Tribunal Criminal Tribunal for the Former Yugoslavia

Page 341

 1                           Thursday, 3 May 2012

 2                           [Pre-Trial Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.02 a.m.

 6             JUDGE ORIE:  Good morning to everyone in this courtroom and those

 7     assisting us outside for the continuation of the Pre-Trial Conference

 8     which is held today and in the case, Madam Registrar, you will now call.

 9             THE REGISTRAR:  Good morning, Your Honours.  This is case number

10     IT-09-92-PT.

11             JUDGE ORIE:  Yes, and that's the Prosecutor versus Ratko Mladic.

12             I would like to have the appearances.  Prosecution first.

13             MR. GROOME:  Good morning, Your Honours.  I am Dermot Groome, I

14     am here today with Peter McCloskey, Roeland Bos, and Ms. Janet Stewart.

15             JUDGE ORIE:  Thank you, Mr. Groome.

16             For the Defence.

17             MR. LUKIC:  Good morning, Your Honours.  Branko Lukic with

18     Radovan Djurdjevic today for Mr. Mladic.

19             JUDGE ORIE:  Yes, and I see that Mr. Mladic is present as well.

20             This is, as I just said, the continuation of the

21     Pre-Trial Conference which started on the 24th of April of this year,

22     during which the Chamber considered it advisable to continue the

23     conference to allow for additional time to resolve certain disclosure

24     issues before the start of the trial.  Over the past week, the parties

25     have provided both formal and informal updates to the Chamber on these

Page 342

 1     matters.  Yesterday, an additional Rule 65 ter meeting was held with the

 2     parties for the purpose of further discussion of these matters.  I'll

 3     therefore deal with disclosure and I'll start with disclosure under

 4     Rule 66(A)(ii).

 5             On the 25th of April, the Prosecution notified the Chamber and

 6     the Defence that it had discovered that due to an error in the upload on

 7     the 11th of November, the 11th of November major disclosure batch number

 8     5, that a large percentage of Rule 66(A)(ii) material had not been in

 9     fact disclosed either on EDS or on the hard disk provided to the Defence.

10             On the 27th of April, pursuant to the Chamber's instruction at

11     the Pre-Trial Conference, the Prosecution updated the Defence and the

12     Chamber with further information on the problem.  This update was

13     formalised in the Prosecution's eighth report on pre-trial preparations

14     which was filed on the 1st of May and was discussed with the parties at

15     yesterday's Rule 65 ter meeting.

16             Based on those discussions, the Chamber will briefly summarise

17     the current status of the Rule 66(A)(ii) disclosure.  On the

18     27th of April, the Prosecution disclosed all ICTY transcripts for the

19     23 witnesses it intends to call before the summer break, organised in

20     separate witness folders on a hard disk.  I add to that that much of this

21     material had already been disclosed, but we know now for sure that now

22     all ICTY transcripts have been disclosed, therefore major parts have been

23     redisclosed and organised in the way I described, that is, in separate

24     witness folders which may assist the Defence in further preparation.

25             Second, the Prosecution disclosed the B/C/S audio of the prior

Page 343

 1     testimony of these 23 witnesses also on hard disk, which would allow the

 2     accused to hear portions of it.

 3             Three, the Prosecution disclosed 33 B/C/S translations of the

 4     48 documents that had not yet been translated and will disclose the

 5     remaining translations as they are received from CLSS.

 6             And finally, number four, the Prosecution has undertaken to

 7     redisclose the ICTY transcript materials for the remainder of its

 8     witnesses by no later than the 29th of June, 2012.

 9             Mr. Lukic, in relation to that first item, that is, the

10     transcripts which were disclosed in the separate witness folders for the

11     first 23 witnesses, yesterday you told us that you had verified for

12     14 out of these 23, that they were all there apart from one, which we

13     then together were able to find although it was not disclosed apparently.

14     Can you now confirm that you received on the 27th of April in this

15     disclosure batch number 15(D) also the ICTY transcripts in relation to

16     those last nine witnesses you had not verified yet?

17             MR. LUKIC:  Your Honour, we can confirm that we received all the

18     transcripts in English for those 23 witnesses, and audios we haven't --

19     we didn't have time to check, but we can assume that everything is there.

20             JUDGE ORIE:  Yes.

21             MR. LUKIC:  But if you allow me, I will address it later on in

22     more detail.

23             JUDGE ORIE:  That's fine as far as I'm concerned.  If during

24     verification of the audio material which was disclosed, if you find that

25     anything is missing, don't hesitate to immediately communicate that, of

Page 344

 1     course first of all to the Prosecution but also to the Chamber.  Because

 2     you may have noticed that we are trying to follow the process of

 3     disclosure very closely.

 4             MR. LUKIC:  Thank you, Your Honour.

 5             JUDGE ORIE:  Then, Mr. Groome, as was discussed at the

 6     Rule 65 ter meeting, if the Prosecution and the Defence determine that

 7     the redisclosure of Rule 66(A)(ii) materials for the witnesses appearing

 8     after the summer break should occur in batches rather than all of them in

 9     one flow, the Chamber instructs the Prosecution to file a notification as

10     each batch is disclosed.  And of course the Chamber leaves it to the

11     Prosecution and the Defence to decide whether staggered disclosure of

12     these materials is, in fact, preferable and whether this is the manner in

13     which you wish to proceed.  Should you decide to proceed in this way, the

14     Chamber would like to be kept informed.  We want to know exactly what's

15     happening even without having access to the content of disclosed

16     material.

17             MR. GROOME:  Yes, Your Honour, we will do that.

18             JUDGE ORIE:  Thank you.

19             Then I have dealt with Rule 66(A)(ii) disclosure.  If there's any

20     matter you would like to raise in this context, Mr. Lukic, I think it

21     would be best to do it now because otherwise it would move to Rule 68

22     disclosure.

23             MR. LUKIC:  Yes, Your Honour, if you just give me a few minutes I

24     will express our position on this issue.

25             So now it's obvious that we received those materials only on the

Page 345

 1     27th of April, 2012, and it's also obvious that we didn't have those

 2     materials previously, although we were raising the issue as of November

 3     last year that something is missing.  It is only natural that we can

 4     start working as of 27th of April, 2012, on those missing documents and

 5     our position is that it infringes the right of the Defence if the trial

 6     would start in May 2012.  The Prosecution confirmed that due to unknown

 7     problem those documents were not disclosed to us in November 2011.  We

 8     accept that.  We know that they are under huge pressure and that they

 9     have a lot of work to do and they were understaffed at that time.  After

10     having them employed much more staff, they were able to finalise the

11     disclosure, but the lack of disclosed documents is not fault of

12     Mr. Mladic, is not fault of his Defence.  So we -- our position is that

13     we shouldn't suffer because of this fault disclosure.  And we think that

14     it would be prejudice to the Defence to start trial in May, since it's

15     not only to have documents disclosed, but we have to study them, read

16     everything, and prepare for cross-examination of every single witness,

17     which we are not able to do in such a short period of time.

18             The purpose of Rule 66(A)(ii) is to enable the Defence to

19     confront witness with all their prior statements and transcripts.  The

20     provision is of fundamental importance to the accused's right to a fair

21     trial.  It is an essential element of Rule 66(A)(ii) that disclosures

22     occur within a specific time-limit, so as to provide adequate time and

23     resources for the accused to examine the material and prepare its case.

24     We know that in Karadzic case, Chamber ordered that the Prosecution not

25     to be allowed to call any witness affected by late disclosure for a

Page 346

 1     period of approximately 90 days to give the Defence time to prepare.

 2     That is actually the continuance we asked for all the time, to have at

 3     least 90 days from the disclosure until the beginning of the testimony of

 4     any witness the Prosecution intends to call.

 5             Your Honours know that we have been complaining about the lack of

 6     these materials some times now and we only received them last Friday.

 7     The Defence has lost five months of effective preparation as a result.

 8     So we reiterate our request to have the start of the witness testimonies

 9     for 90 days.  That's all I have on this issue for now.  Thank you.

10             JUDGE ORIE:  Thank you, Mr. Lukic.

11                           [Pre-Trial Chamber and Legal Officer confer]

12             JUDGE ORIE:  Mr. Lukic, I do understand that you thus repeated

13     and further underlined and perhaps gave additional reasons for what you

14     requested already in your filing of the 10th of April.  That's how the

15     Chamber will consider it.  Thank you for this oral submission.

16             Mr. Groome, would you like to respond?

17             MR. GROOME:  Just briefly, Your Honour.  The Prosecution accepts

18     that there was a serious flaw in the disclosure of some of these

19     transcripts, and I apologise to the Chamber for the issue that it's

20     presented and for the hardship that it has caused Mr. Mladic.  We offer

21     no excuse.  We gave a full explanation yesterday of the origin of that

22     error.  I would, however, point out that the majority of the material

23     that has been the subject of this consists of public transcripts that

24     were readily available on the ICTY web site.  In effect, the amount of

25     material that has been inaccessible to the Mladic Defence has been the

Page 347

 1     private session portions of that testimony.  With respect to the request

 2     for a delay of the proceedings, the Prosecution is ready to open its case

 3     on the 16th and to call its first witness on the 29th.  It does defer to

 4     the Chamber on matters with respect to scheduling and whether those dates

 5     are still consistent with the fair trial rights of Mr. Mladic.  Thank

 6     you, Your Honour.

 7             JUDGE ORIE:  Thank you, Mr. Groome.

 8             Mr. Lukic, this matter always had our full attention.  We'll

 9     continue to consider it, and whether or not this will result in any

10     change in the start of the trial is again discussed, again reviewed on

11     the basis of your submissions today, and you'll hear the outcome of those

12     discussions.  And of course we try to resolve matters as quickly as

13     possible so that the parties know well in advance how we are proceeding.

14             MR. LUKIC:  Thank you, Your Honour.  Only, if I may, it's not

15     only transcripts at issue, also other documents, not only transcripts.

16     All documents were included in this --

17             JUDGE ORIE:  Yes, perhaps Mr. Groome was not in every respect

18     correct when he said it was only transcripts, and I think you may not

19     have been in every respect correct when you said all this material was

20     missing.  It's not all --

21             MR. LUKIC:  Not all, but at least half.

22             JUDGE ORIE:  Yes, at least -- of course, the Chamber is fully

23     aware of the details of what was not disclosed and what portion that is

24     of the totality of the disclosed material.  We consider all those details

25     when deciding on the matter.

Page 348

 1             MR. LUKIC:  Thank you, Your Honour.

 2             JUDGE ORIE:  Then I move now on to Rule 68(i) disclosure about

 3     exculpatory material.

 4             On the 13th of April, the Prosecution filed a motion seeking an

 5     extension of the general Rule 68(i) disclosure dead-line which was then

 6     set for the 30th of April, 2012.  The Defence objected and irrespective

 7     of the Chamber's decision on the motion requested a 30-day adjournment of

 8     the start of the -- 90-day, yes, I misspoke, it is 90-day adjournment of

 9     the start of the trial.

10             On the 26th of April, through an informal communication, the

11     Chamber granted the Prosecution's motion for an extension for disclosure

12     of Rule 68(i) materials in relation to the evidence it intends to lead

13     after the summer recess.  The dead-line of 30 April remained intact for

14     the disclosure of Rule 68(i) materials which relate to evidence the

15     Prosecution intends to lead before the summer recess.  The Chamber

16     denied, without prejudice, the Defence's request for an adjournment.

17     Further, the Chamber instructed the Prosecution to file a notification in

18     relation to Rule 68(i) materials related to evidence it intends to lead

19     after the summer recess.  And this decision is hereby put on the record.

20             The Chamber would like to say a few words on disclosure

21     generally.

22             And, Mr. Lukic, this will perhaps clarify also the Chamber's

23     denial, without prejudice, of your requests for adjournment of trial.

24     And of course I'm talking about decisions we have given until now.  We'll

25     further consider the situation on the basis of the submissions you made

Page 349

 1     five minutes ago.

 2             The Chamber's approach has been to set firm dead-lines for the

 3     completion of disclosure, rather than adopting an approach of rolling

 4     dead-lines throughout the trial.  This approach has led the Chamber

 5     taking a more active and a more attentive role in pre-trial disclosure

 6     matters than has necessarily been the case in other trials in this

 7     Tribunal.  It has also resulted in the vast majority of disclosure being

 8     completed during the pre-trial stage of the case.

 9             Notwithstanding this, the Chamber is aware that there may be

10     disclosure of materials after the final deadlines have passed.  This

11     could include, for example, material that was not in the Prosecution's

12     possession or did not even exist at the time of the dead-line.  The

13     Chamber considers that the consequences of any late disclosure should be

14     determined by taking into account the scope of the problems, concrete

15     problems, resulting from it.  This means that the relevant factors are

16     not only the amount of time between the dead-line for disclosure and the

17     date when the material was actually disclosed.  Additional factors

18     include the reasons why the material was not disclosed earlier as well as

19     the length, complexity, and importance of any non-disclosed documents.

20     And further, what the appropriate remedy should be, if any remedy is

21     necessary, that such remedy would depend on the specifics of the

22     situation.  For example, granting a temporary adjournment, postponing a

23     specific witness's testimony, or ordering the re-call of a witness are

24     all possible remedies for late disclosure depending on the circumstances.

25             And I would want to leave it to that as a general observation by

Page 350

 1     the Chamber on this matter.

 2             We, however, are still on the topic of Rule 68(i) disclosure.  On

 3     the 1st of May, the Prosecution filed a notification on the status of the

 4     Rule 68(i) disclosure in relation to the evidence it intended to lead

 5     before the summer break.  This report was also discussed at yesterday's

 6     65 ter meeting.

 7             Mr. Groome, at the Rule 65 ter meeting you offered to provide an

 8     additional update on the status of Rule 68(i) disclosure.  Are you in a

 9     position to do that now?

10             MR. GROOME:  Yes, Your Honour.  I'm going to defer to my

11     colleague, Mr. Bos, with respect to the latest information in this

12     regard.

13             JUDGE ORIE:  Mr. Bos, may I invite you to update the Chamber --

14             MR. BOS:  Yes, Your Honours.  We spoke yesterday with the persons

15     responsible for the review, and there are still two additional sheets

16     that need to be reviewed.  And at this stage it's not possible for us to

17     give an exact number of the documents that still need to be reviewed, but

18     it appears that we think that the review will be, at the latest,

19     completed by the end of next week, so not at the end of this week but by

20     the end of next week.  But that's just for the review of the documents.

21     And we still think that as far as finally disclosing all Rule 68

22     evidence, that we can still disclose all this material by the

23     8th of June.  That dead-line would certainly not change.

24             JUDGE ORIE:  Mr. Bos, could I ask you one thing.  You are now

25     using the term "sheet."  When talking about the review yesterday we were

Page 351

 1     talking about searches.  I'm trying to understand where you said

 2     yesterday that 104 out of the 108 searches have been done, what exactly

 3     it means in terms of sheets or to what extent sheets are related to those

 4     searches?

 5             MR. BOS:  Well, when I refer to a sheet, I refer to a search

 6     term, so it's -- it means two additional search terms.

 7             JUDGE ORIE:  Yes.  So when you said 104 out of 108, we are now at

 8     106 out of 108?

 9             MR. BOS:  Yes, Your Honour.  Yes.

10             JUDGE ORIE:  It sounds hesitant, Mr. Bos.  Is there anything in

11     your mind which makes you hesitate?

12             MR. BOS:  Well, the reason the two remaining ones are still to be

13     processed, so it's -- at this stage it's unclear how many documents, in

14     fact, need to be reviewed.  The search results are coming from ISU and

15     are then being looked at and reviewed by the reviewers to see how much of

16     that material needs to be, in fact, reviewed.  And that still needs to be

17     done.  So I can't give an exact figures on the numbers of documents to be

18     reviewed, but we expect that the number will be such that we can finalise

19     the complete review by the end of next week.

20             JUDGE ORIE:  Yes.  And then it will be further processed in order

21     to make it ready for disclosure?

22             MR. BOS:  Correct, Your Honours.

23             JUDGE ORIE:  And you say that will be complete by the

24     8th of June, but the review, so before the processing, will be complete

25     by the end of next week?

Page 352

 1             MR. BOS:  Yes, Your Honours.

 2             JUDGE ORIE:  Thank you for this update.

 3             Mr. Lukic, any further questions in relation to this?

 4             MR. LUKIC:  No, Your Honour.  Since this dead-line is

 5     self-imposed by the Prosecution, we have nothing to add on this issue.

 6             JUDGE ORIE:  Yes.

 7             Then, Mr. Groome, the Chamber has already explained that it will

 8     determine the consequences of any late disclosure of materials by taking

 9     into consideration the scope of the problems resulting from this late

10     disclosure.  However, the Chamber also wishes to clarify that it did not

11     grant a dead-line extension for Rule 68(i) materials in relation to

12     evidence that the Prosecution intends to lead before the summer recess.

13     The Chamber would, as a practical matter, strongly encourage the

14     Prosecution to prioritise the review, processing and disclosure, so I'm

15     talking about the whole of the process, of any residual material in

16     relation to evidence potentially relevant to the first stage of the

17     trial.

18             Further, the Prosecution should look for ways, if possible, to

19     disclose these materials on hard disk to the Defence at the earliest

20     possible moment, perhaps by reconsidering some of the pre-disclosure

21     steps which are relevant to EDS organising, but not the disclosure on

22     hard disk -- not relevant for the disclosure on hard disks.  These are

23     not instructions from the Chamber, Mr. Groome.  They are merely practical

24     considerations that we encourage you to keep in mind.  And this will be

25     further addressed later today in relation to the Prosecution's witness

Page 353

 1     order list for its first 23 witnesses.

 2             MR. GROOME:  Your Honour, we will certainly give that

 3     consideration, but I do want to assure the Chamber that from January of

 4     2012, Mr. Brammertz has made the disclosure in this case the absolute top

 5     priority and that all available resources have been devoted to it and

 6     many steps have been taken to try to do it in the most efficient and

 7     quickest way possible.  So it has had the top priority now for the past

 8     four months, but of course we will endeavour to - as we always

 9     do - re-examine our work to see are we doing it as quickly and

10     efficiently as possible.

11             As I pointed out to the Chamber yesterday, that it may be

12     possible to simply take all of this material and put it in image files,

13     just picture files, onto a hard drive, but I think that's of limited

14     utility to the Defence.  But if the Chamber instructs or if Mr. Lukic

15     requests, we can simply take all of that material and put it in its

16     current state which is picture files, unsearchable, and provide that, I

17     would think, more quickly.  Although as I said yesterday, that process

18     itself would require staff which would then be taken from the process of

19     making it searchable and making it in a way that is usable by the

20     Defence.  But we will certainly take the Chamber's comments just now

21     under serious consideration, and if there are ways that we can improve or

22     further prioritise, we will certainly do that.

23             JUDGE ORIE:  Yes.  Of course the Chamber - also I think I said

24     that yesterday as well - the Chamber encourages the parties to see what

25     is possible but also what is needed by the Defence.  And to the extent

Page 354

 1     that Mr. Lukic would be more happy to already receive some material or if

 2     only the description of the materials that are further processed, one

 3     line, order, date this and this, issued by that and that and that, even

 4     before it is further processed and even before -- and not perhaps even

 5     having received the not-searchable document, that at least he knows what

 6     documents are at that moment processed.  If he would wish to receive that

 7     information, I think you should seriously consider that.  If he, however,

 8     says no, let's wait until we have received the fully processed material,

 9     I'll not look at it on the basis of just description of the document,

10     then of course I can imagine that you would not spend more resources on

11     doing this intermediate step.  Again, I clearly said that the Chamber is

12     not giving instructions but is urging the parties to seek to proceed in

13     such a way that Mr. Lukic receives materials as soon as possible even if

14     it's not yet in the perfect stage if he considers it's important to have

15     that available.

16             Yes, Mr. Lukic.

17             MR. LUKIC:  Thank you, Your Honour.  Thank you for assisting us

18     on this issue.  I said we have no problem with 8th of June for this

19     disclosure.  When I said that I was having in mind that the trial will

20     not start in May, because of course we cannot cross-examine any witness

21     without having materials that can go against the witness who is

22     testifying against Mr. Mladic.  So if we want to be prepared, of course

23     we have to have 68 -- Rule 68(i) materials before any witness appears

24     here for testifying.

25             JUDGE ORIE:  Mr. Lukic, as you may be well aware, we do not know

Page 355

 1     what the result of these searches and reviews will be, so therefore it

 2     may well be that it doesn't affect in any way, well, let's say, witness

 3     number 2 or witness number 5, or 1 to 5.  We do not know yet.  And as I

 4     explained earlier, the Chamber is considering the problems resulting from

 5     late disclosure which could be, as I said before, re-calling a witness in

 6     order to fully exercise the right to confront the witness also with the

 7     material which you had not received then.  And of course, neither the

 8     Chamber nor the Prosecution nor the Defence is seeking such a situation

 9     to arise.  But as I said before, we'll consider it in the way I set out

10     15 or 20 minutes ago.

11             MR. LUKIC:  Thank you, Your Honour.

12             JUDGE ORIE:  Mr. Groome.

13             MR. GROOME:  Your Honour, just simply to say that after speaking

14     with Ms. Stewart, it would be possible for the Prosecution to provide the

15     disclosure sheets of the raw data that -- pre-reviewed.  This would have

16     the ERN numbers of the documents that were identified by the search terms

17     alone before any review was done.  Many of the documents identified may

18     already be on the general collection of the EDS.  The descriptions,

19     however, are flawed.  One of the things that we do is to improve those

20     descriptions in those sheets as part of the processing process.  But we

21     would be willing to provide that to Mr. Lukic as soon as possible if he

22     thought that would assist his work.

23             JUDGE ORIE:  And that would not take great efforts to produce

24     that?  That's relatively easily done?

25                           [Prosecution counsel confer]

Page 356

 1             MR. GROOME:  Ms. Stewart advised me that that particular

 2     assistance would be fairly easy to do and would not set back the overall

 3     project.

 4             JUDGE ORIE:  And at the same time would at least give Mr. Lukic a

 5     first impression in what he could expect as a result of --

 6             MR. GROOME:  Not exactly, Your Honour, because in the review

 7     process it would be a much smaller list.  Many of those documents would

 8     not be potentially exculpatory.  They would simply be documents that had

 9     the particular search term that was run across our collection of

10     9 million documents.

11             JUDGE ORIE:  Mr. Lukic, it may assist you, it may not assist you.

12     It's relatively easily produced.  I take it that you will then receive

13     that soon, which allows you perhaps not exactly what you wanted to do,

14     but at least gives some possibilities of looking at the material which

15     may finally result from the Rule 68 review of the large number of

16     documents.

17             MR. LUKIC:  Thank you, Your Honour.

18             JUDGE ORIE:  Then I move on.

19             Mr. Lukic, in the Prosecution's notification, the Prosecution

20     states that an additional disclosure was made to the Defence on the

21     1st of May.  And at the Rule 65 ter meeting you confirmed the receipt of

22     the hard disk but you also stated that you have not yet gone through

23     them.  Are you in a position to confirm that the correct materials were

24     disclosed to you yesterday or are you not yet?

25             MR. LUKIC:  I did have time to see in general what's disclosed on

Page 357

 1     these three -- actually two DVDs and one CD.  On the CD we had only

 2     spreadsheet.  It is, if I'm not wrong, only 68(i) material, so it has

 3     nothing to do with 66 and 65 materials.

 4             JUDGE ORIE:  No, I think we are at this moment talking about 68.

 5             MR. LUKIC:  68, yes, yes.

 6             JUDGE ORIE:  And that material was in relation to Kljuc and --

 7             MR. LUKIC:  That's how I understood it.

 8             JUDGE ORIE:  -- Prijedor, yes.  So at least for those

 9     municipalities then you have -- you have received that Rule 68(i)

10     material.

11             MR. LUKIC:  Yes, Your Honour.  But I have -- I just want to point

12     out that the first witness is in connection with Kotor Varos.

13             JUDGE ORIE:  Yes.

14             MR. LUKIC:  So, for example, we don't have anything for the first

15     municipality that would appear here in front of Your Honours.

16             JUDGE ORIE:  Yes.

17             And any Prosecution response to that or any other matter to be

18     raised in this context?

19             MR. GROOME:  Your Honour, just to be more precise.  With respect

20     to the first witness, the Prosecution has fully disclosed the results of

21     its searches with respect to any information in our system that could

22     affect the credibility of that witness.  What has not been processed is

23     general substantive material related to Kotor Varos in general, not even

24     necessarily related to the specific crime which this witness -- this

25     witness gives rather limited evidence about a very particular crime.  So

Page 358

 1     it's not even that.  It's just general potentially exculpatory material

 2     about events generally in Kotor Varos.

 3             JUDGE ORIE:  Yes, you would say if the scope of the testimony of

 4     the witness is very limited, that whatever would touch upon that

 5     testimony, any exculpatory material is disclosed, but that might not be

 6     true for the whole of the Kotor Varos environment, to say so.  That's

 7     other things not directly related to the testimony of the witness which

 8     may have happened in Kotor Varos?

 9             MR. GROOME:  That's correct, Your Honour.  And it's the

10     Prosecution's firm belief that it is an extremely low probability that

11     the searches that still remain to be done, to be completed, would

12     generate any material that was potentially exculpatory to the -- either

13     the witness himself or to the substance of his testimony.  The

14     Prosecution's position would be that the more appropriate course of

15     action, since we've already made travel plans for this witness and he

16     comes from a country quite far away, that if the Chamber or Mr. Lukic

17     should believe that some material disclosed late would have been useful

18     during the cross-examination, that the more prudent course would be to

19     simply re-call the witness at a later time.  That would be our

20     submission.

21             JUDGE ORIE:  Thank you, Mr. Groome.  We discussed it to some

22     extent, although not the last portion, during yesterday's 65 ter meeting.

23             Anything you would like to add, Mr. Lukic?

24             MR. LUKIC:  No, Your Honour, not on this point.

25             JUDGE ORIE:  Thank you.

Page 359

 1             Then I would like to move on to the 65 ter exhibit list upload in

 2     e-court.  On the 26th of April, the Prosecution informed the Chamber that

 3     all Rule 65 ter exhibits had been successfully uploaded into e-court,

 4     with the exception of some residual errors which meant that it had failed

 5     to upload certain exhibits.  In a filing of the 1st of May, the Defence

 6     confirmed that the Rule 65 ter exhibits were available to it as of the

 7     evening of the 26th of April.  At yesterday's Rule 65 ter meeting,

 8     Mr. Groome, you clarified that a sizeable error list remains and offered

 9     to provide a further update today.  And I'd like to invite you to do so.

10                           [Prosecution counsel confer]

11             MR. GROOME:  Your Honour, the only additional information that I

12     have that's different from yesterday, yesterday I informed the Chamber

13     that we had devoted staff to make a special effort to upload all of the

14     exhibits that were likely to be used with the first 23 witnesses, and

15     that as of yesterday we had accomplished that with 13.  We will now have

16     completed all of the witnesses by -- just one second, Your Honour.  We

17     will have completed that with respect to all of the 23 witnesses by the

18     end of tomorrow.  So by the end of tomorrow, all of the exhibits that

19     will be used prior to the summer break will be uploaded, the problem

20     sorted out, and available on e-court.

21             JUDGE ORIE:  Yes.  Since the upload is not fully complete,

22     although complete for the first 23 witnesses, the Chamber would instruct

23     the Prosecution to continue to update the Chamber on a weekly basis by --

24     through an informal communication by e-mail until the upload is complete

25     and the updates should include the resolution of all the residual errors.


Page 360

 1             MR. GROOME:  Yes, Your Honour.

 2             JUDGE ORIE:  Then finally, at the 65 ter meeting, the Prosecution

 3     was instructed to file a response to the Defence's 1st of May filing,

 4     particularly in relation to the timing and the status of disclosure to

 5     the Defence in relation to the Prosecution's Rule 65 ter documents.  And

 6     that instruction already given is hereby put on the record.

 7             I now move to Rule 70 providers.

 8             Mr. Groome, do you have an update in relation to disclosure of

 9     the diary which we discussed yesterday at the Rule 65 ter meeting or an

10     update on any other Rule 70 matter?

11             MR. GROOME:  With respect to the diary, Mr. McCloskey will

12     address the Chamber on that.  And I think it's probably perhaps more

13     appropriate that we go into private session for the discussion of that

14     matter.

15             JUDGE ORIE:  Then we move into private session.

16                           [Private session]

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 361

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 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22                           [Open session]

23             THE REGISTRAR:  We're in open session, Your Honours.

24             JUDGE ORIE:  Thank you, Madam Registrar.

25             And I'll move to the next item on my agenda, which deals with the


Page 362

 1     witness order list.  At last week's Pre-Trial Conference, the Chamber

 2     instructed the Prosecution to file by the 2nd of May an amended list

 3     setting out the witness order for the witnesses to be called to testify

 4     until the summer recess.  At yesterday's Rule 65 ter meeting, the Chamber

 5     instructed the Prosecution not to file this list until receiving further

 6     instructions from the Chamber.

 7             In addition to the Chamber's Rule 73 bis (C) decision and other

 8     decisions announced last week -- at last week's Pre-Trial Conference,

 9     Mr. Groome, the Chamber expects the Prosecution to take into account the

10     relevant disclosure developments since last week.  For example, the

11     Prosecution could consider calling first those witnesses unaffected by

12     the Rule 66(A)(ii) batch 5 errors.  The Prosecution could also consider

13     whether it is feasible to schedule for a later time in the first stage of

14     the trial those witnesses for whom there might be residual Rule 68(i)

15     materials not yet disclosed.  In this respect I refer you to your

16     1st of May filing, paragraphs 7 and 8 specifically.  Therefore, with

17     those additional comments, would you please file an amended witness order

18     list by tomorrow, the 4th of May, 2012.

19             MR. GROOME:  Yes, Your Honour.

20             JUDGE ORIE:  I -- yes, Mr. Lukic.

21             MR. LUKIC:  Your Honour, thank you.  I have to give one

22     observation regarding the schedule of witnesses, because I think that we

23     are missing something here.  You instructed the Prosecution to organise

24     its witness list according to mishaps in disclosing of 66(A)(ii)

25     materials, but at the same time we had non-disclosed materials based on

Page 363

 1     Rule 65 ter.  So this issue is not moot since we got these materials only

 2     on the 26th of April, 2012, and approximately one-half of these

 3     documents, around 14.000, the Defence saw for the first time on the

 4     26th of April, 2012.  So it's a bit more than two weeks before the start

 5     of the trial, and it's failure in disclosure on a massive scale and it

 6     directly infringes the right of the accused if the trial is to start in

 7     May 2012.

 8             We just want to draw your attention, Your Honours, that there is

 9     a problem with the 65 ter disclosures as well, so if we are going to

10     start, then the same rules have to be applied to 65 ter disclosures as on

11     66(A)(ii) disclosures.

12             JUDGE ORIE:  When you are talking about 65 ter disclosure, you're

13     talking about documents which appear on the exhibit list?

14             MR. LUKIC:  Yes, 28.000 approximately.

15             JUDGE ORIE:  Yes.

16             I think that --

17             MR. LUKIC:  To --

18             JUDGE ORIE:  -- Mr. Groome already said something about it, but

19     you are emphasizing that it's only there since the 26th of April.

20             One second, please.

21                           [Pre-Trial Chamber and Legal Officer confer]

22             JUDGE ORIE:  I was struggling for a second with my computer, but

23     fortunately my colleagues could help me out.

24             Mr. Lukic, I think we also discussed yesterday that a response

25     was to be filed and it was filed yesterday, although I've not looked at

Page 364

 1     it yet --

 2             MR. LUKIC:  We --

 3             JUDGE ORIE:  -- so therefore --

 4             MR. GROOME:  Your Honour --

 5             JUDGE ORIE:  Mr. Groome.

 6             MR. GROOME:  -- I can give in summary what's in the filing.  I

 7     think what Mr. Lukic's failing to appreciate or bring to the Chamber's

 8     attention is that these documents were all previously disclosed.  There's

 9     no issue that they were not disclosed.  They were disclosed in the

10     different batches.  Once the Prosecution provided its exhibit list, which

11     it did, I believe, on the 10th of February, that exhibit list is --

12     simply taking the ERN number from the exhibit list and searching in the

13     batches would have resealed the documents that are on the exhibit list.

14     The problems uploading them into e-court really only have direct

15     consequence for our ability to use them in the courtroom here, not in the

16     ability of the Defence to view them and study them.

17             JUDGE ORIE:  But do I understand Mr. Lukic well that he says that

18     the flaws in the batch 5 disclosure affected the access to materials on

19     the Rule 65 ter exhibit list?

20             MR. GROOME:  We can test that, Your Honour.  We don't believe

21     they have.  In fact, we believe that all of the documents on the exhibit

22     list have been previously disclosed and disclosed prior to the

23     announcement of the exhibit list.

24             JUDGE ORIE:  Yes.  And were not affected by the errors made in

25     relation to batch number 5?

Page 365

 1             MR. GROOME:  No, Your Honour.

 2             Your Honour, can I make one other observation about the Chamber's

 3     direction for us to file a witness list tomorrow.  The Chamber is

 4     currently entertaining an application to postpone at least the -- the

 5     calling of the first witness.  That would obviously have very significant

 6     implications on how we schedule the witnesses, taking into consideration

 7     the Chamber's request of the factors that we do consider.  If the Chamber

 8     were to grant some continuance of the first witness, it may no longer be

 9     necessary to reschedule the entire witness order.  We have tried to

10     develop a witness order that will present the evidence in a very coherent

11     way for the Judges.  If there is going to be a grant of an adjournment,

12     it would be very helpful to know that before we actually present a new

13     order and reschedule all the witnesses.  Thank you.

14             JUDGE ORIE:  We will consider whether we are able to give you

15     this information.  If not, then of course you are expected to present a

16     witness list as you had them on your mind.  Whether it finally will work

17     out that way is then -- but we will try to avoid that you are more or

18     less hanging in the air somewhere not knowing where we go.  And I think

19     that's important, not only for you, Mr. Groome, but also for the Defence.

20             MR. GROOME:  Thank you.

21             JUDGE ORIE:  Mr. Lukic, you would like to add something?

22             MR. LUKIC:  Yes, Your Honour.  I'm sorry for interrupting, but I

23     would like to give you an example based on the pre-trial brief of the

24     Prosecution.  At that time we were not able at all to check which

25     documents they were referring in this pre-trial brief because we could

Page 366

 1     not locate the documents since one-half was missing, and our response was

 2     based on that flaw.  We had one number, 65 ter number.  In the system was

 3     ERN number or vice versa.  So we were not able to track those documents

 4     at all.  So half of the documents were missing and only since recently we

 5     were able to locate and read.  And now what we are doing, we are going

 6     again through their pre-trial brief and actually see what they were --

 7     what's written in there.  So it's not moot as the Prosecution presented

 8     it yesterday.  It's very alive issue at this moment.  Thank you,

 9     Your Honour.

10             JUDGE ORIE:  Mr. Groome.

11             MR. GROOME:  Your Honour, simply to say that the exhibit list was

12     filed, I believe - and this is from my memory - on the 10th of February

13     and the pre-trial brief was filed on the 24th of February.  So from the

14     10th of February, the Lukic -- the Mladic Defence had in its possession

15     the ERN number plus the 65 ter number which we had assigned to it.  If

16     I'm wrong with that, I'll speak with Mr. Lukic after today's hearing, but

17     there seems to be some serious misunderstanding about what was available

18     to Defence and when it was.  But it's our position that the Defence was

19     in a position once it had the exhibit list on the 10th of February to be

20     able to look at the exhibits that had already been disclosed up to that

21     date.

22             JUDGE ORIE:  Mr. Lukic, I leave it to you whether you find it

23     wise to immediately respond or first discuss the matter with Mr. Groome

24     after this hearing.

25             MR. LUKIC:  I will definitely do that, Your Honour.  Thank you.

Page 367

 1     But I want to be very specific on this issue.  The documents could not be

 2     searched by 65 ter number, only by ERN number, and by ERN number they

 3     could not be found because we couldn't find half of the documents by ERN

 4     number.  They were not disclosed to us or we didn't have the number, but

 5     we were not able to find at least half of the documents from 65 ter list.

 6             JUDGE ORIE:  Okay.  Now, do I understand that where earlier it

 7     was discussed whether the exhibits to be used with the first witnesses

 8     were affected by the error in batch 5 and that what you're raising at

 9     this moment is that your review of the pre-trial brief was, at least to

10     some extent, obstructed by the errors in batch 5.

11             Mr. Mladic, Mr. Mladic, Mr. Mladic, if there's anything you would

12     like to discuss with counsel, please ask for an opportunity to do so.

13     But if you are speaking as loud as you did a minute ago, then it disturbs

14     the -- this hearing.  So therefore, I'd like -- if it's a small practical

15     matter, please, if you take off your earphones for a second, then you'll

16     be better able to control the volume of your speech, if it's just purely

17     for a practical matter.  If you want to discuss something with counsel,

18     we'll just briefly pause for such purposes.

19             Mr. Lukic.

20             MR. LUKIC:  I will try to understand -- answer your question.

21             Both, Your Honour.  We were obstructed by this lack of documents

22     when responding to pre-trial brief and we were obstructed by trying to

23     find and examine the documents preparing for the cross-examination of the

24     witnesses.

25             JUDGE ORIE:  Yes, I do understand that that's in general the

Page 368

 1     case.  I also do understand that -- that's at least what Mr. Groome just

 2     said, is that the materials to be used with the first witnesses were not

 3     affected by the batch 5 error.

 4             Mr. Groome.

 5             MR. GROOME:  That's correct, Your Honour.  And if Mr. Lukic is

 6     able to provide some of the specific examples, I will investigate them;

 7     and if we are in error, I will acknowledge that before the Court.

 8             JUDGE ORIE:  Then the Chamber would like to be informed about

 9     that if you would further discuss the matter among yourselves.

10             Then I'd like to move on to my next item, that is the access

11     motion.  On the 27th of April, the Prosecution filed a notice of those

12     materials from the Krstic case to which the accused cannot have access,

13     in accordance with the Chambers instructions contained in its

14     21st of March, 2012, decision.

15             Mr. Groome, the Chamber notes that the notice lists five

16     categories which were not listed in the decision, the five being:

17     Witness scheduling, witness appearance, witness attendance, execution of

18     arrest warrant, and non-accessible Registry documents.  Further, the

19     interpretation -- the Prosecution's interpretation of the health-related

20     categories in the decision appears to be somewhat broader than was

21     envisaged in the decision itself.

22             Now, the Chamber is inclined to consider that materials in these

23     five categories have no forensic purpose and that therefore they should

24     be excluded from the access granted in the Chamber's 21st of March

25     decision.  But it's not fully in line with the decision.

Page 369

 1             So therefore, before the Chamber decides on the matter, we'd like

 2     to hear from you, Mr. Lukic, whether this -- whether there's any

 3     objection against not giving access to these five categories, that is,

 4     witness scheduling, witness appearance -- well, the ones I mentioned and

 5     for which apparently also the Prosecution took the position that they

 6     have no forensic purpose.  What is your position on this matter?  Because

 7     it's not for the Prosecution to expound the categories without having

 8     formalised that matter.  Would you like me to read the five categories

 9     again?

10             MR. LUKIC:  I'm reading myself --

11             JUDGE ORIE:  Yes.

12             MR. LUKIC:  -- but I don't know, actually, really now because I

13     was, again, in communication with the office, what we have to respond

14     here.

15             JUDGE ORIE:  Well, what you have to respond is, there is a

16     decision which defines categories to which you will have no access.  Now,

17     in fulfilling its obligations under this decision, the Prosecution has

18     slightly changed the categories, have added a few and has interpreted

19     health issues a bit broader, which means that you will not have access to

20     those materials either.  Now, if you say, well, in view of these

21     categories that's reasonable, that's fine, then we will not -- then we

22     will just establish that it is with the consent of the Chamber that this

23     addition has been made.  But if you say, no, this is not what was in the

24     decision and I have good reasons to challenge that we should not have

25     access to these categories, then we would like to know.

Page 370

 1             MR. LUKIC:  I'm not sure that I can respond to this question

 2     right now because probably we have to investigate it further and see

 3     what -- if we need anything from these categories.  It's the easiest way

 4     for me just now to say, well, I object to everything.

 5             JUDGE ORIE:  Yes.  As I said before that the Chamber is inclined,

 6     but just as a guidance -- I think Mr. Mladic would like to consult with

 7     you in a second.  The Chamber is inclined to accept that where it had not

 8     mentioned these categories, such as execution of arrest warrants in that

 9     case -- but I leave it to you.  If you want to further consider it, we'd

10     like to hear from you as soon as possible --

11             MR. LUKIC:  Thank you.

12             JUDGE ORIE:  -- so that we know how to proceed in this matter

13     where the Prosecution has not followed strictly what was in the decision.

14             Mr. Mladic sought your attention a second ago.

15                           [Defence counsel and accused confer]

16             MR. LUKIC:  Your Honour.

17             JUDGE ORIE:  Mr. Lukic.

18             MR. LUKIC:  Yes, thank you.

19             Your Honour, I think that it would be wise to make a break, short

20     break, so I -- this could be longer consultation.  So if it's possible --

21             JUDGE ORIE:  Yes.

22             MR. LUKIC:  -- to make a short break now.

23             JUDGE ORIE:  We might have difficulties anyhow because,

24     Mr. Groome, you would like to make a submission which will take some

25     20 minutes and we might not finish within the usual time of one hour and

Page 371

 1     a half.  But I'll first consult with my colleagues because there's not

 2     much left on my agenda.  But ...

 3                           [Pre-Trial Chamber confers]

 4             JUDGE ORIE:  We'll take a break and we'll resume at 20 minutes to

 5     11.00.

 6                           --- Recess taken at 10.10 a.m.

 7                           --- On resuming at 10.44 a.m.

 8             JUDGE ORIE:  Mr. Lukic, is there anything you'd like to raise as

 9     a result of your consultation with your client?

10             MR. LUKIC:  Your Honour, I discussed the issues with Mr. Mladic,

11     and he agreed to leave till the end of this conference to address a few

12     questions regarding his access to e-court or EDS system from cell

13     number 7 in the UNDU and some other issues of a technical nature as we

14     agreed.

15             JUDGE ORIE:  And you will raise them --

16             MR. LUKIC:  No, he will.  Or if you want me I can raise them

17     shortly.

18             JUDGE ORIE:  Yes, I would prefer that the usual way of proceeding

19     is that upon instructions of the accused, that counsel raises any

20     matters.  Now would you mind if we first continue -- because what we have

21     done now is the access motion, which is, of course, a different kind of

22     access --

23             MR. LUKIC:  Of course, I don't mind.

24             JUDGE ORIE:  -- compared to the one you would like to raise.

25     Then we go through it.  And then Mr. Groome was first to ask time for

Page 372

 1     making submissions and then you will have an opportunity to raise any

 2     matter you would like.

 3             MR. LUKIC:  Thank you, Your Honour.

 4             JUDGE ORIE:  Then we would like to hear from you as soon as

 5     possible whether you oppose any of the five additional -- added

 6     categories which all very much look as if they are not serving any direct

 7     forensic purpose in this case.  But we would first like to hear from you.

 8             Then presentation and tendering of evidence is next on my list.

 9     At the Status Conference on the 29th of March, the Prosecution requested

10     that the Chamber consider an exception to its guidance in relation to the

11     timing of filing a bar table motion for its intercept operator evidence.

12     The Prosecution proposed that it file a bar table motion in advance of

13     calling witnesses on that portion of its case, rather than at the

14     conclusion of that portion of its case as provided for in the guidance.

15             Mr. Groome, the Chamber accepts this proposal as a means to

16     potentially reducing the number of witnesses needed to be called to

17     testify in relation to intercept evidence.  Therefore, the Prosecution

18     should file such a motion well in advance of the time it intends to begin

19     presenting evidence on the intercept component of its case to allow for

20     adjustments, if any, after the Chamber decides on the bar table motion.

21     The Chamber also instructs the Prosecution to include in this same motion

22     any requests for judicial notice of authenticity of documents it is

23     seeking in relation to its intercept evidence.

24             MR. GROOME:  Your Honour, is it the Chamber's preference that

25     prior to the Prosecution filing a bar table that it submit it to the

Page 373

 1     Mladic Defence to seek their comments on whether there are particular

 2     specific intercepts or documents of authenticity that it may not

 3     challenge?  Would that be helpful to the Chamber?

 4             JUDGE ORIE:  I think whatever is identified as not being in

 5     dispute always helps to streamline the case.  So therefore if you could

 6     communicate with Mr. Lukic before filing the motion, that would be

 7     appreciated.

 8             MR. GROOME:  We will do that, Your Honour.

 9             JUDGE ORIE:  Then I'm done with my items on the agenda.

10             Mr. Groome, yesterday you indicated that you would like to have

11     approximately 20 minutes to make a submission in relation to the

12     Chamber's guidance on the presentation and the tendering of evidence.

13     The Chamber has considered this request and grants you the requested

14     20 minutes.  Therefore, you may proceed.

15             MR. GROOME:  Thank you, Your Honour.  It may assist the Chamber

16     to have an enumeration of the guide-lines as the Prosecution understands

17     them.  I've given copies to the Court Officer and ask that they be handed

18     up now and I've given Mr. Lukic a copy prior to sitting today.  And I'd

19     also would just please inform our interpreters that I have provided

20     copies of the written text of this to them.  Hopefully that will assist

21     them in their work.

22             Your Honours, thank you for giving me time to address you on the

23     issue of the guide-lines.  They are a matter of great concern for the

24     Prosecution.  The four primary reasons they are of concern are the

25     following.

Page 374

 1             The guide-lines force the Prosecution to use court time

 2     unnecessarily and is therefore inefficient.  The Prosecution has been

 3     given a limited amount of court time, 200 hours, in which to present its

 4     evidence, an admittedly large volume of evidence.  Based on the prior

 5     practice of the Tribunal, we carefully developed a case we could present

 6     in 200 hours.  The guide-lines would significantly impact the proceedings

 7     by calling into question our ability to meet our high burden of proof at

 8     trial in that limited amount of time.

 9             Two, the guide-lines make large categories of evidence it has

10     collected and adduced over the years presumptively inadmissible.  Despite

11     the fact that the very same evidence has been admitted and accepted by

12     other Chambers, going out to obtain new statements which meet the

13     particular specifications of the guide-lines results in an unnecessary

14     and enormous expenditure of resources and time.

15             Three, the guide-lines force the Prosecution to take new

16     statements of witnesses despite the fact that these witnesses have

17     already provided sworn evidence that is admissible under the Rules.

18     Forcing the Prosecution to get new statements will delay the trial

19     because we will need time to do that.  The statements will have to be

20     translated and they are, of course, disclosable material.  The process of

21     taking new statements will be a hardship to witnesses and in some cases

22     be a re-traumatisation of those witnesses.

23             Fourth, the guide-lines encroach upon the independence of the

24     Prosecutor as established in Article 16 of the Statute.  It does this by

25     creating new criteria for admissibility - criteria not found in the

Page 375

 1     Rules of Procedure and Evidence with respect to the evidence the

 2     Prosecution can tender.  The Prosecution has the obligation and the right

 3     to investigate, collect, and present the evidence supporting the

 4     indictment.  The guide-line places unnecessary, presumptive, and

 5     arbitrary restrictions on the Prosecution's ability to present its case

 6     and impede its ability to do so efficiently.

 7             At the outset I want to say that the Prosecution recognises that

 8     the guide-lines are an attempt to develop a more efficient trial

 9     procedure that fully guarantees a fair process for Mr. Mladic.  The

10     Prosecution commends the Chamber for this effort.  The Prosecution

11     considers that it has an independent obligation to prosecute its case in

12     a fair and efficient manner and has -- and will in the future do

13     everything to further this obligation.  The Prosecution has already

14     demonstrated its commitment to this principle in this particular case.

15             The Prosecution requests the following:  That the guide-lines as

16     promulgated to date be considered a clear expression of the Chamber's

17     preferences with respect to the evidence presented before the Chamber,

18     preferences that, wherever possible, the Prosecution will seek to abide

19     by, and that any presumptive limitation on the type of evidence the

20     Prosecution can tender, the time the Prosecution can use to examine a

21     92 ter witness, the number of exhibits that can be tendered with a

22     particular witness be abandoned and that such determinations be made on a

23     case-by-case basis by the Trial Chamber in its application of the

24     Rules of Procedure and Evidence.

25             I would like to present you with a few examples of the impact of

Page 376

 1     the guide-lines.  I will first address guide-line 2, the Chamber's

 2     presumptive bar on the introduction of prior witness testimony pursuant

 3     to Rules 92 bis and ter.  Guide-line 2 would force the Prosecution to

 4     expend enormous resources, personnel and financial, in taking new

 5     statements which would be less reliable than a witness's prior

 6     cross-examined evidence.  In many cases those new statements would

 7     re-traumatise victim witnesses.  In other cases, witnesses are adverse to

 8     the Prosecution and would be unlikely to co-operate with the Prosecution

 9     and provide statements.

10             In November 1994, Dzenana Sokolovic was shot while crossing a

11     Sarajevo street with her 7-year-old son Nermin.  The bullet passed

12     through her abdomen and struck Nermin in the head, killing him instantly.

13     A member of my staff met with her last week.  She found Ms. Sokolovic to

14     still suffer very deeply the effects of that day.  Discussing the event

15     was extremely difficult.  The Prosecution considers that an appropriate

16     exercise of its discretion would be to adduce her evidence via 92 bis.

17     Her original statement did not include all of the essential information.

18     She gave testimony in the Dragomir Milosevic case, a complete account of

19     the event occupies approximately 45 pages of transcript.  Indeed, as

20     Ms. Sokolovic does not provide evidence relevant to the acts and conduct

21     of the accused, the Chamber's guide-line suggest that the Chamber too

22     would prefer her evidence to be adduced via 92 bis.

23             The Prosecution has the right under Rule 92 bis to tender her

24     prior testimony.  Guide-line number 2 prevents it from doing so and

25     forces us to either call her viva voce or to take a new ICTY statement.

Page 377

 1     Either way, Ms. Sokolovic would suffer more because of what happened

 2     18 years ago.

 3             Forcing the Prosecution to get new statements will delay the

 4     trial because we will need time to arrange to go on missions, to meet

 5     witnesses, redraft statements, have witnesses review and make changes and

 6     finalise the statements.  In some 92 bis cases the witness will need to

 7     sign a new declaration.  This will be a drain also on Registry resources.

 8     The statements will then have to be translated and disclosed.

 9             As a matter of law, her cross-examined testimony given over

10     five years ago, closer to the time of the event, would be entitled to

11     more weight than any new statement we would take today.  The guide-lines

12     effectively force the Prosecution to take its best evidence of Nermin's

13     death and simply not use it, not use it and instead take a new statement

14     that is likely to be less reliable and cause significant hardship to the

15     witness.

16             RM070 was a brave woman who gave public testimony of her repeated

17     rapes by Bosnian Serb soldiers in another trial.  Only her identity was

18     concealed.  She did this so the Tribunal would have in its records a

19     public account of what so many women suffered.  Guide-line number 2 puts

20     the Prosecution in the position of being unable to use this courageous

21     and cross-examined evidence and to lead her evidence once again in its

22     entirety or to go and try to reduce her testimony into a written

23     statement.  This would require substantial time and would undoubtedly

24     re-traumatise her.

25             There are a significant number of Prosecution witnesses who are

Page 378

 1     considered or properly considered adverse witnesses for which the

 2     Prosecution intends to tender their cross-examined testimony.  The

 3     Prosecution is not in possession of witness statements and it is unlikely

 4     to be able to get such statements.

 5             Consider the case of RM349.  The Prosecution has no ICTY

 6     statement from RM349, a witness who has given evidence in both the

 7     Popovic and Tolimir cases.  He is currently working as an investigator on

 8     a Defence team for another related case before this Tribunal.  His

 9     testimony in the Tolimir case given last year is the best evidence now in

10     possession of the Prosecution.  The guide-lines prohibit its use.  We

11     anticipate that he would be reluctant to give a statement.

12             Ljubomir Obradovic, the Prosecution has no statement.  There is a

13     transcript that can be tendered.  It has been accepted in other cases,

14     lastly by the Karadzic Trial Chamber.  This Chamber has promulgated

15     guide-lines never encountered in any of the trials to date before this

16     Tribunal.  The very evidence admitted before other Chambers is now

17     presumptively inadmissible before this Trial Chamber.  There are

18     29 witnesses in the Srebrenica component of the case alone for which

19     there is no statement, witnesses who are properly considered adverse to

20     the Prosecution, witnesses who are unlikely to willingly participate in

21     the taking of a statement.

22             Your Honours, we accept your preference for statements and where

23     we have them and can appropriately use them, we will.  But the first

24     guide-line, the requirement that 92 bis and ter motions are limited to a

25     single consolidated statement, impedes our ability to do so.  Last week

Page 379

 1     the Chamber relaxed this guide-line to some degree with 92 bis witnesses

 2     and said it would contemplate the introduction of a short supplemental

 3     statement.  Even in the case of 92 bis witnesses, in a significant number

 4     of cases the Prosecution has two substantive statements, each dealing

 5     with a separate significant body of evidence.

 6             Consider witness RM274, a protected witness who provided evidence

 7     in the Tolimir and Karadzic Chambers.  The witness has two significant

 8     statements.  He is suffering from PTSD.  He says he does not want to hear

 9     from us again but we are free to use his statements.  The guide-lines

10     require us to go to that witness and consolidate the two statements.  We

11     reasonably anticipate that he will not co-operate.  We reasonably

12     anticipate that approaching him will aggravate his PTSD.  We face a

13     similar situation with RM358.

14             There are 11 witnesses in the Srebrenica component of the case

15     alone whose evidence now resides in two substantive statements.

16             With respect to no supplemental statements for 92 ter witnesses,

17     Judge Orie, in the Stanisic and Simatovic case you established a practice

18     where the Prosecution and the Defence in the case of 92 ter witnesses

19     were permitted to have witnesses create a chart of all of the amendments

20     the witness requested to make to their original statement or testimony.

21     For witnesses with many corrections, this process saved a significant

22     amount of time.  We understand the guide-lines to now prevent the

23     Prosecution from doing this and require each of these corrections to be

24     led live in court.  I submit an inefficient use of time.

25             Guide-line 4 presumptively limits the number of exhibits a

Page 380

 1     witness can give evidence about in a written statement to five.

 2     Guide-line 5 prohibits the tendering of any associated exhibits with

 3     92 ter witnesses.  Each of the exhibits must be adduced live in court.

 4     Looking at specific witnesses shows that the implementation of this rule

 5     would result in an unnecessary use of court time.  First, I'd like to

 6     point to the -- in the case of 92 bis witnesses.

 7             Dr. Youssef Hajir was a doctor who worked in Sarajevo during the

 8     siege.  He provides evidence of the treatment of victims of one sniping

 9     and two shelling incidents.  The Prosecution seeks to tender his evidence

10     via 92 bis.  His evidence includes more than five exhibits, the medical

11     records of victims of the crimes in this indictment.  The guide-lines

12     force the Prosecution to exceptionally justify the tendering of more than

13     five exhibits.  There is no exceptional justification other than the fact

14     that the exhibits are directly relevant to an adjudication of this

15     indictment.  In the alternative, the guide-lines would require us to call

16     him to testify here in court and tender the exhibits live in court, to

17     essentially have him read information on documents that the Chamber is

18     well able to read itself, an unnecessary expenditure of time.

19             Similarly, RM055 is an international observer in Sarajevo and was

20     present during the second Markale shelling.  The Prosecution intends to

21     adduce this evidence via 92 bis.  According to the law of his country,

22     his statement needed to be taken in a somewhat involved judicial process.

23     That process has been completed.  There are approximately 12 documents

24     associated with that statement, exhibits which include multiple letters

25     of protest to Mladic and other senior VRS officers.  A 92 bis witness by

Page 381

 1     the name of Stephanie Frease provides important evidence regarding

 2     intercepted communications, again more than five exhibits.

 3             One of the detrimental impacts of the guide-lines would be that

 4     it would prior the Prosecution to devote much of the time for its case

 5     presentation to the introduction of documents through witnesses with no

 6     direct knowledge of the crimes.  It would be unfortunate and possibly

 7     misunderstood by members of the public to view this last trial about the

 8     crimes in Bosnia and see little or no victims and primarily people who

 9     kept records.

10             With respect to 92 ter, David Harland is an example of how the

11     fifth guide-line impacts on 92 ter witnesses.  He was a senior

12     UN official present in Bosnia for most of the war.  He participated in

13     numerous high-level meetings with Mladic, Karadzic, and others.  The

14     Prosecution intends to tender his amalgamated statement, a statement

15     which has as associated exhibits his contemporaneous meeting notes and

16     situation reports.  His statement gives necessary context to these

17     documents and the Chamber can read the meeting reports for itself to have

18     the best evidence of what happened in those meetings.  Guide-line 5

19     prohibits the Prosecution from tendering the associated exhibits, despite

20     them meeting the clear legal standard of the Tribunal's jurisprudence and

21     it forces us to unnecessarily use hearing time to adduce this evidence.

22             Similarly, Dr. Bakir Nakas treated victims of 14 different crimes

23     in Sarajevo.  The Prosecution estimates that it can lead his evidence

24     92 ter with the necessary and only the necessary medical records in about

25     30 minutes.  An approach adopted by the Perisic Trial Chamber with this

Page 382

 1     witness, an approach adopted by the Karadzic Trial Chamber with this

 2     witness, an approach now rejected by this Trial Chamber.  The guide-lines

 3     require the Prosecution to have Dr. Nakas discuss each document live in

 4     court, a process that would require several hours of direct evidence, not

 5     the 30 minutes that this process can take using the Rules appropriately.

 6     The same issues apply to many other witnesses.  I'll simply note the case

 7     of Momir Nikolic.  He has approximately 20 exhibits as part of his 92 ter

 8     package, each one of them important for the Chamber to have before it.

 9     The guide-lines would force the Prosecution to lead the evidence of these

10     20 documents, adding significant time to an already lengthy examination.

11             Finally, Your Honours, guide-line 6 restricts the examination of

12     92 ter witnesses to 30 minutes.  The guide-line prohibits the Prosecution

13     from using perhaps the most effective tool for achieving real efficiency

14     in the trial.  It can be used with witnesses who have an abundance of

15     substantive and directly relevant evidence.  When used appropriately, the

16     Prosecution can introduce a great deal of evidence in written form and

17     use a focused, direct examination to lead evidence of particular relevant

18     in this case that is not dealt with in the prior statement or testimony.

19             For example, again the case of Momir Nikolic.  His direct

20     examination in the Tolimir case took nine hours and 20 minutes, in the

21     Karadzic case it took six hours.  We believe that if the Chamber allows

22     us to tender his evidence using in part the tool of 92 ter, we can deal

23     with matters of particular significance to this case in a two-hour direct

24     examination, a savings of four to seven hours of court time with a single

25     witness.

Page 383

 1             Guide-line 6 presumptively makes this impossible and forces the

 2     Prosecution to call Nikolic and many, many other witnesses viva voce in

 3     order to adduce the evidence necessary to meet our burden of proof,

 4     evidence that would be impossible to lead in 30 minutes.

 5             Your Honours, we developed a case that we could present in

 6     200 hours based on the prior developed practices of this Tribunal.  The

 7     guide-lines make it impossible to adduce all of the evidence necessary to

 8     meet our burden of proof in 200 hours.  To the extent that the Chamber

 9     would not allot us any additional time, the guide-lines serve to

10     improperly and unfairly impede the Prosecution's ability to present its

11     case.

12             Your Honours, I recognise that you have said that you will

13     deviate from the guide-lines in exceptional circumstances.  Last week

14     when I asked for clarification about what this new legal standard for

15     admissibility - the exceptional circumstances - would be, the Chamber

16     informed us:

17             "We'll first all consider to what extent it is possible to

18     identify exactly what exceptional circumstances are because it's a rather

19     abstract term, and if we think we are able to do so, we will give you

20     further guidance."

21             Your Honours, it would be irresponsible for us as Prosecutors to

22     proceed in the presentation of the Prosecution case not knowing what this

23     test would be.  To do so we could be proceeding with the uncertainty of

24     whether we will be able to meet this undefined standard and, hence, meet

25     our burden of proof in the time currently allotted for the case.

Page 384

 1             Your Honours, in conclusion, all the Prosecution asks is that you

 2     amend the legal effect of the guide-lines so that they are understood to

 3     be an expression of the strong preference of the Chamber, a preference we

 4     will seek to abide by wherever we can appropriately do so.  I ask that

 5     the presumptive and arbitrary exclusions of evidence or restrictions of

 6     evidence that can only be overcome by exceptional circumstances be

 7     completely abandoned and replaced with a carefully considered and

 8     reasoned approach to the presentation of evidence and the particular

 9     circumstances of individual witnesses.

10             Judge Orie, I make my last submission with some reluctance

11     because it is not my intention to embarrass you, but it is something that

12     must be said.  You have presided over the only case that I am aware of in

13     the entire history of the Tribunal in which a significant and

14     demonstrable and measurable level of efficiency was achieved.  Your

15     administration of that trial and that Trial Chamber's willingness to

16     consider time-saving methods of adducing proof --

17             JUDGE ORIE:  Mr. Groome, I'm going to interrupt you here, the

18     guide-lines, the guidance comes from the Chamber and what happened in

19     another case was decided by that Chamber.  Therefore, I think that - but

20     let me consider that further with my colleagues in a second - I think

21     it's inappropriate to address individual Judges on this kind of matters.

22     But before I take this position as a firm position of this Chamber, I

23     would have to consult with my colleagues.  It underlines how much I am

24     aware that I'm functioning in a collegial system.

25             MR. GROOME:  I accept that, Your Honour.

Page 385

 1                           [Pre-Trial Chamber confers]

 2             JUDGE ORIE:  Mr. Groome, the Chamber has no problem whatsoever if

 3     you refer to practices which were -- which you have seen in other cases,

 4     but that should be irrespective of whether Judges in those cases are

 5     sitting in this case or not, let alone that you personally address Judges

 6     for that purpose.  Please proceed.

 7             MR. GROOME:  Your Honour, that was not my purpose and I

 8     apologise.  I did not mean to draw undue attention to you as an

 9     individual --

10             JUDGE ORIE:  Well, you did so rather explicitly.  You even

11     apologised for it -- for that.  I think the apologies were the better

12     part of your submission.  Please proceed.

13             MR. GROOME:  Your Honour, I did it only to point out that in that

14     particular case, the Prosecution was able to adduce its case in less

15     than -- in half the time that it originally estimated and a third less

16     time than the Trial Chamber had estimated and it had allotted for that

17     case.  I simply raise that to strongly urge this Chamber not to abandon

18     practices that have worked in other trials in favour of presumptive

19     guide-lines that are clearly going to create significant delays and

20     inefficiencies in this trial process, delays that are entirely

21     unnecessary and avoidable.

22             I thank you for receiving my submissions today and for your

23     consideration of the matter which is of paramount importance to the

24     Prosecution.  Should you reject this application, I would respectfully

25     ask that the Chamber do so in a reasoned written opinion so that the

Page 386

 1     Prosecutor can more carefully consider how best to proceed.

 2             I am prepared now to address any particular questions or concerns

 3     that the Chamber may have.

 4             JUDGE ORIE:  Before we do so, Mr. Lukic, is there anything you

 5     would like to say in response?  Because we have a few matters.  First of

 6     all, the Chamber will consider whether we will just consider the matter

 7     on the basis of this oral submission or whether we would invite the

 8     Prosecution to make a written submission on the matter.  We will first

 9     have to discuss that further.

10             Mr. Lukic, I do not know whether you would want to reserve your

11     right to respond to this submission or whether you would already like to

12     respond now.

13             MR. LUKIC:  I would just like to respond briefly, Your Honour,

14     orally, and if necessary we can respond to their -- to the Prosecution's

15     written submissions.

16                           [Pre-Trial Chamber confers]

17             JUDGE ORIE:  Please do so.

18             MR. LUKIC:  Thanks.

19             We are always in the same position even in our local

20     jurisdictions.  The Prosecution is always aware of efficiency and the

21     Defence is always more aware of protection of human rights and of having

22     a fair trial for the defendant.  Even before we responded to requests

23     made by the Prosecution to change your guide-lines, and every time we

24     emphasize that we are happy with the guide-lines we received from the

25     Chamber.  So we just reiterate this position now.

Page 387

 1             When my learned friend talked about 92 bis statements and their

 2     intention to introduce transcripts, it is very hard to believe that there

 3     is no anything substantial in the transcript that goes against the

 4     Rule 92 bis, and Defence will object any written statement tendered under

 5     the Rule 92 bis if it goes to prove that the acts and conduct of the

 6     accused as charged in the indictment because it is directly against the

 7     rule, and this also goes to the acts and conduct of subordinates of the

 8     accused.

 9             So we think that any transcript is not good tool to have 92 bis

10     statement introduced for any witness.  And when discussed about the

11     exhibits, the limitation of five exhibits per the witness, and if you

12     decide to deviate from your first decision, then it would be -- impact

13     the time allocated to the Defence to cross-examine the witness.  So the

14     whole system of the guide-lines has to be changed.  That's all we had at

15     this time, Your Honour.  Thank you.

16             JUDGE ORIE:  Thank you, Mr. Lukic.

17                           [Pre-Trial Chamber confers]

18             JUDGE ORIE:  Mr. Groome, of course we'll consider your

19     submissions, which are relatively large.

20             I would, first of all, have a brief question to Mr. Lukic.

21             Mr. Lukic, I would have a short question for you.  If I

22     understood you well, but I'll re-read, you say acts and conduct of the

23     accused is a bar to admission under Rule 92 bis.  But there -- it would

24     include -- let me just find it, one second, please.

25             MR. LUKIC:  92 bis says:

Page 388

 1             "... to proof of a matter other than the acts and conduct of the

 2     accused as charged in the indictment."

 3             JUDGE ORIE:  Yes.  What I was -- you were talking about the

 4     subordinates.  Do you have -- yes, I'm -- well, I think I'm at page 46,

 5     line 20.

 6             Do you have case law to say that whatever is done by subordinates

 7     is excluded and is included in acts and conduct as charged against the

 8     accused?

 9             MR. LUKIC:  I don't know it by heart.  We addressed it before.

10     But I can tell you that according to the indictment, every single

11     military person, police officer, and even local Serbs according to the

12     indictment are subordinate to my client.

13             JUDGE ORIE:  Yes.  But are there other cases where whatever

14     someone who was subordinated was -- or under the -- whether that was all

15     excluded.  We'll have a look at it but that is, of course, one of the

16     issues we'll have to specifically research in order to follow your rather

17     general rejection of almost of the 92 bis material.

18             MR. LUKIC:  I'm sorry that I have to disappoint you, but I really

19     don't know by heart the case law of the Tribunal.  I can address it in --

20             JUDGE ORIE:  I'm not blaming you for that.

21             Mr. Groome, you gave a lot of examples.  We'll have to consider

22     it on a more abstract level as well, although I know that it's a

23     dangerous expression at this moment in view of what you just said.

24             For example, you gave the example of Dr. Youssef Hajir.  Now, I

25     don't have his statement anywhere on my mind, but I can imagine that if a

Page 389

 1     doctor and if he testified in the Galic case, which I don't know whether

 2     he did or not, but I've seen similar evidence, then you get sometimes a

 3     statement where a doctor says I treated this person and we did that and

 4     that, it was on that and that day, et cetera, et cetera, and then you

 5     find a long list of medical documentation attached to that.  Is it your

 6     understanding that without the medical documentation, you would not

 7     accept if a doctor says he was brought in on that same day, we found that

 8     the person had bullet wounds, we treated him, et cetera, et cetera.  Of

 9     course the medical documentation would tell us exactly what kind of

10     antibiotics he was administered or -- well, whatever, or whether the

11     person died and we have then a report.  I mean, to what extent do you

12     think that such evidence would not be convincing without those documents?

13             Of course it can be challenged.  Of course if the other party

14     comes and says, well, we don't believe the doctor, the other party

15     knowing that all this medical documentation exists will think it over

16     twice before it starts challenging it, because then we would be in a

17     situation where, of course, I take it, the Prosecution would provide that

18     medical documentation and not just rely on what the doctor said.

19             I'm -- I was just wondering what your thoughts are, and I take

20     one of the examples.  Again, I'm not addressing at this moment, and

21     certainly not on behalf of the Chamber, the merits of your submissions.

22     But I just wondered how you look at this in view of my question of such a

23     statement by a doctor on a specific date mentioning specific persons.

24     Why -- what the medical documentation adds until there is a challenge to

25     that statement.

Page 390

 1             MR. GROOME:  Your Honour, I recognise the importance of your

 2     point, and if the Chamber reviews our filings on the 10th of February

 3     with respect to our witness list, the Prosecution there said that it was

 4     our understanding that none of the elements of the crimes here, the

 5     severity of the injury, was something that needed to be established.  And

 6     the Prosecution in that filing indicated that we would not be producing

 7     large amounts of medical documentation unless there was a challenge.

 8     Having said that, in a sniping case it may be very, very important for

 9     the Chamber to see the original intake sheet where the body of the victim

10     is indicated and there's a line going through the -- showing the entry

11     wound and the exit wound.  And it is the Prosecution's case where there

12     is a medical record that is directly relevant to the Chamber's

13     adjudication of that particular crime, that is something the Chamber

14     should have before it.  And we would not be seeking to tender every

15     exhibit tendered in prior evidence that a witness may have given.  And if

16     the Chamber reviews the filings that we have made to date, we have

17     substantially reduced the number of filings.  In the filing for Osman S

18     elak we reduced it from about 80 documents to about 41 documents.  So we

19     are trying to go through the documents that are associated exhibits and

20     really limit them to only that which is essential for this Chamber's

21     determination of this indictment.  I take the Chamber's point and it is

22     something that we do intend to do.

23             JUDGE ORIE:  Yes, for example, if I look at your example you're

24     talking about treating of victims of one sniping and two shelling

25     incidents.  Now, first of all, I have no idea whether these are

Page 391

 1     five victims from shelling incidents or not.  What the experience has

 2     taught us over the years is that often those who were victims of shelling

 3     incidents had injuries or died as a result from shrapnel, whereas, as

 4     you, I think, rightly point out, for sniping victims it may be

 5     specifically relevant, which already raises the question here whether you

 6     could make a distinction between attaching or using associated exhibits

 7     specifically on sniping.  And then for sniping I would be inclined to

 8     agree with you that sometimes the details of the wounds are very

 9     important, sometimes they are not.

10             So therefore, that's -- this is the kind of thoughts that come to

11     my mind if I hear you say that a doctor who gave a statement on the

12     treatment of victims of sniping and shelling incidents, that to what

13     extent, if not challenged, if the statement is not challenged, because

14     if, of course, the Defence would say this doctor was -- was not working

15     in that hospital but then we have a different challenge or the doctor

16     must have invented all of this because -- then, of course, you would rely

17     on any medical documentation which I would say in the first round you may

18     well do without or with only a small portion of it.  These are the

19     thoughts that came to my mind and that's the reason why I asked you how

20     you look at such an example if I give a different angle of view on that

21     matter.

22             MR. GROOME:  Your Honour, I fully agree with that.  It is our

23     intention that prior to the submission of any 92 ter or 92 bis

24     application, to do a very careful review to make sure that only essential

25     evidence is being put before the Chamber.  I would discourage any blanket

Page 392

 1     rules that it's necessary for sniping but not for shelling --

 2             JUDGE ORIE:  No.

 3             MR. GROOME:  -- because I can imagine a case where the shrapnel

 4     is recovered and it identifies the weapon used.  But I assure the Chamber

 5     that that is our intention, and if it assists the Chamber, the

 6     Prosecution would be prepared in its 92 bis and ter submissions to set

 7     out why we believe the particular exhibit that we want to tender as an

 8     associated exhibit is directly relevant to the adjudication in this case.

 9             JUDGE ORIE:  Yes, not only relevant, but necessary for the

10     appreciation of the evidence.

11             MR. GROOME:  Yes, Your Honour.

12             JUDGE ORIE:  Yes, that's a different standard, you see.

13             Let me -- I have no further questions.  We'll have to consider

14     your submissions, Mr. Groome.  You spent quite some time on it.  This is

15     not to blame you for that, but it takes us adequate time as well to

16     consider it.

17             And it will -- the result of our further consideration of the

18     matters you brought to our attention, of course, will be important for

19     how to proceed, whether you'd like to further make further submissions or

20     whether you would seek a decision from the Chamber on the matter.  So

21     let's first think about it.

22             MR. GROOME:  Thank you, Your Honour.

23             JUDGE ORIE:  Then is there any other matter any of the parties

24     would like to raise at this moment?  If not ...

25                           [Pre-Trial Chamber confers]

Page 393

 1             JUDGE ORIE:  Yes, Mr. Lukic, I think we are still waiting for the

 2     matter you would like to raise in relation to the use of technical

 3     facilities in the Detention Unit if I understood you well.

 4             MR. LUKIC:  Yes, Your Honour, thank you.

 5             First of all, we hope that we will cure some of problems

 6     Mr. Mladic has with EDS system by disclosing him those batches of

 7     witnesses we received from the Prosecution recently.  Otherwise, for him

 8     it's almost useless to use this room since he can do it only twice a

 9     week, I think two hours a day.  So it's four hours in total per week.  So

10     it's not of much use.  And he is not able to use these facilities yet

11     since nobody provided him with the proper training and with the

12     translation of the manuals so he could at least follow every time the

13     proceeding, how to log on, and so on.  So that system is not working for

14     him at this moment at all, although we are thankful for -- to the Chamber

15     for helping us to have this system introduced at the first --

16             JUDGE ORIE:  Does this mean - sorry to interrupt you, Mr. Lukic -

17     that Mr. Mladic has received no training at all?  That's not, I think,

18     what was relayed to the Chamber.  And if there's a concern about that,

19     then, of course, we would have to further inquire into what support

20     Mr. Mladic has received, how he has tried to use the facilities --

21             MR. LUKIC:  He did -- sorry.  He did receive some training, but

22     due to his problems with short-term memory, he needs that manual every

23     time to log on and it's in English, and when he's sitting there alone

24     with English manual, he's not able to manipulate the computer and the

25     system at all.

Page 394

 1                           [Pre-Trial Chamber and Legal Officer confer]

 2             JUDGE ORIE:  Mr. Lukic, I didn't have the details on my mind, but

 3     my staff reminds me that we received on the 23rd of April a message from

 4     the Registry that on the 19th of April, that Mr. Mladic had been provided

 5     with at least some B/C/S manual material which would assist him.  Now,

 6     I'm -- this seems to contradict what you are saying.  Certainly a reason

 7     to further verify.  Have you verified it or is it just on the basis of

 8     what Mr. Mladic told you?

 9             MR. LUKIC:  I didn't.

10             JUDGE ORIE:  Then I think it would be wise if you get in touch

11     with those who are assisting Mr. Mladic in this respect and find out

12     whether it is true that there's no B/C/S manual been given, and if that

13     would be the case, then of course we would further verify on what basis

14     we have received the information we did.

15             MR. LUKIC:  I just saw English manual in his hands the last time

16     I visit Mr. Mladic --

17             JUDGE ORIE:  Yes, but I think --

18             MR. LUKIC:  -- so it's the only thing I could verify.

19             JUDGE ORIE:  Well, I think it would be good before this matter is

20     raised that you --

21                           [Pre-Trial Chamber and Registrar confer]

22             JUDGE ORIE:  Then I am informed by the Registry of the following.

23     The following confirmation of receipt:

24             "I, the undersigned, Ratko Mladic, confirm that I've been issued

25     with the following:  EDS manual in B/C/S."

Page 395

 1             And this was signed on the 19th of April and it's signed -- it

 2     appears that Mr. Mladic's signature is on this document.  So therefore I

 3     think before raising this matter in court, perhaps try to find the B/C/S

 4     manual.  I would be surprised if despite this signed receipt that

 5     Mr. Mladic would not have it somewhere.  Again if another copy is needed

 6     or if lost it, then we should, of course, try to resolve such problems.

 7     But it seems that the basis for this part of your submission is not very

 8     strong at this moment.

 9             MR. LUKIC:  I feel much as a hearsay witness, Your Honour,

10     because -- that's why I prepared -- [overlapping speakers] --

11             JUDGE ORIE:  I appreciate that, Mr. Lukic, and therefore perhaps

12     it would be good to verify these matters before you raise them in court,

13     but no problem.

14             MR. LUKIC:  And Mr. Mladic asked me if it is possible to give him

15     a couple of minutes so he has to address some also technical things from

16     the UNDU and I would rather not interfere.

17             JUDGE ORIE:  Of course we are not in a Status Conference here.  I

18     will first discuss matters, whether this is appropriately done in this

19     way or whether we would invite you to make a submission, a written

20     submission on the matter, or a submission on behalf of Mr. Mladic orally.

21             MR. LUKIC:  Thank you, Your Honour.

22             JUDGE ORIE:  Let me just first consult with my colleagues.

23                           [Pre-Trial Chamber confers]

24             JUDGE ORIE:  Mr. Lukic, the Chamber considers it appropriate if

25     you raise the matters and not Mr. Mladic.  And of course this is not --

Page 396

 1     it -- this decision is also based on previous experiences and strictly

 2     keeping to the subject matter to be raised.  So please raise the matter

 3     Mr. Mladic would like to have raised.

 4             MR. LUKIC:  He just wants to raise some problems with the visits

 5     from family and friends and also some -- his written communication with

 6     friends and family, some letters were returned to him.  So I'm afraid I

 7     don't know all the details and I could be wrong again.

 8             JUDGE ORIE:  Yes.

 9             Mr. Lukic, first of all, you will understand that these are

10     matters - however important they may be at this moment for

11     Mr. Mladic - are not typically subject for a Pre-Trial Conference.  So

12     therefore, I would encourage Mr. Mladic to communicate with you and that

13     you, first of all, try to resolve these matters, visit matters, with the

14     UNDU and with the Registry.  The same would be true for the

15     correspondence, whatever matters there are.  If they finally would have

16     an impact on the proceedings and the fairness of the proceedings, you

17     know that they can be raised before the Chamber.  But of course, we would

18     not deal with the matter unless it has first of all been appropriately

19     dealt with and that you would have addressed the competent authorities

20     for visits, for et cetera, that is, the Registry.  So therefore I think

21     that we should not deal with them at this moment in this context.

22             MR. LUKIC:  Thank you, Your Honour.

23             JUDGE ORIE:  Then any other matter to be raised by the parties?

24             MR. GROOME:  Not by the Prosecution.

25             JUDGE ORIE:  Yes.

Page 397

 1             Then how are we going to proceed?  Because we are at the

 2     conclusion --

 3             THE ACCUSED: [Interpretation] Not at all.

 4             JUDGE ORIE:  -- of this Pre-Trial Conference.

 5             Mr. Lukic, the Chamber has considered how it would consider your

 6     request for a delay in the start of the trial for 90 days.  We have

 7     discussed it during the last break, but we'll -- we don't want to hurry

 8     ourselves.  We'll take our time to consider, especially perhaps also

 9     re-read your submissions of this morning.  Nevertheless, it's also an

10     urgent matter, we can't wait long.  The Chamber hopes to be able to reach

11     a decision today and communicate it to the parties already in an informal

12     way, but to give reasons for it at a later moment in writing, whether

13     that would be a written decision or whether it would be reasons given for

14     a decision which would be put on the record orally earlier.  We do not

15     know yet.  But we really try to -- we really hope to be able to tell the

16     parties today whether or not we would grant the delay as you requested.

17             Mr. Groome, that helps you out for the filing of tomorrow if we

18     would be able to do that.

19             MR. GROOME:  Yes, Your Honour.

20             JUDGE ORIE:  If not, then at least we would do it as quickly as

21     we can.

22             So as matters --

23             MR. GROOME:  Your Honour.

24             JUDGE ORIE:  Yes.

25             MR. GROOME:  Could I ask would it be possible for the Chamber to

Page 398

 1     adjust its dead-line for the submission of the amended witness list to

 2     24 hours after we receive the decision of the Chamber?  Would that be

 3     possible?

 4             JUDGE ORIE:  Any objection, Mr. Lukic?

 5             MR. LUKIC:  No, Your Honour.

 6             JUDGE ORIE:  Then it will be 24 hours after the Chamber has

 7     communicated its decision on the request of Mr. Lukic for a delay in the

 8     start of the trial of 90 days.

 9             MR. GROOME:  Thank you, Your Honour.

10             JUDGE ORIE:  So therefore with, of course, this reservation on

11     our mind, as matters stand now - and that's how we'll proceed at this

12     moment - we -- the opening statement of the Prosecution is scheduled and

13     will begin on the 16th of May and most likely continue on the

14     17th of May.  We therefore, as matters stand now, adjourn until the

15     16th of May, courtroom and exact time to be announced by the Registry at

16     a later date.

17             We stand adjourned.

18                           --- Whereupon the Pre-Trial Conference adjourned

19                           at 11.47 a.m.