1 Thursday, 16 November 2006
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 2.20 p.m.
6 JUDGE MOLOTO: Good afternoon, sir. May you please make the
8 MR. MILOVANCEVIC: [Interpretation] Your Honour, just a moment,
10 Before --
11 JUDGE MOLOTO: May you please take a seat, sir?
12 MR. MILOVANCEVIC: [Interpretation] Good afternoon, Your Honours.
13 The Defence wishes to inform the Trial Chamber that the redacted
14 text of the military expert report constitutes material which the Defence
15 cannot stand by. In that report, in its form as it is, can only be
16 detrimental to the Defence and to the accused himself. The report has
17 been decimated and at the time when we have been denied certification to
18 lodge an appeal, we have no other option but to withdraw this expert
19 witness and not to have him testify.
20 At the same time, since the Trial Chamber has taken such a
21 position toward the Defence military expert, I suggest that the Trial
22 Chamber should, ex officio, appoint a military expert who would make an
23 expert analysis based on the evidence of the case and, of course, in that
24 case, an in-court OTP expert such as Mr. Theunens could not be used. It
25 would have to be an independent expert. In the interests of justice, the
1 expert should refer himself to the evidence led, and since it was said
2 that the attack on Zagreb was not militarily necessary, on the basis of
3 all this, we apply to the Trial Chamber to appoint an independent military
5 JUDGE MOLOTO: Yes, Mr. Black.
6 MR. BLACK: Thank you, Your Honour, we are not opposed to the
7 Defence withdrawing this witness, obviously, so perhaps he should be
8 excused and then we could take up the second part of the Defence's
10 JUDGE MOLOTO: Thank you. That's what we are going to do.
11 Thank you very much, sir. I'm sorry to have asked that you be
12 called into court. Apparently those who called you to testify don't
13 require your services any longer. You are excused. You may stand down.
14 Thank you very much.
15 [The witness withdrew]
16 THE INTERPRETER: Interpreter notes that there might be a part of
17 what Defence counsel said concerning Mr. Theunens that was missed, if the
18 counsel could be asked to repeat that.
19 JUDGE MOLOTO: Well, it is mentioned here, it is said that an
20 in-court OTP expert such as Mr. Theunens could not be used. It would have
21 to be an independent expert. It is on transcript. Thank you very much.
22 As to the next point, the Chamber to appoint a military expert,
23 this was not in the contemplation of the Chamber. At this stage, if
24 counsel wants to make a substantive application on this matter, counsel is
25 advised to make a formal submission on paper and the Chamber will respond
1 to that.
2 Court adjourned.
3 MR. WHITING: Your Honour, I'm sorry, there is just -- there are
4 two matters which I think we need to take up.
5 The first is that I believe the expert report was placed into
6 evidence and it would now need to be struck from evidence. It needs to be
7 taken out of evidence. I think it's Exhibit 1012.
8 JUDGE MOLOTO: I don't know what Mr. Milovancevic wants to do with
10 Mr. Milovancevic, do you want to -- are you withdrawing the
11 witness only, or are you withdrawing the witness and his report?
12 MR. MILOVANCEVIC: [Interpretation] Bear with me, Your Honours.
13 MR. WHITING: Your Honour, I actually don't think there is a
14 distinction because under Rule 94 bis we are entitled to cross-examine if
15 the report is coming into evidence and since they did not call the
16 witness, they've chosen not to call the witness, in our view the report
17 cannot come into evidence.
18 JUDGE MOLOTO: Indeed. But let's hear what Mr. Milovancevic has
19 to say. He's got -- he's asked the Chamber to bear with him.
20 MR. MILOVANCEVIC: [Interpretation] Yes. I do believe that the
21 redacted report should be withdrawn from evidence, should be struck from
22 evidence. That's quite normal.
23 JUDGE MOLOTO: Thank you very much. Then the expert report itself
24 is withdrawn from evidence and the exhibit number allocated to it is --
25 can it please be vacated?
1 THE REGISTRAR: Yes, Your Honour, Exhibit 1012 has been withdrawn.
2 JUDGE MOLOTO: Thank you.
3 MR. WHITING: Thank you, Your Honour. There is another matter,
4 which is I take it this means the Defence is now resting its Defence case,
5 since this is the last -- this was the last witness that had been
6 indicated, and if that's so, then there are certain things that happen
7 after that. So perhaps we could get an indication if that's in fact the
9 JUDGE MOLOTO: Yes, Mr. Milovancevic.
10 MR. MILOVANCEVIC: [Interpretation] Your Honour, if the Trial
11 Chamber should fail to appoint an independent expert, then, of course, the
12 Defence will rest the case. We have no further witnesses.
13 We have only one request to make. In the past several of days, we
14 have received a large quantity of potentially exculpatory material from
15 the OTP pursuant to Rule 68. We are currently going through the material,
16 and we might at the end of the examination of the material move that some
17 of the material be admitted into evidence.
18 We on, our part, do not have any other witnesses to call.
19 JUDGE MOLOTO: Well, yes, sir.
20 MR. WHITING: I have no objection in principle to that, and I was
21 going to make a suggestion which would be that perhaps we could adjourn
22 until Monday and then all kind of loose ends could be attended to between
23 now and Monday, such as the Defence will have an opportunity to review
24 whatever material we've turned over.
25 But there is one other matter. We do expect to make an
1 application to admit some statements into evidence as rebuttal evidence.
2 We do not plan to call any witnesses, any live witnesses, as rebuttal, but
3 we do have a motion to admit some statements via Rule 92 bis as rebuttal
4 evidence. And I just perhaps need an indication of when I should file it.
5 JUDGE MOLOTO: An indication from?
6 MR. WHITING: Well, from Your Honours. I'm happy to file it
7 today. I don't want to -- but if the Defence has not it formally rested I
8 don't want to cause any difficulties in terms of the sequence or cause any
9 offence to the Defence or anything.
10 JUDGE MOLOTO: Let's deal with the Defence resting.
11 Mr. Milovancevic, you talked of if the Trial Chamber is going to
12 fail to call the expert witness, then the Defence is resting. I'm not
13 quite sure why that should be dependent on the decision of the Trial
14 Chamber, sir. You have called all your witnesses, you have no further
15 witnesses to call, and is the Defence resting? If the Chamber decides to
16 call its witnesses, it will decide to call its witnesses. If it decides
17 to not to call its witnesses, it will decide not to call its witnesses.
18 You tell us: Are you closing your case?
19 MR. MILOVANCEVIC: [Interpretation] Your Honour --
20 JUDGE MOLOTO: Aside from applications that you will make for
21 exculpatory material in terms of Rule 68, you can do that, but are you
22 closing your case?
23 MR. MILOVANCEVIC: [Interpretation] In order for the situation to
24 be quite clear, let me tell you this. If the Trial Chamber accepts to
25 appoint a military expert, then the -- this will be evidence led by the
1 Trial Chamber, ex officio. This will not be our evidence. I told you
2 that we have no more witnesses. We have presented the evidence we had,
3 except for some written evidence that we may move to be tendered into
4 evidence pursuant to Rule 68.
5 Therefore, Your Honours we have no more witnesses and in that
6 sense we have finished our presentation of evidence.
7 JUDGE MOLOTO: And you have closed your Defence case. Say so.
8 MR. MILOVANCEVIC: [Interpretation] Yes, that is correct.
9 JUDGE MOLOTO: Thank you.
10 Right. Questions of Rule 68 evidence and any evidence in
11 rebuttal, as you rightly say, Mr. Whiting, can be dealt with after this.
12 I don't think we need to sit here the whole afternoon and try to go
13 through all of those things.
14 MR. WHITING: No. We'll file our rebuttal motion this afternoon.
15 It's ready to be filed and we'll file it this afternoon.
16 JUDGE MOLOTO: Thank you very much. Anything else from either
17 side? Mr. Milovancevic? Nothing.
18 [Trial Chamber confers]
19 MR. WHITING: Your Honour, I think as a formal matter at some
20 point when everything is all finished, I think the Trial Chamber has to,
21 under Rule 87, has to declare the hearing closed. I think that would be
22 premature to do right now because we have our rebuttal evidence. The
23 Defence has indicated it may file a written -- for more evidence. So if I
24 may suggest that perhaps -- I don't know if we adjourn until Monday.
25 Perhaps we could adjourn until Monday and see where we are then, if --
1 JUDGE MOLOTO: I'm sorry, I wouldn't like to adjourn to Monday to
2 come and see where we are. I'd like to adjourn to a date to come and
3 finalise matters; otherwise, adjourn without a date, to a date to be
5 MR. MILOVANCEVIC: [Interpretation] Your Honours, I share the
6 position of my learned friend.
7 On Monday, I suppose that we will be able to solve all the issues
8 we have to solve, and I suppose we will be able to close the case by that
9 time. The Trial Chamber should pass such a decision at the time when all
10 the matters have been decided upon. We still have the motion -- or the
11 application pending concerning the expert report, then the 92 -- Rule 92
12 motions by the Prosecutor. Therefore, I believe that on Monday, we should
13 be able to finish the case. We have covered all the other deadlines. It
14 would be unnecessary -- we would be unnecessarily pressed for time if we
15 insisted on completing it sooner than Monday.
16 JUDGE MOLOTO: Mr. Milovancevic, nobody has suggested that we
17 complete sooner than Monday, and I said if we adjourn to Monday, I want
18 the assurance that we are finalising everything on Monday. Remember, we
19 still have to admit into evidence the site visit report. It is not yet
20 finalised, and I was saying if we do -- we either go to Monday to finalise
21 or we postpone sine die.
22 MR. WHITING: Actually, although I was the one who proposed
23 Monday, I think perhaps the other option would be better because the
24 Defence is going to have to respond to our rebuttal motion and so forth.
25 But I think perhaps so that it doesn't -- we don't have a drift,
1 if we could set a date, certain dates by which things have to happen.
2 We'll file our rebuttal motion today.
3 JUDGE MOLOTO: That we can do.
4 MR. WHITING: We'll file our rebuttal motion today. If the
5 Defence could be given a date by which to respond. It's not very
6 complicated. I don't think it would take very long, but if they can
7 respond --
8 JUDGE MOLOTO: What do the rules say?
9 MR. WHITING: Well, I think it's an ordinary motion, so it
10 could -- under the rules, I think if the rules were to apply, it could be
11 two weeks, but I wouldn't think under the circumstances that would be
12 necessary. I think it could be done on an expedited basis. And then if
13 the Defence could be required to file any additional documentary evidence
14 they want to file by Monday, then I think we might be in a position to
15 move things along.
16 JUDGE MOLOTO: Okay. Let's take this step by step.
17 On 92, you intend to file is the 92 statements in rebuttal.
18 [Microphone not activated].
19 THE INTERPRETER: Microphone, please, Your Honour.
20 JUDGE MOLOTO: Pardon. Are 92 bis statements in rebuttal.
21 MR. WHITING: That's correct.
22 JUDGE MOLOTO: And you say you will file them today.
23 MR. WHITING: That's also correct.
24 JUDGE MOLOTO: Mr. Milovancevic, when would you respond?
25 MR. MILOVANCEVIC: [Interpretation] Your Honour, I was asked to
1 respond to a hypothetical matter. Until I see the rebuttal submission by
2 my learned friends, I cannot tell you, because I don't know what matters
3 we will have to address there.
4 At any rate, we will not be insisting on the deadline provided for
5 by the rules for the formal reasons. We will respond as soon as possible,
6 and just as the Prosecutors are doing their best to finish as soon as
7 possible, we will do likewise.
8 Now, as for Monday, I -- it wasn't quite clear to me. Of course
9 we have to admit into evidence the site visit report and we are not
10 insisting on it being on Monday. I wanted to support what my learned
11 friend stated. I do believe that we are nearing the end and we can
12 complete all the matters in time. Therefore, I agree with Your Honour's
14 JUDGE MOLOTO: Mr. Milovancevic, are you on land or at sea? A few
15 minutes ago, you were saying we should come back on Monday, everything
16 will be finalised, and now all of a sudden you're not able to tell me
17 whether you can respond to one of the things that was supposed to be
18 finalised before Monday.
19 You know -- in all this, let me tell you one thing. Let me remind
20 both parties one thing. The date for final briefs as determined in the
21 Scheduling Order stands. That's not going to shift. Okay? Whatever
22 happens must happen before then, and the parties must be ready with their
23 final briefs on the dates set.
24 You are not now able to say how soon you can respond to the 92 bis
25 rebuttal statements, Mr. Milovancevic. I understand. That's the
1 difficulty that I was seeing.
2 But anyway, we got to set time-scales so that at least we can
3 postpone to a definite day. I want to suggest, sir, that you reply by
4 Wednesday next week. Is that fair? This shouldn't be new -- it shouldn't
5 be new evidence, not new facts, I wouldn't imagine.
6 MR. WHITING: No, it's rebuttal.
7 JUDGE MOLOTO: So that's why I'm saying they should be able to
8 deal with them.
9 MR. WHITING: I know Mr. Milovancevic is at a disadvantage here
10 because he has not seen the motion.
11 JUDGE MOLOTO: I understand that.
12 MR. WHITING: I think -- my guess, since I know what it is, my
13 guess is that he'll have enough time to respond by Wednesday, and if he
14 doesn't he can make an application for more time. But my guess is that
15 he'll find that that will be enough time. It's very narrow and he'll
16 recognise it; he'll know what it is.
17 JUDGE MOLOTO: Okay.
18 Shall we do it that way, then, Mr. Milovancevic? We will set at
19 Wednesday. If you're not able to meet the Wednesday deadline, you can
20 apply for an extension of time. And of course the Chamber will look at
21 it -- well, I wouldn't say favourably but kindly.
22 MR. MILOVANCEVIC: [Interpretation] It's okay, Your Honour.
23 JUDGE MOLOTO: All right. So Wednesday, that's the 22nd. And
24 then what needs to be done thereafter?
25 MR. WHITING: Well, Your Honours will have to make a decision on
1 the motion, of course, and decide whether it's admitted or not, make a
2 decision on the -- if the Defence files a written application for the
3 Court to call its own expert witness, make a decision on that.
4 JUDGE MOLOTO: And all those can be made without having to come
5 into court.
6 MR. WHITING: That's correct.
7 JUDGE MOLOTO: Right.
8 MR. WHITING: And then if the Defence wishes to put in additional
9 written documentation into evidence, they will have to make some -- file a
10 motion for that. And perhaps we could set a date for that, at least a
11 tentative date, again that could be extended if more time is required.
12 JUDGE MOLOTO: A date for what?
13 MR. WHITING: For the Defence to file, if it wishes to file a
14 motion to admit additional evidence, additional documentary evidence into
15 the case, maybe we could ask that that be done by Wednesday as well. And
16 again if the Defence needs more time, they can apply for it but at least
17 it's not drifting. At least we have a date and we can start to get these
18 things done.
19 JUDGE MOLOTO: Additional documents. Are you talking by way of
21 MR. WHITING: No. I was actually talking -- it was in response to
22 what Mr. Milovancevic said about Rule 68 documents that he may have some
23 Rule 68 documents.
24 JUDGE MOLOTO: Sure. Well, yes, Mr. Milovancevic, the Rule 68
25 documents, do you think you'll have gone through them? Yeah, you had
1 indicated that by Monday you would have done them, so you could be ready
2 with them by Wednesday. And if you wish to put any of them into evidence,
3 will you be able to do so by Wednesday, the 22nd?
4 MR. MILOVANCEVIC: [Interpretation] Your Honour, we received the
5 materials quite recently, and it's the -- the material is quite voluminous
6 and you can of course set a rough deadline, but I cannot really give you a
7 specific, accurate answer, without being frivolous because any assessment
8 on my part at this point would be very, very rough, and I'm sure that you
9 don't want me to give you a date just for giving you -- just for the sake
10 of giving such a date to you, so you so please bear that in mind.
11 JUDGE MOLOTO: I perfectly understand. Let's do it like we did
12 the response to the 92 bis. We'll set it at the 22nd of November. If
13 you're not able to meet that deadline, you'll make an application and
14 the Chamber will look at it also.
15 And then what's the next step thereafter?
16 The Bench is not able to say when the site report will be filed
17 because it's still with the technical people who are working on it. We
18 don't know anything, how soon they will be ready. Okay? And to that
19 extent, therefore, we are not able to give a deadline for that.
20 Yes, Mr. Milovancevic.
21 MR. MILOVANCEVIC: [Interpretation] Your Honour, I just wanted to
22 indicate that an issue should be raised now that you talked about the
23 strict adherence to the 10th of December deadline. Now we are extending
24 the deadlines for the completion of our case, and we are not to blame for
25 that. We should be dealing with urgent matters, and at the same time, we
1 should be producing our final trial briefs and we have to prepare our
2 closing arguments for the 11th of January. We will be filing a motion at
3 one point with the Trial Chamber. I'm sure that it would not, in fact,
4 have any effect on the final outcome of the trial. It is our belief that
5 it would really not affect the pace of this trial if we were to submit our
6 trial brief on the 10th of December or 10th of January. We will probably
7 be filing a written motion to this effect.
8 I merely wanted to acquaint you with the position of the Defence.
9 Your Honours, since January this year, we have been under a lot of
10 pressure. We had to work very hard. We never had any vacation.
11 Everybody in this case had the recess; we didn't. We had a huge pile of
12 evidence, 12.000 pages, and if we were to apply to you to move the
13 deadline for the final Defence brief, it would be in the interests both of
14 the accused and of justice, because both -- all of us here, we, the
15 Judges, our colleagues from the Prosecution, would be given more time and
16 a lot of this time would, of course, be during the recess.
17 And if I may say so, Judge Moloto, it is not my intention to have
18 the deadlines extended or to file anything beyond the deadlines set by the
19 Trial Chamber, and I don't want to ask for you for your permission now, of
20 course, or to draw on this matter. We would be filing a written motion as
21 required by the rules. I merely wanted to acquaint you with the situation
22 because this is something that would really affect the quality of our
24 We've all been doing this for years, this has been our job, and
25 because of this deadline, the 10th of December, we will be under such
1 pressure and we would be so short of time and this will be unnecessary
2 because we will go into recess on the 15th of December, and we will
3 continue with our work on the 10th -- on the 11th of January.
4 This is what I wanted to point out, and I have to apologise for
5 taking up so much of our time.
6 JUDGE MOLOTO: Thank you. Thank you, Mr. Milovancevic. But you
7 see, what I do not understand in your argument is that you are saying you
8 just want to point -- to indicate that an issue should be raised now, that
9 I now talked about the strict adherence to the 10th of December deadline
10 and then you go on to say: Now we are extending the deadlines for the
11 completion of our case, and we are not to blame for that. Who are
12 the "we" who are not to blame for that? Neither is this Chamber to blame
13 for that. These are issues that have been raised by the parties. They
14 are saying to me they want to file this document and that document, so why
15 must now the Chamber be sort of -- have a finger pointed at it for these
17 These things happen. Mr. Milovancevic, if it does happen that the
18 Chambers has to consider the deadline, it will do so on cogent reasons
19 that will be before it at the time. Don't put the cart before the horse.
20 MR. MILOVANCEVIC: [Interpretation] Your Honour, I don't want to be
21 misunderstood here. I took your warning as the last warning both to the
22 Prosecution and to the Defence, but the "we" referred to us. I never
23 meant to say that the Trial Chamber caused anything.
24 JUDGE MOLOTO: Who are the "us"? You've still not told me who are
25 the "us"?
1 MR. MILOVANCEVIC: [Interpretation] I mean both my learned
2 colleagues from the Prosecution and us from the Defence and the Trial
3 Chamber, which has so many things to do regarding the site visit report
4 and all that.
5 So my appeal was an attempt to give you some food for thought in a
6 broader sense.
7 JUDGE NOSWORTHY: [Previous translation continues] ... the
8 interpreter, Mr. Milovancevic.
9 JUDGE MOLOTO: Thank you very much, Mr. Milovancevic.
10 You were trying to get on your feet, Mr. Whiting.
11 MR. WHITING: Thank you, Your Honour.
12 I don't recall the date that the Scheduling Order was issued but
13 since it was -- since that date, we on our side have oriented our work and
14 our resources to meet those deadlines.
15 JUDGE MOLOTO: You have been aware of it since the 7th of
17 MR. WHITING: Okay. And you'll have noticed that there are only
18 two of us who have been appearing in court and that has been in order to
19 meet those deadlines. And all that to say -- and of course we anticipate
20 that the next few weeks are going to be very intense and very busy. We
21 would be really grateful to have this issue resolved about the deadline
22 immediately because what I would like to avoid is spending the next three
23 weeks killing ourselves getting this thing done to -- only to find that
24 the deadline gets pushed by a month.
25 So if we -- if the Defence could be ordered to file -- if they are
1 going to file a motion for an extension that that be done by tomorrow or
2 by Monday so that we can get a resolution of this immediately so we know
3 and we can plan our work. We are ready to meet the deadline. We will do
5 JUDGE MOLOTO: The deadline stands as we speak. Subject to any
6 motions that can be filed by either party to ask for it and it would -- as
7 I said, cogent reasons must be placed before the Court because all these
8 things that we have been talking about are not coming as emergencies.
9 These are things that have been built into the case and they've been
10 known, we've always known that these things -- rebuttal evidence is likely
11 and all those things so -- yeah. We are standing at those deadlines for
12 now until somebody else comes up with an application.
13 Does that conclude this session? Thank you.
14 MR. MILOVANCEVIC: [Interpretation] When do we reconvene, then?
15 Because I don't know at this point when I should be back in court. Could
16 you please give me an answer.
17 JUDGE MOLOTO: Wednesday, the 22nd -- wait a minute. Wait a
18 minute. You are very right, Mr. Milovancevic.
19 [Trial chamber and legal officer confer]
20 JUDGE MOLOTO: A courtroom will be available only on Monday, in
21 the morning, on Tuesday, in the morning, and on the 29th of November in
22 the morning. Now, Monday and Tuesday are before the 22nd of November,
23 which is the date by when responses are supposed to be filed.
24 Yes, Mr. Whiting.
25 MR. WHITING: Whatever date works is fine with us as long, as the
1 formal closing of the case does not become a reason for changing the
2 deadlines for the final brief, which I think the Court has indicated it
3 will not. Regardless of when we sort out these matters and how long they
4 drift for, that is not going to be a reason for changing the deadlines for
5 the final brief. There may be other reasons and so forth but not that.
6 Then if that's the case, then whatever day -- we are in some sense
7 indifferent, whether it's next week or the week after, it doesn't really
9 JUDGE MOLOTO: Well, Courtroom III may be available on the 24th of
10 November too.
11 You understood that, Mr. Milovancevic? All these things, no
12 matter how long they take, can happen but side by side with preparing
13 ourselves to meet the deadline of the 10th or the 11th, whatever the date
14 is, of December.
15 May I then suggest that we adjourn to the 24th of November, in
16 Courtroom III, and we will probably have to confirm this because we are
17 saying it now simply by looking at the availability. We haven't spoken
18 with the relevant people in registry.
19 MR. WHITING: I personally cannot be here that day. But that's
20 fine, Mr. Black will be here.
21 JUDGE MOLOTO: Judge Hoepfel is not available on the 24th when the
22 courtroom is available.
23 MR. MILOVANCEVIC: [Interpretation] Your Honour.
24 JUDGE MOLOTO: Yes, sir.
25 MR. MILOVANCEVIC: [Interpretation] I wanted to ask you if we
1 are -- we have this dilemma whether to reconvene on the 24th or on
2 the 29th. I have some obligations and perhaps it would be best to then
3 set the date of the 29th because then there will be no doubts whatsoever.
4 We will all know that that is the date that we will all come back
6 JUDGE MOLOTO: Okay. Is that agreed?
7 Then the matter -- let the matter stand adjourned then to the 29th
8 of November. That will be in the morning at 9.00. I'm not able to say
9 which courtroom at this stage. I'm not quite sure which courtroom is
10 available on the 29th. It looks like we are being sorted out.
11 [Trial Chamber and registrar confer]
12 JUDGE MOLOTO: Sorry about all that, doing -- finding courts when
13 we are supposed to be in court.
14 It looks like it would make sense to adjourn to quarter past 10.00
15 on the 29th of November, in Courtroom III. Okay? 10.15. We shouldn't be
16 long also. We may probably use it for about an hour or so.
17 Okay. If there is nothing else, court adjourned.
18 --- Whereupon the hearing adjourned at 2.59 p.m.,
19 to be reconvened on Wednesday, the 29th day of
20 November, 2006, at 10.15 a.m.