1 Friday, 7 July 2006
2 [Pre-Defence Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.00 a.m.
6 JUDGE MOLOTO: Good morning, everybody.
7 This is the Pre-Defence conference. I hope we all have a copy of
8 the agenda. We just have to look at the filings that have been made by
9 the Defence.
10 Mr. Milovancevic, just by way of introduction, can I just ask a
11 question? I see that only a few witnesses are mentioned by name. Is
12 there any reason why the rest are not?
13 MR. MILOVANCEVIC: [No interpretation].
14 JUDGE MOLOTO: Can you hold on? I get no interpretation coming
16 THE INTERPRETER: Can you hear the English?
17 JUDGE MOLOTO: Now, I can hear English. Can you start all over
18 again, Mr. Milovancevic? Otherwise it's all lost.
19 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.
20 Yes, indeed, we mention the names of just a few witnesses, and the
21 reason for that is that the Defence, when it compiled the witness list,
22 did not have the possibility of conducting proofing sessions with the
23 witnesses. These are individuals who mostly, and the majority of them are
24 from the Republic of Srpska Krajina, there are warrants out for them
25 issued by the Croatian authorities, some of them have long prison
1 sentences up to them, and they fear for their safety, both here and on the
2 way to the Tribunal. So the Defence quite simply, before talking and
3 interviewing the witnesses, could not assess in the proper way of which of
4 these concerns that these people have are realistic and well founded, but
5 will do so as soon as possible, Your Honour, once we have a chance to talk
6 to these people and after we have the recess -- or during the recess we
7 will be able to contact those witnesses.
8 JUDGE MOLOTO: Okay. Thank you very much, Mr. Milovancevic.
9 Mr. Whiting, do you have anything to say?
10 MR. WHITING: I certainly do, Your Honour.
11 I'm quite taken aback by this course of action that the Defence
12 has taken on. I have to say that it's -- the Defence is trying to
13 accomplish indirectly what it failed to accomplish directly; that is, it
14 was trying to -- repeatedly tried to postpone the start of the Defence
15 case, trying to buy more time, and when it was -- when this was refused
16 repeatedly by the Trial Chamber, what the Defence has done is it has now
17 failed to comply with the Rules, and it is simply indirectly trying to
18 gain more time, trying to postpone the start of the Defence case, trying
19 to prejudice the Prosecution in its preparation of -- in its preparation
20 to deal and respond to the Defence case. This is -- it's unprecedented,
21 it's improper. And it's quite appalling, in our view.
22 The -- what's not clear to me from what Mr. Milovancevic has said
23 this morning is if any of these individuals have actually agreed to be
24 witnesses. If they have not agreed to be witnesses, they are not
25 witnesses and they shouldn't be on the list and the list then is comprised
1 of the six named individuals. And to be clear here, just so the numbers
2 are on the record, there are 53 witnesses on the Defence list. 47 of them
3 are anonymous. We have the names of only six witnesses. The -- if the
4 witnesses have been contacted and have agreed to be witnesses, then they
5 are witnesses and we should know who they are. There is no -- there is
6 nothing in what Mr. Milovancevic has said, nothing, to justify not
7 providing the names to the Prosecution. There is nothing. We will not --
8 we -- this can be done confidentially. We are not suggesting that the
9 names should be public, but there is nothing he has said, whether they
10 have agreed to be witnesses, whether they have these fears about coming to
11 the Tribunal, whether they are not witnesses. We should be entitled today
12 to have their names. Because we were supposed to have their names two
13 days ago. So it's already two days late. And we should have the names
14 today, and in any event, this issue must, in our view, be resolved before
15 the recess. This is not -- we cannot go into the recess without knowing
16 who the Defence witnesses are in this case. It tremendously prejudices
17 the Prosecution in its preparation. It will no doubt result in
18 significant delays once we start up again because the Prosecution, in our
19 view, will have a strong basis for delaying the cross-examinations of
20 witnesses because it will have been prejudiced and not have been able to
22 If I could contrast, just briefly, the approach that the
23 Prosecution took to this issue of delayed disclosure to the approach that
24 the Defence has taken, the Prosecution filed its 65 ter list of witnesses
25 on the 7th of May 2004. On that list were 74 witnesses. Prior to filing
1 the list - prior - the Prosecution sought delayed disclosure for three
2 witnesses, three out of 74. And this was granted. Later, on the 19th of
3 July, 2005, the Prosecution sought to add five witnesses to its list and
4 at the same time, simultaneously, sought delayed disclosure for one of the
5 five. So in total, out of 79 witnesses, the Prosecution sought delayed
6 disclosure for four witnesses. This was at a time, I should say, when the
7 start of the trial was not even scheduled, and was likely to be months if
8 not years away, and in fact, when the Prosecution sought delayed
9 disclosure for the first three witnesses, that was two years before the
10 trial ultimately began. That is in stark contrast to the situation here.
11 Here, the Defence is seeking to delay disclosure of 47 out of 53
12 witnesses. And it's seeking to do so in a context when the Defence case
13 is to start four days from now. So at most, the Defence -- the Defence
14 somehow has to justify why it cannot disclose to the Prosecution today,
15 but somehow it could disclose in a few weeks or in a month, and there is
16 no possible justification for that.
17 Moreover, if you look at the relevant law about delayed disclosure
18 which has been set out by this Trial Chamber in its decision in the
19 Prosecution's motion, in its decision of the 9th of December, 2005,
20 delayed disclosure is justified only in extraordinary circumstances. It's
21 impossible to believe that there are -- that extraordinary circumstances
22 exist with respect to giving the names to the Prosecution, or that they
23 could possibly exist for 47 out of 53 witnesses.
24 The Trial Chamber - this Trial Chamber - in its decision laid out
25 three factors to consider: The likelihood that the witness would be
1 interfered with or intimidated if the identity of the witness were made
2 known to the Defence and the accused was in the context of a Prosecution
3 motion. In this case, there is absolutely no risk that the witnesses, if
4 disclosed to the Prosecution, would be intimidated or interfered with by
5 the Prosecution. There is simply no basis for such an assertion.
6 Secondly, the extent to which protective measures are necessary
7 not just for the individual case but for future cases. That's
8 inapplicable to this case.
9 And third, the length of time before trial in which the identity
10 of the victims and witnesses must be disclosed. And here again, I think
11 that factor weighs strongly in favour of immediate disclosure because we
12 are four days before the Defence case.
13 The fundamental bottom line is that the Defence has not made --
14 has not shown why it cannot disclose these names to the Prosecution, why
15 it would in any way threaten the safety of these witnesses, which it just
16 absolutely will not. And this has never ever been done before. It's been
17 tried once, to our knowledge. In the Oric case, the Defence listed 74
18 witnesses and asked for delayed disclosure of five. It later dropped one
19 of them, so it was delayed disclosure of four of the 74, a far different
20 proportion than what the Defence is seeking here, and the Trial Chamber
21 denied it. Trial Chamber held that the reasons brought forward by the
22 Defence in support of the request for delayed disclosure of the names of
23 the four witnesses are unconvincing and unacceptable. The same is true
24 here. The Defence has not put forward any reason. We would strongly
25 urge, Your Honours, that the Defence be ordered to provide the names of
1 the witnesses today or forgo those witnesses on its list.
2 JUDGE MOLOTO: Mr. Milovancevic, any reply?
3 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour.
4 All the witnesses on the list have been interviewed and they have
5 agreed to come in and testify and we can give the Prosecution a list of
6 all those names if the Trial Chamber so orders.
7 What is terrible is what my colleague has just said. To say that
8 we are obstructing the Tribunal, to say that we are not respecting the
9 Tribunal, without asking and first consulting the Defence to learn what
10 all that was about, is unbelievable, as far as I can see and I'm
11 concerned. My learned friend of the Prosecution says there are no
12 extraneous circumstances which justify the witnesses' concern. Your
13 Honour, in the information media, a piece of information was published
14 according to which the Croatian secret services have penetrated the
15 Tribunal and are controlling the Tribunal. So people fear for their
16 lives. They fear for their freedom. So that is something that you can
17 read about in the information media. So when people hear things like
18 that, I can't tell them whether it's serious -- a serious threat or not a
19 serious threat.
20 But at any rate, the Defence, when it comes to deliberate about
21 protective measures for the witnesses, will have to talk to the
22 witnesses. That's what I talked about. So for those witnesses for which
23 we consider that protective measures should be put in place, we will talk
24 to them, see whether their demands are realistic and, depending on the
25 results of that interview, will propose or not propose protective
1 measures. But to do away with any doubts about the work of the Defence,
2 we will supply the names of all the witnesses before the day ends.
3 And let me say one more thing: My learned colleague of the
4 Prosecution says that on the 7th of May, 2004, he provided a list of
5 witnesses, and that on the 19th of July, 2005, he asked for an extension.
6 So that is the problem, Your Honour, because my colleague had from March
7 to the 7th of May, 2004, to make up a list, whereas we just had seven
8 days, after being at trial, and without the possibility of going to
9 Belgrade to talk to the witnesses. So we did what we could. We had to
10 makeshift in order to adhere to the deadlines which are not feasible for
11 us. But that is the reason. It wasn't that we were attempting to
12 obstruct the Tribunal and out of a lack of respect for the Tribunal. If
13 the Prosecution wants to win his case by hurling accusations of that kind,
14 I don't think he's going to succeed there.
15 JUDGE MOLOTO: You have made a very telling statement about the
16 Tribunal, which I would like you to substantiate. If you are able to give
17 proof of that, can you give us the proof of this Croatian secret service
18 that penetrated the Tribunal and is controlling the Tribunal? Show us how
19 it did that and how it does control the Tribunal.
20 Secondly, I want to say to you, if you had only seven days to have
21 your witness list, then you are doing a disservice to Mr. Martic and he
22 needs to know that. You were given instructions to defend Mr. Martic some
23 time ago, not seven days ago. I repeat what I said at the last sitting of
24 the Chamber: That you got instructions -- I beg your pardon. You're
25 supposed to have started preparations from the day you got instructions.
1 From that day, you must have sought who your witnesses are going to be,
2 interviewed them, and as you rightly say today, you have interviewed these
3 witnesses that you have listed on your list, and yet you have just told us
4 that you have not been to Belgrade since the last session. So you have
5 not interviewed them in the last seven days. You have interviewed them
6 much earlier. So I will not accept any statement that you have had only
7 seven days. You are at every minute, every opportunity, trying to find
8 space to say you are being prejudiced in this case by the Bench, and this
9 Bench is not prepared to accept that. That you must know and know very
10 clearly. If you haven't prepared your defence, then it's about time Mr.
11 Martic did something about it. But I will not accept that you have not
12 been given time to prepare your case for the Defence. You don't begin to
13 prepare a case for the Defence only at the close of the Prosecution case.
14 You prepare your case from day 1 and you continually adjust according to
15 how things pan out in the trial.
16 Now, if as is clear from what you say, you have interviewed these
17 witnesses, and obviously not in the last seven days, it is -- and you say
18 that, in fact, some of them fear for their lives coming to testify, fear
19 for their lives travelling here, it is surprising that you have not made
20 any application for protective measures up until this time. And the
21 question is: If you are going to need such protective measures, when are
22 you going to make such applications and when is that application going to
23 be granted for those witnesses to be on time to testify when you do know
24 that, by order of this Chamber, you are supposed to start testifying --
25 leading evidence next week.
1 MR. MILOVANCEVIC: [Interpretation] Your Honour, of course I do
2 know, and we shall begin on time. There is nothing contentious about
3 that. I don't think you understood me properly. I was just responding to
4 the Prosecution's assertions that he did everything on time, within
5 deadlines. I didn't broach any new subject, I just tried to indicate the
6 realistic positions that the Defence were facing. And that is why the
7 opposite side is attacking us. But we shall begin on the date you told us
8 to begin. The witness will appear.
9 JUDGE MOLOTO: In any case, then I'm just -- the Bench is just
10 telling you that what you call realistic is completely unrealistic because
11 you have not had seven days only to prepare.
12 Now on this point of names of witnesses, the Defence is ordered to
13 provide the Prosecution with a full list of the witnesses they intend to
14 call by 15 minutes after the end of this session. Okay? That disposes of
15 that item.
16 MR. MILOVANCEVIC: [Interpretation] Your Honour?
17 JUDGE MOLOTO: Yes, sir.
18 MR. MILOVANCEVIC: [Interpretation] I do apologise but, yes, we
19 shall do that straight away afterwards, but don't give us a 15-minute
20 deadline, please. We have to type it out, get the names straight. We
21 have all this but it takes time for us to leave the courtroom, reach the
22 Defence room. We'll need more than 15 minutes. Can we say one hour? But
23 I assume we'll get through it before the hour is out but it's just the
24 technical feasibilities of printing out something.
25 JUDGE MOLOTO: You are supposed to have it ready,
1 Mr. Milovancevic. Do you know that?
2 MR. MILOVANCEVIC: [Interpretation] Your Honour, we handed in that
3 list, and said what the witnesses would testify about. All we have to do
4 is to type out the names that we haven't given you which I think -- we
5 think are relevant. So if you want the names, yes, we'll hand the names
7 JUDGE MOLOTO: I can go back to your address this morning where
8 you said you could give the list now. And I'm now not saying now, I'm
9 saying 15 minutes after the session. Isn't that generous compared to what
10 you asked for?
11 MR. MILOVANCEVIC: [Interpretation] Yes, we will abide by your
12 instructions, Your Honour.
13 JUDGE MOLOTO: Thank you very much.
14 The question of the estimated time of testimony, let me just find
15 out from you, Mr. Milovancevic, does this -- is this an estimate of the
16 examination-in-chief only or does it include cross-examination and
17 possibly questions by the Bench, and re-examination? The estimate that
18 you have given for each witness.
19 MR. MILOVANCEVIC: [Interpretation] Your Honour, this is our
20 approximation, which is always an evaluation of how long the
21 cross-examination -- or examination of witnesses will last or, rather,
22 examination-in-chief and how much time the cross-examination will take and
23 the questions from the Bench, so that's just an assessment, a rough
24 estimate, because we haven't had enough experience in this kind of work,
25 so we looked at the time the Prosecution took and tried to achieve some
1 sort of balance and equivalent time. There might be some 92 bis
2 statements put in too, but at present we were faced with the situation we
3 were faced with, and it is as it stands at present.
4 JUDGE MOLOTO: The question about 92 bis, I will raise in due
5 course during this conference. What I did want to get clear, and I do
6 appreciate, Mr. Milovancevic, that it is but an approximation, but what I
7 did want to get clarified is whether this is an approximation of both
8 leading, cross, re-exam and possibly also Judges' questions or is it just
9 of leading evidence? I want to assume from what you have said in answer
10 that you tried to estimate leading, cross, re-examination, and questions
11 from the Bench. I thank you for that.
12 Do you have anything to raise on the content of the summaries?
13 MR. WHITING: Such as it is, yes, Your Honour, I certainly do have
14 something to raise about that, thank you. Your Honour, in our view, the
15 65 ter summaries that have been provided to the Prosecution are utterly,
16 utterly inadequate and fail to comply with the Rule. The Rule, as Your
17 Honours know, require the Defence to provide a summary -- "a summary of
18 the facts on which each witness will testify."
19 It is the same requirement for the Prosecution as it is for the
20 Defence. The same language. Though I would note that the Prosecution, in
21 addition to providing a 65 ter summary of its witnesses, is also required
22 to provide prior statements of the witnesses, which, of course, can
23 amplify and explain and make clear what the witness is going to testify
24 about. That -- the Defence does not have that requirement. It is not
25 required to provide to the Prosecution statements it has taken from
1 Defence witnesses. In our view, this makes it all the more important that
2 the 65 ter summaries, which are the only notice that are provided to the
3 Bench and to the Prosecution about what the witness is going to say, that
4 it be in compliance with the Rule. It's all the more important in this
6 In our view, the 65 ter summaries that have been provided to the
7 Prosecution are virtually devoid of facts. There are no facts in these
8 summaries. What there are are topics, topics about what the witnesses
9 will testify about. For example, let's look at the first one, MM-084. It
10 says in the 65 ter summary that he will testify about the following facts,
11 but then no facts follow. There are topics that follow. Topic headings.
12 For example, the Vance Plan. He will testify about the Vance Plan. That
13 is not a fact. That is a topic. We don't know what he will say about the
14 Vance Plan, what his evidence will be, what facts he will provide about
15 the Vance Plan. The next witness, MM-085, we are told will testify about
16 "events in Dubica, Cerovljani and Bacin." We are not told what he will
17 say about those events, what facts he will provide, what time period, what
18 events; nothing.
19 In our view, under the jurisprudence of the Tribunal, these
20 summaries are inadequate, and in our view the Defence should be ordered by
21 Monday, we would propose, to provide 65 ter summaries of all its witnesses
22 in compliance with the Rules. With respect to the jurisprudence, I would
23 note that in the Galic case, the Trial Chamber held orally that, "The main
24 purpose of the 65 ter summaries is to give a summary of the facts that
25 enables the other party to prepare for cross-examination." The summaries
1 that have been provided to us fail to do that. They make it impossible to
2 prepare for cross-examination because we do not know what the witness will
3 say, so we cannot prepare to challenge what the witness is going to say.
4 Challenge or accept, perhaps, in some cases, but we cannot prepare
5 cross-examination because we do not know what the witness will say.
6 The Trial Chamber in Galic also noted that it's important to have
7 adequate 65 ter summaries for the Bench to be able to make determinations
8 about the relevance of witnesses before they come, and about the time
9 estimates that have been provided by the Defence, and to judge whether
10 witnesses should be dropped from the list, whether they should be
11 shortened, and so forth.
12 And in this case, there are a number of witnesses about whom the
13 Prosecution has questions about relevance. For example -- but it's
14 impossible to judge for sure, but for example, MM-086, who will testify --
15 we are told will testify about the mistreatment of Serbs in Zadar. On the
16 face of it, given that information, it's not clear to us what the
17 relevance would be. But without more information, it's impossible really
18 to judge. MM-0109, we are told, will testify about the events before the
19 19th of August, 1990, and about the proclamation of a state of war through
20 the Knin radio station. Again, without more detail, it's impossible to
21 determine whether that information is really relevant to this trial.
22 Witness MM-118 we are told will testify about events in -- really
23 about Croat crimes. Miljevac alleged Croat crimes, Miljevac Plateau, the
24 Medak pocket, and Maslenica. Again, without more detail, impossible to
1 In the -- just on the subject of more jurisprudence, in the
2 Kupreskic case in 1999, it's a decision of -- I actually have copies of
3 this, if the Court is interested. It's 11th of January, 1999. The Trial
4 Chamber -- the Defence provided inadequate summaries of Defence witnesses
5 and the Trial Chamber found that: "The extremely succinct and summary
6 nature of many Defence witness statements violated the principle of
7 equality of arms since the Prosecution communicated much more detailed
8 Prosecution witness statements to the Defence and to the Trial Chamber
9 before the presentation of its case, thereby enabling the Defence to
10 prepare for cross-examination of Defence witnesses."
11 And in that case, the Trial Chamber ordered that the Defence file
12 more detailed summaries of witness statements. It's unusual for the
13 Prosecution to make an equality of arms argument, but in this case I think
14 it's justified.
15 If the 65 ter summaries that have been provided by the Defence are
16 compared to the 65 ter summaries that were provided by the Prosecution, I
17 can just make a little visual comparison here. These are the Prosecution
18 65 ter summaries which, again, were in addition to the witness statements
19 provided, so that the Defence had full information about what our
20 witnesses were going to testify about. And this is the Defence summaries.
21 Plainly inadequate. We would ask that they be redone and that they be
22 redone immediately because they should have been done properly Wednesday.
23 We should have had these on Wednesday.
24 JUDGE MOLOTO: Any response, Mr. Milovancevic?
25 MR. MILOVANCEVIC: [No interpretation].
1 JUDGE MOLOTO: Sorry, once again, we are not getting --
2 MR. MILOVANCEVIC: [Interpretation]
3 Q. My learned friend is right when he says these summaries are indeed
4 short -- I apologise. I don't know whether this has anything to do with
5 my mike which has been switched on.
6 These summaries, in other words, are really short and they are
7 certainly not the result of our effort to deprive Prosecution from getting
9 We were pressed for time and this is the result of that time
10 pressure that we've had.
11 We heard a suggestion of our learned friend that this should be
12 done by Monday and I would kindly ask the Trial Chamber to grant us a
13 week, until next Monday, because in the meantime we will have our
14 beginning of our trial, preparation of witnesses, we have a lot of work to
15 do, and we are simply talking about the feasibility of things and how to
16 do them. I don't want to -- for us to find ourselves in a situation to
17 face objections that we have not provided enough detail yet again when we
18 provide our summaries.
19 MR. WHITING: Your Honour, if I may make a proposal, my only -- I
20 understand we all have a lot of work to do. I understand the Defence case
21 is beginning next week. I don't want to make unrealistic pressures on the
22 Defence, however my one concern about delaying this too long is that in
23 the event -- we've already got one set of inadequate summaries. In the
24 event the second round are inadequate, we will be a little bit without a
25 remedy because everybody will be on recess by next Friday. So what I
1 would propose is that the Defence file -- provide the Prosecution with a
2 batch, some of the -- some revised 65 ter summaries of, ten, let's say, by
3 Monday or Tuesday of next week and the remainder by Friday of next week.
4 And then that will give us an opportunity to, if we need to, we will have
5 an opportunity to raise objections to the Trial Chamber. That's my only
6 concern. But I'm agreeable to allowing the Defence to have sufficient
7 time to accomplish its task.
8 [Trial Chamber confers]
9 JUDGE MOLOTO: Mr. Milovancevic, you asked for a week. You asked
10 for a week to give these statements. Did I understand you correctly?
11 Yes, okay.
12 Mr. Whiting, the Chamber has a view on this issue which we would
13 like to share with the parties, and if you agree with it and
14 Mr. Milovancevic agrees, we will make that the order, that by Monday noon
15 the Defence provide the Prosecution with detailed summaries of the
16 witnesses who are going to be called in the week before recess and in the
17 week immediately after recess. And then in a week's time, before we go on
18 recess, they can give the balance of the statements -- of the summaries,
19 detailed summaries. Would that be okay with you? I don't want to order
20 them to make them give you ten by Monday and then those ten are not
22 MR. WHITING: That's fine, Your Honour. My only concern on that
23 is that it's my understanding that there will only be one witness next
24 week, and I don't know how many witnesses will be after the recess, but if
25 this amounts to us seeing two summaries, you know, I don't know. It would
1 be nice if we had a few more, but I'm not going to quibble.
2 JUDGE MOLOTO: Wouldn't you use the time during recess at least to
3 see the rest?
4 MR. WHITING: Yes. As I said, it's not an issue about getting
5 them -- we don't need all of them on Monday. It's just an issue about
6 having an opportunity to raise objections if the ones we get are still
7 inadequate, that's all. But the proposed order is fine, Your Honour.
8 JUDGE MOLOTO: That would cut down the work load on your side,
9 Mr. Milovancevic, wouldn't it, at least between now and the start of the
10 Defence case. Is that okay?
11 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour. We
13 JUDGE MOLOTO: All right. Fine. Then it is so ordered that the
14 Defence shall provide the Prosecution with detailed summaries of witnesses
15 scheduled for the week before the beginning of recess and the week after
16 the beginning of recess. At least for those two weeks, the witnesses
17 scheduled for those two weeks must be given by Monday noon, and by no
18 later than Friday, the 14th of July, the balance of the statements,
19 summaries of the statements, must be given to the Prosecution. Okay?
20 Mr. Milovancevic, Mr. Whiting has raised a number of issues about
21 the statements that you gave. I'm not quite sure whether it is worth us
22 going through the statements now that you are going to give new
23 statements. It's probably not worth it -- new summaries, rather. Thanks,
24 Judge. We will have to look at your new summaries when we next see them.
25 There are a few things we still need to sort out.
1 When -- by when, Mr. Milovancevic, do you think or -- let me take
2 a step back. Is it anticipated that any of the Defence witnesses are
3 going to require protective measures? And if so, by when can we expect
4 applications for such protective measures?
5 MR. MILOVANCEVIC: [Interpretation] Your Honour, according to the
6 information that the Defence has available at the moment, it seems to us
7 that a lot of witnesses will seek protective measures. What is important
8 at this moment is that not for a single moment these protective measures
9 will be used to gain time or to seek delay in the testimonies of these
10 witnesses. We will seek protective measures in due course, we will
11 explain why we are seeking them, and we will provide the Trial Chamber
12 with a list of witnesses who seek protective measures. (redacted)
15 [Trial Chamber and registrar confer]
16 JUDGE MOLOTO: [Microphone not activated] You just mentioned the
17 name of a witness who you say was a protected witness and he's going to
18 seek protective measures. May that name please be deleted. I do see that
19 it doesn't appear on the transcript. If it can just stay like that.
20 Mr. Milovancevic, what the Trial Chamber would appreciate, if it's
21 possible, and it would expedite the proceedings, is if you could determine
22 all the witnesses that you think will require protective measures and just
23 put them in one motion. That would be very helpful in that -- then we
24 don't have to deal with many motions as we go along.
25 MR. MILOVANCEVIC: [Interpretation] Your Honour, we believe that
1 this is agreeable and we will act in accordance with your instruction.
2 JUDGE MOLOTO: Okay. Thank you very much.
3 MR. WHITING: Your Honour, if I may? According to our
4 information, the witness that the Defence referred to - I won't use his
5 name out of an abundance of caution - but did not testify with protective
6 measures in the Milosevic case. It was in open session and his name was
7 used, but maybe there has been an understanding.
8 JUDGE MOLOTO: That's okay. Again out of an abundance of caution,
9 let's just leave it as if it was protective measures. We'll see later
10 when we have got the full truth about it.
11 If I may just go back to the summaries, am I right to say that the
12 detailed summaries that are going to be filed, they will also be filed
13 with the Chamber? Mr. Milovancevic?
14 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour, that's
16 JUDGE MOLOTO: Okay. Now, there is also the question of -- and
17 you raised it yourself, Mr. Milovancevic, in your -- in one -- in
18 discussing one of the points a little earlier, that some of your witnesses
19 may be 92 bis witnesses. Now, my prima facie, or perhaps the Bench's
20 prima facie view of the summaries that you filed was that a lot of those
21 witnesses could be 92 bis witnesses, because a lot of them corroborate one
22 another. For example, I personally counted 11 witnesses that are
23 testifying on the same topic, political developments, and eight who are
24 testifying on relations between Croats and Serbs. Now, in fact those two
25 topics are so closely related that it could easily be said 19 people are
1 being called to testify on one topic. Now, either some of them could be
2 cut off completely or if they deal with -- if each one of them deals with
3 an extra point which none of the others deals with, at least they could
4 come up via 92 bis. Maybe one of them could be viva voce, but the rest,
5 who are corroborating, could come 92 bis.
6 MR. MILOVANCEVIC: [Interpretation] Your Honour, due to the brevity
7 of these summaries that we have provided to the Trial Chamber and the
8 Prosecution, one might gain the impression that the 11 witnesses speak
9 about the same topic, the political situation, that is, and the rest about
10 the relationship between the Croats and the Serbs. However, as far as I
11 can tell you at the moment, all of these witnesses also speak about the
12 actions of the accused, and this is the criterion that is crucial, whether
13 a statement can be introduced according to 92 bis Rule. In any case, when
14 we took the witnesses' statements, we made sure that they would not
15 testify about one and the same thing. We just provided the summaries in
16 that way. In any case, we will bear in mind what you've just told us and
17 we'll try and, wherever possible, suggest the use of the Rule 92 bis.
18 JUDGE MOLOTO: Thank you very much, but in any case, you yourself
19 had referred to the possibility of using 92 bis, and I would imagine also
20 that the more detailed summaries that tell us facts that you -- the
21 witnesses are going to testify about will enable us to determine whether
22 92 bis is appropriate or not.
23 I would just like to deal with some other matters that I think
24 need attention.
25 I think it is important for the Defence to state who is going to
1 testify next week and on the 14th of August. Is that a fair comment,
2 Mr. Milovancevic?
3 MR. MILOVANCEVIC: [Interpretation] Your Honour, yes, it is a fair
4 comment. Next week we are going to hear one witness whose name I
5 mentioned. He will testify over a long period of time and he will testify
6 about a long period of time. He will testify about important facts, and
7 we believe that we will be able to finish that witness next week, that he
8 will fill up the time until the recess. As for the witness after the
9 recess, since we are in the process of making the detailed list, until the
10 end of the week I would kindly ask to you grant us time to tell you that
11 at the moment when we provide more detailed summaries. It will be easier
12 to do then than at this moment. I don't want to improvise, Your Honours.
13 Whatever I say here is binding upon me and this is my attitude towards
14 what I'm saying in the courtroom.
15 JUDGE MOLOTO: Thank you, Mr. Milovancevic.
16 Mr. Milovancevic, is it possible that any exhibits will be
17 tendered through these witnesses? Because any exhibits that are going to
18 be tendered through these witnesses must also be identified to the
19 Prosecution early.
20 MR. MILOVANCEVIC: [Interpretation] Your Honour, we have provided
21 the list of evidence that we intend to use. Of course, we will try to
22 introduce that evidence through our witnesses. We are aware of the
23 problem that we are facing at the moment. The same evidence should be
24 part of the e-court. However, due to some problems that have appeared
25 during the trial with regard to the distribution of the material by the
1 Registry that has been pointed out by the Trial Chamber, we have our case
2 manager now and we will try and remove the problem as we go, and I believe
3 this is the problem that the Trial Chamber is pointing to us at the
4 moment. We are aware of the -- our obligation that the evidence that we
5 intend to lead should be part of the electronic system. We will try and
6 translate all of the materials and, when we hear the witnesses, we will
7 make sure that the Trial Chamber and the Prosecution know beforehand what
8 evidence we intend to introduce through each and every one of these
10 JUDGE MOLOTO: I'm not quite sure we are together. I'm actually
11 talking not necessarily about evidence in general, I'm talking
12 specifically about exhibits. And my question was to you: Are there any
13 exhibits that the Defence intends to tender through the witness that is
14 testifying next week, and the witness that's testifying in the week after
15 recess? And I was saying if there are any exhibits to be tendered through
16 those witnesses, then those exhibits should be identified to the
17 Prosecution and to the Chamber also as early as the identification of the
18 witnesses for this next week and the week after recess, because everybody
19 needs to prepare on those exhibits. Do I come out clearer now? Thank you
20 very much, Mr. Milovancevic.
21 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour. Thank you
22 very much. I really was off the point. And I now understand what you
23 have asked me to do.
24 JUDGE MOLOTO: And you undertake to provide those exhibits to the
25 Prosecution, together with the detailed summaries of these witnesses for
1 next week and the week before -- I beg your pardon, the week after
2 recess. That being so, it is so ordered.
3 Let me just mention also that the sitting on the 13th, it's being
4 disturbed slightly. We may have to start 20 minutes late, at about 20
5 past 9.00, because of the swearing-in ceremony of a new Ad Litem Judge who
6 will be arriving and the fact that most judges are not going to be around
7 on that day and those that are around are being urged to attend the
9 What I wanted to find out, Mr. Milovancevic, and I don't know
10 whether this is something that is usually disclosed here or not. Where I
11 come from, it's no secret. You've given us 53 witnesses. Can I assume
12 that Mr. Martic is not going to testify? Or is he one of the 53? Or is
13 he going to be a 54th?
14 MR. MILOVANCEVIC: [Interpretation] Your Honour, we have considered
15 that possibility. Mr. Martic will most probably testify. Most probably
16 Mr. Martic will testify, and he would be the 54th witness on the list.
17 This is the current position of the Defence.
18 JUDGE MOLOTO: And if he does testify, then we need to get an
19 estimate of the length of time he's going to testify for so that we are
20 able to compute the period.
21 MR. MILOVANCEVIC: [Interpretation] Your Honour, since the estimate
22 of the duration of the possible testimony by Mr. Martic will depend on the
23 length of the testimony of the witnesses that are already on the list, we
24 will take all that into consideration and in the shortest possible time we
25 will provide the Trial Chamber with our estimate. At this moment, I would
1 not be able to give you any estimate. This will largely depend on our
2 final agreement with Mr. Martic and the topic that he will testify on. I
3 would kindly ask you to take this explanation as a reasonable position of
4 the Defence that will do everything in their power to inform the Trial
5 Chamber of all the details in due course.
6 JUDGE MOLOTO: Mr. Milovancevic, I am trying very hard to take
7 this as a reasonable explanation of the Defence, but what I find a little
8 difficult to understand is where you say that the duration of the possible
9 testimony by Mr. Martic will depend on the length of the testimony of the
10 witnesses that are already on the list, I don't know how that can depend
11 on -- how those two can be interdependent. Mr. Martic -- I would have
12 imagined in fact that Mr. Martic would be, if you are going to call him,
13 he would be the one witness that would take the longest time because he's
14 got to deal with all the counts and all the facts, and you just give an
15 estimate of how long you think he will stay in the box for, and I don't
16 know how that depends on the people on the list. And I understand that
17 you may not have taken a final decision whether you are going to call him
18 or not, but if you do call him, you need to make that decision very soon,
19 because if you are going to call him, we need to factor into the time
20 estimated for the Defence case the time that Mr. Martic is going to spend
22 And you see, one thing that we needed to resolve today, and we are
23 not going to be able to resolve, and this is causing a delay, is whether
24 or not the hours that you estimate - you've estimated 300 hours, which is
25 four and a half months - whether those are justified and whether those
1 should be the hours that the Defence should be allocated. We have already
2 indicated -- you have already indicated that some of the witnesses indeed
3 may come 92 bis and that may cut down on a lot of hours, but if Mr. Martic
4 is going to testify, then that may increase your hours, and other people
5 outside this courtroom require this estimate for administrative purposes.
6 And we are now not able to make this estimate.
7 MR. MILOVANCEVIC: [Interpretation] Your Honour, what you have just
8 said is very true. As far as the time is concerned for the witnesses on
9 our list, this is the time that the Prosecution had, and we believe that
10 the Defence should have the opportunity to use up as much time as the
12 As far as Mr. Martic is concerned, and if you are agreeable with
13 that, by the end of next week we will inform you exactly whether
14 Mr. Martic is going to testify, when - I believe this will be at the end
15 of our case if that happens - and how long Mr. Martic will take. Your
16 Honour, we do not expect that Mr. Martic will testify for a month. We
17 don't believe that his testimony will take that much longer than the
18 testimony of other witnesses, and we don't expect that his testimony will
19 have a drastic impact on the duration of the case. In any case, if you
20 will allow us to talk to Mr. Martic and inform you about his testimony
21 after our conversation with our client.
22 JUDGE MOLOTO: I hear that, Mr. Milovancevic, but you see, end of
23 next week is end of term, and we are not here to work on issues. We need
24 this information before we go on recess. We've got to work on it. As I
25 say, there are other departments in the Tribunal outside just the Chamber
1 who need this information. But also the Chamber needs this information
2 for scheduling purposes. I don't think it should take you that long to
3 sort out with Mr. Martic the question of his testifying. You should be
4 able to do that today sometime and you can tell us on Monday. I mean,
5 this is -- this must be something that has occupied your minds from day 1.
6 MR. MILOVANCEVIC: [Interpretation] Yes. We'll do as you have
7 instructed. We will inform you of that on Monday.
8 JUDGE MOLOTO: Thank you very much.
9 Having said that, I just want to say that the issue of the hours
10 allocated to the Defence still remains unresolved. In reply to what you
11 said, Mr. Milovancevic, that you -- the Defence must have the same amount
12 of time as the Prosecution had, I don't think it's correct to say that.
13 It all depends on various factors. It depends on the witnesses, the
14 number of witnesses you have, what they are going to testify about, how
15 they are going to testify, are they mainly 92 bis or are they mainly viva
16 voce, are they all viva voce? And in my view, you could take a little
17 more than the Prosecution or it could take far less than the Defence
18 [sic]. In a situation where you have about 53 witnesses as against 74
19 that they had, expectations would be that you would probably take less. I
20 think what is important is that the Defence must get an opportunity to
21 present its case and place it on the record, and it must place it
22 effectively. That is the important thing. And unfortunately, in this
23 Tribunal, we have to estimate time because time is needed -- is used for
24 various things, and we are going to have to then postpone the question of
25 time to sometime before we start the Defence case, and hoping that by then
1 we will have resolved all the issues that impact on time.
2 I'm going to suggest that that issue remains postponed to Tuesday,
3 the 11th, when the Defence case begins. Whatever information has to be
4 given relating to the time must be given by Monday, the 10th, Mr.
5 Milovancevic. Then we can deal with it on the 11th.
6 Any outstanding issues that you would like to raise, Mr. Whiting?
7 MR. WHITING: Only five, Your Honour.
8 JUDGE MOLOTO: Five?
9 MR. WHITING: Yes. They are brief, though.
10 JUDGE MOLOTO: Okay.
11 MR. WHITING: Usually lawyers say one and then they raise five, so
12 I thought I would say five.
13 JUDGE MOLOTO: And raise one?
14 MR. WHITING: No, it will actually be five.
15 The first is just to note that actually the Prosecution didn't
16 call 74 witnesses. Far fewer than that. And by our estimate we used 260
17 hours for -- to present the Prosecution case, which is far below what the
18 Defence has proposed. They have proposed 320 hours for the Defence. But
19 having said that, I agree with Your Honour's observation that there is no
20 rigid mathematical equivalence here. It could be more, it could be less,
21 it depends on what the evidence is, but I just wanted to note that.
22 The second is now that we've learned for the first time today that
23 Mr. Martic himself will most likely be a witness, not only do we, in our
24 view, need the estimate of time, but more importantly, we need a 65 ter
25 summary for him. He is a witness like any other, and a 65 ter summary
1 should be prepared and we should have that with the other 65 ter
2 summaries, because knowing the complete Defence case could affect how the
3 Prosecution prepares for cross-examinations of individual witnesses and
4 what issues it deals with and how it prepares for that. So we -- in our
5 submission, we should have a 65 ter summary for Mr. Martic along with the
6 others by the deadline of next Friday.
7 I don't know if I should -- should I continue with all the issues
8 or --
9 JUDGE MOLOTO: Do you want that resolved before you continue?
10 MR. WHITING: Perhaps we should.
11 JUDGE MOLOTO: I guess that is -- speaks for itself,
12 Mr. Milovancevic. That is, it can't be otherwise.
13 MR. MILOVANCEVIC: [Interpretation] Your Honour, we still have not
14 made a definite decision with respect to Mr. Martic's testimony. What we
15 know so far is that we think that he should testify, that he would be --
16 will be testifying. Now, through the list of witnesses, and our
17 introductory address, the Prosecution will gain insight into our Defence
18 case and Mr. Martic, as a witness testifying on his own behalf, will speak
19 about all the facts raised by the Prosecutor and that other witnesses
21 Now, I should like to ask that more time be left for Mr. Martic's
22 testimony. It will be a detailed testimony, it will relate to an enormous
23 number of facts, and I think that it is in the interests of both the
24 Prosecution and the Trial Chamber to have this presented as best as
25 possible. We see no danger that the Prosecutor will not be able to view
1 the case as a whole, having worked on it for so many years. Of course,
2 the Prosecution has the right to be made aware of the facts of the
3 testimony but we have to adjust ourselves to the situation.
4 JUDGE MOLOTO: Mr. Milovancevic, I don't know why life is becoming
5 so unnecessarily difficult when it shouldn't be. If you are going to call
6 Mr. Martic as a witness, then he is a witness, then you must give a 65 ter
7 summary of his testimony. It can't be otherwise. And as I said, the
8 question whether or not Mr. Martic is going to testify is a question that
9 should have occupied your mind much earlier than today when the Bench is
10 raising the question. And you should -- it's part of the strategy, and
11 you should be knowing by now. I don't take kindly to your prevarication
12 on whether or not Mr. Martic is going to testify. This is a fundamental
13 decision that you take when you plan your strategy, and for you now to
14 want to delay the proceedings because you have not taken a decision on
15 this is really not acceptable, I must say. I do not think we should delay
16 more than this. It has just actually struck me that it looks like I made
17 an order a little earlier which is making it impossible for us to give an
18 estimate of the Defence period in terms of Rule 75 ter, and we have just
19 been pushed against the wall by all these uncertainties that are coming
20 from the Defence case, you know. I think -- I think, Mr. Milovancevic, if
21 you are going to call Mr. Martic as a witness, by the time that you give
22 the detailed summaries of the witnesses to the Prosecution, you must have
23 a detailed summary of Mr. Martic's testimony. Otherwise, we -- the Bench
24 and the Prosecution will be entitled to assume that the witnesses that you
25 are going to call are the witnesses for whom you have given summaries by
1 the end of next week.
2 MR. MILOVANCEVIC: [Interpretation] Mr. Martic will testify and
3 we'll do our best to provide the summary by next Friday.
4 JUDGE MOLOTO: Yes, Mr. Whiting?
5 MR. WHITING: I was just going to go on to my other matters, if I
6 may. Or --
7 JUDGE MOLOTO: Yes. Mr. Whiting, I see you want to go on to the
8 next point. My mind at the moment is occupied -- well, when I said 75
9 ter, I meant 73 ter. The Chamber has to make this estimation pursuant to
10 73 ter of the period of the Defence phase and I'm trying to work out
11 through my mind whether, if we get this information by next Friday, we
12 will be able to do so, will the Bench be able to do its job before we go
13 on recess? And lest I forget it, can I ask you to hold your four items.
14 Let's resolve this one.
15 Mr. Milovancevic, are you able to venture a suggestion on how to
16 deal with this situation? The Chamber must make a ruling in terms of 73
17 ter (E) on the Defence case. And for it to be able to do so it must have
18 all the information, all the summaries before. In other words, it must
19 have a proper filing by the Defence in terms of 65 ter (G), and this 65
20 ter (G) filing is not ready right now. How do we get out of this problem?
21 How do you suggest we get out of this problem? We can take a break and
22 you can answer when we come back, because it looks like Mr. Whiting also
23 has more questions to raise. May I suggest that you apply your mind
24 during the break.
25 Court adjourned, come back at quarter to.
1 --- Recess taken at 10.16 a.m.
2 --- On resuming at 10.46 a.m.
3 JUDGE MOLOTO: Just to round up, Mr. Milovancevic, the Chamber has
4 sort of considered the situation, and we make this order, that the final
5 determination of the estimated period of the Defence evidence will be made
6 on the 14th of August. This, however, does not mean that you've got --
7 the Defence must give us the information we require by then. The
8 information we still require before we go on recess so that we can
9 consider that. Having made that order, the Defence must also understand
10 that because of this delay, there may be delays in processing your
11 payments because all that will not be having the determination until then.
12 Okay, Mr. Milovancevic? You understand that?
13 You may go on to your next points, Mr. Whiting.
14 Yes, Mr. Milovancevic?
15 MR. MILOVANCEVIC: [Interpretation] Your Honour, yes, I understood
16 you fully. A moment ago, before the break, we asked -- you asked about
17 the duration of Mr. Martic's testimony. The duration of testimony is
18 linked to the overall duration of the Defence case, and we would like to
19 tell you straight away, here and now, that it is the Defence's position
20 that Mr. Martic's testimony should not influence the time stipulated on
21 the list. We'll try and comply with the number of hours that we
22 stipulated on the list. Of course, there might be some witness movement,
23 but at this point in time, that would be our preliminary position. It's,
24 of course, an approximation but I think that it is something that will be
25 of importance to the Trial Chamber and we'll try to stick to that.
1 JUDGE MOLOTO: I hear what you say and I appreciate what you say,
2 Mr. Milovancevic. You're missing one point, though. The point is that at
3 some stage the Chamber must make a determination, in terms of Rule 73
4 ter (E) of the length of time that the Defence will take to present its
5 case. In other words, this means that the estimate -- the 300 hours
6 estimate given by the Defence is not taken as gospel. The Chamber must
7 still make a determination, and that determination can only be made when
8 the Chamber has seen the detailed summaries of the evidence that is going
9 to be presented, and a determination has been made how the hours can be
10 cut down, either by getting some of the witnesses as 92 bis witnesses or
11 cutting some of them completely. So it is not just because of
12 Mr. Martic's testifying or not testifying that we are not able to make
13 this determination. We are not able to make the determination because we
14 must still get this full summary, complete summary, of the testimony to be
15 given by all the witnesses. Okay? I hope that clears the matter.
16 Mr. Whiting, you may go on to the second of your four remaining
18 MR. WHITING: The good news is we are actually on the third of the
19 -- I've already covered two. We are on number 3.
20 JUDGE MOLOTO: Have you?
21 MR. WHITING: Yes.
22 JUDGE MOLOTO: I don't know what number 2 was.
23 MR. WHITING: Number 1 was to tell the Court what the time was
24 that we used, and then number 2 was the 65 ter summary for Mr. Martic.
25 So number 3 now is that the -- with regards to the exhibit list
1 that has been provided by the Defence, Rule 65 ter (G)(ii) requires the
2 Defence -- the last sentence of that Rule is that, "The Defence shall
3 serve on the Prosecutor copies of the exhibits so listed." Now, we have
4 received two lists, exhibit lists, from the Defence. One are exhibits
5 that have ERN numbers. We don't need copies of those. We have those
6 documents. They got them from us. The other list, however, are documents
7 without ERN numbers and for those, we would need copies of the exhibits,
8 and we would ask that the Defence be ordered to provide those copies today
9 to us of those exhibits. This should -- this is again something that
10 should have been done on Wednesday, as part of its compliance with Rule 65
11 ter (G). It was not done and we would ask that it be done by today so
12 that we have those exhibits.
13 JUDGE MOLOTO: Mr. Milovancevic, I'm sure you are aware of that
15 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour. I addressed
16 that question in part when I said that the Defence entered this stage
17 under circumstances which meant that we had to hurry up because we have
18 just recently been given a case manager, for objective reasons, and
19 therefore the second list we shall prepare within the shortest space of
20 time, Your Honour. But this was just a physical job that had to be done.
21 So that is why we weren't able to do so thus far. I think that in the
22 coming week, we will have complied and finished the job.
23 JUDGE MOLOTO: Yes, Mr. Milovancevic. I'm not quite sure -- you
24 obviously have proofed these witnesses and taken statements from them.
25 It's just making a copy and giving it to the opposite side.
1 Why does it become so difficult to do it today?
2 MR. MILOVANCEVIC: [Interpretation] It doesn't refer to witness
3 statements. It is a description of the documents. Some documents have
4 ERN numbers and we have marked those. Other documents do not have the ERN
5 number, so the Prosecutor can't find them, and we'll have to deal with
6 them, process them, copy them, and send them to the Prosecutor. So in
7 addition to making the summaries for the witnesses who are on the list,
8 this is a very lengthy process, requiring a lot of time. We have done our
9 best to make a list of the documents, to select them, and to put them on
10 the list, and we know that the problem exists. We are fully conscious of
11 that. Of course, during the coming week we'll try and deal with the
12 problem so that we can supply the Prosecution with the material necessary.
13 When the first witness testifies, the Prosecutor will certainly have a
14 list of the material that we wish to introduce through that witness.
15 So those are the circumstances. I can't say any more than that,
16 Your Honour.
17 JUDGE MOLOTO: Yes, Mr. Whiting?
18 MR. WHITING: Your Honour, by my count, there are only 142
19 documents that we are seeking, and I'm not sure why it should take a week
20 to copy 142 documents. That should be done -- should be able to be done
21 today and if, at the latest, Monday. I would agree to having them first
22 thing on Monday, but it seems to me that's certainly enough time to copy
23 142 documents.
24 JUDGE MOLOTO: During the short break, I thought we -- we became
25 aware of a further filing by the Defence which increases the number of
1 exhibits from 262 -- from 120 to 262. I'm not sure whether you have seen
2 that filing, Mr. Whiting.
3 MR. WHITING: I do. I have it here in front of me. And this is
4 -- this is -- the first 120 exhibits are ones that have ERN numbers. We
5 do not need copies with those. We are fine with that. We will print out
6 our own copies. That's fine. The second list contains 142 items, and
7 that's what I was referring to. Those are the ones that we need copies
8 of, and I would think that by Monday -- I don't see what the difficulty
9 would be providing us copies of those by Monday.
10 JUDGE MOLOTO: Yes, Mr. Milovancevic?
11 MR. MILOVANCEVIC: [Interpretation] We will do that, Your Honour,
12 yes, we will have it by Monday.
13 JUDGE MOLOTO: Thank you very much. The next point?
14 MR. WHITING: Thank you, Your Honour. The next point has to do
15 with expert witnesses from the Defence. As far as we can tell, there are
16 two experts identified on their list, MM-132 and MM-133. We note that the
17 description -- with respect to MM-132, the Defence has written in their
18 summary that the witness has prepared a written statement in accordance
19 with Rule 94 bis. With respect to MM-133, the Defence writes that the
20 witness will prepare a written statement. So the distinction has been
21 made. We would ask, with respect to the one -- to the expert witness who
22 has prepared the expert report, that that be filed on us, that we be
23 provided a copy immediately of that.
24 Rule 94 bis contemplates -- which deals with expert reports,
25 contemplates a 30-day period after the opposite party receives an expert
1 report for the opposite party to evaluate and consider that report and
2 determine whether they will contest it or not. My concern is that if
3 these aren't acted on soon, we will be facing delays later on. If this
4 report is ready, there is no reason why it can't be provided to us now,
5 triggering the 30-day period for us to evaluate it.
6 I would secondly ask that, with respect to the expert who has not
7 yet prepared the report, according to the Defence, that perhaps we could
8 get some indication of when that might be ready and when that might be
9 filed, keeping in mind this 30-day period that will have to run.
10 JUDGE MOLOTO: Fair request, Mr. Milovancevic?
11 MR. MILOVANCEVIC: [Interpretation] Your Honour, certainly. We are
12 aware of 94 bis Rule and the deadlines there. And we shall give the
13 Prosecutor the report as soon as we are physically able to do so. And I'd
14 like to ask my learned friend of the Prosecution to bear the following in
15 mind: We will certainly respect the deadline and leave expert witnesses
16 for a later stage of the Defence case so that the Prosecution will
17 certainly have enough time. All we are dealing with now is the situation
18 as it stands at the moment. So as soon as the first report is accessible
19 to us, as soon as we receive it in The Hague, we will send it over to the
20 Prosecution. It is being prepared as we speak, and we'll do that.
21 JUDGE MOLOTO: Mr. Milovancevic, if we could just be a little
22 forecast: One, how soon will you be physically able to give the
23 Prosecutor the report? Two: The request is that the 94 bis report that
24 has already been written out be given now, or today sometime, and then the
25 one that still has to be written, give us an estimation of time by when
1 you think it will be given. I hear what you say there, but unfortunately,
2 you are not answering the question, the request, as it came.
3 MR. MILOVANCEVIC: [Interpretation] Your Honour, the second report,
4 which isn't finished yet, we could hand over immediately after the recess.
5 That second one. The one that is complete, it's being typed out, printed
6 out, and before the weekend, we can't complete the job physically. It has
7 to be ready so that we can receive it and then hand it over to the
8 Prosecution. So would the Trial Chamber please bear that in mind and try
9 and understand the position we are in?
10 JUDGE MOLOTO: Only if you tell us and you sort of play your cards
11 open with us. Where is it being typed, how long will it take to type?
12 When will it be sent to you? And how long will it take to reach you? You
13 know, if you want the Chamber to take -- to accommodate you, please play
14 open cards with the Chamber.
15 MR. MILOVANCEVIC: [Interpretation] Your Honour, of course it is in
16 our best interests to provide you with facts. The first report that is
17 being printed, that is in the pipeline, is a military expert report. It
18 is finished. The material has been written. But it is now being typed
20 JUDGE MOLOTO: Where, where, where?
21 MR. MILOVANCEVIC: [Interpretation] In Belgrade. And we expect -
22 i.e., I have information - that we should have it by the end of the
23 weekend. This is the situation at hand. This is what we are facing. And
24 the situation with the expert report, the military report, is that it has
25 been drafted, it is being typed out, it is being compiled, it is being
1 marked in the way it should be marked, it is being processed, and that's
2 why we have told you that the report is ready. And the second one is
3 being drafted.
4 JUDGE MOLOTO: Before you go to the second one. You say you will
5 have this first one by the end of the weekend. Can we then say that by
6 Monday morning, you can give a copy to the Prosecution? By Monday, the
8 MR. MILOVANCEVIC: [Interpretation] Your Honour, if I could kindly
9 ask you that this should -- that this isn't on Monday the 10th but
10 Wednesday because that would give us time to do our part of the job, as we
11 should. That material is now in Serbian. It has to be translated. And
12 we now face this technical problem that is connected with the work of
13 other people, not only the expert himself. That's why I am asking for
14 this deadline, which I hope we will be able to meet, the deadline being
16 JUDGE MOLOTO: Okay, Wednesday the 12th. Okay. The second
17 report, Mr. Milovancevic?
18 MR. MILOVANCEVIC: [Interpretation] That one could be prepared
19 immediately after the recess; i.e., in mid-August.
20 JUDGE MOLOTO: Why can it not be prepared almost immediately and
21 during the recess, if need be, so that immediately we come from recess, it
22 is discovered to or disclosed to the Prosecution?
23 MR. MILOVANCEVIC: [Interpretation] Your Honour, I may have not
24 been precise. This is what I meant. Immediately after the recess, we
25 will be able to disclose this material to the Prosecution, and this is
1 what I had in mind. I apologise for the imprecision.
2 JUDGE MOLOTO: Thank you. That's the answer finally.
3 MR. WHITING: Thank you, Your Honour. That's absolutely fine with
4 the Prosecution.
5 JUDGE MOLOTO: Thank you very much.
6 MR. WHITING: Though I would note that in our -- the 30-day time
7 in Rule 94 bis starts to run when we receive an English version of the
9 JUDGE MOLOTO: Sure.
10 MR. WHITING: So -- my final point is really a minor one --
11 JUDGE MOLOTO: Before you go to the final point, so it is so
12 ordered, the one will be given on Wednesday the 12th, the first report,
13 and the second report immediately on arrival, that is on the 14th of
15 Your final point, Mr. Whiting.
16 MR. WHITING: Thank you, Your Honour. The final point is really
17 just to note that the Bench has emphasised the importance of the Defence,
18 with respect to the next week and the week after, informing the
19 Prosecution of which witnesses will testify, in addition, the exhibits
20 that will be tendered through those witnesses. I assume from that but
21 just wanted to underscore that this is a protocol for the future of the
22 Defence case and that we will always be informed ahead of time with some
23 notice - at least a week, I would think - which witnesses are going to be
24 coming, which -- the next witnesses are going to be coming and which
25 exhibits that will be tendered through those witnesses.
1 JUDGE MOLOTO: I think that goes without saying, Mr. Milovancevic.
2 MR. MILOVANCEVIC: [Interpretation] I agree with that, Your Honour.
3 JUDGE MOLOTO: Thank you very much.
4 [Trial Chamber confers]
5 JUDGE MOLOTO: The final point I would like -- the Bench would
6 like to raise with the parties is just to give you notice that early in
7 the autumn, when we come back from recess, the Chamber would like to
8 provide a scheduling order for the remainder of the trial, and we just
9 mention this just to put you on notice so that you can -- so that you can
10 be able to expect, having been given that scheduling, when to be ready for
11 any rebuttal or rejoinder evidence, final briefs and closing arguments.
12 We will do that as soon as we come back in early autumn, okay?
13 MR. WHITING: Your Honour, I would just ask if we could -- if the
14 parties could briefly be heard with respect to those issues before the
15 scheduling order is issued, we would be grateful.
16 JUDGE MOLOTO: If you will remember to ask to be heard at the
17 time, the Chamber is -- at times just becomes forgetful and might go ahead
18 and give an order.
19 MR. WHITING: I'll remember to raise it after the recess.
20 JUDGE MOLOTO: Okay. You do that.
21 You're finished on your items.
22 Mr. Milovancevic, do you have any items that you would like us to
23 deal with during this conference that we haven't so far dealt with?
24 MR. MILOVANCEVIC: [Interpretation] No. At this point in time, no,
25 Your Honour. The only thing I would kindly ask for is the precise
1 scheduling for next week, i.e., when the sessions start next week, whether
2 in the morning or in the afternoon. I'm not sure about that so I would
3 kindly ask you to advise me as to that.
4 JUDGE MOLOTO: Thank you, Mr. Milovancevic. You will certainly be
5 advised of that. We are sitting in the mornings next week, at 9.00. So
6 right through the week. I guess I'm correct?
7 THE REGISTRAR: Yes.
8 JUDGE MOLOTO: Is that it?
9 MR. MILOVANCEVIC: [Interpretation] Thank you.
10 JUDGE MOLOTO: Thank you.
11 [Trial Chamber confers]
12 JUDGE MOLOTO: Thank you very much. Just to remind you again, on
13 the 13th, we are starting 20 minutes late.
14 Court adjourned and we will reconvene on Tuesday, the 11th, at
15 9.00, in this courtroom.
16 Court adjourned.
17 --- Whereupon the Pre-Defence Conference adjourned
18 at 11.12 a.m., to be reconvened on Tuesday, the 11th
19 of July, 2006, at 9.00 a.m.