Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9336

 1                           Monday, 30 November 2009

 2                           [Pre-Defence Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 10.34 a.m.

 6             JUDGE PARKER:  Good morning.  We assemble this morning for a

 7     Pre-Defence Conference, with a view to commencing the Defence case this

 8     afternoon at 2.15.  The first matter that must be considered is whether

 9     there has now been, in sufficient compliance with Rule 65 ter, that is,

10     an indication of the position of the Defence and its intentions with

11     regard to evidence during the Defence case.  There was a filed

12     notification on the 16th of November, and, also, that dealt with a number

13     of witnesses and also a list of exhibits.  There has been no specific

14     objection raised by the Prosecution and no request for any further

15     information or particulars.

16             That remains the position, Mr. Stamp?

17             MR. STAMP:  Yes, Your Honours.  There had been an informal

18     discussion with the Defence for further and better particulars in respect

19     to some persons, and that was delivered to us.

20             JUDGE PARKER:  Very good.  Well, it seems as though the Defence

21     counsel have done a very good job; we thank you for that.  It's something

22     that will enable us to move on speedily.

23             In due course, as we get into the defence, we will look at the

24     length of the Defence case and the number of proposed witnesses.  But for

25     the moment, I think that can be allowed to remain while we start to get

Page 9337

 1     into the field of the Defence case.

 2             Now, the Defence Rule 65 notice indicated that there would be

 3     expert witnesses called.  It seems, from that notice, that there has been

 4     not yet disclosed to the Prosecution any details of the evidence of those

 5     three expert witnesses.  The Chamber needs to ensure that those reports

 6     are exchanged in good time to enable the case to proceed and to conclude

 7     readily.

 8             Could you indicate, Mr. Djordjevic, whether there is any plan

 9     that you have in mind as to the time when those reports will be

10     available?

11             MR. DJORDJEVIC: [Interpretation] We are waiting for two

12     translations to be completed, that's one thing.  Then we would need two

13     weeks to finalise all these reports and file them.  And I believe that

14     will fit within the schedule of our work, as we are three weeks before a

15     longer recess.  But in any case, we need two weeks to provide the details

16     concerning the evidence of these expert witnesses.

17             JUDGE PARKER:  So you're contemplating that those reports will be

18     provided before we have the Christmas break, in December; is that it?

19             MR. DJORDJEVIC: [Interpretation] That is the intention of the

20     Defence.  Two weeks is the time we would like to request for that

21     purpose.

22                           [Defence counsel confer]

23             MR. DJORDJEVIC: [Interpretation] My colleague, Mr. Djurdjic, who

24     is more involved in that issue, says that by the end of this session we

25     will be able to file two translations.  Just after the recess, we would

Page 9338

 1     provide further details.

 2             JUDGE PARKER:  So you would like, then, to have a date fixed

 3     which was in the middle of January rather than December?

 4             MR. DJORDJEVIC: [Interpretation] Correct, Your Honour.

 5                           [Trial Chamber confers]

 6             JUDGE PARKER:  The Chamber has in mind, Mr. Djordjevic,

 7     Monday, the 18th of January.  Would that be convenient?

 8             MR. DJORDJEVIC: [Interpretation] Certainly, Your Honour.  I would

 9     also like to inform the Trial Chamber that it is the intention of the

10     Defence that our expert witnesses give evidence at the end of our Defence

11     case, that is, after all the other evidence.  We want to put you on

12     notice.  But in any case, by 18th of January we would file all the

13     necessary details for each of the expert witnesses.

14             JUDGE PARKER:  18th of January, 2010, will then be the date for

15     the Defence to disclose the expert reports that it has in mind.

16             There should be no problem then, should there, Mr. Stamp, for the

17     Prosecution to be in a position to give notice under the Rules within the

18     month that follows that?

19             MR. STAMP:  No, Your Honours.  We can work within that

20     time-frame.

21             JUDGE PARKER:  Thank you.

22                           [Trial Chamber confers]

23             JUDGE PARKER:  Mr. Stamp, we would propose to fix

24     Monday, the 22nd of February, as the last day for the Prosecution's

25     response under Rule 94 bis to the Defence notice.  That would give you

Page 9339

 1     the 30 days and a couple more.

 2             MR. STAMP:  Thank you very much, Your Honours.

 3             JUDGE PARKER:  Thank you for that.

 4             Now I notice, Mr. Djordjevic, that you are contemplating motions

 5     under Rule 92 ter for the evidence of a number of your proposed witnesses

 6     to be given in chief in written form.  While that's indicated, as far as

 7     I know there's not yet been any motion.  What is planned there by the

 8     Defence?

 9             MR. DJORDJEVIC: [Interpretation] The Defence hopes that our

10     motion will be filed within a month, that is, in January.  It also

11     depends on the time that will be available to us during the recess break.

12     We believe that by the end of next month we will be able to file such a

13     motion under 92 bis, ter, and possibly quater.

14             JUDGE PARKER:  The end of next month is the end of January --

15             MR. DJORDJEVIC: [Interpretation] Correct, Your Honour.

16             JUDGE PARKER:  Ah, you're being cautious --

17             MR. DJORDJEVIC: [Interpretation] -- December --

18             JUDGE PARKER:  30th, okay.  So you're meaning the end of

19     December?

20             MR. DJORDJEVIC: [Interpretation] End of January, Your Honour.

21     I am, in my mind, already in December.  It would make no difference if it

22     were the end of December because we would be in the middle of the recess.

23             JUDGE PARKER:  Bearing in mind that you will have the last few

24     days of -- in December because we will not sit for the whole of the last

25     week, you will have that available, we would suggest

Page 9340

 1     Monday, the 4th of January, 2010, as the last day.  That would seem to

 2     meet your needs?

 3             MR. DJORDJEVIC: [Interpretation] Your Honour, I fully appreciate

 4     what you said, but I do have to draw your attention to the fact that in

 5     view of the holidays that we celebrate as Orthodox Christians, including

 6     our Christmas on the 7th of January, I would kindly ask you to put that

 7     dead-line after the 7th of January, otherwise we would not be able to

 8     fully comply.  That's the only reason.

 9             JUDGE PARKER:  We were wanting you to have entirely free

10     consciences by the time of your celebrations and have completed the work.

11     The reason, obviously, is that you must file your motion, the Prosecution

12     must have time to respond.  We will then have to look at the motion, and

13     you anticipate many witnesses, both 92 bis, ter, and quater.  And it's

14     not until the Chamber has decided that motion that it will be clear to

15     you which witnesses will need to be here at what times, because the

16     outcome of that motion will affect the times that your witnesses will

17     need to give evidence.  And if any are to give evidence under 92 bis, it

18     will affect whether they need to be here at all, unless we specifically

19     order cross-examination.

20             So it would seem that the last day of the 4th of January, giving

21     you plenty of time to be earlier if you wish, would be the most efficient

22     to enable us to give you decisions before the end of January.  I think if

23     it's left later than that, it will affect the conduct of your case and

24     the speed and efficiency with which we get through it.  So perhaps you

25     should work to yourselves getting the work done in 2009, that takes you

Page 9341

 1     to the end of 2009, and you can file the motions and then have a

 2     wonderful Christmas.

 3             MR. DJORDJEVIC: [Interpretation] All right, Your Honour.

 4     We accept.

 5             JUDGE PARKER:  Well, what we would propose then is to formally

 6     order the 4th of January, in the expectation that you may file earlier,

 7     and then, Mr. Stamp, that you would respond by the 15th of January.  They

 8     will be the orders.

 9             MR. STAMP:  Your Honours, I wonder if we could have the normal

10     14-day period to respond.  I think just at about that period --

11             JUDGE PARKER:  You'll be flying from Jamaica.

12             MR. STAMP: -- quite a few of the team will be returning just

13     then.

14             JUDGE PARKER:  You mean you would like until the 18th of January?

15             MR. STAMP:  The 18th of January would be more convenient to us.

16             JUDGE PARKER:  Well, it will be a big day, the 18th of January,

17     because that's when the Defence is filing its expert reports as well.

18     But --

19             MR. STAMP:  We respond --

20             JUDGE PARKER:  -- yes, Mr. Stamp, you can have until the 18th.

21             MR. STAMP:  Thank you, Your Honours, I'm much obliged.

22             JUDGE PARKER:  Mr. Djordjevic, we notice that there are 1.772

23     documents that you intend to offer as part of your case.  First, how are

24     you proceeding with translations of those documents?  Will they be ready?

25             MR. DJORDJEVIC: [Interpretation] Well, it is like this:  We have

Page 9342

 1     taken all the necessary steps to have all those documents that need to be

 2     translated translated in time.  In other words, I expect that we will be

 3     able, in any case, to get all those documents that we have submitted

 4     translated in time so that they can be used in the course of our case.

 5     We are aware of this obligation, and in any case we expect that in a few

 6     weeks and in keeping with the schedule that we have proposed and in view

 7     of the order of witnesses, that we will have all the translations as

 8     required.  That would be it in brief.

 9             JUDGE PARKER:  Does this mean that you will be expecting to get

10     translations as your case progresses?

11             MR. DJORDJEVIC: [Interpretation] We will begin with our case

12     obviously, and that's going to happen this afternoon.  So my reply -- my

13     answer would be yes.  But if we are to discuss any -- to mention any

14     dead-lines, let's say that would be by January 20th.  I don't want -- I

15     didn't want to say 18th because we didn't want all those things to happen

16     on the 18th.

17             JUDGE PARKER:  Well, if there is any difficulty with that very

18     large number of documents and ensuring that you have finalised

19     translations, it will be important to let the translation people know

20     which documents you need at the early stages of your case so that they

21     can give priority to the documents you will need with early witnesses.

22     We don't want to find that they have translated the documents for your

23     last witnesses but not the documents for the early witnesses.

24             And there's also the question that once the translations are

25     completed, the documents need to be uploaded into e-court, and that's a

Page 9343

 1     very large number of documents you have in mind.  So it will be important

 2     that you and your team get on to the exhibits as early as possible,

 3     ensure that the original and the translation are available, and have them

 4     provided to those who have to upload them into the e-court system.

 5             Can we leave that with you?

 6             MR. DJORDJEVIC: [Interpretation] Certainly, Your Honour.  My

 7     legal assistant, Ms. O'Leary, has just told me that all of the documents

 8     that need to be translated have already been submitted and the

 9     translation unit has already been advised of the order that they need to

10     be translated.  But, in any case, we expect that all of those materials

11     will be translated through the end of December.  But out of an abundance

12     of caution, we set the 20th January as the final dead-line when all of

13     these documents and their translations will be already -- will have been

14     uploaded in the e-court system.

15             JUDGE PARKER:  Thank you very much.

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

17     should we encounter any problems, we will do what we can do resolve them.

18     As you know, it is possible that some documents might be tardy even if --

19     the translations of them -- even if we submit them all on time.  But, in

20     any case, we will keep you informed, and we will try to be on track.

21     Thank you.

22             JUDGE PARKER:  We will hope that the word "tardy" never arises in

23     the course of the Defence case.

24             Now, I think it's important for the Chamber to remind both

25     parties of the procedural orders that will apply during the Defence case.

Page 9344

 1     What the Chamber has in mind is the same procedures that applied during

 2     the Prosecution case, only, of course, in reverse.  To that end, if I

 3     could just remind everybody of the essential orders:  The Defence is to

 4     disclose the witnesses that it intends to call two weeks before the

 5     commencement of the week in which a witness is to give evidence.  In

 6     other words, we look at witnesses essentially week by week with two

 7     weeks' notice to the Prosecution and to the Chamber of the witnesses to

 8     be called in any week.  That notice shall include an estimate of the time

 9     that the Defence anticipates will be needed, both for

10     examination-in-chief and cross-examination; in other words, what the

11     Chamber needs for its planning is to have an estimate of the length of

12     time the witness will be here giving evidence.

13             48 hours before a witness is called to give evidence, the Defence

14     shall give notice to the Prosecution and to the Registry Court Officer of

15     the documents which the Defence intends to use with that witness.  So 48

16     hours before a witness actually commences, both the Prosecution and the

17     Registry Officer should know of the documents that it is intended to use

18     by the Defence.  The Prosecution shall give notice of its intention to

19     use documents in cross-examination, first of all to the

20     Registry Court Officer, 48 hours before the evidence of that witness

21     commences; in other words, the same time as the Defence.

22             All documents intended to be used with expert witnesses will be

23     the subject of notice 48 hours in advance.  In the case of the

24     Prosecution, that will be 48 hours' notice to the Defence as well as the

25     Court.  For the Prosecution, all other documents will be subject of

Page 9345

 1     24-hours' advance notice to the Defence.  That is, 48-hours' notice to

 2     the Registry Court Officer for e-court purposes.  And 24-hours' notice,

 3     minimum, to the Defence for all documents of ordinary witnesses.  But in

 4     the case of expert witnesses, it's 48-hours' notice.

 5             Is that clear enough, Mr. Stamp?

 6             MR. STAMP:  Yes, Your Honours.  There seems to be one slight, and

 7     maybe I had it wrong, one slight difference between our obligations now

 8     and the Defence obligations when they were filing their notices.  I'm

 9     wondering if the Court Officer needs 48 hours for the ordinary witnesses,

10     or if the 24-hour notification could be sufficient for them.  I say so

11     because many times 48 hours before the witness is -- especially if

12     they're moving quickly, we might not have the notices ready 48 hours

13     before the ordinary crime based witness or a witness that we'd be going

14     through quickly.

15             JUDGE PARKER:  48 hours was the order when the Prosecution

16     case --

17             MR. STAMP:  Oh, I see --

18             JUDGE PARKER:  -- was proceeding --

19             MR. STAMP:  Very well.

20             JUDGE PARKER:  -- and the point is the Registry has to identify

21     the documents, get them all ready, so that when you call for them in the

22     middle of cross-examination, they can be brought up instantly.  If you're

23     down to 24 hours, with quite a number of documents happening in your case

24     and documents of some number being required in other cases, we can find

25     that there has not been sufficient time allowed for the uploading into

Page 9346

 1     e-court.

 2             MR. STAMP:  Very well.

 3             JUDGE PARKER:  So 48 hours it really needs to be, Mr. Stamp.

 4             MR. STAMP:  Very well, Your Honour.

 5             JUDGE PARKER:  The Chamber is aware now of three pending motions

 6     which it is dealing with.  This is the Prosecution's motion to re-open

 7     the case to admit exhibits from the bar table.  The Defence has filed its

 8     response to that motion, and a decision can be expected, I would think,

 9     in the course of this week.

10             The second motion is the Prosecution's motion to submit proof of

11     death charts that was filed on the 23rd of November.  The Defence is yet

12     to respond.  Its time for doing so will finish on the 7th of December.

13     There was received this morning a Defence motion to add documents to the

14     Rule 65 ter list.  There has been no time, of course, for the Prosecution

15     to consider that.  The Chamber would observe that it would be helpful if

16     it is able to respond to that in a much shorter time than usual because

17     it is useful for planning of witnesses to know whether documents are to

18     be available or not.  My quick look at the motion suggested that it would

19     not be very difficult for the Prosecution to respond in an earlier time.

20             We will not make a formal order in case there really is a

21     difficulty we have not foreseen, but we do encourage the Prosecution to

22     look, as soon as possible, at that new motion.

23             Is there any other matter that you feel you need to raise,

24     Mr. Djordjevic?

25             MR. DJORDJEVIC:  Yes, Your Honour.

Page 9347

 1             Regarding next witnesses, we would seek the Chamber's guidance as

 2     to what to file about notice today for the week of 14th December.  Given

 3     the large amount of time, we have noticed for this witnesses if we assume

 4     the same amount of time for cross and factor in some time for Chambers'

 5     questions, we see Mr. Djordjevic being on the stand for these two weeks'

 6     time.  We have noticed one more witness for the second week, but --

 7             JUDGE PARKER:  I'm not sure your client was terribly overjoyed to

 8     hear that, but we understand the estimate.

 9             MR. DJORDJEVIC:  Well --

10             JUDGE PARKER:  Yeah --

11             MR. DJORDJEVIC:  The facts is talking.

12             So we have noticed one more witness for the second week, but

13     we're not certain how many we should be making arrangements for in this

14     time, seeing as we don't want to have people to travel unnecessarily.

15             Therefore, we'd ask the Trial Chamber to provide guidance as to

16     how many witnesses it thinks would be appropriate to notice today or if

17     any more are required at all for notice before the break.

18             JUDGE PARKER:  Yes.  You may recall, Mr. Djordjevic, that we did

19     indicate that we would only sit at the beginning of that last week and

20     not through the whole week.  I think the best guidance we can

21     give - we're conscious of the problems of bringing witnesses, the time,

22     and the cost - and what we would suggest is that you should plan to fill

23     Monday, the 14th of December, but not plan for new witnesses after the

24     Monday.  If the witness called for Monday, the 14th, doesn't finish that

25     day, we will continue to sit to finish that witness.  But don't plan for

Page 9348

 1     additional witnesses beyond Monday, the 14th.

 2             Now, of course, a lot will depend on precisely how long it proves

 3     to be that your client will give evidence.  It -- it's just possible that

 4     he will be giving evidence on Monday, the 14th, still.  We're aware of

 5     that.  But if it looks as though he will finish during the preceding

 6     week, we'll then have one or two witnesses - as you judge - to finish by

 7     the end of Monday, the 14th of December.

 8             If your judgement is in error and the witness continues beyond

 9     that, the Chamber will hear the end of that witness.  But don't try to

10     bring fresh witnesses after that.  Avoid the cost and the time involved

11     in doing that.

12             Is that guidance enough for your purposes?

13             MR. DJORDJEVIC:  That's what I thought.  Thank you for that.

14             Now I would like to raise another issue.  We are not certain how

15     the Trial Chamber was planning to proceed, but the Defence would request

16     that the testimony of Mr. Vlastimir Djordjevic begin tomorrow morning

17     instead of today, immediately following opening statements.  There are

18     several reasons for this.

19             As you are well aware, there are many documents noticed on both

20     sides for the witness.  The Defence sent a list on Tuesday evening, but

21     it seems there was a court holiday on Friday.  The Defence received the

22     cross-examine document list only yesterday afternoon.  This does not

23     allow us ample time to review nor does it offer him the same conditions

24     as afforded other witnesses here who were allowed to know the documents

25     the other party would use in advance of testimony.

Page 9349

 1             As we cannot have full access to our client the way a party does

 2     with its other witnesses who are not in custody, we would ask that the

 3     conditions for him testifying be at least similar to those who have

 4     testified against him.

 5             Further, while we have taken a large amount of time to meet with

 6     our client that still remains, that once he begins testimony he will be

 7     uncounseled for an indefinite amount of time, possibly two weeks.

 8     Because today is a Monday, and we were not allowed to visit over the

 9     weekend as a counsel, we would like it if you permit him to start

10     tomorrow, as I said, to meet him in the jail, in the custody, from

11     6.00 to 8.00 p.m., to make sure all last matters are in order, including

12     next witnesses who may come after him this month.

13             Additionally, today is an afternoon sitting on a long day, going

14     into the morning sitting.  This is a tiring combination for all of us,

15     but we hate to put that strain on our client right away, considering that

16     he may be testifying for much longer than any other witnesses in this

17     trial.

18             At the beginning of this trial, the Prosecution started their

19     first witness the day following opening.  Arguments which were held on an

20     additionally separate day from the Pre-Trial Conference.  As

21     Mr. Djordjevic is present and involved in all, it is asking a lot of him

22     to start the same day as the Pre-Defence Conference and opening

23     statement.  In requesting this, we assure Your Honours that this will

24     have no significant bearing on the time and will actually serve to help

25     everything be more organised and run more smoothly.

Page 9350

 1             JUDGE PARKER:  Thank you, Mr. Djordjevic.

 2             MR. DJORDJEVIC:  Thank you.

 3             JUDGE PARKER:  Anything, Mr. Stamp?

 4             MR. STAMP:  Your Honours, I'm inclined to object to the

 5     application.  The Prosecution had put a lot of effort in getting along

 6     today, but I see the reasons given by counsel.  One of them I don't think

 7     has much merit, but there may be something to consider in the others.  So

 8     I will leave that one in the hands of the Chamber, but just to indicate

 9     that we are ready to proceed this afternoon.  Thank you.

10             JUDGE PARKER:  Thank you, Mr. Stamp.

11                           [Trial Chamber confers]

12             JUDGE PARKER:  Now, Mr. Djordjevic, your eloquence has been to

13     noticeable effect.  The Chamber agrees that your client should commence

14     his evidence tomorrow at 9.00.  We will sit at 2.15 this afternoon to

15     hear the opening address of counsel and then adjourn to resume tomorrow

16     at 9.00.

17             MR. DJORDJEVIC:  Thank you for your understanding, Your Honours.

18             JUDGE PARKER:  Is there any matter that you wish to raise at this

19     stage, Mr. Stamp?

20             MR. STAMP:  Yes, Your Honour.  I think counsel alluded to it just

21     now when he indicated what their position is in respect to their

22     consulting with the accused once he has proceeded to testify.  And I

23     would ask the Court if the Court could give us and give the Defence some

24     guidance, just for the record, as to the type and nature of contact they

25     should have with him once his testimony proceeds.  Although, I believe

Page 9351

 1     counsel has already indicated that it is limited, but I think for the

 2     record we should know where we stand on that.

 3             JUDGE PARKER:  Well, yes, Mr. Stamp.  I understood from the

 4     submissions of Mr. Djordjevic that the position was correctly and fully

 5     understood by the Defence.  But just so that it is clear, in the absence

 6     of any specific order by the Chamber, there would be no contact between

 7     counsel and the accused during the course of his evidence.  So once he

 8     commences evidence tomorrow morning, counsel will not speak to him until

 9     he has completed all stages of his evidence.  If there is some particular

10     difficulty or emergency, that must be raised with the Chamber for some

11     specific direction.  In the absence of that, what I've indicated is the

12     normal position which will apply.  And I'm sure that's what

13     Mr. Djordjevic had in mind from what he said.

14             If there is --

15             MR. STAMP:  And lastly, Your Honour, I think since we're all here

16     I should just state that in respect to the motion to amend the

17     65 ter list we have no objections to the request to amend the list,

18     without making any comments on the merits of the documents.  But insofar

19     as it seeks to amend the Defence 65 ter list to add 15, I think, proposed

20     exhibits, we do not object to that motion.  We had seen the motion, a

21     courtesy copy, earlier this morning, and there were some issues in

22     respect to one of the documents.  But I think we are in a position to

23     resolve that issue.

24             JUDGE PARKER:  Well, thank you for that.  And in light of that,

25     the Chamber would indicate now that, in the absence of any objection, it

Page 9352

 1     will grant the motion.  So the Rule 65 ter list of the Defence is now

 2     amended to add the documents proposed in the motion.  There will be no

 3     further written order by the Chamber.  Everything is complete.  You can

 4     proceed on that basis, Mr. Djordjevic.

 5             That being the case, we seem to have dealt with all matters that

 6     need to be dealt with now.  We will adjourn until 2.15 to commence the

 7     opening statement.  Thank you for your assistance.

 8                           --- Whereupon the hearing adjourned at 11.18 a.m.,

 9                           to be reconvened on Monday, the 30th day of

10                           November, 2009, at 2.15 p.m.