Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8170

1 Wednesday, 11 October 2006

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11 Pages 8171-8271 redacted. Closed session.















Page 8272

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15 [Open session]

16 THE REGISTRAR: [Interpretation] We are in open session, Your

17 Honour.

18 JUDGE ANTONETTI: [Interpretation] Can we lift the blinds, please.

19 In open session we need to discuss tomorrow's hearing. Two

20 witnesses should be heard tomorrow pursuant to Rule 92 ter. The first

21 witness should be cross-questioned for 45 minutes, and as far as the

22 second witness is concerned, I don't have a deadline. Will you be able to

23 finish with these two witnesses tomorrow, Mr. Scott?

24 MR. SCOTT: If I could have one moment, Your Honour --

25 THE INTERPRETER: Microphone for Mr. Scott, please.

Page 8273

1 MR. SCOTT: One moment, please. Your Honour, I think there's a

2 chance, there's a reasonable prospect, I can't say that we can certainly

3 do it, but based on the inquiries I made this morning, the second witness

4 might take -- might take as little as 45 minutes. I'm not sure, Your

5 Honour, with all respect, where the 45-minute estimate comes for the first

6 witness. He's on our schedule for an hour and a half, which I would

7 certainly hope to do better, but there's some chance I'll be able to

8 finish both witnesses, but I -- it will be a push, but we will try.

9 JUDGE ANTONETTI: [Interpretation] You have planned an hour and a

10 half for your first witness, which means that the Defence team will have

11 an hour and a half also, which is three hours at the least. So

12 particularly if we -- this witness is a 92 ter Rule witness, it would be

13 better to bring it down to one hour. Much will depend on how many

14 documents you would like to introduce with this witness.

15 MR. SCOTT: Your Honour, I'm mindful of that. The second witness

16 might be as short as a half hour on direct examination. That's why I'm

17 saying, I'll say it again, I think there's a chance we can finish both

18 witnesses tomorrow, but I will be the first to admit that it will be a

19 push to do so, but we will try.

20 JUDGE ANTONETTI: [Interpretation] Well, if you don't manage it,

21 the witness will, unfortunately, have to stay over until Monday. But I

22 rely on your analytical skills, and I'm sure that you will be able to wrap

23 this up quickly. And I -- I hope that the Defence team will make it

24 possible to finish tomorrow.

25 Just one other topic, Mr. Scott.

Page 8274

1 MR. SCOTT: If the Court has something to say I will certainly

2 defer to the Court schedule. I did want to add a couple of brief

3 comments, but I'll defer to the Court's wishes first if you have something

4 else.

5 JUDGE ANTONETTI: [Interpretation] Go ahead.

6 MR. SCOTT: Thank you, Mr. President. Just two very brief

7 comments. I know the time is short. I express two concerns. I'm again

8 concerned about I think allegations of bad faith that I think frankly are

9 too easily made in the courtroom. When you talk to a witness, in a course

10 of several hours of discussion, there may be all sorts of details that are

11 said. It might be a little bit different than what they've said before.

12 In preparing a proofing note, it is clearly matters of judgement, and

13 counsel tries to capture what they think are really significant changes.

14 It will not be every detail that is changed or provided in a proofing

15 note. There will be times when probably it will not have been done

16 perfectly but I take great umbrage at my staff and myself being accused of

17 bad faith on that kind of a basis.

18 Number two, very briefly, I'm a bit concerned based on some of the

19 questions today about attacking -- essentially attacking the credibility

20 of a witness because they haven't proceeded in a national or domestic

21 court. That raises a whole host of issues that none of us have enough

22 time to get into. I can tell the Chamber myself that I've interviewed

23 enough witnesses in Bosnia-Herzegovina in the last eight years who have

24 told me repeatedly they have no interest in going to the local courts,

25 they have no interest in going to a national court because they didn't

Page 8275

1 believe in the system, because they'd seen it not work, because they'd

2 been harassed, because their families had been intimidated. So if we're

3 really going to go down that --

4 MR. MURPHY: Perhaps Mr. Scott would like to take the solemn

5 declaration before testifying about that, Your Honour.

6 MR. SCOTT: That's exactly my point, Your Honour. And I'm afraid

7 that if we begin to go down this road, and that's exactly why I'm raising

8 it, is that we will indeed go down all sorts of side roads that are not

9 fair and it's not fair to attack the witness as if why haven't you pursued

10 this in a domestic court. Frankly, it's really irrelevant if he has or

11 not. He has come here to give his evidence. But if we're going to get

12 into that Your Honour, it's going to be a long slog. Thank you.

13 JUDGE ANTONETTI: [Interpretation] Very well. Mr. Kovacic.

14 MR. KOVACIC: [Interpretation] Your Honour, I won't take up too

15 much time, but in view of the schedule, on the one hand you asked the

16 Prosecution to try and be succinct with dealing with the two witnesses

17 especially as they are 92 ter witnesses. On the other hand, Your Honours,

18 that places us in a very difficult position. We don't dare ask anything

19 for fear of taking up more court time, not even to make an objection,

20 which we would normally like to raise.

21 I'd like to remind you, I don't know whether you've received the

22 material, but with the next witness, the one coming in tomorrow first, we

23 also received an additional piece of information. So the Prosecution will

24 have to ask the witness about that part. And mention is made of my client

25 directly, which wasn't previously mentioned in the previous statement.

Page 8276

1 And the second thing is this: The Prosecution intends to

2 introduce a large number of documents through the witness. Now, as to the

3 last witness for this week, there is a great -- there are a great many

4 documents that are going to be presented, and judging by the rate at which

5 we're going in the courtroom, my calculations tell me that that would be

6 impossible.

7 I don't want to be in a situation where in the last five minutes I

8 have to give up my right to ask my questions just because the Prosecutor

9 has made this grandiose plan which he then changed, giving the

10 justification that the witness told them some other things. Witnesses

11 quite obviously were not properly questioned during the investigation, and

12 it is -- the Defence cannot pay the price of that now.

13 JUDGE ANTONETTI: [Interpretation] This 92 ter Rule's main purpose,

14 and I am behind this also, the purpose of it is to gain time on the

15 examination-in-chief of the Prosecution. Experience has demonstrated that

16 in most cases, when the Prosecution puts questions to the witness during

17 the examination-in-chief, these questions relate to the written statement

18 and, therefore, the witness answers the question and this follows on the

19 written statement. This means that we can gain time. But this Rule is

20 really only aimed at those witnesses for which few documents are being

21 introduced, because if there is a great number of documents that are being

22 introduced we lose the benefit of all of this. This means that we will be

23 spending a lot of time addressing these documents.

24 I would therefore like to remind the Prosecution that it is

25 important to do this in cases where there are not too many documents.

Page 8277

1 When there are a great number of documents, it's better then to use the

2 viva voce testimony of the witness, both for the Prosecution team and the

3 Defence team.

4 The Rules of Procedure and Evidence have been amended in this way.

5 You can't, if you apply this procedure, introduce dozens of documents,

6 particularly when these documents have not been produced by the witness.

7 You are going to be asking the witness, "You have said this and that. In

8 this document we can read this. Do you confirm this?" And then the

9 Prosecution says or asks for the document to be tendered. So this is

10 where the difference lies.

11 Think about it. This is an important issue. The Defence team

12 should be able to cross-examine the witness in a useful way.

13 Also, the other problem which comes to mind is this one: During

14 the proofing session, there are new questions which come to the forefront.

15 Therefore, you inform the Defence teams about it, and your examination

16 will focus on these new areas, whereas a priori your examination was

17 supposed to focus on the written statement.

18 You have understood that I am totally against this proofing

19 session. This is a procedure which has been admitted here but which

20 generates this kind of problem.

21 As there are several Judges in this Tribunal, and some of the

22 Judges have approved this proofing session, the proofing session sometimes

23 bring to light some issues which are not contained in the written

24 statement, and of course the Prosecution wishes to ask questions about

25 these.

Page 8278

1 Just one last comment. The Trial Chamber ruled on the request by

2 the Croatian government to have an amicus curiae in the courtroom. We

3 have dismissed this request, and this ruling was recorded this morning.

4 It is now 10 to 2.00, and we shall meet again tomorrow at 9.00.

5 Thank you.

6 --- Whereupon the hearing adjourned at 1.50 p.m.,

7 to be reconvened on Thursday, the 12th day

8 of October, 2006, at 9.00 a.m.