Tribunal Criminal Tribunal for the Former Yugoslavia

Page 110

 1                           Monday, 17 August 2009

 2                           [Rule 65 ter Conference]

 3                           [Closed session]

 4                           --- Upon commencing at 11.14 a.m.

 5             JUDGE BONOMY:  Good morning everyone.

 6             MR. SLADOJEVIC:  Good morning, Your Honour.

 7             JUDGE BONOMY:  I suppose this is properly described as a 65 ter

 8     meeting.  If we need a designation for it, that should make it clear to

 9     all concerned that although it's taking place in private, in camera, that

10     as before, the transcript will, if it seems appropriate, be made public.

11             The first thing, I think, to do is to record who is present.  I

12     note that Mr. Karadzic is present, as he has been at any such meetings,

13     but I'm delighted to see that he is not on his own this time.  I won't

14     express too high a degree of pleasure at that, just at the moment, but I

15     think it's a very useful exercise on this occasion to have the assistance

16     of at least one of his assigned associates, and I take it you are

17     Mr. Sladojevic.

18             MR. SLADOJEVIC:  Yes, I am, thank you.

19             JUDGE BONOMY:  Well, I'm pleased to meet you.

20             Can I now have confirmation of who is here for the Prosecution.

21             MS. UERTZ-RETZLAFF:  Mr. Nicholls, Julian Nicholls, trial

22     attorney, and myself, Hildegard Uertz-Retzlaff.

23             JUDGE BONOMY:  Thank you very much, Ms. Retzlaff.  I have ask the

24     Registry in the form of someone from OLAD at least should be here, and we

25     have Ms. Reinhardt in that capacity.  Now, I want at the outset to make

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 1     one thing very clear to avoid any misunderstanding.

 2             And that is that I don't have power, nor does a Trial Chamber as

 3     an entity have power to tell OLAD what to do or the Registry what to do

 4     in the context of this sort of meeting.  Obviously there are

 5     circumstances in which the Trial Chamber may be asked to make

 6     determinations which do affect the work of the Registry.  So my role in

 7     this meeting, which is for a fairly limited purpose, is to try to

 8     facilitate agreement on matters, insofar as there can be agreement.

 9             I anticipate, however, that we will not leave here with clear

10     agreement on how matters affecting all the expert witnesses that are at

11     issue today are to be resolved from here on in.  But let's see how far we

12     can go.  And the first issue I would like to address is the question of,

13     I think, broadly is best described as the issue of DNA.  It was when I

14     saw the exchanges of correspondence about this that I thought that it was

15     worth having this meeting to make sure that there are no

16     misunderstandings about where we are going on this.

17             Now, I think the best plan, Mr. Sladojevic, if you don't mind, is

18     for you, if you are willing to do so, and Mr. Karadzic is happy that you

19     should do so, if you could explain to me exactly what it is you have

20     requested is provided to you, and the reason for that in as simple terms

21     as possible.

22             MR. SLADOJEVIC:  Well, if I may I suggest that I explain at least

23     how I understand the whole problem with the ICMP and the pathology

24     reports that we need.  There are a couple of steps the Defence has to

25     undertake in order to establish basically what happened in Srebrenica and

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 1     other crime bases.  So basically the evidence that in Srebrenica had been

 2     killed or died so many people are the DNA reports on the one hand, and on

 3     the other hand, pathology reports or exhumation reports on the other

 4     hand.  The first one serves to establish the identity of the victim, and

 5     the other one to establish the causes and mechanisms or reasons of that,

 6     origin of that.

 7             So our position is to ask basically, was to ask the Prosecution

 8     and ICMP through the Prosecution to disclose all relevant documents that

 9     are related to the identification of victims, and because of the very

10     limited resources that we have at our disposal, we suggested to analyse

11     about 5 per cent out of approximately 6.000 allegedly done identification

12     cases, which is around 300 cases that the ICMP basically did.

13             And then on the basis of this analysis, to give our assessment or

14     the -- to give his assessment of the validity or accuracy of the

15     procedure.  Now the -- our expert explained that he needs 300 cases for

16     the following reasons, because the Prosecution expert, Dr. Parsons, he

17     said that the procedure of establishing identity of victims has evolved

18     over time since 2002.  So that's around last -- it concerns the six

19     years, so we suggested then 50 cases for each year, which makes 300.

20             Now, that is only one side of the problem that we have.

21             The other side of the problem luckily for me was explained to

22     greater detail by the forensic expert Dr. Dunjic, and so he sent a

23     memorandum or a letter explaining the problem in greater detail.  So if

24     you don't mind, I can -- unfortunately we have it only in Serbian

25     version, in Serbian language, and since we got it last night, and if you

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 1     would like, I could give you -- I have three copies with me, so you can

 2     maybe have it translated soon.

 3             JUDGE BONOMY:  But does that say essentially what has already

 4     been said in the communication before from Dr. Dunjic?

 5             MR. SLADOJEVIC:  No, he developed it further basically.  And just

 6     to finish the other topic, the ICMP and I finally established the

 7     communication with Mr. Kleiser from the ICMP, and he suggested that he

 8     needed to consult the donors of the DNA, family members, which will take,

 9     in his view, a couple of weeks, if not months to get.  And this really

10     puts us in a very difficult position to do our duty within the time

11     limits allowed by the Trial Chamber.

12             But if I may, I can read out this letter which I can do in a

13     shorter version, which will take me 15 or 20 minutes maybe but you can

14     have a complete picture of the problem, if you want.

15             JUDGE BONOMY:  Perhaps you, first of all, could assist me with

16     some detail.  In relation to the DNA testing that has already been done,

17     is the exercise envisaged, looking at the results and the work that was

18     done to achieve these results, and assessing whether that was good or bad

19     or accurate or not, or is the work you envisage actually doing the job

20     again, doing the whole DNA analysis again?  Which is it?

21             MR. SLADOJEVIC:  Well, for the purposes of the motion, I think

22     that, I believe that the analysis that we would like to do is to confirm

23     or let's say put a test to the accuracy of the procedures and proceedings

24     that were collected by the ICMP.  But we basic -- our expert told us that

25     he couldn't make any -- he couldn't give us any opinion until he has seen

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 1     the raw material underlying the aggregate reports made by Dr. Parsons and

 2     by others.

 3             JUDGE BONOMY:  But you envisage that it's a question of reviewing

 4     the material and the results rather than conducting a totally independent

 5     DNA assessment; am I correct?

 6             MR. SLADOJEVIC:  Well, I couldn't agree with that, because I

 7     think that the point he will -- our expert Mr. Stojkovic would like to

 8     get his 300 cases of raw material and which includes electropherograms

 9     and all the other things that I didn't master, those kind of things, but

10     as I understand it, he -- let me just consult the notes, because I have

11     it.

12             MR. KARADZIC: [Interpretation] [No interpretation] ... is looking

13     for the material, I am a doctor, I know how these things go, I worked on

14     that, although I am a psychiatrist, but did I cover that in my studies.

15     Anyway, what we need is to have access to all the material available to

16     the experts of the Prosecution when they were compiling their reports.

17     So we need to have exactly the same material that they base their

18     assessment on.  We cannot assess their report until we see exactly the

19     same material that they had in front of them when they were drafting

20     their report.

21             JUDGE BONOMY:  That I have clearly understood.  It's the purpose

22     that I want to be clear about and it sounds as though the purpose is to

23     review the material, rather than to do a quite separate cross-check.

24     It's a question of looking at what was done and having available all that

25     was before the original expert and coming to a view on the quality of

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 1     that work.  Now, is that your understanding, Mr. Sladojevic?

 2             MR. SLADOJEVIC:  Well, my understanding -- I suggested the OTP

 3     [indiscernible] a little bit the work of the ICMP in the transcript of

 4     Dr. Parson's testimony, and I believe that our experts will want to apply

 5     independently the tests on the results of the ICMP which is -- the ICMP

 6     changed the methods of extracting the DNA from bones into a more

 7     efficient methodology, so basically our expert wants to check whether the

 8     results of or a samples taken from bones correspond to the samples given

 9     by the DNA donors of the family members, basically, to see whether these

10     correspond.  And in order to do that, he needs to have a random sample of

11     300 cases as suggested, especially in the electronic form because the

12     Prosecution disclosed the electropherograms, which are very important for

13     the analysis in the hard copy format; he cannot do that, because he wants

14     to put the electronic, the electropherograms in his computer system

15     programme and then run the results.  And that is only one side of the

16     coin, of the problem, because this is a -- very connected to the work of

17     our pathologist, Dunjic, and conducted both analysis will be able to

18     establish whether the accurate and correct methodology was used in

19     establishing the identity, first of all, of victims, and in addition to

20     that the numbers, and then the reasons and causes or origins of death for

21     the people, for the victims in Srebrenica.

22             As I said, I could read out the shorter version of the letter for

23     you to get a better picture because it really provides the other side of

24     the coin.

25             JUDGE BONOMY:  I'll allow you to do that in a moment.  Dunjic has

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 1     already carried out significant amounts of work in connection with other

 2     cases, and has given evidence here already.  Now, one of these cases is a

 3     Srebrenica case and is currently before the Tribunal.  I take it that he

 4     is able to make use of the work he did in other cases in preparing what

 5     he has been asked to do for you.

 6             MR. SLADOJEVIC:  So far the report that is he produced in

 7     Srebrenica of course he will be able to use it, but the problem in the

 8     Popovic et al case where he also acted as a Defence expert was that he

 9     never got the necessary hours to conduct the same analysis that he is

10     suggesting now for our case.  That was the problem, and he addresses also

11     among other issue, that issue which occurred in the Popovic et al case,

12     so only to a certain extent he can help us with his analysis in Popovic

13     et al case.

14             JUDGE BONOMY:  And one other thing you mentioned was the problem

15     of consent by relatives to the use of the material.  Some correspondence

16     earlier referred to that, but we have not seen a copy of the consent

17     form, do you have that?

18             MR. SLADOJEVIC:  Yes, I got the consent form.

19             JUDGE BONOMY:  Could I see a copy, please.

20             MR. SLADOJEVIC:  Yes.  Unfortunately, it is in B/C/S.

21             JUDGE BONOMY:  Maybe the Prosecution has a copy.

22             MR. NICHOLLS:  Your Honour, I can show Mr. Sladojevic my copy and

23     I think we probably have the same ones.  There were two, Your Honour.  If

24     I could show you.  I'll hand one to my colleague. [B/C/S on English

25     channel] Your Honour, what we have now is, I suppose I should say just

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 1     for the record what I'm looking at it's U016-8978 is our evidence number.

 2     This is the current form or consent form, Your Honour, which, as I

 3     understand it, is -- has been used since 2007.  And it's a very clear

 4     form where the donor either consents or does not for use in criminal

 5     proceedings in courts.

 6             The problem is that the vast amount of donors relevant to the

 7     Srebrenica case used an earlier form, which I will hand to my colleagues,

 8     and Mr. Sladojevic can tell me whether it's the same one.  This does not

 9     have a number, Your Honour.  And the translation is on the top.  This one

10     as Dr. Kleiser has explained in his e-mail, which Mr. Sladojevic has

11     shared with us was a short of blanket form which was used by donors,

12     family members, looking for their missing relatives, and does not

13     contemplate use of the samples in national or international courts.

14             MR. SLADOJEVIC:  If I may, the only thing that we don't

15     understand, and we were never explained, is that our understanding is

16     that some genetic data contains the most private information about the

17     person like the susceptibility to disease or a specific behaviour.  And

18     the genes that were and analysed in analysing forensic genetics has

19     specifically been selected.  In 1996, it was suggested to us by our

20     expert and so that they can not provide any information with the testing

21     individuals other than their identity.  And the only answer that I got

22     about from Mr. Kleiser was that the consent form is self-explanatory.

23     So we have no other information about the suggestion that basically that

24     we don't need to or they don't need to ask for the consents to the

25     donors, although I understand the position is different on your side.

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 1             MR. NICHOLLS:  I'm not sure what that last comment meant, but I'd

 2     agree that the consent form is self-explanatory.  If I can just say my

 3     understanding is that, and I'm not an expert, is that the DNA used or

 4     included by the donors may be limited in some respects, but there are

 5     still, of course, privacy concerns.  It is the person's DNA.  It

 6     identifies them.  And more than that, the entire database which the

 7     Defence have requested not only identifies all of the donors, many of

 8     whom signed the form stating that their material would be private, but it

 9     also, Your Honour, allows one to reconstruct all of the family

10     relationships which can also implicate privacy interest.  So it goes

11     beyond just the individual.

12             JUDGE BONOMY:  In any event, it's desirable that the use of this

13     material shall be done by agreement.  Other the other hand, if reasonable

14     agreement can't be secured, then there is an issue which the

15     Trial Chamber might have to resolve if it was seen that there was some

16     potential unfairness in the use of material which could not be checked,

17     then that would have to be addressed at the appropriate time, and we

18     haven't reached that stage.

19             MR. NICHOLLS:  No, Your Honour, if I may respond to what you've

20     just said.  I think there is substantial agreement on many parts of this,

21     which is that the Defence should be able to test the evidence adequately

22     and should have access to it.  The only issue is the logistics of

23     obtaining consent properly.

24             Now, what my understanding from the e-mail from Mr. Kleiser,

25     Dr. Kleiser back to the Defence, was that in principle they find the

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 1     request for 300 samples reasonable.  That would entail obtaining consent

 2     from around 1.000 individuals, which they will do, but it will take time.

 3     The question that hasn't been answered really other than just we need

 4     that many is why it needs to be such a large sample, 5 per cent or 300,

 5     and why it couldn't start perhaps on a rolling basis with a fewer number

 6     of samples.  What the Defence have access to, and just to be clear, we

 7     don't have any material from ICMP and no in-house material that we are

 8     not disclosing.  Everything we have from ICMP we have the same as the

 9     Defence.  But the Defence have, which I've brought a copy of, the missing

10     persons report which is attached, it lists all of the still considered

11     missing from Srebrenica, this is from the ICRC list as well as is

12     identified, as well the periodic updates which we received from ICMP.

13     These updates contain the name of every individual, their date of birth,

14     the case ID, the protocol, lots of information, where they were found,

15     the jurisdiction they were found in, the date of disappearance, the date

16     that the result was submitted or finalised, and the type of report.

17             And this lists, with each update, everybody, every individual

18     identified, and the new individuals are highlighted in a different colour

19     so they can see in a last six months.  So there's no reason I can think

20     of why using this list, the Defence couldn't select randomly by year

21     individuals to be tested and ICMP will then obtain the consent forms and

22     as they did regarding Bisina, the Bisina incident in the Popovic case,

23     disclose the entire file.  So there's no -- my understanding from the

24     ICMP, there's no refusal to comply.  There's no refusal on our part.

25     It's just simply a matter of how to select an adequate representative

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 1     number, and then, although it will take time, that consent can be

 2     obtained and all the information will be provided.

 3             JUDGE BONOMY:  I assume from all you've said and from the

 4     correspondence, Mr. Nicholls, that identity is an essential part of a

 5     Prosecution case.

 6             MR. NICHOLLS:  Again this is not a part of a case I've worked on,

 7     although I was on the Popovic case intimately.  What is more important

 8     than the identity of the each individual is to show that the persons

 9     found are unique individuals.  The reason for that is that in some

10     instances parts of one person's body shows up in different sites,

11     different locations as the bodies were moved or shifted around.  So more

12     than saying this is so and so, this is this person's name, this is when

13     he was last seen, what is most crucial about the evidence is showing the

14     actual number of unique identified people avoids the problem of perhaps

15     somebody being counted twice.  The identifications as well show who these

16     people are, and it is an important part of the case because it shows that

17     they disappeared from Potocari or in the woods, but that evidence is

18     corroborated by lots of -- this has been done before many times and

19     there's -- we feel that is not as crucial as the showing that we've got a

20     unique individual.

21             JUDGE BONOMY:  It's important not to lose track of the bigger

22     picture here and to remember that the DNA identification of individuals

23     may not be the sole evidence on which the Prosecution is relying, and

24     that the precise determination of the cause of death of individuals may

25     not be something that is essential at the end of the day to prove the

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 1     broad case that the Prosecution presents.  That's not to say that you

 2     might not be able to show that perhaps a few cases have been wrongly

 3     explained as deaths which look like executions rather than in combat,

 4     just to pick an example.

 5             Now, I don't dispute for a moment your right to investigate this

 6     case in the way you consider appropriate, but when it comes to the use of

 7     public resources which have to be authorised, then account has to be

 8     taken of the purpose for which this is being done in the context of the

 9     case and the issues in the case.

10             At this stage, it's very difficult for me to have a clear picture

11     of how necessary all of this will turn out to be, but what I can tell is

12     that there's agreement that you should be doing the work that you wish to

13     do in relation to a proportion of these examples, and when I say

14     examples, I mean a proportion of all the one who have been identified by

15     this method.  But there also seems some sense in what Mr. Nicholls says

16     that while there may be a desirable amount of 300, that there must be a

17     lower starting point at least because it's going to take time to get the

18     necessary authority for whichever number you select here.

19             So I -- what is emerging is consistent with my understanding

20     that -- that you may have been reluctant to commit yourselves to doing

21     things in a certain way because, and I understand your point of view, you

22     might feel well if I say, I'll do 50, then I'll be seen as having given

23     up my case to do 300.  Well, I think what is emerging at the moment is

24     that you wouldn't be seen to be doing that because you've got the ICMP on

25     your side as indicating that 300 is a reasonable sample, but I think you

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 1     are going to have to start this job with a lower number.

 2             Bear in mind also this:  That at this stage in the case, your

 3     concern is with how you challenge 92 ter -- sorry, 92 bis motions, and

 4     how you prepare to cross-examine the Prosecution witnesses.  There is

 5     going to be another stage at which you are going to have to produce

 6     reports.  Now, I had hoped when all of this started that perhaps your

 7     experts would be able to produce reports at this stage in the case.  It's

 8     clear to me now that that is not going to happen, that it's just

 9     impossible, and that we then have to tailor our expectations of the

10     experts.  So the main thing is to make sure that you have adequate

11     material for cross-examination, for challenging the Prosecution case.  I

12     don't envisage now any agreement being reached that you accept the

13     scientific experts in relation to DNA identification and pathology and

14     exhumation.  That's just not going to happen.  So you've said what you

15     can so far in respect of that 92 bis motion.  If there's anything else --

16     is the dead-line passed for the -- 1 September.  But Mr. Karadzic has

17     already indicated that there's going to be cross-examination of these

18     witnesses, that's his wish.  But if there's anything further to be said,

19     then it can be said by the dead-line.

20             But I imagine the Trial Chamber is going to be faced, in this

21     instance, with the question, do we order cross-examination, authorise

22     cross-examination of the evidence in relation to this issue.  Now, I

23     can't prejudge that at this stage, but I think without -- I'm sure the

24     Prosecution will understand that indication that it seems likely that

25     some of the Prosecution scientific witnesses included in the motion for

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 1     eight experts are not likely to be simply accepted by the Trial Chamber

 2     without any form of cross-examination.  Now, exactly what the decision is

 3     will emerge after your submissions have come in.  But in relation to this

 4     sort of area where there clearly are issues that you are still exploring,

 5     and quite rightly exploring, it's difficult to imagine such a decision.

 6     Of course the Trial Chamber could postpone the decision and see how your

 7     work develops and invite the Prosecution not to lead that evidence until

 8     later in the trial and see if there's some issues that can be resolved so

 9     that we can then focus, but that's an ongoing exercise.  That is not

10     going to be completed in the course of the pre-trial phase.

11             So I would like to hear your comments on the suggestion that ICMP

12     are invited to concentrate on perhaps getting say 100 rather than 300

13     examples to you to get the work started.

14             MR. KARADZIC: [Interpretation] Your Lordship, I would like to add

15     my comments once Mr. Sladojevic has read a shortened version of the

16     letter by Mr. Dunjic, but in principle, we do agree that complete

17     confidentiality be provided to the donors.  And, of course, I don't see

18     why we wouldn't be granted this.  But we can't know this until we have

19     all these electropherograms, which we would then use to explore by using

20     a special programme to make sure that there are no duplicates.  And as

21     for the consent forms, this could be done once the selection of the 300

22     random samples has been done, and we can, of course, discuss this with

23     Mr. Stojkovic and Dr. Dunjic to see what the best way to proceed would

24     be.  But what I would like to say is we do not oppose certain matters

25     being admitted without cross-examination if they are reasonable and we

Page 124

 1     can confirm that they are accurate.  So we are not trying to obstruct

 2     anything here, we are just trying to be rational in our procedure.  I

 3     believe that once we have done our examination and research, and after we

 4     have provided our comments, we are sure that the Prosecutor might want to

 5     also adapt their own comments and procedure and this could help the

 6     economy of the trial.

 7             But I would I now like Mr. Sladojevic perhaps to read.

 8             JUDGE BONOMY:  Just one moment.  Mr. Nicholls, is it your

 9     understanding that [B/C/S on English channel].  Is it your understanding

10     that the electropherograms can be disclosed in electronic form without

11     consent?

12             MR. NICHOLLS:  No, Your Honour.  That's not -- excuse me.  No,

13     Your Honour, that is not my understanding.  I think those were -- the

14     issue I don't understand is why the entire donor database must be

15     disclosed, that's the problem in order for the random selection to be --

16             JUDGE BONOMY:  Let me come back to that.  I understand that.

17     Mr. Karadzic, are you saying that the electropherograms themselves do not

18     enable identification of the individual.

19             MR. KARADZIC: [Interpretation] Your Lordship, now I'm talking

20     about overlaps and duplicates.  This is the first task that we need to

21     complete if DNA sample.  I'm just talking about the victims and the

22     remains here.  If one of the DNA samples is duplicated, we are going to

23     leave it out, so it would be good to look at the entire material without

24     names.  At this stage --

25             JUDGE BONOMY:  That's the point I am making.  This would enable

Page 125

 1     to you to tell if two samples referred to the one person, I understand

 2     that that.  Are you saying that that can all be done using material which

 3     does not disclose the particular identity, the name of that individual?

 4             MR. SLADOJEVIC:  If I may, Lord Bonomy, we have submitted the

 5     request to make available the entire database with DNA profiles and the

 6     name of the tested people in order to have the database of the names in

 7     advance, so that when our experts sends you a specific request, for

 8     specific individual, 300 of them, the parties are certain that the

 9     maximum fairness in [Overlapping speakers], but we come to the point.

10             JUDGE BONOMY:  Well, okay.

11             MR. SLADOJEVIC:  I am sorry.  We note that the same can be

12     accomplished if the database is presented only with profiles and some

13     unique markers, such as bar-codes without names, and that way the ICMP

14     will protect the information regarding the identity of the victims and

15     their relatives.  This is our understanding based on our expert

16     suggestions.

17             JUDGE BONOMY:  Mr. Nicholls will no doubt respond to that to say,

18     but that still doesn't mean that it can -- you can circumvent the consent

19     form because the consent form is a broader than simply the question of

20     identity.  But plainly the purpose of the consent form is to protect

21     either people's concern about identity.  But it should be easier, I

22     think, to deal with this issue in the light of this comment.  I wonder if

23     the ICMP themselves might not be prepared to take a bold decision about

24     the impact of the consent form in light of a request initially to have

25     material which would not disclose identity.

Page 126

 1             MR. NICHOLLS:  That may be, Your Honour, and we will consult with

 2     ICMP on that.  We are meeting with Dr. Kleiser later this week.  He is

 3     coming here.  We hope to meet with him this week and try to resolve all

 4     of these issues.

 5             In principle and I can't -- I'm not speaking for ICMP, if -- and

 6     I don't understand, I have to admit, the exact science of what is saying

 7     in the electropherograms, but if there is a way to disclose without

 8     identifying the person, I think that that may not be a problem.  The

 9     initial request was for everything, that is clearly -- would be contrary

10     to the consent forms.  And it may be me just not understanding, but what

11     I don't understand is why the initial selection of 100, 200, 300, can't

12     be made off the list and information which they have provided, then once

13     the consent is done --

14             JUDGE BONOMY:  You are both determined to get to a question I

15     haven't reached yet.  I'm quite -- I mean I find this very difficult just

16     as I think Mr. Karadzic seems to be more familiar with it than any of us,

17     but even he has a limited knowledge of the technology involved.

18             I just wanted to be clear, first of all, that one of the requests

19     being made does not involve disclosure of identity.  We seem to have

20     established that.  The next question is why cannot we find a way of

21     identifying the 300 without disclosing identities of everyone which

22     effectively seems to be what you've asked for to enable that to be done.

23             MR. SLADOJEVIC:  As I understand it, I don't pretend to

24     understand it completely, next to each name there is a probably some

25     unique marker bar-code, numbers, et cetera, if I'm not mistaken.  So if

Page 127

 1     the ICMP discloses these database without the names only with these

 2     bar-codes that we need to run the test of establishing whether there are

 3     repetition of these codes and establishing the exact number of the

 4     identified, that would also do it.

 5             JUDGE BONOMY:  Mr. Nicholls, that would suggest that at least let

 6     me explain my understanding of this, that because what is being sought

 7     here is indication of duplication, you really need everything, and what

 8     is being suggested is that there's a way of providing everything without

 9     disclosing identity.  Now, that would seem to wrap the two issues

10     together in the way Mr. Sladojevic was trying to do in his earlier

11     submission and you were, to some extent, too.  So now we now have a clear

12     understanding, I think, of, well, the layman's understanding of what

13     might be a way of providing sufficient material to make a selection

14     without divulging identity and meanwhile the exercise in obtaining

15     consent could be ongoing, and we might make some progress.

16             MR. NICHOLLS:  I think, Your Honour, just to speaking from what

17     you've said and what my friends have said, if there is a method where

18     it's logistically possible for them to provide information that avoids

19     any problem of duplication and doesn't identify persons or in any way

20     come close to a consent form, I don't see any problem with that.

21             JUDGE BONOMY:  But it would -- the purpose wouldn't be to avoid

22     any duplication it would be to establish whether there is any

23     duplication.

24             MR. NICHOLLS:  That's what I'm -- to avoid that problem is what I

25     meant to say, sorry.

Page 128

 1             JUDGE BONOMY:  Okay.  Now, if we have reached a suitable stage in

 2     the discussion where it appears we've resolved the issue of, as far as we

 3     can as lay people, of trying to identify a way of disclosing the

 4     necessary material without revealing identities then perhaps now is the

 5     time to hear your shortened version of what Dr. Dunjic has written.

 6             MS. UERTZ-RETZLAFF:  Can I ask one question.  To me it's not

 7     clear why there should be -- why you should -- how you should find

 8     duplications.  If you have a database where you have 5.000 people

 9     identified, 5.000 victims identified, how can there be a duplication?  If

10     you check random examples of 300 or whatever number, and you find these

11     procedures correct as they were applied, I can't really see how checking

12     the entire database to find duplication ever come up.

13             MR. SLADOJEVIC:  First of all, if we find that the procedure is

14     accurate then that will be probably our position, but the point is in

15     addition to establishing the identities of persons, I understand that by

16     the way of DNA analysis, you can also establish the time of that.  It was

17     suggested to us by our experts.  So in addition to identification and

18     making sure there are no duplications in the identification process, then

19     you can also establish the time of that which is also very important,

20     whether it happened in 1992, 1993, 1994, during Srebrenica incidents or

21     later.

22             JUDGE BONOMY:  I think there have also in the Tribunal been

23     examples of fairly closely related family members being identified by

24     DNA, but there being uncertainty about who was there, and yet there have

25     been duplicate and triplicate identifications of people.  It is a

Page 129

 1     possibility.  I'm not suggesting that that is necessarily the issue here.

 2     But for present purposes, I'm prepared to accept that the Defence experts

 3     have a genuine concern to establish something that would either reassure

 4     them or give them a basis for further investigation, and it seems to me

 5     that we are beginning to get to a point where can be done within

 6     realistic period of time and extent of time, which is the issue that

 7     obviously concerns those who provide the funds.

 8             MR. NICHOLLS:  May I ask one related question, Your Honour.

 9             JUDGE BONOMY:  Yes, Mr. Nicholls.

10             MR. NICHOLLS:  If Dr. Stojkovic had his 300 complete case files

11     now, how long would that take?  How long would he need to analyse those

12     300 and come up with his results?

13             MR. SLADOJEVIC:  I believe, if not mistaken, that we requested

14     450 hours or 300 hours for Mr. Stojkovic.  Do you remember that,

15     Ms. Reinhardt?

16             MS. REINHARDT:  Yes, you have requested 150 to 300 hours for

17     Mr. Stojkovic and about 800 hours for Mr. Dunjic at the time.

18             JUDGE BONOMY:  I don't propose to go anywhere on this particular

19     subject with OLAD because it's impossible to say anything definite about

20     the issue on the material that we've been discussing.  That may change

21     depending on what emerges from your initial exploration of the data,

22     which I hope you now get.  So let's lay that aside and let's move to the

23     Dunjic issue and can I hear from you the abbreviated form of the letter.

24             MR. SLADOJEVIC:  Unfortunately, Lord Bonomy, we already found

25     ourselves in the vicious circle because of the hours necessary but we

Page 130

 1     will come to that point.

 2             JUDGE BONOMY:  Yeah, but you are not going to be able to put

 3     forward a sustainable argument about hours unless you start doing some

 4     work and demonstrate something solid to justify not just exceptional but

 5     highly exceptional measure that you are requesting.

 6             MR. SLADOJEVIC:  May I read it in Serbian language so the

 7     interpreters can translate it.

 8             JUDGE BONOMY:  Yes.

 9             MR. SLADOJEVIC:  I'll try to be as short as possible.

10     [Interpretation] Over the last four years I have been working in

11     processing the various locations relating to Srebrenica in the case of

12     Vujadin Popovic and the rest.  We --

13             JUDGE BONOMY:  Mr. -- just hold on, you'll be able to read it

14     much more quickly if there's a copy you can give to the interpreter.  But

15     even then you have to allow for the problem of probably technical

16     language in there.  And please continue.

17             MR. SLADOJEVIC:  On the reports, the reports of the Prosecution

18     experts, Richard Wright; Fredy Peccerelli; Christopher Lawrence; Haglund,

19     William; John Clark; and Jose Pablo Baraybar represent collective reports

20     of the localities with comments of their findings.  In order to evaluate

21     and comments their reports, I had to look at the autopsy reports related

22     to the sites in question.  In that way, I analysed their collective

23     reports and their specific conclusions, primarily that of Haglund, Clark,

24     and Baraybar, and I made numerous objections or remarks.  And I indicated

25     the inconsistencies between the general conclusions and the autopsy

Page 131

 1     reports, especially in terms of the cause of death and the mechanism of

 2     injury, the localities of Sandici and Potocari and Vesinje [as

 3     interpreted] were processed by the local pathologist of the Federation of

 4     Bosnia and Herzegovina with the supervision of the ICTY.  In the analysis

 5     of their reports, I found numerous failings and inconsistencies between

 6     the findings and the conclusions on the cause of death.

 7             The reason for the inconsistency between the pathology reports

 8     and the concluded cause of death of the pathologists who did the

 9     autopsies and the main pathologists who made the collective report in

10     their expert reports, I also said that the reason for this is in the data

11     by Haglund on page 11 of his reports for task of June 15th, 1998.  The

12     autopsy of the victims began on the 31st of July, 1996, and lasted until

13     the 22nd of August, 1996.  The autopsies were carried out in temporary

14     morgues in the war damaged factory of -- textile factory in the outskirts

15     of Kalesija.  The autopsies were conducted under the supervision of Dr.

16     Robert Kirschner, the director of international forensic programme of the

17     organisation, Doctors for Human Rights.

18             In the establishment of their final conclusion on the cause and

19     matter of death, as well as in the editing of the final version of the

20     autopsy reports, the legal advisor of ICTY, Peter McCloskey, assisted a

21     summary of the pathological findings was written by Dr. Page Hudson

22     [phoen].  Last year, Dr. Dunjic presented to the Court, and Mr. McCloskey

23     objected quite dramatically to this.  The problem presented and noted by

24     Mr. Dunjic was that in the lists of the ICMP and the International Red

25     Cross persons as missing throughout that whole report in relation to

Page 132

 1     Srebrenica, names of persons are mentioned who were exhumed at specific

 2     locations and for whom there is evidence that they died before the 11th

 3     of July, 1995, and some of them substantially after the 1st of October,

 4     1995.  According to information from the cited documents, it arises that

 5     the victims of genocide in Srebrenica among those are also identified

 6     remains of individuals who disappeared in 1993, and those who disappeared

 7     after 30th of July, 1995.

 8             In the case file of the Prosecution of the cantonal court in

 9     Tuzla, it is stated that the cemetery or the grave of Blijcevac [phoen]

10     contained bodies that had nothing to do with the fall of Srebrenica.

11     Thirty-nine bodies were found there.  In relation to this, it is

12     important to analyse two documents, the first one is the report by

13     Mr. Janc, and the second one is a list, ERN 0663290, examples of

14     identified persons from the list of the Prosecution and the database of

15     the B & H Army only for cases of those killed and missing soldiers before

16     July 1995, which was given by Mr. Geoffrey Nice.  There is a correction

17     by the ICTY which is -- has to do --

18             THE INTERPRETER:  I am afraid we are finding it a little bit

19     difficult because you are not reading in order, so we cannot exactly --

20     and it's very fast.  Yes, but we need to know where you are reading from.

21             JUDGE BONOMY:  Can you assist by when you move, missing out

22     something, just indicate so that the interpreter can find the part.

23             MR. SLADOJEVIC:  I will do so.  Apologies to the interpreters

24     [Interpretation] We are now on page 3 paragraphs 2 and 3:

25             Dusan Janc, investigator of the Prosecution made a clarification

Page 133

 1     in order to correct identification that refers to Kravica and Branjevo as

 2     locations of executions and identified persons at those places of

 3     execution.  As far as the executions in Kravica, at the moment all

 4     identified persons a total of 1.319 cannot be linked with this place of

 5     execution.  The conclusion is based on different sources including expert

 6     report, documents, statement by witnesses and their testimony.

 7             And then on the same page under B:

 8             Examples of identified persons from the list of the Prosecution

 9     and the database of the B & H Army where a specific number of persons are

10     referred to for which the Army of the B & H and the command says were

11     killed in 1992, 1993, and 1994 as cases of members of the B & H Army who

12     were killed up to July 1995 and whose remains were found and identified

13     in various graves which are then referred to.

14             On page 4:

15             In the cited report and all the reports of the ICMP, the

16     International Red Cross and the institute for missing persons

17     investigated so far, different dates are given for death of the same

18     identified person.  Dr. Dunjic doesn't know how this was established.  In

19     the mentioned list, a large number of persons from the list of the B & H

20     Army, there are two different dates of death for a large number of

21     persons and they are very different.  This difference can and must be

22     established by looking at the autopsy reports and the forensic expert

23     reports.

24             The document provided by the command of the B & H Army also

25     contains these discrepancies, so the question is:  What is the exact date

Page 134

 1     of death and based on what information it is established?  It is possible

 2     to responds to this question only on the basis of forensic findings of

 3     the found remains, the state of the bodies, the decomposition of the

 4     bodies found, and the skeletal remains, and compare that with the

 5     documents and statements of other people.

 6             And as far as the Sandici and Potocari locations are concerned,

 7     it has been established that there is a different degree of

 8     putrification, changes, and skeletisation, partial or complete

 9     mummification in bodies, which indicates the conclusion that these are

10     cases of bodies buried at different times.  For all the above, I believe

11     that we need to insist on an analysis of specific locations, specifically

12     those from Eastern Bosnia.  The aim of the forensic analysis was to

13     compare the methodology of the autopsies after 2002, used by experts of

14     the ICTY, their findings, and also to carry out an analysis of the age of

15     the bodies and compare that with the age of the bodies on which the

16     Tribunal investigators worked until 2001.

17             The age of the bodies, the change, in an indirect way indicates

18     that certain mass graves were filled on several locations and not all

19     bodies from the mass graves are linked with the events in Srebrenica.

20     For this analysis we need to check their identification, the DNA

21     identification, because you can also establish the time of death by

22     looking at the lists of those identified.

23             The third thing that I am suggesting actually one of the

24     conclusion that I had in analysing previous locations that refers to the

25     mechanism of injury is that there is no in-depth analysis of the injuries

Page 135

 1     and possible manner of injury, and this is important because in the

 2     compiled reports of the experts of the Prosecution, a large number of

 3     bodies found indirectly indicate that they had been shot or that they

 4     were executed from the autopsy findings.  This is impossible to establish

 5     in the largest number of cases so that it can only be assumed how the

 6     persons died.

 7             This also offers ample opportunity for manipulation.  For a

 8     certain number of cases, from all localities, I have established that

 9     they could have been killed in direct fighting.  The injuries from

10     shells, projectiles of large calibre and of great force, PAMs, Zoljas,

11     and so on were numerous in various localities, and this can also be

12     checked from witness statements from many parts in various periods.

13             On page 7, Dr. Dunjic also says that:

14             There is a description of events of July 1995, the manner that

15     brigades of the BH Army were formed in Srebrenica, the participation of

16     witnesses in them, their breakthroughs through Republika Srpska army

17     formations, their capturing, as well as the description of the conflicts

18     and the death of a large number of people in this period.  A joint

19     conclusion which can be concluded from all of the above are following and

20     this can be very useful:  One, a lot of the victims were killed in direct

21     battles; two, the localities, the victims were killed in various

22     localities around Srebrenica; three, most men were members of the BH

23     Army; four, the wounding and killing was performed by various artillery

24     means.

25             THE INTERPRETER:  Could Mr. Sladojevic please slow down.  I'm

Page 136

 1     still at number 4.

 2             JUDGE BONOMY:  Could you go back to number four and just read a

 3     bit more slowly again, Mr. Sladojevic, please.

 4             MR. SLADOJEVIC:  I will did so.

 5             [Interpretation] Four, the wounding and killing was inflicted by

 6     various artillery pieces; five, some bodies of the victims had already

 7     been skeletonised in that period; six, women, children, and elderly were

 8     evacuated from Srebrenica before the conflict; seven, a certain number of

 9     BH Army soldiers was captured; eight, some captured individuals died in

10     camps as a result of previous wounding or famine; nine, some prisoners

11     were tied up and later questioned; and ten, many of the captured soldiers

12     were physically and psychologically abused.

13             The witness statements also offer a number of issue that can be

14     analysed, concluded based on the analysis of autopsy reports:  The time

15     of death, the manner of death, whether all the killings were -- all the

16     deaths were in the same location or not, which can also be determined on

17     the base of their wounding, among other things.  Whether among the

18     victims there were also those who had died in any manner before or after

19     the critical period between the 11th and 19th July, 1995, and in order to

20     answer all these questions, it is necessary to compare autopsy reports

21     and DNA analysis of all of the identified individuals from this area.

22             In the Popovic case, there were -- there is a list of folders

23     that were never analysed because not enough time was assigned for this,

24     and he insisted he needs additional time, and also information that could

25     be found in various other DVDs which were subsequently provided to him by

Page 137

 1     us.  And soon we will come to his opinion on page 8, paragraph -- the

 2     last paragraph.  Dr. Dunjic mentions that there are inconsistencies in

 3     the aggregate reports of these experts of the Prosecution, and that these

 4     inconsistencies can only be established on the basis of an analysis of

 5     the aggregate reports and autopsy reports on which they were founded.

 6     These inconsistencies were -- I point out in my expertise of the expert

 7     reports of the Prosecution, however, on the basis of the documents that

 8     we provided to him, I have pointed out some localities in Eastern Bosnia

 9     which were analysed by experts and commissions of the Federation of BH,

10     and we believe that this might be significant to re-analyse these because

11     from these documents we can see further inconsistencies in the findings

12     and the conclusions as to the cause of death.

13             In addition, the changes on the bodies that are mentioned in the

14     reports point to the different times of death and burying, and I felt

15     that the additional hour that is I would be -- that the hour that is I

16     was given for or granted to report this were insufficient and I would

17     need an additional 120 hours which would be a minimum in order to analyse

18     the autopsy reports and the exhumation reports and the following

19     documentation.  At the end of his letter, Dr. Dunjic also offers his own

20     opinion, which consists of several portions.  Under one, he discusses the

21     cause of death saying that the cause of death on decomposed bodies cannot

22     be established with certainty and it can be -- they can be understood

23     only very conditionally.  And all pathologists and even anthropologists

24     are decisive in their conclusions regarding the perimortem injuries and

25     the injuries that were -- that came about after their death.  Generally

Page 138

 1     speaking, in their joint reports there are two major issues.  First of

 2     all they all speak of in life changes, in manners that point to the fact

 3     that it is impossible to determine the cause of death on skeletonised

 4     bodies after their death.  All the experts, forensic experts, adopt the

 5     assumption, and I reiterate, the assumption that these injuries by

 6     fire-arms were inflicted during their life.  In their reports, all these

 7     experts say that this is a doctrine that is accepted, however this

 8     doctrine is not accepted by this profession.  However, in addition to

 9     these data and the data provided by Mr. Haglund, based on autopsy reports

10     of victims which started on 31st July and went on until August 22nd, he

11     said that all these deaths were inflicted in the area of Kalesija and he

12     also says that in doing these reports, and examinations, he was assisted

13     by a Prosecutor, Mr. McCloskey.  This is unacceptable as far as the

14     profession is concerned.

15             In addition, the injuries that were determined to have been done

16     by a blunt instrument and which are considered to have been inflicted

17     while the victim is alive, is not something that is taken as a position

18     on which to base their conclusion that such injuries were actually

19     inflicted after death.

20             It is impossible to determine whether such injuries were actually

21     inflicted during battle or in some other manner.

22             THE INTERPRETER:  Could Mr. Sladojevic please slow down a little

23     bit.

24             JUDGE BONOMY:  Mr. Sladojevic, another request to slow down,

25     please.

Page 139

 1             MR. SLADOJEVIC:  Sorry, I apologise.

 2             JUDGE BONOMY:  Where are we, can we go back to a suitable --

 3             THE INTERPRETER:  Pilica.

 4             MR. SLADOJEVIC:  [Interpretation] The additional injuries,

 5     gun-shot wounds to the heads of a number of victims, point to a

 6     conclusion that fire was opened from immediate or absolute vicinity.

 7     Such a conclusion does not comply with the forensic doctrine and autopsy

 8     reports because it is impossible to establish, among others, the sequence

 9     of the injuries in addition to the fact that these were decomposed

10     bodies.  And I consider that it would be very useful if the doctors who

11     performed the autopsies and prepared these aggregate reports used the

12     international classifications of injuries and wounds as mentioned below

13     and then I will skip this part, but he also says that:

14             I also consider that it is necessary, before the Court, to

15     determine the consequences under which the death was inflicted.  In order

16     to be of assistance to the Court, the doctors could determine precise and

17     complete reports and prepare precise and complete reports for every

18     individual and only then would it be possible to establish facts for a

19     group of individuals from a certain location either exhumed or on whom

20     the autopsy was performed.

21             This is precisely the reason why I insist that it is necessary to

22     examine each body and each body part to determine the entries.  In his

23     report, Dr. Lawrence among other things, says the following:  There were

24     many skull injuries, rib injuries, and hip injuries which were

25     deliberately inflicted after death in order to obscure the injuries to

Page 140

 1     those parts of the bodies which were inflicted while the victim was

 2     alive.  The intent is something that is to be determined by a Court in

 3     any legal system.  However, as an expert who provides a report, this

 4     person is not professionally -- is not professional enough to provide

 5     this kind of opinion and to discuss intent.

 6             Under item 14 of the same document it says that:

 7             In the case of six bodies, the cause of death was impossible to

 8     determine, and the conclusion was that they were probably -- they

 9     probably had perforating wounds of soft tissues which were inflicted by a

10     fire-arm.  However, it is impossible to determine that or see that

11     because there was loss of soft tissues due to decomposition changes.

12     This type of opinion is not based on the professional standards and it

13     can cause significant damage to the -- to the work that they produce.

14             There is not a single report, a single full report for one

15     particular locality that would encompass all the cases beginning with the

16     description of the location, the transport, the traces, exhumations,

17     photo documents, and identification.  Opinion number 3 relates to the

18     mechanism of injuries which was not established, and there was no

19     in-depth analysis of the injuries and the possible ways that they were

20     inflicted.  Based on the autopsy reports provided, it is impossible to

21     determine this in most of the cases so that we can only assume the manner

22     of death of the individuals.

23             In addition to shells and large calibre projectiles, and similar,

24     which can be found in numerous localities, it can be concluded with some

25     truthfulness that a large number of deaths, the autopsied bodies were

Page 141

 1     actually killed during combat in the period mentioned above.  The joint

 2     conclusions are the following:  First, a large number of the victims died

 3     in combat; number two, the victims around numerous locations were found

 4     around Srebrenica; three, most men were members of the BH Army; four,

 5     there were wounded by various and killed by various artillery assets;

 6     five, some bodies were already skeletonised in the period, in review;

 7     six, women, children, and elderly persons had been evacuated from

 8     Srebrenica before the conflict; seven, a certain number of BH Army

 9     soldiers were captured; eight, some individuals died in camps --

10             JUDGE BONOMY:  Sladojevic, it's repetition now, is there anything

11     else of substance to be added?

12             MR. SLADOJEVIC:  There is.  We are approaching the end.

13             [Interpretation] The fourth opinion put forth by Dr. Dunjic is

14     that:

15             Based on the review of the work of the pathologists, we can

16     conclude that in the case of Nova Kasaba, Ravnice, and Zeleni Jadar as

17     well as Pilica their work was very shoddy.  They did not produce autopsy

18     reports that could later be analysed and surveilled so that relevant

19     information could be drawn from them.  In their conclusions, they

20     proceeded from assumptions that all the injuries were inflicted

21     perimortem, which means during the life of the victim.

22             JUDGE BONOMY:  I've heard enough for today's purposes.  I'm

23     beginning to suspect that this might even be a way of reading some of the

24     Defence case into a document which is going to be made public and that's

25     not the purpose of today's hearing.  The meeting today is to look at ways

Page 142

 1     of resolving issues.  Now, you've advanced a number of arguments by

 2     Dr. Dunjic.  I'm not clear if he is the only person whose opinion is

 3     being expressed there, because at one stage you talked about joint

 4     conclusions.  Are we confine -- is this letter confined to his own

 5     opinion?

 6             MR. SLADOJEVIC:  This is only for his own [indiscernible].

 7             JUDGE BONOMY:  Now, is there any other specific additional

 8     argument to be made because you'll appreciate many of these points relate

 9     to evidence which is available whether you do a DNA analysis or a

10     postmortem analysis, and the post mortem analysis is perhaps an

11     additional confirmation; but there already is, according to him, evidence

12     to support the points that he is making without further expert

13     examination.  Now, is there any other point beyond that to be made.

14             MR. SLADOJEVIC:  I can only summarise the point Mr. Dunjic is

15     making which is that [Interpretation] This is page 15 now of the letter

16     and it is somewhere in the middle of the page where it begins:

17             However, from all the analysed cases, it's not possible to

18     establish the precise cause of death because of skeletonisation and

19     putrefaction, it's not possible to establish the time of death or the

20     mechanism of injury because the given descriptions in the autopsy

21     findings do not correspond to the collective report by Mr. Haglund which

22     he gave, especially to his comments and interpretation, Nova Kasaba and

23     Pilica.  Certain number of injuries at all the locations of Nova Kasaba,

24     Pilica, Zeleni Jadar and Ravnice indicates that it's possible that

25     individuals were injured in combat.  There were statements by witnesses

Page 143

 1     and in order to establish the cause of death of from other locations and

 2     based on 3.221 cases, I need to be allowed additional work time of 500

 3     hours.  Sincerely yours, Mr. Dunjic.

 4             [In English] Especially bearing in mind the Prosecution had 15

 5     years at its disposal to make the same conclusions.  Thank you.

 6             JUDGE BONOMY:  Now, your last point from the letter about the

 7     hours is obviously a crucial part of this.  In an earlier part of that

 8     letter there was reference to an additional 120 hours.  What is the

 9     relationship between these two figures?

10             MR. SLADOJEVIC:  The OLAD has authorised so far 120 additional

11     hours for our forensic expert, for the handwriting expert for

12     Mr. Stojkovic and for Mr. Dunjic.  And it was basically left up to us to

13     decide how we are going to allocate those hours and we decided that since

14     Dr. Dunjic is dealing with six OTP experts that he should take all 120

15     hours because the amount of material that he needs to go through is very

16     voluminous.  Whereas, since we are still in the process of obtaining

17     documents from the ICMP, there is not much that Dr. Stojkovic can do

18     until we received documents from the ICMP, so he can start his analysis

19     as well.  But the main problem is that Dr. Stojkovic will not be able to

20     start the analysis until he has been authorised additional hours to

21     perform the analysis that he needs to do.  And that's why we say we are

22     in the vicious circle.

23             JUDGE BONOMY:  Are lawyers the only professionals in the world

24     who work pro bono.

25             MR. SLADOJEVIC:  Sorry, do we need to comment on that?

Page 144

 1             JUDGE BONOMY:  Was that letter -- is that letter addressed to

 2     OLAD?

 3             MR. SLADOJEVIC:  That was written for the purpose of this meeting

 4     so that the Trial Chamber and the Prosecution and the OLAD gets the

 5     overall picture of the problem that we would like to analysis as well to

 6     do and to perform.  That is basically our duty.  But we would like also

 7     to hear from the OLAD because we simply fail to understand the -- it was

 8     suggested by the OLAD that we should do a certain kind of analysis and

 9     that we will be allowed later to perform a more detailed analysis, but we

10     fail to understand why don't we just resolve this matter while it's now

11     on the agenda?  We could resolve everything now and then there is no need

12     later to ask for additional hours for expertise, et cetera, because it's

13     already on the agenda.  We didn't want to do this analysis in the first

14     place.  It was the idea of the Prosecution.  We need to respond, and we

15     need to respond adequately and properly.  And we don't believe that OLAD

16     is in a position to know better what our expert needs to do.  And as I

17     said, Dr. Dunjic never suggested that he would examine the entirety of

18     the role information underlying the reports, but as you said four or five

19     months of full-time work or approximately two so many Euros, we are

20     trying to find a solution, but it's very hard when the Prosecution

21     tendered a very voluminous material that we need to go through.  There is

22     no reason that we should just run a superficial analysis and then only to

23     later run another analysis which would be thorough analysis.  I fail to

24     understand why don't we just resolve this issue now while it's being on

25     the agenda.

Page 145

 1             JUDGE BONOMY:  But do I correctly understand that what he has in

 2     mind is analysing every postmortem report.

 3             MR. SLADOJEVIC:  No, he doesn't, because that's physically not

 4     possible.  So he suggested that within those 120 hours currently

 5     authorised that he would analyse 30 to 40 per cent of the material

 6     disclosed randomly selected by him in order to come to certain

 7     conclusions.  But the main problem with the hours authorised is that our

 8     experts are not in a position to give us any opinion because in order to

 9     give us an opinion, they need to have additional necessary hours to

10     perform analysis.  Once they perform analysis they will come up with an

11     opinion.

12             JUDGE BONOMY:  I am sorry, I haven't understood that correctly.

13     You are saying that he suggested using 120 additional hours to review 30

14     to 40 per cent of the postmortem materials; is that --

15             MR. SLADOJEVIC:  That's been disclosed to us in the past month.

16             JUDGE BONOMY:  Yes.  Now, can I take it then that the 500 hours

17     was with a view to analysing every postmortem report?

18             MR. SLADOJEVIC:  I don't believe that he meant the entire raw

19     material database, but in relation to also to other -- basically to all

20     the grave sites in Eastern Bosnia.  That's what I understood.

21             JUDGE BONOMY:  Now, he still has these 120 hours in hand, does

22     he?  He hasn't used them yet.

23             MR. SLADOJEVIC:  He used around 30 hours because he needed to go

24     through the material in order to write this kind of a --

25             JUDGE BONOMY:  Was that not an earlier 30 hours --

Page 146

 1             MR. SLADOJEVIC:  No.

 2             JUDGE BONOMY:  Part of this 120.  But he is saying to you that he

 3     can carry out a review of 30 to 40 per cent on the 120 hour basis; is

 4     that --

 5             MR. SLADOJEVIC:  Yes, he will probably be able to produce an

 6     opinion by mid-September or towards the end of September.

 7             JUDGE BONOMY:  And that will be based on establishing or

 8     confirming some of the points he has made in that list of criticisms of

 9     the OTP material.

10             MR. SLADOJEVIC:  Yes indeed.  Yes, indeed.

11             JUDGE BONOMY:  Don't you think that's adequate for the purposes

12     of the preparing to deal with the Prosecution case?

13             MR. SLADOJEVIC:  I believe it's up to Dr. Karadzic to answer your

14     question.

15             JUDGE BONOMY:  You are quite right, it's not a question for you,

16     I agree.

17             MR. SLADOJEVIC:  Merely I can say that my understanding is that

18     we could -- maybe we could -- it is important to establish the causes, et

19     cetera, of that because in the end it is -- it directly relates to the

20     qualification of the crime committed -- allegedly crime commited in

21     Srebrenica, whether it was a genocide or war crime against war prisoners,

22     et cetera, but it's really up to Dr. Karadzic.

23             JUDGE BONOMY:  Dr. Karadzic.

24             MR. KARADZIC: [Interpretation] Your Lordship, with all due

25     respect to all present at this meeting I have the impression that Defence

Page 147

 1     cases do not bear the same weight and the conviction if as when something

 2     it missed from the Prosecution case, this is not done in a convincing

 3     way, that some allegations do not stand.  So I hear of the idea that we

 4     need to establish the complete accuracy of the Prosecution case and then

 5     our job in the Defence would be much easier.

 6             What we have here is a false picture where the number of

 7     illegally killed has been magnified or augmented by ten.  In Bosnia, now

 8     they are talking about 10.000 victims even 20.000 victims, so leaving

 9     aside the fact that any illegal death does not go to the credit of

10     anyone, and those persons should be held responsible before the law, and

11     this is up to us, not to our opponents.  But in order for this area to

12     have a future, for purposes of the future of Balkans and as whole and the

13     future of Europe, it is very importance to establish precisely what

14     happened.  And in the Defence case, this will not be possible if we fail

15     to look at this massive date which are going to be presented, and we have

16     to provide our counterevidence and convincing arguments in the face of

17     such a vast amount of detail that would be provided by the Prosecution.

18     Already we are in the position, and we can see that we will be in the

19     position to be able to present completely to the Chamber of how what has

20     been presented to it so far actually looks like in the light of what

21     actually happened.

22             JUDGE BONOMY:  You will find though that in the course of the

23     Prosecution case a realistic cross-examination is going to be selective.

24     It's going to prioritise, and its going to take examples of the type that

25     are set out in Dr. Dunjic's letter.  And its going to rely on the

Page 148

 1     inconsistency between other evidence about death of people and what is

 2     said in the reports and so on.  The cross-examination in the Prosecution

 3     case is not going to go through every one of these deaths and analyse it

 4     with each expert witness.

 5             So the issue for OLAD isn't quite the one that you are

 6     identifying at the moment.  Maybe by the end of the case the issue is the

 7     one that you've just identified, but at this stage it may not be.  And

 8     that is traditionally been the way that things have operate here, that

 9     there's been an allocation of expert hours to enable you to deal

10     adequately with the Prosecution case and then other allocation to deal

11     preparation of any report that is follow.  And obviously the success you

12     have with the Prosecution case may have a significant bearing on the

13     allocation of the hours, if you still seek additional hours at that

14     stage, for the provision of your final report for the presentation of

15     your own Defence case.

16             Now, I understand your anxiety about trying to do it all now, and

17     I understand that you may well have an argument that that is a more

18     efficient way of doing it, but the question is who is to determine that,

19     and I think in the first instance it's a matter for OLAD to assess and

20     decide whether the right way to deal with this is the traditional way or

21     whether you've said enough to justify and even further exceptional

22     arrangement.

23             You've presented a very full statement and account of the

24     position.  I think that letter should be translated as quickly as

25     possible by -- and I don't know who is going to undertake that offhand

Page 149

 1     but it should be done as quickly as possible and then communicated to

 2     OLAD along with whatever covering letter you wish to submit.  But I

 3     suggest, Dr. Karadzic, that you do give thought to whether non-compromise

 4     of any kind is the answer to this particular issue.  And whether

 5     Dr. Dunjic cannot do a perfectly adequate job for present purposes on the

 6     basis of the hours already allocated and the arguments that he has

 7     presented with an analysis of 30 to 40 per cent of the postmortem

 8     material.

 9             Anyway, that's a matter for the parties to think about.  Yes.

10             MR. KARADZIC: [Interpretation] I didn't understand that what I

11     was saying referred only to OLAD.  What I wanted to emphasise was that

12     Dunjic is working on the evidence of six Prosecution experts.  So he

13     needs to do that with his associates.  It's not possible for him to do

14     that.

15             On the other hand, what I wanted to say is that OLAD, well, I

16     believe that I am very cooperative out of respect for all the people

17     involved, and OLAD would need to be sensitive about the importance of the

18     whole case, and never mind equality of arms.  The six OTP experts had the

19     time and the hour that is they had, so we need to establish an adequate

20     proportion of time for the Defence experts for them to come out something

21     that will actually be a true opposition of arguments or confrontation of

22     arguments, not something that is just superficial.

23             JUDGE BONOMY:  They were, of course, doing a rather different job

24     from the one that arises now.  It's one of the features of this Tribunal

25     and some might be critical of it, that it is essentially adversarial in

Page 150

 1     nature.  However, experts truly doing the job that they are professional

 2     expertise is dedicated to are not protagonists of one side or the other,

 3     unless some attack -- unless some attack can be made on their

 4     impartiality as experts, then they can be viewed as independent

 5     professionals carrying out an exercise for which their own self-respect

 6     as professional experts is answerable.

 7             Now, there has been -- well, there have been and are experts who

 8     are engaged by the Prosecution.  They may be engaged in different ways,

 9     but the professionals we are talking about in the scientific arena are on

10     the face of it, of what we read, independent experts doing a job as part

11     of an international effort to investigate these events.  So it would be

12     wrong to look at every element of this as a adversarial presentation.

13     That is not to say the Prosecution might not tend to put their own

14     interpretation and gloss, the best one that they can perhaps present in

15     support of their case on the material, but when we are looking, as we are

16     at the moment, on the basic -- at the basic material itself, before I

17     would be prepared to view an expert as other than working impartially in

18     the interest of justice, I would have to see some basis for doing so.

19             So what I'm more concerned about in the light of all that's been

20     said today is the indication given by Professor Dunjic that he sees bases

21     for criticising the way in which the job has been done, the results that

22     have been achieved, and the interpretation of these results.  And he is

23     not suggesting that people have been doing this in a biased and partial

24     way.  He is suggesting that it's not perhaps the way it ought to have

25     been done and that he, as an expert, takes a different view.  Well,

Page 151

 1     that's legitimate position to be taken, even in your legal system, I

 2     think, where the expert would essentially be a court-engaged expert.  But

 3     there may be circumstances in which he can be challenged.  And that's the

 4     sort of area that, it seems to me, is in issue here.

 5             Now, that doesn't mean that you go back to square one and do the

 6     job completely again.  It means that you dip sample the work of the

 7     experts.  You demonstrate legitimate criticisms, then you try to justify

 8     on the basis of that, securing, if necessary, more hours to complete the

 9     job.  But it seems to me that OLAD's exceptional allocation in this case

10     has given you a pretty good basis for carrying out a fair assessment of a

11     large proportion of the postmortem material.

12             I can see circumstances in which that could lead to you

13     presenting an argument for yet more, but whether Dr. Dunjic needs to

14     insist on a complete analysis of all the material, I think it's

15     questionable.

16             Now, I am expressing only my own personal reaction here with a

17     view to encouraging you with OLAD to reach an agreement that will allow

18     you sufficient scope to deal with the 92 bis motion if you wish to say

19     any more on it, and to challenge -- prepare to challenge the Prosecution

20     case, on the understanding that his final report will be prepared on the

21     basis of a further allocation at the time of the Defence case.

22             MR. SLADOJEVIC:  If I may, we are very anxious that should we

23     fail in conducting a proper analysis of the OTP proposed or preferred

24     forensic expert evidence, that there is a possibility at least that the

25     Trial Chamber will accept the reports, and that we will not get the

Page 152

 1     opportunity to cross-examine the experts, and then it will have to deal

 2     with it later in our Defence case, which is completely different from our

 3     proposition that we are entitled to cross-examine or Dr. Karadzic.  And

 4     in order to do that, we have to convince the Trial Chamber that we are

 5     entitled to do so.  And in order to be able to convince the Trial Chamber

 6     that we are entitled to do so, we need to perform a thorough analysis and

 7     come up with strong arguments.

 8             JUDGE BONOMY:  You may find that there would be some value for

 9     the Chamber in you making a submission based on the letter which you've

10     read out today and selecting the appropriate elements that are

11     demonstrated in that, as long as you've got a material basis to support

12     what Dunjic is saying.  He is giving you conclusions without telling you

13     the precise source of his conclusions, at least in some instances.  And

14     it may be that you need to supplement what is in that as part of your

15     submission.  But that is obviously material which you can use to support

16     an argument that Dr. Karadzic should be entitled to cross-examine these

17     experts.

18             As I said earlier, I've abandoned hope of reaching agreement on

19     this area, and it would be silly, I think, to try to press that any

20     further.

21             Now, the Prosecution have been silent because we haven't really

22     given them a chance to say anything recently, but maybe there is nothing

23     to be added.

24             MS. UERTZ-RETZLAFF:  The only -- my only observation would be

25     having heard now what Dr. Dunjic is writing, you are actually already in

Page 153

 1     a position to make a response to the 92 bis evidence of some of the

 2     experts that he refers to, and I would say you have made the points that

 3     would actually lead to cross-examination.  So that's all I can say.  So

 4     he needs only 30 hours basically to solve the question that -- which is

 5     currently on the table.

 6             JUDGE BONOMY:  And just for the avoidance of any doubt, we've

 7     been talking about these 120 hours, but I think -- is that the additional

 8     allocation that applies to all three witnesses?

 9             MS. REINHARDT:  If I may just very quickly explain that.  We have

10     already on one hand we have doubled the pre-trial allotment to 300 hours

11     all together for all the experts that we are going to assign in the

12     pre-trial phase, which is more than the three.  For mainly in order to

13     prepare reports because that's what usually is done.  That's what we can

14     do under our remuneration scheme is to allocate hours for the production

15     of expert reports.  Usually we wouldn't even be in a position to allocate

16     money for the review of material for experts without the outcome of a

17     report afterwards.  So in this case, we have in addition to these 300

18     hours allocated another 120 hours for these three experts which also

19     included Lacroix at the time, but mainly Dunjic and Stojkovic to go

20     through the materials and basically come up with what is in this letter.

21     That was our understanding at the time that for now they just needed to

22     respond to the OTP motion and indicate whether cross-examination is

23     necessary in the point of view of the Defence or not.

24             And in our opinion, that was basically what we thought was the

25     purpose of these 120 hours.  That doesn't mean that if it comes out, as

Page 154

 1     already obviously did for Mr. Dunjic, that there needs to be further

 2     challenge of the OTP experts and that he might actually want to come up

 3     with a report, he obviously can use some of the 300 hour that are still

 4     in the pot, and as we have already talked with Mr. Robinson, I

 5     understand, we also offered the possibility to take hours from the

 6     allotment for the trial phase, which is, again, two times 150 hour, 150

 7     for OTP phase and 150 for the Defence phase to be able to pull that

 8     forward basically to the pre-trial phase.  If the argument the Defence is

 9     we don't want to wait until the Defence phase to come out with reports on

10     other own behalf but we want to do it all now, we offered the possibility

11     to do that, but I understand that that was actually not accepted by the

12     Defence team and they said they don't want to do this.

13             JUDGE BONOMY:  Well, that's something obviously that Dr. Karadzic

14     can think about again, but what is emerging from this is that you have

15     the best -- most of your more or less 100 hours on hand in this

16     particular area, but you've got three experts that that relates to.  If

17     you use them all on Dunjic, obviously you may suffer consequences in

18     relation to the others, but it doesn't sound as though you really do need

19     to use all of these hours on Dunjic.  I agree with you that Dunjic should

20     do more and do some analysis of a significant proportion of the

21     postmortem report toss back up the points he is making so that he is

22     presenting Dr. Karadzic with a report which will give him a sound basis

23     for cross-examining the Prosecution experts in the Prosecution phase of

24     the case.  But it may be that you are able to keep and reserve all that

25     may be available to you for the Defence phase because you may want to

Page 155

 1     work on presentation of a case using the lessons that are learned from

 2     the success or otherwise of the cross-examination.  That's a question of

 3     judgement.  If you don't want to do that, if you want to make use of all

 4     the hours now, then the offer is being made that some of these, at least,

 5     can be advanced to this stage and used at this stage of the case.  If you

 6     feel that would enable you then to make a better presentation in

 7     challenging the OTP and then in also presenting your Defence case, then

 8     that's a matter for your judgement.

 9             Mr. Karadzic.

10             MR. KARADZIC: [Interpretation] Your Lordship, before the

11     Prosecution case, my primary concern is that maybe because of an

12     insufficient number of hours that we are allocated, we will fail to be

13     persuasive enough before the Trial Chamber.  If that should happen, that

14     error is incorrigible later on because I cannot really claim that the

15     Trial Chamber has reached a decision without proper, without due

16     examination, if I fail to present sufficient evidence for them to make

17     another decision.

18             Now, further, we need to actually clarify and point out and

19     highlight the arguments that the Prosecution is offering.  So I need to

20     have a sufficient number of hours in order to actually persuade the

21     Trial Chamber to rule in my favour, to security my right to

22     cross-examination.

23             JUDGE BONOMY:  Well, I think we've exhausted this particular

24     subject.  As I indicated at the beginning, it's not for me to make

25     decisions on this, I can only try to facilitate agreement that's going to

Page 156

 1     enable everyone to have a fair opportunity to present their respective

 2     cases.

 3             MS. UERTZ-RETZLAFF:  Perhaps one point, we would appreciate if

 4     the decision on the 92 bis motion for the expert would be postponed to a

 5     later date until everything is ready, and I also can say that the

 6     Srebrenica part of the case will definitely not -- will definitely be at

 7     the end of the Prosecution case, so there's no need to have it all ready

 8     by the beginning of the trial.

 9             JUDGE BONOMY:  I'm not inclined to postpone the decision on this

10     at my own hand.  If it was left to me, I would want this decision made

11     fairly soon, partly for the reasons that Dr. Karadzic himself has

12     advanced, that it will be of assistance to know the position.  It's,

13     what, another two weeks before this response is due.  I think the

14     response should come in.  The Trial Chamber will be alerted to what

15     you've said and we'll consider whether the decision ought to be made

16     then.  I will write a brief note summarising this discussion so that

17     emphasis is placed on the most important parts of this discussion, and it

18     will then be for the Trial Chamber at the appropriate stage, which could

19     be in September, to make their decision.  If they decide to postpone it,

20     then whether they would notify you or simply wait until an appropriate

21     time, I don't know, and I don't think it really helps very much for there

22     to be this uncertainty.

23             MS. UERTZ-RETZLAFF:  I was actually only think being the DNA, not

24     about Dunjic, just the DNA, not the other experts.

25             JUDGE BONOMY:  No, no, I can see the value in relation to the DNA

Page 157

 1     expert.  Yes.

 2             Dr. Karadzic.

 3             MR. KARADZIC: [Interpretation] I owe an explanation here.  It is

 4     not our position that these experts should be questioned, that their

 5     expertise should be questioned, that they have deliberately misled

 6     anyone.  However, these are expert witnesses, and the expertise follow

 7     certain international standards and now we have two experts that should

 8     actually confront each other on the basis of these different scientific

 9     grounds.

10             Now, I do -- I am entitled to being a bit suspicious when an

11     expert testifies as an expert as a member of the Prosecution.  The more

12     so because -- and I'm especially entitled to being a little bit

13     suspicious of the portion of the work that was done by the Federation of

14     Bosnia-Herzegovina experts because this is really a conflict of interest

15     in their case.  So please, I just want to make myself very clear, we are

16     not in any way suggesting that the OTP experts are deliberately

17     misleading or presenting false information.  We just feel that in order

18     to establish a certain level of confidence, we must verify certain

19     things.

20             MS. UERTZ-RETZLAFF:  One more point, the letter of Dr. Dunjic was

21     actually very helpful, and we think we will not oppose cross-examination,

22     but we would have to see this letter and have a possibility to digest it

23     and consider it.  It would be very helpful if we had something also from

24     Dr. Stojkovic because he has already the 30 files with the raw material

25     for one grave.  If he could look at that and also give a preliminary

Page 158

 1     assessment and if he finds points to make that would definitely be very

 2     helpful, then we could even deal with this.

 3             MR. KARADZIC: [Interpretation] If I may.

 4             JUDGE BONOMY:  Yes.

 5             MR. KARADZIC: [Interpretation] Well, then I have a proposal.

 6     Let's simplify matters and speed up the whole proceeding.  I've noticed

 7     that in some other cases, and this is something that other Trial Chambers

 8     had resorted to, the procedure would be that a certain witness will be --

 9     that a certain witness report will be accepted in part as a credible

10     report, whereas other portions are not admitted as being insufficiently

11     credible.  I feel that in the event -- in my view, it would be far more

12     appropriate if there is any doubt as to an expert witness and the report

13     of an expert witness, I believe that we should eliminate the entire

14     report and the witness, and in this way we would probably eliminate some

15     of the experts right off.  Of course, I'm joking in part, but just in

16     part.

17             JUDGE BONOMY:  Just one comment on what you said earlier about

18     the work being done by the representatives of the Bosnia-Herzegovina

19     Federation, I think all of the expert work here has been independently

20     reviewed and presented by an international expert no doubt with a view to

21     ensuring that the appropriate standards have been met.  And you're quite

22     right to identify the principal bases, as I see it, for attacking the

23     expert evidence as the quality rather than the partiality of the work

24     that's been done.

25             Now, is there any other point on these expert matters that you,

Page 159

 1     Dr. Karadzic, wish to raise?

 2             MR. KARADZIC: [Interpretation] For now, no.  I would just like to

 3     address you off record with one thing, but I would like to do that at the

 4     end.

 5             MR. SLADOJEVIC:  If I may, make one thing on behalf of

 6     Dr. Karadzic.  In relation to the ICMP materials, now, we went through

 7     the testimony suggested, testimony of Dr. Parsons, as suggested by the

 8     OTP to find out about the mandate and organisation of the ICMP.  So we

 9     went also to the website.  We couldn't find many thing that we thought we

10     would find, but anyway in them, ICMP -- Dr. Parsons claims the ICMP

11     establishes neither the year nor the manner and time of the death, and

12     which can be established according to our experts through the DNA

13     analysis.  So in addition to establishing the identities and the number

14     of victims, we would also like to conduct independent analysis in order

15     to try too establish through the DNA analysis the time of death which is

16     also very important.

17             Unfortunately I've only one memorandum that we prepared for this

18     meeting in relation to the ICMP work, but I can send it by e-mail, if you

19     want.  I think it's more useful if you give it the Trial Chamber at this

20     stage, as well in relation to the Serbian letters, Dr. Dunjic's.

21             JUDGE BONOMY:  Ms. Retzlaff, Mr. Nicholls, anything else?

22             MS. UERTZ-RETZLAFF:  We will be meeting Dr. Kleiser, and we will

23     ask him whether this is possible and whether they can do something in

24     addition to time of death and cause of death.

25             MR. NICHOLLS:  I would just add, Your Honour, just to be clear,

Page 160

 1     the Defence now has their own communication with Dr. Kleiser and are

 2     working directly with ICMP, but we will continue to do anything we can to

 3     help.

 4             JUDGE BONOMY:  Well, I hope this meeting has assisted parties in

 5     identifying ways of speeding up this whole exercise in the interests of

 6     ensuring that injustice is avoided.  I'm very grateful to you,

 7     Dr. Karadzic, for arranging for Mr. Sladojevic to attend this meeting.

 8     I've found that helpful.  Although you, yourself, have a measure of

 9     knowledge of the subject, those who are actually carrying out the

10     day-to-day dealings with the OTP usually have some information that would

11     be supplementary to you, so that was of great assistance to this meeting.

12     And if there's anything else discovered on the subject by the time of the

13     Status Conference on Thursday then that can be raised, but I suspect

14     there's nothing more to be said on this for the moment, and I just wish

15     you well in trying to make progress in reviewing the expert evidence.

16     Thank you very much.

17             Sorry, yes.

18             MR. KARADZIC: [Interpretation] I wanted to tell you something

19     that has nothing to do directly with the case, but it was not decent to

20     say that in a public session -- has to do with Saint Andrew.  I'm a

21     Knight of Saint Andrew.  He is also a protector of Russia, and it was not

22     perhaps quite appropriate to say that and he is from Russia, I have a

23     medal of Saint Andrews, and this is something that is perhaps not

24     appropriate to state in a public session.

25             JUDGE BONOMY:  I take it you are referring to the fact that he is

Page 161

 1     my patron saint.  I doubt if it will work well in a Defence case though.

 2     Thank you.  Until Thursday, thank you.

 3                           --- Whereupon the Rule 65 ter Conference adjourned

 4                           at 1.11 p.m.