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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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?
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
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
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
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
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]
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
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
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
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)
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
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
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.
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.
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
15 JUDGE ORIE: Then we move into private session.
16 [Private session]
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
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
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
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?
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
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
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.
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
25 JUDGE ORIE: Yes, I do understand that that's in general the
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.
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
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
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.
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
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
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
15 JUDGE ORIE: And you will raise them --
16 MR. LUKIC: No, he will. Or if you want me I can raise them
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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.
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.
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
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.
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
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:
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
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
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.
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
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
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
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]
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.
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."
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 --
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.
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
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
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.