Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8139

 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

Page 8140

 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

Page 8141

 1     reflection.

 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

 6     reduced.

 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

Page 8142

 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

 7     cross-examination.

 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

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 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

 6     record.

 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.

Page 8144

 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

12     time?

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

Page 8145

 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

 7     cross-examination?

 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

Page 8146

 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

Page 8147

 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.

Page 8148

 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

Page 8149

 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

Page 8150

 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

19     matter.

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

Page 8151

 1     witness should be brought in.

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Page 8152











11 Pages 8152-8223 redacted. Closed session.















Page 8224

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 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.