Tribunal Criminal Tribunal for the Former Yugoslavia

Page 131

1 Monday, 10 July 2000

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 4.03 p.m.

5 [The accused entered court]

6 JUDGE RODRIGUES: [Interpretation] You may be seated, General.

7 Good afternoon. Good afternoon, ladies and gentlemen. I believe

8 we have already worked in the same composition, and I gather that the

9 appearances are the same.

10 Good afternoon to the counsel of the Prosecution; good afternoon,

11 counsel for Defence.

12 Madam Registrar, could you please call the case.

13 THE REGISTRAR: The case number IT-98-29-PT, the Prosecutor versus

14 Stanislav Galic.

15 JUDGE RODRIGUES: [Interpretation] Who is representing the

16 Prosecution today?

17 MR. TERRIER: [Interpretation] Good afternoon, Mr. President; good

18 afternoon, Your Honours. We are representing the Prosecution in the

19 following composition: Mr. Michael Blaxill, Ms. Sureta Chana, and myself,

20 Franck Terrier.

21 JUDGE RODRIGUES: [Interpretation] Thank you very much.

22 Could the Defence counsel please introduce himself.

23 MR. KOSTIC: Attorney Nikola Kostic appearing with General Galic.

24 JUDGE RODRIGUES: [Interpretation] Very well, then. Pursuant to

25 the scheduling order of the 4th of July, 2000, we are going to have a

Page 132

1 Status Conference which will be followed by a motion hearing on the motion

2 for provisional release submitted by General Galic. That is why

3 Judge Riad and Judge Wald are present here with myself, who is acting as a

4 Pre-Trial Judge on this Status Conference.

5 We will proceed with the Status Conference first. The scheduling

6 order contains the agenda for the present Status Conference, and the first

7 point to be discussed today is the disclosure of materials pursuant to

8 Rule 66(A)(ii) of the Rules of Procedure and Evidence, and Rule 68.

9 Could the Prosecutor now tell us how we stand on this particular

10 issue?

11 MR. TERRIER: [Interpretation] Mr. President, Mr. Michael Blaxill

12 will inform you on this issue.

13 JUDGE RODRIGUES: [Interpretation] Very well, then. Mr. Michael

14 Blaxill, you have the floor. Let us hear you.

15 MR. BLAXILL: Mr. President, Your Honours, good afternoon.

16 Indeed, the first two items of your agenda are items which I am

17 specifically assigned to address. In the first case, the disclosure of

18 materials in respect of Rule 66(A)(ii), the disclosure to date has been

19 two substantial shipments encompassing virtually all the witness

20 statements in the possession of the Prosecutor, a list of witnesses -- I

21 say a list, a number of witnesses which essentially goes beyond those even

22 that we hope or propose to call in the final analysis. However, we have

23 endeavoured to discover as widely as possible.

24 That has included, where we have possessed -- have them in our

25 possession, prior statements by any of those witnesses, and at this time

Page 133

1 excludes, I think, only certain witnesses where the provisions of Rule 70

2 currently apply and in respect of which we are seeking the appropriate

3 release. That is anticipated to be obtained in the not too distance

4 future, but I cannot put a firm or fixed date on it, but a matter of a

5 very few weeks, I think, to clear that issue. I think that relates to

6 probably no more than four or five statements we currently hold and would

7 propose disclosing.

8 As regards the compliance at this stage, therefore, with witness

9 statements, we hope we have substantially complied, but there has been one

10 logistical problem, and that is that on the last occasion, two boxes of

11 disclosure, including some of those statements I've referred to, they were

12 sent on the 9th of June this year by a firm called OPL Courier Service.

13 Regrettably, of those two boxes dispatched on the 9th of June, one box was

14 received by Mr. Kostic on the 12th, and we understand the other has gone

15 missing. A proper check has been undertaken, and, in fact, we have a

16 report dated this day indicating that so far, that box is deemed to have

17 gone astray.

18 In order not to delay matters further, as it is nearly a month now

19 that this thing has gone astray, we can, I understand, recreate the

20 contents of that box and redispatch within the next seven day, seven

21 working days.

22 So that is, in so sense, a novus actus interveniens. We couldn't

23 anticipate such a loss. We can endeavour to remedy it within, as I say,

24 the next week to week and a half, including delivery time.

25 With regard to compliance with Rule 68, that has run essentially

Page 134

1 hand and glove, and any materials that we do so identify will be disclosed

2 to the Defence; and we will do so on the basis of the fact that this is,

3 of course, an ongoing obligation of the Prosecution and which will

4 basically not come to an end throughout the proceedings, so that at any

5 given time, we will obviously have endeavoured to serve all and any

6 Rule 68 material. But one can never be certain that further

7 investigations, even in other cases, may produce something which, as I

8 say, would be served in accordance with the ongoing obligation.

9 That is all I would propose to mention to Your Honours at this

10 stage in relation to item 1. Unless you have any specific question on

11 that, I could, with your leave, move to item number 2 and the other

12 pre-trial preparations and filings.

13 JUDGE RODRIGUES: [Interpretation] Mr. Blaxill, I prefer that we

14 deal with each issue in turn, and let us give the Defence the opportunity

15 to respond.

16 I don't know whether Mr. Kostic has any comments to make in

17 response to what the Prosecutor has just stated. It is quite regrettable

18 that a box of documents would have gone missing.

19 Mr. Kostic indicated that he would prefer that the documents be

20 sent by mail.

21 MR. KOSTIC: Your Honour, Mr. Blaxill is correct. We did receive

22 one shipment and did not receive the other shipment, and we are trying

23 from our side to trace the documents. There is a procedure that's used.

24 Whether we'll be successful on our end, I don't know. We will try.

25 I have not received any documents which have specifically been

Page 135

1 identified as Rule 68 disclosures. I'm assuming that if such documents

2 exist and the Prosecution feels that they are exculpatory in nature, that

3 they might earmark them, and that would certainly be helpful.

4 So that is as much as I can tell you, Your Honour, at this point,

5 on number 1 of the order.

6 JUDGE RODRIGUES: [Interpretation] Thank you very much. Let us

7 move on to item number 2, progress towards completing -- actually,

8 progress in agreeing on undisputed matters of law and fact pursuant to

9 Rule 65 ter, (E)(ii) and (iii).

10 I am aware of the quantity of the documents which have already

11 been disclosed to the Defence and that the Defence has to analyse.

12 However, I hope that both parties have begun their co-operation amongst

13 themselves since the last Status Conference.

14 If you remember, I suggested that a meeting should take place

15 between the two parties before the Prosecutor goes to the United States.

16 I should like to know at this point whether the parties have had a chance

17 to meet in the meantime.

18 Mr. Blaxill, could you tell us anything about that?

19 MR. BLAXILL: Yes, Your Honour. Your Honours, we have not had an

20 opportunity to spend any meaningful length of time with Mr. Kostic. That

21 is clearly just -- it seems a logistics problem at this time. He was able

22 to meet with us fairly briefly, and we discussed the question after the

23 last Status Conference, and indeed we submitted initially a -- let us say

24 a taster of a set of facts, at least, that we might ask him to consider so

25 that we would get some flavour of how we would be presenting some facts to

Page 136

1 him and maybe the kind of responses, so we would then know whether we

2 could go down the path and how far down the path.

3 We, I expect, will get a response on that, having the opportunity

4 perhaps to speak to Mr. Kostic a little later. I'm not aware of how long

5 he's going to be in The Hague on this particular visit, but clearly if he

6 is here and he is available, we would be very happy to meet with him and

7 discuss these issues, and maybe even follow one particular course which I

8 understand others have found meaningful, which is to sit down and go

9 through the indictment, as it were, word by word and see where we are ad

10 idem and can agree facts or agree issues and where we cannot, which would

11 then certainly help to streamline the evidence, I think.

12 So that is the present position regarding that. We have not made

13 progress in that sense in a practical way, I'm afraid, but we certainly --

14 as I say, I think the goodwill is there on both sides to do so, and we are

15 very happy to accommodate Mr. Kostic whenever he's available. He, after

16 all, is one man, and we are a greater number, so I'm sure we can make the

17 effort to accommodate him more easily.

18 Having said that, Your Honours, you've also referred to the other

19 matters, a pre-trial brief being the first that is listed here. The very

20 first draft of that has been completed and is in our hands, so we are now

21 going to be working with that brief alongside the preparation of the

22 evidence so that the two marry up together and hopefully produce the

23 suitably meaningful document that you will be looking for.

24 As to a list of witnesses, essentially that is a matter that we

25 can prepare within the next two -- sorry. Am I going too fast?

Page 137

1 JUDGE RODRIGUES: [Interpretation] I apologise. We will deal with

2 this issue in somewhat greater detail later on. I should perhaps first

3 hear the Defence concerning this first meeting that took place.

4 Mr. Kostic, you have the floor.

5 MR. KOSTIC: Your Honour, we had a meeting after the last Status

6 Conference. I think that was a positive meeting because I think that both

7 Mr. Terrier and Mr. Blaxill and Ms. Chana and I discussed -- I think it

8 was more of conceptually to discuss how perhaps we can accomplish this,

9 and I think some progress was made. I also received a draft from them,

10 albeit it was a short draft, of some ideas and facts which is helpful to

11 me, and I think we can make some progress. I will be back next week and

12 we can do that.

13 The only thing that I think might have made it a little difficult

14 from looking at the draft that they had is that when I looked at some of

15 the suggestions, I did not discover the items in my discovery yet. In

16 other words, I hadn't received those documents yet. So it's very

17 difficult for me to make that determination without actually seeing the

18 documents, but I think we'll keep trying, Your Honour.

19 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Kostic.

20 Mr. Blaxill, as regards the pre-trial brief, I think that during

21 the last Status Conference I suggested that the pre-trial brief should be

22 the result of previous negotiations between the parties. So, therefore,

23 it will be submitted at the end of the pre-trial phase. I hope that I was

24 clear enough. If you read the Rules, you see that we have to have the

25 brief at that time. The way we read the Rules is that the pre-trial brief

Page 138

1 constitutes the results and the fruit of the negotiations and meetings

2 between the parties and, therefore, it can be submitted at the end of the

3 pre-trial phase. I think that in that respect, you will have certain

4 comments to make, but let me propose the date of the 26th of October.

5 That date is contained in our scheduling order.

6 So today, 10th of July, was initially the date that was fixed for

7 a pre-trial Status Conference. You probably remember that. There were

8 several dates for Pre-Trial Conferences, and today this was supposed to be

9 the end of the pre-trial phase, and it seems we are now only at the

10 beginning of the pre-trial phase. I should like to hear you on this

11 issue, Mr. Blaxill. So as regards to the submission of the pre-trial

12 brief, how do you link it with the proposed date, that is, with the date

13 of the 26th of October, which is supposed to mark the end of the pre-trial

14 phase?

15 MR. BLAXILL: Well, I think, Mr. President, the fact is that what

16 we have at this present time is essentially, let us say, a sterile version

17 in that issues of fact and law and so forth are basically there as a

18 skeleton to which we can work, and the idea is indeed that from now

19 forward, we can keep this document in mind as the sort of crucial document

20 of the dossier and it will thus be amended and tailored, if I may use that

21 expression, as we go along and in the light of any negotiations and

22 results of agreements or disagreements that we register with our learned

23 friend Mr. Kostic. So that indeed the 26th of October, hopefully that

24 will indeed be the date when that brief will have been concluded as a

25 result of the work we can undertake hopefully in this early part of the

Page 139

1 summer prior to and even during the court recess in August so that we

2 could have all these issues firmly settled and prepared for.

3 So it is not a document that it purports in any way to be ready

4 now. It is our working tool for the future work that is scheduled to be

5 done.

6 JUDGE RODRIGUES: [Interpretation] Mr. Kostic, Mr. Blaxill has

7 mentioned a skeleton of the pre-trial brief, which has to be submitted

8 prior to the 26th of October. What do you think of that?

9 MR. KOSTIC: I certainly have no problem with the dates. I have

10 no problem with Mr. Blaxill's methods, and I'm sure that a lot of work

11 will go into it. I'm not on the Prosecution's side, of course, so I have

12 to be careful how I comment on that pre-trial brief, but I do assume,

13 Judge, that there are some very, very serious and complicated issues, and

14 perhaps it's good that the work will go on until the 26th of October.

15 JUDGE RODRIGUES: [Interpretation] Thank you very much.

16 The next item is the list of witnesses that the Prosecutor intends

17 to call, the list which is provided for in Rule 65 ter (E)(iv). During

18 the Status Conference of the 11th of April, the Prosecutor indicated its

19 intention to call 140 -- 180 witnesses. In the scheduling order, we

20 ordered the Prosecutor to endeavour not to call more than two witnesses on

21 the same fact. Furthermore, in accordance with the scheduling order of

22 the 4th of July, that list of witnesses has to be submitted on the 26th of

23 October at the latest.

24 Let me explain things a little further. During the last Status

25 Conference, we invited the Prosecutor to distinguish between important and

Page 140

1 less important witnesses. In other cases conducted before this Tribunal,

2 we have cases of the Prosecutor calling several witnesses on one and the

3 same facts, sometimes even up to 15.

4 When the Prosecutor says that he can contact the Defence and

5 analyse the indictments, I think that they should also try to find

6 undisputed matters of law and fact while doing so.

7 As regards any potential disagreement, of course we have a number

8 of facts that need to be established. In relation to those facts, I

9 invite the Prosecutor not to call more than two witnesses. It is quite

10 possible for the Prosecution and for the Defence to have a list of

11 witnesses who can be called later on if you don't think that two witnesses

12 will not be enough to prove what you want to prove. You will always have

13 a list of witnesses that can be called later on.

14 We have to proceed in an efficient way. I don't know what the

15 reaction of the Prosecutor will be to this suggestion of the Chamber,

16 expressed by the Pre-Trial Judge in this case. We all know the existence

17 of this restriction in our respective national systems. I also think that

18 there is a kind of psychological effect involved in this problem. If you

19 call five witnesses at the beginning to prove certain facts, then it is

20 very difficult later on to cut down the number of witnesses. However, if

21 you decide to call only two witnesses to testify on the same fact and if

22 later on you realise that there is still need for a third witness, I think

23 that this is easier for all of us to proceed in that manner.

24 Can I please hear you on this issue?

25 MR. TERRIER: [Interpretation] Mr. President, I will perhaps jump

Page 141

1 the order of the agenda and move on to item 8, that is, the issue of

2 deposition and witnesses called pursuant to Rule 71 bis of the Rules of

3 Procedure and Evidence.

4 In the case we are dealing with today, unlike another case in

5 which I am appearing, which the Tribunal is familiar, we are in the

6 position to prove a certain precise number of facts which are enumerated

7 in the indictment, that is, the issue of snipers and the issue of

8 shelling.

9 Today, we envisage to call 180 witnesses indeed. However, it is

10 evident that if the Defence, during the summer break, that is, until

11 September, it is possible that there is an incident which is mentioned in

12 the indictment, and it is possible that such an attack is not conducted

13 against a specific target, and we will have definitely more than one

14 witness to establish these facts. If the position of the Defence was

15 different, if the Defence affirms that the shelling is not an act

16 committed by the members of the Romanija Corps, we will call two or three

17 more witnesses to prove what we want to prove, that is, that the said

18 units were under the control of the accused.

19 Secondly, we are now doing the selection of our witnesses. We

20 have witnesses which can testify in accordance with Article 84 bis of the

21 Rule, that is, by affidavit, then we have witnesses that have to be called

22 before a full Chamber of this Tribunal, and also witnesses who will

23 testify pursuant to Rule 71 of the Rules of Procedure and Evidence.

24 As regards witnesses -- as regards, I'm sorry, item number 7 of

25 the agenda, that is the affidavits, there will be no special difficulties

Page 142

1 in this case to collect affidavits because we have witnesses who live in

2 Sarajevo who do not feel threatened in any way, and I don't think that

3 there are any reasons for these witnesses to be threatened. So they will

4 provide their assistance, and we can count on the full co-operation of the

5 relevant authorities in Sarajevo.

6 So we will be in the position to collect these affidavits and

7 provide them as corroboration of evidence given by other witnesses, those

8 who will be called to testify before the Tribunal, before the Chamber

9 sitting in full composition or before a presiding officer.

10 So we are making a distinction between these witness. So some of

11 the witnesses will be testifying in a direct manner against the accused.

12 They will be the so-called fact witnesses. There will also be witnesses

13 who will try to establish the responsibility of the accused in relation to

14 those facts. I think that such witnesses will have to be called to

15 testify before the Chamber so that the Chamber can be in a better position

16 to establish the responsibility of the accused.

17 So this concerns the procedure pursuant to Rule 71, and we suggest

18 that this procedure be used by the Chamber.

19 In our work, we are well aware of the concerns of the Tribunal,

20 and we are trying to reduce the time of hearing which will be necessary

21 for this case. So this is one of the main concerns of the Prosecution,

22 and I am convinced that in that perspective, although this may not always

23 be the case, that with Mr. Kostic we will have a most fruitful

24 co-operation.

25 JUDGE RODRIGUES: [Interpretation] Very well. Thank you very much,

Page 143

1 Mr. Terrier.

2 Mr. Kostic, we're talking about Prosecution witnesses. Perhaps

3 that is not the moment for you to comment, but you could perhaps tell us,

4 how do you intend to prepare your defence? And regarding Rule 94 ter, the

5 affidavit witnesses under the conditions mentioned by Mr. Terrier, and

6 there is another point under item 8 of the agenda, that is, Rule 71.

7 Mr. Terrier made a distinction about calling witnesses before the Trial

8 Chamber of Judges and other witnesses who might be called to testify

9 before Presiding Officers.

10 What are your views on this, Mr. Kostic?

11 MR. KOSTIC: I'm going to attempt not to conjecture too much,

12 because I don't know what the strategy of the Prosecution is, other than

13 very generally from the indictment.

14 I can foresee, once witnesses are identified and we have an idea

15 as to what they may wish to state to the Chamber, we may be able to do

16 some depositions. It's a technique that we're very familiar with, and I

17 generally don't have a problem with that, Your Honour. I'm a little more

18 concerned about the affidavit form of testimony. That to me is a little

19 more bothersome, but I think if the witnesses are identified, we can

20 evaluate that procedure. My only concern on the deposition cases is I can

21 tell you, and again I'm conjecturing, please excuse me because I haven't

22 maybe fully thought it through, is the issue of the fact that of course,

23 the accused has a right to be present at proceedings of the Chamber, and

24 that is just one issue that concerns me. I think we can treat that as we

25 get along in this case, but so you know ahead of time, that is just one of

Page 144

1 my concerns. Because as you know oftentimes, a deposition will take place

2 at some other location and that, of course, creates logistical problems

3 because General Galic is here and will be here unless you change that

4 situation.

5 JUDGE RODRIGUES: [Interpretation] For the moment, another point

6 under point 2 is the list of exhibits which the Defence wishes to

7 produce.

8 I think mention is made of exhibits which the Defence must notify

9 as to whether they contest their authenticity or not. Regarding that

10 point, Mr. Blaxill, your comments.

11 MR. BLAXILL: Yes, Your Honours. As regards the exhibits, at this

12 point in time, a substantial number of documentary exhibits have already

13 been identified and selected. A number of them do, in fact, attract at

14 this time a Rule 70 provision and, therefore, we are making an

15 application. Mostly it is a United Nations documentation. We don't

16 understand there to be a problem over this or any resistance to the

17 release from Rule 70. Simply we must comply with a request procedure

18 which may take two or three weeks to result, and then they would be duly

19 disclosed.

20 The exhibits will be thus put together and listed. Therefore, I

21 anticipate and we anticipate this will be done in short order during the

22 summer and there will be plenty of time for consultation again with my

23 friend Mr. Kostic so that we can see what can be agreed, whether the

24 authenticity of documents can be agreed, and where indeed we may have a

25 problem and need, say, to call a witness to prove them. That being said,

Page 145

1 I anticipate both with the list of witnesses and exhibits, these are

2 documents which again are going to be kind of working documents up to the

3 final date in October when, hopefully, some will be on or off that list

4 depending on what we need to prove and in what ways we can save time at

5 the end of the day for the actual trial.

6 So I think that's all I propose to say in relation to the exhibits

7 issue at this time, Your Honours.

8 There is only one other point which kind of really is an

9 overriding situation and applies to all matters of disclosure and in a

10 sense preparation, and that is this, that particularly with regard to our

11 Rule 68 obligation, we undertake a complete and detailed computer search

12 of the data banks and the evidence banks of the Tribunal, Office of the

13 Prosecutor.

14 At this point in time, the computer evidence section have told us

15 that they will be performing a search on 1.5 million documents. They use

16 several -- tens if not hundreds of key words to multiply the approaches of

17 the search in an endeavour to ensure, we hope, within the bounds of

18 technology, every relevant reference that can be gained from the archives

19 of the evidence unit.

20 Now, the simple fact of that is that we were advised they hope to

21 commence this in respect of three large trials, this being one of them,

22 and to run this work from July with a projected conclusion date of

23 November, the end of November. However, I understand there was a software

24 delay and the task will begin in August.

25 Now, the reality there is of course we are in the hands of what is

Page 146

1 going to be a large resource working very hard, flat out, to produce the

2 documentation, to cross refer every reference and see that the evidence be

3 fully checked in our archives.

4 Now, that being said, of course, we cannot make promises that we

5 cannot keep. Therefore, it may be that some documents will obviously

6 emerge in the course of this, will need to be served, and things will need

7 to be adjusted. I am, however, advised that we will be getting virtually

8 a weekly submission of computer hits and documents. So what it really

9 means is that we do not wait until November and then face some awesome

10 task of checking documentation. We basically will have a weekly update.

11 So that by the time this finishes, even if the process is going beyond our

12 trial-ready date in October, it would be in respect of, I trust, a small

13 amount of adjustment between them and the trial. I thought I should

14 mention that.

15 Of course there is the issue of any reciprocal disclosure that may

16 be required by the Defence, where again searches would have to be run to

17 assist and co-ordinate that. That is a matter which, in a sense, rests

18 with my learned friend, Mr. Kostic, and what decisions he makes. But, of

19 course, there may be some issues where we would wish to exercise any

20 reciprocal rights in respect to documents in his possession.

21 I hope, Your Honour, that covers any concerns you have regarding,

22 as it were, the documentary preparation at this time.

23 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Blaxill. I would have

24 at least three points to take up.

25 You mentioned the list of exhibits, and we quite agree with you,

Page 147

1 that depends on what you intend to prove. But in relation to this list of

2 exhibits, did you bear in mind a recommendation that we made before to

3 prepare in advance a list of exhibits so that it should be ready for

4 discussion, so as to save time here in the courtroom?

5 I see Mr. Terrier saying yes but I should like to hear from you.

6 I've seen, I haven't heard, your reaction.

7 MR. BLAXILL: It is in the affirmative, Your Honours, yes. The

8 whole purpose, I think, is that whatever we are preparing at this stage,

9 we are doing it in the broadest terms so that we can work towards a

10 streamlined product as we deal with our learned friend, Mr. Kostic. As

11 the issues become clear, we can sweep some things off, put other things

12 on, and then make sure that at the end, hopefully we have the efficient

13 kind of documents that we're looking for in due time for the dates in

14 October. That is the purpose. So the answer, sir, is yes.

15 JUDGE RODRIGUES: [Interpretation] Another point is that the

16 Chamber really doesn't expect miracles from you. We know that the

17 Prosecutor has many powers, but I still think that you are not endowed

18 with the power of making miracles. So we're counting on your human

19 abilities, and it is quite logical to say that as you go along, as you

20 have at your disposal these documents, you will communicate them to

21 Mr. Kostic, knowing that Mr. Kostic will probably be inclined to do

22 exactly the same thing in a spirit of reciprocity.

23 I now turn to Mr. Kostic to see whether he has any responses,

24 comments, or suggestions to make.

25 MR. KOSTIC: I think in this regard, Your Honour, I really don't

Page 148

1 have a comment. I think I've listened to Mr. Blaxill carefully, and he

2 seems to be confident that he can do what he said he will try to do, and

3 that's all I can -- I can agree with him.

4 JUDGE RODRIGUES: [Interpretation] Another point. We have already

5 spoken about affidavits, deposition testimony by Presiding Officers.

6 The next point is the third on the agenda, that is, the

7 possibility of reducing the number of issues in dispute through judicial

8 notice, pursuant to Rule 94 of the Rules of Procedure and Evidence.

9 If I may -- because, after all, it is up to the parties to

10 construct their case -- I would like you to mention a few names to see, by

11 association, what is your reaction. I'm referring, for instance, to

12 Tadic, Celebici, and if we're talking about the Rule 61 hearings of

13 Karadzic and Mladic. What would be your reactions? It's an extensive

14 project, Mr. Blaxill.

15 MR. BLAXILL: Yes, indeed, Your Honours, and we do have the human

16 frailties that you've rightly attributed to us.

17 That is, in many ways, I think, along the lines that we have been

18 thinking. We have not had the time or opportunity, really, to address it

19 as a practical project to put together. But, yes, we were proposing, in

20 essence, by using the jurisprudence of the Tribunal and the judgements of

21 the cases to date, in a sense to go from appellate judgements, where we

22 feel that they, by their very nature, are the highest judgements of the

23 Tribunal, and therefore judicial notice or, indeed, adjudicated fact

24 issues may well be put forward that way.

25 Of course, then the various judgements in the cases Your Honours

Page 149

1 have referred to of completed trials where there are judgements at first

2 instance, again to see where certain facts or issues can be at least

3 suggested with some confidence as being something Your Honours may take

4 judicial notice of, or again try and argue them to be adjudicated fact for

5 the purposes of the given proceedings.

6 Then finally, I suppose, to look with some care, obviously, at

7 issues that are currently under appeal from certain opinions at first

8 instance, because clearly it may be we may not have such confident ground

9 to move forward if it is still disputed before the Appellate Chamber.

10 But I'm certainly thinking along those very lines, Your Honours,

11 that from the judgements of the very Tribunal, I think we have a primary

12 source for hopefully getting some judicial notice issues to place before

13 you.

14 I think, then, our secondary approach may be even more an

15 historical one, where hopefully certain issues relating to the Balkan

16 conflict itself, certain sort of dates or times or places, things of

17 common knowledge, as it were, from the public domain might also be added

18 to that.

19 So we basically take a jurisprudential basis from the Tribunal and

20 add, perhaps, the popular understanding of the conflict to amplify those

21 facts. That would be, I think, a way forward we would be looking to try

22 and address the issue of judicial notice.

23 JUDGE RODRIGUES: [Interpretation] Yes. Thank you, Mr. Blaxill.

24 Mr. Kostic, one perhaps could go a little further already than

25 mere conjecture. What are your ideas regarding these questions that have

Page 150

1 been raised and the ideas that Mr. Blaxill has just presented?

2 MR. KOSTIC: I'm normally a little reluctant to put facts into the

3 judicial notice category, and I think that's probably just coming from the

4 fact that I've been a defence attorney for many years and I think that

5 makes me a little hesitant, because what it means is that if those facts

6 are accepted, they would have occurred in another litigation in which I

7 was not involved. So that's why I have this, maybe, bit of a reluctance.

8 I do think that there may be some matters that could be

9 considered, perhaps some historical matters, perhaps some -- if there's

10 some very strong appellate opinions. One thing that does concern me is

11 that this -- the theme or actually the indictment in this case, so far, I

12 believe, as I've been following the work of the Tribunal, is the first

13 time that this particular matter has been taken up by the -- by any Trial

14 Chamber.

15 In other words, events in this area at this time -- at the time

16 alleged. So I'm not sure how that may or may not help us. Some of the

17 cases you've mentioned, I think there are other cases involved and other

18 cases have been tried, so there may be some connections between them.

19 And then finally, the Rule 61 hearing concerning General Mladic

20 and President Karadzic was a sort of a unique hearing where there was --

21 it was not really a litigation in a classical sense. There was no

22 adversarial system. In other words, it was purely the Prosecutor

23 presenting facts in order to obtain an international warrant. That's why

24 I have some reluctance in regard to that particular hearing. I'm not

25 saying that there may not have been good witnesses and legitimate

Page 151

1 witnesses, but again I'm always concerned that only one team, to use a

2 football analogy, if one only one team is playing on the field, Judge.

3 But I think that it's worth exploring.

4 JUDGE RODRIGUES: [Interpretation] Yes, I think that even if we are

5 not in, strictly speaking, the area of judicial notice, I think one could

6 always grasp chances for discussing matters and coming to a possible

7 agreement. I think we can talk about judicial notice in relation to cases

8 that have been finally judged.

9 In relation to the Mladic and Karadzic hearings, we can talk about

10 the admission of documents coming from the other case without referring to

11 it as judicial notice. So I think that we must bear in mind there is a

12 strictly technical definition of judicial notice, but there is a whole

13 series of other things that don't fit into that technical definition but

14 which can be discussed and on which agreement can be reached.

15 So I leave you with this suggestion and proposition on my part.

16 Let us now go on to point 4 -- no. Yes. Point 4 of the agenda,

17 that is to say, whether the Defence has sought disclosure pursuant to Rule

18 66(B) and 67(C) of the Rules of Procedure. We have touched upon the

19 question, but what we need to do now is to see whether Defence has already

20 requested such disclosure from the Prosecutor.

21 Have you done that, Mr. Kostic.

22 MR. KOSTIC: Your Honour, in regard to that issue, we've had a few

23 conversations, and it is my understanding that we're going to try to

24 co-operate on this issue. In other words, yes.

25 So far, for example, I have received some items in a photocopy

Page 152

1 form with the agreement that eventually, if I want to see the actual

2 tangible item, let's say a photo or something of that nature, that will be

3 shown to me. Likewise, whatever tangible evidence I would collect,

4 whether it's photos or anything of that nature, obviously I would offer

5 that to the other side.

6 I don't think that this is going to be much of a problem.

7 JUDGE RODRIGUES: [Interpretation] So as for the Prosecutor, since

8 the request has not yet been made but it is about to be made, does the

9 Prosecutor wish to resort to Rule 67(C), since the Rule envisages the

10 possibility but does not oblige the Prosecutor to do so.

11 MR. BLAXILL: Yes. Well, indeed, Your Honours, I think in that

12 sense I would like to resort to an ancient expression of keeping one's

13 powder dry. I'm as hopeful as my learned friend, Mr. Kostic, that by

14 simple mutual co-operation such issues as seeing each other's documentation

15 and disclosing information from one side to the other will be something

16 which would probably trouble the Chamber and trouble the Rules as least

17 possible.

18 Clearly, if at any time there is a problem for either, there are

19 remedies that we can come and litigate over such issues, and therefore

20 perhaps we could reserve our position in respect of 67(C) Your Honour.

21 But hopeful, as I say, that by communication and co-operation, hopefully we

22 will resolve any issues of mutual disclosure.

23 JUDGE RODRIGUES: [Interpretation] Very well. Point 5 of the

24 agenda, the possible intention of the accused or the Defence to raise one

25 of the defences, pursuant to Rule 67(A)(ii) of the Rules.

Page 153

1 The Defence has indicated that it may offer the defence of alibi

2 for certain parts of the period covered by the indictment. Have you

3 anything to add regarding this point, Mr. Kostic?

4 MR. KOSTIC: Your Honour, the easier answer in regard to number 5

5 on your agenda is obviously the 67(A)(ii)(b). That is a very clear, no.

6 That is not a defence that will be used in this case.

7 In regard to the alibi defence, I'm sort of reserving that, Your

8 Honour, and I'll tell you why, mainly because the time period is lengthy

9 in the indictment. I know you're familiar with it, of course. And

10 because I haven't quite seen every bit of discovery, I just want to

11 reserve it in the event, for example, that some witness statement comes in

12 a month or two down the road and says General Galic was at such-and-such

13 location on such-and-such date, and if, in fact, he wasn't, and I want to

14 present that evidence, which is alibi evidence, I would like to be able to

15 reserve that.

16 Generally though, generally, and so far I have not seen anything

17 in the discovery I have received so far which would cause me to tell you

18 that we would use the alibi defence. But I consider this a continuing

19 duty, Judge, to let you know if something like this occurs, and if

20 something like this occurs, I would immediately file a notice in that

21 regard.

22 JUDGE RODRIGUES: [Interpretation] Mr. Kostic, I think it should be

23 noted that if General Galic was somewhere else on a particular date, it is

24 not a witness that is going to come and say so. General Galic knows that

25 well.

Page 154

1 There's a second remark I wish to make, and that is that you must

2 communicate, according to Rule 67, to the Prosecutor -- you must notify

3 the Prosecutor of this and, in any event, prior to the commencement of the

4 trial. I wish this to be noted in the transcript. You must do so prior

5 to the commencement of the trial. And as you know, the Prosecutor, if you

6 notify him of this, then the Prosecutor has a reciprocal communication to

7 make in response.

8 I think this is something that has to be clear. The defence of

9 alibi is not going to crop up today but something that has already

10 occurred. I think you have to bear this in mind. I know you're doing

11 that, but this is just to remind you.

12 We're now going to pass on to item 6 of the agenda, and that is

13 the possible intention of the accused to testify or to make a statement

14 under Rule 84 bis of the Rules, and if so, at what stage of the

15 proceedings.

16 Mr. Kostic, on the basis of the documents analysed and your

17 discussions with the Prosecution, have these helped you to take a decision

18 in that respect?

19 This Status Conference is simply to make a checklist of all the

20 questions that we have to address and prepare for. So I am now asking you

21 the question, Mr. Kostic. Do you have a definite idea about this already

22 or not?

23 MR. KOSTIC: Your Honour, on the basis of the discovery that I

24 have obtained and reviewed, I would say that General Galic would testify

25 during the Defence's case in chief, not before.

Page 155

1 JUDGE RODRIGUES: [Interpretation] I don't know whether you can

2 answer a following question. He will testify at the beginning of the

3 examination-in-chief -- Defence case-in-chief or at the end of Defence

4 case-in-chief?

5 I have just been reminded by the interpreter. Mr. Kostic has

6 indicated that his client would testify during the Defence's

7 case-in-chief.

8 If possible, could you tell us, at this point, is that going to

9 take place at the beginning of your case, in the middle of your case, or

10 the end of your case? Could you tell us that now, Mr. Kostic?

11 MR. KOSTIC: I think there are an awful lot of factors that go

12 into making that decision. Part of it has to do with the state of the

13 Prosecutor's case by the time he finishes. General Galic, as you know, as

14 to his own testimony has a right -- in fact, he has a right not to

15 testify, I assume, but he will make that decision also. I will help him

16 with that decision.

17 It may be premature to tell you that. I'm not trying to be cute,

18 as we say in the United States, in other words, to evade your question. I

19 may not be able to answer it. I can tell you that typically I would

20 envision that the testimony would occur later in the presentation of the

21 Defence case.

22 JUDGE RODRIGUES: [Interpretation] Let me remind you that we

23 already have a practice at this Tribunal that the accused have already

24 testified at the beginning of the trial, even before the Prosecution case,

25 but I'm sure you're familiar with that fact.

Page 156

1 When the accused testify at the end of the Defence case, there are

2 far too many repetitions, and we often have the impression that if the

3 accused had testified at the beginning of the Prosecution case, many

4 witnesses would not have had to come to testify. But as you have

5 indicated, Mr. Kostic, General Galic is going to make a decision for

6 himself on this issue.

7 So we have dealt with issues 7 and 8 already, that is, the

8 collection of affidavits and formal statements and depositions as well.

9 We should perhaps limit ourselves to what we have said about the matter

10 and move on to item number 9, which is the schedule.

11 The first Status Conference -- during the first Status Conference

12 on the 11th of April, we tried to establish a schedule together. In view

13 of the situation today, I think that it is necessary to make certain

14 changes in respect to that schedule.

15 I have to remind you that the pre-trial phase is also a working

16 period like the trial itself. We consider the pre-trial phase at this

17 Chamber as a working stage of the procedure as a whole, just like the

18 trial itself.

19 As regards the preparation, if we want to have a good quality

20 preparation, we have to fix realistic deadlines, realistic time limits.

21 As things stand now, we have two status conferences scheduled for the 6th

22 and the 12th of October. Another one is scheduled for the 18th of

23 October, 2000, and the idea is that the parties inform us about the

24 progress that has been made in respect of the preparation of the case and

25 to ensure that they are able to work together. We have to sort of oblige

Page 157

1 you to work together in parallel so that you can have an opportunity to

2 get together and organise yourselves.

3 These conferences will enable the parties to tell us about their

4 pre-trial briefs and the situation with their pre-trial briefs, and they

5 will also be able to tell us how they stand concerning the provisions of

6 Rule 65 ter (E).

7 The deadline for the submission for the Prosecution has been fixed

8 for the 26th of October, 2000. The Defence has to submit its pre-trial

9 brief, provided for under Rule 65 ter (E), (F), the 10th of November at

10 the latest, and a Pre-Trial Conference provided for in Rule 73 is

11 scheduled for the 22nd of November, 2000 because it was not possible for

12 that Status Conference to take place today.

13 We have already discussed the submission of pre-trial briefs in

14 accordance with Rule 65 ter (E), and now I should like to hear the Defence

15 concerning the submission of its pre-trial brief in view of the date that

16 I have indicated, that is, the 10th of November, 2000.

17 MR. KOSTIC: In looking at what needs to be done from today into

18 October 26th and then the date of the 10th of November, I believe, Judge,

19 that --

20 JUDGE RODRIGUES: [Interpretation] We will have four months,

21 Mr. Kostic. Sorry to interrupt you, but ...

22 MR. KOSTIC: I do -- in order to respond, I do need to see the

23 final product from the Prosecutor, which is filed on the 26th, and I think

24 it would be helpful to me, and I think it would make it maybe a more even

25 situation if I did get some additional time. I think it's a little tight,

Page 158

1 the 14 days that you are allowing us here. I think it's a bit too short

2 for us to do all of the things we need to do between the 26th and the

3 10th, and I would ask the Court's indulgence to grant us some additional

4 time. I'm just afraid that that's a very short period of time, and I

5 think it would perhaps even improve our submissions if we had some

6 additional time.

7 JUDGE RODRIGUES: [Interpretation] What I had in mind as regards

8 Status Conferences, was that we at least have certain time limits. You

9 know that the time factor is very important when this comes to the

10 organisation of our work. As I told you already, today's date was

11 initially scheduled for a Pre-Trial Conference, and I don't think that we

12 can accept the idea that Pre-Trial Conferences are something that we are

13 going to have from time to time. Status Conferences need to be properly

14 organised and Pre-Trial Conference is the last one in line.

15 As I already told you, if there are very good reasons, exceptional

16 reasons indeed, we can deviate from the schedule. We are not the slaves

17 of the organisation, of course. It is the organisation of the work that

18 has to serve our purpose. But be that as it may, I think that in order to

19 obliged all of us to work hard, it is very good to have a schedule even if

20 it's only a provisional one.

21 Mr. Fourmy has drawn my attention to something that I have

22 forgotten in the agenda, and, I'm sorry, we have to go back to number 9,

23 that is, schedule for the submission of reports by expert witnesses

24 pursuant to Rule 94 bis.

25 Do you have anything to say on this matter at the moment?

Page 159

1 Mr. Prosecutor.

2 MR. BLAXILL: Very briefly, Your Honours. We anticipate at this

3 time that six expert witnesses will be necessary for the purposes of the

4 Prosecution case. Essentially they will be of carrying forms of military

5 expertise in the main.

6 I can say that in respect of -- I believe, from memory, three if

7 not four persons have already been served as part of the 66(A)(ii)

8 material, so obviously, we would have to reserve them under the approach

9 Rule to be agreed or not agreed as the Rule provides. But to that extent

10 at least, my learned friend would have had good advanced warning of the

11 contents of their potential evidence, which will doubtless be amplified

12 and tailored into appropriate form for giving their evidence as experts

13 during the trial.

14 Again, that's a matter, we trust, that in the course of this

15 summer will be finalised and open for comment and debate with my learned

16 friend Mr. Kostic, and we'll see where we can go from there in terms of

17 saving court time if they can be accepted as in writing. Thank you.

18 JUDGE RODRIGUES: [Interpretation] Mr. Blaxill, do you have any

19 idea of the number of pages and the size of these documents, expert

20 witness reports? If you do not, just tell us so.

21 MR. BLAXILL: I don't know as such. But from certain of the draft

22 work I have seen so far or have been involved in, you are not looking at

23 massive volumes. I would not anticipate any of them presenting to Your

24 Honours 100 or 200 pages worth of expertise. These will be focused, we

25 trust, and will be concise documents. Not volumes.

Page 160

1 JUDGE RODRIGUES: [Interpretation] Yes. Thank you.

2 I was going to give Mr. Kostic the opportunity to respond, but

3 actually I would like to hear him on a different matter. When we have

4 this type of document, that is, very voluminous documents, in another case

5 we agreed that the translation should be made only of the conclusions

6 contained therein, because you are familiar with the problem of

7 translation at this institution. So at least in that way, the accused

8 will have the opportunity to read the conclusions in his language.

9 However, if we want to translate the whole document, this will take us a

10 large amount of time.

11 So I should like to hear Mr. Kostic in respect of what the

12 Prosecutor has just stated, and also I should like to hear his view of

13 what I have just suggested, that is, the proposal that the Prosecutor

14 provides the translation only of the conclusions contained in those

15 documents.

16 MR. KOSTIC: I have received what I believe are either two or

17 three expert opinions. They were not identified as such because they were

18 disclosed under a different Rule. But looking at some of that, I think

19 that I'm still -- I'm reviewing that, and the issue is going to be if

20 there needs to be hired an expert who is going to counter the findings or

21 the conclusions and the opinion of the expert, then that could be an

22 issue. What I'm saying to you is if, for example, the expert report is

23 only in B/C/S and the potential expert doesn't understand, then that's

24 problematic and, of course, vice versa. So that's the only problem that I

25 would have.

Page 161

1 What I'm going to try to do is to identify a potential Defence

2 witness on the various topics -- as I say, I've got two or three -- and if

3 there is an issue in that regard, I will deal with Mr. Blaxill, see if we

4 can work something out. Obviously, as you know, if we can't resolve our

5 issues, we're going to come to you and let you resolve it. But I will try

6 to do that, Judge.

7 JUDGE RODRIGUES: [Interpretation] I think that we have covered the

8 entire agenda now. It was like a checklist of all the items that need to

9 be considered, discussed, and prepared so that we can reach the end of the

10 pre-trial stage and so that we can begin the trial in an appropriate

11 manner.

12 We have already stated the schedule for our Status Conferences.

13 By that time we will know the results of your co-operation. In the

14 meantime we can also give you some guidelines for our following Status

15 Conferences as well.

16 We have been working for an hour and a quarter and we still have

17 to deal with the motion for provisional release submitted by General

18 Galic. I think it is better for us to continue without making a break;

19 otherwise we risk running out of time.

20 As regards the motion for provisional release by the Defence in

21 this case, a motion hearing in respect of that motion will also enable us

22 to review the defence of the accused.

23 Let us now remind ourselves of the procedural background. The

24 motion for provisional release, dated the 7th of April, 2000, was filed on

25 the 13th of April, 2000. On the 11th of May, 2000, the Chamber issued a

Page 162

1 ruling scheduling a hearing on the 18th of May, 2000, the subject of the

2 hearing being the Defence motion for provisional release.

3 The Defence has requested that a hearing on that motion be

4 postponed because it had planned to go to Bosnia-Herzegovina to gather

5 appropriate evidence and to secure certain guarantees and commitments from

6 the relevant authorities of the government of Republika Srpska concerning

7 the provisional release of the accused. The Chamber therefore postponed

8 the motion hearing on the 8th of June, 2000.

9 General Galic was present at the hearing, and Mr. Kostic told us

10 that the relevant decision was not transmitted to his office. The

11 Registrar has indicated to the Chamber that knowing that Mr. Kostic was in

12 The Hague between the 23rd and the 25th of May, 2000, its office sent a

13 letter to his office in accordance with the usual procedure. The mailbox,

14 however, was never emptied.

15 At the hearing of the 8th of June, Mr. Kostic was not in a

16 position to argue his motion for provisional release. The Chamber

17 therefore gave an additional 15 days, that is, until the 23rd of June,

18 2000, for the filing of the necessary documents in support of the motion.

19 The Chamber also gave an opportunity to the Prosecutor to respond to the

20 motion.

21 The documents were filed on the 23rd of June, 2000 and they

22 consist of a declaration made by Mr. Kostic, a statement signed by the

23 accused, General Galic, and a statement signed by his wife. There has

24 been a reply to the Prosecutor's response and also a letter addressed to

25 Republika Srpska, dated 20 June 2000. In this letter, certain guarantees

Page 163

1 in respect of provisional release were requested. The Prosecutor

2 responded on the 29th of June, but no guarantees have come from the

3 authorities of Republika Srpska to this date.

4 Mr. Kostic, since he was not able to argue his motion on the

5 scheduled date because he had not been informed of the postponement for

6 the 23rd of June, he -- it was the result of his lack of due diligence.

7 In view of the decisions made by the Chamber, certain guarantees have been

8 provided, but further guarantees are necessary in support of the motion.

9 However, to this date they have not been provided. Instead, Mr. Kostic

10 has simply filed a letter which was addressed to the government of

11 Republika Srpska, which letter is dated only the 20th of June, 2000.

12 In view of his conduct concerning this issue, it seems that the

13 Defence has not shown due diligence, and in accordance with Article 6 of

14 the Code of Conduct for Defence counsel appearing before the International

15 Tribunal, in accordance with the provisions of that Article, the Defence

16 counsel are requested to comply with Article 44(B), and also in accordance

17 with the relevant provisions of the said Code.

18 Furthermore, the Trial Chamber wishes to remind you that it has

19 already noted its deep concern as regards the fact that Mr. Kostic

20 submitted, on behalf of the Defence, a preliminary motion which was

21 clearly not based on the criminal procedure which is applicable before

22 this Tribunal.

23 The Trial Chamber finds itself, therefore, obliged to declare that

24 every new motion by the Defence which will not be in compliance with the

25 general Rules of Procedure and Evidence of the International Tribunal will

Page 164

1 be considered as a serious failure to comply with the obligations of the

2 Defence.

3 Other preliminary motions were also rejected by the Trial Chamber,

4 the preliminary motions that were filed on the same day. One of the

5 motions disputed the form of the indictment. Such a motion was submitted

6 after the expiration of the time limits provided for in Rule 72 of the

7 Rules of Procedure and Evidence. The submission of this motion has once

8 again illustrated the failure of the Defence counsel to comply with the

9 relevant provisions of the Rules of Procedure and Evidence.

10 In accordance with Article 20(1) of the Statute of the Tribunal,

11 the Chamber must ensure that the accused has a fair trial and due process

12 and that the procedure is being conducted in accordance with such

13 provisions. This requirement is of a particular importance in view of the

14 seriousness and the gravity of the charges against the accused and the

15 punishment that can be imposed if he is found guilty.

16 One of the principal rights of the accused is contained in Article

17 21(4) of the Statute. In accordance with that provision, each time that

18 the interests of justice requires so, the accused must be assigned a

19 defence counsel. This provision is based on the International Covenant on

20 Civil and Political Rights, and it is repeated in the European and the

21 American Convention on Human Rights. In accordance with the jurisprudence

22 of the Committee for Human Rights, and also in accordance with the

23 jurisprudence of the European Court for Human Rights and the American

24 Court for Human Rights, this right guarantees to the accused an efficient

25 defence. In the Code of Conduct and the directive concerning the

Page 165

1 assignment of counsel before the Tribunal, this requirement is also

2 reflected.

3 Although the conduct of the Defence is an issue which has to be

4 debated between counsel and his client, the Trial Chamber is required to

5 intervene if it appears that the accused may be denied an efficient

6 defence.

7 In conclusion, the Trial Chamber, considering the concern which it

8 has expressed on several occasions and also aware of its statutory

9 obligations, wishes to make a note that will be made part of the record

10 that it has formally warned, cautioned, Mr. Kostic, who has been assigned

11 to the accused, of this issue, and it has cautioned him that conduct which

12 is contrary to the relevant provisions may entail action pursuant to Rule

13 46 of the Rules of Procedure and Evidence.

14 You have heard what the Trial Chamber has had to note and,

15 Mr. Kostic, I have to say that what the Trial Chamber wanted to do was to

16 share publicly its concerns. It is not a final condemnation, if I may say

17 so. We just wish to remind you that we have to make an effort to make up

18 for lost time.

19 Now we have to go into the merits of the motion for provisional

20 release of General Galic. We will begin with the Defence, who is the

21 moving party in this issue, and after that I will leave the floor to the

22 Prosecutor.

23 Mr. Kostic, let us hear you. You have the floor.

24 MR. KOSTIC: Your Honour, the submission which we made and which

25 you have in front of you consists of statements of General Galic, of his

Page 166

1 wife. There is also a reply to the Prosecutor's response, which is more

2 of a legal document arguing legal principles, and a letter from the

3 Defence counsel to Republika Srpska.

4 I have indicated to the Court, in paragraph 2, that I drafted the

5 statements for the General and his wife in consultation with them, taking

6 statements from them and actually translating as I spoke to them from

7 Serbian into English when composing the statements. I did that in order

8 that maybe we would shortcut some of the potential hearings, because if

9 General Galic and his wife were called to testify, they would tell the

10 Chamber pretty much what is in those two statements, and I don't think

11 that we've left anything out. So that was the purpose of those two

12 statements which are paragraph 2 of my statement.

13 As I said, the reply to the Prosecutor is something that we have

14 filed. I think that we don't need to argue beyond that, only in a short

15 form.

16 I have also indicated to the Tribunal that I've had a number of

17 meetings with the various individuals who are in the Government of

18 Republika Srpska, and have learned from them the progress in regard to the

19 co-operation between the government of Mr. Dodik and the Tribunal, his

20 visits to the Tribunal, and his concern for what is going on here, also

21 the fact that he has appointed Mr. Jovicic, who is a former judge, as I

22 indicated in my statement, who is the liaison officer.

23 Now, in paragraph 6 of my statement, I indicate that I had a

24 number of conversations with Mr. Jovicic, who has indicated, and I quote

25 from him, that the Government of Republika Srpska is prepared to send any

Page 167

1 appropriate letters and documents to the Trial Chamber, if it so orders,

2 which would guarantee the appearance of General Galic at all Court

3 hearings, that they would supervise any release and ensure that any court

4 ordered obligations be performed by General Galic.

5 In discussing the matter of a potential provisional release,

6 Mr. Jovicic has indicated that essentially what has occurred, at least in,

7 I believe, one or two prior cases which are cited in my brief, the Simic

8 case and the other matter, and that was that essentially what occurred is

9 that once the Court has agreed that it would grant the motion for

10 provisional release, before the Court would do that, they would want

11 Mr. Jovicic to be present in The Hague, to bring the letters, to bring

12 aeroplane tickets, to do all of the information that is necessary. In

13 other words, Mr. Jovicic would then become an integral part in the

14 process. And the way I described the process to me, I would then, if

15 asked by the Chamber, I would be prepared to come and discuss the issues

16 dealing with the release and the obligations.

17 For that reason is why my discussions with Mr. Jovicic occurred in

18 May, sometime between, I would believe, the 12th and the 26th of May, and

19 it was his instructions that I needed a letter as a -- the type of letter

20 which I've attached to my submission, and that I would then, if the Court

21 ruled so, I would then, of course, attend a hearing here if the Court felt

22 that it was willing to grant provisional release with the obligations that

23 the Government of Republika Srpska would honour, would follow, and would

24 guarantee, and I asked that that come -- that that directive be from a

25 Trial Chamber. But he's prepared to do that. I have indicated that in my

Page 168

1 statement, and I wouldn't have done that unless Mr. Jovicic has indicated

2 to me that they are prepared to do that.

3 The only other information that I think the Court should consider

4 is the fact that in the response by the Prosecution, there was a matter

5 introduced which dealt with a letter by General Galic and the nature of

6 that letter.

7 I had touched upon or I think the Defence has touched upon the

8 letter in General Galic's statement. This has to do with the fact that at

9 one point, General Galic had indicated that he was looking for some

10 housing because he was in the process of losing his.

11 What I would like to do, Your Honour, with the Court's indulgence,

12 and I think that General Galic is prepared to do that, I think he's

13 prepared to testify as to that particular issue if you would allow him to

14 do that. I would not have much else to add to my submission, because I

15 think it's fairly complete.

16 JUDGE RODRIGUES: [Interpretation] No, Mr. Kostic. As you know,

17 the accused here speak through their attorneys. We are not yet at trial

18 for General Galic to take his oath and testify. It's up to you to tell

19 us.

20 THE INTERPRETER: Microphone, please.

21 MR. KOSTIC: He's prepared to testify on that issue, Your Honour,

22 the issue as to his situation at one point concerning the letters which

23 are attached to the Prosecutor's submission. I can certainly make an

24 offer of proof which might satisfy you, which would shortcut and curtail

25 the General's testimony, and I'm certainly prepared to do that.

Page 169

1 JUDGE RODRIGUES: [Interpretation] Have you finished, Mr. Kostic?

2 MR. KOSTIC: Only in regard --

3 THE INTERPRETER: Microphone, please.

4 MR. KOSTIC: If you wanted me to make an offer of proof as to what

5 General Galic would testify to in regard to that particular letter, I

6 would be able to do that.

7 JUDGE RODRIGUES: [Interpretation] Yes, you may explain what is the

8 meaning of the letter. It is not a question of making an offer of proof

9 or opening a trial on that issue. You can tell us what the meaning of the

10 letter is. You have spoken about it with General Galic, so please

11 proceed.

12 MR. KOSTIC: Your Honour, as you know from the statement that was

13 filed on behalf of General Galic, which was composed on the basis of his

14 statement, I had indicated that through his military service and the way

15 the war developed in the former Yugoslavia, I had lost his home in

16 Slovenia where he was assigned and where he was on duty as a JNA officer

17 before the war broke out. Then I moved on to -- he was ordered by the JNA

18 to move to the territory of Bosnia, and I remained there and was not

19 allowed -- when the JNA was withdrawn from Bosnia to Serbia, the orders

20 were such that officers and soldiers who were not -- who were born in

21 Bosnia were to remain there, not relocate to Serbia. So at that time, I

22 stayed in Bosnia and served in the Bosnian Serb army.

23 Because I had no home, I lost in Slovenia, he was able to obtain a

24 home sometime during the war. Unfortunately, as he has indicated, that

25 particular apartment belonged to somebody else. It was vacated by a

Page 170

1 person who had fled from Banja Luka at some point during the war, and

2 General Galic was assigned that particular apartment.

3 As time progressed and after the war, the signing of the Dayton

4 peace agreement and all the issues had begun to be resolved in regard to

5 the refugee returns, there were a number of regulations, a number of

6 Statutes throughout Bosnia, both in one and the other entity, which dealt

7 with the return of homes and apartments.

8 During that process, General Galic -- this was sometime now in

9 early 1999, late 1998 -- was informed that the home which he was occupying

10 had to be vacated because the prior owner had an interest of returning or

11 claiming it or whatever, but issue was that he had to relocate. So that

12 was one issue which caused him to think about whether or not he could

13 reside in that home or had to vacate.

14 The other issue had to do with the fact that I and his wife, as

15 I've indicated in my submission, in the statement which was submitted by

16 both the General and his wife, was the fact that they're taking care of an

17 81-year-old mother who is very ill, who is literally an invalid and cannot

18 move. She is a pensioner in Serbia or in Yugoslavia, and, therefore, if

19 she remains in Banja Luka in Bosnia where she was living with

20 General Galic and his wife and had continued, she was not allowed to have

21 any kind of social benefits, which of course, for somebody who is elderly,

22 that includes medical care, and the state or Republika Srpska would not

23 cover any of her medical benefits. So she did not gain those. They had

24 to take care of all of that.

25 So that was another issue, and that had to do with the fact that

Page 171

1 they felt that if perhaps if they could get an apartment in Serbia, she

2 would be covered. That's another reason.

3 Finally, I think that he was also concerned about the fact that

4 some of the arrests which he was aware of included a certain amount of

5 violence through the years. There was an individual who was killed in

6 Prijedor during the arrest, there was -- there were other kinds of

7 arrests, breaking down the doors and all those kinds of things, and those

8 were very problematic, and the General really felt that I did not wish to

9 have his family there to perhaps witness that or be involved in that or in

10 any way be affected by that.

11 Those, essentially, were the three motivations in seeking some

12 alternate housing. The General himself wanted to and did remain in Banja

13 Luka. As I've indicated to you, that's where his ancestral home is,

14 that's where he has his brothers and sisters, that's where his job was,

15 that's where I worked, and, quite frankly, even at the time of the arrest,

16 he had followed a particular route and a routine, and, fortunately was

17 arrested outside the home.

18 The General has indicated in his submission that I would

19 personally guarantee, regardless of the guarantees by the Government of

20 Republika Srpska, that I would guarantee that I would abide by any of the

21 conditions of a release that the Court would find would be appropriate.

22 Certainly the kinds of obligations and guarantees that are in the letter

23 which I have submitted is something that I would honour.

24 And then finally, I think he's someone who, I think, is a

25 respected military officer for many, many years, and I think he's somebody

Page 172

1 who, when I swears an oath that he will do something, I does that, and I

2 think in this case I do not see him as an individual who would in any way

3 shirk any of the obligations that I would have under any provisional

4 release order or, or would there be anything to fear from him in regard to

5 any witnesses or victims in this situation. In fact, I find it

6 somewhat -- I would find it very, very difficult to imagine that I would,

7 for example, leave Republika Srpska and go to the Federation and go to

8 Sarajevo where -- I think, essentially almost every witness in this case

9 lives in and around that area. I think if -- he could live with the

10 conditions and -- that were provided in the other cases.

11 So those, I think, are the -- if he was to -- if I would have

12 testified, Your Honour, that is the type of testimony that I would have

13 given you this afternoon; in other words, his motivations as to why I

14 sought that particular apartment.

15 Incidentally, there is a response that is attached to the

16 Prosecutor's response, a response from the authorities in Serbia, which

17 pretty much refuse him any kind of comfort or any kind of home or any kind

18 of an apartment even though he is a career JNA individual who has

19 retired.

20 He has not appealed that decision that was tendered to him by that

21 letter, and I think, if anything, the refusal to even offer him some

22 housing in Serbia has more than cemented his own idea that I really does

23 belong in Banja Luka, he made the right decision to go there initially in

24 1991, to stay there, to retire there, and to remain living there, and

25 that's where I belongs and that's where I wants to go back.

Page 173

1 So that is essentially, Judge, what the General would testify to,

2 and I hope that -- I'm not sure if I've done it as well I could have if I

3 would have testified, but I'm trying to give the Court as much as I think

4 I would testify if he could take the stand.

5 Thank you very much for your attention.

6 JUDGE RODRIGUES: [Interpretation] Thank you very much,

7 Mr. Kostic.

8 The Prosecutor. Do you wish to respond?

9 MS. CHANA: Good afternoon, Mr. President.

10 JUDGE RODRIGUES: [Interpretation] You have the floor, Ms. Sureta

11 Chana. Am I pronouncing your name correctly? Here we learn a lot of

12 languages.

13 MS. CHANA: Thank you, Mr. President. If it pleases the Chamber,

14 I will address the issue of provisional release.

15 Excuse me while I ...

16 Your Honours, the Prosecutor opposes the motion for provisional

17 release filed by the accused. I refer the Chamber to our written

18 submissions filed on 20th April and the Prosecutor's further response

19 dated 29th June, and now incorporate the same into my oral submissions on

20 the motion for provisional release before this Chamber.

21 Your Honours, Rule 65 enjoins the Defence to demonstrate to this

22 Chamber and to the satisfaction of the Chamber of two conditions which

23 must be met before this Chamber can grant provisional release. Firstly,

24 Your Honours, it is that the accused will appear for trial if released;

25 and secondly, that the accused will not pose a danger to any victim or

Page 174

1 witnesses or any other person.

2 The Rule also stipulates, Your Honour, that the host country be

3 heard to ascertain their position on this application for provisional

4 release. To that end, Your Honours, on the 14th of April, 2000, the

5 registrar did write to the government, the Ministry of Foreign Affairs,

6 and invited the Kingdom of Netherlands to submit its views and writings.

7 Should no response be available, the Tribunal will proceed with its

8 division under the presumption that the Kingdom of the Netherlands hold

9 the opinion stated in a letter addressed to the registrar of the Tribunal

10 dated the 18th of July, 1996.

11 In this letter of 1996, the government of the Netherlands makes it

12 quite clear that it does not wish to concern itself on the merits of

13 provisional release but confines itself purely to the practical

14 consequences of such a release, which basically entails the Visa or the

15 permits that the accused might need to readmit himself to Holland or leave

16 the territory, because as soon as he leaves the Scheveningen detention

17 centre, he is no longer in the hands of the Tribunal.

18 The accused, of his own initiative, has failed to ascertain the

19 position of the host country as to whether he'll be readmitted into the

20 Netherlands if released. The onus in this regard, Your Honours, does rest

21 with the accused.

22 So the position of the host country, I think we can take it, is in

23 the negative.

24 The burden of proof to satisfy the Chamber for the accused's

25 provisional release rests squarely on the shoulders of the Defence. It is

Page 175

1 the Prosecutor's respectful submission that the accused has failed to

2 discharge this burden to the satisfaction of the Chamber. The Defence has

3 attempted to discharge this burden of proof by its own statement to the

4 Chamber: a statement of the accused, a statement by the accused's wife,

5 and, thirdly, a letter written by learned counsel for Mr. Jovicic of

6 Republika Srpska in an attempt to secure and guarantee from Republika

7 Srpska to ensure that the accused will be handed back to the jurisdiction

8 of the Tribunal to stand trial.

9 Your Honour, my learned friend, in his oral submissions, attempted

10 to explain why such a guarantee has not been forthcoming because he felt

11 that this liaison officer has to be invited by this Chamber to issue such

12 a guarantee. With respect, I disagree. If Mr. Jovicic was so minded to

13 give this guarantee to the accused -- after all Mr. Kostic, by letter, had

14 asked for one -- he would have been in a position to give one.

15 Your Honour, if you look at the letter, I think it's interesting

16 to note where the accused says, and I quote, and I think it bears quoting

17 because it's very curious: "I am on the list of accused for the so-called

18 war crimes during the war in BH from 1991 to 1995. For this reason," and

19 I emphasise here, "and at the suggestion of the President of Republika

20 Srpska and the person in charge of Republika Srpska, it has been suggested

21 to me that I move out of the territory." The point here being, Your

22 Honours, that any guarantee which might be forthcoming from Republika

23 Srpska can hardly be taken seriously in light of the fact that it was the

24 President himself who invited the accused to leave the territory.

25 Therefore, it is the respectful submission of the Prosecutor that

Page 176

1 the documents and the submissions tendered by learned counsel for the

2 Defence are not enough to satisfy this Chamber that the accused will

3 appear for trial or that he will not interfere with witnesses if granted

4 provisional release. On the contrary. The Prosecutor has tendered proof

5 by a letter, the letter that I just quoted, emphasising his need for

6 protection from the so-called war crimes Tribunal.

7 Mr. Kostic, in his oral submissions to the Chamber this afternoon,

8 has said there were three motivations which propelled the accused to write

9 such a letter: One is relocation, simply because he'd lost his house in

10 Slovenia; second was his aged mother so that she could get social benefits

11 in Serbia; and thirdly was his fear of the violence which he might be

12 subjected to while arrested. With due respect to Mr. Kostic, the letter

13 actually says quite the contrary.

14 Learned counsel has also made the submission that the accused is

15 unlikely to venture into Federation territory to initiate acts of violence

16 and intimidation. With respect to learned counsel, this is a very

17 simplistic argument as acts of intimidation and violence do not

18 necessarily require the accused to personally venture into Federation

19 territory to initiate the same.

20 We must also be mindful at this juncture that the accused has now

21 been given names during disclosure of most of our witnesses who will

22 testify at the Tribunal and, therefore, the likelihood of intimidation is

23 increased now.

24 Learned counsel also goes on to assert in his written submissions

25 that "the Defence has received little documentation," and I quote, "from

Page 177

1 the Office of the Prosecutor." This again, with respect, is not an

2 accurate representation of fact. The truth of the matter is that the

3 Prosecutor has disclosed a sizeable amount of the case to the Defence.

4 Your Honours, taking into account that the accused has been

5 charged with the gravest offences under international humanitarian law,

6 and also considering that if convicted the crimes will attract a long

7 prison sentence, the incentive for the accused not to appear for trial by

8 far outweighs that the accused will appear for trial if released. Once

9 again, I go back to that letter which shows the true intent of the

10 accused.

11 It is now established jurisprudence, Your Honours, that the Trial

12 Chamber must make its determination as to provisional release in light of

13 the particular circumstances of each case. It is our respectful

14 submission, therefore, that the accused in this case has not fulfilled any

15 of the conditions imposed upon him under Rule 65(B) and has not

16 demonstrated to the satisfaction of the Chamber the existence of any

17 circumstances which will justify his release by this Chamber.

18 Therefore, we ask this Court not to grant provisional release to

19 the accused, as to do so would be an extremely risky undertaking as the

20 Tribunal, as we are aware, has no enforcement powers to ensure the return

21 of the accused to the jurisdiction of the Tribunal.

22 Your Honours, unless there is something else you wish me to

23 address you upon, these are my submissions.

24 JUDGE WALD: Ms. Chana, I just have one question.

25 MS. CHANA: Yes.

Page 178

1 JUDGE WALD: Many of the factors that you listed as militating

2 against the release of General Galic were also, of course, present in

3 another Chamber's decision in the Tadic and Simic case, when the host

4 country's position was the fact that Republika Srpska had not, in the

5 past, had a long, admirable record of cooperating with the Tribunal. In

6 those cases, apparently, at least that Chamber still granted release.

7 What, if any factors, do you think are peculiar to this case that

8 would distinguish this case from those? Obviously those are Trial Chamber

9 holdings, although the Appeals Chamber refused to take an appeal from

10 them. What do you think is different or special about this case so that

11 this case would require a different result?

12 MS. CHANA: Your Honour, I believe in the other cases that you are

13 referring to, this is something which we have incorporated at length in

14 our response, is that the accused in one of those cases voluntarily

15 surrendered and the time of trial, the detention, the period of

16 incarceration before trial had become too lengthy. In our case, the

17 accused has only been incarcerated for about six months, and there is no

18 reason to believe that the trial is going to take a very long time. Even

19 if you look at the European Convention On Human Rights, even up to two to

20 three years is considered, for these kind of charges, to be quite

21 reasonable under the circumstances. I think the distinguishing factor

22 would be that.

23 JUDGE RODRIGUES: [Interpretation] Mr. Kostic, do you have any

24 remarks or responses to make?

25 MR. KOSTIC: Well, I think that a couple of things we should not

Page 179

1 forget. One is that the Tribunal began its work in 1994 -- 1993/1994 and

2 continued on, and if there's one country in Europe which talks about the

3 work of the Tribunal, it's Bosnia. In other words, all of the activities

4 are covered.

5 The General lived in one entity there for a number of years, for

6 the last eight or nine years until his arrest. And I think what's

7 significant is that he lived openly. He lived in a certain amount of

8 public light. This was not some individual who was hiding in Prijedor or

9 in Foca or someplace else. He was in the capital of the entity, he was,

10 as my affidavit indicates, he was involved in government work, and he did

11 not disappear into the background. Even after the arrests intensified, he

12 continued living quite openly and not hiding and not running at that

13 point. Even when he was refused the apartment, he continued living in

14 Banja Luka openly and not hiding.

15 I think that is an important factor to consider in this case.

16 This was a sealed indictment case. This was not a warrant that sat some

17 place and everybody knew about it and the person hid. He was, of course,

18 unaware of its existence, but he also didn't do anything in any way to

19 avoid if there was a service of that warrant.

20 So I think that's one thing that I think is important in this

21 particular case. I do think that each case has to be taken on its own

22 merits, and I agree with my learned friend in that regard.

23 I also think that maybe I disagree with my learned friend's, I

24 think, commentary on the direction that Republika Srpska is taking in its

25 co-operation and its relationship with the Tribunal. I think that they

Page 180

1 have turned a corner. I think they are involved, and again the visits to

2 the Tribunal not only by the President but also by the Vice-President, the

3 assigning of the office, the opening up of the office. Also I may add

4 that it appears that in regard to the releases done by the other Chamber

5 have been a success so far. Those individuals have honoured the

6 obligations and have reported and done everything that's asked of them in

7 that regard, and I think that's important to consider. In other words,

8 Republika Srpska is doing its part to honour its obligations and its

9 guarantees, and it's willing to do that in this particular case also.

10 Thank you.

11 JUDGE RODRIGUES: [Interpretation] Thank you very much,

12 Mr. Kostic. The Chamber is going to consider all the arguments and the

13 submissions that we have, and it will make a judgement in writing and not

14 orally. A decision will be issued in writing as it is, indeed, an

15 important decision.

16 As I think all we have to do before adjourning is to give the

17 floor to General Galic.

18 General Galic, will you please stand --

19 [The accused stands]

20 JUDGE RODRIGUES: [Interpretation] -- and tell the Chamber your

21 observations regarding three points: the caution addressed to your

22 counsel; secondly, your state of health; and three, conditions of

23 detention.

24 General Galic, you have the floor.

25 MR. KOSTIC: Your Honour, if I can interrupt, I think it's

Page 181

1 improper, and I think it's an invasion of client-attorney privilege for

2 General Galic to comment on point 1. I think it's very inappropriate for

3 him to do that, and I think it's an invasion of the client-attorney

4 privilege in this case.

5 JUDGE RODRIGUES: [Interpretation] I'm going to accept your

6 objection, Mr. Kostic. I wanted it to be written in the transcript that

7 the Chamber was quite clear regarding this point. But I will grant you

8 that it is a client-counsel privilege. I will ask General Galic to

9 comment on his state of health and detention conditions.

10 General Galic.

11 THE ACCUSED: [Interpretation] In the first place, I would like to

12 say good afternoon to Your Honours and to thank you for finding the time

13 to hear me at such a late hour regarding my state of health.

14 I can tell you, as I did last time, that nothing in particular has

15 taken place. They're taking good care of me. Nobody has hurt me or

16 offended me. I said last time, I hope that in year's time my condition

17 regarding my injury will be improved.

18 As for the rest of my health, it's quite good, but it would be

19 welcome if we could reach a specialist more quickly. The whole procedure

20 takes a long time.

21 Regarding other detention conditions, there have been no

22 significant changes since the last Status Conference and the conditions

23 are quite acceptable. Thank you.

24 JUDGE RODRIGUES: [Interpretation] So, General Galic, you may be

25 seated.

Page 182

1 THE ACCUSED: [Interpretation] Thank you.

2 [The witness sits down]

3 JUDGE RODRIGUES: [Interpretation] So to conclude, the Chamber is

4 going to render its decision in writing regarding the motion of the

5 Defence for provisional release.

6 Regarding the Status Conference, we're going to wait for the next

7 scheduled date to make an overview of the situation regarding

8 developments, and I do encourage you to work hard because there is a lot

9 to be done, and one has to be ready to work. I wish you success in your

10 work until our next meeting.

11 The meeting is adjourned.

12 --- Whereupon the Status Conference

13 adjourned at 6.12 p.m.