1 Thursday, 2 March 2000
2 [Pre-Trial Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 5.02 p.m.
6 JUDGE MUMBA: Would the registrar please call
7 the case.
8 THE REGISTRAR: [Interpretation] Case
9 IT-96-23-PT, the Prosecutor against Dragoljub Kunarac,
10 Radomir Kovac, Zoran Vukovic.
11 JUDGE MUMBA: These proceedings are the
12 Pre-Trial Conference for the trial of Kunarac, Vukovic,
13 and Kovac, which is scheduled to start on the 20th of
14 March this year.
15 May I have the appearances, please. For the
17 MR. RYNEVELD: If it please the Court. Dirk
18 Ryneveld, along with my associate Peggy Kuo, Hildegard
19 Uertz-Retzlaff, and Daryl Mundis for the Prosecution.
20 We're prepared to proceed today for the Pre-Trial
22 JUDGE MUMBA: For the Defence.
23 MR. PRODANOVIC: [Interpretation] Your
24 Honours, I am Slavisa Prodanovic, Defence counsel for
25 the accused Dragoljub Kunarac, assisted by Mara
1 Pilipovic who is also counsel in this matter.
2 JUDGE MUMBA: On behalf of Mr. Kovac.
3 MR. KOLESAR: [Interpretation] Good afternoon,
4 Your Honours. Attorney Momir Kolesar, from Zemin, and
5 I represent the accused Radomir Kovac.
6 JUDGE MUMBA: On behalf of Vukovic.
7 MR. JOVANOVIC: [Interpretation] Good
8 afternoon, Your Honours, I'm attorney Goran Jovanovic,
9 from Zemin, representing Zoran Vukovic.
10 JUDGE MUMBA: Thank you very much. I would
11 like to find out from the accused whether they can hear
12 these proceedings. I'll start with Mr. Kunarac. Can
13 you hear me in a language you understand?
14 THE ACCUSED KUNARAC: [Interpretation] Yes,
15 Your Honour, I can hear you and understand you.
16 JUDGE MUMBA: Thank you. Mr. Kovac.
17 THE ACCUSED KOVAC: [Interpretation] Yes, Your
18 Honour, I can hear and understand you.
19 JUDGE MUMBA: Thank you. Mr. Vukovic.
20 THE ACCUSED VUKOVIC: [Interpretation] Yes,
21 Your Honour, I can hear you and understand you.
22 JUDGE MUMBA: I would like to welcome
23 Judge Pocar who has joined our Chamber, starting from
24 this case. I take it that our working papers for this
25 trial for the indictment is the indictment confirmed on
1 1st December 1999, and for Vukovic, the redacted and
2 confirmed indictment of 5th October 1999, and it is
3 annexed to the Prosecutor's pre-trial brief filed on
4 21st February. Am I correct? The Prosecution.
5 MR. RYNEVELD: Yes. Thank you, Your Honour.
6 JUDGE MUMBA: For the pre-trial briefs for
7 Kunarac and Kovac, we have the Prosecutor's brief of
8 9th December. Is that correct? The pre-trial brief of
9 9th December?
10 MR. RYNEVELD: Yes. That's also correct,
11 Your Honour.
12 JUDGE MUMBA: And for Kunarac, we have the
13 pre-trial brief filed -- the first one filed on
14 28th February 1999, and then the second one combining
15 Kunarac and Kovac filed on 28th February, and this one
16 incorporates the first one which was filed on
17 20th February 1999. Am I correct, Mr. Prodanovic?
18 MR. PRODANOVIC: [Interpretation] Yes, Your
20 JUDGE MUMBA: Mr. Kolesar, is that correct?
21 MR. KOLESAR: [Interpretation] Yes, Your
22 Honour, everything is all right.
23 JUDGE MUMBA: Coming to Mr. Vukovic, the
24 Prosecutor's pre-trial brief is the one filed on
25 21st February for Zoran Vukovic.
1 MR. RYNEVELD: That is also correct, Your
3 JUDGE MUMBA: And the Defence counsel for
4 Vukovic, the pre-trial brief by the Defence is the one
5 filed on 28 February?
6 MR. JOVANOVIC: [Interpretation] Yes, Your
8 JUDGE MUMBA: The first item I would like to
9 address is Mr. Zoran Vukovic's counsel about his
10 readiness for trial. We have had the motions, and
11 finally the Trial Chamber decided that he would be
12 tried together with Kunarac and Kovac. I would like to
13 find out from the Defence counsel whether he has
14 explained to the accused persons about his rights and
15 the implications of the waiver of his rights, and
16 whether he is ready to start trial on the 20th of
18 MR. JOVANOVIC: [Interpretation] Your Honour,
19 we are absolutely prepared to start on the 20th of
20 March. I have explained the consequences of my
21 client's waiver to him, and he is in full agreement
22 with it.
23 JUDGE MUMBA: I would like to ask Mr. Vukovic
24 himself to confirm what his Defence counsel has said.
25 Is that right? You have understood what your
1 Defence counsel has said about your readiness to
2 proceed on 20th March? Is that correct, Mr. Vukovic?
3 THE ACCUSED VUKOVIC: [Interpretation] Yes,
4 Your Honour.
5 JUDGE MUMBA: Thank you very much. So we
6 shall proceed with the general issues.
7 We haven't received any document on agreement
8 of contested matters with the Prosecution and Mr. Zoran
9 Vukovic, according to Rule 65(H). I'm wondering
10 whether anything is being done in this regard.
11 MR. RYNEVELD: You're absolutely correct,
12 Your Honour, that we haven't actually had a document,
13 but we have had discussions with counsel just the other
14 day, and I believe it was yesterday or perhaps the day
15 before, I've lost track, we had discussions with
16 Mr. Vukovic in the presence of Mr. Prodanovic and -- I
17 don't know if Mr. Kolesar was there at that meeting,
18 but it is our understanding that he is agreeing to the
19 same admissions and stipulations as entered into by
20 counsel for Mr. Kunarac and Mr. Kovac.
21 There is no document that has yet been
22 created because that is just a very recent discussion
23 that we've had an opportunity to have, but I anticipate
24 that we'll be able to produce something very soon.
25 JUDGE MUMBA: Before the trial date.
1 MR. RYNEVELD: Oh, absolutely. Probably by
2 next week.
3 JUDGE MUMBA: Thank you. Counsel for Zoran
4 Vukovic, is that correct?
5 MR. JOVANOVIC: [Interpretation] Your Honour,
6 it is correct that several days ago we held a meeting
7 with our colleagues from the Prosecution, and it is
8 correct that we have agreed on all the stipulations
9 already agreed to between the Prosecution and the
10 Defence counsel for Mr. Kunarac and Mr. Kovac. If
11 these are all the stipulations agreed to so far, we are
12 in full agreement with those.
13 The Prosecution has submitted no other
14 matters that would relate only to Mr. Vukovic, and we
15 are, therefore, in agreement with all other aspects so
17 JUDGE MUMBA: Thank you very much. So we'll
18 go through what we expect to be the procedure at the
20 First of all, I'll deal with the question of
21 witnesses. We have received the lists from the
22 Prosecution and the updated lists since the joinder of
23 the trials, and what I want to discuss with the
24 Prosecution is the manner in which they will call their
1 Is there any design? Is there any sequence
2 in which the witness also follow each other according
3 to the counts we have on the indictments?
4 MR. RYNEVELD: These matters are always, of
5 course, subject to change due to the availability of
6 the various witnesses at the various times, and we have
7 also provided what we anticipate is a perhaps
8 optimistic trial schedule that we hope to be able to
9 follow, depending, of course, on how long they will be
10 subject to cross-examination. We can't predict.
11 However, to answer your question directly, we
12 propose to call the witnesses in the order that they
13 are, in fact, listed. You will, hopefully later today,
14 be in receipt of some binders of material which
15 actually will set out -- and I'll have my colleague
16 Ms. Kuo explain the contents of those binders. But the
17 reason I raise this is the evidence and the exhibits
18 have all been, shall we say, listed in the order that
19 we anticipate they will be tendered into evidence. You
20 will note, for example, that the first witness after
21 the opening will be Ms. Tej Thapa, who will introduce a
22 number of exhibits. This is to provide the framework
23 or background of exhibits to which other witnesses will
24 undoubtedly refer. Following that, we will start with
25 some background witnesses.
1 So we are trying to deal with this matter in
2 a logical sequence, but not in relation to specific
3 counts. It's very difficult. We have chosen, rightly
4 or wrongly, to do it in the order in which we have
6 JUDGE HUNT: Are you able to tell us what the
7 logic of that list is? If it's not following the
8 counts, what does it follow? What logic does it
10 MR. RYNEVELD: It is attempting to follow an
11 order which we think, chronologically, sets out the
12 incidents as we understand them to be. In other words,
13 we start with the background and then we deal with the
14 various witnesses who are the victims of these alleged
15 crimes and then conclude with some expert evidence and
16 at the very end we have, if necessary, Dr. Rath. It's
17 more or less set out in that record.
18 Now, we can, of course, within calling of the
19 victims, move those around perhaps in order to attempt
20 to deal with counts in particular.
21 JUDGE HUNT: Well, that's the best way of
22 dealing with it, if you can. I realise that some
23 witnesses may give evidence in relation to more than
24 one incident and that you'll have the usual problems
25 about getting your witnesses here when you want them
1 here. But so far as possible, is it not better, as a
2 matter of logic, to deal with them in the order in
3 which they've been pleaded? The way in which they've
4 been pleaded is obviously a matter to which some
5 consideration has been given.
6 MR. RYNEVELD: Absolutely.
7 JUDGE HUNT: And if we can deal with all the
8 witnesses relating to one particular incident in a
9 group, it would be far better than having to go through
10 and work out each time a witness is called to which
11 particular count he or she is giving evidence.
12 MR. RYNEVELD: It is my understanding, in
13 fact, that we will attempt wherever possible to adopt
14 that procedure.
15 Excuse me just one moment.
16 [Prosecution counsel confer]
17 MR. RYNEVELD: My colleague
18 Ms. Uertz-Retzlaff will indicate some further
19 indications as to how the order of witnesses is
20 proposed at the present.
21 MS. UERTZ-RETZLAFF: Your Honours, the order
22 of the witnesses is exactly according to the
23 indictment. For instance, after hearing the background
24 witnesses, you will hear those witnesses who were
25 detained in Partizan Sports Hall and who will talk
1 about what happened there and what happened to them.
2 But, of course, a few of the witnesses, like, for
3 instance, witness 75 or 87, will also talk to incidents
4 that occurred to them later when they were detained in
5 Karaman's house, when they were detained in the
6 apartments related to Mr. Kovac. That is the only part
7 where we come a little bit out of sequence because we
8 don't want to have these witnesses coming three times.
9 So it's all packed together according to the
11 JUDGE MUMBA: Thank you very much. I also
12 would like to observe that it is our practice in the
13 Tribunal that once a witness has made the solemn
14 declaration, that is, once the witness is in the
15 witness stage, and if we adjourn for any reason at all,
16 counsel will not be permitted to meet with that witness
17 until after the end of the examination-in-chief.
18 MR. RYNEVELD: As opposed to at the end --
19 the other practice with which I'm familiar is that the
20 witness cannot be approached once they're under
21 cross-examination. You're indication is at the moment
22 they've given evidence, even in chief, they cannot be
23 contacted. Do I understand that correctly?
24 [Trial Chamber confers]
25 JUDGE MUMBA: The other aspect about
1 witnesses we are expecting from counsel is that counsel
2 should prepare questions, or should prepare their
3 witnesses in such a way that they only discuss relevant
4 evidence. We are not likely to listen to a witness who
5 is left in the witness box to tell it all, as it were,
6 because quite a lot of irrelevance has come in, and
7 usually the witnesses, as you know, they don't know
8 what the Trial Chamber is looking for, and counsel
9 does. So we would appreciate it very much to make sure
10 that the witnesses are directed properly and they are
11 brief and to the point, so that we don't take too much
13 MR. RYNEVELD: Counsel is to have control of
14 their witness, in other words.
15 JUDGE MUMBA: Yes.
16 MR. RYNEVELD: Absolutely.
17 JUDGE HUNT: The idea, if I may say so,
18 Mr. Ryneveld, is for counsel who is taking the witness
19 to actually lead them to the particular evidence and
20 then let them give the evidence about that. But the
21 practice which seems to have developed in some Trial
22 Chambers of just saying "What do you want to tell us?"
23 is not helpful, in my respectful view.
24 If I may go back to the matter you raised,
25 Mr. Ryneveld, as to contacting the witnesses during
1 their evidence in chief or cross-examination. I must
2 confess I was slightly surprised by what the Presiding
3 Judge said, I think it's a matter which we'll have to
4 discuss, but my understanding of the general practice
5 is what you stated, frankly. But we'll see what we
6 should follow in this case.
7 JUDGE MUMBA: The other point about witnesses
8 is that I understand from the Prosecution that there
9 are some witnesses who are very vulnerable and who
10 would like to be screened during the trial, during the
11 time that they are giving evidence, such that they
12 don't have to look at the accused, as it were.
13 MR. RYNEVELD: There are a number of issues
14 about vulnerable witnesses which we will be addressing,
15 and before the close of these proceedings, we'll be
16 making another application in closed session dealing
17 with similar issues. But to answer your question now,
18 yes, there are some witnesses who are going to be
19 asking for either facial distortion or screens or
20 various methods of protecting their identities or their
21 vulnerability in not having to see the accused.
22 JUDGE MUMBA: We are familiar with the other
23 types of protection, voice distortion, the facial
24 distortion, and things like that, but I am particularly
25 concerned with those who do not want to see the face of
1 the accused, so that we have the screens prepared for
2 the trial and we are not delayed, so that the registrar
3 takes that into account when our trial starts.
4 MR. RYNEVELD: My understanding from my
5 colleagues confirms my view that there's only one
6 witness who has requested that, and that may be the
7 subject of discussion either now or at a later time.
8 But, yes, we will certainly make sure that that matter
9 is dealt with well in advance so that we're not wasting
10 the Court's time trying to set something up at the last
12 JUDGE MUMBA: Yes. Of course, you appreciate
13 the fact that the accused has to see the face, of
14 course through the screen, of the witness so that the
15 accused knows all the witnesses who will be giving
16 evidence here.
17 Now let's discuss exhibits. We have seen the
18 lists, and you have made a partial explanation.
19 Anything else you wish to say on the exhibits that the
20 Prosecution is going to produce?
21 MR. RYNEVELD: Just excuse me one moment.
22 [Prosecution counsel confer]
23 MR. RYNEVELD: I think this might be an
24 appropriate time for my colleague, Ms. Kuo, to actually
25 go through the trial binders, because the trial binders
1 that we have produced actually have a list of exhibits
2 and the order in which we intend to produce them. So
3 perhaps you might entertain her at this point.
4 JUDGE MUMBA: Yes, Ms. Kuo.
5 MS. KUO: Thank you, Your Honour. The
6 Prosecution has prepared a five-volume set of binders
7 for each of the Judges. Before you, you should have
8 volume 1, but we have all the other volumes here which
9 we can deliver to Chambers directly after this
11 If you permit, I can explain very briefly why
12 we've put them together and how.
13 JUDGE MUMBA: Yes.
14 MS. KUO: Our hope is that these binders will
15 assist both in the pre-trial preparation and during the
16 trial itself. They are not evidence. We understand
17 that the evidence, of course, is only what is tendered
18 in court through the witness and that will have the
19 official stamp of the Deputy Registrar.
20 These are copies of all the exhibits as we
21 know them now, and potential exhibits, so we hope that
22 this will aid the Court in preparation. We've also
23 made copies for Defence counsel, and we've shown them
24 all their copies, and they wish to pick them up
25 tomorrow. Defence counsel also has no objection to the
1 Court receiving these binders.
2 Two things are immediately noteworthy. One
3 is that they are confidential and we wish that all
4 rules of confidentiality apply. The witness names are
5 all given. In fact, we have produced two tables with
6 the pseudonyms and names of the witnesses for the
7 Court's convenience, and they are labelled at
8 subsections B and C.
9 In addition, we have produced, at the very
10 beginning, a schedule, as the Court was discussing
11 earlier with my colleague, a proposed trial schedule,
12 that sets out day by day which witnesses we intend to
13 call. It may be somewhat optimistic, but it indicates
14 that we should be done with all our witnesses by mid or
15 late May.
16 What we've done is gone through the order of
17 the witnesses in which we hope to call them and
18 attached their exhibits, the exhibits that we wish to
19 tender through them, and the exhibits are numbered
20 sequentially, 1 through 170. There will, of course, be
21 changes as they come up, but we hope that this will be
22 the order in which they are produced.
23 We've given every exhibit an exhibit number.
24 It doesn't mean that we're going to ask for every
25 exhibit that has a number to be entered in evidence,
1 but it's simply a way of identifying what we're all
2 talking about.
3 During the trial, there are some things, for
4 instance, documents, which, if everybody has their copy
5 of the binder that particular day, we won't have to
6 spend time in the courtroom passing out copies. We can
7 say, "We're talking now about Exhibit 1," and everybody
8 will have it.
9 In addition, the maps we have produced, to
10 the extent that we could, in technicolour, and we have
11 plastic sleeves that contain the maps. The actual
12 exhibits themselves, the actual evidence, may be
13 bigger, but we've made them smaller for the Court's
14 convenience. And also there's a portion where we have
15 a photo album of various places in Foca that may be of
16 interest to the Court as the trial progresses. It is
17 somewhat overinclusive. It has pictures of places that
18 the witnesses may or may not mention, but we've given
19 you the entire photo album. It's also available in
20 colour, if the Court wishes, but we've made black and
21 white copies.
22 The only things that are not contained in
23 here at the moment are copies of videotapes, which we
24 think -- we have transcripts of, for instance, the
25 interviews with Mr. Kunarac, and you'll have those, but
1 if you wish to have the videotapes, we can provide
2 those as well. There are also videotapes of places in
3 Foca, various other things, and we've marked them so
4 the Court knows that it will be a videotape, but it's
5 not contained in here.
6 So it's our hope that this will make things
7 go much more smoothly and quickly in court. There are
8 other things, for instance, manuals, military manuals,
9 and we've reproduced them in whole, although the
10 witness, as we call them, may only refer to a few
11 articles or so. So it's meant, again, to be an aid to
12 the Court, a reference tool during the trial, and if
13 you have any questions about it -- we've tried to make
14 it very accurate, but we may have missed a page or two
15 through the photocopying -- please let us know, or if
16 there are questions about particular exhibits, please
17 let us know, and we'll accommodate you.
18 JUDGE HUNT: Some of the photographs have not
19 reproduced terribly well. Some of them have and some
20 of them haven't. If they're important, we may have to
21 have something better than you've given us here.
22 MS. KUO: Yes. We have the volume in colour,
23 and we can either produce a copy for each of the
24 Judges, if you wish, or one for the entire Chamber to
1 JUDGE HUNT: Let's see how we go. But there
2 are some there that obviously are only photostats and
3 they don't reproduce in very good detail. We may not
4 need the detail, so let's not burden you or us with
5 that just this moment, but let's say that you've got to
6 have them available when we do need them.
7 MS. KUO: Absolutely. What we can do, since
8 we do have it available, is we can provide the Trial
9 Chamber with one copy of the colour photographs for
10 reference, in case the Court wishes to have something
11 closer to the original.
12 And I guess one last thing is we apologise in
13 advance that we've recycled these binders, so they're
14 not in perfect condition, the outer binders, just due
15 to the resources we have available.
16 JUDGE MUMBA: The Court is very much aware of
17 the budget problems. Anything else on the exhibits?
18 MS. KUO: The only other thing is that we
19 hope, with the cooperation with the Deputy Registrar,
20 that as the trial progresses, the numbers that the
21 exhibits do receive correspond to the prenumbering
22 system we have here. So at the end of the day, at the
23 end of the trial, there may be gaps, of course, where
24 the exhibits are not entered.
25 One more thing that I think I should point
1 out. In the index, we have indicated the exhibit
2 number for identification, the witness name or
3 pseudonym through which we wish to tender this, the
4 description of the exhibit, and also at the very last
5 column that's left blank, we've entitled it "Objections
6 to Authenticity and Admissibility." Our understanding,
7 in our discussions with Defence counsel, has been that
8 for the bulk of the exhibits, they will not have an
9 objection on those grounds, but we've explained to them
10 also that should they have an objection, they can mark
11 it and then we can be pretty clear about which exhibits
12 we need to explain or defend.
13 I thought that was the last thing, but there
14 is actually one more thing, and that's that we have
15 included the witness statements for all the witnesses
16 that were available. So, for instance, witness 33 will
17 have her witness statement that was given to the OTP.
18 It does not mean that we wish to tender all these into
19 evidence, but it may become necessary, in the course of
20 trial, for the Prosecution, or perhaps the Defence may
21 wish to use that during examination of the witness. So
22 we have provided that.
23 JUDGE MUMBA: Thank you very much. I just
24 want to comment that it's very well that we have the
25 exhibits prepared as you have explained, and I do hope
1 that the registrar will assist in making sure that the
2 numbering is kept as it is by the Prosecution. Of
3 course, we shall have gaps in the cases of those which
4 will not be produced on various grounds.
5 I would like to find out from the Defence
6 counsel, Mr. Prodanovic, do you have any comments to
7 make on the exhibits so far that you have been provided
8 by the Prosecution, as they have explained?
9 MR. PRODANOVIC: [Interpretation] Thank you,
10 Your Honours. We have no comment to make. I should
11 just like to inform you that we have enabled the
12 Prosecution to talk to six alibi witness. We did this
13 15 days ago, and they held this conversation in
15 JUDGE MUMBA: Thank you. Mr. Kolesar, any
16 comments on the exhibits?
17 MR. KOLESAR: [Interpretation] No, Your
18 Honour. No comments.
19 JUDGE MUMBA: Defence counsel for
20 Mr. Vukovic.
21 MR. JOVANOVIC: [Interpretation] Your Honours,
22 we have no comments regarding this material. We
23 consider that it will be of great assistance to both of
24 us and the Trial Chamber. So we have no comments to
25 make or remarks as to how the Prosecution believe this
1 will function, but as far as the material itself
2 concerned and documents itself are concerned, we cannot
3 make any definitive statement because we haven't
4 received the material. We shall be receiving it
5 tomorrow. Thank you.
6 JUDGE MUMBA: I just want to make a few more
7 comments to the Prosecution, in particular, in the
8 process of producing these documents.
9 The Trial Chamber would not like to be hit
10 with documents which are not properly explained, so the
11 Trial Chamber will expect the Prosecution, during the
12 trial, to lead the witnesses to the relevant parts of
13 each document, pages if necessary, paragraphs if
14 necessary, and also, if possible, to the relevant
15 counts attaching those exhibits.
16 I would also like to explain to the Defence
17 counsels that I'm sure you are aware that the Rules on
18 cross-examination have been amended. Also, in
19 particular, in relation to exhibits, sometimes during a
20 trial an exhibit may be objected to by the Defence
21 counsel on various grounds but the Trial Chamber may
22 rule against them and admit the particular exhibit.
23 I would like to explain to the Defence
24 counsel that that is not the end of the matter. If the
25 Defence still feel that they cannot accept that
1 particular exhibit, they are still free to call
2 evidence during their time to discredit or undermine
3 the evidence in that exhibit and still put forward
4 their objection to it, because at the end of a trial,
5 during the discussion by the Trial Chamber, we still
6 have a second look at the exhibits, and after receiving
7 all the evidence, we do still evaluate the relevance,
8 the importance of those exhibits to the case.
9 So normally if you are ruled against on the
10 admission of any exhibit, that's not the end of the
11 matter. I would like that to be understood, because we
12 have had problems in previous trials on this issue.
13 I've been reminded by the senior legal
14 officer to ask Mr. Vukovic, in particular -- the
15 Defence counsel should be able to answer this -- have
16 you received the list of the exhibits?
17 MR. JOVANOVIC: [Interpretation] Yes, Your
18 Honour. I have received a list of exhibits from the
19 Prosecution. I received it on the 26th of February
21 JUDGE MUMBA: But you're saying that you
22 haven't actually seen the actual exhibits? The actual
23 documents, have you seen them?
24 MR. JOVANOVIC: [Interpretation] Your Honours,
25 I have seen those documents, yes, but what I said a
1 moment ago is that I have no comment to make to the
2 material that is to be handed over to us at some future
3 time, and I thought that that is what we meant, the
4 material that we are to be given by the Prosecution. I
5 have, of course, received the other documents. I said
6 so a moment ago when I received them. But as to the
7 other material, I don't know what it will contain, so I
8 cannot comment. As to what I have received, I have no
9 comment, no objections to make.
10 JUDGE MUMBA: All right. Thank you very
11 much. About the only other thing I wish to remind the
12 Prosecution of, and also the Defence, actually, is the
13 requirement of disclosure of exculpatory evidence,
14 Rule 68. I would like to say this is a continuing
15 obligation up to the judgement stage. So that if any
16 documents or evidence comes up, please do oblige and
17 give it to the relevant parties.
18 Expert witnesses. We are aware that all the
19 accused persons wish to cross-examine the expert
20 witnesses. Confirmation, please. Is that correct?
21 MR. PRODANOVIC: [Interpretation] I have
22 understood you to be speaking about expert witnesses.
23 JUDGE MUMBA: Yes. That's correct. That you
24 wish to cross-examine them. Expert witness, not ex
25 parte, which will be listed by the Prosecution.
1 MR. PRODANOVIC: [Interpretation] Yes, Your
2 Honour. We do intend to cross-examine the expert
3 witnesses. At this point in time, on the basis of
4 Rule 73(A), we are submitting an oral motion asking the
5 Trial Chamber to allow us to cross-examine the expert
6 psychiatrists, psychologists, and forensic
7 specialists. If you wish me to expound on that, I
8 shall do so.
9 JUDGE MUMBA: Yes, please.
10 MR. PRODANOVIC: [Interpretation] This request
11 is being tabled by us because we consider it to be very
12 important. We consider the testimonies on rape, on
13 other injuries should be examined and proved, and hear
14 the views of experts which will be founded following
15 the testimony of the witnesses and to have an
16 examination conducted as well as an examination of the
17 medical documentation, and the Defence feels that this
18 is of general importance for this Trial Chamber,
19 especially when we come to the question of rape and
20 torture, so that the -- and the counts of the
21 indictment against the accused with that respect.
22 So we cannot make any conclusions as to
23 serial consequences, whether psychological or physical,
24 on the basis of general premises, but that the
25 existence of these elements must be ascertained on the
1 basis of looking into each individual case and by
2 examining the witness. This request is considered well
3 grounded because there are several different
4 testimonies on the part of one in the same witness
5 which shows the events in a different light, and we do
6 not consider it to be contrary to Rule 96(E), which
7 provides for the fact that we shall not ask additional
8 examination of the witness.
9 The Defence considers that this refers to the
10 event itself and that the consequences of each of the
11 crimes must be assessed and examined, and this can be
12 done objectively by means of the experts.
13 To make myself clearer, we have received
14 material from the Prosecution. We have the statements
15 made by individual witnesses. For example, one witness
16 has given different testimony and statements, and the
17 Defence has amassed the statements given by such
18 witnesses to various humanitarian organisations, and
19 these statements differ each time they were given. So
20 we consider that with individual witnesses, it would be
21 a good thing to have psychologists and psychiatrists
22 present and forensic experts present as well.
23 JUDGE MUMBA: Yes. Thank you. Mr. Kolesar,
24 any comments on the similar issues?
25 MR. KOLESAR: [Interpretation] No, Your
1 Honour. The proposal tabled by the Defence counsel of
2 Mr. Kunarac, Mr. Prodanovic, is also the proposal of
3 the accused Kovac. That is to say, my own proposal and
4 the proposal of Mr. Goran Jovanovic, Mr. Vukovic's
6 JUDGE MUMBA: Any comments from the
7 Prosecution? I know that the Prosecution will lay
8 their case according to what they believe the necessary
9 evidence is. Any comments?
10 MR. RYNEVELD: No, Your Honour. Obviously
11 this is a matter entirely within the discretion of the
12 Court. If people ask leave for experts to be in
13 attendance -- of course, I don't know exactly to what
14 extent that they hope these psychologists or
15 psychiatrists to be of assistance. Obviously they
16 can't give opinions going to the ultimate issue but may
17 be of assistance to the Court and may explain, from
18 their point of view, a particular method of conduct by
19 a witness or attempt to assist you in explaining
20 witnesses' behaviour. As a matter of fact, that may
21 well be along the same lines as we may anticipate
22 calling our expert Dr. Rath.
23 Having said that, I don't think I can
24 particularly object. Just as the circumstances warrant
25 it, that's for the Court.
1 JUDGE MUMBA: Thank you.
2 [Trial Chamber confers]
3 JUDGE MUMBA: It's entirely up to the
4 Prosecution, like I said, how they decide to prove
5 their case. As usual, the Defence will also be
6 entitled to call expert witnesses, psychologists,
7 doctors, if they so wish. That should be decided as
8 the trial proceeds, and we will see whether or not the
9 Trial Chamber would like any experts at any stage of
10 the trial. Thank you.
11 The next item deals with protective
12 measures. I think we have discussed that, except that
13 I would like to emphasise that all the protective
14 measures about the identity, identifying marks, and
15 things like that for the witnesses are still in force
16 and must be observed by all counsel, particularly at
17 this stage, that they have been provided with all the
18 statements that are without redaction. So I expect the
19 Defence counsel, while they are investigating their
20 Defence and looking for their witnesses, they maintain
21 the confidentiality of all these documents.
22 While I note that we have now three accused
23 persons, and I would like the counsel to observe the
24 sequence in which the evidence will be given. With the
25 Prosecution, there is no problem because it is the
1 usual sequence under Rule 85. When we come to the
2 Defence case, we shall be able to discuss that during
3 the pre-Defence Status Conference so that we all
4 understand the sequence in which the Defence witnesses
5 will be called, according to the accused persons.
6 There is only one item I wish to discuss with
7 the Prosecution. In their pre-trial brief, regarding
8 the accused Zoran Vukovic, I think the pre-trial brief
9 filed on 21st February, if you have a copy, on page --
10 beginning from page 3. Item (C), which discusses
11 actions of the accused, paragraph 8, the sentence which
12 goes on to page 4, which reads: "The accused Vukovic
13 has also been identified as participating in the
14 killing of one of the older men at Buk Bijela".
15 I would like this cleared, because I am of
16 the mind to strike this sentence out because on the
17 indictment there is no charge for murder, and I don't
18 think that it would be right for the Prosecution to
19 bring this type of charge indirectly. Even though you
20 are trying to say that it will go to sentencing, it
21 can't, because it is a serious charge, and if the
22 Prosecution want to attach any importance to it at all
23 at any stage of the trial, including sentence, they
24 should have made it a charge in the indictment so that
25 the accused has an opportunity to deal with it.
1 So I'm striking that sentence out, including
2 the footnote.
3 MS. KUO: Your Honour, may I just briefly
5 JUDGE MUMBA: Yes.
6 MS. KUO: Thank you to the Court for pointing
7 that out to us, and in a way, we may have misspoken in
8 the pre-trial brief by indicating in the footnote that
9 this evidence would be produced for the purpose of
10 sentencing. In the body of the pre-trial brief, it was
11 intended to show that Mr. Vukovic was involved in the
12 attack on these villages and indeed the armed conflict
13 and the attack on the civilian population.
14 Our intention in bringing this evidence in is
15 primarily to show that he was present at Buk Bijela
16 when the civilians were rounded up. He knew that
17 things were happening to the civilians, crimes were
18 being committed against them, for instance, being
19 beaten up severely, and that people were killed.
20 So our intention wasn't to charge him with
21 the murder, and the reason we did not charge him with
22 the murder in the indictment is we do not believe, in
23 good faith, that we can prove it beyond a reasonable
24 doubt, but there is some evidence to show that he's
25 involved in all the things that are happening. So we
1 put in our footnote it would be there for sentencing,
2 but it would be more correct to say that we wish to
3 have this brought in to show that he is involved and
4 knowledgeable and part of the armed conflict, attack on
5 the civilian population. Whether or not it can be used
6 for sentencing I suppose is a matter we discuss
8 JUDGE HUNT: If you concede that you can't
9 prove it beyond a reasonable doubt, how can you
10 possibly bring it in for the purposes of sentencing?
11 MS. KUO: At the moment, we don't read the
12 Rules as requiring that sentencing matters be proven
13 beyond a reasonable doubt.
14 JUDGE HUNT: That's a very surprising
15 proposition, if I may say so. You can only be
16 sentenced for what you have been convicted for, and if
17 you haven't been convicted, you can't be sentenced for
19 MS. KUO: Perhaps I can clarify what I
20 meant. I didn't mean that he would be sentenced for
21 that but that it could be considered in the course of
22 sentencing as, for instance, an aggravating factor.
23 His involvement in other criminal acts could be
25 JUDGE HUNT: It's a fundamental rule, is it
1 not, of sentencing that matters of aggravation must be
2 established beyond reasonable doubt. There is no other
3 way in which it could be taken into account.
4 MS. KUO: Your Honour, I don't wish to speak
5 to that matter fully at this moment, only to say that
6 jurisdictions do differ on that.
7 JUDGE HUNT: That will be an exercise in
8 comparative law then, won't it.
9 MS. KUO: I'm sure it will be.
10 [Trial Chamber confers]
11 JUDGE MUMBA: The Trial Chamber is still not
12 convinced of the explanations, but we will deal with it
13 during the course of the trial, and we hope that the
14 Prosecution have been fairly warned about it.
15 I just want to find out from the Defence
16 counsel the state of the accused persons. Are they in
17 good health? Are there any other problems?
18 MR. PRODANOVIC: [Interpretation] As far as
19 Dragoljub Kunarac is concerned, the accused, he is here
20 and he can confirm that he has no problems at present
21 with respect to his health, and that he stands
23 JUDGE MUMBA: Thank you.
24 Mr. Kolesar.
25 MR. KOLESAR: [Interpretation] The accused
1 Radomir Kovac is physically and psychologically ready
2 for trial, to follow the proceedings in the normal
3 fashion, but we always have some small problem. As his
4 Defence counsel, I was appointed temporarily in the
5 case against Mr. Vujin. That case has been concluded,
6 but my client would like Mr. Milan Vujin to be on his
7 Defence team. And at the insistence of my client, I
8 spoke to Mr. Milan Vujin and I obtained the following
9 information from him, that he is ready and willing to
10 become a member of the Defence team as a co-counsel,
11 not to be paid for by the Tribunal, because Kovac and
12 himself are acquaintances from earlier on, and that is
13 why he is ready to take part in his defence, but that
14 his services will not be paid for by the Tribunal.
15 I should like to ask the Trial Chamber,
16 within the framework of its competencies and
17 authorities, to look into the matter with the Registrar
18 so that we can clear this matter up. We have 18 days
19 to go, and I don't have a co-counsel, a colleague, to
20 help me in the Defence case. Thank you.
21 I apologise. I wish to say one more thing,
22 if I may. I wish to say something else that was
23 conveyed to me. It was stated that in that case, he
24 would withdraw his appeal and he will pay the fine in a
25 shorter period as possible, and those are the words of
1 Mr. Milan Vujin, a lawyer, which I wanted to convey to
3 JUDGE HUNT: Well, that's very interesting.
4 If he withdraws his appeal, he remains convicted of
5 contempt of the Tribunal, and the Registrar is
6 instructed to strike him off the list as assigned
7 counsel. There is a problem about this. This has
8 already been discussed with the Registrar and, as I
9 understand it, the Registrar has made a ruling. I
10 thought I saw a ruling by the Registrar that she would
11 not permit him to be counsel whilst he stands guilty of
13 JUDGE MUMBA: That is so, Mr. Kolesar, so the
14 Trial Chamber can't intervene.
15 JUDGE HUNT: If I may say so, Mr. Kolesar,
16 you did have co-counsel and you permitted him to go.
17 Your client consented to him going, and I am not sure
18 what the exceptional circumstances were ones which the
19 Registrar found which enabled him to withdraw from this
20 case, but nevertheless, it seemed to be done with
21 everybody's consent, including your own. So the fact
22 that you are without co-counsel seems, to me, to be the
23 result of your own conduct.
24 MR. KOLESAR: [Interpretation] Your Honours, I
25 don't think you're right on that matter, because the
1 accused, Mr. Kovac, did not let go the services of
2 co-counsel, Mr. Domazet, nor did I give any agreement
3 to that. Quite simply, the new accused asked that
4 lawyer Domazet be his counsel, lead counsel, and what
5 Mr. Kovac did was that he just agreed to it. I do not
6 see any logic in him not agreeing, if the other
7 defendant would like to have a co-counsel. So we did
8 not dismiss anybody, he stepped down from the team
9 himself. We just agreed that he could step down. So I
10 don't think that these two matters can be equated.
11 JUDGE HUNT: Well, if you say you agreed to
12 him stepping down, that means you consented to him
13 going. The Rule, as I understand it, is that you
14 cannot be counsel in more than one case in the
15 Tribunal. So that if he was going off to be lead
16 counsel for some other accused, he could not remain as
17 your co-counsel. And, as you've just conceded, you
18 agreed to him going. So is it still not a problem that
19 you have brought upon yourself.
20 MR. KOLESAR: [Interpretation] I did not have
21 the possibility or right, Your Honour, either for
22 Vasiljevic or lawyer Domazet to prevent them, that
23 Mr. Domazet be defence counsel for Mr. Vasiljevic, and
24 whether he had my agreement or did not have my
25 agreement, in my view, it did not have any effect on
1 the fact that I'm alone on the Defence team now,
2 because I could have expressed my disagreement and he
3 would have left the Defence team anyway.
4 JUDGE HUNT: I think that you may not be
5 familiar with the terms upon which he received an
6 assignment. One of the terms of any assignment is that
7 you may not leave without the consent of the Registrar,
8 and the Registrar has permitted him to leave because,
9 as I recall, seeing a document signed by you, that you
10 did not object.
11 MR. KOLESAR: [Interpretation] If I did not
12 allow him to step down from the team, that is to say,
13 Mr. Domazet as lead counsel, I would have brought into
14 question a fair trial for this accused, and to all
15 intents and purposes, this prompted me to give my
16 agreement. A fair and expeditious trial is not only to
17 be granted to Kovac, but to Vasiljevic as well. So
18 those are the facts that guided me in giving my
19 agreement, and I still say that I think that that was
20 in order.
21 JUDGE HUNT: Well, Mr. Kolesar, if I may say
22 this: If you think that you need co-counsel in order
23 for this trial to be proper, then you better go about
24 getting one. But I think you'll find that the
25 Registrar has already made a ruling about Mr. Vujin.
1 MR. KOLESAR: [Interpretation] Thank you, Your
2 Honour. If the Registrar has done that, then in the
3 shortest possible time, we shall be able to regulate
4 that matter.
5 JUDGE MUMBA: Yes, because there are quite a
6 number of other counsel on the list of the Registrar.
7 So it is possible for the accused to get another
9 MR. KOLESAR: [Interpretation] Yes, Your
10 Honour. That is, once again, a matter up to the
11 accused, who he is going to select as his Defence
12 counsel, and not us lawyers.
13 JUDGE MUMBA: Mr. Jovanovic, anything? Other
14 than everything we have discussed, is the accused
15 person in good health? Are there any other problems?
16 MR. JOVANOVIC: [Interpretation] Your Honours,
17 as far as I know, there are no physical or
18 psychological problems for Mr. Vukovic to be able to
19 attend the trial.
20 However, I am very sorry for taking up your
21 time, but I find myself in a very unusual situation
22 myself, and let me explain that. For the third time, I
23 have been given an appointment, a one-month
24 appointment, and if Mr. Vukovic would ask me to take on
25 his case, I have tendered all the documentations
1 regarding property and everything else, the Judges are
2 well-acquainted with the rules and regulations for a
3 lawyer to be appointed Defence counsel. The trial
4 begins on the 20th of March. We have practically
5 reached that date, and I consider that Mr. Vukovic and
6 myself have done everything in my power to see that the
7 trial goes ahead as planned and scheduled, and we have
8 invested a great deal of effort.
9 However, due to certain reasons, which I do
10 not know why they have occurred, I still have not
11 received a permanent appointment as Defence counsel,
12 and as one thing leads to another, I am not in a
13 position to form a Defence team, to appoint my
14 co-Defence counsel. Everything is sort of up in the
15 air, if I should use that expression. And so I should
16 like to appeal to the Trial Chamber, if you deem it
17 necessary, and if within the frameworks of your
18 possibilities and adherences you allow for this to be
19 settled, to deal with that matter in one way or
20 another. It doesn't matter in which way, but just that
21 this should no longer be a problem for myself and for
22 the accused, because at this point in time, he does not
23 know if I'm going to be his Defence counsel or not.
24 That is all from me. Thank you, Your
1 [Trial Chamber confers]
2 JUDGE MUMBA: Yes, Mr. Jovanovic. We have
3 understood your problem, and we are going to give a
4 directive to the Registrar to take a decision right
6 MR. JOVANOVIC: [Interpretation] Thank you,
7 Your Honours.
8 JUDGE MUMBA: Any other matters,
9 Mr. Prosecutor?
10 MR. RYNEVELD: I'm sorry at this late hour to
11 say yes to that, but as I intimated earlier, we're
12 going to be asking for a matter to be dealt with in
13 closed session, if at all possible.
14 JUDGE MUMBA: Yes. Can we go into closed
16 Mr. Ryneveld, private session will do?
17 MR. RYNEVELD: Yes, that will be fine.
18 [Private session]
13 pages 282-287 redacted – private session
14 [Open session]
15 JUDGE MUMBA: I think we have gone through
16 all the matters that we wished to raise, and I do hope
17 that our trial will start on the 20th of March as
18 scheduled. And I do hope that Mr. Kolesar will take up
19 the matter of co-counsel immediately, as he has been
20 told what the status is, and there should be no
22 We have finished everything that we wanted to
23 discuss. We shall be waiting for the Prosecution's
24 applications for subpoenas. I think we have come to
25 the close of our proceedings, and the Tribunal will
2 --- Whereupon the Pre-Trial Conference
3 adjourned at 6.15 p.m.