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1 Monday, 15 October 2012
2 [Pre-Trial Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.00 a.m.
6 JUDGE DELVOIE: Good morning to everyone in and around the
7 courtroom.
8 Mr. Registrar, would please call the case.
9 THE REGISTRAR: This is case number IT-04-75-PT, the Prosecutor
10 service Goran Hadzic. Thank you.
11 JUDGE DELVOIE: Thank you very much. Can we have the appearances
12 starting by the Prosecution, please.
13 MR. STRINGER: Good morning, Your Honour. Good morning to all of
14 the Chamber. Douglas Stringer appearing on behalf of the Prosecution
15 with my colleague, Matthew Olmsted, and Case Manager, Thomas Laugel.
16 JUDGE DELVOIE: Thank you very much.
17 For the Defence.
18 MR. ZIVANOVIC: Good morning, Your Honour. For Mr. Goran Hadzic,
19 Zoran Zivanovic, lead counsel, with Mr. Christopher Gosnell, co-counsel.
20 Thank you.
21 JUDGE DELVOIE: Thank you.
22 Mr. Hadzic, can you follow the proceedings in a language you
23 understand.
24 THE ACCUSED: [No interpretation]
25 JUDGE DELVOIE: Thank you. I now wish to introduce to you the
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1 trial Bench. On my right-hand side, Judge Burton Hall and on my
2 left-hand side Judge Antoine Mindua. I myself am Guy Delvoie. Thank
3 you.
4 The parties were invited to submit items for the agenda of the
5 Pre-Trial Conference. We didn't get any suggestions from them.
6 This Pre-Trial Conference is held pursuant to Rule 73 bis in
7 order to make final arrangements for the commencement of the trial.
8 The first issue or item is the length of the Prosecution's case
9 in chief. The Trial Chamber has decided not to call upon the Prosecution
10 to shorten the estimated length of examination-in-chief of any of its
11 witnesses pursuant to Rule 73 bis (B), nor will the Trial Chamber
12 determine pursuant to Rule 73 bis (C)(i) the number of witnesses that the
13 Prosecution may call.
14 The Trial Chamber does intend to set a global time limit for the
15 presentation of the Prosecution's case in chief. It therefore will
16 invite the parties, sorry, to make submissions pursuant to Rule
17 73 bis (C)(ii) regarding the time that will be available to the
18 Prosecution to present its case in chief.
19 Mr. Prosecutor.
20 MR. STRINGER: Thank you, Your Honour. As Your Honours know and
21 as the Defence knows as well, recently an Excel spreadsheet was forwarded
22 at the Chamber's request that is sort of a very quick, convenient way of
23 determining the number of Prosecution witnesses that the Prosecution
24 proposes to put into the courtroom as well as the proposed lengths of
25 time for the direct examination of each of those witnesses, whether
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1 they're viva voce or a 92 ter witness. Of course the 92 bis and the
2 92 quater witnesses are not a part of this particular equation.
3 And pursuant to the information that's provided, Your Honours, as
4 you know, we are proposing a combined total of 170 court hours that would
5 apply to 85 witnesses that would be appearing under our proposal in the
6 courtroom for viva voce testimony or simply for cross-examination or
7 largely for cross-examination under 92 ter.
8 Your Honours, we think that this is a reasonable and justified
9 proposal. What we've seen, and I want to say that it's justified based
10 upon what we currently know. In some earlier submissions, Your Honours
11 may recall that as we've gone through the process of proofing and
12 obtaining the amalgamated 92 ter statements of witnesses so that those
13 can all be filed six weeks in advance, we've actually had a number of
14 occasions where the time anticipated for the direct examination has been
15 reduced. And we expect, I think it's reasonable to assume that that is
16 going to happen in other cases as well. Of course, to be candid there
17 may be situations in which we ask for more time as well.
18 For us, Your Honours, the issue is linked to the Chamber's
19 approach on the receipt of documentary evidence in the case, because if
20 you examine the list that's been provided, the witnesses for whom greater
21 periods of time are proposed for direct examination are largely the
22 witnesses for whom we envision tendering significant amounts of
23 documentary evidence. As the Chamber knows, its -- its strong
24 preference - it has been made clear to the parties - is to take only one
25 bar table motion at the end of the trial, and in fact the Chamber
Page 62
1 recently rejected our proposal of the Prosecution to submit a more
2 limited selection of documents at the beginning of the trial which we
3 thought would facilitate the earlier stages. So it's clear to us that
4 the Chamber doesn't want to deal with document motions under Rule 89
5 until the very end.
6 For us to be cautious and to be in the best position to present
7 all the relevant evidence to the Chamber, documentary evidence as well,
8 it's necessary for us to have the time then to lead as much documentary
9 evidence as we can in through the witnesses who will be appearing, and
10 that's why for some of the witnesses for whom we expect there to be
11 significant document work those are the ones for whom we're proposal
12 greater amounts of time on direct examination.
13 So that's the connection for us between the time for -- the court
14 time on one hand and the Chamber's policy on the admission of documentary
15 evidence. You clearly want -- you clearly have the preference for the
16 documents to come in through witnesses. That is, Your Honour, reflected
17 in the time estimates that we've proposed. Thank you.
18 JUDGE DELVOIE: Thank you very much.
19 Any submissions from the Defence?
20 MR. ZIVANOVIC: No, Your Honours.
21 JUDGE DELVOIE: Thank you. The Trial Chamber will issue its
22 decision on this matter shortly.
23 The Trial Chamber has decided not to reduce the charges in the
24 indictment pursuant to Rule 73 bis (D) and (E).
25 Could I ask Prosecution how much time it will need to make its
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1 opening statement pursuant to Rule 84?
2 MR. STRINGER: I would say two and a half hours, Your Honour.
3 Except to be honest and to be -- to make sure that the people in the
4 booths around are accommodated by my speaking slower than I normally
5 would, I'll say two hours and three-quarters, 2 hours, 45 minutes. I
6 can't see it going over three hours.
7 And I could add, Mr. President, that we intend -- there will be
8 slides in the form of PowerPoint in the course of which we are going to
9 be referring to a limited number of documents that are on the 65 ter
10 list, just five. There will be about five or six short video-clips of
11 two to three minutes' length, as well as some maps.
12 JUDGE DELVOIE: Thank you. I would like to remind the parties
13 that when tendering a document for admission into evidence, the parties
14 are to specifically indicate whether the document should be placed under
15 seal. The default position will be that all documents are to be admitted
16 publicly unless otherwise requested by the tendering party.
17 The Trial Chamber has two oral rulings, partial oral rulings, I
18 should say. The first one is a partial oral ruling on the Prosecution's
19 second motion for leave to amend its Rule 95 ter exhibit list.
20 On the 24th of September, the Prosecution filed a motion for
21 leave to amend its Rule 65 ter exhibit list. The Prosecution indicated
22 that it intends to show three of the documents for which leave is sought
23 to Witness GH-007, who is expected to testify this week. The Defence
24 objects to the addition of the document designated with proposal Rule
25 65 ter number 05972, but makes no objection to the addition of the other
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1 two documents.
2 The Chamber recalls that amendments to the Rule 65 ter exhibit
3 list may be granted when the interests of justice allow.
4 After considering the submissions of the parties, the Chamber is
5 satisfied that, taking into account the specific circumstances of this
6 case, good cause has been shown for amending the Prosecution's
7 Rule 65 ter exhibit list to include the documents designated with
8 following proposal Rule 65 ter numbers: 05967, 05968, and 05972. The
9 documents are relevant and of sufficient importance to justify addition
10 at this stage of the trial. The Chamber is satisfied that addition of
11 the documents will not result in undue prejudice to the Defence.
12 The motion is therefore granted, in part, and the Prosecution may
13 add the documents designated with proposal Rule 65 ter numbers 05967,
14 05968, and 05972 to its Rule 65 ter exhibit list. Issues as to
15 admissibility of the documents will be addressed at such time as the
16 documents are tendered.
17 And the Trial Chamber remains seized of the motion in all other
18 aspects.
19 The second ruling: On the 9th of October, the Prosecution filed
20 a motion for leave to amend its Rule 65 ter exhibit list. Prosecution
21 indicated that it intends to show two of the documents for which leave is
22 sought through Witness GH-003, who is expected to testify this week. The
23 Chamber recalls that amendments to the exhibit list may be granted when
24 the interests of justice allow. The Chamber is satisfied that taking
25 into account the specific circumstances of this case, good cause has been
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1 shown for amending the Prosecution's exhibit list to include the
2 documents designated with the following proposed Rule 65 ter numbers:
3 06200 and 06201. The documents are relevant and of such importance to
4 justify addition at this stage of the trial. The Chamber is satisfied
5 that addition of the documents will not result in undue prejudice to the
6 Defence.
7 The motion is therefore granted, in part, and the Prosecution may
8 add the documents designated with proposed Rule 65 ter numbers 06200 and
9 06201 to its exhibit list. Issues as to admissibility of the documents
10 will be addressed at such time as the documents are tendered.
11 The Trial Chamber remains seized of the motion in all other
12 aspects.
13 There are a number of motions pending for the moment. The
14 Trial Chamber prioritises the pending motions according to the order in
15 which witnesses will appear in court.
16 Just to mention a few: Prosecution motion for judicial notice on
17 adjudicated facts and documents; the Prosecution omnibus motion for
18 admission of evidence pursuant to Rule 92 bis; Prosecution omnibus motion
19 for admission of evidence pursuant to Rule 92 quater; the Prosecution
20 motion for admission of the evidence of Herbert Okun pursuant to
21 Rule 92 quater; and the Prosecution motion for the admission of the
22 evidence of Milan Babic pursuant to Rule 92 quater.
23 The Trial Chamber will issue decisions on these matters in due
24 course.
25 The trial will commence tomorrow, 16 October 2012, at 9.00 a.m.
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1 in this courtroom.
2 The trial shall commence with the opening statement of the
3 Prosecution pursuant to Rule 84. Immediately following the Prosecution's
4 opening statement, the Prosecution shall call its first witness.
5 The sitting times shall be as follows: Session 1, 9.00 to 10.30;
6 session 2, 11.00 to 12.15; session 3, 12.45 to 2.00 p.m.
7 Are there any other matters the parties would like to raise?
8 MR. STRINGER: Yes, Your Honour. There are -- well, it really
9 depends on whether the Trial Chamber wants to consider these at this time
10 or not. A few matters have arisen just over the last few days or so. I
11 know that the Chamber's legal officer has been -- is aware of those from
12 having been on the e-mail.
13 One of these relates to a Defence communication request for the
14 Prosecution to facilitate its meeting Prosecution witnesses before they
15 testify, and some letters were sent to the Chamber late Friday afternoon,
16 I think it was, on that.
17 There's another question about 56 or so documents which the
18 parties had agreed some months ago, and there is some, perhaps -- well, I
19 think there is disagreement about whether those should simply be admitted
20 since they're agreed or whether a Defence proposal to mark them for
21 identification and hold them should -- should be the procedure.
22 And, thirdly, there was -- there was an issue about whether the
23 Defence -- the Defence had indicated they were not willing to give any
24 earlier notice if they think that it may be necessary to ask for more
25 time to do a cross-examination. The Prosecution had asked if the Defence
Page 67
1 could give a seven-day advanced notice on that which would facilitate
2 witness scheduling if, in fact, a cross-examination is expected to go
3 longer than previewed under the Chamber's guidelines.
4 So those are three issues that are out there. I don't know
5 whether the Chamber wants to take them on at this point or whether we can
6 leave it for another time.
7 JUDGE DELVOIE: Just one minute, please.
8 [Trial Chamber and registrar confer]
9 JUDGE DELVOIE: I would suggest to the parties to hear their
10 submissions on the first and on the second issue. The third one we would
11 like to leave for the moment and see where we are. Is that okay with the
12 parties? Okay. Then Prosecution, first issue.
13 MR. STRINGER: The first issue relates to the Defence request to
14 meet with Prosecution witnesses.
15 My first point on this, and I've got, I think, three points,
16 Friday afternoon the Defence sent to the Chamber's legal officer
17 correspondence between the Prosecution and the Defence on this issue,
18 because we had -- it had been raised earlier, and we had been addressing
19 it. The correspondence was then sent directly to the Chamber along with
20 a covering letter, actually a letter back to me that was copied to the
21 Chamber which I had not seen before. It was sent to -- to Chambers, and
22 on this I just want to say that I'm troubled by the practice - I hope
23 it's not a frequent practice - of parties sending their letters -- their
24 own correspondence to the Chamber directly when the parties aren't able
25 to reach agreement on something. If the Chamber expects the parties to
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1 communicate candidly and to try to work things out, it's not going to be
2 advanced if, in fact, we're always writing letters on the expectation
3 that it could end up being sent to the Chamber.
4 My second point is --
5 JUDGE DELVOIE: Just -- just one moment, Mr. Stringer. Could I
6 have the Defence position on this particular point? I think it's
7 important for the future.
8 MR. GOSNELL: Well, Your Honour, we did consider whether or not
9 it was appropriate to forward the letter to the Chamber precisely for the
10 reasons that were expressed by the -- my learned friend, and having
11 reviewed the content, it didn't seem that there was anything particularly
12 sensitive in that letter that was uniquely inter partes.
13 Now, you know, having heard the Prosecution, we should -- we will
14 certainly exercise more caution in the future, but examining the letter,
15 the content of the letter itself, it did not appear to us that there was
16 anything sensitive or anything that couldn't or shouldn't be shared. And
17 given that the matter was somewhat urgent and needed to be dealt with
18 relatively expeditiously, we did decide to share not only our
19 correspondence, our letter, but also that of the Prosecution.
20 So again, not necessarily a practice we would follow, and having
21 now heard the Prosecution, we certainly will not adopt that practice in
22 the future. But given the content, we didn't think that there was any
23 prejudice or impropriety.
24 JUDGE DELVOIE: Okay. Thank you for that, Mr. Gosnell.
25 Prosecution.
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1 MR. STRINGER: I'm not troubled about anything I said in the
2 letter, it's more the practice, Your Honour.
3 On the question of urgency, it's, in our respectful submission,
4 not really an urgent matter. We've known for many, many months that
5 Prosecution witnesses would be coming to The Hague. In fact, months ago
6 the Defence identified a specific group of witnesses and asked if the
7 Prosecution would facilitate its meeting them. They asked to meet these
8 people, and we've had a number of correspondence back and forth over the
9 following weeks as we contacted and met with the witnesses, and so this
10 is something that's been going on throughout last summer, certainly. And
11 as a result of that, I know that the contact information for one witness
12 was given to the Defence because the witness agreed. One of the first
13 witnesses that will be appearing in this trial during the next couple of
14 weeks has agreed to meet with the Defence, and we're going to make that
15 happen.
16 Just within the last ten days or so, I think it was, the letter
17 came in saying: We want to meet every witness. And as the Chamber will
18 see, we wrote back. We had some reservations about it from a logistical
19 point of view, but we said that we would convey the Defence request to
20 all the witnesses as they are contacted about their travel, and we
21 would -- we would try to work it out. We did say that we didn't want
22 Defence interviews and meetings with witnesses to interfere with the main
23 purpose of their coming here, which is to give Prosecution evidence and
24 to be proofed. But their logistical issues, we've worked this out so
25 far. I think we can continue to work this out. And the Defence in their
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1 letter is proposing a protocol, a formal procedure, and that
2 the Victim and Witness Section get involved, and we don't think it's
3 necessary. We like to think we've worked well with the Defence on just
4 about everything so far, and I can assure the Chamber and my colleagues
5 on the Defence side that as we are in touch with the witnesses, we will
6 continue now as a matter of course for all of them to say: The Defence
7 has expressed an interest in speaking to you. And for those witnesses
8 who are -- who agree to do so, we can -- we can facilitate that and make
9 it happen, I guess.
10 I don't know that this is a matter that really needs direct
11 intervention from either the Chamber -- or from the victim/witness
12 section. That's our position, Your Honour.
13 JUDGE DELVOIE: Thank you. Can we hear the Defence.
14 MR. GOSNELL: Your Honour, the matter of concern that arose from
15 the letter from the Prosecution was a sentence in the very last paragraph
16 of the letter indicating that the Prosecution could not agree to this or
17 something along those lines. It was a somewhat vague formulation. It
18 wasn't clear what was being referred to. But the impression when one
19 read the letter was that the Prosecution was suggesting that it would not
20 permit meetings at all with Prosecution witnesses once they had travelled
21 to The Hague, although such meetings would be facilitated or permitted
22 before they travelled to The Hague.
23 Now, as Your Honours know, many of these witnesses' identities
24 have only been disclosed relatively recently. As a practical matter,
25 there was no possibility of meeting these witnesses prior to the start of
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1 trial, and as Your Honours also know from past practice, it is very
2 common for Defence counsel to meet with witnesses here in The Hague.
3 It's practical. It's cost efficient. It's a viable way of doing this.
4 Some of these meetings, I wish to underscore, will be very short.
5 They wouldn't take long. Others may take somewhat longer, but
6 nonetheless, we think the principle is important that we do have the
7 right to meet with these witnesses. This is established in
8 Appeals Chamber jurisprudence. And given the fact that we cannot meet
9 these witnesses before they come to The Hague, we do assert that right.
10 I'd also like to emphasise that I agree entirely with my learned
11 friend that we have been able to co-operate on many issues and I do hope
12 that we can co-operate to ensure convenient scheduling of such meetings
13 with these witnesses.
14 JUDGE DELVOIE: Thank you.
15 [Trial Chamber confers]
16 JUDGE DELVOIE: Mr. Gosnell, one -- one little question: Is
17 there any particular reason why you should want to -- why you should want
18 VWS to intervene?
19 MR. GOSNELL: The practice of VWS being involved has been applied
20 in some cases, possibly as few as one, Your Honour.
21 JUDGE DELVOIE: And you know that VWS didn't want to intervene.
22 MR. GOSNELL: I do understand that, Your Honour. The one
23 advantage of VWS being involved is that it does give a neutrality to the
24 request. It ensures that the request is presented in a neutral way to
25 the witnesses; whereas otherwise the request might appear to be unusual
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1 or perhaps inappropriate. So there is that advantage in having VWS
2 involvement, and of course they are routinely -- they routinely contact
3 these witnesses, so the opportunity arises when they have that contact.
4 And, secondarily, we became concerned at the express by the
5 Prosecution that essentially there would be no time whatsoever or no time
6 or little time or it's not convenient. And frankly, Your Honour, that
7 set off alarm bells that we would be squeezed out of the opportunity to
8 meet with such witnesses. We know the scheduling of these meetings with
9 these witnesses has been a concern in some prior cases - it has - and,
10 again, I hope that we could deal with it directly with the Prosecution to
11 ensure that we can have those meetings in an appropriate way, but the
12 back-up or if that doesn't work, then VWS is there for that purpose
13 potentially.
14 JUDGE DELVOIE: The Trial Chamber does not feel the need for the
15 moment to intervene in this matter. I think it is essential for the
16 trial that a good co-operation exists between the parties and that the
17 Trial Chamber should only intervene when really there is no other
18 solution for these kind of issues. So I would suggest that the parties
19 try to get an agreement on this and that if this does not seem possible,
20 well, in that case we could eventually give you our decision on the
21 matter. Okay.
22 The second issue, Mr. Stringer.
23 MR. STRINGER: The second issue, Your Honour, relates to what I
24 believe are 56 documents that were agreed. As Your Honours know, we've
25 got a number of agreed facts that were agreed earlier. The Chamber was
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1 receiving our various reports on agreed facts, and there were a number of
2 documents that were agreed in the process of that, and that should have
3 been included in one of the reports on agreement that were being filed at
4 the time, and we omitted to identify those documents from the -- in the
5 joint reports that the parties were filing at the time. And the
6 Chamber's legal officer discovered this right around the same time that
7 we did.
8 So there are 56 documents out there that are agreed by the
9 parties. Our proposal is to simply admit them. They are agreed. They
10 were agreed at the time. The trial starts tomorrow. We're going to have
11 to start admitting evidence sooner or later, and again it's -- it would
12 simply be the logical thing to do since there's agreement.
13 Now, the Defence is proposing to mark them for identification,
14 hold them back. We saw a number of sort of qualifications and other
15 conditions that possibly could attach. The Defence proposed to simply
16 hold them until the end at the time of this bar table motion.
17 It's the Prosecution's position that the 56 documents were
18 agreed, and that's the agreement reached by the parties. It was -- it
19 was agreement reached after the parties engaged in the discussions that
20 the Chamber encouraged us to engage in, and the documents should be
21 admitted.
22 JUDGE DELVOIE: Thank you. For the Defence, please.
23 MR. GOSNELL: Your Honour, there's no fundamental disagreement
24 here in principle. What we indicated in our letter was that we have no
25 objection to recognising the documents as authentic but that we could not
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1 accept necessarily their probative value in relation to either being the
2 facts on the ground or necessarily being the applicable instrument at the
3 time. So that was our position.
4 The only reason why we suggested waiting until the bar table
5 motion was simply as a matter of procedural propriety or convenience
6 because we knew that the Chamber wished to have a single block of
7 documents admitted, and we promised I think unequivocally not to object
8 at that time. So that was the basis of our position. If the Chamber
9 considers that they should be admitted now, then that's -- subject to
10 what we've said about probative value, we accept that.
11 [Trial Chamber confers]
12 JUDGE DELVOIE: We will discuss this and come back to you later.
13 So if that's all, and I think it is, I thank the parties for
14 their appearances. This -- this Pre-Trial Conference is adjourned.
15 --- Whereupon the Pre-Trial Conference adjourned
16 at 9.36 a.m.
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