1 Wednesday, 26 June 2002
2 [Open session]
3 --- Upon commencing at 9.32 a.m.
4 JUDGE MAY: This hearing is taking place in the absence of the
5 accused. It has become unavoidable that we have a hearing in his absence
6 because there are administrative matters of such a nature that they must
7 be dealt with in order that witnesses can be informed and the like and the
8 timetable arranged. We're grateful that Mr. Tapuskovic has been able to
9 be with us, representing the amici in this matter. I will see that a copy
10 of the transcript of this hearing is served on the accused in the
11 Detention Unit so that he knows what's gone on in his absence.
12 Mr. Nice, there are matters, I understand, you wish to raise about
13 the -- about witnesses in particular.
14 MR. NICE: Your Honour, yes. First of all, in order that the
15 record can inform the accused and simply so that all aspects of the case
16 are covered, I appear today assisted by my learned friends Mr. Ryneveld,
17 Ms. Uertz-Retzlaff, and also Ms. Harris in respect of the Bosnia component
18 of the case, as Mr. Groome is absent; and of course I'm assisted as ever
19 by Ms. Graham, the case manager, but that's the total representation here.
20 Your Honour, I hope that the Court has now received a witness list
21 dated the 25th of June.
22 JUDGE MAY: We've just received that.
23 MR. NICE: I'll perhaps take you through it because it's designed
24 to be helpful and I hope it is.
25 THE INTERPRETER: The interpreters don't have the list.
1 JUDGE MAY: The interpreters don't have the list. It may be
2 helpful if they had it.
3 MR. NICE: It's coming their way. And the Court should also have
4 had an earlier document in landscape format with some comments on the
5 front of it which really stand as a form of skeleton argument, I suppose.
6 JUDGE MAY: In relation to the 11 witnesses --
7 MR. NICE: Yes, that's right.
8 JUDGE MAY: Yes, we have had that.
9 MR. NICE: And obviously that can't be discussed further in the
10 absence of the accused.
11 JUDGE MAY: No.
12 MR. NICE: But we've set out our position.
13 JUDGE MAY: That's in relation to -- so it's clear for the record,
14 that's in relation to the 11 witnesses who you apply -- who you have
15 applied for to be heard without cross-examination, I shouldn't say to be
16 heard, to be introduced without cross-examination under Rule 92 bis. You
17 should, while we're dealing with that, have received an order in relation
18 to two of those.
19 MR. NICE: Your Honour, we have. The order and our document
20 crossed in the --
21 JUDGE MAY: Yes.
22 MR. NICE: -- in the filing.
23 JUDGE MAY: That was, if I recollect, K24 and K31. They, we have
24 said, should be present.
25 MR. NICE: Your Honour, indeed.
1 JUDGE MAY: For cross-examination. But the others, we have to
2 rule on. It's one of the matters we need to timetable.
3 MR. NICE: Your Honour, before we come to these lists and other
4 matters of detail, can I, for personal reasons, ask for not indulgence but
5 some assistance? If we do sit tomorrow because the accused is fit to sit,
6 I would ask that we deal with matters of evidence and not procedure
7 because I'm not intending to be here. Likewise next week, if the accused
8 is fit to sit, we have evidence to fill the entire week, but I'm intending
9 to be away on something that will be difficult to cancel for the Tuesday
10 and Wednesday, and I'd ask, therefore, that procedural matters not be
11 taken before the Thursday.
12 The second point I would make in general is this: Following the
13 first week of absence of the accused - that's last week, or indeed in the
14 middle of it - we inquired or had inquired as to whether the week of July
15 ending on the 2nd of August might be available. We had originally
16 understood that it might be available and people have made appropriate
17 arrangements to hold themselves in readiness, not to be taking holidays on
18 that week and so on. And up and until the end of last week's absence by
19 the accused through ill health, it was at least possible that we could
20 have got all or very nearly all of the Kosovo-only related evidence in by
21 the 2nd of August without having to apply for any further time.
22 His continuing ill health and the loss of two further days, I'm
23 afraid, makes that, difficult though it would have been, now impossible,
24 and we will inevitably be asking for some time, a rather limited amount of
25 time, in September.
1 We would also be assisted to know if that last week is going to be
2 available because people do have plans that they've made and to some
3 degree unmade, and it will obviously assist us to know where we stand in
4 relation to that week.
5 JUDGE MAY: Well, let us consider all that together while we can.
6 Is there anything else relevant to those decisions you want to raise with
8 MR. NICE: Sorry, decisions about timing?
9 JUDGE MAY: Yes.
10 MR. NICE: No. I think that's it. I mean, I'm not making the
11 application for extension yet because I will come to that when we look at
12 the amount of evidence there is outstanding.
13 JUDGE MAY: It may be convenient if you make the application for
14 extension now. The point is this: That what we need to do as soon as
15 possible is to timetable the matter through to the autumn.
16 MR. NICE: Certainly, yes.
17 JUDGE MAY: And it would be convenient to deal with it together.
18 MR. NICE: Let me then deal with it in general terms and then
19 we'll look at the list in particular.
20 When we've been optimistic about the possibility of finishing all
21 the Kosovo -- exclusively Kosovo-related evidence by the 26th of July or,
22 as we later thought, the 2nd of August, we had in mind first of all the
23 clear indications from the Chamber that it would prefer evidence that
24 dealt with more than one of the three indictments to be heard after
25 August, and we'd factored that in in respect of most but not all of our
1 insider witnesses, and we had planned to incorporate before the August
2 break three insider witnesses, one of whom undoubtedly covers events on
3 all three indictments and two of whom do to a degree but who are much more
4 specific to Kosovo. But we had decided to seek to call those three ahead
5 of August for several reasons, and in large part those reasons still hold
6 good. They include that very considerable arrangements have already been
7 made, difficult arrangements, to get those witnesses to be in a position
8 to give evidence before August at inconvenience and it may be risk to
9 themselves, so that for human reasons it's a good idea to have them heard
10 when they are originally expecting to be heard.
11 Second, and perhaps almost most importantly, their giving evidence
12 is likely to be very significant or certainly significant for other
13 potential insider witnesses for there is no doubt but that the giving of
14 evidence by insiders in this case, as they are called, will free up other
15 similarly placed potential witnesses to give evidence, and evidence from
16 such witnesses should not only improve significantly and rapidly the
17 quality of evidence before the Chamber but should ultimately bring
18 dividends in terms of time, or could ultimately bring dividends in terms
19 of the time the case will take because obviously the more access one has
20 to close insider witnesses, the less is there the need to rely on other
21 categories of evidence.
22 So we very much wanted to call these three witnesses for that
23 particular reason, and that remains our view.
24 Knowing that we must make an application for evidence now to be
25 heard in September in relation to Kosovo generally simply because we've
1 lost so much time through ill health that, in our respectful submission,
2 it simply couldn't conceivably be right to try to hold us to either the
3 26th or the 2nd of August, we've given thought to whether we should change
4 our view in relation to these three witnesses and put them back to
5 September, October, or something like that, and we would very much prefer
6 not to, for the reasons I've given, and would suggest that this will in no
7 way prejudice the accused and indeed will probably serve to assist him,
8 given that the summer break is intended, in large part, to be the period
9 of time when he prepares for the next part of the trial.
10 If we -- first of all, let's assume that the accused is fit enough
11 to be in court for the remaining days, which is by no means certain, I
12 suppose. But if he is and if we're able to get those three witnesses here
13 - and there's many a slip for this type of witness between intention and
14 reality, but if we are able to get them here - then three significant
15 witnesses will have been dealt with by the accused and the residue in
16 respect of which we will be making an application for Kosovo will be
17 crime-base witnesses almost exclusively, a category of witness which it
18 must be easier for him to prepare, as he's shown us by his ability to
19 prepare for these witnesses sometimes, as he himself has announced,
20 overnight. It would be much easier for him to prepare and thus less
21 demanding on him. So that to take these, or to plan to take these insider
22 witnesses ahead of the summer break will distribute the difficult work for
23 him and enable him perhaps to make a more even and better use of his time
24 and should not inconvenience him at all.
25 So that our intention remains to call those three witnesses,
1 although, when we look at the timetable, we'll have to be ready to allow
2 for the possibility that for different reasons, one or other of them may
3 not attend.
4 The next matter that may affect the timetable is Rule 70
5 witnesses. The Chamber has outstanding the issue of the one particular
6 Rule 70 witness for whom certain conditions were sought by the providing
7 government and in respect of whom -- I hope you've now been provided with
8 the text provided by that government.
9 JUDGE MAY: Yes, we have.
10 MR. NICE: It was late. It was my fault that it was late. I
11 didn't get permission and overlooked it.
12 That's obviously got to be discussed and decided about, and we've
13 built him in, but as I've been explaining throughout the last six months
14 or something, there are other Rule 70 witnesses in respect of whom we have
15 no agreement with the providing government, at least no agreement -- no,
16 we have no agreement. Things may be changing. They may change
17 independently of the decision about the particular witness that the
18 Chamber has to make, a decision in the course of which no doubt Rule 70
19 will be given a somewhat detailed examination. They may change
20 independently. They may change as a result of that.
21 JUDGE MAY: Let us pause there. I think we have not made our
22 Scheduling Order sufficiently clear on Rule 70. We will need to timetable
23 a discussion on Rule 70, probably sooner rather than later. The issue is
24 one which we must deal with. But so that you know what we are concerned
25 about, the issue which we wish you to address - it would be helpful if you
1 did it in writing - is whether Rule 70 applies at all. The issue is: Is
2 this a Rule 70 matter at all? And if so, it's for you to establish why.
3 And I don't think we made that sufficiently clear in our Scheduling Order,
4 and it's that to which we'd be grateful to have your submissions.
5 MR. NICE: I was first alerted the day before yesterday and
6 yesterday to the expectation of written submissions and we will attend to
7 that as soon as we can. And I'm certainly assisted by having confirmation
8 of that which I expected, namely, that the Chamber's looking at the issue
9 rather in a root and branch -- on a root and branch basis, and that may
10 indeed, if not assist resolution of the other witnesses as well as the
11 instant witness, certainly sharpen the debate that is going on.
12 JUDGE MAY: I think one could take it a bit further and say this:
13 Is this not really an issue of confidence, confidential matter which the
14 government does not wish to have disclosed? Which is a slightly different
15 point to Rule 70 which deals specifically with information. What it seems
16 that the government are concerned about is that other information, or
17 information outside what's given in the statement and in the original
18 information, shouldn't be disclosed. That seems to be a different point
19 to Rule 70.
20 MR. NICE: Those observations are extremely helpful and they will
21 find themselves winging their way on a transcript, in due course today, to
22 the government concerned.
23 JUDGE MAY: That is the issue which we have to address, the Trial
25 [Trial Chamber confers]
1 JUDGE MAY: To take the matter further, to try and assist, the
2 other Rule which has to be considered is 54 bis, if I recollect, if I've
3 got the number rightly.
4 MR. NICE: Yes. I think it only concerns documents, doesn't it?
5 JUDGE ROBINSON: Not just documents. It also deals with
7 MR. NICE: Yes. It's orders directly to states for the production
8 of documents. But indeed we have got that in mind and we will review the
9 position. Of course, with Rule 70, there's been a history of dealings
10 between the Tribunal and one or more governments, and that has given rise
11 to expectations perhaps on both sides, and I'm not at all disheartened to
12 hear that the matter may now be under review. But the Chamber's
13 observations are helpful and confirm my -- not my optimism but confirm my
14 expectation that the debate about Rule 70 may have an effect on whether I
15 am able to call one or other of the other so-called Rule 70 witnesses.
16 But as I've said, there may also be other independent events that will
17 lead to one or more of those witnesses becoming available.
18 Now, of those witnesses, one at least is exclusively Kosovo
19 connected and would take a significant amount of time to deal with - not
20 an extended amount but a significant amount of time - and is likely to be
21 a witness, I would forecast, from whom the Chamber might want to hear. So
22 that a couple of days, it might be thought, should be borne in mind as
23 days possibly to be allocated to one of those witnesses.
24 Now, with that in mind, can I invite the Chamber to look at the
25 latest list, prepared yesterday in light of what we knew yesterday about
1 the accused's state of health.
2 We had to send back nearly all the witnesses who have been waiting
3 here for a fortnight and more. And before I pass from that, the Chamber
4 may know from other sources and will, I hope, accept from me that the
5 business of waiting for the opportunity to give evidence for these
6 witnesses is a pretty difficult experience. They are kept in a hotel that
7 in many ways might as well be in the middle of nowhere because they don't,
8 by and large, speak English; and the Victims and Witnesses Unit is
9 terrific in what it does for them but the process is an isolated and
10 difficult one where they have nothing to do except revisit their memories.
11 And I mention that because if you'd be good enough to look at the list
12 numbers 1 to 4, numbers 1, 3, and 4 are three listed witnesses who have
13 been here a fortnight and who we have been able to retain, they having
14 come a very long distance to be here, and we hope that if the Court
15 reconvenes tomorrow with the accused present, their evidence may be given.
16 You'll also notice number 2, the same name as number 1. Number 2
17 was, until comparatively recently, a listed witness, but in one of the
18 processes of reducing witnesses in order to try and reduce the time the
19 case would take, his name was deleted. He is indeed the son of number 1,
20 and he's been here all these weeks as the person looking after number 1,
21 his father, who is in different or rather poor health.
22 Number 2, whose material has been served on the accused, is like
23 many of the people who come here, of course, anxious to give evidence.
24 His personal tragedy was to have his wife and all three of his children
25 killed in the course of the events that both he and his father can speak
2 Now, we've seen that these witnesses are cross-examined by the
3 accused, typically, and therefore, if time allows tomorrow, given that his
4 material has been served and given that he is here and assuming that
5 issues will be raised in relation to this the Prosecution would say
6 appalling event at Milos Gilic Street, we would ask tomorrow -- it can't
7 be done today because the accused isn't here to respond, but I forecast
8 the application -- we would ask for him to be taken as well if that could
9 be accommodated within the day. But otherwise, it will be 1, 3, and 4
10 tomorrow which we hope will consume the day, with or without the addition
11 of number 2.
12 JUDGE MAY: The information we have is that a hearing tomorrow is
13 unlikely, although we'll, of course, make further inquiries.
14 Pausing there and in case I forget, we have not yet had a medical
15 report for this week. We had one for the week before. We have not had
16 one for this week. We order that one be provided.
17 MR. NICE: Thank you, Your Honour. We are concerned, if we may
18 say so, about the specificity already provided in the report. Of course
19 it's a matter for the Chamber, but ...
20 JUDGE MAY: The first one was in a fairly scrappy form but it did
21 indicate there was an illness and what it was and how long he would be
22 off. Since then, we've had nothing.
23 [Trial Chamber and registrar confer]
24 JUDGE MAY: I'm told there was a perfunctory report filed
25 yesterday which we will have in front of us.
1 MR. NICE: The Chamber won't be surprised to know that the
2 Prosecution is not only concerned that there should be specificity given
3 to these medical reports but is prepared to be cautious if not skeptical
4 in due course if these things go on too regularly. Perhaps if I say no
5 more about it --
6 JUDGE MAY: That is matter for the Trial Chamber. We will get a
7 report. We have, of course, to rely upon the doctor and his decisions of
8 diagnosis about the accused.
9 MR. NICE: Well, Your Honour, 1 to 4 or 1, 3, and 4, if they can't
10 be taken tomorrow, create a difficult logistical problem, the resolution
11 to which is probably to send them somewhere between now and next week and
12 to seek to take them next Thursday, removing from the list whoever is
13 presently on next Thursday's list.
14 Then if we go down the list, we come at number 5 and 6 to Tuesday,
15 and these are fixed-date witnesses, 2nd and 3rd of July. And then we go
16 through some more witnesses from Djakovica, 7, 8, 9. 10 Suva Reka, and
17 then 11 Sandra Mitchell, who, I think, has timetable problems that mean
18 she must really be available on the 4th of July. Obviously, if the
19 accused is not going to be available tomorrow, all of this part of the
20 list may have to be somewhat amended.
21 13, Mr. Vollebaek, comes for the 8th and 9th of July; and then K25
22 follows on with another name, number 15, on the 10th of July. I don't
23 think there's any remaining difficulty about naming him but there have
24 been some Rule 70 or similar difficulties there so I won't, for the time
25 being, name him publicly.
1 Dr. Baccard returns briefly, we would forecast, on the 15th of
2 July with more witnesses named there, insiders of a lower category, and
3 then Djakovica witnesses to follow.
4 That brings us, in our calculations, over the page at 21, to the
5 middle of July roughly. It's probably not realistic to put it much more
6 precisely than that. There's then the report of Philip Coo and the
7 military expert General Sir Peter de la Billiere, who of course relate
8 only to Kosovo and in respect of one of whom there is challenges to part
9 of his conclusions which will have to be dealt with.
10 JUDGE MAY: Yes. That is in relation to Mr. Coo. Pausing there,
11 we will need to timetable that fairly soon for discussion. As part of his
12 report, there's reference to the OSCE Blue Book, and we've recently been
13 provided with copies of it. That would seem to be a helpful document
14 which could be exhibited.
15 MR. NICE: Thank you.
16 JUDGE MAY: Perhaps you can make arrangements to secure that when
17 we're back in open session, as it were.
18 The military expert I see, the second military expert for the
19 moment I will refer to him, I see a draft report will be available today.
20 MR. NICE: Today.
21 JUDGE MAY: He deals with different issues to Mr. Coo.
22 MR. NICE: He does indeed, yes, and it's explained why. One at
23 the high level, experience of command and so on, and observations about
24 the inevitable interrelation of different armed forces, different entirely
25 from Mr. Coo's. And this combination of experts is not without precedent,
1 I think, in this Tribunal. One could not in any way expect the military
2 expert, the general, to be dealing with the mass of material, the mass of
3 military material that is dealt with by Mr. Coo. It would be asking the
4 impossible and quite unreasonable. But in any event, they bring different
5 skills to bear on the same material, and we would invite the Chamber to
6 say in due course, obviously when the matter is ventilated, that they are
7 properly complementary and in no sense duplicative.
8 And it's very important in a case like this to have a high level
9 military expert to deal with the issues that inevitably arise when one's
10 dealing with a defendant of the former position of this accused. But in
11 dealing with those issues, you can't overlook the functional issues lower
12 down that Mr. Coo deals with and deals with in great detail. But perhaps
13 we can return to that topic sufficiently ahead of any travel arrangements
14 that Sir Peter de la Billiere will be making to make sure that we satisfy
15 you that that is an appropriate course to take. That's not unprecedented
16 at all and I think it's, in some ways, a standard procedure in some other
18 Your Honour, we then come to 24, 25, and 26, the three insiders to
19 whom I have referred, each allocated several days. And assuming that all
20 arrangements are in place, and the Chamber may know from some of the ex
21 parte filings what some of those intended arrangements are, assuming those
22 arrangements are in place, we will probably nevertheless have to at least
23 give some thought to having reserves of crime-base witnesses at whatever
24 inconvenience to those witnesses to allow for the possibility of the
25 evidence going short and time becoming available. But one way or another,
1 those witnesses will take us to the 26th of July.
2 Now, obviously, if there's another week between the 26th of July
3 and the 2nd of August, then some of what follows can be -- might be
4 accommodated within August, but please remember what I've already said
5 about one of the Rule 70 witnesses: We are anticipating the possibility
6 of a change whereby he will become available and have already made a
7 request, if so, that he be available within this period of time.
8 Obviously, other witnesses would have to be put back if the Chamber were
9 minded to take his evidence and assuming that he's free, which I don't
10 know, and all assuming that it's possible to call him. So those
11 uncertainties, I'm afraid, are bound to continue and we can only do our
12 best to tell you what they are.
13 So subject to all of those, we then come to K31 and 24 in respect
14 of whom the Chamber's already made its ruling.
15 Then number 29. And if you go straight over to the next page but
16 one, page 8, and starting at 43, you've then got 27, 28, 29, and then
17 starting at 43 and going on through to page 10, number 50, that's the
18 collection of witnesses dealt with in the other document in respect of
19 whom we say cross-examination may not be necessary and they could be fully
20 bis'd. And the Chamber may remember from the document that we provided,
21 our calculation is that those witnesses - so that would be 27, 28, 29, and
22 then 43, 44, 45, 46, 47, 48, 49 and 50 - would take some three days if
23 they were to be cross-examined. So that's our calculation.
24 So that would leave the intervening page, page 7, as witnesses who
25 simply have had to be put back by reason of the accused's ill health.
1 We've put them back in that position. They are crime-base witnesses and
2 so one can give a rough calculation of two or three per day to see that
3 three or so days will be required for them, would be required for them.
4 And if we then go over to page 8, starting with number 37, there's
5 a witness subject to argument who would probably take the best part of a
6 day, and then one of numbers R3 to 7, as I've already explained, will
7 probably take a couple of days.
8 So -- and then just moving on to page 10, everything that follows
9 from 51 and onwards is reference to a witness who covers not just
10 Kosovo --
11 JUDGE MAY: I thought we indicated a view about 51.
12 MR. NICE: You indicated a view, and if the court remembers, it
13 was a provisional view and I said that what we would like to do, please,
14 is to put him back because he can cover more than Kosovo, take a fuller
15 statement, detailing other matters, reconsider our position and apply or
16 complete the application in respect of him at a later stage of the trial.
17 So we had sought to leave that unresolved and I understood that that
18 approach had been acceptable to the Chamber.
19 So everything else that follows, if it's available, will fall to
20 be dealt with, in line with the Court's indication, after the summer
21 break. But there's one matter of detail I should deal with and that's at
22 page 13, number 60, and K38 in respect of whom the court has indicated
23 provisionally - K38 at page 11 - indicated not yet satisfied that he's a
24 witness whose evidence should be admitted. K38's evidence could be rather
25 more wide than just financial matters but is closely integrated with
1 financial matters, indeed central to financial matters in some way.
2 Where is he? At the moment, he's -- I'm sure I've got the right
3 number. 53 on page 11. But the Chamber indicated that we weren't allowed
4 to call him at the moment, subject to further argument. Now, it could be
5 that we could put back all of the argument about financial evidence, for
6 there seems to be some challenge to that, and about K38, until the autumn
7 or later because that evidence will inevitably be heard, if at all, in the
8 later parts of this trial.
9 We would prefer, if time allowed, to have the argument about the
10 financial evidence before the summer break and to further address you
11 about K38. We prefer to do that for two reasons --
12 JUDGE MAY: Just one moment.
13 [Trial Chamber confers]
14 JUDGE MAY: Yes, Mr. Nice.
15 MR. NICE: We prefer to deal with the matter, if time were
16 available, before the summer break for two reasons: One, because there's
17 further work to be done in respect of financial evidence, which is, of
18 course, extremely complex and difficult to deal with; and secondly, quite
19 frankly, because if for any reason Mr. Torkildsen was going to be
20 excluded, which we would argue would be quite wrong if he were to be
21 excluded from giving evidence, the sooner he knows, the better because he
22 can return to get on with his job as a financial investigator in Norway.
23 He's here for this case. So in an ideal world, if time is available, we
24 would rather argue certainly the financial report and any questions as to
25 its admissibility before the summer break, and we would then probably seek
1 to bring in further argument about K38 responsive to your latest ruling.
2 But there is only so much one can fit into any container, and I
3 suspect that if the options are between procedural matters that may be
4 adjourned if only to the end of August or beginning of September and
5 taking evidence, the Chamber's choice may be to take evidence wherever
6 possible because of its understandable desire to get as much evidence done
7 as early as possible, a desire which we entirely share and always have
9 So there, in a rather extended way, is the range of problems that
10 we are facing.
11 As I hope the Chamber will have seen from looking at this list,
12 the amount of evidence outstanding on our plan, subject to resolution of
13 the witnesses who might not be cross-examined and subject to the one Rule
14 70 so-called witness, is actually quite limited. It's a week or so as at
15 present appears.
16 JUDGE MAY: A week or so beyond the 26th of July.
17 MR. NICE: Yes.
18 JUDGE MAY: Taking that as the date so we can consider the matter,
19 you reckon that by the 26th of July there should be something like a week
20 or perhaps two, a week or two outstanding.
21 MR. NICE: Yes. It will get longer if any of the procedural
22 discussions take a lot of time or if witnesses take longer than expected.
23 It will be less if one of the K witnesses that we intend to call, one of
24 the three insider witnesses we intend to call before the summer recess
25 can't be called then, because once they can't be called before the summer
1 recess then there may be no particular reason to call them as part of the
2 discrete Kosovo evidence. It may simply be sensible to put them back to a
3 generally later date. But for the reasons I've given earlier, we would
4 very much prefer to try and stick with our plan of calling them before the
5 summer recess and believe that will bring dividends to the trial generally
6 if we are able to do so. But each of them -- and I should say this,
7 incidentally, that one of the particular reasons for asking the Court to
8 deal with these matters in so far as it can in the absence of the accused
9 today is that, for each of them, I think there's now a 20-day disclosure
10 order. We'd sought an extended order in respect of the accused, from 10
11 to 20 days for one of them, because we could see that it was a difficult
12 witness that might have required longer than the ten days he typically was
13 allowed. I think, actually, 20 days has been allowed for all three and
14 perhaps quite understandably, but that means we will have to serve their
15 material, thus revealing all the details about them, pretty well this
16 weekend at the latest if we are to call them at the times planned.
17 JUDGE MAY: Before we consider the timetable, we ought also to
18 consider what procedural matters are outstanding.
19 MR. NICE: Yes.
20 JUDGE MAY: Under two headings: One, outstanding for Kosovo; two,
21 outstanding for Bosnia and Croatia because we have to begin the
22 consideration of those parts --
23 MR. NICE: Certainly.
24 JUDGE MAY: -- fairly soon. And therefore, we should set aside
25 time in the timetable for those matters.
1 Okay. It may be of assistance if I have a note, if I read out the
2 note of the matters which I have which need to be resolved.
3 The Rule 70 issue, the exhibit to Dr. Baccard's statement on which
4 I think we now have your final -- your latest submission.
5 MR. NICE: They were served yesterday. I hope they are sufficient
6 in themselves to deal with the matter. We are obviously available to --
7 JUDGE MAY: It may be that could be dealt with without oral
9 MR. NICE: Yes.
10 JUDGE MAY: Maybe. We'll look at that. But certainly the Rule 70
11 issue has got to be resolved.
12 The issue of Dr. -- Mr. Coo's statement, arguments about
13 admissibility. That will have to be subject of oral argument.
14 The application for the nine 92 bis witnesses. At what stage do
15 you invite us to deal with that? Do we need to deal with that fairly
16 promptly or can we leave that until a later time?
17 MR. NICE: I think providing we keep an eye on travel problems,
18 that can be put back until after the witnesses who give the primary
19 evidence in relation to those particular sites have all been heard.
20 JUDGE MAY: Well, clearly it would be convenient and much easier,
21 more practical to deal with that after we've heard the live evidence.
22 MR. NICE: Yes, certainly.
23 JUDGE MAY: And the financial evidence which you have raised. I
24 think realistically we are not probably going to have time to deal with
25 that. It's going to be a major issue and going to require thought and
1 consideration with respect to argument.
2 MR. NICE: Certainly, if there's root and branch objection to it
3 coming from any source which can't be immediately set aside, then, yes, I
4 think it will have to be considered in some detail because, of course, the
5 problem about financial evidence is -- financial analysis is that the
6 alternative to dealing with it in the way it's dealt with here would be to
7 call an enormous number of witnesses, or to seek to call an enormous
8 number of witnesses. What is, I think, really a very important component
9 of this case.
10 So perhaps if I might respectfully propose it, if it's not to be
11 heard before the summer, it might prudently be listed for fairly early in
12 the next session, in the early autumn, so that consequential steps can be
13 taken one way or another, depending on the outcome.
14 While I'm speaking --
15 JUDGE MAY: That would be sensible. Yes. We think it would be
16 sensible. Let us decide now to deal with that in the early autumn.
17 Again, it should be dealt with in September, if possible.
18 MR. NICE: It seems to me I can save -- we can probably save time
19 by getting in a written submission about Rule 70, especially in light of
20 the helpful observations made this morning. It will take us a few days to
21 do that, but that will cut down the amount of time.
22 JUDGE MAY: Can we say seven days.
23 MR. NICE: Thank you very much.
24 JUDGE MAY: Written submissions, seven days.
25 MR. NICE: The other thing that the Chamber might want just to
1 have in the back of its mind is it has indicated a representative of the
2 government concerned might address it. A transcript detailing that has
3 gone to the government concerned. They are willing, but obviously we'll
4 have to fix any hearing with their availability in mind, although I think
5 they will hold themselves out to be available at very short notice.
6 JUDGE MAY: That really means, unless there's something I've
7 overlooked, that the only outstanding matter if we deal with Dr. Baccard's
8 exhibit on the -- on the papers, the outstanding argument really is
9 Mr. Coo and Rule 70 yet to be at some stage, a future time, to be dealt
10 with. So that's something which could be fitted in fairly simply, I would
11 have thought, as convenient, provided we don't overlook it.
12 MR. NICE: Yes. And certainly within the next fortnight, assuming
13 that -- assuming that the accused is here for that fortnight. And that
14 fortnight, of course, is a short fortnight because we don't sit next
15 Monday and I think the following week we don't sit on the Thursday and
17 JUDGE MAY: No. And we've lost the Court in afternoon too that
19 MR. NICE: Can I just mention a couple of tiny but potentially
20 significant other little procedural matters that I want resolved?
21 One -- they both really relate to cooperation by the accused, or
22 require cooperation by the accused and/or by his associates if he is
23 prepared to instruct them to cooperate. First, there's the Rule 68
24 exercise. The Chamber may know that in the associated case of Sainovic
25 and others, we had a meeting with the lawyers representing those accused,
1 explained the history of Rule 68 disclosure in this case, provided them
2 with the documents showing what we've done, and proposed a way forward.
3 We haven't yet heard back from them, but there was certainly no indication
4 that they aren't prepared to cooperate and make this absolutely critical
5 exercise we have to go through a practical one in this case.
6 At the same time, we raised with them the issue of translations
7 which, of course, we know has arisen in rather stark form in another it
8 may be said associated case of Krajisnik and Plavsic. In that other case,
9 procedures are in place for translations to be acceptable when provided
10 not by CLSS, which is so overburdened, but by other language speakers
11 working for the OTP here and indeed elsewhere. And the procedure with
12 which the Chamber will be familiar is that the translations which might
13 otherwise be thought to be draft translations are sent to Novi Sad
14 university where they are checked on behalf of the defendants concerned,
15 and I gather the strike rate of agreement is something like 94 per cent or
16 thereabouts, 95 per cent. The balance, where there's any doubt about the
17 translation of a particular document or part of a document is then sent to
18 CLSS and the matter is resolved in that way. And this is saving an
19 enormous amount of time and, I suppose, money, but certainly time, and
20 leading to documents being translated for use by the Court much more
21 swiftly. It requires the cooperation of the relevant accused, or at least
22 it may be thought to require. I'm not actually sure that it does because
23 all that's required is that the accused has documents in a language he
24 understands and so on.
25 So I don't believe there's any statutory or other regulatory
1 demand that translations coming from CLSS but it's obviously to be
2 expected those will be the definitive translations were there any issue.
3 And we would be much assisted by the cooperation of the accused, or if he
4 can't cooperate, by his associates insofar as they're able to act on his
5 behalf, in relation to both the translation issue for Bosnia and Croatia,
6 as they are upcoming, and in respect of the Rule 68 exercise generally.
7 We have been able to make telephone contact with them, and they
8 have simply told us that they don't have instructions -- I doubt they used
9 the word "instructions," but that's what it amounts to; they don't have
10 instructions from the accused and therefore they can't attend on meetings
11 with us. We would be grateful if the Court would consider what the
12 position of the associates is, given that they are now recognised by the
13 Tribunal, and consider to what extent the Chamber can perhaps assist in
14 resolving these two issues via the accused and/or the associates.
15 JUDGE MAY: See if we follow the problem. It's true that we're
16 familiar with the difficulties which have arisen in Krajisnik about
17 translation. Do I understand it that there are similar problems arising
18 in this case?
19 MR. NICE: Well, the problems are not similar in the sense that a
20 totally different time period for preparation from that identified by Your
21 Honour in the ruling in relation to Plavsic/Krajisnik as the -- one of the
22 factors that led to the order that was made, but of course similar in that
23 there is an overlap of documents and there are a large number of documents
24 yet to be translated. Of course we're going to be selective and, we hope,
25 very focused in the documents that are to be translated, but there's
1 absolutely no doubt but that CLSS is not capable of delivering all the
2 translations required by all the different parts of this institution. And
3 if there is an acceptable method of getting translations done more swiftly
4 than CLSS could arrange, and less expensive labour in financial terms,
5 then perhaps it ought to be adopted for cases like this.
6 JUDGE MAY: This is -- is this partly the documents which are part
7 of your case, your documents?
8 MR. NICE: Yes, they are our documents as well as documents that
9 are common. So that we may find ourselves in the position -- we will find
10 ourselves in the position of having documents that have been dealt with
11 by, if I can use the shorthand, the Novi Sad system and that will be
12 acceptable in that case and there's really no reason --
13 JUDGE MAY: Why should they not he acceptable in this case?
14 MR. NICE: Precisely. The only reason they might not be is, of
15 course, in that case, the accused have been agreeable to the process.
16 JUDGE MAY: As you rightly point out, the point is that it's
17 translated into a language which the accused understands. The method of
18 translation is not prescribed.
19 MR. NICE: As I say, that will be -- that observation on its own
20 is of great assistance to us.
21 JUDGE MAY: I speak for myself, but it would seem to be the
22 important thing is to get it translated.
23 MR. NICE: And then the Rule 68 problem you're familiar with, but
24 we do -- we don't require but the accused's interests will be better
25 served by him, and I'm quite happy to have a meeting with him on the topic
1 -- it's not a problem, he speaks English, or he can have an interpreter.
2 I'm quite happy to have a meeting with him on the topic, along with the
3 amici, to make sure that the parameters we're setting for our Rule 68
4 searches are the approach ones. I remember at an early stage in this
5 trial Your Honour made the observation that the accused had heard our
6 making the offer to him to contribute to this process, and indeed to make
7 any particular requests for Rule 68 material documents that he might think
8 we had, and I'm concerned that he shouldn't deny himself the opportunity
9 of helping himself in this way.
10 The amici took the view, quite understandably, that there was
11 little point in them having a meeting with us without the accused's
12 representative if there was a prospect of those representatives or the
13 accused himself taking part at some stage. Once it becomes clear that --
14 if it becomes clear that he's not prepared to cooperate at all, then the
15 second best option is, of course, for us to discuss the matter with the
16 amici alone if they are prepared to do that. I think they probably will
18 I've taken some time. I think --
19 JUDGE MAY: Yes. That was one problem.
20 MR. NICE: I think that's all I've got to raise. I'll just check
21 with everybody else.
22 JUDGE MAY: The other matter we should deal with is to -- we need
23 to consider, is fixing a Pre-Trial Conference, which I think it will be,
24 for Bosnia and Croatia. I think that rule will apply although technically
25 the trial has started, but we have not yet ruled at all on those
1 components, those indictments.
2 MR. NICE: No. Your Honour's quite right. Obviously we're
3 somewhat making up procedures as we go along, given the joint trial and
4 the circumstances in which it arose, but Your Honour's quite right. That
5 ought to happen and, I suppose, frankly, it ought to happen before the
6 summer having further inevitable consequences on the available time.
7 JUDGE MAY: Yes. I mean, we ought to fix that. We ought to fix a
8 date and a time for that.
9 MR. NICE: Can I ask that we fix it other than for a date when
10 we've got one of our fixed-date witnesses coming in? At least, as at
11 present advice. It should always be possible to change the date
12 comparatively easily.
13 JUDGE MAY: It would be sensible to leave at least one hour, and
14 possibly more. I don't know if you have any views about how long it might
15 take. We have started work -- we've been much assisted by the legal
16 officers and we've started work on the preparation. It will obviously
17 take a bit longer before we're ready to contemplate such an exercise.
18 MR. NICE: It's likely to be at least one session. It might go
19 longer, I would have thought. I'm trying to find my list now. I've lost
20 my list for available dates, but if we -- if the Court wanted it in the
21 middle of July, and I hope I won't be -- well, I hope if I get it wrong
22 and that those who deal with the listing of witnesses think I've chosen a
23 wholly incorrect date, I'll be allowed to come back and propose a
24 variation, but it may actually be something like the middle of July, at
25 the time of Dr. Baccard's brief return, something around that period of
1 time might be appropriate, because although the sum of the witnesses there
2 are marked as insiders, they're all comparatively short witnesses.
3 They're not the big witnesses. So although it's always inconvenient for
4 witnesses to come and not give evidence or to find that they're kept
5 longer than expected, that's probably the period of time when it might be
6 least likely to cause a major disruption. And if it's in the middle of
7 July, it will give all parties some time to plan their use of the month of
9 JUDGE MAY: If there's nothing more you want to raise, I'm just
10 going to ask the senior legal officer to approach us.
11 [Trial Chamber and legal officer confer]
12 JUDGE MAY: Yes. We will rise in a moment to deal -- to consider
13 these matters before we give a ruling as to the timetable, but we ought to
14 hear from Mr. Tapuskovic if there's anything he would like to raise.
15 Mr. Tapuskovic.
16 MR. TAPUSKOVIC: [Interpretation] Your Honours, today we have
17 broached a number of questions. I shall try and be as brief as possible.
18 It is quite certain that the three of us - Mr. Kay, myself, and
19 Mr. Wladimiroff - will be able very soon to present our positions and
20 stands with respect to all the issues discussed here today. It is very
21 difficult to speak here today without the presence of Mr. Slobodan
22 Milosevic, but these are all questions of importance because they are
23 questions of importance to him personally. And I'm quite certain that we
24 can't -- won't be having a discussion here which would be in any way to
25 his detriment, and of course, he will be receiving the transcript of the
1 meeting so he will be able to look at that.
2 The friends of the court have nothing against permanently
3 cooperating with the Prosecution on all these issues, all issues which are
4 important to your decision and to your ruling, and we shall do our best to
5 help you with all these questions.
6 Also, similarly, faced with this kind of situation, I can see that
7 we will have to shift the deadline by which the presentations were to have
8 been made with respect to Kosovo, and I am quite sure that the Trial
9 Chamber will bear in mind the fact that the trial, in addition to being
10 expeditious, expedient, must also be fair and just.
11 The problem, as I see it and that stands before us at this point
12 is the work that we have to do with the other two indictments, and we
13 ought to keep that in mind all the time. And I should like to say the
14 following in respect of a problem raised by Mr. Nice: For example, the
15 position that three witnesses are to be interviewed, examined, which are
16 linked to the things that took place in all these areas and have to do
17 with all three indictments. I don't think that any of these witnesses
18 should be examined before we have had a chance to study the materials for
19 the other two indictments, although I did listen, of course, with great
20 care to the arguments put forward by Mr. Nice, but I don't think that they
21 should be accepted.
22 I also hope that the Trial Chamber would adhere to the principle
23 that it had adhered to so far, that all the 92 bis witnesses should have
24 an opportunity of being crossed examined, or rather, the accused should
25 have the opportunity of cross-examining these witnesses.
1 As for the other matters, the other issues raised, some of them
2 were linked to Rule 70. There, of course, we shall be submitting an
3 application to the Trial Chamber, and I speak in my own name. I think
4 that Rule 70 enables every witness to be examined here and he needn't
5 answer questions that are confidential, on a confidential basis. But as
6 far as I'm able to understand, this does not refer to this particular
7 witness because, on the basis of that witness statement, there is nothing
8 there that I can consider is confidential. You will probably have this
9 crop up with some other witnesses that are due to appear. But you will be
10 ruling on that, but I do consider that Rule 70 ensures full protection for
11 all witnesses who appear in court here.
12 And as to all the other issues, we shall do our best, our utmost
13 to state our positions as quickly as possible, the issues raised here
15 I should just perhaps like to raise one point at this juncture,
16 and that is that on several occasions I was cautioned by the Prosecution
17 that I had taken it upon myself to present a historical background to some
18 of the facts related to Yugoslavia. However, studying the material linked
19 to Kosovo, I have come up with an exhibit. It is 2611. The number is
20 Exhibit 2611 and it has to do with Kosovo and Metohija and the historical
21 view. And this was published by the Federal Secretariat for Information
22 in 1978 in Yugoslavia. And -- but I have come to the opinion that it
23 would not be in order for me to present my views at this juncture if the
24 Prosecution indeed has these documents and can read through them. And
25 this will be something that we will come to in due course in the future.
1 And we are working on the expert report and expert findings to be provided
2 by our expert historical witness.
3 May I just say this now as far as translation is concerned: I
4 think that the expert reports by our experts should be translated, because
5 anybody reading the expert reports must have complete knowledge of the
6 language he's reading in. This is professional expert terminology, legal
7 terminology, military terminology, historical terminology, et cetera, and
8 I don't think that Mr. Slobodan Milosevic has sufficient knowledge of the
9 English language to be able to fully grasp the portent of the material in
10 a language other than his own. So I think that they must be made
11 translated and accessible to him, and of course, the decision and ruling
12 stands that all documents must be supplied to him in his mother tongue.
13 So that is what we had to tell you as the Trial Chamber, and if
14 you have any suggestions to make for our work, we shall be happy to hear
15 then. Thank you.
16 JUDGE MAY: Thank you, Mr. Tapuskovic.
17 Mr. Nice, one point is raised there. That is the question about
18 -- amongst others, is the question of the insider witness and the
19 appropriateness of calling one before the other parts of the case have
20 been opened.
21 MR. NICE: First of all, they're all three of them, of course,
22 principally focused on Kosovo and prepared on that basis, and that is the
23 reason they were listed as part of the Kosovo case. Inevitably, and this
24 isn't unique to these witnesses, witnesses called in Kosovo may have
25 material that relates to other parts of the case. For example, Lord
1 Ashdown was one and the Chamber permitted him to give the piece of
2 evidence he was able to give that related to another part of the case
3 while he was here, for convenience.
4 Once these witnesses have come here once, it may, of course, be
5 possible for them to come back again if in the event there's material that
6 it's decided they should cover that they haven't covered, or if it's
7 decided that material they have covered here that relates to other parts
8 of the indictment would need further cross-examination in light of
9 material coming available later. So there are various ways of resolving
10 the problem.
11 But we prepared the witness list and prepared their attendance on
12 the basis that because they related to Kosovo we should try and bring them
13 in as the Kosovo case, and it was only comparatively recently that the
14 Chamber gave indications, particularly related to financial matters but I
15 think also in relation to one other witness, that it might be more
16 appropriate in general for such witnesses to give their evidence at a
17 later stage. By that stage, very great steps -- not very great steps,
18 very substantial arrangements had already been made for these witnesses to
19 come in the Kosovo case. That includes their becoming adjusted to the
20 process, their taking the various complex steps that two of them have had
21 to take to deal with security issues themselves, and it would be, apart
22 from all the other reasons that I've explained that would justify their
23 being called now, it would be probably very difficult for them,
24 inconvenient and possibly even risky for them, to put their evidence back
25 as they'd be exposed for a longer period rather than a shorter to the
1 knowledge that they are likely to be giving evidence, that because in part
2 the information's already seeped or leaked out, than if they were giving
3 evidence earlier. So we would press the Chamber. For all the reasons
4 I've given, not least the reason of encouraging others, to say that any
5 problems that may arise from their giving evidence wider than simply
6 related to Kosovo can be dealt with in one of a number of ways that will
7 avoid any unfavourable consequences for the accused.
8 JUDGE MAY: Thank you.
9 MR. NICE: And as to the incident -- as to the translations of
10 expert reports, although we're not obliged to do so, we are as a matter of
11 practice and course getting them translated. We would press you not to
12 put any timetables on that because giving priority to those documents, if
13 we use CLSS, where there are documents that are to be provided as a matter
14 of statutory or regulatory duty is difficult. They do take some time to
15 get translated, but they are all being translated.
16 Your Honour, if there is any question of either putting back or
17 asking us to put back any of the insider -- three insider witnesses beyond
18 the summer, it might be necessary for us to look at them individually, one
19 by one, to see again, possibly even ex parte -- or to make representations
20 ex parte, to see the degree to which, or to examine the degree to which
21 they're really likely to go beyond Kosovo at all. But I can't really do
22 that in this session at the moment, for obvious reasons.
23 [Trial Chamber confers]
24 JUDGE MAY: We're going to adjourn now for half an hour to
25 consider these matters. We'll give our ruling when we return. Meanwhile,
1 we would be grateful for the senior legal officer and the registrar to
2 attend upon us.
3 We'll sit again at twenty past eleven.
4 --- Recess taken at 10.47 a.m.
5 --- On resuming at 11.28 a.m.
6 JUDGE MAY: The Trial Chamber will make the following orders in
7 regard to the timetable, but first I shall deal with the objection made by
8 Mr. Tapuskovic in relation to the three insider witnesses who the
9 Prosecution propose to call as part of the Kosovo case. Subject to any
10 further submissions which may be made in relation to calling them at this
11 stage, the Prosecution may call those witnesses.
12 Turning then to the timetable, the hearings will continue until
13 the 26th of July. There will then be a break of four weeks to be utilised
14 for preparation of the remaining sections of the case. The Trial Chamber
15 will sit again on the 26th of August until Friday, the 6th of September,
16 to hear the remainder of the Prosecution case on Kosovo, but there will be
17 leave for the Prosecution to apply, if necessary, for one further week.
18 The arrangements thereafter, such as any further adjournment for
19 preparation before the rest of the case and the start of the rest of the
20 case will be considered in due course when representations have been heard
21 from the accused.
22 The Pre-Trial Conference on the Bosnia and Croatia parts of the
23 trial will take place on Friday, the 12th of July, at 2.30. That will be
24 subject to the necessary arrangements being made.
25 In the light of the present and past illnesses of the accused
1 during this trial, the Trial Chamber, of its own motion under Rule 74 bis,
2 orders a full medical examination of the accused and instructs the
3 Registrar to make the necessary arrangements forthwith so that a report
4 can be made available to the Trial Chamber by the 17th of July.
5 Unless there are any further matters to be raised.
6 MR. NICE: No, subject to only this: Was the 12th of July
7 originally one of the days set aside for the Plenary?
8 JUDGE MAY: It was. If there are difficulties about it, then
9 representations can be made and we can find a different date.
10 MR. NICE: Your Honour, yes, because on the basis that those days
11 were not sitting days, I'd planned work on this case elsewhere for those
12 two days. It hasn't yet become clear that they're going to be used, but
13 they're quite important exercises that I have to engage in, and I had
14 planned them specifically because the Court wasn't sitting then. So it
15 might be that I would ask for that appointment to be shifted.
16 And the only other matter of detail, when we were looking at the
17 Novi Sad translation project, that's translation into English, not into
18 B/C/S. But I think as a slip of the tongue, Your Honour may have said
19 otherwise, but in fact, that's the exercise that's being performed at the
20 Novi Sad university.
21 JUDGE MAY: We'll consider the arrangements for the 12th of July.
22 If we can sit that afternoon, it may be a useful exercise anyway, even if
23 we can't deal with the Pre-Trial Conference.
24 MR. NICE: Thank you very much. May I approach the Chamber on
25 these timetable matters through the usual channels when I've checked what
1 my position is on that date?
2 JUDGE MAY: Yes. Very well. We will adjourn now until the Court
3 can sit next.
4 --- Whereupon the hearing adjourned sine die at
5 11.36 a.m.