Tribunal Criminal Tribunal for the Former Yugoslavia

Page 3519

1 Tuesday, 4 July 2000

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 4.03 p.m.

5 [The accused entered court]

6 JUDGE RODRIGUES: [Interpretation] You may be seated.

7 Good afternoon, once again. We are here to render the decisions

8 of the Chamber following the Status Conferences that we had on the 6th and

9 the 14th of June. After that, we are also here in order to hear the

10 submissions of the Defence of Zigic regarding the defence of alibi.

11 Before beginning, in telling you about the rulings of the Chamber,

12 I should like to ask you whether the Zigic Defence wishes to be alone or

13 whether all the accused should be present and their Defence counsel.

14 Mr. Tosic.

15 MR. TOSIC: [Interpretation] Your Honour, in view of the fact that

16 the charges for which we will use the defence of alibi, because it relates

17 to the Keraterm camp, we feel that there is no need for the other accused

18 to be present during that part of the proceedings. Thank you.

19 JUDGE RODRIGUES: [Interpretation] Ms. Hollis, what is your

20 opinion?

21 MS. HOLLIS: Your Honour, we leave it to the Court. We have no

22 preference either way.

23 JUDGE RODRIGUES: [Interpretation] We're going to deal with the

24 rulings, then we'll have a short break, and after that we will resume with

25 the Zigic Defence counsel.

Page 3520

1 The first point: Decisions.

2 A certain number of questions were raised during the Status

3 Conferences of the 6th and 14th of June this year. We will address, in

4 turn, the question of the admission of prior statements, the admission of

5 the photograph marked 3/31, the possibility or not for the parties to take

6 the floor again after the questions of the Judges, as well as the prior

7 notification of the points which will be addressed by each witness.

8 Regarding the prior statements of witnesses, three questions were

9 raised by the parties. The first question. The Prosecution has suggested

10 that we admit as an exhibit the prior declaration of an appearing

11 witness. The examination-in-chief would basically consist of asking the

12 witness to authenticate that statement. The question is whether the

13 Prosecutor can limit her examination-in-chief to having the witness

14 confirm the prior declaration he made and to request that it be admitted

15 into evidence, in which case the Defence would be in a situation as to

16 have to conduct the cross-examination on the only basis or almost the sole

17 basis of a written document.

18 The Defence counsel of the accused Kvocka, Prcac, Kos, and Zigic

19 were opposed to this proposition, arguing on the one hand that it violated

20 the right of the accused to question or have questioned witnesses against

21 him, guaranteed by the Statute in Article 21, paragraph 4, line (e), and

22 on the other hand, that it is contrary to the principle of orality of

23 hearings envisaged by Rule 90(A) of the Rules of Procedure and Evidence.

24 The Prosecutor, on the other hand, argued that such a practice

25 would not violate either Article 21, paragraph 4(e) of the Statute, nor

Page 3521

1 Rule 90(A) of the Rules of Procedure and Evidence, as the witness would

2 appear and could be subjected to any questions that the Defence or the

3 Judges might wish to put to him. This procedure would also have the

4 advantage, according to the Prosecutor, to speed up the proceedings.

5 The second question regarding the prior statements of witnesses,

6 was also raised by the Defence of the accused Kvocka, Prcac, Kos, and

7 Zigic. They requested that excerpts of prior statements used, with the

8 sole aim of impeaching a witness, could be admitted into evidence.

9 The Prosecution was not opposed to such an admission with the

10 purpose of impeaching the witness. However, it believed that it would be

11 more appropriate, under those circumstances, to admit the statement in its

12 entirety so that the Judges might be in a position to judge the context

13 within which the submission that the Defence bases its arguments on fits

14 into. Under these conditions, the statement could be read also for its

15 content and not only for the purpose of impeaching the witness. That is

16 why, in the case of the admission of a statement in its entirety, the

17 Prosecution would not have any objection to the other parties having a

18 second cross-examination specifically on the elements in the statement

19 which are detrimental to their client.

20 The Defence for the accused Radic was opposed to such an

21 admission, arguing that the risk was that it could provide additional

22 information which the other accused would not have the possibility to

23 challenge, and a second cross-examination would considerably slow down the

24 proceedings.

25 A third question has to do with the transcripts of witness

Page 3522

1 testimony from other cases before this Tribunal. The question was to see

2 whether it was necessary to submit those statements into evidence, or if

3 they were public, all parties and the Judges could refer to them without

4 necessarily them being formally admitted into evidence. The Prosecution,

5 as well as the Defence, took a position in favour of the formal admission

6 of those transcripts.

7 As regards the two first points referring to prior statements, the

8 Chamber rules to reject the admission of those prior statements. The

9 Chamber bore in mind, in taking its decision, the requirements of

10 expedition and fair proceedings which should appreciate the specific

11 situation of each case and the joint trial of several accused. The

12 Chamber feels that the procedure proposed by the Prosecution could call in

13 jeopardy the principle of orality of debates. Consequently, the exhibit

14 marked P3/98 is not admitted into evidence.

15 As regards the admission of statements with the view to impeaching

16 a witness, it is the position of the Chamber that all prior statements of

17 a witness appearing in court may be used with the aim of calling in

18 question his credibility without it being necessary to admit the said

19 statement or relevant passages of such a statement into evidence. It is

20 sufficient for the parties to quote, at the hearing, the paragraphs which

21 they consider to be relevant and which, in that way, will be entered into

22 the record of the hearing. The Chamber, therefore, rejects the admission

23 of exhibits tendered as exhibit numbers P3/89, D28/1, and D28/1A.

24 Concerning the admission of transcripts from hearings of witnesses

25 who testified in other cases, the Chamber responds to the wishes of the

Page 3523

1 parties and rules that those said transcripts cannot be taken into

2 consideration, unless, and only after they are formally admitted into

3 evidence. The Chamber specifies, however, that such a decision is without

4 prejudice regarding the admission of statements used with a view to

5 challenging the credibility of witnesses.

6 Another point of debate between the parties had to do with the

7 admission into evidence of a photograph showing bodily injuries. That

8 photograph was tendered by the Prosecution and marked 3/31. The Defence

9 objected to its admission, arguing on the one hand, that there is not

10 enough information about the source and circumstances under which that

11 photograph was taken, and on the other hand, that it was of poor quality.

12 The Chamber decides to admit the photograph pursuant to Rule 89(C)

13 of the Rules of Procedure and Evidence. The Chamber considers

14 specifically that the indications given by the Prosecutor regarding the

15 origin of the photograph are sufficient to give it probative value. It

16 notes also that the photograph is a relevant element in order to be able

17 to weigh the injuries suffered by certain victims.

18 The Radic Defence also expressed the wish that the parties may be

19 allowed to speak after the Judges if the questions put by the Judges

20 contained prejudicial errors for their clients. The Prosecution, on the

21 other hand, proposed that the parties may put a certain number of

22 questions after the Judges in order to clarify or further develop points

23 raised by the Judges and which had not been addressed by the parties

24 during their cross-examination.

25 It is the opinion of the Chamber regarding these matters that, in

Page 3524

1 principle, the parties shall not take the floor after the Judges except in

2 the event of a material error, an obvious error, regarding the testimony

3 that has just been made by a witness. In which case, the parties may, in

4 summary form and respectfully, make certain observations to the Judges.

5 Otherwise, it is up to them to present their arguments to the opposite by

6 calling a witness or during their submissions and closing statements.

7 Finally, the Defence of the accused Kvocka and Kos questioned the

8 practice of the Prosecution which, on several occasions, questioned the

9 witnesses on points other than those notified in their pre-trial brief.

10 The parties agreed during the Status Conference of the 14th of June, that

11 the Prosecution should indicate before the beginning of testimony the

12 points on which the witness is going to testify. The Chamber invites the

13 Prosecution to bear in mind in so doing, as far as possible, of the work

14 carried out in the pre-trial phase, and specifically in its pre-trial

15 brief, submitted in accordance with Article 65 ter, paragraph (E), (iv)(c)

16 of the Rules of Procedure and Evidence.

17 We also have, and I forgot to mention that in today's agenda, the

18 motion of the Prosecution concerning Witness AM. Perhaps I should open

19 the debate now before going on to other questions of the defence of alibi

20 and the Zigic Defence.

21 Ms. Hollis, are you in a position to comment? I see something on

22 the part of the Defence.

23 Mr. Fila.

24 MR. FILA: [Interpretation] I apologise for interrupting you,

25 Mr. President. There is no need for any discussion. The Defence agrees

Page 3525

1 with the motion of Madam Hollis.

2 JUDGE RODRIGUES: [Interpretation] Regarding protection measures,

3 the whole Defence team is in agreement? That's fantastic. Very well,

4 then. We can rule. We can save time and we will not be hearing the nice

5 voice of Ms. Hollis.

6 Finally, the Chamber received on the 29th of June a motion whereby

7 the Prosecution requested protective measures for Witness AM. So we can

8 note that there is no objection on the part of the Defence counsel for the

9 accused, in which case the Chamber believes that in view of Article 22 of

10 the Statute and Rule 54 of the Rules of Procedure and Evidence, it is in

11 the interest of justice to grant protective measures for Witness AM.

12 Therefore, Witness AM will be given the pseudonym "AM." All information

13 concerning this witness which could identify him will be kept under seal,

14 and all information that could be transmitted to the public will be

15 redacted. During the testimony, facial distortion procedures will be

16 used.

17 So those are the rulings of the Chamber. As usual, there are some

18 things that are agreeable, others less so. But we have done everything to

19 take into account that we have several accused, that there are differences

20 of opinion. We have to bear in mind the fairness and expediency of the

21 proceedings, and in that spirit, we have found the solutions.

22 Specifically, with regard to prior statements, we have seen today

23 how this rule can be implemented without having any problems with all the

24 other parties. I think in the spirit of the Statute and of the Rules, the

25 Chamber has managed to find and establish a certain equilibrium.

Page 3526

1 We're going to have a short break now in order later to address

2 the motion of the Zigic Defence. For the Zigic Defence, Ms. Hollis and

3 the other staff members, we will be resuming in a quarter of an hour. For

4 all the others, we will be seeing you again tomorrow at 9.30.

5 [The accused withdrew]

6 --- Recess taken at 4.30 p.m.

7 [Prosecution counsel and Defence counsel for

8 Zoran Zigic present]

9 --- On resuming at 4.45 p.m.

10 [The accused Zigic entered court]

11 JUDGE RODRIGUES: [Interpretation] Mr. Tosic or Mr. Stojanovic, you

12 have the floor.

13 MR. TOSIC: [Interpretation] Your Honour, my colleague,

14 Mr. Stojanovic, will argue our motion.

15 JUDGE RODRIGUES: [Interpretation] Yes. Thank you very much,

16 Mr. Tosic.

17 Mr. Stojanovic, you have the floor. Let us hear you.

18 MR. STOJANOVIC: [Interpretation] Thank you very much, Your

19 Honour.

20 It is true that we are rather late in time, but I should like to

21 ask the possibility to discuss two additional matters concerning the

22 accused Zigic.

23 JUDGE RODRIGUES: [Interpretation] No. Now we are going to hear

24 your motion only, the motion submitted on behalf of the accused Zigic. I

25 am telling you this because we have other commitments that were scheduled

Page 3527

1 from before, so we do not have enough time for that.

2 MR. STOJANOVIC: [Interpretation] The issues would concern the

3 accused Zigic only. But I respect your decision, Your Honour. Thank

4 you.

5 JUDGE RODRIGUES: [Interpretation] Well, if you can do it fast,

6 there will be no problem. If you can say everything you have to say in

7 about ten minutes, then we will hear you.

8 MR. STOJANOVIC: [Interpretation] I believe, Your Honour, that I

9 can argue all three issues in five minutes.

10 JUDGE RODRIGUES: [Interpretation] Let us hear you, then.

11 MR. STOJANOVIC: [Interpretation] It seems that there has been a

12 minor misunderstanding with our client. Would it be possible for this

13 session to be closed? Would that be a problem, technically speaking?

14 JUDGE RODRIGUES: [Interpretation] No. I think when it comes to

15 the motion hearing, we have to be in public session, except for other

16 issues that you mentioned.

17 MR. STOJANOVIC: [Interpretation] Well, Your Honour, I personally

18 don't see any particular reason for a closed session. So if you will

19 allow me, I should like to begin.

20 First of all, let me explain our request that we be heard on the

21 issue of alibi. We have already provided you with a motion in writing,

22 and I don't think that we should repeat anything that is already contained

23 therein. Let me, however, limit myself to some general remarks.

24 It is beyond dispute that there has been an omission on behalf of

25 the Defence; however, we do not think that it will be prejudicial to

Page 3528

1 anyone. This omission, this failure occurred simply because of the fact

2 that the statements of the witnesses were taken prior to the beginning of

3 the trial, that is, around the 20th of February this year. The Defence

4 team underwent some changes at that time, so that is also one of the

5 reasons.

6 On the other hand, we are dealing here with a piece of evidence

7 which is of crucial importance for the Defence in respect of probably the

8 most difficult count with which the accused Zigic has been charged.

9 In view of that, we should like to ask the Chamber, and of course

10 bearing in mind the position of the Prosecution who can perhaps be harmed

11 with this delay, we should like to ask you, as I say, for the possibility

12 for us to present this evidence. And I think that our request is based on

13 Rule 89 of the Rules of Procedure and Evidence.

14 JUDGE RODRIGUES: [Interpretation] Could you also tell us about the

15 two other issues that you mentioned so that the Prosecutor can respond to

16 all of them?

17 MR. STOJANOVIC: [Interpretation] The next thing, Your Honour,

18 concerns the request of the Defence for a medical examination of our

19 client. We have already received your decision, and we are very pleased

20 with it. However, there has been a need for an additional examination, a

21 supplement to the examination of the accused. It is perhaps a minor

22 detail; however, we believe it is quite important. It concerns the ears

23 of Mr. Zigic, and we should like that he be examined so that we can find

24 out whether his ears have ever been pierced for earrings. This is

25 relevant because today Witness Avdagic stated that during the beating of

Page 3529

1 Medunjanin, a man wearing an earring participated in that particular

2 beating.

3 Your Honour, I'm mindful of the judicial economy. We have already

4 submitted a written request for a medical examination, and you have issued

5 a decision in writing. This would only be a slight addendum to this

6 request for a medical examination, and if it is possible, I think that it

7 can be dealt with in a practical manner, without necessarily issuing a

8 formal decision on this particular issue. I have finished with the second

9 issue.

10 JUDGE RODRIGUES: [Interpretation] There is a third one, I

11 believe.

12 MR. STOJANOVIC: [Interpretation] You're right, Your Honour.

13 THE COURT REPORTER: I'm getting the French interpretation.

14 JUDGE RODRIGUES: [Interpretation] I'm sorry. I'm not getting any

15 interpretation. What is happening? Yes, I can hear the interpreters

16 now. How about our court reporter?

17 THE COURT REPORTER: Your Honour, I'm getting both French and

18 English but I think it's okay now.

19 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic, could you please

20 repeat what you have just said. I apologise if this is inconvenient for

21 you, but could you start again with the third matter.

22 MR. STOJANOVIC: [Interpretation] Of course, Your Honour. You

23 haven't missed out anything, really.

24 Our client wishes to participate in a most active way in his

25 defence, and this is something we should be grateful for, I mean my

Page 3530

1 colleague and myself. However, he has asked us to draw the Chamber's

2 attention to the fact that he has not been receiving all of the documents

3 which, according to our assessment and according to Rule 66(A), he should

4 have in the original and in his mother tongue. I have a pile of such

5 documents, and I do agree that part of these documents would fall in the

6 group of documents that have to be treated in accordance with the said

7 Rule. However, I think it might be easier for me to make a written list

8 of such documents and submit it to my learned colleague, Ms. Hollis, and

9 we can try to solve this issue without troubling the Chamber with it.

10 That would be all, Your Honour.

11 JUDGE RODRIGUES: [Interpretation] Thank you very much,

12 Mr. Stojanovic.

13 Ms. Hollis, three issues, three matters to be addressed.

14 MS. HOLLIS: Thank you, Your Honour. Let me take them in reverse

15 order.

16 Providing the accused copies of what we provide to the Defence, we

17 don't have to provide the accused a separate copy. If we give it to the

18 Defence and the Defence wants to make copies for the accused, that's up to

19 them. That's not our obligation. That's our position on that one.

20 Second one: Medical examination of the accused Zigic. We don't

21 quite understand the relevance of the examination that's requested,

22 because the witness today did not say that the earring was for a pierced

23 ear. However, it's for Your Honours to determine if you will allow a

24 medical examination. The admission of the results of such an examination

25 is a different issue that we may take issue with. But in terms of the

Page 3531

1 medical examination itself, that's for Your Honours to decide.

2 In terms of alibi, the Prosecution suggests that Rule 89 is not

3 dispositive of the issue. That is a general provision in the Rules and

4 that is subject to other Rules, so it is not controlling in this

5 instance.

6 The Prosecution further suggests that Rules such as Rule 67(A),

7 requiring notice of certain defences, is well within the authority of

8 these Judges to make as part of the inherent authority of Judges to

9 control the proceedings in a way as to guarantee a fair, efficient, and

10 timely proceeding.

11 We suggest that perhaps in resolution of the issue of alibi, that

12 the two primary provisions Your Honours may want to take into account are,

13 first of all, Article 20.1 of the Statute. If we look at Article 20.1 of

14 the Statute, it indicates that "The Trial Chambers shall ensure that a

15 trial is fair and expeditious and that proceedings are conducted in

16 accordance with the Rules of Procedure and Evidence, with full respect for

17 the rights of the accused ..."

18 The Rule we would draw Your Honours' attention to as being

19 particularly important here, we suggest, is Rule 127, which indicates that

20 you may vary time limits imposed by the Rules upon a showing of good

21 cause.

22 The bottom line for the Prosecution, Your Honours, is this: For

23 Your Honours to determine this issue, you must determine if a fair trial

24 requires that you vary this time limit, and in determining if a fair trial

25 requires that you look at several factors, one of those factors is whether

Page 3532

1 the accused has shown good cause for failing to comply with the time

2 requirement. That's consistent with Rule 127. Secondly, Your Honours, we

3 would suggest you look at the prejudice that will be caused by the failure

4 to provide timely notice. Thirdly, we suggest you look at whether there

5 are other remedies other than exclusion of evidence which could correct

6 the prejudices that may be caused by the untimely notice.

7 It's only when you weigh factors such as these that you can

8 determine what it means to say "a fair trial," because the trial must be

9 fair not just to the accused but to the other party as well. We suggest

10 that when you review those factors in the context of this case, that if

11 the Defence makes a proper showing of good cause, which we suggest to date

12 they have not made, but should they make such a proper showing of good

13 cause, that it is certainly within the discretion of Your Honours to allow

14 them to proceed with a full alibi defence if you determine that is what is

15 required for a fair trial.

16 We will tell you that from the Prosecution's point of view, we do

17 not believe that, at least the Prosecution as a party has not been so

18 prejudiced by this untimely filing that we could not proceed. We believe

19 we could proceed and deal with an alibi defence. So in terms of prejudice

20 to the Prosecution, we believe it is not such that you would be required

21 to preclude this defence. We believe that the bottom line is that they

22 must make a showing of good cause as to why the notice wasn't given in a

23 timely fashion, and once Your Honours are satisfied of that, then it is

24 purely within Your Honours' discretion as to whether you will allow them

25 to proceed with this defence if you determine that a fair trial requires

Page 3533

1 it.

2 JUDGE WALD: Ms. Hollis, I just have a question. Rule 67 on

3 disclosure says that the Defence shall notify the Prosecutor of its intent

4 to offer the defence of alibi; that's 67(A)(ii)(a). But 67(B)

5 says, "Failure of the defence to provide notice shall not limit the right

6 of the accused to testify on the above defences." So the Rule seems

7 pretty clear that even if you didn't allow alibi, if the accused chose to

8 take the stand, the accused could -- let me just ask you a question. How

9 do you relate that to 94 ter, which is the so-called affidavit. Suppose

10 the defendant takes the stand as a witness, testifies to his alibi. Do

11 you think 94 ter can come into play so that he could get corroboration?

12 MS. HOLLIS: Your Honour, we would have to say that the language

13 of that Rule would certainly seem to bring such evidence into that Rule,

14 because it would be corroborating this accused. Now, it's corroboration

15 on a pretty material point, but the Rule doesn't limit it that way. And

16 the Rule does say that the opposing party could ask for the opportunity to

17 cross-examine, and then it's up to the Chamber. But I think theoretically

18 it would come within that and could come within that.

19 JUDGE WALD: Also, while I have you, do you interpret 67(A)(ii)(a)

20 that when the Defence notifies, whether it's initially as called for by

21 the Rule or if the time limits were, it says that the notification has

22 to "specify the place or places at which the accused claims to have been

23 present ..." and "... the names or addresses of witnesses and any other

24 evidence upon which the accused intends to rely ..." So am I correct in

25 believing that you would say that as part of any showing of good cause, at

Page 3534

1 least those specifics would have to be put on the record?

2 MS. HOLLIS: Your Honour, I'm not sure we'd say that --


4 MS. HOLLIS: -- because we're very mindful that investigations,

5 both for the Prosecution and the Defence, in these kinds of cases are very

6 difficult. So we're of the mind that the Defence can initially determine

7 there is a potential alibi defence based on what the accused relates to

8 them, and initial information that they have. But they may not be able to

9 perfect that alibi defence until later on in the proceedings.

10 So it's not the Prosecution's position that they would have to

11 provide the entire thing at once, but we submit if they do not, that they

12 would have to show good cause as to why they are providing this

13 information later in time, because we do realise the reality of the

14 situation, which I think sometimes makes it difficult for them to present

15 it before trial in a completed fashion.

16 JUDGE WALD: Thank you.

17 MS. HOLLIS: Your Honours, if I might beg your indulgence. I do

18 have one additional relation in relation to this alibi motion that was

19 filed by the Defence I would like to put on the record, and that is that

20 at paragraph 16, Your Honours, the Defence indicates that "alibi is not

21 the only defence regarding the above-mentioned charge. The Defence will

22 present other evidence."

23 Your Honours, to the extent this other evidence will fall into the

24 category of a special defence, then we would again ask for notice of that

25 defence now or as soon as possible, in accordance with Rule 67. So

Page 3535

1 because the Defence raises that in their motion, we would like to put that

2 on the record. If they are going to raise other special defences, we want

3 notice of those at the very soonest possible time.

4 Thank you, Your Honours.

5 JUDGE RODRIGUES: [Interpretation] Thank you very much,

6 Ms. Hollis.

7 I shall now turn to Mr. Stojanovic. I have a few questions for

8 you.

9 The fact that the defence of alibi came to your knowledge in

10 September 1992, and Mr. Zigic has been in detention for a very long time,

11 almost three years, why do you raise the issue of alibi only now? There

12 are other questions that I should perhaps ask, but I am restricted here by

13 the lawyer-client privilege issue. You can answer my question or not.

14 Have other Defence lawyers thought of the same kind of defence, and if so,

15 why hasn't that been stated openly? Why haven't you come to us and told

16 us, "Well, we would like to present a defence of alibi but we have certain

17 problems concerning that," and so on and so forth. Why do you bring it up

18 only now?

19 MR. STOJANOVIC: [Interpretation] I agree with you, Your Honour,

20 that it is a very important question and we should provide an answer to

21 that. We do have witnesses of alibi, and we are prepared to disclose

22 their names, although I don't think this is our obligation. One statement

23 was given on the 18th of February and the other on the 20th of February.

24 JUDGE RODRIGUES: [Interpretation] I'm sorry to interrupt you,

25 Mr. Stojanovic, but my question was of a general nature. I asked you,

Page 3536

1 "Why only now are you bringing it up?" Those witnesses existed,

2 according to what you say, in September 1992. Why do they appear only

3 now?

4 MR. STOJANOVIC: [Interpretation] Your Honour, I think that this

5 provision requires not only a simple notification of alibi but also

6 certain annexes to the notification.

7 JUDGE RODRIGUES: [Interpretation] Sorry to interrupt you once

8 again. I'm not interested to know whether this provision provides for

9 this particular issue or not. I'm asking this question for the third

10 time: I should like to know why you're bringing up the defence of alibi

11 only now. The events were known in September 1992 and those witnesses

12 existed at that time as well.

13 MR. STOJANOVIC: [Interpretation] I'm sorry, Your Honour, I don't

14 know if I'm competent enough to give this answer because I took up this

15 defence later on. I don't know why things happened in this way, and I

16 don't know why it was not presented in a proper manner, via notification.

17 I don't know whether the previous Defence team was erroneous in

18 its interpretation of this provision, of this Rule, whether they thought

19 that a simple notification was not enough, whether they thought that they

20 had to submit, together with the written notification, some additional

21 documents referred to in this Rule.

22 I personally, Your Honour, think that this is a failure, indeed.

23 But I have always believed in essence, in the matter itself rather than in

24 the pure form. I don't think that because of this failure we should be

25 denied a possibility to present facts in a proper fashion. I do not think

Page 3537

1 that we should restrict ourselves because of this form of failure.

2 We do have the statements of witnesses and --

3 JUDGE RODRIGUES: [Interpretation] Even if we can agree that it is

4 a formal omission, there is a substantive one that I wish to clear up with

5 you. When did you, as Defence counsel, learn about the identity of the

6 witnesses, the identity and the addresses of those witnesses?

7 MR. STOJANOVIC: [Interpretation] Are you asking me personally or

8 the Defence team?

9 JUDGE RODRIGUES: [Interpretation] Now, since it is you who are

10 speaking of this defence of alibi, the question is addressed to you.

11 MR. STOJANOVIC: [Interpretation] I think this was at the beginning

12 of this year when we learnt of this possibility.

13 You see, there is a great deal of resistance to testifying, among

14 the people in Prijedor, in favour of the Defence, and perhaps it would

15 have not been correct on our part to give notification of defence of alibi

16 without having prior agreement, even orally, that somebody would testify

17 for us. These witnesses, only in February of this year, after which they

18 gave a written statement, only then did they declare that they were ready

19 to come here at a public hearing, without any protective measures, to

20 testify.

21 JUDGE RODRIGUES: [Interpretation] I can understand all that. But

22 I don't know how many Status Conferences we have had in this case, and the

23 Initial Appearance of Mr. Zigic, and if those facts were already

24 established in 1992, with the identities and everything else -- but never

25 mind. Let's go on to another matter.

Page 3538

1 Can you clarify a little more paragraph 16. When you mention

2 other possibilities of defence, what exactly did you mean? The same

3 paragraph that Ms. Hollis referred to.

4 MR. STOJANOVIC: [Interpretation] I should like to inform Your

5 Honours and Ms. Hollis that we do not envisage any other special defence

6 that is stipulated and for which notification is required.

7 Our intention is through witnesses who will tell what happened

8 that night in Keraterm, simply to ask them whether Mr. Zigic was present

9 there, those same witnesses who were there that night when all this

10 happened. I think the date is the 24th of July, 1992. We will be asking

11 witnesses of the Prosecution whether Mr. Zigic was there at all in

12 Keraterm that day or that night. So no special defence.

13 JUDGE RODRIGUES: [Interpretation] I see.

14 MR. STOJANOVIC: [Interpretation] Evidence that he was elsewhere

15 will be produced, and also evidence that he was not where the crime took

16 place.

17 JUDGE RODRIGUES: [Interpretation] But we must put the question

18 correctly, and I am saying this in reference to Mr. Tosic. I'm sorry for

19 mentioning you. I don't want that to go in the transcript. You cannot

20 ask the witness, "Did you see him," and then conclude from that that he

21 wasn't there. So you must channel your work and conduct it properly. I

22 just wish to draw your attention to that.

23 We're going to close. The Chamber will discuss the matter and

24 render its decision in the days to come, in writing.

25 The hearing is adjourned for today.

Page 3539

1 --- Whereupon the Status Conference

2 adjourned at 5.15 p.m.