Tribunal Criminal Tribunal for the Former Yugoslavia

Page 265

1 Friday, 28 November 2003

2 [Pre-Trial Conference]

3 [Open session]

4 --- Upon commencing at 9.30 a.m.

5 THE REGISTRAR: Case number IT-01-47-PT, the Prosecutor versus

6 Enver Hadzihasanovic and Amir Kubura.

7 JUDGE ANTONETTI: [Interpretation] Thank you. Would the accused be

8 brought in, please.

9 [The accused entered court]

10 JUDGE ANTONETTI: [Interpretation] Thank you. You may be seated.

11 Could we have the appearances again, please. For the Prosecution.

12 MR. WITHOPF: Good morning, Your Honour, again; good morning,

13 Defence counsel. Again for the Prosecution appear Mr. David Re, trial

14 attorney, on my right-hand side; Ms. Kimberly Fleming, case manager, on my

15 left-hand side; and I, Ekkehard Withopf, Senior Trial Attorney.

16 JUDGE ANTONETTI: [Interpretation] Thank you. The Defence for

17 Mr. Hadzihasanovic.

18 MS. RESIDOVIC: [Interpretation] Good morning, Your Honours. For

19 General Hadzihasanovic, Edina Residovic, attorney from Sarajevo; my

20 colleague Mr. Stephane Bourgon, an attorney from Montreal; and our legal

21 assistant Mirna Milanovic.

22 JUDGE ANTONETTI: [Interpretation] Thank you. On behalf of

23 Mr. Kubura, please.

24 MR. IBRISIMOVIC: [Interpretation] On behalf of Mr. Kubura,

25 Fahrudin Ibrisimovic, Mr. Rodney Dixon, and our legal assistant.

Page 266

1 JUDGE ANTONETTI: [Interpretation] Thank you. Could the accused

2 stand, please.

3 Mr. Hadzihasanovic, could you introduce yourself, tell us your

4 identity, your name.

5 THE ACCUSED HADZIHASANOVIC: [Interpretation] My name is Enver

6 Hadzihasanovic.

7 JUDGE ANTONETTI: [Interpretation] Your date of birth, please.

8 THE ACCUSED HADZIHASANOVIC: [Interpretation] I was born on the 7th

9 of July, 1950 in Zvornik.

10 JUDGE ANTONETTI: [Interpretation] What is your address?

11 THE ACCUSED HADZIHASANOVIC: [Interpretation] I now live in

12 Sarajevo, in Trampina Street number 6.

13 JUDGE ANTONETTI: [Interpretation] Your profession?

14 THE ACCUSED HADZIHASANOVIC: [Interpretation] By profession I was a

15 general of the army of Bosnia and Herzegovina. Since 2000 I am a

16 pensioner. I retired.

17 JUDGE ANTONETTI: [Interpretation] Thank you. Thank you. You may

18 be seated.

19 Mr. Kubura, would you please introduce yourself once again.

20 THE ACCUSED KUBURA: [Interpretation] Your Honour, Amir Kubura,

21 born on the 4th of March, 1964 in Kakanj. I am living in Sarajevo,

22 Topalosman-Pase Street number 22, an officer of the army of the

23 Federation.

24 JUDGE ANTONETTI: [Interpretation] Thank you. You may be seated.

25 This Pre-Trial Conference, pursuant to Rule 73 bis of the Rules of

Page 267

1 Procedure, has an agenda which is as follows: The Chamber must, following

2 indications from the Prosecution determine the number of witnesses that

3 they intend to call, protective measures that may be required for some of the

4 witnesses, the order in which the witnesses are going to appear, the

5 duration of the testimony of each witness, the estimated length of

6 testimony, the number of witness statements and transcripts of prior

7 testimony pursuant to Rule 92 bis of the Rules, to possibly indicate the

8 timetable proposed for the submission of documents.

9 The Chamber also needs to be informed regarding the current status

10 with respect to the disclosure of documents pursuant to Rule 66(A) of the

11 Rules, also to inform the Chamber of the progress made in translating the

12 documents into one of the working languages of the Tribunal, and to

13 indicate where we stand regarding the disclosure of exculpatory material

14 pursuant to Rule 68 of the Rules.

15 The Chamber now consists of one Judge only due to the fact that 66

16 ter (C) and 73 bis of the Rules allow the Pre-Trial Judge to be alone

17 during the Pre-Trial Conference.

18 Before giving the floor to the Prosecution regarding the various

19 items of the agenda, I should like to address the question regarding the

20 problem of agreement on points of fact and law pursuant to Rule 66 ter

21 (H). During the last Status Conference, I asked the parties to

22 communicate and to tell the Chamber in writing which are the points of law

23 and fact on which an agreement had been reached or which are in dispute,

24 and this morning the Chamber received a motion from the Prosecution

25 concerning the difficulties encountered in this procedure due to the fact

Page 268

1 that the Defence for Mr. Kubura did not produce any document.

2 I would like to recall that the Prosecutor provided a list of

3 facts. These points were provided to the parties. The Defence counsel

4 for Mr. Hadzihasanovic did respond in writing, indicating that it would

5 agree on points -- on certain points as well as series B, series C, and

6 series F, points 3 and 12, for series H points 32 and 34, and J point 1.

7 On the other hand, the Defence also produced a document to the

8 Prosecution regarding the points on which the Prosecution should agree,

9 but the Prosecution indicated that the points mentioned are not directly

10 related to the facts submitted to the Chamber. That is where we stand for

11 the moment.

12 And regarding the points of agreement and disagreement, I should

13 like first to give the floor to the Prosecution, after which I will give

14 the floor to the Defence.

15 Mr. Prosecutor, you have the floor.

16 MR. WITHOPF: Your Honour, the issue of stipulations is a very,

17 very serious one and it will have a very serious impact on the proceedings

18 in this trial.

19 You are referring to the two filings, to the detailed submissions

20 in the two filings of this week, namely the Prosecution's notice to the

21 Trial Chamber concerning the lack of agreement and, number 2, the motion

22 requesting the Pre-Trial Judge to order Defence counsel to file

23 submissions pursuant to Rule 65 ter (H). The facts have in great detail

24 been outlined in the filings. They speak for themselves.

25 The Prosecution has come to the view that the Defence, quite

Page 269

1 contrary to their repeated announcements, is not willing, not willing to

2 confine the issues litigated. There is no reason for the Prosecution to

3 litigate to the Defence proposed submissions. Almost all facts, almost

4 all of the proposed facts are quotes from the Blaskic and from the Kordic

5 and Cerkez Trial Chamber judgement, a few ones from the Kupreskic

6 judgement.

7 THE INTERPRETER: Could the counsel please slow down.

8 MR. WITHOPF: They in great detail describe the crimes committed

9 by the HVO against the Muslim population in Central Bosnia. Such proposed

10 stipulations indicate the Defence may raise a defence based on the tu

11 quoque or reprisal principle. The Tribunal's jurisprudence is quite clear

12 in that respect. Neither the principles of tu quoque nor reprisals

13 constitute a defence. Such a defence has no basis in the law.

14 The Prosecution does not stipulate to the Defence proposed

15 admissions beyond the few ones the Prosecution did for a number of

16 reasons. Number one, because such proposed submissions stipulate to

17 factual findings from other cases that are not in issue in this case,

18 meaning that they cannot have any bearing on the resolution of this case.

19 Stipulations would be meaningless.

20 Number two, such factual findings are irrelevant to the third

21 amended indictment; and even more important, number three, such factual

22 findings are currently under appeal.

23 My colleague Mr. Re will now continue to detail any further issues

24 and to detail the result the current situation may, and probably will

25 have, on the further proceedings.

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1 JUDGE ANTONETTI: [Interpretation] Thank you.

2 MR. RE: The Prosecution is gravely concerned at the lack of

3 agreement between the parties despite the Prosecution's earnest, earnest

4 endeavours over the last month to obtain some agreement as to the issues

5 which should not be in dispute in a case which is purely based upon

6 command responsibility, that is, the liability of the accused for the acts

7 under 7 -- Article 7(3). It is for this reason the Prosecution has filed

8 two documents in the last week; firstly, the notice to the Trial Chamber

9 setting out the situation and attaching the two proposals from both sides,

10 and following the breakdown, so to speak, of talks between the two

11 parties, an exhortation to the Trial Chamber to intervene and to order the

12 Defence to file written submissions pursuant to Rule 65 ter (H) as to

13 basically why they will not stipulate to matters which in the

14 Prosecution's submissions simply should not be in dispute in this trial.

15 The Prosecution, pursuant to talks with the Defence which have

16 been going for some time over the last few months and which the

17 Prosecution and the Defence addressed in a 65 ter conference many months

18 ago, the Prosecution provided the Defence with an advanced copy of its

19 pre-trial brief in the first week of September, which was almost five

20 weeks before we filed our full pre-trial brief.

21 The Defence have been on notice for over two years as to, in broad

22 terms, the case against the two accused, and over the past two years, the

23 Defence -- the Prosecution has served on the Defence thousands of

24 documents, including our 1.200 or so proposed exhibits. The indictment

25 has been amended several times. It's got smaller, with the exception of

Page 272

1 the Miletici allegation against Mr. Kubura, but the evidence was -- or the

2 allegation was already there.

3 The Prosecution says there is no reason why the Defence should not

4 be able to stipulate to some of the most basic issues which are -- which

5 should not be litigated in this trial.

6 If Your Honour looks at the document which the Prosecution filed,

7 and the Defence response, Your Honour will notice a -- the response of the

8 accused Hadzihasanovic, Your Honour will note that the agreement so far

9 seems to be entirely random. The Defence will stipulate to some matters,

10 some personal matters in relation to both accused, the Defence will

11 stipulate in the series which the Prosecution outlined of the A series,

12 which is those relating to Mr. Hadzihasanovic.

13 The Defence will stipulate to A.1, 2, 3, 6, and 8. Now, this is

14 significant in the terms of what's happening. 8 is on the 14th of

15 November, 1992, Enver Hadzihasanovic was made the commander of the 3rd

16 Corps of the army of Bosnia and Herzegovina. Flowing from that, under

17 international law, a person in the accused's position assumes certain

18 responsibilities.

19 The Prosecution has outlined three of those in A.17, A.18, and

20 A.19. A.17 is at all times relevant to this indictment. Enver

21 Hadzihasanovic was required to abide by the laws and customs governing the

22 conduct of armed conflicts, including the Geneva Conventions of 1949 and

23 the Additional Protocols thereto.

24 A.18, that the accused Enver Hadzihasanovic was responsible for

25 ensuring that military units under his command and effective control

Page 273

1 respected and applied these international rules -- these rules of

2 international law.

3 And 19, that he was obliged by superior order to initiate

4 proceedings for legal sanctions against individuals under his command and

5 effective control who had violated the International Law of War.

6 In the Prosecution's respectful submission, Your Honour, those

7 three things we have asked the Defence to stipulate to are no more than a

8 statement of international humanitarian law, yet three weeks after the

9 Defence has had our fairly detailed proposals which are based only upon

10 the indictment, the pre-trial brief, and the evidence we have served over

11 the last two years, they cannot even stipulate to those three most basic

12 features which must flow from a stipulation to A8. If you are the

13 commander, you must assume the responsibilities in 17, 18, and 19.

14 The Prosecution, quite frankly, Your Honour, is mystified as to

15 why so long after we filed or gave them a copy of the pre-trial brief, an

16 advance copy, and gave this lengthy document which is divided down line by

17 line to enable the Defence to consider each separate thing. One thing

18 leads to another. How far will you go? Well, the Defence won't even go

19 to, as we say in colloquial terms, first base. That is, for example, that

20 the 3rd Corps had a certain structure. The Defence so far will stipulate

21 to nothing relating to the structure of the 3rd Corps, not even to the

22 fact of the establishment of the 3rd Corps by government decree. They

23 will stipulate to nothing relating to government regulations or decrees,

24 which are things the Tribunal could take judicial notice of.

25 The Prosecution has to ask: What is going on? Why, on the day of

Page 274

1 the Pre-Trial Conference, four days before the trial commences, are we in

2 this situation? Which brings me to the ramifications.

3 The failure of the Defence to agree to the most basic of the

4 stipulations has left the Prosecution and the pre-trial -- Your Honour and

5 the Chamber in an invidious situation. We don't know what evidence we

6 have to call to prove our case. We don't know what documents we have to

7 tender.

8 As Your Honour is appreciative, until this point, the

9 Prosecution's documents have been in English and B/C/S. English, of

10 course, being one of the working languages of the Tribunal. If the

11 Prosecution does not know which documents it has to tender to prove its

12 case, it does not know which documents it has the -- the Trial Chamber

13 will not know which documents have to be translated into the other working

14 language of the Tribunal, thus putting -- which means at the moment the

15 Prosecution must tender all of them, thus presenting the Tribunal, that is

16 the Tribunal as a whole, with great resource dilemmas.

17 As it stands, the Prosecution must prove -- the Prosecution of

18 course knows that it must prove its case and doesn't cavil in any way with

19 that, but the Defence must take a sensible approach to stipulations and

20 confining the issues at trial as to those which are not or should not be

21 in issue in a case which is one purely of command responsibility.

22 Other ramifications will be -- will be on the evidence which is

23 called, the number of witnesses the Prosecution has to call, and the

24 number it can call either under 89(F) or 92 bis. It just doesn't affect

25 the Prosecution, it affects the Tribunal as a whole. It affects the

Page 275

1 Victims and Witnesses Unit; it affects the Trial Chamber's consideration

2 of matters; it affects Your Honour's determination today as to which

3 witnesses the Prosecution can call, which crime base witnesses we can

4 call, in what order, and how long we can call them for. If we can't get

5 any agreement on the most basic of details, such as the deaths of people

6 and even the manner of death, we will have to start right at the beginning

7 and go through the whole thing, one after the other. It's a

8 determination, in my submission, Your Honour will have a great difficulty

9 in making today without knowing what the issues are before Your Honour.

10 JUDGE ANTONETTI: [Interpretation] Very well, Mr. Prosecutor.

11 Thank you.

12 So it emanates from the comments by the Prosecution that regarding

13 the points of agreement or disagreement on facts and points of law, the

14 Prosecution is currently in a position when it doesn't have from the

15 Defence, with the exception of a few cases, any specification, and as a

16 result of that, the Prosecution is having difficulties concerning the

17 calling of witnesses, the order of witnesses and, therefore, the conduct

18 of the trial as such regarding the evidence to be called by the

19 Prosecution. Therefore, the Prosecution is conveying a serious problem

20 that it has.

21 Of course, the Chamber needs to hear the Defence on these points,

22 too. And the Defence, if it wishes, may agree with the Prosecution, but

23 it may also not agree on any of those points. And it is up to the Defence

24 to take a position in accordance with its own interests. And if the

25 Defence does not agree in any respect with the Prosecution, it is up to

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1 the Prosecution to call the witnesses that it wishes to call.

2 I shall now give the floor to Defence counsel for

3 Mr. Hadzihasanovic first.

4 MS. RESIDOVIC: [Interpretation] Your Honour, we looked at the

5 problem in the sense it has been posed by the Prosecution, but we had just

6 two days to do that. At the previous Status Conference, we discussed the

7 facts, and one particular fact that we had received 165 pages just one day

8 in advance, with about 1.200 points which the Prosecution offers to

9 discuss and to try and find an agreement on.

10 Now, bearing in mind first and foremost the rights of our client

11 to a fair trial and an expeditious trial, we have invested maximum efforts

12 to ensure that we have deliberated the document in detail, and we have

13 done our best to help reach an agreement and send in to the Prosecution

14 everything that the Defence counsel has to say with respect to the facts,

15 and we have done this in good faith. You drew our attention to that at

16 the previous Status Conference.

17 After a detailed examination of the matter in hand, we said that

18 as this is a vast document indeed, compiled in such a way which has not

19 been customary thus far before this Tribunal, and for the most part

20 following future solutions in which the Prosecution offers us all the

21 facts which he intends to prove, we nonetheless approach this problem by

22 carefully looking at all the facts set out. And we said that we should do

23 our best to comply with the 15-day deadline. However, the task was far

24 greater than you could have expected us to get through realistically, and

25 I think you, Your Honour, said words to that effect at the previous Status

Page 278

1 Conference, and I think you were fully conscious of that task.

2 Both Defence teams worked on issues that they could confirm

3 jointly, and we informed the Prosecution on time, within the deadline,

4 that all the facts we agree with we will supply in a short space of time.

5 But we also emphasise that this was a hefty process of coordination and

6 agreement and that we should continue to work along those lines. And in

7 that sense, by a joint Defence brief, we agreed to 29 points set forth,

8 and at the same time emphasised that we would continue our discussions

9 about the possible acceptance by the 26th of November of the others,

10 because as you know, none of the members of the Defence team actually

11 lives in The Hague, which means we cannot plan our time for discussions

12 the way in which the Prosecution can and the OTP, who is here permanently.

13 Unfortunately, after this lengthy work done by us and our

14 readiness to continue to negotiate and discuss additional points, we were

15 faced with a letter which had already been addressed to you in which the

16 Defence is placed in the position of being responsible for not having

17 coordinated and dovetailed additional facts.

18 I have had quite a long time of experience working in the law, and

19 I consider that discussions between the Defence teams and the Prosecution

20 must always be in good faith and done in a professional manner.

21 The way in which the Prosecution on this occasion has conducted

22 itself towards the Defence seemed to us to be an invitation that this

23 professional relationship be translated into something else, something

24 which we do not wish to see, and that is a conflict between us with

25 respect to issues we have to work on together if this trial is to be a

Page 279

1 fair one, and that is why we reject methods of this kind. At this point

2 in time, we have provided the Prosecution with everything that we were

3 able to agree on fully by the deadline. We're still working along those

4 lines to look through and study all the facts presented to us and

5 disclosed to us by the Prosecution, and we consider that it is up to the

6 Trial Chamber to assist and support this process of further harmonisation

7 and coordination.

8 I should just like to ask my colleague Mr. Stephane Bourgon to

9 present some concrete facts to clarify the position that the Defence finds

10 itself and has been finding itself over the past month. Thank you.

11 JUDGE ANTONETTI: [Interpretation] Thank you, Ms. Residovic.

12 Mr. Bourgon.

13 MR. BOURGON: [Interpretation] Good morning, Mr. President.

14 JUDGE ANTONETTI: [Interpretation] Good morning, Mr. Bourgon.

15 MR. BOURGON: [Interpretation] Following the statement by my

16 colleague in response to the arguments presented by the Prosecution, I

17 should just like to underline a few measures that we took with a view to

18 facilitating the process of stipulation with our colleagues from the

19 Prosecution.

20 First of all, the Prosecution tells you that we have received

21 their documents, that is the pre-trial brief, within a shorter time limit

22 so as to enable us to come to an agreement regarding certain admissions of

23 fact. This document was given to us, and we have studied that document,

24 and we were already then ready to engage in discussions regarding possible

25 admissions of fact.

Page 280

1 Shortly after that, the Prosecution notified us of their intention

2 to serve documents on us which would contain proposals for stipulations,

3 and we agreed with that, and we informed the Prosecution that we would

4 wait for that document before going forward with the stipulation process.

5 This document was served on us on the 4th of November, which means after

6 the filing of the pre-trial brief on the 10th of October and after the

7 filing of the Defence pre-trial brief on the 3rd of November.

8 On the 4th of November, we were, therefore, seized of this

9 document which contains 1.200 proposed stipulations.

10 Since the beginning of this pre-trial procedure, we have

11 communicated with the Prosecution. We have conveyed to them our

12 intention, as far as possible, to make stipulations so as to allow the

13 proceedings to be rather short but which would at the same time be a fair

14 one and which would respect the rights of the accused.

15 This position on the part of the Defence has not changed today.

16 We are still of the opinion that we are ready to contribute to this

17 process, and we are interested in making stipulations so as to allow the

18 Chamber to make progress more rapidly with the proceedings. Nonetheless,

19 within this context we also provided the Prosecution with a document, a

20 document entitled "Stipulations Proposed by the Defence." In that

21 document, as noted by the Prosecutor, we find facts which were already the

22 object of judgements in other cases, that is in the Blaskic case, in the

23 Kordic case, but also in other cases which are not under appeal, such as

24 Kupreskic, Furundzija, and other cases.

25 The aim of the Defence in giving this document to the Prosecution

Page 281

1 was also in a spirit of cooperation to allow the Prosecution to also make

2 certain stipulations to alleviate our burden but also to alleviate the

3 cross-examination of its own witnesses. If the Prosecution were to make

4 certain admissions regarding the facts that we proposed, in our opinion

5 this could considerably reduce the questions that would be put in the

6 cross-examination of these witnesses.

7 The Prosecution tells us in a document that was mentioned by my

8 learned colleague that the Defence -- that the Prosecution believes that

9 the Defence is going to apply a reprisal defence or a defence based on the

10 tu quoque principle. First of all, Mr. President, it should be noted that

11 the Prosecution has no reason whatsoever to try and qualify or to mention

12 to the Chamber what will be, according to it, the defence that we will

13 make in the course of the trial.

14 However, even if the Defence wished to apply the principle of

15 reprisal or tu quoque principle, we are not in a stage where we are going

16 to argue on the admissibility of a certain kind of defence. However, it

17 should be noted that the Prosecution said today that our arguments are not

18 relevant, that the admissions that we're asking from the Prosecution are

19 not relevant and that those stipulations apparently have nothing to do

20 with the case that we are concerned with. And our response to that, Mr.

21 President, is either that the Prosecution has not understood at all the

22 doctrine of command responsibility or it doesn't wish to. But we are not

23 declaring either of these options to be the one we're asserting. It could

24 be a third one.

25 However, we do assert that in our opinion, the stipulations that

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1 we proposed to the Prosecution are facts within the context and within the

2 situation in which the accused were put, that is as military commanders in

3 an armed conflict, a highly complicated armed conflict, about which you

4 will obtain all the details during the presentation of the evidence. And

5 when it comes to judging the responsibility of the commanders to see,

6 first of all, whether, yes or no, he was responsible for certain troops,

7 then the context is very important.

8 When it comes to the question of demonstrating to this Chamber

9 whether the accused knew or had reason to know what was happening among

10 the troops under his control, then the context is of primordial

11 importance. When it comes to showing to the Chamber whether the accused

12 took measures which were necessary and reasonable to remedy the situation

13 or to prevent the commission of crimes, the context is again, in our

14 opinion, of prime importance.

15 In view of that, we take note of the refusal of the Prosecution to

16 make stipulations in accordance with our suggestions, and consequently

17 we're going to present to this Chamber a motion that the Chamber take

18 judicial notice of these facts which have already been proven and

19 adjudicated in other trials, other cases. Obviously, we would prefer to

20 engage in this same process but in a friendly manner, in a professional

21 manner, in discussions with the Prosecution to come to an agreement on

22 certain facts, to avoid us having to submit, to address yourselves to you,

23 Mr. President, regarding admission of facts that have already been proven

24 in trials conducted by the Office of the Prosecutor, which is unique and

25 which stands for all the Prosecutions.

Page 284

1 So when we hear the Prosecution say that we are acting in bad

2 faith, that we are not serious, that we do not wish to make any

3 stipulations, I think that is not a good way of describing the discussions

4 we had before you, of describing them to you. To link up with the

5 stipulations that are required of us by the Prosecution, I could perhaps,

6 Mr. President, suggest that you look at the three points mentioned by the

7 Prosecutor today.

8 The Prosecutor mentioned A.17, A.18, and A.19. These are points

9 of fact which the Prosecutor considers to be part of the law. If the

10 Prosecutor believes that these are points -- part of the law, why do we

11 need to stipulate on them? If those points are so evident, so obvious,

12 why are we asked to make stipulations on these points? The question,

13 Mr. President, is we feel that these three points, which are not part of

14 the admissions that we made in a document of the 24th of November are

15 points which are, in our opinion, it is not possible on the 24th of

16 November to make an admission, a stipulation. And to tell you today,

17 Mr. President, we agree with these three points. These three points have

18 an incidence, an effect, we believe, on the responsibility of the

19 commander. And we also believe they have an effect on the relationship

20 that could have existed between the two accused in this case.

21 Before being able to pronounce ourselves on these points, in our

22 opinion, we need to be able to discuss these matters first with the

23 representatives of the co-accused in this case, to then take a position

24 which would be common and in the interest of the accused and then to meet

25 with the Prosecutor to discuss these points with them face-to-face.

Page 285

1 I refer to the letter of the 24th of November, which was sent to

2 you in an annex with the opinion of the Prosecutor last Tuesday. In this

3 letter, we made several admissions, and we indicated our wish to continue

4 the process, and we also indicated that certain admissions or stipulations

5 simply required an adjustment in terms of words. It is easy to launch a

6 document of 1.200 facts and to expect a yes or no answer. We believe that

7 in a face-to-face meeting between professionals, we could indicate to the

8 Prosecutor that we are ready to stipulate on an additional point, but

9 perhaps two or three words need to be changed. But one cannot do that

10 without having a really professional meeting.

11 And on this point, Mr. President, you will be able to note that in

12 the admissions filed or proposed by the Prosecution, as was correctly

13 stated by the Prosecutor, there's line-by-line the evidence that they

14 intend to produce, the burden of proof, line by line according to the

15 indictment.

16 Since we are on this subject and this is not something that we

17 need to discuss before you, we feel, but the 1.200 facts proposed to us

18 are often taken from documents that will be presented before this Chamber.

19 And we believe that the text that was added within these 1.200 proposals

20 by the Prosecution does not always reflect, at least not always, the

21 verbatim text of those documents. So you can imagine, Mr. President, that

22 when one compares a document that we have, and we know that it will be

23 produced in evidence, and then we have a stipulation and then there's a

24 difference between the words used in the two. So to be able to make the

25 bridge between the document and the proposal of the Prosecution, we need

Page 286

1 to meet to discuss it, which is what we intended to do on Wednesday, that

2 is two days ago, and we appeared with the intention to have a discussion,

3 and I think this is referred to in our response. We filed a response to

4 the opinion of the Prosecution in which we said that we were ready to

5 discuss the following facts: A4, C1, C3, C25, D3, D4, D5, D6, D7, G6, G7,

6 G8, G61, G71, G72, G73, G75, G77 and G79. It is not possible to tell you

7 today that we would have come to an agreement on each of those points, but

8 we were ready to discuss them.

9 JUDGE ANTONETTI: [Interpretation] Will you please slow down

10 because of the interpretation.

11 MR. BOURGON: [Interpretation] We were ready to discuss these

12 things. And I'm not in a position to tell you today whether we would have

13 come to an agreement but we were in good faith, and I have the text before

14 me here that I could maybe even present to the Judge, that is the text

15 that we thought we could propose to the Prosecution with a view to

16 accelerating the proceedings.

17 Two conclusions, Mr. President: The first regarding the matter of

18 resources. The Prosecutor refers to a theme throughout its request, that

19 is in its opinion of last Tuesday and the motion filed this morning, a

20 repetitive theme regarding the resources of the Tribunal.

21 Mr. President, if there is someone in this hall, people in this

22 hall who are fully aware and who have even suffered because of certain

23 restraints during the last 12 months, then they are representatives of the

24 Defence. I will not go into the detail, because they have already been

25 the object of debate, however, I can tell you that this question was a

Page 287

1 heavy burden for the Defence, and it prevented us on many occasions from

2 going forward more quickly. Nonetheless, the proceedings begin today. We

3 are now at the Pre-Trial Conference, and the trial itself will begin on

4 Tuesday.

5 We would like, and we wish to express our wish today that the

6 trial evolve as quickly as possible and that we can focus truly on the

7 questions in dispute. In order to be able to do that, we believe,

8 Mr. President, that the Prosecution is able to indicate today the

9 witnesses it will call in evidence. Where there is a problem - and we

10 would like there not to be any problems, but where -- if there is a

11 problem is if the Prosecution wants to call a witness and the Defence

12 stands up and tells you, "The Defence has no questions," at that point one

13 could say there we have a problem, because then we have asked a witness to

14 come from ex-Yugoslavia, to appear here before you, to spend days in The

15 Hague spending resources, whereas in fact the Defence has no questions for

16 him. Then we would be liable to criticism, criticism which we would

17 accept, but we submit that that will not happen.

18 When on the 13th of November the Prosecutor asked us what are we

19 going to do with our witnesses from Dusina, what are we going to do with

20 our witnesses, should we call them? We are facing a difficult situation.

21 In our opinion, this was already the beginning of animosity, but we

22 responded immediately, saying the witnesses that you have envisaged for

23 Dusina, you can call them because we do need to cross-examine them. In

24 this connection, the Prosecutor knows which are the witnesses they will

25 begin with, because they've already told us that they will begin with

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Page 289

1 Dusina, so we don't see any cause for alarm or we do not see any crisis

2 that the Prosecutor is attempting to convey to you this morning. They

3 know which witnesses they can call, and we are going to continue to

4 participate in this debate openly, professionally, and to make

5 stipulations.

6 But if the Prosecutor asks us today do we have other stipulations

7 to make, for the moment - and I speak for the Defence of General

8 Hadzihasanovic - we have no other stipulations to make today. For today,

9 we have communicated the stipulations that we are ready to make. We have

10 a series of stipulations that I've referred to and that we are ready to

11 discuss with the Prosecution which could facilitate the proceedings at the

12 beginning but which will have no impact on the witnesses that need to be

13 called or the documents that will be tendered. And professionally, we

14 hope that we will be able to continue this debate and this discussion with

15 the Prosecution.

16 JUDGE ANTONETTI: [Interpretation] Thank you. I shall now give the

17 floor to the Defence counsel for Mr. Kubura regarding the same question.

18 Mr. Dixon.

19 MR. DIXON: Thank you, Your Honour. Your Honour, briefly, and

20 with the greatest respect to my learned friends from the Prosecution, I

21 think much too much is being made of this matter. I cannot underline

22 enough that the admissions that have been made are only a first stage, and

23 if I can at this point clarify that the admissions that have been made

24 have been made on behalf of Mr. Hadzihasanovic and Mr. Kubura. There are

25 joint admissions, they are 30 altogether, and that was conveyed to the

Page 290

1 Prosecution, that they are admissions made on behalf of both of the

2 defendants.

3 But they are a first stage in the proceedings, as was outlined in

4 previous Rule 65 ter meetings with your Senior Legal Officer. And even as

5 Mr. Withopf said in the last Status Conference, if we could get from the

6 Defence admissions on a rolling basis, so according to how the Prosecution

7 is going to present their case, and we can take it step-by-step. It's a

8 mammoth task, simply put, Your Honour, to try and now at the beginning of

9 the trial agree or not agree on all of the facts in the case. And that is

10 the way we've approached the matter for Mr. Kubura. We obviously, as Your

11 Honour knows, did not have to look at the matter of Dusina as he's not

12 charged with that, but we have looked at the general matters that pertain

13 to him relevant to the beginning of the case, and we've looked at

14 Miletici, which he is charged with, and we have at this stage made the

15 admissions that we can make.

16 We are now going to be going on to Maline and to the others after

17 that and we will then make further stipulations to the Prosecution, and I

18 think this is a process that the Prosecution should have been aware of.

19 This is not an end of the matter as far as we're concerned.

20 Your Honour, we would therefore request you to allow the parties

21 to continue on this process of seeing what stipulations can be made, and

22 where no agreement can be reached, then it's for obvious reasons, and it

23 is then for the Prosecution to present their case.

24 We do find it difficult to understand how if the Defence hasn't

25 made admissions the Prosecution doesn't know what evidence they have to

Page 291

1 lead. It's precisely because we are not agreeing to facts that we are

2 saying you must prove those matters, and it's then for the Prosecution to

3 present their case.

4 Finally, Your Honour, in respect of the stipulations which the

5 Defence has put forward for the Prosecution to admit or not, our basic

6 point is if the Prosecution can tell us as soon as possible whether they

7 do admit those points or not. In our submission, at this stage it's not

8 relevant to discuss what are the inferences that can be drawn from those

9 facts, how they can be used. That's a matter for trial. At this point

10 all we wish to know is whether those facts are admitted or not, because if

11 not, then other actions are going to have to be taken.

12 Thank you, Your Honour.

13 JUDGE ANTONETTI: [Interpretation] Very well. Thank you.

14 Regarding the question raised by the motion, the Chamber notes today that

15 the Prosecution is expressing fears regarding the continuation of the

16 proceedings because the Prosecution, they say, is not able to have a

17 precise understanding of the witnesses it should call and the facts or

18 points of law which, due to a specific response from the Defence, they

19 say, still remain ambiguous.

20 The Defence unanimously tells us that today there is some 30

21 points which are not in dispute and which could be admitted out of the

22 1.200 points that were proposed by the Prosecution. The Defence wishes to

23 continue this process of discussion with the Prosecution with a view to

24 avoiding, as they say, the expenditure of Tribunal resources

25 inappropriately to the extent that witnesses cited by the Prosecution may

Page 292

1 not be cross-examined, and that is why the Defence requests that the

2 Prosecution amends certain terms in the 1.200 points so that they can come

3 to an agreement.

4 So that would summarise the position of the Defence. On the other

5 hand, the Defence for Mr. Hadzihasanovic has notified the Chamber that it

6 has submitted to the Prosecution also a certain number of facts which

7 require no comment from the Prosecution, whereas the Prosecution says that

8 these facts are not related to the trial that is beginning on Tuesday,

9 though the Defence indicates that these facts are relevant for the

10 context.

11 Therefore, the Chamber is going to render, following the motion, a

12 written order, and I would like to indicate the substance of it.

13 The Chamber is going to invite the Defence and the Prosecution, by

14 Monday at 5.00 p.m., to meet in order to find possible new points of

15 agreement and to indicate in a document addressed to the Chamber on Monday

16 at 5.00 p.m. the final position of the Defence regarding the 1.200 points

17 proposed by the Prosecution. Therefore, you will have this afternoon and

18 all of Monday, until 5.00 p.m., to find a solution. If no solution is

19 found, the trial will begin on Tuesday as envisaged, but then, of course,

20 it will be up to the Prosecution, as excellently indicated by the Defence,

21 to prove through its witnesses the facts alleged in the indictment.

22 Therefore, that would be the ruling of the Chamber regarding this point.

23 And you will have this order very shortly.

24 We will now move on to the next point. However, in view of the

25 time, we are going to have a brief adjournment to allow the interpreters

Page 293

1 to rest unless the Prosecution wishes to intervene once again on this

2 point.

3 Yes, Mr. Withopf.

4 MR. WITHOPF: Your Honour, the Prosecution will keep its

5 observations very short. We heard the lengthy interpretation by the

6 Defence teams, in particular by the Hadzihasanovic Defence team on this

7 issue. The interpretation is one side, the facts are the other side, and

8 the facts in this case speak for themselves.

9 What are the 1.200 proposed admissions? The 1.200 proposed

10 admissions are nothing else but details that are contained in the

11 indictment, details that the Defence knows since more than two years.

12 They are, in addition, details from witness statements, witness statements

13 which have been disclosed to the Defence on an ongoing basis, many of them

14 many months ago, and they are details of documents which have been

15 disclosed to the Defence at the very early stages of the proceedings. I

16 am referring to the so-called Sarajevo collection. This has been made

17 available to the Defence at the very, very early stages of the

18 proceedings.

19 The Prosecution is very appreciative for the suggestion you have

20 made, Your Honour, to meet and to continue to discuss any potential

21 stipulations. The Prosecution was always inviting Defence, on a permanent

22 and repeated basis, to meet and to discuss stipulations. Defence

23 indicated in respect to their proposed admissions that they may or may not

24 file a motion for judicial notice, inviting the Trial Chamber to take

25 judicial notice.

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Page 295

1 The Prosecution, I can already announce it now, will respond to

2 this motion seeking dismissal of the motion. The Prosecution is of the

3 view that the facts as proposed by the Defence are neither common

4 knowledge nor are they adjudicated facts. They are not adjudicated facts

5 because the vast majority of such facts are still under appeal.

6 In respect to the translation of documents, one of the main points

7 Defence for the accused Hadzihasanovic was trying to make, I again

8 emphasise such documents have been made available to the Defence since

9 months. It is the first time today the Defence raises any translation

10 issues.

11 And I also wish to emphasise that most -- the vast majority of the

12 details in the document on proposed admissions, the vast majority are

13 details that stem from witness statements, witness statements very well

14 known to the Defence since many years.

15 The Prosecution understands that Defence may in respect to the one

16 or the other proposed fact may not be in a position, may not be in a

17 position to say yes or no. For that purpose, Your Honours, the

18 Prosecution has provided to the Defence the document on proposed

19 admissions in an electronic version in order to allow, to allow the

20 Defence to change and to alter such admissions and to come back to the

21 Prosecution. Defence didn't do.

22 Because of the unwillingness and unpreparedness of Defence to do,

23 to finally do what they announced since many months, we are left with the

24 current situation which creates huge difficulties not only for the

25 Prosecution as outlined by my colleague Mr. Re, but also for the Trial

Page 296

1 Chamber, and such difficulties we are facing at the very beginning of the

2 trial.

3 The Prosecution again invites, based on the announced order by

4 Your Honour, invites Defence to meet Prosecution and to now come to a

5 conclusion what their position will be, and of course by 5.00 the latest

6 on Monday such a filing will be filed.

7 Thank you very much.

8 JUDGE ANTONETTI: [Interpretation] Very well. Thank you. So the

9 Chamber has taken note of what the Prosecution has just said. We are now

10 going to adjourn for 15 minutes, and we will resume at ten to eleven.

11 --- Recess taken at 10.34 a.m.

12 --- On resuming at 10.54 a.m.

13 JUDGE ANTONETTI: [Interpretation] Let us now examine the question

14 of the number of witnesses that the Prosecution intends to call. Having

15 said that the Prosecution has already provided the Defence with a list of

16 witnesses, and in that list we have 134 -- we had 134 witnesses, and at

17 the last Status Conference the Prosecution told us that they had ten or so

18 more witnesses, and in view of the fact that there was no agreement

19 reached on facts, is the Prosecution in a position to tell us the number

20 of witnesses that they intend to call?

21 MR. WITHOPF: Your Honour, you are very well aware of the

22 difficult situation the Prosecution is in. As you mentioned, the

23 Prosecution has currently 134 witnesses on its list. The Prosecution is

24 forced to, at this point in time, work on the assumption that it has to

25 call all witnesses as listed in its witness list attached to the pre-trial

Page 297

1 brief.

2 In addition to the 134 listed on our list, we will, as repeatedly

3 announced, call an expert witness -- a military expert witness, namely

4 General Rheinhardt. In respect to the witness list, two out of the 134

5 witnesses unfortunately have died, one of them only recently. These are

6 the ones as listed in the witness list as annexed to the Prosecution's

7 pre-trial brief under numbers 5 and 13. In respect to such witnesses, we

8 will file respective motions under Rule 92 bis (C) in the near future.

9 That means there are still 132 witnesses on the Prosecution's

10 witness list and the military expert. Only recently -- addressing the

11 issue of potential additional witnesses, only recently, two weeks ago, the

12 Prosecution interviewed, or started to interview a number of additional

13 potential witnesses; more concrete, about eight of such individuals. Not

14 all of such individuals will be added to the witness list, maybe the one

15 or the other. That means that we are at this point in time, we are

16 talking about some 135 witnesses on the Prosecution's witness list.

17 To date we have received 25 declarations under Rule 92 bis (B).

18 We anticipate, as we already announced in the course of the last Status

19 Conference, to get some ten to 15 more within the first few weeks after

20 the commencement of the trial.

21 Summarised, the Prosecution intends to call, based on the current

22 situation we are in, intends to call about 95 to 100 witnesses live.

23 Thank you.

24 JUDGE ANTONETTI: [Interpretation] Thank you. Therefore, as of

25 this day you intend to call 100 viva voce witnesses and about 40 other

Page 298

1 witnesses pursuant to Rule 92 bis. And with respect to

2 89(F) witnesses, you're not going to avail yourself of that possibility.

3 Now, with respect to the number of witnesses that you gave, two

4 are deceased, and without any objection from the Defence, we hope perhaps

5 you're going to have written testimony by these witnesses tendered.

6 So it is 5 and 13 of those. That's what you told us.

7 So at this stage, with respect to the fact that you said you would

8 be bringing about 100 witnesses, would the Defence like to make any

9 observations on that score?

10 MS. RESIDOVIC: [Interpretation] Your Honour, before I answer your

11 question, I would like to tell you that both Defence teams discussed the

12 issues raised by you on the agenda today and with full respect for your

13 time and joint stands with respect to individual issues, we shall be

14 presenting the joint views of the two Defence teams, and I myself will be

15 presenting our views for the Hadzihasanovic Defence team and Brigadier

16 Kubura as well.

17 The OTP disclosed to us on time lists of witnesses. We have

18 nothing to add with respect to that matter except to say that we have

19 heard today that the Prosecution will probably be adding to that list a

20 number of other witnesses. As we have heard, he is negotiating this

21 possibility with eight individuals. It is our common stand that finally,

22 after more than two years since the first initial appearance of the

23 accused before the Tribunal, the Prosecution should provide us with the

24 final list of witnesses he intends to call.

25 With respect to Rule 92 bis, we have just heard from the

Page 299

1 Prosecutor that he wishes to use 425 -- this 425 witnesses and we have

2 already told the Prosecution that we should like to ask him to tender a

3 request so that in conformity with Rule 92 bis (A) to (F) [as

4 interpreted], he provide reasons, stipulate the reasons for which he

5 considers those statements should be accepted, because then we have the

6 possibility within a space of a seven-day time limit to respond to the

7 proposal made by the Prosecution.

8 For the purposes of better understanding the positions taken by

9 the Defence, although I don't think this has been challenged, all we wish

10 to say is this, that the statements of these witnesses in fact, as

11 interpreted by the Defence, are just facts which testify to the fact that

12 the witness would repeat what he has set out in his written statement if

13 he were called to testify orally. However, the weight and truthfulness of

14 that testimony and its credibility will be weighed up together with all

15 the other evidence, and that is of course the -- what the Trial Chamber

16 has to do. So the Defence considers that these are not adjudicated facts,

17 but we do accept that the statements which are presented before the Court

18 are statements by those individuals which they would have given if they

19 were here physically and presented their testimony orally.

20 So that is our position respect to the two issues raised by the

21 Prosecutor. Thank you.

22 JUDGE ANTONETTI: [Interpretation] With respect to Rule 92 bis

23 witnesses, the Chamber is fixing the 18th of December as the limit for the

24 response by the Prosecution, and the Defence is also invited to make its

25 observations by the 12th of January, because as you know, we're going to

Page 300

1 have a pause of several weeks. There will be a recess at the end of

2 December until the beginning of January, court recess, and so the

3 Prosecution has the deadline of the 18th of December, whereas the Defence

4 has been given the 12th of January as a deadline pursuant to Rule 92 bis

5 (B) witnesses.

6 With respect to witnesses, the Chamber would like to suggest at

7 this stage that either the Prosecution or the Defence possibly, or perhaps

8 the Chamber itself, pursuant to Article 89, that it brings in an expert in

9 history in order to place matters in the political and historical context

10 of the events and the acts committed. I haven't seen any name put

11 forward, but if the Prosecution hasn't thought about it, perhaps the

12 Defence could give thought to it. If neither side do, then the Trial

13 Chamber can call such a witness itself, after we have heard debate and

14 discussion, and then we would call a witness of that kind pursuant to the

15 Rule allowing the Chamber to call witnesses.

16 So that is a proposal on my part to both parties, to the

17 Prosecution and the Defence.

18 Now, unless there is anything -- yes.

19 MS. RESIDOVIC: [Interpretation] Mr. President, may I just inform

20 you that we have already taken steps and asked the Registrar and received

21 confirmation for us to bring in an expert witness who would be speaking of

22 the historical context within the Defence case, and that would be one

23 expert on the part of the Defence brought in. Thank you.

24 JUDGE ANTONETTI: [Interpretation] The Prosecution has the floor on

25 this issue.

Page 301

1 MR. WITHOPF: The Prosecution suggests that the Chamber calls,

2 pursuant to Rule 98, an expert of such nature proprio motu.

3 JUDGE ANTONETTI: [Interpretation] Thank you. Now, I'd like to go

4 on to the next point, which is the protective measures which may be sought

5 in respect of witnesses.

6 MR. WITHOPF: Your Honour, to emphasise it, from the outset in

7 this trial protective measures for Prosecution witnesses are, in

8 comparison to many other cases, likely not to be a major issue. Out of

9 the 132 witnesses currently on the list, 15, only 15 for the time being

10 have assigned pseudonyms. I refer to the numbers 3, 35, 55, 72, 78, 81,

11 86, 96, 100, 103, 104, 106, 108, 107, and 130 on the confidential witness

12 list.

13 We would not even be surprised if at the end of the day there may

14 be less such witnesses, even less for the following reason: We made the

15 experience that once the trial team lawyers talked to the witnesses and

16 explained to them the situation in respect to Rule 75 and any protective

17 measures, such witnesses are quite often very confident and very prepared

18 to drop their request for protective measures. If at all, there may be a

19 few instances of assignment of pseudonyms and face and/or voice

20 distortion. In such instances, we shall inform the Chamber in sufficient

21 time in advance.

22 There are a few insider-type of witnesses that may or may not

23 request additional protective measures under Rule 75. The number of such

24 witnesses will be limited, even presumably very limited.

25 At this point we wish to point out that the Defence got all but

Page 302

1 one of our OTP witness statements; the military expert obviously will not

2 request any protective measures.

3 JUDGE ANTONETTI: [Interpretation] Very well. Thank you. Now with

4 respect to the protective measures, the Chamber has been informed of this

5 in advance, and we would like to see the motions handed in to us one or

6 two days before the witnesses arrive, because then we can put into place

7 all the technical protective measures necessary in order to ensure

8 protection for the witnesses. So I invite the Prosecution to let us know

9 as early on as possible if they would like measures to be put in place of

10 that kind.

11 Now -- yes, Mr. Withopf.

12 MR. WITHOPF: Your Honour, there's a practical -- it's a purely

13 practical issue. Most of such witnesses would only arrive the day prior

14 to their testimony, and the Prosecution trial team's lawyer will only have

15 a chance to talk to the majority of such witnesses only the day prior to

16 their testimony. We, of course, are very interested to give you the

17 respective information as early as possible, but there may be instances

18 that we can only provide you with the necessary information the day

19 before.

20 JUDGE ANTONETTI: [Interpretation] Very well, yes. Thank you for

21 that. But of course you can telephone them, perhaps, and certain

22 witnesses do have mobile telephones. So you can come into contact with

23 them by telephone perhaps.

24 Having said that with respect to the order of witnesses, you have

25 advised me of the planning for the next three weeks, from the 8th to the

Page 303

1 10th of December, and the 15th to the 18th of December. So you have

2 estimated the number of witnesses to be called during that time period.

3 So we have a plan for our work already and with respect to hearings for

4 those witnesses.

5 Now, grosso modo, there will be one day per witness, roughly

6 speaking. Would that be right? So we now have a project for the coming

7 three weeks, and it would be advisable for the months to come that we

8 could have a document of that kind, a plan which will allow us to plan for

9 January, February, et cetera, and the coming months.

10 Can the Prosecution enlighten us on that score with respect to

11 proceeding in this way? Thank you.

12 MR. WITHOPF: Right. Your Honour, as Defence already have the

13 witness scheduled for the first three weeks of the trial prior to the

14 winter recess, we are aiming at, to admit, December and provide you with a

15 similar list for the month of January.

16 As can be seen from our list, the Prosecution will commence trial

17 with so-called crime base witnesses in relation to Dusina, in relation to

18 Miletici, and Maline and Bikosi in exactly this order. There will be

19 additional crime base witnesses in respect to the three crime scenes I

20 just mentioned, to the three crime bases I just mentioned, and we

21 anticipate that the Prosecution will have called all such witnesses by the

22 day the Prosecution will call its military expert. The military expert

23 will be called on Monday, the 26th of January, 2004.

24 After the examination of the military expert, and we anticipate

25 the Defence will cross-examine the military expert, and the military

Page 304

1 expert is informed that he has to make himself available for three days

2 starting the 26th till the 28th of January, the Prosecution anticipates

3 that it will continue with crime base witnesses following the order of the

4 indictment. That would mean we will continue with the crime base

5 witnesses related to the crimes in the detention facilities, then we would

6 call in the witnesses in relation to the destruction and plunder crimes,

7 and finally, we would call the witnesses in relation to the damage to the

8 religious institutions.

9 We are planning to, at the end of the trial, to call the so-called

10 international witnesses, international witnesses as previous ECMM

11 monitors, as UNPROFOR, predominantly BritBat members, and other

12 internationals.

13 Your Honour are certainly aware that quite a number of such

14 witnesses are still serving soldiers, serving soldiers in high ranks being

15 dispersed all over the world, literally all over the world. We may face

16 situations, and it's likely to happen, that we have to call the one or the

17 other international witness in between different crime scene witnesses.

18 However, we are aiming to have the witnesses being called for each section

19 as much as possible, thus trying to avoid to jump from one crime base to

20 the other one and trying to avoid that too many international witnesses

21 have to be called in between the different crime scenes.

22 That, in a nutshell, is the rough outline how we like to present

23 the case, all based on the assumption that there will be no further

24 stipulations by the Defence.

25 JUDGE ANTONETTI: [Interpretation] Thank you. We now have a plan

Page 305

1 of work presented to us by the Prosecution, and we're going to have

2 witnesses that were sited where the places were given, at Dusina,

3 Miletici, et cetera, and we're going to have an expert witness, a military

4 one, and other witnesses who are going to be fact witnesses. And the

5 Prosecution has proposed to call, finally, international observers as

6 witnesses. So we have a plan which is fairly precise and detailed for the

7 weeks to come.

8 Having said this, we come to another question, and that is the

9 duration of the Prosecution evidence pursuant to 73 (B) (C) (i) and (E)

10 [as interpreted] on the basis of a calculation for testimony on the basis

11 of one day per witness, roughly. If we look at the number of witnesses

12 we're going to have, 100 plus 40, pursuant Article 92 bis, having received

13 that information, the Chamber can now fix in conformity with that and with

14 the Rules of Procedure and Evidence a total duration of Prosecution

15 evidence pursuant to 73 bis, Rule 73 bis, to fix here and now a maximum

16 deadline on the 1st of June, 2004. That would be the date for the

17 duration of the Prosecution case.

18 As you know, if additional time proves to be necessary pursuant to

19 Rule 73 bis (E), then the Prosecution can send in a motion asking for more

20 time, and the duration of time provided for has to take into consideration

21 the presentation of the case itself plus six months, and that would be the

22 time accorded. But I would like to set the date as being the 1st of June,

23 2004 for the Prosecution case. If the Prosecution feels it necessary to

24 extend that time, that is, of course, possible.

25 So would anybody like to make any observations with respect to the

Page 306

1 date I have just quoted? Yes, the Prosecution has the floor.

2 MR. WITHOPF: Your Honour, the Prosecution is fine with the date

3 you've just mentioned. It actually matches exactly the duration of the

4 presentation of the Prosecution's case the Prosecution has announced once

5 they filed their pre-trial brief. Of course the presentation of the

6 Prosecution case depends on the duration of the cross-examination of the

7 Prosecution witnesses by the Defence. Your Honour made already a

8 reference to the respective provision under Rule 73 bis (E), if necessary,

9 I repeat, if necessary, the Prosecution would make use of this provision.

10 JUDGE ANTONETTI: [Interpretation] The Defence. Ms. Residovic.

11 MS. RESIDOVIC: [Interpretation] Your Honour, of course the length

12 of the duration of the trial and the presentation of the Prosecution case

13 is something that the Prosecution has already set out, and you have made a

14 ruling on that as the Trial Chamber. The Defence presented some of its

15 views, but the Defence does not wish in any way to make any criticisms or

16 comments with respect to a ruling which has been reached between the Trial

17 Chamber and the Prosecution presenting the case.

18 However, as far as the Defence is concerned, there's one question

19 that remains unsolved, and that, with the adoption of the new method of

20 payment for the Defence team, has remained unsettled.

21 This is what it is about: Rule 98 bis determines the right

22 accorded to the Defence that after the Prosecution case has gone forward,

23 it can make proposals to make an acquittal decision on some or all counts

24 in the indictment. The new Rules state that this right, motion for

25 judgement of acquittal, could be used by the Defence case in the course of

Page 307

1 the presentation of the Prosecution case. And we should now like to ask

2 you, Your Honour, to tell us whether this means that by the 1st of July,

3 one month or two months will be set - this has been the practice - and

4 given to the Defence to present its final document after it has heard the

5 Prosecution case, or is the date that you gave us the time when the

6 Prosecution finishes its Prosecution case?

7 So as there's a slight discrepancy between what Rule 98 bis states

8 and the new way in which the lump sum and payment of attorneys is

9 established, we should like to ask the Trial Chamber to consider this

10 matter and to give us its decision and ruling pursuant to that. Thank

11 you.

12 JUDGE ANTONETTI: [Interpretation] Very well. Your question has

13 two aspects, in fact. There is the question linked to the implementation

14 of Rule 98 bis regarding the date by which the motion for acquittal may be

15 filed and the question of remuneration.

16 So I will answer also in two sections. The first: Rule 98 bis is

17 very precise. It says that an accused may file a motion for the entry of a

18 judgement of acquittal on one or more offences charged in the indictment

19 within seven days after the close of the Prosecution's case.

20 So if the end of the Prosecution case will be the 1st of June, you

21 will have seven days after the 1st of June, except if the Prosecution

22 files a motion to extend the time, then the time will run from the date

23 that will be fixed in response to a motion from the Prosecution.

24 Therefore, regarding the first aspect, there are no problems. It

25 is very precise. As soon as the Prosecution evidence has been presented,

Page 308

1 and it will be noted that there will be no more evidence or witnesses for

2 the Prosecution, from that point on the time will begin to run, that is,

3 the seven days within which you may file a motion for a judgement of

4 acquittal. That is the first point.

5 The second: You're linking the question of remuneration of

6 Defence attorneys with this date. Regarding this question, as you know,

7 the remuneration is within the terms of reference of the Registry.

8 Therefore, it is to them that you should address yourself. And the

9 Chamber has no competence with respect to questions of remuneration.

10 Ms. Residovic.

11 MS. RESIDOVIC: [Interpretation] Your Honour, could I please

12 elaborate on what I said, namely, it is quite clear that Rule 98 bis gives

13 us a time limit of seven days. Then the Prosecution has time to respond,

14 then comes oral argument, and a final ruling of the Court. This may last

15 one month, more or less, depending on the motion itself and the pleadings

16 of the two sides, but the time limits are fixed by the Rules of this

17 Tribunal.

18 However, the most recent decision, which includes a schedule of

19 payment for attorneys, in point C10 says that the Trial Chamber will,

20 within the Prosecution period, include the time that is necessary for work

21 to be completed linked to 98 bis. That was why I asked whether the

22 Prosecution period is extended for a period that the Trial Chamber will

23 fix for completing the whole procedure under Rule 98 bis. Thank you.

24 JUDGE ANTONETTI: [Interpretation] Thank you for this

25 clarification, but the question you are raising will come into

Page 309

1 consideration if there is an extension of time. Then the Defence will

2 always have time to inform us or to raise the matter then. We cannot

3 address a question that may arise within that period.

4 So depending on the plan of work, the number of witnesses, we will

5 see. Sometime in May, beginning of May, we can reconsider this question.

6 So we'll leave that question on standby while we see how the trial itself

7 proceeds.

8 The other question has to do -- I'm sorry. Mr. Bourgon, you wish

9 to say something?

10 MR. BOURGON: [Interpretation] Yes, with your permission, Your

11 Honour, I should like to make one last remark on this subject. And I

12 quite agree with you that it is disagreeable or that -- to talk about the

13 remuneration of attorneys during the trial, and it would be best if we

14 could not mix the two, but regarding the point we would like to draw

15 attention to is that the date that you are fixing today is a date which

16 has a direct impact on the amount of the fees given to the attorneys as of

17 next week, because according to the directive that's required -- that the

18 date that is required by this directive must cover the period until the

19 ruling under 98 bis. So the magic figure that will be part of the

20 calculation of remuneration is six months. And for the Registry, they

21 will take into consideration that after six months the Chamber has ruled

22 on 98 bis.

23 If you tell us today that we are going to have this stipulated

24 period after the Prosecution case, it means the Prosecution case ends on

25 the 1st of June, seven days later we file our motion, 14 days later the

Page 310

1 Prosecution responds, and then after that the Chamber renders its

2 decision, which on the basis our discussions with the senior trial

3 attorney, could last about two months. So this magic figure, if I can use

4 this word, will not be six but eight months, and for the Defence, this is

5 a figure that has a very great importance in view of the fact that this

6 figure will be part of the calculation for the remuneration of attorneys.

7 And I do apologise for having to address this mention -- this

8 issue during the Pre-Trial Conference.

9 JUDGE ANTONETTI: [Interpretation] On this point which is important

10 for the Defence, you will always have an opportunity to file a motion, and

11 of course the Chamber will consult the Registrar, and you will have a

12 decision on this particular aspect. But for the moment, in view of the

13 planning made by the Prosecution, we can estimate that by 1st of June,

14 2004, the Prosecution case will be completed except if there are

15 exceptional circumstances that may arise in the meantime. But of course

16 you can address us with a motion to raise this issue and a decision will

17 be rendered in writing.

18 Concerning the exhibits. As you know, the Prosecution has

19 provided a list of 983 exhibits. To be admitted, these exhibits,

20 naturally, have to be translated either into English or into French. It

21 would be desirable, in view of the composition of the Chamber, that to the

22 extent possible, the exhibits or documents be translated into French.

23 Therefore, if we have a document which is in B/C/S, then of course it has

24 to be translated into English and French. If it is in English, it needs

25 to be translated for the Defence in the B/C/S because the accused must be

Page 311

1 able to read it, and into French.

2 So I can imagine that there may be a problem of translation and,

3 therefore, I'm asking the Prosecution regarding this question of

4 translation of exhibits whether the list of 983 documents is final or will

5 there be an additional list; and if so, will there be -- or will there be

6 exhibits that will be removed from the original list? And the Defence,

7 which of course is familiar with this list, is it able today to indicate

8 whether there are exhibits that it will challenge the authenticity of.

9 So these are a number of questions that I would like to hear the

10 parties respond to.

11 The Prosecution.

12 MR. WITHOPF: Your Honour, most of the documents that do form part

13 of our exhibit list have been translated. They have been translated

14 either into English if they were B/C/S documents, or into B/C/S if they

15 were English documents. There are a few ones left. We are receiving

16 translations each and every day, and such translation are disclosed to the

17 Defence on an ongoing basis.

18 The current list, the current list of documents will not be the

19 final list. There may be additional documents. On the list, what we,

20 however, wish to emphasise is that Defence got all the documents and

21 including the ones which may be added to the exhibit list.

22 Of course, it also again, and I regret that I have to emphasise it

23 again, it depends on the stipulations of the Defence.

24 Translations into French, Your Honour, this is a very difficult

25 and a very serious problem for us. There are none of such documents

Page 312

1 translated into French yet. We were working on the basis of the message

2 that had been conveyed in one of the 65 ter meetings, that Chambers would

3 take care of translation into French of what they consider being the core

4 or the crucial documents. Taking into account the limited resources of

5 the Prosecution, it will unfortunately not be possible that the

6 Prosecution can take care of translations into French. I am, of course,

7 not in a position to talk about CLSS and whether they can make the

8 resources available at this short notice that would be required in this

9 case.

10 To summarise it, translations are mostly done. Defence got the

11 relevant documents. Translation into French is a problem the Prosecution

12 cannot solve.

13 Thank you very much.

14 JUDGE ANTONETTI: [Interpretation] Very well. Regarding

15 translations, has the Defence any observations to make?

16 MR. BOURGON: [Interpretation] Thank you, Mr. President. Before

17 addressing the question of translation, I think it is important first of

18 all to understand one another regarding the documents that need to be

19 disclosed by the Prosecution to the Defence. The list in question, the

20 Prosecutor tells us today that we have received all the documents which

21 the Prosecution intends to use. We are of the opposite opinion, and we

22 can verify this. I mentioned during the Status Conference several weeks

23 ago that certain documents were missing, and I am able to inform the

24 Chamber today according to our investigation of the documents that were

25 disclosed to us. First of all, there are documents which are cited in the

Page 313

1 pre-trial brief and which are -- which carry the letters PT. And among

2 those documents there are 43 that we cannot find on the list of documents.

3 An example, there's a reference to a document PT44. We look at

4 the list and there is no PT44. So we don't know what document that is.

5 And there are 43 such documents.

6 The second type of document are documents bearing the letters PTW,

7 which are cited in the Prosecution pre-trial brief and which again are not

8 to be found on the list of documents given to us. We are talking here

9 about 113 documents. An example: Document 628 PTW, cited in the

10 pre-trial brief, cannot be found in the list of documents.

11 Finally, Mr. President, there are documents which are on the list

12 of documents given to us by the Prosecution. However, those documents, we

13 never received copies of them either on paper or on a CD-ROM that were

14 served by the Prosecution. And we're talking about 17 such documents.

15 I have a document here which I'm ready to present before this

16 Chamber and to give a copy to the Prosecutor. So before even we address

17 the question of translation, we have to see whether the Prosecution has

18 really fulfilled its obligation under Rule 65 ter to disclose to the

19 Defence the list of all the documents that it intends to produce at trial,

20 as well as copies of those documents that need to be provided to the

21 Defence. And in both cases, I think that we have not fully -- that the

22 Prosecution has not fully fulfilled its obligations in that respect.

23 JUDGE ANTONETTI: [Interpretation] Thank you. I am going to give

24 the floor to the Prosecution now, but the list produced by the Prosecution

25 containing the documents, apparently the Defence absolutely necessarily

Page 314

1 has to have them. That is quite clear. And we're being told today that

2 43 documents of that type are missing. Also, the Defence is saying that

3 on the Prosecution list, there are documents -- I'm sorry, brief, there is

4 reference to certain documents - PT44 - that cannot be found anywhere.

5 And this is a serious problem which we need to resolve as soon as

6 possible, and to the extent to which the Defence is facilitating the work

7 of the Prosecution, by providing a list with the missing documents on it.

8 And according to the Defence list, all those documents are

9 mentioned because we have document 44, 78, et cetera, and the Prosecution,

10 I hope, is going to examine closely the mentioned documents, and could

11 they already at this stage orally tell us what their position is regarding

12 the fact that the Defence has not received the necessary documents.

13 Yes, please, Mr. Withopf.

14 MR. WITHOPF: Your Honour, of course the Prosecution appreciates

15 that the Defence has to get all documents at the very early stage and as

16 soon as possible. Of course, I'm not in a position to discuss the one or

17 the other document which has been specified by the Defence today.

18 We recently got a letter from the Defence identifying a number of

19 documents with PT numbers. These were mainly concerning translations. We

20 provided a number of such documents to the Defence.

21 In respect to the long list of PT numbers, we think, however, this

22 has to be examined and will be examined immediately after this Pre-Trial

23 Conference. We think that such documents are actually witness statements

24 which are included in the CDs Defence counsel have got a few days after

25 the filing of the Prosecution's pre-trial brief. The Prosecution will

Page 315

1 certainly take care of all this issue and will solve the problem provided

2 that there is a problem.

3 My colleague will raise two further things.

4 MR. RE: Just in relation to those, Your Honour, the -- if they

5 are, as I suspect, witness statements, we gave them a PTW number. They

6 would not have been included in the exhibit list because the witness

7 statements would not be exhibits. The oral testimony of the witness would

8 be -- would be the evidence before the Trial Chamber.

9 In the pre-trial brief we referred to the evidence in the

10 footnotes, PTW to refer the Defence to the witness statement of the person

11 providing that evidence. That would not have been on the witness list as

12 such.

13 The second point is the Prosecution is in the process of filing a

14 corrigendum based upon errors in the footnotes the Prosecution has found

15 and the Defence has provided to us, particularly in relation to PTs and

16 ERNs.

17 As Your Honour might appreciate, there is a huge difficulty in

18 using ERNs which are 16 figures -- 16 numerals long, so we used PT numbers

19 to try and simplify it. Inevitably, some errors crept in. The

20 corrigendum should be filed hopefully today or on Monday. We have to have

21 it filed before trial so that everyone is completely clear as to the

22 correct footnoting of the PTs.

23 JUDGE ANTONETTI: [Interpretation] Regarding this point, I am

24 convinced that the Prosecution has taken note of the observation of the

25 Defence and will very quickly address them, and there will be no further

Page 316

1 discussion on this point which can be resolved relatively easily and

2 within a very short period of time.

3 Regarding translations, has the Defence any problems relating to

4 the translation of documents?

5 MR. BOURGON: [Interpretation] [Interpretation] Thank you,

6 Mr. President. Regarding the question of translations, first of all, the

7 translation of documents on the Prosecution list, as has just been

8 indicated by my learned colleague from the Prosecution, we quite recently

9 indicated the documents missing in translation, and they have been given

10 to us in the meantime. So we see no major difficulty at this stage

11 regarding the translation of documents that are on the Prosecution's list.

12 Having said that, Mr. President, during the Status Conference, I

13 made quite a lengthy speech, maybe too long, regarding the question of

14 translation, and I would like to return to the question briefly by making

15 a synthesis of the situation.

16 We have received, for trial, resources for interpretation and

17 translation. We have been authorised to use an interpreter to be able to

18 communicate with the accused in the Detention Unit. So if I go to the

19 Detention Unit, I can go there with an interpreter who will be remunerated

20 by the Tribunal, so no difficulty on that score. However, there are no

21 resources allotted to us during trial for the translation of documents.

22 On the 12th of November, we sent a list of documents to the unit

23 responsible for the Defence with a list of documents that need to be

24 translated as a priority before the trial. This list consisted of

25 documents which we intended to use in the cross-examination during the

Page 317

1 hearing of the Prosecution witnesses, and we specified that these were

2 documents which addressed events in Dusina. Instructions were given to

3 the Defence unit not to communicate the list or the documents to the

4 translation service of the Tribunal and that those documents would not be

5 translated. The consequences are of two kinds: First of all, it will not

6 be possible for me, as Defence counsel who does not speak the Bosniak

7 language, to prepare a cross-examination.

8 Secondly, when using these documents, when the Defence is using

9 them, either by my colleague who does speak the Bosnian language, the

10 documents need to be translated by an interpreter viva voce, which risks

11 considerable delays, in our opinion.

12 I will give you a quick example: We have an important document of

13 four pages which the Prosecution doesn't have. This document will be used

14 in the cross-examination of a witness that will probably be appearing next

15 week. This document is only in the Bosnian language for the moment. We

16 don't have resources to have it translated, and we have been told we

17 cannot address ourselves to the Tribunal translation services. Therefore,

18 the cross-examination will be prepared by my colleague who speaks Bosnian,

19 and she will do the cross-examination. This is a document of four pages

20 which needs to be translated viva voce before the cross-examination

21 begins. We feel that there may be a better way, a better solution which

22 could save time during the hearings and which would also allow for the

23 respect of the rights of the accused, that is for their Defence counsel to

24 be able to work with documents.

25 So we are suggesting, first of all, that we send the documents

Page 318

1 once again to the translation services of the Tribunal with a list of

2 priorities, and to overcome the gap between the fact that the services

3 cannot provide translations, that some minimal resources be provided for

4 us to translate those documents. Therefore, if we cannot count on the

5 services of a person to assist us in translating them urgently, then at

6 least 75 hours per month would be sufficient to allow the two Defence

7 counsels to cross-examine the witnesses but also to save time when those

8 documents are used before the Trial Chamber.

9 The problem of translation is much broader than the point I'm

10 making today. We will make a motion to the Chamber informing them of

11 other difficulties, but we feel that this is a simple and inexpensive

12 method to overcome this difficulty.

13 JUDGE ANTONETTI: [Interpretation] Very well. Thank you,

14 Mr. Bourgon. Yes. Regarding this question of documents produced by the

15 Defence within the framework of the cross-examination, the Defence may

16 produce documents which are not in the possession of the Prosecution to

17 cross-examine the witness. Clearly those documents which are presented in

18 the cross-examination must be understood by the Prosecution, and the

19 Chamber will rule whether to admit them as an exhibit of the Defence and

20 will decide which probative value to give to them.

21 The best method, in my view, would be, as you know in advance the

22 witnesses that will appear and according to your Defence strategy you know

23 which documents you're going to produce, that the appropriate service of

24 the Registry should be told of the urgency of those documents being

25 translated. So if you're sending a four-page document, the question may

Page 319

1 arise whether the whole of those four pages need to be translated or only

2 certain paragraphs. So then you can highlight them with a marker so that

3 those passages be translated before the hearing. But in cases when,

4 unfortunately for the Defence, this is not done, there is the risk of

5 prolonging the hearing of the witness in cross-examination, there's always

6 the possibility of translating viva voce those documents. The document

7 may be placed under the ELMO, and then the interpreters will translate the

8 said documents following instructions that you will give regarding this or

9 that paragraph. But clearly it would be better for those documents to be

10 translated in advance.

11 So address your document to the appropriate service, and if there

12 are difficulties on the day of the hearing of the witness, you will let us

13 know from the beginning that the document could not be translated, that

14 such-and-such a paragraph is relevant, and then everyone will devote

15 attention to the matter.

16 Regarding the suggestion of the Defence. Has the Prosecution any

17 observation to make? Though this has to do with the Registrar and not the

18 Prosecution, in fact.

19 MR. WITHOPF: You're completely right, Your Honour, it's a matter

20 between Defence and Registry. The Prosecution can, however, also already

21 foresee a number of problems, in particular if the Defence, as described

22 by my learned colleague, will use documents which are in B/C/S and only

23 certain portions are translated into English. The Prosecution in

24 instances we may not yet foresee now may wish to read the full document

25 which poses a bit of additional burden on the Defence and the Registry.

Page 320

1 JUDGE ANTONETTI: [Interpretation] Very well. Thank you. I think

2 that everybody will realise this inconvenience and work around it.

3 Now, with respect to written documents and exhibits of the

4 Prosecution. It would be advisable that those documents should be copied

5 and seven copies provided; three for the Judges, one copy per Judge; one

6 copy for the registrar -- legal officer; and one for the registrar; and if

7 it is a Prosecution document, then two copies for the Defence. So this

8 means seven copies in all of each particular document, whether they are

9 Defence documents -- if they are Defence documents, we should like to ask

10 them to provide the same number, even if those documents have not been

11 translated. So it is up to you to photocopy the said documents.

12 I'd now like to go on to the next point on our agenda, which is

13 the current status of disclosure of exculpatory material pursuant to Rule

14 68 of the Rules.

15 Now, at this stage, how do we stand with respect to exculpatory

16 material? Has the Defence been informed by the Prosecution of the

17 existence of documents pursuant to Rule 68 at all? May we hear from the

18 Prosecution first.

19 MR. WITHOPF: Your Honour, Rule 68 materials, exculpatory

20 materials, have been disclosed on a very regular basis since the beginning

21 of these proceedings.

22 The ISU searches on the rule 68 materials are continuing and will

23 continue in future. They have produced quite a number of search results

24 which already have been disclosed to the Defence. Any further search

25 results of materials that do fall within the scope of Rule 68 will be

Page 321

1 disclosed immediately.

2 We again this week disclosed additional Rule 68 materials. We

3 identified a number of search criteria for the Rule 68 searches. Out of

4 about 250 such search criteria, more than 160 are done, including all the

5 names of the witnesses which are detailed in the Prosecution witness list.

6 Search priorities have been given to ISU to ensure that such areas

7 that will be of relevance at whatever stage of the proceedings will be

8 covered prior to them being dealt with in the course of this trial. The

9 searches for the Hadzihasanovic and Kubura case are ISU search priority,

10 and the search results will be available soon and the materials will be

11 disclosed as soon as possible.

12 JUDGE ANTONETTI: [Interpretation] Thank you. May we hear the

13 Defence on Rule 68, please.

14 MS. RESIDOVIC: [Interpretation] Mr. President, I can confirm that

15 the Prosecution has indeed been supplying us with material pursuant to

16 Rule 68 on a regular basis, but you know that after the 6th of November,

17 the Prosecution disclosed pursuant to Rule 68 the Vitez collection with

18 thousands of documents and, as my learned friend said, he also disclosed

19 other documents pursuant to Rule 68 of which we have the findings of an

20 expert witness with annexes used by the expert witness, and they too

21 represent several thousand pages in bulk. And the Defence has undertaken

22 to examine those documents, it is an ongoing process, but I think it is

23 quite clear that in the short space of time we have available we cannot

24 get through such a vast quantity of material. Thank you.

25 JUDGE ANTONETTI: [Interpretation] Very well. Thank you for that,

Page 322

1 and that completes point 8, the current status of disclosure of

2 exculpatory material pursuant to Rule 68 of the Rules.

3 I should now like to go on to the next item on our agenda, that is

4 to say procedure during the trial itself.

5 As you know full well, based on the planning established, the

6 trial opens on Tuesday at 9.00 in the morning. We -- it is provided for

7 to have hearings every day from Monday to Friday, and it seems to me to be

8 advisable to hold those proceedings that way -- in such a way that -- I

9 know that the Defence counsel have to travel, and they would like to see

10 the hearings begin on a Monday afternoon to accommodate for their travel

11 plans, which means going on Monday afternoon, Tuesday, Wednesday,

12 Thursday, et cetera, depending on the availability of the courts, and to

13 end the week on Friday by midday, Friday morning, and then to have plans

14 for the following week, which means that we would have Friday afternoon

15 free, the weekend, and Monday morning free.

16 So I have addressed this and told this to the Registrar. I have

17 conveyed your request with respect to general planning for -- and to have

18 the courtroom available for the trial. So it would be advisable that, as

19 I say, we have Friday afternoons and Monday mornings free, which would

20 allow both parties to prepare themselves for the coming week.

21 Since the hearings have already been programmed and planned up to

22 the month of June, if any extraordinary instances arise and the two

23 parties encounter difficulties on a particular day, a Monday, Thursday,

24 Wednesday, or whatever day, would you please let us know well in advance

25 for us to be able to cater to that difficulty and to cancel a hearing if

Page 323

1 there are valid reasons for that and to put it off to another day.

2 Now with respect to the commencement of the trial, as you know

3 pursuant to Article 84, we have preliminary declarations. Now, I'd like

4 to ask the Prosecution whether it has envisaged how long its opening

5 address will last.

6 MR. WITHOPF: Your Honour, a rough estimate in respect to the

7 opening statement, we anticipate it lasting for about one and a half hour,

8 maybe one hour 15 minutes, maybe two hours, but it will be within one hour

9 15 to two hours.

10 JUDGE ANTONETTI: [Interpretation] Very well. Thank you. I would

11 like to address the Defence now. Does the Defence have any idea as to how

12 long its opening statement will last following on from the Prosecution

13 opening statement?

14 Ms. Residovic.

15 MS. RESIDOVIC: [Interpretation] Mr. President, we have already

16 informed the Prosecution, and we should now like to inform Your Honour

17 that our opening statement will be made after we hear the presentation of

18 the Prosecution case, in keeping with Rule 74 of the Rules of Evidence and

19 Procedure.

20 MR. IBRISIMOVIC: [Interpretation] Your Honour, the Kubura Defence

21 team will also avail itself of its right to present its opening statement

22 prior to the Defence case itself.

23 JUDGE ANTONETTI: [Interpretation] Very well. So we will have a

24 Prosecution opening statement for two hours. Now, can we have any timing

25 for the rest, for your opening statement, Ms. Residovic?

Page 324

1 MS. RESIDOVIC: [Interpretation] I'm looking at the translation

2 here in the transcript. I'm not sure you understood me correctly. What I

3 said was that the Defence will reserve its right to deliver its opening

4 statement before the beginning of the Defence case and after the

5 Prosecution case has been completed. So we're not going to present our

6 opening statement before that, on the 2nd of December. Thank you.

7 JUDGE ANTONETTI: [Interpretation] Therefore I'm concluding that at

8 this stage you don't know whether you're going to make an opening

9 statement or not. You're waiting to hear the contents of the opening

10 statement of the Prosecution and then decide whether to make one. Is that

11 my understanding? No. Please clarify it.

12 MS. RESIDOVIC: [Interpretation] I apologise. Maybe I wasn't

13 precise enough. The Defence will be making its opening statement before

14 the beginning of the Defence case. Therefore, it is availing itself of

15 its right to make that opening statement before the beginning of the

16 Defence case.

17 JUDGE ANTONETTI: [Interpretation] Very well. Mr. Prosecutor, yes?

18 MR. WITHOPF: There is a different issue, Your Honour, we wish to

19 address. It has nothing to do with the opening statement, but it has to

20 do with the scheduling as it has been detailed by you, Your Honour. It is

21 in respect to the Friday sessions. If we got it correctly, you were

22 saying, Your Honour, that you, based on the wish of the Defence, wish to

23 finish the Friday sessions by midday. We understand midday is about noon,

24 about 12.00. That would mean that we would lose one hour, one and a half

25 hours every Friday.

Page 325

1 JUDGE ANTONETTI: [Interpretation] No. No, no. No. That the

2 morning hearings go on from 9.00 until 2.15, as is customary.

3 MR. WITHOPF: That means including Friday as well, I understand.

4 JUDGE ANTONETTI: [Interpretation] No. Let me be more specific.

5 Monday -- on Mondays, the hearings would begin at 2.15, that is Monday

6 afternoon. Then Tuesday, Wednesday, Thursday they will begin either at

7 9.00 or at 2.15, as there are trials that are going on in the courtroom -

8 so this will depend on the availability of courtrooms - and on Fridays, we

9 would begin at 9.00 and finish around 2.00, either quarter to two or 2.00.

10 MR. WITHOPF: Thank you very much. That clarifies the issue.

11 JUDGE ANTONETTI: [Interpretation] Concerning the

12 cross-examination. As you know, the examination of a witness by the

13 Prosecution is going to take a certain amount of time, so the question

14 arises as to the length of the cross-examination by the Defence. The

15 Defence here consists of several members of the Defence teams and two

16 accused. It would be desirable, to the extent possible, that the duration

17 of the cross-examination by the two Defence teams should be equal to the

18 duration of the examination-in-chief by the Prosecution. This could be

19 observed if the Defence does not ask the same questions as the

20 Prosecution.

21 Regarding the duration of the cross-examination by the Defence,

22 could the Defence at this stage already inform the Chamber of its wishes

23 concerning duration?

24 For the Defence of Hadzihasanovic, please.

25 MS. RESIDOVIC: [Interpretation] Your Honour, first of all, we

Page 326

1 should like to inform you that before the beginning of the

2 cross-examination of each witness, the witness will inform you which of

3 the accused will be the first to cross-examine in view of the fact that

4 all witnesses' statements do not relate equally to both accused.

5 Secondly, it is our submission that, as a rule, the

6 cross-examination will not take longer than the examination-in-chief by

7 the Prosecution, and I believe that we will be able to avoid repetition of

8 the same questions, but I do appeal to you to have understanding - and I'm

9 sure you do - that each Defence team has its own responsibility to bear

10 and that it will address the questions that are of interest to their

11 client. So only exceptionally will we ask the Trial Chamber to extend us

12 extra time for cross-examination.

13 JUDGE ANTONETTI: [Interpretation] Thank you. And the Defence for

14 Mr. Kubura on this point.

15 MR. IBRISIMOVIC: [Interpretation] Your Honour, we have already

16 informed our learned friends from the Prosecution that we will

17 cross-examine witnesses separately if there is a possibility, and that is

18 up to an agreement between the two Defence teams for a witness to be

19 cross-examined jointly, we will inform both the Prosecution and the

20 Chamber of that and in that way perhaps save some time for the trial.

21 JUDGE ANTONETTI: [Interpretation] Very well. I think that there

22 will be no special difficulties regarding that point.

23 Regarding the possibility of submission of motions, if a Chamber

24 receives a motion, it would be desirable for the Defence to inform the

25 legal officer of the Chamber of the matter that the motion relates to, if

Page 327

1 possible, before the beginning of the hearing. By informing the legal

2 officer, it will be possible to establish whether the motion could be

3 orally discussed or in written form, and if a motion relates to complex

4 issues, then it would be better for it to be made in writing. That is for

5 the possibility of having motions filed. To ensure the proper

6 proceedings, try to inform the legal officer of the Chamber of such

7 motions in advance, and then both the Prosecution and the Chamber would be

8 informed about it in advance, and of course motions raising questions of

9 substance should be put in writing.

10 I hope there are no remarks regarding motions. I now pass on to

11 another point which is still outstanding, and that is the question of the

12 access of the Defence to the archives of the European Union. The Chamber

13 has taken note of the Defence's communication with the Secretary-General

14 on the 13th of November. At this stage, have you received any response?

15 Because the procedure that you wish to set in motion by the European Union

16 would consist of you going on site, examining the documents, indicating

17 the relevant documents that you would wish to have, and then the European

18 Union, resorting to Rule 70 or not, would communicate them to you.

19 Could you address this point, please. Who wishes to take the

20 floor?

21 MR. DIXON: Your Honour, on behalf of the Defence, I can say that

22 as of yet we have not got a response to that letter that Your Honour

23 refers to. However, we have been informed that we will be getting a

24 response soon, and we hope that we will have something in the next week

25 with a response from them as to our proposal.

Page 328

1 The reason, Your Honour, why we put forward that proposal was so

2 that we could go there and look at the documents, taking into account the

3 concerns that the European Union has expressed, to see whether they're

4 relevant for our case and then to seek permission for them to be used by

5 us and potentially to be used in court. And we're hoping that that will

6 be an acceptable method to the European Union. If it is and we get a

7 response from them soon, then we will be taking the next step of going to

8 examine the documents.

9 Your Honour, there is another related matter, and that is that if

10 we do not get a positive response from them, and indeed until the matter

11 is resolved, until we get an answer from them, we would request that Your

12 Honour orders that no witnesses from the European Union present evidence

13 before the Trial Chamber so that we can look at the documents before those

14 witnesses attend. And in addition, that no documents from the European

15 Union are submitted as yet so that we could have an opportunity to look at

16 the documents as a whole before any particular documents are used.

17 So we would ask Your Honour's indulgence to rule that at this

18 stage the European Union evidence is not relied upon by the Prosecution

19 until this matter is resolved finally.

20 JUDGE ANTONETTI: [Interpretation] Very well. Would the

21 Prosecution like to respond?

22 MR. WITHOPF: Your Honour, very briefly. This request by Defence

23 appears to be very reasonable. We don't have any problem with it. I

24 think it makes sense to wait another few weeks in order to get some sort

25 of idea as to when Defence will be in a position to review the EMM

Page 329

1 documents.

2 JUDGE ANTONETTI: [Interpretation] Thank you. With respect to the

3 Defence's access to confidential documents in other matters and in other

4 cases, the Trial Chamber has seen that the documents with respect to the

5 -- in the Kordic case was placed at your disposal. So I think that with

6 respect to the procedure that you have availed yourselves of thus far,

7 that you have no major problems in that respect. Could we hear from the

8 Defence and have matters clarified, please. Thank you.

9 MS. RESIDOVIC: [Interpretation] Mr. President, yes, it is true

10 that two days ago the Defence team of General Hadzihasanovic has been

11 given access to confidential documents from the Kordic case, and today the

12 Defence team of Brigadier Kubura has been informed that the documents from

13 the Kordic case are also available to his Defence team. So to all intents

14 and purposes, we can start using the documents today.

15 I apologise, Mr. President, but I'd like to say, with regard to

16 access to other documents, that the Defence is still waiting for

17 confidential documents from the Naletilic and Martinovic case. As far as

18 we have been informed, the last order was issued to the Defence teams of

19 Martinovic and Naletilic that by December 2003 they should request

20 additional protective measures for those documents, which means that our

21 Defence teams will be able to have them ten to 15 days after that date and

22 will be able to review those documents too after that date. Thank you.

23 JUDGE ANTONETTI: [Interpretation] Very well. Are there any other

24 questions that the Prosecution or the Defence wish to raise? I think that

25 we have gone through all the other questions and items. Some have been

Page 330

1 resolved, others I hope are being resolved. But would the Prosecution

2 like to raise any other matters at this stage? No, nothing?

3 MR. WITHOPF: No, Your Honour.

4 JUDGE ANTONETTI: [Interpretation] Thank you. Would the Defence

5 like to raise any issues? Mr. Bourgon has the floor.

6 MR. BOURGON: [Interpretation] Thank you, Mr. President. We have

7 three topics we would like to inform you of today. The first with regard

8 to the admissibility of testimony in two cases, in the Blaskic trial and

9 another one; and the second subject has to do with procedure to be

10 followed with respect to the Prosecution evidence and exhibits to be

11 supplied to the Defence teams before trial; and the third subject has to

12 be -- has to do with a recent request made by the Prosecutor, that is to

13 say a motion, ex parte motion, for a subpoena to be issued for a

14 particular witness the identity of which has not been disclosed.

15 As to the first question, the admissibility of testimony by the

16 two accused, the two accused, that is to say General Hadzihasanovic and

17 Kubura, have both testified in the case Prosecutor versus Blaskic. Now,

18 in both cases, these accused were witnesses who were called by the Chamber

19 pursuant to Article 88 of the Rules of Evidence and Procedure. And the

20 accused Hadzihasanovic also testified in another case, that is to say the

21 Prosecutor versus Krstic, at that trial, and also in that case they were

22 called by the Trial Chamber pursuant to Rule 88.

23 The accused Hadzihasanovic also has in the past made a declaration

24 available to the Prosecutor, a statement to him. And the Defence received

25 information from the Prosecutor that they would be using those documents

Page 331

1 during the Prosecution case. On the first -- in the first instance, the

2 Defence referred to those documents in its motion, pre-trial motion, and

3 in that Defence pre-trial motion, we indicated our intentions to oppose

4 the use of those documents and previous declarations and statements.

5 Since then, the Prosecution has sent in their expert report, the report of

6 the expert they wish to call. They say they will do so in the month of

7 January. So we have received that. And there is the 30-day time limit

8 which allows us to make our comments with respect to the report and that

9 this should be done by the 26th of November.

10 The expert will be using prior testimony by the two accused, and

11 we feel that with respect to what we have been told, that the Prosecutor

12 will also be referring to the prior testimony given by the two accused in

13 their opening statement. Consequently, representatives of the two accused

14 intend to file a motion with the Chamber to the effect that these

15 documents, that is the previous testimony of the two accused as well as

16 the statement given to the Prosecutor by the accused Hadzihasanovic,

17 should not be used in the course of this trial.

18 Since we are going to file this motion very shortly, we would like

19 to ask you, Mr. President, to render an order to the Prosecution not to

20 refer to those prior statements, not to give those documents to the

21 Chamber until a ruling is made regarding our motions.

22 JUDGE ANTONETTI: [Interpretation] Very well. Regarding your

23 opposition to the production by -- let me first address myself to the

24 Defence and I will give you the floor afterwards.

25 What is your legal basis for opposing -- on which grounds are you

Page 332

1 opposing the use of the testimony in the Blaskic case or written statement

2 given by your client to the Prosecutor? What are the legal grounds for

3 you to ask the Prosecution not to use that testimony?

4 MR. BOURGON: [Interpretation] Thank you, Mr. President. The legal

5 basis regarding our motion that is going to be filed can be found in

6 Article 21 of the Statute, the rights of the accused, the rights regarding

7 presumption of innocence, so that the accused does not have to make a

8 statement before the Chamber.

9 The accused did testify in the Blaskic case on the same facts

10 which will be judged by this Chamber, and on that occasion these two

11 accused were not informed of their right to keep silent and to avoid

12 self-incrimination. That is the principle legal basis for our motion. Of

13 course, there are other legal motives on which our motion will be based.

14 That is Article 92 bis (D) of the Rules, which envisages reference to the

15 use of the testimony of an accused in another trial. But we have also

16 other motives for this motion based on comparative law and national

17 systems which do not allow for the use of previous statements of an

18 accused in his trial and to see whether these accused testified as

19 witnesses, as accused, or were forced to testify. And those provisions do

20 not provide for the use of such testimony when those accused are on trial.

21 We are going to submit this motion in writing, indicating clearly

22 the grounds which should allow that testimony not to be used as well as

23 statements during trial, and I think it is important for us to say that

24 this is a matter of principle that goes to the very core of the trial.

25 JUDGE ANTONETTI: [Interpretation] So you intend to table this

Page 333

1 motion in writing, but when do you intend to file it? Because as you

2 know, the trial begins on Monday [as interpreted] at 9.00 a.m., and it

3 should normally begin with the opening statement. When do you intend to

4 file your motion? Because as you know, a motion, once filed, first

5 requires the Prosecutor to respond to it in writing. So there will be a

6 problem of time, because the trial is beginning at 9.00 a.m. on Tuesday.

7 Also regarding the arguments that you have offered regarding the

8 opening statement which the Prosecution will be making, as you know, in

9 comparative law the Prosecutor is free to say what he thinks orally, and

10 therefore you are raising the problem of limiting the right of speech of

11 the Prosecutor in a statement which is only an opening statement.

12 MR. BOURGON: [Interpretation] Thank you, Mr. President. We fully

13 take note of your statement. Regarding the opening statement of the

14 Prosecutor, we quite agree with you that the opening statement is not part

15 of the record of the evidence, and the Prosecutor is free to discuss what

16 he intends to submit as evidence. But if a Chamber needs to make a

17 decision that a certain document cannot be used, it would be opportune for

18 good understanding between the two parties for that not to be referred to.

19 Of course we will be guided by your ruling in that respect.

20 Regarding the question of when the motion will be filed, the

21 report of the expert has been in our hands since Wednesday, and we will

22 file the motion as quickly as possible, which means that if this motion

23 has an impact on a ruling that you may make regarding the opening

24 statement, we can file it already on Monday. If, Mr. President, you feel

25 that it is not necessary for the Chamber to make any ruling before the

Page 334

1 opening statement, then again our motion will be filed as soon as possible

2 but not necessarily on Monday. What is important for us, Mr. President,

3 is, as soon as possible, that is at the Pre-Trial Conference, to notify

4 the Chamber of our intention, as we did in our pre-trial brief, that we

5 oppose the admissibility of the testimony of the two accused in the

6 Blaskic case and the statement given by Hadzihasanovic to the Prosecutor.

7 Thank you.

8 JUDGE ANTONETTI: [Interpretation] Before giving the floor to the

9 Prosecution to respond on this particular point, the Prosecution has

10 understood that we find ourselves in time constraints, and if the Defence

11 files a motion Monday, Tuesday, or Wednesday regarding the admissibility

12 of evidence, the only urgent issue is that if in your opening statement

13 you refer expressly to the object which is contained in the statement

14 previously, then there could be a problem.

15 So we have realised the legal impact of the motion, that is to

16 prevent a witness who -- a witness who testified in another trial and who

17 was not informed at the time that that testimony may one day be used

18 against him. So the question that needs to be addressed is whether in

19 your opening statement you intend to refer to this as this is the problem

20 that the Defence is raising.

21 The Prosecution, please.

22 MR. RE: We can answer that quite simply. The Prosecution does

23 not intend to refer to the prior testimony of Mr. Hadzihasanovic or

24 Mr. Kubura in its opening statement. The Prosecution submits -- I'm not

25 arguing the point now, but submits that the prior testimony is relevant,

Page 335

1 probative and admissible. The Defence has been on notice since we filed

2 our pre-trial brief on October the 10th that we intended to use that

3 evidence in -- at trial. They have had since October the 10th to file a

4 moment in limine to determine the issue before trial. They have not done

5 so.

6 The Prosecution of course accepts that there are some reasonably

7 complicated issues of law involved here and there is a mixture of

8 approaches from common law and civil systems and, as Mr. Bourgon points

9 out, there is jurisprudence which may go either way. The Prosecution

10 will, of course, argue the matter properly when the time comes. As Mr.

11 Bourgon points out, the Prosecution expert, General Rheinhardt, has

12 referred to and relied upon parts of the previous testimony of Mr. Kubura

13 and Mr. Hadzihasanovic in his report. As Mr. Withopf said earlier, he

14 won't be giving his evidence until late January. If the Trial Chamber

15 were to make a ruling against the Prosecution, it could be excised from

16 his report. The Prosecution does not anticipate that it will come close

17 to tendering or attempting to tender that evidence or the annexes to

18 General Rheinhardt's report until sometime in January. The Prosecution

19 considers it premature to discuss this issue at the moment, and we'll, of

20 course, file a motion with considered legal argument when the time comes.

21 JUDGE ANTONETTI: [Interpretation] Very well. I will close on that

22 point. It appears already that in the opening statement of the

23 Prosecution on Monday [as interpreted], there will be no reference to that

24 testimony. So this should satisfy the Defence. So there's no urgency

25 that this motion has to be filed in the -- as soon as possible, because

Page 336

1 the question will arise only when we come to the testimony of the expert

2 witness in January. So you will have plenty of time to draft that motion.

3 As it is now 12.35, in view of technical problems and the need for

4 a rest, we will have a short 15-minute break to address the two other

5 points that you raised, and that is the procedure to be applied regarding

6 inculpatory evidence and the motion of the Prosecution. We will have a

7 15-minute break now.

8 --- Recess taken at 12.34 p.m.

9 --- On resuming at 12.55 p.m.

10 JUDGE ANTONETTI: [Interpretation] Please be seated. The hearing

11 is resumed after this brief break. We are now going to address the two

12 other points raised -- just a moment. Let us wait for the accused.

13 I was saying that we're going to address the two last issues

14 raised by the Defence that have to do with the procedure to be followed

15 for Prosecution Exhibits, and the second point, the filing of a motion by

16 the Prosecution.

17 I give the floor once again to Mr. Bourgon who raised these

18 issues. You have the floor. Or to Ms. Residovic.

19 MS. RESIDOVIC: [Interpretation] Thank you, Mr. President. Just

20 briefly to deal with this matter that we raised, and it has to do with the

21 ex parte request for subpoena. We are quite clear that in keeping with

22 Rule 54, each party can ask for a subpoena to be issued, and we didn't see

23 any problems in that regard. However, the question arises as to why this

24 subpoena was asked for ex parte, because usually a subpoena can be treated

25 within Rule 69, within the framework of various protective measures being

Page 337

1 accorded. But also, the identity of an individual must be disclosed to

2 the Defence on time for the Defence to be able to prepare for

3 cross-examination.

4 I should like to inform you, Mr. President, that during the break

5 we discussed the matter with our colleagues from the Prosecution, and they

6 told us what they did and gave us certain guidelines. They said there was

7 no problem for their part in disclosing to us the reasons which guided

8 them in turn. So I think that after this discussion we had during the

9 break, we have no requests or motions to make of the Trial Chamber on that

10 score. Thank you.

11 JUDGE ANTONETTI: [Interpretation] Very well. So if I understand

12 correctly, following the conversation that you had during the break, you

13 are no longer raising the problem. So the question has been resolved.

14 Very well.

15 The last point, and that is the procedure regarding Prosecution

16 exhibits. What is the problem?

17 MR. BOURGON: [Interpretation] Thank you, Mr. President. It is a

18 question of a practical nature but also of a legal nature. We were

19 informed that all the documents on the list of the Prosecution documents

20 will be given to the Chamber on an informal basis at the beginning of the

21 trial, and following the last Status Conference, it was also agreed that

22 some three weeks in advance the Prosecutor would disclose the -- would

23 serve the statement of witnesses who would be heard in the next three

24 weeks.

25 The Prosecutor has already started to apply this mechanism, and it

Page 338

1 has communicated to the Chamber the statements of future witnesses for two

2 particular incidents, that is the witnesses that will be called to testify

3 about Dusina and those who will be testifying about Miletici.

4 So the practical matter appears to have been regulated regarding

5 the procedure. However, the Defence would like to draw your attention to

6 the potential danger of such a practice when the trial begins.

7 We have been told that this practice has now been established

8 before the International Criminal Tribunal, that it is current practice

9 that all the documents and statements are given to the Chamber before the

10 witnesses are heard and before those documents have been admitted into

11 evidence. We also know that there's a ruling of the Appeals Chamber on

12 this subject, and though it doesn't specifically deal with this question,

13 it says that it is possible for the Judges to see the testimony in advance

14 and to see the documents in advance.

15 I would just like to draw your attention this morning to the

16 potential danger of such a procedure. As you probably know,

17 Mr. President, that within an Anglo-Saxon system as soon as a Judge sees a

18 document, before it is admitted into evidence, or if a Judge sees a

19 witness statement before hearing that witness, that is sufficient to annul

20 the process as a whole. Of course we are not applying the Anglo-Saxon

21 system.

22 You know also that in the continental law system, the Judge will

23 see at the beginning of the trial what is known as "the file," but there

24 is a distinction to be made between the file received by a Judge in the

25 continental law system and the documents served on the Chamber in this

Page 339

1 system. Because in the former case, what the Judge receives is a file of

2 the documents that are of the Prosecution and of the Defence. So those --

3 in this case, however, the documents provided to the Chamber are only the

4 incriminating documents.

5 Let me give you an example. If all the documents are given to the

6 Chamber and the Judge consults those documents, it is quite possible that

7 in the course of the trial the admissibility of a document may be called

8 in question and the Chamber may even rule that it is not admissible. The

9 same applies to the question of authenticity or another document which, by

10 agreement between the parties, will no longer be fight filed, but the

11 Judge has already seen them in advance.

12 The Appeals Chamber has already ruled on this subject, but we

13 would like to draw the attention of the Judges of this Chamber to the

14 possibly prejudicial nature of such a procedure to the extent to which

15 that the Chamber sees only the Prosecution documents, which could be

16 prejudicial for the accused.

17 Having said that, once the documents are provided to the Chamber,

18 what is important from the point of view of the Defence is that all

19 documents given to the Chamber should also be given to the Defence. And

20 even if documents are doubled, even if they may be documents that we have

21 already received on the basis of disclosures under Rule 66 or 68, if a

22 document is provided to the Chamber, it should also be provided to the

23 defence so that at all points in time the Defence knows which are the

24 documents in the possession of the Chamber to avoid all confusion in the

25 course of the trial, and then the Prosecution may refer to a document

Page 340

1 which the Chamber has in its possession and we may not.

2 You know that such a situation did occur in certain cases before,

3 and in order to avoid all possible confusion during the trial, we would

4 like to ask that each document given to the Chamber in electronic or paper

5 form should also be provided to the Defence. That is out of precaution.

6 Thank you, Mr. President.

7 JUDGE ANTONETTI: [Interpretation] I give the floor to the

8 Prosecution now.

9 MR. WITHOPF: Your Honour, the practice that has been established

10 at Your Honour's request is the following: That the Prosecution provides

11 Chambers with copies of the OTP statements of such witnesses it intends to

12 call within three week's time. Chambers has been given such copies of

13 witness statements, Defence has been informed the very same day such

14 copies have been provided to Chambers.

15 This issue has been addressed by Defence repeatedly. It is the

16 understanding of the Prosecution that Chambers, that the Judges can

17 certainly distinguish between the witness statement and between the

18 evidence which will be the oral testimony of the witnesses in trial.

19 In addition, I wish to say that pursuant to the ICTY Rules of

20 Procedure and Evidence 65 ter (E)(ii), the Chamber gets the summaries of

21 such witness statements anyway, and quite often there is not much of a

22 difference, or not a huge difference, between the summaries on the

23 contents, the relevant contents of such witness statement itself.

24 Professional Judges, as we have here at this Tribunal, can

25 certainly distinguish between the witness statement and the oral evidence.

Page 341

1 In respect to documents, none of such documents have been given to

2 the Trial Chamber. There is not such a request. We will tender documents

3 on a crime base by crime base basis, at least for the first weeks of this

4 trial. Thank you very much.

5 JUDGE ANTONETTI: [Interpretation] Yes. On this important matter

6 raised in law, it appears that there is a potential danger, according to

7 the Defence, that the Judges, being familiar with a written statement, may

8 have a conviction before the oral testimony. So this has to do with the

9 witness statements.

10 As for documents, the Defence also fears that the fact that a

11 document that may be in the possession of the Judges prior to trial may,

12 in their mind, have a certain value before even it has been examined in

13 cross-examination. So that is what the Defence is telling us.

14 The Prosecution is rightly telling us that regarding witnesses,

15 anyway, according to the Rules of Procedure, these summaries of testimony

16 can be quite long, and they may be almost as long as the written statement

17 - there's nothing to prevent it - and to give the Judges the entire

18 statement does not carry this potential risk.

19 This question, which is very important and interesting, was

20 resolved by a ruling of the Appeals Chamber, and this ruling that I

21 referred to at a previous Status Conference allows Judges to have

22 knowledge of those statements or exhibits prior to the trial. It was

23 decided on the previous occasion, in order to satisfy the Defence, to

24 communicate such statements only a few weeks in advance, as has been done.

25 As for the exhibits, for the moment we do not have any exhibit.

Page 342

1 It would perhaps be desirable, if you insist in this position, to file a

2 motion on the matter so as to allow the Chamber to respond in law. Or

3 another solution of a practical nature that may be satisfactory for

4 everyone, the mechanism could be as follows - this is just an idea, not a

5 ruling or decision - the Prosecutor would first give to the Defence the

6 documents it will refer to, and if the Defence is not opposed, then the

7 Chamber could be told about them, and if the Defence opposes it, no

8 communication. That could be one solution. But another solution could

9 also be that there should be no communication. In that case, we will have

10 to act in accordance with the decision that has already been made in a

11 similar case.

12 So are there any additional observations to be made?

13 MS. RESIDOVIC: [Interpretation] No, Your Honour. You have made

14 several proposals that should guide us, and I think that this is

15 acceptable to the Defence, the proposals you've made, that perhaps one or

16 two days in advance that the Prosecution should inform the Defence which

17 exhibits it will tender to the Trial Chamber, and if we have any separate

18 reason or special reason not to have this sent on, then we could make that

19 clear in writing.

20 However, the second question that Mr. Bourgon raised and which we

21 should like to hear your pronouncements on is the following: Would it be

22 necessary - and it is our position that it would be advisable and

23 necessary - for the documents that you are sent in by the Prosecution,

24 that those same documents should be disclosed to us regardless of the fact

25 that at an earlier stage it had perhaps provided us with those documents,

Page 343

1 so that we could be able to form the same list that the Trial Chamber has.

2 We could make this same list up. So that was our intention. And not to

3 have any misunderstandings at trial as to whether a document had been

4 previously disclosed to the Defence or not.

5 So our proposal is to have simultaneous disclosure to the Trial

6 Chamber, to Your Honours, and to the Defence teams so as to -- us to be

7 able to make a file, court file, for the Defence. Thank you.

8 JUDGE ANTONETTI: [Interpretation] Thank you. This procedure of

9 communication from the Prosecution towards the Chamber can also apply to

10 the Defence when the time comes for its presentation of evidence, can be

11 used to its advantage. What applies to one party applies to the other

12 too. And therefore, to prohibit such a system, that prohibition would

13 also apply to you.

14 So what the Defence is also suggesting is that the Prosecution,

15 when communicating those documents, should simultaneously communicate them

16 to the Defence. So what is the point of view of the Prosecution in that

17 regard?

18 MR. WITHOPF: In the event - and I emphasise in the event - the

19 Prosecution would communicate documents to the Trial Chamber prior to

20 tendering them into evidence, the Defence would be informed, following the

21 suggestion of the Presiding Judge. Thank you.

22 JUDGE ANTONETTI: [Interpretation] Very well. If I understand you

23 correctly, there is no objection on the part of the Prosecution. When it

24 is communicating a document to the Chamber, that they will simultaneously

25 do so to the Defence. Is that my understanding? And when the Defence

Page 344

1 case comes, then it will act in the same way. It will produce documents

2 to the Chamber and to the Prosecution simultaneously.

3 So we take note of that. And if there should be any problems in

4 the future, there will also be time for the Defence to file a motion.

5 Are there any other matters to be discussed? No?

6 MS. RESIDOVIC: [Interpretation] No, thank you, Mr. President.

7 JUDGE ANTONETTI: [Interpretation] And the Prosecution?

8 MR. WITHOPF: No thank you, Mr. President.

9 JUDGE ANTONETTI: [Interpretation] Very well. In that case, the

10 Pre-Trial Conference is thereby completed. We will all meet again next

11 Tuesday at 9.00 a.m. And the accused will also be present on Tuesday at

12 9.00, as they have to follow in person these hearings -- this hearing

13 which had to do with the preparation of their trial.

14 So I declare the hearing closed.

15 --- Whereupon the Pre-Trial Conference

16 adjourned at 1.15 p.m.