Tribunal Criminal Tribunal for the Former Yugoslavia

Page 338

1 Friday, 18 January 2008

2 [Status Conference]

3 [Open session]

4 [The accused Gotovina and Markac entered court]

5 [The accused Cermak on provisional release]

6 --- Upon commencing at 10.04 a.m.

7 JUDGE ORIE: Madam Registrar, would you please call the case.

8 THE REGISTRAR: Good morning, Your Honour. This is case number

9 IT-06-90-PT, The Prosecutor versus Ante Gotovina, Ivan Cermak, and

10 Mladen Markac.

11 JUDGE ORIE: Thank you, Madam Registrar.

12 Good morning to everyone in this Status Conference in the case

13 against Mr. Gotovina and others.

14 May I have the appearances, Prosecution, first.

15 MR. TIEGER: Good morning, Your Honour. Alan Tieger,

16 Stefan Waespi, Laurel Baig, and case manager Donnica Henry Frijlink for

17 the OTP.

18 JUDGE ORIE: Thank you, Mr. Tieger.

19 Then the Defence for Mr. Gotovina.

20 MR. KEHOE: Yes, good morning, Your Honour. Gregory Kehoe,

21 Luka Misetic and Ana Katalinic for General Gotovina.

22 JUDGE ORIE: Thank you, Mr. Kehoe.

23 Defence for Mr. Cermak.

24 MR. KAY: Steven Kay with Tihomir Mak, case manager.

25 JUDGE ORIE: Thank you, Mr. Kay.

Page 339

1 Then finally, the Defence for Mr. Markac.

2 MR. MIKULICIC: [Interpretation] Good morning, Your Honours. My

3 name is Goran Mikulicic, together with Tom Kuzmanovic and Vlada Randunic

4 our case manager.

5 JUDGE ORIE: Thank you, Mr. Mikulicic.

6 The Status Conference is held a bit earlier than usual and that is

7 due to the developments in another case which might cause a -- an earlier

8 start than foreseen in the past.

9 This Status Conference has been more or less prepared in a 65 ter

10 meeting which was held this week. I have read the transcript of that 65

11 ter meeting so that I'm informed about whatever has been said and there's

12 no need to repeat all kind of things unless there's a matter remaining

13 which asks for specific attention.

14 I will go through most of the subjects sometimes very briefly and

15 I will start with the first one, that is the situation and the health of

16 the accused. But before I start with that, I first wanted to verify that

17 you, Mr. Gotovina, you, Mr. Markac, that you can hear in a language you

18 understand what is said.

19 Is that correct? Mr. Gotovina.

20 THE ACCUSED GOTOVINA: [Interpretation] Yes, Your Honours.

21 JUDGE ORIE: Mr. Markac.

22 THE ACCUSED MARKAC: [Interpretation] Yes, Your Honours.

23 JUDGE ORIE: Mr. Cermak is not present that is with his own

24 consent.

25 MR. KAY: That is right, Your Honour.

Page 340

1 JUDGE ORIE: Then the situation on the health of the accused.

2 From what has been said during the 65 ter meeting, I conclude that there

3 are no specific concerns that should be addressed during this Status

4 Conference. Is that correctly understood, Mr. Kehoe?

5 MR. KEHOE: Yes, with regard to General Gotovina.

6 JUDGE ORIE: Yes, Mr. Kay.

7 MR. KAY: Yes, for Mr. Cermak.

8 JUDGE ORIE: And Mr. Mikulicic.

9 MR. MIKULICIC: [Interpretation] Your Honour, Mr. Markac does have

10 constant health problems, but he is under control of the doctors,

11 physicians in the detention unit so we don't have any problems or requests

12 that we would like to bring to your attention at this point.

13 JUDGE ORIE: Then I would like to move forward, this not being an

14 issue which needs specific attention at this moment.

15 I think the background of this Status Conference is sufficiently

16 clear that where it was expected that the Haradinaj case would take us

17 well into 2008 due to the fact that there's no 98 bis and there's no

18 presentation of a Defence case in that case, that a judgment could be

19 expected far earlier than foreseen before. That has accelerated the start

20 of this trial.

21 Is there any matter -- we'll come to the start of the trial, the

22 date of the start of the trial soon, so -- but is there any comment on

23 that matter?

24 If not, then I'd like to discuss with you two issues which are of

25 major concern to the Chamber. The first being the setting of a date for a

Page 341

1 pre-trial conference and the start of the trial and the second one the

2 estimated length of the trial. They both have been discussed thoroughly

3 during the 65 ter meeting but these are issues that need to be further

4 addressed at this moment.

5 Let me, first of all - and I'll do it only once - explain to you

6 that it is unknown to me yet who will be the other Judges who will hear

7 this case. That means that some decisions can be made and should be made

8 at this moment even if we do know who the other Judges are. However, some

9 of the decisions I'd prefer to take together with my fellow Judges in the

10 future. So, therefore -- but, of course, you will understand that the

11 start of the trial is not a thing we can leave for the future because if

12 there's no start of the trial, there will be no other Judges most likely.

13 Therefore, we have -- having read the concerns expressed by

14 Defence counsel, mainly Defence counsel, I would say, although not all of

15 them in a similar sense, having heard what the commitments are for trials

16 still ongoing elsewhere in the world, family holidays which have been

17 planned - I will not bother you with the family holidays I have planned -

18 and I even saw that some of them were already paid. I can tell you that

19 mine are paid as well. I will give them up if need be and I expect more

20 or less the same because, unfortunately, although I would have wished to

21 send you all on three weeks of holiday with your families, that might

22 finally obstruct the course of the trial. It's not for the first time

23 that I had to give it up. I will try to avoid it to the extent possible,

24 but where it is impossible only we can't stop trial for three months

25 because you have all scheduled family holidays on a different moment.

Page 342

1 That's for Mr. Waespi and Mr. Tieger true, as well, although they have not

2 informed me on yet on whether their holidays were already paid.

3 We have looked at it, I have discussed it with my staff, and I'm

4 quite convinced that what I'm going to propose will certainly not meet all

5 of your concerns both in terms of readiness for trial and in terms of

6 commitments elsewhere, whether family or business, but I propose the

7 following. Pre-trial conference to be held on the 10th of March. Opening

8 statements to be given during that week. Of course we start with

9 Prosecution and the Defence, of course, has the choice on whether to delay

10 or not to delay any opening statement. If there would be any time

11 remaining during that week, we'd hear the first witnesses. Mr. Tieger was

12 invited to consult with Defence counsel in view of the concerns expressed

13 on readiness for trial what would be most suitable witnesses to be called

14 for that first week. So that would take us from the 11th of March until

15 the 14th of March. If there would be any overflow, then 17th and 18th of

16 March still to be reserved, but, of course, we'll try to -- then to finish

17 whatever opening statements there are and whatever witnesses will be

18 called to finish that by the 14th of March.

19 Then we'd have a break and we would resume on the 7th of April.

20 We would then continue full speed. Full speed means, at this moment, five

21 days a week either morning or afternoon session. Here is one of the

22 issues which I have difficulties to make a final determination. As you

23 may be aware in some cases Judges are serving as a reserve Judge in one

24 case and serving as one of the Judges of the Bench in other cases. Under

25 those circumstances, it is likely that we would not sit five days a week

Page 343

1 because -- well, let's not talk about inhumane treatment but Judges to sit

2 five consecutive days a week on two cases is just not possible. So,

3 therefore, under those circumstances if an ad litem Judge would be

4 assigned to this case, he would sit on another case as well, then mostly

5 likely we would go back to four days a week, but I can't give you any

6 decision on that, since I do not know who the other Judges will be.

7 Then just for the information for the parties, I'd like under

8 those -- if we have started or resumed on the 7th of April, the week

9 starting the 5th of May, is scheduled to be a non-sitting week. Then, as

10 far as the summer recess is concerned, Monday, the 28th of July is the

11 formal start of the summer recess, ending Friday, the 15th of August, but

12 the week after that, that's the week starting the 18th of August until the

13 22nd of August, Friday, the 22nd of August, is also scheduled to be a

14 non-sitting week. There will be another week in Autumn where we will not

15 sit but that week I will discuss that with my fellow Judges once they are

16 known.

17 This is what I propose at this moment, fully aware that both, in

18 terms of what has been said about readiness for trial and other

19 commitments, that it certainly will not meet all your wishes, and I'd like

20 to give an opportunity to the parties to comment on this proposal.

21 Mr. Tieger.

22 MR. TIEGER: Your Honour, I think the Court was made aware of the

23 Prosecution concerns yesterday.

24 JUDGE ORIE: The eight weeks.

25 MR. TIEGER: And the Court indicated -- I know you read the

Page 344

1 transcript of the pre-trial conference and so I simply accept that that

2 was a matter you took into account and falls in the category of not every

3 party will be fully satisfied with the -- the concerns they made known and

4 I have no --

5 JUDGE ORIE: I think have you got now eight weeks minus two days;

6 that's approximately what you have got. Apart from that I also have to

7 add to what I just said that, of course, the availability of a Presiding

8 Judge depends on the delivery of the judgment in the case on which I'm

9 sitting at this moment. So, therefore, this is a proposal. When I say

10 start on the 10th with the pre-trial conference, that is, of course, all

11 subject, although there is it some margin, some flexibility possible there

12 for me; but of course, unforeseen developments in other cases could

13 disturb the scheduling but we just can't wait until we have finished that

14 other case before we start scheduling this case.

15 Then, Mr. Kehoe.

16 MR. KEHOE: Yes, as I mentioned yesterday I did have a personal

17 commitment on that first week, the 7th, 8th, 9th. Frankly, my daughter is

18 in a play back in the United States so that was why I was asking for that.

19 But professionally, because I had a -- stood before a judge in the United

20 States and did not have a trial date because Judge Moloto said that trial

21 would not commence until five months, I have been set for trial on the

22 17th.

23 JUDGE ORIE: The 17th of?

24 MR. KEHOE: March.

25 JUDGE ORIE: March. Yes. That would mean if we would have this

Page 345

1 overflow of this first week that -- and, of course, we all try to achieve

2 that we'll finish what we have to do on the 14th, that co-counsel should

3 deal with whatever remains after the 14th. And that would be one or two

4 days.

5 MR. KEHOE: Well, I understand, Judge. Of course, having been an

6 advocate yourself, one does not walk into a courtroom the day before

7 trial; obviously, there is some preparation time necessary for a client

8 back in the United States as well. That deserves that from me also.

9 JUDGE ORIE: Of course I do understand that Mr. Kehoe. But at the

10 same time we have other trials as well. So if you take one day more to

11 prepare but of course we can't just -- you have a trial, Mr. Kuzmanovic

12 has a trial, family commitments, I mean, we could vacate two month so

13 therefore we try to accommodate you. But as I said before it will

14 certainly not fully meet your wishes.

15 MR. KEHOE: Yes, sir.

16 JUDGE ORIE: And then of course, co-counsel. We have co-counsel

17 who can replace counsel.

18 MR. KEHOE: Yes.

19 JUDGE ORIE: And it might well be that Mr. Tieger, therefore I

20 invited him to consult with the Defence doesn't come up with the key

21 witnesses in the first week, of course I don't know, but if you could find

22 a solution where it's not that dramatic that you may miss part of that

23 week, that, of course, would perhaps alleviate some of your concerns.

24 MR. KEHOE: Yes, sir.

25 JUDGE ORIE: Yes. Then Mr. Kay, I take it that your main concern

Page 346

1 would be readiness for trial.

2 MR. KAY: Yes. I've come off a little bit better, I think, from

3 the meeting on Wednesday where 1st of March was discussed, I've got an

4 extra ten days, and I appreciate that there is going to be an opening

5 session then an adjournment.

6 JUDGE ORIE: Yes, perhaps one or two witnesses, but not a heavy

7 programme this week of the 10th and then a restart on the 7th of April.

8 MR. KAY: Yes. My concern does remain at this juncture I did not

9 utter my words lightly at the meeting and I think the court appreciates

10 the scale and scope of these cases. I have come a long way in three and a

11 half months with no other commitments and there are none in the future; we

12 have dedicates ourselves totally to this case.

13 My concern is that once we start trial, that my focus then becomes

14 into the trial and it becomes very difficult to deal with ongoing

15 preparations once that happens, and I hope the Court appreciates that,

16 that when you're dealing with the case itself, that the preparatory

17 measures that you otherwise would have been taking become harder and

18 harder to accomplish. I do reiterate that the Prosecution have had many

19 years to prepare this case, so the issue of the date is not a matter for

20 them, whereas on the Defence side and from my position, I have had a very

21 little time to prepare the case.

22 I've had to take a -- an advance look at where I will be in two

23 months' time now it being the 10th of March, and I still see a lot of work

24 that I have to accomplish. And my concern is that I had not be ready for

25 cross-examination because all the full materials have not been considered

Page 347

1 or prepared, not only by me but by my team and I have -- I have created a

2 very large team to support me on this, and I'm not just talking about my

3 position, but there are delegated tasks to a large number of people.

4 First of all, starting with the auditing of the case, the inventory and

5 then moving to case preparations, as well as moving on the front of

6 preparing for the Defence, because the Court has said it is full steam

7 ahead and I appreciate with the position of the Tribunal that there won't

8 be any long gaps here between the closure of Prosecution case and starting

9 of the Defence case.

10 So it has been my responsibility to try and ensure that progress

11 is at least started on those preparations.

12 I just ask the Court for more time. I note the language of a

13 proposal and it is not an order yet, but I do beg the Court to take into

14 account the position that I am in, which must be for the best interests of

15 my client that I'm given more time and be in the interests of justice for

16 him.

17 We are trying to prepare the case in batches, having started first

18 at the crime base, then moving to experts, and now we are on the UN

19 section of the case. But in preparing it that way, we have discovered a

20 lot of materials that we've had to investigate, going through the

21 Prosecution materials we found a lot of statements there that are helpful

22 to the accused giving very important information as well as giving very

23 exculpatory information. We haven't found ourselves looking at a case

24 that is just fixed within the Prosecution parameters. It is a case of far

25 wider compass from the files that they've disclosed to us, as well as from

Page 348

1 our own preparations. And at this stage, as I have told the Court, and I

2 know Your Honour has read the transcript, and I don't want to go over all

3 ground, I am asking for more time.

4 JUDGE ORIE: Yes, you even mentioned October, I think.

5 MR. KAY: Yes.

6 JUDGE ORIE: Mr. Kay, let me be quite clear. It is not without

7 reason that I invited Mr. Tieger to consult with the Defence for these

8 first witnesses which would at least if you would decide -- of course I

9 don't know whether you would decide or not to delay your opening statement

10 that would mean that if Mr. Tieger -- and I had specifically your position

11 in mind, if Mr. Tieger would be able to find witnesses which do not cause

12 too much of a problem for this first week, then actually we start the

13 trial more or less on the 7th of April. There are still a couple of weeks

14 after this week ending the 14th of March. There are three more weeks

15 before the 7th of April and then I also for this purpose scheduled or at

16 least proposed to schedule the non-sitting week relatively early, that is,

17 after four weeks once we've started the trial. And finally, scheduling a

18 trial is -- the proof of the pudding, of course, is in the eating, I mean

19 finally the Chamber will not be blind and deaf for what it sees that

20 happens; therefore, if specific circumstances ask for more time they'd

21 consider that, but of course at this moment it is a very abstract matter

22 for the Chamber, I mean, we have not full insight and everything. We have

23 to find our way. But certainly part of the proposal especially the

24 elements I just mentioned we'll take into consideration, specifically also

25 in view of the concerns expressed by you.

Page 349

1 MR. KAY: Yes. Well, Your Honour, I cannot, I don't think,

2 improve on my arguments - I'm not saying they're the best arguments - but

3 I don't think I can improve on the information given to the Court, but I

4 do ask the Court for understanding of our submission which is based on

5 genuine reasons. These are not reasons that we have just put together. I

6 have to take over as lead counsel entirely on a new team.

7 JUDGE ORIE: Yes. And what caused that to happen is not something

8 we should discuss in full detail --

9 MR. KAY: No.

10 JUDGE ORIE: -- at this moment, but of course there are a few

11 questions and dilemmas there as well.

12 Then, finally Mr. Mikulicic.

13 MR. KUZMANOVIC: Your Honour, if I may --


15 MR. KUZMANOVIC: The start date primarily affects, with respect to

16 the Markac Defence, me given the fact that I was named in early November,

17 I see that the Court has taken into consideration several of my issues and

18 it is very appreciated. I'm very appreciative of that.

19 I'm somewhat similarly situated than Mr. Kay only in that I am

20 learning the case as he is learning the case with even less time. We

21 fortunately have a team in place but I am part of the team and given the

22 fact that there are things that I still need to do with respect to this

23 case to be ready myself for trial, I'm somewhat similarly situated than

24 Mr. Kay; but under the circumstances I appreciate the Court's taking into

25 consideration the issues that I have addressed.

Page 350

1 JUDGE ORIE: Yes, Mr. Kuzmanovic. You may have noted that the

2 first week of April, for example --

3 MR. KUZMANOVIC: Yes, yes.

4 JUDGE ORIE: -- they're not sitting which might be of some relief

5 to you.

6 MR. KUZMANOVIC: Yes, I do appreciate that, Your Honour. So I

7 wanted to let the Court know that I did realise after the proposed

8 schedule was put forth that those things were taken into consideration. I

9 appreciate that.

10 JUDGE ORIE: Thank you. Then we'll consider your submissions and

11 we'll let you know as soon as possible whether the proposed schedule will

12 become the effective schedule to the extent the practical situation

13 allows; that is finishing the other case, having Judges available in time.

14 Of course we are dependant on New York in that respect as well.

15 So we'll finalise that with full consideration for what you have

16 said. Then I -- is there anything else as far as the start of the trial

17 and this practical part of the scheduling of the trial is concerned. Is

18 there anything else you would like to raise?

19 Mr. Tieger.

20 MR. TIEGER: No, Your Honour.

21 JUDGE ORIE: Mr. Kehoe.

22 MR. KEHOE: No, Your Honour.

23 JUDGE ORIE: Mr. Kay, Mr. Kuzmanovic. Sometimes I just establish

24 that there is nodding three times which is a very practical way of -- so

25 that's three times nodding no from the Defence side.

Page 351

1 Then I'd like to move to our next issue which needs to be fully

2 addressed. That is the length of the trial. As I have seen and as I have

3 checked in the previous transcripts, we moved, Mr. Tieger, and I'm, to

4 start with, focussing on the presentation of the Defence case, we started

5 with 22 to 24 month, the whole of the case, including writing a Judgment.

6 Then -- I'm now talking about late 2006. Then we -- no, I don't know

7 whether it is 2006 but at least that was the first -- and then in

8 December, the 5th of December, 2006, we had a new estimate of 2 to 14

9 month for the whole of the case, but without the time it takes to write a

10 Judgment; and yesterday it was 11 months for the presentation of the

11 Prosecution case only, which would bring us back to the original, the

12 initial, rather, lengthy estimate.

13 Now, the Chamber took the effort, and I do understand that you did

14 it as well, Mr. Tieger, because earlier you said it was kind of an offer

15 of an assessment not really on the basis of calculations, let me be quite

16 clear to all parties, if we're talking about time, if we're talking about

17 measuring whatever, no vagueness, just calculations. Mr. Tieger is aware

18 from previous cases that I'm rather of the arithmetic kind than of

19 anything else. So, therefore, Mr. Tieger, let me just address a few

20 matters.

21 First of all, if we're talking about month, I would like to know

22 what we do understand by a month. Is that a month net time in Court, or

23 is it a month in a calendar year? Is 1/12th of a year? Because a year

24 has 52 weeks. But effective court time is only 41 to 42 weeks. That is

25 recess, et cetera, et cetera. So when we're talking about month, I'd like

Page 352

1 to know what type of month you have in mind. That is 1/12th of a calendar

2 year or whether you're talking about an effective month in court because

3 41 weeks would be 720 hours approximately. Now one week for me, if we're

4 sitting five days a week, is, let's take the average session takes us

5 from, well, let's say from 9.00 to quarter to 2.00; that is four hours and

6 45 minutes. Of these four hours and 45 minutes, 45 minutes, that's 25

7 plus 20, are taken by breaks, which leaves us four hours, and just to be

8 very practical effective time for case presentation, so that is the dues,

9 whatever technical problems we have, the dues, if the Judges, for good

10 reasons or for bad reasons are five minutes late -- effective court time

11 is three and a half hours a day, that brings us to one week is for me 17

12 and a half effective hours for case presentation. Of course, often

13 including procedural incidents related to case presentation, that means

14 that one month effective time in court is approximately 75 hours.

15 Now, Mr. Tieger, on the basis of this, you said 11 months for the

16 case presentation by the Prosecution -- all kind of cables ...

17 That is 11 months on the basis of this calculation. Now I'm

18 talking about net month so that would not take us from January to November

19 but it would take us from January to somewhere in March next year, 11

20 months, is 825 hours.

21 When you made this calculation of the time needed for the

22 Prosecution's case, I take it that you had a ratio in mind about how much

23 time there would be for cross-examination of the Prosecution witnesses.

24 Could you tell us what ratio you used when you were calculating because

25 you said 11 months on the basis of calculation rather than on a kind of

Page 353

1 vague assessment.

2 What was the ratio you had in mind?

3 MR. TIEGER: Your Honour, the ratio that this calculation

4 represents when compared to the underlying estimated hours for

5 presentation of the Prosecution case, that is the examination-in-chief,

6 was in the order of 60 per cent.

7 JUDGE ORIE: 60 per cent for --

8 MR. TIEGER: That is working -- I must say that is working

9 backwards a bit. I'm not going to claim that the -- the 11 months was

10 taking into account a variety of factors, including the estimated lengths

11 provided in the 65 ter list, a sort of a rough calculation of potential

12 efficiencies and a calculation of the length of time required for the

13 Defence cross-examination during the course of that case, and --

14 JUDGE ORIE: My question quite simply was: How many hours you

15 calculated for cross-examination for one hour of examination-in-chief?

16 MR. TIEGER: Well, I guess my point is I don't want to mislead the

17 Court. The calculation was not done in precisely in that fashion. What

18 I'm indicating is that my assessment of the current calculation, that is

19 the 11 months equalling 825 hours, yields a -- compared with the -- the

20 formalistic I guess you will say, I shouldn't call it formal, but the

21 calculations of the number of hours required for the Prosecution case in

22 chief and the presentation of Prosecution witnesses, the direct

23 examination, that leaves about 60 per cent of that time for

24 cross-examination. So that's working backwards a bit.

25 JUDGE ORIE: Let's then have a look at it.

Page 354

1 How many hours are scheduled on your list of witnesses? I mean,

2 in your 65 ter list. How many hours?

3 MR. TIEGER: Approximately 550, Your Honour.

4 JUDGE ORIE: Approximately 550. Okay. Now, 60 per cent of 550 is

5 330. Do we agree on that.

6 MR. TIEGER: Yes.

7 JUDGE ORIE: That makes 880, which, 11 months, I calculated was

8 825. That is one full month extra. So, therefore, and have you

9 considered, Mr. Tieger, that if you give two hours for a 92 ter witness,

10 that the short presentation of evidence through a written statement would

11 not equally reduce the time the Defence would need to cross-examine such a

12 witness. I mean, if you present the witness viva voce witness - 60 per

13 cent, I will come back to the 60 per cent at a later stage - but if you

14 introduce a long written statement and examine the witness for one hour on

15 that, would it be fair to expect the opposing party to be limited in time

16 for cross-examination as well because they have to cross-examine also on

17 the written statement and not only the part that was presented viva voce.

18 So therefore, whether a percentage at all could be applied if we're

19 talking about 92 ter witnesses, and there are still approximately ten of

20 them, is still to be seen. But you said 60 per cent for all Defence

21 counsel together? Three -- three cases, three defendants.

22 MR. TIEGER: Again, two things, Your Honour.

23 Yes, I accept what you're saying and I think that whatever ratio

24 is deemed appropriate, obviously changes with an increase in 92 ter.

25 JUDGE ORIE: It is limited. 92 ter is limited but, nevertheless,

Page 355

1 it still presents some 10 per cent of the witnesses, yes.

2 MR. TIEGER: And again I can only indicate, as I did a moment ago,

3 that the -- the 60 per cent figure was not one that I arbitrarily at this

4 time placed on -- it is a figure placed on the -- or attempted to limit

5 the, in my judgment, the length of Defence cross-examination. It's a

6 calculation that, as I indicated reflects the -- a range of factors and an

7 attempt to come up with a figure done in a less precise way than the Court

8 is now urging us to do, that yielded in hindsight a 60 per cent figure.

9 Now, to the extent that the Court considers that figure

10 inadequate, imprecise, unsatisfactory it will have to be revisited. But I

11 don't wanted to be misunderstood as having engaged in a calculation

12 process that built in that 60 per cent figure. We've arrived at it -- I

13 mentioned it now having done a quick calculation based on the Court's

14 assessment of the number of hours in a month and the number of months --

15 JUDGE ORIE: But you mentioned 11 month before I calculate the

16 number of hours on your 65 ter list I have to establish that even if you

17 take 60 per cent that the -- your 56 hours would amount to more than 11

18 months, to 12 months. And of course it's clear that -- that the ratio

19 is -- has quite an impact on the length of the trial. Of course, I have

20 limited experience in this Tribunal, I have done a couple of cases. In

21 one of the cases with one accused the -- well, not the ruling but the

22 guidance was 60 per cent. That was my second case after my experience in

23 the first case where we granted more than 60 per cent. The case I'm

24 dealing with at this moment is a case to some extent similar that there

25 are three accused as well, where the Chamber give as a guidance that the

Page 356

1 whole of the Defence would have similar time as the Prosecution. That

2 means to be divided among Defence counsel as agreed and of course if there

3 is no agreement the Chamber would finally give further instructions to

4 counsel. But if we would -- let's just assume that in this case and I

5 will hear from Defence counsel soon on what their views are to what extent

6 they think they could agree on the matter but if we would have for three

7 Defence teams together same time as for the Prosecution then the 560 hours

8 and I leave apart now the 92 ter issue, would bring us to 1120 hours,

9 which is well over 15 month and not 11 month, and 15 hours -- 15 months in

10 calendar time would be more than one and a half year, which of course

11 dramatically changes the perspective of how this case will be -- the

12 length of this case. Therefore, this is of great concern to the Chamber.

13 Let me first briefly address Defence counsel on the matter of the

14 ratio, whether you have given it some thought. Whether you have looked at

15 other cases and how it worked.

16 MR. KEHOE: Frankly, Judge, we have not spent a tremendous amount

17 of time not having the experience of Your Honour as to how he broke these

18 down. I will say that it is very difficult to make broad sweeping

19 decisions because so many of these witnesses impact one defendant more

20 than the other. And sometimes it's -- you put a dramatic witness on that

21 may -- for the Prosecution dramatic in the sense of may give a lot of

22 information for -- in a very short period of time that is pro-Prosecution

23 that may take an extraordinary amount of time in cross-examination,

24 challenging credibility, bias, and all those other issues. So frankly,

25 Judge, I have not given that time constraint a lot of thought and we will

Page 357

1 spend some time doing that. I do see that there are some difficulties

2 with our client with a decision that restricts our ability to cross and I

3 know there obviously has to be some limitations on cross for everybody.

4 But even putting the 92 ter witnesses aside, I do have concerns about

5 unduly restricting that given the fact that the Prosecution is going to

6 put some people on with some evidence maybe in a very short time-frame

7 that we need a significant amount of time to challenge.

8 JUDGE ORIE: Yes, may I address already before I give an

9 opportunity to your colleagues to comment on that, on two issues. The

10 first is that sometimes one witness may affect the case of one specific

11 accused more than it does to the others. That's of course exactly why I

12 suggested or at least referred to a situation or to a scheme in which the

13 parties can agree on this witness is affecting my client most so I'll take

14 70 per cent of the time reserved for cross-examination; that is one. So

15 that is flexible.

16 Then another matter is that if this serves as guidance to the

17 Defence, my experience in the case we are about to finish now, is that

18 sometimes the Defence indicated in advance that on the list of witnesses

19 they had some witnesses which would take considerable more time to

20 cross-examine than others. That is important for the Prosecution for

21 scheduling and trying to get their witnesses to The Hague; and therefore

22 if I'm talking about the same time for the Defence as for the -- for the

23 Prosecution, for all Defence counsel that would not necessarily mean that

24 that would apply for each individual witness. But we could see, for

25 example, after six weeks whether the time taken and of course the Chamber

Page 358

1 would then accept that sometimes you might take twice the time the

2 Prosecution used but perhaps in other circumstance you would not need more

3 than 25 or 30 or 40 per cent of that time. So, therefore, I'm not trying

4 to suggest a -- a very strict scheme for each and every witness, but,

5 rather, to find an instrument which allows us to manage, more or less, the

6 time the trial takes.

7 These are the two issues you raised on which I immediately

8 responded before giving an opportunity to other counsel to --

9 MR. KEHOE: If I may just respond to Your Honour's comments

10 briefly.

11 Certainly I envision witnesses coming before the Chamber that are

12 going to be focussed simply on one of the accused as opposed to another

13 and we're certainly -- if that is the case with the other accused, we're

14 not just going to exchange in useless cross-examination. That has never

15 been my practice so I'm not -- certainly not going to start it now.

16 That being said, Judge, I do want to mention that in this

17 particular case given the charges set forth by the Prosecution, it's not

18 only the evidence coming from the Prosecution but there's not necessarily

19 a unanimity of interest between and among the accused and I think that

20 will become apparent very quickly as we move through this case.

21 So there may be cross-examination not just necessarily vis-a-vis

22 what the Prosecution is setting forth but what is coming in from some of

23 the counsel for the other accused.

24 So in that sense it is a little bit unique. And that's what

25 happens with multiple accused in a case.

Page 359

1 JUDGE ORIE: I do understand that. And there again, the proof of

2 the pudding is in the eating and I can assure you that the Chamber will

3 keep a close eye on how time is used for cross-examination, whether time

4 is used efficiently or not; and of course I do understand that your views

5 on what is efficient of use of time during cross-examination might differ

6 from the Chamber's view. But we need a starting point, we need some kind

7 of guidance and then we'll see how it works out in practice.

8 I didn't hear you commenting on the 60 per cent suggestion or the

9 at least, the 60 per cent implicitly used for calculations by Mr. Tieger

10 for the whole of the Defence.

11 MR. KEHOE: Frankly, Judge, I haven't given it that much thought,

12 on the 60 per cent. And anything that I would give you now is a bit off

13 the cuff and certainly I would like to talk to co-counsel and I would like

14 to talk to my client as well.

15 JUDGE ORIE: And perhaps to other colleagues as well but also in

16 other cases to see how these things work out.

17 Okay, thank you.

18 Then Mr. Kay.

19 MR. KAY: I see from Your Honour's observations on these matters

20 you're alert to the issue of the 92 ter witnesses which create a specific

21 problem with their evidence going in the form that it does.

22 JUDGE ORIE: I leave that at this moment aside. I just showed my

23 awareness of calculating and 92 ter, yes --

24 MR. KAY: On the viva voce witnesses, a problem for the Defence is

25 always this, that a witness may be used in a broad way by the Prosecution

Page 360

1 because this is a JCE case, we are not dealing with separate perpetrators

2 with separate crimes. The allegation is of a JCE nature, that at the end

3 of the Prosecution evidence in chief leaves all three of us in the

4 position but all with separate interests to advance. And then carving

5 that time between us, giving us really a very small proportion, 20 per

6 cent each, say if it is a broad witness dealing with all three of us, does

7 not give very much time for cross-examination, no matter how effective and

8 efficient.

9 This is a case involving documents and we will be relying on those

10 and are trying to achieve through speed to get our points across I'm sure

11 of that. But I would like, Your Honour to bear in mind that the moiety of

12 20 per cent on some of these witnesses, when we have three separate

13 interests to advance, and it may not be because we're challenging each

14 other or trying to blaming each other but we're just trying to deal with

15 the thrust of the allegation, will bear some examination and thought by

16 the Trial Chamber as to whether the fairness is being achieved in

17 time-limiting questioning in that way.


19 Mr. Mikulicic.

20 MR. MIKULICIC: [Interpretation] Thank you, Your Honour. It's hard

21 to add anything new on this subject. In relation to what my colleagues

22 have said, in any case it is a fact that at this point that there's still

23 a lot of unknowns regarding this trial and primarily I'm thinking of the

24 Prosecution side, which, after presenting its witnesses and after we see

25 in practice how the cross-examination will develop then the Defence will

Page 361

1 be in a position to provide a more accurate plan or prediction than it is

2 able to do at this moment, just like Mr. Kay and Mr. Kehoe have said.

3 Depending on the topic that witnesses will testify on and whether it will

4 be a common interest of the Defence and I'm thinking of the joint criminal

5 enterprise aspect or will the testimony affect any particular accused, I

6 believe that in that sense the Defence will be able to reach some

7 agreement regarding witnesses. But, I believe that this cannot be

8 something that can be determined in advance because sometimes I think

9 Defence teams will have different positions in relation to testimony of

10 individual witnesses. And, finally I would just like to say that I

11 absolutely believe that your view on this matter, based on experience in

12 previous cases and some other cases that we had the opportunity to see

13 that we will be able to provide a more precise estimate after we see how

14 things will actually proceed in practice.

15 JUDGE ORIE: Yes, thank you, Mr. Mikulicic.

16 Of course, it is clear that the time needed for the

17 cross-examination, for example, of a crime base witness, might be just 40

18 per cent and would be the same for all defendants; I can imagine that. At

19 the same time, I can imagine that a witness is examined on command

20 structure, where 50 or 60 per cent of his testimony would be the same for

21 all defendants and that the remaining 40 per cent would be quite different

22 for whether we are talking about defendant A, B, or C.

23 So, therefore, I do see that if we start with a kind of a guidance

24 that, as I said before, of course, is not to say that 100 percent or 80

25 per cent or 60 per cent is to be strictly applied for every witness.

Page 362

1 At the same time, I invite and I urge Defence counsel to talk

2 about it, to consider it, perhaps also to consult with other Defence

3 counsel who have served in similar circumstances. I can imagine that a

4 six accused trial is different from a three accused trial, is different

5 from a one accused trial. So therefore, when I earlier said that I was a

6 bit concerned about the 60 per cent which was implicit in the calculations

7 of the Prosecution, I have to confess that the 100 percent for three

8 Defence teams was as you may be aware of or not be aware of was applied in

9 the -- in another three accused trial, and there, of course, you're never

10 in a situation where everyone is happy with everything that happens, but I

11 think worked out relatively well, and, therefore, I'm looking forward to

12 any further thoughts on the matter and -- but that is what guides my mind

13 at this moment.

14 MR. KUZMANOVIC: Your Honour, if I may, I think one of the things

15 that we discussed and I think it is the subject of a motion which would

16 help all of us, I believe, would be a spreadsheet or a chart that would

17 identify witness, exhibit, count, for example, which would really, I

18 think, in advance give everyone an opportunity to say, okay, this is the

19 witness, these are the exhibits the witness is going to be using or the

20 Prosecution is going to be tendering through this witness and these are

21 the counts or count or counts that this witness is going to be testifying

22 about would really help all of us to decide, okay, this is a person, for

23 example, the Markac Defence need to spend more time on cross-examination

24 or the Gotovina Defence. And it would also, I think, enable the court to

25 see where the case is going from the standpoint of either direct or

Page 363

1 cross-examination in advance and I think that's the subject of a motion

2 that's pending; but I think that would enable us to more accurately

3 determine what kind of cross-examination each party would have.

4 JUDGE ORIE: Yes. Now my concern is not primarily to know in

5 advance exactly whether Witness A, B, or C would take two hours or two and

6 a half or four and a half of cross-examination; my main concern at this

7 moment is the scheduling of the trial as a whole with the -- I fully admit

8 that sometimes a trial develops in a way which makes you forget about

9 initial scheduling; I accept that. Sometimes a case will be far shorter

10 than you would have scheduled. Sometimes it may take more time and of

11 course most important for the Chamber will be how is the time used.

12 I mean, sometimes, I've heard cross-examinations where, I would

13 say, that the information that was elicited from the witness could have

14 been elicited in a third of the time that was actually used. Also, I am

15 afraid that I have a bad reputation under common law oriented lawyers that

16 if matters are not -- if an examination is not efficiently run, that I try

17 to speed up now and then, just for you to be aware. Also ask your

18 colleagues about how it works.

19 Therefore, certainly we will consider your suggestion which

20 certainly helps in preparing for the cross-examination and certainly also

21 assists in being aware that a certain witness will take more time in

22 cross-examination than the average. So therefore it might be very helpful

23 instrument. We will consider it. But at this moment I'm mainly focussing

24 on the length of trial as a whole.

25 Mr. Tieger, that brings me back to you. We discussed the 11

Page 364

1 months, which are 75 hours a month of case presentation, which is far

2 beyond any of the earlier estimates you've given, whether we're talking

3 about a 22 to 24 for the case as whole, whether we're talking about 12 to

4 14 for the case as a whole; whereas now, if we would apply 100 percent

5 ratio, would bring us already to 15 months only the presentation of the

6 Prosecution's case, which would mean 18 calendar months, which would mean

7 36 months. That's a three-year trial, which is far beyond any of the

8 earlier estimates.

9 The Chamber invites you, and you know that if you do not follow an

10 invitation, it is sometimes by an order, but the Chamber invites you to

11 present a drastically reduced witness list. That is, your present witness

12 list which again goes beyond whatever the estimates have been before, goes

13 to 550 hours. The Chamber would like to invite you to see whether can

14 produce a list with case presentation somewhere in the area of 200 hours,

15 because that would bring us back to the earlier estimates.

16 MR. TIEGER: Your Honour, I don't recall in the past ever

17 rejecting a Court indication for any reason and I wouldn't do so in any

18 case with the Court. But I needed to step back, refer to something that I

19 explained at the 65 ter conference in connection with the invitation the

20 Court has just made.

21 The Trial Chamber was in -- during the course of our discussions

22 about the case throughout, I think, was in possession of our 65 ter list

23 and our -- not this particular Trial Chamber, of course. And our

24 estimated times. To the best of my recollection, the original estimated

25 date or length of time for trial conformed roughly with that. At the time

Page 365

1 the further calls for estimates were made, they were in the context of a

2 realistic possibility that the case might have to be extended and that

3 there would be opportunities to attempt to build inefficiencies into the

4 case and furthermore, just a general call for a sense of the parties about

5 whether or not the issues in the case necessarily gave rise to a case of

6 the originally projected length. It was in that spirit and knowing that

7 the original estimates of time that are the basis for the calculations we

8 have discussed today were made, that those discussions took place and

9 those estimates were made. The Prosecution, of course, accepts the

10 Court's concerns about the length of trial and the invitation to review

11 all aspects of case to see the extent to which that length might be

12 reduced, but the number of hours suggested as a target by the Court,

13 although I don't want to presume anything without the kind of review the

14 Court is inviting, seem to me to be Draconian and impossible in the

15 context of this particular case.

16 JUDGE ORIE: May I then remind you, Mr. Tieger, to the following.

17 These estimates were, first of all, were given without any further

18 specification. Then the 65 ter list was presented in March 2007. On the

19 Status Conference on the 6th of July of 2007, Mr. Tieger, you said the

20 following: I do recall that previously when the Court inquired, the

21 Prosecution made a 12 to 14-month estimation to the best of my

22 recollection. Assessing at that time the likelihood or at least the

23 optimism at that point about the effort to reach agreed facts, streamline

24 the case insofar as possible, and reach a point at which the genuinely

25 disputed issues in the case would be the focus of the trial. And then you

Page 366

1 said: Nothing that has happened since that time has caused me to

2 appreciably vary that estimate.

3 Mr. Tieger when you presented the - and I checked it carefully -

4 when you presented your 65 ter witness list with the numbers of hours,

5 first of all, you didn't give a total number of hours. There are 138. I

6 took the effort yesterday to add all of them, the 138, and then came to

7 this dramatic conclusions that where you said 11 month, still this week

8 you said 11 months, which turns out to be on a realistic basis at least 15

9 months. And that you didn't inform the Chamber in July that the situation

10 on the basis of the list you had provided to the Chamber and do not

11 expect, of course, the Chamber to do the calculations and addings so that

12 we know the totals spontaneously unless there is a reason to do so,

13 therefore, the whole history of the assessment, the estimates of the case

14 length are of great concern to me.

15 I'd like you to get back to the estimates you've given, estimates

16 that were not only given in the context of this case, but also estimates

17 that were given in the context of, and that is perhaps of no concern to

18 the Defence counsel of the trial schedule working group. I mean, that is

19 where we try to find out how much time a case will take, and if you say it

20 is almost Draconic what I'm asking from you, my response could be that was

21 Draconic what you did at all these occasions where you came with what I

22 consider, at this moment, and of course perhaps not finally, but to be not

23 realistic estimates.

24 MR. TIEGER: First of all, Your Honour, I apologise for the use of

25 that term which I come to realise has a much more pejorative and

Page 367

1 accusatory tone than--

2 JUDGE ORIE: No, no. You know me enough, Mr. Tieger, that I'm not

3 offended, I'm not insulted by it. But if you say it is dramatic, then, of

4 course it is and what I'm asking your attention for is that this is

5 dramatic what I'm asking you, then you did before -- what the Prosecution

6 did before what dramatic and caused this request.

7 MR. TIEGER: Your Honour, again, I tried to explain the basis for

8 that. I'm sorry that what I regard as an obvious -- as a misunderstanding

9 arose. I accept that -- and it is obvious the nature of the Court's

10 concern about the length of the case. I also accept the responsibility to

11 ensure to the extent possible that the Prosecution case is presented to

12 the Chamber in full and the Chamber is in a position to make the right

13 decision.

14 We will do what the Court has suggested, of course, and review the

15 entirety of the case with an eye to make it as efficient as possible. I

16 simply wanted to signal my concerns about the -- what seemed to be a

17 projected number and -- but we'll do our best do balance, I think, the

18 obligation to present the Court with the facts so a just decision can be

19 made with a need for an efficient trial.

20 JUDGE ORIE: Thank you for that. We'll see what we receive as new

21 assessment, new estimates and on what it is based. And, again, try to

22 keep in mind that when calculating that it should be perfectly clear what

23 the basis for the calculations is.

24 I take it that Defence counsel have not much to comment on this

25 but if you would please do so.

Page 368

1 MR. KEHOE: No, Your Honour. I believe as I mentioned yesterday

2 during the course of the 65 -- day before yesterday in the course of the

3 65 ter conference with Mr. Pittman, I mean obviously there are areas that

4 do warrant restriction. Going through the expert report that now takes

5 this case into Bosnia to the fall of 1995 certainly is not a subject of

6 this indictment. Obviously the evidence concerning the shelling of Knin

7 is --

8 JUDGE ORIE: That is it your responses to --

9 MR. KEHOE: Responses as far as the murder situation where -- and

10 all of those issues that I raised with Mr. Pittman. Those are all issues

11 that can significantly restrict this case. I mean --

12 JUDGE ORIE: I take it that Mr. Tieger is very glad that you are

13 giving the suggestions on how he could --

14 MR. KEHOE: Judge, I mean frankly -- for -- you're talking about

15 the Defence having to address 238 murders where there is no evidence that

16 my client knew about anything. That is an enormous piece of evidence that

17 we can to address.

18 JUDGE ORIE: Yes, I read that yesterday.

19 Mr. Kay, Mr. Mikulicic, no further comments.

20 Defence can be prepared that I take a similar approach that

21 whenever it comes to calculations or measurements, et cetera, I'm, as I

22 said before, of the arithmetic type rather than the vague and general

23 assessment type.

24 Let's move on.

25 MR. TIEGER: Your Honour, while the Court's considering that if I

Page 369

1 may, just two points in response to Mr. Kehoe's comments.


3 MR. TIEGER: Number one, the Prosecution has not expanded the case

4 to operations after Storm in the sense, that I think may have been

5 suggested by counsel. There are references to events that took place

6 there, but scattered for the purpose of showing very specific acts taken,

7 they are not time-consuming and they are not an expansion of --

8 JUDGE ORIE: Mr. Tieger, if I may interrupt you. I hope you

9 understood that I was trying to discourage Mr. Kehoe from entering into

10 any further details on these matters which are matters of substance rather

11 than the type of matters that we're discussing at this moment. And

12 therefore --

13 MR. TIEGER: I feel similarly discouraged. Thank you.

14 JUDGE ORIE: Thank you. Having dealt with the estimated length of

15 the trial, disclosure issues.

16 Of course, there have been a lot of disclosure issues being

17 discussed at the 65 ter conference. Sometimes it looked to me that there

18 was some malcommunication or misunderstanding. Are there any core

19 disclosure matters that are remaining and which could not be resolved

20 without the intervention of the Chamber, then I would like to hear about

21 them and see what to do about it and how to deal with the matter.

22 I'm, first of all, now addressing Defence. Mr. Kehoe.

23 MR. KEHOE: If I can turn to Mr. Misetic for this, please.

24 JUDGE ORIE: Yes, Mr. Misetic.

25 MR. MISETIC: Good morning, Your Honour, from our perspective we

Page 370

1 are working cooperatively with the Prosecution to resolve outstanding

2 discovery matters and I don't think there's anything that needs the

3 intervention of the Trial Chamber at this point.

4 JUDGE ORIE: Thank you, Mr. Kay.

5 MR. KAY: It hasn't been without problem and Your Honour would

6 have seen that from the notes of the meeting. It seems that progress has

7 been fairly substantially made.

8 A big outstanding issue is the translation of the experts' reports

9 into the Croatian language --


11 MR. KAY: -- because instructions have to be taken on these

12 documents. This is a large part of my concern on my ability to deal with

13 the case on the start date, because obviously instructions need to be

14 taken from people from Croatia and using a translated document is an

15 essential pre-trial tool.

16 JUDGE ORIE: Yes. The Chamber has inquired into the present

17 situation as far as translations are concerned, and I can inform the

18 parties that this looks rather good at this moment; there's only a very

19 limited number of pages still to be translated since the information was

20 received by the Chamber staff. If you would like to hear further details,

21 I would invite -- yes, I have got here following information.

22 I understood that there are 74 pages are pending in translation

23 from B/C/S into English, and that, at this moment, where there have been

24 translated 2.225 pages for OTP and registry from English into B/C/S that

25 there are no outstanding pages awaiting translation into B/C/S, which

Page 371

1 gives me the expectation that the expert reports -- but let me just have a

2 look, because the CLSS informed the Chamber staff that the translations of

3 the Theunens report which is of course the lengthy one, 700 pages, is

4 being carried out by the Prosecution's own translators; so therefore it's

5 not pending with CLSS. And CLSS told me that the Prosecution aims at

6 having it ready this Friday.

7 Mr. Tieger, could you confirm that.

8 MR. TIEGER: No, Your Honour, this matter was addressed

9 yesterday -- or Wednesday at the 65 ter conference. I indicated that we

10 had a target date and anticipated that the entirety of the report would be

11 translated by the end of February, that we would proceed in priority

12 fashion by translating the executive summary first, the -- part 2 of the

13 report which deals with --

14 JUDGE ORIE: Yes, you suggested that you would take a certain

15 sequence in having it translated.

16 MR. TIEGER: Correct. I understood from the response that at

17 least that sequencing was satisfactory with the Defence and that was

18 accurate as presented at the 65 ter assessment of the projected

19 translation date.

20 I should also add that the -- as a general matter the information

21 the Court received from CLSS refers to CLSS translations in an effort to

22 get the -- any translation backlog resolved as quickly as possible, we

23 balance the dual translation services available in the Tribunal and both

24 services are employed to the fullest extent possible.

25 JUDGE ORIE: Yes. That means that there seems to be some

Page 372

1 misunderstanding between CLSS and your translation services as far as the

2 progress made on the Theunens report is concerned.

3 Let me just.

4 [Trial Chamber and legal officer confer]

5 JUDGE ORIE: Well, I can't change that situation at this moment.

6 Mr. Kay, any need to comment on -- not to comment on what I said,

7 which apparently is based on a misunderstanding, but -- is there any way

8 of -- I don't know to what extent Mr. Theunens will be called early or

9 late during the proceedings. That of course is not final because I do

10 understand that merely calling a witness rather late or an expert rather

11 late doesn't resolve the problem as such because you should be aware of

12 the content of the report also in the early stages when that expert is not

13 yet called.

14 But, nevertheless any further comments.

15 MR. KAY: No, Your Honour has got the issues here that we need it

16 to take instructions which is the key point and also to use those

17 instructions during our development of issues in the trial before he's

18 called or after he's called which is why it is a matter of concern.

19 I just flag it up so that Your Honour knows that that is an issue

20 and hopefully this will not be a factor that inconveniences the early

21 stages of trial.

22 JUDGE ORIE: If finally that would be the case then we will see

23 it. But, Mr. Kay, you're also aware that Mr. Tieger seems to do his

24 utmost best to get the matter resolved, but I couldn't expect him to make

25 translations overnight.

Page 373

1 MR. KAY: No, I accept that.

2 JUDGE ORIE: Mr. Misetic.

3 MR. MISETIC: I assume we're talking on the topic of translations

4 generally and not just the Theunens report.

5 JUDGE ORIE: No, although that was an issue raised by Mr. Kay as

6 of specific concern. Yes.

7 MR. MISETIC: If we could get instruction from the Trial Chamber

8 generally on your protocol and procedure on this issue which is we have

9 many documents on the Defence side that are in Croatian that are not in

10 the Prosecution's files and therefore have not been translated, many of

11 which we intend to use in cross-examination of witnesses. We received an

12 instruction at a prior Status Conference not to overwhelm the translation

13 service by sending documents that may not be used in cross-examination.

14 At this point given that we don't know which witnesses are going

15 to remain after the invitation. If we could -- I don't know what the

16 Court has done in other cases with respect to the Defence making sure that

17 its documents are translated for cross-examination purposes, I would

18 propose somehow that my -- my idea was that we get some sort of a roster

19 from the Prosecution in advance in terms of some schedule or some

20 understanding of which witnesses are going to be called at point in the

21 case. We can then tender those documents in sequence to the translation

22 service to get them translated without binding the Prosecution to a

23 particular specific time but just so we get a general sense of which

24 documents we need to prioritize in terms of getting translated.

25 JUDGE ORIE: I think as a matter of fact that when the case was

Page 374

1 scheduled to start at a -- far earlier that the Prosecution had already in

2 mind who would be the witnesses to be called during the first six or eight

3 weeks. At least I do understand that at that time it was given already

4 quite some thought.

5 Mr. Tieger now asked for eight weeks in advance, so he must have

6 an idea of who will be the first witnesses. I also invited him to consult

7 with the Defence so in order not to present witnesses which would cause

8 the biggest problems as far as preparation for cross-examination is

9 concerned.

10 But may I take it that within one week from now that these

11 consultations will have taken place, that Mr. Misetic will have further

12 guidance as to what witnesses he could expect and then also adapt his --

13 adapt his approach of CLSS for translations, documents that you're

14 presenting in cross-examination, that that could be arranged.

15 In general terms, I would like to invite you that if it comes to

16 these kind of practical issues on how to get translations as quickly as

17 possible from CLSS, that you would address the Chamber's staff team

18 leader, who is not here at this moment -- he is following these

19 proceedings, but he is not here, that is Mr. Nilsson, Mr. Jonas Nilsson.

20 He'll send you his details so that you know and he is the person to focus

21 upon for these kind of matters.

22 Then any other issues, as far as disclosure and/or translation is

23 concerned?

24 MR. MIKULICIC: [Interpretation] If you'll allow me, Your Honour.


Page 375

1 MR. MIKULICIC: [Interpretation] Regarding disclosure and some

2 technical problems that have occurred in this regard, regarding the

3 uploading into the EDS system the Defence team case manager and those from

4 the Prosecution side held a meeting a couple of days ago where those

5 problems were to be addressed.

6 Your Honour, I don't want to brother you now with all the details,

7 but the subjects that were discussed were, among other things, the opening

8 of the e-court system where all the documents could be uploaded in an

9 orderly fashion. We have received information that as of a few days ago

10 our case was not a priority because there are some cases slated to begin

11 in February, we were told that the e-court would not be opened up until a

12 couple of weeks before the start of the trial. In light of the pace that

13 has been envisaged for this trial, it is scheduled to start relatively

14 quickly, we would like to ask the Trial Chamber to give appropriate

15 instruction so that the Defence can have the e-court system placed at its

16 disposal as soon as possible.

17 JUDGE ORIE: Yes, I do understand there are two issues. The first

18 was delays in uploading on the electronic database which at least that's

19 what I read in the transcript that has caused concerns and that this seems

20 to be addressed by now.

21 [Trial Chamber and legal officer confer]

22 [Trial Chamber and registrar confer]

23 JUDGE ORIE: You see we're really listening to you. An

24 application for opening the e-court system was made yesterday.

25 Uploading into e-court but, Madam Registrar, correct me -- correct

Page 376

1 me when I'm wrong, is usually done relatively quickly, at least if during

2 a trial there is any need for additional uploading into e-court that's --

3 I do not have experience that that causes major problems. But a meeting

4 will be held very soon now for the opening of the e-court system for this

5 case and may I take it, Madam Registrar, that whatever the result is, that

6 the parties will be informed about it without delay. Yes.

7 Any other matter in respect of disclosure and translations

8 although e-court, of course, is not a -- well, to some extent it is a

9 disclosure issue but only in a narrow sense.

10 Any other issue that we should raise in this respect? I'm looking

11 at the clock. I suggest that we have a break. And after the break I

12 would like to briefly go through the pending issues, pending motions that

13 might not take much time. It is sometimes to inform you, for example,

14 that we had wished to deliver decisions today but due to some health

15 problems, not serious health problems, but smaller health problems within

16 the Chamber we might have a delay for a couple of days.

17 But I would like to go through that list, at least to the extent

18 that the list is not confidential, confidential matters, of course, to be

19 addressed only in closed session or private session or to the extent where

20 there are any ex parte, if there are any ex parte motions pending, then of

21 course we will not address them in this Status Conference.

22 We resume at five minutes to 12.00.

23 --- Recess taken at 11.31 a.m.

24 --- On resuming at 12.01 p.m.

25 JUDGE ORIE: Mr. Tieger, may I ask you where you said you would

Page 377

1 accept the invitation what time you'd need to come up with a new 65 ter

2 list, witnesses, whether you reduce the number of witnesses whether you

3 reduce the number of hours. I saw that quite some witnesses with high

4 number of hours, in the area of 200 hours, as I said before. When do you

5 think you could provide such a new list?

6 MR. TIEGER: Well, ideally, Your Honour, I have already scheduled

7 a meeting to discuss that matter. I would like to consult with my team.

8 Any chance of getting back to the Court after that meeting an offering a

9 realistic projected time or does the Court wish me to identify a time now?

10 JUDGE ORIE: What would be ideas, what would be the ideas about

11 the outcome of that meeting?

12 MR. TIEGER: Well, my best guess is that it's a two- to three-week

13 process to do well, properly, and I know that is exactly what the Court

14 wants so ...

15 JUDGE ORIE: Yes. If you would manage to get it within two weeks,

16 I think that the Court would accept that. That's one.

17 Although, it should not keep you off from consulting with the

18 Defence on the first couple of witnesses or the first batch of witnesses,

19 to be presented.

20 MR. TIEGER: No, I understand.

21 JUDGE ORIE: Yes. Then unless I get other information, I expect

22 you to come up within the next two weeks with a new 65 ter list.

23 With also, of course, the new number of hours and if you would add

24 them right away, then it saves us the time of adding 138 or less.

25 MR. TIEGER: You can be assured I will never fail to tabulate the

Page 378

1 total number at the end of the listed number -- individual numbers.

2 JUDGE ORIE: Yes, thank you.

3 Then I earlier informed the parties that Mr. Nilsson would be the

4 team leader. I was not very precise, because he will be the team leader

5 on from the start of this trial. Until then, that also explains why he is

6 not here at this moment, but why Mr. Philip Dygeus is here of course

7 together with Mr. Pittman, the Senior Legal Officer. Would you please

8 address matters to both Mr. Nilsson and Mr. Dygeus at this moment because

9 he will do most of the work and he is in charge. But of course it could

10 have an impact on the trial at a later stage, so therefore, Mr. Nilsson

11 needs to be kept informed about whatever development but his main task at

12 this moment is still on the Haradinaj case.

13 Then, as I said before, we will move quickly through the pending

14 motions. There is a pending motion for request for certification to

15 appeal a decision on the alleged conflict of interest of Mr. Kehoe. We

16 would wished to deliver that decision already today, but as I said before

17 due to health reasons this has caused a delay, which are some difficulties

18 to say whether it will be two, three, four are or five days but a decision

19 will be there soon.

20 Then there are still pending motions by the Prosecution pursuant

21 to Rule 92 bis, 92 ter and 92 quater. I think during the 65 ter meeting

22 the Prosecution was invited to file further requests to the extent

23 possible, and I fully understand, Mr. Tieger, that often protective

24 measures issues come up upon the arrival of the witness in The Hague, but

25 of course sometimes you can foresee them well in advance. So, therefore,

Page 379

1 that invitation stands that you to the extent possible that you file

2 further motions.

3 I have to add to that, the is the practice in all chambers is not

4 exactly the same, but whether or not to call the witness to be

5 cross-examined is a decision which, in most of the cases, I'd prefer to

6 take together with my fellow Judges. That means that we are working on

7 the pending motions, all kind of practical matters we're analysing it but

8 final decisions might have to wait until I know who my fellow Judges will

9 be or at least we know what the majority of the composition of the Bench

10 will be because it has an impact on -- on making up your mind as far as

11 the judgment is concerned, which I think is not always appropriate so make

12 such determinations just as a Presiding Judge and confront the other

13 judges with it. If they disagree with that, then we would have to reverse

14 that and that's not an ideal situation.

15 Yes, I didn't mention earlier what has been raised several times

16 during discussions in the past about the length of the trial; that is work

17 among the parties on agreed facts and on applicable law. When we are

18 talking about the estimates at early stages, often it was said it could

19 even be better if we have finished our work on an agreed facts. And could

20 the parties inform me about whether any progress is made. It might have

21 an effect on your new 65 ter list or whatever aspect of the assessment of

22 the length of the trial.

23 But is any progress made at this moment? I don't know who to

24 address first.

25 MR. TIEGER: Your Honour, that was addressed in the 65 ter

Page 380

1 conference. I don't have anything in particular to add to that, except to

2 say that I indicated at the 65 ter that I would be providing the Defence

3 with three dossiers of documents that were essentially bundled or

4 categorised according to their particular source, and the reaction, the

5 initial reaction to that, in any event, was, as I understood it, quite

6 positive from the Defence. I don't want to speak for them and they may

7 want greater opportunity to actually review it, but I think at a minimum

8 there is no question that it will assist them in organizing their own

9 case, and more generally assist all parties in presenting and ensuring

10 that the case is presented to the Court in the most efficient manner.

11 That would be all I could add to what was presented at the 65 ter

12 conference and which I know the Court has already read.

13 JUDGE ORIE: Yes, if you provided the Defence with three dossiers

14 of documents, is it your intention then to introduce them into evidence at

15 a later stage as well, which we have seen now and then tendered from the

16 bar table or what exactly -- or do you seek agreement on that these are

17 authentic documents and that the source is not in dispute or what exactly

18 will be the role of those dossiers at trial.

19 MR. TIEGER: Well, I think our experience has been that attempting

20 to reach agreed facts on the weight, significance, inferences to be drawn

21 from the material in the documents is a very difficult process and really

22 is the heart of the process at trial. By contrast, identifying the

23 documents that relate to a particular category of witnesses or particular

24 body, and allowing them to be introduced and then permitting the parties

25 to --

Page 381

1 JUDGE ORIE: Comment on them more or less --

2 MR. TIEGER: Precisely.

3 JUDGE ORIE: -- without having--

4 MR. TIEGER: -- draw the inferences there and identify the weight

5 they think any portions of those documents should be given is much more

6 amenable to agreement and that is what we're trying to --

7 JUDGE ORIE: What you're then seeking with those dossiers is that

8 they are available to the Chamber, that the parties would comment on it,

9 that the parties would seek agreement as far as the source or the

10 authenticity of these documents is concerned, and that the debate will

11 then focus on what conclusions to draw together with all the other

12 evidence from those dossiers. Is that well understood?

13 MR. TIEGER: Yes, Your Honour.

14 JUDGE ORIE: Okay. Is there anything that the Defence counsel

15 would either in view of the dossiers or in any other respect as far as

16 agreed facts or agreement on applicable law is concerned.

17 MR. KEHOE: Your Honour, we haven't seen the dossier so it is

18 difficult to comment on them in the abstract. Theoretically, we can look

19 at the documents and maybe agree to some and not others, but I would

20 reserve comment on that until we get a chance to see it, naturally.

21 With regard to agreed facts, my colleague Mr. Misetic worked very

22 hard circulating a set of agreed facts to all parties. There have been

23 some comments back from the Prosecutor but they are still circulating

24 around and that's the position of General Gotovina on that issue right

25 now.

Page 382

1 JUDGE ORIE: Mr. Kay.

2 MR. KAY: Nothing further to comment other than it may be that if

3 the Prosecution are introducing the core bundles or core files, core

4 dossiers that the Defence may want to supplement them with other similar

5 materials so that the matters were fully in place.

6 JUDGE ORIE: Mr. Tieger, the suggestion is that the dossiers would

7 be dossiers composed of those documents considered of sufficient relevance

8 by the Prosecution but to be completed by irrelevant documents.

9 MR. TIEGER: I made the same suggestion yesterday in speaking with

10 the Defence.

11 JUDGE ORIE: Yes, fine.

12 Mr. Mikulicic.

13 MR. MIKULICIC: [Interpretation] Your Honour, I have nothing to add

14 on this matter.

15 JUDGE ORIE: Thank you then for that. Of course you will not be

16 surprised that the Chamber encourages the parties to seek whatever they

17 can do and preferably not at five minutes to 12.00 when the Prosecution

18 case is almost over then to reach -- to provide the Chamber with agreed

19 facts such as the date of birth of the accused or these kind of -- let's

20 try to see whether we can get some substantial agreement and otherwise if

21 you cannot do it, not to keep the Chamber in an expectation that something

22 would come up, whereas at the very end it turns out to be almost nothing.

23 Then I will -- I'd like to move on.

24 We have still a motion on the indictment and pre-trial brief --

25 the indictment and pre-trial brief related motions at this moment

Page 383

1 referring to what I said earlier, is that this motion gets full priority

2 of the Chamber at this moment to be decided.

3 There is a Prosecution motion to amend the exhibit list. That is

4 relatively recent. I cannot say anything more than that a decision will

5 be issued shortly.

6 I'd like to move into private session for a second or ...

7 [Private session]

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

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25 (redacted)

Page 384











11 Pages 384-398 redacted. Private session.















Page 399

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 [Open session]

14 THE REGISTRAR: Your Honours, we're now in open session.

15 JUDGE ORIE: Thank you, Madam Registrar.

16 I think there is one other motion pending and I have seen a draft

17 already, so again with the same limitation, there's a request by the

18 Cermak Defence for the modification of the provisional release conditions.

19 We have discussed it already partly, there is a draft but again

20 communication between the Judges at this moment is a bit hampered by

21 specific circumstances, but it will not take very long before the decision

22 will be issued.

23 The matter of Mr. Gotovina's provisional release has been finally

24 settled by the Appeals Chamber decisions yesterday so that doesn't need

25 any attention at this moment.

Page 400

1 So the only thing I would like to put on the public record and not

2 leave it to the 65 ter meeting is the way the parties and the Chamber

3 communicate, especially through e-mail. As has been said during the 65

4 ter meeting and to that extent it is repetitious but it also good for

5 everyone to know how we deal with the matter is that simple messages of a

6 practical nature containing no substance, they can be sent to the Chamber,

7 they can be copied to the Chamber, as long as it is transparent. That

8 means everyone should be copied on any communication with the Chamber

9 staff on the matter.

10 If there is some substance in the e-mail exchange; for example,

11 one party in an urgent situation asks for more time to respond to

12 something, or something like that, still not of real great substance, but

13 at least not without meaning for the proceedings, then, again, every party

14 should receive a copy of that e-mail so that it is fully transparent what

15 kind of communication has taken place, because whatever you send to the

16 Chamber's staff will be communicated in whatever way with the Judges. But

17 then by just referring to it on the record, it's clear that such

18 communication has taken place which has some relevance and impact and

19 everyone is then informed about the content of that communication.

20 If there would be something of more substance, then the parties

21 should file the e-mail communication, just the copies, the hard copies

22 should be filed so that not only the fact that a communication was there

23 but also the exact content of that communication is on the record.

24 These are the instructions of the Chamber as far as e-mail

25 communications is concerned.

Page 401

1 Is there -- I have nothing else on my list.

2 Mr. Tieger, is there anything the Prosecution would like to raise

3 at this moment?

4 MR. TIEGER: No, Your Honour.

5 JUDGE ORIE: Mr. Kehoe, Mr. Misetic.

6 MR. KEHOE: No, Your Honour.

7 JUDGE ORIE: Mr. Kay.

8 MR. KAY: No, Your Honour.

9 MR. MIKULICIC: No, Your Honour.

10 JUDGE ORIE: Thank you, Mr. Mikulicic.

11 This then concludes the Status Conference.

12 We stand adjourned sine die.

13 --- Whereupon the hearing adjourned at 12.50 p.m.