Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9264

 1                           Wednesday, 28 October 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.19 p.m.

 5                           [The witness takes the stand]

 6             JUDGE PARKER:  [Microphone not activated] Good afternoon.

 7             THE WITNESS:  Good afternoon, Your Honours.

 8             JUDGE PARKER:  [Microphone not activated] The affirmation you

 9     made still applies.

10             THE WITNESS:  Yes, I understand, sir.

11             JUDGE PARKER:  Thank you.

12             Mr. Djurdjic.

13                           WITNESS: JOHN CROSLAND [Resumed]

14             MR. DJORDJEVIC: [Interpretation] Thank you, Your Honours.

15                           Cross-examination by Mr. Djurdjic: [Continued]

16             MR. DJURDJIC: [Interpretation] Good afternoon, Colonel.

17             Before we go on, may I ask, Your Honours, in connection with

18     Exhibit D389 which was admitted yesterday, I omitted one fact, namely

19     that it was under seal in the Milutinovic case.  Can I now ask you to

20     have that exhibit placed under seal in this instance as well.  The number

21     being D389.

22             JUDGE PARKER:  It will be under seal.

23             MR. DJURDJIC: [Interpretation] Thank you, Your Honours.

24        Q.   Colonel, during your testimonies these days as well as in earlier

25     cases, you repeated time and again that you had met with the competent

Page 9265

 1     members -- no, that you have acquainted competent members of the

 2     General Staff with the disproportionate use of force and that you had

 3     impressed that fact many times on General Dimitrijevic.

 4             MR. DJURDJIC:  Could we have Exhibit P1401.

 5             THE INTERPRETER:  Could counsel please slow down; the

 6     interpreters are unable to catch the numbers.

 7             JUDGE PARKER:  You are well prepared, Mr. Djurdjic, with the

 8     numbers ready, and you are giving them very quickly.  On numbers and

 9     dates and names, it pays to be just a little slower.  Thank you.

10             MR. DJURDJIC: [Interpretation] I will repeat, Your Honours, I do

11     apologise.  So can we see the Milutinovic case transcript, P1401,

12     page 26627, line -- lines 21 to 25.

13        Q.   Colonel ...

14                           [Trial Chamber and Registrar confer]

15             JUDGE PARKER:  The question -- the transcript starts at 9.700 or

16     so, you did correctly mean 26.627, did you?

17             MR. DJURDJIC: [Interpretation] Yes.  Yes, because

18     General Dimitrijevic was the last witness in the Milutinovic case, and he

19     gave his statement on transcript number 26627.  That is the transcript

20     number which was in the Milutinovic case.

21             JUDGE PARKER:  Ms. Kravetz.

22             MS. KRAVETZ:  Your Honour, the transcript of the testimony of

23     Mr. Dimitrijevic is not an exhibit in this case, and I don't believe it's

24     listed in the list of the exhibits that the Defence intends to use with

25     this witness.

Page 9266

 1             JUDGE PARKER:  Mr. Djurdjic.

 2             MR. DJURDJIC: [Interpretation] I have included it.  It is on our

 3     list, Your Honours.

 4             JUDGE PARKER:  It's always been on the list, has it?

 5             MR. DJURDJIC: [Interpretation] Yes, yes.  As the Milosevic case

 6     transcript, I'm using Milosevic in cross-examining this witness.

 7             JUDGE PARKER:  Did you mean Milutinovic?  You said Milutinovic

 8     earlier, 26.000?  You must have meant Milosevic.  Milosevic 26.627.

 9             MR. DJURDJIC: [Interpretation] General Dimitrijevic was not a

10     witness in the Milosevic case, only in the Milutinovic case.

11     Your Honours, in order not to lose time ...

12                           [Trial Chamber and Registrar confer]

13             JUDGE PARKER:  Exhibit P1401 may be the transcript that you want.

14     That is the exhibit in this trial.

15             MR. DJURDJIC: [Interpretation] Well, I'm not going to quote that.

16        Q.   Mr. Crosland, General Dimitrijevic said that you spoke to him

17     about the excessive use of force and that you had a cassette and he asked

18     you to show that cassette, and that you never handed over that cassette

19     to him.

20        A.   Sir, I don't recall giving a cassette to General Dimitrijevic.  I

21     gave a cassette to General Ojdanic via the FLS.  And as far as I

22     understand from the Foreign Liaison Service, they maintain they never

23     received it.  So where it went to, I do not know.

24        Q.   Colonel, in view of the fact that we have all that in the case,

25     the transcript of which is here, I'm not going to dwell on that.  I'm

Page 9267

 1     just going to say that you never gave any such cassette to

 2     General Dimitrijevic, so we can move on.

 3             JUDGE PARKER:  It's not going to help us for you to say it.  Are

 4     you asking the witness whether he agrees that he didn't give a cassette

 5     to General Dimitrijevic?

 6             THE WITNESS:  As far as I remember, Your Honour, I didn't give a

 7     cassette to General Dimitrijevic.  I said there were -- I showed him

 8     photographs of the bodies from the Donje Prekaze area which was very

 9     early on in 1998, and I told him that these original photographs were now

10     back in various NATO capitals as proof of a massacre that might then be

11     investigated at a later date.  I don't know if that helps, Your Honours.

12             JUDGE PARKER:  Thank you very much.  The position you put to the

13     witness, he agrees with, Mr. Djurdjic, so please carry on as you were

14     going.

15             MR. DJURDJIC: [Interpretation] Thank you, Your Honours.

16        Q.   Colonel, is it the rule when talks are conducted in the

17     General Staff offices with the defence attaches for minutes of meetings

18     where records of those talks to be made as we saw yesterday as the one

19     that we saw yesterday has been made by Jovanovic who was a colonel at

20     that time?

21        A.   Sir, I would understand that both sides would make a report.  As

22     you know, I have indicated in reports that I had these meetings with

23     General Dimitrijevic, General Perisic, and General Krga, and they are

24     part of the reports that I filed during that period.  And I presume the

25     FLS did exactly the same, but I didn't obviously see their reports.

Page 9268

 1        Q.   Thank you.

 2             MR. DJURDJIC: [Interpretation] Can we have D390 on the screen,

 3     please.

 4        Q.   Colonel, we went through these other items yesterday.  What I'm

 5     interested in now is that the Colonel Jovanovic notes that is this talk

 6     was conducted with you on the 25th of June, 1998, and that you informed

 7     him that from the 15th of May to the 25th of June, you had had numerous

 8     contacts in Great Britain with military personnel in the armed forces, in

 9     the foreign ministry in NATO, with the chief of the military intelligence

10     services, with the chief of operations of the General Staff of Great

11     Britain, the Chief of General Staff, the chief for foreign political

12     affairs in the Ministry of Defence and the commander of the NATO corps

13     for rapid interventions, General Jackson.  And that you had informed them

14     about the situation in Kosova-Metohija, and then you also advanced the

15     positions that you advocated?

16        A.   That's correct, sir.

17        Q.   Colonel, at that time -- you have three daughters at that time,

18     did the wedding of one of your daughters take place as well?

19        A.   The wedding of my eldest -- our eldest daughter, rather, took

20     place on the 8th of June, 1998.

21        Q.   Thank you.

22        A.   Sorry, 6th of June.  I beg your pardon, I shall get slapped by my

23     daughter.

24        Q.   Colonel, you told us that you had sent a report to the Ministry

25     of Defence on the 28th of May, while at that time you were in

Page 9269

 1     Great Britain so that you were in no position to send an [indiscernible]

 2     report on the 28th of May, 1998.

 3        A.   I am sorry, I don't understand the question.  If you are saying

 4     that I couldn't have sent a report, I was still in touch with my -- the

 5     person who was standing in for me in Yugoslavia, and if a report was sent

 6     via me - because there was going to be a very senior meeting on the 8th

 7     of June - that would have been an update to me before this very important

 8     meeting on the 8th of June.  But as I don't know which report you are

 9     referring to, I'm a little bit lost, I am afraid.

10        Q.   Colonel, that is Exhibit P1405.  Asked by the Prosecutor whether

11     you had participated in the daily tour of western Kosovo, you replied,

12     "yes, I had."  That is page 9162, pages 19 to 25.  The Prosecutor asked

13     you, and to his question you replied, "There are houses burning in the

14     north of Decani."

15             "Can you tell us exactly what this part referred to, the houses

16     north -- in the north part of Decani?"

17             And you replied saying that you were there personally on the 26th

18     and 27th, whereas on those dates you were in Great Britain, so you were

19     in no position, you were unable to send a report on the 28th of May,

20     whereas you had told us that you -- you told us that you had sent a

21     report on the 28th of May.

22        A.   Mr. Djurdjic, yesterday there were several mistakes in your

23     testimony.  Perhaps I shouldn't be saying this, Your Honours, and I

24     respect your charges.  If there has been a mistake, then I can assure you

25     it is not my intention to mislead the Court.  You were asking me, as I've

Page 9270

 1     said many times, to repeat my reports that were made 12 years ago.  I

 2     think in order to get things moving we need to go either back to the

 3     original report, or we are going to go round and round in circles.  And

 4     it's not my intention to mislead anyone in this report -- or in this

 5     court, rather, as I understand the implications that are concerned with

 6     it.

 7             If there has been a mistake, I apologise, but I cannot recall

 8     reports that you keep bringing up without seeing these reports.  And I

 9     ask that they go back to original report that was tendered.

10             JUDGE PARKER:  Mr. Djurdjic, the Chamber has not been interfering

11     with your cross-examination, but it was a constant feature yesterday that

12     you would put to the witness a matter from a report without showing the

13     witness the report, and he almost went hoarse saying, well, I can't

14     remember in detail.  If it's in my report, it is correct, or something to

15     that effect.

16             THE WITNESS:  Thank you, Your Honour.

17             JUDGE PARKER:  Now, if you feel that there's some error in what

18     he has said or in a report, you need to put that specifically to the

19     witness.  And if it is an error in the report, you need to show him the

20     report, so that he can then answer with a clearer memory and recollection

21     than you just ask him about a report on some date in August 1998, and he

22     says, Well, I can't really remember that, but whatever is in there must

23     be right.  I hope that will help you to proceed.

24             MR. DJURDJIC: [Interpretation] Thank you, Your Honours.  I

25     believe that I was clear, but I should repeat.

Page 9271

 1        Q.   Colonel, in examination-in-chief you confirm that you personally

 2     prepared Exhibit P1405 and that you had toured these parts of

 3     Kosova-Metohija.  In this report we see that two days were in question.

 4     This is one fact.  The second fact which I have just now presented to you

 5     is that you were absent, that you were outside Yugoslavia from the

 6     25th of June to the 22nd of June, that you were in Great Britain.  And

 7     I'm telling you that you could not have personally visited these places

 8     that are contained in the report of the 28th and that you had not

 9     dispatched that report.

10             JUDGE PARKER:  Mr. Djurdjic, I think this sort of question is

11     just the point of my comment.  You need first to bring up Exhibit P1405,

12     allow the witness to see it.  Ask him then whether he made that report.

13     If so, how could he make it if he also said he was in the United Kingdom

14     at that time, and see whether he agrees with you or disagrees with you.

15     We start with Exhibit P1405.

16             THE WITNESS:  Your Honours, excuse me.  I believe I was in

17     England as stated on the -- a current document on the -- well, it's not

18     now, it's gone.  It was from the 15th to the 22nd of June.  So I don't

19     know quite how the 28th comes into it, by which time I think I was

20     probably back in Belgrade.  But I'm --

21             JUDGE PARKER:  That is the document now back again before you.

22     You mention in the second paragraph -- or there it is a document not of

23     you, but of the --

24             THE WITNESS:  From the FLS, sir, yes, the Foreign Liaison

25     Service.

Page 9272

 1             JUDGE PARKER:  Colonel Jovanovic.

 2             THE WITNESS:  That's correct, sir.  He --

 3             JUDGE PARKER:  And he notes your absence from the 15th of May to

 4     the 22nd of June.

 5             THE WITNESS:  That period covered our daughter's wedding, sir.

 6     So if it's the 28th of June, I would suspect that I was back in Belgrade.

 7             JUDGE PARKER:  Well, you referred to Exhibit D390.  Now we go to

 8     Exhibit P1405, which is your report.  And this is the document of -- it

 9     seems to be a document dated the 28th of May, not the 28th of June.

10             THE WITNESS:  That is correct, sir, yes, in which case, I presume

11     I would have written this report, yes.

12             JUDGE PARKER:  That was before you went to the United Kingdom?

13             THE WITNESS:  That's correct, sir.

14             JUDGE PARKER:  Yes.  Now, Mr. Djurdjic, you followed that.  What

15     more is it that you want to ask about it?

16             MR. DJURDJIC: [Interpretation] Your Honours, if the witness went

17     to Britain on the 25th and was not here on the 26th and on the 27th, then

18     he could not have sent a report on the 28th of May to the British

19     Ministry of Defence.  And apart from that, in examination-in-chief --

20             JUDGE PARKER:  We are going in circles, Mr. Djurdjic.  Why do you

21     say the witness was in the United Kingdom on those dates in May?

22             MR. DJURDJIC: [Interpretation] He now confirmed that from the

23     25th of May to the 22nd of June he had been in Great Britain.  From the

24     25th of May to the 22nd of June the witness was in Great Britain and not

25     in Serbia.  This is what the witness has confirmed.

Page 9273

 1             JUDGE PARKER:  Sorry, not to my understanding of the evidence.

 2     You have asked him orally several times mixing the dates up in almost

 3     every question.  Now if you want to put to the witness that he was in the

 4     United Kingdom, put it specifically.

 5             MR. DJURDJIC: [Interpretation] Your Honours, is it true, and he

 6     replied to you, the witness did, is it true that Colonel Jovanovic noted

 7     that from the 15th of May to the 22nd of June the witness was in

 8     Great Britain.  This is what he confirmed to you.  Namely, from the 25th

 9     of June to the 22nd of June [as interpreted].  Then you present to him

10     the reports of the 28th of May --

11             JUDGE PARKER:  You've done it again, Mr. Djurdjic, you've

12     switched months.  This is where we are having trouble.  It may be a

13     matter of interpretation, it may be that in your excitement to get a

14     point across that you are putting the wrong month.  We go back to the

15     proposition that in the Exhibit D390, Colonel Jovanovic noted that the

16     witness was absent from the 25th of May to the 22nd of June.  Right.

17             You now want to ask the witness about a report dated the 28th of

18     May; is that correct?

19             MR. DJURDJIC: [Interpretation] I apologise, not from the 25th of

20     May, from the 15th of May, 1998, to the 22nd of June, 1998, is the time

21     when the witness was in Great Britain.  And this is what he has

22     confirmed.

23             JUDGE PARKER:  Can we go back, please, to Exhibit D390.  Yes, the

24     recording there is the 15th of May to the 22nd of June.  Right.

25             THE WITNESS:  Can I help, Your Honours.  When I was in England

Page 9274

 1     covering my -- our daughter's wedding, there was a delegated stand-in or

 2     deputy defence attache which was sworn in and through the FLS to cover my

 3     absence.  Now, if this is where the supposition is that a report sent by

 4     BRITMILREP, that would have been covered by my deputy in my absence in

 5     the full knowledge of the FLS.  So if that is the -- if that is where the

 6     misinterpretation or juxtaposition is, that may be where it's come about.

 7     And I know that they were touring in western Kosovo in the Decani area

 8     where there was considerable trouble.  But if that's where the confusion

 9     has happened, Your Honours, then again I apologise, but the FLS would

10     have been informed that a properly recognised deputy was standing in

11     during this absence of mine.

12             JUDGE FLUEGGE:  May I ask just a question.  Perhaps there is a

13     problem with the interpretation again or translation of this document.

14     Have you been in Great Britain for that time one week or for five weeks,

15     if you recall?

16             THE WITNESS:  Your Honour, the date is as on the document now on

17     the screen.  I was there for approximately three weeks or four weeks,

18     15th of May to the 22nd.

19             JUDGE FLUEGGE:  This is approximately five weeks.  But if you

20     look to the original document in B/C/S, I can't -- think it's quite

21     illegible, but it could be the 16th of June to the 22nd of June.

22             THE WITNESS:  Yes, you are quite correct, sir.  I think that's

23     where the mistake has come.

24             JUDGE FLUEGGE:  Perhaps that is the reason for this

25     misunderstanding.  Can we zoom in that perhaps a little bit.  The second

Page 9275

 1     paragraph of the document.

 2             THE WITNESS:  Yes, it says 15/06 to 22/06 of --

 3             JUDGE FLUEGGE:  15th of May.  Now it's very clear.  Thank you.

 4             MR. DJURDJIC: [Interpretation] I apologise, but it's quite clear

 5     that in this document it is written 15th of May until the 22nd of June,

 6     and this is exactly how it was translated, so both linguistical versions

 7     are quite okay.  There is no mistake in translation here, therefore, I

 8     would like to point out the following:  Colonel --

 9             JUDGE PARKER:  Just a minute, Mr. Djurdjic, we are going to sort

10     this through.  There has been too much confusion about it to leave it as

11     it is.  Thank you for that.  Could the Court Officer now bring up

12     Exhibit P1405.  Mr. Crosland, this is a report which I think you see,

13     appears to be dated the 28th of May, 1998.

14             THE WITNESS:  That's correct, sir.

15             JUDGE PARKER:  And this appears be to a report in the period in

16     which, according to the previous exhibit, you were in the United Kingdom.

17             THE WITNESS:  That's correct, sir, and it would have been done by

18     my deputy.

19             JUDGE PARKER:  So this report here you see from the BRITMILREP,

20     is a report prepared by your deputy rather than yourself.

21             THE WITNESS:  Because I would have been in England at that time.

22     Correct, sir.  So if that is where the confusion it, my apologies.

23             JUDGE PARKER:  Right.

24             Now, Mr. Djurdjic, you've understood that so far?  The witness

25     tells us this report here on the screen was prepared by his deputy, not

Page 9276

 1     by him.  Now, do you want to question then something about the content of

 2     the report or the witness's knowledge of it?

 3             MR. DJURDJIC: [Interpretation] Your Honours, my initial position

 4     was exactly this, and now we've confirmed it was correct.  And I asked

 5     how come that in direct examination he stated that he personally visited

 6     Kosovo on the given two dates, and that he personally wrote this report.

 7     This is what he stated when questioned by the Prosecution.

 8             JUDGE PARKER:  The transcript reference?

 9             MR. DJURDJIC: [Interpretation] The reference is 9162, lines 19 to

10     25.  Actually, the pertinent lines are 24 and 25.

11             "Sir, did you participate in the two-day visit to Kosovo on the

12     two given dates?"

13             "A.  Yes, I did."

14             So this is page 9162, lines 24 and 25.

15             JUDGE PARKER:  Can you help us there, Mr. Crosland?

16             THE WITNESS:  Your Honours, as I've already stated this report -

17     my error - it was done by my deputy.  He was travelling with two very

18     experienced other defence attaches, the American and the Canadian.  So I

19     would -- the author of the report, forgive me, that is a mistake, I've

20     admitted to that.  The actual content, I would suggest, is true because

21     there were two experienced other observers in this particular tour.  But

22     I apologise again if I've made a mistake over a report.

23             MR. DJURDJIC: [Interpretation] Thank you.

24        Q.   Colonel, you told us that you were in Kosovo and Metohija between

25     the 12th and 14th of January, 1999.  This was on page 9184 of our

Page 9277

 1     transcript, lines 16 to 18, and you gave an affirmative answer in lines

 2     19 to 22.  And I would like to put to you D005-0321.

 3             MR. DJURDJIC: [Interpretation] If we could see it, please.

 4        Q.   This is a transcript in the Milosevic case.

 5             MR. DJURDJIC: [Interpretation] If I could kindly see page 8.000.

 6     I apologise, 8.005, lines 11 to 12.

 7        Q.   You answered in lines 13 to 15:

 8             "I believe I was in Belgrade.  I had only just come back from the

 9     UK, and I was getting ready to go to Kosovo the following day."

10        A.   Yes, that's correct.  I've already informed the Court, I arrived

11     on the afternoon of Racak, the incident you are talking about presumably.

12     Because of the serious nature, I was asked to go down immediately to

13     Kosovo.

14        Q.   Yes, but you said that you arrived to Belgrade on the 14th, and

15     here in this -- that's what you stated here in this transcript.  And you

16     told us that you were, in fact, in Kosovo and Metohija between the 12th

17     and the 14th.

18        A.   Mr. Djurdjic, if we are going to get into a hammering match about

19     dates, then I would ask you, please, to go back to the original

20     documents.  Yesterday you produced two undated videos, one showing

21     Ambassador -- the American ambassador - I've forgotten his name - going

22     to Junik, where on that visit he sat with a representative of the Kosovo

23     Liberation Army, which quite naturally upset the Yugoslav

24     representatives.

25             You then switched to Malisevo, and you showed another undated

Page 9278

 1     video.  Into that film came an old gentleman with a shopkaron [phoen], a

 2     classical Albanian hat, outlining the snows of the mountains, a normal

 3     Albanian hat.  That gentleman lived in the black and white house that was

 4     showed on the video where I was personally interrogated twice.

 5             I think if there are mistakes in my transcripts, some of it,

 6     which the Court has admitted, came about by cutting and pasting, which is

 7     a problem with computers.  If I've made an error, Your Honours, I

 8     apologise.

 9        Q.   General, I put to you what you told us during the direct

10     examination by Madam Kravetz, that between the 12th of the 14th of

11     January of 1999 you were touring Kosovo and Metohija.  And after that I

12     put on the screen a part of the transcript from the Milosevic case where

13     you stated that on the 14th of January, 1999, you came back from the UK.

14     So it is either or; you could not have been both in the UK and in -- or

15     rather, in Belgrade and in Kosovo and Metohija on the same time.  So this

16     is my question.

17        A.   Thank you for the promotion to general, but I never made general.

18     I repeat, I arrived, as far as I can remember, in the evening or the late

19     afternoon of the 14th in Kosovo.  What are you trying to prove?  I beg

20     your pardon, Your Honours.

21        Q.   Well, this means that you weren't touring Kosovo between the 12th

22     and the 14th, as you previously stated because you only arrived to

23     Belgrade from the UK on the 14th.

24        A.   Well, okay, I may have missed the 12th.  I seem to recall I went

25     straight, because the seriousness of the situation, down to Kosovo.

Page 9279

 1     Yesterday, we had years missing between your dates of various things that

 2     happened.  We've got one day missing here, so I apologise for that.

 3        Q.   All right.  Colonel, you told us that you came back to Racak on

 4     the 16th of January, 1999.

 5             MR. DJURDJIC: [Interpretation] I would kindly ask the same

 6     exhibit, page 7945, lines 20 to 25.

 7        Q.   You were asked by the Prosecutor:

 8             "I would like to go back to the 15th of January, 1999, the

 9     incident known as Racak."  And then you started your answer.  And on page

10     7949 in lines 6 and 7 when asked whether you were there at the time of

11     the conflict itself, you answered in lines 8 and 9:

12             "I arrived just after the major conflict, but there was

13     considerable activity ongoing that afternoon and throughout that day."

14        A.   Mr. Djurdjic, yes, I've shown there in lines, 12, 13, 14, 15,

15     et cetera, this area around Stimlje, Racak incident area was where the

16     road was blocked by the KLA at a place called Crniljevo.  In military

17     terms the Serbs had a very strong force deployed in that area for, I

18     would think months probably.  So there was always an interest in that

19     area as to how the situation was progressing.  This situation just didn't

20     flare up.  As I've told the Court, I think three MUP were killed and the

21     Racak incident took place.  But the forces were there in place for quite

22     some time.  I think you are trying to make -- as I've said yesterday on

23     many occasions, it was a very fluid situation.  And to take a particular

24     incident and try and scrutinize that down, I would suggest, is not the

25     way to get to the bottom of the problem.  And I'm not quite certain which

Page 9280

 1     way you are going, to be quite honest.

 2        Q.   Colonel, on the 15th of January, 1999, were you present in Racak

 3     during the combat activities when the artillery guns were fired?

 4             JUDGE PARKER:  Ms. Kravetz.

 5             MS. KRAVETZ:  Your Honour, I believe the witness has already

 6     answered this question.  It has been put to him in different ways.  He

 7     has already indicated when he arrived back in Kosovo, and indicated that

 8     was after the incident.  It's been covered in cross-examination --

 9             JUDGE PARKER:  Well, it may be clear to you; it's not quite yet

10     clear to me, Ms. Kravetz.  I think Mr. Djurdjic should continue.

11             THE WITNESS:  So as far as I can remember, the incident happened

12     and was over by the 14th.  Quite rightly the Yugoslav authorities were

13     not allowing people into the area because it was not declared a safe

14     area.  So there was an ongoing military incident in that area, which was

15     observable, and quite rightly, they weren't allowing us any closer other

16     than the OSCE/Kosovo Verification Mission, KVM.

17             MR. DJURDJIC: [Interpretation]

18        Q.   Colonel, the core issue here is that in these quotations that I'm

19     putting to you now, and I have more of them, you did state that on the

20     15th of May you were in the immediate vicinity of Racak during the time

21     of conflict.  So is that right what is written in these transcripts?  And

22     as I said I have more of these if you want me to show them to you.

23             MS. KRAVETZ:  Your Honour --

24             THE WITNESS:  Sir, I've just told you that an ongoing military

25     incident is not an area that you allow outsiders into for very obvious

Page 9281

 1     reasons.  Now, "within the immediate vicinity of the area" could be

 2     within a couple of kilometres, et cetera.  So, yes, I was there.

 3             JUDGE PARKER:  Now, Ms. Kravetz.

 4             MS. KRAVETZ:  The witness has already responded.

 5             JUDGE PARKER:  Thank you.

 6             Could I ask something very direct.  Are you able to recall now

 7     whether you were in Racak on the 15th of January?

 8             THE WITNESS:  Your Honour, in Racak is not possible because it's

 9     a village off the main road.  So in the area or the vicinity of Racak, I

10     would suggest, is a more general term.

11             JUDGE PARKER:  The point is, were you there in your recollection

12     on the 15th, or was it on the 16th that you arrived, or is it unclear to

13     you?

14             THE WITNESS:  To be honest, it is unclear, sir.  But if you say

15     "in Racak," that is not accurate.  It is in the vicinity of Racak.  A

16     military incident covers a big area, and as I've said before quite

17     obviously, they would not allow other people into the area until they

18     declared it safe.

19             JUDGE PARKER:  Thank you.

20             Yes, Mr. Djurdjic.

21             MR. DJURDJIC: [Interpretation]

22        Q.   Colonel --

23             MR. DJURDJIC:  I would kindly ask the Exhibit D005-0649,

24     paragraph 15.  This is page 5 in English.

25        Q.   This is your statement from December 1992, Colonel.  Which says

Page 9282

 1     the following:

 2             "In Racak there was also KLA with a small headquarters.  In the

 3     attack on 15th of January, 1999, which I witnessed from my arrival

 4     sometime in the afternoon to about 1400 hours involved element of

 5     Colonel Jelic's 243rd Mechanised Brigade and included BOV-3s, T-55

 6     mortars, and D-30 Howitzers."

 7        A.   If I have written that report, then that is a correct example.

 8     But as I say, I would suggest you are saying "in Racak."  It's not

 9     possible to be in Racak.  It's in the vicinity of that area.

10        Q.   Thank you.  I accept that.  But the point is that you claim both

11     in the Milosevic case and here in this statement that you were present

12     and that you observed from that place where you were on the 15th, that

13     you observed the fighting.  You even described some details here.

14     Whereas to us here, you said that you arrived to Racak on the 16th, after

15     the incident had already taken place.

16        A.   We are now getting back to dates again.

17        Q.   Not, sir.  It is one thing to be present during the event and

18     witness it, and it is another thing to arrive afterwards.

19        A.   Mr. Djurdjic, I have just tried to explain you cannot witness an

20     action going on when there is heavy firing going on, because the

21     military, quite rightly, do not want outsiders looking over their

22     shoulders.  You can be in the area which could be as far away as

23     10 kilometres away when heavy gun-fire would be falling in areas, and you

24     can observe the gun-fire from a considerable distance as has been proven

25     with Lord Ashdown in the Suva Reka area.  Now, you are not physically in

Page 9283

 1     the vicinity.  You are quite some way away.

 2             MR. DJURDJIC: [Interpretation] I would kindly ask the usher to

 3     see once again D005-0321, page 8.005, lines 11 and 12.

 4        Q.   Colonel, when asked:

 5             "Given the events in Racak given that you were there on January

 6     the 15th, did you report on that?"

 7             You answer in line 18:

 8             "I sent -- there is a written report, as I think had been

 9     explained to you, and I used to be in communication by other means back

10     to both Belgrade and to the United Kingdom."

11        A.   Sir, that is exactly correct.  Some reports I sent by secure

12     communication direct to the Ministry of Defence, particularly if they

13     were of such a serious nature as was currently going on in the Racak

14     area.  There may well not have been a written report, because there was

15     not time to write a report.

16        Q.   Colonel, but you told us here during the direct examination that

17     you only came to Racak after the event on the 16th and 17th of January,

18     1999.

19        A.   Well, we are back to dates again, Your Honour.  And if there's

20     been confusion, there's been confusion.  What was quite obvious, was that

21     there had been a very serious incident in the Racak area which was

22     covered by OSCE and KVM.  If I came a day later, then I apologise.  What

23     are you inferring, my integrity?  I want an answer, please.

24             JUDGE PARKER:  That will do.  That will do, Mr. Djurdjic.

25             Mr. Crosland, the evidence that you have given leaves me quite

Page 9284

 1     unclear about two subject matters relating to Racak.  The first is this:

 2     Do you have a clear recollection of when you arrived and how long you

 3     were there?  If so, what is that recollection?

 4             THE WITNESS:  Sir, I don't have a clear recollection, no.  Twelve

 5     years ago, and I am afraid things have moved on.  But my initial reports,

 6     I believe, are the true reports.  I've been questioned, as you know,

 7     Your Honour, many times by this court.  I've seen many reports be cut and

 8     pasted and mistakes have been made.  And as we saw yesterday,

 9     Mr. Djurdjic had the same problem.  Now, if that has happened, I'm sorry,

10     but I can't be held responsible for that.  If there is an error of a day

11     or two days, I apologise.

12             JUDGE PARKER:  The content of the written reports appear to have

13     been made by you relating to the Racak incident; are those contents,

14     contents that you vouch for?

15             THE WITNESS:  Sir, I'd have to recheck.  I think I've been asked

16     about Racak on several occasions.  I would have to recheck that.  Under

17     oath I can't tell you definitely which way, sir.

18             JUDGE PARKER:  Were you there in the area of Racak at any time

19     when the conflict was actually occurring?

20             THE WITNESS:  No, I've said that the conflict -- the incident at

21     Racak was over by the time I got there.  I arrived for the aftermath of

22     that particular incident.  And the forces concerned were then still

23     deployed in and around the Racak area.

24             JUDGE PARKER:  You reported on those forces as you saw them?

25             THE WITNESS:  I reported on those forces as I'd seen them, and as

Page 9285

 1     I stated to Your Honours, these forces had been in position for quite

 2     sometime, and occasionally I used to go through their -- or many times I

 3     used to go through their check-points on further into the KLA area as

 4     part of my normal touring in this area.

 5             JUDGE PARKER:  Yes, Mr. Djurdjic.

 6             MR. DJURDJIC: [Interpretation]

 7        Q.   Colonel, at the beginning of your direct examination when asked

 8     by my learned friend, Madam Kravetz, you said that you stand fully behind

 9     your statement given on 31st of October, 2006, and the transcript from

10     the Milutinovic case.  In that statement, and also in your answers to

11     questions asked by Madam Kravetz, you stated that you came to Racak on

12     the 16th and 17th of January, 1999.  In the evidence I put to you from

13     the Milosevic case and in your statement that you gave in the year 2000,

14     you stated that you were present during the conflict in Racak on January

15     the 15th, and this final report that you just talked about was not

16     included into evidence by the Prosecution, and the Defence doesn't have

17     it.  All we know is that you stated that you were present in Racak on the

18     15th during the fighting.

19             So the things are very clear.  You could not have been in Racak

20     on the 15th during the event if you came there on the 16th and the 17th.

21     So your statements in two cases are entirely different.

22             JUDGE PARKER:  Ms. Kravetz.

23             MS. KRAVETZ:  Your Honour, the witness has just clarified this

24     matter when responding to questions from the Bench.

25             JUDGE PARKER:  Carry on, Mr. Djurdjic.  It may have been dealt

Page 9286

 1     with sufficiently, but is there any further comment, Mr. Crosland, you

 2     want to put to what has just been put to you by Mr. Djurdjic?

 3             THE WITNESS:  Thank you, Your Honour.  I think there may have

 4     been a mistake in translation or interpretation, for which again I

 5     apologise.  This incident, as I've attempted to explain, the nature of

 6     the incident, I would suggest, is slightly more serious than actually

 7     questioning which date is the actual date.  I've said that I arrived

 8     after the incident had happened.  I have detailed knowledge that I've

 9     indicated to you about which units were involved in that particular

10     incident because of my more or less daily touring in the area.  Now, I

11     apologise if I've made a mistake on that to the Court.  But what I've

12     said I would hope is accepted.

13             MR. DJURDJIC: [Interpretation]

14        Q.   Colonel, I accept your explanation, but you also gave an oath in

15     the Milutinovic case when you gave a different statement, so this is why

16     I put this to you.  And you also gave such a statement in the year 2000

17     because it is very relevant whether you directly witnessed the incident

18     or not.  I apologise for your answers [as interpreted] if they in any way

19     were hurtful to you.  This was certainly not my intention.

20             MR. DJURDJIC: [Interpretation] Your Honours, thank you, I have no

21     further questions for Colonel.

22             JUDGE PARKER:  Thank you very much, Mr. Djurdjic.

23             Ms. Kravetz, would you think it convenient to have a break now

24     before you re-examine, or would you wish to go straight into

25     re-examination?

Page 9287

 1             MS. KRAVETZ:  I have very few questions.  I think I can finish

 2     before the break.  I hope so.

 3             JUDGE PARKER:  We were giving you an opportunity to collect your

 4     notes or your thoughts, but we are happier to carry on.

 5             MS. KRAVETZ:  Yes, I'm happy to have a break if that's what the

 6     Court wishes.

 7                           Re-examination by Ms. Kravetz:

 8        Q.   Sir, I would like to direct your attention first to your

 9     statement.

10             MS. KRAVETZ:  If we could have that up on the screen.  It's 65

11     ter 02645.  I don't know if you have it before you still or not.  I would

12     like for page 8 to be displayed, and it's page 10 in the B/C/S.

13     Specifically I'm looking for paragraph 35.  I think that's there.

14        Q.   You were asked some questions about your whereabouts in the

15     period of May or June 1998, And I think that specific issue has been

16     clarified.  But I just wanted to direct your attention to this paragraph

17     which refers to one of the sitreps that was shown to you which the

18     Defence.  And it is referred in the statement as Exhibit 00687, and in

19     these proceeds it's Exhibit P10 -- 405.

20             I just wanted to ask you a question.  In your statement you

21     indicate that that sitrep and the next one of 5th of June was produced --

22     were produced by Nick Slinger.  Could you explain to the Court who he

23     was.

24        A.   That was my authorised deputy during my absence in the

25     United Kingdom.

Page 9288

 1        Q.   So that's the person you spoke about earlier during your

 2     testimony.

 3        A.   That's correct, ma'am, yes.

 4        Q.   And in your statement you say that to your position of DA, you

 5     can sponsor the contents of this report.  And do you still stand by that?

 6        A.   As I explained to the Court, Colonel Slinger, was in the company

 7     of both an American -- senior American and a senior Canadian defence

 8     attache.

 9        Q.   Thank you for that.

10             MS. KRAVETZ:  Now if we could have Exhibit D331 up on the screen:

11     And I would like page 2 to be displayed for the witness.

12        Q.   This is a daily combat report that you were shown of the 3rd Army

13     to the General Staff of the VJ that you were shown yesterday during

14     cross-examination by my learned colleague from the Defence.  And my

15     learned colleague referred you to item 3 which is an item called --

16     entitled "Situation in Army Units" and referred you to the sentence that

17     says, It is stated that army units, [indiscernible] units in accordance

18     with a decision on engagement.  And you agreed that that's what the

19     report stated.  And then you made the comment, I just draw the Court's

20     attention to the amount of ammunition fired.  And -- which is -- we see

21     displayed in -- on the screen at the bottom of this page.  And I just

22     wanted to ask you about that comment, if you could elaborate why you wish

23     to draw the Court's attention to the amount of ammunition fired according

24     to this report.

25        A.   In this particular instance the amount of ammunition fired, just

Page 9289

 1     indicates, as I've said all along, the amount of wanton damage that was

 2     done throughout Kosovo, most of it due to firing from the Yugoslav

 3     forces.

 4             JUDGE PARKER:  Mr. Djurdjic.

 5             Sorry, I thought you had finished.

 6             MS. KRAVETZ:  And I should have indicated, Your Honours, that

 7     this answer was given at transcript page 9243.

 8             JUDGE PARKER:  We've interrupted the witness.

 9             Yes, Mr. Djurdjic.

10             MR. DJURDJIC: [Interpretation] If this answer has been completed,

11     and I believe it has, I object because this is an opinion that has been

12     uttered here, and the witness was not present and he could not have been

13     aware about the nature of the operations.

14             JUDGE PARKER:  I think the factual foundation for his evidence is

15     sufficient, Mr. Djurdjic.

16             Carry on, Ms. Kravetz.

17             MS. KRAVETZ:

18        Q.   And just to follow up on the answer that you just gave since we

19     have -- we did interrupt you, you say in this particular incidence the

20     amount of ammunition fired just indicates what you said all along, the

21     amount of wanton damage.  Why specifically when you saw this report that

22     came to mind?  I mean, what was specific information in this report that

23     made you want to draw the Court's attention to this issue?

24        A.   All the way along, the questioning has been doubting the amount

25     of damage that was done throughout Kosova-Metohija during the 1998 to

Page 9290

 1     1999.  I don't understand why the Defence doesn't either understand that

 2     or accept it.  But I, as I've stated, I saw a huge number of villages

 3     that were destroyed, and this was viewed by both the Trojka group, the

 4     G8, Lord Ashdown, and many other international agencies.  And as I've

 5     said, if you go and destroy the houses of he local population --

 6        Q.   Sir, if I may interrupt you there, I'm just asking specifically

 7     about this report.  If there was something specific about this report

 8     that made you want to draw the Court's attention to the amount of

 9     ammunition fired that's indicated there.

10        A.   If we are looking at specific calibres, then the 20-millimetre,

11     the 30-millimetre rounds are anti-aircraft shells, which as I said, were

12     used to flatten houses which is not really a peacekeeping type of weapon.

13     That's just a personal comment.

14        Q.   Thank you.  And just one final point, you have been asked several

15     questions about the Racak incident, and if you were there when it

16     occurred and the dates that you arrived back to Kosovo in January.  In

17     response to a question of Judge Parker today, and this is at page 21 of

18     the transcript, you were asked if you were there in the area of Racak at

19     any time when the conflict was actually occurring, and you said:

20             "No.  The incident of Racak was over by the time I got there.  I

21     arrived for the aftermath of that particular incident."

22             Do you recall or have any information as to when - and I'm

23     referring at what time of the day - or the actual incident or the attack

24     on the village of Racak took place?

25        A.   No, because I wasn't present when the attack took place.  So I

Page 9291

 1     can't help you on that.

 2        Q.   Okay.

 3             MS. KRAVETZ:  Thank you.  Your Honours, I have no further

 4     questions for this witness.

 5             JUDGE PARKER:  Thank you, Ms. Kravetz.

 6             Well, you'll be pleased to know that that concludes the questions

 7     for you, Mr. Crosland.

 8             THE WITNESS:  Thank you, Your Honour.

 9             JUDGE PARKER:  The Chamber would like to thank you for your

10     further attendance here, and the assistance that you've been able to give

11     us over now two and a half days.  We are sorry that you have delayed --

12     been delayed longer than you had anticipated, but it has been necessary

13     to conclude your evidence satisfactorily.  We thank you, you may of

14     course now return to your normal activities.

15             THE WITNESS:  Thank you, Your Honour.

16             MS. KRAVETZ:  Your Honour, before we break --

17             JUDGE PARKER:  The witness.

18             MS. KRAVETZ:  The witness may be excused.  Yes, it's not related

19     to this witness.

20             JUDGE PARKER:  Thank you, indeed.

21                           [The witness withdrew]

22             JUDGE PARKER:  Ms. Kravetz.

23             MS. KRAVETZ:  I have a very small matter to raise, that I wish to

24     deal with before we break.

25             And this concerns an oral application to change the status of

Page 9292

 1     portions of the transcript of the testimony of a previous witness,

 2     Mr. Phillips, from confidential to public, and also change the status of

 3     an exhibit that was tendered through this witness from under seal to

 4     public.  Since this witness gave evidence, the Rule 70 provider has

 5     reviewed the transcript of this testimony.  And portions of the testimony

 6     were given in private session in order to protect the confidentiality of

 7     certain documents that had been provided to the Office of the Prosecution

 8     under Rule 70.  Having reviewed the transcript, the Rule 70 provider is

 9     now happy to release these portions of the transcript to the public, and

10     I can indicate the transcript pages which are concerned, just for

11     reference.  And these are transcript pages 8713 to 8737, 8790 to 8793,

12     8799 to 8823, and 8831 to 8840.  So these are the pages of the transcript

13     which were in private session, and we would ask for those to be released

14     to the public.

15             There's also one exhibit.  This is Exhibit P1312 which was

16     admitted under seal and again the Rule 70 provider has authorised us to

17     make that a public exhibit.  So we would ask -- it's a double motion for

18     those two issues to be granted by the Chamber.

19             JUDGE PARKER:  Is there any observation, Mr. Djurdjic?

20             MR. DJURDJIC: [Interpretation] Well, in order to waste too much

21     time here today, I would kindly ask for you to allow us some time to

22     consider this.  I'm rather surprised with this move by the Prosecution.

23     I would have expected them to consider this issue before the witness came

24     to testify, so to consider the possibility to remove the confidentiality.

25     But now it seems that after the testimony was given, they have thought

Page 9293

 1     about the possibility to remove the confidentiality from the testimony

 2     and this also includes some exhibits.

 3             MS. KRAVETZ:  Your Honour, if I can briefly address that.  The

 4     issue of the confidentiality of this portions of the transcript is not a

 5     matter that -- for us to deal with.  It's for the Rule 70 provider to

 6     authorise and the -- obviously we can only send the complete transcript

 7     of the testimony to the Rule 70 provider once the witness has completed

 8     his testimony, and we proceeded in this same fashion with the transcript

 9     of the testimony of the other Rule 70 witness, Mr. Shaun Byrnes.

10             JUDGE PARKER:  Can you tell us, Mr. Djurdjic, what it is that you

11     think you would need to reflect upon?  It's evidence that has been given.

12     There's a transcript of it.  And there's one exhibit.  The witness,

13     because of the position taken by the provider, was received in private

14     session and treated as confidential.  That was solely because of the

15     position of the provider.  The provider now says, well, we've looked at

16     what has been said, and we are content for it now to be a matter of

17     public knowledge.  It's not clear to me what it is that -- how it would

18     adversely affect you if it became public.

19             MR. DJURDJIC: [Interpretation] Now I'm quite clear on the matter,

20     and I agree.  I wasn't clear before.

21             JUDGE PARKER:  Thank you very much.  The pages --

22                           [Trial Chamber and Registrar confer]

23             JUDGE PARKER:  The confidential recording of part of the evidence

24     of the witness Michael Phillips, as identified in the submission of

25     Ms. Kravetz, will now be made public and similarly the exhibit to which

Page 9294

 1     she specifically referred.

 2             MS. KRAVETZ:  Your Honour, just for the record, I do want to

 3     clarify one point.  In portions of those transcript pages, there are also

 4     exhibits that the Defence used and which were tendered under seal.  We

 5     are not authorised, as they are not our exhibits, to request that the

 6     seal be lifted, so should the Defence wish to make those exhibits public

 7     exhibits, they would need to file their own or -- send their own request

 8     to the Rule 70 provider with regard to that.  So --

 9             JUDGE PARKER:  That's not affected by your motion.  Your motion

10     is only the oral evidence.

11             MS. KRAVETZ:  That is true, Your Honour.

12             JUDGE PARKER:  And one exhibit which you've identified.

13             MS. KRAVETZ:  Which is our exhibit, yes.

14             JUDGE PARKER:  We've made our order in respect of those matters

15     only.  Thank you.

16             Now, we wish to hear the submissions of counsel in respect of the

17     proposal concerning witness K87, and for that purpose we will adjourn now

18     to resume at 10 minutes past 4.00 with a view to hearing those

19     submissions.

20                           --- Recess taken at 3.36 p.m.

21                           --- On resuming at 4.11 p.m.

22             JUDGE PARKER:  Before we hear submissions under Rule 98 bis, the

23     Chamber would like to deal with one matter, which is the Prosecution's

24     third motion to amend the Rule 65 ter exhibit list.  This arose at the

25     time of the evidence given by Aleksandar Vasiljevic in June.  It was

Page 9295

 1     proposed to add 17 documents to the Prosecution's Rule 65 ter list.  That

 2     was opposed by the Defence in submissions given on the 8th of June.  The

 3     Chamber, by oral decision on the 8th of June, allowed the documents to be

 4     put to the witness Vasiljevic, and those documents were marked for

 5     identification pending this decision and a decision on a motion made in

 6     the course of the hearing then for the admission of each of those

 7     documents into evidence.  Vasiljevic was specifically questioned by the

 8     Prosecution only in respect of two of the 17 documents, and there was no

 9     cross-examination on any of them.

10             There is no specific justification given for the Prosecution's

11     delay in seeking to add the documents to its exhibit list in the

12     circumstances that have been mentioned, but each of the documents were

13     documents that had been referred to or relied upon by Mr. Vasiljevic in

14     the preparation of his evidence.

15             The Chamber is of the view that the late addition of these

16     documents to the Rule 65 ter list would not, in the circumstances that

17     we've described, prejudice the rights of the accused.  I've mentioned

18     that during the evidence, the Prosecution also sought then to tender each

19     of the 17 documents as exhibits.

20             The documents themselves relate to deployment of MUP and VJ

21     forces in Kosovo at times relevant to the indictment.  The documents were

22     issued by official sources, as indicated either by official stamps or

23     seals or the signatures of persons holding positions of authority.  In

24     those circumstances, the documents are considered to have a sufficient

25     probative value for the purposes of accepting their admission into

Page 9296

 1     evidence.

 2             The Chamber is able to reach that conclusion essentially on the

 3     basis of the 17 documents themselves as it is not -- it is not the case

 4     that there has been any detailed discussion of the documents, their

 5     contents, or their reliability in the evidence of the witness Vasiljevic

 6     or any other witness.

 7             Having regard to those matters, the Chamber is persuaded in the

 8     end that it would be in the interest of justice, first, to allow the 17

 9     documents to be added to the Prosecution's Rule 65 list, they are set out

10     in Appendix A of the corrigendum to that list.  And the Chamber is

11     further of the view that each of those documents should be admitted into

12     evidence.  They will be the orders of the Chamber.

13             We now come to the question of Rule 92 quater, and the evidence

14     that is proposed to be tendered of the witness known in these proceedings

15     as K87.

16                           [Trial Chamber and Registrar confer]

17             JUDGE PARKER:  The documents I've mentioned in the respect of the

18     previous motion will be admitted as public exhibits.

19             Mr. Stamp.

20             MR. STAMP:  Thank you, Your Honours, and good afternoon.  The

21     motion was filed confidentially and the issue was just raised to me as to

22     whether or not this hearing should be confidential.  Actually, I'm not

23     sure that it needs to be if we express ourselves in a manner that does

24     not reveal any confidential information.  But I'm in the hands of the

25     Court in that regard.

Page 9297

 1             JUDGE PARKER:  I'm not inclined at the moment to see reason for

 2     continued confidentiality.  The normal practice is to file matters

 3     confidentially where there is likely to be personal information,

 4     including information as to health of a person, including a witness, but

 5     it would seem at the moment that that is not really a critical issue on

 6     this present application.

 7             MR. STAMP:  Very well, Your Honour.  Thank you.  I'll proceed,

 8     and if myself and I'm sure counsel on the other side think that we need

 9     to go into private session, we'll make the appropriate application.

10             Your Honours, if it pleases you, the Prosecution refers to the

11     motion filed on the 22nd of October, that the statement and transcript of

12     K87 be received under Rule 92 quater.  And for the purpose of these

13     arguments, I adopt the submissions made in the written file.

14             There is not much that I have to add to it.  The matter is

15     squarely before Your Honours as a matter to exercise your discretion as

16     to whether or not you should have available to you at the end of the case

17     the documents in question.  The issue is admissibility at this stage, not

18     weight.  Indeed, most of the arguments that I could think of to add were

19     arguments that would bolster the weight of these statements, arguments I

20     think the Prosecution can and will legitimately make.  But I don't think

21     that this would be the appropriate time to make the arguments about

22     weight.

23             If I may, however, Your Honours, just make one or two additions.

24     In paragraph 15 of the motion, the Prosecution submits that the evidence

25     of K87 is corroborated to the extent that it fits within a larger

Page 9298

 1     framework of evidence in the case.  And that larger framework of evidence

 2     in the case is evidence of the accused's participation in the concealment

 3     of the bodies in Serbia.

 4             I would respectfully ask Your Honours to refer to the statements

 5     of -- or the evidence before the Court of former SUP chiefs Keric and

 6     Golubovic who testified about orders they also received from the accused

 7     in respect to the burial of the bodies.

 8             In respect to -- I also refer the Court to the evidence of K88

 9     that is discussed at paragraph 11 of the motion.  K84, also K84 is a

10     witness who led the initial Working Group investigation of the matter.

11     He took K87's original statement and took statements from other persons

12     including drivers, which these statements form a broad framework of

13     evidence which is substantially corroborate K87 in what he has said was

14     his participation and the participation of the accused.

15             And also, Your Honour, I'd ask Your Honour to refer to the

16     evidence of K93, one of the drivers who -- whose evidence was to the

17     effect that he transported bodies from Serbia and also bodies from one

18     truck that had been left in the Danube river, and that he transferred

19     those bodies to Batajnica.  And that also when the issue arose, when the

20     -- the concealment of the bodies was revealed in the press, he -- the

21     accused was present with General Lukic when his transfer to another part

22     of Serbia take him out of the limelight was discussed.

23             So those are just four or five witnesses.  And as far as K84 is

24     concerned, the documents that accompany his testimony that form part of

25     the broad framework we refer to in paragraph 15, that is substantially on

Page 9299

 1     all fours with the evidence that we propose to receive by the Court.

 2             Secondly, Your Honours, if I may seek to augment the arguments

 3     that we made in paragraph 16 of the motion.  This is paragraph discussing

 4     the submissions as to why Your Honours should admit the statements, not

 5     withstanding that it refers to the acts and conduct of the accused.

 6             There have been quite a few cases in this Tribunal where

 7     statements referring to the acts and conducts of the accused have been

 8     received under 92 quater.  And I think I should, for the record, just

 9     cite two of them.  And that is the Prosecutor against Popovic et al., the

10     decision on the Prosecution motion for a motion of evidence pursuant to

11     Rule 92 quater of the 21st of April, 2008.  And also the Prosecutor

12     against Milutinovic et al., the decision on the Prosecution motion for

13     admission of evidence pursuant to Rule 92 quater of the 5th of March,

14     2007 in -- particularly in paragraph 9 in the Milutinovic decision and

15     paragraph 35, and thereafter in the Popovic decision.

16             Those are cases, Your Honours, among others where statements

17     going to the acts and conduct of the accused were admitted.  And these

18     decisions emphasise a point that it is just a factor, one factor, for the

19     Court to consider in exercising its discretion.  And it's a factor really

20     counselling cautious scrutiny of the evidence.  The circumstances in

21     which it was taken and the extent to which it is corroborated, in

22     particular.  But all of these cases, indeed the rule itself, contemplates

23     that these statements are admissible in appropriate circumstances, which

24     we submit is the situation in this case.

25             And thirdly and last, Your Honour, if I may perhaps redundantly,

Page 9300

 1     but I will nonetheless briefly just mention and remind the Court that the

 2     -- there is a next decision, another decision in the Milutinovic case in

 3     respect to 92 quater, that is cited in footnote 2 of the present motion,

 4     the instant motion before the Court.  And that is the decision of the

 5     16th of February, 2007, and I just refer to paragraph 9 of that decision

 6     where it's also discussed that even if there is lack of

 7     cross-examination, the statements can be admissible if they -- other

 8     circumstances -- all the circumstances considered together make it

 9     appropriate to do so.  So the absence of cross-examination does not

10     automatically preclude admission of the evidence.

11             In this case the statement -- there was no cross-examination in

12     the making of the statement, but there were opportunities by four or five

13     counsel to cross-examine in the Milutinovic case, and indeed in this case

14     the evidence of Mr. Trajkovic which substantially corroborates what K87

15     said was also open to cross-examination by counsel in this case.

16             That, Your Honours, for the present is all I have to add to the

17     written submissions.  May it please you.

18             JUDGE PARKER:  Thank you, Mr. Stamp.

19             Mr. Djurdjic.

20             MR. DJURDJIC: [Interpretation] Thank you, Your Honours.  First of

21     all, I would like to emphasise the chronology of events relating to the

22     testimony of witness K87.  Based on the Prosecution reports that we have

23     received, one can deduce that on the 1st and the 21st of August of this

24     year, the Prosecution was again in contact with the witness.  I don't

25     want to go any further back into the history because it's irrelevant.

Page 9301

 1             At that time the said witness informed the Prosecution about the

 2     fact that it is necessary -- I have to stop for a moment because

 3     Ms. O'Leary has just pointed out to me that I should ask you whether we

 4     should go into private session for them, although I'm not going to

 5     mention any names.  In my view it's not unnecessary, but I would be

 6     grateful for your guidance, Your Honours.

 7             JUDGE PARKER:  We have seen no reason for that, but if there's

 8     something that concerns you, please mention it because we don't want to

 9     create a problem by oversight.  But this was mentioned briefly by

10     Mr. Stamp, we couldn't see any reason.

11             MR. DJURDJIC: [Interpretation] Thank you.

12             On the 21st of August, the witness informed the OTP that he had a

13     medical check-up scheduled for the 29th of August.  I have here a

14     Prosecution notice to the effect that the Defence was advised on the 29th

15     that -- on the 29th of September that on the 5th October, the witness

16     will be available for hearing.  At that time they already knew that he

17     was going to see the doctor.  After that, the Prosecution got in touch

18     with the witness on the 30th of September, and on that day, the witness

19     informed them that he was due to undergo an operation on the 6th of

20     October, 2009.  At the Prosecution's request, the witness provided

21     medical records, i.e., referral for a day hospital, and then ergometry

22     department report, dated the 29th of September.

23             Based on these records and documents, the Prosecution

24     investigator concluded that there were no -- there was no evidence that

25     there was any surgery scheduled on the 6th of October, 2009, and that,

Page 9302

 1     therefore, a witness wouldn't be able to testify.  Let us just look at

 2     this order of events that we have been informed about by the Prosecution.

 3     It's evident that the Prosecution knew that on the 6th of October, 2009,

 4     the witness would not be available.  If he had a referral for day

 5     hospital dated the 1st of October, that means, that she will have to stay

 6     in a medical institution.  Later we are going to see that immediately

 7     after this information was revealed, the OTP contacted the medical

 8     institution where this witness was hospitalised.  I think that their best

 9     intention was to expedite the proceedings, but the OTP submitted

10     documents to this Trial Chamber, and bearing in mind everything that I

11     said earlier, failed to provide a report dated the 7th of October, 2009,

12     received from the physician who works at the hospital where the witness

13     was hospitalised.  In other words, these documents were not submitted to

14     the Trial Chamber before the Chamber decided to schedule the videolink

15     testimony for the 16th.  Although the OTP had some prior information, but

16     they deprived the Trial Chamber of that information.

17             What I want to say is, that the Prosecution disclosed all this

18     information to the Defence on the 13th of October.  Let us just look what

19     is said in these medical reports.  They only show that the witness is

20     only temporarily incapacitated, and it has been very specifically

21     described.  In one report it is said that he is not able to go to work

22     for three weeks, and in response to the request by the Prosecution

23     received on the 7th of October, it is said that the patient would be

24     re-examined one month later to see what his condition is.

25             I think that based on these indications, we have no proof that

Page 9303

 1     this witness is permanently unavailable.  In other words, that his

 2     health, both physical and mental, is such that he is permanently unable

 3     to testify.

 4             Your Honours, based on these medical reports we see that this

 5     witness is unable to work only for a period of 30 days following the

 6     surgery, which took place on the 5th of October.  So this 30-day period

 7     will expire in about five or six days.  Therefore, we believe that there

 8     is no evidence that his health condition is such that at this point due

 9     to psychological and physical ailments, this witness is incapable of

10     testifying.

11             And what the Prosecution has rightly and fairly pointed out, at

12     no point was it said in these reports that he was incapable of

13     testifying.  However, this incapability is limited to a 30-day period

14     during which period he should be spared any work in any other efforts.

15     After the expiry of this period, he will probably be able to work and

16     anyone who is capable of working, I think, is capable of testifying.  But

17     I think that that should be left to the medical expert to decide.

18     Therefore, in my view, this submission that there is permanent incapacity

19     on the part of the witness cannot be acceptable.

20             Since we have written records, we can see that there are

21     definitely all requirements met for a videolink testimony.  However,

22     these risks will be eliminated in a matter of course of three or four

23     weeks when the witness becomes healthy again, and I don't see any reason

24     for him not to testify.

25             I would like to address Rule 92 quater now.  Pursuant to this

Page 9304

 1     rule and concerning this other alternative which says that a person that

 2     is incapable of testifying viva voce due to bodily or mental condition,

 3     as far as this particular witness is concerned, will be able to testify

 4     in about seven or eight days' time.  What I would like to underline here

 5     is the following:  Mr. -- [overlapping speakers]... statement said that

 6     this witness was not cross-examined in Milutinovic.  That is true, there

 7     was no interest on the part of the Defence to cross-examine this witness.

 8     And I think this is a crucial point and that the Trial Chamber should

 9     particularly take this into account when delivering their ruling.

10             I would also like to point to another fact.  We are dealing here

11     with a witness who is to testify about the acts and conduct of the

12     accused for which he is charged in the indictment.  If the Prosecution

13     believes that this testimony is unnecessary, they could have relinquished

14     it.  But, however, it seems that they believe this testimony is going to

15     be relevant, particularly for the portions of the indictment containing

16     the charges against the accused.

17             Why cross-examination is required?  Precisely because, as

18     Mr. Stamp put it today, K87 had given statement and it is already part of

19     this proceedings and which has been admitted into evidence.  When this

20     witness testified in Milutinovic, during the briefing with the

21     Prosecution, he denied the statement he gave to this witness.  He

22     qualified that as an informal conversation that the content of this

23     conversation was misinterpreted and misrepresented, that he wished to

24     withdraw it.

25             The Defence was notified of this and, therefore, did not conduct

Page 9305

 1     cross-examination.  Now the Prosecution is arguing that the

 2     cross-examination is not necessary in this case either.  I think that

 3     this witness should and must be cross-examined.

 4             And one more thing, although the Prosecution --

 5             JUDGE PARKER:  Can you be a little more specific.  Are you saying

 6     that the witness K87 said that the statement given was a misinterpreted

 7     and misrepresented statement, or is it another witness speaking about the

 8     conversation with K87?

 9             MR. DJURDJIC: [Interpretation] I was probably not accurate

10     enough.  When K87 came to testify in Milutinovic, he had a proofing

11     session with the Prosecution beforehand.  The Prosecution informed the

12     Defence that the witness told the Prosecution that the statement that he

13     had -- that K84 gave a statement which was misinterpreted, that the

14     contents were wrong, and that this was actually not his statement.  K84

15     is also present in this trial and in this case.  Through K84, this

16     statement has been admitted into evidence in this case, the statement

17     claimed by K87 not to have been given by K84.  And it's, nevertheless,

18     became part of the evidence.

19             Since the Prosecutor in the Milutinovic case did not wish to

20     rectify this in examination-in-chief, and to put to the witness, and

21     there was no subsequent cross-examination, the matter was left as it was.

22     We only have a notification by the Prosecution in the Milutinovic case

23     that the witness denied having given a statement to our witness K84.  I

24     believe that this is proper grounds for cross-examining witness K87

25     because that is one of the crucial and fundamental reason for doing so.

Page 9306

 1             I don't know if I was clear enough on this matter.  Or maybe I

 2     should try to clarify it again.

 3             JUDGE PARKER:  We are slow this afternoon, Mr. Djurdjic, I'm

 4     sure.  It is not clear to me, are you saying that K87 has said that his

 5     evidence concerning your client of conversations between K87 and your

 6     client is not correct, has been misinterpreted or misrepresented?  Or are

 7     you talking about some other event that concerns witness K84?

 8             MR. DJURDJIC: [Interpretation] Your Honours, in our proceedings

 9     we heard witness K84, who was in charge of MUP group and took statements

10     from different witnesses, and those statements were as such tendered into

11     evidence through K84.  In the Milutinovic case, witness K87 came and told

12     the Prosecutor that statement taken by the Working Group, i.e., by

13     witness K84, that witness is not correct.  Am I clear, and have I managed

14     to explain now?

15             JUDGE PARKER:  Thank you very much, yes.

16             MR. DJURDJIC: [Interpretation] Thank you.  The point is that at

17     the hearing, the Prosecutor also failed to avail himself of the

18     possibility of telling the witness, excuse me, just as what the K84 has

19     drawn up does not correspond to the truth.  The Defence did not

20     cross-examine him, and it remained as such.  Now we have that statement

21     in the case file via witness K84.

22             May I also say this, I believe that by adoption of these

23     documents of the transcript and these statements according to Rule 92

24     quater without cross-examination, we would infringe upon the accused's

25     right to a Defence.  There is another thing which is untrue which we

Page 9307

 1     heard here, which is that protected witness K93 had said that Mr. Lukic

 2     had participated with the accused in the transportation of bodies.

 3     Mr. K93 had never said any such thing here, and this is something that

 4     you can verify for yourselves by reading our transcripts.

 5             Bearing in mind this state of facts, I'm referring to the health

 6     condition of the person referred to, this witness, namely when we -- seem

 7     that we waited for four or five weeks for Mr. Crosland, perhaps this

 8     Chamber could or should also wait for another ten days until we get a

 9     medical report to the effect whether this witness is indeed capable of

10     taking the stand or not.  I think it would be a minimal loss and

11     practically no damage done, no harm done relevant to the potential damage

12     that could be done to the accused and to his right to a Defence if we

13     were to rule today on the basis of -- to make a decision today on the

14     basis of Rule 92 quater.

15             I, therefore, move that the Chamber do not rule instantaneously,

16     but for us to wait for the relevant medical reports, and only then on

17     their basis bring just decision.  This is what I wanted to point out

18     because in the course of proceedings so far, I believe that the

19     proceedings have been conducted to the satisfaction of all parties in the

20     proceedings, and that at this juncture we are for the first time at a

21     juncture where potentially harmful or perhaps erroneous decision might be

22     made.

23             JUDGE PARKER:  So that we are clear, you are directly urging that

24     we should delay the progress of the trial to receive a further medical

25     report when it becomes available?

Page 9308

 1             MR. DJURDJIC: [Interpretation] Yes.  Your Honours, on the basis

 2     of the existent document, the Defence deems that it has not been

 3     ascertained that this witness is permanently incapacitated physically and

 4     mentally to take the witness-stand and that the relevant records and data

 5     will be available to the Trial Chamber only in a matter of seven days,

 6     after his scheduled check-up, and that it should only then rule.  The

 7     Defence does accept that if the medical record were to show that he is

 8     not capable of taking the witness-stand on medical grounds, then of

 9     course the Trial Chamber would have grounds to decide whether

10     requirements under 92 quater have been met or not.

11             JUDGE PARKER:  I notice that you have several times spoken of it

12     not being established that the witness is permanently unable to testify.

13     I don't see the word permanently in Rule 92 quater A.  Merely that he is

14     or she is unable to testify orally.  Now this of course is a separate

15     issue from whether it may be the case that the witness will be fit to

16     give evidence in a week or two's time, as you suggest.  But do you accept

17     that there's no specific requirement that the witness be permanently

18     unable to testify from the rule?

19             MR. DJURDJIC: [Interpretation] Your Honours, now this is within

20     the realm of interpretation.  I believe that in a ruling of yours

21     referring to a witness which had been accepted under 92 quater on these

22     grounds, mentally and physically unable, namely that you adopted the

23     position that that was a chronic condition with him, referring to his

24     health of course.  Now we are speaking about such a health problem in

25     view of the progress of medical equipment, that this is a routine

Page 9309

 1     operation, routine surgery.  It is just -- and recuperation will take

 2     only a short time.  It is just as if somebody would have not been able to

 3     come on account of a simple flu.  So that within a matter of days that

 4     person would have recovered.  It is true that this is -- the word

 5     permanent is not contained in the article.  But it does say that the

 6     bodily and mental or physical incapacitation is of a lengthier duration

 7     on account of which he will not be available to court.

 8             Now, had he been cross-examined in the Milutinovic case, it would

 9     be easier to take a decision.  Now we have two elements here.  A, there

10     was no cross-examination; and secondly, his questionable health

11     condition.  If he recuperates within a couple of days, and it is a short

12     period, I believe that we should wait because we waited for Crosland for

13     such a long time.  And I believe that it is of the essence in this

14     particular case.

15             And another thing, which I wish to underline, after the

16     cross-examination you have to assess the evidence presented, of course.

17     If this is such an important witness for the Prosecution, I believe that

18     it is only fair and correct for the Defence to cross-examine that

19     witness.  And this is yet another argument in favour of the statements

20     that have already been admitted, and we have, of course, the written

21     statement of the OTP that he had recanted his words, but that will not be

22     tendered as evidence unless we cross-examine this witness.

23             If I put myself in the shoes of the judge, despite the fact that

24     it is not expressly stated in this article that it should not be a

25     permanent condition, account should be taken of the nature of the

Page 9310

 1     incapacity, the physical and mental incapacity of the witness, which is

 2     in question for the Trial Chamber to rule.  Of course, something can be

 3     acute and short-lived, and other conditions can be permanent or chronic.

 4     Thank you.

 5             JUDGE PARKER:  You did mention a previous decision in which I had

 6     been a judge.  Do you have a reference to that?

 7             MR. DJURDJIC: [Microphone not activated]

 8             THE INTERPRETER:  Microphone, counsel, please.

 9             MR. DJURDJIC: [Interpretation] I did have one, Your Honours, but

10     now with the papers that I have in front of me, of which there are

11     many -- let me just try and find my bearings.  Well, IT-05-87/1-T of the

12     19th of August, 2009.  It is witness Zhuniqi, Ms. O'Leary just reminded

13     me.

14             JUDGE PARKER:  That is a decision in this case?

15             MR. DJURDJIC: [Interpretation] Yes.  Your decision, your Chamber,

16     your case, Your Honours.

17             JUDGE PARKER:  Is it reciting merely that in that case there was

18     a chronic condition, or is it your submission that it was said to be a

19     requirement that there be a chronic condition?

20             MR. DJURDJIC: [Interpretation] Yes.  I shall read it out for you.

21     You noted that in the documents it was stated the use of Zhuniqi had had

22     a brain stroke, was unable to speak, and was not emotionally stable

23     enough to be able to testify.  So on the basis of all those documents,

24     you concluded that he was unavailable.

25             "According to the opinion of the Chamber, these documents clearly

Page 9311

 1     attest to the physical and mental condition of the witness and to the

 2     fact that he is unable to testify."

 3             JUDGE PARKER:  Thank you.

 4             Mr. Stamp.

 5             MR. STAMP:  Firstly, if I might deal with the last thing.  The

 6     passage referred to in the decision with respect to Zhuniqi is at

 7     paragraph 8.  And if the issues as to whether or not this Chamber impose

 8     a requirement that the bodily or mental condition which prevents a

 9     witness from testifying is permanent, that is not so, and I think that is

10     clearly reflected in the language used by the Chamber in paragraph 8 of

11     its decision in respect of Zhuniqi.

12             If I may just reply to one or two other comments made.  May I

13     just accept responsibility for the failure of the Prosecution to timely

14     provide the medical report of the 7th of October.  We received it on the

15     8th of October in the afternoon.  That was the same day of the decision

16     with respect to the videolink.  As a matter of fact we received it after

17     that decision, shortly after.  It was our intention to file it the next

18     day with a correct translation of another medical document that had been

19     filed, and due to oversight it was not filed that day.  But when we

20     discovered that on the next occasion, and the Monday thereafter, I think

21     the next day was a Friday, the 9th, I think the Monday thereafter we

22     filed the report of the 7th of October.  So we were a couple days late in

23     filing that report.

24             However, the submission is that the reports, although they do not

25     show that he is permanently disabled, they show that -- well, they do

Page 9312

 1     satisfy the requirements of the rule that he is presently unable to

 2     testify, and there is no reasonable likelihood that he will be able to

 3     testify in the near future.  I think --

 4             JUDGE PARKER:  That becomes a very important issue, particularly

 5     in view of Mr. Djurdjic's submission.  Perhaps you could develop that.

 6             MR. STAMP:  One of the issues which Your Honours will have to

 7     consider is the history of the illness of Mr. -- of the witness having

 8     regard to the efforts of the Prosecution that the Prosecution has made in

 9     order to get him here.  I wish to assure the Court that we almost went

10     overboard in trying to ensure that we did everything possible to make him

11     available to the Court.

12             And I think without going too far in history, I think if you look

13     at the last report, and I think that is report which is referred to by my

14     friend, and it is a report that was appended to the affidavit of service

15     and was filed by the government of the Republic of Serbia on or around

16     the 29th of September this year.  It indicates that the further treatment

17     recommendations would be certain medication until February 2010.  And it

18     goes on to say that he should be excused from work, travel, and mental

19     and physical exertion until completion of treatment.  That is the last

20     medical documentation we have had.

21             There is, I should point out, out of fairness, an apparent

22     inconsistent report in that it has sick leave recommended for a minimum

23     of three weeks.  However, we have no information as to the condition of

24     the work that -- or the work arrangement could be made in respect of the

25     witness.  What we do have is a clear statement of the doctors that the

Page 9313

 1     treatment would continue until February 2010.  And he is to avoid

 2     stress-related activity until the end of that treatment.

 3             JUDGE PARKER:  I see it's sick leave, minimum three weeks.

 4             MR. STAMP:  Yes, Your Honour, that's correct.  The approach to

 5     this matter by the Prosecution has, as I indicated, been to push as far

 6     as possible to try to get him here, and I would submit that we have made

 7     a every bona fide effort in order to do so.

 8             As to the application that there should be a further delay in

 9     trying to get him, I'll leave that in the hands of the Court.  If the

10     Court so rules, we will again make every single effort to get him

11     available or make him available to testify.  However, I think the medical

12     report speaks for itself and having regard to the history since February

13     of trying to get him here on three or four occasions when he is summoned

14     or subpoenaed to attend, and the intervening medical condition which has

15     consistently prevented him from attending, I would ask you to consider

16     that in deciding whether or not --

17             JUDGE BAIRD:  But Mr. Stamp, do you agree with Mr. Djurdjic that

18     there would be a report, a medical report in four or five years time?

19             MR. STAMP:  I don't know of that.  I don't see where it is

20     reflected in the medical documentation.  Perhaps if you could give me a

21     citation, I could have a look at it.  I see in the last medical

22     documentation, not only that the treatment will continue until February

23     2010, but he is to repeat the echo stress test in four months, which

24     approximates February 2010.

25             So I just point out those aspects of the report to the Court.

Page 9314

 1     And I leave that part, that aspect in the hands of the Court.

 2             JUDGE PARKER:  Mr. Stamp, it becomes very difficult to accept

 3     your submission that we should have regard to the history of the failure

 4     of this witness to attend when it is now shown that he had surgery early

 5     this month to have a stent fitted.  Whatever his condition before that,

 6     he has undergone now significant surgery.  And so it seems, to me at

 7     least, that the issue is really what are the medical reports we have in

 8     respect of this witness who has undergone significant surgery this month

 9     and is now recovering from that and in due course will be assessed to see

10     whether or not that surgery has been successful.  And that brings me to

11     the reports we have, the most significant one which was the report given

12     a few days before the surgery, indicating what is likely to follow, that

13     is the report dated the 29th of September, following the ergometrical

14     testing.  And it indicated there should be no work, travel, or

15     significant mental or physical efforts until medical treatment is over.

16     And then when the anticipated surgery was undertaken just a few days

17     later, when he was discharged that day, there is a recommendation for

18     further treatment until February 2010 and to repeat the significant

19     ergometrical examination, the echo-examination in four months time, and a

20     sick leave, minimum three weeks, with no indication that the patient was

21     to undergo further specific examination or treatment at any earlier time

22     than the treatment that was planned until February and the

23     echo-examination in four months, which would be four months - late

24     February or 6th of February, would that be four months from the operation

25     on the 6th of October?

Page 9315

 1             MR. STAMP:  Indeed, Your Honour.

 2             JUDGE PARKER:  So it seems that there was a treatment plan until

 3     February, and there was then to be further stress testing.  And it's our

 4     evaluation of that report, it seems to me, and the report of the 29th of

 5     September, rather than our assessment of what may or may not have been

 6     the justification for this witness's failures to attend on earlier

 7     occasions.  Because while we have no specific medical details about his

 8     condition on those earlier occasions, we do know that his condition

 9     eventually led to surgery at the beginning of this month.

10             Is there any further observation you'd like to make about that?

11             MR. STAMP:  Yes, I accept that, really, the current medical

12     reports are those which are most applicable to the issue, and I have --

13     I've referred to them.  And I -- while I don't oppose the application

14     that we could wait, I see no reason on the medical documentation to

15     support what counsel has said or his submissions.  So I just point that

16     out to the Court.

17             And also as just indicated by the Court, the medical

18     documentation seems to indicate that his treatment will last until

19     February of next year.

20             JUDGE PARKER:  Thank you.  Sorry, were you about to put something

21     else?

22             MR. STAMP:  And just one additional area of the submissions of

23     counsel, just for clarification.  He refers to a statement that the

24     witness gave to K84, the investigator.  That statement is already in

25     evidence and that statement is not the subject of this application.  The

Page 9316

 1     subject of this application, the statement that he gave to the OTP, and

 2     also the transcript of his testimony in respect of that statement reflect

 3     at the penultimate page of the transcript, which is 65 ter 05114, that:

 4             "It is satisfied that his statement accurately reflects the best

 5     of his knowledge and recollection, the truth about the events that are

 6     described therein."

 7             This was his sworn testimony about the statement, the relevant

 8     statement last year.  Thank you very much, Your Honours.

 9             JUDGE PARKER:  Thank you, Mr. Stamp.

10                           [Trial Chamber confers]

11             JUDGE PARKER:  I see you showing some anxiety to speak again,

12     Mr. Djurdjic.  Please.

13             MR. DJURDJIC: [Interpretation] Your Honours, first of all, I

14     would like to say this, as far as I managed to understand Mr. Stamp, we

15     have no information relating to the health condition and whether the

16     witness was capable of working after his operation, and what was

17     routinely done with this kind of patient.  Secondly, he is going to be

18     treated for the rest of his life, but does that mean that a his physical

19     and mental condition is such that he is unable to testify?  You rightly

20     put that he is due to undergo check-up in four month's time, but it

21     doesn't say that in four month's time he will neither be able to testify,

22     nor to work.  And we can see that even after three weeks of sick leave,

23     he can return to work.  Otherwise, they would have said that he should be

24     on sick leave for four months and then come to -- for another check-up.

25             In one document it says three weeks, and in another document it

Page 9317

 1     is stated that the check-up is due within 30 days.  When the OTP

 2     submitted their request to you, they stated that there was no indication

 3     of his being unable to testify.  Therefore, I think that we really have a

 4     very short time for us to be able to obtain proper information.

 5                           [Trial Chamber and legal officer confer]

 6                           [Trial Chamber confers]

 7             JUDGE PARKER:  Mr. Djurdjic, there's a question about your

 8     submissions.  You seem to indicate an expectation that there would be a

 9     further medical report -- medical examination and report in the next few

10     days or so.  What is the basis for that?  Why do you say that?

11             MR. DJURDJIC: [Interpretation] Your Honours, knowing how the

12     health care operates in Serbia health care system, the recommended sick

13     leave for the witness is minimum three years.  Therefore, his

14     attending --

15             JUDGE PARKER:  Three weeks.  The translation said years.

16             THE INTERPRETER:  Interpreter's correction:  Three weeks.

17     Apologies.

18             MR. DJURDJIC: [Interpretation] Yes, I said three weeks.  So after

19     that he is going to go to this medical institution, undergo examination,

20     and then a recommendation should be written whether he is able to go back

21     to work or not.  It is up to the doctor to decide whether his sick leave

22     should be prolonged or not.  Within this period of time, we never saw

23     that the witness did not work when he was operated in January/February

24     until October.  There was no indication that he had been excused from

25     work throughout this period.  As far as I know, this kind of surgery is

Page 9318

 1     such that makes people capable of going back to work very soon

 2     thereafter.  So if he is able to work, I don't see any reason for him not

 3     to be able to testify.

 4             JUDGE PARKER:  You are really relying on your medical knowledge

 5     and your understanding of the Serbian medical system, is that it,

 6     Mr. Djurdjic?

 7             MR. DJURDJIC: [Interpretation] But that's how things are.  I just

 8     presented the facts to you, how things work.  And it is up to you, I

 9     apologise, I don't want to interfere with how you are going to rule, but

10     my opinion is that if one is capable of performing work, then one is

11     capable of testifying.

12                           [Trial Chamber confers]

13             JUDGE PARKER:  Mr. Stamp, could I clarify, your motion would seek

14     the admission of the statement and the transcript; is that correct?

15             MR. STAMP:  Yes, Your Honours.

16             JUDGE PARKER:  Thank you.

17             This is a motion by the Prosecution for the Chamber to receive

18     the evidence of witness K87 by -- in the form of a written statement

19     which the witness has made at an earlier time, and the evidence given by

20     this witness in an earlier trial.

21             The circumstances are that the witness, having failed, for

22     reasons which he expressed to do with his medical condition, to attend on

23     two earlier occasions during the Prosecution case.  The situation arose

24     which in the end persuaded this Chamber on the 7th of October this year

25     to issue a subpoena requiring the witness to attend to give evidence by

Page 9319

 1     way of videolink from Belgrade.

 2             The information then before the Chamber indicated that his health

 3     condition certainly suggested that it would be un-wise for him to travel

 4     to The Hague, and on the information available, it was expected that his

 5     evidence might be obtained by videolink.

 6             The medical information then available to the Chamber has been

 7     supplemented since then, in particular by a report which, although

 8     reaching the Prosecutor's Office on the 8th or 9th, was not filed until

 9     the 16th of October this year.  That report indicated that after

10     extensive testing at the end of last month, the accused indeed had a

11     significant health problem -- the witness had a significant health

12     problem, for which surgery to insert a stent was proposed and that this

13     had been held -- this surgery had been performed on the 6th of October

14     this year.

15             We now have a report of his condition on discharge from the day

16     surgery when that stent was inserted on the 6th of October, as well as

17     his ergometric examination report, dated the 29th of September.  Having

18     received those reports, the Chamber saw that it was not appropriate to

19     pursue the videolink proposal, and it retracted the order for the witness

20     to give evidence by videolink from Belgrade.  And that has led to the

21     present motion.

22             I won't review the submissions which we have had today from both

23     counsel for the Prosecution and counsel for the accused.  They are set

24     out in the transcript.  In particular, counsel for the accused submitted

25     that the medical documentation presently available did not indicate that

Page 9320

 1     the accused was either permanently unable to give evidence, or as that

 2     submission was developed, as I understand it, did not indicate that there

 3     was a sufficient degree of delay or permanency in the unavailability or

 4     inability of the witness to give evidence.  So that it was submitted that

 5     Rule 92 quater had not been shown to be applicable.

 6             It was further stressed that the accused would lose the ability

 7     to cross-examine this witness, a condition of particular significance

 8     because the evidence of the witness dealt with, in some respects at

 9     least, acts and conduct of the accused relating to the charge.  And also

10     because some matters related, as I understand the submissions, to the

11     credibility and reliability of the evidence of the witness affecting or

12     relating to the evidence of two other witnesses, particularly K84 and, I

13     think, K93, that it would not be open to the accused if this submission

14     -- if this motion were granted to explore those issues and would,

15     therefore, adversely affect his ability to present his Defence

16     adequately.

17             The relevant rule is Rule 92 quater.  It requires that relevantly

18     by reason of bodily condition, a person is unable to testify orally, and

19     that the Chamber must be satisfied that the witness is unavailable to

20     testify orally, and that the proposed statement is reliable.  And the

21     rule specifically draws attention to the situation where the proposed

22     evidence deals with the acts and conduct of an accused which expressly is

23     noted to be a factor against the admission of that evidence or part of

24     it.  Sorry, accurately, it may be a factor against the admission of that

25     evidence or part of it.  And, of course, the provisions of Rule 89

Page 9321

 1     relating to the general admissibility of evidence also apply.

 2             A number of factors have been identified in the jurisprudence,

 3     particularly in decisions such as the Milutinovic decision of the 16th of

 4     February, 2007, paragraph 7; and also the Prosecutor against Gotovina, a

 5     decision of the 16th of June, 2008, paragraph 6; and the Popovic

 6     decision, the one of the 21st of April, 2008, paragraph 31, as to the

 7     indicia which are relevant to the assessment of the reliability of the

 8     evidence to be admitted pursuant to 92 quater.

 9             The fact that the evidence relates to the acts and conduct of the

10     accused gives rise for a reason for the Chamber to give very cautious

11     scrutiny to the evidence, and to its reliability and relevance, and, of

12     course, to the significance of cross-examination in weighing whether it

13     is in the interests of justice for the evidence to be admitted.

14             I turn now to the first and primary question, that is, whether

15     the provision of the rule is one that is -- allows in this present case

16     the admission of this evidence.  As I've indicated, the words of the rule

17     speak of the need for, by virtue of some bodily condition, the witness is

18     unable to testify orally.

19             We would have little hesitation in accepting Mr. Djurdjic's

20     submission if it were the case that there was clearly some imminent

21     further medical review in the next few days, is the way Mr. Djurdjic saw

22     it.  But we find no support for that factual position in the medical

23     certificates that we have.  The certificate of the 29th of September says

24     that, "There should be no work, travel, or significant mental or physical

25     efforts until medical treatment is over."  We accept, as is clearly

Page 9322

 1     implicit, that the strain of giving evidence and being examined and

 2     cross-examined, particularly in proceedings of this significance, is

 3     something within the scope of that recommendation.  That is, the mental

 4     and physical effort which is not to be undertaken on the certificate

 5     until medical treatment is over.

 6             We then see in the discharge certificate of the 6th of October,

 7     2009, that there is specifically a recommendation for further treatment,

 8     essentially in the form of medication, and it is noted until February

 9     2010, which is some four months from the surgery, and it is then

10     specifically stated that the echo examination, which is the intensive

11     ergometric testing, should be undertaken again in four months.

12             It is true, as Mr. Djurdjic has stressed, that the certificate

13     also says that there should be a minimum of three weeks sick leave.  But

14     there is in the certificate no indication that the witness may well

15     return to work in that time, or that he should be further examined or

16     treated in that time.  While Mr. Djurdjic sought to assist us with his

17     knowledge of the system of medical treatment in Serbia, we really find

18     ourselves returning to this certificate.

19             It seems from this certificate, and the Chamber accepts it to be

20     the fact, that at the moment because of the medical condition of the

21     witness, he is unable to give evidence because to do so would expose him

22     to the prospect of significant mental and physical effort.  And at this

23     time shortly after his surgery, that is not to be undertaken.

24             We do accept the sense of Mr. Djurdjic's submission that the rule

25     requires something more than just some temporary -- indisposition of some

Page 9323

 1     temporary inability of the witness to give evidence, but this report

 2     indicates to the Chamber that it is not likely to be until February when

 3     there will be further significant testing, whether it can be the case

 4     that the witness will then be fit enough for the purpose of giving

 5     evidence.

 6             For these reasons in the Chamber's view Rule 92 quater can

 7     properly be applied to the present circumstances.  The evidence itself

 8     is, in the Chamber's assessment, of its nature apparently sufficiently

 9     reliable for the purposes of the rule.  There was a statement taken in

10     October 2004.  It was taken with the assistance of a duly qualified

11     interpreter approved by the Registry of this Tribunal.  The statement was

12     read back to the witness in Serbian in June of 2005.  It was signed by

13     him with an accompanying acknowledgement that the statement is true to

14     the best of his recollection.

15             This statement was affirmed by the witness in the trial of

16     Milutinovic subject to some minor changes which are specifically noted in

17     the transcript of that trial.  The statement, of course, was not itself a

18     sworn statement, but it was confirmed on oath in the Milutinovic trial

19     subject to those minor changes.  It was not the subject of

20     cross-examination in Milutinovic.  Part of the reason for that may well

21     have been, as Mr. Djurdjic has submitted, but the fact is there was the

22     opportunity to cross-examine by the accused in that trial, one or two of

23     which had some similarity of interest at least with the accused, although

24     no one of them was directly the subject of the evidence as is the case in

25     respect of this accused.

Page 9324

 1             But those circumstances which I've outlined suggest to the

 2     Chamber that the evidence is apparently reliable.  The statement was

 3     given in circumstances which tend to support its reliability, and that

 4     the witness was careful in what he said.  And the witness has dealt with

 5     the subject matter again in the course of evidence in the Milutinovic

 6     trial.  In those circumstances, the Chamber is satisfied about the

 7     criteria of reliability.

 8             There's no doubt that the evidence is potentially relevant in

 9     this case.  It deals with an aspect in particular of the evidence, that

10     is whether the accused had some involvement in the disposition of the

11     bodies of displaced persons, some at least of whom would appear to be the

12     subject of the indictment.

13             It is, therefore, in the view of the Chamber the case that the

14     evidence is sufficiently relevant and probative to be admitted under

15     Rule 92 quater and Rule 89C, and that -- we turn now to the question of a

16     fair trial under Rule 89D.  We are well conscious of the issues raised by

17     Mr. Djurdjic.  The importance of cross-examination of a witness such as

18     this and of the other factors which he submitted indicate that there is

19     significance to the ability of the accused to cross-examine in this case.

20             We are conscious of that and weigh that, but also weigh it

21     against the availability of this rule and the satisfaction in other

22     respects of the rule.  It seems to the Chamber that this is a case where

23     there is an appropriate and proper solution.  If it should prove to be

24     the case that this witness is not able to give evidence during the course

25     of this trial, then the evidence with its potential and apparent

Page 9325

 1     reliability, with it's potential relevance and probative value, is

 2     evidence that ought properly to be taken into consideration by the

 3     Chamber.

 4             In doing so, of course, the Chamber would be very conscious of

 5     the limited value that it ought to place on the evidence because it is

 6     not being tested by cross-examination, and the careful assessment of it

 7     that would be necessary when taken into account evidence such as those of

 8     K84 and K93.

 9             Nevertheless, it is evidence which, for the reasons indicated and

10     having regard to the scope and object of the rule, is evidence that the

11     Chamber ought to receive and to assess.

12             On the other hand, if it is the case that at some stage during

13     the evidence of this trial the witness is again able to give evidence, it

14     would seem to the Chamber to be very important for the purposes of the

15     Defence to enable the Defence to cross-examine this witness.  And if that

16     were done, a number of the limitations that would potentially affect this

17     witness could be put aside.

18             It is the view, therefore, of the Chamber that, first, in the

19     circumstances the motion should be granted to allow the admission of this

20     evidence at this stage.  It is, however, the view of the Chamber, that it

21     would be very much in the interests of justice should the witness become

22     able to give evidence during the trial that the witness should be called,

23     should be made available for cross-examination, and should be

24     cross-examined.  And in the view of the Chamber, that would be of some

25     considerable potential significance in assisting the Defence in the

Page 9326

 1     conduct of its case.

 2                           [Trial Chamber confers]

 3             JUDGE PARKER:  For these reasons, the Chamber would grant the

 4     motion and would order the admission into evidence of the Rule 65 ter

 5     02756, the witness statement of K87, dated the 25th and 26th of October,

 6     2004, to be admitted under seal.  And also the redacted version of that

 7     statement, which is Rule 65 ter 02847.  And also the transcript of the

 8     testimony of that witness in the Milutinovic et al. trial, that is

 9     Rule 65 ter 05114, with one further addition, we notice that the present

10     transcript does not include the beginning of the evidence in which the

11     oath was taken by K87.  We would, therefore, propose and order that the

12     Prosecution upload that transcript page 11813 of the Milutinovic trial

13     which contains the oath by K87, and that that be added to the transcript

14     which is tendered.  Also, the Rule 65 ter 02757 pseudonym sheet for K87

15     to be admitted under seal.

16             We would further order that the Prosecution should monitor and

17     seek and obtained regular medical reports, at least on a monthly basis of

18     the progress of the health of the witness, and that these should be

19     provided to the Defence and to the Chamber.  And that should those

20     medical reports indicate at any stage during the evidence in this trial

21     that the witness is again able to give evidence, that the Prosecution in

22     consultation with the Chamber and the Defence should arrange a date upon

23     which that evidence of that witness would be continued by videolink if

24     that is the suggestion or indication recommended by the medical

25     certificates, or by personal attendance of the witness in The Hague.  And

Page 9327

 1     that the witness should be called and made available to the Defence for

 2     cross-examination.

 3                           [Trial Chamber confers]

 4             JUDGE PARKER:  I hope the proposals regarding monitoring the

 5     medical condition of the witness are clear enough, Mr. Stamp.  It is the

 6     Chamber's wish to minimise the difficulty the Defence faces by virtue of

 7     this -- the order for the admission of this evidence.  And if it becomes

 8     a realistic prospect that that witness can be cross-examined, either by

 9     videolink or by personal attendance here, it is the Chamber's objective

10     that that opportunity should be afforded to the Defence.  If that doesn't

11     occur and can't occur for the reasons I've indicated, the evidence that

12     has been received will have to be subject to very careful scrutiny by the

13     Chamber in assessing what weight, if any, it might attach to it.

14             Mr. Djurdjic, I see you signalling.

15             MR. DJURDJIC: [Interpretation] Your Honours, just a question.

16     I'm quite clear on everything that you have said.  Does the Defence have

17     the right to request that the additional information that we have which

18     the Prosecution submitted in the Milutinovic case be also admitted into

19     the file?  Do we have that right?  Even if there is no cross-examination,

20     can we propose, can we move that such additional information be also

21     part, an integral part of the file, of the material?

22                           [Trial Chamber confers]

23             JUDGE PARKER:  So that it's clear that you can proceed, we would

24     grant you leave to file a motion for the admission into evidence of that

25     material.  That material should be appended to the motion so that the

Page 9328

 1     Chamber can see it and assess and determine whether it has relevance to

 2     the trial.

 3             We have reached a point where we must break, I believe, because

 4     of the tapes.  The Chamber would like briefly to explore with counsel the

 5     future timetable so that we would, therefore, propose a break of

 6     20 minutes, which I think is the minimum that will be feasible, and we

 7     can resume.  We will then ask questions such as whether we are to

 8     anticipate a Rule 98 bis or not, because that will affect the

 9     time-tabling that we would see for the future conduct of the trial.  We

10     won't ask for an answer now, if you want to discuss it further in the

11     break.  And we also assume, Mr. Stamp, that there are no further

12     witnesses or evidence that you propose to offer.  There are one or two

13     motions yet to be concluded, completed in decision, and that will happen

14     in the next day or so.

15             MR. STAMP:  Yes, Your Honour.  I will probably address it after

16     the break, but substantially correct.

17             JUDGE PARKER:  We resume at 6.20.

18                           --- Recess taken at 5.59 p.m.

19                           --- On resuming at 6.19 p.m.

20             JUDGE PARKER:  Mr. Stamp, is there any outstanding matter in the

21     Prosecution case apart from the one motion concerning the video?

22             MR. STAMP:  Not presently before the Court, but there are two

23     other filings the Prosecution intends to place before the Court, but

24     those filings should not affect any schedule the Court seeks to set.  One

25     is the filing of what we have called a proof of death chart, which is

Page 9329

 1     really a chart that doesn't seek to tender new evidence, but it links all

 2     of the evidence in respect to each individual named deceased in the

 3     schedules in the indictment.  We had indicated sometime ago that we would

 4     offer this chart to the Court to assist the Court in finding the various

 5     bits and pieces of evidence.  There are references in various lists,

 6     forensic reports, autopsy reports from various sources.  So that chart

 7     would merely be for clarification and to assist the Court in sorting out

 8     the evidence in respect to the scheduled deceased -- or the scheduled

 9     victims.

10             The Prosecution also proposes to file very shortly a bar table

11     motion in respect to a few documents that we think at this stage of the

12     case the Court may consider receiving in evidence.  However, we do not

13     believe that motion should affect any schedule the Court may want to --

14             JUDGE PARKER:  Can we suggest that any motion filed after today

15     include a prayer for leave to re-open the Prosecution case to have

16     admitted whatever it is?

17             MR. STAMP:  Very well, Your Honours.

18             JUDGE PARKER:  Yes.

19             MR. STAMP:  So subject to those three matters, there are no other

20     evidentiary matters, all the witnesses that we intend to call have been

21     called and their evidence is before the Court.

22             JUDGE PARKER:  So subject to the one pending motion and two

23     potential filings, you close your case.

24             MR. STAMP:  That is the case for the Prosecution.

25             JUDGE PARKER:  Thank you very much.

Page 9330

 1             MR. STAMP:  On an unrelated score, I should mention in respect to

 2     your previous order before you -- we took the adjournment, that we upload

 3     the first page of 65 ter number --

 4             JUDGE PARKER:  Yes.

 5             MR. STAMP:  It has been done.

 6             JUDGE PARKER:  It has been done.  That's very speedy response by

 7     the Prosecution.  I won't say unusually so, but thank you.

 8             MR. STAMP:  Thank you, Your Honours.

 9             JUDGE PARKER:  Mr. Djurdjic, the Prosecution case has now

10     concluded.  Are you in a position, first, to indicate whether there will

11     be any motion under Rule 98 bis?

12             MR. DJURDJIC: [Interpretation] Your Honours, I shall be sincere

13     when I tell you that I would like you to give us a bit more time than you

14     had planned for the preparation of our Defence, and I should not like to

15     be given that through the application of Rule 98 bis because the Defence

16     is not going to avail itself of Rule 98 bis at all.  Thank you.

17             JUDGE PARKER:  Well, thank you for that.  I'm not really

18     surprised at your position.  It's a very sound and practical one.  But

19     that, of course, brings me to the question then of what time do you see

20     yourself needing?  The steps now required, of course, are, firstly, that

21     you file under Rule 65 ter G a list of witnesses, the estimated times -

22     et cetera - anticipated for those witnesses, and a list of exhibits.  And

23     then following that comes time for the commencement of the Defence

24     evidence.  But firstly, for the filing of witnesses, times and exhibits?

25             MR. DJURDJIC: [Interpretation] Your Honours, I shall continue to

Page 9331

 1     be quite candid and sincere.  During the summer recess, the three weeks

 2     or so that we had, all Serbs are on vacation and very few things could

 3     get done.  I'm not going to belabour the point and how much difficulty we

 4     had.  But I should like it seek your assistance in this matter.  Would it

 5     be possible for us as regards 65 ter to have two weeks or perhaps three

 6     weeks as the time given us within which to submit our list, and then in

 7     that fourth week, around the 30th of November, that is, we would

 8     appreciate it very much if we could start our case then.

 9             I am not quite sure about the actual rule, whether it is we need

10     to submit the 65 ter submission to the OTP and the Court a week or two

11     weeks in advance, but Ms. O'Leary has just now told me that the 20th of

12     November would be the optimum time for the Defence case to begin.  And on

13     the 30th of November -- no, for that to be done on the 20th of November,

14     and for our case to start on the 30th of November.

15             JUDGE PARKER:  One of the points of that is to -- of your filing

16     under 65 ter G is to enable the Prosecution to prepare to meet the

17     Defence case, and you would be, by what has just been proposed, putting

18     the Prosecution under a great deal of pressure.  Monday the 16th of

19     November might be a preferable date.

20             MR. DJURDJIC: [Interpretation] Thank you, you are reading my

21     mind, Your Honours.  This is exactly what I was about to propose, because

22     Ms. O'Leary has also recommended that and assisted me.

23                           [Trial Chamber confers]

24             JUDGE PARKER:  Mr. Stamp, is there any submission you would want

25     to make about?

Page 9332

 1             MR. STAMP:  No, Your Honours.  As far as the Prosecution is

 2     concerned, as long as there's sufficient time, at least two, perhaps

 3     three weeks between the filing of the Defence 65 ter and the beginning of

 4     the presentation of the evidence, we leave everything in the hands of the

 5     Court.

 6             JUDGE PARKER:  That's a very brave thing to do, to leave it to

 7     us, Mr. Stamp.  We do notice that Friday the 27th is a United Nations

 8     holiday, so even opening during that week would not be of great

 9     advantage.  What about then in response to your frankness, if we say,

10     Mr. Djurdjic, that all the 65 ter filings should occur by Monday the 16th

11     of November, and that your opening and your evidence should commence on

12     Monday, the 30th of November?

13             MR. DJURDJIC: [Interpretation] That would be also our wish, that

14     you would indeed accommodate if you were to bring such a decision.

15             JUDGE PARKER:  That is our decision, Mr. Djurdjic.  Now, we are

16     doing that to try and ensure that you are in a position to present an

17     orderly and efficient Defence case.  We do bear in mind that by

18     mid-December we will be having a break and given various exigencies that

19     will probably be a break of four rather than three weeks, so you will

20     have further time then to get your case in order.

21             The Chamber would also point out, and I do this out of caution

22     because it's sometimes misunderstood, if it is decided that you will --

23     that the accused, your client, will give evidence, the Chamber would

24     indicate that it would expect that his evidence be the first evidence led

25     for the Defence.  There is no absolute rule about that, but if it is done

Page 9333

 1     that way, the Chamber is in the position to give the greatest weight to

 2     his evidence.  If as occasionally it is suggested the accused should give

 3     evidence last, that evidence suffers the disadvantage that it well may be

 4     influenced by what other Defence witnesses have said.  So the Chamber is

 5     in a position to see and assist your client's evidence more clearly and

 6     in better light if his evidence is the first that is led.

 7             We indicate that, A, for the purposes of ensuring that you

 8     understand our position and the advantages of him coming first.  And the

 9     second reason is that that could be quite material to how you order your

10     witnesses in the time before and after the break over the

11     Christmas/New Year period.

12             If you commence evidence on Monday, the 30th, there will be

13     another Plenary on Thursday the 10th of December, so that will be a four

14     day week, but otherwise, you can expect to go through until, say, Tuesday

15     the 15th or Wednesday the 16th of December in planning your witnesses.

16             And when we resume, you can expect that it will be in the week

17     commencing the 18th of January.  So that will assist you in the planning

18     of witnesses.

19             Do you have, at the moment, any estimation of the possible length

20     of your case?

21             MR. DJURDJIC: [Interpretation] Don't hold me to my word, but if

22     we start on the 30th -- don't take my word for it, but if we start on the

23     30th, it will be -- by the end of March, and most probably even before

24     that, that we shall have finished our case.  And I should like to thank

25     you, but there is one thing I'm not quite sure about.  I believe that the

Page 9334

 1     break starts on the 18th of December in fact.

 2             JUDGE PARKER:  We are breaking a couple of days earlier just out

 3     of consideration for you, Mr. Djurdjic, of course.  Friday the 18th, yes,

 4     but because of travel commitments, it will be Tuesday the 15th or

 5     Wednesday the 16th that we break.

 6             MR. DJURDJIC: [Interpretation] Oh, I see.  It was mistranslated

 7     because I was told that we should start presenting our evidence from the

 8     15th.  It is until the 15th.

 9             JUDGE PARKER:  Until the 15th.  You start on the 30th of

10     November.

11             MR. DJURDJIC: [Interpretation] Thank you.  Thank you.

12             JUDGE PARKER:  And then you look in January to recommencing your

13     witnesses and evidence in the week commencing the 18th of January.

14             Anything else, Mr. Stamp?

15             MR. STAMP:  [Microphone not activated] No, Your Honours, that is

16     all from the Prosecution.

17             JUDGE PARKER:  Nothing else, Mr. Djurdjic?  In that event we now

18     adjourn.  It will effectively then be four weeks without sitting.  As the

19     Chamber has indicated, it has an ongoing anxiety for this case to finish

20     as quickly as possible, but it recognizes that at this point preparation

21     and ordering of Defence witnesses is as important as it was at the

22     beginning of the Prosecution case, and there is a need for notice to be

23     given to the Prosecution to enable them to prepare to meet the Defence

24     case.  For that reason, this break of four weeks is in the interests of a

25     fair trial and in the interests of a trial finishing as quickly as

Page 9335

 1     possible.  So we wish you an industrious month.  We now adjourn.

 2                           --- Whereupon the hearing adjourned at 6.38 p.m.,

 3                           to be reconvened on Monday, the 30th day of

 4                           November, 2009.