Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12275

1 Tuesday, 24 April 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 10.31 a.m.

5 JUDGE BONOMY: Mr. Hannis, it would assist the Trial Chamber if

6 you were to briefly outline where we are now and what you suggest ought to

7 happen.

8 MR. HANNIS: Thank you, Your Honour. First of all, I would

9 address the issue of General Clark. In light of Appeals Chamber decision,

10 Your Honour, we have decided or sort of reached the end of our road with

11 General Clark, in terms of our Prosecution case in chief.

12 We -- so we will no longer be attempting to add him to our witness

13 list at this point, but that leaves us with the matter of Zoran Lilic,

14 Your Honour. Mr. Stamp is here to address the Court about the situation

15 with him and our request concerning trying to have him testify in our case

16 in chief.

17 JUDGE BONOMY: Thank you, Mr. Hannis.

18 Mr. Stamp.

19 MR. STAMP: May it please you, Mr. President, Your Honours, the

20 Prosecution on the 10th of April filed a notice indicating what the

21 situation then was in respect of Mr. Zoran Lilic; and in that notice, we

22 indicated that should the appeal in respect to General Clark be dismissed,

23 we would move the Court to allow us to bring the witness to testify today,

24 the 25th. Subsequent to that --

25 JUDGE BONOMY: I think that would be tomorrow, in fact.

Page 12276

1 MR. STAMP: Yes, indeed, tomorrow would be the 25th. Yesterday,

2 we filed a response to the Defence application, that we should be ordered

3 to close the case and the Court would not have the benefit of hearing

4 Mr. Lilic. And in that response, we set out the present facts and

5 circumstances in respect of Mr. Lilic. He has been served with a subpoena

6 by the district court. He has indicated he's willing to attend. However,

7 for his personal health reasons, he would not be able to attend this week

8 but for the week beginning the 1st of May, and that is the application.

9 The facts supporting the application are set out in the filing of

10 the 10th of April and the filing of yesterday evening. It clearly is a

11 matter of the exercise of a discretion, which is within the jurisdiction

12 of this Court. The Prosecution has shown, it is submitted respectfully,

13 due diligence in trying to get him here.

14 There is, of course, the issue of prejudice to the Defence, and

15 the Court is, it is respectfully submitted, quite capable of balancing the

16 interests of justice in hearing such an important and unique witness -

17 that is what I'd like to stress; a unique witness - in circumstances where

18 the inconvenience of the Defence would be just a matter of a couple of

19 days. The 1st of May is just three court days away from today.

20 JUDGE BONOMY: With the papers, there is an official note.

21 MR. STAMP: Yes.

22 JUDGE BONOMY: It's confidential, but my reference to it won't, I

23 think, raise any issue of breaching confidentiality. It says that he will

24 be able to respond to the summons on the 29th of this month or the 6th of

25 May; whereas, your submission doesn't refer to the 6th of May. What is

Page 12277

1 the position?

2 MR. STAMP: The Victim Witnesses Unit and the relevant officers of

3 the Tribunal have started proceedings to get him here on the 29th of

4 May -- 29th of April, which I think is a Saturday or a Sunday. Therefore,

5 he would be available to come to court on the 1st of May. We proceeded on

6 that basis because we wanted to get him here at the earliest opportunity

7 that he indicated his health would afford or enable him to travel.

8 JUDGE BONOMY: And there is reference to other conditions relating

9 to attendance as well as an indication of a need for company. There

10 appear to be a number of complications yet to be a addressed, Mr. Stamp.

11 MR. STAMP: We are in the process of addressing all of them.

12 Those persons who will accompany him or who he has asked to accompany him,

13 we will do what is necessary and appropriate in that regard. He has

14 testified here before; and when he did attend here to testify in the past,

15 there were persons who accompanied him and who were present in court, and

16 I think - I think, I'm not sure - had the right of audience while he was

17 present in court a representative of the government of the FRY at the time

18 and also his own personal legal representative.

19 We have not been able to speak with him, and we don't know what is

20 the nature of the additional person. One person is his doctor. We don't

21 know the nature of the additional person who is to accompany him. When we

22 do discover that, we will, if necessary, make an appropriate application

23 or at least a notification of that to the Court. However, as far as the

24 transportation is concerned, my understanding is that we are taking all

25 necessary and reasonable steps to have both Mr. Lilic and his medical

Page 12278

1 doctor and other representative here for that date.

2 JUDGE BONOMY: I take it you accept that there are a number of

3 factors raised in this official note which formed no part of the previous

4 report regarding the witness, which was filed on the 10th of April; and

5 that in that report, a quite different reason was given for his

6 non-attendance.

7 MR. STAMP: In --

8 JUDGE BONOMY: That's the one he said would be here this week but,

9 the reason he couldn't be here until this week is a quite different reason

10 from the one that's now being given of the various reasons that are now

11 being given for his non-attendance.

12 MR. STAMP: The reasons are different, and we have not been able

13 to inquire of him as to --

14 JUDGE BONOMY: For example, one of them - and this isn't

15 confidential - relates to a visa. Now, you arrange visas for people.

16 That's not a problem for his attendance, surely.

17 MR. STAMP: We are settling that issue.

18 JUDGE BONOMY: He seems to be latching on to it, and it's clearly

19 an irrelevant issue for this particular witness.

20 MR. STAMP: The declaration reproduces what he said, and I don't

21 know his state of knowledge. As I said, we have not had an opportunity to

22 interview him; and perhaps if we do, these concerns that he has raised

23 might be explained. But the two main reasons that were given relating to

24 medical health of himself and another person, without going into any

25 further details, are different but not, it is submitted, necessarily

Page 12279

1 inconsistent.

2 JUDGE BONOMY: Thank you, Mr. Stamp.

3 MR. STAMP: Thank you, Mr. President, Your Honours.

4 [Trial Chamber confers]

5 JUDGE BONOMY: Now, Mr. Stamp, the separate basis for opposing

6 your motion relates to an alleged failure to disclose material. And in

7 paragraph 7 of the Defence submission, it is said that the Prosecution was

8 in possession of this material and that it was in the actual knowledge of

9 the Prosecution for a considerable period. And it is suggested that there

10 are over 4.000 pages of new material; and in your response, I think you

11 say that you concede the lesser amount, but I think is it 800, over 800

12 pages?

13 MR. STAMP: Yes, Your Honour.

14 JUDGE BONOMY: You're pointing to the fact that the pages which

15 need to be reviewed by the Defence amount to 859, which are identified in

16 your schedule.

17 Is it your submission that you have not had this material for the

18 length of time that the Defence suggest?

19 MR. STAMP: I am not sure if the Defence suggested a length of

20 time. They said a considerable period. I'm not sure when the material

21 was received. What I do know is that most of this material came up in a

22 search that was done in April, the vast majority of these materials.

23 These are newspaper reports that were obtained from various archives, I

24 think, belonging to institutions or NGOs that over a period of time handed

25 them into the Tribunal.

Page 12280

1 JUDGE BONOMY: What was the particular nature of the search in

2 April that would reveal material which may have been there before but

3 hadn't been revealed to you in some way?

4 MR. STAMP: To go into the operations of the evidence unit, of

5 which I am not completely conversant with, I know that most of what we

6 call open source material; for example, newspaper reports that we get from

7 various organisation that collect them, for example, organisation that

8 collect the newspaper reports from the former Yugoslavia, the Balkans,

9 were not put in the system electronically until recently. Therefore, they

10 would not come up in searches -- in all searches.

11 What has happened - and this is something I should point out as

12 well - is that with the advent of the electronic disclosure system, this

13 material which was here unstamped, that is without ERN numbers, and not it

14 scanned into the system was then scanned into the system to be made

15 available to the Defence if they wanted to do their research or their

16 searches for these material on EDS.

17 The up shot of what I'm saying - without going into an area that

18 I'm not completely familiar with - is that in many cases, open source

19 material, newspaper reports, were scanned into the system just, recently

20 and I can't how recently, but they would not come up in the earlier

21 electronic searches in the system.

22 JUDGE BONOMY: If you take as a particular example, it's said here

23 that there are seven CDs of raw video interview of Mr. Lilic which were

24 not disclosed before, is that accurate, that this was not disclosed?

25 MR. STAMP: I think, and I could check this and give a very

Page 12281

1 accurate answer, but I believe these CDs were received very recently. I

2 believe the BBC interviewed Mr. Lilic, and extracts from the interview

3 were part of a BBC programme in respect of former Yugoslavia and that was

4 disclosed. An effort was made recently to obtain the raw footage, and the

5 raw footage was obtained and disclosed. And that is something I'd like

6 to confirm, but I believe the raw footage was not something that has been

7 in our possession for a considerable period of time.

8 JUDGE BONOMY: You have the Defence submission and the schedule

9 attached to it?

10 MR. STAMP: Yes, Your Honour. But before we proceed, may I just

11 confirm that with respect to the raw footage, we came into possession of

12 it on the 17th of April this year. In other words, we had the BBC

13 programme in which there were extracts of the interview. We thought it

14 would be helpful to give to the Defence or find the entire interview and

15 give it to the Defence, which is what we did. Sometimes in being overly

16 helpful, it can result in inconvenience, I suppose is a more --

17 JUDGE BONOMY: When did you have that idea?

18 MR. STAMP: The idea?

19 JUDGE BONOMY: Of getting the raw footage? How long has it taken

20 you to get it?

21 MR. STAMP: I don't know how long it took to get it.

22 JUDGE BONOMY: It's difficult to justify postponing a trial

23 because all of a sudden you had an idea to go and look for more material

24 and you got it back, and you thought it might help the Defence and you

25 send it to them, especially when they don't want it.

Page 12282

1 MR. STAMP: I'm not commenting on their position whether as to

2 whether they wanted it or not.

3 JUDGE BONOMY: It would help us to know how long, for example,

4 you'd been trying to get this material. Was it just a thought in March,

5 or was it something that had been ongoing for sometime?

6 MR. STAMP: Again, I can check to confirm what I'm about to say.

7 I believe it was originally requested sometime ago during the Milosevic

8 trial. Efforts were made to get it. There was a waning to some degree in

9 terms of trying to get it, in way of efforts in trying to get it. But it

10 has been something that we have been trying to obtain for a long period of

11 time.

12 JUDGE BONOMY: If you look at page 5 of the schedule, which the

13 Defence have provided, identifying what has been disclosed, you'll see

14 right in the middle of page 5, I have has already disclosed some time ago

15 interview, unedited, of Zoran Lilic. Now, is that the same interview in

16 some other form than the CD recordings?

17 MR. STAMP: Thank you. These -- the material identified in the

18 middle as interview, unedited of Zoran Lilic by the Brook Lapping TV

19 Production Company, these are the transcripts of the extracts of the

20 entire interview that was conducted.

21 JUDGE BONOMY: They are transcripts of the extracts, the shorts,

22 that's the parts that were broadcast in the documentary?

23 MR. STAMP: Yes, I believe so.

24 JUDGE BONOMY: So why the word "unedited"?

25 MR. STAMP: I am not entirely sure why the word "unedited" is

Page 12283

1 inserted here. I can -- well, let me not guess. I should advise the

2 Court to be absolutely correct that we requested and obtained the

3 transcript, the unedited transcript, during the Milosevic case. And the

4 raw material, the video itself, we requested and obtained that recently.

5 JUDGE BONOMY: Having said that, though, Mr. Stamp, the number of

6 pages involved is only 42, I think, which is difficult --

7 MR. STAMP: That is why I indicated that I could not explain why

8 it says unedited. That does indicate that it was edited.

9 JUDGE BONOMY: So what are you telling me? That you disclosed the

10 full transcript, unedited, of all the interviews at an earlier stage?

11 MR. STAMP: No.

12 JUDGE BONOMY: No. All right. And did you have a full transcript

13 of all?

14 MR. STAMP: That is not known.

15 JUDGE BONOMY: Could you go also to page 1 of this schedule? And

16 there are two items -- in fact, there are three. Let me change that.

17 There are four I want to ask you about specifically.

18 The second blacked out section, "Letter dated the 30th April from

19 Lilic to Milosevic"; and then the next blackout section, "Letter by Lilic

20 to Milosevic dated the 30th of April," which I presume is a different

21 letter. It certainly has different numbers, although the same date; and

22 then the next section, "Letter dated 5th May 1999 by Lilic to Milosevic,"

23 and the third line of that section, "Unsigned ICTY witness statement of

24 Zoran Lilic dated the 4th of December 2001."

25 Now, have these four documents -- you tell me how long have these

Page 12284

1 four documents been in the possession of the ICTY OTP?

2 MR. STAMP: Now, I must confess that I could not say precisely. I

3 could look at the ERN numbers and conclude that they have been in our

4 possession for a matter of years. Your Honour, I would like to make

5 further checks as to whether or not these documents were in fact not

6 disclosed to the Defence at some earlier period. The Defence has

7 represented that they were not, and I do not object to that. But --

8 JUDGE BONOMY: You must agree with that if you have gone about

9 disclosing them at this stage.

10 MR. STAMP: Many times, Your Honour, when documents and material

11 are disclosed, even though when checks are made, it is discovered that

12 they had been disclosed before. Documents of this nature, I can indicate,

13 are likely to have been disclosed before, and I think -- I think it is

14 almost a certainty -- well, again, I can confirm that the statement would

15 have been disclosed, perhaps in another format with another number.

16 When these searches are done, sometimes a document comes up and it

17 is stamped with another number, and they are redisclosed. It happens

18 sometimes.

19 JUDGE BONOMY: I take it, though, that these were disclosed

20 because you believed they hadn't been.

21 MR. STAMP: They were disclosed at the time, it is my

22 understanding, because it was not confirmed that they had been in the

23 past.

24 JUDGE BONOMY: However, you're saying that the ERN numbers

25 attributed to these would suggest that you've had them a long time. Would

Page 12285

1 that not also suggest that they would be disclosed?

2 MR. STAMP: It would indicate to me. That is why documents of

3 this nature --

4 JUDGE BONOMY: So why on earth would you disclose them now, unless

5 you had a real reason to think they hadn't been?

6 MR. STAMP: The decision to disclose them, as I indicated, Your

7 Honour, would have been made because at the time in the process of the

8 disclosure, there was no confirmation that they had been disclosed. And

9 in those circumstances, the decision is normally taken to disclose, to

10 ensure that the material goes out to the Defence, even it is possible that

11 the Defence might have had them before. As I said, I cannot confirm the

12 Defence had them before, but I could check this.

13 JUDGE BONOMY: Is there anything else you want to say?

14 MR. STAMP: As I indicated, Your Honour has referred to some

15 documents which are important or appear to be important on the face of

16 them. I do know, in respect of unsigned statement, that at least one

17 unsigned statement, which was substantially the same as this unsigned

18 statement, was disclosed to the Defence a long time ago.

19 And in respect to the other matters that have been disclosed

20 recently, they are almost entirely open source material, newspaper

21 reports, without minimising what the Defence has to do, that it is

22 submitted would not prejudice the Defence in a manner that should preclude

23 this witness from testifying.

24 JUDGE BONOMY: Have you been properly recorded in the transcript

25 as saying, in respect of the unsigned statement, that at least one

Page 12286

1 unsigned statement which was substantially the same as this unsigned was

2 disclosed to the Defence a long time ago?

3 MR. STAMP: Yes, Your Honour.

4 JUDGE BONOMY: Is that one made at a different time?

5 MR. STAMP: In the procedure to get a statement from the witness,

6 an unsigned statement was entered into the system with a number, and an

7 attempt was made to have the witness sign it. He did not. A later

8 attempt was made to have the witness sign substantially the same statement

9 with a different number.

10 JUDGE BONOMY: But what does "substantially the same" mean? You

11 mean exactly the same or not?

12 MR. STAMP: Not exactly the same, I don't think. At least the

13 number would have been different.

14 JUDGE BONOMY: On what basis would it have been changed, for

15 example?

16 MR. STAMP: My understanding is that in all material particulars,

17 practically the witness statement is the same. There might have been an

18 additional person on the cover page for the interview. But in terms of

19 the material, the substance of the statement, they are the same. A second

20 attempt was made to have the statement signed; and when that attempt was

21 made, the statement had been registered into the system with a different

22 number. That had been served on the Defence.

23 JUDGE BONOMY: Finally, there is one document which is only

24 available in Albanian. When did you get it?

25 MR. STAMP: That is -- that is a document that I'll confirm

Page 12287

1 shortly about how long ago we had that document. However, that is a

2 document which the issue as to what part of it is relevant is a matter

3 that could be, I respectfully submit, addressed with the Defence.

4 Although the book has been disclosed, the notice indicates that there is

5 only one page in which there is any reference, but I think the page number

6 is not correct on this.

7 But I don't think the issue here is an entire book. The book,

8 when it is scanned, the reference to something relevant to the case might

9 have been picked up, and I believe we can address that to the Defence by

10 telling them precisely where in the book. I don't think the Defence --

11 and issues like this, I think, can be dealt with amicably between the

12 parties.

13 JUDGE BONOMY: It was also published in April 1998 and that may be

14 one reason why it's not terribly important, but can you answer the

15 question when did you get it?

16 MR. STAMP: In June 2001. The material like books, open source

17 material, publications, various publications, documentaries, et cetera,

18 come into the system by various means. They cannot be, because of the

19 sheer bulk of them, be analysed individually. It is just impossible to

20 have that manpower to do so. They have to -- we have to search for them

21 electronically and find means and methods of trying to have what results

22 from the search analysed by personnel that we have.

23 The system of doing electronic searches for certain key words in

24 archives with millions of pages of documents improves over time. Searches

25 that are sometimes done three or four years ago or two years ago will pick

Page 12288

1 up material using key words, but searches that are done now two years

2 later will sometimes pick up additional material because the systems that

3 are used have improved. However, it is impossible for us to try to find

4 these materials by any other means but electronic searches.

5 JUDGE BONOMY: This was a search, according to your own

6 submission, carried out after the stage at which you anticipated closing

7 your case in any event.

8 MR. STAMP: For this particular document, I do not know exactly

9 when the search -- which search picked it up. I believe it might well

10 have been searched in April. However, the searches are done from time to

11 time. If for some reason the Prosecution's case did not close next week,

12 and we continued in June, we would do a search in June; and if there is a

13 substantial improvement in the technology, then it is possible that

14 something might be found electronically.

15 JUDGE BONOMY: Surely, all of these documents now disclosed, which

16 were disclosed on was it the 17th of April? Surely, they all emerged from

17 the most recent search.

18 MR. STAMP: I believe most of them did. I could not say that they

19 all did.

20 JUDGE BONOMY: So how could you have exculpatory material at an

21 earlier date and not disclose it?

22 MR. STAMP: As I say, I believe most of them did. There is --

23 when we are speaking about so many documents, this is not the only

24 disclosure to the Defence. I think the Defence will tell that the

25 disclosure to them has been enormous, gargantuan in a case like this.

Page 12289

1 JUDGE BONOMY: In relation to Lilic. We are only concerned with

2 Lilic at the moment, bear that in mind.

3 MR. STAMP: But in respect of Rule 68, for a witness of this

4 nature, there is always the possibility - and that is why I answered the

5 question in that way - that some document might have come up in the system

6 and for whatever reason, error or oversight, might not have been

7 disclosed. So I believe that most if not all, I cannot say all, came up,

8 I cannot responsibly say that it is impossible that something from the

9 past, when we are dealing with so many searches and so much documentation,

10 might not have come up before and not been disclosed.

11 Part of the problem of disclosure here is that we are dealing with

12 a combination of doing reasonable electronic searches and then having to

13 analyse or to some degree review the results of those searches with scarce

14 personnel. And in those circumstances, I could only say that we do the

15 best that can be done, having regard to the present state of technology

16 available to us and personnel available to us.

17 JUDGE BONOMY: Thank you, Mr. Stamp.

18 Mr. O'Sullivan, who will address this issue for the Defence?

19 MR. O'SULLIVAN: I'll take the lead on that, Your Honour. So far

20 the questions from the Bench and the submissions by the Prosecution have

21 dealt only with Rule 68.


23 MR. O'SULLIVAN: Our submission goes beyond Rule 68, in asking you

24 to declare this case closed, but let me first address the Rule 68 matters.

25 We disagree that the electronic disclosure system alleviates any

Page 12290

1 responsibility of the Prosecution to not fulfil its obligations under Rule

2 68. There seems to be, we say, some misunderstanding on the part of the

3 Prosecution in relation to Rule 68. The Blaskic Appeals Chamber

4 judgement, and also the Krstic Appeals Chamber judgments, make it clear

5 that the duty on the Prosecution to disclose under Rule 68 is it is equal

6 to its duty to prosecute. The Prosecution is obliged to disclose any and

7 all material coming under Rule 68, even if there exists other information

8 of a general similar nature.

9 We used our best efforts over the weekend to determine which

10 material had not been previously disclosed to us. That's in our annex.

11 We disagree that the 859 pages identified by the Prosecution is sufficient

12 for us to deal with the over 4.000 pages that are new to us. Now, it may

13 be the Prosecution's view that there is only 859 pages. We certainly

14 would have an obligation under any measure of due diligence to examine all

15 those documents in their entirety, and perhaps focus on the pages the

16 Prosecution has identified under its review of those documents.

17 So we say that the Rule 68 has not been complied with in a timely

18 fashion. It's been incomplete. Yesterday, we received the 7 CDs, and we

19 still have the one document in Albanian. And might I add that Rule 68, of

20 course, includes information that may go to the innocence or mitigate the

21 guilt of the accused or the credibility of a witness. So we say that

22 those -- all those factors are matters that we have to examine in

23 preparation for the testimony of a witness.

24 But I said that our application requesting to you declare the case

25 closed and to proceed with 98 bis in fact is threefold:

Page 12291

1 First, and foremost, we ask you to enforce your order of the 23rd

2 of March which was clear. It was unambiguous that in if the paragraph

3 9(C), if the Clark Appeal failed, then the Prosecution must call

4 Mr. Byrnes and Mr. Lilic on the week of the 16th of April. Mr. Byrnes

5 testified and Mr. Lilic was not available.

6 But on top of that, given what happened on the 19th of April, with

7 the disclosure, we say the lack of disclosure, incomplete disclosure, that

8 we are not in the position to proceed and, therefore, you should exercise

9 your discretion and close the case.

10 JUDGE BONOMY: At the 23rd of March, if I -- or certainly if it

11 wasn't the 23rd of March, a day or two days beforehand, the Prosecution

12 position was to rest their case and take a chance on being able to justify

13 leading the evidence of Lilic on some other basis that one might try to do

14 that after the closure of the case; is that correct?

15 MR. O'SULLIVAN: I believe that submission was made in respect to

16 Clark, not Lilic or Byrnes.

17 JUDGE BONOMY: It couldn't have been made in relation to Clark.

18 MR. O'SULLIVAN: Correct. The position, as I remember it, was

19 that there would be a pending appeal; and if the appeal was successful,

20 then they would reapply to bring Clark. They had abandoned Lilic and

21 Byrnes.

22 Let me turn to 65 ter. Our position there is that this Chamber

23 had ordered, at the pre-trial stage, an annex C to the pre-trial brief,

24 which would cross-reference every exhibit the Prosecution wished to

25 tender, would cross-reference those exhibits to a witness. We've

Page 12292

1 identified, in our filing, all the exhibits that are not cross-referenced

2 to Mr. Lilic. The Chamber clearly ordered that in order to provide us the

3 opportunity to prepare for trial, to investigate and prepare a

4 cross-examination for every witness, including Mr. Lilic.

5 We say that that order is based on our right to confront each

6 witness, which is guaranteed by Article 21(4)(e) of the Statute, which

7 provides that we have a right to confront, a right to examine each

8 witness. Now, the Prosecution says, in their response, that under Rule 92

9 ter, all exhibits from the Milosevic trial would be part of the 92 ter

10 package. Well, our response to that again is to look at the pre-trial

11 brief. The pre-trial brief announced Mr. Lilic as a live witness who

12 would testify for 12 hours. There is no basis to say that the Milosevic

13 exhibits were a part or to be a part of his testimony. He was only

14 announced as 92 ter last Thursday.

15 So, again, since the pre-trial brief in 2006, we have been

16 operating on the assumption he would be live and accede to the pre-trial

17 brief announced which exhibits would be used, and the Prosecution cannot

18 be heard to say that we were put on notice prior to the 19th of April,

19 last week.

20 So those are the three bases for our request to have you close the

21 Prosecution's case; your order of the 23rd of March, and non-compliance

22 with 65 ter and Rule 98.

23 We've set out the prejudice in our -- Rule 68, excuse me. In our

24 motion, we set out the prejudice that we say we incur if this trial is not

25 closed. And might I add, we must say quite frankly to the Trial Chamber

Page 12293

1 that, so far, this has been a high-paced intensive case and well-managed.

2 For the last month, quite frankly, we have been floundering.

3 And we are asking the Trial Chamber to retake control of the

4 proceedings, declare the case closed, and guarantee and ensure to us a

5 fair and expeditious trial. We say the Prosecution should not control

6 proceedings, nor should a witness. And the prejudice and the detriment of

7 the accused far outweighs any interests which the Prosecution has. They

8 call Mr. Lilic an important and unique witness. At any time since last

9 July, they could have called him. They abandoned him.

10 The prejudice, as we've reiterated many times, to you in the last

11 month, is that we are not having an opportunity to prepare our case, our

12 Defence cases. We cannot intensely prepare as we've undertaken to do. We

13 have lost a month. The Trial Chamber had given us two and a half months

14 to file our 65 ter submission. I think there is a reason for that. You

15 wanted us to work diligently, intensively, and only on our Defence cases.

16 JUDGE BONOMY: That decision though was taken in light of the fact

17 that there was a certified appeal to be disposed of, and that has at least

18 yielded some bonus.

19 MR. O'SULLIVAN: At the same time that we are not working on our

20 Defence cases entirely, or the way we would like to, we are also juggling

21 two other balls. We are anticipating potential future witnesses, and we

22 are also trying to work on the 98 bis submissions, which is no small feat

23 given that they are completely oral. These issues, we want to presents

24 coherent 98 bis submissions and complete 98 bis submissions.

25 And Your Honour can appreciate that without the support of a

Page 12294

1 written brief, we are having to revisit this on a regular basis; because

2 when you take off the 98 bis hat and you start thinking about potential

3 witnesses and dealing with investigators in your Defence case, every five

4 or six or 10 days, you're going back to attempt to coherently prepare oral

5 submissions, lengthy ones that are meaningful to the Trial Chamber.

6 JUDGE BONOMY: You at least must have yours prepared because you

7 could be making them in half an hour.

8 MR. O'SULLIVAN: Well, we ask you to do the right thing, and we

9 say you should close the case and proceed to 98 bis.

10 JUDGE BONOMY: There is no technical issue here over who has to

11 close the case?

12 MR. O'SULLIVAN: Well, the Prosecution should be ordered to close

13 the case pursuant to your March 23rd order.

14 [Trial Chamber confers]

15 JUDGE BONOMY: The Chamber will retire to consider this.

16 --- Break taken at 11.27 a.m.

17 --- On resuming at 12.58 p.m.

18 JUDGE BONOMY: I suppose I should apologise, first of all, for

19 being early.

20 The Chamber doesn't find this an easy decision to take. We have

21 decided by majority to grant the Prosecution motion, which is to be

22 allowed to call the witness Zoran Lilic on the 1st of May.

23 In doing so, we have also decided to refuse to apply any sanctions

24 against the Prosecution in relation to the Defence submissions about

25 delayed or failure, it's really delayed, disclosure.

Page 12295

1 The Prosecution raised -- sorry. The Defence raised another

2 issue, which was the link between the witness and the exhibits, and

3 related that to the question of the format of the witness's evidence; in

4 other words, whether it was entirely live evidence or partially in

5 writing, in terms of Rule 92 ter.

6 Mr. O'Sullivan, now that we've decided to grant the motion

7 allowing the witness to give evidence, would you like to make any further

8 submission about whether that evidence should be entirely live or not?

9 And if you want time to think about that, obviously, you can be given

10 time. It's also one of these decisions that should probably be

11 provisional. It would be helpful to have a decision in principle, but no

12 doubt along the way that decision might change depending on the nature of

13 what it might be the Prosecution try to tender; in other words, an extract

14 from the transcript, for example, rather than what they are tendering at

15 the moment.

16 MR. O'SULLIVAN: Your Honour, we had prepared for this witness on

17 the assumption that he would testify live, and we think that's the way it

18 should proceed.

19 JUDGE BONOMY: Mr. Stamp.

20 MR. STAMP: May it please, Mr. President, right throughout this

21 case we have had situations where persons originally proposed as live

22 witnesses have, for the sake of convenience and with a view of putting in

23 effect the intendment of the revised -- or the new Rule 92 ter to shorten

24 the proceedings and to make more effective the presentation, and

25 naturally, of course, the witness has testified before on essentially the

Page 12296

1 same substance and has done so over a matter of days.

2 It may well be the most convenient and just approach, especially

3 in regard to court time, that he proceed in the way envisioned by the Rule

4 as it is now, as it has been changed. I would indicate that the 92 ter

5 document that the Prosecution proposes to tender is redacted, because it

6 is a significant amount of evidence he is able to give and it is redacted

7 of material related to the pre-indictment period or to other areas of the

8 territory of the former Yugoslavia.

9 So I respectfully urge upon the Court that the Prosecution be

10 allowed to put the evidence in pursuant to the provisions of Rule 92 ter.

11 JUDGE BONOMY: Thank you.

12 [Trial Chamber confers]

13 MR. STAMP: I'm sorry. There was one additional factor I was just

14 reminded of. This is a witness that we have had tremendous problems

15 getting here. Well, we haven't gotten him here yet. As the previous

16 filings would indicate, we have been trying over a year to find him. We

17 have not had an opportunity to speak with him, and, therefore, there will

18 be obvious difficulties and a lot of time that might be expended if the

19 Prosecution is not able to put in its evidence, especially his testimony

20 in the previous case, in written form.

21 We have not had an opportunity to speak to him as yet; and as Your

22 Honours are no doubt aware, the witness's evidence covers a huge amount of

23 material. That's all I wish to add.

24 JUDGE BONOMY: Thank you.

25 [Trial Chamber confers]

Page 12297

1 JUDGE BONOMY: In light of the Defence submissions about the

2 additional difficulties created by the Prosecution failure to relate the

3 exhibits to the evidence of the witness, and in view of the potential

4 importance of the evidence of the witness, we consider that it's

5 appropriate - and this is a decision in principle - that his evidence

6 should be given live. However, it will remain open to the Prosecution to

7 suggest, in the course of his evidence, the admission of portions in

8 writing, and we will review any such reasonable request made at the time.

9 Mr. O'Sullivan.

10 MR. O'SULLIVAN: Given your decision, can you indicate to us when

11 you would expect 98 bis submissions to commence?

12 JUDGE BONOMY: We will issue today, and at the latest tomorrow,

13 decisions on all matters outstanding in relation to the admission of

14 evidence. That means that if the witness is not produced on the 1st of

15 May, the likelihood is that we will hear 98 bis submissions there and

16 then.

17 If the witness does give evidence, we will obviously give

18 consideration to any motion you were to make in relation to the time at

19 which your submissions should commence.

20 Mr. Ackerman.

21 MR. ACKERMAN: Your Honour, I'm wondering if we may consider your

22 decision today that Mr. Lilic may testify beginning the 1st of May as in

23 effect a final decision on that issue, or is it still open to the

24 Prosecution to request additional delay?

25 JUDGE BONOMY: There will be written reasons given for this

Page 12298

1 decision, and, therefore, I am reluctant to say more here. The only thing

2 that is really preventing me being firmer about the implications of not

3 producing the witness on the 1st of May is the potential accusation that

4 the Trial Chamber has fettered its discretion in some way by making a

5 decision that can't possibly take account of all the circumstances as at

6 the 1st of May.

7 But you can take it that the Bench is firmly of the view that we

8 have already granted a great deal of indulgence to the Prosecution. I

9 don't want to put it any higher than that at this stage. Your question is

10 well intended, Mr. Ackerman, and you can see that we would hope next week

11 not to be faced with a dilemma.

12 Very well. We will adjourn now until -- can we check on the

13 timing next week at 2:15?

14 [Trial Chamber and registrar confer]

15 JUDGE BONOMY: The courtroom is currently assigned to us for 2.15

16 next Tuesday; but if 9.00 is available, then we will sit at 9.00.

17 Inquiries will be made, and you will be notified about that. So far as 98

18 bis is concerned, it should be possible to sit for longer each day to get

19 that dealt with, as long as courtroom space is available. But when it's a

20 matter of evidence, it would only be with the agreement of the parties

21 that we would extend evidence next week beyond the normal half day

22 sitting. But if you wish us to do so, then at your request, we will do

23 so, because it does provide a potential gain later in the preparation time

24 for the Defence case.

25 So we will adjourn now until 9.00 next Tuesday.

Page 12299

1 --- Whereupon the hearing adjourned at 1.13 p.m.,

2 to be reconvened on Tuesday, the 1st day of May

3 2007, at 9.00 a.m.