Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11326

1 Monday, 28 August 2006

2 [Pre-Defence Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.28 p.m.

6 JUDGE PARKER: Good afternoon to you all. It's been such a long

7 time, some of the faces. It's good to see them back. The Chamber was

8 concerned to hear of the illness of Mr. Vasic, Mr. Domazet, and we did

9 extend, through officers, our good wishes to him. We hope that he is

10 proceeding with recovery.

11 Mr. Moore, there is a change of counsel appearing?

12 MR. MOORE: Your Honour, yes. We've got the good fortune of

13 having Mr. Vincent Lunny, who comes from Scotland originally, and he will

14 be assisting us in our case as Mr. Smith has gone on to greater fields.

15 JUDGE PARKER: Thank you, Mr. Moore. We welcome Mr. Lunny.

16 Now, the purpose of the session this afternoon is to deal with

17 issues before we commence the evidence in the Defence in this case. There

18 are a number of issues that are apparent at this stage, and we propose to

19 go through them. Before we do so, could I ask, first of you, Mr. Moore,

20 whether there is any particular issue that the Prosecution would want to

21 raise at this time.

22 MR. MOORE: Your Honour, there isn't anything that immediately

23 stands out. There are topics which clearly will require decisions from

24 the Trial Chamber. There is one area perhaps in relation to whether

25 certain summaries are adequate or not, but that may be dependent upon

Page 11327

1 other rulings.

2 The only other matters that I would be concerned about are the

3 level of notice that the Prosecution should receive from the Defence in

4 respect of witnesses to be called. We would submit that the same

5 principle of two days' notice should apply. And indeed we would submit

6 that all the criteria that were used for the Prosecution by way of service

7 of documentation should also apply in relation to the Defence

8 presentation.

9 JUDGE PARKER: Very well. Thank you, Mr. Moore.

10 MR. MOORE: As matters stand, just to assist the Court, we had

11 information that on Friday, that the first witness to be called by the

12 Defence, that the summons had not been served as of Friday. We do not

13 know what the situation might be. I put that forward to assist the Court.

14 JUDGE PARKER: Thank you, Mr. Moore.

15 Now, Mr. Domazet, first, would you be able to indicate your

16 understanding of the present position concerning Mr. Vasic's health?

17 MR. DOMAZET: [Interpretation] Good afternoon, Your Honours. Good

18 afternoon to all. Mr. Vasic underwent his last examination, as predicted,

19 on the 24th of this month. He has now started to work with us again.

20 He's working on our witnesses in Belgrade and making the necessary

21 preparations for our case to begin. If everything goes fine, he expects

22 to be in The Hague this coming Friday. Therefore, I hope that he will be

23 joining us here in this courtroom as of next Monday. His health will

24 certainly be a problem. When he is here, I expect he will be able to give

25 you a much more thorough update on the state of his health. Despite the

Page 11328

1 fact that he had been advised by his doctors to desist from working until

2 at least the end of September and spend the entire month recovering, he

3 decided to start work. He is able to resume his normal activities to some

4 extent, but he tires easily.

5 One thing that he asked me - and I believe this can be raised

6 later, when scheduling is discussed - he would certainly like to take an

7 active part in the proceedings. He does believe, however, that five days

8 a week would be too strenuous a pace for him throughout the Mrksic Defence

9 case. He believes that one day off per week, be it Friday or any other

10 day, would be much more conducive to his appearances in the court-room.

11 Needless to say, I wish him every luck and I would like him to continue as

12 lead counsel. I am a mere co-counsel, and I joined the trial two or three

13 days late. I do not think I would be in a position to be in charge of the

14 Defence case without him; however, as things are at the moment, I believe

15 he will be joining us despite all the difficulty, for which I apologise to

16 both the Trial Chamber and to the OTP. I am here referring to the number

17 of delays that were caused by all of our problems. We have provided a

18 witness list for our case, but this I believe is a matter which will be

19 discussed later, since Your Honour's question was only about Mr. Vasic's

20 health. Therefore, I expect that all these issues raised by Mr. Moore

21 about the witnesses will be raised at some point. We have provided our

22 first list, and I expect that we shall be submitting a continuation of

23 that over the following days, today and possibly tomorrow, however, we

24 have experienced a great deal of difficulty for all the above-mentioned

25 reasons.

Page 11329

1 JUDGE PARKER: Thank you, Mr. Domazet.

2 MR. MOORE: Your Honour, could I just intervene for one moment,

3 because you did ask a question how things were and I wanted to hear how

4 the case of Mrksic was going to deal with certain problems. Could I ask

5 the Court to have a look at a document that I've had prepared for my

6 learned friends and the Court. It really relates to what I will call the

7 witness situation.

8 JUDGE PARKER: While that is being distributed, Mr. Moore --

9 MR. MOORE: And there's three for the Defence.

10 JUDGE PARKER: -- yes, I propose first to ask Mr. Borovic whether

11 there is any particular matter which the Defence of Mr. Radic would like

12 to raise. We will be dealing with the ordinary issues, but we want to

13 make sure that we hear you if there's some particular matter.

14 MR. BOROVIC: [Interpretation] Thank you, Your Honour. I would

15 like to welcome you, too, back to this case after our break. I hope our

16 cooperation will be as great as before the break. As for the witnesses,

17 we will be speaking about that later, but there are two principal issues

18 that perhaps we should raise today. As regards the witness list in this

19 case -- or rather, a particular witness, I am talking about a note that

20 was submitted at a later stage pursuant to an order from the Chamber, as

21 regards that note, the ruling is that it should be submitted, that is the

22 original text, to all the Defence teams, that a handwriting expert should

23 be called in to judge the authenticity of that note. And all we can say

24 is that we will not be going into any further detail until all of these

25 actions are taken.

Page 11330

1 On the other hand, I do believe that the OTP's submission is

2 groundless, that only some aspects are legally relevant. If anything at

3 all is tendered, then we seek that the entire note be tendered because we

4 lost countless hours examining the witness about a whole series of

5 circumstances concerning that note. He did confirm some of our

6 submissions. When we checked the photocopy of this note, we realised that

7 many of the things that the witness said before this Trial Chamber were

8 just simply not true. We were adamant about that note because we had

9 misgivings about the authenticity of certain portions of that note, or

10 maybe the entire note. We believe the Trial Chamber should accept that.

11 If the entire note is admitted into evidence, then we would move

12 that further cross-examination of this witness be allowed; namely, the

13 Radic Defence believes that this would be in the best interests of an

14 equitable approach. This was the last witness. The Prosecution left him

15 as the last witness to testify to some aspects of my client's

16 responsibility. My remarks are about all these circumstances that I have

17 now spoken about.

18 Additionally, if all of these proposals are accepted by the Trial

19 Chamber, including some of the OTP proposals, then the Defence would be

20 adamant that we be allowed another chance to additionally cross-examine

21 this witness.

22 Another issue, Your Honour, by your leave, it's about the OTP's

23 contacts with Defence witnesses. On the 11th of July, 2006, we submitted

24 a 65 ter list motion, after which, in compliance with the orders, we also

25 filed supplements to some of the summaries. I think this is something

Page 11331

1 that can be raised later in the course of today's hearing. As for the

2 witnesses, all of them are mentioned on our 65 ter list. The OTP asked

3 that the Trial Chamber allow, in keeping with Article 18 of the Statute

4 and Rule 39(I) of the Rules, new interviews be conducted with these

5 witnesses from the Defence 65 ter list.

6 The motion was filed on the 17th of August, but on the 3rd of

7 August, which means a great deal earlier, the witnesses received their

8 summons. Police officers came to their flats to serve these on them,

9 saying that they were witnesses to some circumstances and events that

10 occurred in the former Yugoslavia. The summons remained unspecified as

11 well as the events and circumstances.

12 It is our belief that although we do not fear whatever it is that

13 these witnesses might say to the OTP, this is a move which might lead to

14 these witnesses being intimidated. Everything the OTP might want to know

15 can be found out in cross-examination, and Rule 39(E) refers to the

16 pre-trial stage when evidence is gathered, and not something like this.

17 These are some matters of principle that we felt the Chamber ought to know

18 about. Thank you.

19 JUDGE PARKER: Thank you, Mr. Borovic. Could I mention that for

20 the most part they are the subject of motions presently before the Chamber

21 for decision. If it is that you want either additional material or you

22 want to put new submissions to the Chamber, that should be done

23 immediately because decisions will be coming out this week in respect of

24 those matters. So I could urge you to deal with that as soon as possible,

25 if that is your position. And of course, if something new emerges from

Page 11332

1 decision, you will be in a position to move some further motion and

2 advance it and support it in the normal way. Thank you.

3 Mr. Lukic, is there any particular matter which concerns the

4 Sljivancanin Defence?

5 MR. LUKIC: [Interpretation] No, Your Honour. I assume that you

6 will be asking questions today about all the things that we are here for.

7 There is one thing I'd like to say about my friend Mr. Borovic's position

8 in as far as my understanding of your position in relation to these two

9 motions are concerned that have been dealt with. There is another

10 argument in addition to what we wrote in our written motion regarding the

11 Prosecutor's motion to interview witnesses. I would ask the Chamber to

12 please take this additional argument into account, in addition to all the

13 other arguments in our written motion. Mr. Borovic spoke about this a

14 while ago, but I would say that this is a procedural argument.

15 The Prosecutor now wishes to interview our witnesses; this is long

16 after the 65 ter motion had been filed and we're well into our

17 proceedings. We all agreed in this court-room, both the Prosecutor and

18 the Defence teams, that both the Statute and the Rules say nothing about

19 this sort of motion. There are no definite rules governing such cases.

20 We decided to all rely on the jurisprudence of the Tribunal as known up to

21 this point.

22 There is one thing I'd like to say, though. Article 18 of the

23 Statute and Rule 39 of the Rules address the possibility of having

24 additional interviews with witnesses, but this is only about the

25 investigation stage. Article 18 is under the heading "Investigations" and

Page 11333

1 so is Rule 39 of the Rules. My interpretation is that whoever wrote the

2 Statute and the Rules allowed for this possibility to occur while evidence

3 is gathered for the OTP case, and at that stage alone. Yet, the OTP now

4 wish to re-interview certain witnesses, but we don't know which witnesses

5 exactly. After they have concluded their case, it is for this reason that

6 I believe the Prosecutor should, under the Statute and the Rules, not be

7 allowed to re-interview these witnesses. If it's for the purposes of new

8 evidence, then that would be all right; or, for example, if a witness like

9 Florence Hartmann appears, this is something new for their case, but they

10 can't interview witnesses now once their case has been concluded and once

11 they have led all their evidence without this being in relation to

12 possible later evidence emerging from the Defence case.

13 Everything else is the same as before. We shall try not to repeat

14 ourselves, but if you want us to further elucidate our position, we are

15 prepared to, needless to say. As for everything else, I fully agree with

16 what Mr. Borovic said in relation to that document. I believe sufficient

17 detail has been provided about this.

18 I would merely add that in relation to such documents, this Trial

19 Chamber, at least, has taken a very clear-cut position. When those

20 diaries emerged, we could not get acquainted with those before the witness

21 appeared; on the other hand, when additional documents appeared in

22 relation to certain witnesses, the witnesses were then re-examined or

23 re-appeared for cross-examination. I don't think the Trial Chamber would

24 be facing any sort of a dilemma were it not the case that the Prosecutor

25 has already concluded their case. Things being what they are, it's down

Page 11334

1 to the Chamber to rule on this and decide which course of action should be

2 taken. So far so good. Thank you very much, Your Honour.

3 JUDGE PARKER: Thank you very much, Mr. Lukic. We will proceed

4 now to look at matters that appear to require attention under the existing

5 Rule 65 ter and Rule 73 ter. Now, in that respect, the Trial Chamber at a

6 Pre-Defence Conference has the power to set the number of witnesses that

7 will be called by each Defence team and determine the time allocated to

8 the Defence to present its case. Could I indicate that in respect of each

9 of those, we would defer our action and decision. And as this conference

10 continues, you will understand why. But we formally defer, and we may

11 return to that at some near time in the future.

12 There have been issues raised concerning the adequacy of the

13 summaries that have been provided by the Defence. And I think, Mr. Moore,

14 that brings us perhaps to the sheet of paper or papers that you've had

15 distributed.

16 MR. MOORE: Yes. I'm going to take them slightly out of order, if

17 I may. May I go to the case for Sljivancanin. One can see quite clearly

18 there's 24 witnesses, and -- or we can see with the exception of witness

19 24, Mr. Sljivancanin, the summaries that have been received are now

20 adequate. My learned friend amended his original summaries, and that

21 meets our requirements.

22 With regard to the Radic witnesses at the very start, rather there

23 are, in reality, seven witnesses. Witness 1 and 3 -- because this has

24 been subject to various motions. The Court is aware there have been a

25 large number of motions moving backward and forward. Witness 1 and

Page 11335

1 Witness 3 we initially took the view that the summaries were adequate. In

2 actual fact, I take the view they are inadequate, and we would ask my

3 learned friend - who has shown willing so far - to additionally add the

4 summaries on Witness 1 and 3. The rest are perfectly acceptable. So

5 Witness 1 and Witness 3 we would ask for expanded summaries, and the rest,

6 they are fine.

7 In relation to Mr. Radic, he falls into a slightly different

8 category. Initially he was not going to be a witness. An application has

9 been made for him to be called. I can say now we do not oppose that;

10 however, the summary that we have received is inadequate and we would ask

11 for that to be expanded. But that has been much more recent and it may be

12 a question of time.

13 May I now, then, deal with the matter that concerns us the most,

14 which are the witnesses for Mr. Mrksic. Your Honours can see that there

15 are 36. If we exclude Witness 12, 13, 24, and then 33 to 35 inclusive, I

16 regret to say that the adequacy of the summaries, it demonstrates that

17 they are wholly inadequate. As often as not we are getting references to

18 five hours in chief, but the summary might be six lines or eight lines.

19 The Rules are quite specific about the summaries. They are summaries, we

20 accept that, but it's not a case of topics; it's a question of facts that

21 the Defence seek to rely upon. And in this case, we say the Defence have

22 failed comprehensively.

23 So we would seek an order for those summaries to be expanded and

24 to conform with the Rules.

25 JUDGE PARKER: Now, the first five witnesses you contend at the

Page 11336

1 moment that you don't yet have adequate summaries. Is that it?

2 MR. MOORE: Is Your Honour referring to the witnesses for Mrksic?


4 MR. MOORE: The sequence, as I understand it, is witness 33 is

5 witness 1. Witness 14 should be number 2. Witness 31 there is or are

6 queries in relation to it. It's not fatal, I don't pretend that it's

7 fatal, but it certainly is required. Witness 4 and 5 are adequate. So

8 that will get us over the first hurdle in relation to time with the -- the

9 first witness having a query on it, the matter that I've already referred

10 the Court to. So we would be able to proceed with those witnesses.

11 However, may I just indicate the problem that may arise, and it is

12 quite simply this, that without adequate summaries from other witnesses,

13 we do not know whether the questions that we would seek to ask witnesses 1

14 to 5 inclusive are really 2 to 5 inclusive are going to deal with all the

15 topics that may arise subsequently. And clearly, the Rules are created to

16 give cross-examining party, whether it be Defence or Prosecution, an

17 element of notice of topics that may be raised in the -- in that case.

18 Because we have the inadequacy, we are unable to say whether in actual

19 fact the cross-examination that we will do will fully meet the topics that

20 may arise subsequently. That clearly is the reason for the Rule.

21 We would submit that even though my learned friend Mr. Vasic has

22 been ill, the case of Mrksic at one stage was going to commence before the

23 break, and they surely must have proofs of evidence or some indication of

24 what topics they will be dealing with as well as the facts, because it is

25 the facts for which these witnesses are silent. So we seek an order for

Page 11337

1 my learned friend, who is an experienced co-counsel and has had two months

2 to prepare this, to please now furnish those details as a matter of

3 expedition.

4 JUDGE PARKER: Mr. Moore, is it not the order of the Chamber that

5 these matters after the first five witnesses be provided by Friday?

6 MR. MOORE: I believe that is the order, but my understanding was

7 from the way my learned friend was speaking that there was going to be

8 considerable difficulty in relation to that and that they may not be able

9 to adhere to the order of the Court. That's -- that is the worry that we

10 have.

11 JUDGE PARKER: Well, the proposition you've been advancing is that

12 what has been provided so far is inadequate.

13 MR. MOORE: Yes.

14 JUDGE PARKER: The Chamber, by its order, has accepted that for

15 all but one witness and has -- there is an order on foot for it, a matter

16 to be remedied by next Friday.

17 MR. MOORE: Well, Your Honour, then I will leave the matter there.

18 JUDGE PARKER: Thank you.

19 Mr. Domazet, is there anything you wish to say or add?

20 MR. DOMAZET: [Interpretation] Your Honours, the way I understand

21 Mr. Moore's words -- as for these first five witnesses, there seem to be

22 no problems for the OTP. It seems that the only objections being raised

23 and -- are in relation to two witnesses, as in not being very adequate.

24 We are talking about witness number 14 and witness number 31. I will have

25 a look, and I don't think that should be too much trouble to deal with.

Page 11338

1 The remaining witnesses in the OTP's submission are sufficiently

2 documented.

3 As for all these other witnesses, I have been told to submit by

4 this coming Friday a more detailed statement of reasons. It's true, I did

5 say it would be difficult to get this done by Friday, and I would ask, if

6 possible, for this deadline to be extended until sometime next week.

7 Because, as I stated at the outset, I will be expecting Mr. Vasic here in

8 The Hague on Friday evening. I will be going through all of this with him

9 over the weekend and try to complete this task. The reason being, he was

10 the person who previously worked with me on this first part, and he is the

11 person who has been in touch with our witnesses earlier, as now. All the

12 more so because I expect that in relation to some of the witnesses we

13 shall withdraw -- or rather, we shall withdraw some of our witnesses from

14 the list. Some were impossible to get in touch with, some simply refused.

15 I do have to see Mr. Vasic, talk to him about it, and see what the state

16 of these matters is. I don't think I could do this adequately or as the

17 OTP expect me to by Friday.

18 As far as information in relation to these two remaining witnesses

19 is concerned, I could elaborate on that, and then the first five would be

20 okay by the OTP. I would ask that my deadline be moved to sometime next

21 week, Tuesday possibly, because I would try to use the weekend to work

22 with Mr. Vasic on this and eventually complete this task.

23 The same thing applies to personal details. Unfortunately, we

24 have not been able to submit these in relation to some witnesses. We are

25 in the process of receiving the personal details of some witnesses. I

Page 11339

1 have two new witnesses now. This evening I'll be receiving some more,

2 probably. We have already started submitting these to the OTP as we are

3 receiving them, and we shall continue in that fashion. This has nothing

4 to do with the motion. We shall keep submitting this sort of information

5 to the OTP on a daily basis.

6 I believe that I have answered your question, Your Honour.

7 JUDGE PARKER: Thank you, Mr. Domazet.

8 [Trial Chamber confers]

9 JUDGE PARKER: In the view of the Chamber, Mr. Domazet, and in

10 view of the very particular circumstances that exist, we would vary the

11 order presently made in respect of the provision of summaries of the

12 evidence to be provided by each witness to be called by the Mrksic Defence

13 so that the additional details sought in respect of witnesses 14 and 31 be

14 provided immediately. The summaries of the next five witnesses, that is

15 witnesses 6 to 10, to be called by the Mrksic Defence to be provided by

16 Friday of this week. The summaries of the remainder of the witnesses to

17 be provided by Wednesday of next week. And by those means, we hope that

18 we will make provisions sufficient to enable the difficulties concerning

19 Mr. Domazet to be overcome.

20 Now, Mr. Borovic, Mr. Moore mentioned three witnesses on your

21 list, 1, 3, and 8, with the note that they needed amplification. Is that

22 something you accept should be attended to?

23 Ms. Tapuskovic.

24 MS. TAPUSKOVIC: [Interpretation] Good afternoon, Your Honours.

25 Good afternoon to everyone in the courtroom. I will be dealing with this

Page 11340

1 issue that you just put, Your Honours, to the Defence of Miroslav Radic.

2 OTP in their submissions required additional information -- or

3 rather, they wanted the summaries for all witnesses proposed by Radic's

4 Defence to be extended. On the 31st we provided additional summaries, on

5 the 31st of July. These summaries pertain to three witnesses, whereas the

6 remaining two witnesses were outstanding until we received the ruling of

7 the Trial Chamber as to which type of defence was to be used and whether

8 there was any room for the use of the defence of alibi under Rule 67.

9 We received the ruling of the Trial Chamber, and I will give you

10 the date presently. It was dated the 22nd of July. And in paragraph 8 of

11 that ruling it is stated that the OTP informed informally the Trial

12 Chamber that it was content with these summaries and that this problem was

13 not going to be raised again. The Defence acted in accordance with the

14 Chamber's ruling dated the 22nd of August and supplied the addendum for

15 two witnesses that the OTP required.

16 Therefore, I have to say that we're quite surprised to hear now at

17 the Pre-Defence Conference that the OTP is once again dissatisfied with

18 the summaries provided for witnesses 3 and 1.

19 As for witness number 8, what the OTP said is quite correct and we

20 shall definitely supplement the summary. The reason for this summary

21 being somewhat short is that we ran out of time, and we wanted to wait

22 until the accused Radic received the status of the witness.

23 As for witnesses 1 and 3, it is quite clear that they will be

24 testifying about a very narrow issue. In our summaries, we stated

25 everything that could be potentially relevant and useful to the OTP. We

Page 11341

1 are unable to put in absolutely all of the evidence in the summary. The

2 OTP will be able to explore this further when preparing for their

3 cross-examination.

4 It is simply impossible for us to add any other information to the

5 summaries that have already been supplemented, because based on the

6 existing summaries it is quite clear that these witnesses will be

7 testifying about a very narrow issue, both geographically and temporally.

8 It pertains to just one item in the indictment, thus we fear that the

9 Defence is unable to provide any supplemental information.

10 As for witness number 8, we will supplement the summary as soon as

11 possible.

12 Thank you.

13 JUDGE PARKER: Thank you.

14 Mr. Moore, witnesses 1 and 3.

15 MR. MOORE: We just wish to have clarification on really it is one

16 paragraph in a summary and another paragraph. We are not making a

17 significant complaint in any way at all. I'm quite sure it can be done

18 with discussion with my learned friends informally.

19 JUDGE PARKER: We will leave it on that basis, Mr. Moore, for

20 witnesses 1 and 3. Quite clearly what has been provided in respect of the

21 accused Mr. Radic requires to be substantially developed. There can

22 be no question of that.

23 Very well. And Mr. Lukic gets a good housekeeping seal of

24 approval. Try and keep it up, Mr. Lukic. Yes.

25 There was mention in the witness lists of the possibilities of

Page 11342

1 witnesses being provided or dealt with by way of a statement under 92 bis

2 by one or two of the Defences, not all of them. And there has been a

3 suggestion also that there might be evidence taken under Rule 73 -- 71.

4 With respect to 92 bis, the Chamber would indicate that if parties

5 intend to use 92 bis, it would be beneficial for everybody for planning if

6 those applications were made shortly.

7 With respect to Rule 71, if that is to be -- if that is still

8 under consideration, the Chamber would like to suggest that it can see no

9 practical advantage at this stage in this trial of deposition evidence

10 under Rule 71. If the subject matter is amenable to Rule 92 bis, that

11 would be more practical. If, as is apparent, though, the use of Rule 71

12 doesn't save any time because counsel need to be present when the

13 deposition is taken, to cross-examine. So that we would have to adjourn

14 here to allow evidence to be taken wherever the witness was. So we're

15 losing time.

16 If there's a problem about the witness travelling because of

17 health or some such, look at 92 bis or look at the idea of a videolink to

18 overcome the difficulty of travel. So could we suggest that thought be

19 given to those other possibilities. It's not a matter of excluding the

20 evidence, it's a matter of finding the most efficient way of receiving it,

21 and we would suggest that, unless there's something we're unaware of, Rule

22 71 wouldn't appear to save anybody any time or add to the efficiency of

23 what's intended.

24 Expert reports. We understand that each Defence intends to lead

25 expert evidence. There is clearly advantage in due notice of that being

Page 11343

1 given. And then there is a requirement, of course, that the Chamber fix

2 times for that to be done and for the Prosecution to respond to each

3 expert report. We would have in mind, given the course of evidence that

4 will be proceeding, that the -- Monday, the 18th of September, should be

5 the date fixed for the filing and disclosure of expert reports and that

6 the Prosecution should respond in respect of the expert report of the

7 accused Radic and Sljivancanin by Monday, the 16th of October. In respect

8 of the expert report of the accused Mrksic, one week earlier; that is, the

9 9th of October.

10 If I could return to Rule 92 bis statements, it would seem useful

11 if we indicate that the two Defences contemplating 92 bis witnesses should

12 have an indication of a time. I forgot to deal with this when I mentioned

13 them a little while ago. We would suggest again Monday, the 25th of

14 September, for any motions for 92 bis. That's four weeks from now, which

15 should be adequate time for those to be looked at.

16 One witness being considered by the Mrksic Defence, Mr. Domazet,

17 is Mrs. Mrksic, and it's mentioned that she might give evidence partly

18 under 92 bis and partly by oral testimony. Could we suggest a way of

19 simplifying this for you. 92 bis is a fairly complex procedure. If

20 Mrs. Mrksic is to attend to give some evidence, you could use Rule 89(F)

21 to provide simply a statement of the parts that are not covered in your

22 intentions. She could attend to give her evidence and simply tender the

23 statement, affirming it to be correct, and then go on to deal with those

24 parts of the evidence that you want to be dealt with by oral testimony,

25 and in that way diminishing your pre-trial preparation and your

Page 11344

1 preparation and the work that has to be done away from here, but not

2 lengthening the time spent in court for Mrs. Mrksic. So you might

3 consider that.

4 We now turn to a matter of very considerable concern to the

5 Chamber, that is the estimated number of witnesses and the estimated

6 lengths of the three Defence cases. These comments apply more

7 significantly to the Defence cases of Mr. Mrksic and Mr. Sljivancanin than

8 to Mr. Radic, but they're directed to all three accused. As we understand

9 the time estimates that have been provided, a couple of them were

10 mathematically incorrect, but if corrected they were dealing only with the

11 time that each counsel expected to take with their own witnesses and made

12 no allowance for the other two Defence counsel to examine and no time for

13 the Prosecution. If one were just to take a broad, global position and

14 say that the other two counsel and the Prosecution together should have

15 the same time as each Defence counsel estimated to spend with their own

16 witness, if you added those up, we reach the middle of April next year.

17 Now, that appears to the Chamber to be simply quite unreasonable.

18 This trial went too slowly in the Prosecution stage. If you remember, we

19 had to progressively impose tighter restrictions on the Prosecution to try

20 and deal with that. We certainly do not intend to do anything to prevent

21 the proper presentation of Defence, but we cannot comprehend that the

22 Defence in this case could warrant evidence through until the middle of

23 next April. That would -- with then time for final addresses and

24 decision, we could reach almost two years to try this case.

25 With the greatest of respect, Counsel, we suggest you need to put

Page 11345

1 your thinking caps on again. Now, this is why I indicated the Chamber

2 would reserve at the moment its position about the number of witnesses and

3 the length, because it wants Defence counsel to think again. It's much

4 better -- we don't know your case the way you do. It's much better that

5 you do it rather than we attempt some sort of arbitrary dealing with it.

6 In fairness to the accused and to your own professional skill and

7 judgement, we would prefer that you look at the matter. It seems likely

8 that there is some overlap in witnesses between some Defences. That

9 firstly needs to be looked at.

10 Secondly, there seems clearly to be overlap within particular

11 cases. An enormous number of helicopter pilots, Mr. Mrksic, to talk about

12 one helicopter flight, for example. We could perhaps reduce those to one

13 or maybe, at the most, a second person who was recording official logs.

14 That having been done, what each Defence needs to do is to look at the

15 question: Is this a serious and significant point, a material point in

16 defence? Not just showing some minor not-greatly-significant witness who

17 didn't get everything right, but is this really going to advance your

18 defence to lead this witness on a point that is really material? We would

19 ask you to ask that question of yourselves. And then ask yourselves: If

20 the Chamber were wanting to rule on time in a way that gave us just enough

21 to get the essential evidence out of the witness, how long would we need

22 with the witness? Try and impose your own time limit to avoid us wanting

23 to do something. You will realise that it is just, it seems to the

24 Chamber, grossly unfair to the accused for this trial to drag on to the

25 middle of next year or even beyond, and that's where it's going at the

Page 11346

1 moment unless something is done.

2 So we would like to suggest that in the next days of this week and

3 the next weekend there be serious attention given to that. And at an

4 early stage of next week, we will pick it according to how witnesses are

5 going and where it's appropriate to intervene in the flow of evidence. We

6 want to raise again this question of the estimates of the number of

7 witnesses and the time they are to take. And we would hope by then that

8 each Defence will have been able to provide a revised list of witnesses

9 with less witnesses, a revised time estimate for each witness. And we can

10 then see whether enough has been done. If it hasn't, we're going to have

11 to look at the Chamber taking more significant action, as the Rule

12 provides. But we would prefer to see that being done by those who really

13 know their own case.

14 [Trial Chamber confers]

15 JUDGE PARKER: Now, I did indicate that that applies more

16 stringently to two of the Defences, but while the Radic Defence is much

17 shorter and restricted, I'm sure there's still some scope, Mr. Borovic,

18 for your attention to those matters as well.

19 When we come to witnesses, and especially at the early stage

20 before these matters are resolved, could we indicate, particularly to

21 Mr. Domazet but to all counsel as they deal with the witness, please ask

22 yourself the question: Is it really important I deal with this issue or

23 that issue? Don't worry about tedious formalities. You can accept them

24 to be taken by the Chamber. What we are concerned about is getting to the

25 heart of your defence, getting to the heart of the issues in this trial,

Page 11347

1 and spending time on those, not wasting time on incidentals that aren't

2 going to decide this case in the end. We have an obligation to your

3 clients, we have an obligation to all the other accused awaiting trial,

4 and we have an obligation to the international public to get this defence

5 properly heard as quickly as possible; and we hope we can achieve that.

6 Now, it's -- the issue whether it's intended that there be opening

7 statements by counsel, I think in two of the three cases the accused made

8 a personal statement at the beginning of the trial. I would understand

9 that would not be thought to be repeated, but we would, of course, allow

10 an opening statement by each counsel when they commence their case. But

11 bear in mind, it's not a closing statement when you're revising all the

12 evidence. Again, it can be a very pointed opening statement when you are

13 getting to the heart of your defence. In short, get in there and try and

14 command the attention of our minds to the critical issues, not give an

15 expansive eloquent discussion of matters that are not going to determine

16 this trial.

17 A matter raised by Mr. Moore is one which we had intended to come

18 to, that is the standard procedural orders. Is there any basis upon which

19 any counsel would want to vary the procedural orders that we had in place

20 for the Prosecution, the orders about provision of statements,

21 notification of documents, things of that nature? It seemed to be working

22 reasonably well, at least toward the end of the Prosecution case. The

23 Prosecution had some problems early on, which gave problems for the

24 Defence. If not, and I see no indication of any particular concern, we

25 would propose the continuation of the existing standing procedural orders

Page 11348

1 as they applied to the Prosecution to apply to the Defence, each Defence,

2 during the course of the trial.

3 Now, that of course requires, among other things, that there be

4 notice of witnesses ahead of their being called. And what was in place

5 was that notice was given two weeks ahead. Each Friday a revised notice

6 of the next two weeks was provided, and we would have in mind that should

7 continue. And of course that will -- at the moment the Prosecution has

8 notice only of the first five witnesses to be called, and that will be

9 brought up to time. And we will thereafter expect notices to be two weeks

10 ahead, measured each Friday.

11 Documents to be used during the evidence of a particular witness,

12 whether by Prosecution or Defence, needs to be disclosed 24 hours in

13 advance, if I could remind you, to the court officer for the purposes

14 of e-court.

15 There are some motions outstanding which will be the subject of

16 decision in the course of this week. Some have been mentioned by some

17 counsel already. We won't anticipate those decisions now, but we are

18 conscious of them and counsel can be confident that decisions will be

19 given, and that includes the Prosecution wish to interview witnesses and

20 the notebook of P-002.

21 Is there any further matter?

22 Mr. Lukic.

23 MR. LUKIC: [Interpretation] I would like to ask a procedural

24 question, since now things are turning around in this court-room, and this

25 is a question addressed to you. Perhaps you come from a different legal

Page 11349

1 system, so it's a useless question. But given the jurisprudence of this

2 Tribunal, I would like to ask the Chamber, just so we know the position on

3 the order of witnesses as soon as the witness is on its way, since we have

4 a joinder on our hands. For example, I do believe that the other two

5 Defence teams will have the right to cross-examine any of the Mrksic

6 Defence's witnesses.

7 What I want to know is how this Chamber feels about re-direct in a

8 situation where, for example, Mr. Moore is examining a Mrksic Defence

9 witness about aspects of my Defence, just by way of an example, whereas,

10 for example, the Mrksic Defence does not feel it should clarify these

11 issues in re-direct. In this case, will the other Defence teams have the

12 right to address the Chamber for further clarification or would their

13 examination be considered as some sort of cross-examination?

14 JUDGE PARKER: I think I must say a little here to indicate what

15 the Chamber understands to be the position. Unless there is some clear

16 conflict of position between one Defence and another over some matter,

17 normally we would allow each of the other two Defence teams to examine a

18 witness. Say a witness is called by the Defence of Mrksic, if there is no

19 conflict that's relevant to that witness, Mr. Borovic or a counsel for

20 Mr. Radic would be able to examine the witness, not cross-examine, examine

21 the witness, and Mr. Lukic, similarly, would be able to examine. If

22 there's a point where the Defences are in conflict, that would become a

23 right to cross-examine the witness. But you could examine further.

24 The Prosecution has a right to cross-examine at large on relevant

25 matters. Normally, the only re-examination would be that of counsel for

Page 11350

1 Mr. Mrksic. If some very unusual situation arose that was not able to be

2 resolved between Defence counsel in time for that re-examination, a motion

3 might be made specially for leave to re-examine, but that will be unusual.

4 So normally, only the counsel calling the witness would re-examine.

5 You didn't mention one matter which I think we have mentioned

6 before but I will mention again. Normally if an accused is to be called

7 as a witness, he would be called as the first witness. It's not an

8 inviable rule. There may be circumstances that justifies something

9 different, but if the accused is not the first person called and is left,

10 for example, until last, immediately the weight to be attached to that

11 accused's evidence can suffer because it appears that he is then able to

12 adjust his evidence to all the witnesses that have been called before,

13 whereas if he comes and gives his evidence first, there can be no such

14 suspicions about his evidence.

15 Has that dealt with your concerns, Mr. Lukic?

16 MR. LUKIC: [Interpretation] Very much so, Your Honour. You have

17 understood my query fully, and your answer definitely sheds light on my

18 dilemma.

19 I can also inform you that even prior to what you have just said

20 Mr. Sljivancanin's position was that he would be the first witness to

21 appear.

22 Before our Defence case really gets off the ground, we shall be

23 presenting some sort of an opening statement. Given our position in these

24 proceedings, it will be much closer to a closing argument than anything

25 else, but we shall try to fully comply with your instructions.

Page 11351

1 JUDGE PARKER: And even with our best hopes, that will be a little

2 way away; it won't be happening very shortly.

3 Mr. Borovic.

4 MR. BOROVIC: [Interpretation] Our position is the same as

5 Mr. Sljivancanin's position. We also believe that regardless of the order

6 indicated on the 65 ter list, Miroslav Radic should be the first to appear

7 in order to state his case as a witness, and we shall also be presenting a

8 brief opening statement at the beginning of our case.

9 Thank you.

10 [Trial Chamber and legal officer confer]

11 JUDGE PARKER: Mr. Domazet, you did foreshadow the possibility

12 that we might sit only four days a week. Could I indicate that for the

13 reasons which we've already indicated, unless there's some dramatic

14 revision in the list of witnesses and the time estimates, that is not

15 going to be possible. So if Mr. Vasic is ever in a position where he

16 needs a day off, you will have to cover fully on that day.

17 We take it, Mr. Domazet, that you have a witness ready for

18 Wednesday?

19 MR. DOMAZET: [Interpretation] Your Honours, first things first.

20 We shall do our best; there's no doubt about that. I expect that we shall

21 be able to curtail our witness list in terms of how many witnesses there

22 are and also in terms of how long individual witnesses will take. We

23 shall do whatever we can to take less time for all of this.

24 As for our first witness, I truly don't know what the situation is

25 with our first witness, since this used to be a witness on the OTP's

Page 11352

1 65 ter list, P-019, a protected witness from that list, who refused for

2 the OTP to submit his information to us so that we may get in touch. The

3 Chamber has reacted in a speedy fashion by issuing a subpoena.

4 Nonetheless, to this very day, I still don't know whether this witness

5 will in fact be appearing.

6 I would also like to have a word with the witness before he

7 appears. The situation being what it is, I truly don't know how we stand

8 on that and I'm not sure how far we got. It is my intention to personally

9 examine this witness in order to ease Mr. Vasic back into this trial. By

10 all means, it would be exceptionally important for the Mrksic Defence if

11 we could start on Monday, provided the witness is able to appear earlier,

12 which we don't know, because we would start with Mr. Vasic, and then there

13 would be a brief opening statement by the lead counsel, as is normally

14 done. If that should not be possible, I will do my best to start before

15 Monday, provided we have the witness in The Hague, and even should I not

16 be able to see the witness beforehand and talk to him, although I still

17 hope and believe that this would be possible.

18 JUDGE PARKER: Thank you for that, Mr. Domazet, and we support you

19 in your efforts. We did send a message to you, I believe, that should

20 there be a problem with the witness you intend to be your first, that you

21 have your next witness available. That has been arranged, has it?

22 MR. DOMAZET: [Interpretation] Indeed, Your Honour, I received that

23 message, and I duly responded that we would be doing our best.

24 It is, however, exceptionally difficult. We are facing a great

25 deal of difficulty organising our witnesses, and as we speak Mr. Vasic is

Page 11353

1 working on this. There are problems involving their passports, their

2 visas, their arrival. I think it is impossible to expect that any of the

3 witnesses -- of the four witnesses, foreseen for the following week, will

4 be here this week.

5 If P-019, the first witness on our list, who is a protected

6 witness, is unable to make it this week, then it is not very likely that

7 any other witnesses would be appearing. I am truly sorry, but this seems

8 to be the situation.

9 JUDGE PARKER: Mr. Domazet, we don't find that very satisfactory.

10 We do expect that there will be a witness to give evidence on Wednesday.

11 Do I make that clear? Very well. We appear then --

12 Mr. Moore.

13 MR. MOORE: Your Honour, may I -- you did ask whether there were

14 any matters to clarify.


16 MR. MOORE: To try and lighten the court atmosphere a little, can

17 I just deal with my learned friend Mr. Lukic's ability to dust table-tops

18 and Hoover carpets because his housekeeping is not quite as we would hope.

19 If Your Honour looks at the list, you will see that the defendant

20 Mr. Sljivancanin has managed a summary, I think, of 18 lines, which, given

21 the time estimate of between 15 and 20, is one line per hour. We would

22 ask and I think we have indicated that we would wish to have, please, a

23 proper and appropriate summary indicating facts from that particular

24 defendant.

25 JUDGE PARKER: Please discuss that with Mr. Lukic. I think at the

Page 11354

1 moment his good housekeeping seal of approval stands very much higher than

2 was possible at this stage of the Prosecution case, Mr. Moore, so --

3 MR. MOORE: We shall see.

4 JUDGE PARKER: -- tread carefully.

5 MR. MOORE: Can we deal with one or two other matters?

6 Your Honour has dealt with whether in actual fact we are going to

7 have a witness this week.

8 Secondly, in relation to the application to interview or speak to

9 a witness, a Defence witness, we rely clearly on the authorities that Your

10 Honours add, namely paragraph 15, that there is no property in evidence.

11 And then the fourth and final point, Your Honour did say that

12 documents that were to be used by witnesses, that that should be 24 hours

13 in advance. We would seek that that be 48 hours in advance.

14 JUDGE PARKER: I'm sorry. I hope I mentioned that was for the

15 e-court for --

16 MR. MOORE: I'm --

17 JUDGE PARKER: For opposing counsel it was 48 hours.

18 MR. MOORE: Yes.


20 MR. MOORE: Thank you very much.

21 JUDGE PARKER: I should have said more. Yes.

22 MR. MOORE: So it is 48 hours for notice in relation to the

23 documentation; 24 hours for e-court.

24 JUDGE PARKER: That's the least time that e-court needs. They

25 would appreciate 48 hours.

Page 11355

1 MR. MOORE: Yes. Thank you very much.

2 JUDGE PARKER: Mr. Lukic.

3 MR. LUKIC: [Interpretation] I think this is a good time for me to

4 raise another housekeeping matter, but I believe this should be done in

5 private session. It's not in reference to what Mr. Moore has just been

6 saying, but it's certainly something that I wish to advise the Chamber of.

7 JUDGE PARKER: Private.

8 [Private session]

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 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 11356

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 [Open session]

14 THE REGISTRAR: We are in open session, Your Honours.

15 JUDGE PARKER: Thank you.

16 May we thank counsel for their attendance, and we need now to

17 adjourn until Wednesday at 2.15. We are in another court-room, I believe

18 the small one.

19 We adjourn now.

20 --- Whereupon the Pre-Defence Conference

21 adjourned at 3.49 p.m.