Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5652

1 Thursday, 24 May 2007

2 [Pre-Defence Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.17 p.m.

6 JUDGE ROBINSON: Please call the case.

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

8 number IT-98-29/1, the Prosecutor versus Dragomir Milosevic.

9 JUDGE ROBINSON: May we have the appearances, starting with the

10 Prosecution.

11 MR. WAESPI: Good afternoon, Mr. President, Your Honours. On the

12 Prosecution's side, Manoj Sachdeva, Carolyn Edgerton, John Docherty,

13 Jasmina Bosnjakovic, and myself, Stefan Waespi.

14 JUDGE ROBINSON: And for the Defence.

15 MR. TAPUSKOVIC: [Interpretation] Good afternoon, Your Honours.

16 The Defence is represented by Branislav Tapuskovic, with the co-counsel,

17 Mrs. Branislava Isailovic; and our case manager, Ms. Ruzica Jovanovic.

18 JUDGE ROBINSON: Thank you, Mr. Tapuskovic.

19 Today we have three sittings: The first is to be devoted to the

20 Pre-Trial Defence conference, the Pre-Defence conference; the second, the

21 opening address of the Defence case; and thirdly, we'll begin to hear

22 witnesses for the Defence.

23 So let us begin with the pre-Defence conference. I have a number

24 of issues to raise and in respect of which decisions will have to be

25 made. I begin first with the organisation of the trial. During the

Page 5653

1 Pre-Trial Conference, the Chamber determined that the parties are to

2 provide a list of witnesses every Thursday with the names of the

3 witnesses they expect to call the following week.

4 This order still stands for the Defence, and in addition the

5 Defence will follow the procedure pertaining to exhibits, as was set out

6 in the Chamber's decision of the 18th of January, 2007. And the Chamber

7 will, as usual, provide the parties with a notification of the times

8 available for examination-in-chief and cross-examination on a weekly

9 basis.

10 Now, the length of the Defence case. The Chamber has reviewed

11 the Defence 65 ter lists, and we notice that the Defence is asking to be

12 allowed to lead evidence from 63 witnesses in 171 and a half hours.

13 Mr. Tapuskovic, I'm not sure how you arrived at the half-hour,

14 but perhaps that was to impress us with the attention that you paid to

15 the detail in this matter. But all 63 witnesses are listed as viva voce

16 witnesses. No alternative means of presenting evidence has been

17 identified. The Chamber urges the Defence to consider the alternatives,

18 in particular, Rule 92 ter offers an effective means of leading evidence

19 and it also appears from the witness summaries that some of the testimony

20 may be presented pursuant to Rule 92 bis.

21 I must say that when we reviewed the witness list, we noticed

22 that in many topics there appeared to be a large degree of repetition.

23 For example, in relation to events preceding the armed conflict, there

24 are 30 witnesses who will testify about this topic, and we notice that

25 there was no indication of any specific period, you know. We also

Page 5654

1 noticed in relation to the start of the armed conflict, that 48 witnesses

2 are being asked to testify. And in relation to the formation of the SRK,

3 28 witnesses have been listed about the formation of the SRK and its

4 subordinate units. And of that number, 13 will testify about the

5 formation of the SRK proper.

6 So, Mr. Tapuskovic, I'm obliged to ask you, first let us take

7 events preceding the armed conflict, what is the explanation or

8 justification for 30 witnesses testifying on this topic?

9 MR. TAPUSKOVIC: [Interpretation] Your Honours, I'm truly in a

10 very delicate position, and since the President, Judge Robinson, has

11 asked me this question on behalf of the whole Bench, I have to say that

12 we were in a situation which was absolutely - and I have to use the

13 following word, although I don't like it very much - incapable of

14 preparing everything that was necessary within the period of 12 days.

15 In a sense, what His Honour Judge Robinson has said is true, that

16 we have put this forward as a foundation for the examination of

17 witnesses, and that it relates to the outbreak of the conflict itself.

18 However, the Defence team, even at this point in time is still

19 facing a serious dilemma whether to address the issue of the beginning of

20 the conflict. And until very last moment, we were considering whether to

21 address this issue, as compared to some other more important issues. But

22 we had to do it for abundance of caution.

23 At the moment, we are going to commence the defence case for

24 General Dragomir Milosevic, and I would take the liberty of saying that

25 we still absolutely have no idea about the volume of evidence in the

Page 5655

1 indictment presented by the Prosecution. I can say at the very outset

2 that this perhaps is not of much relevance for the Defence, and I'm

3 talking about the outbreak of the conflict as opposed to what we intend

4 to present through our case.

5 This was beyond our physical and every other human capacities to

6 make a decision within this time-frame how to lay the foundation for our

7 evidence, whether to attach more importance and attention to the period

8 in which events happened that General Milosevic is charged with, or

9 whether to devote our attention to the root causes of the conflict in

10 Bosnia-Herzegovina.

11 We did mention that, but our primary concern is to question the

12 witness about the -- the indictment period and the circumstances in which

13 these events took place. These witnesses and the documents pertaining to

14 them have been listed according to the regions that are of utmost

15 importance with relation to the indictment.

16 At one point, we even faced some insurmountable technical

17 problems; therefore, under the circumstances we did what we believe was

18 necessary to offer to the Chamber what we are going to offer and to

19 present the evidence to you.

20 Quite simply, I have nothing else to say other than this, because

21 it seems to me that we, as a Defence team, are going to present our case

22 relying on the period and the events that took place in that period. I

23 don't think this warrants any additional explanation, and I think this

24 will suffice in response to your question. It is up to you to determine

25 the framework of this questioning. We were very careful.

Page 5656

1 You asked me about this additional half an hour, I don't know who

2 has made this calculation. It wasn't me, definitely. I'm not very good

3 at arithmetics; however, I do acknowledge that you make note of that. We

4 talked with a large number of witnesses, Your Honours. I didn't have

5 time in these past three weeks to meet any of the witnesses literally due

6 to the obligations that I had to fulfil. I didn't meet any of the expert

7 witnesses. We had to do what we did in order to allow us to begin our

8 work today.

9 The only thing I can tell you is when we added these hours and

10 when we reviewed the number of witnesses, we already cut short our

11 presentation of evidence and made comparisons with the Prosecution case,

12 vis-a-vis the number of witnesses and the time spent.

13 I also have to tell you at the very outset that, speaking about

14 all other matters relating to witnesses, we could not have addressed them

15 in any different way, other than the one I already explained --

16 JUDGE ROBINSON: Mr. Tapuskovic --

17 MR. TAPUSKOVIC: [Interpretation] -- so this is what I can tell

18 you at this juncture.

19 JUDGE ROBINSON: Mr. Tapuskovic, in some other forum, perhaps a

20 parliamentary or some other political forum, your response might have

21 been adequate, perhaps even deemed excellent. But in -- in a court of

22 law in answer to a question that I asked, I don't believe you have

23 started to address the issue that I raised, you know. You have spoken

24 very generally, but you have not really provided any -- any specific

25 explanation.

Page 5657

1 You have 48 witnesses listed for the start of the armed conflict

2 and 28 witnesses listed for the formation of the SRK. Well, can we turn

3 to the -- to the formation of the SRK and its subordinate units? Why do

4 you need 28 witnesses on that issue? What is the -- what aspect of that

5 issue, of that question, is relevant to your case and to the extent -- to

6 the degree that it requires 28 witnesses?

7 MR. TAPUSKOVIC: [Interpretation] These 28 witnesses, Your Honour,

8 Judge Robinson, they do not only testify about that. I have to repeat

9 this to you once again. Well, quite simply, perhaps you may hold this

10 against me, but I have to tell you what it is that I think and what I

11 believe is of relevance to the Defence case of this accused person.

12 I can just say to you that these witnesses will deal with the

13 time involved and the circumstances under which these things happened,

14 the things referred to in the indictment and that pertain to

15 Dragomir Milosevic. I can just tell you one thing, that most probably we

16 would not have mentioned this at all, at least not to such a degree, in

17 the case of these statements, that's for sure, had we been certain that

18 we have to focus exclusively or predominantly -- predominantly, at any

19 rate, on that time.

20 I already told you that a few days ago when we were talking about

21 92 bis. The time when these things happened and what we have to deal

22 with and the circumstances involved. I have to say straight away that

23 each and every one of them will speak a lot more about the specific

24 locations at the time when all of this happened. A lot more than about

25 that first point in time.

Page 5658

1 I personally think that the historical, political, and strategic

2 circumstances involved are not of such relevance, are not of dominant

3 importance as far as the responsibility of Dragomir Milosevic is

4 concerned, in the spirit of what I told you about 90 bis -- no, sorry, 98

5 bis.

6 So that -- we say that they will deal with the creation of the

7 Sarajevo Romanija Corps, but I mean that will just be dealt with at a

8 minimal level. If we were to put them questions about all of that, then

9 I really couldn't deal with all the things that Dragomir Milosevic is

10 held accountable for here. If I were to deal with the circumstances, or

11 rather, the time of 1992, then certainly all of these 172 hours would be

12 used up by that.

13 Perhaps I can ask, by way of basic information, a few questions

14 in this relation, and that is why we said it. I'm speaking on behalf of

15 the Defence, the Defence of Dragomir Milosevic, that through every one of

16 these witnesses, we are going to deal with the basic question, and that

17 is what it looked like under the circumstances pertaining to what the

18 indictment states.

19 I'm trying to be clear. I understand your reprimand as well, I

20 understand your way of thinking, too, but in this situation under these

21 circumstances that we're in - and we said that as well -- however, that

22 is not dominant as far as these witnesses are concerned. We are

23 primarily talking about that time.

24 May I repeat once again we are talking about the circumstances

25 involved in that time that pertains to the responsibility of the accused,

Page 5659

1 Dragomir Milosevic.

2 This, just by way of information, by the way, if I can put it

3 that way, if these witnesses were in the area, then we're going to ask

4 them whether they know what it was that was going on there.

5 [Trial Chamber confers]

6 JUDGE ROBINSON: We'll give our decision now on the number of

7 witnesses that we'll allow and the time within which they may testify,

8 but before doing that I'd like to stress that even beyond that decision,

9 the Defence must bear in mind that a witness's evidence will only be

10 admitted if it is relevant, you know, and that the Chamber will not have

11 any patience with evidence that is cumulative, you know.

12 The Chamber sets the number of witnesses to be called by the

13 Defence at a maximum of 63, but we urge the Defence to reduce the number

14 of witnesses to be called. By bearing in mind the options open to the

15 Defence to lead witness evidence in written form, either through Rule 92

16 bis or ter, and the high degree of evidence that appears to be

17 cumulative, the Chamber determines that the Defence will present its

18 evidence within 145 hours. This is the time available for the full

19 examination of witnesses. Allowing some time for procedural matters and

20 possible unexpected delays, the Defence case will expected to be

21 concluded around the 24th of August.

22 I turn next to the question of expert witnesses. The Defence has

23 listed four experts in its witness list. It would be helpful if the

24 Defence were to provide these reports as early as possible to allow for

25 the 30-day time available to the Prosecution to respond.

Page 5660

1 Protective measures and videolinks. Do to the organisational

2 difficulties relating to videolinks, it would be helpful if the Defence

3 were to make its applications for videolinks in good time to allow for

4 preparation for testimony by this medium.

5 There's a matter that I wish to raise, Mr. Waespi. Mr. Waespi,

6 you'll remember the question of the Kenyan witness. What is the

7 latest -- oh, Mr. Docherty will reply.

8 MR. DOCHERTY: Mr. President, good afternoon. Good afternoon,

9 Your Honours.

10 The Prosecution has continued making efforts to locate the UNMO

11 who was serving with the Kenyan army, and according to Captain Hansen was

12 present at the PTT building parking lot on the 28th of June of 1995.

13 Those efforts have continued up until today. My understanding is that a

14 letter is going out today over the signature of the Prosecutor to the

15 Government of Kenya, reminding them of the importance that the ICTY

16 attaches to locating this officer.

17 There was a conversation between our investigator, Mr. Hogan, who

18 testified at the end of the trial, and the secretary to the charge

19 d'affaire at the Kenyan Embassy over the recent recess. This individual

20 informed Mr. Hogan that efforts by the civilian authorities in Kenya to

21 locate this officer were ongoing, but that at this point, the Kenyan

22 Ministry of Defence had no information about him, and then she added,

23 without being asked, that their state of knowledge was such that they

24 literally could not even inform us whether this individual was still

25 alive.

Page 5661

1 We are -- Mr. Hogan --

2 JUDGE ROBINSON: Are they able to say whether he's still in the

3 armed forces?

4 MR. DOCHERTY: They are able to say that he has definitely left

5 the armed forces. It would have been, of course, good if he was still in

6 the armed forces as then, I think, he could have been located relatively

7 quickly.

8 Mr. Hogan and other investigators are literally, Your Honour,

9 telephoning every Idriz in Kenya who has a telephone, and so far are not

10 finding either our Idriz or any knowledge of our Idriz. I will add that

11 Kenya has approximately 280.000 land-line telephones. The difficulty is

12 that mobile phones are extensively used, and there is no searchable

13 database of mobile phones because they are sold as pre-paid telephones

14 without a name attached to them.

15 I confess, Mr. President, that I am at a loss to know what

16 further efforts we can undertake. I would like -- we all would like very

17 much to locate this gentleman. I'm not sure what further -- there may be

18 a measure which we have simply not been ingenious enough to think of and

19 if someone wishes to propose that to us, we will -- we will certainly

20 undertake it.

21 I also note that in his most recent memorandum to the Chamber of

22 25th of April, my colleague Mr. Whiting indicated that we had located a

23 Polish officer on service in Afghanistan who had been at the PTT and TV

24 buildings on the day in question. We have disclosed to the Defence an

25 information report concerning an exchange of e-mails. We are happy to

Page 5662

1 provide that to the Chamber, if the Chamber thinks that appropriate. I,

2 frankly, would urge the Chamber to take a look at this. I do think that

3 it is relevant evidence. I don't want to prejudge its significance, but

4 that is one -- at least one source of additional information of the

5 events of that day.

6 Beyond that, Mr. President, I have nothing to offer but, of

7 course, will do my best to answer any questions the Chamber might have.

8 JUDGE ROBINSON: Thank you.

9 [Trial Chamber confers]

10 JUDGE ROBINSON: Mr. Docherty, two matters. First, the Chamber

11 would wish to see the exchange between the Polish officer and the other

12 party. Secondly, we would like to hear your views on the question of the

13 issue of a subpoena by the Chamber for Captain Idriz.

14 MR. DOCHERTY: Taking your first matter up first, Your Honour.

15 We will provide that -- we will file that with the Registrar at a break

16 today.

17 As to the second matter, I -- I don't see any harm in serving a

18 subpoena upon the Kenyan government. There will, of course, be the

19 practical matter of finding the person to whom it is addressed. I don't

20 know that it accomplishes anything more than reiterating to the

21 Government of Kenya that this is an important matter and they are hearing

22 it then not just from the OTP but also from the Court. But it still

23 leaves -- someone still has to find Captain Idriz and serve the subpoena

24 on him. We will, of course, keep looking. But until he is found, I

25 think a subpoena is useful in communicating a sense of urgency to the

Page 5663

1 Kenyan government.

2 [Trial Chamber confers]

3 JUDGE ROBINSON: Mr. Tapuskovic, what are your views on the issue

4 of a subpoena for Captain Idriz?

5 MR. TAPUSKOVIC: [Interpretation] Your Honours, our position is

6 that we are not against ensuring his presence here at all. We also care

7 about having him brought here and examined before you, and we certainly

8 support all efforts made to find him. We questioned a witness about that

9 and there is a document, and it would be very useful to hear anybody else

10 who can say something in relation to the document and the incident

11 involved that particular day. So, generally speaking, we are certainly

12 not opposed to having every possible attempt made to hear as much as

13 possible about that.

14 JUDGE ROBINSON: Thank you. Thank you.

15 Do you have any other matters to raise, Mr. Tapuskovic?

16 MR. TAPUSKOVIC: [Interpretation] Your Honours, at the end of the

17 Prosecution case, there was the question of some documents that should be

18 admitted into evidence as Defence exhibits. I would like to inform you

19 that according to your verbal instructions of the 2nd of May, 5585 is the

20 page number, line 10, we concluded our talks with the OTP, if I

21 understand things correctly, in view of D64 and 100 MFI. I asked to have

22 these documents marked for identification because at the moment when they

23 were used they had not been translated, although I did not state that

24 clearly although that had been my intention.

25 The Prosecution believed that these documents were marked for

Page 5664

1 identification for some other reason. At any rate, on the 17th of May,

2 if I'm not mistaken, we received a letter from the OTP in which they

3 kindly informed us that although they still believe that the reason for

4 having these documents marked for identification is not the fact that

5 they had not been translated, they are nevertheless not opposed to having

6 these documents admitted as Defence exhibits. So I kindly ask you to

7 rule on that.

8 Also, it is my duty to inform you that both of these documents,

9 as we wait for your decision, became part of our 65 ter list. So if you

10 decide on this favourably, this should be borne in mind, D64 MFI is our

11 65 ter number 121D and D100 MFI is our 65 ter number 76D.

12 Further on, in the meantime concerning five other documents of

13 the Defence that had not been translated at the moment when they were

14 used and therefore were marked for identification only, we received

15 translations of these documents and these documents are part of our 65

16 ter list. I'm referring to the following documents, so I would like to

17 ask you to rule on that as well: D34 MFI is now 65 ter number 46D; 94

18 MFI is now 73D; D107 is now 102D; D104 MFI is now 65 ter number 103 --

19 103D; D109 is now 98D, according to 65 ter.

20 We have sent these lists to the Trial Chamber and to the OTP

21 already, we sent them yesterday. So would you please decide on that.

22 There's another matter I wish to raise, of course always bearing

23 in mind that the trial has to be efficient and expeditious. I kindly ask

24 you to give some thought to the following:

25 Now when the witnesses are starting to arrive and we are going to

Page 5665

1 deal with them in accordance with the Rules, could some time be found for

2 full communication with the accused because indeed the two of us with two

3 assistants, we have to carry out this delicate and difficult duty. And

4 believe me, you have to understand me when I speak on behalf of the

5 entire team, in spite of all the efforts we are making so as to ensure

6 the expeditiousness of the trial, we still need a bit of time to consult

7 with the accused. This is indispensable so that the witnesses would

8 properly say what they know here, before you.

9 So please give this some thought. And could you please find a

10 solution that would not slow down the trial. Let it finish when it's

11 supposed to, and we will try and be as efficient and effective as

12 possible in our questioning the witnesses. Thank you.

13 JUDGE ROBINSON: Mr. Waespi or Mr. Docherty, anything on the

14 admission of those documents that have been marked for identification?

15 MR. WAESPI: Yes, Mr. President. In relation to the first two

16 ones D64 and D100 marked for identification, it's correct that we have

17 communicated to the Defence that we do have no objections. In relation

18 to the other, I think, five or six ones listed, if the only issue was

19 their, you know, pending translation, then we have no objection. Then I

20 believe, you know, Defence counsel, if he says that, this is the case.

21 So we do have no objections to these additional exhibits. I haven't seen

22 them yet, but again, if the only issue is pending translation, that's

23 fine.

24 [Trial Chamber confers]

25 JUDGE ROBINSON: Is the translation ready for the other four or

Page 5666

1 five?

2 MR. TAPUSKOVIC: [Interpretation] I assure you, according to the

3 information I have, I believe they've all been translated.

4 [Trial Chamber confers]

5 JUDGE ROBINSON: Both Mr. Tapuskovic and Mr. Waespi, our

6 information is that in relation to D64 and D100, the reason for their

7 nonadmission was that the Chamber was not satisfied that the witness was

8 able sufficiently to -- to relate to the evidence.

9 MR. WAESPI: Yes --

10 JUDGE ROBINSON: And that person, we believe, is

11 Komandant Prevljak who is being called as a witness. So why not just

12 wait until he's called as a witness and then deal with the admission at

13 that stage?

14 Mr. Tapuskovic.

15 MR. TAPUSKOVIC: [Interpretation] I agree.


17 [Trial Chamber confers]

18 JUDGE ROBINSON: Let me just say we'll do that, we'll wait until

19 the witness comes and then the admission will be dealt with when his

20 evidence is heard.

21 The other documents, since the translation is now available,

22 we'll admit them. And I'll ask the court deputy to give them numbers.

23 [Trial Chamber and registrar confer]

24 JUDGE ROBINSON: That will be done after the -- after the break.

25 Mr. Waespi, do you have any matters to raise?

Page 5667

1 MR. WAESPI: Yes, Mr. President, very shortly.

2 The first point goes back to what you said about the Defence

3 order of witnesses be available for the following week, on the Thursday.

4 If I understand you correctly, we should have now, today, the witness

5 list for the week after next week, meaning the week of the 4th of June to

6 the 8th of June. Is that correct?

7 Because otherwise, we have very, very limited time to prepare,

8 given the insufficiency of the 65 ter summaries, which is another issue.

9 I'll come to it in a moment.

10 I think the way it's been handled was, indeed, we were -- had to

11 give our witness list a little bit more than a week in advance, meaning,

12 I think, it usually it went out Thursday or at least Friday but for the

13 week after the following week.

14 [Trial Chamber and legal officer confer]

15 JUDGE ROBINSON: Mr. Waespi, I'm afraid you're not correct. I

16 actually quoted from the order that the Trial Chamber made, which is that

17 the parties are to provide a list of witnesses every Thursday with the

18 names of the witnesses they expect to call the following week, so that, I

19 think, this Thursday you would get a list of witnesses for next week,

20 starting Tuesday.

21 MR. WAESPI: Mr. President, that might have been the literal

22 ruling, but we certainly applied it in a different way. As I said

23 before, we always gave the Defence and, indeed, Your Honours a witness

24 list for the week after next week. It's literally impossible for us to

25 prepare cross-examination of these witnesses, given the fact we don't

Page 5668

1 have witness statements for most of them. And also in my view, we run

2 these witness names through our system, what we call ISU searches, to

3 generate material, also Rule 68 for the Defence. It's impossible for us

4 to do that for a witness who will testify on Monday, Tuesday.

5 So the practice has really been that the Defence had advance

6 notice of seven to ten days for each witness, and of course the Defence

7 knew for a year or even more about the names of the witnesses and,

8 indeed, had their witness statements. We don't have that. We have these

9 really meager 65 ter summaries. I can go to that in a moment, but I

10 think that will be a new practice, if only three or four days for the

11 length of notice for us would be given. That would be totally new, not

12 only in other cases but in our -- in our case. I think the parties can

13 confirm that we gave the list of witnesses always seven, eight, ten days

14 in advance and not just three days.

15 JUDGE ROBINSON: So you acted beyond what was really required?

16 MR. WAESPI: Maybe we interpreted the word "the following week"

17 in a different way than you had intended.

18 JUDGE ROBINSON: Mr. Tapuskovic.

19 MR. TAPUSKOVIC: [Interpretation] Your Honours, we will do our

20 utmost to try and meet these requirements the way they were put forth by

21 my learned friend Mr. Waespi. With some witnesses, there were problems

22 for -- not for the next week but the week after that; however, we can

23 forward the list of witnesses planned for that period, and we will try to

24 meet Mr. Waespi's requirement.

25 JUDGE ROBINSON: Can you confirm what Mr. Waespi said, that as a

Page 5669

1 matter of practice the Prosecution provided you with their list of

2 witnesses some ten days before testimony?

3 MR. TAPUSKOVIC: [Interpretation] I can confirm that things were

4 like that indeed; however, there were some schedule changes and other

5 changes within the overall framework. However, it is correct that the

6 Prosecutor went about this the way that was put forth by Mr. Waespi.

7 I have to underline another important issue. I don't want to

8 glorify or belittle anyone's position here, it is not my intention

9 whatsoever. However, I assure you that given the balance of resources,

10 we are somewhat at a loss. We will try to do our best, but there are

11 only two of us, whereas the Prosecutor has a team of seven or eight.

12 We will try to meet such requirements. We will forward lists as

13 possible -- as early as possible as of the moment when witnesses were

14 announced to the Victims and Witnesses Unit. There is no reason to hold

15 back any information. The moment we contact the Victims and Witnesses

16 Unit, we will contact the Prosecutor as well.

17 [Trial Chamber confers]

18 JUDGE ROBINSON: Well, our position on this issue is as follows:

19 The provision as I read it, of course, relates -- it's the basic

20 provision, but the Defence is expected to abide by the practice followed

21 by the Prosecutor, and indeed confirmed by the Defence, of providing the

22 witness list, the names of the witnesses, some ten days prior to

23 testimony. So let that practice prevail.

24 MR. WAESPI: Mr. President, just in addition to what we just

25 discussed, a transcript cite is -- is the following. It was discussed,

Page 5670

1 the same issue, during the pre-Prosecution case on the 10th of January,

2 2007, and Mr. Whiting said we will always provide the witnesses, you

3 know, ten days or two weeks in advance, and that's on page 253 and 254.

4 The second point I wanted to raise is what I mentioned a couple

5 of minutes ago, that's the insufficiency of the 65 ter summaries. If you

6 look at the witness who is starting to testify today, T62, what the

7 Defence did is a list of topics, a list of issues. It doesn't say what

8 the witness is going to talk about.

9 For instance, one of the issues is he's a close associate to the

10 accused, but we don't know what he's going to say. Is he going to say

11 that the accused wasn't in Sarajevo? That the accused had no notice of

12 what's happening? Will he testify about air-bombs, about crucial parts

13 of the Prosecution case? It's almost impossible to prepare.

14 I now instructed my case manager to have more than a hundred

15 documents lined up as a list to cross-examine this witness because he

16 could go on all issues relevant to the Prosecution case. We just don't

17 know.

18 And there are similar, as I'm sure you're aware, of issues in

19 relation to many of these witnesses. The first witness, T1, I won't

20 mention his name because he might be protected, he's a very high ABiH

21 commander at that time. It doesn't say what he's going to say. Is he

22 saying that the ABiH had air-bombs or that, you know, they were sniping

23 at their own people? I think there needs to be some more flesh on these

24 65 ter summaries mentioned, Mr. President, Your Honours.

25 I would like to mention again that we do not have witness

Page 5671

1 statements of these witnesses. There were a few witnesses who testified

2 in the Galic case and who gave witness statements to the Prosecution, but

3 that's the minority. So all we have to prepare for cross-examination are

4 these really meager 65 ter summaries, and I would urge, first turning to

5 the Defence if I may, to give us more information. We don't want to file

6 a motion, but I think it would be -- also for you, Mr. President,

7 important to see because you have to decide on the relevancy, on the

8 repetition of evidence, and that's very difficult based on these 65 ter

9 summaries. I've just given two examples, but as you know, there are

10 many, many more.

11 [Trial Chamber confers]

12 JUDGE ROBINSON: Mr. Tapuskovic, what do you have to say to the

13 submissions made by the Prosecutor?

14 MR. TAPUSKOVIC: [Interpretation] The difference, Your Honours,

15 between the Prosecution, who is trying to prove counts in the indictment

16 and the Defence case, that is also supposed to deal with counts in the

17 indictment, our duty is to point to the elements that witnesses need to

18 give evidence with relation to the indictment. It is not our duty to

19 provide statement, even if that had been possible, we, nevertheless,

20 didn't do that because this was not our obligation, unlike the

21 Prosecution, who are obliged to present them in that form.

22 I think that the following needs to be said as well. It was the

23 duty of the Prosecution to address and deal with the relevant paragraphs

24 in the indictment and what the Prosecution witnesses were saying about

25 that. As far as we are concerned, we can only deal with the elements in

Page 5672

1 the counts in the indictment. In my understanding, we were not bound to

2 present that in any great detail.

3 Speaking, for instance, about the first witness who is going to

4 appear today and be questioned today, we disclosed a huge number of

5 documents demonstrating the topics that he is going to testify about.

6 Probably the witnesses after him will not be presented with the same

7 number of document -- documents, but it is possible to see what they are

8 going to testify about.

9 So this is the Defence team's position, and I hope that you are

10 going to assess and estimate that in a proper manner. It was not our

11 duty to provide detailed statements about which each particular witness

12 is going to testify. We are just supposed to give a general framework of

13 what we are going to deal with.

14 JUDGE ROBINSON: Mr. Waespi, any reply?

15 MR. WAESPI: Yes. I agree that the Defence doesn't need to give

16 us witness statements, but what the Rule says, Rule 65 ter (G)(i)(b), a

17 summary of the facts on which each witnesses will testify, and a summary

18 is not an outline of topics but a summary is in summarised form what the

19 witness is going to say and that certainly, in our submission, requires

20 more as what the Defence has -- has given to us.

21 There are a couple of precedents, I think, in the Vukovar case,

22 Sljivancanin. The Trial Chamber ordered more information; for instance,

23 the -- you know, the dates of birth and so on, information we don't have

24 for much of our witnesses. But we are most interested in a summary of

25 the facts, as required by the Rules.

Page 5673

1 JUDGE ROBINSON: Yes, Mr. Tapuskovic.

2 MR. TAPUSKOVIC: [Interpretation] Your Honours, the only thing I

3 can add is the following: Concerning the summaries disclosed to us by

4 the Prosecution in addition to the statements and everything else that we

5 received, these summaries were not any more detailed, but they rather

6 provided just a framework within which a particular witness was going to

7 be examined. So we acted in the same manner, only we were not obliged to

8 provide witness statements. That is what I wanted to add.

9 [Trial Chamber confers]

10 JUDGE ROBINSON: The Chamber will give a ruling on this matter

11 within a few days.

12 Any other matter, Mr. Waespi?

13 MR. WAESPI: No, Mr. President.

14 JUDGE ROBINSON: Mr. Tapuskovic?

15 MR. TAPUSKOVIC: [Interpretation] Your Honours, I would only

16 kindly ask you, perhaps you have omitted to take notice of that, I have

17 proposed for you to deliver a ruling whether some time could be allocated

18 to us during the week for the consultations with the accused with

19 relation to our communications with the witnesses; in other words, that

20 would be one day off, because this is a practice pursued by other

21 Chambers as well as -- as far as I know. I'm not going to give you the

22 specific cases.

23 JUDGE ROBINSON: I'm not aware of this practice, that Chambers

24 allow a day off for consultation between Defence counsel and an accused.

25 That's -- it's new to me.

Page 5674

1 Mr. Waespi, do you know of this practice?

2 MR. WAESPI: Well, there have been cases which didn't run for

3 five days a week, on a continuous basis. When I look at our trial

4 schedule, indeed, I think there's not one day off between now -- between

5 next Tuesday and the end of July. And we understand and we appreciate

6 that the Defence consists only of two lawyers and they have to, I guess -

7 I don't know what's happening - but they have to proof their witnesses,

8 they have to organise the witnesses, which is, as we all know from our

9 side, a very, very difficult task and I understand what the Defence is

10 asking for. But of course, we have no position.

11 JUDGE ROBINSON: Ordinarily, the Defence is expected to consult

12 with the accused during the day and, I imagine, after -- after working

13 hours.

14 [Trial Chamber confers]

15 JUDGE ROBINSON: And of course, Mr. Tapuskovic, we sit from --

16 either from 9.00 to 1.45 or from 2.15 to 7.00, so there is the rest of

17 the day for your consultations, and this is every day. I'd be very

18 reluctant to establish such a practice.

19 I should also indicate that following the procedure that applied

20 during the Prosecution case, on some Fridays we will not sit. So please

21 bear that in mind. You will have some Fridays off. We haven't yet

22 designated them, but when we do so you'll be -- you'll be informed, you

23 know.

24 MR. TAPUSKOVIC: [Interpretation] Your Honour, I would just like

25 to bring your attention to the following fact: The witness will be

Page 5675

1 coming here, and it will be impossible to conduct the proofing within one

2 week for the following week if we don't have enough time in the proper

3 sense of that word. Both of us have to be in court all the time, and I

4 cannot find a replacement for my colleague who has to be always with me

5 or I always have to be next to her. Quite simply, it is physically

6 impossible to achieve this. This is the point. I would just like to

7 draw the Chamber's attention to this, but of course --

8 JUDGE ROBINSON: Mr. Tapuskovic --

9 MR. TAPUSKOVIC: [Interpretation] -- if you think that --

10 JUDGE ROBINSON: Mr. Tapuskovic, isn't that the case that all

11 Defence counsel find themselves? I mean, what is so exceptional about

12 your position?

13 MR. TAPUSKOVIC: [Interpretation] In some of the cases there is a

14 large -- larger number of Defence counsel; for example, in the Prlic case

15 and the Popovic case. I doubt that this is any exceptional situation. I

16 appeal to you and I think that since Mr. Milosevic is 65 years old, one

17 should -- has to bear that in mind. This should be taken into account as

18 well. In addition to the reasons for my insisting on them, he is

19 entitled, I think, to the time apart from working with us during a day.

20 So we would appreciate if we can have one day allocated to us, and we

21 would use it properly. I believe that this should be taken into

22 consideration. He is still a person who, in the eyes of the law, is

23 still innocent and he should be able to be given opportunity to have time

24 to work on the preparation of his defence case.

25 JUDGE ROBINSON: Mr. Tapuskovic, I'm afraid I'm not in a position

Page 5676

1 to accede to your request. You have to utilise the time that is

2 available to you, and I want to stress again that there are some Fridays

3 which -- on which we will not work, and you do have the rest of the day

4 in which you are not appearing in court.

5 Let us see how things develop. If you find yourself in an

6 absolutely impossible position in the middle of next term, then you can

7 raise the matter again.

8 Is there any matter that the accused --

9 Mr. Milosevic, is there any matter that you would wish to raise,

10 any issue concerning your health or your detention?

11 THE ACCUSED: [Interpretation] Your Honours, I'm glad and thankful

12 that you asked me that. This is probably an opportunity after four

13 months for me to say something for the first time, and I would like to

14 say something about what you asked me, and that is my health condition.

15 I wouldn't like to emphasise that because there are no particular

16 problems in that area. Every person has to struggle and cope with their

17 own health condition and adjust their duties and obligations accordingly.

18 Concerning the situation in the Detention Unit, I have no

19 particular things to add or to inform you. Everything is going on as

20 usual. But if you allow me, I would like to raise another issue. I

21 don't know if it has to deal with technical or administrative matters.

22 So let me tell you what this is about.

23 I come to the court 1 hour and 45 minutes ahead of the schedule

24 beginning. I am sometimes down there in the basement, sometimes in this

25 cell nearby. It seems to me that this is much too early for me to arrive

Page 5677

1 and to keep a person locked in a cell. I can't believe that this cannot

2 be organised in a better way, including the transportation.

3 Sometimes it happens that after the session is over at 11.00 or

4 at any other time, which means not until the end of the usual business

5 hours, but nevertheless I have to sit around here and wait for the

6 official end of the session. If this is not a very serious matter, I

7 wouldn't like to add anything else.

8 Now, to some other issues. I'm not sure if I'm going to be very

9 precise about this, but I would like to say that my encounters and

10 contacts and consultations with Mr. Tapuskovic and with his team over the

11 past four months took place, I'm not sure, four or five times. That

12 means that the Defence counsel actually didn't have time to meet with me,

13 and it made me make a conclusion that things are progressing as they

14 should be, but on the other hand, I have a feeling that I don't have

15 enough input and personal contribution and no influence on the course and

16 the scheduling of the trial, which is vitally important.

17 What I wanted to say to you is that I need to have more influence

18 on certain matters instead of being given little pieces of papers with

19 messages on it and then giving it back to the Defence counsel, which is

20 very difficult later on to fit in with this very expeditious and rapid

21 proceedings.

22 I have ceased all contacts with people who were involved in

23 everything that was happening. It was in 1995. I'm not in contacts with

24 such people who would be of vital importance for my defence, and

25 therefore I'm skeptical as regards the possibility of saying what is a

Page 5678

1 fact, what is true, and what I believe is the truth. I think that we

2 will not be able, therefore, to hear it before the Tribunal, before this

3 Trial Chamber.

4 So I've been trying, on my own part, to get some more time, if

5 possible, with my lawyers so that they have more time to exchange views

6 with me and to look at documents, because many of the documents are far

7 clearer to me than they seem to be here, as I realised eventually.

8 Along with all of this that is happening - I hope I'm not taking

9 too much time - may I say that my family also comes to see me, so I have

10 contacts with them. And then when one takes that into account as well,

11 then in a way I'm prevented from taking part in what is the most

12 important thing of all to me.

13 Thank you very much for giving me this time, and please

14 understand me the way I put this. Please don't understand me in any

15 other way. I hope you will not take me wrongly. Thank you. I really

16 have nothing else to add to this.

17 JUDGE ROBINSON: Thank you, Mr. Milosevic. You may sit.

18 There are three matters that you raised. The first one concerns

19 the time of your arrival at the Tribunal and the time when you leave.

20 That, of course, is a matter for the -- for the Registrar, and I will

21 bring it to his attention and make the representations that you -- that

22 you have made today, you know.

23 As for the time that you need to have with your lawyers, I can

24 only suggest that a greater effort be made by your lawyers to meet with

25 you, to communicate with you, so that you can inform them about -- about

Page 5679

1 the case, you know. We all have to struggle with time problems, but

2 counsel must endeavour to meet with his client, you know. The Chamber is

3 not in a position to grant a day off for this purpose. Trial Chambers

4 here do not do that, and you have to find time within the time that is

5 generally available for these meetings, you know.

6 [Trial Chamber confers]

7 JUDGE ROBINSON: The pre-Defence conference has ended, and we'll

8 adjourn. We'll resume at 4.00 to hear the opening statement.

9 --- Whereupon the Pre-Defence Conference

10 adjourned at 3.41 p.m.