1 Tuesday, 21 January 2003

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.05 a.m.

5 JUDGE SCHOMBURG: Please be seated.

6 Good morning to everybody. May we hear the case, please.

7 THE REGISTRAR: Good morning. This is Case Number IT-97-24-T, the

8 Prosecutor versus Milomir Stakic.

9 JUDGE SCHOMBURG: Thank you. And the appearances, please.

10 MR. KOUMJIAN: Good morning, Your Honours. Nicholas Koumjian, Ann

11 Sutherland, with Ruth Karper for the Prosecution.

12 JUDGE SCHOMBURG: The Defence.

13 MR. LUKIC: Good morning, Your Honours. Branko Lukic and John

14 Ostojic for the Defence.

15 JUDGE SCHOMBURG: Thank you. Before we start with today's

16 witness, we have two urgent matters to discuss related to the upcoming

17 witness 058. The Defence wants to have the transcript of the former

18 hearing of this witness. Correct? For these purposes, we need under Rule

19 75(F) to (H) a formal request in order that we can forward this, and it

20 will be only possible if we take your request now to the transcript, and

21 based on this, we'll try to do our very best that we have the transcripts

22 available.

23 May we, therefore, hear your request, if any.

24 MR. OSTOJIC: Good morning, Your Honours. We will formally wish

25 to make a request pursuant to the Rules that the transcript of Witness 058

1 be permitted to be distributed to the Defence counsel and to the OTP. It

2 was our understanding initially that this witness did not testify in a

3 closed session. Subsequently, we learned that that was an error, that he

4 testified in a closed session in the Keraterm Sikirica case. And

5 therefore, we would be asking that that transcript be submitted to the

6 Defence counsel for our review and necessary preparation of the witness.

7 JUDGE SCHOMBURG: Thank you.

8 Any comments by the OTP?

9 MR. KOUMJIAN: Your Honour, we already have given the Defence the

10 transcript. We understood this was a witness under the Rules. We thought

11 that under the new Rule, we no longer are required when a witness is going

12 to appear in another case and has indicated he will appear to ask for the

13 consent of the witness or the Trial Chamber to disclose the transcript.

14 JUDGE SCHOMBURG: What we learned until now is that in fact the

15 witness was heard in closed session, and even under the new Rules

16 applicable as of I think July or August last year, we need to contact the

17 Judge of the earlier case, in this case, Judge Robinson. So therefore, to

18 be on the safe side, there are no objections from your side.

19 So then we can proceed on this basis. And the second point is we

20 received yesterday a motion from the Defence related to two witnesses, a

21 request for subpoena. First, the Trial Chamber does not believe that it's

22 necessary to subpoena this witness. The most expeditious way in order to

23 call this witness is, from our point of view, to call these witnesses as

24 Chamber witnesses, also taking into account that we learned from the

25 Defence that those witnesses would not appear or would not be prepared to

1 appear as witnesses by the Defence. Nevertheless, I think it's no doubt

2 that the Defence has shown good cause to hear these witnesses. Therefore,

3 we would intend to proceed this way, calling these witnesses as Chamber

4 witnesses but as in the beginning without subpoena.

5 MR. OSTOJIC: That would be acceptable with the Defence, Your

6 Honour.

7 JUDGE SCHOMBURG: Any comments by the OTP?

8 MR. KOUMJIAN: No, Your Honour. Just for future reference on the

9 last issue, it was our understanding under Rule 75(E)(ii), that we were

10 obligated to provide this type of transcript. Obviously, this was a

11 Defence witness, and the Defence believe this would mitigate guilt in some

12 way. And the Rules simply require us to notify the Defence of any

13 protective measures in the earlier proceeding. That's how we're

14 interpreting it and just -- I just bring that up so that we can be

15 informed if the Court has a different interpretation.

16 JUDGE SCHOMBURG: Yes. We've got your point, and from this we

17 learned that in any event, the Defence has no prejudice from these

18 proceedings, and we would appreciate also to have access to these

19 transcripts. We try to do our best, but as we said earlier, following

20 contacts with the other Chamber, we thought this would be necessary to

21 have this formal approach. Thank you.

22 Then related to the second matter, the request by the Defence to

23 hear two additional witnesses and to summon them as Chamber witnesses

24 during the Defence case is hereby granted. We'll do the necessary and

25 inform the parties as soon as possible about the outcome of our attempt.

1 The witness of today has asked for protective measures. They have

2 to be justified, but they can only be justified when the witness is here

3 and in the courtroom. To be on the safe side, if there are no objections,

4 we want to start in closed session to hear the submission of this witness

5 related to the protective measures. And may I ask for additional

6 precaution in case we have only voice and face distortion.

7 So Madam Registrar, we are in closed session?

8 [Closed session]

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3 [Open session]

4 JUDGE SCHOMBURG: For a few minutes. I learned during the break

5 that there would be a change in the order of calling the witnesses by the

6 Defence.

7 MR. OSTOJIC: That is correct, Your Honour. We were informed by

8 the witness and victims unit that one of our witnesses has been -- either

9 come down with the flu or is ill. And so instead of proceeding with

10 Witness Number 058, we would proceed in I guess any order that the OTP

11 would like, with either Witness 071 or Witness 072. Since I know they

12 mentioned there may have been a scheduling issue with some binders they

13 were compiling on the witnesses.

14 JUDGE SCHOMBURG: The consequent logical order would be

15 immediately to hear Witness 72. But I don't want to anticipate the answer

16 by the OTP.

17 MR. KOUMJIAN: We actually would have a request -- or I would have

18 a request that we do Witness 71. I can't be here for tomorrow, so I would

19 like to see Witness 72 myself.

20 JUDGE SCHOMBURG: I think you are prepared for both witnesses.

21 MR. OSTOJIC: We are. But I have just been informed that we also

22 thought logically would go, so I informed the witness and victim unit

23 protection, whatever, that 72 would come first. So as long as we can get

24 some assistance from the Court in rescheduling that, we are prepared with

25 either one. We also thought it might have been a preference, and we took

1 an informed decision and scheduled 72. But I'm sure with the Court's

2 assistance, we could get that clarified in the next hour or so.

3 JUDGE SCHOMBURG: I will not promise anything in advance. And I

4 don't know whether or not there are impediments. But I think we handled

5 this also in the past whenever the Defence asked for another order for

6 reasons that the one or other counsel could not be present. So therefore

7 we should be in agreement that we start with 71 tomorrow. But of course,

8 we can't exclude that we may even start with Witness 72 tomorrow.

9 May I ask, Witness 58, he is ill, I learned this. But he's in

10 The Hague?

11 MR. OSTOJIC: That is my understanding, Your Honour. We haven't

12 been able to meet or visit with him, but that is the information that was

13 provided to us with the representative with the unit. We hope to

14 accomplish that in the next hour or to what the issues are.

15 JUDGE SCHOMBURG: I would appreciate if you could let me know

16 today, and if of course, if it should be ex parte, then we would

17 immediately inform the other party about this issue. No doubt about

18 this. In case Witness 58 would not be available, do you have a reserve

19 witness?

20 MR. OSTOJIC: We did try that, and regretfully to report, it's

21 impossible because of the timing of various procedural things such as

22 obtaining visas, length of time for visas. So we do not. We are required

23 to at least give five days' notice at a minimum, and then I think they

24 only have temporary entrance permits or visas to come in and then leave

25 within a specific time period as opposed to a longer period. But we are

1 trying to do everything we can, but as of this moment we would not have

2 any other witnesses. But we do believe that the remaining 71 and 72 will

3 take slightly longer than the anticipated time that we reference in our

4 proffer. Not significantly longer, but perhaps two and a half to three

5 hours on each, as opposed to the initial estimate of approximately two

6 hours.

7 JUDGE SCHOMBURG: Yes. So please inform us immediately if you

8 know whether there is at least a likelihood that Witness 58 will be able

9 to appear. And there is one additional question: Unfortunately once

10 again related to this legal system prevailing here. I took it that the

11 transcripts on the previous testimony given on Keraterm was already

12 disclosed to the other side. If I'm not totally wrong, the same witness

13 testified as well in Omarska case. So for us apparently, it's not

14 available. It's not on the Internet. And --

15 MR. KOUMJIAN: We did provide. We just provided this afternoon

16 copies to the Chambers and the Defence. Apparently the Chamber will

17 make -- the legal officer indicated copies would be made for the Defence.

18 JUDGE SCHOMBURG: So we did what we could in the meantime in order

19 to have -- to be on the safe side and have the consent if necessary. Rule

20 75 is one of the worst Rules we have in our Rules of Procedure and

21 Evidence by the Judges, so this shouldn't be an obstacle. But I just

22 learned that Witness 58 is travelling home tomorrow.

23 MR. OSTOJIC: We'll check. I mean, we were here the entire day,

24 so we will accomplish and report to the Court everything I know. I have

25 not talked to the witness, and we have not consulted or met. So as soon

1 as we find out, we'll inform the Court and the parties.

2 JUDGE SCHOMBURG: Thank you. Any other issues for the moment?

3 MR. OSTOJIC: Well there is one other, if I may, but I'm not sure

4 if it's appropriate now or at a subsequent time. It involves questions

5 put to the witness and witnesses by the OTP, specifically on page 83, line

6 11, and page 103, line 11. All I'm looking for from the Chamber is

7 clarification if the OTP can put suggestive questions as they have

8 throughout without showing a basis to the Court or the parties, we would

9 merely request that the Defence be given that same opportunity. At each

10 time the Defence asked a question about an article or about a statement by

11 another party, the Court respectfully, even without the interruption and

12 objection by the OTP, would say or request the page number, the document

13 that we're referencing, and in this instance, although with other

14 witnesses as well, we felt there was a practice established that you must,

15 when you discuss items such as whether an individual was a member of the

16 Markovic party or whether or not this witness that the Court called was

17 alleged by some of their witnesses to be present and working at Omarska,

18 or is it simply just speculation on their part in an attempt to have the

19 witness become distraught or whatever their strategy is, give us that

20 evidence. Give it to us beforehand.

21 JUDGE SCHOMBURG: Once again, first you should read carefully

22 today's transcript, and you will immediately identify that I asked the OTP

23 as well to indicate clearly the transcript page they are making reference

24 to. As regards other documents, in this set, it is impossible for the

25 Judges to know what the parties know. So therefore, it might be that

1 based on the one or other exhibit available, made available only for the

2 other party, the other party has reason to know that the question has a

3 sound basis. If not, please object, and then we have to ask the

4 questioning party what is the basis for this answer. It's as simple as

5 that. So therefore, I only can ask you when necessary to intervene.

6 Otherwise, I take it that you have the same information, and it's among

7 the parties undisputed.

8 Anything else?

9 MR. OSTOJIC: No, Your Honour.

10 JUDGE SCHOMBURG: From the side of the OTP?

11 MR. KOUMJIAN: No, Your Honour.

12 JUDGE SCHOMBURG: Thank you.

13 MR. KOUMJIAN: There is on the -- it doesn't have to be discussed

14 today, given the hour.

15 JUDGE SCHOMBURG: In the interest of all participants, it's a good

16 decision. The trial stays adjourned until tomorrow, 9.00.

17 --- Whereupon the hearing adjourned at 4.39 p.m.,

18 to be reconvened on Wednesday, the 22nd day

19 of January, 2003, at 9.00 a.m.

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