1 Tuesday, 28 September 2000
2 [Pre-Trial Conference]
3 [Open session]
4 --- Upon commencing at 3.04 p.m.
5 [The accused entered court]
6 JUDGE AGIUS: Yes. Registrar, could you call the case, please.
7 THE REGISTRAR: Good afternoon, Your Honours. Case number
8 IT-03-68-PT, the Prosecutor versus Naser Oric.
9 JUDGE AGIUS: Good afternoon, everybody. And welcome to this
10 Pre-Trial Conference. Mr. Oric, I want to make sure that you can follow
11 the proceedings in a language that you can understand. Are you receiving
12 interpretation in your own language?
13 THE ACCUSED: [Interpretation] Yes, Your Honour.
14 JUDGE AGIUS: Thank you. You may sit down. Proceed to
15 appearances. Appearances for the Prosecution.
16 MR. WUBBEN: Good afternoon, Your Honour. My name is --
17 THE INTERPRETER: Microphone, please.
18 MR. WUBBEN: Good afternoon, Your Honour. My name is Jan Wubben,
19 senior trial attorney, together with co-counsels Patricia Sellers and
20 Gramsci Di Fazio, and Ms. Joanne Richardson, and case manager Donnica
22 MS. VIDOVIC: [Interpretation] Good afternoon, Your Honour.
23 JUDGE AGIUS: Defence, yes.
24 MS. VIDOVIC: [Interpretation] Good afternoon, Your Honours. Good
25 afternoon, colleagues from the Prosecution. My name is Vasvija Vidovic,
1 and together with my colleague Mr. John Jones, I am representing Mr. Naser
2 Oric in this case. We're assisted today by our case manager, Mr. Geoff
3 Roberts, and our legal assistant, Ms. Jasmina Cosic.
4 JUDGE AGIUS: I thank you, and welcome once more. I'm just having
5 -- this is Trial Chamber III. I think my secretary has made a mess. The
6 problem when you have a good secretary is that they file everything for
7 you and I'm not used to that much of an organisation.
8 Let's proceed according to an agenda which I have prepared
9 beforehand. But before I do so, may I introduce myself and also my two
11 I will be presiding over this trial. My name is Carmel Agius. I
12 come from Malta. I was elected as a permanent member of this Tribunal way
13 back in March of 2001. I am the Presiding Judge of Trial Chamber II, and
14 that involves not just this trial, but several other cases which I don't
15 need to go into. I'm also chairman of the Rules Committee of this
16 Tribunal and member of the bureau of this Tribunal in my capacity as
17 Presiding Judge of Trial Chamber II. Last trial I presided over was the
18 Brdjanin case, which was decided on the 1st of September, which I'm sure
19 you are aware of.
20 To my right is Judge Hans Henrik Brydensholt, from Denmark. Judge
21 Brydensholt was elected as an ad litem Judge in 2001. He was educated at
22 the University of Copenhagen and in his early years he worked at the
23 Ministry of Justice, advancing effectively to become head of the criminal
24 law offices in the legal drafting department of Denmark. Between 1971 and
25 1980, Judge Brydensholt was the director general of the Danish prison and
1 probation service. Prior to his appointment as an ad litem Judge to this
2 Tribunal in 2001, Judge Brydensholt served as a high court Judge in
3 Denmark, from 1980 to 2002. It is a very considerable length of time.
4 Judge Brydensholt has, as part of the Danish assistant to developing
5 countries, continued to work as an advisor on the reorganisation of the
6 judicial systems in a number of countries. I mention in particular Uganda
7 and Mozambique. Throughout his career, Judge Brydensholt has served as
8 either chairman or member on numerous commissions and boards, some of
9 which are the following: He's chairman of the international study group
10 on prison management in Strasbourg in France, and that was in 1983. On
11 the Danish Institute of Holocaust and Genocide Studies; the Penal Reform
12 International, a very remarkable organisation, I must say, with which I am
13 familiar and have been familiar for the past 10 or 15 years; the Danish
14 Society of Criminal Law, which is again one of the best societies of
15 criminal law we have in the northern part of Europe; the Danish Helsinki
16 Committee and the Danish chapter of Transparency International.
17 To my left is my dear old friend Judge Albin Eser. We have known
18 each other for quite a long number of years. Judge Eser comes from
19 Germany, as I'm sure you are aware of. From 1954, when I was still a
20 little boy, until 1958, when I still had not even started my university
21 studies, Judge Eser had completed his law studies at the University of
22 Wurzburg, Tubingen, and the Free University of Berlin, continuing in 1961
23 until 1964 with his judiciary preparatory service in Wurzburg. Then in
24 1991, Judge Eser prepared his master of comparative jurisprudence at New
25 York University. President Meron suggests that this is the best choice
1 that he could make, and I agree. And then in 1992 he was promoted to
2 Doctor Luris Utriusque at the University of Wurzburg.
3 Prior to his appointment as an ad litem Judge for the ICTY, Judge
4 Eser held the position of director of the Max Planck, very well known and
5 very important, Max Planck Institute for Foreign and International
6 Criminal Law in Freiberg. Since 1982. While at the Max Planck Institute,
7 Judge Eser was also vice-president of the German Research Foundation, and
8 that's between 1991 and 1994, and chairman of the humanities and social
9 sciences section of the Max Planck Society from 1994 to 1997.
10 Between 1971 and 1988, Judge Eser was an Associate Judge of the
11 Upper State Court in Westfalia and Stuttgart Baden-Wurttemberg, serving
12 respectively as a member of the Fifth and Third Senate for Criminal
13 Affairs. In 1995 and 1996, Judge Eser was a co-initiator of a committee
14 of experts which prepared an alternative draft to the draft Statute of the
15 -- for the International Criminal Court. In our circle we refer to it as
16 the Syracuse-Freiberg draft, and in 1998 he participated in the
17 negotiations on the structure of the International Criminal Court in Rome
18 as a member of the German delegation to the UN diplomatic conference.
19 And that's not the only place where we met, Judge Eser and myself.
20 Judge Eser has a number of distinctions which include, amongst others,
21 honorary degree from -- of Doctor of HC would be Honorus Causa. Doctor
22 Honorus Causa from Waseda University, Tokyo, Japan. The university medal
23 of Warsaw University, the honorary degree Honorus Causa from the
24 Universidad Peruana Los Andes, from Peru; honorary member of the Hungarian
25 Academy of Science, Budapest; and honorary member of the Japanese Society
1 for Criminal Law; plus last but not least, he is also -- he's got an
2 Honorus Causa doctorate from the Jagiellon University of Krakow in Poland.
3 So I suppose I have put your mind at rest that you are in good
4 company. And that augers well for this trial. I propose that we try and
5 move straight to the agenda that we have.
6 Today the understanding is that if we don't conclude today, we
7 will continue tomorrow. But I'm sure that, with your cooperation, we
8 should be able to conclude today. Please feel free to discuss whatever we
9 have on the agenda as thoroughly as possible, and don't have the least
10 concern for going into tomorrow if need be. It's not a problem with us.
11 We are prepared for it. The important thing is that we cover as much
12 territory as we can today so that on the 6th of October we can proceed
13 with the case in a smooth manner, with the least possible hangovers.
14 Now, as you are aware, we are new to this case; not just Judge
15 Brydensholt and Judge Eser, but also myself. I knew I was going to be in
16 charge of this case way back in March of this year, and I thought of
17 preparing myself for this case way back in April or May of this year, but
18 basically, this case was officially transferred to Trial Chamber II only a
19 few days ago, as you are aware. Until then, it was in the charge of Trial
20 Chamber III, which we have consulted and from whom we have had a status
21 report before we started preparing ourselves for this trial.
22 The purpose of the Pre-Trial Conference, and I know that,
23 Mr. Wubben, you and your team, and you, madam, you and your team, you are
24 fully aware of what the purpose of the Pre-Trial Conference is, but there
25 are members in the gallery who maybe are not, and also I want to make sure
1 that your client is made aware of this. The purpose of the Pre-Trial
2 Conference is what is actually envisaged in Rule 73 bis (A) in our Rules
3 of Procedure and Evidence, which imposes responsibility on the Trial
4 Chamber to hold such a conference in preparation of the trial.
5 Basically, for general information, is the purpose of a Pre-Trial
6 Conference is to make sure that the parties are indeed ready for trial.
7 It's a sequel to the work that the pre-trial Chamber would have carried
8 out in preparation of the trial. This is supposed to crown it all, to
9 take stock of the situation, and then decide whether we are in a position
10 to proceed to trial, which I hope we are.
11 In preparation of this Pre-Trial Conference, I gave instructions
12 to the Senior Legal Officer of Trial Chamber II, Mr. Von Hebel, to convene
13 a 65 ter meeting with the parties, which was convened on the 22nd of
14 September. I discussed, of course, with Mr. Von Hebel the agenda for that
15 meeting. I left the meeting entirely in his hands, trusting him a hundred
16 per cent and knowing that he has done this so efficiently in the past.
17 And of course, after the meeting I, together with Judge Brydensholt and
18 Judge Eser, we have had consultative meetings with Mr. Von Hebel and other
19 members of the staff that were present. They briefed us on what took
20 place on the proceedings in the course of the 65 ter meeting, and today we
21 will be discussing some of the leftovers of that 65 ter conference and
22 also other issues that he was not able to cover because of the time
23 restrictions that he had, and also because of developments that have
24 arisen since then, particularly in the wake of some motions that have been
25 presented, filed by both the Prosecution and the Defence. When I say
1 motions, I'm also including responses to motions.
2 Well, these are pleasures yet to come. We'll deal with them as we
3 go along.
4 I think that, to put our priorities right, I would suggest that we
5 start with one of the latest motions forthcoming from the Prosecution.
6 You had prior notice of this during the 65 ter meeting. And I'm referring
7 to the Prosecution's motion seeking leave to amend the indictment. The
8 motion was filed last week before the end of business for that week.
9 Briefly speaking, although I know, of course, that you are aware
10 of what this motion is all about, but the members of the public aren't,
11 and I don't know if your client is aware. The Prosecution is seeking
12 leave to amend the indictment in two ways. Firstly, by seeking to remove
13 all factual allegations pertaining to the village of Rupovo Brdo, and thus
14 essentially remove paragraph 30 and strike off reference to Rupovo Brdo
15 from paragraph 36 of the indictment. That's the first amendment that is
16 being sought by the Prosecution.
17 The second amendment, which is more of a radical one, is that they
18 are now pleading an armed conflict, rather than an international armed
19 conflict, throughout the entire indictment where that is applicable.
20 Basically, this means that paragraph 20 of the indictment will now read,
21 if the motion is granted, that: "A state of armed conflict existed on the
22 territory of Bosnia and Herzegovina," instead of the current version of
23 the indictment, which reads: "A state of international armed conflict and
24 partial occupation existed on the territory of Bosnia and Herzegovina."
25 The latter proposed change, according to the Prosecution motion,
12 Blank page inserted to ensure the pagination between the English and
13 French transcripts correspond
1 is said to be in accordance with the submissions in the Prosecution
2 pre-trial brief.
3 Now, I say this subject to correction, and that's because I have
4 been out of this building from a quarter past 12.00 until about 15 minutes
5 before we started this sitting. But as far as I know, the Defence has not
6 yet filed a response to this Prosecution motion.
7 Naturally, there are two options. You know that according to the
8 Rules, you are entitled to a time limit within which to file a response.
9 On the other hand, we have discussed, Judge Brydensholt and Judge Eser and
10 myself, of the various options. And we are going to tell you what our
11 preference is. Then you can either come along or you can reserve your
12 right to ask for a time limit within which to reply. I'll explain myself
13 very briefly.
14 Our desire, our wish is that when we come to the 6th of October,
15 that is, when we come to the commencement of the trial proper, we will
16 have this matter solved, decided. We can't force it on you. I mean, you
17 have a right to a time limit. We have discussed it amongst ourselves and
18 see what the implications are. We will not, of course, pronounce
19 ourselves on what we think are the implications involved in the suggested
20 amendments. But I would like to know whether at this point in time you
21 are prepared to mark time and ask for time and then file a proper, formal
22 response. In that case, we may abridge the time limit to meet our desire.
23 Or whether you would like to stand up and say we agree, we don't agree, or
24 whatever. In which case we can pronounce our decision here and now, to be
25 followed by a short written decision later on, which in this case is a
1 formality which I would recommend. Yes.
2 MR. JONES: Yes. Thank you, Your Honour. Indeed I think it would
3 assist the Chamber to tell you that we don't oppose the motion and we
4 didn't intend to file a formal response. It's also our position that it
5 wouldn't be necessary to re-arraign the accused on the new indictment
6 because there's no substantive difference.
7 JUDGE AGIUS: I thank you for that. I think -- Mr. Jones, I think
8 it's the way to start this trial. I fully commend it and I fully agree.
9 There is another matter that I would raise in the wake of amending
10 the Statute. It's a mere formality, but it's obvious that you will be
11 charged with amending the Statute. I'd like you to refer to paragraph 5
12 of the indictment, and particularly in the part which reads: "On the 20th
13 of May, 1992, members of the Srebrenica Crisis Staff" and then in brackets
14 "(or members of the Srebrenica TO) appointed Naser Oric as the commander."
15 Sorry. I mean the indictment as it is now reads: "On the 20th of May,
16 1992, members of the Crisis Staff of the TO Srebrenica appointed Naser
17 Oric." I think it would be more correct to redraft that to read: "On the
18 20th of May, 1992, members of the Srebrenica Crisis Staff (or members of
19 the Srebrenica TO) appointed Naser Oric as the commander."
20 I'm going to leave this entirely to you. I've come to this after
21 reading your pre-trial brief. Because in the pre-trial brief itself, the
22 appointment of Naser Oric doesn't seem to have been reached by the Crisis
23 Staff of the TO Srebrenica but by the Crisis Staff of the -- by the
24 Srebrenica Crisis Staff or the members of the Srebrenica TO. I mean, this
25 is just to tie it up with the pre-trial brief. Anyway, when we are going
1 to hand down an oral decision now, granting your motion to amend the
2 indictment. Please take into consideration also our recommendation. Feel
3 free to endorse it or not to endorse it. It's something that we are not
4 insisting upon. It is something that we are pointing out to you.
5 [Trial Chamber confers]
6 JUDGE AGIUS: So as I hinted at earlier, the Trial Chamber, with
7 regard to the motion filed by the Prosecution on the 23rd of September,
8 seeking leave to amend the indictment, as explained to me earlier on, that
9 is, firstly by removing all factual allegations pertaining to the village
10 of Rupovo Brdo and thus remove paragraph 30 and strike off reference to
11 Rupovo Brdo from paragraph 36 of the indictment. And third, amending the
12 indictment by pleading an armed conflict rather than "an international
13 armed conflict," and particularly with regard to paragraph 20 of the
14 indictment, which should now read that "a state of armed conflict existed
15 on the territory of Bosnia and Herzegovina" instead of the previous text,
16 "a state of international armed conflict and partial occupation existed
17 on the territory of Bosnia and Herzegovina," hereby grants the motion. A
18 written version of this oral decision will be handed down, will be filed
19 with the Registry of this Tribunal in due course.
20 So that sorts out the first question, the first problem that we
21 have. And in granting this motion, may I just for the record just confirm
22 that we had discussed this eventuality amongst ourselves in Chambers, and
23 in preparing ourselves for this eventuality, that is granting this motion
24 orally, we had taken into consideration the requirements of Rule 50 of the
25 Rules of Procedure and Evidence, insofar as it requires the Trial Chamber
1 to ensure that the charges, that the counts which remain unchanged are
2 actually based on facts which present a prima facie basis.
3 There is now another matter that possibly will engage us for some
4 time. There is a motion filed by the Defence on the 10th of September,
5 2004, regarding Rule 68 disclosure, which has been passed on to this Trial
6 Chamber by Trial Chamber III, as you are aware. There was a Scheduling
7 Order that I'm sure you are aware of. Trial Chamber III decided, very
8 rightly, that this should be a matter which should be discussed before
9 this Trial Chamber, which was going to be seized of the case. And so now
10 I am going to introduce this motion for discussion.
11 On the 10th of September, 2004, basically the Defence complained
12 that they were not entirely happy with various aspects of disclosure, but
13 for the time being, I'm restricting the debate to Rule 68 disclosure. And
14 in particular, they requested the Trial Chamber to order the Prosecution
15 to produce a schedule of material collected in the Oric investigations and
16 to indicate, in relation to each item, whether it considered exculpatory
17 material or not, in accordance with Rule 68.
18 As I said, the background to this specific, not entirely unusual,
19 request - I explained to my colleagues this morning that I encountered
20 such a request also in the Brdjanin case and also in some other cases -
21 the background rests on a number of specified complaints which were in
22 effect discussed amongst you with my Senior Legal Officer, Mr. Von Hebel,
23 during the 65 ter meeting.
24 Now, you were told last Wednesday, when you had the 65 ter
25 meeting, that in the wake of the discussion, the Prosecution undertook to
1 file a response to your motion by Friday. The response was filed late on
2 Friday. I first want to make sure that it has been served on you, that
3 you are fully aware of its contents.
4 MR. JONES: Yes, it has, Your Honour, and we've had the
5 opportunity to read it and are in a position to provide a reply if need
7 JUDGE AGIUS: That's perfect. So we will -- we will proceed to my
8 first question. I'm fully aware that the response may not cover the
9 entire list of complaints that you had with regard to Rule 68, and I would
10 invite you to leave out for the moment the Banja Luka collection. Please
11 don't involve it, include it in this category of complaints. I would also
12 like you to leave out for the time being the Vlasenica documents that you
13 have asked, and concentrate on the rest, which is the essence of the
14 complaints that you had in your motion of the 10th of September.
15 In the wake of the response that has been forthcoming from the
16 Prosecution, dated last Friday -- it's okay. In the wake of the response
17 that has been forthcoming from Mr. Wubben and his colleagues last Friday,
18 do you insist on your request that the Trial Chamber orders the
19 Prosecution to produce this entire schedule of material and indicate
20 against each item whether it is considered exculpatory or not, or do you
21 want to be more practical, forget about this, and we try and deal with the
22 various complaints and any other complaints that you may have as we go
24 MR. JONES: Thank you, Your Honour. In essence, we do maintain
25 our motion. As to the suggested remedy of essentially a schedule being
1 produced and a declaration by the investigator that all matters have been
2 considered in relation to Rule 68, that was one proposal. There may be
3 other ways of dealing with the problem. But our objection does remain and
4 I can reply briefly as to why we maintain it, notwithstanding the
5 Prosecution response.
6 JUDGE AGIUS: Can we take them one by one.
7 MR. JONES: Certainly.
8 JUDGE AGIUS: And I can address them straight away. Vlasenica I'm
9 going to leave until the very end, because I would first refer to the
10 Prosecution to see what their position is. But they seem to have provided
11 some kind of reply. When I say "some kind of reply," I don't mean to
12 minimise or denigrate your reply, I'm just presenting myself and the
13 position of the other two Judges as a noncommittal one. Okay. So we'll
14 start to understand the common language as we go along, because that
15 becomes very important.
16 With regard to Hasanovic and Suljic, are you happy with the
17 explanation that the Prosecution have provided in their response?
18 MR. JONES: No. No, Your Honour. And if I may, the point of our
19 motion was we provided an illustrative list of examples where we say that
20 there had been failure to comply with Rule 68, in order to indicate what
21 we say is systemic failure. And so to that extent, the fact that certain
22 of these items have now been disclosed doesn't go to the heart of the
23 issue. But if I can still take matters one by one. I can start with
24 Dr. Hasanovic's statement.
25 The Prosecution reply in paragraph 6 of their response, I don't
1 know if Your Honour has --
2 JUDGE AGIUS: Yes, yes.
3 MR. JONES: -- their point of view.
4 JUDGE AGIUS: I can assure you, I've got all the documents here.
5 MR. JONES: First, Your Honour, the Prosecution asserts that there
6 was a 16-day period between our request and the material being disclosed.
7 In fact, if Your Honour turns to Annex 1, which is there cited, which
8 refers to our letter of 21st of July, it's in fact apparent from the face
9 of that that we had already requested material in a letter of the 28th of
10 May, 2004. And indeed, I have that letter in front of me and it does
11 indeed refer to Dr. Hasanovic. I apologise I don't have copies, but it's
12 apparent from the face of that letter that the delay is not 16 days but
13 more than two months. That's just to correct that inaccuracy.
14 The main point is that we had to request this statement of
15 Dr. Hasanovic. That's the essence of our complaint. The statement was
16 taken by the Prosecutor on the 6th and 7th of March, 2004.
17 I'm going slowly for the interpreters, as I've been warned to do.
18 That statement was taken by the OTP investigator, Mr. Nasir, B. H.
19 Nasir. So our question is why, when the investigator took this statement
20 in which there was a clear indication that there were documents which may
21 have been falsified, where there was clearly exculpatory material
22 regarding the question of command and control, why he didn't immediately
23 upon returning to The Hague inform the trial attorney that this material
24 existed and had to be disclosed to the Defence. That's the question
25 which, in our submission, needs to be addressed.
12 Blank page inserted to ensure the pagination between the English and
13 French transcripts correspond
1 The question of prejudice isn't resolved simply by saying, well,
2 now you have the document, so there's no prejudice. And firstly, if we
3 hadn't asked for it, presumably we wouldn't have got it. That's a sort of
4 prejudice. And it has been a delay of more than two months in receiving
5 this statement.
6 The same remarks apply to Mr. Suljic, the witness mentioned in
7 paragraph 7 of the Prosecution response. Again, a statement was taken by
8 the investigators on the 3rd of November, 2002, by Daniel Perry. And
9 again, why did he not return to The Hague and say: This tends to cast
10 doubt on Prosecution evidence and should be disclosed to the Defence?
11 It's that systemic failure which we complain of. The main point is that
12 these requests, or some of them, have been made pursuant to Rule 66(B).
13 But Rule 66(B) is our initiative; Rule 68 is their duty. And we say
14 they're not doing their job under Rule 68.
15 And certainly if, pursuant to Rule 66(B), we ask for lots of
16 statements, then chances are, if we're lucky, we'll get a certain amount
17 of exculpatory material. But the chances are that we'll only ever get a
18 percentage, because we're shooting in the dark. We don't know what they
19 have. And that's not how the Rules are meant to function. Rule 68 means
20 that the Prosecutor should be actively searching out this material rather
21 than merely reacting to our requests.
22 This is related to the issue of authentification [sic],
24 JUDGE AGIUS: Mr. Jones, we'll come to authenticity later. So try
25 to concentrate on your complaints under Rule 68 for the time being. And
1 particularly to what we are -- we have been made aware of, and that's
2 Hasanovic, Suljic, Bijelanovic, Djukic, the CD on the Kravica -- attack on
3 Kravica, and finally, Vlasenica, which is in a category of its own, which
4 I'm sure can be handled separately.
5 MR. JONES: Certainly. I'm obliged, Your Honour. I didn't
6 propose to enter into the question of authenticity in detail.
7 JUDGE AGIUS: Later we'll come to that.
8 MR. JONES: Okay. It's just that that's a matter which arises
9 from their response as to when the issue became live. So I don't know if
10 I could address that very briefly.
11 JUDGE AGIUS: Very briefly, yes, you can, but let's not waste time
12 on it.
13 MR. JONES: Certainly. I will be brief, Your Honour. I do think
14 it has to be seen in context, because the Prosecution say, at paragraph 10
15 of their response, that the issue of authenticity only arose at the 65 ter
16 conference on the 28th of July, 2003. In fact, that was very early in the
17 pre-trial stage. But if one would just turn to that Pre-Trial Conference,
18 it's Annex 3 -- I don't know if Your Honour has that.
19 JUDGE AGIUS: Yes.
20 MR. JONES: If you see the remarks there which I made on that
21 occasion, I'll just quote very briefly. I say: "It also relates to Rule
22 68 disclosure of exculpatory materials.
23 MR. DI FAZIO: Could we have the page, please.
24 MR. JONES: My apologies. It's page 3571 at the top, and page
25 40. And I said that we wanted to ask the Prosecution to really consider
1 seriously this issue that has come to our attention that certain documents
2 may have been, may have been forged, and for the Prosecution to review
3 that very carefully, and if they have any -- anything which suggests the
4 documents indeed may not be authentic, that they disclose that to us as
5 part of the Rule 68 disclosure.
6 So in essence, that's a specific request for the Prosecution to
7 pay particular regard to authenticity and to disclose to us anything which
8 suggests the documents aren't authentic. Now, that's what I said on the
9 28th of July, 2003. I would say that's a very specific, emphatic request.
10 And yet still we didn't receive these materials of Suljic until two months
11 later, because we asked for it.
12 Now, Your Honour, I'll move on to the other matter, the Kravica
13 CD. The response of the Prosecution firstly was that that wasn't a breach
14 of Rule 68. We didn't say it was in our motion. If you look at paragraph
15 17 of our motion, we said it was further non-disclosure.
16 JUDGE AGIUS: I want to clear this up, particularly with regard
17 this CD. Because you need to be on the same wavelength, and we need to be
18 on the same wavelength with both of you. What are we talking about?
19 Because you seem to be at cross-purposes here. I looked at the
20 correspondence that was exchanged between you and the Prosecution
21 regarding the disclosure of a CD. For the second time -- I need to find
22 it here, but there was -- this CD was disclosed, according to the
23 Prosecution, twice. And it is described in the document that accompanied
24 the disclosure. I remember that it is Annex 16 -- Annex 17. It is
25 described as of Serbian origin. It is described as of Serbian origin,
1 more or less as is being maintained now in the Prosecution response,
2 namely, they are telling you: We never really had a CD about an attack on
3 Kravica village, but we had a Serbian -- what is allegedly a Serbian video
4 of an attack on the village of Kravica on a particular date.
5 So I want to know whether you are at the same wavelength, whether
6 you're talking about the same thing or whether you're talking of two
7 different -- because as I read you, you're expecting something different.
8 They are expecting to have given you what they said they would be giving
9 you in the first place.
10 MR. JONES: Well, Your Honour, first in terms of the distinction
11 between a video-recording of the attack on Kravica and a Serb TV video
12 review of a Muslim attack on Kravica, I'm not entirely sure of what the
13 difference is between those two things. In any event, I think perhaps it
14 isn't something we need detain the Chamber for too long, because we did
15 have a meeting with the Prosecution on this matter. The basic
16 misunderstanding, if it is such, is that we continue to receive a CD which
17 doesn't have anything showing an attack on Kravica, either an attack as is
18 described in that paragraph or a review Serb TV video review. We have
20 JUDGE AGIUS: To be honest with you, I tried to get into this and
21 see if I could understand. Because in your response, you refer the Trial
22 Chamber also to annex number 16. It's Annex 16 and Annex 17. Now, Annex
23 17 does address this event, this supposed -- the attack on Kravica. But
24 Annex 16 apparently does not. I mean, at least from what I could read,
25 does not really address that particular event. We have a barbecue there,
1 we have surgical amputation of a leg, we have a few other things that have
2 got absolutely nothing to do with the attack on Kravica. So that's why I
3 said we need to be on the same wavelength, otherwise we won't be able to
4 help you.
5 MR. JONES: If it assists, in our last meeting with the
6 Prosecution, Mr. Di Fazio was going to personally view the CD.
7 MR. DI FAZIO: If Your Honours please, and if I can assist you and
8 my learned friend, I agree with Mr. Jones that to a certain extent this
9 issue is well on the way to resolving itself. I think the problem has
10 arisen in that the CD contains a lot of other material other than the
11 attack on Kravica. At our last meeting, I assured the Defence that I
12 would go through the CD, ensure that the CD that was sent to them is
13 precisely the same CD that we rely upon and that we claim is the exhibit.
14 I haven't yet finished that exercise. It's unfortunately a bit longer
15 than I thought it was to sit down and review the CD. But I respectfully
16 suggest -- I'm pretty confident that the CD that the Prosecution has is in
17 fact the CD that was sent to the Defence.
18 Now, I understand from the Defence that they were concerned,
19 because of the description in the various documents about the CD, that it
20 might contain a lot more information about the attack, whereas in fact it
21 has only a small amount, I understand, of information about the attack and
22 unfortunately contains a lot of other extraneous material. So that
23 probably, I think, gave rise to the alarm on the part of the Defence. I
24 haven't yet finished going through the CD, but I'm confident that by the
25 time I've finished, I'll be sure that the CD that we sent the Defence is
1 the same as our CD.
2 JUDGE AGIUS: Mr. Di Fazio, if I could be of any -- of some
3 assistance. I tried to make some sense out of this confusion, to be
4 honest, and the best I could come up with is the following: In Annex 17
5 that you attached to your response to the Defence motion, this CD has got
6 an ERN number of V000-2773. And it is described as Serb TV video review
7 of Muslim attack on Kravica on 7 January 1993. Then there is also an
8 indication "previously disclosed but being sent again as per Defence
9 request of 12/12/2003." If you refer to Annex 16, which you also referred
10 to, we have the same reference number, which is V000-2773, and here it is
11 described in more detail. Unfortunately, none of the detail given in this
12 description includes the attack on Kravica. It says this video consists
13 of footage that begins with a celebration. Naser Oric is filmed for only
14 one minute. Date on video is 2nd June 1992. Oric is in an office
15 discussing various issues. The rest of the footage consists of a funeral,
16 surgery of a leg amputation, and footage of men gathering for a barbecue.
17 The time period is March to July 1994, which does not coincide with the
18 attack on Kravica, which is 7 January 1993. So if I say I am confused,
19 I'm being extremely moderate in my approach.
20 I am not going to proceed any further on this. I understand, I
21 was told way back before I started this case, that I am dealing with an
22 excellent team from the Prosecution side, an excellent team from the
23 Defence side. I'm going to confide myself in your hands. Please take it
24 up. If necessary, if you require another 65 ter meeting, I will have it
25 organised under the supervision of Mr. Von Hebel and try to sort it out.
1 Because, as I said, reading your response, reading Annex 17 and reading
2 Annex 16, I feel confused. I am -- and my colleagues feel confused too.
3 I mean, we can't see any logic anywhere. So if you can deal and sort it
4 out with Mr. Jones and whoever --
5 MR. DI FAZIO: As I said, if Your Honours please, following our
6 recent meeting, I undertook to review the material and assure myself of
7 all those matters that I mentioned to you.
8 JUDGE AGIUS: All right. But you understand what our
9 preoccupation is, because --
10 MR. DI FAZIO: I do, Your Honours. I do.
11 JUDGE AGIUS: I try before each sitting to go through every single
12 page, every single paragraph, every single sentence and every single
13 comma, and sometimes the more I do of this, the more difficult my work
14 becomes. So -- but please try to cooperate as much as you can.
15 The Bijelanovic and Djukic, you haven't really touched on those.
16 MR. JONES: Your Honour, I wonder if I can just conclude my reply
17 on Rule 68. As I said, we gave illustrative examples of Rule 68
18 non-compliance. There are other examples. We know witnesses who have
19 made exculpatory statements to the Prosecution relating to authenticity,
20 but we won't go through that now. It will be a matter which will emerge
21 during the trial. It will be matters which will appropriately be put in
22 cross-examination. But we do say that we've shown enough at this stage to
23 warrant the intervention of the Chamber to create some form of
24 accountability, which appears to be absent at this stage. We say there
25 has to be some remedy. For example, if the investigator were to certify
12 Blank page inserted to ensure the pagination between the English and
13 French transcripts correspond
1 that he's considered the statements which he's taken in the case and he's
2 satisfied that all the Rule 68 material has been disclosed, then at least
3 if something emerges, that investigator is accountable, as he should be,
4 for that decision. At present, there is no accountability, we say.
5 Thank you. If I can assist you further, Your Honour.
6 JUDGE AGIUS: I thank you, Mr. Jones. I now turn to the
8 I would like -- who is going to deal with this? Yes, Mr. Wubben.
9 MR. WUBBEN: Your Honour, I --
10 JUDGE AGIUS: And I would also like you -- invite you to deal with
11 the requests relating to the Vlasenica records.
12 MR. WUBBEN: Your Honour, before this Pre-Trial Conference, I
13 requested Mr. Di Fazio to prepare on disclosure, so he will include.
14 Thank you.
15 JUDGE AGIUS: I thank you, Mr. Wubben. Mr. Di Fazio.
16 MR. DI FAZIO: Thank you. If Your Honours please, the material
17 relating to Vlasenica, Djukic, and Bijelanovic, has been handed over. It's
18 been complied with, the request of the Defence, as indeed has a lot of
19 other material that they -- was the subject of the -- of their motion. So
20 that's the situation there.
21 The general Prosecution response to the application --
22 MR. JONES: I hesitated to rise to my feet, but my learned friend
23 might say when that occurred, because that might create the impression
24 that we -- it was disclosed yesterday, late last night, at 10.30.
25 MR. DI FAZIO: Yes. May I confer with my case manager to let you
1 know when it was handed over?
2 JUDGE AGIUS: Yes. That's important to know, obviously. And at
3 the end of the day, if you're still not in agreement, I'm going to ask for
4 a -- this matter can be properly addressed by -- I will come to that
5 later, anyway. Let's not bother about that now.
6 MR. DI FAZIO: The material was handed over last night. It
7 consisted of a number of CDs, compact disks, together with hard copies,
8 about two or three binders' worth.
9 I hope that satisfies my learned friend.
10 MR. JONES: When we received it, because that's obviously
12 JUDGE AGIUS: Of course it is, yes.
13 MR. DI FAZIO: Thank you. Now, if I may get back to my general
14 response to the motion: The general Prosecution response is that the
15 relief sought is far too drastic in the circumstances, and that is clear
16 from our response.
17 The problem with their motion is that they advance a general
18 allegation of some sort of systematic across-the-board failure that has
19 been ongoing and support it with these examples. So what can the
20 Prosecution do but respond to the specific examples provided by the
21 Defence? And it has attempted to do so in its response to the motion of
22 the Defence. And that's the essence of the argument of the Prosecution.
23 The relief sought is just simply far too drastic in all the circumstances.
24 Even if, even if the examples that they provided were clear and true
25 examples of failure to comply with Rule 68, and the Prosecution says no.
1 Welded into that argument, our response, is a further submission that even
2 if, again, even if the examples that the Defence has provided were
3 sustainable, they haven't shown any prejudice. I was looking at the
4 submissions of my learned friend Mr. Jones, and he has failed to identify
5 any prejudice to you. Of course, the Prosecution has set out in its
6 response motion that it denies that there has been any inordinate delay
7 and has genuinely and almost -- generally complied with its Rule 68
9 JUDGE AGIUS: Yes, but Mr. Di Fazio, this is not the Appeals
10 Chamber. Let's not put together in the same basket at this stage the
11 question of prejudice and the responsibility and obligation that the
12 Prosecution has under Rule 68. The question of prejudice may arise at a
13 later stage, if necessary, but at this stage, our concern, and we have
14 discussed this thoroughly, is we take very seriously the obligation that
15 rests with the Prosecution under Rule 68(2) in particular. And I'm sure
16 that you --
17 MR. DI FAZIO: As does the Prosecution. As does the Prosecution.
18 JUDGE AGIUS: So the thing is this: I -- on one hand, I would
19 like to make it clear, very clear, particularly to you, that we will -- we
20 take a very serious view on this matter and that we will be very severe
21 with you if at any time we come to the conclusion that you have fallen
22 short of this obligation. We're making ourselves very clear on that.
23 Because we consider it to be one of the essential cornerstones of this
24 Tribunal and the procedure of this Tribunal. On the other hand, we are
25 fully aware also of the immense load of documentation that you deal with
1 in preparing cases. I fully understand that this is an exercise which
2 takes time, which involves the exercise of one's discretion and judgement,
3 where mistakes can happen, and genuine mistakes will be treated as they
4 deserve, genuine mistakes. But not omissions. So at this point in time,
5 without going much further, I think, if I read Mr. Jones' intervention
6 well, even between the lines, I don't think it will be a case of arriving
7 at a drastic measure that he has asked as a final remedy in his motion if
8 the question of disclosure under Rule 68 is finalised to the satisfaction
9 of the Defence.
10 On the other hand, the Defence must also understand - I'm sure
11 they understand - that this is an ongoing process, and there is no case in
12 which Rule 68 disclosure is finalised for all intents and purposes before
13 the trial begins. It's an ongoing process. And one has to be flexible
14 about it. But it's an obligation that has to be met.
15 So at this point, I think I would interrupt you -- I have already
16 interrupted you, but I would continue interrupting you and I would suggest
17 the following, if this is acceptable to both of you: I think since the 65
18 ter meeting we have already registered a significant progress, at least.
19 Again, I mean, subject to your verifying the documents that you received
20 last night, which I hope you are decent enough not to go through at the
21 expense of a good rest before coming for today's Pre-Trial Conference. So
22 I suggest that you go through the material that you have received. And I
23 trust that if at the end of this exercise you are not happy, still not
24 happy, if you think that there is still material that should have been
25 disclosed, but don't be vague. Be specific. At this point in time, I
1 can't really face seriously, look in the eyes of the Prosecution and say:
2 Listen, have you really done your homework well? Are there any documents
3 that you should have disclosed which you haven't disclosed? I mean, I
4 have to work on the assumption that everyone works here with a sense of
5 responsibility. I do not for a moment doubt the goodwill of the
6 Prosecution, just as I don't doubt the good intentions in the objections
7 that you have raised regarding two objections.
8 So let's do it this way: We are going to start the trial on the
9 6th of October. I would suggest that you try, after you have gone through
10 the material that you received last night, you see whether there's
11 anything else that you would like to have been disclosed which you are
12 aware of, not in a vacuum. I can't -- I mean, this was attempted in other
13 cases, and the answer was always and recurrently no on the part of the
14 Trial Chamber. I can't turn on the Prosecution and say: Madam
15 Prosecutor, go through all the documents that you have used in preparation
16 of the Oric case and tell me which one is exculpatory, which one is not.
17 I'm pretty sure they haven't even finished looking at all the documents
18 that they would like to look into. So at the end of the day, it's a
19 question of trust. If it surfaces at any point in time that this is not
20 being done according to the Rules, according to the law, then you don't
21 know what will hit you, and I better not tell you what will hit you. But
22 we will be as rough -- more rough than you can imagine. So I have full
23 trust in you. I suggest that you try and meet amongst you between now and
24 the beginning of the trial. If you prefer to meet formally under the
25 chairmanship of Mr. Von Hebel, I'm sure that Mr. Von Hebel, at my request,
1 will make himself available. You can contact Mr. Von Hebel himself if you
2 prefer this, and we can have it arranged amongst ourselves. But I would
3 like you to update the situation, the position, after having gone through
4 these documents. If there are still matters relating to Rule 68
5 disclosure that are still not -- you're not still happy with, then I think
6 address them in writing. We won't have any further debate on them. I
7 will give the Prosecution an opportunity to reply and then we will decide
8 the issue definitively, either before we start the trial or immediately
9 after we start the trial. But this is something that has to be settled,
10 if not before we start the trial, at the very earliest stage of the trial.
11 Do I make myself clear?
12 MR. JONES: For our part, we're perfectly happy to adopt the
13 course Your Honour suggests.
14 JUDGE AGIUS: And from your part, Mr. Di Fazio, I suppose?
15 MR. DI FAZIO: Certainly.
16 JUDGE AGIUS: So I close the debate on Rule 68 disclosure except
17 insofar as the Banja Luka basement collection is concerned.
18 MR. JONES: If it assists, I believe we received that also late
19 last night. We're still verifying what we received, though I understand
20 we've received it.
21 JUDGE AGIUS: So that has been --
22 MR. DI FAZIO: Handed over.
23 JUDGE AGIUS: That's excellent. I come to -- I hope I will have
24 the same answer to what I'm coming up with.
25 Now it's Rule 66 disclosures. And as you know, there are two
1 types of disclosures; under 66(A)(i), and under 66(A)(ii). First point:
2 I need a clarification because I'm not understanding a hundred per cent
3 here. Should I address one or the other? I don't know. You tell me.
4 There was an allegation, Madam Vidovic or Mr. Jones, that there were some
5 documents missing particularly from binder C. Then when I read further, I
6 got the impression that what was really missing, correct me if I'm wrong,
7 was only this original tape-recording or audiotape of the interview of
8 your client by -- or from Mr. Murat Efendic. Am I right or am I wrong?
9 Is there anything else missing apart from this original audiotape or is --
10 or is it just that?
11 MS. VIDOVIC: [Interpretation] Your Honour, you are right, as far
12 as the disclosure under 66(A)(ii) is concerned. However, we have to
13 indicate that the original audiotape is missing. In binder C, which has
14 been disclosed to us as part of the supporting material collection, we
15 received something which should be the transcript of the conversation
16 between our client and Mr. Murat Efendic, and we requested immediately to
17 be given an opportunity to inspect the originals of the documents for some
18 other reasons which are probably going to be addressed later on. And we
19 were able to establish immediately that the original tape was missing. The
20 original tape on the basis of which the transcript was drafted. So we
21 were informed after that on two occasions that similar disclosure was
22 made, and we received a similar answer as the one given in the context of
23 Kravica. So to cut the long story short, it turned out that there is no
24 original tape. We were referred to the series The Death of Yugoslavia as
25 the source of the tape, and I believe that it was actually the obligation
12 Blank page inserted to ensure the pagination between the English and
13 French transcripts correspond
1 of the Prosecutor to disclose to us, in accordance with the Rules, the
2 original tape.
3 But notwithstanding all that, I made an effort to locate the
4 original tape to see what it was all about, to see whether the transcript
5 was in conformity with the tape, because we only had the transcript of two
6 men talking, a transcript which was not verified at all. And then I was
7 -- the answer I received was that there was no such a tape. We need the
8 tape. We need the original tape. Otherwise, the transcript should be
9 excluded from the list of original exhibits. That is the position of the
10 Defence, Your Honour.
11 JUDGE AGIUS: From the Prosecution, who is going to respond to
12 this? Then we tackle the rest in due course.
13 MR. DI FAZIO: Yes. If Your Honours please, as I stand here, I
14 understand that there is only a transcript in our possession, a
16 JUDGE AGIUS: Who made the transcript?
17 MR. DI FAZIO: I don't know as I stand here, if Your Honours
18 please. It's a transcript of an interview conducted with the accused.
19 Now, I understand why the Defence want that audio, any audio version,
20 whether it be on videotape or cassette tape, to accompany that transcript.
21 And the Prosecution will do whatever it can to locate that particular
22 tape, because we share the same interest in getting that audiotape to the
23 Defence, and we need it as well. But as I understand our position, we're
24 not in possession of it.
25 Now -- yes. If you'll just bear with me, I can let you know. We
1 wrote to the Defence on the 18th of August, informing them that we have
2 checked our resources and that we are not in possession of any audio
3 recordings of the interview. 18th of August we wrote to the Defence and
4 informed them that. We consulted our Evidence Unit in the Office of the
5 Prosecutor. We were informed that the transcript was originally provided
6 on floppy disk, in Word format, and it was then printed out onto the
7 transcript and provided to the Defence. This was explained by way of
8 letter to the Defence, clearly, on the 18th of August. That's well over a
9 month ago that this was made clear.
10 In an effort to assist the Defence, we informed the Defence that
11 the interview originated from a television programme, and provided them
12 with some hints on who to contact in order to try and get an audio version
13 of that transcript, again, in the letter sent well over a month ago.
14 Now, I understand the concern of the Defence. They simply have a
15 transcript and they want to hear their client saying the words that appear
16 on the transcript. So does the Prosecution. I can assure the Trial
17 Chamber that the Prosecution will do whatever it can to obtain an audio
18 copy of the interview. We have become very interested in obtaining a copy
19 of that audio interview. But the fact remains that if we are unsuccessful
20 in obtaining the audio version of the transcript of the interview, then it
21 simply becomes an evidentiary issue for Your Honours to deal with at some
22 point in the trial, if and when the Prosecution tries to produce the
24 JUDGE AGIUS: But you know what the consequences could be.
25 MR. DI FAZIO: I do: I'm well alive to that. And Your Honours
1 will also understand why the Prosecution has such a keen interest in
2 finding an audio version of the transcript. But there's no wrongdoing on
3 the part of the Prosecution in regards to this issue. We cannot hand over
4 that which we do not have. And that's the problem, you see. But I raise
5 the point, if Your Honour pleases, that this was made clear in our letter
6 of the 18th of August, yet there is more complaint. It seems to be a case
7 of the Defence simply not accepting what is written in black and white in
8 our letter of the 18th of August. Now, this is my clear understanding of
9 the situation. I can leave the Trial Chamber knowing -- sorry, with my
10 comment on this issue, namely, that we will make every effort to locate
11 the audio version of the transcript.
12 JUDGE AGIUS: Let me ask a question. You've said in so many words
13 that basically this interview, or the transcript of the interview, is
14 derived from a TV programme.
15 MR. DI FAZIO: I'm informed that that is so.
16 JUDGE AGIUS: So is it -- is the entire transcript shown on this
17 TV programme or is it the interview from which the TV programme derived
18 some information? In other words, if we were to see the TV programme,
19 would we have the entire interview or not?
20 MR. DI FAZIO: I don't know which is which, if --
21 JUDGE AGIUS: I don't know. Because as I understand you, is that
22 this interview in reality happened for the purpose of this TV programme.
23 MR. DI FAZIO: Yes.
24 JUDGE AGIUS: So do you have the TV programme video-recording?
25 Madam Vidovic mentioned actually a well-known production, so -- which --
1 MR. DI FAZIO: We may have it, in which case, if Your Honours
2 please, then our search is not going to take a very long time. It's not
3 going to take a very long time. If we have it. But I rather doubt that
4 we would have it, because there wouldn't be any need for us to be in
5 possession of the sole diskette containing the Word transcript of the
6 particular interview.
7 JUDGE AGIUS: Mr. Di Fazio, at a later point in time, at a later
8 stage, I'm going to ask you to bring forward -- you're aware of this
9 anyway because Mr. Von Hebel gave you prior to notice of this, that I'm
10 going to ask you to bring forward as your first witness someone of your
11 choice who will confirm the provenance of each and every document that you
12 will be tendering, seeking to tender an exhibit in evidence, with the
13 exception maybe of those which are not contested by the Defence. I take
14 it that if I were in your place and someone comes and tells me: This is a
15 transcript of an interview by Murat Efendic and the accused Oric, my first
16 question is going to be: In which language? That's number one. Second:
17 Where did you get it from? And if he tells me this is a transcript of an
18 audiotape, I would say: Do you have the audiotape? If he -- I certainly
19 won't accept "I don't know" as an answer. There must be some source from
20 which this transcript originated. So for the time being, I'm just going
21 to tell you: Go and do some extra homework. See what you can locate.
22 Because the consequences may not be throwing out this document
23 automatically, but I really don't understand how you can come forward with
24 a transcript based on something that you cannot really trace or something
25 that you cannot show to the Defence or to the Trial Chamber. If it's part
1 and parcel of this TV programme or of the production The Death of
2 Yugoslavia, then bring that. I don't know. I remember The Death of
3 Yugoslavia very well, but that was a BBC production, no?
4 MR. DI FAZIO: It is, and in fact the letter continues, if Your
5 Honours please. The correct title of the programme, we understand from
6 our Evidence Unit, is: "Yugoslavia, a series for BBC 2, five parts." And
7 we provided the name of the publisher where they might obtain the audio.
8 And I can tell Your Honour that the Prosecution is going to approach the
9 publisher and seek the material once again because I understand why the
10 Defence want the audiotape, and the Prosecution also wants it. So we're
11 ad idem on that issue.
12 JUDGE AGIUS: The position as I see it, Mr. Di Fazio and Madam
13 Vidovic, as I see it, is this: I haven't seen this transcript. None of
14 us has seen this transcript. So we really don't know what both of you are
15 talking about. We don't know whether it's a very short transcript or
16 whether it's a long transcript. We don't know whether really it is part
17 of The Death of Yugoslavia film series. We don't know. But I would take
18 it that you should -- I mean, it's no surprise that we don't know. We've
19 just come on the case. But I take it if you have received this transcript
20 and this has been put to you, we want to know -- we want to see the source
21 of this transcript. Some kind of investigations have been carried out.
22 If this transcript is a faithful transcript of what is shown in the series
23 Death of Yugoslavia, whichever part of it it is, then we don't have a
24 serious problem. We have The Death of Yugoslavia, then it's a question of
25 whether we can go to that source and see whether we can go beyond that.
1 But if it's -- it goes beyond what is shown in The Death of Yugoslavia,
2 then that's another matter. You should be seeking at least to satisfy
3 yourself first that what you have been given and what you have handed over
4 to Mr. Jones and Ms. Vidovic is a faithful reproduction of the interview
5 that was conducted, if it was conducted, between Efendic and Mr. Oric.
6 So again, I'm going to leave this in your hands. You know how we
7 look at it. And I think you should be able to find a solution to this
8 without any great difficulty.
9 MR. DI FAZIO: I think so, because we now have two teams working
10 on it, both the Prosecution and the Defence: The Prosecution has
11 developed a very keen interest in the audio recording and we're going to
12 do our level best to obtain it.
13 JUDGE AGIUS: Are you satisfied with this, Ms. Vidovic?
14 MS. VIDOVIC: [Interpretation] Yes, Your Honour.
15 JUDGE AGIUS: Thank you. Again, we are still -- we'll be having a
16 break in about seven, eight minutes' time. Remind me, please.
17 We're still on Rule 66(A) disclosure. I am informed that during
18 the Rule 65 ter meeting that Mr. Von Hebel presided over, you informed
19 Mr. Von Hebel that you have prepared a list of all witness statements, of
20 which you have not yet received a translation, and that you requested that
21 these translations should be made available to you as soon as possible,
22 particularly in view of the proximity of the commencement of the trial. I
23 would like to tackle this first and foremost. Are there still -- first of
24 all, I haven't seen this list, to start with. That's number one.
25 Secondly, are there still witness statements the translation of which you
1 have not received as yet? I don't know who is going to deal with this.
2 MS. VIDOVIC: [Interpretation] Your Honour, I'm going to deal with
3 this. We haven't received all statements in the language of the accused.
4 I'm referring to the statements that were taken previously in these
5 proceedings. We had a meeting with the Prosecutor two days ago, I
6 believe, and we agreed that these statements should be given to us as soon
7 as possible, and the Prosecutor promised that he would invest some
8 additional effort so that we could have the statements as soon as possible
9 in the language that the accused understands.
10 We provided a list of witnesses whose previous statements have not
11 been translated.
12 JUDGE AGIUS: You have provided to the Prosecution, I understand.
13 MS. VIDOVIC: [Interpretation] Yes. Yes.
14 JUDGE AGIUS: I thank you, madam.
15 What's the position from your point of view? I don't know who is
16 going to respond to this.
17 MR. DI FAZIO: If Your Honours please, the Prosecution again is
18 aware of problems with getting translations in the language of the accused
19 to the Defence. There isn't that much that the Prosecution can do except
20 try and get the relevant sections in the ICTY to do the translations as
21 quickly as they can. I think Your Honours are aware of the considerable
22 difficulties that the CLSS has in dealing with the massive workload that
23 it faces every day. All that the Prosecution can say is that we will do
24 whatever we can to expedite that process, that there's no benefit to us
25 whatsoever in delaying that. On the contrary. And we're keen to do that.
12 Blank page inserted to ensure the pagination between the English and
13 French transcripts correspond
1 But we're hamstrung by sheer reality that exists within this institution.
2 The whole translation problem is, as you know, a big one.
3 If the Defence were able to, in addition to provide us with a
4 list, perhaps prioritise within that list the material that they need the
5 most, and we will do whatever we can to ensure that the translation of
6 that material is done as swiftly as possible.
7 JUDGE AGIUS: I beg to differ. I don't think it's the Defence
8 that has to prioritise. I think that you have to prioritise, depending on
9 the sequence of witnesses that you intend to follow. For example, you
10 will probably find us creating problems for you if we come to the first
11 witness that you intend to bring forward and we find out that his
12 statement has not been translated. We don't mind if the last witness that
13 you will be bringing forward in February or in March, whenever that will
14 be, has not yet had his witness statement translated, but I think it's
15 your problem. May I ask how many -- what's the extent of this problem?
16 How many witness statements are we talking? Because as I take it, I mean
17 from my experience over the past three years, when your investigators on
18 the ground start interviewing people, most of the time they are
19 interviewing them in the Serbian-Croat language, and the interview is
20 translated there and then in English. So I don't understand how the
21 translation in Serbo-Croat, which basically should be the original, is
22 still missing. I can understand it when witnesses are English speaking
23 only and the interview is taken in English and redacted in English, but I
24 have a problem. I mean, I have a problem in understanding the problem in
25 the first place.
1 MR. DI FAZIO: Well, I've heard what Your Honours have had to say
2 on the topic and the Prosecution will ensure that all the translations are
3 provided to the Defence, particularly the witnesses who are first called,
4 and to ensure that the accused has all the translations of those
5 statements in good time. But I can't -- I don't have before me a schedule
6 of what precisely remains to be untranslated, and so I can't say to you
7 with any precision. It would be a matter, I suggest, that I could raise
8 with Mr. Von Hebel after this particular conference, and we can give you a
9 more accurate list of the situation with respect to outstanding
11 JUDGE AGIUS: I still don't understand, because basically what
12 happens on the ground if Mr. X is being -- who is a native of
13 ex-Yugoslavia, is being interviewed by an officer -- by an investigator or
14 by an officer of the Prosecution, will be interviewed in the presence of
15 an interpreter.
16 MR. DI FAZIO: Yes.
17 JUDGE AGIUS: Questions are put and translated and interpreted
18 there and then to the prospective witness, to the person being
19 interviewed. The statement is drawn up in English.
20 MR. DI FAZIO: That's right.
21 JUDGE AGIUS: It is translated into the native language by the
22 interpreter. The witness, prospective witness, is made to sign, if he
23 wishes or she wishes to do so, the English version.
24 MR. DI FAZIO: That is correct.
25 JUDGE AGIUS: But that is accompanied also by a declaration of the
1 interpreter that it has been interpreted in the native language to the
2 witness faithfully, and it is accompanied with the text of the interview
3 in the Serbian-Croat language. So --
4 MR. DI FAZIO: Well, if Your Honours please --
5 JUDGE AGIUS: I can't understand.
6 MR. DI FAZIO: No, no.
7 JUDGE AGIUS: How come they are missing?
8 MS. VIDOVIC: [Interpretation] Your Honour, perhaps I may be of
9 assistance with my own explanation. Actually, these are statements that
10 witnesses made in previous procedures in Bosnia-Herzegovina, for instance,
11 or in Serbia. The Prosecutor received them, and this is in line with the
12 Rules of the Road. But they were received by the Prosecution in the
13 English language. I believe that that is the only way to do this. Because
14 that's the same format that we found them in as we examined the material
15 that the Prosecutor received in accordance with the Rules of the Road.
16 And acting pursuant to Rule 68(B), which made it possible for us to
17 inspect this. Perhaps there is yet another statement. I haven't seen it
18 yet, though, one that was taken by the Prosecution only recently from a
19 protected witness, and it can only be assumed that the Prosecutor did not
20 have enough time to receive this statement. But the previous statements
21 are very important to us as well, those that were given in other
22 procedures, different procedures. But they also fall under Rule 68(2)
23 [sic]. So I hope that we can receive this. Thank you.
24 JUDGE AGIUS: That clarifies matters better. Anyway, again, the
25 important thing for us, if I may say so, subject to further consultation
1 with my colleagues, is this: That make sure that for every single witness
2 that you intend to bring forward as we go along, any previous statements,
3 prior statements that you should have disclosed to the Defence in the
4 appropriate applicable languages has been done.
5 MR. DI FAZIO: Yes.
6 JUDGE AGIUS: That's the important --
7 MR. DI FAZIO: Yes, it is.
8 JUDGE AGIUS: I understand there may be some problems,
9 administrative problems. I'm fully aware of that. I mean, I encountered
10 that problem in other cases too. And the way we have solved it, and I am
11 going to suggest this to you, this is something that was brought up, I
12 know, in the discussions that we have had with our staff and I understand
13 also during the 65 ter meeting, is the question of translations. My dear
14 friends, if you are going to insist on official translations for each and
15 every document that we need to make use of in this Trial Chamber, we might
16 as well forget about this case starting before another two or three years.
17 There's no way we can have every single document officially translated and
18 certified correct in this Tribunal. I mean, Brdjanin case I had thousands
19 and thousands and thousands of documents, running into tens of thousands
20 of pages. There came a time when we needed to make use of this document
21 without further delay, and we couldn't even have the document translated
22 unofficially, informally, inside the Tribunal. And what we did was the
23 two parties got together, we said let's be practical, we can have it
24 translated outside this Tribunal, so that we can proceed. And this is
25 what I am recommending to you. Be practical. I'm not recommending send
1 documents outside this Tribunal for translation. What I'm recommending to
2 you is be practical. You can't expect all documents to be officially
3 translated in good time or in real time. It's out of the question. There
4 are other cases ongoing in this Tribunal with a lot of translations going
5 on. We are not in competition with one another. We are trying to
6 cooperate with one another. And so please mince my words, take it as food
7 for thought, and I do not expect you to come back with a definitive reply
8 here and now on this matter, but I do seek on behalf of Judge Eser and
9 Judge Brydensholt your cooperation in this matter. Please don't create
10 obstacles on the basis of requiring documents to be officially translated,
11 because we will get stuck and I'm sure it's not in your interests or in
12 the interests of the Prosecution of getting stuck instead of proceeding
13 with this case with the utmost, with the best speed possible. Okay? So,
15 We will have now a 25-minute break, and there are still quite a
16 few things, but we are moving. Thank you.
17 --- Recess taken at 4.36 p.m.
18 --- On resuming at 5.04 p.m.
19 JUDGE AGIUS: Yes. So let's proceed. We're still with Rule 66
20 disclosure. I am informed also that the Defence complained that material
21 pertaining to protected witnesses had not been disclosed in its entirety,
22 and stated by way of example that they had not yet received complete
23 statements for witnesses C-003 and C-006. Is that still the position?
24 MS. VIDOVIC: [Interpretation] Your Honour, the last time we met,
25 we talked to the Prosecutor about this. We did resolve the issue. There
1 are annexes to the statement of witness C-03 that were still missing, but
2 perhaps that is in the big group of material that we got last night.
3 Because indeed we haven't looked through all of it yet. If that is the
4 case, if we have received these documents, we shall confirm it. If not,
5 we are going to deal with it with the Prosecution. Thank you.
6 JUDGE AGIUS: Okay. I thank you, Ms. Vidovic. And what about the
7 B/C/S translation of Dr. Fagel's report and, also I'm referring to 17
8 statements of intercepts. Have these been translated?
9 MR. WUBBEN: Your Honour, I know, and I look at my case manager,
10 that the translation of Dr. Fagel's report into B/C/S has been disclosed.
11 And related to the statements of intercepts, I'm not very clear at the
12 moment to be updated with the latest information. Please give me some
13 moments to contact my case manager. Thank you.
14 JUDGE AGIUS: Yes, certainly, Mr. Wubben. And I trust you will
15 come back later on on this.
16 We come to something which will probably not be concluded today,
17 which, however, we will need to deal with when we start -- when we
18 commence the case, and that is the length of the trial. I appreciate that
19 there have been some developments in the last few days, Prosecution
20 seeking to amend the indictment, certain parts of the indictment being
21 dropped, witnesses consequently being dropped, and Prosecution seeking to
22 admit new witnesses, Prosecution also seeking to admit new exhibits. We
23 need to take stock of the situation now and more or less make a
24 calculation of how much you require to conclude your case, Mr. Wubben.
25 And the Defence also needs to start thinking along those lines.
1 Obviously, the case for the Prosecution hasn't started as yet, so I don't
2 expect you to be as categoric as the Prosecution, obviously, but we need
3 to plan, and we need to plan for more than one reason. I mean, the Trial
4 Chamber has got a deadline which it has imposed upon itself, possibly, to
5 conclude this trial. We are flexible, but we also would like to have you
6 first of all exercise some self-discipline and then we will do the rest.
7 You had given an indication, Mr. Wubben - when I say "you," it's the
8 Prosecution - that you required roughly 16 weeks to conclude your case.
9 MR. DI FAZIO: If Your Honours please, I think we can swiftly
10 update you. I understand my colleague Ms. Richardson caused to be
11 provided to your assistants a new --
12 JUDGE AGIUS: List of witnesses.
13 MR. DI FAZIO: -- list of witnesses. Do you have that?
14 JUDGE AGIUS: Yes.
15 MR. DI FAZIO: Copies have been given to the Defence.
16 JUDGE AGIUS: 62 witnesses --
17 MR. DI FAZIO: That's right.
18 JUDGE AGIUS: Three short of what they were before.
19 MR. DI FAZIO: And you can see that she has gone through and
20 listed the -- estimated, and it's always difficult to do that with a high
21 degree of accuracy, but there's an estimate of the hours that each witness
22 will take. Now, that's only examination-in-chief. It doesn't include
23 cross-examination, which of course is more a matter that you should direct
24 to Defence. So if you look at that list, the conclusion is quite simple;
25 approximately 11 weeks, and that's just examination-in-chief.
12 Blank page inserted to ensure the pagination between the English and
13 French transcripts correspond
1 JUDGE AGIUS: And what is your position? Obviously, you don't
2 know what these witnesses are going to say. You can only base your
3 assessment on the witness statements that you have already.
4 Yes, Ms. Vidovic.
5 MS. VIDOVIC: [Interpretation] Yes. Yes. Judging by the
6 statements we have received, Your Honour, we are going to need a great
7 deal of time for cross-examination, and we would like to ask the Trial
8 Chamber to give us equal time, or as much time as possible, so that we
9 could deal with all of it properly.
10 JUDGE AGIUS: All right. We'll obviously discuss this in camera,
11 in chambers, later on, and we will come back to you at the beginning of
12 the trial. More or less, we'll give you an indication, but you are fully
13 aware that we have all the authority to curtail on the time limit that
14 will be allocated for the Prosecution and for the Defence. Anyway, there
15 will be a measure of flexibility, of course. Much depends actually on
16 what will be forthcoming in the course of the evidence. But we will deal
17 with this in due course.
18 Let me just check -- go through my notes to make sure that there
19 is nothing that I need to alert you to in this context. There is the
20 question of -- you filed a motion last week with regard to additional Rule
21 92 bis witnesses, statements. Do you think that is conclusive? They were
22 already witnesses listed in the 65 ter list. Do you think we should
23 expect more 92 bis statements or not?
24 MS. SELLERS: Your Honour, if I might address the Court. That
25 motion related to 92 bis (C) statements and those are witnesses who are
1 unable to attend the proceedings, either through the fact that they are
2 deceased and one is -- actually has a very grave disability, having
3 suffered a stroke. At this point in time, we do not anticipate any other
4 92 bis (C) motions filed on behalf of the Prosecutor, but of course we
5 would like to ask the Trial Chamber's indulgence that if circumstances
6 arise where our witnesses are deceased during the course of the case in
7 chief for the Prosecution or any accidents might arise, we might come back
8 to the Court with a similar motion. If the Trial Chamber would like to
9 know if there are any other types of witness motions that we'll be filing
10 where the trial might proceed in a manner that is a bit more efficient,
11 not having to call a witness for the entire examination-in-chief but only
12 partially, I'd like to inform you that we are currently examining that
13 possibility. We would remind the Defence that at this point in time we
14 have disclosed statements, so they will be fully aware of the entire
15 potential testimony of any witness. Thank you.
16 JUDGE AGIUS: Thank you, Ms. Sellers.
17 MR. WUBBEN: And Your Honour, in addition to this, when the Trial
18 Chamber comes to a point of decision-making on the procedure as such, we
19 would like to facilitate, indeed as counsel Patricia Sellers told you, to
20 expedite further, and then we might handle the issue of 89(F). For me
21 it's a question of to what extent the Trial Chamber expect from us a
22 certain or specific motion or that an announcement beforehand, which might
23 be more practical and easier to handle than just notifying then beforehand
24 Trial Chamber and Defence counsel that OTP would prefer and project a
25 certain witness to be handled as 89(F) in his statement.
1 JUDGE AGIUS: Yes. Mr. Jones or Ms. Vidovic, do you have any
3 MR. JONES: Yes. Thank you, Your Honour. We've received the
4 Prosecution motion regarding the 92 bis (C) witnesses, the proposed 92 bis
5 (C) witnesses, and we do need some time to consider that motion. I'm
6 afraid we're not in position --
7 JUDGE AGIUS: That's not something --
8 MR. JONES: I do note in that regard that in this witness list,
9 James Gow is listed as expert evidence pursuant to Rule 92 bis. I just
10 want to clarify for the record our understanding anyway that certainly
11 there's going to be cross-examination of Dr. Gow. We've been discussing
12 with the Prosecution already the length of time that might take. As for
13 89(F), all I can say is we're rather wary of anything which will impact on
14 our right to cross-examine witnesses and we'll have to see that in due
15 course. Thank you.
16 JUDGE AGIUS: So this matter is reserved and we'll deal with it as
17 and when it arises.
18 Exhibits. I have gone through the Prosecution motion, latest
19 Prosecution motion, seeking leave to add exhibits to its exhibit list. I
20 have also discussed with my colleagues the Defence response, which was
21 filed yesterday. I take it that you are only objecting to five of the
22 proposed additional exhibits, with the understanding that you are,
23 generally speaking, objecting to the fact that what was disclosed to you
24 is the list and not the documents.
25 MR. JONES: Yes, Your Honour. We've since received the documents.
1 JUDGE AGIUS: That's good. That's good. And you still insist on
2 your objection on those five?
3 MR. JONES: Yes, indeed.
4 JUDGE AGIUS: Okay. Again, this is not a matter that needs to be
5 decided today. You are aware of the position taken by the Defence in
6 regard to these five documents. You will have the usual opportunity that
7 is provided by the Rules for you to respond, if you think it is necessary.
8 And then we obviously reserve our position and we will hand down a
9 decision later on. It could be written, it could be oral, depending on
10 what we're doing at the time. Okay? That's -- okay.
11 We come to the next item on the agenda that I have, and that's the
12 opening of the trial.
13 Opening of the trial, we'll divide it into days, let's put it like
14 this. And on the first day of the trial, we have agreed that we will
15 dedicate it entirely to your opening statements. Prosecution and Defence.
16 We take it, at least this is the message that arrived to us, that more or
17 less you require about an hour, hour and a half each at the maximum.
18 There is even time for more if you feel -- think it is necessary. On the
19 first day, there will be nothing else but your opening statements. I also
20 take it - again, I asked my staff to inquire this of you - that your
21 client will not be making a statement at this stage.
22 MR. JONES: That's right. That's right, Your Honour.
23 JUDGE AGIUS: So that will be the first day of the trial. Then
24 I'm told by -- my Senior Legal Officer has informed you of this, the
25 system that I suggest we adopt, and the two Judges are in agreement on
1 this, is to repeat what was done in the Brdjanin case, which was actually
2 also then repeated in other cases. And more or less, we come from
3 different jurisdictions. Each one of us is used to a different kind of
4 procedure. Some of us can handle that without any difficulties. Some
5 will encounter difficulties. I think we should approach the trial with an
6 open book all the time. So we will be handing -- we will be spelling out
7 to you a set of guidelines at the very beginning of the trial, these being
8 rules that we intend to adopt and apply in the course of the trial. They
9 are adjuncts to the Rules of Procedure and Rules of Evidence that are
10 based on practice in this Tribunal. I can give you some hints beforehand.
11 I mean, we will be dealing with, for example, here, evidence, we'll be
12 dealing with the tendering of documents. We'll also be dealing with
13 conduct generally during the sittings, conduct on the part of the staff,
14 conduct on the part of the parties, counsel, and so on and so forth. It's
15 not an exhaustive list of guidelines. It contains the basics that we
16 definitely will be insisting upon and which we will be applying as we go
17 along. And that will be handed down to you orally. I will explain the
18 context of these guidelines during the second day of the trial.
19 There will on that day also, we'll take up any leftovers from
20 today and any other matters that will arise in the meantime. From my
21 experience in this Tribunal, you can expect anything from one day to the
22 other. So second day we will try and dispose of any pending matters that
23 need to be dealt with and disposed of before we proceed with the trial.
24 In particular, I am referring to any pending issues relating to protective
25 measures, especially relating to the first witnesses, the first set of
1 witnesses that will be forthcoming, where and if this is applicable.
2 Then comes the question before we start with the evidence proper,
3 there are two principal things that I would like to have done. I would
4 have preferred Prosecution to tender all its documents as an entire, as
5 one corpus in the beginning of the trial. I understand, and I fully
6 appreciate, that the Prosecution would like to deal with this matter in a
7 different manner and possibly stagger the tendering of the various
8 documents as we go along, depending on each witness that will be
9 forthcoming. We have discussed this amongst ourselves. Our preference is
10 still, of course, that we try and get in the records as many documents
11 from the Prosecution as we can at the very beginning of the trial. We
12 understand the logic and the reasoning behind your preoccupation, and we
13 intend to be flexible. But what you can bring forward, please do. Also
14 because we are in the unhappy situation that, unlike, say, in domestic
15 jurisdictions, where you have, for example, in my country, you would have
16 committal proceedings records and you have got all the documentation there
17 already, you know exactly what each witness has testified in the course of
18 the committal stage, you know what the documents that are going to be made
19 use of in the trial consist of. You have a clear picture. We start off
20 with the disadvantage of not knowing what these documents are, unlike the
21 Defence, who would know exactly what they are, and that creates a problem.
22 At the same time, if we are made aware of these documents, we can have a
23 look at them and prepare ourselves better for when they are being made use
24 of by the various witnesses.
25 As it happens, and as you know, if this is left on an ongoing,
1 rolling basis, et cetera, we get witnesses coming over to give evidence,
2 and the witness is presented with a document which is tendered as an
3 exhibit -- in evidence, which we have never seen before. He is asked --
4 it may be a quite a bulky document sometimes. He is asked or she is asked
5 questions. We are trying to follow, either in CaseMap or on hard copy or
6 on Sanction or whatever and it may be difficult. If we know that witness
7 so-and-so is coming over, he's going to be asked questions on what is
8 going to become Exhibit P100 and we have that exhibit beforehand, at least
9 we know what he is going to testify about. So it's a question of trying
10 to meet one another's needs more than insisting on something which is
11 crucially essential or anything of the sort. Yes, Mr. Wubben.
12 MR. WUBBEN: Judge Agius, to inform you and update you, the
13 Prosecution reconsidered their position and we will accommodate the Trial
14 Chamber in that regard and try to tender as much as possible documents in
15 the beginning of the trial. Thank you.
16 JUDGE AGIUS: I thank you. And feel free not to tender them in
17 the beginning if you require. You will help us a lot by applying this.
18 The Defence, I'm not going to address this matter to you at this
19 point in time, because you're not -- at this point in time, you're not
20 required to tender any document in evidence. That will -- we'll cross
21 that -- we come to that later.
22 MR. JONES: Certainly, Your Honour. Our concern is simply that
23 are the exhibits to be tendered through a witness?
24 JUDGE AGIUS: Yes. I'm coming to that.
25 MR. JONES: Okay. Thank you. I'm obliged.
12 Blank page inserted to ensure the pagination between the English and
13 French transcripts correspond
1 THE COURT: The way I would suggest that this is done, again, I do
2 not intend to interfere with the way you would like to present your
3 evidence, Mr. Wubben, but it's -- the desideratum of the Trial Chamber is
4 the following. And this is what was done in Brdjanin, for example, in
5 agreement with Ms. Korner and her staff. They were extremely cooperative,
6 I must say.
7 The way it was done is as such: In Brdjanin, it was divided into
8 compartments according to regions and municipalities. Over here, I
9 understand it's a little bit different. And you can actually stagger it
10 also if you decide to divide your case in stages, you can stagger the
11 production or the tendering of the documents accordingly. I don't mind
12 that. What I would require from you is the following: That we would
13 definitely require a list of the documents which you have already
14 prepared, basically. You would possibly liaise with the Registrar to know
15 beforehand the exhibit number that that document will carry once it is
16 admitted. That's a question of liaising with the Registrar. Then I would
17 request of you to have whoever you know is the person who is in the
18 position to do this, but it could be an investigator, it could be an
19 officer of the -- from the Office of the Prosecutor. The person who is in
20 a position to come here and, under oath, solemnly declare with regard to
21 each document being tendered, Prosecution will say: I, Your Honour, would
22 like to tender into evidence a bundle of documents numbered P1 to P100,
23 for example. And then the person you are going to produce, whoever that
24 may be, will go through these documents one by one and confirm the
25 provenance. In other words, if document P1 was obtained from the Ministry
1 of the Interior of Bosnia -- of the government of Bosnia and Herzegovina,
2 he will say: This was handed to the Prosecution by the Ministry of the
3 Interior of Bosnia and Herzegovina. If document P2 was retrieved by one
4 of your investigators during your search in Sarajevo, for example, he will
5 testify: This was retrieved during a search made on such-and-such a date
6 in Sarajevo by so-and-so. And, if possible, also a description of the
7 chain of custody.
8 What we want to make sure is that there are no doubts as to the
9 chain of custody. In other words, if he -- for example, in Brdjanin, it
10 was Mr. Inayat most of the time. So he recovered himself many of these
11 documents. He could explain how these were put into boxes, shipped to The
12 Hague, catalogued there and here, and conserved in a manner which no one
13 could doubt then their -- the chain of custody or the authenticity
15 So we will go through all this. For example, some may have been
16 handled by - I don't know - AID, for example, or by the security services
17 of Republika Srpska, for example, or from the security services in Banja
18 Luka. You know where you obtained these documents one by one. And we
19 will go through that. It's not as labourious an exercise as you think.
20 We will go through all the documents in a jiffy. You will be surprised
21 how quickly we will go through that. And then, obviously, we will reserve
22 your position, you will be able to cross-examine the witness in due course
23 on these questions of provenance.
24 Yes, Mr. Jones.
25 MR. JONES: That's certainly one concern, that we would
1 cross-examine the witness on each document. Your Honour did mention that
2 this process would be designed, at least in part, to solve the question of
3 authenticity. So naturally I --
4 JUDGE AGIUS: Not necessarily, because I know very little about
5 the problem of authenticity that has been raised, except what I read in
6 the reports that I have received from Trial Chamber III, and also some of
7 the motions that you filed. It's something that I am coming to now. But
8 it's more of being a matter that will be resolved today, it's a matter
9 that will be resolved during the trial. But I'm making it clear that we
10 will discussed this amongst ourselves thoroughly. It's not a matter that
11 we are going to sleep upon. This is a matter that has to be dealt with,
12 preferably as early as possible in the trial, as we go on, but we need to
13 know what the situation is.
14 Obviously, I have an indication what you have been objecting to.
15 I know that there is an expert report, but that's as far as we know. We
16 don't know anything beyond that. So we will need to discuss that further,
17 not today, because this is not a question that is going to be solved
18 today. But definitely this first exercise on provenance will definitely
19 help, because there may be documents, as we had in Brdjanin, that the
20 provenance could not be accounted for, and there were other documents that
21 were easily traced even to individuals, who handed them personally to
22 whom. So at that point in time, you have a number of persons who are
23 accountable, to start with, a number of persons that one could check with,
24 both from the Prosecution and from the Defence, and in part, it may solve
25 a big chunk of the problem of authenticity. But I can't guarantee you
1 that, because I still, and none of us knows exactly what is the extent of
2 the challenge that you have made to the majority of the documents that the
3 Prosecution intends to bring forward. I know more or less the nature of
4 the challenge, but not the details. You know what I mean.
5 MR. JONES: Indeed, Your Honour. In fact, the issue of
6 authenticity, there are multiple layers to the question of authenticity.
7 It's not a question of whether a document has been issued by the purported
8 author or has the proper seal, but whether the information which it
9 contains is reliable. Obviously, there are matters to be explored at
10 trial. And I take it from what Your Honour is saying that the admission
11 of documents at the start of the trial would almost be provisional in the
12 sense that if it were subsequently demonstrated that a document could not
13 be relied on, was not authentic, it would cease to be admitted into
15 JUDGE AGIUS: In fact you have actually hit the nail on the head.
16 As I told you, we have discussed this beforehand in preparation of having
17 to deal with this matter. We intend to proceed along the same lines as my
18 Trial Chamber in Brdjanin proceeded in the Brdjanin case. On principle,
19 on principle, I know that you are used to a system to which I am used when
20 it comes to admissibility of evidence. The rules that you are used to
21 cannot be strictly applied in the work that we deal with, especially since
22 we are not dealing with trials that last a few days or a couple of weeks,
23 where you can decide on the question of admissibility, plus then there is
24 the other question of whether admissibility of documents is a matter of
25 law or a matter of fact. It varies from jurisdiction to jurisdiction.
1 And we are not sitting with a jury.
2 MR. JONES: Indeed, Your Honour.
3 JUDGE AGIUS: So --
4 MR. JONES: Indeed we should say we studied the decision, the
5 order on the sentence governing admission --
6 JUDGE AGIUS: So the position will be as follows, and this is sort
7 of pre-announcing what we will be telling you on the second day of the
8 trial. Basically, everything that is not prima facie definitely
9 unreliable and should not be admitted will be admitted on a provisional
10 basis. Obviously there will be a little bit of a difference. If there is
11 this document to which you are not objecting, then obviously that will be
12 admitted; not provisionally, it will just be admitted. But it doesn't
13 mean to say that we cannot go back on our decision if later on we are not
14 convinced that that document -- so we can always revoke our previous
15 decision contrario imperio. This is basically how we will operate.
16 The matter, however, of authenticity, is something that we would
17 like to dispose of as early as we can, because we will have witnesses
18 coming to testify and they will be shown documents, and I want to make
19 sure that the documents are -- they are being shown are not
20 tainted documents, documents that may have been fabricated precisely to
21 divert the course of justice.
22 MR. JONES: Yes, Your Honour. Indeed, as you'll be aware, there
23 are particular concerns expressed, at least on our side, with respect to
24 authenticity, and we've given the reasons in various pleadings for that.
25 We're in a position today or tomorrow to elaborate on those concerns, if
1 that would be the assistance. Otherwise, obviously, we're in Your
2 Honour's hands as to when that matter should be dealt with and how.
3 JUDGE AGIUS: Exactly. One other thing in relation to this: I
4 understand that during this 65 ter meeting this was brought up and you
5 also discussed some matters related to your desire to have your own ex
6 parte expert to check these documents for authenticity. Of course, you
7 will find no obstruction from the Trial Chamber. You have a right for
8 this and we will come -- we will meet you on this. On the other hand, in
9 your discussions, because this is what we were given to understand that
10 you will be discussing, you will be discussing this with the Prosecution;
11 on the other hand, while you are conducting the discussions, please keep
12 in mind that these are originals, that if you need these originals to be
13 transported to wherever you want to have them tested, this must not be
14 done in a way which would impede us from proceeding with the trial. So we
15 would have to find a way in which we can proceed with the trial, either
16 with copies of these originals. We must also be kept fully informed of --
17 on how this is going to be done, to make sure that there is no way these
18 originals can be tampered with and that these will be the originals that
19 will be checked by your expert -- ex parte expert. But we will come to
20 this later on. But in your discussions, the bilateral discussions that
21 you will have, please do address all the modalities that pertain to this
23 MR. JONES: If I might mention one matter in that regard, Your
24 Honour. We had a particular expert in mind which, for reasons which I
25 won't go into but which were financial in nature, we were unable to
1 instruct that expert. We've identified another expert, but as Your Honour
2 might be aware, certain experts work in government ministries, for
3 example, the expert instructed by the Prosecutor, and it's sometimes the
4 policy of those ministries that they won't act for a private party. They
5 require an order from the Court. So it may be that in the very near
6 future we would need to call on the Chamber's assistance to help us
7 appoint an expert who would then look at the documents, and hopefully,
8 since that would be a ministry or government expert, that might also
9 assuage some concerns about the safekeeping of the documents. But that's
10 obviously another matter.
11 JUDGE AGIUS: You obviously understand we cannot commit ourselves
12 to that. When the time comes that you need to do this, you'll let us know
13 and we'll see to what extent we can involve ourselves in this, obviously.
14 But I can't tell you here and now that we can do that. Yes, Mr. Wubben.
15 MR. WUBBEN: Yes, Your Honour, just a correction. The Dutch
16 Forensic Institute is not a laboratory that is within the -- a government
17 ministry in the Netherlands. It's an independent laboratory. Just to
18 inform you.
19 JUDGE AGIUS: Yes. So basically, second day will be guidelines
20 plus housekeeping matters, particularly related to protective measures and
21 any pending issues. Then it's a question of exhibits and your
22 investigator, your witness testifying on the -- on each and every one of
23 these. You can catalogue these. In other words, this is why I said we
24 can really go swiftly. It could well be, for example, that Exhibits
25 number 1 to 30 were all handed to you, to the Office of the Prosecutor by
12 Blank page inserted to ensure the pagination between the English and
13 French transcripts correspond
1 the Sarajevo police headquarters. I'm just thinking aloud. In that case,
2 you will only need to say Exhibits 1 to 50 were handed to us by the
3 Sarajevo police. They were received by officer so-and-so. And that's it.
4 And he discovered 50 documents. I wouldn't imagine that if you have 180
5 documents each one has come from a different source. So this is why I'm
6 telling you we can really abridge this.
7 MR. DI FAZIO: If Your Honours please, the Prosecution will do
8 what it can to accommodate the methodology that you've suggested, and I
9 understand from your comments that initially I understood that this was an
10 option, but I understand now that this is the definite view of the Chamber
11 and that you wish to proceed that way, and we will accommodate --
12 JUDGE AGIUS: I think it's essential, Mr. Di Fazio, because let's
13 come down -- I mean at the end of the day, if the question of authenticity
14 is going to be raised and even if the first stage of authenticity, say the
15 signature, or I don't know -- we'll have to go into details. In the
16 Brdjanin, authenticity was contested sometimes because there was no
17 signature, sometimes because the signature was illegible, sometimes
18 because there was no stamp, sometimes because there was no stamp and no
19 signature, sometimes because of the source, sometimes because of 101
21 MR. DI FAZIO: I fully appreciate that.
22 JUDGE AGIUS: The moment you get Mr. Inayat, or whoever it is in
23 this case, who says: I can confirm to the Trial Chamber that this
24 document came from Mr. Subotic himself, handed to our officer on
25 such-and-such a date, that is something that has become known to the
1 Defence and they can regulate themselves accordingly. At that point in
2 time, if they still have reason to contest that document, they will
3 probably proceed. If, as in Brdjanin, they suddenly feel satisfied, since
4 it has come from Mr. Subotic, for example - I'm just inventing a name - at
5 that point in time they can withdraw the objection, and it's less work.
6 MR. DI FAZIO: I fully understand that. I've got no problems with
7 that and Your Honours have fully explained the system that you have in
8 mind and I'm comfortable with that, comfortable with that. There's only
9 just a matter -- a certain number of issues that I thought we need to
10 raise so the matters go smoothly, and that's all I wish to do.
11 Firstly, I understand that the Trial Chamber would be happy if the
12 Prosecution selected a portion of its documents and handled this process
13 at one stage or perhaps at another stage, or possibly, if it's convenient,
14 all of the documents on that day. So the Trial Chamber will leave that
15 matter in the Prosecution's hands, I believe.
16 JUDGE AGIUS: You can also do another thing, which we did in
17 Brdjanin, and which is also -- the first batch that you are going to
18 present here, I would say almost I would require you to have this person
19 to go through those documents. Any further documents that you intend to
20 tender into evidence later on, you can provide the Defence, as we go
21 along, with a list of those documents and the source, provenance. And
22 they would be put on notice, and then Mr. So-and-so, who will be called
23 later on to confirm the provenance, may be required to confirm only the
24 provenance of those documents that the Defence would like to put questions
25 upon or would like to query. In other words, it could be another hundred
1 documents, 80 of which the Defence is satisfied as regards provenance, and
2 Mr. So-and-so would not be required to explain the provenance but he would
3 be required to explain only the provenance of the remaining 20. So it's a
4 question of liaising with the Defence. But for the first batch, please do
5 bring an officer who can enlighten us on the provenance of the documents.
6 MR. DI FAZIO: Thank you, Your Honours. And that immediately
7 raises another issue, because the Prosecution can certainly bring along an
8 officer of the Office of the Prosecution, an investigator who can give you
9 evidence about the provenance, where a document comes from and its chain
10 of custody here into the vaults of the Office of the Prosecutor and so on.
11 That's not a problem. We're already working on doing that. However, this
12 officer did not seize each and every document. Obviously many officers
13 did, and she will be providing, I hope, evidence of various other officers
14 and their seizures and where and when and so on. And that would be in the
15 form of a spreadsheet. I warned the Defence because I don't want to come
16 here on the day, introduce the officer as a witness and hear an objection
17 from the Defence: You weren't personally involved, how can you speak
18 about those matters? If that is going to happen, that immediately raises
19 a problem. The Prosecution can deal with it, but we need to know now or
20 very soon, because I can see that arising. I just raise that.
21 JUDGE AGIUS: Yes, Mr. Jones or --
22 MR. JONES: Yes. That would be a matter for cross-examination,
23 depending on who the Prosecution call.
24 JUDGE AGIUS: The thing is, if the officer would come here and say
25 this I can confirm because I have consulted with Ms. or Mr. So-and-so from
1 the Office of the Prosecution that actually retrieved this document, et
2 cetera, what we want is someone who is responsible enough to give us the
3 information. Now, if that information calls for further information,
4 we'll come to that if needs be. But if we don't need to come to that, we
5 won't come to that. It depends on the reaction of the Prosecution. But
6 you don't need to worry about this at this juncture. I mean, just bring
7 one officer who can at least testify on each and every document from his
8 or her own personal knowledge, original or derived, from further
10 MR. DI FAZIO: I'm grateful.
11 JUDGE AGIUS: And then we will deal with it starting from there.
12 MR. JONES: And just for the sake -- obviously we're not going to
13 exclude the possibility that in cross-examination we'll put to the witness
14 you didn't seize this collection yourself.
15 JUDGE AGIUS: In fact, if the witness hasn't seized the -- that
16 particular document or hasn't retrieved that herself, we would be required
17 to know that. We would want to know that. But then whether we will go to
18 the other person who actually retrieved it or not is a different matter.
19 And the reason is that many of the persons that probably retrieved these
20 documents are no longer in the employ of the Tribunal. This was a problem
21 in Brdjanin. I mean, Mr. Inayat would come here and say this document was
22 retrieved by Mr. Jones, at the time employed on the ground, employee of
23 the Tribunal. Now we don't even know where he is. He left the employ of
24 the Tribunal on such-and-such a day. But the reason why he would know it
25 was Mr. Jones who retrieved document is because it was catalogued. In
1 other words, there is a chain of records here that would lead you to the
2 origin of each and every document. And that's what we are interested in.
3 And then obviously we need to proceed further, we go there.
4 MR. JONES: Just so it's clear from our side - there's obviously
5 no desire to be obstructive - it's because we have doubts about the --
6 some of the sources of the Prosecution documents.
7 JUDGE AGIUS: We will deal with that. So that covers more or less
8 the beginning, the first week. Then we will deal with the authenticity,
9 as we said, as much as we can. After that, you will begin, Prosecution,
10 with your witnesses. I take it you are going to start with Mr. Fagel --
11 MR. DI FAZIO: Yes. Thank you, Your Honours. The issue of
12 authenticity of documents and evidence concerning documents is closely
13 linked to the sequence of witnesses. We know now the Trial Chamber's
14 desires and the sort of evidence it wishes to hear first. Do Your Honours
15 have before you a document I prepared which contains essentially the
16 witness sequence list?
17 JUDGE AGIUS: Yes.
18 MR. DI FAZIO: If you look at that document, you'll see that,
19 number one, she is the person who will deal with precisely the matter you
20 just raised, provenance. Number 2 and 3 are witnesses who deal with a
21 very limited matter, namely, the known signatures, certain signatures of
22 the accused. And then numbers 4 and 5 are the witnesses who will deal
23 with their analysis of documentation in the Prosecution case, partly using
24 the known signatures that were obtained by the other two gentlemen, 2 and
25 3, as you can see there.
1 There are -- there is absolutely no problem with witness number 1,
2 and the schedule that Your Honours envisage fits in with that and we can
3 accommodate the Trial Chamber. I believe it was on the second day that
4 you would like that testimony to take place, which would take us to the
5 Friday, I believe.
6 JUDGE AGIUS: It would be the third day, starting on the third
8 MR. DI FAZIO: Third day. Yes. On the Friday. Yes. On the 8th.
9 On the 8th. That is so.
10 We then have a problem in that our expert, Dr. Gow, is available
11 starting on the Monday, and he -- although I understand there is a degree
12 of flexibility that he may have during that particular week. However, at
13 this stage, he understands that he is to start his evidence on the Monday.
14 Number 3 on the list is now a police officer living in Australia.
15 To get him here at that sort of notice is not necessarily that easy a
16 task. In addition, number 4 is an expert who is currently on holidays and
17 we haven't even had a chance to contact him, and he's back on the 1st of
18 October. So we have some problems with getting all of these people who
19 touch upon these subjects here at the one time and flowing in their
20 evidence one after the other, in addition to which we have, of course, the
21 problem that Dr. Gow, we very much hoped to put him on at the beginning
22 and he also has his personal commitments and that would inevitable cut
23 into the smooth and orderly sequence.
24 So we can accommodate the Trial Chamber to a large extent, but we
25 do have some of these problems and we ask for the Trial Chamber's
2 JUDGE AGIUS: You certainly, I can assure you, you will not
3 encounter difficulties, Mr. Di Fazio. I mean, we understand that these
4 problems will occur as we go along, and you will -- provided that they are
5 not self-inflicted, we will cooperate. There's no question about that.
6 MR. DI FAZIO: If Your Honours please, it may be that the Defence
7 might be minded, for example, to consent to the evidence of Keli [phoen]
8 and Teda [phoen], numbers 2 and 3, going in. Their evidence is very
9 limited. Essentially, I saw the accused write, here are the documents,
10 here is his signature, here are the documents that he wrote on. That's
11 the nature of it and that's as far as it goes. I don't know if they're
12 minded to agree to that or not. But in any event, that's the problem.
13 So could I suggest to the Trial Chamber that we do call number 1
14 on the day that you suggested and she will be the person who gives
15 evidence about the provenance of the documents. Then call our expert, Dr.
16 Gow, and then as soon as we can thereafter, as soon as we can thereafter,
17 call the -- all the other people who touch upon the issues of documents.
18 JUDGE AGIUS: Mr. Di Fazio, that's your problem. We will not tell
19 you how to proceed, which witness to bring first, which witness to bring
20 second. That's not our job. That's up to you.
21 MR. DI FAZIO: Yes.
22 JUDGE AGIUS: What I suggest is that you have chit-chat with the
23 Defence on that and then what we require only is that you keep us
24 informed. That's all. Because we too have to prepare ourselves.
25 MR. DI FAZIO: Certainly. Your Honours, may I just say, in my
12 Blank page inserted to ensure the pagination between the English and
13 French transcripts correspond
1 comments we're saying this: This is essentially the basic sequence of
2 witnesses that the Prosecution wants to present. We will do our level
3 best to get witnesses who talk about documentation here as soon as we can,
4 early in the trial, but we ask that the Trial Chamber bear with us at this
6 JUDGE AGIUS: Definitely.
7 MR. DI FAZIO: Thank you.
8 JUDGE AGIUS: Definitely.
9 This brings me to an issue that I know was raised during the 65
10 ter meeting on which I will dwell very shortly. Each of these witnesses,
11 with the exception of the experts, et cetera, would have given statements
12 to the Prosecution in the course of the years that preceded this trial.
13 Now, I come from a jurisdiction where we would hear the evidence of the
14 witness and we would not have at our disposal any witness statement made
15 prior to the trial. As I said, that makes sense, first of all, where it
16 is the rule, as it is in my country. And it makes sense also where you
17 have a procedure, a system in place which would ensure in any case that
18 when the case comes to trial, the Presiding Judge, with or without a jury,
19 would have at least the committal proceedings at his disposal. Over here,
20 you get a list like this showing Miladin Sic [phoen] giving evidence.
21 It's true, we also have very short, succinct summary of what supposedly
22 this gentleman is supposed to testify upon. But we come here and
23 basically we are the last -- the least persons to know what this gentleman
24 is going to testify about.
25 This is a matter that has been discussed at length amongst us
1 Judges, the permanent Judges and the ad litem Judges of this Tribunal over
2 the time, and the approach is that there is no hard and fast rule that
3 should be adopted. There are a lot of advantages that can be gained by
4 the trial Judges if they have at their disposal, not in the beginning, but
5 as we go along, staggered, okay, week after week, a copy of the witness
6 statements, for various reasons. First of all, certainly not because we
7 want to influence ourselves negatively. We are three expert, experienced
8 Judges, I mean, so we are not a jury. We are -- in other words, the
9 reason why we require these to be made available is that we know
10 beforehand what the witness is going to testify about, what he stated to
11 the offices of the Prosecution, and then as we go along, we can actually
12 make a better assessment of where we are and we would know also if it's
13 the case of us putting some questions or not. In many cases, basing
14 myself on my past experience, you end up having to look at these witness
15 statements in any case, because sometimes it's the Prosecution that would
16 refer the witness to the previous witness statement, sometimes it's the
17 Defence that will refer him.
18 So the position taken is the following: That I discussed this
19 with Judge Brydensholt and Judge Eser. I explained to them what the
20 position is in this Tribunal. I told them what my preference is, even
21 though I come from a jurisdiction when this is not done, I still see a lot
22 of benefits in it in this Tribunal. And I told them that they are free to
23 decide individually, on an individual basis. It's not something that I
24 can put in place or ... And the decision is that each one of us requires
25 them to be handed to us on a regular basis, on a weekly basis. Now,
1 whether we will all read them or whether only some of us will read them,
2 that is a question that we will decide amongst ourselves. It may well be
3 that one of us or more than one of us will not read them. But it's a
4 question of we need to have them at our disposal, not in one bulk, as I
5 said, please, because that would create problems. If next week it's
6 Mr. Zivanovic who is going to come and give evidence, let us have a copy
7 of his witness statements, if there are any, the week before. Also
8 sometimes it happens - and I need to make myself clear - sometimes -- not
9 sometimes. The Prosecution usually brings these witnesses a few days
10 before they are about to testify, and they are briefed and sometimes they
11 release new statements. On many occasions, you get new witness statements
12 a day or two before they come here to give evidence. In that case, I would
13 like the Prosecution to do its utmost to disclose them to the Defence as
14 early as you can. I know that sometimes it's -- there is very little
15 time. Many a time this is done over a weekend. I am aware of that. But
16 I appeal for your cooperation, the utmost that you can do, please, because
17 sometimes they will be taken by surprise, come here and know that witness
18 so-and-so has actually released another statement 24 hours before coming
19 here to give evidence.
20 So these are problems that I would like you to be very transparent
21 in your interrelationship, okay?
22 CaseMap. CaseMap. Yes. We are very happy to cooperate with you,
23 whether it's CaseMap or whether it's Sanction. Please feel free to make
24 the best use of these two systems. What I would like to ask you is if you
25 could kindly both, the Prosecution and Defence, if you have all your
1 documents already compiled, as you obviously have, whether you could
2 furnish on CD-ROM to our staff a copy of the documents beforehand, so that
3 we will be in a position to make the best use we can in the course of the
4 trial. Okay?
5 MR. JONES: I'm not sure if we actually have our documents that
6 organised electronically.
7 JUDGE AGIUS: I don't know, but once you have them, please.
8 MR. JONES: What we could certainly do is when we present a
9 document or an exhibit to a witness, provide an electronic copy
10 simultaneously, but we certainly haven't even formed a view as to which
11 documents we're going to be using. We'll certainly do it as the court
13 JUDGE AGIUS: One of our staff will liaise with you.
14 MR. JONES: Fine.
15 JUDGE AGIUS: The other thing is this: Again, you should take it
16 as a guideline from now, that when you are filing a document into --
17 you're tendering it into evidence, please make sure that you provide us
18 with a hard copy and also with an electronic copy. When I say provide us,
19 not directly to Judge Eser or Judge Brydensholt and myself. I mean, you
20 know the procedure. But please try to ensure that we are provided also
21 with an electronic copy of it, okay?
22 MR. DI FAZIO: If Your Honours please, just one issue that arises
23 from the point that Mr. Jones raised. I take it from his comment that
24 there's a possibility that documents will be produced I assume during the
25 course of cross-examination to Prosecution witnesses. Does the Trial
1 Chamber have any view as to when the Prosecution might receive those
2 documents; as and when they're produced to the witness in the box or
4 JUDGE AGIUS: Yes, Mr. Jones.
5 MR. JONES: We're rather in Your Honour's hands as far as that's
6 concerned. It's also a matter which we'll be reviewing during the course
7 of examination-in-chief which documents to present.
8 JUDGE AGIUS: Yes, exactly. The problems that I envisage only
9 relate to the fact that you brief your witnesses before you bring them
11 MR. DI FAZIO: I understand what you say about -- no problem.
12 JUDGE AGIUS: Yes. Briefing. But in the sense that if -- I would
13 -- in the normality of cases, I would ask the Defence to disclose to you
14 documents which they intend to make use of in relation to a particular
15 witness. On the other hand, I mean I don't want to involve the Trial
16 Chamber too much in that, because, as I said, I mean, a system is in place
17 here which is normally not in place in national jurisdictions. I don't
18 know, but let's play it by the ear and we see how we go along. Yes --
19 MR. JONES: Your Honour, it may be in many cases that the
20 documents we would be using are already in the Prosecution's possession.
21 If we were to provide all the documents which we think we might use before
22 we cross-examine a witness to the Prosecution, it could rather radically
23 change the whole nature of the adversarial proceedings. They would
24 anticipate those documents being used and would deal with them beforehand
25 and it would be impossible for us to plan.
1 JUDGE AGIUS: That's the whole purpose of disclosure. But the
2 thing is you do not have a legal obligation to disclose, while the
3 Prosecution does. So this is -- one has to balance ... I'm afraid to get
4 the Trial Chamber involved in this beyond what I have said, Mr. Di Fazio.
5 MR. DI FAZIO: Thank you, Your Honour.
6 JUDGE AGIUS: Because of the system that we have in place, you
7 know. I mean, it's ...
8 I won't say more than that. But there are -- yes. The pre-trial
9 brief of the Defence. Now, let me find it. Yes. Could I refer you --
10 these are matters that were not raised in the 65 ter meeting because of
11 time constraints. Mr. Wubben, do you have the Defence pre-trial brief
12 handy? Okay. Can I take you to paragraph 25, please. We are not going
13 to deal with these issues now. I'm going to ask you -- you may sit down,
14 actually, Mr. Wubben, because you're not going to be asked to give an
15 explanation today. I'm just pointing out the following paragraphs which
16 you can read later on. And we will give you, say, two weeks from now to
17 possibly address these problems that have been raised by the Defence. In
18 paragraph 25 of the Defence pre-trial brief, they refer you to your
19 paragraph 38 of the Prosecution brief and suggest that there is no source
20 for the proposition set out in your -- so please go through that, because
21 the Defence is not accepting it and we would like to know what your
22 position is in regard. That's number one.
23 The second is in paragraph 34. Here the Defence raises the
24 following matter: They refer to a part of your pre-trial brief in which
25 you quote, mention, quote Bosnian Serb women and children. The Defence
1 submits that no crimes against Bosnian Serb women and children are charged
2 in the indictment against their client. Anyway, they make a submission.
3 Please look into this matter in the two weeks that you will be given, try
4 to come back with an explanation or with some kind of remark.
5 Next is contained in paragraph 59 of the Defence pre-trial brief.
6 Again, this is self-explanatory. I needn't go into details now because it
7 will take me another five minutes. It's paragraph 59. Please try to
8 address it in your response.
9 Then it's paragraph 65. Again, your attention is being drawn to
10 the Defence position, something that they allege that should not be in the
11 indictment and should be struck off from the Prosecution brief. I don't
12 know how much -- how important it is to have it struck off from the
13 Prosecution brief. It doesn't bind the Trial Chamber. But in any case,
14 please go into that and come back with a response.
15 And the next paragraph is paragraph 66, which is immediately
17 Again, those are the five paragraphs that call for some kind of a
18 response from the Prosecution, in our opinion. We are giving you two
19 weeks. We think it's sufficient. If it's not sufficient, we'll obviously
20 extend the time, as required. Yes, Mr. Wubben.
21 MR. WUBBEN: Yes, Your Honour. I was raising prior to your
22 remarks in this regard because, with a view to those five issues, I
23 prepared orally a submission and clarification. That will take us about
24 eight, ten minutes. So I took the time to perhaps to enable you to
25 address other issues, because I noticed that the Senior Legal Officer at
1 the 65 ter conference indeed stipulated --
2 JUDGE AGIUS: Can you have them reduced in writing?
3 MR. WUBBEN: Okay.
4 JUDGE AGIUS: That will spare us. I mean, it's not a big job, I
5 think. If you have the notes already, you can easily have them translated
6 into a proper format.
7 MR. WUBBEN: Yes. I will make a written submission.
8 JUDGE AGIUS: I think it will be helpful.
9 MR. WUBBEN: Thank you.
10 JUDGE AGIUS: Before I proceed any further, are there any other
11 issues that you would like or matters you would like to raise? Because we
12 are soon coming to an end. Are there any other matters that you would
13 like to raise? Mr. Wubben.
14 MR. WUBBEN: Yes.
15 THE INTERPRETER: Microphone, please.
16 MR. WUBBEN: I apologise. There is this matter of the English
17 versions of the intercepts statements you referred to.
18 JUDGE AGIUS: Yes, yes, yes, yes.
19 MR. WUBBEN: And I contacted my case manager and she confirmed to
20 me that it should be disclosed, we should be able to disclose it by the
21 end of the week.
22 JUDGE AGIUS: That's very good. That's very good.
23 Now, before we come to the end, let me make it clear that I have
24 tried, in consultation with Judge Brydensholt and Judge Eser and our
25 precious staff and our secretaries, to put together all the issues that we
1 thought needed to be dealt with during today's Pre-Trial Conference. I am
2 aware that we haven't covered everything. We've covered most things, I
3 think, but there will be other things that will come to your mind, to our
4 mind, and to the Prosecution's mind. This is not the end of the story.
5 If there are any leftovers or other things that you need to discuss, we
6 can either have an additional hearing, which will be a continuation of
7 today's Pre-Trial Conference, before we commence the trial, or we can have
8 them raised and discussed, debated, the first days of the trial. In other
9 words, I'm leaving all these options open. But if you think that there
10 are serious matters to be discussed before the trial commences, then you
11 will find us available, we will hold another Pre-Trial Conference in
12 addition to that of today.
13 Mr. Oric.
14 THE ACCUSED: [Interpretation] Yes, please, Your Honour.
15 JUDGE AGIUS: I have a very short question to put to you, but to
16 us, I can assure you, is of extreme importance. We want to make sure that
17 you do not have any problems with regard to your condition of detention,
18 that, in other words, you're being treated well in the Detention Unit.
19 And we also want to make sure that you do not have any health problems
20 that we should be made aware of.
21 THE ACCUSED: [Interpretation] Your Honour, I have no problems
22 whatsoever. Everything is fine. Everything is all right.
23 JUDGE AGIUS: Thank you. If any problems do arise, your channel
24 of communication is through your lawyers.
25 THE ACCUSED: [Interpretation] I understand. Thank you.
1 JUDGE AGIUS: So, this being so, I think my duty is to thank each
2 and every one of you. You've been extremely cooperative, I must say.
3 It's what also we expected. We can adjourn today. We've managed to
4 conclude the Pre-Trial Conference in one sitting and even before the
5 allocated time. I thank you all, and please God, we will reconvene on the
6 6th of October and start, commence the trial. I thank you.
7 My legal officer will be approaching you now also.
8 --- Whereupon the Pre-Trial Conference
9 adjourned at 6.17 p.m.