1 [Open session]
2 Monday, 10 September 2001
3 [Status Conference]
4 [Open session]
5 --- Upon commencing at 3.04 p.m.
6 JUDGE MUMBA: Yes. This is a Status Conference for our trial
7 which we started this morning, and it is in open session. So there are a
8 few matters which we need to discuss for purposes of conducting an
9 expeditious trial in view of the fact that there are many other trials
10 going on at the same time and we have to share the courtroom. For us in
11 this Simic case, because we have four accused persons and we have one who
12 is a patient, we are going to use court number 3 throughout these
13 proceedings. That gives us some advantage, but we shall have to share the
14 courtroom at one time or another, in fact, most of the time. Either we
15 will be able to sit in the mornings or sit in the afternoons.
16 On the days when we are able to use the courtroom both morning and
17 afternoon, it will depend on the availability of the suitable bed for the
18 accused Mr. Simic, and also on the status of his health. As much as
19 possible the Trial Chamber would like to have the trial continue with him
20 present, as much as possible, so we would like his counsel to make sure
21 that he is looked after properly so that we don't have a breakdown.
22 Because if he breaks down, that means the trial will have to be adjourned
23 and that will cause tremendous delay, which will make it impossible for
24 the other accused in detention waiting for their trials to have their
25 trials start. So we have to bear that in mind at all times.
1 The first question I have to ask the Prosecution: Subject to our
2 decision on one of the witnesses, one of the motions which we discussed
3 this morning, subject to our decision, how many witnesses in all is the
4 Prosecution calling?
5 MR. DI FAZIO: If Your Honours please, we will have 43 certain
6 witnesses. If our motion to include Roko -- I hope I've got the name
7 right, Jelavic, is successful, that takes us to 44. In addition, Your
8 Honours will be aware that there was a 92 bis application made to admit
9 the evidence of some experts, transcript evidence, and the pre-trial
10 Chamber ordered that three of them be made available for
11 cross-examination. I've got the names of two of them. One of the
12 gentlemen's name is Jerko Doko, the other one is Osman Selak, and there's
13 a third gentleman whose name I just cannot remember at the moment, but
14 they are the experts whose transcript evidence was sought to be tendered.
15 And I dare say, we would have to produce them for cross-examination, so I
16 suppose you could view them as Prosecution witnesses.
17 JUDGE MUMBA: Yes. We'll take the time for the Prosecution case.
18 MR. DI FAZIO: Now, I'm informed that one of them has passed
19 away. I've only just recently been informed of that and I can't tell the
20 Court which one it is. If that is correct, then of course we move from 44
21 to 46 witnesses, 46 witnesses.
22 JUDGE MUMBA: Who actually physically appear?
23 MR. DI FAZIO: Yes, who will be called to give live evidence.
24 Yes, and those numbers include Mr. Todorovic. I know there's some legal
25 controversy over his evidence and it includes the demographics lady Ewa
1 Tabeau. But that's what it comes to, 46.
2 JUDGE MUMBA: Now, when you look at the case for the Prosecution,
3 the witnesses, including the cross-examination which the Trial Chamber is
4 aware you can't control, but generally looking at your case, how many
5 weeks do you think you need to complete the presentation of the
6 Prosecution case, assuming that the Trial Chamber will sit a half day
7 only, either mornings or afternoons only?
8 MR. DI FAZIO: Yes. That's a complicated calculation, in actual
9 fact, if Your Honours please, and it's not, with respect, that easy to
10 do. I haven't actually had the time, since I was informed that that was
11 going to be one of the issues, to do any sort of precise or as precise as
12 one can be, calculation to assist you on that. I know at the Pre-Trial
13 Conference the Prosecution was informed that we be given until
14 mid-November to complete our case, and you will see from the list of
15 witnesses that was filed as part of the 65 ter requirements that we've
16 given estimates of the amount of time, hours and days, and that is of
17 course a reference only to the evidence in chief of those particular
19 I haven't gone through that exercise again, so I can't give you
20 any precise figure. My best estimate standing here at the moment is that
21 we would go -- we would have to go at least well into November. That's my
22 view. And I hate to say it, but I think that's an optimistic estimate.
23 If you want me to give a more precise figure, I can do so, but I'm not
24 armed with -- I haven't done the calculation as I stand here. But that's
25 my best estimate, at least until the end of November.
1 JUDGE MUMBA: All right. That's okay.
2 Let's deal with exhibits, the procedure for numbering and
3 accepting exhibits for both parties. Even Defence counsel should listen
4 to this precisely. We have different systems in different Trial Chambers,
5 but the system I prefer is one where, where parties have an agreed list,
6 like the Prosecution have a list of exhibits seen by the Defence counsel
7 and the Defence counsels have indicated that authenticity is not a
8 problem. We may raise an issue on the correctness or whatever during the
9 trial. Fine, we take it that that list is agreed, the Prosecution list.
10 You will normally have numbers, right, but that list, even if it's agreed,
11 and I know that in this case at pre-trial stage there was something like
12 admission -- admitting some of the exhibits. Now that the trial has
13 formally started, those lists have to be formally presented so that they
14 become part of the evidence on record, so that they can be referred to
15 during writing the judgement or during the submissions.
16 So the procedure will be whatever list was agreed upon or
17 presented, the Pre-Trial Chamber will have to be formally presented during
18 the trial at whatever stage you want to do so, with whichever witnesses
19 will have to speak about those exhibits, and after their formal
20 presentation, if there is no objection, or if the objection is overruled,
21 or it may be a condition admission. They may say we have no objection at
22 the moment, but later on we may have to discuss the document again, or the
23 same, the document will be admitted into evidence and it will be given a
24 formal exhibit number by the Registry. And the numbering will be -- we
25 will have a prefix P if it's the Prosecution who are presenting that
1 document, or D if it's the Defence who are presenting that document.
2 Now, it does not matter who prepared the document. What matters
3 is who is presenting that as part of their evidence. That's why P or D
4 will be decided. It may be a statement taken by the Prosecution but not
5 presented by the Prosecution, presented by the Defence, if they want to
6 use it in their case, then it will have a D number. It may be vice
7 versa. It may be a document prepared by the Defence, the Prosecution want
8 to rely on it, fine.
9 The other important thing about exhibits is that the Trial
10 Chamber, as much as possible, would not like to have exhibits brought in
11 at the last minute. For instance, the Prosecution may not be allowed to
12 produce exhibits -- to present exhibits after they have closed their
13 case. Now, we know the problems with that, because it will be like a
14 surprise on the Defence, one; the Defence will have had no opportunity to
15 cross-examine the relevant witnesses of the Prosecution on the particular
16 document. So the Trial Chamber will be very, very reluctant, if I dare
17 say, we will not agree to have documents admitted into evidence by the
18 Prosecutor after the Prosecution case has been closed.
19 There are exceptions to that. In the event that the Defence
20 during their case bring up a new point, completely new point and a
21 completely new document may be recently discovered during their case. The
22 issue will be dealt with then and the Prosecution can make their
23 presentations if they need that type of document as part of their case.
24 Of course, we all know the procedures. But as much as possible for your
25 case, what you are relying upon must be produced during the Prosecution
2 Similarly, the Defence will be treated the same when it comes to
3 exhibits. They must, as much as possible, produce all their exhibits
4 during the main Defence case. Because issues of rebuttal and rejoinder,
5 we'll deal with them at the right time. And as much as possible, this
6 Trial Chamber will not permit any party to have a second bite at
7 the cherry. If any party raises an issue that they need rebuttal for the
8 Prosecution or rejoinder for the Defence because they didn't know, we'll
9 go into the nitty-gritty of diligence on the part of counsel, how much
10 investigation, how much preparedness should have been done
11 before the trial started.
12 So we'll be very, very reluctant to allow counsel, either side, to
13 produce extra witnesses, extra evidence. Everything must be done now.
14 Because we all know how long ago the indictment was drafted. Of course
15 there have been changes, of course there have been further investigations,
16 of course we know that some documents are being released as time goes.
17 But as much as possible, we should try to produce our evidence, especially
18 document-wise, during the case, when we are presenting our case.
19 Any comments on that?
20 MR. DI FAZIO: Only to say that it is my clear intention to ensure
21 that all the Prosecution case, exhibit-wise, at least, is all in by the
22 close of our case. Anything else would be regarded as highly exceptional
23 and highly unusual, and I -- as I stand here, I can see no reason why we
24 would seek to introduce evidence after we close our case. I expect it
25 to -- the evidence to go in, all of it to go in by the close of the case.
1 However, do I understand, Madam President --
2 JUDGE MUMBA: Can you just sit while the other counsel is on his
4 MR. DI FAZIO: Do I understand that you would want us to produce,
5 speaking in particular of the documentary evidence, produce it all at
6 once, all at the one time --
7 JUDGE MUMBA: No.
8 MR. DI FAZIO: -- or introduce it as it arises naturally in the
9 course of a witness' evidence?
10 JUDGE MUMBA: No. Yes. You introduce it as you need it,
11 according to your evidence. If you want to buttress your evidence, then
12 you call the relevant witness and it comes on the scene.
13 MR. DI FAZIO: In that case, then I fully understand what the
14 Trial Chamber says, and I have no problem with that whatsoever.
15 As far as the issue of exhibit numbers is concerned, all I can say
16 is that it's a system -- what you've described is a system that I'm
17 completely familiar with. It causes me no consternation or problems, and
18 I have no problem with that, and if that's what the Trial Chamber wants,
19 then I commend it. I commend that course of action to the Chamber and
20 support --
21 JUDGE MUMBA: Yes, because it's much easier if the Registry does
22 it, because they're custodians of the exhibits. And if we can all have
23 only one number from them and use it throughout our discussions,
24 throughout the judgement, it will be much easier.
25 MR. DI FAZIO: Yes. I've got no problem with that at all. That's
1 all I needed to say.
2 JUDGE MUMBA: So on the exhibits and the documents, I would like
3 to hear the Defence if they have any comments, in view of what I have
4 said, I've indicated. Yes.
5 MS. BAEN: Yes, Your Honour. I, too, am familiar with that system
6 and I'm pleased that that's the system the Tribunal is going to use. My
7 question is: With respect to an attack on authenticity, how would the
8 Chamber like us to lodge or launch that objection?
9 JUDGE MUMBA: Each time -- let's say it's the Prosecution's
10 document. Of course it has to be, otherwise the Defence wouldn't be
11 objecting. If the Prosecution present a document to a witness, the
12 document will have the number which the Prosecution have given it
13 themselves as an ID number for identification purposes. So the witness
14 would describe it, discuss it, the Prosecutor will go through whatever
15 that document presents, and then they will now -- they will apply that
16 they would like this document admitted into evidence. They allow time to
17 the Defence, depending on who is concerned, or all the Defence counsels,
18 and they ask them whether they have an objection, a statement to make on
19 authenticity, or the contents, or whatever. Then it will be recorded. If
20 it's an objection that goes to its admissibility, then the Trial Chamber
21 will decide, either there and then or in due course of the trial.
22 So you wait until it's discussed, it's numbered and all that, then
23 I'll give you a chance to say. Because usually with a document, it may be
24 discussed by the Prosecution, but if you object and the Trial Chamber
25 agrees, then everything that was discussed will not be regarded as
1 evidence. Yes, that's the procedure. Because it's difficult to rule on a
2 document before you hear what it has to say. Yes, so that's the procedure
3 usually, except where it is obvious that there is no way it can be put
4 into evidence; then obviously you can rise and then the Trial Chamber will
5 be able to decide.
6 MS. BAEN: Okay. Thank you. I understand.
7 JUDGE MUMBA: Yes. To the Defence, again with the exhibits, I
8 hope that they will be ready at the time when their case will come on the
9 scene, so that again, like the Prosecution, they don't have to come up
10 with a document after closing the Defence case.
11 Sometimes I've come across counsel who hope during the main
12 trial that there will be rejoinder, and sometimes they withhold some
13 things. Now, that will not be allowed in this particular trial.
14 Everything has to be put on record. Every piece of evidence must be
15 produced. Because rebuttal, rejoinder, as I said, will be very, very,
16 very strenuously fought.
17 On the sitting hours - this is just a reiteration again - I did
18 say we may sit both afternoon and morning, depending on the availability
19 of the courtroom and the bed for the accused, who is a patient. But
20 looking at next week, there is some problem with the schedules issued for
21 next week. In one schedule we are shown as sitting in the afternoon, in
22 one schedule sitting in the morning or not at all. But what I can say is
23 that on Wednesday I will be able to inform the proceedings -- the actual
24 hours for sitting next week. The reason I can't do it now or tomorrow is
25 because I have to verify with the people responsible for courtroom space,
1 and also right now I don't know which case is being scheduled to be heard
2 in this courtroom. So it can only be done later, as for next week. But
3 for this week, it's 9.30 to 11.00, then 11.30 to 1300 hours. Pending the
4 availability of the bed, then we may consider sitting in the afternoon.
5 I see that all counsel have now got their gowns, so that is not a
7 The other point which is important is guiding witnesses when they
8 come on the stand. Not every witness has been in this Tribunal before,
9 and we have interpreters to consider. So witnesses should be guided to
10 speak slowly so that the interpreters can keep up with the
11 interpretation, and also it is important that the accused persons
12 understand what the witness is saying. So it is important for the
13 accused for the witnesses to be slow. Because unless the accused
14 understands what the evidence is all about, they cannot give correct
15 instruction to their lawyers. So always caution your witnesses. When
16 you're proofing them, please do give them guidance on speaking slowly and
17 clearly. We shall try our level best to make sure that the chair is
18 properly propped up and the microphones are working.
19 Each time each party is presenting a video footage as part of
20 their evidence, like I mentioned to Mr. Pantelic this morning, please do
21 prepare the relevant transcripts, properly translated by the Tribunal
22 section, so that we are all clear as to what is being said in the video
23 footage and we all understand what it's all about. Counsel cannot give a
24 running commentary because counsel is not a witness, so please do take
25 care of that problem and let's do things properly. Even if counsel is
1 aware, even if counsel was there when whatever was being done, counsel is
2 not a witness.
3 The last point, unless there are other matters my colleagues would
4 like to raise, is about motions. Now that the trial has started, as much
5 as possible, all motions will be oral. If a party wants to raise a
6 motion, please discuss with the legal officer so that the Trial Chamber
7 can give the relevant party time, suitable time, to raise the motion and
8 the other party can respond, and then the Trial Chamber can make a
10 When a witness is already on the witness stand, it's very
11 important that we get through with the witness before we discuss any other
12 matters so that the witness is not kept waiting. And sometimes the
13 witness may understand some things which the witness is not supposed to
14 understand and that may provide an answer to that witness in
15 examination-in-chief or cross-examination. So we should avoid, as much as
16 possible, to raise motions when we have a witness on the stand. Witnesses
17 are also to be respected, because they have left their jobs, their
18 families, to come here and assist. As much as possible, we should deal
19 with them, they finish, they go, then we can discuss our problems.
20 That does not mean if a motion is to come up before the witnesses
21 are completed, you can't bring it up. What I'm saying is for each
22 individual witness, let the witness go, unless the matter is dealing
23 directly with that particular witness. Otherwise, let's respect our
25 Those are the points I wanted to raise, unless -- any other
2 [Trial Chamber confers]
3 JUDGE SINGH: May I just say that in respect of the admission of
4 documents concerning authenticity or, say, any other objection, perhaps
5 counsel would find it discreet that they look -- that they discuss with
6 each other before the documents come up so that the trial can be fluid,
7 and that if there are any points of law or other points to be raised, then
8 each side would be fairly researched on that to be able to present the
9 argument to the Court.
10 JUDGE MUMBA: Yes. Any other matters? The Prosecution?
11 MR. DI FAZIO: Just on that last point raised by His Honour Judge
12 Singh. I hear what Your Honour says and I'm sure that that will be a
13 matter that we will -- all the parties will seek to ensure is handled as
14 smoothly as possible. Indeed, I think I can say safely that the issue of
15 admissibility of documents is not going to arise with the vast majority of
16 the documents. The question of the weight or the authenticity of the
17 document is another matter altogether, but as far as getting it into
18 evidence in front of the Court so that you can see it and we can all argue
19 about it, that's the way I see things happening. So unless my learned
20 friends have got something to say, I don't think admissibility, as
21 opposed to authenticity, is going to arise as an issue or trouble us much
22 in this particular case.
23 Just on the other issue of the numbering of the exhibits, there is
24 a -- as you know, the Prosecution has put in a list of exhibits pursuant
25 to Rule 65 ter, which is a fairly comprehensive -- which is a
1 comprehensive list of the exhibits the Prosecution will seek to tender
2 into evidence. There are a few more items that are not on this list that
3 was produced before the Pre-Trial Conference. For instance, the maps that
4 we had admitted, possibly the report of Dr. Donia I don't think is
5 mentioned in the exhibit list, and the demographics report and a few other
6 items like that. The list gives different types of exhibits different
7 types of numbers. For example, the maps listed M-1 through to M-6, I
8 suppose now they would be M-1 through to whatever the full number of maps
9 is. The photographs have got an "F" in front of the number, so they go
10 F-1 all the way through. The documents have a "C" in front of those.
11 Would it be helpful -- and so on, with videos and transcripts and so on.
12 Would it be helpful if the identification number was a "P"
13 followed by that particular number so that we have an initial reference
14 and everyone who has -- including the members of the Chamber and the
15 Defence who also have this list, provides an initial reference and we
16 could then simply ascribe a Prosecution number to it.
17 JUDGE MUMBA: I think that can be discussed with the Registry
19 MR. DI FAZIO: Thank you.
20 JUDGE MUMBA: See how we can accommodate your numbering. Because
21 I know you have already got them in your head as the numbers, so it would
22 be very helpful to maintain the same numbers. You will discuss them with
23 the Registry assistant and the Defence counsels so that whatever you come
24 up with is uniformity. What the Trial Chamber is concerned with is
25 admissibility, authenticity, what words to attach and that sort of thing.
1 The numbers I'll leave it to the Registry assistant and you discuss it,
2 and the Defence counsel as well, so that we have uniformity.
3 JUDGE MUMBA: Any other matters? I see you -- can you switch off
4 your microphone, please? I will now turn to the Defence. Any other
6 MR. ZECEVIC: Your Honours, there is one other matter. Our
7 client, as you can see, is disabled, and he is also disabled as being a
8 paraplegic. He has a problem in his right hand. So he cannot actually
9 make the notes by writing the notes on a piece of paper. I ask the
10 Registrar and the Legal Officer and they instructed me that I should apply
11 to the Court. What I had in mind is that we have an additional laptop
12 computer put over to the place where Milan Simic is sitting just in a word
13 so he can type down whatever -- I don't know, whatever note or --
14 JUDGE MUMBA: To his counsel.
15 MR. ZECEVIC: Yes. And if that would be possible, it would very
16 much help him and help us to really communicate with our client. Thank
17 you so much.
18 JUDGE MUMBA: I may ask the Registry assistant directly over
19 that, whether it is possible to have a laptop provided for Simic, the
20 paraplegic accused.
21 THE REGISTRAR: Your Honour, I can discuss it with the audiovisual
22 section and ITSS to see if we have a laptop available that can be hooked
24 JUDGE MUMBA: All right. So maybe we'll be able to have an answer
1 MR. ZECEVIC: Thank you.
2 JUDGE MUMBA: But on top of that, if counsel feels -- I take it
3 you speak the same language.
4 MR. ZECEVIC: Yes, I do. Yes, I do. As a matter of fact, I do,
5 but the problem is I wouldn't like to be impolite just going up and down
6 and he --
7 JUDGE MUMBA: Yes.
8 MR. ZECEVIC: And at the same time, it might happen that I'm in
9 the middle of the examination and he wants to make a note, so -- I mean --
10 JUDGE MUMBA: Yes. We'll try as much as possible to have the
11 laptop provided, but you should feel free to walk over, if need be.
12 MR. ZECEVIC: Thank you so much.
13 JUDGE MUMBA: If need be, you should feel free to walk over and
14 get instructions.
15 Any other matters by any other Defence counsel? Yes.
16 MR. PANTELIC: Your Honours, just one matter. I do agree
17 absolutely with the position of our colleagues from the OTP regarding
18 numbering approach, admissibility, you know, all these kind -- up to now
19 we try to cooperate as much as possible and we are really decided and
20 committed to do this cooperation in the future, of course.
21 Just one matter. Defence for Blagoje Simic filed from our point
22 of view really important motion regarding the determination in terms of
23 international law, determination of Bosnia. Pursuant to Rule 65 ter,
24 paragraph K, I think that we have enough room, that's my respectfully
25 suggestion to this Trial Chamber, we have enough room maybe to convene by
1 the end of Prosecutor case or in the middle or during the Defence case one
2 hearing where a number of experts, where certain additional briefs could
3 be filed, because I think that it's very, very important issue regarding
4 the matters of criminal aspect of this case as well as the public
5 international law. Just a small remark. Thank you.
6 JUDGE MUMBA: The Trial Chamber is seized with that motion and it
7 will be issuing its decision in due course. And I was wondering, when you
8 were saying that you want to call experts, there is nothing to stop you
9 calling experts during the presentation of your case.
10 MR. PANTELIC: Your Honour, at the discretion of your Trial
11 Chamber, of course, I'm not -- I would like not to have a suggestion on
12 that issue. I mean, maybe additional briefs or certain profound matters
13 would be quite enough. I mean, at the discretion of this Trial Chamber.
14 That's my position. Thank you.
15 JUDGE MUMBA: Any other matters? Yes.
16 MS. BAEN: Sorry, Your Honour. One more question. We had a
17 conversation with the legal officer, Stefani Godart, last week, about the
18 order of the witnesses which was filed by the Prosecution, and we were
19 told, I believe, that if the witness order changes, we'll have one week
20 notice? I just want to confirm if that was correct.
21 JUDGE MUMBA: Yes. Normally the Prosecution have already given a
22 list. Of course, they are calling Donia as the first one, which is not on
23 the list, because they were waiting for the decision of the Trial Chamber.
24 Now, what happens during the proceedings is that sometimes witnesses fall
25 sick or sometimes they change their mind and refuse to come. So you may
1 find that that order changes. What we normally do for practical purposes
2 is ask the Prosecution each week to give names of the witnesses. They may
3 be in the same order or they may not be called in the same order, but at
4 least you will know that these seven witnesses are coming this week, so
5 you will be able to prepare your documents for cross-examination each day
6 of that week. Should we finish the list, fine. If we don't finish,
7 again, they will reorganise their witnesses, provided that at least like
8 Friday they give us notice of next week's witnesses so that over the
9 weekend you're able to prepare for the cross-examination or any of those
10 witnesses on the list. But as nobody can predict what will happen, the
11 Defence must always be ready to change their order. What is important is
12 that you are ready for all the seven or eight witnesses for that week. So
13 if we should start with the last one on the list for that week, you will
14 be ready to cross-examine.
15 From my experience in the various trials, it's difficult to
16 maintain the order but it's easy to maintain the list, not in the order.
17 So it's important that you are prepared to start with any of the
18 witnesses, because sometimes they may be here but fall sick and one minute
19 not be able to come on Monday as scheduled and so you start with another
20 one. Because we cannot adjourn, when there are other witnesses who are
22 MS. BAEN: I misunderstood and I understand now, and I appreciate
23 it. Thank you.
24 JUDGE MUMBA: Any other points from any other Defence counsel?
25 The Prosecution?
1 MR. DI FAZIO: Yes, thank you, Your Honour. I'm sorry I didn't
2 raise this earlier when I stood up. There's just one matter that I want
3 to draw your attention to. It's a matter of substance on the motions.
4 This morning the Trial Chamber questioned me regarding notice that the
5 defendants had at the time that they engaged in the telephone interviews
6 in 1996.
7 JUDGE MUMBA: Okay. If you want to discuss any of the motions
8 further, I will allow that to go on in the morning when the accused
9 persons are here, because the motions are part of the trial process, so
10 the accused persons better be present so that they can hear what you're
11 saying, they can then give instructions. So in fact the Trial Chamber
12 isn't going to give any decisions on motions now.
13 MR. DI FAZIO: I appreciate that. I don't want to discuss it. I
14 just -- well, I just --
15 JUDGE MUMBA: No. I think making further submissions on any
16 motion, let's adjourn it to tomorrow so that the accused persons can hear,
17 and then they can verify with their counsel.
18 MR. DI FAZIO: As the Chamber pleases.
19 JUDGE MUMBA: Yes, It's better that way. Any other motion on the
20 trial or how the trial is going to be conducted are over. Is there
21 anything the Registry would like us to understand?
22 THE REGISTRAR: No, Your Honour.
23 JUDGE MUMBA: Thank you. So we've come to the end of our Status Conference.
24 We will adjourn now and the trial will continue tomorrow,0930 hours.
25 The Court will rise. Whereupon the Status Conference adjourned at 3.38 p.m.