Tribunal Criminal Tribunal for the Former Yugoslavia

Page 100

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

21 Henry-Frijlink.

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,

Page 101

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

10 colleagues.

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

Page 102

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

Page 103

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

Page 104

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

Page 105

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

Page 106

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,

Page 107












12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond













Page 108

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

Page 109

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

Page 110

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

Page 111

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

Page 112

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

6 be.

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

23 along?

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

Page 113

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

Page 114

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.

Page 115












12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond













Page 116

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],

23 authenticity.

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

Page 117

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.


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

Page 118

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,

Page 119

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

19 nothing.

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,

Page 120

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

Page 121

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.

Page 122

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

Page 123












12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond













Page 124

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

7 Prosecution.

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

Page 125

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

11 important.

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.

Page 126

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

8 submissions.

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

Page 127

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

Page 128

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,

Page 129

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

Page 130

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

Page 131












12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond













Page 132

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

15 transcript.

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

Page 133

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

23 transcript.

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

Page 134

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 --

Page 135

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

Page 136

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.

Page 137

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

Page 138

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.

Page 139












12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond













Page 140

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.

Page 141

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

10 translations.

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

Page 142

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

Page 143

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

Page 144

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,

14 break.

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

Page 145

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.

Page 146

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?


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.

Page 147












12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond













Page 148

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

Page 149

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.

Page 150

1 JUDGE AGIUS: Yes. Mr. Jones or Ms. Vidovic, do you have any

2 remarks?

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.

Page 151

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

Page 152

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

Page 153

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,

Page 154

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.

Page 155












12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond













Page 156

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

Page 157

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

14 thereof.

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

Page 158

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

Page 159

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

14 evidence.

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.

Page 160

1 And we are not sitting with a jury.

2 MR. JONES: Indeed, Your Honour.


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

Page 161

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

22 exercise.

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

Page 162

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

Page 163












12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond













Page 164

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

20 reasons.

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

Page 165

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

Page 166

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

Page 167

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

9 investigations.

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

Page 168

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?


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.

Page 169

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

7 day.

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

Page 170

1 indulgence.

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

Page 171












12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond













Page 172

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

5 stage.

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

Page 173

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,

Page 174

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

Page 175

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

12 progresses.

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

Page 176

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

3 beforehand?

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

10 over.

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.

Page 177

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

Page 178

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

16 following.

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

Page 179

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

Page 180

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.

Page 181

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.