International Criminal Tribunal for the Former Yugoslavia

Page 1521

1 Wednesday, 10 April 2002

2 [Pre-Trial Conference]

3 [Open session]

4 [The accused entered court

5 --- Upon commencing at 2.31 p.m.

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

7 would you please call the case.

8 THE REGISTRAR: Yes, Your Honour. Good afternoon. This is case

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

10 JUDGE SCHOMBURG: Thank you. Could I please have the appearances

11 of the OTP, Ms. Korner.

12 MS. KORNER: Joanna Korner, Nicholas Koumjian, assisted by Ruth

13 Karper, case manager.

14 JUDGE SCHOMBURG: And appearances for the Defence?

15 MR. LUKIC: Branko Lukic.

16 JUDGE SCHOMBURG: Dr. Stakic, can you follow the proceedings in a

17 language you understand?

18 THE ACCUSED STAKIC: [Interpretation] I can, Your Honour.

19 JUDGE SCHOMBURG: Just in order that it's not forgotten by the end

20 of the day, do you have any health problems or are there any contributions

21 you want to make as regards the conditions in the detention unit?

22 THE ACCUSED STAKIC: [Interpretation] I have no health problems for

23 the time being, and I have nothing else to say at this point, Your

24 Honour.

25 JUDGE SCHOMBURG: Thank you. You may be seated.

Page 1522

1 THE ACCUSED STAKIC: [Interpretation] Thank you.

2 JUDGE SCHOMBURG: First of all, I have to inform all participants

3 that we need to have a break at 3.00. The Judges will be sworn in. This

4 is just Judge Fassi Fihri, assigned to this case, and Judge Per Lindholm

5 from Finland who arrived yesterday in the Simic case, and therefore I

6 think it's really necessary to be there. We will have a break for 20 to

7 30 minutes from then on, from 3.00. Thank you.

8 As you have seen from all the documents, and even from the

9 newspapers, finally this Tribunal succeeded in obtaining the necessary

10 budget that this case can be started; that there is the possibility of

11 the Office of the Prosecutor to present the case, and the possibility for

12 the accused and the Defence to prepare the Defence case and to be heard in

13 due time. And I am grateful knowing very well all the problems we are

14 facing, the OTP, the Defence, and the Trial Chamber itself, that we really

15 can start this case now next Tuesday, and then that we can have this

16 Pre-Trial Conference today.

17 You have received the scheduling order stating all the envisaged

18 courtroom days as from next Tuesday to August 2. I would appreciate if

19 there is any obstacle for anybody present, to tell it immediately. And if

20 there would be a new obstacle in future, please tell it in advance, so

21 that the Office of the Prosecutor and the Registry can take care,

22 especially when it's a question of incoming witnesses.

23 Are there any obstacles for the OTP? I know it's difficult having

24 Brdjanin and Talic running and Stakic running at the same time, sometimes

25 in the morning, some times parallelly, and sometimes morning and evening.

Page 1523

1 MS. KORNER: Well, Your Honour, it would obviously be preferable

2 from our point of view if this case could run in the morning and Brdjanin

3 and Talic in the afternoon, but I haven't looked at the two. I know for

4 most of the time, the two cases are actually running at the same time.

5 Any problem which may arise at the moment is that next Tuesday, Your

6 Honour will be expecting me to open the case; in addition, there is a

7 witness which I have to call in the Brdjanin/Talic case, and it may be

8 that that Trial Chamber will be inconvenienced as a result. Other than

9 that, Your Honour, what I can say is Your Honour knows that we are anxious

10 to try and combine the witnesses here with the Brdjanin/Talic case, and on

11 the trial schedule that Your Honours set out, and the one in the

12 Brdjanin/Talic case at the moment, there's no meeting. That's all I can

13 say.

14 JUDGE SCHOMBURG: Of course, the Trial Chamber is aware of these

15 problems, and I can tell you that in the [indiscernible], this had been

16 part of a strong and in depth debate, but we have to take into account

17 also the problems of other cases. Normally the case of Galic is heard in

18 this room, and at the end of the day, we didn't find any other comprise,

19 and it's a comprise we have now in all the six Trial Chambers, and the

20 interests of the Office of the Prosecutor, the Defence counsel, and so on,

21 therefore I can tell you that there will, indeed, be a kind of flexibility

22 in both cases when it's really necessary. The question of the hearing of

23 parallel witnesses to be heard in Brdjanin/Talic and in Stakic, this

24 should be discussed later this day, because I think it's a real crucial

25 point. Only the question whether or not there were obstacles as regards

Page 1524

1 to concrete dates until the 3rd of August. There are no general remarks

2 from your side, please.

3 MR. LUKIC: Your Honour, no obstacles on the Defence side, so we

4 are ready to proceed as scheduled, for now.

5 JUDGE SCHOMBURG: Then I have first of all a general question to

6 the Defence. And of course, also, to the accused. We have two counsel in

7 this case, you, Mr. Branko Lukic, and Mr. Zdravko Ostojic. As I

8 understand, Mr. Ostojic will arrive next week.

9 MR. LUKIC: Yes, Your Honour, Mr. Ostojic will be here in

10 Den Haag on the 15th of April.

11 JUDGE SCHOMBURG: That bad experience of last week brings me to

12 put the question forward to you: Are you prepared to be the only Defence

13 counsel in case Mr. Ostojic will not be present?

14 MR. LUKIC: I am prepared; but hopefully, he will be here. I

15 don't have any news that he is going to quit this case.

16 JUDGE SCHOMBURG: And would it be also -- is there your consent

17 that in case, for unforeseen reasons, you, yourself, are not available,

18 that Mr. Ostojic substitutes you for this period of time? We'll say that

19 Mr. Ostojic alone is representing the Defence team?

20 MR. LUKIC: Yes, of course, Your Honour.

21 JUDGE SCHOMBURG: Would you please be so kind and ask Mr. Ostojic

22 to provide me with the same information in writing until the 16th of

23 April, that he is prepared --

24 MR. LUKIC: Yes, I will, Your Honour.

25 JUDGE SCHOMBURG: -- to take over the role of the Defence alone?

Page 1525

1 MR. LUKIC: Yes, I would.

2 JUDGE SCHOMBURG: I have, of course, to ask Mr. Stakic.

3 Dr. Stakic, do you agree that in the case of the absence of one Defence

4 counsel, only one Defence counsel is present?

5 THE ACCUSED STAKIC: [Interpretation] Your Honour, I haven't

6 consulted my Defence about this, but I believe that if the time in

7 question is short, like a day or two, that could be acceptable. But

8 please allow me some time, until the 15th or the 16th, to consult my

9 Defence.

10 JUDGE SCHOMBURG: Would it be possible for you to discuss this

11 question in short with your Defence counsel during the next break, after

12 3.00?

13 THE ACCUSED STAKIC: [Interpretation] I think I can do that, and I

14 will have a position to present to you after the break.

15 JUDGE SCHOMBURG: Thank you. I'll come back to you, and you may

16 be seated.

17 As regards now, the agenda of today, I will propose the

18 following: That we start first with bits and pieces related to the

19 indictment. Once again, that we then go on to the question of the

20 witnesses, the question of depositions, admission of evidence and

21 identification. Then, other, as it was said, related matters, the right

22 of the accused to be heard. Then matters not in dispute; the question of

23 contested matters of fact and law; the question of tendering of exhibits;

24 whether or not there should be a time limit for cross-examination; issues

25 on protective measures; some questions related to translations; the

Page 1526

1 opening of the trial. We'll say the first days from Tuesday to Friday,

2 next week, and then to touch upon outstanding motions.

3 Are there any other general issues you mentioned you want to raise

4 today? Any other issues? Or are you satisfied?

5 MS. KORNER: There is -- I'm just wondering whether Your Honour

6 was going to open the case from Tuesday to Friday.

7 I'm sorry, I'll say it again. Your Honour says the first days,

8 from Tuesday to Friday, the opening of the trial, I don't think it's going

9 to take me four days to open this trial.

10 JUDGE SCHOMBURG: In a broader sense.

11 MS. KORNER: Your Honour, I say for one, which relates to

12 numbering of exhibits in advance, for a reason I'll explain to Your Honour

13 when we get to it.


15 MS. KORNER: And I'm sorry, the question of Dr. Donia.

16 JUDGE SCHOMBURG: Which, of course, will be included, no doubt.

17 MS. KORNER: All right.

18 JUDGE SCHOMBURG: From the side of the Defence team, anything

19 else?

20 MR. LUKIC: Your Honour, we had a pretty constructive meeting

21 yesterday with the senior legal officer, and we, I think, clarified a lot

22 of things. So I have nothing new for today.

23 JUDGE SCHOMBURG: Thank you. Then we can start with point number

24 1, the amended indictment, which of course has to be read together with

25 the Pre-Trial brief, together with the list of witnesses, together with

Page 1527

1 the summary of witnesses, together with the charter of proof provided by

2 the Office of the Prosecutor. I think numerous problems will be resolved

3 when we read the entire package together.

4 Before I come to the still-pending motion objecting to the form of

5 the indictment, I want to raise ex officio some tiny points. It was

6 already discussed yesterday that in paragraph 56, the counts 6 -- 7 and 8

7 have to be substituted by 10 and 11. It was agreed. And I think it was

8 also agreed that there would be a new attachment of the list of the names

9 of the victims as it was before.

10 MS. KORNER: Your Honour, first of all, can I formally apply in

11 respect of -- rather than bringing this by written motion, to amend

12 paragraph 56 to read, instead of counts 10 and 11, 7 and 8. In addition

13 to that, if Your Honour looks at paragraph 54 -- sorry, paragraph 54 [3],

14 yes, and then little numbers, we went in the listing of the religious

15 institutions. We went from 9 through to 12. We would like to amend so

16 that it reads "9, 10, and 11."

17 JUDGE SCHOMBURG: Sorry. Could you please repeat. You said in 54

18 [3].

19 MS. KORNER: Yes, if you look at page 18.


21 MS. KORNER: You'll see there's a list of the various Catholic

22 churches, mosques, et cetera. I don't know what went wrong. But you'll

23 see we go 7, 8, 9, then 12, 13. We should be going "9, 10, 11." So I

24 would like to formally apply to amend that as well. I'm going to produce

25 a new typed version.

Page 1528

1 Your Honour, in respect of the schedule of victims, we've got it.

2 We'll put it in. But Your Honour, I'm not very happy about it. I know

3 Judge Rodrigues ordered it. But if we start listing people who we say

4 were killed, we're going to get into all sorts of problems. We can prove

5 that numbers 1, 9, 10, and 11 were killed. I'm simply asking, Your

6 Honour, whether it's necessary. We're going to be leading evidence of

7 people being killed. Is there any real necessity for it to be listed in a

8 schedule like this? We did actually leave it out deliberately.

9 JUDGE SCHOMBURG: Yes. I understand, but if I see the

10 jurisprudence of this Tribunal until now correctly, there are admittedly

11 different approaches. But I really think it's preferable to have this

12 list. And I know about the problems linked to this, but when balancing

13 is -- I can tell you whatever I discuss today, this has already been

14 discussed with the new ad litem Judges which will form the Bench. To make

15 it quite clear, we have, of course, the problem under the Statute and

16 under the Rules as it stands now, that until next Tuesday, all decisions

17 have to be taken by the permanent Judges. But it's, of course, relevant

18 for the incoming ad litem Judges. We have to work together for the next

19 month on this case. And therefore, I discussed it in advance with these

20 Judges. There is an amendment pending that also the ad litem Judges are

21 allowed to participate in Pre-Trial work in future, but unfortunately it

22 is not yet applicable, and therefore I discussed these issues in advance.

23 And we came to the conclusion that it would be preferable to have this

24 list.

25 MS. KORNER: Your Honour, and may I say I don't feel very strongly

Page 1529

1 about it, but this is one of the cases referred to by Judge Hunt,

2 because effectively we have rewritten the jurisprudence on this matter.

3 But it's not suggested that this defendant, accused, is responsible for

4 any of these killings, and I think there's a difference between an

5 allegation made against an accused who is directly responsible for the

6 killings, and someone who is in a position of authority. And we say as

7 such, is responsible. My only concern is, if this schedule is attached to

8 and forms part of the indictment, for some reason or another, we don't

9 prove that, for example, the first named -- let's take, for example, a

10 long list of people, taken from the Keraterm and Omarska camps. We are

11 not intending, because we want to keep this trial within manageable

12 proportions to call every single witness who could prove that each and

13 every one of these people were killed. So in the end, if this becomes

14 part of the indictment, we're going to have to strike names through

15 possibly.

16 But Your Honour, I don't feel that strongly about it. Just as a

17 matter of principle, whether it's actually necessary. And Your Honour and

18 Your Honour's colleagues discussed it, feel it is, that's fine. Thank

19 you.

20 JUDGE SCHOMBURG: I think it would be helpful. We know your

21 problem, but we believe that it can be resolved during trial should there

22 be any obstacle of the nature you just mentioned.

23 One serious concern is Count 1 and 2 as they stand now. In

24 paragraph 51, you plead "Count 1, genocide," then going on, "and/or, Count

25 2, complicity in genocide." It is my understanding that it is

Page 1530

1 impossible to commit genocide and complicity in genocide. Therefore, not

2 only in my mine, but in our point of view, it would be preferable to plead

3 as it was done in other cases in the last month, to plead Count 1 (a),

4 genocide, or alternatively, Count 1 (b) complicity in genocide. I would

5 be more than happy if you could agree with this language.

6 MS. KORNER: I think that as a matter of law, I don't see how you

7 can be both guilty of genocide and complicity, but there is a certain

8 amount of discussion because of the wide-ranging nature of these events.

9 And I think most of the indictments that I'm aware of have pleaded it as

10 "and/or."

11 JUDGE SCHOMBURG: Newest version, I'm afraid it's in the last time

12 in this year, the new indictments are always pleaded "or alternatively,"

13 and then 1 (a), 1 (b).

14 MS. KORNER: I'm sorry, they are different offences. It would be

15 Count 1 or Count 2.

16 JUDGE SCHOMBURG: Yes, or even to make it quite clear, it was done

17 in the last indictment, to say "1 (a)," or "1 (ii)," not to give the wrong

18 impression that there would be two different counts at the end of the day.

19 There could really be two charges and two decisions on both unparallely or

20 communitively.

21 MS. KORNER: Yes. In that case, I think there is some merit in

22 Your Honour's suggestion because in fact, Counts 3, 4, and 5 are

23 either -- they are "and/or" if you see what I mean. You could be guilty

24 of genocide plus the rest, and then sentenced. So Your Honour would it

25 like it to be Count 1 (a) genocide or Count 1 (b) complicity.

Page 1531

1 JUDGE SCHOMBURG: Or alternatively, Count 1 (b), complicity and

2 genocide.

3 MS. KORNER: We can do that. But it will throw out the Pre-Trial

4 brief numbering, if Your Honour sees that.

5 JUDGE SCHOMBURG: We will apply the Pre-Trial brief

6 correspondingly.

7 MS. KORNER: Thank you.

8 JUDGE SCHOMBURG: Another point is coming to paragraph 46, I

9 believe it is. Here you have -- you quote a certain number of camps. In

10 the former indictment, there were only three camps. Just for the purposes

11 of clarification, it should be pointed out whether or not there are now

12 additional camps, and I want to make reference to your Pre-Trial brief

13 under paragraph 56. You want again, the three camps that were included in

14 the former indictment, and "Keraterm, Omarska, Trnopolje," and as it is

15 the language there "other camps." So could you please grant us a little

16 bit of clarification.

17 Do you intend to say under, of course, one and the same charge.

18 No doubt about this, we have to take into account and to include also

19 other camps?

20 MS. KORNER: Your Honour, the major camps are obviously Keraterm,

21 Omarska, and Trnopolje. But when we reread this, we realised that

22 witnesses were going to be talking about other, more transitory camps, if

23 one likes to put it -- less permanent. So we thought it only right to

24 list them in the indictment. When the Pre-Trial brief was looked at, we

25 didn't bother to do it. But our view was that in amending this

Page 1532

1 indictment, we should give as much information as we could. And we will

2 be calling evidence from people about incarceration in these other three

3 places.

4 JUDGE SCHOMBURG: So I understand you correctly that your

5 intention is to say that other camps, in paragraph 56 of the Pre-Trial

6 brief, these are those under 46. There the notion of "camp" is not used,

7 but Prijedor, JNA barracks, Miska Glava community centre, and SUP building

8 in Prijedor.

9 MS. KORNER: Yes, exactly.

10 JUDGE SCHOMBURG: Under the term of "camp," we understand this.

11 MS. KORNER: Yes.

12 JUDGE SCHOMBURG: This is also clear for you?

13 Thank you, for this clarification.

14 I'll come back to this point immediately after the break. And if

15 you could be so kind to discuss the question of the Defence with your

16 client right now, then I think we should try to restart within 20

17 minutes.

18 MS. KORNER: Yes, Your Honour. Simply having dealt with the

19 amendments we've applied for, and the one that Your Honour has ordered to,

20 in other words to attach the schedule, is Your Honour granting them?


22 MS. KORNER: I don't think Your Honour said that.

23 JUDGE SCHOMBURG: No. Quite clear.

24 Okay, thank you.

25 --- Recess taken at 2.59 p.m.

Page 1533












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 1534

1 --- On resuming at 3.25 p.m.

2 JUDGE SCHOMBURG: Thank you once again for giving us the

3 possibility to participate in the solemn declaration of the three new ad

4 litem Judges. One step further to the beginning of our trial.

5 We discussed and had the necessary clarification on paragraph 46

6 as regards the notion of camps. And then also for clarification purposes

7 on the same charges, there is a new location added, Ljubija football

8 stadium. Is it correct?

9 MS. KORNER: I'm sorry. Could Your Honour just --

10 JUDGE SCHOMBURG: Paragraph 46, we discussed right now. And in

11 paragraph 49, there is a new location, the Ljubija football stadium.

12 MS. KORNER: Yes, yeah. That's right.

13 JUDGE SCHOMBURG: And then, in addition, if we could have a look

14 together on paragraph 44, the former 45, now we have not number of man as

15 it was before, but number of people. Evidently, it is your intention to

16 include -- and it of course makes sense in the entire context -- to

17 include men, women, children. That was your point?

18 MS. KORNER: Exactly, Your Honour. Yes.

19 JUDGE SCHOMBURG: And then you added the village of Biscani and

20 surrounding areas. Is there any possibility to have a little bit of

21 clarifications what you regard as "surrounding areas of Biscani"?

22 MS. KORNER: I mean, not with a complete map coordination, no, but

23 it means that some of the people were killed not in the actual village

24 itself, but in the outlying fields and the like. I mean we're talking

25 within the radius, and we'll make it clear --

Page 1535


2 MS. KORNER: There will be maps which will show what the various

3 areas are.

4 JUDGE SCHOMBURG: Then we may probably come to the last point of

5 concern. Of course, it's also for the Defence to come with one or another

6 point. But in paragraph 27, the former paragraph 20, apparently there is

7 an exchange of dates. In the former version, under paragraph 20 [A], it

8 was alleged that the crime was committed prior to the declaration of the

9 assembly of 17 January, 1992. And then, going on, "the enterprise existed

10 at least until 30 September, 1992." Now, we can read that the starting

11 point is 24 October, and this needs some declaration, "this joint criminal

12 enterprise continued throughout the period of the conflict in

13 Bosnia-Herzegovina until the signing of the Dayton accords in 1995."

14 Here, for me, it seems to be, yes, a significant change of the period of

15 time.

16 MS. KORNER: Your Honour, this case is a smaller part of the

17 Brdjanin/Talic and Krajisnik/Plavsic and eventually the Milosevic case.

18 There is the joint enterprise, we say, throughout, that the whole period,

19 from the evidence, began not later than the 1st assembly of the Serbian

20 people, which was in October, and continued through until the end of the

21 conflict enforced upon the participants by the Dayton accords. We're not

22 suggesting that Stakic's part in it is any greater in the original

23 indictment, but the enterprise we say is one enterprise, and that is the

24 reason why it is now -- it's the same in all of the indictments. That's

25 the period. Stakic played his part in that enterprise. We're looking for

Page 1536

1 consistency, and that's the reason.

2 JUDGE SCHOMBURG: I understand that you regard the time frame for

3 the entire alleged joint criminal enterprise as from October 1991 until

4 1995. Not to be misunderstood, is it alleged that Dr. Stakic himself

5 participated in the entire joint criminal enterprises during the entire

6 time, or is it possible for the Office of the Prosecutor to limit within

7 these dates, October 1991, Dayton 1995, the period of time where it's the

8 alleged responsibility of Dr. Stakic?

9 MS. KORNER: Your Honour, it is. That's a matter of evidence as

10 opposed to pleading. Your Honour, we're alleging his participation in a

11 single joint enterprise. So that's what's pleaded in the indictment.

12 We're not for one moment suggesting that up until the Dayton accords

13 Dr. Stakic was playing a part in it. I can't now without looking at the

14 dates look at when he was no longer in power. But clearly, when he was no

15 longer in power, he had no ability to do anything within the joint

16 enterprise.

17 JUDGE SCHOMBURG: Of course, one has to balance the interests I

18 hear of the Office of the Prosecutor and the Defence, and to be honest, I

19 wouldn't regard it as a question of evidence only; it's a question for

20 which period of time the accused is held responsible, and to prepare his

21 own Defence, I believe it's necessary --

22 MS. KORNER: I'm sorry to interrupt. If Your Honour looks at the

23 counts, Your Honour will see the period. That's the period. That's the

24 period for which we're holding him liable, so between the 30th of April,

25 1992, and the 30th of September, 1992. That's in the counts itself.

Page 1537

1 JUDGE SCHOMBURG: I appreciate very much this clarification, and

2 probably it helps also for the Defence a better understanding of what was

3 said in the motion objecting the form of this third indictment. And I

4 think from the side of the Office of the Prosecutor we have all the

5 necessary clarifications. And it's now to turn to the Defence counsel. I

6 can guarantee you that we extremely carefully read your contributions on

7 the question of the form of this third indictment. And of course, we are

8 prepared to make a clear and precise decision on this issue.

9 But when it comes to the merits of your contribution, I believe

10 most clarifications have been given, especially now that on the time

11 limit, what you pointed out correctly in your motion. But to be honest

12 also in your direction, until now we have at least the feeling that most

13 of your other contributions are more ones related really to questions of

14 evidence, of the evaluation. And my direct question is now: When you

15 have heard these clarifications, wouldn't it be in the interest of justice

16 and the expeditious proceedings appropriate for you to withdraw your

17 motion?

18 MR. LUKIC: Your Honour, I was told yesterday on the meeting that

19 you cannot decide on this motion by yourself, that you have to wait to

20 decide with two other ad litem Judges.


22 MR. LUKIC: And I have to admit that I was caught by surprise by

23 this question.

24 JUDGE SCHOMBURG: Probably you can rethink we will have a break.

25 But you can -- as I mentioned before, you can take it really as granted

Page 1538

1 that it was already discussed, of course no decision was made until now.

2 But it was discussed, and this -- the points we mentioned -- I mentioned

3 until now were the points that we found there were some merits in your

4 contribution and they needed clarification. But personally I believe we

5 have got this clarification now, and I can't expect an immediate answer.

6 Probably after the next break.

7 MR. LUKIC: Okay, then just give me time until next break.

8 JUDGE SCHOMBURG: Okay. Thank you, an apropos break. Was it

9 possible for you, Dr. Stakic, to discuss with your Defence counsel the

10 question whether or not you are prepared to consent, that in the absence

11 of the one or the other Defence counsel, we can continue with one Defence

12 counsel alone?

13 THE ACCUSED STAKIC: [Interpretation] Yes, Your Honour. I had time

14 to consult my counsel, and I agree with this proposal given by my Defence

15 counsel which would allow just one of the Defence counsel to be present

16 during trial if we are talking about a short period of time.

17 JUDGE SCHOMBURG: Thank you for this clarification.

18 We may now turn to the question of witnesses. There is first of

19 all the question, the status of each witness. We'll say viva voce

20 witnesses, 92 bis witnesses, deposition to be taken, videolink to be

21 used. As to the fact that these witnesses have been put down at various

22 stages as different times as witnesses, I would regard it as rather

23 helpful if we just could go through the list of witnesses. I believe the

24 last entire list of witnesses was one in your motion of 28 March. It was

25 a decision of 28 March, and your list was from 14 of March, 2002, where we

Page 1539

1 start with Witness Number 1 as a 92 bis witness. If you please, I don't

2 want to mention the names. If you could yourself.

3 MS. KORNER: Your Honour, I'm sorry. I haven't at the moment got

4 a copy. I didn't know that Your Honour was going to go through the list,

5 so I'm afraid I didn't bring it.

6 JUDGE SCHOMBURG: Would it be possible later on this afternoon to

7 go through this list?

8 MS. KORNER: If Your Honour would put this off until after the

9 next break, and I'll get the list then.


11 Then what about the list of the first ten witnesses in trial?

12 MS. KORNER: Your Honour, we've today filed confidentially and

13 provided to Mr. Lukic this afternoon a copy of the first ten -- the names

14 of the first ten witnesses. We can hand Your Honour a copy now, but it

15 has been filed.

16 JUDGE SCHOMBURG: If you could. You have got the list,

17 Mr. Lukic?

18 MR. LUKIC: [No microphone]


20 Is it agreed between the parties that the Office of the Prosecutor

21 will provide the Defence and the Chamber with a list of the coming

22 witnesses one week in advance?

23 MS. KORNER: We're perfectly prepared to do that, Your Honour.

24 JUDGE SCHOMBURG: Yesterday, as I understood it correctly, it was

25 not quite clear whether or not there should be a provisional, emphasise,

Page 1540

1 provisional, list of all witnesses in the order envisaged by the OTP at

2 this stage before we enter trial. I know there are numerous ifs and buts,

3 deposition, 92 bis, but it would be really helpful for us if we could have

4 such a provisional list.

5 MS. KORNER: The difficulty, Your Honour, is this: That because

6 of the overlap between this case and the Brdjanin/Talic case, not in the

7 sense of the witnesses but lawyers, it's sometimes quite difficult to work

8 out, because certain lawyers have to call certain witnesses in advance who

9 is going to be doing what, and that's why we prefer not to do this quite

10 honestly. It isn't so much the fact that we know roughly which way we

11 want to run it, but it may be because of the lawyer crossover there's a

12 problem. We hope that simply giving Your Honours advance notice of a week

13 would be sufficient.

14 JUDGE SCHOMBURG: Probably later on when we have hopefully some

15 solution on the motion on depositions, we can more clearly proceed and

16 find out what is realistic. I will come back later when the trial has

17 started to this point.

18 Then we still expected the two additional binders of witness

19 statements. It was said that this would be delivered until today to the

20 Chambers.

21 MS. KORNER: Your Honour, it's going to be handed out either after

22 the conference today or tomorrow morning.

23 JUDGE SCHOMBURG: We'll rely on this. Okay?

24 MS. KORNER: After today, I'm told.

25 JUDGE SCHOMBURG: Let us now turn to one of the most crucial

Page 1541

1 issues of this case, and this is, of course, a question how to resolve the

2 problem of witnesses being witnesses, viva voce witnesses, apparently, in

3 both cases Brdjanin/Talic and Stakic.

4 MR. LUKIC: Excuse me, Your Honour. Excuse me for interrupting

5 you. I just have one issue regarding this list of ten first witnesses, so

6 I plea to go back.

7 JUDGE SCHOMBURG: Please. Take the floor, please, yeah.

8 MR. LUKIC: I'm trying together with the Prosecution office to

9 solve the problem of the first witness, expert witness, Dr. Donia.

10 JUDGE SCHOMBURG: May I now myself interrupt you. Of course, I

11 will come back to Dr. Donia later this afternoon when we come to the

12 programme of the first four days, the start of the trial in a broader

13 sense.

14 MR. LUKIC: Okay. Sorry, then.

15 JUDGE SCHOMBURG: No, no problem.

16 Now, the most crucial problem is, of course, that we have

17 apparently ten witnesses parallel in both cases, Brdjanin/Talic and

18 Stakic. If I understood it correctly, the position should be taken --

19 this is a request by the OTP until now -- eight witnesses' depositions

20 should be taken by a Judge in The Hague for the purposes to use these

21 depositions in both cases. Two additional witnesses should be heard on

22 the basis of the deposition via videolink. I think we should first

23 discuss the question of the eight witnesses on deposition as requested to

24 be heard by a Judge.

25 I think at the present time, we shouldn't think back annoyed about

Page 1542

1 the development the cases have taken since 1997 or 1999. I would invite

2 all the parties to look just in the future and to come to solutions of the

3 future. We all were involved in difficult discussions how to resolve the

4 problem, how in the best way, how to avoid that witnesses have to come

5 twice or even more times when it comes later to other cases where these

6 witness statements are necessary. And to a certain extent, I regard

7 this also as my responsibility having been in the past in favour of a

8 solution of depositions. When I have a look on your proposed list of

9 depositions, and asking first of all to have this deposition taken before

10 the start of this trial, I ask myself whether it is really helpful to go

11 through this very, very difficult procedure in both cases. I had an

12 extensive discussion with my colleague Judge Agius presiding over the

13 Brdjanin/Talic case, and we regarded and identified unfortunately more

14 obstacles than solutions. And therefore, it's also a pity for me. I

15 myself came to the conclusion whether it wouldn't be better, at least to

16 try to have the both cases concurrently to that extent, that we at least

17 avoid that the witnesses appear twice in The Hague for the purposes of

18 both cases. Wouldn't there be a possibility, and this is my question to

19 the Office of the Prosecutor, wouldn't there be the possibility to go on

20 the adequate pace, put it this way, in this case, forward to the hearing

21 of these witnesses, and at the same time start the hearing in Prijedor or

22 on Prijedor in Brdjanin/Talic?

23 MS. KORNER: Your Honour, this matter was discussed yesterday with

24 Your Honour's senior legal officer. The difficulty has been or is in the

25 Brdjanin/Talic case this: First, the witnesses for Sanski Most have

Page 1543

1 already been warned and are due to arrive. The Victim and Witness Unit is

2 already unhappy about changes that had to be made because of the length of

3 time that things were taking.

4 The second matter is this: That the Defence who have been

5 preparing for Sanski Most and not Prijedor. And the third is that they

6 haven't yet had, although they have had complete disclosure of the

7 Prijedor documents, but the proposed list of documents that will be used

8 in that case, for the Prijedor. Now, I agree with Your Honour; it seems

9 to me that for various reasons with the exception of the two people that

10 we listed by videolink, and they have sufficient reasons, medical

11 problems, why they aren't going to be in The Hague, and my colleague I

12 hope he's going to raise it this afternoon in front of Judge Agius, that

13 there should be a meeting between both cases, that is the Judges or

14 counsel, to see how best we can organise this. As Your Honour rightly

15 points out, it's not only that some witnesses will have to attend for both

16 cases, but also other cases in the future. And one witness in particular

17 has already attended three times. He has given evidence in three earlier

18 cases.

19 I would hope that we could find a convenient time where all

20 parties could meet and discuss the best way of proceeding. But I tend to

21 agree with Your Honour. I have to say and I know there's opposition from

22 Mr. Lukic, there's opposition from both Defence counsel in the

23 Brdjanin/Talic case, to the idea of joint depositions. And so it really

24 is a question of how best to now coincide with the witnesses.

25 JUDGE SCHOMBURG: Until now, as I mentioned, we had already some

Page 1544

1 discussions between the Judges in both cases, and of course we have not

2 only to face -- I don't want to call it the problem, but the

3 objections of Defence counsel to this idea of taking depositions. But

4 also, additionally, there is a right of the Judges to put questions, and

5 this can't be resolved by the way of depositions. So the Defence counsel

6 can be, of course, present; they all can be present. But when I think

7 about the entire apparatus to start, to start with now having a joint

8 meeting of all the Judges and all the Defence counsels together, knowing

9 very well that there will be objections, there will be also interests of

10 justice to have the most important witnesses viva voce, and it's a good

11 right not only to hear about the witness, but also to see the body

12 language, to have certain contact vis-a-vis these witnesses. So

13 therefore, we discussed this question already, and we came to the

14 conclusion that it is not helpful to start this experiment save you give

15 us, and this was our conclusion, additional good cause why it is really

16 necessary in the one or the other case to have a deposition as regards the

17 testimony of an individual witness.

18 Otherwise, we really, and here I speak also on behalf of Judge

19 Agius, we would invite the Office of the Prosecutor to try -- probably you

20 can postpone, and therefore I didn't insist that you give us now already

21 the list of the envisaged order of appearance of the witnesses, that

22 probably at a later point in time as planned, you can call the witnesses

23 for Stakic, and then it could probably be prepared also for

24 Brdjanin/Talic.

25 MS. KORNER: The difficulty, Your Honour, is this: If, for

Page 1545

1 example, you look at the list. I'll just find it myself. When, in fact,

2 yes, not so much the list of suggested depositions but the list of

3 proposed witnesses in the Stakic case, the first two witnesses, the one

4 we've just given, Your Honour. Sorry. The confidential one. Other than

5 Dr. Donia, the first two witnesses are both important ones for the

6 Brdjanin/Talic case. They are both what you might call general policy

7 witnesses. They are not just victims of crime. They are due to come --

8 effectively we start next week, so the week after that. At that stage, we

9 have in the Brdjanin/Talic case an important witness for Sanski Most. And

10 that's the difficulty. That's why I was suggesting that -- the trouble is

11 I say one thing in this case, and then Mr. Cayley or I go and say the

12 other thing in the Brdjanin case, and never the two meet. I know that

13 Your Honour discusses matters with Judge Agius. I know Mr. Lukic knows

14 Mr. Akerman. But we need to try and get together and try and see how we

15 can deal with this.

16 JUDGE SCHOMBURG: Isn't it true that the same obstacle you

17 correctly mentioned before, that some witnesses can't be heard already now

18 in Brdjanin/Talic because the disclosure is not ripe for all this, and the

19 Defence is not prepared, that this indeed would be true in case we take

20 depositions, and then of course the Defence counsel in Brdjanin/Talic

21 would argue, we need, first of all, the supporting material in order to be

22 prepared for the cross-examination. And therefore, they would request the

23 depositions made only at a later point in time. And therefore, I can't

24 see the added value of depositions to that extent.

25 MS. KORNER: I absolutely agree. Your Honour, I'm not pursuing

Page 1546












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Page 1547

1 this. I mean, it's a dead -- dead in the water, I think.


3 MS. KORNER: Unfortunately. My concern is because of Stakic

4 starting now, or next week, and because we're in the situation we are with

5 the Brdjanin/Talic case, unless we can delay this case - and I know Your

6 Honour took the view that we have to start; I accept that - but the fact

7 is that the Defence and Prosecution would be content for this case, even

8 if we open it and call a couple of witnesses that we don't want in

9 Brdjanin/Talic to be delayed. I know, Your Honour, I'm sorry. It isn't

10 just us being difficult. That is the real situation, that unless we can

11 delay this case until at least closer to the time that we're going to get

12 to the Prijedor evidence in Brdjanin/Talic, these witnesses are going to

13 have to come give evidence here, and go away again and come back again,

14 because the Defence in the Brdjanin/Talic aren't expecting this.

15 JUDGE SCHOMBURG: Right. And I only at this point in time, I can

16 tell you that the intention is of both Trial Chambers to hear, if

17 possible, from your point of view separately in both cases, and it would

18 be up to you to provide the necessary -- yes, enabling the witnesses to be

19 only once here and being heard in those cases on the occasion of this one

20 visit to The Hague. I speak now only about the eight witnesses. And I

21 think it should be rethought by the Office of the Prosecutor whether or

22 not it could be possible, and in addition to provide us with a time frame

23 when you could start hearing the eight witnesses mentioned in this motion

24 on depositions. So I don't believe that we can come to a conclusion on

25 this issue today. But as you know, we have to start, and we have to

Page 1548

1 proceed as soon as possible. And in addition, we have the rights of the

2 Defence. We have to take into account the interests of all the Judges to

3 have the possibility to put their own questions, and therefore it's only

4 an appeal from my side to try whatever you can to come as close as

5 possible in both cases.

6 MS. KORNER: Your Honour, I think I should point out to Your

7 Honour that these eight witnesses were selected because they were not

8 vital for either case. I mean, they are important, but they don't

9 specifically affect directly the accused. In a sense, they are less

10 important. What's important, the real problem is arising, of the

11 witnesses who were clearly important to both cases, like numbers 2 and 3

12 on that list, who we felt should be heard by both Trial Chambers, both

13 sets of Judges should see them. These, the ten witnesses selected there,

14 were the ones that it was felt that it wouldn't affect either trial

15 dramatically if the Judges themselves didn't see the witnesses in the

16 flesh. But the real serious problem, which is insoluble, save for some

17 kind of delay in this case, are these major witnesses who are effectively

18 as important for the Stakic case and the Brdjanin/Talic.

19 JUDGE SCHOMBURG: Okay. As mentioned, we have to revisit this

20 point later on. And it's now only the question of the two witnesses as

21 requested to be heard via videolink.

22 MS. KORNER: Yes.

23 JUDGE SCHOMBURG: I understand there are real health problems, and

24 good cause is shown or seems to be shown indeed. But my question is,

25 where is here the added value when we would have both witnesses with a

Page 1549

1 videolink in both cases separately? We have to provide also here for the

2 possibility of cross-examination. And wouldn't it be easier to invite

3 these people staying in Banja Luka to be there with the technical

4 equipment in order to provide as was their statement via videolink, or

5 here indeed, another solution could be, to provide depositions prepared by

6 senior legal officer, or by a judge interrogating these witnesses in Banja

7 Luka? Not today, but probably in the next week or later, we should

8 discuss it, whether -- and I was hesitant -- if these two witnesses are

9 not of that importance for the Office of the Prosecutor, to have the added

10 value of a deposition taken in Banja Luka by a senior legal officer or by

11 a judge.

12 Just to revisit this point.

13 MS. KORNER: Yes, when I say not of value, Your Honour, they are

14 of value.


16 MS. KORNER: But it's simply that, for example, number 3 on the

17 proposed deposition list, you know, is one -- he's unique in one sense. I

18 don't want to go into details because we're in open session. But he is

19 one of the -- the only witness we have of a particular character, and he

20 was thought suitable for deposition only in the sense that he didn't

21 directly implicate any of the accused, but his evidence is very

22 important. The difficulty if Your Honour says senior legal officer or

23 judge goes down and takes a deposition, the Defence will want to

24 cross-examine.

25 JUDGE SCHOMBURG: Yes. Of course. Here in these cases, we have

Page 1550

1 to be inventive and innovative, and yes, why not have the Defence counsel

2 in Banja Luka? It would be an easy exercise for you, and having them

3 cross-examined there.

4 MS. KORNER: I'm sorry, I thought Your Honour just meant that

5 there would be a straight deposition taken by the senior legal officer. I

6 don't think whether it matters or senior legal officer --

7 JUDGE SCHOMBURG: I think the point the cross-examination could be

8 done as well on the deposition that would be taken in Banja Luka. This is

9 just an idea how we could resolve the problem because I had the impression

10 that these two witnesses are indeed crucial ones.

11 MS. KORNER: They are certainly important.


13 MS. KORNER: Yes.

14 JUDGE SCHOMBURG: And therefore I would invite you to rethink

15 whether or not there isn't superior probative value when we would have a

16 deposition taken, for example, in Banja Luka, and there having the

17 cross-examination of these two witnesses.

18 MS. KORNER: In respect of --

19 JUDGE SCHOMBURG: It can't be resolved today I'm quite sure, but

20 we have to consider all the possibilities.

21 MS. KORNER: Absolutely. But the innovative suggestions that have

22 been made don't seem to be meeting with much favour with anybody in this

23 place. Witness Number 3 is somebody we would certainly wish Your Honours

24 to see personally, and that's... On Witness number 7, it's less

25 important, but on Witness Number 3, it would be important.

Page 1551

1 JUDGE SCHOMBURG: If you go to the library and find out what the

2 superior probative value is, videolink witness be heard and seen by all

3 the Judges of the Bench, or to have at least one Judge and the Defence

4 counsel and a representative of the OTP present close to this witness, and

5 have the personal impression, once again, the question of body language,

6 this can never be transported by the means of videolink even if it's of

7 extreme good quality. But there is really a discussion, and I regard it

8 now as a majority in the opinion of our learned friends that the better

9 way to have these witnesses is when they are heard by deposition instead

10 of this poor and weak videolink version.

11 I don't believe that you really succeed in that what you want to

12 give us the real, the live impression, of this witness via videolink.

13 There, the experiences of the past, even though there were extremely good

14 conditions, they were rather poor. So therefore, this should be resolved,

15 and of course we come back to this point. But in principle, the solution

16 of Judge Agius and mine was to ask you to find, if possible, a solution

17 bringing us a separate hearing of the witnesses, if possible, and probably

18 we can make once again is the distinction in the list of the ten when we

19 go through witness by witness. But this shouldn't be done today. This

20 should be done only when we have the entire Bench here present.

21 Therefore, I would invite you to rethink it now. But we have to come back

22 to this next week.

23 Yes, now, I have to turn to a very crucial point of the exchange

24 of our visions and confessions as regards, first of all, the

25 identification procedure. I think we all have got your point in your

Page 1552

1 motion, and no doubt, this, if you so want, this has to be done. There

2 has to be a presentation of excellent photographs. So no doubt. But

3 when it comes to the recognition of a person, I think we all agree that it

4 has no probative value at all to come to this as it is called in the

5 jurisprudence of this Tribunal, "the courtroom identification" because if

6 there is one person in the courtroom and another person in the colour of

7 the United Nations beside, it's quite clear it's a person. It was decided

8 in some other cases. But working on such a case, this brought me to the

9 problem and how to resolve the problem that indeed, we don't have any

10 rules on recognition and how to do this in the most favourable way. For

11 example, as it is foreseen in most countries, I don't think it's a

12 question of common law or civil law in this case, that there is an

13 additional value when you really proceed with a lineup or as it is called

14 in the United States, an identification parade, Blacks, seventh edition.

15 Then you can find it's really some practical experience when we come to

16 this point.

17 I understand that these two witnesses you mentioned in your motion

18 are extremely important for the case. And therefore, we shouldn't

19 hesitate to exhaust all the possibilities to come as close as possible

20 to the truth. And my question is really, why not try to find out whether

21 there is another solution, another result, when we have additionally,

22 emphasise additionally, such a very formal identification parade? Because

23 here, once again, in the literature, you can read a lot about this added

24 value, because it's not only the face, it's not only the beard or

25 whatever, it's also a question of body language and other criteria

Page 1553

1 available only in the framework of such an identification parade. And

2 therefore, I really would ask you to rethink whether it's not better to

3 have additionally such an identification parade as regards these two

4 witnesses, probably by the way of taking depositions, applying the rules

5 on depositions correspondingly, or even in courtroom. This is, of course,

6 the question you have to answer, what seems to be more appropriate for

7 you. But to the point, all possibilities have to be exhausted to come as

8 close as possible to the truth.

9 MS. KORNER: If I understand Your Honour correctly, and I want to

10 make sure that I do, you would like the two witnesses who say "we knew

11 Stakic, and we saw him in a certain place and recognised him because of

12 our previous relation with him" nonetheless, you would like an

13 identification parade to be held at which they should attend to see

14 whether they can identify him now, ten years after, with a beard?


16 MS. KORNER: Supposing, Your Honour, they don't? Is Your Honour

17 going to treat their evidence as less value because ten years on, they

18 don't recognise him, and because he looks completely different from -- and

19 no doubt about it, he looks completely different.

20 JUDGE SCHOMBURG: No, not in the framework of this Tribunal. But

21 in numerous domestic courts, I can here unfortunately more refer to

22 jurisprudence and the factual situation in the Russian federation than in

23 Germany. There have been some discussions in the federations on this

24 issue, and normally it is conducted this way to do both, and even if one

25 fails, it doesn't mean that the witness does not recognise this person.

Page 1554

1 It could be, for example, there is a recognition on the basis of different

2 photos, and this could be under the free evolution of evidence enough to

3 come to a conclusion. Or the other way around: During an identification

4 parade, for reasons you can never foresee, there is an identification

5 because suddenly a person asked to recognise another person finds out, oh,

6 now I remember. This is the reason why I really can remember this was the

7 person. And so therefore, to do it twice is better than to omit one

8 possibility.

9 MS. KORNER: Your Honour. I understand. That's why I asked Your

10 Honour -- forgive me for asking Your Honour the question. It may well be

11 that they do recognise him. It may well be that they all never forget his

12 face, even disguised as it is with a beard. Not disguised but the

13 change. Equally they may not. And that's why I'm saying it's unfair, in

14 our submission, on the witness to ask him to do this. Now, of course, if

15 there is a dispute that these witnesses genuinely did recognise him, then

16 clearly we must make what attempts we can. But then I think the fairest

17 way of doing it is to take a photograph of what he looked like then, take

18 another half a dozen photographs or however many Your Honour thinks right,

19 and ask them to pick him. It may not be known to Your Honour but in the

20 United Kingdom, you are not allowed to hold dock identifications under any

21 circumstances because there have been too many mistakes or that's what the

22 courts thought. And one of the things is if there is recognition, so

23 called, then there is an identification parade held. But not ten years

24 after the event, and not -- that's the unfairness here.

25 JUDGE SCHOMBURG: I don't think we should use the notion of

Page 1555

1 unfairness vis-a-vis any party or vis-a-vis as a witness, because it seems

2 to be quite clear that it is extremely difficult to recognise and then

3 identify a person ten years after an alleged incident. But one should at

4 least try. And as I mentioned already, the literature I worked on on this

5 issue in the past when preparing the Russian code of criminal procedures,

6 we went into these details, and surprisingly the results of these

7 attempts, suddenly even 20, 25 years after an incident, people, for the

8 one or other reason, can recognise a person during an identification

9 parade. And therefore, really, I would recommend to do this, and I regard

10 this as my duty bearing in mind the Kupreskic decision where it was

11 clearly stated that it was for the Judges to take care that all evidence

12 is brought to the attention of the Chamber and that we have to use all

13 evidence and all possible means of evidence taking. And therefore, it's

14 just my recommendation to do both, and not only to do what evidently is

15 necessary to provide the photographs.

16 MS. KORNER: Well, Your Honour, we've certainly heard what Your

17 Honour says. Apart from the practical difficulties of how you hold an

18 identification parade in the detention unit, that's another matter. I

19 don't think we're discussing practical matters here. Your Honour, we

20 certainly have heard what your going to say. It may assist however, I

21 think, if -- I would certainly invite Mr. Lukic to indicate whether there

22 is going to be a dispute, that these two particular witnesses knew Stakic

23 and could recognise him. Because I think that would assist, and then

24 obviously we will have to consider everything Your Honour says about how

25 we deal with this.

Page 1556

1 JUDGE SCHOMBURG: Okay. Thank you.

2 Mr. Lukic, what is your position to this question?

3 MR. LUKIC: First of all, I haven't confirmed with my client yet

4 whether these persons know him or not. First of all, I have to check who

5 these persons are. But I know what they should confirm. But anyway, we

6 would ask the Court to halt any pictures from this courtroom to go outside

7 of Mr. Stakic from now on, before this recognition has been done, or will

8 be done. Because I know in Omarska case, we had people who would say we

9 don't have TV. And we know that they even discussed about the pictures.

10 We knew it from the other witnesses. So everybody is looking, this

11 programme, and everybody is following these trials. So we are quite sure

12 that those two witnesses which should recognise the accused will follow

13 the trial of reports. So we ask to stop the picture of Mr. Stakic to go

14 outside this courtroom, and we ask the Prosecution not to show the

15 pictures of Mr. Stakic to those two witnesses. And if we conclude that

16 those two witnesses know Mr. Stakic very well, then this wouldn't be

17 necessary, and then we would make this undisputable, that they know him.

18 But until now, we don't know, so we have to ask for these protective

19 measures.

20 JUDGE SCHOMBURG: Thank you for this contribution. But

21 unfortunately, in our media society, it is not possible at all if only

22 once a picture is out, then it is on the market. And we can't prevent

23 anybody to produce new copies from these photos in the future. And what

24 we should not do today is to try to already evaluate what will be probably

25 in the future. You really can take it as granted that this Trial Chamber

Page 1557

1 will very carefully analyse whether there is a probative value on the

2 recognition of Dr. Stakic or not? And taking into account all the

3 circumstances, whether or not they had -- the witnesses have seen Dr.

4 Stakic in the past, on television, in the print media, and so on.

5 Everything has to be taken into account, and we are all aware of the

6 limited value of this kind of recognition. But I'm quite sure you will

7 agree that we have to do everything possible to find out what is true and

8 what is not true.

9 MR. LUKIC: Yes, Your Honour, of course. Only what I have to

10 state is that if the pictures go out from this courtroom, it would give us

11 a good foundation for any kind of objections to the recognition.

12 JUDGE SCHOMBURG: I'm fully aware of this. But just in the past,

13 I saw in two different newspapers the picture of Dr. Stakic, and we can't

14 stop this process unfortunately. And therefore, protective measures are

15 not helpful indeed.

16 MS. KORNER: Your Honour, I take Mr. Lukic's point, and obviously,

17 if we get to the point of identification, we'll ask the witnesses whether

18 they have watched, they have seen any of the proceedings. But I don't

19 think, Your Honour, it would be right to stop proceedings going out for an

20 issue like this. I think, Your Honour, the answer is for the moment,

21 we've understood Your Honour's concerns, and we'll have to see how things

22 run from now.

23 JUDGE SCHOMBURG: Okay. Thank you. Then we come to another

24 point, the Prosecution's request for a variation of Pre-Trial Judge's

25 order for filing of motions and related matters. If I see this correctly,

Page 1558

1 we have to regard the three motions pending until now as one attempt to

2 clarify open questions during the Pre-Trial. And of course, to be quite

3 clear, both the attempt to come to rules or guidelines on the

4 admissibility of evidence or other related questions, this can't

5 be -- can't form part of an order of a Pre-Trial Judge, no doubt. But as

6 there were no objections from both parties, when it comes to the question

7 of the admissibility of evidence, there will be a decision already in the

8 beginning of next week, because this point seems to be undisputed between

9 the parties. What indeed seems to be disputed, probably even this is not

10 the case, is the question of the right of the accused to speak out during

11 the trial. Of course, once again, this is only a suggestion until now,

12 and it's for the Judges in future to decide on this issue. But only to

13 decide on this issue when it's really a relevant problem.

14 From my point of view, it becomes only then for the Office of the

15 Prosecutor a relevant problem if it really is the case that Dr. Stakic

16 requests to take the floor, and the floor is granted; and in addition, the

17 Office of the Prosecutor sees some prejudice in this. But here, once

18 again, we have to clearly distinguish between different notions. It is,

19 of course, not the question of testifying at all; it's a question whether

20 or not an accused has a right to make a statement. This is not the

21 question of testimony during the trial. I understand that the Office of

22 the Prosecutor wants to make the point that this is not allowed under our

23 Rules because until now, it's only the possibility explicitly for seeing

24 that there is either testimony - we don't discuss testimonies - or an

25 opening statement.

Page 1559












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Page 1560

1 And the Office of the Prosecutor took the liberty to

2 address in paragraph 10 apples and pears in one and the same paragraph

3 when quoting Judge Agius. I discussed this issue with Judge Agius

4 and of course the point Judge Agius made was only on testimony and not on

5 statements. And in addition, quite right, in the Rules explicitly, and

6 it's mandatory, that the right has to be given for a statement in the

7 beginning. But of course, this is not limited from a human rights

8 perspective. Of course the accused always enjoys the right to make

9 statements, not to testify, to make statements, as it was done, for

10 example, in Kunarac appeal case. The Judges decided that it is necessary

11 to have an additional statement, so-called last word, to be granted to the

12 accused. You will never find this in the Rules. But it is inherent, as

13 it is the jurisprudence of this Tribunal, all our Rules and the Statutes

14 has of course to be read in the light of human right norms. And there,

15 it was clearly held always in the past that it's undoubtedly the right for

16 the accused to speak to the Judges, if he so wants, because he is the main

17 person. He is not the subject -- he's not the object of the proceedings;

18 he is, indeed, the subject with own rights.

19 And what my intention indeed was, and therefore I was surprised to

20 get objections from the side of the Office of the Prosecutor, to limit

21 these rights of the accused to certain points in time for the order of a

22 correct trial, not to disturb witnesses, but saying that it would be an

23 appropriate point in time for the accused to give his assessment in the

24 form of a statement of a witness testimony. When a witness has left this

25 room, then it should be the right for the accused to give a short

Page 1561

1 assessment, if he so wants, if he so wants, on this evidence we all just

2 heard. And I can tell you by experience, it's in addition helpful in the

3 assessment of a witness statement to hear immediately the reaction if an

4 accused so wants of the accused, because later on during the last word,

5 it's difficult to come back and to remind us on these issues. And

6 therefore, I regard this as a limitation of the inherent rights of the

7 witness, rather than granting new rights.

8 And you made several points under paragraph 8 of your statement.

9 You asked the question on what aspect he may testify? As I mentioned,

10 it's not a question of testifying, but rather a statement. Just the

11 evidence given by the witness, or matters related to this testimony? It's

12 only to give the possibility, if he so wants, to prepare his own

13 assessment, as I said before.

14 Next bullet: "Will the testimony be under solemn declaration?"

15 No, of course not, it's a statement, and the rules of statement and the

16 probative value of statements apply correspondingly.

17 Next bullet: "Will the accused be asked questions by his counsel

18 or merely make a statement at whatever lengths he chooses?" Of course no

19 questions by the counsel because when the counsel wants to speak, it's all

20 right for the counsel to do this but not to ask questions at this point in

21 time, as it is said in the rules governing statements, there is no

22 question of the accused at this point in time at all.

23 And it is of course, not whatever length he chooses. It is only

24 to the points relevant to the statement we all together heard just

25 before. Of course, neither the Prosecution nor the Defence will be

Page 1562

1 allowed to cross-examine or to re-examine the accused, and the Judges will

2 have not the right to put questions to the accused. It's really the own

3 statement. But to come back to the central point, I think we really can

4 wait whether or not the accused will make use of this inherent right in

5 future, and then if the OTP really so wants, then we should discuss their

6 objections. Probably it's a fight on -- I don't want to go on.

7 MS. KORNER: Your Honour, I think it's probably exceedingly

8 academic because I have already discussed this matter with Mr. Lukic. And

9 Mr. Lukic has an American co-counsel, and I have no doubt at all that the

10 advice that will given to Dr. Stakic is that he shouldn't open his mouth.

11 But as a matter of principle, it is I think the real difference between a

12 system whereby the Judges effectively ask all the questions of witnesses

13 at whatever stage they like, and a system whereby evidence is given by

14 witnesses being called by counsel and cross-examined by counsel. And the

15 Rule is absolutely, in our submission, clear. And Your Honour says a

16 muddling statement as testifying. There is no such thing as a difference

17 here between a statement and testifying. A statement is testimony.

18 The weight of the testimony, if we look at Rule 84, it says: "The

19 accused may after the opening statement of the Prosecutor" so it sets out

20 a very clear delineation, "if he or she wishes, and the Trial Chamber so

21 decides, make a statement under the control of the Trial Chamber. The

22 accused shall not be compelled to make a solemn declaration, and shall not

23 be examined about the content of the statement. And the Trial Chamber

24 shall decide on the probative value."

25 Your Honour, I don't want to enter into the rights and wrongs of

Page 1563

1 the two systems, civil and common law. I say that it's simply the rule,

2 and the rule makes it absolutely clear. If the accused wants to make a

3 statement, then it should be made after the opening statement of the

4 Prosecutor. If they wanted to say he could make it any time, they would

5 have said it. Your Honour, if the Judges decide to change the Rules

6 because they agree with Your Honour's definition, then we have no

7 objection. All we're saying is that as a matter of the Statute and the

8 Rules, he doesn't have the right to make a statement as and when he wants

9 to. He has a right to make the statement after the opening statement of

10 the Prosecution.

11 JUDGE SCHOMBURG: Would you then say that it was a breach of the

12 Rules conducted by the Appeals Chamber in Kunarac to granting the last

13 word, the granting of the possibility of a statement at the end of the

14 case?

15 MS. KORNER: Your Honour, it wasn't a trial, it was an appeal.

16 I'm afraid I haven't read the Kunarac judgement recently, and I didn't

17 recall that they had asked the accused to make a statement. But the

18 reason that this is in here is because of the very points that we raised

19 in paragraph 8, that there is a need for an orderly progression of

20 evidence, and that evidence is called on behalf of the Prosecution, and

21 then on behalf of the Defence. Your Honour, it seriously does raise all

22 sorts of difficulties that we have set out if the defendant is given the

23 right to say what he likes at the end of each witness, or whatever they

24 feel like presumably as well.

25 The end result could also be that the defendant never has to go

Page 1564

1 into the witness box to give any sort of evidence at all because he has

2 effectively given it through these [indiscernible] statements which Your

3 Honour is bound to take into account. Your Honour, as I say, it may well

4 be that it is purely academic, and it may be that Your Honour is entitled

5 -- obviously entitled -- to leave this matter in abeyance until a request

6 is made. All that we're saying, this is not something that the Rules do

7 allow for, in our submission. And if Your Honour decides, because there

8 is a request, that Your Honour will give permission, then our remedy is to

9 appeal Your Honour's ruling. That's it.

10 JUDGE SCHOMBURG: Of course, quite clear. And I think we can

11 agree that we disagree on this point, and let's wait what happens, what

12 will be the advice of the Defence counsel whether or not it's appropriate

13 to give a statement or not give a statement. And then we have to

14 rule -- we have to rule on this, and it will be a great pleasure for me to

15 provide the Office of the Prosecutor, especially making reference to the

16 Saunders case of Strasbourg where also in the common law environment, it

17 was held necessary to hear the person, and to give the right to speak out

18 in court to Mr. Saunders, in this case. But unfortunately, at the end of

19 the day, they came to the conclusion that it was cured, that his omission

20 was cured, because the context of the entire Saunders' case granted a fair

21 trial. But what we here should do is not start with the absolute minimum

22 standard of human rights; but when there is a human right, and I would

23 regard this as a human right inherent in our Rules as the Appeals Chamber

24 did in Kunarac, I would always grant this right. But let's wait and see.

25 And I'm afraid that I already -- we did the mistake discussing on an

Page 1565

1 academic level on issues probably not be a problem in our case, so let's

2 wait and see what will happen. And we shouldn't confuse, indeed, Dr.

3 Stakic with these academic issues.

4 MS. KORNER: May I say, I am very familiar with the Saunders case,

5 because two people in my chambers prosecuted and two friends of mine

6 defended in it. Your Honour, I don't think it turned from my recollection

7 on the refusal of the right of Mr. Saunders to testify. Mr. Saunders'

8 complaint was he was forced to give answers to the DTI, and those answers

9 were then used against him. It's a slightly different matter.

10 JUDGE SCHOMBURG: This is indeed a different matter, but when you

11 read it correctly, and I had the honour to do so, and therefore, in a

12 courtroom where I sit, I will never prohibit an accused to take the floor

13 for a statement if he so wants. In another context, I had the honour to

14 present a client both in Luxembourg and in Strasbourg. Unfortunately, we

15 won this case under Article 6 of the Convention of Human Rights' granting

16 his right to be heard. But when it's necessary, we will come back to this

17 academic discussion.

18 MS. KORNER: Your Honour, I was just going to say that I think

19 this could lead to a fascinating, academic discussion, but I don't think

20 this is the time.

21 JUDGE SCHOMBURG: I think the time is ripe for having a break

22 right now. I would invite you to discuss the question of whether or not

23 to withdraw the motion on the indictment with your client. Thank you.

24 Let's restart at 5.00 sharp. Thank you.

25 --- Recess taken at 4.41 p.m.

Page 1566

1 --- On resuming at 5.02 p.m.


3 MR. LUKIC: Yes, Your Honour. As you suggested, we are ready to

4 withdraw our objection, actually other motion objecting to the form of the

5 third amended indictment.

6 JUDGE SCHOMBURG: I thank both parties for cooperation on bringing

7 us to this clarification on this issue. I think this problem has

8 resolved. Let's come down to earth from the seventh cloud of this

9 academic question. This is now the point of -- yes, I learned that

10 yesterday you discussed the question of the length of time for

11 cross-examination. I discussed it already with my colleagues forming

12 the Bench in the future, and indeed, the criterion should be quality and

13 not quantity, and therefore, I don't think any kind of time limit is a

14 reasonable response. It should be decided on the relevance of the

15 matter. Therefore, I think both of you agree with this approach. You

16 agree, or was it your intention to propose some time limits? I would be

17 surprised.

18 MR. LUKIC: Your Honour, my intention was to propose some time

19 limits, to be -- to have the opportunity to easily organise the time of

20 the witnesses who would be here. Otherwise, it's -- if the witness is a

21 15-minute witness in direct examination, it can stay three or four hours

22 in cross then. So it would be much more difficult to organise time and to

23 organise our timetables, which we have to submit.

24 JUDGE SCHOMBURG: Right. Now, I got your point, because first of

25 all --

Page 1567

1 MR. LUKIC: Whatever Defence witnesses would be 10, 15-minute

2 witnesses.

3 JUDGE SCHOMBURG: There is, of course, no written rule, and there

4 should be no written rule or oral ruling on this. If there is suddenly a

5 matter of relevance, we can't say we said the cross-examination, for

6 example, should not be longer as examination itself and thereby limiting

7 one party to 15 minutes only. And you would restrict your own rights when

8 doing so when we come to the examination-in-chief.

9 MR. LUKIC: We had that kind of work in the Omarska case with

10 Judge Rodrigues. We were limited, so I'm used to it, but now if you say

11 no limitations, we'll fit in that.

12 JUDGE SCHOMBURG: I think we should start, and we should expect

13 the parties to kind of self-restraint to real important and relevant

14 matters, and hopefully it works on this basis.

15 MR. LUKIC: Thank you.

16 JUDGE SCHOMBURG: Okay. Thank you.

17 Protective measures. Is there any concern on protective measures

18 still pending? I haven't seen any new motion, anything in the

19 [indiscernible]?

20 MS. KORNER: Your Honour, I think we're up to date, although we

21 have put in three new witnesses. We don't think off the top of our heads

22 anyhow that they have asked for protective measures, so the protective

23 measures motion is already dealt with. Your Honour, with the caveat that

24 quite often there is a change when the witnesses arrive, but at the moment

25 we have covered it.

Page 1568

1 JUDGE SCHOMBURG: Of course. And as regards pseudonyms, this will

2 be resolved between the Trial Chamber and the Registry. I think this is

3 enough. It has not to be discussed today.

4 One point of --

5 MS. KORNER: I'm sorry. On that, could we deal with the pseudonym

6 aspect. Where there's a crossover between those that are going to be

7 having pseudonyms in both cases, that is to say, the Brdjanin/Talic and

8 this one, we prefer to use the same pseudonyms, because otherwise there

9 will be a terrible confusion. We have been giving them the pseudonyms BT.

10 This may cause a problem, and I think the best thing is we sit down with

11 the Registry and discuss in advance where we want to use a BT pseudonym.

12 JUDGE SCHOMBURG: It's not necessary to go into detail here.

13 MS. KORNER: Yes.

14 JUDGE SCHOMBURG: Fine. Then we may turn to a problem that really

15 concerns me. I've got the impression in the past that there were some

16 deliberations between the parties on the kind of agreements, and of course

17 I don't want to confuse and to only address this question. But we, of

18 course, have to make a distinction between the question of pleading in a

19 way or coming to an agreement on guilt or not guilt. And the other

20 problem, whether or not we have really contested matters of fact and law,

21 or if we can come to an agreement, at least on some factual bases. And

22 here, I would really encourage the Defence to reconsider if it wouldn't be

23 in the interest of, first of all, an expeditious trial, to agree to a

24 certain extent on the basic facts of the case. I'm quite clear -- I'm

25 really convinced that there are some points that will not be disputed.

Page 1569

1 For example, give a very neutral example, that there had been elections

2 and the outcome of the election probably the Defence also can reconsider

3 the question whether it's really necessary in this case to challenge the

4 question whether or not there was an Omarska camp, whether or not there

5 was a Keraterm camp. To say this already this way: At the start of the

6 trial, I have to conduct, of course, a further initial appearance, as it

7 is called, in the Rules. And there, we expect a new pleading of

8 Dr. Stakic. This is one point. I don't expect any change there under the

9 circumstances we have right now.

10 But it should be reconsidered whether or not the accused in person

11 or the Defence, together or alone, make a contribution giving us some

12 common basis whereupon we can work when we come to the central and the key

13 issue of this case, the individual responsibility of Dr. Stakic. And I

14 think Dr. Stakic should know that of course it is his right to remain

15 silent, and no inference can be drawn from the fact that he remains

16 silent. But on the other hand, in each courtroom on the globe, and this

17 is also true for this Court, this Tribunal here in The Hague, every kind

18 of cooperation, also when it's only a question on this cooperation on

19 agreed facts, to put it this way, will be helpful for an accused, an

20 accused being not guilty has of course an interest of course to have an

21 expeditious as possible a trial. Just in case, if, and I once again

22 emphasise, if there would be a sentencing stage in this case, it always

23 this kind of cooperation would be honoured in the sentencing stage, ex

24 officio by the Judges.

25 And therefore, this should be always -- always be seen as an

Page 1570

1 incentive at the beginning of the trial because later on, and we have

2 already some judgements of this Tribunal, later on it may be too late, and

3 it may be not regarded as a kind of cooperation at all if we have heard

4 already numerous witnesses, and if then there is an attempt to cooperate.

5 Probably then it's too late. And this should be really discussed between

6 the Defence counsel and Dr. Stakic before we hear the pleading and we hear

7 the decision whether or not either to testify or to make a statement in

8 the beginning of the trial.

9 And of course, in addition, we discussed the question of

10 especially two witnesses being for health reasons not able to come to The

11 Hague. It is regarded as an extremely valuable contribution when it can

12 be avoided that those witnesses have to come to The Hague or have to come

13 to a video equipment allowing for video statements. So therefore, please,

14 Dr. Stakic, please, Mr. Lukic, rethink this issue once more until we start

15 the trial, because this is a very important decision for us, most of all

16 Dr. Stakic.

17 MS. KORNER: Your Honour, could I say this, because I think Your

18 Honour is referring to the very facts that can be agreed, we would invite

19 the Defence to take the indictment, we invited the Defence in the

20 Brdjanin/Talic case to do the same, and to indicate to us which matters

21 were not disputed. It's the simplest way of doing it, as opposed to a

22 long list of facts. I think that would be perhaps of the greatest

23 assistance to Your Honours and us, obviously.

24 JUDGE SCHOMBURG: I think these contributions were quite clear,

25 and we come back to this issue next Tuesday.

Page 1571

1 The question of tendering of exhibits: I understood correctly

2 that in the meeting yesterday, there were some problems, that it

3 was -- there was a request for some clarification on the Chamber's stance

4 towards tendering exhibits not currently on the exhibit list. May I first

5 of all ask about the number of envisaged exhibits to be tendered here?

6 MS. KORNER: Your Honour, there are something like 800 and

7 whatever on the list. We would hope that we wouldn't have to put in every

8 single one of them, but it's difficult at this stage to give Your Honour.

9 Is Your Honour referring to the new ones?

10 JUDGE SCHOMBURG: The new ones.

11 MS. KORNER: Mr. Koumjian said... I'm sorry, there were 30

12 additional exhibits, give or take, that we would like to add.

13 JUDGE SCHOMBURG: May I ask, what about the translation?

14 MS. KORNER: I'll let Mr. Koumjian who has been dealing with

15 this.

16 MR. KOUMJIAN: Your Honour, I think that the exhibit list that we

17 included in our Pre-Trial brief was about 825, approximately, exhibits.

18 Actually, I'm still in the process of going through all of those 19

19 binders of exhibits being fairly new to this team. I don't anticipate

20 that we're going to put into evidence all of those, or even probably the

21 majority will not be put into evidence. However, we have also found some

22 other items just off the top of my head recently reviewing some video

23 evidence, some very short videoclips have appeared to me to be relevant.

24 We are disclosing them to the Defence, translated today, and we would be

25 requesting at some time -- I'm going to review all of the items with the

Page 1572












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 1573

1 investigators, and others have identified as potentially relevant to our

2 exhibit list to see whether they really are, and then we will be amending

3 or asking to add those to the exhibit list. Some of them, I think, I have

4 reviewed are clearly relevant, some of them I still haven't reviewed. At

5 most, right now, we have ten but I will probably cut that list down of new

6 items that we anticipate we may be adding to the exhibit list.

7 I should just indicate that we have provided the Defence with a

8 lot of discovery already that is not on the exhibit list that it's

9 possible that we would review and determine on this team that perhaps we

10 would want to add that to our list as something relevant.

11 JUDGE SCHOMBURG: Can we agree that in those cases, we work with

12 one week notice?

13 MR. KOUMJIAN: Absolutely. I've instructed our case manager to

14 disclose anything that we're potentially going to use as soon as

15 possible, and then we will make the determination whether it will be add

16 to the exhibit list. I certainly will notify counsel at least a week

17 ahead of time if we anticipate doing that.

18 JUDGE SCHOMBURG: If you could do the same vis-a-vis the Chamber,

19 I would be grateful. Having a -- may we just stay here at this point.

20 I'm aware that numerous documents of the mentioned 800 are not yet

21 translated. And I don't hope this will bring us to some problems. For

22 example, you indicated with some, from my point of view, important

23 documents that there still is translation pending, for example 420, 421,

24 444, which apparently form the basis of your case. What about the

25 translation here?

Page 1574

1 MR. KOUMJIAN: If I'm correct, I think Your Honour is referring to

2 some employment dismissals.

3 THE INTERPRETER: Microphone.

4 MR. KOUMJIAN: I believe Your Honour is referring to some

5 documents which indicate that the individuals were dismissed from their

6 employment.

7 JUDGE SCHOMBURG: No, no, no. These are minutes for example of a

8 session of the Prijedor local board, a diary of a person. I don't want to

9 mention the name here. 435. An intelligence report. And the excerpt

10 from the minutes of an urgent session of the Prijedor municipal

11 assembly, 444. Just to quote some. I understand that not all documents

12 on this mission are translated, quite clear.

13 MR. KOUMJIAN: All of them have been submitted to CLSS for

14 translation. I'm very familiar with the diary; that's a big issue. In

15 the ARK case, soon after it was discovered, it was submitted, and there

16 are some ongoing discussions with the Registry about expediting that

17 process. There's a meeting tomorrow -- or Friday about that. But all

18 have been submitted, and we're simply awaiting the official translations.

19 There is a binder that we anticipate receiving and disclosing -- we

20 anticipate disclosing to the Defence or putting in their locker tomorrow.

21 I know Mr. Lukic won't be here.

22 JUDGE SCHOMBURG: We just have now, there's a problem of

23 translations. Are there any other problem of translation? Mr. Lukic?

24 MR. LUKIC: We have one major one, and if you want me to address

25 it, because it's Donia, or do you want to talk about Donia later on.

Page 1575


2 MR. LUKIC: Then nothing else.

3 JUDGE SCHOMBURG: Then as it was already discussed yesterday, when

4 it comes to translations, indeed, we should try whatever we can when it's

5 really necessary to have a new motion and a decision. We should try to do

6 it early, otherwise, there will be an incredible delay when we have to

7 wait for the translation, first of all, into the French language.

8 MS. KORNER: Your Honour, may I say, I echo, support, and

9 thoroughly agree with Your Honour. I think all motions, if possible,

10 should be done orally.

11 There's one other matter: Mr. Koumjian wants to mention about

12 dismissals.

13 MR. KOUMJIAN: We have in -- on our exhibit list, we have a very

14 large number of dismissals from employment. They appear to be

15 substantially the same language, just with the different names and

16 positions. It's our intent at this time to simply translate a sample of

17 those and put into evidence a sample of about five of those dismissals.

18 JUDGE SCHOMBURG: I think this point is only fair, because

19 evidently, a dismissal itself is not a crime, and it's only for the

20 purposes of giving with one or more example indicating the entire

21 arrangement. Of course it's not necessary. From my point of view, it's

22 not necessary to translate all of the documents individually.

23 But please inform me whenever immediately -- whenever there should

24 be a problem of translation, first of all, in B/C/S; otherwise, we will

25 find a courtroom solution when it comes to the translation into or from

Page 1576

1 the French language.

2 Mr. Koumjian.

3 MR. KOUMJIAN: Another matter and similar situation is we have a

4 large number of proof of deaths. These are court documents issued by

5 courts in Bosnia where a person is declared dead based upon certain

6 necessary proof according to the law of Bosnia-Herzegovina. Again, we

7 anticipate only submitting for translation a sample of those. The rest of

8 the proof of deaths are in a database, and we would be presenting that in

9 more of a table form, summary form, of statistics. But the names and the

10 total numbers are in the database, and I should be corrected that the

11 potential new exhibits identified right now is -- my case manager

12 corrected me, it's 31. But again I'm reviewing that. I already know a

13 couple of them I do not want to put on the exhibit list.

14 JUDGE SCHOMBURG: Okay. But they have no impact on the ten first

15 witnesses indicated on your list?

16 MR. KOUMJIAN: I wouldn't want to say that now without having that

17 list in front of me. I'll determine that.

18 JUDGE SCHOMBURG: I appreciate this fair answer.

19 Then we can, of course, come to the opening of the trial. On next

20 Tuesday, we start in Courtroom III in the morning. It is planned, and the

21 Chamber will not accept any waiver, to read out the new indictment.

22 MS. KORNER: I heard Your Honours saying that. I was just

23 wondering why because the Counts haven't changed. We have taken some out,

24 but the original Counts.

25 JUDGE SCHOMBURG: It is a new indictment, and whether or not

Page 1577

1 maybe, maybe possibly later on, a question of law, and I have always

2 intentioned to avoid problems of law. Therefore, to be on the safe side,

3 I want to have this indictment read out. And the other question is also a

4 question of transparency and visibility of what we are doing here in front

5 of all the taxpayers throughout the globe? What are they doing for our

6 good money? Do they really only speak on disclosure, on exculpatory

7 material and all this form of questions. But people should know, and

8 especially in the former Yugoslavia, should know what's going on, have the

9 opportunity to hear both sides, the indictment, and the reaction of the

10 accused vis-a-vis this indictment. And therefore, it seems necessary to

11 read out the indictment.

12 MS. KORNER: In that case, Your Honour means to read out the whole

13 indictment in full?


15 MS. KORNER: Which would take an hour or so?


17 MS. KORNER: Does that include the list, the schedule, that Your

18 Honour has asked to attach to the indictment?

19 JUDGE SCHOMBURG: No, only the indictment in itself, and then

20 immediately afterwards, I will ask the accused to plead on this single

21 Counts. And then we, indeed, can start in the narrow sense.

22 MS. KORNER: In fact, it answers the question that I was going to

23 ask, Your Honour, is whether or not I finish the opening within two hours

24 or so, Your Honour would want to hear from a witness starting. But in

25 that case, the indictment is going to be read, the opening will take the

Page 1578

1 rest of the day.

2 JUDGE SCHOMBURG: Yes. Therefore, we can be prepared that this

3 covers the entire first day. Probably we have to address one or another

4 administrative questions, and then, of course, I will put once again the

5 same question as were already before to Dr. Stakic, and the Defence,

6 whether or not there is a basis as it was suggested by the Office of the

7 Prosecutor on the basis of the indictment to say on this paragraph, we

8 agree, we have not to discuss this in courtroom. We don't need evidence

9 on this or that point. I think we should come back to this, and this is

10 then already Tuesday. And on the next day, as I understand it correctly,

11 we will enjoy the contribution of Dr. Donia.

12 MS. KORNER: Your Honour, that's right. But Mr. Lukic, I know,

13 wants to raise what he says is a problem about this. And that's in

14 connection with the translation of the -- Dr. Donia has written an

15 annex to his original report which Your Honour has seen.

16 THE COURT: Right.

17 MS. KORNER: The translation of that additional annex will --

18 sorry.

19 I'm sorry, I got completely sidetracked. Your Honour, that

20 translation will be ready in draft. We can give it to Mr. Lukic on

21 Friday. The final translation will only be available on Monday. In other

22 words, it has to be revised. That's the situation. But I think Mr. Lukic

23 wants to raise another problem in relation to the translations.

24 MR. LUKIC: This is the only problem I have, because Mr. Donia,

25 Dr. Donia, is scheduled according to this list of Prosecution's first ten

Page 1579

1 viva voce witnesses, as a first witness. So it means that we are going to

2 get the translation on Monday, and he should start on Wednesday or

3 Tuesday. Probably Wednesday. And knowing that we have to discuss it with

4 our client, we don't have time; otherwise, if it's three months ago, I

5 would be able to translate it. But now, I don't have time for that. So

6 we really need the translation to be able to discuss this expertise with

7 our client. And that's why we wanted to raise this question and to ask

8 the Prosecution to move Dr. Donia and this group of witnesses to be the

9 last instead of the first. Or, maybe it's not necessary, because now I

10 can see that the last would be on the 14th of May. But at least, to give

11 us seven days in between the handling of the documentation and of the

12 witnessing of Dr. Donia.

13 JUDGE SCHOMBURG: If I understood the OTP correctly, they would be

14 prepared to provide us -- us -- be it by fax or e-mail or whatsoever, with

15 the non-revised translation, therefore, and then we would have it in our

16 hand on Friday.

17 MS. KORNER: Friday.

18 JUDGE SCHOMBURG: Then you could discuss it on Monday, and part of

19 Tuesday with your client. And of course, I don't know what is included.

20 But the essential part, I think, we have had in due time, and I expect,

21 and I am grateful to hear, that it will be a limited contribution to one

22 court day only on Wednesday, and then once again, there is a possibility

23 to discuss this after the hearing of Dr. Donia on Wednesday. So when it

24 comes to the cross-examination, we are ready on Thursday. I think it's a

25 fair time limit.

Page 1580

1 MR. LUKIC: I would, again, ask the Prosecution: Is there any

2 possibility to get this translation today? Because I was informed

3 yesterday that it would be ready today. At least, draft. I mean, a draft

4 would do its purpose.

5 MR. KOUMJIAN: I was told by the person doing it, that it would be

6 ready on Friday. But I would be happy to check and see what has been done

7 so far, and at least provide you with what has been done so far. It's a

8 20-page report, and I imagine if it is going to be ready by Friday, that

9 the great majority of it is translated.

10 MS. KORNER: Your Honour, we can offer a partial solution, if

11 that's of assistance, and that's this: That Dr. Donia will be here until

12 the 26th of April. He is in fact due to testify in the Galic case after

13 this. It may be that what we can try and do is arrange with the Galic

14 case that we call him in chief on Wednesday, and if Your Honour is happy,

15 we can try and put off cross-examination until a later date. The 26th is

16 the following Friday, I think, yes. Or is it not? Whenever the 26th is.

17 It is the following Friday. In which case we might be able to accommodate

18 Mr. Lukic to this extent if Your Honour is agreeable. That they can

19 testify in chief, and then come back at a later stage for

20 cross-examination.

21 JUDGE SCHOMBURG: Would this be a fair solution for you?

22 MR. LUKIC: That would be excellent, Your Honour.

23 JUDGE SCHOMBURG: Okay, let's proceed this way. Then we have

24 already the 17th, and then if I understood it correctly, the intention is

25 to go on the 18th with Witness Number 28?

Page 1581

1 MS. KORNER: Your Honour, that's right. Yes. Yes, I think -- I'm

2 just looking at the date. I am just checking that he was going to be

3 here, yes.

4 Your Honour, may I just for a moment return to an allied question

5 of Dr. Donia. I said I wanted to raise the question of pre-numbering

6 Prosecution exhibits, and we would like to be able to do that. And we

7 will number the Donia documents that are going to go in, most of which we

8 won't actually be going into detail on because they come in through the

9 testimony he gave in Brdjanin/Talic. But it would help if we could

10 pre-number them; and then from then on, we'll follow on. In other words,

11 P1, P2, unless there's any objection to that.

12 JUDGE SCHOMBURG: I don't think there is a problem on this point,

13 no. So then we -- you fixed or you said the approximate date to testify

14 for this other witness would be 18 to 21 April. That would bring us to

15 Monday. Right?

16 MS. KORNER: Yes.

17 JUDGE SCHOMBURG: Including cross-examination or?

18 MS. KORNER: That was -- we estimated including cross-examination.

19 As I say, the first two witnesses are likely to be the lengthier ones.

20 JUDGE SCHOMBURG: Parties should be aware that on Friday, there is

21 only a limited time available for us. But probably, it will be possible,

22 nevertheless, to conclude the 21st. I just wanted to make this point, so

23 nobody is surprised when we stop on Friday a little bit earlier.

24 MS. KORNER: And Your Honour, I think we had forgotten, or I know

25 there has been a change. But isn't it right, there's a plenary on the

Page 1582

1 23rd, so the courts won't be sitting on the Tuesday? I just noticed.

2 JUDGE SCHOMBURG: This is right, indeed. This would bring us to

3 21 April. And then just to be on the safe side, what is planned for the

4 22nd of April?

5 MS. KORNER: I don't know. I don't know why we skipped the 22nd.

6 I think we are just going on with a witness. I think maybe our dates were

7 slightly wrong there.

8 JUDGE SCHOMBURG: Witness Number 3, Number 45 would be present

9 already?

10 MS. KORNER: Yes. Or in fact, it may well that be the Defence

11 will be ready to cross-examine Dr. Donia then, on the Monday, the 22nd,

12 depending on -- I have to sort this out with the Galic team. I don't know

13 what they have got planned.

14 JUDGE SCHOMBURG: 22nd. Now, back from 26 to 22nd. But I really

15 think it's fair enough.

16 MS. KORNER: I'm sorry. He has to leave. Dr. Donia is actually

17 leaving on the 26th. That was why I mentioned the 26th.

18 JUDGE SCHOMBURG: Let's envisage to have the 22nd for the

19 cross-examination and for all the questions the Judges may have on this

20 issue. And if I understood it correctly, Dr. Donia will testify on these

21 new 20 pages and, apparently, on the first part of the contribution you

22 provided us with dealing with Prijedor since 1990 only.

23 MS. KORNER: Yes. I think, Your Honour -- may I say that

24 Mr. Cayley, who is not really involved in this case, is going to be

25 calling him. And I haven't really discussed the length of the testimony.

Page 1583

1 I think the idea is to very briefly flesh out the sort of general

2 background, and then go straight into Prijedor.


4 Then, I believe we should not attempt to go on further with the

5 detailed planning of the next days.

6 Then I would understand that the next witness would appear the

7 24th, 25th, and 26th.

8 MS. KORNER: Your Honour, he is the witness that I really would

9 like to try and get some arrangement made with the Brdjanin/Talic case

10 because, as I say, he has testified already here three times. He is

11 required for two other cases in this Tribunal, and to have to bring him

12 back for the Brdjanin/Talic case. I think I'll need to raise this matter

13 in the Brdjanin/Talic case as to whether it's possible for this man to try

14 and testify, at least immediately after he has testified, or with a gap.

15 What we try and do is get the transcript, an instantaneous Livenote

16 transcript, so that Defence counsel can see him. I need to raise that.

17 Indeed, I might try and raise that this afternoon at the end of the

18 Brdjanin/Talic case.

19 JUDGE SCHOMBURG: This would then bring us to 24, if it's

20 possible, 24, 25, 26 April. And indeed, we shouldn't try to go further on

21 and then see what can happen afterwards, after we have heard these three

22 first witnesses.

23 Any other contribution as regards the opening of the trial? Then

24 I don't see any other problems we have to tackle today already. The only

25 question remaining is for the purposes of the entire machinery of this

Page 1584

1 Tribunal. In the past, and if I understood it correctly, also yesterday,

2 you made the point that it would be approximately -- the envisaged time

3 would be approximately three months?

4 MS. KORNER: That's our best estimate of the Prosecution case,

5 including cross-examination of the witnesses.

6 JUDGE SCHOMBURG: So there could be a best-case scenario that we

7 could probably conclude your case before the summer Court recess starting

8 the 3rd of August.

9 MS. KORNER: If everything proceeded smoothly and there were no

10 breaks -- well, I wouldn't say there's a good chance. There's a realistic

11 prospect of concluding the Prosecution case by August.

12 JUDGE SCHOMBURG: Let's try our best, all the participants.

13 Okay. Thank you for reminding me that there is -- there was still

14 one open point, to go through the witness list.

15 MS. KORNER: Yes, Your Honour, I've got it now. I wasn't quite

16 sure. I mean, Your Honour, there's no change in those that are viva voce

17 and those that we propose to put in by Rule 92. We were reminded

18 yesterday that we need to give formal notice that we wish to put the

19 statements in under Rule 92, and we are going to do so and supply

20 Your Honours a copy of the statements, which I think we agreed to do by

21 the end of the week.

22 JUDGE SCHOMBURG: So we have saved three witnesses. If I

23 understand correctly, this is the final list, and the final identification

24 whether or not there's 92 bis, viva voce, or deposition. Nothing has

25 changed since -- what was it, 14 March?

Page 1585












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Page 1586

1 MS. KORNER: Your Honour, at the present, there's no change. Of

2 course, it depends very much, because we haven't formally given notice to

3 the Defence, whether they object to these witnesses being called -- sorry,

4 tendered under Rule 92.

5 JUDGE SCHOMBURG: It's your plan to proceed on this basis.

6 MS. KORNER: It is, yes.

7 JUDGE SCHOMBURG: After the expiration of the time limit of seven

8 days, then we hear from the Defence, when you've got the motion, whether

9 or not you can consent on a 92 bis solution.

10 Already this is made clear. Any other contributions from the

11 parties? First, from the Defence.

12 MR. LUKIC: We have really nothing new, Your Honour, to raise

13 right now for the start of the trial. So we'll try to see on Monday when

14 my co-counsel is here as well to go through the indictment to see what can

15 be undisputed in this matter. That's all we can do before the trial for

16 now.

17 JUDGE SCHOMBURG: I thank you very much, especially for this last

18 sentence.

19 And from the side of the Prosecutor?

20 MS. KORNER: No, Your Honour, there's nothing further we wish to

21 raise.

22 JUDGE SCHOMBURG: Thank you. Then we can conclude this Pre-Trial

23 Hearing, and let's hope that this case really can start next Tuesday,

24 9.00, Courtroom III. Thank you.

25 --- Whereupon the Pre-Trial Conference adjourned

Page 1587

1 at 5.45 p.m.