Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11987

1 Tuesday, 3 September 2002

2 [Status Conference]

3 [Open Session]

4 JUDGE MUMBA: We shall now move into a Status Conference to

5 discuss the next stages of our proceedings.

6 MR. DI FAZIO: Should it be open session, if Your Honours please?

7 JUDGE MUMBA: Yes, we should go into open session, actually.

8 [Open session]

9 JUDGE MUMBA: We are now in open session.

10 The Trial Chamber had worked out a tentative schedule, depending

11 on whether or not the Defence are desirous of filing a motion under Rule

12 98 bis. Maybe we can hear from them.

13 MR. LAZAREVIC: Yes, Your Honour. We are going to file a motion

14 for acquittal on behalf of Mr. Zaric's Defence.

15 JUDGE MUMBA: If that is the case, the Trial Chamber is -- yes,

16 Mr. Lukic.

17 MR. LUKIC: [Interpretation] I just wish to confirm that all of the

18 Defence counsel are prepared to file a motion pursuant to Rule 98.

19 JUDGE MUMBA: I see. Okay. Very well. The Trial Chamber worked

20 out a schedule that if the motion is to be filed, it should be filed by

21 13th of September, which is Friday next week, because I recall that the

22 Legal Officer did have a meeting, just before we broke up, with the

23 Defence counsel, with all the parties, discussing the next procedures and

24 advising the Defence that they should make use of the recess to prepare

25 their case. Because after the Prosecution case was closed, the timetable

Page 11988

1 for the next stages would be quite tight.

2 So the Trial Chamber expects that whatever motion is to be filed

3 should be filed by 13 September, and then the Prosecution response to the

4 98 bis motion should be filed by 20th September. And thereafter the Trial

5 Chamber will give its decision by 27 September. Thereafter, the Rule 65

6 filings by the Defence should be filed by 4th October, and the Trial

7 Chamber expects to hold a Pre-Defence Conference on Wednesday, the 16th of

8 October. With that schedule, the Trial Chamber expects that the Defence

9 will open its case on the 21st of October, and the sequence is that the

10 Defence case will begin with the first accused, followed by the second

11 accused, whether the accused will give evidence or only witnesses, and

12 then followed by the third accused.

13 So that is the schedule, and the Trial Chamber expects that if we

14 follow that schedule, we should be able to start the Defence case on the

15 21st of October this year.

16 As to the Court schedules when we begin the Defence case, it will

17 depend how the people responsible for the Court schedules will schedule

18 us, whether it will be morning sessions or afternoon sessions, because we

19 have to give room also to other cases which are going on.

20 [Trial Chamber confers]

21 MR. PANTELIC: Your Honour, I see my friend -- would you -- do you

22 have some ...

23 MR. DI FAZIO: If Your Honours please, I've heard what you've

24 said, and I gather that plainly the Trial Chamber has definite views about

25 this schedule and that plainly you are concerned to keep the case moving

Page 11989

1 and gets it moving and underway as swiftly as possible. I understand

2 that. Let me preface my remarks by that. I'm extremely mindful of that.

3 However, I do seek further time to provide a response to any 98 bis

4 motion.

5 The situation with no-case-to-answer submissions or 98 bis

6 submissions is that the Defence are always in a better position to make

7 the submission, deal with it, present it, and the Prosecution, of course,

8 is always in a position of having to respond to it. They have had, of

9 course, a long time in which to consider their 98 bis application, watch

10 it developing, and be in a position, I would think, to be able to make it

11 fairly swiftly.

12 The Prosecution, of course, until it sees the motion, is -- simply

13 doesn't know if it is going to be a matter that is going to be confined to

14 a very small point which we can easily answer, swiftly answer and deal

15 with quickly, or whether it's going to be a wide-ranging and difficult

16 motion that's going to present a lot of difficulties for the Prosecution.

17 During that period of time, of course, the situation as far as the

18 Prosecution is concerned is that I will be minus -- Ms. Reidy will be

19 gone, of course, by that stage, and fortunately Mr. Re will be able to

20 assist. Mr. Weiner is not available, because of personal commitments, on

21 the 6th, 7th, and 8th of this month, and also the 16th and 17th. And so

22 Prosecution resources are going to be somewhat strained. If we're met

23 with a wide-ranging, difficult 98 bis motion, I fear that we may not have

24 enough time to answer it well and extensively. And so therefore, I would

25 seek a little more time. That is about a week that the Trial Chamber has

Page 11990

1 given us.

2 Would Your Honours just bear with me?

3 [Prosecution counsel confer]

4 MR. DI FAZIO: Just let me put some more matters to you. First of

5 all, Mr. Weiner's personal commitments are not simply -- let me put it

6 this way: They're religious matters that he needs to attend to and they

7 are of some significance, in the Prosecution's submission. I don't want

8 the impression to be conveyed to the Trial Chamber that it's anything less

9 than that.

10 Again, it was pointed out to me by Mr. Re that, of course, and I

11 forgot to mention this, we have three defendants here, not just the one.

12 And finally, and although I don't want to stick to the precise

13 wording of the Rules, and I'm, as I said, I'm anxious to try and keep the

14 case moving as fast as I know Your Honours wish to, under Rule 126 bis, I

15 think we've got 14 days to put in a reply to a motion.

16 JUDGE MUMBA: Yes, Mr. Di Fazio, but the Trial Chamber can always

17 shorten.

18 MR. DI FAZIO: Yes. But that is the intent of the Rules,

19 obviously, to provide up to 14 days. Now, it could not be said, if Your

20 Honours please, that a case that's come -- only a few days short of a year

21 is not a small case. If the 98 bis motion is, as I said, and as I

22 suspect, going to be a wide-ranging motion, that's an awful lot of

23 evidence to cover and analyse in the space of seven days. So as far as

24 the Prosecution is concerned, I do urge you to grant us some further time.

25 JUDGE MUMBA: Very well, Mr. Di Fazio. Why don't you wait and see

Page 11991

1 when you receive the motion?

2 MR. DI FAZIO: Thank you.

3 JUDGE MUMBA: And then make the relevant application.

4 MR. DI FAZIO: I grasp at that. Can I take it that the

5 Prosecution is at liberty to seek an extension of time by way of written

6 motion if we find ourselves confronted with an application that is really

7 going to tax us and --

8 JUDGE MUMBA: Yes. That right is always available to both

9 parties, the Defence, the Prosecution, if for any reason they seek an

10 extension of time, they are welcome to apply to the Trial Chamber.

11 MR. DI FAZIO: I'm grateful.

12 JUDGE MUMBA: And of course, giving reasons why they cannot comply

13 to whatever they have to comply with within the limited time.

14 MR. DI FAZIO: I'm grateful to the Chamber. If we are at liberty

15 to do that, then if we find that we're really in trouble and not going to

16 have enough time, then we'll set out our application. If, happily, if,

17 happily, it turns out that the matter is only a minor point that we can

18 easily deal with, then you'll have our response within that period of

19 time.

20 JUDGE MUMBA: Very well. I think we have come to the end of our

21 proceedings.

22 Yes, Mr. Lukic.

23 MR. LUKIC: [Interpretation] Your Honours, this has nothing to do

24 with the schedule. However, something stems from the schedule that I need

25 to bring up, although it could also be left for the Pre-Defence case

Page 11992

1 hearing. Based on the schedule that you just gave us, it is obvious that

2 we'll have to put in some hard work. What I'm interested in is as

3 follows: As I listened to your explanation denying Mr. Pantelic's request

4 to cross-examine the expert witness, I would like to know what is the

5 position of the Trial Chamber with respect to the witnesses that the

6 Defence is considering calling here, and if these people were or used to

7 be on the list of Prosecution witnesses but were not on the pre-trial list

8 of witnesses.

9 I remember when the Defence of Mr. Zaric wanted to hear the

10 position of the Trial Chamber regarding their request to contact

11 Mr. Nalic. The Defence of Mr. Tadic would like to contact some

12 individuals who, in 1995, 1996, and 1997, gave statements to the

13 Prosecution that were later disclosed to us, and later these people were

14 not called in here to testify for the Prosecution, in view of the very

15 strict rules concerning the contact with potential witnesses, I would like

16 to know what would be the position of the Trial Chamber concerning the

17 possibility of us contacting such individuals. It is important for us to

18 find out what your position would be in order to prepare our list of

19 witnesses.

20 [Trial Chamber confers]

21 JUDGE MUMBA: I just want clarification from Mr. Lukic. When you

22 submitted that the Trial Chamber had denied Mr. Pantelic's request to

23 cross-examine the expert witness, do you mean Dr. Gow, or which expert

24 witness? Because the transcript, if you look at page 43, line 2 -- no-

25 line 4.

Page 11993

1 MR. LUKIC: [Interpretation] I simply quoted your words when you

2 gave an explanation to your previous decision, when you said that it

3 doesn't exclude the possibility for the Defence to call in witnesses that

4 the Prosecution had not called. So this was in reference to that

5 decision. I wanted to know whether that would apply only to expert

6 witnesses or to fact witnesses as well, the fact witnesses that were not

7 called by the opposing side. So these were not witnesses that were given

8 to us at the pre-trial hearing; these were witnesses that were -- that had

9 the status of the so-called potential witnesses.

10 JUDGE MUMBA: Yes. Now that the Prosecution case is closed,

11 unless the Prosecution have a basis, which I cannot see, or the persons

12 who had been previously listed as potential witnesses for the Prosecution

13 can be approached by the Defence, if they so wish to call them in their

14 case, not only expert witnesses, but all the ordinary witnesses as well.

15 You had mentioned, I think, Omer Nalic, Mr. Lukic? Because that

16 was discussed previously, and --

17 MR. LUKIC: [Interpretation] Yes. I mentioned him as an example.

18 I'm not interested in him; I simply wanted to give you an example and to

19 say that this had previously been discussed.

20 JUDGE MUMBA: Very well.

21 MR. DI FAZIO: If Your Honours please, just on this issue, the

22 Prosecution, of course, understands that there's no property in witnesses

23 and it's Defence are free to approach witnesses, but as in the case of

24 Omer Nalic, I respectfully suggest that they should do so through us.

25 These people were Prosecution witnesses and may be alarmed - I don't know.

Page 11994

1 They may not be - by the approach of Defence counsel in this case. I --

2 JUDGE MUMBA: Mr. Lukic has said that he just gave an example.

3 He's not interested --

4 MR. DI FAZIO: Yes. I appreciate that. And I'm using that myself

5 as an example.

6 JUDGE MUMBA: As an example, yes.

7 MR. DI FAZIO: So I, A, don't want to stand in the way and will

8 not stand in the way --

9 JUDGE MUMBA: Of the Defence.

10 MR. DI FAZIO: -- of the Defence approaching witnesses, and indeed

11 we will facilitate that process wherever possible and assist, but again

12 there's no property in witnesses. But I suggest, in fact I would prefer,

13 if the Defence were to go through the Prosecution, when attempting to

14 approach witnesses, so that the witnesses or intended witnesses understand

15 what's happening and are -- any fears that they may have are allayed.

16 JUDGE MUMBA: Oh, I see. Yes.

17 MR. DI FAZIO: I think it's --

18 JUDGE MUMBA: To facilitate their approach to witnesses. Yes.

19 MR. DI FAZIO: Yes. It's a more diplomatic and I think more

20 careful way of making the approach to the witnesses in that way. And of

21 course, the Prosecution will assist. It won't hinder; it will assist the

22 Defence in making contact.

23 JUDGE MUMBA: Very well. Very well. I'm sure the Defence

24 understand that.

25 Yes, Mr. Lukic.

Page 11995

1 MR. LUKIC: [Interpretation] Your Honours, I understood that, but

2 the Prosecution should have some understanding as well. It is obvious

3 that the Defence doesn't want to harass witnesses, and we, obviously, will

4 not approach any witnesses if that should cause a potential problem.

5 However, I don't see why should I have the obligation to give information

6 regarding our intent to contact witnesses to the Prosecution prior to the

7 beginning of the Defence case. Generally speaking, I can say that all of

8 the witnesses I intend to call are not victims. However, I am prepared to

9 discuss this with the Prosecution. But I think it's clear that we have

10 absolutely no interest in harassing witnesses who were also victims.

11 MR. LAZAREVIC: Just one more thing I would like to add to what my

12 colleague Mr. Lukic said. It has -- it is not related particularly to

13 Mr. Nalic, but we feel that the Prosecution is somehow trying to limit us,

14 to approach this witness through the Prosecution, and we don't see any

15 basis for this in the Rules or any other place. Because, of course, we

16 can ask any witness: Would you like to testify? Or: Are you ready to

17 testify? If he says no, he won't testify, and we don't have any other --

18 JUDGE MUMBA: Mr. Lazarevic, no. I don't think we should waste

19 any more time on this, because it really depends on human contact and when

20 the Prosecution was talking of facilitating, it meant just that. There is

21 no obligation on the Defence counsel, of course, to get something like

22 permission from the Prosecution. If you are able to approach them, yes,

23 you go ahead. The Prosecution was merely saying it may -- it is in a

24 position to facilitate; that's all. There is no obligation at all.

25 Yes, Mr. Pantelic.

Page 11996

1 MR. PANTELIC: And also, Your Honour, allow me, please, to raise

2 the issue which is of our importance.

3 Given the fact that it's sometimes very complicated to arrange the

4 travel from Bosnia, from former Yugoslavia region, here to The Hague, we

5 are very mindful about the efforts which are practically on day by day

6 basis made by the Victims and Witnesses Unit, as well as the Registry. So

7 we think that maybe it's a prior -- it's an appropriate time to maybe hear

8 the instruction of this Trial Chamber with regard to the following

9 matters:

10 For example, we see our case as one case of two parts, in very

11 general terms. In light of the fact that the indictment covers the period

12 from the October 1991 until the end of 1992 and 1993 respectfully for the

13 other two co-accused, there are some matters of general importance of the

14 region of the municipality of Posavina region, of Bosnia, like the, I

15 would say, contextual issue, and in light of the fact that each three

16 Defence teams have certain interest to better present, in general, this

17 case to this Trial Chamber. I would give you an example.

18 On behalf of my client, Mr. Blagoje Simic, of course certain

19 importance of presentation of our case would be to call a number of

20 witnesses on the municipality level, functioners [sic], politicians, local

21 politicians, and the other persons from that level. Of course, there are

22 another part -- there are a number of witnesses with regard to the

23 certain, let's say, clarification of certain events, which is the other

24 part. As well, the same situation is with, I believe, my colleague

25 Mr. Lukic on behalf of Mr. Tadic and my colleague Mr. Pisarevic on behalf

Page 11997

1 of Zaric. So what we would like to hear your instruction, because we have

2 discussed that matter among ourselves.

3 The example is the following: We would like to proceed with a

4 number of witnesses on behalf of Mr. Blagoje Simic, but at the same time,

5 I think it will be very important and useful for this Trial Chamber, among

6 the, I would say, first part of these witnesses, to hear some other from

7 the municipality level and also from military level, which may assist this

8 Trial Chamber and to shed light on certain event.

9 So if the Defence teams will be allowed to call sort of,

10 say - it's not more than one or two witnesses - during the Defence case of

11 Mr. Blagoje Simic, who is the first to begin, would it be possible, with

12 the permission of this Trial Chamber, to hear, for example, one military

13 officer or one, let's say - I don't know - a municipality functioner [sic]

14 during that case, conducted in chief by the other colleagues? Because

15 officially, these witnesses are their witnesses. But in order to better

16 present the pre-wartime, we simply would like to see and to hear your

17 instructions would it be appropriate or not. Because otherwise, for

18 example, for certain military aspects, certain important persons will

19 appear at the end, after the Blagoje Simic case and after Miroslav Tadic

20 case. And therefore, maybe it might be better for this Trial Chamber to

21 have, in one kind of smooth story, I would say, of the events in

22 municipality of Samac. So it's just inquiry and question for the

23 instructions, because we have to prepare -- accordingly, we have to

24 prepare travel arrangements, to contact the Victims and Witnesses Unit,

25 et cetera.

Page 11998

1 JUDGE MUMBA: Yes, but the preparation and conduct of the Defence

2 is entirely up to the Defence counsel. The Trial Chamber is aware that

3 there are certain common aspects of the case to all three accused, and for

4 those aspects of the Defence case which are common to all three accused,

5 it does not matter which Defence counsel examines the witness and whether

6 each Defence counsel takes on a part of the evidence of the witness and

7 deals with only that, then the next Defence counsel deals with a

8 particular aspect of the evidence. That is not a problem of the Trial

9 Chamber. It's up to the Defence to prepare.

10 When you have filed your 65 filings, for instance, the Trial

11 Chamber will be able to see what type of evidence your witnesses will be

12 able -- will be expected to give, and the Trial Chamber may be in a

13 position to say whether or not this witness can be dispensed with,

14 limiting the number, limiting the time, and things like that. But as to

15 who examines which witness is entirely up to the Defence to deal with

16 that. Common approach or separate approach, that's up to you.

17 MR. PANTELIC: Yes. If you allow me, Your Honour, just to give an

18 example. For example, we shall proceed -- I don't know who among my

19 colleagues will give the opening statement at the beginning of Defence

20 case. It's up to them. But generally, we shall proceed with three

21 experts, expert witnesses. Of course, if the Prosecution will not have

22 any objections, then we shall not call them. I mean on the report. Then

23 we shall proceed with, let's say, several witnesses about the municipality

24 of Samac, but in the period of 1991. I believe that not more than one or

25 two witnesses from the list, from my colleagues' list, will come at the

Page 11999

1 beginning, and then I have to rearrange the schedule for witnesses,

2 et cetera. So it will not be more than two or three, maximum, witnesses

3 at the beginning of the presentation of Mr. Blagoje Simic case.

4 I will give you an example. For example, Mr. --

5 JUDGE MUMBA: Mr. Pantelic --

6 MR. PANTELIC: -- Blagoje Simic is not interested - sorry, Your

7 Honour - is not interested for certain high-level-ranking officers. It's

8 not interested. But it might be of certain importance for this Trial

9 Chamber to have a broad picture.

10 JUDGE MUMBA: Yes. Mr. Pantelic, when I said we would begin with

11 the first accused, the second accused, the third accused, it was just

12 trying to give an order of the presentation of the case. But if the

13 Defence feel that they would rather have a different approach, it's

14 entirely up to them. What is important is that the Defence are able to

15 call the evidence which supports the Defence of their clients. That's

16 all. I think we can end there.

17 MR. PANTELIC: Yes. Thank you, Your Honour. And also, if you can

18 give us certain instructions with the time limits of the filing of expert

19 witness testimony in accordance with the Rule 94 bis. Because obviously

20 we are in preparation of the translation of these expert witnesses'

21 reports, et cetera. Hypothetically speaking, if the beginning of Defence

22 case will be on or around 21st of October, what is the instruction of this

23 Trial Chamber will be for us? How many days? What is the deadline for us

24 to file certain expert witness reports? Because there are in Rule 94

25 bis certain instruction that there is a time limit prescribed by the Trial

Page 12000

1 Chamber. So maybe it's an appropriate moment now to see.

2 JUDGE MUMBA: Well, the Rule is clear, and the Trial Chamber at

3 this time does not wish to disturb the limits given by the Rule, because

4 there is no reason to do that. But it will be much better after the 65

5 filings, because then the Trial Chamber will be able to assess.

6 MR. PANTELIC: I understand. I understand. We shall take care

7 about that. Thank you, Your Honours, for your instructions.

8 JUDGE MUMBA: There being no other business, the trial will

9 adjourn.

10 --- Whereupon the hearing adjourned at 5.02 p.m.,

11 to be reconvened on Wednesday, the 16th day of

12 October, 2002.