1 Tuesday, 11 July 2000
2 [Status Conference]
3 --- Upon commencing at 4.00 p.m.
4 [The accused entered court]
5 JUDGE RODRIGUES: [Interpretation] You may be seated. Good
7 For the record, we are the same except for the Office of the
8 Prosecutor, where we see Mr. Saxon. As for the others, we are the same as
9 we were this morning.
10 So here we are to hold a Status Conference, as previously
11 announced. I propose to you the following agenda consisting of basically
12 four points, that is, a timetable; a schedule to witnesses, and to be more
13 precise, the number of witnesses; third point, the examination-in-chief
14 and cross-examination of witnesses; and fourth point, miscellaneous or
15 other matters which have not been covered by these items and which the
16 parties may wish to address.
17 As you know, we wanted to get together this afternoon in order to
18 take stock of the current proceedings which, I should like to remind you,
19 started four months ago on the 28th of February, and it appears as if it
20 was yesterday. We will see each other again tomorrow, but after that the
21 Judges will be having a Plenary meeting for the rest of the week, and then
22 we will have a very long break. That is why I think this is a welcome
23 opportunity for us to discuss matters and to have what is known as
24 brainstorming but in an organised fashion.
25 So the first item, the schedule. We are going to stop hearings of
1 this case for more or less a month and a half. We will be resuming on the
2 28th of August and going on until the 2nd of September, and then from the
3 7th of September to the 8th of September, and then the 11th to the 15th of
4 September, and then the 25th to the 29th of September, and finally, from
5 the 2nd of October to the 6th of October. I'm saying "finally" because on
6 that date, at the latest, the Prosecution should have completed the
7 production of evidence, and I add that this period includes the
8 cross-examination of witnesses.
9 In principle, the Defence case should begin on the 4th of December
10 until the 15th of December this year. So we're talking about the
11 timetable for this calendar year. Since we're talking about the possible
12 beginning of the Defence case, that is, the production of Defence
13 evidence, perhaps I could ask you to bear in mind what Rule 65 ter (G)
14 tells us in connection with what I have discussed many times regarding the
15 pre-trial of the Defence.
16 I think that in this case we worked hard, and I think that as we
17 make progress, we can see more clearly -- we can see things more clearly,
18 but I think that around the first week of November, perhaps the 6th of
19 November, we could have a Status Conference to really launch and prepare
20 the pre-trial phase for the Defence regarding general questions only; that
21 is, to see what we need to see and identify so that in the week of the
22 20th or perhaps of the 27th of November, we can work more concretely on
23 several points which need to be considered and which are indicated in Rule
24 65 ter (G).
25 Just to have an idea, we need a list of witnesses the Defence
1 intends to call specifying the name and pseudonym of each witness, a
2 summary of the facts on which witness will testify, the points in the
3 indictment as to which each witness will testify, and the estimated length
4 of time required for each witness to testify, and finally, a list of
5 exhibits the Defence intends to offer in its case stating, where possible,
6 whether the Prosecutor has any objection as to its authenticity. So now
7 it is the other side of the coin, as one might say, the same that applied
8 to the Prosecution here. We must include all the other matters like
9 affidavits, depositions by Presiding Officers, possibly expert witnesses.
10 What I was saying, that the 6th of November, perhaps, I am not
11 going to fix the date now, but possibly we could then discuss in very
12 general terms the pre-trial stage of the Defence. After that, we will
13 have the next week for more concrete preparations.
14 I have told you this only because when talking about the
15 timetable, we mentioned the end of the Prosecution case and, naturally,
16 then comes the beginning of the Defence case when we have to discuss the
17 pre-trial stage for the Defence case or, rather, the pre-Defence case, and
18 that is why I have mentioned Rule 65 ter.
19 In any event, that is as far as the timetable is concerned and
20 some general ideas on which I should like to hear the parties. So I
21 should like to give the floor to Ms. Hollis first and then to each of the
22 Defence counsel.
23 Ms. Hollis, is this acceptable? Does it suit you, this
24 timetable? Is it a good one for your work, and will you manage to
25 complete your work, or do you have any other suggestions? But don't
1 interfere much with the deadline, please, so we can get this finished.
2 MS. HOLLIS: Your Honour, I'm not the most perceptive of people,
3 but I do understand that Your Honours are very committed to these
4 deadlines, so we won't attempt to interfere with your deadlines.
5 In regard to the schedule you have laid out for the Prosecution
6 case in-chief, we have before the beginning of this session spent time
7 looking at the remaining witnesses, looking at the estimate of time that
8 we have in the submission that we made, and we believe that the timetable
9 you have given for us should be sufficient; but we're basing that, Your
10 Honours, quite candidly, we're basing that on four hours a day of
11 testimony five days a week, so that if something interferes substantially
12 with that, that could, of course, throw off the timetable, but that is
13 what we're basing our calculations on.
14 Given that, we think that it's certainly doable. It's something
15 that we are planning to do, and we have already set aside several days at
16 the conclusion of this session to sit down, to review where we are with
17 our case, what we still need, and to update and refine our plan based on
18 that comprehensive review.
19 Your Honours, if you are taking questions, and perhaps the Defence
20 will ask this as well, I would simply inquire if Your Honours envision
21 that between the break in the Prosecution case and the commencement of the
22 Defence case in December, have Your Honours envisioned that some of that
23 time will be spent taking depositions, or have Your Honours envisioned
24 that that would happen after that date? That would be a question that the
25 Prosecution would be interested in.
1 Other than that, Your Honour, the general time frame looks fine to
3 JUDGE RODRIGUES: [Interpretation] Ms. Hollis, perhaps under the
4 item "Miscellaneous" we can come back to this question of deposition
6 I should now like to give the floor to the Defence. Mr. Krstan
7 Simic, your comments, please.
8 MR. K. SIMIC: [Interpretation] Thank you, Your Honours.
9 First of all, it gives me pleasure to note that the Chamber has
10 given an indication to the Defence, enough advance warning when the
11 Defence will begin its case. Also, the question of deposition is of
12 interest to us, and we will come to that later, as you have suggested, but
13 I'm afraid there may be a technical error here when mentioning the
15 If I understood correctly, the beginning is the 28th of August
16 until the 2nd of September. The 2nd of September is a Saturday, according
17 to our calculator.
18 JUDGE RODRIGUES: [Interpretation] I'm sorry, I was talking about
19 the 2nd of October to the 6th of October, the last week for the
20 Prosecution case, and the Defence can begin on the 4th of December this
21 year until the 15th of December.
22 MR. K. SIMIC: [Interpretation] Your Honour, I understood that. I
23 was talking about our first meeting after the break, the 28th of August
24 until the 2nd of September. The 2nd of September, I'm afraid, is a
1 JUDGE RIAD: I think you can just put the 1st of September instead
2 of the 2nd of September. I think nobody will question that.
3 MR. K. SIMIC: [Interpretation] Thank you.
4 JUDGE RODRIGUES: [Interpretation] So in my papers it says the 28th
5 of August until the 2nd of September. Never mind, it's the week anyway,
6 maybe that's a -- thank you, in any event.
7 Have you any other comments to make, Mr. Krstan Simic?
8 MR. K. SIMIC: [Interpretation] No, Your Honour.
9 JUDGE RODRIGUES: [Interpretation] Very well. Mr. Nikolic.
10 MR. NIKOLIC: [Interpretation] Thank you, Your Honours. I have no
11 comments or observations. The time frame seems fine.
12 We have kept some kind of statistics. Out of the 67 witnesses
13 that the Prosecutor proposed to call before this Chamber to prove its
14 case, with today's day we have finished 21 witnesses, and I assume that
15 within the time limits you have set, it is quite possible for the
16 Prosecutor to complete its case.
17 Everything that comes after that suits the Defence. This is
18 something that we have already stressed repeatedly at Status Conferences
19 that the Defence has far fewer witnesses than the opposing party, and I
20 think we will fit our case very easily into the time available to us.
21 JUDGE RODRIGUES: [Interpretation] That's fantastic, Mr. Nikolic.
22 Thank you very much.
23 Mr. Fila.
24 MR. FILA: [Interpretation] Mr. President, everything suits me,
25 except I would like to know when the depositions will be taken in Banja
1 Luka. When are we going to begin that? That is the only date that the
2 Chamber has still not been able to fix, as my learned friend has mentioned
4 JUDGE RODRIGUES: [Interpretation] You would like to cover us a
5 good lunch in Banja Luka, Mr. Fila, I think. No, I'm joking a bit.
6 Fine. Thank you, Mr. Fila.
7 Mr. Tosic.
8 Mr. Fila, we will cover this question of depositions in Banja Luka
9 under the item "Other Outstandings Matters."
10 Mr. Tosic.
11 MR. TOSIC: [Interpretation] Your Honours, as far as the timetable
12 is concerned, our Defence team has no objections or remarks to make. It
13 suits us very well. Thank you.
14 JUDGE RODRIGUES: [Interpretation] Very well, Mr. Tosic.
15 Mr. Jovan Simic.
16 MR. J. SIMIC: [Interpretation] Your Honour, if the Prosecution
17 finishes its case as planned, the Defence of Mr. Prcac will certainly be
18 able to fit into the timetable as well.
19 JUDGE RODRIGUES: [Interpretation] Very well. Thank you very much,
20 Mr. Jovan Simic.
21 So we with have come to the second item of the agenda. I shall
22 try to shorten the time for the Prosecutor. We will see how. That is,
23 we're going to respect the dates, but perhaps if we see things from a
24 particular angle, perhaps we may be able to expedite things. Let me make
25 a few propositions, and then we'll see your response.
1 The Chamber and Mr. Nikolic mentioned this, that we have up till
2 now heard 21 witnesses. We're hearing the 22nd out of the 71 witnesses
3 which the Prosecutor intends to call to the box, without counting the
4 experts. So the witnesses were meant to testify for 90 minutes for some
5 of them, 120 others, and there were different times envisaged for others,
6 but average was between 90 and 120 minutes.
7 It is true that the discussions were frequently interrupted to
8 address procedural matters and others, and that the Chamber took steps to
9 organise Status Conferences in the afternoon. I think that was a good
10 step taken, in my opinion, this decision to spend the mornings and devote
11 them to witnesses, and the afternoons for our own discussions. I think
12 good decisions should be maintained. However, the Chamber heard the first
13 21 witnesses in more or less 30 days of hearings, which means one witness
14 in 1.3 days. That is almost one witness per one and a half days. So this
15 rhythm of work will not allow the Prosecution to complete its case, it
16 would appear, in time.
17 The first Prosecution witnesses heard by the Chamber testified on
18 the historical background, the geographic, military, and administrative
19 context at the time and in the places covered by the indictment. However,
20 on the basis of agreement between the parties, a list of which is
21 contained in a motion of the Prosecutor of the 28th of April, 2000, the
22 Chamber took judicial notice of facts on which agreement was reached and
23 judicial decisions taken on that basis. Adjudicated facts concern
24 primarily the historical, geographic, military, and administrative context
25 of the facts alleged in the indictment, and Chamber ruled that in the
1 places and in the time period covered by the indictment, there was a
2 massive and systematic attack, again, the Muslim and Croat population of
3 Prijedor municipality, which was part of an armed conflict, but also that
4 the facts described in that indictment and committed at the expense of
5 these populations, and specifically at the expense of the detainees of
6 Omarska, Keraterm, and Trnopolje are related to that conflict.
7 Outside that agreement, the Defence frequently presented views,
8 for the Prosecution was mainly concerned with the responsibility of the
9 accused in relation to a series of facts which the Defence admitted as
10 having existed. In order to prove the allegations contained in the
11 indictment, the Prosecution no longer needed to prove the common elements
12 in Articles 3 and 5 of the Statute.
13 A part of the facts which were not agreed upon by the parties
14 concern the conditions in the camps. The Chamber heard a certain number
15 of witnesses, Prosecution witnesses, who described the detention
16 conditions in the Omarska and Keraterm camps. It is still up to the
17 Prosecution to prove the crimes committed in the three cases and to what
18 extent the crimes committed can be attributed to the accused.
19 I think that the initially envisaged testimony did not take into
20 account the evidence that need not be produced. I remind both parties
21 that the witnesses need not testify on the facts that were the object of
22 an agreement. However, more than two -- furthermore, not more than two
23 witnesses should testify on the same fact unless that is justified.
24 Allow me to make a digression. We see, in a number of cases, that
25 there are 15 or 20 witnesses who all come to say the same thing. Why?
1 Why? That is the question. Perhaps two witnesses would be quite
2 sufficient. One could have an additional list of witnesses to which one
3 could refer to if necessary. In preparing cases in the Chamber, we try to
4 apply this practice. There is no sense in bringing witnesses to say the
5 same things. Why?
6 Therefore, there's another point. It is quite possible to have
7 two or three witnesses for general matters and then afterwards, if
8 necessary, to call individuals who will cover more specific matters. And
9 I am saying this because I believe that the Tribunal and the parties, too,
10 must devote to witnesses only the time that is strictly necessary. I have
11 used this expression before: The witnesses cannot be considered by the
12 Tribunal or by the parties as an umbrella that one uses in winter and one
13 puts aside in the summer.
14 And I am saying this also because of the protective measures,
15 because we really have to have that in mind. We have protective measures
16 for witnesses who frequently spend a week or two weeks here. I wonder,
17 what is the justification that these witnesses are going to give when they
18 return? They're saying to say, "I went on a holiday." Where did the
19 money come from? And even from that standpoint, I think that if a witness
20 comes here one day to prepare, the next day to testify, and goes back the
21 next day, three or four days is quite sufficient. You can say, "I went
22 somewhere to deal with such-and-such a matter." That is acceptable.
23 Therefore, either we want protective measures and we have to be
24 consistent, or we need protective measures over such a long period of time
25 when then those protective measures don't really mean much, even though
1 formally we have them in force.
2 So after having made these remarks, which are not really questions
3 -- I don't wish to act as someone who has the last word. I don't like to
4 speak ex cathedra. I am not a professor, after all; I have that advantage
5 -- I wish to put these questions before you, and I wish to ask
6 Ms. Hollis, first, regarding the decision of the Chamber regarding
7 judicial notice; and secondly, comments regarding the fact that numerous
8 witnesses testify on the same facts and the same counts, and can any
9 adjustments be made in your presentation of evidence which you would like
10 to convey to us. Also, could you give us an indication of the number of
11 witnesses that remain to be called, even if you cannot tell us today, that
13 Bearing all this in mind, I'm a bit optimistic, hoping that
14 perhaps we won't need all this time that we have attributed, but I think
15 that it is our duty to put to good use the time we have at our disposal.
16 Ms. Hollis. After that, I shall ask the Defence for their
18 MS. HOLLIS: Thank you, Your Honour. Your Honour, in regard to
19 the effects of the decision on judicial notice, I think Your Honours have
20 seen the effects in this session. Prior to that, the Prosecution was
21 asking witnesses questions that were relevant to the jurisdictional
22 elements which we had to prove, and that took quite a bit more time, as
23 Your Honours have noted.
24 We suggested, if you look at this session, you will see that we
25 have basically focused these witnesses on the elements of the substantive
1 offences, including the intent requirement for persecution, which is, that
2 these acts are performed with a discriminatory intent based either on
3 political, religious, or racial motivations -- excuse me, not motivations
4 but, rather, grounds. Some of the questioning that may not have seemed
5 particularly directly relevant goes to the discriminatory intent with
6 which different persons were brought to the camp. For example, some of
7 the questions asked of Zlata Cikota had to do with the political
8 involvement of some of the people she saw in the camp. The Prosecution
9 suggests that's relevant to that element.
10 So we have focused on the elements. We have focused, we suggest,
11 very, very summarily on the personal particulars of these witnesses who
12 come before you and very summarily on the very real and lasting effects of
13 what happened to them in the camp and their forced deportation.
14 In addition to that, Your Honours, we suggest that in this
15 session, if you review the evidence, you will see that we have also
16 focused on their knowledge of these accused: How they knew them, how they
17 could identify them, what it was they relied on to say that these accused
18 held various positions in the camp. And we suggest again that these are
19 very important points to be covered. And we have focused on specific
20 incidents, either involving the witness or involving other people in the
22 And if we look at our estimates of testimony for this session and
23 the testimony, the length of time that people have testified, we suggest
24 that on several instances we have finished with a witness well before our
25 estimate. With some other witnesses, we have gone somewhat beyond it, but
1 that has been, we suggest, very relevant evidence. So we believe that
2 this decision on judicial notice has allowed the Prosecution to focus very
3 much on the substantive offences and the real core of the case, and we
4 believe we are successfully doing that and a review of the transcript will
5 indicate that.
6 In regard to witnesses who testify about the same incident where
7 there is a question of identification, which there certainly is for many
8 of these accused, and in particular for accused Zigic, one or two
9 witnesses may not be enough, especially if those witnesses did not know
10 the person very well before. We suggest when you look at witnesses who
11 are testifying about the same incidents, you will find that either each
12 one of them is presenting a part of that incident because they didn't see
13 the entire incident, or they are testifying because it is about an accused
14 about whom identification may be a question. So we are attempting to
15 focus what we are doing.
16 As I indicated to Your Honours, we will be engaging in a
17 comprehensive review of where we are, what we need to do to finish, and
18 who we need to call to do that. Based on that, we will be refining our
20 We, as Your Honours, share the feeling that we need to expedite
21 matters but not at the expense of failing to prove our case and not at the
22 expense of putting before Your Honours a true picture of what happened to
23 thousands of people who went through that camp, because ultimately, Your
24 Honours, when, look at Omarska, the Prosecution's estimates will show that
25 several thousand people went through that camp. Several thousand people,
1 at a minimum, were beaten savagely; hundreds of people were killed or
2 tortured. We are calling some 60 some or 70 witnesses to talk about all
3 of that that occurred over a several-month period.
4 So we will try to focus the testimony of these witnesses, but we
5 suggest that we can never put speed over justice, and so we will try to
6 balance that. And we know Your Honours want that, and we are very
7 sensitive to Your Honours' requirements and to what the Tribunal needs,
8 and we assure you we will be doing our utmost to strike the correct
9 balance. Thank you, Your Honour.
10 JUDGE RODRIGUES: [Interpretation] I now invite the Defence to
11 state their views on the same.
12 Mr. Krstan Simic has the floor.
13 MR. K. SIMIC: [Interpretation] At all events, the Defence counsel
14 would like to speed up the process, but we do not want to meddle into the
15 strategy of the Prosecution. It is up to them to select their own
16 strategy with a view to their own goals, but we do support all efforts to
17 bring about a speedy trial.
18 Let me add that I am speaking on behalf of all the Defence teams.
19 JUDGE RODRIGUES: [Interpretation] Very well. Thank you very
20 much. I see that all the others agree; signs of agreement.
21 Yes, Madam Hollis, we agree to change the terms of your
22 declaration somewhat. Of course speed -- but justice must come before
23 speed, but I also feel, and I have spoken about specific circumstances
24 when one should pay consideration to the victims; of course we should.
25 But instead of calling all the thousands of victims, we should have
1 witnesses here and perhaps find another manner of expressing the victim's
2 plight. Of course, there is always the amicus curiae possibility and the
3 organisation that helps victims, the Victim and Witnesses Unit. So
4 perhaps we could try and do this and represent the victims here in a
5 different way. And when I say "victims," I am talking about the victims
6 in all the sectors. They are Serb victims, Croat victims, Bosniak
7 victims. They are all victims of one conflict, and many people have
9 So, yes, I do think we should give the floor to the victims. But
10 we must always realise that this is a process of justice, and we should
11 programme our witnesses because, as you know, there are other cases to
12 try. So we do agree, yes, justice over speed. We agree there, and as you
13 know, it is very difficult to have the same elements at the same time.
14 Speed and justice at the same time is a very difficult thing to achieve.
15 But anyway, we do agree, and we're always ready to discuss, and
16 the moment has come to evaluate our work, to size up how far we have
18 Perhaps Madam Hollis, and perhaps the members of the Defence
19 counsel -- you may be seated, please sit down. I do apologise,
20 Ms. Hollis, but we can improve matters.
21 This brings me to my third item on the agenda, the
22 examination-in-chief and the cross-examination of witnesses. I should
23 like to tell you that it is not my intention to give you any lessons on
24 the subject. I have told you that once before, and if ever I do give
25 lessons, I'll ask -- I'll charge -- I won't charge, of course.
1 So if it is possible, I should like to accelerate the debates.
2 We have discussed the question of reducing the number of
3 witnesses. Now let us look and talk about something different.
4 I think that the Prosecution, and I'm speaking for the Prosecution
5 now because this is something that we're doing today -- perhaps tomorrow
6 we'll speak about the Defence matters -- the Prosecution could have, in
7 our opinion, on several occasions, asked questions in a different way,
8 that is to say, to save time. A witness must be encouraged perhaps to
9 speak more spontaneously when he describes his arrival at the Omarska
10 camp, and above all, we should proceed more rapidly to the heart of the
11 matter, to the succis [sic] of the testimony, that is to say, the links
12 between the facts and the accused and how they are involved.
13 Let me give you two or three suggestions along those lines, which
14 are always open to discussion, of course.
15 The way to do this would be to select the necessary information
16 and to have sufficient information, and this is a difficult exercise; only
17 what is necessary and substantial. This is very difficult to do, of
18 course, but perhaps it would be a good criterion for organising the
19 testimony of a witness. What do I want to achieve by that testimony? I
20 want that and only that.
21 The other side is to adopt a methodology of examination and
22 cross-examination. And perhaps I'm going to develop these two points a
23 little further. I, of course, welcome the comments of my colleagues, the
24 Judges, but these are the ideas of the Presiding Judge. Of course, my
25 colleagues may feel free to join in or not as they desire.
1 One point that I think we should bear in mind is the object of
2 accords and agreement and judicial notice. On the other hand, it is to go
3 to the essential point, to the core of the matter; that is to say, what is
4 necessary and what is sufficient.
5 Let me give you an example. We have been spending time in this
6 room, and we had the discussion in this room of knowing whether in --
7 there were 20 or 40 bodies in a particular pile. Now, we lost a lot of
8 time debating this matter. We had one objection, then we had to make a
9 ruling with respect to that objection. Why? Because with all due
10 respect, and I do emphasise this, with all due respect to everybody, to
11 the victims and to the dead people as well, for the case in hand and for
12 all the elements of the offence, it is not important to know whether there
13 was 20 or 40 bodies. We are all jurists. We are all legal experts.
14 I'm giving you an example. Go to the heart of the matter. Focus
15 on the heart of the matter. Why lose time with things that are not
16 necessary, which are not important?
17 There then is the example that I had to give you in order to try
18 and show you how to go to the heart of the matter.
19 Another example and another point that I would like to take up is
20 to search out information by asking questions. Seek out information
21 through questions. They should be clear, specific, and concise. I refer
22 to this as the rule of the three Cs very often.
23 Before telling you what I want with this, let me tell you that it
24 is a difficult exercise to follow and apply, but one must have an
25 objective. One must have a criterion. When I say clear, concrete, and
1 concise, the rule of the three Cs, I usually say that we should attack
2 questions in the most direct possible manner.
3 I gave you -- how shall I put this? In the course of our
4 deliberations here, in the course of the case, I have frequently given you
5 indications myself. Perhaps I myself have not followed them, because as I
6 say, it is an exercise that we all aspire to, but questions must be clear,
7 concrete, and concise, and in order to do so, this needs to be clearly
8 embedded in our consciousness, and we must have the distinction between
9 information and opinion. We must make this clear distinction.
10 You know, in our attitude, in our conduct, in our behaviour, there
11 are always at least three aspects: The informative aspect, the opinion
12 aspect, and the content aspect. Information normally touches upon
13 reality. Opinion normally touches upon the position that I have and all
14 my values, criteria, and everything else to evaluate matters and to face a
15 reality. I myself in face of a reality. I know that it is very difficult
16 to make this distinction, and I think that the only objective thing that
17 exists is, in fact, subjectivity.
18 So without wishing to enter into the realms of philosophy, I
19 should just like to tell you that there are very small things that could
20 help us make this distinction. When you see from the point of view of
21 grammar are substantive, then you have the information. You are the one
22 with the information. If you have an adjective, then that -- there you
23 have an opinion. Or, in other words, if you focus on a question and you
24 ask the question with an adjective, you are running the danger of
25 expressing an opinion rather than posing a question. You are not seeking
1 out information, therefore.
2 This can appear very complicated and very difficult, but I think
3 if we all try, we shall arrive at our goal. That is to say, if in the
4 examination-in-chief and in the cross-examination as well, if we ask
5 questions which are clear, concrete, and concise, that is to say, if we
6 only search to seek out information, then I think we shall be able to save
8 And another thing, the way in which we cross-examine and examine.
9 I think that we must take advantage of the fresh memory of the witness,
10 that is to say, the witness has described a whole situation here, guided
11 by one of the parties, the Prosecutor or the other side, and he has been
12 able to refresh his memory.
13 In my opinion, in order to ask questions in the cross-examination,
14 it is not necessary to repeat everything that the witness has said and
15 said, "You said this. You said that. You said this other thing. And do
16 you," and then you get to the question. Why not go directly to the
17 question and ask "Est-ce-que?" "Do you?" or whatever the question is.
18 Now, if the witness has any difficulty in finding his way, well then
19 there's no problem there, you can put the question a different way. You
20 said such-and-such a thing and then go on to asking your question.
21 But if we have the opportunity of beginning a question with
22 "Est-ce-que," whether, and if once or twice we have to restate the
23 question, we have -- this is one -- nine times out of ten we will be able
24 to save time by asking a direct question. So this will cut the time
25 necessary by half. Perhaps you will say I am a tailorist, so you have --
1 or ultimist's theories or tailor's theories -- and you have discussed a
2 mechanistic work organisation methods. I will answer, no. I have a goal
3 in mind because I know that there are a hundred people waiting. I know
4 that there are a lot of humanitarian organisations who need money, and we
5 are using the International Community's money here. Therefore, it is our
6 duty to make the best use of our time as possible and to use those
7 resources given to us by the International Community to the best of our
9 So if my intellectual capacity and my technique allows me to speed
10 up my work, because we're talking about money here, then it is my duty to
11 do so, I think.
12 There then we have a series of ideas. I have given you food for
13 thought either to cut the number of witnesses because we have agreement on
14 that point, or we're going to use a different, perhaps more effective
15 method of arriving at the heart of the matter. And let me repeat, and I'm
16 in full agreement there, that justice always comes before speed, but
17 perhaps we can even finish the trial before the date set. And if we all
18 share these preoccupations and give them thought, I don't think there will
19 be any problems. If we sympathise and proceed in that manner, we will
20 arrive at our goal more speedily without jeopardising quality. Our work
21 will be clearer because we shall go to the heart of the matter, attack the
23 There then is some food for thought, some suggestions, some ideas
24 that I wanted to put to you, and I invite comment from the parties.
25 Madam Hollis, do you have any?
1 MS. HOLLIS: Thank you, Your Honour. Your Honour, we certainly
2 appreciate your suggestions and we'll certainly give that great thought.
3 Really just a few comments.
4 Number one, we have attempted and perhaps not as successfully all
5 the time as we should have, to tailor our questions to fit the elements of
6 the offences which we must prove beyond a reasonable doubt. That is the
7 framework within which we ask each question. In addition to those, of
8 course, some questions about the witnesses so you can know who it is who
9 is talking to you, and victim impact which has to be put on now because we
10 don't have a separate sentencing phase. So we are attempting to put that
11 in a relevant framework.
12 In terms of perhaps a -- more of an open sort of questioning with
13 the witnesses, we would suggest to Your Honours the following: Many of
14 these witnesses were held for months in one or more camps. They have seen
15 things every minute of every day. In order to try to focus them on what
16 is particularly relevant for this case, we believe a more directive
17 approach is necessary. Everything that they saw has some relevance to
18 what happened in the camps, but we have to be selective. So we have tried
19 to be directive, to try to focus their memories to the things most
20 relevant to us, and that is why we have not employed such an open-ended
21 questioning. It's not a person who saw one murder on one day; it's people
22 who saw many things over weeks.
23 Finally, Your Honours, I said we will take into account everything
24 that you have said, and we will put that into our comprehensive assessment
25 that we are doing following this session. I have to note for the record,
1 I don't believe the Prosecution agreed that we would shorten our witness
2 list. What we said is we will review it. I don't want to say that I've
3 committed myself to something that I haven't committed myself to, but we
4 will review that list, as I said. Thank you, Your Honour.
5 JUDGE RODRIGUES: [Interpretation] Madam Hollis, I do beg your
6 pardon for entering into a discussion, but I would like to clarify a
7 point. Yes, I think -- I know that there is practice, a formation, that
8 people are used to working according to a certain methodology, but I do
9 think that it is possible to arrive at a solution of compromise, to take
10 the objects of information, to follow the witness.
11 Let me give you an example which occurred in this courtroom, and
12 it will help us to understand things better, and it will -- I don't want
13 to quote any names. For example, what happened the next day? The next
14 day, a truck arrived. Where did the truck stop? The truck stopped in
15 front of room number 3. How was the truck parked? It was parked with the
16 back part of it turned towards, et cetera, et cetera.
17 Now, if we are conscious of time, the way to ask this is: What
18 happened the following day? And the witness would spontaneously -- a
19 truck arrived and it stopped in front of room 3, so on and so forth. So
20 as soon as we put question and answer in that relationship, we double the
21 time for this small piece of information.
22 You see what I want to say? I'm not saying that the witness
23 should sit down here and that you should say, "Tell me what you know about
24 that," and then that the witness loses himself in describing what
25 happened, but just portions of information, because each time we ask a
1 question and we get the answer, we double the time. So if we calculate
2 the time at the end of the case, this could -- this little piece, which
3 might have taken up a minute of our time, if we multiply all this, then it
4 comes to a rather substantial figure.
5 Now, I don't want to exaggerate. I just quoted an example in
6 order to show you what kind of thoughts are going round my head and the
7 kind of suggestions that I had to make. So you can ask the witness: What
8 happened in this incident? And then he'll go on to tell you. But then
9 you say, but I would like to know something specifically. And this will
10 give you all the information you need, and you will be able to proceed
11 quicker. And that's what I call necessary and sufficient information.
12 MS. HOLLIS: And I appreciate that, Your Honour. And Your Honours
13 will understand that we have worked with these witnesses. And sometimes
14 people communicate more directly or less directly, and where our
15 assessment is that a person communicates more directly, we attempt to ask
16 those kinds of questions. Where perhaps we would meander to other places
17 and get lost, we try to be more direct. But we take your point, Your
18 Honour, and we certainly have been attempting to do that, and we'll
19 redouble our efforts to do that, Your Honour.
20 JUDGE WALD: Judge Rodrigues has very graciously given you his
21 thoughts. I have some very -- two just very brief thoughts on it which
22 are, I think, down much more to the specific level. They might be helpful
23 to you for the next 80 hours. I have that roughly calculated as to what's
24 left. It --
25 MS. HOLLIS: We think it's 82, Your Honour, but --
1 JUDGE WALD: All right, I won't push that one. It seems to me
2 that over the course of what we've heard so far, and even the Defence
3 witnesses that we heard in the very beginning, that there is an agreement
4 -- or an agreement, let's say, I haven't seen any contradictory evidence
5 about the terribleness of the conditions in Omarska, the fact that there
6 was abuse of prisoners, there were beatings, there were killings, the food
7 was terrible, the water -- well, there may be a little dispute, but not
8 much on that. In other words, that we had a bad scene, as it were, there.
9 I recall in reading the Prosecution's opening brief and, I think,
10 the opening statement, that you had, I won't say two theories, but let's
11 say they may overlap at a certain point; but as I understood it, one
12 theory was that this was a kind of enterprise, I would say almost a
13 criminal enterprise, in which people who participated in any meaningful
14 way thereby became liable under the existing international law. I think
15 that a lot of your evidence so far, I'm sure, has gone to try and build up
16 on that particular theory. Other theories and other counts are more
17 specific in attempting to place a particular defendant at a particular
18 incident that he may have seen or participated in, et cetera.
19 As I say, I think those two overlap to some degree but not always
20 entirely. And I get to my main point, and that is that I am most
21 interested now in the remainder of the trial, and I can speak for myself
22 only, in evidence that will -- that you think will sustain one or both of
23 those theories. In other words, show the terribleness of the enterprise
24 so that anybody who had a significant role is implicated under existing
25 international law or that shows specific responsibility on the part of the
1 particular defendants, because I think the establishment of the scene, as
2 it were, has been either conceded or -- I won't say proven because nothing
3 is proven until the end, but let's say you put a substantial amount of
4 evidence in there, and it would be helpful to me if most of your evidence
5 was focused on one of those two points. Thank you.
6 JUDGE RIAD: Ms. Hollis, I fully appreciate your way of
7 examining. I know that it's studied; it's very well studied. I won't go
8 into specifics. I will just comment on your theory of justice over
9 speed. Of course, we're not speaking here of summary justice, but I will
10 just also remind you of something, which is, the element of time is part
11 of justice. You say justice delayed is justice denied, so the element of
12 time in itself is part of justice. The fact that we have no jury is, in
13 fact, already an element to economise time. You can rely on conveying the
14 message immediately to the Judges, and of course, you are doing that,
15 too. Thank you.
16 MS. HOLLIS: Thank you very much, Your Honours, for your
17 comments. We do appreciate them. We will fully consider them. I never
18 meant to imply that speed wasn't important, it's just that you can't
19 insist on speed to the detriment of justice. But obviously they go
20 hand-in-hand, and we are aware of that, and we will attempt to act
21 accordingly, Your Honours.
22 JUDGE RODRIGUES: [Interpretation] Thank you very much, Ms. Hollis.
23 On the Defence side, regarding these matters related to the
24 examination and cross-examination of witnesses, do you have any remarks or
25 suggestions to make?
1 MR. K. SIMIC: [Interpretation] Thank you, Your Honours. I am
2 speaking on my own behalf only. Again, I have no intention of interfering
3 in the strategy of the Prosecution, but bearing in mind your suggestions,
4 we will do our best to make our examination-in-chief as efficient as
5 possible. To what extent we will exceed, that will depend on the
6 witnesses and a number of other circumstances. Thank you.
7 JUDGE RODRIGUES: [Interpretation] I think I must add that
8 frequently I have the impulse to say to you, you can ask all questions if
9 they are relevant and well put. Thank you very much, Mr. Krstan Simic.
10 Mr. Nikolic.
11 MR. NIKOLIC: [Interpretation] Your Honour, I mentioned a moment
12 ago that until today, we have heard 21 witnesses. We cross-examined four
13 and very briefly. I hope and believe that our cross-examination has not
14 contributed to this problem of time consumption. In any event, we
15 appreciate your suggestions and we'll put them to good use as of tomorrow.
16 Thank you.
17 JUDGE RODRIGUES: [Interpretation] Thank you very much,
18 Mr. Nikolic.
19 Mr. Fila.
20 MR. FILA: [Interpretation] Mr. President, it is in this period of
21 our system to put questions in a certain way starting with "Did you," but
22 here we learned a different way of posing questions, but it will be my
23 pleasure to go back to the system that I have practised for 37 years.
24 JUDGE RODRIGUES: [Interpretation] So from your point of view, one
25 has to forget what one has learnt.
1 Mr. Tosic.
2 MR. TOSIC: [Interpretation] We have no comments. However, as
3 regards your suggestions, we will fully honour them and apply them in the
4 examination of witnesses and, we hope, save time in doing so.
5 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Tosic.
6 Mr. Jovan Simic.
7 MR. J. SIMIC: [Interpretation] Your Honour, I think that we have
8 done our best so far to save time. We have cross-examined witnesses very
9 briefly, and we will continue to do our best to save as much time in the
11 JUDGE RODRIGUES: [Interpretation] Very well, thank you.
12 So I think we have a series of suggestions here. We will all try
13 to put them into practice, including myself.
14 So that brings us to the fourth agenda item, "Other Matters," and
15 we have already raised the question of depositions by Presiding Officers.
16 This is a matter that is of interest to Madam Hollis, and there is another
17 aspect, if not the same, that was mentioned by Mr. Fila.
18 I think that we envisaged to apply Rule 71, just to remind you.
19 In the first stage, as you remember, there was the Prosecution and the
20 Defence together, even before the beginning of the trial. As soon as this
21 trial came before this Chamber, we thought it would be better to organise
22 things a little, and our prime concern was to commence the trial and then
23 to structure depositions by the Prosecution in the Prosecution stage and
24 depositions by Presiding Officers of Defence witnesses in the Defence
25 stage of the case. We are now in the Prosecution stage of the case. I
1 have already told you that for the 6th November, we will discuss general
2 matters regarding the preparations of the Defence, and then we will also
3 address this matter.
4 Now we have to discuss the depositions by Presiding Officers of
5 Prosecution witnesses, so I should like to give the floor to Ms. Hollis to
6 hear her concerns and perhaps ours after that.
7 MS. HOLLIS: Thank you, Your Honour. At an earlier session, I
8 believe that we noted that the deposition witnesses we had identified were
9 the witnesses who would basically speak to these jurisdictional elements.
10 Because of the decision of the Trial Chamber, at this time the Prosecution
11 has no witness that it will seek to offer by way of deposition.
12 JUDGE RODRIGUES: [Interpretation] Very well, then. That's fine.
13 That was our impression in the beginning, that the majority of witnesses
14 listed by the Prosecution for deposition statements would be testifying on
15 matters that were the subject of agreement. So the fact that they have
16 decided they don't need those witnesses, that is very welcome.
17 Mr. Fila now.
18 MR. FILA: [Interpretation] Mr. President, as you know, most of our
19 witnesses wish to testify in Banja Luka. It is not a matter of our
20 choice. It is not a choice made by Defence counsel but by those
21 witnesses. Unfortunately, there is still a lack of trust. Something else
22 that is very important is that these witnesses are mostly guards who were
23 there, who were in those camps.
24 I have noticed that we have a lot of -- quite a long period of
25 recess, from the 6th of October to the 4th of December, and in that period
1 there is absolutely no problem in us having those deposition statements in
2 Banja Luka, which means that the Defence can simultaneously prepare for
3 its case and take these deposition statements. That would be my
4 suggestion. Thank you.
5 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Fila. Thank you very
6 much for your discussion. As you know, even the previous Chamber, the
7 third Chamber, asked the legal officer of the Chamber to organise this
8 matter. Perhaps we will continue to do that. But perhaps we should bear
9 in mind something else.
10 At the beginning of this pre-Defence stage, we can focus on this
11 matter to speed things up. This is something that is linked to this. As
12 you know, we already have the opinion of the security, who have said yes
13 to depositions by Presiding Officers for a week; fine, no problem; and we
14 have to bear these things in mind for the organisation. You may be
15 seated, Mr. Fila.
16 But still I wish to take advantage of the opportunity to convey to
17 you some other information in response to a Prosecutor's motion for a
18 visit on site. The matter is still not closed, but what we have now is
19 the opinion of the security that it is not possible for the Chamber to
20 move there, to go there. But the question is still open to some extent in
21 view of the latest developments in terms of the cooperation between
22 Republika Srpska and the Tribunal. So I think there may be a
23 possibility. But I'm saying that the position of the security staff is
24 still no, but we still don't know what may happen.
25 But I wish also to tell you -- this is my opinion. I have not
1 discussed this matter with my colleagues. It is my personal opinion that
2 as we proceed in the affair, in the case, it may not be necessary to go
3 there, because if we're coming to the end of the case, it may not be
4 necessary. It was important, from the standpoint of the organisation of
5 work, to go at the beginning. One could have avoided a series of maps,
6 photographs, et cetera. It was important. But at this stage of the
7 proceedings, I'm not sure that even if the conditions were acceptable to
8 go, that it would really be necessary to go, because usefulness, as you
9 know, is always a good criterion.
10 So we'll take into consideration these concerns of Mr. Fila.
11 Mr. Olivier Fourmy will take note of that, and in contact with the
12 Chamber, we will try and give you certain priorities for the preparations
13 of the Defence for deposition statements.
14 Mr. Fila.
15 MR. FILA: [Interpretation] Mr. President, what I am asking is
16 whether it is possible for the Defence in this recess time or, rather,
17 during the break, when the Chamber will have other business to attend to,
18 for us to organise these depositions in Banja Luka. The Defence is more
19 or less together. It is only the legal position of Zigic that is
20 distinct. A guard who testifies will not testify once for Krstan, once
21 for Nikolic, once for me, but once for all of us.
22 MR. NIKOLIC: [Interpretation] I am not the accused.
23 MR. FILA: [Interpretation] Neither am I. And we'll get through
24 this with a short examination-in-chief, really very short. That is the
25 question that concerns me. I am asking whether it is possible for the
1 Defence to organise this in this period, with, of course, the assistance
2 of Mr. Fourmy.
3 JUDGE RODRIGUES: [Interpretation] You certainly wish to take
4 advantage of the summer, Mr. Fila. We will take note of your -- of what
5 you have said. I don't think it is a good idea to mix these two stages of
6 the case, the Prosecution with the Defence case. I prefer us to make this
7 distinction. When we have the Defence case, then we present the evidence
8 of the Defence.
9 And to give a compliment to Mr. Fila, I said that he wished to
10 take the advantage of the summer because, of course, after that comes the
11 winter, and we realise that. We will take this into consideration. I
12 tell you quite sincerely and honestly that my position would be not to mix
13 the two stages together; to keep them distinct.
14 So are there any other questions on -- by the parties? I'm
15 sorry. Ms. Hollis. Just to maintain a certain order. Ms. Hollis. Then
16 there's always this question of good behaviour when ladies always come
18 MS. HOLLIS: That's very gracious, Your Honour. Thank you.
19 Your Honour, we have three matters, one of them in public session
20 and two for private. They're very brief matters, but we need to raise
22 The first matter for public session, Your Honour, is the
23 following, and it has to do with perhaps refining the procedure that we
24 are using for impeaching a witness a prior statement. We would note,
25 first of all, there are two different things, Your Honour: There is a
1 prior statement -- and by that, the Prosecution means a statement has been
2 signed or otherwise adopted -- and there are the proffers which the
3 Prosecution is providing where we do not have a statement. The proffers
4 are proffers of expected testimony. The witness hasn't signed them. The
5 witness hasn't adopted them.
6 With that distinction in mind, Your Honour, we would suggest that
7 if it is to be impeachment by a prior statement, that the party using that
8 prior statement, first of all, identify particularly what statement it is;
9 and also, when they are referring to portions of that statement, that they
10 give us the page number and the paragraph, both in English and in B/C/S,
11 if possible, because the opposing party may want to object to what they're
12 reading, and it's difficult to do that if we don't know exactly where they
13 are in the statement.
14 We may also want to add other parts of the statement, but again,
15 if we don't know exactly what they're reading from, it takes us time to
16 find. So if the party using the statement could be more particular in its
18 In regard to use of these statements, Your Honour, we believe
19 there are two different things at work. One is: Did the incident about
20 which the witness gave the statement actually occur? The second one is:
21 Did the witness say exactly that in the statement?
22 If the party using the statement is trying to attack the second
23 part, "Did the witness actually say that?" we suggest that it would be
24 more fair to the witness to provide a copy of that statement to the
25 witness in their language, because we're asking them to remember with
1 particularity the words they used in a statement perhaps six years ago.
2 So we suggest, number one, they identify in particular where
3 they're referring in the statement; and secondly, if they're going to
4 quote specific language and ask the witness if that's what they said, we
5 suggest the witness should be given the statement. And that is the matter
6 that we have for public session, Your Honour.
7 JUDGE RODRIGUES: [Interpretation] Perhaps we can go back into
8 private session, but for the moment, let's deal with all the matters we
9 can in public session. Perhaps the Defence can respond to the suggestion
10 made by Ms. Hollis.
11 MR. K. SIMIC: [Interpretation] Your Honour, I'm speaking in my own
12 name. I fully support the positions presented by Ms. Hollis, and in the
13 future we will do our best to do that. However, the Prosecution
14 yesterday, that is, Mr. Piacente, used this proffer of proof as an
15 authentic document, and we feel that when no prior signed statements were
16 given to us, that these notes of a conversation that took place four or
17 five years ago should not be the grounds for any examination. So we would
18 like the Prosecution to disclose the statement they have.
19 And I quite agree that the witness should be shown his statement
20 and, for the sake of efficiency and the transcript, that the pages should
21 be quoted in the B/C/S language and in English. Thank you.
22 JUDGE RODRIGUES: [Interpretation] Yes. We have always had that
23 problem, that when a party refers to a statement, that the other party
24 should have a statement to know. If it's notes, then the Defence can have
25 the notes of the Prosecutor or they cannot use them. If they do use them,
1 they have to disclose them. We have taken note of that.
2 Yes. Mr. Nikolic, please.
3 MR. NIKOLIC: [Interpretation] Your Honour, to follow on to what my
4 colleague Mr. Simic said, last time we had this situation, but as it
5 referred to Keraterm, we did not respond. And Mr. Piacente, when
6 examining, he said, "In your statement of the 18th of April, 1994, you
7 said ..." so-and-so. That statement was never disclosed to any Defence
8 team regarding that witness. All we had was the Prosecutor's proffer as
9 to what the witness would testify to, without any date being indicated
10 whether the proffer was compiled.
11 So allow me now to comment on what Ms. Hollis said. We absolutely
12 agree. In the cross-examination, when using a statement, we will specify
13 which statement, of what date, and to whom it was given.
14 JUDGE RODRIGUES: [Interpretation] Very well. Thank you very much,
15 Mr. Nikolic.
16 Mr. Fila, do you have anything to add?
17 MR. FILA: [Interpretation] Mr. President, I have a slightly
18 different opinion.
19 To speed things up, only if the witness says that he doesn't
20 remember that statement, which I read to him, do we need to show him the
21 statement in Serbian and English for him to see. If he remembers and
22 comments on it, it is a pure waste of time to give him the whole statement
23 and then to return the statement, and all that. That is the slight
24 difference that I have regarding this matter.
25 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Fila, but your
1 suggestion presumes that you have to ask the witness always whether he
2 remembers. And if he says yes, you may continue; if not, you show him the
4 MR. FILA: [Interpretation] Yes, of course.
5 JUDGE RODRIGUES: [Interpretation] Do you agree with this slight
6 nuance? Ask the witness: Do you remember; yes or no? If he says yes,
7 then you can go on with the question; if no, then he needs to be shown the
8 statement. What do you think?
9 MS. HOLLIS: That's right, Your Honour. If the witness has read
10 it, the exact language, and the witness says he remembers saying exactly
11 that, then there's no reason to show it to him. But people are being
12 told, "You said this," and we suggest that sometimes the witness is simply
13 taking the person's word for it. But if they specifically say they
14 remember, that would be a better process.
15 And we will tell you, Your Honour, that the reason I used the word
16 "party" when I made the statement is I'm talking about the Prosecution
17 following that procedure as well. And there are times when members of the
18 Prosecution do speak with less exactitude than they should and they say
19 "statement" when in fact we do not have a signed document. We have
20 provided all of the signed statements to the Defence, and where we do not
21 have signed statements, we have provided proffers.
22 JUDGE RODRIGUES: [Interpretation] Thank you. Mr. Tosic, have you
23 anything to add regarding this matter?
24 MR. TOSIC: [Interpretation] My colleague Mr. Stojanovic will
25 explain our position.
1 MR. STOJANOVIC: [Interpretation] Your Honour, very briefly. I
2 think I agree with the presentation of one aspect of this matter as
3 expounded by Mr. Fila, and I support this, but I think that this group of
4 questions raised by Ms. Hollis is finally up to the Judges to assess the
5 weight and probative value of certain exhibits. I don't think we should
6 attach too much significance to formalities, on condition that there is no
7 infringement of our Rules. So I would leave it up to the Court to
8 evaluate the probative value of the evidence. And regardless of any prior
9 statements and their existence or not, I don't think that it is
10 impermissible to ask the witness whether you said such-and-such a thing
11 about a particular event and now you're saying something else, regardless
12 of any formalities or written statements. So I think that most of these
13 matters come under the framework of the judgement and value that will be
14 attached to them by the Court and the Judges, of course.
15 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Stojanovic.
16 Thank you very much.
17 Mr. Jovan Simic, have you anything to add?
18 MR. J. SIMIC: [Interpretation] I have nothing, Your Honour, except
19 I would say that I agree with colleague Fila. And I would draw attention
20 to one fact, and that is: To this day we still haven't received witness
21 statements in unredacted form. The Defence is still not raising
22 objections, but I think that it is time for us to receive those unredacted
24 JUDGE RODRIGUES: [Interpretation] Ms. Hollis, I think the
25 positions are slightly changed. Do you have anything to say in your
2 MS. HOLLIS: Your Honour, not so much in my defence as to
3 explain. We have been giving the Defence unredacted statements. We have
4 been redacting one thing, and that is the current whereabouts of the
5 witnesses, but we have been providing with them unredacted statements
6 prior to the testimony of each of these witnesses. So perhaps if
7 Mr. Simic could show me what it is he means, I could find out what the
8 problem is. But we have been -- I will tell the Court we have been
9 redacting current whereabouts of the witnesses.
10 JUDGE RODRIGUES: [Interpretation] Perhaps Mr. Jovan Simic and
11 Ms. Hollis can discuss this matter amongst themselves, because there was a
12 question that was raised here, and that is that the Prosecutor has said
13 that the majority of documents sent to the Defence, the Defence did not
14 notify them of having received them. So are we still dealing with the
15 same problem? The Defence is complaining that they haven't received the
16 document; the Prosecution says they've sent them.
17 So I still seem to remember at a prior Status Conference the
18 Prosecutor raised this question, that the Defence did receive these
19 documents but did not confirm and notify the Prosecution of having
20 received them.
21 Ms. Hollis.
22 MS. HOLLIS: Your Honour, let me update you on that situation and
23 say, first of all, that Mr. Jovan Simic has always been excellent in
24 returning receipts to us from the very first. He has done that in a very
25 timely fashion virtually all the time.
1 We have asked the other counsel to do that, and all of the other
2 counsel, with one exception, have responded to that and are now providing
3 us with receipts in a timely fashion. So we believe that that problem has
4 been overcome. So whatever the problem is that Mr. Jovan Simic has is
5 something other than that, and we would be most happy to speak with him to
6 find out what that is. But certainly he has never been remiss in
7 providing us with receipts.
8 JUDGE RODRIGUES: [Interpretation] I think we have come to the
9 end. There are no other matters to address, I think.
10 Yes, Mr. Nikolic.
11 MR. NIKOLIC: [Interpretation] Very briefly, Your Honour.
12 Mr. President, a moment ago you anticipated my question that I was going
13 to ask when you said that priority should be given to the ladies.
14 Mr. O'Sullivan and I have a small problem. We have with us
15 Mrs. Nikolic as a member of the team. She's a fighter, and she finds it
16 very difficult to be inactive in the courtroom; on the other hand, there
17 is Ms. Hollis, who is fantastic in her examination of witnesses; and then
18 there was Ms. Sutherland at one point too. After this introduction, my
19 question is: With your permission, and when the Defence team so decides,
20 can Mrs. Nikolic cross-examine a witness?
21 JUDGE RODRIGUES: [Interpretation] As far as I'm concerned, it
22 would give me a great deal of pleasure. I only have to know whether
23 Mrs. Nikolic is qualified and authorised by the Registry to do so and
24 whether the Defence counsel envisages that as part of its strategy.
25 MR. NIKOLIC: [Interpretation] Mrs. Nikolic has been in the case
1 from the very first day. She's an attorney by profession. She's more a
2 Prosecutor by her employment. She's a member of the bar, but currently
3 she has the status of legal counsellor.
4 JUDGE RODRIGUES: [Interpretation] I have already said that it
5 would give us pleasure to have Mrs. Nikolic participating actively, but I
6 have to check with the Registrar whether all the requirements have been
7 met. I cannot engage myself on behalf of the Chamber without hearing the
8 opinion of the Registry, so I will give you a reply at the next Status
10 Maybe this is a matter that Ms. Hollis should address, as head of
11 the team, to apply a certain philosophy of work. When there are more
12 people in the team, and I see them participating in the examination, and
13 the Chamber welcomes this and wishes to support people who are beginning a
14 new job, and we would be equally inclined to encourage this on the side of
15 the Defence. But as I say, we will have to check with the Registry, and
16 this will fully implement the expression "ladies first."
17 Mr. Fila.
18 MR. FILA: [Interpretation] Mr. President, I apologise that I have
19 to react post festum on this, but on the 6th of July, at the request of
20 the Prosecution, you held an ex parte closed session. I received a note
21 about that, so I won't mention what it concerns -- we all know what it
22 was -- because we're in public session. But the Defence would like to
23 lodge a kind of protest. I'm not going to say what's written there.
24 JUDGE RODRIGUES: [Interpretation] In a couple of minutes we're
25 going to go into private session, because there are two matters to address
1 that Ms. Hollis wishes to address in private session. So then you can
2 come back to this matter.
3 We are not going to close the Status Conference; we are just
4 striving to deal, in public session, with all the things that -- all the
5 things that we can and then to go into private session for those matters
6 that we have to deal with in private session.
7 Mr. Simic, the matter you wish to raise?
8 MR. K. SIMIC: [Interpretation] Your Honour, I have two questions.
9 One is of a technical nature again. In the transcript that we had in
10 front of us, it says that the second week of September the trial would
11 begin on the 7th, and I think you said the 5th of September. So I'm
12 afraid that might be an error in the transcript.
13 JUDGE RODRIGUES: [Interpretation] The 5th. It should be the 5th
14 of September.
15 MR. K. SIMIC: [Interpretation] Thank you.
16 JUDGE RODRIGUES: [Interpretation] If there are no other questions
17 for an open session --
18 MR. K. SIMIC: [Interpretation] No. I do have another question.
19 That is why I stood on my feet. This was a purely technical matter.
20 JUDGE RODRIGUES: [Interpretation] I'm sorry.
21 MR. K. SIMIC: [Interpretation] Mr. President, we have already
22 opened this issue at a Status Conference without elaborating it. It has
23 to do with Witnesses AG and AH. The witnesses are listed by the
24 Prosecutor under numbers 42 and 43.
25 The Defence has looked at the statements of these witnesses, and
1 they have statements from them that they would testify in the Defence
2 case. After that, a meeting was arranged with them for them to testify on
3 behalf of the Prosecution. Before that, I informed the Prosecutor that
4 they were Defence witnesses, that they would be available to the Court,
5 and, of course, they would be available for examination by all parties.
6 However, to this day, we have not received the statements of these
7 witnesses from the Prosecutor nor their signed statements that they would
8 appear as witnesses.
9 In the meantime, a decision has come into force prohibiting our
10 contact with those witnesses, and we are now in a position that witnesses
11 who we had planned to appear on our behalf we are unable to contact
12 without being even called to account for acting in breach of a Court
13 ruling, and that is why we are asking for permission to contact these
14 witnesses who made their statements five or six months prior to when the
15 Prosecutor addressed them to testify in the Prosecution case.
16 As to the method applied, we will not comment on that. Maybe we
17 will come to that during the testimony itself. Thank you.
18 JUDGE RODRIGUES: [Interpretation] Ms. Hollis, do you have any
19 response to this?
20 MS. HOLLIS: Your Honour, regarding these two witnesses, these two
21 witnesses had been contacted by the Prosecution before the Defence
22 informed us they were Defence witnesses. When we learned that, we
23 recontacted the witnesses to find out if indeed that was true, and the
24 witnesses said they had not been contacted by the Defence. So apparently
25 there was some miscommunication somewhere.
1 Based on that, Your Honour, we did proceed to contact these
2 witnesses. We did list them as witnesses. Then after the
3 examination-in-chief of accused Kvocka, we went back to the witnesses and
4 then learned that the witnesses did not wish to be Prosecution witnesses,
5 hoped they would be called by the Defence but were still awaiting word
6 from the Defence as to whether they would be called.
7 So that is the current situation with these witnesses, these two
8 witnesses. It appears that it has been a confused situation from the
9 beginning, perhaps because of dynamics that would be very obvious based on
10 their relationship by law with the accused, but that's the background of
11 these two witnesses.
12 Currently they have indicated that they do not wish to come and
13 testify for the Prosecution if they will appear as Defence witnesses. If
14 they do not appear as Defence witnesses, they have indicated they may wish
15 to come and testify. So we would certainly have no objection to the
16 Defence contacting them because it appears the witnesses wish to testify
17 on behalf of the Defence.
18 JUDGE RODRIGUES: [Interpretation] Having heard Ms. Hollis, I think
19 that this is a question that Mr. Krstan Simic and Ms. Hollis can regulate
20 amongst themselves. The Chamber doesn't have anything to do with that
21 unless the witnesses don't appear and the Trial Chamber considers that
22 they are important for justice to call them at the initiative of the Trial
23 Chamber. Otherwise, it's up to you to resolve the issue. So we cannot
24 influence the matter in any way, Mr. Krstan Simic, if you understand.
25 No other questions? We can now go into private session. Let us
1 move into private session. For the purposes of the public gallery, I
2 should like to inform them that we are moving into private session and
3 remain in private session until the end.
4 [Private session]
13 pages 4047-4066 redacted – private session
22 --- Whereupon the Status Conference adjourned
23 at 6.20 p.m.