1 Wednesday, 7 November 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.25 a.m.

5 [Albanian on English Channel]

6 JUDGE ORIE: Mr. Registrar, would you please call the case ...

7 [Albanian on English Channel.

8 THE REGISTRAR: ... [Albanian on English Channel]

9 JUDGE ORIE: There seems to be a problem with the translation on

10 channel 4. On channel 4, I would expect English.

11 Yes, I think it's now fixed.

12 First of all, there are two Judges. Judge Stole is not at this

13 moment in The Hague. He was expected to come back early this morning, but

14 due to medical conditions, Judge Stole is not available.

15 The two remaining Judges have decided that it's in the interests

16 of justice to continue hearing the case under Rule 15 bis.

17 Then, perhaps, a brief explanation as far as the late start is

18 concerned. More and more the Chamber needs the early morning minutes in

19 order to digest the material that has come in at night.

20 I'm, as a matter of fact, preparing a device on my computer, which

21 wakes me up if something arrives in the middle of the night, so that we

22 don't waste time in the morning.

23 Courtesy copies, official filings, everything comes in; and,

24 sometimes, we take and need time to further think about how to proceed.

25 That certainly caused most of the delay of this morning.

1 I do understand that the parties have suggestions as how to

2 proceed today. I was informed that Mr. Emmerson would like to address the

3 Chamber.

4 MR. EMMERSON: When the issue of the evidence that is proposed for

5 today was raised yesterday afternoon, I indicated that there were two

6 separate questions really running in parallel.

7 The first is clarification of precisely which documentation the

8 Prosecution proposes to adduce this evidence for; in other words, which

9 additional documents, if any, over and above those that have already been

10 admitted or tendered the chain of custody witnesses are intended to

11 produce.

12 The second is the mechanism for establishing chain of custody,

13 given that we received last night a declaration dealing with handling and

14 chain of custody within the OTP. There is this witness who deals with one

15 stage of the documentation. There is a further witness who deals with

16 another stage of the documentation.

17 JUDGE ORIE: Yes.

18 MR. EMMERSON: There's just a potential fracture between the two.

19 Now, in the motion that was served last night at page --

20 JUDGE ORIE: By the way, has that been filed meanwhile? Because

21 I -- part of the material to digest was a courtesy copy received yesterday

22 at 7.00.

23 Has that been filed?

24 MR. RE: It was a -- a courtesy copy of the electronic filing.

25 When we filed it, we also sent a direct copy to the Trial Chamber and to

1 the Defence.

2 JUDGE ORIE: Yes. No, but it has been -- I don't know exactly how

3 this works, Mr. Registrar, if something is electronically filed, I don't

4 know at what time it was filed, whether it's then on that date, and when

5 is filing complete in that respect?

6 [Trial Chamber and registrar confer]

7 JUDGE ORIE: Yes. The registry informed me that the filing is

8 complete as soon as it's electronically received, although distribution

9 may take place the next day if the material arrived after 4.00 p.m.

10 Please proceed.

11 MR. EMMERSON: So, if Your Honours have pages 88 to 91 of the

12 filing, which I'm not certain that the pagination necessarily corresponds

13 electronically, but --

14 JUDGE ORIE: Is that --

15 MR. EMMERSON: -- there should be a schedule that looks like this.

16 JUDGE ORIE: Yes, that's in front of me. That's part of our

17 digestive work this morning. Yes.

18 MR. EMMERSON: Now, as we've understood the Prosecution position,

19 the documents that would be tendered through the evidence of chain of

20 custody witnesses fall into three categories: The first is documents

21 that have already either been admitted or marked for identification, many

22 of them through the testimony of Bislim Zyrapi, and that covers the list

23 of documents on page 1 and 2.

24 Then there is a category of three single sheets or very short

25 documents --

1 JUDGE ORIE: Yes, I see it.

2 MR. EMMERSON: -- which are documents said by the Prosecution to

3 be on the Rule 65 ter list but not yet tendered by the Prosecution. So

4 they haven't been put through Zyrapi or any other witness, but Prosecution

5 wishes to adduce those three documents.

6 Then there is a third category of three documents that are not on

7 the Rule 65 ter list, but where it is said that they have the same content

8 as documents which are. I haven't had an opportunity overnight to

9 ascertain whether the same content means that they are merely duplicative,

10 in the sense that they are identical documents or whether it is that they

11 are of broadly similar effect.

12 Now, Your Honours will have seen from the material filed with the

13 declaration that the pool of material, from which the collection of

14 exhibits have been tendered or are sought to be tendered is drawn, is some

15 24 Lever Arch files of material, running to thousands of pages.

16 Now, the clarity that I have been seeking for some time, as

17 contingent upon whether or not these witnesses are required to give

18 evidence, has been what exactly it is from amongst that material that is

19 intended to form part of the Prosecution's case, and our understanding is

20 it is these documents in this schedule and no more.

21 If that is a correct understanding, which means that there are

22 essentially six further documents over and above those that have already

23 been either tendered or admitted, then --

24 JUDGE ORIE: Of which three apparently are for similar. Okay.

25 Let's carry on.

1 MR. EMMERSON: And three are on and three are off the existing 65

2 ter list, then that answers one part of the question and is extremely

3 helpful and we all know where we stand.

4 JUDGE ORIE: Okay. Could we seek confirmation from Mr. Re that,

5 as far as the chain of custody witnesses are concerned, that these are the

6 documents which you seek from -- for which you seek to establish that the

7 chain of custody was as the witnesses testify, or is there anything else,

8 like what was in the suitcases that were traveling apparently, as we might

9 hear from the witness, were coming from Kosovo to Novi Sad and to

10 Belgrade?

11 That's what I read in the --

12 MR. RE: Well --

13 JUDGE ORIE: -- in the statement, which, of course, still needs

14 to be confirmed by the witness.

15 Is it -- my question is clear, I take it?

16 MR. RE: Your question is -- is very clear, and I agree the

17 documents had a very interesting journey.

18 JUDGE ORIE: Well, that's --

19 MR. RE: Like --

20 JUDGE ORIE: No, but that was not the core of the problem. That

21 was just my --

22 MR. RE: I'm just looking in the decision of the - I'm sorry, it's

23 just on the computer screen - of the 15th of October in relation to

24 Mr. Zyrapi. There were two documents the Trial Chamber specifically asked

25 us for information on the chain of custody. Those two documents we've

1 referred to in the filing of yesterday.

2 JUDGE ORIE: Are they on this list?

3 MR. RE: That's P130 and P234.

4 JUDGE ORIE: P130, P ...?

5 MR. RE: And P234.

6 JUDGE ORIE: Okay. They were on the list. Okay.

7 MR. RE: Yes. They're in this list, and that's -- the purpose of

8 this is to inform the Trial Chamber of the chain of custody --

9 JUDGE ORIE: Yes. But question was a different one. It is

10 whether you limit yourself to these documents or whether through these

11 witnesses you want to -- to seek an avenue to get anything more into

12 evidence or to establish chain of custody on something which is not yet in

13 evidence which is not on this list. That's the question.

14 MR. RE: I don't know of anything else, apart from that list which

15 we are --

16 JUDGE ORIE: Okay. So, then, I may interpret the answer as being

17 no, it's limited to these documents?

18 MR. RE: I think so. I'm 99 per cent sure that that's the purpose

19 of it. I've --

20 JUDGE ORIE: Well --

21 MR. RE: I don't want to say 100 per cent, but I'm 99 per cent

22 sure that that is the entirety of it.

23 Mr. Emmerson earlier expressed concern about us trying to get 24

24 binders in, and that's simply not the case. It's to establish where the

25 documents which are on the exhibit list came from.

1 JUDGE ORIE: Yes, I do understand, but the 1 per cent certainly

2 will make Mr. Emmerson, to the extent he's capable of becoming nervous, he

3 would be nervous about 1 per cent.

4 MR. EMMERSON: I don't think "nervous" is the right word, but I

5 would be concerned because that would involve the Defence and the Trial

6 Chamber in taking time out now to go through each and every document and

7 establish whether or not that material was material which is already on

8 the 65 ter list or the Prosecution would need to make an application.

9 So I -- I've sought clarification. Mr. Re has given clarification

10 to me this morning that the only documents that the Prosecution seeks to

11 tender through the chain of custody evidence are either documents that

12 have already been marked for identification or tendered, as set out in the

13 first column of the schedule.

14 JUDGE ORIE: Yes. As a matter of fact, they are not tendered,

15 because most of them are already exhibits.

16 MR. EMMERSON: I think --

17 JUDGE ORIE: So they're in evidence, but we now receive additional

18 information as to --

19 MR. EMMERSON: As to where they came from, yes.

20 JUDGE ORIE: -- where they came from, and that certainly answers

21 questions in relation to P130 and P234. To that extent, it's good to

22 receive that information.

23 Then we have three documents still to be tendered which are on the

24 65 ter list, and then there are three remaining documents which are not on

25 the 65 ter list, but where we have to --

1 MR. EMMERSON: Consider, yes.

2 JUDGE ORIE: -- to consider whether they are actually the same or

3 almost the same documents as we find on the 65 ter list. If they are, it

4 might be easy -- more easy to allow them to be added.

5 MR. EMMERSON: Yes. May I say --

6 JUDGE ORIE: Yes.

7 MR. EMMERSON: -- on the clear understanding that Mr. Re's 99 per

8 cent is, in fact, the correct position, we would have no objection to the

9 six documents that appear on page 3 forming part of the material before

10 the Trial Chamber. So that is both those which are on the 65 ter list but

11 not yet tendered formally through any witness or -- and the three

12 documents that it is sought to adduce that have not been included within

13 the 65 ter list.

14 Having said that, the question then arises as to what is the most

15 efficient way of adducing that evidence of chain of custody, whether it is

16 most efficiently done by calling this witness, who deals with the

17 possession of a briefcase between, as Your Honour postulates, Novi Sad and

18 Belgrade and --

19 JUDGE ORIE: Yeah.

20 MR. EMMERSON: -- then leaves it in his house and then it goes

21 back to the office, but doesn't deal with the seizure of the documents.

22 Then call another witness later on to talk about the seizure to have

23 documents, who can't deal with what happens between their seizure and

24 their handing over to this witness, and then put that together with a

25 series of -- of declarations dealing with what happens within the OTP.

1 I mean, I'm in the Trial Chamber's hands, but it does seem to be,

2 with respect, that that's a rather cumbersome way of dealing with it. The

3 simplest way of dealing with it would be for the parties to take time out

4 of court to produce a stipulation which goes through for the documents

5 that are set out in the schedule that appears on pages 88 to 91, a

6 stipulation as to chain of custody, so that -- that we don't need to take

7 time with either this witness or, indeed, calling another witness who

8 deals with another part but not the whole of the chain of custody sometime

9 later in the week or next week.

10 Now, obviously, if it's thought preferable to hear witnesses --

11 JUDGE ORIE: Yes.

12 MR. EMMERSON: -- then --

13 JUDGE ORIE: Well, of course, for these witnesses, they have given

14 statements, of course, for the witness who's now waiting, Mr. Ralic is

15 waiting to testify, I've some hesitation to send him now back and say the

16 parties start now negotiating on certain matters which --

17 MR. EMMERSON: Yes.

18 JUDGE ORIE: -- might be easily resolved. But I can imagine that

19 talking about the witness who's waiting now that we get his evidence

20 admitted under Rule -- I don't know whether there's any problem with the

21 statement.

22 MR. EMMERSON: There -- there would be a problem with the

23 statement in its current form, so we would need to deal with it. It's not

24 been served on the -- on the Defence either under 92 bis or 92 ter, and so

25 --

1 JUDGE ORIE: No. At the same time, could that be resolved by

2 redacting the statement? Is it --

3 MR. EMMERSON: Well --

4 JUDGE ORIE: -- a huge portion or is it a smaller portion?

5 MR. EMMERSON: May I say that one of the reasons why I've been

6 trying to deal with this in the way that I have is because I'm conscious

7 of the fact that the simplest way of dealing with this is to take what he

8 has to say and what the others have to say and then produce a simple

9 stipulation that takes the material through.

10 We aren't raising history about this matter. We had notified the

11 Prosecution last week that subject to the clarification of exhibits to be

12 introduced, it wouldn't be necessary for -- we thought it would be

13 unlikely for these witnesses to travel and suggested that their travel

14 arrangements might be put off.

15 JUDGE ORIE: Yes.

16 MR. EMMERSON: And I'm simply concerned that we find ourselves in

17 a position where a motion comes through overnight which for the first time

18 clarifies what the material is, which is the first and the most important

19 question, and then we're in court the next morning with the witness here

20 without the opportunity to --

21 JUDGE ORIE: Yes.

22 MR. EMMERSON: -- to resolve issues concerning the 92 ter

23 statement.

24 I'm --

25 JUDGE ORIE: At the same time, of course, the Chamber is concerned

1 about sending the parties out and take the whole of the morning to

2 negotiate, and then to hear as a result that no agreement was reached. I

3 mean, then we would prefer to hear the evidence, rather than ...

4 But what we could do, first of all, Mr. Re, I'd like to hear what

5 your response would be to the suggestion made by Mr. Emmerson.

6 MR. RE: I'm in the Trial Chamber's hands here, as I entirely

7 appreciate and take the Trial Chamber's point, Your Honour's point, that

8 the witness is here.

9 I can't see any -- any dispute in his statement, his 92 ter --

10 what would be a 92 ter statement.

11 JUDGE ORIE: Yes. Nevertheless, there seems to be a problem. I

12 mean, that's what Mr. Emmerson tells me, and that's what, if we ask the

13 witness in, what we'll find, because I take it that Mr. Emmerson is not

14 telling us that there is a problem if there's no problem.

15 MR. EMMERSON: No. I mean, there's no mystery to it. He -- he

16 deals with what, in fact, happened so far as the suitcase was concerned

17 and his involvement with it, but he also purports to describe the contents

18 of material which is not adduced by the Prosecution by describing a

19 process of analysis within the RDB of the material that was there.

20 And, so, since we've now got clarity as to what it is the

21 Prosecution is proposing to rely upon, I don't want to have a situation

22 where there is evidence in through the 92 ter statement, if that's what it

23 was --

24 JUDGE ORIE: Mr. Re --

25 MR. EMMERSON: -- which goes beyond that.

1 JUDGE ORIE: Mr. Re, in the statement we find some description,

2 which, of course, I have not tried to match with the documents we have now

3 in this annex, so I couldn't say anything about it. It's -- I would say

4 it's mainly for the Defence to -- to find out whether any of, especially

5 the six documents, would fall within the description, would fall outside

6 the description, whether we should admit this as -- as a general

7 description, or whether we should focus on the documents we find on the

8 list now.

9 You say you're in the hands of the Chamber. That's true.

10 [Trial Chamber confers]

11 MR. EMMERSON: Just before the Trial Chamber responds, as I'm

12 sitting here, it occurs to me one practical solution would be to take an

13 early break, and at that stage for the Defence to identify with the

14 Prosecution which paragraphs of the witness statement would need to be

15 redacted, and then see if it could be admitted in that way, if that is the

16 most convenient way of using the witness's presence here.

17 JUDGE ORIE: Well, I had a similar thing in mind. I just

18 discussed with Judge Hoepfel that the -- perhaps the most practical way of

19 dealing with it is to give you 40 minutes, 45 minutes, one hour, a limited

20 time, to see whether there's a basis for an agreement. If yes, we'd give

21 you more time to put that agreement on paper; if no, we'd start hearing

22 the witness, who is now waiting.

23 I think one of the things we should do at this moment is to inform

24 the witness about his present situation. But before we do so, we have a

25 few other matters as well.

1 So, therefore, the parties will have an opportunity at an early

2 break to -- to establish whether there's a basis for agreement, yes or no,

3 and then to report to the Chamber within that limited time. We'll then,

4 if the answer is positive, we'll then most likely give you more time to

5 work that out. If the answer is negative, we'll start hearing the

6 evidence to be given by the witness who's waiting at this moment.

7 MR. RE: Just a slight correction to something I said earlier on

8 this topic.

9 JUDGE ORIE: Yes.

10 MR. RE: I said there were two documents in the Zyrapi, which you

11 asked for clarification.

12 JUDGE ORIE: Yes.

13 MR. RE: There are actually three: P130, 225, and 234.

14 JUDGE ORIE: Yes, but they're all on the list. Yes, okay.

15 That's, of course.

16 I think the problem would not be the ones who are on the list.

17 Okay. Leave it to that for a moment.

18 There are two other matters. The first is, at least I understood,

19 Mr. Emmerson, that you'd like to be better informed about the further

20 scheduling of this week as far as witnesses are concerned. Is that

21 correct? That's what I understood, or let me just -- one second, please.

22 [Trial Chamber and legal officer confer]

23 MR. EMMERSON: I think it --

24 JUDGE ORIE: No. It is a concern of the Chamber, let's put it

25 this way --

1 MR. EMMERSON: Yes.

2 JUDGE ORIE: -- so that we all know how we will proceed this

3 week.

4 MR. EMMERSON: Yes.

5 JUDGE ORIE: We have a witness for today, and we now know that he

6 might or might not testify. We'll explain the situation to him in a

7 minute.

8 Then we turn into private session, because I do not know exactly

9 which witnesses might still require protective measures.

10 [Private session]

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

1

2

3

4

5

6

7

8

9

10

11 Pages 10404-10406 redacted. Private session.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 [Open session]

7 THE REGISTRAR: Your Honours, we're back in open session.

8 JUDGE ORIE: Thank you.

9 Being now in open session again, I would like to explain why we

10 were in private session. That is because we discussed scheduling of

11 witnesses where it's still uncertain whether any of these witnesses

12 would -- whether the party calling those witnesses would apply for

13 protective measures; and out of an abundance of caution, we dealt with the

14 matter in private session.

15 Now, as far as videolinks are concerned, because we have more than

16 one videolink pending, to say the least, we'll deal with that after the

17 break.

18 But before we have a break, I would first like to deliver two

19 decisions, and I'd like the witness to be called into the courtroom so

20 that we can briefly explain the present situation.

21 The first decision is on the Prosecution's motion on the proposed

22 witness Fred Abrahams. This is a decision on the Prosecution's motion of

23 November the 5th, 2007 to hear the testimony of Fred Abrahams by videolink

24 on the 12th of November, or, alternatively, to hear the witness

25 face-to-face in The Hague --

1 [French on English Channel]

2 JUDGE ORIE: -- yes. I received French translation on the English

3 Channel, but the French translation --

4 [The witness entered court]

5 JUDGE ORIE: No, no.

6 [The witness stands down]

7 JUDGE ORIE: Well, the French translation now follows us.

8 The last words I spoke were: "Or, alternatively, to hear the

9 witness face-to-face, in The Hague, on the 19th of November; that is, two

10 court days after the scheduled close of the Prosecution's case."

11 [Trial Chamber confers]

12 JUDGE ORIE: Yesterday, the Prosecution informed us that Abrahams

13 would, in fact, not be available for testimony in The Hague until the 20th

14 of November, three days after the scheduled close of the case, and the

15 very date we have set aside for any Rule 98 bis submissions.

16 The two options with which the Prosecution presents the Chamber

17 require a showing of good cause. This is because the usual grounds for

18 granting videolink testimony have not been demonstrated in the case of

19 Abrahams. Good cause also needs to be shown if the Chamber is to extend

20 the Prosecution's case three days, three court days, beyond the scheduled

21 closing date. In neither respects has the Prosecution sought in its

22 motion to demonstrate good cause.

23 In the Chamber's view, good cause might have been shown had the

24 Prosecution demonstrated that Abrahams is an exceptionally important

25 witness for the Prosecution, who could not have been scheduled at an

1 earlier stage of the case.

2 With this in mind, the Chamber has considered the content of

3 Abrahams' proposed Rule 92 ter statement, which is attached to the

4 Prosecution's motion. The Chamber has found that Abrahams' proposed

5 evidence has little or no probative value or is inadmissible on the

6 grounds of prejudice. This means that Abrahams does not fall into the

7 category of an exceptionally important witness for the Prosecution.

8 In explaining this conclusion, the Chamber does not find it

9 necessary to go through every paragraph of Abrahams' statement but will

10 refer only to a subset of paragraphs, which illustrate the problems we

11 have alluded to.

12 Paragraphs 1 through 23 of the statement are background

13 information and add nothing to the case. Paragraphs 24, 50, 53, 58, 63,

14 65, and 67 through 69 of the statement contain the witness's conclusions

15 on legal matters and on general factual matters of legal significance,

16 which the Chamber itself is tasked to decide in this case. Such opinions

17 are not appropriate evidence from a purported fact witness.

18 The Prosecution's task is to select fact witnesses who, as a rule,

19 are able to relate to the Chamber their own direct experiences of the acts

20 and circumstances alleged in the indictment, in order to enable the

21 Chamber to draw its own conclusions. Abrahams is not such a witness. The

22 Chamber has discouraged the use of so-called summarising witnesses and has

23 urged the Prosecution to minimise reliance on opinion evidence.

24 Many other paragraphs in the proposed Rule 92 ter statement - and

25 thus, many other types of evidence that we are likely to hear from

1 Abrahams, if he were to be called viva voce - are irrelevant, or often

2 completely unsourced, or the opinions of a historian or political

3 scientist, which Abrahams is not, or personal speculations of an entirely

4 unusable variety, or factual claims for which the Chamber has received

5 better evidence from other witnesses and from documents.

6 No disrespect at all is meant to the witness, who is clearly a

7 qualified and successful human rights researcher; rather, the fault lies

8 with the Prosecution for attempting to schedule such a witness at this

9 late stage in the case.

10 The Prosecution has, therefore, not shown good cause for the

11 relief it requests. For that reason, we have decided to deny the motion.

12 This concludes the Chamber's decision.

13 Then I'd like to deliver the following decision on the

14 Prosecution's motion to make testimony of Witness 56 public with

15 redactions.

16 On the 18th of July, 2007, Witness 56 testified before the Chamber

17 by means of videolink. Witness 56 gave his testimony in private session.

18 On the 31st of August, 2007, the Prosecution requested the Chamber

19 to order that the testimony of Witness 56 be made public within -- with

20 certain proposed redactions.

21 On the 10th of September, 2007, the Balaj Defence asked the

22 Chamber to deny the request, arguing that the question of the

23 admissibility of Witness 56's testimony should be resolved first, and only

24 then status of Witness 56's testimony. The Balaj Defence also submitted

25 that it is doubtful whether Witness 56's testimony could be sufficiently

1 redacted to prevent disclosure of his identity.

2 Given the nature of Witness 56's testimony, the Chamber agrees

3 with the Balaj Defence that Witness 56's testimony cannot be sufficiently

4 redacted to prevent the disclosure of his identity; therefore, the

5 Prosecution's request is denied.

6 The Chamber will allow the parties five minutes to make oral

7 submissions on the admissibility of Witness 56's evidence on Thursday, the

8 8th of November, 2007, should they wish to do so. In case the parties

9 expect to need more than five minutes, they are invited to file written

10 submissions with a maximum of five pages by the 12th of November, 2007,

11 5.00 p.m.

12 This concludes the Chamber's decision.

13 Mr. Guy-Smith.

14 MR. GUY-SMITH: Yes. If I might, with regard to that issue. We

15 need to edit the written submission that we have in that regard.

16 JUDGE ORIE: Yes. We have, of course, received already

17 submissions on your part.

18 MR. GUY-SMITH: I'm -- yes.

19 JUDGE ORIE: But it seemed --

20 MR. GUY-SMITH: With regard to the issue of the admissibility,

21 since we haven't heard anything, we have a motion in preparation, but

22 we're going to need to do some editing.

23 JUDGE ORIE: Yes.

24 MR. GUY-SMITH: So we --

25 JUDGE ORIE: Well, as a matter of fact, in your earlier

1 submission, you said that the parties should be invited to make further

2 submissions. If you have carefully listened, there was no invitation at

3 this moment.

4 MR. GUY-SMITH: Right.

5 JUDGE ORIE: But there was an opportunity given to the parties.

6 MR. GUY-SMITH: Understood.

7 JUDGE ORIE: Of course, you, the parties, are always free to file

8 motions. If you have to redact a motion you've already prepared, then

9 we'll see its final version.

10 MR. GUY-SMITH: We were just about ready to send it off, but we'll

11 hold back now.

12 JUDGE ORIE: Yes. Then I would like to explain to the witness the

13 present situation.

14 [The witness entered court]

15 JUDGE ORIE: Good morning, Mr. Ralic.

16 THE WITNESS: [Interpretation] Good morning.

17 JUDGE ORIE: Mr. Ralic, it must be unpleasant if -- can you hear

18 me?

19 THE WITNESS: [Interpretation] Yes, I can.

20 JUDGE ORIE: It must be unpleasant to be in a small room waiting

21 for well over an hour if you expect to be called at 9.00 to testify. It

22 might even be more unpleasant if you are then escorted into a courtroom

23 and once over the doorstep are taken out again.

24 The Chamber apologises for this.

25 Mr. Ralic, I'd like to explain the present situation. You are

1 called by the Prosecution as a witness, and the Chamber has read your

2 statement you earlier gave. Your testimony would be about the chain of

3 custody of documents, when you received them, where you took them. Okay.

4 Now, you may understand that to get the complete picture, we'd

5 need to hear more evidence, perhaps from persons who know more about it,

6 or persons who might have been present when they were seized, or at least

7 have more information about other parts of the trajectory of these

8 documents.

9 Now, the parties have suggested to the Chamber that there may be a

10 possibility to prevent all of these witnesses to come to The Hague and to

11 testify, but the parties need a bit more time to further discuss whether

12 they could agree on these matters.

13 Until this morning, it was also not entirely clear what documents

14 would be covered by such testimony, and the parties appear to be ready to

15 further elaborate an agreement on that. Under those circumstances, the

16 Chamber as granted the parties the next hour to further discuss whether we

17 can avoid people traveling to The Hague if there is another possibility

18 which would be more economic both in terms of time and money.

19 Mr. Ralic, you are more or less a victim of this situation because

20 you were the first one. You travelled already to The Hague; nevertheless,

21 the Chamber would ask you perhaps to be patient for the next hour.

22 If the parties are unable to reach such a level of agreement that

23 the Chamber could be confident that a final agreement can be reached, we

24 would hear your testimony. If, however, the parties would report to the

25 Chamber within approximately one hour from now that there is a solid basis

1 for an agreement, then there would be no need to hear your testimony any

2 more.

3 That is not to say that your information under those circumstances

4 would have been useless. I would say not at all, because certainly that

5 information will be included in the communication between the parties

6 trying to find an agreement on the matters dealt with in your statement.

7 So I would like you to ask to be even more patient for the next

8 hour, and you know that depends on what the parties can achieve, whether

9 there's any need to hear your evidence. If there's no need to hear your

10 evidence, then, of course, it is a pity that you spent your precious time

11 on traveling to The Hague and, of course, also psychologically preparing

12 for your testimony.

13 But under those circumstances, the Chamber, unfortunately, will

14 have to decide that the more economic way, both in terms of time and

15 money, would be the appropriate one and would, under those circumstances,

16 beg for your understanding for such a decision. So, therefore, we ask for

17 more patience on your side.

18 You may now follow the usher, who will escort you. I hope at

19 least you get sufficient coffee, so that you are treated well.

20 Would you please follow the usher.

21 [The witness stands down]

22 JUDGE ORIE: I turn into private session for one more second.

23 [Private session]

24 (redacted)

25 (redacted)

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 [Open session]

8 THE REGISTRAR: Your Honours, we're back in open session.

9 JUDGE ORIE: Mr. Re, you're on your feet.

10 MR. RE: Yes. I'd just seek a clarification in relation to the --

11 the ruling you made a few moments ago in relation to Witness 56 and the

12 five minutes that the parties -- for the parties each to address the Trial

13 Chamber in relation to what you described as the admissibility of his

14 evidence.

15 I'd just seek a clarification so we can prepare ourselves for our

16 five minutes if we wish to avail ourselves; namely, by "admissibility,"

17 does the Trial Chamber mean the weight, if any --

18 JUDGE ORIE: No.

19 MR. RE: -- if any, to be given to --

20 JUDGE ORIE: No. From what I remember, but correct me if I'm

21 wrong, there was an issue of making the solemn declaration. The witness,

22 finally, did not manage to pronounce the words; although, I tried to make

23 him pronounce these words.

24 Now, he said a lot of other things. What the consequences would

25 be for the admissibility of the evidence after this start, I think that's

1 the first issue.

2 MR. GUY-SMITH: Precisely.

3 JUDGE ORIE: And then, of course, if the parties would say

4 anything about consistency or inconsistency, that is a matter for which I

5 would say the parties could argue that it would be an admissibility or a

6 weight issue.

7 It goes without saying that if you consider it to be a weight

8 issue, then, of course, the Chamber will, as always, of course, carefully

9 look at the evidence and to see to what extent it is reliable, credible,

10 and consistent.

11 But I also can imagine that a party would argue that under certain

12 circumstances issues which are usually within the realm of reliability,

13 credibility, and consistency, could reach a level at which admissibility

14 would become an issue.

15 MR. RE: The only query I have is the evidence is on the trial

16 record. It's a -- is it a position of whether you disregard the evidence

17 or whether you would then be satisfied that the evidence is there; we will

18 give it some weight --

19 JUDGE ORIE: Yes.

20 MR. RE: -- disregard it, because it's already on the trial

21 record. That's my concern as to --

22 JUDGE ORIE: It's on the trial record. But, of course, the

23 parties could argue -- if a witness would appear here and if I would ask

24 him to give his name and he would give his date of birth, if I would then

25 ask him whether he was born at a certain place and he would answer that he

1 was born on the North Pole and give no proper explanation for that, then

2 we might reach a moment where we say although his answers to the questions

3 are on the record, whether you call that to disregard that or whether you

4 call that that it could not be admitted, because it's not really -- it's

5 words pronounced by a person who apparently cannot serve as a witness,

6 then, of course, I must say that we'd have to think then about whether

7 it's an admissibility issue. It could well be.

8 Although, if witnesses are answering to questions not always in

9 the way we expect them to answer questions, then sometimes to be not fully

10 consistent in every respect, then, of course, that would not immediately

11 to -- lead to conclusions as to the admissibility of that testimony but

12 would, rather, go to weight.

13 So where exactly to draw that line is an issue, I can imagine, the

14 parties would like to address in their five minutes or in their written

15 submissions.

16 MR. GUY-SMITH: I think the issue of -- that you focused on the

17 issues that do exist with regard that this witness's situation and whether

18 or not, for purposes of an admissibility to conversation, a discussion --

19 an exclusion from the trial record or whether or not it's appropriately

20 part of a trial record is something we can -- we can grapple with in our

21 submissions.

22 JUDGE ORIE: Yes. That is rather a technical matter, then; and,

23 of course, the Chamber is mainly interested in the substance.

24 MR. GUY-SMITH: We're focused mainly on the substance, but since

25 the technical matter was raised, I wanted to respond to it.

1 JUDGE ORIE: Yes. The Chamber is looking forward to your oral or

2 written submissions.

3 I now suggest that we take a break for -- until 11.30.

4 Would that give sufficient time to ...?

5 Yes. Then we'll adjourn until 11.30.

6 --- Recess taken at 10.23 a.m.

7 --- On resuming at 12.10 p.m.

8 JUDGE ORIE: I asked myself what would be the best way to proceed.

9 I'll do the following: The Chamber was briefed by one of their

10 legal officers on what the legal officer understood the present situation

11 was. I'll try to give that; and if there's then anything to be added,

12 then -- or if there's anything incorrect in that, the Chamber would like

13 to hear from the parties.

14 The Chamber was informed by -- through the legal officer that the

15 parties had reached an agreement on the chain of custody evidence to be

16 presented, and that there would be no need to hear testimony in court on

17 this matter. That's the first issue.

18 Is that correctly understood?

19 MR. EMMERSON: That is correctly understood.

20 But may I, for the avoidance of any doubt, hand up to the Chamber

21 copies of the product of the work that's taken place.

22 Perhaps if the --

23 JUDGE ORIE: Yes. That is a joint ...

24 Mr. Usher, could you ...

25 JUDGE ORIE: I'll have a look at it. I see that I receive

1 copies - I'll give one to the registrar - that is a one A4 piece of paper,

2 on top "Chain of custody," containing ten items.

3 Mr. Re, that's also the document you had in mind?

4 MR. RE: It is. It's the agreement in principle. I don't think

5 Mr. Emmerson is asking it to be received onto the record. We will put it

6 into a nicer form with a heading on it and attach the annex to it, but

7 that's the -- and there's a couple of spelling errors.

8 JUDGE ORIE: Yes.

9 MR. RE: But that's the agreement in principle.

10 JUDGE ORIE: Okay. So this is the agreement.

11 Now, I want a commitment of the parties that the Chamber will keep

12 this. It is not evidence. The Chamber will wait for further submissions.

13 If a new battle starts on these submissions, the Chamber requires the

14 parties to commit themselves to any decision then to be taken by the

15 Chamber, if there's still new --

16 MR. EMMERSON: Yes.

17 JUDGE ORIE: -- elements arise out of that.

18 MR. EMMERSON: Can I just make two observations?

19 JUDGE ORIE: Yes.

20 MR. EMMERSON: First of all, I don't think either of us

21 anticipates any change in this position.

22 JUDGE ORIE: No.

23 MR. EMMERSON: Secondly, so that it's absolutely clear for

24 purposes of record, what items 1 to 10 are -- is a summary of the evidence

25 that Prosecution would elicit. The Defence for very obvious reasons is

1 not in a position to confirm the accuracy of the content of that --

2 JUDGE ORIE: No.

3 MR. EMMERSON: -- information, but neither is the Defence in a

4 position to dispute it. So it is on that basis; in other words, there is a

5 summary of the evidence that would otherwise have to be adduced or heard

6 by the Trial Chamber that the stipulation would be made, on the basis, as

7 I said, that the Defence is not in a position to dispute it.

8 So with that -- with that explanation, we do not anticipate on

9 either side any significant changes to the document as it appears, other

10 than typographical errors and other matters of a very formal character.

11 JUDGE ORIE: Yes. Now, as far as the documents covered, we find

12 them in an Annex A, which is not here yet, but --

13 MR. EMMERSON: It isn't there yet. But if Your Honour looks at

14 the footnote, Annex A is the list of 20 documents identified at pages 88

15 to 91 of the motion filed yesterday, and that annex is headed in the

16 motion "Documents on the Prosecution's Rule 65 ter list originating from

17 the 24 binders received from BIA in November 2005," and that relates to

18 item 9. So --

19 JUDGE ORIE: May I then -- I'm trying to read through it very

20 quickly.

21 Does this mean -- earlier this morning, we discussed a list which

22 contained three subsets; one being 65 ter -- already MFI'd or exhibited;

23 then three appearing on the 65 ter list, although not yet admitted. So I

24 understand these to be included in Annex A. Then the third portion was

25 three documents which were similar too. I do not find them here. Is

1 that --

2 MR. EMMERSON: No, they are --

3 JUDGE ORIE: -- correctly understood?

4 MR. EMMERSON: They are there. They are included within the 20

5 documents referred to; therefore, the Defence waives any objection to the

6 addition to the 65 ter list.

7 JUDGE ORIE: Okay. So the whole of that list we discussed this

8 morning --

9 MR. EMMERSON: So each of the document is contained within the

10 schedule that we drew attention to this morning at the relevant pages of

11 the motion, and that is what will be Annex A.

12 MR. GUY-SMITH: If I might, for purposes --

13 JUDGE ORIE: One second.

14 Yes.

15 MR. GUY-SMITH: If I might, for purposes of clarification on that

16 very specific point, there are 20 documents. Fourteen of those documents

17 obtain the first position that already having -- already have been

18 admitted. Three are on the 65 ter list; three are not, so it's 14 plus 3

19 plus 3.

20 JUDGE ORIE: Yes. We get that list. There are 20 documents on

21 that list.

22 So if any -- the parties will now work on giving it a different

23 format, but basically saying this.

24 If the parties then, on minor matters, would start quarreling

25 again - which I do not expect, as a matter of fact - then I do understand

1 that there is a commitment of both parties, and that would include all

2 three Defence counsel. Isn't it, Mr. Guy-Smith and Mr. Troop?

3 I see Mr. Troop nodding "yes." Mr. Guy-Smith already adhered to

4 it.

5 Then the Chamber will establish what the agreement is, after

6 having heard the parties.

7 MR. EMMERSON: Just for the Chamber's peace of mind, there's been

8 no quarreling.

9 JUDGE ORIE: Okay.

10 MR. EMMERSON: This has been resolved by, if I may say so,

11 cooperation, reducing the need for the calling of evidence.

12 JUDGE ORIE: Yes.

13 MR. EMMERSON: So far as -- well, Your Honour is going to

14 continue.

15 JUDGE ORIE: One second, please.

16 [Trial Chamber confers]

17 Mr. Emmerson, is there anything to be added?

18 MR. EMMERSON: Not in respect of that matter.

19 JUDGE ORIE: Then, Mr. Re, anything you would like to add on this

20 matter?

21 No.

22 Okay. Then I'll continue for the next one. I'll tell you what

23 information the Chamber received, and then we'll see whether that's

24 correct or not, but we have to go into private session for those purposes.

25 [Private session]

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10

11 Pages 10423-10425 redacted. Private session.

12

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23

24

25

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 [Open session]

21 THE REGISTRAR: Your Honours, we're back in open session.

22 JUDGE ORIE: Being in open session again, in private session the

23 Chamber gave a decision in which it grants the request by the Prosecutor

24 to hear the testimony of Witness 23 through videolink. The reasons will

25 follow.

1 The final thing I'd like to do is to explain to the witness, who

2 has been waiting all morning, that unfortunate for him but, of course,

3 fortunate for the Chamber, that we don't have to examine him, that he

4 doesn't have to testify.

5 Mr. Re, is there anything?

6 MR. RE: That's fine. Just while the usher is --

7 JUDGE ORIE: Yes.

8 MR. RE: To use the time, there are several outstanding summaries.

9 Could we possibly take the time to read those onto the record? I think it

10 might take about ten, 15 minutes.

11 JUDGE ORIE: We have no witness for tomorrow, do we?

12 MR. RE: No.

13 JUDGE ORIE: Then the Chamber would prefer to use the time

14 tomorrow for those matters and not today.

15 MR. RE: I only say that because it's pretty boring listening.

16 JUDGE ORIE: Well, boring or not, we have to organise our work

17 also in such a way that we can stay ahead of all quick developments.

18 [The witness entered court]

19 JUDGE ORIE: Mr. Ralic, I earlier informed you today about ongoing

20 discussions between the parties to seek an agreement on the chain of

21 custody of documents the parties want -- have to some extent already

22 tendered and that were already admitted into evidence.

23 Unfortunately for you, the parties did reach an agreement.

24 That's, of course, very fortunate for the Chamber, because it saves time

25 and it saves money as well. I said "unfortunately for you" because you

1 have spent your time already on traveling to The Hague. Therefore, I

2 think I would speak on behalf of the parties that if they could have

3 avoided the present situation, where you could have refrained from

4 traveling to The Hague, they certainly would have wished to achieve this

5 result at an earlier stage without bothering you to travel to The Hague.

6 Nevertheless, it would be useless to hear your evidence, but I can

7 assure you that the information which was found in your statement has been

8 used in reaching an agreement. I saw references to your statement, so

9 don't get the impression that what you earlier told the Office of the

10 Prosecution in your statement is -- has not turned out to be useful.

11 Nevertheless, no testimony in court.

12 I thank you, I would say, more than average for coming to The

13 Hague, where you didn't have to testify, and I hope that you'll be back

14 home soon and that you have a safe trip home again.

15 Thank you.

16 [The witness withdrew]

17 JUDGE ORIE: Any other matter to be raised at this moment?

18 No other matters to be raised.

19 We will adjourn until tomorrow, Thursday, the 8th of November,

20 quarter past 2.00 [sic], Courtroom II -- III. Yes, I'm ignoring the

21 signals by Mr. Registrar. Thank you for correcting me, Mr. Registrar.

22 We stand adjourned.

23 --- Whereupon the hearing adjourned at 12.35 p.m.,

24 to be reconvened on Thursday, the 8th day of

25 November, 2007, at 9.00 a.m.