1 Friday, 18th September 1998
2 (The accused entered court)
3 (Open session)
4 --- Upon commencing at 9.35 a.m.
5 THE REGISTRAR: Case number IT-95-16-T, the
6 Prosecutor versus Zoran Kupreskic, Mirjan Kupreskic,
7 Vlatko Kupreskic, Drago Josipovic, Dragan Papic and
8 Vladimir Santic also know as Vlado.
9 JUDGE CASSESE: Good morning. So I suggest
10 that we start with the Defence. I wonder whether
11 Counsel Slokovic-Glumac has anything to add to what she
12 said before on this particular item of -- we intend to
13 discuss today.
14 MS. SLOKOVIC-GLUMAC: Mr. President, I
15 presented my point of view more or less. That is to
16 say that we need a ruling on your part for the
17 above-mentioned reasons. I would appreciate it though
18 if the Prosecution would present their point of view
19 and then perhaps we could give our comments in relation
20 to what the Prosecutor will say, that is. Thank you.
21 JUDGE CASSESE: Thank you. Yes.
22 Mr. Terrier.
23 MR. TERRIER: Good morning, Your Honours.
24 I will try to present, during this hearing, the opinion
25 of the Office of the Prosecutor. I would first like to
1 say that the Office of the Prosecutor in this
2 discussion in this courtroom would like to be
3 constructive. We also wish to support completely the
4 Tribunal's efforts in order to improve the procedures
5 that we use, so that the Tribunal and this particular
6 Trial Chamber can carry out the mission which it has
7 received from the Community of Nations.
8 We also wish to support the efforts of the
9 Tribunal in order to define it to strengthen -- the
10 road that will open out to a new path. And when I say
11 "new path," we consider the fact that the national
12 experiences and the national laws all are, of course,
13 references, but none of them can be considered as a
14 model, none of them can be considered as something that
15 we must follow.
16 In this respect, I would like to make the
17 comment that all criminal procedural systems in the
18 world are systems which seek balance. Fragile balance,
19 that is. Systems of balance between interests that are
20 often contradictory, the interests of punishing crimes,
21 the interests of society and the defence of the
23 It is always very sensitive and difficult,
24 and sometimes even dangerous, to look only at one
25 aspect of the systems and not pay attention to the
1 whole thing. In many countries in Continental Europe,
2 and I'm thinking about France, of course, as a
3 reference in the spirit that I have just mentioned, the
4 Prosecutor, in fact, is prohibited from contacting a
5 witness. However, before the public trial, an entire
6 procedure has taken place during which evidence was
7 sought out, was gathered, was accumulated and
8 evaluated, and this, pursuant to extremely precise
9 rules, always within the framework of an inter parte
11 In this European country, the public trial is
12 only a moment when one can confirm or disprove the
13 evidence that has been presented, and in Continental
14 Law, to which I am referring, that is in some of the
15 countries, of course, I'm not making totally general
16 statements, the witnesses called to the hearing, first
17 of all, have always been heard according to specific
18 rules provided for by the law, and according to
19 well-defined forms either by a judge who has taken an
20 oath or by a police officer, and at the hearing the
21 same witness is not the witness of a party, but rather
22 the witness of the Tribunal was first questioned by the
23 Presiding Judge and then only after that by the parties
24 to the trial. Therefore, in our work and in our
25 efforts to make comparisons and to confront one system
1 to the other, we must be extremely careful.
2 In this Tribunal, we all have had different
3 experiences. Our different backgrounds must live
4 together, they must take wealth from one another, but
5 we also need to compare them and to confront them one
6 with the next.
7 I will not conceal from the Tribunal that
8 yesterday there was a discussion at the Office of the
9 Prosecutor about this question which has arisen, and we
10 very -- we were clear to see a dividing line between
11 those who see that the preparation of a witness is
12 something strange, something bizarre, which might even
13 be disturbing under certain circumstances, and there
14 were others who felt that it's as a normal way to work
15 in the pursuit of justice.
16 Despite this confrontation of ideas, certain
17 convergences of ideas did appear and I would like to
18 explain them to you.
19 Before I go into the substance, I would like
20 to make two preliminary comments.
21 The first is that to date in this Tribunal
22 and in the various Trial Chambers of this Tribunal, no
23 general restriction has been imposed as to access by
24 one of the parties to the witness that it has called.
25 No restrictions have been imposed, and no major
1 incident has resulted from that. By that I don't mean
2 that there have been absolutely no changes that have
3 taken place. Of course, the effort to improve the
4 procedures must be a constant one, but by that I mean
5 that the effort is not invoked or was not the result of
6 any particular incident. It has never been
7 established, never even alleged, that one party, in
8 this case, for example, the Prosecution, took advantage
9 of its position in order to lead a witness into saying
10 things that would not be consistent with the truth.
11 I am saying this -- or with all due respect
12 to you, I say this because under the circumstances in
13 which we find ourselves at this moment of the trial,
14 after the statements that were made by
15 Ms. Slokovic-Glumac, I would like an amendment to the
16 Rules be made even if she's completely justified in
17 what she's saying in principle, but not that it be
18 considered to be a criticism made against the
19 representatives of the Prosecution in this case.
20 And the incidents which arose the day before
21 yesterday with Captain Stevens, if we can talk about it
22 as an incident, called forth some reactions from the
23 Defence, and in its reactions I saw kind of an effect
24 that was trying to produce in the courtroom to
25 discredit the Prosecution, at least to embarrass the
1 Prosecution. But Captain Stevens very clearly
2 explained under what circumstances he had come to
3 identify the person which he did, which had then been
4 contested by the Defence. I, therefore, wish to say to
5 all the representatives -- on behalf of all the
6 representatives of the Prosecution, that they have not
7 committed any mistakes or any acts which would give
8 rise to a criticism from the Tribunal, and if a reform
9 is necessary, in no case is it linked or should it be
10 linked to that specific incident.
11 Mr. President, the day before yesterday you
12 heard reassuring words in this respect, and I permit
13 myself to say that working together with you and all
14 three of you has reiterated its -- will reiterate these
15 words in the decision that it's going to take.
16 The second comment which I want to make is
17 the following: What has been envisaged, what has been
18 discussed today, has to do with a significant reform,
19 an evolution and development of the Rules of Procedure
20 and Evidence, both as regards practical terms and also
22 Mr. President, you referred to Rule 90G of
23 the Rules of Procedure and Evidence, and its provisions
24 do state that the Tribunal has all the powers to
25 control the mode and order of interrogating witnesses
1 and presenting evidence. And in addition, as you
2 underscored, it introduces the idea, which, in my
3 opinion, is very important, that the purpose of the
4 Tribunal is to establish the truth. Therefore, on this
5 legal basis, the Tribunal is perfectly entitled to
6 limit or to prohibit either generally within this case
7 or in a case-by-case basis, contacts between the
8 different parties and the witnesses called.
9 But what I am taking the liberty of pleading
10 here before you, is that it appears to us that such an
11 important development and evolution of the Rules should
12 be of interest to all the trials that are pending
13 before this Tribunal and all the Trial Chambers here.
14 And I simply permit myself to express the desire that
15 if this Trial Chamber takes a decision in this respect,
16 the judges of this Tribunal, during their Plenary
17 Sessions, may speak about this and then come up with an
18 amendment to the Rules of Procedure and Evidence,
19 considering the importance of this issue.
20 I now come to the substance of the question.
21 First of all, I note that there was never a question,
22 and it did not seem to me that the spirit in which your
23 Tribunal has given rise to this question is the
24 following: There is no question of prohibiting
25 preparation of a witness by the party that called him
1 or her. This Tribunal, and I think all of us, are
2 perfectly aware of fact that in the procedural case in
3 which we find ourselves, this is absolutely necessary.
4 If we do not do that, the witnesses who
5 appear before Your Honours, in many cases, perhaps not
6 all but in many cases, that is more than 50 -- at least
7 more than 50 would have been incapable to present or to
8 give a cohesive testimony that would be of use to the
9 Court. And the most frequent consequences are the
10 following: The Trial Chamber would have to devote much
11 greater amount of time to hear each of the witnesses,
12 and the judgment would take much longer, so much longer
13 that it would not be tolerable.
14 The second consequence would be that the
15 hearing of each of the witnesses would probably consist
16 of reminding the witness of the previous statements
17 that he had made in writing, and asking him to think up
18 as many of the -- to find as many things as he could
19 remember in order to present a cohesive statement.
20 Therefore, the profile of such is not being
21 contested in this procedure, but if I am insisting on
22 it as it is very important to me, is that any Tribunal,
23 this one, like all tribunals, in my opinion, is faced
24 with two dangers, the threats of two dangers. The
25 Tribunal is threatened with the possibility of hearing
1 a witness who is not telling the truth, but in
2 addition, the Tribunal is also threatened with another
3 danger just as serious as the first, that is not
4 hearing a witness who is stating the truth, and not
5 hearing that witness because he is stating the truth
6 poorly, that he is speaking in a fragile manner, with
7 hesitations, with weakness. And it is a fact that
8 before all criminal courts, no matter what the country,
9 memories must be expressed as much as possible even if
10 they date back five or six years. They must be
11 expressed as much as possible, clearly, cohesively and
13 Preparation of the witness is a means of
14 avoiding or warding off those dangers. It is not
15 always a sufficient means, but in any case, this is
16 what, in my opinion, is what justifies it.
17 I am also aware, perhaps because of my
18 professional background, my national origins, I'm also
19 aware that the preparation of a witness and context of
20 party with that witness may lead to abuses which also
21 have dangers. It could lead one party, even
22 involuntarily, to alter the sincerity of a witness. Of
23 course, I'm speaking in general terms.
24 Even since the beginning of this trial, and
25 with all the witnesses that we have called to have
1 appeared before Your Honours, I have noted that all of
2 them had a clear understanding of what they had to say,
3 having -- once they had taken an oath. All of these
4 witnesses, in fact, clearly understand that they are
5 testifying under oath that, they must tell the truth,
6 and even if that truth is disappointing for the party
7 that has called them. I want to emphasise that point,
8 even if that truth is disappointing. And we remind
9 each witness, of course, what his or her obligations
11 But in general terms, abuse is possible,
12 abuse may be suspected. In order to prevent this type
13 of abuse, in order to prevent the suspicion, we have an
14 initial means, and that is the obligations of ethics,
15 professional ethics. We have professional ethics, and
16 I myself am a judge in my own country. I have worked
17 as a judge, I was a Prosecutor, I have obligations that
18 derive from ethical behaviour and its requirements. I
19 do not ask for the conviction of an accused if I do not
20 believe that person is guilty. But I have cases, I
21 have worked for the acquittal of a witness if I did
22 nothing that I would be in a position to demonstrate
23 his guilt.
24 Therefore, these are ethical concepts, and
25 I'm referring to a case law of the European Court of
1 Human Rights. That court said that impartiality of the
2 court must not only be real, but must, in addition,
3 must be apparent. This means that the suspicion
4 itself, even if it is not based on fact, is forbidden,
5 it must be prevented. The applicable rules must have,
6 as their object, the need to dissipate suspicion. And
7 in the same way, I think that the fairness of the
8 Prosecutor in this trial before the Trial Chamber, and
9 before justice in general, not only must be real, but
10 it is also apparent and must be beyond suspicion.
11 The operating rules of this Tribunal must be
12 defined in such a way that good intentions and clear
13 conscience are, of course, protected, but these rules
14 must also prevent any suspicion from being raised
15 against anything done by one of the parties. Of
16 course, in this case, it is the Prosecution, in
17 another, it would be the Defence. For this reason, in
18 my opinion, an evolution either can or must be
19 considered as regards the particular procedures that
20 your Tribunal has raised.
21 What might this evolution be? If preparation
22 of the witness is not, in and of itself, discussed,
23 challenged, if its effectiveness is recognised, I
24 believe that this evolution could be one of the two
25 following things that I'm going to propose: In the
1 first place, we could consider that at the very moment
2 that the witness takes his oath before the Trial
3 Chamber, there can no longer be any contact between
4 that witness and the party that called him in. That is
5 my first idea.
6 The second possibility is that this
7 prohibition against contacting the witness would come
8 after the end of the examination-in-chief, and
9 throughout that examination-in-chief, contacts would
10 remain possible between the witness and the party which
11 has called him to appear. In practice, of course, when
12 the examination-in-chief is sufficiently long, in order
13 to go beyond any interruptions that might take place in
14 the hearing itself, there might be distinctions made.
15 We would prefer the second solution. That means to
16 forbid contact or to restrict contact between the party
17 and the witness from the time that the
18 examination-in-chief has been completed.
19 I think, first of all, that we cannot
20 consider that we are in a system where one witness is
21 the witness of the party that has called him in, and
22 that he is the witness of the Tribunal. The oath is a
23 guarantee in our procedures and does not modify the
24 status of that witness, even if he remains the witness
25 of the calling party throughout the length of the
2 The second consideration in order to support
3 this position of the Office of the Prosecutor, all the
4 reasons that justify the preparation of the witness
5 appear, to me, to remain fully valid throughout the
6 time of the examination-in-chief. Therefore, we see no
7 advantage or any theoretical or practical reason which
8 would justify prohibiting contact with the witness once
9 the oath has been taken. But afterwards, one could say
10 that the situation or the status of the witness has
11 been substantially modified, because his testimony is
12 subjected to criticism and subjected to the
13 cross-examination and subjected, as well, to the
14 questions that the Judges ask.
15 Therefore, we believe that if your Trial
16 Chamber decides to restrict contacts between a party
17 and his witness, the restriction should come in only
18 after the examination-in-chief has been completed and
19 must continue until the witness has been excused by the
21 The second question has to do with knowing
22 whether this prohibition has to be an absolute one or
23 whether contacts must be permitted. The second
24 possibility, of course, would raise the question as to
25 what guarantees would be put in place.
1 What justifies one party wanting to maintain
2 or to go back to contacts with his witness after the
3 examination-in-chief? In my opinion, there are two
4 types of considerations that come into play and they
5 are different. First of all, it may happen that the
6 party which has called in a witness after the
7 examination-in-chief feels the need to clarify certain
8 points of the testimony in the interests of justice, in
9 the interests of truth that is being sought by the
10 Trial Chamber, and in the interests of the missions
11 that have been confided to it.
12 The second justification for continuing
13 contacts is the need to ensure that some witnesses, not
14 all, of course, that some have some kind of
15 psychological support which sometimes appears to be
16 absolutely necessary. These are two types of different
18 As regards the first justification, it seems
19 to me that a party must be able, in certain cases, at
20 least, to recontact his witness after the end of the
21 examination-in-chief. I believe that the same reasons
22 that justify the preparation of the witness to clarify,
23 to improve information for the Tribunal, to work better
24 and be more effective in reaching the truth, these same
25 reasons also justify the continued contacts.
1 But because the witness is no longer only, at
2 that time, the witness of one of the parties in this
3 case, the Prosecution or the Defence, but that in some
4 ways he has become the Tribunal's witness, guarantees
5 must be put into place. One could imagine several
6 types of guarantees. One could imagine that the
7 contacts be recorded. We could imagine that a
8 representative of one of the other parties, that is,
9 the Defence or the Prosecution, be invited to be
10 present during the discussions.
11 Mr. President, the other day you mentioned
12 the possibility that the Tribunal would be invited to
13 grant its authorisation under certain circumstances to
14 those contacts taking place. I wonder about those
15 guarantees, particularly, as regards the question of
16 authorisation. And I wonder whether the authorisation
17 would not also imply a need for justifications and
18 would not cause delays or possibilities that the
19 decision, whatever it might be, would be challenged.
20 And especially, it does not seem to me, to be a way of
21 definitely ruling out the possibility that the very
22 nature of these contacts, what is happening within the
23 witness room, despite the authorisation which had been
24 granted, might still be challenged or questioned.
25 Therefore, it seems to me that if this is a
1 principle of the Tribunal which is being defined,
2 complications may arise, as well as incidents. I would
3 allow myself to suggest another way of working, another
4 approach, which would be that the Trial Chamber, if a
5 contact should take place, would mandate somebody to be
6 present. And this individual, should there be an
7 incident, and the Tribunal considers that this, in
8 fact, has happened, could report on what he has seen or
9 heard during the discussions in the witness room, the
10 discussions between the calling party and the witness.
11 Which leads me to this idea, and that is, the day
12 before yesterday, Judge Mumba, based on her
13 professional experience, mentioned that there could be
14 a third party intervention, and I agree that it might
15 be useful and effective for ensuring guarantees.
16 The second consideration which justifies
17 contacts between a party and a witness is the question
18 of support that we have to guarantee to those
19 witnesses. Before this International Tribunal, which
20 sits in The Hague and which is responsible for judging
21 crimes committed in the territory of the former
22 Yugoslavia, many of the witnesses find themselves in
23 extremely special circumstances. I am speaking about
24 the witnesses from Bosnia. All those from
25 Bosnia-Herzegovina, almost all of them, are also
1 victims, victims of the acts about which they are
2 testifying. All of them have lost either a member of
3 their family, several members of their family, or
5 In certain procedural systems, and this is
6 only a reference that I'm giving now, the victims have
7 very extensive rights equivalent to those of the
8 accused. In this Tribunal, this is not the case. It
9 is not the choice that was made, but at least the
10 Statute and the Rules of Procedures and Evidence give
11 to the witness a certain number of rights, guarantees,
12 and, of course, at least the insurance that there will
13 be support and help. I refer to Articles 22 of the
14 Statute and Rule 75 of the Rules of Procedures and
16 In addition, before this Tribunal, I do know
17 that the Judges that you are, you are perfectly aware
18 of this, before this Tribunal, the witnesses from
19 Bosnia-Herzegovina find themselves in a psychological
20 situation which is extremely difficult. As I have
21 said, all of them were victims of the acts about which
22 they are testifying, but in addition to that
23 difficulty, that is, the tragedy that they have lived
24 through, is the fact that they are now 1.500 kilometres
25 from their homes. They are separated from their
1 families. There is the obstacle of language. There is
2 the unawareness or lack of understanding of the
3 institution in which they are working and, of course,
4 the perspective of having to go back, having to report
5 on what happened, answer for what happened, always in
6 an atmosphere which is precarious and difficult.
7 Therefore, they do all need moral and
8 emotional support which is extended throughout their
9 stay here within the walls of this Tribunal and, more
10 generally, in The Hague. I beg the Tribunal to
11 understand that when we have these contacts, we also
12 give them that support. The Tribunal will know
13 immediately, and that I can accept, that we are not the
14 only ones here to support the witness. There is the
15 Victims and Witnesses Unit, whose role is essential
16 within the framework of this Tribunal, who is also in a
17 position to attend to that matter.
18 As things stand today, however, if the
19 presence of the members of the Victims and Witnesses
20 Unit is effective, that presence is not always
21 permanent within this Tribunal. What a witness needs,
22 first and foremost during a break of a hearing after
23 the examination-in-chief, is to get echoes, to get
24 feedback about what happened to him here in the
25 courtroom. He either wants criticism or he wants
1 encouragement, but always support. In order to
2 reassure him, to encourage him, to support him, one has
3 to have been present at the hearing. One has to have
4 heard this testimony, and the members of the Victims
5 and Witnesses Unit, who are sometimes present at the
6 hearings, are not systematically present.
7 Therefore, I would ask that should the
8 Tribunal move towards restrictions or prohibitions on
9 contact between a witness and his party, that at least
10 it recognise the right or even the duty to invite
11 someone from the Victims and Witnesses Unit to be
12 present throughout the testimony. So that afterwards,
13 it will be in a position to give him that psychological
14 support which is absolutely necessary.
15 Lastly, in conclusion, I wonder about the
16 respect for the new Rules that Your Honours are
17 thinking about putting forth. I'm speaking, of course,
18 in general terms. I'm not speaking about the six
19 accused in this room. I'm not speaking about this
20 specific case in which we are working. But in all
21 trials throughout the world, in any country, the
22 Prosecution and the Defence find themselves in
23 differing positions in respect of the rules of law, not
24 in a different position, legally speaking, of course,
25 but practically speaking, and this under all
2 The first and major reason for the situation
3 that we do not think about very often is that, both for
4 the accused and for the Prosecution, there is a
5 difference. The Prosecution has no personal interest
6 in convicting the accused if they have not been proven
7 guilty. And if the Tribunal does not grant our
8 request, we will not feel any regret for that. We will
9 not feel spited. However, for the accused, of course,
10 the situation is completely different. What is playing
11 itself out here for the accused, obviously, is his own
12 fate, his reputation, and his freedom.
13 Therefore, once again, I'm not referring
14 specifically to any of the accused in this courtroom or
15 any of the circumstances of this trial. It sometimes
16 happens that the accused do not take the same position
17 as the Prosecution in respect of the common rule. And,
18 therefore, under certain circumstances, the question of
19 application of the rules of law might arise.
20 From a legal point of view, the answer to
21 that question is found in the very context that we find
22 ourselves, that is, in Rule 77 of the Rules of
23 Procedures and Evidence, which provides that any person
24 who interferes with or intimidates a witness who is
25 giving, has given, or is about to give evidence before
1 a Trial Chamber commits a contempt of the Tribunal.
2 This is the legal response. In practical terms, the
3 answer might be more difficult to arrive at. This
4 Trial Chamber is very aware that as regards application
5 of Rule 77, certain difficulties might arise,
6 particularly, as regards evidence.
7 Therefore, I have no solutions to bring to
8 you in respect of this question, but simply it is a
9 concern, which is a real one, and I wanted to mention
10 it briefly as I concluded my presentation of the
11 opinion of the Office of the Prosecutor about reform of
12 our Rules of Procedures and Evidence that Your Honours
13 are thinking about.
14 Thank you very much.
15 JUDGE CASSESE: Thank you very much. Thank
16 you very much, Prosecutor, for your very elaborate,
17 very detailed, and very clear statement. You have
18 presented a very high-level presentation, but,
19 nonetheless, I believe we will have questions for you.
20 Before we give the floor to the Defence, we would like
21 to ask you to clarify a number of points which you have
23 I would first like to give the floor to Judge
25 JUDGE MUMBA: Thank you. In another trial
1 before this very Trial Chamber, this is the case of the
2 Prosecutor versus Furundzija, the same issue did
3 arise. In that case, the Defence counsel, both of whom
4 are from the American system, did raise the issue with
5 the Trial Chamber, that they were not pleased to know
6 that the prosecuting counsel was contacting witnesses
7 after the trial had started. They asked for an order
8 which they described as an order of sequestration. The
9 Trial Chamber did issue this order prohibiting contact
10 of witnesses by trial attorneys during the trial.
11 It is important for you to know that this
12 Trial Chamber has had occasion to deal with this matter
14 JUDGE MAY: I don't think there is any
15 dispute about events before the witness starts giving
16 evidence. It's after the evidence starts that the
17 problems may arise. While I understand, of course, the
18 points which you make, the unusual nature of this
19 Tribunal, the fact that the witnesses come from a long
20 way away and have suffered in the way which they have,
21 nonetheless, I wonder whether it's appropriate for
22 counsel to give the sort of support that you spoke of
23 during the examination, whether it's appropriate for
24 counsel, who is conducting the examination, to comment
25 on how it's going to the witness. I rather doubt
1 that's appropriate.
2 It seems to me that the only circumstances in
3 which I could see a justification for speaking to the
4 witness is if something unexpected arises, as in the
5 situation which occurred the other day, the Captain
6 Stevens situation, if I can call it that, when clearly
7 there was some information which the witness wishes to
8 communicate which, obviously, counsel should know about
9 or otherwise it's lost.
10 It was in that connection, I think, that the
11 suggestion that the leave of the Chamber may have to be
12 sought was given. It's the mechanics, really, of
13 dealing with that which, it seems to me, have to be
14 considered. How is it that information can be given to
15 the witness? How is it that support can be given to
16 the witness once the examination has started?
17 It's in that connection that I would be
18 grateful of assistance, speaking for myself.
19 JUDGE CASSESE: Thank you. It might be
20 useful to hear all our comments, and then I will give you
21 the floor. I would like to add a few comments to what
22 my colleagues have just said.
23 First of all, you said, I think it was your
24 second comment, you said that if the rules are
25 somewhat changed as regards this trial, our Rules of
1 Procedures and Evidence would have to be modified,
2 amended, and you would ask that all of the Judges in
3 Plenary Sessions ask for changes in the Rules. That is
4 true. But I'm wondering whether you think that this
5 amendment is really necessary. Do you consider that,
6 as things stand now, we have the power to ask both of
7 the parties to have no relations with the witness while
8 they are being heard? This is the first question.
9 The second question is that you said, about
10 the second solution that you put forth, that the
11 witness be prohibited from having any contacts with the
12 party which called him, but only at the end of the
13 examination-in-chief. In order to justify what you've
14 said, if I understood it, is that you're choosing the
15 least bad from the point of view of the Prosecution,
16 that after the oath, after the solemn declaration,
17 which is provided for by Rule 90B, the witness remains
18 the witness of the party that has called him.
19 Of course, it is true that he does remain the
20 witness of the party that called him, but after that
21 oath has been taken, the witness has to tell the
22 truth. We have specific rules for cases where he
23 wouldn't tell the truth. I'm wondering whether your
24 suggestion is absolutely appropriate. In any case, I
25 would like to have your thoughts about that point to
1 understand better the justification that you gave.
2 The third and last point is about the
3 possibility that this prohibition might not be
4 absolute, yes, Judge May yesterday called forth the
5 possibility of the Trial Chamber authorising the party
6 who called the witness to have contacts with him. You
7 said, "Well, but that might cause delays and you would
8 have to give reasons when you ask for authorisation."
9 Why not? I was wondering why not? If one gives
10 somewhat more general reasons, but those would, at
11 least, allow the Trial Chamber to understand what the
12 reasons are, what the specific reasons are, that would,
13 under exceptional circumstances, allow these kinds of
14 contact. Of course, the Tribunal could immediately
15 decide from the bench as to the question that has been
17 I would like to ask you about a solution,
18 according to which the Trial Chamber could authorise
19 contacts further to a reasoned request from the party
20 that called the witness, and that would also take into
21 account the suggestion that the Tribunal could
22 mandate somebody to be present during the discussions.
23 I think that is an excellent suggestion, and I also
24 think that a member of the Victims and Witnesses Unit
25 might be the person to do it, since that person is
1 neutral and could be present during the contact to be
2 sure that that contact deals with subjects about which
3 the request for authorisation refers to.
4 If one could combine the different elements,
5 that is, authorisation, request for authorisation, with
6 the reasons that would justify the authorisation, an
7 authorisation from the Trial Chamber, but with the
8 guarantee of the presence of an independent individual,
9 a neutral person -- well, what would your suggestion
10 then be, if we were to put that all together?
11 And it would be based on all the facts that you
12 mentioned. Because I think in the end, it would be
13 very useful for the interests of justice to proceed as we
14 discussed, and as the Defence raised. Here you have
15 three questions.
16 Now, Mr. Terrier, perhaps you might want to
17 answer me.
18 MR. TERRIER: First of all, on the issue that
19 you have raised regarding the interests that I have
20 made with regards to amendments to the Rules of
21 Procedure and Evidence, this amendment, I believe, is
22 desirable, and I also concede the fact that this
23 Tribunal has the right, as Judge Mumba has just
24 reminded us, this was already done, indeed, that the
25 Tribunal does have the right to apply this amendment in
1 a general way or a case-by-case basis. So the question
2 is not whether or not there is a legally sound issue,
3 but whether or not this deals with the overall --
4 whether it's consistent with overall practices here in
5 the Trial Chambers of this Tribunal.
6 It would not be desirable -- rather, it would
7 be desirable for the practices of all the Trial
8 Chambers to be as close as possible, and I believe that
9 everyone here understands that I am not contesting the
10 legitimacy of this Tribunal of imposing whatever rules
11 it feels it should impose.
12 Secondly -- the second observation I would
13 like to make, at what point -- this is a point that the
14 President -- question the President put to me, at what
15 point should there be restrictions on contact with the
16 witnesses? Should it be at the end of the
17 examination-in-chief or should it be after the witness
18 has taken the oath? This is an issue by I feel should
19 be discussed because, we have seen the experience of
20 the Great Britain, and we've also seen the experience
21 of Canada, who go in the same direction but nonetheless
22 have some variations of this theme with regards to the
23 prohibitions of contact.
24 Law, of course, is not an exact science, and,
25 therefore, I cannot show, based on some sort of a
1 chemical formula that I am correct or that someone else
2 is wrong. However, nonetheless, it seems to me that
3 once the oath has been taken, this is a guarantee of
4 procedure, this is a guarantee that truth will prevail
5 before this Tribunal, and this is not a procedure by
6 which the status of a person can be changed. If you
7 will, this is almost a formula of faith. Of course,
8 the Tribunal may have a very different view of this.
9 Consequently, I wish to look more at the practical
10 aspect of this issue.
11 Throughout the duration of the
12 examination-in-chief, which can be relatively short --
13 well, throughout the duration of this
14 examination-in-chief, the preparations of this witness
15 should remain valid. Throughout this
16 examination-in-chief, the witness shall respond to
17 questions which the party who had called this witness
18 feels important to ask.
19 In this case, the witness has not yet been
20 questioned by the Tribunal, not at this stage anyway.
21 So it seems to me very clear that until the end of the
22 examination-in-chief, the witness of the calling party
23 remains the witness of that calling party. However,
24 you may see this from a different advantage point. We
25 look at very old legal systems which are very well
1 established, we see that they go into a different area
2 or a different direction, rather.
3 The third observation I would make, I do not
4 feel it would be within my own function here in this
5 Tribunal to give psychological support to the witness.
6 This is not my own training, this is not my own
7 experience. However, it may occur that I do so, that I
8 have been brought to do so, when it seems, to me, to be
9 necessary to give such psychological support. It is
10 for that reason that I've stated that if such a support
11 may be given to the witness in another manner, I see no
12 inconvenience whatsoever, as long as such support is
13 real and appropriate.
14 The fourth point is regarding the conditions
15 in which these contacts may be made again or maintained
16 with this witness by one of the parties. You've
17 mentioned two different types of guarantees. One,
18 leave of the Tribunal and the presence of a third
20 In my own mind, the presentation of a third
21 party is the primary type of guarantee, because what
22 sometimes may cause a problem is not the fact that
23 there was contact, but what happened during the course
24 of this contact. And so it is in this case that we may
25 have a need for an outside witness, a third party, if
1 you will, who can report to the Tribunal, at the
2 request of this Tribunal, what to place, what he heard
3 and what he saw. The first of these guarantees is
4 there was a third party present.
5 In my own mind, the difference that exists in
6 the system that you yourself, Mr. President, has
7 raised, is that the context in these circumstances and
8 with these guarantees in place, should not be
9 considered necessarily as exceptional, but of course,
10 always with leave of the Tribunal, because it would be
11 to this Tribunal that this party will have to address
12 itself in order to be appointed as a third party.
13 Therefore, based on Rule 90, the Tribunal can say, "No,
14 we're not going to appoint a third party, there is no
15 cause for any contact."
16 So I believe that, if you will, when a third
17 party which appointed by this Tribunal must intervene,
18 that itself is not a point of issue. The point of
19 issue is whether or not these would be exceptional
20 cases or non-exceptional cases.
21 It is very clear that in some of the
22 testimonies that would take place during the course of
23 testimony there may be some problems. The transcripts,
24 for example, may be somewhat difficult to understand
25 and to follow, and some clarifications may be required,
1 naturally. In such circumstances, if a clarification
2 is required, there would be no reason for the Tribunal
3 to have to require that a party with, of course, the
4 presence of the third party be required to submit such
5 a clarification to this Tribunal.
6 So whether or not the Tribunal authorises or
7 forbids such a contact is, for me, not really a
8 problem. This is quite logical within a system that I
9 myself propose, that is to say, the presence of a third
10 party mandated or appointed by the Tribunal. I think
11 this should be the Tribunal itself who should be in
12 charge of telling the -- either party that if they are
13 to have contact with one of the witnesses, they must go
14 through a third party who will be, if you will, a
15 representative of the Tribunal. Then, in this case the
16 Tribunal could allow such contact to take place.
17 These are the observations I would like to
18 make with regards to the questions you have put to me.
19 Perhaps they have been incomplete, but Mr. Moskowitz
20 himself would like to add a few words. Therefore, I
21 would wish to give him the floor on this issue.
22 MR. MOSKOWITZ: With the permission of the
23 Tribunal. Thank you, Mr. Terrier.
24 I would like to just briefly address a
25 specific concern that Judge May raised about the
1 practicalities of assuring that there would be no
2 information lost as a result of not being able to
3 contact witnesses either during direct-examination or
4 during cross-examination. And I think the Captain
5 Stevens incident is a good example of how, I think,
6 close we came to losing what I consider to be important
7 information for the Tribunal to hear.
8 I think without having actual physical
9 contact with the witnesses, there is a substantial risk
10 that information will be lost, in that witnesses will
11 not convey that information to the Prosecutor simply
12 because the prosecutor is not there.
13 We spoke to the Victim and Witnesses Unit
14 yesterday to share our concerns with them and to speak
15 with them about what they could do to assist in that
16 process, and they were quite candid with us that their
17 mission and their obligation is to provide support for
18 the witnesses, but they are not in a position to
19 provide information from witnesses, through them to the
20 Prosecutor. And as a result, had there been a rule in
21 place not permitting witness contact, for example, with
22 Captain Stevens, in all likelihood we would not have
23 received that information, and that information would
24 not have been brought out during direct-examination.
25 I would also like to underscore what
1 Mr. Terrier has said about the potential for
2 miscommunication and misunderstanding that is perhaps
3 somewhat unique here in the Tribunal as opposed to some
4 of the national systems that we're all used to. And
5 I'm thinking of one incident in particular that
6 happened earlier, not an especially important incident,
7 but a witness who had described, I think during
8 cross-examination, a motorcycle with a flag on it, and
9 it struck me as quite unusual the way it was describe,
10 and only by asking the witness later, during a break,
11 what he meant by that, did we find out that he meant
12 something completely different, that the flag was not
13 on the motorcycle, it was being dragged behind the
14 motorcycle. I think that just sort of points out some
15 of the real potential for confusion and
16 miscommunication that can inevitably happen, and that
17 can be clarified with witness contact in order to make
18 sure that this Tribunal receives the most accurate
19 information that we can provide.
20 But my main concern is the concern that I
21 think Judge May expressed, and that is the potential
22 for loss of information and how best to make sure that
23 doesn't happen, while at the same time providing a
24 situation where everyone can be assured that there is
25 nothing improper going on. And perhaps the suggestion
1 that Mr. Terrier made is the right one, that there be
2 someone from the Victims and Witnesses Unit present, to
3 assure everyone, there is nothing improper going on,
4 but still to allow a sufficient contact with the
5 witness during the course of both direct and
6 cross-examination, so that information can be conveyed
7 to us as is necessary so that it can be brought out for
8 the Tribunal.
9 JUDGE CASSESE: Before I turn to the Defence,
10 let me just ask Mr. Moskowitz, apropos what you just
11 said about the flag, but of course, I mean, we were all
12 struck by what the witness said, but you might have
13 asked this question in court. Why do you need to talk
14 to him in private? I mean, you say -- I mean, when we
15 come back, "Look, what did you mean by seeing the
17 MR. MOSKOWITZ: Yes.
18 JUDGE CASSESE: I don't know whether there
19 are other examples, but I would say that -- I humbly
20 suggest that this particular example is not terribly
22 MR. MOSKOWITZ: I think this perhaps points
23 out some differences in culture between the continental
24 system and the system I'm used to. I must say that one
25 of the wonderful things about working here is to see
1 those two systems meet.
2 It's certainly part of my training and
3 culture, when dealing with witnesses on the stand,
4 generally not to ask questions to which you do not know
5 the answer, and that is simply my training. It's the
6 way we do things in my country, and so that's my
8 JUDGE CASSESE: Thank you. Yes, Judge
10 JUDGE MUMBA: I just want to find out from
11 the Prosecution; when these cases are prepared, like
12 when the witnesses had been contacted, the statements
13 have been taken, is there no officer, like an
14 investigation officer, who has had contact with
15 witnesses, sometimes has recorded the statements? Who
16 puts up the evidence which is required for every
17 trial? Is there no such officer? Because I was
18 thinking that if you have such an officer who would
19 normally be called an investigations officers, the one
20 who knows the witnesses, the evidence likely to be
21 given to support the indictment, and that is the person
22 who would be assisting the trial attorney.
23 I just want to know whether you have such
24 people in the preparation of your cases.
25 MR. MOSKOWITZ: Yes, Judge Mumba, there are,
1 of course, investigators who become case
2 investigators. During the course of these
3 investigations, however, they go on sometimes for many
4 years, and investigators come and go within the
5 Tribunal. And so it's difficult to say, at least in
6 this investigation, that there has been a lead
7 investigator that is familiar with the facts of the
8 case from the beginning of the investigation.
9 I will say that at this time our lead
10 investigator is someone who has arrived in The Hague on
11 detail only within the last several months, and he is,
12 in fact, in Bosnia doing some work as we discussed
13 earlier, taking some measurements and doing some
14 last-minute investigations.
15 So this again, I think, points out one of the
16 differences that Mr. Terrier was referring to between
17 some of our national systems and the way things work
18 here in the Tribunal, and it creates, I think, some of
19 the special concerns that lead us to believe that a
20 certain amount of witness contact, even during
21 testimony, is absolutely necessary.
22 JUDGE CASSESE: All right. Let us now move
23 on to the Defence, and I wonder whether -- Counsel
25 MR. PAVKOVIC: Good morning, Your Honour.
1 First of all, I must point out that when Mrs. Slokovic
2 raised this issue, I do not think that she had in mind
3 at that point, the breadth of the subject matter
5 If I'm now in a position to interpret her
6 position, and on the basis of our mutual discussions,
7 perhaps I could attempt to do so, because since the day
8 this question has been put, we, the Defence counsel,
9 have been exchanging views amongst ourselves, and the
10 level of the problem that she wished to highlight on
11 that occasion was ever a pragmatic nature. However,
12 today, we are faced with positions that go far beyond
13 what we bore in mind on that occasion. Of course, no
14 harm done, we think. It is a good thing to present it
15 this way.
16 However, it does seem to me that the
17 Prosecutor has, in a very commendable manner, raised
18 issues which require a doctrinairy (sic) level of
19 discussion, and it seems to me that if we do accept
20 this kind of discussion, the Defence, at this point in
21 time, because we are actually faced with many different
22 issues, would not be able to conduct a discussion at
23 this level, because after call, the Prosecutor had a
24 few days to prepare for this.
25 So, Your Honours, I would propose, of course,
1 if you believe that this should be argued further and
2 that even more arguments should be presented in
3 addition to the ones that were presented by
4 Mrs. Slokovic when she originally expounded on this
5 proposal, that you then allow the Defence to present
6 its positions at the next trial session, on Monday at
7 least, if you deem this necessary.
8 We think that many questions have been
9 raised, and now the Defence attorneys could either
10 present their very own points of view, each and every
11 one of us, I mean, so either that should be allowed,
12 but I think another option would be more practical,
13 that we discuss this amongst ourselves during the
14 break, and that then we would reduce our position on
15 this issue to the level that I mentioned at the very
16 outset of my statement. So that is the way we would
17 like to put it, pragmatically, as I said.
18 We do not think the rules should be changed,
19 because the rules are sufficient guarantee both in
20 terms of witness protection and in terms of making
21 possible, taking a note of all the facts that the
22 Prosecutor mentioned, and that he would be saying the
23 truth, et cetera, that all of this will indeed be
24 carried through.
25 There's one thing that we are a bit
1 apprehensive of, that is to say that during a trial,
2 when the examination-in-chief goes on for longer than
3 one day, in those intervals, perhaps one can
4 unintentionally, perhaps even due to clumsiness, talk
5 to the witness and modify his statement, affect the
6 witness, affect his later statement, so that the
7 witness would indeed speak along the lines of the
8 thesis that the party concerned wishes to have
9 corroborated. That is the fear that the Defence is
10 expressing, because it seemed to us, in the proceedings
11 to date, that such interventions did occur, especially
12 in the case that we have been mentioning time and again
13 today, that is to say the questioning of Captain
15 So let me conclude by saying, Your Honours,
16 that I hope that you will assess this position of the
17 Defence, and if you deem it necessary, to continue our
18 discussion on this, that you give us the same amount of
19 time that the Prosecutor had, so that we would quite
20 precisely spell out our views so that we could have a
21 general overview of this problem. Thank you.
22 JUDGE CASSESE: Thank you.
23 We consider that the request of Defence
24 counsel is quite appropriate and fully justified, so
25 they need some time to get together and try to agree
1 upon their own common and joint position. So,
2 therefore, let's come back to this issue on Monday.
3 However, since we have for next week 13
4 witnesses, we would like to concentrate on those
5 witnesses. We would like to suggest this issue should
6 be discussed on Monday by the Defence, not necessarily
7 at 9.30 when we start with witnesses, but sometime
8 maybe in the afternoon, and if need be, we will maybe
9 prolong our hearing in the afternoon by half an hour.
10 Instead of finishing at 5.00, we could go on until 5.30
11 if it is necessary. But I think probably the Defence
12 counsel will need not more than 30 minutes to set out
13 their position. We know the position of the
14 Prosecutor. Of course, at that stage the Prosecutor
15 may wish to respond, and we will see whether time is
16 available. But if we may conclude this discussion of
17 this item by Monday evening, it will be quite good,
18 because then we would be in a position to make a ruling
19 on Tuesday, because I'm sure that Defence counsel are
20 very keen to see that necessary changes, if made,
21 enter into force, as it were, as soon as possible.
22 All right. Any other issue? I see that we
23 have 13 witnesses. We hope that all of them will be
24 heard next week. I assume some will probably stay on
25 if we can't hear all of them, so sort of reserve
1 witnesses. But we are very appreciative of the efforts
2 made by the Prosecution to call more witnesses so that
3 we can proceed more expeditiously.
4 Yes, Counsel Krajina.
5 MR. KRAJINA: Your Honours, I should like to
6 raise a question of procedure regarding the
7 presentation of evidence by the Defence, and I would
8 like to hear your views on it and how in keeping with
9 that we could prepare better quality presentation of
10 evidence on the part of the Defence. My question
11 relates to the cross-examination by the Defence after
12 hearing the Prosecution witness.
13 Can the Defence, during its cross-examination
14 of the Prosecution witness, present video cassettes
15 which were filmed by the Defence, and ask the witness
16 to talk of the contents of that cassette?
17 I am talking about a particular video
18 cassette which films the location to which the
19 testimony of the Prosecution witness refers, and on the
20 particular video cassette there is a statement by a
21 second eyewitness which the Prosecution witness has
22 referred to.
23 This video cassette was filmed by the
24 Defence, and of the Prosecution witness, we should like
25 to ask that they present their views regarding that
1 cassette, to say "yes" or "no" to the contents of the
2 cassette, and to state whether the location filmed was
3 the scene of the incidents or not, whether the events
4 have been correctly shown by the witness or not.
5 The Defence, at all events, is ready, before
6 hearing the testimony of the Prosecution witness, to
7 provide the Prosecutor's office and the court with the
8 video cassette, and we would also agree to have the
9 Prosecution use the video cassette during his
10 examination of the Prosecution witness.
11 Therefore, my question is as follows: Will
12 the Trial Chamber permit us to show this particular
13 video cassette, in the manner that I have explained,
14 during our cross-examination?
15 The witness appearing on the video cassette,
16 eyewitness, we intend to call as a witness before this
17 Trial Chamber. However, in this way, we should like to
18 present his testimony to other witnesses testifying as
19 to the same facts and circumstances in order to
20 confront the two testimonies. Thank you, Your
22 JUDGE CASSESE: Mr. Terrier.
23 MR. TERRIER: Perhaps a decision should be
24 made, but what I would like to say very quickly, at the
25 request of my colleague, of course we have no objection
1 that the film cassettes be submitted to the Tribunal in
2 the context of the cross-examination. However, we
3 request that these videos be submitted sufficiently in
4 advance to permit the Prosecution to view the film, to
5 give our own point of view on that.
6 This is regarding -- we understand there is
7 one issue, and that was the issue of the store
8 belonging to Vlatko Kupreskic. We understand that the
9 exterior of that store has been modified to a great
10 extent. So, of course, if that indeed is going to be
11 the issue that's going to be presented, then we wish to
12 have advance notice of that so we can prepare.
13 JUDGE CASSESE: We rule as follows: Yes, it
14 is quite appropriate for the Defence to produce a
15 videotape and use it in cross-examination. However, as
16 Counsel Krajina has rightly suggested, the videotape
17 should be handed in advance to the Prosecution.
18 So if you're going to use the videotape next
19 week, could you kindly give it to the Prosecution maybe
20 today, so that they can spend some time looking at the
21 videotape? And probably you may wish to provide, also,
22 details about the videotape, when it was made, and any
23 other detail, whether it is a copy, the original, and
24 so on. I think the Prosecution may need to have all
25 these details. But in principle, of course, it is your
1 right to use any videotape while cross-examining
2 Prosecution witnesses.
3 Any other outstanding matters? Counsel
5 MR. KRAJINA: Thank you, Mr. President. We
6 shall be providing the Prosecution with the video
7 cassette and all the necessary data on Monday.
8 JUDGE CASSESE: All right. On Monday, but
9 when will you start using the video cassette in court,
10 because you must give the Prosecution, at least, one or
11 two days, I think.
12 MR. KRAJINA: We expect to use this three
13 days later, three days after having presented the video
14 cassette. I think that is sufficient for the
16 JUDGE CASSESE: Yes, indeed, I think so. I
17 assume this will be used in relation to one of those
18 witnesses who are listed here on the list provided by
19 the Prosecution?
20 MR. KRAJINA: Mr. President, the list from
21 number 6 onwards, the witness list from number 6
22 onwards, that's where we're going to use it.
23 JUDGE CASSESE: Mr. Moskowitz?
24 MR. MOSKOWITZ: The only concern I voice, at
25 this point, is that occasionally, the order of the
1 witnesses tend to change, sometimes beyond our control
2 to stop it. If, for some reason, a witness has to
3 appear before another witness and Mr. Krajina wishes to
4 use the videotape to cross-examine, and we have not yet
5 had an opportunity to sufficiently view the tape, then
6 that could be a problem. I would suggest, if at all
7 possible, that it would be better to give us the tape
9 JUDGE CASSESE: Counsel Krajina, is it
10 possible for you to provide the tape to the Prosecution
11 today? I think the Prosecution has a very good point.
12 Very often, they have to change the order of witnesses,
13 and then you would not be in a position to use the
14 videotape while cross-examining a particular witness.
15 As I say, if you have the videotape close at hand, why
16 not provide a copy to the Prosecution today?
17 MR. KRAJINA: Mr. President, we will
18 endeavour to do so today. I think we can, yes.
19 JUDGE CASSESE: Thank you very much, indeed,
20 Mr. Krajina.
21 Counsel Slokovic-Glumac?
22 MS. SLOKOVIC-GLUMAC: Just one brief
23 question. At one of the discussions we had two weeks
24 ago, a decision was taken to hear a witness, a female
25 witness, and she returned to Bosnia, according to our
1 information. I should like the Trial Chamber to ask
2 the Prosecution's office to see how she is health-wise
3 and for medical records to be submitted to see whether
4 this witness should not appear before the Trial Chamber
5 because of her health situation, to see how we should
6 react to that.
7 JUDGE CASSESE: Thank you. Of course, we had
8 not forgotten your request concerning this particular
9 witness. I immediately got in touch with the Victims
10 and Witnesses Unit, and they pointed out to me, I have
11 a whole memo here, that in order to let us have the
12 medical report of this witness, they need the
13 authorisation of the witness, the signature. So they
14 will go there this week, probably they have gone there
15 this week to Bosnia, to try to get the signature,
16 namely, the authorisation from the witness for the
17 disclosure of her medical report to the Court. I
18 assume that pretty soon, probably early next week, we
19 will have the medical report.
20 We have thought of various options which are
21 open to us. First of all, we would like to know
22 whether the Prosecution intends to call this witness,
23 this particular witness, or, if they don't, whether the
24 Defence is prepared to call the witness or if the Trial
25 Chamber, acting upon the relevant Rule in the Rules of
1 Procedures and Evidence, will call this witness as a
2 Trial Chamber witness.
3 The Unit is very keen to know from us the
4 status of this witness, because I understand that
5 depending on her status, whether she's a Prosecution,
6 Defence or Court witness, different measures are taken,
7 always in a neutral way. Therefore, we have to decide
8 on this matter. Then, of course, as I said before,
9 however, in case of a refusal by the witness to come
10 here to The Hague, we feel that we should not go as far
11 as to compel her to come here to court. Namely, we do
12 not intend to subpoena the witness. I will tell you,
13 also, what other options we have thought of.
14 Let me, first of all, ask Mr. Terrier whether
15 they have decided what to do.
16 MR. TERRIER: Mr. President, to tell you the
17 truth, we no longer ask ourself this question, because
18 we felt that, perhaps, the Tribunal would decide
19 whether this witness should come. Therefore, we did
20 not feel it was our initiative anymore. At last, the
21 practical issue to present itself, that is, her health,
22 which, of course, might prevent this decision from
23 being taken. Otherwise, we have no objection to the
24 principle of her being called if the Tribunal wishes to
25 do so, of course.
1 JUDGE CASSESE: I think that in this case, it
2 is better for the witness to be a witness called by the
3 Trial Chamber to give evidence in court, also because
4 this might appear to the witness herself as a way of
5 protection, a way of protecting her in coming here. So
6 she might find a psychological incentive in coming here
7 to give evidence because of the request put forward by
8 the Court.
9 Now, the next steps are as follows: First of
10 all, we will receive the medical report. I hope it is
11 not bad. Then we will ask her to come over here. If
12 she refuses, we don't want to subpoena her, for a lot
13 of obvious psychological reasons. However, we might
14 take a deposition when we go to
15 Bosnia-Herzegovina. We might envisage the
16 possibility of taking a deposition under Rule 70, I
17 think it is, with the presence of Defence counsel, and
18 the whole Court would be there, say, maybe in her own
19 house, so she would feel comfortable.
20 We might even decide to admit in evidence her
21 statements, her various statements. This is a
22 fallback. I would prefer either her to come over here
23 or to take a deposition, because it's better to have
24 the witness in front of us. However, as I say, as a
25 fallback solution, we might eventually decide to enter
1 into evidence those statements which, I think, the
2 Defence intends to stress.
3 This is the situation. I hope that it's fine
4 with you. We will let you know. Also, because, of
5 course, if this witness comes here, we have to let you
6 know so that you can do some planning because of the
7 list of witnesses you have produced.
8 I think it's now time to adjourn. No other
9 points? Thank you for this extremely important
10 discussion, and we will adjourn until Monday at 9.30.
11 --- Whereupon the hearing adjourned at
12 11.00 a.m. to be reconvened on Monday,
13 the 21st day of September, 1998 at
14 9.30 a.m.