1 Thursday, 15
2 [Open session]
3 --- Upon commencing at 9.32 a.m.
4 [The accused entered court]
5 JUDGE RODRIGUES: [Interpretation] You may be seated. Good
7 Good morning, ladies and gentlemen, technical personnel, the
8 registry staff, counsel for the Prosecution and for the Defence. We shall
9 be resuming our work now, and I believe that now Mr. Fila has to tell us
10 what we are going to do today.
11 MR. FILA: [Interpretation] Mr. President, Mr. Saxon will
12 cross-examine Mr. Radic today, and I should like to ask to call the
13 accused Mr. Radic to take his seat in the witness box.
14 Will the usher please show the witness to the ... Thank you.
15 JUDGE RODRIGUES: [Interpretation] Mr. Radic, good morning.
16 THE WITNESS: [Interpretation] Good morning.
17 JUDGE RODRIGUES: [Interpretation] You will not read the solemn
18 declaration, because cross-examination is part of the examination, but I
19 need to remind you that you are under oath and that you have to answer the
20 questions that you will be asked. And as I have told you before, we work
21 in -- you come from a judicial system where the accused cannot testify,
22 but here he can testify, but he is under oath, which means that he must
23 speak the truth and nothing but the truth. Therefore, if you do not tell
24 the truth, you may be charged with perjury, just like any other witness.
25 Having told you all this, now you may be seated.
1 MS. SOMERS: Thank you, Your Honour. Before commencing with the
2 cross-examination of the accused Radic, the Prosecution would ask to
3 bring -- to ask for resolution of one matter, which is the amount of time,
4 but that would be perhaps secondary to another matter which I wanted to
5 bring to the Chamber's attention and to counsel's attention.
6 In the course of preparation last evening for today's cross,
7 through a rather circuitous route, the Prosecution came across,
8 accidentally, in a sealed or confidential closed-session transcript, some
9 information which it believes would properly belong under a Rule 68
10 description. We are moving to have the transcript opened up pursuant to
11 Rule 75(D), but because of the lateness of the discovery and the
12 accidental nature of the discovery, we can only do so today. The
13 particular information relates to a document which the Prosecution intends
14 to offer into evidence in connection with the cross-examination of accused
15 Radic, but the Prosecution believes it must wait to even attempt to do so
16 until the subject material from the transcript that I have just discussed
17 has been released by the appropriate Chamber. This will take some time,
18 as the concurrence of a number of Judges will be involved.
19 Therefore, the Prosecution respectfully requests that it be
20 permitted to reserve approximately one half hour or no more than one half
21 hour of its overall time in cross-examining Mr. Radic, for a time future
22 to be agreed upon by the parties, with Chamber concurring, in order to be
23 able to present the document to Mr. Radic and make sure that counsel have
24 an opportunity to have the benefit of the information which may have Rule
25 68 implications. We apologise for any inconvenience. Again, this was
1 literally a happenstance discovery for us, because it was in a transcript,
2 and we would see no prejudice to any party as long as the material, if
3 we -- is made available to the Defence, which we believe it must be.
4 Secondary to that, if I may, so that perhaps the Chamber can
5 consider together, I have offered to the registry our -- the results of
6 our searching for the number of hours that were allotted to the
7 Prosecution for the cross-examination of Mr. Radic. It was a lengthy,
8 difficult search because it involved about four passages from LiveNote,
9 and my reading of it from -- I don't remember the date, because Madam from
10 the registry has my copies, but there is a passage in which Your Honour
11 Judge Rodrigues says something to the effect of: Then it would be three
12 or four days for the two defendants, Radic and Kvocka. Then there is a
13 pause, a conference with the members of the Bench, and then Your Honour,
14 Judge Rodrigues, returns to indicate -- I think it says four
15 days -- originally it said four hours, then Your Honour said: No, Judge
16 Wald corrected it to read four days, and the Prosecution can decide how to
17 do it. I'm paraphrasing, because I don't have it in front of me, and I
18 would ask my learned friend to pass on the particular point.
19 At a later time there is a reference by Your Honour, Judge
20 Rodrigues, indicating that for Kvocka there was a 14-hour count of number
21 of hours. Then there's another reference to 12 hours, but it appears that
22 the actual count may have been 14 hours for Kvocka, which would represent
23 actually over three working days if we consider a day four hours,
24 roughly. The Prosecution did not use all of its time. I think it stopped
25 short of -- it stopped at lunchtime on what would have been the third
2 If this information can be reviewed by the Chamber -- this is the
3 best I could do. It was difficult because they were not linked together
4 in any particular fashion, so I think these are the references. And then
5 there is a comment by Your Honour, Judge Rodrigues, that the Prosecution
6 did not use all of its time in connection with Kvocka, and all of those
7 passages have been provided to the registry. Thank you very much.
8 JUDGE RODRIGUES: [Interpretation] Ms. Susan Somers, before I give
9 the floor to the Defence, that is, Mr. Radic's counsel, we need to make a
10 distinction between two things: one, the reference to the document which
11 you have just discovered; and secondly, the question of time. Before I
12 give the floor, could you be more precise? When is it that you learned of
13 the existence of this document? That is one thing. And secondly - and
14 these two questions are, of course, linked - did you already ask for the
15 removal of protection measures?
16 MS. SOMERS: Your Honour, I am informed by my colleague,
17 Mr. Saxon, who came across the document, that it was approximately 1800
18 hours, or 6.00 p.m., yesterday, which would have been Wednesday -- I think
19 that was the 14th of March. We are preparing now, in between sessions, a
20 motion under Rule 75(D) to the appropriate Chamber. Excuse me, Your
21 Honour. I will indicate we did try last night to reach out to members of
22 the staff, and the lateness of the hour prevented our success, but we did
23 try immediately to at least indicate that we would be seeking some type of
24 deferral of about half an hour, and it was difficult because of our own
25 time schedule.
1 JUDGE RODRIGUES: [Interpretation] Yes, that is true. I can say
2 that e-mail does say something about somebody who tried to get in touch
3 with me.
4 Mr. Fila, what is your response to this specific proposal to set
5 aside half an hour so that one -- so that we can get this document, that
6 is, a document which falls under Rule 68?
7 MR. FILA: [Interpretation] Your Honours, as of the moment of
8 testimony of Mr. Radic, to this day, months have passed by, or maybe a
9 year -- no, 13 months. During these 13 months, the Prosecutor could have
10 dealt with this case rather than yesterday at 1800. I simply have no
11 sympathy for this, and I do not see that we need to do anything to defer
12 the trial.
13 The accused Radic is completely unprepared. He is surprised and
14 taken unaware by all that the Prosecution intends to show him today, which
15 I received yesterday, which I received this morning, and which I will have
16 in half an hour. I cannot sleep in the same room with Mladjo Radic to
17 know when which document will get there.
18 So if the Prosecution wants it, we have the generous offer of
19 Mr. Simic, to undertake the cross-examination of Mr. Radic in May. In
20 that case, I will go along with all the proposals of the Prosecution and I
21 will study it all until May. But I was shown some material last night,
22 yesterday I was given a tape, and now I hear I'll be getting something
23 else, and without me being able to talk with my client about it. Is that
24 a fair defence? Is that the fairness of trial before this Tribunal?
25 So I am against it. If the Prosecution did not get ready for 13
1 months, let them start preparing themselves now until May and let us
2 cross-examine Mr. Radic in May. Thank you.
3 JUDGE RODRIGUES: [Interpretation] Mr. Fila, you perhaps are fully
4 entitled to say what you are saying. But we, nevertheless, know that the
5 Prosecutor has just told us that they learned of it yesterday as they were
6 preparing for this session. They cannot tell us now what is the nature of
7 the document because it is under seal, it comes from a different case.
8 Maybe the Prosecutor could really seize this opportunity to distribute
9 this document, especially if it is of exculpatory nature.
10 If that is true and they learnt of it only yesterday during their
11 work, maybe - I don't know - but maybe one should reconsider and accord
12 the Prosecutor the benefit of doubt so that everybody is given fair
13 treatment. That is at least what I think.
14 MR. FILA: [Interpretation] I'm sorry, I did not hear at all that
15 it was an exculpatory document. They did not say that. I've only heard
16 it from you. I did not -- I'm sorry, I simply did not understand it like
18 Secondly, this is the photograph that I found this morning and
19 that will be shown to the accused Radic. Was that found last night? I
20 received it last night after 9.00, it was after 9.00 that I received this,
21 and this is what we are going to look at today.
22 JUDGE RODRIGUES: [Interpretation] So, Mr. Fila, what are you then
24 MR. FILA: [Interpretation] I'm proposing, since Mr. Prcac is not
25 here, to defer this until May. And then by May, the Prosecution should
1 complete its work, everything that they failed to do during these 13
2 months, and then start again. Also, that I should have each and every
3 document at least seven days in advance and not seven hours or even less
4 in advance. I should also like to hear the opinion of other counsel.
5 JUDGE RODRIGUES: [Interpretation] Yes. Perhaps we should hear
6 other Defence counsel, Ms. Somers, and then you can answer them all at one
7 and the same time.
8 Yes, Mr. Krstan Simic.
9 MR. K. SIMIC: [Interpretation] Your Honours, I second the views of
10 Mr. Fila.
11 JUDGE RODRIGUES: [Interpretation] Mr. Nikolic -- Mr. O'Sullivan,
13 MR. O'SULLIVAN: Given the nature of what this document may be,
14 which is exculpatory, it does, in my submission, affect Kos because we --
15 JUDGE RODRIGUES: [Interpretation] I'm sorry to interrupt you. I
16 admit this possibility. I do not know this document but I admit that
17 possibility. So this was just to clarify matters. Yes, do go on,
19 MR. O'SULLIVAN: You're quite right, Your Honour, and the point is
20 we must see it, because Kos is entitled to cross-examine this witness
21 second in order here today.
22 Given that the Prosecution submits that it is exculpatory in
23 nature, Kos must see that document to know whether or not we wish to
24 cross-examine Mr. Radic based on that document. Until we see it, we
25 cannot make that determination. We are second after Kvocka in line to
1 cross-examine this witness.
2 I can tell you right now we have no questions for Mr. Radic, but
3 that may change when we see this document. So we, too, think that we
4 should be provided this document so that we can decide whether we will
5 have questions for this witness.
6 JUDGE RODRIGUES: [Interpretation] Before I give the floor to the
7 next counsel, I perfectly understand your question, Mr. O'Sullivan, but
8 the Prosecutor will cross-examine on the basis of this document and then
9 other counsel may, if they wish to do so, also ask questions, that is,
10 seize this opportunity even without knowing the document.
11 But we shall now move on. You wanted to add something,
12 Mr. O'Sullivan, did you?
13 MR. O'SULLIVAN: Under Rule 85, we cross-examine before the
14 Prosecution. That's my position.
15 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic.
16 MR. STOJANOVIC: [Interpretation] Thank you, Your Honours.
17 We share the view of Mr. O'Sullivan up to a point. Naturally, if
18 a new document is put before the witness during the cross-examination or
19 re-examination, then, depending on the relevance of the document and the
20 scope of this document, we perhaps shall be seeking additional time so as
21 to prepare for either the cross-examination or re-examination. I believe
22 we are entitled to it. If, during the cross-examination or re-examination
23 of our client, a new document emerges, then we must prepare for that.
24 As for the time, if the Prosecution did not produce this document
25 before, then I think that the time should be at their expense. Thank
2 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Stojanovic.
3 Mr. Jovan Simic.
4 MR. J. SIMIC: [Interpretation] Good morning, Your Honours.
5 I fully share Mr. O'Sullivan's position. If this decision is
6 supported, then we shall be able to put at your disposal that day, one day
7 or so.
8 JUDGE RODRIGUES: [Interpretation] Right. Thank you. Thank you,
9 Mr. Simic.
10 Yes, Ms. Somers, you may answer now, if you wish.
11 MS. SOMERS: Your Honour, I think just having acquainted myself
12 somewhat with some of the procedural changes that have taken place here, I
13 think this is a very unreasonable position that is being proffered by the
15 First of all, to have had counsel for the Defence place their
16 defendants on first before our case was already an indication that this
17 Chamber has been very flexible in terms of the need on occasion, based on
18 what it has deemed to be good cause, to shift around the order of
19 testimony as long as it doesn't prejudice the overall proceeding. So I
20 think the Chamber has well understood in the past that there are reasons
21 for which things need to be considered and may not necessarily follow the
22 typical order.
23 Secondly, it is not a document which is at issue, it is some
24 testimony in closed session to which we would not normally have even had
25 our attention drawn. I am grateful that it was drawn, even by accident,
1 and I want to make sure that all measures are taken that it can
2 immediately, upon release, be provided.
3 Yes, Mr. Saxon reminds me, it was from a different case, I don't
4 know how many years ago but years ago apparently.
5 The issue of presenting - excuse me, please. I'm so sorry -
6 documents to Mr. Fila in advance of placing them in front of the witness
7 during cross-examination, indeed, arises from the Rule 66(B) request that
8 he made. As the Chamber knows, there really is no Rules obligation to
9 present documents in advance. Because of Rule 66, which only kicked in a
10 couple of weeks ago because of the lateness of the request, and to which
11 we have tried to be responsive this week and however much more time is
12 necessary if anything comes up that is, in their view, useful, they still
13 are reviewing the documents. But under Rule 66(B), as we pull them for
14 use, we present them. Of course, the 67(C) obligation persists as well.
15 But I can see no issue of prejudice that would arise, and I think
16 half an hour off of our time, which we are simply asking to defer, given
17 the nature of it, would be adequate for all parties to address it.
18 I can't go more into detail now because of the nature of the
19 material, but I think that it would adequately cover the situation and we
20 think, under the circumstances, there is no prejudice. Indeed, the
21 flexibility that has been the hallmark of this Chamber, I would ask to
22 stay in motion. Thank you.
23 JUDGE RODRIGUES: [Interpretation] Mr. Fila, I believe this is some
24 new information. Would you like to respond to that?
25 MR. FILA: [Interpretation] Mr. President, I repeat: This witness
1 is in gaol and I sleep in a hotel. If, under 66, the Prosecution is bound
2 to give me a document, they are not giving it to me. I have to meet the
3 accused and I have to discuss it with him and prepare the defence. I say
4 that I'm getting these documents in a manner which does not allow me to
5 prepare a defence.
6 You cannot tell me that these photographs were taken yesterday at
7 6.00, and that I got them at midnight, or some tape the day before
8 yesterday. Again, these documents, it is impossible that they never saw
9 these documents before. That is the Tadic case. It is evident.
10 I don't know. Why can't we postpone it until May? And then my
11 learned friend will have all her questions prepared and I'll have at least
12 one day to discuss it with the accused, if this is supposed to be a fair
13 trial. Thank you.
14 JUDGE RODRIGUES: [Interpretation] Very well.
15 Ms. Somers.
16 MS. SOMERS: Thank you. Just one comment, Your Honour.
17 The particular documents in question that Mr. Saxon gave as a
18 courtesy are not necessarily 66(B) documents. Those have been dealt with
19 all week. These are documents that we intend to use and that, in fact,
20 are not under the material to the Defence section of Rule 66(B). This is
21 a courtesy which, I think when possible, we try to honour. But I think
22 that counsel is perhaps mischaracterising the nature of the advanced
23 handover. Thank you very much.
24 JUDGE RODRIGUES: [Interpretation] Yes, Mr. O'Sullivan.
25 MR. O'SULLIVAN: If I can briefly add to my submissions, Your
2 Kos does not waive his right to cross-examine this witness; Kos
3 does not waive his right to cross-examine this witness second after Kvocka
4 and before the Prosecution. And in my submission, the Rules of Evidence
5 are to be applied strictly, and any change that took place in this case on
6 the order of testimony was brought under Rule 85(A). And the Appeals
7 Chamber has said that the Rules must be applied strictly, and we ask the
8 Chamber to do that.
9 JUDGE RODRIGUES: [Interpretation] I shall consult my colleagues
11 [Trial Chamber deliberates]
12 JUDGE RODRIGUES: [Interpretation] Bearing in mind the discussion
13 about the issue in dispute regarding the matter raised by the Prosecutor,
14 and bearing in mind the views of the Defence - notably, the suggestions
15 and proposals voiced by them - the Chamber deems that for the sake of the
16 clarity of the case, for the sake of enough time needed for the
17 preparation of the cross-examination of Mr. Radic, it will be preferable
18 to postpone the cross-examination.
19 As you know, the Chamber is very concerned with the speed of the
20 proceedings, but nevertheless the Chamber deems that the proposal made by
21 the Defence, that is, by Mr. Fila and Mr. Simic, will not disrupt to a
22 considerable extent these proceedings. And therefore, in the name of the
23 case and in the name of the right of the accused to a fair trial, and also
24 in the interests of an efficient and expedient process the Chamber has
25 decided to defer the cross-examination of Mr. Radic. And during this time
1 the Prosecutor will be able to request the lifting of protective measures
2 over this document, which we are told that this is not a document but the
3 testimony which was given in a private session, or given in camera - that
4 suffices - and therefore the Prosecutor will have the time to move that
5 the protective measures be lifted off this document and the Defence will
6 also have time to prepare and take whatever decision it believes
7 necessary. When I say "the Defence," I mean all the Defence counsel.
8 They will have time to prepare and take the necessary decisions for the
10 This is the ruling of the Chamber, and I believe this is the only
11 manner in which we believe we can maintain the equilibrium which is of
12 concern to us, that is, the equality of arms between the two parties.
13 Right. Now we could avail ourselves -- I should say, perhaps,
14 Mr. Radic, as you have understood by now your cross-examination will not
15 begin today -- for reasons that you have just heard, it will be deferred.
16 And we apologise for the inconvenience. The usher will now help you to
17 get back to your bench.
18 THE WITNESS: [Interpretation] Thank you.
19 [The witness stood down]
20 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Fila.
21 MR. FILA: [Interpretation] I should like to ask the Prosecution
22 that all the documents that it wishes to use, give me at least 24 hours in
23 advance for me to be able to go to the Detention Centre and to inform
24 Mr. Radic of those documents. From today up until May, please may we have
25 the documents 24 hours in advance so as not to learn that we have
1 something waiting for us at 9.00 in the evening and the trial goes ahead
2 the next day. So please, this will give me a chance to go to the
3 Detention Unit.
4 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Fila, but let us make a
5 distinction between courtesy and obligation.
6 I shall now give the floor to the Prosecution, and it is Ms. Susan
8 MS. SOMERS: Thank you for taking the time that we would have
9 proceeded with -- cross-examine on to make this ruling, Your Honour. I
10 realise that it was a -- the nature of it was last minute, and we are
11 grateful for the due consideration given.
12 In terms of the matter just raised by Mr. Fila, I think he knows
13 we have a fairly open relationship, and I appreciate the Chamber's
14 emphasising the distinction between the courtesy and the obligation. We
15 hope that we are always deemed as courteous in our dealings with the
16 Defence, and to the extent that we can facilitate matters so that time is
17 not wasted, we do that.
18 Is there any other aspect of this -- that particular point that I
19 should elaborate on, or may I ask the Chamber to give us some notion for
20 purposes of our own preparation about the time, or would it prefer to
21 study the various LiveNote sections that I provided to the registry to
22 give us its reading on the amounts of time?
23 JUDGE WALD: Can I just ask you one -- how much time you think,
24 you think, based on your -- that you deserve and/or need, so we know what
25 ranges we're talking about in making a decision? I'm not clear.
1 MS. SOMERS: I have been informed by Mr. Saxon that he perceives
2 5.5 hours to be the time frame. My reading of the various quilted, as it
3 were, patchwork quilts of LiveNote material indicates that four hours were
4 granted for the two, as I indicated earlier, and that I used fewer than
5 the number of hours that would go into three days - four days. Four days,
6 I'm sorry. Four days were awarded. I've just repeated the same mistake I
7 found in the record - and that I used fewer than three days, so I would
8 have --
9 JUDGE WALD: So basically you want 5.5 hours?
10 MS. SOMERS: Yes. I just want -- the five point -- yes. Just to
11 let you know how we derived at those, so that if you go back and look at
12 the record. Thank you, Your Honour.
13 JUDGE RODRIGUES: [Interpretation] Yes, Ms. Susan Somers. I think
14 that one way of profiting, making the best use of the time, is -- and
15 according to my calculations, you have three hours and fifty-six minutes,
16 that is to say, four hours. But at any rate, I think that we will have to
17 have a motion from the Zigic Defence, the motion that was -- had to do
18 with the list of witnesses, the modified, amended witness list.
19 I think we could take a break at this point, and I'll ask the
20 registry to check the exact times, the exact amount of time you have at
21 your disposal, and perhaps the Zigic Defence will have a chance of
22 organising itself to be able to speak on the motion, to address the
23 motion. So we too will need a few moments to prepare. We need time to
24 organise as well. So I think that a pause will be very welcome, and we
25 can return to the courtroom to discuss these issues, the issues
1 that -- outstanding issues and the motion of Mr. Zigic and other questions
2 which the counsel wish to discuss, to use up this time usefully. So let
3 us now take a half-hour break.
4 --- Recess taken at 10.10 a.m.
5 --- On resuming at 10.54 a.m.
6 JUDGE RODRIGUES: [Interpretation] Please be seated.
7 The first question is the time for the cross-examination.
8 Ms. Susan Somers, can you see and check through the transcripts
9 again? There really was some confusion between days and hours. There was
10 some confusion.
11 From the standpoint of organisation, there should be about three
12 days for Kvocka and one day for Radic. After that, we checked the number
13 of hours exactly and we arrived at the following conclusion: that is, that
14 Mr. Kvocka, the examination-in-chief took 11 hours and 59 minutes, that is
15 to say, 12 hours; the cross-examination of Mr. Radic took two hours, but
16 there were some questions and -- yes, Madam Judge Wald has just drawn my
17 attention to the fact that we are talking about Mr. Kvocka.
18 So it was the examination-in-chief. Kvocka took 12 hours; Radic
19 took two hours. The time for Radic was one hour, 45 minutes, but we're
20 going to say that it was two hours, which makes a total of 14 hours. With
21 good arithmetic, 12 plus two is 14.
22 The Prosecution utilised 11 hours and three minutes for the
23 cross-examination of Mr. Kvocka; that is to say, they have a credit of one
24 hour, more or less. Therefore, two hours of Radic plus one hour of
25 credit, bearing the mind the fact that we have looked at the totality of
1 the two - there we have it - it makes three hours. That is what I already
2 said. Therefore, three hours for the cross-examination of Mr. Radic, that
3 is the time that you have at your disposal.
4 Now we come to the second matter, the second point, which is the
5 motion by the Defence of the accused Mr. Zigic.
6 Mr. Stojanovic, you have the floor. Please proceed.
7 MR. STOJANOVIC: [Interpretation] Your Honours, with the Court's
8 indulgence, I should like to expand that item of the agenda - of course,
9 it is up to you to decide whether I may or may not - but the first point
10 will be the revised list. As you see, there were some revisions, not too
11 great, which were the consequence of our investigations in the field and
12 the will of the people to testify.
13 We cannot choose our witnesses. Witnesses are people who heard or
14 saw something, regardless of whether they are Muslims, Serbs, whether they
15 like Zigic or don't like Zigic, and that is where our problem lies.
16 We also opted for witnesses/victims who do not wish to testify,
17 but we have no choice. We're either going to call those who committed
18 that crime, and we consider that Zigic did not consider the crime - this
19 means that we will have to call the murderers who are still at liberty -
20 or we are going to call the surviving victims who saw everything happen.
21 They are the witnesses of the Prosecution which have been put forward
22 earlier but which did not respond to the call for them to come and
24 With respect to this list, I would like, first of all, to address
25 an important matter: the question of the testimony of Mr. Zigic himself.
1 We have assessed that we probably will not have sufficient time to
2 hear his testimony. That is the result, in part, of the fact that we
3 added some witnesses later on; but it is also the result of the fact that
4 in the course of our four weeks, three days will not be working days
5 because two days are a holiday and one day is the Plenary meeting of this
6 Court. On the other hand, we think that his testimony could bring some
7 positive points but also some negative ones as well. So taken as a whole
8 and looking at it as a whole, it will be something that will neither
9 assist us nor hinder us.
10 So instead of that, we propose that the Trial Chamber permit us to
11 have Zigic make a statement along the lines of 84(B), that is to say, not
12 in the capacity -- I'm sorry, 84 bis, Rule 84 bis, not in the capacity of
13 a witness but in the capacity of an accused. That will last a shorter
14 time and will not deprive the Court of the chance to hear Zigic or deprive
15 Zigic the chance of saying what he wishes to say before this Tribunal.
16 In the list that we tendered, we give the witnesses according to
17 the order in which we expect to call them at this trial. For the first
18 week of trial, I think we shall be able to call six -- the first six
19 witnesses from the list.
20 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic, I apologise for
21 interrupting, but perhaps we could organise matters in a different way, if
22 you permit. We have your motion, and your motion raises six
23 issues. The first -- five issues. The first is Witness DD6, DD4, and
24 DD7, who, in principle, according to you, should testify in closed
25 session. I'm just identifying the points and then we'll go back to them
1 one by one.
2 The second item was Witness DD8, who has asked to testify with a
3 pseudonym and voice and image distortion.
4 The third item is Witnesses DD1, DD2, DD5, and DD3, who wish to
5 testify in closed session.
6 A fourth point: Witnesses that you already mentioned initially by
7 the Prosecution will be appearing -- and you are asking that they be
8 called to appear by the Chamber.
9 And a fifth point would be witnesses -- that the witnesses be
10 heard by videolink.
11 Perhaps we could take the third point, because in principle, the
12 first and the second, with respect to the protective measures for
13 Witnesses DD6, 4, and 7, and DD8, would not, in principle, present a
15 Ms. Susan Somers, would you like to raise a matter?
16 MS. SOMERS: I would like to let the Chamber know that the
17 Prosecution has not been provided with any identifying information about
18 these pseudonym witnesses, so our ability to comment on anything today is
19 somewhat hampered, and of course we would appreciate very much the
20 identities and enough identifiers for us to make an intelligent response.
21 JUDGE RODRIGUES: [Interpretation] Yes. Perhaps, Ms. Somers, we
22 could go into private session for Mr. Stojanovic to reply, but we can
23 continue in open session first and then we'll come back to that question
24 in private session. Thank you, anyway.
25 Mr. Stojanovic, the questions that we need to discuss, and we
1 would like to hear your opinions on, are the following: the question with
2 respect to closed sessions, that is to say, for Witnesses DD1, 2, 5, and
3 3. Afterwards we'll see.
4 Let's look at it in general terms and go into the specifics later
5 on. For the 20th of February and the Status Conference, the Chamber
6 recalled that it was frequently possible to divide the examination of
7 protected witnesses with respect to having one part of the testimony heard
8 in open session and, if necessary, with voice and image distortion, and
9 the second portion be heard in private session. Now, to make a
10 concession, and for purposes of having the public character of the
11 proceedings, and also protecting the witness as well, we can organise
12 testimony in the following way: to have it in part in open session and the
13 other part in a more protected form.
14 So the question is: Would you be available and ready -- would you
15 be willing to comply with the following solution, keeping in mind the
16 reasons for which protective measures have been asked. I don't know if
17 you can give us an answer, Mr. Stojanovic, in open session, or would you
18 like us to move into private session to give your response?
19 MR. STOJANOVIC: [Interpretation] Your Honours, we can do this in
20 open session. We're not going to mention any names. And I am an advocate
21 of having as many witnesses appear as possible without protective
23 In this case I am asking the Trial Chamber's assistance, and you
24 will be able to assess the situation with the following witnesses and
25 perhaps adopt some of the measures that I have put forward, whether all of
1 them or only some of them. But it is up to me to present the situation as
2 is it stands. I am referring to item 3 of the agenda that you mentioned,
3 that is to say, Witnesses 1, 2, 5, and 3.
4 The first three witnesses are exceptionally vulnerable people;
5 that is to say, they are not only witnesses but victims as well. The
6 first two spent their whole time in Keraterm, throughout its duration.
7 The third was both in Keraterm and Omarska, and they find no place for
8 themselves either in the Federation. They are being persecuted there, and
9 I don't think they would have a much better time in Republika Srpska
10 either. All their property has been destroyed and they have asked that
11 after this testimony they be dislocated, that is to say, relocated to
12 third countries, in a third country.
13 As things now stand in the present Bosnia and Herzegovina, as I
14 have been told - and I personally have had occasion to examine their
15 situation - we cannot ensure a safe and secure life for them either in the
16 Federation of Bosnia-Herzegovina or in Republika Srpska. We could not
17 guarantee that anywhere. And it would be a highly unpopular measure
18 amongst the members, not only of the Muslims but the Serbs as well, if
19 people heard that they had come to the Tribunal to testify for the
21 As far as the fourth witness is concerned within this item on the
22 agenda, DD2, he is also an individual of Muslim ethnicity who spends most
23 of his time in Republika Srpska, which is where he resides. But he works,
24 he is employed, on the territory of the Federation. So once again, he is
25 afraid that he would lose his job, and that job is his sole source of
2 So those, then, are the reasons for which we should like to be
3 able to offer them adequate protection, and I leave it to the Trial
4 Chamber's discretion to assess what adequate protection means and
5 therefore assist us in our defence. That is what I have to say on that
6 item of the agenda.
7 JUDGE RODRIGUES: [Interpretation] Yes. Perhaps we can hear
8 Ms. Susan Somers with respect to that particular item and then go on to
9 the other items and matters in hand.
10 Ms. Somers, what is your opinion thereof?
11 MS. SOMERS: Your Honour, if it concerns matters of relocation and
12 issues like that, that is something which is not certainly within our
13 bailiwick; it's not within our province to discuss. There are other
14 avenues down which to go for that.
15 In terms of whatever measures are necessary which have been
16 applied to similarly situated witnesses, be it all the protective measures
17 of pseudonym, facial and/or voice distortion, then on those issues we
18 certainly would agree to those measures. We do not advocate closed
19 session except as to identifying information, as has been the practice
20 during the course of the cross that I have seen since I've been here.
21 If the Chamber is limiting the question just to these particular
22 witnesses, I do want to clarify, if I may, through the Chamber, to my
23 learned counsel opposite, that DD6, who was originally on a list, is no
24 longer on the new revised witness list? If that could be made clear, it
25 would help us. I think the Chamber read the name DD6 in one of its
12 Blank page inserted to ensure pagination corresponds between the French
13 and English transcripts.
1 earlier pronouncements, and I don't see it on the list.
2 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Stojanovic. Can you
3 help us?
4 MR. STOJANOVIC: [Interpretation] Of course, Your Honour. His name
5 was disclosed earlier on and he was present on all previous lists, but
6 subsequently he asked for protection. It is the witness -- I don't want
7 to mention his name, but he was Witness 6, and at the end of the text it
8 said that we would like to suggest the pseudonym DD6 for him. He was on
9 our previous lists. He was one of the guards in Keraterm who was there
10 during the events and the period mentioned in the indictment. So that is
11 why he has asked for protective measures, especially what we call safe
13 JUDGE RODRIGUES: [Interpretation] Okay. Ms. Susan Somers.
14 Thank you very much, Mr. Stojanovic.
15 Ms. Somers.
16 MS. SOMERS: I see the listing is apparently by a real name, and
17 there's -- it's perhaps a rather atypical way of giving a protected status
18 to a witness on a list. I apologise if that was not clear to us. I think
19 on any of these other matters, Your Honour, we'll simply stand by the
20 position that whatever matters that Chamber deems are necessary to ensure
21 physical protection here, and to the extent it can there, wherever "there"
22 is, other than a complete closed session, we certainly support.
23 JUDGE RODRIGUES: [Interpretation] Very well. Let us now move on
24 to item 4, or the fourth point. The witnesses cited was by the
25 Prosecution, and now the Zigic Defence is asking that they can -- may be
1 allowed to appear on their behalf. The Chamber would like to hear the
2 reasons for which the Defence of the accused Mr. Zigic is requesting these
3 three people to be called by the Chamber, and why, by the Chamber.
4 MR. STOJANOVIC: [Interpretation] Your Honours, I think that I will
5 repeat what I said at the beginning. There was a fourth one there too,
6 but by your decision we adopted the transcript of his testimony in another
7 case. So that case is -- that item is no longer on the agenda. As I
8 said, the Defence is not in a position to choose its witnesses. The
9 witnesses are those who heard and saw matters relating to the indictment.
10 We, of course, do not like having to call witnesses which do not have
11 friendly sentiments towards my client, witnesses who did not even agree to
12 come when called by the Prosecution, and therefore even less chance of
13 coming when requested by the Defence.
14 Ms. Brenda Hollis, sometime last autumn, I asked her to help me.
15 I asked Ms. Hollis to help me to have contact with these witnesses.
16 Ms. Hollis did so wholeheartedly. She enabled me to have contact, but she
17 was told by them that they did not wish to contact the Defence team, the
18 lawyers of the Zigic Defence team, or to have anything to do with Defence
19 attorneys at all. We checked through the competent authorities in
20 Prijedor municipality whether they were on the territory where they in
21 fact were to begin with, but the authorities sent us a document showing
22 that they had been -- that they had left, that they were no longer
23 residing on that territory.
24 From the testimony given to the Prosecution by them and which the
25 Prosecution disclosed to us, we see that they do have relevant, pertinent
1 knowledge to the facts and circumstances which form part of the indictment
2 against Mr. Zigic.
3 Nothing remains for us but to call those people. We cannot
4 conjure up any other witnesses, people who were not there. So if the
5 witnesses are Muslim and if he is hostile, there is nothing we can do
6 about that. We cannot pick and choose our witnesses. We have no better
7 witnesses. We can just select from amongst the people who were there and
8 heard and saw something. So we ourselves cannot ensure the presence of
9 those witnesses. We cannot compel the witnesses to come to court.
10 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic, when you are
11 asking the Chamber to call the witnesses, do you have in mind Rule 98 of
12 our Rules of Procedure and Evidence? Is that what you're referring to and
13 basing your statements on, or some other means? Are you referring to Rule
15 MR. STOJANOVIC: [Interpretation] Your Honour, we do not wish to
16 insist on compelling people to come here who have had to suffer many
17 trials and tribulations in their lives so far. However, we have no other
18 option. We must propose that people who saw the occurrences and events
19 which Mr. Zigic is being charged with, that they come.
20 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic, have you
21 finished what you wanted to say?
22 MR. STOJANOVIC: [Interpretation] Yes, I have, Your Honours.
23 JUDGE RODRIGUES: [Interpretation] Thank you.
24 Ms. Susan Somers has the floor.
25 MS. SOMERS: Normally, Your Honour, in order to exhaust all
1 remedies at trying to command the presence of a witness, there would have
2 to be a showing of an order to appear on behalf of a party, in other
3 words, a subpoena or whatever term, order, has not --
4 JUDGE RIAD: Excuse me. We can't hear anything.
5 MS. SOMERS: I'm sorry. Can you hear me now?
6 JUDGE RIAD: No. For the last half hour, it has been a problem.
7 I don't know if the others are suffering like me. It applies to the
8 French and English at the same time, in my case.
9 MS. SOMERS: Shall I try again, Your Honour? Do you hear me?
10 JUDGE RIAD: Yes, now I can hear you.
11 MS. SOMERS: Thank you. I'll start again.
12 JUDGE RODRIGUES: [Interpretation] Yes, proceed, Ms. Susan Somers.
13 MS. SOMERS: Thank you very much.
14 There has been no showing by Mr. Stojanovic in the form of a
15 motion for issuance of any particular order or subpoena, whatever term is
16 being employed, to attempt to command, on behalf of the Defence, the
17 presence of these particular witnesses. I think that -- and certainly
18 there has been adequate time to have sought such an order, having sought
19 other orders from this Chamber which have already been issued.
20 It is unclear if these individuals are even aware that they have
21 been listed. I would urge the Chamber to insist on a proper exhaustion of
22 remedies for a showing that these people, in fact, will not at this time
23 be willing to come in. I would hesitate to see the Chamber employ Rule 98
24 powers in the absence of such a record showing.
25 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic.
1 MR. STOJANOVIC: [Interpretation] Your Honours, it is precisely for
2 the reason which my learned friend has just mentioned, that is, that these
3 people need to be treated carefully. I'm not insisting on their being
4 subpoenaed or brought under duress. I do hope that some other way out
5 will be found. I'm simply seeking the assistance of the Chamber.
6 These are people who saw something. There are no others apart
7 from those whom we are already calling. We simply can find no other
8 witnesses. We can, of course, file such a request. There is plenty of
9 time because they are at the end of the list and that is why we did that,
10 because we hoped that we would find out what might happen with them in the
12 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Stojanovic, it is quite
13 true that the Chamber can, within its possibilities, help you. But the
14 Chamber is not here to help you, the Chamber is here to conduct the
15 hearing. As you know, there is a system that we have here. Perhaps this
16 is not the system that you are accustomed to, and neither am I. But it
17 has to conduct its case, and the Chamber then has a certain margin of
18 discretionary powers to call its own witnesses, but not the Defence
19 witnesses, not the witnesses for the Defence. So we cannot really operate
20 as your consultants, if I may put it that way. We are not your
21 consultants. You have to take the decision and you have to decide and you
22 have to submit your motions and applications to the Chamber, which can
23 then rule upon them.
24 Be that as it may, we have your motion and we shall consider it.
25 But we are not here as a body of consultants to help the Defence, we are a
1 Chamber which makes decisions. Right. We shall, nevertheless, consider
2 the issue.
3 I should like to move on to the next question, that is, the
4 videolinks, testimony by video conferencing.
5 At the Status Conference of the 20th of February, the Chamber
6 decided that -- was informed that these witnesses did not want to come to
7 The Hague because, I don't know, whether they were afraid of flying or
8 others had already been charged by the Tribunal or for some third reason.
9 So the Defence requests that these three witnesses be examined by video
10 conferencing without, however, specifying the reasons for that request.
11 Could you now explain why, Mr. Stojanovic, are you asking for this
13 MR. STOJANOVIC: [Interpretation] Your Honours, as you see, we have
14 expanded the list of our witnesses who could testify by videolink.
15 In addition to one who had been charged, another one has emerged,
16 and I can say something about them. These are persons who were indicted
17 under the first original indictment which indicted Mr. Zigic, or rather
18 there were two indictments. When I talked to those persons, I concluded
19 that they were quite ready to speak about something that would confirm the
20 charge; that is, their testimony would, in a manner of speaking, be a
21 confession to what they are being charged with. That is why, Your
22 Honours, they simply will not come here to testify.
23 The first witness on that list for videolink is new, and here we
24 were led not only by the refusal of the witness to come here but also by
25 the suggestion of Your Honour, Mr. President, that those who are
1 testifying for not more than 15 or 20 minutes could, indeed, be examined
2 by videolink. It is a circumstance of considerable relevance, but his
3 testimony would not last more than half an hour, if that much. Perhaps
4 not more than 15 minutes altogether.
5 And there is -- so the last one, the one who is afraid of flying,
6 I have nothing to add there. And yet another witness who was initially on
7 the list of the witnesses who would come to The Hague, but the
8 circumstances there are, indeed, such, that is, the relationship with
9 Mr. Zigic, the relationship with his neighbours, and we already have other
10 witnesses to testify about that. So that his testimony would merely
11 complement those other testimonies and would take very little time, so
12 that we really do not see -- to have alongside three character witnesses
13 who would come to The Hague, we also bring yet another one, that is, the
14 fourth witness, to merely complement the testimonies of those other
16 Needless to say, we tried to comply with the wishes of those
17 witnesses, even though we endeavoured to reassure them and explain that it
18 will be, of course, advisable for all of them to testify here. Thank
20 JUDGE RODRIGUES: [Interpretation] And these witnesses were ready
21 to come and testify in person, Mr. Stojanovic?
22 MR. STOJANOVIC: [Interpretation] Excuse me. Which one?
23 JUDGE RODRIGUES: [Interpretation] You said -- you said -- you said
24 that you tried to explain that it would be more advisable to give one's
25 testimony here and -- excuse me, it is my mistake. I didn't understand
1 you. Even after they heard your explanations and heard that it would be
2 preferable for them to come, they again refused to come; is that so or ...
3 MR. STOJANOVIC: [Interpretation] Your Honours, I always urged the
4 witnesses to come here because I think that it always carries more weight
5 than when they testify by videolink. But they would not accept my
6 proposal even though I tried to reassure them and tell them that nothing
7 bad, nothing untoward, would happen to them here.
8 JUDGE RODRIGUES: [Interpretation] Very well. Thank you.
9 Ms. Somers.
10 MS. SOMERS: Because of our position, Your Honour, that we
11 certainly saw videolink as being preferable to the use of what was termed
12 deposition, it is not that we think videolink is not a viable tool. We
13 have to indicate to the Chamber, however, that if a witness is going to
14 give testimony about his or her culpability from afar on videolink or from
15 here with safe conduct, which I assume is the norm, as has been the
16 practice by most of the Defence that I have seen here, I don't know that
17 there's any real justification for use of videolink when the other
18 practice has been the preferred and I think is probably the rule.
19 I'm afraid I have to leave this in the Chamber's hands, but I find
20 it a bit contradictory that someone will potentially incriminate himself
21 from afar as opposed to here under safe conduct. And perhaps the motion
22 for safe conduct could be re-examined in that case. It does seem a tad
23 surreal. But as the Chamber sees fit. We do not want to be seen to risk
24 the ability of the Defence to have its witnesses testify. But I think
25 that it does present some rather unusual side circumstances.
1 At some point, Your Honour, because there is another
2 witness-related matter that we had addressed earlier when Mr. Stojanovic,
3 I believe, was not here about two individuals on the witness list, we will
4 need to ask for a private session. Thank you.
5 JUDGE RIAD: Excuse me, Ms. Somers, what did you mean by "side
6 circumstances," it would produce "side circumstances"?
7 MS. SOMERS: Oh, because of the concerns, Your Honours, about --
8 the fears of coming here under closed -- under, what is the term, safe
9 conduct, I think that there's always some notion that it's not honoured,
10 which I think is not accurate. And it concerns me that that's the
11 feedback that we get. This Chamber's orders have always been adhered to
12 and safe conduct has already been very much the issue. But it was raised
13 a couple of times and it concerned me, and I think that there is a notion
14 out in the territory of the former Yugoslavia that videolink is the safer
15 method, and I do not understand it, frankly. It concerned me.
16 JUDGE RIAD: Thank you.
17 MS. SOMERS: May I inquire of the Chamber. Do the Kos and Kvocka
18 Defence teams still have videolink witnesses outstanding that, if the
19 Chamber did order videolink, we would be able to tack on, essentially, so
20 there would only be perhaps one requirement of setting up for video?
21 JUDGE RODRIGUES: [Interpretation] Concerning this last question,
22 the Chamber tries that as we hear -- we shall try, as these cases come up,
23 we shall try to put them all together to set aside a week or I don't know
24 how many days to cover the videolink for Kvocka, for Kos and Kvocka, so on
25 and so forth. So we shall try to put all these issues about videolink, we
1 shall try to put all these issues together, resolve them for once and then
2 decide on this matter.
3 Mr. Stojanovic, there are some suggestions which come from the
4 Prosecution. Would you like to say what you think of them?
5 MR. STOJANOVIC: [Interpretation] Your Honours, just one
6 explanation or, rather, a reminder concerning the persons who figured in
7 the indictments before.
8 If you remember, Mrs. Louise Arbour, the then Prosecutor, she
9 renounced that and she said that it was not because of the lack of
10 evidence, but just in the case of the process of economy, to cut down the
11 number of the accused and in order to indict high-ranking personalities
12 without, however, anticipating -- precluding or anticipating possible
13 future prosecution of these persons. But we think that if they came to
14 The Hague, they would be testifying under the influence of fear and,
15 therefore, perhaps less credible. But I do not think anyone could force
16 them to come here. Thank you.
17 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Stojanovic, you
18 mention -- you say "make them come." But did you consider with them the
19 possibility of safe conduct.
20 MR. STOJANOVIC: [Interpretation] Yes, indeed, Your Honour. Of
21 course, yes. The Court has resorted to that several times and it always
22 went off very smoothly. But is it that they do not trust me or somebody
23 else? I do not know. But they are refusing still.
24 JUDGE RODRIGUES: [Interpretation] Perhaps they don't trust the
25 safe conduct and that could be the only thing they do not trust.
1 Right. I think we have covered now all the issues we had on the
3 Mr. Stojanovic, do you have any other matters that you wish to
4 raise? Is there anything else?
5 MR. STOJANOVIC: [Interpretation] Yes, Your Honours, and that has
6 to do with your decision on the graphological expertise of the witness
7 Husein Ganic. Yes, of course, we shall comply with the decision and that
8 is, in fact, what we had asked for. But we should like to see if it would
9 be possible to simplify the matter.
10 In our first list, we already voted Professor Zivojin Aleksic as
11 our expert witness, and one of his tasks would be to verify the
12 authenticity of the statement of the witness Husein Ganic which is in
14 In a manner of speaking, the analysis has already been performed;
15 however, it was done on the basis of photocopies. The graphologists say
16 that such analysis is, perhaps, not as -- does not carry the weight that
17 the analysis of originals carry.
18 The analysis was done on the basis of a photocopy of statements of
19 Husein Ganic, statements made to the Prosecution. A photocopy is the
20 witness' statement to the Prosecution. We do not doubt that it has
21 Mr. Ganic's original signature. We received from the Prosecution another
22 statement, the alleged statement of Husein Ganic, that is, his statement
23 given to AID, that is, the Agency for Investigation Documentation, sector
24 in Sanski Most. And this has a different signature of Mr. Ganic and our
25 expert witness says that that is not his signature. Perhaps we could
1 simplify the whole procedure and ask the expert witness to look at the
2 original documents and thus supplement his finding, or, if the Prosecution
3 does not object, to accept the analysis made on the basis of photocopies.
4 And let me remind the Court: In more sophisticated cases of graphological
5 analysis, it is important that one needs to use a magnifier to see the
6 indentations, that is, the pressure against the paper, against the paper
7 by the writer, but photocopies do not show these, and therefore this could
8 be a matter to be challenged.
9 So my suggestion is that our expert witness comes here a day
10 earlier and then -- so as to analyse the original documents and then to
11 supplement either his statement in writing or testify -- or appear before
12 the Court and testify verbally about the additional findings.
13 JUDGE RODRIGUES: [Interpretation] Ms. Somers.
14 MS. SOMERS: This is the first, Your Honour, that I have heard
15 that there exists an expert statement that has been made, and I just
16 wanted to make inquiry because of the requirement of Rule 94 bis that the
17 statement be served or filed no later than 21 days before the witness is
18 expected to take the witness stand. To date, we have received no expert
19 witness statement to which we could then voice our objections or not.
20 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic.
21 MR. STOJANOVIC: [Interpretation] Your Honours, we shall respect
22 the time provided and our expert witness will come towards the end. But
23 there is a different judicial decision which says that the expert
24 testimony will be done by another person. On the other hand, the
25 Prosecution does not give us an insight into the originals. If they
1 provide us with a photocopy of the statement, they must provide us with
2 the original or let us see the original as well. I don't know what the
3 reasons are, because they are seeking an expert opinion of the original.
4 And I think that by cooperating with the Prosecution, we could nonetheless
5 solve the problem, but we did not find a sympathetic ear with the
7 So in view of the circumstances, I cannot come up with an expert
8 finding, and in view of the fact that the Court has already taken a
9 decision, and we should nonetheless need to take a look at the original
10 handwritten documents.
11 JUDGE RODRIGUES: [Interpretation] But at any rate, Mr. Stojanovic,
12 there's a difference between an expert and a witness, if I can call it
13 that, a fact witness. Expert witnesses always present reports, and one
14 must bear that in mind.
15 I don't know if Ms. Somers wishes to respond to the points raised
16 by Mr. Stojanovic and his position with respect to the Prosecution's
17 position vis-à-vis the originals, the original documents. Do you wish to
19 MS. SOMERS: It is unclear to me, Your Honour, whether or not
20 Mr. Stojanovic is referring to -- which statements he is in fact referring
21 to. If they are statements not in our possession, then we --
22 JUDGE RODRIGUES: [Interpretation] I think they are the preliminary
23 declarations of the witness taken by the investigator, the witness to the
24 investigator; is that right?
25 MR. STOJANOVIC: [Interpretation] That's right. The witness
1 statements presented to the Defence during the disclosure process.
2 MS. SOMERS: The ICTY-taken statements.
3 JUDGE RODRIGUES: [Interpretation] No. By the investigators of the
4 Tribunal and the OTP.
5 MS. SOMERS: OTP. I'm terribly sorry. I meant that acronym. I
6 am not in a position at this moment to address that. I would have to
7 inquire of the investigator or his or her successor to know the status of
8 that document.
9 JUDGE RODRIGUES: [Interpretation] Yes. Anyway, Ms. Susan Somers,
10 you are apprised of the situation.
11 Mr. Stojanovic, you have just heard the response by Ms. Somers.
12 Perhaps you could find a common ground and find a place and a chance to
13 discuss the issue. I think that that is the suggestion that the Trial
14 Chamber can give you at this point in time.
15 Have you completed what you wanted to say, Ms. Somers?
16 MS. SOMERS: Yes, Your Honour. On that issue I'll refine. It's
17 only the other issue of the other two.
18 Excuse me, Your Honour. May I ask for one clarification so it is
19 actually stated overtly on the record? Because it was a little bit
20 indirect. Is Mr. Stojanovic telling the Chamber and the Prosecution
21 affirmatively that Zoran Zigic will not take the witness stand? Is that
22 our correct understanding of his position now? Will not testify on his
23 own behalf and subject himself to cross-examination?
24 JUDGE RODRIGUES: [Interpretation] What I understand, but
25 Mr. Stojanovic can put me right, is that Mr. Zigic will not testify; he
1 will be making a statement according to the Rules of 94 bis, according to
2 Rule 94 bis.
3 Is that so, Mr. Stojanovic?
4 MR. STOJANOVIC: [Interpretation] Yes, you understood me very
5 precisely, Mr. President.
6 MS. SOMERS: That is 84 bis, Your Honour.
7 THE INTERPRETER: Rule 84 bis. The interpreter corrects herself.
8 MS. SOMERS: Inasmuch as this is the first we have been informed
9 of this, and we are now told that he will not subject himself to
10 cross-examination, I would only ask for an opportunity to consult with our
11 own legal to get a sense of what the jurisprudence is on that provision,
12 and should I find any issues that I think should be brought to the
13 Chamber's attention concerning the Prosecution's --
14 THE INTERPRETER: Can you slow down, Ms. Somers, please.
15 MS. SOMERS: [Previous translation continues] ... I would ask for
16 permission to inform the Chamber and counsel by memo or by a motion.
17 JUDGE RODRIGUES: [Interpretation] Very well. Yes. Just a moment,
19 [Trial Chamber and legal officer confer]
20 [Trial Chamber deliberates]
21 JUDGE RODRIGUES: [Interpretation] What we are going to do now is
22 the following: We have a series of matters on which we can render an oral
23 ruling, and as to the others, we shall respond in writing. So the Chamber
24 will render its decision first with respect to the question we denoted as
25 items 1 and 2, or points 1 and 2, and also with respect to item 3. That
1 is to say, we are going to give a written ruling, a written decision, on
2 the question of the appearance of witnesses quoted and also with respect
3 to the videolink conferences and the protective measures in that regard.
4 And now the ruling of the Chamber. The Defence requested the use
5 of pseudonyms and voice distortion and image distortion for eight of its
6 witnesses, having the following pseudonyms, DD1 to DD8, and requests that
7 amongst those eight witnesses, three of them should benefit safe conduct.
8 They are DD4, DD6, and DD7. They have asked for safe conduct for those
9 witnesses, and that the other four witnesses be heard in closed session:
10 DD1, DD2, and DD3, and DD5. The Prosecutor did not oppose these
11 protective measures being granted.
12 In general terms, the Chamber would like to recall that the
13 Defence must communicate the identities of all the witnesses to the
14 Prosecutor, that is to say, those quoted under the pseudonyms DD1, DD2,
15 DD3, and DD4 - no, DD5 - DD7, and DD8. Other private-session hearings,
16 closed-session hearings, are accorded, exceptionally, the principle being
17 that we wish to have open sessions and public proceedings, the public
18 character of the trials. It is frequently possible to divide up the
19 examination of protected witnesses so that at least part of their
20 testimony is heard in open session, if necessary, with voice distortion
21 and image distortion on the screen.
22 The Chamber partially allows the motion of Mr. Zigic and says that
23 the witnesses quoted in the Zigic motion under the pseudonyms DD1 to DD8
24 will be testifying with a pseudonym and will benefit from all the
25 protective measures that that implies, and will be heard in open session,
1 as far as that is possible, with voice distortion and image distortion.
2 The two last combined measures, with the use of a pseudonym, will
3 suffice -- usually suffice to ensure the protection that the witness
5 The Chamber, with respect to the Zigic motion, grants safe conduct
6 for DD4, DD6, and DD7.
7 Those, then, are the rulings of the Chamber with respect to those
8 issues. With respect to the others, we shall be providing a written
10 Yes, Mr. Stojanovic.
11 MR. STOJANOVIC: [Interpretation] Your Honour, I should just like
12 to recall that with respect to the written ruling, we had the problem of
13 Dr. Barudzija, who will be testifying in one part as a witness to the
14 facts and in another as an expert witness. So may we hear your position
15 on that issue, please, before we discuss the rest?
16 JUDGE RODRIGUES: [Interpretation] Very well. We are going to make
17 that decision as soon as possible so that you have all the decisions of
18 the Trial Chamber that you need in order to prepare for your Defence
19 case. You have already prepared part of it, I take it.
20 Ms. Susan Somers.
21 MS. SOMERS: Your Honour, I would just like to make one
22 clarification for the record that concerns me a little bit.
23 I indicated to the Chamber that we had not been given the
24 identities of DD4 and DD7, and of course our discussion earlier about the
25 use of safe conduct as opposed to videolink is premised on the fact that
1 we know who the witnesses are. So the Chamber, having ruled, we would
2 just like to reserve any right to revisit any issues that may arise when
3 the identities of these two unknowns are revealed to us. I think perhaps
4 the Chamber would catch my drift. But once I know who these people are,
5 if there is any issue, I will immediately inform the Chamber of this
6 issue. I'm simply operating in the dark right now. So safe conduct is
7 certainly within your hands, but I don't know exactly to whom we're giving
9 JUDGE RODRIGUES: [Interpretation] Very well, Ms. Susan Somers. I
10 understood that you detected a peculiar way of linking up the pseudonyms
11 to the identity of the witnesses on the list, that you had this and that
12 you actually knew the identity of the witnesses, that you did this through
13 some sort of divination. But we shall take into account what you said and
14 the reservations you made, and either Mr. Stojanovic will disclose the
15 identity of the witnesses or he will not give the identity, and then when
16 these witnesses are presented, you can raise the question. But I think it
17 would be a better idea if Mr. Stojanovic were to communicate to you the
18 identities of Witnesses DD4 and DD7. Would that be agreeable for you?
19 MS. SOMERS: We would have to have it, Your Honour, in order to
20 prepare for cross-examination, so yes, of course.
21 Actually, except for number 6, DD6, we have no identifying
22 information as to any of the DD witnesses, and we would ask -- I know the
23 Chamber has already made this order, but I think the sooner the better for
25 JUDGE RODRIGUES: [Interpretation] Right, Ms. Somers. So we stand
1 by this decision, in principle, with this reservation that you mentioned.
2 Mr. Stojanovic, you will disclose the identity of the witnesses
3 and then we shall see.
4 We shall now adjourn this session. I do not know whether there
5 are any other matters that counsel wish to raise.
6 Yes, Ms. Somers.
7 MS. SOMERS: Yes, Your Honour. We had requested a few minutes of
8 private session to address two witnesses whose names were raised the other
9 day in private session as well, and I think we do need to resolve that.
10 JUDGE RODRIGUES: [Interpretation] Very well. We shall now go into
11 privet session.
12 [Private session]
13 Page 9406 redacted – private session
13 Page 9407 redacted – private session
3 [Open session]
4 JUDGE RODRIGUES: [Interpretation] Right. So we are in open
5 session once again just to repeat that there are no other issues, no other
6 salient issues today. Therefore, we shall adjourn and await the next
7 opportunity when we shall meet here to proceed with Mr. Zigic's defence.
8 The session is adjourned. Successful work meanwhile.
9 --- Whereupon the hearing adjourned at 12.10 p.m.,
10 to be reconvened on Monday, the 26th day of March,
11 2001, at 9.20 a.m.