1 Thursday, 12 November 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.16 p.m.
5 JUDGE MOLOTO: Good afternoon to everybody in and around the
6 courtroom. Mr. Registrar, will you please call the case.
7 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon to
8 everyone in and around the courtroom. This is case number IT-04-81-T,
9 the Prosecutor versus Momcilo Perisic. Thank you.
10 JUDGE MOLOTO: Thank you so much, Mr. Registrar. Could we have
11 appearances for the day starting with the Prosecution, please.
12 MR. HARMON: Good afternoon, Your Honours. Counsel, everyone in
13 the courtroom. Mark Harmon, Dan Saxon, Lorna Bolton, Barney Thomas and
14 Carmela Javier for the Prosecution.
15 JUDGE MOLOTO: Thank you so much, Mr. Harmon. And for the
16 Defence, Mr. Lukic.
17 MR. LUKIC: [Interpretation] Good afternoon, Your Honours. Good
18 afternoon to everybody else in these -- taking part in these proceedings.
19 Mr. Perisic represented with Mr. Chad Mair, Mr. Gregor Guy-Smith, and
20 Novak Lukic as Defence counsel.
21 JUDGE MOLOTO: Thank you very much Mr. Lukic, and good afternoon
22 to you and welcome back, Mr. Guy-Smith.
23 This sitting was called for to deal with housekeeping matters.
24 First of all, before we even start, Mr. Harmon, would you like to place
25 on the record what is happening with -- if you have not already done so,
1 what is happening with the outstanding witness.
2 MR. HARMON: Yes. Yes, sir. The outstanding witness will not be
3 called, Your Honour.
4 JUDGE MOLOTO: Okay.
5 MR. HARMON: And that witness was Mr. --
6 JUDGE MOLOTO: Do you hear what I hear?
7 MR. HARMON: I don't. The outstanding witness was Milan Lesic.
8 JUDGE MOLOTO: Thank you so much.
9 Let's start with -- there are a number of things that we need to
10 talk about this afternoon before we -- the first thing I think we should
11 deal with is the question of MFI'd exhibits. Quite a number of them have
12 been MFI'd and on the understanding that we will hear later from the
13 Defence. Is the Defence in a position to tell us what the position is?
14 I'm told there are a lot of them. If your submissions are going to be
15 long, I would suggest that we deal with them outside court with the
16 opposite number, but if you are able to give one short blanket response
17 then we can deal with that.
18 MR. GUY-SMITH: With the Court's guidance in mind -- that's
19 better, yes. With the Court's guidance in mind, I had a brief
20 conversation with Mr. Harmon and the legal officer just moments ago, and
21 it seems that what will probably be both expedient and profitable would
22 be if there was one further meeting between the Defence and the
23 Prosecution with regard to the status of the MFIs. And I think it's fair
24 to say that we've come a long way, and I think it's fair to say that we
25 can come even further by virtue of some of the discussions that have been
1 had as between the parties concerning a fair number of exhibits. There
2 are certain conditions precedent to our accepting certain exhibits that I
3 think the Prosecution has no difficulty with. There are certain clear
4 arguments as between the parties, and with regard to that, I think we
5 probably, since you've put a suggestion with regard to oral as opposed to
6 written submissions, after such a session if the Chamber is in agreement,
7 that we probably would be in a position to make written submissions. It
8 had been our belief, and perhaps we were being a bit premature, it had
9 been our belief that we may be arguing all of the MFIs today orally, but
10 that would take a considerable period of time, and based upon what the
11 Chamber just said that would probably not be the way that you would
12 choose to go nor we would choose to go based on what was just said.
13 JUDGE MOLOTO: Thank you, Mr. Guy-Smith.
14 Mr. Harmon, how does that response impact on the status of the
15 Prosecution case? To be specific, resting or not resting?
16 MR. HARMON: Obviously we will not rest until we have the issue
17 of the exhibits resolved. And so that is how it impacts on the status of
18 the case.
19 JUDGE MOLOTO: Okay. I must come back to you, Mr. Guy-Smith.
20 How soon do you think this resolution can be arrived at? You suggested a
21 further meeting between the parties.
22 MR. GUY-SMITH: Well, I think that -- I think there is a somewhat
23 of a slight practical difficulty, and I have no desire to play ping-pong
24 with Mr. Harmon right now, but as I indicated before, with regard to a
25 fair number of these exhibits, there is a condition precedent. Let me
1 give you just a general example without arguing any particular piece of
2 evidence. There are certainly exhibits that require some form of either
3 redaction, augmentation, or correction. Once that occurs, after review
4 the Defence would be in a position, and we expect to be in a position to
5 accept that exhibit.
6 However, we are at the mercy of the Prosecution with regard to
7 those issues, because they have to perform a task before we are in a
8 position to review that information and then accept it. I mean, we could
9 provisionally say that we would agree to the following numbers of
10 exhibits upon certain numbers of conditions, but I don't think that would
11 be particularly satisfactory to the Chamber because we still would be in
12 a position where we're tending information. So as I started at the
13 beginning, I don't have any desire to play ping-pong with the
14 Prosecution, but in order to answer your question we need to get an
15 affirmative answer in response from the Prosecution as to when they will
16 complete the tasks that exist as to those issues that have heretofore
17 been discussed as between the parties.
18 JUDGE MOLOTO: Has the Defence given the task to the Prosecution
20 MR. GUY-SMITH: Well, we've either given it to them or they have
21 undertaken it, one or other.
22 JUDGE MOLOTO: How soon are you able to complete the task if
23 indeed you accept that you have a task to perform, Mr. Harmon?
24 MR. HARMON: Making that assumption, Your Honour, some of the
25 tasks which we have been requested to examine we have done and we have
1 informed the Defence. Others, Your Honour, they need to be discussed
2 further with the Defence. I don't know the volume that that set of
3 inquiries meets in terms of a total number, but we will certainly to the
4 extent that those are reasonable requests and we can meet them, we will
5 do so immediately.
6 JUDGE MOLOTO: Okay. Now, Mr. Guy-Smith has alluded to the
7 possibility if the Chamber is so inclined to agree of a conditional
8 acceptance of the exhibits on condition the tasks are performed later.
9 Would that be a possible way forward for you?
10 MR. HARMON: Your Honour, without having in front of me all of
11 the tasks that have been identified by the Defence team in this case,
12 it's difficult for me to see, first of all, what they are. Some were to
13 produce original documents, for example, so the Defence could inspect and
14 we have original documents here, for example, today so the Defence can
15 inspect those. Some related to translation issues. Those have been
16 tended to as we speak.
17 So is it -- is it your question, Your Honour, that if those are
18 conditionally admitted subject to our agreeing that what has been
19 requested by the Defence has been done, generally I don't have a problem
20 with that.
21 JUDGE MOLOTO: The only thing is, as I understand, Mr. Guy-Smith,
22 you are supposed to be in possession of the tasks that are outstanding.
23 You are supposed to be able to say whether you find those tasks
24 reasonable or not reasonable. Unless you are saying no you disagree with
25 him, he hasn't given you any of those, all of the tasks.
1 MR. HARMON: May have just a minute, Your Honour, and just check
2 with Ms. Javier.
3 [Prosecution counsel confer]
4 MR. HARMON: Your Honours, given that I have identified I think
5 the full range of limited number of tasks that have been requested, we
6 should finish those tasks by mid-week next week. When I say tasks, the
7 Defence has made certain requests of us. We are addressing those, and we
8 should finish addressing those completely by mid-week next week.
9 JUDGE MOLOTO: Now, if I can go back to my question. Would you
10 be inclined to a conditional admission of these exhibits pending your
11 finalization of those tasks?
12 MR. HARMON: Yes.
13 JUDGE MOLOTO: You would. And so would the Defence?
14 MR. GUY-SMITH: Well, the quick answer is yes, but once again,
15 there's a slight issue here which is why I don't want to say more than is
16 actually really where we are. And let me explain to you why. For
17 example, as an example, the Prosecution in one of our last meetings
18 indicated they were going to be redacting certain information because it
19 was not appropriately part of the record. We've said fine, we agree.
20 Once we get that particular exhibit with the appropriate information
21 redacted, there will no longer be any issues with regard to that
22 particular exhibit.
23 JUDGE MOLOTO: True, but that's one of the tasks that they must
24 go and perform.
25 MR. GUY-SMITH: That's right, and once that task has been
1 performed then we are in a position to quickly review it and say yes,
2 it's fine. My concern is this: My concern is once the task has been
3 performed if there's a mistake I don't want to be in a position where
4 they've said they've performed the task but we still have an objection by
5 virtue of the fact that they haven't taken care of the matter at hand.
6 These are all factual matters, I'm not speaking about any legal issues
8 JUDGE MOLOTO: Obviously -- I also don't want to play ping-pong
9 with you. But obviously if they haven't performed the task of course
10 that document cannot be admitted.
11 MR. GUY-SMITH: Fine. But then we are in not bad shape, but to
12 the extent there could be any interpretive issue with regards to some of
13 the factual matters, I don't want to be in a position where at a later
14 point in time you, and rightfully so, may say to me, listen,
15 Mr. Guy-Smith, you provisionally indicated you were willing to accept an
16 exhibit and now you are telling me that you're not by virtue of something
17 that has gone on. I don't want to be in that position.
18 JUDGE MOLOTO: But let me also put a caveat to my statement that
19 it can't be admitted. That is of course if the Chamber finds the
20 objection value.
21 MR. GUY-SMITH: Obviously so. But for example, for example, if
22 you have a document which is being admitted as conversation number 53,
23 and in fact is number 42, that is one of our objections which is please
24 put the right conversation in so that we deal with the right matter, that
25 is something which is not factually in dispute. I'm not talking about
1 anything other than very -- for a moment very direct factual issues. I'm
2 not dealing with any kind of legal objections we may have to some of the
3 matters which is an entirely different issue and one obviously that will
4 require the Chamber's thought and analysis.
5 JUDGE MOLOTO: The reason I'm trying to push this is because I'm
6 trying to get you to rest.
7 MR. HARMON: I understand that.
8 JUDGE MOLOTO: You understand that. I'm trying to get you to
9 rest as soon as possible because the rest of the issues that have to be
10 raised here are dependent on the Prosecution resting.
11 Now, I haven't had a very clear-cut answer from Mr. Guy-Smith
12 whether he would go along with the conditional admission pending
13 performance of tasks by the Prosecution so that we can find out whether
14 the Prosecution is in a position to rest and we can go on with the next
16 MR. GUY-SMITH: I will give you a clear-cut answer. I'm willing
17 to go along with conditional admission pending performance of the tasks
18 with regard to those documents that have been marked for identification
19 that fit into those categories. There are a balance of documents that
20 don't fit into those categories which are legal arguments to be made.
21 Now, we can do some of that today, if you wish. Or we can do that by
22 written submission, whatever you prefer.
23 JUDGE MOLOTO: How many exhibits are involved which require --
24 which are based on legal objections?
25 MR. GUY-SMITH: There are approximately I would say 125 exhibits
1 that fall into that category. That fall in the category of requiring
2 some form of legal response, where we have legal objections.
3 JUDGE MOLOTO: And are you able to argue your legal objection on
4 a globular -- in a globular fashion, or are you going to have to take
5 them one by one?
6 MR. GUY-SMITH: We can argue aspects of them in a global fashion
7 and others we will have to take one by one, Your Honour.
8 JUDGE MOLOTO: Then I am afraid you'll have to do it by written
10 MR. GUY-SMITH: Very well.
11 JUDGE MOLOTO: Thank you so much. You obviously can't rest
12 Prosecution because there are other legal objections other than factual
13 objections. That notwithstanding I think we should try and move on with
14 the another issues that would fall naturally on a closure, and the next
15 thing is the position of the Defence post closure by the Prosecution. We
16 were made to understand that Mr. Guy-Smith, on your return some
17 agreement -- some finality would be reached between the two of you and we
18 should be able to be advised.
19 MR. GUY-SMITH: That is correct, and I was looking to Mr. Lukic
20 because I think he will at this point be discussing that matter with you.
21 JUDGE MOLOTO: Mr. Lukic, please.
22 MR. LUKIC: [Interpretation] I'm trying to follow although I must
23 acknowledge that I haven't been able to do that quite well.
24 JUDGE MOLOTO: [Overlapping speakers] That's all I'm asking.
25 MR. LUKIC: [Interpretation] As we all know that the rule says
1 that we state our views when the Prosecution case is all over, then I can
2 conditionally state my position with your permission.
3 JUDGE MOLOTO: Yes, Mr. Lukic.
4 MR. LUKIC: [Interpretation] The Defence was ready today. I
5 thought we were going to try and resolve matters today but obviously
6 we'll have to go a different way. Mr. Harmon has just explained his
7 position and why he hasn't finished. Now we were ready to hear
8 Mr. Harmon say that he had completed his Prosecution case and then that
9 we would say that we would not be tabling a request under Rule 98 bis.
10 JUDGE MOLOTO: That's a position you are able to pronounce on
11 irrespective of whether or not they are resting now, unless if they are
12 planning to call further evidence. But if they are not going to call
13 further evidence you should be in a position to say whether or not you
14 are --
15 MR. LUKIC: [Interpretation] That's right. And that's why I said
16 conditionally speaking. Now, and I bear in mind the fact that we are
17 going to hear arguments here about the MFI documents, and I had this
18 image before me, and I thought we could make a framework for the
19 completion of the Prosecution case along with the additional findings of
20 Mr. Melvin. But given that kind of situation, I would be ready and now
21 I'm saying again that as the situation now stands, the Defence won't be
22 tendering a request under rule 98 bis, but once Mr. Harmon really does
23 complete the Prosecution case and producing his evidence, then that would
24 be our position unless we have a new witness which would give us reason
25 to table a request of that kind.
1 JUDGE MOLOTO: Thank you, Mr. Lukic.
2 I'm mindful as I ask you this that I think there are two
3 outstanding motions on admission from the bar?
4 MR. HARMON: That's correct, Your Honour.
5 JUDGE MOLOTO: I'm mindful of that, and the Trial Chamber will
6 render its decision. Now, you also raised, Mr. Lukic, General Melvin's
7 question. There was really one little question put to him, namely the
8 question whether he knew any authority which shows that a commander might
9 withhold a promotion as a possible punishment for the commission of a
10 crime. I just wanted him to say yes and this is the authority. I really
11 don't want a long story from him. But I don't know how he is going to
12 answer that question.
13 MR. LUKIC: [Interpretation] Yes, I had all this in mind when I
14 put forward our position.
15 JUDGE MOLOTO: Thank you very much.
16 MR. GUY-SMITH: If I might, Your Honour, just for purposes of
17 clarification so we all make sure we are on the same foot, with regard to
18 the fourth bar table submission, we have yet to respond to that. Our
19 response is due shortly and we will be filing shortly.
20 JUDGE MOLOTO: I omitted to say that. I should have said so.
21 It's just that to the extent that you haven't responded, that motion is
22 still pending too.
23 Okay. Just to confirm, Mr. Lukic, what you told us the last time
24 on the 4th of this month that we can start the Defence case on the 18th
25 of January.
1 MR. LUKIC: [Interpretation] Might I be given some time to confirm
2 what you've just asked me in actual fact?
3 JUDGE MOLOTO: I actually asked you on the 4th if I could hold
4 you to that day, and you said yes.
5 MR. LUKIC: [Interpretation] Yes, that's what I want to do, but --
6 yes, I want to say that the Defence is ready and I confirm the 18th of
7 January for the start of the Defence case, but I have to make a proviso
8 here, put it in the conditional, and that will depend on when we are
9 going to leave The Hague physically speaking and start preparations for
10 the Defence case. So I said on that occasion, when you said you would
11 hold me to my word, that the Defence would need 30 days from the time the
12 Prosecution case is completed. And we expected that to be this week.
13 For us to be able to attempt to draw up a list of witnesses, that's why I
14 said the 15th of December as a sort of dead-line, that was the date I
15 mentioned, but I'd like to put some arguments forward in that respect and
16 that then we could begin our case on the 18th, the 18th of January. But
17 if we remain here in The Hague to resolve outstanding methods, writing
18 motions and things like that which would take up our time, then I have to
19 say that on the 4th when you asked me, there was no question of us
20 staying on, except for this other gentleman that was supposed to be
21 heard. So that changes the situation.
22 JUDGE MOLOTO: And I'm not -- motions are driven by the parties
23 they are not driven by the Bench, so I guess if the Defence want to draft
24 a motion, they can draft it even from Belgrade or wherever they may be
25 where they may be talking to their witnesses. But I'm saying -- I'm not
1 quite sure what changes the picture now. What makes you think that you
2 are likely to stay here longer?
3 MR. LUKIC: [Interpretation] This is what I have to tell you, here
4 is what I have to say: At present it seems to me that we are now
5 brought -- the Defence has brought in the following position, that the
6 holidays that are coming on which are going to represent a problem both
7 for the Prosecution, as Mr. Harmon said last time, but not for the
8 Defence as well because I think we are going to have to work the whole
9 time, anyway this represents a sort of framework of our work and your
10 decisions with respect to future activities.
11 Now, this Defence team has two lawyers, three associates, and one
12 investigator. I've had all this in mind when I told you what I told you.
13 And now what we have to do is this: We have to conduct -- or rather, we
14 need 30 days for very important interviews, not in Belgrade but in
15 Serbia, outside Serbia, and outside Europe indeed. And I had that in
16 mind as well when I told you what I did tell you when I thought that we
17 could achieve all this during the period of time that I envisaged at the
18 time and that we discussed.
19 Now, this Defence team has no illusions that from the time it
20 leaves this is courtroom until the time it comes back in this courtroom
21 will not have a single day of holiday, we are aware of that. I'm quite
22 sure. Now, Mr. Harmon said last time what his problem was, the problem
23 he had, that is that his team after the 15th of December would not be
24 able to work on those activities because of the coming holidays, the
25 holiday season, and I can well understand that. On the other hand, we
1 can't -- we don't influence the holiday season of course, but because of
2 the holiday season, we can't be forced to do an impossible task. So I
3 wanted to propose to cut the argument short, there are quite a number of
4 arguments that I could put forward, I'm sure you are well aware of all
5 that I could say in that respect. Anyway, we have a list of witnesses,
6 we have the summaries for the witnesses, and the exhibits prepared.
7 Now, I wanted to propose the following to see what the reaction
8 would be of the Prosecution although I did discuss this in principle, I
9 touched upon the subject with Mr. Harmon a few days ago. What we can do
10 is this: If we were to start preparations for the Defence case
11 straightaway then by the 15th of December we could supply a list of
12 witnesses and the summaries, the witness summaries, and possibly on the
13 18th of January I was going to propose that we hold a pre-trial
14 conference, pre-Defence case conference with an introduction and then
15 move the presentation of evidence with witnesses for a week which would
16 allow the Prosecution to deal with the documents they are going to
17 receive on the 15th of December, and it will help us to breathe more
18 easily when we present our opening statement and when we go on to present
19 the Defence case.
20 So I think that this would be a rationale solution. What I am
21 afraid of now, let me tell you quite frankly, we planning to go to
22 Belgrade, all of us, next week. Now the fact that we are moving this up
23 will probably divide up our team. One of our lawyers, one of the lawyers
24 work in English, the other works in Serbian, and this requires double
25 time. So we have -- well, let me say a large number of documents without
1 mentioning any specific figure which have still not been sent for
2 translation, we are preparing to do that. So what I would like to
3 propose is this, and I'd like to ask the Trial Chamber for its
4 indulgence, and to bear in mind that if a dead-line is set for the
5 pre-trial brief being the 15th of December, to enable us to make a
6 supplement with documents by the pre-trial conference on the 9th of
8 And I know you don't like long arguments so I'll close soon, but
9 this Defence team find itself in a very difficult situation when the
10 Defence counsel were changed. It coincided with holidays. We asked for
11 a very brief period of time to allow Mr. Guy-Smith to come into the
12 courtroom and to come on to the team. So what I want to say is we had no
13 holidays then, no days off. And now once again the holiday season and
14 there's this terrible pressure placed on the Defence team, and I don't
15 think we'll be doing a good job unless we are given a proper dead-line to
16 be able to get through everything we need to get through. You thank.
17 JUDGE MOLOTO: I have a very simple mind, Mr. Lukic, that's why I
18 like short answers. And I'm not quite sure whether the answer to my
19 question is there in that whole speech. I tried to listen very
20 carefully, I couldn't pick it up, you know. You have been dealing now
21 with what I was going to deal with as the next item, disclosure by the
22 15th of December. You are not dealing with, are we starting the case on
23 the 18th of January, which was my question.
24 Yes, on the 18th of January I'm thinking of having a pre-Defence
25 conference with evidence starting on the 19th. Now, you want a week in
1 between. I still don't know why today you want a week in between because
2 I'm still not aware of what it is that is going to keep you in The Hague
3 longer than you anticipated in November, on the 4th of November. You
4 gave certain answers on the 4th of November anticipating that this week
5 you are leaving The Hague. I don't see -- I don't know what it is that
6 is keeping you in The Hague this week. Beyond this week.
7 MR. LUKIC: [Interpretation] If we do not have a hearing, I
8 thought that we were going to have another hearing, but if all is reduced
9 to written submission including our negotiations with the OTP, I am sure
10 that we will all be able to leave The Hague this week.
11 Second of all, why did I mention the second thing? If you
12 remember last time, Mr. Harmon said that he needed a list of witnesses
13 before, that the 15th of December is too late for him. Then your
14 proposal was for us to submit the names of some of the witnesses for the
15 Prosecution to be able to prepare themselves, and that it should not be
16 the official list. And the only thing that the Defence can do --
17 JUDGE MOLOTO: [Overlapping speakers] first few witnesses that
18 you are going to start with so that they can prepare.
19 MR. LUKIC: [Interpretation] What we can do, we can submit a week
20 in advance, the names of the first three or four witness, we can submit
21 those to the OTP. And then my next proposal in view of what Mr. Harmon
22 said about the time that he needs and in view of the holiday season, then
23 upon the return from the holiday, they will have another week to get into
24 gear and that would also give us time to prepare witnesses. Maybe we
25 could hear from Mr. Harmon what his position is, whether this means
1 anything at all to him or not, maybe I'm offering things that don't mean
2 a thing to him.
3 JUDGE MOLOTO: If you think back to our discussion on the 4th it
4 might not mean anything to him. But let's let him speak for himself, he
5 is here.
6 MR. HARMON: Your Honour, again I maintain the position I
7 articulated earlier. For us, the provision of a list of witnesses on the
8 15th is something that while it is five or six weeks ahead of the
9 commencement of trial, the reality of the holiday season around here is
10 that the language staff and members of the teams are on holidays,
11 generally speaking. This place in my many years here becomes somewhat of
12 a ghost town. That's the reality of this institution even when there are
13 ongoing trials. That's why I suggested that we would need the list of
14 witnesses beforehand, before the 15th. I maintain that position.
15 Now, Mr. Lukic has suggested that three or four witnesses who we
16 would get the names of three or four witnesses ahead of time. First of
17 all, I don't know the size of those witnesses or the importance of those
18 witnesses, so it's difficult for me to respond. They could be very minor
19 insignificant witnesses in which case I then would receive shortly a week
20 before the next witnesses would be called a set of witnesses who are
21 considerably more important, obviously more complex to prepare for, to do
22 the research on.
23 So I take little comfort from the suggestion that we get the
24 names of three or four witnesses at this point in time. I would suggest,
25 Your Honour, that, you know, what would be more assistance to the
1 Prosecution is if we receive the list of witnesses who the Defence
2 believes would occupy the first two months of the trial. That would give
3 us time to prepare and continue our preparations but a list of witnesses
4 a week ahead of time is not workable for us.
5 So I believe I have articulated precisely what our concerns are.
6 I reiterate those concerns, Your Honour.
7 JUDGE MOLOTO: Now you hear Mr. Harmon's position.
8 MR. LUKIC: [Interpretation] The problem is created as a result of
9 the upcoming holiday season. That's the biggest problem. The OTP on the
10 15th of December and for a month after that is not in a position to do
11 the job which puts me in a position that I do something that I can't do.
12 This team cannot provide a list of witnesses between -- before the 15th
13 of December, and I don't know why I should suffer because of that.
14 Because of the fact that the OTP has to rest between the 15th of December
15 and 15th of January, we are asked to do more than we can.
16 If the OTP had completed their case three weeks ago then we would
17 not be facing this problem. We would still be in the stage where the OTP
18 would be working, we would be working, we would be able to provide them
19 with a complete list of witnesses before the 15th of December. If they
20 had completed their case a month ago, we would be able to provide them
21 with the full list of witnesses, and they would have what they need
22 before the 15th of December. And that's the crux of the problem, That
23 Defence has been put in a difficult position because of the beginning of
24 holidays. The holiday season is ahead of us.
25 That's my suggestion was that we should put everything forward by
1 seven days after the holiday season to give the OTP the time to prepare
2 themselves and to work.
3 JUDGE MOLOTO: I hear that last suggestion. It can be looked at.
4 However, on the 4th when we spoke, the suggestion from Chamber had been,
5 are you not able to give part of the list, and I didn't then envisage
6 three our four witnesses, I thought maybe you could give ten or 15,
7 something like that. You estimated the length of the Defence case to be
8 something like five months, so if Mr. Harmon asks for witnesses that
9 would occupy two months, that seems to be -- I don't know, maybe you
10 could give them one month, witnesses that could occupy a month, but
11 not -- I wasn't anticipating two or three witnesses. Just to start us
12 going with the case.
13 MR. LUKIC: [Interpretation] Mr. Guy-Smith will follow up on my
14 words, and I will first explain, and I can say that the Defence case is
15 not going to have minor witnesses or less important witnesses. When I
16 say minor witness, I have in mind the crime-base witnesses that we saw at
17 the beginning of the trial. A number of witnesses that we have been
18 working with and preparing them for testimony are such witnesses that
19 will -- each and every one of them will require at least one day for the
20 examination-in-chief. And that's why when I said three or four witnesses
21 that we can submit the names of, maybe we can submit ten, but I can't be
22 sure at this moment of their sequence because I -- I can produce a list
23 of some ten witnesses that would come initially, but I cannot be sure of
24 their sequence before we have had a word with all of them. But that I
25 will be able to do only when I'm in a position to submit the full, the
1 complete list of witnesses.
2 My colleague Mr. Gregor Guy-Smith has things to add.
3 MR. GUY-SMITH: [Overlapping speakers] read the transcript and
4 the conversation between the Court and counsel during that transcript.
5 I'm also quite concerned about our ability to adequately and properly
6 prepare the Defence of this case in the period of time that we have, and
7 I think that we are working in absolute good faith.
8 I also understand Mr. Harmon's concern that while some of us
9 labour, some of us rest, and he will not be able to labour, and that's a
10 legitimate concern on his behalf because he too needs to be prepared.
11 And I also see something else here which I think is of some importance
12 which is the Chamber's inclination and desire to have this case start on
13 the 18th or the 19th of January.
14 Whether these dates are -- whether any of these dates - at this
15 point I'm speaking about the 18th or 19th of January - are firm dates is
16 something that I know not, but everything that we are discussing is
17 predicated upon the firmness of that date. If that date is not
18 considered by the Chamber to be a date which is set in stone, then
19 obviously some of this changes, and it gives people the ability to work
20 perhaps in a more measured manner. I'm raising the issue not for
21 purposes of changing anything whatsoever, but only because there seems to
22 be an inherent tension in the calendar and a recognition on the part of
23 all parties that we are at that unfortunate time of the year when some
24 things go fallow. I offer that as a thought, as a way to accommodate all
25 of the concerns that have been raised here. All of which I think are
1 legitimate concerns. I think it would be most probably not only
2 imprudent but irresponsible of the Defence to throw witnesses names at
3 the Prosecution and at a later time juggle it up in a another fashion.
4 We are trying to put together as focused a Defence as we can and as
5 pertinent a Defence as we can dealing with the important issues that we
6 believe exist at this time. That requires -- that requires at a minimum
7 the time-period that Mr. Lukic has suggested. And I think that we are
8 being quite responsible with regard to that time, but I offer as an idea
9 the notion that perhaps another solution is to consider when the Chamber
10 wishes the trial to commence, appreciating of course the Chamber wishes
11 the trial to commence once the Prosecution has rested as quickly as
12 possible within the parameters obviously of those considerations that are
13 for the Defence, the ability to adequately and properly defend their
15 JUDGE MOLOTO: Thank you, Mr. Guy-Smith. I don't think that the
16 date of the 18th is cast in stone. But it was as you rightly say, the
17 sooner we can start the better.
18 [Trial Chamber confers]
19 JUDGE MOLOTO: [Microphone not activated] We are trying to look
20 at a date that might perhaps go somewhere to meet the parties. A week
21 later is the 25th. Would that be fine?
22 MR. LUKIC: [Interpretation] Yes, Your Honour.
23 JUDGE MOLOTO: Mr. Harmon?
24 MR. HARMON: Your Honour, it depends on when the production of
25 the documents and the --
1 JUDGE MOLOTO: 15th of December.
2 MR. HARMON: 15th of December for the complete trial brief and
3 the complete list of exhibits and the complete list of witnesses intended
4 to be called by the Defence, is that what I understand without any
5 provision of identities of witnesses now who may be -- so we could start
6 working properly? If there is, for example, the production of the names
7 and the identities and the materials relating to the first ten witnesses,
8 and then the complete production on the 15th of December, I don't have a
9 problem with that.
10 JUDGE MOLOTO: Mr. Lukic, are you able to respond to that?
11 MR. LUKIC: [Interpretation] No, Your Honour. I really -- there's
12 no chance for me to submit a list of witnesses, all the documents -- let
13 me just read all that. I can't do that before the 15th of December. The
14 rules are clear, 15 days before we bring in the witness we are supposed
15 to give them the schedule, so that means that if we give them the
16 pre-trial brief, the list of witnesses, and all the documents by the 15th
17 of December, that would mean that we would be two weeks in advance of the
18 arrival of our first witnesses, and this is not what the OTP did for us.
19 The OTP submitted the schedule of witnesses 15 days before the
20 arrival of the witnesses in the courtroom. If the OTP wants to receive
21 something from us before the 15th of December, the only thing that we can
22 submit are the names of some witnesses. There's no way I can provide any
23 documents or the pre-trial brief. My proposal was for the pre-trial
24 brief to be submitted before the 15th of December according to the Rule
25 65G, and I also agreed that the 25th of January is the good time to begin
1 our case. 15 days before the beginning of our Defence case the
2 Prosecutor will be provided with the list of the witnesses that will be
3 called during the first two weeks of the Defence case.
4 MR. GUY-SMITH: If I might say something just because I'm
5 forecasting into the future, and I'm a bit concerned of what I can see
6 happening in the future, so I want to put the marker down now. We are
7 trying to do everything we can to give the Prosecution as complete a file
8 as we can in a short period of time as we can. Realistically taking into
9 consideration what we can physically and mentally do.
10 If the Prosecution seeks for there to be a greater than that and
11 in the future we come to this Chamber with requests for either the
12 submission of additional documents or additional witnesses by virtue of
13 the fact that we clearly have not been able to prepare adequately and
14 properly, then I trust that we will be receiving no objection whatsoever
15 from the Prosecution as to those additions. Because if we are going to
16 be receiving objections from the Prosecution as to those additions, and
17 if there's going to be spirited argument with regard to that issue, what
18 is happening right now is unfortunately, and I don't mean any disrespect
19 whatsoever to Mr. Harmon, because I'm sure he has his own concerns, but
20 unfortunately what is happening is we are going to get set up. The
21 Defence is going to get set up and we are going to be involved in this
22 situation that we do not wish to be involved in either with our
23 colleagues on the other side of the room or with the Chamber. And we are
24 very concerned about that, which is why we are pressing for the position
25 that we've pressed for.
1 JUDGE MOLOTO: Okay. Look, when the Chamber did say and it said
2 so on the 4th of November that if you gave part of your 65 ter list, you
3 would be allowed to supplement it later obviously because it was going to
4 be known in advance that you are not giving a comprehensive list.
5 However, I think we got to bring this discussion to a close, and I think
6 the only way we can bring this to a close is to say to the Defence, give
7 whatever list you can give, however comprehensive or not comprehensive
8 that you can at your earliest to the Prosecution. The Chamber has tried
9 to meet the parties by saying okay we can start on the 25th. The
10 Prosecution must try and meet the Chamber and everybody else by arranging
11 the holidays during the season such that there are people who can be
12 working on the lists that may be filed by the submitted by the Defence to
13 be ready to cross-examine when we come back.
14 We all work during holidays and some can stay here and work and
15 take their holiday when others come back. I think that's the only way.
16 We cannot start much later than the recess period simply because people
17 had gone on holiday during recess. It just means people are taking
18 double holiday. I think the Prosecution will have to organise itself in
19 that manner.
20 We shall then start with opening statements on the 25th of
21 January. On the 26th we start leading evidence. Okay. Thank you so
23 MR. HARMON: Your Honour, may I just intervene for one moment?
24 JUDGE MOLOTO: Yes, Mr. Harmon.
25 MR. HARMON: The current state of what I'm hearing Your Honour
1 say is for the Prosecution somewhat vague in that there are no dead-lines
2 or dates in terms of when the Defence must produce the materials to the
3 Prosecution. As I read what you said, you said "give the Prosecution
4 whatever list you can" but I don't have a date for that. And that would
5 obviously affect our ability to do our work before the holidays commence,
6 and during the holidays as well. So if in fact the list is given a few
7 days before the holiday commences, that puts us in one position. If it's
8 given to us before that time, that puts us in a different position.
9 JUDGE MOLOTO: I understood Mr. Lukic to be insisting on
10 complying with the rules, and my understanding of him was that you will
11 get a comprehensive list 15 days before the first witness comes into
12 court. If anything can come earlier than that, he sees that as a bonus.
13 Now you can calculate 15 days before the 25th of January, that's when you
14 should be able to get -- that's when you should expect a comprehensive
15 witness and summarise list from the Defence.
16 I guess I'm summarizing you correctly, Mr. Lukic?
17 MR. LUKIC: [Interpretation] Correct, Your Honour.
18 JUDGE MOLOTO: Anything they can give earlier than that is a
20 MR. HARMON: All right. So, Your Honour, when you say a
21 comprehensive list, I take it you mean a comprehensive compliance with 65
22 ter G which are -- consists of a variety of elements. Is my
23 understanding correct, Your Honour?
24 JUDGE MOLOTO: If we are talking of compliance with the rules, I
25 think that should be what I mean. G -- Mr. Lukic, I don't have to read
1 65 ter G to you, you know what it says. I've got it right in front of
2 me, if you want it.
3 MR. LUKIC: [Interpretation] That's correct.
4 JUDGE MOLOTO: [Overlapping speakers] You will be complying with
5 that 15 days before the trial begins.
6 MR. LUKIC: [Interpretation] Correct.
7 JUDGE MOLOTO: [Overlapping speakers] And anything you give
8 earlier, you will give if you can.
9 MR. LUKIC: [Interpretation] Correct, and before that we will try
10 and accomplish something before that and provide the OTP with things in
11 batches to allow them to start their preparations.
12 JUDGE MOLOTO: Okay. Is that clear now, Mr. Harmon?
13 MR. HARMON: Your Honour, it is clear, but I think it compresses
14 two rules. The rule that Mr. Lukic referred to, the 15 days before the
15 witnesses are called is what we normally do and what we did in terms of
16 complying with identifying the witnesses who were going to be called in
17 the next two weeks. A 65 ter G compliance is a different issue. And we
18 complied, for example, with our 65 ter obligations on the 1st of May
19 2007. The trial started in this case on the 2nd of October 2008. So the
20 Defence had a considerable period of time, more than 15 days, in which to
21 consider our witness identifications, summaries, list of exhibits, 92
22 ter, which element of the indictment the witnesses' testimony referred
24 So there are two separate sets of considerations here. When we
25 are discussing the 15 days ahead of the witness being called, that is a
1 rule. That's been a guide-line that we've had between the parties, but
2 it's separate and apart from our 65 ter obligations which we complied
3 with well over a year in advance. And so there is a huge disparity
4 between what the Defence proposes and what the Prosecution executed
5 during the course of the pre-trial of this case, and so, again, 15 days
6 before the commencement of the trial for this compliance is
7 significantly -- it puts us at a significant disadvantage. We are happy
8 to receive the names and identities of the witnesses who will be called
9 15 days ahead of time. Those are my submissions, Your Honour.
10 JUDGE MOLOTO: Thank you, Mr. Harmon.
11 You see, you are saying we are compressing two rules into one.
12 You are the one who raised 65 ter G that does Mr. Lukic mean that he is
13 going to comply with 65 ter G by the 15th. But now I'm trying to look at
14 65 ter G, and I don't seem to see a time-limit.
15 MR. HARMON: There is no time-limit. The time-limit, Your
16 Honour, is set by an order of the Trial Chamber.
17 JUDGE MOLOTO: That's right. And now you are challenging that
19 MR. HARMON: No, I was trying to clarify something that Mr. Lukic
20 said suggesting that there was a 15-day rule that applied and it does not
21 apply to 65 ter G.
22 The Court can consider in the interest of fairness and the
23 ability of both parties to prepare a dead-line that it deems appropriate.
24 We obviously he will not challenge that dead-line, Your Honour. But we
25 have put forth a series of considerations that we have and concerns that
1 we have relating to our ability to prepare, bearing in mind, of course,
2 as I said, that the time-period suggested by Mr. Lukic is considerably
3 shorter than the period that the Defence had in receiving the materials
4 under 65 ter.
5 JUDGE MOLOTO: Indeed. You obviously couldn't expect at this
6 stage to get these materials a year in advance like they did. What would
7 be a reasonable time for you?
8 MR. HARMON: May I have just a minute, Your Honour?
9 JUDGE MOLOTO: Yes, please.
10 [Prosecution counsel confer]
11 JUDGE MOLOTO: Mr. Lukic, just so everybody is clear. You do
12 undertake to give a list of some few witnesses, ten or so, as soon as
13 possible, perhaps earlier than the 15th of December?
14 MR. LUKIC: [Interpretation] Mr. Harmon has asked to receive a
15 list of witnesses, he asked for those ten witnesses to get a list, the
16 order, and the documents that will be attached. That's the sort of
17 package that we provided the 15 days before the witness comes into court.
18 So Mr. Harmon is right that that is not in keeping with Rule 65 ter G.
19 [Defence counsel confer]
20 THE INTERPRETER: Interpreter's note: Could please all
21 unnecessary microphones be switched off. Thank you.
22 MR. LUKIC: [Interpretation] The order of the first -- or rather,
23 the unofficial list of ten witnesses we can provide before December 15th.
24 That's right. Yes.
25 JUDGE MOLOTO: How soon?
1 MR. LUKIC: [Interpretation] Just let me consult with my
2 colleagues because this is rather a bigger problem.
3 [Defence counsel confer]
4 MR. LUKIC: [Interpretation] Your Honours, I never liked guessing
5 or speculating, and I don't want to do any guess-work now either, but we
6 can provide it by the 5th of December. By the 5th of December we will be
7 able to provide a list with ten witnesses and that will probably be the
8 order in which we'll have those ten first witnesses.
9 Now, in the ensuing period, we'll be able to be more precise.
10 That is to say, before the Christmas break we'll be able to give the
11 Prosecution the order of witnesses we are going to start off with on the
12 25th, and I'm sure this will mean a great deal to Mr. Harmon.
13 JUDGE MOLOTO: Now, [Microphone not activated] so that we
14 understand -- on the 5th you are giving a list of ten. Is that just A,
15 B, C, D, of the witnesses you're going to call, no statements, no
16 summaries, no nothing, or is that with summaries? It's the list. I can
17 hear your manager say it's the list.
18 MR. LUKIC: [Interpretation] I can tell you that the list will be
19 sufficient to Mr. Harmon to begin with because there will be individuals
20 there whom he knows full well.
21 JUDGE MOLOTO: Then on the 15th what do you give?
22 MR. LUKIC: [Interpretation] On the 15th of December what we can
23 give in conformity with Rule 65G, a list of witnesses and the summaries.
24 I do have some problems with the documents which under 65G should be
25 submitted but I'm afraid that I won't be able to present the entire list
1 by the 15th of December, so I'll need additional time from you for that,
3 JUDGE MOLOTO: Does that clear you?
4 MR. HARMON: May I just have a moment to confer, Your Honour?
5 I'm sorry that we keep going and changing the elements so I need to
6 confer for just a moment.
7 JUDGE MOLOTO: B all means.
8 MR. HARMON: Thank you.
9 [Prosecution counsel confer]
10 JUDGE MOLOTO: Yes, Mr. Harmon.
11 MR. HARMON: I'm just trying to resolve, Your Honour, the text of
12 this and my understanding of it because I want to be perfectly clear so
13 there's no misunderstandings. On the 15th of December it is my
14 understanding that the Defence will provide -- will conform with the
15 terms of Rule 65G in its entirety. And therefore, prior to that we
16 will -- on the 5th of December, there will be a list of ten witnesses in
17 the order. On the 15th of December, we'll have the list of witnesses,
18 their factual summaries, and the remainder of the 65 ter G compliance.
19 If that's what we are talking about, then we have no problem.
20 JUDGE MOLOTO: Except that Mr. Lukic adds "but I'm afraid I won't
21 be able to submit the entire list by the 15th of December so I'll need
22 additional time from you for that, please." I'm not claiming to
23 understand that. I don't know how long -- how much time he is going to
24 ask for, what is it that is not going to be complied with by then.
25 MR. HARMON: That would be certainly something that would be
1 worth clarifying at this early stage, Your Honour.
2 JUDGE MOLOTO: Are you able to clarify that, Mr. Lukic? I don't
3 know. I'm actually beginning to wonder whether wouldn't it be fruitful
4 if the two parties can sit down and talk and then come here and say
5 judge, we'll give you -- we'll start -- we'll get this on that day, we'll
6 get that on that day, we'll get that on that day? I have a feeling that,
7 and I'm not blaming anybody for it, parties usually play their cards to
8 their chest particularly in the presence of the Chamber. But you are
9 more open with each other when you are on the terrace having coffee and
11 MR. HARMON: We can certainly explore it, Your Honour. But
12 ultimately I think the decision rests with the Trial Chamber.
13 JUDGE MOLOTO: Of course.
14 MR. HARMON: So I'm happy to take a recess, we can make sure we
15 understand each other, we may agree to disagree, or we may not accept
16 what the proposal is, but obviously it's up to the Trial Chamber to make
17 the ultimate decision and we accept so.
18 JUDGE MOLOTO: Yes, for me, or for the Chamber rather, we would
19 like to start on the 25th of January and move on as smoothly as
20 circumstances permit.
21 MR. HARMON: We understand the Court's desires and when they want
22 to start the case. Obviously the Court understands our concerns of when
23 we want to have compliance with Rule 65G in its totality. And so that is
24 something we can discuss with -- if we take a break, I'm happy to do so.
25 MR. GUY-SMITH: Your Honour, if I might, it seems to me there are
1 a couple of matters that are presently open for discussion as between the
2 parties. There's some issues about some MFI documents which we are
3 clearly going to be trying to resolve, and I think for the most part we
4 will get resolved. Here is another issue. So it seems to me that we can
5 have a fruitful discussion dealing with both of these matters. I have a
6 sneaking suspicious that a hurried discussion right now will not bring to
7 fruit the kinds of results that the Chamber will want. There are a
8 couple of matters that need to be dealt with, I think we are in a
9 position to deal with them and deal with them in such a way that the
10 Defence is not disadvantaged by the schedule that is presently sought by
11 the Prosecution. And I would remind the Chamber, and I would remind the
12 Prosecution quite gently we are but two, I see four attorneys sitting
13 across from us. I came into the case quite late and we have been working
14 diligently, we will continue to work diligently, and perhaps if we have a
15 chance to have a meaningful conversation with each other we can come back
16 to the Chamber in a way that allows for that. I don't think it's a short
17 recess, Your Honour, I think there's some things that need to be thrashed
19 JUDGE MOLOTO: I understand that, but my other problem, the flip
20 side of that solution is that I don't want you gentlemen and lady staying
21 here beyond this week and then not being able to come back in time with
22 your obligations because you stayed longer. This is the argument that I
23 was given a little earlier by Mr. Lukic. I would like to chase you out
24 of The Hague as soon as possible.
25 MR. GUY-SMITH: Okay. Well, and no offence to The Hague, we'd
1 like to get out of here as quickly as possible. So perhaps what would be
2 fruitful is if we -- I think we are getting close to the time to stop in
3 any event, and we can sit and chat with each other, and if we could get
4 back to you in 45 minutes to an hour.
5 JUDGE MOLOTO: That's fine.
6 MR. GUY-SMITH: We'll inform your -- Srdjan, the legal officer,
7 and take it from there.
8 JUDGE MOLOTO: Thank you so much. We'll take a break.
9 --- Recess taken at 3.30 p.m.
10 --- On resuming at 4.16 p.m.
11 JUDGE MOLOTO: Who goes first? Is it you, Mr. Harmon?
12 MR. HARMON: I'm happy to go, Your Honour, first. Let me just
13 say that we did meet over the recess, and we are in agreement with what
14 was stated in the course of the hearing. And that is as follows: On the
15 5th of December, it is agreed that the Prosecution will receive the names
16 of ten witnesses. On the 15th of December, there will be full compliance
17 with 65 ter G except as it relates to the exhibits. We will receive on
18 the 15th of December a partial list of exhibits. On the 10th of January,
19 we will receive a complete list of exhibits.
20 JUDGE MOLOTO: Okay. And we can make that an order of court.
21 MR. HARMON: We are satisfied with that. I think I've accurately
22 related what our agreement is, and if the Defence confirms that then the
23 Court can make an order of the court.
24 MR. LUKIC: [Interpretation] Yes, I confirm, Your Honours, that
25 that is the agreement we reached and whenever we reach an agreement with
1 the Prosecution, I always have my doubts that something is not in order.
2 But this time we really have reached an agreement as Mr. Harmon has just
3 put it, and it will be our joint proposal by both parties.
4 JUDGE MOLOTO: Okay. Then just to resolve that point, the
5 Chamber then gives an oral order to the effect that on the 5th of
6 December, the Defence will deliver to the Prosecution a list of the names
7 of at least ten witnesses. Secondly, that on the 15th of December, the
8 Defence will comply with 65 ter G -- the requirements of 65 ter G except
9 as it relates to exhibits. And the 10th of January, the Defence will
10 deliver to the Prosecution a complete list of exhibits. So ordered.
11 MR. HARMON: In your order, Your Honour, may I just ask that you
12 include one element that wasn't ordered, and that is on the 15th of
13 December, the Defence will provide a partial list of exhibits to the
15 JUDGE MOLOTO: Well, I thought when I said it will comply with 65
16 ter G except as it relates to exhibits, that means it is a partial list.
17 Okay. Will give a partial list of exhibits by the 15th, and --
18 MR. LUKIC: [Interpretation] That's right.
19 JUDGE MOLOTO: I guess these exhibits are exhibits that relate to
20 the first few witnesses.
21 MR. LUKIC: [Interpretation] That's the problem. The problem is
22 that the list of documents which we are going to provide to the first
23 witnesses which we have been instructed to do by you 48 hours before the
24 witness comes into court. So we are going to try and provide as many of
25 those as possible. However, the list of witnesses or rather the
1 documents attending the witnesses are to be sent to the Prosecutor 48
2 hours prior to the witness coming in to court which is what the
3 Prosecution did for us.
4 So the only problem is that we get the documents back from
5 translation on time, but we'll do our best to provide a certain number of
6 documents to the Prosecution.
7 JUDGE MOLOTO: [Overlapping speakers] ... whatever a simple mind.
8 Now you are clouding the whole issue. My question is very simple. The
9 partial list of exhibits that you are going to give on the 15th of
10 December, my understanding is would mean nothing if they relate to
11 witnesses that are going to be called in June next year. I would expect
12 that that list of exhibits would be a list of exhibits that relates to
13 the witnesses that are going to be called at the beginning of the case.
14 And that's all I was trying to check with you.
15 MR. LUKIC: [Interpretation] It is our aim -- well, I have it to
16 take up a bit of time, I know you don't like it, but when the witness
17 comes in on the 25th of January, my aim is to introduce as many documents
18 as I can through that witness, so I'm going to do my best to provide the
19 Prosecution with as many of those documents as I can. I'm just afraid of
20 whether we'll be able to have the complete picture by the 25th of
21 January. But we'll do our best to provide the Prosecution with these
22 documents by the 15th of December, the ones that we tend to introduce
23 through the witnesses we shall be calling.
24 JUDGE MOLOTO: If I must interpret Mr. Harmon's gesture, you are
25 saying that's fine?
1 MR. HARMON: That's fine, Your Honour. Yeah, I understand him to
2 say he is going to give us what documents that relate to the first ten
3 witnesses, and the remaining documents will be given to us two days ahead
4 of time subject to a limitation on possibly translations. That's what I
5 understand him to be saying. That is acceptable to us.
6 JUDGE MOLOTO: Thank you. And I thought I saw my ALO saying that
7 I must insist on the start of the case, I think the start of the case is
8 the 25th, that's water under the bridge, we have agreed. Okay. On which
9 day it will be opening statements, evidence the following day.
10 [Trial Chamber and legal officer
12 JUDGE MOLOTO: Yes, naturally, pretrial -- pre-Defence conference
13 will be on the 25th. Right.
14 How many -- how long do we think that the Defence case is going
15 to be? We've got an idea on the 4th of November, Mr. Guy-Smith. I just
16 wanted to repeat it in your presence so that you confirm.
17 MR. LUKIC: [Interpretation] Let me repeat the same thing, what I
18 said last time, along with the proviso that I made. So globally speaking
19 our Defence case should last between four and five months.
20 JUDGE MOLOTO: Thank you.
21 MR. LUKIC: [Interpretation] I think that most probably when we
22 provide the official witness list with the time we wish for examination,
23 that is to say on the 15th of December, you'll have a clearer picture of
24 what we want. And, of course, the final decision will be up to you.
25 JUDGE MOLOTO: Okay. Let me just check something before ...
1 Okay. That concludes the issues that we wanted to raise as the
2 Chamber, unless, Judge, you have anything you want to raise? Judge?
3 [Trial Chamber and legal officer
5 MR. LUKIC: Your Honour, just one second.
6 JUDGE MOLOTO: Okay. You first.
7 [Defence counsel confer]
8 MR. LUKIC: [Interpretation] I would like to raise one issue just
9 to hear the Trial Chamber's position because it will be useful to us in
10 preparing our motion. As the Defence understands, there are certain 65
11 ter documents of the Prosecution which the Defence might like to use
12 during its presentation of evidence. Now, since those documents are
13 Prosecution documents and they are aware of them, is it necessary for us
14 to put those documents on the list or simply during the Defence case to
15 ask that the witness be shown a document from the Prosecution 65 ter
17 I've discussed this with Mr. Guy-Smith and I consider that since
18 there are documents available and open to both parties, then there is no
19 reason for us to put those documents down on our list, but if we need to
20 use them, we will just inform the Prosecution before the witness comes in
21 that we are going to use one of their 65 ter documents which is not an
22 exhibit, for instance.
23 JUDGE MOLOTO: Mr. Harmon.
24 MR. HARMON: Our position is that if the Defence intends to use
25 the exhibit, then they should put it on the list, and I refer to 65 ter G
1 subpart (ii) which specifies that if they intend to offer the exhibit,
2 then it needs to be identified.
3 JUDGE MOLOTO: [Microphone not activated] I want to say in
4 addition to what you said at least if you have written the title of the
5 document and if they have it I'm sure they can just pull it out and read
6 it. I don't know how you operate, but at least for them to know in
7 advance that that document is going to be used.
8 MR. LUKIC: [Interpretation] Well, Your Honours, that's what you
9 had during the trial. When a document crops up which is not on the list
10 but has been disclosed to the Defence, for example, so we consider that
11 since these documents are on the 65 ter list of the Prosecution, they are
12 Prosecution documents and therefore have been disclosed. So we consider
13 that the very fact that they have awareness of their documents they know
14 what they are about, so within the 45 hour time-limit we will of course
15 be telling the Prosecution that we are going to bring up their document
16 and present it to the witness without putting down all this mass of
17 documents that we might be using, we consider it sufficient that it
18 suffices that the Prosecution knows that it's one of their documents and
19 then we send them 48-hour notice that we shall be using that document
20 during the trial.
21 JUDGE MOLOTO: Is what you are proposing in compliance with 65
22 ter G(ii)?
23 MR. LUKIC: [Interpretation] Yes, that's what I think too, the
24 very fact that the document is on the Prosecution 65 ter list, by that
25 very fact, I don't have the obligation to place it on my list. Because
1 the document is well known to the Prosecution, it was on the Prosecution
2 list in the first place, and I think that suffices. That is enough in
3 itself. So when I ask the witness -- or rather, when 48 hours before I
4 examine the witness I tell the Prosecutor that I'm going to use such and
5 such a document from their list, I think that's enough. That's all right
7 JUDGE MOLOTO: Well --
8 MR. LUKIC: [Interpretation] What I can do technically is just to
9 do a formal bit of business and say that on my 65 ter list I'm going to
10 put down all the Prosecution 65 ter documents, all their documents on my
11 list, but I think that it's just too much work and that we are being too
12 formal in something that could be very simple.
13 JUDGE MOLOTO: I understand what you are saying, Mr. Lukic, but I
14 don't think that what you are saying is what Mr. Harmon is saying. And I
15 think what Mr. Harmon is saying is what appears on the rule book and the
16 last sentence of paragraph 2 of 65 ter G says:
17 "The Defence shall serve on the Prosecutor copies of the exhibits
18 so listed."
19 Now, if you don't want to give them copies of the exhibits so
20 listed, I think that is what you must agree with your colleague on the
21 opposite side at that time because you are now introducing an amendment
22 to an undertaking you have made. You have made an undertaking to comply
23 with Rule 65 ter G. Now you want to amend that undertaking, and I think
24 when you do do so, it's up to you to sort it out with your colleagues on
25 the opposite side.
1 MR. GUY-SMITH: I understand the Chamber's position. I
2 understand what Mr. Harmon said. And if that's what the Prosecution
3 wants, then so be it. It's a terrible waste of time, it's a terrible
4 waste of trees, it's a terrible waste of CD disks. I can assure you of
5 all of those things but if that's what he chooses to have, he knows what
6 the 65 ter list is. There are a number of documents on the 65 ter list
7 that the Prosecution chose not to introduce. We will be using those
8 documents. We will be informing the Prosecution of those documents in
9 the appropriate time-period before the witness testifies, but if he
10 wishes to have a complete list along that fashion, so be it. I think
11 it's -- to be perfectly honest with you, I think it's quite foolish, and
12 I think it's a terrible terrible waste of time and resources, but that's,
13 you know, certainly not my call.
14 JUDGE MOLOTO: Nor is it the Chamber's call. It's the call of
15 the parties, you know. Okay, that's the rule and it says that. I had
16 said that brings us to the end of our Chamber, I realise no, I'm wrong.
17 The Chamber would like to put you to terms on your objection to the MFI
18 exhibits so that we can bring that matter to finality. Okay. How soon
19 can your motion come through?
20 MR. GUY-SMITH: We will be filing a motion with the Chamber no
21 later than next Wednesday.
22 JUDGE MOLOTO: Thank you. Okay, and then the normal time-limits
23 will run for response and what have you. Okay. Thank you so much.
24 Anything from the Prosecution on housekeeping?
25 MR. HARMON: No, Your Honour, thank you.
1 JUDGE MOLOTO: From the Defence?
2 MR. LUKIC: [Interpretation] No, thank you.
3 JUDGE MOLOTO: I think then that brings us to the end of our
4 session. We can safely postpone to the 25th of January, just to make
5 sure that you are out of The Hague as soon as possible, can we?
6 MR. LUKIC: [Interpretation] The only problem where the Defence is
7 concerned is this, and I'll conclude by saying that ...
8 [Trial Chamber and Registrar confer]
9 JUDGE MOLOTO: Sorry, Mr. Lukic.
10 MR. LUKIC: [Interpretation] This should have been just a brief
11 comment following your words, we want to leave The Hague as soon as
12 possible because we have something that we should inform the Trial
13 Chamber about. Yesterday in Serbia the swine flu epidemic was
14 proclaimed, so that's where we are going.
15 JUDGE MOLOTO: [Microphone not activated] okay. Then the court
16 stands adjourned to the 25th of January. We can't give the time or the
17 court, we have got no schedule for January.
18 MR. GUY-SMITH: If I might, the Defence wishes the Chamber a good
19 holiday season.
20 JUDGE MOLOTO: You just took it out of the Chamber's mouth. The
21 Chamber wanted to say you have a very good holiday, come back well
22 rested, work hard during the holidays, be ready to start on the 25th at
23 full steam. Land in The Hague running. Okay, and to you too. Court
25 --- Whereupon the hearing adjourned at 4.36 p.m.
1 to be reconvened on Monday, the 25th day of
2 January, 2010.