International Criminal Tribunal for the Former Yugoslavia

Page 1429

1 Friday, 18 January 2002

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.02 p.m.

6 JUDGE SCHOMBURG: Good afternoon, everybody. Madam Registrar,

7 will you please call the case.

8 THE REGISTRAR: Good afternoon, Your Honour. Case number

9 IT-97-24-PT, the Prosecutor versus Milomir Stakic.

10 JUDGE SCHOMBURG: Thank you. As to the fact that, first of all,

11 the accused is confronted with a new judge, I should like to introduce

12 myself. My name is Wolfgang Schomburg, former German Judge, Prosecutor,

13 and Defence counsel, elected by the General Assembly in March last year.

14 I was assigned by the President to Trial Chamber II, and I am now at the

15 same time the Pre-Trial Judge in this case.

16 May I have the appearances, please, for the Prosecution.

17 MS. SOMERS: Thank you, Your Honour. For today's appearance,

18 Susan Somers, senior trial attorney. And may I have the honour of

19 introducing for purposes of the Status Conference only, to familiarise the

20 Court with personnel Mr. Kapila Waidyaratne to my right. Mr. Michael

21 McVicker, to my right. Mr. Nicholas Koumjian, Mr. Massimo Scaliotti, and

22 Ms. Ruth Karper, our case manager.

23 JUDGE SCHOMBURG: Thank you very much. And now, from your side.

24 MR. LUKIC: Good afternoon, Your Honour. Branko Lukic for

25 Mr. Stakic, and with me is, today, Mr. John Ostojic, from Chicago.

Page 1430

1 JUDGE SCHOMBURG: Thank you. May I especially welcome Mr. Ostojic

2 on board. It's the first time you appear. Welcome aboard.

3 Now, to the accused himself. Dr. Stakic, can you hear me in a

4 language you understand?

5 THE INTERPRETER: Microphone for the accused.

6 JUDGE SCHOMBURG: The microphone is on? Okay.

7 THE ACCUSED STAKIC: [Interpretation] Yes, I can hear, Your

8 Honour.

9 JUDGE SCHOMBURG: Thank you. In addition, it's my duty to inform

10 you that you have the right to remain silent. On the other hand, you are

11 not the mere object of this procedure. You are the subject in this case,

12 the main person, and having the right to express yourself in the framework

13 of the Rules, of course. But I should warn you at the same time whatever

14 you say may be used in evidence, and even against you.

15 Did you understand this admonition?

16 THE ACCUSED STAKIC: [Interpretation] Yes, Your Honour.

17 JUDGE SCHOMBURG: Please be seated.

18 THE ACCUSED STAKIC: [Interpretation] Thank you, Your Honour.

19 JUDGE SCHOMBURG: Now, having a look on today's agenda, I intend

20 to start with a short information of last week's development in this

21 case. I'll try to make a short reference to the new indictment, some

22 annotations to the Pre-Trial brief. Then we have, of course, to discuss

23 Rule 66 disclosure. Then later on, the question of the adjudicated

24 facts. I'm aware there is a motion still pending. And later on, the

25 relationship between this case and the Brdjanin/Talic case.

Page 1431

1 If there are any other issues, they should be announced by the

2 parties already now, as far as the agenda is concerned.

3 MS. SOMERS: If I may, Your Honour, at some point, because there

4 will be a couple of comments I'd like to raise to the Court's attention

5 about matters in the either exhibit list or referring to the witness list,

6 I would need to request a brief period of private session because those

7 were confidential files. And if you would be good enough to inform me of

8 when a good time for that would be, I will do so.

9 JUDGE SCHOMBURG: Okay.

10 MS. SOMERS: The second matter, Your Honour, is pursuant to your

11 just-mentioned comment about the relationship of the two cases, Brdjanin

12 and Talic and Stakic, I would at that time take an opportunity to explain

13 some changes within the team structures that fall into line -- I believe

14 will fall into line with what I may anticipate. Thank you.

15 JUDGE SCHOMBURG: Okay. Thank you. Unfortunately, my earphones

16 or headphones do not work. I hope that we can proceed without.

17 But first of all, I have to give you some information on this

18 case. As you have learned from the decision of the Trial Chamber, in both

19 Brdjanin/Talic and this case against Dr. Stakic, we have to face the

20 situation that due to budgetary problems, the International Tribunal has

21 no means to start a sixth case. A sixth case, that means in the order of

22 time as you can find in our working schedule. The fourth case as

23 scheduled is the Milosevic case. The fifth was Brdjanin and Talic. And

24 our sixth case is, therefore, halted.

25 Most of you are aware that the General Assembly did not issue a

Page 1432

1 final approval on the Tribunal's 2002 and 2003 budget proposals. The

2 final review was held very late in the General Assembly's session, and

3 there was dispute among member states about the appropriate level of

4 funding that should be approved. The result was that an amount was

5 approved for all operation costs, based on the amount that had been

6 recommended by the Advisory Committee on the administrative and budgetary

7 questions. However, the fifth committee of the General Assembly, which is

8 the final reviewing body, decided not to act on the proposed new posts,

9 posts that are especially necessary for starting this case; that it's not

10 only on judicial support, but it's also, for example, on two other ad

11 litem Judges. Of course, we can't work without them. This brings us to a

12 certain extent indeed in a difficult situation.

13 First of all, it is your right, Dr. Stakic, to have as soon as

14 possible your case heard in the Tribunal Chamber, and we will do whatever

15 possible to start immediately.

16 And I want to tell all of you, this decision is not an obstacle to

17 proceed in our case as scheduled. We have to be aware of the fact that

18 there are a number of ifs and buts.

19 For example, it can be the case that this is not the sixth but

20 suddenly the fifth case, and therefore we have to be ready to start. And

21 there are some other possibilities we'll touch later on. But it's

22 necessary to be ready to go on as scheduled. This means to be ready for

23 start the 25th of February because, on a day-to-day basis, the decision in

24 New York can be revised and hopefully it will be revised, because it's

25 impossible from -- both from the side of the International Community and

Page 1433

1 from the side of the accused to live with the accusation of having

2 committed or contributed to genocide, and just for budgetary reasons, a

3 case is halted. Therefore, please believe me that whatever is necessary

4 will be done, both by the Trial Chamber II and the entire bureau and, of

5 course, the President of this Court, and that we can start without delay.

6 Therefore we should proceed in this spirit and try to do what we can,

7 envisaging late February as the starting day for this trial.

8 The next issue on my agenda is a very short one. We have, since

9 the last Status Conference, a new -- I would say a new form of

10 indictment. And this is the second amended indictment in a reorganised

11 form, with an additional corrigendum.

12 I want to ask the Defence counsels, were you able to discuss this

13 latest document of December with your client?

14 MR. LUKIC: Yes, Your Honour. We had the opportunity to discuss

15 this indictment with our client, and we found that there is nothing new,

16 actually, there is no new charges. And amendments only help us to prepare

17 our defence. So we think that it's not necessary for our client to plea

18 again because, as I said, no new counts.

19 JUDGE SCHOMBURG: Okay. Thank you. But as the right of the

20 accused is concerned, I have to ask the accused in person.

21 Dr. Stakic, are you in possession of this new document, and are

22 you aware of the content of this document?

23 [The accused stands up]

24 THE ACCUSED: [Interpretation] I have received it, Your Honour, and

25 I have had an opportunity to discuss it with my Defence counsel.

Page 1434

1 JUDGE SCHOMBURG: Fortunately, I can read what you say. And I

2 have to ask you, in the light of new -- this new and precise document do

3 you want to stay with your former plea, or do you want to change your

4 pleas or your position in whole or in part?

5 THE ACCUSED: [Interpretation] I retain my former plea, that is, my

6 plea of not guilty to every count of the indictment, Your Honour.

7 JUDGE SCHOMBURG: Thank you very much. This was just for

8 clarification. You stay thereby with your plea of 5th October last year.

9 Thank you, please be seated.

10 [The accused sits down]

11 JUDGE SCHOMBURG: I must admit that I'm happy to be in the

12 possession of this document, the Prosecution's final pre-trial brief

13 pursuant to Rule 65 ter (E).

14 Enormous work has been done, and I believe it was really in the

15 interest of the parties and, of course, the Tribunal to get this added

16 version, and it was worth to grant you leave for it being a little bit

17 longer. And it really helps, especially with the references, what

18 evidence will be shown in order to prove this or that fact.

19 It goes without saying that, of course, the Defence has the same

20 right. And the limit will be 100 pages, and your brief is, if I

21 remember correctly, due 6 February. Is it already -- is it all right you

22 can stay in this time frame?

23 MR. LUKIC: We are aware that the Prosecution didn't get a

24 substantial -- substantially longer period to compose their motion, so

25 we'll stick with our time frame as well.

Page 1435

1 JUDGE SCHOMBURG: Okay. Thank you very much.

2 Just going into some details of this document, we can find the

3 list of witnesses. Would it be possible for the Prosecution, in order to

4 facilitate the reading, to add to this list of witnesses a remark which

5 witness is a 92 bis witness and which witness you want to hear viva voce?

6 MS. SOMERS: Gladly, Your Honour. If the Chamber will allow us a

7 few minutes, I can have the information presented before this Chamber

8 dismisses itself today.

9 JUDGE SCHOMBURG: Okay. Thank you. As regards the expected time

10 frame, also my question goes first to the Office of the Prosecutor. What

11 do you believe will be the time frame for establishing the Office of the

12 Prosecutor's case?

13 MS. SOMERS: Stating initially that we have to give estimates, and

14 I'm confident the Chamber understands that --

15 JUDGE SCHOMBURG: Of course.

16 MS. SOMERS: -- we added up the estimates from the top of the 65

17 ter submissions and came to a figure plus or minus 140.5 hours of direct

18 examination. This includes our assessment that any direct examination of

19 experts, subject to Rule 94 bis, would be of course the actual report and,

20 therefore, not adding any additional hour time to that or minute time to

21 that. That, of course, will be an issue as well, in terms of discussing

22 Rule 94 bis with the Chamber. But it is impossible for us to have any

23 projection of how much longer a witness may take.

24 JUDGE SCHOMBURG: Yes.

25 MS. SOMERS: There was in one instance, I'm happy to say, that we

Page 1436

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Page 1437

1 thought one witness would be live, and we just came to learn, I believe

2 yesterday, that it would be an appropriate 92 bis. So that could assist a

3 bit. But we still look at 140.5, plus or minus.

4 JUDGE SCHOMBURG: And the estimated length of the entire prepared

5 documentation, including videotapes and hearing of audiotapes and so on,

6 in months, estimated time?

7 MS. SOMERS: We have in previous sessions with scheduled meetings

8 with Defence and the legal officers indicated a range of approximately

9 four to five months. Again, we would have to reserve, so as not to be

10 trapped by our own statement, that as an approximate figure. And if we

11 see that there is any difference, whoever is the senior in charge of this

12 trial will keep the Chamber informed of any possible deviations with

13 appropriate motions or simply with requests to discuss with all parties.

14 JUDGE SCHOMBURG: Okay. Thank you.

15 To this point, what is the position of the Defence as regards the

16 estimated length?

17 MR. LUKIC: If Your Honour asks us how long would our case take,

18 we really don't have the final answer right now. But we are sure that our

19 case would take less than the Prosecutor's case, most likely in between

20 two and three months.

21 JUDGE SCHOMBURG: Okay. Thank you for this, just to get the gist

22 of what will happen, which period of time will be consumed by the

23 proceeding.

24 Are there any questions with regard to the pre-trial brief you

25 received the 16th or the 17th? Any questions?

Page 1438

1 MR. LUKIC: To be honest, Your Honour, I haven't read the whole

2 pre-trial brief yet. I didn't have time because I got it yesterday. So I

3 also don't have any questions for now.

4 JUDGE SCHOMBURG: Okay. Understandable. Just trying to find out

5 where there are possible complications. One additional question was, of

6 course, as regards documents: Is there any question as to the

7 authenticity of documents we have to be aware of?

8 MS. SOMERS: There have been some preliminary discussions between

9 the two parties. As a matter of fact, yesterday we had a very productive

10 session with the Defence. And there is no agreement, however, we have --

11 we are both cognisant of the fact that it will make the trial go more

12 quickly if we can arrive at some stipulation as to, perhaps, matters that

13 would only affect weight as opposed to admissibility. Perhaps the use of

14 dossiers, adopting more the civil system, the dossier system and, again,

15 having questions relate to weight as opposed to admissibility, I hope that

16 it can be worked out between the two parties. Perhaps there may be

17 another conference that would be helpful with the legal officer to discuss

18 this.

19 In principle, other trials involving Prijedor, specifically

20 Sikirica and Kvocka cases, have used extensive documentation, and there

21 were in the Kvocka case three large documentary binders submitted. And I

22 found it - our perspective - to be a great timesaver. It allowed

23 argumentation from those binders to be made in the course of final

24 briefs. They were at the Chamber's disposal throughout the entire trial,

25 should the Chamber have wished to avail itself of it. And it is my hope

Page 1439

1 that in a case with as many documents as this case, that also may be a

2 vehicle.

3 I would like, if I may, just comment on something Your Honour said

4 a minute ago. The length of the trial, of course, will be very much

5 dependent on the need or not to prove certain facts that have been

6 accepted in other cases or of which judicial notice has been taken. And

7 that can have a substantial impact on time. So that, as well as issues of

8 authentication of documents, would be, in my view, a very essential focal

9 point for discussions between the parties now in order to remain within

10 reasonable time limits, and also not to flood the Chamber with unnecessary

11 motions.

12 JUDGE SCHOMBURG: Thank you. Yes, but I especially referred to

13 the questions of authenticity of documents. And there I really have to

14 invite the parties to come as soon as possible to an agreement or

15 disagreement in order to give the Trial Chamber the possibility to arrange

16 the necessary. Probably, we need some expert witnesses on this, but I

17 really don't want to be confronted with this issue in the Pre-Trial

18 Conference only. This has to be resolved earlier. And if there are any

19 obstacles, I would like you to inform me about this in order to have no

20 surprises, the 18th of February [sic], the scheduled date for the

21 Pre-Trial Conference.

22 Another question always arises on a last-minute basis, and which

23 should be resolved in the meantime, is a question of interpretation. I'm

24 aware you discussed this issue together with Judge Rodrigues. You

25 discussed it in the last 65 ter meeting. But now I want you to tell me,

Page 1440

1 are there any concrete obstacles to the disclosure of evidence with

2 respect to translation?

3 MS. SOMERS: If I may take one moment to consult with my

4 colleague.

5 JUDGE SCHOMBURG: Please.

6 [Prosecution counsel confer]

7 MS. SOMERS: Thank you for allowing me the opportunity to speak

8 with my colleagues. I am informed by Ms. Karper that if we had to give a

9 rough figure, some 75 percent of the documentation - again, that's rough -

10 has been translated. There are documents that are still in the pipeline

11 from CLSS. We are very much aware of the burden put on them by the number

12 of trials, particularly heavy documentation trials, and are trying to be

13 sensible in the submissions for translation. In other words, making a

14 clear cut of documents before putting anything in, which is the normal way

15 to do it.

16 I cannot indicate to you now, Your Honour, when we'll have back

17 translations, but we have a schedule. And it would be helpful

18 periodically, if things are falling behind, to inform both Defence counsel

19 and the Chamber through the legal officer, of issues, because I know we

20 are not unique. Every Chamber, every trial team is having this, and the

21 Defence is faced with the same issues. But I would have to give you,

22 again, in summary, about a 75 percent rate of being caught up with

23 translations.

24 JUDGE SCHOMBURG: I understood correctly that this interpretation,

25 from your point of view, is not an obstacle to go into the Pre-Trial

Page 1441

1 Conference having all the interpretation material on board. Is that

2 right?

3 MS. SOMERS: I cannot guarantee that everything will be translated

4 by the time of the conference on, I believe, 18 February. And if we are

5 able to have enough latitude to proceed, if need be, with drafts or

6 finding some mechanism as was discussed in the previous Chamber, if

7 there's some, as it were, more creative way, in fairness to Translation,

8 I'm confident that my successors will be able to handle it.

9 JUDGE SCHOMBURG: Thank you.

10 May I ask the Defence counsel, do you have already now any

11 problems with respect to translations?

12 MR. LUKIC: Your Honour, if you ask us about the Prosecution

13 documents, then as my learned colleague informed you, we have a great deal

14 of documents already translated. But if we speak about our documents, the

15 translation hasn't started yet. So probably we'll face in the future the

16 same problem the Prosecution is facing right now. But hopefully it will

17 be solved before our case starts.

18 JUDGE SCHOMBURG: Okay. I understand that your position can, of

19 course, be only less clear at this moment in time. Okay, thank you.

20 Now, we should proceed with problems of the Rule 66 disclosure.

21 Originally the deadline of the 16th of January was granted. Another two

22 working days, this would mean today. Can you please tell the Court if the

23 disclosure can be completed by today.

24 MS. SOMERS: Three boxes have been given, and Ms. Karper indicates

25 that the last box of some videotapes is here. So the Defence is in

Page 1442

1 possession of the materials that were requested. We want to express our

2 deep gratitude to the Chamber and to the Defence for enabling us to have

3 those two days.

4 JUDGE SCHOMBURG: I thank you for this work. And I see from the

5 nodding of the Defence counsel that they have got this material in due

6 time. And you can leave The Hague with a lot of documents, Mr. Lukic.

7 But to be quite clear, it's, of course, the right of the accused himself

8 to be -- to have access to the documentation itself. And I'm aware that

9 in other procedures, there was a major problem that there was no computer

10 or laptop provided and no facility to hear the audiotapes.

11 Is the same true with this case?

12 MR. LUKIC: I'm sorry that I have to inform Your Honour that

13 actually we handed in a laptop to our client, actually, to the Detention

14 Unit, two months ago but it hasn't been delivered to him yet. So we

15 prepared our client in a timely manner, but unfortunately the Detention

16 Unit hasn't done their part of the job yet.

17 JUDGE SCHOMBURG: Who is the person in charge?

18 MR. LUKIC: I don't know. Usually I contact Mr. Fraser, but I

19 don't know who is in charge really.

20 JUDGE SCHOMBURG: Any assistance from the side of the Office of

21 the Prosecutor to overcome this problem? This can't be true, that

22 documents, tapes, and CD-Roms are handed over, but it's not readable for

23 the accused.

24 MS. SOMERS: Your Honour, is that the issue? I was not aware --

25 JUDGE SCHOMBURG: The issue is that the Defence counsel told me

Page 1443

1 that already two months ago, a laptop was provided by the Defence, but the

2 accused in person, Dr. Stakic, has no access to this laptop until now.

3 MS. SOMERS: Is there -- I'm not clear that that is a matter

4 within our particular jurisdiction, unless they are documents that would

5 require a specific explanation from the unit. I am not totally sure that

6 we're understanding --

7 JUDGE SCHOMBURG: To make it quite clear, of course, you can

8 provide documents by CD-Roms, by audiotapes and whatever. But I would say

9 you also have to take care that the accused person has the glasses to read

10 this and, will say, have access to a laptop. And I am very grateful that

11 the Defence properly provided the client with this tool.

12 MS. SOMERS: Thank you for informing us of it. We were not aware

13 that there was a problem. And with your permission, Your Honour, we will

14 look into it with Defence counsel. We simply were unaware there was any

15 issue, and we will see what can be done on the part of our office.

16 JUDGE SCHOMBURG: Okay. Please inform me on Wednesday if this

17 problem has not been solved yet.

18 MR. LUKIC: Thank you, Your Honour.

19 JUDGE SCHOMBURG: The same is true for audiotape player?

20 MR. LUKIC: Our client has an audiotape player, yes. And he --

21 it's in his possession.

22 JUDGE SCHOMBURG: Okay. Thank you.

23 And Ms. Somers, I understood you correctly that with the

24 audiotapes in B/C/S containing previous witness testimony are not subject

25 to any Rule 75(D) request, and they have also been disclosed. Is it

Page 1444

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Page 1445

1 right?

2 MS. SOMERS: Your Honour, they have been requested. They have not

3 yet been disclosed. They take some time to have done by the technical --

4 JUDGE SCHOMBURG: Yes.

5 MS. SOMERS: The requests are in.

6 JUDGE SCHOMBURG: Okay. And they will be -- there's no language

7 obstacle in this case?

8 MS. SOMERS: What they are, Your Honour, is because they're in

9 B/C/S, they're simply turned over, subject to any necessary redactions for

10 moments of private session or whatever. But, yes, there should be no

11 problem, sir.

12 JUDGE SCHOMBURG: Thank you.

13 Before I come to the issue of adjudicated facts, just

14 for -- for being on the safe side, are there any motions -- any other

15 motions where you have not got a decision yet?

16 MS. SOMERS: Just to remind the Chamber that there is a matter on

17 appeal from the Rule 72 motions, the jurisdictional issue.

18 JUDGE SCHOMBURG: Of course.

19 MS. SOMERS: We are not aware of any other outstanding motions.

20 JUDGE SCHOMBURG: Okay.

21 From your side?

22 MR. LUKIC: My learned colleague told you that's the only pending

23 motion for -- at this moment, as we are aware.

24 JUDGE SCHOMBURG: Okay. Then we can come to the problem. The

25 Prosecution has filed requests with the President of the Tribunal to seek

Page 1446

1 permission to use evidence from past cases. This was filed as regards

2 Tadic, Blaskic, Kvocka and Sikirica. In the former -- in the last 65 ter

3 meeting, the Prosecution mentioned that they would seek Rule 75(D)

4 permission from the President and part evidence from past trials and

5 especially also evidence from Kovacevic.

6 Does the Prosecution still want to pursue?

7 MS. SOMERS: I think I can respond without having to go into

8 private session. So I'll be a bit generic in my answer. The motions were

9 in fact --

10 JUDGE SCHOMBURG: Do you prefer to go to private session now?

11 MS. SOMERS: If I may have one moment of it, I think, this --

12 JUDGE SCHOMBURG: Of course.

13 Private session, please.

14 [Private session]

15 [redacted]

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Page 1447

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22 [Open session]

23 JUDGE SCHOMBURG: Okay. Going on in open session, coming to the

24 Rule 68 disclosure. Is there any outstanding exculpatory material from

25 your side?

Page 1448

1 MS. SOMERS: Our obligations under Rule 68, as Your Honour knows,

2 are ongoing. So we have consistently given over matters that would fall

3 under that -- they're mingled with other -- other documents. But as we

4 find anything, we are immediately made -- and that will continue

5 throughout the trial and after.

6 JUDGE SCHOMBURG: Yes.

7 MS. SOMERS: I believe that we are in substantial compliance with

8 our obligations and endeavour to make sure that we stay so.

9 JUDGE SCHOMBURG: Yes. You will understand that I'm not totally

10 satisfied with the term "ongoing" in disclosure. Can I take it, as

11 granted, that the disclosure will have -- be finalised at least until the

12 18th of February?

13 MS. SOMERS: Hopefully with the 75-day issues out of the way, the

14 66(A)(ii) would. But 68, if something is found, even in the course of

15 assessing another witness, that will always go on. And I would not be

16 responsible to say that 68 is ever -- I could ever give a deadline on

17 that. We -- but to the extent we have had any documents that we believe

18 fall within that provision, they have been disclosed, and we will continue

19 to do so.

20 JUDGE SCHOMBURG: Yes. And under Article 68 - and this goes

21 without saying - you can't fix a deadline. But as regards the entire

22 procedure of disclosure, I really would ask the parties to give me a clear

23 signal if everything is not ripe before the 18th of February, because

24 this has to be the necessary deadline, and I do not want to enter once

25 again into discussions on 66 problems, translation problems, and so on, and the

Page 1449

1 Pre-Trial Conference just seven days ahead of the beginning of the trial.

2 MS. SOMERS: May I inquire of Your Honour? If there are

3 documents -- there are some that I would discuss perhaps a bit later, just

4 before we adjourn, concerning the pre-trial brief. But as -- if other

5 documents or witnesses become known to the Prosecution and we need to seek

6 pursuant to leave of the Chamber consent to -- if they're terribly

7 relevant and they just were not able to be disclosed earlier or found

8 earlier, will the Chamber ask for written motions on that, or can we, as

9 these issues arise - which they invariably do, as is the experience here,

10 something new is discovered perhaps - will the Chamber want formal

11 motions, or can it be raised in the course of the trial as it goes on?

12 JUDGE SCHOMBURG: If the Defence doesn't object, it can, from my

13 point of view, go within the framework of the trial, when there are -- and

14 it's self-evident, I would say, from the systematic, that when there

15 are -- whether there is evidence, be it exculpatory or from the point of

16 view of the Office of the Prosecutor, in favour of the Prosecution, of

17 course it has to be decided on a case-to-case basis whether or not this

18 evidence can be admitted.

19 But, please, I want to have your view on this point.

20 MR. LUKIC: Your Honour, we appreciate help from the Prosecutor's

21 side in disclosing 68 documents, documents envisaged in Rule number 68.

22 But we would like to have disclosed everything they have right now. So we

23 would appreciate if prior to our Pre-Trial Status Conference, we have all

24 exculpatory evidences they have in their possession disclosed before that

25 Status Conference. And of course, we don't object if they find something

Page 1450

1 new in the future, to have disclosed to us.

2 JUDGE SCHOMBURG: So I would ask the Office of the Prosecutor to

3 do until the 18th of February what they regard as necessary without any

4 unnecessary filing of motions. But then I'll ask you this in the

5 Pre-Trial Conference, and then I take it as your word that everything you

6 know, the Office of the Prosecutor knows, has been disclosed.

7 MS. SOMERS: We search our records, and as something comes up that

8 would fit, we will certainly make that available or indicate that we know

9 of it.

10 JUDGE SCHOMBURG: Okay.

11 MS. SOMERS: And we will keep the Defence informed.

12 There are some other issues on possible Rule 66 matters that are

13 subject to discussion, but that would be between the parties. Thank you

14 very much.

15 JUDGE SCHOMBURG: Okay. I have to thank you. I believe you can

16 be satisfied with this.

17 Then a very sensitive issue is the motion of the Prosecution filed

18 on 14 November 2001, a Rule 94 motion to accept adjudicated facts from the

19 Kvocka trial, defined in a decision dated 8 June 2001 from that trial.

20 The Defence filed on 7 January 2002 a response to the motion, objecting to

21 the motion.

22 On purpose until now there is no decision on this. And I want to

23 explain a little bit why there is no decision until now. We have a very

24 short motion from November 14, but unfortunately in the end, reference is

25 made to about 600 points, and there was no appendix to this motion with

Page 1451

1 this 600 points.

2 We got now the answer, or the response, from the side of the

3 Defence counsel, and this reads more like a history book than an issue to

4 be dealt with in a Trial Chamber.

5 I want to emphasise that this Tribunal is not mandated to write

6 history. We have to decide on individual criminal responsibility with

7 respect to the framework we are mandated. And this framework you can read

8 on all our documents: "Serious violations of international humanitarian

9 law committed in the territory of the former Yugoslavia since 1991." When

10 reading these documents, reference is made to former history of whatever

11 happened in 1389 and so on.

12 If we would go into details, it would not be only a problem for

13 the Court, but we are not mandated to discuss these issues. Additionally,

14 I would say with the tools and inherent restrictions of a criminal

15 procedure, it is impossible only to come close to reliable findings of

16 history. Furthermore, we should be aware that there is never one history

17 or one truth. History is, indeed, a collection of a number of stories,

18 and everybody has the right to have his own stories and his own perception

19 of these stories leading to different pictures of what an individual calls

20 history. It is only his or her stories. And of course, the story of

21 history as perceived by Dr. Stakic is a totally different one to other

22 persons sitting in this room.

23 But this is the right to have a different view on history. We

24 can't change this fact, and we are not mandated to do so. Therefore, I

25 should like to ask you to refrain, both parties, to refrain from all

Page 1452

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Page 1453

1 misleading attempts to provide evidence on history. Therefore, I should

2 invite the Office of the Prosecutor to withdraw the motion. And if it is

3 regarded necessary, to file a new one restricted to those facts relevant

4 for the decisions of the concrete case. Already now, you can base,

5 thereby, on the consents given by the Defence in the response. And as

6 regards the remaining bullets, I would like to have justification on

7 bullet-by-bullet basis why these facts are necessary pieces of evidence

8 and for which count in the -- of the indictment.

9 I'm sorry, but I have to say that it's evidently an easy exercise

10 to come along with a lorry full of documents, as it has been done here,

11 making reference to 500 points of another motion filling at least one big

12 file, documents which may only be relevant for this case. The transfer of

13 documents has, as we all know, to be restricted to relevant material

14 only. There is an obligation of the moving party to demonstrate the

15 relevance for the case. To do the contrary would mean, indeed, spoiling

16 not only human resources; it also endangers the necessary overview of

17 information.

18 As we all know, too much information can result in

19 non-information. Evidently, this has to be avoided. And I am quite sure

20 that the parties in this case are interested in a concentration of all the

21 information to the indisputed necessary. And therefore, I don't know if

22 you are ready to answer this question right now. But, indeed, I would ask

23 you, first of all, to decide whether you are ready to withdraw this motion

24 and file a new motion and restrict the entire issue of these proceedings

25 to the necessary.

Page 1454

1 MS. SOMERS: The Chamber will grant us leave either to amend, or

2 if withdraw is the term, we agree that it is a hefty list. And it was

3 fashioned from almost every case that dealt certainly with Prijedor,

4 Tadic. And there are some Omarska facts, I believe, in there. And many

5 go to historical issues that are repeatedly raised. And I wanted just to

6 take the opportunity to explain why there is such the emphasis on history

7 in these. And it comes in the course of particularly matters raised in

8 Defence or matters of ideology that are interwoven into testimony. And it

9 was addressed by a predecessor Chambers, who felt the relevance on that

10 basis.

11 Our concern, of course, and I agree with Your Honour, is trying to

12 make sure that the issues concerning time just up to the incidents in

13 Prijedor, the events in Prijedor, are best dealt with. But there are some

14 very important issues concerning nexus and the conflict that need to be

15 addressed. And if we are able to narrow them down -- again, we try to do

16 this with agreement of the other side. I think the more we can do -- we

17 appreciated the response, and we were glad it was in the form of a

18 filing. However, some of the responses were also individual history

19 books, and it was very difficult to wade through whether it was an

20 acceptance of the proposition or not. And if, perhaps, we could again sit

21 down and look at them point by point, scratch out what the Chamber has

22 indicated is not necessarily going to help it, then I think we can do

23 that.

24 If I can ask just for the ability to either craft it as an

25 amendment rather than a withdrawal, then that's fine. Thank you very

Page 1455

1 much. And we've started to do that a little bit.

2 JUDGE SCHOMBURG: Okay. Thank you very much. Of course, it's up

3 to you, whatever form you like. And indeed, I'm also grateful for this

4 document from the Defence. We know where we are. And the same is true

5 for you. I believe you are not interested in writing history but to come

6 as soon as possible to a solution on criminal problems.

7 MR. LUKIC: Yes, Your Honour. Thank you, Your Honour. This

8 motion is a result of the meeting with the senior legal officer from the

9 Chambers, and we agreed to file the motion and to answer point by point to

10 the motion filed by the Prosecution, actually to their appendix which we

11 luckily have, unlike you, Your Honour. And if the Prosecution withdraws

12 their motion and if they don't insist on such facts, we are more than

13 ready to withdraw our response. And it's also pointless if there is

14 nothing to be responded to.

15 But if the Prosecution is persistent and still wants to have those

16 facts, we are -- we want to have the answer on each and every fact.

17 JUDGE SCHOMBURG: That is, of course, easy to understand. But I

18 believe, having heard both sides, that there is a real basis for

19 discussion to overcome this gap and to come to a common solution. And it

20 would be a very good exercise if in the end, the Trial Chamber is only

21 seized with the remaining questions where you can't find any agreement.

22 But I believe the basis is there, and I will not decide on this

23 motion in the near future before I have heard something from your side.

24 But here, I would expect you to give me some information, also on an informal

25 basis, let's say until the 4th of February, in order that you give a

Page 1456

1 possibility for the Trial Chamber to decide on the remaining

2 disagreements. Is this a solution for you, you can live with?

3 MR. LUKIC: I'm sorry, Your Honour, we have a deadline of filing

4 the response -- actually to file our pre-trial brief, so the Defence will

5 be pretty occupied. And I don't know how much time would we have to

6 discuss the matter with the Prosecution. And obviously, they cannot do it

7 without us.

8 JUDGE SCHOMBURG: Yes. But I believe you can proceed this way,

9 that first of all you restrict your motion on the basis of what has been

10 discussed to certain points, and then come to the Defence with this

11 restricted approach, and then you can find an agreement. So I understand

12 the 6th of February is a very important date for you. But it should not

13 be later, let's say February 11. You can live with this? Okay, thank

14 you.

15 Then the Chamber will decide on the remaining issues immediately

16 after the 11th of February.

17 Evidently, on the question of remaining or pending motions, there

18 is one from the Prosecution filed January 11 seeking protective measures

19 for particular witnesses. We have to wait for the response of the Defence

20 until January 25. Would you be ready to respond already earlier, or can

21 you make a statement here on this issue?

22 MR. LUKIC: Your Honour, I really have to discuss the matter with

23 my co-counsel, and we will do it tonight. So probably beginning of next

24 week will be good enough to respond on this question -- to this question.

25 JUDGE SCHOMBURG: Thank you very much for this approach. But I

Page 1457

1 won't to urge you to do night work because also Defence counsels have

2 human rights. But I enjoy this approach that we can have it in the

3 beginning of the week, and we can decide on this.

4 Okay. The relationship between this case and Brdjanin/Talic, as

5 mentioned beforehand, it stays as decided by the Trial Chamber as a

6 separate case for a number of reasons, first of all, in order to have

7 Brdjanin and Talic started next week, which will happen. Then, of course,

8 it's a question of the future decisions taken in New York. If we get the

9 green light to start this case, this case will be started immediately.

10 You can be sure that not only we have problems with this, it's also the

11 question of having ad litem Judges on board. And I understand they are

12 already on standby position and they are ready to come to The Hague within

13 seven days from the green light of New York. Therefore, we can proceed.

14 Of course, the question is to protect the witnesses and

15 to avoid that they have to come twice to The Hague. We have to find out

16 how it will be possible to find whatever link between these two

17 proceedings, procedures. But this is not yet ripe for discussion yet.

18 It's only a question of the Office of the Prosecutor in protection of

19 these witnesses to take the necessary steps that in Brdjanin/Talic, if

20 possible, the questions related to Prijedor will be dealt with at a point

21 of time when this trial has started, too. And therefore, I wanted to hear

22 first of all, before I come, as I understand, in private session to your

23 comments on this issue, from the side of the Defence, their view. We

24 haven't got an answer because we decided earlier already.

25 What is your position with regard to any kind of connection with

Page 1458

1 the Brdjanin/Talic case?

2 MR. LUKIC: Your Honour, I have to be honest. We would like to

3 avoid any kind of joint hearing. Otherwise, whatever Your Honours and the

4 Prosecution finds necessary to have those witnesses at the same time

5 questioned in The Hague in two separate cases, so it's a technical

6 matter. The witnesses can be heard at one trial, and then a day or two

7 days afterwards on the other trial. But we wouldn't like to have the

8 joint trial, to have six Judges. And I think that it would cause much --

9 JUDGE SCHOMBURG: I believe this was a kind of wishful thinking

10 from the side of the Office of the Prosecutor.

11 MR. LUKIC: Quite right. Thank you.

12 JUDGE SCHOMBURG: Yes, of course. We have to be aware of the fact

13 that we learned about the estimated length of time that it would -- this

14 case would be a case of about eight or nine months, estimated time.

15 Indeed, the other case would need at least more than one year. And it's

16 also a question of the right of the accused, which has to be taken into

17 account, to have a fair trial, and part of this concept of a fair

18 trial is, of course, an expeditious trial. And therefore, your point has

19 been understood.

20 But on the other hand, we have to take care of the human resources

21 of the Tribunal and to avoid unnecessary double work. So I would like to

22 hear something about the actual point of view of the Office of the

23 Prosecutor. Do we need to do it in private session?

24 MS. SOMERS: No, Your Honour, not this point. There are other

25 matters I want to discuss in private session. Thank you for giving us the

Page 1459

1 opportunity to discuss this.

2 Of course, the issue of minimising stress on witnesses, on the

3 Court system, is a principal reason for trying to find some scheme that

4 will work. We are equally concerned about making sure that there is

5 consistency in the trials in terms of presentation. And in so doing, the

6 Office of the Prosecutor has decided that the same team which is doing the

7 Brdjanin/Talic case will have responsibility over this case, because this

8 case is a subset, effectively, of the Brdjanin/Talic case. This is one

9 move in light of the factors that you have reminded us of that we have

10 seen in your written decisions about trying to have some solution.

11 And the timing, I would have to ask my colleague, Mr. Koumjian,

12 who is a member of the Brdjanin/Talic team, who will be the day-to-day, as

13 it, were point person for this Chamber after today on these issues, as

14 Ms. Korner, the Prosecutor in the Brdjanin case, will assume the handling

15 of this matter pursuant to the reasons I have just enunciated for the

16 consistency that we are trying to seek, harmonising between the cases and

17 the minimising of wear and tear on the Chamber and Court facilities.

18 If the Chamber wishes to hear from Mr. Koumjian. I am less in a

19 position to address any matter from the Brdjanin point of view. I would

20 ask the Chamber to so address.

21 JUDGE SCHOMBURG: Yes, I would enjoy to hear something about it.

22 MR. KOUMJIAN: Thank you, Your Honour. The Brdjanin and Talic

23 team does wish to pursue with the Trial Chambers this possibility of

24 avoiding witnesses testifying two times, for reasons stated in our motions

25 and reasons I can reiterate. I'm sure the Court is aware of them. To do

Page 1460

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Page 1461

1 that, of course, much depends on the start of the Stakic trial. The

2 Prijedor case was expected to be presented, the evidence in that

3 Brdjanin/Talic case, in approximately February or March. There is

4 flexibility because that presentation of the Prosecution case in

5 Brdjanin/Talic will take, we think, about six months. We are doing it

6 municipality by municipality. We are doing it in chronological order when

7 more or less events began in the municipalities; in other words, which

8 municipality went first depended upon the actual chronology of events that

9 took place in that region. But in the interests of pursuing this, we

10 think, very important motion, we can move the Prijedor evidence to a later

11 stage of our presentation.

12 When exactly that is would depend upon the Court's decision in

13 Stakic, on the start of the Stakic case. I would say that even if the

14 Stakic case doesn't start, we will be pursuing possibilities of having

15 that evidence in Brdjanin/Talic presented in some form in the Stakic case,

16 just for example by way of deposition and have a combined deposition on

17 Stakic with the Brdjanin/Talic evidence. We want to avoid having what we

18 see -- while there may be a tactical advantage to any Defence attorney

19 having a witness testifying twice, it would be a horrible waste of

20 judicial resources and a horrible strain on the witness to ask him to come

21 and testify about what is often very horrific events two times during

22 one's stay.

23 JUDGE SCHOMBURG: Okay. I understand this point of view too.

24 Please take it as granted that the Trial Chamber -- the entire Trial

25 Chamber will do what we can to avoid any additional problems or stress for

Page 1462

1 the victims and witnesses of these days and months in 1992 in the former

2 Yugoslavia. We are aware of this problem. But on the other hand, we have

3 to take care of the right of the accused of individual cross-examination

4 and, of course, to have an expeditious trial. And it's also a right of

5 the accused to know what will happen. But as I mentioned before, we are

6 aiming now at a start as soon as we get the necessary budget from New

7 York. We have prepared everything. The ad litem Judges are waiting to

8 come here. And then probably -- maybe end of February, maybe March,

9 when we have the green light, we start immediately.

10 And I would appreciate it if the Office of the Prosecutor is

11 flexible enough to -- that we then -- today is not yet ripe, but then, be

12 it in March or beginning of April, can decide jointly how to proceed in

13 order to avoid any further harm for victims and witnesses and, on the

14 other hand, not to infringe any rights of accused. This should be

15 possible, and we have to be inventive to try some possibilities.

16 Already today I would exclude definitely the way of -- of a joint

17 hearing with six judges. But there are all other possibilities given.

18 And as you know, in this Tribunal, we have the so-called escalating

19 principle that the next case that is ripe will start. And even it can

20 happen that the case will be transferred to another set of judges. It's

21 possible when another case has to start earlier, then it could be that --

22 just to indicate all the possibilities, there are three totally different

23 judges, but it can also be the case that -- for example, this could be one

24 solution, that the Stakic case will be assigned also to the judges seized

25 with Brdjanin/Tadic. We have to wait and see. This is the future. And I

Page 1463

1 really have to apologise to the parties and especially also to the

2 accused, Dr. Stakic, that we are in this very difficult situation.

3 But in the spirit of cooperation, finding a way of coming together

4 with the individual interests, I believe we can come through. And at

5 least this is what I can say: When indeed, the case will take not longer

6 than eight months, it can be to a certain degree of security be said

7 already now that this case will be heard until the end of the year. This

8 time frame is one you can, and you should, live with.

9 Any other comments to this question of the relationship between

10 the cases? Thank you.

11 Any other matters the parties want to raise in addition?

12 I understood you wanted -- do you want to have private session

13 now?

14 MS. SOMERS: If I may, Your Honour.

15 JUDGE SCHOMBURG: Please, private session.

16 [Private session]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

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25 [redacted]

Page 1464

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6 [Open session]

7 --- Recess taken at 3.20 p.m.

8 --- On resuming at 3.52 p.m.

9 JUDGE SCHOMBURG: We are resumed. I apologise being late for two

10 minutes. But I can tell you from the OLAD that it will be granted within

11 the next week that your client may use the laptop. It is now granted.

12 But please tell me if it should not be the case. But I believe it's

13 reliable now, and this shouldn't cause any more problems.

14 Now, you had the floor, and we can go on in public session.

15 MS. SOMERS: I haven't been able to scroll back on this computer,

16 but if I am correct, I had asked for Your Honour's views on the Rule 94

17 bis expert statement provision. I'm sorry, may I just explain to you

18 what. We had prepared this case -- the changes in the Plenary took place

19 in December, mid-December, and we had prepared this case on the basis of

20 the old time frame that was part of Rule 94 bis. We had a similar issue

21 in the Kvocka case in which Mr. Lukic and I were opposing where the

22 affidavits were replaced by 92 bis. And by agreement of counsel, we were

23 adhering to the rule that was in existence at the time we prepared our

24 case, which was the affidavit rule.

25 And if this Chamber is minded to allow us to proceed on the same

Page 1466

1 basis that we had, which would be the 21-day prior to testimony filing,

2 unless there is a problem with it -- I cannot speak for my colleague

3 opposite. But normally, just have that much time, given the difficulties

4 with experts getting on board, getting the papers in, and the translation

5 of expert reports, which it has been brought to my attention is going to

6 be a problem because of the backup in CLSS. The requirements of

7 translation will of necessity cause some delay. I bring it to your

8 attention, Your Honour, because it is apparently a hot issue right now.

9 JUDGE SCHOMBURG: But first of all, I should like to know the

10 point of view of the Defence counsel. Evidently, 94 bis (A) has changed,

11 and it's not necessary to have a time limit prescribed by the Trial

12 Chamber. Would you agree with the proposed proceedings on the basis of

13 the former Rule 94 bis referring to a time frame of 21 days?

14 MR. LUKIC: Yes, we agree, Your Honour.

15 JUDGE SCHOMBURG: Okay. I thank you for this cooperation. And

16 any problems with regard to 94 bis (b)?

17 MS. SOMERS: We would ask that the same rules apply, the same time

18 frame that would have been in effect under the prior rule, the acceptance

19 or not of the statement.

20 There is one matter I would like to raise --

21 JUDGE SCHOMBURG: Can we just conclude this -- okay, then we will

22 proceed with the Rule 94 bis in the former version. And hereby I

23 prescribe the time limit as 21 days as regards (A); and 14 days as regards

24 (B). Accepted? Okay.

25 MS. SOMERS: Very much. Thank you, Your Honour.

Page 1467

1 And pursuant to this Rule, it had helped in short -- if

2 appropriate, and I would have to see once statements are made, if the

3 Chamber does not necessarily see that live cross-examination would be

4 helpful but would ask for a -- as it were, a refuting paper or a report

5 from the other side. That was one method that was used in Kvocka. I just

6 wanted to bring it to the Chamber's attention. Perhaps it might be

7 something to look into if it would help in terms of cutting down trial

8 time, and the particular -- it concerned an historical report which

9 instead of bringing our challenge live, we brought our challenge in the

10 form of a counter-paper. This may work, and I would have to leave it

11 certainly in the hands of my successor trial team to raise with you. But

12 it was something that met with some success, and it saved a lot of time.

13 JUDGE SCHOMBURG: Yes, I am aware of this. And indeed it saved a

14 lot of time, just through papers in this way.

15 Are you prepared to follow these lines in this case too?

16 MR. LUKIC: If we may reserve our right to consult first, and then

17 about this we can discuss on that Pre-Trial Conference, if you don't

18 mind.

19 JUDGE SCHOMBURG: Okay. I would say let's do it this way: We

20 will have a 65 ter meeting before, and then you can find out whether or

21 not you can come to a solution.

22 MS. SOMERS: Thank you, Your Honour. Because we also may have

23 some we would like to bring live. But it was an agreement -- thank you.

24 JUDGE SCHOMBURG: Okay. Fine.

25 Some other issues to be raised by the parties now?

Page 1468

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Page 1469

1 MS. SOMERS: I do not see anything else on my agenda. Thank you,

2 Your Honour, for asking.

3 JUDGE SCHOMBURG: Please feel free and take the floor.

4 MR. KOUMJIAN: I think the Court understands what I'm about to

5 say. It would be, of course, as helpful as possible to both the Stakic

6 trial and the Brdjanin and Talic trial to understand as soon as the Court

7 has information when the Stakic case might begin, because the Court has

8 already indicated you don't know and will inform us as soon as possible,

9 but as you can imagine, for scheduling of witnesses for how we prepare

10 both of these cases, it will be -- we need to have some advance notice to

11 coordinate with the witnesses and prepare.

12 JUDGE SCHOMBURG: Yes. Please also to this extent, take it as

13 granted that I am in close contact with my colleague Judge Agius, and I

14 did already during the break. And whatever will happen as mentioned, this

15 case will start separately as, soon as possible, and we have to find out a

16 way to come through all these obstacles as smoothly as possible. And we,

17 as the Judges, will keep in contact.

18 As you mentioned before, you will start with Banja Luka in the

19 Brdjanin/Talic case. And possibly it would be a little bit too early to

20 say already now that Prijedor could really start in, let's say, end

21 December. This was -- would be the time you need for your presentation in

22 Brdjanin/Talic, only the municipality Banja Luka; right?

23 MR. KOUMJIAN: Well, I'm a little confused. Your Honour said the

24 end of December?

25 JUDGE SCHOMBURG: I'm sorry, end of March. End of March.

Page 1470

1 MR. KOUMJIAN: I think that would be no problem to put off

2 Prijedor until the end of March. We can -- we have enough municipalities

3 to present --

4 JUDGE SCHOMBURG: Okay. You can work with a flexible response.

5 Whatever will be the outcome here, you can start in another municipality

6 and wait with Prijedor until we have started.

7 MR. KOUMJIAN: Yes. But can I just ask the Court to understand

8 the huge coordination problems for us involved in scheduling these

9 witnesses. As soon as we can know about this, it will be much easier for

10 us to manage it. Thank you.

11 JUDGE SCHOMBURG: Okay. Any other issues from the side of

12 Defence? Yes.

13 MR. OSTOJIC: Yes, thank you, Your Honour. John Ostojic again.

14 Your Honour, I raise an issue earlier you addressed with respect

15 to Rule 68. Counsel and I spoke during the break, and unfortunately I was

16 unsatisfied with learning the fact that the documents that we received

17 today, 20 volumes of witness statements, maps, et cetera, they were not

18 earmarked or identified as being any Rule 68 exculpatory material.

19 Instead, the OTP has indicated it's commingled and all inclusive in that.

20 I believe, quite frankly, from other cases here before the

21 Tribunal, that the 68 Rule requires the Prosecutor to identify and

22 disclose those exculpatory statements. That would be my first request to

23 the Court, to ask the OTP to break down for us, as we had in the Keraterm

24 cases and in other cases, specifically those documents and evidence that

25 they believe fulfil the requirements of Rule 68.

Page 1471

1 In that vein, Your Honour, I'd like to raise two specific issues,

2 if I may, concerning this Rule. We have not had a complete opportunity to

3 review the 20 volumes, but we did discuss it with the Office of the

4 Prosecutor. There are two areas we think that are very important, and

5 that is that the credibility of Prosecution evidence, including witnesses,

6 anything that can lead to assist the Defence in defeating or attacking the

7 credibility of the witness should be produced to us.

8 For example, in other cases, we've had these issues, such as visas

9 for witnesses who are protected or not protected in the United States,

10 Switzerland, elsewhere. We need to know the connection, if any. And

11 again, we don't know what that is. But if any with the OTP, how was it

12 that they were able to get these new citizenships or visas or statuses

13 within those states. That was very important.

14 In the Keraterm case several months ago, that was a very

15 significant issue. And the Court had to take some time to contemplate

16 it. The OTP was kind enough to provide us with data supporting that there

17 was no unfair inducement. It goes to the issue of inducement, and it may

18 lead to some credibility issues with various witnesses.

19 My subsection on that, Your Honour, is that with respect to

20 particular experts who have met with the OTP - and we have certain names

21 specifically that we have questioned in other cases - they have in essence

22 met with the Office of the Prosecutor on three to five occasions before

23 they went purportedly during their duties as a journalist to interview

24 both the accused, Dr. Stakic, and other formerly indicted individuals and

25 accused here before the Tribunal.

Page 1472

1 We believe sincerely that that goes to credibility. Did the

2 Prosecutor send them on a mission? Did the Prosecutor invite them and

3 prepare for them various questions to ask of the individuals like the late

4 Simo Drljaca. It certainly has an effect because we're dealing with the

5 Prijedor area. That I don't believe is included within the materials, but

6 again, I reserve the right to criticise or to object to it, since we

7 haven't gone through it in its entirely, Your Honour. But I wanted to

8 raise the point since we may begin the trial in shorter time than we

9 anticipated. Thank you.

10 JUDGE SCHOMBURG: To be honest, I would say the last question you

11 raised, the question of the credibility, is one you have to raise during

12 the trial hearing. And it's not the question of disclosure of material.

13 Of course, you are free, whatever you want to discuss and ask in the --

14 during the cross-examination, what it's all about with these visa problems

15 and so on. I believe we shouldn't discuss this question today. It's not

16 yet ripe for this.

17 With respect to 68, indeed, I would like to have your response to

18 this question raised, that the -- as I understood, the material is not

19 identified as Rule 68 material.

20 MS. SOMERS: Your Honour, the binders which are provided today -

21 excuse me - are pursuant to 66(A)(ii), which are prior statements -- they

22 are referring to prior statements of witnesses and the witness statements

23 that would be used, to the extent that we have the prior statements. I'm

24 terribly sorry.

25 I'm sorry, Your Honour. I just want to consult.

Page 1473

1 The 68 aspect of prior statements is that there could be an

2 inconsistency in a prior statement, and it is provided with -- that I

3 would assume is the basis for asking for prior statements, and those are

4 in there. Separate materials which may have Rule 68 characterisations

5 have been provided. I have to check and make sure of that so I don't give

6 any inaccurate information. But it has not been necessary to say this was

7 68 or 66. It was raised in another Chamber. And again, I would like to

8 check the ruling of that Chamber. But off the top of my head, that was

9 not required. Mr. Scaliotti informs me he believes that was in the

10 Krajisnik case. That was not a requirement.

11 The Prosecution requirement is to make sure the information is

12 communicated, and how counsel who is charged with reading what we give

13 them views it is a matter, again, of the Defence's strategy. And it is

14 given not in necessarily these massive sums. We look for it; and as we

15 find it, it is turned over. Where we can have -- if there's any type of

16 documentary -- I don't want to use the term "collection". But if there

17 are a number of documents which we believe have that value, then one may

18 find them in a larger turnover. But these things are not -- we don't stop

19 doing Rule 68.

20 But these binders are 66(A)(ii), and any prior statements that we

21 have been able to get through the system. And of course, as they keep

22 coming through, we will give them. They will continue right up to the

23 time a witness testifies. If it did not make the first round and we have

24 it, it will be turned over. There may be statements that are in our

25 possession not taken by the Office of the Prosecutor. The opportunity --

Page 1474

1 I'm sure that the Chamber, as well as the Defence, is aware of the vast

2 number of documents in the -- within the OTP. And if we find something

3 has missed the first cut, as soon as it's found, it goes right in. But

4 there are materials that arguably are 68 there in there, and that is the

5 Defence's call. But they have the prior statements as we now have them.

6 JUDGE SCHOMBURG: I do not intend to decide on this issue right

7 now. But on the first glance, I would say there's a two-fold approach.

8 First, it cannot be exclusively decided by the Office of the Prosecutor if

9 material is of an exculpatory nature or not. Even those evidence which

10 seems to be in favour of the position of the Prosecutor can be, of course,

11 in favour of the Defence counsel. And therefore, we should avoid

12 unnecessary work.

13 But I indeed -- and I would believe that this is systematic of our

14 rules, that in case the Office of the Prosecutor believes that this is

15 explicitly and solely exculpatory material, it should be indicated as

16 such. Only these documents where you feel obliged under Rule 68 to

17 disclose this material, this should be indicated. And if you disclose

18 such material in future, I would ask you really to mark it as 68

19 material. Then we all understand the purpose of this material.

20 It's, once again, the same point I addressed earlier with the

21 overload of documents. All the parties should take care and, first of

22 all, ask the question whether or not it's really necessary to disclose

23 this material and to add another volume of material to the already

24 existing deluge of paperwork. So therefore, please do it; and by doing

25 so, there will be a more or less restrictive approach. When you decide

Page 1475

1 yourself is it 66, is it 68 material, and probably you say it's none of

2 that and, therefore, it's not necessary at all to disclose this material.

3 But from the side of the Defence counsel, having been myself

4 Defence counsel for years, I would indeed appreciate to find out what are

5 the jewels in all this paperwork and, yes, take advantage of this

6 situation. So if it's not necessary, we should not restart and categorise

7 these documents disclosed to you until now. You can agree? Okay.

8 MS. SOMERS: May I respond? Thank you, Your Honour, for the

9 opportunity to respond. I do have concerns because of the prior ruling in

10 another Chamber that it's going to cause issues within the Office of the

11 Prosecutor and great variation in practice. And therefore, I would ask

12 for an opportunity to do a bit of additional research and a submission on

13 this matter before the Chamber makes a final determination in order, just

14 for consistency, and because of volume and the breadth of the language of

15 68, in our view, is very unworkable. We want to make sure we haven't

16 mischaracterised something. But I would ask for an opportunity to look at

17 the prior decisions of the Tribunal.

18 Excuse me.

19 JUDGE SCHOMBURG: Two minutes.

20 MS. SOMERS: Thank you.

21 Mr. Koumjian has indicated that -- I won't have to check it. He

22 has enlightened me, but apparently it was ordered and --

23 MR. KOUMJIAN: I'm willing to accept the Court's compromise. I

24 think that will work. It won't be a problem in the future to identify the

25 Rule 68 material as Rule 68. Again, there will be a lot of material that

Page 1476

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Page 1477

1 will be both. But the explicitly Rule 68 material will be identified as

2 Rule 68. We will identify it; but also if you get a document that's not

3 translated, that's a pretty good hint that it's Rule 68, because we are

4 not required by the Rules to translate Rule 68.

5 MS. SOMERS: Thank you, Your Honour, for the opportunity to

6 clarify.

7 JUDGE SCHOMBURG: That seems to be a more or less frivolous

8 approach; but if we can all live with this, it shouldn't cause any

9 problems. It's only for the future. We shouldn't come back to former

10 documents. But in future, there must be a reason why you disclose this

11 material, then it should be marked as such.

12 Any other issues from your side, please?

13 MR. LUKIC: Your Honour, only one more, and I'm not asking you to

14 rule today. This Defence team was offered to receive the so-called Banja

15 Luka collection of documents. And afterwards, the future Prosecutor in

16 this case told us that we should use our 66(B) rule right to have those

17 documents disclosed. But right now, we do not want to use 66(B) rule, and

18 still we think that we have a right to have those documents disclosed.

19 The reason why is that those documents are not the Prosecution documents;

20 those are documents that belong to Banja Luka. And when the Defence team

21 goes to Banja Luka and asks for these documents, every single team gets

22 the response that those documents have been seized by the Prosecution. So

23 it's not possible for us, although we know which documents we have to find

24 to get those documents.

25 So we have two solutions: Either the Prosecution has to return

Page 1478

1 those documents to Banja Luka, or they have to disclose those documents to

2 everybody who asks for disclosure. So I'm not asking you to rule today,

3 and I am -- I know that my learned colleague will respond. But we really

4 think that those documents are not the Prosecution documents. If we have

5 the situation that somebody breaks in from the Defence into their Chambers

6 and take those documents, and they ask for them from us and we say, No,

7 you cannot have it, you have to use some rule to have it, I think that is

8 not right.

9 JUDGE SCHOMBURG: Before I give the floor to the Office of the

10 Prosecutor --

11 MR. LUKIC: We are not going to break in.

12 JUDGE SCHOMBURG: -- my frank question: Do you ask now or request

13 a joinder with Banja Luka and all the other municipalities, or

14 what's the relevance to our case?

15 MR. LUKIC: We don't know what's the relevance until we see the

16 documents, but we would like to go through all of them to see whether

17 there is anything exculpatory.

18 JUDGE SCHOMBURG: I would say you have at least to demonstrate

19 that there could be relevance to our case. Otherwise, I would understand

20 that you follow the lines of the Office of the Prosecutor saying, more or

21 less, there has to be not only joint hearing; but as it was added later

22 on, there should be not only a joint hearing, but even a joinder.

23 And if you want to make believe us that it's necessary to go

24 through all the municipalities, also in the framework of this concrete

25 case, please give us other arguments in order to be able to decide. But

Page 1479

1 until now, I can't see the relevance of material of Banja Luka, first of

2 all, to this case. And in addition, we should avoid to speak or to have

3 the language -- the material of Banja Luka or any other municipality.

4 It's no value in itself. I would say a party can only refer to concrete

5 material, and you can't ask us to go on a fishing expedition.

6 MR. LUKIC: Thank you, Your Honour. Only what I wanted to

7 emphasise is - and I'm sorry to be so persuasive - that probably 99 per

8 cent of those documents are not related to Prijedor, but Prijedor is part

9 of Banja Luka region. So it might be that some documents have been hidden

10 inside Banja Luka documents, although they belong to Prijedor collection.

11 So only to eliminate any doubts, we would be willing to go through

12 all of these documents. Otherwise, as I mentioned, we probably don't have

13 an interest in 99 per cent of those documents. But we want to be sure and

14 to eliminate any possibilities. That's only why -- and as I mentioned, we

15 were offered to get those documents, and then suddenly the Prosecution

16 changed its mind. So we're also a bit suspicious that there must be some

17 reason why.

18 JUDGE SCHOMBURG: Probably the reason is to avoid unnecessary

19 filing of documents.

20 MR. LUKIC: But the documents, Your Honour, are on the CDs. So we

21 ask for those CDs, not for hard copies.

22 JUDGE SCHOMBURG: But as a practitioner, I would really be

23 surprised if you wouldn't have access to those CDs.

24 MR. LUKIC: Well, we cannot have access to those CDs really, for

25 now.

Page 1480

1 JUDGE SCHOMBURG: So then please let's hear the Office of the

2 Prosecutor on this point.

3 MS. SOMERS: The classification of fishing expedition

4 unfortunately could arise from this. Just to let the Court know, these

5 are -- there was some discussion about burglarising into offices. These

6 are pursuant to a lawful search warrant. So it's a very different

7 scenario.

8 We have encouraged -- because there is no real basis in the Rules

9 to allow simply going through things, we've encouraged the formulation of

10 a 66(B) motion that would assist us in making the assessments we have to

11 in responding. The volumes are staggering, and it could choke -- just

12 even reviewing for purposes of relying on a CD. I would challenge the

13 assertion that these documents could have been given to the Defence if

14 they had walked into whatever municipality or county and just said, "Give

15 me these documents." There's no showing of entitlement anyway, and I

16 would doubt that much of this would necessarily be available just upon a

17 request.

18 If a 66(B) motion is calculated, I'm confident my colleagues

19 would -- my successors will deal with it and we will try to narrow it.

20 But it is a very, very voluminous amount of material, and I think it

21 could -- it could be best managed in the way the Court suggested.

22 JUDGE SCHOMBURG: Okay. You said in the beginning that you don't

23 want me to decide on this issue today. I only want to make it quite clear

24 already now that from my perspective, it is up to the moving party to

25 demonstrate that only there may be relevant document in this stack of

Page 1481

1 documents, but there is a relevant document, and to identify this

2 document, not only make reference to the documents of the Municipality-- of Banja

3 Luka. This is indeed not enough.

4 And here, in addition, you have to demonstrate that this document

5 can be, and why it can be, of relevance for the decision on issues related

6 to Prijedor only.

7 And I really appeal to all parties, also, concerning this

8 question: Please let us restrict ourselves to the issues that are based

9 on the indictment. And this is the only basis of our proceedings. I'm

10 aware of the link between Banja Luka and Prijedor. But until now, we are

11 in the happy situation that we have to deal here, in parenthesis, -only-

12 with the question of Prijedor. And this should be the case in future.

13 Otherwise, as I mentioned before, you would really be inviting for an

14 entire joinder of the cases, and I believe this is what you want to

15 avoid.

16 Okay. Any other issues? None from your side?

17 From the Prosecutor's team?

18 Sometimes I'm hesitant to say is it really a question of equality

19 of arms to look to this side and then to this side. But I'm quite sure

20 this will not cause any problem. So it will be better for you, Defence

21 counsels.

22 But before concluding, of course we have to raise the question in

23 this Status Conference about the situation in the Detention Unit and of the health

24 of your client. Do you have any problems?

25 MR. LUKIC: Your Honours, we are aware there is no problems with

Page 1482

1 health of our client, and he's physically and psychologically fit, ready

2 to stand trial.

3 JUDGE SCHOMBURG: Okay. Thank you.

4 MR. LUKIC: You can ask Mr. Stakic himself personally.

5 JUDGE SCHOMBURG: This was really what I intended to do now.

6 Dr. Stakic, do you have any health problems or some other problems

7 related to your situation in the Detention Unit?

8 [The accused stands up]

9 THE ACCUSED: [Interpretation] At present, I have no problems, Your

10 Honour.

11 JUDGE SCHOMBURG: Okay. And from your point of view, there are no

12 obstacles to start this case by the end of February?

13 THE ACCUSED: [Interpretation] No, Your Honour.

14 JUDGE SCHOMBURG: And I can tell you whenever there are any

15 problems related to the situation in the Detention Unit, please feel free

16 to contact immediately via your Defence counsels the Trial Chamber. And

17 we have to solve these problems immediately, because we have to take care

18 of your situation. And sometimes things do not happen just for the day we

19 have a Status Conference, and therefore, we need your information. And

20 when we have the information, then we can help you.

21 The best example today was even when you have problems only with a

22 computer or laptop, please let us know immediately, because we want to

23 assist, everybody here in the room.

24 THE ACCUSED: [Interpretation] Thank you very much for your

25 understanding, Your Honour. I do understand that this was not

Page 1483

1 intentional, the problem with the computer. It was due to the Christmas

2 and New Year's holidays, and one had to look at it. So I don't think it

3 was done on purpose.

4 In any case, thank you again for your humane treatment and for

5 your care. Thank you.

6 JUDGE SCHOMBURG: Please be seated. I thank you.

7 [The accused sits down]

8 JUDGE SCHOMBURG: And if there is no other problem now, I have to

9 thank you all of you for this working together until now, when reading the

10 files, one can really say in a spirit of cooperation. And I would say

11 it's in the favour of all the parties to go on working in this spirit.

12 And I want only to remind you that we have to settle

13 everything - I emphasise "everything" - before we have the Pre-Trial

14 Conference the 18th of February. And when you have a look on the

15 courtroom calendar, you can identify that we will meet again in

16 Courtroom II Monday, the 18th February, 9.30 until 1.00. And I hope

17 everything will be settled before in the framework of the 64 -- 65 ter

18 conference. And if not, please let me know before February 11 to enable

19 the Trial Chamber to make the necessary decisions in preparation of this

20 18th of February.

21 And then in the courtroom schedule for February, in addition you

22 will find that as from Monday, 25 February, from 9.00 in the morning until

23 13.45, we have courtroom facilities available for hearing this case.

24 And I want to close this session hoping that all the means will be

25 prepared to enable the Tribunal to go on as scheduled, and with respect to

Page 1484

1 this case, it would mean to have a possibility to start as soon as

2 possible. On the basis of this schedule, we'll say that we hopefully can

3 meet, despite all other rumours now, already the 25th of February. I know

4 it's only a maybe, and you are not satisfied with all these ifs and buts,

5 but these are common problems, and we have to solve these problems

6 together.

7 I thank you very much for today, and see you then. Thank you.

8 --- Whereupon the Status Conference adjourned

9 at 4.30 p.m.

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