Tribunal Criminal Tribunal for the Former Yugoslavia

Page 122

 1                           Monday, 26 January 2009

 2                           [Further Pre-Trial Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 3.33 p.m.

 6             JUDGE PARKER:  The case can be called, please.

 7             THE REGISTRAR:  Good afternoon, Your Honours.  This is case

 8     number IT-05-87/1-PT, the Prosecutor versus Vlastimir Djordjevic.

 9             JUDGE PARKER:  Thank you very much.

10             We assemble this afternoon to complete the pre-trial procedures,

11     with a view to the trial itself in this matter commencing tomorrow.  We

12     met some three to four weeks ago to have an earlier consideration to some

13     of these pre-trial matters, and we adjourned on that occasion with a view

14     to having this final opportunity to look at issues that may have arisen

15     in the meantime.

16             Mr. Stamp, you appear for the Prosecution?

17             MR. STAMP:  Yes, Mr. President.  May it please you, I appear for

18     the Prosecution, along with Mr. Matthias Neuner, trial attorney, and our

19     case manager is Ms. Line Pedersen.

20             JUDGE PARKER:  Thank you very much, Mr. Stamp.

21             MR. STAMP:  Thank you, Your Honour.

22             JUDGE PARKER:  Mr. Djordjevic.

23             MR. DJORDJEVIC: [Interpretation] Good afternoon.

24             THE INTERPRETER:  Interpreter's note.  The microphone is not on.

25             JUDGE PARKER:  Your microphone.

Page 123

 1             MR. DJORDJEVIC: [Interpretation] With me on my team is my

 2     co-counsel, Mr. Djurdjic, our two legal assistants, Mr. Popovic and

 3     Ms. O'Leary.  Thank you.

 4             JUDGE PARKER:  Thank you, Mr. Djordjevic.

 5             Now, on previous occasion some time ago, the accused has pleaded

 6     not guilty to the counts in the current indictment.  We take it,

 7     Mr. Djordjevic, that the accused maintains his pleas of not guilty.

 8             MR. DJORDJEVIC: [Interpretation] Yes, that is correct, Your

 9     Honour.

10             JUDGE PARKER:  Thank you very much.

11             Now, there are some matters which need to be considered on this

12     occasion.  The first is the witness list and here we look to you

13     primarily, Mr. Stamp.  You were not here, but counsel appearing for the

14     Prosecution on the 16th of December, when this Pre-Trial Conference was

15     commenced, was to file a response -- I have confused that matter,

16     Mr. Stamp.  Let me correct it.

17             A list of intended Prosecution witnesses was filed on the 12th of

18     December last year, and that list proposed to withdraw 17 witnesses from

19     the number that had been previously listed.  And the Defence was to file

20     a response to that proposal by today, so that rather than looking to you,

21     Mr. Stamp, you can relax, sit back and be content; and I will turn

22     instead to Mr. Djordjevic.

23             The position, could you indicate, please, Mr. Djordjevic, is it

24     that you have no position?

25             MR. DJORDJEVIC: [Interpretation] Yes, you're correct.  Yes, you

Page 124

 1     are right, Your Honour.  The Defence will file the submission by the end

 2     of the deadline today, as we have undertook.  So we will do that by the

 3     end of today.

 4             JUDGE PARKER:  Would you indicate, do you object to the

 5     withdrawal of any of these 17 witnesses?

 6             MR. DJORDJEVIC: [Interpretation] I would like to leave that until

 7     the end of the deadline because the Defence will continue considering the

 8     issue after we complete the Pre-Trial Conference to see what we will

 9     decide.  But let me tell you that in all likelihood, we will not be

10     opposing it.

11             JUDGE PARKER:  Very well.  If there is no opposition, you can

12     anticipate, Mr. Stamp, that the Chamber will, in due course, agree.  Of

13     course, if there is opposition in respect of any of the proposed 17

14     withdrawals, the Chamber will have to give consideration to the reasons

15     advanced for that opposition.  But we will await until the response is

16     received by the end of today.

17             Is there any -- I assume from what you have said, Mr. Djordjevic,

18     that there is no particular matter you want to put to the Chamber today

19     about those witnesses and that you propose that we wait until you've

20     finalised your consideration?

21             MR. DJORDJEVIC: [Interpretation] Precisely.

22             JUDGE PARKER:  Thank you very much.

23             I do now turn to you, Mr. Stamp.  On the 16th of December it was

24     indicated by your colleague who was here that a motion to add two further

25     witnesses to the Rule 65 ter list was intended and that it would be filed

Page 125

 1     by mid-January.  That has not yet occurred.  Can you tell us what the

 2     position is, please?

 3             MR. STAMP:  We are in the process now of discussing the

 4     availability of the witnesses with the witnesses, and we have, in so far

 5     as at least one of those witnesses is concerned, we have now come to a

 6     position; and we propose to file that motion within the next few days.

 7     But we were not able to conduct the inquiries we wanted to conduct

 8     because of the period we were in, which was immediately followed by the

 9     Serbian Orthodox holiday period.  Those inquiries have been conducted,

10     and we're in a position to formally move the Court in respect of these

11     witnesses.

12             JUDGE PARKER:  Thank you.  You will appreciate that it would be

13     to the advantage of everybody if we can get matters such as the witness

14     list resolved and clear so that both Prosecution and Defence as well as

15     the Chamber can proceed with a certain knowledge that witnesses will be

16     called or will not be called.

17             MR. STAMP:  All right.

18             JUDGE PARKER:  We look forward to your motion in respect of one

19     of those witnesses at least in the very few days.

20             MR. STAMP:  Very well.  We shall do that.  And since I'm on my

21     feet in respect to this matter, I should advise the Court that we may -

22     we may - seek to file within the next couple of weeks in addition to that

23     another motion in respect of two or three other witnesses that we have

24     been trying to speak to, but again we were delayed because of the

25     vacation period.  But when that time comes, Your Honour, we will advise

Page 126

 1     the Court, if and when it comes.  However, with respect to those two

 2     mentioned by my learned friend on the last occasion, we will file within

 3     the next few days.

 4             JUDGE PARKER:  Thank you, Mr. Stamp.  You already have the

 5     Chamber's indication that it would like these issues to be resolved

 6     quickly --

 7             MR. STAMP:  Very well, Your Honour.

 8             JUDGE PARKER:  -- and you will readily appreciate that the more

 9     we get into the trial, before you move a motion to have an additional

10     witness or several added, the more there is a possibility that there

11     could be a difficulty created by your motion.  So it's in the

12     Prosecution's interest to move quickly in this matter.

13             MR. STAMP:  Indeed, Your Honour.

14             JUDGE PARKER:  Thank you.

15             Now, there are some motions that are outstanding.  I see that you

16     would like to speak, Mr. Djurdjic.

17             MR. DJURDJIC: [Interpretation] Your Honour, I would like to

18     respond to what my learned friend Mr. Stamp has said by way of an

19     explanation and also to resolve a problem that has cropped up, and that

20     pertains to the new witnesses that Mr. Stamp has been talking about, the

21     new witnesses that should be included on the Prosecution witness list.

22             The Prosecution has been pressuring witnesses who are not on the

23     65 ter list.  Those witnesses were invited for an interview in the course

24     of October 2008.  They responded to the summons, and they told the

25     Prosecution that they did not want to appear as Prosecution witnesses but

Page 127

 1     as Defence witnesses.  They were willing to conduct an interview with the

 2     Prosecution, but provided, the Defence is informed about it.

 3             The Prosecution has failed to inform us about that, and I

 4     understand that; but even after we talked to the witnesses, we still have

 5     not heard from the Prosecution.  And we feel that the Prosecution has

 6     tried to wriggle out of the rules that exist here in such a way that it

 7     sent a summons through the Tribunal asking for those witnesses to be

 8     interviewed in accordance with the Serbian Law on Criminal Procedure,

 9     which is substantially different from the Rules of Procedure of this

10     Tribunal.  And witnesses are denied a number of rights, and there is a

11     different procedure for the interview, quite unlike the one when the

12     Prosecution is taking statements under the rules of the Tribunal.

13             On the 22nd and the 23rd of January of this year, the Prosecution

14     has sent a letter rogatory asking for those witnesses to respond to the

15     summons issued to them by the war crimes court in Belgrade, because they

16     wanted to take a statement.  In accordance with the Serbian Law on

17     Criminal Procedure, a witness is bound to give a statement, although the

18     Rules of Procedure of the Tribunal grant the witness the right to decide

19     whether they want to be a Prosecution witness or a Defence witness.

20             And the Prosecution has failed to inform the Defence about the

21     wish of those witnesses to appear as Defence witnesses.  Of those

22     witnesses who responded, one of them was on the Prosecution's 65 ter list

23     and three of them were not.

24             I think that the Prosecution is now trying to intimidate the

25     witnesses by resorting to this procedure, and although I think that the

Page 128

 1     Prosecution is not entitled to send letters rogatory to the Serbian

 2     courts because these are two different courts and this is not judicial

 3     assistance in accordance with the Serbian Law on Criminal Procedure,

 4     efforts are made to summon those persons and to take statements from them

 5     without the Defence being present.  The Defence was not notified about

 6     that.  We were on route to The Hague when we were told that such summons

 7     or such requests were issued.  And those witnesses were heard by an

 8     investigative judge of the district court in Belgrade, and I have yet to

 9     learn about the outcome.

10             I think that the Prosecution has had enough time to decide which

11     witnesses to call and propose that they be heard, although, of course, we

12     do not propose their right to investigate further.  It is, indeed, their

13     right.  But if they want to talk to Defence witnesses, I think that they

14     have to talk to the Defence.  The only binding order, according to the

15     rules of this Tribunal, is the one that is issued by the Trial Chamber;

16     and the Prosecution sent a request for judicial assistance to a judicial

17     organ of the Republic of Serbia purporting to be an organ of the

18     Tribunal, and the witnesses are duty-bound to respond to the summons and

19     to give evidence in accordance with the Serbian Law on Criminal

20     Procedure.  And I think that this is something that should be discussed.

21             Thank you.

22             JUDGE PARKER:  Mr. Stamp, are you able to throw any light on this

23     matter?

24             MR. STAMP:  Yes, Your Honour.  I think -- I'm not sure if here

25     and now we need to discuss what we propose to litigate later on and apply

Page 129

 1     to add certain witnesses.

 2             But I think it is not appropriate to say that there is an attempt

 3     to intimidate witnesses to give statements, when all that happened was

 4     that a request was made of the war crimes chamber in Belgrade to

 5     interview the witnesses.  The witnesses have in the past - the few that

 6     have been interviewed - have claimed they are Defence witnesses.  There

 7     is no Defence witness list before the Court at this point in time, and

 8     the Defence list only is filed after the Prosecution's case close.  I

 9     think the jurisprudence of the Tribunal is that no party has ownership of

10     any person who is a witness to important material issues before the

11     Court.

12             So there is a history as to the efforts we have made to interview

13     these witnesses and to make them available to the Court so that the

14     entire truth could be -- and I think there is an indication that I'm

15     probably going a little bit too fast.  I will slow down.  So that all the

16     Court should hear about the matters before it, should be completely

17     ventilated.

18             We propose to file a motion asking that the Court add some of

19     these witnesses to the list, and we will set out the history.  And I

20     think at that point in time, the matters could be ventilated.

21             As far as what my friend said just now is concerned, I'm not sure

22     what exactly he meant when he said "wriggle out" of obligations.  But my

23     information from the war crimes court in Belgrade is that the defence

24     lawyers, or the chambers of the defence lawyers, were advised that these

25     persons were summoned to be interviewed, but they indicated that they

Page 130

 1     would not be available.

 2             JUDGE PARKER:  I take it from what you're saying, that any

 3     interviewing procedure is taking place in Serbia by the war crimes

 4     chamber --

 5             MR. STAMP:  That was how it --

 6             JUDGE PARKER:  -- of the Serbian court.

 7             MR. STAMP:  It was a procedure --

 8             JUDGE PARKER:  It is not a matter being undertaken by yourself or

 9     the Office of the Prosecutor.

10             MR. STAMP:  It was a request we had made for assistance from the

11     Serbian court that they undertake these interviews, since the witnesses

12     had refused to be interviewed by us.

13             JUDGE PARKER:  Yes.  And in due course, there will be or there

14     may be a motion in respect of some of these witnesses, for them to be

15     added to the list?

16             MR. STAMP:  Indeed, Your Honour.

17             JUDGE PARKER:  Thank you very much, Mr. Stamp.

18             Could I suggest, Mr. Djurdjic, that at this point, if there is

19     some failure to comply with the applicable Serbian law, that is a matter

20     that ought to be taken up with the Serbian authorities; that as far as

21     this Chamber is concerned, if the Prosecution moves to have a witness

22     added to its list, and it appears to the Defence that that witness is

23     affected in some way by some impropriety in the obtaining of the

24     statement or evidence of that witness, that that will be the time and

25     that will be the opportunity for the Defence to then put before this

Page 131

 1     Chamber its concern about what may have occurred in respect of the

 2     interviewing of that witness.

 3             At the moment there is no action which this Chamber could take or

 4     would want to take.  If it is that the Prosecution proposes to call that

 5     witness, then of course if there is some matter affecting the propriety

 6     of the statement or any statement obtained, the matter can then be put

 7     before us and ventilated, and the Chamber will then be able to consider

 8     whether there is some issue which requires decision or action, and of

 9     course it has to decide, the Chamber that is, whether that witness should

10     be added to the list of Prosecution witnesses.  And if there has been

11     some significant impropriety, that is a matter which this Chamber will

12     take into account in reaching its decision on the motion of the

13     Prosecution.

14             So for the present moment it would appear that no action is

15     called for or would be appropriate by this Chamber; that the Prosecution

16     clearly has notice of your concern from what you have now said.  And as I

17     have indicated, if the Defence has some concern at present about what is

18     being done in Serbia, that is a matter that ought to be pursued by you

19     with the Serbian authorities at this point.

20             When and if there is a motion before this Chamber concerning a

21     witness that's affected by this issue, then this Chamber will consider it

22     on the merits and take into account any matter which the Defence then

23     wishes to raise.

24             Is that clear enough for the moment?

25             MR. DJURDJIC: [Interpretation]  Yes, Your Honour.  But I'd just

Page 132

 1     like to say two things:

 2             First, the chamber for war crimes, on the basis of a letter

 3     rogatory from the Prosecution, insisting upon taking statements.  So

 4     their statements will be given even if we cannot, without your

 5     assistance, suppress that kind of action on the part of the Prosecution.

 6             The other way in which this can be done, in which statements can

 7     be taken, is regulated and has been regulated thus far in the following

 8     way:  The Prosecution has the right to interview the person in Serbia,

 9     and the witness cannot refuse to testify if the laws are applied.

10     Otherwise, they would bring shame on them or whatever.  So they are

11     compelled to comply with the Prosecution.  That is why we think that the

12     rules and regulations of the Tribunal have been by-passed in that way.

13             Now, it's up to the Prosecution to decide whether they're going

14     to use the witness or not, but they will obtain a statement in a manner

15     which is impermissible in my view.

16             Now, according to Serbian regulations, the Defence does not have

17     the right to ask to interview a witness with a letter rogatory and force

18     them to make a statement so that the Defence could have a statement of

19     that kind.  So I don't think we have equality of arms in that respect.

20             MR. DJORDJEVIC: [Interpretation] Your Honour, I would just like

21     to add --

22             JUDGE PARKER:  Sorry, Mr. Djordjevic, could we have one matter

23     settled early on in this trial.  If a counsel from the Defence or the

24     Prosecution raises a matter, the Chamber will hear that counsel about the

25     matter.  We will not hear more than one counsel from each side about the

Page 133

 1     matter.  So Mr. Djurdjic has been --

 2             MR. DJORDJEVIC:  I just wanted to clarify one very important

 3     legal issue, and I will continue in Serbian.

 4             [Interpretation] There's a problem in the fact that Serbia is

 5     duty-bound to cooperate with The Hague as a state in which many people

 6     were taken to trial and were tried for war crimes and sentenced for war

 7     crimes.  And in that sense, Serbia's obligations, and an international

 8     agreement has been signed to that effect, they are duty-bound to apply

 9     the rules exclusively of The Hague Tribunal when dealing with The Hague

10     trials; and the only one there is Zvornik, the Zvornik case, under 11

11     bis, and everything - the protection of witnesses, security measures, all

12     sorts of security issues - are conducted according to the rules and

13     regulations of this Tribunal, not Serbian law.  Thank you.

14             JUDGE PARKER:  You will appreciate that we heard you then.  From

15     now on, we will hear only one counsel on a particular matter.

16             MR. DJORDJEVIC:  Okay.

17             JUDGE PARKER:  Thank you.

18             There is no issue presently before this Chamber raising any

19     particular impropriety in the interviewing of any particular witness.

20     The jurisprudence of this Tribunal makes it very clear that there is no

21     ownership, if I can use that word, of a witness, and any party can

22     approach any witness and seek to obtain a statement from that witness; so

23     that the fact that the Prosecution is seeking to obtain a statement from

24     a person whom the Defence may intend to call is not in itself a matter

25     which gives rise to any impropriety under the procedures of this

Page 134

 1     Tribunal, as long as that is a matter which is clear in your mind.

 2             When it comes to a proposal to lead evidence before this Tribunal

 3     from a witness, if there is some issue affecting the honesty or the

 4     reliability of that witness or if there is some procedural defect in the

 5     way that witness's testimony has been prepared, those are matters which

 6     will then be considered by this Chamber, to see whether it affects the

 7     reliability of the evidence that it is proposed to lead.  It is then that

 8     any of the matters which you are now vaguely referring to would need to

 9     be considered in detail by this Chamber.

10             So I say again:  At this point, there is nothing for this Chamber

11     to deal with or to consider, but it may be in the future this issue will

12     arise in respect of one or more future witnesses.  Thank you.

13                           [Trial Chamber confers]

14             JUDGE PARKER:  Can the Chamber move on to 92 bis motions.  There

15     are three of those presently to be dealt with.  The Defence has responded

16     to them but was also, on the 16th of December, given an opportunity to

17     make any further submission that the Defence wished to by the 26th of

18     January.

19             Now, there have been no filings to date.  If none are received by

20     the end of today, the Chamber would propose to deal then with the motions

21     on the basis of the submissions that have been received from the parties

22     to this time.  I indicate that in case there is some difficulty of which

23     we are not aware.  There seems to be no suggestion of that from counsel,

24     so that in the absence of any further submissions from the Defence, the

25     Chamber will proceed then to consider the merit of those three motions.

Page 135

 1             There is also a motion pursuant to Rule 92 quater, which is in

 2     the same situation.  Clearly it is in the interests of all parties for

 3     these motions to be resolved promptly, and the Chamber will proceed to

 4     deliver decisions as soon as possible about those.

 5             At the hearing on the 16th of December, the Prosecution was

 6     required to file a Rule 92 ter motion because it was clear from various

 7     filings and submissions that the Prosecution contemplated utilising

 8     Rule 92 ter but had not filed any motion to authorise it to do so.

 9             On the 14th of January the Prosecution did file a Rule 92 ter

10     motion, and it appears to apply to some 61 witnesses.  By the order of

11     the Chamber given on the 16th of December, the Defence is to respond to

12     that motion by the 2nd of December.  We will look forward to the Defence

13     response --

14             MR. STAMP:  February, I think.

15             JUDGE PARKER:  What did I say?  I said "December."  I believe

16     everybody realised that I meant February.  So you still have several days

17     to go, Mr. Djordjevic, before any response is required.  It is the 2nd of

18     February, and in light of that response, the Prosecution's motion will

19     then be considered by this Chamber; and we will reach a decision in

20     respect of the proposal that Rule 92 ter be used in respect of 61

21     witnesses.

22             Now, today --

23             MR. STAMP:  May I -- if Your Honour is about to move on,

24     Mr. President, may I interject briefly?  If you're about to move on to

25     something else.

Page 136

 1             JUDGE PARKER:  I was about to say that you filed a further motion

 2     today.

 3             MR. STAMP:  Very well, yes, Your Honour.

 4             JUDGE PARKER:  Is that what you had in mind or something else?

 5             MR. STAMP:  Something else.

 6             JUDGE PARKER:  Tell us what the something else is, Mr. Stamp.

 7             MR. STAMP:  Before we reach the motion of today, Your Honours do

 8     have the authority under the rules to extend or deny the time -- change

 9     the time for responding to motions.

10             You had said the 2nd of February for the response of the 92 ter

11     motions, but the trial, I think, we propose to start the trial, I think,

12     on Wednesday, the 28th, to start hearing evidence and also to hear

13     evidence on Friday, the 30th.  The witnesses that are scheduled for those

14     days are witnesses who are subject to the application.

15             So the Prosecution -- I know it would -- might well present some

16     difficulty, but the Prosecution would ask that if a response and a

17     decision could be made in respect of those, just those two witnesses who

18     are scheduled for this week, who were listed also as 92 ter.

19             JUDGE PARKER:  Mr. Stamp, my reaction would be to suggest this is

20     a problem largely of your own making.  The motion was filed only because

21     the Chamber pointed out that action had not been taken and was needed.

22             MR. STAMP:  Indeed.  Indeed, Your Honour.

23             JUDGE PARKER:  The Rule 92 ter motion could be moved much earlier

24     and that would have given the Defence an opportunity to respond much

25     earlier and a decision could have been given, but that wasn't done.

Page 137

 1             MR. STAMP:  Indeed, Your Honour.  The standard practice -- well,

 2     I shouldn't say "standard."  The practice in respect of 92 ter in

 3     relation to witnesses that attend for cross-examination has been, at

 4     least in the previous case that myself and most of the team were involved

 5     in, that an indication would be given in a notice, I think it is two

 6     weeks or a week before the witness comes to testify, and many times the

 7     application would be done orally when the witness comes in front of the

 8     Court to testify.

 9             It was thought in those cases that it would not prejudice the

10     Defence if they were informed that this was the procedure to be adopted,

11     and the application was made at that time.  And that is why we did not

12     file earlier, because we were adhering to the previous practice, the

13     practice that we have become accustomed to in respect of 92 ter.  There

14     had been a difference in respect of 92 bis, where the witnesses were not

15     expected to attend at all, and the requirement had usually been that the

16     filing had to be done for all the witnesses, en masse, as early as

17     possible.  But the practice in respect to 92 ter, respectfully submitted,

18     has been not exactly the same and that is why -- although I'm prepared to

19     accept responsibility for not contemplating filing a 92 ter motion

20     earlier, but that has not really been a practice before.

21             JUDGE PARKER:  Mr. Stamp, I fear you may be, unconsciously no

22     doubt, falling into the danger, into the trap of thinking that because

23     something was practical in one trial, that that is the practice.  It is

24     not the practice that has been followed in other Trial Chambers, and a

25     motion for a witness to have the evidence in the form of Rule 92 ter is a

Page 138

 1     standard motion contemplated by the rules, and in the ordinary course

 2     that motion is moved well in advance of the witness being called and

 3     usually well in advance of the Prosecution case commencing, as it is with

 4     92 bis and 92 quater.

 5             Clearly, some special consideration was given to the Prosecution

 6     in the one case to which you refer.  Now, this Chamber has had no reason

 7     to contemplate any such special procedure, so we're back to trying to

 8     conduct the trial in accordance with ordinary procedures.  We have had a

 9     motion now in January for 92 ter, and we now find some 61 witnesses are

10     contemplated to be dealt with on that basis.  Because the trial is

11     starting before the Defence has had the ordinary opportunity to respond

12     to your motion, it could mean that two or three witnesses that you would

13     like to be -- have their evidence given under Rule 92 ter will not be

14     able to give their evidence that way because the Defence have yet to be

15     able to respond and the Chamber to consider your motion.

16             MR. STAMP:  Very well.  I --

17             JUDGE PARKER:  If there was some special problem about that, we

18     might see whether the Defence were able to cooperate in making an earlier

19     response.  But I don't gather from what you're saying that there's any

20     special problem.  You just had not anticipated that things would move

21     quite as quickly as they have.

22             MR. STAMP:  Indeed.  And there is a problem of the time, the time

23     that we had indicated for the witnesses.

24             JUDGE PARKER:  Well, that's going to bring us to another and a

25     bigger problem.

Page 139

 1             MR. STAMP:  Very well.

 2             JUDGE PARKER:  I have not called upon the Defence at this point

 3     over this issue because, as counsel will have heard, the position is that

 4     we would expect that until the Defence has had its ordinary opportunity

 5     to respond by the 2nd of February, we should not unnecessarily impose

 6     upon the Defence to do something more urgently.

 7             Now, if the Defence is content with that position, we'll leave it

 8     like that.  If the Defence wished to cooperate and say that it had no

 9     objection to one or more of these early witnesses that are affected, the

10     Chamber would, of course, hear that and be prepared then to consider the

11     matter more urgently.  But we are not wanting to press that matter upon

12     the Defence, and if you want to remain quiet and leave the matter as it

13     is, then these early witnesses will have to give their evidence in the

14     ordinary way, that is, orally; and we will deal with the 92 ter motion

15     after we have received the Defence's written response which must be filed

16     by the 2nd of February.  I think the position is clear, and I don't call

17     upon the Defence at this stage.

18                           [Trial Chamber confers]

19             JUDGE PARKER:  I mentioned that today a further motion was filed

20     pursuant to Rule 92 ter by the Prosecution in respect of one further

21     witness.  That will be dealt with in the ordinary course of the rules, on

22     its merits, once the Defence has had an opportunity to respond to that.

23             That brings me to the matter anticipated by your comment,

24     Mr. Stamp, the question of timing.  I've been a little uneasy when I look

25     at your 65 ter witness list and annex A that was filed on the 12th of

Page 140

 1     December and the timings that are set out there in respect of the

 2     evidence of each witness.

 3             For the most part, the timings given appear to be given on the

 4     basis that the witness would be called as a live witness, yet it's not

 5     been altogether clear that that is the case.  Many witnesses are listed

 6     as "live/Rule 92 ter" and one timing given.  There are two or three

 7     witnesses only that are listed as "live," and their timings are not out

 8     of the order for the timings of other witnesses.  And the total estimated

 9     length of the Prosecution's case in chief is then thought to be something

10     a little under 90 hours.

11             That left me, then, to think that the Prosecution case would be

12     very considerably shortened were its Rule 65 ter motion to be granted,

13     substantially or wholly because the Prosecution evidence in respect of,

14     now on that motion, some 60 witnesses would consist merely in calling the

15     witness and tendering a written statement, and the witness would then be

16     available for cross-examination.

17             Now, is my understanding correct, Mr. Stamp, that these times in

18     the 65 ter witness list were times contemplating the witness giving

19     evidence viva voce or not?

20             MR. STAMP:  These times were times contemplated for the witnesses

21     giving evidence viva voce and according to 92 ter, in accordance with

22     Rule 92 ter.  That's --

23             JUDGE PARKER:  Now, that's an inconsistent statement, with

24     respect.

25             MR. STAMP:  Some of the witnesses we propose to call and we

Page 141

 1     propose to tender the statements of these witnesses under Rule 92 ter as

 2     a part of their evidence in chief.  There is -- there will be other

 3     matters, matters, some of them clarifications and some of them questions

 4     probing areas that are more relevant in this case than they were in the

 5     previous case in which these witnesses testified, that we'll also be

 6     asking questions about.  And the times for these witnesses are based on

 7     that consideration, that we would --

 8             JUDGE PARKER:  Are you saying that you anticipated --

 9             MR. STAMP:  Yes.

10             JUDGE PARKER:  -- that the witness would give evidence pursuant

11     to Rule 92 ter --

12             MR. STAMP:  Indeed.

13             JUDGE PARKER:  -- in setting these times?

14             MR. STAMP:  Indeed, yes, Your Honour.

15             JUDGE PARKER:  But this list was filed well before you made any

16     Rule 92 ter motion.

17             MR. STAMP:  Before -- well before we made a 92 ter motion, we

18     were aware of which witnesses we were proposing or had intended to call

19     under 92 ter.  I think when we filed our 65 ter witness list, we -- and

20     that would be in September, the original 65 ter witness list, we did

21     indicate the mode of testimony in respect to these witnesses, and those

22     that were 92 ter, with just a few exceptions, were indicated then.

23             In other words, the designation of these witnesses to be 92 ter

24     witnesses, or their mode of testimony to be pursuant to 92 ter, is not

25     something that is new in terms of our own consideration.  We had from

Page 142

 1     early thought that these witnesses would be appropriate witnesses to --

 2     whose evidence could be -- could be received under that rule.

 3             JUDGE PARKER:  You see the obvious problem, Mr. Stamp.  You have

 4     estimated the length of time the Prosecution case will take, witness by

 5     witness; and yet until the matter was before the Chamber in December, no

 6     step was taken toward any Rule 92 ter motion.  So all these witnesses, if

 7     they were not Rule 92 bis or quater witnesses, would be giving their

 8     evidence orally.  What you're now suggesting is that even though no step

 9     had been taken to make use of Rule 92 ter, in your timing you had assumed

10     that the witness would be heard at least in part under Rule 92 ter.

11             MR. STAMP:  Yes, Your Honour.  That was the indication we made

12     when we filed the 65 ter summary; that the times for the witnesses that

13     were designated as Rule 92 ter would be -- were indicated for those

14     witnesses.  And when I say "the Rule 65 ter summary," I mean our

15     Rule 65 ter witness list that we were obliged to file in September last

16     year.

17             JUDGE PARKER:  Well, you appreciate that until and unless an

18     order is made by the Chamber allowing a use of Rule 92 ter, a witness's

19     evidence must be given orally.

20             MR. STAMP:  Indeed, Your Honour.  And I believe -- not "believe,"

21     I am sure that in the filing under Rule 65 ter in September, we indicated

22     that the estimates here were based on an -- based on an expectation or an

23     anticipation that the Rule 92 ter motions would be accepted by the Court.

24     And to the extent that they were not accepted, we would need to revise

25     the estimated time for the Prosecution case.

Page 143

 1             JUDGE PARKER:  You believe that was in your filing?

 2             MR. STAMP:  In the 65 ter filing of September.

 3             JUDGE PARKER:  I see.  Well, I'm afraid it hasn't come to my

 4     attention that that was there.

 5             MR. STAMP:  Yes.

 6             JUDGE PARKER:  But we are now in the position where the time

 7     estimate for the Prosecution case is now subject to a very big question

 8     mark.

 9             MR. STAMP:  Indeed, Your Honour.

10             JUDGE PARKER:  And it will depend very much upon the outcome of

11     the Rule 92 ter motion, as well as the Rule 92 ter bis and quater

12     motions, none of which are resolved --

13             MR. STAMP:  Indeed, Your Honour.

14             JUDGE PARKER:  -- just how long the Prosecution case will

15     actually take to lead its evidence in chief.

16             MR. STAMP:  If the motions are not resolved in our favour, is

17     that the question being asked?

18             JUDGE PARKER:  Yes.

19             MR. STAMP:  I would anticipate that we would need to add

20     approximately 80 percent of the time that we have indicated here.

21             May I just add that I have had the benefit of the use of modern

22     technology, and I'm now reminded that we were advised, or we were

23     instructed by the Pre-Trial Judge not to file a 92 ter motion until a

24     Bench, a Trial Bench, had been set up to hear the case.

25             JUDGE PARKER:  You will also appreciate, Mr. Stamp, that the use

Page 144

 1     of Rule 92 ter in practice has the effect that cross-examination needs to

 2     be longer than it would otherwise be.

 3             MR. STAMP:  Yes, Your Honour.

 4             JUDGE PARKER:  And you're now proposing over 60 witnesses, that

 5     is, over half of your witnesses, to be led under Rule 92 ter.  What is

 6     concerning the Chamber very much is that the estimates of the length of

 7     the trial appear now to be quite unreliable and that we must revise

 8     considerably the time that had been anticipated for the leading of

 9     evidence, and it must be anticipated with the extensive use of

10     Rule 92 ter that the total length of time to hear the evidence of the

11     Prosecution, including cross-examination and re-examination, is going to

12     be very considerably greater than the estimate that had been previously

13     given.

14             MR. STAMP:  Much as we indicated in the filing, and I'm sorry to

15     keep harping back to the filing under 65 ter in September, much really

16     depends on how the Court receives our application under Rule 92 ter and

17     92 bis.  We believe that to the extent that the Court accepts the

18     application, we can present the Prosecution's case in the time we have

19     allocated here.

20             However, I do accept that if you add the time that the Defence

21     may spend -- and that is something that is completely -- well, I would

22     not say completely out of our control, but that is something we even

23     purported to give an estimate to as to how much time the Defence would

24     spend with each witness, then for the case in total, the trial in total,

25     there would be a substantial increase in the time.

Page 145

 1             But I think we can only give a reasonable assessment or

 2     reasonable estimation of what the Prosecution's case in chief would be,

 3     and we believe that this assessment -- this estimation we can abide by,

 4     pending the decision in respect to Rules 92 ter, 92 quater, and 92 bis.

 5             JUDGE PARKER:  Well, we can't take this matter any further at the

 6     moment, Mr. Stamp, I don't believe, except to express our grave concern

 7     that the trial is likely to last a significant period of time longer than

 8     had been anticipated in the pre-trial proceedings.

 9             The Chamber will deal with the Prosecution motions under 92 bis,

10     ter, and quater, as promptly as it can.  It must, though, give due and

11     proper consideration to the concerns, if any, that are raised by the

12     Defence; and it will have to be looking at each proposed witness

13     individually in coming to a decision.  And your motions now under those

14     three rules affect something in the order of 100 witnesses, so that

15     there's quite a little task there.

16             MR. STAMP:  Yes, yes.

17             JUDGE PARKER:  And it's only after they're resolved that we'll be

18     able to get some more reliable indication of the anticipated length of

19     trial.  The Prosecution case is one issue.  Of course, the Defence must

20     also be given a proper and reasonable opportunity to question each

21     Prosecution witness.  That is an essential attribute of our procedure.

22     And for that reason, the Chamber must be prepared to allow reasonable and

23     proper time to the Defence for their cross-examination.

24             The Chamber will be watching time very closely, both the time the

25     Prosecution takes with the witness and the time the Defence takes.  But

Page 146

 1     we can't impose some artificial short time on the Defence simply, for

 2     example, because the Prosecution has been able to have the advantage of

 3     Rule 92 ter or Rule 92 quater; okay?

 4             MR. STAMP:  That is entirely understandable, Your Honours.  I

 5     think the length of Defence cross-examination, their right to

 6     cross-examine, is something entirely within the discretion of the

 7     Chamber, and we will abide by any ruling the Chamber makes in that

 8     regard.

 9             JUDGE PARKER:  Let it be very clear that this Chamber will be

10     careful to allow the Prosecution witnesses to be cross-examined by the

11     Defence to the extent that it is reasonable and proper.  If time, of

12     course, is being used unnecessarily, we will deal with that.  But the

13     total effect of all of this is the likelihood that the case will take

14     much longer than anticipated and that is a matter of disappointment and

15     concern at this time.

16             Thank you about that matter, then, Mr. Stamp.

17             Can I turn now to agreed facts.  Following the hearing on the

18     16th of December, the parties have filed a joint submission on agreed

19     facts and a list of agreed documents.  The Chamber is grateful for that

20     and that will enable a limited number of documents and a limited number

21     of factual issues to be dealt with without additional evidence being led

22     about them.

23             The joint submission was filed, I believe, on the 19th of

24     January.  The Chamber will request the Registry Officer to assign exhibit

25     numbers to each of the documents in annex A of the parties' joint

Page 147

 1     submission of the 19th of January, so that each of those documents that

 2     are agreed will now become exhibits.  And the document which is annex B

 3     of the joint submission of the parties of the 19th of January, that is,

 4     the list of agreed facts, will also be given a separate exhibit number so

 5     that there will be a ready basis of reference to that as there is need

 6     for that during the trial.

 7             Now, that will be a matter conveniently done by the Registry

 8     Officer after this Pre-Trial Conference is concluded and the

 9     Registry Officer can inform all parties and the Chamber of the exhibit

10     numbers when that process has been completed.

11             There was a question, Mr. Stamp?

12             MR. STAMP:  I don't know.  Perhaps you, Mr. President, were about

13     to move on to what I wanted to raise and that is the issue of the

14     numbering of the exhibits.  The Prosecution had asked that this matter be

15     placed on the agenda.  We seek to be able to consult with the

16     Registry Officer, of course in conjunction with the Defence, in respect

17     to the exhibit numbers.  For most of the agreed documents, which are

18     documents on the Prosecution's exhibit list, the Prosecution had given

19     them numbers and we would seek, if at all possible, and we think the

20     technology permits that, that they retain the same numbers.  And that is

21     because, Your Honours will no doubt be aware, that the Prosecution will

22     move in the course of the trial to use a tremendous amount of documents,

23     a huge amount of materials, statements and transcripts, from the

24     Milutinovic et al trial, and without a doubt the Defence, probably, will

25     be cross-examining witnesses and will make use of those transcripts.  And

Page 148

 1     the proposal of the Prosecution is that it would be much easier for

 2     purposes of cross-reference if the exhibit numbers remain the same.  And

 3     I say this primarily because of the huge mountain of documents that we

 4     are likely to have to deal with.

 5             If the exhibit numbers do not remain the same, then when a

 6     reference is made to an exhibit in this case, there will be much

 7     difficulty finding it in the other case.

 8             If, for example, the Defence seeks to cross-examine using a

 9     document from the previous trial, the Milutinovic et al trial, there will

10     be many references to exhibits in that case, and to find those exhibits,

11     to cross-reference those exhibits, will be much more difficult if they

12     had different numbers for this case.

13             So that is a request I make, and my understanding is that at

14     least where the technology is concerned, that it could be accommodated.

15     But it's a matter, really, up to the directions and instructions of the

16     Chamber.

17             JUDGE PARKER:  Mr. Djordjevic, does the Defence wish to put any

18     submission in respect of the proposal of the Prosecution, which is in

19     effect to use the exhibit numbering that was used in another trial, in

20     the Milutinovic trial?

21             MR. DJORDJEVIC: [Interpretation] As the Chamber is well aware,

22     the Defence has much less experience in terms of how to proceed when it

23     comes to issues that are primarily in the purview of the Registry, but

24     you may expect the Defence to be cooperative on all those issues.  That's

25     it.  Thank you.

Page 149

 1             JUDGE PARKER:  Thank you.

 2             Could I indicate, Mr. Stamp, that this proposal is one which

 3     gives rise to considerable concern.  This trial is a distinct and

 4     separate trial from any other that has been held.  If we were to use

 5     exhibit numbers that were used in another trial, it would mean that the

 6     record of this trial would become extremely confusing.

 7             It is possible with the technology to cross-reference with an

 8     exhibit in this trial with the exhibit number given in another.  But if

 9     you think about the course of evidence in this trial, a witness is called

10     and gives evidence and a number of documents or other exhibits are

11     tendered through that witness, the ordinary coherent record would give a

12     progressive number of -- would give progressively numbers of that

13     evidence.  And if one comes then to look at exhibits relating to that

14     witness, we would normally follow a coherent listing of numbers.  What

15     you propose would mean that we might have - I don't know the number of

16     exhibits in the Milutinovic trial, but I know it's in the thousands - we

17     might find that of those, only, say, 20 percent were used in this trial.

18     We might find we have Exhibits 10, 50, 483, 950, 1420, and the in-between

19     numbers were simply not used.  It would be completely strange as that

20     when one came to look at the record of this trial.

21             It would produce administratively a great deal of difficulty for

22     the Registry in the conduct of the -- in the keeping of the records of

23     this trial.

24             What is feasible, for example, would be to say, Exhibit 1 in this

25     trial, Exhibit 2, 3, in the ordinary way, but to include immediately in

Page 150

 1     the written identification of that exhibit a number, say an M number,

 2     which is the exhibit number given to that document or exhibit in the

 3     Milutinovic trial.  So Exhibit 1 in this trial might also be referenced

 4     as M2028.

 5             Now, we don't propose today to make a final order about that but

 6     to indicate that there is very considerable difficulty with what you

 7     propose.  We feel that it is going to be unlikely to be in the overall to

 8     the advantage to the conduct of this trial to follow what you propose,

 9     even though there could be some advantages when it comes to

10     cross-referencing.  We would ask you, therefore, to consider and to

11     discuss with Defence counsel the question of using cross-referenced

12     numbers while not disturbing the ordinary pattern of exhibit numbers in

13     this trial, and for you to consider and put to us whether you see any

14     particular difficulty with that.

15             We recognise that there are advantages to be had in enabling a

16     ready cross-reference between the documents in this trial and the

17     documents in the Milutinovic trial.  But we do not want to get into the

18     position of having effectively an incoherent record in this trial simply

19     because it makes it easier for counsel, as the case is progressing, to

20     use numbers from another trial.

21             Do you see the issue?

22             MR. STAMP:  Yes, I see the issue.

23             JUDGE PARKER:  And would you --

24             MR. STAMP:  Yes, I would have those discussions.

25             JUDGE PARKER:  Have the discussions and then raise it again.  We

Page 151

 1     may need to deal with it pretty early on because this could arise with

 2     the first witness even.  But for the moment, the Chamber is not in favour

 3     of the idea that it should use the numbers from another trial as its

 4     record in this trial of exhibits.

 5             MR. STAMP:  Yes.  I understand the position taken by the Court,

 6     or the suggestion, and I will consult as early as possible with my friend

 7     to try and find the best way we could recommend to the Court.

 8             May I just say, without belabouring the point, that it would make

 9     extraordinarily difficult reading if the transcripts from the Milutinovic

10     case were received in evidence here, and there are references to exhibits

11     in those cases.  When one is reading the transcript from that -- from

12     that case, it would be quite difficult what exhibits they're speaking

13     about as they relate to this case, unless they have the same numbers.

14     But I will follow the recommendation of the Court and see if --

15             JUDGE PARKER:  I think it's going to become very important to get

16     out from under the shadow of the Milutinovic trial.  We are conducting

17     this trial of this accused, and we want to do that in an efficient and

18     coherent way.  So that needs to be kept in mind.

19             MR. STAMP:  Very well.  As it pleases you, Mr. President.

20             JUDGE PARKER:  The disclosure under Rules 66 and 68, there were

21     still some 15 to 20 translations which were to be completed, it was

22     hoped, by mid-January, from what was said by Prosecution counsel at the

23     December hearing.  Now, have those translations been received and have

24     they been disclosed to the Defence, Mr. Stamp?

25             MR. STAMP:  We have received some of them, Mr. President, and all

Page 152

 1     those that have been received have been disclosed.  We have not received

 2     all of them yet.

 3             JUDGE PARKER:  Are you able to say how many?

 4             MR. STAMP:  I think less than -- I think less than 15.  As a

 5     matter of fact, I'm sure it's less than 15, but I could --

 6             JUDGE PARKER:  Well, it was only 15 to 20 in December, so I hope

 7     it's well less than 15 by now, Mr. Stamp.

 8             MR. STAMP:  I'm afraid, I must confess, I don't recall the

 9     precise number in December.  But I did make an inquiry, which has been

10     confirmed now, that the -- that we have disclosed what we have and those

11     were five.  We have disclosed five documents that were received back from

12     the CLSS section.  We did ask that these documents be done urgently and

13     be made available at the beginning of January, and they indicated that

14     they would make their best efforts to do so.  They have managed to get to

15     us five and --

16             JUDGE PARKER:  And when were they received?

17             MR. STAMP:  They were received in the course of this month, this

18     year, and disclosed immediately upon reception.

19             JUDGE PARKER:  Have you made inquiries about the balance?

20             MR. STAMP:  Indeed, Your Honour.  The CLSS is endeavouring to get

21     them to us as soon as they can, having regard to their responsibilities

22     in respect to other cases.  I'm sure Your Honours know, probably I don't

23     need to say this, that we have very little, if any, control over the

24     CLSS -- CLSS, and they are under huge stress having regard to the amount

25     of trials running at this particular point in time.  I do know that in

Page 153

 1     respect to the forthcoming witnesses, whatever were received have been

 2     disclosed.

 3             JUDGE PARKER:  Do we take it that none of these documents affect

 4     witnesses that are likely to be called in the next few weeks?

 5             MR. STAMP:  None of them.  I'm told that none of them will affect

 6     witnesses for approximately the next month.  But by the time that time

 7     runs, we expect that the CLSS section of the Tribunal will have provided

 8     us with the balance, with the remainder, of the documents.

 9             JUDGE PARKER:  The Chamber would be grateful, Mr. Stamp, if you

10     could renew the request to the translators for those documents to be

11     translated as quickly as possible.

12             MR. STAMP:  I will do my utmost in ensuring that that is done.

13             JUDGE PARKER:  Thank you very much, Mr. Stamp.

14             Now, there were six witnesses who were affected by delayed

15     disclosure orders.  Have the materials pertaining to those six witnesses

16     now been disclosed to the Defence?

17             MR. STAMP:  Yes, Your Honour, under the --

18             JUDGE PARKER:  They have?  Thank you.

19             MR. STAMP:  Thank you.

20             JUDGE PARKER:  Are there any other issues concerning disclosure

21     that you would want to raise, Mr. Stamp?

22             MR. STAMP:  May I have a moment?

23             JUDGE PARKER:  Yes.

24                           [Prosecution counsel confer]

25             MR. STAMP:  Your Honour, thank you.  There were some documents

Page 154

 1     from a Rule 70 provided that we could not disclose under the rules

 2     because we did not have clearance.  We have now obtained clearance, and

 3     they will be disclosed to the Defence as soon as possible.  That's the

 4     only thing I have to say in respect to disclosure, vis-a-vis disclosure

 5     under Rule 68.

 6             In respect to the six witnesses affected by disclosure orders, I

 7     should add that there is Witness K91 who -- who I don't think it came

 8     within the question you asked, but I am just adding that there is one

 9     witness for whom there has not been disclosure, and that is because the

10     order was that the material be disclosed 30 days from testimony.  But

11     Your Honours had asked about those that were to be disclosed 30 days

12     before the start of the trial, and all of those --

13             JUDGE PARKER:  And those you are not anticipating calling within

14     the next 30 days.

15             MR. STAMP:  No, Your Honour.  We will disclose according to the

16     order.

17             JUDGE PARKER:  Thank you for that, Mr. Stamp.

18             MR. STAMP:  Thank you, Your Honour.

19             JUDGE PARKER:  Mr. Djordjevic, is there any matter concerning

20     disclosure that the Defence would wish to raise?

21             MR. DJORDJEVIC: [Interpretation] Thank you, Your Honour.

22             Well, here goes.  We have made a note regarding this issue.  I

23     did it with the assistance of my team.  As regards the disclosure, I

24     would like to say very briefly when it comes to the disclosure related to

25     related cases, to this date the Defence has not received documents from

Page 155

 1     related cases whose disclosure was ordered by the Trial Chamber.

 2             First of all, we have yet to receive materials from the Haradinaj

 3     case and disclosure was approved and ordered on the 5th of March, 2008,

 4     almost a year ago.  We have yet to receive materials from the

 5     Milutinovic et al case.  Pursuant to the decision of the Trial Chamber of

 6     the 9th of September, 2008, regarding the materials from the 9th of July

 7     onwards.  I would like to make a brief note here, the testimony of

 8     General Dimitrijevic and all the final unredacted briefs, the closing

 9     arguments, the closing briefs of the Defence, so that would be all for

10     now.  I will keep an eye on that.  Thank you.

11             JUDGE PARKER:  Thank you.

12             Mr. Stamp, Haradinaj and Milutinovic documents, would you like to

13     indicate the position in respect of those?

14             MR. STAMP:  I don't want to appear as if I'm ducking,

15     Your Honour, but I do believe that the disclosure of those, according to

16     the court order, was supposed to be conducted by the Registry, and we

17     would not be responsible to -- my understanding is that that is for the

18     Registry to disclose.

19                           [Trial Chamber and registrar confer]

20             JUDGE PARKER:  Does that accord with your understanding,

21     Mr. Djordjevic, that that was to be provided by the Registry?

22             MR. DJORDJEVIC: [Interpretation] I apologise.  Yes, the Registry

23     was supposed to do that.  Let me clarify that, if that was not clear.  My

24     colleague Mr. Stamp is correct.

25             JUDGE PARKER:  I think that the spirit of cooperation between

Page 156

 1     counsel is already growing.  I have had a few brief words with the

 2     Registry Officer.  She will raise the matter and will be in touch with

 3     you, Mr. Djordjevic, as quickly as possible to let you know the position.

 4             Mr. Stamp, I believe I am keeping you busy, but we better get

 5     those sorted.  Expert reports, where are we with those with respect to

 6     disclosure?

 7             MR. STAMP:  I believe there have been -- they have all been

 8     disclosed.  I think that there was one outstanding translation in respect

 9     to the report of some supporting material for the report of Mr. Phil Coo.

10     But that matter might have been settled.  I'm afraid, Your Honour, I

11     don't have the response of that one, off the bat, as it were.  But I do

12     know that the materials in general had been disclosed, and they were

13     subject to various -- to motions by the -- by the Defence and responses

14     by the Prosecution.

15             JUDGE PARKER: [Microphone not activated]

16             THE INTERPRETER:  Microphone, please.

17             JUDGE PARKER:  This has come to my attention today, Mr. Stamp,

18     because there are motions affecting two expert witnesses, objections

19     raised by the Defence to the propriety of two proposed witnesses being

20     called as experts, and the problem is that the Chamber does not have the

21     reports of either of those experts and has no means of access to them at

22     the moment; so that we are not effectively able to deal with that

23     objection until they are obtained.  And that is in particular what led me

24     to raise with you the question of whether there had been disclosure of

25     the expert reports to date.

Page 157

 1             MR. STAMP:  All the reports, those two and the other five have

 2     been disclosed to the Defence, and I believe would have been part of a

 3     filing that would have -- that this Court would have been seized upon.

 4     But I could check and make sure that they're available to the Court.

 5             JUDGE PARKER:  I think you may find that neither of the expert

 6     reports that are subject to objection have been filed with the Chamber,

 7     and that needs to occur if we are to deal with the objections to those

 8     two persons being called as experts which are raised by the Defence.  You

 9     will attend to that?

10             MR. STAMP:  I will attend to that.

11             JUDGE PARKER:  Thank you.  We would be grateful.

12             MR. STAMP:  Thank you, Your Honour.

13             JUDGE PARKER:  Could I -- while we're on that theme, there are a

14     number of difficulties being experienced by the Chamber in respect of

15     your 92 ter motion, looking at it, because we are not able to locate on

16     e-court the statements of these proposed -- or a number of these proposed

17     witnesses.  The statements are not included in the 92 ter motion.  We

18     have, therefore, had to turn to e-court to try and identify the

19     statements of each witness, and quite a number of them still have not

20     been uploaded into e-court, it would appear.

21             MR. STAMP:  I was advised that this situation obtained last week,

22     early last week, and I did what was necessary, or what I thought was

23     necessary, to ensure that they were all uploaded, whatever was missing

24     was -- was supplied.  And I was told on Thursday of last week, I believe,

25     or maybe it was Wednesday, that they had all been uploaded.  The missing

Page 158

 1     few, or maybe more than a few, had been uploaded by Thursday or Wednesday

 2     of last week.  Again, I will have to check if that is not the case.

 3             JUDGE PARKER:  Thank you.  Could you please liaise with the legal

 4     officer of the Chamber, and if you believe all have been uploaded, you

 5     may be able to then assist in locating them.

 6             MR. STAMP:  Very well, Your Honour.

 7             JUDGE PARKER:  Thank you very much.

 8             There is the matter of the progress of the trial.  The immediate

 9     matter is that tomorrow morning at 9.00, the trial is listed to commence,

10     and there will be then an opening statement made by the Prosecution.

11             The Chamber would mention that the rules would allow for an

12     opening statement to be made by the accused to follow the opening

13     statement by the Prosecution.  While the rules allow that, we point out

14     that it is in no way obligatory for that to occur tomorrow, and it is a

15     practice followed in many trials for the accused to delay making an

16     opening statement by counsel until the commencement of the Defence case.

17     The option is there, and we point out that it is an option to be

18     considered by the Defence, and we just wanted to be clear that you are

19     not obliged to do so tomorrow.

20             MR. DJORDJEVIC:  We already considered all that, Your Honour.  I

21     will continue in B/C/S.

22             [Interpretation] Your Honour, the Defence has decided to present

23     its opening statement right at the beginning of the Defence case, so we

24     will not do that tomorrow.  However, the Defence would like to notify the

25     Prosecution and the Trial Chamber that our client, the accused

Page 159

 1     Djordjevic, would like to present a statement in accordance with Rule 84

 2     bis of the Rules of Procedure and Evidence.  I don't think that it will

 3     take more than 45 minutes to an hour.

 4             JUDGE PARKER:  I'm just a little unclear what you're intending to

 5     convey there, Mr. Djordjevic.  Are you saying that when the Defence case

 6     commences, your client proposes to make a statement, or are you saying

 7     that your client proposes to make a statement at the close of the

 8     Prosecution opening?

 9             MR. DJORDJEVIC: [Interpretation] Our client, in accordance with

10     the provisions of Rule 84 bis of the Rules of Procedure and Evidence of

11     this Tribunal, intends to present his statement tomorrow, after the

12     Prosecution has completed its opening statement.  The Defence will

13     present its opening statement at the beginning of its case.  Thank you.

14     I think that now I've made myself clear.

15             JUDGE PARKER:  Thank you.  You realise that it is a matter for

16     the Chamber, whether that may occur tomorrow, the opening statement by an

17     accused, and the statement also is under the control of the Chamber as to

18     time.  So an opening statement by an accused of some three quarters of an

19     hour is a most unusually long opening statement, so keep that in mind

20     overnight, if you would.

21             MR. DJORDJEVIC: [Interpretation] Thank you.

22             JUDGE PARKER:  Now, is there any other matter, Mr. Stamp, that

23     you would wish to raise before the commencement of the trial?

24             MR. STAMP:  No, Your Honour.

25             JUDGE PARKER:  Thank you.

Page 160

 1             MR. STAMP:  Thank you very much.

 2             JUDGE PARKER:  Mr. Djordjevic, is there any other matter that the

 3     Defence would wish to raise before the commencement of the trial.

 4             MR. DJORDJEVIC:  Thank you, Your Honour.

 5             [Interpretation] The first thing that the Defence would like to

 6     note, and we believe that it should be established now at the

 7     Pre-Trial Conference, is the 24-hour notice for cross-examination

 8     documents.

 9             Bearing in mind the practice before this Tribunal or

10     jurisprudence, let me refer to some cases -  Milutinovic, Perisic,

11     Popovic, Prlic, Gotovina, Lukic, Dragomir Milosevic, Haradinaj, Martic,

12     Naletilic and Martinovic, Blagojevic and Jokic, Halilovic - I believe

13     that in this case too there should be a clear agreement about the time,

14     the deadline, for the submission of documents to be used in the course of

15     cross-examination, and I think that a period of 24 hours is quite usual

16     and sufficient for all parties to the proceedings.

17             I have some other references about the relevant cases, but I

18     don't want to quote them now because I think what I've said is quite

19     sufficient.  Thank you.

20             JUDGE PARKER:  What you're really saying is that you felt that

21     48 hours was too long and you'd like that time reduced to 24?  Is that

22     the point you're making?

23             MR. DJORDJEVIC:  Defence would -- Defence would like to request

24     amendment of the order by the Trial Chamber in relation to the 24 hours'

25     notice for documents to be used in cross-examination.  That's what I

Page 161

 1     thought.  Almost all cases at this Tribunal have notice times for

 2     cross-exam documents and the oath of the witnesses thereafter.  Many by

 3     direction or only practice will allow these documents to be notified and

 4     released at the close of direct and at the start of cross-exam.  The

 5     cases that have followed a rule allowing cross documents notice after the

 6     oath are the cases as follows, I mentioned already.

 7             JUDGE PARKER:  Yes.

 8             MR. DJORDJEVIC:  So that's what I'm thinking about on that.

 9             JUDGE PARKER:  You realise, Mr. Djordjevic, that this was a

10     matter considered on the 16th of December.  We heard submissions at that

11     time.  The practice does vary from case to case, and it has in particular

12     been shorter in cases of multiple accused, where there are several

13     accused.  The practice is some trials is much longer than 48 hours.

14             Forty-eight hours has been used in a number of trials where there

15     is a single accused or just, say, two accused, and it has worked very

16     effectively.  It's a matter of balancing competing interests.  If the

17     time is kept too short, there is not time enough for the other party to

18     give consideration to re-examination in respect of the document; and we

19     lose time, then, because they are compelled to ask for an adjournment so

20     that they can consider the matter further.  It's a matter of balancing

21     fairness and convenience.

22             Now, the experience that I have had over some five years has been

23     that 48 hours for a trial in particular where there is only one accused

24     has worked very effectively, and once both parties get used to it, they

25     have been able to manage that, and it has proved practical and fair.

Page 162

 1             Can I suggest that we continue as ordered on the 16th with

 2     48 hours?  If the parties find that that is producing particular

 3     difficulty, raise the matter again, pointing out the difficulty that is

 4     being presented, and the Chamber can then see whether it should vary its

 5     order.  But our experience to date would suggest that 48 hours is

 6     practical and is fair and works in very many trials.

 7             MR. DJORDJEVIC: [Interpretation] Yes, I'll accept that,

 8     Your Honour.

 9             The second thing that I wanted to raise on behalf of the Defence

10     and to ask the Trial Chamber is this:  Bearing in mind the seriousness

11     and complexity of the trial, if at all possible, could we sit four days a

12     week, so that one day would be free for the Defence, and I assume the

13     other side, too, to consider what has taken place and to consider what

14     needs to be done in future, the writing of motions and regular

15     proceedings and jobs.  So that's what we'd like to raise now at this

16     Pre-Trial Conference, that we sit four days a week, if that is at all

17     possible.  Thank you.

18             JUDGE PARKER:  Mr. Stamp, have you any submission?

19             MR. STAMP:  That is a matter I leave in the hands of the Court

20     entirely.

21             JUDGE PARKER:  Thank you.

22                           [Trial Chamber confers]

23             JUDGE PARKER:  The Chamber, in dealing with this last submission,

24     Mr. Djordjevic, bears in mind that the normal is for a trial to be

25     conducted five days a week, and that is the normal procedure in this

Page 163

 1     Tribunal.  There are situations where that is not convenient and that

 2     depends upon each particular trial, counsel, and Judges.  The majority of

 3     trials do sit five days a week, and that has been the experience which I

 4     have generally followed in my time here.

 5             One glaring and obvious consequence of sitting only four days a

 6     week is that the trial takes longer by 20 percent if that is done, which

 7     means the accused has to spend that longer time uncertain as to the

 8     outcome; and it means then that the trials of other accused are delayed

 9     by that time.

10             Now, the Chamber does realise that in the course of any trial

11     there could well arise a situation where it's clear that because of

12     particular complexity or difficulty at a stage of the trial, that some

13     delay is necessary in the interests of justice.  And this Chamber would

14     always be open to that situation and providing for some shorter sitting

15     period if there is a particular difficulty.  There will also be occasions

16     when a witness may not be available or some other difficulty, so that we

17     won't be able to sit five days a week.

18             At the beginning of this trial because so many other trials are

19     sitting, we are only able in February to sit four days a week, although

20     that one week we sit three, another week we sit five days, and the other

21     two weeks we sit four days.  But that is likely to change during March

22     when we will -- we expect to be able to sit five days a week.

23             This is a trial of one accused, which means that for counsel, it

24     is less difficult than, for instance, if there were five or six accused

25     in the one case.  When those matters are weighed, it's the Chamber's view

Page 164

 1     that it is preferable on balance to sit for the normal sitting hours of

 2     five days a week as much as possible in the trial, and we would propose

 3     to follow that as the normal course.

 4             We expect that at some time or another that will not be possible

 5     and that it will be necessary to take an extra day or two off in the

 6     interests of justice to allow a more logical presentation of witnesses,

 7     to allow difficulties with witnesses to be overcome, to allow for health,

 8     to allow for pressures of particular issues in the trial.  But we would

 9     ask all counsel to recognise that it is in the interests of the accused

10     and in the interests of the efficient working of this Tribunal and the

11     interests of those accused whose trials are waiting to start, for us to

12     try and conclude this trial as quickly as fairness allows, and that's

13     what we would propose to do.

14             Is there any other matter, Mr. Djordjevic?

15             MR. DJORDJEVIC: [Interpretation] Judge, my associates drew my

16     attention to something and that is disclosure, so I'd like to go back to

17     that for just a moment and mention that part of the material is expected

18     from the Registry, whereas the other part of the material should be

19     disclosed through the Registry but from the Prosecution.  So this is what

20     I wanted to raise.

21             And with the Trial Chamber's permission, the accused would like

22     to address the Court, with your permission, and that would be all.  Thank

23     you.

24                           [Trial Chamber and registrar confer].

25             JUDGE PARKER:  With the first matter that you've raised,

Page 165

 1     Mr. Djordjevic, if there is some practical issue over some of the

 2     material to be disclosed, whether it is with the Registry or with the

 3     Prosecution, could I ask that you discuss that matter with Mr. Stamp, and

 4     I would hope by that means that that practical difficulty will be sorted

 5     out.

 6             The accused, you say, would like to say something to the Chamber.

 7     We certainly would allow that, but it must be recognised we are very

 8     close to the end of our present tape, so that I trust that what it is to

 9     be said is short.  Otherwise, we will need to adjourn for half an hour

10     and then return because the tape must be rewound.  So if there is some

11     short matter which the accused wishes to mention now, he certainly may do

12     so, turning on his microphone before he speaks.

13             THE ACCUSED: [Interpretation] Your Honours, I have a problem

14     linked to the use of the computer in the Detention Centre, the computer

15     assigned to me.  When they gave me a computer, they just allowed me the

16     possibility of using the CD audio-recordings there, the cassettes; but I

17     have over a hundred cassettes already, so that's a problem for me.

18             Now, my Defence, all the documents it uses, my Defence have

19     placed on a hard disk, and the only possibility for me to be of

20     assistance to the Defence, and thereby to help myself is, if possible,

21     that all the material on these external hard disks be introduced into the

22     computer as has been done for the other detainees in the Detention Unit.

23             I wrote to the administration of the Detention Unit about this,

24     and so has my Defence counsel, but I haven't received a positive answer

25     yet.  So I'd like to ask you if you could ask them to give me the same

Page 166

 1     rights that the other accused have had, and that they transfer to my

 2     computer all the material that I can use.  So that is the request that I

 3     have and it's a big one because it's a big problem for me.  Thank you.

 4             JUDGE PARKER:  Indeed, thank you for mentioning that matter,

 5     Mr. Djordjevic.  What will happen is that the Chamber will ask for this

 6     matter to be looked at and for it to receive a report.  You will

 7     appreciate we don't, at the moment, fully understand the extent of your

 8     difficulty or the reason for it or what options there are for dealing

 9     with it.  So we'll have that matter looked at and, if necessary, the

10     matter can be raised again before us, but I would expect that the matter

11     will receive practical attention in the near future.

12             Well, if there are no other matters that need to be mentioned at

13     this point, we would now propose to adjourn, with a view to the trial

14     commencing tomorrow morning at 9.00.  We would thank counsel for their

15     assistance today.  We now adjourn.

16                           --- Whereupon the Further Pre-Trial Conference

17                           adjourned at 5.22 p.m.