Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9364

1 Thursday, 15 March 2001

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

6 morning.

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.

Page 9365

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

Page 9366

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

Page 9367

1 day.

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.

Page 9368

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

Page 9369

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

17 that.

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

23 proposing?

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

Page 9370

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,

12 rather.

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,

18 please.

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

Page 9371

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

Page 9372

1 you.

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

14 Defence.

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,

Page 9373

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

Page 9374

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

Page 9375

1 Honour.

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

10 now.

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

Page 9376

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

9 cross-examination.

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

Page 9377

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

7 Somers.

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.

Page 9378

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

Page 9379

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

Page 9380

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

23 testify.

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.

Page 9381

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

Page 9382

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

14 problem.

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

Page 9383

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

22 measures.

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

Page 9384

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

20 Defence.

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

Page 9385

1 livelihood.

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

Page 9386

1

2

3

4

5

6

7

8

9

10

11

12 Blank page inserted to ensure pagination corresponds between the French

13 and English transcripts.

14

15

16

17

18

19

20

21

22

23

24

25

Page 9387

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

12 conduct.

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

Page 9388

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

Page 9389

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

14 98?

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

Page 9390

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.

Page 9391

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

11 meanwhile.

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

Page 9392

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

12 measure?

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

Page 9393

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

15 three.

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

19 you.

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

Page 9394

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.

Page 9395

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

Page 9396

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.

Page 9397

1 Right. I think we have covered now all the issues we had on the

2 agenda.

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

13 dispute.

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

Page 9398

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

Page 9399

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

6 Prosecution.

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

18 respond?

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

Page 9400

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

Page 9401

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,

18 please.

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

Page 9402

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,

Page 9403

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

4 requires.

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

9 ruling.

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

Page 9404

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

8 it.

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

24 us.

25 JUDGE RODRIGUES: [Interpretation] Right, Ms. Somers. So we stand

Page 9405

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]

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Page 9406

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Page 9408

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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.

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