Tribunal Criminal Tribunal for the Former Yugoslavia

Page 6016

1 Tuesday, 19 February 2002

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.30 p.m.

5 JUDGE MUMBA: Please call the case.

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

7 IT-95-9-T, the Prosecutor versus Blagoje Simic, Milan Simic, Miroslav

8 Tadic, and Simo Zaric.

9 JUDGE MUMBA: The proceedings are delayed this afternoon again

10 because the courtroom wasn't emptied on time from the morning session.

11 The Trial Chamber will go ahead and deliver its ruling on

12 protective measures for the next Prosecution witness. The Prosecution

13 witness listed publicly -- was listed publicly throughout the pre-trial

14 proceedings. For reasons stated by the Prosecution on behalf of the

15 witness, it has become necessary that the witness be heard in closed

16 session with a pseudonym.

17 On the submissions of the Defence regarding protective measures,

18 the Trial Chamber is not satisfied that any prejudice will be occasioned

19 to the accused or indeed that any of the rights of the accused will be

20 undermined. There is nothing that has been demonstrated by the Defence

21 that may lead to an unfair trial. While the public nature of a hearing in

22 a criminal trial is to be preferred, the changing circumstances of the

23 witnesses while the witness -- the witnesses make an effort to sustain a

24 livelihood for themselves and their families, if such efforts invite

25 insecurity in any form vis-a-vis their duty to give evidence to the

Page 6017

1 Tribunal, as has been demonstrated in this case, the Trial Chamber has to

2 give due consideration to such insecurity in the status of that witness.

3 The provisions of the Statute in Articles 21 and 22 have sufficiently been

4 explained in the jurisprudence of the Tribunal. The Trial Chamber is

5 satisfied that this is an exceptional case and the protective measures are

6 granted, as requested.

7 The witness shall have a pseudonym "N," and he shall give evidence

8 in closed session.

9 The Trial Chamber is reiterating the need for all parties to these

10 proceedings, including all witnesses and the accused, their families and

11 associates, to abide by the Trial Chamber orders on the protection of

12 witnesses. Nobody must incite any person to attack witnesses or to deal

13 with witnesses unfairly in any other matter that witnesses may be involved

14 in outside the Tribunal, especially in their countries of origin or

15 residence. Otherwise, contempt proceedings will be pursued under Rule 77.

16 The other matter raised by Mr. Zecevic on the summaries provided

17 during pre-trial and those provided just before the witness is called by

18 the Prosecution has been raised before. The Prosecution has been advised

19 how they should handle those problems. The summaries that are supposed to

20 be provided during pre-trial stage are supposed to be detailed. How else

21 can an accused person be said to have had an opportunity to prepare his

22 defence when, in fact, such right is undermined by the Prosecution's lack

23 of diligence in making sure that the accused is not mislaid by being

24 surprised with new material details. If at any stage the Trial Chamber

25 finds that there are new details which are material to the Defence which

Page 6018

1 have not been disclosed before, the Trial Chamber will take appropriate

2 action. And this habit, if repeated by the Prosecution, may lead to

3 undermining the Prosecution case altogether, because it is likely to lead

4 to an unfair trial to the accused. It is very important that in these

5 proceedings in the Tribunal, where investigators have to go to another

6 country to make their investigations, to prepare their defence and even

7 to prepare the Prosecution case, it is important that the Rules of

8 Procedure -- the rules and preparations for trial are complied with

9 strictly.

10 The proceedings will continue as stated in closed session, and the

11 witness can be brought in.

12 Yes, Mr. Zecevic.

13 MR. ZECEVIC: Your Honours, while we are waiting for the witness,

14 may I use the time to inform the Trial Chamber that my co-counsel,

15 Ms. Catharine Baen, will be here on Thursday.

16 JUDGE MUMBA: All right. So the matters which she's supposed to

17 raise will be adjourned until --

18 MR. ZECEVIC: Because I promised the Trial Chamber that I will

19 inform accordingly today --

20 JUDGE MUMBA: Yes.

21 MR. ZECEVIC: -- at the beginning of the proceedings. Thank you.

22 JUDGE MUMBA: Thank you.

23 MR. DI FAZIO: If Your Honours please, yesterday, counsel for the

24 Defence raised the issue of some outstanding exhibits that had to be

25 dealt with. I can do that now if you wish.

Page 6019

1 JUDGE MUMBA: Yes.

2 MR. DI FAZIO: Or I can do it later. I'm at the Trial

3 Chamber's --

4 JUDGE MUMBA: Yes. I think let's deal with them now in case they

5 have to be discussed by the witnesses.

6 MR. DI FAZIO: Thank you. Can I indicate that as far as the

7 documents which have been marked for identification, being D22A/2 through

8 to D22I/2, that collection of documents, the Prosecution has no objection

9 to their being granted full exhibit numbers.

10 JUDGE MUMBA: And before we proceed, can we just have confirmation

11 from the registry that they will retain the numbers -- the same numbers as

12 exhibits.

13 THE REGISTRAR: Yes, they will, Your Honour.

14 JUDGE MUMBA: Thank you.

15 Yes, Mr. Di Fazio.

16 MR. DI FAZIO: Yes. I understand that there are three further

17 translations that have been provided. Now, full admission into evidence

18 is being sought by Mr. Lukic in respect of D17/3, D25/3, and D26/3. The

19 Prosecution has no objection to those documents being fully admitted into

20 evidence.

21 JUDGE MUMBA: Yes. Can we have confirmation again that they will

22 retain the same numbers -- oh, before we do that, Mr. Lukic, is there

23 any -- we are discussing D17/3 --

24 MR. LUKIC: [Interpretation] I just wanted to submit copies of

25 those documents. I wanted to give them to the usher so he could -- so

Page 6020

1 these are the same documents that the Prosecutor is talking about.

2 JUDGE MUMBA: All right. I think we'll get them -- maybe the

3 usher can come and get the documents from Mr. Lukic.

4 Yes we can go ahead with the next witness.

5 MR. DI FAZIO: There is a further issue that concerns Mr. Lukic,

6 and that is the D22/3/ter, which is a document produced by one of the

7 protected witnesses. Mr. Lukic has obtained the original of that

8 particular document and wishes to substitute that original for the

9 document that currently takes the place of D22/3/ter. The Prosecution has

10 no objection to that original being substituted in the place of the

11 document that now forms the basis of D22/3/ter.

12 JUDGE MUMBA: Yes. Maybe --

13 MR. DI FAZIO: And its full admission into evidence.

14 JUDGE MUMBA: Maybe we can have that. Has it been handed in, the

15 actual original?

16 Mr. Lukic?

17 MR. LUKIC: [Interpretation] I submitted the original to a

18 representative of the Registry. We were just waiting then for the

19 Prosecution to receive the document.

20 JUDGE MUMBA: All right.

21 Can we have confirmation of the number as an exhibit now. D22/3

22 ter ID.

23 THE REGISTRAR: D22/3 -- or ter.

24 JUDGE MUMBA: And we have the English translation as well. Isn't

25 it?

Page 6021

1 MR. DI FAZIO: Yes, there is.

2 JUDGE MUMBA: Yes. So the English one is D22/3. Okay.

3 MR. DI FAZIO: And some days ago, I mentioned a number of

4 Prosecution translations that I wanted to produce into evidence.

5 JUDGE MUMBA: Yes.

6 MR. DI FAZIO: I'm now in a position to do so. Can I provide,

7 please, P37, P39, P41, and also P38. If I can repeat, P37, P38, P39, and

8 P41. We have copies here.

9 JUDGE MUMBA: I just want to recollect. These -- we didn't have

10 English translations?

11 MR. DI FAZIO: We didn't have English translations at the time.

12 JUDGE MUMBA: And was that the only reason why they were not --

13 MR. DI FAZIO: That's my understanding.

14 JUDGE MUMBA: Okay.

15 MR. DI FAZIO: Only one matter perhaps that I should mention, and

16 that's in respect of P41. That was ID'ed, I believe. On that occasion

17 when we were dealing with the document, I note from the transcript at page

18 4511 that Mr. Lukic said that he would not object to the full admission

19 into evidence of that document. It's in fact the --

20 JUDGE MUMBA: [Microphone not activated]

21 MR. DI FAZIO: Yes. It relates to the core proceedings relating

22 to one of the protective witnesses. So I'm seeking its full admission

23 into evidence.

24 JUDGE MUMBA: I'm sure the Defence has is no objection. That is

25 P37, 38, 39, and 41.

Page 6022

1 MR. ZECEVIC: Well, Your Honours, with all due respect, I

2 was of the impression that we are dealing on the equivalent basis of it

3 here. Because we gave to the Prosecutor -- I gave myself seven days prior

4 to asking the admission just that we can, I mean, look at the documents

5 and --

6 JUDGE MUMBA: Consider your positions.

7 MR. ZECEVIC: Consider the probable objections.

8 JUDGE MUMBA: All right.

9 MR. ZECEVIC: I ask my learned colleague if he can give us that

10 and --

11 MR. DI FAZIO: The case manager informs me that those documents

12 were handed on the first day that we resumed court.

13 MR. ZECEVIC: I'm sorry?

14 MR. DI FAZIO: My case manager informs me that those translations

15 were provided, and this accords with my memory too, because I recall

16 standing up on the first day that court resumed, that they were handed to

17 the Defence on that day.

18 JUDGE MUMBA: Yes. I see the point Mr. Zecevic is raising. It's

19 just that they needed time to be able to regroup their thoughts and

20 instructions. So what we can do is we'll give the Defence time, that we

21 can come back to this even after the witness.

22 MR. ZECEVIC: Yes. Your Honours, what I wanted to propose is if

23 we have received - I don't really recall - but if we have received, I have

24 them in -- in -- with other stuff in Defence counsel room and we can

25 inform the Trial Chamber accordingly after the break. Thank you.

Page 6023

1 JUDGE MUMBA: All right.

2 Any other documents?

3 MR. DI FAZIO: No.

4 JUDGE MUMBA: Okay. So the Trial Chamber will hear from the

5 Defence on P37, P38, P39, and P41 at a later stage when they are ready

6 with stating their opposition.

7 MR. DI FAZIO: If I may be of some assistance to the Defence so

8 that we can hasten this process, they'll find that the documents are dealt

9 with at the following pages in the transcript, P37, if they get their

10 pins --

11 JUDGE MUMBA: Yes.

12 MR. DI FAZIO: -- page 4304. P38, page 4312 to 4313.

13 P39, page 4314 to 4315.

14 And P41, page 4515 and also page 4511. So they should find --

15 JUDGE MUMBA: Yes. Thank you.

16 MR. DI FAZIO: -- that in the transcript.

17 JUDGE MUMBA: I'm sure that will be very helpful.

18 MR. DI FAZIO: Thank you.

19 JUDGE MUMBA: So we can now proceed. Please bring the witness.

20 [Closed session]

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22 --- Whereupon the hearing adjourned

23 at 5.59, to be reconvened on Wednesday,

24 the 20th day of February, 2002, at 2.15 p.m.

25