Tribunal Criminal Tribunal for the Former Yugoslavia

Page 6734

1 Friday, 12 January 2001

2 [Pre-Defence Conference]

3 [Open session]

4 --- Upon commencing at 10.08 a.m.

5 [The accused entered court]

6 JUDGE RODRIGUES: [Interpretation] Please be seated.

7 Good morning, ladies and gentlemen; good morning to the technical

8 booth, the interpreters; good morning to the legal assistants and the

9 registrar.

10 Since we are seeing one another after a long break and we see some

11 new faces on both sides, perhaps we could begin with the appearances.

12 Office of the Prosecutor, please. Mrs. Somers, could you please

13 introduce your team.

14 MS. SOMERS: Good morning, Your Honours. Susan Linda Somers for

15 the Prosecution. Also Mr. Kapila Waidyaratne, Ms. Denise Gustin, and

16 Mr. Daniel Saxon. Thank you.

17 JUDGE RODRIGUES: [Interpretation] Thank you very much.

18 The Defence in the normal order, please.

19 MR. K. SIMIC: [Interpretation] Good morning, Your Honours. The

20 Defence of Mr. Kvocka consists of Krstan Simic and Branko Lukic, as

21 usual.

22 JUDGE RODRIGUES: [Interpretation] Very well. Thank you very

23 much.

24 Mr. Nikolic.

25 MR. NIKOLIC: [Interpretation] Good morning, Your Honours. The

Page 6735

1 Defence for the accused Kos consists of Mrs. Nikolic, Mr. Eugene

2 O'Sullivan, and myself, Zarko Nikolic, again, as usual.

3 MR. FILA: [Interpretation] Good morning, Your Honours. My name is

4 Toma Fila. Together with Mr. Zoran Jovanovic, we represent the accused

5 Mr. Radic. Thank you.

6 JUDGE RODRIGUES: [Interpretation] Thank you.

7 Mr. Stojanovic.

8 MR. STOJANOVIC: [Interpretation] Your Honours, good morning. Our

9 Defence team has been somewhat enlarged. We have with us Mrs. Ljiljana

10 Mitrovic from Belgrade, our legal assistant; Mr. Miodrag Deretic, an

11 attorney from Prijedor; and I am Slobodan Stojanovic, attorney from

12 Belgrade.

13 MR. J. SIMIC: [Interpretation] Good morning, Your Honours. The

14 Defence of Mr. Prcac consists of myself, Mr. Jovan Simic, and my colleague

15 from Belgrade, Mr. Masic.

16 JUDGE RODRIGUES: [Interpretation] Very well. I should like to

17 take advantage of the opportunity to wish everyone in the courtroom and

18 those assisting us -- there seems to be a problem with the headphones. Is

19 it working now? No? Yes? Yes? Can everyone hear me now? Maybe the

20 problem is due to the wrong selection of the channel.

21 Mr. Stojanovic.

22 MR. STOJANOVIC: [Interpretation] We happen to have the same

23 problem as our client. We are not getting the interpretation, I'm

24 afraid.

25 JUDGE RODRIGUES: [Interpretation] Perhaps the solution will be the

Page 6736

1 same in your case too. Is it working now? Can you hear me now? I see

2 you nodding so you do hear me, Mr. Stojanovic. Very well.

3 Anyway, I was saying that I should like to take advantage of this

4 opportunity to greet everyone and to wish everyone a Happy New Year.

5 We are going to now engage in the preparations for today's

6 hearing. As you know, we are holding this Status Conference in order to

7 discuss the pre-trial briefs of the Defence and to prepare for the Defence

8 case. I, therefore, suggest the following agenda:

9 For the Pre-Defence Conference, we will be working on the

10 cross-examination of the accused Kvocka and Radic and the testimony of

11 other accused who wish to testify. I will later explain the reasons. The

12 Chamber would like to address this question separately.

13 After that, we are going to deal with the Defence witnesses and

14 the exhibits that we need to review. We also have several outstanding

15 motions, some of which need to be discussed in private session. So we

16 will begin with those points and later on we will address the motions I

17 have mentioned.

18 The agenda item has to do with the cross-examination of Kvocka and

19 Radic and the examination-in-chief of other accused who wish to testify.

20 Unforeseen circumstances have created room for the Chamber to

21 meet, which means we plan to work next week but the Chamber, which is

22 always concerned with efficiency and the desire to maintain good relations

23 with the parties, would like to suggest to the parties that we do work

24 next week. As you know, we do not have the problem of the presence of

25 witnesses because, if we begin with the cross-examination of Mr. Kvocka

Page 6737

1 and Mr. Radic and the testimony of other accused, then we don't have the

2 problem of witnesses' presence or not.

3 If the first place, therefore, I should like to consult the

4 parties to see whether, yes or no, we could begin -- instead of beginning

5 on the 22nd, whether we could begin on the 15th. It is true that we will

6 have plenty of time afterwards to discuss all these matters - the list of

7 witnesses, the list of exhibits, and so on - but I should like to hear the

8 initial reaction of the parties, that is, the Defence counsel, and see to

9 what extent this suggestion could be acceptable. We're fully aware that

10 we are changing a little bit the work plan, and that's why we're

11 discussing it. If yes, fine; if not, again fine. But in this way we

12 could speed things up a little and gain some time.

13 So I should like to begin with Mr. Krstan Simic to see whether you

14 are in a position to respond.

15 MR. K. SIMIC: [Interpretation] Your Honour, I must say that we are

16 caught by surprise. We had a programme and a plan of our own. On Tuesday

17 I have to deal with some very important problems linked to witnesses, so

18 I'm afraid that we might gain time at this stage and we would be wasting

19 time later on because we have a lot of problems with visas and other

20 requirements linked to witnesses. I think this is a problem. But should

21 the others agree, I'll find a way around it, but for us, in principle, it

22 is not acceptable.

23 JUDGE RODRIGUES: [Interpretation] But the Chamber feels that we

24 need two weeks for the cross-examination of the accused and the testimony

25 of the other accused, at least, so we would have plenty of time to deal

Page 6738

1 with the other matters later on. But let me hear the other Defence

2 counsel first.

3 Mr. Nikolic -- I see Mr. O'Sullivan on his feet.

4 MR. O'SULLIVAN: Thank you, Your Honour. Good morning. On behalf

5 of Kos, we won't make any comments regarding Radic or Kvocka's

6 cross-examination. As far as Mr. Kos is concerned, if he should testify,

7 we submit it should be during his Defence case. And the second point

8 connected to that is that we have not yet determined whether or not he

9 will testify, but if he does, it should be during his Defence case.

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

11 Mr. O'Sullivan.

12 Mr. Fila.

13 MR. FILA: [Interpretation] Mr. President, apart from being

14 surprised, that is not important, but there is another prior problem we

15 have to deal with. Talking to Ms. Somers, it is the Prosecution opinion

16 that the cross-examination of Kvocka, Radic, Prcac, Zigic, or any other

17 one of the others that might want to testify should be done at the end of

18 the whole case. In this way, we would begin with the cross-examination of

19 Kvocka and Radic. We don't know whether the other three would testify,

20 and there would be a lack of continuity. You know that I'm always in a

21 hurry and I'm eager to speed things up, but I don't think that we'll be

22 able to do so in this way.

23 JUDGE RODRIGUES: [Interpretation] Anyway, the Chamber too has been

24 taken by surprise, but we're trying to make the best of our time. But

25 still, I would like to hear all the Defence counsel.

Page 6739

1 Mr. Stojanovic, what are your impressions? What is your

2 reaction?

3 MR. STOJANOVIC: [Interpretation] Your Honour, I think that our

4 Defence team is not prepared for such a change because it would upset

5 seriously the preparations for our case. Thank you.

6 JUDGE RODRIGUES: [Interpretation] Mr. Jovan Simic.

7 Thank you, Mr. Stojanovic.

8 MR. J. SIMIC: [Interpretation] Your Honour, at this point Mr.

9 Prcac's Defence is least affected. We could accept your suggestion,

10 though it would upset our own programme of meetings with some witnesses,

11 so I don't think it is realistic or opportune to make this change. But,

12 of course, we will abide by your ruling, Your Honours.

13 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Jovan

14 Simic.

15 Ms. Susan Somers.

16 MS. SOMERS: Your Honours, under normal circumstances, I would be

17 elated at having the extra time in court. Under these circumstances,

18 however, earlier last week I contacted Mr. Fourmy in order to let the

19 Chamber know that Mr. Saxon and I would not be in The Hague until Tuesday

20 evening, the 16th. And in the event that this particular hearing were to

21 carry over, which is what we thought might happen, we would have

22 respectfully requested the Chamber to have scheduled it so as not to

23 conflict with its own schedule, of course, with Krstic, and then just to

24 know our availability. So in fact we have made arrangements based on

25 having made that representation to Mr. Fourmy and subsequently confirming

Page 6740

1 that we had made plans, accordingly, not to be here. That is the first

2 point. So in fact, that is the case.

3 The second issue is about the order of cross-examination of the

4 two accused who have previously given their direct exam in an unusual

5 order but certainly by agreement. And we had, as Ms. Hollis had mentioned

6 at the last Status Conference, expressed, after Your Honours' inquiry, a

7 preference based on the planning for these accused to be cross-examined at

8 the end of their case. I think that the history of the, as it were,

9 concession or the change in normal order left it -- it appeared to have

10 left it, from what I read in the transcript, as what the Prosecutor wants

11 to do, and we have taken advantage of that language. It would be a change

12 for us. We've planned around that, and assuming that the Court had

13 accepted Ms. Hollis's statement of preference.

14 So indeed it would be difficult on two levels. And if the Court

15 would care at this time for argument on our position about the order of

16 the cross-examination of the two accused, I would be happy to do so, or I

17 shall wait until it's on the agenda. I do apologise for any inconvenience

18 that we might have worked. As I say, normally we would be delighted to

19 have the extra time in court. Just because of the timing. Thank you.

20 JUDGE RODRIGUES: [Interpretation] Very well. So I think we have

21 to go on to an analysis of other matters. And to be realistic, it doesn't

22 seem to be convenient for the majority to make any change in the

23 timetable. But anyway, we have a lot of work to do next week.

24 So I think we should now go on to the other issues, and that is

25 the list of witnesses, or perhaps the Pre-Trial briefs, the list of

Page 6741

1 Defence witnesses, and the list of exhibits. Perhaps we could take the

2 two together to be covered by several speakers. I don't know whether the

3 Defence has had the opportunity to review the response of the Prosecutor,

4 and there is a whole series of questions, some which might be responded to

5 briefly and quickly; others I don't know whether the parties could agree

6 on in a way that the Chamber could accept; and then there are other

7 matters on which decisions will have to be taken. There are certain

8 aspects on which the Chamber should reserve its opinion because the

9 parties cannot reach an agreement or because it is up to the Chamber to

10 decide.

11 So let us embark upon this matter to see where we stand with

12 respect to the list of witnesses, the list of exhibits, and perhaps

13 envisage for next week another Status Conference to review things. But in

14 any event, we'll see how the discussion will develop.

15 Perhaps I should give the floor to each Defence counsel on

16 condition that they are all familiar with the response of the Prosecutor.

17 Then they could react. And after that, perhaps I could give the floor to

18 Ms. Susan Somers to respond to all the responses of the Defence counsel.

19 Would you agree with that procedure? Yes? Fine. Or the other

20 possibility is to give the floor to Ms. Susan Somers, who is going to say,

21 "I need this and that," "My position is such-and-such," and then we could

22 see whether Defence counsel can respond. Perhaps that would be better.

23 Perhaps, Ms. Susan Somers, you should take the floor first to tell

24 us what your reaction is to the briefs of the Defence and what your

25 requests are with respect to the Defence counsel. Ms. Susan Somers.

Page 6742

1 MS. SOMERS: Your Honours, it is my hope that counsel have had an

2 opportunity to have reviewed our response. We tried to provide, I believe

3 by immediate delivery yesterday, in advance of the deadline, the document,

4 so as to be ready for this morning.

5 Some of the issues, Your Honours, concern several specific

6 witnesses for whom pseudonyms have been affixed; others concern generally

7 the extensive use of affidavit; and others concern the discussion about

8 deposition.

9 I would like to inform the Chamber - I believe we did set this

10 forward in our response - that our Office invited the Defence to meet with

11 us and discuss in advance these issues. We thought it would probably save

12 some time in framing or reducing the time and to clarify issues.

13 One particular matter -- actually, no. One general matter is

14 something I wanted to immediately bring to the Court's attention because

15 it will affect, perhaps, timing and that is the notion of deposition as

16 opposed to videolink.

17 The history of the deposition in this case appears to have arisen

18 before this Chamber was seized of the matter because the case essentially

19 sat hovering, waiting for a trial date. It was, I think, a very wise

20 suggestion on the part of both Judge May and Mr. Niemann and counsel to

21 find some, at that time, solution under rather exceptional circumstances.

22 We are clearly well on the way, and I think those circumstances

23 have changed whereby the use of videolink, which affords the Chamber the

24 advantage or the benefit of live testimony and questioning, which, as my

25 viewing of this Chamber has been, is an active part of the practice, as

Page 6743

1 well as the opportunity, certainly, to get a general sense of all other

2 aspects of reliability and credibility.

3 It is certainly the position of the Prosecution that unless there

4 is a real life/death, literally, type issue at this point, or one of such

5 grave health concerns, that if there is to be a remote means of taking

6 testimony, it should be by videolink. It involves a reasonable amount of

7 preparation in advance, and therefore we would have to, amongst ourselves

8 and with the Chamber's guidance, set the order so that we wouldn't have to

9 go back and forth.

10 We have indicated to counsel that we certainly have no objection

11 to holding these matters in Banja Luka, which I believe would be the forum

12 of convenience for many of the witnesses. I wanted immediately to throw

13 that out to the Chamber because if, in fact, that has to be factored in

14 for timing rather than, again, a back and forth, we can try to work it out

15 that we have our parties there and that the technical aspects are set up.

16 Even if depositions were undertaken, there is a technical side to

17 them as well, but this, in our view, is the best all-around way for the

18 Chamber to see and participate in, as it has always done, this type of

19 examination.

20 JUDGE WALD: Can I ask you a question?

21 MS. SOMERS: Yes.

22 JUDGE WALD: You talked about your vast preference being for

23 videolink as opposed to deposition. I'm wondering - I read your paper

24 last night - if that is a general policy of the Prosecution.

25 Let me be specific. In another case in which this Chamber is

Page 6744

1 involved, the Prosecution has itself put forth and actually been given

2 permission for 23 depositions. This was the Prosecution's policy in order

3 to expedite the trial. They did limit it, and we limited it in our order,

4 to what were called subsidiary witnesses; in other words, not witnesses

5 dealing with the most vital actions or behaviour, but background,

6 jurisdictional, other issues. And I find it difficult to reconcile that

7 with a position which says that depositions should not be used except

8 where health does permit it.

9 Also, I wish to bring to your attention - you probably know

10 already - that the Prosecution submitted proposals to the Plenary Session

11 of the -- or to the Rules Committee which would greatly make more flexible

12 the use of many of the things which you oppose in here. I'm wondering, do

13 we have a Prosecution policy or do we have a different policy for each

14 Prosecution?

15 MS. SOMERS: Judge Wald, this is more specific to this case. This

16 is not -- this is because the reason for wanting to get so many

17 depositions going -- in principle, as provided for in the Rules, it is a

18 very viable tool when used prudently. There are certain types of

19 witnesses who, I think, in our judgement, should not not be before the

20 Bench.

21 The concern in the Kvocka case was that we would not get started,

22 and this was to get us started. Also, I believe it was discussed at a

23 time before the witness lists were refined and pared down to a more sure

24 number. A number of these -- a number of the witnesses for whom

25 depositions has been suggested or would be suggested are witnesses who

Page 6745

1 would address key, very disputed issues, core issues to this indictment or

2 to the charges.

3 So, no, of course, as a tool provided for in the Rules, I'm aware

4 that it will be invoked. But in this particular case, I think the

5 circumstances under which it originally was raised have changed, unless

6 there is --

7 JUDGE WALD: Just to follow through. I understand and can

8 understand an argument made that a particular witness should not be

9 deposed because it's a critical witness and you want to have the

10 opportunity via videolink or live testimony. But there were suggestions,

11 or at least I read them as such, in your written motion, and I think they

12 were echoed in your oral motion, that as a general notion, we don't think

13 depositions ought to be used unless there's illness or there's some vital

14 reason. I did find that to be quite at odds with other advocacy of the

15 Prosecution in other cases, as well as in its general Rules, and I wanted

16 to clarify that.

17 I understand if you say, "Not this witness because this witness

18 has got key material," but not, "No depositions because we don't think

19 they are a good idea unless somebody is physically ill."

20 MS. SOMERS: Entirely my fault, Your Honour.

21 JUDGE WALD: We just wanted to clarify that.

22 MS. SOMERS: I'm not representing a policy of the entire office.

23 I'm looking at the history of this particular case and why it arose in

24 this case --

25 JUDGE WALD: So you would agree that we should -- we, the Chamber,

Page 6746

1 in deciding whether a deposition was appropriate, should look at the

2 particular witness and what that particular witness proposes to testify

3 to.

4 MS. SOMERS: Very much so, Your Honour. I think that is

5 critical.

6 THE INTERPRETER: Microphone.

7 JUDGE RODRIGUES: [Interpretation] Ms. Somers, with your

8 permission, I should like to introduce a new perspective in this debate.

9 It is true you mentioned the specific character of this particular case,

10 and I do understand your position. You make mention in your response of

11 the principle of equality of arms which has been invoked in this case on a

12 number of occasions. You know that we managed to reach a compromise

13 because the depositions were quite opposite and extreme at the beginning.

14 It is perfectly natural for a case involving five accused, that each of

15 him has his idea of how to approach a particular problem. So we

16 considered this problem of depositions from that particular perspective.

17 But there is something new that I should like to introduce in the

18 present debate. Let us try not to think of the depositions. We have so

19 far focused on the principle of orality of testimony and on the presence

20 of witnesses in the courtroom, and such principle never took place for the

21 Prosecution. We should like to try to see who are the witnesses whose

22 presence in the courtroom is necessary and important. All other witnesses

23 could be heard by way of affidavits and depositions. I think it would be

24 more practical and more efficient to proceed in that way because if we

25 continue to think about depositions only, I think it is going to cause us

Page 6747

1 a lot of problems and involve additional costs.

2 So I should like to appeal to the parties to take this particular

3 aspect into account: to have a look at the list of witnesses once again

4 and try to decide who are the witnesses who should be brought physically

5 to the courtroom; as regards other witnesses, to see if it would be

6 possible to hear them via affidavits and depositions. I think that we

7 have so far good case law in that respect, and I think it would be very

8 useful for the parties to make use of this provision.

9 Let me give you a couple of guidelines as regards the use of lists

10 of witnesses in this way. Now, we should perhaps see who are the

11 important witnesses and who are the witnesses who have to be brought into

12 the courtroom. We also have to bear in mind the use of time when it comes

13 to the physical appearance of the witness in the courtroom. I'm not going

14 to be more specific than this. I hope that you know what I have in mind.

15 To bring a witness here to the courtroom and to hear him, to

16 examine him, for only half an hour, maybe that is not a very important

17 witness in that case. Maybe such a witness could be heard via affidavit

18 or deposition.

19 I do not wish to offend anyone's position here, but I'm afraid

20 that we are running the risk of transforming this Tribunal into a travel

21 agency, because we are simply forcing witnesses to spend a long time

22 travelling, we spend a lot of money doing that, and eventually the witness

23 spends only 30 minutes in the courtroom.

24 I know that things cannot be approached from that angle only. But

25 we have to bear in mind the fact that there is the quantitative aspect and

Page 6748

1 the qualitative aspect of the problem. If it is absolutely necessary to

2 bring a witness here and to examine him for about 30 minutes maybe, then

3 that's fine, but one should perhaps ask oneself beforehand whether it is

4 really necessary to bring such a witness to testify before the Chamber.

5 So the list of witnesses should be reviewed once again from that

6 perspective, and we should see whether it's really necessary for such

7 witnesses to be brought here. On the basis of that, we will reach

8 appropriate conclusions and review the list of witnesses.

9 Of course, we have to bear in mind the equality of arms here and

10 the criterion that was applied to the Prosecution was the following: You

11 have a certain amount of time and it is up to you to make use of that

12 time. However, there are certain aspects of the problem which have to be

13 taken into consideration here, because it is different when we have to

14 bring five witnesses for two weeks or 50 witnesses for the same period of

15 time. So this also involves the economical aspect of the procedure.

16 I do not want to impose certain restrictions in terms of time to

17 you because it's finally up to you to decide. Each one of the accused has

18 his idea of his defence and his case, and it's eventually up to you to

19 decide.

20 I have, perhaps, mentioned too many things at once, too many new

21 elements for this debate, and I apologise for doing that. But please bear

22 in mind the position of the Chamber, that is, that we should perhaps leave

23 aside, forget about the depositions at this point in time and think about

24 other possible approaches to the issue.

25 Sorry once again for having interrupted you, Ms. Somers. Please

Page 6749

1 continue.

2 THE INTERPRETER: Microphone, please.

3 MS. SOMERS: No problem at all, Your Honour. Thank you for

4 clarifying the Chamber's position on this and giving us some guidance.

5 I do want to indicate to the Chamber that, in discussions with my

6 learned opponents, the concerns of many of the witnesses who are not

7 coming to The Hague are because of penal interest, and therefore live here

8 would not have been an option for them one way or the other. So in trying

9 to accommodate the concerns, and realising we will certainly, where a

10 number of these witnesses will be critical for us, want the opportunity to

11 cross-examine, these would be the most important witnesses to bring to the

12 Chamber's attention.

13 On issues -- I beg your pardon, I'm losing my voice. But also

14 where, in the affidavit arena, the witness -- we may raise an objection,

15 and if the Chamber admits the affidavit over objection, at least several

16 of counsel were generous enough to indicate that they would present their

17 witness for cross-examination if the Chamber permitted us to do so. And

18 again, if these are the same witnesses who are concerned about making a

19 personal appearance in The Hague, we would have to do this again in

20 videolink. And all I would ask the Chamber to help us craft is some means

21 of organising those witnesses who would be properly the subject of video

22 live testimony, for whatever reasons - in the Defence's eyes, their

23 legitimate penal interests - then we would be very grateful for that

24 assistance. And where it appears to be appropriate to use the other means

25 provided for in the Rules, we will abide by the Chamber's decision.

Page 6750

1 Excuse me one minute.

2 [Prosecution counsel confer]

3 MS. SOMERS: Unless the Chamber wishes for us to go accused by

4 accused, if it is acceptable to -- we stand on our positions that we have

5 tried to articulate in advance for you to look at. And if there are

6 questions perhaps that may arise on our position - excuse me - during the

7 positions asserted by the Defence, may we then have an opportunity to

8 respond at that time to know if there's a change from anything that's been

9 given to us in writing.

10 JUDGE RODRIGUES: [Interpretation] Oh, I'm sorry. I apologise.

11 Judge Wald? Thank you.

12 JUDGE WALD: I just had one question on your affidavit position.

13 You seem to have, with reference to several possible witnesses, opposed

14 using the 94 ter affidavit route because you said that they appeared to be

15 testifying about essential facts in dispute and you thought that violated

16 the spirit of 94 ter. If not, as you are well aware, the actual Rule

17 doesn't draw a distinction between so-called essential and -- or essential

18 or critical; it just says "a fact in dispute." And I just wanted to

19 clarify that. Your position is that affidavits, even if they meet

20 technically the requirements laid down by the Court of Appeal in that they

21 are direct, they have a direct nexus with the testimony of some live

22 witnesses and the technical advance notice requirements, that they're

23 still inappropriate for witnesses who are testifying about core issues?

24 Is that your position, or what? I just wanted to make sure I had it

25 right.

Page 6751

1 MS. SOMERS: Judge Wald, partly yes, partly no. Certainly on

2 issues that are absolutely focal, and particularly where someone whose

3 role or whose knowledge may be crucial for our proof, we would need, and I

4 think under the general -- under 20, 21, we would be entitled to try

5 to -- or we would be obligated to get the truth before the Bench by

6 carrying out a very effective cross-examination. Your Honour is

7 absolutely correct. Disputed fact is the definition, but the appellate

8 decision gives a fair amount of discretion to the Chamber in the use of

9 them, and we would ask this Chamber if it would like us to specify exactly

10 which individuals following -- or if at the next conference we should

11 discuss this. We would be very happy to do that. Yes.

12 JUDGE WALD: Okay.

13 JUDGE RODRIGUES: [Interpretation] Ms. Somers, the next -- as

14 regards the next Status Conference, we will see about that. But I have a

15 question for you. You have had contact with Defence counsel. Are you

16 under the impression that you are likely to reach an agreement sometime

17 soon or is it your opinion that no agreement is possible? As far as I

18 understand, Defence counsel intimated that it would be possible to

19 cross-examine witnesses even if they testify through affidavits. So do

20 you think that there is a possibility for that or not, that is, a

21 possibility of reaching an agreement with the Defence?

22 MS. SOMERS: Your Honours, my perception of our meetings was one

23 of guarded optimism in terms of trying to arrive at certain timesaving yet

24 fair means. Mr. Fila voiced no opposition to the concept of videolink.

25 Am I fair to represent that? If the Bench would permit me to make that

Page 6752

1 representation. In terms of other issues such as the order of crossing

2 those accused who have already given direct, there is as

3 to -- there appears to be one counsel who does not necessarily go along

4 with what appears to have been represented earlier in the record by the

5 other counsel. And I think that may be an issue where we may not arrive

6 at agreement, but we are trying to do that. We are trying very hard, and

7 I want to say that I was very gratified that there was this much

8 cooperation.

9 JUDGE RODRIGUES: [Interpretation] Thank you. We should perhaps

10 now proceed counsel by counsel. Actually, Ms. Somers, you should perhaps

11 now address the issue individually per accused and then the Defence

12 counsel can respond. Perhaps you should now analyse positions of

13 individual Defence teams and then later on we will hear their response,

14 again individually, so that we can save some time.

15 MS. SOMERS: Your Honours, if it might facilitate things, just to

16 go in the order of our response, if everyone has it, it could give a

17 certain flow to it that might make it go faster.

18 Starting on page 5 of our response, I would like to say that

19 Mr. Krstan Simic has kindly rectified the problem of the names of the

20 witnesses. Has everyone had a chance, I hope, to find it? So that is one

21 issue that is okay. Witness AK continues to be a matter which we will

22 have to seek resolution on. Let me just go through this. Otherwise

23 everything else on page 5 is okay. No concerns there.

24 Turning to -- on page 9, paragraph 23; page 9, paragraph 23, it

25 concerns the accused Kvocka. The submission contains no information about

Page 6753

1 two of the witnesses contained in its witness list in attachment III. The

2 names -- I don't know whether or not I'm at liberty to raise these or to

3 voice these. If this could be addressed, we would be very grateful.

4 Nothing on page 10.

5 And then on page 11, paragraph 27, the use -- or considering as an

6 exhibit or including on the exhibit list psychiatric examinations is, in

7 our judgement, inappropriate. These are in fact subject to Rule 94 bis

8 and all those Rules must govern. So if those Rules are complied with with

9 the relevant time period and our opportunity to challenge or not, then I

10 think that would cure it, but they do not belong properly on this type of

11 exhibit list.

12 This has covered our concerns, and if the Chamber would like us to

13 come back and address anything after Defence response, we would be happy

14 to.

15 JUDGE RODRIGUES: [Interpretation] Mr. Simic, Krstan Simic, would

16 you like to respond at this point so that we can proceed individually?

17 MR. K. SIMIC: [Interpretation] Yes, Your Honour. Thank you.

18 At the meeting that we held with the Office of the Prosecutor,

19 they indicated a certain number of problems and we accepted their

20 objections, and we submitted a brief in which we explained these issues,

21 elucidated them. We have submitted the list of witnesses. We plan to

22 call 26 witnesses and we have indicated 4 alternative witnesses.

23 We followed the intentions of the Chamber as regards the use of

24 affidavits. A witness will testify on a particular fact and then we will

25 have a witness testifying by way of affidavits on that fact. I don't

Page 6754

1 think that we are required to disclose them at this point because they

2 will be introduced five days prior to the appearance of the witness,

3 because witnesses might fail to appear, and we believe that we will be in

4 full compliance of Rule 94 ter.

5 As regards the request of the Prosecutor to cross-examine

6 witnesses who will testify via affidavit, we are not in a position to

7 effect the decision of the Chamber. We do object to that decision, but it

8 is within the discretion of the Chamber. The Chamber will decide whether

9 there is a need for those witnesses to be cross-examined.

10 We are somewhat concerned as regards this problem. We do not wish

11 this to become a strategy of the Prosecutor, that is, to cross-examine

12 each witness testifying via affidavits. In that way, I think we will

13 bring into question the very existence of this institution, of this

14 institute, this particular procedure, or rather a tool which we believe to

15 be very useful here.

16 We decided to call Witness AK in our case. This particular

17 witness has been -- was called by the Prosecutor. The Prosecutor has

18 expressed its opposition to our calling this particular witness, and to

19 that effect it has cited the case law of this Chamber, stating that on one

20 particular occasion this type of request was rejected. However, I must

21 remind you of the practice of the Office of the Prosecutor. They

22 prevented the Defence from communicating with Prosecution witnesses. On

23 one particular occasion I requested such opportunity, such access to their

24 witnesses, and that request of mine was rejected. Thereby it was not

25 possible for us to elucidate certain very important facts.

Page 6755

1 There is something specific as regards our request. The Chamber

2 has spent a lot of time addressing the issue of exhibits, the

3 admissibility of statements given by witnesses to the Office of the

4 Prosecutor. As regards Witness AK, his statement was admitted because he

5 was one of the first witnesses in the case, and it became a part of the

6 record. However, in a later decision, the statement was withdrawn. That

7 particular statement contains a number of crucial facts which we didn't

8 discuss because they were contained in the statement that Witness AK gave

9 to the Office of the Prosecutor. By this later decision, those facts were

10 redacted from the file -- from the record, rather. They do not exist on

11 the record. So that is the reason why we should like to ask the Chamber

12 to enable us to call once again Witness AK, who is ready to come here and

13 testify pursuant to our request, because that witness will certainly make

14 his contribution in the truth-finding process.

15 The second issue that was broached by the response of the

16 Prosecutor is the issue of exhibits concerning the accused Kvocka.

17 JUDGE WALD: Mr. Simic, can I just clarify one point before you

18 move on to exhibits? I understand that the 28 witnesses that are listed

19 are all going to be, in your view, live witnesses who actually come to the

20 courtroom; is that right? Any affidavit witnesses will be --

21 MR. K. SIMIC: [Interpretation] Twenty-six. Twenty-six, Your

22 Honour.

23 JUDGE WALD: Twenty-six, right. But all 26 will be live, and any

24 affidavit witnesses will be in addition to the 26? I just want to make

25 sure I understand that. Is that right?

Page 6756

1 MR. K. SIMIC: [Interpretation] Yes. Yes.

2 JUDGE WALD: All right.

3 MR. K. SIMIC: [Interpretation] Twenty-six plus fourteen.

4 JUDGE WALD: Okay.

5 MR. K. SIMIC: [Interpretation] Your Honours, this is a specific

6 case in many respects. Any questions which are not directly linked to

7 Omarska itself are extremely important when dealing with the question of

8 the relationship of the accused Kvocka because he's charged with

9 persecution. That is why the Defence will have to demonstrate certain

10 things showing what his positions were, what his choices were, and that is

11 why we have offered a certain number of exhibits.

12 The Prosecution has objected to DP-57 and DP-58 from our list. I

13 have to say that those are documents which I received from the

14 Prosecution, in fact, and these are medical documents about the wounding

15 of members of the security from the Omarska police station: Miroslav

16 Nisic, referring to an event dated the 30th of May.

17 Furthermore, the Prosecution is also objecting to Exhibits DP-59,

18 89, 90, 91, 92, and 93, 94/1, 94/2, and 94/3. I have to explain what this

19 is all about. These are judgements of military courts, documents of

20 military courts, which reveal a drastic attitude towards persons who fled

21 or avoided being drafted. The sentences were drastic, and we wish to

22 illustrate a time, a situation, an atmosphere, for the Chamber to be able

23 fully to judge what possibility of choice the accused had at their

24 disposal.

25 Also we heard testimony here that Muslim vehicles were

Page 6757

1 requisitioned as an element of persecution. We have tendered charges

2 again to persons of Serb ethnicity to show that this was a regular

3 practice in relation to other members of other ethnic groups, and Kerim

4 Mesanovic spoke about this. Therefore, these are exhibits which can be

5 highly relevant, and I see no reason why we should not offer them to the

6 Chamber and allow the Chamber to judge their relevance rather than

7 objecting to them even being tendered.

8 As to the objection to the introduction into the record of expert

9 witness reports, we accept the objection as those exhibits will be dealt

10 with when the question of expert testimony is addressed. And to save

11 time, I can immediately tell the Chamber that our intention is to submit a

12 motion in which we will offer these reports and have them admitted without

13 calling the expert witnesses because we don't see that to be necessary.

14 But we have listed him just in case there could be any changes in the

15 position of the Prosecution.

16 So I think that we have resolved all the disputed issues except

17 those that are up to the Chamber to rule on, that is, Witness AK and the

18 question of these exhibits.

19 Thank you, Your Honours.

20 JUDGE RODRIGUES: [Interpretation] I think, Mr. Simic, that there

21 is a question which Ms. Susan Somers raised, that is, paragraph 23 of her

22 response.

23 MS. SOMERS: Your Honour, may I address you?

24 JUDGE RODRIGUES: Yes.

25 MS. SOMERS: I believe that has been cleared up. Mr. Simic has

Page 6758

1 provided us with an updated list. Thank you very much.

2 JUDGE RODRIGUES: [Interpretation] Very well. Thank you. Thank

3 you very much, Mr. Krstan Simic.

4 So, Ms. Susan Somers, in relation to the accused Kos.

5 MS. SOMERS: Your Honour, before we proceed with accused Kos, may

6 we have just a moment to respond to these points while they're fresh in

7 our minds, so that the Chamber is aware of what issues remain as to these

8 points, if I may.

9 JUDGE RODRIGUES: [Interpretation] Yes, yes, of course. That is a

10 better idea.

11 MS. SOMERS: Thank you.

12 As to Witness AK, the position, it's a bit puzzling to the

13 Prosecution in that the witness, of course, did appear and was fully

14 examined with opportunity to have the case -- with a required case to be

15 put to the witness when the witness was in court. The notion of reliance

16 now on statements, which has at all times been opposed by the Defence,

17 seems a bit inconsistent and not a basis, certainly, for bringing back a

18 witness who was here and whose statement was with the Defence and could

19 have been used and incorporated ably into cross-examination at the time.

20 Again, Rule 90 specifically states that one does put to the

21 witness the case. There appears to be no basis for dragging a witness

22 back when that witness could have, at the time, been fully and completely

23 examined. I do not think that is the purpose of -- I don't think that

24 that actually comports with the notion of a fresh witness list. It seems

25 to skirt, in our judgement, the obligation of the Defence to completely

Page 6759

1 examine a witness at the time on all materials that are before counsel.

2 The Trial Chamber, on another occasion, on the 3rd of May, gave an

3 oral order on the Prosecution's motion for protective measures in which

4 the Prosecution requested -- we mentioned AK -- I'm sorry. We asked if we

5 could contact AK and see if the witness wished to speak to the Defence.

6 The witness did not wish to speak to the Defence any further. So I think

7 we have done that which we can do. But it eludes us as to why, when all

8 of this could have and should have, for judicial economy, been dealt with,

9 it was not.

10 On the issue of 94 bis, expert statements and submission, the Rule

11 actually does not give the Defence -- does not lay the decision of whether

12 or not live testimony would be required. If a challenge is raised to the

13 report, then the right lies with the Prosecution to have that expert

14 brought for cross-examination. We have indicated to counsel that we would

15 exercise such right where we deem appropriate upon receipt -- a timely

16 receipt of the 94 bis statements.

17 [Prosecution counsel confer]

18 MS. SOMERS: As to the items referenced in paragraph 26, page 10

19 of our response, the DP-numbered items, the language of the paragraph,

20 just to bring it to the Chamber's attention, is not one of objection, it

21 is one of questioning the relevance. It specifically states, and I

22 quote:

23 "At this time, the Prosecution has no objection to the majority

24 of the exhibits contained in this list. However, the Prosecution

25 questions the relevance of the following exhibits ..." and goes on to

Page 6760

1 itemise them.

2 If the Chamber is satisfied as to the relevance, then this is what

3 we had asked for further clarification upon.

4 JUDGE RODRIGUES: [Interpretation] Ms. Susan Somers, you can now

5 continue with respect to the accused Kos. Let me tell you that we intend

6 to make a break at about 11.30.

7 Thank you for correcting me, Judge Riad. I said 10.30.

8 MS. SOMERS: The discussion about the accused Kos in our document

9 begins on page 11. The issues which have been raised that we wanted to

10 bring to the Chamber's attention, again, we discussed -- I think the only

11 real critical ones were the issues of deposition where we thought it would

12 be inappropriate. We have raised that in response to Judge Wald's inquiry

13 as to our overall position.

14 The issues of -- I'm sorry. I think that's it. I think --

15 JUDGE WALD: You oppose all nine deposition witnesses, it says in

16 your motion here; right?

17 MS. SOMERS: It would be our preference, Your Honour. Yes, we

18 would oppose them. We think these witnesses are out of character and will

19 present evidence which would require cross-examination before the Bench,

20 so the Bench has a chance to observe --

21 JUDGE WALD: And that's on the grounds that they are -- all I know

22 is from here; that's on the grounds that they were all guards?

23 MS. SOMERS: Very much so, with the perspective that I believe, in

24 the quest for truth, this Chamber should be able to inquire into.

25 JUDGE RODRIGUES: [Interpretation] Mr. O'Sullivan? No, sorry.

Page 6761

1 Mr. Nikolic, perhaps.

2 MR. O'SULLIVAN: There is one other aspect to the Prosecution's

3 submission that we discussed with the Prosecution a couple of days ago,

4 and that's in paragraph 28.

5 We seek some guidance from the Chamber and perhaps the registrar

6 on the way in which we should designate witnesses for whom we seek

7 protective measures, which pseudonym we could use to perhaps distinguish

8 Defence witnesses as between themselves and from Prosecution witnesses who

9 have pseudonyms.

10 We will, of course, be seeking protection by way of motion and

11 we'll do that forthwith. But can we be told how Your Honours would like

12 us to designate our witnesses? We chose D2/A on the assumption that "D2"

13 was the second accused Kos, and "A" being the first of his witnesses. But

14 if you can tell us how you'd like it done, then we will file that request

15 for protection early next week.

16 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Nikolic.

17 MR. NIKOLIC: [Interpretation] Your Honour, Mr. O'Sullivan and

18 myself have divided up one of the questions in the Prosecution's

19 submission and that is the question of depositions, which is the only

20 point raised in relation to the accused Kos.

21 The question of deposition testimony has a long history. We have

22 been discussing it ever since 1999. The Defence of the accused Kos, when

23 suggesting and proposing deposition testimony, had in mind Rule 71 of the

24 Rules of Procedure and Evidence. The first sentence of that Rule reads:

25 "... when that is in the interests of justice."

Page 6762

1 I think that I don't need to explain that the Defence would like

2 most of all to have all its witnesses present in the courtroom. The

3 reasons why this is not possible have been explained as exceptional

4 circumstances, and we have elaborated on that in our submissions so far.

5 The reasons why the witnesses don't wish to come to The Hague and to this

6 courtroom would require, in my mind, psychological treatment and

7 explanations.

8 Let me refer briefly to the key arguments of the Prosecution that

9 they offer in opposing depositions.

10 As far as the Defence has been able to understand, the only reason

11 is due to the absence of visual contact, which enhances the credibility of

12 the witness. It is the submission of the Defence that the credibility of

13 the witness is determined by the content of his testimony, all the more so

14 as Rule 71 envisages the possibility of cross-examination and that the

15 Prosecution is in no way prejudiced as it does have the ability to

16 cross-examine.

17 No mention was made today of this, but I don't know whether the

18 present Prosecution team is concerned by security reasons which were

19 referred to quite frequently earlier on when depositions were discussed.

20 I have to say that the previous team, led by Ms. Brenda Hollis, was

21 explicit in its position that the Prosecution does not rely on security

22 reasons; that it is ready to carry out deposition testimony, as suggested

23 by the Defence, in Banja Luka.

24 Therefore --

25 JUDGE RODRIGUES: [Interpretation] Mr. Nikolic, excuse me for

Page 6763

1 interrupting you, but I would like to see, if possible, whether you would

2 consider the idea that I introduced into the discussion, that is, to

3 revise your list, to abandon depositions, so as to have a combination of

4 presence in the courtroom and affidavit statements, that is, statements

5 under oath; or are you insisting on depositions? That is, in your

6 opinion, would it be possible to make such a revision so as to have live

7 witnesses and affidavit witnesses?

8 MR. NIKOLIC: [Interpretation] Your Honour, you're asking too much

9 of me at this stage. I cannot tell you that without consulting the

10 witnesses again. We have proposed nine witnesses for depositions. Now

11 that we have the 65 ter briefs of the other Defence teams, we saw that two

12 witnesses have been proposed to be heard in court. Whether they will come

13 or not, I don't know. But as regarding the remaining seven, I would have

14 to contact them to see whether one, two, or three of them would be ready

15 to come here to the court and whether the others could testify by

16 affidavits. But I cannot tell you at this stage.

17 So to summarise, because of all the reasons that the witnesses are

18 insisting on, not the Defence. It is the Defence's duty to try and meet

19 their requests as much as possible, but in the interests of justice so

20 that the truth may be heard. Of course, it is up to the Court to judge

21 their testimony. We prefer deposition testimony as the first priority,

22 and the second possibility would be a videolink, if the Chamber should so

23 decide; this is to say, what we consider to be crucial is that those

24 witnesses proposed by the Defence should not be moved from Banja Luka.

25 Thank you, Your Honour.

Page 6764

1 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Nikolic.

2 Madam Susan Somers, your comment, and then we will have the

3 break.

4 MS. SOMERS: Your Honours, first of all, I want to reassure this

5 Chamber and my counsel opposite that security issues for us are not at all

6 an issue any more than they would be for anyone else present there from

7 this Tribunal. That is not a factor. We are willing to go to Banja

8 Luka. Ms. Hollis has been very firm on that and I continue, and that is

9 our position.

10 The category or genre of witness about whom we are speaking, I can

11 envision posing a great deal of, shall we say, spirited examination. With

12 this type of witness, Your Honours, in the absence of the Chamber which

13 referees and monitors, of course, the delivery or the leading of evidence,

14 I believe that it would be very difficult, given some of the roads down

15 which we would hope to go on cross-examination, to elicit answers.

16 In a deposition posture - and I have the greatest respect for the

17 legal officers who would be handling it and I do not have a concern

18 there - it concerns the ability to proceed orderly. Objections are only

19 voiced on the record. If a witness does not answer, as he or she would

20 have to do before this Chamber or face the consequences therefrom, it will

21 impede the inquiry and it will cause having to do it again. I do not

22 believe, in good faith, that there is any saving of either time or money

23 if that is the case.

24 Based on the experience of other trials, there are some very

25 difficult witnesses and this genre of witness, many of whom will have

Page 6765

1 their own problems which prohibit them, in their view, from attending live

2 in The Hague, will not be willing, I am confident, to answer certain

3 questions.

4 Therefore, the Chamber, I believe, is the core -- the presence and

5 participation and observance of the Chamber with this type of witness is

6 essential in order to make an effective cross-examination in order to

7 deliver to this Chamber the best possible evidence that we can deliver. I

8 believe that we can certainly, with counsel, try to pare down those

9 witnesses about whom this would be an issue and present it to this Chamber

10 for consideration. But I believe that that will ultimately happen.

11 Let's see. Was there any other point? I think those were the

12 only concerns.

13 Our discussions with Mr. Nikolic -- with the Nikolics and with

14 Mr. O'Sullivan were very fruitful. It was my understanding at the time

15 that it was either videolink or deposition. I didn't sense at the time

16 that there was a distinction or preference. Nevertheless, I do want to

17 emphasise our willingness. And, of course, we will send a member of the

18 trial team to Banja Luka. It would not be without live participation from

19 any of the staff that we deem appropriate.

20 So the Court has our assurance that the security issue is not a

21 concern, absent some grave change in circumstances. Thank you.

22 JUDGE RODRIGUES: [Interpretation] I think that before we proceed

23 with the accused Radic, we should have a break. It is true that the

24 question of money and time is not essential, but it is certainly a factor

25 affecting the organisation in justice. One has to have the time and the

Page 6766

1 money that is required, and it is in this perspective that we are trying

2 to discuss matters so as to organise, in the best possible manner, the

3 presentation of evidence.

4 I think that now is the time for the break. I apologise for not

5 saying before that we intend to work in the following way: to have a

6 half-hour break now and then to proceed until 1.00; if necessary, to

7 continue in the afternoon. We would begin at about 2.30 until about 5.30,

8 if necessary. So this is just for you to be able to organise your time.

9 So a half-hour break now.

10 --- Recess taken at 11.25 a.m.

11 --- On resuming at 12.06 p.m.

12 JUDGE RODRIGUES: [Interpretation] Please be seated.

13 Let us resume our hearing. In view of our schedule, we're now

14 going to hear the response of the Prosecutor as regards the accused Radic.

15 Ms. Somers, let us hear you. You have the floor.

16 MS. SOMERS: Your Honours, for the benefit of all, this is

17 contained at the very bottom of page 12 of our response, if it will help,

18 and the actual text begins on page 13. Paragraph 31 brings into question

19 on our part the report of Dr. -- as a courtesy preview, the report of

20 Dr. Nenad Kecmanovic. The initial readings of this report have led us to

21 believe that we will undoubtedly file a motion to exclude on relevance

22 grounds, as well as bias. If in fact the Chamber deems it appropriate to

23 admit the report under Rule 94 bis, we will clearly seek to cross-examine

24 on this. And so this is both a relevance and, if we get beyond that and

25 it goes in, 94 bis issue. That would also cover point 32.

Page 6767

1 And then on point 33, again these are properly the subject of 94

2 bis and all the provisions which apply thereto.

3 Paragraph 34, Dr. Beatovic, the issue would -- excuse me one

4 second. We think the relevance is very questionable and urge the Chamber

5 not to consider it. But should the Chamber consider the report, we would,

6 under 94 bis's provision for challenge, challenge it.

7 Moving on to paragraph 37 on page 14, the discussion of

8 affidavits. The language that we think is particularly salient here is

9 that affidavits, of course, are not to substitute for live testimony, only

10 to add to, under the provisions of both the Rule and the appellate

11 decision interpreting it. In this instance, accused Radic's first ten

12 would provide evidence which goes to absolutely critical, fundamental

13 issues of the indictment. For example, the group discussed in paragraph

14 37 discusses -- it would produce evidence on the position of the accused,

15 which is critical for this Court to assess and for the Chamber to conclude

16 as it will on it, based on the evidence. Cross-examination, in our view,

17 is absolutely necessary to give a full, truthful picture of what these

18 witnesses would have to say and should not be left to the untested method

19 of affidavit.

20 38, the evidence concerns the behaviour of the accused Radic as

21 well as the treatment of detainees, absolutely fundamental issues of this

22 indictment, for which cross-examination should lie.

23 Paragraph 39 goes to evidence of what actually happened in the

24 camp. There are -- these are camp guards who were there and will tell you

25 what they saw, what occurred, and the actions of accused Radic. Again,

Page 6768

1 these are issues which are absolutely to the core of the indictment and

2 are not properly the subject of affidavit.

3 The appellate decision, of course, leaves great discretion to the

4 Chamber and leaves it to be decided on a case-by-case basis, and in our

5 judgement, these cases would be cases where affidavit would be

6 inappropriate.

7 Moving on to paragraph 40 --

8 JUDGE WALD: Is it your position that anybody who attempts to give

9 any kind of evidence about anything that went on in the camp is going to

10 be core and essential and couldn't be done, even if you could show a

11 direct nexus under 94 ter, such as the Court of Appeals did require in the

12 Kordic case? That appears to be your position, that if they were there in

13 the camp, that anything they have to say about the camp or the position of

14 anybody or anything is essential, core and, under your theory, shouldn't

15 be the subject of an affidavit. I just want to see if that's basically

16 your position.

17 MS. SOMERS: Much of our position, Your Honour. It is not just

18 what went on and about whom; it is the accused in the camp that they are

19 being called to discuss, and this I believe would differentiate it from a

20 general background of the camp as a camp. We are talking here about the

21 accused Radic. And yes, in our view, under these circumstances, in this

22 type of case-by-case analysis, this would not be --

23 JUDGE WALD: I understand that about the behaviour of Radic. I

24 mean, I understand your position in 38. It's a little less clear about

25 the position of him and the organisation of guard duty. And then in 39,

Page 6769

1 it just says "apparently served as guards," and these witnesses -- and

2 doesn't say whether those witnesses in 39, what they would testify about.

3 MS. SOMERS: If in fact any of the evidence which -- having not

4 seen the affidavits, any of the evidence which may be suggested - I'm

5 sorry - which may be put forth goes to these issues, then we certainly

6 would take that position. I would be better served if I had them in front

7 of me to be able to represent to the Chamber what it is specifically,

8 because I have only a general summary. But I think it is fair to say: In

9 these cases, one who works in a camp will be privy to much information

10 that can only come from an insider, and it would be our obligation to

11 explore that fully to bring to the Chamber's attention and make sure that

12 nothing is left out of the record.

13 JUDGE WALD: So your core position appears to be --

14 THE INTERPRETER: Microphone.

15 JUDGE WALD: Sorry. Your core position appears to be that anybody

16 who is going to testify about the camp, about conditions or anything in

17 the camp, can only do it by live or videolink?

18 MS. SOMERS: I will --

19 JUDGE WALD: That's going to make for one long, long trial.

20 MS. SOMERS: It is our hope, Judge Wald, that if we have -- excuse

21 me.

22 [Prosecution counsel confer]

23 MS. SOMERS: Those who worked there, Your Honour, those people who

24 were actually part of the machinery.

25 JUDGE WALD: Right. Right, I understand.

Page 6770

1 MS. SOMERS: And drawing that distinction, not just anyone who

2 happened to perhaps have delivered food to the camp, unless there's a

3 particular incident that must be addressed. But it may indeed require at

4 the front end having a bit more time. However, if it turns out in the

5 course of trying it by some other method -- and I just want to make sure

6 that when the Bench refers to "live," it also contemplates videolink as

7 live testimony.

8 JUDGE WALD: I meant -- I understand your position on videolink.

9 MS. SOMERS: I think in these instances, if we had to risk having

10 to stop or come back or ask the Court to impose some type of sanction for

11 failure to comply, which is, again, I think very realistic, it might be

12 more judicially economical to try to do it quickly, in a well-fashioned,

13 crisp cross-examination, live, get it over with, if that were -- hopefully

14 that will be the way it will happen.

15 JUDGE WALD: It's a nice ideal to aim for, but, I mean, you know,

16 your ending up the Prosecution case has taken a long time to get to that

17 point. If we take every witness the Defence proposes, we would have

18 somewhere in vicinity of 150 witnesses. And we know from experience they

19 don't get up and everything goes boom, boom, boom and get down and the

20 next -- you know, it takes a long time.

21 MS. SOMERS: We do try to present a reasonable position, factoring

22 every consideration that the Chamber must account for. But again, if the

23 Chamber is asking is this our position, it is. And if we are ordered to

24 pare it down or if we have to try to come to an accommodation with counsel

25 opposite, then we will try to do that. But yes, that is our position at

Page 6771

1 this time.

2 JUDGE WALD: Okay.

3 JUDGE RODRIGUES: [Interpretation] Ms. Somers, I should like to ask

4 you a question as a follow-up to the question asked by Madam Judge Wald.

5 I think that it is good to have -- it would be good, even ideal, to have

6 here all of the victims who were detained in Omarska, and as regards the

7 Defence, it would probably be ideal for them to hear all of the employees

8 of the camp here in the courtroom, but we cannot do that, and I don't

9 think that we are going to finish this case before the end of the next

10 year if we proceed in that way. One should bear in mind the fact that it

11 is not only the Chamber who has other commitments but also the Tribunal.

12 We have to be realistic.

13 Okay. We are going to continue in the same spirit, but at the end

14 I will try to give you the appropriate guidelines so that everybody can

15 adopt a realistic position. You know that we had many problems with the

16 testimony of Prosecution witnesses. We cannot afford to have the same

17 problem once again. We have to provide the Defence with adequate

18 opportunity to prepare themselves and to prepare their case in an

19 appropriate manner.

20 We were badly affected with a series of changes that took place in

21 this trial, and now I should like to hear the parties as regards their

22 positions and we will see if it is possible to make an agreement and to

23 find a compromise. If there is no such agreement, the Chamber will issue

24 adequate ruling, with the view of bringing this case to its close.

25 Sorry for having interrupted you, Ms. Somers. I just wanted to

Page 6772

1 share my concerns and my confusion, to a certain extent, in this regard

2 because we would end up hearing a number of people who were employees at

3 the camp and we cannot afford to call them all. I assume that there was a

4 great deal of them working at the camp. I just wish to express this

5 concern of mine to you, Ms. Somers. Please continue.

6 MS. SOMERS: I appreciate that and I think it will help us in

7 trying to reach some type of accord. I do want to indicate that should

8 affidavits for some of these persons be accepted, if the Chamber would

9 consider, if we raise an objection, permitting us to cross-examine only,

10 not to reiterate live, but perhaps only to cross-examine in the location

11 that is appropriate and limit it just to the points not requiring the

12 live, complete testimony but simply cross on the affidavit testimony, if

13 that might be a possible consideration as one possibility.

14 If the Chamber, after we have had a chance to confer with our

15 colleagues opposite, finds that we can make an order -- at least present

16 to them our greatest concerns and then present that to the Chamber, that

17 there are some for whom it would really be a no-go on an affidavit, a

18 not-possible affidavit or not reasonable, and some who are corroborating,

19 perhaps things that were said by those key witnesses, if the Chamber would

20 consider that, we would also be grateful, as an alternative, if nothing

21 else meets the time considerations.

22 Moving on to paragraph -- let me see, I believe it was 40. I

23 think the issue in paragraph 40 is that all these -- these persons

24 essentially corroborate the testimony of two persons only. It's a --

25 besides the cumulative nature which generally offends Chambers, they are

Page 6773

1 going, again, to very, very key issues. I would have to put this in the

2 same category as my previous comments for the Chamber to consider.

3 Paragraph 41, no problem.

4 Paragraph 42, we are not in possession at this time of a list of

5 exhibits. It did not accompany or become incorporated into the 65 ter

6 papers submitted by the accused Radic's counsel, and we'd just ask if we

7 can please have that.

8 Thank you.

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

10 Ms. Somers. I think that Mr. Fila, he is going to refer to a list of

11 exhibits as well.

12 Mr. Fila, you have the floor.

13 MR. FILA: [Interpretation] Mr. President, I will tell you a nice

14 surprise. I do not have any exhibits at all. In accordance with 65 ter,

15 exhibits and documentary evidence are listed, if they exist, in a

16 pre-Defence brief, but I don't have such evidence. All the written

17 material that I have was actually tendered by the Prosecution, and I

18 cannot offer anything that I don't have. I'm not going to have any

19 documentary evidence, so I think that issue has been settled. This was

20 referred to and discussed with the Prosecution yesterday.

21 As regards the remaining issues, I shall try to be as brief as

22 possible and to explain a couple of points. Though the situation looks

23 complex, I don't think it will turn out to be that complex in the end.

24 As regards experts, Professor Kecmanovic, in particular, you have

25 his CV. He was a highly-placed official, and his report was paid for by

Page 6774

1 the Tribunal and he received appropriate fees for his report. So I think

2 that the Tribunal deems his report to be adequate and necessary. It is

3 kind of a counterpart to the report presented by Witness Greve, whom we

4 did not cross-examine or object to.

5 In addition to two reports, the witness will be able to provide

6 the Chamber with his expertise. If it is necessary to cross-examine him,

7 well, let him be cross-examined. I personally think that a

8 cross-examination is not necessary. I think that we would only be wasting

9 time discussing something which was already discussed with Witness Greve.

10 So the position of the Defence is as follows: Whoever started the

11 war is now irrelevant. The Statute provides for individual responsibility

12 of the accused. It is not necessary to establish who attacked whom in

13 this war. What we have to establish is whether there were any crimes that

14 were committed.

15 So the reports given by experts such as Dr. Kecmanovic or

16 Dr. Greve is something useful for the Court to have in order to establish

17 what really happened in the former Yugoslavia. I apologise. But let me

18 repeat once again: If the Prosecution requests a cross-examination, I

19 will not oppose their request.

20 As regards experts Dr. Ana Najman and Dr. van den Bussche, it was

21 the Court who decided to hear this gentleman, to hire this gentleman. I

22 don't know him, but I presume that it was the Court who decided that his

23 report was adequate and useful, because he was actually appointed by the

24 Court. I think that we will only be wasting time by cross-examining

25 Dr. Ana Najman and Dr. Bernard van den Bussche. However, if the

Page 6775

1 Prosecution wishes to do so, let them have the cross-examination of the

2 witnesses.

3 As regards Dr. Stanko Beatovic, he was heard on the same facts in

4 the Kunarac case, and I will submit the relevant transcript of his

5 testimony and also his written report that is currently being translated.

6 I do not intend to call him for direct examination. However, I believe

7 that it is necessary for the Prosecutor to cross-examine this particular

8 expert witness. Why? In case this Court should establish that there was

9 a rape, I think it would be very useful to hear this witness because he is

10 an expert on the area and he was always heard as such in the Kunarac

11 case.

12 There is, however, something additional which is specific for this

13 particular case. There is a slight difference which is contained in his

14 report, which is currently being translated and will be submitted to the

15 Prosecutor as soon as possible. According to the Statute, you are bound

16 to take into account the judicial practice in the former Yugoslavia, and

17 he discussed the topic in the Kunarac case. It would not be amiss to hear

18 him once again or to read his written report. Either possibility is

19 acceptable for this Defence team.

20 I just wish to say once again that I was abiding by what you

21 suggested, Your Honour, that is, that written reports be submitted and

22 that no additional time is wasted for this matter. It is up to the

23 Chamber to ascertain the quality and the usefulness of this report.

24 As regards point 5, we submitted a list of 26 witnesses. Some of

25 them will be called. We are not going to call anyone whose name is not on

Page 6776

1 the list. We are perfectly aware of the fact that we cannot call 26

2 witnesses within ten days. But we will definitely call some of them and

3 hear them in the period of two weeks.

4 Should the videolink be opted for as a solution in respect of

5 those witnesses, then we would bring only three of those 26 witnesses and

6 the remaining 23 would be heard via videolink, if this is less costly for

7 the Tribunal. So this number of 26 witnesses is only a tentative figure

8 because we cannot hear as many witnesses in two weeks' time.

9 As regards the issue of affidavits, our position is as follows in

10 this matter: A witness testifies and an affidavit accompanies him. If

11 the Prosecution wants to cross-examine, in that case, the Court judges

12 whether that is necessary or not. We believe it is not. But if the Trial

13 Chamber judges that it is necessary, then this is done by videolink. That

14 was the agreement that we reached with the Prosecution.

15 A matter of principle which I should like to raise: You can

16 organise that only once you have reviewed the affidavits which we will

17 submit. That is something that I will do on behalf of Radic; that I will

18 provide the Chamber and the Prosecution with all the statements and all

19 the affidavits more than a month prior to my turn so that you will be

20 fully aware of what is going to be said. So if the Chamber allows

21 cross-examination, there will be adequate time for that to be organised.

22 I wish to underline that the people for whom affidavits are taken

23 do not wish to come to The Hague, but they are ready to be cross-examined

24 either by deposition or by videolink in Banja Luka or by taking an

25 official statement under oath before a legal officer. So that would be

Page 6777

1 the procedure. A witness, affidavits, and cross-examination only by

2 videolink in Banja Luka. This applies to all the affidavits that we

3 intend to submit.

4 Let me add one further point. It is not up to the Prosecution to

5 judge the value of affidavits and what they contain. Those are people who

6 are here or there and it is up to them to testify. I can't bring people

7 from Rwanda to say that Mladjo Radic was the shift leader or not. This

8 can only be said by someone who was there. I have no other witnesses.

9 They were either victims or they were guards. These guards are afraid to

10 come. We will hear them by videolink in all cases when the Prosecution

11 and the Trial Chamber considers it necessary. But I don't think you

12 should be unnecessarily concerned, that is, regarding all the affidavits

13 that the Prosecution seems to be uncomfortable about.

14 As for paragraph 41, the affidavit of Idriz Mujkic, to save on

15 costs and out of my respect for Mr. Niemann, I asked him to be kind enough

16 to take an affidavit from this person and he did so, Mr. Niemann himself,

17 in person. I told my learned friend, Ms. Somers, "If that man testifies

18 on the trivial fact that Mladjo Radic assisted him, gave him a transistor

19 radio or something - it doesn't matter - if the Prosecution is of the

20 opinion that cross-examination is necessary, they can bring him here to

21 The Hague." But this entails a great deal of cost and I don't know how I

22 would be able to do that. If the Prosecution can do it, then let them do

23 it at the expense of the time given to me -- I mean within my time.

24 And, finally, the last point I wish to make has to do with Witness

25 K. By omission of the Prosecution, I was not able to see a statement of

Page 6778

1 her's and she will be brought here by courtesy of Mr. Saxon. It will be

2 at the expense of their time but at my request to answer questions that

3 she was not able to answer because I wasn't given the document in time.

4 So, as you see, it won't take too long.

5 Thank you, Your Honours.

6 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Fila.

7 Ms. Susan Somers.

8 MS. SOMERS: Your Honour, just to avoid having the wrath of the

9 second floor on my shoulders, it is the Victims and Witnesses Unit which

10 will handle bringing that witness and not Mr. Saxon. We will certainly

11 facilitate in any way we can to make sure that this happens.

12 On paragraph 41, about the individual to whom reference is made, I

13 just wanted to emphasise that we are simply reserving our right to call.

14 We have not seen the affidavit. We will try to be reasonable. And if

15 this was a matter that was agreed upon between Mr. Niemann and counsel,

16 I'd just like to have a look at the affidavit that will be submitted. I'm

17 sorry, the statement. I beg your pardon.

18 MR. FILA: [Interpretation] I do apologise. We have given it to

19 you. You have that statement. Ms. Brenda Hollis has it and Mr. Niemann

20 gave it to me. So you had it before I had it.

21 MS. SOMERS: I have not had a chance to make the assessment, and I

22 will get back to you on it. I apologise for that but time was not on my

23 side. Thank you.

24 JUDGE RODRIGUES: [Interpretation] So now we have come to the

25 accused Mr. Zigic, Madam Susan Somers, so you have the floor again.

Page 6779

1 MS. SOMERS: Your Honours, a number of issues had come up in the

2 course of our discussions with counsel for Mr. Zigic.

3 The first issue is referred to in paragraph 45, which can be found

4 on page 18 of our document. The concern raised by us was transmitted to

5 Mr. Stojanovic, and we simply called to his attention the provisions of

6 Rule 75(D) which we believe apply here, and we simply passed on that

7 considered judgement to him.

8 On page 20, the particular incident is discussed where it says,

9 line 1, "There are a number of names which I will not read out loud and we

10 will have to correct the record. We apologise. There will be a

11 corrigendum followed with pseudonyms. This was inadvertent." But the

12 incident is a very notorious incident and there were days of testimony

13 before the Chamber. Again, this would fall very much in a category of

14 "need to go into evidence greatly."

15 Paragraph 50 is a 94 bis matter and we'd simply indicate that

16 those provisions would have to be invoked.

17 Let me just take a quick look.

18 The transcript testimony was of concern to us inasmuch as - this

19 is my understanding after having read the record - the Prosecution was not

20 able to introduce transcript testimony. We would ask the Chamber to

21 consider whether or not that should be changed, essentially an equality of

22 arms type posture, that transcript testimony had not been used before.

23 A concern was raised about matters which are really not within the

24 Prosecutor's bailiwick, of a concerned method of investigation by a

25 Defence counsel. When raised to us, essentially as a courtesy, we simply

Page 6780

1 suggested that counsel raise the issue, perhaps, in motion form to the

2 Chamber, and I have seen this morning a motion that addresses the

3 particular concern. So I believe that Mr. Stojanovic will raise that

4 matter to the Chamber. Just so the Chamber knows, it was raised to us in

5 this discussion which we held with Defence counsel.

6 I believe at this point that's pretty much where we stand on

7 that. Thank you.

8 JUDGE RODRIGUES: [Interpretation] Thank you very much, Madam Susan

9 Somers.

10 Mr. Stojanovic, please.

11 MR. STOJANOVIC: [Interpretation] Thank you, Your Honours. I think

12 that there are no major differences between us and the position of the

13 Prosecution. There was a question raised regarding observance of the

14 rules of confidentiality and the protection of certain witnesses who

15 appeared earlier on in this Court. We are referring to Witness R from the

16 Tadic case. However, from our submission, it is not possible to decipher

17 the name of that witness. However, from the response of the Prosecution

18 in paragraph 44, it is clear who this was.

19 I have to raise the problem regarding this witness. Mr. Zigic has

20 been charged with a very grave offence. We have heard here two or three,

21 in our opinion, highly contradictory witnesses. One witness in the Tadic

22 case, that is, this Witness R, in great detail and precision described

23 that particular event. That witness was called as a witness for the

24 Prosecution in our case too. However, in spite of all their efforts, the

25 Prosecution did not manage to bring him in. The Defence would like that

Page 6781

1 witness to be brought here.

2 We fully agree with the Prosecution's suggestion that the witness

3 be provided with full protective measures. However, in view of the fact

4 that this witness is also a victim, did not respond to the invitation of

5 the Prosecution, we're highly pessimistic that he will respond to an

6 invitation from the Defence to appear. So we expect that we will have to

7 appeal to the Trial Chamber for assistance in this case so that we might

8 ensure his presence in this trial. In that context, the transcript from

9 the Tadic case will show us to what extent that witness is relevant for

10 this case and also highlight the necessity for such steps to be taken.

11 Therefore, our submission of this exhibit can also be viewed in this

12 light.

13 The position of this Defence team is that your suggestion

14 regarding affidavits is quite acceptable for us. If I may go back to this

15 topic very briefly, the one that my learned friend Ms. Somers raised, this

16 Defence team considers confidentiality of certain facts from the

17 indictment to be a very serious obstacle and we have made a written

18 submission dated the 5th of January. We are not quite sure whether it has

19 reached you, Your Honours, whether you have received it. The gist of it

20 is that confidential attachments to the indictment prevent us from

21 interviewing people about what the indictment charges our client with. We

22 have to ask whether Mr. Zigic participated in the killing of a certain

23 person or the beating up of a certain person. However, with these

24 confidential schedules, we have no right to mention the name of the

25 victim.

Page 6782

1 I have made this submission. Unfortunately, it doesn't appear to

2 have reached you. Maybe I have taken advantage of the time for this

3 digression.

4 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Stojanovic. I do wish

5 to interrupt and tell you that we have received this motion from you, so

6 that you should know. We have been informed about it.

7 MR. STOJANOVIC: [Interpretation] Your Honours, I consider this to

8 be a problem for us in preparing our Defence case, and I think that the

9 confidentiality should be rescinded, and, as a matter of principle, we are

10 against the victims being held secret. However, by our objection, we do

11 not intend in any way to call in question the established timetable for

12 the continued proceedings, and please accept this as an expression of our

13 wish to fully cooperate with the Chamber.

14 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Stojanovic.

15 Ms. Susan Somers.

16 MS. SOMERS: Because, in my judgement, anything concerning the

17 particular witness would require a moment of private session, is it

18 possible to have a moment of private session?

19 JUDGE RODRIGUES: [Interpretation] Yes, perhaps it would be

20 appropriate. We have planned a private session at the end, but never

21 mind. Just to deal with this point very briefly, we'll go into private

22 session now.

23 [Private session]

24 (redacted)

25 (redacted)

Page 6783

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Page 6784

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12 [Open session]

13 THE REGISTRAR: We're in open session.

14 JUDGE RODRIGUES: [Interpretation] Thank you very much. So we now

15 come to the accused Mr. Prcac, Ms. Susan Somers.

16 MS. SOMERS: Accused Prcac's section appears on page 23 of our

17 document, beginning with paragraph 55. The request in paragraph 56 is to

18 give the Prosecution an opportunity to look at the exhibits and make a

19 determination as to whether or not there would be any objection thereto.

20 On the issue of affidavits, the same considerations apply in that

21 those seven persons appearing in paragraph 57, referring to page 24 of our

22 document, those -- the proposed, I believe, proposed testimony of those

23 seven persons would go to the heart of the Prosecution's case, to very

24 key, core issues. And again, if in fact the Chamber were minded to admit

25 them, perhaps over our objection, we would ask to be able to have the

Page 6785

1 opportunity, should we deem it necessary, to cross-examine, and done at

2 the location that is appropriate, as discussed earlier.

3 Paragraph 59. We also believe that this particular witness would

4 be appropriate to be the subject of cross-examination because the

5 testimony does relate specifically to events that are key to the

6 indictment. And if there's anything further, again we can examine whether

7 or not, once we see it, if the Chamber were minded to admit it, we would

8 look again at possible cross-examination.

9 JUDGE RODRIGUES: [Interpretation] Thank you.

10 Mr. Jovan Simic.

11 MR. J. SIMIC: [Interpretation] Your Honours, I shall proceed in

12 the same order as my learned friend from the Prosecution. The list of

13 witnesses that we have submitted pursuant to your order consists of three

14 parts. The first was a list of witnesses who would appear in The Hague.

15 The Defence of Mr. Prcac had in mind that oral testimony is the most

16 important and the most relevant in the spirit of the proceedings, and that

17 is why it decided to bring witnesses that it considers to be key

18 witnesses, people who were on the spot, who were there, who saw or could

19 have seen, who were eyewitnesses of what was going on over there. The

20 Prosecution had no objection regarding that list.

21 As for part 2, or annex 2, all the exhibits are now being

22 translated. The translation service is working rather slowly, and that is

23 the only reason why the Prosecution has still not received those

24 exhibits. However, in our conversation yesterday, we agreed that all the

25 statements, the affidavits, and the documents that will be used as

Page 6786

1 exhibits will be disclosed as soon as we receive them from the translation

2 service, not waiting for the seven-day deadline. We also agree to hand in

3 the affidavits in advance to establish whether the Prosecution has any

4 objection regarding the form, which we consider to be appropriate and in

5 accordance with the laws of Republika Srpska.

6 As for affidavits, we have submitted 11 or proposed 11 as

7 exhibits. The Prosecution feels that eight of these should be

8 cross-examined. In accordance with your order, in our submission we

9 included a table containing the name of the witness, the facts it will be

10 testifying about, whose testimony it will be corroborating, and what

11 counts the affidavit refers to. I agree that perhaps the circumstances

12 are rather -- the facts that the witness will be -- the description of the

13 facts is rather vague, but out of the seven witnesses that the Prosecution

14 deems should be cross-examined, only one of those was in the camp. The

15 position of this Defence team was that these are statements that only need

16 to corroborate the facts given by key witnesses in annex 1 of our

17 submission. None of these was in the camp, none of them worked there.

18 One was there, but three kilometres away, as a civilian person providing

19 security of the facilities in the surroundings. So we really do not see

20 why this witness would have to be brought here. It would be a waste of

21 time and money. But if the Court feels it necessary, we can have all

22 those witnesses cross-examined either by videolink or deposition, whatever

23 the Court decides. We feel it would be logical for this to take place in

24 Banja Luka.

25 There's something else. We have the problem with one witness

Page 6787

1 called Obrad Popovic, who is afraid of flying, but he's willing to come by

2 car, if necessary.

3 As for the last witness that the Prosecution wishes to

4 cross-examine from the affidavit list, Slavisa Dzukanovic, this witness

5 will simply say two things: first, that he doesn't know Mr. Prcac, that he

6 never met him in his life; and secondly, how the military press centre

7 operated in which he had worked, which was mentioned in the proceedings.

8 So if those two sentences are reason enough for bringing such a witness

9 here, we have spoken to the witness and he's ready to come. Our position

10 was that in such cases, in accordance with the advice of the Trial

11 Chamber, such witnesses should not be brought here. But if the

12 Prosecution insists, we will bring him.

13 Also at the meeting we had with the Prosecution yesterday, we

14 asked the Prosecution to help us contact a certain number of witnesses who

15 were proposed by the Prosecution but who did not testify here, though they

16 had been announced and even affidavits had been provided. So the

17 agreement was that their investigators will contact them and let us know

18 whether we can get in touch with them, and then we will see what the next

19 steps will be, whether we will call them or whatever. Thank you very

20 much.

21 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Jovan Simic.

22 Ms. Susan Somers to respond before the break, please.

23 MS. SOMERS: Your Honours, I would like to take a moment, and I

24 have indicated already to counsel this morning that Mr. Waidyaratne has

25 already spoken with one of the members of our investigative staff who will

Page 6788

1 undertake to contact those four witnesses. We will report back as soon as

2 we have the information and we'll do it in a letter form, copied to the

3 Chamber so the Chamber is aware.

4 The last issues on the affidavits, I would ask, similar to our

5 representation to the Chamber, that we would look at the actual content of

6 them. Based on what was suggested from the descriptions in the

7 65 -- based on what was suggested in the 65 ter papers, it appeared to us

8 that these would not be necessarily the proper subject of affidavits.

9 However, we are very willing to see the content of them, and where there

10 is no real issue that could not be resolved by affidavit or that appears

11 simply to be corroborative, we will certainly so indicate and go along

12 with that. We simply need to have the documents. And we appreciate fully

13 the difficulties with the vast number of things that have to be

14 translated.

15 We were provided by Mr. Jovanovic a copy of the type of affidavit

16 which will be in use, and I'm told by another of counsel that this is a

17 rather typical format, and we will have a look at it at our first

18 opportunity. It was given to me just before session began this morning.

19 Thank you.

20 JUDGE RODRIGUES: [Interpretation] I think we are unable to

21 complete the Status Conference, in view of the matters we still have to

22 discuss, before the lunch break, so I think we will have to come back in

23 the afternoon. So we are now going to have a break until 2.30, as I said

24 earlier on, and we will come back here at 2.30 to continue working, which

25 must not go beyond 5.30.

Page 6789

1 --- Luncheon recess taken at 1.02 p.m.

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Page 6790

1 --- On resuming at 2.32 p.m.

2 JUDGE RODRIGUES: [Interpretation] Please be seated.

3 Let us resume with our Status Conference now and let us try to

4 finish the discussion of the pre-Defence briefs of the accused.

5 Before we wind up this particular issue, I should like to know

6 whether the Defence counsel wish to add anything concerning the question

7 of witnesses and exhibits. Is there anything else that we need to address

8 at this point? No? Very well.

9 I think we can conclude the following, though I have not asked the

10 Defence counsel explicitly. But I have asked the Prosecutor to tell us

11 whether there's any opportunity, any possibility, of reaching agreements

12 between the parties, and as far as I understand the situation, I think

13 that the answer is positive. I think that there are certain issues that

14 can still be discussed. So I should like to appeal to the parties to try

15 to reach an agreement, to meet together and to discuss the outstanding

16 issues. After that, if there are still issues which cannot be agreed

17 upon, then the Chamber will render an appropriate ruling.

18 In order to do that, we hereby convene a meeting on Thursday next

19 week. I think you will have enough time to discuss the remaining issues.

20 We will hear if there has been any progress in the meantime. On Thursday

21 you will inform us of your agreements, if any. If there are still issues

22 that need to be agreed upon, then the Chamber will make a ruling, an oral

23 ruling, on Thursday.

24 But let me at this point invite the Defence counsel to review once

25 again their list of witnesses. I am thinking in particular of the Defence

Page 6791

1 counsel for Kos and Prcac. Once you have organised yourselves and once

2 you are ready in terms of the preparation of your case, I should like you

3 to tell us what your stand is on the issue of depositions. So please have

4 a look once again at your witness list and tell us who are the witnesses

5 that you wish to bring here to the courtroom, before the Court, and who

6 are the witnesses who can testify via affidavit.

7 If you think that there are still a lot of witnesses that you wish

8 to call here to testify before the Chamber, if you have witnesses who are

9 afraid or who have certain concerns in terms of their security or safety,

10 then there are still two other possibilities: the possibility of testimony

11 via videolink and also the possibility of the Chamber issuing safe

12 conducts. Once again, we should all bear in mind what the Prosecutor said

13 regarding those witnesses.

14 So if you think that you still have witnesses who run that risk,

15 the risk of being accused, we still have a possibility of other forms of

16 testimony. I think there is still a certain space that we have here to

17 organise ourselves. So please try to discuss the issue amongst yourselves

18 and bear in mind this particular aspect of the presentation of your case.

19 As regards the issue of judicial economy, try to see whether you can

20 abridge the testimony of witnesses in any possible way so that we do not

21 waste too much time on their testimony.

22 As I have already indicated, it is, of course, possible for a

23 witness to testify only 30 minutes in court; however, if we bear in mind

24 the problem of judicial economy, we have to think of other possibilities.

25 The same applies to the Prosecutor when it comes to cross-examination. Of

Page 6792

1 course, we will call a witness to the Tribunal to be cross-examined if

2 such a request is perfectly justified. If there are grounds for such a

3 request, we will grant it. However, I am appealing to your sense of

4 organisation and common sense, if I may say so, in addressing this

5 particular issue.

6 There's another thing that I wanted to mention in this context.

7 As you know, the Chamber is faced with the following possibility: If the

8 time for the Defence case is much too long, the Chamber will then take it

9 upon itself to restrict that time, and this is something that we applied

10 in the case of the Prosecutor. However, I think that the Defence counsel

11 can cooperate amongst themselves and they can come forth and tell us

12 whether they need all of the time that is allocated to them for a

13 particular week.

14 So we should all have to bear in mind the overall time that is

15 allocated to the Defence case. If one of the Defence counsel does not

16 need all of his time, then he can, perhaps, give that time to his

17 colleague who needs that additional time, as we have seen in the case of

18 Mr. Fila who has discussed this possibility with the Prosecutor.

19 The Chamber will, therefore, wait for you. We will come back, we

20 will convene on Thursday, next Thursday, and we will see what the

21 situation is. If you manage to reach an agreement, we will, of course,

22 abide by your agreement. If, however, there are still issues which are

23 not resolved, then at that point the Chamber will make an appropriate

24 ruling.

25 Those were the guidelines that I wanted to give to you in order

Page 6793

1 for us to be prepared for the beginning of the Defence case on the 25th.

2 So today we have an opportunity to review all of the oral decisions that

3 were taken during the Prosecution case but only to remind us of all such

4 decisions. If there is anything outstanding, we can discuss it next

5 Thursday.

6 As regards the Status Conference of today, the list of witnesses

7 and exhibits, I think that we have more or less covered it all.

8 Let me just remind you that it would be advisable for Defence

9 counsel to contact Madam Registrar and the Registry - I have already

10 raised the issue with her - in order to find a way of marking exhibits for

11 identification in view of the fact that there are already Defence exhibits

12 that need to be tendered into evidence. So that's one practical matter

13 which needs to be addressed and discussed with the Registry. I don't see

14 any other points that need to be raised at this point.

15 Mr. Simic, you wish to say something? Let us hear you.

16 MR. K. SIMIC: [Interpretation] Your Honours, I have two questions

17 for the Chamber. Bearing in mind the preparations that we have to carry

18 out, we would like the Status Conference to be held on Friday. That would

19 be more convenient for all of us. But if you decide that it should be

20 held on Thursday, we will abide by your decision.

21 There are certain decisions which we need to hear as soon as

22 possible, and that is the issue of cross-examination of Mr. Kvocka and

23 Mr. Radic. I am supposed to begin on the 22nd. If Mr. Kvocka should be

24 cross-examined at the very beginning, which is our preference, and my

25 learned colleague Ms. Somers said she would need all the time that is

Page 6794

1 allocated to her, then I will need to know what the situation is because

2 of the witnesses that I intend to call later on. So we would like to hear

3 that today.

4 We would also like to hear from the Prosecutor as to the length of

5 the cross-examination of the accused Kvocka so that I can organise myself

6 in terms of my other witnesses who need to be brought here, especially

7 bearing in mind all other constraints, including the financial ones.

8 JUDGE RODRIGUES: [Interpretation] Yes, Ms. Somers.

9 MS. SOMERS: Your Honours, we had mentioned, we certainly had

10 raised this point at the beginning of the session this morning about the

11 timing of the cross of the two accused who have testified, and I wanted

12 very much to assure the Chamber that we will need at least, I would

13 estimate, two days but that we would very much hope to have the cross take

14 place at the end of Mr. Kvocka's and Mr. Radic's cases.

15 Again, reading back from the transcript of 15 February 2000 -- I

16 have to be cautious because, in fact, it was a closed session so I will

17 only allude, if I may, with the Court's permission, to that which concerns

18 this discussion. Is that all right?

19 JUDGE RODRIGUES: [Interpretation] Ms. Somers, I'm afraid I don't

20 quite follow what you are trying to tell us. I apologise. You have

21 mentioned the 15th of February, 2000. In relation to what?

22 MS. SOMERS: To the point, Your Honour -- there was an in-court --

23 again, it was a closed session so I'm only alluding to that which will

24 cover the point about when the Prosecution would cross-examine accused

25 Kvocka and Radic. And the discussion suggested that - I apologise to the

Page 6795

1 interpreters - that there is no obstacle for the cross-examination to take

2 place when the Prosecution wishes to do it. It was pretty much left with

3 the Prosecution -- at no time have any of my predecessors anticipated

4 having to have -- to start out with cross-examination, and indeed, under

5 the Rules for cross, it appears the spirit contemplates that you cross not

6 just as to the testimony of the individual, of Kvocka or Radic, but also

7 as to the case that underlies it, and we would need the benefit of the

8 case in order to do it. We had no problem ultimately with the concession

9 to have it go out of order, and we would ask the Court to grant us this

10 much, to actually start our cross after all of their witnesses have

11 finished; in other words, that they should be the last to be crossed in

12 their cases.

13 JUDGE WALD: Can I ask you if you're talking now simply about

14 defendants Kvocka and Radic? If, for instance, if some of the other

15 accused choose, should later choose to testify, and suppose that one of

16 the other defendants says, "Yes, I want to testify and I want to testify

17 up front in my two weeks," you're not suggesting you get the cross at the

18 end of that two weeks, are you, or are you? That's what I want to know.

19 MS. SOMERS: In principle, in fact, Your Honour, I was suggesting

20 that. It is not that --

21 JUDGE WALD: I wanted to clarify that.

22 MS. SOMERS: Yes, it would be our preference.

23 JUDGE WALD: That's certainly a bit unusual, isn't it? I mean,

24 certainly, in the system you and I are used to, when somebody testifies,

25 the cross immediately follows. We have a special situation with Kvocka

Page 6796

1 and Radic here because it's separated by almost a year, so whether it's at

2 the beginning or at the end may not be that crucial. But if you've got a

3 regular witness, I don't know whether --

4 MS. SOMERS: In our system, of course; I agree. If, in

5 fact -- that would be our first preference as to all. However, however

6 the Bench grants it on the others, and I believe that we have been

7 informed that -- is it Mr. Zigic? -- may also elect to testify, then

8 because it will be close in time, you're correct, there certainly is a

9 different scenario. But as to the two who testified long ago, we would

10 very much ask for this time. Thank you very much.

11 I think there was also -- excuse me. There was one other issue

12 that we had discussed among ourselves and wanted to just get a reading

13 from the Chamber on, and that would be the amount -- the number of days'

14 notice as to the actual so-called batting order of witnesses, the order in

15 which they will be presented. If the Chamber could inform as to how it

16 views fairness on this, we would appreciate it now. Thank you.

17 And there was an issue raised, I believe, by Mr. Radic's lawyer on

18 another matter, medically-related matter, which perhaps they care to

19 address and we will give our input on.

20 JUDGE RODRIGUES: [Interpretation] Very well. Thank you. As

21 regards the time of the cross-examination of Mr. Kvocka and Radic, I

22 thought that the Defence counsel had accepted the wish expressed by the

23 Prosecutor; that is, that the cross-examination take place at the end of

24 each of their cases, that is, at the end of the Kvocka case and the end of

25 the Radic case respectively. Now I don't know. I'm no longer sure

Page 6797

1 whether the Defence counsel for Kvocka and Radic accept or not the wish

2 expressed by the Prosecutor.

3 Mr. Simic.

4 MR. K. SIMIC: [Interpretation] Your Honours, we said that we would

5 like for Mr. Kvocka to be cross-examined at the beginning of our case.

6 However, the decision rests with you.

7 JUDGE RODRIGUES: [Interpretation] Okay. Very well. Yes. An

8 issue has been raised here by Ms. Somers concerning the health of

9 Mr. Radic. I'm not quite sure what it is all about. Ms. Somers, am I

10 wrong?

11 MS. SOMERS: It is a medically-related thing, but not about the

12 accused. Let me just find the correspondence. Yes. It was --

13 JUDGE RODRIGUES: [Interpretation] Okay. [In English] [Previous

14 translation continues] ... Mr. Radic's lawyer or another matter,

15 medically-related matter, which perhaps they care to address in --

16 MS. SOMERS: Yes. It has to do -- something was served on our

17 office on the 8th of January for production of medical documentation, and

18 there has been correspondence by Ms. Hollis earlier on the 17th of

19 November, 2000, which was sent directly to Mr. Fila, not just an oral

20 representation. And if that has not solved the problem, then perhaps he

21 would care to take it up with us.

22 JUDGE RODRIGUES: [Interpretation] Yes, but I think that there has

23 been a motion which is still pending. I don't know whether it was the

24 motion submitted by the accused Radic on the 9th of January for the

25 production of medical documentation. I don't know when it can be

Page 6798

1 discussed. Perhaps we can address the issue at this point.

2 Mr. Fila.

3 MR. FILA: [Interpretation] (redacted)

4 (redacted)

5 (redacted)

6 (redacted). So I wanted

7 the appropriate medical documentation to be submitted so that we can check

8 their words, whether their problems are indeed a consequence of their stay

9 in the camp or not. But I cannot do it in any other way but with an

10 appropriate order issued by the Court. So those witnesses should be

11 directed to produce such documentation so that we can see whether they

12 really suffer from such consequences. So I should like to move the

13 Chamber to issue appropriate orders for the production of such

14 documentation, because we have heard them about their problems, and if

15 indeed they are consequences of their stay in the camp, then that should

16 be proved.

17 JUDGE RODRIGUES: [Interpretation] Well, at any rate, we are here

18 to hear your application. Mr. Fila has told us about the objective of his

19 motion. I know that there has been a motion, that it has been submitted,

20 but I have not received it yet. So we can now have a hearing on the

21 motion. Mr. Fila has already told us what the purpose of the motion is,

22 we have also heard Ms. Somers, and it seems to me the appropriate way to

23 address the issue. So before a motion is submitted, the parties should

24 meet and discuss the issue and try to resolve it before submitting a

25 motion.

Page 6799

1 Let us hear you on the issue, Ms. Somers.

2 MS. SOMERS: Thank you, Your Honour. First of all, if I can ask

3 for -- to let the Chamber know that the reference to these witnesses needs

4 to be redacted. They were closed-session matters. And if we will discuss

5 this, may we have a brief private session on it?

6 JUDGE RODRIGUES: [Interpretation] Yes, but let us try to organise

7 ourselves a little bit. I envisaged a private session to discuss all of

8 the issues concerning outstanding motions. I should really like to finish

9 first of all with the questions concerning pre-Defence briefs, and only

10 after we have finished with pre-Defence briefs can we address the issue of

11 outstanding motions so as not to go back and forth in private session. So

12 we have to bear in mind the objective of the Status Conference.

13 As regards the list of witnesses and the list of exhibits, I think

14 that we have heard all of the arguments. I have indicated a number of

15 guidelines, recommendations, so that the counsel can organise themselves.

16 So now we are going to move on and we will move into private

17 session to discuss all of the outstanding motions. Private session,

18 please.

19 [Private session]

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 6800

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Page 6815

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 [Open session]

7 JUDGE RODRIGUES: [Interpretation] We are in public session. Let

8 me repeat that there are no other outstanding motions that need to be

9 discussed. But let us hear you, Mr. Fila.

10 MR. FILA: [Interpretation] Mr. President, I don't know whether you

11 have made a slip, but you said that the trial, that is, that the case

12 should begin on the 25th. I don't know whether you misspoke or not. It

13 is supposed to begin on the 22nd.

14 JUDGE RODRIGUES: [Interpretation] Yes, you're right. You're quite

15 right, Mr. Fila. The opening of your case should be on the 22nd of

16 January.

17 Mr. Simic.

18 MR. K. SIMIC: [Interpretation] Your Honours, we just have a

19 question. We need some explanation. I have received your decision

20 concerning my motion on the use of Rule 90(H). I should like to know

21 whether other Defence counsel have been asked in that respect -- that is,

22 do they have the same rights? I don't think that the decision is clear on

23 this matter. That is, does the same standard apply to the Prosecution as

24 well?

25 JUDGE RODRIGUES: I'm not -- [Interpretation] Judge Wald has said

Page 6816

1 yes, but I'm afraid I don't quite understand your question, Mr. Simic, but

2 I think that you have an answer as regards the clarification of the

3 decision. But I should like to understand your point. I apologise,

4 Mr. Simic. It is my mistake.

5 MR. K. SIMIC: [Interpretation] Yes, Your Honour. My understanding

6 was the same as that of Judge Wald. In the decision, an explanation is

7 provided as regards the Defence counsel of the other accused, of the

8 co-accused, but it was not explicitly stated in respect of the

9 Prosecution. I just wanted the confirmation to be made of the same

10 principle in respect of the Prosecution.

11 JUDGE RODRIGUES: [Interpretation] Yes, that is indeed the case.

12 We have come to the end of the hearing today. I don't know

13 whether you have any additional matters that you wish to raise.

14 Ms. Somers.

15 MS. SOMERS: Your Honour --

16 [Trial Chamber confers]

17 JUDGE RODRIGUES: [Interpretation] Ms. Somers, we haven't finished

18 yet.

19 MS. SOMERS: I'm sorry.

20 On this point about Mr. Simic's -- the order, I wasn't quite clear

21 about the thrust of it, but we are granted -- we have the right to

22 cross-examination. I don't think that it was ever a question about would

23 we be granted a right. So is there something special that Mr. Simic was

24 getting at that I perhaps may have missed? Was there a concern in

25 extending something else to the Prosecution? I mean, the order is here.

Page 6817

1 We cross-examine everyone --

2 JUDGE WALD: The only question I knew about or that I thought I

3 was nodding to was the order in which the Prosecution would cross-examine

4 a witness that other Defence counsel were also going to cross-examine.

5 That's the only -- and whether or not that order would apply to everybody.

6 MS. SOMERS: Each witness. In other words, it always goes in this

7 particular order.

8 JUDGE WALD: That was my understanding.

9 MS. SOMERS: If that's your understanding, okay. I couldn't tell

10 if we were starting something new.

11 JUDGE WALD: Maybe Mr. Simic has a different -- I don't know.

12 MR. K. SIMIC: [Interpretation] Your Honours, the essence of my

13 question was as follows: The Defence brings a witness to testify. We

14 know that the Prosecutor has the right to cross-examine that witness and

15 we are familiar with the relevant Rule. But the point is in the

16 following: We want to say what happens if the witness hasn't mentioned

17 XY, he hasn't said anything about XY. So we want to need [as interpreted]

18 a very clear position here. Is the Prosecution allowed to open a new line

19 of questioning, something that falls beyond the scope which regards our

20 client?

21 JUDGE RODRIGUES: [Interpretation] Ms. Somers, is it clear now?

22 MS. SOMERS: Yes, Your Honour, and I think that the Rule addresses

23 the scope of cross. I think that we can go within the parameters of the

24 very generous Rule. And should there become a question -- if there's an

25 objection at the time, we will certainly do it. And your decision covers,

Page 6818

1 on page 2 of your decision, the bottom, considering that it goes against

2 the plain wording of 90(H) to limit the scope of Prosecution

3 cross-examination further as requested, et cetera, et cetera. So this has

4 been addressed. I think it is clear.

5 JUDGE WALD: Well, now that it's been brought up, let me just make

6 sure we all think the same thing is clear, and that is - I now understand

7 Mr. Simic's question a little better - and that is, if it's -- under our

8 order of yesterday, if it's defendant A's witness and then counsel for

9 defendant B, C, or D wish to cross-examine the witness, as they can under

10 the order, they, in the order, which I don't have in front of me but my

11 memory says that that means that, they can, pursuant to Rule 90(H), do it

12 if it's mentioned -- if the direct testimony has either mentioned their

13 client or if they find it's relevant to the case for them, for the other

14 defendant, but the order says they have to tell the Bench why they think

15 it's relevant if in fact their particular client has not been mentioned in

16 the direct testimony.

17 "When a witness presented by the Defence of one accused mentions

18 another accused, the Defence of that co-accused shall be entitled to

19 cross-examine. In other circumstances, co-accused wishing to

20 cross-examine shall make an application to the Bench, explaining the

21 relevance of the proposed question."

22 That is an interpretation; it's a subinterpretation of 90(H). The

23 question is: How would that apply to the Prosecution?

24 THE INTERPRETER: Microphone for the counsel, please.

25 MS. SOMERS: I apologise. I do not believe that limits the

Page 6819

1 Prosecution. I believe that addresses specifically the co-accused. The

2 Prosecution would have its normal rights under the Rule.

3 JUDGE WALD: Yes. The Prosecution, in other words, is prosecuting

4 all five defendants.

5 MS. SOMERS: The Prosecution has wide latitude under this Rule to

6 do so.

7 JUDGE RODRIGUES: [Interpretation] I think that we are faced with

8 two different aspects of the problem. One is the scope of the

9 cross-examination. We have said on a number of occasions that the

10 interpretation of the Articles should be a flexible one. That is, if a

11 witness comes here and speaks about A, and later if mention needs to be

12 made of B, C, or D, and if there is a question regarding A and which is

13 relevant for the case, then yes, I think it needs to be brought up in the

14 cross-examination. And that is the idea of a flexible interpretation of

15 the Rules because, if we apply a strict interpretation of the Rule, then

16 we can say that the cross-examination literally cannot go beyond the scope

17 of the examination-in-chief.

18 However, what we decided is that the interpretation would be a

19 flexible one because, at the end of the day, I think that the main

20 structure of the procedure is that of the common law. However, there are

21 certain elements of the civil law where judges can assume an active role;

22 that is, the Judges are also entitled to ask questions of witnesses. So

23 this means that we are free to apply a more flexible interpretation of the

24 Rule. We need not stick to the text of the Rule itself.

25 And the other aspect concerns the issue of the co-accused, the

Page 6820

1 issue that has been addressed by Mr. Simic; that is, if other Defence

2 counsel, that is, the Defence counsel of the co-accused, may also examine

3 the witness in question.

4 So what we decided, basing ourselves on a somewhat different view

5 than that of Mr. Krstan Simic, was that others can also ask questions;

6 that is, that they can cross-examine the witness if, in one way or

7 another, his client has been mentioned, and that is more or less the same

8 principle that was adopted in the case of the Prosecution case.

9 So when it comes to the person who can -- the question is: Who

10 should cross-examine that witness? It was not absolutely necessary that

11 that witness may have mentioned the accused by name, but he may have

12 touched upon him indirectly, and this gives the counsel the right to

13 cross-examine. So I don't know whether I have clarified things or I have

14 complicated things further.

15 Mr. Krstan Simic, and after that Mr. Fila. Go ahead, please.

16 MR. K. SIMIC: [Interpretation] Your Honours, I think we are close

17 to a solution. The Kvocka Defence does not intend in any sense to deny

18 the Prosecution the right to cross-examination within the scope of the

19 examination-in-chief, to question the witness about relevant facts, upon

20 permission of the Chamber, and finally, to deal with the credibility of

21 the witness. However, our position is that that examination has to be

22 limited to Mr. Kvocka. So that by bringing witnesses, we do not wish to

23 be placed in a position that the Prosecution can carry out an

24 investigation regarding B, C, and D. They may ask whatever they wish, but

25 relative to Kvocka, if no mention was made of someone else. And then the

Page 6821

1 Prosecution could get up and say, "Witness B was in Omarska, so we can

2 question him for the next hour and a half." So we feel those should be

3 the limitations, that is, 90(H) and the provisions of that Rule, but only

4 in relation to Mr. Kvocka.

5 MR. FILA: [Interpretation] Mr. President, I have another aspect

6 that I would like to raise. Take the example of Mr. Krstan Simic. He

7 calls a witness who talks about Mr. Kvocka, whom he is defending. That

8 witness does not mention Radic, who I am defending. According to your

9 decision, I cannot ask him anything, and I don't want to ask him

10 anything. But then the Prosecution gets up and says, "Fine, Kvocka wasn't

11 there, but was Radic there?" And he says yes. Then I have to keep silent

12 because my order has gone, it's not my turn, and I can't ask him

13 anything.

14 So the wish of the Defence is that only the accused that are

15 mentioned in the witness statements of the Kvocka witness, for instance,

16 can be questioned further. So that the Prosecution's right should be

17 limited and the Prosecution would not be able to say, "If Kvocka wasn't

18 there, was Mladjo Radic there?" And then I would not be able to come back

19 to that. So only what was raised in the examination-in-chief should be

20 raised in the cross-examination, instead of going beyond the scope,

21 because I would not have the right to cross again. I would have the right

22 to cross-examine if it had been a Prosecution witness who might have said

23 that Radic did such-and-such a thing.

24 I don't know whether I have made myself clear.

25 [Trial Chamber confers]

Page 6822

1 JUDGE RODRIGUES: [Interpretation] Yes, Ms. Susan Somers.

2 MS. SOMERS: Your Honour, that type of limitation that goes

3 against the practice of Celebici, Kupreskic, generally the Tribunal, that

4 type of relevance is not bounded by mention of the name of any particular

5 individual. And if there are issues of relevance and/or credibility that

6 we think have got to be brought out, I can see no basis from anything in

7 our jurisprudence that would limit it. So -- and I didn't read that in

8 the Chamber's decision as to the Prosecution. So we would have to --

9 JUDGE WALD: Would you agree, though, that suppose exactly

10 Mr. Fila's example: Mr. Kvocka's Defence puts on something and they only

11 talk about Kvocka's presence in the camp at certain times, and then you,

12 the Prosecutor, have a feeling that that witness, you know, knows

13 something about the other defendants too. So in the cross-examination,

14 under 90(H), you say -- you start questioning them about their

15 observations about Mr. Radic, okay? And suppose the witness then tells

16 you some information about Mr. Radic. Wouldn't Mr. -- despite the fact

17 that he couldn't have met the cross-examination standards to begin with,

18 wouldn't he have the right, then, to come back and cross-examine about

19 what the witness had said in answering you about his client?

20 MS. SOMERS: It would appear that --

21 JUDGE WALD: It isn't in the Rule, but I'm just talking about

22 elements of fair process --

23 MS. SOMERS: I'm going back to my own practice and to the practice

24 in the Tribunal. Clearly, strategically, oftentimes direct is very

25 limited, intentionally, so as to attempt to limit cross. However, if

Page 6823

1 there are matters of relevance and it is presented in such a way that the

2 Chamber understands that the further inquiry, although it appears to go

3 beyond it, nonetheless goes to credibility or -- and most likely in many

4 instances it will be credibility issues.

5 JUDGE WALD: But the Rule says to give evidence relevant to the

6 case for the cross-examining party. If you are the cross-examining party,

7 it is relevant if it applies to other defendants too.

8 MS. SOMERS: Sure it is. My case is broad, which is why I --

9 JUDGE WALD: I asked you a very narrow question, and that is: If

10 that happened, wouldn't you agree that the other Defence counsel would

11 have some right to come back again?

12 MS. SOMERS: I think they -- I'm confident they will make the

13 request to the Chamber to give them that right. I have not seen it

14 readily practised that way in the case in which I necessarily had not -- I

15 am a little bit -- because we have to test the case through

16 each -- essentially through every witness, this would bind our hands --

17 JUDGE WALD: I know the -- I know why -- I've got your argument

18 clearly about the initial limitation. I understand it. But I'm saying:

19 Under your theory, wouldn't there have to be some subsequent second round

20 for somebody who got mentioned in your cross-examination, a defendant, but

21 not in the original?

22 MS. SOMERS: I anticipate that motion, and I will --

23 JUDGE WALD: I know. We both anticipate that motion. I'm

24 anticipating what your reply is to it.

25 MS. SOMERS: I think it's to be anticipated that defendants are

Page 6824

1 going to expect some -- if it's a camp in which all are found, there are

2 events that may involve the presence of --

3 JUDGE WALD: Yes, I understand.

4 MS. SOMERS: And so I think that they should anticipate it in

5 their own examination. I know that probably they won't, and I know I

6 wouldn't --

7 JUDGE WALD: You wouldn't do it if you were defending them

8 either.

9 MS. SOMERS: Correct. But I have to be a bit of a devil's

10 advocate in this type of almost hypothetical question, although I think it

11 will realise itself. I'm sorry to be somewhat less than clear on that,

12 but I think -- I have not seen it happen, and I hope that our hands

13 certainly will not be bound in any way deviating from the Rule.

14 JUDGE RIAD: Mr. Fila, would --

15 JUDGE RODRIGUES: [Interpretation] I don't think that Ms. Somers

16 has finished.

17 MS. SOMERS: If the Chamber will just grant me a second to review

18 one of the points which we made in our submission.

19 It was on page 4 of our response to accused Kvocka's request for

20 limitation, and if the Chamber will allow me to read the part that I think

21 might be helpful.

22 Our point in 4: "The clear language of Rule 90(H)(i) permits a

23 cross-examining party to question a witness about any topics that fall

24 within the subject matter of the cross-examining party's case, including

25 the conduct of different co-accused. The clear, unambiguous meaning of a

Page 6825

1 Rule should be enforced. Celebici Decision on Motion of the Presentation

2 of Evidence by the Accused," and that's the citation.

3 "When applying Rule 90(H)(i), Judges of this Tribunal have adhered

4 to this principle. For example, in the trial of Dragoljub Kunarac et al,

5 during the Prosecution's cross-examination of the accused Kunarac about

6 his co-accused --"

7 THE INTERPRETER: Would counsel slow down, please.

8 MS. SOMERS: Sorry.

9 "-- about his co-accused's membership in a different unit,

10 Defence counsel for the accused Kovac objected. The basis of the

11 objection was that, 'This set of questions goes outside the scope of

12 examination-in-chief,' or of chief, and it cites Judge Hunt responding:

13 'Cross-examination is not restricted in any way provided that it is

14 relevant to a matter at issue or relevant to credit.'"

15 That is the end of our submission on that.

16 JUDGE RODRIGUES: [Interpretation] Judge Riad has a question. I

17 will give you the floor, Mr. O'Sullivan, but let us hear the question of

18 Judge Riad first.

19 JUDGE RIAD: Thank you, Mr. President.

20 In fact, Ms. Somers gave the thrust of what I wanted to say. I

21 would just add, would Mr. Fila still maintain his question or his

22 objection if the Bench would allow him to respond?

23 MR. FILA: [Interpretation] Your Honours, that is my objective, for

24 the Chamber to allow me to do that. But with your decision, my right has

25 been restricted in questioning the witnesses on behalf of Kvocka. For

Page 6826

1 example, when such a witness has not mentioned my client, according to

2 your decision, I'm not allowed to ask him anything. If the witness is

3 then cross-examined by my learned counsel, Ms. Somers, and if I'm not

4 happy with the answer of the witness, there is nothing I can do. So I

5 should like the Chamber to allow me additional examination of the witness

6 in such cases as to that portion of the testimony involving my client,

7 Mr. Radic.

8 I hope I'm making myself clear, Judge Riad. So that would be the

9 second round that you are referring to.

10 JUDGE RIAD: Well, I suppose it has to be with the authorisation

11 of the Bench. But as Judge Wald said, it will almost start a new round,

12 and in this new round, you can ask for a response.

13 MR. FILA: [Interpretation] No. As regards the portion of the

14 testimony when such a name is mentioned. So I should be allowed to ask

15 questions regarding that part of the testimony which has resulted from the

16 cross-examination of the Prosecutor because, in view of your order, I come

17 first, before the Prosecutor. In such a situation, I am denied the right

18 to put my question if I am unable to verify the answer of the witness

19 given to the Prosecutor involving my client, Mr. Radic.

20 JUDGE RIAD: You can trust the Bench, Mr. Fila.

21 MR. FILA: [Interpretation] I have always trusted the Bench, Your

22 Honour.

23 JUDGE WALD: If I could just point out, in the order itself, in

24 the order of yesterday, it doesn't limit your, the co-accused's counsel,

25 right to cross-examine to something that is -- to the mention of a name.

Page 6827

1 It says the mention of a name. Or if the name has not been mentioned, you

2 simply have to tell us just so -- some explanation of why your line of

3 proposed cross-examination will be relevant to your party's case.

4 So that, for instance, if you get up -- if Kvocka's Defence

5 Witness A says nothing about your client, okay, and you get up but you

6 have reason to believe that that witness was present when your client --

7 in some incident your client is accused of. So you tell us, you say,

8 "There is reason to believe this witness was present when this other

9 incident with my client occurred." You just have to give us an

10 explanation so somebody doesn't get up and just start questioning out of

11 the blue when we have no idea what the relationship is of that particular

12 person to the testimony. That's my understanding of it.

13 MR. FILA: [Interpretation] Judge Wald, we are talking about two

14 different dynamics of the questioning. First, there is the part relating

15 to the Prosecutor's cross-examination, and that is quite clear. Once that

16 cross-examination is finished, I no longer have any rights. When the

17 witness is called, for example, by the accused Kvocka, that part is not

18 covered by your decision. If my client is mentioned during the

19 cross-examination or if something of interest to my client is mentioned, I

20 should like to have your permission to ask additional questions of that

21 witness.

22 JUDGE RODRIGUES: [Interpretation] I know that Mr. O'Sullivan has

23 something to say, and after that I have a comment to make too.

24 Mr. O'Sullivan.

25 MR. O'SULLIVAN: I wanted to make one point in light of the

Page 6828

1 hypothetical Judge Wald put to the Prosecutor.

2 In fairness to the Prosecutor, she was not in this case during the

3 Prosecution case. But it seems to me that the answer to your hypothetical

4 question has, in fact, been covered throughout this trial, and that is

5 this: I'll be concrete. A Kvocka witness doesn't mention Kos. We are

6 the first to cross-examine; we have no questions. But if, during the

7 cross-examination of the other defendants or the Prosecution or Judges'

8 questions, an issue arises involving Kos, I think Kos can then apply to

9 cross-examine. As an exercise of your discretion, you can grant that and

10 you have during the Prosecution case.

11 JUDGE WALD: I was trying to pose that to Ms. Somers to get her

12 reaction to that. But that's certainly left open under the order. It

13 isn't forbidden to be done. It isn't specifically covered by the order.

14 JUDGE RODRIGUES: [Interpretation] I was going to intervene

15 precisely to recall what Mr. O'Sullivan has recalled. I think that we

16 have had experiences here even after Judges' questions. Judges mentioned

17 matters that were not touched upon in the course of the examination that

18 affected one of the defendants, and then we resume the discussion.

19 So I think all of us, and this is something that we must all bear

20 in mind as a principle, I think that if we bear in mind the question of

21 equality and the adversarial nature of the proceedings, they are basic and

22 we must have that in mind. But, of course, there have to be limits

23 because, Ms. Somers, there must be a limit and the limit is provided for

24 in the Rule.

25 For practical things, it is a good idea to remind you that the

Page 6829

1 Chamber did establish this principle that the cross-examination must not

2 exceed in time the examination-in-chief. We have to have limits,

3 otherwise, there's no progress. So this is the line that we have,

4 otherwise, the Defence case can again be turned into a Prosecution case,

5 and there would be no sense in that, in my opinion. So I am saying that

6 this must be a principle. There must be good reasons for overstepping

7 that line, and bear that in mind, please, for next Friday.

8 Next Friday, and I'm already replying to another question put to

9 me, in addition to everything that we have indicated as our working

10 agenda, we will refer to a certain number of practical issues regarding

11 principles applied during the Prosecution case which will also apply

12 during the Defence case.

13 The decision of the Chamber regarding the time for cross-examining

14 the accused Mr. Kvocka and Mr. Radic, as you know, we have discussed the

15 matter. We understand that the Prosecutor thought that they would do it

16 at the end of the Defence case; we understand that that would be at the

17 end of the Defence case of the accused concerned. So the Chamber

18 establishes that the cross-examination of the accused Radic and Kvocka

19 will be done at the end of the Defence case, which means -- this is very

20 important for Mr. Krstan Simic and the question he asked, that is, whether

21 he should call witnesses or not for the 22nd.

22 There's another minor practical issue, but perhaps we can come

23 back to it next Friday - otherwise, we'll have to have a break and come

24 back again - and that is to see whether the Defence counsel will have

25 opening statements or not, I think it is Rule 44, and roughly how much

Page 6830

1 time they will need. This may be interesting from the standpoint of

2 organisation of our work.

3 I think we have covered all the issues that we needed to cover. I

4 reiterate my request for the two parties to consult one another. We will

5 be back here next Friday to see whether there are any agreements which the

6 Chamber can accept or whether we need to make decisions. I think perhaps

7 the working hours will be the same as today; that is, we will start at

8 10.00, I think that's a good idea, and with the same sort of timetable as

9 today. If necessary, we will go on until 5.30; if not, we will finish

10 earlier for the weekend.

11 So we've come to the point when I can wish you a pleasant weekend

12 and success in your work in preparation for the continuation of the

13 proceedings.

14 I see that Madam Registrar has something to tell us. Please go

15 ahead.

16 THE REGISTRAR: It appears that there is a Status Conference --

17 not a Status Conference but a hearing in the Simic case on that same day.

18 JUDGE RODRIGUES: [Interpretation] But there are three courtrooms.

19 THE REGISTRAR: No, I understand that. But to use this courtroom,

20 I would have to rearrange. To use this courtroom, to have everyone

21 present, I would have to --

22 JUDGE RODRIGUES: [Interpretation] Madam Registrar, as far as I'm

23 concerned, we can meet in this courtroom or in Courtroom I. It doesn't

24 matter. No problem.

25 THE REGISTRAR: Okay.

Page 6831

1 JUDGE RODRIGUES: [Interpretation] You do what you have to do and

2 we will come to the place you tell us where we should be, whether it is

3 this courtroom or the other one.

4 Have a nice weekend, everyone. Thank you.

5 --- Whereupon the Pre-Defence Conference adjourned

6 at 4.08 p.m.

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