Tribunal Criminal Tribunal for the Former Yugoslavia

Page 59

 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

Page 60

 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

Page 61

 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

Page 63

 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

Page 64

 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

Page 65

 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.

Page 66

 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

Page 68

 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.

Page 69

 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

Page 70

 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

Page 71

 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

Page 72

 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

Page 73

 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

Page 74

 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.