1 Thursday, 22 May 2008
2 Pre-Defence Conference
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.06 a.m.
6 JUDGE AGIUS: Good morning, Madam Registrar. Could you call the
7 case, please.
8 THE REGISTRAR: Good morning, Your Honours. This is case number
9 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.
10 JUDGE AGIUS: I thank you, ma'am.
11 For the record, all the accused are present.
12 I see all the Defence teams present here, with some new faces.
13 We will come to that very soon. And Prosecution, it's just Mr. McCloskey
14 this morning. So, Mr. Zivanovic, good morning to you.
15 MR. ZIVANOVIC: Good morning, Your Honours. I just like to
16 introduce our new legal assistant, Filippo de Minicis, he is sitting with
17 us today. Thank you.
18 JUDGE AGIUS: Filippo -- could you repeat the surname, please.
19 MR. ZIVANOVIC: Filippo de Minicis.
20 Mr. DE MINICIS: Good morning, Your Honours. Good morning to
21 everyone in the courtroom. My name is Filippo de Minicis, legal
22 assistant for Mr. Zivanovic.
23 JUDGE AGIUS: Thank you. You are most welcome. I also notice a
24 new arrival as co-counsel in the Borovcanin Defence team. Mr. Gosnell,
25 on behalf of the Trial Chamber I wish to welcome you. This is a kind of
1 system rather which is quite different from what you are used to at home.
2 You will get used to it as we go along. I'm sure you have been
3 sufficiently briefed on how we operate here. But I'm sure that you will
4 find your way without much ado.
5 I also notice a new face in the Pandurevic team, even if it's
6 behind the column.
7 MR. HAYNES: Yes, that's Ms. Kinga Tibori. She is a legal
9 JUDGE AGIUS: Thank you, Mr. Haynes. So I think we can start.
10 But before we start, I think we owe a tribute to your
11 predecessor, Mr. Gosnell, Mr. Miodrag Stojanovic. He's been with us here
12 since the beginning of the case. He was counsel here, lead counsel, in
13 another case. He's a very capable lawyer who distinguished himself in
14 more ways than one. He was capable, he prepared his case on a daily
15 basis. He was courteous towards the Trial Chamber and to his colleagues
16 both on the Defence and the Prosecution side. He did a great job
17 together with Mr. Lazarevic. And we are thankful for his services. We
18 will miss him and we ask you, Mr. Lazarevic, to convey to him our best
19 wishes for whatever lies ahead in his career which so far has been
20 brilliant enough. Thank you.
21 So the reason why we are convened here today is the outcome of
22 the filings that took place pursuant to Rule 65 ter(G), and also because
23 we felt that pursuant to Rule 73 ter, we should exercise our discretion
24 to hold a Pre-Defence Conference.
25 In preparation for this Pre-Defence Conference, we asked our
1 Senior Legal Officer, Mr. Cubbon, to convene and preside over a 65 ter
2 meeting with you, with a view to preparing better the various Defence
3 cases that we have scheduled for the coming months. I wish to thank you
4 all for attending the 65 ter meeting although there were some
5 shortcomings that could have been avoided but which I will avoid going
6 into, and I also wish to thank Mr. Cubbon for having conducted the
7 meeting in such an admirable manner. We went through the transcript of
8 the meeting, and we also had a very detailed report by Mr. Cubbon or from
9 Mr. Cubbon, which puts us in a position to take up the issue of the
10 preparation of the Defence case where it was left at the end of the 65
11 ter meeting.
12 There are some matters that are not going to be discussed, but
13 which need to be recorded. First thing is we asked and we are informed
14 that Mr. Cubbon did inform you that one of the expert witnesses, some of
15 you intend to offer, whether he will be accepted is another matter of
16 course, is Professor William Schabas and we wanted you to know that
17 Professor Schabas is and has been a very close personal friend of mine
18 and of Judge Prost for a long number of years, not that it mattered much
19 to us, but we wanted you to know about this. We understand that this has
20 been brought to your attention, both Defence teams and interested Defence
21 teams and Prosecution, and that according to you, there is nothing that
22 you wish to state on the matter. In other words, that no further action
23 is needed. That is what we have been told. So I'm just putting this
24 down in the record and for the record.
25 Now the main purpose of the 65 ter meeting, and of course this
1 Pre-Defence Conference is, as I have already said, the planning of the
2 remainder of the trial. In introducing the subject, I refer you to
3 Rule 73 ter with the title Pre-Defence Conference, which inter alia
4 empowers the Trial Chamber to call upon the Defence to shorten the
5 estimated length of the examination-in-chief for some witnesses, empowers
6 equally the Trial Chamber, after hearing submissions from the Defence, to
7 set the number of witnesses the Defence may call. And last, but not
8 least, authorises the Trial Chamber to determine the time available to
9 the Defence for presenting evidence. I'm mentioning all this not because
10 we have in our mind decided in one way or another to put into effect any
11 of these three measures. As you will recall, our approach from the
12 beginning of the trial has been that if you are reasonable, we will
13 endeavour to be even more reasonable, and in that manner try to move
14 ahead and achieve the greatest efficiency.
15 We gave it a try. And having done our homework, we considered
16 the following. We considered that during the Prosecution case, the
17 Prosecution used 266 hours, we used very little time and mostly in
18 disposing of procedural matters, and the seven Defence teams altogether
19 used 413 hours, which is 48 per cent of the total sitting time. We were
20 aware of this when earlier on in the year, after hearing your
21 submissions, we decided that it was reasonable to grant you three months
22 for the preparation of the various Defence cases. We did so for two
23 reasons, mainly. One of the reasons is that this is indeed a very
24 complicated and complex case involving serious crimes and involving
25 perhaps one of the most significant events in the history of the war in
1 ex-Yugoslavia, and we felt that adequate time was necessary to that
2 extent for a proper preparation of the Defence, but it could also have
3 been shorter. Why didn't we fix a shorter time? Because we were led by
4 you all, I would say, I wouldn't distinguish between one and the other,
5 to believe that this will not be labour lost; this will be a useful
6 exercise which would ultimately translate in a Defence case which would
7 be shorter and reasonably shorter than what we would otherwise -- what
8 one would otherwise expect. And these were our expectations.
9 Now, I must confess, and this is not just my opinion but the
10 opinion of everyone here, that we do appreciate the effort made by some
11 of you in doing their utmost to limit the length of the Defence -- of
12 their Defence case. But we are still concerned that we haven't reached
13 the optimum or what we had expected.
14 In preparation for the 65 ter meeting, we discussed this with our
15 Senior Legal Officer and we gave him strict instructions to discuss the
16 matter of the expected length of Defence cases with you, communicate to
17 you our concerns, and invite you to consider possible reductions in your
18 Defence case, respective Defence cases. He reported back to us and today
19 this will constitute one of the most important, perhaps the focal, issue
20 of the Pre-Defence Conference.
21 The way we are going to proceed now is a very simple one. I am
22 not going to recall or repeat what was discussed during the 65 ter
23 conference because that is common knowledge, but I am going to call on
24 each one of you to inform the Trial Chamber if you have considered areas
25 where you think reductions on your part are possible. At the end of this
1 exercise, we will take stock of the situation, after which we will take a
2 decision. At the present moment, as I said, we have no plans at all to
3 take one rather than another decision. That very much depends on what
4 will be the outcome of the discussions today.
5 We are going to start with the Beara Defence team and we are
6 going to start with the Beara Defence team not because we want to single
7 the accused Beara -- single out the accused Beara, but it's because we
8 consider, having gone through the details of the filings by the
9 Beara Defence team, that the anticipated or the suggested Defence case by
10 that team is excessive, when it comes to time needed for its completion.
11 Some information was exchanged during the 65 ter meeting, and what we
12 would like to know from the Beara Defence team now is whether there are
13 any intentions on your part to put in place any reductions in your
14 Defence case. Mr. Ostojic?
15 MR. OSTOJIC: Thank you, Mr. President, Your Honours. Good
16 morning. Yes, we've discussed that briefly among our team members and I
17 also spoke to the Court Senior Legal Officer and we have indicated that
18 we will make some reductions. We don't know exactly if the Court will
19 consider them to be significant but we will consult with our client this
20 afternoon and tomorrow and I've also invited the Prosecution to sit down
21 with us tomorrow, all day if necessary, in order to meet some of the
22 Court's guidelines on this issue.
23 JUDGE AGIUS: But that's too vague.
24 MR. OSTOJIC: Is the Court looking for a specific number from us?
25 JUDGE AGIUS: What the Court is looking for is concrete
1 information, Mr. Ostojic. It's already the second time, during the
2 65 ter meeting we got nothing out of Mr. Meek.
3 MR. OSTOJIC: I'm sorry that the Court feels that and I can tell
4 the Court that --
5 JUDGE AGIUS: But we got nothing out of Mr. Meek and the main
6 reason being probably that you were not present and we are getting
7 nothing out of you or almost nothing out of you today.
8 MR. OSTOJIC: I'm sorry the Court feels that way. I'm being very
9 sincere with the Court when I said that we looked at all the witnesses
10 again, we will pare it down, I can't give the Court a specific number
11 without consulting with my client. He was yesterday with a family visit
12 all day and the last several days. I think we can pare it down by 20 per
13 cent, if the Court wants me to make a guesstimate but that obviously,
14 Mr. President, depends on many factors such as the Court's ruling on the
15 92 bis suggestions that we made. If in my meeting with the Prosecution
16 they are able to agree that certain witnesses can be brought in under
17 Rule 92 bis, certainly we will remove them. We think there is some
18 duplication. I don't think that it's more than 20 per cent.
19 We think it's necessary to show some of the facts and I did hear
20 the Court's message on some of the pre-1995 issues but, with all due
21 respect, I think it's necessary in light of the Court's most recent
22 ruling where they suggested that pattern, conduct and intent for crimes
23 subsequent to the dates that are in the indictment are indeed relevant
24 and I think that those in 92 which we will draw upon but ever so briefly
25 for the Court are important and relevant in this case. I can assure the
1 Court we are working vigorously to reduce the list and I can tell you
2 that right now from my best guesstimate I can say that I would suggest
3 that there would be a 20 to 25 per cent cut from the original list but do
4 I have to check with all team members and Mr. Beara as well.
5 JUDGE AGIUS: Okay. Let us put one thing clear for the record,
6 Mr. Meek, that our intervention in all this and our part in all this is
7 in no way related to whether any witness or piece of evidence that you
8 intend to bring forward is relevant or not. We are in no way telling you
9 eliminate what is not relevant because we are not prepared to tell you
10 whether a piece of evidence is relevant now as things stand. That is
11 your responsibility and we'll deal with it as we go along.
12 So the position is as follows: There is a validity and a lot of
13 sense in what you've just said in relation to outstanding possible
14 Rule 92 bis and Rule 92 ter witnesses. And those are pleasures yet to
15 come. We'll still need to receive feedback from the Prosecution on the
16 various motions that have been filed. I am not sure if you have filed
17 your motion on Rule 92 bis and 92 ter. I don't recall having seen it.
18 MR. OSTOJIC: I believe we have, Your Honour.
19 JUDGE AGIUS: You have? Okay. So what we will expect is an
20 answer, a reply, from Mr. McCloskey, and that should put us in a position
21 not only in relation, in regard your client but also in relation to the
22 other Defence teams, what the position is, because there are various
23 Defence teams that have asked for witnesses to be heard via the Rule 92
24 bis and 92 ter procedure.
25 All right.
1 [Trial Chamber confers]
2 JUDGE AGIUS: Mr. Ostojic, the last thing having heard what you
3 plan doing after consultations with your colleagues and also with
4 Mr. McCloskey, is we would like you to state here when you expect to be
5 in a position to give a concrete answer to the Trial Chamber.
6 MR. OSTOJIC: I'm confident I can do that by the end of business
7 tomorrow, Your Honour, if the Prosecution is available to meet with me
8 tomorrow, I'm available all day to meet with him and willing to meet with
9 him and I'm quite confident that we will be able to resolve most of the
10 issues to give you that exact answer.
11 JUDGE AGIUS: I thank you. That's reasonable, Mr. Ostojic.
12 Mr. McCloskey?
13 MR. McCLOSKEY: Yes, Mr. President, we work very well with the
14 Beara team. We only need the 92 bis statements for that to work and I
15 know they know that and so if that is coming, we will be able to manage
16 that rather quickly but we do need those statements.
17 JUDGE AGIUS: That's what I meant when I hadn't seen them
18 actually, but -- Mr. Ostojic.
19 MR. OSTOJIC: Yes, Mr. President?
20 JUDGE AGIUS: When will you be in a position to provide the
21 Prosecution with the 92 bis statements? Even in draft form?
22 MR. OSTOJIC: Thank you for that, Judge Kwon. We don't --
23 JUDGE AGIUS: Because you had a time limit to do that and that
24 passed already and you haven't.
25 MR. OSTOJIC: Mr. President, we typically don't get the signed
1 statements from the witnesses and I will give him everything we have
2 including some of my notes so long as it's not privileged in my opinion.
3 I may even share that with him because I'm confident that he's not going
4 to divulge it but I think he'll be reasonably satisfied that he'll have
5 more than enough information. And for the record if I may just point out
6 from my opinion, I think our summaries were quite extensive and should
7 have provided adequate or more than adequate information to the
8 Prosecution and that they were able to at least make an estimate as to
9 how long each of those witnesses may potentially be cross-examined, but I
10 will however continue to endeavour to provide him all the information
11 that we have within the Rules so that he can be fully satisfied.
12 JUDGE AGIUS: Thank you, Mr. Ostojic.
13 [Trial Chamber confers]
14 JUDGE AGIUS: Let's clarify this because as I'm sure you know,
15 Mr. Ostojic, that for the purpose of Rule 92 bis or 92 ter for that
16 matter, what is required from you to provide the Prosecution or the other
17 party is not witness summaries, it's the full statement of that or those
18 witnesses. And that is what is missing. So what you are required and
19 what Mr. McCloskey will certainly expect from you before he can make a
20 reasoned decision is the statement or statements of your witnesses and
21 not the summaries. This is why I'm asking you whether you are in a
22 position to provide them in good time, if you intend to come back to us
23 with a corrected forecast of your Defence case.
24 MR. OSTOJIC: Mr. President, I think I'm prepared and I'm ready
25 to proceed with the Prosecution at his convenience.
1 JUDGE AGIUS: Is there a possibility that you meet between today
2 and tomorrow, Mr. McCloskey?
3 MR. McCLOSKEY: Yes, Mr. President.
4 JUDGE AGIUS: Thank you. Thank you both.
5 Now, Mr. Zivanovic.
6 MR. ZIVANOVIC: Yes, Your Honours.
7 JUDGE AGIUS: Same questions to you. Your case, when we worked
8 our calculations, also is expected to take pretty long. You have, of
9 course, this pending question of the Prosecution reopening of its case,
10 which probably will need to be decided by the Appeals Chamber but we'll
11 come back to you soon on that. But forgetting that, and irrespective and
12 independently of that, have you done any homework following the 65 ter
13 meeting, which leads you to some possible reductions in your Defence
15 MR. ZIVANOVIC: Yes, Your Honours, we reduced our list, we shall
16 drop one witness from the list, and we shall reduce some time for the
17 examination-in-chief of some other witnesses. Some of the common
18 witnesses will appear in the case of the other accused. These are
19 Mrs. Danijela Danojlovic, Mr. Milenko Jevdjevic and our common expert,
20 Mr. Djuro Radic. I intended to file a notice to the Chamber today or
21 tomorrow, and you will have all details.
22 JUDGE AGIUS: That's very kind of you, Mr. Zivanovic. Thank you.
23 Do you wish to state anything in regard, Mr. McCloskey? I don't think
25 MR. McCLOSKEY: No, Mr. President.
1 JUDGE AGIUS: Thank you.
2 Madam Nikolic?
3 MS. NIKOLIC: [Interpretation] Good morning, Your Honour.
4 JUDGE AGIUS: Good morning to you. It's more or less the same
6 MS. NIKOLIC: [Interpretation] Yes, Your Honour, we have taken
7 into consideration -- may I continue?
8 JUDGE AGIUS: Yes, go ahead.
9 MS. NIKOLIC: [Interpretation] We have taken into consideration
10 the suggestions that we were given through the Senior Legal Officer, in
11 those areas where assistance and reduction is expected in the
12 Nikolic Defence case. What I can say for the moment is that the Defence
13 has decided concerning one viva voce witness related to the
14 Zvornik hospital area, to put him on as a 92 ter witness, to reduce the
15 time of examination. As for a group of witnesses related to year 1992,
16 we had had a number of contacts with the Office of the Prosecutor in
17 order to stipulate the facts that these witnesses could possibly testify
18 about. So that in case agreement is reached, this could considerably
19 reduce the Defence case for accused Nikolic. As for the 92 bis witness
20 statements, we will spend next week working in the Zvornik area and we
21 expect to be able to submit the results of this mission after that work
22 is done.
23 JUDGE AGIUS: Thank you, Madam Nikolic. When you say as for the
24 92 bis statements -- sorry, witness statements, are you referring to
25 Witnesses 12, 16 and 19? Or to someone else?
1 MS. NIKOLIC: [Interpretation] As for 12, 16 and 19, two
2 statements have already been attached to our 92 bis statements and the
3 only missing statement is for the Witness 396.
4 THE INTERPRETER: The interpreter is not sure if she had the
5 number correct.
6 JUDGE AGIUS: Which witness has a missing statement?
7 MS. NIKOLIC: [Interpretation] I will tell the Chamber
8 immediately. There are four 92 bis witnesses for whom we have not
9 provided statements and we have informed the Chamber accordingly. Those
10 are numbers 3 --
11 THE INTERPRETER: Could the counsel read them again slowly?
12 MS. NIKOLIC: [Interpretation]
13 JUDGE AGIUS: Can you read them out again slowly, please, for the
15 MS. NIKOLIC: [Interpretation] Of course. 3DV15, 3DV16, 3DV18,
16 and 3DV27.
17 JUDGE AGIUS: So the position as regards these four witnesses is
18 what, if you could state it again?
19 MS. NIKOLIC: [Interpretation] The situation is that we will see
20 these witnesses next week again and try to take statements signed by
21 these witnesses and attach them to our 92 bis submission within the
22 shortest time possible.
23 JUDGE AGIUS: All right. Thank you, Madam Nikolic. Otherwise,
24 there are no other areas where you propose reductions, I take it?
25 MS. NIKOLIC: [Interpretation] Not for the moment, Your Honour.
1 JUDGE AGIUS: Thank you. Thank you, Madam. Mr. Lazarevic? Or
2 Mr. Gosnell?
3 MR. GOSNELL: Thank you, Your Honour, for your welcome this
4 morning. I'm going to address the Chamber briefly on this. As you know,
5 Your Honour, from having looked at the -- our submission, of course,
6 you'll know we are starting from a rather low base. We are proposing to
7 call a total of 19 witnesses, two of them are joint, and of those, three
8 will be 92 bis witnesses. So that leaves 14 of our own witnesses. Our
9 plan is to try to, in your words, optimise the Court's time by exploring
10 the possibility of additional 92 ter or 92 bis statements and we hope to
11 ensure that our case is kept to an efficient scope. We will of course
12 advise the Chamber as soon as possible, make a filing indicating when we
13 know whether that will be a possibility.
14 JUDGE AGIUS: Thank you, fair enough, Mr. Gosnell.
15 Madam Fauveau?
16 MS. FAUVEAU: [Interpretation] Mr. President, we can say to the
17 Chamber that we will certainly withdraw at least two of our witnesses.
18 For the moment I'm not in a position to say which witnesses they will be
19 because obviously we have to make a very specific choice. Also, for
20 witnesses 23 and 24 on our list, we are envisaging seriously to present
21 them according to Article 92 ter of the Rules. The only thing which we
22 will ask from the Chamber is to grant us time to prepare the statements
23 and we will contact these witnesses and we'll make an appointment with
24 them so we may need to have enough time to give these statements. Also,
25 we envisage to shorten the time necessary for our examinations on direct
1 which would reduce also the time indicated, which I think was 70 hours,
2 so we could reduce it to about 58 hours, and of course we will explore
3 other possibilities, possibly to present other 92 ter witnesses or to
4 shorten certain cross-examinations. We also have seven witnesses who are
5 common to other teams of Defence which would enable us to reduce more the
6 time necessary because I'm sure that cross-examinations will be covered
7 by other teams of the Defence.
8 JUDGE AGIUS: Thank you, Madam Fauveau. Incidentally, in
9 relation to the time that you have expressed you would -- you stated you
10 would need for the purpose of filing 92 ter motions, I mean, the idea as
11 I understand it, will be that we will start the Defence teams according
12 to the indictment. So it will be quite some time before your turn comes
13 up, even if everyone shortens his Defence case, even if there is a
14 significant reduction. But in any case, there is also a second option,
15 that there is a beginning and an end with an intervening period of time
16 to every Defence case, and you can, in addition, plan to have these 92
17 ter witnesses if the motion is granted brought forth for
18 cross-examination towards the end of your case rather than in -- near the
20 All right?
21 MS. FAUVEAU: [Interpretation] Yes, Mr. President. Thank you very
23 JUDGE AGIUS: In any case should you require the assistance of
24 the Trial Chamber we will, as we have done in the past, provide you with
25 it. And not just to you but to all of you.
1 Mr. Josse, Mr. Krgovic, I don't know who is going to address the
3 MR. JOSSE: Your Honour, there were two issues that Mr. Cubbon
4 raised at the 65 ter conference. The first relates to witnesses
5 testifying on the roles of morale, religious and legal affairs sectors at
6 both corps and brigade levels and how they interacted with the
7 Main Staff. That issue we can categorically state will be one we will be
8 able to reduce the amount of witnesses we propose to call, either by
9 physically reducing the number or by producing 92 bis and/or 92 ter
10 witness statements. We are, I repeat, very confident that that issue
11 will be reduced.
12 The other issue that the Trial Chamber brought to our attention,
13 that is the whereabouts of General Gvero in late July of 1995, is frankly
14 rather more problematic. Our investigation has indicated a significant
15 number of people, up to 100, I'm told, who say they saw General Gvero at
16 that time in the western part of Bosnia
17 down considerably. That being said, let me make it clear our
18 investigation has not finished in this regard and the Trial Chamber will
19 be aware that this became a live issue in the case relatively late on and
20 that is why the investigation is still ongoing.
21 Mr. Krgovic and I have discussed the issue at some length
22 following the 65 ter Conference and we are going to try and produce 92
23 bis and/or 92 ter witness statements for some, if not all, of the people
24 involved. Frankly, Your Honour, we think it unlikely that 92 bis
25 applies, although any guidance in that regard would be most gratefully
1 received but we would have thought a suggestion by a Defence team that an
2 accused was not where the Prosecution allege that he was must be a matter
3 that goes to the acts and conduct of that accused and therefore not
4 suitable for a 92 bis statement. Therefore, it's going to have to be 92
6 What Your Honour has just said to my learned friend Madam Fauveau
7 is something we are most delighted to hear because, frankly, we are not
8 going to be in a position to tender those statements for a considerable
9 period of time and bearing in mind what you've just said to her, the
10 Trial Chamber clearly are saying that they don't need to be tendered for
11 a considerable period of time. That being said, we can assure the
12 Trial Chamber we will get on and do our best to produce these various
13 statements. But it will take primarily Mr. Krgovic's own personal
14 attention and these witnesses are spread over different parts of Bosnia
15 so it's something he's going to have to do as this trial progresses. I
16 hope that assists.
17 JUDGE AGIUS: Okay. Thank you. However, related to all this,
18 and I meant to refer to this later on, but you may sit down, Mr. Josse,
19 there is a matter of great importance that I want you to address your
20 minds to, that planning each of the Defence cases is not only our
21 problem. It is primarily our problem but we would like to make it clear
22 that whoever is before you or whoever is coming after you also needs to
23 have a clear indication of when to expect their case to come up. Let me
24 give you an example. I mean, when I look at the filings of the
25 Gvero Defence team, forgetting for the time being what you have more or
1 less promised today, that you will make a serious effort, which I'm sure
2 you will, to convert several of these viva voce witnesses into 92 bis or
3 more probably 92 ter witnesses, irrespective of whether they are going to
4 be 92 bis or 92 ter, there will be a significant saving on time which
5 would expectedly reduce your Defence case but that would mean that the
6 Pandurevic case will start earlier or would be expected to start earlier.
7 And you should also be aware that if the one before you, and you have got
8 four -- you've got five before you, do exactly the same thing, then what
9 you may be playing for, I don't know which month later on this year or
10 next year, may prove to be a wrong estimate, and you will be faced with a
11 position where you have to start -- you would find yourself in a position
12 where you have to start your Defence case within or much earlier than you
13 expected, with the consequence that perhaps the Rule 92 ter statements
14 have not yet been obtained and with the further result that the expected
15 saving on time will be lost.
16 So this is why we are saying planning is very important for us,
17 but you should understand, and I'm sure you understand, that it is almost
18 more important for you because the case is yours at the end of the day.
19 MR. JOSSE: Thank you very much. Of course, we are aware of
20 that, and we will try and do things with as much expedition as possible.
21 So far as Mr. Haynes's position is concerned, ironically, he and I were
22 discussing that very subject last night, namely, clearly he would need to
23 know how long we are going to take --
24 JUDGE AGIUS: Obviously.
25 MR. JOSSE: -- because he comes immediately after us. He'll no
1 doubt confirm that we are in the Gvero team very aware as to how that's
2 going to impact on the Pandurevic team.
3 JUDGE AGIUS: Yes, obviously. And thank you for that because I
4 was a little bit taken aback when you used the -- or you interpreted my
5 words, it's not a criticism, don't misread me, that I was sort of happy
6 with Madam Fauveau or with yourself taking as much time as you think you
7 need for the preparation of the 92 ter statements. It could well be, and
8 I'm saying this from experience, and fortunately, I have a longer
9 experience than -- in trials than any of you here, it could well happen
10 that, for example, the Popovic team anticipates so many hours and will
11 end up with -- using one half of that, you could well end up with another
12 Defence team reducing, as we go along, the number of witnesses. I mean,
13 in the previous case I dealt with, for example, the number of witnesses
14 were halved in the course of the Defence case and the Defence case took
15 almost one fourth the time of what we had authorised and what was
16 expected. So that was just one accused. Here we have seven. So each
17 one of us should be expected to be prepared for this. Now, for the time
18 being I'm only saying this because later on I will touch on a very much
19 related subject that was not discussed during the 65 ter meeting, but
20 which is on our mind and which again mostly based on past experience of
21 the four of us, we are sure carries a lot of importance and we want to
22 make sure that you are fully aware of what our intentions are. But I
23 thank you, Mr. Josse. I take note of what you promised or you undertook
24 to do in the forthcoming days and weeks, and we expect positive results.
25 Mr. Haynes?
1 MR. HAYNES: Rightly or wrongly, I'm working on the assumption
2 that I will present my case this calendar year. I don't know why but
3 that's just the way that I read the 65 ter lists ahead of me. I'm
4 anticipating that I will have to present my case towards the end of this
5 year. And we are ready for that. You will know that our 65 ter list is
6 different from many others in that it contains two very substantial
7 witnesses, I have very much in mind the shape of my case, it will begin
8 with one of them and end with the other. And depending upon the extent
9 of the challenge to the principal Defence witness, I anticipate losing an
10 awful lot of witnesses thereafter but those two witnesses are going to be
11 substantial and they will form the body of my case.
12 I think we began with 23 witnesses. Seven of which I think are
13 paper witnesses. We've lost another 3 to other Defence teams. It's in
14 hand. I know the shape of it. It will take weeks, not months, to
15 present my case.
16 JUDGE AGIUS: Okay. Thank you, Mr. Haynes.
17 So rounding up this part of the -- yes, Madam Fauveau? I
18 apologise to you. I didn't see you.
19 MS. FAUVEAU: [Interpretation] Mr. President, excuse me, I would
20 simply give a few corrections to the notes. Page 15, lines 1 and 3, what
21 I meant and I think everybody understood me, but just to be sure that
22 everything is clear, it's not cross-examinations but direct examinations,
23 which we will make an effort to shorten.
24 JUDGE AGIUS: [Microphone not activated] The rest doesn't depend
25 on you, Madam Fauveau. Thanks, so I would round up this first part of
1 the discussions today and basically the position is this: Ultimately
2 what will be decided by the Trial Chamber, because the decision will need
3 to be taken in any case, will depend on the revised estimates that we
4 expect from you and which you promise, some of which I suppose you are
5 already ready, in a position to provide us with. Others will probably
6 require a little bit more time. But we enjoin you to put us in the
7 picture as early as possible, and this will be to your benefit. It's not
8 just to our benefit. It's mainly to your benefit.
9 The other obviously caveat depends on the ultimate decisions that
10 will need to be taken in relation to applications for witnesses to be
11 heard under Rules 92 bis or 92 ter, possibly 92 quater and we are not
12 prepared to anticipate anything there because all depends on documents
13 that apparently some of which have not yet been provided, and of course,
14 we will need to await the -- to hear what the position of the Prosecution
15 is in regard. And that again can affect on the ultimate decision that we
16 will take.
17 Also, in relation -- we will start with the Popovic Defence case
18 first, so in the case of Popovic, these particular issues need to be
19 determined the earliest possible. Don't forget that on the 2nd of June
20 we start again, and we have to have a very clear position as to how long
21 that case is going to take, not only because we need to know but also
22 because the Beara team needs to know and the rest of you need to know
23 because your cases will come up pretty soon. So rounding this up, we
24 will await for further information, and following which we should be in a
25 position to hand down the appropriate rulings or decisions, part of which
1 will need to be immediately before we start with the Popovic Defence
3 I am going to move on to another subject, which was touched upon
4 during the 65 ter meeting and following which we were given the relative
5 information by Mr. Cubbon. And that's opening statements.
6 Now, the position as we know it until now is that the --
7 Mr. Zivanovic intends and requests 45 minutes for an opening statement.
8 Is that correct?
9 MR. ZIVANOVIC: Yes, that's correct, Your Honour.
10 JUDGE AGIUS: That Mr. Ostojic also requests the opportunity to
11 make an opening statement, but Mr. Meek was not in a position to tell us
12 what time will be required.
13 MR. OSTOJIC: No more than one hour and 30 minutes, Your Honour.
14 [Trial Chamber confers]
15 JUDGE AGIUS: And the Nikolic Defence team gave an indication
16 that no -- there is no intention to have -- make an opening statement; is
17 that correct?
18 MS. NIKOLIC: [Interpretation] Correct, Your Honour.
19 JUDGE AGIUS: The Borovcanin Defence team was not in a position
20 to indicate the time needed for an opening statement.
21 MR. LAZAREVIC: Yes, Your Honours, at this stage I really -- it's
22 very hard to make an estimation. I believe it won't last more than one
23 and a half hours but I really cannot say this at this stage.
24 JUDGE AGIUS: Miletic, same?
25 MS. FAUVEAU: [Interpretation] Yes, Mr. President. I think it's
1 pure speculation to make an estimate. I'd prefer for the moment not to
2 make an estimation.
3 JUDGE AGIUS: Gvero Defence team indicated one hour.
4 MR. JOSSE: It's an approximation, Your Honour, but yes.
5 JUDGE AGIUS: And Pandurevic, no intention to make an opening
7 MR. HAYNES: A bit early to say, but unlikely that I will.
8 JUDGE AGIUS: All right. Now, without committing ourselves to
9 the time that you will be allotted or allocated for the opening
10 statements, there is one problem, and that arises in relation to the --
11 or in the wake of the request made by the Beara team, the Beara Defence
13 I will refer you, Mr. Ostojic, to Rule 84 with which I am sure
14 you are very familiar and our recollection, our recollection I can assure
15 you it is correct, is that when we started this case, you opted to make
16 an opening statement which you did, and it seems to us that what the Rule
17 states is that you have an option, you can make it then or you can make
18 it later but you have no right to make two statements. What do you have
19 to say to that?
20 MR. OSTOJIC: Mr. President, I read the rule actually and I
21 respectfully disagree with the Court if that's the Court's position. It
22 doesn't give me an option. It doesn't exclude me specifically and
23 expressly from giving an opening statement at the commencement of my
24 Defence case. I think it's a reasonable request, I think the time that
25 I've stated is reasonable. I think it might be necessary for the Court
1 in order for us to be able to summarise in a nutshell what our evidence
2 will be, at that time we didn't have much of that evidence. Prosecution
3 certainly from time to time has amended their witnesses and some of the
4 theories in their case. I think the Rules do not prohibit me
5 respectfully from presenting an opening statement before my Defence case.
6 JUDGE AGIUS: Yes, can you show us where the Rule does not
7 prohibit you?
8 MR. OSTOJIC: Specifically the Rule, Your Honour, does not say
9 that you have only one option and you can expect to either have an
10 opening at the beginning of the trial or at the beginning of your Defence
11 case. I do not read the Rule that way. I've looked for the decisional
12 authority on that. I did not find some. Respectfully, I think that's a
13 narrow reading and approach to the Rule.
14 [Trial Chamber confers]
15 JUDGE AGIUS: Mr. McCloskey, do you have -- do you take a
16 position on this?
17 MR. McCLOSKEY: Yes, I think the Rules are very clear about that
18 and only one opening statement. However, I don't object to a short
19 opening statement, especially Mr. Ostojic likes to talk about me a lot
20 and that's no problem.
21 JUDGE AGIUS: All right. Our position on this is going to be
22 determined now, Mr. Ostojic and Mr. McCloskey. Mr. Ostojic, you will be
23 allowed to make an opening statement only if you show good cause. You
24 will be asked to show this good cause when your Defence case comes up.
25 We'll determine then whether you have shown a sufficient good cause and
1 we will also determine the time that you will have available for your
2 opening statement, if that is granted. Now as regards I just want for
3 the record to confirm the position as it has been communicated to us by
4 Mr. Cubbon. We have been indicated that -- there is no intention, at
5 least for the time being, that Mr. Popovic or Mr. Beara make a statement
6 of their own. Mr. Zivanovic?
7 MR. ZIVANOVIC: That's correct.
8 JUDGE AGIUS: Mr. Beara? Mr. Ostojic?
9 MR. OSTOJIC: That's correct, Mr. President.
10 JUDGE AGIUS: Okay. I don't seem to have a definitive answer as
11 regards Mr. Nikolic. Mr. Bourgon?
12 MR. BOURGON: Good morning, Mr. President. This is a matter
13 which is still very much under consideration and at this time I can say
14 that Mr. Nikolic -- there is a possibility for either a statement or
15 testimony on his behalf. Thank you, Mr. President.
16 JUDGE AGIUS: I thank you for that information, Mr. Bourgon.
17 Mr. Borovcanin and Mr. -- and General Miletic, I take it that none of
18 them wish to make a statement? Madam Fauveau?
19 MS. FAUVEAU: [Interpretation] It's quite possible my client will
20 not make a statement but maybe -- it's much too early. It's most
21 probable that he won't make a statement, such a statement.
22 JUDGE AGIUS: Thank you. And Mr. Lazarevic?
23 MR. LAZAREVIC: Our position is very much the same as
24 Madam Fauveau's. It is unlikely but I cannot exclude anything.
25 JUDGE AGIUS: Thank you. And now we come to you, General Gvero.
1 Mr. Josse?
2 MR. JOSSE: Well, I appreciate that General Gvero unlike any of
3 the other accused in this case did elect to make a Rule 84 bis statement
4 prior to the commencement of the trial or presentation of evidence
5 perhaps I should say. The way I would invite the Trial Chamber to leave
6 this is the way they have with the opening statement so far as the Beara
7 case is concerned. Basically, review the situation as and when it arises
8 and that allow us to make an application and if good cause is shown, to
9 consider the matter.
10 JUDGE AGIUS: Thank you. Our concern, if you can call it a
11 concern, because it's not a concern actually but General Gvero already
12 made a statement at the beginning of the trial, and we followed that
13 statement with great attention and giving it all due importance. And he
14 is indicated as giving evidence later on. So obviously the question
15 arises, if he's going to give evidence, why should he elect to make an
16 unsworn statement before? I mean --
17 MR. JOSSE: Could I give this? Could I have a moment?
18 JUDGE AGIUS: Yes.
19 [Defence counsel confer]
20 MR. JOSSE: We can give a categorical assurance that it will only
21 be one or the other. If we ask leave for a further 84 bis statement, he
22 will not give evidence from the witness box.
23 JUDGE AGIUS: I see. That makes more sense. That makes more
24 sense obviously because obviously you would have asked the same question,
25 I'm sure.
1 MR. JOSSE: Absolutely, Your Honour.
2 JUDGE AGIUS: Why should he make a statement at 9.00 in the
3 morning lasting maybe 15 minutes or 20 minutes and then at 9.20 he starts
4 giving evidence?
5 MR. JOSSE: Your Honour, there is no secret about this. He is on
6 the list as one of our witnesses because he may gave evidence on his own
7 behalf. That decision will not finally be made until the appropriate
9 JUDGE AGIUS: Fair enough. Thank you. I appreciate that,
10 Mr. Josse. Yes, Mr. McCloskey?
11 MR. McCLOSKEY: Yes, Mr. President, this is a rather serious
12 issue for us. So as this decision is made I'm sure counsel will tell me
13 because should he elect to try to make another statement we would be
14 insisting in a motion that we cross-examine him, that we be able to ask
15 him questions about that. Of course, that's not a problem if he
16 testifies, but if he -- we will be insisting to cross-examine him if he
17 gets the second bite at the apple.
18 JUDGE AGIUS: Thank you.
19 So that, I think, disposes of the issues of opening statements.
20 The next item on my agenda is the order in which the Defence
21 cases are to be presented, and I'm stating this just for the record.
22 According to the report that I have from Mr. Cubbon, which I'm sure you
23 will confirm, at the 65 ter meeting it was confirmed by the various
24 Defence teams that they would be presenting their evidence in the order
25 in which the accused are listed in the indictment. The consequence of
1 that is that the Popovic Defence team will go first and he will be
2 followed according to the list of the accused in the indictment.
3 [Trial Chamber confers]
4 JUDGE AGIUS: Now we are again coming to some very serious
5 business, starting with one aspect of it which is not very serious but
6 which will lead to various questions, and this is the point that I was
7 trying to make earlier on when I said that I will come back to you and
8 try to alert you to big problems that we can foresee and which can become
9 a big handicap of progress of this trial as we go along.
10 Now, the Popovic Defence team, in anticipation of knowledge,
11 confirmation, that they would be the first to -- they would be the ones
12 to go first, have provided the Trial Chamber with a witness testimony
13 schedule for the month of June. This was filed confidentially, and so I
14 will not mention much more than I have.
15 We wish to thank you, Mr. Zivanovic, for having done this in a
16 timely fashion, but also because it opened our eyes to various problems
17 which we wouldn't have been able to ask Mr. Cubbon to deal with during
18 the 65 ter meeting.
19 First of these problems is the expected testimony of Miladin
20 Kovacevic. This is an expert witness. Now you have provided his report
21 in the original language, which is the B/C/S. The translation of his
22 report is not yet ready, at least to my knowledge, unless it was
23 finalised yesterday. And you schedule this guy to testify on the 6th,
24 between the 6th and the 9th of June. Mr. Cubbon asked you during the 65
25 ter meeting when you expect the translation to be ready. You said it's
1 expected soon, but that Mr. Kovacevic could safely be moved to the second
2 part of June if the translation is not ready soon.
3 So I see you trying to stand up, anxious to give the information
4 to the Trial Chamber, so I will stop here for the time being and see what
5 information you can give us. Mr. Zivanovic?
6 MR. ZIVANOVIC: Yes, Your Honour, we moved his testimony for
7 July, and you will be informed about it through our notice which will be
8 filed today or tomorrow.
9 JUDGE AGIUS: And in the meantime, what are you going to do with
10 the days of the 6th and the 9th of June when you had anticipated to bring
12 MR. ZIVANOVIC: We make a schedule of our witness list and you
13 will get it.
14 JUDGE AGIUS: Thank you for that information. It is also
15 important because Mr. McCloskey, in the meantime, there is also another
16 motion from the Popovic Defence team seeking to add, in relation to this
17 witness, to add some more exhibits to the 65 ter list, and we enjoin you
18 to come forward with your response to this motion at the earliest
19 possible because ultimately it does have some bearing, albeit little, on
20 when Mr. Kovacevic can be brought forward to give evidence.
21 MR. McCLOSKEY: I can tell you, having given this kind of notice,
22 I'm not going to be objecting to a 65 ter list motion. If it's on the
23 65 ter list, no problem. Whether it's admissible or not that's the crux
24 of it for me so I don't have a problem with it.
25 JUDGE AGIUS: In other words, can we decide it orally here and
2 MR. McCLOSKEY: Yes, absolutely.
3 JUDGE AGIUS: Okay. So let's proceed immediately with granting
4 the motion. The motion was filed on the 21st of May by the
5 Popovic Defence team, seeking an addition to the 65 ter list of Defence
6 exhibits that are exclusively relevant to expert witness
7 Miladin Kovacevic. The Trial Chamber has heard Mr. McCloskey for the
8 Prosecution declaring that he -- the Prosecution has no objection to
9 this, to the granting of this motion. The Trial Chamber therefore grants
10 the motion and the Popovic Defence team is authorised to add the
11 documents mentioned or attached to the motion to the 65 ter list
13 Now, what is the problem that we wanted to alert you to? And
14 again, please try to understand that in dealing with this, we are not
15 trying to be finicky, we are basing ourselves on past experience.
16 In the present case, past experience is even more important
17 because we are dealing with a -- not just one or two accused but seven
18 accused with one Defence case coming immediately after or following
19 immediately after the other.
20 Without in any manner wanting to be interpreted as saying the
21 following within a context of equality of arms or parity of arms between
22 Prosecution and Defence, experience has taught us that a Defence team,
23 albeit the most organised of all Defence teams, doesn't have behind it
24 the structure that the Prosecution has. I know that the Tribunal offers
25 all the assistance that is required to bring in witnesses and do whatever
1 is necessary to procure the presence of witnesses here in The Hague, but
2 not everything depends on the Tribunal. Much depends on how early you
3 act, how long you cast your view in order to be able to plan properly,
4 problems that could arise, such as, for example, bad planning on the team
5 that has come before you, contingencies, you will I'm sure encounter
6 problems, you will find witnesses that have promised to come over but
7 which now have changed their mind and decide that they don't want to come
8 over and they tell you this at the 11th hour. We have encountered such
9 problems with the Prosecution, and irrespective of the fact that the
10 Prosecution is perhaps better placed to deal with these problems, and
11 irrespective of the fact that the Prosecution has got a better support
12 structure at its disposal, we still encountered problems and there were
13 days when we were faced with the following -- either of the following
14 situations. "Your Honours, we are finishing with this witness earlier
15 than expected, we are afraid we don't have any further witness for the
16 remainder of the week." Or, "Your Honours, a witness who we intended to
17 bring forward on Monday will not be coming and we can't make it in time
18 to replace the witness with another." And all this is understandable.
19 These are problems which unfortunately have arisen and which will
20 continue to arise. If the Prosecution has found itself in the
21 impossibility of finding a remedy to at least these two problems but
22 there are also others, I'm sure that the Defence teams will not be in any
23 better position. If anything, I think you will have more problems in
24 trying to sort out these problems. And the bottom line is that you need
25 to embark as from now on very careful planning, very careful planning.
1 You have witnessed what has happened throughout this year and a
2 half. We've had witnesses that were anticipated to last two days, three
3 days, in the witness box giving evidence, and who lasted half the time,
4 witnesses who lasted longer, and that is going to happen again, and there
5 is no way we can forestall that and avoid it unless we fix a maximum time
6 within which each testimony has to be concluded. But again, we have
7 tried to be as flexible as we could with you and we've tried to impose as
8 little time limits as possible. But we don't want that to be translated
9 into time loss. I was going to say wasting of time but I prefer to use
10 something more neutral because I'm sure that any such happening will not
11 be intentional but it would just be accidental. So our responsibility is
12 your responsibility. Together, we have a responsibility to show the
13 utmost respect to those that created this Tribunal and who finance this
14 Tribunal. There is no way we can remain passive to any loss unnecessary
15 or unavoidable loss of -- avoidable loss of time. So we need to make an
16 effort to move forward with the minimum possible loss of time.
17 For this, you need to plan. For this, you need to plan. And you
18 need to plan ahead because you may encounter problems with visa
19 requirements, if a visa requirement is required by the Dutch authorities.
20 You will recall we even had a problem with one witness coming here being
21 returned to Kenya
22 costs to the Tribunal. We have a responsibility to try and avoid these
23 things happening as much as possible. I'm not putting any blame on the
24 Prosecution for that occurrence. The Prosecution had done everything
25 within their power to get the witness here in time for his witness but it
1 did not materialise. So you need to do this as an ongoing exercise. We
2 very much enjoin you to do your utmost not to put us in a position where
3 we come on any particular day and you tell us, "We are sorry, but the
4 Dutch authorities," for example, "have not yet issued a visa to our
5 witness." Yes, I know that you require to have an approximate date for
6 the testimony of the witness before you can apply for a visa because the
7 visa will be also limited in time but this is why you need to do very
8 serious planning, very serious planning.
9 We are telling you this because I'm sure that you would want to
10 know that we are seriously concerned about this problem.
11 We would love to hear any suggestions that you may have on this
12 subject, but we have no words which are sufficient enough and strong
13 enough to reflect well the concern that we have in our mind. We know
14 that if you don't help yourselves in this, you will put the Trial Chamber
15 in a position when it will have to intervene, when it will have to
16 intervene. So forewarned is forearmed, but more than a warning, this is
17 an exhortation to you all to do your utmost when it comes to planning,
18 not to put the Trial Chamber in a position where it has to face a public
19 criticism for losing time unnecessarily or which would be avoided.
20 We'll have a 25-minute break now and we will reconvene
21 afterwards. Thank you.
22 --- Recess taken at 10.34 a.m.
23 --- On resuming at 11.02 a.m.
24 JUDGE AGIUS: Thank you. Recapitulating and before we move to
25 the next point, what we would require you to do, very briefly put, is
1 that each one of you examines the revised list of witnesses, make sure at
2 the earliest possible time, even tomorrow, if possible, of the
3 availability when they are available because what we certainly want to
4 avoid is coming here and finding an unpleasant surprise, which could be
5 restricted or limited to one particular, the same Defence team, or could
6 extend to the other Defence team. We don't want a situation where, for
7 example, Mr. Zivanovic, all of a sudden decides that -- and this
8 happens -- that it pays more his client to forget about the last two,
9 three witnesses, for one reason or another, we wouldn't go into that, and
10 renounces to those last two, three witnesses. What would be the
11 consequence then? What we don't want is to come here the following day,
12 with Mr. Ostojic and Mr. Meek, if he's still here, saying, "Sorry, we are
13 not in a position to start our case before another two weeks because we
14 were anticipating the Popovic Defence case to last two weeks longer."
15 This is what you need to avoid and I think it requires cooperation
16 amongst you, in other words team work, plus cooperation and careful
18 Now, I'm coming back to you, Mr. Zivanovic. You have -- you
19 don't need to stand up. You have shown an indication that you will be
20 requesting for two witnesses, at least, to testify via videolink. We
21 enjoin you to file the necessary motion at -- it's filed already? Thank
22 you. Because this requires time. In other words, they can't fix a
23 videolink from one day to the other. And these two witnesses are
24 scheduled to testify quite early in your Defence case, so you need to
25 liaise with whoever will help you with the videolink, if the motion is
1 granted, because we still have obviously to await the Prosecution
2 response and decide, but on the assumption, just for argument's sake that
3 it will be granted, you need to plan ahead. Missing expert reports you
4 have dealt with already. I don't need to bring them up again.
5 [Trial Chamber confers]
6 JUDGE AGIUS: In fact, Judge Kwon is rightly drawing to my
7 attention that I should ask you, Mr. McCloskey, if you could possibly
8 come back with your response to this motion in relation to videolink
9 testimony the earliest possible.
10 MR. McCLOSKEY: Yes, Mr. President. We will try to get it this
12 JUDGE AGIUS: Okay. Thank you. All right.
13 Very soon we will be deciding the Popovic motion for
14 certification following our decision granting the Prosecution motion to
15 reopen its case, which you are aware. We will be handing down a
16 decision, and according to what our decision will be, obviously you will
17 need, Mr. Zivanovic, to together with the Prosecution, possibly come back
18 to us with your proposal. I don't want to be interpreted as giving
19 beforehand an indication of how we will be deciding the motion for
20 certification but on the assumption again for argument's sake that we
21 will, there is the question that we also hinted at when we handed down
22 the decision granting the Prosecution motion, and we will do our utmost
23 to ensure that a fair trial is secured.
25 We are informed that in the course of the 65 ter meeting, a
1 question arose as to what will be the correct procedure to be followed
2 when expert witnesses are called and examined in chief by the party, by
3 the Defence team that has produced such witness. We are told that there
4 was a bit of an argument between the various Defence teams and the
5 Prosecution, the Prosecution maintaining that the other Defence teams
6 should first cross-examine the expert witness before the Prosecution is
7 asked to cross-examine him or her, while the rest of the Defence teams
8 took diametrically opposed position on this.
9 It is already planned that one or more of these witnesses will be
10 testifying very early into the Popovic Defence team, and we want this
11 issue to be determined before we start. So our decision today, which we
12 took yesterday, is to invite you to come forward with any submissions
13 that you wish to make on this issue now, and that would put us in the
14 position where we can either incorporate it in the guidelines that we
15 will be issuing shortly or decide it separately, if it requires to be so
16 decided. I do have an indication on who took part in the discussions
17 during the 65 ter meeting. I don't want necessarily to limit myself to
18 those of you who intervened. Would anyone of you wish to address the
19 Trial Chamber? Mr. Bourgon? Of course, you will have an opportunity to
20 address the Trial Chamber too, Mr. McCloskey, when it's over. Yes, go
22 MR. BOURGON: Thank you, Mr. President. First, Mr. President, I
23 would like to say that we believe that this issue affects not only expert
24 witnesses but in fact all witnesses who will testify as part of the
25 Defence case.
1 JUDGE AGIUS: You are correct, but the way it was put to us is
2 that during the 65 ter meeting, it was rather limited to the evidence of
3 expert witnesses. You are right, it applies across the board to all
5 MR. BOURGON: We take the view, Mr. President, as we mentioned
6 during the Rule 65 ter meeting that cross-examination should begin with
7 the Prosecution for the following reasons. Our most important
8 justification for this is that we take the view that it will best favour
9 the flow and the thorough presentation of the evidence before the
10 Trial Chamber. We believe that the Prosecution will necessarily adopt a
11 comprehensive approach to cross-examining any witnesses, bearing in mind
12 that the Prosecution will cross-examine in the light of the evidence that
13 a witness can bring against any of the co-accused in this case. That
14 being the case, we think that this will significantly shorten any
15 cross-examination by any of the co-accused that may follow thereafter.
16 And this will of course save a lot of court time. Our main consideration
17 here is that due to the exceptionally high number of co-accused in this
18 case, this would make things much shorter and much more effective.
19 Having the Prosecution go first will reduce the possibility of any
20 overlap. Once the Prosecution has conducted its cross-examination of any
21 witnesses, then the resulting cross-examination by any of the co-accused
22 should be able to have to limit any overlap and should assist the
23 Trial Chamber in controlling and limiting the resulting
25 Another argument that militates in favour of having the
1 Prosecution go first is to better protect the rights of the accused and I
2 say this in light of the numerous, if I can call it this way, theories of
3 Defence that co-exist amongst the co-accused in this case. So it is much
4 better in our view to have the Prosecution go first and then have the
5 co-accused take the second bite at the apple and terminate the
7 For all these reasons, Mr. President, we believe that and we
8 respectfully request that in your guidelines that will be issued for the
9 presentation of the evidence during the Defence case, that we simply go,
10 take the following approach, examination-in-chief, cross-examination by
11 the Prosecution, and then cross-examination by the co-accused who wish
12 and who may elect not to conduct any cross-examination once the
13 Prosecution has done its work. Thank you, Mr. President.
14 JUDGE AGIUS: I thank you, Mr. Bourgon. Anyone else wishes to
15 address the Chamber? Madam Fauveau?
16 MS. FAUVEAU: [Interpretation] Your Honour, I completely agree
17 with what my learned friend just said, what my colleague just said, and I
18 would also like to add that to proceed this way could also make it so
19 that the procedure will be faster and more efficient. It is quite
20 possible that the Defence after the cross-examination led by the
21 Prosecutor will request a recross-examination because obviously there
22 will be things that will come across only during the cross-examination of
23 the witness by the Prosecutor. So I believe in fact that this is the
24 procedure that would be the most efficient and this procedure would
25 protect the best the rights of the accused.
1 JUDGE AGIUS: Merci, Madam Fauveau. Any further contributions,
2 submissions? Mr. McCloskey?
3 MR. McCLOSKEY: Yes, Mr. President. I do not agree with this
4 approach. I think as we look at the expert witnesses, most of the
5 experts will be experts that are not impacting adversely on the various
6 accused. They will come at us with mostly a unified approach using each
7 other's experts to attack the Prosecution's case which is normal and is
8 what we expect and given that's the fact, the Prosecution should be able
9 to see where each Defence is coming from so that I can respond finally
10 after six
11 to all of them in one shot as opposed to Mr. Zivanovic brings out one
12 part of an expert that's for his case, I cross-examine, then Ms. Fauveau
13 brings out another part, I'm going to be able to, I would think, recross
14 on that so you're going to see me coming back and forth wanting to
15 respond to each individual Defence that's brought up something new.
16 I don't want to be in a position where I'm anticipating having to
17 cross-examine on all subjects. That's not my style and it won't be the
18 style of my team. We will be targeted to what we see the important
19 points are that are brought out in direct examination or perhaps lying
20 quietly in a report but I don't want to just design a cross-examination
21 to include everything that each defendant might bring up. That would be
22 an unreasonable burden to put on everyone because the cross-examinations
23 would be much longer. I think the more reasonable way is they bring out
24 what they need to bring out, I'll cross-examine on all of that, and of
25 course, they can have, if there is some issue, then they can individually
1 come back at the witness. And then it will hopefully be through at that
2 point. But if we take this different approach, I may have to come back
3 each time someone brings up something else.
4 Now, if we had a situation where one expert hammered a
5 co-accused, then we might want to take a little different approach for
6 that co-accused, but I don't see that happening often. I think they are
7 going to be unified effort and it's all going to be coming at the
8 Prosecution so we should just respond to it one time. You don't want me
9 jumping up and having to say, okay, I need to respond to that
10 cross-examination, I need to respond to that one, that one, that one, and
11 I will -- if it's a good cross-examination I will likely have to do that.
12 JUDGE AGIUS: I thank you, Mr. McCloskey. Yes, Mr. Bourgon?
13 Mr. Bourgon, while you prepare to reply to Mr. McCloskey, would you also
14 like to address maybe what has already happened in the past when you had
15 one expert witness who was a common expert and he testified here and the
16 same issue arose.
17 MR. BOURGON: Mr. President, in my experience -- what happened in
18 my experience, Mr. President, is that of course all examination-in-chief
19 if it's a common expert witness then, of course, all examination-in-chief
20 are done before the Prosecution does any cross-examination. To me that's
21 not even an issue. The issue is when do you conduct the
22 cross-examination? If two co-accused have different experts, and my
23 experience has been in other cases that first the Prosecution will go and
24 then the second accused would do the cross-examination. But I'm also
25 informed that in other cases, the different approach was taken. So I
1 don't think that there is a uniform approach before this Tribunal.
2 I believe, Mr. President, what is important is that we have to
3 look at the purpose of the cross-examination. It is either to attack the
4 credibility of the witness or to attack the evidence that he can provide
5 for the person who presented that witness. Now, if a co-accused does any
6 cross-examination, we do it for the exactly same purpose of the
7 Prosecution but, as a get-go, we are not the opposing party in this case
8 and the Prosecution should go first and if there are any resulting
9 issues, then the co-accused go at it. We think that this would save a
10 lot of court time and make it much easier for the Trial Chamber to
11 control the cross-examination time. Thank you, Mr. President.
12 JUDGE AGIUS: I thank you so much, Mr. Bourgon. As I said --
13 yes, Mr. Ostojic?
14 MR. OSTOJIC: Thank you, Mr. President. I think if the Court
15 even at the beginning of the trial reconfirmed to us that each of the
16 accused will be tried as if it was their separate case and the Rules
17 certainly afford for that, and that's Rule 82, and if you look and follow
18 the logic in my opinion of Rule 82 and that is an accused if he presents
19 evidence certainly we wouldn't have an opportunity in other proceedings
20 to cross-examine witnesses of other accused unless the case was joined.
21 This case was joined. Prosecution has the ability and the wherewithal to
22 cross-examine that witness. I think the approach that the Defence is
23 suggesting is reasonable, I think it's it in accordance with the Rules.
24 I don't see in the Rules anywhere that it suggests or supports the
25 position of the Prosecution that we should, as the accused, be allowed or
1 be even requested to cross-examine other accused's experts or witnesses.
2 I'm being tried on this case separately from my co-accused. They
3 can take a position adverse to me. It's what the Prosecution is charging
4 me with that I'm most interested in, not what my fellow accused may have
5 as their theory or charges that they may allege. I'm not answering those
6 charges but putting us in a position to cross-examine first, certainly
7 forces us to answer those charges as well. I think it's important to
8 know what the Prosecution is going to do, his cross-examination should
9 come first and it's absolutely in my opinion logical in accordance with
10 the Rules and the Court should allow the Defence to follow the
11 cross-examination of the Prosecution. Thank you, Mr. President.
12 JUDGE AGIUS: Thank you, Mr. Ostojic. Do you wish to comment
13 further, Mr. McCloskey?
14 MR. McCLOSKEY: Just lastly it's my understanding the other --
15 the Prlic and Milutinovic trials do it the approach that I'm suggesting
16 though I will try to confirm that. That will not be hard to confirm.
17 But I don't -- it's not -- in reading the way the Court has always
18 allowed the parties, you have always allowed us to deal with witnesses
19 and bring up either cross or redirect on issues that have not been
20 brought up before and so I would fully expect to you do that. If we do
21 it the way they are planning that means whenever a new issue is brought
22 up by a new cross-examination I will be allowed to respond and if I bring
23 up something else, they will be allowed to respond. In that way, I'm
24 jumping up and down all the time and that's just not going to work out
1 JUDGE AGIUS: I thank you, Mr. McCloskey. And Mr. Ostojic.
2 Mr. Bourgon?
3 MR. BOURGON: Just to --
4 JUDGE AGIUS: Let's conclude it here.
5 MR. BOURGON: The example brought up by my colleague is simply
6 something that in this case we have had this experience whereas there
7 were some cross-examinations conducted, there was a cross-examination
8 conducted by one of my colleagues which brought up some new areas, I
9 tried to intervene after and I was not given the leave by the
10 Trial Chamber because the issue had been dealt with before. So that
11 example that my colleague is bringing forward I don't think is relevant.
12 What matters is the evidence-in-chief is presented, the Prosecution does
13 what it has to do to undermine either the credibility or the contents of
14 the report, and if there is any resulting issues, then the co-accused do
15 it and then we'll save significant court time. Thank you, Mr. President.
16 JUDGE AGIUS: Thank you. As I said earlier on, we'll come back
17 to you with our decision which will be incorporated in the guidelines,
18 decision or ruling that we will -- we intend to hand down or separately.
19 Another topic that needs to be resolved and on which we do not
20 intend to sit much further. On the 9th of this month, the Prosecution
21 filed a confidential motion requesting us to order the Popovic Defence
22 team to provide sufficiently detailed summaries of 12 of his proposed
23 witnesses with a view to allowing the Prosecution to be in a position to
24 adequately prepare for cross-examination.
25 The Prosecution basically submits that these 12 witness summaries
1 manifestly fail to comply with the requirements of Rule 65 ter and
2 that -- the relevant jurisprudence on the matter and do not provide the
3 Prosecution with adequate notice of the facts to which the witnesses will
4 testify. Now, a few days later, on the 15th of May, Popovic and
5 Pandurevic filed their responses. And on the 19th May, the Beara Defence
6 team filed a motion joining the position taken by the Pandurevic Defence
8 Now, we asked Mr. Cubbon to raise this matter during the 65 ter
9 meeting which he did, and the -- you were invited to sit down, talk,
10 negotiate if necessary, and try to find a solution without the need for
11 Chambers to intervene in this matter. You were also asked that you will
12 be expected to report back to the Trial Chamber today of the outcome of
13 any discussions that may have taken place on this. So what we want to
14 know is whether there is -- whether there have been discussions and
15 whether there is an outcome that is worth hearing about.
16 Yes, Mr. McCloskey.
17 MR. McCLOSKEY: Mr. Zivanovic and I have had a chance to speak
18 briefly on this topic. We both have fundamentally different views and
19 his is held strongly, and he's made it very clear. I think the
20 fundamental difference is that they have provided us some information of
21 what the person is going to talk about, but nothing about the details.
22 In many cases nothing about the details. And we need the details. And
23 for an example, could we go into private session for a minute?
24 JUDGE AGIUS: Yes, sure. Let's go into private session for a
25 short while.
1 [Private session]
10 [Open session]
11 JUDGE AGIUS: We are back in open session. Yes, Mr. Zivanovic,
12 do you wish to add anything?
13 MR. ZIVANOVIC: Yes. I believe that we provided enough of
14 information to the Prosecution through our Rule 65 ter list.
15 JUDGE AGIUS: Stop there. Basically the conclusion is that there
16 is no agreement.
17 MR. ZIVANOVIC: Yes.
18 JUDGE AGIUS: Which means that we will be deciding the matter and
19 it will be decided before we start with your Defence case.
20 Yes, Mr. Haynes?
21 JUDGE KWON: Just a second, can we go back to private session?
22 JUDGE AGIUS: Yes, let's go back into private session for a short
24 [Private session]
11 Page 21521 redacted. Private session.
16 [Open session]
17 JUDGE AGIUS: Mr. Haynes?
18 MR. HAYNES: I don't want to add too much. I did actually take
19 it upon myself to try and broker some compromise here, I sent
20 Mr. McCloskey an e-mail at 5.00 on Tuesday after our meeting but it
21 didn't merit the courtesy of a response.
22 JUDGE AGIUS: It was bad timing.
23 MR. HAYNES: I looked with great interest at the Prosecution's
24 filing the other day in which it was able, notwithstanding the inadequacy
25 of the summaries to give pretty precise estimates for how long it's going
1 to cross-examine all these witnesses and I really rather thought that
2 gave the lie to the genuineness of this complaint.
3 I would hope we can sort this out. I've spoken to Mr. McCloskey.
4 As far as I'm aware he takes no issue with any of the summaries on my
5 65 ter list so I do not anticipate being the recipient of a motion of
6 this sort, doubtless 14 days before I'm about to start my case. But this
7 is a waste of time in my view. Where does it go? Let's suppose you do
8 decide Mr. Zivanovic has got to improve his witness summaries a little
9 bit and he does and that's still not to the Prosecution's liking. What
10 do they then do? File another motion? Ultimately there is no sanction.
11 We have got through this trial by dealing with questions of
12 disclosure on an informal basis and if Mr. McCloskey has got things he
13 needs to know from Mr. Zivanovic he can ask him and Mr. Zivanovic I'm
14 sure will tell him and we can get on with hearing the evidence. My
15 position, you know, on the merits of the motion is that you should not
16 grant the Prosecution the relief it sought. They know every witness in
17 this case very well. They've interviewed most of them. Very, very many
18 of them have given evidence and there is nothing they don't know about
19 what Mr. Krajisnik is about to say and they are thoroughly ready to
20 cross-examine him and all the other witnesses in Mr. Zivanovic's case.
21 MR. JOSSE: Sorry to interrupt, Your Honour, I'm afraid our
22 client is really feeling very, very unwell. He has been for much of the
23 morning. And we would ask for a short break.
24 JUDGE AGIUS: Yes. Of course. Had you told us before we would
25 have --
1 MR. JOSSE: Well, we waited for him to indicate when he was
2 really so unwell as to be able to continue. He's now done that.
3 JUDGE AGIUS: In addition, if General Gvero prefers to go back to
4 the Detention Unit, I think I can intervene to ensure that provided of
5 course that --
6 MR. JOSSE: Not at the moment, Your Honour. His general
7 well-being is something that we were going to address on his behalf a
8 little later in these proceedings.
9 JUDGE AGIUS: All right. Okay.
10 MR. JOSSE: But perhaps we could have a short break now --
11 JUDGE AGIUS: Of how long, Mr. Josse?
12 MR. JOSSE: I would suggest 15 minutes, please.
13 JUDGE AGIUS: All right. We will have a short break of 15
14 minutes and if you need more than that, Mr. Josse, will you come back to
15 us, please?
16 MR. JOSSE: Of course.
17 JUDGE AGIUS: Thank you.
18 --- Break taken at 11.38 a.m.
19 --- On resuming at 12.16 p.m.
20 JUDGE AGIUS: Yes, General Gvero, good afternoon to you.
21 THE ACCUSED GVERO: [Interpretation] I believe that I shall be
22 able to follow the proceedings to the end.
23 JUDGE AGIUS: Okay. We have every interest to make sure that you
24 feel comfortable in the course of the proceedings. If at any time you
25 need a break or you need to go back to the Detention Unit, we are here to
1 help you.
2 THE ACCUSED GVERO: [Interpretation] Thank you, thank you very
3 much for your interest.
4 JUDGE AGIUS: Thank you. Coming back to what we were discussing
5 before the short break, our position is as follows, Mr. Zivanovic and
6 Mr. McCloskey and Mr. Haynes and Mr. Beara for whatever it concerns you,
7 I mean, it's -- our preference would be not to decide this issue and this
8 is why we told you to try and sit down around a table and discuss. It's
9 unfortunate that you have not come to an agreement. However, there may
10 be a reason for that, and while we were sitting outside on the terrace
11 waiting for the sitting to resume, we talked about it and we believe that
12 if we give you an important guideline and invite you to have further
13 talks, further discussions amongst yourselves, that could possibly be
14 conducive to an agreement. And the guideline is the following,
15 Mr. Zivanovic. We do not believe that the purpose of the Rule that
16 applies is to obtain from you an indication of the subject matter that
17 the witness will be testifying upon. That would not be enough. What is
18 required from the Rule is more than that. What is required from the Rule
19 is an indication of areas and facts that will be dealt with by the
20 witness and possibly the manner in which they will be dealt with, if you
21 are aware of that.
22 So -- and you move from there. You move from there. It's true
23 that the whole issue is plagued with problems and that is particularly
24 why we would prefer you to come to an agreement rather than have us
25 decide the issue. So we are inviting you to sit around a table again and
1 discuss what applies to one witness may not apply to another and if you
2 engage into a proactive discussion and exchange of ideas amongst
3 yourselves, you would probably get a better result than if you put us in
4 a position where we have to decide the issue ourselves.
5 So we will be deciding the issue later on, if you don't come to
6 an agreement. That is the position.
7 Now, next item is -- there is very little I have to say about
8 this, Rule 92 bis, 92 ter motions, the Beara problem we have dealt with
9 already, but there is still the Popovic motion that requires a response
10 from you, and since the Popovic Defence team will be first to go, we
11 would appreciate, Mr. McCloskey, if you could come back to us with your
12 response the earliest possible. It will allow Mr. Zivanovic to plan
13 better and us to take stock of the situation and what to expect.
14 MR. McCLOSKEY: Yes, no problem. The Popovic case is our biggest
16 JUDGE AGIUS: Thank you. There is also a motion from the
17 Beara Defence team, while we are at it, the Beara Defence team, I
18 referred to it earlier on this morning, has filed a motion not to reduce
19 the amount of witnesses but to add further witnesses to the 65 ter list,
20 namely four additional witnesses. Unless you are in a position to give
21 us your response to this today, we also enjoin you to come forward with
22 your response the earliest possible, Mr. McCloskey.
23 MR. McCLOSKEY: Given that it's so early at this point, the
24 Prosecution does not object.
25 JUDGE AGIUS: Okay. So the motion is granted, with the
1 understanding, Mr. Ostojic, that these four witnesses will be included in
2 the total exercise, the whole exercise, in a holistic manner, expecting
3 from you a serious -- which I don't doubt -- a serious attempt to try and
4 reduce the Defence, the Beara Defence case significantly.
5 We've had the -- over the past two months, an exchange of
6 motions, responses, replies, counter-motions, dealing with the correct
7 meaning of the Serbo-Croat word "rukovodjenje," whether it means control
8 as against managing. I think you are all aware of the exchange that has
9 taken place. We are taking a position on this today, and we are
10 informing you accordingly. We have a CLSS translation of Exhibit 407,
11 Prosecution Exhibit 407 and Prosecution Exhibit 3032. And we are
12 admitting the relative document as is. This will leave, of course,
13 unprejudiced the issue of the correct translation of the Serbo-Croat word
14 which I will try and repeat, "rukovodjenje." We will leave it
15 unprejudiced, in other words, this will remain a matter for the
16 forthcoming evidence. We are sure we are going to receive evidence on
17 one version or one interpretation and other evidence on another
18 interpretation. We'll hear what you have in store for us and then we
19 will give due weight to what information we receive and decide later.
20 In other words, for the time being, we are putting you on notice
21 that we will not be deciding any of the motions and counter-motions that
22 we have had on the subject matter. We believe that this is a matter that
23 is best left to the evidence that we will be hearing in due course.
24 Yes, Mr. McCloskey?
25 MR. McCLOSKEY: In the event that it may simplify that is that
1 the Prosecution's position is not that control is a term of command and
2 so just to make that clear, and so the difference between control and
3 management may be an interesting debate but we are -- have never
4 suggested that control is a function, a direct function, of command.
5 Just so that's clear.
6 JUDGE AGIUS: Thank you for that. I'm sure that your
7 counterparts, your colleagues, on the Defence side will take that into
8 consideration, even though it has already been stated in some of your
10 Now, during the 65 ter meeting, there was an issue that was
11 raised by you, by the parties, rather than by Mr. Cubbon, and that is
12 disclosure obligations under Rule 67. We are aware of the debate that
13 took place and the respective positions taken by Prosecution and some of
14 the Defence teams, particularly one Defence team, that's the
15 Miletic Defence team.
16 Yesterday, the Prosecution filed an urgent Prosecution motion for
17 disclosure under Rule 67(A)(ii), basically Prosecution is requesting the
18 Trial Chamber to order Defence counsel to provide full disclosure
19 pursuant to Rule 67, the same subrule, no later than the 26th of May,
20 2008. There are two options. We either hear submissions that you may
21 have today from the Defence teams in a brief manner, or else we will
22 reduce the time limit within which you have available under the Rules for
23 filing a written reply. I don't know what you prefer. Either of the two
24 is fine with us. But this matter has to be decided because we are
25 talking of a deadline that is pretty much near and we are running short
1 of time.
2 Madam Fauveau, I'm calling upon you, if you wish to address the
3 Trial Chamber.
4 MS. FAUVEAU: [Interpretation] Yes, Mr. President. I can do it
5 now, if this is convenient for the Chamber, of course.
6 JUDGE AGIUS: Yes, go ahead.
7 MS. FAUVEAU: [Interpretation] Since the Prosecution motion
8 concerns paragraph 2, only to obtain documents applying Articles --
9 Rule 67(A)(ii), my objection will be also limited. The only objection I
10 have for the moment is that it is about a matter of principle because as
11 far as I'm concerned, all the statements of witnesses I have communicated
12 to the Prosecution, according to this rule, Defence has the obligation to
13 give one week before the presentation of its -- those declarations for
14 the witnesses which are quoted and this is about the date, what is the
15 date for the Defence? We consider that for General Miletic, we will
16 start our own presentation, that is for General Miletic, we do not
17 consider that the Defence of General Miletic will have the presentation
18 of its case on 2 June but it will be the other one which begins. As for
19 the prosecutors, this is only a matter of principle because we
20 transmitted all the statements, it is only an objection concerning the
21 date. Now, maybe I am jumping a bit the gun but if the Prosecution
22 intends to put a motion by Rule 67(A)(ii), 67(A)(i) concerning copies of
23 books, documents, which the Defence has or which can control, our
24 position will be different and we will consider that this part of the
25 Rule does not apply in the present case because it's unfavourable to the
1 accused. The Article was modified during the case, during the trial, and
2 since it is a Rule which is unfavourable to our client, we will oppose.
3 If such a motion is put. I do not wish to develop and take more time now
4 on this question because the motion of the Prosecution -- there is no
5 motion of the Prosecution under 67(A)(i).
6 JUDGE AGIUS: It would help us to know how you consider it
7 adverse to the accused when it's limited to pieces of evidence that is
8 intended to be brought into the record, because you see that copies of
9 statements, if any, of all witnesses whom the Defence intends to call to
10 testify at trial, and copies of all written statements, et cetera, which
11 the Defence intends to present at trial. Copies of, et cetera, how does
12 it become prejudicial to --
13 MS. FAUVEAU: [Interpretation] Mr. President, I don't consider
14 that part of the Rule is unfavourable. It's the reason why I said that
15 as far as paragraph 2, my objection is only about the date, but if the
16 Prosecution intends to present another motion, in that case, yes.
17 JUDGE AGIUS: All right. Thank you. Yes, Mr. McCloskey?
18 MR. McCLOSKEY: Your Honour, as we can all tell from this motion,
19 this motion does not require the Prosecution -- or this Rule does not
20 require, nor anticipate, the Prosecution has to file a motion. It says
21 the Defence shall. The only reason we filed the motion for (ii) in this
22 case is because we got fair indication from them that they weren't going
23 to provide us with statements and in fact there were many statements we
24 didn't have. I had assumed they would be following (i) and that hadn't
25 become a problem yet, but I will amend my motion verbally now to include
1 (i) for them to provide documents if that's what it's going to take, I
2 see she has made her position clear on that. I didn't think I would have
3 to file a motion on that but I obviously do. It's not of course true for
4 all accused but it is -- it is something that should be worked out at
5 this point. I think it will solve problems later.
6 JUDGE AGIUS: I thank you, Mr. McCloskey. Madam Fauveau? And I
7 also -- do you wish to address the Chamber, Mr. Haynes?
8 MR. HAYNES: Yes, I think it might be convenient if I do it now.
9 I know what my obligations are under these Rules. And I have every
10 intention of complying with them. And I don't see what basis has been
11 raised by the Prosecution for the making of an order against Defence
12 counsel that they shall apply with their lawful obligation under the
13 Rules. This motion has absolutely no basis whatsoever. The date for
14 compliance has not yet passed. It would be quite another thing if the
15 Prosecution were coming here and saying, Mr. Haynes has failed to
16 disclose material which we know he has. But there is no basis for the
17 Prosecution to apply for and for you to make an order that the Rule shall
18 be complied with. There is no basis for suggesting I'm going to break
19 the Rules. This is completely ahead of the gun.
20 JUDGE AGIUS: Thank you, Mr. Haynes. Madam Fauveau? And then
21 you, Mr. Bourgon.
22 MS. FAUVEAU: [Interpretation] Mr. President, because of the
23 answer of the Prosecution, I would like briefly to say why I feel that
24 this modification of the Rule concerning the little A is disfavourable to
25 the Defence. First of all, for me, it's not very clear, I don't see what
1 this Rule actually refers. If it's documents which we will present
2 during examinations, direct examinations, those of 65 ter, of course we
3 have an obligation to disclose to the Prosecution, that's what we have
4 already done. On the other hand, if it's about the documents which we
5 intend to use during other examinations or other witnesses of the
6 Defence, this Rule then clearly is disfavourable to our client because
7 the Prosecution has no such obligation, and in this procedure will be
8 using this during the examination. So they will have presented their own
9 argument about documents which were not communicated to us and if this
10 Rule is applied to the Defence as it is written here, and if it has to
11 subsume all the documents for the Defence at any stage of the
12 proceedings, then one may wonder whether the Prosecution did disclose all
13 the documents which he intends to use in these proceedings, in particular
14 during the counter-examination, cross-examinations of our witnesses.
15 JUDGE AGIUS: Thank you. Mr. Bourgon?
16 MR. BOURGON: Very quickly, Mr. President, to join the opposition
17 to the motion by my colleague Mr. Haynes but also to add that the motion
18 in our view is premature. However, the timing might be right and the
19 guidelines that the Trial Chamber will issue to confirm that the
20 Prosecution should give us ahead of time any documents they intend to use
21 in cross-examination of our witnesses. Thank you, Mr. President.
22 JUDGE AGIUS: Thank you. Yes, Mr. Meek?
23 MR. MEEK: Mr. President, Your Honours, the Beara Defence team
24 agrees and we join.
25 JUDGE AGIUS: Thank you, Mr. Meek.
1 So we will decide that in due course. Yes, Mr. Haynes --
2 Mr. McCloskey?
3 MR. McCLOSKEY: Yes, Mr. President. It's my understanding that
4 some Defence counsel feel that this Rule doesn't even apply because it
5 was enacted after the Prosecution started. We are getting very close to
6 the beginning of the Popovic case, we don't have the statements from him,
7 so this Rule is ripe in the case of the first accused, and this week
8 time-limit that is suggested is a bare minimum and that I would of course
9 ask you to consider that we get material prior to that.
10 JUDGE AGIUS: Yes, Mr. Zivanovic?
11 MR. ZIVANOVIC: We enclosed all our statements to our motions, as
12 far as I know.
13 JUDGE AGIUS: Are you making a statement to the effect that both
14 under the first paragraph and -- in other words -- and the second
15 paragraph, there is no further documents that need to be disclosed? Is
16 that your position?
17 MR. ZIVANOVIC: It is my -- just a moment.
18 [Defence counsel confer]
19 MR. ZIVANOVIC: We have just a CD with the [indiscernible]
20 attached to the report of Mr. Miladin Kovacevic.
21 JUDGE AGIUS: Have you had a request by the Prosecution to
22 inspect and copy any books, documents, photos that --
23 MR. ZIVANOVIC: I haven't got any specific request for any
24 documents, book or anything else.
25 JUDGE AGIUS: Yes, Mr. McCloskey?
1 MR. McCLOSKEY: It's not my practice to bring up e-mails but I
2 do -- I did make a Rule 67 request to everyone and I do have some 92 bis
3 statements from Mr. Zivanovic, and the Kovacevic statement but as for
4 some of these witnesses, many of them I have no statement and if there is
5 no statement then I would hope to be told that.
6 JUDGE AGIUS: But that's -- you have a responsibility under the
7 Rules, Mr. Zivanovic, we are not here to preach what your
8 responsibilities or duties are. Make sure that they are all observed
9 because there will be consequences otherwise, as there were in other
11 JUDGE KWON: Mr. McCloskey, the request you made is based on
12 Rule 67(A)(ii), not 67(A)(i) which provides for the inspection by you.
13 MR. McCLOSKEY: I will have to go look at my e-mail, if it was
14 done properly I would have asked for both. Actually it's right here so
15 I'll be able to --
16 [Prosecution counsel confer]
17 MR. McCLOSKEY: Yeah, I asked for 67(A) which would include both.
18 JUDGE KWON: Inspection by the Prosecution of the documents which
19 is in custody of the Defence for the use at the trial?
20 MR. McCLOSKEY: Yes. This is a request pursuant to Rule 67(A)
21 that you provide to the Prosecution copies of all statements of all
22 witnesses whom you intend to give evidence at trial including live
23 witnesses, 92 bis, quater. We also request that we be allowed to inspect
24 and copy any books, documents, photographs, intangible objects -- sorry,
25 I'm sure I'm going too fast -- in your custody or control which are
1 intended for use as evidence at trial. Alternatively, if it's more
2 convenient, you can provide us with copies of this material.
3 And it goes on. And that was 10 April.
4 JUDGE AGIUS: Okay. Independently of the principle which may or
5 may not be involved that Madam Fauveau referred to what I suggest is
6 this, Mr. Zivanovic, if you could follow what I'm saying, I'm saying that
7 irrespective of the principle and the rest of the debate on whether there
8 is a principle and to what extent and how it should be applied and
9 whether the Prosecution motion is a timely one or not, I mean, bypassing
10 all these issues, what I suggest is that now that the matter has been
11 raised, why don't you sit down again with Mr. McCloskey and should there
12 be other material that may or should have been disclosed and hasn't been
13 disclosed or material that Mr. McCloskey wants to have access to pursuant
14 to either the first or the second paragraph, that you try to thrash this
15 in an orderly manner. I see that in this issue there is good faith on
16 both sides, there is not a question of someone trying to evade one's
17 responsibility. This is not the case. So what I suggest is that you sit
18 down together and try to thrash this out. In the meantime, the rest of
19 the issues can be postponed and will be decided if there is an ad hoc
20 request for the matter to be decided. Yes, Madam Fauveau?
21 MS. FAUVEAU: [Interpretation] I don't want to be misunderstood by
22 the Chamber, by the Prosecution. As far as General Miletic, we don't
23 have other documents than those which any way are in the e-court --
24 electronic disclosure system but I think this Rule should not apply if
25 maybe somebody has another document but there is another Rule, Article --
1 Rule 66(B) which gives the same obligation to disclose to the Prosecution
2 but only on the request of the Defence. So I'm sure that, at the moment
3 this case was prepared, several teams of Defence elected not to make this
4 request because there was no obligation. Now we have this obligation and
5 this puts us in an unfavourable position.
6 JUDGE AGIUS: All right. But in the meantime I think the matter
7 can be dealt with in the way suggested because what's urgent about it is
8 the Popovic Defence case. If there is a need to go deeper into the
9 matter and decide it from the legal aspect or from some other aspect of
10 course we will do that later on but in the meantime we need to be
11 practical and pragmatic in our approach and what I have suggested I think
12 should be stomached well by the Prosecution and Mr. Zivanovic.
13 Mr. Bourgon.
14 MR. BOURGON: Thank you, Mr. President. Just like to say that
15 the -- it is our position that the contents of Rule 67(A)(i) has been
16 rendered moot by Rule 65 ter. Any documents that we had that we intend
17 to use were put on our list and were given to the Prosecution. If we
18 find something else between now and the witness appearing, of course we
19 will give it to the Prosecution. We are fulfilling our obligations.
20 This 67(A)(i) has been rendered moot. As for the other one, we are in
21 contact with the Prosecution and we are disclosing our statements in the
22 same manner. Thank you, Mr. President.
23 JUDGE AGIUS: That may well be the case, Mr. Bourgon, but let's
24 see whether these will be pleasures yet to come in which case we will not
25 shy away from deciding the issue.
1 The only other things we have on our agenda, is the state of
2 health of the accused and basically nothing else, unless you wish to
3 raise any other matter arising from the 65 ter meeting or independently
4 of and beyond or beyond the 65 ter meeting. Mr. Josse?
5 MR. JOSSE: Well, the issue that we wish to raise and which we
6 alluded to earlier really does relate to our client's well-being.
7 JUDGE AGIUS: Do you wish to deal with this in open session or in
8 private session?
9 MR. JOSSE: In open session, please, Your Honour.
10 JUDGE AGIUS: All right. Go ahead.
11 MR. JOSSE: And the reason we want to put this on record is that
12 it may have a consequential impact on this trial and we felt it
13 appropriate to mention it at this Pre-Defence Conference.
14 General Gvero was very grateful to the Trial Chamber in granting
15 his application for provisional release. It goes without saying that I'm
16 instructed to emphasise that he was bitterly disappointed by the ultimate
17 decision of the Appeals Chamber reversing the period of release that had
18 previously been granted to him. His lawyers, Your Honours, of course
19 appreciate that there is nothing that can be done about that by this
20 Trial Chamber. And we have explained that to our client. He fervently
21 believes that the standards, that is the law, in effect, in relation to
22 this particular issue, has changed and putting it colloquially, it's his
23 view that the goal posts have changed during the course of this trial and
24 that has affected him in a number of ways and I repeat, he is bitterly
25 disappointed about the end result. He feels in effect that he's been
1 caught in a trap because having voluntarily surrendered, he initially
2 faced an indictment with simply two other men, and he anticipated a
3 relatively short trial. He was then joined to the five other men who now
4 sit with him in the dock of this Court. That of course had a
5 consequential setback in terms of the time this trial was going to take.
6 He was of the view that that setback was greatly compensated by the fact
7 that hitherto, he had regular periods of provisional release which was
8 important to him for a number of obvious reasons, not least for his
9 general well-being.
10 He has spent the last three months, like his six co-accused, I'm
11 bound to say in passing, in custody. He is in extremely low spirits, not
12 to say upset. Commenting on that, it's an obvious comment, of course he
13 had the anticipation that he thought he was going to be released although
14 he knew that the appeal was pending. He hoped the appeal decision would
15 go his way, it didn't, and it has literally put him into a state of some
16 despair, frankly. For the most part Mr. Krgovic has been dealing with
17 that, being the B/C/S speaker in our team.
18 General Gvero, prior to today's episode, had asked me to say that
19 he is extremely concerned that he will be able to follow this trial on a
20 daily basis. He certainly gave the appearance today of being unwell and
21 in the end the trial was for a short period of time disrupted.
22 The prospect of this trial lasting well into the future, as now
23 appears the case based on the various 65 ter submissions that the
24 Trial Chamber has received, is one that clearly concerns him and his
25 lawyers greatly. He is, to state the obvious, 70 years of age. He's the
1 oldest accused presently on trial at this Tribunal. As I am aware, the
2 Trial Chamber knows that he suffers from various different ailments and
3 illnesses and he takes a considerable amount of medication to try and
4 ease those. Where this leads, Your Honour, apart from the fact that he's
5 asked me to make this clear to the Trial Chamber and we are grateful that
6 the Trial Chamber, in effect, wanted to hear about the well-being of each
7 of the accused and in that guise I'm making this submission as well, but
8 where it leads is, as best it can, we can only ask the Trial Chamber to
9 take this into account in it's scheduling considerations in the coming
10 weeks and months. He will do his best, that is our client, to follow
11 this trial, to be here on a daily basis but he is concerned and he is in
12 a very low state of well-being at the moment because of the reasons that
13 I've alluded to and this Trial Chamber are only too well aware of.
14 JUDGE AGIUS: Thank you, Mr. Josse. Does -- do you wish to
15 respond to that?
16 MR. McCLOSKEY: We have no objection to moving his case up front
17 and making -- there are arrangements that can be made for people that are
18 not well, that are in the jail, as we know from other cases but we have
19 no objection to moving it up front, if he wants to get it going, we'll go
20 with him on that.
21 JUDGE AGIUS: He will still have to await the outcome of the
22 other trial -- the whole trial anyway.
23 MR. JOSSE: I don't think that would be a remedy at all.
24 JUDGE AGIUS: All right.
25 [Trial Chamber confers]
1 JUDGE AGIUS: Mr. Josse, your words were words of wisdom, and as
2 I made it clear already, we will certainly take into account -- take them
3 into account. We of course agree with you completely that the present
4 situation as it arises is what it is. However, that's what the
5 circumstances are now. They can change. And if they change, of course,
6 we will take that change into consideration and take whatever decisions
7 may become necessary, but for the time being, you appreciate that the
8 situation that you are faced with is the situation that we have. But we
9 will, of course, take into account the concerns that your client has and
10 that you have so capably aired.
11 MR. JOSSE: We, that is his lawyers, really do understand that.
12 I'm sure that General Gvero does as well, Your Honour. He realises that
13 the situation, as Your Honour rightly puts it, is the situation that we
14 face and there is nothing very much that can be done about it but I'm
15 sure your words will be of some comfort and I hope support to him in the
16 time to come.
17 JUDGE AGIUS: I thank you, Mr. Josse.
18 Does anyone else wish to address the Chamber on health issues?
19 All right. Do you wish to address the Chamber on anything else,
20 Madam Fauveau?
21 MS. FAUVEAU: [Interpretation] Yes, Mr. President. It's about the
22 scheduling. We have been informed that the recess this summer will be
23 two weeks, and discussing first about the conference 65 ter, I did not
24 ask for an extra week. I certainly said that we have somebody -- we have
25 several teams for the Defence who will be preparing their case, and some
1 of us mean we will have no holidays at all. After this conference,
2 discussing with other colleagues, I think even with the Prosecutor, I'm
3 not saying that he was in agreement with me, I feel that everybody thinks
4 that two weeks is much too short and that indeed having only two weeks,
5 this might cause more problems than advantages because I think that
6 indeed it's very important to be well prepared and it is also necessary
7 to be in a position at least to have a little pause because it's true
8 that we have three months now to prepare the 65 ter lists, but I have to
9 own up that as far as I'm concerned, me and my team, we have had
10 practically no vacation during that period, in particular for the team
11 who was working in the field practically all the time. Therefore what I
12 would like to request is to take into consideration whether it wouldn't
13 be possible to have three weeks this summer or another solution, I'm not
14 quite sure how this could be done, how will this trial continue, are we
15 going to continue on the same basis during the evidence, presentation of
16 evidence by the Prosecution, or every four weeks will we have one week
17 for a pause or?
18 I will be extremely grateful if you could give us some
19 indication. Other solutions, as far as I'm concerned, and some of my
20 colleagues think is maybe too complicated. Really, it has to be only two
21 weeks in August which I understand because of other considerations which
22 you have to take into account, would it be possible to finish a week
23 before on a Thursday and to start the trial on a Tuesday? Because this
24 would then allow us to have a little more time.
25 JUDGE AGIUS: Yes, anyone else? Thank you, Madam Fauveau.
1 Yes, Mr. McCloskey?
2 MR. McCLOSKEY: Yes, Mr. President. I had assumed we would have
3 had three weeks, that we were going to get a week at the other end of
4 August, and in looking at the e-mails I see that I am wrong, so I would
5 join Ms. Fauveau's request for a -- the length, the normal length, of the
6 summer break. And she made brief reference to the fact that in the
7 Prosecution's case, the Court took regular breaks for us to be able to
8 organise our case and adjust and I just want to emphasise how critically
9 important those breaks were for the Prosecution to be able to do just
10 that, to help organise the number of witnesses that were coming, and to
11 have a time where -- both an end time where they would be finished and a
12 beginning time where they would start again. That was absolutely
13 essential for us with the number of witnesses we had to put on to make
14 this as smooth-running as we could. It also, as you know, was very
15 helpful for everyone to have some break and I think in the long run, this
16 has been a much more smooth-running trial than it would have been without
17 that break which was initiated as you know by the Court originally and
18 fully agreed to and worked out very well, I think, on all accounts, and I
19 think this is one issue that everyone in the room agrees with.
20 JUDGE AGIUS: Yes. Thank you, Mr. McCloskey. Anyone else? I
21 suppose your silence means you agree with Madam Fauveau. You don't need
22 to stand up. I mean, I take it that you all agree.
23 The position is as follows. First of all, you may have been
24 informed by Mr. Cubbon that we think there should be two days in July
25 when we will not sit, namely the 17th and 18th of July. We have revised
1 that. We will be sitting on those two days, the 17th and the 18th of
2 July, but we will not be sitting on the 14th and the 15th of July. So I
3 would like you to make a note of that.
4 Our problem is the following, and before I try to explain it, let
5 me assure you that we have not made our minds on this, except insofar as
6 the -- we have a scenario that we haven't created ourselves, but a
7 scenario that has -- presents itself as a result of the 65 ter filings,
8 which basically means that for examination-in-chief alone, we are talking
9 of 420 hours. Add to that the time, giving a conservative estimate of
10 50/50, which would be required for cross-examination, we are in the
11 region of 1.000 hours because in addition to the Prosecution
12 cross-examination, we have to allow also for cross-examination amongst
13 the various Defence teams, plus time required for procedural issues and
14 there will be several and a little bit of time which we usually take
16 That is alarming. And I hope you will agree with me that that
17 scenario creates problems for us, creates multiple problems. We want to
18 ensure that each one of you will have full opportunities to present your
19 respective case, Defence case, adequately, according to due process laws
20 and that there is a fair trial throughout. That is a concern that we
21 have, something that we believe in, and I'm sure that in that we are on
22 the same level.
23 At the same time, we cannot allow a situation to obtain where you
24 had already consumed, used, over 400 -- 466 hours in cross-examination
25 during the Prosecution case, another 420, a conservative estimate because
1 it could go beyond that, for the examination-in-chief, plus time that you
2 are entitled to cross-examine the other Defence witnesses and experts.
3 It's a difficult scenario and we would like you to appreciate that we are
4 not happy with the situation.
5 It is definitely our intention, Mr. McCloskey, that if this trial
6 has run smoothly, we will do our utmost, with your help, to continue
7 making it so. We do understand and appreciate and some people in the
8 public or elsewhere who may have -- keep a watchful eye on the Tribunal
9 might think otherwise, that the three months that we have had between the
10 end of the Prosecution case and the beginning of the Defence case, has
11 not been a holiday for any of you. You bombarded us with motions that we
12 had to decide. None of us could take a break, a decent break, because of
13 precisely of the amount of motions. That meant that you were working, in
14 addition you were doing your investigative work in order to compile your
15 list of witnesses, interview them and prepare. We are fully aware of
16 this. And we have no intention to make things worse.
17 Three months have been made use of. To an extent, they have
18 produced results. They have not however produced the results that we had
19 hoped for. You may not see it the same way we do. But that's the way we
20 see it. And therefore, we need to meet halfway, to ensure that the
21 scenario that we see ourselves working in is such that would allow us to
22 take into consideration, to take into stock, your complaints and your
24 You will understand that the scenario becomes complicated, for
25 example, because when I look at these tables and these calculations, even
1 with all good intentions and expectations that each one of you will
2 succeed in reducing your respective Defence cases, still I get statements
3 like the one I got from Mr. Haynes earlier on this morning, that -- to
4 the effect that he expects, and Mr. Haynes is not one lawyer who just
5 throws statements without any -- having given them serious thoughts
6 before, but he suggests that he thinks, he believes, that he will be
7 starting his Defence case approximately before the end of this year. And
8 my question is: Are you prepared, all of you, to make a commitment that
9 by the end of this year, or latest end of January, all the seven Defence
10 cases will be over and done with, will be finished? Because if you're
11 prepared to make such a statement, then perhaps the language that I am
12 using, the approach I'm taking, will also change.
13 I know that you are going to work on this idea of trying to
14 reduce the Defence case each one of you has been working so hard upon.
15 So the position I am taking, after having consulted with my
16 colleagues and having also seen the tentative chart -- not chart, table
17 or schedule that you have presented us with, is that we are prepared to
18 give it a very serious thought. We don't want to draw blood from anyone.
19 We know that at the end of the day, you can take the horse to the stream
20 but you can't make the horse drink. So our position is that we will do
21 our utmost to try and accommodate you as problems become acute, and they
22 are bound to become acute as we go along, but at the moment, not knowing
23 exactly where we stand with you, and having this sort of confusion in our
24 mind that on one side we have an estimate of hundreds and hundreds of
25 hours, possibly total of 1.000 hours, at the same time someone saying
1 that he hopes, and he is the last one to go, that he will be ready to go
2 and should be going end of this month [sic], that's all very confusing to
3 us. We need more information. We need to have the situation crystallise
4 in the clearest way possible, and then you will have a response from us
5 which we hope will be conducive to a continuation of the case in a smooth
6 and respectful and practical pragmatic manner that we have endeavoured to
7 keep it so far.
8 There are problems and the problems need to be solved. We are
9 not in a position to solve these problems on our own. We can of course
10 impose deadlines, we can impose, we can cut down on the number of
11 witnesses, we have all the powers that I referred to you -- referred you
12 to earlier on during today's meeting. Our preference would be for you to
13 see more sense into the issue. This is not a problem that we have
14 brought on ourselves ourselves, but it's a problem that we are not
15 blaming you for because presumably each one presented and organised,
16 planned, the Defence case independently of others and not necessarily
17 knowing the expected length of cases of others. Some of you have been
18 extremely reasonable but that doesn't apply across the board. We expect
19 further news from you, and then we decide.
20 As far as the summer recess is concerned, I was noticing,
21 studying this this morning, here there isn't an indication to extend the
22 two weeks into three weeks, as was planned originally. Here, in the
23 suggested schedule, the summer recess runs from the 4th up to and
24 inclusive of the 15th of August which would mean resuming on the 18th of
25 August. I don't think we will be able to move on that. I don't think we
1 will be able to move on that. But if we see improvement, significant
2 improvement, in the scenario that I have been referring to, of course we
3 are prepared to discuss further with you and see where we can fit in
4 breaks when they are really needed, and if they are needed.
5 One thing that I disagree with Mr. McCloskey about is that it's
6 one thing talking of one Prosecution case that starts and continues.
7 Here we have seven Defence cases. So although it is true that while the
8 Popovic Defence case is on, the other Defence teams are going to be
9 engaged, they are not going to be engaged the same way you were engaged
10 all the way when you were dealing with your case. There is a difference.
11 They will be engaged and of course everyone needs a break, but for the
12 time being, please don't ask us to be categoric and give you a
13 straightforward answer, if and to what extent, and when, we would be
14 granting any breaks. We need to move ahead. We need to move ahead in a
15 fair manner, which will guarantee you your full rights, not under -- not
16 just under the Statute and under the Rules but under international human
17 rights law, which we can guarantee you all the way.
18 All right. So the sooner you can come back to us with what the
19 situation is more like the situation is going to be, and the sooner we
20 are in a position to determine the Rule 92 bis and 92 ter motions that
21 will -- that are already in place and will be forthcoming, the sooner we
22 will be able to tell you when we can have a rest, which I'm sure will be
23 well deserved because you are a hard-working lot and the way you have
24 managed to keep us busy during these three months is remarkable, and also
25 indicative that you haven't been sleeping or idling, you have been
1 working, you have been working hard.
2 Thank you. Is there any other matter that you would like to
4 There being none, I bring this Pre-Defence Conference to an end.
5 On the 2nd of June, we will start with your Defence case. Be prepared
6 with your opening statement, Mr. Zivanovic, and also your first witness.
7 One thing I wanted to make sure, there are no protective measures in
8 place for your -- for Krajisnik, is there?
9 MR. ZIVANOVIC: No, not for the time being.
10 JUDGE AGIUS: No, because Mr. Haynes mentioned him in open
11 session and I want to make sure that we were not doing something
12 irregular. At the same time, please also make all your arrangements to
13 make sure that he is available for evidence and have other witnesses in
14 line present here in The Hague
15 shorter than you think, Mr. Zivanovic.
16 MR. ZIVANOVIC: This is for Krajisnik, for Mr. Krajisnik?
17 JUDGE AGIUS: Yes, yes.
18 MR. ZIVANOVIC: I don't know right now, because I have to meet
19 him this week or next week, and then I will be able to give a more
20 accurate estimate.
21 JUDGE AGIUS: You have his undertaking that he will be giving
22 evidence. I hope you have that already. Because if you don't have, you
23 need to prepare for that eventuality.
24 MR. ZIVANOVIC: Yes.
25 JUDGE AGIUS: This is what I meant earlier on.
1 So do you wish to make further submissions? Thanks. And
2 Mr. Zivanovic and Mr. McCloskey, please try to meet on the outstanding
3 issues that you have. We would very much appreciate if you put us in a
4 position where we don't have to give certain decisions that are best left
5 undecided. Okay? Thank you. And good afternoon to everybody.
6 --- Whereupon the Pre-Defence Conference adjourned
7 at 1.16 p.m.