Tribunal Criminal Tribunal for the Former Yugoslavia

Page 10120

1 Wednesday, 6 October 2004

2 [Pre-Defence Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.01 a.m.

6 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, could you call

7 the case number, case.

8 THE REGISTRAR: The case number is IT-01-47-T, the Prosecutor

9 versus Enver Hadzihasanovic and Amir Kubura.

10 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar.

11 Could we have the appearances for the Prosecution, please.

12 MR. MUNDIS: Good morning, Mr. President, Your Honours.

13 [Technical difficulty]

14 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Mundis.

15 Could we have the appearances for Defence counsel.

16 MS. RESIDOVIC: [Interpretation] On behalf of Enver Hadzihasanovic,

17 Ms. Residovic, counsel, and Stefane Bourgon.

18 JUDGE ANTONETTI: [Interpretation] Thank you. And could we have

19 the appearances for the other Defence team.

20 MR. IBRISIMOVIC: [Interpretation] Mr. Ibrisimovic, and

21 Nermin Mulalic, our legal assistant.

22 [Technical difficulty]

23 JUDGE ANTONETTI: [Interpretation] Thank you. The Trial Chamber

24 would like to greet everyone present in the courtroom. We'll now resume

25 with our proceedings. After the stage that falls under 98 bis, I'd also

Page 10121

1 like to greet the representatives of the Prosecution who are all present.

2 I'd also like to greet Defence. They are also present, as usual. And I

3 would like to greet the accused, who are also present at this Pre-Trial

4 Conference.

5 As you know, a decision was rendered following a motion filed by

6 the Defence. That was a motion for acquittal. The Trial Chamber

7 acquitted the accused on a number of counts: Count number 2, in

8 particular, and in the opinion of the Trial Chamber, it was necessary to

9 continue with the proceedings with regard to the other counts. We were

10 seized by the Defence. They filed a request for certification. The

11 Defence has the intention of appealing the decision that was rendered on

12 the basis of Rule 98 bis.

13 In principle, the Prosecution must also make submissions with

14 regard to the grounds for certification for, for requesting certification

15 at this point in time. Would the Prosecution like to make any written

16 submissions or could they make oral submissions today to inform us of

17 their position. Mr. Mundis, I'll give you the floor.

18 [Technical difficulty]

19 MR. MUNDIS: We respectfully request -- late in the day on Monday

20 and it being Wednesday today, we've only had really one day in order to

21 consider the position of the Defence. We would respectfully propose

22 that -- or suggest that we could certainly file our written response no

23 later than close of business on Monday, 11 October, which would in effect

24 give us one week to respond to the Defence request for certification and

25 we would do so in writing by close of business on Monday. I should also

Page 10122

1 state simply, Mr. President, we do oppose the request for certification

2 and we will set forth our reasons for opposing that request in writing.

3 JUDGE ANTONETTI: [Interpretation] Very well, the Trial Chamber

4 will await your written submissions. And we will render a written

5 decision, naturally, since there will be written submissions. But we will

6 certainly be in a position to, as of the 18th of October, to tell you

7 orally what our decision shall be.

8 That concerns the matter of certification. Is there anything that

9 Defence would like to say at this point in time with regard to

10 certification?

11 MS. RESIDOVIC: [Interpretation] No. Thank you.

12 JUDGE ANTONETTI: [Interpretation] Very well. We will now commence

13 with the proceedings under Rule 73 ter. As everyone is aware, before the

14 Defence presents its case, the Trial Chamber may hold a conference, and

15 that is the purpose of this hearing today. And within the framework of

16 this hearing, we must determine, after having heard the Defence, the

17 number of witnesses that will be called and the time available to the

18 Defence to present its case.

19 First of all, I will give -- I will soon give the floor to the

20 Defence so that they can explain their position to us, but, as we have

21 received written submissions from the Defence, the Trial Chamber could

22 conclude, could note, that with regard to Mr. Hadzihasanovic's defence,

23 Defence counsel intends to call 66 witnesses plus 4 expert witnesses,

24 whose names we don't have, and we have no information about them either.

25 We know that among the four expert witnesses, there will be an expert

Page 10123

1 witness in history. He will come to testify with regard to the historical

2 context that prevailed in the region.

3 There is a second witness, an expert witness on constitutional

4 matters. The third expert witness will be an expert who will come to

5 testify with regard to the exercise of command at the time of war. And

6 the fourth and last expert witness will come to testify about military

7 command and the control of the relations established within the army.

8 General Hadzihasanovic's defence will then file or tender into

9 evidence 1.408 documents. These 1.408 documents have been divided into

10 categories. There are tables that have been attached in which these

11 documents are listed. These tables will have numbers for the documents.

12 They mention the relevant date for the documents concerned and they have

13 been chronologically ordered.

14 The source of the documents is indicated, and in a specific

15 column, it says whether the documents come from the Sarajevo archives or

16 from the HVO archives or from some other source. It would also have been

17 interesting, but this is something that the Defence could add, it would

18 have been interesting to mention with regard to each particular document

19 the relevant paragraph in the indictment that is concerned in the

20 document, as well as the relevant paragraphs of the Prosecution's

21 pre-trial brief.

22 It would also have been interesting to have a column mentioning

23 the documents that are contested. The Prosecution documents that are

24 contested. And these documents would then be indicated as containing

25 contradictions of the Prosecution's documents. And it would mention the

Page 10124

1 purpose of the documents.

2 With regard to Mr. Kubura's case, Mr. Kubura's defence, we have

3 been told that there would be 27 witnesses, 209 exhibits, and if we

4 calculate the total time estimated, we've been informed that there would

5 be roughly 70 days of hearing. Apparently, 16 days would be needed for

6 the experts, 8 days for the Defence, and 8 days for the Prosecution's

7 cross-examination.

8 We have also been informed that a certain number of witnesses are

9 local witnesses. Some witnesses live abroad. There will also be

10 witnesses that have not yet been located. And in addition, 11 additional

11 witnesses have been planned. Defence counsel has also informed us that,

12 pursuant to Rule 73, they will be able to provide us with the final list

13 on the 19th of November. And I'm referring to Rule 73 ter.

14 The consolidated list should be provided to the Trial Chamber on

15 the 18th of November.

16 I have summarised at this point in time the position with regard

17 the documents that we were provided with yesterday. There are more than

18 250 pages for General Hadzihasanovic's defence, so we have examined very

19 carefully the documents in the brief period of time that we had up until

20 the hearing held today. And with regard to the number of witnesses, there

21 are no particular comments the Trial Chamber would like to make at this

22 stage. Naturally, this is subject to other explanations that the Defence

23 might provide.

24 I will now give the floor to Defence counsel so that they can

25 confirm the contents of their documents and, in addition, to address the

Page 10125

1 matter of the organisation of the future proceedings. The Trial Chamber

2 would like to know whether Defence counsel intends to make an opening

3 statement under Rule 84, given that such an opening statement has not yet

4 been made. But naturally, you may make an opening statement before the

5 witnesses are called. In such a case, you should inform us of the

6 estimated length of time that the respective defence teams would take.

7 And furthermore, before I give you the floor, with regard to the

8 witnesses that you intend to call, on the basis of your submissions, I

9 have no information about the manner in which you intend to proceed, about

10 the manner in which the two defence teams intend to proceed. Are you

11 going to hear the witnesses one after the other? Will you hear them at

12 the same time? I'm not sure how you intend to proceed. And in addition,

13 we do not know whether you are going to call the witnesses according to

14 the order of the counts in the indictment or will this be random?

15 Naturally, you should provide some clarifications for us, and for the

16 Prosecution as well, since they must be in a position to prepare their

17 cross-examination.

18 I will give you the floor now.

19 MR. BOURGON: [Interpretation] Thank you, Mr. President. Good day,

20 Your Honours. I'd like to greet my colleagues from the Prosecution as

21 well.

22 Mr. President, it's my pleasure to provide you with certain

23 additional details with regard to the presentation of the Defence's case

24 for General Hadzihasanovic. First of all, Mr. President, I would like to

25 answer one of your questions that you have just asked that has to do with

Page 10126

1 the order of presentation of the evidence for the two accused.

2 We will commence with General Hadzihasanovic's defence case.

3 There will be four expert witnesses in the course of his defence case, and

4 these four expert witnesses shall be presented for both accused. Once the

5 case for General Hadzihasanovic has been concluded, then the defence case

6 for the second accused will commence.

7 Naturally, subject to what the Trial Chamber might order us to do

8 with regard to this matter. As far as the order of witnesses is

9 concerned, the witnesses on the list that we provided in our submission of

10 last Monday, we have not yet defined the order of their appearance.

11 Nevertheless, we will follow the Trial Chamber's suggestions and try to

12 present the witnesses, that is, to call the witnesses in a logical

13 sequence, on the basis of the matters concerned. Naturally, we must also

14 take into consideration the availability of the witnesses and their travel

15 arrangements. What we can say is that we are discussing matters with the

16 Victims and Witnesses Unit in order to establish the order in which the

17 witnesses can be called. We will then inform the Prosecution and the

18 Trial Chamber as soon as possible of this order.

19 Nevertheless, we can inform you now that the first witness will be

20 an expert witness who will be testifying about the history of Bosnia and

21 Herzegovina, or will be testifying about historical facts that are

22 relevant to the indictment. Naturally, we would therefore like to

23 commence by calling this first witness.

24 Having said that, Mr. President, I can also answer another of your

25 questions, which concerned the opening statement. In fact, we do intend

Page 10127

1 to exercise the right that we have under the Rules and we will be making

2 such an opening statement the first day of the hearings. That is to

3 commence on the 18th of October. We believe, Mr. President, that this

4 opening statement will take about two hours, and as a result, I should be

5 in a position to hear the first witness that very same day, Dr. Sehic,

6 and the expert witness on history.

7 Mr. President, I'm going to try to answer your questions and to

8 provide the information to the Trial Chamber with -- and I'll address the

9 matters as you presented them, in the order you presented them.

10 I'll start with the matter of documents. In fact, the documents,

11 as the Trial Chamber said, we have 1.408 documents listed in a table,

12 provided both to the Trial Chamber and to the Prosecution. I would like

13 to draw attention to the fact, Mr. President -- I would like to inform you

14 of how this table will be used, Mr. President. Our intention is to try to

15 keep the same table from the beginning to the end and to maintain the same

16 numbers, to avoid having several numbers for the same documents. So

17 document number 350 today is a document that could be admitted under

18 number 350, or it could be contested by the Prosecution under number 350,

19 or it could be marked for identification under that same number. Our

20 intention is to try and keep the same number. In order to do this,

21 Mr. President, whenever there is a modification of any kind in our table,

22 because perhaps we'll have identified errors, and we have already

23 identified certain errors. We have certain documents which have been

24 listed twice in the table. We've also found some errors with regard to

25 the dates, and I'm quite sure that my colleagues from the Prosecution

Page 10128

1 won't fail to inform us of any errors or doubts that they might have about

2 the table concerned.

3 In such a case, Mr. President, we will make corrections to the

4 same table, which will again be filed, and it will be given a number for

5 the particular version concerned, 1, 2, 3, et cetera. We believe,

6 Mr. President, that proceeding in this manner would make it easier for all

7 the parties involved in the proceedings, including the Trial Chamber.

8 With regard to the documents, Mr. President, I would like to state

9 the following: We have indicated that this is an initial list, and in our

10 submissions, we explained why we weren't in a position to provide a

11 definitive and final list for today, for Monday. In our request, we

12 explained that there were documents that we hadn't gained access to or

13 there were other documents that were provided to us at a date, at a time

14 that made it impossible for us to examine them and analyse them. And for

15 the sake of the transcript, I would like to inform you that the documents

16 in the case the Prosecutor versus Prlic et al. This is a matter of great

17 scope. There were six accused and about 10.000 documents provided by the

18 Prosecution to support its indictment. Trial Chamber I already stated

19 that it supported the Defence and would give us access to this -- to these

20 documents. We just have to arrange the matter in which we'll gain access

21 to these documents and we have to define the protective measures that the

22 Prosecution would like to have with these documents. We have already

23 responded to the request of the Prosecution and we hope that we'll gain

24 access to this material very rapidly.

25 We are at the moment in contact with Trial Chamber I's Senior

Page 10129

1 Legal Officer in order to try and determine when we might be able to gain

2 access to these documents.

3 Secondly, Mr. President, the case concerns the Prosecutor versus

4 Blaskic and this is material from the appeals, from the appellant Blaskic.

5 Mr. President, we made a request to gain access to this material on the

6 19th of November, 2003, and the Trial Chamber granted the Defence's

7 request on the 3rd of March. This was for a number of reasons. For a

8 number of reasons, Mr. President, we could explain why. We didn't get

9 these documents before the 10th of September, and we have not yet had time

10 to examine these documents. We believe that this material consists of

11 roughly 3.000 pages.

12 The following category, Mr. President, concerns documents of an

13 exculpatory nature. These documents are documents that we were provided

14 with pursuant to Rule 68. The Prosecution provided them to us, and these

15 documents were provided to us on the 22nd of December. These documents

16 would add up to a total of 1.640 pages. These documents are in the

17 language of the accused. On the one hand, that is advantageous, but in

18 order to examine them and select documents, we need additional time, and

19 we have not yet finished this work.

20 The fourth category of documents, Mr. President, concerns

21 documents that come from the European Community. I apologise. The

22 European Union Monitoring Mission. During a visit to Geneva, after the

23 end of the Prosecution case, we found other documents that come from this

24 source. These documents, Mr. President, are different from the ones that

25 the Prosecution provided us with. And similarly, they're different from

Page 10130

1 the documents that we were able to locate in Sarajevo.

2 Mr. President, these documents concern summaries that were -- that

3 made each week and summaries that were prepared in Zagreb, either in

4 headquarters -- that is to say, in the headquarters of the European Union

5 monitoring mission. At the time, we have asked for access to these

6 documents, but this is the property of the United Nations. As a result,

7 we have a problem, because we need to gain permission from the European

8 Union. We have already commenced with discussions. We have written a

9 number of letters and it seems that we'll be gaining access to these

10 documents soon.

11 Then there are documents from certain international organisations.

12 And, Mr. President, I would like to go into private session, please.

13 JUDGE ANTONETTI: [Interpretation] Very well. Mr. Registrar,

14 private session, please.

15 [Private session]

16 (Redacted)

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21 (Redacted)

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Page 10132

1 [Open session]

2 THE REGISTRAR: [Interpretation] We are currently in open session.

3 JUDGE ANTONETTI: [Interpretation] Please proceed.

4 MR. BOURGON: [Interpretation] Thank you, Your Honour. I should

5 like to continue talking about these documents. Some documents come from

6 the expert commission of the United Nations, United Nations Commission of

7 Experts, or UNCOE. This is the commission which was created, so to speak,

8 before this Tribunal was set up. This commission operated in the field

9 between 1992 and completed its work in 1994, shortly after the creation of

10 this Tribunal.

11 This inquiry commission, or this commission that brings together a

12 number of experts, has collected a number of documents that were handed

13 over to the Prosecution. We didn't think that these documents could be

14 relevant until such a time that we started looking into the new EDS,

15 electronic disclosure system, and we discovered a number of documents in

16 this system which we felt would be of interest to us as regards the

17 defence case of Hadzihasanovic. And therefore, we turned to the

18 department of archives of this commission to access these documents.

19 However, we are only interested in one particular incident in this

20 case, and we don't think that this will delay the proceedings in any way.

21 For all the reasons I have mentioned, we should be able to provide

22 the Trial Chamber with a comprehensive list of its documents and witnesses

23 by the 18th of November, at the latest. Prior to that, we would like to

24 file an application to a state or an international organisation to provide

25 documents or even provide subpoena in order to call some of the witnesses.

Page 10133

1 I should like now to talk about disclosure of some of these

2 documents under Rule 65 ter, paragraph G, the Defence is required to

3 provide each document that it intends to produce during the defence case

4 to the Prosecution. We have discussed this with the Prosecution team. We

5 will be able to give them a collection, but this is not a final

6 collection. We said we would provide this next Monday, i.e., the 11th of

7 October. This is not a list, but these are documents which will be

8 presented in the same order as the chart we have provided. These

9 documents will be in one language only, either in B/C/S or in English and

10 in B/C/S. We believe that the Prosecution would be interested in having

11 documents in English also, but we provide some of the documents in B/C/S

12 so that they're able to check out signatures and things like that. So we

13 will provide a copy of each document into those languages.

14 I shall therefore now talk about the question of translated

15 documents. Since the beginning of June, we have handed over to the CLSS

16 department a number of documents for translations, and as we handed those

17 documents in, they were translated. If I may say so, we have given them a

18 number of documents, and according to their -- to the translation capacity

19 in CLSS, we still have another 600 documents that need to be translated.

20 And this Friday, all these will be handed over to CLSS department, to

21 Translation Department, and we have prioritised these documents so that

22 they match the witnesses that will be called. And we would like, of

23 course, the documents to be ready when the witnesses are called.

24 Your Honour, you mentioned earlier on the question of additional

25 information which the Trial Chamber would like to be provided with as

Page 10134

1 regards the chart or the table we have given you. You first of all

2 mentioned the issue of relevance or relevant paragraph of our pre-trial

3 brief or of the indictment. Your Honour, we would like, if the

4 Trial Chamber agrees to this, we would like to proceed in a somewhat

5 different way. The Defence team intends to -- intends to present all

6 documents via the witnesses. So we believe it is important, as we have

7 stressed this a number of times during the Prosecution case, we think it

8 is important that the documents be discussed in the presence of the

9 documents [as interpreted], in order to highlight the probative value of

10 these said documents. And we believe that these witnesses will be able to

11 shed more light on these documents.

12 Towards the end of the Defence case, if we come to realise that

13 some documents have not been presented via any witness, in that case,

14 Your Honour, we believe that we can then prepare a chart, providing all

15 the relevant information, in other words, paragraphs relating to the

16 indictment, relevance, and everything we can provide the Chamber with so

17 that these documents are actually tendered into evidence. This will

18 enable the Prosecution to make comments.

19 We are, of course -- we will follow any instructions provided by

20 the Trial Chamber regarding this particular matter.

21 Now I'd like to talk about the witnesses. We currently have 66

22 witnesses we would like to call and we have an additional 4 expert

23 witnesses. The names of the witnesses are provided and we have also

24 specified which witnesses have demanded protective measures. Very few

25 have in fact asked to have protective witnesses -- measures. I'm sorry.

Page 10135

1 We -- there are very few that have asked to have these measures.

2 As far as the four expert witnesses are concerned, the first

3 witness, or expert witness on historical matters, we have already filed a

4 submission to the Trial Chamber concerning this witness. We have included

5 the report drafted by this witness, as well as all the documents he

6 intends to use. We have handed over this document last Friday. This

7 document may not yet have been handed over to the Trial Chamber, because

8 all the documents are attached to this report, and there are some hundred

9 or so documents.

10 So it is quite likely that the Trial Chamber may not have received

11 this yet, but we have already informed the Prosecution that we wanted to

12 call this witness. We have already handed over to the Prosecution a copy

13 of the report of the expert. This is not an official report. And we hope

14 that the expert will have enough time to share his comments with us. If

15 the Prosecution is, as it is entitled to according to the Rules, have

16 another 30 days to read all of this, we, of course, are quite prepared to

17 work something out with the Prosecution team. But we would be very

18 satisfied to be able to start with the report of this expert witness on

19 historical matters.

20 In addition, Your Honour, we need a week -- we need an extra week.

21 We must here apologise for this, because the Translation Department did

22 all it could to translate this document in the shortest time possible, and

23 we realised that we handed over the wrong document to the Translation

24 Department. So we apologise here, because we need an extra week to have

25 this document translated.

Page 10136

1 At the same time, I would like to congratulate the Translation

2 Department on the work it is doing, and we hope to be able to be provided

3 with the document in a week's time.

4 Now, as for the three other expert witnesses are concerned, I

5 don't think I want to take up too much of your time this morning. You did

6 mention that one of the experts was an expert on constitutional matters,

7 one was an expert on command and control in time of war and armed

8 conflict, and one expert on the command and control issues. And the

9 Defence counsel of General Hadzihasanovic will provide an insight into the

10 relevance of these experts and state why these expert witnesses are

11 particularly important in the presence of the Defence case. This will be

12 done and stated during the opening statement at the beginning of this

13 trial.

14 Of course, all of these reports will be disclosed, attached with

15 the relevant submissions to the Trial Chamber and the Prosecution as soon

16 as these reports are ready.

17 I can already state, Your Honour, that the second report, the

18 report of the expert on constitutional matters, is ready. We just have to

19 run through the translation again, but it is ready. And the military

20 expert has also told us that he was going to provide us with his report in

21 the following months, but we have not agreed on anything yet.

22 Now, as far as the other expert is concerned, we need to turn to

23 the Registry of this Tribunal with a view to be -- because of lack of

24 funds or resources. So as far as the last expert witness is concerned, I

25 don't think we need to file an application to the Chamber regarding this

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Page 10138

1 particular matter at the moment.

2 Now I would like to talk about the time the Defence teams need to

3 present its case. I believe, Your Honour, that the number of witnesses

4 might increase, in the light of the difficulties we have mentioned, in

5 other words, we are still discussing these matters with some states and

6 international organisations, because we would like these witnesses to be

7 called here without having to order a subpoena. We would, or might, have

8 to seize the Trial Chamber and ask that an order for subpoena be rendered.

9 But at this stage of the procedure, we don't think that we need to resort

10 to such measures.

11 So we have stated that we have 70 witnesses, including the 4

12 expert witnesses. We believe that the presentation of the Defence case

13 for General Hadzihasanovic will last approximately four months. On the

14 basis of the fact that the Prosecution will be entitled to cross-examine

15 the witnesses over the same period of time as the time required by the

16 Defence, on an equal basis.

17 I would, Your Honour, like to address this issue. I would like to

18 talk about the time needed by the Prosecution when the Prosecution was

19 presenting its case. I cannot vouch for the accuracy of these figures,

20 but the Prosecution team, including the witness called by the Chamber, has

21 had 132 hours and 18 minutes, 132 hours and 18 minutes, whereas the

22 Defence would need, or had had 112 hours and 23 minutes. Assuming that

23 the Prosecution team did proceed on an equal footing basis, we believe

24 that four months should be ample time to present the defence case as

25 regards General Hadzihasanovic, subject, of course, to the presentation of

Page 10139

1 new material. But as we have mentioned in our submissions, this will not

2 go beyond those additional number of days which we specified in our

3 motion. We mentioned that this would not go beyond 18 - I'm sorry,

4 Your Honour - 16 additional days, paragraph 14 of our submission which we

5 filed on Monday.

6 Your Honour, we therefore respectfully submit to the Trial Chamber

7 that it render a decision on three issues: A, the length of the defence

8 case of the accused Hadzihasanovic; B, as my -- as Defence counsel for

9 Mr. Kubura have stated, the presentation case of the second accused, and

10 also, C, a third decision needs to be rendered today, i.e., the total time

11 dedicated to the defence case.

12 According to the directive and the assignment of co-counsel, this

13 comes into effect on the following day, under Article 98 bis and ends with

14 the closing arguments in this particular case.

15 Your Honour, following the presentation of the Defence case of the

16 two accused, according to the Rules of Procedure and Evidence, there may

17 be a rebuttal on the part of the Prosecution and rejoinder on the part of

18 the Defence team, doubtless shorter, because we would only address those

19 matters that were addressed by the Prosecution in its rebuttal. We then

20 could call a number of witnesses, and we need extra time to draft the

21 final briefs. And, Your Honour, the question of the closing arguments,

22 which should only last a couple of days.

23 We believe, Your Honour, that all of this could be finalised in a

24 period of nine months. We would like to mention that this is one month

25 less than the presentation of the Prosecution case. I here refer to the

Page 10140

1 directive, the presentation of the defence case starts on the first day of

2 the trial and runs through until the date when the decision is rendered,

3 under Article 98 bis of the Rules of Procedure and Evidence.

4 THE INTERPRETER: Correction of the interpreter. This is for the

5 Prosecution case.

6 MR. BOURGON: [Interpretation] It ends with the end of the Defence

7 case and the closing argument. So we have therefore set up a schedule

8 providing you with a number of dates and we believe as regards the accused

9 Hadzihasanovic we will be able to finish towards the end of February. I

10 will let my colleagues, of course, talk about the second accused. We

11 believe that preparation time, rebuttal, rejoinder, and closing arguments,

12 we believe that nine months all in all would be a reasonable time to close

13 this case.

14 I believe, Your Honour, that I have answered the questions the

15 Trial Chamber have put to us as regards presentation of the defence case,

16 and, Your Honour, we would be happy to provide you with any further

17 information or any further information that the Trial Chamber may require.

18 Thank you, Your Honour.

19 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Bourgon. I shall

20 now give the floor to the other Defence counsel, but at this stage of the

21 proceedings, the Trial Chamber will, of course, discuss these matters,

22 i.e., the length of the defence case. But I have listened to what you

23 have told us very carefully and I would like to remind you that according

24 to the calculations we made, and according to the time the Prosecution

25 case needed when it was conducting its case, we used -- they actually had

Page 10141

1 7.399 minutes. I'm sorry. I wasn't able to break this down into hours

2 and minutes. We didn't have time to do this. Now, as far as the time the

3 Defence team for General Hadzihasanovic used for its cross-examination,

4 you had 7.995 minutes -- 5.995 -- 5.995.

5 As far as the cross-examination of General Kubura is concerned,

6 this lasted 373 minutes and the Trial Chamber had 1.318 minutes. So we're

7 not going to compare all of this and compare the minutes of time used, but

8 as we are here very much in a common law system, we need to rely on the

9 principle of fairness, and it is only normal and understandable that the

10 Defence has the same amount of time as the Prosecution.

11 In the light of this, we will, of course, look into this matter

12 very carefully and see whether the time you have allotted to your

13 witnesses and to the expert witnesses will require the same time as the

14 Prosecution has had. This should remain fair.

15 And I would like you to clarify or make something clear here. You

16 mentioned that you will have completed the presentation of your case in

17 February, and you said you needed all in all nine months. If we run

18 through until February, we have November, December, that's three months,

19 January, February, that totals five months. Does this mean that you

20 believe that the Defence counsel will require four months, four extra

21 months, which means that we would complete the case at the end of June?

22 There's a little issue here which is not a major one, but which I need to

23 mention.

24 There are two Judges here whose term will come to an end at the

25 end of June. This is something we need to keep in mind. Will we be able

Page 10142

1 to continue beyond the month of June? Well, if the mandate of the Judges

2 is extended, it's not a problem, but this is something we have to keep in

3 mind.

4 You have told us that you planned to complete your case at the end

5 of February, in broad terms, subject to the hearing being postponed, to

6 the fact that some of the witnesses may not be able to come or that some

7 witnesses are taken ill.

8 There's another point I wish you to provide us with some further

9 explanation. You said that after -- or at the end of the presentation of

10 the defence case and after the rebuttal or rejoinder, you stated you will

11 need extra time to prepare your final trial brief, and then, if I

12 understood you correctly, we will have the closing arguments. So this

13 does raise an issue. If you are preparing your final trial brief, and if

14 you need two months to prepare your final trial brief, this does impact

15 the proceedings. And I think something has to be made clear here.

16 As far as the documents are concerned, you told us how you were

17 going to handle your documents. This is, of course, under your

18 responsibility. I mean, you are in charge, of course. And you told us

19 that you were going to tender these documents once the witnesses are here.

20 And it is only if, at the end of the presentation of your case, some

21 documents have not been tendered, that you would file a motion with a view

22 to having these documents tendered into evidence. This is something we

23 have understood clearly.

24 In your submissions, you suggest that it might be of interest to

25 have an exhibit number, a provisional exhibit number. For instance, well,

Page 10143

1 like one of the documents, which is the constitution of

2 Bosnia-Herzegovina, I don't think this should be disputed by the

3 Prosecution. We could give this document or this exhibit a provisional

4 number or it could even be provided with a definitive number if the

5 Prosecution does not dispute this. If I run through the list of your

6 documents, I don't think some of these documents will be disputed and the

7 Prosecution can already state which documents it believes will not be

8 challenged and then we can give these documents or exhibits a definitive

9 number. If the Prosecution feels that some documents may be contested,

10 then it might be interesting to just provide them with a provisional

11 number -- documents just be marked for identification.

12 Let me now turn to the Defence lawyers again and I shall give you

13 the floor again.

14 MR. BOURGON: [Interpretation] Thank you, Your Honour. I think I

15 may have misled the Trial Chamber with the explanation I provided

16 regarding those three decisions that needed to be rendered. As far as the

17 presentation case of the defence case of Hadzihasanovic is concerned, we

18 believe that four months is ample time, four months running from the 18th

19 of October. This, theoretically, would run us through to the 18th of

20 February, bearing in mind the Christmas recess, we believe that the end of

21 February would be an appropriate time to conclude the presentation case

22 of -- the presentation of the defence case.

23 So this is four months, but given the winter recess, we believe

24 that we will run through to the end of February. After that, we will see

25 how much time would be allotted to the defence case of the second accused.

Page 10144

1 This is for the Defence counsel to broach this subject.

2 Now, as far as the rest of the proceedings are concerned, we

3 believe that two and a half months will be needed to cover the issue of

4 rebuttal, rejoinder, the Trial Chamber witnesses, the Chamber witnesses,

5 the preparation of final trial briefs and closing arguments. We believe

6 that this will fit into these two and a half months.

7 Now, as regards preparation time for the final trial brief, to be

8 more specific here, generally speaking, in other cases, as was the case

9 here, in the filing of motions pursuant to Article 98 bis, the

10 Trial Chamber grants approximately one month to the team, to the team of

11 attorneys, to prepare the briefs. Quite honestly, I haven't checked the

12 Rules of Procedure and Evidence, but I believe that it is for the

13 Trial Chamber to render a decision on this matter, notwithstanding the

14 time granted by the Trial Chamber, I believe that, generally speaking, the

15 time allotted for final trial briefs is approximately one month. This is

16 why we have assessed this time period of nine months to complete the case.

17 If we start on the 18th of October, notwithstanding what could -- what

18 would happen concerning request for certification submitted by the

19 Defence, we believe that we will be able to complete the case by the end

20 of June, in other words, six months in 2005 and two and a half months.

21 It's a little bit less than nine months. We believe that it is quite

22 likely for us to finish this case at the end of June. And four months for

23 Hadzihasanovic, and the time requested for the Defence of Kubura, and all

24 other matters.

25 Your Honours, we, of course, could complete the case much faster

Page 10145

1 if there is no rebuttal on the part of the Prosecution, no rejoinder, and

2 if the Trial Chamber calls no witnesses. We believe that this nine months

3 period is of an administrative nature. We believe that we need to give

4 you a number. The Registrar needs this time specification because we need

5 to, of course, assess the fees of the counsels on the basis of the time

6 spent in court.

7 This is why we request the Trial Chamber to render its decision on

8 this matter as fast as possible. So we have the presentation of the first

9 accused, the presentation of the case of the first accused, of the second

10 accused, and the time allotted to the defence case.

11 Your Honour, I believe I have answered all your questions. Thank

12 you, Your Honour.

13 JUDGE ANTONETTI: [Interpretation] Very well. I will now give the

14 floor to the other Defence team. But as far as the time limits are

15 concerned, we understand that you calculate that the end of the trial

16 would be towards the end of June. You know that an accused always has the

17 right, the possibility, of testifying himself. There have been such

18 cases, because initially there were refusals and then this was accepted.

19 When an accused testifies, this can often take several weeks.

20 I will allow you to think about this matter, but this is a

21 procedural matter that could extend the time required for the trial. If

22 one or both accused want to testify. If an accused testifies as a witness

23 in the course of the proceedings, well, these issues all have to be

24 re-examined. But let's assume that the accused won't be testifying.

25 Naturally, we will deliberate about these matters. The Trial Chamber will

Page 10146

1 deliberate about the question of the length of the trial. But before we

2 do so, I will give the floor to the other Defence team so that they can

3 inform us of their position.

4 Yes, Mr. Bourgon.

5 MR. BOURGON: [Interpretation] I apologise, Mr. President. I would

6 just like to add something at this point in time, because you have raised

7 a very important issue, an issue that I should have raised myself, and

8 that concerns the possibility of one of the accused testifying.

9 Mr. President, at this point in time, we haven't established a

10 position with regard to this possibility, with regard to the accused

11 testifying. This is an issue that is considered by the Defence on a

12 day-to-day basis and on the basis of the manner in which the proceedings

13 unfold. The Trial Chamber shouldn't believe that we have decided that the

14 accused will testify or won't testify. At the moment, we cannot state

15 what our position is.

16 Having said that, Mr. President, if necessary, we think that we

17 should organise the time that the Chamber allocates to us so that we don't

18 extend the trial indefinitely by having one of the accused testify at the

19 end of the trial. We believe that this is our responsibility. We have to

20 organise our time, and as soon as we are in a position to inform the

21 Trial Chamber about the matter, we will do so. Thank you, Mr. President.

22 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Bourgon. I will

23 now give the floor to the other Defence team.

24 MR. DIXON: Thank you, Your Honours.

25 JUDGE ANTONETTI: [Interpretation] Mr. Dixon.

Page 10147

1 MR. DIXON: [Previous translation continues] ... clarifying as my

2 learned friend Mr. Bourgon has said. The Defence for Mr. Hadzihasanovic

3 will commence their defence first, followed by Mr. Kubura thereafter. It

4 looks like on the timescale that Mr. Bourgon has suggested, that that

5 would be from the beginning of March next year.

6 However, they are, as Mr. Bourgon has indicated, joint expert

7 witnesses, so witnesses in the case of Mr. Hadzihasanovic, who will also

8 relate to Mr. Kubura. In addition to that, there will be witnesses called

9 in the case of Mr. Hadzihasanovic who are also relevant to Mr. Kubura, and

10 we will be asking questions of those witnesses. Our understanding is that

11 the usual procedure would be that the first Defence team would examine in

12 chief at the outset, followed by the questions from the second Defence

13 team. And the usual practice is that could be examination-in-chief or

14 cross-examination, depending on the nature of the evidence given by the

15 witness, followed then by cross-examination by the Prosecution, and then

16 re-examination again, only by the team that has called the witness. And

17 of course, Your Honours' questions as well thereafter.

18 We would request that that is the procedure that is followed for

19 the witnesses.

20 As our case will only commence much later, we have proposed that

21 our list of witnesses and exhibits at the moment be considered

22 provisional, as it may change, depending on the issues that arise. We

23 don't expect any drastic changes, but there may be some additional

24 witnesses or witnesses removed or additional documents or documents

25 removed. Certainly, if issues are covered sufficiently in the case of the

Page 10148

1 first defendant, there will be no need to call additional witnesses if the

2 point has already been made clear. And we will seek to cut down our

3 witness list if that is possible, in order to save time at the end of the

4 case.

5 As Your Honours will note from our witness list and list of

6 exhibits, the focus is very much on the 7th Brigade and what the structure

7 and composition of that brigade was in 1993. And of course, in

8 particular, looking at where that brigade was deployed at different times,

9 the key issue being the absence of the 7th Brigade in certain areas

10 charged in the indictment. And that will be the focus of the case for

11 Mr. Kubura.

12 We will be using an opening statement to make that clearer as to

13 how our case will be structured. We will make an opening statement, we

14 estimate, of about one hour at the commencement of our case, to explain

15 how the witnesses will address those key issues of the Defence for

16 Mr. Kubura.

17 We then have, as Your Honours know, 27 witnesses at this stage on

18 our witness list. And together with the documents that we have, we

19 anticipate that our case will take no longer than six weeks, which would

20 be 30 court days, to cover these witnesses and the introduction of the

21 exhibits.

22 On the subject of the exhibits, Your Honours, we have today

23 provided the Prosecution with copies of the exhibits that we intend to

24 introduce. There are some 209 of them at this stage. Many of them are

25 still in B/C/S, and we will be having some translated and we'll make those

Page 10149

1 translations available to the Prosecution as we get them. But we hope

2 that in the time from now until when our case commences, the Prosecution

3 will be able to consider those documents and determine whether any of them

4 are challenged. Most of them are documents that come directly from within

5 the 7th Brigade, and there will be witnesses called to testify about the

6 contents of each and every document. But it may speed up the process if

7 it's made clear in advance which documents are challenged by the

8 Prosecution and which not.

9 However, as our position has been all along, witnesses will

10 testify about the documents in order to add probative value to the

11 contents of those documents.

12 Your Honour, those are the only submissions we have in respect of

13 the defence case for Mr. Kubura. We would also support the suggestion

14 made by my learned friend Mr. Bourgon for the total case lasting nine

15 months. It appears to be a realistic figure, given everything that needs

16 to occur between now and the time when we finally present our closing

17 arguments. Thank you, Your Honours.

18 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Dixon.

19 Before I give the floor to the Prosecution to hear their remarks,

20 I would like to go into private session, please.

21 [Private session]

22 (Redacted)

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16 [Open session]

17 THE REGISTRAR: [Interpretation] We are in open session,

18 Mr. President.

19 JUDGE ANTONETTI: [Interpretation] Thank you very much. We are in

20 open session. I'm turning towards the Prosecution to ask them whether

21 they have any remarks following the statement by the Defence. What are

22 your remarks regarding the number of witnesses or the time requested for

23 the defence case?

24 MR. MUNDIS: Thank you, Mr. President.

25 Prosecution has just a few comments. They relate to some of

Page 10152

1 the -- actually, some of the other issues specifically raised by the

2 Defence. In terms of the timing, however, we don't anticipate that the

3 schedule as outlined initially by my learned colleague Mr. Bourgon will be

4 problematic, i.e., we would tend to agree that, at the current schedule,

5 concluding the case with closing arguments should be achievable by the end

6 of June, barring any unforeseen circumstances. And again, I think that

7 would most likely be the latest possible date that that would happen.

8 With respect to the witnesses on the two defence witness lists,

9 the Prosecution has no particular comments to make. We do have a couple

10 of comments and suggestions with respect to some of the issues pertaining

11 to those witnesses and the manner in which we might proceed most

12 expeditiously.

13 The first concerns the order of the witnesses. Mr. Bourgon told

14 us that he would endeavour to do that as quickly as possible. Clearly,

15 the Prosecution, at the very least, would need a witness list, the order

16 of witnesses for the first two weeks, in order for us to begin commencing

17 the searches. It's rather difficult to simply commence with 70 witnesses

18 without knowing the order. And I would respectfully request that the

19 Defence for Mr. Hadzihasanovic, or General Hadzihasanovic, provide us with

20 at least the order for the first two weeks, as quickly as possible, so

21 that we don't have any unexpected delays with respect to our ability to

22 cross-examine.

23 I should add in a similar vein, in light of what Mr. Bourgon and

24 Mr. Dixon have said about witnesses testifying, about the documents, and

25 also what the Trial Chamber's initial views were pertaining to detailing

Page 10153

1 which documents go to which counts or paragraphs in the indictment or

2 Prosecution pre-trial brief. Perhaps a middle ground would be when we are

3 provided with the actual order of the witnesses, that we also be provided

4 with which documents the Defence intends to tender through those

5 witnesses, since the witness list tells us which paragraphs and which

6 counts in the indictment, we could then cross-reference and know very

7 quickly which documents are going with which witness. So we would ask

8 that we be provided with that information at the same time that we're

9 provided with the order of the witnesses.

10 With respect to the Prosecution position in general concerning the

11 documents, I would tend to agree with what Your Honour, the Presiding

12 Judge, has said with respect to some of the documents. It's clear from

13 the list that we will be in a position to articulate any challenges that

14 we may have to the documents, such as the constitution. I wouldn't

15 imagine that we would have any challenge whatsoever to the Bosnian

16 constitution coming into evidence.

17 A large number of the documents, however, we're unable to comment

18 on them until we actually see them, and as Mr. Bourgon has said, that will

19 be early next week. So we would not even be in a position to indicate

20 whether we will be contesting documents until such time as we are able to

21 see the documents, review the documents, and of course, if we have a

22 witness list, we can then commence analysing the documents that will be

23 tendered first rather than systematically going through them in no

24 particular order.

25 Finally, with respect to the expert report, the Prosecution is

Page 10154

1 grateful to the Hadzihasanovic Defence team, both for raising this issue

2 with us earlier about their desire to call the expert witness first, and

3 also for providing us with an advance copy. Judging by the reaction of

4 the Trial Chamber and also in light of the fact that we haven't received

5 the actual filed version yet ourselves, we do appreciate the fact that

6 they provided us with an electronic copy of that report, and the report

7 only, late last Friday, the 1st of October.

8 We, in oral discussions with the Hadzihasanovic Defence team,

9 earlier indicated that we would do our best, once we have the report and

10 the underlying documents, to respond as quickly as possible to the choices

11 available to us pursuant to Rule 94 bis, which governs the admissibility

12 of expert reports. We have made some preliminary observations internally;

13 however, until we have all the documents, I would be unable to

14 definitively comply with Rule 94 bis, as I'm sure the Defence teams can

15 appreciate. However, we will continue our efforts in order to provide an

16 answer as quickly as possible, certainly within the 30 days envisioned by

17 Rule 94 bis (B), and we will certainly do everything we can to allow the

18 Defence team to proceed in the order and manner in which they prefer.

19 There is one issue, however, with respect to Rule 94 bis (B), and

20 Rule 94 bis (C), that is, in the event, and I stress "in the event," that

21 the Prosecution were to accept the expert witness statement - and we have

22 yet to make a decision - but if we were to accept the witness statement,

23 our interpretation of Rule 94 bis (C) is that if we accept the statement,

24 there is no need to call the expert witness to testify. I don't know what

25 the Defence's view on that issue would be, but in the event we, perhaps

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Page 10156

1 late next week, were to inform them that we accept the statement, then our

2 position would be there is no need to call the witness, in accordance with

3 Rule 94 bis (C). And I simply indicate that so that in the event we do

4 accept the statement and notify the Defence shortly before the scheduled

5 commencement of the trial, we simply would alert them to the fact that our

6 view would be there is no need to call that expert and they might want to

7 consider when they are scheduling the witnesses, that if we accept the

8 statement, there might not be a need for them to be called.

9 We have no further submissions at this point on any of the issues

10 discussed this morning. Thank you, Mr. President.

11 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Mundis. You have

12 raised a minor problem which concerns the expert witness. Rule 94 bis

13 says as follows: "The full statement of any expert witness to be called

14 by a party shall be disclosed within the time limit prescribed by the

15 Trial Chamber of -- or the Pre-Trial Judge. The Trial Chamber has ordered

16 that it should be done in the shortest possible time and that the expert

17 should be called for the 18th of October.

18 This Article also says that within 30 days of disclosure of the

19 statement of the expert witness, the party has to file a notice indicating

20 what will be done.

21 So the Prosecution has 30 days to inform themselves of the

22 contents and whether they will accept it or not, or if they wish to

23 cross-examine the expert witness, or whether they challenge the

24 qualifications of the witness. And Rule 94 bis (C) says if the opposing

25 party accepts the statement of the expert witness, the statement may be

Page 10157

1 admitted into evidence by the Trial Chamber.

2 An obvious issue here is whether the expert witness report will be

3 admitted or not. I give the floor to the Defence counsel.

4 MR. BOURGON: [Interpretation] Thank you, Mr. President. With

5 regard to the four expert witnesses, the Defence counsel wants to present

6 or call the one who is the least controversial one who is obviously the

7 historical expert. We wouldn't be surprised if the Prosecution agreed to

8 accept the statement, because there is nothing to debate. Nevertheless,

9 under Rule 94 bis (C), it says that in such a case, the statement may be

10 admitted into evidence. It is nevertheless possible, Mr. President, that

11 at such a stage we could decide not to call the witness. This would allow

12 us to save two days. Nevertheless, Mr. President, we would like to draw

13 the Trial Chamber's attention to the fact that the Judges might have

14 questions to ask after having read such a lengthy report. We can't say

15 immediately that we won't call this witness, but we would be prepared to

16 take this possibility into consideration in order to save time. Thank

17 you, Mr. President.

18 JUDGE ANTONETTI: [Interpretation] Very well. Just before our

19 break, then, there is another issue that was raised. The

20 Prosecution - and this is something that the Trial Chamber could agree

21 with - the Prosecution would like the Defence to provide at least 15 days

22 in advance the list of witnesses and of exhibits, and this is what the

23 Prosecution did in the course of the presentation of its case. We had the

24 list of witnesses to come for the following 15 days and a list of the

25 exhibits. So the Prosecution would like you to proceed in a similar

Page 10158

1 manner. Would it be possible for the Defence to provide us with a

2 document specifying the witnesses and the exhibits for the following 15

3 days?

4 MR. BOURGON: [Interpretation] Thank you, Mr. President. In fact,

5 this is how the Prosecution proceeded towards the end of its case, it was

6 very useful, at least for the Defence, and probably for the Trial Chamber

7 too. To the extent that this is possible, we will refer to the documents

8 that will be used for each witness. As far as establishing a schedule is

9 concerned, Mr. President, we wouldn't want to be tied down by this issue

10 of 15 days, but we will do all we can to inform the Prosecution, as soon

11 as possible, about the witnesses who will be called. Mr. President, the

12 Prosecution had this experience in the course of its case. Sometimes it

13 is very difficult to establish a schedule. But we will do our utmost to

14 inform the Prosecution as soon as possible about the witnesses who will be

15 called, even if there are certain modifications that might be subsequently

16 made. Thank you, Mr. President.

17 JUDGE ANTONETTI: [Interpretation] Very well. Would the other

18 Defence team like to add anything? No. In that case, we will deliberate

19 during the break. We will resume at about 11.00, after having had the

20 break, and we will then inform you of our decision about the estimated

21 length of time for the presentation of your case and about the witnesses.

22 And we would also like to say that, with regard to the expert witness's

23 report on the 18th of October, we'd like to specify about how we should

24 proceed. We don't have much time left. We don't have this report and we

25 do not know whether there will be questions we would like to put to the

Page 10159

1 witness. Perhaps that will be the case, but we don't have this report.

2 It is a matter that we will discuss, and we will then inform you about the

3 best way of proceeding.

4 We will resume at 11.00. It shouldn't take much time, because we

5 will inform you of our decision. We will now adjourn and resume at 11.00.

6 --- Recess taken at 10.29 a.m.

7 --- On resuming at 11.02 a.m.

8 JUDGE ANTONETTI: [Interpretation] We have resumed the -- we are

9 now resuming the hearing. The Trial Chamber Judges have conferred over

10 the issue of the number of witnesses and the time required for the

11 presentation of the defence case. The Trial Chamber has decided that the

12 Defence counsels will have to, by the 1st of July at the latest, have

13 completed the presentation of their evidence -- presentation of their

14 case.

15 Even in the event that the accused will testify, we will not go

16 beyond that date, the 1st of July. This date is in line with the Defence

17 forecasts, and I think that this is quite realistic and bears in mind the

18 number of witnesses, the material and documentary evidence that will be

19 presented in this case.

20 As far as the second issue is concerned, namely, the commencement

21 of the trial on the 18th of October and the historical expert witness

22 which is to be called, the Trial Chamber, after having conferred over this

23 issue, has looked into the Rules of Procedure and Evidence and estimated

24 that 30 days are required to let the Prosecution decide on this, make a

25 comment on this. And as we haven't had a report provided to us, and

Page 10160

1 therefore, the Prosecution has not had enough time to look into the

2 matter, the Trial Chamber feels, therefore, that this witness should not

3 be called on the 18th of October but should be called at a latter stage in

4 order to abide by the 30-day time limit. If the Prosecution raises no

5 issue in relation to this report, and if the Prosecution has a number of

6 issues to raise after having read the report, we will then ask for the

7 witness to be called to answer those questions.

8 More importantly, we don't know what this report contains, but

9 what we are concerned about is a period that precedes the 1990s in

10 historical terms. We want to find out what happened in the 1970s, 1980s,

11 and 1990s. We also are concerned with what happened in the period running

12 from 1990 to 1995. If the report deals with the Middle Ages, of course,

13 it will be of historical interest, but to a lesser degree, of course, and

14 not so relevant, as we are concerned with events that have unfolded in a

15 particular context. So we can only decide upon this once we have read the

16 report. We therefore ask you to postpone the calling of this witness and

17 call other witnesses as of the 18th of October onwards.

18 Is the Defence team able to call other witnesses? As you haven't

19 got much time left. Are you able to call one or two witnesses and are you

20 able to give us a tentative schedule for the week running from the 18th to

21 the 22nd of October? Can the Defence team enlighten us on this, please.

22 MR. BOURGON: [Interpretation] Thank you, Your Honour. We have

23 noted the instructions of the Trial Chamber regarding the postponement of

24 the testimony of the historical witness. We will let the Trial Chamber

25 know as of next week onwards which witnesses will be called during the

Page 10161

1 first week, and we hope that we will also be able to provide a list of

2 those witnesses which will be called over the period of a fortnight. We

3 will also like the Prosecution to let us know what their stance is as

4 regards the expert report before the 30 days are out. This means we could

5 rearrange our schedule. Because this expert witness is available at short

6 notice, and we could then change the order of witnesses at the last

7 minute. If the Prosecution is able to give us their response before the

8 30-day time limit, we would be satisfied with this. The expert report of

9 the Prosecution is something which we were provided with last December,

10 and as the Trial Chamber so requested and as the Prosecution so requested,

11 as the military expert was to testify in the month of January, we answered

12 in a very short space of time, and we did provide our comments as

13 regards -- as regarded that report, and we are convinced about this

14 because we have already discussed this with the Prosecution team. If they

15 are able to do this, they can tell us what their position is before the

16 30-day time limit.

17 JUDGE ANTONETTI: [Interpretation] Mr. Mundis, you have the floor.

18 MR. MUNDIS: Thank you, Mr. President. As I indicated both

19 earlier this morning and in previous discussions with the Defence, we will

20 endeavour to do just that. We will certainly provide our required input

21 pursuant to Rule 94 bis as quickly as we are able to do so, and the only

22 thing we're waiting for now are the supporting documents. As I indicated,

23 we have received an advance copy of the report. We've read it. We have

24 made some internal preliminary comments and observations within the

25 Prosecution team. We have an in-house expert who is currently analysing

Page 10162

1 that document for us. We are simply awaiting the underlying documents and

2 we anticipate that we'll be in a position to respond prior to the

3 commencement of trial, barring any unforeseen circumstances or any

4 difficulties that might arise with respect to that report and the

5 underlying documents. But I assure the Chamber and the Defence that we

6 will not drag our feet on this issue and that the Prosecution is

7 endeavouring to respond as quickly as possible so that the Defence team

8 can proceed in the manner in which they see fit.

9 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Mundis. I would

10 like to address another issue, but I would like to move into private

11 session, please.

12 [Private session]

13 (Redacted)

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23 THE REGISTRAR: [Interpretation] We are currently in open session.

24 JUDGE ANTONETTI: [Interpretation] Fine.

25 We have run through the agenda for today, dedicated to the

Page 10164

1 pre-Defence conference. Do the parties want to say anything about any

2 other issue? Mr. Bourgon, you have the floor.

3 MR. BOURGON: [Interpretation] Thank you, Your Honour. With the

4 permission of the Trial Chamber, I should like to raised three issues. We

5 agree following the discussions that have been held between the parties

6 and the information provided to the Trial Chamber this morning that the

7 opening statement of the accused Hadzihasanovic will take place on the

8 18th of October, the date of the commencement of the trial, but the

9 opening statement of the second accused will be heard when the

10 presentation of the Defence case of the second accused starts.

11 B, second issue, which has come to the surface over the last few

12 weeks. A person whose name has been mentioned during the presentation of

13 the Prosecution case has been arrested by the police in Bosnia-Herzegovina

14 and this person is currently charged by the state Supreme Court of

15 Bosnia-Herzegovina. This person, according to the limited information we

16 have, this person has been involved in some events that took place in

17 Orasac and which are mentioned in the indictment. Your Honour, we, after

18 having heard this, immediately made an application to the Government of

19 Bosnia and Herzegovina with a view to being provided with the report, as

20 well as the case or the charges against this person. I'm sorry. We did

21 not address our request to the state but to the Prosecutor of Bosnia and

22 Herzegovina. We're currently in contact with the prosecutor in charge of

23 this case. This person is an American prosecutor working for the

24 Government of Bosnia-Herzegovina, in the new body, charging people with

25 economic -- crimes of an economic nature.

Page 10165

1 So far, our request has been denied, and we have not received any

2 information concerning this case. We then filed another application and

3 asked the prosecutor and stated that Bosnia and Herzegovina has always

4 cooperated with this Tribunal, has always cooperated with the Prosecution

5 teams and the Defence teams, and that they were under a certain obligation

6 to provide some information. We discussed over the telephone with the

7 prosecutor yesterday and the prosecutor stated that they would provide us

8 with an answer in a very short space of time. We don't think, therefore,

9 that we will have to file a request in this regard, but we feel that it is

10 important that the Trial Chamber is kept abreast of these matters. And if

11 the authorities in Bosnia-Herzegovina deny us access to the documents in

12 this case, we will then have to seize the Chamber.

13 The second reason for which I wanted to address this matter is

14 that this particular case has been -- or the documents in this case have

15 been handed over to the Prosecution. We've discussed this with the

16 Prosecution team, and they told us that some of the material would have to

17 be handed over to us, under Article 68 of the Rules of Procedure and

18 Evidence. If we are able to get the material in this way, that is no

19 problem whatsoever. We'll be satisfied with that.

20 However, there is, I think, a question of principle that needs to

21 be raised here, and it runs as follows: The authorities in

22 Bosnia-Herzegovina are charging someone, an individual, and we would like

23 to have documents relating to this case, and the Defence team is perfectly

24 entitled to do so; it has a right to do so. So we do raise a question,

25 which runs as follows: Why are the documents handed over to the

Page 10166

1 Prosecution so that the Prosecution can then give them to the Defence

2 team? This does raise an issue, i.e., the cooperation of this new

3 Tribunal and the cooperation between international prosecutors who are

4 providing information to the Prosecution team so that the Prosecution team

5 [as interpreted] can then be handed over to the Defence team.

6 We have no particular applications to make at this stage, but we

7 would like to emphasise or clearly shed light on this situation, which we

8 don't think is quite right.

9 I have one last point I'd like to issue, but I'll let you answer

10 this one first.

11 JUDGE ANTONETTI: [Interpretation] I have listened very carefully

12 to what you have just said. I'll just sum up what you have just told us.

13 You have stated that a particular person is currently being charged in

14 Bosnia-Herzegovina, and the charges are related to Orasac. This is

15 something which the Trial Chamber, in its wisdom, had picked up on. There

16 was a dispatch which we read, which was related to this matter. So the

17 Defence team is concerned about the way in which the procedure develops.

18 How is it that local prosecutors, even though it is an international

19 prosecutor, addresses a copy of the documents to the Prosecution team and

20 denies Defence team access to these documents?

21 So we shall listen very carefully to the response provided by the

22 Prosecution team in this case.

23 MR. MUNDIS: Thank you, Mr. President. The answer is actually

24 quite simple. Under the terms of the Rome agreement, the Rules of the

25 Road project or programme, the file in the matter in question was

Page 10167

1 transferred to the Rules of the Road unit, pursuant to the Rome agreement.

2 We have in the past explained to the Trial Chamber how that programme

3 functions, or functioned. I should note that the agreement, the Rome

4 agreement, expired on the 1st of October, 2004, meaning that the Rules of

5 the Road unit no longer reviews cases from the local courts in the former

6 Yugoslavia.

7 The case in question, however, was transmitted to us prior to the

8 1st of October, and consequently, the Rules of the Road unit within the

9 Office of the Prosecution reviewed that file to make determinations as to

10 whether the proposed course of action in the state court of Bosnia and

11 Herzegovina met with international standards and that there was in fact a

12 prima facie case.

13 Part of that review process, as we have explained previously,

14 involves reviewing the evidence that the state court prosecutor wishes to

15 rely upon. As part of that process, part of the dossier compiled by the

16 state court prosecutor was transmitted here so that the Rules of the Road

17 unit could review it, and that is precisely why it is -- and that is the

18 only reason why this material is in the hands of the Office of the

19 Prosecution.

20 I was informed by one of the international prosecutors in the

21 state court that the Defence had requested this information. Our normal

22 search procedures would pick up Rules of the Road material. This material

23 was only transmitted to us in the first week of September. I then spoke

24 to the international prosecutor and informed him that we would be

25 disclosing material from this dossier, and I should add, Mr. President,

Page 10168

1 that a large part of this dossier, that the state court prosecutor has

2 consists of the transcripts of this trial, in the event -- during the

3 testimony of witnesses concerning the allegations of the beheading of

4 Mr. Popovic at Orasac.

5 So part of the dossier, a large part of the dossier, is actually

6 the testimony that was heard before this Trial Chamber. Nevertheless, we

7 are in a process of, as I have explained to the Defence, in the Office of

8 the Prosecutor here has discussed the issue with the international

9 prosecutors in the state court, and I believe that the witness statements

10 and other material which has not been provided to the Defence will be

11 provided to them no later than Friday of this week. I also have informed

12 the Defence in this case that in the event they sought leave to add any

13 additional witnesses based on this newly disclosed material, that the

14 Prosecution would not object to them doing so.

15 I should also indicate that the other documents contained in the

16 dossier of the state court prosecutor consists of material which has

17 previously been disclosed to the Defence in this case, and my

18 understanding is what is actually at issue is about 8 to 12 witness

19 statements, including statements taken by the international prosecutor in

20 Sarajevo, several of whom relate to witnesses who have previously

21 testified in this trial before this Trial Chamber.

22 So the short answer is: We have the material pursuant to the

23 Rules of the Road agreement, and we are working with the prosecutor in

24 Sarajevo to ascertain the best and promptest way to provide the material

25 to the Defence, and we anticipate doing so no later than Friday of this

Page 10169

1 week.

2 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Mundis. We've

3 taken note of your comments. You said that you were going to provide the

4 Defence a copy of the documents that you received from Bosnia and

5 Herzegovina with regard to this case. You will do so as soon as possible.

6 We are in a very particular situation. Proceedings are ongoing in

7 front of this -- before this International Tribunal, and there is a minor

8 element in a national court that concerns our proceedings. So there is an

9 overlapping in the case of these two proceedings. The Defence has made

10 oral submissions. We haven't been provided with any written submissions,

11 but naturally, for the sake of equality of arms and in order to protect

12 the Defence's rights, it would be reasonable for the Defence to have a

13 copy of all the documents from the local court.

14 If the Defence could call this witness, in inverted commas, this

15 witness could be called as part of the Prosecution's rebuttal, and the

16 Trial Chamber could also call the witness. In my personal opinion, I

17 think it would be useful for documents from these national proceedings to

18 be made available to everyone.

19 In addition, it is the Prosecution's duty, pursuant to the Rules,

20 to disclose all its evidence to the Defence, because this is part of the

21 indictment. It is your obligation to disclose material.

22 In response to the issue raised by Mr. Bourgon, the result is as

23 follows: The documents were presented to the Prosecution and will then be

24 disclosed to the Defence. But the international, American prosecutor

25 could also have provided you with a copy of the documents concerning the

Page 10170

1 proceedings, directly. But we can't issue an order to this prosecutor.

2 But I think everything will be arranged. What is the third issue you

3 would like to raise, Mr. Bourgon?

4 MR. BOURGON: [Interpretation] Thank you, Mr. President. There's a

5 more delicate issue I'd like to raise. We think it is the right moment to

6 discuss the matter, and I would like to comment on it briefly.

7 JUDGE ANTONETTI: [Interpretation] Since it is delicate, would you

8 like to address the matter in private session, in closed session?

9 MR. BOURGON: [Interpretation] We could go into private session,

10 Mr. President.

11 JUDGE ANTONETTI: [Interpretation] Very well. We will move into

12 private session, although I don't know what the delicate matter is.

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3 THE REGISTRAR: [Interpretation] We are back in open session,

4 Mr. President.

5 JUDGE ANTONETTI: [Interpretation] Very well. Having addressed all

6 the issues, I don't think that there are any other matters to be

7 discussed. We will now adjourn. And we would like to invite the parties

8 to return for the hearing that will be held on the 18th of October, at

9 2.15. Thank you.

10 --- Whereupon the Pre-Defence Conference adjourned

11 at 11.37 a.m.

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