1 Monday, 17 March 2003

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.15 a.m.

5 JUDGE SCHOMBURG: Good morning. Please be seated.

6 After some deliberations and before, and explicitly before we

7 start today's hearing, the Trial Chamber feels it appropriate that we do

8 not start this day, the day called the day of truth, that we spend some

9 thoughts to this what might happen in the near future.

10 This Tribunal is acting under Chapter 7 of the charter of the

11 United Nations. In the past, we haven't seen any attempts to establish

12 similar International Tribunals for the purpose of prosecuting persons

13 responsible for serious violations of international humanitarian law

14 committed in the territory of the Iraq. It's called the trial of truths.

15 Let's hope that it will be also a day of the rule of law.

16 Here in this Tribunal, we have seen, and we daily see it, what it

17 means to become an innocent victim of a war. Therefore, I believe it is

18 necessary to spend these thoughts also in the framework of this Tribunal

19 established under Chapter 7 of the charter of the United Nations. One may

20 ask what has this to do with the concrete cases in this Tribunal. It

21 should be emphasised that the absence of justice in other areas does not

22 justify not to grant justice in the area and the period of time we are

23 mandated for. There is no equality in nonjustice.

24 But first of all, being here always under the impression of the

25 reports of those having survived the heinous crimes committed in former

1 Yugoslavia, I think our thoughts should go for a moment to those innocent

2 persons living now in Baghdad or elsewhere, having no chance to escape.

3 Let us hope that there will be a last chance and let us hope that the harm

4 for these innocent people will be as limited as possible. Let us hope

5 that this will not undermine the law -- of the rule of law, not undermine

6 public international law in general.

7 Let us now call this concrete case, please.

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

9 Prosecutor versus Milomir Stakic.

10 JUDGE SCHOMBURG: Thank you. And the appearances, please for the

11 Prosecution.

12 MS. KORNER: Good morning, Your Honour. It's Joanna Korner,

13 Nicholas Koumjian, and Ruth Karper, case manager, for the Prosecution.

14 And we are pleased to see that Your Honour is at least majorly recovered.

15 JUDGE SCHOMBURG: For the Defence, please.

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

17 Ostojic for the Defence.

18 JUDGE SCHOMBURG: Thank you. I have to announce that I got a

19 message from Smash Bronovo, telling us to ICTY -- that's the stamp, it

20 reads, "Smash Bronovo, to ICTY Trial Chamber II. Mr. S. Trifkovic, born

21 the 19th of July, 1954, visited the first aid post of the general

22 practitioners at Bronovo hospital today. In my opinion, a day or two of

23 rest are necessary for him before he shall be able to testify before the

24 Court. Smash Bronovo, Bronovolaan 5, 2597 AX, The Hague. Unreadable

25 signature of doctor. 16th of March, 2003."

1 So I think we have to accept that at least today, we will keep in

2 contact with this expert whether he's able to testify tomorrow or the day

3 after. I don't know. The Defence, do you have any better informations?

4 MR. LUKIC: No, Your Honour. We contacted this morning, and we

5 heard for the first time this morning that Mr. Trifkovic is sick. And we

6 were promised that the Witness and Victims Unit will check on

7 Dr. Trifkovic and on his health. So as you know, we cannot contact

8 Dr. Trifkovic, and we also know only what you know.

9 JUDGE SCHOMBURG: Thank you. What about the other remaining

10 witness? When would it be possible for you to start with this witness?

11 MR. LUKIC: Your Honour, we probably need only one hour to tell

12 the gentleman that he has to testify today, because we told him that he is

13 going to testify tomorrow. So we can start today. We only have to

14 transfer the message to him that he has to start today.

15 JUDGE SCHOMBURG: Would it be possible --

16 MR. LUKIC: And it should be necessary for us to see him. So

17 probably we can start at 11.00. He should be a short witness, and I think

18 that we might be able to finish with him today anyways even if we start at

19 11.00.

20 JUDGE SCHOMBURG: One can see with the watch that yesterday some

21 repair works have been done.

22 Would it be possible for you to separate yourselves that we can

23 discuss in the meantime some administrative matters in Court? It would be

24 really of assistance because a lot has to be done and to be said.

25 MR. LUKIC: Yes, Your Honour. I'll do that.

1 JUDGE SCHOMBURG: Thank you very much for this assistance.

2 It might still be possible, and there is the likelihood that we

3 can conclude the Defence case as scheduled, by the end of this week. But

4 before we can come to this assessment, may I ask the Defence, is there

5 anything new about any additional witness? Until now, we have this fact

6 witness before us to be expected for today, and the estimate was, if I'm

7 correct, one and a half hour of examination-in-chief. Then hopefully we

8 can conclude the expert, conclude first the examination-in-chief. May I

9 ask, what's your estimate -- what's the time you need for finalising this

10 expert?

11 MR. OSTOJIC: Are we referring to Dr. Trifkovic, Your Honour?

12 JUDGE SCHOMBURG: Yes.

13 MR. OSTOJIC: Approximately a half hour to 45 minutes.

14 JUDGE SCHOMBURG: And then the Prosecution would need?

15 MS. KORNER: Your Honour, certainly not less than three hours.

16 There's quite a lot. Possibly a little more now. I originally estimated

17 two to two and a half, but as a result of the examination-in-chief, the

18 estimate has gone up.

19 JUDGE SCHOMBURG: So in conclusion, it would mean that all in all,

20 even worst-case thinking, within two days, this expert could be concluded.

21 MS. KORNER: Your Honour, certainly, if he can start tomorrow,

22 he'll be concluded on Wednesday.

23 JUDGE SCHOMBURG: And then it would be as of Thursday the other

24 expert for the Defence. And what is your updated estimate you would need

25 for this?

1 MR. OSTOJIC: Three to three and a half hours, Your Honour.

2 JUDGE SCHOMBURG: So it would also be possible to do this witness

3 within two days, Thursday Friday, correct?

4 MR. KOUMJIAN: Yes, Your Honour.

5 JUDGE SCHOMBURG: Any other news about the other witnesses of the

6 Defence suffering from some health problems or not found until now?

7 MR. OSTOJIC: No additional news, Your Honour.

8 JUDGE SCHOMBURG: No additional news. So we could take it that

9 for this week, there would be no additional witness from the side of the

10 Defence.

11 MR. OSTOJIC: That's correct, Your Honour.

12 JUDGE SCHOMBURG: Therefore, we would only have to discuss some

13 matters related to exhibits and other issues I've noted down. But then my

14 view would immediately go to the left-hand side. For the next week, it is

15 foreseen to start and hopefully to conclude the rebuttal. What is

16 envisaged by the Prosecution for next week? What is planned, and when may

17 we have a first overview of what is to be expected?

18 MS. KORNER: Your Honour, at the moment, anything we want to call

19 in rebuttal, we would -- would be Rule 92 and one potential witness that

20 we're awaiting. So whatever, it won't take a week.

21 JUDGE SCHOMBURG: Following the rules, the order would be

22 rebuttal, rejoinder, and then finally Chamber witnesses. You know that we

23 have on the roll of Chamber witnesses hopefully two witnesses to come from

24 Prijedor and one other maybe witness. This can only be determined

25 following the 65 ter (i) conference the 31st of March, when in another

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1 case, the time limit for an appeal has elapsed.

2 Would the parties have any problems in case we learn that the two

3 witnesses from Prijedor would be available next week, that we would in a

4 slight change of the order of Rule 85, we would hear these witnesses

5 during the period of rebuttal or, if this is not possible, during the week

6 dedicated to rejoinder? First, the Prosecution.

7 MS. KORNER: Your Honour, it makes no difference to us, but I

8 don't know whether my remarks about one of the witnesses you proposed to

9 call were communicated to Your Honour, and Your Honour is still going to

10 call him.

11 JUDGE SCHOMBURG: They were forwarded, and no doubt we are fully

12 aware that this witness has been interviewed by the Prosecution as a

13 suspect. A suspect in these rules not appearing as a judicial term,

14 during trial. To be quite clear on this, I think the admonition in the

15 beginning has to be the same as it was with witnesses Budimir and Travar.

16 The only difference might be, and this would be a conclusion ad minorem,

17 ad maiorem. But in case a witness that enjoys the right of an assignment

18 of a counsel during the pre-trial stage, that the same right he would also

19 enjoy during trial.

20 So therefore, we are aware of these additional problems, but I

21 think there is no hint at all in the moment that this witness would not

22 testify to that -- at least to that end and this scope, he gave statements

23 to the Prosecution. No doubt, he has a right to remain silent vis-a-vis

24 those questions, and maybe even vis-a-vis certain areas where the

25 questions tend to answers of a self-incriminatory nature. And as we

1 stated already earlier, until now, it was seen by the Prosecution more or

2 less only as a theoretical discrepancy, this Trial Chamber would not try

3 to compel a witness, being a suspect from the point of view of the

4 Prosecution, under Rule 90, para (E), to compel the witness to answer

5 those questions. So therefore, it might be that in fact the one or other

6 area could not be covered by this witness. But let us wait and see.

7 Until now, we have no hints that the witness wants to make use of this

8 right.

9 But I take it from previous statements of the Prosecution that

10 there is no obstacle that this Trial Chamber grants and has granted safe

11 conduct and the same safe conduct for this witness, and the same would be

12 true for the government of the Netherlands providing also safe conduct for

13 this witness when being on the territory of the Netherlands.

14 MS. KORNER: Of course, if Your Honours and the Netherlands grant

15 him safe conduct, that's a matter for Your Honours. And we certainly

16 can't do anything about it. Your Honours may, perhaps, just want to

17 consider the public perception of giving a man such as this safe conduct

18 to come to this Tribunal and to sit in the witness box as a witness. But

19 that's a matter for Your Honours.

20 JUDGE SCHOMBURG: We are fully aware, and we also took this into

21 account when discussing whether or not to summon this witness. It's not

22 for the first time that I'm confronted with a similar problem, especially

23 involved in white-collar crimes where you usually have always the safe

24 haven where the even co-accused may disappear. And it's a balancing act

25 whether it's in the interest of justice, whether it's in the interest of

1 the accused to have a fair trial to hear these witnesses being suspect

2 themselves. But as I take it, not indicted. And this would be for us, no

3 doubt, a different assessment. But we take it that this witness has not

4 been indicted by this Tribunal and not been indicted by any of the courts

5 in the former Yugoslavia.

6 MS. KORNER: I don't know that. Your Honour, although strictly I

7 ought not to be saying this because there are still sealed indictments,

8 but the answer is he's not indicted at the moment, but we cannot possibly

9 say whether he has been indicted by somebody else.

10 JUDGE SCHOMBURG: Of course. And therefore, both are admonitions

11 vis-a-vis Mr. Budimir and Mr. Travar already in the beginning, and also

12 this restraint applying Rule 90, para (E), because we can't guarantee that

13 testimony compelled in this way shall not be used as evidence in a

14 subsequent prosecution against the witness for any offence other than

15 false testimony. We are not able to safeguard that there is not such a

16 prosecution in any other country in this world.

17 So therefore, we don't want to make use of this paragraph (E) of

18 Rule 90, but in case the witness feels fit and wants to make a testimony,

19 even though being a suspect, then I think it's -- it might be even

20 mandatory to hear this witness. I don't know, but hopefully we will learn

21 in the near future, what about the other witness. There seem to be some

22 difficulties --

23 MS. KORNER: Sorry, the driver? Yes, well, it's a matter for Your

24 Honours if you want to hear from the driver. We have nothing to say about

25 his driver.

1 JUDGE SCHOMBURG: We prefer to have our assessment always first

2 after a witness has been heard. So hopefully, he will arrive.

3 Then we have to discuss, and I think please correct me if I'm

4 wrong, the statement of Madam Bozana Stakic that has arrived in a

5 certified way. Are there any objections against the admission into

6 evidence of this, my impression is unchanged, statement of Bozana Stakic?

7 MS. KORNER: Your Honour, if it's unchanged, no. We are trying to

8 find it at the moment. I mean, if it's exactly the same, the answer is

9 no, I'm told.

10 JUDGE SCHOMBURG: The only remarkable things that you can read

11 under "additional remarks" since the statement was produced in English

12 version, the letter was read out aloud back to the witness by the

13 presiding officer. The witness stood by her statement.

14 So can you finally let us know your position, please.

15 MS. KORNER: No objection, Your Honour.

16 JUDGE SCHOMBURG: Then this statement by Bozana Stakic is admitted

17 into evidence pursuant to Rule 92 bis.

18 I know it's a difficult question for the Defence already now when

19 not knowing what will happen during rebuttal. What do you envisage to

20 call during rejoinder?

21 MR. OSTOJIC: We can only envision that we'll call witnesses to

22 rebut that which they call in rebuttal, Your Honour. But until we know

23 which witnesses, we obviously can't make that assessment.

24 JUDGE SCHOMBURG: In the interest of the -- to have also in the

25 near future as expeditious as possible trial, I think it could be helpful

1 if the parties meet and discuss already now what would be the rebuttal

2 witness or witnesses by the Prosecution in order that there might be an

3 immediate reaction by the Defence. We all know how long it takes to call

4 a witness.

5 Then it would immediately follow, and I think the parties - let me

6 know if I'm wrong - are still in agreement that once again, in deviation

7 of that what is foreseen in the rules, we would, leaving aside

8 deliberations, we would start with the oral final contributions by both

9 parties, and only later then expecting the final brief. Is this still the

10 opinion of the parties? And what about the real time estimate the parties

11 would need in case we can follow this schedule for the final brief?

12 Before giving you the floor, I want to emphasise that the Chamber

13 will prepare a paper highlighting those factual and legal problems we

14 would like to hear submissions by both parties especially, and this would

15 be based an our ongoing deliberations both on legal and factual aspects of

16 this case. No doubt that it is for the parties to give their additional

17 remarks, comments, and whatever. It's foreseen under the rules. But in

18 addition to this, we want to hear some comments on very special judicial

19 and factual problems. Taking into account this, what would be the

20 estimate the parties would need for the pre-trial brief in the moment

21 scheduled for the Thursday before Easter? May I ask the Prosecution

22 first.

23 MS. KORNER: Your Honour, I'm sorry I'm not quite clear. Is Your

24 Honour asking whether we want to put the delivery of not the pre-trial

25 brief, but the closing brief?

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1 JUDGE SCHOMBURG: Sorry.

2 MS. KORNER: Are you asking us whether we want more time or what?

3 I'm not quite clear at the moment.

4 JUDGE SCHOMBURG: The first question is - we discussed this

5 earlier - are you still in agreement that we start with the oral exchange

6 of views, and then later have the closing briefs -- sorry, having then the

7 closing briefs of this case? And then the question is: What is a real

8 time estimate for the period of time you would need to prepare a

9 well-elaborated and covering all issues closing final brief in this case?

10 MS. KORNER: Well, Your Honour, can I deal with the first

11 question. Your Honour, it would not have been my personal choice to have

12 dealt with matters in that order. However, I understand that Mr. Koumjian

13 agreed to this, and because the Prosecution acts as one, I'm now not going

14 to resile from that. Your Honour, then as far as we're concerned, we are

15 content with the time allowed, which I think is the 17th of April or

16 whatever, to put in our closing brief.

17 JUDGE SCHOMBURG: And the point of view of the Defence, please.

18 MR. OSTOJIC: The Defence is in agreement that we can proceed with

19 the oral arguments and then submit the final brief, the written brief.

20 However, we would like an additional seven to ten days on the written

21 brief. And I'd also like to ask the Court if permitted, when would we be

22 getting their factual and legal questions or paper as the Court has put

23 it?

24 JUDGE SCHOMBURG: This would follow as soon as possible and as

25 soon as practicable, hopefully during this week. But no doubt, it might

1 be that the following weekend will be needed for finalising this paper

2 prepared by the Chamber. We'll take your remarks into consideration, and

3 maybe there is a third way, to help you out, in case it would not be

4 possible to finalise your final brief. It should, no doubt, be a final

5 brief covering all these issues emanating from that what we have heard

6 during the then 140 days in court covering all the exhibits. I know it's

7 extremely difficult to do this.

8 But I invite the parties really to concentrate on the core issues

9 of the case, and primarily on the individual criminal responsibility of

10 Dr. Stakic and refrain, please, from additional and overwhelming comments

11 on circumstances not related to this, and especially this is true when it

12 comes to questions of the history - let's put it this way - of area in

13 both terms, in time and in space. So we can concentrate on this, we

14 really can concentrate on the fourth amended indictment, I think it must

15 be possible to have these briefs ready in April, hopefully before Easter,

16 that we may come to a conclusion as soon as possible, that is, a final

17 judgement.

18 But may I hear from the Defence, is it to be expected that the

19 accused in person tries either -- wants to testify, wants to make a

20 statement as foreseen in the rules, or would it be necessary to make a

21 reservation for a period of time when we would grant the last word to the

22 accused in person?

23 MR. OSTOJIC: Your Honour, with our last discussions with

24 Dr. Stakic, we're still contemplating all the issues, and we haven't been

25 able to concretely resolve any of them to this point. So I have no update

1 for the Court. But we will attempt to meet with him either later this

2 afternoon or tomorrow, and I'll get back to the Court as soon as possible

3 on that.

4 JUDGE SCHOMBURG: Thank you. From this I take it that none of the

5 options is yet excluded. Correct?

6 MR. OSTOJIC: At this time, that is correct, Your Honour.

7 JUDGE SCHOMBURG: Then, next point, we are aware that there still

8 is outstanding a 66 (C) decision. The Defence has the right to be put on

9 notice that there has been such a 66 (C) in-camera meeting. A decision

10 has not yet been handed down.

11 May I now come to the question of exhibits. First, Madam

12 Registrar, following your observations, you have laid down in a memo to

13 those exhibits which have not yet been admitted or where there had been

14 some problems. Has all these been resolved in the past? Could you please

15 go through bullet by bullet your own remarks.

16 THE REGISTRAR: Okay. In regard to S11-1, the OTP is to provide a

17 B/C/S version.

18 JUDGE SCHOMBURG: Has that happened?

19 THE REGISTRAR: Not yet, Your Honour.

20 MS. KORNER: Your Honour, we've got everything here. Perhaps

21 rather than it being gone through handing documents in, we can deal with

22 it after Court. It's here.

23 JUDGE SCHOMBURG: The next one.

24 THE REGISTRAR: S151A, the OTP to provide a new English version.

25 MS. KORNER: Not available.

1 JUDGE SCHOMBURG: Not yet available.

2 MS. KORNER: Yet.

3 THE REGISTRAR: S365-1, the OTP to provide a final transcript of

4 the video.

5 MS. KORNER: Available.

6 THE REGISTRAR: S362, the final translation is expected.

7 MS. KORNER: Available.

8 THE REGISTRAR: S368, the parties were to discuss about the

9 additional file the Defence wants access to.

10 MR. KOUMJIAN: Your Honour, I haven't heard from the Defence

11 exactly what they want access to on that database, the electronic

12 database.

13 JUDGE SCHOMBURG: Mr. Ostojic, may we hear your comments.

14 MR. OSTOJIC: It's my understanding that we did at least discuss

15 it with the Prosecution, but to the extent that my understanding from

16 Mr. Lukic is incorrect, we'll get back to them on that issue this

17 afternoon, S368.

18 JUDGE SCHOMBURG: Thank you. This remains open. The next one?

19 THE REGISTRAR: S369, the translation into English is pending.

20 MS. KORNER: We have a summary, I'm told, Your Honour, not a full

21 translation.

22 JUDGE SCHOMBURG: Any objections by the parties, to have a summary

23 only? Mr. Ostojic, please.

24 MR. OSTOJIC: None that come to mind, Your Honour.

25 JUDGE SCHOMBURG: Thank you.

1 THE REGISTRAR: S375, the translation into B/C/S.

2 MS. KORNER: Being handed in now, Your Honour.

3 THE REGISTRAR: S393B, the original of the second page is

4 expected. It's a handwritten page.

5 MS. KORNER: Your Honour, that's here.

6 JUDGE SCHOMBURG: I thank you for this in fact readable side of

7 the page. May we ask the Prosecution to try to produce a translation of

8 what now can be clearly read on the back side of this document.

9 MS. KORNER: Your Honour, it's quite interesting. We checked, and

10 I'm told by Ms. Karper that the CLSS said that it is not readable for the

11 purposes of translation. But we'll have another go.

12 JUDGE SCHOMBURG: Some words, no doubt, can be identified

13 immediately. I don't know how to proceed in this case. Could the

14 translation unit please be asked to translate these words which are

15 without any doubt readable.

16 MS. KORNER: We can try, Your Honour.

17 JUDGE SCHOMBURG: We would appreciate it. Thank you.

18 MS. KORNER: Yes.

19 JUDGE SCHOMBURG: But here, I don't think we need a colour copy.

20 Then the next.

21 THE REGISTRAR: S394, a colour copy was requested.

22 MS. KORNER: Your Honour, I'm told this was -- a colour copy was

23 distributed on the 30th of January and admitted as S394-1B. We've extra

24 copies if anybody wants them.

25 JUDGE SCHOMBURG: This was a --

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1 MS. KORNER: It's the list of --

2 JUDGE SCHOMBURG: Oh, yes. That's right.

3 Then the next, please.

4 THE REGISTRAR: Then in relation to S404 and 405, the articles

5 were to be provided in their entirety, the newspaper articles.

6 MS. KORNER: We have a blip on that one. We may have to get back

7 to you on it. Apparently it's not on our list.

8 THE REGISTRAR: I think at one point the final article was found

9 in the Internet version, but not in the newspaper version.

10 MS. KORNER: I see. I'm told, Your Honour, these came off the

11 Internet, so it's just articles. I'm told - I'm just the mouthpiece for

12 this one - we don't have anything else.

13 JUDGE SCHOMBURG: To be quite clear about this, S404 and 405,

14 Madam Registrar, do we have the entire article in English or in B/C/S?

15 THE REGISTRAR: In English, Your Honour.

16 JUDGE SCHOMBURG: From the point of view of the Defence, is there

17 access through you for Dr. Stakic to the content of these documents?

18 MR. OSTOJIC: At the moment we don't have it in front of us, Your

19 Honour, but we'll stand on our previous objections if we made some on

20 them.

21 JUDGE SCHOMBURG: What would be the next exhibit?

22 THE REGISTRAR: The next two exhibits are Defence exhibits, D50,

23 where the Defence was to provide an English translation based on the

24 transcript.

25 JUDGE SCHOMBURG: May we hear some helpful comments.

1 MR. OSTOJIC: I'm not sure how much help I can assist the Court.

2 But it was our understanding because the document was translated on the

3 transcript, that that would be the official translation of D50. To the

4 extent that was our error in interpretation, we'll from the transcript

5 give the Court the specific translation of D50.

6 JUDGE SCHOMBURG: I think in case you yourself do not feel that

7 it's necessary but make reference to the transcript, and this would be

8 sufficient for you, you shouldn't have an additional burden.

9 MR. OSTOJIC: Thank you, Your Honour.

10 JUDGE SCHOMBURG: If the Prosecution agrees with this.

11 MS. KORNER: We do, Your Honour.

12 JUDGE SCHOMBURG: Then the next, please.

13 THE REGISTRAR: And finally regarding D55, some explanations were

14 to be provided on the handwritten notes appearing on one of the copies and

15 the different -- differences of final translation of this document.

16 JUDGE SCHOMBURG: Mr. Ostojic.

17 MR. OSTOJIC: I would have to take a look at D55 again, Your

18 Honour, and get back to you during the next break to give you a clear

19 answer on that.

20 JUDGE SCHOMBURG: Okay. Thank you. Then I believe there is only

21 one final --

22 MS. KORNER: Well, Your Honour, before you move on, we've got --

23 Ms. Karper has given me a pile of stuff which is a number of revised

24 translations. Well, first of all, we've got the constitution of

25 Yugoslavia, which Your Honours requested on the 28th of February, the

1 1974. We've got a revised translation of S69 and S71 and S157. We've got

2 a B/C/S translation of S370B; an English translation of S371; a better

3 copy of S379; and a revised translation. S388, translation; 389, and so

4 on. So, Your Honour, we've got -- there's the constitution.

5 Your Honour, would it assist if we just hand out the other

6 documents to your legal officer and the registry at the break.

7 JUDGE SCHOMBURG: I think this would be helpful because we still

8 have before us a lot of documents distributed, not yet tendered, by the

9 Defence. I know there had been during the last week some discussions on

10 this issue, but nevertheless I want to come back to this question. What

11 is the intention of the Defence how to proceed, especially in order to

12 avoid that precious courtroom time is wasted by the introduction of some

13 of these documents during the testimony of especially experts. How do you

14 want to proceed with your documents?

15 MR. OSTOJIC: Well, we obviously will proceed in any manner the

16 Court advises us to proceed. We thought we could introduce the documents

17 in a similar fashion as the OTP introduced, but at that doesn't seem

18 sometimes to be working in the manner in which I envisioned. So we can

19 introduce it piecemeal, or as a whole, as a group, whatever way the Court

20 suggests.

21 JUDGE SCHOMBURG: I already suggested, and I crosschecked the

22 transcript, in November last year, that the most appropriate form would be

23 that the parties come together and tell us which documents they agree they

24 don't have any problems with. And then leave it for the Chamber to decide

25 on the remaining documents. And I think this is still the

1 less-time-consuming way of proceeding. If the Prosecution so agrees, we

2 could proceed this way.

3 MS. KORNER: Your Honour, yes. I mean, what happened was that

4 effectively, Dr. Trifkovic sat down, three binders of documents were

5 produced, and in fact Dr. Trifkovic hasn't referred to a single document

6 yet in three hours of evidence, although Mr. Lukic yesterday mentioned --

7 yesterday, Friday, a number of them. At the moment, I have no idea what's

8 in half these documents, although looking at the list, the majority are

9 newspaper articles. The ones that are actually referenced in his report,

10 clearly there would be no objection to them going in. As to what the

11 relevance of the other ones is, other than he looked at them, I'm not

12 sure.

13 JUDGE SCHOMBURG: You know that also related to the exhibits

14 provided by Mr. Donia, on the one hand side, we limited the area both in

15 time and space, but in principle, we admitted these documents where there

16 was no objection by the Defence as SK documents. So there would be

17 nothing against such a package solution, and then asking the Trial Chamber

18 only to rule on those remaining documents where the parties can't agree

19 on.

20 Therefore, I invite the parties, when we have the break now and

21 when -- whilst we are still on standby situation waiting for our witness,

22 to go through these documents, and also together with Madam Registrar,

23 give them provisional exhibit numbers, and then it would be admitted into

24 evidence as a package save those where there is no agreement or where

25 there is not yet an English translation.

1 Can we agree to proceed this way?

2 MS. KORNER: Your Honour, I think it may be better to wait until

3 the expert has completed his testimony. The thing about Dr. Donia was

4 that he was taken through most of these documents in one -- the major

5 ones. So we looked at them. I mean, at the moment, it's a tonne of

6 newspaper articles which I absolutely confess I haven't read through

7 because at the moment I'm not at all that clear that they are that

8 relevant or anything.

9 So I think it may perhaps be better to wait until the expert has

10 completed his testimony. But obviously if we can agree with the Defence,

11 we will. I noticed that in fact the 249 articles or books and articles

12 were then reduced. We were given a separate list I think on Friday

13 morning, a much shorter list of the exhibits that they wanted to put in.

14 So it may be we'll be able to agree to this.

15 JUDGE SCHOMBURG: I can only invite the parties to proceed this

16 way.

17 MR. OSTOJIC: I would just like to say that I'm offended by

18 counsel telling us that she doesn't think it's relevant because the

19 articles relate to the time period much closer to the indictment than any

20 of the articles or submissions that they gave into evidence. And I would

21 just ask that they -- if they don't think it's relevant, it's the Court's

22 decision to say if it's relevant. They don't want to put the whole

23 picture on. We have argued that from day number one. They have had those

24 articles not in November of 2002, they have had them well before and in

25 fact in 1997 because we got the articles from the Prosecution. When we

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1 submitted our exhibit list on the 18th of November, 2002, they did not,

2 although I believe it's their duty --

3 JUDGE SCHOMBURG: Sorry to interrupt. I don't think that we need

4 to argue on these articles now. I think it's only to find out what can be

5 accepted by both parties immediately for the admission into evidence, and

6 then on the rest we will rule.

7 MR. OSTOJIC: If I can just --

8 JUDGE SCHOMBURG: In the same spirit we did in the past.

9 MR. OSTOJIC: Of course. And I appreciate that, Your Honour. But

10 just, I have to make two short brief points on this. I think it will move

11 it along a little faster. All the articles that we wanted, we were not

12 advised that they were already translated by the OTP until several weeks

13 ago, although on November 18th all they did to do was a crosscheck and the

14 translation department certainly wouldn't have had to retranslate them.

15 Secondly, if I may, with respect to all those documents, they are

16 indeed in our opinion relevant and should be admitted. Unquestionably,

17 they are relied upon by our expert. If we want, we will go through in

18 each article and try in some fashion to get them introduced. It's

19 incorrect that we reduced the list to a shorter group anticipating that

20 the Court would reject the totality of those documents. We would request

21 that a certain number of them be specifically introduced as a fallback

22 theory.

23 Our position is clear that we want all the articles in because we

24 believe it fulfills the mandate of the Chamber to get as close to the

25 truth as possible. However, if the Court rejects our request to admit

1 them, we would like certain documents that Mr. Lukic highlighted on

2 Friday, that those be introduced into evidence, but our position is that

3 all them should be introduced.

4 JUDGE SCHOMBURG: So finally, let's hear which articles and which

5 documents are in dispute. Those that are not in dispute should have a

6 provisional exhibit number, and then we are prepared to rule as soon as

7 possible, maybe today, step by step only on the remaining documents. This

8 will facilitate the admission into evidence procedure without wasting

9 time, precious time of our expert.

10 Any other issues to be raised by the parties? Mr. Ostojic.

11 MR. OSTOJIC: Thank you, Your Honour. I'd like to be heard on the

12 Rule 66 motion before the Court delivers its opinion, if I may. I think

13 it's Rule 66 (C) decision that the Court referenced.

14 JUDGE SCHOMBURG: Right.

15 MR. OSTOJIC: May I.

16 MS. KORNER: I'm not sure that Mr. Ostojic has a right to be

17 heard. I have no particular objection, but it's supposed to be an ex

18 parte motion for all its worth. I'm not sure what standing you have to be

19 heard on it, Mr. Ostojic.

20 JUDGE SCHOMBURG: In the moment, I'm also eager to know what can

21 be a submission by a party not being party of this procedure? But please.

22 MR. OSTOJIC: Well, I have two comments to make with respect to

23 the submission. One is obviously the rule we disagree with, although it's

24 the rule, and we will live with the rule as it's set forth, however it's

25 my understanding that there were two submissions to the Court. One, the

1 brief submission with respect to the document, and then the Court followed

2 up and requested a complete group of those documents or statements. We

3 object to the procedure. We object this Court without advising the

4 defendant -- without advising the accused, without advising its counsel

5 what the procedure is and the mechanism that goes on with respect to

6 Rule 66 (C). I object to Rule 66 (C) and having ex parte conversations

7 and sharing with the Court documents that, in the opinion of the

8 Prosecution, may or may not lead so some credible evidence.

9 Secondly, I most definitely object to there being a follow-up

10 conversation and a submission, again without our knowledge, of documents

11 given to the Court once the Court requested that. If the rule is clear

12 that the OTP will submit a certain portion of the document, then that's

13 where it should stand. If that changes, we believe our involvement should

14 be included. If the Court is asking for additional information, then we

15 should be advised of that; not to hear it through the grapevines, as we

16 have. And we object to that procedure and we likewise object to Rule 66

17 (C) although I recognise the objection with respect to the rule is not the

18 proper form here, Your Honour.

19 JUDGE SCHOMBURG: I don't know where your rumours stem from.

20 66 (C) clearly reads, "When making such an application, the Prosecution

21 shall provide the Trial Chamber [but only the Trial Chamber] with the

22 information that is sought to be kept confidential."

23 And to make it quite clear, following the rationale of this Rule

24 (C), it is for the Trial Chamber to defend the interest of the accused at

25 the same time when the accused can't, for the reasons of Rule 66, be

1 present during this explicitly foreseen in-camera meeting. And therefore,

2 it is for this Trial Chamber to take the necessary steps that we have the

3 necessary facts that we can decide on a secure basis. And there is

4 nothing for a party not allowed to participate in these proceedings and to

5 interfere.

6 MR. OSTOJIC: If I may just comment quickly, Your Honour, and I

7 understand that and we accept the Court's position. But it's a fact, it's

8 not a rumour that the procedures as I have indicated occurred. So it's

9 not a rumour, I just don't want to in open session identify quite frankly

10 how that information came to the Defence, but I'd be glad to share with

11 the Court if the Court wishes me to. But it's not a rumour, it's a fact

12 that was shared with us by an officer of the court which we can clearly

13 set forth.

14 MS. KORNER: Your Honour, that's a fact that should never have

15 been shared by an officer of the court. It's unfortunate that it was.

16 The fact remains it's supposed to be a procedure which is ex parte. The

17 only reason the Defence get any notice of it, and they should know nothing

18 of what goes on, unless Your Honour rules that there should be disclosure,

19 is because there was a ruling by Judge Hunt two years ago now in the

20 Brdjanin case where we made such an application, and the Defence had to be

21 notified that such an application had been made and that is it.

22 Mr. Ostojic may not like the rule, but it is a rule, and his remedy is not

23 at this stage of the proceedings.

24 MR. OSTOJIC: It seems that they don't like the rule handed down

25 by Judge Hunt that we have to be given notice of it. If that's the rule

1 as the Court said in his opening remarks. Let's follow the rule. Let's

2 follow them equally. We gladly accept the rules. My point is that the

3 rules suggests the OTP is to give a statement if they want something that

4 they think under the rules should be protected. If there is any further

5 communication and requests by the Court for further documents, I think it

6 takes it outside of Rule 66 (C), and the Defence should then be given

7 another motion by the OTP suggesting that they are now amending or

8 changing or altering their initial request to the Court. But the Defence

9 should be notified of the circumstances surrounding that which involved

10 the accused.

11 JUDGE SCHOMBURG: I'm awfully sorry, but this Trial Chamber

12 doesn't share your view. It's for the Trial Chamber to find out what is

13 necessary to come a ruling under Rule 66 (C). No doubt, you have been

14 sent notice that there will be such a ruling, and we will inform you when

15 there has been such a ruling.

16 Any other issues to be discussed? Then this Trial Chamber stays

17 adjourned in any event until 11.00. If there should be a delay, we would

18 announce it immediately to the parties. The trial stays adjourned until

19 11.00.

20 --- Recess taken at 10.27 a.m.

21 --- On resuming at 11.18 a.m.

22 JUDGE SCHOMBURG: There was a request for closed session. Any

23 objections by the Prosecution?

24 MR. KOUMJIAN: No, Your Honour.

25 JUDGE SCHOMBURG: May we have the additional appearances, please.

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1 MR. KOUMJIAN: Your Honour, for the Prosecution, Nicholas

2 Koumjian, Meline Arakelian and Ruth Karper.

3 JUDGE SCHOMBURG: There is a request also for pseudonym?

4 MR. LUKIC: Yes, Your Honour.

5 JUDGE SCHOMBURG: Then it would be DI for this witness. The

6 witness may be brought in, please.

7 Closed session, please.

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20 The trial stays adjourned until tomorrow, 9.00.

21 --- Whereupon the hearing adjourned

22 at 12.53 p.m., to be reconvened on Tuesday,

23 the 18th day of March, 2003,

24 at 9.00 a.m.

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