1 Friday, 14 July 2006
2 [Pre-Trial Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.05 a.m.
6 JUDGE AGIUS: Good morning. Madam Registrar, this is a
7 continuation first of the Pre-Trial Conference. It should take us a few
8 minutes and then we'll proceed with the start of the trial. So could you
9 please call the case.
10 THE REGISTRAR: Good morning, Your Honours. This is case number
11 IT-05-88-PT, the Prosecutor versus Vujadin Popovic et al.
12 JUDGE AGIUS: One moment.
13 Mr. Popovic, good morning to you. Can you follow the proceedings
14 in a language that you can understand?
15 THE ACCUSED POPOVIC: [Interpretation] I can.
16 JUDGE AGIUS: Thank you, you may sit down.
17 Mr. Beara, good morning to you. Can you follow the proceedings in
18 your own language?
19 THE ACCUSED BEARA: Yes, I can. Thank you.
20 JUDGE AGIUS: Which is your language?
21 THE ACCUSED BEARA: I'm sorry.
22 JUDGE AGIUS: Mr. Nikolic, can you follow the proceedings in your
23 own language?
24 THE ACCUSED NIKOLIC: [Interpretation] I can, Mr. President.
25 JUDGE AGIUS: I thank you, Mr. Nikolic, and good morning to you
2 Mr. Borovcanin, can you follow the proceedings? Same question.
3 THE ACCUSED BOROVCANIN: [Interpretation] Yes, thank you.
4 JUDGE AGIUS: Mr. Miletic, the same question.
5 THE ACCUSED MILETIC: [Interpretation] Yes, thank you,
6 Mr. President.
7 JUDGE AGIUS: I thank you, and good morning to you.
8 Mr. Gvero.
9 THE ACCUSED GVERO: [Interpretation] I can, Mr. President.
10 JUDGE AGIUS: I thank you.
11 And Mr. Pandurevic.
12 THE ACCUSED PANDUREVIC: [Interpretation] Good morning, Your
13 Honours. Yes, I can follow you.
14 JUDGE AGIUS: Thank you so much, and good morning.
15 Appearances for the Prosecution.
16 MR. McCLOSKEY: Good morning, Mr. President, Your Honours. As you
17 can see with us today is Carla Del Ponte, the Prosecutor, myself Peter
18 McCloskey, Janet Stewart, Lada Soljan, Nelson Thayer in the middle, and
19 Julian Nicholls.
20 JUDGE AGIUS: I thank you, Mr. McCloskey and Madam Del Ponte.
21 Good morning to all of you.
22 Appearances for Mr. Popovic.
23 MR. ZIVANOVIC: Good morning, Your Honours. For the Defence of
24 Mr. Vujadin Popovic, Zoran Zivanovic, lead counsel; Miss Julie Condon,
25 co-counsel; and Ms. Kelly Pitcher, case manager.
1 JUDGE AGIUS: Good morning to you, Mr. Zivanovic, and the rest of
2 the team.
3 Appearances for Ljubisa Beara. Mr. Ostojic.
4 MR. OSTOJIC: Good morning, Mr. President, Your Honours. My name
5 is John Ostojic. I'm here on behalf of Mr. Beara with Christopher Meek
6 and Walter Prentice.
7 JUDGE AGIUS: I thank you, Mr. Ostojic, and good morning to you
8 and your team.
9 Appearances for Mr. Nikolic.
10 MS. NIKOLIC: [Interpretation] Good morning, Your Honours. Jelena
11 Nikolic and Stephane Bourgon for Drago Nikolic, thank you.
12 JUDGE AGIUS: Thank you so much, Madam Nikolic, and good morning
13 to you and Mr. Bourgon.
14 Appearances for Ljubomir Borovcanin.
15 MR. LAZAREVIC: Good morning, Your Honours. Aleksandar Lazarevic
16 and Miodrag Stojanovic for Mr. Borovcanin.
17 JUDGE AGIUS: I thank you so much, Mr. Lazarevic, and good morning
18 to you and your colleague.
19 Appearances for Miletic, Radivoje.
20 MS. FAUVEAU: [No interpretation].
21 JUDGE AGIUS: Thank you so much Madam Fauveau.
22 MS. FAUVEAU: Good morning.
23 THE INTERPRETER: Natacha Fauveau-Ivanovic for Mr. Miletic.
24 JUDGE AGIUS: Appearances for Milan Gvero.
25 MR. KRGOVIC: Good morning, Your Honours. Dragan Krgovic and
1 Natalie Wagner for Mr. Gvero.
2 JUDGE AGIUS: I thank you so much, Mr. Krgovic, and good morning
3 to you and your team.
4 And last, appearances for Vinko Pandurevic.
5 MR. HAYNES: Your Honour, myself and Mr. Sarapa appear for
6 Mr. Pandurevic. We're assisted today in court by our case manager, Helena
8 JUDGE AGIUS: I thank you so much, Mr. Haynes, and good morning to
9 you and your team.
10 So let's round up ...
11 THE INTERPRETER: Interpreter's correction: Natacha Fauveau
12 representing Radivoje Miletic.
13 JUDGE AGIUS: Let's try and round up what we agreed to adjourn for
14 today. I suggest that we start first with the two issues that Mr. Bourgon
15 hinted at yesterday before we adjourned. Mr. Bourgon, you have the floor.
16 MR. BOURGON: Good morning, Mr. President. Good morning, Your
17 Honours. Good morning to my colleagues and the Prosecution.
18 Mr. President, I indicated yesterday at the end that I had two
19 issues I wanted to bring. The first one deals with the pre-trial brief
20 which was filed by the Office of the Prosecution in this case. We have
21 indicated in our own pre-trial brief, which was filed on the 12th of July,
22 that there are some difficulties that we have encountered with the
23 Prosecution pre-trial brief, as well as some defects in this brief.
24 Our first difficulty, of course, is that we believe that there are
25 unsupported sensational story which appears in the pre-trial brief. Even
1 though this is causing some prejudice to the accused, we believe that the
2 Trial Chamber can appreciate for itself whether the wording in the
3 Prosecution's pre-trial brief is supported or not, and we can live with
5 Our second most important difficulty deals with the footnotes, and
6 this is where I would like to -- this is what I would like to address this
7 morning. Without going into all of the defects with the footnotes in the
8 pre-trial brief of the Prosecution - we've highlighted those difficulties
9 in our own pre-trial brief - suffice it to say that the footnotes as they
10 appear in the Prosecution pre-trial brief do not allow the Defence to know
11 whether the exhibits and the witnesses referred to are exhibits and
12 witnesses that will be presented in this case, and that causes us some
14 While this affects the Defence, of course, but in our view it will
15 also affect the ability of the Trial Chamber, in our respectful opinion,
16 which will not have the ability, based on the Prosecution's pre-trial
17 brief, to know what exactly is the evidence that will be called upon or
18 which supports what we call the sensational story put forward by the
19 Office of the Prosecution. Consequently, Mr. President, we have invited
20 the Chamber in our pre-trial brief to order the Office of the Prosecution
21 to file a new pre-trial brief where the footnotes would indicate or would
22 refer to specific evidence that will be presented in this case, both in
23 terms of witnesses and in terms of exhibits. This was the first issue,
24 Mr. President. I can move on to the second issue or as you wish.
25 JUDGE AGIUS: No. I think I suggest that you stop here and we'll
1 give Mr. McCloskey an opportunity to explain to the Trial Chamber --
2 MR. BOURGON: Thank you, Mr. President.
3 JUDGE AGIUS: -- whether it is the intention of the Prosecution to
4 address these concerns of the Nikolic Defence or whether they are going to
5 leave the matter entirely in the hands of the Trial Chamber to decide.
6 Yes, Mr. McCloskey.
7 MR. McCLOSKEY: I'm certainly open to discuss these issues with
8 Mr. Bourgon. Our footnotes are footnoting the evidence and the exhibits,
9 and it's the first I've heard of this. Srebrenica is not a story that is
10 -- needs sensationalising. It is what it is.
11 JUDGE AGIUS: Anyway, any further remarks? Any further comments
12 on this, Mr. Bourgon, before you address the second point?
13 MR. BOURGON: No, Mr. President. We just seek for the assistance
14 of the Trial Chamber. We believe that when the Trial Chamber takes a
15 close look at the pre-trial brief it will see for itself that the
16 footnotes as they appear do not allow to know whether the evidence that is
17 cited in those footnotes refers to exhibits in this case or exhibits in
18 previous cases.
19 Now, just to avoid some time, I'm not giving all the examples, but
20 they are cited in our pre-trial brief.
21 JUDGE AGIUS: Okay.
22 MR. BOURGON: Thank you, Mr. President.
23 JUDGE AGIUS: I thank you. Could you proceed with your second
24 point, please.
25 MR. BOURGON: The second issue, Mr. President, deals with the
1 order or the decision that was rendered by the Trial Chamber yesterday
2 where, at paragraph 65, the Trial Chamber has decided what would be the
3 order of the names appearing in this case.
4 JUDGE AGIUS: Yes.
5 MR. BOURGON: And at paragraph 65 the order has been rendered as
6 being beginning with Mr. Popovic, Mr. Beara, Mr. Nikolic, Mr. Borovcanin,
7 Tolimir, Miletic, Gvero, and finally Pandurevic.
8 We are of the view, Mr. President, that in some jurisdiction,
9 including before this Tribunal in the past, the order in which the accused
10 appear on an indictment may have some importance and may have an impact on
11 the order, whether it's for cross-examination or whether it's for filing
12 the other documents.
13 In this case, we believe that Mr. Nikolic, as the lowest ranking
14 accused in this case and someone who in our view, and as will be
15 demonstrated by our case later on, has a limited involvement in this case,
16 we believe that he should come last.
17 Now, I -- my only reason for mentioning it this morning, I would
18 like to ensure that the fact that Mr. Nikolic appears as number 3 in this
19 case does not have any meaning that will be imposed on the Defence at a
20 later time. Thank you, Mr. President.
21 JUDGE AGIUS: I can assure you, Mr. Bourgon, that it has no such
22 meaning. That's to start with. Basically, we gave that order in our
23 decision of yesterday in the line -- in line with the joinder decision
24 that was handed down so many months ago, and basically it reflects the
25 order in which the indictments were filed, the original indictments were
1 filed. So I can put your mind at rest and that of any -- of the other
2 colleagues on the various Defence teams, that the order in which they
3 should appear has got nothing to do with either the seniority in the
4 military structure in Republika Srpska or the level of responsibility that
5 is being attributed to them in the indictment. So that's the -- I think
6 you should rest -- put your mind at rest on this and not worry about it.
7 The other matter will be --
8 MR. BOURGON: Thank you, Mr. President.
9 JUDGE AGIUS: I thank you, Mr. Bourgon, for having raised and
10 giving us an opportunity to clear this if there were any doubts.
11 The other matter that you raised will be addressed, decided upon
12 by the Trial Chamber in due course.
13 Yesterday, we promised to tell you whether we will be granting
14 leave to Accused Beara, Defence counsel Mr. Ostojic, to file the responses
15 to the two Prosecution motions, one on adjudicated facts and the other one
16 on Rule 92 bis. We've deliberated on that, and permission is granted,
17 leave is granted, and therefore the accompanying responses that we already
18 have will be entered in the record and taken into consideration for the
19 purpose of the decisions on the two motions that we'll be handing down
20 between now and when we restart in August. So that settles that issue for
21 -- for you.
22 Yesterday, also, we expressed our concern that between the --
23 between the date in May when the motion for protective measures was filed
24 by the Prosecution and now, there may have been a change in circumstances.
25 Also, our concern that the reasons for the Prosecution request were
1 somewhat laconic and we expected to find out whether there were additional
2 or whether they can be explained more thoroughly which would put us in a
3 position to decide whether, first, to grant the motion; secondly, if we
4 grant the motion, up to when disclosure will be disclosed. That is the
5 issue that we agreed you will be addressing this morning.
6 Mr. McCloskey, if it is your wish that we do so in private
7 session, we will go in private session. I mean, important thing is no
8 names to be mentioned, stick to the pseudonym number that you have
9 indicated in the motion for those five persons. If you've got additional
10 information, then go ahead. If not, we will be eventually later on today
11 handing down our decision.
12 MR. McCLOSKEY: Mr. President, the -- I just wanted to clear up on
13 one issue that I had spoke to, Judge Kwon had asked me about. That
14 witness, we had eventually decided that the measures were no longer
15 appropriate, so he was not on our -- he was not on our list. So that
16 person was not one of our five. I apologise.
17 JUDGE AGIUS: Thank you for that information.
18 MR. McCLOSKEY: And we have -- excuse me, Judge Prost, I'm back
20 JUDGE AGIUS: I think the best way -- the solution is looking at
21 the monitor.
22 MR. McCLOSKEY: I -- we have spoken with the investigator, and
23 there is some new, updated information and it's of a very confidential
24 nature, that we would prefer if we could just write it briefly to Your
25 Honours in an ex parte filing. I think that would be, given the context,
1 would be a better way to go, and we can get that to you very soon.
2 JUDGE AGIUS: All right. Okay. That's agreed. So we will expect
3 this ex parte filing from you, and then we will decide accordingly.
4 Please inform the -- your counterparts on the Defence teams when the
5 filing takes place, according to the procedure that we have now
7 We discussed also yesterday, or we suggested to you yesterday to
8 try and get together after the sitting and possibly make suggestions to
9 the Trial Chamber as how you wish sittings to be scheduled over -- over a
10 period of time. Have you done so? Have you met? You haven't.
11 MR. McCLOSKEY: We've spoken informally to people about various
12 things. I'm not sure we've been able to really get to that issue, but I
13 don't think there's any reason to disagree on the traditional approach.
14 JUDGE AGIUS: Yes, but you need to be a little bit more specific.
15 The reason, Mr. McCloskey, is that this is not a normal trial where I have
16 one Prosecution team and one Defence -- one or two Defence teams. So it
17 can become complicated at times. I mean, I can -- three, six, nine --
18 quite a number of persons here, and I would rather have a uniform approach
19 to the matter rather than a disjointed -- disjointed one.
20 All right. We'll take this matter up again first thing when we
21 reconvene then in August. In the meantime, I hope you would have come to
22 a fixed agreement which we'll then try to accommodate.
23 MR. McCLOSKEY: Could you remind me specifically what you would
24 like us to discuss? My list was pretty long yesterday, and it's --
25 JUDGE AGIUS: What I would like you to discuss, Mr. McCloskey, is
1 this: That our experience here has taught us that trying to push and push
2 and push intermittently, allowing for a situation of stress and tiredness
3 to fall on top of all of us will not be conducive to an effective trial
4 management. Rather, it would lead to unnecessary confrontation.
5 There are, then, circumstances when Prosecution and, equally,
6 Defence team may need some short time to reorganise themselves and -- many
7 things happen during trial. I mean, witnesses that you plan to bring over
8 suddenly are not available, new -- new collection of documents falls from
9 heaven and you need to go through it, and you said yourself you've come
10 across a huge collection from Banja Luka in May. These things happen, and
11 there may be requirements from time to time that, say, every so many weeks
12 you would require one week within which two sides can sit down and
13 reorganise the ranks, not to mention other personal problems that might
14 crop up. I mean, everyone is expected to be here in The Hague, but I
15 suppose everyone is coming, with the exception of you who live here
16 permanently, all the Defence teams are expected to be here, but at the
17 same time they -- they are away from their homes as well. So there may be
18 various problems that we can anticipate and address before we start the
19 trial. We can work it on a trial basis too. I mean, I will try to
20 accommodate you in such a way. We have discussed it before, and we don't
21 want in a big trial like this where there may be conflicting interests,
22 where maybe -- there may be problems, to go on at a pace which will not be
23 conducive to an effective and efficient trial management. So this is
24 basically it.
25 So please try to get together. And although there will not be a
1 hard and fast rule, at least give an indication to the Trial Chamber what
2 your preferences are, and then we will try to discuss it further and come
3 down with a formula which we hope will be acceptable to you and would give
4 you an opportunity to proceed with this case in an environment which is
5 workable. This is basically it.
6 Yes, Mr. Haynes.
7 MR. HAYNES: I wonder if I might make a helpful suggestion. One
8 of the ways in which the Trial Chamber keeps tabs on how the parties are
9 progressing in pre-trial is through the use of the 65 ter meetings.
10 JUDGE AGIUS: Yes.
11 MR. HAYNES: It is difficult for this number of people to assemble
12 to discuss such very important issues as to when the trial should break
13 and how long they should sit each day and the like. I wonder whether
14 you'd countenance the idea that we continued such a procedure through
15 trial, that your court officer called us all together, say, every four or
16 six weeks, to deal with such issues as to how we manage the trial going
17 on, and then you'd be informed through that and we'd all have to get
19 JUDGE AGIUS: That's a good suggestion for sure, Mr. Haynes. The
20 thing is that if they're planned -- if there is at least a programme
21 planned beforehand, an idea, that you would expect, for example, to have a
22 short break every so often and you know about it beforehand, that is
23 perhaps the best approach that one can have. The rest, of course, has to
24 be assessed as we go on.
25 Incidentally, while you mention the 65 ter meetings, I'd like to
1 make an announcement. Our senior legal officer has left for a year. He
2 will be the Deputy Registrar at the Special Court in Sierra Leone, and he
3 will be substituted for the duration of this coming year by Mr. John
4 Cubbon, who is a senior legal officer in Kosovo, in Kosovo. He will be
5 arriving on the 17th of this month, and he is and will be the person with
6 whom you will communicate from that date onwards. Until then, until then,
7 please communicate with Madam Catherine Marchi-Uhel, who is assisting the
8 Trial Chamber at a P5 level for the time being. So that in case you
9 encounter any problems or you need to communicate with our Senior Legal
10 Officer between now and the 17th. After the 17th, it will be with
11 Mr. John Cubbon. He's been briefed about the case, he has got all the
12 necessary documentation. He will be inducted in the system as soon as he
13 arrives and he should be in a position to address all your problems almost
14 with immediate effect.
15 So you will come back to us, hopefully, Mr. Bourgon, Mr. Haynes,
16 Mr. McCloskey, as we proceed.
17 You mentioned yesterday, Madam Fauveau, a press release -- two
18 press releases that continue giving the impression that all the seven
19 accused are being charged with genocide. That, we agree with you, is not
20 a precise description of what at least two of the accused are charged --
21 what at least two of the accused are charged with. Accused Gvero and
22 Miletic are not charged under counts 1, 2 and 3. I want to make it clear.
23 Although we are not responsible for issuing press releases, we can of
24 course make such statements as we are making -- making now.
25 Last thing is the matter that you raised towards the end of
1 yesterday's Pre-Trial Conference hearing, Mr. Haynes, your concerns about
2 Madam Del Ponte coming over here and make the statement that has been
3 anticipated in some of the press communiques. Our position is a very
4 simple one: Madam Del Ponte is the Chief Prosecutor of this Tribunal, has
5 every right to be present on the first day of trial, or on any subsequent
6 day, for that matter. We consider it unprecedented that we call on Madam
7 Del Ponte to tell us 30 minutes beforehand in writing what she is going to
8 address. She has a right to address the Trial Chamber. We have what --
9 our powers to -- which we can exercise if Madam Del Ponte oversteps the
10 boundaries of what is legitimate.
11 My position is that, at least from what I know, is that she has
12 been present almost at every -- the beginning of every trial that has
13 taken place here. Sometimes she has made statements on one thing,
14 sometimes she has made statements on another thing. I checked yesterday
15 what kind of statements she made, for example, in Prlic, which had a
16 procedural connotation rather than a substantive one. Other instances she
17 has made statements which were substantive relating to the case or to the
19 So what I -- after discussing with my colleagues, the three of
20 them, the position of the Trial Chamber is as follows: When we start the
21 trial, Madam Del Ponte will be given the opportunity to address the Trial
22 Chamber. We'll hear what she has to say, then we will have a very short
23 break which will give you the opportunity, each one of you, to consult
24 with your respective clients. If any of your clients wish to make a
25 statement this morning, without prejudice to any further statements that
1 they are entitled to make when we resume in August, they will have an
2 opportunity to do so, and equally you, each Defence team, will have the
3 same opportunity today, and that is not to be taken as -- that will be
4 taken as without prejudice, of course, to your eventual rights following
5 the rest of the opening statement which will be comprehensively dealt with
6 by Mr. McCloskey and which I would imagine will deal more comprehensively
7 and more substantially with the trial itself.
8 That's how we will play it this morning. And then we will proceed
9 also with articulating orally the guidelines that we extensively dealt
10 with yesterday, and you will have a further opportunity, if you wish us to
11 clarify anything for you, we will do so. If there are further guidelines
12 that you seek, we will come down with them if we feel it necessary, and
13 then we will transact any remaining business that there might be and
15 So ...
16 [Trial Chamber confers]
17 JUDGE AGIUS: Before we close the Pre-Trial Conference, are there
18 any submissions you would like to make? Yes, Madam Fauveau.
19 MS. FAUVEAU: [Interpretation] Yes, Your Honour. I would like to
20 clarify one point. Paragraph 65, which my colleague Mr. Bourgon has just
21 mentioned, this paragraph still contains the name of Zdravko Tolimir. At
22 the last Status Conference on the 6th of July, from what I understood, you
23 had asked the Prosecutor to take his name off the indictment. This is the
24 practice of this Tribunal, not to have the name of the accused in the
25 indictment when he's not present here and he's not being charged.
1 JUDGE AGIUS: Yes. I thank you for raising that issue. You will
2 recall yesterday I will dealt with this and drew the attention of
3 Mr. McCloskey that Mr. Tolimir was still there and that our position is
4 that when we resume in August he should not be there any longer. This is
5 the -- unless, of course, he turns up, which would make things different.
6 But since at the time of handing down this decision, he is still part of
7 the indictment, it would have been irregular for us to omit mentioning his
8 name, so we had to. But you're right, he shouldn't -- technically
9 speaking, he must be there. In reality, we prefer him not to be. But I
10 have also got the commitment of the Prosecution that they will attend to
11 this -- to this matter. I don't think it is in their interest.
12 The other thing I wanted to raise is you will need to file a
13 motion of severance.
14 MR. McCLOSKEY: Yes, Mr. President, no problem.
15 JUDGE AGIUS: And the decision that we will give -- will need to
16 be followed then by a revised amended consolidated indictment and also
17 another indictment for Mr. Tolimir. Two different reference numbers.
18 Okay. I think there being -- I see no further submissions coming,
19 so we declare the Pre-Trial Conference concluded, ended, and we are moving
20 straight away to the trial itself. We will not go through the same
21 procedure of asking whether the accused are receiving interpretation in
22 their own language, or appearances. I'm just going to ask Madam Registrar
23 to call the case, and we will proceed from there.
24 THE REGISTRAR: Good morning again, Your Honours. This is case
25 number IT-05-88-T, the Prosecution versus Vujadin Popovic, et al.
1 JUDGE AGIUS: I thank you so much, Madam Registrar, and on behalf
2 of the Trial Chamber, I declare the trial open.
3 I understand, Ms. Del Ponte, that you wish to address the Trial
4 Chamber. How long do you anticipate?
5 MS. DEL PONTE: Ten, 15 minutes, not more.
6 JUDGE AGIUS: Yes, Ms. Del Ponte.
7 MS. DEL PONTE: Thank you, Mr. President, Your Honours. I would
8 like to make a few brief remarks before Senior Trial Attorney Peter
9 McCloskey will make the opening statement for the Prosecution next month.
10 Earlier this week I was in Potocari attending a solemn ceremony to
11 mark the 11th anniversary of the Srebrenica atrocity. I stood with
12 thousands of mourners, mainly women, who had gathered for the burial of
13 still more victims at the memorial centre there. Over 500 victims, men
14 and boys aged from 15 to 78 at the time of their deaths, joined some 2.000
15 other victims in the ground of the cemetery at the memorial centre.
16 JUDGE AGIUS: Yes, Mr. Bourgon.
17 MR. BOURGON: Thank you, Mr. President. Subject to what the
18 Chamber has said earlier on, which of course we will -- we will adhere to
19 the directions given by the Trial Chamber, however, for the record, I wish
20 at this time to put an objection that what the Prosecutor is now saying in
21 this courtroom at this time has no place and is unacceptable, and this is
22 our objection at this time subject to what we will say after the break.
23 Thank you, Mr. President.
24 JUDGE AGIUS: Thank you. Madam Fauveau.
25 MS. FAUVEAU: [Interpretation] Your Honour, you handed down a
1 decision on the 6th of June of this year. You said that the -- the trial
2 would open and would only deal with procedural matters. Of course, if
3 Madam Prosecutor would like to address procedural matters, we cannot
4 prevent her from doing so, but the Defence is not prepared to hear such a
5 speech. This is part of the opening statement. Of course, Mrs. Carla Del
6 Ponte is welcome here and can come on the 21st of August when
7 Mr. McCloskey will be making his opening statements, but today, given the
8 ruling you made on the 6th of June [as interpreted], I don't think it's
9 the right place to make such a declaration.
10 JUDGE AGIUS: Mr. Haynes.
11 MR. HAYNES: As I understood the Court's position that there
12 should be no opening statement today, the philosophy behind it was to
13 avoid precisely the sort of emotive speech that is now being made.
14 JUDGE AGIUS: Yes. But we are not a lay jury, Mr. Haynes. If you
15 think that what Mrs. Del Ponte is going to state here today is going to
16 decide the case, you couldn't be further from the truth. Let me make a
17 very clear-cut statement straight away and then I will asked Mrs. Del
18 Ponte to continue.
19 We are here to try these seven gentlemen here, and these seven
20 gentlemen will, throughout the entire trial, enjoy at every single moment
21 the presumption of innocence that is given to them by the law until the
22 Prosecution proves their guilt, and what I have heard so far could well be
23 actually repeated by Mr. McCloskey himself later on. Are you going to
24 stop Mr. McCloskey when he stands up and makes these "emotional" --
25 MR. HAYNES: Well, Your Honour's answer really begs the question.
1 There is really no point in this being said today. It could be said on
2 the 21st of August.
3 JUDGE AGIUS: Well, I mean, let's let Mr. McCloskey address the
4 issues on the 21st of August as he thinks fit. In the meantime, let's
5 continue hearing Madam Del Ponte, and then later on, as I said, you will
6 have an opportunity to make statements yourselves.
7 [Trial Chamber confers]
8 JUDGE AGIUS: Yes. Yes, Madam Del Ponte. You may proceed
9 provided -- on the understanding that you agree and make a statement to
10 this effect, that this is not a part of the opening statement of the
11 Prosecution in this trial. That -- yes, in the meantime I see
12 Mr. Ostojic.
13 MR. OSTOJIC: Thank you, Mr. President. We'd like the record to
14 reflect that we object to Madam Del Ponte's statement as well, but quite
15 candidly, Your Honour, we don't know if it's an opening statement because
16 we haven't heard it all. However, it seems to be more of a closing
17 argument. Her statement thus far has facts in it and it's conclusory and
18 it seems to be, according to the press releases and to what Mr. McCloskey
19 said, emotional. It's a closing statement as well as an opening
20 statement. We certainly object to it, Your Honour. So we want the record
21 to reflect that.
22 JUDGE AGIUS: I thank you, Mr. Ostojic.
23 MS. CONDON: Your Honour, we would also seek to object to the
24 statement being read as well, on behalf of Mr. Popovic.
25 JUDGE AGIUS: I thank you, Ms. Condon. Is there any Defence team
1 that doesn't want to associate themselves with this?
2 MR. LAZAREVIC: I was the only one who hasn't raised it. We
3 second all our colleagues said.
4 JUDGE AGIUS: I thank you, Mr. Lazarevic.
5 MS. DEL PONTE: Mr. President, may I say something?
6 JUDGE AGIUS: Yes.
7 MS. DEL PONTE: I am absolutely stupefied. What I can understand
8 is that it is an opening speech that will start 21st of August, as it was
9 established, because my colleague will speak on it. But today is the
10 opening of the trial, and so it seems to me that the Chief Prosecutor of
11 this Tribunal can come in court and speak because now it's time for the
12 Prosecutor to speak. Opening speech -- you said, President, it is not an
13 opening speech. Yes, it is an opening speech. It is introductory remarks
14 to the opening speech. What you can decide, Mr. President, is to tell me
15 that the opening speech cannot be divided in two time, so not the 14th of
16 July but the start of the trial, and so that I will come at the 21st of
17 August, and I will be able and free to speak as Prosecutor from this
18 Tribunal in this case. And no emotion, absolutely no emotion. Facts. My
19 dear Defence lawyers, facts. Thank you, Mr. President.
20 JUDGE AGIUS: Yes. I think -- one moment. One moment. Let us
21 discuss first and I think we'll close this down very soon and proceed with
23 JUDGE KWON: Can I ask Madam Del Ponte one question. In the
24 previous decision of this Chamber, it was decided that the Chamber will
25 hear the opening statement on 21st of August.
1 MS. DEL PONTE: Yes.
2 JUDGE KWON: And confining the debate today on procedural matters.
3 So, what, would there be any problem on your part to have introductory
4 comment on 21st of August?
5 MS. DEL PONTE: Absolutely not. Absolutely not, Judge Kwon. It
6 is only because we start this trial on 14th that I thought - and I spoke
7 with the President of the Trial Chamber - that it would be -- it would be
8 convenient by the start of this important trial that part of the opening
9 speech, these introductory remarks, were made by me on this day, that it
10 is the start of the Srebrenica trial. That was the only reflection that
11 we have done. And I want to underline, and you know, Judge Kwon, in the
12 trial of Milosevic I made an opening speech, starting of the opening
14 The problem, in my view, is just to tell me, no, it is not
15 possible to divide the opening speech in two sessions, and so I will come
16 on the 21st. That is -- that is, in my view, what it is --
17 JUDGE KWON: Thank you.
18 MS. DEL PONTE: Thank you, Judge Kwon.
19 [Trial Chamber confers]
20 JUDGE AGIUS: So the decision is as follows, Madam Del Ponte,
21 that's why I had suggested earlier that you make it clear whether this was
22 to be considered as part of the opening statement or not. The decision of
23 the Trial Chamber is that if you take the position that it is part of the
24 opening statement, then that will happen on the 21st as agreed with --
25 with the parties. Of course, you will have all the opportunity to state
1 whatever you wish on that occasion, and you will be followed immediately
2 by Mr. McCloskey.
3 MS. DEL PONTE: Thank you, Your Honour.
4 JUDGE AGIUS: I thank you for having come over, Madam Del Ponte.
5 So are there any further remarks?
6 MR. HAYNES: I do hope that when Madam Del Ponte comes on the 21st
7 of August she could avoid giving evidence in the matter.
8 JUDGE AGIUS: I think, Mr. Haynes, let -- I don't think Mrs. Del
9 Ponte needs any lectures from you --
10 MS. DEL PONTE: Thank you.
11 JUDGE AGIUS: -- on how to proceed, and I'll certainly not tell
12 her what to state and what not to state.
13 Let's deal with the other issue that remains, and that's the
15 What we will be telling you now will be followed in due course,
16 possibly later on today, by a written version of these guidelines. I'll
17 deal first with the scheduling of witnesses, something that we touched
18 upon and agreed upon almost entirely yesterday.
19 Number one, by the 15th day of each month during trial and to the
20 greatest extent possible, the Prosecution shall provide the Trial Chamber
21 and the Defence teams with a list of all witnesses it expects to call in
22 the following calendar month. This list shall include an indication of
23 the exhibits the Prosecution intends to use with each proposed witness and
24 an estimated total time to be taken for examination-in-chief of each
1 Mr. McCloskey, we will be handing down this decision in writing
2 later on. We'll refine the wording and you will have it in writing.
3 Subsequently, the Defence teams will coordinate amongst themselves
4 - this is the undertaking we have from you - and within seven days of the
5 Prosecution providing its monthly list, they shall provide the Trial
6 Chamber and the Prosecution with an estimate of the total time expected to
7 be taken by each Defence team cross-examining each witness.
8 In other words, to make this clear, what -- Mr. Bourgon, in
9 particular -- what we expect is not to have, say, an indication the
10 Defence teams put together require five hours of cross-examination and
11 then we'll find ourselves in a position that we don't know who will be
12 cross-examining and what time is required by each of the Defence teams
13 that will be cross-examining, because otherwise we'll not be in a position
14 to control. So you will need to be specific, specific when it comes to
16 Then by -- a second point: By 5.00 p.m. on Thursday of each week
17 during trial, again to the greatest extent possible, and that's because of
18 the various unknown factors and contingencies that we are all aware of,
19 the Prosecution shall provide the Trial Chamber and the Defence teams with
20 an updated list of all witnesses it expects to call the following week.
21 Again, the list shall include or make reference to the exhibits the
22 Prosecution intends to use with each proposed witness and an estimated
23 total time to be taken for examination-in-chief of each witness. And then
24 by 5.00 p.m. of the following day, of Friday of each week during trial,
25 the Defence teams will provide the Trial Chamber and the Prosecution with
1 an estimate or a confirmation -- or non-confirmation, an estimate of the
2 total time expected to be taken by each Defence team cross-examining each
4 We are proceeding this way because there may be variances to the
5 initial monthly estimate, and those variances will need to be made known
6 to the Trial Chamber and exchanged between the parties before the start of
7 the following week. This is, I think -- I hope it's clear enough for
8 everyone and that it is workable. If you have any concerns and any
9 problems, we are here to listen to what you have to say.
10 Then the questioning of witnesses. We are going to deal with this
11 matter somewhat more specifically, and we have, in coming down with the
12 following guidelines, taken into full consideration the responsibility
13 with which you made your respective statements yesterday and the readiness
14 that we perceived on your part to be practical in your approach and to
15 cooperate to the largest extent possible to guarantee an efficient trial
17 So for the time being we will not be establishing a ratio of time
18 to be allocated for Prosecution and cross-examination -- in chief and
19 cross-examination. We take your word that you will be doing, both sides,
20 your utmost, and then after we have given it a try, we will decide whether
21 to continue to proceed with this great extent of flexibility or restrict
22 it because of trial management concerns that may ensue.
23 So the first guideline under this category, questioning of
24 witnesses, is as follows: The Defence teams have assured the Trial
25 Chamber that they will use their best efforts to coordinate amongst
1 themselves such as to avoid unnecessary or repetitive cross-examination of
2 Prosecution witnesses. Accordingly, the Trial Chamber will not, at the
3 present time, set a specific time limit on the Defence for
4 cross-examination of Prosecution witnesses. Should this approach prove
5 not to be conducive to an effective or an efficient trial management, then
6 the Trial Chamber will revisit the issue and will hand down fresh new,
7 different guidelines, which will, of course, also be in conformity with
8 the guideline indicated recently by the Appeals Chamber in the Prlic
9 appeal, which also ensures a measure of flexibility.
10 Second point under this category of questioning of witnesses:
11 When presenting a witness with something that -- with a fact that the
12 witness has previously stated during testimony or in a written -- previous
13 written statement, the parties should avoid paraphrasing what the witness
14 is purported to have stated earlier and should, rather, quote directly
15 from the transcript of that previous evidence, testimony, or prior
16 statement, giving relevant page number for easy reference, also to Defence
17 counsel and Prosecution alike.
18 A prior witness statement may be used to refresh the memory of a
19 witness irrespective of whether or not such a statement has been admitted
20 into evidence. That is the rule that we will be following.
21 Re-examination of a witness will be allowed, of course, but it
22 will be limited to matters raised in cross-examination.
23 There's one further issue that I can briefly mention here. You
24 know that as a rule one should not resort to leading questions, direct
25 questions. The practice that we intend to follow is that you should avoid
1 using leading questions, however, there may be instances where it is
2 practical to lead a witness. The practice will be that if, when we have
3 such instances, we have no -- we hear no objection from the opposite
4 party, then we will proceed with leading questions. The moment there is
5 an objection, of course we will consider it. This is the practice that we
6 will be using and that is generally used in several trials here.
7 Lastly, once a witness has become -- this is important. I mean,
8 we assume that we -- you all know it already, but it is of such importance
9 that we thought it's important to repeat it.
10 Once a witness has begun testifying before the Trial Chamber, the
11 parties, Prosecution and Defence alike, should have no expert
12 communication with the witness before the completion of the witness
13 testimony except upon leave of the Trial Chamber. When such leave to
14 communicate with the witness is granted by the Trial Chamber, the
15 communication should not involve the substance of the witness's testimony.
16 This is an absolute rule which should be followed at all times in the
17 course of the trial.
18 Again, this same advice and caution will be given to each witness
19 when his or her testimony is adjourned from session to session and from
20 day to day.
21 Admission of evidence is the third category that -- of guidelines
22 that we wish to address. And proposed documentary and other evidence may
23 be submitted in advance of -- or during the trial and marked for
24 identification. Now, this exercise will need to be coordinated with the
25 Registry, with the office that manages the e-court system, because we will
1 be conducting the case in a purely e-court environment.
2 Such proposed evidence is not admitted -- and this answers your
3 question, Mr. Bourgon. Such proposed evidence is not admitted until the
4 trial makes a ruling on admissibility, either orally or in writing, at
5 which point it will be given an official exhibit number.
6 Is this clear enough?
7 The opposing party or parties may object as we go along to the
8 admission of a particular item of proposed evidence tendered by the other
9 party on grounds of relevance or probative value. That is inclusive of
10 authenticity, of course. If a party challenges the authenticity of a
11 piece of proposed evidence, it should do so at the earliest opportunity,
12 and it must specify its reasons for doing so. Upon hearing the objections
13 of the party challenging a piece of proposed evidence, the Trial Chamber
14 shall rule on its admissibility. The understanding also is that once a
15 document is tendered into evidence by one party, if we hear no objections
16 to its -- as to its admissibility, it will then be admitted into evidence,
17 that stands clear.
18 Last point that we wish to make under this category is that - and
19 I understand that you agree to this already - is that a witness whose
20 statement is offered under Rule 89(F) must always be available for
21 cross-examination. I hope that's clear to all of you.
22 And then there are two final points which we categorise under
23 conduct of trial. The first one is that, as announced yesterday and as is
24 being confirmed today, the trial will be conducted using the electronic
25 court management system, and the provisional practice direction of -- on
1 the application of an electronic court management system shall govern the
2 use of the system and the various responsibilities of the parties, of the
3 respective parties.
4 I can confirm again what I hinted at yesterday, that arrangements
5 have been made with the officers of this Tribunal in charge of the e-court
6 system to make sure that each one of you will receive training. Have the
7 days been communicated to you? They have. Please ensure your
8 availability and your punctuality for these lessons, because should you
9 not do so, then there will be problems, and the trial will proceed
10 notwithstanding. So the problems will be for you and not for the Trial
11 Chamber. So let's hope that you pay due -- all due attention to this.
12 Second matter, and to this we are attaching a lot of importance,
13 also because we'll need to monitor the efficiency of the way in which we
14 will be conducting the trial. We believe that there are no hard and fast
15 means or rules that we can adopt from the very beginning in a rigid way
16 and then have to revise them as we go along. So rather than doing that,
17 we are giving a direction -- a directive to the following effect: A
18 system for monitoring the use of time shall be established by the
19 Registry. The Registry will be responsible for the recording time used by
20 the Prosecutor -- by the Prosecution for its examination-in-chief, by each
21 of the Defence teams for cross-examination, by the Prosecution for
22 re-examination, by the Trial Chamber for putting questions to witnesses,
23 and last but certainly not least, all time used on other matters,
24 including procedural matters, of which we usually have plenty, almost
25 infallibly in every sitting.
1 So when we state this it is our intention that if we guarantee the
2 Prosecution, for example, three hours of examination-in-chief, we mean
3 three effective hours and not three hours with interruptions, including
4 interruptions from us, from you, and discussions on procedural matters.
5 Three hours means three effective hours. The same will apply to each one
6 of the Defence teams. So we will need -- we will need to monitor.
7 At the end of each established period of time we will have a
8 report, we will make an assessment, and if there is a need to come back
9 and discuss these matters with you, we will do so and then we will proceed
10 accordingly. So that is the position, so that we want to make sure that
11 you are aware that this system of monitoring will be in place.
12 Are there any issues, further issues by way of guidelines that you
13 expected us to address and that we haven't or that you wish us to address
15 Mr. Haynes.
16 MR. HAYNES: There's just one. I'm not sure whether this is a
17 rumour or an urban myth, but there seems to be a belief that there is some
18 sort of appearance scheduled for the 14th of August. Is that right or
20 JUDGE AGIUS: No, no. Try to understand, Mr. Haynes, that we plan
21 the use of courtrooms a good three months in advance, and each one of us
22 tries to secure an equal time of sitting in the mornings and sitting in
23 the afternoons. That is something that we work upon regularly.
24 We have reserved a courtroom for the 14th, but on the 14th we are
25 going to receive e-court training, the Trial Chamber. Then others will
1 continue. During that week, if between now and then there are issues
2 emerging that need to be addressed in court, then, yes, there will be a
3 sitting. Of course, you will be informed in advance, but the entire week
4 we have courtroom availability in case we need it.
5 As at present, we are not envisaging any particular sitting during
6 that week, but it may well be -- become different as we go along and as we
7 approach the 14th of August. So I can't tell you what's going to happen.
8 It depends. But again, we will make an effort not to disrupt the
9 programme of e-court training which could only be given once the -- each
10 Defence team is entirely composed. And we will also be addressing your
11 other problems that may surface between now and then. There are motions,
12 for example, that are still pending that may require further elaboration
13 orally here in a sitting, and we may fix a hearing for the 14th, 15th,
14 16th, 17th, 18th, I don't know.
15 MR. HAYNES: That's very helpful. Thank you very much.
16 JUDGE AGIUS: But the other thing is please be advised that on the
17 1st of September there will not be a sitting, on the 1st of September,
18 because of a personal commitment of one of us.
19 All right. Any further issues you would like to raise on this
20 first day? Yes, Mr. McCloskey.
21 MR. McCLOSKEY: Very small point. Yesterday, you asked me about
22 expert reports and I recalled that there is a handwriting expert that's
23 finishing up a report. We've made reference briefly to it yesterday
24 because Ms. Nikolic has a -- wants a document she's reviewing but there is
25 an expert report coming in from a handwriting expert. It should be done
1 fairly soon.
2 JUDGE AGIUS: Okay. I thank you, Mr. McCloskey.
3 Anything else? So we declare closed this first day of trial. We
4 will resume on the 21st of August with the opening statement of Madam Del
5 Ponte and Mr. McCloskey, or earlier if we need to discuss issues that may
6 arise between now and then. Thank you.
7 --- Whereupon the hearing adjourned at 10.20 a.m.,
8 to be reconvened on Monday, the 21st day
9 of August, 2006, at 9.00 a.m.