Tribunal Criminal Tribunal for the Former Yugoslavia

Page 23516

1 Monday, 31 July 2000

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 9.35 a.m.

5 JUDGE MAY: As I think you've all been told, the Court cannot sit

6 today in the normal way. Judge Robinson being absent on duties elsewhere,

7 and thus not being able to attend today. It was proposed that Judge

8 Bennouna and I would sit under the Rule which allows two Judges to sit

9 but, in fact, over the weekend, he was called away suddenly because of a

10 family illness and so cannot be present today.

11 The position is that it's anticipated that both Judges will be

12 back tomorrow so we can sit then but it does mean, of course, that we can

13 have no hearing of evidence today or no motions hearing. But it occurred

14 to me that it may be convenient to deal with various housekeeping matters

15 and at least the programme for this week and also, as far as possible, to

16 start considering the programme for the autumn.

17 Unless anybody wants to raise anything, it seems to me that the

18 matters we can usefully discuss are these: The programme for the Cerkez

19 Defence witnesses this week, the outstanding motions. There are three

20 Defence motions outstanding and a Prosecution motion, and the affidavits.

21 Those matters must be attended to this week and time must be made

22 available for them.

23 The Cerkez preparations for the autumn, the Prosecution

24 preparations in terms of rebuttal evidence, if there is anything that can

25 be told, and two other matters which have yet to be finalised and those

Page 23517

1 concern the exhibits from the last Kordic witness who was Witness DL, and

2 I think at some stage, we have not yet finalised which exhibits were

3 admitted and which weren't. We need at least to look at that and see what

4 needs to be decided. And also when the Prosecution propose to recall the

5 witness for the tape, Mr. Husic. Generally, if there is any further

6 information on the Kordic exhibits, what progress is being made in their

7 being admitted.

8 So with those matters in mind, we'll begin with the witnesses for

9 Mr. Cerkez. Yes, now, Major Stipo Ceko was giving evidence. He had

10 finished his evidence in chief and was to be cross-examined. Do you know

11 how long that's likely to be, have you any information?

12 MR. KOVACIC: Unfortunately, I have no idea, Your Honour, how long

13 the Prosecution will need for cross.

14 JUDGE MAY: Let's find out.

15 MR. NICE: Your Honour, it's unlikely to be less than half a day.

16 These witnesses cover the whole territory of Cerkez's Defence and the only

17 way I can reduce the time taken with one witness is forecasting that some

18 of the other topics that I might raise with Witness X it will be possible

19 to put with Witness Y which is what I, by and large, have been doing, but

20 I don't think I will be less than half a day.

21 JUDGE MAY: Very well. We have your list, Mr. Kovacic. You have

22 four witnesses listed.

23 MR. KOVACIC: Yes, Your Honour. That is correct.

24 JUDGE MAY: Mr. Cickovic, is that his name.

25 MR. KOVACIC: Cickovic.

Page 23518

1 JUDGE MAY: We now have his summary, four pages. I don't

2 anticipate he will be one of the longest witnesses.

3 MR. KOVACIC: No, very short.

4 JUDGE MAY: An hour or so in chief.

5 MR. KOVACIC: We believe that in chief could be between half an

6 hour and one hour. One hour, let's say, maximum.

7 JUDGE MAY: So it may be possible to get through his evidence or

8 most of it on Tuesday with possibly cross-examination Wednesday morning.

9 MR. KOVACIC: I would think so.

10 JUDGE MAY: Now, are the other three witnesses available?

11 MR. KOVACIC: Yes, Your Honour. The only issue is all of them are

12 here except the witness under number five.

13 JUDGE MAY: We obviously don't have the same list. I've got one

14 with only four on it.

15 MR. KOVACIC: I will let you know then.

16 JUDGE MAY: Yes. So Mr. Mlakic, Mr. Jukic and Mr. Kapor are all

17 here.

18 MR. KOVACIC: There is a small exchange. Instead of Mr. Kapor,

19 who was not able to go to passport, and I was only informed about that

20 only shortly before the weekend, so he is out for time being. Probably he

21 will be coming in September.

22 JUDGE MAY: Have you got somebody instead of him?

23 MR. KOVACIC: We have Ms. Anastasia Protz. We did send a letter

24 to other parties but, unfortunately, obviously the copy was not

25 distributed.

Page 23519

1 JUDGE MAY: I've got it. It's arrived just this moment. So

2 Mr. Mlakic we will call to us, and you've got -- sorry, Mr. Mlakic. Yes,

3 how long is Mr. Mlakic to be, do you anticipate?

4 MR. KOVACIC: For direct examination, I don't anticipate more than

5 15, 20 minutes at most. It's practically only on one fact and we are not

6 interested in anything else.

7 JUDGE MAY: What is that?

8 MR. KOVACIC: The fact is the position of Mr. Lujic, Lujic Marko,

9 and the recently Mr. Puljic testified.

10 JUDGE MAY: Yes, I have it. Yes, the artillery point.

11 MR. KOVACIC: But it was divided in time. Puljic covered one part

12 in time, this one is supposed to cover the time before that.

13 JUDGE MAY: So he, anyway, will not be long. And I now have the

14 new list. Mr. Cickovic we've mentioned. Mr. Zoran Jukic --

15 MR. KOVACIC: Mr. Zoran Jukic is a little bit longer, but I don't

16 anticipate more for direct examination, don't anticipate more than one

17 hour let's say.

18 JUDGE MAY: Thank you. And Mrs. Protz.

19 MR. KOVACIC: She will take, for direct examination, not more than

20 20 minutes.

21 JUDGE MAY: What does she deal with?

22 MR. KOVACIC: She is recorded as a witness in the incident murder

23 in hotel, in May 20, 1992. She is recorded as on-site report of

24 investigative judge as witness. So we have located her based on that

25 document.

Page 23520

1 JUDGE MAY: This is the Trako murder.

2 MR. KOVACIC: Right. Trako murder in the hotel May 20, 1992.

3 JUDGE MAY: Again, relatively short.

4 MR. KOVACIC: Very much so, sir.

5 JUDGE MAY: So we could allow something like six hours for those

6 four witnesses. We may be able to finish those by Thursday.

7 MR. KOVACIC: Yes, Your Honour. I entirely agree.

8 JUDGE MAY: Thursday lunchtime.

9 MR. KOVACIC: Originally, without anticipating that we will -- not

10 hearing the witnesses this day, we were just about to inform you that

11 according to our expectations, we may be finished -- we may be out of

12 witnesses, better to say, even on Wednesday, late afternoon. So probably

13 now it is Thursday afternoon, as you put it --

14 JUDGE MAY: Yes.

15 MR. KOVACIC: -- somewhere around there.

16 JUDGE MAY: Yes. Well, very well. That, then, would be

17 convenient, because we could deal with the motions and other matters on

18 Friday morning. Yes. Well, we'll turn to those next.

19 The motions that we have to deal with -- there are three Defence

20 motions filed on the 19th of July. They are for the exclusion of various

21 testimony and to require certification. It would obviously be convenient

22 to deal with all three of those together, and what we'll do is hear them

23 at the end of the evidence.

24 There is also a Prosecution motion, a confidential motion, filed

25 on the 26th of July. Mr. Nice, that's presumably a fairly urgent matter.

Page 23521












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Page 23522

1 MR. NICE: Yes. I think it should be addressed as soon as

2 possible. Sometime this week would be sufficient. Depending on the

3 attitude of the Defence to the issue, it may or may not take some time.

4 It could easily go very quickly, because what is, as you will see, I

5 think, proposed is -- well, it could go very quickly.

6 JUDGE MAY: I turn to the Defence on that matter. Mr. Naumovski,

7 clearly if this matter can be resolved this week, then so much the

8 better.

9 MR. NAUMOVSKI: [Interpretation] We're quite ready for it, Your

10 Honour.

11 JUDGE MAY: I don't know if you want to put anything in writing or

12 not. Do you propose to do that?

13 MR. NAUMOVSKI: [Interpretation] I thought -- I realised -- I

14 talked with Mr. Sayers, and I do not think we should do that in writing.

15 But he will be back here tomorrow and then we shall decide finally. You

16 know that our attitude is, so perhaps we could only add something

17 regarding the specific proposals, even though we already discussed that

18 subject earlier, as I have just said.

19 JUDGE MAY: Mr. Naumovski, I don't know what your attitude is

20 towards it. It may not be appropriate to discuss it today, since I'm

21 sitting alone, but it may be that we can raise it when Mr. Sayers comes

22 back. If you're in favour of the proposal, then perhaps you could mention

23 it to Mr. Nice so arrangements could be made; if you're against it, then

24 of course we'll hear the argument. Thank you.

25 MR. NAUMOVSKI: [Interpretation] Thank you.

Page 23523

1 JUDGE MAY: Mr. Kovacic, the suggestion is we deal with the matter

2 this week. Are you ready to do that?

3 MR. KOVACIC: Yes, we agree to that, Your Honour. I only, if I

4 may put a reserve, we are not in the position to put anything in writing

5 in this point of time. I mean --

6 JUDGE MAY: Very well. No requirement.

7 MR. KOVACIC: We could make a note --

8 JUDGE MAY: No requirements on anybody to put anything in

9 writing. Much better we deal with things orally if we can.

10 The other matter is the affidavits. I'll make sure that I have

11 the affidavits. Mr. Kovacic, there's an affidavit of Ruzica Ceko and

12 another affidavit of Mr. Jakovic [phoen].

13 MR. KOVACIC: Jankovic.

14 JUDGE MAY: Jankovic. It's spelled wrong. Those are the two

15 which you've put forward.

16 MR. KOVACIC: Correct.

17 JUDGE MAY: And then we'll deal with those this week too when

18 we've dealt with the motions.

19 MR. KOVACIC: Yes, sir.

20 JUDGE MAY: Thank you. The outstanding matters which I mentioned

21 were, first of all, Witness DL. As I recollect the position, at the end

22 of -- or during his evidence there was a lot of exhibits, I think, that

23 the Prosecution wanted to put in.

24 MR. NICE: Yes. The position is our evidence was shortened -- our

25 cross-examination was shortened, I having already provided a skeleton

Page 23524

1 argument of the matters on which I wished to cross-examine.

2 Notwithstanding the decision of the Court to allow no further

3 cross-examination, I cannot believe that the documents that I was seeking

4 to put in, or the topics I was cross-examining to or seeking to

5 cross-examine to, were other than relevant, given, for example, that they

6 covered such topics as the targeting of civilian targets and matters of

7 that sort. And so we would seek, I think, all the exhibits that were

8 listed, I think, to go in, and I can support our position in argument on

9 Friday. I'm afraid I haven't brought the list or the documents with me

10 today, although I can get them from my room if you want me to.

11 JUDGE MAY: We can't deal with it today.

12 MR. NICE: No.

13 JUDGE MAY: Mr. Naumovski, would you be prepared to deal, please,

14 with the Witness DL exhibits on Friday or Thursday, whenever we get to it,

15 and let us know what the position is.

16 MR. NAUMOVSKI: [Interpretation] Absolutely, Your Honour.

17 JUDGE MAY: Yes. Thank you. It might be convenient, Mr. Nice, if

18 you would provide a bundle for the Court, if it hasn't been done, a

19 separate bundle.

20 MR. NICE: I think you've only had the skeleton argument, and I'll

21 re-serve the skeleton argument and associate the documents with the points

22 identified as right for --

23 JUDGE MAY: Yes.

24 MR. NICE: -- as we argued, right for cross-examination, but in

25 any case, right for dealing with.

Page 23525

1 JUDGE MAY: So if you would produce all the documents in the usual

2 way for us.

3 It may be convenient next to deal with -- unless there's anything

4 else that anybody wants to raise about this week. Yes.

5 MR. KOVACIC: Your Honour, only one thing. Perhaps it is a good

6 time. I don't think that it requires a formal decision of the Chamber,

7 but it does require understanding, I guess.

8 In a way we -- I mean the Cerkez Defence -- made one mistake, or

9 error, better to say. Witness Sajevic warned us while we debriefed him

10 after the testimony that it was very difficult for him to publicly state

11 it about the troops who were involved in Ahmici, and that is because he

12 intends to live there after the testimony in Bosnia with his family, and

13 there are still some extremists who are not very happy when some forces

14 are mentioned.

15 Based on what we learned from that, we would ask Your Honours,

16 whenever we are driving at the part of the testimony where an answer could

17 mean an explicit nomination of certain troops of HVO, we would ask for a

18 closed or private conference. And I would also kindly ask the Prosecution

19 to cooperate on that matter, and when they know they are going to ask a

20 witness about such units, it would be better if it is closed. Otherwise

21 the witnesses are put in a very difficult position. They are simply

22 afraid.

23 JUDGE MAY: Well, Mr. Kovacic, if a time comes when you think that

24 a witness is or is likely to be put in fear or might be afraid, then it's

25 always open to you to raise the matter if nobody else does.

Page 23526

1 MR. KOVACIC: It is completely clear, Your Honour. I just wanted

2 to use the opportunity to put on the table that we are now much more

3 careful in that. That is, we never ask for specific protective measures

4 or protected witnesses, but now we see that probably there is something as

5 a step in between.

6 JUDGE MAY: That can be done.

7 MR. NICE: Can I possibly be heard on that just so that I can

8 express my provisional views?


10 MR. NICE: First of all, I think it would be wrong, totally wrong,

11 for there to be any general rule whereby evidence about such a central

12 issue as who committed the atrocities at Ahmici should be given in closed

13 session. Quite wrong. Witnesses come here to give evidence, to give the

14 truth and the whole truth, and they are frankly obliged to answer

15 questions about all topics, sensitive or otherwise. Although if they, the

16 witness, rather than counsel on their behalf, if they, the witness, say

17 that it's going to be difficult for them to answer something publicly, why

18 then, arrangements may be made on a case-by-case basis.

19 I would respectfully suggest that the appropriate course would be

20 for there to be no interruption by the Defence on such topics, but I

21 will -- if I get a negative answer from a witness and if it looks as

22 possible that the witness may be embarrassed or frightened of giving an

23 answer, I can always ask him if he would prefer to reconsider the matter

24 with protective measures. I think it would be quite wrong to say that the

25 public isn't entitled to hear from the Cerkez Defence witnesses open

Page 23527

1 questions inviting open answers.

2 JUDGE MAY: Well, there has been in this trial an ongoing

3 difficulty about witnesses not giving evidence in open session. And

4 Mr. Nice, of the 114 witnesses you called, I cannot now give you the

5 number, but I would have thought getting on for 40 per cent gave evidence

6 with protective measures. Now, there has to be some degree of equality

7 here. If a witness is prepared to give evidence without protective

8 measures, but feels there are matters which are sensitive and that are

9 liable to place him or may be liable to place him in jeopardy, he must be

10 entitled to ask for a private session.

11 MR. NICE: On a case-by-case basis. I'm not disagreeing with

12 that.

13 JUDGE MAY: I'm not in a position to make any ruling today, and

14 I'm not seeking to do so, because I think a general ruling would be

15 wrong. But it seems to me that it's open to the witness to ask for a part

16 of his evidence to be given in private session, because inevitably the

17 witness is not going to be as aware of our procedures as those of us who

18 are in Court. Of course, it's possible for you to do it, but it seems

19 equally that it would be wrong to say that the Defence cannot raise the

20 matter if they think it right to do so.

21 MR. NICE: Well, the other thing that concerns me about what

22 Mr. Kovacic says is it would appear about what he says was debriefing that

23 the witness concerned may have been acknowledging that he didn't, in the

24 event, tell us the full content of his memory or give us the full content

25 of his memory. That would be unfortunate of course.

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Page 23529

1 JUDGE MAY: That must be a matter for Mr. Kovacic to deal with.

2 MR. NICE: But Your Honour, I --

3 JUDGE MAY: Mr. Kovacic, I shan't --

4 MR. NICE: Can I complete? In answer to Your Honour's general

5 observation about equality and so on, of course I agree with it in a very

6 broad principle, but I think it's also, if I may say so, important to have

7 in mind the difference between the type of witnesses that are being called

8 for the Prosecution and to explain why there was a large number who sought

9 protective measures. They were, for the most part, victims or associates

10 of victims or of -- for those particular municipalities, those who were in

11 the position of victims, and it's hardly surprising and, indeed, it fits,

12 I think, with the practice of the Tribunal generally that those are the

13 people who were seeking protective measures.

14 It has to be remembered that these witnesses, for the most part of

15 the Defence, are not coming along to describe themselves in the position

16 as victims. They are coming along to say that nothing wrong was done or

17 nothing wrong of any significance was done at all and that indeed people

18 are innocent. Now, it's very hard to understand generally why there

19 should be risk on people giving such evidence if giving evidence such

20 honestly, and that leads to my concern, on behalf of the Prosecution,

21 about the notion that there has to be, as it were, some kind of general

22 equality.

23 Yes, of course, on a witness by witness basis, we must be

24 sensitive and I would be, to concerns that they might have about their

25 security. But I don't think, if I may respectfully say so, it's

Page 23530

1 necessarily the case one simply because X witnesses in the Prosecution had

2 some kind of protective measure that there is, as it were, a parallel

3 expectation or similar expectation for a need for the protection for

4 Defence witness. So that's really reinforcing the point I made earlier

5 that I'd invite the Court to deal with it on a case-by-case basis and as

6 it arises.

7 JUDGE MAY: Very well. Yes, I am not saying there has to be an

8 absolute equality in numbers. The matter is dealt with on a case-by-case

9 basis as we've dealt with it so far. What there has to be is an equality

10 of principle.

11 Yes, Mr. Kovacic.

12 MR. KOVACIC: Just in order to avoid any misunderstanding, the

13 example I mentioned the witness clearly stated what he asked, I checked

14 the transcripts. So it is not that he avoided the answer. However, there

15 are two things. First, he was little bit reluctant on that part, that is

16 at least -- that was, at least, my impression. And then I ask him during

17 debriefing, and I think this is good example, he told me that it is quite

18 difficult for the witness coming from Bosnia to clearly nominate or

19 identify some parties here publicly because when he would return, there

20 might be reactions, that is all.

21 So it is not -- I am not implying that this witness did not say

22 what he was supposed to say, he did. It is in the transcript. I am just

23 using that opportunity to try everybody to understand in this courtroom

24 that those witnesses are coming from real life. We are trying to avoid

25 closed sessions, and we are trying to avoid nonpublic hearings. I am a

Page 23531

1 very conservative lawyer in that, and I would always like to have open

2 witnesses, and I hope that we will be able to run our case without closed

3 witnesses or pseudonym or whatever. But from time to time, we will ask

4 that some parts of the sessions will be closed. And that is all. There

5 is no need to make any big argument out of that or any big legal

6 philosophy. The issue is relatively simple.

7 As Your Honour noticed, it's a matter of balance. So if we are

8 talking about balance, we have a huge reserve and I don't see, really, any

9 serious problem. I just wanted you to understand that there are some

10 other issues that we, as the lawyers in the courtrooms are, unfortunately,

11 sometimes we neglect to see them. That is all. Very simple.

12 Thank you, Your Honour.

13 JUDGE MAY: Well, unless there's anything else about this week,

14 we'll go on to consider hearings for the autumn. And really, the ball is

15 in your court, Mr. Kovacic. Can you tell us what you propose?

16 MR. KOVACIC: Your Honour, if I may. As I said earlier, we will

17 reorganise ourselves during August because there were some new issues in

18 the Defence and we had to change many things. However, I think that for

19 all practical aspects, of course, the main issue is time, some time frame

20 in which the Court will expect us to present our case.

21 At this point of time, I am quite confident that we will be

22 capable and that we are ready to present our case in -- I'm talking now

23 about September time, about four to five weeks. So time --

24 JUDGE MAY: Let me interrupt you for one matter and it's this:

25 That there has been a change in the time table, not a significant one, but

Page 23532

1 one involving two days, two or three days at the end of September. Have

2 you got -- have you had a copy of the new calendar?

3 MR. KOVACIC: Yes, Your Honour. We saw that, and I don't think

4 that that could tremendously change the --

5 JUDGE MAY: I wonder if I could ask for one, if one's available,

6 please. Thank you very much. Yes, it's that we'll not be sitting on the

7 2nd of October or the morning of the 3rd of October. I think that's

8 really the only significant change. And there's a Plenary being arranged

9 for one afternoon in September and I think on the 15th of September, if my

10 recollection is right, we are sitting in another case. Yes, we've got

11 another case to deal with.

12 So there's the loss of about three days in all. But looking at

13 the time which is available, four to five weeks should take you roughly to

14 the middle of October. Would that seem a realistic estimate?

15 MR. KOVACIC: It does seem realistically, very much, Your Honour.

16 Even though we were considering to ask the Chamber to give us one short

17 break sometime in the middle of time given to us for presentation of our

18 evidence, because then probably we will be much more productive or precise

19 in the second part, and then we still could be in the time frame you

20 roughly planned for our Defence. It would help us tremendously in

21 organising a matter and checking, once again, approximately how far the

22 case where are we, did we miss something, et cetera. There is no need to

23 explain that.

24 JUDGE MAY: So that would be after, roughly, two and a half weeks

25 to three weeks.

Page 23533

1 MR. KOVACIC: Something like that, yes.

2 JUDGE MAY: Let us look. If you've got the calendar in front of

3 you, we can actually look at the days. I can't make any decisions today,

4 but at least we'll know what your submissions are.

5 [Trial Chamber confers with legal

6 officer]

7 JUDGE MAY: Looking at the mathematics of it, it appears that by

8 the 28th of September, you will have had 16 days, allowing for half days

9 and this sort of thing, and the days where we are engaged on other

10 matters, that is just slightly over three weeks. There will then be a

11 break because we're not sitting on the Friday, the 29th so in fact it fits

12 in with your submission. We're not sitting on the Monday, October 2nd.

13 We are not sitting at the moment on the morning of the 3rd. No doubt we

14 could accommodate you by taking the afternoon too. If, then, you -- if we

15 did that, that would leave you with -- so you've virtually got a week

16 off. You would then have two and a half weeks in which to conclude your

17 case. Would that accommodate your suggestion?

18 MR. KOVACIC: Absolutely, Your Honour.

19 JUDGE MAY: Well, it's not for me to decide by myself, but it

20 seems a sensible solution and we'll let you know on Friday whether we're

21 going to do that.

22 Do you think then -- well, you would effectively have had five and

23 a half weeks which should be ample for you to finish your case if what you

24 say is accurate which I have no doubt it is. And then we would aim to

25 finish your case by the 20th of October.

Page 23534

1 MR. KOVACIC: Yes. That is our plan and, of course, I cannot tell

2 you now 100 per cent but we are doing -- we are trying, indeed, to

3 organise our Defence in a way to do that within that time, and I'm sure

4 that we will be able to do that.

5 JUDGE MAY: Thank you. You will obviously provide summaries of

6 those witnesses who are going to give evidence in September as soon as

7 possible and certainly a fortnight before the hearing. Are you in a

8 position to tell us how many, roughly, witnesses, you think you might now

9 be calling?

10 MR. KOVACIC: I would not like, Your Honour, to commit myself too

11 much on numbers because we see that a certain number of witnesses will be

12 introduced through the affidavits. And that is, indeed, the main thing we

13 are doing in restructuring the list. We will be able to do that during

14 the recess, as you said, at least 14 days before we started. So we will

15 file revised list of the witnesses and, of course, we are not still sure

16 which witnesses we may use in the form of introduction of the transcripts

17 from other cases. There are some which obviously could save us two or

18 three witnesses.

19 JUDGE MAY: The sooner, if I might say, you get that in hand, the

20 better. If you can do that after the recess so that we have the

21 opportunity to consider it. This is the transcript witnesses.

22 MR. KOVACIC: You mean during September or today?

23 JUDGE MAY: No, no, not today. But if, during the recess, you

24 could get in hand the transcript witnesses that you want so that we can

25 consider it at a fairly early stage and you, if necessary, can call the

Page 23535

1 witnesses if the transcripts are not admitted.

2 MR. KOVACIC: Surely. We will try to do that on the very early

3 phase of September case.

4 JUDGE MAY: Yes. Thank you. Do you think on that time table,

5 because I'm going to turn to the Prosecution next, there is a chance that

6 you might finish your case before the 20th of October so that if

7 necessary, we could start calling -- or the Prosecution could start

8 calling their rebuttal case?

9 MR. KOVACIC: Your Honour, in this phase, it is really difficult

10 to say, and I wouldn't like to be committed.

11 JUDGE MAY: Very well.

12 MR. KOVACIC: But there is a chance. I really cannot tell you how

13 high or how low. Of course, as soon as we see how fast we are

14 progressing, then probably we will inform the other party as soon as we

15 make any judgement, forecast. But I'm a little bit afraid that it will be

16 a little bit too early to tell anything more specifically.

17 JUDGE MAY: Thank you. Is there anything else you want to raise,

18 Mr. Kovacic?

19 MR. KOVACIC: I did plan for this morning, but now we are not in

20 session, but just for your information, Your Honour, we would like to

21 raise also a question which we mentioned once just shortly, but now I

22 started it and I would like to argue on that, appearance of Mr. Blaskic as

23 a witness in our case on -- just on a very brief limited fact.

24 I would ask the Court to establish the rules for that so we can

25 talk to Blaskic Defence counsel and see whether they will comply.

Page 23536

1 It is -- I will not argue that, of course, now, but it is very

2 important for us related to the planning of the witnesses, because it's

3 one fact which could very easily be confirmed by Blaskic and very

4 complicated, if not impossible, if we are trying to prove that indirectly

5 by some other stories.

6 JUDGE MAY: Have you discussed this with the lawyers for

7 Mr. Kordic?

8 MR. KOVACIC: I did not discuss that yet with Kordic. I discussed

9 it briefly with Blaskic lawyers. (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 JUDGE MAY: Just one matter. It may be helpful if you talked to

18 both Mr. Naumovski about this, and also the Prosecution, to see if there

19 can be some measure of agreement about it. I'm not sure it's a matter

20 which the Trial Chamber has to rule on, but we would hear argument.

21 There's something I'm going to ask the legal officer.

22 [Trial Chamber confers with legal

23 officer]

24 JUDGE MAY: Mr. Kovacic, I've had a word with the legal officer

25 and it may be helpful if you spoke to her. It may be possible to --

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Page 23538

1 MR. KOVACIC: Certainly I will, Your Honour.

2 JUDGE MAY: -- agree something. (redacted)

3 (redacted)

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17 (redacted). So I'd prefer to see that in writing, if

18 Mr. Kovacic is able to assist, but I'll discuss it with him today, of

19 course.

20 As to the position of the Cerkez witnesses, we would very much

21 like and would be assisted by a list of the witnesses that the Cerkez

22 Defence intends to call and we'd like that list as soon as possible,

23 without prejudice to the fact that some of them may not turn up. We quite

24 understand that listed witnesses can't necessarily all attend, or don't

25 necessarily all attend, but our preparation is made very much easier by

Page 23539

1 advance notice, for two reasons: One, because you can prepare the

2 witnesses or prepare for the witnesses; and two, because we can then more

3 helpfully partition up the material to be put in cross-examination between

4 witnesses who we know, or at least reasonably expect to be coming, as

5 opposed to having to try and put it all to the same witness.

6 I remind the Chamber again that the Prosecution gave six weeks'

7 witness lists and more; indeed, in November of last year gave a final list

8 effectively for all witnesses until April. So I would ask Mr. Kovacic to

9 give us a list as soon as may be and not simply wait until two weeks

10 before the sitting days, especially since in the summer most members of

11 the team will be away, for some or most of the time, from The Hague.

12 On the question of the timetable, obviously if there is any time

13 in October to call rebuttal evidence, we will do our very best to have

14 rebuttal evidence available to be called then. Before I come to that,

15 though, I should cautiously remind the Chamber that there were a couple of

16 witnesses intended to be called by the Chamber itself that were going to

17 take some time. There are witnesses, like the tape witness, to be

18 recalled as part of the Prosecution's case, effectively. No question of

19 them being rebuttal witnesses. In particular, the tape witness has to be

20 recalled because he wasn't fully and properly cross-examined at the time.

21 We haven't yet discovered his availability for September. We did

22 discover that he wasn't available for any of the time up and until the end

23 of these sittings. And in any event, it didn't look very likely that we

24 would be able to accommodate him, given the full Cerkez timetable. But

25 those witnesses also do have to be accommodated.

Page 23540

1 JUDGE MAY: Yes. But the tape witness, I should have thought,

2 could well be interposed at a convenient time.

3 MR. NICE: Yes, certainly. As soon as we can find a convenient

4 time for him. And of course the Witness AO has to come back as well.

5 That's another witness who the Chamber has ordered should return to give

6 evidence further in light of other documents that were served.

7 JUDGE MAY: Talking of the Chamber's witnesses, it may be

8 convenient -- again, this is subject to availability -- to look at the

9 week of the 16th of October for them, which would be the very last week of

10 the Cerkez Defence.

11 MR. NICE: Yes.

12 JUDGE MAY: But again one would have to see how that works.

13 MR. NICE: If I can help, I know the Chamber was going to turn to

14 me about rebuttal evidence. I stand by my earlier promise to notify the

15 Chamber and Defence as soon as I know that I intend to seek to call

16 evidence in rebuttal. I remind Your Honour that I've always expressed

17 concern about the potential for a substantial amount of material needing

18 to be dealt with, both because of the discovery of documents in Zagreb and

19 maybe for other reasons. And very anxious though I am personally to

20 finish this case on the date given, effectively given in this schedule, I,

21 of course, have to reserve my position.

22 The documents, as the Chamber knows, are still being produced at a

23 fairly substantial rate and are being translated as swiftly as the

24 institution's systems allow. We are, I think, particularly with

25 Mr. Kovacic, concerned to ensure that all parties have the same documents

Page 23541

1 coming from this particular source, and I hope we can arrange that that

2 does happen. But nevertheless, it may take some time to produce these

3 documents simply as part of the rebuttal evidence.

4 As to when I'm going to be able to give you and Defence counsel

5 formal notification of what I expect to lead, I can't really put a date on

6 it. I can simply say as soon as I possibly can, in everybody's interest,

7 not least ours.

8 JUDGE MAY: Mr. Sayers raised last week the possibility of a

9 pre-rebuttal conference. It seems a sensible idea, and that would at

10 least concentrate minds.

11 MR. NICE: Can I respectfully suggest that the break in the

12 Cerkez, the timing of the break in the Cerkez case, that five-day period,

13 the beginning or end of that period might be a sensible time. Because if

14 Cerkez is stocktaking then, it might be sensible indeed, I suppose,

15 immediately after the break, if Cerkez is stocktaking and able to give

16 then an estimate of how much of the remaining time will be required, that

17 would be a sensible time or it might be a sensible time for us to give our

18 position as then understood and it would give us a time to work to.

19 So if I understood Your Honour correctly, can I propose that it's

20 when we resume -- assuming that the Chamber of Your Honour and Your

21 Honour's colleagues makes the decision you've hinted at as a possibility,

22 can I suggest that the rebuttal Status Conference is timetabled for the

23 day that we start sitting, which would be, I think, the 4th of October or

24 possibly the 3rd.

25 JUDGE MAY: We shall be sitting again on the 4th if we don't sit

Page 23542

1 on the afternoon of the 3rd.

2 MR. NICE: Yes.

3 JUDGE MAY: It may be proper to deal with this when the Chamber is

4 fully constituted.

5 MR. NICE: Yes.

6 JUDGE MAY: But that can be added to the list of things to be

7 dealt with on Friday. Speaking for myself, I shall need to consider very

8 carefully the extent and scope of rebuttal evidence, but I shall say no

9 more. It will be a matter for the Trial Chamber to rule. But let's not

10 argue the matter now.

11 MR. NICE: I have to say, I wouldn't have expected Your Honour to

12 express a different view, and I will be mindful of it. Nevertheless, we

13 shall see.

14 JUDGE MAY: Anything else that anybody wants to raise? Very

15 well. We'll sit again tomorrow at half past 9.00.

16 --- Whereupon the Status Conference adjourned

17 at 10.35 a.m.