1 Monday, 3 March 2014
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 4.01 p.m.
5 JUDGE KWON: Good afternoon, everyone. It's been a while and I
6 think I already missed the sittings.
7 Yes, Mr. Robinson.
8 MR. ROBINSON: Yes, thank you, Mr. President. I'd like to
9 introduce Melani Vranjes, from Iceland. She's been in this court before
10 but as an intern, but now she's working as a legal assistant for our
11 team, so thank you.
12 JUDGE KWON: Yes. Although we are not hearing the evidence today
13 as planned, there are several matters I'd like to deal with.
14 First, I would like to put on the record the Chamber instructed
15 its legal staff last Friday to communicate to the parties through e-mail
16 its decision to grant the Prosecution's request for extension of word
17 limit for its rebuttal and reopening motion.
18 Next, the Chamber will now issue a couple of oral rulings.
19 Yes, I seem to have a problem with my personal LiveNote.
20 First, Chamber will rule on various exhibit related matters
21 pending from its recent MFI decisions.
22 The Chamber recalls that in its decision of
23 25th of January, 2014, it stayed its decision on the admission of MFI
24 D4203 pending the accused uploading a revised English translation.
25 Second, in its decision of 26th of February, 2014, the Chamber stayed its
1 decision on the admission of MNA D2225, pending the accused making
2 necessary redactions and uploading its English translation. On the
3 28th of February, 2014, the accused notified the Chamber via e-mail that
4 he had completed the instructed redactions and uploads for both exhibits.
5 The Chamber has reviewed the revised documents, along with the relevant
6 transcripts, and is satisfied that D4203 and D2225 can now be admitted
7 into evidence.
8 As a separate matter, the Chamber notes that Exhibit P2913 was
9 originally admitted through Witness Dorothea Hanson, only for a limited
10 purpose as a source document. However, it was later discussed with
11 Defence Witness Cedo Zelenovic during his cross-examination on the
12 24th of June, 2013, and based on his testimony on its content, the
13 Chamber considers that P2913 can now be admitted in full.
14 Next, the Chamber refers to the accused's 86th Motion for Finding
15 of Disclosure Violation and for Remedial Measures filed on the
16 3rd of February, 2014, and the Prosecution's response to the motion filed
17 on the 10th of February, 2014. The motion alleges a violation of Rule 68
18 of the Rules for the late disclosure of the closed session testimony of a
19 protected witness in the Stanisic and Zupljanin case and a proof noting
20 pertaining to that witness from December 2011.
21 The Prosecution submits that it was not aware that the accused
22 had not been provided with this confidential transcript from the
23 Stanisic and Zupljanin case, but acknowledges that the material referred
24 to in the motion should, in any event, have been disclosed as soon as
25 practicable pursuant to Rule 68.
1 The Chamber, by majority, Judge Kwon dissenting, finds that the
2 Prosecution violated Rule 68 by failing to disclose the transcript and
3 proofing note as soon as practicable. However, the Chamber finds that
4 the accused was not prejudiced by this disclosure violation given that:
5 One, similar material was already in the accused possession; two, the
6 relevant material was disclosed to the accused well before the witness --
7 before the witness testified in this case; and three, the transcript in
8 question was admitted pursuant to Rule 92 ter in this case.
9 In the absence of prejudice to the accused, there is no basis to
10 grant the remedies sought by the accused.
11 On my part, I refer to my partially dissenting opinion in the
12 Chamber's decision on the accused's 37th to 42nd disclosure violation
13 motions and declined to make a finding of violation in the absence of
14 prejudice to the accused.
15 Now, I will deal with some inquiries as to several matters.
16 First, the Chamber wishes to address an issue stemming from the
17 accused's "Motion to admit testimony of Dusan Djenadija pursuant to
18 Rule 92 bis," "Motion to admit statement pursuant to Rule 92 bis:
19 Bozidar Popovic," and "Motion to admit testimony of Pedrag Banovic," all
20 filed on the 11th of February, 2014, and from the "Motion to admit
21 testimony of Aleksa Sekanic pursuant to Rule 92 bis" filed on the
22 3rd of March, 2014.
23 It is unclear from the motions, or the appended declarations,
24 when the Defence first contacted these three witnesses, obtained their
25 statements, and learned of their unwillingness to testify. On the
1 3rd of March, 2014, the accused also filed the "Motion to admit testimony
2 of Marko Deuric pursuant to Rule 92 bis." It is also unclear from this
3 motion whether the statement dated 22nd of February, 2014, was taken
4 during the Defence's first contact with this witness. The Chamber would
5 therefore ask the accused to file a written submission addressing this
6 question no later than the 7th of March, 2014.
7 Now, the Chamber is seized of the Prosecution motion for
8 extension of word limit for final briefs.
9 So I wonder whether Defence has any observation on this issue?
10 MR. ROBINSON: Yes, Mr. President. We don't have any objection
11 to the Prosecution's motion. We would ask that we be afforded the same
12 word limit. And we note that connected to that issue in some way is the
13 length of time in which the parties would have to file their closing
14 brief, and we disagree with the Prosecution's request and have filed our
15 own submission asking for a significantly greater time.
16 And I just would like to observe that the two issues of the word
17 count, the word limit, and the amount of time are very different in
18 the -- in its operation to the parties. The Prosecution benefits by a
19 lot of words because they have the duty and burden of laying out their
20 case and so the -- it's to their advantage to have as many words as
22 On the other hand, the Defence, with its limited resources, needs
23 as much time as possible in order to prepare its brief, and we don't have
24 the kind of resources that the Prosecution has to be able to do it within
25 the short time-period that they have proposed.
1 So we feel that it would be the fairest thing if the
2 Trial Chamber would accommodate both parties by allowing the
3 Prosecution's suggested word limit and allowing our suggested dead-line
4 for the filing of the closing brief. Thank you.
5 JUDGE KWON: We'll come to the dead-line for the final brief
6 soon. Do you have any observation as to the format the Prosecution is
7 suggesting, the main text and the use of annex? I think that issue was
8 dealt with during the course of pre-trial conference or something like
9 that? But I'll hear from Mr. Robinson first.
10 MR. ROBINSON: Yes, we did have some issues regarding whether the
11 word limit applies to annexes at the beginning of the case in the
12 pre-trial conference stage, but we don't have any problem with how the
13 Prosecution wants to divide whatever word limit that is given, but we
14 think that the word limit ought to be a global one. We may not choose to
15 have annexes and just simply won't have it all in one text, so we don't
16 think it really makes any difference how the party chooses to use the
17 words that are allocated to it.
18 JUDGE KWON: According to our practice direction, it is provided
19 that an appendix will not contain legal or factual arguments. So would
20 you like to make any observation, Ms. Uertz-Retzlaff or Mr. Tieger? Why
21 do we need to have a final brief that separate the factual description in
22 both part, in the main text and the annex as well?
23 MR. TIEGER: Well, first of all, Mr. President, I've -- as noted
24 in our submission, the Court's quite correct. The annexes, I understand,
25 were originally envisioned as an adjunct that would not count against the
1 word limit and would be limited in certain -- would be quite limited in
2 scope and in purpose.
3 Over time, as I believe the Chamber is aware, annexes have been
4 provided with final trial briefs that have been incorporated into the
5 word limit because of the nature of the annex and because they were found
6 to be of assistance to the Chamber, and I -- if I recall correctly the
7 Court's reference was to the consideration of that issue in the early
8 phase of the case and the determination that all could be embraced by the
9 global word limit as Mr. Robinson indicated.
10 Our submission and our description to the Court was by way of
11 transparency to try to assist the Court in understanding how we arrived
12 at our figure. In that sense, of course, as Mr. Robinson noted, if the
13 parties chose to allocate the total number of words provided in a
14 slightly different way, that presumably wouldn't make a great deal of
15 difference. What we were trying to indicate was the very specific and
16 concrete assessment that we had made about the utility of our anticipated
17 final brief and where we would focus our attention.
18 It's very clear to us that the more conventional form of annexes
19 where no argumentation whatsoever is permitted, in a case of this scope,
20 would not be anywhere near as useful to the Chamber as what we believe we
21 could provide with a more flexible annex but one we therefore considered
22 should count against the word limit. So that was our purpose in dividing
23 it in that fashion.
24 It may be true, as Mr. Robinson noted, that the Defence would
25 find greater use in relying more heavily on a narrative and discount the
1 number of words to be devoted to the annexes. Our assessment was that a
2 very concrete focus and analysis on the evidence and analysis of the
3 evidence would be of the greatest utility and that's what we tried to
4 indicate by way of our submission.
5 JUDGE KWON: So what I want you to be clear as to the number of
6 words you would need at the end of the day. So your submission is that
7 you would need a word limit of 375.000 words in total?
8 MR. TIEGER: That's correct, Mr. President.
9 [Trial Chamber confers]
10 JUDGE KWON: The Chamber will come back to this issue later on or
11 maybe issue a ruling in due course.
12 But going back to the issue of the dead-line, Mr. Tieger, by your
13 submission you are opposing to the Defence request for a year? That's
15 MR. TIEGER: Yes, correct.
16 JUDGE KWON: Can I ask you how the Prosecution comes to the
17 conclusion of 17th of September, 2014, for that dead-line? How is that
18 calculation based on?
19 So at this moment we are not sure as to the end date for the
20 evidence stage, how extensive the rebuttal would be at all, whether the
21 Defence will have any rejoinder, so how did you reach that date?
22 MR. TIEGER: Well, the -- I think the Court has anticipated my
23 response to some extent by noting that uncertainty. We did, in fact, try
24 to project a reasonable end date to the conclusion of all the evidence
25 and then work a certain number of months from there. So if the Court is
1 suggesting that if the conclusion of the case was not until, let's say,
2 the end of August, our projection and our request would be quite
3 inappropriately founded.
4 So we had assessed the projected end of the case in the area of
5 the end of April or so, and then we worked forward from there. So I --
6 in our assessment, I should add, was the most conservative possible one
7 we could make in terms of all those factors, both the projected end of
8 the case and the amount of time that would be reasonable for completing
9 the final brief thereafter. That's -- and I would also underscore that,
10 of course, this is not a precise science. We did our best to make an
11 assessment based on the -- the most relevant factors we can consider in
12 the experiences of those who had been involved in similar efforts in the
13 past. But, of course, it is not science. It's a bit of an art. And
14 that was the most -- that was the conservative projection we came to.
15 JUDGE KWON: Thank you.
16 Do you like to add anything, Mr. Robinson?
17 MR. ROBINSON: No thank you, Mr. President.
18 JUDGE KWON: And we can expect, can't we, to receive the -- your
19 motion for any rebuttal and reopening by tomorrow?
20 MR. TIEGER: Yes, Mr. President.
21 JUDGE KWON: Can we expect the Defence to file its response in an
22 expedited way, for example, by -- in a week's time after receiving that
24 MR. ROBINSON: I don't think so, Mr. President, because I think
25 it will be necessary to review disclosure materials in order to be able
1 to access the factors that go towards rebuttal. And without knowing the
2 volume, which is based on the material that was indicated in the word
3 limit's extension, I think it would not be practical for us to do that
4 within one week.
5 JUDGE KWON: Very well. Very well.
6 Then shall we discuss about the forthcoming witness, witness from
8 Your motion for subpoena was filed publicly, wasn't it? Yes.
9 MR. ROBINSON: Yes, Mr. President.
10 JUDGE KWON: What's the basis on which you are arguing that
11 the -- Mr. Karadzic has made all reasonable efforts to obtain the
12 voluntary co-operation of that witness?
13 MR. ROBINSON: Well, you could see from the -- from the motion
14 that for more than six months we have been corresponding with the
15 government of Croatia telling them that we will need their witness and
16 had their assurance, in principle, that he would testify, but on the two
17 dates on which we scheduled the testimony, failed to appear. And the
18 last correspondence we had from them, since its confidential I won't go
19 into the exact wording of it, but didn't provide a very convincing reason
20 for -- or even much indication that the date had been taken very
22 So we're putting it to the Chamber that we've done everything
23 possible we could do to get the voluntary co-operation within a
24 reasonable time of the Croatian authorities to have this witness before
25 the Chamber. If you want to give them more time and have us issue yet
1 another notice, we're happy to do that. But given that you had ordered
2 us to file all motions by today, we thought we should take the most
3 aggressive approach to closing our case.
4 JUDGE KWON: Yes, Mr. Tieger.
5 Yes, Ms. Uertz-Retzlaff.
6 MS. UERTZ-RETZLAFF: Your Honour, the Prosecution usually
7 abstains from getting involved and takes no position on subpoena motions,
8 and we will do it also this time. But I would like to mention that the
9 Croatian authorities have themselves now proposed a date until -- on the
10 date they want to appear, and as this date is actually earlier than the
11 date the Defence proposes, I do not really see a need. It's, to me, not
12 really logical to file this now.
13 But as I said, I will not take a position.
14 JUDGE KWON: That's an observation, fair enough. But I wanted to
15 ask the Prosecution whether we need this testimony at all.
16 So we -- I don't see Ms. Edgerton, but you, I think you're
17 capable of dealing with it. Yes, Ms. Uertz-Retzlaff.
18 MS. UERTZ-RETZLAFF: Your Honours, given the fact that the
19 databases used by the Croatian are kind of differently organised, we
20 always have taken the position that we need some clarification and some
21 checking from the respective intercept witness.
22 However, the witness does not have to appear here in court to do
23 that. All we would need is a spreadsheet in which the findings of the
24 checks by this intercept witness would be found, and I can actually give
25 you an example: We have admitted already in court P04780 which has
1 exactly such a chart. So if such a chart would be provided but --
2 JUDGE KWON: Just a second. Is it a public document or
3 confidential? If it is public, why don't we upload it to take a look.
4 MS. UERTZ-RETZLAFF: I think it is public but I am not
5 100 per cent sure right now.
6 JUDGE KWON: Yes. Let's not broadcast, just in case. P4780.
7 THE REGISTRAR: Yes.
8 MS. UERTZ-RETZLAFF: It is such a chart that we have actually
9 tendered when the witness testified, and it contains all the information
10 that the witness checked and clarified and we were all satisfied with the
11 authenticity after that chart was provided, and it could be done in that
12 same way here.
13 JUDGE KWON: And which exercise could be done outside the
14 courtroom in co-operation of all the parties involved?
15 MS. UERTZ-RETZLAFF: Actually, this exercise has to be done
16 outside of the courtroom because the witness has to basically look at the
17 documentation he has available, and that's why, yeah, why it can be done
18 in a written way. And as you can see, the questions: He makes comments
19 on the summary, whether it is a summary, whether it is an intercept,
20 typed intercept, he makes certain comments on things that he observed,
21 and that's exactly what is needed to establish authenticity.
22 If you want more details, I would have to need to go into
23 private session because that's matters that were discussed in private
24 session with the witness when he explained his database.
25 JUDGE KWON: There may be an issue as to whether Defence could
1 get the same co-operation the Prosecution would have got with the
2 government, but except that, do you have any observation to make,
3 Mr. Robinson?
4 MR. ROBINSON: We would welcome that, Mr. President, if the
5 Prosecution is satisfied to greet the authenticity. When we receive this
6 information, we'll do everything we can to obtain that.
7 JUDGE KWON: That is something the Chamber has no reason not to
8 welcome it.
9 But, Ms. Uertz-Retzlaff, you agree to that?
10 MS. UERTZ-RETZLAFF: Yes, Your Honour.
11 JUDGE KWON: Very well. If the parties could endeavour to do
12 that as soon as practicable.
13 MR. ROBINSON: Yes, we'll get right on that.
14 JUDGE KWON: Thank you.
15 I think I have exhausted all the items that I have prepared, but
16 I wonder whether there is anything to raise.
17 Yes, Ms. Uertz-Retzlaff.
18 MS. UERTZ-RETZLAFF: Yes, we are just wondering about which kind
19 of co-operation is required from us? Because it's the Defence who made a
20 request to the Croatian authorities and it should now be acted upon.
21 MR. ROBINSON: Yes, Mr. President, we'll send a letter to the
22 embassy with the chart and with our documents listed in the blank parts
23 of the chart for them to fill in. We'll request that they do that. Ask
24 them if they could give us a projected date upon which they could
25 complete it, if they're willing to do that. And then we'll report to
1 everyone as soon as we hear something.
2 JUDGE KWON: Then I could take it that you would withdraw the
3 motion for subpoena?
4 MR. ROBINSON: Yes.
5 JUDGE KWON: Thank you.
6 Yes, Mr. Karadzic, do you have something to raise?
7 THE ACCUSED: Nothing, your Excellency. Just to say good
9 JUDGE KWON: Yes, Mr. Tieger, do you have anything to raise?
10 MR. TIEGER: No, Mr. President, nothing further.
11 [Trial Chamber confers]
12 JUDGE KWON: Very well. The hearing is adjourned.
13 --- Whereupon the hearing adjourned at 4.31 p.m.
14 sine die