Tribunal Criminal Tribunal for the Former Yugoslavia

Page 311

 1                           Wednesday, 1 July 2009

 2                           [Status Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 10.00 a.m.

 6             THE REGISTRAR:  Good morning, Your Honour.  This is case number

 7     IT-95-5/18-PT, the Prosecutor versus Radovan Karadzic.

 8             JUDGE BONOMY:  Good morning, everyone.

 9             Mr. Karadzic, you again appear on your own behalf.  Can you just

10     confirm to me at the outset that you can hear interpretation into your

11     own language.

12             THE ACCUSED: [Interpretation] Yes, Your Lordship.

13             JUDGE BONOMY:  Thank you.  And now I would take appearances from

14     the Prosecution, please.

15             MR. TIEGER:  Thank you, Your Honour.  Good morning.  Alan Tieger,

16     Hildegard Uertz-Retzlaff, and case manager Iain Reid for the Prosecution.

17             JUDGE BONOMY:  Thank you.  And I turn my attention to you

18     straight away, Mr. Tieger.  As a result of decision of the

19     Appeals Chamber issued at the end of last week, it seems to me

20     inappropriate now for you to seek any further action on your proposed

21     fourth amended indictment in view of the success of your appeal.  What

22     action do you propose in relation to that?

23             MR. TIEGER:  We agree, Your Honour.  Thank you.  We would move to

24     withdraw the proposed fourth amended indictment.  We can do so orally.

25     We can follow up with a written submission, if the Court would prefer.

Page 312

 1             JUDGE BONOMY:  No, your oral application here is sufficient for

 2     that purpose, and I note the withdrawal, therefore, of the proposed

 3     fourth amended indictment.

 4             The principal business for this Status Conference is reviewing

 5     certain aspects of certain motions which are currently before the

 6     Chamber.  The first of these is a motion at the instance of the

 7     Prosecution requesting the Chamber to invite Lord Owen to testify as a

 8     Chamber witness.

 9             You Mr. Tieger -- or Ms. Uertz-Retzlaff, the accused,

10     Dr. Karadzic, has responded to that motion.  Is there anything else to be

11     said on the matter before the Trial Chamber deals with it?

12             MS. UERTZ-RETZLAFF:  In relation to the motion response, I can

13     actually only say that Rule 85 provides for the Trial Chamber to change

14     the order of the presentation of evidence in the interests of justice,

15     and Rule 98 allows the Trial Chamber to call witnesses.  That's all I

16     would like to add.  Thank you.

17             JUDGE BONOMY:  And in the event that he is a witness in the case,

18     when would you propose that his evidence should be presented?  At what

19     stage?

20             MS. UERTZ-RETZLAFF:  At the very end, actually.  Our planning is

21     that he will be heard in a -- as one of the last witnesses.  I mean,

22     after -- at the end of the Prosecution case he would be called.

23             JUDGE BONOMY:  I suppose one incidental benefit of his being a

24     Chamber witness is that you would be entitled to cross-examine him.

25             MS. UERTZ-RETZLAFF:  Your Honour, the reason why we asked for --

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 1     for this way of procedure is actually Mr. -- sorry, Lord Owen's wish, and

 2     that's --

 3             JUDGE BONOMY:  It's now his wish, but in the Milosevic -- in the

 4     Milosevic case, it was the suggestion of the Prosecution, I think.

 5     That's what triggered this.

 6             MS. UERTZ-RETZLAFF:  Yeah, but it was, at the same time, also a

 7     request of Lord Owen, and that's why we actually put it forward, and it

 8     went actually well for both sides, I would say.

 9             JUDGE BONOMY:  Mr. Karadzic, is there anything you want to add to

10     what you've said so far?

11             THE ACCUSED: [Interpretation] With all due respect to Lord Owen

12     with whom I cooperated for a long time, the issue in hand is the way in

13     which the Prosecution will cross-examine, and that is going to be

14     determined whether he is going to be summoned as a Chamber witness or a

15     Prosecution witness.  It's not a matter of principle.  It's a practical

16     issue, and I stick by my response to the motion.

17             I think that he should not be awarded any special status, because

18     in such a case a cross-examination by the Prosecution would not serve the

19     purposes of the Defence, would be to the benefit of the Defence.

20             JUDGE BONOMY:  Let's assume for the sake of argument that the

21     Prosecution were not to call him and the Trial Chamber were to decide not

22     to invite him as a Chamber witness.  What would your position be then?

23     Would you be calling him?

24             THE ACCUSED: [Interpretation] It's highly possible that the

25     Defence would seek to summon him.  He was main actors in coming the

Page 314

 1     crisis.

 2             JUDGE BONOMY:  Well, thank you to both parties for these further

 3     submissions.  The Trial Chamber will have to make a decision on this, and

 4     that decision will be made fairly soon.

 5             The second motion I want to deal with, Dr. Karadzic, is the

 6     motion for request for cooperation by the United Nations in support of

 7     your efforts to obtain material that's relevant to your

 8     Holbrooke Agreement motion.

 9             As you know, there was a 65 ter meeting, a meeting under

10     Rule 65 ter, at which I secured your agreement to speak directly to the

11     director of legal affairs of the United Nations, and following that I did

12     so.  And following that, as you know, there was an exchange of

13     communication between her office and one your associates, and understand

14     that that matter is now in hand.

15             It seems to me there's nothing more that the Chamber can do in

16     terms of this motion.  That doesn't mean to say you can't invoke our

17     assistance in other circumstances, of course you can, but I suggest to

18     you that this particular motion has served its purpose and the

19     appropriate course would be for you to withdraw it.

20             THE ACCUSED: [Interpretation] Your Lordship, I received a

21     response from the UN.  Communication has been established, and we've is

22     accepted the conditions offered therein.  Now we're only waiting for

23     notification of a date when my legal advisor can visit the New York and

24     Geneva and to collect evidence.  We can respond immediately.  As soon as

25     they notify us, we will be there.  I believe that things are going well,

Page 315

 1     and I believe that important results will ensue.

 2             JUDGE BONOMY:  That does not really address the point I'm making

 3     to you, which is that the motion appears to have served its purpose and

 4     that the appropriate course is for you to withdraw it.  And if you don't,

 5     then there doesn't seem to be any alternative but for the Trial Chamber

 6     to deny the motion as unnecessary now.  I was just hoping to avoid

 7     unnecessary paperwork.

 8             THE ACCUSED: [Interpretation] If I understood you correctly, you

 9     mean the motion where I request communication with UN to be established.

10     Is that right?  Yes, we can withdraw it since it has served its purpose.

11     Your intervention most probably has helped it to serve its purpose, so

12     thank you.

13             JUDGE BONOMY:  Thank you.  I note, therefore, the withdrawal of

14     that motion.

15             The next matter's a lot more complicated, and that is the motion

16     for an order relating to protected Prosecution witnesses.  This, again,

17     was the subject of discussion at the 65 ter meeting, and at the end of

18     that meeting, it was left in the hands of the Prosecution to consider how

19     the issues surrounding the volume and the number of witnesses in respect

20     of whom there are protective measures might be dealt with to ensure that

21     this trial is as public as possible.

22             Now, Ms. Uertz-Retzlaff, can you update me on any developments

23     since that meeting?

24             MS. UERTZ-RETZLAFF:  Yes, Your Honour.  What -- what we did

25     during the period, we have actually reviewed the witness situation, and

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 1     we have, in fact, 159 witnesses that have some form of protective

 2     measures.  Of those we have contacted 119, and meanwhile we have three

 3     witnesses who have expressed willingness that their protective measures

 4     be rescinded or changed; and we will file a motion to this effect

 5     shortly.  However, 88 of these witnesses have specifically asked that

 6     their protective measures be continued, and we think they have a valid

 7     reason for that.

 8             Of those we have not contacted yet, that's -- we -- rather, of

 9     those who have not been spoken to about the protective measures within

10     that 119, 23 have protective measures in ongoing cases; and, therefore,

11     we did not address this issue with them, particularly, because we don't

12     see a valid reason to ask them to reconsider it when they have these

13     protective measures ongoing in other cases.  However, we have eight

14     witnesses among these 119 for which we did not address this question,

15     particularly, and we will call these witnesses again and speak about

16     protective measures and the need for that.

17             In relation to the 40 witnesses that we have not contacted yet,

18     13 of those enjoy protective measures in ongoing cases, and we really

19     don't see a reason to call these people.  However, the remaining 27,

20     among those are also witnesses whose protective measures date from long

21     time ago, and we will call these witness -- witnesses as a priority to

22     find out whether their situation has changed and whether they would be

23     willing to appear without protective measures or different protective

24     measures.

25             JUDGE BONOMY:  The one category there I don't think I followed

Page 317

 1     was the eight that you referred to.

 2             MS. UERTZ-RETZLAFF:  Yes.  These were witnesses -- these eight

 3     witnesses have been contacted, but when we were talking to them, we did

 4     not address, specifically, the need for protective measures, and we will

 5     do that now.

 6             JUDGE BONOMY:  So does that mean that there are 48 in total who

 7     have not been asked the question?

 8             MS. UERTZ-RETZLAFF:  Yes, Your Honour, that's correct.  No, not

 9     exactly.  I mentioned also the 23, the 23 among the 119, which have in

10     -- in parallel cases.

11             JUDGE BONOMY:  Yes, I understand, but --

12             MS. UERTZ-RETZLAFF:  Yes, but for -- otherwise, the figure was

13     correct.

14                           [Trial Chamber and Legal Officer confer]

15             JUDGE BONOMY:  Our own calculation of the number of witnesses for

16     whom there are protective measures is a bit higher than yours.  It's 182,

17     which illustrates just how complex this whole area is, and I will come

18     shortly to a suggestion on how to deal with its complexity, which is one

19     thing, but there's a separate issue from complexity; and that is

20     determining whether the measures should continue, because Dr. Karadzic

21     has raised the point, as a general one, about reviewing the situation

22     where, first of all, there are so many, and secondly, the events that

23     they're speaking about are many years ago now.

24             So one of the things that I raised with you before and which

25     continues to concern me a little is how he can be put in a position of

Page 318

 1     judging -- of trying to judge whether it's appropriate for any request to

 2     be made to alter the protective measures; or do you think that that's

 3     just something that is not really feasible and on which the assessment of

 4     the Prosecution and the information that they have been able to gather is

 5     all that will be available?

 6             MS. UERTZ-RETZLAFF:  Your Honour, there is always also the

 7     Victims and Witnesses Unit who can take a position.  What we just find is

 8     when the protective measures were granted in the first place, there was a

 9     certain reason for this, and if the conditions haven't changed, and, for

10     instance, if victim witnesses are still living in the municipalities

11     where they were victimised and when perpetrators are still at large, I

12     can't really see how they could now be told now, Although the

13     circumstances are the same, you shouldn't have protective measures.

14             And when it comes to other witnesses like, in particular, insider

15     witnesses who may incriminate, in particular, Dr. Karadzic, I can't

16     really -- I think they even -- when they live in areas where they are

17     easily accessible for followers of Dr. Karadzic, I can't really see how

18     they can be now told there 's no need for this any longer.  So I think we

19     really have to see whether the circumstances the witnesses find

20     themselves in have changed from what it was before, and if so, then it is

21     a matter of reconsidering; but if it is the same, I just don't see it.

22             JUDGE BONOMY:  It may be argued that they have inevitably changed

23     because of the passage of time alone.  And if you bear in mind domestic

24     circumstances, the vast majority of witnesses involved in the most

25     serious of criminal cases and domestic circumstances are known to the

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 1     accused or associates of the accused.  It's much less frequent that there

 2     are protective measures for witnesses that are capable of concealing

 3     their identity from accused people and their associates, because

 4     everyone's living in the one community so often in these cases.

 5             So there may be, there may be, that's all I say, circumstances in

 6     which this institution may be seen as -- as going too far when these

 7     measures continue automatically many years after the events themselves

 8     and have such a -- or have the capacity to have a major impact on the

 9     public nature of the trial.  So I'm really looking for guidance on how

10     the accused can be put in a position of making a reasonable assessment of

11     which witnesses he might responsibly make an application to vary the

12     protective measures in relation to.

13             Now, is there anything more you can give me to assist on that?

14             MR. TIEGER:  Your Honour, sitting here, one thing occurred to me

15     in terms of the issues the Court raised.  It is not a direct response

16     necessarily to the question of the accused's participation or direct

17     participation in the evaluation of the factors, but in comparing the

18     circumstances faced by the Tribunal with domestic circumstances, I would

19     note the differing meaning of "public" in that context.  I, for example,

20     come from a jurisdiction, at least in the federal courts, where the

21     broadcasting, televised broadcasting of proceedings is an anathema for a

22     variety of reasons, including the risk to witnesses.

23             So the public nature of the trial is maintained, but it's not

24     amplified in the manner it is in the Tribunal.  The Court mentioned that

25     in domestic jurisdictions, the identity of witnesses are, in fact, known

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 1     to the accused and his associates, by which I assume you mean legal

 2     associates and that's the case here as well.

 3             JUDGE BONOMY:  No, I didn't mean legal associates.  I meant those

 4     that might have a criminal connections with an accused in a domestic

 5     situation.  In other words, a circle that might be able to do something

 6     in a situation where the accused, himself, is in custody.

 7             MR. TIEGER:  Well, I wouldn't consider that to be a positive

 8     aspect of the domestic jurisdictions.

 9             JUDGE BONOMY:  No, but it's a facts of life is all I was

10     suggesting to you.

11             MR. TIEGER:  I do understand.  I'm just suggesting that where

12     that fact of life need not be exacerbated, for example, through televised

13     broadcasting in many jurisdictions that is not done for that reason.

14     Here we do that.  That adds another factor that, I think, plays a role in

15     our assessment.

16             JUDGE BONOMY:  I think it's a very valid comment to point to

17     broadcasting.

18             Just on one other matter that you raised, Ms. Uertz-Retzlaff,

19     you mentioned that the -- the one positive suggestion you made was that

20     the Victims and Witnesses Section might assist, but in your response to

21     this motion, you've set your face against that as a method of dealing

22     with it.  You've indicated they have a part to play but at an appropriate

23     stage, which is after an application has been made and at a late stage in

24     the proceedings.

25             MS. UERTZ-RETZLAFF:  That's correct, Your Honour, but one can all

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 1     rely -- as you were looking for ways how to deal with the issue, I was

 2     just thinking about -- that maybe a possibility to involve them in that

 3     early stage.  In particular, they have quite an overview of witnesses

 4     from various areas in the -- in the former Yugoslavia, and they may have

 5     valid points to make in overall assessment.

 6             JUDGE BONOMY:  Thank you.  Mr. Karadzic, this motion is yours.

 7     Is there anything further you wish to say in relation to that motion?

 8             THE ACCUSED: [Interpretation] Your Lordship, I hope that you

 9     won't allow the Prosecution to convert this Chamber into a camera

10     obscura.  I absolutely oppose that somebody who is not a victim be

11     protected 15, 17, or 20 years after the event.  There's no reason for

12     that.  And in the erstwhile practice, it has not transpired that any

13     witnesses experienced any inconvenience.  Everything is known, and there

14     is no justification for them to be protected.  I do not seek any delicate

15     victim to be stripped of their protective measures, but the witnesses,

16     well, can you imagine 200 witnesses using protective measures?

17             JUDGE BONOMY:  Thank you.  Now, in relation to the more complex

18     aspect of this, which we discussed at the beginning; that is identifying

19     which witnesses, precisely, protective measures apply to and what exactly

20     these measures are in each case.  The Chamber has in mind to produce a

21     table of its understanding of the existing protective measures.  We are

22     concerned that there have been errors in submissions made to us, and in

23     the latest one, which we received recently - that's the Prosecution

24     notification, the fourth notification of protective measures - there are

25     also errors.

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 1             Now, that simply underlines just how difficult this whole

 2     exercise is.

 3             Yes, Ms. Uertz-Retzlaff.

 4             MS. UERTZ-RETZLAFF:  I'm also concerned when you said, in the

 5     beginning on that topic, that you have actually estimated and checked it

 6     was more than 180.  I was surprised, because we have double-checked it,

 7     because of these various figures that we had discussed in the

 8     65 ter Conference, and our -- our finding is it's 159.  So there must be

 9     some error somewhere or some different views.  So it would be definitely

10     very helpful to have a table.  We do have a table as well, so we could

11     then basically double-check.

12             JUDGE BONOMY:  What is proposed is that a table is compiled

13     showing the Chamber's understanding of the situation, and time is allowed

14     to the parties to make submissions in relation to that with a view to

15     agreement being reached that we have a definitive list of the measures

16     that exist.

17             Now, to make this a worthwhile exercise, we need to know that

18     you've exhausted your intimations to us of the existing measures.  Have

19     you done so?

20             MS. UERTZ-RETZLAFF:  To my knowledge, yes, Your Honour.

21             JUDGE BONOMY:  So it's -- we've reached the stage where it would

22     be appropriate for us to -- to issue that, I think, for the comments of

23     parties and a final determination of the situation.  Apart from anything

24     else, I think it's in everybody's interest be able to refer to one

25     definitive document, which tells us the measures that exist at this

Page 323

 1     stage; and in the absence of any variation between now and the time the

 2     witnesses give evidence will apply to the evidence of these witnesses.

 3             Mr. Karadzic, that table will give you a complete picture of what

 4     exists in the way of protective measures.  It may be difficult for you, I

 5     understand, to make any detailed comments about the measures and about

 6     the table and to assist in correcting it because you're not really in a

 7     position to -- to improve on the information available to the

 8     Trial Chamber and the Prosecution.

 9             The overall picture will assist the Chamber to make a final

10     decision on your motion, but your motion, when it was submitted, related

11     to, I think, 68 witnesses.  We now have far more.  So what might emerge

12     from all of this for you is a starting point if you wish to apply to the

13     Chamber for variation of the measures which exist.

14             Your point at the moment is a very broad one, that there's no

15     reason to provide protective measures for witnesses who are not victims

16     and that there are obvious categories of victims for whom protective

17     measures exist and should continue, very broad proposition; but you might

18     also want to look at in more detail at the list and the table to see

19     whether, in fact, you feel it appropriate to make more detailed

20     submissions about alterations that might be made to these protective

21     measures.

22             Now, I intend to move on to another subject.  On this one is

23     there anything else you wish to say?

24             THE ACCUSED: [Interpretation] No, thank you.  I shall wait for

25     the opportunity once I have a better insight into the whole situation

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 1     regarding protective measures.

 2             MS. UERTZ-RETZLAFF:  Your Honour, perhaps I can also add one

 3     point.  We have looked at the categories and type of witnesses, and we

 4     have actually 91 victim witnesses with protective measures.  That may be

 5     of assistance.  We have 40 insiders with protective measures, 9 Rule 70

 6     witnesses, and 19 others, like, for instance, intercept operators and the

 7     like where the protective measures are -- basically also come from their

 8     institutions and where they work.

 9             JUDGE BONOMY:  Thank you.  That's helpful.

10             The next matter I want to deal with is really a formality.  The

11     Prosecution have made a motion for reconsideration of the Trial Chamber

12     decision dealing with contact by the Defence with Prosecution witnesses.

13             Now, Dr. Karadzic, this is holding up whatever contact with

14     Defence -- with the Prosecution witnesses is ultimately allowed, and,

15     therefore, it would, I think, be of assistance to your own position if

16     you were able to respond to this fairly quickly.  Are you in a position

17     to respond to that this week?  The normal deadline would be the 10th of

18     July, but I think it's in everyone's interest that we try to deal with it

19     more quickly.

20             THE ACCUSED: [Interpretation] Your Lordship, if it is necessary

21     for me to file a written motion, I can do that on Monday, the

22     6th of July.  That is the earliest for me.  If an oral explanation does

23     not suffice, it would be careless of the Defence to allow the Prosecution

24     to inform us whether anyone agrees to contacts with the Defence or not.

25     This should either be done by the Registry or in some other way, but if

Page 325

 1     necessary, I can promise to file this response on Monday, the

 2     6th of July.

 3             JUDGE BONOMY:  I think we would benefit from a written response,

 4     so what I will do is order an expedited response by you on the

 5     6th of July.

 6             The next matter, Mr. Karadzic, is the Prosecution motion to

 7     extend the time again for disclosure of audio files in B/C/S.  I think

 8     when this arose before and there was an extension granted, you did not

 9     object to that.  And the Prosecution seek an extension until the

10     10th of July because of difficulties in translating these -- or, rather,

11     in transferring them.

12             MS. UERTZ-RETZLAFF:  Your Honour, I can update you.

13             JUDGE BONOMY:  Yes, Ms. Uertz-Retzlaff.

14             MS. UERTZ-RETZLAFF:  We actually were very lucky with the

15     reminder of the tapes.  Only a few were causing problems.  We could

16     disclose yesterday 136 audio files.  The only ones that are outstanding

17     now are 40 to 50, and we think we can do it in this week, but they are --

18     this includes the corrupted ones.  So what we did is we asked for ten

19     days to make sure we don't have to come to you, but we are quite

20     confident that we can actually make it faster, but we can't be absolutely

21     sure.

22             JUDGE BONOMY:  Thank you.  Do you have any objection to that,

23     Dr. Karadzic?

24             THE ACCUSED: [Interpretation] In view of the fact that I haven't

25     reviewed even those that I have received, I have no objection.  So you

Page 326

 1     can give them as much time as they need, because I have so much to do.

 2             JUDGE BONOMY:  Very well.  The time will be extended until the

 3     10th of July.

 4             Now, Dr. Karadzic, one of the things you've been doing is -- is

 5     obtaining from other cases as much of the confidential material as you

 6     can.  And in relation to one of them, that's the case against

 7     Dragan Obrenovic, the order made by the Chamber is inconsistent with a

 8     similar order made by the Chamber in the Popovic case.  And the

 9     Prosecution have now drawn that to our attention and submitted that there

10     are two categories of material which our order covers, which if we were

11     to be consistent with the Popovic decision, would not be included in our

12     order.

13             And the two categories are -- one is personal to Obrenovic's

14     family, and the other relates to character witnesses in his case.

15     Neither would appear to have any relationship with your case, and if you

16     accept that, then I can order -- or, yes, I think we'll probably have to

17     confirm it in writing with the Trial Chamber, but I can deal with this or

18     at least indicate how it will be dealt with.  Do you see any problem with

19     this?

20             THE ACCUSED: [Interpretation] Basically, no.  I think that the

21     Defence can respond positively.  On the other hand, I already have a lot

22     of material that I have permission to have access to.  As for the things

23     that are not significant for the case, I have absolutely no objections.

24     Namely, questions such as family, et cetera.  These are matters that are

25     not of significance to me.

Page 327

 1             JUDGE BONOMY:  Ms. Uertz-Retzlaff, the Trial Chamber will vary

 2     the previous decision, but because it was a Trial Chamber decision, it's

 3     probably necessary to do it in writing.

 4             MS. UERTZ-RETZLAFF:  Thank you, Your Honour.

 5             JUDGE BONOMY:  That deals with the motions that I have on the

 6     agenda.  One thing I did omit - and I'm sorry I did, but it may be that

 7     we can make some progress on it - was the issue of expert witnesses.  It

 8     was discussed at the Rule 65 ter meeting, and, subsequently, I did a

 9     little more to try to find out exactly what was going on, and there have

10     been exchanges of correspondence between your associates and the

11     Office of Legal Aid in the Tribunal.  However, the position is still that

12     only one expert has been approved.  There are still exchanges of

13     communications about the forensic science and pathology experts.

14             Now, are you up-to-date on what's going on there, Dr. Karadzic,

15     or is that something that's entirely in the hands of a legal associate at

16     this stage?

17             THE ACCUSED: [Interpretation] My legal associates are working in

18     accordance with my instructions fully, and I have filed the curriculum

19     vitae for several experts.  And a particularly sensitive issue is the

20     issue of forensic experts, and I intend to conduct a thorough

21     investigation and expertise in view of the sensitivity and the haziness

22     that prevails over certain details.

23             One of my associates has addressed a letter to the Prosecution,

24     actually this morning, in connection with the forensic experts.  I have

25     that letter here with me.  It goes into some detail, and I expect then it

Page 328

 1     will be much easier to discuss the issue.

 2             So I believe that we are making process in this area, too, but

 3     this is an enormous amount of material and to be able to respond as to

 4     whether we accept or challenge any of this, my legal associates and

 5     experts have a great deal of work ahead of them.

 6             JUDGE BONOMY:  I understand that, but usually that work at the

 7     start of the exercise is time-consuming.  It's administrative work

 8     necessary to set up the exercise.  But once the expert is engaged, then

 9     it's over to him, and the legal associate can get on with something else.

10             I'm particularly anxious here not to get bogged down in too much

11     communication about the detail, and I am quite happy to get personally

12     involved in dealing with the Tribunal office which manages this matter

13     and your legal associate with a view to speeding this whole exercise up.

14     Please bear that in mind.

15             I know you feel under pressure with the dead-lines that have been

16     set and the volume of material that must be dealt with within these

17     dead-lines, but your associates may feel free to contact the

18     Trial Chamber through Ms. Davidson in front of me if it is felt that

19     direct intervention will assist in cutting through any red tape that

20     might be involved.  So I do not want you to feel that you have to deal

21     with this entirely by exchanging correspondence.  There may be quicker

22     ways if there are difficulties which need to be resolved.

23             Ms. Uertz-Retzlaff, I think the same applies.  The document to

24     which Mr. Karadzic was referring is a letter, actually, it's probably an

25     e-mail from yesterday.

Page 329

 1             MS. UERTZ-RETZLAFF:  That's correct, Your Honour, and we are

 2     already working on this.  We have disclosed some of the material, in

 3     particular exhumation reports and the like, but most of the materials

 4     that is actually referred to in this letter we do not have in house, and

 5     we are actually contacting ICMP today what their position is on this

 6     issue.

 7             JUDGE BONOMY:  That's very helpful, and you'll appreciate the

 8     urgency of it, because we've tried to programme a scheme of dealing with

 9     various issues including this one, and there is a date for a response.

10             MS. UERTZ-RETZLAFF:  Yes.  We are dealing with this

11     expeditiously.

12             JUDGE BONOMY:  Thank you.  Now, does either party -- well, let me

13     deal with you first of all, Dr. Karadzic.  Do you have any other matter

14     in relation to any of the motions that you wish to raise?

15             THE ACCUSED: [Interpretation] I think that I have nothing in

16     particular at this point in time.  However, as you well know, the motion,

17     in connection with the agreement with Holbrooke, is awaiting additional

18     information from the UN.  As you know, the American government has

19     challenged this, and we have filed a submission asking for contact with

20     two officials.  The Swedish government -- or, rather, the minister,

21     Mr. Bildt, is willing to communicate with the Defence, but just now

22     they're busy with the fact that they have taken over the chairmanship of

23     the European Union, so I believe that this contact will be made by the

24     middle of this month.  So this is something that we're working on very

25     expeditiously, and we hope that the Chamber will soon give thought to a

Page 330

 1     procedure whereby it would be possible to establish, once and for all,

 2     whether such an agreement existed or not.

 3             Then there's a question of the Judge, but I don't think I have

 4     anything in particular at this point in time.

 5             JUDGE BONOMY:  As you rightly point out, both of these matters

 6     are in hand.  The Chamber, or at least I have certainly indicated to you

 7     that your Holbrooke motion does require to be dealt with it, and the

 8     Chamber is actively considering how to deal with that, and you may find

 9     that a decision on that is made fairly soon.

10             The other point is out with my control and in the hands of

11     others.

12             Sorry, is there any matter in relation to any motion,

13     Ms. Uertz-Retzlaff, that you wish to raise?

14             MS. UERTZ-RETZLAFF:  No, Your Honour.

15             JUDGE BONOMY:  I want to of move, then, on to a quite separate

16     subject, and that is a very preliminary consideration of the scope that

17     there might be to apply rules within Rule 73 bis in relation to this

18     case.

19                           [Trial Chamber and Legal Officer confer]

20             JUDGE BONOMY:  As parties are aware, a Pre-Trial Conference has

21     been set for the 20th of July.  It's now clear to the Trial Chamber that

22     that date is not realistic and that this trial will not start as soon as

23     that, but -- and is unlikely to start prior to September.  So even the

24     Pre-Trial Conference, I anticipate, will not be before September.  So you

25     can score out the plan for the 20th of July.  However, that's no reason

Page 331

 1     for not, at least, looking at the issue of -- of how the trial might be

 2     made more manageable by application of these rules.  And what I'm really

 3     seeking is your assistance, that's both parties' assistance, in

 4     identifying the areas in which there might be scope for reducing the size

 5     of the trial.

 6             The matter has arisen before.  It's some time ago, I think, since

 7     any submission was made about it.  Dr. Karadzic made submissions many

 8     months ago about this, but they were not followed up in writing, in spite

 9     of an indication being given that in dealing with the preliminary motions

10     they might have been.  That doesn't necessarily mean that you've departed

11     from thoughts that you had before about how the scope of the trial might

12     be more concentrated.  Do you have any initial thoughts on that,

13     Dr. Karadzic?

14             THE ACCUSED: [Interpretation] I should, first of all, like to

15     express gratitude for the patience the Chamber has shown in connection

16     with the agreement with Holbrooke, and I hope that no decision will be

17     made until we have provided the information we're expecting and that

18     there will be an occasion for us to have an evidentiary hearing in

19     connection with that agreement.

20             As for September, I don't know whether you had in mind September

21     this year as the date for the beginning of trial, because the material I

22     have requires months and months of time just to look through it, to

23     classify it, to give instructions to Defence teams in the field to do

24     their investigation.  So I'd like to know September which year you're

25     planning for the beginning of trial.

Page 332

 1             As for the scope of the indictment, I'm really surprised why the

 2     Prosecution has engaged in such a voluminous undertaking.  Because from

 3     the standpoint of proving the truth and forming a puzzle of the truth, I

 4     have no objections, but this is such a vast trial, that it will last for

 5     years, and it will require enormous funds.  And would I not object at all

 6     if the Prosecution were to shorten or eliminate certain things and make

 7     the process more effective and more focussed rather than amassing 200 or

 8     300 witnesses under Rule 92 bis, which is making the whole trial more

 9     problematic.  It would be less so if the Prosecution were to focus on

10     certain fundamental issues if they did have such issues, but I am quite

11     confident that they don't have a case against me.  So they're trying to

12     hit me with an air rifle.  I don't want to be unpleasant.  I think that I

13     would be far more successful if I were to accused them of more minor

14     infringements.

15             JUDGE BONOMY:  Thank you.

16             Mr. Tieger.

17             MR. TIEGER:  Your Honour, I'm -- the Prosecution is happy to talk

18     with the Court concreting about any aspect of case it sees fit, but since

19     the matter was raised broadly by the accused in terms of making the

20     presentation more effectively, identifying the fundamental issues, and so

21     on, I think it's incumbent upon me to note that, as expressed in the

22     previous Status Conference, I believe, there was some expectation about

23     the impact of the accused's anticipated compliance with Rule 65 ter and

24     the provision of a pre-trial brief which would, indeed, narrow those

25     issues.

Page 333

 1             Notwithstanding the assurances made at that Status Conference and

 2     an order by the Court that tracked those assurances, that has not been

 3     done.  And any objective of Rule 65 ter toward narrowing the issues, and

 4     I think that is a large part of 65 ter (G), are not available to us for

 5     that reason.

 6             More broadly, I'd say in terms of fundamental issues in the case,

 7     I don't think it's necessary for the Prosecution to say that the

 8     components of the case that we've identified, the alleged ethnic

 9     cleansing of 1992 through 1995, the siege of Sarajevo, the events in

10     Srebrenica, are rather fundamental issues, and we certainly intend to

11     pursue those in the most effective and expeditious way.  But the

12     suggestion that those can be dispensed with by focusing on something that

13     might be characterised as more fundamental issues I don't think is

14     helpful.  I think the provision of a pre-trial brief that comply with

15     Rule 65 ter would have been vastly more -- of vastly more assistance.

16             JUDGE BONOMY:  The pre-trial brief is only now in my hands.  I

17     note your remarks, which I think relate to the lack of concentration on

18     factual issues in it, in any detail at all.  And the consequences of that

19     will have to be considered and, if appropriate, then steps will be taken,

20     but that may or may not be possible.  I'm not in a position to comment.

21             However, what I understand by more fundamental issues from

22     Mr. Karadzic is a reference to evidence of his individual criminal

23     responsibility, and I think the suggestion from his point of view that it

24     would be helpful to everyone to identify clearly the evidence that points

25     to that.

Page 334

 1             Have you given thought at all to -- to the time that's likely to

 2     be necessary to present the Prosecution case?

 3             MR. TIEGER:  Well, I guess, I don't want to say of course because

 4     I don't know that it was necessarily a rhetorical question, but we

 5     certainly considered in a variety of ways as we were producing, for

 6     example, the witness list.  We continue to look at the time required to

 7     present the case.

 8             If, and I don't want to re-interpret the Court's questions

 9     because I'm sure the Court can do that much more effectively for me, but

10     if the Court is asking us to reconsider, for example, individual time

11     assessments for witnesses, whether or not there are witnesses whose

12     evidence overlaps, and whether or not some more economical approach can

13     be used, I can assure the Court that we certainly do that on an ongoing

14     basis and will continue to do that.

15             JUDGE BONOMY:  But from my use of, I think, an American

16     expression, do you not have in your preparations a ballpark figure for

17     the time that you expect the case to take, from the Prosecution point of

18     view?  In other words, how many hours you think presenting your case will

19     take.

20             MR. TIEGER:  We do, Your Honour, and I think that's -- that's

21     encapsulated in the summary of -- or in the aggregation of the times for

22     the witness presentation.

23             JUDGE BONOMY:  And what does that come to?

24             MR. TIEGER:  That's approximately 490 hours.

25                           [Trial Chamber and Legal Officer confer]

Page 335

 1             JUDGE BONOMY:  Is that calculation based on the assumption that

 2     the various 92 bis, et cetera, motions will be granted?

 3             MR. TIEGER:  Yes.  It incorporates those figures based on that.

 4             JUDGE BONOMY:  You appreciate that taking, just for the broad

 5     purposes of a very rough calculation, 60 per cent of that time for

 6     cross-examination and maybe 10 per cent of the total for all the

 7     administration that goes on in the course of the presentation of the

 8     evidence, we're talking about a period, I think, significantly in excess

 9     of a year for the presentation of the Prosecution case.  Is that

10     consistent with your understanding?

11             MR. TIEGER:  Well, I --

12             JUDGE BONOMY:  I mean sitting five days a week, four hours a day,

13     it would take 43 weeks, I think.

14             MR. TIEGER:  I think that would be for the -- for the total case

15     incorporating the cross-examination and the administrative matters, yes,

16     I think that's about right.

17             JUDGE BONOMY:  But being realistic, things never work that way,

18     do they.  You don't manage to pack it into 43 weeks, 5 days a week.  So

19     it's going to be -- and 43 weeks is probably longer than a year itself

20     when you take interruptions for leave and other reasons.

21             MR. TIEGER:  That is a reality, of course, that we face, but it

22     can be narrowed as we've seen in comparison with different court

23     practices.

24             JUDGE BONOMY:  And, indeed, it can be expanded, depending on the

25     decisions made in relation to your motions.  So we may have to be

Page 336

 1     talking -- we may have to be talking about other ways of looking at this.

 2     I mean, I understand your point that Srebrenica might be seen as the

 3     discrete element, Sarajevo, and the ethic cleansing; but if you take the

 4     ethnic cleansing on its own, it's not immediately obvious why there must

 5     be 27 municipalities dealt with individually.  It may be that the fourth

 6     element which you haven't mentioned in the indictment, that of the

 7     hostage taking, perhaps is an element that we just don't have the luxury

 8     of the necessary time to deal with it.  It may be we don't have time to

 9     do both Srebrenica and Sarajevo.  I don't know.  I think this is going to

10     have to be a much more intensive debate, but probably in September.

11             My purpose in putting this on the agenda today was so that we

12     don't leave here unaware of each other's perception of this issue and the

13     need to be creative, I think, in our thinking if we want to ensure that

14     the largest possible volume of material in relation to all these issues

15     can, in fact, be presented in the course of a trial.

16             Now, that exhausts the agenda I have.  Dr. Karadzic, is there any

17     other matter that we have not so far discussed that you wish to raise?

18             THE ACCUSED: [Interpretation] Yes, Your Lordship.  I would like

19     to revisit the issue of protective measures for one witness - I will not

20     mention that witness's name - from an important (redacted).  I seek that

21     protective measures be removed or for him to be removed from the witness

22     list.  I would like him to be a witness but without those measures,

23     because that agency, unfortunately, perform activities which are

24     unacceptable in our territory, and I would like to look into this.

25             Another thing I'd like to say is that I was a bit relieved,

Page 337

 1     because I see that the Prosecution does not want us to work in two

 2     shifts, eight or ten hours a day, or four- or five-day working week.

 3     Maybe we should consider working in three shifts.

 4             JUDGE BONOMY:  That may not be their decision.  You haven't seen

 5     the 24-hour-a-day sitting schedule, have you?

 6             THE ACCUSED: [Interpretation] Well, given the volume and the

 7     planning involved, maybe it would be a useful precedent, who knows?

 8             So far as issues that I'm supposed to raise are concerned, may I

 9     remind you that I requested from 24 countries and two international

10     organisations to provide certain information.  We are waiting for their

11     replies.  Eighteen out of them have not responded, five of them responded

12     to the fact that they are going to consider my motion, and three of them

13     rejected to furnish voluntarily such information, and, unfortunately, I

14     will have to seek redress from the Chamber.

15             Unfortunately, this is the first wave of information that I'm

16     seeking from international organisations and countries.  I foresee more

17     problems when I seek to be furnished with sensitive information and data.

18     I believe that all countries supporting the work of this Tribunal have to

19     furnish everything that will help us get to the truth.  Of course I

20     observe Rule 70 and their concerns about protection of their confidential

21     information, but they should have no secret before this Trial Chamber.

22     This is my opinion.

23             JUDGE BONOMY:  Thank you.  I note what you say.  The matter you

24     raise in relation to protective measures will require a motion in

25     writing.  It doesn't need to be too complex, but it does need to reflect

Page 338

 1     the -- some detail of the reasons for seeking that variation.

 2             Mr. Tieger, is there any other matter that you wish to raise?

 3             MR. TIEGER:  No, Your Honour.  Thank you.

 4             JUDGE BONOMY:  There is a courtroom booked at present for the

 5     morning of the 22nd of July for a further Status Conference.  It's not

 6     clear at this stage if that will be necessary.  If it is, then a

 7     Scheduling Order will be issued at least a week beforehand.  Failing

 8     that, there will be a Status Conference in the course of August, the

 9     details of which would -- will be intimated, but exactly when that one

10     takes place will depend on necessity:  What work is there that requires

11     the attention of the Pre-Trial Judge in the course of a

12     Status Conference.  Meanwhile, we will continue to deal as expeditiously

13     as possible with the various matters which are currently before us, and

14     we will give it further consideration to the briefs submitted by the

15     Prosecution and by the accused and decide if any further action is

16     required on these.

17             You have something else, Mr. Karadzic?

18             THE ACCUSED: [Interpretation] Yes, Your Lordship, I do have, to

19     wit I was supposed to receive by the 16th of June translation into

20     Serbian of the motion concerning adjudicated facts.  I have not received

21     it yet, so I'm not sure whether I will be able to stick to the dead-line

22     of the 14th of July, which I could theoretically observe since I have to

23     respond to the second motion concerning adjudicate the facts.

24                           [Trial Chamber and Registrar confer]

25             JUDGE BONOMY:  I'm concerned to learn of this, and I will make

Page 339

 1     inquiries immediately after this sitting to find out what the position

 2     is.  I would certainly not expect you to respond by the 14th of July, if

 3     you have not yet received it.  So in the light of the information I get,

 4     I will give you an alternative date for responding, which will allow you

 5     at least the same time as you would have had, which is what, four weeks

 6     from the time that you have the translated version.  So an adjustment

 7     will be made to accommodate that.  Thank you.

 8             So that completes the work of the Status Conference, which is now

 9     adjourned.

10                           --- Whereupon the Status Conference adjourned

11                           at 11.08 a.m.