Tribunal Criminal Tribunal for the Former Yugoslavia

Page 328

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

Page 329

1 too.

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.

Page 330

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

Page 331

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

7 Kaker.

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

Page 332

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

4 that.

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

13 problem.

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

Page 333

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.


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

Page 334

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.


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

Page 335

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

Page 336

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

19 here.

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,

Page 337

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

6 established.

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

Page 338

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

Page 339

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.


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

18 together.

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

Page 340

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

Page 341

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

18 events.

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

Page 342

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

14 adjourn.

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.

Page 343

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.

Page 344

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

Page 345

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.

Page 346

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

Page 347

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?


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

22 it.

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.

Page 348


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

13 speech.

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

Page 349

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

14 guidelines.

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

25 witness.

Page 350

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

15 that.

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

Page 351

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

3 witness.

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

16 management.

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

Page 352

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

Page 353

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

Page 354

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

Page 355

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.

Page 356

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

14 further?

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

19 wrong?

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

Page 357

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

Page 358

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.