Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1435

1 Wednesday, 23 July 2003

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.16 p.m.

5 JUDGE LIU: Call the case, please, Madam Registrar.

6 THE REGISTRAR: Good afternoon. Case Number IT-02-60-T, The

7 Prosecutor versus Vidoje Blagojevic and Dragan Jokic.

8 JUDGE LIU: Thank you very much.

9 Mr. Waespi, are there any witnesses this afternoon?

10 MR. WAESPI: Good afternoon, Mr. President, Your Honours. No,

11 there is not. We decided not to call this witness who has been

12 anticipated to testify this afternoon. He will be testifying after the

13 summer break.

14 JUDGE LIU: I see. I'm sorry to hear that. It was our intention

15 to finish the witness list before the summer recess. Could you inform us

16 how many witnesses left in the first group that we should hear after the

17 summer recess.

18 MR. WAESPI: Yes, Mr. President. I believe without naming the

19 people, there are three witnesses who are left, and we intend to call them

20 as soon as the Court decides to resume the case after the summer break.

21 JUDGE LIU: Thank you very much.

22 Now, we turn to the 94 bis hearing which is about expert reports.

23 On the 17th February, 2003, the Prosecution filed its notice of disclosure

24 of expert witness statements under Rule 94 bis with reports attached. On

25 the 18th February, the Prosecution filed a motion for the admission of

Page 1436

1 witness statements and the prior testimony pursuant to Rule 92 bis. On

2 the 31st of March, 2003, the Defence team of Mr. Blagojevic and Mr. Jokic

3 filed their response concerning the 94 bis notice and the 92 bis motion.

4 In their response concerning the 94 bis notice, the Defence team of

5 Mr. Blagojevic accepts the 14 expert reports in lieu of live testimony,

6 and also expresses wishes to cross-examine two expert witnesses. The

7 Defence team for Mr. Jokic accepts 11 expert reports in lieu of live

8 testimony, but also expressed their wishes to cross-examine five expert

9 witnesses.

10 In its response concerning the 92 bis motion, the Defence of

11 Mr. Blagojevic accepts the expert reports or transcripts of the experts'

12 testimony in the Krstic case to be admitted into the evidence in lieu of

13 the oral testimony of the same expert of which it accepts the reports in

14 its response regarding the 94 bis notice. It objects to the admission of

15 the transcript of one expert witness. In its response regarding the 92

16 bis motion, the Defence team of Mr. Jokic requests the Trial Chamber to

17 deny the 92 bis motion in toto or if the Trial Chamber grants the motion,

18 then all the witnesses will be called for cross-examination.

19 On the 30th May, 2003, the Prosecution filed its notice of

20 disclosure of expert witness statements under Rule 94 bis, providing an

21 updated report of two expert witnesses. On the 30th June, 2003, Mr. Jokic

22 Defence team filed a response accepting the two updated expert reports to

23 be admitted into the evidence without calling the experts to testify in

24 person. The Defence team for Mr. Blagojevic did not file any response.

25 During today's session, this Bench would like to discuss with the

Page 1437

1 parties about those expert reports. First of all, I would like to ask the

2 Prosecution to tell us whether there's any protective measures for any

3 experts during these filings because during the proceedings, their names

4 may be mentioned. Yes, Mr. Waespi.

5 MR. WAESPI: Yes, Ms. Davis is the expert on our experts.

6 MS. DAVIS: Your Honour, I don't believe there are any protective

7 measures for any of the expert witnesses. We can discuss their names

8 openly.

9 JUDGE LIU: Thank you very much. The Trial Chamber also observes

10 that both Defence teams object to some of the experts' reports submitted

11 under 94 bis, but did not provide any specific reasons for their

12 objections. So there are some questions we would like to address to both

13 parties.

14 Could I turn to Ms. Sinatra, first. We would like to know why

15 does your team object to the 92 bis response to experts' reports or

16 experts' transcript testimony listed in the Prosecution's 92 bis motion to

17 be admitted while accepting them in lieu of live testimony in its 94 bis

18 response. We found it very strange.

19 MS. SINATRA: Yes, Your Honour, and we're going to change our

20 position on that in the courtroom today. I just wanted to greet you all

21 and for the first time I'm going to take my first shot at saying,

22 Judge Argibay and Judge Vassylenko, I have never had the nerve to try to

23 pronounce your names, but I wanted to go ahead and breakthrough on that,

24 and I'm so happy to be able to address you on this and change our

25 position. We listed 11 expert witnesses that we will allow under 94 bis.

Page 1438

1 And we change our position on the 92 bis, those witnesses' testimony from

2 the Krstic transcript, we have no objections to that also. So that's 11

3 witnesses that can be admitted from the Krstic trial.

4 JUDGE LIU: Thank you very much.

5 MS. SINATRA: Thank you. It was a mystery, Your Honour. Thank

6 you for letting me clear that.

7 JUDGE LIU: Thank you. And the next question I would like to

8 address to the Defence team of Mr. Blagojevic, Mr. Karnavas, why do you

9 want to cross-examine Mr. Helge Brunborg, and Martin Ols, those two expert

10 witnesses?

11 MR. KARNAVAS: Good afternoon, Your Honours, Mr. President. Thank

12 you for asking me that question. I think -- let me address first

13 Mr. Helge Brunborg. His testimony, I believe, is vital to the Prosecution

14 as well as to the Defence with respect to the issue of genocide, the count

15 of all counts in this particular case. He is a demographer. He testified

16 in the Krstic case, and there are 68 pages of transcript, only six of

17 which were of cross-examination. None of the questions really went into

18 the methodology of the particular report.

19 Mr. Brunborg worked for the OTP as an in-house expert, hardly what

20 one would expect to be an objective outside expert. He was employed by

21 OTP. So while we don't -- we're not suggesting that he's not an expert, I

22 think there is room to suggest that perhaps he is less than objective when

23 it comes to his report. In his initial report, he is rather firm with

24 respect to certain findings. Of course, the centre of the report deals

25 with the actual number of the missing persons. Now, the number -- that

Page 1439

1 particular number obviously is important for a variety of reasons, one for

2 historical; two, for of course all the missing people themselves and their

3 family members, and perhaps even in this particular case, though, I would

4 suggest that you don't necessarily look at a number in particular in order

5 to determine whether genocide has or has not occurred. The percentage is,

6 however, I believe a significant factor. And in his findings, he

7 indicates that perhaps as more than 90 per cent of the people that are

8 missing are from Srebrenica, and then he also says five surrounding

9 municipalities. The -- since then, he prepared an updated report, and in

10 the updated report he is less rigid, if I could put it that way. And

11 perhaps slightly more flexible in his findings. In his -- in that

12 particular report, and we were served of it on 12 April, 2003, paragraph

13 number 1, where it says "Missing by municipality of residence," he states,

14 and I'm just going to read briefly for everyone's convenience, "There is a

15 great uncertainty and debate about the number of people who were in the

16 enclave before it fell on 12 July, 1995. Moreover, it is not known where

17 the people in the enclave came from. Most of them probably, and I

18 underscore myself probably, came from the municipality of Srebrenica

19 itself, but there were also many who came from surrounding municipalities

20 as there were large flows of displaced people in and out of Srebrenica

21 after April 1992 due to armed conflicts in the surrounding areas."

22 And it goes on, and he adjusts the numbers somewhat. And he

23 discusses that issue. Now, this is -- this was provided to us, as I

24 indicated, in April 12th, 2003. Back on 11 July, 1995, there was a letter

25 submitted by Mr. Akashi to the Secretary-General Annan of the United

Page 1440

1 Nations where in it, and this was provided to us by the Prosecution, and

2 for the record, the top number is R008166 -- looks like 2. It's hard to

3 read. But this was provided to us from the Prosecution. It says, on

4 paragraph 2(b) of page 2, it says: "UNHCR reports that 80 to 90 per cent

5 of the population in Srebrenica, (total population is 40.000) are

6 displaced persons who fled fighting earlier in the war, thus they do not

7 have long-standing ties to homes and property in the enclave and will

8 probably be interested in leaving for Tuzla." I mention that because this

9 report was generated by Mr. Akashi. Obviously it was in the hands of the

10 Prosecution. It's dated 11 July, 1995. The gentleman worked for the

11 Office of the Prosecution, I believe, as late as 1997, 1998, all the way

12 to 1999. And obviously, this is a critical issue to the count dealing

13 with genocide. And so, we believe because, one, we have this material

14 before us, we have the UNHCR's prediction that was stated by Mr. Akashi,

15 we have an updated report, which I failed to mention, also took into

16 consideration the NIOD report, the Dutch report, and also the report

17 presented by the government of the Republika Srpska, although I will say

18 that that report in essence is worthless, and I say that for the record

19 and on the record. But he does take into consideration the NIOD report

20 and he does minimise or does -- he takes exception to their findings

21 without going into any great of details. So given all, that given the

22 fact that he wasn't thoroughly cross-examined, given that this is a

23 central issue, we believe that the only way that we can fully satisfy our

24 mandate in representing Mr. Blagojevic, and the only way for the Trial

25 Chamber to fully factor in this important information is to have him here

Page 1441

1 so he can be cross-examined, particularly in light of the fact that he has

2 a new report.

3 So that was the reason why we chose to challenge and to request

4 that Mr. Brunborg come here and be cross-examined. And I want to stress

5 again, he is a Prosecution's paid employee at the time that he makes this

6 report. Hardly someone that I would consider or anyone else would

7 consider, at least from the Defence bar, an objective, qualified expert

8 witness. He may be a qualified expert witness, but objective, that's the

9 part that I take exception to.

10 With respect to the other individual, it was rather perplexing. I

11 believe it's Mr. Martin. He's a forensics expert. From what I was able

12 to glean, and there was precious little of it, I simply could not

13 understand why indeed this particular information was being tendered by

14 the Prosecution. They may have a particular reason. I certainly can't

15 figure it out. And so, before I can sign off on whether I would agree to

16 this report coming in without having the gentleman testify, I need to know

17 a little bit more about it. I don't think that there is a whole lot of

18 dispute as to how the victims were killed in this particular case. The

19 report itself doesn't in any way tend to establish that a particular

20 weapon that belonged to a particular member of the Bratunac Brigade was

21 used, and therefore, there's some kind of nexus, some kind of connection.

22 So I don't fully understand why he's being -- they're bringing him here.

23 Frankly, in my opinion, his testimony or the evidence is not terribly

24 relevant to the issues before this Trial Chamber. And perhaps if I could

25 hear an offer of proof from the Prosecution, I would be more than happy to

Page 1442

1 revisit the issue, and I could do so quickly on my feet. I have I would

2 say a modest amount of expertise in forensic ballistics matters. So if I

3 could hear from the Prosecution, but basically I hope I have answered both

4 of your questions, Your Honour.

5 JUDGE LIU: Thank you very much. As for the second witness, maybe

6 we could turn to the Prosecutor for asking some questions, because up to

7 now we have no report yet regarding the comparison of the cartridge

8 casings felled from the Drina Corps weapons and the cartridge cases found

9 at various crime scenes. I wonder whether this kind of report will be

10 filed by the Prosecution, or maybe the Prosecution could explain why they

11 would like to call this person to be an expert witness.

12 MS. DAVIS: We would be happy, Your Honour, to revisit this

13 particular report, the Ols report, and to file something in writing if

14 that would be acceptable regarding whether we would continue -- we may be

15 able to drop this report.

16 JUDGE LIU: Yes, thank you.

17 Well, maybe the same question we'll address to Ms. Sinatra. I

18 think you request the cross-examination of five expert witnesses. Would

19 you please tell us why you want them to be cross-examined.

20 MS. SINATRA: Yes, Your Honour. And I will need to add to that

21 list and reconsider a few expert witnesses. We just had a meeting with

22 the Office of the Prosecutor at 12.00 today. And we have agreed to

23 revisit five witnesses, and that would be Ten Camp, Fagel, Miljaars, I

24 think, Maloney and Brown. So we are going to be discussing that and try

25 to come to a conclusion on whether those witnesses are necessary. Maloney

Page 1443

1 and Brown, Your Honour, have personal information and have personally

2 dealt with Mr. Jokic, and that's why we really believe that we require

3 that they are present in the courtroom for cross-examination. Post-1995

4 Dayton Accord, they worked with Mr. Jokic, and the content of their report

5 I have discussed with the Prosecution. We are going to revisit that and

6 we will be discussing the necessity of that report. But those witnesses

7 have personal information dealing with Mr. Jokic, and I think they're

8 relevant and should be called to be cross-examined.

9 As the Court knows, one of the main issues in our case is that

10 Mr. Jokic denies ever being a part of some of the intercepts that the

11 Prosecution attributes to him during July 14th, 1995. Peter French,

12 Robert Greenberg, and another Prosecution witness that I'm adding to my

13 list that I would like to cross-examine is Ms. Stephanie Frease who was

14 their expert witness that they called in the Krstic case. We intend to,

15 if the Prosecution doesn't call them, they will have to be called during

16 the Defence case; that is assuming that at the end of the Prosecutor's

17 case, the Prosecution has met their burden of proof and Mr. Jokic is not

18 acquitted, and we do mount a Defence, then we would be calling these

19 Prosecution witnesses to come and testify, and at that point when they

20 testify, then maybe their reports would be admissible. But until then,

21 since this is one of the major issues in the Defence case, we feel that

22 Mr. French, Mr. Greenberg, and Ms. Frease should appear in the

23 Prosecution's case to be cross-examined. We also have Dean Manning, and I

24 think I should have Mr. Butler on there. But I know that we definitely

25 want to cross-examine Dean Manning who is the author of the report of the

Page 1444

1 Srebrenica investigation and Mr. Butler who has continuing --

2 THE INTERPRETER: Could you slow down, Ms. Sinatra, please.

3 MS. SINATRA: I'm sorry. These two experts have updated versions

4 specifically dealing with the addition of the Zvornik Brigade at this

5 time, and they are very relevant and everything that they have presented

6 to this -- to the OTP that we've read is at issue. Of course, when we

7 filed our response at that time on March 31st, 2003, we were not aware of

8 Patrick Cordingley which we also would need to -- he's not 92 bis. I'm

9 sorry. Those are the only 94 bis experts that we request to appear live

10 in the courtroom for cross-examination.

11 JUDGE LIU: Thank you very much. To my knowledge, Peter French

12 and Robert Greenberg, both of them have been dropped from the list of the

13 expert witnesses. Is that true?

14 MS. DAVIS: Yes, Your Honour. I think we filed a motion on the

15 10th of June dropping those, requesting to drop them.

16 JUDGE LIU: Yes. Thank you.

17 And as for that witness, forensic document expert, Mr. Ten Camp,

18 we feel it's very difficult to evaluate the importance of the report

19 because we haven't got any relevant documents in this aspect. Could you

20 give us some explanation on that.

21 MS. DAVIS: Your Honour, the three forensic document experts,

22 that's Ten Camp, Fagle, and de Koeijer, all are testifying about the same

23 document, which is Exhibit 905 in the Krstic case. This is a document

24 that relates to the handover of the Drina Corps command. It really

25 relates primarily to Mr. Krstic. I believe those documents -- they may

Page 1445

1 not have been attached in our submission to the Court. I'm not sure. We

2 can check on that.

3 JUDGE LIU: But why don't you -- do you need three experts

4 testifying to one document?

5 MS. DAVIS: I believe that there are issues regarding the stamp

6 impression as well as handwriting and whether there had been any

7 falsification to the document. And each of the experts sort of dealt with

8 a separate aspect of that. As I recall, the reports are each quite brief.

9 JUDGE LIU: I see.

10 Yes, yes, Ms. Sinatra.

11 MS. SINATRA: Yes, Your Honour, just as far as the forensic

12 document analyst from the Krstic case go, I think it's really irrelevant

13 to our case whether Mr. Krstic took over on July 10th or whether he took

14 over on July 20th because the chain of command is not affected in the

15 allegations in our indictment. So I think they're irrelevant actually in

16 the presentation of the evidence in this case.

17 JUDGE LIU: Well, at this moment it's difficult for us to rule

18 whether they are relevant or irrelevant.

19 MS. SINATRA: You're correct, we do need more information, Your

20 Honour. Thank you.

21 JUDGE LIU: And we noted that in those reports, all the experts,

22 or at least two experts use the words "the possibility," "there is great

23 possibility" which sounds like those experts are not quite sure about

24 certain facts. Maybe that's the way for the experts to deal with

25 something.

Page 1446

1 MS. DAVIS: I believe that is -- there are sort of varying degrees

2 in the various expert reports of how conclusive the findings are, which is

3 not unusual. The experts generally are applying a range of conclusivity,

4 I suppose it the best way to say it, to their findings.

5 JUDGE LIU: Well, we just want some documents, you know, which

6 were analysed by the forensic document experts to be identified for the

7 Trial Chamber and some explanations to be provided regarding their

8 importance.

9 MS. DAVIS: We would be happy to do that, Your Honour.

10 JUDGE LIU: As we understand, we have an additional handwriting

11 expert report. I believe that the Chamber is not in the possession at

12 this moment. Would you please furnish us with that report.

13 MS. DAVIS: We have copies here, Your Honour. Would you like them

14 on the Bench now or should we provide them after the hearing?

15 JUDGE LIU: Maybe after the hearing.

16 Yes, Ms. Sinatra.

17 MS. SINATRA: Yes, Your Honour --

18 JUDGE LIU: Well, you haven't finished yet.

19 MS. DAVIS: Sorry, we intend to file a notice of disclosure under

20 Rule 94 bis as we did with the other experts this afternoon, and we have

21 courtesy copies also of the filing in that form that we can provide in the

22 courtroom today. The actual report has been disclosed already to Defence

23 counsel last Friday.

24 JUDGE LIU: Thank you very much. Ms. Sinatra.

25 MS. SINATRA: Yes, Your Honour. I don't know whether the Court

Page 1447

1 would postpone reading the document until we've decided our arguments on

2 admissibility. We will be hiring a document analyst and handwriting

3 expert ourselves. I've contacted them yesterday and faxed them the copies

4 of the documents so that they will be responding and we will have a report

5 very soon also. But is it just admissible because they have completed it,

6 or do they have to call the witness here for cross-examination, and then

7 the report is admissible?

8 JUDGE LIU: Well, at least today, this Bench would not make any

9 decisions in this aspect. We just want to hear from the parties their

10 views and their objections to the admission of those reports. And I

11 believe that if you hired some expert report and you may file your expert

12 report in this aspect if we do not call them as a live witness to testify.

13 Do you agree with that?

14 MS. SINATRA: Well, Your Honour, I agree that I would like the

15 opportunity to file my own independent report. But I would also request

16 that Ms. K. Barr be called as a witness in the courtroom. Once her

17 document is analysed by our expert, then we would like to have the

18 opportunity to cross-examine her on her techniques and the facilities that

19 they use and authenticate its reliability or disprove the reliability of

20 the report.

21 JUDGE LIU: Thank you. We will bear in mind your comments.

22 MS. SINATRA: Thank you.

23 [Trial Chamber confers]

24 JUDGE LIU: Well, I think that's all of our questions from the

25 Bench. Is there anything else that the parties would like to bring to the

Page 1448

1 attention of this Bench? Yes, Mr. Karnavas.

2 MR. KARNAVAS: I would, Your Honour, because in one of our motions

3 we did indicate that we certainly objected to Mr. Butler's findings, both

4 of them or three of them, I believe, and wished to cross-examine him, and

5 I do believe that he intends -- the Prosecution intends to bring him.

6 There is in that particular motion, I also note, that we object to all

7 military expert reports from the Prosecution. But just to be on the safe

8 side, since subsequent to that, we were disclosed with a few pages of

9 question and answer expert report, or whatever you want to call it, from

10 General Cordingley, today we will be filing a motion or just a response so

11 we have a written objection to that particular question and answer

12 statement or report. And of course, we would be delighted to have the

13 General come here so we could hear from him and cross-examine him.

14 JUDGE LIU: Thank you. Ms. Davis.

15 MS. DAVIS: Yes, Your Honour, I just wanted to respond to a couple

16 of things that have come up. First, there has been some discussion about

17 Mr. Manning, Mr. Butler. They are both live witnesses on the

18 Prosecution's list, so I don't believe there's any dispute as to whether

19 they will be available for cross-examination.

20 The question of the Maloney and Brown report, which is a single

21 report, Ms. Sinatra indicated that we had met prior to this hearing, and

22 in fact we did. And our understanding is that Ms. Sinatra has some

23 interest in questioning these witnesses, or Mr. Maloney anyway, on

24 personal information about Mr. Jokic. And our position on that would be

25 that if the witness needs to be brought here for cross-examination because

Page 1449

1 of the substance of his expert report, that would be appropriate. It

2 sounds to us, and I don't know the details, but it sounds to us as if

3 this is something of an entirely different nature. And if it's not the

4 subject of his expert report, I'm not sure it's appropriate to bring the

5 witness here for cross-examination on those points. We can certainly put

6 the Defence in touch with the witness if they wish to call him as a

7 witness of their own.

8 Finally, on the question of the Brunborg report. As you're aware,

9 we filed a motion under 92 bis for the admission of this report -- I'm

10 sorry, for the prior testimony because we believe it doesn't go directly

11 to the acts and conducts of the accused, as that has been interpreted by

12 the Trial Chambers of this Tribunal. It's of course in the Court's

13 discretion using the factors set forth in 92 bis (A), but we believe one

14 of those factors goes directly to this kind of evidence, and that's

15 (A)(i)(c), which consists of a general or statistical analysis of the

16 ethnic composition, et cetera. It sounds as if Mr. Karnavas wants to

17 address some questions about Mr. Brunborg's qualifications, perhaps bias

18 issues, as well as some issues he raised with respect to his updated

19 report. We wouldn't have any objection to bringing the witness here for

20 cross-examination on those issues, but I believe the initial report is

21 appropriate for admission under 92 bis.

22 JUDGE LIU: Thank you very much.

23 Ms. Sinatra, yes.

24 MS. SINATRA: Yes, Your Honour. I just wanted to re-address the

25 issue of Maloney and Brown. It was my understanding at the close of our

Page 1450

1 meeting today that I was going to review those reports and get back to the

2 Prosecutor, and we had not come to a final conclusion on Malone and Brown.

3 And I promise to do that. And I will get back to Ms. Davis on the

4 relevancy of those expert reports. I would also like to express our

5 objections to the form of the semi-pseudo report from General Patrick

6 Cordingley, that has been presented to us, and we ask that the Court order

7 that a more formal expert report be issued and that, of course, it not be

8 admitted in evidence in any form except if the witness will appear in

9 Court to testify.

10 Do I have a couple of other issues to bring up, but should we wait

11 until we finish this?

12 JUDGE LIU: Yes. Well, as for that Maloney and Brown report, how

13 soon could you file your response? Because we have already given you the

14 opportunities, and we hope we could render a decision in this aspect

15 before the summer recess.

16 MS. SINATRA: Well, Your Honour, the summer recess begins August

17 1st. Is that correct?

18 JUDGE LIU: Yes.

19 MS. SINATRA: I promise to have a response in the next five days.

20 JUDGE LIU: Yes. Thank you very much.

21 MS. SINATRA: Thank you.

22 JUDGE LIU: But in this aspect, you know, I agree with what

23 Ms. Davis says concerning calling these two expert witnesses as live

24 witnesses, to testify on certain factual issues rather than the contents

25 of the report.

Page 1451

1 MS. SINATRA: Your Honour, I was going to revisit the contents of

2 the report, and we may have an agreement on that if I could just revisit

3 that in the next few days and write a formal response to the Trial Chamber

4 and to the Prosecution.

5 JUDGE LIU: Thank you.

6 MS. SINATRA: Thank you.

7 JUDGE LIU: Are there any other matters? Yes, Mr. Karnavas.

8 MR. KARNAVAS: I just wanted a clarification from Ms. Davis, based

9 on what Ms. Davis had indicated. First, I'm not suggesting that Mr.

10 Brunborg is biased simply because he was working for the Prosecution. I'm

11 just saying that he may not be totally objective. That remains to be

12 seen. But from listening to the explanation as to why they wish to bring

13 Mr. Brunborg here to testify would seem to me that it's relevant to the

14 case if indeed it is what she is suggesting, you know, that they merely

15 just want to bring him here for demographic purposes and nothing more.

16 But I dare say, the whole purpose of them bringing him here is to

17 bootstrap his testimony to an argument that they will be making with

18 respect to the charge of genocide, which is what they did in the Krstic

19 case.

20 However, I am very grateful that they agree with our position that

21 he should be brought here. However, there were some qualifications, or at

22 least she seemed to indicate for limited purposes of cross-examination, I

23 think that his entire report is subject to cross-examination, and I think

24 that if the Prosecution does intend to make an argument based on his

25 findings with respect to the issue of genocide, then I think we need a

Page 1452

1 clear answer because obviously that's going to dictate the limitations

2 that you may place upon us with respect to cross-examination. Thank you.

3 JUDGE LIU: Any response from Ms. Davis?

4 MS. DAVIS: We may well use this report in making our arguments

5 regarding genocide. I don't believe that that takes it out of the realm

6 of 92 bis based on the jurisprudence of this Tribunal.

7 JUDGE LIU: Well, I believe that this report is very important.

8 But it goes to proof of matters other than the acts and conducts of the

9 accused. So I wonder whether there's really a necessity to cross-examine

10 this witness by Defence counsel.

11 MR. KARNAVAS: Your Honour, the -- if we look at the -- if we

12 deconstruct the indictment, they have charged Mr. Blagojevic with a joint

13 criminal enterprise, one of the counts being complicity to commit

14 genocide. Now, if they didn't have that in the indictment, I would agree

15 with you. But he's charged with genocide in essence, or being

16 complicitous to committing genocide. And they are going to need to try to

17 prove that first of all a genocide occurred, or there was complicity to

18 commit genocide, that's step number one; and number two, whether

19 Mr. Blagojevic was a part of that joint criminal enterprise. I think we

20 need to get to step one first, and I think that's where that report comes

21 in. I don't see, if you look at how he was cross-examined in the Krstic

22 trial with, as I said, six pages out of 68, many of the questions not

23 really relevant. And in fact, if you look in one of the pages, I believe

24 it's the second page of the cross-examination, the attorney in that

25 particular case indicated that he did not have all of the material prior

Page 1453

1 to commencing the cross. I do believe it violates Mr. Blagojevic's right

2 to confrontation, especially if the Court, the Trial Chamber, is going to

3 be relying on this particular report in making a decision whether there

4 was genocide or complicity to commit genocide. And I don't think, and --

5 well, also we have the Prosecution's concession for the first time, I

6 mean, first they danced around the issue. Finally, you know, with asking

7 for a clarification, they come out and tell us the truth, which is, yes,

8 indeed, they intend to use that for their arguments at the end of the

9 trial in asking that you find beyond a reasonable doubt that genocide

10 occurred and Mr. Blagojevic was engaged in complicity to commit genocide.

11 So I think given their admission, and also given their concession, I

12 should say, that Mr. Helge Brunborg should come here and testify, I think

13 that in all fairness to the Defence, that we should hear from him because

14 otherwise I will have to -- I can only challenge him by bringing in my own

15 expert. And it would be very difficult to have one expert just challenge

16 a cold transcript.

17 JUDGE LIU: Well, Mr. Karnavas, you have to understand that to

18 prove genocide, you need a lot of preconditions. The specific number of

19 the population, the reduce of the percentage of the components of the

20 population in such an area is not necessarily implies there's a genocide.

21 MR. KARNAVAS: I agree. I agree.

22 JUDGE LIU: Yes. But I agree with you that it's an important

23 report, and we'll study it very carefully, and we'll make our decision at

24 a later stage.

25 MR. KARNAVAS: Thank you, Your Honour. And also please keep in

Page 1454

1 mind that he was an employee of the Office of the Prosecution. I think

2 that does have some significance as opposed to being, you know, someone

3 from an independent source. Thank you.

4 JUDGE LIU: Well, I don't think, you know, it is in the rule

5 there's a qualification for the expert witness. It's not like in other

6 jurisdictions, you know, to be an expert, you should be purely objective

7 and should have nothing to do with both parties, with the incident.

8 That's in some jurisdictions. But here, you know, in our Rules of

9 Procedure, there's no specific article regulating the qualification of an

10 expert witness.

11 MR. KARNAVAS: I agree with you, Your Honour. And even in other

12 jurisdictions, you can have somebody who is employed by the Prosecution or

13 the police coming as an expert. But I do believe that no matter where you

14 go, including The Hague, one factor for the Court to consider is perhaps

15 bias on the part of the witness because he's employed, and of course since

16 he is employed by the very same institution that is trying to achieve a

17 particular goal, it may be "may," and I don't say that there will be, but

18 there may be some instances where they may fudge on certain facts. I'm

19 not suggesting that that is the case here, and it would be unfair for me

20 to do so simply by reading his report or his testimony. I do, however,

21 believe that that is an area that is necessary for the Defence to probe

22 because after all, the finders of the fact need to make a decision as to

23 the objectivity of the individual. I mean, Butler is a good example. He

24 works for the Prosecution for five years, six, or whatever. Hardly what I

25 would consider somebody who's objective especially when he's out there day

Page 1455

1 in and day out with the Prosecutors, meeting the witnesses, having lunch

2 with the prosecutors, spending weekends with the prosecutors, travelling

3 together. Sooner or later you begin to lose that objectivity. And I'm

4 not suggesting that the report itself may not be objective, but I think it

5 calls into the question the objectivity and it's an area proper for the

6 Defence to probe and for obviously the Trial Chamber to consider in

7 factoring what weight, if any, if any, to give the report and/or the

8 testimony.

9 JUDGE LIU: Yes, Mr. Karnavas, you have to remember that your

10 theory is also equally applied to your expert witness in your case in the

11 future.

12 MR. KARNAVAS: I do, Your Honour, I do. So I say this knowing

13 that what is good for the Prosecution is good for the Defence. Thank you.

14 JUDGE LIU: Thank you. Any other matters?

15 MS. DAVIS: No, Your Honour.

16 JUDGE LIU: Ms. Sinatra?

17 MS. SINATRA: Your Honour, are we completed with the 94 bis

18 discussion?

19 JUDGE LIU: I think so, unless you have any other matters to bring

20 up.

21 MS. SINATRA: I don't know if this is considered a Status

22 Conference, but I would like to bring up two other matters that I think

23 are pressing on the Defence of Mr. Jokic.

24 JUDGE LIU: Yes, please.

25 MS. SINATRA: And just expending further on Mr. Karnavas's

Page 1456

1 arguments on experts and having to call our own, we do have a problem.

2 The Registry has approved 100 hours total for all experts that come to

3 testify for the Defence. And as you can see by the mammoth amount of

4 Prosecution experts that are coming, the five, six, seven years they have

5 spent with their expert witnesses, being able to prepare their case, and

6 we've hired one expert so far, and he has used 70 hours. That leaves 30

7 hours if we want to hire a handwriting expert, if we want to hire a

8 military expert, if we want to hire anybody to contest or analyse the

9 expert reports of the Prosecution. We do not have enough facilities. We

10 don't have enough hours. We don't have any money to do so. And I don't

11 know how we're going to try to justify this under Article 20 and 21, that

12 equality of arms which I know you're all tired of hearing about. But

13 since they have spent 50.000 hours on their experts, and we are only

14 allowed a hundred hours total, I think there has been some input from the

15 Trial Chamber because the Registry has made a decision, and I can't take

16 it any further without any assistance from the Trial Chamber at this

17 point. So that's one of the issues I have to raise. I doubt if the

18 Prosecution has any input into this issue.

19 MS. DAVIS: We don't.

20 MS. SINATRA: And may I request assistance from the Trial Chamber

21 in dealing with this and assisting us in getting more facilities, more

22 hours, in order to hire our expert witnesses. I contacted one yesterday,

23 a handwriting expert, but I only have 30 hours left for our whole Defence

24 team. And my intercept and linguistic expert isn't completed yet. So

25 we're really at a disadvantage at this point.

Page 1457

1 JUDGE LIU: Well, Ms. Sinatra, you know, not unlike any other

2 domestic jurisdictions, the Registrar is an independent branch of this

3 Tribunal. We cannot order the Registrar to do anything. We only could

4 convey your comments and observations to the attention of the Registrar

5 and ask them to do whatever possible to help you to get out of that

6 situation.

7 MS. SINATRA: That's what I'm asking for. Thank you.

8 JUDGE LIU: This is all we could do.

9 MS. SINATRA: That's the best that I could ask for right now, and

10 I would appreciate any assistance that the Trial Chamber could give us at

11 this time in the way of a recommendation or an opinion.

12 And then I have one other matter to bring up. That is the

13 LiveNote. The Prosecution has LiveNote. The Chambers have LiveNote. The

14 team of Blagojevic have LiveNote. But the team of Jokic has been denied

15 access to the LiveNote programme. So when everybody can cut and paste

16 from a record into documents, we don't have that ability. I have

17 requested LiveNote. They said that they have made a recent decision that

18 it's not given to Defence counsel any more. I don't know how we can

19 overcome this disadvantage in the middle of trial right now. But because

20 everybody in the courtroom has access to LiveNote except this team, I

21 think it puts us at an excessive disadvantage at this point. I'm only

22 asking the Court one more time for an opinion or a recommendation, or even

23 an order that we all be able to place our documents in here and take our

24 records home and cut and paste from them. We don't have the programme

25 installed on our computers to be able to utilise these computers that are

Page 1458

1 provided for us during trial in the courtroom. So it's another Status

2 Conference issue that I would like to have some input from the Trial

3 Chamber on.

4 JUDGE LIU: Well, I think you are not the only one who does not

5 have the LiveNote. I myself don't have the LiveNote. And right from the

6 start of this case, that is 14th of May, I made several requests to

7 install the LiveNote on my computer. But up to now, I haven't got any.

8 But do you get hard copies of the transcript the next morning?

9 MS. SINATRA: It's not the next morning. It's five or six days

10 later before we get the hard copy in our box. But the disadvantage is

11 that the other people can cut and paste from a document and put it into --

12 I'm sorry if I have insulted the Registry in any way. I think that we

13 have -- they're much more current than that. But it's too late in order

14 to respond like the next day if we wanted to file something, we don't have

15 the ability to cut and paste from the LiveNote. And you know, if we have

16 to sit and type everything out once more from a hard copy, it puts us at a

17 disadvantage again. I want to express to the Trial Chamber, I'm very

18 sorry that you don't have access to the programme either. And I do hope

19 that when you make your request, that you sign our name at the bottom

20 also. If you could assist us.

21 JUDGE LIU: Well, my practice is I have it copied on a hard disk

22 and I bring it back to my office to look at it. But certainly we will

23 convey your complaints to the Registrar and ask them to solve this problem

24 as soon as possible, including mine.

25 MS. SINATRA: I wish you the best of luck and thank you.

Page 1459

1 JUDGE LIU: Thank you.

2 Are there any other matters?

3 MS. DAVIS: Nothing further from the Prosecution.

4 JUDGE LIU: I see. Mr. Karnavas?

5 MR. KARNAVAS: Nothing, Your Honour.

6 JUDGE LIU: Ms. Sinatra?

7 MS. SINATRA: Nothing further, Your Honour.

8 JUDGE LIU: Yes. The last matter is about the resume of the

9 hearings. As we mentioned before that after the first group of the

10 witnesses, we will hear some substantive, material witnesses, including

11 Mr. Obrenovic and Mr. Nikolic. So we believe that before the counsel

12 issue for Mr. Blagojevic is finally settled, it is very unsafe for us to

13 proceed on those substantive witnesses. So we decided to have a break

14 until after the summer recess. We'll resume somewhere in the middle of

15 September. If the decision is rendered by the Appeals Chamber on the

16 counsel issue, we might hear some substantive witnesses. And if not,

17 we'll continue to hear the three witnesses left before the summer recess.

18 This Trial Chamber will issue a scheduling order at the beginning of the

19 next week so that everybody will be informed on the re-opening date of

20 this hearing.

21 Yes, Mr. Waespi.

22 MR. WAESPI: Just one point for clarification, you only want to

23 hear the three remaining witnesses, or also Mr. Obrenovic and Mr. Nikolic?

24 JUDGE LIU: Well, it depends whether we have received the

25 decisions by the Appeals Chamber rendered by the appeal. So at this

Page 1460

1 moment, it's very difficult for us to predict how soon that decision will

2 be rendered by the Appeals Chamber. We understand there will be three

3 weeks of summer recess and only after the summer recess that the appeal

4 could be entertained by the Appeals Chamber. So we could only make a

5 tentative scheduling order. We'll begin the hearing somewhere in the

6 middle of September. If we have a decision, there's a possibility we hear

7 some more substantive witnesses. If we don't have that decision, we'll

8 continue to exhaust the witness list in the first group of witnesses. Is

9 that clear?

10 MR. WAESPI: Yes, it is, Mr. President.

11 JUDGE LIU: Thank you.

12 Yes, Ms. Sinatra.

13 MS. SINATRA: Yes, Your Honour. I have visited with the

14 Prosecution about this issue, and I think I've mentioned it in Court

15 before, that it will be very difficult for us to be prepared for

16 Mr. Obrenovic before October. He is the most important witness that the

17 Prosecution is bringing to testify with evidence that would be damaging to

18 Mr. Jokic. Even if there is a decision by mid-September, we would like to

19 request the Court to hear the other witnesses first to allow us more time

20 to prepare for Mr. Obrenovic. That may put his testimony for us -- may be

21 solved, and he may not come until October at that point. But instead of

22 if there's a decision, putting him on the stand when there are other

23 witnesses that could be heard and give the Defence a chance for

24 preparation for this witness, we would request that the remaining

25 witnesses on the list from pre-summer break be heard first, and that

Page 1461

1 Mr. Obrenovic be heard after these witnesses are completed.

2 JUDGE LIU: Well, I think Mr. Obrenovic pled guilty in May. And

3 in September, there will be three or four months that the Defence team of

4 Mr. Jokic knows that he will be a witness to testify against your client.

5 I believe that that period of time is enough for you to prepare the

6 cross-examination to that very important witness from the Prosecution.

7 But anyway, if you have any suggestions, you are free to file written

8 submissions, and we'll consider it.

9 MS. SINATRA: Yes, Your Honour. I do understand that it appears

10 to be sufficient time to prepare. But when you're in trial and you're

11 preparing for each witness each day, it takes away from the time that you

12 have to spend on the most important witness. And now that we're having a

13 break, we can begin that preparation properly. I just ask the Court not

14 to put the rights of the accused on the same level, Mr. Jokic being

15 presumed is not, on the same level with a man who has pled guilty and just

16 wants to be sentenced because you can't compare the issues here.

17 Mr. Jokic is presumed innocent, and I'd like for -- I'm just asking the

18 Court to please put the other witnesses before Mr. Obrenovic. Thank you.

19 JUDGE LIU: Thank you very much.

20 Well, I think that's all for this hearing. We're adjourned until

21 middle of September.

22 --- Whereupon the hearing adjourned

23 at 3.16 p.m. Sine die.