1 Wednesday, 18
2 [Status Conference]
3 [Open session]
4 --- Upon commencing at 3.53 p.m.
5 [The accused entered court]
6 JUDGE RODRIGUES: [Interpretation] Good afternoon, everyone. I
7 think that our teams are the same as this morning. I should like to ask
8 the registrar to call the case, please.
9 THE REGISTRAR: Yes, Your Honour. The case number, IT-98-29-PT,
10 the Prosecutor versus Stanislav Galic.
11 JUDGE RODRIGUES: [Interpretation] For the Prosecution, the
12 appearances, please.
13 MR. BLAXILL: Good afternoon, Your Honours. This afternoon the
14 Office of the Prosecutor is represented by myself, Michael Blaxill; and I
15 am joined by my colleague, Mr. Stefan Waespi; and Ms. Annink-Javier is our
16 case manager, who is also at the table.
17 Your Honours, may I just add one thing, that we were today to be
18 joined by Mr. Mark Ierace, our new senior trial attorney, who will have
19 the overall conduct of this case. He has been in post since Monday of
20 this week, and tragically this afternoon, at lunchtime, he received news
21 of the death of a relative back in Australia through an accident, and with
22 that sudden and tragic news he had to leave the Tribunal immediately to
23 make his way back to Australia for family reasons. So on his behalf and
24 on behalf of the Office of the Prosecutor, I offer his regrets that,
25 through tragic circumstances, you are still denied meeting the senior
1 trial attorney who will be conducting this case before you.
2 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Blaxill. We
3 really regret the circumstances through which we have been denied the
4 presence of your lead counsel. I hope that things will improve shortly.
5 For the Defence, please.
6 MR. KOSTIC: Good afternoon, Your Honours. Nikola Kostic,
7 appearing with General Galic.
8 JUDGE RODRIGUES: [Interpretation] Very well. Thank you. In
9 application of a Scheduling Order of the 4th of October, 2000, the Status
10 Conference today will be divided in two parts. There will be a hearing on
11 the motion for the Trial Chamber to travel to Sarajevo, in particular the
12 progress that has been made in the negotiations between the parties as
13 regards a draft protocol of the envisaged visit. That is the reason why
14 I, as a Pre-Trial Judge, am joined by my two colleagues today, Judge Riad
15 and Judge Wald.
16 After that, there will be a Status Conference which is convened in
17 application of Rule 65 bis of the Rules of Procedure and Evidence, for the
18 purpose of discussing the progress that has been made in view of the
19 preparations for the trial.
20 We will begin with the discussion on the motion for the Trial
21 Chamber to travel to Sarajevo so that my colleagues can be excused after
22 that. Thereafter, I will indicate the agenda for the Status Conference,
23 and perhaps between two parts of the hearing today we can have a short
25 As you know, the motion was submitted by the Prosecution and bears
1 the date of the 14th of July, 2000. According to the motion, it is
2 suggested that the Trial Chamber travels to Sarajevo and to its immediate
3 surroundings. The envisaged date for the visit would be sometime between
4 the filing of the Pre-Trial briefs and the opening of the trial itself.
5 Considering the fact that the Trial Chamber was inclined to carry
6 out such a visit, and in view of the fact that, according to the
7 Prosecution, the Defence has not expressed any opposition to the idea, the
8 Scheduling Order of the 4th of the October, 2000 suggested that the
9 parties submit a draft protocol for the Trial Chamber site visit to
10 Sarajevo. The set protocol should include certain details, such as the
11 exact locations of the visit, the guarantees regarding the rights of the
12 Defence, and also a suggestion as regards the modes of communication
13 between the parties and the Judges.
14 The protocol should be completed as soon as possible so that
15 necessary arrangements can be made, unless otherwise decided by the
16 Chamber. So I should like to hear the parties about the progress that has
17 been made in that respect and I should like to begin with the
19 Mr. Blaxill, you have the floor.
20 MR. BLAXILL: Thank you. I'm obliged to you, Mr. President. We
21 have, in fact, prepared an initial outline draft of a form of protocol, a
22 copy of that was dispatched by post on the 6th of October of this year to
23 my learned friend, Mr. Kostic, but I understand from him today he says he
24 hasn't received it. It is, however, a short document and contains nine
25 very short paragraphs. So I think he's probably had time for a quick and
1 probably a fairly thorough perusal at this point.
2 Your Honours, I would like to submit a copy of that for your own
3 perusal just to help follow any discussion, but I have to say at this
4 immediate point in time, as we had perhaps hoped maybe to have heard
5 Mr. Kostic in-between times, we have not taken the step of having this
6 translated into French. Had it been something we'd formally wished to
7 submit to you, of course, we would have tried to comply with that as I
8 know it is something that the Chamber rightly desires.
9 But in essence, I think, Your Honours, our view is that certainly
10 the Prosecution feel an on-site inspection of the environs of Sarajevo
11 would assist the Tribunal greatly. It would help Your Honours to
12 understand particularly the unique topography, as we see it, of Sarajevo
13 and its surrounding country. It's our submission, Your Honours, which may
14 be I'm, to use an English expression, teaching granny to suck eggs, and I
15 don't mean to, but of course, we believe you can exercise such a function
16 under Rule 4 of the Rules of Procedure and Evidence with the blessing of
17 the President of the Tribunal.
18 Since the exercise is viewed by the Prosecution and no doubt by
19 Your Honours as a judicial function and I think has to be exercised as a
20 judicial function, it is appropriate, we feel, that the -- there should be
21 some set guidelines and/or indeed rules for particularly communications
22 between the parties, or more particularly, the parties and yourselves.
23 Indeed, the fourth paragraph of our draft protocol does suggest
24 that, prior to any visit to the site, there should be a written itinerary
25 suggested, and I think that's something where, in my anticipation, we
1 would have various places that the Prosecution would wish you to see and
2 various places that the Defence would wish you to see.
3 I know your fellow judges in the Kupreskic trial had anticipated
4 such a visit in their case and I know, for security reasons, that didn't
5 occur. But indeed I think, quite effectively, they invited all parties to
6 submit the particular areas of interest and then they were able to work
7 out an itinerary for that.
8 I think that also assists very much in that if one has to use any
9 form of local guide in the situation, it can avoid any influence being
10 brought to bear through a third party because Your Honours would have a
11 firm and clear view of where you wish to go and what you propose to see.
12 I think with those written requests being put in, it should be feasible,
13 perhaps by negotiation between Prosecution and Defence, to even suggest
14 some of the logistics for an itinerary.
15 In this case, you do have a city that is within a defined valley
16 and there are basically a couple of east-west roads and one north-south
17 road which form the kind of skeleton of the place. It is not difficult to
18 get around, and I think an itinerary can easily be achieved for you.
19 With regard to communications, again the suggestions which we have
20 put together essentially are that, obviously, the parties may have a need
21 to draw something to Your Honours' attention but, of course, it has to be
22 essentially to do with the location and the topography of the place not,
23 of course, to try and indulge in arguments on merits of the case before
24 you in such a circumstance. And also that possibly one way to ensure that
25 the propriety of communications with Your Honours is observed is that
1 through a court deputy who is with you, or an appointed officer, we would
2 first, as it were, filter the communication through them and they could
3 then see to it that the appropriate communications reached Your Honours.
4 The other factor would be the presence of the parties during any
5 communication. We feel it is an appropriate safeguard that clearly, if
6 one party wishes to make a representation to Your Honours, then the other
7 party should be present. Now, on that basis, I think probably within a
8 few days we could put together and we've had -- I have personally had some
9 thoughts on the idea, to put together some practical suggestions for an
10 itinerary, and with the presence of Mr. Kostic here now, I'm sure we could
11 hammer out something quite quickly that would help all parties make some
12 logistics decisions and be able to go forward with preparations certainly
13 sufficient for Your Honours to consider an order and for the President to
14 consider his authority.
15 There may be other -- obviously, other logistical considerations,
16 namely the cooperation of the entities of the area and any concerns by
17 SFOR as to how these things should proceed. But on that basis, we
18 certainly, from the Prosecution point of view, are very much minded to ask
19 you to consider favourably so doing, and I think it is a feasible
20 undertaking in this particular case.
21 The final thing, Your Honours, is that really the manner of
22 recording. Two options have been considered in the past. Whether you
23 have periods of audio-visual recording with a video camera on site so that
24 when you are looking at specific locations, it is actually viewed, the
25 parties are present, and it is recorded both audio and visual or, and in
1 conjunction with, written minutes with the locations visited and any
2 communications with Your Honours. Maybe the video thing is more
3 comprehensive and a better option for recording the visit than simply
4 written minutes.
5 But those are the suggestions we've committed to paper so far,
6 so -- unless there is a question you have for me at this stage,
7 Mr. President, or Your Honours, perhaps you might care to hear the views
8 of Mr. Kostic.
9 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Blaxill. Thank you
10 very much for your suggestions. We will perhaps, my colleagues and I,
11 have questions later on but I should like to hear, first of all, the
12 reaction of the other party. We know already that Mr. Kostic did not
13 perhaps have enough time to think about this proposal but, however, we
14 would like to hear your initial response, albeit a temporary one. You
15 don't have to tell us anything as a definitive answer, but let us hear
16 your answer on the proposal.
17 Mr. Kostic, you have the floor.
18 MR. KOSTIC: When I initially received the motion and it was filed
19 at the time when Mr. Terrier was the senior counsel, we actually had a
20 conversation about the motion before it was actually filed. I told him at
21 that time, and I'm repeating that statement to the Trial Chamber now, that
22 anything that would assist the Trial Chamber in understanding various
23 aspects of the litigation that's in front of you, the case that you're
24 going to be dealing with, I think is something we ought to try.
25 I told Mr. Terrier that this idea of a Court or a Tribunal or a
1 Chamber visiting a certain scene is not necessarily unusual where I
2 practice. We call this a jury view if it's a jury case, and I think
3 Mr. Blaxill has done that in the past. Obviously, some of the cases in
4 the national jurisdiction are a bit more narrow and not as complicated as
5 what is involved here, but that is perhaps why I feel that the motion is
6 appropriate and I think that, if the Trial Chamber is to visit the area,
7 that it would help the Trial Chamber to follow the evidence in this case.
8 When I talk about evidence, I'm thinking not only in terms of the
9 fact that you may be receiving into evidence maps, photographs,
10 videotapes, perhaps, as is mentioned in the motion, some kind of a relief
11 map and so on, but I still think when you are able to visit a location, it
12 is very, very helpful. So in principle, I felt that it was appropriate
13 and that I could support that particular notion.
14 I will get back to the fact that I do have some other reservations
15 and matters that I want to deal with in regard to what I think the Trial
16 Chamber ought to see. But before we go into that, I think one thing that
17 I agree with Mr. Blaxill is the fact that this is a very obviously serious
18 and somber procedure, this litigation, and I would hope, and I know -- I
19 certainly know the Chamber will work very hard not to have that visit be
20 anything but a judicial function. To be honest with you, my concern would
21 be that it would turn into some kind of a media situation and so on, and I
22 would hope that we could avoid -- I'm sure we can avoid that. But I just
23 wanted to voice that at this time.
24 I also agree with Mr. Blaxill that since we're going to be
25 visiting the territory of two entities, Republika Srpska and the
1 Federation, that at some point fairly soon there ought to be some
2 coordination with the appropriate authorities in those two entities to
3 assist us. When I'm saying "assist us," I'm speaking now as an officer of
4 the Court here; in other words, assist the Trial Chamber in making sure
5 that everything is done as well as it can, that security is guaranteed,
6 and again -- and some of the other reservations I had. So I think that
7 Mr. Blaxill is correct that we do need to consult with those two
8 entities. I'm not about to suggest to Your Honours or to the President of
9 the Tribunal how to do that. I think you've done that for a number of
10 years and I'm sure that that can be accomplished. So that, I think, is
11 something that I think you need to know.
12 I have looked -- and I have to be very honest with you, I've only
13 taken a very quick skim of the draft protocol which is in your possession
14 now, and I think that we can discuss that also perhaps, and I may have
15 some comments.
16 One matter which I do want to share with you initially which I'm
17 concerned about, and this sort of ties into Rule 4, of course, but it also
18 ties into Article 21 of the Statute of the Tribunal. That's Article
19 21(4)(d), which talks about the rights of the accused. And as you know,
20 that particular paragraph deals with the fact that the accused has the
21 right to be tried in his presence, as I'm quoting from that particular
22 Statute, which raises the issue, and that is: How do we characterise the
23 Trial Chamber's visit? Is it a part of the litigation, a part of the
24 judicial process? Is it a part of the trial of General Galic? Because if
25 that is how we characterise it, then I think, under Article 21(4)(d), he
1 would need to be present, and I think that is an issue which has to be
2 dealt with by the Chamber. I know that, of course, it raises maybe
3 additional security issues and other aspects, but I think you should be
4 mindful of that and we can, I'm sure, discuss that.
5 And then finally, as I have looked at this protocol, draft
6 protocol, Mr. Blaxill has worked out what seems like an outline where
7 essentially the parties would provide written suggestions of an itinerary,
8 the places they want to visit, what they want the Chamber to see. I think
9 what's going to happen, practically speaking, is this: I think that
10 Mr. Blaxill and I and the rest of the Prosecution team will probably agree
11 on a number of sites that you ought to see. And I think we can agree on
12 that and I think that will not cause us to have to contest issues.
13 There may, though -- there may be locations and the width of your
14 visit in terms of geographic areas and specific sites where we may -- the
15 Defence may say we absolutely need to see these, we would urge the Chamber
16 to do so, whereas Mr. Blaxill may feel that it isn't necessary to see
17 them, for whatever reason he might have, of course. And of course, on the
18 other hand, we may have some feelings about a list that he would provide.
19 So I think we're going to be dealing with three categories of locations,
20 some we can agree on and then the other two areas that we can't.
21 Mr. Blaxill and I spoke just before we went into this session, and
22 I know that probably as early as tomorrow we'll be able to sit down and at
23 least find an area that we can agree on, and of course work on the other
24 areas. But that, Your Honours, is sort of generally something that I
25 would like you to consider, and obviously if there's a need to submit any
1 kind of writing, even a memorandum in regard to the issue that I presented
2 to you, I would be happy to do that. Thank you.
3 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Kostic. I'm
4 going to give the floor to Mr. Blaxill for his response, but anyway, I
5 should also like to inject these views. The Chamber would be inclined to
6 agree with this visit if this visit will indeed save us time, witnesses,
7 the duration of the testimony of witnesses, and so on. You must
8 understand that the Chamber is not interested in a tourist visit. It is
9 indeed a working visit. But we have to see what will be the consequences
10 in terms of the expediency of the trial, bearing always in mind the
11 question of fairness. This is, I would say, in my personal opinion -- of
12 course, my colleagues will have an opportunity to express their views -- I
13 think that we truly need to view this visit in the context of shortening
14 trial time. If we come to that conclusion, then we probably will be
15 inclined; if not, we will not be inclined. Because, as you know, the key
16 issue at the Tribunal now is the question of Judges' time, so we have to
17 use that time as effectively and efficiently as possible. Having made
18 that remark, I give the floor to Mr. Blaxill to respond to the
19 observations made by Mr. Kostic.
20 You have the floor, Mr. Blaxill, please.
21 MR. BLAXILL: I think in one area I would agree with my learned
22 friend when he says there's probably going to be three sorts of categories
23 of things. One is where the Prosecution suggest you should see points A,
24 B, and C, and he would agree; we might say D, E, and F, and he will not
25 agree; and others will be the other way around. However, I think that in
1 essence, if we are setting this up in the sense that this is a geographic
2 exercise for orientation, which I think would save Your Honours' time -- I
3 think it saves time when locations will be described to you -- it can
4 just, even if it foreshortens a number of witnesses by a few minutes, over
5 a long trial that can end up with hours and even days of saved time.
6 I think, therefore, again, if we do submit this kind of prior
7 itinerary that can be scrutinised by Your Honours first, I think you will
8 be able to identify instances where if you feel we are going into an
9 effort to influence a view of evidence, then I think it would become
10 apparent. And I think if we simply are stating locations within the town
11 and that nobody is trying to influence you as to what we say about those
12 locations, then I think we serve the purpose, and I think that is a very
13 feasible and, in fact, an easy task.
14 The other issue that my learned friend has raised, and this is the
15 question of the Article 21 rights of the accused, well, to that extent, as
16 to the existence and propriety of these rights, clearly I would not argue
17 for one split second. It is probably one of the most ancient rights in
18 most places of the world that a person accused may face his accuser. What
19 I'm saying is that the city and the hills around it are not the accuser;
20 they are simply the locus in quo. We have a location. It is geography.
21 And no one seeks to try and convict General Galic on the strength of
23 So I think that, again, with the appropriate safeguards we may
24 have suggested, if they appeal to Your Honours, I think we have a
25 situation where the Article 21 rights of the accused are well protected
1 and well served by the presence of his counsel and by, let us say, if
2 nothing else, the restriction upon the Prosecution even to make any kind
3 of representation to you in the absence of legal representation on the
4 part of Mr. Kostic. So on that basis, I do not feel that, in my personal
5 view, that we risk jeopardising or compromising the letter or the spirit
6 of Article 21 and the -- indeed, the enshrined right of an accused to be
7 tried with all elements in his presence. It is a restricted visit for
8 geographical awareness and I know we would consider it no more than that.
9 So those would be my representations on those two issues, Your Honours.
10 JUDGE RIAD: Mr. Blaxill, I have just a small question. You
11 really raised two important points: saving time and acquiring geographical
12 awareness. Now, these two cannot be compensated by videotapes showing us
13 the area, that we save more time and give us the geographical awareness?
14 I mean, suppose I want to have geographical awareness of Australia. Do I
15 need to go there or can I have it on the maps and in videos or films?
16 MR. BLAXILL: I don't attempt in any way any sort of flippant
17 humour in what I'm saying, Your Honours, but I've seen films of Australia
18 and I have been there, and there is no substitute for the experience. I
19 think when it comes to perceptions of distance, of light, of height, and
20 of your perception of surroundings, I do not believe that the camera
21 cannot lie, and I do not believe that the camera is a substitute for the
22 human experience. I say I have no legal precedent to offer you to support
23 that remark, but I honestly believe, and it is my personal experience of
24 Sarajevo -- it is probably the personal experience of Mr. Kostic -- that
25 when you go to a place, you can experience far more than any amount of
1 videotape or -- because you have 360-degree vision, just like this, which
2 you still can't do with a camera, not fully. So I would suggest, for the
3 sensory perceptions, there is still a distinct advantage in being on the
5 JUDGE RIAD: Thank you very much.
6 JUDGE WALD: I was going to ask Mr. Kostic, who referred to his
7 experience in his own jurisdiction with site visits, and I've had a little
8 bit of that. In my experience, the accused didn't go on them. Is your
9 experience different?
10 MR. KOSTIC: Your Honour, in -- I can honestly tell you that I
11 think on every jury view that I've gone on, the accused or the defendant
12 was there. I know that, on occasion, the judge in question was a little
13 concerned, especially if you're dealing with a very serious charge and so
14 on. For me, though, even though I would have gone to this site previously
15 by myself, as Mr. Blaxill and I have gone to Sarajevo more or less by
16 ourselves or in -- so on, sometimes it is helpful to have your client with
17 you in those circumstances which I'm sort of indicating. The other is I
18 am concerned when I read the statute and --
19 JUDGE WALD: That's why I asked you. As you are well aware, in
20 the United States, we have a similar guarantee of the public trial and the
21 right of an accused to appear before. We can certainly research the
22 jurisprudence to find out if there's been any, but I know I've been in at
23 least one where the defendant was not there.
24 MR. KOSTIC: Your Honour, one of the things that does concern me
25 is that I don't think it's been done before, to my knowledge, within this
1 particular jurisdiction. So we are sort of embarking on something new and
2 if you or the rest of the Chamber would like me to look into that and you
3 think you might be helped by providing you some -- obviously, it's going
4 to come from other jurisdictions -- I would do that, of course.
5 JUDGE RODRIGUES: [Interpretation] I think we have already heard
6 the views of the parties. For the moment, I think that we have said that
7 we must continue between -- with the conversations between counsel so as
8 to perhaps reach a memorandum or maybe these three categories of sites to
9 be visited; a category on which the parties will agree, another category
10 that the Prosecution would like to visit but not the Defence, and vice
11 versa. That is to say that we need to have a document, signed by both
12 parties, specifying the points on which they agree, the points that one
13 side would support and is opposed by the other. I think that is what we
14 need to do.
15 With respect to this question of jurisprudence, I think that the
16 Tribunal is going to adopt its own jurisprudence. That is to say, I think
17 it will be the first time for a Chamber to travel to make an on-site visit
18 to the sites mentioned in the indictment. It is true what Mr. Blaxill
19 said that there was another attempt which, unfortunately, did not take
20 place for reasons of security. I think that we need to consult the
21 security service to see whether we can travel and under what conditions.
22 In any event, I would like to express my personal opinion. I
23 think that it should be done on condition that we are saving time.
24 Otherwise, we will be spending a lot of hearing time showing maps,
25 photographs, videos of the area and the geography. If that would save
1 time, then we should do it.
2 As I have said, everything that we can do outside the courtroom,
3 outside the hearings in the courtroom should be done in order to achieve
4 the balance which has to be always maintained, and that is to have a
5 speedy but also a fair trial. So we have to keep a balance between the
6 two. Therefore, bearing this in mind, the Chamber will make a decision in
7 due time.
8 Perhaps we should now give practical form to this suggestion. I
9 don't know whether for the parties 7 days would be sufficient or whether
10 you need more time to draw up such a memo. I don't know whether that has
11 anything to do with the availability of Mr. Kostic for discussions on this
12 matter. When I said 7 days, I can also say 15 days, but the idea is to go
13 forward as quickly as possible.
14 Mr. Blaxill, what is your opinion regarding the setting in motion
15 of this suggestion of this procedure?
16 MR. BLAXILL: Quite simply, yes, Your Honour. We can, I think,
17 put together what we would propose within a seven-day period and it's --
18 we're at Mr. Kostic's disposal because we were anticipating, in respect of
19 what has been happening around us, we were anticipating probably that from
20 now until the 26th would be precisely the time to do all this various
21 preparation, subject to what Mr. Kostic says.
22 Your Honour, if I could digress from your question for a moment, I
23 do have in my possession a copy of, and I will pass it to Mr. Kostic, of
24 the order that was in fact made on the 13th of October, 1998, signed by
25 His Honour Judge Cassese which, in fact, sets out a blueprint for the
1 proposed visit that they were going to make in the Kupreskic case and I
2 will happily share that with my learned friend. It might assist us.
3 Clearly, it does seem there is already a precedent set, there is a
4 precedent set in this Tribunal for non-attendance of the accused. And as
5 Your Honour quite rightly pointed out, it was for security reasons that
6 that did not go ahead.
7 JUDGE RODRIGUES: [Interpretation] So Mr. Blaxill spoke about the
8 position of the Prosecution, but we should hear the position of the
9 Defence as well.
10 What is the position of the Defence, Mr. Kostic, please?
11 MR. KOSTIC: Your Honour, what I've said initially, I think, is
12 the statement that I will generally adopt again. I do want to bring up a
13 couple of matters. I've had another look at the draft protocol. I was
14 sort of looking with one eye in and one eye at the draft protocol. I do
15 like the idea that Mr. Blaxill is very sensitive about the fact as to how
16 the communications are dealt with between the Prosecution, the Defence,
17 and the Chamber. I think that's very, very appropriate, and I think
18 that's something that we can easily adopt. Of course, I would be
19 concerned, and I'm sure that the Trial Chamber would be very much not only
20 careful, but would certainly resist any communication from any other
21 sources while there. I don't even have that problem. But I think that's
22 something that we should be aware of because of the nature of the case.
23 I do think that we can continue meeting and, as I said, I will be
24 here and I will continue meeting with Mr. Blaxill. I would like to take a
25 look at Judge Cassese's memorandum or order, whatever it is. The only
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 thing that I'm concerned about is that I would like some guidance from the
2 Chamber in this sense: If we are to prepare lists, you can imagine that
3 they can become somewhat lengthy, and also there is some difficulty in
4 making sure that we are clear on what we would like you to see. And that
5 may not be quite as easy to do as quickly because I think there's quite a
6 number of locations that, between Mr. Blaxill and us, we would like you to
7 see. And for that reason, that may be somewhat troublesome in a sense to
8 do it very quickly.
9 My suggestion would be, of course, to move ahead and to do as much
10 as we can, but to still allow us some additional time to make sure we
11 haven't missed anything in terms of what we would like you to see, or if
12 we are not satisfied with the description of what we would like you to
13 see, that we do that.
14 As you know, places have changed names. Some places are not the
15 same today as they were four or five, six, seven years ago. So there are
16 those situations that I would hope the Trial Chamber can have some -- how
17 should I say -- should give us a little leeway so we can deal with that.
18 JUDGE RODRIGUES: [Interpretation] I think that what we can
19 conclude in the sense of guidelines for the parties, that we will have a
20 Status Conference on the 26th of October. The parties may engage in
21 exchanges between themselves to try and produce some sort of a document,
22 and even to have doubts, if one can put it that way, so that we can
23 discuss these matters at the Status Conference, that is, what is the
24 common ground and what are the doubts that you have and perhaps we too
25 will have doubts because, after all, we too would like to participate of
1 the definition of the itinerary and the whole project. So I think that is
2 the best way to proceed on the 26th of October. We'll have, as an agenda
3 item, this to see which of the points the parties agree, which they
4 disagree on, and which doubts that they may have.
5 So now we can go on to the Status Conference proper, but before
6 that, I should like to confer with my colleagues.
7 [Trial Chamber confers]
8 MR. BLAXILL: Your Honours, may I interrupt you for just one
9 moment? Some other practical point has just crossed my mind and that is
10 that we are in mid-October, and it has been, I think, the experience of
11 anyone with regular visits to Sarajevo and the like that the weather will
12 very much dictate sometimes what one can do, even with getting in and
13 getting out. So, of course, if you are thinking globally of timing and
14 the start of the trial and various other things, I think it is a
15 legitimate consideration as to what season you feel that you would best be
16 able to travel to get the best benefit from it.
17 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Blaxill. It is always
18 true that we prefer the spring, after all, but it is an aspect of
19 organisation that we need to take into account because that depends on the
20 nature of the questions that we need to observe.
21 As you know, the majority of actions were conducted in the summer
22 because it was not possible to engage in them during the winter. So you
23 see, this is a point that certainly needs to be taken into consideration.
24 We shall now have a very short break of six or seven minutes, and
25 we'll be resuming after that for our Status Conference.
1 --- Break taken at 4.37 p.m.
2 --- On resuming at 4.48 p.m.
3 JUDGE RODRIGUES: [Interpretation] We will now move to our Status
4 Conference. As far as the Status Conference is concerned, we have at
5 least 11 points to consider. I'm going to inform you of the agenda so
6 that we can bear in mind all of them.
7 First of all, we will consider the disclosure of evidence by the
8 Defence and the Prosecution; second, we will see what the situation is as
9 regards the application of Rule 65 ter, that is, the Pre-Trial brief of
10 the Prosecutor; number 3, judicial notice; number 4, reciprocal
11 disclosure. We will elaborate on that later on. Special defence, any
12 special defence offered by the Defence; preliminary statements; Rule 84.
13 We will also have to discuss whether the accused intends to testify or
14 offer a statement pursuant to Rule 84 bis; the issue of expert witnesses;
15 and also the participation of the Defence in the Status Conference;
16 Article 73; timetable; and any other issues that the parties wish to
17 consider and which have not been indicated as part of the agenda.
18 As it is usual, we will begin with number 1, with the first item
19 of the agenda, that is, the disclosure of evidence by the Prosecution to
20 the Defence. There are actually two issues involved here, and I'm going
21 to mention the first one.
22 As regards evidence which is contained in Rule 66(A)(ii) of the
23 Rules of Procedure and Evidence, has a solution been found to expedite the
24 proceedings, which was discussed during our last conference? And the
25 second issue is the following: During the last Status Conference, the
1 Prosecution recognised that Rule 68 of the Rules of Procedure and Evidence
2 imposes a permanent obligation to disclose on them. I should like to know
3 whether there has been a disclosure of evidence which is covered by this
4 particular Rule so far. So that would be the first item on our agenda,
5 and I should like to hear the Prosecution, Mr. Blaxill, on this issue.
6 MR. BLAXILL: Your Honour, with regard to firstly Rule 66(A)(ii),
7 I'm going to say that I just have a minor misunderstanding, I think, as to
8 quite what you refer to when you say about "expediting." I'm wondering
9 whether you mean whether we have yet agreed anything, whereby we would --
10 JUDGE RODRIGUES: [Interpretation] I spoke about the packages that
11 got lost in the process of communication or disclosure of evidence. We
12 discussed it last time.
13 MR. BLAXILL: Yes. We were duly supplied, I believe, safely
14 received by my learned friend. So that is no longer a problem, as I
15 understand, Your Honour. Yes, that's taken care of.
16 With regard to Rule 66(A)(ii), we have only, in fact, a modest
17 amount, and I would say a modest amount, of evidence currently being dealt
18 with vis-à-vis the lifting of a Rule 70 restriction. Once that is dealt
19 with, and I believe it can be dealt with certainly well before the
20 November conference date, of course it will be served promptly upon its
22 As regards any other additional evidence that may be coming in, or
23 perhaps evidence that may substitute for other evidence, there is about to
24 be a -- I was going to say substantial disclosure, but in cases of this
25 size it is not that substantial. The fact is that, over the last four
1 weeks, our investigative team has been recontacting the civilian witnesses
2 in Sarajevo, and basically a number of these people were interviewed back
3 in 1995. So, clearly, it was appropriate to go back to them.
4 Now, as a result of that, we have found perhaps one or two
5 witnesses who are now not so well, not so able to travel. We have had
6 reported now two incidents of deceased witnesses. My learned friend will
7 be informed, when we meet, about those situations. And we have also
8 undertaken the task of taking statements prepared in the language of the
9 witnesses which reflect the statements they previously gave to the
10 Tribunal. The purpose of that has been to get them to adopt their
11 evidence, make any corrections, and perhaps overcome a problem that has
12 been encountered in other trials, where a witness in court has heard what
13 is stated in a statement taken in English and then later disagrees. It's
14 caused some frictions and problems, so we're endeavouring to overcome them.
15 Now, as a result, my learned friend will be getting further
16 disclosure in the next couple of weeks. They are being entered into
17 evidence now. They will then be drawn and served on him, in compliance
18 with Rule 66(A)(ii). All of this stuff will essentially be a repeat of
19 what he has had, but it is now brought up to date and we know which
20 witnesses are still ready, willing, and able to come and testify. There
21 may be some instances where we will, in due course, as a practical matter,
22 Your Honours, be asking you to consider possibly the question of
23 deposition or affidavit evidence for specific people, for specific
24 reasons, but in that respect we are, therefore, I trust, up to date on our
25 obligations under 66(A)(ii).
1 With regard to Rule 68, at this time we are undertaking searches
2 with that very specifically in mind. I understand, if my understanding of
3 the Rules is correct, that our duty is to disclose, not necessarily to
4 sort of put up a flag that it's Rule 68 that we're doing, but where this
5 is sufficiently clear, I think it is perhaps appropriate, to assist my
6 friend, that we would do so, and I think we will do so. In appropriate
7 cases, we will try and batch this together and let him have it under that
8 guise. But we are conscious that this is an obligation that runs, and it
9 will simply, if we come across such evidence, it will be served as it is
11 Now, in that regard, and taking account of it as a disclosure
12 issue, on the last occasion I informed Your Honour that a large search was
13 being undertaken. The last count, I'm told, was something like 2.5
14 million pages of material being scanned by a large team, and elements of
15 that get referred to the relevant trial teams. The amounts received thus
16 far are not that daunting, I'm pleased to say, but nevertheless we do have
17 this ongoing project; and in fact, due to a number of quite considerable
18 computer and logistic problems, the flow of information only really
19 started in earnest last week. On that basis, we will have an ongoing
20 disclosure of relevant material and Rule 68 material, which I think will
21 go until this task is completed. It's beyond our control, in that sense,
22 but obviously we're mindful of our duty and we will stand by it, and we
23 will consistently serve particularly Rule 68 material as soon as it's in
24 our hands.
25 So the process, I would like to say in encapsulation, is ongoing.
1 There is a new batch of Rule 66 material to go into my learned friend's
2 hands in the very near future. And in essence, as regards evidential
3 disclosure, that's the case. And yes, the missing boxes were delivered.
4 JUDGE RODRIGUES: [Interpretation] Thank you very much,
5 Mr. Blaxill.
6 Mr. Kostic, do you wish to respond in respect to these two items?
7 Have you indeed received the last boxes and have you received all of the
8 documents, or are you still waiting for some documents to be disclosed, in
9 particular, those covered by Rule 68?
10 MR. KOSTIC: Yes, I did receive the items that were missing, and I
11 think that's not an issue any longer. I have received some other
12 documents which are documents that are of subsequent interviews. I should
13 tell you also that Mr. Blaxill and I have met in September on a number of
14 occasions while I was here, and pretty much what he has reported to you
15 just now he and I discussed at that time, so I am appreciative of the fact
16 that he is making the effort to supply the Defence with the Rule 66
17 material, as well as the 68. But the only thing that I understand, and of
18 course I accept his representations, and that has to do with this rather
19 large -- what would you call them? -- 2.5 million pieces of paper, for
20 lack of a better term, that they're working on that and that I'm sure that
21 that is going to be done at some point. In fact, I think I've met some of
22 the people working on that. So I think that there's an effort being made,
23 and I'm sure that he will be supplying me with the materials as they
25 And then, finally, the Rule 70 materials he told me about. I have
1 a general idea what is being done with that. I'm satisfied that that's
2 being done according to the procedures, and I'm expecting to receive
3 that. So I guess on that issue, Mr. Blaxill and I do not have any issues
4 at this time to report.
5 JUDGE RODRIGUES: [Interpretation] So we have covered these two
6 items. However, before we finish this discussion, I have to tell you that
7 the Chamber is trying to stabilise, so to speak, the case before it
8 actually opens. We understand and we know that the Prosecutor is still
9 continuing with her investigations and that new disclosure is always
10 possible. However, in terms of organisation and the functioning of the
11 Tribunal, including the fairness and the expedience of the trial, one has
12 to note that if the Prosecutor has issued an indictment, it means that
13 she's ready for a trial. Having said that, the Chamber will be strict in
14 application of its authority. I don't wish to have any surprises later
15 on, because in some other cases we have had the situation where the
16 Prosecutor changed his list of witnesses at the very end of his case,
17 which caused us a significant amount of problems. What we are trying to
18 do during this Pre-Trial stage is to stabilise the case as much as it is
19 possible. So once the trial opens, it opens for a case that has already
20 been prepared.
21 I have to therefore remind you, and I think that this is very
22 important in terms of objectives that are enshrined in the statute, in
23 terms of the accused, the accused has the right to a speedy and fair
24 trial. So if we keep changing witnesses' statements, the Defence is not
25 in a situation to prepare themselves and cannot properly fulfil and
1 discharge its obligations because we have to review the position and start
2 from the beginning once again.
3 So what we need to do during this pre-trial stage is to have a
4 certain commitment by the parties because it is not fair for the accused
5 to have a number of changes occurring all the time during the trial
6 stage. But we will have another Status Conference. We will have another
7 chance to get prepared. There are always exceptional circumstances, I
8 grant you that, but the Prosecutor has to get organised before the
9 beginning of the trial.
10 So we will be discussing everything. We will prepare the case
11 during this pre-trial stage, and then the case will really open. The
12 trial will really begin. I don't know if there is anything you wish to
13 say or comment in respect of this strategy that I have exposed to you,
14 both in terms of theoretical and practical aspects.
15 MR. BLAXILL: I think with the cases that come before the Chambers
16 of this Tribunal, Your Honour, quite frankly, stability and a sound,
17 prepared case is something which is desperately desired by all. I speak
18 as now an advocate in now two prior cases that such is a situation that
19 nobody likes any kind of disorder to set in one, it's a tough enough task
20 to work on something from start to finish that is well prepared.
21 I think one of the problems that has arisen probably over the last
22 12 months is not exclusive to the position of this particular case is that
23 we have seen, and to an extent, some of that is public news, that the
24 regimes have changed, the climate has changed, and in that respect also,
25 that means that the results of investigations that are ongoing, not
1 necessarily we're trying to investigate this case, but the reality is that
2 we are coming into possession of document collections and other things
3 which raise two very specific points.
4 On the basis of a fair trial, I would commend to Your Honour that
5 clearly one has to be fair to two things. I always assume the Prosecution
6 tries to represent the truth. So if we find something that adds to the
7 truth, we have a duty to try and put it before you. Secondly, of course,
8 there's Rule 68, and if somebody in the course of investigations shall
9 access an archive of, say, some military force or some governmental part
10 of an entity that's now opened up to us for some reason, then, of course,
11 we would have that ongoing duty as well.
12 So I think I heard a colleague once say that trials in this
13 institution have a certain sort of dynamic life to them just by the nature
14 of the background to the whole thing and where the cases come from. But I
15 think within the parameters of those problems, some of those things can
16 actually help the Tribunal greatly, and the Chambers can learn a
17 fundamental truth that may not otherwise be so explicit to them. So,
18 obviously, we are mindful that we want to be straight, we want to have
19 everything in order, and get on with our job. And I think, speaking as an
20 advocate, I would rather be in court than in an office so I would rather
21 the trial obviously to start and we can get on with our business.
22 But I do caution, if I may be allowed to caution you, Your Honour,
23 that these are the other dynamics in the world, and we would be fooled in
24 our duty if we said, "Well, we have got this package, we will proceed and
25 ignore these other things." But naturally, we will try to keep any
1 inconvenience to the system and to the Chamber to a minimum, but I think
2 that is a fair position, from our point of view, anyway.
3 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Blaxill, we will
4 accept your caution, but you also have to accept ours. The Chamber will
5 try and do its best in terms of discussing the issues and preparing the
6 issues that will come up during the trial phase, and once the trial
7 begins, the most important role will be, of course, the role of the
8 witnesses. But we both take note of these reciprocal cautions that have
9 just been expressed.
10 Let us move to the second item of the agenda, that is the
11 provisions of Rule 65 ter. In terms of order of the 4th of October, the
12 Prosecution has until the 7th of December to fulfil its obligations
13 stipulated in the said Rule and the Defence has to meet its obligations
14 pursuant to Rule 65 ter (F) by the 14th of December, 2000 at the latest.
15 That is the pre-trial brief. I should like to know if there has been any
16 progress made regarding the adjudicated facts in application of paragraph
17 (ii) and (iii) of Rule 65 ter (E).
18 During the last Status Conference, the parties informed us that
19 very little progress had been made in that respect, and I do hope that
20 such a situation has improved in the meantime, despite certain problems
21 that we had with the timetable. The Chamber should therefore like to hear
22 the parties on this particular issue, and I'm going to give the floor
23 first to the Prosecution and then to the Defence.
24 Mr. Blaxill, has any progress been made regarding stipulations and
25 agreements between the parties?
1 MR. BLAXILL: I would like to think that we are on the eve of,
2 Your Honour, because I have already agreed that I shall be meeting my
3 learned friend tomorrow 0930 and I have been keeping basically all days
4 between now and the 26th of October clear for whatever demands this case
5 places for such purposes.
6 With regard to judicial notice, we had, in fact, set forth a
7 schedule which was dispatched to my learned friend but I know he didn't
8 receive it in the post. We found out there was a technical reason for
9 that and that will be remedied. In that particular document, there is
10 237, I think, but please don't hold me to the figure, something in that
11 region, of adjudicated facts that we have drawn from the decisions in the
12 Tadic and Celebici cases, in particular, and which we are putting forward
13 as particularly factual proposals as which we invite my learned friend to
14 comment on and we would then propose to incorporate in a motion for
15 judicial notice.
16 So basically, as soon as my learned friend Mr. Kostic and I have
17 had a conversation about this, we will be in a position to motion the
18 Chamber on the issue of the judicial facts. So taking account certainly
19 of the fact of the 7th of December deadline, I am confident we shall be
20 more than ahead of that deadline.
21 Regarding other matters of stipulation of fact by agreement
22 between the parties, I have also prepared a list and I think, yes, my
23 colleague kindly indicates it's something like 96 factual propositions in
24 there. It's thus not a long document, and I am submitting the same also
25 to Mr. Kostic so that we can consider between us what facts he may agree
1 with for stipulation to the Court.
2 So to that extent, again, I think it will be a very short time now
3 before we have our areas of agreement and disagreement pretty much mapped
4 out. Subsequent to that, we have to weave that into the pre-trial brief.
5 Already, the legal structure is completed. Much of the factual structure
6 is in place in terms of our approach, of course, and it really next will
7 need anything to be woven in, in terms of what will be agreed or disagreed
8 as between ourselves.
9 Now, again, we are, thus far, I hope I'm not hanging myself here,
10 but we are confident that we are heading comfortably to the date that has
11 already been set to the 7th of December for compliance of 65 ter in all
12 those respects. So unless you have a specific question, I think that's
13 all I have to say on that point, Your Honour.
14 JUDGE RODRIGUES: [Interpretation] Very well. Thank you very
15 much, Mr. Blaxill. I think you have moved to our next item on the agenda,
16 the judicial notice, but before we broach that particular subject, I
17 should like to give the floor to Mr. Kostic to respond to what Mr. Blaxill
18 has just said. I know that tomorrow you will have a meeting, but could
19 you tell us now if there is any agreement as regards factual and legal
20 issues, and since the judicial notice has been mentioned by Mr. Blaxill,
21 if there is anything that you wish to state in that respect as well.
22 MR. KOSTIC: Your Honour, I'm awaiting to receive the documents
23 that Mr. Blaxill referred to, so there's very little I can add. I do
24 envision one issue when dealing with the issues on stipulations and
25 judicial notice which will be the facts that will be drafted, and that is
1 that, with the other documentation that's coming in that we have to do, my
2 concern is in having the client review those facts. Because, after all,
3 any stipulations, any agreements, any judicial notice agreements would
4 have to have the consent of the client.
5 The issue there, of course, is being able to have the client read
6 that in his language. So that, I'm going to say, is something that I'm
7 going to have to -- we're going to have to deal with, and I'm hoping that
8 my friend from the Prosecution will help me with that issue. But other
9 than that, I have nothing else to add other than you know we have already
10 told you that maybe about five times already that we are going to get
11 together tomorrow morning, so I won't repeat that.
12 JUDGE RODRIGUES: [Interpretation] So at least we know that
13 tomorrow you are going to meet and I should now -- the volume of the
14 microphones is very strong today -- I should like to go back for a moment
15 to the provisions of Rule 65 ter in order to mention that the pre-trial
16 brief pursuant to 65 ter (E)(i) we have always said that it should be the
17 result of conversations, communications and exchanges between the
18 parties. Therefore, the working instrument that the Prosecution spoke
19 about last time, we can conclude that it is in that stage and the parties
20 need to meet to see where we stand in relation to that instrument.
21 So I can go on to the next agenda item, the list of witnesses that
22 the Prosecution intends to call in accordance with 65 ter (E)(iv). You
23 have told us that you intend to call 180 witnesses. In the scheduling
24 order of the 4th of July, we ordered the Prosecution to try and limit the
25 number of witnesses to two per fact. The Trial Chamber may envisage a
1 schedule within which each party will be accorded a limited amount of time
2 for the presentation of witnesses, regardless of the number of witnesses
3 it intends to call.
4 So I think, Mr. Blaxill, we have reached a stage when, as I have
5 already said, we have to be expeditious and fair, and as I have also
6 already said, the problem at the Tribunal here today is the problem of
7 Judges' time, judicial time, so I repeat we should do as much as we can
8 outside the courtroom. That means that we should bring to the courtroom
9 the witnesses who are essential for defining the responsibility of the
10 accused. The majority of other things can be brought to the trial through
11 affidavits, through deposition testimony, through transcripts from other
12 trials, testimony given in another case can be brought here. But here, of
13 course, we have to discuss matters because what may occur is that Defence
14 counsel may have questions for that witness but the Chamber is going to
15 keep that under control.
16 We will see which other new questions being put to the witnesses
17 because, unless there are no new questions, then that transcript of
18 testimony can simply be entered into the record. Then there's also the
19 question of expert witnesses, and if we keep to this idea that we bring
20 into the courtroom witnesses who have to do with the heart of the matter,
21 the responsibility of the accused, then perhaps we would be able to reduce
22 the number of witnesses on one hand and, on the other, to reduce the time
23 for the presentation of evidence here in the courtroom. Something else
24 that perhaps we should take into consideration right now, we are talking a
25 lot about reducing the number of witnesses but perhaps we could look at
1 another possibility and that is how we can reduce the time of each
2 testimony here in court.
3 I have some suggestions to make to the parties for their
4 consideration but, for the moment, are you going to stick to this number
5 of 180 witnesses, Mr. Blaxill? I can see already that your answer is no.
6 So what is the number going to be?
7 MR. BLAXILL: Well, I'd hoped you might have accepted the no
8 without another number, Your Honour, because the reality is that we are
9 going through that witness list with essentially two things in mind.
10 Firstly, where we can do without the witness because we simply have more
11 than we need, and, in that respect, we are being mindful of Your Honour's
12 comment at the last Status Conference when you said that the Chamber would
13 take what is becoming, I think, a fairly normal practice that two
14 witnesses per fact is enough.
15 Now, we have a fairly substantial number -- let's say one of our
16 areas of witnesses at the moment contains probably 30 names, people who
17 would give a large picture of events in the cities in view of this
18 nature. And it is something that I will discuss as soon as I'm -- my
19 trial leader returns, because at the end of the day I would like him, I
20 think, in fairness, to have a considerable say in that kind of strategy as
21 to which of the witnesses he feels are significant for the case he's
22 leading. But we would be looking at maybe a half a dozen out of 30 to be
23 of assistance to the court and we would not necessarily need to trouble
24 any more.
25 We have other areas the same, where perhaps you have witnesses at
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 different levels of authority who may have had contact with several
2 persons that prove a point. Now, we can choose: Do we have to call one,
3 two, or three of them? No, we would probably find one of them and say,
4 "Well, that is sufficient."
5 So I think there will be a considerable -- I'm confident there
6 will be a considerable paring of the list. I'm confident also that we
7 will be submitting and suggesting to Your Honour, and with my friend's
8 leave, the use of affidavits for a number of witnesses, where I think
9 their evidence is perhaps less contentious or where perhaps there is maybe
10 only one question that would be asked, and that question would hold good
11 for all those people and maybe there would be some way around that.
12 So the answer is no, we do not anticipate the number that was
13 previously expressed. And really and truly, again we are setting our
14 sights that probably we will be in a position to elucidate more accurately
15 as to numbers by the time of the November conference, where you scheduled
16 I think the 27th, and that would be, on the basis of our final list, ready
17 for filing on the 7th of December. So I think -- sorry, I believe it's
18 the 17th of November. My mistake. I'm obliged. So perhaps I could leave
19 it at that. It may not be an entirely satisfactory response today, except
20 I know we will dramatically reduce the list, and we take on board
21 everything Your Honours have had to say about it today and before.
22 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Blaxill. We are
23 cautioning today, and of course forecasting things, speaking in advance,
24 so it's normal that we should be cautious. It is true that the Chamber
25 has given this guidance of two witnesses per fact, but you should have a
1 list of reserve witnesses, should you need them. So that is the other
2 side of the coin. I think that is the reasonable thing to do. We're
3 saying two witnesses for each fact, yes, but we're also saying you can
4 tell us that you have a reserve list of witnesses and, if necessary, you
5 will call them. So I'm giving you this indication for the moment.
6 I suppose that the Defence has nothing to say at this point. Am I
7 interpreting correctly your position, Mr. Kostic? In that case, we can go
8 on to the exhibits. And I think that there is a problem there. The
9 Prosecution has said that it needs to discuss with the Defence the
10 authenticity of documents in order to determine in which cases those
11 documents are contested, or rather their authenticity is contested.
12 I would like to add that I was about to put this possibility
13 before the parties. You know there is a practice of bringing a document
14 by a witness and then the witness will say this and that about it. I
15 think that it is not necessary to bring witnesses to say that the document
16 says such-and-such. We can read the documents. But what may happen is
17 that there is an important question that is raised by the document, in
18 which case one needs to have a witness. So I think perhaps you could
19 consider the possibility of documents speaking for themselves, and
20 witnesses will come related to those documents if that is really
21 necessary. In that way, we could overcome the question of authenticity,
22 so that we can organise all the documents in cooperation with the
23 registrar, so as not to waste time here in the courtroom. If things are
24 well prepared in advance, one can save a great deal of time, courtroom
1 So authenticity and this question of allowing documents to speak
2 for themselves. Mr. Blaxill, your comment.
3 MR. BLAXILL: To that extent, I'm wholly in accord with what Your
4 Honour is saying. In the preparation of our exhibit lists and in dealing
5 with documentary evidence, we are endeavouring to ensure that, to the best
6 level that it can be established, the authentication of the document has
7 been done. Now, on that basis, it is a possibility, I would hope, that if
8 we say we want to use a specific document, then it quite -- is conceivable
9 that there would be perhaps no objection by the Defence if we have shown
10 that, in the background, we do have the authentication evidence. It is an
11 issue I will discuss with Mr. Kostic. And that means, at least, that if
12 we have the evidence, we'd only call it if we had to, but otherwise, we
13 could just simply seek admission of the documents.
14 The Rule, I think, confused me very slightly in that the
15 obligation under 65 ter appears, Your Honour, to be that we should file
16 our list of exhibits by the due date, say the 7th of December. But of
17 course, I anticipate -- and in fact, I've not imagined it, because I think
18 my learned friend mentioned it in one connection in the last Status
19 Conference -- that of course it's very difficult to ask for comment on
20 authentication on the basis of a list. I imagine Mr. Kostic would be in
21 his rights to say, "I want to see the document before I say whether I
22 agree on its authentication or not." But having said that, even if the
23 Rule itself does not, we have discussed this and we will do our best to
24 disclose those documents in advance of time insofar as we can so that he
25 can consider the authenticity issue. We are in preparation of that.
1 Again, we have the same target date, and again I propose talking to
2 Mr. Kostic on that specific issue whilst he is here between the two Status
3 Conferences. Hopefully, we can get a workable result that will have
4 things in good order by the 7th of December.
5 JUDGE RODRIGUES: [Interpretation] Mr. Kostic, have you any
6 comments to make on this matter? Because we really need to speed things
7 up to finish by 6.00 at the latest.
8 MR. KOSTIC: Your Honour, I have a very short comment. I just
9 want you to understand that Mr. Blaxill and I have talked about this. We
10 understand the issue. And he is right that I would like to see the
11 document in question before -- not only myself, but of course with the
12 client's assistance, to make sure that we make a decision on whether we
13 can stipulate to the authenticity or not.
14 JUDGE RODRIGUES: [Interpretation] Yes. On my agenda which I read
15 to you, I have the issue of judicial notice. Mr. Blaxill mentioned the
16 possibility of judicial notice, using evidence from Celebici and the Tadic
17 case. I should like you also to consider the hearing 61 regarding
18 Karadzic. Have you considered that possibility, taking those materials as
20 MR. BLAXILL: I've thought about it, Your Honour. Certainly they
21 are materials that have come before this Tribunal and they are materials
22 that have come before us on solemn declaration in an open hearing. The
23 difference between the Rule 61 hearing and a trial is, of course, that
24 that is not evidence that is tested by a Defence, it is not evidence
25 adduced for the purpose of detention or acquittal of an accused, and it is
1 connection with the issue, essentially, of international arrest warrants.
2 So I have not at this stage resorted to that particular judgement as being
3 one for the judicial notice prospect. Perhaps it's something, I must say,
4 I would sort of look to Your Honour's guidance as to whether the Chamber
5 would be happy with that particular scenario and give my learned friend
6 the opportunity to comment, because there is that subtle difference--
7 well, quite considerable difference between a Rule 61 hearing and, of
8 course, a formal trial.
9 JUDGE RODRIGUES: [Interpretation] Yes. We are in agreement,
10 Mr. Blaxill. But in the area of contested issues between parties, we
11 could always consider all available material. I should like to hear
12 Mr. Kostic on this point, though, whether there is any point in
13 considering this possibility as an issue of discussion, whether we can
14 gain anything from it, and if so, how.
15 MR. KOSTIC: Your Honour, I agree with Mr. Blaxill's
16 interpretation in regard to the different types of hearings in question,
17 but I'm also concerned with the issue of the confrontation of witnesses,
18 of course. So, obviously, I think I would not be happy to have that type
19 of evidence come in, generally speaking. But you do have to realise that
20 I'm not sure if I know all of the evidence that had come in during the
21 Rule 61 hearing, which occurred, I think, maybe some four years ago.
22 Obviously, if Mr. Blaxill feels that he wants to take advantage of that,
23 we will treat it as we have with the other matters, and I will have a
24 chance to object and you'll hear that objection. Thank you.
25 JUDGE RODRIGUES: [Interpretation] I should nevertheless like the
1 parties to bear in mind, yes, there is a difference. The evidence under
2 Rule 61 hearing were not tested, to use that expression, by Defence
3 counsel. Other transcripts and testimonies were put to the test. But
4 there is at least something that one can discuss between the parties: Is
5 there something that I can accept? And another part that I do not accept
6 I will put to the test.
7 We have said regarding the transcript testimony from other cases
8 given under oath, we have said that they were put to the test by the
9 Defence counsel, and only then can we accept new questions, so as to avoid
10 any repetition, to make the best of what we have, without repeating
11 things. So all these persons could come not to repeat what they have
12 already said but to respond to questions that may be put to them regarding
13 new matters and new questions. That is an idea that I would like to put
14 to you for you to consider.
15 Perhaps I should speed things up a little, because we have only
16 reached the third item of the agenda among the 11. Maybe I could list the
17 matters and you can prepare a response.
18 The next point is item 4, reciprocal disclosure in accordance with
19 Rule 66(B) and 67 of the Rules of Procedure and Evidence. I think it can
20 be noted that the parties have still not discussed this, but they will do
21 so. At the last Status Conference, we thought we understood that the
22 Defence requested the disclosure of evidence in the possession of the
23 Prosecutor, pursuant to Rule -- of the accused to Rule 66, and the
24 question raised was whether reciprocal disclosure will be resorted to
25 pursuant to 66(C). I know your reply will be that we still haven't
1 discussed this.
2 So we come to special defences in 67(A)(ii). The Defence told us
3 last time that the Defence will reserve the right to invoke the defence of
4 alibi. I should like to remind you that 67(A)(ii) refers to certain
5 obligations of the Defence, and these obligations have to be carried out
6 as soon as possible and, in any event, prior to the beginning of trial.
7 We're inclined to apply this Rule in a rather strict manner in order to
8 avoid the useless presentation of evidence and repeating an experience
9 that we had in another case. So we have to bear in mind that if there is
10 a defence of alibi, that it already exists in the case. So it is at this
11 point, that is, before the trial, that it should be invoked or not. That
12 means that after the beginning of trial, I am telling you, I am warning
13 you, that it would be very difficult for the Chamber to accept. I'm
14 saying this so that things should be quite clear for the transcript.
15 Therefore, Mr. Kostic, do you still have this idea of invoking the
16 defence of alibi or do you wish to think about it until the beginning of
18 MR. KOSTIC: Your Honour, it all depends if there's any additional
19 information that I receive from the Prosecution. The reason I think I
20 reserved it the last time is that we still haven't got all the
21 information. I can tell you that -- boy, I don't want to -- I don't want
22 to be like a weatherman and give you a prognosis. It's more likely that
23 we will not use that, but I want to reserve it at this point, just to make
24 sure, until all of the discovery materials come in. Thank you.
25 JUDGE RODRIGUES: [Interpretation] Yes. The useful conclusion
1 would be that, Mr. Kostic, you must bear in mind that Rule 67 is quite
2 clear in saying that notification of this defence must be made prior to
3 the beginning of trial.
4 So we come to opening statement. Perhaps it is still very early,
5 but in any event, it is another matter that the parties must think about.
6 For the Prosecutor, it has been customary for him to make an opening
7 statement at the opening of trial. As you know, regarding the Defence,
8 you have the possibility of choice: Either you make an opening statement
9 at the beginning, or not. If you do make an opening statement, again you
10 have a choice: either to do it immediately after the opening statement of
11 the Prosecutor or after the completion of the Prosecution case and before
12 the beginning of the Defence case. And to speed things up, the answer of
13 the Prosecutor regarding whether he will have an opening statement is
14 yes. Can he confirm that?
15 MR. BLAXILL: Yes, Your Honour.
16 JUDGE RODRIGUES: [Interpretation] Yes. It's yes. The microphone
17 wasn't on, but I saw him nod.
18 And Mr. Kostic, what about you?
19 MR. KOSTIC: Your Honour, we will make an opening statement. I
20 do -- I have to make some calculations that have to do with length of the
21 trial and other matters, whether we will make it in the beginning, right
22 after the Prosecutor's, or we will reserve it until the beginning of the
23 Defence case.
24 JUDGE RODRIGUES: [Interpretation] I received an interpretation
25 saying the Defence -- let me look.
1 Yes, fine. The next question, perhaps it is too early to raise
2 it, but we are trying to plan all these things and, in order to plan, we
3 have to take into consideration all possible elements. Perhaps it is too
4 early for the Defence to answer this question, but is the accused going to
5 testify? That is our first question. Is he going to make a statement
6 pursuant to the provisions of Rule 84 bis of the Rules of Procedure and
7 Evidence or will he not be doing either?
8 MR. KOSTIC: Your Honour, Mr. Galic does intend to testify, and
9 I'm quite certain it will be done during the Defence case in chief.
10 JUDGE RODRIGUES: [Interpretation] Does that mean that he intends
11 to testify, only to testify? As you know, there are two possibilities.
12 To testify is one, and to make a statement pursuant to Rule 84 bis is
13 another. When you say that he is going to testify, does that mean he's
14 not going to make the statement provided for by Rule 84 bis?
15 MR. KOSTIC: I think you are correct. I think it's going to be a
16 straight testimony during the Defence case, a question and answer
17 testimony during the Defence case.
18 JUDGE RODRIGUES: [Interpretation] So in any event, perhaps we
19 should leave this matter open and you can talk to General Galic about it
20 and see what his opinion is. In any event, that question will remain
21 outstanding until the next time we meet, Mr. Kostic.
22 The next point that we need to address is the question of expert
23 witnesses. The Prosecution has notified its intention to call six expert
24 witnesses and it has already communicated some of their reports to the
25 Defence. This is what the Prosecutor told us at the last Status
1 Conference. I should like to recall that Article 94 bis of the rules
2 stipulates that the findings of expert witnesses should be communicated as
3 such to the opposing party as soon as possible and shall be filed with the
4 Trial Chamber not less than 21 days prior to the date on which the expert
5 is expected to testify.
6 This rule also requires that the opposing party, within 14 days
7 after receiving the report of the expert witness, should file notice
8 whether it intends to cross-examine the expert witness or not. My
9 question is: Is there any news regarding this point, Mr. Blaxill?
10 MR. BLAXILL: Not really, Your Honour. As regards a couple of the
11 potential experts, we are trying to identify still a couple of disciplines
12 where we want to get the most appropriate for the case as such and, in any
13 event, obviously, we are fully mindful of the rules and they will be
14 served appropriately and likewise filed with the Chamber appropriately.
15 Having said that, the other initial experts that we had have, in
16 fact, been served but we have not resorted to that rule at this stage but
17 we have included that but identified within the 66(A)(ii) material. So at
18 least my learned friend has had them. He has had them for some
19 considerable time.
20 However, because we have not highlighted these statements as and,
21 in fact, I don't think at this stage they are somewhat preliminary, I
22 don't think they are in a form I would wish to see as being filed as the
23 report, so on that basis, clearly I would not wish to in any way try and
24 hold my learned friend to any specific response in respect to those
25 statements. They are essentially to alert him to the content of the
1 evidence and a little later, when all else is done as regards witnesses,
2 we will then obviously propose to serve the fully prepared reports as such
3 and then we can go through the necessary responses and filing that is
4 appropriate under the rule.
5 JUDGE RODRIGUES: [Interpretation] Very well. I don't know
6 whether Mr. Kostic has anything to add on this item.
7 MR. KOSTIC: No, Your Honour.
8 JUDGE RODRIGUES: [Interpretation] No, you haven't. Thank you
9 very much.
10 So we go on now to item 9 of the agenda and that is the
11 participation of the Defence as provided for by Rule 65 ter (F). I'm not
12 going to repeat what I have already said at the last Status Conference.
13 In any event, there are here at least three points through which
14 the Defence should contribute to this pre-trial conference because,
15 afterwards, we will have a pre-trial Defence conference at the end of the
16 Prosecution case in chief. Those points are the kind of Defence of the
17 accused, the matters which the accused intends to contest. I am not going
18 to ask you, Mr. Kostic, whether you already have a response for these
19 three points, but I wish to convey to you some wishes of the Chamber.
20 As you know, the work of the Defence is done by the Defence, but
21 the key issue is the responsibility of the accused in relation to the
22 indictment. As you know, there are a whole number of facts and background
23 information in the indictment which does not directly concern the
24 accused. So there may be a certain area of agreement, judicial notice or
25 acceptance of certain facts in part, at least. Otherwise, if you do not
1 agree, you should tell us which are the reasons for you taking issue with
2 these things. I am joking a little, but I am quite serious too.
3 The more agreement there is, the less reasons you have to
4 provide. Of course, that affects the Defence of the accused and his right
5 to defend himself but, after all, the crux of the matter is his
7 Do you have any comments or reactions at this stage, Mr. Kostic,
8 or would you like to reserve your comments for later, after giving the
9 matter greater thought?
10 MR. KOSTIC: Your Honour, we have thought about just the question
11 that you've asked. Obviously, much of our thoughts on it are based on the
12 information we have received, the research we have done, and the discovery
13 materials. I think we will, and I'm cognisant of the procedure that we're
14 going through, in other words, the attempts to reach some perhaps
15 agreements on some issues. We will be able to tell you whether we agree
16 or we do not agree on some of those facts, and I think that will, in some
17 way, build a skeleton of the Defence. So I think you will have some idea
18 as to that.
19 So I am mindful of that obligation. We will do that. My only
20 concern is that your order gives us seven days between one and the other
21 and I would think, unless Mr. Blaxill and the Prosecution has an
22 objection, I would appreciate obtaining more time in that regard, mainly
23 because we do have a little bit of a break right after that which you are
24 not -- well, at least I'm told that the Tribunal is on vacation. I would
25 like to take advantage of that time to get a little more time to do that.
1 Because parallel with doing that particular task, dealing with the
2 obligations here, as you know, we'll be dealing with all of the other
3 obligations in terms of judicial notice in terms of stipulated facts,
4 reviewing the witness statements and so on, and that would be helpful to
5 the Defence.
6 I would sort of orally move the Court to give us some additional
7 time. Thank you very much.
8 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Kostic. I
9 thought I heard that Mr. Blaxill would facilitate your task because he
10 indicated that he would not only meet the deadline but submit it in
11 advance. We will see what will happen at the next Status Conference. For
12 the time being, we will stick to the timetable that is already suggested.
13 As I have already indicated, the plan is as follows: We impose
14 time limits and deadlines. We will have deadlines and time limits for the
15 whole trial. We will say we will finish on such and such date. We, of
16 course, have to do our best in order to respect those deadlines and time
18 However, if there are exceptional circumstances, if something
19 unexpected happens, we are always available to discuss matters. But we
20 have to proceed with deadlines and time limits in advance. The parties
21 have to know the opening and the closing date of the trial, and we also
22 have to know how much time is necessary for each particular stage of the
23 trial so that everybody who is working on the trial can plan both their
24 private and professional agendas.
25 We will see if Mr. Blaxill is able to submit the necessary filings
1 prior to the set deadline. We will see. If he is able to do that, so
2 much the better. But for the time being, we will stick with the timetable
3 that has been suggested. The timetable is something that is useful for us
4 to proceed with our work but we need not be slaves of that timetable.
5 The next item on our agenda is actually the timetable, the
6 calendar. There will be a Status Conference on the 26th of October, as it
7 has already been agreed. You have enough time to work. The idea was to
8 give you as much time as possible for you to meet together and to discuss
9 the matters. So this time is for you to meet and on the 26th of October,
10 you will tell us the results of your meetings. And if necessary, will you
11 inform us on your future meetings and there will be another Status
12 Conference on the 27th of November, 2000.
13 At this stage of the proceedings, I should like to tell you that
14 the pre-trial conference which is covered by Article 73 bis is scheduled
15 for the 23rd of January, 2001, Tuesday. We have to have everything ready
16 before that and the pre-trial conference, as far as things stand now, is
17 scheduled for the 23rd of January.
18 As I have already indicated, the Chamber intends to be as strict
19 as possible during this preparatory stage of the proceedings and provide
20 you with necessary guidelines during the trial itself. Maybe we will need
21 one additional date to continue the pre-trial conference because I'm sure
22 that a lot of issues will have to be discussed. So for the time being, we
23 have the date of the 23rd of January for our pre-trial conference. If it
24 is necessary, there will be a continuation of the pre-trial conference
25 afterwards, if necessary, of course.
1 And this brings me to item 11 of our agenda, namely to see whether
2 there are any additional matters which the parties wishes to raise.
3 Mr. Blaxill.
4 MR. BLAXILL: Just one I would like to raise with Your Honour at
5 this time. And that is this: It is in respect of the filing of any
6 particular pleadings, notices, or the like in the course of proceedings.
7 I am conscious of the wholly appropriate fact that Your Honour wishes to
8 have documents prepared, legal pleadings and the like, to be filed in both
9 the English and the French language or the French and the English
10 languages. Obviously, it is entirely your right, and as these are the two
11 languages of the Tribunal, it is wholly fitting that we should do so. My
12 only concern is that the issue always comes of one of translation.
13 Now, whilst Mr. Terrier was here, perhaps we could have a filing
14 date as being accepted in either language, the first one filed would be in
15 compliance with a filing deadline. My new trial leader being a gentleman
16 from Australia, I regret, Your Honour, we have lost your fellow French
17 speaker on the Prosecution bench. So to that extent, I would ask whether
18 we could have a direction from Your Honour relating to the issue of filing
19 legal pleadings and so forth, and essentially as to whether we may have a
20 situation that filing in the English language would suffice to show that
21 we have complied with a deadline or an order set by the Chamber and that,
22 perhaps, at the same time, if we cannot file simultaneously and obviously
23 we would try to as, if nothing more, as other than a courtesy, we would
24 obviously try and do so, Your Honour. But if we could not do so, then if
25 we simply could give confirmation and an estimate as to how long the
1 translation would take.
2 I do know a colleague of mine in other case has raised the issue
3 recently in discussion regarding the problem of filing simultaneously but
4 at the same time allowing for translation time. So perhaps your guidance
5 we would seek on that particular issue.
6 JUDGE RODRIGUES: [Interpretation] Mr. Blaxill, yes, you are
7 right, and we have to say that this is perhaps the only bilingual Chamber
8 of this Tribunal. We will consider the issue that you have just raised
9 and next week, during our next Status Conference, we will provide you with
10 an answer because I really need to consider this question within the
11 overall framework, organisational framework of the work of the Chamber.
12 However, there was an issue that you raised regarding the problem
13 of translations. I have to ask you to be careful when it comes to the
14 translation of witness statements. Sometimes you provide the Defence with
15 a great number of statements that you do not use during the trial. We had
16 a similar situation in another case that was tried at this Tribunal. The
17 translation service was flooded with translation requests and it turned
18 out later on that many of those statements were not used during the
19 trial. We have to bear in mind the complexity of the work of the
20 translation unit and the load of work that they have.
21 We will give you an answer next week, Mr. Blaxill.
22 Mr. Kostic, is there anything that you wish to raise, anything
23 that hasn't been mentioned so far and you think it's important?
24 MR. KOSTIC: No, Your Honour, I do not.
25 JUDGE RODRIGUES: [Interpretation] Thank you very much,
1 Mr. Kostic.
2 At the end of the Status Conference, I'm going to give the floor
3 to General Galic. Good afternoon, once again, General. I should like to
4 know whether there is anything that you wish to say here in the courtroom,
5 in particular, regarding your health. You have the floor, Mr. Galic, let
6 us hear you.
7 THE ACCUSED: [Interpretation] Your Honour, I don't have anything
8 in particular to add after this conference. However, I should like to
9 draw your attention to several things. First of all, there has been a
10 major problem regarding my Defence. I have tried to notify the Chamber of
11 that problem on several occasions but I must say, once again, that the
12 appointment of Mr. Kostic took very long and he was temporarily assigned
13 as counsel as of 19th of June.
14 Then, there was the period of summer vacations which has affected,
15 to a certain extent, our work in terms of time that we had to prepare
16 ourselves. There is another important thing, and I don't know whether you
17 have any influence over such matters but I have to tell you it is
18 interesting to note that, except for my counsel, the other members of the
19 Defence team have not received a penny for their work. I don't know
20 whether they can continue working without any remuneration. There has
21 been certain improvement lately, but it has been caused by some external
23 Thank you very much.
24 JUDGE RODRIGUES: [Interpretation] Thank you, General Galic. We
25 will take note of the issues that you have raised. I hope that the
1 registrar has also heard you. I hope that the Tribunal is respecting the
2 principle of adequate remuneration for professional work. We hope the
3 situation will improve for you, and I hope that the registrar will do what
4 is possible so that you can continue preparing your Defence in good
6 I wanted to finish at 6.00 and it is three minutes past six. I
7 should like to thank our support staff who have stayed until this late
8 hour, but we do have a lot of work and I hope that the results will be
9 good and I would like to thank all the participants in this courtroom. We
10 will see each other again on the 26th of October. I should like to wish
11 you good and successful work and cooperation.
12 --- Whereupon the Status Conference adjourned at 6.04 p.m.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.