1 Tuesday, 27 September 2011
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.17 p.m.
5 JUDGE KWON: Good afternoon, everyone. There are a few matters
6 I wish to deal with before we continue to hear the witness's evidence.
7 That's why we started in open session.
8 The first matter relates to the motion for a videolink testimony.
9 Mr. Tieger, we haven't received any indication that additional
10 information in relation to Mr. Asim Egrlic's testimony via videolink has
11 been filed or will be soon filed. So could you give us an update as to
12 where we stand in this regard?
13 MR. TIEGER: Yes, Mr. President. At this point, we do not
14 anticipate the submission of further documentation related to the motion
15 for videolink. Obviously we would keep the Court apprised if that would
16 change. That would mean that the Prosecution would need to move forward
17 on scheduling the witness for his appearance in the normal fashion.
18 JUDGE KWON: Thank you.
19 For the next matter, may the Chamber move into private session
21 [Private session]
11 Page 19445 redacted. Private session.
7 [Open session]
8 JUDGE KWON: Next, the Chamber will issue an oral ruling
9 regarding the admissibility of 65 ter 40199, a video from 1995 that the
10 Prosecution sought to tender through Witness KDZ-379 on 15 September
11 2011. The accused's legal adviser objects to the admission of those
12 excerpts which contain the statements of Miroslav Stanic and date from
13 April 1995, arguing that these portions of the interview contained extra
14 contemporaneous statements of a third party. The Defence argues that in
15 May 2010, the Chamber had denied the admission into evidence of a video
16 interview that the accused had shown to a witness in very similar
17 circumstances. The Prosecution submits in response, inter alia, that the
18 video is admissible because it is relevant and probative and because the
19 Prosecution demonstrated a nexus between the witness, KDZ-379, and the
20 video proposed for admission.
21 Having reviewed the submissions, the Chamber is of the view that
22 the video is admissible pursuant to Rule 89(C). As the Prosecution
23 correctly notes, the video is relevant and probative with regard to the
24 circumstances surrounding the takeover of Foca municipality in April
25 1992. The witness also confirmed multiple parts of the video including
1 the identity of the interviewee, Miroslav Stanic and commented on some of
2 the statements Stanic made in the video about SDS policies in Foca
3 municipalities. The Chamber also notes that the Defence arguments
4 regarding the May 2010 video evidence is in error. On 6 May 2010, the
5 Chamber by majority, myself dissenting, admitted the video clips
6 containing interviews of third party that the accused had tendered for
7 admission into evidence as Exhibits D130 and D133.
8 The Chamber therefore orders that 65 ter 40199 be admitted into
9 evidence and assigned an exhibit number.
10 That can be done right now.
11 THE REGISTRAR: Your Honour, that would be Exhibit P3476.
12 JUDGE KWON: Thank you.
13 Unless there are matters to be dealt with in open session, we
14 will go into closed session and continue the previous evidence.
15 [Trial Chamber and registrar confer]
16 JUDGE KWON: Mr. Tieger, I'm being asked by the court deputy as
17 to when we will be hearing the evidence of Mr. Dzafic. Are we in a
18 position to estimate, albeit roughly?
19 MR. TIEGER: Yes, Mr. President, my understanding is that based
20 upon consultations with the Registry and assessments of the witness
21 schedule, that it's everyone's assessment at this point that he would --
22 the videolink would take place on Friday. I believe that's a shared
23 view. That's the basis upon which we have been operating, at least from
24 this morning forward, and I have no reason to think that's likely to
25 change based on the best estimates we have of the current witness
2 JUDGE KWON: What is the estimated time for your
3 examination-in-chief, if you could remind me of it?
4 MR. TIEGER: One half hour, Mr. President.
5 JUDGE KWON: And one hour, I was told. And for the
7 MR. ROBINSON: I don't believe we received a time yet from the
8 Chamber for cross-examination.
9 JUDGE KWON: We will come back to the issue in the meantime.
10 In the meantime let us go -- yes.
11 MR. TIEGER: Just double-checked that, Mr. President and your
12 understanding was correct. It is currently listed at one hour. That's
13 right. I'm happy to double-check to see if that's changed.
14 JUDGE KWON: Thank you. We will come back to that scheduling
15 issue later on. We will go into closed session.
16 [Closed session]
11 Pages 19449-19519 redacted. Closed session.
5 [Open session]
6 THE REGISTRAR: We are now in open session, Your Honours.
7 JUDGE KWON: Yes, Mr. Tieger, I wonder whether you can address us
8 in relation to the motion I referred to.
9 MR. TIEGER: Yes, Mr. President, I believe I can. I will bear in
10 mind that we are in open session. Should be there any need - I don't
11 anticipate one at the moment - to go into private session --
12 JUDGE KWON: Absolutely.
13 MR. TIEGER: -- I will ask to do so. Otherwise, I may be a
14 little elliptical in making some reference but I trust the Court will let
15 me know if it's not understood.
16 The Prosecution's position, Mr. President, is there is no basis,
17 no need, for the remedy sought by the Defence, and, indeed, to do so
18 would work a quite unfair hardship on the witness and on the trial
19 schedule generally. Let me address the issue of need first. I'm holding
20 in my hand the transcript in question. It's not 122 pages, it's 105
21 pages. It looks like this, this kind of printing. The length of time
22 that it would take to review this transcript is relatively minimal. I
23 have no idea why no member of the Defence team attempted to do so in the
24 six days that have passed between the receipt of this document and now.
25 Or whether some member of the Defence team did and it has not been noted
1 in the motion but a relatively short period of time would be required to
2 do so.
3 Which brings me to the second point. There is still more than
4 sufficient time for review of the transcript and any related materials
5 before the testimony of the witness.
6 Third point would simply be that there is no basis for the
7 motion, the suggestion that the relationship between the position of the
8 witness whose materials have recently been disclosed and the witness
9 about to testify gives rise to some particular need to do so is purely
10 speculative. Indeed, on the face of those two different positions
11 I would suggest that the contrary and my quick look at the transcript
12 indeed revealed at least one or two references that confirmed that
13 impression. But the main point is that it is entirely speculative at the
14 moment and there is no basis for the assertion that detailed analysis is
16 Fourth, the proposed remedy would result in considerable and
17 specific hardship to this witness, whose necessary mode of travel to
18 The Hague renders it a particular hardship to go back and forth. A far
19 more appropriate remedy that the Court has cited previously is to recall
20 the witness if and when the accused could ever establish sufficient cause
21 for the need to do so.
22 And finally I would note with respect to the request for
23 additional time for interview, of course we've always left that up to
24 witnesses and that remains the case. However, there is no reason why the
25 accused could not have been prepared at the time of the interview that's
1 already taken place to ask questions based on the material that he had,
2 indeed, already received.
3 So with respect to all aspects of the motion, Mr. President, we
4 submit that it is groundless and should be denied.
5 JUDGE KWON: Thank you, Mr. Tieger. Do you wish to reply,
6 Mr. Robinson?
7 MR. ROBINSON: Yes, Mr. President, very briefly. It's true we
8 received the notification of the identity of witness KDZ-532 last
9 Wednesday evening, on 21 September. But there was no information that
10 made any connection with that witness to the one that was being called
11 this week, and so we received this as delayed disclosure evidence, we put
12 it aside -- we actually assigned it to someone to start reviewing and had
13 no idea that this would be, until actually -- until this morning,
14 I didn't learn of any connection between these two witnesses. And once
15 we did see the connection, then it seemed as if we would need time to
16 review this material, which is 371 pages, before cross-examining
17 Witness KDZ-492. It's difficult in public session to be a little more
18 specific so if you don't mind if we could go into private session.
19 JUDGE KWON: Yes.
20 [Private session]
11 Page 19523 redacted. Private session.
12 [Open session]
13 JUDGE KWON: The Chamber will consider the matter and issue the
14 ruling in due course. The hearing is now adjourned. We will resume
15 tomorrow in the afternoon.
16 --- Whereupon the hearing adjourned at 7.01 p.m.,
17 to be reconvened on Wednesday, the 28th day of
18 September, 2011, at 2.15 p.m.