1 Tuesday, 22 March 2005

2 [Open session]

3 --- Upon commencing at 2.19 p.m.

4 [The accused entered court]

5 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, will you please

6 call the case.

7 THE REGISTRAR: [Interpretation] Thank you, Mr. President. Case

8 number IT-01-47-T, the Prosecutor versus Enver Hadzihasanovic and Amir

9 Kubura.

10 JUDGE ANTONETTI: [Interpretation] Can we have the appearances for

11 the Prosecution, please.

12 MR. MUNDIS: Thank you, Mr. President. Good afternoon,

13 Your Honours, counsel and everyone in and around the courtroom. For the

14 Prosecution Stefan Waespi and Daryl Mundis assisted today by Mr. Andres

15 Vatter our case manager.

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

17 MS. RESIDOVIC: [Interpretation] Good afternoon, Mr. President,

18 Your Honours. On behalf of Enver Hadzihasanovic, Edina Residovic, lead

19 counsel, Stephane Bourgon, co-counsel, and Alexis Demirdjian, legal

20 assistant. Thank you.

21 MR. IBRISIMOVIC: [Interpretation] Good afternoon, Your Honours.

22 On behalf of Mr. Kubura, Rodney Dixon, Fahrudin Ibrisimovic, and Nermin

23 Mulalic, legal assistant.

24 JUDGE ANTONETTI: [Interpretation] On this day the 22nd of March,

25 2005, I bid good afternoon to all those present, the two representatives

1 of the Prosecution, the six Defence counsel, General Hadzihasanovic,

2 General Kubura, and all those present in this courtroom on the 200th day

3 of hearings. We shall first of all go into private session.

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2 [Open session]

3 JUDGE ANTONETTI: [Interpretation] The hearing is resumed in open

4 session, and we're going to address the question of scheduling for the

5 future weeks and months. So I shall give the floor to the Defence first.

6 Mr. Bourgon, who is already on his feet.

7 MR. BOURGON: [Interpretation] Thank you, Mr. President. We --

8 before we begin the discussion on the schedule, I would prefer to make a

9 statement in private session.

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9 [Open session]

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

11 Mr. President.

12 JUDGE ANTONETTI: [Interpretation] As we are in open session, the

13 aim of this part of the hearing is to discuss the schedule for the weeks

14 and months ahead, and the Defence told us that they wish to make some

15 observations about this, and Mr. Dixon has asked for some time to be

16 reserved for him, and the Prosecution also needs to provide us with some

17 information. So everyone will have a chance to comment on this issue, but

18 before giving the floor to the parties, I wish to recall that we, the

19 Judges, also have scheduling constraints. As you know, due to the

20 judicial -- the court holidays or the court recess which begins in the

21 week of the 24th of July, so we can't go beyond that. And also the Judges

22 are having a Plenary meeting on the 21st of July.

23 So in any event, should it be necessary, the last hearing can be

24 held on the 20th of July and not after that. So the 20th July is the

25 limit, the extreme limit. So this should be borne in mind.

1 We've also noted that there is a week that will -- when we will

2 not be sitting. That is the week from the 25th to the 29th of April, the

3 29th being a UN holiday.

4 Consequently, we have the end of the month of March, the three

5 weeks in April, the four weeks of May, four weeks in June, and three first

6 weeks of July on the outside. So within that time period, everything has

7 to be completed.

8 Who wishes to take the floor first? Mr. Dixon.

9 MR. DIXON: Thank you, Your Honours. Perhaps it's best if I

10 commence and then Mr. Mundis can follow me.

11 Your Honours, if I can say on behalf of all the parties having met

12 each other, we are confident that we can finish everything within the time

13 period that Your Honours have outlined and hopefully can be done sooner

14 than that.

15 Your Honours, looking at the case for Mr. Kubura, we propose that

16 his case should commence on the 11th of April. The reason why I gave that

17 date, Your Honour, is that if we do finish the military expert by Friday

18 the 1st of April, we would request a one-week break in the week commencing

19 4 April before we start our case. We wish to use that week to make final

20 contact with our witnesses and to bring many of them or make arrangements

21 to bring them to The Hague so that they can be ready to testify

22 thereafter. There will also be matters that we need to sort out with the

23 Prosecution in terms of documents and finalising any matters relating to

24 translation as well.

25 I can report on that matter, Your Honour, that at this stage we

1 foresee no problems with relation to the translation of the documents we

2 propose to use.

3 We were initially granted six weeks by Your Honours for our case.

4 We will be able to do our case within five weeks, and we therefore use --

5 wish to use the additional week as the week for the break before the start

6 of our case, the week commencing 4 April, and then to take five weeks

7 thereafter to complete our case taking into account the breaks in the week

8 Your Honour mentioned commencing 25 April, to finish our case by the week

9 ending 20 May.

10 Your Honours, I will talk more about how we will present the case

11 for Mr. Kubura, but before I do that, I did just wish to comment on the

12 closure of the case for Mr. Hadzihasanovic on the 1st of April. We are

13 using that date on the assumption that the expert witness can be completed

14 by then and also that any other matters such as Rule 92 bis matters will

15 also be finalised by then. If that wasn't to be the case, of course the

16 agenda would then have to shift back, and we would request that no matter

17 when the team for Mr. Hadzihasanovic closes its case, we are given the

18 opportunity to have a one-week break before we commence our case.

19 If, as Mr. Bourgon said yesterday, he's able to complete his

20 examination-in-chief of the military expert by the end of this week, we

21 would require no more than two hours on Tuesday with the military expert,

22 and as Mr. Mundis has said yesterday as well, he would require

23 approximately a day and a half, which would mean that by approximately

24 Wednesday next week, the cross-examination is complete, leaving some time

25 thereafter the Thursday and the Friday for re-examination and questions by

1 Your Honours. That would mean that we can finish everything by the 1st of

2 April, subject of course to any other outstanding matters that might

3 arise.

4 In addition to that through the helpful inquiries of the

5 registrar, we have been able to ascertain that there would be the

6 possibility of having additional hearings next week. I see Mr. Registrar

7 is shaking his head. But the last indication were is we would have the

8 possibility of adding if necessary, let's hope it doesn't come to that,

9 but if necessary we could use extra time next week to finish by 1 April.

10 If that is not possible, Your Honours, then we are going to have to ensure

11 that we use the time available to finish by 1 April. If it goes over 1

12 April, our only request is that we still be given a week when the

13 Hadzihasanovic team closes its case before we start our case, whenever

14 that might be. So that is our first request, Your Honour.

15 In respect of the way in which the case for Mr. Kubura will be

16 presented, assuming that we then commence with the opening on the 11th of

17 April, we would request that we only schedule witnesses for four days per

18 week, from Monday until Thursday, and that we do not schedule any

19 witnesses for the Friday of each week on the basis that we can use the

20 Friday as a reserve day if we run over, but more importantly that we can

21 use that day to finalise with the Prosecution any documents that we are

22 going to present to witnesses the following week, make sure all

23 translations are in order, and also provide further information in respect

24 of our Rule 65 summaries if necessary. That would over a five-week period

25 give us approximately 20 days of court time, that's excluding the Fridays

1 of each week, and we have assessed that we could complete all of our

2 witnesses within that time.

3 We will have approximately 20 witnesses. A final list is being

4 prepared and will be forwarded to Your Honours and the Prosecution by the

5 end of this month. As Your Honours will recall, the list we had initially

6 was a provisional list and we were given the option of putting in a final

7 list before we commenced our case. So we would be looking at

8 approximately one witness per day, sitting four days a week with the

9 Friday off for preparation but there to use if we need it, if there is any

10 running over of time.

11 So that is our second request, Your Honour, that we are permitted

12 to schedule witnesses for four days of the week only. And we have worked

13 out that we would be able to then complete our case by Friday, the 20th of

14 May.

15 Your Honour, the witnesses that are to be called are mostly

16 witnesses who were members of the 7th Brigade at the time. We will not be

17 calling any witnesses as to questions of general context. The witnesses

18 will all focus on the key allegations made against Mr. Kubura and, amongst

19 other things, will focus on showing that the 7th Brigade was not involved

20 in any of the alleged offences that are put forward in the indictment.

21 In respect of those witnesses, there are two former members of the

22 7th Brigade who are currently serving with the UN in UN missions outside

23 of Bosnia, and we are making arrangements to make sure they are able to

24 come here during the five-week period that we present our case. We might,

25 therefore, have to be a little flexible in terms of when they appear

1 because they need to get permission from the United Nations to come here

2 to testify. We don't anticipate there will be any problems with them

3 coming, but we just need to be able to fit them in when exactly they are

4 able to get leave in that five-week period.

5 And the second matter is that we will in all likelihood make an

6 application for two persons to give testimony by videolink because of

7 their health condition. I have not yet had the opportunity to speak to

8 Mr. Mundis about this issue, but I will do so in due course, and it might

9 be possible that this can be resolved between us so that a joint

10 application is made to Your Honours for that videolink to be set up at a

11 time that is convenient for both of the parties, once again during the

12 five-week period that I have identified.

13 As I've also said, we do not anticipate at this stage that there

14 will be any translation problems of the documents that we do wish to show

15 the witnesses. A list has already been prepared and those documents have

16 been given to the Prosecution, and many of those documents will be used by

17 the witnesses who do attend.

18 So, Your Honours, at this stage I merely bring to your attention

19 that the only two potential areas where the schedule might be disrupted is

20 the witnesses coming from the UN and the videolink, but we don't

21 anticipate that that would change the five-week period that we will use

22 for our case.

23 Your Honour, those are our submissions in respect of how we

24 propose to present the case for Mr. Kubura, and assuming that the team for

25 Mr. Hadzihasanovic completes by 1 April, that would be the schedule that

1 we propose, a one-week break, then commencing on the 11th of April,

2 running for two weeks, having a further week break as Your Honours have

3 indicated, and then a final three weeks, closing by Friday, the 20th of

4 May.

5 Your Honour, our applications would be that if that is in order

6 with you that that be granted so that we can then commence our planning to

7 ensure that the witnesses are brought here in time. Thank you for the

8 opportunity to address that matter. I know my learned friend Mr. Mundis

9 has submissions to make in response. Thank you, Your Honours.

10 JUDGE ANTONETTI: [Interpretation] Thank you for this information.

11 The Judges will discuss the matter, but I would personally like to say

12 that what you have suggested seems quite acceptable to me. The two

13 outstanding problems concern the two witnesses who work for the UN.

14 Naturally you should soon take the necessary steps to obtain authorisation

15 for them appear as witnesses. And then, as you know, the videolink is a

16 means that we have accepted, but this depends on the medical condition of

17 witnesses. I assume that you have medical arguments in support of your

18 request. This could proceed very quickly because the registrar has all

19 the resources necessary.

20 So we have 20 witnesses who are to appear at 20 hearings, and if

21 everything goes as we hope, the case should be closed -- your case should

22 be closed by the 20th of May provided that we can start with your case on

23 the 11th of April.

24 Mr. Mundis.

25 MR. MUNDIS: Thank you, Mr. President. I'm sure it was a slight

1 oversight by my learned colleague, Mr. Dixon, but when the parties first

2 met several weeks ago at my invitation, we all agreed and wanted to

3 reiterate that of course all issues pertaining to the scheduling is at the

4 control or under the control of the Trial Chamber and what the parties

5 were seeking to do first by meeting together and then by meeting with the

6 Chamber's legal officer and senior legal officer was to attempt to come up

7 with some scheduling ideas that were me actually agreeable to the parties

8 in order to put that before Your Honours with the hopeful expectation that

9 what we had proposed would be acceptable. But of course we all understand

10 that scheduling and control of the proceedings is fully in the hands of

11 the Trial Chamber.

12 Let me just respond to what distinct issues with respect to the

13 completion of the Hadzihasanovic case. As my learned colleague Mr. Dixon

14 pointed out, I did inform the Defence for both teams as well as the

15 Chamber's legal officer that based on the completion of our analysis of

16 the expert's report, it is anticipated that the Prosecution will require

17 no more than a day and a half to conduct its cross-examination. That of

18 course is subject to the caveat that we haven't heard all of the witness's

19 testimony, so I may need additional -- a little bit more time in the event

20 that during his viva voce testimony he expands upon some of the areas

21 covered in his report. Nevertheless, assuming again that Mr. Bourgon

22 completes his direct examination by the end of this week and that the

23 Kubura team takes two hours, I would expect to be done with the

24 cross-examination by the completion of our session on Wednesday, allowing

25 two days, Thursday and Friday, for re-examination and any questions that

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1 the Bench may have following examination by the parties. So I don't

2 anticipate the need for any additional sittings next week in order to

3 complete the testimony of the expert witness.

4 The second issue concerning the Hadzihasanovic -- completion of

5 the Hadzihasanovic case relates to the proposed 92 bis witness statements.

6 Your Honours are aware that the parties are in the process of discussing

7 that. We have informed the Hadzihasanovic Defence team that, of the

8 proposed witness statements, we're still reviewing two of them, but with

9 respect to the remainder of those, the Prosecution will not object to

10 those. I'm putting that on the record. Nor will we seek to have those

11 witnesses brought here for purposes of cross-examination. I expect to

12 have our analysis of the final two statements done within the next day or

13 so and I'll inform the Defence of that accordingly, but we don't

14 anticipate any problems with respect to the proposed written witness

15 statements that the Hadzihasanovic Defence has or will be filing before

16 Your Honours. So we don't anticipate any problems with either the expert

17 or the 92 bis statements in terms of impacting on the ability of the

18 Hadzihasanovic team to finish their trial by the 1st of April.

19 With respect to all of the scheduling issues raised by my learned

20 friend from the Kubura Defence, the Prosecution certainly agrees with

21 their proposals and thinks that their proposed schedule is both a

22 reasonable one and one which will allow us to complete the Kubura Defence

23 case by the 20th of May. I wouldn't anticipate any problems with the

24 videolink testimony, of course pending proper medical reports with respect

25 to the two witnesses that they've proposed to be heard by way of

1 videolink.

2 That brings me, Mr. President and Your Honours, to the first topic

3 that concerns the Prosecution, and that is, as Your Honours can probably

4 anticipate, the Prosecution will be filing a motion seeking leave to

5 reopen our case with respect to tendering a number of documents. I stress

6 the documents, because at this point, and we are finalising our

7 consideration on this issue, I wouldn't expect that we would be seeking

8 leave to call witnesses, although it's possible there may be a small

9 number of witnesses that we might seek leave to have called, and this of

10 course can also depend upon the position taken by the two Defence teams,

11 as Your Honours undoubtedly will recall during the Prosecution case when

12 large numbers of documents were tendered from the bar table the Defence

13 suggested that we have witnesses come in and testify about the documents,

14 where they came from, et cetera. So if the Chamber wishes us to call

15 people from the archives or investigators who receive the documents or

16 investigators who seize the documents, we may seek leave to do that, or of

17 course if ordered to do so, we will endeavour to bring those witnesses.

18 With respect to the documents, Mr. President, we anticipate that

19 we're talking less than 50 documents. All of the documents have

20 previously been disclosed -- as of this date have been disclosed to the

21 Defence. Once we have identified the precise documents that we will be

22 filing a motion seeking leave to reopen, we will then disclose those

23 specific documents to both Defence teams so there is no confusion as to

24 which documents are being considered.

25 We are working and endeavouring to file this motion as quickly as

1 possible so that the Defence can have an opportunity to respond to that

2 filing and, in the event that the Prosecution is granted lever to reopen,

3 we would seek the Trial Chamber's permission to do that immediately after

4 the close of the Kubura case. That would be the week commencing the 23rd

5 of May, so that there is no interruption or long gaps where time is being

6 eaten up pending resolution of the issue of the Prosecution reopening of

7 its case. So our goal is to get this motion filed as quickly as possible

8 so that the responses can be filed and Your Honours will have time to

9 consider our application to reopen our case, and if that is granted in

10 total or in part, we could immediately do that during the week of the 23rd

11 of May. And of course if the Defence requires additional time in order to

12 reopen parts of their case, that is entirely up to them, but we'll have to

13 just basically see how it goes with respect to the Prosecution motion to

14 reopen.

15 With respect to scheduling I do have one other issue,

16 Mr. President, that I would ask to address the Chamber in private session

17 if I may.

18 JUDGE ANTONETTI: [Interpretation] Let's go into private session.

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21 [Open session]

22 THE REGISTRAR: [Interpretation] We're back in open session,

23 Mr. President.

24 JUDGE ANTONETTI: [Interpretation] We're in open session now.

25 MR. BOURGON: [Interpretation] Thank you, Mr. President. I'd just

1 like to make a few comments with regard to the Prosecution's request to

2 open their case. If I have understood the Prosecution, they want to

3 reopen their case. It's not a matter of rebuttal evidence.

4 Mr. President, for the Defence it's important that the procedure

5 followed, that is to say whether or not the Prosecution be allowed to

6 reopen their case, this is something that should be determined on an

7 objective basis and above all we must be familiar with the procedures

8 followed. There are certain conditions that must be met, Mr. President in

9 order to be granted leave to reopen one's case. This does not necessarily

10 depend on the content of the evidence one wants to presents but, rather,

11 on the reason for which the Prosecution feels it is necessary to present

12 additional evidence to its case and the reasons for which they should be

13 granted leave to do so.

14 Mr. President, this is why we suggest a twofold procedure should

15 be followed. First of all, the Prosecution -- we would like the

16 Prosecution to inform us in its motion of the reasons for which they would

17 like to be granted leave to reopen their case. We'd also like to be

18 informed of the justification for such a course of action. We'd also like

19 to be informed of when the documents would be disclosed to us and in

20 particular to know whether these documents have already been disclosed to

21 us. If these are documents that have already been disclosed then we have

22 no problem. It is sufficient to inform us of the exhibit numbers. And

23 also we would like to know in what manner these documents will be taken

24 into consideration. We believe that a decision should first be rendered

25 with regard to how opportune it is to reopen their case, and then we

1 should be provided with information of the assessment of the evidence. We

2 believe that there are two stages that have to be followed.

3 First of all, there should be a request for leave to be granted, a

4 motion for leave to be granted, then we should have an assessment of what

5 the Prosecution actually desires in terms of witnesses and documents.

6 When I have a look at the dates that the Prosecution has put forward,

7 naturally at this point in time we don't know what the Trial Chamber has

8 in mind in terms of -- or in regard to additional evidence. We don't know

9 whether there will be additional evidence or not. But we have in such a

10 case very little time left for the closing arguments in July. We believe

11 that the schedule might be somewhat overcharged depending on what the

12 Chamber desires as far as additional evidence is concerned, whether this

13 evidence takes the forms of witnesses or documents.

14 Thank you, Mr. President.

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20 MR. DIXON: Your Honours, if we could perhaps go into private

21 session for the responses.

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16 [Open session]

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

18 JUDGE ANTONETTI: [Interpretation] So in open session I'm asking

19 the Prosecution to tell me what the legal basis is for the request to

20 reopen the Prosecution case, and I wanted to know whether it was based on

21 Rule 85 paragraph (A)(iii), or on the jurisprudence of the Tribunal with

22 respect to the reopening of a case.

23 MR. MUNDIS: Thank you, Mr. President. It is in respect of the

24 jurisprudence of the Tribunal. Rule -- our interpretation of Rule

25 85(A)(iii) is that that type of evidence pursuant to the Rule which refers

1 to rebuttal would be the type of evidence which the Prosecution could not

2 have reasonably anticipated putting before the Trial Chamber during the

3 Prosecution case in chief.

4 We are talking here about evidence which came into our possession

5 after the close of our case. Therefore, we couldn't have anticipated

6 making such evidence available to Your Honours. Your Honours might recall

7 previously the Trial Chamber actually referred the parties to the Celebici

8 appeals judgement which talks about reopening. We will be relying on and

9 our motion will put forward our position, but we are relying on the

10 jurisprudence of the Tribunal and case law to the effect of the legal

11 standards that are involved in reopening of a case, particularly when one

12 is dealing with evidence that came into one of the party's possession

13 after the close of their case. So we're not at this point talking about a

14 case in rebuttal but, rather, reopening our case with respect to evidence

15 which came into our possession after the close of our case.

16 JUDGE ANTONETTI: [Interpretation] Thank you. Does the Defence

17 have anything to add? Mr. Bourgon? No? The other Defence team?

18 MR. DIXON: Your Honour, thank you, yes. I know this matter will

19 be discussed at length in the motions, but if we can at this point simply

20 clarify that, as my learned friend has said, all of the documents that

21 they will be relying upon they weren't in receipt of before they closed

22 their case, and that they will only be seeking to introduce documents

23 which they actually received after the close of the case. I think that

24 narrows the issue much more, because we have seen documents presented in

25 cross-examination that the Prosecution did have before the close of their

1 case which were disclosed to us but which they didn't choose to introduce

2 in their case, and there have been instances where some of those documents

3 have been introduced for the limited purpose of memory refreshing. And as

4 I understand from what my learned friend is saying, none of those

5 documents will be applied to be introduced after the close of their case

6 but it is only documents they received after the -- the close of their

7 case.

8 Our submission will be, Your Honours, and of course we will

9 outline this more once we have the motion, as I said earlier on, that if

10 those documents could have been obtained during the Prosecution case

11 through proper investigation and due diligence, then the Prosecution

12 should not be permitted now when they have obtained the information

13 through ongoing investigations to use that material. If that material was

14 readily available to them in 2000 or 2001, then that's when it should have

15 been obtained, and they should not be permitted to investigating

16 endlessly. As we've said many times before some end has to be put to this

17 matter. But we will outline that more in our written submissions and oral

18 submissions later, Your Honour. Thank you.

19 JUDGE ANTONETTI: [Interpretation] Very well, Mr. Mundis.

20 MR. MUNDIS: Thank you. Let me -- let me again stress so that

21 everyone is 100 per cent absolutely clear. I have directed the members of

22 our trial team and the support team for this members of this trial team to

23 consider only documents that came into the Prosecution's possession after

24 the close of our case. We are not considering any documents that we had

25 in our possession prior to the close of our case. The issue of due

1 diligence will be addressed in our -- in our motion but just so that

2 everyone is clear, we are only focusing on documents that came into our

3 possession after the 22nd of July, 2004, which, if memory serves me, is

4 the day the Prosecution rested its case.

5 JUDGE ANTONETTI: [Interpretation] Very well. Looking at the

6 transcript in English, Mr. Dixon son has contributed a small shade of

7 meaning. They are telling us that the Prosecution should not be granted

8 leave to produce new documents if they had the ability to have them before

9 in the year 2000 and 2001. This is a very fine nuance. What is the

10 position of the Prosecution regarding this point?

11 MR. MUNDIS: Mr. President, without going into too great of

12 detail, the case law does require the Prosecution or any party seeking to

13 reopen its case or to present additional evidence such as additional

14 evidence on appeal pursuant to Rule 115 and the standards are -- are very,

15 very similar, the party who wishes to put additional or new evidence

16 before a Chamber must demonstrate due diligence. Our motion will -- will

17 address the issue of due diligence and the steps that were taken in terms

18 of the investigation of this case. We will do that by attaching to our

19 motion some of the requests what we call requests for assistance, RFAs,

20 which are documents that we send to the Bosnian authorities seeking access

21 to archives, documents, et cetera, witnesses. We will attach some of

22 those requests for assistance to our motion as annexes demonstrating the

23 steps we took.

24 I also anticipate that attached to our motion there very well

25 might be an affidavit from the deputy investigation commander who oversaw,

1 among other things, the investigation of this case, who will explain in

2 his affidavit or statement the steps that were taken with respect to some

3 of the archives. But let me also say that which again should not come as

4 a surprise, as the Trial Chamber is aware, the Tribunal -- or the

5 Prosecution and the Tribunal earlier this year has indicted Rasim Delic,

6 and many of the investigative steps that resulted in us obtaining these

7 documents after the close of the Prosecution case against the two accused

8 in this courtroom, these documents were obtained pursuant to our

9 investigation which resulted in the indictment of Rasim Delic. So what

10 happened was we were looking at a different time period, that is 1995, and

11 among the material pertaining to 1995 were documents relating to 1993, for

12 example. And so our motion will set forth exactly what steps we took,

13 what access we had to certain archives, and the results of those steps

14 which, our view is, will explain the steps we took with respect to this

15 investigation and our submission in our written pleadings will explain

16 fully what steps were taken and what the results of those steps were,

17 whether access was granted or whether access for whatever reason was

18 denied to us to go in and search certain archives for material. But we

19 will -- I anticipate our motion will be very clear as to the steps we

20 took. We will be explaining basically the source of the documents. They

21 come from one of three archives as well as a specific request for

22 assistance concerning court records of Mr. Ramo Durmis, which is a fourth

23 category. Our motion will be -- will break down the documents in terms of

24 where they came from and will explain to the Trial Chamber the steps that

25 we took in fulfilling the due diligence obligations that we have.

1 So we believe that our motion will address these issues, and of

2 course the Defence will respond to our motion and -- so that the Trial

3 Chamber is in a position to render whatever decision the Chamber feels

4 best advances the cause of truth finding and justice.

5 JUDGE ANTONETTI: [Interpretation] Very well. The sooner the

6 better. So please seek to file those motions as soon as possible so that

7 the Defence can respond and so that we, too, will be able to render our

8 decisions in writing so as to avoid any waste of time.

9 Mr. Bourgon.

10 MR. BOURGON: [Interpretation] Thank you, Mr. President. We are

11 having an exchange of view about the investigations, but the point that I

12 wish to address is that the decision on granting leave should be separate

13 from the decision on the substance. What I wish to say is that the

14 documents should be mixed with the decision to reopen or not.

15 When the Prosecution presents its arguments about due diligence in

16 obtaining those documents, we believe that it is important not to consider

17 the documents at that stage but, rather, to consider how certain documents

18 were obtained, and then if a grant -- leave is granted, then we can look

19 at the substance of those documents.

20 JUDGE ANTONETTI: [Interpretation] Yes. Mr. Mundis, the Defence

21 would like your motion to be divided up into two. First, motion to seek

22 leave to reopen and then the motion will be motivated by the fact that you

23 did not have knowledge of those documents, that you discovered them during

24 subsequent investigations, et cetera. And once the decision is rendered

25 regarding the opportuneness of reopening the case, then there would be a

1 second motion regarding the admission of so many documents, which would

2 allow the Defence the possibility to challenge the documents one by one.

3 So they are suggesting that you divide this procedure into two.

4 MR. MUNDIS: Which again, Mr. President, is -- comes as no

5 surprise. The Defence informed us of their position with respect to this

6 question of modalities during our earlier meetings.

7 Our position, Mr. President, really is a twofold one. First of

8 all, the proposed procedure that Mr. Bourgon has described would

9 inevitably take many, many weeks to complete in terms of us filing a

10 motions, the Defence responding, a written response from the Chamber, then

11 us filing a second motion, then the Defence responding, then perhaps a

12 document-by-document argument similar to the contested document hearings

13 we had during the course of the trial followed by a decision, followed by

14 us reopening, tendering the documents, and closing our case.

15 Our position is that the Tribunal is comprised of Trial Chambers

16 made up of professional Judges. There can be, and I've said this in other

17 contexts, there can be no prejudice with professional Judges, and so our

18 position is: In order to expedite the proceedings, there is no need to go

19 through a two-step process because the two-step process will inevitably

20 mean that we do not finish our work here by the 20th of July or,

21 alternatively, because of the length of time involved, the Prosecution is

22 precluded from putting important new evidence before Your Honours, thus

23 precluding perhaps the Trial Chamber from completely fulfilling its duties

24 and responsibilities.

25 Our view is because Your Honours are professional Judges and

1 because the issue of prejudice does not arise when we're dealing with

2 professional Judges, we believe the best course of action would be for

3 Your Honours to have our motion, have any documents that explain the due

4 diligence steps that we take attached as annexes and for us to file at the

5 same time the proposed documents so that Your Honours can make

6 determinations as to the relevance or importance of the documents all in

7 one decision-making process, if you will. We believe that the alternative

8 would be a timely one and because of the fact that Your Honours are

9 professional Judges, we believe that the issue of potential prejudice

10 is -- is, to use a colloquial term, a non-starter because of the nature of

11 cases held and heard before Trial Chambers of professional Judges.

12 JUDGE ANTONETTI: [Interpretation] I should like to remind the

13 parties that when they file a motion they do what they wish, and then it's

14 up to the Judges to appreciate and assess them.

15 Mr. Bourgon.

16 MR. BOURGON: [Interpretation] Thank you, Mr. President. I haven't

17 counted the number of times the word "professional" was used, but in any

18 way, we are fully aware that the Chamber is highly professional, and this

19 is something that the Defence has never doubted. That is not the point.

20 The point is that when we're talking about due diligence in

21 obtaining something is one thing, and what is the content of the document

22 is quite a different matter. These are two separate matters.

23 I wanted to get a document. Did I show due diligence in obtaining

24 it? That is one thing. What is the document and what is its use is

25 another matter. This document should not be an argument to affect the due

1 diligence discussion, and we believe that there is every possibility of

2 completing everything within the time limits discussed. The Prosecution

3 file their motion, then we respond very quickly to expedite things. If

4 leave is granted, if it has fulfilled the criteria necessary for

5 reopening, then we look at the documents. I think it is the week of the

6 3rd of May. We will have plenty of time to see during that week, to see

7 what the documents are, by the point is whether the Prosecution fulfils

8 the criteria to be granted leave to reopen its case.

9 JUDGE ANTONETTI: [Interpretation] Very well. We will discuss this

10 amongst ourselves, and we will let you know what is to be done.

11 I should like us to go into private session once again.

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23 [Open session]

24 THE REGISTRAR: [No interpretation]

25 JUDGE ANTONETTI: [Interpretation] Very well. Now that we are in

1 open session, are there any other matters to be raised? If there are no

2 other matters to be raised, I invite you to come to the hearing that will

3 start tomorrow at 2.15. Thank you.

4 --- Whereupon the hearing adjourned at 6.52 p.m.,

5 to be reconvened on Wednesday, the 23rd day of

6 March, 2005, at 2.15 p.m.

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