1 Tuesday, 21 June 2005
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.06 a.m.
5 JUDGE ORIE: Good morning.
6 Madam Registrar, would you please call the case.
7 THE REGISTRAR: Good morning, Your Honours. This is the case, the
8 Prosecutor versus Momcilo Krajisnik.
9 JUDGE ORIE: Thank you, Madam Registrar.
10 The next witness to be called, Mr. Gaynor, is a protected witness.
11 He would be examined in closed session?
12 MR. GAYNOR: That's correct, Your Honour.
13 JUDGE ORIE: Then we turn into closed session.
14 [Closed session]
11 Pages 14892-14953 redacted. Closed session.
4 [Open session]
5 THE REGISTRAR: We are in open session, Your Honour.
6 JUDGE ORIE: Mr. Tieger, the next witness to be called, I was
7 informed that you'd like to seek protective measures for the next witness.
8 MR. TIEGER: That's correct, Your Honour. I should also advise
9 the Court that we are prepared to proceed with that witness tomorrow
10 morning at 9.00 a.m., as it has been scheduled but not today. We can
11 advise the Court in the interim, if the Court permits, of the protective
12 measures, the specific protective measures involved, if there's any
13 question about those.
14 JUDGE ORIE: Yes. I take it that the protective measures you
15 would like to discuss them in private session?
16 MR. TIEGER: That's correct, Your Honour, although I would have to
17 break to find out if there's been any modification of the proposed
18 protective measures in any respect and to ensure that the measures we're
19 proposing to the Chamber are accurate in all respects.
20 JUDGE ORIE: Yes. Of course witness protection is to some extent
21 a public matter and to some extent it's not. It's a public matter to the
22 extent that the public should be informed about the reasons. The Chamber
23 has been informed -- Mr. Stewart, and I take it that you're aware of the
24 reasons why the Prosecution seeks protective measures?
25 MR. STEWART: Well, yes, Your Honour, I had a discussion and then
1 Mr. Harmon as a result of that discussion sent me a memo of the e-mail of
2 the main points. Yes, Your Honour.
3 JUDGE ORIE: Yes. It has not been formally been filed. An oral
4 application could perhaps be made in such a way that the Chamber could
5 give its decision on the basis of that oral request and to what extent
6 that should be done in private session, I leave that to you, Mr. Tieger.
7 MR. TIEGER: Your Honour, I'm grateful for that opportunity. As
8 mentioned, I would appreciate the opportunity to break briefly for the
9 reasons I mentioned and -- before I make application orally to move into
10 private session, if necessary, and identify the basis for the
12 JUDGE ORIE: Yes. The Chamber might even deliver a decision right
13 away after that because we were informed about the reasons and we were
14 also informed that there was no objection from the Defence. So the
15 Chamber has already --
16 MR. TIEGER: Certainly, Your Honour.
17 JUDGE ORIE: -- formed an opinion, but nevertheless for -- to have
18 everything on the record, we would like the request to be made orally.
19 And after that short break then, the Chamber would also like to give a
20 decision in relation to a videolink requested by the Prosecution.
21 We'll then -- how much time would you need, Mr. Tieger?
22 MR. TIEGER: I'm sure no more than 10 minutes is necessary,
23 Your Honour.
24 JUDGE ORIE: We'll then adjourn for 10 minutes.
25 --- Break taken at 11.50 a.m.
1 --- On resuming at 12.07 p.m.
2 JUDGE ORIE: Mr. Tieger.
3 MR. TIEGER: Thank you, Your Honour. If we could move into
4 private session at this time.
5 JUDGE ORIE: We'll move into private session.
6 [Private session]
15 [Open session]
16 JUDGE ORIE: We are back in open session. The Chamber will now
17 deliver its decision on the Prosecution's application, which was made in
18 court this morning, and which was not opposed by the Defence, for the
19 evidence of Witness 680 to be heard in closed session. And I add to it,
20 with pseudonym.
21 As the Chamber has said on numerous occasions, the party seeking
22 protective measures for a witness must show that such measures are
23 justified by demonstrating the existence of an objectively grounded risk
24 to the security or welfare of the witness (or the witness's family),
25 should it become known that the witness gave evidence before the Tribunal.
1 It will usually be sufficient if it is shown that a threat was made
2 against the witness or the witness's family. In addition, the Chamber
3 must be satisfied that protective measures less restrictive than those
4 sought would not address the security concerns of the witness.
5 In the present instance, the Prosecution observed that given the
6 position formerly held by the witness, the nature of his testimony, in
7 particular the fact that it may implicate high-level Bosnian Serbs, will
8 likely antagonise persons residing in the former Yugoslavia, to a security
9 risk. Furthermore, the Prosecution submitted that lesser protective
10 measures than closed session and pseudonym would be inadequate in the case
11 of Witness 680 because his testimony is so unique that it would, of
12 itself, reveal his identity.
13 In light of these arguments, the Chamber considers that the
14 requirements for the requested protective measures have been met and
15 orders that Witness 680 testify in closed session and under pseudonym.
16 This concludes the Chamber's decision.
17 I would also like to deliver a decision pursuant to Rule 71 of the
18 Rules. This decision addresses a Prosecution motion dated the 16th of
19 June, of this year, in which the Prosecutor requests that Witness 031 be
20 heard via videoconference link.
21 The reasons for this request are described in the motion and
22 relate to the personal circumstances of the witness.
23 Rule 71 bis states that, and I quote: "[A] Trial Chamber may, in
24 the interests of justice, order that testimony be received via
25 videoconference link."
1 In the present case, the Chamber considers that the personal
2 circumstances of the witness, as indicated by the Prosecution, provide
3 strong grounds for the witness to be allowed to give testimony via
4 videoconference link. The Chamber notes that the Defence does not object
5 to such a course of action in respect of Witness 031.
6 Furthermore, on numerous occasions, including in this Chamber's
7 decision of the 4th of October, 2004, and in the decision of the 28th of
8 May, 1997, in Delalic, and others, this Tribunal has found that a party
9 suffers no material disadvantage by examining a witness via videolink.
10 In light of these considerations, the Chamber finds that it is in
11 the interests of justice that Witness 031 be heard via videoconference
13 This concludes the decision pursuant to Rule 71 bis in relation to
14 Witness 031.
15 Is there any other procedural issue to be raised?
16 MR. TIEGER: No, Your Honour, not from our side.
17 MR. STEWART: Nor from the Defence side, Your Honour.
18 JUDGE ORIE: Then I'd like to make two observations. First,
19 although the next witness has been scheduled for tomorrow, if we go
20 quicker than expected, of course, it's always a pity if we can't use the
21 time, and the Prosecutor certainly is well aware of the fact that 22nd of
22 July is 22nd of July. So therefore, to the extent possible, it is of no
23 use I think at this moment to start a long debate on whether we could have
24 done it another way, but the Prosecutor is just reminded to use the time
25 as efficient as possible.
1 Another matter which I would just like to briefly mention is about
2 your cross-examination, Mr. Krajisnik. In many of the questions you have
3 put today to the witness, one could wonder what made you believe that the
4 witness would have had knowledge about it, apart from perhaps from a few
5 questions. You should be aware that if you ask the question whether he
6 knows that and then there follows a line, and if the witness says, No, I
7 don't know that, that we have at that moment nothing in evidence. That
8 should be perfectly clear to you and I think it's also perhaps wise to
9 consider why a certain witness -- why you would expect that he has
10 knowledge of certain matters, and perhaps the best way to find out is to
11 ask him first whether he has any knowledge of certain events and not just
12 to ask the witness whether he knows that. Because if you ask a witness
13 whether he knows that a person was born near Zvornik or wherever, that
14 does not establish that that person was born there. As a matter of fact,
15 we know nothing more than we did before. This is just a general
16 observation the Chamber would like to make in respect of the way you have
17 put additional questions to witnesses in cross-examination.
18 We'll adjourn until tomorrow morning, and I announce to the
19 parties that arrangements have been made that if on Thursday morning we
20 would find that we are not able to finish the next witness by Friday, that
21 we'll have some additional time.
22 Mr. Stewart, we gained some time today. I hope that we will not
23 ask for more time on Thursday.
24 MR. STEWART: Your Honour, can I ask something about that.
25 JUDGE ORIE: Yes.
1 MR. STEWART: About the timetabling, if we are at the possible on,
2 say, Thursday at quarter to 2.00 or it becomes apparent as we approach
3 that time on Thursday that the use of the afternoon session for which
4 provisional arrangements could be made would enable us to finish the
5 witness on Thursday, then I'm sure Your Honour can see, certainly on our
6 side, it may be true to the Prosecution, it may be true for the Trial
7 Chamber, but -- it would be more helpful then, assuming that there isn't a
8 problem of readiness, but it would be more helpful to use that
9 provisionally arranged session and finish the witness than for everyone to
10 come back on Friday.
11 JUDGE ORIE: I think that would certainly be something we could
12 consider as a matter of fact, not to say we need only two hours more, so
13 let's wait until tomorrow. We'll certainly then -- upon an application
14 we'll consider then to finish the witness on that same Thursday.
15 MR. STEWART: Yes. Thank you, Your Honour.
16 JUDGE ORIE: Yes. We'll adjourn until tomorrow morning, 9.00,
17 same courtroom.
18 --- Whereupon the hearing adjourned at 12.24 p.m.,
19 to be reconvened on Wednesday, the 22nd day of
20 June, 2005, at 9.00 a.m.