Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8727

1 Wednesday, 20 March 2002

2 [Pre-Defence Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.21 p.m.

6 JUDGE LIU: Call the case, please, Madam Registrar.

7 THE REGISTRAR: Good afternoon, Your Honours. This is case number

8 IT-98-34-T, the Prosecutor versus Naletilic and Martinovic.

9 JUDGE LIU: For the sake of the record, may we have the

10 appearances, please.

11 For the Prosecution?

12 MR. SCOTT: Good afternoon, Your Honours. Kenneth Scott for the

13 Prosecutor, along with Mr. Roeland Bos and Ms. Marie-Ursula Kind. I do

14 expect Mr. Stringer and Mr. Poriouvaev soon.

15 JUDGE LIU: Thank you very much.

16 For the Defence?

17 MR. KRSNIK: [Interpretation] Good day, Your Honour. The lead

18 counsel for the Defence is Mr. Kresimir Krsnik, attorney from Zagreb,

19 co-counsel Christopher Meek and legal assistant Nika Pinter, an attorney

20 from Zagreb. Thank you.

21 JUDGE LIU: Thank you.

22 MR. SERIC: [Interpretation] Good day, Your Honour. I am

23 Branko Seric, counsel for Vinko Martinovic, and next to me is my

24 co-counsel, Mr. Zelimir Par.

25 JUDGE LIU: Thank you.

Page 8728

1 Mr. Martinovic, can you hear the proceedings in a language you

2 can understand?

3 THE ACCUSED MARTINOVIC: [Interpretation] Yes, Your Honour.

4 JUDGE LIU: It has been about six weeks since we saw each other.

5 Do you have anything to complain during that period?

6 THE ACCUSED MARTINOVIC: [Interpretation] No, Your Honour.

7 JUDGE LIU: Thank you very much. You may sit down, please.

8 Mr. Naletilic, can you hear the proceedings in a language that you

9 understand?

10 THE ACCUSED NALETILIC: [Interpretation] Yes, I do.

11 JUDGE LIU: How about your health?

12 THE ACCUSED NALETILIC: [Interpretation] I don't know.

13 JUDGE LIU: Well, I'm afraid you have to take care of your health

14 since it's the time for the changing of the season at this

15 moment.

16 THE ACCUSED NALETILIC: [Interpretation] I am taking care of it.

17 JUDGE LIU: Thank you. You may sit down, please.

18 Well, it is a long time, and welcome back to this trial. This is

19 a pre-defence conference held in accordance with Rule 73 ter. The purpose

20 of this conference is to help the Defence counsel to prepare their case.

21 So we are only dealing with the procedural matters rather than the

22 substantive ones.

23 There were several issues that we have to address during this

24 conference. The first one is the Rule 65 ter filings, namely, the total

25 number of witness and the estimated length of their testimony; two, the

Page 8729

1 Rule 71 motion filed by Defence counsel of Naletilic on deposition;

2 thirdly, the Rule 92 bis written statement; four, expert witness the

3 Defence intends to call; fifth, protective measures for the Defence

4 witnesses; sixth, exhibits; seven, the procedural matters concerning the

5 first day of the trial; eighth, other matters.

6 This Trial Chamber issued an order in respect of the pre-defence

7 filings dated March 12th, 2002. In that order, the Trial Chamber

8 requests for both parties to meet and discuss all of the above mentioned

9 matters and to present to the Chamber the results of that meeting, as well

10 as the areas of agreement at this pre-defence conference.

11 Now, first of all, we would like to hear the parties on the

12 meeting, and later on, we will deal with those special matters one by

13 one. Are there anybody from the parties who volunteers to take the floor

14 first?

15 Yes, Mr. Krsnik.

16 MR. KRSNIK: [Interpretation] Thank you, Your Honour. Yes, it has

17 been six weeks, but it has been like a brief moment for the Defence, and I

18 really don't know where to begin because there is so much to report and so

19 many problems about which I should tell Your Honours. So I will start

20 with today's meeting with our learned friends. I'm afraid that there are

21 many matters on which we have not reached an agreement. The Defence

22 wanted to reach agreement on two issues, one of which is at least the

23 names of people who, in order to save time, will not have protective

24 measures objected to by the Prosecution.

25 And secondly, I asked my learned friends to agree on the safe

Page 8730

1 passage motion, that is, we would like to avoid having to ask for safe

2 passage for each witness separately. My learned friends have enormous

3 power. By this, I do not mean that they abuse it; quite the contrary.

4 But in view of the fact that they do have a list of witnesses, I thought

5 we could agree which of our witnesses do not need safe passage and which

6 of them might require this. However, we have not managed to reach an

7 agreement on this either because our learned friends have told us that

8 this has to do with the relationship between the Defence counsel and the

9 Court. And we agree with this, but we did try to reach an agreement with

10 them about this. So I would like to inform Your Honours that the Defence

11 will submit requests. We asked for one safe passage to -- for two safe

12 passages today, one -- however, we would like to make a single submission

13 asking for safe passage for all the witnesses because we do not want

14 anything to happen to any of the witnesses arriving here voluntarily.

15 Since we do not know what the intentions of the Prosecution are, we are

16 forced to ask for this so that our case can proceed without any problems

17 and to avoid anything at all happening to any of our witnesses, because

18 then, of course, the Defence would not have any more witnesses to call.

19 No one would want to come.

20 Your Honours, I have good reason for saying this. I spent a

21 number of months in Mostar, and just before I left for The Hague, all the

22 media in Bosnia and Herzegovina published 60 new indictments -- they're

23 speculating. No one knows exactly who is indicted, who is not. Everyone

24 is upset, and this is certainly one of the reasons we are asking for this.

25 The Defence will make this submission, and we ask the Chamber to

Page 8731

1 respond to it.

2 We further discussed depositions with our learned friends and the

3 purpose for depositions. Unfortunately, I have to say that we have not

4 reached agreement on this either. The Defence truly feels that

5 depositions would meet their purpose for several reasons:

6 First, in order to expedite the proceedings; secondly, for reasons

7 of judicial economy; thirdly, because it is not insignificant that they

8 would appear after seven years later; and another reason are the

9 expenses. Of course, it is much cheaper to take depositions in Mostar.

10 We went to the court there. We looked at the premises. The court has

11 been renovated. It has all the facilities needed to -- for us to be able

12 to take depositions without any problems. Furthermore, we would save time

13 and money for the witnesses as well. And also, we would solve a lot of

14 problems concerning safe passage. They live there. The Victims and

15 Witnesses Unit would not have to take care of them. So it would really be

16 much more convenient, for all these reasons.

17 Furthermore, Your Honours, we also discussed the summaries of the

18 witness statements. There are a number of problems here, but I will not

19 go into them now. I am sure Your Honours will ask for further

20 clarification. If Your Honours or our learned friends are not satisfied

21 with the amount of detail and the extent of the summaries, we can provide

22 oral explanations. We can expand on these. But we did not have time.

23 Another problem, and I will ask Your Honours' assistance with

24 this: We are having a lot of problems connected with translation. About

25 80 per cent of our evidence has not been translated, so I truly do not

Page 8732

1 know how we shall be able to present this evidence. I have informed

2 Mr. Fourmy of all these problems. We have achieved an agreement on

3 certain priorities, so I hope that this problem will be solved on time to

4 avoid any damage to the Defence case.

5 Your Honours, we further discussed a problem which I found in

6 Mostar talking to the president of the court, asking for additional

7 information about their files. We have informed you of this problem in a

8 written submission, and we have discussed it with our learned friends

9 today. It is my duty to inform Your Honours that there are parallel

10 indictments which have been brought before the joint court in Mostar and

11 the cantonal and other courts in Bosnia-Herzegovina.

12 The Defence has come into possession of an indictment, and I will

13 be very explicit now -- against 22 members of the HVO from Sovici. This

14 indictment is dated -- it is dated the 1st of February, 1996. But its

15 number is KT 10/94, which means that it was filed in 1994, two years

16 later. We can only assume what the reason for this is, and we shall have

17 witnesses testify to this, because according to the laws of Bosnia and

18 Herzegovina, three months after the completion of an investigation, if an

19 indictment is not issued, then the proceedings are terminated. In any

20 case, we have an indictment against 24 members of the HVO from Sovici,

21 accused of all the crimes with which my client has been charged before

22 this Tribunal. However, neither my client nor the Convicts Battalion are

23 mentioned at all in this indictment. And to make matters even more

24 interesting, the same witnesses are testifying there as the ones who

25 testified here. Although, the president of the high court in Mostar - and

Page 8733

1 he will testify here if need be - has informed me in writing that this

2 file, like all the other files, is in the Prosecutor's office. I don't

3 know whether he was referring to 1997 or 1998.

4 Proceedings have also be brought in the high court in Mostar

5 against the former representative of the Office of the Interior of the

6 HZHB, the Croatian community of Herceg-Bosna. He has been charged under

7 command responsibility for all camps and prisons. And this person has

8 also been accused of the same crimes as my client, in Siroki Brijeg.

9 There is no mention of my client in this file relating to the events in

10 the Siroki Brijeg police station. Unfortunately, we have been unable to

11 get hold of this document. We are searching for it, and I hope we shall

12 have it before our opening statement. And then it will have to be

13 translated. As for this indictment, we are waiting for the translation,

14 and of course, when it is translated, I will submit it to Your Honours and

15 to my learned friends.

16 We have asked our learned friends -- today, we asked them for

17 information about this document, and the answer was that they are still

18 looking for it. If they find it, I hope it will be delivered to us.

19 Your Honours, apart from these parallel indictments, as we can see

20 in the grounds for the indictment and the witness summaries, nowhere --

21 although the counts are very specific. They mention the mosque, Ljubuski,

22 the school, names of witnesses. These witnesses made statements to the

23 investigating judge. They made statements at the trial. Because we have

24 a decision about a trial in absentia dated the 29th of May, 1996, so this

25 trial was conducted in absentia. And witnesses were examined. A

Page 8734

1 judgement was issued, which I unfortunately do not have. But in any case,

2 the witnesses testified.

3 When the translation of this document has been completed, you will

4 recognise the same witnesses who testified in this courtroom, and it will

5 be very interesting to compare the testimonies with the testimonies they

6 gave in Mostar. Had the Defence had this during its cross-examination,

7 their answers would certainly have been interesting. The Defence feels --

8 or the Defence believes that they did not mention my client during these

9 trials.

10 Furthermore, Your Honours, let me first explain the situation in

11 the high court in Mostar. In 1999, the court which was active on the east

12 side of Mostar and the court on the west side were joined into a single

13 court, today called the cantonal court. The Croats call it the high

14 court. It is actually the same court. And it is now in a building on the

15 west bank. The president of the court is a Croat, and the cantonal

16 prosecutor is a Bosniak. Cooperation between them is, to put it mildly,

17 as it was before 1995. Communication is limited. Nobody trusts anybody

18 else. When these courts were joined together, the same was done with

19 their archives. The Bosniak side did not put a single case record in the

20 joint archives, and they informed the president of the court in writing

21 that all the case files were in The Hague. After this, the president of

22 the court wrote to the OTP in The Hague, asking at least for copies so

23 that he could complete his archives, but he has not received an answer to

24 date. This brief introduction concerning the court in Mostar has been

25 presented so that I could explain to you what happened to me in Mostar.

Page 8735

1 We asked to inspect the archives of the Army of Bosnia and

2 Herzegovina. The minister of justice, whose name is Zvonko Mijan, and who

3 is a Croat, approved this and gave us permission so as to put us on an

4 equal footing with the counsel defending accused who are members of the

5 Bosniak people and who have free access. For this reason, access was also

6 approved for the defence of Mladen Naletilic. I will have this document

7 translated. Then he asked the prime minister to have this implemented

8 under his authority.

9 On the 13th of February, 2000, through the federal Ministry of

10 Justice, the deputy minister, Mr. Ferid Buljubasic informed me as follows:

11 "After consulting the Prosecution of the ICTY and inspecting the

12 documents regulating the operation of this International Tribunal, and the

13 procedure in cases such as this, we received a reply -- " and he's

14 referring to the OTP of this Tribunal -- "that the Rules of Procedure and

15 Evidence, IT-92 of the 30th of November, 1999 provides for a procedure

16 regarding information and documents necessary for the preparation of a

17 trial."

18 I will not read the whole letter to you, but they are referring me

19 to the court and telling me to ask for a subpoena. At the same time, the

20 Defence counsel defending Bosniak accused have free access. After this, I

21 applied to the presidency of the Bosnia and Herzegovina. At the moment,

22 this is chaired by a Croat, Joso Krusanovic, and he issued a decision

23 under the title of "Conclusion," ordering his subordinates to give me

24 access to the archives of Bosnia and Herzegovina and giving the same

25 approval to my colleague, Mr. Jonjic, who is the Defence counsel of

Page 8736

1 Pasko Ljubicic before this Tribunal. I have not received a reply to date,

2 and I am convinced that I will never get one. This is only one of the

3 problems I have come across. I think that we shall have ample for you to

4 hear all the evidence.

5 Your Honour, you know the importance of the archives of the Army

6 of Bosnia and Herzegovina, especially when you hear my opening statement

7 on Monday, which gives a completely different picture from the picture

8 presented by others, for various reasons. History cannot be falsified,

9 nor can it be given different interpretations through indictments. What

10 happened happened, and this is the evidence that will be presented by the

11 Defence, whatever it may be, because Your Honours, the Defence will bring

12 forward witnesses who have never been contacted by anyone so far, anyone

13 at all. And we shall present evidence. However, I will not now embark

14 upon my opening statement. The objectivity of those who are sitting at

15 this trial will be given an opportunity to come to the fore. Thank you

16 for your patience.

17 JUDGE LIU: Thank you.

18 Mr. Seric, do you have anything to add to the statement made by

19 your colleague?

20 MR. SERIC: [Interpretation] Your Honours, I don't have anything to

21 add to what my colleague Mr. Krsnik said. I would like to say, in

22 accordance with the agenda that you have presented, that we have submitted

23 to our colleagues from the OTP and to you, Your Honours, the number of

24 witnesses involved, first of all, with their initials and then with their

25 names and surnames. We have also provided brief summaries of their

Page 8737

1 statements. This number was 38, including Professor Doctor Josip Skavic,

2 who will be an expert witness. So the number would actually be 37.

3 Your Honour, I wanted to say this in line with the agenda, that we

4 were aware of the fact that perhaps this number just sounds bigger than

5 that that you had suggested to us as the right kind of number. However,

6 if you look at the timetable, if you look at the number of days involved,

7 you will see that we will not use up any more time if this number of

8 witnesses were to be 25 or 28, because then these witnesses would involve

9 a longer number of hours that the Defence would need with them. So this

10 number of witnesses, in the view of this Defence, believes that this

11 guarantees that we would use up approximately one working day, as was the

12 case during the Prosecution case, one working day per witness, and perhaps

13 we would be able to deal with even more than one witness per day. So I

14 think that the total we would use would be seven to eight weeks at the

15 most.

16 Thank you, Your Honours.

17 JUDGE LIU: Thank you.

18 Mr. Scott?

19 MR. SCOTT: May it please the Court. Your Honours, I would

20 respond to, I think, two of the more basic points and the ones that the

21 Chamber ordered us or directed the parties to respond to first, and then I

22 will come back to the number of, if I can say miscellaneous items, raised

23 by Mr. Krsnik.

24 I will start with the question about the depositions. First, it

25 is true that we met with Defence counsel today and discussed these

Page 8738

1 matters. I think it's also important to clarify the status of this issue

2 and the position of the respective parties. And by that I mean three

3 parties, not two. And that is, I've confirmed with Mr. Seric and Mr. Par

4 today that the Martinovic Defence does not propose or request any

5 deposition witnesses. So the issues -- I think this is interesting for

6 the Chamber in considering the positions of the Defence of Mr. Naletilic,

7 that apparently these issues, these very same issues, do not rise to the

8 same level of concern with the Defence of Mr. Martinovic.

9 The Prosecution position, Mr. President and Your Honours, on the

10 accused Tuta's proposal to take depositions is not new or surprising.

11 Indeed, this is a topic that has been discussed since last fall. The

12 Prosecution has consistently stated its position, both orally in court and

13 in our various filings since last fall and including in additional filings

14 in January and again more recently.

15 Rule 71, as you know, and this Chamber's prior rulings, require a

16 party to make specific showings in support of requests for depositions.

17 These, in fact, are indeed the same showings that the Prosecution was

18 required to make in proposing depositions in its case, showings that the

19 Prosecution in fact was required to make over Defence objections. The

20 Prosecution since last fall has repeatedly invited the Tuta Defence to

21 make these showings. The Prosecution respectfully submits that up to the

22 present time, including today, the Tuta Defence has provided no sufficient

23 information in support of the required showings.

24 The Trial Chamber itself, in fact, in its order in respect of

25 Defence filings dated the 12th of March, 2002 has ordered the Defence to,

Page 8739

1 and I quote, "file additional information about the witnesses they intend

2 to call." And indeed, as the Chamber knows, the Prosecution shares

3 serious concerns about the adequacy of the filings made by the Defence and

4 particularly by the Tuta Defence in recent weeks. The information is

5 indeed deficient for many purposes, including making the required showings

6 under Rule 71 and this Chamber's prior rulings. I have said to the

7 Defence many times and I have said to them again this morning that if and

8 when and at such time as they present us with sufficient information, we

9 will make further assessments about whether we believe in our view - of

10 course subject to the Chamber's determination - that any of the witnesses

11 are appropriate for deposition.

12 Let me further note the following on this: Directing the

13 Court's attention back to the Trial Chamber's decision on the

14 Prosecution's motion to take depositions -- that decision was dated the

15 10th of November, 2000, when the -- this Chamber was constituted

16 differently, and involving Judge Wald. Interesting to note -- interesting

17 to note that in that filings, when the Defence was opposing deposition,

18 the Chamber noted in that decision dated the 10th November that the

19 Defence position was that, "The interest of justice in this case requires

20 that all witnesses be heard directly by the fully constituted Trial

21 Chamber." Now, that's interesting because that was this Defence position

22 in November 2000, that all witnesses should be heard by this Trial

23 Chamber, when they objected to Prosecution depositions.

24 The Chamber went on to say, "Finding that the witnesses proposed

25 by the Prosecution are suitable witnesses to give evidence by way of

Page 8740

1 deposition -- " I won't read the entire order but very specifically, made

2 very specific findings on the proper testimony, why it was suitable, et

3 cetera, et cetera, and made specific rulings.

4 The Prosecution position on this has been that the Defence, no

5 different from the Prosecution, has to make the required showings. I

6 would also note a prior decision of this Chamber. It was a decision on

7 the Prosecutor's motion to take additional depositions for use at trial

8 dated the 5th of June, 2001. The Chamber may recall that before the

9 depositions started in July 2001, the Prosecution in fact, based on a

10 continuing assessment of its case, proposed to take additional depositions

11 at that time. This Trial Chamber denied the Prosecution's request because

12 in its view, the Trial Chamber was unable to determine whether the

13 witnesses were repetitive to an acceptable degree of testimony to be given

14 by live witnesses and whether they were so unduly repetitive that allowing

15 them to present evidence by deposition would unreasonably prolong the

16 proceedings. There again, the Chamber -- specific showings were made.

17 The Chamber made specific rulings, and in fact refused the witnesses

18 tendered by the Prosecution for depositions.

19 Thus -- and I summarise here on this point -- thus it is the

20 Prosecution's first basis of opposition to the depositions requested by

21 the Naletilic Defence that no showings have been provided, have been made,

22 and indeed let alone the showings, no appropriate or sufficient

23 information has been provided to the Prosecution to allow us to make any

24 informed judgements about whether any of that evidence would be acceptable

25 for deposition.

Page 8741

1 Second, as a separate matter, the Prosecution is opposed to taking

2 the depositions -- should the Chamber decide that any depositions are

3 appropriate, the Prosecution is opposed to taking the depositions in

4 Mostar or Sarajevo. We submit, Your Honours, that the proposals put

5 forward by the Tuta Defence, if accepted, would involve a substantial

6 shift in Tribunal practice and policy and would create a dangerous and

7 unfair situation, with one set of rules for the Prosecution and another

8 set of rules or practices for the Defence.

9 Under the Defence proposals, the logic of those proposals is this:

10 The Prosecution will always be faced with presenting its witnesses in The

11 Hague either by live testimony or deposition, but deposition if at all in

12 The Hague, with all the issues that that raises, as the Chamber knows -

13 excuse me - with the witness availability and a whole host of other

14 issues. By contrast, the Defence -- not only in this case, but by the

15 exact same logic in all cases, would always be in a more favourable

16 position of take depositions in the field. This would or could create at

17 least two disadvantages to the Prosecution or advantages to the Defence.

18 First of all, witness availability. This Chamber has heard extensive

19 evidence since the trial started about the difficulties with bringing

20 witnesses to The Hague. Nonetheless, the Prosecution did its best to meet

21 its burden and to bring witnesses here. If deposition or taking of

22 testimony was approved in Mostar, the Defence would be given a tremendous

23 advantage in calling witnesses who are not willing or able to come to The

24 Hague. The Prosecution would object to that.

25 Further, it also would affect the issues which we believe are very

Page 8742

1 important, and that is the questions of witness appearance and

2 credibility. Unlike the Prosecution witnesses, the Defence witnesses

3 would not be seen and heard directly by the Trial Chamber. And indeed

4 that goes back to the very language of the Defence itself, noted in the

5 Chamber's prior ruling that it was fundamentally important to justice that

6 all witnesses be seen and heard by the Judges themselves directly. That

7 is the Defence's own words.

8 There is also the danger that taking evidence away from The Hague

9 courtroom lowers the seriousness and the gravity which must attend the

10 taking and giving of evidence. Again, in this Chamber's own decision on

11 the Prosecutor's motion to take depositions dated the 10th of November,

12 2000, the -- the Chamber at that time noted the accused Martinovic's

13 position. And we have no quarrel with the Martinovic Defence at this

14 time. But nonetheless, the Martinovic's position at that time, and I

15 quote; this is from the Chamber's ruling of the 10th of November,

16 2000: "Depositions -- " excuse me. "Depositions taken away from the seat

17 of the Tribunal in the preparatory stages of the proceedings are less

18 reliable as the evidence is given in an informal environment, and the

19 witnesses may be subjected to pressure by local authorities." We submit,

20 Your Honour, respectfully, that those issues -- the very issues raised by

21 the Defence, are equally valid now.

22 We also note the issues concerning witnesses. Again, the Chamber

23 well knows, respectfully, that the issues that Mr. Krsnik has raised

24 concerning witnesses are not unique to his -- I shouldn't use that term.

25 The witnesses which the Defence would like to call, as it has been with

Page 8743

1 the witnesses that the Prosecution has called. Why would the Defence

2 witnesses receive more favourable treatment than the Prosecution

3 witnesses? And indeed, I must -- I must indicate to the Chamber, because

4 these proceedings are followed closely in Bosnia, this would affect the

5 Bosnian public's view and impression of the Tribunal. All of the

6 Prosecution witnesses who came to The Hague at considerable hardship, at

7 considerable personal expense, not covered by the types of expenses that

8 the Tribunal pays for, at considerable inconvenience to their families

9 might well ask and might well talk in their communities, "Why did we have

10 to go to The Hague and the Defence witnesses can stay in Mostar?" I

11 submit, respectfully, Your Honours, that would not be a favourable

12 impression to create to the international public or to the people in

13 Bosnia. "Why did we have to go to The Hague and the Defence witnesses can

14 stay in Mostar?" And it would even raise such a question, it would even

15 raise the issue of the location of the depositions even at a very micro

16 level. Indeed, as the Chamber has heard, would they be taken in East

17 Mostar or would they be taken in West Mostar?

18 The issue with expense, Your Honours, we are not convinced that

19 the taking of depositions in Mostar would be substantially financially

20 cheaper than testimony in The Hague and, in fact, the expense may well be

21 greater. It may well be greater. Substantial measures have to be put in

22 place and staff made available in the field, including a hearing officer,

23 a court clerk, a registry representative, court reporters, and

24 interpreters must be placed in the field. It may also indeed require

25 Victim Witness Unit involvement in coordination and security officers.

Page 8744

1 There is no indication -- there is simply no indication that there

2 is any significant financial saving at all, nor is there any particular

3 saving of time. In fact, as we all learned last July, the taking of the

4 deposition is just as intensive as trial. It is a huge effort. It is

5 exactly like being in trial. And if Your Honours will please forgive

6 me - and I mean this only with the greatest respect - the only persons

7 that it saves time for are the three Judges. And again, please, I mean no

8 disrespect by that. But all -- for the attorneys, for the parties, for

9 the court staff, for the reporters, for the interpreters, for everything

10 else, it requires at least the same amount of time. It would be even a

11 greater hardship to do that in Mostar.

12 Also, another concern would be security. Throughout the life of

13 this Tribunal, there have been many times when there have been proposals

14 for the Judges to go to Bosnia in the course of the proceedings, to take a

15 view, or to otherwise carry out or have whole proceedings in Bosnia. I

16 can't say that I can rule out the possibility that's ever -- that that's

17 never happened, but I don't think it has. And if it has happened, it's on

18 a very, very unique and isolated basis. And in fact, again, in this case,

19 in the Chamber's decision on the Defence motion for an on-site visit dated

20 the 5th of October, 2001, this Chamber made the following ruling:

21 "Considering that the Chamber, following consultation with the

22 security section of the Tribunal, is of the opinion that an on-site visit

23 at this stage is not advisable denies the motion." Now, again,

24 presumably, Your Honours, the Judges are not only concerned for their own

25 security and these very same security concerns would apply to the hearing

Page 8745

1 officer, the registry staff, the court reporters, the interpreters, and

2 others.

3 In sum, Mr. President, Your Honours, based on the information

4 provided to date, the Prosecution has no basis to agree to any of the

5 depositions are appropriate. And as we have indicated, we oppose the

6 taking of depositions in Mostar.

7 As to the 92 bis statements, our position is similar. The

8 Prosecution position on that, again as we've stated since last fall, is

9 that we have not been provided to date with sufficient information to make

10 any judgement on the propriety of any evidence being presented by way of

11 Rule 92 bis.

12 First, as with the depositions, Rule 92 bis expressly on its face

13 sets out a number of showings that have to be made and factors to be

14 considered in determining whether evidence is suitable for presentation

15 under Rule 92 bis. None of those showings have been made.

16 Further, no such statements, not even propose -- the proposed 92

17 bis statements, have been provided to the Prosecution. Indeed, Your

18 Honours, the Prosecution has not been provided to date with a single

19 Defence witness statement of any sort, of any sort, let alone under 92

20 bis. 92 bis (E) provides: "a party seeking to adduce a written statement

21 or transcript shall give fourteen days notice to the opposing party, who

22 may within seven days object. The Trial Chamber shall decide, after

23 hearing the parties, whether to admit the statement or transcript in whole

24 or in part and whether to require the witness to appear for

25 cross-examination." That means, in our interpretation, that the proposed

Page 8746

1 92 bis statements themselves must be tendered on at least 14 days notice

2 in order for the Prosecution to review them and express a judgement, or

3 express a view. We have no such statements, Mr. President. We've never

4 even been provided a statement. We have no idea what the proposed 92 bis

5 witness statements would consist of.

6 JUDGE LIU: Could I interrupt you at this moment?

7 MR. SCOTT: Of course.

8 JUDGE LIU: We'll discuss specific issues at a later stage. So I

9 believe that this matter will be brought up later on.

10 MR. SCOTT: Very well, Your Honour. I won't -- that concludes my

11 comments on 92 bis in any event.

12 Turning very quickly, Mr. President, to, as I said, various

13 miscellaneous matters. The defence has raised the question of safe

14 passage. Now, from what's been said today, apparently some motions have

15 been filed. That was the reference that was made. We have seen no such

16 motions. We're not aware of them or the basis for them. So if they're

17 not -- if they're ex parte, and we're not entitled to see them, well,

18 that's one thing. But we're not aware of the motion, so we're not very

19 well in a position to respond to them. However, I can say that we would

20 be surprised by a situation where the Prosecution would be required to

21 give some sort of carte blanche across-the-board safe passage to all

22 defence witnesses whether -- knowing what the situation of any particular

23 witness would be. We're simply not in a position to express any other

24 view on that at this time and have never seen, to our knowledge, such

25 motions. If I'm mistaken on that and they've been mixed in with some

Page 8747

1 other papers received, then I'm sure I'll be corrected.

2 Your Honour, the witness summaries, Mr. Krsnik touched on that,

3 and the Chamber knows from our filings, and it goes back again to what we

4 were just talking about concerning the Rule 71 depositions and the Rule 92

5 bis statements. We are not satisfied with the witness summaries. They do

6 not provide fair and adequate information. For the most part, they are

7 extremely generic. Many of them are of the nature - and I don't either

8 exaggerate at all, or if I do, by very little - when they say "witness

9 lived in Mostar during the war and will talk about relations between the

10 Croats and Muslims." Well, with all respect, Your Honours, that's not

11 very helpful. And all one has to do by comparison, and we invite the

12 Chamber to do so if you've not done so already, is to take the 65 ter

13 filings that the Prosecution made and put them side by side with the

14 Defence summaries, and the comparison will speak for itself.

15 Mr. Krsnik has indicated issues with translations. We are not

16 unsympathetic. I want to be clear about that, Your Honours. We are not

17 unsympathetic to the issues that translation presents for this

18 institution. All of us know that. You know that. But I must say, we are

19 extremely concerned to hear that 80 per cent of the exhibits are not

20 translated. We have no idea how the Prosecution can possibly receive the

21 Defence witness testimony and possibly prepare for cross-examination

22 without having the documents translated. I think that will rise to a very

23 major issue in a very short time, but I won't belabour it more at the

24 moment.

25 Two final points, or perhaps only one, Mr. President: the Mostar

Page 8748

1 court file. I have told Mr. Krsnik today, and I tell the Chamber the same

2 thing I told him: Ever since he made that request to us, we have made a

3 concerted effort throughout the OTP to find if in fact any such file is in

4 our possession. I can only represent to the Chamber that a number of

5 individuals and a number of person hours have been spent trying to locate

6 or, indeed, identify if we even have such a file. As of this moment, we

7 can locate no such file in the possession of the OTP. I have never seen

8 it, nor have I ever seen any indictment from the Mostar court dealing with

9 alleged crimes in Sovici. We will continue looking, and I can assure the

10 Chamber -- I hope the Chamber realises by now, given our past performance,

11 the past performance of the Prosecution, if we find such a file, it will

12 certainly be turned over.

13 Mr. President, I --

14 JUDGE CLARK: Can I just ask you on that point, are you saying the

15 file has never been in the OTP?

16 MR. SCOTT: We have no -- we have no record of having received

17 that file so far. But again, I'm continuing to look. As the Chamber may

18 know, there is a particular unit called "the rules of the road unit" that

19 receives domestic cases for review. We've checked with the records of

20 that unit. We've also checked with other records to determine if we can

21 find such a file or whether it is recorded anywhere as having come into

22 the OTP. And as of this moment, we can find no such record.

23 Thank you, Mr. President, Your Honours.

24 JUDGE LIU: Well, I've got a question to ask you. That is, have

25 you received the Defence counsel's motion as for the taking of depositions

Page 8749

1 which was filed on the 14th of March, 2002, in accordance with Rule 71? I

2 received this motion this morning.

3 MR. SCOTT: Yes, Your Honour, we have received it.

4 JUDGE LIU: We're expecting the written response from the

5 Prosecution side.

6 MR. SCOTT: Very well. Obviously, Your Honours, we'll do that. I

7 think the Chamber can be confident that the written response will track

8 the comments that I made to the Chamber a few minutes ago.

9 JUDGE LIU: Thank you very much.

10 And now other matters about those court's files. The Defence

11 counsel indicated that those files might involve some exculpatory evidence

12 which is beneficial to the Defence. I just want to remind you that you

13 are under the continued obligation to furnish all those informations about

14 the existence of this evidence. And at the same time, I would like to

15 tell the Defence counsel that if you need any assistance in this respect,

16 we are ready to help you in this respect, upon your request by the form of

17 a motion.

18 MR. SCOTT: Thank you.

19 JUDGE LIU: Yes, Mr. Krsnik.

20 MR. KRSNIK: [Interpretation] Your Honours, I did not intend to

21 speak long, but two brief sentences only. I wish to say only a few words

22 in respect of what the Prosecutor had to say. I really do not know what

23 my learned friend has in mind when he speaks about standards, especially

24 when he speaks about standards of summaries, when that was never adopted.

25 I really don't know what my learned friend, the Prosecutor, means when he

Page 8750

1 invokes the practice of this Court and some kind of extraordinary

2 circumstances.

3 Well, after all this, the Tribunal was founded seven years ago,

4 and it has been functioning for seven years now, and it's not something

5 that is carved in stone. It develops in the interest of justice. And it

6 is true, Your Honours, that we said it is in the interest of justice that

7 all witnesses be heard before the Trial Chamber. That is true. I still

8 assert that. That is why we asked why this Trial Chamber or a delegated

9 judge would not go to Mostar, to one single building of a united court for

10 both the east and west side of Mostar, in the interest of justice. The

11 houses are only 100 metres away. Everybody will be glad to come and say

12 what they have to say. And isn't that in the interest of justice and

13 fairness? Are we really going to be guided by the principle that the

14 Defence has an advantage because some witnesses didn't want to come?

15 Could my learned friend say to me, Your Honours, that the witnesses for

16 the Defence and the witnesses for the Prosecution are the same, that

17 they're in the same position? Well, indirectly, I have been told today -

18 and it's being repeated once again on account of safe passage - that I

19 will need -- well, that they are the ones who are really in charge. Our

20 list of witnesses is well known. Wouldn't it be only fair, professionally

21 fair, to say, "Okay, ask for safe passage for two, three, four, five of

22 these, and it won't be required for the rest?" Are we going to play games

23 as to who is better versed in procedure? And are we going to compete as

24 to who is going to present more truthful evidence here? So that the Trial

25 Chamber could get a full picture of what happened. It's not that

Page 8751

1 Bosnia-Herzegovina parachuted into this world in 1990.

2 Your Honours, indeed, after everything that the Defence went

3 through over the past seven months, we do have reasons to be bitter to a

4 certain extent; however, my professionalism does not allow me to become

5 prey of my motions. Also, when they asked me whether I'm going to call

6 character witnesses, am I going to call character witnesses: If truth and

7 facts will not help me win, why would I need someone who was going to

8 speak nicely about my client?

9 When I came to The Hague, I came with a big heart, an open heart,

10 that this is world justice that is being served here and this is the last

11 chance that my client has to be heard, and everything has to be presented

12 before this Court in the interest of the truth and justice, and that is

13 the only purpose. That is how I experience this, and I see that this

14 Trial Chamber shares the same views.

15 I don't want to go into further comments. I believe that you have

16 understood the core of my response to my learned friend the Prosecutor.

17 Thank you.

18 JUDGE LIU: Well, Mr. Krsnik, as the matter of the safe passage, I

19 think this Chamber will make the proper decisions in the due time, and it

20 is not the subject of debate at this moment.

21 As for the issue of the deposition, we'll take into the

22 consideration of the views you expressed, and we have plenty of time to

23 debate it later on. But at this moment, it's not the right time for you

24 to argue with the Prosecution.

25 Shall we come to the next issue, specific issue, that is, the

Page 8752

1 65 ter filings. Well, in the most recent filings, the Defence counsel for

2 Mr. Martinovic proposed the total number of 37 to 40 witnesses, including

3 two expert witnesses. No deposition on Rule 71 witness has been proposed.

4 Generally speaking, I have to say that I'm satisfied with your filings on

5 the list and summary of the testimony of the witnesses. The only problem

6 is the list of the witnesses is a little bit too long, as you explained to

7 us just now. In accordance with Rule 73 ter, this Trial Chamber could set

8 the number of the witnesses and shorten the estimated length of the

9 examination-in-chief of some witnesses, whatever is shorter. Taking into

10 consideration of the 57 witnesses in 69 days by the -- in the

11 Prosecution's case, in my personal view, 25 to 30 witnesses heard in the

12 court will be a reasonable number.

13 So Mr. Krsnik, would you please consider restructuring your

14 witness list by dividing them as witnesses in principal and witnesses in

15 reserve so that you may make the best use of the Rule 71 of deposition as

16 well as 92 bis for some witnesses in reserve. This is just a suggestion,

17 not an order.

18 Could I get a response from Mr. Seric.

19 MR. SERIC: [Interpretation] Your Honour, the Defence of Vinko

20 Martinovic has always abided by your decisions and shall continue to do so

21 in the future as well; however, in relation to the number of witnesses, at

22 first we had 120, and then we further eliminated some witnesses, and then

23 we had about 85, and we informed the Trial Chamber thereof. With the best

24 of will, with the best of intentions to make the proceedings as

25 efficacious as possible, I think that this number of witnesses is an

Page 8753

1 optimum number in order to truly bring these proceedings to a close

2 properly, not only in the views -- in the view of the Defence but we also

3 believe that in this way, the Trial Chamber will have obtained a complete

4 picture with regard to my client. These witnesses are not repetitious.

5 These witnesses are testifying with regard to different circumstances that

6 are very important for our defence case. However - however - perhaps we

7 can find a way to do something with a few of them, that is to say, as we

8 proceed, perhaps we could bring the number down further. But Your

9 Honours, in view of the timetable envisaged, I think that we really are

10 keeping abreast of what you have asked for. We have already proven this

11 through our submissions.

12 We do not have any proposal for depositions. I already said that.

13 Of course, I don't want to enter a debate with my learned friend the

14 Prosecutor now, but I am so sorry that he is holding our arguments against

15 Mr. Naletilic's defence. We are not in the same position.

16 Item number 3 of this agenda, we have no written statements. I

17 mean, I am moving further down the agenda, expert witnesses. Could I

18 perhaps speak again, or should I speak about it now?

19 JUDGE LIU: Well, later on, you'll have another chance. And I

20 appreciate that your statement, by saying that you'll do something with

21 few of your witnesses later on. We appreciate that.

22 As for the 65 ter filings filed by the Defence counsel of

23 Naletilic, I must confess that we have big problems with these filings.

24 During the Status Conference, this Trial Chamber mentioned three criteria

25 for the testimony of witnesses provided by the Defence which should be

Page 8754

1 served as kind of guidance. The first one, I remembered that it is very

2 clear that the Defence counsel do not have to prove your client is

3 innocent but you have to attack the evidence presented by the Prosecution

4 in its case. If the evidence presented by the Prosecutor is not

5 challenged, we probably will believe the matter is not at issue.

6 The second matter is the political debate is not allowed in this

7 trial. We may hear some testimonies on the background, but is it really

8 necessary for us to hear 14 trial witnesses testify on that issue? Some

9 of the repetitive witnesses could be heard through the deposition

10 procedure. The purpose of this Tribunal is to address the personal

11 criminal responsibility rather than the political issues in that area.

12 Thirdly, tu quoque defence is not acceptable in this trial. But

13 there are still some witnesses only testified on this issue, judging from

14 the summary you provided to us.

15 Well, unless you satisfy those standards set by this Trial

16 Chamber, it is very difficult for us to hear those witnesses.

17 Mr. Krsnik.

18 MR. KRSNIK: [Interpretation] Your Honours, we have come to the

19 crucial issue, as far as the Defence is concerned. We, the Defence, have

20 been thinking about this since the day we entered this courtroom. We have

21 been doing our best to adjust to the standards adopted here in terms of

22 time and the number of witnesses concerned, on the one hand, and on the

23 other hand, what we have to refute, that which has to be presented here as

24 the truth. Not a single one of my witnesses is being called for political

25 purposes or to illustrate the political situation. These are participants

Page 8755

1 in concrete events, and they are concretely challenging and denying the

2 charges made in the indictment.

3 For example, Witness number 1, who is a member of the presidency

4 of Bosnia-Herzegovina. Could we please move into private session, if

5 possible.

6 JUDGE LIU: Well, we'll go to the private session, please.

7 [Private session]

8 [redacted]

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7 [Open session]

8 MR. KRSNIK: [Interpretation] Your Honour, my -- I apologise. My

9 client has been charged with all the counts in the indictment, and I have

10 to challenge each count. It is nice to hear that the Defence does not

11 have to prove innocence, but we are forced to do this. It is up to us.

12 These witnesses should have been brought here by the OTP seven years ago.

13 The legal tradition I have been raised in tells me so; however, the

14 proceedings here are quite different from the proceedings in our

15 countries. Why do I have to bring some witnesses in? Because the OTP

16 never interviewed them, never bothered to look for them, never bothered to

17 bring them here. So it's up to the Defence. It's up to us, of course, to

18 challenge the evidence adduced here. And believe me, Your Honour, this is

19 the minimum number of witnesses. We can, of course, still alter the

20 number. And of course, we do have to count on acts of God, because we do

21 not know what time will bring. The newspapers will start writing about

22 this. There is a whole machinery, a whole hidden machinery, operating in

23 the background. These witnesses will not testify about politics but about

24 facts, about 80 per cent of the counts in the indictment, the villages of

25 Sovici. Everything else relates to general circumstances.

Page 8759

1 I wanted these witnesses to cover everything, both the facts and

2 the general background. Witness number 3, if you have him here, I think

3 can cover everything: the facts, the circumstances, documents he signed,

4 and so on and so forth. I have tried, Your Honour, to make the issues

5 clear to you, and I hope that you will grant my request, and I will always

6 consult Mr. Fourmy if there are any changes that need to be made, with

7 your leave, any alterations in the number of witnesses and so on, because

8 the witnesses are on their way already. Some of them are already on their

9 way. They're arriving tomorrow. It's very hard for me now to change

10 anything. But I will not keep you any longer. I do hope you have

11 understood my submission. Thank you.

12 JUDGE LIU: Well, Mr. Krsnik, we have already gone through all

13 those, you know, lists of the witness. At least judging from the

14 summaries you submitted, some of them will get us nowhere.

15 We don't want you to present your case at this moment to the

16 Prosecution, but there have to be some indications about the charges in

17 the indictment. To be a live witness, except those background witnesses,

18 what we want to hear is his personal knowledge of the involvement of your

19 client in the certain incidents charged in the indictment. We believe

20 that's the most important things for the defence of your case.

21 It seems to me during the two submissions - one is the 65 ter, and

22 another is the Rule 71 - you somehow got confused with each other. We

23 believe that some witnesses listed as the deposition witnesses should be

24 heard as a trial witness and some witnesses listed in the 65 ter list

25 should be deposition witnesses. And we'll discuss it when we come to the

Page 8760

1 next item.

2 JUDGE CLARK: It's not really a question, Mr. Krsnik. It's just

3 that I don't want you to think for a moment that we don't appreciate how

4 difficult it is to be Defence counsel and what a huge burden all of you

5 carry in a war crimes Tribunal case. But we just want to, without being

6 in any way offensive and without having you think that we don't recognise

7 the enormous efforts that you have gone to, to collate a list of very

8 important witnesses. We want to sort of direct you towards the specific

9 charges within the background as your client perceives it because

10 obviously there's another side to the story. We recognise that totally.

11 But what we're concerned about -- and as I said, this is not really a

12 question. What we're concerned about is that so much time is being spent

13 presenting the other side of a political argument which we recognise

14 already. We recognise from the questions you've raised and from the many

15 documents we've read that obviously there were issues in the early days of

16 the setting up of the Croatian community of Herceg-Bosna and the

17 recognition of the HVO as being the authority, the setting up of a civil

18 service. We're aware of that background and the umbrella of legality or

19 apparent legality at the time. But what we're concerned about is that you

20 should direct your energies and your skills towards responding to the

21 specific allegations that have been made by the witnesses for the

22 Prosecution and where we have already decided that you have a case to

23 meet. In other words, that if we accept what those witnesses say, then

24 your client is in trouble, if we say that. Now, it's up to you through

25 your witnesses to dispute that evidence. And that's what we'd like you to

Page 8761

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Page 8767

1 direct your main energies towards. So if we were to hear two or three or

2 four of your very best witnesses, the most articulate, the most educated,

3 in relation to the early days, the background, and obviously we can see

4 what direction you're going in, the reasons why so many Muslims were

5 detained at the beginning of conflict and during the conflict.

6 If you then direct your arguments to what your client has to meet,

7 that he's guilty of persecution -- sorry, that's the allegation that's

8 made, that he's guilty of persecution, of torture, of inhumane treatment.

9 And that's -- so direct your energies because your witness summaries don't

10 seem to give the impression to us at the moment that you're focussed

11 enough on that. Do you understand what we're saying? It's not a

12 criticism. We're trying to assist you, and we're also not being

13 patronising, either. I hope you realise that.

14 MR. KRSNIK: [Interpretation] Thank you, Your Honour. As always,

15 you are directing me in the right direction. Maybe it's because the

16 summaries have not been properly compiled. We are directing our energies

17 at disputing what is being charged against my client, and we are doing so

18 through these witnesses. I can now say that when the highest

19 representatives of the then-government testify, they will not know who my

20 client was, or rather, they will not know him personally. But when -- we

21 will bring other witnesses who will testify that it could not have been

22 him. So we have paid special attention to this. And all our witnesses

23 will testify precisely to what Your Honour has said. It is possible that

24 because I am so exhausted because I have been working so hard, up to 20

25 hours a day, that I may have confused some things. Some witnesses may be

Page 8768

1 more important than others. But I tried to have witnesses who can cover

2 many issues, not just one or two, so that we can make the best possible

3 use of them, while witnesses who -- for example, a witness testifying

4 about prisoners in Siroki Brijeg, these are witnesses who will testify

5 only for about 20 minutes, not for long, and their testimonies will be

6 very clear and short. They will say, "Yes, I was the person who was

7 there," and so on and so forth, and then I will hand them over to the

8 Prosecution for cross-examination. I will not waste time with these

9 witnesses.

10 These witnesses we would like to testify through depositions,

11 because then we can go through 20 witnesses in a very short time. But I

12 do agree with your suggestion, and I accept it, and I understand, I allow

13 for the fact that I may have confused some issues. Now I understand and

14 I will make some changes. I would need a break after the first few

15 witnesses so that I can change the order, because now arrangements have

16 already been made for the witnesses to come here.

17 I thank you, Your Honour.

18 JUDGE LIU: Yes. Yes, Mr. Seric.

19 But I've been asked to have a break, you know. If you will be

20 very concise, I'll let you go. Yes, please, Mr. Seric.

21 MR. SERIC: [Interpretation] Your Honour, very briefly. To avoid

22 giving the impression that the Defence of Vinko Martinovic is pretending

23 that we have nothing to do with witnesses that Mr. Krsnik intends to call

24 to begin with, they are common witnesses, and we support the comments made

25 by Mr. Krsnik. That's all I wanted to say. Thank you.

Page 8769

1 JUDGE LIU: Thank you very much.

2 Well, I'm afraid we have to take a break at this moment. We will

3 resume at ten past 4.00.

4 --- Recess taken at 3.49 p.m.

5 --- On resuming at 4.17 p.m.

6 JUDGE LIU: Well, before we start, I was reminded that the third

7 criteria for the Defence - I mentioned it just now - was not in the

8 transcript. I want to repeat that the Defence of the tu quoque is not

9 acceptable in this trial, just for the sake of the record.

10 The next issue is about the deposition, Rule 71. I believe that

11 this issue has been debated already. And there's just one point I want to

12 mention concerned with this matter, that is this Trial Chamber is seized

13 with a motion filed by Defence counsel of Mr. Naletilic dated 14th of

14 March, 2002, to take deposition for use at the trial per Rule 71. And as

15 I mentioned before, that we are expecting the response from the

16 Prosecution side.

17 I would like to make an initial response for the remarks made by

18 Mr. Krsnik just now. And I think we agree with you that the deposition

19 procedure will be judicially economic and will streamline the actual

20 trial. And in the interests of justice, your client is entitled to have a

21 fair and expeditious trial.

22 At this moment, I would like to remind the parties of a decision

23 made by this Trial Chamber, with different composition, on November 10th,

24 2000, on the Prosecutor's motion to take deposition for use at trial. The

25 Trial Chamber highlighted that the witnesses proposed for depositions will

Page 8770

1 not present eyewitness evidence directly implicating the accused in the

2 crimes charged, or alternatively, their evidence will be of repetitive

3 nature in the sense that many witnesses will give evidence of similar

4 facts. In light of this decision, we believe that some witnesses proposed

5 for deposition should be trial witnesses, since they have the firsthand

6 knowledge of the accused's involvement in the crime charged, and some of

7 the trial witnesses should be deposition witnesses, since their testimony

8 has nothing to do with the accused and is repetitive. In this sense, we

9 hope that the Defence could restructure the witnesses in both

10 categories.

11 Are there anything more to say on this subject? Yes, Mr. Scott.

12 MR. SCOTT: No, Your Honour. Not from the Prosecution side.

13 JUDGE LIU: Thank you.

14 Mr. Krsnik.

15 MR. KRSNIK: [Interpretation] No, Your Honour. Thank you.

16 JUDGE LIU: Thank you very much. Now we come to the next item.

17 That is the written statement submitted pursuant to Rule 92 bis of the

18 Rules.

19 Mr. Scott already mentioned his positions and his points of view

20 just now. We want to hear the response from Defence counsel on this

21 issue.

22 Yes, Mr. Krsnik.

23 MR. KRSNIK: [Interpretation] Thank you, Your Honour. We shall

24 certainly abide by the Rules of Procedure and Evidence, and we shall

25 disclose this 14 days before the witness is brought in. But we have

Page 8771

1 problems with the translation. We have identified priorities and have

2 drawn up a list of priorities for translation so that, I hope that with

3 the assistance of the Registry and all concerned, we shall succeed in

4 this. We shall certainly take care that any evidence we wish to present

5 is disclosed 14 days in advance.

6 JUDGE LIU: Thank you very much. We're satisfied with your

7 response and will instruct the registrar to do their utmost to have those

8 statements translated.

9 Yes, Mr. Krsnik.

10 MR. KRSNIK: [Interpretation] Your Honour, I do apologise. My

11 colleague has drawn my attention to five statements, or rather, a total of

12 seven which are being translated in the field and which will be certified

13 by a court in the field. And these shall be delivered to the Prosecution

14 on time. Thank you.

15 JUDGE LIU: Thank you very much.

16 JUDGE CLARK: Again, Mr. Krsnik, this doesn't really arise out of

17 what we were saying just now, but I had been thinking about it. And what

18 you told us about these parallel indictments, how did you come by this

19 information and, you know, when did you come by the information? It's

20 disturbing me a little bit.

21 MR. KRSNIK: [Interpretation] I will be pleased to answer your

22 question, Your Honour. Working with witnesses in the field in early

23 March, that is, some two weeks ago, a witness I was working with brought

24 me an indictment he had obtained, or rather, it was his indictment. It

25 was an indictment that he obtained through the Ministry of Justice of the

Page 8772

1 federation. And his name is mentioned on the indictment. He showed it to

2 me, and this was a shock for me. So I set out to investigate.

3 The other witness who has been indicted and is charged with crimes

4 connected to camps, I would like us to go into private session so I can

5 tell you the name.

6 JUDGE LIU: Yes. Well go to the private session, please.

7 [Private session]

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3 [Open session]

4 JUDGE LIU: The Trial Chamber wishes to inform the parties that it

5 would like to deal with the issue of protective measures in the same way

6 as it did for the Prosecution witnesses. Having noticed that the Defence

7 of Naletilic already indicated for most of the witnesses what protective

8 measures they will request, nevertheless the Chamber would like to remind

9 the parties that they should indicate as early as possible which

10 protective measures their witnesses wish to have.

11 If a witness requests closed session, an application should be

12 made in writing in advance. Requests for pseudonym and facial distortion

13 may be made orally before the respective witness testifies. With regard

14 to voice distortion, request must be made in advance, as the technical

15 person will need some time to organise the requested equipment. However,

16 again, such application may be made either orally or in writing. We

17 understand that there are some witnesses in the first ten witnesses list

18 will request the closed session. So we'll ask Defence counsel to submit a

19 motion for that, because we believe that, in principle, all the hearings

20 in this Tribunal should be public.

21 Are there anything to say by both parties on this very issue?

22 MR. SCOTT: No, Your Honour.

23 JUDGE LIU: Thank you.

24 Yes, Mr. Krznic.

25 MR. KRSNIK: No, Your Honour.

Page 8781

1 JUDGE LIU: Thank you, very much.

2 The next issue is exhibits. In our decisions on the pre-Defence

3 filings, the parties were asked to provide a list of their exhibits and to

4 coordinate with the registrar in relation to the pre-numbering issues. I

5 would like to draw the attention of both parties to the fact that the

6 registrar has already furnished us with a binder of the documents

7 concerned with the numbering of the exhibits, as well as the numbering of

8 the witnesses. We hope that the registrar will get into consultations

9 with the Defence in organising all those exhibits as well as to explain

10 how to use the numbering system.

11 Yes. Could I turn to the registrar, please. Yes.

12 THE REGISTRAR: Thank you, Mr. President. I just wanted to draw

13 everyone's attention that the bundle that I prepared for the parties today

14 has instructions and some general information that will help aid the

15 Defence counsel in preparing their case. I also attached the minutes from

16 the trial management meeting that was held on September 7th, 2001, which

17 also will give the Defence a chance to review some of the necessary things

18 needed.

19 And also, I prepared the completed Prosecution's exhibit list.

20 I'm meeting with the Defence again after this hearing to finalise

21 their exhibit list and how we're going to work that out, and that will be

22 provided to the Chamber, to the senior legal officer, and to the OTP as

23 soon as that is completed.

24 I also supplied them with the numbering of how the pseudonyms will

25 be and the witness sheet will be labelled. So we've covered just about

Page 8782

1 everything that you requested.

2 JUDGE LIU: Thank you very much, Madam.

3 Any comments on this issue?

4 MR. SCOTT: Mr. President, the Prosecution may have a couple of

5 more or less closing comments, if you will. One would touch on the

6 exhibits. But I can either make that particular comment now or I would

7 have a couple of comments that I would like to address to the Chamber at

8 the end, and I'm in the Court's hands.

9 JUDGE LIU: Well, if it's related to the exhibits, you may address

10 this issue. And we also have the last item is for the other issues,

11 miscellaneous matters.

12 MR. SCOTT: Okay. Well, Your Honour, the point is this, and it is

13 -- relates to the miscellaneous issues as well. As we indicated earlier,

14 we are very concerned, the Prosecution is very concerned, of course, about

15 the handling of the exhibits and translations of these items. The

16 Chamber's ruling on the 12th of March indicated that the

17 exhibit list would be filed -- an additional list of exhibits or indeed a

18 list of exhibits would be filed today. Of course, we have not yet seen

19 that. So we're very anxious to see -- have that filing, Your Honour, as

20 well as the additional filing which the Chamber ordered in the same order

21 for the additional information about witnesses. I'll leave that for now,

22 Your Honour. I'll leave my other remarks for a moment. Thank you.

23 JUDGE LIU: Could I hear the response from Defence counsel.

24 Yes, Mr. Krsnik.

25 MR. KRSNIK: [Interpretation] Your Honours, we have today filed our

Page 8783

1 list of exhibits, and I believe that the Prosecution will have this by the

2 end of the day or by tomorrow. We have abided by all your decisions, and

3 we have put on the list all of those that have been translated. And as

4 the translations come in, we are going to add these exhibits to the list,

5 because we have no reason not to do that. Thank you.

6 JUDGE LIU: Thank you very much. We appreciate that.

7 Yes, Mr. Par.

8 MR. PAR: [Interpretation] I would just like to say the following

9 in relation to the Martinovic defence and the documents. We have

10 presented our standpoint, which is quite similar. We have no documents.

11 We are going to use the documents that were used by the Prosecution. The

12 only documents that we have is the expert opinion of Dr. Skaric that has

13 been provided already in this case, and we have also announced that we

14 would perhaps carry out expertise of a particular Prosecution witness. We

15 haven't had appropriate documents yet that would lend itself to expertise.

16 In the meantime, we have received these documents, and we have submitted

17 this to the OTP and to the Trial Chamber. If we come into possession of

18 other documents that we might use during our Defence case, we are going to

19 provide them in timely fashion to the Prosecution. This is our standpoint

20 with regard to documents. Thank you.

21 JUDGE LIU: Yes. Yes, Mr. Krsnik.

22 MR. KRSNIK: [Interpretation] Your Honours, just an additional bit

23 of information. We also have a CD with maps. Different situations are

24 depicted in them: military situations, camps, refugee flows, et cetera.

25 There is a large number of them. We have had these CDs burned, to put it

Page 8784

1 in poplar terms, and these copies are being made. We will let the OTP

2 have copies as soon as possible. However, we have a problem with the

3 video. We agreed today that we can submit this videotape, although it

4 hasn't been translated yet. I'll have to work in concert with the video

5 unit. And I would like to say at this point in time that we will do our

6 best to provide our colleagues from the OTP with this in a timely manner.

7 Thank you.

8 JUDGE LIU: Yes, Mr. Seric.

9 MR. SERIC: [Interpretation] Thank you very much, Your Honour.

10 Just one point in relation to the exhibits that this Defence team is

11 compiling. We just have one request. I already mentioned this during the

12 Prosecution case. We have submitted this request to the office of the

13 president of the republic, and we were told that we should approach the

14 office for cooperation with the ICTY. We are seeking a presidential

15 transcript, especially after your ruling deciding on this, and we have not

16 received an answer until the present day. So this is the particular

17 exhibit that we are awaiting. If we do not receive this soon, Your

18 Honours, we shall address you yet again to seek your assistance so that we

19 could obtain this from the Croatian government, the Croatian state. Thank

20 you.

21 JUDGE LIU: Let me give the floor to Mr. Scott first.

22 Yes.

23 MR. SCOTT: Mr. President, just one comment and request to the

24 Chamber. I heard primarily Mr. Krsnik say a moment ago -- and perhaps it

25 applies to both Defence teams -- that documents would be added to the

Page 8785

1 exhibit list as documents were translated. Now, I have two comments on

2 that. That sounds to me like it's a moving exhibit list which will be

3 changed more or less at random, so we have no idea what the exhibit list

4 will look like ten days from now or three weeks from now because

5 apparently it will change over time. That's one concern.

6 The second concern is this: We would be anxious to have -- and we

7 only think it would be fair, even if the B/C/S documents can be provided

8 to us. It will come as no surprise and no secret that the OTP does have a

9 number of people on its staff who work and read in B/C/S. So even if

10 they're not translated, if the counsel could be so kind as to provide us

11 with those documents in a timely fashion so that we could prepare for

12 them, we can have people look at them, short of being -- short of the

13 translations coming in. So if I can be clear on that, Your Honours, I

14 don't think it's fair to the Prosecution for B/C/S documents to be held

15 back and not disclosed pending translation, when we'd be most anxious to

16 receive the B/C/S documents as soon as possible.

17 JUDGE CLARK: Mr. Scott, is what you're saying if I understand you

18 right, is that even if a document is not translated, that is no reason for

19 its identity not to be clearly specified on the list? In other words,

20 just because a document is awaiting translation doesn't mean that it

21 doesn't appear on the list. Every document appears on the list. The

22 translation comes later. Is that what you're saying?

23 MR. SCOTT: That exactly would be our position, Your Honour.

24 JUDGE CLARK: Okay. Well, that seems a very fair position to me.

25 JUDGE LIU: Yes, Mr. Krsnik.

Page 8786

1 MR. KRSNIK: [Interpretation] Your Honours, I believe there is a

2 misunderstanding. The Defence did not say that they would be changing the

3 list or adjusting the list. We are just tackling things in order. As

4 exhibits are translated, we are going to submit them. As for the list of

5 exhibits that have not been translated yet, we haven't made a list of this

6 nature.

7 In addition to that, you may remember, Your Honours, how much we

8 listened to our friend Mr. Scott with regard to the disclosure of

9 documents, that they are not duty-bound, that we are not duty-bound, et

10 cetera, et cetera. The Defence is not going to act that way. If the

11 gentleman would like to see the documents in the Croatian language, we

12 would only be too happy to provide them to him.

13 You will see, Your Honours, all the time we will be behaving in

14 such a way as to show that we are interested in nothing but bringing this

15 case to a close, to have everything heard that should be heard, and that

16 is the truth, namely, your ruling, and we are not interested in anything

17 else. Thank you.

18 JUDGE LIU: Thank you very much.

19 Yes, Mr. Scott.

20 MR. SCOTT: Your Honour, on that point, that requires a response.

21 That kind of a speech requires a very short response.

22 Mr. Krsnik says he's interested in nothing but justice. The

23 Prosecution has not received a single piece of disclosure at this point,

24 not a single witness statement, not a single exhibit. The Defence case

25 starts on Monday. And for counsel to stand up and say that he's only

Page 8787

1 interested in justice and everything coming out is inappropriate and

2 contrary to the way that the Defence is being conducted. And I apologise

3 for that comment, Your Honour, but I believe the response was necessary.

4 JUDGE LIU: Well, Mr. Scott, if you're reading the decisions on

5 the pre-Defence findings by this Trial Chamber, it says clearly that the

6 Defence counsel shall disclose the list of the exhibits, rather than the

7 documents themselves. They are under no obligation to disclose all those

8 materials they are going to use in their case. I think we should make a

9 very clear distinction between the two issues.

10 Another matter is there may be some more documents in the process

11 of the Defence case, and the list should be allowed to be amended and to

12 be added with more documents. But another matter I want to say is that

13 which is mainly directed to the Defence counsel of Martinovic. If you are

14 using the 17 binders of those documents, and before you present your case,

15 you have to inform the Chamber, the registrar, and the other party which

16 particular documents you are going to use at least one day before that.

17 We cannot bring all those 17 binders of documents in court.

18 Yes, Mr. Par. Do you want to make a response?

19 MR. PAR: [Interpretation] I only wish to confirm that this is

20 precisely the way in which we intend to use the documents. We will work

21 in the same way as the Prosecutor has. We shall do exactly what you have

22 said, and there will be no problems on our side. Thank you.

23 JUDGE LIU: Thank you very much.

24 Shall we turn to the next issue? That is the procedural matters

25 of the Defence case.

Page 8788

1 There's two questions we want to ask to the Defence counsel. As

2 Mr. Krsnik mentioned, that he will deliver opening statements before his

3 case. We wonder whether the Defence counsel for Mr. Martinovic will also

4 make an opening statement and when will that opening statement will be

5 delivered.

6 Yes, Mr. Seric.

7 MR. SERIC: [Interpretation] Your Honour, the defence of Vinko

8 Martinovic will give an opening statement but not on Monday. We shall

9 deliver it on a day to be determined by the Trial Chamber before we begin

10 the presentation of our case and the examination of our witnesses, that

11 is, at the beginning of our part of the defence case.

12 JUDGE LIU: Well, thank you very much for that.

13 Another matter is: Do the accused themselves wish to make a

14 unsworn statement in line with Rule 84 bis?

15 Mr. Krsnik.

16 MR. KRSNIK: [Interpretation] No, Your Honour. They will not avail

17 themselves of this right, as they stated at the beginning of this trial.

18 Thank you.

19 JUDGE LIU: Thank you.

20 Mr. Seric?

21 MR. SERIC: [Interpretation] Your Honour, at present, we shall not

22 avail ourselves of this right.

23 JUDGE LIU: Thank you very much.

24 [Trial Chamber confers].

25 If later on you change your mind on this very issue, please inform

Page 8789

1 the Trial Chamber of this matter.

2 Well, the last issue is dealing with other issues, that is,

3 miscellaneous matters.

4 Mr. Scott, just now you mentioned that you have something to say

5 on this subject. You have the floor.

6 MR. SCOTT: Thank you, Mr. President.

7 In the course of the last few comments, admittedly most of them

8 have been said. But a couple of things. Let me come back for a moment,

9 because there was a certain -- there was an exchange between counsel and

10 the Court and one item might have been clarified but there was a second

11 item which the Prosecution also is quite concerned about.

12 Mr. Krsnik has represented, and I believe his representation or

13 take it to be true that the witness list or some witness list has been

14 filed today, that it apparently hasn't made its way to us yet. There was

15 a second part, as the Chamber will know, of the 12th of March order, that

16 ordered "that the Defence file additional information about the witnesses

17 they intend to call," and that was also due. It was to be filed prior to

18 the pre-Defence conference on the 20th of March, 2002. So I'm also

19 concerned whether that additional submission has been made.

20 And while I raise that, Your Honour, to finish up and make the

21 comments that I told the Chamber I would request to make, Your Honour, we

22 continue to be very concerned that the various Defence filings - and I

23 want the record to be clear on this - that the various Defence filings are

24 inadequate to the Prosecution to reasonably prepare to meet the Defence

25 cases. We have stated that in our various filings, and we want to

Page 8790

1 reaffirm that at this point. I want to make a couple of examples, simply,

2 and I will do it very quickly. But in the supplemental Defence filings

3 for the accused Naletilic filed on the 15th of March, 2002 -- and we're

4 not going to mention names, so I don't think private session is necessary.

5 But on page 11, Witness J, this is the summary that's been provided to the

6 Prosecution.

7 Well, Your Honour, out of an abundance of caution, we'll go to

8 private session just to avoid the possibility that someone will say that

9 someone might be identified. The Chamber will --

10 JUDGE LIU: Well, I already have that, you know, documents at my

11 hands.

12 MR. SCOTT: Well, all right.

13 JUDGE LIU: You don't have to quote the contents.

14 MR. SCOTT: You're absolutely right, Your Honour. Of course

15 you're right.

16 I will just simply, for example, refer the Chamber to Witness J,

17 the summary, which is literally one sentence. I refer to Witness AB on

18 page 17, which is two sentences. I refer the Chamber to Witness AG, which

19 is on page 18, which is literally one sentence of the most generic

20 character.

21 Now, on top of that, unlike the situation with the Defence, when

22 we filed our 65 ter filings twice, first in 2000, a year before the trial

23 started, and again shortly before trial, not only did they have the

24 summaries, they had the witness statements. Mr. President, this is all we

25 have. We have no witness statements. We have in some instances two

Page 8791

1 sentences or one sentence of the most generic possible character. We

2 object to that. We want to state our objection. We do not believe that

3 that's fair that they're -- just as the Defence has rights, the

4 Prosecution has rights, as was recognised by the Chamber in the Aleksovski

5 case in its decision in February of 1999. The Prosecutor acts on behalf

6 of the international community, including the victims. The victims are

7 entitled to a fair trial. The international community is entitled to a

8 fair trial. And the filings that have been made by the Defence,

9 particularly the Naletilic Defence, are not adequate and it is not fair to

10 the Prosecutor or to the international community or to the victims. Thank

11 you.

12 JUDGE LIU: Yes, Mr. Krsnik. You have to be very concise.

13 MR. KRSNIK: [Interpretation] Of course, Your Honour. The Defence

14 of Mladen Naletilic respects the international community and is now

15 standing before a Tribunal set up by the international community. The

16 Defence of Mladen Naletilic has not taken any witness statements. All we

17 have are our notes.

18 The Prosecutor, Your Honour, seems not to understand the roles,

19 who is prosecuting and who is defending here. We have the Rules of

20 Procedure and Evidence and the Statute of this Tribunal. But today at our

21 meeting, I asked Mr. Scott personally something that had to do with the

22 objection he has just raised. I said to him, "Which statements do you

23 want us to expand, and we shall do it." And he didn't give me a reply at

24 our meeting. But now he keeps talking about the international community

25 and a fair trial. Maybe, just as I became confused about the witnesses --

Page 8792

1 I don't want to insult anyone because I deeply respect my learned friend

2 but he seems to have confused the roles of Prosecutor and Defence

3 counsel. If I have no statement, I cannot provide one. Thank you.

4 JUDGE LIU: Well, let me make some comments on the -- Mr. Scott's

5 statement. First of all, this Trial Chamber does not believe that Defence

6 counsel has any obligation to provide to the Prosecution with the previous

7 statement of potential witnesses.

8 Secondly, as for the specific informations or summaries in the 65

9 ter filings made by the Defence counsel, we agree with the comments

10 Mr. Scott made just now. We are not satisfied, as I mentioned before,

11 with those summaries. And we have already mentioned that when we came

12 across this issue earlier. That's why we made the decisions on the 12th

13 of March, requesting the Defence counsel to furnish additional information

14 or indications of the witnesses' testimony so that we could have some

15 guidance as to the testimony of that witness.

16 I believe Mr. Krsnik will do that, as required by this Trial

17 Chamber.

18 Another matter is that just now we have already mentioned, that

19 the Trial Chamber was seized of a request of the order of disclosure by

20 the Prosecution filed by the Defence of Naletilic on March 8th, 2002, in

21 which it was submitted that the Prosecution was in possession of

22 exculpatory evidence from the high court in Mostar. We would like to know

23 whether the Prosecution would like to respond to this request or not.

24 MR. SCOTT: May it please the Court, do you want me to respond to

25 it -- do you mean now, or would you like a written response? I believe

Page 8793

1 this is the matter that's already been addressed earlier today.

2 JUDGE LIU: Sure. We hope that it will be in the form of a

3 written response.

4 MR. SCOTT: Very well. Yes, thanks.

5 JUDGE LIU: Are there any matters that both parties would like to

6 raise at this stage?

7 MR. KRSNIK: [Interpretation] Your Honour, just one matter. When

8 can we have you know ex parte session, the one -- the hearing that the

9 Defence requested, because this is a very important question and we also

10 want to discuss the disclosure of witnesses for whom we have asked for

11 special protective measures, and we would like to get your decision on

12 this. Thank you.

13 JUDGE LIU: Well, I think we'll bring this matter with the other

14 members of this Bench and set a date as well as soon as possible, with the

15 consultations of the registrar. This is all I could do in response to

16 your question.

17 So having said that, I believe that's all for this pre-Defence

18 conference. We will rise and we'll see you next Monday.

19 --- Whereupon the hearing adjourned

20 at 5.15 p.m., to be reconvened on Monday,

21 the 25th day of March, 2002, at 9.00 a.m.

22

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