Tribunal Criminal Tribunal for the Former Yugoslavia

Page 6832

1 Friday, 19 January 2001

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 10.01 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. You may be seated. And also good morning to

9 members of the registrar.

10 Ms. Susan Somers, may we have the appearances, please? I see that

11 you are the same, but I see some changes in Defence counsel.

12 MS. SOMERS: Your Honours, Susan Somers for the Prosecution. Also

13 on our team is Mr. Kapila Waidyaratne, Ms. Denise Gustin, and Mr. Daniel

14 Saxon. Thank you.

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

16 counsel, please. Mr. Krstan Simic.

17 MR. K. SIMIC: [Interpretation] Good morning, Your Honours. My

18 name is Krstan Simic. I'm representing Kvocka. Mr. Lukic today is absent

19 because he is interviewing witnesses.

20 JUDGE RODRIGUES: [Interpretation] He's not here.

21 MR. K. SIMIC: [Interpretation] No, he's not here.

22 JUDGE RODRIGUES: [Interpretation] Very well. Mr. Nikolic,

23 please.

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

25 Defence counsel for the accused Kos consists of Mr. Eugene O'Sullivan,

Page 6833

1 Mr. Zarko Nikolic, myself, and also we have Ms. Ristislava Mirkovic, who

2 is here to assist communication between me and Mr. O'Sullivan, and we have

3 permission of the registry for this.

4 JUDGE RODRIGUES: [Interpretation] Very well. I don't see

5 Mr. Fila. Mr. Jovanovic only appears to be present.

6 MR. JOVANOVIC: [Interpretation] Good morning, Your Honours.

7 Exceptionally today, Zoran Jovanovic will be representing the accused

8 Mladjo Radic and Mr. Fila will be arriving tomorrow.

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

10 Mr. Stojanovic.

11 MR. STOJANOVIC: [Interpretation] Your Honours, good morning. With

12 me is my legal assistant, Ms. Mitrovic. And co-counsel, Miodrag Deretic

13 is working with witnesses in Prijedor, but he will be joining us on

14 Monday. Thank you.

15 JUDGE RODRIGUES: [Interpretation] Mr. Jovanovic -- no, sorry.

16 Mr. Jovan Simic.

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

18 Myself, Jovan Simic, is representing Mr. Prcac. My co-counsel will be

19 joining us during this week. Mr. Masic will be joining us later this

20 week.

21 JUDGE RODRIGUES: [Interpretation] Very well. Thank you all. We

22 are here today to continue our work in preparation of the Defence case.

23 At the last Status Conference we went through the items which the Defence

24 counsel had to raise. We had a discussion with the Prosecution. The

25 Chamber gave certain instructions to see whether it would be possible to

Page 6834

1 reconsider and review our organisation of work and the presentation of

2 Defence evidence. And the Chamber now suggests that we take stock of the

3 situation on each point. So if we come to an agreement on certain points,

4 that would be fine, and we will also register those we do not agree on.

5 So I propose to give the floor to each Defence counsel, who is going to

6 brief us on each point that was raised at the last Status Conference to

7 see how we stand; after that we will hear the position of the Prosecution

8 to confirm or deny whether agreement has been reached; and after that the

9 Chamber will make its rulings.

10 So, I shall now give the floor to Mr. Krstan Simic for him to

11 brief us on the progress made on all these matters. Those questions were,

12 I think, protection of witnesses, and the point was that we needed to

13 specify each witness and each protective measure that we need so that we

14 can make a decision. Also, there was the question of calling Witness AK,

15 then also questions connected to the admission of exhibits. Those are the

16 points that I remember. Maybe you have others.

17 But in any event, I give you the floor, Mr. Krstan Simic.

18 MR. K. SIMIC: [Interpretation] Thank you, Your Honours. Those are

19 precisely the questions that we raised, and I think that we're making good

20 progress. A list of witnesses has been submitted. We intend to attach

21 the timetable of their arrivals and appearances. If any corrections, they

22 will be reduced to a minimum, and we expect the arrival of the first seven

23 witnesses today.

24 Our assessment is that we need two witnesses per day, and since we

25 will be working from the 22nd till the 25th, we feel that we will manage

Page 6835

1 to fit that in. Also, we need to plan for the opening statements, and we

2 have done our best to make sure that people don't spend too much waiting

3 here and that we will, in the time we have at our disposal, manage to

4 cover these witnesses.

5 Then comes the question of Witness AK. We did not manage to come

6 to an agreement with the Prosecution, and I called for fair play. At one

7 point when Amir Zakic was discussed, I accepted exceptional circumstances

8 and agreed with the Prosecution that they may use him for proving guilt.

9 Unfortunately, we have not come to an agreement on this point, and we

10 expect the Trial Chamber to make a ruling.

11 In the interests of justice, it would be useful for AK to appear.

12 He will not spend long in the courtroom, he just needs to explain certain

13 details linked to his statement which we did not question him about, but

14 his statement had been announced as an exhibit. And as a result, we were

15 misled. We thought that statement would be admitted into evidence, and we

16 thought that Your Honours would be able to take them into account in the

17 decision-making process.

18 We have also adjusted affidavits to the rules that were in force

19 at the time. We had no depositions, and we also had no request for

20 videolink testimony. Unless the Trial Chamber were to decide that

21 individual witnesses from the affidavit lists need to be cross-examined,

22 then for the sake of economy and for other reasons, we would resort to

23 videolink as this would be far more favourable for the Trial Chamber than

24 bringing those people here.

25 THE INTERPRETER: Could counsel slow down, please.

Page 6836

1 The interpreters are not able to follow the speed. Could counsel

2 repeat his last sentence, please.

3 JUDGE RODRIGUES: [Interpretation] Have you finished? The French

4 interpreter tells me that the English interpreters are asking you to

5 repeat the last sentence because they were not able to follow you.

6 MR. K. SIMIC: [Interpretation] I have analysed my list of

7 affidavits, and they appear to be absolutely acceptable according to the

8 new Rule 92 bis, so this should not cause any problems, and we expect that

9 question to be raised during the discussion today, later on at this

10 hearing.

11 JUDGE RODRIGUES: [Interpretation] There may be some problems here

12 because you mentioned the 22nd to the 25th, but I think we need to say

13 from the 22nd to the 26th because the week is 22 to the 26th. That is the

14 whole week.

15 MR. K. SIMIC: [Interpretation] Your Honours, from the beginning of

16 the plan we have the dates 22nd to the 25th, and we were confused by this

17 change because all the timetables that all Defence counsel have, have the

18 time period for hearings indicated as 22 to the 25th. So four days now,

19 from the 5th to the 9th, another four, plus five, makes it a total of 13

20 days. Those were our calculations.

21 JUDGE RODRIGUES: [Interpretation] There may indeed be some

22 confusion because from the beginning the Chamber had intended to sit for

23 the whole week. There's no reason why we should not sit on Friday, but if

24 this causes a problem in terms of organisation, fine. However, if there

25 is a possibility to sit on Friday, it is always important to take

Page 6837

1 advantage of the time available.

2 I don't know where this confusion came from because from the

3 beginning we said that we would be working all week. When we talk about a

4 week, it means Monday through Friday. But if that is a problem for you,

5 Mr. Krstan Simic, we will accept 22nd till the 25th, but it is a shame. I

6 don't know who is at fault and where the source of the problem lies, but

7 never mind.

8 So I'll give the floor now to Ms. Susan Somers for her comments,

9 if she has any reaction to what Mr. Krstan Simic has just said.

10 MS. SOMERS: Your Honours, may I first indicate that it is no

11 problem for the Prosecution to work on the 26th. We welcome the extra day

12 if it works out for the Defence.

13 On the issue of the affidavit, under the -- the former B known as

14 affidavit for Mr. Kvocka, in the 65 ter submission of Mr. Simic, there was

15 no summary as required for the affidavit witnesses. There may perhaps

16 have been some confusion, although it appears -- there's no doubt in our

17 mind that those are witness summaries, albeit proposed in non-live form,

18 and must be included in the 65 ter submission. They are not, and we do

19 not know the content of the affidavits. We would otherwise have tried to

20 make the same assessment about cross-examination or not had we had them.

21 So we would ask, and we did ask yesterday at a conference which

22 Mr. Simic and everyone attended, to try to get to us immediately the

23 affidavits so that we can indicate to the Chamber and to Defence counsel

24 what we think would be, in our judgement, appropriate for

25 cross-examination, or just let it go in.

Page 6838

1 I also wanted to point out on behalf of my colleagues as well who

2 asked me to raise this, there was a bilateral concern about our sitting on

3 the cusp of a change in the rules, and we will ask, of course, for

4 guidance from the Court as to whether the spirit of 94 ter will persist,

5 or if we will go into immediately the strict terms of 92 bis.

6 On the issue --

7 JUDGE WALD: Do you have a position on that, Ms. Somers?

8 MS. SOMERS: Well, Your Honour, looking at Rule 6 and the

9 position -- the language that is insistent on no prejudice being worked,

10 in effect, because the Defence has prepared its case based on the old

11 rule, I think if the Court were to consider that those guidelines were --

12 at least, those affidavits which were dated prior to, if we had to have a

13 cutoff point, we would not object. I think it is not critical.

14 JUDGE WALD: You would not object to what, to their coming in

15 under the old rule?

16 MS. SOMERS: Well, in terms of -- we have the same rights to

17 object and say that, no, it's not appropriate and we want to cross; but in

18 terms of any matters of form or -- of course, under the old rule, it was

19 very strict by corroborating --

20 JUDGE WALD: Right, right.

21 MS. SOMERS: -- whereas it seems to be, depending on how one reads

22 it, and there's been not much interpretation in the three days or

23 whatever --

24 JUDGE WALD: It just came into being today.

25 MS. SOMERS: Yes, I know, Your Honour, and therefore we're not

Page 6839

1 sure how it will be interpreted. But we leave it in the Chamber's hands.

2 We want fairness on this to be the guidance since we all have worked --

3 JUDGE WALD: But want to I point out to you that Rule 6(D) is, "An

4 amendment shall enter into force in seven days, but shall not operate to

5 prejudice the rights of the accused." It doesn't say anything about

6 Prosecution.

7 MS. SOMERS: I'm painfully aware --

8 JUDGE WALD: I understand you may have a different interpretation,

9 but I only point out it would be the -- okay.

10 MS. SOMERS: In fact, Your Honour, we were speaking exactly of its

11 provisions. We had discussed this yesterday, and there was voiced a great

12 deal of concern, and we wanted the Chamber to be aware of this right off

13 the bat. So we are in the Chamber's hands, again, as long as -- even if

14 it's not voiced in the rule, I know this Chamber has always been cognizant

15 of the fairness to the Prosecution [Realtime transcript read in error

16 "fairness as well"] as well.

17 JUDGE WALD: Okay.

18 MS. SOMERS: On the issue -- excuse me one second.

19 JUDGE RIAD: Excuse me. There is a word missing. You said

20 "cognizant of the fairness to the Prosecution."

21 MS. SOMERS: Always. It's always been fair, so --

22 JUDGE RIAD: Because here it is missing. They don't say it to the

23 Prosecution, so let them add it to prove that we are fair to the

24 Prosecution.

25 MS. SOMERS: Absolutely. And I apologise. I'm told I'm speaking

Page 6840

1 too fast, and I will slow down. Thank you, Your Honour, for catching

2 that.

3 On the issue of Witness AK, a couple of points, if I may. One is

4 that although the Prosecution -- AK was designated Prosecution witness,

5 and I don't believe that that designation leaves the witness, particularly

6 in light of the fact that as a -- there is a standing agreement or there

7 is a standing protective order that indicates that contact with

8 Prosecution witnesses - and it does not limit the phase of the

9 trial - should be at least done with notice to or through the

10 Prosecution. This was not done. We were unaware of contact by the

11 Defence with AK, which causes us some concern.

12 Secondly, I see no fair play issue. The Zjakic situation was a

13 witness who would have come but for the physical condition. And I've read

14 the transcripts, Your Honour. It appears the Bench was fully cognizant of

15 the situation and assisted us in allowing this witness nonetheless to give

16 evidence for the case in chief, albeit at the time of rebuttal, but not

17 part of the rebuttal case. This has been done in other Chambers. It is a

18 practice that I think is well accepted. That is a witness who has never

19 shown.

20 AK is a witness who was here, and having reviewed the transcript,

21 it appears, from the representations by my counsel opposite, that the

22 areas of inquiry for AK at the time of being called for the Defence would

23 be the same areas that would have been very much the proper subject of

24 cross. It was a fairly broad direct and in fact would have cried out for

25 such questions. And I think it becomes a matter for the Court to

Page 6841

1 determine whether we want to go down the road of calling back witnesses

2 when the Rule, Rule 90, obligates the entire case to be put at the time.

3 The witness may or may not be willing. I don't think that's the principal

4 issue here. I think it's an issue of what the Rules require and whether

5 or not there's compliance with the Rules.

6 On the -- I think as to this particular accused, that's pretty

7 much what we discussed. We -- I would like to represent to the Chamber

8 that all of us, all counsel who were present yesterday, agreed that as

9 between depositions, which they know we are not terribly in favour of, and

10 videolink, if there is going to be some action in Banja Luka, that

11 videolink is okay with all parties. And as we will progress through this

12 hearing, the Chamber will realise that we have, at least as to one

13 accused, we've examined everything that we have, but we've cut back on

14 objections on three or four, so it would limit -- and of course, we're

15 only asking for cross on certain affidavits, and we're trying to cut down

16 the amount of time that the Chamber would actually have to be engaged with

17 this so that we can persuade the Chamber that it would be a preferable

18 method to the deposition method. But again there is agreement. There's

19 no objection by any of counsel to the use of videolink.

20 I do want to indicate to the Chamber that I have made inquiry of

21 our office, and I know that this is a registry function, but just to make

22 sure that there was no particular procedural problem for scheduling and

23 that the Banja Luka facility of -- is available for such -- is available,

24 is up and running for such type of conference, and the room is quite

25 appropriate, from my observation.

Page 6842

1 I think for this particular point -- I'll just check with my

2 colleague, if I may.

3 [Prosecution counsel confer]

4 MS. SOMERS: Thank you, Your Honours.

5 JUDGE RODRIGUES: [Interpretation] Mr. Krstan Simic, have you any

6 additional questions to raise?

7 MR. K. SIMIC: [Interpretation] I shall be very brief. I have two

8 comments to make. There is no dispute over the fact that I have contacted

9 Witness AK, because I understood the instructions that one could not

10 contact the witness until the end of his testimony, because after all, the

11 trial can go on for five or six years and this would put us in an absurd

12 position, and that would border on human rights.

13 Another far more important question is the following: In this

14 case the Prosecution has appropriated certain witnesses, and your Chamber,

15 on one occasion, said that witnesses were witnesses of the truth and

16 justice. Judge Hunt also repeated the other day that these were witnesses

17 of events and not the property of the Prosecution. And I really think

18 that in a fair trial, there should be no obstacle to counsel contacting

19 Prosecution witnesses if they so wish, because this is in the interest of

20 the efficiency of the proceedings and in the interest of justice.

21 I consider this to be an exception, and surely this will not be

22 repeated often. This is the first time that we are asking for anything

23 like this. The witness is willing to come. The Defence feel that there

24 is reason for him to come. This witness testified in an impressive manner

25 in Court. Why not give him another chance to contribute to justice?

Page 6843

1 The question of affidavits, again we differed. In my view, in

2 accordance with Rule 65, the Defence is not obliged to produce summaries

3 of affidavits. This is not provided for. These are special statements

4 that the Defence may use in support or to corroborate the statement of

5 certain witnesses. All the affidavits have been prepared. You have two

6 available today that have been disclosed seven days prior to the calling

7 of the witness, in accordance with the Rules, and the Prosecution has

8 already received them, Rule 94 ter. And then within seven days we will

9 address the counsel -- the Chamber to see what should be done next. We

10 feel there is no need to provide affidavits earlier on unless we are given

11 explicit orders. Therefore, all the affidavits will be translated on

12 Monday and they will be tendered in accordance with Rule 94 ter if we

13 decide to apply that Rule in the course of these proceedings. If the

14 Trial Chamber feels it is more useful to expedite proceedings, I can hand

15 them over to Ms. Somers as soon as they are translated. Thank you.

16 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Krstan

17 Simic. Thank you very much.

18 Ms. Susan Somers.

19 MS. SOMERS: Just one or two points, Your Honour. One is that

20 apparently other counsel have understood that it is necessary still to go

21 through the Prosecution, as we appreciate Mr. Jovan Simic asked us to

22 contact four witnesses at the last session, which we did. We've reported

23 back to these witnesses -- to Mr. Simic that three or four have indicated

24 they are not willing and one is. I think that there's no basis for the

25 position that Mr. Krstan Simic is taking. And further, my recollection of

Page 6844

1 the transcript is that certain witnesses, AG and AH, were described very

2 firmly as Kvocka witnesses. So there is some -- I think it's going to be

3 a point of concern. We ask only that we be given a chance to approach the

4 witness first and that we know that the witness has been approached.

5 After all, it is very possible that a witness who was a Prosecution

6 witness may come back on rebuttal. And in fact, the designation stays as

7 do protections. They are not lifted. They persist.

8 The point made about the affidavits -- and I'll try not to beat a

9 dead horse. However, if this -- if the position that Mr. Simic is taking

10 were correct, then there could be an unlimited constant addition of new

11 witnesses, and that's not the purpose of 65 ter. It is to give, to the

12 best degree possible at the time of the commencement of trial, a

13 definitive witness list. It doesn't matter the form. It just says in 65

14 ter a list of witnesses, and affidavit witnesses are a form. And

15 therefore we would ask the Chamber to simply look at the plain language of

16 the Rule, in the same way that 94 bis experts we don't have to provide at

17 the time of the 65 ter the actual statement. That is governed by another

18 Rule. However, we must inform of the use, and it's consistent with the

19 use of 94 bis that anything for affidavits would also be included so that

20 we would at least be on notice of the nature of the testimony, and I think

21 it would help us speed up some of the inquiries the Chamber would like us

22 to make. Thank you.

23 JUDGE WALD: I've just got a question. I want to make sure I

24 understand what you think is necessary under the old 94 ter. If the party

25 submits to you an affidavit in advance -- it doesn't say how much in

Page 6845

1 advance; it just says filed prior to the giving of testimony by the

2 witness. Okay. So they give you the affidavit and they say, "This

3 affidavit is submitted in corroboration of Witness X, who is going to

4 testify next Monday," and the points on which it's allegedly corroborating

5 are A, B, and C, why do you have to have anything other than that under

6 the Rule?

7 MS. SOMERS: We don't have that, actually. We don't have a

8 designation of --

9 JUDGE WALD: What don't you have? You have the affidavits --

10 MS. SOMERS: From this particular accused, no, Your Honour we

11 don't.

12 JUDGE WALD: But you will -- he has to give them to you in advance

13 of the testimony of the live witness that they're supposed to be connected

14 with.

15 MS. SOMERS: The practice, as I have seen it in other Chambers, is

16 that they are listed as witnesses. The more specific information is

17 given, the actual affidavit is given up front so that we can make an

18 objection and that we can ask, if appropriate --

19 JUDGE WALD: It has to be given under Rule 94 ter. It has

20 to -- it doesn't say how long, but it says it has to be given in advance

21 of the testimony. That might be up to the Chambers to say how long.

22 I --

23 MS. SOMERS: I think the appellate decision, Your Honour -- excuse

24 me if I cut you off on that last word. The appellate decision, I believe,

25 from Kordic discusses the timing on affidavits, because the exclusion that

Page 6846

1 resulted there was a failure --

2 JUDGE WALD: But that was after.

3 MS. SOMERS: It was. In reading the Rules, it appears, though,

4 that we should at least have enough of a summary at the time of the 65 ter

5 submission to know the guts of what the affidavit witness will say. The

6 actual affidavit should be presented so that we can --

7 JUDGE WALD: So that you have it before the live witness to whom

8 it's connected.

9 MS. SOMERS: Exactly. Exactly.

10 JUDGE WALD: But I gather your complaint at this stage is not that

11 you won't get the affidavit before the live witness appears - you would

12 have to do that or it would be in violation of the Rule completely - but

13 that you don't get a summary of what's in the affidavit.

14 MS. SOMERS: Correct. Under 65 ter, because they are in fact

15 witnesses again, as a 94 bis witness is a witness to be listed --

16 JUDGE WALD: Has that about been the practice in other Chambers?

17 We haven't had it come up here.

18 MS. SOMERS: It has in Kordic, Your Honour. All the

19 witnesses -- our experts were listed with just a summary, minor summary,

20 and then of course within the provisions of the Rule, we filed timely. I

21 cannot address any other Chamber, but certainly that was a Chamber of very

22 active litigation, so ...

23 JUDGE WALD: Well, I have your interpretation, although I note 65

24 ter G is a list of witnesses the Defence intends to call. I don't know.

25 I guess that could be interpreted either way.

Page 6847

1 MS. SOMERS: I think so. The practice has been, at least as we

2 have done it, to consider them witnesses, and I think that that's a fair

3 interpretation which puts everyone on notice. It speeds things up. Thank

4 you.

5 THE INTERPRETER: Microphone, please, Your Honour.

6 JUDGE RODRIGUES: [Interpretation] Perhaps to make an observation,

7 one must bear in mind that when you speak the same -- as you speak the

8 same language, you must bear in mind that we are working through

9 interpreters and I think the French interpreter was struggling in

10 following you. I think that we now have raised some issues that the

11 Chamber will be deliberating. We are not going to give you a ruling now,

12 but we are going to take into consideration everything that has been said

13 so far. I should nonetheless like to make a comment with respect to what

14 Mr. Krstan Simic was saying with respect to the witnesses and their

15 relationship to the Tribunal. I continue to feel, but maybe that is my

16 own personal opinion, perhaps I'm not speaking in the name of the Chamber,

17 the witnesses are presented by the parties. But they are witnesses of

18 justice, and I don't think that any of the party can appropriate a

19 witness, in my view. And once the witness has testified in court, his

20 testimony, if I can say so and put this in inverted commas, "property"; he

21 is the property of justice. His testimony is not the property of

22 anybody. Testimony is given under oath here in the courtroom. Perhaps

23 this is a deception which stems from our different cultures. We have

24 different systems, different cultures, different ways of conceiving

25 witnesses. I personally, as I have said, and I would like to stress, this

Page 6848

1 it is my own personal opinion, I believe that witnesses do not belong to

2 anybody. They belong to themselves, and therefore are always in the

3 function of justice. But we shall be taking into account everything that

4 has been said on these issues, and let us move on now to Mr. Nikolic, that

5 is to say, the Kos Defence team. I see that Mr. O'Sullivan is on his

6 feet.

7 JUDGE RIAD: I'd like to concur with what the president has said.

8 It's not his personal opinion, and I think it is the Bench's, with the

9 permission of Judge Wald that we are all here, without distinction between

10 Prosecution, Defence, and the Bench. We are here for international

11 justice. So the case is not the case of the Prosecution or the Defence.

12 It is our own mission, all of us, to contribute to establish justice with

13 regard to war crimes and human rights. Thank you.

14 JUDGE RODRIGUES: [Interpretation] Thank you to Judge Riad, and I

15 give the floor to Mr. O'Sullivan. I think the issues that we have with

16 respect to the Kos trial, if I remember correctly, were as follows --

17 would you like to remind me, please, Mr. O'Sullivan.

18 MR. O'SULLIVAN: Yes, Your Honour. Thank you and good morning.

19 There are a few matters I'd like to raise in light of our last conference

20 and also in light of the meeting we had yesterday with the Prosecution.

21 One matter that is still open is the timing of the opening

22 statements by the Defence. Kos's position is that we should make our

23 opening statements prior to our Defence beginning.

24 As for matters that arose yesterday in the meeting with the

25 Prosecution, there are four points. First, the Prosecution is a gracious

Page 6849

1 host and they served good coffee, and we thank them for that. And the

2 second point doesn't directly affect Kos because Kos has no affidavits,

3 but it does affect the conduct of the case, and I think the parties will

4 need guidance from the Chamber on whether or not we follow 94 -- or 92 bis

5 or 94 ter. And our position is that will affect the latter two points,

6 and they are, first - and I believe I'm giving the correct position agreed

7 upon by all the parties - is that our preference is videolink over

8 deposition from Banja Luka. And in the event of cross-examination of

9 affidavits, that would also be done by videolink from Banja Luka.

10 And the final point on videolink is that we may in fact require

11 five videolinks, videolinks at five different times, one per case, one for

12 each defendant. It may arise that through a combination of deposition

13 evidence and cross-examination of affidavits, there may in fact be a need

14 to have that occur during each of the five Defence cases. I believe that

15 reflects the agreement that the parties wish to present to the Chamber.

16 And the third point which is of a concern to us in the management

17 of this case arises in light of what appears to be a break in the Krstic

18 case and the timing and scheduling of our trial. And the important point

19 there for the Defence is to ensure that if we are going to work more than

20 previously foreseen, that there be a break between the cases nonetheless

21 so that there can be a week or so or a reasonable period for the upcoming

22 case, that is, that counsel can make sure everything is in place to run

23 that defendant's case smoothly.

24 So those are the points, Your Honour, which Kos wishes to discuss

25 this morning, and we request Your Honours' guidance and determination.

Page 6850

1 JUDGE WALD: Do you have a position, Mr. O'Sullivan, or one

2 preferably on behalf of all counsel, as to whether or not you think we

3 should follow 94 ter hence forth or 92 bis, especially in light of the

4 line I quoted from Rule 6 that talks about especially worrying about

5 prejudice to the accused?

6 MR. O'SULLIVAN: Well, Your Honour, I don't think I should speak

7 to that because it's -- since we don't have affidavits, I haven't

8 addressed my mind to the impact of how that might affect the other

9 parties.

10 JUDGE WALD: All right.

11 JUDGE RODRIGUES: [Interpretation] Ms. Susan Somers.

12 MS. SOMERS: Your Honour, I think there's really nothing that we

13 can add. Mr. O'Sullivan and the Prosecution did speak of this, and we

14 thank him for representing the position.

15 JUDGE RODRIGUES: [Interpretation] Very well, thank you.

16 Mr. Jovanovic is next.

17 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. At

18 yesterday's meeting with the Prosecution, the Defence of the accused

19 Mladjo Radic handed over to the Prosecution a set of expert findings and

20 witness statements and affidavits, signed statements; and we mentioned

21 which of those affidavits or witness statements are being translated

22 currently, and this was done following a previous agreement; and with our

23 desire to hear from the Prosecution, in which cases they would be calling

24 for cross-examination.

25 It is the position of the Defence of Mr. Mladjo Radic as regards

Page 6851

1 expert findings that we hand in a written report, and that that should

2 take the place of the presentation in chief. After the Prosecution has

3 studied those findings, I can only suppose that they will say in which

4 cases they will be calling for a cross-examination.

5 And the same applies to witnesses and the testimonies that were

6 taken following Rule 94 ter, on the basis of Rule 94 ter: It is the

7 position of the Defence of the accused Radic is that if possible and if

8 the Chamber agrees, that we continue working along the lines of Rule 94

9 ter.

10 The Prosecution also intimated, in view of the witnesses from whom

11 statements have been taken in that way, that they were witnesses which the

12 Prosecution will certainly insist upon having a cross-examination. If the

13 Chamber agrees to this request by the Prosecution, the Radic Defence feels

14 that this could be done by means of videolink. So we have reached full

15 agreement on that point.

16 If the Trial Chamber decides to establish a videolink connection

17 for the examination of witnesses whose statements were taken on the basis

18 of Rule 94 ter, the Radic Defence would like to propose for practical

19 purposes that the -- that most of the witnesses that have been put forward

20 for testimony before the Trial Chamber, that they, too, be heard via

21 videolink in Banja Luka. That would mean that out of the 26 witnesses, of

22 the 26 witnesses mentioned in the motion regarding 94 ter, that is to say,

23 the majority of the witnesses would be heard in Banja Luka. And the

24 Prosecution, that is to say, Ms. Somers, mentioned that technical

25 facilities are being prepared and that there is a location where this

Page 6852

1 could be done. The facilities exist. And so most of the witnesses would

2 be heard there.

3 If we follow Rule 92 bis, and in view of the contents of the

4 statements, witness statements, that is to say, the affidavits, then those

5 witnesses would be heard by means of videolink. Both the

6 examination-in-chief and the cross-examination would be held by

7 videolink.

8 Of course, this will affect time, the time that has been asked

9 for, for the presentation of evidence of the accused Radic. And if

10 this -- if we were to have most of the proceedings conducted by videolink,

11 the presentation of evidence and testimony of witnesses before the

12 Chamber, the Radic Defence case would need two days -- it would need two

13 weeks for the videolink, and if the Prosecution so requires, then time for

14 the cross-examination as well.

15 The second issue that we discussed last time was the question of

16 medical documentation, but I think that we could discuss that matter in a

17 closed session, so we can perhaps leave that issue to later on. We need

18 not go into it at this point. I should just like to mention is that we

19 have the same expert findings, the affidavits and the witness statements

20 are ready for trial, and I shall be handing them in to the registrar in

21 the course of the day.

22 Of course, we also know that before the trial, we should send in

23 those statements. Again, this was just by way of informing the

24 Prosecution and the Court, and our wish is to hear the position of the

25 Prosecution with respect to the affidavits and where they seek

Page 6853

1 cross-examination as well. Thank you.

2 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Jovanovic.

3 Ms. Susan Somers, there is a matter that we shall be discussing

4 perhaps later on in private session, but for the moment, would you like to

5 respond to the issues raised by Mr. Jovanovic?

6 MS. SOMERS: Just one point I need to make - excuse me -

7 absolutely clear is that the videolink has not yet been prepared. That is

8 a registry function, and so as long as counsel understands that we've

9 simply made the inquiry about the appropriateness of the facility, and we

10 were informed that it was. And once the Chamber authorises the manner,

11 then the registry would have to do what it has to do.

12 I think there really wasn't any other matter other than the

13 referral -- the reference to the private session, I think.

14 Oh, excuse me, may I just tell the Court one point. It is true we

15 were handed, and we do appreciate, a very thick volume of materials last

16 night which we are trying to wade through, and at the very earliest,

17 perhaps even -- if the Chamber might grant us time before the commencement

18 of testimony, we can announce some of the issues on acceptance or requests

19 for cross-examination of the affidavit issues. We'll try to do it over

20 the weekend.

21 JUDGE RODRIGUES: [Interpretation] Ms. Susan Somers, with respect

22 to the reports, expert reports, I have a question to ask you. You said

23 that in principle, you are going to object to the admission of these

24 reports, and if that is so, then you would like to cross-examine the

25 experts. Is it possible for you to respond in writing to those reports?

Page 6854

1 Can you respond to them in writing and so avoid calling back the experts?

2 MS. SOMERS: My --

3 JUDGE RODRIGUES: [Interpretation] I apologise, but let me just

4 tell you that in another case this is what we did, and I think the results

5 were good. A party was not in agreement with the findings of an expert

6 witness, and the other party found a counter-report, expert report.

7 So my question is, do you have the possibility of finding a

8 response in writing, of finding an expert to come up with a written

9 response to the first expert report?

10 MS. SOMERS: Your Honours, I think much of it would depend on the

11 subject matter of the expert report. I am very willing to explore

12 possible remedy or possible resolution on certain types of experts. There

13 may be some matters, and for example, I can think of one proposed report,

14 we've certainly not seen it, but the summary suggests that we would

15 probably file a motion to exclude it altogether on relevance. So if the

16 Chamber agrees, there may be one report less with which to deal.

17 There is some subject matter that I think is -- may not lend

18 itself well to that type of response, but where appropriate, if the

19 Chamber will allow me, once I see the report, I would certainly consider

20 that option, and I would -- the sooner I have the report, the sooner I can

21 get a counter-expert, as it were, or an expert to assist us in our

22 position.

23 JUDGE RODRIGUES: [Interpretation] At all events, Ms. Somers, as

24 you know, there is at least one report presented by the Defence as a

25 response to another report already tendered by the Defence, by the

Page 6855

1 Prosecution I think to the registry. So as regards the other expert

2 reports, perhaps the Prosecution can respond in like manner. But I do

3 understand your position: After having read the reports, you will be able

4 to state your position. So I thank you for your attention.

5 Let us now move on to the Defence counsel again, and it is the

6 Defence team of Mr. Zigic, counsel Stojanovic has the floor.

7 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour. I shall

8 be brief and just speak about affidavits. So far we have not had a single

9 affidavit, but we have accepted your proposals that this would be a good

10 way of presenting certain evidence and ones that we were to have presented

11 by deposition. In the meantime, the rules have been amended, and I think

12 the question is rather complicated, that is to say, how far we could apply

13 Rule 6 (d) to our particular case.

14 For the moment let me say we are studying the new Rule, that is 92

15 bis, Rule 92 bis, and we feel that Rule 92 bis provides a rather different

16 framework with respect to affidavits, and we could try to do something

17 with respect to that Rule and present something to the Court along the

18 lines of that Rule. But at any rate, we do agree that a lot can be done

19 through videolink, so videolink as a mode, as a procedure, is acceptable

20 to us.

21 Another problem that we highlighted was the problem of

22 confidential contributions, and I don't think that at yesterday's meeting

23 we were able to come to an agreement with our colleagues from the

24 Prosecution on that issue. So far in the course of preparing our Defence

25 case, we interviewed superficially some potential witnesses, bearing in

Page 6856

1 mind the confidentiality.

2 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic, I see Ms. Somers

3 on her feet.

4 MS. SOMERS: I apologise for the interruption to the bench and to

5 counsel. If this is the discussion that I believe it will become, it

6 would be appropriate for a brief private session, and I have what I think

7 might be some good news for Mr. Stojanovic and counsel. We met again as a

8 team afterward and tried to come to some solution that may be --

9 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic, perhaps you

10 could leave that matter regarding confidentiality to a private session,

11 and then we could take the two issues together, the issue raised by the

12 Radic Defence and your one. Do you agree, Mr. Stojanovic?

13 MR. STOJANOVIC: [Interpretation] I do agree, Your Honours.

14 Perhaps the next issue, however, would be conducive to a private session

15 as well. It is the use of Witness R's transcript, and he was a protected

16 witness.

17 JUDGE RODRIGUES: [Interpretation] Okay.

18 MR. STOJANOVIC: [Interpretation] And all that remains for me now

19 in open session to mention an incident which I have already told the

20 Prosecution about, but they suggested that I should put it to the Trial

21 Chamber. The day before yesterday in Belgrade a courier --

22 JUDGE RODRIGUES: [Interpretation] I see Ms. Somers, Madam Somers

23 on her feet again.

24 MS. SOMERS: My apologies again. I wanted to make it clear to the

25 Chamber that when this was raised to me, I suggested it perhaps be a

Page 6857

1 private session matter.

2 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic, do you agree to

3 that?

4 MR. STOJANOVIC: [Interpretation] Yes of course, Your Honour.

5 JUDGE RODRIGUES: [Interpretation] So you have completed everything

6 you wish to say in open session. Thank you.

7 We just have the question of affidavits and the new rule or sworn

8 statements. I don't know if Ms. Somers would like to add anything on that

9 point before we go into private session to discuss the remaining issues.

10 MR. K. SIMIC: [Interpretation] Your Honours.

11 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Krstan Simic.

12 MR. K. SIMIC: [Interpretation] I need to give an answer whether we

13 are with a new or old rule. I prefer sticking to 94 ter, Rule 94 ter. So

14 as not to come into a position where this issue should be raised again, I

15 think that Rule 6 implies that after the Prosecution concludes, we can

16 continue with the Rule on the basis of the previous Rule.

17 JUDGE RODRIGUES: [Interpretation] Very well. So Ms. Somers, her

18 response to some questions raised by Mr. Stojanovic. We have not yet

19 heard the position of the Prcac Defence team.

20 So, has Ms. Somers got anything to add to questions raised by the

21 Zigic Defence?

22 MS. SOMERS: No, Your Honours. They will all be reserved for the

23 private session. Thank you.

24 JUDGE RODRIGUES: [Interpretation] Very well. Mr. Jovan Simic,

25 what issues do you have to raise with respect to the Prcac Defence?

Page 6858

1 MR. J. SIMIC: [Interpretation] Thank you, Your Honour. Your

2 Honours, we don't have any major problems yet, and happily, we are dealing

3 with all the outstanding issues between ourselves and the Prosecution

4 outside the courtroom.

5 But the Prcac Defence would like to insist that the previous Rule

6 94 ter be applicable because otherwise, this would change the entire

7 concept of our Defence, and we would need additional time. You know that

8 time has been an issue right from the start. So that our Defence has been

9 conceived on the basis of affidavits, and if we were to go by the new

10 rules, this would be a considerable problem to us, especially as the 92

11 bis rule is quite different to what the previous 94 ter rule states.

12 And as we have Rule 6(D) as well, I think that we should proceed

13 along those lines. And yesterday at the meeting I think we had reached a

14 consensus with respect to -- that is to say, we aligned our views, the

15 Defence teams and the Prosecution, with respect to videolinks because then

16 we would be able to marry the two, and this would reduce the amount of

17 time needed and the costs incurred.

18 As far as all the other issues are concerned, I support

19 Mr. O'Sullivan. I do believe that pauses are needed between the different

20 Defence team presentations because, for example, in the course of a week,

21 one Defence team could complete its case and then the other to begin on

22 Thursday, for example. Logistically speaking, technically speaking, this

23 would be a problem, not because the Defence teams are not ready, but I

24 would ask the Trial Chamber to take this into consideration.

25 As far as the Prcac Defence is concerned we just have one more

Page 6859

1 issue. We have contacted the Prosecution with respect to having contact

2 with certain witnesses, and we're told by them that we could contact one

3 of the Prosecution witnesses. We can go ahead with that, and we shall do

4 so and inform you of that in due course. Thank you.

5 JUDGE RODRIGUES: [Interpretation] Mr. Jovan Simic, is there any

6 news with respect to a matter you raised, exhibits to be examined by the

7 Prosecutor in order to know whether the Prosecution is contesting their

8 authenticity or not? Do you remember the issue I mentioned?

9 MR. J. SIMIC: [Interpretation] The Prcac Defence has handed over

10 all the exhibits. There was a slight misunderstanding with respect to the

11 list of witnesses and list of witnesses who have given affidavits, but I

12 think we have put that misunderstanding right and it is now up to the

13 Prosecution, because we have supplied them with all the written evidence,

14 certifications and certificates, and so on. So the Defence has tendered

15 all this to the Prosecution before the deadline, and all that we have to

16 see now is what they think about it, and we are awaiting their response.

17 Thank you.

18 I should like to state that this Defence team is still undergoing

19 its investigations, and in keeping with Article 65 ter, I wrote in my

20 submission that we retain the right to send in some new exhibits,

21 evidence. It will not be great in bulk, nor will it refer to any crucial

22 issues, but we do reserve that right. Thank you.

23 JUDGE RIAD: Excuse me, Mr. Simic. With regard to what you said

24 that when a Defence team finishes its turn, do we need -- do you suggest

25 that we should have a pause of several days before the other one starts?

Page 6860

1 Is that what you meant?

2 MR. J. SIMIC: [Interpretation] Yes, Your Honour. I supported what

3 Mr. O'Sullivan was saying on the subject; that is to say, between the end

4 of the Defence case of one team and the start of the Defence case of

5 another team, several days' pause in between.

6 JUDGE RIAD: And in spite of the fact you said that the Defence

7 teams are ready? Is it because of the witnesses?

8 MR. J. SIMIC: [Interpretation] Because of organisation, technical

9 problems with respect to bringing in the witnesses. It is not a matter of

10 Defence itself, but logistical problems, technical problems in actually

11 bringing the witnesses to Court. Thank you.

12 JUDGE RIAD: But that will cause a great delay, you know. Already

13 each part -- each accused has two weeks, so the other knows, the other

14 team knows when to start, logistically speaking, or approximately. At

15 worst, the witness will have to wait for a day or two, and they do all the

16 time. Don't you think we are in need of time, to gain time, for the sake

17 of the accused too? That's my question. Thank you.

18 MR. J. SIMIC: [Interpretation] Your Honour, I quite agree that we

19 need to save on time, and I think that this Defence team has saved quite a

20 bit of time. But I think that the fact that we know that in April or the

21 beginning of May this Defence counsel needs to present its case, it

22 doesn't mean that we can prepare the witnesses in time. This involves a

23 great deal of organisation. People are away on business, are sick. We

24 cannot keep them waiting for 10 or 15 days somewhere and then tell them

25 that they should get on a plane and come here.

Page 6861

1 This is not just my position; it is the position of all Defence

2 counsel, as far as I understand. We will all have difficulties there. My

3 learned friend O'Sullivan mentioned this already and I just supported

4 him. Also colleague Krstan Simic mentioned this. He is the first, so he

5 will not be having that problem, but all the other Defence teams will.

6 So we do need two or three days to go to Banja Luka or Prijedor,

7 because even though we do have some investigators working on the ground,

8 any changes in the plan or timetable affect the witnesses, and it's

9 different when they communicate with the investigator or with the counsel

10 or co-counsel.

11 This is just my suggestion. I don't insist upon it. I just

12 agreed and supported the suggestion of Mr. O'Sullivan. I think that if we

13 organise ourselves well, we will save more time than if we act in the way

14 that the Prosecution has done sometimes so that witnesses had to wait

15 quite -- for some time. So I think this would be a better way to

16 proceed.

17 JUDGE RIAD: Thank you.

18 JUDGE RODRIGUES: [Interpretation] I'm going to give the floor to

19 Ms. Susan Somers, but after that I do wish to come back to this question

20 of organisation, bearing in mind the interests of the witnesses.

21 Ms. Susan Somers, you have the floor to respond to some matters

22 raised by the Prcac Defence.

23 MS. SOMERS: Thank you, Your Honours. Mr. Simic was extremely

24 helpful in providing us essentially with -- we thought they were

25 affidavit -- we thought what we were being provided with was the list of

Page 6862

1 affidavit witness. In fact, for every witness there was an affidavit. So

2 in the group of 14 with which we were provided, some are going to be live

3 testimony, as I understand it. However, having reviewed the list that

4 was -- the documents were which given to us, we were able to come up

5 with - and I hope this helps the Chamber and the Defence - 8 of the 11 we

6 would ask for cross on. So three we would have no problem with admission

7 right out. And one we will move to strike -- we will move to exclude

8 based on relevance; and if in fact it is admitted, we will deal with it

9 after the Chamber's ruling.

10 Going back to Your Honour's question about the Prosecution in this

11 case, and I limit it to this case, but the view on 94 versus 92, there

12 certainly is an overarching concern with fairness and expedition. And our

13 position -- we leave it in the Chamber's hands, understanding that for us

14 we would go along with a ruling that allows us to have summaries of the

15 affidavits timely. 65 ter, as you will, paragraph, just so we know where

16 we stand in terms of where the proposed witness will speak, or about which

17 she will speak; then, in fact, have the affidavits in time to incorporate

18 points in them if they are accepted into the cross-examination. And

19 if -- and assuming we have enough time to present to the Chamber

20 objections on the affidavits, if we feel that they should not be accepted

21 in whole, or if accepted, that we would reserve cross, and then have the

22 chance to cross-examine where we ask for that opportunity. And I think if

23 those are the pole stars, the guidelines, I think the Chamber would be

24 able to fashion a remedy that would take into account all interests, so

25 that we really lose nothing that we would have had and that they are not

Page 6863

1 thrown off by a long-set course.

2 JUDGE RODRIGUES: [Interpretation] I don't know whether Mr. Jovan

3 Simic has anything to add. I don't think so. No. You gave us a sign

4 that you have nothing to add.

5 This question that Mr. O'Sullivan, Mr. Jovan Simic, and I think

6 other Defence counsel have raised in terms of the organisation of Defence

7 counsel regarding witnesses: As you know, we are always concerned about

8 this, and I have said many times - I said it to the Prosecution - that the

9 witness [as interpreted] prefers not to have a witness for the last half

10 of Friday, then having a witness who would stay on to appear for an hour

11 on Monday. So I think we should address this together with the Witness

12 Unit so as to organise ourselves well. But I think for things to flow

13 smoothly, it is really necessary to have a little pause, but which, in my

14 opinion, must not be long; otherwise we will be risking delaying the end

15 of the proceedings too much. And this is one of our prime concerns, to

16 complete the case. And the accused have the right to have a final

17 decision, and that is our concern. But we must try and do so in a calm

18 manner and with serenity, without pressure, without rushing things,

19 without stress. So perhaps we must examine how this can be achieved. And

20 I even think, if necessary -- I'm making such an appeal. I see that all

21 Defence counsel are not complete today, and this may be a good thing. I

22 know they're not on holiday; they're working. So if the situation arises

23 when we should have one Defence counsel here and another one preparing the

24 next stage, perhaps we should do that. We don't necessarily have to have

25 all Defence counsel present here in the courtroom. However, that does not

Page 6864

1 apply to the Judges. Taking all this into consideration, I think we shall

2 try to strike a balance so that things can proceed smoothly.

3 I don't know whether we have other matters to address. I think we

4 do. Mr. O'Sullivan mentioned the question of opening statements, and at

5 the Status Conference on the 28th of November we already addressed that

6 matter, I think, and at that Status Conference the response was that

7 Kvocka does need three quarters of an hour, Kos one hour, Radic one hour

8 and Prcac one hour. Can you confirm all that now regarding opening

9 statements? I see nods. If you cannot confirm this, please tell us. So

10 the matter is resolved.

11 We also mentioned that the schedule of the Chamber, due to

12 unforeseen circumstances, has slightly changed. So this is a question

13 that affects Mr. Krstan Simic most, but the other counsel as well, whether

14 it would be possible to sit during the week of the 29th of January to the

15 2nd of February.

16 Mr. Krstan Simic.

17 MR. K. SIMIC: [Interpretation] Your Honour, I learnt about this

18 possibility this morning, and in view of the problems that we have been

19 drawing attention to constantly, that is, the problem of witnesses, we

20 have made a plan. People have been told when they would testify, in what

21 order, that they have to get permission to leave from their companies, and

22 I think it would cause really enormous problems for us to change that

23 timetable. I must tell you that it took us a lot of effort to convince

24 the witnesses to appear here, and now if I were to call them up and tell

25 them, "The schedule has changed. You must come on another date," I think

Page 6865

1 that would be most inconvenient. I too, however, would like to complete

2 this case as soon as possible, but I think that is unrealistic, because

3 the witnesses have been told the dates when they are due to appear and

4 they have adjusted their plans accordingly. So I would be placed in a

5 most embarrassing position in relation to the witnesses. I might be able

6 to organise myself, but I don't know about the witnesses.

7 Then also the organisation of witness travel. I plan to bring the

8 witnesses for a whole week, all of them. It is cheaper and simpler for

9 one man to go and pick them up and take them back rather than bringing

10 them one by one. People also feel afraid when they're alone. And I think

11 this would affect the plans of the Defence and would very seriously

12 disrupt those plans.

13 JUDGE RODRIGUES: [Interpretation] Let me suggest something else.

14 I think it is a luxury, in my point of view, not to use the courtroom when

15 we have so much work to do, but there are things that happen that we

16 cannot foresee in advance. And if we look at our case -- I don't wish to

17 pressure you, but you, as the parties, do you see any other possibility

18 for using up this time available?

19 Mr. Krstan Simic, do you see any other way in which we could fill

20 up this available time?

21 MR. K. SIMIC: [Interpretation] Your Honours, we are the first, and

22 we are faced with a fait accompli. So I have spoken to Mr. Simic, saying

23 that it would be desirable that we should make a new timetable today and

24 take into consideration the free time in the courtroom so that the people

25 that follow me could plan their time.

Page 6866

1 I am now working on the opening statements and the bringing in of

2 witnesses. I have planned their arrival for the 3rd. Their passports are

3 in the administration. I wish I could have a magic wand and bring them in

4 here over night, but that is not possible. They need to get visas, to get

5 tickets and everything. I've just been going through all of this. This

6 is really very complicated. The bureaucracy is highly involved, and I

7 think that would be too ambitious. We are ready, there is no doubt about

8 it, but we have planned to continue our case until the 16th. If we go

9 into March a little, then Mr. Kos would give us that time and by then we

10 would be completed. But all we need is enough time to let the people know

11 who are expected to come.

12 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Krstan

13 Simic.

14 Ms. Susan Somers, my question to you: Do you see a way of filling

15 in the time? It's true that we have a lot to do, but the courtroom

16 availability is an important issue, and I'd like to hear you before I try

17 and convey to you my suggestions.

18 MS. SOMERS: Your Honour, we completely concur with the Chamber's

19 position that every available hour in Court should be used. I don't know

20 whether or not -- there may be sufficient time in advance. If the issue

21 for Mr. Simic were his witnesses' travel, if he wanted -- and again, this

22 is completely not in my hands, but I'm throwing it out. If he were

23 interested in possibly shifting some of the testimony to a video in Banja

24 Luka if that might be of assistance. If the registry feels there is

25 sufficient time to set up, it would occupy the days and it would possibly

Page 6867

1 make it easier for his local witnesses if they didn't have to take two

2 days off but rather a half day; in other words, we come to them.

3 JUDGE RODRIGUES: [Interpretation] Perhaps we should consult the

4 Witness Unit to see whether this is possible, because it is the Unit that

5 deals with witnesses and arranges for visas and everything. I don't know

6 whether it is possible to speed up those procedures to bring the witnesses

7 forward. Maybe it is difficult, maybe even impossible, but we should

8 consult the Witness Unit.

9 However, before giving you the floor, Mr. Simic, let me introduce

10 my idea. My idea -- I know it's always difficult to change plans, but we

11 do have the accused who wish to testify. We have the cross-examination of

12 the other accused. And the accused are here; they're available, aren't

13 they? So the question of the order, we can adapt to it intellectually, I

14 think. We have decided that the cross-examination of Mr. Kvocka and

15 Mr. Radic should be done at the end of the Defence case, but we were

16 open. I felt both the Prosecution and the Defence to agree with beginning

17 the cross immediately. In my opinion, it would be possible, at least to

18 cross-examine Mr. Radic and Mr. Kvocka. It is a suggestion I'm making to

19 you. I am not trying to pressure you. I wanted to hear your suggestions

20 first. I hope you feel quite free to tell the Chamber what you think

21 about this. It is a suggestion of the President of the Chamber, because I

22 haven't spoken about it with my colleagues.

23 So Mr. Krstan Simic.

24 MR. K. SIMIC: [Interpretation] Your Honour, we support such a

25 position. I think that is a possibility for making the best of that

Page 6868

1 time. So you have our agreement.

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

3 Mr. Krstan Simic.

4 Mr. Jovanovic.

5 MR. JOVANOVIC: [Interpretation] Your Honour, the position of

6 Mr. Radic's Defence was that the cross-examination should be done now, as

7 opposed to the request of the Prosecution that it be done at the end. So

8 we are quite ready for it. We quite agree.

9 JUDGE RODRIGUES: [Interpretation] Ms. Susan Somers. So it's up to

10 you now.

11 MS. SOMERS: Mr. President, I kind of hate to be the bad guy, but

12 I have to say that it would be very difficult for us to change or to

13 rework the order now, as we have set everything in motion geared to having

14 all of the case in front of us, and I think that it would provide the best

15 cross-examination if we did not deviate from that. Our position was

16 that - and the Court, of course, factored into its decision, as I

17 understood, from our representations last time - that we had at all times

18 planned to go at the end of the case of the defendant. And I can

19 represent that it would not be okay with the Prosecution to deviate from

20 that now because of the way we have undertaken preparation.

21 I apologise for what may be a perceived inflexibility. It really

22 is not. It's a question of, in part, my own position having to do a bit

23 of extra catching up and making sure that I miss nothing, and also to,

24 more importantly, to make sure that the Bench is not left without some

25 point that we are obligated to get in at the end of -- so that the whole

Page 6869

1 case is examined.

2 And therefore, if there were some other means by which we could

3 use up that time -- unless, perhaps, there's flexibility on the Defences'

4 part to do their opening statements earlier, maybe that would be an

5 alternative that would not be terribly disruptive of any substantive

6 examination. But for us, it would be very, very difficult, and I would

7 ask the Court to stand by its original ruling.

8 JUDGE RODRIGUES: [Interpretation] We will render a decision about

9 this, but I thought that I understood at the last Status Conference that

10 the Prosecution was open to the possibility of beginning the

11 cross-examination of Mr. Kvocka and Mr. Radic now. You always expressed a

12 preference, but in any event, we will have to decide on the matter. What

13 is our concern is that for us, but I think that I can say for the

14 Tribunal, including the Prosecution, it is a luxury to allow a week to go

15 by not using a courtroom, and this is of the greatest concern to us.

16 So I don't see that there are any other matters to deal with for

17 the Status Conference. Oh, yes, of course, we have to go into private

18 session. Perhaps we should have a break first.

19 I see Ms. Susan Somers and Mr. Stojanovic on their feet. Ladies

20 first? Fine.

21 MS. SOMERS: Thank you. If I may ask the Chamber and counsel to

22 indicate at what position in terms of witnesses we might find ourselves at

23 that time, that would be helpful to see if there's any give or take that I

24 can try to negotiate in terms of the way we've undertaken things. And I

25 am hesitant to say anything more, but if perhaps we can get an honest

Page 6870

1 estimate of where we might be at the time of that break, then I might have

2 a chance to make it a little bit easier if I'm confident that we've had

3 enough opportunity to do the yeoman's share of what we have set out to do

4 in terms of preparation for examination.

5 I do not wish to cause a problem for the Chamber, and in terms of

6 the issue of preference, I had looked into the discussion between Mr. Fila

7 and Mr. Niemann, and it really was pretty much left, "We appreciate the

8 concession on going out of order, and therefore you choose the time." So

9 I think it was pretty much at all times understood, at least by us, that

10 we would go at the end.

11 I apologise if there was any confusion to the Chamber. Perhaps

12 the use of the word "preference" might have softened it, but I think it

13 was articulated between the parties that this is how it would go. However

14 if I can get a sense of things, I will try to render some assistance in

15 this.

16 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic.

17 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour. We would

18 like to convey our position, too, should any changes in the timetable be

19 made. We are certainly in favour of saving on time and expenses, but we

20 also have to bear in mind the quality of the Defence. So we would like to

21 remind Your Honours of the fact that Mr. Zigic's case is quite specific in

22 many respects because it abounds in a large number of incidents; and in

23 terms of incidents, we belong more to the Keraterm case, Sikovica,

24 Kolundjia, and others. So we have to prepare for all three camps,

25 Omarska, Keraterm, and Turnoplje, which is not the case for the other

Page 6871

1 Defence counsel.

2 Mr. Zigic had two indictments against him, and I think that we

3 need a lot, a lot of time for preparation. We have managed to do quite a

4 bit, in spite of changes in the Defence team. However, any changes in the

5 order would cause a great deal of difficulty, and in that case we would

6 not be able to meet the requirements of the Defence if the order were to

7 be changed, or rather, if the proceedings are speeded up, because after

8 all, Zigic is the only one who is being charged with very specific facts,

9 in addition to Mr. Radic, and there are many such facts; and therefore, we

10 have to prepare a great deal of Defence evidence. And also, our witnesses

11 have to comment on a wide range of facts, so I appeal to the Chamber for

12 their understanding.

13 JUDGE RODRIGUES: [Interpretation] Very well, thank you very much

14 Mr. Stojanovic. We will bear that in mind and take it into consideration

15 and try to establish a timetable that will be as flexible as possible, and

16 perhaps the way of doing it is - and I'm going to ask the legal officer of

17 the Chamber, Mr. Fourmy - to contact each Defence counsel to see what the

18 specifics of each Defence case are and establish a timetable so as to be

19 able to respect it.

20 But as you know, a timetable is an instrument that can always be

21 changed. We have seen that in our cases. We had a timetable, and then

22 suddenly it's gone because something occurs, so that is why we need to be

23 flexible. But also, of course, we need to have an instrument of work in

24 the form of timetable; otherwise, it's impossible to work.

25 So we're now going to have a half-hour break, after which we'll

Page 6872

1 come back for a private session to address the matters that we need to

2 address in private.

3 --- Recess taken at 11.29 a.m.

4 --- On resuming at 12.25 p.m.

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

6 We shall move into private session to discuss the issues that we

7 have for our private session, and then we'll go back into open session to

8 take up the other matters that are pending. So may we move into private

9 session now, please.

10 [Private session]

11 [redacted]

12 [redacted]

13 [redacted]

14 [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

Page 6873

1

2

3

4

5

6

7

8

9

10

11

12

13 Pages 6873 to 6892 redacted in private session.

14

15

16

17

18

19

20

21

22

23

24

25

Page 6893

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [redacted]

13 [redacted]

14 [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 --- Luncheon recess taken at 1.12 p.m.

21

22

23

24

25

Page 6894

1 --- On resuming at 2.20 p.m.

2 [Open session]

3 JUDGE RODRIGUES: [Interpretation] Please be seated.

4 As you can see, Judge Fouad Riad is not with us. He had other

5 obligations in another case, and therefore as we are at a Status

6 Conference and we don't have to take any substantial decisions, we can

7 continue.

8 The questions that we still have to address is perhaps the

9 question of opening statements, that is, Rule 84, and I think that there's

10 a suggestion for the week beginning the 29th, I think it is, from the 29th

11 to the 2nd of February. So regarding opening statements and Rule 84, I

12 have the following question for you: We have not explicitly addressed the

13 question when each Defence counsel is going to make his opening

14 statement. I think, and as I have said, we haven't spoken about it

15 explicitly, but I think that what we have said may lead us to believe that

16 the opening statements will be made before the presentation of evidence by

17 each accused.

18 Nevertheless, I think there are certain aspects which may lead us

19 to make opening statements at the same time, that is, the prosecution is

20 the prosecution of five accused. There are five accused, and from the

21 standpoint of the cross-examination by the Prosecution, it may be

22 convenient to have the view of all Defence counsel, and we have the

23 opportunity to do so without upsetting the organisation of work because if

24 I am right, I think Mr. Krstan Simic needs three-quarters of an hour, I

25 think, so that would make at least eight hours, which means we would need

Page 6895

1 at least two days for the opening statements. So we could do that because

2 we have at our disposal the Friday, and therefore all the witnesses that

3 Mr. Krstan Simic has planned for this week could be heard during the week.

4 So I think there are certain advantages to be gained by having the

5 opening statements at the same time, but I also think that perhaps the

6 Defence counsel may be taken by surprise. So I should like to hear the

7 Defence counsel and the Prosecutor on this possibility, that is, opening

8 statements at the same time which would begin on Monday, yes or no. Not

9 at the same time, but one after another.

10 Mr. Krstan Simic, I should have perhaps told you this before the

11 break so you could discuss it amongst yourselves, but in any event, I give

12 the floor to Mr. Krstan Simic now. For you it's the same thing; it

13 doesn't affect you.

14 MR. K. SIMIC: [Interpretation] Your Honour, I'm beginning anyway

15 on Monday; therefore, that doesn't affect me at all, so perhaps my

16 colleagues should be heard.

17 JUDGE RODRIGUES: [Interpretation] Yes, thank you. Mr. Nikolic.

18 MR. NIKOLIC: [Interpretation] Your Honour, you're quite right in

19 saying that you would surprise us by this suggestion. When we discussed

20 these opening statements, the position of all Defence counsel was that the

21 opening statements should be made at the beginning of each respective

22 case, and that is how we have prepared ourselves. That is all I am able

23 to say.

24 If you are asking this Defence team for its opinion, it would be

25 for our opening statement to be made at the beginning of our case. Let me

Page 6896

1 just add, as advised by my colleagues, that that was the case in the

2 Celebici case, in the Foca case, and based on that, we took such a

3 position.

4 JUDGE RODRIGUES: [Interpretation] Very well, Mr. Nikolic.

5 Mr. Jovanovic?

6 MR. JOVANOVIC: [Interpretation] Your Honour, I concur with what

7 Mr. Nikolic has just said. It is a position that we took earlier on, and

8 we should like to abide by it.

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

10 Mr. Jovanovic.

11 Mr. Stojanovic.

12 MR. STOJANOVIC: [Interpretation] Your Honour, our opinion is also

13 very similar to the previous speakers. In my conviction, most of the

14 opening statement should have to do with the points we intend to prove and

15 the evidence we intend to present. We are still in the preparatory

16 stages; therefore, an opening statement would be far too early for us to

17 make.

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

19 Mr. Jovan Simic.

20 MR. J. SIMIC: [Interpretation] Your Honour, our position is

21 identical with that of other Defence counsel. We too are pressed by time,

22 so we would like to make our opening statement before we begin our Defence

23 case.

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

25 For the record, Ms. Somers, only. I think we already are clear as

Page 6897

1 to what the view is.

2 MS. SOMERS: We believe this material is entirely in your hands.

3 Just our observation that normally the opening statement would respond to

4 the Prosecution's case, which has essentially come. So thank you.

5 JUDGE RODRIGUES: [Interpretation] Very well. So let's forget this

6 idea. So each Defence counsel will make his opening statement prior to

7 the presentation of evidence for the Defence.

8 Another question of a practical nature is to see whether we can do

9 anything in the week beginning the 29th of January through to the 2nd of

10 February. The Chamber was informed that Ms. Somers has a suggestion, so

11 perhaps we should hear Ms. Susan Somers' suggestion and then hear the

12 reaction of Defence counsel.

13 Ms. Susan Somers.

14 MS. SOMERS: Your Honours, we had had an opportunity to discuss

15 trying to help out in some way with this week that should not be wasted,

16 and although I admit it would be -- it would put us straining our

17 resources, we would be willing, if the Court were so minded, to break up

18 our cross of accused Kvocka, under the following conditions: that we would

19 be prepared, after the first seven witnesses, to examine Kvocka on matters

20 that arose during the course of or relate to the testimony of those seven

21 witnesses, and then, when the case continues, we come back and complete

22 our cross-examination on everything else that comes in and the case. We

23 think this is the only real solution we could propose, and although it

24 would strain us, we would be very willing to try to assist the Chamber in

25 making the best use of that week. We would simply ask -- it is perhaps a

Page 6898

1 creative solution and might need some guidance. And I have not

2 talked -- I have not raised it with my learned opponents. I wanted first

3 to see if the idea were even viable. Thank you.

4 JUDGE RODRIGUES: [Interpretation] So we have this suggestion.

5 Thank you very much for it, Ms. Susan Somers, for trying to find a

6 solution. We will see what the response of Defence counsel is in relation

7 to this suggestion.

8 Mr. Krstan Simic.

9 MR. K. SIMIC: [Interpretation] Your Honours, we would not be able

10 to accept this suggestion, because really we cannot allow the accused to

11 be cross-examined in different stages. We are ready to have his

12 cross-examination completed at the end of the week. We see no grounds for

13 cross-examining the accused after each witness. I think that we made a

14 concession by allowing him to be cross-examined before all the others.

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

16 Simic.

17 Mr. Jovanovic.

18 MR. JOVANOVIC: [Interpretation] Your Honour, we are ready for the

19 cross-examination of Mr. Radic, but that it should be completed in that

20 week. So our position is the same as Mr. Simic.

21 JUDGE RODRIGUES: [Interpretation] Thank you very much for your

22 cooperation. So I think we are in a position when we will have to waste

23 that week.

24 I must share with the parties some concerns that the Chamber has

25 at this moment. The point is that we have to complete this case before

Page 6899

1 July, or around July, certainly before the summer holidays. I think

2 there's no need to elaborate on the reasons. You understand them. If I

3 tell you that the mandate of the Judges ends in November, I think you will

4 immediately understand what I mean. I don't have to go into any further

5 explanations. In other words, it is absolutely necessary to complete the

6 case. So therefore, we absolutely have to make the best of all the time

7 we have available to us. Perhaps we will allow this opportunity to pass,

8 but we cannot, we cannot accept any further waste of time. It is not

9 truly a waste of time, as you know, because it hadn't been programmed in

10 advance, but the Chamber has other cases, has other obligations as well

11 which need to be carried out at the same time.

12 Regarding this question of timetable, I told you that I would ask

13 Monsieur Olivier Fourmy to contact each Defence counsel and the Prosecutor

14 to agree on a timetable that will serve our objectives and that will also

15 reflect your requirements, and after that perhaps we will have a final

16 timetable.

17 Something else that I need to tell you is that the Chamber is not

18 in a position now to fix definitely a timetable with you, because we still

19 don't have definitive information as to when the other case would resume,

20 which means that the Chamber will probably be able to do so in about two

21 weeks' time. Therefore, now we're going to work for five weeks in

22 continuity, and perhaps we will try to meet the requests for pauses. We

23 will see. But after that there will be a pause.

24 So we're going to work five weeks consecutively, in succession, so

25 let me look at the calendar. So we're going to work the week beginning

Page 6900

1 the 22nd, which is Monday, means through to Friday. That is not the case

2 this week as there was an error made regarding the 26th when we will not

3 be sitting. Then we'll be sitting from the 5th till the 9th, from the

4 12th to the 16th, from the 19th to the 23rd, from the 26th of February to

5 the 2nd of March.

6 No, I'm sorry. The 26th until the 2nd of March, that is when the

7 break will be. So when I was saying five weeks, I had included the 29th

8 to the 2nd, but no. So we'll not be sitting from the 29th to the 2nd of

9 February because we haven't found a solution for that. Then the 26th

10 until the 2nd of March, that will be a free week.

11 So we still don't know whether we will resume this case on the 6th

12 because the 5th is a holiday, so we'll be working from the 6th to the

13 9th. We don't know whether we will be resuming this case then or the

14 other case, and it is for that reason that I was saying that we cannot fix

15 at this stage a definitive timetable, but we will do our best to respect

16 the dates set earlier on, bearing in mind the possibility -- bearing in

17 mind the fact that certain programming has been made, and if we are not

18 able to respect them, we will have to change them. But we will do our

19 best to respect the earlier programming made.

20 I'm sorry, I've been given a note here.

21 [Trial Chamber and legal officer confer]

22 JUDGE RODRIGUES: [Interpretation] So what we can say for certain

23 is that we will begin on Monday with the Defence case for Mr. Kvocka. We

24 will have an opening statement, and after that, the testimony of

25 witnesses.

Page 6901

1 In any event, as Friday is free, if we haven't finished with the

2 witnesses, we can use that Friday. So when I say that we're not working

3 on the 26th, we won't be working if we don't need it, if we finish with

4 all the witnesses on Thursday. If we need Friday, we will use the day.

5 Mr. Krstan Simic, is that okay, then?

6 MR. K. SIMIC: [Interpretation] Yes, Your Honour. I have been

7 informed that all the witnesses are ready to come here, and I hope that

8 they will have no problem boarding the plane.

9 JUDGE RODRIGUES: [Interpretation] Very well, thank you.

10 [Trial Chamber confers]

11 JUDGE RODRIGUES: [Interpretation] Have the parties any other

12 questions to raise before we adjourn? Yes, Mr. O'Sullivan.

13 MR. O'SULLIVAN: The only observation we would make regarding the

14 timetable is, as we have that -- the three solid weeks in February, that

15 would give the Kvocka case a total of four weeks. Now, if they were to

16 end somewhere in that four weeks, we would be requesting, as you

17 suggested, Your Honour, a short break there. If in fact we're in the last

18 week of that schedule, the 19th to the 23rd, that may be the point where

19 Kvocka ends and Kos's schedule begins, so we would ask for your indulgence

20 and flexibility when we see when Kvocka is likely to end and Kos will

21 begin.

22 JUDGE RODRIGUES: [Interpretation] Mr. O'Sullivan, excuse me, but

23 as I have said for the reasons I have told you about, we're trying to make

24 the best of the time. Do you have any urgent need for this pause?

25 Couldn't that be dealt with in some other way?

Page 6902

1 MR. O'SULLIVAN: Well, the whole, the whole question of the timing

2 will hinge on how long the Kvocka case takes, and I think that may include

3 how much cross-examination the Prosecution may request or need of

4 affidavits, whether we do videolink. There is some uncertainty in just

5 how long the whole Kvocka case will take, and we'll see that as we move

6 through the month of February. But that's all we'd like to flag at this

7 point, is to state our position on our need for some lead time before we

8 make the transition to our case.

9 JUDGE WALD: What do you consider, in the abstract, I know, but

10 what do you consider a sufficient pause?

11 MR. O'SULLIVAN: Let me first say we would not want to find

12 ourselves finishing Kvocka on a Wednesday and thinking we could start on

13 Thursday, the following day. If it's mid-week like that, three, four,

14 five days is what we would look for.

15 JUDGE WALD: How about if it's a Friday?

16 MR. O'SULLIVAN: Friday/Monday is pretty tight.

17 JUDGE WALD: Friday/Tuesday is all right?

18 MR. O'SULLIVAN: Yes, yes.

19 JUDGE WALD: I'm just exploring what you said.

20 MR. O'SULLIVAN: I think which days off are relevant here, whether

21 it's the weekend or mid-week. We can probably gauge this later as we move

22 through the Kvocka case, but I think you can see our concern, that we'd

23 like to be in a position to have our people ready to come and be here and

24 we could begin.

25 JUDGE RODRIGUES: [Interpretation] Perhaps to follow-up on this

Page 6903

1 question raised by the Kos Defence, perhaps I could ask Mr. Krstan Simic

2 whether you can give us an idea now already of your own schedule, if I may

3 put it that way. What is your timetable now?

4 MR. K. SIMIC: [Interpretation] Your Honour, I have 26 witnesses.

5 Twenty-three of them will certainly appear in Court if time allows, of

6 course. We have affidavits, we have the cross-examination, and finally,

7 we have the cross-examination of Mr. Kvocka. Ms. Somers has said it will

8 take a day or two.

9 I would be very glad and happy if I can complete everything by the

10 16th of February. That would be a few days more than the others, but I'm

11 not sure that I will succeed. I would be very happy to complete the

12 presentation of my case on the 16th of February.

13 JUDGE RODRIGUES: [Interpretation] So perhaps -- I don't think we

14 can make a final assessment today because we still don't know what will be

15 the response of the Prosecutor regarding affidavits that you have

16 received, if I understood things well. Thank you, Mr. Krstan Simic.

17 Maybe we can come back to you.

18 Ms. Somers.

19 MS. SOMERS: Thank you, Your Honour. I just wanted to clarify a

20 point that Mr. Simic attempted to represent. Our comment about length of

21 cross was minimally a day or two, minimally. And this would lead into

22 another question, because I understand that the cross of -- that the

23 direct went on for up to four days? Four days. And we would, of course,

24 have to reserve, as it were, equal time. We'll try to be as crisp as

25 possible.

Page 6904

1 But one question that would arise - and I hope this is not an

2 inappropriate time to raise it, but it will help us plan a bit - is if

3 there is a rule which prevails in this Chamber about the duration of cross

4 and the duration of -- the relationship of the length of cross to the

5 length of direct, when Radic testified, he effectively adopted something

6 like to two days' worth of Kvocka's testimony. We will nonetheless have

7 to deal with the issues with respect to Radic, and therefore just to let

8 the Chamber know that when we factor in the time needed for crossing

9 Radic, it will not be based on that quick adoption of number of days'

10 worth of testimony, but we will have to go into the testimony that was the

11 subject of that number of days. And again, I wanted to let the Chamber

12 know in advance, having looked at how things transpired, that that would

13 be a factor in overall time assessment.

14 If we move on to anything else, I just wanted to return, when the

15 Chamber is prepared to allow me to, to a quick couple of points on R,

16 which we discussed just before the break, but whenever the Chamber is

17 ready.

18 JUDGE RODRIGUES: [Interpretation] Yes.

19 MS. SOMERS: Thank you. Excuse me one second. I just want

20 to --

21 [Prosecution counsel confer]

22 MS. SOMERS: I think we're safe. It appears to have been open

23 session, so there's no issue. I wanted to bring to the attention of the

24 Chamber that I did review again the testimony during the lunch break, and

25 I will only amplify my comment to say that although [redacted]

Page 6905

1 [redacted]

2 [redacted] Secondly --

3 JUDGE RODRIGUES: [Interpretation] Excuse me. We're in open

4 session now. We are not in private session.

5 MS. SOMERS: My understanding, Your Honour, was that it was open

6 session, this testimony. The transcript I'm looking at says, "Witness R,

7 open session," so I -- yes. Have I misunderstood the status of the

8 session? My understanding is that it was all open. Okay. Thank you.

9 Secondly, perhaps more importantly, is our concern about the

10 invocation by the Defence now on statements. First of all, the discussion

11 opened this morning with the idea -- with a concern over the use of 94

12 ter, the deceased 94 ter, as it were, for the new 92 bis, and it was -- it

13 appeared that the Defence was unified in its desire to proceed under 94

14 ter generally. In other words, 92 bis was not going to be, for

15 preparation purposes, necessarily governing. To even suggest the

16 transcript at this point, whether use of a transcript, which would be

17 coming in presumably under 92 bis, appears to us to be a bit of a

18 selective use of 94 and a selective use of 92, which I think would very

19 much disadvantage us.

20 Secondly, if in fact the Chamber were looking at the

21 appropriateness under 92, should it consider it, the language of it - and

22 again, it is a very untested provision; in fact, it is, as Judge Wald

23 pointed out, effective as of today - does not contemplate the use of

24 transcript evidence where the issue goes to the guilt of the accused. And

25 I would just call that to the Chamber's attention, because I think under

Page 6906

1 no set of circumstances would we feel that it were even-handed to allow a

2 transcript now when in fact we also would not benefit -- or we did not

3 benefit from the change in the Rule. And we were, in fact, based on I

4 think the 4th of July decision of 2000, it was indicated that we could not

5 use the prior transcripts.

6 JUDGE WALD: The only thing I want to add to your thing is that my

7 understanding that -- leave out for a moment new 92 bis and however it

8 comes to be interpreted, but under the prior jurisprudence we had not

9 only - the prior or the one we started out with here - we not only had 94

10 ter affidavit evidence, but you did have some jurisprudence in the

11 Tribunal apart from 94 ter that allowed transcripts in certain situations,

12 like Blaskic and Aleksovski, that was, in certain circumstances, at least,

13 upheld by the appellate. So it wasn't a question of everything having to

14 be -- to go by way of 94 ter. That's all I --

15 MS. SOMERS: That's correct, Your Honour, and in fact transcripts

16 had been used widely in other Chambers, but this Chamber did not permit it

17 for the Prosecution, and so we would ask that essentially there be no

18 shift in policy.

19 JUDGE WALD: I understand.

20 MS. SOMERS: Thank you, Your Honours.

21 JUDGE RODRIGUES: [Interpretation] I see Mr. O'Sullivan on his

22 feet.

23 MR. O'SULLIVAN: Yes. May I respond to that, Your Honour? This

24 issue is relevant to our defence, and in my submission, on July 4th of

25 last year, Your Honours did in fact rule that transcripts are admissible,

Page 6907

1 and that was in keeping with the Aleksovski decision, which, as Your

2 Honours know, is an appellate decision which is binding on this Chamber.

3 The Prosecution has pointed out in their response to 65 ter that

4 they were not allowed to submit the transcript from the Tadic case of

5 Witness A, and that was quite correct. Witness A testified. Your Honours

6 did not allow them to submit in addition Witness A's transcript from Tadic

7 because the witness was here.

8 The Aleksovski situation is when the witness is not coming to

9 testify, and if a party brings the transcript within the parameters of the

10 Aleksovski appeals ruling, it's admissible. That's been the findings of

11 this Tribunal since Aleksovski, in Kordic, and I think Your Honours know

12 better than I what -- your recent decision in Tuta and Stela regarding the

13 admissibility of transcripts from other proceedings which can be brought

14 within the Aleksovski rule. I can tell Your Honours that it is our

15 intention for Kos to rely on that decision and that ruling.

16 Now, clearly the language of 92 bis seems to, on the face of it,

17 change the Aleksovski rule or place certain limitations on the Aleksovski

18 rule. When the time comes, we'll make our submissions on what we think is

19 appropriate, given Rule 60, and what we say is exculpatory evidence from

20 transcripts in other trials, but for now I just wanted to make that point,

21 Your Honour.

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

23 Mr. O'Sullivan, for drawing our attention to this. I was just about to

24 pose the question myself. I would not like to take a position regarding

25 the decision of the Chamber, but it is true, I think, that we made a

Page 6908

1 distinction. If we place this whole issue of transcript within the

2 overall discussion that we had, on a number of occasions, not just once,

3 but repeatedly in this case, we have in a sense compared transcripts to

4 when we have the witness here, to the opening -- to the preliminary

5 statements.

6 It is true what Mr. O'Sullivan has said, for witnesses who were

7 present. But for others, the question that we discussed, as far as I can

8 remember, was to tender into the record transcript automatically or after

9 a discussion, because we proceeded from the principle that transcripts are

10 public and therefore they can be used in the case. And the position that

11 we took at the time was: Yes, they are public, but to be admitted into

12 evidence it is necessary to discuss the matter within this case, and that

13 is I think the position that we took.

14 So it is true that we took a position regarding prior statements,

15 and we include there not only the statements given to the Prosecutor but

16 also the statements given to administrative authorities by the witness,

17 for instance, the authorities of Bosnia-Herzegovina. And as there was a

18 disagreement there, we agreed that the counsel could use the statements

19 here for their cross-examination, but those documents were never tendered

20 or admitted.

21 So you will remember that there were counsel who wanted to tender

22 into evidence only the part used, and the other party said, "No. No. The

23 entire document needs to be tendered." The other party said, "No, because

24 then we will be admitting into evidence information on which I had no

25 opportunity to cross-examine." And so we rendered the decision that the

Page 6909

1 parties may use either transcripts from hearings or prior statements given

2 to the Prosecutor or any other statements given to the authorities, but

3 not to admit them when the witness is here in the courtroom. However, we

4 have an entirely different situation when the witness is not here, and I

5 think that we decided that. But we can check. I think Mr. O'Sullivan is

6 right when he says what he says. That is my impression. As I said, I was

7 saying this without committing myself to a ruling of the Chamber.

8 So I think we will take that into consideration. The Chamber will

9 decide. We said that we would take a decision today, but you must

10 understand that there are questions that require more in-depth

11 consideration, and therefore we will try to render our ruling Monday

12 morning. We will come back with our decision.

13 I see that Mr. Stojanovic wanted to say something.

14 MR. STOJANOVIC: [Interpretation] Yes, Your Honour. I should like

15 to thank my learned friend O'Sullivan, because that was our opinion too.

16 There obviously appears to be a misunderstanding with Ms. Somers.

17 She said that one of these names - I don't know whether I may say it in

18 public now - that one of these names is not mentioned. [redacted]

19 [redacted]

20 [redacted]

21 [redacted]. So we have three

22 persons for which Zigic has been accused and about which there are very

23 detailed explanations in this transcript, very detailed and clear. In any

24 event, it is our submission that this is a document whose authenticity

25 cannot be contested in any way and which, in our opinion, has far greater

Page 6910

1 weight than many other documents that have been admitted by the Tribunal

2 from other sources.

3 JUDGE RODRIGUES: [Interpretation] Ms. Somers.

4 MS. SOMERS: Can I try just to be of assistance to the Chamber in

5 giving some locations of testimony, if it will help. The reference for

6 the July 4th conference is, in the unofficial, not corrected version, page

7 3522, if it would be of assistance, and 23; and then in the Tadic matter

8 it's referring to page 2325, et seq., and particularly 2338. The date

9 would have been 17 July 1996.

10 JUDGE RODRIGUES: [Interpretation] Very well. I think we've come

11 to the end. We'll take care of this, all this, and then -- excuse me.

12 Mr. Krstan Simic.

13 MR. K. SIMIC: [Interpretation] Your Honour, I don't know whether

14 this is a question for the Chamber, but we're beginning on Monday, and

15 tomorrow is a non-working day. Could the registry allow me to come with

16 the witnesses, to come to the court to brief them a little bit so that

17 they shouldn't be in any way surprised once they come to the courtroom?

18 And I think this has been a practice applied by the Prosecution

19 regularly. So can I bring my witnesses to the Tribunal tomorrow?

20 JUDGE RODRIGUES: [Interpretation] Mr. Krstan Simic, do you

21 cooperate with the Witness and Victims Unit, or do you do all that by

22 yourself?

23 MR. K. SIMIC: [Interpretation] I do cooperate with them.

24 JUDGE RODRIGUES: [Interpretation] Madam Registrar, would this be a

25 problem, the request made by Mr. Krstan Simic, or not?

Page 6911

1 THE REGISTRAR: If he would give me a brief minute to discuss this

2 with my superiors, I'll be able to confirm, because this is new for me.

3 I've never had this request.

4 JUDGE RODRIGUES: [Interpretation] Mr. Krstan Simic, I think the

5 best thing to do would be as follows: Madam Registrar will do everything

6 she can for you to be able to do so on Monday, so we'll begin the hearing

7 at 10.00. I'm saying this because it's important. We'll begin the

8 hearing at 10.00. Is that all right? 10.00.

9 And in the meantime, Madam Registrar, you will take all the

10 necessary measures.

11 Something else that I should like to say. Could you tell us,

12 Madam Registrar, whether you have regulated the question of the numbers

13 for the exhibits?

14 THE REGISTRAR: Yes, Mr. President, I have met with the Defence

15 counsel and we discussed -- and they're in agreement with how we will

16 handle the protected witnesses and exhibits, so that has been taken care

17 of.

18 JUDGE RODRIGUES: [Interpretation] Very well. I think finally we

19 have indeed come to the end this conference. Thank you for your

20 cooperation. We'll be back here on Monday to begin -- or rather, to

21 finish as soon as possible. As I have told you, when there are questions

22 that take time, we will discuss those questions in the afternoon, but we

23 will devote the morning hearings to the witnesses. So perhaps we may need

24 to have several Status Conferences to address the question of the rhythm

25 of work. We will bear in mind what the Kos defence has requested, having

Page 6912

1 a pause if possible, but we will have to deal with that as we go along.

2 So for today, all that remains for me to do is to wish you a good

3 weekend, success in your work, and we will meet again on Monday at 10.00.

4 Do not forget, 10.00 Monday.

5 --- Whereupon the hearing adjourned at 3.05 p.m., to

6 be reconvened on Monday, the 22nd day of January,

7 2001, at 10.00 a.m.

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25