Tribunal Criminal Tribunal for the Former Yugoslavia

Page 25075

1 Monday, 28 July 2003

2 [Open session]

3 [The accused not present in Court]

4 --- Upon commencing at 9.06 a.m.

5 JUDGE MAY: A report has reached us, Mr. Nice, and I hope you too,

6 of the accused's illness in the Detention Unit. A doctor is apparently on

7 his way to see him and we will order a report for this afternoon, but it

8 means that obviously we cannot sit today to do anything substantial by way

9 of business. There are some administrative matters about the Rule 92 bis

10 witnesses which I wish to raise with Mr. Groome.

11 MR. NICE: Certainly.

12 JUDGE MAY: Unless there are any matters that you wish to raise.

13 MR. NICE: No. Apart from administrative matters, arguments on

14 procedural matters whether 92 bis or otherwise could conceivably continue

15 in the absence of the accused once Mr. Kay is here i.e., tomorrow, on the

16 following basis, that the accused declines to participate in procedural

17 arguments save to repeat his particular position on all witnesses being

18 available for cross-examination, and in those circumstances, it might,

19 were there other arguments to be deployed, be possible to deal with them

20 contingent on the basis of his having further observations to make when

21 he's reviewed either the transcript or a video of proceedings conducted to

22 whatever extent possible in his absence. That's the only way we can think

23 of of saving time.

24 JUDGE MAY: As far as you're concerned, are these rulings of

25 significance before the recess?

Page 25076

1 MR. NICE: I think the answer is probably yes, because we need --

2 we have only 60 days left by your calculation and we have to make

3 budgeting decisions between categories of witnesses and that's a daily

4 process, so the earlier we get rulings on 92 bis the better.

5 Can I perhaps just say this to assist the Chamber. We don't know

6 whether the accused will be here tomorrow or whether he will be here on

7 Wednesday. The Slovenian interpreters were travelling today to be

8 available tomorrow and Wednesday. I've asked VWU to put them -- or

9 whoever is dealing with them, not VWU, CLSS to put them back to travel

10 tomorrow to be available on Wednesday or Thursday and, again, it's always

11 possible we could put them back tomorrow when we have the up-to-date

12 medical report to travel on Wednesday for Thursday and Friday. So we've

13 got that degree of flexibility with the interpreters for the witness

14 Kristan.

15 It seems on our witness list the witnesses we should dispose of at

16 this week, if at all possible, B-174 who, I think, will come first subject

17 to whatever the position of Kristan is. B-174 should really come first

18 because particular security concerns. It may be here or in private

19 session Mr. Groome will be able to tell you about that. And the witness

20 Erdemovic is the other witness who should be heard if at all possible this

21 week and I'm asked to remind you that he has protective measures for face

22 and voice distortion, but that he will of course be testifying under that

23 name, the name I've given, which is his name at the time, not under any

24 other name.

25 That's probably all I can help you with at the moment. The Court

Page 25077

1 has --

2 JUDGE MAY: Is there anything we should know about the witness you

3 mentioned? You said in private session.

4 MR. NICE: I think Mr. Groome can deal with that better. But the

5 Court also indicated last week that it would be trying to find an extra

6 session, as it were, somewhere this week, and I know we lost another

7 session on Friday. I would realise that seeking more time may be in

8 conflict with any sensitive medical condition of the accused, but if the

9 Court's able to give us any indication of whether it had provisionally

10 planned to make a session available on maybe Wednesday afternoon or

11 Thursday afternoon, that will help us do with our provisional planning,

12 which of course involves both sending witnesses become and keeping enough

13 witnesses here.

14 JUDGE MAY: The answer is we have not considered it at the moment,

15 but no doubt it is something we can consider and it rather depends on what

16 happens with the medical condition of the accused.

17 What --

18 MR. NICE: I should also have told you the part-heard witness

19 whose position I think you considered on Friday has to go back today so

20 that his evidence can only be concluded on some subsequent day but at

21 least he drops from this week's list.

22 JUDGE MAY: Yes.

23 MR. NICE: Insofar as that save us problems. It just becomes very

24 difficult and of course very expensive to keep witnesses around but there

25 is no alternative for it. We will send them back as rapidly as we can

Page 25078

1 consistent with ensuring that we can make whatever use of time at maximum

2 is available to us. Unless I can help further.

3 JUDGE MAY: No. But perhaps Mr. Groome could tell us about the

4 other witness in private session, please.

5 [Private session]

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24 [Open session]

25 THE REGISTRAR: We're in open session.

Page 25081

1 JUDGE MAY: There plainly is a limit to what we can do in the

2 absence of the accused but we can at the very least consider the

3 Prosecution position in regard to these various witnesses. I'm going to

4 begin, Mr. Groome, with the Bijeljina, Bratunac, Zvornik witnesses who

5 remain, beginning with 1058, who is from Zvornik.

6 MR. GROOME: Your Honour, with respect to Witness 1058, the

7 Prosecution's position, and the amici have agreed, that it is not

8 proximate to the acts and conduct of the accused. This particular

9 witness's evidence is cumulative to Witness B-1237 with respect to one

10 particular killing in that this opinions identifies the same victim as the

11 Court has heard live testimony about.

12 There is a reference to the involvement of one of Arkan's Tigers

13 in that killing. It is the Prosecution's position that cross-examination

14 isn't essential, although we would recognise that the Court may very well

15 disagree upon reading the statement and think that it might be appropriate

16 for this particular witness to appear for cross-examination.

17 JUDGE MAY: Next is --

18 THE INTERPRETER: Microphone, please.

19 JUDGE MAY: 1613.

20 MR. GROOME: Your Honour, given the nature of this, this is a rape

21 victim, I'd ask that we discuss this in private session.

22 JUDGE MAY: Yes.

23 [Private session]

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11 [Open session]

12 THE REGISTRAR: We're in open session.

13 MR. GROOME: Your Honour, with respect to this witness, once again

14 it's the Prosecution's position, and the amici confirm this position, that

15 it is -- the evidence in this statement does not go to the acts and

16 conduct of the accused. I would note for the Chamber that this witness's

17 evidence is strikingly similar to that of Mr. Fadil Bajanovic who

18 testified regarding the Kozluk deportation, but I would also point out,

19 Your Honour, that there are substantial references to both JNA and Arkan's

20 and Seselj's men in a rather different light than portrayed by other

21 witnesses and perhaps it would be -- the Prosecution would concede that it

22 would be appropriate to have this witness appear for cross-examination.

23 JUDGE MAY: Yes. 1462.

24 MR. GROOME: Your Honour, this particular witness again does not

25 go -- his statement does not go to the acts and conduct of the accused and

Page 25083

1 is cumulative. Mr. Kay, in his submission, agrees with that position.

2 Once again, it is cumulative of the testimony the Chamber has heard about

3 Fadil Bajanovic and it is the Prosecution's position that when the Chamber

4 engages in the analysis recommended by 92 bis (A), this is one of those

5 witnesses that falls clearly on the side of the spectrum favouring the

6 submission of such evidence purely in written form without

7 cross-examination. So it is the Prosecution's position that this witness

8 should not be required to appear for cross-examination.

9 JUDGE MAY: 1702.

10 MR. GROOME: Once again, Your Honours, the Prosecution's position

11 that this statement does not go to the acts and conduct of the accused and

12 is purely crime base evidence and that position is agreed to by the amici.

13 It is the Prosecution's position that there should be no

14 cross-examination. This is a straightforward witness that is -- gives

15 cumulative evidence of the events surrounding the takeover in Bratunac

16 municipality, and I would remind the chamber of two witnesses of which

17 this testimony is cumulative of and those are two unprotected witnesses by

18 the name of Gusic and Becirovic. They were 92 bis witnesses that appeared

19 for cross-examination.

20 JUDGE KWON: Does he not mention the involvement of JNA units?

21 MR. GROOME: Yes, he does, Your Honour. The Prosecution's

22 position is that the particular issues as they relate to the JNA were

23 adequately cross-examined with those other two witnesses.

24 JUDGE MAY: 1499.

25 MR. GROOME: With respect to this witness, Your Honour, it's the

Page 25084

1 Prosecution's position that does not go to the acts and conduct of the

2 accused, a position which the amici agree with. Once again, the

3 Prosecution's position is that it is cumulative evidence of the takeover

4 of Bratunac and of the events that happened just prior to the takeover.

5 In this particular witness's statement, there is no mention of the JNA,

6 and once again, the Prosecution's position is this is another example of

7 the type of statement which clearly falls in within the type of evidence

8 that 92 bis (A) provides for being heard by the Chamber without

9 cross-examination.

10 JUDGE MAY: I turn to the other two applications concerning

11 Visegrad and Brcko. Yes. We will take Brcko first. Do you wish to deal

12 with this in private session?

13 MR. GROOME: Yes, Your Honour.

14 [Private session]

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15 [Open session]

16 THE REGISTRAR: We're in open session.

17 JUDGE MAY: Yes, Mr. Tapuskovic.

18 MR. TAPUSKOVIC: [Interpretation] Your Honours, I think that I

19 could be of assistance. Perhaps I could state our views in relation to

20 our general position in this regard.

21 JUDGE MAY: Yes. Do you want to deal with matters -- if you're

22 dealing with matters which were dealt with in private session, then we

23 should be in private session. So those were the last two applications.

24 In relation to the first application, you can deal with that in open

25 session.

Page 25091

1 MR. TAPUSKOVIC: [Interpretation] I would like to start from

2 Witness 1058, please, from the very beginning. This is the first witness

3 that we talked about, because these are our general principles, and I

4 believe that even in the absence of Mr. Kay, I can state our views with

5 regard to some of these matters so you could rule as soon as possible.

6 JUDGE MAY: Yes.

7 MR. TAPUSKOVIC: [Interpretation] As far as Witness 1058 is

8 concerned, that is the first witness we talked about, the Prosecution said

9 that Arkan's men are mentioned there too. So therefore, I think that

10 cross-examination would be indispensable.

11 As for Witness 1630, I believe that we can agree that Rule 92 bis

12 (A) can be applied because this is a person who lived through a trauma and

13 there is no need for this person to go through this trauma again and to be

14 exposed to cross-examination.

15 As for Witness 1521, we see again that the witness speaks of

16 Arkan's and Seselj's men. So in view of our general principles, I believe

17 that this witness should be cross-examined.

18 Then Witness B-1462. We accept the arguments of Prosecution.

19 Cross-examination is not needed in this case.

20 Then Witness 1702. Reference made to the participation of the JNA

21 there and we believe this witness should be cross-examined.

22 Then 1499. We agree that this should be done according to rule 92

23 bis (A) and that cross-examination is not required. Then we move on to

24 Brcko, 1407. Arkan's men are mentioned there.

25 JUDGE MAY: Yes. We'll go to private session.

Page 25092

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8 [Open session]

9 THE REGISTRAR: We're in open session.

10 JUDGE MAY: We'll consider the various matters raised and sit

11 again when the accused is fit enough.

12 MR. NICE: Can I inform the Court that the extended complete

13 witness list we've been preparing will be available this afternoon. There

14 may still be some changes that will have to be made in relation to the

15 Sarajevo witnesses but we're trying to get it into as final shape as we

16 can. Amended versions of the fill-box documents will be available for

17 Croatia and Bosnia by the end of the week. I think probably Kosovo is

18 sufficiently unchanged from the earlier versions that there may be no

19 utility in serving that. And I think also I should have a chronology

20 available. All of that will be served in hard copy and electronically.

21 I don't see much need for time to be spent this week or sought to

22 be spent on administrative matters even the accused is fit. Far better we

23 get on in evidence, but I just take five minutes at some stage to identify

24 some forthcoming issues that we can argue and discuss in September.

25 JUDGE MAY: Very well. We will adjourn.

Page 25096

1 --- Whereupon the hearing adjourned at 9.53 a.m.,

2 to be reconvened on Tuesday, the 29th day of July,

3 2003, at 9.00 a.m.

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