Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9682

1 Thursday, 6 June 2002

2 [Closed session]

3 [The accused entered court]

4 --- Upon commencing at 9.06 a.m.

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Page 9683

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16 [Open session]

17 JUDGE ORIE: Yes, Mr. Piletta-Zanin, please proceed.

18 MR. PILETTA-ZANIN: [Interpretation] Thank you, Mr. President.

19 The first part of this intervention that the Defence has to do in open

20 session and the second matter we will do in closed session, when we return

21 to closed session, because it may concern some elements linked to that.

22 The issue that the Defence would like to raise is the respect of

23 the procedure on a particular point which is the administration, the

24 production of evidence. Although, the Rule doesn't say anything about the

25 time in which an exhibit has to be tendered to the file. We can start

Page 9684

1 from the principle or we can assume that it should be tendered in relation

2 to and at the same time, concurrently with the testimony of a witness or

3 witnesses that it concerns. There would be no sense, Mr. President

4 otherwise to hear witnesses and then not to tender exhibits or not to be

5 able to discuss the exhibits, except for several weeks later or several

6 months later, depending on the proceedings.

7 So the Rule is Witness and exhibits. Now, having said that, we

8 have had a problem which is a problem of size, a series of exhibits,

9 because all of the exhibits have the same -- seem to have the same --

10 afflicted in the same way, which is grattage, although your Chamber has

11 not yet decided on the admissibility of these exhibits. So what we have

12 asked is that the Prosecution informs us of all the steps that they have

13 taken or that they were able to take in relation to a matter, that is,

14 what happened. So what happened in relation to these manipulations.

15 Now, the Prosecution has given us reports, which is very short,

16 three or four chapters only, where we are not enlighten in any way on this

17 matter. The only thing that we are being told, do not worry about it,

18 everything is going for the best -- in the best of the worlds and it seems

19 that the people will be able to confirm that the date is exactly the one

20 we say it is.

21 Now, Mr. President, what we wanted is not to have this, but to

22 have and throw some light for your Chamber and for us on the question on

23 how these manipulations were done, how they could have been done. Since

24 nothing was done whether this was voluntarily or not, but this is the

25 fact, Mr. President. We, therefore, believe that the Defence cannot be

Page 9685

1 forever suspended in midair knowing whether these exhibits are being

2 tendered or not and we therefore believe that it is necessary for your

3 Chamber to make a decision and your Chamber has to take this decision

4 today. Are we to accept this in this trial in relation to an element

5 which is important on the -- regarding the theory of the shelling of the

6 Prosecution. When we look at the dozens of pieces and what is proven is

7 that there have been manipulations to date. If this is a question asked

8 by the Defence, the Defence can say that on our side we know the answer

9 well and that it is not admissible that the exhibits that have all been

10 manipulated be tendered, be accepted, admitted by this Chamber.

11 Now, what we are asking your Chamber is that to have a decision

12 very shortly in which the Chamber would reject all the exhibits, and I

13 mean all of them, their entirety, I am talking about exhibits in relation

14 to Markale incident, all of the exhibits that were tendered by the

15 Prosecution, produced by the Prosecution which are all product of a

16 manipulation.

17 This, Mr. President, is the submission of the Defence and if we

18 can have that decision as soon as possible. We are asking this because

19 there could be other witnesses appearing in relation to Markale. And as

20 long as we don't know which side it is going, the Defence is in a

21 situation of technical inferiority, since we do not know your decision on

22 a very important part which is the exhibits for the Markale incident.

23 Thank you very much, Mr. President.

24 JUDGE ORIE: I will discuss the matter with my colleagues and the

25 Chamber will let you know.

Page 9686

1 MR. PILETTA-ZANIN: [Interpretation] Thank you very much.

2 MR. IERACE: Mr. President, there are a number of matters that I

3 wish to raise. I do not seek to raise them now. I would seek to raise

4 them at the conclusion of the evidence of Witness W. They have to do with

5 the trial time table and the like and I am happy to respond to what my

6 learned colleague has said at that time as well. Thank you.

7 JUDGE ORIE: Yes. Mr. Piletta-Zanin, you had another issue to be

8 raised in closed session?

9 MR. PILETTA-ZANIN: [Interpretation] Indeed.

10 JUDGE ORIE: I would like now to turn into closed session.

11 [Closed session]

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9 [Open session]

10 JUDGE ORIE: We are in open session.

11 MR. IERACE: Thank you, Mr. President.

12 Mr. President, the Prosecution is experiencing extreme difficulty

13 in keeping to the time table which requires us to finish our case by the

14 5th of July. I had hoped to raise this issue yesterday, as I indeed

15 anticipated I would last week. It became clear yesterday that a greater

16 priority was to continue with evidence in closed session. I, therefore,

17 had in mind to raise that issue, principally, together with some others

18 today, in between our closed session evidence and the recalling of

19 Mr. Mole. I no longer have confidence that there will be an opportunity

20 today.

21 Mr. President, the Prosecution would be grateful if time could be

22 found before tomorrow afternoon to hear submissions on this issue, this

23 principal issue. The Prosecution could then take advantage of next week,

24 when we are not sitting, to reorganise its case. It seems to me that,

25 having regard to the time table for tomorrow, that is, the calling of

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Page 9722

1 General Van Baal and the special requirements which have been put in place

2 for his evidence, that we will not have an opportunity between 9.00 and

3 1.45 p.m. tomorrow. Therefore, the only remaining possibilities are

4 either this afternoon in a different courtroom or tomorrow morning before

5 9.00 or tomorrow afternoon after 1.45. And I say that, of course, mindful

6 of the lack of notice to you, Mr. President and Your Honours, and to the

7 Registry. I would not make this application were it not for the fact that

8 it is a matter of, in my view, extreme urgency.

9 I intimated yesterday that I had been approached by the head of

10 the Victims and Witnesses Unit and indeed met with her to hear from her

11 their concerns as to the pressure which they are under in this case and of

12 course which one can readily understand, given the changes on a daily

13 basis to the witness schedule.

14 Mr. President, I don't seek to venture into making submissions at

15 this stage. I simply seek an opportunity to do so. It seems to me that

16 if we did it in written submissions, it would take too long, having regard

17 to the need to give time to the Defence to consider our written

18 submissions. Rather, practically, it is best done, if it meets with your

19 approval, if we have an opportunity to do so early. Thank you.

20 JUDGE ORIE: Yes, Mr. Piletta-Zanin.

21 MR. PILETTA-ZANIN: [Interpretation] Thank you, Mr. President.

22 First of all, as a matter of fact, we are, in relation to the

23 proceedings, in the middle of our life's journey, so to speak, and in

24 fact, the way I understand the Prosecution's argument, Prosecution has

25 reason to be more and more concerned, and I do agree that they should be

Page 9723

1 concerned. However, Mr. President, the fact is that the Prosecution is

2 creating these difficulties. We have seen this today, and it is not up to

3 the Defence to bear the consequences. One example --

4 JUDGE ORIE: Mr. Piletta-Zanin, the issue is whether we could find

5 a place and a time by tomorrow. Who is to blame for the situation, I

6 think the Chamber is perfectly aware that there is never a black and white

7 situation. So we don't have to discuss this at that moment, at this

8 moment, but can we find a place and a time to discuss the issues raised.

9 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I will answer

10 your question. There are two orders on your -- two responses -- motions

11 regarding the Prosecution motions. I have not been able to look at them

12 until last night 2.00 a.m. Now, I am being asked to work full steam

13 ahead. Now, last week I had to wear sunglasses, not because of style, but

14 my eyes were not allowing me any more to see the transcript. Now, if this

15 is what the situation is, that is very well, but we do have to breathe

16 occasionally. Yes, occasionally in fact. And we cannot accept this

17 situation. And I am very sorry, but the only means that we have is to

18 stop the counterattack and to gain time and to continue, but we cannot go

19 on working until 2.00 in the morning.

20 JUDGE ORIE: The Chamber will consider your request, Mr. Ierace,

21 and we will let you know by today. If we would hear your submissions on

22 the time schedule, we would have to find a place and a time.

23 Is there anything else to be raised in open session?

24 MR. IERACE: No, Mr. President.

25 JUDGE ORIE: Yes. We will then turn into closed session again,

Page 9724

1 but not yet ask the witness to come in.

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11 [Open session]

12 JUDGE ORIE: Mr. Ierace, as you -- we are not yet in open session?

13 We are now.

14 Mr. Ierace, there will not be enough time to discuss the matter

15 today. If, however you would have in mind, for example, you can say I am

16 going to ask you tomorrow for one week extra or we can do it in two days

17 less, could you indicate if that would be the case and not to start a

18 debate at this moment, but at least to give everyone already an

19 opportunity to think about it. What is it that you were going to ask us

20 tomorrow, within 30 seconds, please.

21 MR. IERACE: Mr. President, five extra weeks. And I should also

22 indicate that we have learned that Mr. Van Baal will not be available

23 until 11.00 a.m. at the earliest. It appears there was some

24 misunderstanding as to whether tomorrow's session would be morning or

25 afternoon. I apologise to the Trial Chamber for that. Mr. Mole has been

Page 9774

1 waiting around since Monday, but perhaps in the circumstances, the period

2 of time, the one and a half hours before Mr. Van Baal's evidence could be

3 ultimately more profitably used by resolving this issue.

4 JUDGE ORIE: Yes. The Chamber cannot promise you that a decision

5 on five weeks could be taken in three hours. Tomorrow, I think, Madam

6 Registrar, we are not going to change the schedule any more. We start at

7 8.30 tomorrow morning. We gain that half an hour. The breaks will,

8 however, be at different times from usual because that is also in respect

9 of the interpreters and those who are assisting us. But we will finish at

10 the same time as usual.

11 MR. IERACE: Mr. President given that Mr. Van Baal --

12 JUDGE ORIE: I think Mr. Piletta-Zanin was now first. Yes.

13 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. Thank you

14 very much. Simply to say that it would be good if you -- if we can be let

15 know who should we expect tomorrow if Defence could be told who we can

16 expect so we can prepare ourself. You know the Defence sometimes is not

17 quite prepared. If we have one or the other witness, that will change our

18 preparation

19 JUDGE ORIE: [Previous translation continues] ...we will start at

20 Mr. Mole the continuation of the examination-in-chief at 9.00.

21 MR. IERACE: Mr. President, I could do that but we will not finish

22 Mr. Mole tomorrow. There seems little point in having another hour or so

23 his evidence tomorrow and then he will have to come back anyway in some

24 weeks.

25 JUDGE ORIE: Is there no way of getting Mr. Van Baal earlier than

Page 9775

1 11.00? I mean he lives nearby, I take it. Would there be no way of

2 starting earlier so that we can finish the testimony. I think he is

3 scheduled for two hours, I think.

4 MR. IERACE: Well, Mr. President, I would not be surprised if even

5 if he started at 9.00. He did not finish tomorrow, I have to say that,

6 based on what has happened time and again over the last few weeks.

7 JUDGE ORIE: That is another thing. I will call upon the

8 parties. Of course we had less problems than we had with the previous

9 witness for reasons everyone will understand.

10 MR. IERACE: I will try, Mr. President. I will try to --

11 JUDGE ORIE: If there would be a possibility to get Mr. Van Baal

12 at 9.00. We will start anyhow at 8.30 and we will see whether

13 Mr. Van Baal can come at 9.00.

14 We will now adjourn until tomorrow morning, 8.30 --

15 MR. IERACE: Mr. President, I do apologise. Assuming that

16 General Van Baal is not available until 11.00 or 10.00 or whenever, is it

17 your preference that we call Richard Mole for that intervening period or

18 that we do not?

19 JUDGE ORIE: It is just the examination-in-chief, and if he is

20 there -- and of course I have no idea on the line of questioning. If you

21 would have the stop in the middle of a line of questions, then, of course,

22 we could better wait until he is back. Let's try to use our time as

23 efficiently as possible.

24 Mr. Piletta-Zanin.

25 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. In order

Page 9776

1 to be as courteous as possible, including the Prosecution and Mr. Van Baal

2 the Defence would like to complain about the fact, once again, that we

3 have only been given the translations in relation to Mr. Van Baal just a

4 moment ago. I am talking about translation into Serbo-Croatian and it is

5 absolutely impossible, respecting the normal proceedings, if what

6 General Galic has just reminded me of, is that he does not have the

7 possibility of seeing what this person could have said or what he is going

8 to say, this is not normal fair play because if every time I have to stand

9 up and repeat it, and now in a way of repeating myself, every time it is

10 the very same story. I think you have understood me.

11 JUDGE ORIE: Has the statement -- let's not discuss the matter at

12 this very moment. We will think it over and we have to leave this

13 courtroom because another case will be heard. But I took notice of your

14 complaint that the translation has been provided only today or

15 yesterday -- today --

16 MR. PILETTA-ZANIN: [Interpretation] Now.

17 JUDGE ORIE: -- was not informed one week ago that you were

18 waiting for this translation. We will adjourn until tomorrow morning,

19 8.30, same courtroom.

20 --- Whereupon the hearing adjourned at

21 1.50 p.m., to be reconvened on Friday,

22 the 7th day of June, 2002, at 8.30 a.m.

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