1 Wednesday, 3 May 2000
2 [Open session]
3 --- Upon commencing at 1.58 p.m.
4 [The accused entered court]
5 JUDGE RODRIGUES: [Interpretation] You may be
7 With this decision, we are going to close, I
8 hope, two days of very hard work. Here is the decision
9 of the Chamber.
10 In a preliminary manner, the Chamber wishes
11 to remind the parties that before filing a motion,
12 regardless of its nature, except in the case of an ex
13 parte motion, they should previously discuss amongst
14 themselves the provisions of the motion and seek to
15 achieve an agreement. The motion should be brought
16 before the Chamber only in the case of persistent
18 Furthermore, all written motions should be
19 filed with the Registry simultaneously in both official
20 languages of the Tribunal, and it is the duty of the
21 parties to undertake the necessary steps to achieve
23 Finally, except in the case of unforeseeable
24 circumstances, motions should be filed within a
25 reasonable time frame, allowing the Chamber to be able
1 to rule, so before the question addressed actually
3 Regarding the measures for the protection of
4 witnesses, the Chamber wishes to recall that the Rule
5 is that hearings be held in public. The Chamber notes
6 that the number of witnesses for which a closed session
7 is requested is not such as to call into question in
8 any significant way the principle of the public nature
9 of hearings.
10 To the extent to which the Chamber does not
11 have the resources for necessary inquiries, it is up to
12 the parties to provide it with all the elements,
13 allowing it to judge on a case-by-case basis whether it
14 is desirable for a witness to be granted the
15 exceptional measure which a closed session hearing
17 Under these conditions, the Chamber grants
18 protective measures 1, 2, 3, 4, and 8 mentioned in
19 paragraph 12 of the Prosecution motion, dated 27 April
21 The Chamber also rules that the accused, his
22 counsel, or his representatives, acting in accordance
23 with their instructions or at their request, may not
24 contact a witness or a potential witness of the
25 Prosecutor, or any other person identified in the
1 elements provided to the Defence by the Prosecutor,
2 unless the Prosecutor has been advised of the same in
3 writing within a reasonable time frame. In the case of
4 such a request, the Prosecutor may be present in the
5 event of any such meeting between the Defence and that
6 person if the person so requests. That measure will
7 apply on a reciprocal basis to the Defence witnesses
8 which the Prosecutor wishes to contact.
9 Concerning trial summaries and transcripts
10 which the Prosecutor should like to tender into
11 evidence, we decide that regarding the transcripts, the
12 statements made by witnesses which the Prosecutor
13 wishes to call again represent prior statements in the
14 sense of Rule 66 of the Rules and should therefore be
15 disclosed to the Defence as early as possible, and
16 including in a language the accused understands. The
17 Chamber feels that such a communication will occur only
18 in exceptional circumstances, which the Prosecutor will
19 justify, at least seven working days before the
20 envisaged date for the appearance of the said witness.
21 Under those circumstances, the two parties
22 should endeavour to avoid posing to the witness the
23 same questions to which he has already provided answers
24 during his first appearance in order to avoid any
25 repetition. Naturally, the Chamber will judge on a
1 case-by-case basis, if necessary, the repetitive nature
2 of the questions posed to see whether such a repetition
3 is justified.
4 Regarding trial summaries mentioned in
5 section 2(b) of the Prosecution motion, dated 28 April
6 2000, the Chamber believes that this could be a measure
7 which could speed up the proceedings. In order to form
8 an opinion, the Chamber wishes that the Prosecutor
9 should provide it with the trial summaries which it has
10 already disclosed to the Defence. For the immediate
11 future, and in order not to further delay proceedings,
12 the Chamber authorises the Prosecutor to use those
13 summaries orally at hearings.
14 In order to facilitate the use of their
15 rights by the Defence, the Chamber will consider it
16 necessary that a draft summary should be disclosed to
17 the Defence, including in a B/C/S version, at least
18 seven working days prior to the date envisaged for the
19 appearance of the witness concerned.
20 Concerning the cross-examinations, the
21 parties have agreed, as regards Prosecution witnesses,
22 that after the examination-in-chief, the Defence
23 counsel of Miroslav Kvocka will notify the Chamber the
24 order in which the Defence counsel of the accused wish
25 to cross-examine that witness, and the Chamber accepts
1 this suggestion.
2 The Chamber is of the opinion that as soon as
3 witnesses appear before it, the witnesses are less
4 witnesses of one party but more witnesses of justice.
5 From that standpoint, it is important that contacts by
6 either party with a witness should cease immediately
7 after the solemn declaration made by the witness before
8 the Chamber. Naturally, a party will always be able to
9 notify the Chamber of any reasons which might justify
10 exceptional contacts with the witness. But the
11 principle is that all contacts should be prohibited
12 between the parties and a witness after the witness has
13 taken the solemn declaration, until the end of his
14 testimony before the Chamber in the case that is being
16 Regarding an on-site visit, the Chamber has
17 contacted the competent services to envisage the
18 possible transport on site, as requested by the
19 Prosecutor. At this stage, it is not able to provide
20 an answer.
21 Regarding judicial notice, it appears to the
22 Chamber that it is important to fix, as of now and to
23 the extent possible, the framework of the debates. In
24 that context, the Chamber takes note only of the facts
25 and only those facts on which agreement has already
1 been reached by the parties.
2 That is the decision of the Chamber. I would
3 perhaps like to add that this is the ruling of the
4 Chamber which we may review or amend if the need to do
5 so should arise.
6 As I have always said, we are trying to
7 organise our work, and we are not slaves of
8 organisation. Organisation is there to serve us, and
9 therefore to the extent to which that organisation is
10 going to serve our purpose, we will maintain it. If it
11 proves not to be useful, we can reconsider it.
12 Therefore, I think that, as I said at the
13 beginning, we are going to close these two days of
14 work. There will not be any written ruling. This is
15 the decision of the Chamber and this is the definitive
17 Therefore, I think it is not appropriate or
18 useful to bring in a witness now, so I think we will
19 adjourn for today.
20 Madam Hollis, you have the floor.
21 MS. HOLLIS: The Prosecution asks
22 clarification on two points.
23 Regarding your decision on the transcripts,
24 you indicated that the transcripts must be disclosed
25 seven days before the testimony. The Prosecution
1 understands from that that with our first witness, we
2 will not be allowed to put the transcript into
3 evidence. Is that correct?
4 JUDGE RODRIGUES: [Interpretation] The
5 decision applies for the next few days, and for
6 tomorrow we're going to function in accordance with the
7 normal Rules.
8 MS. HOLLIS: All right, Your Honour.
9 The second matter I'd like to raise, I
10 believe we have to go into private session. It
11 concerns our oral application on two witnesses for
12 protective measures. Could we go into private session
13 on that, please.
14 JUDGE RODRIGUES: [Interpretation] Yes, we're
15 going to go into private session, please. Mr. Marc
16 Dubuisson, will you take the necessary steps.
17 [Private session]
13 page 1323 redacted – private session
5 [Open session]
6 JUDGE RODRIGUES: [Interpretation] We are now
7 in a public session. Thank you for your attention,
8 Mr. O'Sullivan. Thank you.
9 MR. O'SULLIVAN: At one point in your
10 decision, I believe I heard you say that henceforth all
11 pleadings should be filed simultaneously in French and
12 English. Is that correct?
13 JUDGE RODRIGUES: [Interpretation] Yes, you
14 heard well.
15 MR. O'SULLIVAN: Now, does that mean that --
16 there are times, and we take the example of the
17 Prosecution's request for pseudonyms, a lengthy
18 document, one that needs to be put out in writing for
19 the Bench and for the parties to understand, that is
20 going to cause considerable delays, I submit, in
21 requiring translation. First of all, the time frame.
22 Second of all, have arrangements been made
23 with the Registry to provide the Defence with
24 appropriate funding for translation services? Because
25 some of these motions are very short. Some of them,
1 such as final submissions, will likely be hundreds of
2 pages long. And the intermediary example is one that
3 we have before us on the protection of witnesses, which
4 was lengthy, 25 pages or so, I believe, and one that
5 will take time to prepare and translate.
6 It's just the practicalities of that aspect
7 of the ruling that I would like some clarification on.
8 Thank you.
9 JUDGE RODRIGUES: [Interpretation] Yes,
10 Mr. O'Sullivan, we are fully aware of the
11 implications. But one thing is sure: There are two
12 official languages in the Tribunal. I personally
13 prefer French, and I never have translations into
14 French. If we begin to do that, if the motions, if the
15 documents are filed in both languages, then we will be
16 able to work in a different manner.
17 I wish to say that I think it was only last
18 Friday that I received the French translation of the
19 pre-trial brief of the Prosecution. If I were to
20 refuse to work in both languages, then this trial could
21 not have begun. So that if we really begin working in
22 both languages, I think all of us have -- in this
23 Chamber, we are working in both languages. So after
24 all, we have the right to work in both languages.
25 Perhaps this will be the only Chamber working in two
1 languages. But measures have to be taken. Whether it
2 costs money or not, we have to adjust to this
3 situation. Perhaps it will take time. We will adjust
4 gradually. But we have to bear in mind that the
5 Tribunal works in two official languages, and they have
6 to be put in motion.
7 MR. O'SULLIVAN: [Interpretation] I understand
8 quite well that there are two official languages. But
9 there is the practical side of translating a document
10 which is first drafted in English or in French, and I
11 understand in principle. We do not wish to prolong
12 things. A motion has to be submitted seven days in
13 advance, but that will become 14 or 21 days if these
14 things simply cannot be translated.
15 JUDGE RODRIGUES: I will give you an example
16 of what we are speaking about.
17 If all people could speak the two languages,
18 there are no problems. The problem exists because
19 there are people who don't speak the two languages. So
20 we know, we are aware, of these practical questions.
21 But always the documents have to be translated after.
22 Why not translate them before? It's some kind of
23 reorganisation of the things. The money and the time
24 we spend, we always spend the time and the money. It's
25 a question of reorganisation, to reorganise the things,
1 I think.
2 So maybe all of us have to make some effort
3 to do this. Because the pre-trial brief of the
4 Prosecutor was translated now. Why not translate it
5 before? So I think we have to make really sincere
6 efforts to do this.
7 As I said, this Trial Chamber works in two
8 languages, and we need to work -- we have difficulties
9 today even because we work in two languages. If we
10 would have all the documents in French, and even in
11 English, maybe we would succeed earlier and maybe we
12 might have other results. But anyway, with all these
13 difficulties, we tried, and I think we succeeded.
14 [Interpretation] To wind up this discussion,
15 I know that I have caused the interpreters a lot of
16 problems by changing languages, and I apologise, but an
17 effort needs to be made, I think.
18 It is a decision of the Chamber which we will
19 try to implement. I think the whole Tribunal and all
20 the other Chambers should adopt this rule as well,
21 because as you know, other international courts always
22 publish and always accept documents in the official
23 languages. It is in the Statute; it is clearly written
24 that there are two official languages in this
1 In any event, we are always available and
2 ready to consider exceptional circumstances. I think
3 that you know that this Chamber has published a
4 judgement a few months ago. We still don't have the
6 I think that we have no other matters to
7 address today, and I truly hope that we will be here
8 tomorrow to recommence our trial at 9.30. So we will
9 see you all tomorrow. Thank you all.
10 --- Whereupon the hearing adjourned at
11 2.25 p.m., to be reconvened on Thursday,
12 the 4th day of May, 2000, at 9.30 a.m.