1 Monday, 4 April 2011
2 [Pre-Defence Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.03 a.m.
6 THE REGISTRAR: Good morning, Your Honours. Good morning,
7 everyone in and around the courtroom.
8 This is case number IT-08-91-T, the Prosecutor versus
9 Mico Stanisic and Stojan Zupljanin.
10 JUDGE HALL: Thank you, Madam Registrar, and good morning to
12 As we begin a new phase of this trial, may we have the
13 appearances, please.
14 MS. KORNER: Your Honours, I think you may have heard me. I said
15 this should start with the Defence, surely, as it's the Defence
16 Pre-Trial Conference. But, in any event, for the Prosecution this
17 morning it's Joanna Korner, Belinda Pidwell, and Crispian Smith,
18 Case Manager.
19 MR. ZECEVIC: Good morning, Your Honours.
20 For -- appearing for Stanisic Defence this morning,
21 Slobodan Zecevic, Slobodan Cvijetic, Eugene O'Sullivan,
22 Ms. Tatjana Savic, and Ms. Deirdre Montgomery. Thank you.
23 MR. KRGOVIC: Good morning, Your Honours.
24 Dragan Krgovic, Aleksandar Aleksic, Ms. Michelle Butler, and
25 Miroslav Cuskic appearing for Zupljanin Defence. Thank you.
1 JUDGE HALL: The first thing that the Trial Chamber would
2 announce is that pursuant to Rule 73 ter, the Trial Chamber, having
3 considered the requests of the Defence, grants to each Defence the number
4 of witnesses requested; that is, 11 witnesses for Stanisic and 24
5 witnesses for Zupljanin. And in terms of time, the Trial Chamber also
6 grants the Zupljanin Defence the 64 hours to present its
8 One of the things that struck us is that, in terms of the
9 projections of the Stanisic Defence, three of the witnesses it was
10 indicated that 20 hours would be required for their examination-in-chief.
11 We wonder whether, upon reflection, that that estimate is still something
12 with which we should be working.
13 MR. ZECEVIC: Yes, Your Honours.
14 We -- as you are aware, we focused our Defence on five viva voce
15 witnesses. However, we have some 895 documents which we intend to tender
16 during our Defence case. The viva voce witnesses are -- the extensive
17 time of direct examination is especially for the reason because we want
18 to enter at least around 100 documents with each one of the viva voce
19 witnesses. And we believe, apart from the fact that there is this
20 substantial number of documents, the viva voce witnesses which we intend
21 to bring to testify will cover the overall 92 -- more or less the overall
22 92, plus a number of events which are relevant for this indictment, plus
23 some of them will address the situation immediately prior to the war.
24 And that is why we believe that the 20 hours for these three witnesses is
25 justified and needed for the presentation of Defence case.
1 Thank you. I hope I was of any assistance.
2 JUDGE HALL: Thank you, Mr. Zecevic. We understand.
3 The next item is that, to the extent that it needs to be
4 clarified, we would remind counsel that the procedure that we expect to
5 follow is that in respect of the cross-examination that counsel for the
6 co-accused would begin -- would cross-examine first, followed by the
7 Prosecution, which we believe is the normal procedure. We would remind
8 counsel of the practice to which the Prosecution, when it was their turn,
9 was expected to adhere in terms of e-mailing a list of witnesses for the
10 coming week by 4.00 p.m. every Thursday.
11 And the Defence is also required to provide a list of documents
12 to be used during the examination-in-chief not later than 72 hours prior
13 to the testimony when the total number of pages exceeds 100, and in other
14 cases, not later than 48 hours in advance of the testimony. And the list
15 shall be in Excel format, which was the same format used by the
17 Thirdly, the cross-examining party should e-mail a list of
18 documents to be used when the examination-in-chief begins.
19 Mr. Zecevic, in terms of your batting order, could we expect the
20 first two months, that's April and May -- well, six weeks, could we
21 expect your lists by today week?
22 MR. ZECEVIC: Well, Your Honours, I have a batting order for all
23 nine witnesses which we are calling, and --
24 JUDGE HALL: We had received that document.
25 MR. ZECEVIC: Yes.
1 JUDGE HALL: And so you're confirming that the order in which the
2 names appear on that document is the -- is what you intend to follow?
3 MR. ZECEVIC: Yes, that is what I intend to follow, except I have
4 to first find out what is the estimates for the cross-examination by our
5 friends from Zupljanin Defence and the cross-examination -- the estimates
6 of the cross-examination of the Office of the Prosecutor, in order that
7 I can have -- then I can have a much clearer picture then, and then we
8 can -- we can formatise our presentation of witnesses. So by all means
9 we will provide, by Monday next week, the list for the first two months,
11 JUDGE HALL: Thank you.
12 MR. ZECEVIC: Thank you.
13 MS. KORNER: Because on that, and I'm not sure what this list
14 Mr. Zecevic is referring to, is if you look at his 65 ter, it's not the
15 order in which he's calling them. So I would echo the request that we
16 can have it by next week.
17 JUDGE HALL: Thanks.
18 Following from what Mr. Zecevic has just said, once the -- a part
19 of that would be the estimates which the co-accused and the Prosecution
20 would provide in terms of their estimate lengths -- estimated lengths of
21 the batting order. Thanks.
22 Thank you. I am reminded that I neglected to confirm that
23 counsel for -- that the Defence for Stanisic has the total of 102 hours
24 that they requested.
25 MR. ZECEVIC: Thank you very much.
1 [Trial Chamber confers]
2 JUDGE HALL: Mr. Krgovic, it appears that the practice before
3 this Tribunal has not been entirely uniform in terms of the opening
4 statement when there are multi-accused. I don't know to what extent you
5 have considered this. And if you have settled the matter in your own
6 mind, and, of course, I suppose to the extent it's necessary, after
7 consultation with counsel for Stanisic, when did you think that you would
8 be making your opening statement?
9 MR. KRGOVIC: [Interpretation] Your Honour, we wanted to ask
10 guidance from the Trial Chamber precisely on this issue.
11 In the cases where there were several accused, the opening
12 statements and the ensuing presentation of evidence was normally done in
13 this order: Where the Defence team would hold their opening statement
14 immediately prior to their own presentation of evidence respectively.
15 Our intention was to ask the Trial Chamber's consent to have the opening
16 statement of Mr. Zupljanin immediately before and on the day we present
17 our first witness. This was the case, for instance, in
18 Milutinovic et al., Popovic et al. That was the order in which they
19 presented their evidence, the various teams. It doesn't necessarily have
20 to fall on the same day. But on the day we call our first witness, we
21 would have our opening statement, which would be a brief one. It would
22 perhaps take one session.
23 JUDGE HALL: Thank you. The Trial Chamber has no difficulty with
24 that, and that is the order that we will follow. Thank you.
25 Mr. Zecevic, the matter of the Witness Bajagic, where are you in
1 terms of such discussions as you would have had with the OTP?
2 MR. ZECEVIC: Thank you, Your Honour.
3 The situation with our expert, Professor Mladen Bajagic, is the
4 following: As I hope you're aware, the report was translated, and it's
5 been filed on the 30th of March. We are assured that at this moment
6 there are still 11 footnotes which are still missing translation, only
7 11 footnotes. And I talked to Ms. Korner on Friday about it. All these
8 footnotes are -- majority of these footnotes are excerpts from the books,
9 so -- and all of them are basically relying on the first part of
10 Mr. Bajagic's report, which is, in general, the general context and the
11 situation before the split of the MUP of Bosnia and Herzegovina. So I
12 would say that the -- that these -- that the pending translations of
13 these footnotes are not, so to speak, essential documents for the
14 presentation of evidence of Mr. Bajagic, and I'm definitely sure that
15 this will not -- this would not be prejudicial to the ability of the OTP
16 to prepare for the cross-examination of this witness.
17 On top, we have the assurances that all 11 translations will be
18 finished today, and we will up-load them in the course of today to the
19 e-court and provide the translation to our friends from the Office of the
21 Your Honours, in that respect, I would kindly need to ask
22 Your Honours to reconsider your order.
23 The situation is the following: Professor Bajagic is a professor
24 on the Police Academy in Belgrade. The system, the overall system,
25 university system, in our country works on the -- the main time for the
1 exams is June and July, so exams of the students start somewhere
2 beginning of June and ends somewhere in mid-July. If we postpone
3 Mr. Bajagic, it might happen that he becomes unavailable for this month
4 and a half, and it would create an enormous problem because then we don't
5 have many more options, as you know. We have nine witnesses altogether,
6 so if we hear eight witnesses, we might be in a position to be stuck for,
7 I don't know, a week or two until he's available to come and testify in
8 these proceedings.
9 Therefore, I would kindly ask that we -- I planned to call
10 Mr. Bajagic on the 2nd of May because -- I didn't -- I didn't plan that
11 out of my own wish. It is in a consultation with him, which time would
12 be most appropriate and where he will have the ability to come, be
13 prepared, and testify in these proceedings. Therefore, I will kindly ask
14 that we stick to the original schedule and call Mr. Bajagic on the
15 2nd of May.
16 Thank you very much.
17 JUDGE HALL: Mr. Zecevic, while you're on your feet.
18 MR. ZECEVIC: Yes.
19 JUDGE HALL: Before I hear from the OTP, are there any other
20 translation issues that you need to address?
21 MR. ZECEVIC: Well, we discussed the situation with our first
22 witness, Mr. Bjelosevic, who is to appear on the 12th of April, next
23 Tuesday. Now, we are -- there is some -- a number of some 20 outstanding
24 translations pending of the documents which we intend to introduce
25 through this witness. Those are the half-page documents, and we are
1 assured by CLSS that the translations and the revisions of translations
2 will be done by Wednesday this week, so two days from now, and that --
3 and I'm pretty sure that this will give enough time for the Office of the
4 Prosecutor to prepare for the cross-examination, since I intend, as I
5 said, to lead in direct examination testimony of this witness for the
6 whole week next week.
7 JUDGE HALL: Thank you.
8 Yes, Ms. Korner.
9 MS. KORNER: Your Honour, on that matter, there are something
10 like 160-odd documents that relate to Doboj on the 65 ter list. By our
11 reckoning, there are 43, not 20, that are untranslated. And if it's
12 intended to use them in the course of calling Mr. Bjelosevic to give
13 evidence, then I'm afraid we want them, all of them, by -- we'll accept
14 Wednesday of this week, as is asserted. But we make it 43, that there
15 are no translations in e-court for them. Otherwise, there may have to be
16 a delay. It depends on the nature of the documents, quite obviously.
17 It's very difficult for us to say at the moment.
18 Your Honour, can I go back to the Defence witness. Mr. -- sorry,
19 the expert witness. They're all Defence witnesses. The expert witness,
20 Professor Bajagic. There are two or three matters that we'd like to
22 The first is this: We're told excerpts from books are awaiting
23 translation. Your Honour, these are books which I have to say none of us
24 have ever heard of, and they're all in the Serbian language, apparently.
25 We are asking, and we -- I spoke to Mr. Zecevic about this, for copies of
1 the entire books so we can try and see where these one-page excerpts come
2 from and how they fit in to the general pattern. We're at a complete
3 disadvantage without being given copies of the book. So if we can be
4 provided with copies of each of the books on which they rely in their
5 footnotes, then we will see where we go as to whether we're in a position
6 to deal with him on the 1st of May. We understand the problems. We're
7 not anxious to cause the Defence any problems with calling him, but we
8 cannot really give a definitive answer until we have those books. That's
9 the first matter.
10 Your Honour, the second matter is this: I don't know if
11 Your Honours have had a chance to look at the report. We accept that
12 through his police experience, and I'll come back to that at the moment,
13 it would appear that Professor Bajagic may be classed as an expert on the
14 workings of the MUP. It's not clear how long he worked there, because
15 the -- his CV is not yet translated either, although it's been loaded
16 into e-court. We've had somebody read it. And he says he's had about
17 19 years, I think. He testified in the Popovic case, where he said it
18 was about 16 years' experience. But, Your Honours, the one thing -- it's
19 one thing for him to be accepted by us as an expert on police procedures
20 and quite another to have the first section of his report, which it deals
21 entirely with the so-called political aspect, doesn't -- barely mentions
22 the MUP, and I invite Your Honours to read, particularly, from pages 17,
23 paragraph 39, onwards. It seems -- not only does it seem to have very,
24 very little, I would say absolutely nothing to do with the reason why
25 he's being brought, but nor am I aware that he can be classed an expert
1 historian or as an expert on political matters.
2 And so, Your Honours, obviously we've got 30 days to put in our
3 objections, and we'll put this into writing, but I'm merely pointing this
4 out, which I also pointed out to Mr. Zecevic when I spoke to him.
5 Your Honour, the final thing is this on him: There's no mention
6 of it in any of his CVs or in his previous testimony, but in actual fact,
7 Professor Bajagic worked for the SNB in Ilidza in 1992. He's, therefore,
8 a witness as to fact. And I merely point that out so that there can't be
9 any misunderstanding about it. He is not someone who was removed from
10 the events which he's going to be discussing. I'm simply mentioning that
11 as an aspect which isn't otherwise clear from the report.
12 So, Your Honour, that's what we say about the expert.
13 JUDGE HALL: Thank you.
14 MR. ZECEVIC: Your Honours, the expert's CV is translated and is
15 in the e-court since Friday. Since Friday, I believe.
16 As concerning the matters that are raised, I would defer my
17 explanation until I receive the formal objection by the Office of the
18 Prosecutor in relation to the contents of the expert report.
19 Concerning the fact that Mr. Bajagic was in SNB Ilidza in 1992,
20 it is a fact that it's known to the Office of the Prosecutor, and he has
21 been cross-examined about it while giving expert testimony in Popovic.
22 Therefore, I don't see any obstacle, him being expert witness, because of
23 that fact. Among other things, Ilidza is not the municipality in our
24 indictment. So this fact is known to the Prosecution. I hear that the
25 Prosecution does not object to him being qualified to be police expert,
1 and I don't think that the fact that he was a member of SNB in Ilidza in
2 1992 creates an obstacle for him to testify as an expert witness.
3 JUDGE HARHOFF: Mr. Zecevic, did you, in fact, just say that
4 "Among other things," this is -- page 10, line 18 of the transcript on
5 the monitor, that "Ilidza is not the municipality in our indictment," or
6 did you say that it was one of the municipalities?
7 MR. ZECEVIC: It is not.
8 JUDGE HARHOFF: Thank you very much.
9 JUDGE HALL: So it remains to be seen how this would --
10 MS. KORNER: Yes, Your Honours, can I say straight away, this is
11 merely -- we're not objecting to Professor Bajagic being called. We
12 agree he can give expert evidence. I'm merely pointing out so there can
13 be no misunderstanding, when he comes, that he's also a fact witness.
14 JUDGE HALL: Thank you.
15 Moving on to the next item: Mr. Zecevic, there -- sorry.
16 Mr. Krgovic, it appears that there are a number of duplications
17 in the laws that the Zupljanin Defence is contributing to the law
18 library. Assuming that you accept that these are duplications, I assume
19 that this is a -- something that's going to be corrected.
20 MR. KRGOVIC: Yes, Your Honour.
21 The problem is that we received the expert report at quite a late
22 stage and we weren't able to ascertain which of the evidence listed there
23 is already in the database. So we will -- when we review it, we will
24 review our 65 ter list; and all the evidence that's already been
25 admitted, we will take off our list. And we'll get to that as soon as
2 JUDGE HALL: Thank you.
3 And in this vein, I trust that at this point there is no
4 confusion between -- on any side as to what can properly be subsumed
5 within the law library and which items would have to be exhibited because
6 of any controversy through a witness in the usual manner. I trust that
7 everybody understands where we are with that.
8 Ms. Korner, there was an issue that the OTP raised about
9 documents on the Defence Rule 65 ter list not with the relevant
10 witnesses. Could you expand on this, please?
11 MS. KORNER: Yes, I can.
12 Your Honours, we can't say anything about the Zupljanin list
13 because not a single document is translated yet, so we have no idea what
14 any of them are. But in respect of the Stanisic list, there are
15 documents on there which could have been put because they relate to
16 witnesses that the OTP called.
17 Your Honours, in the meanwhile, let me just find my list.
18 Your Honours, can I give some examples: Document 00041D1, which
19 is an RS MUP report of the 29th of October, 1992, could have been put,
20 because I believe he's either the author or the -- certainly mentioned,
21 to ST-121. Documents 123D1, 125D1, 127D1 could all have been put,
22 because they're authored by him, to the witness Mr. Pejic, and so on and
23 so forth. There are a large number.
24 Your Honours, the only reason I mention that is it may be
25 necessary for us to seek to recall the witnesses if matters are dealt
1 with by their witnesses who are going to deal with these documents which
2 should have been put to the original witnesses, and that's the only
3 reason I raise this now. Particularly, I mean, it may be that some of
4 the documents they acquired later, but certainly a number of them, and
5 that one in particular, we can see they must have had at the time and
6 decided, for whatever reason, not to put. At the moment, we can't -- I'm
7 sort of floating it as something to be aware of.
8 JUDGE HALL: Thank you.
9 You have a comment, Mr. Zecevic?
10 MR. ZECEVIC: Yes, a very short comment.
11 I'm not -- I'm not entirely clear about this observation by the
12 Office of the Prosecutor because in preparation of our Defence case we
13 come to possession of certain documents which we didn't have prior. So,
14 therefore, we couldn't have shown the documents to the witness in
15 question while the witness was taking the testimony.
16 The second thing is there has been a number of witnesses for the
17 Office of the Prosecution that the Office of the Prosecution, at the very
18 late stage, dropped. And, therefore, for example, with ST-121, ST-121,
19 as inspector, went with other inspectors to the field, and the documents,
20 I believe a number of the documents, is signed by all three inspectors,
21 or two, so, therefore, the author might be the other inspector who is
22 going to testify in our Defence as a Defence witness.
23 Therefore, I cannot comment anymore because of -- because the
24 observation is not specific enough, but we are willing to discuss that
25 with the Office of the Prosecution and give an explanation if we receive
1 the list of the documents which Ms. Korner was referring to. And we will
2 explain when -- if this is the document which we found during the
3 preparation of the Defence case, we will notify the Office of the
4 Prosecutor of that or the reasons why we didn't cross-examine the witness
5 who was testifying here previously to that document. Thank you.
6 MS. KORNER: Your Honours, can I say, I repeat: If it's
7 documents that came to their possession later, that's one matter. But,
8 for example, the first document I mentioned, 0041D1, it was actually
9 disclosed to us by the Defence in batch 2 of our disclosure, so it's
10 certainly -- that certainly isn't the document that they came into later.
11 But as I say, we'll see where we go.
12 JUDGE HALL: Yes, thank you.
13 MR. ZECEVIC: I was just -- one very short matter.
14 Concerning that particular document, this document is in one of
15 the footnotes to Mr. Bajagic's report, therefore.
16 JUDGE HALL: Thank you.
17 The matter of the motion for protective measures regarding
18 several witnesses, could we have counsels' assistance as to what this is
19 intended to encompass?
20 MS. BUTLER: Yes, Your Honours.
21 This essentially is another matter on which the Zupljanin Defence
22 would be seeking some clarification from the Trial Chamber.
23 You'll recall that on the 3rd of February this year you issued a
24 scheduling order, and I'll read out the terms of that order, if I may.
25 It said:
1 "The Defence of Stanisic and Zupljanin to file their submissions
2 pursuant to Rule 65 ter by noon on Monday, 28th March, 2011, on which
3 date the Defence of Stanisic shall also provide a list of witnesses for
4 the first two weeks of its case, together with any motions for protective
5 measures of these witnesses."
6 Now, rightly or wrongly, the Zupljanin Defence took that to mean
7 that our motion for protective measures was not due on the 28th of March
8 but that only the Stanisic motion for protective measures was due on that
10 Now, I note in your decision of last week, on the 31st, that
11 you've observed that the time for the Defence to file protective measures
12 motions has now passed, so, in essence, we would be seeking the leave of
13 the Trial Chamber to file such a motion in the near future.
14 There are four witnesses who might be affected by this matter.
15 I've informed my learned friend of those witnesses. It's SZ-2, SZ-3,
16 SZ-7, and SZ-22.
17 Now, as Your Honours will be well aware, there are some
18 sensitivities in relation to the particular reasons for seeking these
19 types of protective measures. So in the course of this week, our
20 investigators are meeting with these witnesses to confirm their exact
21 requirements and the reasons for them. And if the Trial Chamber should
22 seek fit, we would be in a position to file that motion by the end of
23 next week. I don't imagine that there would be any prejudice to my
24 learned friend, in light of the delay between now and start of our case,
25 and so that's what we'd be seeking, with the leave of the Chamber, to do.
1 JUDGE HALL: Thank you.
2 And assuming that the Prosecution has no comment on the leave now
3 sought, it is something which, after a brief consultation, we can deal
4 with immediately.
5 [Trial Chamber confers]
6 JUDGE HALL: So the order of the Trial Chamber is that the
7 Stanisic Defence has until the end of next week to deal with this matter.
8 Sorry, the Zupljanin Defence.
9 MS. BUTLER: I'm grateful, Your Honours. Thank you.
10 JUDGE HALL: Thank you, Ms. Butler.
11 Is there -- and this is directed to Mr. Stanisic. Is there
12 anything further that the Trial Chamber need formally say about the law
13 library that it hasn't said already?
14 MR. ZECEVIC: I don't think so, Your Honours. I honestly don't.
15 We have a clear understanding what needs to be done, and I think --
16 I think we are going in that direction.
17 JUDGE HALL: Thank you.
18 MS. KORNER: Your Honours, and our understanding is, and that's
19 why I actually raised it with Mr. Dygeus when we had got the e-mail,
20 everything -- that there was a problem at the end of the Prosecution
21 case, but everything has now been, as I understand it, sorted. Well, I
22 see Ms. Savic slightly disagreeing with that, but -- and whatever it is,
23 it's very slight, Your Honours.
24 MR. ZECEVIC: That is precisely why I said we are going in a
25 right direction.
1 JUDGE HALL: Thank you. So we are ad idem on that matter.
2 There is -- and the next item is classified as statements not
3 provided with Rule 92 bis, ter, and quater motions. This concerns two
4 things: access through e-court and material requested to be admitted into
5 evidence, and --
6 [Trial Chamber confers]
7 JUDGE HALL: Mr. Stanisic -- Orasanin's interview, is that -- it
8 appears -- at the risk of sounding redundant, it does not yet appear to
9 be in e-court.
10 MR. ZECEVIC: Your Honours, we discussed -- because it's his --
11 it's the transcript of the interview conducted by the Office of the
12 Prosecutor, and apparently there has been some mistake, and we are
13 waiting for the revision of the transcript of his interview with the
14 Office of the Prosecutor. And we are co-operating on that matter with
15 our friends from the Office of the Prosecutor. And it will be -- I am
16 notified that it should be done very soon. Thank you.
17 MS. KORNER: There's a misunderstanding.
18 The one that we're revising, because it was an atrocious
19 transcription, is Milanovic, not Orasanin. We haven't done anything
20 about Orasanin yet. If that needs revising, we'll have a look at that as
22 MR. ZECEVIC: Well, I thought we were talking about Milanovic.
23 I'm sorry.
24 MS. KORNER: No, it was Orasanin he was asking about.
25 MR. ZECEVIC: If you'll just bear with me, Your Honours. Let me
1 consult with my team.
2 [Defence counsel confer]
3 MR. ZECEVIC: Your Honour, we will have the information in a
4 couple of minutes, so if you will give me the opportunity to address that
5 at the end of the session?
6 JUDGE HALL: Thank you, Mr. Zecevic.
7 MR. ZECEVIC: Thank you.
8 JUDGE HALL: Ms. Korner, you had raised the issue of the request
9 to Croatia. Could you enlighten us, please.
10 MS. KORNER: I can. The question is whether you want it in
11 public or in private session.
12 The filings were public, which is why I'm somewhat surprised by
13 what transpired. But if Your Honours would prefer that it's -- I deal
14 with this in private session, I will.
15 JUDGE HALL: We would go into private session.
16 [Private session]
11 Page 19329 redacted. Private session.
20 [Open session]
21 THE REGISTRAR: We are in open session, Your Honours.
22 MS. KORNER: Your Honours will recall this is an ongoing saga.
23 Your Honours will recall the to'ing and fro'ing and arguments
24 about the proof-of-death database, which Your Honours ruled on
25 eventually, and we stated that because we were taken by surprise at the
1 challenge to the documentation and the challenge to the deaths of those
2 who are listed on the back of our indictment, we would be acquiring
3 further evidence. Your Honours, this we have, in the sense that we have
4 received a further 150 actual death certificates, which we didn't apply
5 for before because, as I say, this is the first time this issue has ever
6 arisen as a live issue. And we have -- they have now been listed. A
7 list of the names and the dates of death has been provided to the
8 Defence. And as soon as we get a translation -- well, firstly, we'll
9 give the death certificates, themselves, once they've been stamped. Just
10 to add to the slight delay, it appears that the unit that does the
11 stamping moved itself, lock, stock, and barrel, last weekend somewhere
12 else and not much was happening. And we'll provide those. Plus we've
13 got translations coming for, effectively, a specimen, because they're all
14 the same, but the names and the dates are different.
15 And, Your Honours, we're simply saying this: We would wish to
16 add those death certificates to the proof-of-death database, and it's as
17 simple as that.
18 Sorry, I'm told it's more than 150. Oh, definitely more. 270,
19 Your Honours.
20 JUDGE HALL: Thank you.
21 MR. O'SULLIVAN: Your Honour, the Prosecutor says she expresses
22 surprise at the beginning of her submission, and we see the only thing
23 that we find surprising is her claim that this has arisen for the first
25 The history of this matter, in fact, begins in July of 2009,
1 2009, with the filing of our supplemental pre-trial brief, at which time
2 we indicated to the pre-trial Chamber the matters which we agreed and
3 which we disputed.
4 At a 65 ter conference held on 24 August 2009 - page 264 - on
5 behalf of the Pre-Trial Chamber, the Pre-Trial Judge thanked the parties
6 for the supplemental submissions. He said:
7 "They were very good and they provide just what we thought they
8 should provide, and I can commend both teams for submitting those
10 In that submission, we told the Prosecution that if matters were
11 not agreed, they were disputed. That's July 2009. The first filing by
12 the Prosecution in relation to these death charts or the annexes was
13 July 2010, one year later. You'll recall that, last summer. A second
14 filing was made in October 2010. And the third one in January 2011. The
15 Prosecution has closed its case. It's made its submission. You ruled on
16 it on the 1st of February this year.
17 You will also recall that on the 1st of February, and now I refer
18 to transcript 19298 to 19300, my learned colleague Mr. Zecevic made an
19 oral application to you on behalf of both accused to reconsider your
20 February 1st, 2011, decision. We said that the spreadsheet provided by
21 the Prosecution which links to other spreadsheets, without underlying
22 material, has no probative value and should not even be admitted into
23 these proceedings. But that request for reconsideration made by
24 Mr. Zecevic on the 1st is still pending.
25 So we say that not only has the Prosecution closed its case,
1 presented its evidence, there's still the pending request made jointly by
2 Mr. Zecevic, and there is certainly no basis for the Prosecution to
3 attempt to provide any other information it says relates to these
5 MS. KORNER: Well, Your Honours, that's right, but, Your Honours,
6 that's a partial explanation of what went on. Your Honours know that
7 it's much more complicated than that. There was a long discussion about
8 whether the exhumation evidence was going to be agreed.
9 But the fact is this: I appreciate that there was this
10 application for reconsideration, but it doesn't appear from either
11 Defence witness list that they're going to call any evidence disputing
12 what we say about it. And we say that this database is an ongoing -- if
13 you like, a living instrument to which we should be entitled when we get
14 the extra evidence, which, as I say, the actual fact of complete
15 challenge to each and every victim named was not made clear until after
16 July. And so we say we should be allowed to add those death certificates
17 to the database in the interests of Your Honours coming to the right
18 decision, apart from anything else. So that's our application.
19 [Trial Chamber confers]
20 JUDGE HALL: We understand what counsel on both sides have said
21 on this issue, and it is something on which we don't intend to make any
22 definitive pronouncement at this point because we will have to look at
23 the concerns raised today in the context of the extensive background
24 which would have been reflected, we thought, in the ruling that we gave
25 on this matter. So, obviously, it is something to which we're going to
1 have to return. Thank you.
2 Sorry. Are there any matters with which we haven't dealt today
3 which we must address?
4 I thought Mr. Zecevic was about to rise, but I see Ms. Korner is
5 on her feet.
6 MR. ZECEVIC: Your Honours, there are three matters I wish to
7 raise concerning the other matters. The one is related to the -- to our
8 request for disclosure of the documents from Croatia.
9 And, therefore, I was notified that -- I think we might go to --
10 better to the private session. I'm sorry.
11 JUDGE HALL: Yes, private session.
12 [Private session]
22 [Open session]
23 THE REGISTRAR: We are in open session, Your Honours.
24 MR. ZECEVIC: Thank you.
25 And the last thing I wanted to raise is the motion filed by the
1 Office of the Prosecutor opposing to our two 92 ter witnesses, which was
2 filed on Friday.
3 Now, I think it would be -- it would be more appropriate if we
4 can discuss this matter in court in order to save the time of filing the
5 response to the motion. Perhaps, if we have time, we can do that today
6 in order that -- because one of the -- one of the consequences on the
7 Trial Chamber decision on that would be, obviously, expansion of the time
8 needed for presentation of evidence for the Defence case, in case the
9 Trial Chamber accepts the objection by the Office of the Prosecutor.
10 And I'm prepared to make a submission on that matter, if it
11 pleases the Court. Thank you.
12 MS. KORNER: Your Honour, on that basis, Mr. Zecevic needs leave
13 because it's a response to our response, but I'm perfectly happy to deal
14 with the matters in open court as well today.
15 JUDGE HALL: Thank you, Ms. Korner.
16 [Trial Chamber and Legal Officer confer]
17 MS. KORNER: Your Honours, can I just ask: If we deal with it
18 today - sorry - could we do it after the break? Because I haven't got my
19 copies of the document with me.
20 JUDGE HALL: We've decided that.
21 MS. KORNER: Oh, right. Thank you.
22 MR. ZECEVIC: Just -- I'm sorry, one last matter.
23 I promised Your Honours the information on Orasanin interview.
24 It has been up-loaded in e-court. It's 1D06-3314. Thank you.
25 JUDGE HALL: Mr. Krgovic, do you have any matters?
1 MR. KRGOVIC: No, Your Honours, that's all we have.
2 JUDGE HALL: Ms. Korner.
3 MS. KORNER: Your Honour, just one last matter, and that's this:
4 We note that neither the names of Mico Stanisic nor Stojan Zupljanin
5 appear on the witness list. We are, therefore, assuming that neither
6 intends to give evidence on his own behalf.
7 Your Honour, the only reason I raise that is because, of course,
8 it's open at a later stage to the Defence, if they so wish, to apply to
9 call either accused to give evidence. I'm well aware of the system that
10 pertains in civil law systems, that the Defence always has the right to
11 speak. The only reason I'm raising it is because it's a matter of credit
12 that Your Honours may feel, Mr. Zecevic will be familiar with, because I
13 believe this happened in the Milutinovic trial, that if the decision is
14 taken later to call either of the accused, that, of course, may have an
15 effect on the - how can I put it? - not the credibility so much, but as
16 to the weight, if they give evidence after all their witnesses. That's
17 the only reason I raise it.
18 JUDGE HALL: Thank you.
19 So we would take the break now until 11.00, at which time we
20 would deal with the 92 ter lists.
21 --- Recess taken at 10.10 a.m.
22 --- On resuming at 11.05 a.m.
23 JUDGE HALL: Thank you.
24 The first matter with which we would deal is the matter of leave
25 to counsel for Stanisic to respond to the Prosecution's response on this
1 matter of the 92 ter list.
2 Yes, Mr. Zecevic.
3 MR. ZECEVIC: Thank you very much, Your Honours, for granting the
5 Well, Your Honours, I just have a couple of observations and
6 comments on the Prosecution response to our motion for 92 ter witnesses.
7 Your Honours, both of these witnesses, what we offered as a
8 92 package are their interviews conducted by the Office of the Prosecutor
9 in both cases. We, of course, interviewed these witnesses in preparation
10 of our Defence case. Now, when we talked to them, it became apparent to
11 us that what they say to the Office of the Prosecutor is exactly what
12 they are saying to us, or more or less exactly, and that is why we
13 offered these two witnesses as 92 ter witnesses on the assumption that
14 because the interview was conducted by the Office of the Prosecutor, that
15 there would be no objection from the Office of the Prosecutor to tender
16 these two interviews as a 92 ter package. Of course, we were mindful of
17 the time and resources needed for presentation of our Defence case.
18 The amount of time asked for, for these two witnesses, which is
19 two hours, comes from the fact that there is a number of documents, as I
20 stated before at the beginning of today's session, there is a number of
21 documents which we intend to show to these witnesses, which these
22 witnesses can verify, and admit them through them. That is why we asked
23 for two hours. In addition to that, to the documents which we intend to
24 show to them, there is additional statement by Mr. Milanovic, one of the
25 witnesses, and we wanted to explore the contents of that statement. That
1 is why we asked for two hours for these two 92 ter witnesses in direct.
2 Now, you will surely recall, Your Honours, and I have a list of
3 it here, of witnesses called by the Office of the Prosecutor as a 92 ter
4 witness, and I would just name a few as examples: ST-111 was a witness
5 of -- by 92 ter. Its direct examination lasted 3 hours and 41 minutes;
6 ST-198, more than two hours; ST-193, more than three and a half hours;
7 ST-187, more than six and a half hours. Therefore, in this respect, I
8 don't find the objection by the Office of the Prosecutor concerning the
9 amount of time needed for these witnesses as justified.
10 Now, we are entirely in Your Honours' hands. Of course, we have
11 nothing specifically to object to, to call these witnesses as viva voce
12 witnesses, but surely that will require at least triple the time that we
13 anticipated for --
14 JUDGE HALL: Which is a question I was about to ask, if I might
15 interrupt, Mr. Zecevic.
16 MR. ZECEVIC: Yes.
17 JUDGE HALL: Without telegraphing how we're inclined to rule on
18 this matter --
19 MR. ZECEVIC: Yes.
20 JUDGE HALL: -- if they were called viva voce, how long do you
21 anticipate their testimony would be?
22 MR. ZECEVIC: Well, I would assume, Your Honours, six hours. But
23 I can't be really positive because I never anticipated this. I tried to
24 assess -- I tried to assess that over the weekend, but I haven't been in
25 contact with the witnesses over the weekend, so I would assume six hours
1 for each. Thank you.
2 JUDGE HALL: Thank you.
3 MS. KORNER: Your Honours, I don't think we need to say very much
4 more than we've said in our response. But Mr. Zecevic seems to think
5 that because we interviewed these witnesses, ergo we accept they're
6 telling the truth. Well, Your Honours, it must be clear throughout our
7 case that we do no such thing. These particular witnesses were, in fact,
8 dropped from our witness list, so that should say something.
9 And, finally, Your Honours, the difficulty Your Honours may feel
10 is the witnesses we called 92 ter, apart from the ones that were objected
11 to, they'd always testified before or there was a written statement
12 attesting to the truth of the contents. There's nothing in these
13 so-called interviews conducted by our office that even remotely begins to
14 say that these are truthful. And, of course, the Rule does talk about a
15 statement or previous testimony. And the difference between a statement
16 and this type of interview is that there is, in the statement, an
17 attestation to the truth of the contents and what is said. But
18 otherwise, we've said what we intend to say in our response.
19 [Trial Chamber confers]
20 JUDGE HALL: So we will defer our decision on this question,
21 pending the receipt of the statements which the Chamber would wish to see
22 in order to assess the application.
23 There seems to remain an issue as to the dates when this material
24 that's in the process of being up-loaded in English into e-court, and
25 the -- could the Defence indicate when the material would have been so
1 up-loaded and the Prosecution indicate when they would have seen it, when
2 they would have -- well, confirm that they have access to it in English.
3 MS. KORNER: Well, Your Honours, as I understand it, anything
4 that's been translated, we have access to because it's been up-loaded
5 into e-court. Our concern is, for example, as I said, there are
6 40 documents untranslated for a witness that's due to start next week,
7 and it may well be that we'll have to ask for further time before, at
8 least, cross-examination. And the same applies with the expert. It
9 depends on the nature of what these documents are. So, I mean, I have to
10 say, 40 untranslated documents, potentially which are going to be used by
11 a witness, is a lot.
12 MR. ZECEVIC: Well, Your Honours, according -- I said at the
13 beginning of today's session, according to the information of CLSS, the
14 12 -- the 11 footnotes to Mr. Bajagic's report will be up-loaded today.
15 The translations are due today and will be received in the course of
16 today and will be up-loaded.
17 As for the documents concerning our first witness, the Doboj
18 documents, they will be available and up-loaded in the e-court on
19 Wednesday. That is the information which we have from the CLSS.
20 And since I'm standing, I would like to express our gratitude to
21 CLSS in their efforts to cope with this situation. Thank you very much.
22 JUDGE HALL: Thank you.
23 [Trial Chamber and Legal Officer confer]
24 JUDGE HALL: I'm reminded -- we're reminded by the Legal Officer
25 that the concern that the Chamber has is that in respect of the
1 92 bis, ter, and quater motions, we need to know the date on which this
2 material was released in e-court and, correspondingly, the Prosecution's
3 confirmation of having access to it.
4 MR. ZECEVIC: Well, Your Honours, as far as I know, the
5 documentation has been released on the 28th of March, in accordance with
6 the scheduling order, except for the Milanovic statement which is now in
7 the process of revision. And this revision is due Friday, and that
8 particular document will be up-loaded on Friday.
9 MS. KORNER: Your Honour, we confirm we've got all the
10 92 ter, quater, and bis statements, that they have been up-loaded, so we
11 confirm that.
12 Can I, Your Honours, just return, however, to the question of
13 Professor Bajagic.
14 Your Honours, Mr. Zecevic invited you to reconsider the order
15 that he had to find a new witness, and, of course, that really is an
16 important ruling. And I wondered what Your Honours -- if Your Honours
17 had decided on that, because if it's a different witness, it affects both
18 Mr. Zecevic and us.
19 Technically, our 30 days runs from today, if we get all the
20 translations. But, Your Honours, we're not going to stick by the letter
21 of the law, as it were, on this, and we will provide our response, as
22 indicated by us, today, before 30 days are up.
23 But we haven't had a response. We said we'd like all the books,
24 please, that are referenced, from which there are going to be just an
25 extract translated, and I don't know that we got a response to that.
1 That could make a difference.
2 MS. SAVIC: Your Honours, about half of the books have been
3 up-loaded in B/C/S entirely in e-court, while the other half is being
4 scanned as we speak. One of the books we didn't have entire B/C/S copy.
5 We've ordered it from a bookshop, and it will be scanned tomorrow and
6 disclosed to the Prosecution as soon as we receive it. Thank you.
7 JUDGE HALL: And if I understand what has passed between counsel
8 so far, Ms. Korner, you anticipate that pending the -- having access to
9 the entire book, you don't think you would be handicapped, but you just
10 wish to reserve your position in the event that there are some surprises
11 that you have to address. So you're content to proceed in the -- with
12 the schedule as we now have it, subject to this reservation. Do I get --
13 MS. KORNER: The only thing that -- can I put this reservation
14 in, and it's really what happened with nearly all of our experts: That
15 it may well be that at the end we're saying, I'm sorry, because of the
16 books or whatever it is, you can call him in-chief, but we'd ask he come
17 back for cross-examination at a later date. So we're just reserving that
18 as a fall-back. But other than that, Your Honours, we're content,
19 subject to books, translations, or whatever, to the witness starting on
20 the 2nd of May.
21 JUDGE HALL: Thank you. That's useful.
22 [Trial Chamber confers]
23 JUDGE HARHOFF: During the first part of this hearing today, the
24 issue of the order to Croatia was also raised. And I don't think we need
25 to go into private session for saying what I have to say, because the
1 Chamber discussed it during the break, and our position is that in our
2 view there is nothing more to add on top of what is already contained in
3 our decision of 16 March. That is to say that the information that is
4 provided by the Government of Croatia is being put to the disposition or
5 the disposal of the Defence, and that's the way it should remain.
6 MS. KORNER: Well, Your Honours, then can I may it clear that
7 what we're going to do is we are going to apply to the
8 Government of Croatia that they should provide us with whatever they
9 provide the Defence with.
10 JUDGE HARHOFF: That's your decision. But let's see if the
11 Defence is going to release parts or all of it when they receive it from
13 JUDGE HALL: Well, that exhausts the list of the matters with
14 which we can deal today, and we are grateful to counsel on all sides for
15 their assistance in clarifying the next steps in this matter.
16 [Trial Chamber and Legal Officer confer]
17 JUDGE HALL: And we take the adjournment until Monday next, when
18 we would hear the opening statements of counsel for the Defence.
19 Thank you.
20 --- Whereupon the Pre-Defence Conference adjourned
21 at 11.24 a.m.