International Criminal Tribunal for the Former Yugoslavia

Page 2752

1 Tuesday, 7 May 2002

2 [Status Conference]

3 [Open session]

4 [The accused not present]

5 --- Upon commencing at 3.18 p.m.

6 JUDGE SCHOMBURG: This is now a separate session, a Status

7 Conference. In applying also Rule 65 ter (i) correspondingly, that means

8 a Status Conference without the presence of the accused, we will touch

9 upon several matters that could normally be done in the absence of the

10 accused, for example, in an ongoing meeting with the senior legal officer.

11 But, in order to save time, we would -- we should like to come as far as

12 possible with all of the administrative matters. And I would ask the

13 parties, whenever they believe that an issue should not be touched upon or

14 resolved in the absence of the accused, tell it, please, immediately that

15 we can decide whether or not to proceed on this single issue.

16 Can this be the basis for the ongoing discussion?

17 MR. OSTOJIC: Yes, Your Honour.

18 MR. KOUMJIAN: Yes, Your Honour.

19 JUDGE SCHOMBURG: Thank you.

20 Then, I believe there was a request from the side of the

21 Prosecution to discuss an issue.

22 MR. KOUMJIAN: I have two brief matters, Your Honour, to raise.

23 First, regarding the -- yesterday, we distributed a photo board that the

24 Office of the Prosecution made up, which we planned to show to the

25 witness, Witness Number 47. And the other witness, who at present we

Page 2753

1 anticipate will testify or in their statement indicated that they saw the

2 accused in the Omarska camp. It is my understanding from the Court's

3 ruling about a week ago, last Thursday I believe it was, where the Court

4 said that either party had at their means to use either procedure, the

5 photo board or the lineup. As the Court could see and Defence counsel

6 could see, we put 12 different people on that photo board, and I think if

7 there is any objection to the board, we wanted to give the Defence a

8 chance to raise that now.

9 The other issue briefly I wanted to touch upon is we have some

10 concern, and Ms. Korner indicated she would like to address this at some

11 point when it's possible with the Court, regarding the context of how

12 events -- of what was happening preceding and during the events in

13 question in this case in the area of Bosnia as a whole and the area of the

14 Krajina. It is our belief that these matters of context were covered by

15 the part of Dr. Donia's report dealing with the ARK. Ms. Korner wants to

16 address this, but if I could just indicate the issue. We are concerned

17 about things, for example, in Exhibit 12, there's a stamp from the

18 Autonomous Region of Krajina. We haven't presented evidence other than

19 through Dr. Donia's report what exactly that was. It was indicated in

20 that report in early April, there was a takeover in Banja Luka that there

21 was a Crisis Staff was set up, I believe, on the 7th of May for the

22 Autonomous Region of Krajina, which eventually came to include Prijedor.

23 That also, there was an indication in testimony I believe

24 yesterday that Dr. Stakic indicated at one point he had to go to Banja

25 Luka. To understand the context of that, it's important to understand

Page 2754

1 what was going on in Banja Luka in the Autonomous Region of Krajina being

2 the regional centre. One witness testified to seeing helicopters landing

3 in late 1991 and 1992, and I recall Mr. Lukic asking the witness on

4 cross-examination, could that have been had to do with the war in Croatia?

5 Well, I believe it's covered in Dr. Donia's report that there was a

6 cease-fire in Croatia at that time in 1991 and 1992. Also, many witnesses

7 have referred to the all-parties agreement, the agreement among the three

8 national parties to a division of positions within the municipalities,

9 based upon the results of the election. So, just to alert the Court to

10 the issue, our concern is how the Court is going to understand the context

11 and consider that the context has been established when making its

12 ultimate decisions on this case and in evaluating the testimony of

13 individual witnesses.

14 JUDGE SCHOMBURG: Thank you. Let me start with your second point.

15 It was also on my agenda, but from a different position. As far as I

16 learned, until now, there is nothing and really nothing from both parties

17 on agreed facts. And I wonder whether it wouldn't be, not only in the

18 interest of an expeditious but fair trial, but also in the interests of

19 the parties, to come as soon as possible to at least some agreed facts in

20 order to concentrate this trial on that what it is. The question of

21 individual criminal responsibility of Dr. Stakic, and I wonder if it's not

22 possible to agree on some facts, let's say, first of all, on the

23 environment, the basic environment of that what happened at that time in

24 former Yugoslavia.

25 Of course, we are restricted, and I am emphasised it on several

Page 2755

1 occasions, to the municipality of Prijedor and the time expressed in

2 indictment. But, to give you a concrete example, and I believe it's

3 always better, also, for the Defence counsel to know, to a certain extent,

4 what is in the head of the Judges instead of being surprised later on when

5 it's from their position, possibly too late. Therefore, until now, we,

6 the Judges, have cause to speak, for example, about the alleged takeover

7 the 30th of April. I heard this notion, this term, also in questions from

8 the side of the Defence, therefore my question: Couldn't this and other

9 points form part of agreed facts? This would really limit and let us

10 concentrate on the main issue of this case. And therefore, I once again

11 want to invite you to take the necessary steps to come to a conclusion.

12 MR. OSTOJIC: Your Honour, we most certainly will endeavour to

13 meet and schedule a meeting with the OTP in order to accomplish what the

14 Court has asked of us. And I believe personally, as does Mr. Lukic, that

15 we could indeed accomplish some of those facts which you'd like us to at

16 least have a stipulation upon. And we can work on it as long as the

17 schedule permits for both sides, and we'll try to do that on the time line

18 that the Court gives us.

19 JUDGE SCHOMBURG: Here, indeed, it's not my intention to work with

20 time limits, because it could be counterproductive. So I really would

21 invite you to start immediately, if not today, because there is time for

22 all of us to work on the case, to come together, and to start such an

23 attempt to come to agreed facts. Therefore, I don't want to give a time

24 limit, but I invite you to start immediately after this Status Conference.

25 And probably then all the other questions brought up as regards your

Page 2756

1 second point can be resolved.

2 Would you be prepared to-

3 MR. KOUMJIAN: We have been inviting this kind of conference in

4 various ways since several months before the trial began.

5 JUDGE SCHOMBURG: So this was a second point.

6 Your first point of concern regards the photo board. Step by

7 step, first question: Any objections against the photo board itself by

8 the Defence?

9 MR. OSTOJIC: Yes, Your Honour, we do object to the photo board.

10 But I also must admit that we were under the understanding that the Court

11 had ordered a five-man identification, and there was some talk of the

12 photo board, both prior to the ruling by the Court or prior to the

13 provisional ruling of the Court respectfully. I just want to make sure --

14 I thought it was a ruling, but I don't want to have the OTP state that was

15 or was not. So I'm just being cautious not to insult the OTP on this

16 issue. Call it what you may. The photo board, we think, is inconsistent

17 with what the Court has ordered, from our understanding of your ruling, so

18 we do object to it for that reason. And the only other reason we would

19 object to it is that it goes a little more to the detail of it. We think

20 that the photo board does not, in its entirety, depict the individuals who

21 may be similarly situated. There are some who are similar, I admit that,

22 and they have done, I'm sure, an exhaustive job. But just one thing that

23 comes to mind, for example, is that the only witness or the only person

24 whose mouth is open on the photo board is that of our client, the accused

25 Dr. Stakic. Those are minor details, but those would be our comments,

Page 2757

1 Your Honour.

2 JUDGE SCHOMBURG: First of all, there should no doubt at all about

3 that what the Bench decided, that all the possible means should be

4 exhausted to come as close as possible to truth, and that it's the opinion

5 that first in line, there should be held an identification parade.

6 Sometimes in the literature, it is discussed whether or not having already

7 either, first a photo board and then an identification parade or the other

8 way around would reduce the probative value of the second attempt. But I

9 don't have any problems here to work with both possibilities. To start

10 with the envisaged identification parade and then later on to present a

11 photo board. Of course, you can't, in advance, expect the Trial Chamber

12 to give already an evaluation, because it really depends from the actual

13 reaction of a witness in the one situation and in the other. But here, in

14 the concrete case, I think from an artificial -- from the scientific point

15 of view, it's -- there is still another probative value, because we have a

16 totally different picture before us of Dr. Stakic ten years ago. And the

17 identification parade would allow a witness to recognise a person on other

18 identification criteria, such as body language, such as the way to move,

19 the way to look from a perspective from the side. And therefore, both

20 should be done additionally. And only then, we come to the question

21 whether it's a fair photo board. And indeed, the first impression is that

22 what was emphasised by the Defence, that Dr. Stakic on this photo is the

23 only one with open mouth. And to give you, for example, two others, it's

24 rather difficult why we have, for example, 12, 9, and 1 being of a totally

25 different.

Page 2758

1 Of course, we can't go too much into details. But I wonder if it

2 wouldn't be possible to have the exchange of one or other person on this

3 photo board. But nevertheless, we can have here a lecture conducted by a

4 professor on recognition -- on the human being's possibility to recognise

5 another person. And no doubt, there would be the order: First,

6 identification; second, photo. And the other idea would be, this is to

7 the party who has the burden of proof, to provide five similar videotapes

8 of a person entering a room, five persons entering a room, and then show a

9 witness these five situations. But I don't want to go into the shoes of

10 the Prosecutors. It is for the Prosecution to act in -- within this

11 framework, and this means, of course, first to conduct this identification

12 parade, and then to try to come closer to truth with the assistance of a

13 photo board.

14 MR. KOUMJIAN: Thank you for that clarification. To be honest

15 with the Court, I did not understand that to be the ruling last Thursday.

16 Because -- and perhaps it's completely my error. But what I understood

17 the Court to say is that it was the prerogative of the parties to decide

18 on the photo board or the use of a live lineup. Our main objection,

19 although we first objected to any identification because we thought these

20 were recognition, as opposed to identification, witnesses -- our main

21 objection was to the ten-year time lapse and change of appearance. So

22 recognising that this was my mistake -- I'm not saying it wasn't in

23 interpreting that -- I would indicate to the Court -- I could find the

24 transcript. I think it wasn't as clear last week as the Court made it

25 today.

Page 2759

1 We withdrew our appeal. I withdrew our appeal, I actually went

2 out and took it out, with the understanding that that option was open to

3 us to use the photo board rather than the in-court identification. We

4 still feel with the photo board, we have 12 people, and we can say that

5 some are not as appropriate as others, the reality is they are going to be

6 much, much closer in appearance to the accused than we could ever find in

7 finding four other individuals in the Detention Unit. And we are not even

8 sure how we can compel someone to participate or whether they would

9 volunteer. Regardless of that, all I'm saying is that I perhaps

10 misunderstood the Court. If the Court would like, we could review the

11 transcript. I see I misunderstood you, but perhaps it wasn't as clear to

12 me perhaps as it was made today. And I just hope that the Court accepts

13 that that was a good faith misunderstanding on my part as to what the

14 Court's ruling was.

15 JUDGE SCHOMBURG: Having revisited the transcript, I don't think

16 that there was any opportunity for a misunderstanding. But now it stands

17 as it is, and please, let's proceed in the way as suggested. And, as I

18 indicated at that time already, it is for the Prosecutor to find four

19 other similar persons going through this premises. I already myself

20 identified five, six persons from people, for example, working with the

21 security, being really able to come close to the way and the body

22 language, the way of the behaviour of Dr. Stakic. So, therefore, it

23 shouldn't be too complicated. And of course, this should be discussed and

24 the selection of the person, should be discussed beforehand with the other

25 party, that we don't have to face a situation that in the courtroom, there

Page 2760

1 are objections against the composition of this identification parade.

2 Any other problems related to this?

3 MR. OSTOJIC: No, Your Honour.

4 JUDGE SCHOMBURG: Then I want to remind the parties that during

5 the Pre-Trial Conference, the office of the Prosecutor indicated that

6 there would be a possibility to limit the number of exhibits

7 substantially. I think once again, in order to facilitate and speed up

8 the proceedings, this would be helpful. It would avoid additional

9 workload on the shoulder of the Defence, investigating on additional

10 not-needed exhibits in this case. What is the situation here?

11 MR. KOUMJIAN: Well, we've gone -- I've gone through most of the

12 exhibits, and I think we're actually going to present in Court less than

13 half of the total exhibits. But as things develop, an exhibit that does

14 not have apparent value to me may -- I may see value later on or another

15 attorney may. I don't know how helpful it would be to the Defence to

16 right now -- for us to go through the exercise of saying these are the

17 ones we anticipate using. We've tried to adopt the procedure of picking

18 out these exhibits a couple of days at least before the witness testifies.

19 But sometimes that doesn't work too well. I picked out some for the next

20 witness, and then found out today, in talking to him, that he has, for

21 physical problems, great difficulty reading. So, I probably will not be

22 presenting those exhibits to that witness.

23 JUDGE SCHOMBURG: Wouldn't it be possible for the OTP, in case

24 they identify that the one or exhibit can be excluded, that they notify

25 the other party and the Bench immediately on this?

Page 2761

1 MR. KOUMJIAN: We could do it. We could review those 800.

2 Frankly, I don't know how much that would really assist, as opposed to

3 notifying the Court and Defence counsel before we plan to use an exhibit

4 that we do plan to use it, as opposed to reviewing all 800 and making a

5 list of which ones we definitely will not use. I can say now that we've

6 already indicated to the Defence counsel and the Court, I think this

7 eliminates hundreds, that we're going to -- not going to present the proof

8 of deaths and the terminations as exhibits. And I think that eliminates

9 several hundred of the exhibits, the proofs of deaths will come in simply

10 as a part of testimony regarding missing persons and exhumations. The

11 terminations, we may simply put those in untranslated or not put them in,

12 but indicate how many signed orders we have. We've indicated we are

13 translating a few as an example. We are translating five as an example.

14 But that eliminates several hundred of the exhibits.

15 Some of the lengthy exhibits were covered, I think, already in Dr.

16 Donia's testimony and has been ruled on, some of the Republic level Serb

17 Democratic Party minutes and Serb deputies' club minutes.

18 JUDGE SCHOMBURG: I think we can't go into further details, and

19 I'm quite sure it would be more actionism than responsible work if you

20 would do the entire work of excluding exhibits. The only point is, and

21 here I would indeed invite the parties, when discussing the so-called

22 agreed facts, wouldn't it be possible that when, for example, the Defence

23 has problems with the one or other exhibit, saying: "Here we need

24 in-depth investigation, we need translation," that then possibly the

25 Prosecution could indicate we will not make use of this concrete exhibit?

Page 2762

1 And, for example, this could be true, just to indicate -- I don't know

2 what is the position of the OTP as regards this -- we have numerous

3 exhibits, for example, on dismissals. So, do we really need all of them,

4 question mark? But this should be left for the deliberation between the

5 parties.

6 MR. KOUMJIAN: I think we've indicated we don't plan to present

7 those all, at least not to translate all of those dismissal notices. And

8 I have identified documents that I don't feel are relevant, but there are

9 several other lawyers working on the team, and we haven't reached a

10 complete -- haven't had a chance to confer with them and see if they see

11 any relevance. I can -- I hesitate to provide Defence with a list of

12 documents to be excluded, and then later find out that I've missed a point

13 that someone else has that makes that document relevant. But I could do

14 that if the Court thinks it would really be helpful.

15 JUDGE SCHOMBURG: Any observations from the Defence as regards

16 this?

17 MR. OSTOJIC: No, Your Honour, there's not.

18 JUDGE SCHOMBURG: Then there is one motion pending. The Office of

19 the Prosecutor's motion from 1st of May on the amendment of the proposed

20 list of witnesses.

21 The Chamber has discussed this issue, and it is to be announced

22 that this motion is dismissed. First of all, for the reason given by the

23 Defence yesterday. Once again, it is to be emphasised that this case is

24 not on the responsibility of Crisis Staff or other parliaments or

25 executive bodies in general. It's on the criminal responsibility of the

Page 2763

1 concrete person of Dr. Stakic in a concrete municipality. And it's not

2 possible to take in a responsible way, analogies from other

3 municipalities. Of course, as it was indicated, there is -- and it's

4 necessary that there are always discrepancies between the legal situation

5 and the factual situation. And we have, first of all, to observe and to

6 identify the factual situation. But we can't draw conclusions from other

7 crimes, possibly committed in other municipalities, and it was, as it was

8 pointed out, on probably totally different situations in other

9 municipalities in the former Yugoslavia -- in Yugoslavia.

10 If there wouldn't be such discrepancies between legal obligations

11 and factual behaviour, nobody indeed would need a court. And therefore,

12 we decided that this additional witness would not give us any relevant

13 added value, and therefore the motion had to be dismissed.

14 Any other points to be discussed? Let's take the opportunity on

15 general matters for today.

16 MR. OSTOJIC: None from the Defence, Your Honour.

17 MR. KOUMJIAN: Just to alert the Court, that some of our 92 bis

18 submissions involved transcripts of testimony where videos were admitted

19 as exhibits. We have not yet provided those videos, but are in the

20 process of getting those -- we have them ready now for disclosure to the

21 Chamber and to the Defence.

22 JUDGE SCHOMBURG: You have them ready today?


24 JUDGE SCHOMBURG: So we could proceed.

25 MR. KOUMJIAN: We can provide them to the Court officers today. I

Page 2764

1 don't think -- after you break, Your Honour.

2 JUDGE SCHOMBURG: I think now it's better for the Judges to show

3 some self-restraint and leave the territory to the parties and invite them

4 to come together, and let's hopefully hear tomorrow some development as

5 regards agreed facts, number of exhibits, and so on.

6 Thereby, this Status Conference is finalized, and we hope to

7 continue tomorrow at 2.15. The parties may be informed that the Court

8 asked in the interest of the accused, and in the interest of the ongoing

9 case, a doctor to examine Dr. Stakic as soon as possible, and we have the

10 results in writing until tomorrow before 12.00.

11 --- Whereupon the hearing adjourned at

12 3.50 p.m., to be reconvened on

13 Wednesday, the 8th day of May, 2002,

14 at 2.15 p.m.