Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12751

1 Thursday, 20 January, 2000

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.39 a.m.

6 THE REGISTRAR: Good morning, Your Honours.

7 Case number IT-95-14/2-T, the Prosecutor versus Dario

8 Kordic and Mario Cerkez.

9 JUDGE MAY: Mr. Nice, I'm sorry to keep you

10 all waiting. There were various administrative matters

11 which we had to discuss.

12 One of the problems of this Tribunal is the

13 amount of administration, which might be done by other

14 bodies in a national jurisdiction, which has to be done

15 by the Tribunal.

16 Yes. We have an agenda, which I hope

17 everybody else has, and what I propose was to go

18 through the agenda, since we have it, and then to deal

19 with any other matters, or deal with any other matters

20 as we go through, unless anybody else wants to make an

21 alternative submission.

22 MR. NICE: I think the agenda is extremely

23 helpful. If we're in open session, may it be prudent

24 for us not to refer to witnesses by names, for fear

25 that they may seek or obtain -- seek and obtain

Page 12752

1 protective measures, but we can always avoid using the

2 names because we can use the numbers of the rows in

3 your agenda.

4 JUDGE MAY: Very well.

5 MR. NICE: Perhaps I can observe, while we're

6 getting ready, that I shan't be here after the break if

7 the hearing goes beyond the break, and therefore

8 anything that needs my particular attention, as opposed

9 to that of one of my colleagues well able to deal with

10 anything, then it should be raised before the break.

11 JUDGE MAY: Well, I hope we'll be finished

12 well before the break.

13 Now, the first items are those which appear

14 at 1 to 3. Mr. Nice.

15 MR. NICE: 1 and 4 are the two witnesses

16 currently to be dealt with by an argument known as the

17 "dead and unwilling". It is possible that there will

18 be one additional witness whose circumstances are

19 slightly different but who will also fall to be dealt

20 with by that same argument.

21 We have suggested from the beginning that the

22 argument on "dead and unwilling" is best postponed to

23 the end or towards the end of the trial so that the

24 Chamber may know not what other evidence is expected

25 but what other evidence has been adduced. That remains

Page 12753

1 our submission, so therefore items 1, 4, and possibly

2 this other witness, should be had in mind -- they can't

3 really be timetabled -- had in mind for later

4 determination.

5 Item 2 is a witness who seeks, really, the

6 ear of the Court in relation to whether he should give

7 evidence.

8 JUDGE MAY: Well, I must say, and I'm

9 speaking entirely for myself, we haven't discussed that

10 at all. And it may be others may take a different

11 view, but speaking for myself, I'm very concerned about

12 the idea of a witness coming before the tribunal of

13 fact and giving evidence, in effect, even if the

14 evidence is limited to certain matters, in the absence

15 of the Defence and the accused, who will never know --

16 may never know what the witness has said, and there is

17 also the perception of a tribunal of fact hearing a

18 witness in the absence of one of the parties. That

19 seems to me to be a serious matter.

20 MR. NICE: I quite understand your concern.

21 There seems to me, at first sight, two ways in which

22 such a witness might be dealt with. One is the way

23 that Your Honour has effectively identified in

24 expressing those concerns.

25 The other, for a witness who will be

Page 12754

1 physically responsive to requests to attend, is this:

2 He can attend. We can seek a subpoena to be issued

3 against him, and if that subpoena is granted, he can

4 apply to have the subpoena set aside. Now, if he makes

5 that application here in court, presumably initially in

6 closed session and with all the parties present, if

7 he's prepared to come into court with the other parties

8 present, then he could identify, maybe in general

9 terms, his concerns, and the matter could be taken

10 forward from there.

11 But although I quite understand the concerns

12 of the Chamber about any hearing that is ex parte with

13 a witness to fact, of course I understand that,

14 nevertheless witnesses who -- and this is the only one

15 who fall into this particular category -- are entitled

16 to have their concerns dealt with in an appropriate

17 way, it may ultimately be that there is no other body

18 but the Trial Chamber to deal with those concerns by

19 whatever method they decide.

20 So what will happen --

21 JUDGE BENNOUNA: [Interpretation] Mr. Nice,

22 concerning point 2, if I understand you correctly, you

23 are telling us that this is a witness, if I understand

24 you well or, rather, what you said in English, who

25 would like to come ex parte before the Chamber to

Page 12755

1 address the Chamber regarding the conditions of his

2 testimony, whether he should testify or not. If this

3 is to hear a witness on the conditions of his testimony

4 personally, that has been done elsewhere in other cases

5 and I am not opposed to it. And I'm speaking in my

6 personal name. If we're talking about the testimony

7 itself, that is another matter.

8 So there are two things that we need to

9 distinguish between. If the witness is going to tell

10 us his concerns regarding his testimony, that is one

11 thing, and quite another thing if he is to testify ex

12 parte, and in this respect I support what my colleague

13 Judge May has just said.

14 JUDGE MAY: Is there any reason why these

15 matters can't be put into writing and, if necessary,

16 they can be put in an ex parte document to the Chamber,

17 and it will then be a matter for the Chamber to deal

18 with.

19 MR. NICE: That may well be possible. He's

20 coming back, in any event, I think, in a couple of

21 weeks' time, and if the written form is more likely to

22 be helpful, then I'll deal with it in that way, at

23 least in the first instance.

24 JUDGE MAY: Well, that would seem to be the

25 simplest way to deal with it, an ex parte document to

Page 12756

1 be sent to the Chamber. The Chamber may then rule upon

2 it. If it's necessary to disclose it, it will be, or

3 there will be argument upon the point. If not, then

4 the Chamber can deal with it in the normal way of ex

5 parte motions.

6 MR. NICE: Very well. But just to reassure

7 the Court and, indeed, my learned friends, whatever is

8 said ex parte will not be on the subject of his

9 evidence but only on the subject of his concerns.

10 JUDGE MAY: Yes. Very well.

11 MR. NICE: That leaves number 3 of the

12 questions you asked me.

13 [Trial Chamber confers]

14 MR. NICE: Number 3. Yes, the request for

15 protective measures stands. I believe it's now been

16 filed, and he's due to attend next week.

17 JUDGE MAY: Very well. I think we're on to

18 5.

19 MR. NICE: All binders, I think, have now

20 gone out, and we await a response.

21 JUDGE MAY: Yes. When were they sent out,

22 can you tell me?

23 MR. NICE: The final one on the international

24 armed conflict, last week.

25 JUDGE MAY: Well, how are the Defence placed

Page 12757

1 in regard to that?

2 Mr. Sayers, when can you reasonably expect to

3 respond?

4 MR. SAYERS: Mr. President, let me make sure

5 that I understand what we're talking about. As I

6 understand it, we have received one binder for Zepce,

7 one binder for Zenica --

8 JUDGE MAY: No, these, as I understand it,

9 are purely concerned with an international armed

10 conflict.

11 MR. SAYERS: With respect to the

12 international armed conflict, there are, as I

13 previously informed the Chamber, many, many hundreds of

14 documents, in fact, I believe in the range of about a

15 thousand. It takes some time to look at those. Could

16 we perhaps ask the Trial Chamber for January the 31st

17 to give a written response?

18 JUDGE MAY: Yes. If we can put that into an

19 order, we will.

20 Mr. Kovacic.

21 MR. KOVACIC: Your Honours, I don't want to

22 be irresponsible and promise that I can do it in that

23 time, and actually I don't think that we can do it. We

24 have received those documents, as the other desk said,

25 the last bunch was received on or about 12 January, and

Page 12758

1 at about 15 December last year, we received the first

2 package. I'm still working on reviewing the first

3 package because it's -- I really don't know what the

4 exact number of pages is, but I can show you in size,

5 it is this big of a pile, about 30 or 40 centimetres.

6 We are working on it but the reality is that we

7 received it in a very late phase of the proceedings,

8 and I think that we are also entitled to some

9 reasonable time to process those documents.

10 JUDGE MAY: How long are you asking for,

11 Mr. Kovacic?

12 MR. KOVACIC: Well, I would ask for a term to

13 at least the 15th or 20th of February.

14 JUDGE MAY: The difficulty about that is that

15 we are now coming towards the end of the Prosecution

16 case, and they may have to call additional witnesses if

17 the ruling is against them.

18 [Trial Chamber confers]

19 MR. KOVACIC: Your Honour, if I just -- I'm

20 sorry, I'm interrupting.

21 THE INTERPRETER: Microphone, please, Your

22 Honour.

23 JUDGE MAY: We have in mind the 15th of

24 February.

25 MR. KOVACIC: I think I can do it, but, Your

Page 12759

1 Honour, I know it's not really polite to ask now

2 because it should be dealt with directly, but if we

3 would -- and I never asked the Prosecution for that --

4 if we can get that material in an electronic form, I

5 mean, at least the index which was forwarded with the

6 documents, it could speed up our work, if that is no

7 problem.

8 JUDGE MAY: Very well.

9 MR. NICE: That is not a problem. That can

10 be done.

11 JUDGE MAY: Well, we'll say the 15th of

12 February for that information from the Defence.

13 The next item, item 6, I see there is an

14 order already that the Defence are to respond by the

15 25th of January. Once that's done, we can determine

16 when argument, if any, should be heard.

17 Number 7, what is the state?

18 MR. NICE: Sorry. The position on the tape

19 is that the tape itself and its transcript, that is,

20 the whole tape as opposed to the single passage that

21 was served some considerable time ago, the whole tape

22 and its transcript is in the process of final review so

23 that the accurate transcript can be provided, and I

24 imagine it's a day or days away from provision.

25 The witnesses who deal with the circumstances

Page 12760

1 in which the tape were prepared, one was served, I

2 think, either yesterday or the day before and the other

3 one is due for service immediately, having gone through

4 the process. Those statements will then fall for

5 consideration by my learned friends whether they

6 challenge them or not. If they don't challenge them,

7 then they can be read or the tape's production can

8 otherwise be admitted. If they do challenge them, then

9 those two witnesses will have to be called.

10 JUDGE MAY: So that we can timetable this in

11 a proper way, is there any reason why we shouldn't

12 order that the tapes be served by tomorrow?

13 MR. NICE: I think the tapes have been served

14 already, maybe only the extract at the moment. The

15 whole tape, yes, I'm quite -- I can't see any

16 particular reason not to -- the one tape, as it is, the

17 one long tape, I don't see any reason why it shouldn't

18 be served tomorrow, and I very much hope that we will

19 have the transcript reviewed and available for service

20 either tomorrow or almost immediately thereafter.

21 JUDGE MAY: We'll say that the tape to be

22 served tomorrow; transcript, Monday.

23 Turning to the Defence, how long do you

24 anticipate that you would require before you can

25 respond to that?

Page 12761

1 MR. STEIN: I would say five days thereafter,

2 Your Honour. There is a legal issue, assuming that the

3 tapes are in order. There are 13 other intercepts

4 which have not been included which, based on what I

5 have seen, will be included, presumptively from what

6 I've heard. But regardless of that, you have the issue

7 of the manner in which this evidence was seized and

8 comes into court which will create a legal issue.

9 We'll be prepared to argue that within five days.

10 JUDGE MAY: So the Defence to respond to

11 admissibility within five days.

12 MR. STEIN: That's fine.

13 JUDGE MAY: We ought then to be thinking in

14 terms of resolving the issue the following week when I

15 think we are sitting, the week of the 31st. Give us

16 some idea, how long would you anticipate argument about

17 something like that to be, an hour?

18 MR. STEIN: Half an hour to 45 minutes.

19 JUDGE MAY: Half an hour to 45 minutes.

20 Thank you very much. We'll make sure that's set aside

21 for that week.

22 Perhaps, Mr. Nice, you could add that into

23 your calculations for the week.

24 MR. NICE: Certainly.

25 JUDGE MAY: There may be other matters.

Page 12762

1 Number 9.

2 MR. NICE: The Chamber's had our note on

3 researches we've made following the last time this was

4 discussed and what we've been able to find out about

5 statements admitted in Kupreskic and in one other

6 case.

7 The Chamber will recall that in, I think,

8 Kupreskic, statements were stamped by a court official

9 as to the authenticity to the signature, it not being

10 clear to us whether that was a standard stamp that

11 exists in every court and that is available for use in

12 exactly this type of process, we never having heard of

13 it before and, indeed, it never having been raised by

14 the Defence who are more knowledgable on this than us

15 before.

16 This week we have an investigator in the

17 field seeing if this very process can be replicated for

18 our case, I think probably with a witness whose

19 statement may not be particularly contentious or falls

20 outside those who may be contentious affidavit

21 witnesses. Nevertheless, we are trying to replicate it

22 this week and I'll know next week what success we

23 have.

24 Then if that process is available to us, it

25 will fall for consideration whether this --

Page 12763

1 THE INTERPRETER: Could you slow down,

2 Mr. Nice, please.

3 MR. NICE: I'm very sorry. It will then fall

4 for consideration whether that sort of statement could

5 qualify as an affidavit. Even if it could, the

6 question will arise whether the Defence are going to

7 take points under 94 ter which, of course, sets out a

8 particular regime for the introduction of affidavits

9 that may well be impossible of performance in this

10 case. But, nevertheless, we are doing what we can to

11 see if this process is available to us in the former

12 Yugoslavia.

13 JUDGE MAY: Very well. Provided that matter

14 is in hand and can be expedited.

15 MR. NICE: I'm reminded that point 8 -- we

16 perhaps skipped point 8 but --

17 JUDGE MAY: I thought it was connected with

18 7.

19 MR. NICE: It's connected with 7 but it's, of

20 course, a general point, a question of whether you can

21 have part of the testimony of a witness, in this case a

22 defendant in another case, admitted without the whole

23 of the transcript going in and the general problem of

24 whether you can put in a transcript in these

25 circumstances without, as it were, adopting it in its

Page 12764

1 totality for its truth.

2 JUDGE MAY: Well, that can conveniently be

3 argued with the questions of admissibility of the

4 tape.

5 MR. NICE: Certainly. I'm happy to do that

6 then.

7 JUDGE BENNOUNA: [Interpretation] Mr. Stein,

8 before responding regarding this point, I should like

9 you to give us your opinion regarding the question of

10 the admissibility of statements, either affidavit

11 statements or not, in the case of statements that are

12 being used simply to corroborate testimony that has

13 already been given in court. Because in our point of

14 view, if there is no challenge, if something is not

15 contested, if it is not being challenged, if we have

16 already heard testimony and we simply need to

17 corroborate things that have already been said without

18 being contested, formally speaking, could not that be

19 regulated in this way by statements? I apologise for

20 interrupting. Of course, you can also respond on the

21 other matters. Thank you.

22 MR. STEIN: Thank you, Your Honour. I

23 thought you might be asking me that exact question, so

24 the answer to the question is, we would like to see on

25 a case-by-case basis the specifics. There are

Page 12765

1 certainly individual statements/affidavits/some form

2 which may not be in compliance with Rule 94 but which

3 nevertheless, given the narrowness, the corroborative

4 nature, the reason for them being merely to

5 authenticate a document, that we would as a matter of

6 courtesy, common sense, civility, say, even though it

7 doesn't comply with 94 in a technical sense, we're

8 prepared to agree. So the short answer is, yes, there

9 are many, and I can see that. As to the more specific

10 and more far-ranging, that would be a different

11 situation.

12 If I've answered that, I would like to move

13 on to the Blaskic issue which, of course, Mr. Nice has,

14 indeed, set out the framework.

15 It may well be our position -- it may well be

16 our position that we would want all of Blaskic's

17 testimony admitted. The problem is we don't know what

18 all of his testimony is. Some of it was given in

19 closed session. The Prosecution, of course, has the

20 benefit of knowing the entire length, breadth, and

21 subjects covered by Colonel now General Blaskic in his

22 testimony. If we could have the entire --

23 THE INTERPRETER: Will you slow down,

24 Mr. Stein, please.

25 MR. STEIN: I thought I was getting better,

Page 12766

1 but I slip.

2 If we could have the entire transcript at our

3 disposal, if the Court could so ask the Blaskic Trial

4 Chamber and if we could be supplied with that which we

5 do not have, then we would make a judgement whether our

6 position was that it all can come in, and then we can

7 all have our various parts of it. Otherwise, I'm

8 afraid we are left with the anomalous situation of the

9 proponent of the testimony cherry-picking, taking some

10 things he likes and other things he doesn't like that

11 he says he wants in in various ways, shapes, and forms,

12 either in the binders or other kinds of things.

13 And, of course, you have the anomalous

14 situation of the Prosecution, on the one hand,

15 challenging General Blaskic's testimony, in whole or in

16 part, in one proceeding and yet accepting it, in whole

17 or in part, in another proceeding, and then ultimately

18 you may get to the situation of the Blaskic Chamber

19 rejecting, again in whole or in part, the testimony,

20 and this Chamber being asked to rely, again in whole or

21 in part, on his testimony.

22 Those are issues that I think we need to air,

23 but I don't think we're in a position to air them until

24 we see the entire world of what's out there, in his

25 words.

Page 12767

1 JUDGE MAY: It's a simpler course, is it not,

2 this: to see what the application is, to see what it

3 is asked that we admit, and at that stage to make

4 rulings, if we can, or to ask for further material, if

5 need be? But to try at this stage, I think, to make

6 rulings isn't going to assist.

7 MR. STEIN: That's certainly the logic of it,

8 although I think Mr. Nice and I have the benefit of

9 foresight that the Court does not, in that we know, in

10 some of the dossiers, for instance, and in other

11 communications, the kinds of things that Mr. Nice wants

12 to have in. But Your Honour is right. I would much

13 rather deal in the concrete than in the abstract.

14 JUDGE MAY: Yes. Thank you.

15 Unless there are any other matters on that

16 page, going on to the second page of the agenda, the

17 village dossiers or binders. Just looking at the

18 position as far as the Chamber is concerned, we have

19 had, of course, Tulica decided; Stupni Do and Vares, we

20 have had; and Zenica and Busovaca, we certainly have.

21 Zepce, my memory doesn't assist. I wonder if the legal

22 officer can help me.

23 [Trial Chamber confers]

24 JUDGE MAY: Mr. Nice, can you assist us as to

25 that? This is described as Busovaca and Zepce. It's

Page 12768

1 not my recollection that they are together.

2 MR. NICE: No, I think you've had Zepce and

3 it's been provided separately. Yes, Mr. Scott confirms

4 that.

5 JUDGE MAY: It's separate; right?

6 MR. NICE: Yes, it's a separate binder and

7 it's been provided separately.

8 JUDGE MAY: Very well. Vitez, Kiseljak, Novi

9 Travnik --

10 MR. NICE: Yet to be provided.

11 JUDGE MAY: -- still to come. I must say my

12 own recollection is not seeing Zepce, but we can look

13 into that. That's one of the things perhaps we could

14 check.

15 MR. NICE: Yes.

16 JUDGE MAY: When is it proposed that we would

17 have the last four or three?

18 MR. NICE: Can you give me one minute? We

19 discussed this last night, and I'm not entirely -- my

20 memory has let me down. I'll just find out.

21 Ten days from today, I hope, for all of

22 them. It is a very labour-intensive task, but I think

23 ten days from today.

24 JUDGE MAY: The 31st of January, then. What

25 we need to do, in this context, is to timetable, I

Page 12769

1 think, a hearing about that.

2 MR. NICE: Indeed. The resolution of the

3 crime base or the evidence is important to the overall

4 time scale of the trial, and it's clear, from one

5 response that we've received already, that there is

6 going to be, I think, a root-and-branch objection to

7 any witness statement. And accordingly the Chamber is

8 indeed right to say that the matter should be

9 timetabled, and it seems to us that it would be prudent

10 or sensible to have them timetabled all on the same

11 occasion, really, rather than try and deal with them

12 piecemeal.

13 JUDGE MAY: Yes.

14 MR. NICE: Assuming they are provided in ten

15 days, then time for consideration would suggest that

16 they certainly couldn't be argued until probably the

17 beginning of the week of February the 14th.

18 JUDGE MAY: Well, that would seem to be

19 sensible.

20 MR. NICE: And I think that should give us

21 time to -- I hope that will give us time, in what's

22 left of the trial, to call up such witnesses as may be

23 required.

24 JUDGE MAY: Well, perhaps it would be

25 sensible to identify a time.

Page 12770

1 There are general principles here, and I

2 don't think we need necessarily to go through every

3 item in every binder, and I invite you to look at the

4 Tulica decision as a guide as to what we're likely to

5 find. And with that in mind, I hope we can deal with

6 the matter fairly expeditiously, in an hour or so.

7 MR. NICE: Certainly. And where we've said

8 we would intend to call, say, two witnesses per

9 location, it may always be that the witnesses have

10 already come or that the topics have already been

11 covered, and there is always, of course, the prospect

12 of relying on transcripts in other cases, subject to

13 any objection. So, yes.

14 JUDGE MAY: Would it be sensible to timetable

15 the argument for the 14th of February and allow an hour

16 for it?

17 MR. NICE: Yes. Thank you very much.

18 Just before we move on, if we are going to,

19 in fact Your Honour passed over item 10 on the first

20 sheet, and the position there is that all exhibits will

21 be provided, I think, by either this weekend or the end

22 of next week. By the end of next week, although the

23 vast majority have already been provided. Mr. Scott is

24 continuing the process of review with Mr. Lopez-Terres

25 and Ms. Somers. So they will all be provided by the

Page 12771

1 end of next week, the vast majority having already been

2 provided to the Defence.

3 JUDGE MAY: When you say they've been

4 provided, are these all new exhibits or are they old

5 exhibits to form a new binder?

6 MR. NICE: There's probably a combination of

7 documents that were provided in the original core

8 bundle, documents that may have been provided in

9 general circumstances at earlier stages, and some new

10 documents, yes.

11 JUDGE MAY: So they are to be provided by the

12 28th of January. Yes.

13 Can the Defence assist us, please?

14 MR. STEIN: It would be helpful to us if,

15 using their electronic database, we know what they

16 think is still outstanding. We've already met and

17 discussed some things that we agree to and some that we

18 don't. Because of the "Z" numbering system that

19 Mr. Nice persuaded the Court to use, we're always at

20 somewhat of a loss as to where we are; not a total

21 loss, but it's an imperfect system until the end. So

22 if we could have a little help from our opposition, we

23 would appreciate it, specifically identifying that

24 which is still at issue.

25 MR. NICE: I'm sure if Mr. Stein contacts

Page 12772

1 Mr. Scott directly, such co-operation as it's possible

2 for us to give will be given, because it's in

3 everybody's interests that these documents are

4 marshalled and decisions about them are made as swiftly

5 as possible.

6 JUDGE MAY: I think I have in mind to say

7 formally that the Defence respond within 14 days. It

8 may be that it's possible to deal with this matter by

9 discussion between counsel. I would hope it would be.

10 MR. STEIN: Fourteen days of what, Sir, today

11 or --

12 JUDGE MAY: Of the 28th of January.

13 MR. STEIN: Very good, Sir.

14 JUDGE MAY: By "respond," I mean to indicate

15 what is admitted and what isn't.

16 [Trial Chamber confers]

17 JUDGE MAY: I'll just ask the legal officer

18 something, please.

19 [Trial Chamber confers]

20 JUDGE MAY: Yes. We note number 12. I don't

21 think it's necessary to go into that again.

22 Numbers 13 and 14, and I note that on the

23 26th of November it was thought there were about 20

24 witnesses, 30 sessions, six weeks, end of the first

25 week of March 2000. Now, unless there is a change in

Page 12773

1 that, that seems to be an acceptable programme.

2 MR. NICE: Yes. I think there may be a

3 change, but I hope not very dramatic one. By my

4 calculation of listed witnesses, that is, witnesses

5 already notified, there are about 20 outstanding.

6 There may be one or two deletions to come and there may

7 be one or two non-attendances. And by our present

8 timetable, which we know changes on a daily basis, but

9 nevertheless, by our present timetable, those witnesses

10 would, indeed, be concluded by the week of the 1st of

11 March, coming into February the 28th. But that doesn't

12 take account of any witnesses who may have to be called

13 because of the need to establish, by live evidence,

14 village binder material, and the Chamber will be alive

15 to the fact that there are already indicated one or two

16 additional witnesses of whom we've only recently had

17 knowledge; for example, Mr. Beese, whose statement has

18 been served, is a witness I wish to call, and obviously

19 if there's going to be opposition to that, that

20 argument ought to be dealt with sooner than later. The

21 argument won't take very long, if there's any argument

22 at all, and I would respectfully suggest that we deal

23 with the Beese matter once the Court is fully

24 constituted next week.

25 JUDGE MAY: Perhaps you could raise that at a

Page 12774

1 convenient and early time.

2 MR. NICE: Certainly. I'll mark Beese for

3 probably Tuesday, I would have thought, if we can fit

4 it in around General Merdan, and I don't know yet if

5 there is any objection to his evidence or on what

6 grounds.

7 Included within that 20 witnesses, there are,

8 of course, witnesses of the type -- of the man who is

9 going to produce the maps that the Chamber asked to be

10 produced, there's the witness who can produce the video

11 showing the overflight of the area, and there's another

12 witness, one of the investigators, who, as the Defence

13 have been notified, is preparing an analysis of some of

14 the documents dealing with the Viteska Brigade, so they

15 are not all witnesses of raw fact. Some of them fall

16 into a different and, I hope, shorter category.

17 I've got a note. Yes.

18 JUDGE MAY: Mr. Nice, I think since December

19 1998, we have been asking you how many witnesses you're

20 going to call and when your case is going to finish.

21 It is unusual to be in this position, to put it mildly,

22 11 months or so into the trial, where we still have not

23 got a definite answer.

24 MR. NICE: Well, Your Honour, as to that and

25 as to the time taken by evidence, I'm in the hands of

Page 12775

1 others. As to the witnesses I'm calling, I've already

2 given regular notices of the witnesses I'm calling and

3 set up, in detail, the process through which we've

4 gone.

5 As to the witnesses required for the crime

6 base in the villages, I am entirely in the hands of the

7 response of the Defence, and I have taken every step to

8 abbreviate that evidence. That leaves simply

9 outstanding one or two witnesses who I may seek to add,

10 and I've made it plain from the beginning that that is

11 a reality in a case like this, and indeed the Chamber

12 knows something already of the circumstances in which

13 we come to hear late of material that may be of

14 particular value to the chamber.

15 So of course I can't give a closing date for

16 the trial. No one ever can. My best calculation is

17 that the listed witnesses will take us to the end of

18 February, beginning of March, on the present

19 timetable. I interject we have lost quite a lot of

20 days one way and another, since the last time I think I

21 was asked, through no fault of ours or anybody else's,

22 and as to other witnesses, if they, in fact, extend the

23 trial timetable, it won't be by very much.

24 JUDGE MAY: Let me make it plain --

25 MR. NICE: One other point.

Page 12776


2 MR. NICE: Your Honour asked me at an early

3 stage roughly how many witnesses I forecast, I forecast

4 about 100. Your Honour said at one stage that the 100

5 was not, in your own personal judgement, an

6 unreasonable number, and I calculate or Ms. Verhaag

7 calculates that, indeed, if things turn out in the way

8 I forecast, it will be about 100.

9 I should tell you that of the remaining

10 witnesses in the list of 20, there is certainly the

11 prospect, if not probability, of one or more of them

12 being deleted either by reasons of my judgement or

13 their non-availability.

14 JUDGE MAY: Yes, you're right about that.

15 You also at one stage, Mr. Nice, I recollect, said that

16 it would take a year. We expect it to take less. The

17 10th of March is the date that we expect you to finish

18 your case, and speaking for the two of us, we would

19 make an order to that effect. But we are only

20 constituted for two, so at the moment we can't make an

21 order. But would you have in mind that date and work

22 towards it, that's the first week of March.

23 MR. NICE: Certainly.

24 JUDGE BENNOUNA: You are not obliged,

25 Mr. Nice, to go until the 10th. You can finish even

Page 12777

1 before if you want. We will not oblige you to go up to

2 the 10th.

3 MR. NICE: I understand that, and I'm sure

4 Your Honour would understand that if it was down to me,

5 I would have finished this Prosecution case, for

6 matters of personal choice, a long time ago.

7 But the Chamber must have in mind, if I may

8 just cautiously but respectfully remind it, that we had

9 a witness this week, examination-in-chief, less than

10 one hour. I cannot predict and I cannot control how

11 long the evidence takes because the Chamber will

12 remember how long the cross-examination was, and I've

13 done everything I can to abbreviate this trial.

14 JUDGE MAY: I think there's one other matter

15 about the calendar, and that is that we said that the

16 Chamber would not be sitting in the week of the 13th to

17 the 17th. Should it be necessary for any chance to

18 hear any evidence or argument or anything of the sort

19 in that week, we shall change the sitting pattern and

20 sit that week. I hope that is an added incentive to

21 finish on the 10th.

22 MR. NICE: I'm not going to deal with it as

23 an added incentive. I'm away that week; I've made

24 private arrangements; I'm not going to be here. I very

25 respectfully must press on the Chamber that although

Page 12778

1 the desire, the understandable desire to bring this

2 case to a conclusion is in everyone's minds, since we

3 are only presenting evidence to assist the Chamber and

4 to present this case and are doing so conscientiously

5 and responsibly, we would very respectfully urge you

6 not to bring about artificial cut-off dates -- not

7 artificial, in any sense arbitrary cut-off dates or to

8 impose on us pressures that are not appropriate. I

9 will not be here that week.

10 JUDGE MAY: We've heard the point that I

11 made.

12 Yes.

13 MR. STEIN: May I inquire, sir, you mentioned

14 the week of the 14th as a week in which we're not

15 sitting. Perhaps my calendar is not correct. I

16 thought we were not sitting the week of the 7th of

17 March.

18 JUDGE MAY: No, the week of the 7th of

19 February. We're in March now.

20 MR. STEIN: Sorry. Just so I won't surprise

21 my colleagues on the other side of the aisle, we do not

22 have anything relative to the Viteska Brigade that I'm

23 aware of, and as to Mr. Beese, I gather the issue is

24 set down for the argument on his testimony, we do

25 object, not his actual presentation. I want to make

Page 12779

1 clear on that.

2 JUDGE MAY: I'm sorry. What's the objection

3 as far as Beese is concerned?

4 MR. STEIN: Beese is a late witness.

5 JUDGE MAY: That's the objection.

6 MR. STEIN: That's right. Moreover, quite

7 frankly, Judge, he's cumulative, in our view, to the

8 presentation of the case, but that's our view of it.

9 JUDGE MAY: We'll look at that in due

10 course.

11 I shall write down against number 14, the

12 10th of March or before.

13 JUDGE BENNOUNA: [Interpretation] Mr. Nice, I

14 wish to react to what you just said. The Chamber is

15 not trying to stop you in an artificial or arbitrary

16 manner, as you said, to prevent the Office of the

17 Prosecutor in completing and conducting its work. I do

18 not think that, quite the converse. It is our

19 responsibility that the case is presented in as

20 complete a manner as possible and without delay. This

21 is one of the concerns of justice in general, not only

22 here but wherever justice is dispensed. It should be

23 expeditious and fair.

24 It is within that context that we have to

25 talk about this delay. You've already changed from

Page 12780

1 February to March and you know what the consequences

2 are. You know that quite a number of things can be

3 corroborated by documents when this is not contested,

4 so it is up to you to organise yourself or to organise

5 your work. As far as we are concerned, we are not

6 taking that recess which was envisaged so as to allow

7 the Prosecution to finish the presentation of its

8 case. So we shall not be taking the recess that was

9 envisaged. That is how we see this matter.

10 MR. NICE: I am going to reply to that. We

11 have not delayed matters. Matters have been delayed by

12 matters outside our control, including the loss of days

13 at this Chamber through no fault of anyone's. Frankly,

14 I'm disappointed that the Chamber is obliging the

15 Prosecution to face the possibility of presenting

16 evidence in my absence. I made it quite clear when we

17 considered time by way of non-sitting dates that it was

18 important for us to be able to plan our private,

19 including our family lives. I am the senior trial

20 attorney prosecuting this case, I have made private

21 arrangements, and I'm frankly disappointed that in

22 light of everything that's happened, that step's been

23 taken. We will respond to it by making counsel

24 available to lead evidence, but my position remains as

25 it is.

Page 12781

1 We are not responsible for the delay, delay

2 has occurred for other reasons, and this office and

3 this team will not accept criticism for none is

4 properly visited upon it.

5 That's all I'm going to say on that.

6 JUDGE MAY: Very well. The matter can be

7 resolved by finishing the Prosecution case on the 10th

8 of March. That means 11 months will have been spent

9 upon it, a proper time given the length of

10 cross-examination, but I doubt if any longer would be

11 proper.

12 I think what it requires, if I may say so,

13 and this is the last thing to say on the matter, is a

14 robust decision to close the case and to rely on the

15 very extensive evidence which you've already called.

16 We could debate this further but we're not going to.

17 Let's move on to the Defence. In this

18 connection, number 15, where are we on the core

19 documents, Mr. Sayers, please?

20 MR. SAYERS: With respect to the objections

21 that we filed on July the 6th, Your Honour, the Trial

22 Chamber will note that the Kordic Defence and, I think,

23 the Cerkez Defence had not stood on ceremony, we've not

24 insisted upon technical objections to the admissibility

25 of documents, other than in the very few instances

Page 12782

1 where we've made objections to specific -- specifically

2 to authenticity.

3 I might draw the Trial Chamber's attention,

4 for example, to the pleading we filed on July the 6th,

5 Exhibit tab numbers 55, 59, 76, 89, 108, and 140.

6 Those, frankly, Your Honour, are the only documents I

7 think that we've objected to on authenticity grounds,

8 and I think that given the nature of those documents,

9 it will be self-evident why some foundation, some

10 authentication will be required.

11 But other than that, I do not believe that we

12 have objected to the introduction of any of the

13 numerous documents offered by the Prosecution, and I

14 anticipate that that is the course that we will follow

15 when we review the remaining documents.

16 JUDGE MAY: Can you, within the next month,

17 and together with the Prosecution, agree on a core

18 bundle? This really shouldn't be something for the

19 Trial Chamber. Then equally, if you want to add to it

20 when it comes to your case or you want to put documents

21 in, of course you can do so. The important thing is to

22 have out of the 3.000-plus documents that we have,

23 something of that order, 2.000-plus certainly, and many

24 of them extending to many pages, the pages, and I

25 suspect there won't be many, hundreds at the most,

Page 12783

1 which are actually of significance and importance on

2 which the parties rely.

3 MR. SAYERS: I absolutely agree, Your

4 Honour.

5 JUDGE MAY: Very well. The dossier, I think,

6 we've dealt with.

7 The evidence of Mr. Cigar, we should tabulate

8 a date or timetable a date for argument. Again, sooner

9 rather than later. I don't think anything has been

10 said about this so far.

11 MR. NICE: We were going to propose that the

12 Cigar argument might be dealt with next week.

13 JUDGE MAY: Yes.

14 MR. NICE: But we've already got one

15 application, that's the Beese application, and I don't

16 know how long the Cigar argument will take. A skeleton

17 will be available by the beginning of next week.

18 JUDGE MAY: The Beese argument will be, I

19 guess, short. I can't believe it can occupy much more

20 than a quarter of an hour.

21 MR. STEIN: Ten minutes.

22 JUDGE MAY: Ten minutes. Call it quarter of

23 an hour. The Cigar argument, I suppose, is slightly

24 more substantial. Half an hour?

25 MR. STEIN: I would ask for 45 minutes. It

Page 12784

1 is a substantial argument raising interesting issues.

2 I would just ask that we have the Prosecution's

3 skeleton argument a day or two before the scheduled

4 hearing.

5 JUDGE BENNOUNA: [Interpretation] You

6 cannot -- it's not normal that we should devote more

7 time to discuss the admissibility of an expert opinion

8 than for the expert opinion itself, that becomes rather

9 absurd. I cannot accept that. I have read the

10 document, I have seen your highly sophisticated manner,

11 using various colours to comment and analyse it, we

12 have read that. So you can tell us very briefly, in

13 ten minutes, what the point is because we've read it

14 all. We don't need 45 minutes to remind us what an

15 expert opinion is. After all, we are professionals.

16 We know what experts are, we know what kind of sources

17 experts use, and we know all these things, what are the

18 reliable and non-reliable sources on which one can rely

19 and those that are not acceptable, we know all these

20 things. So please do not explain all those things to

21 us. After all, we're not going to spend an hour and a

22 half to hear whether we should accept an expert opinion

23 or not because that very expert opinion might take that

24 much time, so personally I don't agree with that.

25 MR. STEIN: The only reason I asked for 45

Page 12785

1 minutes is two-fold: First, if I ask for 45 and do it

2 in a half hour, you will be much happier with my

3 presentation and my speed or lack thereafter. Second,

4 frankly, the issue of experts is, with respect to all

5 concerned, the most perplexing issue in modern

6 procedure. It has plagued the U.S. Supreme Court in

7 several ways, times, shapes. It has got the benefit of

8 our best and worst judicial thinking, and it's

9 important, and a very important issue in this case.

10 JUDGE MAY: Is there any reason why we

11 shouldn't deal with both the Beese argument and this

12 argument on, say, next Friday, three-quarters of an

13 hour for the whole thing?

14 MR. NICE: Certainly. The only reason for

15 having it possibly earlier than that on Thursday is

16 that if Beese is coming, we can secure his attendance

17 more conveniently, say, for the following week by

18 knowing about it on the Friday. But to some degree,

19 timetableing may be affected by the way the particular

20 witnesses are cross-examined and how much time is

21 taken, but I'm in the Court's hands. Thursday or

22 Friday.

23 JUDGE MAY: Well, we can -- I think Friday.

24 Next Friday.

25 Perhaps I could ask the legal officer about

Page 12786

1 the next item.

2 Yes. Judge Bennouna makes a point that if we

3 have a break anyway, we can advance the time for that

4 argument during the week if there becomes a better time

5 available.

6 MR. NICE: Yes. Thank you.

7 JUDGE MAY: Of course. Number 18.

8 [Trial Chamber confers with legal

9 officer]

10 JUDGE MAY: I'm told that the note is a

11 correct one against 18, that it's a matter for the

12 Trial Chamber to determine, unless anybody wants to say

13 anything about it.

14 MR. STEIN: I ask that it be added only

15 because as we approach our case, it becomes more

16 important.

17 JUDGE MAY: Yes, it becomes more urgent.

18 Thank you. I'll note that.

19 Number 19, it's a matter really for the

20 Prosecution and to draw the Prosecution's attention to

21 Judge Hunt's decision in Krnojelac dated the 1st of

22 November, where the Judge required the Prosecution to

23 file a signed report by a member of the team certifying

24 that the obligations under Rule 68 had been carried

25 out. Is there any objection to that being done?

Page 12787

1 MR. NICE: Yes. We regard that as an

2 entirely inappropriate procedure and one that should

3 never have got started in these courts. I'm not going

4 to try and sign up to a document of that kind and I

5 don't think any of our team will. Indeed, the whole

6 idea, which started off with an affidavit in Holland,

7 thus incorporating the jurisprudence of another country

8 into the jurisprudence of this Chamber, seemed to me

9 misconceived.

10 The position about exculpatory material is,

11 as I've said from the beginning, difficult in this

12 setting for the reason that the quantity of material

13 that exists is, of course, beyond the ability of an

14 individual or of a team to read and consider. It's far

15 too much, and it grows every day.

16 Further, the question of what is and what is

17 not exculpatory is very much a matter of judgement,

18 difficult judgement, made the more difficult, of

19 course, when the issues are as multi-serious as they

20 are here, and made difficult when, as here, the Defence

21 set out, I think, a list of 28 or 38 questions that

22 they said ought to be asked effectively of each and

23 every document.

24 The best that one can do is one's best to

25 honour the obligations, and as I've made plain from the

Page 12788

1 beginning, that is what we have done, are doing, and

2 will continue to do. But there's no certification,

3 there's no document that's going to assist that

4 exercise, and what would such a document -- what

5 purpose would such a document serve? None. My word

6 will be good enough, I trust, on this topic, and if it

7 isn't, I shall like to know why. We have done our

8 best. We are doing our best. We will continue to do

9 our best to honour the obligations under the Rules to

10 make available what we judge to be exculpatory

11 material, and that's as far as we can go.

12 [Trial Chamber confers]

13 JUDGE MAY: Yes, Mr. Kovacic.

14 MR. KOVACIC: [Interpretation] Mr. President,

15 if I may, I should like to say a few words because I

16 really do think this is a sensitive issue. I apologise

17 for speaking in Croatian, so it will take a little

18 longer, but I will be brief.

19 We have discussed this issue at some length.

20 We have exchanged quite a quantity of correspondence

21 with the Prosecution. I have written to them and we

22 have talked about it, and the position is the one you

23 have just heard. However, without entering into any

24 details, I must say two things.

25 First, if the Prosecution did not know at the

Page 12789

1 beginning of the case but by now it certainly knows

2 what the gist of the Cerkez defence is, I'm sure they

3 are fully conscious of that, and if they do understand

4 that, then they know which documents they need to

5 search for actively, not to just sit and wait and if

6 they come across a document from another case, or an

7 investigator, or an agency, or as a result of these

8 various searches that have been done all over Bosnia,

9 and then to say, "This might be a handy document for

10 Cerkez and let's give it to him," that is not

11 sufficient. I must say, even regarding those

12 documents, we haven't received any, except for a very

13 few exceptions.

14 I do not wish to fatigue anyone. I wouldn't

15 enter into any legal discussions. I think the Rules

16 are quite clear, and the practice in court has taken a

17 certain direction. A case has been mentioned where a

18 certain standard has been set, and I would simply like

19 to add, by way of an example, when the Prosecution

20 claims there's no exculpatory material and then the

21 next day such a document is put on the table.

22 Let me use an example; two documents that

23 were recently produced through a witness. I'm not

24 quite sure whether it was in open session or not, but,

25 in any event, an intelligence officer in Stari Vitez.

Page 12790

1 I won't enter into the substance of the case, but I

2 will say this: You will remember that document. At

3 the request of a higher command, he writes a report

4 who, in his opinion, are war criminals or, rather,

5 people responsible for various crimes in Vitez, and he

6 is sitting 500 metres from the office of my client.

7 And among the 30 names, he doesn't mention my client.

8 When the Prosecutor and I started discussing that

9 document, the Prosecutor says to me, "That is not

10 exculpatory evidence. Every list that doesn't mention

11 your client is not exculpatory." Yes, I agree with

12 that, that every list that doesn't mention my client is

13 not exculpatory material. But if we take into account

14 the circumstances, who it was in question, at what

15 time, and what the aim of such a list was, then this is

16 a perfect example of an exculpatory document.

17 After that, I'm afraid I cannot trust and I

18 cannot accept that the Prosecution has, in good faith,

19 engaged in an active search, because it all boils down

20 to whether the Prosecution may come across a certain

21 document or not and then it will provide it to the

22 Defence. If it doesn't, that's the end of it.

23 In an earlier stage of disclosure, I'm afraid

24 last night I was too tired to find the document in

25 question, but we received a document, and in the

Page 12791

1 accompanying letter it wasn't clearly stated whether it

2 was exculpatory or not. But there was a wording saying

3 that it might be, and this was a document of some 15

4 paragraphs, compiled obviously in the Prosecution, and

5 these paragraphs were excerpts from various reports.

6 Somebody somewhere said such and such a thing. There

7 is a report that such and such a thing happened. So

8 these are just quotations from various reports without

9 the source being indicated, who said this, when and

10 where. Absolutely useless material. I responded at

11 the time and said, "I'm sorry, this is not helpful to

12 anyone."

13 So I think this has become really crucial

14 now, because we have seen, in the course of the

15 proceedings, that there are documents that are

16 exculpatory for my client and that mitigate his guilt,

17 and I ask the Court to rule on this matter bearing in

18 mind the fact, in particular, that the Prosecution, as

19 a unified organisation, has control over documents

20 which, due to various procedural reasons, have been

21 used in other cases linked to the Lasva Valley but are

22 under seal and to which I don't have access.

23 So I think I have every right to assume that

24 in the Blaskic, Kupreskic, Aleksovski cases, there are

25 documents which I have heard referred to in the course

Page 12792

1 of my investigations but which I cannot gain access

2 to. But the Office of the Prosecutor, using your order

3 of the 16th of February, can gain access to, but not

4 just sitting around and waiting for a document to be

5 placed on their table.

6 JUDGE MAY: Why don't you ask for the

7 documents which you want, Mr. Kovacic?

8 MR. KOVACIC: [Interpretation] If I had a

9 precise list and if I were able to identify document

10 number so and so, dated such and such, I would. But

11 much of the information I have is along the lines of

12 somebody saying, "During the investigation, I saw a

13 document, an order," for instance, by General Blaskic

14 from such and such a date, "and when I was interviewed

15 in court, the document was produced, but that document

16 is confidential. I was told it was confidential, and I

17 can't talk about it," so I can't go on questioning that

18 witness about it. I don't know where the limit is.

19 Never in my life have I worked with this kind of

20 attitude towards documents, "These are confidential,

21 these are not."

22 Sometimes you're not sure what kind of

23 document you're dealing with if you don't have it in

24 your hands, whether it is protected by the Court or

25 not. If I know of a particular document, I will ask

Page 12793

1 for it. But I think that there is no doubt that it is

2 the obligation, unqualified obligation, of the

3 Prosecution to actively search, especially now, when it

4 is aware of the concept of our defence. I may agree

5 that earlier on -- I think we can all agree that that

6 is the bad side of this attitude regarding exculpatory

7 material, the Prosecution need not know what it is.

8 But by now, knowing what our defence will be, they know

9 what is exculpatory material for us.

10 JUDGE BENNOUNA: [Interpretation] Mr. Kovacic,

11 in my view this is a matter with regard to which we

12 have to presume the good faith of the Prosecution.

13 There's no other way of approaching it. The Office of

14 the Prosecutor is a team. It has the Chief Prosecutor

15 at the head of it, and she organises the work within

16 that office. Personally, I don't quite agree in

17 identifying anyone within that team as being

18 responsible personally, but I think that we must reckon

19 with the good faith of the team, and the obligation is

20 to provide all exculpatory material in their

21 possession.

22 If, on your side, however, you have a request

23 regarding a document that you feel could be exculpatory

24 and that may be in the possession of the Prosecution,

25 you should ask for it. But that's it, that's the end

Page 12794

1 of it, except if we were to give access to you to the

2 documents, which it is not possible to do. That is how

3 things have to function. There is no other way.

4 For example, the production of documents that

5 you requested from the ECMM, those documents in the

6 possession of the Prosecutor, which were not disclosed

7 here and which were not given to you, should be given

8 to you directly without having to ask for them, because

9 you did address the organisation in question for them,

10 and if the Office of the Prosecutor has them, then they

11 should give them to you. The only way to proceed is in

12 a pragmatic manner. There is no other generalised

13 rule.

14 But I think that the good faith, let me say

15 once again, of the Office of the Prosecutor has to be

16 presumed as given, and we must work on the basis of

17 that principle, that the Prosecution is working in good

18 faith, as, of course, is the Defence in the trial.

19 MR. KOVACIC: [Interpretation] Your Honour, if

20 this comment is addressed to me, I wouldn't otherwise

21 go on with this discussion. Of course, I believe in

22 this bona fide approach, but one must make a

23 distinction. Whether the Prosecution comes across a

24 particular document in the course of its work is one

25 thing, or should it explicitly assume the obligation.

Page 12795

1 And I think an interpretation of the Rules does mean

2 that, that somebody should be designated to work on it,

3 even if it is at the end of the case, to look for

4 documents under certain issues and under certain

5 topics, and after that, to give a certificate and say,

6 "We have carried out such and such searches." One's

7 word is one's word, but a statement saying, "We have

8 actively searched."

9 Of course, the criteria are based on their

10 good faith. "If we find something, we will disclose

11 it." I now have no guarantees. To the contrary, if I

12 understood my learned friend, he is saying, "We cannot

13 search specifically for the Cerkez Defence." They can

14 and should, because it is required of them by the

15 Rules.

16 That is all I have to say.

17 JUDGE MAY: Let us try and bring this matter

18 to a conclusion. I must say I agree with the Judge.

19 It seems to me that if counsel, in court and robed,

20 gives an assurance, then it is something which I, for

21 one, am very likely to accept.

22 Yes.

23 MR. STEIN: And I would agree, and I want to

24 make clear, because I want to join with Mr. Kovacic,

25 the Prosecutor's word or good faith is not at issue.

Page 12796

1 What is at issue is how does an institution, composed

2 of many sections, some of which speak to each other,

3 some of which don't, all of which have huge, vast

4 quantities and arrays of information available to it,

5 meet its affirmative obligation to search within that

6 institution for a certain category of information,

7 materially favourable or exculpatory evidence? It's no

8 different than suing a corporation which has hundreds

9 of thousands of employees and offices, and you ask, in

10 a discovery request, for certain kinds of documents,

11 and it is done akin to what has been suggested by the

12 Prosecution in another setting, having a corporate

13 officer arrive and affirm that, "This is the search I

14 undertook in response to the discovery request to get

15 the documents that you are entitled to in this

16 particular civil lawsuit."

17 As I understand it, the Prosecution has made

18 a public request for at least one State to do just

19 that. "What have you affirmatively done with response

20 to orders of the Court?"

21 Now, the parallel is clear and the difficulty

22 is clear, particularly in the age of electronics and

23 the electronic storage of data, and it is only made

24 more difficult for those of us who are going to

25 litigate into the 21st Century. But it doesn't stop by

Page 12797

1 the Prosecutor saying, "There's just too much out there

2 and we can't do it and there's a minefield out there,

3 because we don't know what to look for, we don't know

4 where to look for, we don't know what's exculpatory."

5 I don't think that should be acceptable.

6 They understand from our pleadings, our

7 positions, what is favourable and what is not, and as

8 honourable men and women, when they see it, they turn

9 it over. The question is when they see it. And, as I

10 think what Judge Hunt envisioned and what we propose,

11 informally or formally, is an affirmative obligation

12 followed by an affirmative act and an affirmative

13 pleading that the work has been done.

14 It will be impossible, I predict, to ever

15 determine whether or not, in the bowels of all the

16 information in the Prosecution's hands, is exculpatory

17 material from us, and if some document at a later time

18 turns up, or thing, the issue will turn up -- the

19 issue will resolve, "Is it exculpatory, is it

20 materially favourable, and would it have made a

21 difference?" Well, we'll never know, and we don't want

22 to be there, and we don't want to be in post-trial

23 litigation on topics along these lines.

24 And so I suggest again that as difficult as

25 it is, someone must take the bull by the horns and

Page 12798

1 pursue the suggestions, and now the law as encompassed

2 in Judge Hunt's decision.

3 JUDGE MAY: You've heard our reaction to it.

4 We're not sitting as a fully-constituted Chamber and

5 therefore we can't make an order, but that's our

6 reaction.

7 Can we move to 20. Already there are

8 problems about 20.

9 MR. SAYERS: There are no specific

10 outstanding problems of which I'm aware, Your Honour,

11 other than the general issue which we would like to

12 bring to the Trial Chamber's attention, and that is

13 access to materials in the Lasva Valley cases which are

14 available to the Prosecution but not available to the

15 Defence, if, for no other reason, they would be of

16 interest to Mr. Kordic's Defence, speaking for myself

17 anyway, to investigate other sources of information

18 that are available of a useful nature to the Defence.

19 Certainly in terms of General Blaskic's

20 evidence, that would be one example, and any other

21 closed session testimony of a witness whose testimony

22 the Prosecution proposes to introduce in part. It's

23 simply impossible for us to evaluate the position

24 intelligently unless we are able to see all of the

25 testimony of that witness, because there may be

Page 12799

1 portions of closed session testimony that we would

2 choose to designate as well.

3 So that's the position, Your Honour.

4 JUDGE MAY: We'll look into that. I hadn't

5 appreciated that there are some outstanding matters or

6 may be. If there are, we'll consider them.

7 JUDGE BENNOUNA: [Interpretation] Mr. Sayers,

8 explain to me very precisely this matter because I'm

9 afraid I don't quite understand.

10 Up to now we have functioned as follows:

11 When you have needed other evidence which may have been

12 produced in other cases concerning the Lasva Valley,

13 you requested them in writing frequently and we

14 addressed the appropriate Chamber which generally

15 replied favourably and provided the information

16 requested. So it is up to you, within your strategy of

17 defence, to say. You cannot tell the Chamber in

18 general terms, "We need all the evidence" without being

19 more specific. It is up to you on a case-by-case basis

20 to tell us, "We need testimony, for instance, the

21 Blaskic testimony for such and such a reason," and I

22 think you must be specific with your request and that

23 this should go through the normal channels, which means

24 that this Chamber would address the other Chamber and

25 see if there were any protective measures, that we have

Page 12800

1 to impose them now.

2 So it seems that that is how we have been

3 functioning up to now and how you should organise

4 yourself in the future.

5 MR. SAYERS: Judge, I think we are saying

6 precisely the same thing.

7 The question was, are there any specific

8 matters outstanding in connection with a motion for

9 access to the Lasva Valley materials. I'm not aware of

10 any specific matters, and I merely raise the issue of,

11 for example, General Blaskic's testimony as one

12 instance where, should a request be made for

13 introduction of particular parts of his testimony, then

14 we would respectfully request access to all of his

15 testimony so that we could make an evaluation of the

16 request. Thank you.

17 JUDGE MAY: The remaining items, we have a

18 few minutes left before the break, are 21 and 22.

19 Dealing first with 21, I think we said

20 earlier that the pre-Defence conference should take

21 place about a month before the end of the Prosecution

22 case, working on the 10th of March for that. I would

23 have in mind a date such as Friday, the 18th of

24 February for a pre-Defence conference. That, I think,

25 would be, what, about a month away? There should be

Page 12801

1 time to prepare. Also, it would be about a month

2 before the end of the Prosecution.

3 I don't know how that would fit in with other

4 people's programmes.

5 MR. NICE: Obviously, that would fit in with

6 our programme. All I'd ask is that because of the

7 constraints of time on us for evidence, that if it's

8 necessary to use the afternoon of the Friday, I know

9 that that was once ventilated as a possibility on the

10 sitting times, it's fair to, say, use the afternoon for

11 the pre-trial conference because evidence would consume

12 the morning, that that be considered, because otherwise

13 we lose, of course, another chunk of time for our

14 witnesses. That's all.

15 MR. STEIN: Your Honour, personally, I must

16 leave before the 18th. If I'm unavailable, someone

17 else, obviously, from our team will be here.

18 JUDGE MAY: It's a matter for you. Would you

19 prefer that it be dealt with earlier?

20 MR. STEIN: A day or so would certainly be

21 helpful. I'm entirely within the Court's hands. I

22 don't want my personal situation to affect anybody.

23 JUDGE MAY: It's not a matter which need take

24 a great deal of time, more than half an hour or so, I

25 would hope.

Page 12802

1 MR. STEIN: A preliminary conference, I would

2 presume so.

3 JUDGE MAY: A preliminary conference could

4 occupy about half an hour.

5 [Trial Chamber confers]

6 JUDGE MAY: Yes. Well, one way of dealing

7 with this, Judge Bennouna suggests and I agree, would

8 be to deal with the matter earlier in the week, one day

9 after our normal sitting times. If we had a break at

10 4, we could come back at 4.15 on, say, Wednesday the

11 16th.

12 MR. STEIN: Yes. I think as a preliminary

13 half-hour conference, that would be perfectly

14 appropriate.

15 JUDGE MAY: Mr. Kovacic.

16 MR. KOVACIC: That's fine with me, Your

17 Honour.

18 JUDGE MAY: Good. So we will fix that, the

19 16th, Wednesday, the 16th, at 4.15. It will be subject

20 to discussion with the interpreters, of course, who may

21 have a view about the whole matter. But subject to

22 satisfactory arrangements being made, that's what we

23 would have in mind on the basis that the hearing would

24 last about half an hour or so.

25 Can I go on to the last item and mention in

Page 12803

1 this connection that one of the matters which this

2 Trial Chamber has to have in mind is that this is not

3 the only trial. Not only is it not the only trial,

4 there are another three cases on its docket, and some

5 of the accused in those cases have been in custody for

6 some time, and, therefore, we are going to have to

7 consider how to arrange our work between the two

8 cases. Now, this can only be, by way of preliminary

9 thinking, allowed, it's no more than that, but I want

10 to draw it to your attention because it will affect

11 clearly the conduct of this case.

12 So we need to know in order to plan our work,

13 have some idea of the Defence position so that we can

14 plan the work for the rest of the year. I don't know

15 if you're in a position to deal with that. At least

16 give us an indication, Mr. Stein, of what may be the

17 progress.

18 MR. STEIN: Let me give you the bad news

19 first and then the good, if I may.

20 The resolution of this issue, of course, is

21 dependent on how the Court resolves our motion to

22 dismiss and to close the case. The issues of command

23 and control and individual liability will be clearly

24 addressed in that motion. The Court's ruling will

25 shape what we need to do, obviously. Similarly, with

Page 12804

1 regard to the Dr. Cigar issue and also the ex parte

2 issues which we have dealt with and the time frame in

3 which, if we are successful, we then can get evidence,

4 use that evidence within the proper framework. So all

5 those movable parts are about us.

6 So that results, if everything goes awry, we

7 believe, between a five to nine month trial for the

8 Defence with 100 witnesses, if all things work

9 adversely, and that's assuming full trial weeks.

10 The good news, on the other hand, is

11 Mr. Kovacic and Mr. Mikulicic and us met yesterday and

12 we will continue to dialogue on whether or not much of

13 what we do or some of what we do can be done jointly so

14 there will be no overlap, and we're exploring that.

15 So I would say at the outset, five to nine

16 months because you need a number. I would not,

17 however, if I may be so bold, suggest that that is

18 something that should be etched in stone

19 administrative-wise or otherwise because it is just too

20 early. We'd love to do it in less; we hope not to do

21 it in more. Five to nine months is a long window, and

22 I appreciate that, and we will endeavour mightily to

23 hone our case down so we can give you a specific time

24 period for the Court's administrative purposes.

25 The other aspect that drives the equation,

Page 12805

1 frankly, is the time period between the Prosecution's

2 case and our case, not set for argument, but it does

3 drive our work. You may appreciate, I'm sure, that

4 during the course of the trial, we have spent our time

5 doing what we do, working on the matters at hand. The

6 more time we have between the close of the

7 Prosecution's case and the opening of our case to

8 resolve the motion to dismiss, to resolve the evidence

9 that will be coming in through co-operative States as

10 well as non-co-operative States, and to generally get

11 our house in order, the shorter our case will be.

12 So those are the parameters in which I feel

13 comfortable addressing the Court.

14 JUDGE MAY: Of course, the same comments will

15 be made about the Defence as we've been making on the

16 Prosecution, on the need to cut down witnesses, to

17 explore other methods of putting evidence before the

18 Court.

19 MR. STEIN: Absolutely.

20 JUDGE MAY: And I hope you will be exploring

21 with the Prosecution, trying to agree matters, agree

22 statements, indeed.

23 MR. STEIN: Yes.

24 JUDGE MAY: There are whole areas which I

25 would have thought are capable of agreement or

Page 12806

1 non-dispute, matters, for instance, of character. I

2 can remember in Kupreskic, for instance, that what we

3 did -- of course, there were six accused, but what we

4 did was allow, I think, one character witness per

5 accused and then required affidavits for any remaining

6 witnesses. That sort of thing and matters which go

7 towards background of the offences, or certainly as far

8 as the accused are concerned, all that, I would hope,

9 is capable of swift resolution.

10 MR. STEIN: Yes. And I propose, having

11 learned from one of my better colleagues on the other

12 side about modern trial procedures and new innovative

13 ideas, to perhaps be making some suggestions across the

14 aisle as well.

15 JUDGE MAY: But you asked for a longer time;

16 I indicated a shorter time earlier. That may have to

17 be reviewed, what I said, in the light of our need to

18 start other trials.

19 MR. STEIN: Along those lines, when we get to

20 the issue of time between this case and the start of

21 the Defence case, I think that is a window that the

22 Court might look to in terms of its other work that

23 could be consistent with our needs as well.

24 JUDGE MAY: One suggestion is looking at the

25 calendar, it's no more than a suggestion and can't be

Page 12807

1 at this stage, if the Prosecution were to finish on the

2 10th of March, it's then a period of one week where

3 we're not sitting and then another six weeks before the

4 May sittings, post-Easter, Easter comes at the end of

5 April, May the 1st, I recollect, is a holiday here, but

6 May the 2nd would be a day when the Court would be

7 sitting again after the Easter break, I anticipate.

8 You might like to consider that date.

9 MR. STEIN: Let us mull -- I'm sure

10 Mr. Kovacic has his own views on these things, and when

11 we next speak we'll be ready to talk about it.

12 JUDGE MAY: I think you must expect judicial

13 involvement --

14 MR. STEIN: Oh, yes.

15 JUDGE MAY: -- in how the case is presented.

16 MR. STEIN: It always boils down to are we

17 given a straight May-through-June, eight weeks ours,

18 this is our courtroom, or are we interspersed, as has

19 been the case in the past, with other trials? Both of

20 which -- neither of which is a perfect world.

21 JUDGE MAY: Of course, I have endeavoured and

22 will go on endeavouring to ensure that everybody is

23 given the earliest possible indication of what the

24 Trial Chamber proposes to do with its programme. There

25 is at least a programme available, which I don't see

Page 12808

1 why you shouldn't have, for May the 1st until September

2 the 8th. We will be taking the month's recess. Of

3 course, that's a matter which we've got to consider.

4 MR. STEIN: I would appreciate that

5 programme. I'm sure the legal officer will give me one

6 and we can work that into the mix.

7 JUDGE BENNOUNA: [Interpretation] Mr. Stein,

8 since you are on your feet, and also Mr. Kovacic, when

9 do you think you will be able to give us a list of your

10 witnesses and possibly some idea about the substance of

11 their testimonies, and when do you think you would be

12 able to supply us with that list? I'm asking an

13 identical question of Mr. Kovacic, obviously.

14 MR. STEIN: The Prosecution, in this

15 particular case, was ordered to supply us with that

16 list on March 27th, as I recall, the trial starting on

17 April 12th. I would think that certainly two weeks

18 before the start of our trial we would be able to do

19 that.

20 JUDGE BENNOUNA: That means in the middle of

21 April or something.

22 MR. STEIN: Assuming we were to start on May

23 the 1st.

24 JUDGE BENNOUNA: On May 1st. Thank you.

25 JUDGE MAY: I draw your attention to the

Page 12809

1 Rules about the pre-Defence conference which I will

2 have to look at, and we'll see what the obligations are

3 in that regard.

4 Mr. Kovacic, yes.

5 MR. KOVACIC: Just a slight addition.

6 As my colleague Stein said, we recognised

7 earlier, and indeed yesterday we had, I guess, at least

8 three meetings on the same topic, how to economise the

9 Defence case, because certainly, as you understand,

10 there are many issues on the level of general or

11 preconditions or surroundings, et cetera, and that is

12 the area where we can obviously save some time. Some

13 of us are having a little bit different opinions on

14 something so we are discussing how to put all that into

15 one very compressed block.

16 That is probably the best opportunity to

17 economise the time, I guess. Otherwise, each Defence

18 will go with its separate set of evidence and that

19 won't be very rational, of course.

20 JUDGE MAY: I mean, there cannot be an

21 overlap, we can't have witnesses saying the same

22 things.

23 MR. KOVACIC: Absolutely.

24 JUDGE MAY: So please work on that basis.

25 MR. KOVACIC: Your Honour, we are going even

Page 12810

1 further, that is what I'm trying to say. It's not that

2 we will have repetitive evidence on that part, but also

3 that we can -- and we've already found some

4 possibilities on that, that while discussing the

5 matters amongst us, we are narrowing the issues as

6 well. So instead of having, I don't know, three

7 witnesses on one issue, we may do it with one or with

8 two and then papers.

9 So we do feel that it is a very important

10 job, but there are many, many open issues still

11 pending, and that, somehow, is harming us to speed up

12 that process. Thank you.

13 JUDGE MAY: Unless there are any other

14 matters which anyone wants to raise.

15 MR. NICE: Only two, one entirely

16 administrative.

17 There is an organigramme, as I think I

18 indicated, that's available for distribution in case

19 it's of assistance.

20 Momentarily for this hearing, if the Chamber

21 would look at its list of ex parte applications

22 relating to the Prosecution, number 11, that is the

23 witness who was scheduled to attend today, or this

24 week. Normally, we would deal with this by an ex parte

25 hearing and suggest having an ex parte hearing in

Page 12811

1 relation to it, but we can avoid that hearing if I

2 simply tell you that the evidence or the material

3 available in relation to that witness is exactly what

4 is contained in the report of the security officer that

5 we've already looked at in relation to other witnesses,

6 it's no more and no less than that, and we would invite

7 the Court, now that the witness has not attended, to

8 read that material and, therefore, to deal with that

9 witness in the same way as the Chamber will, in due

10 course, deal with the other witnesses who've already

11 shown themselves unwilling to respond to the subpoena.

12 JUDGE MAY: A report of the security

13 officer? Remind me.

14 MR. NICE: Bromfield is his name.

15 JUDGE MAY: Oh, yes. The legal officer

16 raises a point of a date when you want these witnesses

17 to give evidence.

18 MR. NICE: I think that in order that the

19 whole process can be gone through, including, as the

20 Chamber knows, consideration of their evidence being

21 read, if we could have them all timetabled to appear on

22 the first week after the break, that would be the week

23 of the 14th of February, then I think that should give

24 us time for other steps to be taken if, as I rather

25 fear, they may not be responsive. But if they are

Page 12812

1 responsive, that week, we'll have to put other

2 witnesses back.

3 MR. STEIN: If the Prosecution can give us

4 the 20 remaining witnesses in the order in which

5 they're going to testify beyond the fortnight rule, it

6 would be immensely helpful.

7 MR. NICE: Certainly. I think they've got

8 them all in earlier lists, but I'll give them our

9 best/latest calculation via Ms. Bauer sometime today.

10 JUDGE MAY: Then pass it on to the Trial

11 Chamber too, please.

12 MR. NICE: Of course.

13 JUDGE MAY: Thank you. Monday morning,

14 please, at half past nine -- Tuesday. Tuesday morning

15 at half past nine.

16 --- Whereupon the Status Conference

17 adjourned at 11.20 a.m.