Page 83
1 Friday, 4 September 2009
2 [Pre-Trial Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.22 p.m.
6 JUDGE HALL
7 Pre-Trial Conference, and I would invite Judge Harhoff, who has been
8 intimately involved with the details of this matter for a long time to
9 take over at this point in terms of leading today's proceedings.
10 Judge Harhoff.
11 JUDGE HARHOFF: Thank you, Mr. President.
12 May I start by asking the Registrar to call the case.
13 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon,
14 everyone in and around the courtroom. This is case IT-08-91-PT, the
15 Prosecutor versus Mico Stanisic and Stojan Zupljanin.
16 JUDGE HARHOFF: Thank you, Madam Registrar.
17 And I would like the parties to present themselves for the
18 hearing today. The Prosecution.
19 MS. KORNER: Good afternoon, Your Honours. On behalf of the
20 Prosecution it's Joanna Korner, Thomas Hannis, and Alexis Demirdjian. In
21 my jurisdiction it is traditional that when there are new Judges the
22 Prosecution says something. Can we say on behalf of the OTP how
23 delighted we are to see Judge Hall and Judge Delvoie, and we hope that we
24 will find the case an interesting one.
25 JUDGE HARHOFF: Thank you very much, Ms. Korner.
Page 84
1 And for the Defence.
2 MR. ZECEVIC: Good afternoon, Your Honours. For Mr. Stanisic's
3 Defence appearing are Slobodan Zecevic, as a lead counsel; to my left is
4 my colleague, Mr. Slobodan Cvijetic; to my right is also my colleague
5 Mr. Eugene O'Sullivan; and our case manager, Tatjana Savic. I would also
6 like to extend my congratulations to the appointment of the Judges to
7 this Tribunal. Thank you very much.
8 JUDGE HARHOFF: Thank you so much, Mr. Zecevic.
9 And for the Defence of Mr. Zupljanin.
10 MR. PANTELIC: Good afternoon, Your Honours. I am Igor Pantelic,
11 lead counsel for Mr. Zupljanin. Next to me is my learned friend and
12 colleague Mr. Dragan Krgovic, my co-counsel; and our legal assistant,
13 Mr. Brent Hicks; and our case manager, Mr. Eric Tully.
14 I also would like on behalf of Zupljanin Defence team to wish a
15 very warm welcome to newly appointed Judges, and we hope that we should
16 have a fair and good trial here. Thank you so much.
17 JUDGE HARHOFF: Thank you so much, Mr. Pantelic, for your warm
18 wishes.
19 And for the part of the Court we would like to welcome everyone
20 in and around the courtroom, and also good afternoon to the two accused,
21 to whom I would like to put the question if they can understand what we
22 say in a language that is being interpreted to them.
23 THE ACCUSED STANISIC: [Interpretation] Yes, we do. Thank you. I
24 do understand.
25 THE ACCUSED ZUPLJANIN: [Microphone not activated].
Page 85
1 JUDGE HARHOFF: Thank you, Mr. Zupljanin. Sorry, I'm not sure
2 that your response was recorded. Can you please tell me again if you can
3 understand what I'm saying. You have to press the button in front of
4 you. There you go.
5 THE ACCUSED ZUPLJANIN: [Interpretation] Yes, I hope that you
6 didn't switch it off now. Yes, you didn't. Yes, I understand you,
7 Your Honour, Judge Harhoff, and I understand everything that's being said
8 and I wish you the best of luck in your work.
9 JUDGE HARHOFF: Thank you. And we wish you a good trial, both of
10 you.
11 Now, we have for the purpose of the Pre-Trial Conference today
12 issued an agenda, which I hope has been distributed to everyone,
13 including the accused. I don't know if they have a copy. They have.
14 And so as you can see there are a few points that are included in the
15 agenda, but before we start the discussions I would like to ask if any of
16 the parties have any other matters which they wish to have included in
17 today's agenda.
18 For the Prosecution?
19 MS. KORNER: Your Honour, I think at this stage on the face of it
20 there's nothing I wish to add. It's simply we're not altogether clear
21 about what some of the headings are going to cover and I think we'll wait
22 and see what's going to be covered.
23 JUDGE HARHOFF: Very good. And of course you may wish any
24 question you have at the end when we get to the end. If there's anything
25 that hasn't been covered of what you wanted to have covered, then please
Page 86
1 raise it at the end.
2 MS. KORNER: Thank you very much, Your Honour.
3 JUDGE HARHOFF: Mr. Zecevic.
4 MR. ZECEVIC: Thank you, Your Honour. We don't have anything to
5 add to existing agenda. Thank you very much.
6 JUDGE HARHOFF: Thanks.
7 Mr. Pantelic.
8 MR. PANTELIC: Not for the moment, Your Honour.
9 JUDGE HARHOFF: Very well.
10 Let's get on with it, then. The first thing we would wish to
11 raise from the Bench is the motion that was filed last night by
12 Mr. Zecevic for postponement of the trial. Mr. Zecevic included limited
13 resources available to the Defence, late disclosure by the Prosecution,
14 and possible violations of a right to a fair trial as the three reasons
15 for which the Stanisic Defence team wishes to delay the opening of the
16 trial.
17 The Chamber should hear the Prosecution's view on this before we
18 render our decision on the Defence motion. If you have a view on this,
19 Mrs. Korner, we would like to hear it right away; otherwise, we would
20 invite you to do in writing very quickly and urgently. Monday, by noon,
21 if possible. But if you can do it orally at this moment it would be
22 good. And I'll tell you the reason why we're pushing forward with this
23 decision is that we want all these matters to be cleared and settled well
24 in advance of the opening of the trial, which is in ten days. And so the
25 sooner we can render this decision the better. The Registrar -- sorry,
Page 87
1 the Registrar has already advised that they would wish to make a
2 submission under Rule 33(B) also by Monday, and the Chamber will then
3 proceed to hand down its decision on Tuesday.
4 So if you can, we would be very pleased if you would present your
5 views either today orally or, at the latest, Monday, midday, in writing.
6 MS. KORNER: Your Honour, can I put it this way: We are not
7 unsympathetic to the problems raised by Mr. Zecevic, of which we of
8 course were not aware as the Prosecution, namely, the lack of resources
9 that he has referred to. We do reject and will answer allegations that
10 it is in any way the fault of the Prosecution, but the length of the
11 motion, Your Honour, as you will see, means that in order to respond
12 properly we will have to put it in writing. But if overall this were to
13 be dealt with on the basis of the resources which Mr. Zecevic has
14 complained about, the Prosecution is not unsympathetic to the problems,
15 we would say that ten weeks which has been asked for is too long, but we
16 would not oppose a shorter adjournment. That is effectively what we'll
17 be saying. But if Your Honours were to be minded to take into account
18 and look at the various allegations that are being made that this is any
19 way the fault of the Prosecution, then we will have to put in a full
20 reply.
21 Your Honours, Monday is really very soon, but we are dealing with
22 endless motions at the moment which have been coming our way. And to be
23 able to respond fully, if that's what Your Honour wants, we would
24 certainly ask for Tuesday.
25 JUDGE HARHOFF: Thank you, Mrs. Korner. I think the view of the
Page 88
1 Chamber is that, you know, we wouldn't require you to respond in any
2 length. I think we understand the gist of your response. If you wish to
3 add anything to what you have said, you can do so briefly by Monday, but
4 I think the earlier we take the decision the better. And to postpone it
5 much beyond Tuesday, I think, is simply not wise. Let's get clear of
6 this issue as soon as we can so that we are ready at the latest by
7 Tuesday --
8 MS. KORNER: Yes.
9 JUDGE HARHOFF: -- to know whether or not we will go to trial
10 next week --
11 MS. KORNER: Yes. Your Honour, can I add this: In particular
12 the reason that we're, as I say, not objecting in principle to a shorter
13 adjournment, apart from Mr. Zecevic's and his team's problems, is that at
14 the moment we still -- we don't know yet what form our evidence is going
15 to take in the sense of who will be a 92 bis, who will be a 92 ter. And
16 therefore, to that extent, say an adjournment of a week or two weeks,
17 would probably assist us because then we'll be able to work on the ruling
18 that we're given. So can I just add that as well.
19 JUDGE HARHOFF: Certainly. So you may decide over the weekend
20 whether you wish to add anything in writing, but if you do so then --
21 MS. KORNER: Yes.
22 JUDGE HARHOFF: -- the order is set for Monday.
23 MS. KORNER: As I say, Your Honour, what we don't want is for the
24 suggestion to remain on the record unanswered by us, that the delay is
25 through the fault of the Prosecution.
Page 89
1 JUDGE HARHOFF: We have understood that. Thanks.
2 The next issue that we thought we should address head on is the
3 overriding issue of the time and the number of witnesses that will be
4 available to the Prosecution at trial. The Chamber has considered the
5 issue very carefully and we have included a number of considerations in
6 our deliberations, such as the official functions of the two accused; the
7 number of counts, charges, in the indictment; the gravity of the crimes;
8 the number of victims; the number of municipalities and the geographical
9 scope of the indictment, it's about 20 municipalities which is a large
10 part; the time span, nine months in 1992, covered by the indictment; and
11 of course the right of the accused to a fair and to an expeditious trial
12 as well as the Prosecution's right to be given adequate time to present
13 its evidence.
14 The Prosecution has asked for 292 hours net to present its
15 evidence. To this number the Chamber would have to grant at least the
16 same number of hours for Defence to cross-examine. And as you know, the
17 practice here is that we would then on top of that have to add another
18 20 per cent for procedural matters, questions by the Judges,
19 re-examination, and other such things. That would bring us up to all
20 together - I can't remember how much - but the length of the trial would
21 be depending on the fact that the Prosecution's case will then take
22 approximately a year if that were to be granted.
23 The Prosecution has also called or sought to call 162 witnesses
24 and to present those witnesses -- present the evidence from those
25 witnesses in one or another form during those 292 hours which they have
Page 90
1 applied for. As I said, the Chamber has very carefully examined these
2 numbers and taken into consideration the factors that I lined out just a
3 while ago.
4 During the pre-trial stage of the case, I as the Pre-Trial Judge
5 announced that I would suggest to the Trial Chamber 180 hours, and this
6 was following earlier and intense discussions which we had at the 65 ter
7 meetings for trying to see if it was possible to narrow down the scope of
8 the Prosecution's case. In spite of my many recommendations and before
9 me the earlier Pre-Trial Judge's invitations to the Prosecution to
10 delimit the scope of the case and despite numerous assertions by the
11 various Prosecution teams that they would indeed do so, it seems to me
12 that what has in effect happened is that the number of hours and the
13 number of witnesses had at least sometimes been increased.
14 In any case, be that as it may, I return to now what the
15 Chamber's determination of the number of hours and the number of
16 victim -- witnesses should be. The Chamber is unanimous in its order
17 that the Prosecution be given 212 hours. This would bring us to Easter.
18 In fact, we had seen if it would be possible to adjourn a week or two
19 before the Easter holiday, but we wanted to give the Prosecution as much
20 relief as we could. So the number of 212 hours is final and that will
21 bring us to just before the Easter break - I think it is on
22 1st of April, 2010 - and this calculation is done by using the method
23 that I described just a while ago, that the Prosecution has 212 hours,
24 the Defence will all together be given the same amount of time,
25 212 hours; and then we add the 20 per cent for procedural matters and we
Page 91
1 end up approximately at 508 or 509 hours all together for the
2 Prosecution's presentation of its evidence. This does not, as I have
3 included earlier, cover time for opening and closing arguments. That is
4 added.
5 So there it is: 25 weeks you have to present the evidence in
6 your case.
7 As for the number of witnesses, we have gone through each and
8 every single statement that the Prosecution has submitted to us and we
9 have looked at most of the material that pertains to these witnesses. We
10 have noticed that a number of the statements and the testimonies given by
11 some of these witnesses appears to be really very repetitive or
12 redundant, as you might say. This is why we suggest that the Prosecution
13 once again, in light of the number of witnesses which we will allow,
14 reconsider the witness list to see if it is possible to knock off some of
15 the witnesses whose testimony or statements or whose evidence would
16 appear to be redundant. We will order the Prosecution to bring
17 131 witnesses. And we -- in doing so, we are careful not to try and
18 control the Prosecution's case. So we will not seek to tell you which
19 witnesses you should knock off, but if I can use a few examples just for
20 your illustration, I will say that in your witness list as far as the
21 92 bis witnesses are concerned - and those are the witnesses who will not
22 appear ordinarily in court live but whose testimony or whose statement
23 will be admitted on paper only - the Prosecution has proposed I think
24 it's about 35, 92 bis witnesses.
25 If we look at the list and we read the statements of the 92 bis
Page 92
1 witnesses who are sought to be admitted for Brcko, it would be our view
2 that the evidence to be offered by Witness ST1 and ST2 seems to us to be
3 really overlapping, repetitive, and redundant. We suggest, but it's
4 not -- it's just an example that we give you in order to show you how we
5 have arrived at the number of 131 witnesses, we would suggest that you
6 knock off either ST1 or ST2, but you don't need to bring both of them.
7 The same, for instance, just to take another example of the 92 bis
8 witnesses which you have proposed for Ilijas, the evidence offered by
9 Witness ST4 and ST51 again appears to us to be redundant. We would
10 suggest you consider knocking off either one or the other but don't bring
11 both of them. Similarly for the 92 bis witnesses that are suggested for
12 Pale, what Witness ST56 [sic], 60, and 61 have to say seems to us to be
13 very overlapping. Why don't you consider knocking off either one or
14 both, or two of the three.
15 These are examples, Ms. Korner, and I don't want to be seen to --
16 I don't want you to understand that the Chamber is in any way - please
17 sit down - interfering with the way that you should put together your
18 witness list. But we give you some reasons why we have arrived at this
19 lower number.
20 For the 92 ter group, we have identified at least 10,
21 11 witnesses whose testimony appears to be subsumed either in what you
22 have proposed as adjudicated facts or, more importantly, more
23 importantly, by the testimony of other witnesses. So here again in our
24 view there is ample room to reconsider if you want to bring all of these
25 witnesses or can reduce your witnesses -- witness list by a number.
Page 93
1 As for the viva voce, we also have looked at it and some of the
2 witnesses appears -- appear to us to be not necessary, some because
3 it's -- their testimony appears to be irrelevant to the case, some
4 because it's repetitive, and particularly in relation to -- this goes for
5 at least six, seven of the witnesses that you have proposed to call
6 viva voce, and particularly in relation to ST107 and ST201 and ST158. We
7 don't think that their evidence is relevant at all. It doesn't concern
8 any material in the case. And we would suggest you knock them off. I'm
9 unaware of whether any protective measures applies to these witnesses. I
10 don't think so, but I would not state their names. But you have the
11 pseudonyms.
12 So all together this leads us to the assumption that the
13 Prosecution could, without suffering any harm to their case, easily knock
14 off some 35, 40 witnesses from their list, and thus that brings us down
15 to the number of 131 witnesses that we have suggested.
16 It goes without saying, but I'm -- this is not an invitation to
17 apply for -- to apply for addition of more time or inclusion of other
18 witnesses on your list at a later stage, but of course this opportunity
19 remains open anyway. But we would say that the Prosecution can, without
20 any harm to its case, present the evidence in 212 hours through the
21 testimony of 131 witnesses in this case. So that is the decision.
22 MS. KORNER: Your Honour, just before Your Honour moves on, in
23 respect of the 92 bis witnesses, of course 92 bis means they won't be
24 called to give evidence and therefore no time is used up by their
25 evidence. And Your Honour has suggested, however, that we should be
Page 94
1 dispensing with some witnesses, examples of which have been given. If it
2 doesn't affect the time, then I'm not quite clear, even though I
3 appreciate what Your Honours say, why we should be removing witnesses
4 which obviously we've included because we think they're important for an
5 issue. That's the only question I'm raising at this stage.
6 JUDGE HARHOFF: I suppose your question relates to the 92 bis
7 witnesses?
8 MS. KORNER: Yes, only to the 92 bis. I understand the others
9 that Your Honour is suggesting.
10 JUDGE HARHOFF: Our suggestion for the 92 bis witnesses,
11 Mrs. Korner, is put forward to you out of the simple principle that the
12 Prosecution, and the Defence when it comes to their case, are bound to
13 focus their case and only bring the necessary evidence. So in our view,
14 you don't have to bring, even if it's on paper, you don't have to bring
15 the evidence of four or five witnesses if they all say the same thing.
16 92 bis witnesses anyway are witnesses that are corroborating other oral
17 evidence typically. So they are in the lower end of the evidence chain
18 anyway.
19 MS. KORNER: Yes.
20 JUDGE HARHOFF: So even though we are fully aware of the fact
21 that of course they don't take up any time, we still don't think that you
22 need to bring them. Focus your case. That's what we are asking.
23 MS. KORNER: I imagine -- I wanted to hear what Your Honour's
24 reasoning behind that was.
25 And, Your Honour, can I take it that the limitation on hours and
Page 95
1 witnesses has been taken notwithstanding the motion that we filed on the
2 31st of August in respect of why we felt this --
3 JUDGE HARHOFF: No, no, that has been taken into consideration.
4 Now, on the basis of these findings - you may sit down -- do you
5 understand -- do you have more to say?
6 MS. KORNER: No, I haven't. Thank you, Your Honour.
7 JUDGE HARHOFF: I'm inviting you to sit down.
8 MS. KORNER: I'm standing while you're talking.
9 JUDGE HARHOFF: No, you don't have to.
10 On the basis of these findings, we would invite -- or order --
11 sorry, order the Prosecution to file its revised final witness list by
12 noon on the 10th of September, which is Thursday, next week. So you have
13 a couple of days to reshuffle and put forward a final revised witness
14 list.
15 MS. KORNER: Your Honour, that -- can I say that we would prefer
16 to have more time to consider what is a really important matter from the
17 point of view of the Prosecution. One of the difficulties that we've had
18 is that as yet we have no clear idea, if any idea, of what the issues in
19 the case are likely to be from the Defence responses to the pre-trial
20 brief, as we made clear. To ask us by the 10th of September, before we
21 start the trial, to remove 40-odd witnesses is, in our view, something we
22 would prefer to have considerably more time to look at, and in particular
23 where we've got viva voce witnesses. 10th of December [sic], we would
24 respectfully submit, is too soon, in particular with everything else that
25 we have to deal with that has come in from the Defence, as we made clear.
Page 96
1 JUDGE HARHOFF: I understand your point. Now, the Defence, on
2 their side, they need to be put on notice before the trial starts who are
3 the witnesses that are going to come. Now, I will consult with my
4 colleagues whether we can find a middle way perhaps to say that you have
5 to indicate at least the first 20 witnesses for the -- that will enable
6 the Defence to prepare at least for those -- the first batch of witnesses
7 and then you may supply the remaining witnesses towards the end -- after
8 that, if you understand what I mean.
9 MS. KORNER: Absolutely, Your Honour. We're perfectly prepared
10 to do that and will do that. Can I say that we've already indicated who
11 the first two witnesses are, but one of the reasons why - can I put it
12 this way? - matters are becoming complicated in this trial is that
13 recently a motion has been filed objecting in full to the first two
14 witnesses in this case because they're experts and it's alleged they're
15 not experts.
16 [Trial Chamber and Legal Officer confer]
17 JUDGE HARHOFF: Right. Mrs. Korner, I understood that the -- or
18 maybe I should address myself to the Defence. The objection that you
19 have raised against the two first witnesses, expert witnesses, I think
20 it's Robert Donia and Christian Nielsen. Is that correct? Your
21 objection against Nielsen was that his reports or his latest reports
22 hadn't been translated into B/C/S yet. So the indication from the
23 translation services, CLSS, was that this couldn't be done until sometime
24 in November, I think.
25 MS. KORNER: It's being disclosed, Your Honour, this week.
Page 97
1 That's not the objection. The objection is they're not experts. There's
2 a huge motion, I don't know whether Your Honour has seen it, which came
3 from Mr. Zecevic a couple of days ago.
4 JUDGE HARHOFF: Please, Mr. Zecevic, you better explain to me.
5 MR. ZECEVIC: Very shortly. It is indeed the case that we filed
6 a motion. It's a motion filed on the 31st of August, it's Mico Stanisic
7 supplemental filing in response to the Prosecution's filing on proposed
8 experts in response to the Prosecution supplemental motion for admission
9 of the evidence of experts pursuant to Rules 94 bis, 92 bis and 92 ter.
10 THE INTERPRETER: The counsel is kindly asked to slow down.
11 MR. ZECEVIC: I'm sorry. I'm sorry. I extend my apology to the
12 translators.
13 Evidence of experts pursuant to Rules 94 bis, 92 bis and 92 ter
14 with confidential annexes. It was filed 31st of August, 2009.
15 There are two different categories of the experts. We have
16 objected to five experts, namely, Mr. Christian Nielsen, Patrick Treanor,
17 Dorothea Hanson, Ewan Brown, and Ewa Tabeau. Among other things, our
18 objection is based on the fact that all these five are the employees of
19 the Prosecution and they're working in the Prosecution team. That is --
20 that goes for these five experts.
21 In respect of Robert Donia and other experts of the Prosecution,
22 like Dr. Riedlmayer, Robert Donia, and so on, our objection was on the
23 supplemental filing of their expert report. We didn't question their --
24 their ability to present -- to appear here as experts. We were just
25 commenting and objecting to the late disclosure of their supplemental
Page 98
1 expert reports. So there is a difference between the two categories of
2 the experts in our filing.
3 So therefore, if I may conclude, it -- in practice it means that
4 we are objecting on Mr. Robert Donia introducing his supplemental expert
5 report, but we are not objecting for him appearing here on his original
6 report. On the other hand, we are objecting to Mr. Christian Nielsen for
7 the reasons why we -- which we stated in our motion. I hope I have been
8 of assistance to the Trial Chamber.
9 What I'm trying to say is that therefore the suggestion that this
10 is aimed at the prolongation and -- of the start of the trial is not --
11 is not right.
12 [Trial Chamber confers]
13 JUDGE HARHOFF: Thank you, Mr. Zecevic.
14 As I understand, your objection against Donia is that basically
15 the supplement was filed so late that you didn't have a chance to take it
16 into account; is that correct?
17 MR. ZECEVIC: That is exactly the case, Your Honours, plus that
18 that part of the report we received the translation, as my learned friend
19 from the Prosecution said, just yesterday, yes.
20 JUDGE HARHOFF: So you received only the last part of it
21 yesterday? Sorry?
22 MR. ZECEVIC: Yeah -- well, this supplemental report which was
23 received which we objected to was received only in English. We received
24 the translations only yesterday of that part of the report of Mr. Donia,
25 but we objected to it anyhow as a late disclosure, yes.
Page 99
1 JUDGE HARHOFF: And when did you receive the supplement in
2 English?
3 MR. ZECEVIC: Let me just -- please bear with me, Your Honour.
4 I believe it was couple of weeks ago. I cannot -- at this moment
5 I cannot find the right date, but my colleague will try to find it.
6 MS. KORNER: We're checking. We think it was in July sometime,
7 but we're just checking.
8 JUDGE HARHOFF: Mr. Zecevic, thanks for this. And can I just, to
9 be sure, ask you your objections against Christian Nielsen was -- other
10 than the fact that the English -- the B/C/S translations came in only
11 yesterday, other than that do you have any other objections against
12 Nielsen?
13 MR. ZECEVIC: Yes, Your Honour. The objections against
14 Mr. Nielsen are contained in our motion --
15 JUDGE HARHOFF: Yes, that he was a former OTP employee,
16 that that's -- yes.
17 MR. ZECEVIC: Yes, that he was a former OTP employee and some
18 other objections which you will see from the arguments in our motion.
19 JUDGE HARHOFF: Yes.
20 MR. ZECEVIC: But as far as Mr. Nielsen is concerned, there was
21 no problem with the translation of his report. It has been disclosed
22 some time ago. It is the other question concerning translation with
23 Mr. Nielsen. It is the problem that we are facing with the CLSS in
24 translation of the Defence documents, which we would like to show during
25 the cross-examination. But I believe that's point 7 on the agenda, but
Page 100
1 if Your Honour -- if it pleases the Court we can discuss it right away.
2 JUDGE HARHOFF: We'll come to that --
3 MR. ZECEVIC: Okay.
4 JUDGE HARHOFF: Point 7. Thanks.
5 MR. ZECEVIC: Thank you.
6 JUDGE HARHOFF: Yes, Mr. Pantelic.
7 MR. PANTELIC: Just to assist my learned colleague and also
8 Trial Chamber, actually we are speaking about the supplement part of
9 Dr. Donia report, not Mr. Nielsen. So actually we received only English
10 translation of Dr. Donia report, and only yesterday we received B/C/S
11 translation, which of course, Your Honour, in accordance with the Rules
12 and the well-established case law here, it's out of the standards for
13 disclosure because we have to confer with our clients. We have to get
14 instructions, and so on. So just for the record this is a case for
15 Dr. Donia report, not Mr. Nielsen. Thank you.
16 JUDGE HARHOFF: No, I have -- the Chamber has fully understood
17 that as for Donia, it's the translation into B/C/S of the supplement, and
18 for Christian Nielsen it's the other way around, it's the translation
19 into English of some of the documents that the Stanisic Defence wishes to
20 put forward during cross-examination.
21 MR. ZECEVIC: Your Honours, I -- we just identified when it was
22 filed by the Prosecution. It is the Prosecution's supplemental motion
23 for admission of the evidence of experts pursuant to Rules 94 bis,
24 92 bis, and 92 ter with confidential annexes dated 14 of August. Thank
25 you very much.
Page 101
1 MS. KORNER: Sorry, Your Honour, can I -- it was disclosed to the
2 Defence in English on the 8th of July, 2009.
3 JUDGE HARHOFF: Yes.
4 MS. KORNER: Your Honour, may I return to -- I don't know what
5 decision Your Honour's taken, but Your Honour can see that, at the
6 moment, with matters as they stand and with the number of motions we
7 still have to deal with, we ask that Your Honours don't ask us to make a
8 major decision, such as the removal of 40 witnesses from our list, at
9 this stage. We will certainly provide advance notice at the very least
10 immediately of the first ten witnesses we propose to call subject to
11 rulings on the various motions to preclude the evidence.
12 And the second matter is this, Your Honour, Your Honour says we
13 need to remove 92 bis, 92 ter, et cetera, and we still don't know which
14 they are.
15 JUDGE HARHOFF: Ms. Korner, that's exactly what the Chamber did
16 not say.
17 MS. KORNER: I beg your pardon. Your Honour suggested that there
18 were witnesses --
19 JUDGE HARHOFF: The Chamber invited you to re-draw your witness
20 list so as to end at a total number of 131. Now, if you wish to have all
21 those 131 witnesses as 92 bis witnesses you can do so. If you wish to
22 have all of them as viva voce, you can do so. We just provided you with
23 a few examples in order just to illustrate how the Chamber had reached
24 its conclusion as to the number of 131 witnesses.
25 MS. KORNER: Yes.
Page 102
1 JUDGE HARHOFF: So you can put together the witness list any way
2 you wish, but there is, as I have indicated to you, room for weeding out
3 repetitive evidence in all three categories.
4 MS. KORNER: Yes. Your Honour, may I just add one other thing
5 because it's really a question of -- it's the relationship of witnesses
6 and hours. Once we know which witnesses we may call through the
7 procedure 92 bis, in other words, not have them here for
8 cross-examination, likewise 92 quater, you can't cross-examine them, but
9 whether those are admissible, then of course it at least gives us the
10 beginnings of to know where to start.
11 JUDGE HARHOFF: I appreciate that, and I apologise for omitting
12 the one part of our decision, namely, that all the 92 bis witnesses that
13 you have proposed can, in our view, be called as 92 bis witnesses. They
14 all fulfil the requirements, and so in respect of the Defence objections
15 to it that part is overruled. We find that the -- that the 92 bis
16 witnesses can be called, except -- except two -- yes, sorry, I was too
17 quick. There are, in fact, two of the witnesses on your proposed 92 bis
18 list that, in our view, do not meet the requirements, that is, ST56 and
19 ST68. Both of their statements seem to go to the acts and conducts of
20 the accused, and they should therefore be called either ter or viva voce.
21 Sorry. But is it clear to you that, apart from these two witnesses, all
22 the proposed 92 bis witnesses can be called as paper witnesses or can be
23 introduced into evidence.
24 MS. KORNER: Thank you, Your Honour. That's very helpful. Does
25 the ruling also apply to those we suggested should be 92 ter or is there
Page 103
1 no ruling on that yet?
2 [Trial Chamber and Legal Officer confer]
3 JUDGE HARHOFF: You see, Mrs. Korner, the difficulty we have is
4 that until we have seen your final list we are unable to rule. So would
5 it really be impossible for you to come down by next Thursday?
6 MS. KORNER: [Microphone not activated].
7 THE INTERPRETER: Microphone, please. Microphone for Ms. Korner.
8 MS. KORNER: -- Rules allowed us to do, but this one is really
9 difficult. I wouldn't ask otherwise, and I say that because everybody is
10 at the moment engaged with dealing with motions. I'm personally dealing
11 with the opening. To decide to remove 40 witnesses at this stage is a
12 major undertaking and one which we would respectfully ask Your Honours to
13 give us more time to consider.
14 JUDGE HARHOFF: I'll have to consult.
15 [Trial Chamber confers]
16 JUDGE HARHOFF: Okay. What we will do is that we will move on to
17 some other subjects on the agenda, and then the Bench will deliberate on
18 the issue during the break. I think we are bound to have the first break
19 at quarter to 4.00. Is that correct? Very well. So that's what we'll
20 do.
21 But now that we are on the issue of the 94 bis experts, I also
22 wanted to clarify the position of the Chamber on this issue because we
23 have seen that the Prosecution on its list of witnesses has presented all
24 the experts except one, I think, as 92 bis witnesses.
25 MS. KORNER: I think bis/ter, or whatever, but certainly a
Page 104
1 limited examination-in-chief.
2 JUDGE HARHOFF: Whatever the reasons may -- thank you. Whatever
3 the reasons may be for this, the Chamber is nevertheless of the view that
4 an expert is an expert. And experts are dealt with under Rule 94 bis,
5 and so that's the way we would want you to classify them. We are simply
6 unsure of the advantages that you may see -- we are very well aware of
7 the two different interpretations that are currently roaming in this
8 Tribunal about how to present the expert's evidence, but this Chamber,
9 you may say, is inclined to take a more conservative approach on this
10 matter. Experts are experts and they should be presented under the Rule
11 for experts which is Rule 94 bis.
12 MS. KORNER: Yes. Your Honour may recall that some time ago we
13 had a discussion in a rather more informal, I think 65 ter, meeting about
14 the presentation of experts and documents. And can I make it clear what
15 we propose to do, for example, with Dr. Donia, who, I think I'm right in
16 saying, has testified 14 times in various trials - I see
17 Mr. Demirdjian - well, approximately, was to present his reports to the
18 Trial Chamber, as it were, a bulk and then deal with him I believe we
19 said for three hours to highlight some of the aspects of his combined
20 reports so that the reports would go in as exhibits and he would, as it
21 were, expand a little on some of the matters. Rather than calling him in
22 full. This is why we say we were doing it as a sort of 92 bis/ter --
23 JUDGE HARHOFF: But, excuse me, Mrs. Korner, if I read Rule 94
24 correctly, that's exactly what Rule 94 says --
25 MS. KORNER: Yes.
Page 105
1 JUDGE HARHOFF: -- that you admit the report and then you -- the
2 gentleman or the woman, the lady can be called for cross.
3 MS. KORNER: Yes, but it -- what it says is 92 -- sorry, 92,
4 94 bis (A):
5 "The full statement and/or report of any expert witness to be
6 called shall be disclosed within the time-limits ..."
7 Can I just mention, inter alia, because Mr. Pantelic raised this,
8 we were never prescribed any time-limits for experts' disclosure.
9 The opposing party shall file a notice indicating whether it
10 accepts or wishes to cross-examine or challenges the qualification --
11 well, that's one of our arguments, Mr. Zecevic's motion is completely out
12 of time. But -- and then goes on to say:
13 "If the opposing party accepts the statements and report of the
14 expert witness, the statement and/or report may be admitted into evidence
15 without calling the witness ..."
16 Now, at the moment we still haven't gotten a ruling on that
17 either. The Defence have objected to the report and statement being
18 admitted, and where -- I'm simply outlining to Your Honours that in
19 anticipation that we wouldn't get a ruling saying that the statement
20 could be admitted in the teeth of the Defence objections, that was how we
21 proposed to do it.
22 JUDGE HARHOFF: Thank you, Mrs. Korner. We are coming back to
23 the same issue that we -- it's difficult for the Chamber to issue any
24 ruling unless and until we have seen your list of witnesses. As a
25 general principle, I can indicate that as far as the experts are
Page 106
1 concerned or is concerned, the fact that the experts have been or are at
2 the moment employees of the Prosecution, according to this Bench, does
3 not prevent them from appearing as experts before the Chamber. So in
4 that respect the Defence objections is -- are overruled.
5 We'll get back to the issue of Christian Nielsen when we come to
6 point number 7, but I know that various Chambers have taken various
7 approaches exactly on the issue of whether someone who is or has been an
8 employee of the Prosecution can appear as an expert. And the only thing
9 I can say is that this Chamber does not see that issue as something that
10 prevents the person in itself from appearing as an expert. You may
11 challenge his expertise or her expertise by his or her qualifications,
12 but the mere fact that they have been or are employed by the Prosecution
13 does not per se render them unqualified to appear as experts.
14 MR. ZECEVIC: Your Honours, if I may say --
15 JUDGE HARHOFF: I think, actually, it was Mr. Pantelic who rose
16 first.
17 MR. PANTELIC: Thank you, Your Honours. Just a short reply to
18 Prosecution submission. As usual, Prosecution is not respecting rules
19 and orders by Trial Chamber, I mean in this particular case, and I'm just
20 referring to the dead-line which was the 31st of July. In accordance
21 with Rule 66(A)(ii) and then just for the record that was the dead-line
22 that was -- I had in mind when I make a reference to the late disclosure
23 of B/C/S transcripts and not to mention the principle of fairness and
24 fair trial because we have to confer with our client. They are not
25 English speakers. They are learning, very hard, but still they cannot
Page 107
1 follow, you know, all what is said in expert report. Thank you very
2 much. Just for the record, Your Honour.
3 JUDGE HARHOFF: Mr. Zecevic.
4 MR. ZECEVIC: Your Honours, if I may just briefly, our motion is
5 much more, it covers much more aspects of the testimony of these five
6 employees of the Office of the Prosecutor. So it is not only the fact
7 that they are members of the team -- of the Prosecution team. So in that
8 respect I would kindly ask the Trial Chamber to review the -- our motion
9 before you decide on that because it's -- I don't think it's -- it is
10 appropriate that it's overruled in this manner when it's just a part of
11 the motion of our arguments.
12 JUDGE HARHOFF: Mr. Zecevic --
13 MR. ZECEVIC: With all due respect, of course.
14 JUDGE HARHOFF: Thank you. I think you may have misunderstood
15 me.
16 MR. ZECEVIC: I'm sorry.
17 JUDGE HARHOFF: I was trying to make clear that --
18 MR. ZECEVIC: As a general --
19 JUDGE HARHOFF: -- among the reasons which you have advanced in
20 objection against the Prosecution's proposed experts, one of the reasons
21 that you have advanced is that they are or have been on the Prosecution's
22 payroll. What I said that was in respect of this matter, of this issue
23 alone, this Bench is of the view that the fact that someone has been
24 employed or still is employed with the Prosecution is not in itself, that
25 fact alone, something that would prevent that person to appear as an
Page 108
1 expert before -- and I specifically added that you may still of course
2 challenge the expertise of the person and suggest that this person,
3 wherever he is employed, is anyway not qualified as an expert. And that
4 is what we will consider.
5 MR. ZECEVIC: I understand, Your Honour. I'm sorry for creating
6 confusion. It was just my misunderstanding.
7 JUDGE HARHOFF: May I, while we are in the business of witnesses,
8 Mrs. Korner, also just remind you that the statements that we have been
9 able to find in the material that you have given to us for ST49 and ST46
10 [sic], we couldn't find the English versions. I'm sure they exist, but
11 it was not disclosed at least to us.
12 MS. KORNER: [Microphone not activated].
13 THE INTERPRETER: Microphone, please.
14 JUDGE HARHOFF: Sierra Tango 49 and Sierra Tango 64.
15 MS. KORNER: 64.
16 THE INTERPRETER: Microphone for Ms. Korner, please.
17 JUDGE HARHOFF: They only appear in B/C/S and we would like to
18 see them also in English. And we suggest that you provide --
19 MS. KORNER: [Microphone not activated].
20 THE INTERPRETER: Microphone for Ms. Korner, please.
21 MS. KORNER: Sorry. Did you say 64 or 46? It's coming up as 46
22 but I though you said 64 just then.
23 JUDGE HARHOFF: Sorry, I start again. The first one is ST 049,
24 the other one is ST064.
25 MS. KORNER: Thank you. Sorry to interrupt, Your Honour.
Page 109
1 MR. ZECEVIC: If I may interrupt now --
2 JUDGE HARHOFF: Just a moment, because I just wanted to ask or
3 order the Prosecution to provide those statements in English at the same
4 time-limit that we are striving for, Thursday, next week, at noon,
5 Thursday, the 10th of September.
6 MS. KORNER: [Microphone not activated] -- sorry. Your Honour, we
7 can provide those, I would think, on Monday morning without any
8 difficulty at all.
9 JUDGE HARHOFF: Great. But we're trying to bundle all the
10 time-limits together. Thanks.
11 MR. ZECEVIC: Your Honours, if I may, I'm just wondering on what
12 basis is the Trial Chamber receiving the Rule 66 material from the Office
13 of the Prosecutor.
14 JUDGE HARHOFF: Because we've ordered it.
15 MR. ZECEVIC: I understand, but I don't think that's provided for
16 in the Rules of Procedure and Evidence. It refers to 92 --
17 JUDGE HARHOFF: It is material that -- sorry. It is material
18 that is coming along with the 92 bis statements.
19 MR. ZECEVIC: Oh, it wasn't clear for me if it's 92 bis. Thank
20 you.
21 JUDGE HARHOFF: Right.
22 It seems also from our review of the material that Annex C to the
23 supplemental motion of 17th July [sic] under Rule 94 bis was not included
24 in the CD-ROM that came our way, so if you could be good enough to also
25 provide us with that annex and on the same time-limits, Thursday,
Page 110
1 10th September, by noon.
2 [Trial Chamber and Legal Officer confer]
3 JUDGE HARHOFF: Right. Thank you.
4 I'm just being reminded by our Legal Officer that in the
5 beginning of this hearing either I may have misspoken or it was
6 understood incorrectly, the three 92 bis witnesses which we thought were
7 repetitive and redundant in relation to Pale municipality and for which
8 we suggested that you knock off two of them and only keep one, the three
9 witnesses that we thought could be considered in this respect was ST57
10 and ST60 and 61, and apparently in the transcript it reads 56 which was
11 an error, either by me or by some -- but I apologise for that.
12 MS. KORNER: Your Honour, can we -- just on the question of
13 Annex C, do you mean the supplemental motion of the 17th of August? It
14 reads 17th of July in the transcript.
15 JUDGE HARHOFF: 17th August.
16 MS. KORNER: 17th August.
17 JUDGE HARHOFF: Sorry for this.
18 Let me move on to the next issue, point 5 on the agenda, which is
19 the Prosecution's motion to amend the indictment's schedules. As I
20 recall, on 9th June, this year, we invited the Prosecution to review the
21 schedules of the indictment with a view to considering the removal of
22 certain incidents where the degree of participation of the police forces
23 was uncertain based on the best evidence that were to be -- that could be
24 found. And you did so, indeed, on 20th July, where you filed a motion
25 seeking to remove seven of the incidents from Schedules B, C, and D. And
Page 111
1 I don't recall any objection made by any of the Defence teams on this
2 matter. And so we just wanted to hand down our decision on this matter
3 and to grant your motion, and order you to file an updated indictment on
4 that same bundle day of Thursday, 10th of September, if that is possible.
5 The next issue on our agenda is the procedural guide-lines, and
6 the Chamber has at various occasions announced that we would issue such
7 guide-lines because we think that it is extremely helpful for both
8 parties and for the Chamber during the proceedings. We have undertaken a
9 major study and taken all of the existing guide-lines because in each
10 trial they appear to be different, so we have taken all of them and
11 sought to pick out the best provisions in all of them, and thus provided
12 brand new, fully updated, new set of guide-lines, procedural guide-lines,
13 which should include the best of what is available in all of them. And
14 we have copies made to hand out to the parties today. We apologise that
15 we were unable to disclose this to you, as we had indicated, earlier on,
16 but we actually just finalised it this morning.
17 So if the usher would be good enough to hand it around.
18 And we thought that the best way of doing it was simply to issue
19 it - please go ahead - issue it as an order and then the procedural
20 guide-lines would appear as an annex to the order -- to the decision,
21 sorry. That's why on the top of the document it appears as an annex. It
22 is going to be an annex to a decision to be rendered early next week by
23 the Chamber to put these procedural guide-lines in place.
24 We have sought to include in these procedural guide-lines the
25 suggestions made by both parties and we hope that they will satisfy your
Page 112
1 expectations.
2 We shall now move to the hard issue of disclosure and
3 translation. My suggestion is we take the break now and we reconvene in
4 30 minutes in order to, then, finish the remaining part of the agenda
5 today, because I'm afraid that the discussion on disclosure and
6 translation will probably last more than the remaining ten minutes we
7 have before the break.
8 So if that is acceptable to the parties, I suggest we adjourn now
9 and reconvene at five minutes past 4.00.
10 MS. KORNER: Your Honour, is Your Honour -- Your Honours
11 intending to use this opportunity to discuss the question of when we
12 should provide the witness list with the removal of witnesses?
13 JUDGE HARHOFF: That is what I indicated, yes.
14 MS. KORNER: Can I just say one more thing on that. I appreciate
15 that you, Your Honour, have had a long time on this case, but even so, at
16 the beginning of the case it's sometimes quite difficult to see with
17 clarity what the issues are likely to be and what is likely to be more
18 important than -- what piece of evidence is likely to be more important
19 than another. And what may on the face of it appear to be irrelevant or
20 evidence that's not necessary doesn't always pan out that way.
21 The second matter is this: Your Honour, we have to deal with the
22 response to the application by the Defence to appeal Your Honours' ruling
23 on the exclusion of witnesses, we have to deal with the expert side of
24 things, and Your Honours now ordered us, if we want to, on Monday, to put
25 in a response to the Defence application for an adjournment. So there
Page 113
1 are a number of substantial matters that have to be dealt with. So I
2 would simply ask Your Honours once again reconsider saying that it must
3 be by Thursday that we reduce our witness list.
4 JUDGE HARHOFF: That is understood.
5 We will adjourn and reconvene at five minutes past 4.00.
6 --- Recess taken at 3.37 p.m.
7 --- On resuming at 4.19 p.m.
8 JUDGE HARHOFF: Thank you so much. And please excuse us for
9 having kept you waiting. We went through some hard deliberations during
10 the break.
11 MR. ZECEVIC: If I may.
12 JUDGE HARHOFF: Mr. Zecevic.
13 MR. ZECEVIC: Just a minute of court time.
14 Your Honours, last week we were told at the 65 ter that the
15 Chamber would appreciate observations from the parties on the
16 guide-lines. Is it still the case or ...
17 [Trial Chamber confers]
18 JUDGE HARHOFF: We had taken into consideration the observations
19 made by -- both from the Prosecution and the Defence, so we thought, you
20 know, that that's it.
21 MR. ZECEVIC: No, but it was suggested that we will receive the
22 draft and then we will give the -- give our observations on the
23 guide-lines.
24 [Trial Chamber confers]
25 JUDGE HALL: Well, may I inquire as to whether there is
Page 114
1 something that -- now that you have seen it, something that we perhaps
2 may have not taken into consideration that we ought to have taken into
3 consideration? Well, because the -- we thought that we had incorporated
4 all of your views.
5 MR. ZECEVIC: I understand, Your Honours, but I quickly went
6 through the guide-lines and, for example, the point 26 it says that the
7 calling party will have only one hour for examination-in-chief of a
8 witness heard pursuant to Rule 94 bis, which is the expert witness.
9 I believe our colleagues asked -- or in their 65 ter list there
10 is -- their experts are two and more hours suggested to take them through
11 the examination-in-chief. And also in -- it is my understanding that the
12 experts are to assist the Trial Chamber, and therefore I don't think
13 that -- I might have a problem with the imposing of one -- one-hour limit
14 for the expert because -- I mean, that's -- just on top of my head, of
15 course, and I'm sorry.
16 JUDGE HARHOFF: Thanks, Mr. Zecevic, and I appreciate your
17 concern for the Prosecution.
18 MR. ZECEVIC: No, no, that's -- well, there is a Defence case
19 after that and we are calling our experts as well.
20 JUDGE HARHOFF: Let me provide you with some of the thoughts that
21 went through the Chamber's heads when we drew up this scheme. The
22 principle in Rule 94 bis is that the calling party presents the expert's
23 report. That is the basic substance of the expert evidence.
24 Now, the other party can then indicate whether they accept the
25 expert witness as an expert and whether they accept his report or her
Page 115
1 report; and if they don't, they can call the expert witness for
2 cross-examination. That's the system. So in principle, the rule doesn't
3 foresee that an expert be examined in chief. Now, the practice of this
4 Tribunal is that very frequently the experts are, indeed, examined in
5 chief.
6 Please.
7 And we looked actually at all the experts that the Prosecution
8 has sought to call to see how long time they were examined for in chief
9 in other cases before this Tribunal. And there is obviously a difference
10 between the expert witnesses -- between the time for which the expert
11 witnesses were examined in chief.
12 Those expert witnesses who normally provide general background
13 are, in fact, only examined in chief normally in this case by the
14 Prosecution because we looked at the Prosecution's expert witnesses --
15 only examined in chief by the Prosecution for an hour or two, some even
16 less, right down to I think one expert report -- expert was examined in
17 chief only for 16 minutes. Whereas the experts who provide -- experts to
18 the substance of the case, such as military experts or experts in other
19 fields other than general background information, that they tend to be
20 examined for a much longer time in chief by the Prosecution.
21 On that information we thought that it was wise to set out a
22 general rule, according to which the calling party would have one hour to
23 present the expert, to give a little background about his or her
24 curriculum vitae, and possibly to introduce some of the documents that
25 pertain to the report, because in the tail of each expert report there's
Page 116
1 always a number of other documents that follow. So we would provide the
2 calling party with time to introduce the witness, to introduce those
3 supplementary documents that go with it, but that's basically it; and
4 then we would expect the other party to cross-examine. And for each
5 expert witness we would then set the maximum time for -- in this case for
6 the Defence for its cross-examination of the expert witnesses.
7 Now, we are fully aware of the fact that people such as, for
8 instance, Robert Donia might -- that the Prosecution might wish to
9 examine him in chief for a longer time, which is why in the procedural
10 guide-lines we then said, Okay, if the Prosecution wishes to deviate from
11 this general rule, it can apply for leave. And so we thought it was --
12 the better system is to simply set down a general rule, which is one hour
13 for the calling party, and then if for any good reason the calling party
14 can convince the Chamber that it is necessary for the benefit of the
15 Chamber itself - because we are the ones who benefit from the testimony
16 of the experts - if we would like actually to have the calling party lead
17 the evidence -- lead the witness through his report at a -- you know, in
18 an extended time we would grant that. But otherwise, if we were able to
19 read and understand the expert report, we don't see any reason why the
20 calling party should have more time.
21 So it's -- it boils down to the issue of whether the Chamber is
22 immediately able to appreciate the evidence that is given in the expert
23 report. If we think that we can understand it, we can grasp it, then we
24 don't see any reason why the calling party should have more than an hour.
25 If, on the other hand, we find that the information provided in the
Page 117
1 expert reports is such that we have a difficulty simply in understanding
2 what this is about, then of course we would expect the calling party to
3 use more time in introducing the expert report through the expert.
4 That's the reasoning behind this.
5 MR. ZECEVIC: I understand and I'm very grateful to Your Honours
6 for this explanation. I'm sorry I somehow missed that part that upon
7 showing a good cause the Chamber might reconsider it and give more time.
8 Thank you very much. I appreciate that.
9 JUDGE HARHOFF: Thanks.
10 Now let me turn to the issue upon which we have deliberated in
11 the break. We took a number of decisions in the break. The first and
12 the most radical decision is that we will stick to the opening of the
13 trial by Monday, the 14th of September. So we are not convinced by any
14 of the arguments that has been given to us today that we cannot start the
15 trial on Monday, the 14th of September.
16 Having said that, we then considered the issue of the witness
17 list. It is, in our view, crucial that the final witness list is given
18 to the Chamber and to the Defence ahead of the start of the trial. We
19 really and fully appreciate the difficulties explained by Mrs. Korner as
20 to why it is going to be very difficult to present its list.
21 Nevertheless, we have ourselves just very recently, during the last week
22 and a half, been through that exercise. So we have done it ourselves.
23 We know at least a bit about what it takes to go through the evidence and
24 we were able to do it.
25 Now, the Prosecution, of course, is in a much better position to
Page 118
1 evaluate each of the witnesses because you know the witnesses, we don't.
2 We only have them as names on a piece of paper, but we have been through
3 all the statements and all the testimonies and most of the documents and
4 we could do it. So we think that -- although we understand it might be
5 difficult, we think that you can and that you should do it as well. So
6 please provide us with a list of the witnesses by Thursday at noon, next
7 week.
8 Coming then to the issue of the order of witnesses, the
9 Prosecution has indicated that it wishes to begin by Robert Donia and
10 then have Mr. Christian Nielsen called as the second expert witness. We
11 notice that the B/C/S version of the recent supplement provided by
12 Robert Donia was only offered to the Defence very recently in B/C/S. And
13 as far as we read Rule 66(A)(ii), it seems to us that that material has
14 to be disclosed in B/C/S. So there is no doubt about whether or not we
15 could dispense with the B/C/S. That material has to be provided in B/C/S
16 to the Defence.
17 Now, we also note that despite the fact that it has to be offered
18 in B/C/S, the report was, in fact, given in English to the Defence in,
19 was it, July sometime. And we think that the Prosecution could perhaps
20 have foreseen that there was an issue of translation, because as far as
21 we have been informed - and you may correct me if I'm wrong - that report
22 emerged from Dr. Donia as early as in April for the purpose of
23 presentation in Karadzic. That may not be correct, but --
24 MS. KORNER: May.
25 JUDGE HARHOFF: In May?
Page 119
1 MS. KORNER: Yes. And we received a copy in June and went
2 through it and then disclosed on the 8th of July when we read the report.
3 So effectively we disclosed as soon as we'd had a chance to consider what
4 was in it.
5 JUDGE HARHOFF: I accept that.
6 Now, the option is the following. As for Donia, first of all,
7 Donia has been accepted as an expert in numerous other trials before this
8 Tribunal, and this Trial Bench accepts his status as an expert. I don't
9 need to go into the reasons why we do this. We can always get back to
10 that, but his expertise and his curriculum vitae supports his quality as
11 an expert.
12 However, the issue of the lack of translation into B/C/S does
13 pose a problem. So the only way forward that we can think of is that we
14 start with Donia and then we ask the Defence - and you can introduce him
15 either in one hour or by our leave in more time if you wish - and then
16 the Defence will cross-examine him but only on the basis of his -- I
17 think his first report. He only has one previous report of his -- of the
18 reports that have previously been submitted to the Defence. And then we
19 call him back at a later stage when the Defence has had a chance to
20 familiarise itself with the contents of the Karadzic supplement. So you
21 understand what I'm proposing?
22 MS. KORNER: Yes, I do.
23 JUDGE HARHOFF: That we would begin -- because I -- we also
24 appreciate the fact that you have lined up now for having Donia as your
25 first witness. In the ideal world we would push him down until after the
Page 120
1 time when the Defence would have had sufficient time to review the
2 Karadzic supplement, but in order to accommodate you in your order of
3 witnesses, we will go along with allowing you to bring him as the first
4 witness but then we would have to cut him off and then call him back in
5 order to allow the Defence to cross-examine him, then, on the basis of
6 the Karadzic supplement.
7 MS. KORNER: I understand --
8 JUDGE HARHOFF: Either that, or, as you wish, you knock him off
9 now and you find another witness.
10 MS. KORNER: Well, Your Honour, the next witness is -- and -- is
11 Christian Nielsen, and that again is --
12 JUDGE HARHOFF: I'm coming to Mr. Nielsen.
13 MS. KORNER: Yes.
14 JUDGE HARHOFF: But these are in relation to Donia the two ways
15 forward that we can see. It's perhaps not very practical, but that's the
16 only way we can do it.
17 As for Nielsen, we discussed what the legal status really is.
18 The Defence has announced that it needs to have, I don't know,
19 470-something documents presented to Dr. Nielsen when he's here and
20 called as an expert. And should I add that we also accept
21 Christian Nielsen as an expert. So when he's called you will
22 cross-examine him on the basis of his reports, and then during that
23 cross-examination you will wish to confront him with a big number of
24 documents that at the moment only exist in B/C/S and are being
25 translated. We're also told that the completion of the translation of
Page 121
1 all these documents is not likely to have been finalised until the end of
2 November, if I'm correctly informed.
3 So that means that allowing Dr. Nielsen to appear as an expert
4 before you have been able to have all these documents translated into
5 English so that he can read them wouldn't make much sense. So we would
6 then probably suggest -- and let me just confer with my two
7 colleagues ...
8 [Trial Chamber confers]
9 JUDGE HARHOFF: What we had in mind, Mr. Zecevic, was that we
10 could perhaps begin with Nielsen the same way as we have suggested for
11 Donia. We could open the examination -- the cross-examination of
12 Dr. Nielsen on the basis of his previous statements, and then once we
13 have all the translations ready we can call him back. But that's why I
14 wanted to ask you, Mr. Zecevic, if that would make sense to you. Are you
15 able to -- would it make sense to begin the cross-examination of
16 Dr. Nielsen before we have all the 470-something documents translated
17 into English? Or would you insist that we simply don't begin with
18 Nielsen before we have everything in English?
19 MR. ZECEVIC: Your Honours, the -- first of all, we objected to
20 Mr. Nielsen at -- as -- appearing as expert in the first place, so we
21 expect that we will receive the decision on that. Now --
22 JUDGE HARHOFF: Sorry, may I just correct you. You have just
23 received the decision, the decision on Donia and Nielsen by this Chamber
24 is that they are both accepted as experts.
25 MR. ZECEVIC: Yes, but, Your Honours, you're separating -- we
Page 122
1 actually objected to five of the expert witnesses. What is the status
2 of -- what would be the status of those expert witnesses?
3 JUDGE HARHOFF: We will render our decision on the remaining
4 experts at a later stage, but because the Prosecution has indicated that
5 they wish to start out with Donia and Nielsen we thought it was urgent to
6 indicate right away opposition on these two experts. The position on the
7 remaining experts, whether they can be accepted as experts or not, will
8 follow very soon.
9 MR. ZECEVIC: But I would hope that we receive that in writing,
10 Your Honours.
11 JUDGE HARHOFF: Sure.
12 MR. ZECEVIC: Oh, okay, thank you very much.
13 Now, as concerning Nielsen, if the case is that he will be
14 appearing as a witness, I think probably the best -- the best solution
15 would be that he's the -- our colleagues conduct the cross-examination
16 and then the -- I mean the direct examination, I'm sorry, and then the
17 cross-examination is conducted once we have the documents. Because I --
18 in all fairness, I don't think it makes much sense that first the Judges
19 will not be able to understand the documents because they are not in
20 English or one of the working languages of this Tribunal, neither our
21 colleagues from the Prosecution side, nor the witness -- or to a certain
22 extent at least.
23 Now, what we are -- I think that's probably the best solution
24 since Mr. Nielsen is in the building at --
25 MS. KORNER: [Microphone not activated].
Page 123
1 MR. ZECEVIC: Oh, I'm sorry -- I'm sorry -- well, yeah -- but in
2 that case I think that is the way how we can proceed, that he's called
3 back and then we can do the cross-examination once we have the documents
4 and then we can proceed on that basis. That is --
5 JUDGE HARHOFF: Thank you.
6 MR. ZECEVIC: I'm trying to be helpful. Thank you very much.
7 JUDGE HARHOFF: And you are indeed being very helpful and I thank
8 you for that.
9 MR. ZECEVIC: Thank you very much.
10 JUDGE HARHOFF: So, Mrs. Korner, the situation is this: You can
11 choose either to call Donia right away and then halfway through we'll
12 have to send him back, and then we'll re-call him in a couple of months.
13 And as for Nielsen, the Defence has agreed that you can start out
14 with the introduction of him and whatever examination you wish to do
15 within an hour or, by our leave, more time, and then again for him also
16 we'll have to cut him off when you're through with that so as to allow
17 for the Defence to introduce -- to begin their cross-examination upon
18 reception of the English versions of the documents.
19 MS. KORNER: Yes.
20 THE INTERPRETER: Microphone, please.
21 MS. KORNER: Two things, Your Honour. The first is, although
22 it's not the most desirable way of proceeding, we accept that
23 Your Honours ruled that that's what's going to happen, so we will call
24 Dr. Donia and then Mr. Nielsen -- Dr. Nielsen. The reason, I think, is
25 because effectively for Your Honours to understand the evidence to be
Page 124
1 called you have to see the context particularly through Dr. Nielsen.
2 Can I just direct Your Honours, first of all, to Rule 14, Rule --
3 sorry, guide-line 14.
4 JUDGE HARHOFF: Yes, please, Ms. Korner.
5 MS. KORNER: Your Honour, as we understand the ruling, the
6 cross-examining party doesn't have to provide copies of the documents
7 it's going to use until the witness is actually being sworn, made the
8 solemn declaration. That may be all very well in some cases, but to
9 receive 432 witnesses -- documents only at the moment the witness goes
10 into the witness box, admittedly in this case because of the gap we'll
11 have slightly more time to look at it, may cause some problems, not only
12 to the Court but obviously to the Prosecution. If these are documents
13 we've never clapped eyes on before in our life, we have no idea whether
14 they're admissible or not, what they are, and we don't get them until the
15 moment the witness comes into the witness box and then has a limited time
16 to give evidence in chief, we're straight into cross-examination, and
17 nobody's had the chance to look at the documents.
18 So I'm merely flagging that up, if I may, as a rule that
19 Your Honours may want to -- as a guide-line that perhaps might be
20 flexible, if I can put it that way.
21 In respect of the time allowed, can I deal with that
22 straightaway. We would ask for more time than one hour for both
23 Dr. Donia and, in particular, Mr. Nielsen. Perhaps less so with
24 Dr. Donia, although we'd worked on the basis that we would have three
25 hours to highlight some of the major aspects of things. With Mr. --
Page 125
1 Dr. Nielsen, I keep -- I must beg his pardon for this, we put down seven
2 hours. We will reduce that, but we would certainly wish to have at
3 least -- Mr. Hannis, I think, is in a better position - three hours for
4 him.
5 JUDGE HARHOFF: So three hours for both?
6 MS. KORNER: Three hours for both, yes -- for each of them,
7 sorry, for each of them.
8 [Trial Chamber confers]
9 JUDGE HARHOFF: I think we will wish to have a look at, again,
10 the reports as we know them by now, but -- and we will hand our ruling
11 hopefully by Monday.
12 MS. KORNER: Yes. Can I just say in respect of Dr. Nielsen, I
13 know Your Honours have had a look at it, it's a very, very dense report
14 indeed and you may well be assisted by hearing from him a little longer
15 than an hour.
16 JUDGE HARHOFF: We had him in mind when we established the system
17 that we have here in the procedural guide-lines.
18 MS. KORNER: Oh, and I'm so sorry. The third witness is likely
19 to be Mr. Treanor. He's also on the -- the list of witnesses -- experts
20 to whom the Defence object and --
21 JUDGE HARHOFF: Patrick it is?
22 MR. KORNER: Patrick Treanor.
23 JUDGE HARHOFF: There are two Treanors.
24 MS. KORNER: Dr. Treanor, yes. Not the other Treanor,
25 Dr. Treanor. Again, Your Honours, we would be grateful for a ruling in
Page 126
1 respect of him, whether Your Honours accept him as an expert as well.
2 JUDGE HARHOFF: Thank you, Mrs. Korner. You will get our ruling
3 next week.
4 MS. KORNER: Oh, yes, I'm helpfully reminded by Mr. Smith, our
5 case manager, whom I completely forgot to introduce to Your Honours, I'm
6 very sorry about that, that if there's no cross-examination of Dr. Donia
7 or Christian Nielsen, then he's likely to be on very quickly, in fact,
8 possibly in the first week, Mr. Treanor -- Dr. Treanor.
9 JUDGE HARHOFF: Right. I understand. We're -- we will hear --
10 Dr. Donia will be the first witness to appear and he will then appear on
11 Wednesday; is that correct?
12 MS. KORNER: Yes. Your Honours, I don't think -- said -- gave
13 item 2 was the -- item 3 was time for opening statements, but
14 Your Honours are going to give me Monday and Tuesday sessions.
15 JUDGE HARHOFF: We agreed at the 65 ter meetings that you would
16 use up all of Monday and half of Tuesday's session for --
17 MS. KORNER: Possibly a little longer.
18 JUDGE HARHOFF: And then if the Defence wishes to provide any
19 preliminary response, then we can do that for Tuesday.
20 MR. ZECEVIC: No, Your Honours, the Defence for Stanisic will
21 reserve that right for the beginning of the Defence case. Thank you very
22 much.
23 JUDGE HARHOFF: That's what I thought.
24 Pantelic?
25 MR. PANTELIC: Same position with Zupljanin Defence. Thank you.
Page 127
1 JUDGE HARHOFF: I understand.
2 Well, that's it then. Donia will appear Wednesday, I can't
3 remember whether it's Monday morning or -- Wednesday morning or
4 afternoon, as the first witness, and he will --
5 MS. KORNER: [Microphone not activated] -- on Thursday -- thank
6 you. Dr. Nielsen is the second on Thursday and then that would mean
7 Mr. Treanor on Friday -- Dr. Treanor on Friday. If we're sitting five
8 days that week, I can't remember.
9 MR. ZECEVIC: I'm sorry, I might have missed something, but it
10 was my understanding that your ruling was that Mr. Donia will be
11 cross-examined on the basis of his first report and not on the basis of
12 the supplemental report and only will be re-called to be cross-examined
13 and present the supplemental report. So therefore it might be that he is
14 in -- he goes into Thursday as well. So just --
15 JUDGE HARHOFF: I fully agree and I was just about to --
16 MR. ZECEVIC: Thank you.
17 JUDGE HARHOFF: -- to say exactly that; namely, that if the
18 Defence wants to begin its cross-examination of Dr. Donia on the basis of
19 his previous reports but not, obviously, on the basis of the Karadzic
20 supplement, then the Defence is free to do so. And my understanding, if
21 I understand you correctly, Mr. Zecevic, is that you will indeed wish to
22 begin your cross-examination of Dr. Donia on the basis of his previous
23 material --
24 MR. ZECEVIC: Well, we haven't consulted, but I -- I'm -- as far
25 as the Stanisic Defence at least, because I haven't had time to consult
Page 128
1 with my colleagues, the Stanisic Defence will definitely conduct the
2 cross-examination of Dr. Donia on the basis of the first report. Yes,
3 thank you.
4 JUDGE HARHOFF: That makes perfect sense. Thank you.
5 For the purpose of assessing how much time we would need for
6 Dr. Donia, Mr. Pantelic, can you indicate at this point whether you also
7 would wish to begin your cross-examination of Dr. Donia already at this
8 point or would you reserve your bullets for his re-appearance?
9 MR. PANTELIC: Your Honours, Dr. Donia's report doesn't have any
10 relevance to my client and especially this supplement for Karadzic
11 because my understanding is that it covers Sarajevo area which is
12 absolutely irrelevant to my client. Regarding the option for
13 cross-examination, I must confer with my learned friends from Stanisic
14 Defence so that we could possibly arrange or re-arrange our way of
15 cross-examination and the timing. And then we can accordingly inform the
16 Chamber about exact time. Thank you.
17 JUDGE HARHOFF: Thanks.
18 MS. KORNER: I'm so sorry, Your Honour, before we leave that --
19 the wonders of e-mail. The experts that we've been talking about are
20 witnesses in other cases, one of which is going on at the moment. I've
21 had a request that came up in the Stanisic/Simatovic case, too, in a
22 different context, that Your Honours make a ruling that other trial teams
23 may speak to the witnesses in between examination-in-chief and the cross,
24 if it's to be delayed or, for example, in Dr. Donia, he still awaits
25 cross-examination. Because the normal rule is, of course, that you can't
Page 129
1 talk to a witness until he's concluded his evidence.
2 Can I just raise that with Your Honours to consider.
3 JUDGE HARHOFF: Yes.
4 MS. KORNER: I know that the Trial Chamber in the
5 Stanisic/Simatovic case is dealing with -- grappling with the same
6 problem.
7 JUDGE HARHOFF: Right. Where is Dr. Donia at the moment? Is he
8 here?
9 MS. KORNER: No, no, no, no, he's in the United States.
10 JUDGE HARHOFF: Thank you. We'll consider it.
11 We still have one hot issue to debate under point 7 of the
12 agenda, and that is the joint Defence motion to preclude the witnesses
13 and exhibits that came in late. We have grappled with that issue for
14 quite some time, and our position is this: Ordinarily the final witness
15 lists and the final list of exhibits according to Rule 65 ter should have
16 been submitted along with the pre-trial brief, and we assume that that
17 had taken place. That's the way we read the rule, 65 ter (E).
18 When at the subsequent 65 ter meeting which we held with the
19 parties we discovered that still disclosure was ongoing, we then hurried
20 to issue a new decision, saying that the Prosecution would have to submit
21 its witness list and its list of exhibits by 31st July, and that -- and
22 that would be according to Rule 66(A)(ii), and that the Prosecution would
23 be required to seek the Chamber's leave in case any disclosure of this
24 material would have to be made after that date. I think this was clear
25 and there is no other way to read it in the transcript of that 65 ter
Page 130
1 meeting.
2 We then met again in the 65 ter meeting in August, after the
3 recess, I think it was the 24th of August, and there the Defence drew our
4 attention to the fact that disclosure was still ongoing. And by the
5 Prosecution's own admission, some 74 documents apparently had still not
6 been disclosed for a number of reasons. We then asked the Prosecution to
7 specify exactly the reasons why this had not been done and which
8 witnesses it would affect in case the Trial Chamber were to find that
9 because of the late disclosure this material could not be admitted into
10 evidence.
11 In your response that came last week, I think, you said that in
12 fact it was not 74 documents, it was only 50 documents and that, in your
13 view, the Defence would not suffer any prejudice from the late disclosure
14 of this material mainly because of the fact that you were not intending
15 to make any use of it anyway. So you did not intend to include those
16 50 documents in your 65 ter list of exhibits anyway. That's what --
17 that's how we understood it.
18 Now, if we resume the entire story of this issue of late
19 disclosure, the Chamber's view is that by virtue of my decision as
20 Pre-Trial Judge some time in July, I think it was the 8th of July,
21 7th of July, I can't remember --
22 MS. KORNER: 8th of July.
23 JUDGE HARHOFF: 8th of July. By virtue of that decision,
24 31st of July was set as the final date, implying that disclosure on the
25 8th of June and thereafter until the 31st of July would be regarded as
Page 131
1 timely. So the Defence point that 30 new witnesses had been introduced
2 in the witness list along with its pre-trial -- along with the
3 Prosecution's pre-trial brief on 8 June was too late because it -- many
4 of those witnesses could actually have been chosen and indicated to the
5 Defence much earlier. The Chamber's view is that, although the Defence
6 might think and that might perceive that six weeks ahead of trial is very
7 short time to familiarise itself with a great number of new witnesses and
8 a great number of new exhibits, all amounting to some 20 per cent of the
9 total material, if we understand that correctly, although this may seem
10 to the Defence to be too short, nevertheless that is according to the
11 rule.
12 And as it turned out, the next and the final date that was set,
13 namely, the 31st of July, in fact turned out also to be exactly six weeks
14 before the start of the trial, which is why, to come to my conclusion,
15 that we will regard as timely all disclosure that was made prior to the
16 31st July, including the 30 new -- 39 new witnesses and the great number
17 of documents that came in.
18 This leaves us, then, with what to do with the 50 documents that
19 came in after 31st July. The Chamber's view here is that because of the
20 fact that the Prosecution failed to apply for leave to have these things
21 disclosed, we would ordinarily exclude it. That was our initial opinion,
22 that simply you had failed to apply, and had you applied you would
23 probably have been given leave but you didn't, so whatever came after
24 31st July, we're sorry, cannot be admitted.
25 Now, that of course is made redundant by the fact that you didn't
Page 132
1 even seek to have it included in the 65 ter list. So what's the point of
2 excluding it if it weren't going to get into the 65 ter list anyway?
3 However, we also had to look at the question of whether by the late
4 disclosure the Defence would in any way be prejudiced, and looking at the
5 documents we found that some of it did attract some attention. Some of
6 the proofing notes, for instance, I think -- even though the Prosecution
7 would not intend to make any use of it, I would imagine, not having seen
8 the documents so I don't know what we're talking about, but I imagine
9 that at least some of the proofing notes might be something that the
10 Defence would have an interest in seeing and possibly also the other --
11 some of the other documents.
12 For this reason we have come to the conclusion that, for these
13 50 documents, the question is whether the late disclosure of them impacts
14 on the Defence's possibility to cross-examine the witnesses that pertain
15 to these 50 documents. And since we found that the Defence might
16 possibly suffer some prejudice by having only late access to these
17 materials, our determination at this point before we have heard the
18 parties - and we are now asking the parties for their submissions, oral
19 submissions, that is - our inclination is that we would postpone the
20 calling of those witnesses to whom the 50 documents pertain for a period
21 of two months, which is a little more than the six weeks otherwise
22 required.
23 So this -- the position of the Chamber is that because of the
24 possible prejudice that the Defence might suffer from the late disclosure
25 of the post-31st July documents, we would order the Prosecution not to
Page 133
1 call any witness to whom this material pertains before expiration of a
2 period of two months from today. But before we take this decision we
3 would like to hear the Prosecution and the Defence's views on this
4 because we don't know just how many witnesses we're talking about. And
5 so if I can ask Mrs. Korner to indicate the number of witnesses that will
6 be affected and which witnesses.
7 MS. KORNER: Your Honour, can I say, first of all, that there are
8 a number of different items relating to different witnesses. Does
9 Your Honour have the schedule attached to the back of our filing?
10 It's -- it was filed on the 2nd of September.
11 JUDGE HARHOFF: We have it now. Thank you, Mrs. Korner.
12 MS. KORNER: If Your Honour looks at the first page of
13 Confidential Annex A, Witness ST019 is likely to be an early witness, but
14 what was not disclosed has absolutely no bearing at all on any of the
15 evidence he's going to give or any issue in this trial. And indeed,
16 there -- the documents not disclosed vary from witness to witness. And a
17 blanket ruling such as that, Your Honour, may have problems. I can't at
18 the moment because we can't work out --
19 JUDGE HARHOFF: Let me be more clear, then, Mrs. Korner.
20 MS. KORNER: Yeah.
21 JUDGE HARHOFF: What we're saying is that if, for instance, the
22 proofing note of a witness lies among the 50 late documents, in that case
23 we don't think that it would be proper to call that witness until such
24 time as the Defence has had ample time to look at it and to study it, and
25 we just suggest two months from today.
Page 134
1 MS. KORNER: Right.
2 JUDGE HARHOFF: So --
3 MS. KORNER: It's proofing notes?
4 JUDGE HARHOFF: It's proofing notes or statements or any other
5 document that goes directly with the witness. I mean, I understand that
6 some of the documents were also transcripts from domestic proceedings.
7 MS. KORNER: Yes.
8 JUDGE HARHOFF: So if a witness has given a statement before a
9 national court in Serbia or in Bosnia or elsewhere, well, that witness
10 you have to hold back until two months from today.
11 MS. KORNER: Yes, well, Your Honour, can I --
12 JUDGE HARHOFF: So proofing notes, statements, and other such
13 direct material.
14 MS. KORNER: Absolutely. In that case, Your Honour, at the
15 moment can we reserve our submissions until we try to work out whether
16 this would affect any witnesses that we were likely to call in the early
17 stages?
18 JUDGE HARHOFF: Yes. Can we have an indication as to when you
19 would provide us with that information? Thursday next week?
20 MS. KORNER: No, no, no. As soon as we've worked it out. It
21 affects 32 -- these documents affected 32 witnesses.
22 JUDGE HARHOFF: In a direct fashion?
23 MS. KORNER: No, in a direct, very, very few. Two of them were
24 only interviewed very recently, effectively to dispense with a late
25 proofing note which -- so that's why it wasn't disclosed because it
Page 135
1 hasn't happened. We're trying, in the interests of efficiency, to see as
2 many witnesses in advance to -- so the Defence knows exactly what they're
3 going to say.
4 I can't at the moment say whether it's going to affect any
5 witnesses who we'd call within those two months, but we will inform the
6 Court by the opening. Will that do?
7 [Trial Chamber confers]
8 JUDGE HARHOFF: Monday is accepted.
9 MS. KORNER: Thank you.
10 JUDGE HARHOFF: Submissions from the Defence.
11 MR. ZECEVIC: Yes.
12 JUDGE HARHOFF: Mr. Zecevic.
13 MR. ZECEVIC: Your Honours, we're in a pretty awkward situation
14 on this. The reason is the following. We have the list. We received
15 the DVDs with the documentation. However, unfortunately, due to some
16 electronic glitch it is unreadable and we returned them -- I mean, in a
17 majority it is unreadable. It took me eight hours to download and
18 finally it -- I couldn't work with it.
19 Now, we at this point cannot say anything because we haven't seen
20 the actual documents still. We hope we will receive them very soon from
21 our friends from the Prosecution, I mean the actual DVDs. So then we can
22 download the documents. Then we can review -- I'm not saying that
23 Ms. Korner is wrong or I am -- I'm actually accepting what she's saying,
24 but at least we would need to confirm that by our own eyes. Does it
25 really -- does it really pertains to 50 witness statements? Does it
Page 136
1 really consider 36 witnesses or whatever is the number?
2 So therefore in this sense we would not be able to give you
3 any -- any -- any position at least from the Stanisic Defence until we
4 review that. And if that would be the case, then at least we would like
5 to be heard on the -- on that after we reviewed them. That's the
6 unfortunate situation with this.
7 JUDGE HARHOFF: Mr. Pantelic.
8 MR. HICKS: If I may, Your Honours, I have to echo the sentiments
9 of Mr. Zecevic in that we have not been able to review the materials as
10 well, due to much of the DVD portions being corrupted. We were able to
11 see that there's 2.044 files included, which is a tremendous amount to
12 review, and again, I just agree with Mr. Zecevic's comments. We -- I
13 only spent seven hours trying to download it before it was -- realised
14 that it was corrupted, but we're not in a position to give substantive
15 comments on these documents at this stage either. Thank you,
16 Your Honour.
17 MS. KORNER: Your Honour, we were told today that's the problem.
18 We don't understand why because before we send it out we check it on our
19 equipment and it plays, but something seems to go wrong when it gets to
20 the Defence. But there is one other matter.
21 Your Honour, we're still disclosing transcripts which we get back
22 from the shorthand writers. We disclose the tapes, but as the Defence --
23 I think it was said at one stage you can't search a tape. So we're
24 dependent on the shorthand writers here doing the transcripts. We're
25 disclosing them. What I simply want to know is, is Your Honour saying
Page 137
1 that we need to ask your leave to hand over the transcripts each time?
2 These are transcripts of interviews of witnesses which have been
3 conducted. We've handed over the tapes so that they're in English and
4 B/C/S on the tapes, because everything's recorded, particularly with
5 insider witnesses. But the transcripts, as Your Honour knows because
6 we've had a lot of discussion about it, there's -- I mean it's a complete
7 backlog because nothing was happening over the summer break. So, are you
8 saying we should ask your leave to disclose to the Defence what they're
9 asking for? I know it sounds mad, but that's what it sounds as though
10 Your Honour was saying.
11 [Trial Chamber confers]
12 JUDGE HALL: What I'm not clear about, Ms. Korner, is that -- and
13 it may seem to be an odd question for the Bench to be asking you, but
14 who's property is the transcripts? Aren't they the common property of
15 the -- if they're product of the -- of the ordinary work of the Tribunal,
16 I'm not sure why you -- the question of leave to hand them over would
17 arise.
18 MS. KORNER: Well, no, no, this is -- but that's -- the reason
19 I'm asking about that is because we have an obligation, whether it was
20 beyond the 31st of July or not, to disclose any documents, any statements
21 that we've overlooked or omitted to disclose in any event. But what I
22 think is a slight confusion here is what Your Honours are getting at is
23 you won't allow us to use or lead evidence in matters which are late
24 disclosed. That, I think, must be the gravamen of this, because
25 otherwise if we were told we couldn't disclose, well, then we'd be in
Page 138
1 breach of all the rules that says we must disclose to the Defence. It's
2 the use, I think, which is -- Your Honours were aiming at. But it just
3 sounded for a moment as though we were being told that had we applied for
4 leave to late disclose copies of transcripts or whatever it was that we
5 omitted to disclose, then we'd have got it. But we have to disclose. If
6 we find documents which are relevant to witnesses we're calling or in
7 some way assist the Defence, we have to disclose it.
8 We are the owners of the original tapes of interviews with
9 witnesses, which we then get transcribed. So the transcriptions, when
10 done, come to us and we then give it to the Defence.
11 JUDGE HALL: Thank you. I now understand.
12 MS. KORNER: Did you --
13 JUDGE HALL: The context of your --
14 MS. KORNER: Right.
15 JUDGE HALL: Thank you.
16 MR. PANTELIC: Your --
17 JUDGE HARHOFF: The problem which the Chamber sees -- Mr. --
18 MR. PANTELIC: Pantelic.
19 JUDGE HARHOFF: -- Pantelic.
20 MR. PANTELIC: I do apologise, Your Honour. On that very issue
21 which is important also for my client, I just got a note, and with your
22 permission if he can have few words with regard to this issue of
23 disclosure and materials and the problems that he suffers with electronic
24 equipment and opening the documents just for the record.
25 JUDGE HARHOFF: The accused speaks through his counsel.
Page 139
1 MR. PANTELIC: Okay. It's very specific issue, so I'm not so
2 sure that I am familiar with it. But the problem is that Mr. Zupljanin
3 has a serious problem to open all these materials through his computer
4 because the problem is in a programme called Roxio, like
5 Romeo-Oscar-X-ray-India-Oscar, which is completely not fitting with these
6 programmes that OTP is using. So just for the record, that maybe it's a
7 matter of assistance of the Registry to deal with it. But we hope that
8 it can be resolved soon. Thank you.
9 JUDGE HARHOFF: We have come across these problems many, many
10 times before, and the obvious solution of course is for the Prosecution,
11 when it discloses material to Defence, to provide not only the material
12 in an electronic form but also to provide the software needed for the
13 Defence to be able to apply this material and to open it --
14 MS. KORNER: They have it, apparently, Your Honour.
15 JUDGE HARHOFF: Sorry?
16 MS. KORNER: They have -- I'm told by Mr. Smith they have the
17 software.
18 JUDGE HARHOFF: In that case I'm not sure I fully understand the
19 problem any longer. But in any case, it's not a problem that we can
20 settle here. If, Mr. Pantelic -- on your computer you need software
21 installed to be able to open effectively the material you get from the
22 Prosecution, then please contact the Registry or the UNDU and -- through
23 your lawyer, and I'm sure that the problem can be fixed soon and I hope
24 it can.
25 MS. KORNER: Your Honour, I'm sorry, just before we leave and one
Page 140
1 last matter. It doesn't matter because everything -- those 50 documents
2 were all -- fell within Rule 66(ii). But, Your Honour, Rule 66(ii), and
3 Your Honour specifically mentioned it during the course of the
4 Status Conference, I -- I think it was 65 ter, you said:
5 "I also wanted to set a date in accordance with Rule 66(A)(ii)
6 for the Prosecution to file copies of all transcripts and written
7 statements."
8 It -- that's exactly -- it doesn't actually include documents,
9 exhibits. It's written statements it applies to.
10 JUDGE HARHOFF: Yes, but you -- Mrs. Korner, you will appreciate
11 the fact that according to Rule 65 ter (E), you are required to provide
12 copies of all documents other than statements by the time you submit your
13 pre-trial brief.
14 MS. KORNER: Absolutely.
15 JUDGE HARHOFF: So there was no need to set -- you know, to
16 mention that again. It was just in order to solve a practical problem
17 that I proposed a date for the submission of the 66(A)(ii) material, but
18 I think it was clearly understood by everyone that that would also
19 include whatever possible documents that would come with that --
20 MS. KORNER: Your Honour, we're fully aware --
21 JUDGE HARHOFF: -- so there was no doubt in my mind that
22 31st of July was the closing date and after that nothing, except with
23 leave from the Pre-Trial Chamber.
24 Your question to the Chamber was whether we would require --
25 whether you would have to ask for leave to file all further documents
Page 141
1 still not on your 65 ter list, and I think the rule is clear and simple.
2 If you need to add documents to your 65 ter list, you need to apply for
3 leave, yes. So that's the answer.
4 MS. KORNER: [Microphone not activated].
5 THE INTERPRETER: Microphone, please.
6 MS. KORNER: It's my fault, I'm sure. Your Honour said
7 disclose -- and absolutely if we need to use further documents then we
8 must apply. We understand that.
9 JUDGE HARHOFF: Of course.
10 MS. KORNER: Yeah.
11 JUDGE HARHOFF: Thanks. Right. I hope this brings us to the end
12 of the agenda for today. We have a number of pending motions other than
13 those that we have covered in this Pre-Trial Conference. Some of them, I
14 think, relate to protective measures and there are other issues. I think
15 at this late time what I should do is simply to restrict myself as to
16 saying that the remaining pending motions will be dealt with very, very
17 soon, hopefully before the opening of the trial, but if not then as soon
18 as we can thereafter. And of course we are particularly sensitive to the
19 issue of adjudicated facts. We hope to be able to render that
20 decision -- I can't promise, but we are really working very, very hard to
21 try and see if we can have it ready by the course of next week. But
22 otherwise it will come very, very early.
23 MS. KORNER: But -- but, Your Honour, that's -- I was going to
24 raise that and, indeed, raised it with Ms. Featherstone before. You've
25 asked by Thursday to notify you of new witnesses or how we are going to
Page 142
1 reduce our witness list. We would simply say this: Without the decision
2 on adjudicated facts it's even more difficult to make a proper decision,
3 because once we know which facts you have found as adjudicated about
4 which you would yet need more evidence, then we have a better idea of
5 whom we can remove.
6 JUDGE HARHOFF: Yes, but you still would be able to make your
7 final list. I agree that there would be some uncertainty, and if by
8 delivery of our decision on adjudicated facts you wish to make any
9 changes in your list at that time you can do so. But bear in mind that a
10 number of adjudicated facts have already been admitted by the Pre-Trial
11 Chamber when Mr. Stanisic was alone on the docket. So there's a couple
12 of hundred adjudicated facts already that have been admitted in this
13 case.
14 MS. KORNER: Absolutely, but, Your Honour, the -- in particular,
15 the ones from the Krajisnik judgement cover areas which the other
16 adjudicated facts did not. And, Your Honours, with the greatest of
17 respect, it -- you know, to produce a revised witness list before we know
18 what's going to be adjudicated facts, we submit, does make life even more
19 complicated.
20 JUDGE HARHOFF: I appreciate that, but you have to try --
21 MS. KORNER: You're not sympathetic in the slightest, I can see.
22 JUDGE HARHOFF: No, I'm not.
23 We can try -- if that would be of particular use to you, we can
24 try to see if we can deliver part of our decision on the adjudicated
25 facts specifically relating to Krajisnik by Thursday --
Page 143
1 MS. KORNER: Yes. Your Honour, on the 24th of February of this
2 year we filed a request for notice regarding the application of the
3 adjudicated facts to Stojan Zupljanin. At the moment they're only in
4 respect to Stanisic. Can we at least know perhaps that, whether you
5 would be applying the same agreement of adjudicated facts in respect of
6 Stojan Zupljanin?
7 JUDGE HARHOFF: It would be difficult now that the cases have
8 been joined not to apply them to Zupljanin. So what was admitted for
9 Stanisic will cover Zupljanin as well.
10 MS. KORNER: Thank you.
11 JUDGE HARHOFF: But we will -- maybe we will split up our
12 decision on adjudicated facts, and if that is of particular importance to
13 you, then seek to, in part, hand down our decision on the adjudicated
14 facts in Krajisnik by the close of next week.
15 MR. HICKS: Your Honour, if I may.
16 JUDGE HARHOFF: Mr. Hicks.
17 MR. HICKS: Should we take that as a decision, an oral decision
18 in regards to adjudicated facts as applicable to Mr. Zupljanin or will
19 there be a written decision in this regard? Because we did reply to the
20 Prosecution's notice in that regard and there has been no formal decision
21 as of yet. Thank you.
22 JUDGE HARHOFF: I better be on the safe side and say we will
23 provide a written decision. But as I recall, most of the adjudicated
24 facts that relate to Mr. Stanisic are not immediately relevant to your
25 client, but I need to check that. So there shouldn't be much difficulty
Page 144
1 for you in accepting the adjudicated facts that relate to Stanisic.
2 Senor Pantelic.
3 MR. PANTELIC: Grazie, Your Honour.
4 I'm not so sure from the top of my head, but I think former lead
5 counsel Mr. Bezbradica from Australia, who was lead counsel for Stanisic,
6 accepted certain facts related to my client, Mr. Zupljanin, when --
7 during his period when he was at large so for various reasons. I know.
8 So Mr. Zupljanin was not here in the case. And a lawyer, Bezbradica,
9 simply in communication with the Prosecution, admitted. So obviously we
10 have to go through this list that it's absolutely acceptable. Thank you.
11 JUDGE HARHOFF: I understand that. In any case, we will hand
12 down the decision in writing.
13 I think this concludes the points on the agenda for this
14 Pre-Trial Conference, and unless there are other matters that the parties
15 wish to raise -- Mr. Pantelic.
16 MR. PANTELIC: Your Honour, I really kindly ask you to consider
17 if I well understood that the beginning of trial is in the afternoon
18 session of Monday, 14th of September?
19 JUDGE HARHOFF: Let me ask the Registrar about that.
20 [Trial Chamber and Registrar confer]
21 JUDGE HARHOFF: The Registrar has informed me that the trial will
22 begin on Monday, the 14th of September, at 2.15, in this courtroom.
23 MR. PANTELIC: That's -- brings me, Your Honour, to my issue,
24 small problem in general it is, but big for me for visa issue. I kindly
25 ask if it is possible to remove afternoon session to morning session
Page 145
1 because it will be a great importance and honour for me to follow this
2 opening statement in live. And then I have to catch a plane to leave
3 Schengen territory before midnight and to then come on the 15 --
4 15th of September in the morning. So just a small adjustment. Instead
5 of afternoon session if it's possible to have morning session on
6 14th of September. And then on Tuesday instead of morning maybe
7 afternoon. But it's afternoon -- for Tuesday -- so for Tuesday
8 everything is fine.
9 MS. KORNER: Your Honour, I'm afraid that I'm very content with
10 the afternoon session because I have problems over the weekend as well.
11 So I -- as much as I'd like to help out Mr. Pantelic, if it's listed at
12 2.15, I would like it to stay at 2.15 on Monday. Or start on Tuesday, I
13 don't mind which, but I don't -- I would have problems if it's
14 transferred to the morning session.
15 JUDGE HARHOFF: There might be a simple problem in that it simply
16 isn't possible because if we have to switch with another trial, then that
17 might be difficult for technical reasons.
18 MR. PANTELIC: But maybe, Your Honour -- sorry to interrupt in
19 your --
20 JUDGE HARHOFF: But before I give you the floor, Mr. Pantelic, I
21 understand your reasons for wanting to observe the opening statements by
22 the Prosecution; that is of course a crucial element in this case.
23 However, what we normally do when we cannot be present is that we are
24 provided with a CD-ROM with the audio-visual recordings of that session.
25 So if you can't be here and if we can't move, and I understand that
Page 146
1 Mrs. Korner has a difficulty in moving, then the next-best thing would be
2 to provide you with a CD to enable you to simply observe on a TV screen
3 instead. It's not perfect but it's the best we can offer.
4 MR. PANTELIC: Thank you, Your Honour. Or maybe, if it's
5 possible, to postpone the opening from Monday to Tuesday, that would be a
6 really great assistance, just one day, Your Honour.
7 JUDGE HARHOFF: I really would like to help you, but, as you have
8 understood, we are really hard-pressed for time. If we have to close the
9 Prosecution's case by the 1st of April, we don't have a minute to lose.
10 I'm simply afraid of -- because we -- I'm afraid of losing one day of
11 trial because it would imply that Donia could only come on Thursday then.
12 And so the whole thing would be postponed for one day.
13 MS. KORNER: Yes, it would be Donia on Thursday and --
14 JUDGE HARHOFF: And so on.
15 MS. KORNER: And so on, yeah.
16 [Trial Chamber and Legal Officer confer]
17 JUDGE HARHOFF: The only option I see, Mrs. Korner, is if -- we
18 could start on the Tuesday if you were able to tell us that you would
19 only use one day.
20 MS. KORNER: No, Your Honour. I -- I know that but I -- this is
21 our opportunity to explain our case properly and I think that that can't
22 happen. But, Your Honour, I've just been passed a note that
23 Your Honour's ruling of the postponement of two months would affect
24 Donia. There was a proofing note apparently, one-page proofing note, but
25 I know that both my friends over there are fully familiar with
Page 147
1 Dr. Donia -- and the other thing about proofing notes is if there was a
2 proofing note, it meant the evidence was going to be given in the
3 transcript, so it would be in the transcript. But I do hope that
4 Your Honour won't rule that I can't call Dr. Donia because of a one-page
5 proofing note.
6 [Trial Chamber confers]
7 JUDGE HARHOFF: Can I ask for an opinion by the -- would you
8 accept that we can begin with Donia? Will you accept the dispensation
9 with this one-page proofing note on Mr. Donia so that we can hear him
10 rather than having to knock him off for two months?
11 MR. ZECEVIC: Well, Your Honours, I would love to accommodate you
12 but I would need to see the note first. Maybe it's -- maybe it's
13 irrelevant for us altogether, and then we might accommodate the
14 Prosecution in that. But first we need to see -- that's our problem
15 because we haven't been able to see any of the documents.
16 MS. KORNER: I can read -- I can summarise this. He went to --
17 Dr. Donia told --
18 THE INTERPRETER: Kindly speak into the microphone.
19 JUDGE HARHOFF: Rather than starting using up time here, could
20 you provide a copy to the Defence teams right away.
21 MS. KORNER: Yes, we can [overlapping speakers] --
22 JUDGE HARHOFF: Why don't we do that, and then I would have to
23 ask the Defence counsels if they would be good enough to give us a reply
24 back Monday or Tuesday at the latest whether they are willing to dispense
25 with this. It's ironic that our own order seems to run -- but given the
Page 148
1 fact that it is apparently a very small thing, I hope that we can solve
2 it in a practical manner.
3 MR. ZECEVIC: I understand, Your Honour. We will do as you have
4 suggested.
5 There's one other thing. It was my understanding that our
6 friends are asking for two days of the opening statement. So --
7 JUDGE HARHOFF: One and a half.
8 MR. ZECEVIC: Yes. And they -- just a minute ago they suggested
9 that Dr. Donia as the first witness is appearing on Thursday.
10 JUDGE HARHOFF: No, you misunderstood.
11 MR. ZECEVIC: No.
12 JUDGE HARHOFF: If we were to accommodate Mr. Pantelic's wish --
13 MR. ZECEVIC: Yes.
14 JUDGE HARHOFF: -- that would mean that we couldn't hear
15 Dr. Donia on Wednesday but would have to put him off for Thursday --
16 MR. ZECEVIC: Thursday, that's right.
17 JUDGE HARHOFF: -- and that would cost us one full day of trial
18 which is only going to hit us in the end --
19 MR. ZECEVIC: No, no, no, I --
20 JUDGE HARHOFF: -- so we won't be able to adjourn on April --
21 MR. ZECEVIC: I'm sorry, it was my misunderstanding. I'm sorry.
22 JUDGE HARHOFF: Any other issues that we wish to raise? Because
23 I have the usual issue that I need to put to the two accused, and that is
24 to ask about your conditions, your health conditions, and if there are
25 any issues relating to your detention that you wish to raise with the
Page 149
1 Chamber at this moment.
2 Mr. Stanisic, you may rise.
3 THE ACCUSED STANISIC: [Interpretation] I have no objections to
4 the conditions of detention. My health is good and if there are going to
5 be any issues to be raised, we'll have opportunity to do that. But for
6 the time being, I have nothing.
7 JUDGE HARHOFF: I'm grateful for that and I'm glad to hear that
8 you are in good shape.
9 Mr. Zupljanin, you may rise.
10 THE ACCUSED ZUPLJANIN: [Interpretation] Thank you, Judge Harhoff,
11 for having given me this opportunity to express our concerns. You know
12 how life is in a detention unit. For the time being, conditionally put,
13 things are fine, but I would to use this opportunity to say the
14 following. Given that I spend most of my time now before a computer, due
15 to the lack of time and the sheer volume of material I have to go
16 through, I wanted to share this with you: I have lots of problems with
17 opening CDs which had been burned in Roxio, a software. I would kindly
18 ask that this issue be given sufficient attention. I don't know why so
19 much stress is placed on us having to work with this software which is
20 incompatible with many others. Perhaps this should be done in a
21 compatible type of software compatible to Word, for example, otherwise we
22 use a lot of time and end up with many useless CDs.
23 As for any other conditions I have nothing in particular to say
24 and I thank you for this opportunity.
25 JUDGE HARHOFF: Thank you, Mr. Zupljanin. As I indicated earlier
Page 150
1 on during this meeting, I hope that the issues relating to your
2 difficulties in opening the documents that you get from the Prosecution
3 can be solved. Apparently it seems to work for most of the other
4 accused, and so if there's any particular problem relating to your
5 computer in particular, I'm sure that that can be resolved through the
6 assistance of the Registry or the UNDU. But please raise it with your
7 counsel and with the commander of the UNDU, and let's hope that this
8 issue can be resolved.
9 Am I to understand that you are otherwise in good health?
10 THE ACCUSED ZUPLJANIN: [Interpretation] My health situation is
11 pretty good. I live a sporty life. Thank you.
12 JUDGE HARHOFF: Thanks.
13 This concludes today's Pre-Trial Conference. I look forward to
14 receiving the submissions that we have agreed on today and I look forward
15 to seeing you all again on Monday, the 14th of September, at 2.15, in
16 this courtroom for the opening statement of the Prosecution. Thank you
17 very much.
18 This meeting is adjourned.
19 --- Whereupon the Pre-Trial Conference
20 adjourned at 5.44 p.m.
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