1 Thursday, 7 October 2004

2 [Open session]

3 --- Upon commencing at 9.02 a.m.

4 [The accused entered court]

5 JUDGE AGIUS: So good morning.

6 Mr. Registrar, could you call the case, please.

7 THE REGISTRAR: Good morning, Your Honours. Case Number

8 IT-03-68-T, the Prosecutor versus Naser Oric.

9 JUDGE AGIUS: Mr. Oric, good morning to you. Can you follow the

10 proceedings in a language that you can understand?

11 THE INTERPRETER: Microphone, please.

12 JUDGE AGIUS: Microphone -- the interpreters are not hearing the

13 accused.

14 Could you repeat, please.

15 THE ACCUSED: [Interpretation] Your Honour, I can understand

16 everything. Thank you.

17 JUDGE AGIUS: Thank you. You may sit down.

18 Appearances for the Prosecution.

19 MR. WUBBEN: Good morning, Your Honour. My name is Jan Wubben,

20 senior trial attorney for the Prosecution together with Ms. Joanne

21 Richardson, Ms. Patricia Sellers, Mr. Gramsci Di Fazio, and our case

22 manager, Ms. Donnica Henry-Frijlink.

23 JUDGE AGIUS: I thank you, Mr. Wubben, and good morning to your

24 team.

25 Appearances for the Defence team?

1 MS. VIDOVIC: [Interpretation] Good morning, Your Honours. Good

2 morning to my learned friends of the Prosecution. I am Vasvija Vidovic,

3 and together with John Jones I represent Mr. Oric. Together with us are

4 Jasmina Cosic, our legal assistant, and our case manager, Mr. Geoff

5 Roberts.

6 JUDGE AGIUS: I thank you, Madam Vidovic, and good morning to you

7 and to the rest of your team.

8 We have got a lot to do this morning. And as I explained

9 yesterday we will start with an expose of the guidelines that this Trial

10 Chamber after due consultation amongst ourselves decided to make known to

11 you. And these guidelines relate essentially to matters of evidence and

12 procedure but also they relate to the conduct that each person present in

13 this room is expected to -- in this courtroom is expected to adhere to.

14 What I will be saying now will be handed down to you subsequently,

15 probably early next week, in writing. In other words, this is the oral

16 decision that we are handing down today. It will be followed by a written

17 version which will reflect what I will be saying in perhaps a little bit

18 more detail and in a more refined manner. Let me first explain to you

19 what this Trial Chamber understands by the term of evidence.

20 This Trial Chamber takes evidence to mean all that information

21 which will be put before us with a view to proving the facts in issue, and

22 we consider such evidence to take different forms. One of the most

23 important forms is testimony, testimony which we can receive viva voce or

24 under some other provision of the rules. Evidence can also take the form

25 of documents which are not tendered in evidence as such as exhibits but

1 they are produced for the inspection of the Trial Chamber. Then we have

2 real evidence, and by real evidence we mean exhibits and other material

3 objects. And last but not least, even though we have got very few of

4 those on the face of it, what we would describe as admissions of fact.

5 But as you both know, there are very few matters on which there is

6 agreement between the parties.

7 In its exercise of deciding on the admissibility of evidence,

8 which is an ongoing and will remain as an ongoing process throughout the

9 entire trial, the Trial Chamber will divide it under categories. Category

10 one would be direct and indirect evidence; category two will be original

11 and hearsay evidence; category three primary and secondary evidence; and

12 last but not least circumstantial evidence. I will be dealing with these

13 categories as we go along. But let me say at the very outset that hearsay

14 and circumstantial evidence will be considered as indirect evidence with

15 the understanding that indirect evidence may at times be as much evidence

16 as direct evidence.

17 With regard to primary and secondary evidence, although the Trial

18 Chamber's -- in the Trial Chamber's mind primary evidence is and will

19 always remain the best kind of evidence, still both types will be admitted

20 when reliability is not in question. So that is the position we are

21 taking. We consider primary evidence as more direct and more significant

22 than secondary evidence, but we are not throwing secondary evidence

23 overboard. We will consider and admit secondary evidence if there is no

24 issue of -- serious issue of reliability.

25 Now, I come straight away to one of the most fundamental

1 principles that will guide the Trial Chamber, and that is the Trial

2 Chamber will recognise and protect -- recognise and observe, keep in its

3 mind at all times Article 21(3) of the Statute of this Tribunal which

4 gives the accused presumption of innocence. This presumption - and I'm

5 saying nothing which is new - this presumption of innocence places on the

6 Prosecution the burden of establishing the guilt of the accused.

7 Basically by this we mean that the Prosecution will have the burden of

8 proving all the facts and circumstances which are material and necessary

9 for -- to constitute the crimes charged and in addition also the accused's

10 criminal responsibility. I wish to make it clear because sometimes this

11 is misunderstood that the burden that I have mentioned remains on the

12 Prosecution throughout the entire trial; it never changes. In accordance

13 with Rule 87(A), the Prosecution must establish the accused's guilt beyond

14 reasonable doubt, and at the end of the trial we will determine whether or

15 not the ultimate result of the ensemble of all the evidence is weighty and

16 convincing enough to establish beyond reasonable doubt the facts alleged

17 and ultimately the guilt of the accused as charged in the indictment. The

18 corollary of the principle that I have just touched upon is that the

19 accused has a right to remain silent and this Trial Chamber will respect

20 at all times that right. As a result we wish to make it clear that

21 silence as such, silence as such, on the part of the accused may not and

22 will not be used as evidence to prove his guilt and may and will not be

23 interpreted at any time as an admission of guilt.

24 In matters of admissibility of evidence, the Trial Chamber

25 recognises that this is a unique Tribunal in which we've had the

1 confluence of various systems, common law principles, continental law or

2 civil law traditions, and there has been a very healthy melange of the

3 procedural mixtures and each Judge that has come forward has brought with

4 him the best parts of the system in which he or she have been brought up,

5 and we have put these practices, these rules of procedure, to the best use

6 possible in this Tribunal. As a result I'm making it also clear - and

7 we've discussed this thoroughly amongst ourselves - that we do not feel

8 ourselves bound or stuck to any particular system, be it the common law or

9 the continental law, et cetera. We have our Rules of Evidence and

10 Procedure, and those are the guiding -- the guidelines that we follow

11 first and foremost. There's also the Statute which more or less also

12 gives us an indication of what we need to follow. But what will be our

13 beacon throughout the whole trial will be our determination to be inspired

14 by the need for a fair determination of any matter that happens to be

15 before us at any given time. So basically if we need to decide on any

16 particular matter that arises, we will decide it not in terms of any

17 particular system of law but according to the rule which we will agree at

18 the time would amount to a fair determination of the matter.

19 We also believe that in the context of our rules the approach of

20 the Statute of the Tribunal -- of this Tribunal and also the approach of

21 the various Trial Chambers that have been dealing with cases here has been

22 to lay down a framework or a structure which is conceived in the broadest

23 terms possible. And in particular, as you know, we started off under the

24 umbrella of the Statute as almost a pure common-law Tribunal

25 here, but we have incorporated a lot from other systems as we went along.

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1 The rules that we will be applying will always and at all times have due

2 regard to the accused's right to a fair and public hearing. As such, we

3 consider ourselves as having -- as carrying the burden, the

4 responsibility, of ensuring that the trial is fair and as expeditious as

5 possible and that the proceedings are at all times conducted in accordance

6 with the rules with full respect to the procedural and substantive rights

7 of your client, Madam Vidovic, but also because this is the responsibility

8 of this Tribunal, but also for the protection of witnesses and victims.

9 We will also keep in our mind the responsibility of this Tribunal

10 to strive in favour and forward in the direction of trying to achieve and

11 promote reconciliation in the territory of ex-Yugoslavia.

12 The question of admissibility of evidence before this Tribunal is,

13 as you know, governed by Section 3 of our rules. I refer you in

14 particular to Rule 89(A) which makes it clear, in addition to what I have

15 stated earlier, that the Trial Chamber shall not be bound by national

16 rules of evidence, whether representing the common law or the civil law.

17 The purpose of the rules is basically to promote a fair and expeditious

18 trial, and the Trial Chamber reserves for itself as much flexibility as

19 possible which it considers necessary in order to be able to achieve this

20 goal.

21 But there are a few items that arise from the common law system

22 which I need to touch upon. In contrast to the common law where questions

23 of admissibility and exclusion of evidence -- where questions of

24 admissibility and exclusion of evidence occupy a very prominent place in

25 criminal proceedings, the 13 provisions, section 3 of our rules, which

1 regulate almost the totality of evidentiary matters and proceedings do not

2 contain a detailed set of technical rules relating to this issue. As

3 such, we interpret this as an indication that in establishing the set of

4 rules in section 3, this Tribunal made sure that each Trial Chamber is not

5 hindered in its search for the truth. Indeed, in our opinion, the most

6 important rule in this context is Rule 89 itself, which lists the general

7 evidentiary provisions. In subrule (B) of that Rule provides that: "In

8 cases not otherwise provided for in this Section, the Chamber shall apply

9 rules of evidence which shall best favour a determination of the matter

10 before it and are consonant with the spirit of the Statute and the general

11 principles of law."

12 We also look at subrule (C) of Rule 89 as permitting the Chamber

13 to admit any relevant evidence with probative value. Subrule 89(E) allows

14 a Trial Chamber to request verification of the authenticity of evidence

15 obtained out of court. It is clear that the approach adopted in the Rules

16 is one that favours the admissibility of evidence provided it is --

17 provided it is relevant and has probative value. Irrelevant evidence must

18 be and will be excluded in a most unequivocal way. And this we are

19 determined upon because it is in the interest of a fair and expeditious

20 trial.

21 These considerations - which are not something which the Trial

22 Chamber is stating for the first time, by no means - have resulted in a

23 generally uniform tendency of the various Trial Chambers of this Tribunal

24 towards admitting evidence in the first place, leaving its weight to be

25 assessed when all the evidence is being considered by the Trial Chamber in

1 the deliberation of its final decision. This will, therefore, in

2 principle be the practice of this Trial Chamber.

3 Another conspicuous practice that has been followed by the Trial

4 Chambers of this Tribunal, and which will be followed also by this Trial

5 Chamber, is that the general rules relating to the exclusion of evidence

6 applied in common law systems, such as you Mr. Jones, and I used to, will

7 not be followed as a rule. The main reason for this is very obvious -- or

8 should be very obvious for you and also for anyone coming from such

9 jurisdictions, these rules, in their essence, have been mostly developed

10 within a context of a system of trial by jury, which is not the case here,

11 as you know. In a trial-by-jury system, there is always the absolute and

12 imperative need to keep away from the lay jurors prejudicial material of

13 little or of no probative value which may be difficult to remove from

14 their minds once they have heard it or seen it, as anyone who has presided

15 over trials by jury, like I have, know very well. Therefore, please do

16 remember at all times in your submissions on probative value and

17 relevance, et cetera, that you are dealing with professional Judges with

18 baggage of experience, considerable experience that we have each brought

19 with us here and that we are not lay jurors. This Trial Chamber -- for

20 this Trial Chamber this is very, very important.

21 I come to the guidelines proper, and I will be dealing first with

22 a set of guidelines that relate specifically to the admissibility of

23 evidence. The first guideline that you should bear in mind in the course

24 of this trial is that there is a basic distinction which is very clear to

25 us between the legal admissibility of documentary evidence and the Trial

1 Chamber's ultimate judgement as to its weight.

2 The second guideline is that we are telling you that we will

3 reject evidence if we are not satisfied of its relevance and probative

4 value. Basically this brings me or leads me straight to the burden of

5 proof with respect to relevance and probative value. The position we will

6 be taking is that the burden of proof with respect to these two issues,

7 relevance and probative value, lies with the party or on the party seeking

8 to introduce a particular piece of evidence. However, we make a

9 distinction between Prosecution and Defence. The Trial Chamber will

10 follow the principle that the Prosecution must prove relevance, probative

11 value, and reliability of evidence it seeks to bring into -- or evidence

12 it seeks to bring forward beyond reasonable doubt if that issue comes up,

13 whereas the Defence is only required to prove the admissibility of its

14 evidence on the balance of probabilities.

15 The third guideline is that the mere - and this we need to make

16 very clear with you - the mere admission of a document into evidence does

17 not in itself signify that the statements contained in that document will

18 necessarily be deemed to be an accurate portrayal of the facts.

19 Factors -- in addition, factors such as authenticity and proof of

20 ownership will naturally assume great importance in the Trial Chamber's

21 final assessment of the weight to be attached to each and every individual

22 piece of evidence.

23 We agree and we want you to know that the threshold standard for

24 the admission of evidence in terms of introducing it into the proceedings

25 should not and will not be set excessively high. And this is in line with

1 the practice assumed by the majority of Trial Chambers in this Tribunal.

2 We have chosen this approach - in other words, of not setting an

3 excessively high threshold for the admission of evidence - because we

4 consider that many a time documents are sought to be admitted in evidence

5 not as the ultimate proof of guilt or innocence but to prove -- but to

6 provide a context and perhaps a more complete picture presented by the

7 evidence in general.

8 The fourth guideline: The fact that we may at some point in the

9 course of the proceedings rule for or against the admissibility of some

10 particular document or other piece of evidence will not present us from

11 reversing that ruling at a later stage, particularly if further evidence

12 emerges which is relevant to the admissibility of that piece of evidence

13 exposed. So this is a right which is, I consider, an inherent right which

14 we will reserve for ourselves throughout the entire process.

15 Next guideline. When objections are raised on grounds of

16 authenticity -- and we are mentioning this now because this is one issue

17 that we will be dealing with at the very early stages of this trial. So

18 when objections are raised on grounds of authenticity, the Trial Chamber

19 will follow the practice this Tribunal has previously adopted and my Trial

20 Chamber has previously adopted in the other cases in which I have sat;

21 namely, to admit documents, video recordings, and even telephone

22 intercepts unless the admission of these pieces of appears to be

23 manifestly inappropriate to do. And then everything goes in a big basket

24 that we will have -- we will be carrying with us to the end of this trial

25 when we will consider the whole of the evidence tendered and decide what

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1 weight to give to the -- to each and every one of the documents tendered

2 as well as to the ensemble of the evidence.

3 There is no blanket prohibition and there will be no blanket

4 prohibition on the admission of documents simply on the grounds that their

5 purported order has not been called to testify. Similarly we also want to

6 make it clear that an unsigned and unstemmed document does not a priori

7 render it void of authenticity in the mind of this Trial Chamber. Factors

8 such as proof of authorship will naturally assume great importance as we

9 go along, and these are matters, together with authenticity, that we will

10 determine in the final exercise of this Trial Chamber before rendering its

11 final judgement.

12 And I come now to hearsay evidence. Again, this is a major

13 departure from what Mr. Jones and myself and you, Ms. Sellers, and others

14 are used to. The practice of this Tribunal with regard to hearsay

15 evidence is much more -- which is much broader than it is in common law

16 jurisdictions. I prefer to address this matter by referring to what is

17 now considered to be a classic pronouncement by this Trial Chamber -- by

18 this Tribunal, and I'm referring to the dictum of the Appeals Chamber in

19 the Aleksovski appeal judgement. Basically it is well-settled in the

20 practice and in the jurisprudence of this Tribunal that hearsay evidence

21 is admissible. And after having been here for three years, I honestly

22 believe that there is no way such trials could proceed and bear fruit

23 either way for or against the Prosecution or for or against the accused,

24 unless we admit hearsay evidence. Basically this means that relevant

25 out-of-court statements which we consider probative will be admitted

1 because they are admissible under Rule 89(C). I refer you to what was

2 stated in Aleksovski, but I see that we have quite an audience in the

3 gallery and perhaps it might be worth repeating the words of the Appeals

4 Chamber.

5 The Appeals Chamber stated in Aleksovski that: "The Trial

6 Chambers have a broad discretion under Rule 89(C) to admit relevant

7 hearsay evidence. Since such evidence is admitted to prove the truth of

8 its contents, the Trial Chamber must be satisfied that it is reliable for

9 that purpose, in the sense of being voluntary, fruitful, and trustworthy

10 and also appropriate. For this purpose the Trial Chamber may consider

11 both the content of the hearsay statement and the circumstances under

12 which the evidence arose."

13 Or as Judge Stephen described it: "The probative value of a

14 hearsay statement will depend upon the context and the character of the

15 evidence in question. The absence of the opportunity to cross-examine the

16 person who made the statements and whether the hearsay is firsthand or

17 more removed or more remote are also relevant to the probative value of

18 the evidence. The fact that the evidence is hearsay does not necessarily

19 deprive it of probative value. But it is acknowledged" - and this is very

20 important to remember, both of you - "that the weight or value to be

21 afforded to that evidence will usually be less than that given to the

22 testimony of a witness who has given it under a form of oath" - and in our

23 system, under solemn declaration - "and who has been cross-examined,

24 although even this will depend upon the infinitely variable circumstances

25 which surround hearsay evidence."

1 I come now to what in common law jurisdictions is referred to as

2 the best rule, which today is a far cry from what it used to be in years

3 past. In determining the matters before this Trial Chamber and issues

4 before this Trial Chamber, the so-called best evidence rule will be

5 applied provided that such evidence is evidently available. And you all

6 know that we are dealing with cases where it is very difficult sometimes

7 to obtain what would be considered as the best evidence. This essentially

8 means that the Trial Chamber will, where possible, rely on the best

9 evidence available in the circumstances of the case, and the parties are

10 directed to regulate the production of their evidence along these lines

11 when possible. What is the best evidence will of course depend on the

12 particular circumstances attached to each document and the complexity of

13 this case and the investigations that preceded it as well as the

14 difficulties that this Tribunal sometimes encounters in its efforts to

15 acquire documents and other pieces of evidence. The Trial Chamber is also

16 aware that this rule has lost much of its importance in some common law

17 jurisdictions and we will consequently, in applying the residues of this

18 best evidence rule, exercise our discretion in the spirit that lies at the

19 basis of this Statute and our Rules.

20 I have a final word on circumstantial evidence. This will -- we

21 will obviously return to in the final judgement, but we were torn between

22 the idea of whether we should mention it now or whether we should just

23 leave it and then tell you later how we considered circumstantial

24 evidence. We decided to include it now as part of the guidelines,

25 although strictly speaking it is not a guideline in itself. But it is an

1 information that we are giving you so that you would be able to know what

2 importance to attach to circumstantial evidence which, as in all other

3 trials that I am aware of, will be important in this case as well.

4 We consider circumstantial evidence as being that evidence of

5 circumstances surrounding an event or an offence from which a fact at

6 issue may be reasonably inferred. We realise that many a time crimes are

7 committed when witnesses are not present and since in criminal trials,

8 especially in cases like the ones before this Tribunal, the possibility of

9 establishing the matter charged by direct and positive testimony of

10 eyewitnesss or by conclusive documents is more often than not problematic

11 or outright unavailable. Circumstantial evidence may become a critical

12 ingredient in a trial, and this I say both in respect to your case and in

13 respect to your case. Circumstantial evidence, as we may well experience

14 in this case, may assume great importance.

15 The individual items of such evidence may by themselves be

16 insufficient to establish a fact, but taken together their collective and

17 cumulative effect may be very revealing and sometimes decisive. And we

18 are telling you this in order to prepare you, because at the end of the

19 trial when we embark on our deliberations, on our final exercise, we are

20 going to put together the circumstantial evidence that would have been

21 brought forward -- put to us in the course of the trial, and these are the

22 principles that we will be adopting. We believe also that it is no

23 derogation of evidence to say that this or that piece of evidence is

24 circumstantial. So do bear this in mind, please. Therefore, we will not

25 consider circumstantial evidence to be of less substance than direct

1 evidence, and that is a matter -- as a matter of principle.

2 We wish also to draw your attention to Rule 95 of our Rules of

3 Procedure and Evidence which provides that evidence which is obtained by

4 methods which cast substantial doubt on reliability or evidence that is

5 antithetical to or would seriously damage the proceedings is not

6 admissible, and we will take a very firm stand if anything of this sort

7 emerges in the course of the trial. The Trial Chamber makes it clear at

8 the very outset that statements which are not voluntary but are obtained

9 from suspects by -- or even by prospective witnesses by oppressive conduct

10 cannot pass the test under Rule 95 and will not be admitted. Naturally

11 the burden of proving that a statement was voluntary lies on the party

12 seeking to introduce it, whereby the standards discussed already earlier

13 on which I referred you to will be applicable.

14 If one reads the various rules or some of the rules under

15 Section 3 of the Rules of Procedure and Evidence, one gets the impression

16 that the rules implicitly require that reliability be a component of

17 admissibility, and indeed following previous case law of this Tribunal on

18 this matter, we want you to know that we agree completely that reliability

19 is indeed an inherent and implicit component of each element of

20 admissibility. This is particularly so within the context of hearsay

21 evidence that I mentioned to you earlier. Because if hearsay evidence

22 which is offered is unreliable, then it can neither be relevant nor have

23 probative value; therefore, such evidence, if we come across it, will be

24 inadmissibility in terms of subrule 89(C). However, this is restricted

25 only to hearsay evidence; I'm making it clear.

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1 With regard to other documentary evidence, we wish to make it

2 clear that the determination of the issue of reliability when it arises

3 should not be and will not be seen as a separate first step in assessing a

4 piece of evidence of it for admission. In other words, we will make a

5 distinction in the importance as a prerequisite that we attach to the

6 element of reliability. Whether we are dealing -- depending on whether we

7 are dealing with hearsay evidence or other types of evidence. With regard

8 to other types of evidence, particularly documentary evidence which is not

9 tendered as hearsay, reliability will not be considered as a first step in

10 assessing whether that document should be admitted or not. Therefore the

11 notion of establishing indicia of reliability ought not to be confused

12 with having admissibility predicated on proof of reliability. If we were

13 to adopt a different system, we would be making room or leaving room for

14 you to evade the well-established case law of this Tribunal.

15 We wish to remind you that we consider ourselves to be the

16 guardians of the procedural and substantive rights of the accused. The

17 accused can remain assured that we will protect these procedural and

18 substantive rights at all costs throughout the entire trial. A trial, as

19 you know, is more often than not a very complex journey in search of the

20 truth. And as such, we considered that questions of admissibility of

21 evidence do not arise only when one of the parties raises an objection to

22 a particular piece of evidence sought to be brought forward by the other

23 party. There may be other instances where we would feel the need to

24 intervene ourselves. Naturally -- I mean I want to make it clearly also

25 that when there is no objection to the authenticity of a document, the

1 task of admitting that particular document will be made much easier.

2 However, this Trial Chamber has an inherent right and duty to ensure that

3 only evidence that qualifies, which qualifies for admission under the

4 rules, will be admitted. Therefore, it may turn out to be necessary from

5 time to time - and this did happen in other cases in which I was

6 involved - the Trial Chamber will, if necessary, intervene ex officio to

7 exclude from these proceedings those pieces of evidence which in our

8 opinion, for one or more of the reasons laid out in the rules, ought not

9 to be admitted in evidence. I hope we have made ourselves clear on these

10 issues.

11 Having touched on matters of admissibility, I come to the end.

12 These may sound to you as matters that need not be raised, but in every

13 trial there are incidents. I have learned during my stay here that not

14 only Judges come from different systems, but also members of the staff,

15 legal officers, registrars, and counsel come from different. And there

16 are some matters that we feel very strongly upon, particularly as regards

17 contacts with the Trial Chamber and with our staffs -- members of our

18 staffs as well as the relations that we expect amongst yourselves

19 throughout the entire conduct. So forgive me if I am going to repeat what

20 you already know and what you already believe in, but they will be put on

21 record, this is what we expect.

22 We work in a system where, as you know, ex parte meetings between

23 the Trial Chamber - and, could be the Prosecution, could be the Defence,

24 you have the right to ask for ex parte meetings as well - are possible.

25 Now, these are possible because they have been introduced in the procedure

1 of this Tribunal and recognised as such. When a -- one of the parties

2 seeks an ex parte meeting with the Trial Chamber, the other party will be

3 informed. There is no way that we will hold an ex parte meeting with you,

4 for example, without informing the Prosecution that we are having an

5 ex parte meeting with you; and there is no way we will hold an ex parte

6 meeting with the Prosecution without informing that we have an ex parte

7 meeting with the Prosecution.

8 There is also the practice that if, say, the Prosecution have

9 filed an ex parte motion, they will also inform you that they have filed

10 an ex parte motion. We require this as a practice to be adopted without

11 exception. It does not mean that you need to tell the other party what

12 the contents of the motion are, because most of the time these matters

13 relate to the personal safety and security of some individuals and need to

14 be treated with the utmost confidentiality. But, in other words, in

15 meeting with requests from either of you for ex parte meetings, we might

16 want to assure you that this will be done in the most transparent manner.

17 That's rule number one.

18 We require from each one of you, all members of the Prosecution

19 team, all members of the Defence team, to demonstrate the utmost respect,

20 integrity, and courtesy to all the officers of this Trial Chamber and of

21 the Tribunal and the staff members of the Trial Chamber. And not only

22 that, we have here with us interpreters, technicians. These individuals

23 work hard. They have a very difficult job, particularly the interpreters.

24 We request of you hat at all times we respect them as individuals and also

25 the hard work and the long hours in which they are required to work.

1 There will be hitches, there will be problems, there will be problems also

2 with interpretation, but the approach is the most important part of it.

3 The interpreters have a difficult task; they are here to help us.

4 Sometimes mistakes happen. We have to be patient, we have to be tolerant.

5 Many a time we will be calling on them to stay with us a few extra

6 minutes, and infallibly we have found the cooperation of both the

7 interpreters and the technicians. So, please, respect and courtesy ought

8 to be the rules of the road.

9 The parties are reminded that you should not try to influence in

10 any way or communicate with any one of us, any of the three Judges, with

11 any of our officers, and with any of our staff - legal staff in

12 particular - by means which are prohibited by Statute or by the rules, or

13 by the rules -- respective rules of professional conduct. You have your

14 own. The Office of the Prosecution have got their own set of rules of

15 conduct. So I need not preach on what these -- the applicable rules are,

16 I'm just reminding you and I will not say anything further.

17 Naturally there will be the need to communicate on several

18 matters, like administrative matters, like housekeeping matters, like

19 giving prior notice that a motion is to be expected, or handing a

20 complementary advance copy of a motion. There are many instances where

21 there must be some kind of communication, liaison, between our staff and

22 either the Prosecution or the Defence. The rule of the road is no abuse

23 of any of the channels of communication that become necessary as we go

24 along. The legal staff, our legal staff, are fully aware of these rules.

25 I don't need to preach to them either because they have these rules set

1 out since a long time ago.

2 In your relations we expect each party to recognise the

3 representatives of the other party as professional colleagues first and

4 foremost and not only as adversaries. And we expect you to act fairly,

5 honestly and courteously towards one other; that's important. And we will

6 intervene if at any time this comes short of our expectations. It does

7 happen. There will be moments of tension, there will be moments of

8 attrition sometimes. But, please, always try to keep calm, moderate your

9 words, and maintain fairness, honesty, and courtesy towards one another.

10 Last but not least, I left it to the very end, not because it is

11 not important but because we attach a lot of importance to it. We request

12 of you that you do not resort to any means that have no other substantial

13 purpose than to embarrass, delay, or burden the Victims and Witnesses

14 Unit. We will not allow you to use coercive or other methods of obtaining

15 evidence in the course of testimonies here, other coercive or in any other

16 manner which is not acceptable to us. Many a time we will be dealing with

17 persons that have past experienced severe trauma in their lives, traumas

18 that none of us have had to face in our respective lives, and in addition

19 giving evidence on those events is an added trauma. So you have every

20 right to put questions, both Prosecution and Defence, but you also have a

21 corresponding duty to be courteous to these witnesses, especially if they

22 happen to be witnesses, victims.

23 So that brings me to an end of the guidelines. If -- before

24 proceeding to other matters, if there are matters, issues, that you would

25 like to raise arising out of these guidelines which will be handed down to

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1 you in writing, as I said, early next week, polished a little bit and

2 handed down formally to you. But if there are any matters that you would

3 like to raise now or remarks you would like to raise now, make now, please

4 feel free to do so, in which case we will proceed to the rest of the

5 agenda of today.

6 I see none.

7 So we will proceed to what I described yesterday as -- in very

8 broad terms as housekeeping matters which are necessary to deal with and

9 dispose of before we start with the first witness. Ideally, as I

10 explained to you both during the pre-trial conference and yesterday, some

11 of the issues that we have outstanding should have on paper been dealt

12 with at the pre-trial stage, but they couldn't. And in addition, several

13 other issues arose both within the same time -- at the same time frame of

14 the pre-trial conference and subsequently with the result that we find

15 ourselves starting this trial with a significant number of pending

16 motions. I will be appealing to the cooperation of both the Prosecution

17 and the Defence today to make it possible for us to determine or to decide

18 some of these motions orally today, and if the motions are such that would

19 call for follow-up by means of a written decision, we will do so,

20 otherwise we will remain with the oral decision.

21 For example, I learned yesterday that with regard to the motion

22 for protective measures, there's only one witness that you have

23 objections, the rest you don't. So I take it that we should be in a

24 position to decide at least with respect to those other witnesses where

25 there is no objection. And this is how I intend to proceed along this

1 morning.

2 Let's start with the first outstanding motion. And members of the

3 public will notice when I mention the dates why these motions are still

4 pending. The first motion is a confidential Prosecution motion for leave

5 to amend the Prosecution list of witnesses. This was filed on the 28th of

6 September. You know that while this case was still before Trial

7 Chamber III, there was a motion by the Prosecution to have some witnesses

8 added to the list; that was granted by the previous Trial Chamber. Then

9 subsequently the Prosecution came up with -- is there a problem, Madam

10 Vidovic? Okay.

11 Then the Prosecution came up with a fresh motion to which the

12 Defence responded on the 1st of October. As discussed yesterday, the

13 witness statements have now finally been disclosed to the Defence. So I

14 presume at least, if I read your objection properly, Mr. Jones and Madam

15 Vidovic, that this being so, now that the witness statements have been

16 disclosed to you. We do not really have any substantive objection on your

17 part which would make it impossible for us to proceed along the lines of

18 the motion of the Prosecution. If you confirm this to me, then we can

19 actually grant the motion of the Prosecution this morning orally.

20 Yes, Madam Vidovic.

21 MS. VIDOVIC: [Interpretation] That is correct, Your Honour, except

22 that we expect yet another thing. We would like to receive copies of

23 their statements in a language that the accused understands, but that is

24 no hindrance in terms of continuing the proceedings.

25 JUDGE AGIUS: All right. So now let's make sure that we have

1 covered everything. The motion includes or the list includes also the

2 first of the Prosecution witness Racine Manas. We have received the

3 statement, together with the accompanying documents. I want to make sure

4 that you have as well? Okay. And also of those five witnesses, I'm not

5 going to mention the names because I'm not quite sure if any of them enjoy

6 protective measures, but I want to make sure that the five witnesses to

7 which you made specific reference in your response you also have received

8 their statements.

9 MS. VIDOVIC: [Interpretation] Yes, Your Honour. We have received

10 the statements of those witnesses.

11 JUDGE AGIUS: All right. And the motion also covered witnesses

12 Kelly and Tedder, and I think yesterday you made it clear that you are

13 happy with the application of Rule 89(F) and that you do not require these

14 persons for cross-examination.

15 So let's make the first step forward. Mr. Registrar, the Trial

16 Chamber, having seen the confidential Prosecution motion for leave to

17 amend the Prosecution list of witnesses filed on the 28th of September,

18 2004, as well as the confidential response filed by the Defence on the 1st

19 of October, 2004, and after having heard the parties, grants the motion of

20 the Prosecution as requested. I don't think that this needs to be

21 followed by a written version of the decision.

22 There is a matter that as it is now I am going to raise because I

23 want to make it clear. Yesterday the Prosecution filed a motion to admit

24 the written statements of witnesses Mr. Barney Kelly and Stephen Tedder

25 pursuant to 89(F), these two persons I just referred to a couple of

1 minutes ago. I want to make sure, first of all, that you have receive --

2 you have been served with this motion.

3 MS. VIDOVIC: [Interpretation] Your Honour, we have been served.

4 Thank you. I confirm that.

5 JUDGE AGIUS: Now, you have already confirmed also that you do not

6 object to these statements and that you do not want to cross-examine the

7 witnesses.

8 Now, apropos -- yes, Madam Vidovic.

9 MS. VIDOVIC: [Interpretation] Yes, Your Honour. What you said is

10 correct. Yes.

11 JUDGE AGIUS: Thank you. Now, I just want to clear up a matter

12 which is strictly legal and which I think we can surmount. There was a

13 decision, an interlocutory decision by the Appeals Chamber in the

14 Milosevic case referring to Rule 89(F) which is being invoked in this

15 motion by the Prosecution and to which you agree, and basically the test

16 that the Appeals Chamber have set down or laid down for applying -- being

17 able to apply this rule is the following: Number one, the witness must be

18 present in a courtroom or in court. So basically one of the most

19 essential requirements according to the Appeals Chamber is the presence of

20 a witness here, which is obviously what the Prosecution has been trying to

21 avoid. I mean, the whole idea is not to have these witnesses brought

22 forward either from Australia or Canada where they reside, otherwise it

23 just wouldn't make sense in applying for or asking for the application of

24 Rule 89(F), et cetera.

25 The position as I see it is this: That if the Defence had not

1 objected to the application of Rule 89(F) but insisted on the right to

2 cross-examine the witness, then obviously the presence of the witness

3 would have been required in any case and this would not have constituted a

4 problem. But if the Defence is waiving their rights to cross-examine

5 these two witnesses, I honestly don't see the practicality of having these

6 two persons brought over. As I said, one is Australian and one is

7 Canadian.

8 MR. WUBBEN: Your Honour, Ms. Patricia Sellers will address this

9 issue.

10 JUDGE AGIUS: Yes, Ms. Sellers.

11 MS. SELLERS: Yes, Your Honour, if I could, good morning.

12 The situation of the two witnesses in terms of where they are is

13 slightly different. It is correct that Mr. Tedder is in Australia.

14 Mr. Kelly is here in the building. He is currently working as an

15 investigator. When the offer was made to the Defence where they accept

16 the declarations, we were already in the process of having Mr. Tedder come

17 from Australia because there was a possibility that they would not accept

18 that, and certainly we had informed the investigator, Mr. Kelly, that

19 there was a chance that he might be called and might be asked to testify

20 before the Tribunal.

21 When the Defence decided that they would accept the statements and

22 the attendant documents attached to the statements, it appears that they

23 did not want to cross-examine either Mr. Tedder or Mr. Kelly, and

24 therefore the 89(F) motion was put in as it is. But certainly they had

25 the ability -- and the Prosecution was more than willing to make the

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1 witnesses appear physically. For one witness it's just a matter of coming

2 down a couple of floors within this very building.

3 JUDGE AGIUS: Okay. But that solves it with one of the two

4 persons but not with regard to the other. But let me finish this so that

5 you can address actually the other requirements as established by the

6 Appeals Chamber.

7 Rule number one is the witness must be present in court. Rule

8 number two is the witness must be available for cross-examination and

9 questioning by the Judges. Right? And this now doesn't depend any

10 longer on the Defence, and it is very difficult for us to take the

11 position of saying we accept the contents of these statements and we do

12 not want to cross-examine the contents of the witnesses. And last but not

13 least, the witness must be in a position to attest that the statement

14 accurately reflects his or her declaration.

15 Now, again how are we going to surmount this? It could be

16 surmounted by an additional declaration, a declaration that they certify

17 as correct the statements that you will be filing in court. But again, I

18 mean, what lies beyond -- behind this third requirement is that if the

19 person is not present here in court, he is not physically present to see

20 what statement is actually being provided to the Trial Chamber. So when

21 you look at these three rules, you see -- you suddenly see the logic

22 behind them requiring the presence in the court, in the Tribunal, of these

23 two persons.

24 If there is agreement amongst you that none of these two persons

25 are required physically here, then I think we will be able to take that

1 into consideration in our decision whether to admit the statements of

2 these two persons under Rule 89(F) or not. Definitely, definitely, we

3 cannot renounce to our right to sort of examine or -- not exactly

4 cross-examine but examine these two witnesses if necessary.

5 So one solution could be admitting the statements under

6 Rule 89(F), if there is no objection on the part of the Defence, with the

7 caveat that at any time we may require these two persons to come over and

8 give evidence on the contents or on the authenticity -- don't

9 misunderstand me. I don't want to throw any doubts on the authenticity of

10 the statements. But as I said we are the guardians of the rights of the

11 accused.

12 So please tell us whether you are -- whether you could live with

13 such an arrangement, in which case we will deliberate later on and come

14 back to you after the break.

15 MS. SELLERS: Yes, thank you.

16 Your Honour, the Prosecution certainly will place themselves in

17 our hands, and we understand the position that you're in and the

18 discretion that you have to use in terms of your own objections.

19 JUDGE AGIUS: Thank you. I thank you, Madam Sellers.

20 MR. JONES: Yes, Your Honour. The position of the Defence was

21 really designed to assist the Court in saving time and wasting resources

22 by not bringing witnesses here when there's nothing contentious whatsoever

23 in their statements as far as we are concerned. So we wrote to the

24 Prosecution and we suggested, just purely on the text of 89(F) as it

25 appears in the Rules, that that appeared to be an enabling provision which

1 would enable Your Honours to admit a written statement.

2 We're aware, of course, of the jurisprudence in the Milosevic,

3 although that might be the decision where there was fairly strong dissent

4 from Judge Hunt, if I'm not mistaken.

5 JUDGE AGIUS: Yes, Judge Hunt was dissenting.

6 MR. JONES: Indeed. But we were basing ourselves on that text and

7 certainly the approach which Your Honour suggests seems eminently

8 sensible, and we're happy with that.

9 JUDGE AGIUS: The problem why we definitely cannot waive our right

10 to bring these two persons over and have them examined by us is that we

11 only got their statement yesterday, I think. So at the end of the day,

12 none of us has read these statements, and if we really want to respect and

13 protect the rights of the accused, we have to reserve our right, after

14 having read them, to see whether it's the case of bringing these two

15 persons over to us to answer questions. But we certainly do not -- are

16 not prepared to waive what is reserved to us not as a right but as a duty.

17 Okay?

18 So we will come unless there is an agreement already --

19 [Trial Chamber confers]

20 JUDGE AGIUS: So we are in agreement, so we can actually decide

21 this here and now. So the Trial Chamber is seized of the motion filed by

22 the Prosecution on the 6th of October, 2004, to admit the written

23 statements of witnesses Barney Kelly and Stephen Tedder pursuant to 89(F).

24 The Trial Chamber has heard the submissions of the Defence in regard to

25 this motion. The Defence are not objecting to the admission of these --

1 or the written statements of these two witnesses pursuant to the said

2 Rule, and they also declared that they are waiving their right to

3 cross-examine the two witnesses.

4 The Trial Chamber makes reference to the decision by the Appeals

5 Chamber in the interlocutory decision of the Appeals Chamber in the

6 Milosevic case in relation to the test that is applicable for Rule 89(F),

7 which, inter alia, requires the presence of the accused [sic] and in order

8 to be in a position -- to be available for cross-examination and

9 questioning by the Judges. In addition, also the presence of the accused

10 may be required to attest the statement, that the statement accurately

11 reflects his or her declaration.

12 Because of this final -- two final requirements for the

13 application of Rule 89(F), the Trial Chamber, taking into consideration in

14 particular the non-objection on the part of the Defence, admits -- grants

15 the motion, admits the written statements of witnesses Barney Kelly and

16 Stephen Tedder pursuant to Rule 89(F), reserving for itself, however, the

17 right to ask the Prosecution to bring forward either or both of the two

18 witnesses for examination by the Trial Chamber or for attestation that

19 their statement accurately reflects their respective declaration, should

20 the need arise.

21 So that disposes of the second motion. And I must acknowledge the

22 cooperation of both the Prosecution and the Defence. This all goes well

23 for the rest of this trial.

24 We come to the first real problem which I touched upon yesterday.

25 We need to decide today how we are going to proceed on this matter. I'm

1 referring to the Prosecution confidential motion filed on the 27th of

2 September for admission of written statements of witnesses pursuant to

3 Rule 92 bis (C). We are dealing with two categories of persons, two

4 categories of witnesses. Witnesses who allegedly are unable to come to

5 give evidence because of serious -- ill health or serious health problems;

6 and the second category, witnesses who are longer with the living.

7 The Defence, as I explained yesterday, filed a confidential

8 response to the Prosecution motion on the 30th of September objecting to

9 the admission of all statements, also making submissions. Yesterday I

10 touched upon this motion and also the response, particularly since upon

11 receiving from the Prosecution the list of the first batch of witnesses

12 they intend to bring forward, I noticed that two of these witnesses were

13 amongst the three that are mentioned in this motion of the 27th of

14 September; in other words, they are witnesses that the Prosecution has not

15 yet been authorised to bring forward under the regime of Rule 92 bis (C).

16 We also yesterday explained that we attached to this matter

17 importance because there are legal issues involved, particularly in

18 relation to the witness who is dead, and that there is absolutely no way

19 this witness can be cross-examined by the Defence. And also I'm realising

20 that the decision that we will ultimately have to reach on the other two

21 witnesses very much depends on the verification of what you allege as the

22 basis for your request and also the consequences of these witnesses not

23 coming over and therefore not being made available for cross-examination.

24 These are serious matters. This is not a case where we have

25 hundreds and hundreds of witnesses and where one could make allowances

1 here because one thing could make up for another. So we expressed our

2 availability for debate on this issue should the need arise. Only that

3 Mr. Wubben stood up yesterday and informed us that his team had been

4 working around the clock day and night on elaborating written submissions

5 on the matter which was welcomed news, because it will highlight I'm sure

6 the various salient features of the issues involved and which would enable

7 you to respond either in writing or after having taking stock of the

8 written submissions and after having been given sufficient time, we can

9 then have the matter debated here. We would dedicate as much time as is

10 necessary but not more than one session to debate it. And then this is

11 definitely something that we will need to decide in writing. Some of the

12 matters have been dealt with by other Trial Chambers before. I would say

13 some others haven't been dealt with or need to be dealt with more

14 thoroughly in this trial.

15 So that is the -- yes, Madam Vidovic. I haven't seen the

16 submissions as of yet.

17 Have you filed them, Mr. Wubben? Ms. Sellers.

18 MS. SELLERS: Your Honour, the submissions were filed and Your

19 Honours and both learned counsel were offered courtesy copies yesterday so

20 that you would be able to review them prior to today's session. We

21 understand your time constraints. But the official registry copies might

22 only have been available today. We wanted to have the Chamber's copies --

23 JUDGE AGIUS: They were only given to us this morning. This

24 morning, this is what we received this morning. Okay. So I take it that

25 you have filed it. I still don't see it here -- no, okay. All right. I

1 have it here.

2 What is the -- what is your preference, Madam Vidovic, if you are

3 in a position give us a preference, to state a preference?

4 MS. VIDOVIC: [Interpretation] Your Honour, we have received the

5 response of the Prosecution to our response, and I believe that it is in

6 the interest of the proceedings to respond straight away, that is to say,

7 in order to apply Rule 90 bis (C). We have carried out investigations and

8 I think it is very important for the Chamber and for the Prosecution to

9 hear of the results. As for these three witnesses, there are two

10 categories involved, as you've already said --

11 JUDGE AGIUS: Sorry to interrupt you. But in -- just in case you

12 will be dealing with medical records or -- et cetera in relation to either

13 of two of them, please tell me beforehand so that we will go into private

14 session because these are matters that need -- shouldn't be made public.

15 So please do guide me as you go along. Thank you.

16 MS. VIDOVIC: [Interpretation] Very well. Then I shall first speak

17 about the second category of witnesses, namely Bogicevic, Veseljko, and

18 Witness Novka Bozic.

19 As for Witness Veseljko Bogicevic, we highlighted in our motion

20 that we have reasons to believe that he did not die and this is why. The

21 Prosecution asked for Witness Novka Bozic to be under Rule 92 bis (C). We

22 checked this information and we learned that this person was not dead and

23 finally the Prosecution confirmed this. This was something that caution

24 does that we should be very careful and that we have to look at all the

25 materials related to these witnesses. Had we not done this, there would

1 have been abuse of Rule 92 bis (C). Therefore, we checked all the

2 documents very carefully, all the documents supporting Witness Veseljko

3 Bogicevic.

4 Your Honours, please look at annex 3 of the Prosecution motion

5 dated the 27th of September, 2004, this is a statement given to the

6 Prosecution, and please compare it to annex 4, namely the death

7 certificate related to Mr. Veseljko Bogicevic. You will notice straight

8 away that the dates of birth differ in these two documents. This

9 immediately led us to a further investigation. We checked this out

10 unofficially. We checked the personal code number of citizens. We looked

11 at the code number that is in the death certificate -- actually, I wish to

12 draw your attention to the following: That in our system - and that is

13 probably the way it is everywhere in the world - every person has a code

14 number of their own. We immediately noticed that this personal code

15 number, personal identification number, has a certain logic of its own,

16 according to our system, could not be the identification number of

17 Veseljko Bogicevic. We checked this out and established that Veseljko

18 Bogicevic was not registered under this number and that this number

19 actually belongs to a person called Begic [phoen].

20 Then we tried to approach the matter in a more direct fashion. I

21 am sorry that I do not have an English translation of this document here.

22 We worked on all of this late last night. You realise that we received

23 the motion only yesterday. And we established that the person that gave a

24 statement to the Prosecution, that is to say Bogicevic Veseljko, was born

25 in Ratkovici, municipality of Srebrenica, and this person's number is

1 0404940183123. So this document that was provided to us by the

2 Prosecution for Bogicevic, Veseljko, born on the 7th of August

3 [as interpreted], 2002 does not pertain to Bogicevic, Veseljko, for whom

4 the Prosecutor wishes to apply Rule 92 bis (C).

5 I shall tell you that I received this information by making checks

6 at the federal institute of statistics, which is relevant for all this

7 citizens of Bosnia-Herzegovina. I believe that the same kind of check

8 could have been carried out by the Prosecutors, too. Therefore we express

9 our sincere doubt in terms of the authenticity of these documents. I

10 kindly ask the Judges to bear this in mind, and in terms of further

11 proceedings I must say that yesterday the Prosecutor said that Oric was

12 trying to build a smokescreen around the documents and the authenticity of

13 the documents. Allow me to say today that somebody else is making this

14 smokescreen or this camouflage net around the documents, and we are trying

15 to penetrate through it.

16 I wish to draw the attention of our colleagues, the Prosecutors,

17 to that because of all the things you told us today in terms of fair play

18 between the parties in the proceedings. When objecting to the

19 authenticity of the documents pertaining to Mrs. -- Novka Bozic, we never

20 said or wrote that the Prosecution perhaps intentionally obtained false

21 death certificates, and this Defence would never say any such thing. On

22 the contrary, we said something completely different, that these

23 certificates were falsified, forged, and that it was our duty to draw your

24 attention to that. This is not to say that we are blaming the Prosecution

25 for that, but we certainly believe that the Prosecution is duty-bound to

1 pay due attention to such matters and to assess the evidence before them.

2 Believe me, we are going to deal with each and every document that gets

3 into our hands in the same way, although our resources are limited. We

4 are not going to sleep, as we didn't sleep last night, but we are going to

5 come to the facts. In paragraph 10 of their response -- I'm sorry.

6 JUDGE AGIUS: If you're coming to a fresh point, I think we need

7 to have a break now because we've just passed our time by a few minutes.

8 We'll have a 25-minute break and we'll resume at 11.00. We'll resume

9 at 11.00. Thank you.

10 --- Recess taken at 10.34 a.m.

11 --- On resuming at 11.02 a.m.

12 JUDGE AGIUS: Yes, Madam Vidovic.

13 MS. VIDOVIC: [Interpretation] Your Honour, permit me before I

14 continue for the sake of the accuracy of the transcript I do apologise,

15 the date of death was not the 7th of April but from the document that was

16 delivered to us I mistakenly said the 7th of August. I apologise. The

17 reason for the error is that I did not get enough sleep last night, as I

18 said.

19 I shall continue very briefly and then I will ask for us to go

20 into private session.

21 In paragraph 10 of the response by the Prosecution of the 6th of

22 October, 2004, it says that the Defence erroneously suggested that the

23 Prosecutor intentionally changed Bogicevic's statement in order to create

24 a false impression. I wish to draw your attention to footnote number 3 of

25 our reply of the 30th of September, 2004, on page 3, paragraph 9. We said

1 the Defence does not suspect the Prosecutor of intentionally changing the

2 statement in order to create a false impression and so on and so forth.

3 We could not have been clearer, and I beg to have our submissions

4 interpreted in future in the spirit in which they were written, because we

5 are doing our utmost to respect the rules of this Tribunal.

6 Your Honours, I hope that we are now in private session --

7 JUDGE AGIUS: No, not yet, Madam Vidovic.

8 Registrar, could we go into private session for a while, please.

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11 JUDGE AGIUS: So we are back in open session. The reason why we

12 were in private session is we were dealing with the medical condition of

13 one of the persons mentioned in this motion and that we considered not to

14 have debated in public. Yes.

15 [Trial Chamber and registrar confer]

16 JUDGE AGIUS: So let's start with Novka Bozic. We are happy to

17 learn, therefore, that this woman is alive and not dead.

18 MS. SELLERS: Yes, Your Honour, the Prosecution admits that it

19 erred and is happy, and I think the Defence will join us in --

20 JUDGE AGIUS: I also take it you that intend to bring her forward

21 as a viva voce witness.

22 MS. SELLERS: Yes, we do, Your Honour.

23 JUDGE AGIUS: All right. So that solves one-third of the problem.

24 The other person who you say is dead Defence say is still alive.

25 He was not a nobody. I mean, he was someone, at least from what I read,

1 he was a public figure for some time. So I take it that it should not be

2 that difficult to establish whether he is alive or he is dead. I don't

3 know at this point in time. I am baffled, seriously baffled.

4 At the same time, the points raised by the Defence, by Madam

5 Vidovic, in relation to the death certificate that you exhibited, that you

6 filed, do raise some question. I mean, after all we had also a

7 certificate purporting to show that Madam Bozic was dead only to find out

8 that we were talking of a different person and she is still alive. And

9 kicking, I suppose.

10 MS. SELLERS: Yes, Your Honour. Yes, she is. I would like to

11 address the issues raised by Madam Vidovic --

12 JUDGE AGIUS: Let's tackle this first.

13 MS. SELLERS: Yes --

14 JUDGE AGIUS: Novka Bozic.

15 MS. SELLERS: Yes, in particular those issues, Your Honour. Madam

16 Vidovic pointed out within the death certificate several things. The

17 Prosecutor would first like to demonstrate to Your Honours that let's look

18 at the commmonalities of the death certificate and our information that

19 the person is deceased. The death certificate shows the same name of the

20 person. What Your Honours does not have before you is the statement of

21 the deceased person. The Defence certainly does have this statement

22 before them. If they look at it, they will also note that it is not only

23 the same name of the person, the person's father has the same name, the

24 person's wife has the same name, the person was born in the same place.

25 The only difference that one could discern is that there is a slight

1 difference in terms of the date of birth. The date of birth differs by

2 three days. The Prosecution is uncertain as to whether that difference of

3 three days - the 7th of April or the 3rd of April - is a typographical

4 error on our part or the other. Thank you very much.

5 In addition to that, I would like to inform Your Honours and

6 certainly learned counsel that we are currently calling the family now,

7 just to reassure Your Honours of the state of health or death of that

8 person. We agree that it is a public figure and we certainly would like

9 to convey that we would like to know not only the real and vital

10 information, because to go to 92 bis (C) in many ways means that we reduce

11 the evidence that we are allowed to present. We certainly do not intend

12 to abuse 92 bis (C) as Defence counsel might have suggested, and we

13 certainly do not intend to reduce the Prosecution's ability to present

14 evidence.

15 So If I could get back to Your Honours with this, our final bit of

16 information, hopefully by the end of the session or as soon as possible.

17 So in those manners I think we have met 92 bis (C)'s requirement.

18 JUDGE AGIUS: Yes. In pursuing this matter could you also

19 address, not now, obviously, with the relatives of the person you allege

20 to be deceased, could you also pursue the question of the identification,

21 personal identification number.

22 MS. SELLERS: We certainly --

23 JUDGE AGIUS: Again, that is one other area which has been touched

24 upon by the Defence as a basis for their contention that this person is

25 still alive or that the death certificate refers to someone else.

1 MS. SELLERS: Yes, Your Honour, we certainly will do that.

2 JUDGE AGIUS: I also have tried -- because we also do have his

3 statement and unfortunately that's how I know that he was a prominent

4 public figure. Unfortunately -- if you see there is -- the place of birth

5 is the same, Ratkovici, Srebrenica. The place of death is supposedly

6 Abdulici. Date of death is 7th August, 2002. It doesn't show father's

7 name or anything else which could have helped us identify this person

8 more. There is an indication of the --

9 MS. SELLERS: Excuse me, Your Honour, if you would look on the

10 first page --

11 JUDGE AGIUS: ... but you don't find it on the statement.

12 MS. SELLERS: Sorry. On the first page of our statement - and I

13 don't know what Your Honours are looking at, we have a cover page - and

14 there it's clearly indicated the father's first name.

15 JUDGE AGIUS: But you don't find it in the death certificate.

16 This is what I mean.

17 MS. SELLERS: Your Honour, I would draw your attention to the

18 second page of the death certificate, on the second page of the death

19 certificate, the translation is provided.

20 JUDGE AGIUS: Oh, I see. I see.

21 MS. SELLERS: And also the name of his wife.

22 JUDGE AGIUS: Father Jovanka Bogicevic. Anyway, we need to

23 establish whether this person is alive or dead. The death certificate

24 shows that he was born on the 7th of April, 1940, and not on the 4th of

25 April. So it could either be a mistake in the first page of your

1 statement or a mistake in the death certificate; I don't know. But what

2 could be the determining factor is the identity -- identification number.

3 So maybe if you could check that with the members of his family, we could

4 close the matter there.

5 And that would leave us then with the question -- the legal

6 submissions only as to whether this statement of a dead person who is not

7 available for cross-examination should be admitted. And that will of

8 course involve a full-scale discussion. So that is going to be attended

9 to by you.

10 The other person, Miladin Bogdanovic. I honestly feel confused.

11 I have seen the date of the statement that you filed together with your

12 motion, which goes back to 2000. I have seen the statement of the

13 investigator which goes to October 2003. It says: "I interviewed the

14 witness for the Prosecution in the case against Naser Oric named

15 Bogdanovic Miladin on the 22nd day of October, 2003." And then there is a

16 medical certificate - I don't need to go into details and therefore we can

17 stay in open session - which seems to be dated at least on the 23rd of

18 September, 2003, which deals with one aspect of his disease. At the same

19 time -- let me find the response because what the Defence states is --

20 needs to be addressed anyway. I mean, it's -- basically referring to the

21 medical reports that you attached to the motion. The Defence submits that

22 the medical reports in themselves do not touch on the ability of the

23 witness to speak or to carry on conversation. And in particular the

24 second report, which is dated the 23rd of September, and I'm mentioning

25 the date because it is very near to the date when your investigator went

1 to interview him. The second report says that this person is conscious,

2 orientated, able to communicate, somewhat hard-of-hearing, and walking

3 with the help of a stick. Again, there is no mention in the report that

4 this person is unable to speak. I don't think -- again, this is something

5 that we will need to discuss between Judge Brydensholt, Eser, and myself.

6 I don't think this puts us in a very happy situation because more or less

7 within this same time frame - we're talking of September/October

8 2003 - while one certificate would not justify your request --

9 MS. SELLERS: Your Honour, might I address the Court --

10 JUDGE AGIUS: The statement of your investigator does justify it.

11 So I think we will need to establish the medical condition of this person

12 in some other manner, because I don't think that what we have is enough to

13 enable us to reach a recent decision. I mean, we have got conflicting

14 scenarios here as I see it.

15 So you could, if you want, agree on a medical person who would

16 visit this individual and report back to the -- to either one of you. I

17 mean, you could agree on a person. That is something that you could do

18 without the intervention, direct intervention of the Trial Chamber. If

19 not, we will have to nominate -- appoint someone. At this point in time,

20 I don't think it should be left to either of you. If it needs to be

21 established, it will need to be established by an independent observer.

22 Unless you agree on a person amongst yourselves, say a doctor in the area

23 which you both have trust in. I mean, it could be done with the least

24 expense possible, would not be nominated by the Tribunal. You could even

25 share the expense among yourselves, and we will take account of his

1 certificate in lieu of us having to nominate an independent individual.

2 MR. JONES: Yes, Your Honour. That will be acceptable --

3 MS. SELLERS: Your Honour, we will approach the Defence counsel --

4 excuse me, learned counsel. We will approach the Defence counsel with

5 your suggestion. The Prosecution would just like to say that also you

6 have available to you, if you did want to speak to our investigator, who

7 it is significant saw him in a short time period afterwards but actually

8 tried to speak to him and elicit conversation. But we will certainly

9 approach counsel and determine the state of health and in particular the

10 ability of this witness to communicate within the precepts of 92 bis (C),

11 whether he is mentally or physically unable to testify orally at the Trial

12 Chamber.

13 JUDGE AGIUS: Yes, Ms. Sellers, I do not doubt for a moment the

14 evaluation made by your investigator, but again an investigator remains an

15 investigator. And even if he came forward and testified on this and gave

16 us his own personal evaluation, it's not going to solve the problem.

17 Between October/September 2003 and now, another year has passed under the

18 bridges. And the situation may have improved or may have worsened. As

19 you know, people having the condition that this person has, the situation

20 varies from time to time.

21 So I think it needs to be established for the benefit of everyone

22 and also to have something credible on which we can work and then reach a

23 decision. It needs to be assessed by someone who is an expert -- a

24 doctor, a medical doctor, in other words.

25 I think what I suggested makes sense if it's workable, but you

1 have to agree on a doctor. If not, we will appoint someone, someone --

2 we'll ask the registrar to inform us on who could be available to be

3 appointed and then we will ask the registrar, direct the registrar to

4 appoint him and examine this prospective witness.

5 Yes, Mr. Jones.

6 MR. JONES: Yes, thank you, Your Honour. That's certainly

7 acceptable to us to have an independent expert, and clearly an

8 investigator of the Prosecution who isn't a neurosurgeon, isn't a doctor.

9 It's not his job to evaluate that. And we'll discuss that with the

10 Prosecution.

11 JUDGE AGIUS: Yes, please.

12 MR. JONES: One thing I would say just now is we would like to

13 request the Prosecution -- it may not arise now but in future to provide

14 full translations as well as -- of these documents because in our response

15 if it was one word which was important it was ability to communicate, and

16 that was omitted from the summary translation.

17 JUDGE AGIUS: I agree with you, Mr. Jones. I agree with you.

18 MR. JONES: We can discuss the arrangements with the Prosecution.

19 JUDGE AGIUS: So I am going to close the debate on this motion

20 now, here, the position being as follows: The Prosecution will report

21 back to the Trial Chamber on its further investigations into the death or

22 otherwise of Witness Veseljko Bogicevic. We don't need to address Novka

23 Bozic because I take it that she is going to be brought forward as a

24 witness. And you are going to find out -- discuss first whether you can

25 agree on a doctor who will visit and examine this witness and then report

1 back to us. In case of no agreement, then we will -- before we proceed

2 with any further discussion on this motion, we will ask the registrar to

3 appoint a doctor to do exactly the same and report -- issue a medical

4 certificate to the Trial Chamber. Okay.

5 We'll move to the next motion. On the 24th of September, 2004,

6 the Prosecution filed another confidential motion for leave to add

7 exhibits to its exhibit list -- to its exhibit list. The exhibit list

8 that had been filed earlier in terms of Rule 65 ter. On the 27th of

9 September, the Defence filed the confidential response to the Prosecution

10 motion and -- objecting to the addition of five of the proposed additional

11 exhibits.

12 We discussed this matter very briefly during the pre-trial

13 conference, as you remember. We gave the Prosecution the opportunity to

14 file a reply, which they did on the 5th of October. In reality, having

15 checked the date again, I have to say that it was filed late in terms of

16 Rule 126 bis. Still, I will turn to the Defence, first to confirm that

17 you have received it, and secondly to know whether you object for the

18 introduction of this reply in the records of the case because it was filed

19 late or whether you want to close a blind eye and keep the filing in the

20 records as if it had been filed.

21 [Defence counsel confer]

22 JUDGE AGIUS: It is always possible for the Trial Chamber to

23 address the Defence and say you have filed it late. Could you make

24 submissions on the issue. So I'm making the suggestion that you be

25 practical. It's not something which is do or die for the Defence or for

1 the outcome of the trial obviously.

2 Yes, Madam Vidovic.

3 MS. VIDOVIC: [Interpretation] Yes, Your Honour, precisely. It may

4 happen to us at some point as well, so we do not mind having things remain

5 that way.

6 I am going to respond very briefly. For example, when the

7 exhumations expert is concerned, Mr. Stankovic, or whichever witness, we

8 object to introducing this kind of voluminous evidence for a simple

9 reason. It is video footage that is being tendered about exhumations,

10 even those that were carried out outside Bosnia-Herzegovina, for example

11 in Croatia, in Vukovar. If the Prosecutor is trying to prove that

12 Stankovic in his career was engaged in exhumations, that is not being

13 challenged. We are not going to object to that. Therefore, it is not

14 necessary to add this kind of evidence. However, if we were to accept

15 this kind of practice, that may mean that some day the Prosecution will

16 try to show Mr. Gow lecturing to students or show his books so that we

17 would know that he is a teacher. Therefore, it is not necessary to tender

18 irrelevant evidence.

19 As for the rest, as regards our other responses, we abide by what

20 we originally said in our first response and objection to the Prosecution

21 motion.

22 JUDGE AGIUS: And I suppose you are aware as well that the

23 Prosecution has now withdrawn their request in relation to -- in respect

24 of one of the exhibits that they wanted to include. And that -- I'm

25 referring to video -- to a particular video.

1 MS. VIDOVIC: [Interpretation] Your Honour, I am not aware of that.

2 Of course I would have -- I would not have raised the issue had I been

3 aware of it. Quite simply, we did not receive any such information.

4 Thank you.

5 JUDGE AGIUS: The Prosecution no longer seeks to add one of the

6 video -- I can give you the reference of the video. It's V00, or

7 zero-zero - I wouldn't know if it's 0-0 or zero-zero - 3281. VOOO-3281.

8 There are four other videos that are not being withdrawn.

9 Do you have any further submissions, Mr. Wubben, or whoever will

10 be dealing with this matter after the response of the Defence?

11 MS. SELLERS: Your Honour, I think that the submissions of the

12 Prosecution are laid out quite succinctly in our response. We do not seek

13 to enter into evidence anything that as you termed grisly or that could be

14 prejudicial. The Prosecution would like to point out that we are before a

15 panel of professional Judges. We will see videos during this presentation

16 of the case. We have already seen videos in the opening statements that

17 showed rather touching and at times quite emotional footage and your

18 Judges have to look at that as they would look at other videos.

19 We would like to really emphasise the reason that the Prosecution

20 felt that we should provide the entire videos is so that they could be

21 seen in their context. And I think that what is quite clear in our

22 response is that we have given the exact time slots on those videos that

23 we think are relevant to a witness whom we will call a doctor who will be

24 called to testify precisely to the type of work he has done within the

25 region as it relates to exhumations and one of the persons that Mr. Oric

1 is accused for being criminally responsible for. In that manner, we

2 thought they were entirely relevant, that they would be probative, they

3 corroborate the evidence of Mr. Stankovic. And I think that our ability

4 to particularly point out now those segments of the video is an additional

5 way in which the Defence can further prepare. We believe that they are

6 relevant and therefore we would ask the Trial Chamber not to require that

7 we withdraw them from our evidence. Thank you.

8 JUDGE AGIUS: Thank you, Madam Sellers.

9 MR. JONES: May I reply just very briefly?

10 JUDGE AGIUS: Yes, Mr. Jones.

11 MR. JONES: Well, the Prosecution has referred to seeing

12 videotape, for example, in the opening speech which is -- which has a

13 certain impact, emotional impact, let's say. Those are videotapes of

14 Srebrenica at the time of the indictment directly relevant to the whole

15 context of this case. The Prosecution is proposing to show videos of

16 exhumations carried out in Croatia, another country, exhumations which

17 have nothing to do with this case, and the Prosecution has clearly stated

18 they are not exhumations related to any crimes in the indictment in order

19 to prove to Dr. Stankovic has carried out exhumations.

20 In our submission that is absolutely ridiculous. It really is

21 ridiculous, as my colleague said, as showing videotapes of Dr. Gow of

22 teaching. We accept he has carried out exhumations. Therefore, the

23 reason for that evidence disappears. In our submission, there is no

24 reason for having that evidence in, and it would set a bad precedent for

25 it to be in, given its irrelevance. That's our submission.

1 JUDGE AGIUS: Yes, Ms. Sellers.

2 MS. SELLERS: Yes, Your Honours, I thank learned counsel for his

3 submissions. Certainly we will not burden this Trial Chamber with long

4 videos of libraries of Dr. Gow's studies or students. But we would ask

5 the Trial Chamber to please consider what, in essence, are prior

6 statements of one of the witnesses who is coming forward, which is in

7 essence seeing the witness perform the same functions professionally as we

8 will offer the Trial Chamber that he performed in relationship to one of

9 the victims in this indictment. We find that being totally relevant.

10 This morning the Judges -- you have clearly explained to us that the

11 policy is toward admitting evidence but also toward narrowing evidence

12 that might contravene Rule 89(D). This does not, Your Honours. It is

13 probative. And I would just fall back on our written submissions.

14 JUDGE AGIUS: All right. I think we have heard enough on this.

15 We will reserve our position and we will be handing a written decision on

16 this motion which covers many other documents. It shouldn't take us much

17 to decide this matter. I would expect that in the course of next week we

18 should be in a position to hand down our position. It will cover,

19 naturally, the 12 maps, the 28 videos, the three sets of photos -- not 28

20 videos, it's 27 now. And some other documents - I think they number 15 in

21 all - identified through further investigation. We will also take into

22 consideration the submissions that you made in your response, the other

23 submissions, in relation to matters related to authenticity, provenance

24 and all of that. That disposes of this motion. The Trial Chamber will

25 decide it in due course.

1 MS. SELLERS: Excuse me, Your Honours.

2 JUDGE AGIUS: Yes.

3 MS. SELLERS: Might I suggest to you, it's really coming back to

4 some information that you had requested earlier. We have been able to

5 contact the family of Mr. Bogicevic who has confirmed his death. Of

6 course he was a well-known member of the community. They confirmed also

7 that his death was in August of 2002 between the 4th and 5th of that

8 year -- of that day. We will come back to you pertaining the number.

9 Just to give you that information.

10 JUDGE AGIUS: Yes, that's a most important part. Thank you.

11 I now come to the motion, which is again confidential, of the

12 Prosecution filed on the 28th of September for protective measures for

13 witnesses. So there are two persons, and I will be referring them as

14 follows -- to them as follows: The first one is already coded and he is

15 C001. The other one is named, but for the purposes of this hearing we

16 will call him witness number 2, without mentioning his name.

17 Who are you objecting that he or she be given protective measures

18 that the Prosecution are asking for?

19 MS. VIDOVIC: [Interpretation] Your Honour, we object to C001. We

20 are working on a motion now and we are going to hand it in by tomorrow at

21 the latest. As for the other person, we do not oppose protective measures

22 for this person, that is witness number 2. We shall present our reasons

23 for that as well.

24 JUDGE AGIUS: Okay. So the position that the Trial Chamber

25 reserves is as follows: Instructing the stuff to prepare a decision in

1 writing relating to the second person mentioned in the motion of the

2 Prosecution, he is mentioned by name. We are deciding orally now that

3 this person will be granted the protective measures of pseudonym, image,

4 and voice distortion during the -- during this trial. However, since this

5 person is mentioned by name in your motion, this oral decision will be

6 followed by a written one which will be prepared by my staff and which we

7 will sign either later on today or tomorrow or whenever. But you are

8 advised that this person is being granted the protective measures sought.

9 As regards Witness C001, we will wait for your motion and then we

10 will see whether there are -- there is a reply from the Prosecution and we

11 will decide accordingly. So this closes the matter on protective measures

12 for witnesses.

13 You should have received notice, if not the copy already, of a

14 confidential ex parte Prosecution request for the issue of -- issuance of

15 a subpoena in regard to a particular person that is mentioned in the

16 ex parte part. I'm not going to ask you for any kind of a response for

17 the time being. I don't know if you have received it or not.

18 MS. VIDOVIC: [Interpretation] Your Honour, we have received that

19 request. We are going to respond within the appropriate amount of time

20 allocated to us for filing such a response.

21 JUDGE AGIUS: Okay, thank you. It's not something that is urgent.

22 I take it it can wait. It can wait.

23 There are two other matters that arise from two other filings that

24 occurred yesterday evening. One is the Prosecution's confidential notice

25 of disclosure of declarations of Madam Racine Manas and additional witness

1 statements dated 6th October 2004. I don't know if there are any remarks

2 that the Defence have -- no. That's what I expected.

3 The other may call for some kind of response on the part of the

4 Defence. The other is the Prosecution's submissions substantiating

5 selected disputed paragraphs of the Prosecution's pre-trial brief, also

6 dated 6th October 2004. As you remember, this was provoked really by the

7 Trial Chamber itself. There were some matters that you raised in your

8 Defence pre-trial brief which, according to us, called for some kind of

9 response. And the Prosecution has now graced us with their opinion on the

10 matter.

11 Do you want to make submissions or not?

12 MS. VIDOVIC: [Interpretation] Your Honour, we are grateful to the

13 Chamber for having raised the question. The Prosecutor filed his

14 response. Anything that we would have to say now is for the trial stage,

15 so we are going to respond to each and every one of these matters during

16 the trial itself. Thank you.

17 JUDGE AGIUS: But at least you have the Prosecution's point of

18 view and that's clear enough for your purposes at least.

19 MS. VIDOVIC: [Interpretation] Yes, Your Honour.

20 JUDGE AGIUS: I also want, before I move to the question of the

21 length of the Prosecution case, I want to make sure that you have received

22 the binder with the first -- with the statements of the first batch of

23 witnesses.

24 MS. VIDOVIC: [Interpretation] Your Honour, we have received it.

25 But I would kindly ask you to go back to another question. It seems to me

1 that we haven't clarified it sufficiently. It has to do with

2 Witness C004, or at least that's what I think you indicated, that we would

3 discuss that today. Because on the 17th of September, 2004, the

4 Prosecutor filed a request to postpone the discovery of the unredacted

5 statement of Witness C004.

6 We would just like to draw your attention now, the attention of

7 the Trial Chamber now, to the possible consequences of this delayed

8 discovery of the unredacted statement of this witness. I kindly ask the

9 Trial Chamber to bear in mind the situation as it is. This witness does

10 not speak only about Ratkovici, this witness talks about a series of

11 attacks, perhaps I could say all the attacks that are relevant to the

12 indictment. Also, this witness speaks about very important matters

13 related to command responsibility and the possible responsibility of our

14 client. This is to say that at the moment when we received this statement

15 we have to carry out our own investigations, and we have to cross-examine

16 practically all witnesses who are going to be called here during the

17 trial. This could compel us to call back certain witnesses who perhaps

18 gave their statements before we get this statement in its entirety. This

19 statement is redacted to such a high degree that it says in one paragraph,

20 for example, a person subordinate to my client, and I'm not going to say

21 the name, says that he issued the order to attack and then the place of

22 attack is redacted. This renders our investigations practically

23 impossible. We need to have a fair trial and we need to have that

24 principle observed. That is why I would like to request to have a

25 decision to this effect passed as soon as possible because this could

1 incur major expenses and costs for the Tribunal.

2 We also had some correspondence with the Prosecutors and we asked

3 for previously given statements to be handed over to us. The Prosecutor

4 replied by saying that we should explain what we meant by this, namely

5 that Rule 66(A)(ii] is quite clear; that was our answer. There is nothing

6 for me to explain. These are statements that were given in different

7 procedures. If we read the witness statements themselves very carefully,

8 then it is quite clear that even on the basis of these statements there

9 are indications that these witnesses talked to the authorities. Of course

10 I'm not going to say here which particular authorities because I am trying

11 to protect the witnesses.

12 Also, we received other documents for -- from the Office of the

13 Prosecutor, especially during the provisional release discussion.

14 Could the Prosecutor please make an additional effort and give us

15 these statements, too. For example, the statement of Witness C004. Could

16 we have all these statements, rather, even in redacted form, but could we

17 just have them please. Thank you.

18 JUDGE AGIUS: Who is going to address this?

19 MR. WUBBEN: Mr. Gramsci Di Fazio.

20 MR. DI FAZIO: Thank you. If Your Honours please, you will recall

21 your very clear instruction that you issued at the pre-trial conference

22 relating to disclosure matters generally; I recall it specifically. And

23 Your Honours very usefully and hopefully indicated that all matters

24 relating to disclosure should be put in writing. That happened and the

25 Defence did indeed send us a letter after the pre-trial conference, and

1 might I say that they made their position abundantly clear. Very clear.

2 They initiated their letter dated the 1st of October using this

3 phrase: "We are writing to inform you of the following items of

4 disclosure which remain out" --

5 THE INTERPRETER: Would counsel please slow down.

6 MR. DI FAZIO: "... which remain outstanding." The Prosecution

7 takes that to be a clear statement and takes at its face value that they

8 were writing to inform us of indeed all the items of disclosure that

9 remain outstanding. Now -- and then they enumerated a list of matters

10 that they claim were -- remained outstanding, and the Prosecution has

11 addressed those issues in a reply letter with the further disclosure of

12 other material.

13 Now, I can't indicate from looking at the transcript what

14 precisely Madam Vidovic is talking about. I can say to you that the

15 Prosecution will endeavour to provide anything that she is missing and

16 could comply with our disclosure requirements and we have attempted to do

17 this throughout. If Madam Vidovic is able to identify clearly to the

18 Prosecution who precisely she is missing and requires by way of

19 disclosure, then we will once again or disclose de novo materials.

20 However, we have been following the procedure that your -- the Trial

21 Chamber so helpfully pointed out, namely to deal with these issues in

22 writing. And I can't say to you right now whether -- in fact, I can't

23 identify precisely what Madam Vidovic is talking about. But we can and

24 will provide anything that is clearly -- made clear to us, the nature of

25 the material that is being sought.

1 I can say that having received the letter of the 1st of October,

2 2004, in which the Defence set out all the items of disclosure which, and

3 I'll quote again: "Remain outstanding," we have complied with that.

4 JUDGE AGIUS: Thank you.

5 And with regard to Witness C004 and the question of delaying the

6 disclosure, the Trial Chamber did -- we did our very best to make sure

7 that the disclosure will not be delayed beyond the beginning of the trial.

8 Unfortunately we could not do that. We need to verify certain matters

9 ourselves, which we are doing, without which we are not really in the

10 position to decide one way or another. I can't give details in a public

11 hearing, but I suppose that very shortly we will have an update on the

12 information that we are -- have asked for which would basically put us in

13 the position to verify the facts on which the motion is predicated, is

14 based. And after that, we should be in a position to decide.

15 However, whichever way we decide and should we decide that the

16 disclosure will be delayed until such-and-such a date, I can assure you,

17 Madam Vidovic, that any measure you require to make good for that delayed

18 disclosure will be met with. In other words, if it is necessary and the

19 Trial Chamber is satisfied that it is necessary to bring back one or two

20 or more or I don't know how many witnesses to testify further on

21 particular matters, that request will be discussed, obviously, and if it

22 is reasonable, it will be accepted. Whether the person would need to come

23 here or whether the person could respond in some other fashion under

24 Rule 92 bis, et cetera, that will be another matter. But for the time

25 being, however much was our good intention to have this better decided

1 before the beginning of the trial, we found ourselves in a predicament and

2 we couldn't reasonably come to a conclusion without verifying certain

3 facts, without which I believe we can't really come to a decision. But

4 that should happen very soon, and the Prosecution and you should be

5 able -- should be in a position to know whether there is going to be a

6 disclosed -- a delayed disclosure in the first place. And if there is

7 going to be a delayed disclosure, up to when. But we, ourself, don't know

8 as to when.

9 MR. JONES: Just time for one matter. Earlier Your Honour

10 referred to -- or Your Honour asked whether we had received a binder of

11 the first batch of witnesses. I think I'm correct in stating - I haven't

12 had time to confer with my colleague - but I don't think we received a

13 batch of statements as such because we already had them presumably. So if

14 that's the arrangement, then that's clear, we haven't received another

15 binder.

16 JUDGE AGIUS: When I said "binder," we want to make sure that you

17 have been furnished, supplied with the statements of the witnesses --

18 MR. JONES: Yes, I understand that .

19 JUDGE AGIUS: For you, it's different. For us it's a binder. We

20 get a binder so I tend to refer to it as that.

21 MR. JONES: Yes. But what we would appreciate in that regard,

22 Your Honours, is if we could receive a copy of the cover of the binder

23 which is supplied to Your Honours so that we can keep track of which

24 statements Your Honours have. Because when we come to cross-examine a

25 witness it would be useful for us to know whether you have this past

1 statement or that past statement. Otherwise we are in the dark.

2 JUDGE AGIUS: I don't know actually if there is a -- I don't think

3 there is even --

4 MR. JONES: Or a schedule.

5 JUDGE AGIUS: Because basically these are handed by the

6 Prosecution not as a binder. We create the binder, our respective

7 secretaries create the binder --

8 MR. JONES: It just to keep track of which statements Your Honours

9 have because it gets quite complicated --

10 JUDGE AGIUS: And then we go by name.

11 THE INTERPRETER: Could the speakers please not overlap. Thank

12 you.

13 MR. JONES: -- statements. That's my concern.

14 JUDGE AGIUS: Yes, exactly. We go by name. For example, if it is

15 Witness C001 who is the first witness, he will have a separate binder and

16 that will be Witness C001. If it's a short, very few -- it's not

17 voluminous, we may include in that binder witness 2, witness 3, witness 4,

18 but that's how we --

19 MR. JONES: I understand that, Your Honour.

20 JUDGE AGIUS: And that's how we keep the records. At least far as

21 I am concerned.

22 MR. JONES: Absolutely. Perhaps I wasn't entirely clear. We

23 would appreciate from our side knowing that when a witness comes to be

24 examined that Your Honours have, say, a statement from '92 and a statement

25 from '94 so that we at least know from the start which statements you

1 have.

2 JUDGE AGIUS: That usually comes out in the course of the

3 examination or the cross-examination.

4 MR. JONES: Of course, Your Honour.

5 JUDGE AGIUS: Because most of the time he is asked -- or she is --

6 the question is put to the witness: Did you give such statement, et

7 cetera. And if we don't have it, I would immediately point out to the

8 Prosecution that we don't have this statement. It has happened in the

9 past. You always will have more than what we will have. I can assure you

10 of that. Because you got disclosure of several documents that we don't

11 get unless they are tendered in evidence. Otherwise we refuse them

12 point-blank.

13 MR. JONES: Indeed, Your Honour. It was simply a request to be

14 kept in the loop as to what you have.

15 JUDGE AGIUS: Yes, yes. But that will be as we go along dealing

16 with witnesses. You will realise what we have and what we don't have.

17 MR. JONES: Obliged, Your Honour.

18 JUDGE AGIUS: So the length of the case, Prosecution case. For

19 the time being -- obviously for the time being I can't commit the Trial

20 Chamber to the time which will be required for the Defence to --

21 Mr. Wubben, I know we discussed this before, and I'm going to --

22 I'm trying to bargain with you now, trying to squeeze the Prosecution a

23 little bit further. Allowing for -- time for debating certain legal

24 issues that necessarily have to arise from time to time, allowing for

25 regular housekeeping time that is needed in the course of the trial,

1 allowing for the time that you have already estimated you require for

2 examination-in-chief, and roughly calculating the same time being needed

3 by the Defence, may I ask you again to tell the Trial Chamber what is the

4 maximum you anticipate is needed for the termination of the case, of the

5 Prosecution case.

6 MR. WUBBEN: Your Honour, may I refer to the list prepared by me

7 and -- showing total number of hours of approximately 174 and adding what

8 might probably and happy to know that 94 bis (C) turned out to be

9 viva voce, then it should be around 180 hours. And in addition, it means

10 around 11 weeks, 12 weeks. I should also refer to your remarks, Your

11 Honour, when it comes to cross-examination, Defence counsel clearly

12 stipulated 100 per cent or more and already showed some examples in which

13 it might even be 200 per cent or 300 per cent. So -- anyhow, around 12

14 weeks. Thank you.

15 JUDGE AGIUS: That allows also for time to debate legal or

16 procedural issues that may arise?

17 MR. WUBBEN: Your Honour, when it comes to those debates I have no

18 overview at this moment for any duration in time for legal issues.

19 Defence counsel already made it clear that there will be legal issues,

20 submissions, and your Trial Chamber is, from a practical point of view,

21 focused on an expeditious trial. That means that from time to time we

22 need some sessions for housekeeping indeed and that will support us as

23 well. But that should be added of course to those weeks that I mentioned.

24 Thank you.

25 JUDGE AGIUS: I don't think you have submissions on this except in

1 regard to the time you think you require for cross-examination, which of

2 course depends on the examination-in-chief. So...

3 MR. JONES: Yes. Well, Your Honour, I would refer - Your Honour

4 probably doesn't have it in front of you - to a letter which we wrote on

5 the 30th of September, and it was copied to the senior legal officer of

6 the Chambers. And I draw attention to that letter because from the

7 Defence we are in the special position that if the estimate is wrong we're

8 actually financially penalised. I don't think there's any secret about

9 that. That's how the registry system works. So we have a particular

10 concern in accurately predicting how long the trial will be. And our

11 particular concern is that at least every item, that there be some

12 calculation for each item, whether they are different -- there's a

13 difference in estimates, that everything be taken into account.

14 So in that letter, we point out that you have the Prosecution

15 case, first of all, they have estimated their time for

16 examination-in-chief, it's time for our cross-examination, obviously time

17 for re-examination, time for questions by the Judges, motions. And then

18 that's the estimate for the Prosecution case. Then of course we have the

19 Defence case and we have all those categories again. We have Prosecution

20 evidence in rebuttal, Defence evidence in rejoinder, and evidence ordered

21 by the Chamber pursuant to Rule 98. Those are rule stages contemplated in

22 the rules and we have no interest in drawing out the proceedings. We want

23 to make ensure that there is a realistic assessment of all those stages.

24 As far as cross-examination is concerned, Dr. Gow is an entirely

25 special, separate category. He provides the whole background, the whole

1 framework against which this case is to be seen. And as I said also, the

2 Prosecution case will be -- the Prosecution examination-in-chief will be

3 shorter because we are agreeing that he can be led for a large part of his

4 evidence to save time. So it's certainly not the case that we're going to

5 be taking 200, 300 per cent of the examination-in-chief. That's just

6 Dr. Gow.

7 [Trial Chamber confers]

8 JUDGE AGIUS: We have heard what -- the submissions of the

9 parties. We are going to adopt an approach which will make it imperative,

10 important, that each one of you will consider yourselves committed to this

11 time limit. We will be -- we will move -- we will extend only if there

12 are grave reasons, otherwise we are going to stick to this time limit that

13 we are going to give.

14 So basically pursuant to Rule 73 bis, if I remember well, of the

15 Rules we come to the following determination: We are giving the

16 Prosecution a total maximum of 26 weeks to complete the case. Basically

17 this means 130 court days. The amount of time should include

18 examination-in-chief, cross-examination by the Defence, and any

19 re-examination. And almost needless to say, this has to include also time

20 which may be required by each one of us who decide to put questions to

21 witnesses, which we may decide to do from time to time, as well as

22 housekeeping matters and possibly discussions of motions. This is why I

23 am extending it from 24 weeks, that would have reflected what Mr. Wubben

24 said, to 26 to allow for all contingencies and all possibilities. If we

25 go -- if we miss the mark completely, then obviously we will need to

1 revise the position. But I don't think if everyone sticks to the

2 commitment we should find ourselves in that predicament.

3 MR. WUBBEN: Your Honour.

4 JUDGE AGIUS: Yes.

5 MR. WUBBEN: I apologise, and I should have addressed it earlier,

6 but it is beyond my own scope and it is your information in an earlier

7 stage. There was a couple of weeks ago some information confirmed that in

8 the month of November there might be two weeks --

9 JUDGE AGIUS: I'm coming to that.

10 MR. WUBBEN: I'm sorry.

11 JUDGE AGIUS: I'm coming to that. You will have noticed that I

12 mentioned 26 weeks, and then I also mentioned court days, 130. And it's

13 precisely because of what I am going to come up with. There will be, as

14 we go along, the need to have interruptions, intervals, so that either you

15 or the Defence will reorganise a little bit themselves, regroup. There

16 may be the need to examine fresh information that comes along. So as is

17 the practice in all the trials, there -- we may stop from time to time for

18 a short time until this is dealt with.

19 There will be a stop for sure in the beginning of November, a

20 two-week break in the beginning of November. This is needed because time

21 is needed for particularly the Trial Chamber to take stock of the amount

22 of evidence that would have been brought forward in the meantime and also

23 for you to revise a little bit the situation as it will obtain at the

24 time. And then we should be able to reconvene immediately after. But

25 please be prepared that there will be this stoppage in early November and

1 that you should try to utilise the -- those two weeks as best as you can

2 to then proceed -- be able to proceed with the trial in a more efficient

3 manner.

4 We will normally sit five days a week unless, as sometimes

5 happens, things go wrong, and we will have to sit a day less, for example,

6 if we finish with one witness and the other is not already here. But do

7 plan for a five-day week. Do plan for a five-day week. You should

8 schedule the arrival and departure of witnesses in the most economical way

9 possible for the Tribunal. In other words, if a witness is going to begin

10 giving the evidence on Wednesday of next week, there is no point in

11 bringing that witness on the Tuesday of the week before or the Wednesday

12 of the week before and keep that witness here for an entire week for

13 briefing purposes and so on and so forth.

14 So this I leave in your hands. I know that you have a policy that

15 you adhere to.

16 When we say that we will be allocating, for example, so many

17 hours, so much time, for the Prosecution and for the Defence to -- it

18 doesn't mean to say that we have to use all that time. If we can

19 economise on that time and finish earlier, we'll try to finish earlier.

20 In other words, there may be moments -- I mean, from what I can see so

21 far, there may be witnesses coming forward who may be repeating events

22 or -- events that others would have testified upon. If at any point in

23 time we see that there is no such need to go through this -- these

24 repetitions, we might call upon you, be it the Prosecution or the Defence,

25 to cut short depending on what the matters are. But there are some

1 matters, obviously, which appear on the face of it to be repetitions and

2 we may interfere there. But I do want to appeal to you to economise on

3 time as much as you can.

4 As we see it, there will be a two-week break in the beginning of

5 November. There will then be no further need for any breaks until the

6 Christmas and New Year break. Before we come to the end of the

7 Prosecution case, there will be Easter and there will be another break in

8 Easter. As I see it, if we're still talking of 130 court days from today,

9 taking into consideration the various breaks that we will have, this --

10 the Prosecution case will take us up to sometime in May of next year for

11 completion. So this is what more or less we are envisaging at the present

12 moment. Of course there will be -- if there is a need for further

13 stoppages, et cetera, we will consider that, but only if it appears

14 necessary to have further breaks. I do not exclude that these may come

15 necessary either for you or for the Defence. These are very taxing and

16 demanding trials, and sometimes situations are such that breaks are

17 required. And then we'll try to compensate in some other way as we go

18 along.

19 Also our registrar -- our registrar will communicate with you in

20 regard to the sittings in the week starting on the 18th and 19th of

21 October, but this will be done later on. You will receive the

22 information.

23 I think there isn't much left. I think we can finish now unless

24 there are any other issues that you would like to raise before we adjourn.

25 Are there any remarks, comments, or anything that I may have missed

1 completely that you would like to raise?

2 MR. WUBBEN: No. Thank you, Your Honour.

3 JUDGE AGIUS: Yes. Thank you.

4 Madam Vidovic or Mr. Jones?

5 MS. VIDOVIC: [Interpretation] No. Thank you, Your Honour.

6 JUDGE AGIUS: I think we have everything. I had another note

7 here, but this has been dealt with. It's about outstanding disclosure

8 matters. I think you -- the approach and the attitude from both of you is

9 praiseworthy and it's very positive. So I think we can leave it at that.

10 So we will adjourn until tomorrow, and tomorrow we are going to

11 have the first witness. How long do you anticipate the first witness to

12 last? Mr. Di Fazio.

13 MR. DI FAZIO: If Your Honours please, it depends, to a certain

14 extent on the actual manner, the physical manner of producing --

15 JUDGE AGIUS: He's your witness. If there is a witness who is

16 really your witness, this is the witness.

17 MR. DI FAZIO: What I propose to do is to have the evidence in

18 court, it's a selection of the Prosecution exhibits. We've accepted your

19 invitation to put it in in staggered form, although I must say it's a

20 large chunk of the Prosecution evidence. So what I propose to do is to

21 take the witness through her annex and to describe the methods of

22 obtaining the evidence and other relevant issues and then to tender the

23 material as a whole having done that, having completed that aspect of her

24 evidence. And then she'll be available for cross-examination.

25 To get her to describe all of that and comment on various aspects

1 of the material in her annex, and Your Honours will see it's the seizure

2 details that's the really important part.

3 JUDGE AGIUS: Oh yes, of course.

4 MR. DI FAZIO: It's that part that I'm interested in and the

5 Trial Chamber will be interested in. I'm hoping an hour and a half to two

6 hours. I'm hoping.

7 JUDGE AGIUS: I haven't gone through the file as yet, to be honest

8 with you. I had it on my desk this morning, but I had to make choices.

9 It was too much to read before I could even hope to start the sitting. I

10 will take it home with me and go through it.

11 MR. DI FAZIO: It's fairly simple material, if Your Honours

12 please. It's basically methods that are adopted within the Tribunal --

13 within the OTP I should say.

14 JUDGE AGIUS: Well, if you follow the system that we adopted in

15 Brdjanin, for example, Mr. Inayet.

16 MR. DI FAZIO: I've read that transcript.

17 JUDGE AGIUS: But Mr. Inayet came here on more than one occasion

18 obviously because we were having the documents come in at intervals and

19 some of them were obtained in the course of the trial itself. So they

20 were new documents.

21 MR. DI FAZIO: Well, the same will happen here.

22 JUDGE AGIUS: Yeah.

23 MR. DI FAZIO: I'm hoping that will happen fairly quickly in the

24 trial and that this whole exercise will be completed within a few weeks.

25 JUDGE AGIUS: I think so.

1 MR. DI FAZIO: And certainly by tomorrow's end of business you'll

2 have the large -- the lion's share of the Prosecution material.

3 JUDGE AGIUS: That's very good. I think you're approaching it in

4 a professional manner, and I think it should help us a lot in the

5 beginning and at the end. That will also be very valuable for the Defence

6 in at least seeing the parameters of -- within which you can then direct

7 your cross-examination.

8 MR. JONES: Yes, Your Honour. It's perhaps a matter we can see

9 tomorrow exactly how to proceed. We're not sure whether we'll be heard in

10 our objections before the exhibits are admitted as well as having

11 cross-examination. It's something which we can deal with tomorrow.

12 JUDGE AGIUS: No. We will deal with it tomorrow obviously. But

13 the approach will be the following: We will not be discussing in front of

14 the witness submissions. We will not be making submissions in the

15 presence of the witness. I'm making that very clear. The witness is

16 being brought here to give the Trial Chamber, and obviously to you as

17 well, all the information that is available with regard to provenance, the

18 way these documents were obtained and the way they were custodied before

19 being brought here. Obviously if you have questions to put to the witness

20 in relation to either the seizure or to the custody or whatever, I mean,

21 you will have all the time you require to put those questions but not

22 submissions. We will not be dealing with authenticity issues tomorrow.

23 You can put questions related to authenticity, to provenance, and

24 whatever, but not submissions in the presence of the witness.

25 MR. JONES: I understand that, Your Honour. To take a concrete

1 example, if the witness produces an exhibit for which there's, for

2 example, let's say no information on provenance, our question is: Should

3 we have our objections -- should we make our objection at that point

4 during the examination-in-chief --

5 JUDGE AGIUS: Yes, yes, yes, yes. In fact, what you are expected

6 to do is the following, Mr. Jones and Madam Vidovic: I would imagine --

7 if necessary, we will direct the proceeding to be as follows: The witness

8 will be here and the Prosecution will be putting to the witness the

9 various documents which the Prosecution intends to tender in evidence. I

10 would imagine these are going to be categorised. For example, we may have

11 a set of documents - I'm just imagining for the time being - that were

12 obtained by investigator X from the police station in Vlasenica, for

13 example. I'm just inventing an event. And you will hear what the witness

14 has to say. If you want you can question the -- cross-examine the

15 witness. And if you want to object to those documents, you can enter the

16 objection then. I mean, you're expected to. You are also expected to say

17 why you are objecting but not argue the case. The case will be argued

18 later. Okay. The case will be argued -- in the course, for example, in

19 other trials, some objections were entered in the beginning, and as we

20 went along obviously it was no longer the case of keeping those

21 objections. At the end of the trial we will revise -- I will call up on

22 you, I will be keeping records of all these documents and when objections

23 were made, if they had been withdrawn, if it is the case of having them

24 withdrawn and so on, and then at the end of the trial before we adjourn

25 for our deliberations, one of the things that we will deal with is which

1 documents are still objected to. This is how I will be suggesting the two

2 Judges to agree -- as a modus operandi.

3 But this matter is visited in the beginning, it's visited in the

4 end, and the decision of what will remain in or what will go out, we will

5 take at the end of the day, after taking into consideration everything.

6 But tomorrow, yes, you would be expected to say, yes, I object to this

7 document because of this and because of that -- for example, because I

8 contest the authenticity or I contest the provenance of --

9 MR. JONES: Yes, I understand there essentially will be three

10 stages. During examination-in-chief we'll express an objection if we have

11 one.

12 JUDGE AGIUS: Yes.

13 MR. JONES: We'll also cross-examine subsequently on the document,

14 and subsequently we may also make separate submissions --

15 JUDGE AGIUS: But not in the presence of the witness.

16 MR. JONES: No. Submissions I mean subsequent in the trial.

17 JUDGE AGIUS: Yes, Mr. Di Fazio.

18 MR. DI FAZIO: Just one matter. I'm grateful to the Trial Chamber

19 for the extra hints and guidelines on the procedure for tomorrow.

20 But to just answer a matter Mr. Jones raised. He asked whether or

21 not they would be required to cross-examine on pieces of evidence for

22 which there is no evidence of provenance. What I propose to do - and

23 you'll see it in the annex- is that some of the spaces are blank in --

24 those will not be tendered tomorrow. It's only where there is commentary

25 by the author of the annex that the Prosecution will seek to tender into

1 evidence the -- so there is something of provenance next to the item.

2 JUDGE AGIUS: And these are not matters that are arising the first

3 in this trial. They have arisen in each and every trial, and there is an

4 easy way to deal with them.

5 I will be, together with Judge Brydensholt and Judge Eser, dealing

6 with each document as it arrives. And our intervention will be limited as

7 much as possible within the parameters of the guidelines we explained this

8 morning. But what we certainly don't want is a debate on matters -- on

9 issues of admissibility in the presence of tomorrow's witness. Obviously

10 with other witnesses, if, for example, you are contesting all -- the

11 authenticity of all documents supplied or given to the Tribunal by, I

12 don't know which institute, I don't know which government, I don't know

13 which person, which could be the case. Okay? At that point in time if

14 tomorrow Racine Manas will say: This set of documents, from number 1 to

15 number 20, were obtained from the security services centre of I don't know

16 where, and you believe that that is not a reliable source, you will stand

17 up and say: We object to the admission of these documents because we do

18 not consider the source as a reliable one. And the matter ends there.

19 You're not going to question the witness whether it's on the reliability

20 of that source tomorrow --

21 MR. JONES: Your Honour, I suppose, though, if -- obviously in the

22 rules we're permitted to cross-examine on an area which may --

23 JUDGE AGIUS: Yeah. But the thing is tomorrow's witness is not

24 going to be the witness who will be in a position to guarantee the

25 reliability of a source. What you can ask the witness is indeed whether

1 she can confirm that the documents were obtained from that source.

2 MR. JONES: Indeed.

3 JUDGE AGIUS: And by whom and when.

4 MR. JONES: But to clarify what the source is. For example, if we

5 have information that the source is X, we can ask the witness what

6 precisely is that source, can you clarify.

7 JUDGE AGIUS: Yes, definitely.

8 MR. JONES: Just to make that clear.

9 JUDGE AGIUS: But we will not be debating tomorrow the reliability

10 of that source.

11 MR. JONES: I will only ask the witness what's within her

12 knowledge.

13 JUDGE AGIUS: All right. But that's important. Then as we go

14 along obviously we will have to refine this exercise. There will be

15 witnesses to whom some of these documents will be referred and which may

16 require you to cross-examine on several details and on reliability and all

17 that, depending on who the witness is. I don't know.

18 Yes, Mr. Di Fazio.

19 MR. DI FAZIO: I was just standing because I saw Your Honour

20 looking at me and I thought you wanted me to address you.

21 JUDGE AGIUS: I looked at you because I saw you looking at me.

22 That brings us to the end. We will reconvene tomorrow morning. I

23 think, once more, you have shown a lot of cooperation in today's sitting

24 which, as a result, we have been able to conclude -- to cover a lot of

25 territory and also bring to a determination a lot of issues. I appreciate

1 that and I'm saying this on behalf of the other two Judges, which I'm sure

2 agree with me.

3 Tomorrow we will start with the first witness and we'll reconvene

4 at 9.00. Thank you.

5 --- Whereupon the hearing adjourned at 12.41 p.m.,

6 to be reconvened on Friday, the 8th day of October,

7 2004 at 9.00 a.m.

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