1 Monday, 29 November 2010
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.20 p.m.
5 JUDGE FLUEGGE: Good afternoon to everybody in the courtroom and
6 to those watching and listening to our proceedings.
7 At the outset of today's hearing, the Chamber would like to raise
8 two matters.
9 The first is related to the use of court time. Pursuant to the
10 exchanges in court on the 21st of October concerning the estimation of
11 the length of the Prosecution and Defence cases, and an e-mail from the
12 Prosecution of the 22nd of October 2010, the Trial Chamber wishes to give
13 the parties some guidance on the use of court time so as to ensure that
14 the remainder of the Prosecution case proceeds as expeditiously as
15 possible in keeping with Rule 90(F) and(H) of the Rules of Procedure and
16 Evidence and Article 20(1) of the Statute. In particular Article 20(1)
17 of the Statute provides that, I quote:
18 "The Trial Chambers shall ensure that the trial is fair and
19 expeditious and that proceedings are conducted in accordance with the
20 Rules of Procedure and Evidence, with full respect for the rights of the
21 accused and due regard for the protection of victims and witnesses."
22 The Trial Chamber is grateful to both the parties for giving oral
23 indications of the expected length of their respective cases and to the
24 Prosecution for sending an e-mail, informal and confidential e-mail to
25 Chambers and the Defence on 22 October, providing further information on
1 the Prosecution's witnesses, including the time spent on the witnesses to
2 date and estimated times for witnesses to be heard. In this
3 correspondence the Prosecution says that it has erred on the side of
4 allowing time for certain witnesses to take longer than originally
5 anticipated and that it may complete its case before the projected date
6 in November 2011. Pursuant to the analysis conducted by the Trial
7 Chamber on the basis of the information provided by the Prosecution and
8 CMSS, the Chamber also takes this view.
9 By comparing the estimated times for examination-in-chief with
10 the total actual time spent in court, the Chamber believes that a more
11 realistic estimate is one which allows for the Prosecution to finish its
12 case before the summer recess in 2011. That is, on or before the 22nd of
13 July, 2011. The Chamber is confident that, barring any unforeseen
14 circumstances, this estimated completion date is both achievable and
15 appropriate in view of the need for fair and expeditious proceedings.
16 Both parties, and in particular the Prosecution, have on occasion
17 exceeded their estimates and the Chamber will seek to ensure that, as
18 much as possible, this practice be kept to a minimum. The Chamber also
19 requests that the Prosecution review the need for future witnesses in
20 order to avoid duplication of evidence already heard.
21 A huge amount of evidence has been presented so far, not only
22 orally but also pursuant to Rules 92 bis and 92 ter, and the Prosecution
23 may find that some of the future witnesses are superfluous in view of
24 their developing case.
25 The upcoming winter recess provides a suitable time for
2 At the same time, the Trial Chamber has noted that on occasion
3 cross-examination by the Defence has been repetitious. The Defence is
4 therefore invited to consider whether questions for forthcoming witnesses
5 contain repetition and whether the length of cross-examination can be
7 The Chamber notes that it is currently sitting four days per week
8 and deems it essential to maintain this pace. In weeks when, for
9 whatever reason, less than four sittings are to be held, the Chamber will
10 extend the sitting time in order to maintain the equivalent of four days
11 per week. The sitting time will be also extended on occasions when the
12 need arises to finish the testimony of a particular witness on a certain
13 day or before the week's end.
14 While being fully aware of the challenges presented by the need
15 to schedule witnesses at appropriate intervals, the Chamber reminds the
16 Prosecution that reserve witnesses should, whenever possible, be readily
17 available to cater for instances when it uses less than the time
18 estimated for the current witness, thereby allowing the Chamber to start
19 hearing a new witness.
20 As I said in court on the 17th of November, the Chamber
21 appreciated the proposed use by the Prosecution of Tomasz Blaszczyk to
22 ensure the valuable courtroom time would not be wasted, but it is
23 important to ensure that the requirements of the Rules and the
24 established practices and procedures are fully met so as to avoid gaps.
25 The Chamber will periodically monitor the progress of the case and advise
1 the parties of any further measures to be taken if it deems the trial not
2 to be proceeding expeditiously.
3 The parties should always be mindful of the importance of
4 presenting their case as expeditiously as possible, and as a consequence,
5 a party may decide not to call witnesses that they had originally
6 intended to or reduce the length of the examination-in-chief or the
8 The Chamber requests that in February next year, after reviewing
9 the evidence adduced thus far, in light of the expected evidence, the
10 Prosecution specify the future witnesses to be called and give another
11 estimate of the length of the remainder of its case. The Chamber again
12 thanks the parties for their cooperation and looks forward to
13 collaborating with them to achieve the beginning of the summer 2011
14 recess as a target for the end of the Prosecution's case.
15 Now I will turn to another issue and render an oral decision.
16 Through the testimony of the witness Tomasz Blaszczyk, the
17 Prosecution has shown the prime face relevance and probative value
18 required for admission of the Mladic materials by establishing the
19 provenance, chain of custody and corroboration of sampling of the
20 notebooks. In response, the accused has not shown that the materials are
21 irrelevant or that they are so lacking of indicia of reliability so as
22 nod to be probative at all. Furthermore, the accused has not shown that
23 the probative value of the materials is overweighed by the need to ensure
24 a fair trial.
25 For these reasons, the remaining Mladic materials, as listed in
1 the Prosecution's e-mail of 24th of November, will be admitted in their
2 entirety. The determination regarding the weight of the materials will
3 be made at the end of the trial in light of all the evidence.
4 The Chamber hereby instructs the court officer to assign exhibit
5 numbers to these documents via an internal memorandum filed on the case
7 These are the two matters the Chamber wanted to raise at the
8 beginning of today's hearing.
9 I would like to ask the parties if there are other procedural
10 matters to be discussed. Mr. Vanderpuye?
11 MR. VANDERPUYE: Good afternoon, Mr. President, good afternoon,
12 Your Honours and everyone. We don't have any other procedural matters to
13 raise before calling the next witness.
14 JUDGE FLUEGGE: Thank you very much. Before -- Mr. Tolimir, do
15 you want to raise something?
16 THE ACCUSED: [Interpretation] Thank you, Mr. President. I'd like
17 to greet all those present and I'd like to greet Mr. McCloskey as well as
18 his team. May these proceedings be concluded according to God's will and
19 not my own.
20 I wanted to say as following: We did not state our position
21 concerning the material introduced through Witness Blaszczyk because we
22 expected that we would be allowed sufficient time to peruse the documents
23 since we received them on the go, and we believed that that would be
24 taken into account when you carried out your analysis. And otherwise,
25 this Defence did not dispute any of it.
1 JUDGE FLUEGGE: Thank you very much. As you will recall,
2 Mr. Tolimir, the Chamber gives you appropriate time to prepare your
3 cross-examination of Witness Blaszczyk and to review the material we just
4 received as evidence in this case.
5 If there are no other matters, we will call the witness and ask
6 him to come into the courtroom. I apologise -- Mr. Tolimir?
7 THE ACCUSED: [Interpretation] I apologise. I wasn't familiar
8 with your decision. I perhaps missed it during the hearings. I do know
9 that other Defence teams were accorded similar periods of time, so I am a
10 bit unclear on the current situation. Do you want us to deal with such
11 issues as we move along or will we be allocated a separate amount of
13 JUDGE FLUEGGE: Mr. Tolimir, we are at the moment only dealing
14 with your cross-examination of the witness Tomasz Blaszczyk and it is up
15 to you to prepare the cross-examination and you should indicate when you
16 will be ready to commence the cross-examination. All other cases have to
17 be decided by a case-by-case decision. There is no need to discuss
18 anything like this in detail now, I think.
19 [Trial Chamber confers]
20 THE REGISTRAR: Your Honours, just for the record, I'd like to
21 notify the Chamber and everyone that we are going into closed session
22 right away. Thank you.
23 JUDGE FLUEGGE: Before we go into closed session, there was no
24 decision to go into closed session yet. Please open again. That was
25 premature. Perhaps only for some -- for one minute, but we haven't
1 finished yet.
2 THE REGISTRAR: We are back in open session, Your Honours.
3 JUDGE FLUEGGE: Mr. Tolimir, perhaps I misunderstood you. Could
4 you give us an estimation of the time needed for preparation of the
5 cross-examination of Mr. Blaszczyk? What is your time estimation? In
6 other words, how much time do you need before commencing the
8 THE ACCUSED: [Interpretation] Thank you, Mr. President. I will
9 need as much time as the prosecutor used. However, I need more time to
10 study the documents presented here. All Defence teams in other cases
11 received a certain amount of time to study the material that was
12 subsequently disclosed to them, and by the same token, I believe it will
13 be fair to accord the same amount of time to us. Otherwise, we will
14 leave it for the end of the case, because by that time I expect we will
15 have had sufficient time to study it all.
16 JUDGE FLUEGGE: Did I understand you correctly that you need the
17 whole time of the whole case to prepare the cross-examination of
18 Mr. Blaszczyk? Or what is your position?
19 THE ACCUSED: [Interpretation] Thank you. Perhaps I was
20 misunderstood or misinterpreted. What I meant to say is that we will
21 examine Mr. Blaszczyk, we will need for that the same amount of time used
22 by the Prosecution concerning the material that was tendered through him.
23 However, we will need to receive more time, much as was the case in other
24 Defence teams. For example, in the Perisic case, the Defence team
25 received three months. Perhaps I am speaking too fast again and perhaps
1 that's why it wasn't clear before.
2 JUDGE FLUEGGE: You are now referring to other cases. We would
3 like to know your position: How many weeks or months do you need for
4 preparation of cross-examination of Mr. Blaszczyk?
5 THE ACCUSED: [Interpretation] Mr. President, if you give us time
6 to study the material, I can start questioning him immediately
7 afterwards. If we don't receive that time, we will need some additional
8 time later, at the end of the case. I don't see where the
9 misunderstanding is.
10 JUDGE FLUEGGE: Once again, Mr. Tolimir, how much time do you
11 need for preparation? This is the only question. Later on, you will
12 commence your cross-examination after having finished your preparation.
13 That's clear. And you will need some time for cross-examination, but how
14 much time do you require for the studying of the material and for
15 preparation of the cross-examination?
16 THE ACCUSED: [Interpretation] Thank you, Mr. President. I will
17 need at least a month and a half, given that the Prosecutor stated that
18 most of the material has to do with the activities which make part of
19 what they call the joint criminal enterprise, although I'm not fully
20 familiar with the concept, I must admit, and I will need time to study
21 that as well.
22 JUDGE FLUEGGE: Taking into account the upcoming winter recess,
23 would it be appropriate and sufficient for you to have time until the end
24 of January?
25 THE ACCUSED: [Interpretation] If I understood properly, it's 15
1 days in total. My Defence will be here throughout the case, and they
2 haven't been away for a while now and I will have to give them time to go
3 home. However, without them, I cannot study the material since I don't
4 use computers, and there are some other reasons as well. I need to be
5 allocated time to contact my legal representatives, since they may not be
6 in The Hague throughout the period, and, hence, I will need that time
7 when they are here.
8 [Trial Chamber confers]
9 JUDGE FLUEGGE: Mr. Tolimir, it is obvious, and I understand your
10 position, that you need your Defence team for reviewing this material.
11 However, we take into account three weeks of winter recess, the first
12 week after the winter recess we are not sitting, but this is a working
13 period for the Defence team. And for the Prosecution team. Therefore,
14 the end of January would, in fact, mean one and a half months, as you
15 indicated earlier. But I would like to reach an agreement and therefore
16 I would like to know, is the end of January a good time or a certain date
17 later? Can you tell us a time? And I think nobody will have a problem
18 with that, to give you enough and sufficient time for preparation. Could
19 you give us a date? Would mid-February, 15th of February, for instance,
20 be a convenient time?
21 THE ACCUSED: [Interpretation] Thank you, Mr. President. Any time
22 beyond one and a half months is good. However, I don't want to take any
23 days off from my Defence. They should receive the days they have
24 deserved and, in any case, if we set a deadline, I will do my utmost to
25 have studied the material until then.
1 JUDGE FLUEGGE: Mr. Gajic, are you in a position to provide the
2 Chamber with some details of your plans to spend the time until that
3 date? Are you in the position to prepare with your client the
4 cross-examination until mid-February?
5 MR. GAJIC: [Interpretation] Your Honours, first let us try to
6 clarify one thing: I believe Mr. Tolimir is here discussing our free
7 days, days of leave, and not court days. And he's not including the days
8 needed to review the so-called Mladic material. As for mid-February, as
9 you indicated, if we don't sit until then, we will have had enough time
10 to study the material. And immediately following that break accorded to
11 us for the review of material, we could be in a position to cross-examine
12 Mr. Blaszczyk immediately.
13 JUDGE FLUEGGE: This is a new information, Mr. Gajic. The
14 Chamber is not of the view to postpone all hearings until you have
15 prepared your cross-examination. This was not the position of the
16 Chamber yet. Would you say something in addition and then I would give
17 the floor to Mr. Vanderpuye.
18 MR. GAJIC: [Interpretation] Your Honour, I believe that
19 Mr. Tolimir, when he spoke, referred to the days of leave. Perhaps there
20 was a miscommunication somewhere, but that was the point of what he was
21 saying, that, in fact, the number of court days should be freed for us so
22 that the Defence can, in a short period of time, review a large volume of
23 material. And I have to say that this is a very large volume of
24 material, some 20 binders in total. Last time, at the last session, we
25 brought some of those materials with us and, as you could see, we could
1 barely house them here in the space that we have, let alone the time that
2 we need to review them. So we do need some free time so that we can
3 review the material, go through it and see what is relevant and what
4 their probative value is, whether we should question its authenticity and
5 some other issues.
6 JUDGE FLUEGGE: Thank you very much.
7 Mr. Vanderpuye, what is the position of the Prosecution?
8 MR. VANDERPUYE: Thank you, Mr. President. As you indicated, you
9 are right, we don't have much of a vested interest in rushing the Defence
10 through this matter, but I don't think they are being rushed through this
11 matter. They've had this material since April of this year, they
12 received the initial disclosure concerning this material, and then they
13 received the rest of it in June of this year, so I don't think it's any
14 surprise that there is a large volume of material to be reviewed. I
15 don't know, and I haven't discussed with Mr. Gajic or General Tolimir
16 what efforts they've made so far in terms of trying to get through the
17 material, but I think certainly from the time that it was disclosed, or
18 the completed disclosure of the entire collection in June, through -- in
19 April, through February of 2011 should at least provide the accused with,
20 I would say, a ballpark or a relatively fair estimate of the time that he
21 will need to prepare to complete his cross-examination of Mr. Blaszczyk.
22 As the accused mentioned the last time we were in court, I think
23 Mr. Blaszczyk had testified, that he was prepared to at least question
24 Mr. Blaszczyk with respect to certain areas of his testimony, in
25 particular the way the search was carried out, the provenance of the
1 materials in that respect, and the chain of custody. As to the contents
2 of the material, that is where he indicated that he wouldn't be prepared
3 to go forward, and that obviously entails some degree of study of the
4 materials. But we have to keep in mind that Mr. Blaszczyk's testimony
5 fundamentally and principally concerns the authenticity of the materials
6 and the chain of custody, its provenance. As to whether or not -- as to
7 the specific content of those materials, his testimony is limited in that
8 respect in any event. So I don't think that, for the purposes of
9 preparing to complete his cross-examination of Mr. Blaszczyk, that's the
10 same -- or the same amount of preparation is required as to be able to
11 use the materials perhaps in the Defence case or with respect to other
12 Prosecution witnesses. I think those are distinct issues and I think
13 that that should remain clear in terms of the appropriate amount of time
14 that the accused should be accorded, at least in a relatively rough time
15 frame, to be able to get ready to proceed.
16 JUDGE FLUEGGE: Thank you very much. It is really a serious
17 question to discuss, and to decide. The Chamber will consider the
18 positions of the parties and will come back as soon as possible to this
20 Thank you very much.
21 I apologise for the people present in the public gallery. We
22 will hear now a witness, but this witness will be heard in closed
23 session. This is a protective measure to exclude the public from the
24 hearings. I apologise for that.
25 We are now turning into closed session, and after that, the
1 witness should be brought in.
2 [Closed session]
11 Pages 8152-8223 redacted. Closed session.
3 [Open session]
4 THE REGISTRAR: Your Honours, for the record, we are back in open
5 session. Thank you.
6 JUDGE FLUEGGE: Thank you very much. During today's hearing, we
7 have heard in closed session a witness, a protected witness. Now we have
8 to adjourn. First of all I would like to apologise for the whole staff
9 assisting us that we went over time. Thank you for your patience. And
10 we adjourn and resume tomorrow in the afternoon at 2.15.
11 --- Whereupon the hearing adjourned at 7.12 p.m.,
12 to be reconvened on Tuesday, the 30th day of
13 November 2010, at 2.15 p.m.