Tribunal Criminal Tribunal for the Former Yugoslavia

Page 568

 1                          Thursday, 14 September 2006

 2                          [Open session]

 3                          [Status Conference]

 4                          --- Upon commencing at 2.16 p.m.

 5                          [The accused entered court]

 6            JUDGE ORIE:  Would you please call the case.

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

 8    IT-03-67-PT, the Prosecutor versus Vojislav Seselj.

 9            JUDGE ORIE:  Thank you, Madam Registrar.

10            Mr. Seselj, can you hear me in a language you understand?

11            THE ACCUSED: [Interpretation] I can.

12            JUDGE ORIE:  Yes.  Then may I have the -- we are here for a Status

13    Conference.  My screen is not ...

14            Yes.  We are here today for a Status Conference in the case

15    against Mr. Vojislav Seselj, and I would like to have the appearances.

16    Prosecution first.

17            MS. UERTZ-RETZLAFF:  Thank you, Your Honour.  Good afternoon, Your

18    Honour.  For the Prosecution, Mr. Daniel Saxon and myself, Hildegard

19    Uertz-Retzlaff, and we are together with our case manager, Ana Katalinic.

20            JUDGE ORIE:  Thank you, Madam Uertz-Retzlaff.

21            For the Defence.

22            MR. HOOPER:  My name is David Hooper of the bar of England and

23    Wales.  I am lead counsel in the case per the order of the Chamber of the

24    21st of August, 2006, and following the assignation, nomination, rather,

25    by the Registry of the 31st of August, 2006.

Page 569

 1            I have sitting with me here, to my left, immediate left,

 2    Dr. Andreas O'Shea, also of the bar of England and Wales.  And I am

 3    assisted as a legal assistant by Lea Kulinowski, who sits toward the back

 4    of the court.

 5            I also take the opportunity to mention, he doesn't need to be

 6    formally introduced, Mr. Tjarda Van der Spoel, counsel assigned as

 7    stand-by counsel and whose status will be known to the Chamber.

 8            JUDGE ORIE:  Yes, the status of Mr. Van der Spoel being acting

 9    counsel for a period of 30 days, since the assignment of you, Mr. Hooper.

10    By acting counsel, that means that he can act as counsel when you are not

11    assigned yet.  He of course would have to do it alone.  But now he, I do

12    see that he is involved in the appeal against the decision of this Chamber

13    to --

14            MR. HOOPER:  Yes.  His position as stand-by counsel ceased with my

15    nomination and appointment.  But the Registry have preserved his position

16    in respect of the appeal which has now been -- the appeal that's been made

17    against the order of this court of course to assign counsel, to assign

18    effectively me in this case, that is presently subject to appeal.  The

19    appeal has been of course lodged and responded to.

20            JUDGE ORIE: Yes.  Thank you, Mr. Hooper.

21            I have a couple of matters on the agenda.  The parties have

22    informally informed about a few matters they would like to raise, and I,

23    intend to give an opportunity to Mr. Seselj at the end of this hearing to

24    address any health matters he might want to raise with me.

25            The first issue I would like to --

Page 570

 1            MR. HOOPER:  Mr. President, just one moment.  Sorry to interrupt

 2    you.

 3            My understanding is, at present, that Mr. Seselj would not have

 4    received the agenda in a language that he understands.  And in those

 5    circumstances, as what I'm saying is being translated, I wonder whether it

 6    would be helpful if I just very quickly ran through the items of the

 7    agenda.

 8            JUDGE ORIE:  Yes.  I don't know exactly -- yes, the agenda which I

 9    have in front of me might not be exactly the same as yours, because I have

10    some additional remarks which I would not expect you --

11            What is on the agenda is to revisit disclosure, to pay attention

12    to trial-related matters, that we pay attention to 92 bis and adjudicated

13    facts, that we pay attention to protective measures, that we pay attention

14    to e-court and hard copies of exhibits, the accused's health and

15    conditions of detention, and any other business raised by any of the

16    parties.

17            MR. HOOPER:  Yes, thank you.

18            JUDGE ORIE:  Yes.  Then I would first like to turn to disclosure

19    issues.

20            THE ACCUSED: [Interpretation] Mr. Orie, this man with a bird's

21    nest on his head has been falsely introduced by you as my counsel.  He

22    will never be my Defence counsel.

23            JUDGE ORIE:  Mr. Seselj, if you want to address me, or later on

24    the Trial Chamber you can do so through counsel.  If you don't wish to do

25    that, you will not be able to address this Chamber apart from when I

Page 571

 1    specifically allow you to address me as the Judge at this moment, as I

 2    indicated at the beginning of -- Mr. Seselj --

 3            THE ACCUSED: [Interpretation] In that case, Mr. Orie, I will not

 4    be taking part in this theatrical production.  I'm not interested in your

 5    theatrical production.  You have denied me my right to defend myself and

 6    you want me to serve here as an extra.  I will not be an extra in the

 7    courtroom.  You can conduct the trial without me, because you are an

 8    illegal tribunal anyway.  You are acting in contravention of all human

 9    rights.  You brought actors here to act as my Defence counsel.  They are

10    not my Defence counsel.  They are your spies, and their task is --

11            JUDGE ORIE:  Mr. Seselj, it seems that you do not want to adhere

12    to the decision this Chamber has taken.  If you choose not to be present,

13    that's at least what I hear, then you will not be able to follow this

14    proceedings.  You will not be able to consult with Mr. Hooper, whether

15    there would be anything that should be raised on your behalf.  Therefore,

16    I suggest to you that it would be preferable that you stay, but if you

17    don't want to do that, I'm not going to force you to stay in this

18    courtroom, if you consider your presence of no value whatsoever, and the

19    same will be true at later stages of the Tribunal -- later stages of the

20    proceedings.

21            So therefore, if you say, as you expressed earlier, that you don't

22    want to serve here as an extra and if you feel you are here as an extra,

23    you are not for me.  You are the accused in this case.  And I would very

24    much like to hear, in accordance with the decision the Trial Chamber has

25    taken, through counsel, whatever you would like to bring to the attention

Page 572

 1    of me or, later, of this Chamber.

 2            But finally, the choice is yours.

 3            THE ACCUSED: [Interpretation] Hooper will never be able to do

 4    anything on my behalf, not a single step in the trial.

 5            Today, Mr. Orie, I submitted a request to the relevant judicial

 6    body.  In accordance with it, you are duty-bound to immediately stay these

 7    proceedings until the request on your dismissal from the case is ruled

 8    upon.  This morning I submitted that motion.

 9            JUDGE ORIE:  Yes.  If this would have been a matter you would like

10    to raise, you should have done it through Mr. Hooper.  I am not, at this

11    moment, expecting any further comments from you.  If there is anything you

12    think should be brought to my attention, you can do it through Mr. Hooper,

13    but I understand that's not what you wish to do.  I do not allow you to do

14    it yourself, apart from the matter I mentioned earlier.  And if --

15            THE ACCUSED: [Interpretation] I'm leaving the courtroom right now.

16            JUDGE ORIE:  Mr. Seselj, I will not allow you to interrupt me all

17    the times.  If you decide that you wish to leave the courtroom, then I

18    will instruct security to escort you out of the courtroom, and we will

19    continue with this Status Conference --

20            THE ACCUSED: [Interpretation] Mr. Orie, be so kind and issue an

21    order to have me escorted out of the courtroom, because I have nothing

22    further to say to you.  Hooper has no right to speak on my behalf.

23            MR. HOOPER:  I am not getting translated, and that's because I'm

24    unfamiliar with the channel system here.

25            JUDGE ORIE:  No, no, no, I can tell you why it is, because I

Page 573

 1    pushed the priority button when I have not allowed Mr. Seselj to speak.

 2    What he says comes not through the microphone and will not be translated.

 3    That is because I did not allow Mr. Seselj to speak or to interrupt me,

 4    and if there is anything that should be put on the record which he wanted

 5    to say he should do it through you.

 6            I take it that the -- I have a priority button which excludes all

 7    microphones in this courtroom, apart from mine, and the interpreters are

 8    dependent on the microphones.

 9            MR. HOOPER:  Thank you.  I am in fact getting a transcription in

10    English, so I'm not unaware of what's being said.  I make that plain.  But

11    I just --

12            JUDGE ORIE:  Okay.

13            MR. HOOPER:  I wondered what was being said, and I was also --

14    wondered what had happened to the Serbian translation, but now I know.

15    Thank you very much.

16            JUDGE ORIE:  Okay.  So it has been translated despite me pushing

17    the priority button.  As a matter of fact, yes, I heard the translation as

18    well.  So I should have been aware of it.

19            MR. HOOPER:  Right.

20            THE ACCUSED: [Interpretation] Mr. Orie, will you be so kind and

21    order the guards to escort me out of the courtroom?

22            JUDGE ORIE:  No, Mr. Seselj.  At this moment I am doing something

23    else.

24            Mr. Seselj, I will give you an opportunity which you might not

25    wish to use, to consult with Mr. Hooper to inform him about what you said

Page 574

 1    before about why we would have to stop these proceedings.  If you don't

 2    take that opportunity, you may express your wish to leave the courtroom,

 3    then I will instruct security to escort you to the --

 4            THE ACCUSED: [Interpretation] I will never speak to Hooper, never

 5    in my life, or with any other spy of yours, whose goal it is to deny me my

 6    right to my defence.  And therefore I am asking you to instruct the guards

 7    to escort me out of the courtroom, so that we avoid any excesses here,

 8    Mr. Orie.  I am a very calm and balanced person, and I don't like any

 9    excessive behaviour.

10            JUDGE ORIE:  I interpret your request for me to instruct the

11    guards to escort you out of the courtroom as an expression of your wish

12    not to remain in this courtroom at this moment.

13            So therefore, security, please --

14            THE ACCUSED: [Interpretation] Until you restore my right to defend

15    myself, I will not be participating.

16            JUDGE ORIE:  Yes.

17                          [The accused withdrew]

18            JUDGE ORIE:  Yes.  Then we will continue with this Status

19    Conference, Mr. Seselj preferring not to be present and not accepting the

20    decision of the Trial Chamber that he would be represented by counsel at

21    and is at this moment not allowed, apart from the limits set by the Trial

22    Chamber, to represent himself.

23            Then we move on to disclosure.  Let's go through it.  The

24    supporting material has been disclosed.  Yes.

25            MR. SAXON:  That is correct, Your Honour.

Page 575

 1            JUDGE ORIE:  It has been disclosed.

 2            Mr. Hooper, usually disclosure is finished once it has been

 3    disclosed, but I would like to know whether you have received the

 4    supporting material, whether it's available to you.  That's the supporting

 5    material on the Rule 66(A)(i).

 6            MR. HOOPER:  Yes.  So far as I know, and we've been very much

 7    assisted by Mr. Van der Spoel, all material that's been served on the

 8    Defence is now in my possession.

 9            JUDGE ORIE:  Yes.

10            MR. HOOPER:  Including the supporting material.

11            JUDGE ORIE:  Yes.  Then I move on to a specific request.  I do

12    understand, Mr. Hooper, that you would very much like to have disclosed to

13    you any statements given in domestic courts, earlier or statements that

14    might be used that might be relevant for this case.  Yes.

15            MR. SAXON:  Your Honour, it is the practice of the Prosecution to

16    disclose such statements as part of the Prosecution's obligations under

17    Rule 66(A)(ii).  So we have been disclosing such statements where we have

18    them in our possession and we will continue to do so.

19            JUDGE ORIE:  Yes.  So what you are actually saying, what the

20    Defence is asking for is already among the material disclosed?

21            MR. SAXON:  That's correct, Your Honour.

22            JUDGE ORIE:  Yes.

23            Mr. Hooper, does that answer your request?

24            MR. HOOPER:  Yes, it does.  And certainly if that intent is

25    fulfilled, we'll be entirely satisfied.  Thank you.

Page 576

 1            JUDGE ORIE:  Yes.  If there were any -- I can imagine that it will

 2    take you some time to find your way through all the materials.

 3            If the Prosecution could assist Mr. Hooper and identify where to

 4    find the statements given in actual court proceedings, it would be highly

 5    appreciated.  I take it anyhow that there will be some can contact between

 6    Prosecution and Defence in order to assist Mr. Hooper in getting

 7    acquainted with the case, as soon as possible.

 8            MR. SAXON:  Your Honour, the Prosecution and Mr. Hooper and

 9    Mr. O'Shea have already met at least twice, so we are endeavouring to

10    assist as much as we can.

11            JUDGE ORIE:  Yes.

12            Then next, Rule 68 material.  That is then, to the extent

13    disclosed, is available to you.  At least that's what I understand from

14    your earlier answer, Mr. Hooper.

15            Then the next issue is the disclosure of material related to

16    witnesses for whom an application for delayed disclosure is pending.  And

17    I do understand that the Prosecution wants to address me on this issue.

18            MR. SAXON:  Your Honour, very briefly.  The Prosecution would like

19    to reply to several points made by assigned Defence counsel recently in

20    his response to the Prosecution's seventh and eighth motions for

21    protective measures.

22            JUDGE ORIE:  Yes.

23            MR. SAXON:  With respect to paragraphs 2 through 6 of the assigned

24    counsel's response, where assigned counsel argues that the Defence should

25    receive the same information as the Trial Chamber with respect to

Page 577

 1    information related to witnesses whom are the subject of pending motions

 2    for protective measures.  As you know, the Statute, articles 20 and 22,

 3    obliges this Tribunal to be concerned, in addition to the fair trial

 4    rights of the accused, but also the interests and rights of victims and

 5    witnesses, particularly their safety and security.

 6            The Prosecution believes that to oblige the Prosecution to provide

 7    sensitive witness information to the Defence in the context of a motion

 8    for protective measures submitted before the start of a trial effectively

 9    would have absurd results because it would undermine our statutory

10    obligations.  Granting protective measures to Prosecution witnesses,

11    including delayed disclosure does not disadvantage the Defence, so long as

12    the Defence has sufficient time to prepare for -- to prepare to test the

13    evidence given by Prosecution witnesses.

14            Prosecution is not trying to obstruct the Defence's right to

15    prepare for trial, nor is it trying to undermine the principle of equality

16    of arms, but the Prosecution feels very strongly that it must, while

17    protecting the accused's right to a fair trial, it must also fulfil its

18    statutory obligation to protect the safety and security of victim

19    witnesses.

20            Paragraph 9 of the Defence response, there is an argument

21    regarding the delicate balance that is necessary between the rights of the

22    accused and the interests of the victim and witnesses and the need to

23    create this balance by having proper regard to the particular

24    circumstances of this proceeding.

25            We agree with that comment, and we say that in the particular

Page 578

 1    circumstances of this proceeding then delayed disclosure is perfectly

 2    appropriate.  We are dealing here with an accused who has publicly

 3    declared his intention to destroy this Tribunal, who has constantly

 4    flouted and flaunted the Rules of this Tribunal, and who has already

 5    publicly harassed and intimidated Prosecution witnesses.

 6            So in this particular case, Your Honour, the Prosecution believes

 7    that the balance should be struck cautiously vis-a-vis exposing witnesses

 8    to risk.

 9            Paragraphs 11 to 12 the Defence response, the assigned counsel

10    refers to a so-called common practice regarding the disclosure of witness

11    statements and the identity of sensitive witnesses to the Defence and says

12    that that common practice is that such statements should be disclosed 30

13    days prior to the commencement of trial.

14            A party's burden when making an application for protective

15    measures is laid out in the Brdjanin and Talic decisions from Judge Hunt

16    from July of 2000, which was followed by the Milosevic Trial Chamber in

17    February of 2002, and it says that the Prosecution must demonstrate that

18    exceptional circumstances exist in order for delayed disclosure to be

19    granted.

20            In this case, given the particular circumstances, we feel we have

21    met that burden.

22            Regarding the so-called common practice of disclosure 30 days

23    prior to the commencement of trial, there is an equal practice, whether it

24    may be called common or not, Your Honour, at least in certain cases, with

25    respect to certain sensitive witnesses of allowing disclosure of the

Page 579

 1    witness's identity and their unredacted statements during the trial 30

 2    days prior to testimony or even shorter.  And I would refer the Chamber

 3    and the Defence, for example, to the testimony of Witness C-047 in the

 4    Milosevic case for whom disclosure was permitted ten days prior to the

 5    witness's testimony.  That's a decision dated 13th of March, 2003.  And

 6    also the decision of the so-called Vukovar 3 Trial Chamber regarding

 7    Witness P-024, where the disclosure was permitted 30 days prior to the

 8    witness's testimony.

 9            So if there may be a common practice of 30 days prior to the

10    commencement of trial, equally, Your Honour, there is certainly a practice

11    with respect to particular witnesses in particular cases of shortening

12    that time-period to take into account the particular protection needs of

13    the witnesses.

14            That's all I have to say on this, Your Honour.  Thank you.

15            JUDGE ORIE:  Thank you.

16            Mr. Hooper, would you like to respond immediately?  Or would you

17    like to take more time and to respond in writing?  The issue being 30 days

18    of course.  We're close to 30 days from the start of the trial already, so

19    there would not be, it would not make much sense to make, to start arguing

20    about whether it should be on the 20th of September or the 25th of

21    September instead of the 1st of October.  But the Prosecution takes the

22    view that 30 days prior to testimony would be the practice to be followed

23    here, although I didn't hear that it is common practice.

24            MR. HOOPER:  Yes, Mr. President.  We agree that it's perhaps

25    getting a fine distinction, subject of course to the trial date, which is

Page 580

 1    a matter which I think may be raised at a later --

 2            JUDGE ORIE:  I can stop you.  In order to leave no puzzle for you,

 3    the Chamber has in mind to schedule the start of the trial at the very

 4    beginning of November.

 5            MR. HOOPER:  Very well.  In which case the response that we've

 6    already made to the Prosecution's seventh and eighth protective measures

 7    motion remains relevant, and the points there, I hope, unfairly made.  And

 8    they're made of course in the context of this particular assignment and

 9    this particular short pre-trial period and with the demands on what is

10    presently still a small Defence team, in respect of preparation in order

11    to meet the Chamber's expectations for starting in early November.

12            Mr. Saxon, I noticed, may, may perhaps have misunderstood to some

13    extent the thrust of our request, for the reasons for the stringent

14    measures that the Prosecution were invoking, and the reason for that is

15    that there's, as we understand it, in those requests by the Prosecution a

16    general statement that they're needed.  But the reasons for such stringent

17    measures are not in fact given.  And it's our submission that the reasons

18    could be given to the extent that they satisfy our enquiry, permitting us,

19    in fact, to also assess and respond, and also for the Chamber, in fact, to

20    assess and respond.  But particularly us, put us in the picture, to the

21    extent of justifying those stringent measures requested so that -- and to

22    do that without, we think, defeating the object of the exercise, which is

23    of course to protect witnesses.

24            So we feel that the Prosecution can provide the reasons, without,

25    as it were, removing the protection of the witness by revealing too much

Page 581

 1    information.  It is a question of how much they reveal.

 2            I think the only other matter we raised in that motion was, if

 3    there are redacted statements, can we have them?  And I understand that

 4    certainly in respect of some of them the Prosecution argument is, well, if

 5    they're effectively redacted, there will be very little to read or nothing

 6    to read.  But we would like that reviewed.  And if it is possible, in the

 7    alternative, to application for immediate service of unredacted

 8    statements, that we have redacted statements.

 9            I don't add any more to the issue of common practice.

10            JUDGE ORIE:  Yes.

11            MR. HOOPER:  Thank you.

12            JUDGE ORIE:  Mr. Saxon, two clear questions.  The one is, could

13    you be a bit more specific on your reasons.  That's one.  And the second

14    is, even if there is little to read, why not give then that at least to

15    read to the Defence?

16            MR. SAXON:  Your Honour, it would be, quite frankly, to provide

17    the reasons for which each of our proposed witnesses require protective

18    measures effectively would require the Prosecution to release its

19    information explaining who each witness is and what their position is.

20            So we don't see any difference, quite frankly, unless we were --

21    unless we were to provide some very generic reason such as, you know, the

22    witness has exceptional security concerns, which obviously would not be

23    terribly helpful to the Defence.

24            With regard to the second question.  The Prosecution submits that

25    with respect to its so-called insider witnesses, for whom, whom are the

Page 582

 1    subject of the majority of these protective measures, redactions would be,

 2    quite frankly, pointless and useless and a waste of time, because

 3    virtually the entire statement -- statements would have to be blacked out,

 4    and the result would be the Defence would have little or nothing to read.

 5    And that would not be useful for the Defence, nor would it be a useful use

 6    of the Prosecution's time and resources.

 7            There may be, Your Honour, one or two so-called crime-based

 8    witnesses for whom protective measures have been sought, for which some

 9    more reasons could be given without identifying the witness, for which,

10    perhaps, a redacted statement could be provided.  But the Prosecution will

11    have to review that very carefully.  But this would only apply to a very

12    limited number of witnesses.

13            JUDGE ORIE:  Yes.  You say sometimes -- you couldn't say more than

14    that the witness has security concerns.  But sometimes witnesses have

15    received threats by telephone or sometimes a witness is warned by others

16    that someone is going after him.  I mean, that of course would all fall

17    within the scope of security concerns, but would be more specific.

18            Is that -- Mr. Hooper, do I understand you well?

19            MR. HOOPER:  Yes.

20            JUDGE ORIE:  You would like to have this kind of information,

21    whether you say it's exclusively his position or it is supported by

22    threats made already, or that's, to give even in abstract terms as much as

23    possible to make it -- make you better able to assess the -- whether or

24    not you would be inclined to respect the reasons or not to respect them.

25            MR. HOOPER:  Yes, indeed.  It might be the simple position of

Page 583

 1    someone being a member of an organisation whose position would immediately

 2    lead to identification.  So the context of the statement, for example.

 3    But then there is other matters, such as you've raised, Mr. President,

 4    that add extra bite and assist us.

 5            JUDGE ORIE:  Yes.

 6            Mr. Saxon, would you be willing -- there were several issues where

 7    you said you couldn't go any further than security concerns.  Of course

 8    the Chamber will look at whether there would be a possibility to say more,

 9    and you're not only invited but urged to review that possibility in every

10    respect on the seventh and the eighth motion, so that both the Defence is

11    assisted in taking its position in respect of the motions, and also for

12    the Chamber to see how serious you have been in accommodating the Defence

13    in this respect.

14            MR. SAXON:  Very well, Your Honour.

15            In order to do that, we will have to review the information that

16    is contained in the ex parte submissions that were attached to these

17    motions for protective measures.

18            JUDGE ORIE:  Yes.

19            MR. SAXON:  And we will endeavour to do that as soon as practical.

20            JUDGE ORIE:  Yes.  I expect you to do that within five working

21    days from now on.  Would that be possible?

22            MR. SAXON:  Could you make it ten, Your Honour?  We want to do

23    this as carefully as we can because of the interests that are at stake.

24            JUDGE ORIE:  Yes, I do understand that you want to be very

25    cautious in this respect.  At the same time, time is limited also for the

Page 584

 1    Defence.  I mean, the Chamber has to prepare a decision.  Once you've

 2    given this additional information, the Defence should be in a position to

 3    further respond on that information and we are coming closer and closer to

 4    the beginning of November.  So five days.  If you would not be able to do

 5    it within five days, you can show good cause why you were not.

 6            So five working days from now on to review the reasons on the

 7    basis of which you asked for protective measures and to disclose whatever

 8    could possibly be disclosed to the Defence.

 9            Then I am going back to the agenda.

10            By the way, Mr. Hooper, any need to further say anything about

11    this?  Or shall we just wait and see?

12            MR. HOOPER:  No.  No.  Thank you.  I thank the Prosecution too.

13            JUDGE ORIE:  I will move on to the trial-related matters.

14            The start of the case is envisaged for early November 2006.  And

15    the Pre-Trial Conference to be held in due course before the commencement

16    of trial.

17            And usually, Mr. Hooper, sometimes in this Tribunal it was even on

18    the same day or the day before or two days before.  That's the -- perhaps

19    the same day is not a good idea.  Perhaps one or two days prior to the

20    start of the trial would be the best idea.  Yes?

21            Yes.  Of course there is one issue.  We do not have yet the

22    Appeals Chamber's decision on the appeal that is lodged against the

23    decision of this Chamber to assign counsel.  We all hope, and to be quite

24    honest I do expect, that the Appeals Chamber will give its decision before

25    the scheduled start of the trial.  Of course the Appeals Chamber certainly

Page 585

 1    will be aware of the urgency involved.

 2            The next trial issue, Madam Uertz-Retzlaff is the request of the

 3    Chamber, I should say the invitation of the Chamber to reduce the scope of

 4    the indictment.  The Chamber has received your response, in which you say:

 5    We cannot follow your invitation, but if you -- I think you said request

 6    us to do it, we will then come up with a new submission.  Of course, under

 7    the Rules, we could even direct you to that.  But the Chamber would very

 8    much appreciate having read your response, that you give it an effort to

 9    file within one week from now on what you would have filed if the Chamber

10    would have required you to make such a new submission.

11            MS. UERTZ-RETZLAFF:  Your Honour, let me -- please allow me to

12    make two points.

13            JUDGE ORIE:  Yes.

14            MS. UERTZ-RETZLAFF:  First of all, as you have seen from our

15    submission that the primary argument of the Prosecution is that this

16    indictment is already streamlined --

17            JUDGE ORIE:  Yes.

18            MS. UERTZ-RETZLAFF:  -- according to the needs of an expeditious

19    trial, and that the estimate of the Prosecution case is actually six

20    months.

21            JUDGE ORIE:  Yes.  I come to that in more detail soon, yes.

22            MS. UERTZ-RETZLAFF:  And for an accused of this level of

23    leadership and responsibility, that is indeed a very expeditious trial.

24    And therefore, actually, as we have already indicated in paragraph 10 of

25    our submission, we would urge the Trial Chamber not to require the

Page 586

 1    reduction of the scope of the indictment at this point in time, but rather

 2    address this issue after the first six or two months that we are in trial,

 3    so that we can see whether our expectations are met.

 4            JUDGE ORIE:  Yes.

 5            MS. UERTZ-RETZLAFF:  My second point is the following.  The

 6    accused is not just a member of a JCE that acts in always the same way in

 7    huge number of municipalities.  The situation in each of the named

 8    municipalities that we have addressed in the indictment is quite specific

 9    as to the goals of the accused and the other JCE members and the means

10    employed.

11            It is not an indictment charging the very same criminal conduct in

12    a huge amount of municipalities.  And it is also not a case of a remote

13    perpetrator far away from any of these crime bases, such as, for instance,

14    Slobodan Milosevic.  Instead, we have an accused who physically commits or

15    instigates some of the crimes charged.  One can definitely not drop a

16    crime base in which the accused himself appears to be the physical

17    perpetrator or the direct instigator of the crimes, that is at least the

18    position of the Prosecution.  And then the question is:  Which one of the

19    other few municipalities to drop and still have the ability to present the

20    scope and conduct of the criminality of this accused?

21            The Prosecution, therefore, rather did not like to drop a

22    municipality, or incidence, because it would cut into the core of the --

23    of this case against the accused.

24            In paragraph 29 of our submission, we have indicated our

25    willingness to drop counts, meaning alternative charges; for instance, as

Page 587

 1    an example, the Counts 2 and 3 and -- or the Counts 6 and 7.  But of

 2    course we do not know whether the Trial Chamber would actually find that

 3    sufficient.  And what we want to make clear is that we are not making a

 4    proposal to drop or reduce parts from our indictment voluntarily.  We

 5    would, of course, do it if the Trial Chamber direct us to do so.

 6            JUDGE ORIE:  Yes.

 7            MS. UERTZ-RETZLAFF:  So if you direct us to do so, we can indeed

 8    prepare a proposal for these reductions, and -- but I would request to get

 9    a time-frame until one week from now, that's the 21st of September,

10    because if we have to drop substantial, if we are forced to do so, if we

11    have to cut into the substance of the case, we have to carefully really

12    consider that.

13            JUDGE ORIE:  Yes.  Madam Uertz-Retzlaff, isn't it true that if the

14    Chamber invites you to cut the case to two-thirds, it would always have an

15    impact on your ability to present the scope and the conduct of the

16    criminality of this accused, as you said.  I mean, isn't that inherent to

17    our invitation?  You say, well, if we would have to do that, we would

18    not -- we could not present the full scope of his behaviour and conduct.

19    It very much now seems to become a question of, if we cut it down further

20    it would not present the scope of the responsibility or the conduct or of

21    the criminality, whatever you call it, but isn't it true that is always a

22    matter of more or less?

23            MS. UERTZ-RETZLAFF:  Your Honour, you are correct.  But I think in

24    this particular case, it's quite different from other leadership cases

25    that have already been heard here in this Tribunal, because we have heard

Page 588

 1    leadership cases where, let's say, the -- always the same conduct in,

 2    let's say, up to 20, 30 municipalities was actually the Prosecution case

 3    and evidence was heard about.  But here, when you look at the nine

 4    municipalities, you will find charged different conduct.

 5            For instance, let me just take the municipality of Brcko.  For

 6    instance, in relation to the municipality of Brcko, we did not charge the

 7    murders and the ethnic cleansing practices applied per se.  We only picked

 8    one particular camp because we want to show the, in particular, forced

 9    labour aspects of this case and the sexual assaults of this case.

10            Or for instance in relation to Bjeljina.  You will also find that

11    the focus of the charges in relation to Bjeljina is basically forced

12    labour, sexual assaults and the like, and it is not that we charged for

13    each and every indictment the full scale of the ethnic cleansing means

14    that were applied.  That's what I mean.

15            JUDGE ORIE:  Yes.

16            MS. UERTZ-RETZLAFF:  So if we, for instance, cut certain

17    municipalities, we will lose whole chapters of criminal conduct.

18            JUDGE ORIE:  Yes.  Now, just to -- you said in Brcko we did not

19    charge everything, we charged forced labour and sexual assaults.  I think

20    you said for Bjeljina we did the same.

21            Of course the question would then be, if you would do that for

22    Brcko, would it -- would the case be totally different if we would not do

23    it anymore for Bjeljina?  I mean, to what extent is more of the same

24    behaviour ...

25            MS. UERTZ-RETZLAFF:  Your Honour, I have -- we have actually

Page 589

 1    listed, in our submissions, the municipalities.

 2            JUDGE ORIE:  Yes, I see that here.

 3            MS. UERTZ-RETZLAFF:  Yes.  And you will find there is a

 4    difference, always a difference in conduct and, in particular, also a

 5    difference in associates of the accused appearing on the scene and

 6    committing the crimes.

 7            For Bjeljina, for instance, we have Vojvoda Mirko Blagojevic

 8    responsible for the crimes.  And here in Bjeljina, we have a municipality

 9    where, in addition to the abuse of civilians in detention facilities, we

10    have the deliberate destruction of separate sites which is the focus for

11    the Bjeljina municipality which you would not find in Brcko and you would

12    not find in other municipalities that we have charged.

13            JUDGE ORIE:  No.  I do understand that it's not all the same,

14    Madam Uertz-Retzlaff.  But the issue is whether -- not whether what you

15    would like to keep is exactly the same, but sometimes it might be slightly

16    different, perhaps with other persons.

17            But nevertheless what -- I mean, you have done the same exercise.

18    You could perhaps have taken other municipalities as well and other

19    participants in the joint criminal enterprise as well.  So you cut that

20    down.  What makes you believe that it would be these I think nine

21    municipalities and we could not do with seven, and that it's essential

22    that we include an issue where Mr. Blagojevic was involved in the joint

23    criminal enterprise?  Of course we have read your response, but I am not

24    convinced yet.  But I am not the only Judge in this Chamber.  We are the

25    three of us.

Page 590

 1            MS. UERTZ-RETZLAFF:  Your Honour, Your Honours, we actually

 2    embarked with our submission to show to the Trial Chamber, to demonstrate

 3    that each of these municipalities are unique and it's not a repetition of

 4    crimes being committed in the area, and that's why we felt we can't really

 5    drop any of those.

 6            We wouldn't know which one, because all of them are of great

 7    importance for this case.  But as I said, if you direct us to do that, we

 8    will of course do that.

 9            JUDGE ORIE:  Yes, Madam Uertz-Retzlaff, you would follow such

10    directive.

11            Mr. Hooper, is there anything you would like to add on this

12    subject?

13            MR. HOOPER:  Essentially, no.

14            JUDGE ORIE:  Thank you, Mr. Hooper.

15            I would be interested, however, Madam Uertz-Retzlaff, because the

16    Chamber will have to give a decision, to perhaps hear a bit more about

17    your 100 court days expectation expressed in your response.

18            You said:  "We could present our case in six months approximately,

19    100 court days."  Would that include cross-examination?

20            MS. UERTZ-RETZLAFF:  Yes, Your Honour.  We have actually based

21    this calculation -- and I have done it a couple of times --

22            JUDGE ORIE:  Yes.

23            MS. UERTZ-RETZLAFF:  -- according to how the witness list

24    developed, we have calculated the six months on the basis of a five days

25    week.

Page 591

 1            JUDGE ORIE:  Yes.

 2            MS. UERTZ-RETZLAFF:  Four hours taking of evidence each day.

 3    That's the basis.  And we have actually included the time for

 4    cross-examination in it.  And when you look at the witness list that we

 5    have provided, the figures given there are actually including the

 6    cross-examination.

 7            JUDGE ORIE:  Yes.

 8            MS. UERTZ-RETZLAFF:  We will, as I've said last time, is that we,

 9    of course, want to present the Prosecution case, the evidence in-chief

10    mostly in writing, even related to the acts and conduct of the accused.

11            JUDGE ORIE:  Yes.

12            MS. UERTZ-RETZLAFF:  And for that you may have seen already our

13    first 89(F) motion, a series of these motions will follow, and it will

14    be -- we have explained what we intend to do in that very first motion.

15            JUDGE ORIE:  Yes.  Now, how did you calculate the time for

16    cross-examination if you call a witness under Rule 89(F), and what was

17    your starting point on 92 bis witnesses?  I mean, how did you calculate

18    that?  Because I see now that you say we more and more want to present our

19    evidence under Rule 89(F), which means only a few questions and mainly the

20    statement.  That certainly reduces considerably the time taken by

21    examination-in-chief.  But what's, then, the key for calculating how much

22    time would be needed for cross-examination?

23            MS. UERTZ-RETZLAFF:  Your Honour, we had actually looked at all

24    the specific witnesses.

25            JUDGE ORIE:  Yes.

Page 592

 1            MS. UERTZ-RETZLAFF:  And have looked at each of them and made a

 2    calculation, and for the insiders, when 89(F) is allowed, we would

 3    actually take them only one to two hours --

 4            JUDGE ORIE:  Yes.

 5            MS. UERTZ-RETZLAFF:  -- in-chief.

 6            JUDGE ORIE:  Yes.

 7            MS. UERTZ-RETZLAFF:  -- and the rest, when you for instance look

 8    at our witness list, you find for one witness, 17 for instance, eight

 9    hours, that would mean two hours examination-in-chief, six hours in

10    cross-examination.

11            JUDGE ORIE:  Yes.

12            MS. UERTZ-RETZLAFF:  So the majority of the time given is actually

13    for cross-examination.  And that same applies for the 92 bis witnesses,

14    where we actually would just take ten minutes in-chief and have the rest

15    in cross-examination time.

16            JUDGE ORIE:  Yes.  I take it, Mr. Hooper, that you had no

17    opportunity yet to assess the -- how realistic the time assessed for

18    cross-examination would be?

19            MR. HOOPER:  No, not at all.  And with the particular feature of

20    the case that was perhaps demonstrated today, that's another added unknown

21    of course.

22            JUDGE ORIE:  Yes.

23            MR. HOOPER:  So I am afraid we can't assist.  We're not in a

24    position to assist.

25            JUDGE ORIE:  Yes.  Would you be in a position to, perhaps at

Page 593

 1    random, to look at the witness list, pick out a few, and check perhaps on

 2    the basis of what of these examples, on whether you consider it realistic,

 3    the time.  I mean, for example, I'm not saying that this is the case, but

 4    for example if you would have 400 pages of 92 bis (D) material, that's

 5    transcript from other cases, that if four hours were assessed for

 6    cross-examination, you would say no, I would need at least double.

 7            I'm trying to find out how realistic the time estimate is, because

 8    the Chamber, Madam Uertz-Retzlaff, is very much hesitant to proceed and

 9    then find out, which often happens, at a later stage, that the

10    expectations are not met.  Not to say that you could foresee that already,

11    but we would rather be more certain on from the beginning that we'll meet

12    the expectations, rather than to give it a try and then perhaps have to

13    face a disappointment.

14            MS. UERTZ-RETZLAFF:  Your Honour, we had a little bit of, at least

15    in relation to the examination-in-chief, we have of course the example in

16    the Milosevic case that I am familiar with where the examination-in-chief

17    was often very, very short, because of 89(F) or 92 bis.

18            The time taken for cross-examination was, in contrast to that,

19    very extensive, but this depended on the accused, who defended himself.

20            JUDGE ORIE:  Yes, of course.

21            MS. UERTZ-RETZLAFF:  And didn't focus.  So I would expect that the

22    Defence will focus on the issues that really matters and not on political

23    points.

24            JUDGE ORIE:  Yes.  You say they might even take more time?

25            MS. UERTZ-RETZLAFF:  No.  I think they will take less, much less.

Page 594

 1    Because the Defence will know, a proper Defence will know what to focus

 2    on.

 3            JUDGE ORIE:  Yes.  I'm just saying that if you have a different

 4    focus, that doesn't automatically mean that it takes less time.  That's --

 5            MS. UERTZ-RETZLAFF:  I was comparing it only to the case, to the

 6    Milosevic case where the focus of the accused was quite a different one.

 7            JUDGE ORIE:  Yes.  Okay.

 8            Mr. Hooper, my request to you was whether you would, at random,

 9    try to take a sample and to see whether there is any realism in the

10    approach taken by the Prosecution.

11            MR. HOOPER:  I couldn't do that today.

12            JUDGE ORIE:  No, no, no, I'm not asking you to do it today.

13            MR. HOOPER:  But I will certainly try and assist the Chamber to

14    get as accurate and objective a viewpoint of trial time and witness time

15    by the end of this month, if possible.  But it's difficult --

16            JUDGE ORIE:  Yes.

17            MR. HOOPER:  Because we're not let into the case at all at the

18    moment and we're not assisted at the moment, and we might never be, by the

19    accused.  So all I can say is that we will just need time.  I'm sorry, I

20    can't say more than that at the moment.

21            JUDGE ORIE:  I do understand.  At the same time, this does not --

22    I mean, these are two, two exercises first, the reduction of the

23    indictment, and a realistic assessment of the time needed for case

24    presentation.

25            So I would -- if you would commit yourself to at least look at a

Page 595

 1    sample by the end of this month, then, Madam Uertz-Retzlaff, we might

 2    continue with the other exercise at the same time.  Yes.

 3            MS. UERTZ-RETZLAFF:  Yes.  Thank you, Your Honour.

 4            JUDGE ORIE:  Because whether or not reduced, it would have the

 5    same -- well, I wouldn't say problem.  We would have the same issue of

 6    carefully assessing how much time we would need for case presentation.

 7            Then I would like to --

 8            MS. UERTZ-RETZLAFF:  Your Honour.

 9            JUDGE ORIE:  Yes.

10            MS. UERTZ-RETZLAFF:  Your Honour, before you move on.

11            JUDGE ORIE:  Yes.

12            MS. UERTZ-RETZLAFF:  I actually had a matter related to the

13    commencement of trial.

14            JUDGE ORIE:  Yes.

15            MS. UERTZ-RETZLAFF:  That I actually wanted to raise.

16            JUDGE ORIE:  Please do so.

17            MS. UERTZ-RETZLAFF:  Because it came up in the discussions that we

18    had with Defence counsel and his team.

19            The Prosecution has, in fact, already a list of the witness order

20    in which it wants to call its witnesses, and we have already shared this

21    list with the Victims and Witness Unit because a lot of protective

22    measures needs and practical things have to be made.

23            The 11 first witnesses are all insider witnesses, and most of them

24    are called as so-called viva voce witnesses, but we will bring for all of

25    them an 89(F) submission in the form that you have one already.  And the

Page 596

 1    question is whether the Defence, and they have addressed it with us, is

 2    able to actually deal with such an intense start of the trial, and

 3    Mr. Hooper had raised some concerns, and probably it's better to discuss

 4    it now because --

 5            JUDGE ORIE:  Well, as a matter of fact, the next item on my agenda

 6    was whether we would have five days a week hearing programme, or whether

 7    it would be, as I do understand, less.

 8            I also understood that the Defence would request a four-day week

 9    to manage the material.  I don't know whether, on the basis of your

10    discussions with Madam Uertz-Retzlaff, Mr. Hooper, whether it is still the

11    same?

12            MR. HOOPER:  Yes.  In fact, we might even go for less.  But

13    realistically our application is that we sit for four days.

14            JUDGE ORIE:  Yes.  The Chamber has been informed about this

15    request.  It has not decided upon it yet, but has considered it, and is

16    wondering whether, if that would be the schedule, well, let's say, for

17    until after the Christmas recess, whether that would already help you out

18    at a level acceptable?

19            MR. HOOPER:  Yes.  It would.  And it could be subject to review.

20            JUDGE ORIE:  Yes.  Of course, you will understand, Mr. Hooper,

21    that the Chambers are seeking to use our facilities as efficiently as

22    possible.  Of course, never at the expense of the fairness of the trial,

23    but nevertheless we are trying to accommodate the parties to the extent

24    possible, and at the same time, we urge the parties, and ourselves, to do

25    whatever we can to not have these courtrooms empty and not leave time

Page 597

 1    unused which is available to us.

 2            From the mere fact that I say would that help you out, you could

 3    understand that we have understanding for the problems you are facing in

 4    the present situation.  You said, of course, subject to review.  Of

 5    course.  And nothing is ever for certain, but we will then further

 6    consider that, that at least such a limited period of time in which we

 7    would be sitting not the full five days a week, would accommodate you at a

 8    level which would make it workable, if to say.  Is that well understood?

 9            MR. HOOPER:  Yes, thank you.

10            JUDGE ORIE:  Yes.  Madam Uertz-Retzlaff.

11            MS. UERTZ-RETZLAFF:  Your Honour, could I please continue --

12            JUDGE ORIE:  Yes.

13            MS. UERTZ-RETZLAFF: -- with one point that I would like to make?

14            JUDGE ORIE:  Yes.

15            MS. UERTZ-RETZLAFF:  It relates also actually to the protective

16    measures as well.

17            JUDGE ORIE:  Yes.

18            MS. UERTZ-RETZLAFF:  We have -- we want to take the insiders first

19    because, first of all, it's logical as we think.  But secondly, this order

20    is needed under the -- this order is needed under witness protection

21    aspects, and I would like to go into private session briefly, Your Honour.

22            JUDGE ORIE:  Yes.  We will turn into private session, Madam

23    Registrar.

24          [Private session] [Confidentiality partially lifted by order of Trial Chamber] 

25            THE REGISTRAR:  We're in private session, Your Honour.

Page 598

 1            JUDGE ORIE:  Thank you, Madam Registrar.

 2          MS. UERTZ-RETZLAFF:  Your Honour, the (redacted) witnesses are most

 3    vulnerable as we think for intimidation in the time-period between

 4    disclosure of the identity to the Defence and the actual testimony.  And I

 5    am not suggesting here that the Defence would disclose information.  I am

 6    not suggesting that at all, and I do not expect that at all.

 7            The Defence, however, has to disclose the names of these

 8    particular witnesses to its investigative staff, and they, in turn, will

 9    have to start to ask questions about these people in the region, and

10    that's how we fear their identity will get at least known to certain

11    people, including the police, and that means, from then on, the witnesses

12    would be in a risk, in a risk situation.

13            The Prosecution, therefore, has scheduled the (redacted), the most

14    vulnerable (redacted) for the first period of time in this trial, so that

15    this particular sensitive time-period is as short as possible.

16            In addition, certain temporary protective measures that I am not

17    able to address right here now in the presence of the Defence cannot be

18    kept in place for months and months and months.  It can only be kept in

19    place for a very limited time-period.

20            Therefore, we would like to stick to this witness order that we

21    have in mind, and if the Defence could not meet that, we should know that

22    now, in advance.  And it is definitely something that is of importance.

23    And if the Trial Chamber and the Defence would agree to have that 30 days

24    before testimony models of delayed disclosure, that would definitely be

25    helpful and we would be then much more flexible.

Page 599

 1            JUDGE ORIE:  Yes.  Now we are talking about four days a week

 2    sitting.  So starting at, I wouldn't say a slow pace but at least a slower

 3    pace than usual, would that seriously interfere with what you had in mind,

 4    as far as the (redacted) witnesses are concerned?

 5            MS. UERTZ-RETZLAFF:  If we could still start with them?  Of course

 6    there is a delay, then, certainly.  But I think it wouldn't be such a

 7    problem, if they -- but if the Defence, of course, would, for instance,

 8    after the first (redacted) stand up and say now we need a month to prepare

 9    this and the cross-examination can only take place later on, then we

10    really would have a problem.

11            JUDGE ORIE:  Yes.  I do understand that.  How many days are

12    scheduled for these (redacted) witness, the first, what did you say, 11, I

13    think, including cross?

14            MS. UERTZ-RETZLAFF:  I would now actually have to count.  The

15    first 11, about 22 days.

16            JUDGE ORIE:  22 days.  So that should be easily be finished before

17    the Christmas recess?

18            MS. UERTZ-RETZLAFF:  Yes.  Yes, Your Honour.

19            JUDGE ORIE:  Yes.  If we start early November, even if at a pace

20    of four days a week, you say 22 days.  That would be November -- well,

21    let's say, apart from opening statements, another three and a half weeks,

22    which would be 14 days and then the -- yes.  14 days and another 8 days

23    that would bring us into the first two weeks of December.  It would just

24    fit, because I think the Christmas recess starts at mid-December, isn't

25    it?

Page 600

 1            MS. UERTZ-RETZLAFF:  Yes.

 2            JUDGE ORIE:  Yes.

 3            MS. UERTZ-RETZLAFF:  Yes, Your Honour think it is the 18th.

 4            JUDGE ORIE:  Yes.  So four days a week.  And then of course it

 5    might be very important for you, Mr. Hooper to know as early as possible

 6    who these witnesses would be so that you are able to start preparing for

 7    them immediately.

 8            MR. HOOPER:  Yes, that is our concern, about the request for the

 9    order.  And we have made our responses in respect to the seventh and

10    eighth seeking of protective measures, our responses to that.  And I don't

11    add anything more to that, to that today.

12            But in the context of the ordering of witnesses in the trial, we

13    have, as you know, or may know, asked the Prosecution not to call (redacted)

14    witnesses straight off, because it would put a considerable strain on our

15    resources and our abilities to effect a fair trial, in our view, and that

16    there are alternative witnesses that could be called, crime base witnesses

17    for example that would, in fact, involve less of a potential of damage to

18    fair trial if called at the outset of the trial.

19            JUDGE ORIE:  Yes, that's a different balance to strike.

20            MR. HOOPER:  It is.

21            JUDGE ORIE:  Well, I think, first of all, one of the things before

22    we turn into open session again, Madam Uertz-Retzlaff, one of the issues

23    would be that if we would not finish -- if we would start with the (redacted)

24    witnesses, if we would not finish before the Christmas recess, there would

25    be an extension of additional protective measures, which you did not want

Page 601

 1    to elaborate upon, which I fully understand, for another three weeks

 2    anyhow.

 3            Yes, let's turn into open session again.

 4                          [Open session]

 5            THE REGISTRAR:  Your Honours, we're in open session.

 6            JUDGE ORIE:  Yes.  Thank you, Madam Registrar.

 7            I would very much like to urge the parties to see whether they can

 8    reach an agreement on what type of witnesses to start with, and whether it

 9    should be a monolithic block of one type of witnesses or a monolithic

10    block of another type of witnesses, or whether it could be a couple of

11    crime base witnesses first, and then the whole block of another type of

12    witnesses.  Because of course we could decide the matter, since even the

13    order is -- order of presenting evidence is under the supervision of the

14    Chamber.  But if the parties could come to an agreement on this matter, I

15    think that would be, by far, preferable from the Chamber imposing an order

16    on this matter, not knowing exactly to what extent harm would be done to

17    one interest or to another.  So therefore the parties are urged to see

18    whether any agreement could be reached on this matter.

19            MS. UERTZ-RETZLAFF:  Yes, Your Honour.  Thank you.

20            JUDGE ORIE:  Any other matter in this respect?

21            MR. HOOPER:  Yes.  One matter.  The final witness list.

22            JUDGE ORIE:  Madam Uertz-Retzlaff.

23            MS. UERTZ-RETZLAFF:  Your Honour, Mr. Hooper has the final witness

24    list.  The only -- it's the final witness list that we filed with the

25    Court.  And of course we can never exclude that suddenly a witness shows

Page 602

 1    up we don't know about yet.

 2            JUDGE ORIE:  Yes.

 3            MS. UERTZ-RETZLAFF:  And that is, of course, something that will

 4    always happen in each trial if something comes up.  It will happen to us.

 5    It may happen to the Defence.  So that cannot be excluded.

 6            JUDGE ORIE:  Yes.

 7            MS. UERTZ-RETZLAFF:  But, indeed, you have the witness list.

 8            What always -- also happens, and I have that experience, that a

 9    witness dies, a witness that -- or a witness gets sick and needs to be

10    replaced.  That can never be excluded from --

11            JUDGE ORIE:  No, no, of course, that goes without saying, Madam

12    Uertz-Retzlaff.

13            I do understand the list is as final as possible under the

14    circumstances.  I stress that if you say so, Madam Uertz-Retzlaff, that

15    the Chamber relies upon this information, because I have experienced

16    situations where the final witness list was updated almost on a weekly

17    basis, of course I'm exaggerating, but for both parties I would say make

18    these lists such that we can work with them and not just them being a mere

19    guess or speculation.  But I trust that you have given sufficient

20    attention to that.

21            Mr. Hooper, so you have the list?  Yes?

22            MR. HOOPER:  Yes.  We have the list.  I think the point, and it's

23    well made by Mr. O'Shea in my ear there, is that if it is endorsed, as it

24    were, by the Chamber as the final witness list, then it means that the

25    Prosecution can only move a further witness through a motion.

Page 603

 1            JUDGE ORIE:  Yes.

 2            MR. HOOPER:  And that's our understanding of the position.  I'm

 3    grateful to my friend on the other side for nodding so that we know where

 4    we are at.

 5            JUDGE ORIE:  At the same time you will understand that our

 6    ongoing, I wouldn't say dispute but our ongoing conversation with the

 7    Prosecution on the reduction of the -- might influence the finality of

 8    that.

 9            MR. HOOPER:  Indeed.  We're encouraged smaller rather than larger

10    in any event, and we understand that, yes.  Thank you very much.

11            JUDGE ORIE:  Then the next issue I have on my agenda.  I think it

12    can be very brief on that.  I don't know how important or relevant it

13    still is, but I think the Defence has asked for further interpretation of

14    the Chamber's order that the accused is not allowed to represent himself

15    and the Defence request whether it is able to defer a trial to the

16    accused, let's assume that he once appears.  To defer a trial, the Chamber

17    has, I think, clearly indicated in its order that Mr. Seselj's

18    participation in the proceedings will be through counsel unless, having

19    heard from counsel, the Chamber determines otherwise.

20            So we would need to hear from you why it is necessary for the

21    accused to take the floor in a specific situation before we will consider

22    that.

23            Mr. Hooper, that's slightly different from how you seem to have

24    understood our order.

25            MR. HOOPER:  I do see the order certainly in that way, because

Page 604

 1    it's expressed in that way, that Mr. Seselj will, in fact, participate in

 2    this trial through counsel.

 3            The real position is, it certainly will assist us if in addressing

 4    the interface or modalities, as it were, of Mr. Seselj's participation in

 5    the case, if I may express, as I have in fact already, or I can express

 6    now, a possible way in which this might develop.

 7            Now, first of all, I acknowledge as assigned counsel that this

 8    question of deferring to an accused or to this accused will be done only,

 9    of course, through the Chamber and with the permission of the Chamber.

10    But it may be possible for all of that for me to be able to say, well,

11    we're in this position.  Let's imagine that the first witness has been

12    called and given his or her evidence in-chief.  And the moment comes now

13    for the Defence to cross-examine that witness.  Now, with either

14    particular leave in respect of that witness, or perhaps even as a general

15    principle, subject to one other matter I will come to in a moment, it

16    would be commensurate with my function for me, in fact, to get to my feet,

17    but before I questioned that witness to defer to the accused in order --

18    with the leave of the Court to give him the opportunity of putting those

19    matters that he wishes to to the witness.

20            Now, I do that in circumstances where it may be that Mr. Seselj

21    will not want to provide me with instructions, so that's the basis of

22    that.

23            Now, what would happen then?  Well, Mr. Seselj would have his

24    opportunity to put those questions, if he doesn't want to instruct me, at

25    least to be able to put those important matters to the witness that he

Page 605

 1    feels needs to be put.

 2            Of course, this is all conditional on the view that the Chamber

 3    takes of his behaviour.  As assigned counsel, I come into the case knowing

 4    that the Chamber has taken a particular view that's led to an assignment

 5    of counsel in this case.  And I recognise that.  That when it comes to

 6    trial, if the accused is given that opportunity, it may satisfy certain,

 7    certain matters that otherwise will be a difficulty, a lack of

 8    instructions perhaps for example, in my case.

 9            As I see that order, this is not an order that should be

10    interpreted as shutting out Mr. Seselj from the trial.  Not at all.  And

11    this would be perhaps a way forward.  But it would be very much

12    conditional on him participating, if such deferment is allowed, within

13    normal expectations of behaviour.

14            JUDGE ORIE:  Yes.  Mr. Hooper, the Chamber has considered this

15    matter and would not allow.  If Mr. Seselj refuses to give you

16    instructions, and if you do not receive relevant information which would

17    allow you to cross-examine the first witness, then the Chamber will not,

18    for these reasons, allow Mr. Seselj to conduct the cross-examination.

19            It is on the basis of the behaviour of Mr. Seselj until now in

20    these proceedings and on the basis of the other reasons given in the

21    decision of this Chamber, that the Chamber does not wish Mr. Seselj to

22    continue to represent himself.  And allowing him, as the first one, to

23    cross-examine a witness, disregarding what the Chamber imposed upon him,

24    that is that he should conduct his Defence through counsel, is not

25    acceptable to the Chamber.

Page 606

 1            This is not to exclude, as I said, today I said to Mr. Seselj if

 2    there is any health issue he may address the Chamber directly.  This is

 3    not to exclude not at a certain moment -- let me say the following without

 4    even suggesting that I'm deciding matters at this moment.  In another case

 5    before the Tribunal, a Chamber which I presided over, allowed the accused

 6    to put questions, and the accused, who was represented, to put questions

 7    to a witness in addition to the cross-examination by counsel if, for any

 8    specific reason, the accused was better placed or would be in a better

 9    position to put a follow-up question because of his very specific

10    knowledge.  But we always required, in that case, that the accused would

11    first consult with counsel to briefly discuss whether there was a really

12    good reason for him and not for counsel to put the question, counsel, the

13    professional experience of course sometimes helps in the cross-examination

14    of witnesses.  But this Chamber, that's for sure, will not allow -- as a

15    result of a refusal to instruct you, allow the accused to cross-examine

16    the witnesses leaving any remaining questions to you.

17            MR. HOOPER:  Very well.

18            JUDGE ORIE:  If that is clear, which does not under all

19    circumstances exclude that his role, that his participation might develop

20    once we have gained some experience first, perhaps on a very exceptional

21    basis, on how he behaves under the circumstances.

22            MR. HOOPER:  Yes.  Thank you.  That's much clearer.  Thank you

23    very much.

24            JUDGE ORIE:  Yes.  I don't know to what extent the matter will

25    become relevant in the future.  Of course this Chamber still hopes that

Page 607

 1    the accused will instruct you, and of course this Chamber is very much

 2    waiting to hear the best possible Defence in this case, although there

 3    seems to be some disagreement between the accused and the Chamber on what

 4    would be the way to receive that best Defence.

 5            I move to our next subject, 92 bis and adjudicated facts.  I do

 6    understand that we have -- you filed the motion, Madam Uertz-Retzlaff,

 7    regarding 92 bis and adjudicated facts.  I think we have informed you that

 8    92 bis, that the Chamber would not decide for a number of reasons on the

 9    admission of these items until the beginning of the trial, and some time

10    has been given to Defence counsel to respond to your motion regarding

11    92 bis material, that is until the 3rd of November for 92 bis, and until

12    the 22nd of September for -- through the motion of adjudicated facts.

13            But I do understand that you wanted to further address this

14    matter.

15            MS. UERTZ-RETZLAFF:  Yes, Your Honour.  Whatever the final order

16    of the witnesses will be, I assume for one of the first weeks we will have

17    to have a decision on the one or the other motion for admittance of

18    written evidence, and I know that it is a very complex motion and, as I

19    say, as I speak about it, we actually are preparing at the moment a

20    subsequent 92 bis motion capturing evidence that was actually taken in the

21    Vukovar 3 case recently.

22            So what the proposal would be, from the Prosecution is, that as

23    the matter arises for upcoming witnesses, we would actually prepare a list

24    to Trial Chamber for -- with the names of the witnesses or the numbers of

25    the witnesses for which we indeed, for a given week, need a decision.  So

Page 608

 1    that you are aware where it is actually needed, a decision needs to be

 2    made.

 3            JUDGE ORIE:  Yes.

 4            MS. UERTZ-RETZLAFF:  I am also aware that part of the pending

 5    motion is an -- ex parte so the Defence cannot even answer to this

 6    request at the moment.

 7            JUDGE ORIE:  Yes.

 8            MS. UERTZ-RETZLAFF:  So I think when we always provide in advance,

 9    well in advance the names of the people where we need a decision, I think

10    that's probably the best way to proceed.

11            JUDGE ORIE:  Yes.  You set some priorities on the basis of the

12    scheduling of witnesses.

13            MS. UERTZ-RETZLAFF:  Yes.

14            JUDGE ORIE:  Did I understand you well the first 10, 11 witnesses

15    might be 89(F) witnesses rather than 92 bis which --

16            MS. UERTZ-RETZLAFF:  Actually, in relation to -- if the order

17    would be as it is now, there is one witness who has actually testified in

18    another case and who is included in the pending 92 bis motion but only one

19    person.  And I can give you the number, if you like, but I would only do

20    that in private session.

21            JUDGE ORIE:  Yes, I do understand.  That would therefore be 92 bis

22    (D) to be applied, transcript.

23            MS. UERTZ-RETZLAFF:  Yes, yes.

24            JUDGE ORIE:  How many pages is the transcript?  Approximately?

25            MS. UERTZ-RETZLAFF:  I would have to actually have to look.

Page 609

 1            JUDGE ORIE:  Is it 100 or is it 2.000?

 2            MS. UERTZ-RETZLAFF:  It's not 2.000, definitely not.

 3            JUDGE ORIE:  No, no, no.

 4            MS. UERTZ-RETZLAFF:  It's a witness who will speak about military

 5    structures, and I know that he was taken in the Milosevic case very

 6    briefly.

 7            JUDGE ORIE:  Yes.  Well, just to tell you that the application of

 8    Rule 92 bis (D) has a tendency of bringing more material in where it's of

 9    course very much meant to save time.  Sometimes by the large amount of

10    material, sometimes turns out to result in the opposite.  Perhaps not for

11    the Prosecution, but for the Defence and for the Chamber.

12            Okay.  Well, I would like to hear from you that at least the order

13    of witnesses on which we should decide first as far as 92 bis (D) is

14    concerned.

15            MS. UERTZ-RETZLAFF:  Yes.  Thank you.

16            JUDGE ORIE:  Then anything else as far as 92 bis and adjudicated

17    facts are concerned?

18            MR. HOOPER:  Nothing more to add in respect of 92 bis.

19            JUDGE ORIE:  Yes.  Then may I just go back to what was under 4 on

20    the agenda.

21            Mr. Hooper, it is clear from today that Mr. Seselj is not very

22    much inclined to communicate with you in whatever way.  The Chamber does

23    not interfere in whatever way in the -- in how the Defence prepares

24    itself.  But I take it that from the record, you are aware that there was

25    a quite large team of so-called experts, which never gained any official

Page 610

 1    status in this Tribunal.  But due to the fact that we sometimes saw at the

 2    bottom of a submission that it was prepared by one of these members of the

 3    team, that at least they seem to be persons who have some knowledge and

 4    some awareness of this case.

 5            MR. HOOPER:  Yes.  Certainly that's --

 6            JUDGE ORIE:  I leave you to that, just not to --

 7            MR. HOOPER:  Yes.  Yes.  Thank you.

 8            JUDGE ORIE:  Because of course the Chamber does understand what

 9    problems are posed by a situation if counsel is not instructed by his

10    client.  Of course we do not know how matters develop, but of course the

11    Chamber is seeking to create a situation in which the Defence will be as

12    effective as possible, within the limits of our Rules.

13            MR. HOOPER:  Yes, thank you.

14            MR. VAN DER SPOEL:  Your Honour, may I please remark on that

15    observation?

16            JUDGE ORIE:  Yes.

17            MR. VAN DER SPOEL:  On the expert team.  As stand-by counsel, I

18    have had some experience with the communication with expert team members.

19            JUDGE ORIE:  Yes.  I'm not even -- Mr. Van der Spoel, I apologise.

20    Either you had excellent communication with him or no communication at

21    all, the Chamber, as I said, that's the first words I said.  The Chamber

22    does not want to interfere.  I just mentioned the -- what I see as a list

23    of people and I leave it entirely to the Defence, and even your

24    experiences, unless it serves the Defence, the Chamber is not seeking to

25    be informed about it.

Page 611

 1            MR. VAN DER SPOEL:  Okay.

 2            JUDGE ORIE:  Yes?  But I take it that you will certainly share

 3    whatever information you have with Mr. Hooper.

 4            Protective measures.  Mr. Hooper, your further response -- we have

 5    more or less discussed that already.  Response to the seventh and eighth

 6    motion in which you specifically are complaining about not receiving

 7    sufficient information, and Mr. Saxon is reconsidering, or reviewing

 8    whether any further information could be granted, which would better allow

 9    you to respond to the requests in these motions, and that's mainly about

10    redacted witness statements.

11            You have addressed this matter, Mr. Saxon.  I don't think there's

12    any reason to --

13            MR. SAXON:  I'm sorry, I did not hear what you just said.

14            JUDGE ORIE:  Oh, I think I said counsel doesn't object to the

15    measures, in principle, with respect to redacted witness statements

16    relevant to the applications we discussed immediately.  So that's a matter

17    we dealt with sufficiently earlier this afternoon.  Unless you would like

18    to add anything?

19            MR. SAXON:  No, Your Honour.

20            JUDGE ORIE:  Then --

21            MR. SAXON:  Your Honour, if I may interrupt the Chamber.

22            JUDGE ORIE:  Yes, yes.

23            MR. SAXON:  There was one other matter related to protective

24    measures.

25            JUDGE ORIE:  That's the last matter which perhaps should be dealt

Page 612

 1    with in --

 2            MR. SAXON:  In private session, Your Honour.

 3            JUDGE ORIE:  If we could turn to private session?  Or should it be

 4    closed session?  In this courtroom it's always a bit -- yes, perhaps

 5    closed session is better.

 6          [Private session] [Confidentiality lifted by order of Trial Chamber]

 7            THE REGISTRAR:  We're in private session, Your Honour.

 8            JUDGE ORIE:  Yes.  Could we turn it to closed session, Madame

 9    Registrar.  I said private session first, but we are now in -- private

10    session with the curtain down is in closed session.

11            So we are in closed session.

12          [Closed session] [Confidentiality partially lifted by order of Trial Chamber] 

13            JUDGE ORIE:  That is, I take it, the Rule 17 witnesses?

14            MR. SAXON:  Yes, Your Honour.

15            JUDGE ORIE:  Please.  Proceed.

16            MR. SAXON:  Well, there was apparently some concern expressed

17    about the status of three witnesses who are subject to the Prosecution's

18    seventh motion for protective measures.  Those would be VS-1112, VS-1113

19    and VS-1114.

20  (redacted)

21  (redacted)

22  (redacted)

23  (redacted)

24  (redacted)

25            The Prosecution mentioned in its motion, Your Honour, that the

Page 613

 1    Martic Trial Chamber, in a decision of the 13th of January, 2006, provided

 2    or agreed to provide protective measures, including closed session, to

 3    VS-1112.

 4            JUDGE ORIE:  Yes, Mr. Saxon, if I may interrupt you.  I think that

 5    is -- protective measures automatically apply in a subsequent case.

 6            MR. SAXON:  Yes, Your Honour.

 7            JUDGE ORIE:  That's not true for Article 70 protection, what is

 8    not protection of persons but which is protection of material.

 9            MR. SAXON:  Yes.

10            JUDGE ORIE:  There is no rule that says that it automatically

11    applies.  It puts limits on, if witnesses would be called in relation to

12    that material, what could be -- what kind of questions could be put to the

13    witness and what kind of questions could not be put to a witness.  But I

14    think for the protective measures, there is no need, as far as persons are

15    concerned, to a new -- apply for them because they will apply anyhow.

16            However, for the protection of the material, there is no rule

17    which automatically continues its application in the next case.

18            So what I would expect, as a matter of fact, is that if you do not

19    need any further protective measures as far as the persons are concerned,

20    that it's there, and that as far as protection of the material is

21    concerned -- but you're talking about witnesses, but Article 70 has got

22    nothing to do with witnesses has got mainly to do with material, and then

23    of course has some consequences for witnesses called in relation to that

24    material.

25            For those witnesses, I would say the protective measures would

Page 614

 1    still apply, but for the material you should make an application to make

 2    that material -- to make that material protected under Rule 70, because if

 3    a witness is protected, it could be a closed session, it could be

 4    anything.  But the protection of a witness does not exclude to put certain

 5    questions to that witness.  That's not part of the protective measures.

 6            However, it could be a consequence of the protection of material.

 7    And therefore if you would like to have this same effective protection

 8    both of the witness and of the material, you should apply for the

 9    protection of the material, whereas no application needs to be made for

10    the person of the witness, unless you think that it is an incorrect

11    statement of the law, of course, I would like -- this is not a decision.

12    I just gave you my interpretation of Rules 70 and 75.

13            If you would you disagree, please tell me.

14            MR. SAXON:  Your Honour, I would just like if you can indulge me

15    for one moment.  I take the point of Your Honour that the Prosecution's

16    motion does not -- is not based upon Rule 70, that is correct.

17            JUDGE ORIE:  As a matter of fact, Rule 70 deals with information,

18    if the Prosecution is in possession of information.  When I

19    said "material," perhaps I should have said "information," and that

20    information be used, and if finally that information would be introduced,

21    then you would first seek consent.  And you would get the relevant

22    conditions by the entity that has provided you this information, and then

23    it has all kind of consequences.

24            So protection under Rule 70 is different from protection under

25    Rule 75.

Page 615

 1            MR. SAXON:  Your Honour, I take Your Honour's point.  However, the

 2    general intent certainly of the Prosecution's motion, if it perhaps was

 3    not so artfully or clearly written, certainly the spirit was that measures

 4    would be -- measures were being requested effectively under both Rules,

 5    and that is certainly why, in our ex parte submissions regarding these

 6    three witnesses, we laid out what their particular situations were and

 7    what kind of evidence they were prepared to provide, and why they are

 8    subject to Rule 70.

 9            JUDGE ORIE:  Yes.  Since you have now clarified this, Mr. Hooper,

10    is there anything you would like to say?  It might be very difficult for

11    you, the applications being partly ex parte.

12            MR. HOOPER:  I have nothing to say on that issue.

13            JUDGE ORIE:  Yes.  Mr. Saxon, the Chamber will consider whether

14    the motion as supplemented by these oral submissions is a sufficient basis

15    for us to decide.

16            MR. SAXON:  Thank you very much, Your Honour.  We certainly hope

17    so.

18            JUDGE ORIE:  Then I move to the next subject, which is e-court and

19    hard copies of exhibits.  But we first now return into open session and

20    the curtains can be pulled up again.

21                          [Open session]

22            THE REGISTRAR:  We are now in open session.

23            JUDGE ORIE:  Thank you, Madam Registrar.

24            E-court and hard copies of exhibits.  Until now it was not

25    envisaged that the case would be an e-court case, one of the main reasons

Page 616

 1    being that the accused, who then still represented himself, was -- seemed

 2    not to be in a position to deal with the e-court technicalities.  By

 3    assignment of counsel, this situation has changed.

 4            The Chamber would not oppose, in any way, the e-court to be

 5    applied, and the Chamber understands that it's technically possible to

 6    make this case an e-court case.

 7            I would like to hear from the parties.

 8            Mr. Hooper, there is even training available for e-court.  E-court

 9    means a lot of things go on the computer, rather than to have everything

10    on paper and distributed in the traditional way.  I have no experience

11    with it, but from my colleagues who worked with it, I hear that it is very

12    much appreciated and will save a lot of time and resources.

13            MR. HOOPER:  I'm not going to pretend to know what it is.

14            JUDGE ORIE:  But you do not oppose?  That's nice.

15            MR. HOOPER:  Like most things in this case.  Let me just assume

16    that in particular it would relate to exhibits, for example, and I take it

17    that this would be a better distribution of the presentation of the

18    exhibit filed, so --

19            JUDGE ORIE:  Well, I think that paper copies are still there, but

20    we don't carry them around all the time, because they're all available on

21    our screens anyhow.  Of course that would not mean that you would not

22    sometimes want to have paper in your hands.

23            I do not know exactly whether there is one modality which says the

24    parties get one copy of the exhibits or gets this or that.

25            But Mr. Saxon, you're on your feet.  You seem to know more.

Page 617

 1            MR. SAXON:  The reason, Your Honour, the Prosecution asked that

 2    this topic be placed on the agenda, and although we certainly welcome the

 3    Chamber's decision that e-court be used in this case, however after

 4    canvassing some of my colleagues in the Office of the Prosecutor, the

 5    Prosecution believes that there is e-court and there is e-court, and by

 6    that I mean the system is applied or has been applied differently by some

 7    different Trial Chambers.  And you just mentioned, for example, a comment

 8    that you made, Your Honour.  For example, paper copies are always there.

 9            Obviously the purpose and intent of the development and use of the

10    e-court system is to reduce the use of paper as much as possible, to save

11    money for the Tribunal, and the time and labour of everyone who is working

12    so hard to make these trials happen.

13            I'm aware, though, for example, of at least one Trial Chamber

14    where the Presiding Judge does require, for example, that the Prosecution

15    provide, at least him, if not all three Judges, with paper copies of every

16    document or every exhibit that is used in court.  I have also been told

17    about other trials where the e-court system was used more orthodoxically,

18    if that is correct English, and there was very little or no paper exhibits

19    used at all.

20            And so the reason the Prosecution has brought this up is, we

21    simply need to hear from the Chamber what the Chamber's expectations are,

22    so that we can be prepared when the trial begins, one way or the other.

23            JUDGE ORIE:  Yes.  Let's be very practical.  I have got no

24    experience in e-court.  You say that there is not one e-court but there

25    are several modalities of e-court.  Mr. Hooper says he doesn't even know

Page 618

 1    what it is.  So, fine.

 2            I suggest the following:  That who is not familiar with e-court,

 3    including myself - and I took already arrangements for that - tries to get

 4    the proper training as far as the technicalities are concerned.  That

 5    everyone, I with my colleagues, you Mr. Saxon with your colleagues, you

 6    Mr. Hooper with your colleagues, try to find out what the major

 7    inconveniences are, and that we then perhaps have a meeting in chambers

 8    with the two parties, perhaps in the presence of someone who knows all the

 9    technicalities of e-court, and we will then exchange views on what you

10    would like, what you would like, what I would like, and then see whether

11    we can come to a standard to be applied in e-court.

12            Mr. Hooper, I must be a bit -- I must admit that since you have

13    said "I don't know even what it is" I would like to give you at least a

14    couple of days to make fundamental opposition against e-court, if your

15    first enquiries would learn you that it is something never to be accepted

16    by Defence, but I would very much like to go for the e-court and see that

17    we work out a practical solution on how much paper there still will be

18    left, what we leave to printing by the parties themselves, what we require

19    from the parties to produce in court.

20            Is this a -- and I would suggest that we will try to deal with the

21    matter somewhere in the first half of October, which gives us sufficient

22    time, I take it, for the preparation.

23            MR. HOOPER:  Thank you.

24            JUDGE ORIE:  Would that be acceptable, Mr. Hooper?  I see you

25    nodding.  Yes, Mr. Saxon, the same.

Page 619

 1            So therefore this suggestion is adopted.

 2            Then my next point on the agenda is the accused health and

 3    conditions of detention.  Out of -- I appreciated very much to hear from

 4    Mr. Seselj.  He is not here anymore.  Is there anything, Mr. Hooper, that

 5    you are aware of which I should know in relation to the health conditions

 6    and the detention conditions of the accused?

 7            MR. HOOPER:  No.  I've made no specific enquiry, though I did

 8    speak to the commandant of the detention facility yesterday in a general

 9    way and certainly nothing was mentioned to me of anything that I should

10    raise or draw to Your Honour's attention.

11            But I will undertake to have a further enquiry made and I would

12    have thought there would be no difficulty or no difficulty that I can see

13    in terms of confidentiality and the like.

14            JUDGE ORIE:  Of course.

15            MR. HOOPER:  Of why I should not, in fact, be informed as to any

16    difficulties that may exist.  And if there are difficulties that I feel

17    need to be brought to your attention, I will do so immediately.

18            JUDGE ORIE:  Yes.  And don't hesitate to do that and really

19    immediately and not wait until the next Status Conference, or you will

20    find ways to communicate with the Chamber.

21            MR. HOOPER:  Yes, yes.

22            JUDGE ORIE:  -- in such a way that -- without -- apart from

23    perhaps in health matters it might even exclude in the circumstances the

24    Prosecution.  But of course usually to address the Chamber, even by

25    informal means with always giving a copy to the Prosecution.

Page 620

 1            MR. HOOPER:  Yes, thank you.

 2            JUDGE ORIE:  Yes.

 3            MR. HOOPER:  There is one matter, a final matter.

 4            JUDGE ORIE:  Any other matters, yes.

 5            MR. HOOPER:  And in a way, these really arose earlier.  But I

 6    thought it might be helpful if I can just give an indication of where we

 7    are in respect of the outstanding Prosecution motions, many of which we've

 8    already dealt with this afternoon.

 9            JUDGE ORIE:  Yes.

10            MR. HOOPER:  And it won't take me very long to go through it.

11            There are, at present, I think, a total of -- or there were, say,

12    a total, I think, of 10 or maybe 11, I think 10 outstanding motions,

13    including the one that was filed on the 11th of September, the latest

14    motion dealing with two witnesses.

15            We dealt this afternoon already with their motion of the 92 bis

16    motion, which just for the record, is dated - give me one moment - 24th of

17    January, 2006.

18            JUDGE ORIE:  Yes.

19            MR. HOOPER:  It's been referred to in previous orders, I think, as

20    8th of March, 2006.  I'm unsure where that date comes from, but the date

21    on the face of the document is a January date.  And we've dealt with that

22    today.  And we, at present, have a response time of the 3rd of November,

23    and our view is given the extent of material, we will need at least that

24    time.

25            But of course if we can assist by dealing from time to time with

Page 621

 1    it piecemeal in respect to individual witnesses, then of course we will

 2    try and do that and I'm sure there would be a expectation that we should.

 3            JUDGE ORIE:  Yes.  I take it there would be and could be recent

 4    agreement to make batches of responses available, so then the Chamber will

 5    follow that so that you are not under such a burden that you ...

 6            MR. HOOPER:  Yes.  And it's tied in with other matters of course,

 7    and timings and witness orders and witness batting orders and the like.

 8            JUDGE ORIE:  Yes.

 9            MR. HOOPER:  So the Chamber is aware of that.  But at the moment,

10    we don't need to ask for further time.

11            JUDGE ORIE:  No.  But I mean of course the Defence has

12    specifically asked the attention of the Chamber to one 92 bis (D) witness,

13    and therefore, of course, if he could receive a response perhaps even for

14    this one witness early so the Chamber can decide on that specific part of

15    the request.

16            MR. HOOPER:  The second matter raised is the motion dated 23rd of

17    May, 2006, motion to take judicial notice of adjudicated facts, 94(B), for

18    which we have a date of 22nd of September to respond.

19            There is 418 facts that are divided into three categories in

20    respect to that motion, but we will, in fact, respond by the 22nd of

21    September, though we will be taking exception in respect of certain

22    matters.  But we will have a full response to those matters by the 22nd of

23    September.

24            The motions, seventh and eighth motions for protective measures,

25    we've responded to and we have dealt with that.

Page 622

 1            JUDGE ORIE:  Yes.

 2            MR. HOOPER:  We then have a series of motions that deal with

 3    experts.  The first motion deals with the -- dated the 31st of March,

 4    2006, confidential motion re an expert report with an ex parte annex.

 5    Obviously we have limited insight into that particular application.  We do

 6    not oppose it, though we would ask that we have the redacted document.

 7            JUDGE ORIE:  Yes.  So this is oral response.

 8            MR. HOOPER:  Yes.  An oral response, and that's clear.

 9            JUDGE ORIE:  Yes.  That's good.

10            MR. HOOPER:  We then have at the moment the filing of three -- or

11    submission of experts reports, each one accompanied by a motion for

12    admission of transcripts 92 bis (D).

13            The first is dated -- well, I think they're all dated the same

14    day, or certainly two of them are.  One dated the 13th of July, 2006,

15    submission of the expert report of Ewa Tabeau; and in the second one is a

16    report by Dr. Strinovic, that is also on a motion dated 13th of July,

17    2006; and the third one is dated the 14th of July, 2006, and is the report

18    of Ivan Grinjic, or Grinjic.

19            Now in respect of those three reports, in respect of the motion

20    that accompanies them for admission of transcripts, we request an oral

21    response, more time -- or should I say an oral, an oral request, more time

22    to respond to each of those.

23            JUDGE ORIE:  Yes.  How much would you need?

24            MR. HOOPER:  We would like the 3rd of November.  That is, in my

25    submission, a matter that should not prejudice the Prosecution by not

Page 623

 1    choosing to call those witnesses in any event as we understand it this

 2    year.

 3            JUDGE ORIE:  At an early stage.

 4            MR. HOOPER:  It would give us time bearing mind the --

 5            MS. UERTZ-RETZLAFF:  Correct, Your Honour.

 6            JUDGE ORIE:  Madam Uertz-Retzlaff, you do not oppose this request?

 7            MS. UERTZ-RETZLAFF:  No, Your Honour, we don't.

 8            JUDGE ORIE:  Then time is granted until the 3rd of November for

 9    these three expert witnesses.

10            MR. HOOPER:  Thank you very much.

11            Now I also have a query in respect of --

12            JUDGE ORIE:  Yes.  Mr. Hooper, I am looking at the clock.  I know

13    that the tapes -- the tape is running out soon.  If we could manage to

14    finish within the next five minutes, then we do not have to resume anymore

15    this afternoon.

16            MR. HOOPER:  Very well.  I won't trouble you then with the next

17    point.  I will just alert the Prosecution, it is the report of

18    Dr. Stankovic, an autopsy report.  I am just wondering what his status is

19    in the case, and if my friends can help me with that once we've risen.

20            And finally there is the judicial notice of documentary evidence

21    dated the 14th of July, 2006, rather, motion of the 14th of July, 2006,

22    94(B).  We will ask that we be permitted to the 1st of October to respond

23    to that.

24            JUDGE ORIE:  Any objection, Madam Uertz-Retzlaff.

25            MS. UERTZ-RETZLAFF:  No, Your Honour.

Page 624

 1            JUDGE ORIE:  Then you have got until the 1st of October to respond

 2    to that motion, Mr. Hooper.

 3            MR. HOOPER:  And the final matter is the motion served the 11th of

 4    September, 2006, motion for admission of statements which you've dealt

 5    with, Witnesses 18 and 52, Rule 89(F), and we'd ask there we have until

 6    the 14th of October.

 7            JUDGE ORIE:  Madam Uertz-Retzlaff, any objection?

 8            MS. UERTZ-RETZLAFF:  Your Honour, my colleague just raises one

 9    issue.  When would we then get the decision?  I mean, what we have filed

10    are not very complex motion, it is not a very complex motion.

11            JUDGE ORIE:  Yes.

12            MS. UERTZ-RETZLAFF:  It's a few documents and --

13            JUDGE ORIE:  When do you need the decision?  In order not to get

14    any trouble?

15            MS. UERTZ-RETZLAFF:  That very much depends on, actually, how we

16    arrange the order now.

17            JUDGE ORIE:  Okay.  Could you -- could you then perhaps include

18    that in your conversations about the order, and if you say we would very

19    much like to receive a Chamber's decision within a couple of days, the

20    problem is the month of October is, of course we have scheduled --

21    initially we intended to start early October.  It has now been acceptable

22    and for understandable reasons delayed to the 1st of November, but of

23    course our agendas are now filled up with other matters in October.  But

24    if you could include that in your conversations and, if need be, to

25    already informally inform the Senior Legal Officer involved in this case.

Page 625

 1            MS. UERTZ-RETZLAFF:  Yes, Your Honour.  I only wanted to raise

 2    that it is not a very complex motion.  The two witnesses are not insider

 3    witnesses, and we would, actually, prefer to have a very early decision on

 4    that.  We can use this 89(F) procedure.

 5            JUDGE ORIE:  Yes.  You include that, and Mr. Hooper, you are

 6    trying to seek an agreement with the Prosecution on that.  If not, the

 7    request is there.  You would like to have until the 14th of October and --

 8    so if we don't hear from you, well, let's say, within -- until next week,

 9    Wednesday, we will give the decision whether you have until the 14th of

10    October.  If we hear prior to that from you, then --

11            MR. HOOPER:  All right thank you.

12            JUDGE ORIE:  -- the Chamber will consider to adopt what you agreed

13    upon.

14            Anything else?

15            MR. HOOPER:  No other matters.  Thank you.

16            JUDGE ORIE:  Mr. Saxon?

17            MR. SAXON:  Your Honour, I realise time is pressing.  Very, very

18    briefly.  The Prosecution would simply encourage the Defence, as soon as

19    possible, to arrange with the Registry to get an account on the electronic

20    disclosure system, the EDS.  We think that will facilitate both -- the

21    work of both parties, both the Prosecution and the Defence, that if there

22    are collections of material that can be made available they can access via

23    the Internet.

24            JUDGE ORIE:  I don't know if you know what it is Mr. Hooper, yes

25    or no, but ...

Page 626

 1            MR. HOOPER:  I'm afraid I do, yes.

 2            JUDGE ORIE:  You applied for an account to be -- to get that as

 3    soon as possible?

 4            MR. HOOPER:  Do I need to do that?

 5            JUDGE ORIE:  That's what I understand.

 6            MR. HOOPER:  Well, it's a Registry matter, and I think it's a

 7    question of being keyed into it.

 8            JUDGE ORIE:  Yes.  We have one minute to go, but it will be taken

 9    care of, that you will not be deprived from any electronic disclosure.

10            MR. HOOPER:  Thank you.

11            JUDGE ORIE:  If there is nothing else, we will adjourn.  I thank

12    very much the interpreters and the technicians for their indulgence to

13    stay for all of this time.  One small advantage is that we don't have to

14    resume.

15            We adjourn sine die.

16                          --- Whereupon the Status Conference adjourned at

17                          4.19 p.m