1 Thursday, 3 October 2002
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.07 a.m.
5 JUDGE ORIE: Madam Registrar, would you please call the case.
6 THE REGISTRAR: Case Number IT-98-29-T, the Prosecutor versus
7 Stanislav Galic.
8 JUDGE ORIE: Thank you, Madam Registrar.
9 Good morning to everyone in the courtroom, General Galic, Defence
10 counsel, Prosecution, and also those who are assisting us present as
11 always because we are fully aware that we couldn't do anything without
12 your assistance interpreting or giving the technical support we need.
13 We are here today for the Pre-Defence Conference in accordance
14 with the Rule 73 ter, and it is important to see where we stand at this
15 very moment in respect of several issues on which we received motions
16 from -- or submissions from both parties. I would like to start with the
17 easy ones, I would say. Disclosure matters, could the parties inform the
18 Chamber what happened since the last Status Conference on the 20th of
19 September where there was some problems still with the disclosure of
20 newspaper articles, books and parts of them on their way to be translated,
21 as far as I remember.
22 Mr. Ierace.
23 MR. IERACE: Thank you, Mr. President. Good morning. The parties
24 met yesterday afternoon and discussed those various matters. As well, the
25 Prosecution received a letter from the Defence dated the 24th of September
1 2002. If I could go through some of the issues which we raised at the
2 last mention and progress on them. We indicated on the last occasion that
3 there were some 130 entries on the Defence exhibit list for which we did
4 not have copies, in other words, disclosure had not been made. The
5 Defence, in its letter of the 24th of September, re-affirmed that they had
6 indeed provided those documents to us. We maintain we have not received
7 them, having checked the entries alongside our record of what we received
8 from the Defence.
9 Mr. President, the problem I think is partly explained by the fact
10 that the confirming letter, signed by the Prosecution, as to what it has
11 received and which is drafted by the disclosing party does not set out any
12 detail as to the documents which have been handed over with the exception
13 of a disclosure made on the 26th of April, 2001. So we have asked the
14 Defence to simply provide us with copies of those documents. Secondly, on
15 the 19th of September, the Defence provided to the Prosecution three
16 cardboard folders of documents which comprised what appeared to be
17 original B/C/S documents together with translations. Having checked
18 those, a number of those documents do not appear on the exhibit list and
19 indeed the Defence confirmed yesterday that it was their intention and
20 their belief that those documents were on the exhibit list. So that is
21 the second problem with disclosure of the exhibit list. The Defence has
22 informed us that they will make some enquiries. We will let them know
23 which of those documents are not on the exhibit list to save some time.
24 But the Prosecution remains concerned that disclosure has not yet been
25 made of items on the exhibit list.
1 Moving on to the topic of videos and books. On the last occasion,
2 Mr. President, that is on the 20th of September, you indicated that within
3 ten days the Prosecution should be informed of the parts of the six books
4 and the videotapes which the Defence intended to tender. That has not
5 happened. Indeed, we still have received only four books, not six. I
6 raised that with the Defence yesterday and I understand that, in due
7 course, that they will inform us but we will appreciate knowing as soon as
9 The letter of the 24th of September in relation to videotapes
10 informed us that the parts on which the Defence relies have been sent for
11 translation and in due course we will receive the translations of the
12 relevant parts of the videotapes. The letter also informed us that in
13 relation to the translation of exhibit entries generally, that at this
14 stage, the Defence does not require our assistance in obtaining rough
16 Mr. President, as to the newspaper articles, we have confirmed
17 that we have received the 16 newspaper articles. We are not sure that we
18 had received translations, but we are checking that. So I don't raise
19 that as an issue at this point until we have completed our checks as to
20 the translation of the newspaper articles. In relation to the letter
21 which was sent out by the Defence dated the 30th of September informing us
22 of the first six witnesses and anticipated exhibits, the list of exhibits
23 indicates there are none, however, two videotapes will be presented, but
24 not tendered into evidence, and I read those words from the chart which
25 accompanies the letter.
1 The Prosecution inquired of the Defence the identity of those
2 tapes, in other words, which of the disclosed tapes are they, because
3 there is no identification which has been provided to us. We are informed
4 that in relation to the videotape that pertains to the second witness in
5 the order of witnesses to be called, that the Defence received that last
6 weekend, indeed has not disclosed it to us. In relation to the second
7 videotape, I am told by the Defence that they will confirm precisely which
8 of the disclosed videotapes it relates to, and by reference to what
9 appears on the videotape, which of three parts, three possible parts it
10 will be. The difficulty we have with that, I understand it relates to an
11 interview of the witness, is of course we don't have a translation, we
12 don't know what the witness looks like, and it is rather unsatisfactory as
13 a method, a methodology of informing us with precision as to what is to be
15 Mr. President, you also on the last occasion indicated that you
16 wanted the parties to reconsider the issue of agreed facts. There was a
17 filing --
18 JUDGE ORIE: Yes, I would rather deal with that as a separate
19 issue and first concentrate on disclosure matters.
20 MR. IERACE: Yes. Thank you, Mr. President.
21 JUDGE ORIE: Are there any observations from the Defence in
22 respect to what has been said by the Prosecution? Is it a good reflection
23 of what has been discussed yesterday and is there any comment to be made
24 on the, may I say, the complaints about the first part of the trial to
25 start? Perhaps we first start with the disclosure issues in general, so
1 not concentrated on the next week, such as the concern of the Prosecution
2 that now documents are disclosed which were not yet on the list, for
4 MR. PILETTA-ZANIN: [Interpretation] Yes Mr. President. Good
5 morning to everyone. We took note of this observation. Yesterday I asked
6 from the Prosecution to give us an example so that we know what happened,
7 and the Prosecution was not able to do it. So I found out, with great
8 relief, this morning that the Prosecution would give us a list of these
9 pieces of the documents so that we can see whether perhaps this is a
10 misunderstanding between us, which is always possible, or too that it is
11 just an error on our part, just a material error which is also possible,
12 and, therefore, we will make progress in this direction. Thank you.
13 JUDGE ORIE: When will the parties further discuss this matter?
14 Because I hear that the Defence is not yet convinced that documents were
15 disclosed which were not on their list, as far as I understand; while I
16 hear from the Prosecution that such documents were disclosed not appearing
17 on the list.
18 MR. IERACE: Mr. President, there is no point in the parties
19 meeting to discuss the 130 documents of which we advised the Defence two
20 weeks ago. There is nothing more the parties do about that. The Defence
21 simply maintains they have been disclosed; we maintain they have not.
22 JUDGE ORIE: Could they be redisclosed. If the documents are
23 there, 130 documents, it would take me one hour behind a copying machine.
24 MR. IERACE: As to the second bundle, that is the documents
25 disclosed on the 19th of September which the Defence thought were on the
1 exhibit list --
2 JUDGE ORIE: Yes.
3 MR. IERACE: -- We have done a check of those, and we could meet
4 after the conference this morning and give them, if they wish, some
5 examples so they can satisfy themselves that they have a problem. It is a
6 matter for the Defence to amend its exhibit list and by simply checking
7 whether they have indeed included those documents on the exhibit list. We
8 are happy to assist however we can, Mr. President.
9 JUDGE ORIE: What I expect the parties to do is to check whether
10 the, at least the examples indicated by the Prosecution, whether they
11 appear on the exhibit list. If they do not, and if the Prosecution is
12 able to demonstrate that they are not on the list, the Chamber expects a
13 revised list.
14 Then, the 130 documents not yet been disclosed, I think the
15 Chamber is not that much interested to hear about who, for what reasons
16 claims that they were disclosed and who contests that they were disclosed.
17 130 documents, could you give me an approximate number of pages? Are
18 these all one-page documents? I mean, are we talking about 13.000 pages
19 or 260 pages.
20 MR. IERACE: More like 260 pages, Mr. President, and we understand
21 mostly one or two-page documents.
22 JUDGE ORIE: I take it that 260 pages could be copied in
23 approximately one hour while further discussions on whether disclosed or
24 not might easily take two hours. So it will save you one hour for the
25 parties to -- and if not, I will call a meeting with the parties, ask them
1 to give me the 260 documents, ask them to wait for one hour, and I
2 will -- the Chamber will copy them so that the problem is solved. We are
3 here to solve the problems, rather to exploit them any further.
4 Any other comments specifically in relation to the specificity --
5 the no exhibits appearing on the list for next week while it has been
6 indicated that videotapes will be played although not tendered. But it is
7 not clear to the Prosecution what they can expect. Is there any comment
8 in that respect?
9 MS. PILIPOVIC: [Interpretation] Your Honour, as far as the
10 proposal of the Defence to show video material through one witness, and we
11 do not intend to tender this material, it is the second witness on the
12 list. I told to my colleagues that I have received this material when I
13 recently travelled to Banja Luka and I will do my best to turn it over to
14 my colleagues on the other side on Monday. I also said that it is a very
15 brief video material. There is no text, simply an illustration.
16 In our list, we also stated that we may use that video material in
17 case it is ready, and as far as the video material proposed to be shown
18 through the last witness on the list, that video material has been
19 disclosed to the Prosecution. We also have an audio transcript of that
20 material, and I told the Prosecution that I will turn over to them
21 tomorrow the tape, together with the transcript. In view of the fact that
22 tomorrow is Friday we believe that one-week deadline was complied with
23 because that witness is the last witness on our list.
24 And again, regarding that witness who is the last witness on our
25 list there is a dilemma whether he will be able to come here on Tuesday,
1 because he has some health problems but at any rate, we will disclose that
2 videotape on -- on Tuesday, we will disclose that tape, on Tuesday. So I
3 believe that my colleagues will be able to prepare adequately. Thank you.
4 JUDGE ORIE: Is Mr. Piletta-Zanin disappearing just for private
5 reasons or is there any specific --
6 MS. PILIPOVIC: [Interpretation] Just for a second. Just for a
7 second. He offers his apologies.
8 JUDGE ORIE: You said that you recently received a videotape with
9 no text, and you would use only a small portion of it, and you would
10 disclose it to the Prosecution next Monday. Could that not be done a bit
11 quicker? I mean, it is just copying a small portion of a videotape, just
12 pictures, as far as I understand.
13 MS. PILIPOVIC: [Interpretation] Your Honour, I will have the tape
14 on Saturday morning.
15 JUDGE ORIE: Yes, you only receive it on Saturday morning. Okay.
16 I cannot force you to copy a tape which is not in your possession. This,
17 of course, indicating material arrived late does not automatically entail
18 that finally it will be, the material will be accepted, if it would be
19 tendered, or even if it would just be played, if the Prosecution has had
20 no opportunity to look at it. So accepting it at this very moment, not
21 the Chamber, of course, is not in a position to say that you have to copy
22 a videotape which you have not in your hands yet, but this cannot be
23 understood as a decision on whether you could use it. That is an entirely
24 different matter. So we will look at the material, and we will hear the
25 objections. If the disclosure, in the view of the Prosecution, has been
1 too late, and we will then consider that matter.
2 The Chamber is a bit concerned about the late submission of
4 MS. PILIPOVIC: [Interpretation] Thank you, your Honour.
5 Your Honour, I have just arrived last night, and the tape I received on
6 Saturday of Banja Luka is one and a half hour long, however, I left the
7 tape there so some technical issues can be solved because I just need one
8 small detail from the whole tape, and this is why I will not receive the
9 tape before Saturday. So there was a technical reason behind this and
10 behind the fact that we took this course. I expect that I will be able to
11 turn the tape over on Saturday to the other side.
12 I also wish to say that in case there is a problem, I will inform
13 my colleagues that we were unable to prepare this video material.
14 JUDGE ORIE: Yes. Is there anything else to be said about the
15 present stage of the disclosure? The Chamber heard the concerns. We
16 cannot solve all the problems right away, but one of the problems, I mean
17 the 260 pages is certainly an issue which can be solved and not spent time
18 on it again arguing on whether one party could blame the other, or the
19 other the one for being not specific enough on its lists, or not having
20 copied it in time. The Chamber wants this problem to be solved. If not,
21 I will do it myself.
23 MS. PILIPOVIC: [Interpretation] Your Honour, I would like to say
24 that during the disclosure proceedings when Defence was disclosing
25 material, we never once received any single complaint from the
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 Prosecution, complaining that there was a discrepancy between the list and
2 the materials provided. And I am very surprised that now, at the very end
3 of this disclosing procedure, and just before the beginning of the Defence
4 case, this has been brought up. I will try to inform my colleagues today
5 as to whether we do have these documents and whether we are able to have
6 them copied. But as I said, we have never received any complaints from
7 them before. We are talking about 260 pages, not about a page or two. So
8 this is why we are surprised that this has been brought up just now.
9 JUDGE ORIE: It is my understanding, but if I am wrong,
10 Mr. Ierace, please tell me, is that one of the reasons there was no
11 complaints is that the list was not specific enough so that the
12 Prosecution could not identify at the very moment that documents were
14 MR. IERACE: With the exception of disclosure of April 2001, there
15 were no lists. There were simply a few sentences inviting the Prosecution
16 to agree that they had received bundles of documents relating to certain
17 topics. Therefore, we are only aware of the issues when we have before us
18 the exhibit list and we check that we do not have copies of those
19 documents. Thank you.
20 JUDGE ORIE: Yes. So the understanding of what the reasons were
21 for the Prosecution that they could not identify this problem at an
22 earlier stage seems to be correct. This problem should be solved.
23 Now, we move to another issue. Is there any progress made in
24 respect of the authenticity of potential exhibits? Has the Prosecution
25 checked whether the Defence could expect any complaints about authenticity
1 or not?
2 MR. IERACE: Mr. President, I raise that issue at the meeting
3 yesterday, and in summary, I pointed out that it was of no use to the
4 Prosecution to go to the repository in Banja Luka since it is apparent
5 from those letters from those authorities that much of their documents
6 they have received from the Defence. So seeing the same documents there
7 and indeed which they have copied to us, to both sides, does nothing to
8 establish the authenticity of the documents. I have also pointed out that
9 it seems from the 65 ter summary of the proposed Defence witnesses, that
10 they are not calling any evidence to establish the authenticity of the
11 documents they seek to tender. Finally, I pointed out that unless we have
12 information from them as to where these documents were located with
13 precision, not just across Republika Srpska, but rather places and
14 individuals and we have an opportunity to speak to them in order to
15 establish how they came into their possession and so on, we cannot concede
16 the authenticity of these documents.
17 I should make clear that when I refer broadly to "documents" I am
18 referring to documents which purport on their face to be official
19 documents issued within the Sarajevo Romanija Corps. I don't make any
20 complaint in relation to newspaper articles. As far as the videos go,
21 video tends to speak for itself to a certain point. Once we have more
22 information about the videos, such as translations and so on, I will be
23 able to say something more sensible about that. Thank you.
24 JUDGE ORIE: Yes. May I ask comment from the Defence? It is my
25 recollection that Defence repeatedly stressed that testimony about the
1 source of the documents would not be enough, but even the originals would
2 have to be presented. There are several rulings of the Chamber that that
3 was not necessary. But could the Defence inform the Chamber about how
4 they would deal with specifically the source of the documents as far as we
5 understand retrieved by the Defence itself, and then handed over to
6 the -- to some archives in Banja Luka? Is it true that there are
7 no -- there will be no evidence presented on the source of these
8 documents? Could you inform the Chamber about how the Defence intends to
9 deal with that authenticity issue?
10 MS. PILIPOVIC: [Interpretation] Your Honour, during this trial, I
11 noted on several occasions that the documents found by the Defence
12 investigators in different locations, and I also informed the Trial
13 Chamber that the Sarajevo Romanija Corps had been disbanded and in the
14 areas where there were military facilities, the barracks in Nevesinje and
15 so on, our investigators found in these locations documents pertaining to
16 Sarajevo Romanija Corps. And the original of these documents were
17 submitted to the archives of the Main Staff of the Army of Republika
18 Srpska. So we disclosed the copies of these documents to the Prosecution.
19 And yesterday was the first time when my learned colleague brought
20 up the authenticity of these documents and how we were going to prove it.
21 All I can say is that some of these documents have already been admitted
22 into evidence through Prosecution witnesses. And at that point, my
23 learned friends had no objections to the authenticity. These -- the
24 documents that are, in fact, reports of the corps from December 1992. I
25 don't want to go now into explaining through which witnesses these
1 documents were tendered and then later admitted, but if this presents a
2 problem then the Defence is prepared to have our investigators confirm the
3 authenticity of these documents before the Trial Chamber.
4 JUDGE ORIE: Yes, Mr. Ierace.
5 MR. IERACE: Mr. President, perhaps it will save some time if I
6 can simply illustrate the problem. In the Prosecution case, the Defence,
7 from time to time, complained about the reliability of some medical
9 JUDGE ORIE: Yes.
10 MR. IERACE: The Prosecution called evidence in relation to the
11 reliability and authenticity of those medical reports, but more to the
12 point, the Prosecution made it clear where those -- through the evidence,
13 where the documents could be located in Sarajevo. It was always open to
14 the Defence if they wished to go to the hospitals, to go to the storing,
15 the storage authorities in Sarajevo to locate and view whatever other
16 records there were. In the same sense, in the same way, what the
17 Prosecution specifically seeks are the details of those individuals, the
18 barracks, the officers, who provided these documents, who handed them
19 over, some informations to when they were handed over so that the
20 Prosecution investigators can go to these people, speak to them, and make
21 their own inquiries in order to work out if these documents can indeed be
22 relied upon. How were they stored over the last six or seven or eight
23 years and so on. That is what we seek. Thank you.
24 JUDGE ORIE: So there are two issues, as a matter of fact. The
25 first issue is whether the copies presented to the Prosecution are copies
1 of the documents at this moment in the archives or stored wherever. That
2 is the same issue as we had in respect of the medical records that have
3 been presented by the Prosecution. That is, if one of the parties would
4 check and compare these documents with the copies they received, that they
5 know where to find them. The second issue is a totally different issue,
6 and that is, who created them, who kept them for quite some time, when
7 they were received, by whom they were received, given by what authority or
8 what individual to the investigator.
9 Wouldn't it be appropriate that since the presence at this moment
10 of these documents in Banja Luka seems not to be the major problem, but
11 that the Prosecution is, as far as authenticity is concerned, mainly
12 focussing on where they came from, when they were produced, received by
13 whom. And since the Defence indicates that they have been retrieved by
14 their investigators, that, for example, a 92 bis statement perhaps would
15 be a good start to get information on the authenticity in this respect.
16 And then, of course, the next step might be that even the investigator in
17 the 92 bis statement says that he received them at the 30th of July in
18 1998 from Mr. X or Mr. Y. That is always an opportunity that if there is
19 serious doubt as to the authenticity, that then perhaps the source of
20 these documents could be, either by testimony or by written statements,
21 could give further information as to the creation of these documents, et
23 So it is suggested, in order to prevent any long authenticity
24 debates, that the Defence prepares, perhaps by 92 bis statements, and
25 perhaps also the Prosecution could communicate with the Defence what
1 exactly they would like to know in order to be satisfied that the
2 documents are authentic. I mean it's of no use to seek a 92 bis statement
3 just containing 80 per cent of the information the other party thinks
4 would be necessary. So the concerns about authenticity or source of the
5 documents could be communicated to the parties so we will not lose any
6 time on incomplete information at a later stage.
7 MR. IERACE: Mr. President, I fear that this may become an issue
8 where there is much swapping of information, but not to an extent that
9 allows the Prosecution to make its inquiries. If the Defence was prepared
10 to make their investigators available to the Prosecution investigators so
11 they could sit down and talk --
12 JUDGE ORIE: Yes.
13 MR. IERACE: -- We would be happy to do it in that informal way.
14 The ultimate concern is simply we need enough information to find out
15 where they came from so we can go there and speak to whoever handed them
16 over. And that might be the fastest and simplest way of doing it.
17 JUDGE ORIE: That is even most, perhaps the most efficient way.
18 Would the Defence be prepared to let their investigators give, in an
19 informal way, the information the investigators of the Prosecution --
20 Prosecutor would need in order to verify the sources of these documentary
22 MS. PILIPOVIC: [Interpretation] Your Honour, I will try to get in
23 touch with my investigators as soon as possible. I just wish to
24 underscore they only have one investigator, because the second
25 investigator who was also on the case, he has just been engaged as the
1 main Defence counsel before this Tribunal in another case. So this will
2 leave me with one.
3 JUDGE ORIE: Yes, but I think if he was your investigator at that
4 time, he could provide the investigators of the Prosecution with the
5 information. But I do understand you say I have to be in touch with the
6 investigators, but of course the investigators are assisting the --
7 MS. PILIPOVIC: [Interpretation] Yes, your Honour.
8 JUDGE ORIE: -- Assisting of the counsel. So I take it the
9 Defence counsel will such give a positive response as a matter of
10 principle to the suggestion of the Prosecution.
11 MS. PILIPOVIC: [Interpretation] Yes, your Honour.
12 JUDGE ORIE: Yes. That was the issue of the authenticity of
13 potential exhibits. The Chamber would very much like to be informed about
14 the progress made in this respect.
15 Next issue, points of agreement. At the Status Conference, we,
16 unfortunately, had to establish that in the attempts made already quite
17 some time ago before the Prosecutions case started finally never succeeded
18 in a longer list of -- and only a very short list. Has any progress been
19 made whether it be on confrontation lines or whatever or the beginning of
20 the conflict or -- so that we could save time and not hear any evidence on
21 facts that are, between the parties, not contested.
22 MR. IERACE: Mr. President, I raised this issue yesterday and the
23 Defence indicated that they preferred to wait until the decision on the
24 application under Rule 98 bis was handed down. With that in mind, we
25 agreed to meet tomorrow afternoon.
1 JUDGE ORIE: Yes.
2 MR. IERACE: Early afternoon, to discuss the matter further. As
3 to the appropriate process, I propose that since the Prosecution had now
4 presented its case, the Defence could perhaps indicate what in the
5 Prosecution case they didn't dispute and we could do it that way. It
6 would be difficult for the Prosecution to make specific proposals as to
7 what might not be contentious. The issue also of, perhaps, the
8 involvement of an officer of the Trial Chamber or a Judge was also
9 discussed in a preliminary fashion. Thank you.
10 JUDGE ORIE: Yes. Perhaps sometimes the presence of a third
11 person would -- could promote progress to be made by the parties. This,
12 perhaps, is also the point where I should express the regret of the
13 Chamber that where we intended to have the decision on the 98 bis motion
14 to be filed yesterday, that unfortunately we were not able to do it. We
15 expect it to be filed today, so that the parties could continue their
16 efforts with a better understanding of what the present position is.
17 Then the next issue would be the translation of documents. We
18 heard that approximately 50 per cent of the documents were translated,
19 that there were still some concerns. Is there any new information in
20 respect of translation of documents to be tender said?
21 MR. IERACE: Only from the Prosecution end that in the letter
22 dated the 24th of September, the Defence have indicated they do not need
23 the assistance of the Prosecution to translate documents to be tendered at
24 this stage.
25 JUDGE ORIE: At this stage. So I expect that there will be no
1 problems that would prevent us from continuing at this stage. Yes.
2 One of the other issues would be the application of Rule 84. The
3 Chamber is not yet informed about whether we could expect a statement,
4 because no opening statement has been made by the Defence at the beginning
5 of the trial, whether the Chamber could expect a statement being made
6 before the presentation of the Defence evidence?
7 MR. PILETTA-ZANIN: [Interpretation] Mr. President, before
8 Ms. Pilipovic gives you the answer to this question, perhaps this is just
9 in relation to the translations. We see that it is a little late, and
10 that there could be some problems in a sense that some of the annexes that
11 were supporting material for the expert reports, some of them are in
12 Russian, which is the case of one report. Then some of them are in
13 Serbian-Croatian or other languages. And these documents are just
14 annexes. These are supporting documents and they haven't been translated.
15 These are the problems that we could have, and I thought I would just
16 bring it up in case it is important.
17 And in relation to the question in relation to Rule 84, there will
18 be certainly an opening statement by the Defence. Thank you.
19 JUDGE ORIE: Could you give us an indication on how much time that
20 statement would approximately take?
21 MS. PILIPOVIC: [Interpretation] Your Honour, I spoke to my learned
22 colleagues and also had a question by them, and our answer was that we
23 will -- we will speak -- we will make our opening statement for two and a
24 half hours, maximum. I also informed my colleagues that Defence will be
25 using some maps and some video material that we will hand over to our
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 colleagues in due course and also I got in touch with the translation
2 service, and I believe that on Monday if we start in the afternoon, I will
3 be able to provide the interpreters with the opening statement.
4 JUDGE ORIE: Yes. You mean the written version of the opening
5 statement so that they have it?
6 MS. PILIPOVIC: [Interpretation] Yes, yes.
7 JUDGE ORIE: Thank you for this information, Ms. Pilipovic. The
8 annexes, sometimes annexes take five times the volume of a report;
9 sometimes the report takes five times the volume of the annexes. Could
10 you give us some indication on what -- are they smaller annexes or are
11 these huge annexes?
12 MR. PILETTA-ZANIN: [Interpretation] Mr. President, this is a very
13 reasonable amount of pages that I am talking about.
14 JUDGE ORIE: Yes, what is reasonable, what is not reasonable is I
15 think to be --
16 MR. PILETTA-ZANIN: [Interpretation] I hope that it will be
17 reasonable for the Chamber. We are not talking about a large amount of
18 additional material.
19 JUDGE ORIE: Yes. These annexes, I am expecting that they will
20 have titles. I think one of the first things that could be done is that
21 the titles, if they are not yet translated and the report itself, that at
22 least the Prosecution knows what these annexes are about, or does that
23 become clear from the report?
24 MS. PILIPOVIC: [Interpretation] Your Honour, the annexes will be
25 part of the expert reports.
1 JUDGE ORIE: Yes, but what I would like to know, that if there are
2 annexes, sometimes it becomes clear from the report what the annexes are
3 about. Sometimes they are just annexes and you have to guess what the
4 relation of the annexes to the report is. Is it clear from the reports
5 what the annexes contain or what is their content, what is their meaning
6 in relation to the report?
7 MS. PILIPOVIC: [Interpretation] Your Honour, newspaper articles
8 that my colleague spoke about, and they will be used within the report by
9 one of our experts. These are newspapers that are pointing to the content
10 of the report. So these are newspaper articles that the expert uses to
11 write his report. The only problem is, is that there are about 20
12 newspaper articles. They have -- they are not in English, that is, they
13 are not in a language that would help my colleague to read the newspaper
14 articles. So this is -- this was underlined in our talks as the problem
15 of translation, yes.
16 JUDGE ORIE: Well, of course, that these annexes are newspaper
17 articles is new to the Chamber. We had no idea. I know that most
18 newspaper articles are not 50 or 60 pages, but usually just shorter text.
19 Is there any other issue concerning translation that needs attention at
20 this moment?
21 If not, and having dealt with Rule 84, perhaps we come to the --
22 MR. IERACE: Mr. President --
23 JUDGE ORIE: Yes.
24 MR. IERACE: -- Before we leave the issue of translation, there is
25 a related issue. In relation to the parts of the books that are to be
1 tendered, and, therefore, the translations of those parts, when I inquired
2 yesterday as to progress on that, and that fell within the ten-day time
3 limit that you set on the 20th of September, I was simply informed that
4 there was no progress, and there was no suggestion of any date by which
5 that would be accomplished, and of course, an even more primary issue is
6 that we have only received four of the six books. Could I suggest in
7 relation to the remaining two books if the Defence remains of the view
8 that they have given us six books, perhaps they could indicate within say
9 by Monday, the dates on which they say they gave us the books, and also
10 the titles. I certainly recollect the Defence handing to me personally
11 four books on one occasion and not six. Secondly, I think there needs to
12 be a time limit by which the relevant parts of the six books are
13 communicated to us. Thank you.
14 JUDGE ORIE: Ms. Pilipovic, could you please respond to that
16 MS. PILIPOVIC: [Interpretation] Your Honour, the Defence will, in
17 any case, give these answers to our colleagues in relation to the books by
18 Monday. My reports that I have say that six books have so far been
19 disclosed to the colleagues. I will check this. As far as the
20 translations are concerned from the books that we intend to use, the
21 Defence will do what they -- in accordance with the order of the Chamber,
22 so that every part from the book will be handed over to the colleagues
23 seven days before the witness, unless, of course, my learned colleagues
24 wish to have these parts well before, and I will do my best to hand them
25 over before.
1 JUDGE ORIE: Yes. Let that be clear that the general rule that
2 disclosure should be complete and that only in cases of urgency that
3 disclosure should not be later than seven days before and the indication
4 of what documents will be tendered should not be later than seven days
5 before. But the seven days' rule is not the general rule on disclosure,
6 it is just the exception.
7 Then the Chamber would not like to be confronted again with any
8 discussions on four or six books. It should be clear at this moment that
9 all parts of the six books indicated should be in the hands of the
10 Prosecution. If they are not, let's not spend time on lengthy discussions
11 on whether they should be there or not, but let's, if necessary, copy
12 again the relevant pages so that we can proceed.
13 MR. IERACE: Mr. President, just before we leave that --
14 JUDGE ORIE: Yes.
15 MR. IERACE: -- Do I understand it, we don't even have the titles
16 of the six books which makes it very difficult for us to find out what
17 we -- what we should have, and that is apparent from the first provisional
18 list. It simply says, passages from six books regarding relevant events
19 from war in Bosnia. So if not --
20 JUDGE ORIE: I can't imagine that this way of presenting your
21 material could create quite some confusion. Could you give us the titles
22 of the books, Ms. Pilipovic?
23 MS. PILIPOVIC: [Interpretation] Your Honour, the first book, one
24 of the first books, is "The Suffering of Serbs in Sarajevo" and this book
25 is both in Serbian and in English. And this was disclosed by the Defence.
1 The second book, and I think two books are by Mr. Stjepan Siber that we
2 already used, one book is by Mr. Kerim Lucarevic and I think that one book
3 is by Sir Michael Rose, which is also available in English, and I think at
4 the moment, we have five books here. I will check if there are any more
6 JUDGE ORIE: Yes. I hope that you understand that if there is any
7 discussion about four or six books and that when asked, you come to five,
8 I know that it is the average between four and six. But it is not very
9 precise. It is also not clear to me whether, for example, you would count
10 the book on the suffering of the Serbs in Sarajevo, your B/C/S version is
11 one book and the English translation is another book; or whether that is
12 one book of which two versions exist?
13 MS. PILIPOVIC: [Interpretation] One book. It is one book,
14 Your Honour.
15 JUDGE ORIE: Yes. Then you might even be short of two books at
16 this very moment. But, I mean, you know what books you want to use,
17 whether there are four or six or seven or three or five, let's make sure
18 that the relevant parts of the books that you are going to use are within
19 36 hours in the hands of the Prosecution. Perhaps first check the
20 Prosecution could tell you what books they have in their entirety then
21 they might tell you whether they know what the passages are, whether they
22 are aware of the passages you would like to use, and then whatever is
23 missing, you try to find the books or at least the passages you want to
24 rely upon so that we can proceed.
25 MS. PILIPOVIC: [Interpretation] Your Honour, I expect that we will
1 resolve this problem in the course of the day.
2 JUDGE ORIE: Okay, that's even quicker than 36 hours. Thank you
3 for that.
4 Then, is there any other translation or it was both the
5 translation and the disclosure issue, as a matter of fact, to be discussed
6 at this very moment?
7 May I also ask you, Ms. Pilipovic, in respect of next week, before
8 we come to the list of witnesses, whether the, I would say the logistics
9 of the witnesses are causing any problems as far as next week is
10 concerned? I mean transportation well whatever, problem from home, up
11 until arrival in The Hague and appearance in this court?
12 MS. PILIPOVIC: [Interpretation] Your Honour, as far as I know, the
13 cooperation between the representatives of the Defence and the VWU is
14 satisfactory, and as far as I have been informed, there have been no
15 problems arising from the witnesses who should arrive in The Hague next
16 week. The only thing is that the last witness who had a visa, received a
17 visa is at a conference so he is not sure whether he will be arriving on
18 Tuesday or Thursday. Also, I was informed that there was a list of the
19 witnesses that was submitted for next week, so that will be a week
20 following or starting the 12th, or after the 12th. So for the time being
21 the Defence has no technical problems, so to speak, regarding the arrival
22 of witnesses.
23 JUDGE ORIE: Yes. Then next issue, we received a motion for
24 protective measures in which quite separate issues are dealt with. I am
25 not going into any detail at this moment in open session. Part of the
1 motion deals also with videolink, which, of course, is not a protective
2 measure as such or problems like, say, of conducts of witnesses which is
3 not a protective measure. Did I understand well, Mr. Ierace, that a
4 response has been filed or will be filed yesterday or today so that the
5 Chamber can consider the matter?
6 MR. IERACE: Mr. President, that will be filed today. I note that
7 there is an issue in respect of the first and second witnesses to be
8 called and all the more reason why we should file it today.
9 JUDGE ORIE: Yes. So that -- did we receive the witness list for
10 the first week? Did we receive copies? I haven't seen any and
11 Ms. Pilipovic usually, if the Prosecution did send you their list of
12 witnesses with the exhibits to be used, copies would be sent -- we have
13 received them? Yes. We have not seen them, but we have received them.
14 It seems that those assisting us have finished -- perhaps we might pay --
15 we might have to pay a bit more attention to the procedure of that so that
16 we are informed at the earliest stage about the order of appearance of
18 Then we have the witness, list of witnesses.
19 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I know very
20 well that we shouldn't speak about this subject in detail, except in
21 closed session, but the Defence would like to underline a point which is
22 important. The principle, speaking about protective measures, in fact,
23 and I think that we have to state this clearly, for many witnesses and in
24 fact for all of them for whom we have asked these measures, Defence is in
25 a difficult situation. We don't have any other choice but to do this
1 because these witnesses said, "if we are not guaranteed a protection when
2 we come back from testifying, we will not come and testify."
3 So this is a safe conduct issue and I am talking about the
4 globality of the issue. I am not talking about in details. This is a
5 general problem which applies to all of these witnesses who are in the
6 same predicament.
7 JUDGE ORIE: Yes. I think we are not -- we could not deal with it
8 in a specific way, but there are some general questions.
9 First of all, the Defence has indicated that there is a specific
10 fear for travelling through the BiH territory because of violations of
11 rules of the road agreements. There were no further details given in that
12 respect. It was a very general allegation. That is one issue of which
13 the Chamber might like to be -- to receive more specific information. And
14 then perhaps I have to address the Prosecution and the Defence at the same
15 time. The Chamber has never inquired in further detail about the -- about
16 the travelling of witnesses. Is my understanding right that most of the
17 witnesses would fly from Sarajevo to Amsterdam? Because the Chamber would
18 like to know what territories we are talking about. I mean, if you say,
19 "No, the usual way of travelling is we first go to Budapest and then
20 Prague, and then we arrive in Amsterdam." Then, of course, it's a totally
21 different issue. One of the things the Trial Chamber noticed is that
22 there seems to be special concern about the temporary presence on the BiH
23 territory. One of the issues that has been raised is the presence on Dutch
24 territory. As far as the last issue is concerned, I might advise the
25 parties to consult the host agreement which deals with the safe witnesses
1 on Dutch territory, so no specific orders there are necessary, because
2 that is in the host agreement between the Tribunal and the Kingdom of the
3 Netherlands. So we would like to know exactly where the problem is as far
4 as safe conduct. Are we just talking about travelling from Republika
5 Srpska to Sarajevo airport or are we -- it is not clear from the
6 submissions made until now. So it is also very difficult to give
7 decisions in that respect.
8 And, of course, I do not know whether the travelling schedules of
9 the Defence witnesses will be the same as for the Prosecution witnesses.
10 So the Chamber would like to be informed in more detail about that.
11 Another issue that has been noticed by the Chamber is that, in
12 most cases I would say, the protective measures sought are pseudonym and
13 facial distortion. I would say this is the great majority. If the
14 Prosecution files its response today, could the Chamber expect to have
15 major objections to these type of protective measures sought? Or could we
16 expect to have, well, let's say in 80 per cent of the case, say no
17 objections against the facial distortion and pseudonym?
18 MR. IERACE: Yes, Mr. President. It is the latter. In other
19 words we -- essentially the thrust of the submission will be not against
20 the type of protective measures sought but the extent of the witness list
21 to which that protective measure is sought to apply.
22 JUDGE ORIE: Yes. I do understand that you say there are very
23 many witnesses that are seeking protective measures. Then in general
24 terms, the list of witnesses, we have now a list announcing 186 hours and
25 it may have been clear to the Defence that the real bottom line would be
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 170 hours. Could the Chamber first receive an explanation for this
2 difference. Even if it is only 10 per cent, it is 10 per cent.
3 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. I think
4 that the Defence has tried very hard to respect what you call the "real
5 bottom line." But the Defence cannot do more than what it can, and the
6 Defence has tried to make it as concise as possible, and we are trying to
7 make more efforts as we go along, as the case is developing. But as we
8 are presenting our case. But we cannot do more before we know what your
9 decision would be as to limiting the time. And this is quite close to
10 what you have already announced. And the Defence still believes that the
11 Prosecution took many more hours than the 196 hours announced, and I think
12 that we do not think that the equality is as good as we could have
13 expected it.
14 JUDGE ORIE: Yes. It is of no use to repeat what you said before,
15 is that in your view, the Prosecution took more time. I mean, this is not
16 a discussion where "yes or no" are really contributing to the solution of
17 a problem. The Chamber will consider whether it will give the Defence
18 access to their calculations. Until now, apart from your observation,
19 that it was more than the 170 or hours, no reasons are given why you think
20 it is more, so that is not a very useful discussion at this very moment.
21 MR. PILETTA-ZANIN: [Interpretation] Mr. President --
22 JUDGE ORIE: Yes.
23 MR. PILETTA-ZANIN: [Interpretation] -- If you wish me to give the
24 exact reasons why we think that there should be more, we can give you
25 these reasons, but it will take time. Of course, I can do it very
1 briefly. We can think -- we can tell you what we think we will get from
2 each witness.
3 JUDGE ORIE: Yes. But let's be short. We have two issues, first,
4 whether the Prosecution took more time than Chamber indicated, that was
5 what you said, that in your view, the Prosecution took more time. Now you
6 are touching upon a different subject, and that subject is why the Defence
7 would need more time.
8 The Chamber will consider, we will give you an opportunity to
9 defend that and I am not going to make any comments on this at this very
10 moment. If you look at the statistics of the Tribunal, if you look at
11 your list of witnesses, and especially the issues they are dealing with,
12 you would rather expect, but we haven't heard your argument yet, that the
13 presentation of Defence case, as in almost all cases, would take less
14 time. But we will first consider whether we will give you an opportunity
15 to argue on why you would need more hours, but as it stands at this
16 moment, is that you are bound by the number of hours really as a bottom
17 line of the time taken by the Prosecution.
18 Then we have some complaints but the specificity of the summaries
19 of the witnesses and the relevance of the witness statements. We have
20 seen submissions by the Prosecution. We have seen response by the
21 Defence, also dealing with the issue of tu quoque and reprisals and the
22 establishment of what were military targets. Let me just try to identify
23 what the main problems are.
24 I think one of the first issues is that the Prosecution seem to be
25 a bit concerned about the changes in lists, if we would compare the first
1 provisional list of the 2nd of August, and then the other list of the 19th
2 of September, that the Prosecution might not have been concerned that much
3 about the witnesses that disappeared from the list, but perhaps also about
4 the new witnesses that appeared on that list.
5 So that is the, I would say, the consistency of the list, if the
6 list would be changed too frequently, that would, of course, give major
7 problems to the Prosecutor -- Prosecution to prepare for
8 cross-examination. Then I see that the Prosecution, and that has been
9 dealt with also in your response, is complaining about the relevance in
10 respect of a tu quoque and your response to that. One of the other issues
11 is that the testimony would deal with well-established matters. One of
12 the complaints of the Prosecution is that the witnesses were only or were
13 at least in Sarajevo prior to the time of the conflict, and, therefore,
14 are not very relevant.
15 The Chamber has some difficulties in predicting the relevance of
16 the testimony. That is also because of the witness summaries provided
17 until now. If I may just go through a few examples in order to explain
18 what our concerns are, if I would look, for example to number 34 on your
19 list the subject matter of the testimony is that -- perhaps I -- the
20 witness is a resident of Pofalici. He'll testify about the attack of
21 Muslim forces against Pofalici and about expelling of Serbs from Pofalici.
22 This leave a lot to guess about the relevance. The Chamber is not in a
23 position to say it is irrelevant, but at least the connection with the
24 indictment is at least not clear.
25 So, therefore, it is very difficult and would have similar
1 problem, for example, with, just to draw your attention to number 47 or
2 number 48, without going in any details. They are very short and their
3 relevance does not become clear.
4 That is also the reason why the Chamber has asked to provide the
5 witness list in specific categories. Perhaps it has not become entirely
6 clear, but the Chamber wanted to have the issues on which the witnesses
7 were -- would testify. I would say, more or less, according to the
8 initial list. Now we see that the last list is very much of witnesses
9 effect, of expert witnesses. That gives no further information. The
10 Chamber also asked to put those witnesses in order of priority. That
11 means, the most important witness at the top, the next one down, and the
12 less important witness at the bottom. And it will be no surprise for the
13 Defence that the reason the Chamber asks for this to be done, is that we
14 could, while hearing the testimony, going from the top of the list to the
15 bottom that the Chamber could at a certain moment either establish that
16 every new witness comes up with new important relevant material, that
17 would be a reason to go as far as down, as that would change, if at a
18 certain moment the evidence would become repetitious, irrelevant. Then,
19 of course, the Chamber might consider that it has heard enough evidence on
20 the issue at stake.
21 On the basis of the summaries given until now, it is also very
22 difficult for the Chamber to give a final number of hours available to the
23 Defence. As I told you before, the bottom line would be 170 hours, but
24 that might not be the final word in that respect. Presentation of
25 evidence is always under the control of the Chamber and, of course, we
1 will have to see how things develop. But perhaps at this moment, more
2 clear information should be provided, both for the Prosecution to prepare
3 for cross-examination, and for the Chamber to decide upon the relevance,
4 and, therefore, whether there would be any need to reduce the number of
6 These are some general observations the Chamber would like to
7 make. Perhaps we will have a break and then give the parties an
8 opportunity to add whatever they want to add, what their response will be
9 on these issues. And I might already suggest to the Defence that, of
10 course, 92 bis could certainly help us to reduce the time needed to hear
11 the evidence, and, of course, I do understand that you will deal with that
12 at a later stage this week, compromising upon certain facts, of course,
13 will reduce the need to hear evidence on these facts considerably as well.
14 We will adjourn until 11.00, but I will first give the parties the
15 opportunity to see whether there are any other issues on the agenda they
16 would like to discuss after the break.
17 Are there any subjects, apart from those we touched upon already?
18 MR. IERACE: No, Mr. President.
19 MR. PILETTA-ZANIN: [Interpretation] No.
20 JUDGE ORIE: Then we will consider during the break whether we
21 would have any additional agenda points. So we will adjourn until 11.00,
22 and then the first thing I will do is to give the parties the opportunity
23 to reply to the witness list, relevant time, et cetera.
24 --- Recess taken at 10.30 a.m.
25 --- On resuming at 11.05 a.m.
1 JUDGE ORIE: Before we continue the -- before we continue to
2 discuss the list of witnesses and to give the parties an opportunity to
3 make their submissions, I first have a question to the Defence,
4 Ms. Pilipovic, Mr. Piletta-Zanin: The last list you provided to us, apart
5 from the categories not specifically dealing with issues, but rather broad
6 categories, such as witnesses of fact or expert witnesses, but on these
7 issues is this list already in priority order, that means the most
8 important one at the top, less important one at the bottom?
9 MS. PILIPOVIC: [Interpretation] Your Honour, the Defence handed
10 over the list of witnesses according to categories, which is what the
11 Trial Chamber wanted us to do.
12 JUDGE ORIE: But within each category?
13 MS. PILIPOVIC: [Interpretation] Yes, Your Honour.
14 JUDGE ORIE: It also means that this should guide you in the
15 calling of witnesses. I am not saying that you have to deal with one
16 category always, but you can't call one of the lower positioned witnesses
17 first and then the upper. So you have to -- I mean, if there are good
18 reasons you say we go to number four before we deal with number three,
19 that's fine. But in general terms, you should -- the calling order should
20 be in accordance from top to bottom.
21 Then, for both parties, the Chamber would like to receive
22 information about two issues by next Wednesday, and that is whether any
23 progress has been made in relation to the stipulated facts; and whether
24 any progress has been made by -- in respect of the investigators to meet
25 and to discuss the sources of the documents. If it would turn out by next
1 Wednesday that no considerable progress has been made, the parties should
2 prepare for a meeting, either with the SLO or with one of the Judges on
3 Thursday morning to see what progress can be made. So, please, take care
4 of that in filling your agendas.
5 Then, Mr. Piletta-Zanin, you will have an opportunity before I
6 give a final opportunity to the parties to make any further submissions on
7 the list of witnesses. You will first have an opportunity for, well,
8 let's say, ten minutes to explain why you might need or you will need more
9 time than the Prosecution took for the presentation of their case. So
10 perhaps we first hear that so that the Prosecution would also be in a
11 position to respond to that part, if making further submissions at a later
12 stage this morning.
13 Please proceed, Mr. Piletta-Zanin.
14 MR. PILETTA-ZANIN: [Interpretation] Do you want me to do it now,
15 Mr. President?
16 JUDGE ORIE: Yes, please.
17 MR. PILETTA-ZANIN: [Interpretation] It will be very brief. The
18 reason why we believe that this number of hours is necessary to us is
19 based on two elements. The first one was the assessment or the estimate
20 that we made, as accurately as we were able to, of what our witnesses will
21 be able to say. And the second of these elements is, of course, has to be
22 factored in the surprise effect because we know very well that what can
23 happen during cross-examination, a witness of one side can say a lot more
24 than what was expected, a lot less, or completely -- something completely
25 different. So this is a kind of strategic reserve that we need. It is a
1 kind of oxygen tank, so that we can make a balance with other witnesses,
2 also on important issues as important as shelling. As I told you already,
3 it is probable that during the case of the Prosecution -- case of the
4 Defence can be diminished as we -- so there shouldn't be any surprises
5 during cross-examinations, but this was one of the points.
6 Another point which seems even more important now is the need --
7 and here, Mr. President, I still don't have your decision in my hands. I
8 am just deducing. This is just by deduction that I am making, this is an
9 assumption that I am making these observations. Now, with regard to
10 shelling incidents, for one reason or another, you may have decided that
11 there was a campaign or at least that there are reasons to believe that
12 there was a campaign, which would then implicate that there was a will, an
13 intention to inflict terror on the population. Therefore, our witnesses
14 who are mostly soldiers, military personnel who were on the front lines,
15 it will be necessary for them to come and speak here before your Chamber.
16 Then each of the companies here did not have an order to fire at
17 such-and-such a target, allegedly civilian, but this is essential, that
18 each one of these soldiers will come and that they did know the number of
19 legitimate targets in the city, which will then give the appearance that
20 there was a random shelling or that it could have represented what we call
21 a campaign or that it was just an importance, that it can be interpreted
22 by a Chamber that it was -- there was intention to inflict terror on
23 civilian population.
24 Now these witnesses should then even be worked on more by the
25 Defence that is in relation to your decision, if I am assessing it
1 correctly. So if we ask them here, was there a military target, yes, and
2 so on and so on. So this is a little bit we still have some blind spots
3 because we don't know very well how this exercise is going to be carried
4 out. And perhaps we will have more insight as of next week. But this is
5 just the general outlines.
6 Another matter that you mentioned, we will try and save time. The
7 34, the Pofalici, now this considering that there was a very rough
8 presentation of facts, the Pofalici is going to be very important because
9 the witness is going to be able to say, what are the shellings that they
10 suffered, and this is not tu quoque, it is a different thing. He will be
11 able to say that equally, how many shellings occurred by error in the area
12 they were defending. These were technical errors that happened on one
13 side, so they happened on the other as well. It may happen that this
14 witness will come and say yes, these shellings did take place by mistake
15 on civilian areas and this is a mistake. So this is very important for us
16 to say that such-and-such a shelling that happened, happened -- also
17 happened by error. Am I to stop or should I --
18 JUDGE ORIE: [Interpretation] If you could just slow down, please.
19 MR. PILETTA-ZANIN: [Interpretation] I apologise. I had the
20 Serbian language -- I was listening to the Serbian language.
21 So that's it. I understood your gesture, Mr. President. I
22 interpreted that as an invitation for me to stop, but it wasn't, but
23 certainly I am going to stop here, because I think that we said enough,
24 and I hope that we were clear. Thank you.
25 JUDGE ORIE: Thank you, Mr. President. A bit surprising that
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 after the summer you stop even without being invited to, but then I
2 remember I wished you a relaxed summer at the 2nd of August.
3 Then I would like to give an opportunity to the Prosecution to
4 make any further submissions in respect of the list of witnesses, and then
5 finally given an opportunity to Defence to respond to that or to make
6 whatever further submissions they would like to make in this respect. And
7 if there would be nothing else on the agenda, we would then conclude this
8 pre-defence conference.
9 Please proceed, Mr. Ierace.
10 MR. IERACE: Thank you, Mr. President. I assume that you also
11 expect to hear from me within those ten minutes on the sufficiency of the
12 Rule 65 ter descriptions.
13 JUDGE ORIE: Yes, that is part of the -- part of the submissions
14 you made in writing before and I would like to give you -- although, I did
15 limit Mr. Piletta-Zanin to ten minutes, which he didn't even use, for the
16 specific reasons why the Defence made the reservations as far as the time
17 allocated to them was concerned. I would give a bit more time to both
18 parties to make further submissions, so if that would be a quarter of an
19 hour, 20 minutes, it would be no problem. So don't feel that much limited
20 making these further submissions. Please proceed.
21 MR. IERACE: Yes, Mr. President. In fact, I think I will be very
22 brief. The explanation just given by the Defence in relation to the
23 anticipated evidence of Witness 34 firstly, illustrates the insufficiency
24 of the summary of facts which appears alongside that person's name.
25 Secondly, raises further issues as to the nature of that evidence in terms
1 of its internal logic. Firstly, in respect of the description which was
2 filed, that is the summary of facts which was filed, on the basis of that
3 summary of facts, it is impossible, in my respectful submission, to elicit
4 from it anything of relevance to the case.
5 Using that as an example, the Prosecution is of the view that it
6 may well be that its cross-examination of witnesses called by the Defence
7 will be limited. The Prosecution does not intend to cross-examine for the
8 sake of using up the time it is allocated. Yesterday, I indicated to the
9 Defence that it should be ready to call its witnesses in quick succession
10 for that reason. By the same token when witnesses who, at least the
11 Prosecution regards as being of more substance and relevance, the
12 Prosecution would respectfully seek leave on some occasions to go beyond
13 the allocated time, that is, beyond the period of time which the Defence
14 takes in chief, with the overall objective of keeping well within the same
15 period of time that the Defence takes with its witnesses, examining them
16 in chief.
17 So, Mr. President, on the face of it it is difficult to conclude
18 otherwise, that is, on the face of the schedule of facts filed, it is
19 difficult to not conclude that the only possible significance of the
20 witness's evidence is one indeed of one of tu quoque. Mr. Piletta-Zanin
21 enlightens us with a further development of the written schedule of facts
22 to tell us that the witness will say that he was on the front line, as I
23 understand it, and that he observed Muslim forces, using the term used by
24 Mr. Piletta-Zanin, accidentally hit civilians when they intended to hit
25 legitimate targets. One wonders how a witness, in the position described
1 by Mr. Piletta-Zanin, could come to such conclusions. He goes on to
2 anticipate the witness's evidence to be in effect that, therefore, the
3 same applied to gunners within the SRK, that quite clearly, apparently,
4 where they hit civilian targets, it was because of some inbuilt factor of
6 This raises a new issue as to relevance which, no doubt, we will
7 face at the appropriate time when such evidence is sought to be elicited,
8 namely, on what basis, more specifically, on what proper basis, could a
9 witness give such evidence, but perhaps that should wait until a later
10 time. Thank you, Mr. President.
11 JUDGE ORIE: Thank you, Mr. Ierace.
12 May I just ask you one question: We discussed a few examples of
13 very brief witness summaries. Would you have any specific problem with
14 one of the witnesses that is on the list for the first week?
15 MR. IERACE: Yes, Mr. President. I think that is covered in the
16 motion filed in which I analyzed, to some extent, the summaries of fact,
17 and came to the view to illustrate the point that there were only five
18 witnesses who, on the strength of the summaries of fact, challenged the
19 Prosecution case. The summaries of fact identify issues, and no more.
20 Some of those issues seem to lack any relevance. Other issues clearly
21 could have relevance, but because the summaries don't specify the facts or
22 summarise the facts on which the witness will give evidence, it is
23 impossible to tell.
24 JUDGE ORIE: Yes. If I might interrupt you. Of course, the
25 Chamber has read this and of course we have also compared it a bit with
1 the Prosecution witnesses summaries, and it appears that sometimes they
2 are very much focussing on facts. For example, if you are talking about
3 sniping incidents or shelling incidents we find that a lot of what we can
4 expect from them as factual information is clearly indicated. Of course,
5 the Chamber also noticed that there are not many witnesses, as far as we
6 can see that will testify about the specific circumstances of specific
7 shelling or sniping incidents, although it is indicated that sometimes the
8 testimony might have some relevance in respect of these incidents as well.
9 On the other hand, we also see that as far as the Prosecution witnesses
10 are concerned, sometimes we also find issues, rather than facts. For
11 example, utility supply, you will tell us about utility supply without
12 giving us any further details and what facts we should expect, but just
13 about the general issue of shelling. I think that we should keep in mind
14 that sometimes the subject matter of the testimony might make it more
15 difficult to give specific facts. On the other hand, and I am now looking
16 in the direction of the Defence, sometimes the issues are very broad and
17 very general where further details. For example, if I am just -- if you
18 are talking about utilities and you add to it that it is water and
19 electricity, then already gas is off and water and electricity are
20 specifically mentioned, so even on the issues you can be more specific. I
21 think we have to keep both in mind when working on the summaries because I
22 think some work still has to be done, since it would be too difficult for
23 the Prosecution to prepare for cross-examination.
24 On the other hand, the Prosecution should bear in mind that some
25 issues make the more difficult to come up with specific facts than others,
1 as we noticed that similar approach could be found in the Prosecution
2 witness list summaries.
3 MR. IERACE: Mr. President, the latter point first, while it is so
4 that some of the Prosecution 65 ter summaries were broad in that sense,
5 equally, I think it could fairly be said that many of them, if not most of
6 them, were quite detailed. In relation to the witnesses who are to be
7 called next week, perhaps it would be useful to focus on the first two or
8 three. In respect of the first witness, there is a lengthy summary of
9 facts, one long paragraph, which gives some background to the witness,
10 which, in itself, doesn't appear to be particularly relevant. And then we
11 have statements such as this: "He is familiar with the role of JNA,"
12 moving on "he was an eyewitness of mutual shelling and sniping," which
13 really doesn't assist anyone as to what it is the witness will say. Will
14 he talk about the issues which are in the indictment? Namely who was
15 responsible for the shelling and sniping of civilians, or indeed more
16 basically, whether that happened or not, we don't know. In the same
17 sentence, "he was an eyewitness to forced mobilisation, taking people on
18 forced labor," what is the relevance of that? The Prosecution states that
19 that is not relevant to the issues in the indictment.
20 And then finally we have this all encompassing sentence: "The
21 witness also knows the other relevant events which happened during the
22 conflict when he was in Sarajevo." That is of no assistance to the
23 Prosecution in preparing its cross-examination. The second witness to be
24 called that is Witness number 5, I think yes, number 5. Again, we don't
25 know what it is in effect that she really will say. We are told that she
1 will take about ABiH actions from their positions against the Grbavica
2 area, about ABiH sniping. What does that mean, if I could pause there?
3 Does that mean sniping against Serb civilians, it is sniping against Serb
4 forces, that is armed combatants or what?
5 The third witness - excuse me - is Witness number 2. We are told
6 that he was at the Kosevo clinic in Sarajevo. "The witness is familiar
7 with the circumstances in Sarajevo as well as the circumstances in Kosevo
8 clinic, immediately before the conflicts broke out and during the war
9 too." Again, that is of no assistance. Is he to talk about mobile
10 mortars which are alleged? Is he to talk about ABiH forces allegedly
11 targeting the hospital? We don't know. Reading on: "He was an
12 eyewitness of shelling and sniping on the warring side." On the face of it
13 that's of absolutely no relevance. It is not clear whether it's lawful of
14 shelling or sniping, in other words, of combatants or not.
15 So, Mr. President, perhaps if the Defence might be requested to
16 provide proper summaries of fact in relation to the first three witnesses,
17 that would serve two purposes, firstly, giving proper notice to the
18 Prosecution, and secondly, it might assist as process in developing an
19 appropriate understanding with the Defence as to what is required.
20 Mr. President, could I just go back to one earlier issue, briefly,
21 and that is, that whatever shortcomings there were in the 65 ter summaries
22 of the Prosecution has to be seen in the context that the Prosecution were
23 provided with statements and also supplemental information sheets. And
24 they, of course, were not provided to the Trial Chamber, as is required,
25 but there is no dispute that witness statements, in some cases, many
1 witness statements, as well as a supplemental information sheet were
3 Thank you, Mr. President.
4 JUDGE ORIE: Yes, you mean that the Defence was provided with the
5 statements and the supplemental information sheet.
6 Ms. Pilipovic, I would like to hear the response from the Defence.
7 MR. PILETTA-ZANIN: [Interpretation] Mr. President, response in
8 relation to supplemental information of what Mr. Ierace spoke about more
9 generally --
10 JUDGE ORIE: [Previous translation continues]... to make on the
11 issue of the witness list and the complaints about it and related issues.
12 MR. PILETTA-ZANIN: [Interpretation] Very well. Mr. President, I
13 have to tell you that we are rather surprised and this is just in the
14 first three cases, even if we just talk about the first case. If we look
15 at this witness, we can see that there are elements here that are very far
16 from being irrelevant. We know what he was, we know what his duties were,
17 what he did, and to use the expression that the Prosecution used, when we
18 are talking about "mutual shelling," it is precisely here with the problem
19 lies. We are being told that this is irrelevant, and I believe, and again
20 I am walking on uncharted ground, and I have to do this because it is
21 still depending on what says in your decision, but this is where the crux
22 of the problem lies. If there were mutual shellings, were there also
23 errors? Were there risks of errors? Perhaps this witness could say that
24 there was shelling coming from the other side, that there was an error,
25 that this was mistaken, and I believe that this is a very useful element,
1 if not necessary, for the Defence to state our position, which is just to
2 remind you is that there were possible firing near civilian targets and
3 that there were errors, not voluntary, not intentional.
4 Now, if we have a list of every shelling from such-and-such a
5 date, such-and-such an hour, this is really impossible. This is not the
6 same as the position of the Prosecution, which decided to have five
7 shelling incidents, and then more for the other incidents, sniping
8 incidents. So, really, the position of the Defence is different. The
9 principles are different. We had the Defence of principle, basing
10 ourselves on very specific incidents, cases, but it is absolutely
11 impossible that we can say every time on such-and-such a date, there was a
12 shelling and so on. The witnesses couldn't possibly remember, and to ask
13 such a degree of accuracy, I don't think that is conceivable. So I think
14 here, for this very first case we have been sufficiently detailed,
15 sufficiently precise, and the Prosecution knows what this is about. So
16 that the principle of the Defence has clearly been established. And if it
17 has not been understood, I can explain it again.
18 It may happen that there are other witnesses whom there is more
19 information necessary. Now, less information. Now, for instance, we can
20 say for this specific witness we wouldn't like to know precisely
21 such-and-such things, and this is the witness in such a case where perhaps
22 that would be more useful for everyone and more constructive. So this is
23 what I wanted to say, in principle and generally speaking.
24 JUDGE ORIE: Yes. May I ask you, the parties, if the Defence is
25 about to establish that errors were made in targeting of shells, is that
1 in dispute between the parties? I mean does the Prosecution, in general
2 terms, because we are talking in general terms now and not on a specific
3 incident, contest that such errors are made?
4 MR. IERACE: That is not contested by the Prosecution, Mr.
6 JUDGE ORIE: Yes. Yes, Mr. Piletta-Zanin.
7 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I fear that
8 this will not take us forward. What we would like to know is what it says
9 in the decision, what you have said in the decision about this.
10 JUDGE ORIE: [Previous translation continues]... you will not find
11 anything in your decision about errors on targeting, any determination in
12 that respect of the Chamber.
13 MR. PILETTA-ZANIN: [Interpretation] Very well, Mr. President. But
14 I think that perhaps the Chamber spoke about the quantity of the firing
15 and perhaps about the outgoing and the incoming fire and the proportion
17 JUDGE ORIE: Perhaps this is not the very moment to discuss these
18 kind of matters. I would like as a matter of fact, to sit the parties
19 together in respect of the first witnesses, because we have to develop a
20 practice which is -- which enables the Prosecution to cross-examine the
21 witness effectively and not to be with empty hands and be taken by
22 surprise. So perhaps I would like to invite the parties to do this very
23 early at this very moment, even without having a written statement, that
24 perhaps questions like you have raised today, for example -- I would agree
25 with you that a part of the statement which says he was an eyewitness
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 between shelling and sniping between the warring sides, that of course,
2 could cover the whole armed conflict, without any further specification,
3 it might be very difficult for the Prosecution to respond -- to prepare
4 for cross-examination of such a witness.
5 So, therefore -- and the Chamber is also aware that the Defence,
6 of course had the witness statements given before and could confront the
7 witness with the earlier statements. So, therefore, I would like the
8 parties to see whether questions such as raised by the Prosecution today
9 could be resolved. If that is not possible, then I will take care that,
10 tomorrow, the Senior Legal Officer or one of the Judges will be there in
11 order to guide the parties as how to proceed in this respect. We can't
12 deal with that until next Thursday because the first witnesses will be
13 examined on from the 7th of October.
14 But the Chamber wants to prevent that we have to lose time later
15 on because the information was not sufficient to prepare for
16 cross-examination. So specifically for the first week, I would like the
17 parties to sit together and to see whether, even if it would be early,
18 additional information could be given so the Prosecution is better able to
19 prepare, if this would result in clashes rather than in fruitful
20 cooperation, than the Chamber is available to assist the parties.
21 MR. IERACE: Mr. President, just so I clearly understand that, you
22 anticipate that the parties should meet today, and if we can't --
23 JUDGE ORIE: Or tomorrow. Or tomorrow. And I expect the parties
24 that if they don't solve the problems, that they -- if the Chamber or a
25 Senior Legal Officer is able, then the parties should make themselves
1 available as well, even if it would be at extraordinary times. The
2 Chamber is determined to solve these kinds of problems, rather than to
3 spend more time on discussing them.
4 Yes. Is there any other issue the parties would like to raise at
5 this very moment?
6 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. There is
7 one matter, or even perhaps two. The first matter or the first question
8 that we should address is the assistance that the Defence would like to
9 have from your Chamber, in a sense that the Defence wanted to call as
10 witnesses a number of people from the UN family. These people knew the
11 situation. They were high-ranking military personnel and the Defence has
12 not been able to find the addresses of these persons, who were not able to
13 contact them directly and what will certainly come up is the assistance of
14 your Chamber that the Defence will need. Which is a -- this is a
15 practical question so that we can contact these witnesses, and to summon
16 them, if that is necessary.
17 JUDGE ORIE: Has the Defence already been in contact with these
18 witnesses? Because you say you don't have the addresses. I am a bit
20 MR. PILETTA-ZANIN: [Interpretation] I anticipated your question.
21 We don't have their current addresses and we did think that if we try to
22 take steps in the general way, to ask in New York in the UN HQ, they would
23 have responded in God knows how many months, if they would respond at all.
24 So that is why we didn't do this. So really, we don't know how to get in
25 touch with these people, and we thought it would be much better to state
1 the problem now so that the Chamber, who probably has more means at their
2 disposal than the Defence, that perhaps maybe you can assist us in this.
3 JUDGE ORIE: Have you interviewed them already? Have you been in
4 contact with them already? Yes, then --
5 MR. PILETTA-ZANIN: [Interpretation] No.
6 JUDGE ORIE: -- I may, but perhaps we should further consider
7 this. Then it is quite surprising that you are asking for protective
8 measures when you have not yet even met with these witnesses. That raises
9 some other issues as well in respect of protective measures, but we will
10 deal with that. The, I think, that the Chamber will certainly assist you
11 if there are witnesses that can give relevant information, and you have
12 difficulties in finding them, then, of course, the Chamber will assist as
13 good as it can. And I take it that the Prosecution, that might have
14 information about the whereabouts of the witnesses as well would assist
15 the Defence as well.
16 MR. IERACE: Yes, Mr. President, we would be happy to provide
17 information, if we have it. Although I note that Mr. Piletta-Zanin has
18 described these people as military personnel. I can tell you,
19 Mr. President, that what we would do in that situation is simply contact
20 the relevant military, and we haven't had a problem in the past in using
21 that avenue.
22 JUDGE ORIE: Yes. So that is even, as far as the methodology is
23 concerned, you got the first assistance already of the Prosecution,
24 Mr. Piletta-Zanin. Of course, if you asked for the assistance of the
25 Chamber, it is important for the Chamber to note what efforts you have
1 made up to that moment, and what route you tried to follow in order to get
2 the information you need.
3 But, in general terms, you can rely upon the Chamber to assist you
4 in getting witnesses here that are relevant for your case. You said you
5 had one or two questions, but please also keep in mind that it might need
6 some time. So, therefore, the sooner you report what you have done in
7 order to reach these witnesses, and what assistance you would seek, the
8 better the Chamber and perhaps also the Prosecution would be able to
9 assist you.
10 This was one issue. Is there another issue you would like to
12 MR. PILETTA-ZANIN: [Interpretation] Yes, there was a second issue,
13 but perhaps this is a premature moment to speak about it. In order to
14 gain time, we are going to raise it at a later stage, if there is need for
15 it. Thank you.
16 [Trial Chamber confers]
17 JUDGE ORIE: About the safe conduct, no safe conduct is required
18 for any of the witnesses to appear next week or is there? Because the
19 practical part of safe conduct is not -- it is a complicated matter,
20 especially also in communication with all kind of authorities. So not
21 even predicting what the decision of the Chamber will be, but I just
22 wanted to be sure that we are not facing any problems for next week. Yes.
23 So then we have no other items on our agenda. The decision -- yes,
24 Ms. Pilipovic.
25 MS. PILIPOVIC: [Interpretation] Your Honour, the Defence would
1 just like to ask the Chamber, if you can give us the information or are we
2 going to get that from the SLO about the schedule of the trial? Is it
3 going to be the usual, one week a.m., one week p.m.?
4 JUDGE ORIE: Yes, as far as I can see, we have a similar -- but
5 the court calendar is prepared by the Registry, and is available, I think,
6 up until December. So I think next week we start at the p.m. sessions.
7 So we would start at a quarter past 2.00. But this information is
8 available for you, yes, even holidays and court maintenance, everything is
9 on there. So perhaps a copy of the court calendar for the next month
10 could be provided to you so that you are well informed.
11 Yes. Then I thank the parties for their cooperation. I think all
12 those who assisted us both in the technical booth and the interpreters for
13 their assistance. We will adjourn. And the decision of the Chamber on
14 the 98 bis motion will be filed today and the -- we will adjourn until
15 next Monday at a quarter past 2.00 in the same courtroom.
16 --- Whereupon the hearing adjourned at
17 11.50 a.m., to be reconvened on Monday,
18 the 7th day of October, 2002, at 2.15 p.m.