Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12099

1 Thursday, 22 March 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.00 a.m.

5 JUDGE BONOMY: Mr. Hannis, can I invite you to shine some light on

6 the way forward.

7 MR. HANNIS: Your Honour, I was hoping that you would shine some

8 light for me. I don't know best how to proceed. I do know that I've

9 tried to make some inquiries regarding what would happen if the 98 bis

10 motion were stayed for a while and we got some kind of positive decision

11 or positive feedback from the US about General Clark, how soon he could

12 physically be here if other hurdles were eliminated. I don't have a firm

13 answer for that, Your Honour. It could be -- from the information I have,

14 it appears it wouldn't be a matter of days, it would be more a matter of

15 weeks or maybe even into May in terms of availability. I think I should

16 let you know that, because that may have an impact on how you choose to

17 proceed.

18 JUDGE BONOMY: Has there been discussion among counsel to see

19 if --

20 MR. HANNIS: No, Your Honour.

21 JUDGE BONOMY: All right. So you're no further forward than you

22 were yesterday. You believe that you can close your case, have the 98 bis

23 hearing, and then apply to re-open it?

24 MR. HANNIS: Yes. I don't know if I could succeed in that case --

25 JUDGE BONOMY: No, no, but that's on the argument of -- I think

Page 12100

1 the wording in fact of the principle might be evidence not available to

2 you at the time.

3 MR. HANNIS: Depends on the definition of "availability," Your

4 Honour.

5 JUDGE BONOMY: Yes, it's as simple as that.

6 MR. HANNIS: Yes.

7 JUDGE BONOMY: And in the past, it's really been a question of

8 whether the evidence existed or was known about. This is a rather

9 different -- I'm not suggesting --

10 MR. HANNIS: Yes, yes.

11 JUDGE BONOMY: I'm not saying it doesn't fall within that idea. I

12 at the moment don't know. But -- we seem to be on the same wave --

13 MR. HANNIS: Yes.

14 JUDGE BONOMY: -- length as to what the problem is.

15 MR. HANNIS: Yes. It certainly doesn't fall in the traditional --


17 MR. HANNIS: -- way that it's been interpreted but I see an

18 argument that we can a make.

19 JUDGE BONOMY: All right. And you're going to take -- your

20 position is you're prepared to take a chance on the success of that

21 argument?

22 MR. HANNIS: Well, because of the history in connection with this

23 particular matter, I just don't feel that I'm on firm ground to ask you to

24 wait for a while for some indefinite possibility that may or may not

25 happen --

Page 12101

1 JUDGE BONOMY: Yeah, but --

2 MR. HANNIS: -- when we've all worked so hard and have had a

3 strong interest in getting this case completed as soon as possible.

4 JUDGE BONOMY: Don't feel hidebound by technical issues such as

5 the fact that there is an order that your case should close on the 23rd of

6 March. You're in a different situation from the one you were in when you

7 said you would close it on the 23rd of March, slightly different.

8 MR. HANNIS: Yes, yes.

9 JUDGE BONOMY: So I hope it's not that that's stopping you and

10 that you're looking at a much broader picture and the reality rather than

11 the technicality of the situation.

12 MR. HANNIS: No. It's -- it's a reluctance, Your Honour, to put

13 us all on hold for some sort of uncertain future. If I knew for sure that

14 we succeeded that everything -- all obstacles would be removed and that

15 General Clark could come here and testify within a reasonably short

16 time-frame, then I would say, Yes, Judge, I'm requesting that let's delay

17 the 98 bis until that can happen. But because I don't feel firm about

18 when that might be, that's my hesitation.

19 JUDGE BONOMY: Thank you.

20 Mr. O'Sullivan.

21 MR. O'SULLIVAN: Well, our position is subject to what you just

22 said that you ordered this case to close the 23rd of this month. We're

23 prepared to proceed to 98 bis submissions Monday morning and that's where

24 we stand. The Prosecution could have called its witnesses any time since

25 the case opened in July; that's an important factor.

Page 12102

1 JUDGE BONOMY: Only if we allowed them.

2 MR. O'SULLIVAN: Well, they were on notice of May, Your Honour, of

3 last year about these Rule 70s and Rule 70s are complicated by their very

4 nature and one could ask why would you wait until the last week of a trial

5 when you know that you have a high-ranking US general with all the

6 circumstances that surround Rule 70, but we'll leave it with Your Honour.

7 JUDGE BONOMY: Well, I understand that, but what we would at all

8 costs want to avoid is creating complications that we don't require. So

9 it would be very easy for us just to say, Well, we'll postpone the 98 bis

10 and make sure it takes place after all the Prosecution evidence has been

11 led rather than get into deep water over technical issues. I mean, it is

12 attractive to do it next week, but there are attractions about not doing

13 that.

14 I think we will require to adjourn to consider this. Before we

15 do, there's a couple of things I think I can deal with.

16 [Trial Chamber confers]

17 JUDGE BONOMY: A motion was presented on behalf of Mr. Lukic for

18 judicial notice of facts affecting the evidence of the witness Protic, a

19 very succinct and, if we may say so, precise statement of the clear legal

20 basis for refusing this application is set out in Mr. Hannis's response.

21 I'm taking this one home to frame it, Mr. Hannis.

22 And in the circumstances, since the motion doesn't satisfy either

23 branch of the test under Rule 94, we deny the motion.

24 [Trial Chamber and legal officer confer]

25 JUDGE BONOMY: Mr. Sepenuk, we can probably save you and

Page 12103

1 Mr. Hannis and the planet the use of unnecessary paper for filing by

2 regarding the joint Defence and Prosecution submission for admission of

3 P924, 936, 930, 934, and 937 as made orally and dealt with orally. So we

4 grant admission to these documents. You don't need to do anything

5 further.

6 MR. SEPENUK: Thank you, Your Honour.

7 JUDGE BONOMY: Mr. O'Sullivan.

8 MR. O'SULLIVAN: Just one last matter. Yesterday I informed you

9 that we had agreed with the Prosecution on certain documents as well.


11 MR. O'SULLIVAN: And you asked me whether the stipulations were by

12 all accused.


14 MR. O'SULLIVAN: They all agreed. I have the document in my hand

15 which just needs signing. I think it's probably more efficient to

16 actually file this because there's a long list, but it's agreed by all

17 parties and it just needs to be signed this morning and filed.

18 JUDGE BONOMY: Well, could you give me a copy of that just now,

19 please.

20 [Trial Chamber and legal officer confer]

21 JUDGE BONOMY: This one I think is best dealt with the way you

22 suggest, Mr. O'Sullivan. I'm interested, though, in other connections

23 with the widespread reference to Vojska. These are all examples of

24 publication in Serbo-Croat and then English translation following on that,

25 are they?

Page 12104

1 MR. O'SULLIVAN: That's correct, CLSS translations.

2 JUDGE BONOMY: Thank you.

3 Well, I can return that to you to deal with through the filing

4 process.

5 I want to ask you another question. Applications have been made

6 for provisional release. There's an issue over the appropriate stage of

7 dealing with the applications, assuming time runs and they're responded to

8 in the usual way. If we postpone consideration of the 98 bis motion - if,

9 I say, we postpone it - do you accept that it wouldn't be appropriate to

10 deal with these applications until we had dealt with 98 bis? Or do you

11 want us to consider them in advance of that?

12 MR. O'SULLIVAN: I think you'll see that the obvious timing of

13 these motions is that it would be the close of the Prosecution's case. I

14 don't think the postponement of 98 bis would affect that situation. I

15 think that if Your Honours want to allow the Prosecution the normal

16 time-frame to respond, that's fine; if you want to expedite it, we have no

17 objection to that either. I think the matter can be dealt with in the

18 normal course. I don't see a connection between the 98 bis and our

19 application. The connection we saw was the close of the case or the close

20 of the evidence, so I think it can be dealt with forthwith.

21 JUDGE BONOMY: Thank you.

22 Mr. Fila.

23 MR. FILA: [Microphone not activated] -- [Interpretation]

24 Submission that was precisely linked to a 98 bis. I thought that I was

25 supposed to write it afterwards and that's why I didn't submit it so far.

Page 12105

1 So you'll probably receive the same submissions from other Defence teams.

2 THE INTERPRETER: The beginning of this intervention was not heard

3 because the microphone was not activated.

4 JUDGE BONOMY: Well, I have copies of three. Well, the Chamber

5 will adjourn and consider the question of when it's appropriate to hear

6 the 98 bis submissions, and we'll resume as soon as we've decided what to

7 do. Let's set 10.00 as the time, and if it's later, a message will be

8 conveyed to you.

9 --- Recess taken at 9.19 a.m.

10 --- On resuming at 10.04 a.m.

11 JUDGE BONOMY: Mr. Hannis, this is the simplest question I think I

12 could possibly ask you: Do you rest your case now?

13 MR. HANNIS: Well, Your Honour, I guess with the provision that --

14 I should tell you there's one additional matter I need to bring to your

15 attention concerning General Vasiljevic. You'll recall in his testimony

16 about a Joint Command meeting on June the 1st. He indicated that he had

17 an entry in his diary which he did not have with him. We have since

18 received that entry. It's being translated and I do want to submit that

19 when it's translated.

20 JUDGE BONOMY: Can I make it clear that resting your case will be

21 subject to the disposal of any currently pending matters, which will be

22 resolved by tomorrow, and if it's a translation issue of that nature we,

23 would permit you to file the untranslated document marked for

24 identification and allow you to have it taken into account in the 98 bis

25 submission as long as you were able to present to us at least a draft in

Page 12106

1 English.

2 MR. HANNIS: Thank you. Your Honour, and I'm sorry to appear to

3 be vacillating at this point, but during the break I thought about

4 everything that was discussed earlier. We would like to be able to

5 present General Byrnes to you -- I mean, Mr. Byrnes and General Clark to

6 you and Mr. Lilic, but we haven't been able to do that. If we had a

7 recess of 30 days I don't know if we would be able to get some or all of

8 them in. I would like to do that. That's my hesitation in saying: Yes,

9 I rest now.

10 JUDGE BONOMY: So we take it your position is now different from

11 yesterday and indeed from this morning earlier?

12 MR. HANNIS: Yes, Your Honour, having considered all the remarks

13 that were made and thinking -- trying to weigh the pros and cons, yes.

14 JUDGE BONOMY: And what's the effect of the expiry of a recess of

15 30 days combined with a successful appeal and the non-availability of any

16 other witness by that date, including General Clark?

17 MR. HANNIS: Your Honour, then, if I understand your question, at

18 that time if we are not able to produce any of those individuals, then we

19 would rest.

20 JUDGE BONOMY: Mr. O'Sullivan, your comments on this new

21 situation.

22 MR. O'SULLIVAN: Well, it's certainly a new situation. I go back

23 to the order you made that the Prosecution would close. I see that you're

24 maybe inclined to be re-considering that.

25 JUDGE BONOMY: Well, I was anxious -- we're all anxious to be sure

Page 12107

1 that this wasn't seen as something imposed by the Trial Chamber. That

2 order was simply a reflection of what the Prosecution said they would do

3 on more than one occasion. We weren't in an adversarial situation making

4 a determination that there would be a completion of the Prosecution case

5 by then; on the other hand, when we left the bench a short while ago we

6 did think the simple answer to the question I had just asked would be yes,

7 but it's not. So before we decide what to do, you have an opportunity to

8 address us.

9 MR. O'SULLIVAN: Well, this is a very important matter and there

10 are six of us on this side, and --

11 JUDGE BONOMY: So we're off again.

12 The -- one other thing that's developed here, though, is a

13 time-frame that's at least manageable, whereas earlier this morning we

14 were faced with an uncertain time-scale with an indication of a

15 possibility of being in the month of May before we heard the evidence,

16 never mind proceeded to 98 bis. So at least this is a firmer indication.

17 [Trial Chamber confers]

18 JUDGE BONOMY: Well, we think it appropriate to give you some time

19 to consider your position. How long do you wish?

20 MR. O'SULLIVAN: Well, 20 minutes, 30 minutes, no more.

21 JUDGE BONOMY: Let's make it quarter to 11.00.

22 The reason for asking that question was that whatever way the

23 matter was decided on the strength of the earlier position taken by

24 Mr. Hannis, it's possible to see legal issues further down the line. And

25 I hope you'll excuse us for trying to foresee what is going to be the

Page 12108

1 simplest way forward in the long run. That's what we had been trying to

2 work out. We are very sympathetic to the idea of closing the case today

3 and having the 98 bis hearing. And we can see certain legal issues down

4 the line if we do that, but equally if we don't hear it immediately, we

5 can see perhaps fewer legal issues but other practical issues down the

6 line. And we are trying to simplify the future for the Trial Chamber and

7 for the parties as best we can.

8 So we'll give you the time you ask.

9 MR. O'SULLIVAN: Just perhaps you can clarify this for us before

10 we go back and discuss it. What is unclear, to me at least, is the timing

11 of the appeal against the Clark ruling. There's no -- I don't think

12 there's any indication or any way of knowing --

13 JUDGE BONOMY: Yeah. I've actually had an indication, but I don't

14 know if I can share that with you because it was very informal and I don't

15 know how firm it is. I'm happy to make inquiry just now to see if

16 something definite can be projected, and if I can, I'll have that

17 information given to you. I was purely curious and got a very, very

18 informal indication, which I couldn't rely on at this stage.

19 We'll resume at quarter to.

20 --- Recess taken at 10.13 a.m.

21 --- On resuming at 11.59 a.m.

22 JUDGE BONOMY: Well, our lives aren't long enough for us to ask

23 Mr. Hannis again about this matter, so I'll go straight to Mr. O'Sullivan.

24 MR. O'SULLIVAN: Well, thank you, Your Honour. Your Honour was

25 quite right yesterday when you said the one saga in the trial had ended.

Page 12109

1 We submit that you should put an end to this second saga. We oppose the

2 request by the Prosecution, which we all have received in the last

3 half-hour, to allow the case to remain open for the period of 30 days

4 following an Appeals Chamber decision on the Clark certification and in

5 that time to seek to call three witnesses, Clark, Byrnes, and Lilic. And

6 here are the reasons why we oppose that.

7 Yesterday, and I'm referring to page 12096 of the transcript, the

8 Prosecutor was quite clear. He said that the Prosecution rested. He said

9 on that same page that we could proceed with the 98 bis submissions on

10 Monday. And when asked: "What happens if someone has been acquitted by

11 then?" Meaning after the appeal. The answer was: "Well, that's the

12 Prosecution's loss."

13 The Prosecution was prepared to close its case. Now, before I

14 turn to Clark let me address the submission that the Prosecution has made

15 in relation to Byrnes and Lilic. There's absolutely no connection between

16 the pending appeal on the Clark decision and Byrnes and Lilic. The

17 Prosecution cannot use the serendipity of the Clark appeal to attempt to

18 keep its case open to call other witnesses. In other words, if this

19 Chamber had not certified the Clark decision, Byrnes and Lilic would be

20 out, the case would be closed. Articles 20 and 21 of the Statute provide

21 that the accused must receive a fair and expeditious trial. Byrnes and

22 Clark are out -- Byrnes and Lilic are out. Thank you. Now -- that's it.

23 In regards to General Clark we say that the Prosecution's position

24 was made clear, that if an appeal succeeds they would move to re-open its

25 case. Now, again we say that there are issues of fundamental fairness and

Page 12110

1 due diligence on the one hand and issues regarding the timing of

2 disclosure which is still pending, and I'll deal with both. Your Honour

3 put the Prosecution on notice last May of -- in relation to every Rule 70

4 witness, telling the provider to make up its mind. And we've been in this

5 courtroom now since July of last year, and if the Prosecution ran the risk

6 of waiting until the 11th hour to bring a major Rule 70 witness, I say the

7 Prosecution has to live with the consequences of having been told as early

8 as May of last year that this could happen.

9 Now, in relation to disclosure, I wish -- I think to assist --

10 JUDGE BONOMY: Well, that doesn't tell me anything,

11 Mr. O'Sullivan. What are you saying are the consequences of that, bearing

12 in mind that it's in the hands of the Appeals Chamber now?

13 MR. O'SULLIVAN: The consequences of that are precisely what the

14 Prosecution said yesterday: We proceed with 98 bis Monday. If the

15 Chamber's decision is reversed, it applies to re-open and if someone's

16 acquitted, that's his loss.

17 I have in hard copy, which I think may assist the Chamber and the

18 parties, and I could ask the usher to distribute a copy to the Bench and

19 one to the Prosecution. And while that's being distributed, Your Honour,

20 this is a filing made on behalf of General Ojdanic, and I'm going to speak

21 in connection with the pending disclosure in relation to General Clark,

22 should he be a witness. You have before you General Ojdanic's opposition

23 to motion to call General Wesley Clark as a Prosecution witness and it's

24 dated 28 December 2006. And I would direct you to page 9497, that's the

25 stamp number at the top right-hand corner of the page, 9497.

Page 12111

1 My submission here is that on the assumption that the Appeals

2 Chamber reverses your decision and Wesley Clark can be called as a

3 witness, there is still pending from the Rule 70 provider disclosure. And

4 you'll see the letter that I've referred you to at 9497. It's from the US

5 Embassy to General Ojdanic's counsel. And you can see that the US

6 government has taken the position that it's premature under Rule 70 to

7 provide materials to the Defence until and unless there's an order from

8 the Chamber granting certain protective measures for the testimony of

9 General Clark.

10 Now, this raises a number of issues, we say --

11 JUDGE BONOMY: Sorry, let me read this. The page I'm looking at

12 doesn't say that.

13 MR. O'SULLIVAN: Well, it should be -- it's page -- at the bottom

14 it's page 12. It's a letter dated 12 December 2006 from the Embassy of

15 the United States to Mr. Peter Robinson.

16 JUDGE BONOMY: It doesn't say anything about the Chamber granting

17 protective measures, does it?

18 MR. O'SULLIVAN: Well, it's the last sentence of the first

19 paragraph.

20 JUDGE BONOMY: Oh, the first paragraph.

21 MR. O'SULLIVAN: It says -- it begins: "I'm writing to inform you

22 that the United States Government has conditionally authorised General

23 Clark. The authorisation is contingent on the Prosecution securing a

24 court order granting certain protective measures."

25 JUDGE BONOMY: But they don't go on to say, do they, that dealing

Page 12112

1 with the inquiries needs to be delayed?

2 MR. O'SULLIVAN: No. I believe the letter in the second paragraph

3 uses the word "it's premature to disclose the materials as requested under

4 Rule 70." In other words, the American position is that until there's an

5 order from this Chamber granting the protection sought, there is no

6 disclosure, and I can represent to you that the Ojdanic Defence has not

7 received any disclosure.

8 JUDGE BONOMY: But read the whole thing, Mr. O'Sullivan. "We

9 believed these requests were premature. At the time it was not clear

10 whether General Clark would be authorised to testify. Consequently, it

11 was not evident which subject areas would fall within the scope of

12 cross-examination. Now that we have conditionally authorised testimony on

13 specific areas, we believe it would be appropriate to re-visit this

14 issue."

15 MR. O'SULLIVAN: Right.

16 JUDGE BONOMY: So I assume there's been ongoing communication for

17 the last three months between the Ojdanic team and the American

18 government.

19 MR. O'SULLIVAN: I can perhaps leave it to Mr. Visnjic who is much

20 more --

21 JUDGE BONOMY: Very well.

22 MR. O'SULLIVAN: And perhaps it might be appropriate for him to

23 respond to your question.


25 Mr. Visnjic.

Page 12113

1 MR. VISNJIC: [Interpretation] Your Honours, according to the

2 documentation that we have at our disposal here, we have had a certain

3 correspondence with the US government. No material has been received from

4 them. Moreover, not knowing about how things would turn out today we

5 wrote and filed today a letter that should have been sent through the

6 Registry, and I believe Mr. O'Sullivan has a copy on his desk and it would

7 be a good idea if a copy of that document could be made available to you

8 and the Prosecution so that you can see for yourselves at what stage of

9 disclosure we are currently with the US government and with NATO. To

10 date, we have not received a single document from them --

11 MR. HANNIS: I'm sorry to interrupt, Your Honour, but it's come to

12 my attention that these letters, because they're discussing Rule 70

13 matters, may actually be confidential matters and that shouldn't be part

14 of the public proceedings at this point.

15 JUDGE BONOMY: It's not necessary for the detailed terms of these

16 to be discussed at the moment. We've got the documents and can look at

17 them.

18 MR. VISNJIC: [Interpretation] Your Honours, let me just give you

19 some additional information. We had planned to file this letter today,

20 thinking that a decision would be made today about 98 bis, and we wanted

21 to remove from our shoulders a possible problem of undue delay on the part

22 of the Defence. What I want to say, and Mr. O'Sullivan has already raised

23 this issue, when and whether these documents are going to be disclosed may

24 affect the testimony and the evidence by General Clark; and depending on

25 that, we may take further legal action that may lead to further delay of

Page 12114

1 Mr. Clark's evidence, even beyond what the Prosecutor has told us about.

2 So that there is -- there are more problems than mentioned previously with

3 that evidence.

4 JUDGE BONOMY: Mr. Visnjic, what's been happening since the 12th

5 of December?

6 MR. VISNJIC: [Interpretation] Your Honour, from 12th December

7 until today, according to the information I have here, there has been a

8 certain communication. They asked us to specify our request and include

9 more details, but I don't have all that communication here. If you give

10 me some time, I'll come up with it.

11 JUDGE BONOMY: It sounds like a matter which will have to be

12 addressed as and when and if it arises.

13 MR. VISNJIC: [Interpretation] Correct, Your Honour. I just

14 wanted -- in fact, all of us wanted to emphasise the complexity of this

15 issue and the consequences that setting a precise date for General Clark's

16 testimony may cause. We believe that everything is too uncertain at this

17 moment for us to be able to state our position any more precisely, which

18 in its turn makes it incumbent upon us to decide to what extent this make

19 effect an efficient and fair trial.

20 JUDGE BONOMY: Thank you.

21 Have you something else to say, Mr. O'Sullivan?

22 MR. O'SULLIVAN: No. Just to sum up then: We say that we should

23 proceed with 98 bis Monday. Let the Appeals Chamber deal with the Clark

24 decision as it sees fit. The Prosecution can take its position

25 thereafter, and we should -- the case should close and we proceed to 98

Page 12115

1 bis Monday. And just parenthetically, not to deviate at all from what I

2 have been saying, is that keeping this case lingering as it is - and of

3 course we would also say Byrnes and Lilic are out - but keeping this case

4 lingering as it does may very well have an impact on the fairness of our

5 preparation time during the Defence case. And we should not be punished,

6 the Defence should not be punished for any lack of due diligence on the

7 Prosecution's part for not calling its witnesses in a timely fashion and

8 dealing with all the issues that would arise particularly in relation to a

9 Rule 70. Those are my submissions.

10 JUDGE BONOMY: It's not immediately obvious why preparations for

11 Defence cannot continue in the interim.

12 MR. O'SULLIVAN: Well, that's quite correct, but, Your Honour, the

13 accused need to know when the Prosecution case closes against them. They

14 need to know -- there has to be some closure and some certainty, and

15 that's only fair. That's only fair to us.

16 JUDGE BONOMY: Thank you.

17 Mr. Hannis.

18 MR. HANNIS: I don't disagree with that, Your Honour, but if you

19 grant our request, there will be certainty as to when that date will be.

20 It will be no later than 30 days after the appellant decision on the

21 pending matter regarding General Clark. And to the extent that we are

22 successful in persuading you and actually being able to get General Clark

23 and/or Mr. Byrnes and/or Mr. Lilic here to testify and if they actually do

24 testify, I certainly think it would be fair to the Defence -- if it took

25 three weeks for that to happen and it included a week of preparation time

Page 12116

1 for cross-examination of those witnesses, it would not be unfair for Your

2 Honours to give them an additional four weeks for preparation of their

3 Defence case to make allowance for the additional work that they've had to

4 do in connection with the Prosecution case, but I may be getting ahead of

5 ourselves a bit here, but I did want to make that remark.

6 JUDGE BONOMY: Thank you.

7 MR. HANNIS: Thank you.

8 [Trial Chamber confers]

9 JUDGE BONOMY: Mr. O'Sullivan has raised a legal issue in relation

10 to the commitment to rest the case which we consider we have to give

11 further thought to and we will adjourn to do that and resume at 1.15.

12 --- Recess taken at 12.37 p.m.

13 --- On resuming at 1.11 p.m.

14 JUDGE BONOMY: The Chamber has determined that yesterday the

15 Prosecution did not close its case. An indication to the effect that the

16 Prosecution rested was given. That was then questioned by the Trial

17 Chamber in light of the outstanding appeal filed in the course of

18 yesterday. The Prosecution reconsidered their position, as invited by the

19 Chamber, and now proposes that closure of the case should be stayed for 30

20 days -- until 30 days after the appeal is determined.

21 What we have decided to do is this: We have decided that we will

22 stay closure of the Prosecution case until at least the 16th of April, and

23 in order to give effect to that, we will vacate that part of our order of

24 the 5th of March which specified the 23rd as the deadline.

25 On the 16th, if the appeal has failed and the Prosecution has

Page 12117

1 available either Byrnes or Lilic, then we would expect these witnesses to

2 be led then, there and then, and in their absence to proceed straight to

3 hear the 98 bis submissions. If the appeal succeeds, we would expect to

4 be told precisely when Wesley Clark would give evidence. We regard the

5 Prosecution motion as a clear statement that they would not request that

6 he give evidence so that they are at dates which would prevent closure of

7 the Prosecution case within 30 days of the determination of the appeal.

8 Beyond that - and I'm thinking of the possibility of Byrnes and

9 Lilic or either of them being available at some stage - we would require

10 to address that as a separate issue on the 16th of April if they were not

11 available on that date to give evidence.

12 I want now to deal very briefly with the remainder of orders that

13 are required leading to the commencement of the Defence case. We do not

14 see this as having a significant impact on -- or such a significant impact

15 on preparation of the Defence case as to require alteration of the order

16 we've already made in respect of the 65 ter lists. The lists have to be

17 compiled and they can be modified, if necessary, in the light of evidence

18 made, but the list will be the list and available for that purpose.

19 That's how we see it at the moment, and we find it difficult to think that

20 this will change it but I will hear submissions on that in a moment.

21 In connection with that, we would also like to hear further that

22 the Defence believe that being given a significant period of time between

23 now and the start of the Defence case will result in a shortening of that

24 case; in other words, that what's happened since that indication was

25 previously given confirms that that indication was an accurate one.

Page 12118

1 Mr. Ackerman, I think we would like to hear from you on that

2 point.

3 MR. ACKERMAN: You want to hear from me on that now, I take it?


5 MR. ACKERMAN: If I don't misunderstand, Your Honour, you're

6 saying has anything happened since you -- since we last had communication

7 about that to indicate that our position that we can shorten up the

8 Defence case by this use of time is a correct one.

9 JUDGE BONOMY: Yes. The indications you've been given so far are

10 that the gap between the Prosecution and the Defence case or the

11 substantial -- the bulk of the Prosecution -- the vast bulk of it and the

12 commencement of the Defence case is far longer than has been given in any

13 other case to date in the Tribunal. And we want to be sure before we

14 finalise the arrangements for the commencement of the Defence case that

15 you're confidence that this period will profitably result in a shortening

16 of the Defence case has not been dented by anything that's occurred in the

17 intervening period.

18 MR. ACKERMAN: I think it is not, Your Honour. I think if -- at

19 least I can only really speak mostly from the Pavkovic Defence standpoint,

20 because I haven't been in touch with the other teams regarding their

21 preparation to this point, but I can tell you that everything's that's

22 happened since then in terms of our preparation along that line gives me

23 solid reason to believe that we are going to winnow things down over time

24 and shorten our Defence presentation as a result. I think it's pretty

25 clear to me that that is going to happen.

Page 12119

1 As long as I'm on my feet, with regard to the 65 ter.


3 MR. ACKERMAN: It seems to me that the period of time that we

4 spend back in this courtroom after the 16th of April, whatever that period

5 of time is, is time we would have been meeting with witnesses and putting

6 together our Rule 65 ter materials. So whatever amount of time is taken

7 away from us by additional time in this courtroom is time we've lost in

8 that process. And assuming that your June 15th date was reasonable - and

9 I have no argument that it wasn't - then it's also reasonable to extend it

10 by whatever amount of time is taken away from us by additional time in the

11 court. Because those days after the 16th of April would have been spent

12 working on 65 ter and not in here cross-examining witnesses.

13 JUDGE BONOMY: Well, I wonder if -- I wonder if we maybe

14 misunderstand each other on that. There was a view which was not given

15 effect to in that decision that there's really no reason why a 65 ter list

16 shouldn't be available very shortly after the end of the Prosecution

17 case. And the real issue is when you demand the start of the Defence

18 case, because it's preparation that's involved, whereas the list should be

19 capable of production and the real work you should be doing would be on

20 preparing in light of that list, which can be cut down as you get to the

21 stage or expanded, for that matter, as you get closer to the trial. So we

22 eventually fixed a date that we were all comfortable with as giving --

23 having heard your submissions that you did want a later rather than an

24 earlier date.

25 MR. ACKERMAN: Mm-hmm.

Page 12120

1 JUDGE BONOMY: And that's why we're not so impressed by the idea

2 of altering that date but have yet to make a final decision on the date

3 when the Defence case will commence.

4 MR. ACKERMAN: Well, if there is -- if there is a great deal of

5 flexibility with regard to alteration of the 65 ter list after the 15th,

6 then I see no problem.

7 JUDGE BONOMY: Well -- but there is -- you've seen what we've done

8 with the Prosecution --


10 JUDGE BONOMY: -- we could hardly do less in relation to the

11 Defence, and I see Mr. Hannis nodding his head indicative of a reasonable

12 approach. So unless there's anything else, then I would propose to hear

13 what Mr. Lukic has to say because he looks somewhat more exercised on the

14 subject.

15 MR. LUKIC: Thank you, Your Honour, and basically you know that

16 even from the beginning we disagreed with my learned friend Ackerman on

17 the time-frame we need for our Defences. Obviously, it would be different

18 time we need for our Defence than Mr. Ackerman needs for his Defence.

19 JUDGE BONOMY: Was I wrong in thinking, though, that you were

20 getting rather concerned about the idea that the 15th of June would remain

21 the date for the 65 ter lists?

22 MR. LUKIC: Your Honour, the problem we have is the lawyers from

23 this team haven't spoken to our witnesses yet. We haven't -- we didn't

24 have time to speak to a single witness. The truth is that our

25 investigators did -- had contacts with our witnesses, but we haven't. So

Page 12121

1 we have to go through -- because your instruction is that this 65 ter

2 motion should be very precise, and we have to include the summaries of

3 their statements. We don't have a single one -- and documents that should

4 be introduced with those witnesses. So that's why I'm concerned. I can

5 give you a bunch of documents and a bunch of witnesses, but we have to

6 combine it and to give you the summaries of their statements, and we don't

7 have it.

8 JUDGE BONOMY: Well, I'm not going to qualify the demands we

9 made. We do expect that you'll do your best to achieve the results that

10 we've invited you to produce, but you are going to be the last, I

11 anticipate, to present a Defence case, albeit that also hasn't been

12 finally decided. But I suspect that's the way it will work, and therefore

13 you've got more time to give notice of changes that occur after the 15th

14 of June than anyone else has.

15 MR. LUKIC: Then -- thank you, Your Honour, then we are fine.


17 Anyone else wish to speak on this subject?

18 Mr. Visnjic.

19 MR. VISNJIC: [Interpretation] Your Honour, I assume that what I

20 will say now may be premature in relation to some dates Your Honours have

21 already set, but I wish to draw attention to the following: Should the

22 scenario occur where all three witnesses testify, not only would this

23 shorten our time, as Mr. Ackerman said, for preparing our Defence because

24 of the time spending in court, but also because of the time we have to

25 spend preparing for those witnesses. And disclosure, as I'm reminded by

Page 12122

1 Mr. Zecevic. Not only will we spend time in court but also we will spend

2 time preparing to cross-examine those witnesses.

3 What I wish to say now is that this will affect the time we have

4 planned to talk to our witnesses, and in the nature of things it should

5 lead not automatically but to a reasonable argument for our arguments to

6 extend the deadlines. So this is not now a motion; it is just a general

7 expression of concern. Thank you.

8 JUDGE BONOMY: Thank you.

9 Any other comment? Well, we'll just briefly confer.

10 [Trial Chamber confers]

11 JUDGE BONOMY: What we are prepared to do -- and there will be a

12 written order dealing with this aspect of the case. We've actively

13 considered this in light of what's been going on this morning, and we are

14 prepared to move the judicial recess so that it is included in the time

15 between now and the re-start of the trial -- or at least the start of the

16 Defence case. The effect of that would be to delay the start of the

17 Defence case until the 30th of July, but if we do that, then there will be

18 Judges missing during the month of June -- sorry -- the month of July,

19 which means that the date for the 65 ter lists really has to remain where

20 it is. And we would propose then having a pre-trial conference a week

21 after that, on the 22nd of June.

22 Pre-trial conference doesn't need to involve more than one counsel

23 from each accused, and it's a matter for counsel and their clients, but so

24 far as the pre-trial conference is concerned, if you decide to nominate

25 somebody to represent your interests, then we will have no real difficulty

Page 12123

1 with that, but it would have to be somebody fully instructed and you may

2 find that it is necessary for one from each party to attend.

3 Now, we hope that that is a sufficient period to enable the case

4 to get started, bearing in mind that, apart from Mr. O'Sullivan, you will

5 all have a bit longer than that. Of course, he might surprise us, and

6 more than he will need to be ready, but if he does present a Defence case

7 then that's going to give more time to everyone else to prepare theirs.

8 It will be soon enough at the pre-Defence conference to debate opening

9 statements and other issues of that nature and the order in which you will

10 present your cases, if there's any question of that being other than the

11 order of the indictment, and any other issues. Indeed, you'll be asked to

12 contribute to an agenda before we have that meeting.

13 Now, are there any matters arising from that that anyone wishes to

14 raise at this stage? Well, these details will be confirmed in a written

15 order, and that will be issued no later than tomorrow.

16 We shall now adjourn until the 16th - is that at 9.00 or is there

17 a court available?

18 [Trial Chamber and registrar confer]

19 JUDGE BONOMY: We shall need to notify the time to you, because

20 there is at the moment on the schedule another case at 9.00 that day, but

21 hopefully we will be here at 9.00 on the 16th; failing that, some other

22 time on the 16th either here or in another courtroom.

23 --- Whereupon the hearing adjourned at 1.31 p.m.,

24 to be reconvened on Monday, the 16th day of

25 April, 2007