Tribunal Criminal Tribunal for the Former Yugoslavia

Page 7896

1 Wednesday, 28 February 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.17 p.m.

5 JUDGE AGIUS: Good afternoon. Madam Registrar, could you

6 kindly --

7 THE REGISTRAR: Good afternoon, Your Honours. This is case number

8 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.

9 JUDGE AGIUS: I thank you. All the accused are here. Same for

10 the Defence teams except for -- yes, Mr. Josse.

11 MR. JOSSE: Mr. Krgovic is working away from the courtroom for a

12 few days, Your Honour.

13 JUDGE AGIUS: Thank you. Prosecution is Mr. McCloskey,

14 Mr. Nicholls, Mr. Vanderpuye. I don't see anyone else.

15 Mr. -- are there any preliminaries?

16 Yes, Mr. Vanderpuye.

17 MR. VANDERPUYE: Good afternoon, Mr. President and Your Honours.

18 There is a preliminary issue with respect to the disclosure of certain

19 documents that I furnished to the Defence relevant to the witness's

20 testimony. The documents are essentially internal documents consisting of

21 information reports, personal notes, notes to file, and things of that

22 nature which were missed during the course of preparing the witness for

23 her testimony. Yesterday, pursuant to the witness's testimony about the

24 transferral of the binder of 500 pages to the Tribunal, I undertook to

25 search for documentation pursuant to the request of my colleague,

Page 7897

1 Mr. Zivanovic. And during the course of that search uncovered a small

2 cache, if you were, or a file, of documents that were apparently prepared

3 by Ms. Frease. And I think that, after having reviewed the documents, it

4 appears that they are directly relevant to the issues upon which she has

5 testified and I have furnished that on to the Defence.

6 At the time I compiled the documents I had e-mailed the Defence

7 and invited them to consider their position with respect to this matter,

8 and I have differing views on how to proceed. So that's the reason why I

9 have raised at this point and I think it would be worthy of some

10 discussion, since Ms. Frease is actually on the stand presently.

11 JUDGE AGIUS: Thank you for that information, Mr. Vanderpuye.

12 Would these documents have been -- would these documents be such as would

13 fall under Rule 66 or Rule 68? Could you explain that, please? Because

14 obviously we haven't seen them, we are not aware of the nature of their

15 substance.

16 MR. VANDERPUYE: We have reviewed the documents with respect to

17 Rule 68 or any exculpatory material that may be contained in them and, in

18 fact, they are consistent with the witness's testimony and to the extent

19 that they actually bear upon the testimony of previous witnesses, in

20 particular the commander that was referred to, what's contained in the

21 documents is also consistent with the testimony that was offered by that

22 witness. But obviously I'd leave that to the Defence to dispute or

23 accept. The statements are also the statements of the witness. And so I

24 think this they do fall under Rule 66 to that extent.

25 JUDGE AGIUS: Definitely. All right. So does any one of the

Page 7898

1 Defence team wish to address this matter?

2 Mr. Ostojic.

3 MR. OSTOJIC: Good afternoon, Mr. President, Your Honours.

4 JUDGE AGIUS: Good afternoon to you, too, sir.

5 MR. OSTOJIC: First I would like to allow you to see the complete

6 picture, and I think, although with all due respect, my learned colleague,

7 you -- didn't fill you in on some critical information. We received or an

8 e-mail was sent to us at 12.29 this afternoon telling us it's urgent.

9 There was an invitation. His invitation was to suspend Ms. Frease's

10 testimony. We did not have the documents attached to the e-mail. They

11 were given to us shortly before we entered this courtroom laying our desk

12 here, approximately 2.10, 2.05 for some who came earlier.

13 We've always wanted the complete file of Stefanie Frease; we were

14 never given that complete file. My learned friend says on page 1, line

15 20, "it's information reports, personal notes, notes to file, and things

16 of that nature." I want them on the record or someone to attest in

17 writing to me that that's her complete file. I dare say that I suggest

18 that it is not, that this individual, Ms. Frease, has been doing this

19 intercept project for several and many years. She's engaged with many

20 researchers, many other investigators, many witnesses. I'd like to get

21 her complete file. It's important. I do not, again with the most

22 respect, rely on the Prosecutor to tell me whether that evidence is

23 consistent or part of Rule 68. I'd like for the benefit of my client to

24 make that examination. They've invited us to suspend Ms. Frease's

25 testimony because it's a critical issue to have a witness testify and

Page 7899

1 give answers. I don't believe that they're consistent, her answers. I

2 don't believe they have been, but we could argue about that at some other

3 time.

4 My other big question to this Court is, the alternative is not

5 necessarily to suspend Ms. Frease's testimony, but it's to strike her

6 testimony. Who is she and what is she? If she is offering summary of

7 data that we can summarise and we can assess, whether it's for its

8 authenticity or reliability, that's the job of the attorneys, I

9 respectfully say, to try to convince the Court and ultimately

10 Your Honour's decision on those issues. All she's doing is an

11 investigator who assisted on a project. If it's fair that a Court will

12 allow an investigator to give such testimony, we also have our

13 investigators and personnel who would like to testify and say, "Here is

14 our analysis, let us testify as to how we see the evidence." I don't

15 think it is fair. She showed us yesterday, I believe at least, that she

16 doesn't have a unique expertise in this area at all, whether it's chain of

17 custody or whether it's on assessment of reliability of these documents.

18 She's admitted she's not a criminologist, said that she did not utilise a

19 forensic expert in part of her testimony yesterday. What is the basis of

20 her testimony? If it's to fill time, I could accept that, I suppose, but

21 it's not expertise in any manner. So we would ask that her testimony be

22 suspended, but only after we receive her entire file so we can have

23 adequate time to review it or, in the alternative, to have her testimony

24 stricken and barred from this Court or this proceeding. Thank you,

25 Your Honour.

Page 7900

1 JUDGE AGIUS: I thank you so much, Mr. Ostojic.

2 Anyone else wishes to address the Trial Chamber?

3 Madam Fauveau.

4 MS. FAUVEAU: [Interpretation] I would like to simply say that I

5 agree with the submission of Mr. Ostojic. After having seen a few

6 documents, a few of these documents, I see that they are internal notes,

7 but also information reports about potential witnesses, and about -- other

8 people were mentioned in other documents and that could be a relevant

9 source of information.

10 JUDGE AGIUS: Mr. Bourgon.

11 MR. BOURGON: Thank you, Mr. President. Good afternoon,

12 Your Honours. Just to say that we also join in the arguments presented by

13 Mr. Ostojic and to say that that is on both issues, that is both the issue

14 of the documents that we have just been served with, but also the issue

15 concerning the purpose and the meaning of the testimony of the witness who

16 is presently on the stand. Thank you, Mr. President.

17 JUDGE AGIUS: I thank you, Mr. Bourgon.

18 Mr. Vanderpuye.

19 MR. VANDERPUYE: Thank you, Mr. President.

20 JUDGE AGIUS: Can I first ask you to address this complete file

21 issue that was raised by Mr. Ostojic?

22 MR. VANDERPUYE: The complete file issue raised by Mr. Ostojic, I

23 think, can be bifurcated. One has to do with the documents that are

24 contained within it that are reasonably discoverable under the Rules and

25 others has to do with documents that are not discoverable but are, in

Page 7901

1 fact, the work product of the witness and of the Office of the

2 Prosecutor. So to the extent that Mr. Ostojic wants everything that

3 Ms. Frease has done, that is contained in this file, I don't know that

4 he's entitled to everything that was created by Ms. Frease for two

5 reasons: One is that some of those materials are internal work product

6 and therefore privileged and not disclosable to the extent that they don't

7 contain exculpatory material. The second is he is entitled to documents

8 that bear -- that have some relevancy to the subject matter of her

9 testimony. Mr. Ostojic indicated previously Ms. Frease has worked with

10 the Office of the Prosecutor for a long time, she worked in different

11 capacities, some of which do not bear upon the subject matter of her

12 testimony or the capacity in which she has been called in this case.

13 So there is a limit with respect to the documents that are

14 relevant to her testimony. As far as I can tell the Court now, the

15 documents that have been disclosed represent -- represent the -- the

16 totality of the documents that we are aware of that bear upon the subject

17 matter of her testimony that are not otherwise privileged and that are

18 not otherwise the subject of a work product within the Office of the

19 Prosecutor.

20 The second portion of Mr. Ostojic's argument, if I may address

21 that, has to do with her capacity to testify in the case. I think the

22 Defence is well aware of the capacity in which Ms. Frease has been called

23 to testify in this matter. We've not represented Ms. Frease to be an

24 expert in relation to her examination or analysis of intercepts. I don't

25 believe that was ever a question asked on direct and I don't think it's

Page 7902

1 ever been implied that she's been called in that capacity. She's

2 testified previously, and I'm sure that the Defence is aware of the

3 subject matter of that testimony, which is essentially consistent with the

4 testimony that she's offered here today with respect to her work

5 concerning the intercepts used in this case. It would seem to me that the

6 appropriate time in which to raise the objection to the propriety of

7 calling Ms. Frease as a Prosecution witness would have been well in

8 advance of her testimony, and as soon as the subject matter of her

9 testimony would reasonably have become known to the Defence, which I could

10 only assume would have preceded actually the commencement -- well, would

11 have shortly followed the commencement of the case, as soon as she was

12 identified on the Prosecution's 65 ter witness list.

13 It seems to me that the objection to her testimony is untimely; it

14 could have been made either at the beginning of her testimony or prior

15 thereto and, in fact, should have been. The second reason that I think

16 it's an inappropriate objection is because Ms. Frease is not testifying in

17 the capacity of an expert, but is testifying about particular work that

18 she did concerning the intercept collection in a manner that would be

19 helpful to the Court in understanding the nature and relation of the

20 intercepts to other material factual questions in the case, such as the --

21 the -- such as intercepts that have been recorded at multiple sites,

22 identifying for the Court precisely in which instances those

23 communications have occurred because that was not within the ken of the

24 individual intercept operators to do. It was not necessarily clear and

25 immediately identifiable from the examination of the material because

Page 7903

1 there are instances in which those transcriptions occur simultaneously but

2 are designated by different times and different locations such that it

3 wouldn't be readily identifiable to the Court and therefore her testimony

4 is extremely useful in that regard. She's being called in that capacity

5 in order to crystallise for the Court the process by which the intercepts

6 that are being offered by the Prosecution was gathered in order to

7 crystallise for the cord those actions undertaken by the Prosecution or

8 with respect to the intercepts that bear upon the reliability of those

9 intercepts.

10 She was not asked directly what her opinion was, with respect to

11 whether or not the intercepts were reliable. She was asked about specific

12 tasks that she undertook in that regard in order to evaluate the

13 reliability of those -- of that material. So I think that Mr. Ostojic's

14 argument, although I think is well articulated, is -- is not -- is not one

15 upon which Ms. Frease's testimony should be stricken or precluded,

16 particularly as a result of the disclosure of the documents in addition to

17 the propriety of her testimony in the first instance.

18 JUDGE AGIUS: All right. I thank you, Mr. Vanderpuye. I have a

19 few questions to you before I give the floor again to Mr. Ostojic and

20 anyone else who wishes to speak.

21 You dealt in the beginning, in response to my invitation about

22 whether the disclosure in relation to Ms. Frease's testimony is complete

23 or not, and you seem to hint, if I understood you well, that disclosure is

24 complete, barring documents which are not subject to disclosure. Do I

25 read you well?

Page 7904

1 MR. VANDERPUYE: I'm sorry, I was just momentarily distracted.

2 I'm reading the transcript and I do understand your question. Well, I

3 will say that you read me close to well.

4 JUDGE AGIUS: So could you make -- could you bring me closer?

5 MR. VANDERPUYE: I'll try to draw you in just a little. We are

6 presently continuing to search, to make sure that what we've disclosed is

7 as complete as it can be. The documents that I have disclosed right now

8 are all of the documents that -- that we are aware of that bear on the

9 testimony -- as I've said before, bear on her testimony and are otherwise

10 not privileged from disclosure.

11 Because of the fact that we discovered this at the last instance,

12 I am reluctant to tell the Court or represent that it is an exhaustive

13 list of all of the documents. We have been searching our own files

14 essentially since I -- since before I e-mailed the Defence, and I think

15 that was several hours ago, and these are the documents that we've come up

16 with and identified. I cannot make that representation to the Court, I --

17 I feel uncomfortable doing it and I don't think it would be genuine to

18 make that representation. But I can tell you that there do exist

19 documents that are, in fact, privileged. So that I don't want to make the

20 representation that there are five documents in the file that we found.

21 They are not, they are more, but those documents, it is our position, are

22 work product, are unrelated otherwise to the subject matter of the

23 witness's testimony, and are -- and are privileged. I think that's about

24 the extent of the representation I can make to the Court and Defence

25 counsel at this time.

Page 7905

1 JUDGE AGIUS: Okay. Thank you. And one further question.

2 Obviously none of us has seen these documents from -- but from what I

3 could gather at least, some indication that these are internal memoranda

4 from Ms. Frease to her superiors, I suppose. Wouldn't that fall under

5 paragraph A of Rule 70 which excludes or -- excludes from disclosure,

6 reports, memoranda, or other internal documents prepared by a party's

7 assistance or representatives in connection with the investigation or

8 preparation of a case? Because I heard what Madam Fauveau had to say, I

9 heard what Mr. Ostojic had to say, and what you said, because if that is

10 the case, and you are disclosing them nonetheless, the question that

11 Mr. Ostojic put about the completeness or otherwise of disclosure becomes

12 a little bit more pertinent. Or opens up anyway.

13 MR. VANDERPUYE: I would respond as follows, Mr. President: The

14 view that Mr. McCloskey and our team is taking with respect to these

15 documents is a broad one. We're not seeking in any way to stretch our

16 view the limitations of paragraph A of Rule 70 in order to avoid the

17 disclosure of these documents. We feel that they are pertinent to the

18 subject matter of the witness's testimony, and frankly had I seen these

19 documents when Ms. Frease had first testified, they would have been

20 disclosed at that point because they really do bear upon issues that were

21 raised by -- in the cross-examination, and in the direct testimony to an

22 extent. And that is the view that we've taken and that's the reason why

23 we're disclosing them. We're not suggesting that they clearly outside the

24 scope of Rule 70, paragraph A, but we feel that in an abundance of caution

25 and in fairness to the Defence they should be made aware of these

Page 7906

1 documents and they should have them in order to effectively cross-examine

2 the witness.

3 JUDGE AGIUS: All right. Then what about who has already

4 cross-examined the witness?

5 MR. VANDERPUYE: The other half of the e-mail that I had sent --

6 JUDGE AGIUS: This is the sore point of the whole debate because

7 Mr. Zivanovic will ask for another two hours 40 minutes. More. Yes,

8 Mr. Vanderpuye, I'm trying to ...

9 MR. VANDERPUYE: We had considered the complication of attending

10 to the fact that Mr. Zivanovic had already completed his examination, and

11 what one of the Defence counsel has suggested would be perhaps to have

12 Mr. Zivanovic or those who had already proceeded or completed their

13 cross-examinations to review the documents and to the extent that

14 re-cross-examination should be required, we're certainly in a position, I

15 think, to consent to that. Of course that is within the discretion of

16 the Court and there are time considerations and constrains but I think

17 that would be an appropriately reasonable tact to take particularly for

18 Mr. Zivanovic.

19 For counsel that haven't gone yet, then it becomes a question of

20 how much time they would require in order to review the documents. I can

21 tell you there are about five documents and their length, of course, is

22 not necessarily material, but they are not particularly long. But I

23 think it is appropriate for counsel to have the opportunity to review

24 them. I don't know necessarily that that would -- I don't know

25 necessarily that that would change the cross-examination that's already

Page 7907

1 been undertaken thus far. That is entirely up to Defence counsel and I

2 wouldn't presume -- I wouldn't presume to tell them how to do their job or

3 what's important to their clients or them. I think that is a reasonable

4 consideration.

5 JUDGE AGIUS: I thank you very much, Mr. Vanderpuye.

6 Mr. Ostojic, since you are in a somewhat different position than

7 that of your colleagues as you are first to go, I would also invite you

8 to address this last point that I raised with Mr. Vanderpuye, and which

9 he has responded to. In other words, being prepared for

10 cross-examination.

11 MR. OSTOJIC: As I think the Court has seen, everything can be

12 placed in a certain context. When we discuss issues like completeness of

13 documents or records, we honestly get a respectfully evasive answer. If

14 there is a privilege and if there is a work product privilege that they

15 are asserting, they can make a privilege log, identify the documents as we

16 do in many jurisdictions to tell us how many documents, the Court could

17 have examined that ex parte to determine whether it constitutes either a

18 privilege or work product. They don't go that far. They took a chance on

19 calls Ms. Frease and now they don't want to suffer the consequences of

20 some of her testimony and some of her cross by supplementing with

21 additional and new documents. If they give us one of her internal

22 documents, I say they've -- in themselves have made an admission that all

23 the documents should come in from Ms. Frease. They've waived the right to

24 raise it as a privilege or a work product.

25 Secondly, we've seen the argument in connection with the

Page 7908

1 completeness. Again, I have to stress, it's not complete. It's clear

2 it's in the complete. We think there is more documents than this. There

3 must have been more documents if she interrelated and spoke to many

4 different investigators, researchers, attorneys, et cetera. We're not

5 looking to get behind their strategy, although they've shared that with us

6 and I hope they had. We know what their strategy is in the case and it

7 it's developing slowly and we recognise it. We're not looking for

8 anything internal. We are looking for things to shed light on the two

9 critical issues in connection with the logbooks, that is whether or not

10 they are reliable and whether or not they are authentic. We think from

11 that evidence, from those internal memos, it can draw or shed some light

12 on that issue.

13 In connection with my colleague sharing on page 10 where he says

14 he felt that, that we should have had them in order to effectively

15 cross-examine the witnesses. He's correct on that. It is undisputed in

16 order to cross-examine a witness, especially an in-house witness that the

17 Prosecutor has nurtured, developed, worked with over the course of the

18 last several years, we should have had all that material before. We

19 should have had it not only before her testimony but well before the trial

20 commenced last August or July when it formally did.

21 Finally he raises a claim that Ms. Frease is a fact witness. I

22 will accept his agreement on that, that she's a fact witness, and I would

23 ask the Court to just look at some of the questions that my learned friend

24 asked this witness. He used the word "opinion" many times, several times

25 during his direct examination of her. And just so the record's clear, if

Page 7909

1 we look on Monday's transcript during the direct examination, the 26th of

2 February, page 66: "Question: In evaluating --" lines 13 and 14. "In

3 evaluating the two intercepts, would it be fair to say in your opinion

4 that the summarisation version of the conversation carries the same import

5 as the verbatim version of the intercept."

6 He goes on, on many of these instances, to ask her opinion not

7 only authenticity, but on reliability, on import of -- on the import of

8 certain intercepts, and he knows that it's a violation. Or I should say

9 they know it's a violation. She is not an opinion expert, she shouldn't

10 be allowed to give opinion testimony. I again, as I said in the

11 opening -- in the opening argument on this issue, we should bar her

12 testimony in connection with the opinions that she has given. If she is a

13 fact witness, walk us through the chain of custody, walk us through where

14 you felt there is reliability.

15 JUDGE AGIUS: Move to the next point.

16 MR. OSTOJIC: Those are the three points I'd like to -- it's a

17 very serious issue, but I think it's continuing problem. So on privilege,

18 we should be given a privilege log. Completeness of documents, they have

19 not shared with us and they -- yet they agree that those documents are

20 necessary. They're giving us a selective review of those documents. And

21 number three, it's clear that she's acting as an opinion and fact witness

22 and we ask that you to strike all her opinion testimony.

23 JUDGE AGIUS: You haven't answered my last posit to you, namely

24 whether you have had time to go through these documents, whether we can --

25 we can proceed with her testimony and possibly reopen for you to put

Page 7910

1 further questions afterwards. What's your position on that?

2 MR. OSTOJIC: It's a twofold question.

3 JUDGE AGIUS: I know that you are a very practical lawyer.

4 MR. OSTOJIC: Thank you, Your Honour. It's a twofold question,

5 quite candidly. One, I have not reviewed the documents; that's why I

6 thought it was important for the Court to know that we received the e-mail

7 at 12.30 and we received the documents moments after 2.00. So I honestly

8 have not reviewed them at all. I looked at the first page. It's more

9 extensive than just a couple of pages. There's details there that I think

10 are necessary for us to develop and look at so I've not looked at it. I

11 would leave it to the Court's pleasure. I think, though, that it's time

12 that we take a position that if these things keep happening that we will

13 not become practical in every instance and allow the Prosecutor, in my

14 view, to manipulate the process and force our hand by giving us or spoon

15 feeding us documents in order to complete a cross-examination and

16 continuously bring witnesses in. If that were true, then we would invite

17 on every occasion other witnesses to come back. After Ms. Stefanie Frease

18 testifies, the intercept operators -- and try to then join the testimony

19 to see if they are consistent or inconsistent. I think it's not practical

20 to do that, but the more practical solution is what was offered by my

21 learned friend, the invitation to suspend her from testifying today.

22 JUDGE AGIUS: He never reiterated that.

23 MR. OSTOJIC: It's in his -- I read his -- I read his e-mail and I

24 don't that I --

25 JUDGE AGIUS: That was in his e-mail to you. He's never stated

Page 7911

1 that in court.

2 So I think we'll -- yes, Mr. Bourgon.

3 MR. BOURGON: Thank you, Mr. President. If I -- if I may add in

4 answer to the same questions but just to give it -- and maybe in a

5 different -- to answer in a different light. First of all, with the

6 nature of the information that we are provided for, without going into the

7 details, these are documents entitled, "Information report." So they are

8 not work product; they really basically give information as a -- as a

9 witness statement, and we have two information reports. With the same --

10 as was put to you by my colleague, Mr. Ostojic, we have not had time to

11 review these documents personally on behalf of my client. We are not in a

12 position to proceed today with further cross-examination.

13 But that brings an issue, Mr. President, that we would like to

14 bring forward. We did file a motion some time ago at the beginning of

15 this case asking for an order from the Trial Chamber to order the

16 Prosecution to give us a list of all documents they have for each

17 witness. We never have received such a list. We have received many

18 indexes with lots of material, but never have we received a list of

19 material for each witness. The Trial Chamber decided to deny the motion,

20 and said that the Prosecution was doing its best. I agree, they're doing

21 their best. But doing their best, not having such a list doesn't allow us

22 to maybe in advance query, are you sure you're not missing something with

23 this witness because of our own investigation. We are not a position to

24 do that.

25 Also, in the Trial Chamber's decision - and I couldn't have -- I

Page 7912

1 was looking for the decision now - it also said that should the

2 Prosecution come up with new documents that there would be a delay given

3 to the Defence or some time given to the Defence to prepare before we can

4 cross-examine such a witness. Thank you, Mr. President.

5 JUDGE AGIUS: I thank you.

6 Any further comments? None.

7 I think we need to have a short break. We need to discuss a

8 little bit amongst ourselves. It should be a short break rather than a

9 long one.

10 JUDGE KWON: If I can put a question to the Prosecution.

11 I think I see a point in Mr. Ostojic's submission. It is related

12 in general to Rule 70(A). If witness is of a kind who's coming from

13 in-house, so called, who worked as an investigator or is working as an

14 investigator or whatever, then the reports, memoranda, or other internal

15 documents may be differently treated from the case of the ordinary

16 witnesses. So for example, internal report or the memoranda produced by

17 or in relation to the witness, can they not be viewed as kind of

18 statements of the witness, previous statements? I wonder whether you

19 followed my point.

20 MR. VANDERPUYE: I was just reading it on the monitor.

21 JUDGE KWON: Thank you.

22 MR. VANDERPUYE: If you would bear with me for just a moment,

23 Your Honour. Thank you

24 [Prosecution counsel confer]

25 JUDGE AGIUS: The question is, does the fact that an investigator

Page 7913

1 becomes a witness make him or her fall out of the parameters of the

2 privilege which is envisaged in Rule 70? This is basically the question

3 that Judge Kwon has put to you.

4 JUDGE KWON: In particular in light of the words which says,

5 "Notwithstanding the provisions of Rule 66 and 67."

6 Please proceed.

7 MR. VANDERPUYE: Well, maybe I can answer it this way: We don't

8 feel that the mere fact that the character of the witness, in other words

9 the capacity in which they are called, necessarily broadens the scope of

10 Rule 70(A). We are disclosing this material because we believe

11 fundamentally that it falls outside the scope of Rule 70(A). And the

12 reason that it falls outside Rule 70(A) is based upon the character of the

13 evidence as opposed to the fact that the witness created it or the

14 capacity in which the witness created it. The material that we've

15 disclosed here bears directly upon the subject matter of this witness's

16 testimony. In other words, every document that she's created for her

17 superior in the capacity of -- in her capacity as an investigator doesn't

18 necessarily warrant disclosure, but warrants disclosure to the extent that

19 it bears materially upon the subject matter of her testimony. That's the

20 reason why we've disclosed it. And I hope that answer your question. I'm

21 sure that you will let me know if it doesn't.

22 JUDGE KWON: In case of 66(A)(ii) disclosure, whether the document

23 has any bearing upon the subject matter or relevance, has nothing to do

24 with the duty of the Prosecutor to disclose those.

25 MR. VANDERPUYE: That's correct. But under Rule 70(A) it seems to

Page 7914

1 me that it creates an exception to the Prosecutor's obligation to

2 disclose.

3 JUDGE KWON: So the crux of the matter is, will lie upon the

4 distinction between the statements and the internal documents, whether a

5 certain document should be viewed as statements of the witness, then that

6 should be disclosed. Whether it has the bearing upon the subject matter

7 or not, has nothing to do with the disclosure.


9 JUDGE KWON: I think I can agree thus far.

10 MR. VANDERPUYE: I think so. My understanding of Rule 70(A),

11 though, is that it is an exception to the disclosure requirements under

12 Rule 66 and that's the reason why it's preceded by the term

13 "notwithstanding," that that obliges -- well, not obliges. But it gives

14 the Prosecutor or the party the opportunity not to disclose the documents

15 even though they would otherwise be required to be disclosed under those

16 Rules. So, yes, I think we agree to that extent.

17 JUDGE KWON: Yes. Thank you.

18 JUDGE AGIUS: I think we need to suspend the sitting.

19 Yes, Mr. Haynes.

20 MR. HAYNES: Can I make a suggestion?


22 MR. HAYNES: Why don't you look at these documents that we've been

23 given? I'm happy for you to. Then you can decide whether those

24 statements -- or mind.

25 JUDGE KWON: I wouldn't mind.

Page 7915

1 JUDGE AGIUS: I wouldn't mind either. You know that it hasn't

2 been the practice, but sometimes that becomes useful. We haven't asked

3 because no one offered and it's also because our practice is not to be

4 the --

5 MR. VANDERPUYE: I think we have some extra copies if the Court

6 would like to see them.

7 JUDGE AGIUS: I think it will help us decide on at least one

8 issue, if to proceed at all today.

9 MR. VANDERPUYE: One, two, three, four, is this all in -- in

10 order?

11 JUDGE AGIUS: Madam Usher, can you please show them to Mr. Haynes

12 so that we have a confirmation that we are talking of the same entire

13 collection of documents. It's not a question of mistrust, please don't --

14 don't misunderstand me. More of a formality than anything else.

15 Yes, Madam Fauveau.

16 MS. FAUVEAU: [Interpretation] Your Honour, I have had the

17 opportunity to look at these documents and I would like to inform the

18 Chamber that there is at least one document amongst the documents that was

19 disclosed to us as a document that falls under the scope of Rule 68. It

20 clearly falls under the scope of that rule, Rule 68.

21 JUDGE AGIUS: I know, but we are going to see the documents.

22 Which of these documents are you referring to, please?

23 MS. FAUVEAU: [Interpretation] I'm referring to the --

24 [In English] Information report submitted, Stefanie Frease,

25 source --

Page 7916

1 [Interpretation] I won't tell you the source. It's an officer

2 from the army of Bosnia and Herzegovina.

3 JUDGE AGIUS: What do you have to say about that, Mr. Vanderpuye,

4 if you can detect -- identify the document Madam Fauveau is referring

5 to?

6 MR. VANDERPUYE: Okay. I'm -- I'm not sure if I have identified

7 the document that my colleague is referring to, and maybe she could be a

8 little bit more precise so I can -- I can see what she's talking about.

9 JUDGE AGIUS: Can we have the date of the document or the first

10 three words or four words of the text?

11 MS. FAUVEAU: [Interpretation] It's a document dated the 24th of

12 April, 1998. There is no ERN number on that document.

13 JUDGE AGIUS: Okay. All right.

14 So as stated we need to suspend the sitting. We will be coming

15 back to you shortly. Thank you.

16 --- Break taken at 2.54 p.m.

17 --- On resuming at 3.35 p.m.

18 JUDGE AGIUS: So, allow me to start from here. We have been

19 informed that while we were deliberating the accused have not had time to

20 leave the courtroom and have their break. So we have already discussed

21 that and we will come to a break soon to allow you to have a short break.

22 I'll try to deal with the various issues that have been raised

23 that, in our opinion, require to be dealt with.

24 First point that was raised by Mr. Ostojic and on which we heard

25 submissions from other Defence teams as well as from Mr. Vanderpuye, which

Page 7917

1 we have taken note of, we have the following: We have noted in particular

2 the statement made by Mr. Vanderpuye, namely, or to wit that further

3 searches are ongoing to ensure that disclosure in relation to this witness

4 is complete.

5 Now, the Trial Chamber cannot fail to point out that failure to

6 disclose material under Rule 66(A)(ii) in a timely fashion can, as has

7 been shown in other cases, lead to undesired and undesirable consequences

8 which include frustration of proceedings and, many a time, extra costs,

9 expenses, for the Tribunal. Because of this, but not only because of

10 this, the Trial Chamber cannot condone this and has no doubt that the

11 material in question should have been disclosed earlier.

12 The Trial Chamber also acknowledges that the disclosure of the

13 material in question at this particular stage of the proceedings, when the

14 witness has not yet finished her testimony, and when cross-examination by

15 almost all the Defence teams is not yet concluded, allows for the rights

16 of the accused to be protected and to be protected in a timely fashion and

17 minimises the frustration of the proceedings.

18 The Trial Chamber agrees further that the late disclosure of the

19 material in question entitles the Defence teams to ask for a suspension of

20 the proceedings in order that they may examine this material and prepare

21 their cross-examination. We are, therefore, prepared to grant any

22 additional -- to grant any additional time as required, accordingly.

23 This will include, of course, the Popovic Defence team, if they

24 wish to further cross-examine the witness.

25 Finally, we see absolutely no merit to the submission of the

Page 7918

1 Beara, Nikolic and Miletic Defence teams to strike the testimony of the

2 witness. Our order is to proceed with her testimony subject to what we

3 have decided before.

4 What I suggest now is we will have a 25-minute break so that

5 the -- or 20-minute break so that the accused can have time to relax a

6 little bit - 20 minutes - after which we will call on each one of you to

7 see whether you wish to postpone your cross-examination until some other

8 time or whether you wish to proceed today and maybe come back with further

9 questions at a later stage. This we will leave in your hands and we'll

10 deal with it after the break. Thank you.

11 Yes, Mr. Bourgon.

12 MR. BOURGON: Mr. President, maybe I suggest if we could ...

13 [Trial Chamber confers]

14 JUDGE AGIUS: Yes, one moment. In addition to what I said,

15 perhaps if there is any of the Defence teams, if there is any of the

16 Defence teams that can give us feedback now before the break, then perhaps

17 it will be more useful for us to be able to prepare better for the

18 remaining time that we have today.

19 Yes, I noticed you standing, Mr. Bourgon.

20 MR. BOURGON: Thank you, Mr. President. I was just about to

21 suggest that maybe the Defence teams, we could provide you right away with

22 our submissions in this regard so that we can address maybe what we do if

23 we cannot proceed today. On behalf of the Accused Drago Nikolic we will

24 not be prepared to continue cross-examination today but we could be ready

25 the first opportunity tomorrow. Thank you, Mr. President.

Page 7919

1 JUDGE AGIUS: Thank you.

2 Can I start with you, Mr. Ostojic.

3 MR. OSTOJIC: Your Honour, we've tried to look at the documents

4 and I haven't had a chance obviously to review them in detail. We would

5 prefer not to proceed. I mean, we are ready, as I think the Court noted

6 yesterday, to ask further questions of her. They might end up being

7 inconsistent with some of the things she may or may not have said. But I

8 think it would be more practical to not proceed now, to suspend it for a

9 matter of days, whatever the Court's desire is, and bring her back after

10 we've had an opportunity to digest the material.

11 JUDGE AGIUS: I thank you, Mr. Ostojic.

12 Does the Borovcanin Defence team wish to address the Chamber?

13 MR. STOJANOVIC: [Interpretation] Your Honour, we've announced that

14 we will not ask any questions of this witness, and the discussion of today

15 does not change our position in this respect.

16 JUDGE AGIUS: All right. I thank you. I-- that's why I wanted to

17 ask you in any case, because it could have changed your position.

18 Yes, Mr. Ostojic.

19 MR. OSTOJIC: Just -- we're not getting the transcript on the

20 screen, so we're trying to follow it, both.

21 JUDGE AGIUS: I am having it. So are my colleagues.

22 MR. OSTOJIC: Mine stops on page 22, line 8, in the middle of

23 Mr. Bourgon's discussion.

24 JUDGE AGIUS: Yes, can -- can we proceed and you check on -- the

25 transcript on the other monitor, maybe? And then we'll soon be having a

Page 7920

1 break and we will look into the matter.

2 Madam Fauveau.

3 MS. FAUVEAU: [Interpretation] Mr. President, I would rather

4 consult the documents and cross-examine the witness later tomorrow. We

5 would be ready tomorrow for this cross-examination.

6 JUDGE AGIUS: I thank you.

7 Mr. Josse.

8 MR. JOSSE: Your Honour, I would be lying if I was to suggest to

9 the Court that these documents are going to make any profound difference

10 to my cross-examination. I am confident they are not going to make any

11 difference; however, I am anxious to maintain our position of, in effect,

12 going after my learned friends. It was something we had agreed with them

13 and it is a position we would like to maintain. I am bound to say the

14 cross-examination will be about 20 minutes in total.

15 JUDGE AGIUS: I thank you, and I thank you also for the approach

16 you take, which I can assure you the Trial Chamber will respect because --

17 yeah, anyway, I will not say anything further.

18 Mr. Haynes.

19 MR. HAYNES: As I think the Chamber knows, we don't propose to

20 cross-examine Ms. Frease.

21 JUDGE AGIUS: But your position remains the same?

22 MR. HAYNES: Yes.

23 JUDGE AGIUS: Thank you. So I think we'll have a break. But

24 before we do so, I would like to know what do you propose to do if we

25 suspend the testimony of Ms. Frease until a later time?

Page 7921

1 MR. NICHOLLS: That's what I was going to raise, Your Honours.

2 PW-104 is in the waiting-room and he's been there for a couple of hours.

3 So if he is not going to start today, I would like to release him rather

4 than keep him waiting. I -- I have -- I haven't personally received it,

5 but I have been told there was an e-mail from Mr. Meek that strenuously

6 objected to him going forward today, and in all fairness to the Defence,

7 they expected a delay because they thought that Ms. Frease would continue,

8 and I -- I believe Ms. Fauveau also said that she did not want any other

9 witnesses going forward. So I think the Defence position is that they are

10 not ready for another witness, and -- we are ready, but if that's the case

11 and as I say, I can understand it, then I would rather release him as soon

12 as possible rather than hold him longer in that room.

13 JUDGE AGIUS: How long is his testimony expected to last in

14 chief?

15 MR. NICHOLLS: It's difficult for me to say exactly, but I think

16 about an hour or around a session. An hour, depending on how it goes. Not

17 too long. Not hours and hours, so they would reach him today. But I

18 think their position was that they did not want him to start because

19 they're just not prepared for him.

20 JUDGE AGIUS: I see two possible options, without committing, of

21 course, the Trial Chamber. If PW-104 starts today, will he be

22 cross-examined -- not today, but tomorrow, that means Ms. Frease's

23 suspension of her testimony will out -- last a good part of tomorrow or

24 maybe the entire of tomorrow. Or if we decide to proceed with PW-104's

25 testimony in chief only today, does that mean, or does that entail that

Page 7922

1 he will return for cross-examination when the cross-examination of

2 Ms. Frease has been concluded? I would like to hear comments or --

3 on this.

4 MR. NICHOLLS: That's a difficulty I would like to avoid. Both --

5 mainly for the witness's sake, but also for logistical reasons. Without

6 getting into it in open session, the witness is quite nervous, or was when

7 I saw him a couple days ago, does not feel particularly good, and I would

8 rather not prolong and put gaps in his testimony in requiring him to come

9 back at some other time. So for that reason -- just prefer that for the

10 witness's sake I would rather start and continue and have him finish in

11 one block and have it over with, but otherwise, depending on the Court's

12 decision, it would impact on when he is available. I can't remember the

13 estimate, but I think there is a significant amount of cross-examination

14 anticipated.

15 JUDGE AGIUS: I think five hours. Five hours, and there are still

16 about another five hours left for Stefanie Frease.

17 So I think we will have a break now. We need to discuss further.

18 [Trial Chamber confers]

19 JUDGE AGIUS: Would it be acceptable to the Defence teams if you

20 start the cross-examination of PW-104 tomorrow? That would mean you will

21 acquire more time in relation to Stefanie Frease. Yeah, yeah, we'll hear

22 the direct today, obviously. And then we continue -- we start -- there

23 won't be any cross-examinations today, unless someone wishes to go ahead.

24 And we'll have the cross-examinations tomorrow so that we can send this

25 man home before the weekend. Agreed? Agreed? All right.

Page 7923

1 I think -- so we will have the 20-minute break that we promised

2 you, and we'll come back -- first I need to explain to Ms. Frease, please.

3 So ask her to show in -- for her to come in for a short explanation.

4 Yeah, but they cannot explain to her. You will? All right.

5 Okay. Thank you.

6 So we will have PW-104. Thank you.

7 MR. BOURGON: Sorry, Mr. President. If Ms. -- if Ms. Frease is

8 not going to come back in the courtroom, I would like to make sure that

9 because we have new documents, that there will not be any communications

10 between the Prosecution and the witness.

11 JUDGE AGIUS: Okay. Then bring her at the beginning of the next

12 session and I will explain to her. We can bring her right now?

13 JUDGE KWON: Later.

14 --- Recess taken at 3.51 p.m.

15 --- On resuming at 4.16 p.m.

16 [The witness entered court]


18 JUDGE AGIUS: Good afternoon to you, Ms. Frease.

19 THE WITNESS: Good afternoon.

20 JUDGE AGIUS: I regret to inform you that we will not proceed with

21 your testimony today.


23 JUDGE AGIUS: And at least for the most part of tomorrow. There

24 has arisen a procedural matter that we had to deal with. And because of

25 that we are going to proceed with the testimony of someone else and then

Page 7924

1 continue the cross-examinations at a -- your cross-examination afterwards.

2 In the meantime it's my responsibility to draw your attention that you are

3 still in the process of testifying, and that you are not to discuss or

4 allow the Prosecution to discuss with you matters related to your -- to

5 your testimony.


7 JUDGE AGIUS: I suppose you know the procedure and that should be

8 clear enough for you. I also wanted to apologise to you for having kept

9 you waiting for over two hours, not knowing what's happening. I suppose

10 in due course you will become aware of the problems that we have had, and

11 the reason why we had to postpone your cross-examination.

12 THE WITNESS: Thank you.

13 JUDGE AGIUS: Okay. Thank you.

14 [The witness withdrew]

15 JUDGE AGIUS: Mr. Meek, I understand you wish to address the

16 Chamber before the next witness is ushered in.

17 MR. MEEK: Yes, Your Honour. With all due respect, we would like

18 to make a record and preserve the record. We have a motion to bar the

19 testimony of this witness on several grounds.

20 JUDGE AGIUS: This witness?

21 MR. MEEK: This upcoming witness, 104. Your Honour, this

22 interview of this witness - if you don't know this, it will come out if

23 you don't grant this motion - the interview conducted with this witness

24 breached all of the OTP's very own internal procedures in conducting

25 interviews. In every interview that is tape-recorded they always say when

Page 7925

1 they take a break, "We won't talk about the case." We come back in --

2 they go on the record and they say, "We haven't talked about the case."

3 That's their internal policy. In this case the interviewer, the attorney

4 and the investigator took a break, we don't know what happened outside

5 that break, it's not on the record. The witness was brought back in, and

6 then all of the sudden the witness was asked questions changing his

7 prior -- previous testimony, the statement he had previously given. We

8 don't know what happened with that. We do know that this witness had to

9 have been known by the OTP at least as early as 2000, because that was

10 when the Zvornik Brigade documents were received.

11 Again, we have no information whatsoever as to what was said

12 outside the interview, the technical interview, violating all the rules of

13 the OTP. We ask the testimony be barred on that grounds. If not,

14 Your Honours, we ask that this witness must be read his rights, that he

15 does have a right to a lawyer, et cetera.

16 Further, Your Honours, we would ask you to -- we brought this up

17 before --

18 JUDGE AGIUS: What -- what right are you referring to? That --

19 as -- as --

20 MR. MEEK: His rights as a suspect, Your Honour.

21 JUDGE AGIUS: I see. Then the right as a suspect that does not

22 entitle him to have a lawyer here present while he is giving testimony.

23 MR. MEEK: No. No, no.

24 JUDGE AGIUS: That's what we have on the transcript.

25 MR. MEEK: The reason, Judge --

Page 7926

1 JUDGE AGIUS: "If not, Your Honour, we ask that this witness must

2 be read his rights that he does have a right to a lawyer," et cetera. Of

3 course if we ask that we caution him in terms of Rule 90, we will do so.

4 We will do that with every -- every witness that becomes necessary, when

5 it becomes necessary.

6 MR. MEEK: That's what we request, Your Honour.


8 MR. MEEK: Secondly, Your Honour, we ask you -- we have raised

9 this before, and for the record we're going to raise it again. We ask

10 this Trial Chamber to effectively entertain a judicial estoppel. The

11 Prosecutors in this case are taking an inconsistent position from a former

12 proceeding, and that is Blagojevic and Jokic. This inconsistency, we

13 believe, undermines the fairness of the trial and violates our client's

14 right to judicial process, fundamentally violating his right to a fair

15 trial. In Blagojevic and Jokic, the same Prosecution team with the same

16 facts said security was not involved. They didn't hold a candle, they had

17 no command, no nothing. Now we have just the opposite. We have an

18 inconsistent position, it's inconsistent, Judge, and basically the bottom

19 line, and we're not saying necessarily bad faith even has to come in the

20 picture. The bad faith shouldn't be a condition. The reason we ask for

21 judicial estoppel is because if you don't, Judge, it's just going to

22 corrupt the judicial process. It's not right. They can't go in one case,

23 same facts, and say one thing, and then come along here in this case and

24 say something completely inconsistent. So on those two grounds, Judge, we

25 ask that this witness's testimony be barred.

Page 7927

1 JUDGE AGIUS: I thank you, Mr. Meek.

2 Who is going to respond to that?

3 Mr. McCloskey.

4 MR. McCLOSKEY: If I can respond to the -- I think what he's

5 called the estoppel theory first, is it's an issue that involves the

6 Blagojevic case and I will respond to it briefly. Something of this kind

7 of potential, import, and significance based on the record of a previous

8 case really should not be -- again, I am a broken record on this, it

9 should not be brought up at the last minute like this, though -- but I can

10 respond. First of all, the simplest response is that there is no

11 inconsistency. I, nor the Prosecution in the previous case, no one ever

12 suggested security was not involved. Security has always been the --

13 the -- in the theme of -- in the theme and theory of the case has always

14 been the people that were on the ground coordinating, organising, and

15 facilitating the -- the detention, the transportation, and the execution

16 of this case.

17 Now, as I have been in other cases involving commanders,

18 General Krstic, Blagojevic, Obrenovic, the Defences of those commanders

19 has always been: These security officers have done this on their own

20 acting under their own chain of command outside of my authority. And my

21 arguments have been very briefly that a security officer is not a

22 commander. A security officer is only empowered to act under the orders

23 of his commander. And therefore, I think Mr. Ostojic's favourite quote of

24 mine is that Beara is an empty vessel, which is true, until he is filled

25 with the orders of his commander, General Mladic, and then he takes on his

Page 7928

1 role as a security officer, dealing with the military police, dealing with

2 prisoners. And this has always been the case, and we have never suggested

3 security officers are not involved.

4 I took a plea from Momir Nikolic who admitted his guilt in --

5 in -- in this case, and he was a security officer, and his testimony in

6 this courtroom as to the involvement of other security officers. I mean,

7 I don't know where they're getting this. It can be dealt with fairly

8 quickly, but again these sorts of broad claims like this, I think it would

9 be better had they -- they been something that we have a little bit of

10 notice of. I can respond to this one easily, as I can with most of them.

11 But I think in the future it would be better if we had a little more

12 preparation for this sort of thing.

13 JUDGE AGIUS: What about the first point raised by Mr. Meek in

14 relation to the statement of the witness.

15 MR. NICHOLLS: I can respond to that, Your Honour. Mr. Meek's

16 representations are completely inaccurate in several respects. This was a

17 witness interview held in -- in Zvornik. At one point we did take a

18 break, and the witness answered some questions off of the tape, because he

19 was not willing to go on, on tape. The -- an information report was

20 written up immediately that night, explaining exactly what happened and

21 why. The witness at no time changed any of his testimony, and there is a

22 record of exactly what happened during the break.

23 In addition, the next day -- not immediately after, but two

24 days -- the second day following the initial interview, I met the witness

25 again somewhere else and went on tape in order to put on tape, on the

Page 7929

1 record, exactly what had happened. Now, there is no inconsistency, I

2 would suggest, in anything the witness has said. What the witness said

3 before we went off tape, in answer to some questions that I can't specify

4 here in open session, is that I can't speak about that. I can't talk

5 about that. I'm not willing to talk about that. I have that interview in

6 Sanction. I'm very happy to play that for Your Honours so Your Honours

7 can hear the witness's voice and hear the way he felt at that time. They

8 can cross-examine the witness about what happened, and we didn't violate

9 any policy. If a witness at this point is unable or scared to go on and

10 then we -- we memoralise it in writing as a way any written statement

11 would be, there is no prejudice whatsoever. And, as I said, I did

12 everything I could to make it very clear. I wrote an information report

13 immediately saying why we had taken the break and what happened during the

14 break. And then I met the witness again to confirm on tape that that

15 information report was accurate. And they have all of that, they've had

16 it for three months.

17 Now, if he may be saying again well, I don't trust you, I think

18 you lied in your information report, that's another thing. But then

19 that's something he can follow up in his cross-examination of the witness.

20 But certainly none of it would rise to the extraordinary remedy of barring

21 probative evidence. And I think when the witness testifies you will see

22 that he was not inconsistent and I will move to put in the interview, the

23 information report and the subsequent interview in order to rebut these

24 challenges which have been made against me.

25 JUDGE AGIUS: Before you sit down, Mr. Nicholls, do you wish to

Page 7930

1 take a position about the third proposition of the Beara Defence team,

2 namely that we should caution this witness?

3 MR. NICHOLLS: No, I don't -- I don't object to a caution. I --

4 this is a -- this was a witness, not a suspect interview. I don't -- I

5 don't think a caution is strictly necessary in this case. I don't see

6 where they see it in his interview, because the substance, without saying

7 what I can -- can we go into private session for one moment?

8 JUDGE AGIUS: Certainly. Let's go into private session for a

9 short while.

10 [Private session]

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 7931

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 [Open session]

6 JUDGE AGIUS: So we are back in open session. We have three

7 issues that we have to decide upon that have been raised by Mr. Meek and

8 responded to by Mr. McCloskey and Mr. Nicholls respectively. We will take

9 them one by one. The first one is to strike off the statement of this

10 witness on the basis that it was irregularly taken, to wit in

11 contravention of the internal rules of the Office of the Prosecutor. We

12 have heard the parties' submissions on the issue. We believe this matter

13 can be dealt with by the parties either during examination-in-chief or

14 cross-examination or both. And we would then be in a position to evaluate

15 better the suggestion or the submission of the Beara Defence team

16 accordingly.

17 The second submission as regards estoppel, we do not see a nexus

18 with the testimony of this particular witness a priori, so there we do not

19 see a reason why the submission that you have made, Mr. Meek, and which

20 you can proceed with in the course of this trial, as we go along, should

21 serve as a reason why this witness in particular should come into course

22 and bring in turn an estoppel as we know it.

23 The third matter that you raised is whether we should grant -- we

24 should caution the witness before he starts giving evidence as to his

25 position or rights under Rule 90 out of an abundance of caution, not

Page 7932

1 knowing exactly the details because we are not provided with the statement

2 beforehand, we will do so after he has been sworn in. We will caution him

3 accordingly.

4 Any further matters you would like to raise in relation to this

5 witness before he comes in?

6 Yes, Mr. Bourgon.

7 MR. BOURGON: Thank you, Mr. President. I just like to -- I know

8 my colleague requested that the witness be given a caution or rights. But

9 I think what we are discussing here, when we look under Rule 90, I don't

10 think it should be regarded as a caution. In other cases, in many

11 respects, whenever a witness comes in and one of the parties believes it

12 is a good procedure to remind the witness that he may refuse to answer and

13 then that he may be forced to answer by the Trial Chamber with the

14 consequence that whatever he says could not be used in other proceedings,

15 some Trial Chambers have used this in the past in giving this type of

16 information to all witnesses appearing before them. So I would like to

17 avoid that we consider this being a caution or a legal caution in any

18 way. It's information we give to witnesses about the procedure and how

19 they will testify. Now, we will recall with the last witness I made a

20 request under Rule 91 Alpha about the witness being reminded about his

21 right to tell the truth. Now, that's -- this for me has a legal

22 connotation, but the first one not. Thank you, Mr. President.

23 JUDGE AGIUS: I prefer not to comment on that and proceed and not

24 waste time on this.

25 Let's bring the witness in, please.

Page 7933

1 [The witness entered court]

2 JUDGE AGIUS: Good afternoon to you, sir. And welcome to this

3 Tribunal. We are about to start with your testimony. Madam Usher is

4 going to hand to you the text of a solemn declaration that you are

5 required to make by our Rules, namely to testify the truth. Please read

6 it out aloud, and that will be your undertaking with us.

7 THE WITNESS: [Interpretation] I solemnly declare that I will speak

8 the truth, the whole truth, and nothing but the truth.


10 [Witness answered through interpreter]

11 JUDGE AGIUS: I thank you, sir. Please make yourself comfortable.

12 We can draw the curtains up. Let me explain to you briefly a few matters.

13 Mr. Nicholls will be putting some questions to you. We have been asked to

14 grant you some protective measures, namely the use of a pseudonym and also

15 facial distortion. I trust these have been explained to you. We have

16 granted these provisional -- these protective measures and we want to hear

17 from you whether they are to your satisfaction.

18 THE WITNESS: [Interpretation] Yes.

19 JUDGE AGIUS: Also, at some points in time during your testimony,

20 we will go in private session, the whole exercise being to try our best to

21 hide your identity from the public.

22 Mr. Nicholls.

23 MR. NICHOLLS: Thank you, Your Honour. And I will say that quite

24 a bit of my direct I will be requesting private session. Because of the

25 testimony.

Page 7934

1 First thing, could I hand --

2 JUDGE AGIUS: Just before you start.

3 Now, I don't know what the substance of your testimony is going to

4 be, sir. But it is my duty to explain to you a right that you have not to

5 incriminate yourself. This is a limited right; it's not an absolute right

6 in our Tribunal. What we have laid down in our rules is that a witness

7 may object to making a statement which might tend to incriminate him. So

8 you have a right, you would have a right to object to answer one or more

9 questions that are put to you. If you do so, however, we have the

10 discretion to compel you to answer the question. We may exempt you from

11 answering the question, but we can ask you to answer it. If we compel you

12 to answer a question, you have a guarantee under our Rules that your

13 testimony and reply to those questions will not be used as evidence in a

14 subsequent possible prosecution against you for any offence except if we

15 catch you giving false testimony. Do you understand the import of what I

16 have explained to you?

17 THE WITNESS: [Interpretation] Yes.

18 JUDGE AGIUS: All right. So I think we can safely proceed now.

19 Mr. Nicholls, he's all yours.

20 MR. NICHOLLS: Thank you, Your Honours.

21 First, if I could hand the witness - excuse me - the pseudonym

22 sheet which is P02457.

23 Examination by Mr. Nicholls:

24 Q. Sir, I will ask you to please look at that, read it quietly to

25 yourself, don't read the name on it out loud, but could you please confirm

Page 7935

1 to Their Honours that your name is printed on that sheet of paper?

2 A. Yes.

3 MR. NICHOLLS: Could that be shown to my colleagues.

4 Q. And the other thing I want to do, sir, is apologise to you, that

5 you have been waiting for, I think, well over two hours in a little room.

6 I want you to know we were -- as I told you, that sometimes happens when

7 the lawyers are arguing about matters that have nothing to do the next

8 witness coming up, it had nothing really to do with your testimony. For

9 the most part we had problems talking about an earlier witness, and I'm

10 sorry that you had to wait so long.

11 MR. NICHOLLS: Could we go into private session, please, for the

12 preliminary stuff.

13 JUDGE AGIUS: Certainly. Let's go into private session, please.

14 [Private session]

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 7936











11 Pages 7936-7939 redacted. Private session















Page 7940

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 [Open session]

11 JUDGE AGIUS: We are in open session now. Thank you.


13 Q. At this time period that I have identified for you, can you tell

14 me about any contact you had with officers from the Zvornik Brigade? We

15 are now in open session, Witness.

16 A. Yes.

17 Q. Can you tell me if you had any contact, any meetings with members

18 of the Zvornik Brigade or other VRS officers at this time, directly before

19 you did what you have described doing in private session?

20 A. Both with the officers of the Zvornik Brigade as well as with some

21 other officers. I did have contacts with them.

22 Q. Okay. And can you tell me where that occurred, which physical

23 location?

24 A. With the Zvornik Brigade officers, I had contacts in my own office

25 in the municipality building. As for the other officers that I had

Page 7941

1 contacts with, those took place in the barracks of the Zvornik Brigade.

2 Q. Okay. What I'm asking you about is the contact, the meeting you

3 had in the barracks of the Zvornik Brigade at this time, right after the

4 fall of Srebrenica. Tell me who was present at this meeting.

5 A. I can't remember who was present, which officers of the Zvornik

6 Brigade were present. I know that I was there, as well as the officer who

7 introduced himself as Colonel Beara.

8 Q. Now, this officer who -- how did you come to be at this meeting at

9 the Zvornik Brigade where an officer introduced himself as Colonel Beara,

10 why did you go to the Zvornik Brigade to attend this meeting?

11 A. I went to the Zvornik Brigade every time I was invited there. On

12 that particular occasion I had been invited but I can't remember who

13 invited me.

14 Q. Okay. If you remember, approximately what time of day was it when

15 you were -- when Colonel Beara introduced himself to you?

16 A. No, I can't remember.

17 Q. In your own words, I want you to describe to me and to

18 Their Honours exactly what took place during this meeting at the

19 Zvornik Brigade headquarters, and in particular what you remember

20 Colonel Beara saying. Take your time, think carefully, and just tell me

21 what was said.

22 A. It was not a meeting with an agenda, a protocol or meeting. It

23 looked more like a briefing; we were all standing, we never sat down. As

24 I arrived in the barracks I asked whether Colonel Pandurevic was there,

25 and I was told that he wasn't. I went into a room where I was met by

Page 7942

1 Colonel Beara, and he delivered a brief speech, a monologue which went

2 like this: "We have a lot of prisoners and it is very hard for us to

3 control them. They are at various locations in the Zvornik municipality.

4 We have to get rid of them. I expect assistance from the municipality."

5 I was surprised. I didn't say anything. He then said that he was

6 in command of the barracks and that I should obey his orders. That was

7 more or less that.

8 Q. And specifically when Colonel Beara said we have to get rid of

9 these prisoners, how did he say they were going to get rid of them?

10 A. No.

11 Q. Let me ask you - think carefully - what did Beara say was going to

12 happen to the prisoners?

13 MR. MEEK: Your Honour.

14 JUDGE AGIUS: Yes, Mr. Meek.

15 MR. MEEK: This question has been asked and answered two times

16 now, and I don't understand if the Prosecutor doesn't like the answer, but

17 this is becoming redundant. This is the second time this question has

18 been asked and answered and I object.

19 JUDGE AGIUS: Do you have -- do you wish to respond to that,

20 Mr. Nicholls?

21 MR. NICHOLLS: Yes, the -- the answer before was get -- they had

22 to get rid of the prisoners. I want to make sure there is no problem with

23 the translation that's -- and that he cannot give a more complete answer

24 because he, in the past has explained that in more detail.

25 MR. MEEK: First off, Judge, first off, Judge, I object -- I

Page 7943

1 really do object to him giving a talking argument, a speaking argument in

2 front of this witness while the witness has got headphones on.

3 JUDGE AGIUS: Yes, Mr. Meek.

4 Stop, Mr. Nicholls.

5 Let's discuss -- let's confer.

6 [Trial Chamber confers]

7 JUDGE AGIUS: Yes. Our position is the following: If you look at

8 page 45, line 5, please. The question that Mr. Nicholls put to the

9 witness was, "And specifically when Colonel Beara said we have to get rid

10 of those -- these prisoners, how did he say they were going to get rid of

11 them?" And the answer that we have in the transcript is "no." Which in

12 itself is almost unintelligible because it does not answer the question.

13 Then we have a second question, which our opinion is that it

14 shouldn't be put. What should -- the way we should proceed is to ask the

15 same question that you asked before to which he answered "no" and the

16 witness will explain exactly what he meant to say, because "no" as such to

17 that question doesn't make sense. It doesn't follow the question.

18 Because the question was, how did he say they were going to get rid of

19 them.

20 So we stick to that question, no further questions on -- on the --

21 on the issue. He needs to explain his -- his answer. Or complete it

22 anyway. Because I don't know whether it's a question of a wrong

23 transcript or translation or whatever.

24 So, Witness, let me take you in my hands on this. Mr. Nicholls

25 asked you: "When Colonel Beara said, 'We have to get rid of these

Page 7944

1 prisoners,' how did he say they were going to get rid of them?"

2 THE WITNESS: [Interpretation] The colonel said, "We have to get

3 rid of them."

4 JUDGE AGIUS: Yeah, but --

5 THE WITNESS: [Interpretation] And he also said that he expected

6 our help in taking care of that.

7 JUDGE AGIUS: But the question was --

8 THE WITNESS: [Interpretation] In other words, in burying the

9 bodies.

10 JUDGE AGIUS: Thank you.

11 He's back in your hands, Mr. Nicholls.


13 Q. Did Colonel Beara say who gave him the order to get rid of the

14 prisoners in such a way that all of their bodies would need to be buried?

15 Did he tell you who gave him that order?

16 A. Yes, he said that that order was from two presidents. I did not

17 ask him. I did not ask any questions.

18 MR. NICHOLLS: Can we go into private session, please.

19 JUDGE AGIUS: By all means. Let's go into private session,

20 please.

21 [Private session]

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 7945











11 Pages 7945-7946 redacted. Private session















Page 7947

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 [Open session]

16 JUDGE AGIUS: All right. For the record, the -- Mr. Nicholls for

17 the Prosecution has concluded his examination-in-chief. One moment, we

18 need to confer.

19 [Trial Chamber confers]

20 JUDGE AGIUS: Just in case, is there any of the Defence teams that

21 is in a position and wishes to start the cross-examination of the witness

22 today?

23 Madam Fauveau.

24 MS. FAUVEAU: [Interpretation] No, Your Honour, but I'd like to

25 inform you that we will have no questions for the witness. The Defence of

Page 7948

1 General Miletic won't have any questions to put to this witness.

2 JUDGE AGIUS: I thank you so much, Madam Fauveau.

3 So I saw you switching on and then switching off your mic. All

4 right.

5 So, sir, unfortunately the way things happened today, which have

6 got nothing to do -- to deal with you, they were procedural issues related

7 to something completely different, has made it necessary to start with

8 your witness [sic] today, which was unexpected. None of the Defence teams

9 expected us to start with your witness [sic] today. We were supposed to

10 start with it tomorrow. Or perhaps even -- even later. The result is

11 that we have a responsibility towards everyone here, Prosecution and

12 Defence, and we will need to give the Defence time in order to prepare for

13 their cross-examination, which will happen tomorrow. So tomorrow we hope

14 to be able to finish with your testimony. It should be possible. And

15 after that you will be free to go home. I hope you understand, and that

16 you understand and accept this.

17 Okay. I take it that he has understood what I said.

18 Sir, we'll see you again tomorrow afternoon at 2.15, and we hope

19 to conclude your testimony then.

20 [The witness withdrew]

21 JUDGE AGIUS: Now, Mr. Nicholls, we'll try to utilise some of the

22 time profitably. You will recall Witness 157, if I've got the number

23 right. Now, his testimony or his previous statement was admitted pursuant

24 to Rule 92 bis or -- I think it was 92 bis, together with a series of

25 documents, and that was part of our decision, date of which escapes me at

Page 7949

1 the moment.

2 There were, however -- and in our decision we had intimated this,

3 that there were other documents that were not introduced with that witness

4 in that other case, but had been made use of in the course of his

5 testimony. Those couldn't be introduced in the records of this case,

6 pursuant to Rule 92 bis, because they weren't being offered. We had

7 pointed this out to you, and it must have left an impression on you

8 because later on you provided everyone, including ourselves, with a

9 dossier containing these few documents. Leaving them in a state of limbo,

10 we don't know whether you are tendering them or whether you are not

11 tendering them. I think I can be more precise by going straight to the

12 details, if you require me to.

13 MR. NICHOLLS: I think I can respond, Your Honour. I'm prepared

14 to. What I provided the Court on 16 of February, and I believe this is a

15 92 ter witness, I stand to be corrected, but was a chart showing the

16 exhibits which had gone in with his testimony in Krstic and the

17 corresponding exhibits and 65 ter numbers for the exhibits which had been

18 tendered either through him or through other witnesses in this case.

19 What it boils down to is there were two exhibits in Krstic which

20 have not been introduced in this case with 65 ter numbers; those were P331

21 and P336, the Krstic numbers. Those were the only two at issue, and as

22 Your Honours rightly pointed out, it might be difficult to follow the

23 transcript without having those exhibits, because you wouldn't know what

24 was being referred to.

25 Very briefly, the reason this arose is because all of the other 92

Page 7950

1 ter witnesses started out at 92 bis and therefore all of their transcripts

2 had been -- all of their exhibits from the previous testimony had been put

3 in as part of the package. This one was converted at a later date in an

4 effort to save time.

5 As regards P331 and 336, I would tender those, but only for the --

6 for the limited purpose as an aide to follow in the transcript, not for

7 the substance of those exhibits. Now, in fact, I checked the transcript,

8 and -- and all the witness in his Krstic testimony says is, "Yes, that's

9 an intercept," and he gives the date. He authenticates these two

10 documents which we have not put in, in our case.

11 There is a specific procedure we followed for putting in

12 intercepts in this case and for tendering them subject that they would be

13 admitted later after we finish with Ms. Frease. So I am -- and I

14 apologise for not being clearer in the filing on the 16th of February.

15 But those two exhibits are being tendered for the limited purpose of

16 allowing the Trial Chamber to follow exactly what was being discussed in

17 the Krstic testimony. I hope that's reasonably clear.

18 JUDGE AGIUS: Yes. Thank you. Does anyone of the Defence teams

19 wish to comment on this? We hear none. I think we can close it there,

20 leave it there. One moment. I will make a note of it.

21 So the position is we have to adjourn today for reasons well known

22 to you already. We will take up this witness tomorrow again. Yes, Mr.

23 Nicholls.

24 MR. NICHOLLS: I have one unrelated point I could raise, Your

25 Honours. During the testimony of PW-101, if you will recall Mr. Bourgon

Page 7951

1 used in his cross-examination statements of unknown persons -- or not

2 statements, I don't know if they were statements, notes, whatever, but

3 he -- information from unknown persons that are unknown to me, perhaps

4 unknown to the Court. And the -- the reason I think given was that there

5 was going to be a request for protective measures or something like that.

6 So, as I recall, Your Honours took that under advisement and I wondered if

7 that's something we could discuss, because I'm still very eager to know

8 who said those things.

9 JUDGE AGIUS: All right. We have of course been discussing that,

10 and you can't even imagine at what lengths. And we will continue

11 discussing amongst ourselves that issue and as it relates to other issues,

12 and our intention was precisely to come back to you to give you a

13 direction on how this and such like incidents in the future will be

14 regulated and how you have to regulate yourselves. So expect us to come

15 forth.

16 What comes as a surprise is that you wish to address us on the

17 merit of -- of -- because, as I remember, at the time you did make some --

18 some submissions and even acknowledged some matters like you don't want,

19 and you do not pretend to have this and that from -- from Mr. Bourgon. So

20 we were acting under the assumption that this matter had been dealt with

21 by you. But of course if you wish, and anyone else for that matter, from

22 the Defence teams, to make submissions on this, we can meet in 15 minutes'

23 time or 20 minutes' time and -- or now, and have submissions.

24 Yes, Mr. Josse.

25 MR. JOSSE: Your Honour, if Mr. Bourgon will excuse me, at the

Page 7952

1 time that my learned friend Mr. Bourgon and my learned friend Mr. Nicholls

2 were having this argument in front of Your Honours, I thought of

3 intervening but chose not to because it seemed to me that it was really a

4 matter between them and at that time it wouldn't be appropriate. It's of

5 course a few days now, but I remember one thought that crossed my mind in

6 relation to what Mr. Nicholls was saying is where in the Rules was he

7 saying that it was incumbent on the Defence to provide the material that

8 he was inviting Mr. Bourgon to provide? And perhaps I could raise that

9 issue now.

10 One other thing, and that's this: It is a matter that may be of

11 concern to other members of the Defence bar, as well as clearly of concern

12 to the Prosecution. If the Chamber can in some way guide us as to what is

13 going through the Chamber's minds, then that might be of real help in

14 submissions that we might want to make. I think the point I'm trying to

15 make is it is not just a matter of interest to Mr. Bourgon, it's of

16 interest to many of us.

17 JUDGE AGIUS: And I couldn't agree more, Mr. Josse, and I thank

18 you so much for that intervention, because more or less it reflects the

19 concerns that we have. The feeling actually that we have, that generally

20 speaking, let me not be particular, there is a need for some guidance, and

21 what we had in mind is to provide you with that guidance. Now we --

22 [Trial Chamber confers]

23 JUDGE AGIUS: As I said earlier on, we attach to these issues

24 great importance, and, since the approach has varied from one Defence team

25 to the other, we became convinced all the more that we need to direct you

Page 7953

1 on this for the duration of the rest of -- of the case. So we'll be

2 coming back to you, but we would like to know, because we were labouring

3 under a different presumption, whether any one of you would either like to

4 make oral submissions or written submissions. We don't have a motion as

5 such. In other words, we -- we had a submission made by Mr. Bourgon at

6 some point in time to which you responded, and to which he again

7 responded, and after which, or in the wake of which we told you we'll come

8 back to you on this and give you a more or less direction. But in the

9 course of our discussions, of course we realised that it is -- you broaden

10 it up and it touches on what one should put to a -- a witness and -- and

11 in cross-examination and in what manner. So the two are related and our

12 intention was to come back to you on everything.

13 If there are -- yes, Mr. Bourgon.

14 MR. BOURGON: Thank you, Mr. President. I'd like to join with my

15 colleague has said just, Mr. Josse, concerning what exactly the Trial

16 Chamber is looking for in terms of submissions. As far as I am concerned,

17 during the cross-examination of this particular witness I mentioned the

18 fact, and I will simply say over what I said then, which is if I have

19 information in my possession, it must be put to the witness and I can do

20 so as long as I have a reasonable basis, I have a foundation to put some

21 information that exists, I have a duty to put it to the witness. And I

22 also said that I do not feel any obligation whatsoever to inform the

23 Prosecution of this information unless I have a document that I intend to

24 use during cross-examination. And that was the extent of my submission.

25 Now, I see that from what Mr. President, you just mentioned, about

Page 7954

1 how information or questions should be put to the witness during

2 cross-examination, I think that's a different topic. For this reason, I

3 would appreciate if you could -- as was suggested by my colleague,

4 Mr. Josse, if the Trial Chamber can come up with a clear question, is the

5 question what the Defence should give in advance of cross-examination to

6 the Prosecution, or is the question, how should information in the

7 possession of the Defence be placed to a witness during cross-examination?

8 I think these are two very different matters.

9 JUDGE AGIUS: Yes, they are different but related.

10 MR. BOURGON: I would be very glad to answer those matters,

11 whether in writing or orally, as long as we know what exactly is the issue

12 that we are talking about. Thank you, Mr. President.

13 JUDGE AGIUS: We will be coming back to you on -- on this.

14 Yes, I see Mr. McCloskey.

15 MR. McCLOSKEY: Just on a related matter, Mr. President, I've

16 asked Defence counsel this, but if -- I would remind them of their

17 obligations to inform us of any alibi evidence that they intend to lead.

18 JUDGE AGIUS: I think we -- there is one decision that we handed

19 down in the early stages of the case that that would -- dealt with ...

20 MR. McCLOSKEY: We haven't heard of any evidence -- there may have

21 been one response roughly related to alibi but I heard anything about what

22 Defence is suggesting, for example whether Drago Nikolic is at the

23 Orahovac school or whether Drago Nikolic is at the execution site. We

24 have heard evidence or information I should say, not evidence, that there

25 is a person that drove a truck and took the boy from the -- from the

Page 7955

1 execution site to -- took away. Is that person also suggesting I -- I

2 would imagine, that Drago Nikolic was not at the execution site. If so, I

3 think that's an alibi. So we have not really heard anything regarding

4 alibis. We haven't pushed it. I occasionally make reminders, but we've

5 also -- we've seen Colonel Beara has now been put at the Standard barracks

6 and I'm not sure I've heard -- my recollection may be refreshed but I'm

7 not sure anyone has told me whether there is any alibi or -- regarding

8 Colonel Beara as well.

9 JUDGE AGIUS: Yes, Mr. Bourgon.

10 MR. BOURGON: Thank you, Mr. President. I really don't know why

11 my colleague keeps on raising the issue of special defence or alibi. He

12 knows what alibi is. He knows that he has charged his case on the basis

13 of a joint criminal enterprise. He has had answers at least from the

14 Defence of our client. I believe he has also had answers from the others

15 and there is no point of coming back to the issue of alibi over and over

16 again. We have a defence, we are leading this defence, we are answering

17 the case they are leading, and we should not -- stop speaking about alibi.

18 Whether somebody is present at one site or another site or another site,

19 that would not make it an alibi. It would make it part of our defence and

20 has nothing to do that we will lead that evidence as the Prosecution leads

21 its case, we are answering the case and we will do so in our defence.

22 JUDGE AGIUS: All right. Don't expect us to comment on that at

23 this point for sure.

24 Do you wish to address the Trial Chamber --

25 MR. OSTOJIC: That's why I'm standing Mr. President?

Page 7956

1 JUDGE AGIUS: -- or to remain silent?

2 MR. OSTOJIC: I just want because when they mention our client,

3 you know, and I do object to his categorisation of what alibi is and the

4 manner in which he suggests that the Defence should put on their case. I

5 think we can sit here and argue about it. I'm sure in due course we will

6 have the opportunity before Your Honours. But he shouldn't shape the

7 evidence for you now. His own witnesses are inconsistent as to time, and

8 where any of the defendants or accused have been. So let him address

9 that, why he has those internal inconsistencies. But for him to

10 constantly come up and to try and shape that evidence, I think it's

11 inappropriate. And I will continue to object and stand up and at least

12 pursue my record on that issue. If the Court's concluded that he has met

13 his burden of proof on any of those issues, then the Court should advise

14 us of that and we then can proceed with the Defence case. But I don't

15 think it's there yet.

16 JUDGE AGIUS: Thank you, Mr. Ostojic.

17 Yes, Mr. McCloskey.

18 MR. McCLOSKEY: We appreciate counsel standing up for their client

19 but it's my position, and perhaps we have to make a filing on it, but if

20 during their Defence they argue that Colonel Beara was not at the Standard

21 factory at the 14 or 15 July, that's an alibi that he's somewhere else.

22 Same thing with Drago Nikolic, is he not at the Orahovac school on the

23 night of the 13th, the day of the 14th, not at the execution site but

24 somewhere else. If that is part of the defence, we need to hear it now

25 under these rules. Perhaps not the rules which we grew up and we

Page 7957

1 practiced in most of our lives, but in these Rules in this court, they

2 have to tell us. And I will file a motion to that respect, so we have

3 differing views on what an alibi is, and I respect that, but I think

4 perhaps we need your guidance from our motions to -- so we can come

5 together on that agreement and then I'm sure Mr. Bourgon and I and the

6 rest of the Defence will agree with your decision.

7 JUDGE AGIUS: Yes, Mr. Bourgon.

8 MR. BOURGON: Mr. President, [Microphone not activated].

9 The client we represent here is not being accused for being

10 present at such and such a place at such and such a date. He is being

11 accused because the Prosecution believe that he is come kind of a

12 participant in the joint criminal enterprise. We are -- our case we will

13 address -- as the evidence is being led by the Prosecution, we will

14 address every single step of our Defence as the evidence is being led.

15 Thank you, Mr. President.

16 JUDGE AGIUS: We can close on that. Don't expect any one of us to

17 say one single -- one single word more on this than we have said.

18 Yes, Mr. McCloskey.

19 MR. McCLOSKEY: Mr. President, we have spent a lot of time trying

20 to be as specific as we can in this indictment and what we have mentioned

21 at Orahovac is very specific. We will put this in a motion so that you

22 can rule on it, but if under their theory of an alibi it's just joint

23 criminal enterprise, then there is no alibi. And we have put all the

24 specificity for Orahovac and the other sites for nothing. But probably

25 enough said, we will get in a motion and see from there.

Page 7958

1 JUDGE AGIUS: I thank you. Is there any -- are there any further

2 submissions on this or on other matters?

3 Mr. Bourgon.

4 MR. BOURGON: Thank you, Mr. President. An unrelated matter. My

5 colleague suggested later on that the next witness could not be Ms. Frease

6 after 104. I would like to know who the next witness is after 104.

7 JUDGE AGIUS: That is news to me. You heard me address

8 Ms. Frease. My understanding was we finish with 104 and then we continue

9 with Ms. Frease. That's what I -- that's how I understood it. I don't

10 know if any of my colleagues understood it differently.

11 Mr. McCloskey.

12 MR. McCLOSKEY: We are of course always discussing things and as

13 items change or may change, I -- as you might add -- I'm going to call

14 Mr. Vanderpuye after this closes and see if -- if there is any more

15 material that has been found. Unfortunately sometimes when we find that

16 there has been a gap in our -- in our review, that gap sometimes opens up

17 into other things, and this is a recent gap, as you know, and I need to go

18 look and see if there is anything else and, of course, if there is, we

19 need it get that to the Defence and -- and if we need to put off Ms.

20 Frease, longer because of that, there is a lot of ifs in there, but

21 that's -- I always am thinking unfortunately in the negative. I'm -- I'm

22 worried that there's more out there and -- but we're really getting on it

23 and it will get resolved quickly.

24 JUDGE AGIUS: All right. Perhaps you will be in a position to

25 inform the Trial Chamber better tomorrow. The thing is, our concern is

Page 7959

1 that if we start with a different witness after 104, it's our interest to

2 make sure that the Defence teams are prepared. In other words, are given

3 sufficient, timely notice for that.

4 MR. McCLOSKEY: The order remains the same, and everyone's been on

5 notice of that order, and -- and they are all here and we have a whole

6 crew that's here.

7 JUDGE AGIUS: My understanding is today would have been taken

8 entirely by Ms. Frease, a good part of tomorrow, then 104 would have come

9 and finished on Friday, and that would have been it and we would be

10 talking of next week.

11 MR. McCLOSKEY: No, that's correct.

12 JUDGE AGIUS: As it is, you're suggesting that tomorrow if we

13 finish with this witness by I don't know, 5.30, then you have another

14 witness starting? What I want to make sure is that the Defence are

15 prepared, because we'll have the same problems as we encountered today.

16 MR. McCLOSKEY: Yes, of course, Your Honour, but I -- and I know

17 and as we appreciate, if there's four documents back there, the Defence

18 may not want to start with -- with Frease, and we understand that and --

19 and we take responsibility for that. But that's -- again, let's -- that's

20 a hypothetical, let's see where we are.

21 [Trial Chamber confers]

22 JUDGE AGIUS: Let's hear what Mr. Bourgon wishes to add.

23 MR. BOURGON: Mr. President, we mentioned earlier we are ready to

24 proceed with Ms. Frease tomorrow. The issue is we have one of my

25 colleagues has indicated that she will not have any questions for 104,

Page 7960

1 there is a good chance that we will have another witness after 104

2 tomorrow. We would just like to know who it is so we can be ready.

3 Whether it is Ms. Frease or the next one, we would like to be told at

4 least one day in advance who we have to prepare for tomorrow. Thank you,

5 Mr. President.

6 JUDGE AGIUS: Thank you. I think you have more time than you

7 would have otherwise had to discuss this amongst yourselves and come to a

8 conclusion, because we will have no further business to transact today,

9 things being where they are.

10 [Trial Chamber confers]

11 JUDGE AGIUS: Except for one last issue. Yesterday you stood up

12 and promised us a response to the Prosecution motion to convert next --

13 one of the next witnesses to a 92 ter witness, Mr. Bourgon. And I see

14 that Mr. Haynes is going to address that.

15 MR. HAYNES: Yes. In relation to that witness who has previously

16 testified in the Blagojevic case, I don't think any of us have any

17 particular difficulty with his evidence in chief being adduced in the

18 format of the transcript of his testimony. But we did think it was an

19 appropriate occasion to, as it were, draw the line in the sand. You may

20 or may not have seen that during the course of proceedings today there has

21 been a further motion suggesting the conversion, I think, of six witnesses

22 from viva voce to 92 ter, and -- 12, sorry. 12. And the form of their

23 evidence in chief varies greatly. And I think I speak for everybody when

24 I say we would begin to, as it were, put down the marker and draw the line

25 in the sand. Those witnesses, where the evidence in chief, it is

Page 7961

1 proposed, will be in the form of an interview with investigators of the

2 Office of the Prosecutor, and if the matter has to be addressed in more

3 detail in writing or indeed orally, then it will be. And I'm getting

4 ahead of everybody, really.

5 In relation to that motion you likely to find that our response in

6 relation to those who have been given evidence before, and have been

7 cross-examined before, is that's fine. But in relation to people who have

8 been through interviews which at varying times their status has changed

9 and there have been breaks that have been referred to, you are likely to

10 find that our stance will be that we would rather have their -- their

11 evidence in chief received in the usual way. Not the least because we

12 don't believe it will result in any saving of time. So the response in

13 relation to the motion from yesterday, I think, is we have no difficulty

14 with that. That witness can come 92 ter and the prior testimony can go in

15 as evidence in chief in relation to the block booking, as it were, that's

16 upcoming, you are likely to find a mixed response.

17 [Trial Chamber confers]

18 JUDGE AGIUS: Yes, thank you.

19 Mr. McCloskey, did you wish to address this matter? I think it

20 has come --

21 MR. McCLOSKEY: I can speak with Mr. Haynes about that to find out

22 what his concerns are, given the latitude that is been given on

23 cross-examination, I don't understand the foundation of the objection. We

24 are of course willing to put witnesses on fully, I think the Court gets a

25 better picture, but I think 92 ter has been working well, we have been

Page 7962

1 able to save time, I don't see any prejudice with the right of -- the

2 cross-examination that's being allowed. But given -- if there is a reason

3 for any one or two particular witnesses, we might be able to -- or we can

4 designate Mr. Ostojic to do the -- he can lead the witness as a

5 cross-examination. I mean, I don't understand the foundation of that.

6 But we'll talk with counsel about it and perhaps we can work something

7 out.

8 JUDGE AGIUS: Okay. At this stage we don't wish to comment on

9 it. We leave it for the time being in your hands to discuss possibly and

10 come to an agreement failing which of course we will need to intervene and

11 decide. In the meantime, we are handing down an oral decision in the case

12 of Witness number 154, pursuant to a Prosecution motion filed yesterday to

13 convert this witness to a Rule 92 ter witness.

14 Having heard the Prosecution submissions and those of the Defence,

15 Prosecution motion is granted. And I hope Mr. McCloskey, that as

16 indicated you will now proceed to disclose the 92 ter statement or

17 statements to the Defence in a timely fashion so as to avoid unnecessary

18 problems. Thank you.

19 So we stand adjourned until tomorrow at 2.15. We will continue

20 with the testimony of PW-104 and then we will see where we get after

21 that. All right? Thank you.

22 --- Whereupon the hearing adjourned at 5.53 p.m.,

23 to be reconvened on Thursday, the 1st day of March,

24 2007, at 2.15 p.m.