1 Thursday, 19 May 2005
2 [Open session]
3 --- Upon commencing at 9.31 p.m.
4 [The accused entered court]
5 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, could you call
6 the case, please.
7 THE REGISTRAR: [Interpretation] Case Number IT-01-47-T, the
8 Prosecutor versus Enver Hadzihasanovic and Amir Kubura.
9 JUDGE ANTONETTI: [Interpretation] Thank you.
10 Could we have the appearances for the Prosecution, please.
11 MR. MUNDIS: Good morning, Mr. President. Thank you. Good
12 morning, Your Honours, counsel, everyone in and around the courtroom.
13 For the Prosecution, Matthias Neuner, Daryl Mundis, assisted by Andres
14 Vatter, our case manager.
15 JUDGE ANTONETTI: [Interpretation] Could we have the appearances
16 for Defence counsel, please.
17 MS. RESIDOVIC: [Interpretation] Good morning, Mr. President.
18 Good morning, Your Honours. On behalf of General Enver Hadzihasanovic,
19 Edina Residovic, lead counsel, and Stephane Bourgon, co-counsel. Thank
21 MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honours. On
22 behalf of Mr. Kubura, Rodney Dixon, Fahrudin Ibrisimovic, and our legal
23 assistant, Nermin Mulalic.
24 JUDGE ANTONETTI: [Interpretation] I would like to greet everyone
25 in the courtroom, General Hadzihasanovic, Brigadier Kubura, and I would
1 also like to greet everyone else in the courtroom, in particular the
2 registrar who has returned after having performed his duties pursuant to
3 Rule 92 bis. The hearing today will be concerned with technical issues.
4 I would now like to ask the registrar to go into private session.
5 [Private session]
5 [Open session]
6 THE REGISTRAR: [Interpretation] We're back in open session, Mr.
8 JUDGE ANTONETTI: [Interpretation] Now that we are back in open
9 session, Brigadier Kubura's Defence team will be closing its case. We'll
10 have two 92 bis statements. Mr. Registrar, have you distributed them?
11 Very well. The Prosecution has received them. Everyone has
12 received them. I'll now give the floor to Brigadier Kubura's Defence.
13 Are you initially requesting that these two statements be admitted into
15 MR. DIXON: Yes. Thank you, Your Honours. Our application would
16 be that these two statements be admitted under 92 bis on the basis that
17 they comply with the requirements of that rule and that the Prosecution
18 has not sought to cross-examine either of these witnesses on the contents
19 of their statements.
20 As I indicated at the last hearing, Your Honours, in respect of
21 Mr. Brzina there is one new document attached to his 92 bis statement. I
22 understand that that won't be given a separate number, but it would be
23 part of the exhibit number which consists of the statement and also the
24 documents attached thereto. So our request would be for two new DK
25 numbers, one for the statement of Mr. Brzina and one for the statement of
1 Mr. Horo. In addition to that, Your Honours will note that the statement
2 of Mr. Brzina refers to two documents which are currently marked for
3 identification, that's DK11 and DK12, being commendations to the 7th
4 Brigade and to the brigade commander, Mr. Koricic, respectively. The
5 witness was able to recognise these commendations as is stated in his 92
6 bis statement and we would therefore request that those documents which
7 were marked for identification now be given full exhibit numbers, DK11
8 and DK12.
9 For Mr. Horo, there were no new documents shown to him. There
10 were existing exhibits shown to him, and that is reflected in his
11 statement. There is no need to give any new numbers to those, as they
12 are already exhibits. Thank you, Your Honours.
13 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Dixon. You want
14 two numbers for the two statements and one of the statements has a
15 document annexed to it, one that we are already familiar with. But DK11
16 and DK12 which are documents that have been marked for identification are
17 documents that you would like to be assigned final exhibit numbers, given
18 that these documents have been recognised by the person who gave a 92 bis
20 Before the Chamber rules, and we will perhaps be ruling after the
21 break, I would like to hear what the Prosecution's position is about
22 these two documents.
23 MR. MUNDIS: Thank you, Mr. President. The Prosecution has no
24 objection, first of all, with respect to DK11 and DK12 being given final
25 exhibit numbers. Moreover, the Prosecution has no objection to the two
1 92 bis statements being a admitted into evidence. And finally the
2 Prosecution has no objection of the annex of Mr. Brzina also being part
3 of the 92 bis statement as being given a single exhibit number within
4 that 92 bis statement.
5 So basically, Mr. President, Your Honours, we have no objection
6 to any of the documents as put forward by the Kubura Defence team. Thank
8 JUDGE ANTONETTI: [Interpretation] Very well. We will rule after
9 the break as soon as we have seen the documents that the registrar will
10 provide us with shortly.
11 I will first ask General Hadzihasanovic's Defence team whether
12 they have any comments to make.
13 MS. RESIDOVIC: [Interpretation] For the sake of the transcript I
14 would just like to say that General Hadzihasanovic's Defence has no
15 objections to having these two 92 bis statements admitted into evidence
16 and we don't object to admitting into evidence the annex to Mr. Brzina's
17 statement and we also have no objections to assigning final exhibit
18 numbers to the documents DK11 and DK12. Thank you.
19 JUDGE ANTONETTI: [Interpretation] Thank you, and once more I will
20 now give the floor to Brigadier Kubura's Defence. And I would like to
21 ask you whether having made this request you are now in a position to
22 close your case pursuant to Rule 85.
23 MR. DIXON: Your Honour, thank you. There is one matter that we
24 must deal with before Mr. Ibrisimovic will formally close the case and
25 that is the remainder of documents on our proposed exhibit list. We wish
1 to withdraw all of those documents. We will not seek to enter any of
2 those documents into evidence, nor will we seek to enter into evidence
3 any of the remaining DK documents that are only marked for
4 identification. We will only be relying upon the DK documents that have
5 final exhibit numbers, totalling 62 or thereabouts. As Your Honours will
6 be aware, our position consistently throughout the trial has been that
7 documents should only be admitted into evidence if they are able to be
8 identified by a witness and if that testimony can be cross-examined by
9 the opposing party. Of course, because the rules are very flexible a
10 number of documents have been admitted without a witness, but in our
11 submission the primary point is the weight to be attached to them. And
12 even though in many of the cases a witness has simply identified the
13 document and not discussed the contents in great detail, in some
14 instances the content has been discussed extensively by the witness and
15 our submission has been, especially for documents that the Prosecution
16 seek to identify as important and wish to rely upon in their case, that a
17 witness should be called in order to satisfactory the adversarial aspect
18 of the Tribunal's procedure, which is to allow the other party to test
19 that evidence, as these documents have not been collected by an
20 investigating judge in the process of a traditional civil-law approach.
21 Your Honours know our position very well, I don't wish to repeat it.
22 Just but to clarify, that is the reason why we're not seeking to rely on
23 any of the other documents that are on our exhibit list. Thank you, Your
25 JUDGE ANTONETTI: [Interpretation] Very well. To summarise what
1 you have just said, you will be withdrawing the documents included on the
2 list you had when you were planning on calling witnesses, but as you are
3 withdrawing these witnesses you will not be tendering these documents
4 into evidence. And you said that in your opinion a document can only be
5 presented and admitted into evidence once a witness has identified the
6 document. And for all of these reasons, you have just stated that before
7 you officially declare that a case is closed you would like us to take
8 note of the fact that you are withdrawing these documents.
9 Does General Hadzihasanovic's Defence team have any comments to
10 make with regard to the fact that the documents that have not been shown
11 to witnesses will be withdrawn by General Kubura's Defence? Mr. Bourgon.
12 MR. BOURGON: [Interpretation] Good day, Mr. President. Good day,
13 Your Honours. We would just like to add something to the submissions
14 made by the co-accused. We believe that the weight given to a document
15 depends to a large extent on the fact that it's been identified by a
16 witness, that it has been discussed in the course of the proceedings, or
17 it's been discussed by the witness who drafted it or used the document.
18 We ourselves in the course of our -- the presentation of our case
19 presented a number of documents through witnesses. Recently we also made
20 a request to have documents filed and we stated that when these
21 documents, secondary documents, documents that could have been used with
22 a witness but in order to save time and because these documents are
23 secondary, we did not -- we filed them without going through witnesses.
24 However, we agree with the arguments presented by the other Defence team,
25 and that is to say that the weight attached to a document depends to a
1 large extent on the fact that it's been identified, that it's been used
2 or discussed in the course of the proceedings. Thank you, Mr. President.
3 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Bourgon.
4 Are there any comments that the Prosecution would like to make with
5 regard to withdrawing these documents?
6 MR. MUNDIS: No comments, Mr. President. Thank you.
7 [Trial Chamber confers]
8 JUDGE ANTONETTI: [Interpretation] In that case, the Chamber takes
9 note that the fact that Brigadier Kubura's Defence team will be
10 withdrawing documents that weren't presented when witnesses appeared, and
11 this concerns documents that were marked for identification, documents
12 that have a DK number, marked for identification. So we grant that
14 Having dealt with that issue, I will give the floor to Brigadier
15 Kubura's Defence team again.
16 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President. We
17 are grateful to the Trial Chamber for having granted us the time to
18 present our case. We also are grateful to all the other participants in
19 the courtroom, members of the Prosecution, my colleagues from General
20 Hadzihasanovic's Defence team, and we hope that we will be able to
21 conclude this case as rapidly as possible, and we are now in a position
22 to officially state that we have closed our case.
23 JUDGE ANTONETTI: [Interpretation] Very well. The Trial Chamber
24 takes note of the fact that you have now closed your case.
25 We'll now move on to the second stage. Yesterday the Prosecution
1 said that they wanted to make oral submissions concerning documents that
2 they had. If we analyse the letter that we had from the director of the
3 OSA. We'll listen to what Mr. Mundis has to say and I also believe that
4 the Prosecution pursuant to Rule 85 (A) (iii) would like to start with
5 its rebuttal. Mr. Mundis, I give you the floor.
6 MR. MUNDIS: Thank you, Mr. President. As a preliminary matter,
7 as we had indicated I guess on Tuesday of this week, we might have sought
8 or would be in a position to seek an oral application to reply to the
9 Defence responses to our application to re-open our case. Upon
10 reflection and having had an opportunity to read the translation of the
11 Hadzihasanovic response, Mr. President, the Prosecution will not seek
12 leave to reply to the submissions of either of the Defence teams with
13 respect to our application to re-open.
14 Nevertheless, as we earlier indicated and in light of the facts
15 which Mr. Bourgon received late last week and which was passed up to the
16 Trial Chamber on Tuesday, we would like an opportunity to simply provide
17 the Trial Chamber with some additional information concerning the compact
18 disc which the Office of the Prosecutor received in October of 2002, as
19 that relates to our application to re-open. And I would respectfully ask
20 to address you on that limited issue and not to go into the arguments as
21 put forward by either of the Defence teams in their response to our
22 application to re-open.
23 At the outset, Your Honours, let me direct your attention to the
24 scope of the material we're talking about here as of the exhibits
25 attached to our 22 April 2005 application to re-open. Nine of the 24
1 documents are potentially affected by the development, and for the record
2 let me simply indicate so that everyone is aware precisely of the
3 documents or the proposed exhibits that we are referring to this morning,
4 and it is of course only these nine documents. As Your Honours are
5 aware, we had given proposed exhibit numbers to these documents for ease
6 of consideration. With respect to our application, the following nine
7 documents as referred to in the numerical annexes are the documents that
8 are being discussed this morning: Annex 1, Annex 4, Annex 5, Annex 6,
9 Annex 8, Annex 9, Annex 10, Annex 11, and Annex 12. And as we have
10 previously indicated, these documents are easily identifiable by the
11 solid black border that are contained on each of these documents, which
12 is a direct result of the electronic formatting in which we received them
13 in October 2004.
14 The material in question was a -- and let's turn now to the
15 October 2002 material which was the subject of the facts that Mr. Bourgon
16 provided us with late last week and to the Trial Chamber earlier this
17 week. There is a request for assistance, an RFA, dated 5 September 2002.
18 This was also attached to our application to re-open as Annex H. The
19 response to that RFA dated 3 October 2002 immediately follows the RFA
20 under Annex H in our application. Attached to that response is a list
21 describing briefly the 796 hard-copy files and the fact that one CD with
22 114 files were provided to the Prosecution on 3 October. I will point
23 out, Mr. President, Your Honours, that that CD which is listed as having
24 114 files actually contains 114 electronic folders, and within those
25 folders, there are approximately 6.000 individual files. And I'll be
1 describing those in a few moments.
2 Let me give Your Honours a brief chronology of what happened
3 after the Prosecution received this material. As included in Annex H,
4 there is a receipt dated 3 October 2002 in which Investigator Don King of
5 the Sarajevo field office collected that material from FOSS, the then
6 Bosnian intelligence agency. On 7 October 2002, investigator King
7 transferred that material, that is four boxes of binders containing the
8 796 hard-copy files and the CD. On 7 October 2002, investigator King
9 transferred that material to the investigations officer within the
10 Sarajevo field office. On 18 October 2002, that material was tagged for
11 transport to the ICTY by way of diplomatic pouch in a vehicle -- in an
12 ICTY vehicle. There are periodic runs made from the various field
13 offices in the former Yugoslavia to The Hague.
14 On 30 October 2002, that material arrived at the Tribunal
15 building. On 19 November 2002, this material - again the 796 hard-copy
16 files and the CD, were MIFed, that's M-I-F-ed, and were delivered to the
17 Evidence Unit by then-acting leader of team 9, Peter Hackshaw. The term
18 MIF is a term to indicate a preliminary step in entering material into
19 the Evidence Unit. The Evidence Unit log of 19 November 2002 indicates
20 that Mr. Hackshaw submitted the four box binders containing the 796
21 hard-copy files and the single CD together. The fact that the material
22 -- the hard-copy files and the CD were submitted simultaneously, as will
23 be discussed later, may, and I stress the word may, be important.
24 The Evidence Unit then processed the 796 hard-copy files by
25 physically stamps ERN numbers on each page of every document of these
1 hard-copy files. With respect to the material on the CD, however, this
2 material was not processed by the Evidence Unit. And I believe it's
3 important for Your Honours to understand in a -- briefly how this process
4 or this procedure of processing electronic material is done.
5 The procedure for processing electronic documents has undergone
6 several changes, largely as a result of technological innovations and
7 improvements. Electronic software is used to electronically stamp ERN
8 numbers on to electronic documents. When this technology was first
9 available, it was only possible to electronically stamp documents that
10 were in the Microsoft Word format. As the technology improved, however,
11 it was possible to electronically stamp documents in other electronic
13 The documents that were -- or the files that were on the CD
14 obtained in October 2002 are what are known as -- or are a type of TIFF
15 files but are in an electronic format that seems to have been
16 incompatible with the Tribunal's technology in 2002. And in fact, as we
17 have previously indicated, the same problem existed when this material
18 was provided in electronic format to the Office of the Prosecution in
19 October 2004. It is therefore possible that the technological problems
20 made it impossible to process the material on the CD that arrived in
21 2002. At any rate, Your Honours, the material was not electronically
22 processed, and the CD containing these files was assigned a single ERN
23 number and stored in the Evidence Unit.
24 Because this material was not processed and due to the electronic
25 format of this material, it was not possible for it to be electronically
1 searched, which, as Your Honours can appreciate, is crucial in light of
2 the extremely large amount of material which is contained in the Evidence
3 Unit. At the time, this CD was entered into the Evidence Unit there were
4 approximately 4.7 million pages of material in the Evidence Unit of the
5 Tribunal. And we would submit that material which is not available for
6 electronic searching using the OTP system ZyFIND might as well not even
7 exist, due to the fact that there is such a large volume of material
8 contained in the Evidence Unit.
9 Let me at this point also inform the Chamber that the CD, the
10 October 2002 CD, on its face was written the phrase "OA Vranduk,"
11 Operation Vranduk. This is also reflected in the receipts that are put
12 forward at Annex H. And for the record, Vranduk is V-r-a-n-d-u-k.
13 Although the 5 September 2002 RFA, as usually the case for
14 obvious operational and security requirements, is silent as to the
15 specific target of the investigation for which the material was sought,
16 the MIF form, that is the form that Mr. Hackshaw electronically produced
17 at the time, the material was submitted to the Evidence Unit, the MIF
18 form associated with the CD indicates that this material related to what
19 was known as the Tusk 2, that's T-u-s-k 2, investigation. Tusk 2 was the
20 internal OTP code word for the investigation that ultimately led to the
21 indictment of Rasim Delic. This investigation, however, was also
22 targeting a number of individuals, including Alija Izetbegovic, at the
23 time of his death in 2003.
24 The CD which was clearly labelled "Operation Vranduk" related to
25 the Tusk 2 investigation.
1 My colleague has pointed out that the -- perhaps it wasn't clear.
2 But again, the Tusk 2 investigation included a number of targets. Mr.
3 Delic has been indicted pursuant to that investigation and, if it wasn't
4 clear, Mr. Alija Izetbegovic was also part of that investigation until
5 the time of his death in 2003.
6 In order to ascertain precisely what happened to this CD, I have
7 spoken, as I indicated on Tuesday, with a number of current and former
8 members of Team 9. And Your Honours will recall, Team 9 was the
9 investigative team that was looking at Bosniak perpetrators. Among the
10 individuals that I have spoken with concerning this CD are Mr. Withopf,
11 Mr. Hackshaw, and Alistair MacLeod, who was the lead political analyst on
12 this team. These three individuals played leading roles in this
13 investigation both in the current case and in the Tusk 2 investigation.
14 As the Trial Chamber is aware, Mr. Withopf left the Tribunal at the end
15 of May 2004. Mr. Hackshaw and Mr. MacLeod left the Tribunal in August
16 2004 respectively. Neither Mr. Hackshaw nor Mr. MacLeod have any
17 recollection of receiving the CD in October 2002, although both recall
18 the 796 hard-copy files in the four box binders. Mr. Hackshaw, however,
19 does acknowledge that since his name is on the MIF form and the Evidence
20 Unit log that there is no doubt that he did in fact receive the CD and
21 did in fact enter it into the Evidence Unit.
22 Mr. Withopf has a slightly different recollection concerning the
23 October 2002 CD. He informed he that he has a vague recollection of
24 receiving a CD and recalls being informed by some of the of the team - he
25 does not recall who - that that team member was unable to open and view
1 the documents on the CD due to the formatting problems.
2 As a result of this, Mr. Withopf seems to recall attempting to
3 get another electronic copy of the material in a different format and
4 specifically in a format that was compatible with the ICTY/OTP
5 technological requirements.
6 Based on this information from Mr. Withopf, we undertook a number
7 of additional steps to determine if, in fact, a subsequent copy of the CD
8 was provided before the October 2004 CD. We have been unable to locate
9 or identify any other such copy of this CD in the system. Moreover, I
10 have spoken to the Team 9 language assistants, who would have been the
11 logical persons to undertake an initial review of the material on the
12 October 2002 CD, since one could have presumed that the material would
13 have been in B/C/S. None of the language assistants have any
14 recollection of receiving or attempting to open the October 2002 CD.
15 We have also been unable to find any records or documents
16 indicating that a further request was submitted to the Bosnian
17 authorities, asking them to provide the information on the CD in a format
18 compatible with the Tribunal's operational -- IT operational systems.
19 At the same time and in a slightly related matter, one of the
20 investigators on the team seems to recall a CD from another case that had
21 similar problems, and that investigator believes Mr. Withopf's
22 recollection might be concerning a CD in a completely unrelated case. So
23 it is unclear if Mr. Withopf's recollection relates to the October 2002
24 CD or to a completely different CD in a completely different case.
25 No other Team 9 members have any recollection of reviewing,
1 analysing, or even seeing the 2002 CD.
2 Moreover, neither Mr. Withopf nor Mr. Hackshaw were familiar with
3 the term "Operation Vranduk" and neither had any recollection as to what
4 that operation involved. Mr. MacLeod was familiar with the term
5 "Operation Vranduk" and what that operation entailed, but indicated to me
6 he only became aware of that operation in the spring of 2004, and thus,
7 as would have been the case with respect to Mr. Withopf and Mr. Hackshaw
8 who were completely unfamiliar with that term, none of these three
9 leading individuals in this investigation would have been aware of the
10 significance of the CD received in 2002, which was labelled "Vranduk."
11 There are, of course, Your Honours, several possible explanations
12 for why the material on the CD was not properly reviewed and analysed at
13 the time of its receipt. There are three plausible explanations, the
14 first being that the clerk who received the CD in the Evidence Unit and
15 who is no longer -- also no longer with the Tribunal, it is possible that
16 the receiving clerk attempted to open the CD, determined that the files
17 were in an incompatible format with the technology then existing for
18 electronic stamping, simply assigned a single ERN number to the CD, and
19 placed it into the evidence vault without taking any further action. And
20 of course, as I indicated before, since it was incompatible with the
21 electronic systems then in use, that material would not have been
22 electronically available for us to search.
23 Although Mr. Hackshaw has no recollection of the CD, we would
24 submit that it is of course entirely possible that Mr. Hackshaw
25 considered the CD to simply be electronic versions of the material
1 contained in the 796 hard-copy files. He would have known that the
2 hard-copy files would have been physically stamped with ERN numbers,
3 scanned -- electronically scanned into the database, and thus available
4 for electronic searching. And consequently, he would have considered or
5 could have considered the CD to be duplicative of the material contained
6 in the hard-copy files and thus took no action with the CD.
7 It is of course also entirely plausible that the potential
8 significance of the material on the CD was simply overlooked due to the
9 extreme pressures that Team 9 was under at that time. In the middle of
10 2002, the team leader and one of the trial attorneys on that team left
11 the Tribunal. Mr. Hackshaw was then appointed the acting team leader and
12 consequently his responsibilities increased significantly. Prior to that
13 time he had been one of the lead investigators in the current case from
14 the late summer of 2002. As the acting team leader he was then
15 responsible for not only the present case, but also the investigative
16 work with respect to the Halilovic case, the Oric case, and also the Tusk
17 2 investigation.
18 As I indicated on Tuesday, Mr. President, it has turned out to be
19 extremely difficult to determine precisely what happened and why that
20 material was not properly processed, reviewed, and analysed. Our
21 inquiries have resulted in the information that I have provided you with
22 this morning. The Prosecution at this point has nothing further to add
23 with respect to this material.
24 We will -- our position, Mr. President, is that the material is
25 important. We believe that the fact that this CD was not processed does
1 not mean that we did not exercise due diligence. And our position is
2 that the Prosecution will not withdraw the nine documents in question
3 from consideration with respect to our application to re-open.
4 I can attempt to answer any questions, but the information as we
5 have uncovered it in the past few days is what I've indicated to you in
6 the past 20 minutes or so. Thank you.
7 JUDGE ANTONETTI: [Interpretation] Right then. Thank you, Mr.
8 Mundis, for all these explanations. Before I give the floor to the
9 Defence in order to hear their comments, let me just sum up what you've
10 just said.
11 First of all, you recognise the fact that the nine documents had
12 indeed been included in this famous CD. Secondly, you mentioned that
13 this CD arrived in 2002, that it had been registered by your services.
14 There was an RN number that had been attributed to it by -- ERN number,
15 but that this CD could not have been used because at the time it was
16 impossible, due to technical reasons having to do with the equipment at
17 your disposal, to actually read it. It was technically impossible to
18 deal with it, and therefore this CD had not been used. So this is the
19 basis of your argument.
20 And as a secondary argument, so to say, you've also mentioned
21 that at a time there was this Tusk 2 operation investigating the dealings
22 of President Izetbegovic, Rasim Delic and others, and that within the
23 framework of this team, Team Number 2, and within the framework of that
24 work, this CD was included in the so-called Vranduk operation, but that
25 the Team 9 official, Mr. Hackshaw, had no knowledge of the contents of
1 that CD and that it is due to those circumstances that that document
2 could not have been appreciated, that its value could not have been
3 properly appreciated at the time, and that it was only fairly recently
4 that those nine additional documents had come to your attention. And so
5 that basically sums up your argument.
6 And on the basis of that, you stick to what you mentioned in your
7 submissions, that is to say asking the Chamber to accept these additional
8 documents. Okay this, as I said, sums up your position.
9 I'm now going to turn to the Defence, who should be in a position
10 to make comments. Now, the experts. Mr. Bourgon.
11 MR. BOURGON: [Interpretation] Thank you, Mr. President. As a
12 matter of fact, I do have quite a few comments I'd like to make in
13 response to what my learned friend has said pertaining to the way in
14 which they obtained these documents, first of all; failure to use them;
15 and finally their request to have them tendered into evidence as
16 additional Prosecution exhibits.
17 My first comment, Mr. President, would simply consist of
18 confirming the fact that notwithstanding the documents, or rather the
19 arguments made by my learned friend this morning, I mean, even if we had
20 not received any letters from the OSA last week we would still maintain
21 our position, that is to say that the Prosecution, even if they had
22 received this document in October 2004 had not demonstrated reasonable
23 due diligence in order to obtain the contents of those documents. My
24 point today with regard to the fact that they got this document two years
25 earlier, in fact, simply confirms the fact that there is a clear lack of
1 diligence on the part of the Prosecution in this respect.
2 The Defence position is the following.
3 This investigation started in 1999. I'm not going to go back to
4 everything that we have already mentioned in our response. Now, the
5 criteria of reasonable due diligence has been established and well
6 explained by the Appeals Chamber, and according to those criteria, it is
7 quite clear that the Prosecution could have obtained those documents
8 much, much earlier. Today we've heard some extra information, according
9 to which this document is supposed to have been received in 2002, that is
10 to say two years earlier. So I do have a couple of comments I'd like to
11 make in the light of all this, in the light of the points made by my
12 learned friend.
13 First of all, the Prosecution tells us that the materials in
14 question are Annexes 1, 4, 5, 6, 8, 9, 10, 11, and 12. At first sight,
15 in as far as the Defence team is concerned, it appears that Annexes 2, 3,
16 and 7 would also be a part of the document which had been received in
17 2002. This shows, Mr. President, to what extent -- if we were to go down
18 the path of possibly considering the admission of these documents, to
19 what extent it would be necessary for us to establish quite a few facts
20 before we do so, that is to say we would need to actually establish the
21 facts mentioned by my colleague this morning. At the very least, we
22 would need copies of the materials that they received in 2002 in order to
23 be able to compare it with the documents from 2004. That is to say we
24 would need to have this CD that they received in 2002 as well as the CD
25 they got in 2004.
1 JUDGE ANTONETTI: [Interpretation] I do apologise for interrupting
2 you, but this famous CD, the Defence never got that?
3 MR. BOURGON: [Interpretation] No, never. We really are not aware
4 -- we did -- we were not aware of the existence of that CD before we got
5 the letter last week. It was a CD that was obtained by the Prosecution,
6 and the Defence had no idea of the existence of that CD.
7 JUDGE ANTONETTI: [Interpretation] But on the other hand, this 796
8 documents had been revealed to you?
9 MR. BOURGON: [Interpretation] No, no, no. Perhaps some of them,
10 but we don't know. I mean, every time that the Prosecution submits a
11 document to us, together with a document we get a receipt. We've got all
12 our receipts and Prosecution has copies of those receipts, so we know
13 exactly what we did receive and on what date and in what form. With
14 regard to disclosure according to Rule 66 or 68 or in some cases
15 following requests made by the Defence --
16 JUDGE ANTONETTI: [Interpretation] Mr. Bourgon, I'm going to give
17 you the floor in a moment.
18 But, Mr. Mundis, I'd like you to tell us how come according to
19 Rules 66 and 68 when these documents reached you in 2002 they were never
20 disclosed to the Defence?
21 MR. MUNDIS: If we're talking, Mr. President, about the material
22 on the CD, because it was not in a searchable electronic format, it was
23 never processed and reviewed by the Office of the Prosecution.
24 If we're talking about the hard-copy files, that material would
25 have been reviewed or should have been reviewed better Rule 68 purposes
1 and it would have only been material captured under Rule 68 that would
2 have disclosed, unless any of that material would have been part of the
3 Prosecution's case, in which it would have been disclosed under Rule 66.
4 The 2004 CD which contains the same information that was on the
5 2002 CD was finally disclosed to the Defence on I believe the 3rd or 4th
6 of March this year, after we were finally able to convert the 6.000 files
7 into an electronic format that was usable and was able to be put into the
8 EDS, Electronic Disclosure Suite.
9 JUDGE ANTONETTI: [Interpretation] Thank you for replying to my
11 Mr. Bourgon, you can have the floor again.
12 MR. BOURGON: [Interpretation] Thank you, Mr. President. I
13 believe it might be useful to confirm at this stage that the 2002
14 documents when the Prosecution got them were not forwarded automatically
15 forwarded to the Defence. As my learned colleague has said, they would
16 have been sent to us only if they on the basis of their own analysis were
17 able to decide that it was a part of exculpatory proof according to Rule
18 68. But in our view, already in 2002 the Prosecution did not prove that
19 there was reasonable due diligence on their part. We believe that back
20 in 2002 we should have received all that.
21 Now, in this case that we're dealing with today, we have a motion
22 filed by the Prosecution. Paragraph 14 says that: "On the 5th of
23 September, 2002, the Prosecution requested information on the Mujahedin
24 from the FOSS department." And on the 3rd of October, as my learned
25 friend said this morning, they actually did receive that document.
1 As of September 2002, Mr. President, the Prosecution was
2 following this Mujahedin trial, as it were, and the indictment had
3 already been confirmed since 199 -- 2001, sorry, and the accused had
4 appeared before the Court, had entered their pleas, and preparatory work
5 was actual underway since the actual trial started in December of 2003.
6 When these documents were received by the Prosecution, and my
7 colleagues have said that they received these documents without actually
8 knowing what inquiry it was meant for, the only link that was mentioned
9 this morning was the code name Tusk 2, which seems to indicate an
10 investigation with regard to Muslim targets, in other words crimes which
11 are supposed to have been committed by Bosniaks. We've heard references
12 to Mr. Delic and Mr. Izetbegovic, but the backdrop to all this is the
13 fact that there was a request for information on foreigner fighters, and
14 this does include an implicit reference to the indictment with regard to
15 the two defendants in this trial. To say that the CD that they received
16 -- well, they could have thought that it was -- okay, an electronic copy
17 of these 796 documents. Well I believe that this piece of information,
18 even though I can't of course argue against it, but I would at least like
19 to check it out because it seems to me a bit bizarre that a CD with 114
20 files could correspond to that number of hard-copy documents. Without
21 checking it out, I mean it sounds a bit bizarre.
22 These documents that were obtained in September 2002, well what
23 is certain is that the Prosecution did receive them and they have in fact
24 confirmed that this morning. So they had those documents in their
25 possession and they were obtained within a specific framework, an
1 investigation aimed at the Mujahedin. Perhaps the framework was not
2 quite specific enough with regard to the immediate target of this
3 investigation, but they at least knew that it was the information that
4 they requested with regard to foreigner fighters. We've mentioned in our
5 response that the request made to the security services, in our view,
6 could have been submitted much, much earlier. The investigation started
7 in 1999 and it was only in 2002 that a request was made in order to
8 obtain the documents from the security services.
9 And as we've explained in some detail in our response, we are
10 talking about a government here which never ever hesitated to cooperate.
11 They always provided free access to their archives. On two occasions,
12 the Prosecution had the opportunity to visit those archives on the spot
13 and to take a good look at all the materials that they thought could be
14 useful for them according to their approach. And in some instances they
15 even took the original documents. And perhaps my learned friend could
16 confirm it. In some instances these original documents were not even
18 So the Prosecution was aware of what they were looking for in
19 2002. They had the assistance of the government and they had the
20 documents in their possession. I have a certain understanding for my
21 colleague who took charge of this case a little late, but we would like
22 the preceding individuals who are involved here to appear here because we
23 believe these individuals know a lot more about this matter, but
24 naturally we can't confirm any of this this morning.
25 As far as the explanations that the Prosecution has provided are
1 concerned, we said that perhaps someone tried to access the CD, but we
2 know that when the 2002 CD was accessed last week it functioned, it
3 worked properly. If it was functioning properly last week, it could have
4 functioned properly in 2002. But this is something that should be
5 checked in any event. The fact that the material was not reviewed for
6 whatever reasons in our opinion shows a lack of diligence, as we have
7 already said. Even if this material had been obtained in 2004, the
8 Prosecution would have obtained 6.000 pages in October 2004. It's only
9 four months later that these documents were included in the EDS system in
10 order to disclose them to the Defence.
11 How much time did it take the Prosecution to realise that these
12 documents were relevant? When they had a look at the first document that
13 concerned Operation Vranduk, and this is what my colleague himself has
14 said, one was aware of what Vranduk meant in 2004; however, the
15 Prosecution did not alert the Chamber and tell the Chamber, Mr.
16 President, we have received additional information and we are going to
17 disclose this information to the Defence and then at a subsequent date we
18 can tell you whether this information is necessary or not. In our
19 opinion, this is the minimum that the Prosecution should have done, given
20 that in 2004 the case had commenced -- in fact, the Prosecution already
21 closed its case. The Prosecution had closed its case, we had obtained
22 additional information which is not disclosed to the Defence for four
23 months, the Chamber is not informed of the fact that this material exists
24 and might be relevant, that it might be necessary to re-open the case.
25 And as my colleague said, the first time the re-opening was mentioned was
1 I believe, perhaps I'm mistaken, but I believe it was in January. But
2 discussing the possibility of re-opening the case without knowing why,
3 without knowing where the documents come from, in our opinion, Mr.
4 President, this does not demonstrate due diligence.
5 So Mr. President, I'll stop here. All I would like to say is
6 that in our opinion even if we hadn't been made familiar with the event
7 that we realised had taken place last week, I would say that the
8 Prosecution didn't show due diligence to obtain those documents, even if
9 they had obtained them only in 2004, but the fact that they obtained them
10 in 2002 shows all the more that they were not diligent, whether it's a
11 Prosecutor involved or an investigator. Given the resources that the
12 Prosecution has, given all the staff members that they have recourse to,
13 well, one could say that that puts them in a position of force, but that
14 could also by their weakness. That's not for us to say anything about
15 that. All we can note is the documents were there, they were documents
16 that were available and that these documents were never presented, they
17 were never filed before this day.
18 One last issue, Mr. President, with regard to the documents. We
19 do not know precisely which documents were received in 2002. In order to
20 determine which documents were received, we would need the 796 documents,
21 the ones received in 2002, and the two CDs so that we could compare them
22 with the 6.000 pages in the EDS system and -- in order to compare them
23 with all the documents disclosed to us by the Prosecution in the course
24 of the proceedings and before the commencement of the proceedings. It's
25 necessary to make such comparisons.
1 However, Mr. President, I believe that this is an exercise that
2 would not be of much use at this point in time. It would -- it's not
3 really necessary, because we believe that the Prosecution has not
4 demonstrated due diligence, which is the first thing that they have to
5 demonstrate before dealing with the documents, before considering whether
6 these documents could have an influence on the proceedings. If this test
7 is passed, as we have mentioned in our response, there are a number of
8 arguments that we have to show that these documents don't pass the test
9 to be admitted into the -- into evidence at this point in time without
10 prejudice to the rights of the accused.
11 And for all these reasons, Mr. President, in the light of the
12 facts that we found out about last week and regardless of these facts, we
13 request that you dismiss the Prosecution's motion to re-open the case so
14 that we can close the case now on the basis of the evidence that has
15 already been presented. Thank you, Mr. President.
16 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Bourgon.
17 I will now give the floor to Brigadier Kubura's Defence team if there's
18 anything they would like to say about this subject.
19 MR. DIXON: Thank you, Your Honours. Only a few additional
20 points. In our submission, all that the letter changes is that it's now
21 clear the Prosecution took the first step of acting diligently by
22 requesting documentation about the Mujahedin from the Bosnian security
23 services in 1992. But they didn't take the next very important step in
24 the process of checking that information once it got in and taking all
25 reasonable and diligent steps to ensure that that material was analysed
1 to be used in the case, and of course to be disclosed to the Defence as
2 well under Rule 66 or potentially Rule 68.
3 So our submission is that even though the first step might have
4 been taken, the most important part of the requirement of due diligence
5 hasn't been satisfied in that the Prosecution didn't seek to analyse the
6 CD when it got in. If it wasn't readable, well, they should have asked
7 the Bosnian government for another copy. They should have sought to
8 print out what was on the CD if it couldn't be searched electronically.
9 There are a number of very practical steps that could have been
10 undertaken by a reasonable and diligent investigator.
11 In our submission, it's very difficult to not appreciate how an
12 investigator receiving that information from a request about the
13 Mujahedin would not have understood immediately the value of such a CD to
14 a case of this nature, and indeed to other cases. We've seen in respect
15 of Mr. Delic that he's been charged with some of the same offences as the
16 accused in this case.
17 In addition to that, if Your Honours look at the material in
18 Annex H, it's quite plain from the reply from the Bosnian authorities
19 that not only are they sending 796 documents, but they are also sending a
20 compact disc containing 114 files and they provide a list of the
21 documents that are incorporated. It appears that those refer to the 796
22 documents, but it's quite clear that at the end of that list they
23 indicate that they've also included one compact disc with 114 files. In
24 our submission, any reasonable and diligent investigator would have and
25 should have taken the time to establish exactly what was on that disk and
1 whether there was any overlap or not. It appears from the material on
2 its face that there is no overlap, and an investigator should have,
3 therefore, followed the necessary step of analysing what was on that
5 Your Honours, the explanations that have been given by Mr. Mundis
6 as possible explanations are therefore, in our view, not sufficient to
7 meet the very high burden which rests on the Prosecution when they seek
8 to re-open their case. Your Honours will know from the jurisprudence of
9 this Tribunal, and indeed the Strasbourg jurisprudence, that the burden
10 is exceptionally high on the Prosecution to establish due diligence in
11 order to reopen its case at this stage, at the closure of the Defence
12 cases for both accused, and that the focus should be at this point on the
13 rights of the accused and considerations about the time that might be
14 expended if the case was to be re-opened at this point. In our view,
15 even though some steps were taken in September 2002 to get relevant
16 documents, the most important subsequent steps were not taken. And
17 therefore, the Prosecution has failed again to meet the burden on it to
18 establish due diligence for its application. And our position remains,
19 therefore, that its application should be rejected for these documents
20 and all the others for the reasons we've set out already in our response.
21 Thank you, Your Honours.
22 JUDGE ANTONETTI: [Interpretation] Very well. We have another 15
23 minutes before the break.
24 If Mr. Mundis would like to take the floor again, I will give the
25 floor to him, since the party submitting a motion always has the last
1 word. Is there anything you would like to say in response to the
2 submissions made by the parties? And we will then have the break. Mr.
3 Mundis, I give you the floor.
4 MR. MUNDIS: Thank you, Mr. President. Just two very brief
5 comments. The first one related to a comment made by my learned
6 colleague, Mr. Bourgon, and the beginning of his remarks relating to
7 Annexes 2, 3, and 7 to our application to re-open. Again, Your Honours
8 will know that we attached a cover sheet to each proposed exhibit,
9 indicating where the documents came from and documents 2, 3, and 7 did
10 not come from the CDs in question, but rather from other sources.
11 With respect to the 2004, the October 2004 CD, the Prosecution
12 did in fact raise problems concerning the electronic format of that
13 material, and we have explained we had similar problems with respect to
14 making that material available in a format and we made that material
15 electronically available to the Defence in the EDS as soon as we were
16 able to convert those files into files that were compatible with our
17 system. And that explains the delay in making that material available to
18 the Defence.
19 At this point in time, Mr. President, the Prosecution has nothing
20 further to add with respect to our application to re-open. Thank you.
21 JUDGE ANTONETTI: [Interpretation] Very well. We have dealt with
22 that issue. Now it is quarter to 11.00. We will resume at quarter past
23 11.00 and we will rule on the 92 bis statements and provide you with
24 other information on the decisions that should be rendered in the near
25 future. We will resume at quarter past 11.00.
1 --- Recess taken at 10.46 a.m.
2 --- On resuming at 11.14 a.m.
3 JUDGE ANTONETTI: [Interpretation] We will now resume, and the
4 Trial Chamber will now render its decision concerning the two 92 bis
5 statements made by Mr. Naim Horo and Mr. Halil Brzina. The Trial Chamber
6 hereby admits these two documents into evidence and I would like to ask
7 the registrar to provide us with the numbers.
8 THE REGISTRAR: [In English] The first document is the
9 declaration of Mr. Horo Naim, H-o-r-o, comprised of three documents --
10 comprised of declaration, the actual statement in B/C/S, a copy in
11 English, and an attestation. This document will be admitted evidence
12 under the reference DK61.
13 Second declaration is declaration made by Mr. Brzina Halil, for
14 the record, B-r-z-i-n-a, this document is admitted into evidence under
15 the reference DK62, and is comprised of a declaration, a statement in
16 English and in B/C/S, together with an annex called Annex A and an
17 attestation. Thank you, Mr. President.
18 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar. In
19 addition, we have decided that DK11 and DK12 marked for identification
20 will be withdrawn. It appears that there is DK9 as well. Could you
21 check that, Mr. Registrar. Was there DK9 marked for identification?
22 THE REGISTRAR: DK10 and DK11 were initially marked for
23 identification, but the Defence I understand requested it to be admitted
24 into evidence which is hereby done. Pursuant to the request of the
25 request of General Kubura, only DK9 was marked for identification.
1 Pursuant to its request and your decision this DK9 is hereby withdrawn
2 from the list of evidence, as it was only marked for identification.
3 Thank you, Mr. President.
4 JUDGE ANTONETTI: [Interpretation] Very well. So Mr. Kubura's
5 Defence team is withdrawing this document, DK9 marked for identification.
6 And we then had DK10 and DK11. Mr. Registrar, could you correct that.
7 THE REGISTRAR: Sorry, DK11 and DK12 are hereby --
8 JUDGE ANTONETTI: [Interpretation] Which were marked for
9 identification, DK11 and DK12. These documents are now admitted into
11 THE REGISTRAR: Yes, DK11 and DK12 are now tendered into evidence
12 and were initially marked for identification. And only DK9 is withdrawn
13 from the list of exhibits. Thank you for allowing me that clarification.
14 JUDGE ANTONETTI: [Interpretation] Very well. Thank you.
15 Before the break, just before the break, with regard to the
16 Prosecution's motion to re-open its case we said that the debate had been
17 concluded, but the Chamber would like some additional information from
18 Mr. Mundis.
19 Mr. Mundis, could you clarify a certain matter. Could you tell
20 the Chamber in October 2002 who was in charge of the Hadzihasanovic
21 investigation in the OTP? Who was in charge of the Halilovic
22 investigation? And who was in charge of the Delic investigation? And
23 Team 9, together with Mr. Hackshaw, was this the team that coordinated
24 all the investigations carried out in the field in relation to these
25 documents? This is something that we would like to be informed of,
2 MR. MUNDIS: Let me do my best, Mr. President, to answer that
3 question. I, as you're aware, was not a member of Team 9 until the end
4 of September 2003. But let me say this: In October 2002 Mr. Withopf was
5 the trial attorney who was responsible for the Hadzihasanovic case. And
6 in fact Mr. Withopf had been the trial attorney responsible for the
7 Hadzihasanovic and Kubura case from the beginning, that is when the
8 investigation was first opened.
9 With respect to Halilovic case, the trial attorney who was
10 responsible for the Halilovic investigation was Mr. Karl Koenig,
11 K-o-e-n-i-g. Mr. Koenig is no longer with the Office of the Prosecutor
12 and I believe left the Office of the Prosecutor at some point in 2002, I
13 believe in the middle of 2002.
14 Team 9, until some point again in the middle of 2002, the team
15 leader was Nikolai Mikhailov. Mr. Mikhailov also left the Tribunal at
16 around the same time as Mr. Koenig and it was at that point in time that
17 Mr. Hackshaw became the acting team leader, which in effect put him in
18 the investigative arm responsible for the Hadzihasanovic and Kubura team
19 of investigators, the Halilovic team of investigators, the Oric team of
20 investigators, and the Tusk 2, i.e., the Delic team of investigators.
21 I will also inform the Trial Chamber that at some point in time
22 in 2000, late 2000 or early 2001 there were some structural changes made
23 within the Office of the Prosecutor whereby at that point in time, I
24 believe it was late 2000/early 2001, the trial attorneys assigned to the
25 investigation teams, the trial attorneys, were given significantly more
1 responsibility for directing the overall investigations. Prior to that
2 point in time, the investigators, the team leaders, had significantly
3 more responsibilities with respect to the investigations than the
4 lawyers, and the lawyers were actually at that point in time referred to
5 as team legal officers, and their role was primarily an advisory one.
6 They would be advising the team leader and the investigators.
7 In late 2000/early 2001, the trial attorneys -- the term "team
8 legal officer" was changed to "trial attorneys," and the trial attorneys
9 assigned to each case assumed much more responsibility for overseeing the
10 investigation. At the same time, as Mr. Hackshaw has testified, he took
11 direction from Mr. Withopf certainly by early 2001 and throughout 2002,
12 but I think it's also important for the Trial Chamber to understand that
13 notwithstanding the fact that the trial attorney was responsible for the
14 conduct of the investigation in the pre-trial phase of the case, the
15 investigators continued to report through an investigative chain of
16 command. That is, Mr. Hackshaw as the acting team leader reported to the
17 deputy chief of investigations, Mr. Bob Reid, who in turn reported to the
18 chief of investigations, Mr. Patrick Lopez-Terres. So that the
19 investigators, although they are taking instructions from the lawyers,
20 their formal evaluations, their -- these kinds of matters, they were
21 reporting up the investigative division chain of command, so that they in
22 effect had a dual chain of command, if you will.
23 At the time, Mr. Koenig, who was in effect the Team 9 -- he was
24 the more senior trial attorney, if you will. He wasn't, to use our term,
25 a senior trial attorney, but of Mr. Koenig and Mr. Withopf, Mr. Koenig
1 was the one who had more seniority. When Mr. Koenig left in mid-2002 and
2 Mr. Mikhailov left soon after, Mr. Withopf and Mr. Hackshaw assumed
3 responsibility for all of the Team 9 cases and there were I believe two
4 other trial attorneys that were also working on the various cases and
5 maybe one more junior associate legal officer. But Mr. Withopf and Mr.
6 Hackshaw from the middle of 2002 were responsible for the Hadzihasanovic
7 and Kubura case, the Oric case, the Halilovic case, and the Delic
9 And I hope that has shed a little bit of light on Team 9.
10 JUDGE ANTONETTI: [Interpretation] Yes. It's not easy to
11 understand how the Prosecution functions. Just obtained some more
12 information. It seems that according to what you have said, initially
13 the chief of investigations were in charge of the matter and the trial
14 attorneys, members of the Prosecution of the trial did not play a
15 significant role; this has now changed and now the trial attorneys have
16 more control over the investigations. Is that quite correct?
17 MR. MUNDIS: That is in -- precisely the point. In the early
18 years of the Tribunal, it was -- which made a little bit of sense, if you
19 think about the early years of the Tribunal where there weren't a lot of
20 cases but there were a lot of investigations and a lot of accused who had
21 been indicted but not in custody. It made a little bit of sense in the
22 early years for the investigations division comprised of professional
23 investigators to have -- to have significantly more responsibility. That
24 process began evolving in 1999/2000, so that by I believe the end of 2000
25 or the beginning of 2001, the situation, in effect, reversed itself and
1 the lawyers became significantly more responsible for overseeing the end
2 of the investigative work and the pretrial workup of the cases. The way
3 the office was initially structured was that each of the teams had,
4 depending on the size of the team, a number of investigators and a much
5 smaller number of lawyers, and there would usually be one lawyer assigned
6 to each case and each investigation and a number of investigators working
7 on that same investigation. And again, they were initially called team
8 legal advisors, and then it was later that their title actually changed
9 and they had much more responsibility for overseeing the investigations
10 rather than simply being an advisor to the investigators or the team
11 leader of that team.
12 And the situation now is such that senior trial attorneys are
13 responsible for each case and all of the personnel who work on that case,
14 although to this day the investigators continue to be evaluated by the
15 investigations division, although there is of course input from the
16 senior trial attorney responsible for each case. But it is certainly not
17 the case that the investigators work -- well, they do work under the
18 direction of the lawyers, but they have a -- their evaluations and other
19 administrative matters are fully within the cognizance of the
20 investigations division of the Office of the Prosecutor.
21 JUDGE ANTONETTI: [Interpretation] Thank you for that information;
22 that should help us when it comes to rendering our decision, as we will
23 have all the necessary information.
24 Before we adjourn, as I said a minute ago, we will be rendering
25 our written decision on the Defence's motion to re-open its case. We
1 will be rendering this decision in the near future in the course of the
2 week. We will also be rendering a decision so that the registrar can
3 assign numbers to DH documents. And since we have not yet ruled on this
4 matter, there are certain documents that are missing. We have checked
5 this. Certain things are still being checked, but we will be rendering a
6 written decision on these documents.
7 As far as these documents are concerned and list number 6 from
8 General Hadzihasanovic's Defence team, are there any objections that the
9 Prosecution would like to make to these documents? Mr. Mundis?
10 MR. MUNDIS: Thank you, Mr. President. With respect to the final
11 exhibit list as filed on 10 May 2005, the Prosecution has no objection to
12 any of the documents being admitted into evidence. We do, however, state
13 simply for the record with respect to paragraph 7 of the cover motion
14 that was filed with the exhibit list, that we will reserve our position
15 with respect to paragraph 7. We do not take a stand with respect to what
16 is stated in paragraph 7, and it -- to refresh the Chamber's memory, this
17 paragraph states that the Defence submits that its motion to have the 780
18 documents admitted is very different from the procedure used for
19 Prosecution exhibits which were admitted in evidence without being used
20 with any witness. And this of course is the same issue that both Mr.
21 Dixon and Mr. Bourgon have raised earlier this morning. We don't believe
22 that the Chamber needs to render any kind of ruling with respect to those
23 submissions in order to admit the documents into evidence, but we would
24 reserve our position in terms of how the documents should be used, what
25 weight they should be attributed, et cetera, to a later point in time.
1 JUDGE ANTONETTI: [Interpretation] Very well. So you do not
2 object to any of the documents, however with regard to paragraph 7 you
3 have certain reservations. We have taken note of the fact. As I have
4 said, we will be rendering a written decision on the motion to re-open
5 the Prosecution's case. There will be a written decision on the
6 documents and once these decisions have been rendered there will be no
7 other outstanding decisions to render. I believe that next week -- but
8 first I would like us to go into private session.
9 [Private session]
19 [Open session]
20 THE REGISTRAR: [Interpretation] We are in open session, Mr.
22 JUDGE ANTONETTI: [Interpretation] Very well. And now that we are
23 back in open session - subject to what I have already said in private
24 session but we won't go back into private session - I'd like to point out
25 to the parties that the case has now been closed. We will now proceed
1 pursuant to Rule 86 of the rules, which means that there will be closing
2 arguments. But as Article 86 says, you have five days before presenting
3 a closing argument to file a final trial brief. So I invite you to make
4 -- to file these trial briefs very rapidly because the Legal Officer has
5 already provided you with a provisional schedule concerning the hearings
6 that we intend to have in July, that is the closing argument, the
7 Prosecution, closing arguments for Defence; one day for one team, another
8 day for the other team. And then I will officially state that the case
9 has been closed.
10 So everyone is now focussed on the dates for these submissions
11 that should be made in July. I don't have the dates that were referred
12 to at hand. I don't have the document before me, but I believe that it
13 was supposed to be in the second week of July. That is what was said at
14 the meeting that we had.
15 I have now found them. We intended to have the argument -- the
16 closing argument on the 14th of July and the Hadzihasanovic closing
17 argument on the 15th, and the Kubura closing argument on the 16th. This
18 could be done a week earlier, though. That would then bring us to the
19 7th of July for the closing argument. And the 4th of July for the final
20 trial brief. The 4th of July for the final trial brief, and the closing
21 argument on the 7th of July, three days later. That is why yesterday --
22 [Trial Chamber and legal officer confer]
23 JUDGE ANTONETTI: [Interpretation] That is why yesterday in order
24 to save time I said that your briefs should be in English so that the
25 Prosecution can respond if they so wish. So if the deadline for the
1 brief is the 4th of July, the holiday -- the 14th of July is a different
2 holiday -- so on the 4th of July, the final trial brief. We need at
3 least one week so that everyone can prepare, which means that the closing
4 argument could then be presented on Monday. Since Thursday is the 14th,
5 then it would be on Monday, the 11th of July. Monday, the 11th of July
6 for the closing arguments.
7 A few days would be necessary to allow the Defence to prepare its
8 arguments, and then we could have the Hadzihasanovic closing arguments on
9 the 14th of July and the Kubura closing arguments on the 15th of July or
10 on Monday, the 18th of July.
11 Well, we'll provide you with more precise information at a
12 subsequent date, but what we have agreed on is that the final trial
13 briefs should be filed on the 4th of July. So you have a number of weeks
14 before you.
15 We will now go back private session.
16 [Private session]
25 [Open session]
1 THE REGISTRAR: [Interpretation] We are in open session, Mr.
3 JUDGE ANTONETTI: [Interpretation] Very well.
4 As we still have some time left, are there any other issues that
5 any of the parties would like to raise? I would be happy to give you the
7 Is there anything that the Prosecution would like to say?
8 MR. MUNDIS: Thank you, Mr. President. Only with respect to the
9 scheduling of the closing arguments. The Prosecution's not aware of any
10 case, although there clearly may be some out there, whereby the Defence
11 was given a number of days following the Prosecution's closing arguments,
12 in other words that -- to my knowledge the closing arguments have always
13 been held on consecutive days, and we would respectfully request that
14 that be done in this case for the simple reason that our closing
15 arguments will of course be based on the closing brief. And our
16 submission would be that that's why the rules specifically allows a
17 period of time to elapse between the filing of the briefs and the oral
18 arguments so that the parties will be familiar with the arguments in
19 great detail that the other side has advanced. And we would respectfully
20 request that that issue be given some consideration prior to announcing
21 the final dates of the schedule with respect to the oral arguments.
22 The Chamber is certainly aware from the 65 ter conference that
23 was held, where the parties addressed a number of issues concerning both
24 the closing briefs and the oral arguments, and of course these matters
25 are entirely in the discretion of the Trial Chamber, but the parties
1 among themselves had reached certain agreements with respect to how we
2 proceed. And perhaps if we could just briefly remind the Trial Chamber.
3 For starters, the practice directive, the number of which escapes me,
4 indicates that closing briefs shall be no more than 200 pages unless a
5 party seeks a longer -- seeks to file a longer closing brief. The
6 parties in this case, Your Honour, have all agreed that none of us would
7 seek more than 200 pages for our closing briefs.
8 Moreover, in some cases parties have sought leave to file a
9 response brief. Again, in this case the parties have agreed that none of
10 us will seek to file response briefs.
11 In other words, we will file -- each team will file one closing
12 trial brief; it will be no longer than 200 pages and no one will seek
13 leave to file a response brief.
14 We had also in terms of scheduling for the closing arguments, the
15 Prosecution indicated that we believed we would actually need about six
16 hours of court time for our closing arguments. The Hadzihasanovic
17 Defence team also thought they would need about six hours for their
18 closing arguments, and the Kubura trial team thought that they would need
19 about four hours for their closing arguments. And in light of the fact
20 that that would take about four trial days, we then anticipated that
21 perhaps the Chamber might have some final questions to be put to the
22 parties, and that would in effect take us to the fifth day of that week,
23 allowing us to start on Monday, the 11th, and to be finished no later
24 than Friday, the 15th of July.
25 We had also agreed amongst ourselves - and of course all of these
1 agreements are subject to the Trial Chamber's final scheduling order with
2 respect to these matters - but we had also agreed to that the Prosecution
3 would go first in its closing arguments, followed by the Hadzihasanovic
4 Defence, followed by the Kubura Defence, and none of the parties would
5 seek any kind of leave to respond to the oral arguments of the other
6 parties. In other words, each of us would get one opportunity to address
7 the Trial Chamber, subject of course to any final questions or issues the
8 Chamber would like us to discuss on what in effect could be the fifth day
9 of the closing arguments.
10 I believe I have summarised what the parties have both agreed to
11 and discussed at the 65 ter conference. I'm sure if I have misstated
12 anything, my colleagues from the other side of the courtroom will correct
13 me. Those are the rough parameters the parties had both agreed on and
14 put forward at the 65 ter conferences, as I'm sure Your Honours will
15 recall from reading the transcripts.
16 JUDGE ANTONETTI: [Interpretation] Very well. The three major
17 points that I have noted, firstly you said that given you will need six
18 hours and General Hadzihasanovic's Defence will need six hours,
19 Brigadier's Kubura's Defence will need four hours, it's necessary to
20 commence on Monday, the 14th, and continue on Tuesday, Wednesday,
21 Thursday, and Friday, the 15th. And therefore the Defence should not
22 need any time after your intervention. That's the first issue you have
24 Second issue is that the trial briefs, final trial briefs, in
25 accordance with the practice directive, should not exceed 200 pages
1 unless leave has been granted to exceed that number of pages. That was
2 the second point that you raised.
3 And the third point, that is a new point for you, we said that it
4 might be possible for the Chamber to put questions to the parties.
5 According to the civil-law procedure, after the closing arguments the
6 Judges do not intervene. They don't ask any questions. But we take note
7 of what you've just said. As far as with regard to what the Prosecution
8 has just said, I would also like to know what the position of the Defence
10 Mr. Bourgon.
11 MR. BOURGON: [Interpretation] Thank you, Mr. President. General
12 Hadzihasanovic's Defence counsel can confirm what my colleague has just
13 said, that is that our final brief will not exceed 200 pages. We agree
14 that there should not be a written response from either of the parties,
15 and there should not be a response in the course of the closing
16 arguments. And we agree that we should work from Monday to Friday. We
17 should have six hours, a second six-hour session, and then four hours for
18 the second accused.
19 However, there are two points I would like to go back to, Mr.
20 President. The date of the 4th of July, if we changed this date we would
21 like to be informed of the fact as soon as possible because we are
22 planning the drafting of our brief on the basis of this date.
23 As far as the language that we will use in our trial brief is
24 concerned, we have already to draft our brief in English. However, Mr.
25 President, I must say that my colleague and I work in French. We are
1 doing this voluntarily, but this is not something that we usually do. We
2 would have preferred to draft this in French. For this reason, Mr.
3 President, we would like to have the leave to file a brief annex in
4 French, which will contain the essential elements in the trial brief. We
5 would like to file this as an annex. And if we can be of any assistance
6 to the Legal Officer with regard to the documents, if there are any
7 problems, we believe that everything is fine. But if there are any
8 issues that are outstanding, we are quite prepared to assist -- to
9 provide assistance. Thank you, Mr. President.
10 JUDGE ANTONETTI: [Interpretation] Very much.
11 I see that as far as you are concerned and the Prosecution, you
12 have agreed on all the points. However, you have said that you would
13 like to add an annex in French which would summarise the 200 pages in
14 English. I personally don't see why that should present a problem.
15 Is there anything that the other Defence team would like to say?
16 MR. DIXON: No, Your Honours. We have agreed entirely with what
17 Mr. Mundis has outlined and it's for Your Honours to rule on what should
18 be the appropriate procedure, but that is the proposal that comes as a
19 joint proposal from the Prosecution and Defence. And as Your Honour has
20 indicated, before the time or closer to the time Your Honours will set
21 out what the exact schedule should be. Thank you, Your Honours.
22 JUDGE ANTONETTI: [Interpretation] Very well. When proposals are
23 reasonable, the Judges can ascribe to them.
24 Mr. Mundis.
25 MR. MUNDIS: Thank you, Mr. President. We certainly would have
1 no objection to the Hadzihasanovic Defence team attaching an annex in
2 French. Our only concern previously had been that if they were to file
3 the closing brief entirely in French, that we might simply need a little
4 bit of extra time in order to get that translated into English. The only
5 other possibility would be, obviously, to move the closing arguments a
6 week back to the week of the 18th. But of course that's entirely up to
7 the Trial Chamber. If it were to be filed on the 4th in French and we
8 were to argue the week of the 18th, I don't anticipate that would cause
9 us any problems, but that's entirely up to the Trial Chamber. But we
10 have no objection to them filing an annex in French.
11 With respect to what I said previously that Your Honour commented
12 about, it is -- I simply raise the issue of questions from the Bench
13 because there have been some cases where Trial Chambers have specifically
14 asked the parties to address a particular issue or issue based either on
15 the written briefs, perhaps something wasn't clear, or in terms of the
16 oral arguments, whereby the Judges perhaps had some questions for the
17 parties to elaborate upon a position taken in the oral arguments.
18 There's certainly -- as Your Honour pointed out, there's no requirement
19 for that and if the Chamber feels that that would be inappropriate, then
20 certainly it's up to you to factor that in in terms of planning the final
22 JUDGE ANTONETTI: [Interpretation] Very well. It would only be in
23 case there were certain things which were not clear enough in your final
24 briefs. And in that case, the Judges would have to have the opportunity
25 to ask you to specify. So for the time being, we are planning to do that
1 on the 14th of July, that is to say in the week between the 11th and the
2 15th of July for the closing arguments.
3 Would you like to deal with anything else at this stage? Mr.
5 MR. MUNDIS: Nothing further at this time. Thank you, Mr.
7 JUDGE ANTONETTI: [Interpretation] The Defence?
8 MS. RESIDOVIC: [Interpretation] No. Thank you very much, Mr.
9 President. We have no additional questions.
10 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President.
11 Nothing new to add here either.
12 JUDGE ANTONETTI: [Interpretation] Very well. Thank you very
13 much. So we have come to the end of today's session, and you will be
14 informed about when future sessions will take place by a scheduling
16 --- Whereupon the hearing adjourned at 11.52 a.m.