Tribunal Criminal Tribunal for the Former Yugoslavia

Page 113

1 Thursday, 26 October 2000

2 [Pre-Trial Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.00 p.m.

6 JUDGE HUNT: Call the case, please.

7 THE REGISTRAR: Yes, Your Honour. The case number, IT-97-25-PT,

8 the Prosecutor versus Milorad Krnojelac.

9 JUDGE HUNT: Yes. For the Prosecution, the appearances, please?

10 MS. UERTZ-RETZLAFF: For the Prosecution today appear Peggy Kuo,

11 Bill Smith, Gina Butler, and my name is Hildegard Uertz-Retzlaff.

12 JUDGE HUNT: Yes. And for the accused?

13 MR. BAKRAC: [Interpretation] On behalf of the accused, we have

14 lawyer Miroslav Vasic, the co-counsel, and lawyer Mihajlo Bakrac, the lead

15 counsel of the accused Mr. Krnojelac.

16 JUDGE HUNT: Thank you.

17 Mr. Krnojelac, are you able to understand the proceedings and hear

18 them in a language which you understand?

19 THE ACCUSED: [Interpretation] Your Honour, I am able to follow the

20 proceedings in a language which I understand.

21 JUDGE HUNT: Thank you very much. You may sit down.

22 This is the Pre-Trial Conference required by Rule 73 bis.

23 Mr. Bakrac, I'm very grateful to you for having got your pre-trial

24 brief filed yesterday and, indeed, in sufficient time for us to be able to

25 read it last night. There are a couple of questions, though, I'd like to

Page 114

1 ask you about it.

2 From page 17 onwards, you have, as I understand it, set out what

3 you say is the real issue in the case, and that is your client's

4 responsibility for what happened in the KP Dom, and if I may say so,

5 you've stated that very clearly. And I also understand why you may not

6 have been able to deal in this document with the particular factual

7 matters which have been raised by the Prosecution.

8 But we do have the report from the Prosecution as to the matters

9 which are admitted and those which are contested. Have you got that

10 document with you?

11 MR. BAKRAC: [Interpretation] Your Honour, I am not quite sure

12 which document you are referring to. Do you mean the stipulations or the

13 pre-trial brief itself, the Defence pre-trial brief?

14 JUDGE HUNT: I'm sorry. This is a document entitled "Prosecutor's

15 Submission Related to Rule 65 ter (E)(ii) and (iii)." It was filed on the

16 16th of October.

17 MR. BAKRAC: [Interpretation] Yes, we do have that document. May I

18 just take a few moments to find it, please, Your Honour.

19 JUDGE HUNT: Of course.

20 MR. BAKRAC: [Interpretation] Yes, I have it before me, Your

21 Honour.

22 JUDGE HUNT: May I remind you that the Rules relating to the

23 pre-trial brief required you to state not only what matters you took issue

24 with in the Prosecutor's pre-trial brief, but in case of each such matter,

25 the reason why you do take issue with it. No doubt you'll tell us that in

Page 115

1 a document later, but I'd like to know a few of those answers from you

2 orally.

3 Would you turn to page 20 of that document.

4 MR. BAKRAC: [Interpretation] Yes.

5 JUDGE HUNT: Fact number 176, it reads: "The 29 detainees listed

6 in Schedule C to the indictment are dead."

7 Now, you have taken issue with that. Do you have some evidence

8 that they are still alive?

9 MR. BAKRAC: [Interpretation] Your Honour, for the moment we do not

10 have proof of that, but the evidence provided by the Prosecution,

11 according to our own analysis, are in contradiction to what is being

12 claimed in the indictment and in the additional documents supplied by the

13 Prosecution.

14 We consider that if the accused cannot state whether that is

15 correct or not, we cannot refute, we cannot deny, nor can we assert these

16 allegations. They are something that the accused does not know about, at

17 least as far as we, as his Defence counsel, are aware. In the course of

18 the proceedings, the Defence will attempt to ascertain whether these

19 claims are, indeed, correct or not by conducting its investigation in due

20 course.

21 For the moment, the accused has no knowledge of these claims; that

22 is to say, he does not know whether the 29 detainees that are mentioned

23 did, indeed, lose their lives in the KP Dom.

24 JUDGE HUNT: Well, the answer to the question -- no, that's not

25 where they lost their lives. 176 merely says that they are dead. It's

Page 116

1 not introduced with anything about where the death occurred or as a result

2 of any particular action. It's simply that they are dead.

3 MR. BAKRAC: [Interpretation] Yes, Your Honour, but that is a fact

4 that the accused is not aware of. He has no knowledge as to whether they

5 are, indeed, dead, where they died and how they died.

6 JUDGE HUNT: So that the only reason you are not admitting that is

7 because you do not know; is that so? That can be answered yes or no.

8 MR. BAKRAC: [Interpretation] Yes.

9 JUDGE HUNT: You don't hold out any admission because you want the

10 Prosecution to call some particular witnesses that you need to

11 cross-examine in support of your own case; is that so?

12 MR. BAKRAC: [Interpretation] Well, Your Honour, yes, that is so

13 because -- and I don't know whether this is the right time and place for

14 us to analyse the evidence. But in the evidence provided by the

15 Prosecution, we found --

16 JUDGE HUNT: I'm sorry to interrupt. But you are not refusing to

17 make the admission because you need some witnesses to be called to assist

18 you in your case; that's my question. Is that so?

19 MR. BAKRAC: [Interpretation] That is so.

20 JUDGE HUNT: Well, then, would you have any objection to the

21 Prosecution proving their death by the tendering of the statements of the

22 witnesses upon which they rely rather than calling those witnesses?

23 MR. BAKRAC: [Interpretation] Your Honour, the Defence would like

24 to prolong the proceedings as little as possible. But I must go back to

25 some documents and facts which indicate the possibility that the death of

Page 117

1 some of these individuals was caused differently; that is to say, they

2 died in a different manner than is claimed in the documents provided by

3 the Prosecution.

4 JUDGE HUNT: Mr. Bakrac, I remind you once more: Fact number 176

5 does not assert any particular cause of their death, it simply asserts

6 that they are dead.

7 Now, if you have no reason to believe that somebody is still alive

8 and you do not wish to have any particular witnesses called so that you

9 could cross-examine them to assist you in your own case, what I'm asking

10 you is: Have you got any objection to the Prosecution merely tendering

11 the statements of those witnesses so that we don't have to call 27 or 29

12 witnesses here?

13 MR. BAKRAC: [Interpretation] We have no objection, Your Honour,

14 no.

15 JUDGE HUNT: Well, now, that's the first of them. Now, if I can

16 take you back earlier in the document, if you go to page 6 and the facts

17 stated there in 6, 7, and 8; that is, about the VRS, starting on the 14th

18 of May; there was the Foca Tactical Group on the 26th of June, 1992 and

19 was part of the VRS; and between the 7th and the 16th or the 17th of

20 April, 1992, the Serb military forces occupied Foca town. Now, do you see

21 those three?

22 MR. BAKRAC: [Interpretation] Your Honour, we received --

23 JUDGE HUNT: Do you see them? Just have a look at numbers 6, 7,

24 and 8. I think we will move a lot more quickly, Mr. Bakrac, if you just

25 answer the question.

Page 118

1 MR. BAKRAC: [Interpretation] Yes, I see them, Your Honour.

2 JUDGE HUNT: Now, in paragraph 88 of your pre-trial brief, you say

3 this: "The armed conflict between the Serb and Muslim local population

4 that started on the 8th of April, 1992 practically lasted until the 16th

5 of April, 1992, when Serb local population took over the town."

6 Now, in the light of that statement in your pre-trial brief, why

7 are 6, 7, and 8 in issue?

8 MR. BAKRAC: [Interpretation] Your Honour, it was just the dates

9 that were contested, but otherwise we can accept that. Because at the

10 moment when this stipulation was made, we did not have the exact dates and

11 were not able to check them out to see whether they were, indeed,

12 correct.

13 JUDGE HUNT: May we take paragraph 88 of your pre-trial brief as

14 an admission so that the Prosecution will not have to establish most of

15 the material in those three paragraphs, 6, 7, and 8?

16 MR. BAKRAC: [Interpretation] Yes, we may, Your Honour.

17 JUDGE HUNT: Thank you. If you turn to the next page, paragraph

18 25, it says: "The prison complex was surrounded by a wall of three

19 metres' height with barbed wire on top and watchtowers with

20 machine-guns."

21 Now, your client was the warden of KP Dom, as you say in your

22 pre-trial brief. Is he not able to tell us something about that, or to

23 admit part of it?

24 MR. BAKRAC: [Interpretation] Your Honour, in our pre-trial brief

25 we stated that the accused was, indeed, part of the -- a warden of part of

Page 119

1 the KP Dom, the civilian part, and that it existed for a number of years.

2 The fact that the KP Dom did, indeed, have a wall around it, the accused

3 can agree with that; but in the discussion that we had with the accused,

4 he told us that he cannot agree that there were machine-guns on the

5 watchtowers, that he saw that.

6 JUDGE HUNT: Well, then, you do admit, do you, that the prison

7 complex was surrounded by a wall of three metres' height with barbed wire

8 on the top?

9 MR. BAKRAC: [Interpretation] Yes, we can agree with that but with

10 the proviso, Your Honour, that we did not measure the wall. We don't know

11 for a fact that it was actually three metres, but, yes, approximately

12 three. We didn't go as far as ascertaining that particular fact, Your

13 Honour.

14 JUDGE HUNT: I don't think that that is the gist of what the

15 Prosecution was seeking.

16 Now, number 29: "The detainees were housed in a four-storey

17 building which consisted of prison cells and solitary confinement cells

18 three-by-three metres in size."

19 Now, in your pre-trial brief you have stated that your client

20 actually arranged the lease of part of the KP Dom to the military

21 authorities, so he would be able to say, would he not, which part of the

22 building the military authorities were using? So is he able to say that

23 they were housed in a four-storey building which consisted of common

24 prison cells and solitary confinement cells three-by-three metres in

25 size?

Page 120

1 MR. BAKRAC: [Interpretation] Your Honour, this assertion under

2 number 29 was not quite clear to the accused in view of the fact that we

3 do not know whether the size of the cells, that is to say, three by three,

4 only referred to the solitary confinement cells or to the other premises

5 where the individuals were detained.

6 The accused and his Defence counsel can agree that the detainees

7 were in a four-story building.

8 JUDGE HUNT: Which had both common prison cells and solitary

9 confinement cells?

10 MR. BAKRAC: [Interpretation] Yes.

11 JUDGE HUNT: Well, why weren't these made, Mr. Bakrac? I mean,

12 there are a lot more I can take you through. There doesn't seem to be any

13 real attempt to cooperate in this. I know you're not obliged to, but I'm

14 just wondering why this attitude is being taken? These are not important

15 matters but they save time in proof if there is a concession about them.

16 MR. BAKRAC: [Interpretation] Your Honour, it was not our intention

17 to make your work more difficult but to facilitate the work of the Court,

18 to arrive at the truth in the simplest and easiest possible way.

19 However, the way the questions were raised and the stipulations

20 made, the accused feels, and the Defence counsel feels, that they were not

21 complete and would lead to other conclusions, and we were not able to give

22 clear-cut yes or no answers. And if we take this concrete example, and

23 indeed in the witness statements a number of witnesses say that the cells

24 were overcrowded, this could lead one to conclude that we were, in fact,

25 saying that all the cells were three by three metres in size, although

Page 121

1 that was not the case.

2 JUDGE HUNT: Mr. Bakrac, you could have made an admission without

3 the three by three metres. That's the point I'm making. You seem to be

4 putting the Prosecution to proof about things that cannot be in dispute.

5 You cannot say that they were three by three, but you can make an

6 admission about the rest of it.

7 MR. BAKRAC: [Interpretation] Yes, Your Honour, that is quite

8 right. But the time that we had at our disposal, with respect to the

9 different stipulations that were made, and provided to the Defence counsel

10 after the 28th of September Status Conference, and we did ask that this

11 deadline be moved by seven days, so it was our fault, and everything that

12 happened afterwards did not leave us enough time to discuss the

13 reformulation of some of the assertions and points raised with the

14 Prosecution. So I should like to state here that everything that can be

15 cleared up and that can lead to uncontested material, we shall do. But

16 the formulation was such that we could not provide yes or no answers

17 without additional explanations.

18 JUDGE HUNT: Well --

19 MR. BAKRAC: [Interpretation] And we presented these in our

20 response to the Prosecutor.

21 JUDGE HUNT: I'll take you only to one more. Number 34: "From

22 the 18th of April, 1992 until August 1993, the accused was the temporary

23 warden of the KP Dom."

24 Now, in your pre-trial brief, at paragraph 111, you describe him

25 as a temporary warden of KPD Foca, and in 104, you say he functioned until

Page 122

1 August 1993 as the warden. Now, what is it that you take issue with in

2 paragraph 34?

3 MR. BAKRAC: [Interpretation] Your Honour, perhaps this is the best

4 example of what I was trying to say a moment ago: that quite simply we

5 were not able to agree with the assertions made in the way that they were

6 formulated, without giving additional explanations to the yes or no

7 answers. We claim in our pre-trial brief that the accused was the

8 temporary warden in the period from the 18th of April to August 1992 when

9 he was formally appointed by the Ministry of Justice of the Republika

10 Srpska; that is the first point.

11 Secondly, we don't know what the Prosecution has in mind here

12 because we say that there were -- was duality in the authorities in the KP

13 Dom; that is to say, according to what the Prosecution put forward, do

14 they mean the KP Dom in its entirety or only the civilian part for which

15 we claim that the accused was the warden?

16 So those are the reasons for which we were not able to give yes or

17 no answers without giving additional explanations; and secondly --


19 MR. BAKRAC: [Interpretation] -- we considered that these facts and

20 this question, which is the crucial issue and will be the subject of proof

21 and we bring it up in the pre-trial brief because we wanted to bring

22 closer the concept and way in which we will conduct the accused's defence,

23 and of course we will provide sufficient proof and evidence to show when

24 he was the temporary warden and when he became the warden, and which part

25 of the KP Dom he was the warden of.

Page 123

1 JUDGE HUNT: You do say in your pre-trial brief that he was the

2 warden -- the temporary warden of KPD, Dom, Foca, just in those words, and

3 it's clear from your document that you're referring to what you would

4 regard as the civil part of it. But if you can talk to the Prosecution in

5 the time which is available, and there will be a lot of time available in

6 December, for example, and get a lot of these things sorted out, because

7 it is going to waste an enormous amount of time if you are going to take

8 the point that you don't know what is in the mind of the Prosecution.

9 You may rest assured that if the Prosecution tried to use a

10 concession by you that your client was the temporary warden of KP Dom

11 until August 1992, and thereafter the warden, in a way which would be

12 detrimental to your client, you can rest assured that the Prosecution will

13 not get very far. We all know what your case is now. In fact, that was

14 the point you were making during one of your many arguments on the form of

15 the indictment.

16 So if you can make those sorts of concessions, if you can go

17 through this document again and formulate a concession, it will save an

18 immense amount of time.

19 Now, may I turn, then, to the first 17 pages of your document, the

20 historical survey. Is the relevance of all of that directed to whether or

21 not this was an international conflict?

22 MR. BAKRAC: [Interpretation] Your Honour, if I may, I would like

23 to refer to what you said a moment ago. We shall, on our part, do our

24 utmost to allow everything that is not contested, and I thank you and

25 assure you that we shall do our best, and as you said the Chamber will

Page 124

1 take all the facts into account. But before our pre-trial brief, we were

2 not able to agree that the accused was the temporary warden from the 18th

3 of April to August 1993 [as interpreted], because quite simply it was

4 necessary to explain matters, how matters stood there. We were not able

5 to accept that for the reasons that we stated later on, but of course we

6 shall do our best along the lines of the suggestions you made in December,

7 that is to say, to reformulate certain questions so that they are not

8 contested to facilitate our work.

9 Now, as far as -- if I may go on, Your Honour. As far as what you

10 have just asked me, we felt that a brief historical overview from the

11 founding of the first Yugoslav state, when a state structure was given

12 shape and the communality of nations living together on that territory, we

13 considered that to be necessary for us to be able to understand the nature

14 of the conflict which broke out in 1992 on the territory of the former

15 Yugoslavia, which is why we're all here today, the results of that.

16 JUDGE HUNT: The answer to my question is: It is all directed, is

17 it not, to whether or not that was an international conflict?

18 MR. BAKRAC: [Interpretation] No. We claim the opposite, and in

19 the text of the pre-trial brief, we consider that the Foca area,

20 regardless of the decisions that might have already been made here, should

21 be viewed as a special status and viewed in a special sense. Precisely

22 because we wanted, in this background -- by providing this background and

23 introduction, we wanted to show the ethnic structure and the life that the

24 belligerent parties led before they became belligerent; and that no other

25 relevant force took part here or from another state.

Page 125

1 JUDGE HUNT: Your answer is: It is all directed to that one

2 issue. You say it was not an international conflict because this was

3 something which grew up spontaneously within the area, and any use of

4 other troops was at the request of and not under the orders of some other

5 state. That's what you've put in your pre-trial brief.

6 MR. BAKRAC: [Interpretation] Yes, we claim that it was not an

7 international conflict.

8 JUDGE HUNT: And that's the relevance of the first 17 pages of

9 your pre-trial brief.

10 MR. BAKRAC: [Interpretation] We considered that it was necessary

11 for the pre-trial brief to show something that we shall go on to prove by

12 other means.

13 JUDGE HUNT: Mr. Bakrac, I still want an answer to my question.

14 You can't put something into your pre-trial brief unless it's relevant,

15 and I'm trying to find out what its relevance is it. Now, is its

16 relevance solely to this issue of whether or not the conflict was an

17 international or an internal one?

18 MR. BAKRAC: [Interpretation] Yes, exclusively that issue, to show

19 that it was an internal conflict.

20 JUDGE HUNT: Now, how had you intended to prove it?

21 MR. BAKRAC: [Interpretation] We intended to prove it on the basis

22 of documents. We have been promised these documents; we hope to get

23 them. And an expert witness who would also show -- that is to say, we

24 would call expert witnesses to discuss this subject and to show how things

25 stood.

Page 126

1 JUDGE HUNT: Thank you very much, indeed.

2 Ms. Uertz-Retzlaff, if all of that is going to go to the issue of

3 whether or not there was an international conflict and you will have to

4 lead an enormous amount of evidence to meet it, why are you relying on

5 Article 2 at all? Every one of the counts which is pleaded based on

6 Article 2 is replicated under either Article 3 or Article 5? Why do we

7 need to go into this huge issue in this case?

8 MS. UERTZ-RETZLAFF: When we filed the indictment, we simply made

9 this decision that we wanted to also include Article 2 charges.

10 JUDGE HUNT: I know that. But now, seeing that this is going to

11 be a fairly major issue on something you don't need to prove, do we need

12 to rely on Article 2?

13 MS. UERTZ-RETZLAFF: That is at least our position right now.

14 JUDGE HUNT: May I suggest that you reconsider that? You see,

15 there's got to be a real issue here on cumulative convictions, and if you

16 put it forward on the basis that you simply want as many convictions as

17 you can get, I don't think that's going to be the law.

18 MS. UERTZ-RETZLAFF: Your Honour, we actually thought that to

19 prove international armed conflict wasn't that complex in relation to the

20 Foca case, because first of all in relation to the time period from April

21 to mid-May, we have the international armed conflict and I don't think

22 that is really a problem. We will -- it's not difficult to prove that the

23 JNA was involved as a major player, involved in Foca at the time, and even

24 involved in establishing the camp as such.

25 JUDGE HUNT: But you can see that this is going to be disputed in

Page 127

1 this case.


3 JUDGE HUNT: Why do we need to spend time on proving something you

4 do not need to prove?

5 MS. UERTZ-RETZLAFF: We actually thought we would not spend too

6 much time because all we need is an expert, one expert and the documents.

7 JUDGE HUNT: Please. However long you are going to take, it's

8 going to take a sizable amount of time when both parties have dealt with

9 it - there's been evidence heard and there's argument upon it - if it's

10 something which the Prosecution does not need and, even if it is

11 established, may not obtain convictions on.

12 MS. UERTZ-RETZLAFF: Your Honour, it's an office-wide policy of

13 the Prosecutor's Office to include Article 2 charges. And what we can do,

14 we can reconsider it, we can discuss it, and then we will make our

15 submission.

16 JUDGE HUNT: When you are discussing it, and I'm sorry to bring it

17 up in this way, but you will remember that the Trial Chamber does have

18 certain powers about avoiding a needless consumption of time. This is not

19 a trial involving what has been termed a "big fish." It's an important

20 case; I'm not trying to say otherwise. But we have an awful lot of other

21 cases on the list that do involve big fish which really have to come on

22 for hearing, and if we are going to be put to dealing with issues we don't

23 have to determine, it's not really helping the Tribunal. The

24 Prosecution's policy is going to have to undergo a fairly major rethink

25 anyway if this question of cumulative convictions raises its head, as it

Page 128

1 will in this case.

2 MS. UERTZ-RETZLAFF: Yes, Your Honour, we are aware of this. Let

3 me point out one thing: As you have seen in the Kunarac/Kovac/Vukovic

4 case, we didn't include any Article 2 charges because we didn't find -- in

5 that case, we didn't find it proper. But in this case, with this accused,

6 we thought that he was one of the major players on the ground and he's not

7 such a small fish like the other ones, and therefore we had included it.

8 But I can say that we will reconsider it and we will come up with a

9 suggestion maybe withdrawing counts very soon.

10 In relation, actually, to the next couple of weeks in this trial,

11 these matters will not be addressed by the witnesses called in the next

12 three weeks; it was always planned for the end of trial. So I think we

13 have some time to discuss it in the office and come up with a solution

14 which will shorten the trial.

15 JUDGE HUNT: I'm very grateful to hear that. You realise, don't

16 you, that we will not be sitting during December because one of the Judges

17 will be away.

18 Now, you have got a lot of witnesses who are going to be called in

19 relation to the same issue. Most of them deal with various issues and not

20 just the one, I realise that. But is there any way in which you might be

21 able to select your witnesses for particular issues? Perhaps call your

22 three best witnesses on brutal living conditions and your three best

23 witnesses on forced labour, and this sort of issue, so that we see how we

24 go in the cross-examination. So that if it turns out, after hearing the

25 cross-examination, it's not a matter very seriously in dispute, it may be

Page 129













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Page 130

1 that you need not lead evidence from every witness on each of those

2 issues.

3 MS. UERTZ-RETZLAFF: Yes, Your Honour, we actually have planned

4 that. We will hear altogether 52 detainees and we will not ask all of

5 them extensively on all points. But what we cannot do is we cannot drop

6 any of them because of these very specific incidents in the schedules.

7 The witnesses that we call, there is not one of them who speaks to

8 all of these incidents. So we have to have all of these detainees here to

9 speak so that we have all the incidents of all schedules covered at least

10 once.

11 JUDGE HUNT: Oh, yes.

12 MS. UERTZ-RETZLAFF: That is what we plan to do. But, of course,

13 let's say in the first few -- in the first few testimonies, we will

14 concentrate on, let's say, the structure in the prison, on the living

15 conditions, on these aspects; with the later witnesses, we will drop it or

16 just let them say a few words to this.

17 JUDGE HUNT: But you do understand, having read the Defence

18 pre-trial brief, that the real issue in this case is his responsibility

19 for what happened with the military officers within the prison. That is

20 obviously the major issue; it was raised, as I recall, very early during

21 one of the form of the indictment arguments, and it is now put forward as

22 the major issue. It may be that there will be little issue taken for some

23 of, what we might call, the basic facts in the case, and if that turns

24 out, you may be able to trim your evidence considerably.

25 MS. UERTZ-RETZLAFF: Your Honour, that is why we had proposed

Page 131

1 these admitted facts according to the indictment. We had hoped that the

2 basic crime would simply not be in dispute, that the Defence would not

3 discuss -- want to discuss with us each of the single incidents but may

4 say, "This may have happened. We do not contest it; we only contest his

5 role in this." But this didn't happen.

6 As you have suggested, and I think we can do it, in December we

7 can discuss again and find out if, for instance, these schedules could be

8 admitted, that things like this happened.

9 JUDGE HUNT: Yes, but you may not get a concession in precisely

10 the terms of the indictment. That does not matter if the basic fact is

11 sufficient for your purposes.

12 Now, perhaps there has been an overly technical view taken by the

13 Defence. But if between you, you can get the general gist of the basic

14 facts proven so they are no longer a real issue in the case and we are

15 left then with the real issue, the case will move along a lot more quickly

16 without not a lot of unnecessary evidence.

17 MS. UERTZ-RETZLAFF: Yes, that's correct, Your Honour.

18 JUDGE HUNT: Now, there are at least two witnesses with pseudonyms

19 here that are very familiar from the Kunarac case. Have you spoken to the

20 Defence about proving their evidence in chief by tendering the transcript

21 of their evidence in the Kunarac case and having them here for

22 cross-examination?

23 MS. UERTZ-RETZLAFF: We have not discussed this matter. I

24 actually wanted to raise it today. It's actually five witnesses, five

25 witnesses from the Kunarac case who are on our witness list, and what we

Page 132

1 had planned was to simply tender their transcript, the video of their

2 testimony in the Kunarac case, and then only address a few additional

3 matters closely related to this accused and the KP Dom, and some incidents

4 in the KP Dom. That is actually what we would suggest to Defence counsel,

5 and of course the witnesses will be here for cross-examination. Actually,

6 next week we have one of these witnesses here, that is, the witness

7 Avdic.

8 JUDGE HUNT: Such a procedure would be well and truly within the

9 authority of the Aleksovski evidentiary appeal, where the hearsay basis of

10 the transcript that was tendered was accepted as being a correct way of

11 going about it, but with the addition that the Defence here would be given

12 the right to cross-examine.

13 I'm sure Mr. Bakrac is listening to what I say, but between you, I

14 would hope that there would be an agreement along those lines. That will

15 also save an immense amount of time.

16 MS. UERTZ-RETZLAFF: Yes. We have put in a request to the

17 Registrar's Office to provide the videotapes to the Defence counsel and

18 the accused so that they can watch them beforehand and make their decision

19 on it, and also prepare for the cross-examination.


21 MS. UERTZ-RETZLAFF: Because we didn't want to have this all

22 repeated here in the courtroom, but simply let them prepare on the basis

23 of these documents and the videotape.

24 JUDGE HUNT: In your list of witnesses there are a number who are

25 said to describe background matters. Is that going to be the attack upon

Page 133

1 the civilian population?

2 MS. UERTZ-RETZLAFF: Yes, Your Honour. Yes. But it's all

3 detainees. Except for Witness 96 and Witness 192, this is additional

4 witnesses for the attack on the Muslim population throughout several

5 municipalities. But all the others -- the others are detainees.

6 JUDGE HUNT: Well, on my count, three of them seem to be called

7 solely for the background, that's FWS-35, -47, and -96. Is their evidence

8 going to add to the evidence of the detainees?

9 MS. UERTZ-RETZLAFF: 35, you're right. But what were the other

10 ones?

11 JUDGE HUNT: 47.

12 MS. UERTZ-RETZLAFF: 47 is something different. It's related to

13 the detaining of the doctors, detaining doctors in the KP Dom and the

14 knowledge of the accused of this. The appeals of the public and the

15 radio -- the media is such to release the doctors, at least the doctors

16 and the nurses. It's for this aspect this witness is important.

17 JUDGE HUNT: Perhaps that is not made very clear in the summary.

18 But I accept what you say.

19 MS. UERTZ-RETZLAFF: Yes, Your Honour, it is in the summary. It

20 is mentioned that the doctors were detained and that other doctors

21 appealed over radio to release these people from KP Dom, at least the

22 doctors and the other medical staff. It's in the summary.

23 JUDGE HUNT: Perhaps you have a different one to mine. It's

24 certainly not in my summary. Anyway, let's assume that you're right about

25 that. But do you see what I'm getting at? We really do not need a lot of

Page 134

1 repetition. Certainly, you want to prove a widespread or a systematic

2 character of the attack, so that will require a number of witnesses. But

3 again we don't need every witness to talk about that particular witness'

4 experiences.

5 Another one which slightly worries me, a number of them talk about

6 a pattern of interrogation of torture and disappearances. How are they

7 going to give evidence of a pattern? Is this on some sort of hearsay

8 basis?

9 MS. UERTZ-RETZLAFF: It is understood the pattern of how things

10 happened in KP Dom. The witnesses who will speak about the pattern of

11 what happened, they will describe what happened in the evenings, what they

12 themselves saw happen.

13 JUDGE HUNT: All right. That makes it clearer. But a pattern, I

14 suppose, can be described by a few witnesses rather than many, again.

15 MS. UERTZ-RETZLAFF: That is correct, Your Honour.

16 JUDGE HUNT: Might I suggest that if you call another witness who

17 is able to talk about a pattern, about that pattern, you should just

18 simply ask him whether he's able to add to it if asked, and then you can't

19 have any comment made about the fact that you have only asked very few

20 witnesses about it and that the fact that you hadn't asked the other

21 witnesses about it indicates they could not have given some evidence to

22 assist your case. That should shorten the matter as well.

23 MS. UERTZ-RETZLAFF: The reason why we have so many witnesses

24 mentioned here for describing a pattern is that the witnesses saw

25 different things, and especially they saw different people being led away

Page 135

1 to the administration building, being beaten and disappear, and that is

2 why there are so many. Because they all speak together -- when you put

3 all these witnesses together, you receive actually the picture that is

4 shown in the schedules. If you take only a few of them, you get only a

5 few incidents in the schedules, and that is the reason why there are so

6 many.

7 JUDGE HUNT: Well, you understand the nature of the Trial

8 Chamber's concern about repetitive issues -- I'm sorry, repetitive

9 evidence about the same issue, and you will keep that, I hope, very much

10 in mind.

11 MS. UERTZ-RETZLAFF: Yes, Your Honour.

12 JUDGE HUNT: Now, may I ask you a few questions about the

13 protective measures you seek. I'm not sure why you need an order that the

14 previous order of the 6th of October, 1998 continue. It's not limited by

15 any time or anything. It will continue, will it not? Why do you need a

16 special order?

17 MS. UERTZ-RETZLAFF: This motion was designed like all the other

18 motions in the Kunarac case. It was just a repetition. And in the

19 Kunarac case, it was done this way because what we had requested in the

20 beginning was protective measures for witnesses in pre-trial stage, and

21 therefore we thought now we have to ask it for the trial stage. That is

22 the only reason, actually.

23 JUDGE HUNT: I thought that protective measures continued

24 forever. If you make an order for protective measures, they're not to be

25 disclosed -- their identities are not to be disclosed, that's the end of

Page 136

1 it. Nobody can ever disclose it until somebody orders that they can.

2 MS. UERTZ-RETZLAFF: We understood it differently. We thought it

3 was limited to the pre-trial stage, and therefore we repeated it.

4 JUDGE HUNT: There's nothing in the terms of the order itself

5 which suggests that. It was made during the pre-trial stage. But if

6 protective measures are ordered, they remain in force. It's dealt with in

7 a recent decision of this Trial Chamber in Regina v. Talic.

8 However, there are a few queries. You have asked in relation to

9 FWS-71 for facial distortion measures but you haven't asked for a

10 pseudonym.

11 MS. UERTZ-RETZLAFF: Yes, Your Honour, it's because the witness

12 did not request it. The witness said -- he's not living in Bosnia, I must

13 say. This witness says, "I'm not afraid that someone learns my name, but

14 I'm afraid that the neighbours in the area I live now will suddenly

15 recognise me."

16 JUDGE HUNT: It's a different name.

17 MS. UERTZ-RETZLAFF: Yes. The name for him wasn't an issue

18 because the people wouldn't know his name, but his face, if it gets seen

19 on TV --

20 JUDGE HUNT: I do understand. It was just picked up when we were

21 looking through the details of it.

22 Now, in your witness list, you refer to FWS-96 as requesting

23 facial distortion and a pseudonym, but the motion does not refer to

24 FWS-96.

25 MS. UERTZ-RETZLAFF: Your Honour, 96 is actually a witness from

Page 137

1 the Kunarac case. That is one of the -- not a rape victim herself but

2 some of the women detained, and it's simply what she had requested at that

3 time.

4 JUDGE HUNT: Yes, but obviously she would want to have the same

5 protection here, would she not?


7 JUDGE HUNT: Well, then, should we add 96 to the request?

8 MS. UERTZ-RETZLAFF: Oh, yes, sorry, this is an oversight.

9 JUDGE HUNT: That's all right.

10 MS. UERTZ-RETZLAFF: You are right.

11 JUDGE HUNT: Now, in the Kunarac orders, there was usually an

12 order that they be screened from public view as well as facial

13 distortion. You know, the business of pulling all the blinds down as they

14 come and go. You would want that too as well, wouldn't you?

15 MS. UERTZ-RETZLAFF: Yes, Your Honour.

16 JUDGE HUNT: I see. All right. Thank you for that.

17 Well, I'll just see whether Mr. Bakrac can give us some assistance

18 on the protective measures. Mr. Bakrac, I know that the order gives you

19 14 days, but obviously if these witnesses are going to be called next

20 week, we have got to know what you're attitude is towards protective

21 measures for them. Have you any objection to them?

22 MR. BAKRAC: [Interpretation] Your Honour, the Defence will try to

23 demonstrate to you now that it is prepared to cooperate. Perhaps we had

24 some objections in principle to protective measures. We believe that

25 perhaps in this way the principle of equality of arms may be brought into

Page 138

1 question here. However, we will agree to these protective measures

2 because we believe that it is sufficient that each of the witnesses will

3 actually be present here and be confronted with the accused. They will

4 see the accused and the accused will see them. So, because of that, we

5 will not object to these protective measures.

6 JUDGE HUNT: You will know who the identity of the witnesses are

7 in every case, there has been no suggestion that you should not. I don't

8 quite know what your reference to equality of arms is. If you want

9 protective measures, you have a right to seek them in relation to your own

10 witnesses as well, and they will be considered on their merits. And if

11 they fear reprisals, then usually the Trial Chamber will grant those

12 protective measures, if there is some objective basis for the fear, and

13 that perhaps is not too difficult to establish in some areas. But you

14 need not worry about equality of arms. I think we're all fairly aware

15 that you are entitled to that.

16 So you have no objection to what is sought by the Prosecution

17 here?

18 MR. BAKRAC: [Interpretation] Your Honour, that is exactly the

19 reason why we do not object, because we expect that, perhaps, we too may

20 have witnesses who will seek protective measures, and we trust that the

21 Trial Chamber will know how to ensure the equality of arms of both parties

22 in this trial, and also to guarantee the rights of the accused.

23 JUDGE HUNT: Mr. Bakrac, I'm grateful for you for saying that you

24 are showing your cooperation. I'm sure you will show your cooperation

25 throughout the trial. What the Trial Chamber is concerned about is to

Page 139

1 grant both parties a fair trial and a speedy one, and it won't be very

2 speedy if we are dealing all the time in technicalities on either side.

3 That is the only concern that we have. But I'm very grateful to you for

4 your statement that you will certainly demonstrate that you are being

5 cooperative.

6 I'm sorry. Yes?

7 MR. BAKRAC: [Interpretation] Your Honour, with your permission, I

8 would just like to point out that we need to have an abundance of caution

9 here because these are serious charges that the accused is facing, and

10 whatever may appear to be misunderstanding can usually be traced back to

11 this overabundance of caution. We're trying to protect his interests.

12 Thank you.

13 JUDGE HUNT: An abundance of caution is all right, but

14 overabundance of caution is perhaps going too far.

15 Is there anything else you want to raise at this stage?

16 MR. BAKRAC: [Interpretation] Your Honour, we submitted a request

17 to the Registry that the proceedings be taped, both video and audio, and

18 we were told today that there is certain special technical needs for this

19 and perhaps this is the right moment to ask again for the taping of the

20 proceedings because this may help us with our analysis in preparation for

21 our defence.

22 If have you any influence over the Registry, perhaps we would like

23 to urge you to help us have this request granted. On the other hand, a

24 colleague of ours said that she will provide us videotapes of the

25 witnesses who had testified in the Kunarac case. We would also like to

Page 140

1 get these videotapes in a timely fashion, especially because we see that

2 in the first week of the trial there will be one witness called who had

3 already testified in the Kunarac case.

4 JUDGE HUNT: As I understand it, Mr. Bakrac, all proceedings are

5 taped. Is what you're after a copy of the tape for yourself? Is that

6 what you want?

7 MR. BAKRAC: [Interpretation] Yes, that is correct.

8 JUDGE HUNT: I see. I don't know whether we have any power over

9 that, but I'm sure that the Registrar will give it proper consideration.

10 And if there is any problem, you should come back to us and we will then

11 see what we can do.

12 But the most important thing from your point of view at the moment

13 is to obtain the transcripts at least of the evidence of the witnesses

14 from the Kunarac trial so that you can see what their evidence was, and

15 then we would certainly urge you to agree to those transcripts being

16 tendered rather than the witness giving all of their evidence again, and

17 then you will have the right to cross-examine them. It seems a very

18 sensible suggestion on the part of the Prosecution that we deal with it in

19 that way. It will save an immense amount of time and your client will be

20 properly protected because he will have the opportunity of seeing the

21 witnesses having given their evidence, and also you will be

22 cross-examining them.

23 MR. BAKRAC: [Interpretation] Your Honour, I have to point out that

24 we have received the transcripts. When I talk about the video material,

25 it is just in response to my learned colleague's remark that the

Page 141

1 videotapes would be provided to us in addition to the transcripts. We

2 believe that this is a reasonable course of action, that we should receive

3 the transcripts and hopefully the promised video material, and obviously

4 with the right to cross-examine witnesses on them. But we believe that it

5 is not necessary to repeat everything that they had already testified to

6 in the Kunarac case. Obviously the crucial thing is our right to

7 cross-examine them.

8 JUDGE HUNT: Yes, of course.

9 Now, is there anything else you want to raise at this stage?

10 MR. BAKRAC: [Interpretation] No, Your Honour.

11 JUDGE HUNT: Thank you very much. Well, Ms. Uertz-Retzlaff, is

12 there some request already made for the tape of that one witness for next

13 week?

14 MS. UERTZ-RETZLAFF: Yes. We have actually requested the tapes

15 for all five of these witnesses to be provided, especially -- yes, of

16 course, the tape in B/C/S language.

17 JUDGE HUNT: Oh, yes.

18 MS. UERTZ-RETZLAFF: The request was made on the 23rd of October.

19 JUDGE HUNT: That was only three days ago. But will you follow up

20 and perhaps ask the technical people to give priority to the one witness

21 you're calling next week?

22 MS. UERTZ-RETZLAFF: Yes, Your Honour.

23 JUDGE HUNT: Yes. Thank you very much.

24 Now, is there anything else you want to raise at this stage?

25 MS. UERTZ-RETZLAFF: Yes, I would like to raise the matter of this

Page 142

1 documentation that is actually standing in front of you.

2 JUDGE HUNT: I've looked at it.

3 MS. UERTZ-RETZLAFF: These are the trial binders, the trial

4 binders similar to the ones provided in the Kunarac case. Eleven trial

5 binders, copies for the Defence and for you, Your Honours, with 393

6 items. They include the statements of the witnesses and also the

7 documents that the Prosecution intends to tender through these witnesses.

8 And I must say, that a lot of these binders are related to the

9 international armed conflict issue.

10 JUDGE HUNT: I rather suspected that.


12 JUDGE HUNT: And perhaps -- I see you have your investigator as

13 the first witness. Perhaps she could not tender that on Monday and come

14 back if necessary later.

15 MS. UERTZ-RETZLAFF: The investigator has to come on Monday, I

16 must say, because she goes on maternity leave. But we can actually

17 restrict it to the items not related to the international armed conflict.

18 JUDGE HUNT: Yes, that's what I meant. And then if necessary, she

19 could be brought back to tender those if there is going to be some issue

20 about them.

21 MS. UERTZ-RETZLAFF: Yes, Your Honour.

22 JUDGE HUNT: All right. Now, is there anything else that you want

23 to do other than to promise that those will be delivered to us, those

24 volumes?

25 MS. UERTZ-RETZLAFF: Yes, they will be delivered right now, after

Page 143

1 the Status Conference. And there is nothing else.

2 JUDGE HUNT: Thank you very much. Now, we'll be sitting four days

3 next week and the week after, and then we're having the argument in

4 Kunarac, and then there are, I think, two days the following week, because

5 we've got the Plenary meeting --

6 MS. UERTZ-RETZLAFF: Your Honour, I think there is another full

7 week.

8 JUDGE HUNT: Is there?

9 MS. UERTZ-RETZLAFF: Yes. After the week with Kunarac, there is a

10 full week and then the two-day week.

11 JUDGE HUNT: You are right. I'm sorry. Yes, another full week

12 and then two days, and then we'll be resuming at the beginning of term

13 which is, I think, on the 8th of January, the Monday anyway. Right.

14 Well, we're very grateful to counsel for their assistance, and we hope

15 that the cooperation will continue throughout the trial, and we look

16 forward to seeing you on Monday.

17 We'll adjourn now.

18 --- Whereupon the Pre-Trial Conference

19 adjourned at 3.00 p.m.