1 Thursday, 25 July 2002
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.05 a.m.
5 JUDGE MAY: This is the Pre-Trial Conference relating to the two
6 other indictments in this case relating respectively to Croatia and
7 Bosnia. We propose to begin with the Prosecution and hear submissions.
8 We'll hear next from the accused and finally the amicus if any of them
9 want to add anything.
10 Mr. Nice, we have had the opportunity of reading the very full
11 pre-trial brief. If I may say, we have given it consideration. We have
12 various measures in mind. Of course you must have the opportunity of
13 addressing us upon them. We propose to make orders under Rule 73 bis
14 about the rest of the case.
15 The issues which, therefore, arise are concerned with a time
16 estimate and fixing a time. We have fixed April the 10th as the final
17 day. Obviously there have been developments since then and that date has
18 got to be reconsidered.
19 If it would be of assistance, it may be that I can indicate the
20 matters upon which we would be grateful if you would address us. The
21 first is a time estimate for the length of the Prosecution case, number of
22 witnesses. At the moment, of course, we have the details in the brief.
23 The next matter I would like you to consider is this: Whether
24 opening statements are necessary, this case now having run for four months
25 and more. If opening statements are felt to be necessary, and of course
1 it's a matter for you since you would make the first, should they be
2 restricted in time. So we'd be grateful if you would consider that.
3 The other general area is the order of evidence, and we have in
4 mind -- I think we've raised this before, the problems, first of all, of
5 preparation, very real problems of preparation of a case of these
6 dimensions for all those involved but particularly the accused, that it
7 would be easier if the evidence relating to Croatia was largely dealt with
8 first, which would allow the Christmas recess for preparation of Bosnia.
9 Now, I remember that you told us earlier that you had some
10 witnesses in common, but perhaps you could consider that and let us know
11 what the position is as far as possible.
12 In terms of specific orders as to evidence beyond the general
13 broad orders, which I've mentioned, we have two in mind. The first is to
14 reduce the number of municipalities in the Bosnia case. We note that you
15 intend to lead comprehensive evidence on 14 of the 47 and not to call
16 evidence on a further nine. We think that that should be reduced further.
17 We recognise the complexity and the seriousness of what happened, but this
18 is a criminal trial, and the evidence must be brought within a manageable
19 scope. We have in mind an order except with leave there should be
20 evidence only on the 14 and the three for which genocide is charged. So
21 that would be a reduction to 17 municipalities. There may be reasons for
22 additional evidence, but that's what broadly we have in mind. And we have
23 in mind a reduction of the insiders, or it could be possible to reduce the
24 number of insiders and they were all the number of live witnesses.
25 Likewise in Croatia, what we have in mind in relation to that indictment
1 is that serious, indeed very serious as the matters alleged are,
2 nevertheless some balance has to be drawn between two indictments. And
3 the Bosnian indictment is much the broader in terms of scope and length of
4 time, and that the Croatia indictment should be reduced or the evidence,
5 rather, should be reduced accordingly.
6 We noted in particular that it was proposed to call 20 experts,
7 including experts on psychiatry and propaganda. We are not satisfied that
8 those are necessary, and we have in mind reducing those to nine in all.
9 And as I say, reducing the number of witnesses proportionately to that in
10 the Bosnia indictment.
11 At the moment, on our -- on our mathematics, which can only be
12 approximate from your proposal, the proposal is to call or to have a total
13 of, it appears, to be 560 witnesses, 275 being live, and the time
14 estimate, we work it out, for the cases in chief is 120 days for the
15 Croatian indictment -- I'm sorry, 110 days for the Croatian indictment and
16 120 for Bosnia, a total of 230, which in chief would take a year and some
17 four months or so. That would be -- doesn't allow time for
18 cross-examination, and therefore, we would be looking at a Prosecution
19 case of something in the order of two to two and a half years from now,
20 and we have to say that we regard that as an unmanageable length and not
21 consistent with a fair and manageable trial.
22 MR. NICE: Dealing some of those points in different order,
23 opening statements, subject to any views by anybody else, we would think
24 the best course is to get on with the evidence, but obviously --
25 JUDGE MAY: I think it's matter for you.
1 MR. NICE: If others want opening statements, then we would feel
2 the need to make one ourselves, but if there is to be no opening
3 statements, we're entirely content with that.
4 If in the event that the accused wanted to make an opening
5 statement and the Chamber allowed him to make one, it probably would be
6 necessary for us to make one as well. We think it should be time limited
7 in those circumstances, but our basic preference would be to just get on
8 with the evidence. We had an abbreviated opening but nevertheless an
9 opening, and we think it would be better to get on with the evidence.
10 JUDGE MAY: Speaking for myself, I think that getting on with the
11 evidence would be better. We've had opening statement in this case which
12 have run to over five days, so I don't think we need any more.
13 MR. NICE: Can I, before I turn to the various topics that you've
14 helpfully raised for us to consider, just review the position in the
15 Kosovo part of the case for two reasons? One, to tell you what I
16 calculate to be outstanding to be dealt with in September. And two, to
17 give you somewhat of a snapshot of statistics, because I think the
18 statistics are helpful in showing how it may not be necessary or even
19 desirable to impose particular identified limits of time or numbers at
20 this stage and to rely on us doing our best to comply with the spirit of
21 the orders that you may make or wish to make.
22 First, where we are. Our calculation, and we've got a witness
23 list we can distribute for you which may be helpful, but in the broadest
24 terms, I mean, we can look at the detail if necessary, there's about two
25 to three weeks of evidence outstanding in Kosovo, including Mr. Lilic. If
1 you exclude Mr. Lilic, then I think it's only two weeks. As I say, we can
2 look at the detail in a minute and the time that evidence will take is
3 dependent on a number of things.
4 If I can first of all give it to you in headlines. Outstanding
5 crime base witnesses, depending on whether some of those for whom we've
6 made application are taken fully 92 bis or whether they're all subject to
7 cross-examination would take between three and five days. Allow for about
8 a week.
9 There are then one or two witnesses whose evidence we are still
10 seeking, and it arises from cross-examination, and we hope to have it
11 available in September and served in time for the accused and the amici to
12 deal with it. I can't necessarily identify the witnesses or even the
13 topics at the moment for fear of their not being able to be seen without
14 restraint, but they're limited in number and once the subject of
15 application the Chamber will see precisely why we will be applying for
16 them. It's always better to deal with issues once they're raised in a
17 Prosecutor's case in chief rather than wait for rebuttal.
18 So those witnesses might take part of or the best part of another
19 week, and then if Mr. Lilic is to be dealt with, as it were, in the Kosovo
20 time period and if, for example, the witness in respect of whom there is
21 an outstanding and unresolved application under Rule 70 is dealt with in
22 this same period of time, why, then, we think it might go up to a third
24 May I press on the Chamber that that is an extremely satisfactory
25 result given the original estimates of time offered by the Prosecution,
1 given the initial resolution of the Chamber that the Kosovo case should be
2 finished, I think, by the end of the week after next, which is one of the
3 two to three weeks that we would require in September, and given that
4 we've lost whatever it is, four weeks or so, for one reason and another.
5 We have, in short, not only met the deadline imposed, but we have done
6 considerably better than that deadline.
7 In arithmetical terms, our calculations suggest that we've only
8 taken, that is, the Prosecution's only taken some 92 or 93 hours. Of
9 course, a lot of our evidence has also gone in under 92 bis. We've taken
10 something of that order, with the accused taking about 140 hours, and the
11 amici about 14 hours. So that we've barely taken half the time.
12 If you look at the statistics simply in terms of the live witness;
13 the accuse has taken 13 per cent more time than we have.
14 So if we've managed to put our case in in respect of Kosovo in
15 under a hundred hours, which at a five-hour day is an astonishing limited
16 month or a little bit more, we are, I think, to be given credit for that.
17 And the Chamber will have in mind that we've achieved that result by,
18 first of all, successfully persuading the Chamber or the Chamber of its
19 own mind deciding upon reforms that have -- not reforms, procedural
20 techniques that have enabled evidence to come in more swiftly. Not only
21 92 bis, but as we term it now 92 demi-bis. But I suppose we should be
22 careful about extending our language too far. And then of course, there
23 is the list of those who will never be bis'd, but never mind. That's for
24 another day.
25 So we've done it by procedural techniques, and we've been able to
1 do it and we've been able to keep the Court fully occupied on all bar 20
2 minutes, I think, of its sitting times, roughly, by necessary flexibility
3 on our part, by reviewing witness lists and cutting witnesses when it
4 becomes apparent from the developing conduct here, cross-examination by
5 the accused and so on, cutting witnesses whenever possible and cutting the
6 evidence from particular witnesses whenever possible.
7 So although the initial target time given by the Chamber might
8 have been thought to be -- I don't mean in this in a pejorative sense --
9 arbitrary in the sense that it wasn't particularly calculated. It was a
10 timetable acceptable to the Chamber. We worked to it and we got there
11 rather better than that.
12 I've made it clear, I think, on previous hearings of this type
13 that I recognise the sense in the limitation of time and the brevity of
14 the case and subject to the conflicting, sometimes conflicting demands of
15 proving the case sufficiently but respecting the somewhat, some might say,
16 extended time requirements of the adversarial system, nevertheless, I will
17 do all I can to meet target dates as set by the Chamber, and I trust the
18 Chamber will accept that that is so.
19 When we then turn to your particular suggestions, and you came
20 first, I think, to deal with the order of indictments and whether it
21 should be Croatia first and Bosnia second, our position is really this:
22 We think Croatia and Bosnia is going to be economically dealt with in
23 terms of time if it is dealt with as a single case linked, as it is, in
24 time in any event. Of course, and in the most general terms, the Croatia
25 evidence will come before the Bosnian because that's the way things work
1 logically and chronologically. But there are areas of evidence where it
2 would be convenient, in terms of witness time taken, and convenient, we
3 would judge, for the Chamber to have topics covered comprehensively for
4 both indictments, whether we're looking at the role of the MUP or the role
5 of the VJ, or something of that sort, it might be simply much more
6 convenient to have a block of evidence that deals with the topic.
7 And of course, when we come to experts, the Chamber's already
8 indicated that it would be quite wrong to have more than one expert on any
9 particular topic, and we're not intending to. It would be one expert to
10 cover, in nearly all cases, all three indictments. We would, therefore,
11 intend to present evidence for the remaining two indictments on the basis
12 that it is a single case. The presentation will, we hope, be logical and
13 will be designed to bring to the Chamber, at an early stage, evidence
14 about linkage, about the overall course of events, from experts and from
15 live witnesses. And one of the purposes of doing that is that depending
16 on the scope of the evidence, depending on the cross-examination of it, it
17 may be possible to reduce very substantially witnesses in mind for coming
18 later. But in the same way as we've done it with Kosovo, it may not be
19 possible to forecast in advance which particular witnesses can be pruned
20 from the list until we see the earlier, more significant witnesses and how
21 their evidence is dealt with.
22 We have already prepared a list of witnesses. I haven't yet
23 served it because we haven't had a final discussion amongst the various
24 involved lawyers, but we have prepared a list of witnesses. It's
25 basically a Croatian list, but it incorporates a number of other witnesses
1 within its first 54 witnesses. And we believe that that first 54 or I
2 should say roughly 60 witnesses will provide an extended view of much of
3 the case and are likely to take the Chamber and the accused until about
4 the Christmas break, but of course it may be less than that. We just
5 don't know. And accordingly, if we're able to serve this list as we would
6 intend, if not before the beginning of next week in next week when those
7 with a particular interest in the Bosnian indictment are able to be
8 satisfied that it's a list with which they are as happy as those concerned
9 with the Croatian indictment, we can serve it at the beginning of next
10 week or in the middle of next week, then that should provide a working
11 plan for everyone to take them up to Christmas.
12 A number of experts are included in that list and a number of
13 high-level insider witnesses.
14 We would ask the Chamber at this stage not to make simply a cut in
15 numbers of witnesses because, in our respectful submission, that's
16 unlikely in itself to achieve anything except probably unwarranted anxiety
17 on the part of the Prosecution trying to budget when it's going to be
18 reducing witness numbers and time taken in any event.
19 Can I observe in passing that of course there are still two
20 decisions to be made that will affect the amount of time evidence will
21 take in any event? One is the decision to be made in this part of the
22 case about crime base witnesses being taken fully 92 bis. I know it's
23 only a small issue, but it may affect other parts of the case.
24 JUDGE MAY: Well, I think the answer is that as far as this part
25 of the case is concerned, the usual rule will be followed. I think that's
1 likely, though we haven't yet fully determined the witnesses. So it will
2 be not full but with cross-examination.
3 MR. NICE: Very well. We of course will press, because it's
4 important we do so in the other parts of the case, that full provisions of
5 92 bis should apply in many cases with relation to crime base evidence.
6 The provisions are there.
7 JUDGE MAY: In this part of the case there have been particular
8 issues which have been raised which have to be resolved. Then whether
9 similar issues will arise in other parts of the case is of course a
10 totally different matter.
11 MR. NICE: That we follow.
12 JUDGE MAY: And it may be that, of course, on each incident we
13 will hear one or two witnesses and then we will have to decide whether
14 real issues arise from the cross-examination or not or whether they're
15 merely argumentative and the like or tu quoque.
16 MR. NICE: Your Honour, I'm glad that the Court has mentioned that
17 because I was going to turn to that, perhaps curiously at first sight, but
18 turn to that when the Chamber turns to consider the medical condition of
19 the accused, and I can forecast now what I was going to say otherwise, and
20 it's this: The accused may require assistance to save himself by the
21 Chamber identifying issues, if necessary, as it were, on his behalf in
22 order to reduce the amount of time he spends in preparing to argue points
23 that simply exhaust him and serve no useful purpose.
24 It's going to be a matter for the Chamber how it deals with that,
25 but it seems to me that's something we can consider.
1 The second issue that has yet to be resolved and that may affect
2 the time evidence will take is the issue in the Appeals Chamber about
3 summarising witnesses. Obviously we are hoping that that matter will be
4 listed for hearing as early as may be in order to assist the further
5 conduct of this trial as well as to assist other trials. We don't express
6 a view on how much it might save in time were it to have application in
7 the Croatian and Bosnian indictments, but clearly it could have some
8 significant effect.
9 That's perhaps all I should say about the order of evidence. I
10 hope that the Chamber will accept our judgement that the cases should be
11 dealt with generally as a single topic, although of course Croatian
12 evidence tends to come first chronologically. Our provisional plan is
13 that crime base evidence would come towards the end of the case or at the
14 end of the case. It had to come at the beginning in the Kosovo case
15 because it was obvious there would be procedural problems to be resolved.
16 They now all have been. So in principle, it can come at the end of the
17 case. Coming at the end, it probably will be possible to reduce the time
18 it takes more than where it to come elsewhere because issues will be more
19 clearly identified.
20 It may be sensible to take the Croatian crime base evidence
21 somewhere before the end of the case, perhaps, as it were, at a notional
22 end of the Croatian part of the indictment. We're -- haven't made a final
23 decision about that, but that may be desirable not least because it would
24 provide some variety for the Chamber. And of course, it's necessary to
25 have some crime base evidence. We can't present these cases as entirely
1 dry events detached from the awful realities on the ground.
2 If I can leap to insiders and come back to deal with the Bosnian
3 municipalities in a second. We'd ask you not to again make any decision
4 on the number of insiders available to be called for several reasons, but
5 principally, I think these two: First, it's never very easy to know in
6 advance whether an insider is actually going to be available to us in due
7 course. Second, if in the event particular insiders do become available,
8 they may save an enormous amount of other evidence, and so in the
9 balancing exercise, one insider may turn out to be worth several other
10 witnesses, and there's great economy in being allowed to call them.
11 The fact that we list an intended number at this stage will not
12 free us from satisfying the Chamber and the Chamber from deciding on a
13 witness-by-witness basis that the witness should be called, and we would
14 ask you simply to leave that as an open issue, there being no real
15 advantage in imposing what might be thought to be simply an arbitrary
16 figure at this stage.
17 And as I think I have I've might clear and is perhaps indeed clear
18 from what we're doing in the case at this very moment, it may be desirable
19 if not even necessary for the Chamber to hear from insider witnesses close
20 or closer to the accused than other witnesses may be, whether or not the
21 totality of their evidence is evidence that the Prosecution would rely on,
22 because that is the way to get the best evidence about this case to a
23 discerning Trial Chamber.
24 Coming back then to the Bosnian municipalities, the 14 and the
25 three. As the Chamber will have in mind from the way things are put in
1 the filing of the 19th of June at paragraph 8, there has been this very
2 substantial reduction in municipalities upon which we will rely, from 47
3 to 14, eliminating nine. And as to the other municipalities, the 24, it
4 is only for particularly significant evidence that we will turn to events
5 in those municipalities, evidence that would qualify as linkage evidence
6 or otherwise have a particular significance. It is not the intention by
7 that evidence necessarily to prove counts in relation to those other
8 municipalities. Not at all. But the evidence will be significant and
9 important evidence going to linkage or other matters, possibly matters of
10 pattern, evidence that it would be, in our respectful submission, quite
11 wrong to exclude on a generalised basis at the moment and evidence that it
12 will be proper to consider when we seek to call it on an item-by-item
13 basis, because it's not possible for me to spell out in a way that will be
14 helpful to you now its value. It will have to be looked at individually.
15 But we would ask you not at the moment, because it would be quite wrong,
16 in our submission, to do so, simply to exclude it in general.
17 I trust the Chamber is heartened by the substantial reduction.
18 The plan of work set out in this filing is detailed, and the Chamber will
19 probably readily recognise from the way the material is set out the scope
20 for application of 92 bis or 92 demi-bis, if I can so describe it, for
21 proving these matters. And we simply do not know to what extent the
22 accused will feel it necessary or desirable to cross-examine these
23 witnesses in the very different circumstances from those applying in
25 Turning to Croatia, I'd like, if I may, to come back after further
13 Blank page inserted to ensure pagination corresponds between the French and
14 English transcripts
1 discussions with one of my colleagues about psychiatrists, but propaganda,
2 I think, is something that we would rely on as an important and
3 significant element in this case, that we may only be able to prove
4 compactly by an expert and we would press you at the moment to make no
5 excluding order on that. Propaganda is an important element in these
6 cases. Of course, it's been dealt with, we know, separately in Arusha for
7 the Rwanda cases, and extensively being dealt with there. And we would
8 ask you to allow us the opportunity to present an expert's report for
9 possible adduction in evidence.
10 As to the reduction, we would say that again this case is already
11 reduced, as the work plan shows, to a sensible size given the time that
12 may be saved by the application of 92 bis. And that again, there is no
13 reason to doubt but that we will and that I will, in particular, ensure
14 that sensible target dates for conclusion of the Prosecution's case will
15 be met and that by continued reporting to your Chamber, as I'm always
16 prepared to do, you will be in a position to be satisfied that I am
17 working towards and achieving that goal.
18 JUDGE MAY: So you're asking us not to impose a target date.
19 MR. NICE: Your Honour, if I can be absolutely blunt -- sorry.
20 JUDGE MAY: What I was going to say is that we have a target date,
21 of course, at the moment. And if you're not asking us to impose one, then
22 what is your time estimate?
23 MR. NICE: Your Honour, the target date that the Chamber has
24 imposed was April. In light of events and assuming the same availability
25 of court time, court working time, which is basically every day of the
1 week, between four and five hours a day, then it would probably be
2 inevitable that that time -- that target date should be put back by a
3 month or whatever to accommodate time that we've already lost.
4 We would know that the Chamber is working, then, on the basis of a
5 May or perhaps June conclusion. And I would much prefer to have that as
6 the target date, to plan on the basis that we can attempt to meet that and
7 report back to you if it becomes clear to us that we really can't. And
8 not to do that at Christmas or February, but to do it on a regular basis,
9 because these cases are very difficult to prepare and present, as I'm sure
10 the Chamber will accept. We haven't yet got into the stage of working
11 together just for Croatia and Bosnia because I've been much involved in
12 Kosovo, but we are now in the stage of making final plans for the
13 preparation for that part of the case.
14 I think, first of all, we will be able to present you and the
15 accused with a list of witnesses that will keep everybody busy until
16 Christmas. And by a snapshot summary of what that witness -- those
17 witnesses deal with, you will see how far we will be able to take the case
18 roughly by Christmas. And it should be possible for us, perhaps next
19 week, to set out in more detail how the balance of the period up and until
20 May or June of next year could be used, and as I would hope, could be used
21 in a way to conclude the case within that target time of yours. But if
22 it's going to be longer than that, then I must come clean and come and
23 tell you. But at the moment, I would say we hope to work to that target
25 JUDGE MAY: We will have to, of course, take into account the
1 medical condition of the accused as shown in the medical report with a
2 recommendation for further treatment.
3 MR. NICE: Well, Your Honour, I've touched on that once already,
4 and I have no idea what the Court is proposing, but of course my proposals
5 are on the basis of five days a week and the same numbers of hours that
6 we've had thus far. And of course if there is to be a variation in that,
7 there should, in all fairness to all parties, be an appropriate extension
8 of time to reflect any diminution in the sitting hours of the day, for
9 example. But I would encourage the Chamber to find other ways to lessen
10 the burden on the accused.
11 Principally, of course, we would press him through you to make the
12 use of lawyers to represent him. Other courts around the world, and I
13 think even in Arusha have imposed counsel on accused, and that is the way
14 he can save himself from the consequences of his ill health. If that is
15 not something that can be done, and we may come back to pressing that upon
16 the Chamber, then we would invite you to exercise your powers to narrow
17 the issues in such a way that his time can be better focused and his
18 energy more properly expended on what's truly material to this case. And
19 he may find that doing that will conserve his energies.
20 Two matters before I close. The experts listed within the
21 Croatian sector are to cover really all indictments. Likewise with the
22 number of insiders. They're really for all indictments, but as I've
23 perhaps already hinted, it's very difficult to know precisely how many
24 insiders are likely to be available. It's difficult to know how many we
25 are likely, of the present ones we have in mind, we are likely to want to
1 call given that unfolding events may make better witnesses available who
2 will make it unnecessary to call those who are of less value.
3 The psychiatrist, I'm informed and should have had this in mind
4 myself, is partly a fact witness and deals with the widespread character
5 of sexual assaults in both Croatia and Bosnia, and that's, of course,
6 significant, very significant, in cases of this kind, and we'd ask you to,
7 in principle, admit such evidence.
8 I'm going to check with my colleagues to see if there's anything
9 else they want me to say.
10 I don't know if I can help further.
11 JUDGE MAY: Yes. Thank you.
12 Mr. Milosevic, you've heard what's been said. There are three
13 matters for you to address us on in particular. The first is the time
14 that you require for preparation. The second is the issue of an opening
15 statement, whether you want to apply to make one and whether it should be
16 limited in time. And the third is your medical condition and whether and
17 what impact it has on the trial. If you want to say anything about that,
18 of course, you can. As you know, we've had the medical report in front of
21 THE ACCUSED: [Interpretation] You started these deliberations by
22 referring to Rule 73 bis. What does Rule 73 bis mean? What's it all
24 JUDGE MAY: It's about the Trial Chamber at a Pre-Trial Conference
25 fixing time limits and the like and numbers of witnesses on the
1 Prosecution. It's a Rule which relates specifically to the Prosecution.
2 I should point out there's another one which refers to the Defence, which
3 gives the Trial Chamber similar powers in relation to the Defence. But
4 we're only, at the moment, concerned with the Prosecution.
5 Now, that's really, as I've said before, really between the Trial
6 Chamber and the Prosecution.
7 THE ACCUSED: [Interpretation] All right. I wanted to know that
8 from the very outset, because it was my understanding, on the basis of
9 what you said and on the basis of what Mr. Nice said, the only question
10 here is the question of time. All issues pertain to time only.
11 Did I understand this properly?
12 JUDGE MAY: Well, you've heard what's been discussed. The Trial
13 Chamber is considering whether it should fix time limits on the
14 Prosecution or amend the time limit which has been fixed and whether it
15 should impose a limit on the number of witnesses.
16 As I say, that's strictly a matter for the Trial Chamber. It
17 doesn't really affect you. But what does affect you is the amount of time
18 you're asking for to prepare for the rest of the case. You've heard
19 what -- you've heard what the Prosecution says, that it will produce, and
20 we will have them produce this early next week, a list of 60 witnesses to
21 be taken between now and Christmas. On those you can concentrate. You
22 will have next week for preparation, so you will have a month, including
23 the recess, for preparation. There is also the matter of your medical
24 condition. Those are the matters which you should be addressing us about.
25 THE ACCUSED: [Interpretation] All right, Mr. May. I understand
1 what the questions are, but I would like to say first that it seems absurd
2 to claim -- for the Prosecutor to claim that they deserve credit for
3 shortening the time taken up through applying Rule 92 bis, through
4 accepting written statements made by witnesses. By doing this, more than
5 ever, you are practically making it possible for the other side to have
6 the possibility of serving here an unlimited quantity of their
7 fabrications and lies. And on the other hand, you are limiting the time
8 for contesting that. And all of this is considered to be a creditworthy
9 thing. I've already said that it seems that time is the only important
10 question here. If time is the only important issue, this is not any kind
11 of trial. It has nothing to do with justice, et cetera. So why are you
12 dabbling in all of this anyway?
13 You said to me in relation to this -- well actually, I'm not going
14 to ask you for nothing. I just want to present the facts here. Mr. Nice
15 explained here that he cannot deal with Bosnia and Croatia during the
16 cross-examination about Kosovo. I assume that the same thing applies to
17 me. I have received almost 90.000 pages for Bosnia and Croatia and about
18 500 cassettes. For 90.000 pages, a person needs 180.000 minutes to read
19 it only. So if I'm supposed to read, say, 500 minutes a day, I need 360
20 days to read this only once. And then I'm supposed to look at various
21 materials that I am to obtain from my associates with regard to the
22 contents of this.
23 So without doing anything else, without engaging in any other kind
24 of activity, that would be it. That is a fact that I wish to state
25 publicly here. And after all, you're going to deal with this the way
1 you've dealt with all other facts.
2 Secondly, the deadlines for discovery that are relevant here in
3 this institution. Thirty days. I was given the right to defend myself.
4 That is a right that you took note of and that is being shortened rather
5 than extended. Then those who have this as their profession, who do this
6 professionally and with a much smaller volume of work, they get 30 days. I
7 don't know about the friends of the Court. And I was given ten days
8 with the possibility of contacting only two associates who are my only
9 link for establishing any kind of communication. Every logic says that my
10 period would have to be longer rather than shorter.
11 What I said to you about 80 to 90.000 pages and 500 cassettes that
12 are out there and, of course, during these examinations I didn't have a
13 look at any of that, that is a job which certainly requires time, the time
14 I mentioned to you. That is quite clear. Although this entire matter is
15 a farce. It is retaliation, because it is amazing how --
16 JUDGE MAY: No. You are not going to abuse this trial in that
17 way. Now, if you've got relevant and sensible points to make, some of
18 them you have made, of course you can go on, but we're not listening to
20 THE ACCUSED: [Interpretation] I don't know if I've been abusing
21 anything. There seems to be a rule here that is inversion. I think I'm
22 the one who is being abused here, not you or this trial, especially this
23 trial that you thought of ten years after the events in Croatia took
24 place. For ten years, it didn't occur to you --
25 JUDGE MAY: You are abusing your right to speak, which will get
1 you stopped.
2 Now, you had some sensible points to make. Now, you revert to
4 THE ACCUSED: [Interpretation] All right, Mr. May. As for opening
5 statements, I think that you could have assumed what my answer would be.
6 I avail myself of every opportunity to speak here. You will decide as you
7 will decide, but make up your mind today. I don't want you to decide that
8 there will be no opening statements and then after that I listen to
9 tirades of Mrs. Del Ponte or Mr. Nice about Croatia and Bosnia and then
10 they say that that's not an opening statement or you say that subsequently
11 you changed your ruling. As it has happened here, you change your own
12 decisions in two or three days.
13 In relation to what I've just said to you about the materials that
14 were given to me and without any kind of rest, a person would need a year
15 to read that. A few minutes ago - I'm quoting you, Mr. May - you said
16 that the quantity of material should be such that it could be manageable.
17 That's what you said a minute ago. Of course, a manageable quantity.
18 That depends on the time unit for managing that quantity. With a paper,
19 you can deal with a paper, one paper, in three minutes. But 90.000 papers
20 will require, I assume, a different amount of time.
21 Therefore, I'm telling you once again that I am not asking you for
22 anything. I'm just pointing out facts to you and standpoints that you
23 have presented yourself.
24 As for my medical condition, I wish to remind you of the fact that
25 did not ask for any examination. When I was informed about your decision,
1 I said here that I have no objections to the prison doctor. I did not ask
2 for an examination, and you should not harbour any illusions that I'm
3 asking you for anything. You said then that that is what you ordered and
4 that that is your decision.
5 As a civilised man, when these people came to see me, of course I
6 allowed them to examine me and to have blood tests taken later, et
7 cetera. That is your affair. I never complained.
8 During these six months, I don't know how Mr. Nice has been
9 referring to four months. It's been six months. This is the end of July,
10 and we started in February. I never asked for an examination, a medical
11 examination. And even when I had high fever in prison, I told the prison
12 doctor that I am not asking for a break, and I'm not asking him for
13 anything, really.
14 So you're the ones who asked for this, and it is for you and it is
15 your affair.
16 JUDGE MAY: That may be, but you know what the report says about
17 your condition, your cardiovascular condition. You know, for instance,
18 that it recommends that your workload be reduced. Now, we have lost two
19 days due to your high blood pressure already. It's obviously a matter of
20 concern to the doctors, and therefore, it has to be a matter of concern to
21 the Trial Chamber.
22 If you want to -- we hear what you say about your position and
23 your attitude. If you want to say anything about the effect on the trial
24 and your participation in it, of course, you can do so, but it is
25 something which we will have to take account of.
1 JUDGE ROBINSON: Mr. Milosevic, before you comment on that, I'd
2 like to say something about your medical condition. Your health is a
3 matter of very great concern to me as a member of the Trial Chamber. The
4 doctors have recommended that you be given rest.
5 It is quite clear to me that the whole business of preparing for
6 cross-examination and cross-examination itself is extremely onerous, and
7 it has occurred to me that one obvious way in which you could have some
8 rest is if you were to appoint counsel.
9 Now, you have expressed your views before about appointing
10 counsel, but it may be that we could institute a system in which you would
11 share cross-examination with counsel. That would allow you some rest.
12 You're obviously very interested in cross-examining some witnesses, and
13 what I wanted to put to you was that the Trial Chamber might be prepared
14 to consider a system in which you appoint counsel, counsel would
15 cross-examine some witnesses, and you would also have the right to
16 cross-examine. It's a bit unusual, but I think it has happened in some
18 The overriding concern for me is your health. Your health is of
19 paramount concern to the Chamber.
20 THE ACCUSED: [Interpretation] Mr. Robinson, first of all, I wish
21 to say to you that I am convinced that you are speaking with good
22 intentions. Therefore, please do not take this personally, because I
23 think that you are an honourable man.
24 I do not recognise this court, and I have no intention of
25 appointing counsel for a non-existent court. This court is exclusively a
1 means of retaliation against the resistance that is being offered to the
2 New World order that is enslaving your country inter alia and many other
3 countries around the world. And it didn't even crossed my mind to take
4 part in this farce in any other way, and the entire world can see what
5 kind of farce this is, except to speak the truth when you are giving me
6 the opportunity to speak. You give me the opportunity to say the truth
7 only during this cross-examination and I avail myself of that opportunity.
8 As for my health, I did not ask for any privileges, and I never
9 asked you during these six months to take a single break. The fact that
10 you ordered that I be examined and that you got a report is your problem
11 now. It's not my problem. But I would like to add one more thing.
12 Mr. Nice's explanation that the working hours are five hours is
13 ironical. I get up at 7.00 and then I work until 4.00 in the afternoon.
14 The breaks are not times of rest for me. The entire day is taken up and
15 you are taking into account only this court time and the time that we
16 spend here in these chairs.
17 You know under what conditions a person comes here and under what
18 conditions a person leaves and how long it takes. If you are not aware of
19 it, then try to find out what it is like and then let us hear these
20 stories about five hours of working time.
21 So, Mr. Robinson, I respect your concern and your attention, but
22 you are aware of this position of mine, and I believe that my answer is
23 sufficiently clear to you both in terms of this Court and in terms of
24 everything that has been happening here.
25 JUDGE ROBINSON: I have heard what you have said, Mr. Milosevic.
1 It seems inevitable then that the Trial Chamber will have to consider
2 measures that take account of your health, and that is something which
3 we'll have to attend to as a matter of urgency.
4 JUDGE MAY: Do the amici have anything to add?
5 MR. KAY: No. All relevant matters have been dealt with, Your
7 JUDGE MAY: Thank you.
8 Mr. Nice, yes.
9 MR. NICE: One thing I should have covered earlier. My mistake
10 for not doing so. There are exercises being undertaken by those dealing
11 with both the Croatian and Bosnian indictments to review the exhibits in
12 order to see which exhibits can realistically be discarded as not
13 seriously expected to be required. Significant percentages of documents
14 are being identified as those that can be withdrawn at this stage, and we
15 will be in a position to notify all parties. I don't know exactly when
16 but comparatively soon. Either of the total number of the identification
17 exhibits that needn't be considered or if we have to do it in stages,
18 we'll do it in stages, but that exercise is very well under way and will
19 enable the accused and others to focus on documentation.
20 Can I just make two other points? One tiny technical matter in
21 relation to the Croatia/Bosnia part of the indictment. Documents, this
22 Chamber has, I think, in a previous case approached documents on the basis
23 that documents are dealt with as authentic unless challenged and,
24 therefore, time is not spent on the process of authentication in court.
25 We have more or less proceeded on that basis in the Kosovo sector. It
1 will always be helpful for us to know because it does save time if we
2 don't have to go through the process of authenticating documents, although
3 we can always do so and will always be in a position to do so.
4 And finally, I should have made it clear that although I'm hopeful
5 we could accomplish what's left in Kosovo in two weeks in September and
6 indeed to get all the Albanian-speaking witnesses into one week, which I
7 know is important for planning reasons within the Tribunal generally, we
8 would be grateful to be allowed at this stage for planning purposes the
9 third week in case we overrun or in case we are able to call Mr. Lilic in
10 that week.
11 JUDGE MAY: Mr. Nice, two matters. The accused talks of 90.000
12 pages and 500 cassettes. Is that right?
13 MR. NICE: I haven't, I'm afraid, done the sums. It looks as it
14 probably is correct.
15 JUDGE MAY: There seem to be nods all around.
16 MR. NICE: But of course by identifying individual witnesses, 40
17 or 50 witnesses, 60 witnesses for Christmas -- by Christmas, we'll also be
18 identifying either explicitly or implicitly, and I hope wherever possible
19 explicitly, the exhibits that will have to be focused on for those
20 particular witnesses, and I --
21 JUDGE MAY: The other matter is concerned with the Croatian
22 indictment, and there is a footnote in the pre-trial brief which refers to
23 the Prosecution not seeking to prove genocide in respect of the Bosnian
24 Croats. Now, I would like that to be confirmed if that is the case.
25 MR. NICE: Yes. I meant to flag the footnote myself. Can Your
13 Blank page inserted to ensure pagination corresponds between the French and
14 English transcripts
1 Honour just remind me of the number?
2 JUDGE MAY: 271 I'm told.
3 MR. NICE: Yes, Your Honour. That's the position and for the
4 reason set out in that footnote.
5 [Trial Chamber confers]
6 MR. NICE: It's page 271. I'm grateful to Mr. Wladimiroff, but
7 it's footnote 2076.
8 Your Honour, can I also make the obvious point, but for the record
9 I must make it, when the accused speaks of the focus on time, of course
10 the Prosecution has been and always is -- has been willing and sometimes
11 has been eager to take longer, to spend more time on this case. Its
12 willingness to condense matters and its focus on the saving of time is a
13 reflection of the more general interest that has been articulated on
14 several occasions by the Chamber, but it in no way suggests that we are
15 not willing to spend as much time as is proper for the proof of this case.
16 JUDGE ROBINSON: Mr. Nice, just going back to the question of the
17 documentation and the volume, the quantity, I believe the Prosecution can
18 and should do more by way of sifting and screening to ensure that what
19 comes before the Court is what is needed. It is true that the Chamber
20 does have a responsibility as well, but I believe that much more can be
21 done and should be done by the Prosecution by way of screening and
23 When Mr. Milosevic speaks of the vast quantity of documents before
24 him that he has to read, I must say that I understand and I sympathise. I
25 would like you to accept and acknowledge that the Prosecution does have a
1 responsibility to impose a rigour on itself, a discipline on itself in
2 that regard.
3 MR. NICE: We certainly accept that, and that is why at present
4 the raw statistics would suggest that the reduction in the exhibit list
5 initially served is up to the order of 40 per cent we may be able to save
6 and thereafter we may be able to go further. So I think that Your Honour
7 will find that that rigour has, indeed, already been applied.
8 JUDGE MAY: What would be, I think, of assistance to everybody is
9 an indication of those exhibits which the Prosecution is likely to rely on
10 in the first period. So if we could have a list of the 54 witnesses plus
11 the exhibits.
12 MR. NICE: Yes, Your Honour. We can certainly do that and we
14 JUDGE MAY: Yes. And if you can do that certainly bit middle of
15 next week.
16 MR. NICE: We'll do our best certainly.
17 JUDGE MAY: Thank you.
18 MR. NICE: Your Honour, there's one matter that touches Kosovo
19 only. Can I deal with that later? It's a particular issue of evidence in
20 relation to Kosovo.
21 JUDGE MAY: Yes. Well, we'll need to consider these matters.
22 We're going to take the adjournment now. We will then make an order
23 insofar as we can, and we will return and deal with other matters then.
24 Twenty minutes
25 --- Recess taken at 10.14 a.m.
1 --- On resuming at 10.40 a.m.
2 THE ACCUSED: Mr. May.
3 JUDGE MAY: Yes, Mr. Milosevic.
4 THE ACCUSED: [Interpretation] Well, since you gave the floor to
5 Mr. Nice after the amici, I believe I have the right to make a few more
7 In connection with what you are considering and deliberating
8 about, I believe it would be logical for you also to review the answer to
9 the question: What is the purpose of providing material that nobody has
10 time to read? What occurs to me also is something that Mr. Kay said at
11 one point when we had a discussion about the scheduling length and joinder
12 of these various cases. Namely, he said that there was no human being
13 able of handling such a trial. Perhaps that is precisely what the
14 Prosecutor is guided by.
15 JUDGE MAY: Mr. Milosevic, we have heard your submissions on this
16 point, and we are now going to give our ruling. No, we're not going to
17 hear you further. You've already given your observations. The Prosecutor
18 had a right of reply because it was their motion that was being dealt
19 with. You do not have one.
20 We've considered what the Prosecution have said about this case
21 and the time that will be taken. We have, therefore, decided that we are
22 not going to make specific orders in relation to exclusion of evidence.
23 We don't think that would be right. However, we are unable to accede to
24 the suggestion that we should make no orders in relation to the number of
25 witnesses and the time that will be taken.
1 We think it right for all concerned in the trial that they know
2 the limitations of time and the numbers of witnesses which are available.
3 This is an order that a fair and manageable trial for all those
4 who are concerned in it can be held.
5 I have indicated earlier the way in which the mind of the Trial
6 Chamber was working towards a reduction of scope, and we are pleased to
7 see that the Prosecution are working in the same direction. We will allow
8 a further three weeks for the Kosovo part of the indictment. We will
9 instruct the Prosecution, by the 31st of July, to serve a witness list
10 until Christmas together with the relevant exhibits. That will allow the
11 accused to concentrate in the time which is available to him on the
12 relevant matter in order to prepare for the period between October, as it
13 will be, and Christmas.
14 We will give an extra two weeks after the close of the Kosovo case
15 for preparation for the period until Christmas. We note that a
16 substantial reduction will be made in the number of pages and the number
17 of exhibits. We welcome that and invite the Prosecution to cut the number
18 even further to the core documents, that is, the documents which are
19 really relevant to the trial.
20 So the accused, in the time which will be available for him for
21 preparation in August and September, a total of six weeks, should
22 concentrate on the case before Christmas. He will then have a further
23 period, of course, of the Christmas recess and any other appropriate time
24 to prepare for the rest of the case.
25 We have considered whether opening statements are necessary.
1 We've come to the conclusion that the fairest way of dealing with that
2 matter is to allow opening statements for up to three hours each. So that
3 will be three hours for the Prosecution, three hours for the accused.
4 The timetable will then be this: The Prosecutor will have until
5 the 13th of September on the Kosovo case, two weeks' preparation in which
6 the court will not sit. The Prosecution will begin on the 30th of
8 We have considered the number of witnesses and the time which
9 should be available. We have indicated, as I have said, the way in which
10 our mind is working. We have come to the conclusion that there should be
11 a total of 106 witnesses, live witnesses, this is, in relation to Bosnia,
12 71 in relation to the Croatian indictment, a total of 177 live witnesses.
13 Given the time which is available and the rate at which the case
14 has been going, we've come to the conclusion that this evidence should be
15 heard by the 16th of May, 2003, and we will order, under 73 bis (E), that
16 that should be the time available to the Prosecution for presenting
17 evidence. And under 73 bis (C), we fix the number of witnesses at 177
18 live witnesses.
19 There will, of course, be, where appropriate, the opportunity to
20 put forward witnesses under Rule 92 bis.
21 If the circumstances alter during the trial, the Prosecution may
22 apply under the Rule for variation of this order. However, such variation
23 will only be made for good cause.
24 I turn next to the medical condition of the accused. We have
25 received a report, a medical report, which in its conclusion describes the
1 accused as a man with severe cardiovascular risk which demand careful
2 future monitoring. The authors recommend that his workload be reduced and
3 that additional medical treatment by a cardiologist is most visible.
4 The Trial Chamber considers that the accused should have such
5 cardiological treatment. When the cardiologist reports, the Trial Chamber
6 will consider what course of action to take, including the consideration
7 of any option which may be available for the future conduct of the trial.
8 Mr. Nice, there was a matter about the Kosovo part that you wanted
9 to raise. Is this a convenient moment or would it be better to deal with
10 it later.
11 MR. NICE: I'd be quite happy to deal with it now. Can I make one
12 point about the orders Your Honours made. I made the undertaking to
13 provide both the witness list and exhibits without fully consulting with
14 my colleagues. I gather that there will be difficulties in providing all
15 the exhibits -- in fact, impossibility the way of providing all the
16 exhibits by the 31st of July. We will get the list by then. May we
17 please have leave to provide the exhibits as quickly as we can or identify
18 the exhibits as quickly as we can and as soon as we have numbers of them
19 available. I hope it won't be necessarily actually to serve them again
20 because the accused has got them all. Would It simply be sufficient to
21 identify where they may be found?
22 JUDGE MAY: Yes. Provided that it can be done in a fairly simple
23 way. It may be appropriate to do it in stages as the various decisions
24 are made.
25 MR. NICE: Thank you. The issue in relation -- thank you for
1 that. The issue in relation to Kosovo is an entirely discrete issue. I've
2 got my papers. It's to do with the trucks of bodies or the truck of
3 bodies that's been found, and it's -- the issue is whether the Chamber is
4 alive to the fact that there is evidence before it already constituting
5 expert evidence going to show that at least in respect of two of the
6 bodies located in one of the mass graves in Batajnica there is DNA
7 evidence linking those bodies with bodies from Kosovo or with families
8 from Kosovo.
9 I don't know if the Chamber would find it helpful to review the
10 matter. Possibly with the accused at a later stage this week, if
11 necessary. The evidence has gone in through the Witness Billy Fulton, and
12 he's produced an expert report. At the moment we're not intending to
13 produce an expert to go through the sometimes time-consuming exercise that
14 DNA experts have to devote to such issues when they give them in
15 conventional trials, give evidence in conventional trials.
16 There are going to be further reports of a like kind that can be
17 produced in relation to DNA analysis of bodies found in those graves
18 linking them to families in Kosovo. And obviously that becomes
19 particularly important when in relation to the truck found in the river
20 the accused seemed to be cross-examining on the basis that such bodies may
21 have simply been the bodies of people who were involved in the unhappy
22 trade of smuggling individuals from country to country.
23 He's not represented, therefore, I can't go and ask him whether
24 he's accepting the DNA findings in the expert reports. And if the
25 Chamber's in a position to check on its understanding of the evidence and
1 if necessary to raise the issue with him, then we will be guided as to
2 whether we need to call a DNA expert, as we easily enough can, at the
3 consumption of some time in September.
4 JUDGE MAY: Well, we'll review that. If the evidence is there,
5 and I recollect Mr. Fulton's evidence, then it's part of the evidence in
6 the case and I would have thought that was sufficient.
7 MR. NICE: Yes. Of course it hasn't been challenged by the
8 accused and I'm being sensitive to the fact that he's not represented.
9 JUDGE MAY: I think you can't expect with a litigant in person
10 that he is going to challenge evidence in the way that you would expect
11 from a professional aptitude.
12 MR. NICE: I'm not remotely complaining about that. I'm really
13 much more concerned that he should understand what the evidence
14 constitutes at present. That's all, Your Honour.
15 JUDGE MAY: Yes. The next part of the hearing will be in closed
18 THE ACCUSED: [Interpretation] Just one clarification. I'm happy
19 to hear you decided that at least for those three hours I can get the
20 floor. You said both parties, the other side and I, but I would like to
21 clarify one thing. At the beginning, in the month of February, I spoke
22 after the opposite side and emphasised that it was not my opening
23 statement, that it was just a statement, and that I will make my opening
24 statement when the full Prosecution case is over.
25 So I would like you to consider these three hours, too, just as a
1 statement of mine, not my opening statement which I reserve for the end of
2 the Prosecution case, the entire Prosecution case. I hope that I have
3 made myself clear.
4 JUDGE MAY: Yes. You will have the opportunity when you open your
5 defence to make a further statement.
6 THE ACCUSED: [Interpretation] So that's about the opening
7 statement. As for the other issue raised here, from what Mr. Nice said a
8 moment ago, I see no proof that this DNA analysis is indeed the DNA
9 analysis of the people found in the Danube, because as you have heard, the
10 bodies from the refrigerator lorry found in the Danube have not been found
11 yet, and it may be analysis of completely different bodies. So I
12 challenge absolutely what he said.
13 JUDGE MAY: We're not going to go into the evidence now. We will
14 consider all the evidence in due course, but we're not going to argue
15 about it now. Now, we're going to go into closed -- we're going into
16 closed session.
17 THE ACCUSED: [Interpretation] Just one more thing, please,
18 Mr. May. One more very technical issue but very important, essential, in
19 fact. I kindly ask you again to issue an order for these materials. As
20 you can see, they are in enormous quantities, that they provided to me in
21 the Serbian language, because a great part of the material that I have
22 received so far has been submitted only in English. Even the pre-trial
23 brief, which is 350 pages long, has been served to me only in English,
24 which is inadmissible.
25 JUDGE MAY: We'll make enquiries about that.
1 Now we're going into closed session. We'll rise for five minutes.
2 --- Recess taken at 10.58 a.m.
3 --- On resuming at 11.09 a.m.
4 [Closed session]
12 Pages 8647 to 8680 – redacted –closed session.
24 --- Whereupon the Pre-Trial Conference adjourned at
25 12.16 p.m. To be followed by the hearing.