Tribunal Criminal Tribunal for the Former Yugoslavia

Page 13128

1 Thursday, 3 October 2002

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.07 a.m.

5 JUDGE ORIE: Madam Registrar, would you please call the case.

6 THE REGISTRAR: Case Number IT-98-29-T, the Prosecutor versus

7 Stanislav Galic.

8 JUDGE ORIE: Thank you, Madam Registrar.

9 Good morning to everyone in the courtroom, General Galic, Defence

10 counsel, Prosecution, and also those who are assisting us present as

11 always because we are fully aware that we couldn't do anything without

12 your assistance interpreting or giving the technical support we need.

13 We are here today for the Pre-Defence Conference in accordance

14 with the Rule 73 ter, and it is important to see where we stand at this

15 very moment in respect of several issues on which we received motions

16 from -- or submissions from both parties. I would like to start with the

17 easy ones, I would say. Disclosure matters, could the parties inform the

18 Chamber what happened since the last Status Conference on the 20th of

19 September where there was some problems still with the disclosure of

20 newspaper articles, books and parts of them on their way to be translated,

21 as far as I remember.

22 Mr. Ierace.

23 MR. IERACE: Thank you, Mr. President. Good morning. The parties

24 met yesterday afternoon and discussed those various matters. As well, the

25 Prosecution received a letter from the Defence dated the 24th of September

Page 13129

1 2002. If I could go through some of the issues which we raised at the

2 last mention and progress on them. We indicated on the last occasion that

3 there were some 130 entries on the Defence exhibit list for which we did

4 not have copies, in other words, disclosure had not been made. The

5 Defence, in its letter of the 24th of September, re-affirmed that they had

6 indeed provided those documents to us. We maintain we have not received

7 them, having checked the entries alongside our record of what we received

8 from the Defence.

9 Mr. President, the problem I think is partly explained by the fact

10 that the confirming letter, signed by the Prosecution, as to what it has

11 received and which is drafted by the disclosing party does not set out any

12 detail as to the documents which have been handed over with the exception

13 of a disclosure made on the 26th of April, 2001. So we have asked the

14 Defence to simply provide us with copies of those documents. Secondly, on

15 the 19th of September, the Defence provided to the Prosecution three

16 cardboard folders of documents which comprised what appeared to be

17 original B/C/S documents together with translations. Having checked

18 those, a number of those documents do not appear on the exhibit list and

19 indeed the Defence confirmed yesterday that it was their intention and

20 their belief that those documents were on the exhibit list. So that is

21 the second problem with disclosure of the exhibit list. The Defence has

22 informed us that they will make some enquiries. We will let them know

23 which of those documents are not on the exhibit list to save some time.

24 But the Prosecution remains concerned that disclosure has not yet been

25 made of items on the exhibit list.

Page 13130

1 Moving on to the topic of videos and books. On the last occasion,

2 Mr. President, that is on the 20th of September, you indicated that within

3 ten days the Prosecution should be informed of the parts of the six books

4 and the videotapes which the Defence intended to tender. That has not

5 happened. Indeed, we still have received only four books, not six. I

6 raised that with the Defence yesterday and I understand that, in due

7 course, that they will inform us but we will appreciate knowing as soon as

8 possible.

9 The letter of the 24th of September in relation to videotapes

10 informed us that the parts on which the Defence relies have been sent for

11 translation and in due course we will receive the translations of the

12 relevant parts of the videotapes. The letter also informed us that in

13 relation to the translation of exhibit entries generally, that at this

14 stage, the Defence does not require our assistance in obtaining rough

15 translations.

16 Mr. President, as to the newspaper articles, we have confirmed

17 that we have received the 16 newspaper articles. We are not sure that we

18 had received translations, but we are checking that. So I don't raise

19 that as an issue at this point until we have completed our checks as to

20 the translation of the newspaper articles. In relation to the letter

21 which was sent out by the Defence dated the 30th of September informing us

22 of the first six witnesses and anticipated exhibits, the list of exhibits

23 indicates there are none, however, two videotapes will be presented, but

24 not tendered into evidence, and I read those words from the chart which

25 accompanies the letter.

Page 13131

1 The Prosecution inquired of the Defence the identity of those

2 tapes, in other words, which of the disclosed tapes are they, because

3 there is no identification which has been provided to us. We are informed

4 that in relation to the videotape that pertains to the second witness in

5 the order of witnesses to be called, that the Defence received that last

6 weekend, indeed has not disclosed it to us. In relation to the second

7 videotape, I am told by the Defence that they will confirm precisely which

8 of the disclosed videotapes it relates to, and by reference to what

9 appears on the videotape, which of three parts, three possible parts it

10 will be. The difficulty we have with that, I understand it relates to an

11 interview of the witness, is of course we don't have a translation, we

12 don't know what the witness looks like, and it is rather unsatisfactory as

13 a method, a methodology of informing us with precision as to what is to be

14 tendered.

15 Mr. President, you also on the last occasion indicated that you

16 wanted the parties to reconsider the issue of agreed facts. There was a

17 filing --

18 JUDGE ORIE: Yes, I would rather deal with that as a separate

19 issue and first concentrate on disclosure matters.

20 MR. IERACE: Yes. Thank you, Mr. President.

21 JUDGE ORIE: Are there any observations from the Defence in

22 respect to what has been said by the Prosecution? Is it a good reflection

23 of what has been discussed yesterday and is there any comment to be made

24 on the, may I say, the complaints about the first part of the trial to

25 start? Perhaps we first start with the disclosure issues in general, so

Page 13132

1 not concentrated on the next week, such as the concern of the Prosecution

2 that now documents are disclosed which were not yet on the list, for

3 example.

4 MR. PILETTA-ZANIN: [Interpretation] Yes Mr. President. Good

5 morning to everyone. We took note of this observation. Yesterday I asked

6 from the Prosecution to give us an example so that we know what happened,

7 and the Prosecution was not able to do it. So I found out, with great

8 relief, this morning that the Prosecution would give us a list of these

9 pieces of the documents so that we can see whether perhaps this is a

10 misunderstanding between us, which is always possible, or too that it is

11 just an error on our part, just a material error which is also possible,

12 and, therefore, we will make progress in this direction. Thank you.

13 JUDGE ORIE: When will the parties further discuss this matter?

14 Because I hear that the Defence is not yet convinced that documents were

15 disclosed which were not on their list, as far as I understand; while I

16 hear from the Prosecution that such documents were disclosed not appearing

17 on the list.

18 MR. IERACE: Mr. President, there is no point in the parties

19 meeting to discuss the 130 documents of which we advised the Defence two

20 weeks ago. There is nothing more the parties do about that. The Defence

21 simply maintains they have been disclosed; we maintain they have not.

22 JUDGE ORIE: Could they be redisclosed. If the documents are

23 there, 130 documents, it would take me one hour behind a copying machine.

24 MR. IERACE: As to the second bundle, that is the documents

25 disclosed on the 19th of September which the Defence thought were on the

Page 13133

1 exhibit list --


3 MR. IERACE: -- We have done a check of those, and we could meet

4 after the conference this morning and give them, if they wish, some

5 examples so they can satisfy themselves that they have a problem. It is a

6 matter for the Defence to amend its exhibit list and by simply checking

7 whether they have indeed included those documents on the exhibit list. We

8 are happy to assist however we can, Mr. President.

9 JUDGE ORIE: What I expect the parties to do is to check whether

10 the, at least the examples indicated by the Prosecution, whether they

11 appear on the exhibit list. If they do not, and if the Prosecution is

12 able to demonstrate that they are not on the list, the Chamber expects a

13 revised list.

14 Then, the 130 documents not yet been disclosed, I think the

15 Chamber is not that much interested to hear about who, for what reasons

16 claims that they were disclosed and who contests that they were disclosed.

17 130 documents, could you give me an approximate number of pages? Are

18 these all one-page documents? I mean, are we talking about 13.000 pages

19 or 260 pages.

20 MR. IERACE: More like 260 pages, Mr. President, and we understand

21 mostly one or two-page documents.

22 JUDGE ORIE: I take it that 260 pages could be copied in

23 approximately one hour while further discussions on whether disclosed or

24 not might easily take two hours. So it will save you one hour for the

25 parties to -- and if not, I will call a meeting with the parties, ask them

Page 13134

1 to give me the 260 documents, ask them to wait for one hour, and I

2 will -- the Chamber will copy them so that the problem is solved. We are

3 here to solve the problems, rather to exploit them any further.

4 Any other comments specifically in relation to the specificity --

5 the no exhibits appearing on the list for next week while it has been

6 indicated that videotapes will be played although not tendered. But it is

7 not clear to the Prosecution what they can expect. Is there any comment

8 in that respect?

9 MS. PILIPOVIC: [Interpretation] Your Honour, as far as the

10 proposal of the Defence to show video material through one witness, and we

11 do not intend to tender this material, it is the second witness on the

12 list. I told to my colleagues that I have received this material when I

13 recently travelled to Banja Luka and I will do my best to turn it over to

14 my colleagues on the other side on Monday. I also said that it is a very

15 brief video material. There is no text, simply an illustration.

16 In our list, we also stated that we may use that video material in

17 case it is ready, and as far as the video material proposed to be shown

18 through the last witness on the list, that video material has been

19 disclosed to the Prosecution. We also have an audio transcript of that

20 material, and I told the Prosecution that I will turn over to them

21 tomorrow the tape, together with the transcript. In view of the fact that

22 tomorrow is Friday we believe that one-week deadline was complied with

23 because that witness is the last witness on our list.

24 And again, regarding that witness who is the last witness on our

25 list there is a dilemma whether he will be able to come here on Tuesday,

Page 13135

1 because he has some health problems but at any rate, we will disclose that

2 videotape on -- on Tuesday, we will disclose that tape, on Tuesday. So I

3 believe that my colleagues will be able to prepare adequately. Thank you.

4 JUDGE ORIE: Is Mr. Piletta-Zanin disappearing just for private

5 reasons or is there any specific --

6 MS. PILIPOVIC: [Interpretation] Just for a second. Just for a

7 second. He offers his apologies.

8 JUDGE ORIE: You said that you recently received a videotape with

9 no text, and you would use only a small portion of it, and you would

10 disclose it to the Prosecution next Monday. Could that not be done a bit

11 quicker? I mean, it is just copying a small portion of a videotape, just

12 pictures, as far as I understand.

13 MS. PILIPOVIC: [Interpretation] Your Honour, I will have the tape

14 on Saturday morning.

15 JUDGE ORIE: Yes, you only receive it on Saturday morning. Okay.

16 I cannot force you to copy a tape which is not in your possession. This,

17 of course, indicating material arrived late does not automatically entail

18 that finally it will be, the material will be accepted, if it would be

19 tendered, or even if it would just be played, if the Prosecution has had

20 no opportunity to look at it. So accepting it at this very moment, not

21 the Chamber, of course, is not in a position to say that you have to copy

22 a videotape which you have not in your hands yet, but this cannot be

23 understood as a decision on whether you could use it. That is an entirely

24 different matter. So we will look at the material, and we will hear the

25 objections. If the disclosure, in the view of the Prosecution, has been

Page 13136

1 too late, and we will then consider that matter.

2 The Chamber is a bit concerned about the late submission of

3 material.

4 MS. PILIPOVIC: [Interpretation] Thank you, your Honour.

5 Your Honour, I have just arrived last night, and the tape I received on

6 Saturday of Banja Luka is one and a half hour long, however, I left the

7 tape there so some technical issues can be solved because I just need one

8 small detail from the whole tape, and this is why I will not receive the

9 tape before Saturday. So there was a technical reason behind this and

10 behind the fact that we took this course. I expect that I will be able to

11 turn the tape over on Saturday to the other side.

12 I also wish to say that in case there is a problem, I will inform

13 my colleagues that we were unable to prepare this video material.

14 JUDGE ORIE: Yes. Is there anything else to be said about the

15 present stage of the disclosure? The Chamber heard the concerns. We

16 cannot solve all the problems right away, but one of the problems, I mean

17 the 260 pages is certainly an issue which can be solved and not spent time

18 on it again arguing on whether one party could blame the other, or the

19 other the one for being not specific enough on its lists, or not having

20 copied it in time. The Chamber wants this problem to be solved. If not,

21 I will do it myself.

22 Yes.

23 MS. PILIPOVIC: [Interpretation] Your Honour, I would like to say

24 that during the disclosure proceedings when Defence was disclosing

25 material, we never once received any single complaint from the

Page 13137












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 13138

1 Prosecution, complaining that there was a discrepancy between the list and

2 the materials provided. And I am very surprised that now, at the very end

3 of this disclosing procedure, and just before the beginning of the Defence

4 case, this has been brought up. I will try to inform my colleagues today

5 as to whether we do have these documents and whether we are able to have

6 them copied. But as I said, we have never received any complaints from

7 them before. We are talking about 260 pages, not about a page or two. So

8 this is why we are surprised that this has been brought up just now.

9 JUDGE ORIE: It is my understanding, but if I am wrong,

10 Mr. Ierace, please tell me, is that one of the reasons there was no

11 complaints is that the list was not specific enough so that the

12 Prosecution could not identify at the very moment that documents were

13 missing.

14 MR. IERACE: With the exception of disclosure of April 2001, there

15 were no lists. There were simply a few sentences inviting the Prosecution

16 to agree that they had received bundles of documents relating to certain

17 topics. Therefore, we are only aware of the issues when we have before us

18 the exhibit list and we check that we do not have copies of those

19 documents. Thank you.

20 JUDGE ORIE: Yes. So the understanding of what the reasons were

21 for the Prosecution that they could not identify this problem at an

22 earlier stage seems to be correct. This problem should be solved.

23 Now, we move to another issue. Is there any progress made in

24 respect of the authenticity of potential exhibits? Has the Prosecution

25 checked whether the Defence could expect any complaints about authenticity

Page 13139

1 or not?

2 MR. IERACE: Mr. President, I raise that issue at the meeting

3 yesterday, and in summary, I pointed out that it was of no use to the

4 Prosecution to go to the repository in Banja Luka since it is apparent

5 from those letters from those authorities that much of their documents

6 they have received from the Defence. So seeing the same documents there

7 and indeed which they have copied to us, to both sides, does nothing to

8 establish the authenticity of the documents. I have also pointed out that

9 it seems from the 65 ter summary of the proposed Defence witnesses, that

10 they are not calling any evidence to establish the authenticity of the

11 documents they seek to tender. Finally, I pointed out that unless we have

12 information from them as to where these documents were located with

13 precision, not just across Republika Srpska, but rather places and

14 individuals and we have an opportunity to speak to them in order to

15 establish how they came into their possession and so on, we cannot concede

16 the authenticity of these documents.

17 I should make clear that when I refer broadly to "documents" I am

18 referring to documents which purport on their face to be official

19 documents issued within the Sarajevo Romanija Corps. I don't make any

20 complaint in relation to newspaper articles. As far as the videos go,

21 video tends to speak for itself to a certain point. Once we have more

22 information about the videos, such as translations and so on, I will be

23 able to say something more sensible about that. Thank you.

24 JUDGE ORIE: Yes. May I ask comment from the Defence? It is my

25 recollection that Defence repeatedly stressed that testimony about the

Page 13140

1 source of the documents would not be enough, but even the originals would

2 have to be presented. There are several rulings of the Chamber that that

3 was not necessary. But could the Defence inform the Chamber about how

4 they would deal with specifically the source of the documents as far as we

5 understand retrieved by the Defence itself, and then handed over to

6 the -- to some archives in Banja Luka? Is it true that there are

7 no -- there will be no evidence presented on the source of these

8 documents? Could you inform the Chamber about how the Defence intends to

9 deal with that authenticity issue?

10 MS. PILIPOVIC: [Interpretation] Your Honour, during this trial, I

11 noted on several occasions that the documents found by the Defence

12 investigators in different locations, and I also informed the Trial

13 Chamber that the Sarajevo Romanija Corps had been disbanded and in the

14 areas where there were military facilities, the barracks in Nevesinje and

15 so on, our investigators found in these locations documents pertaining to

16 Sarajevo Romanija Corps. And the original of these documents were

17 submitted to the archives of the Main Staff of the Army of Republika

18 Srpska. So we disclosed the copies of these documents to the Prosecution.

19 And yesterday was the first time when my learned colleague brought

20 up the authenticity of these documents and how we were going to prove it.

21 All I can say is that some of these documents have already been admitted

22 into evidence through Prosecution witnesses. And at that point, my

23 learned friends had no objections to the authenticity. These -- the

24 documents that are, in fact, reports of the corps from December 1992. I

25 don't want to go now into explaining through which witnesses these

Page 13141

1 documents were tendered and then later admitted, but if this presents a

2 problem then the Defence is prepared to have our investigators confirm the

3 authenticity of these documents before the Trial Chamber.

4 JUDGE ORIE: Yes, Mr. Ierace.

5 MR. IERACE: Mr. President, perhaps it will save some time if I

6 can simply illustrate the problem. In the Prosecution case, the Defence,

7 from time to time, complained about the reliability of some medical

8 reports.


10 MR. IERACE: The Prosecution called evidence in relation to the

11 reliability and authenticity of those medical reports, but more to the

12 point, the Prosecution made it clear where those -- through the evidence,

13 where the documents could be located in Sarajevo. It was always open to

14 the Defence if they wished to go to the hospitals, to go to the storing,

15 the storage authorities in Sarajevo to locate and view whatever other

16 records there were. In the same sense, in the same way, what the

17 Prosecution specifically seeks are the details of those individuals, the

18 barracks, the officers, who provided these documents, who handed them

19 over, some informations to when they were handed over so that the

20 Prosecution investigators can go to these people, speak to them, and make

21 their own inquiries in order to work out if these documents can indeed be

22 relied upon. How were they stored over the last six or seven or eight

23 years and so on. That is what we seek. Thank you.

24 JUDGE ORIE: So there are two issues, as a matter of fact. The

25 first issue is whether the copies presented to the Prosecution are copies

Page 13142

1 of the documents at this moment in the archives or stored wherever. That

2 is the same issue as we had in respect of the medical records that have

3 been presented by the Prosecution. That is, if one of the parties would

4 check and compare these documents with the copies they received, that they

5 know where to find them. The second issue is a totally different issue,

6 and that is, who created them, who kept them for quite some time, when

7 they were received, by whom they were received, given by what authority or

8 what individual to the investigator.

9 Wouldn't it be appropriate that since the presence at this moment

10 of these documents in Banja Luka seems not to be the major problem, but

11 that the Prosecution is, as far as authenticity is concerned, mainly

12 focussing on where they came from, when they were produced, received by

13 whom. And since the Defence indicates that they have been retrieved by

14 their investigators, that, for example, a 92 bis statement perhaps would

15 be a good start to get information on the authenticity in this respect.

16 And then, of course, the next step might be that even the investigator in

17 the 92 bis statement says that he received them at the 30th of July in

18 1998 from Mr. X or Mr. Y. That is always an opportunity that if there is

19 serious doubt as to the authenticity, that then perhaps the source of

20 these documents could be, either by testimony or by written statements,

21 could give further information as to the creation of these documents, et

22 cetera.

23 So it is suggested, in order to prevent any long authenticity

24 debates, that the Defence prepares, perhaps by 92 bis statements, and

25 perhaps also the Prosecution could communicate with the Defence what

Page 13143

1 exactly they would like to know in order to be satisfied that the

2 documents are authentic. I mean it's of no use to seek a 92 bis statement

3 just containing 80 per cent of the information the other party thinks

4 would be necessary. So the concerns about authenticity or source of the

5 documents could be communicated to the parties so we will not lose any

6 time on incomplete information at a later stage.

7 MR. IERACE: Mr. President, I fear that this may become an issue

8 where there is much swapping of information, but not to an extent that

9 allows the Prosecution to make its inquiries. If the Defence was prepared

10 to make their investigators available to the Prosecution investigators so

11 they could sit down and talk --


13 MR. IERACE: -- We would be happy to do it in that informal way.

14 The ultimate concern is simply we need enough information to find out

15 where they came from so we can go there and speak to whoever handed them

16 over. And that might be the fastest and simplest way of doing it.

17 JUDGE ORIE: That is even most, perhaps the most efficient way.

18 Would the Defence be prepared to let their investigators give, in an

19 informal way, the information the investigators of the Prosecution --

20 Prosecutor would need in order to verify the sources of these documentary

21 material?

22 MS. PILIPOVIC: [Interpretation] Your Honour, I will try to get in

23 touch with my investigators as soon as possible. I just wish to

24 underscore they only have one investigator, because the second

25 investigator who was also on the case, he has just been engaged as the

Page 13144

1 main Defence counsel before this Tribunal in another case. So this will

2 leave me with one.

3 JUDGE ORIE: Yes, but I think if he was your investigator at that

4 time, he could provide the investigators of the Prosecution with the

5 information. But I do understand you say I have to be in touch with the

6 investigators, but of course the investigators are assisting the --

7 MS. PILIPOVIC: [Interpretation] Yes, your Honour.

8 JUDGE ORIE: -- Assisting of the counsel. So I take it the

9 Defence counsel will such give a positive response as a matter of

10 principle to the suggestion of the Prosecution.

11 MS. PILIPOVIC: [Interpretation] Yes, your Honour.

12 JUDGE ORIE: Yes. That was the issue of the authenticity of

13 potential exhibits. The Chamber would very much like to be informed about

14 the progress made in this respect.

15 Next issue, points of agreement. At the Status Conference, we,

16 unfortunately, had to establish that in the attempts made already quite

17 some time ago before the Prosecutions case started finally never succeeded

18 in a longer list of -- and only a very short list. Has any progress been

19 made whether it be on confrontation lines or whatever or the beginning of

20 the conflict or -- so that we could save time and not hear any evidence on

21 facts that are, between the parties, not contested.

22 MR. IERACE: Mr. President, I raised this issue yesterday and the

23 Defence indicated that they preferred to wait until the decision on the

24 application under Rule 98 bis was handed down. With that in mind, we

25 agreed to meet tomorrow afternoon.

Page 13145


2 MR. IERACE: Early afternoon, to discuss the matter further. As

3 to the appropriate process, I propose that since the Prosecution had now

4 presented its case, the Defence could perhaps indicate what in the

5 Prosecution case they didn't dispute and we could do it that way. It

6 would be difficult for the Prosecution to make specific proposals as to

7 what might not be contentious. The issue also of, perhaps, the

8 involvement of an officer of the Trial Chamber or a Judge was also

9 discussed in a preliminary fashion. Thank you.

10 JUDGE ORIE: Yes. Perhaps sometimes the presence of a third

11 person would -- could promote progress to be made by the parties. This,

12 perhaps, is also the point where I should express the regret of the

13 Chamber that where we intended to have the decision on the 98 bis motion

14 to be filed yesterday, that unfortunately we were not able to do it. We

15 expect it to be filed today, so that the parties could continue their

16 efforts with a better understanding of what the present position is.

17 Then the next issue would be the translation of documents. We

18 heard that approximately 50 per cent of the documents were translated,

19 that there were still some concerns. Is there any new information in

20 respect of translation of documents to be tender said?

21 MR. IERACE: Only from the Prosecution end that in the letter

22 dated the 24th of September, the Defence have indicated they do not need

23 the assistance of the Prosecution to translate documents to be tendered at

24 this stage.

25 JUDGE ORIE: At this stage. So I expect that there will be no

Page 13146

1 problems that would prevent us from continuing at this stage. Yes.

2 One of the other issues would be the application of Rule 84. The

3 Chamber is not yet informed about whether we could expect a statement,

4 because no opening statement has been made by the Defence at the beginning

5 of the trial, whether the Chamber could expect a statement being made

6 before the presentation of the Defence evidence?

7 MR. PILETTA-ZANIN: [Interpretation] Mr. President, before

8 Ms. Pilipovic gives you the answer to this question, perhaps this is just

9 in relation to the translations. We see that it is a little late, and

10 that there could be some problems in a sense that some of the annexes that

11 were supporting material for the expert reports, some of them are in

12 Russian, which is the case of one report. Then some of them are in

13 Serbian-Croatian or other languages. And these documents are just

14 annexes. These are supporting documents and they haven't been translated.

15 These are the problems that we could have, and I thought I would just

16 bring it up in case it is important.

17 And in relation to the question in relation to Rule 84, there will

18 be certainly an opening statement by the Defence. Thank you.

19 JUDGE ORIE: Could you give us an indication on how much time that

20 statement would approximately take?

21 MS. PILIPOVIC: [Interpretation] Your Honour, I spoke to my learned

22 colleagues and also had a question by them, and our answer was that we

23 will -- we will speak -- we will make our opening statement for two and a

24 half hours, maximum. I also informed my colleagues that Defence will be

25 using some maps and some video material that we will hand over to our

Page 13147












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 13148

1 colleagues in due course and also I got in touch with the translation

2 service, and I believe that on Monday if we start in the afternoon, I will

3 be able to provide the interpreters with the opening statement.

4 JUDGE ORIE: Yes. You mean the written version of the opening

5 statement so that they have it?

6 MS. PILIPOVIC: [Interpretation] Yes, yes.

7 JUDGE ORIE: Thank you for this information, Ms. Pilipovic. The

8 annexes, sometimes annexes take five times the volume of a report;

9 sometimes the report takes five times the volume of the annexes. Could

10 you give us some indication on what -- are they smaller annexes or are

11 these huge annexes?

12 MR. PILETTA-ZANIN: [Interpretation] Mr. President, this is a very

13 reasonable amount of pages that I am talking about.

14 JUDGE ORIE: Yes, what is reasonable, what is not reasonable is I

15 think to be --

16 MR. PILETTA-ZANIN: [Interpretation] I hope that it will be

17 reasonable for the Chamber. We are not talking about a large amount of

18 additional material.

19 JUDGE ORIE: Yes. These annexes, I am expecting that they will

20 have titles. I think one of the first things that could be done is that

21 the titles, if they are not yet translated and the report itself, that at

22 least the Prosecution knows what these annexes are about, or does that

23 become clear from the report?

24 MS. PILIPOVIC: [Interpretation] Your Honour, the annexes will be

25 part of the expert reports.

Page 13149

1 JUDGE ORIE: Yes, but what I would like to know, that if there are

2 annexes, sometimes it becomes clear from the report what the annexes are

3 about. Sometimes they are just annexes and you have to guess what the

4 relation of the annexes to the report is. Is it clear from the reports

5 what the annexes contain or what is their content, what is their meaning

6 in relation to the report?

7 MS. PILIPOVIC: [Interpretation] Your Honour, newspaper articles

8 that my colleague spoke about, and they will be used within the report by

9 one of our experts. These are newspapers that are pointing to the content

10 of the report. So these are newspaper articles that the expert uses to

11 write his report. The only problem is, is that there are about 20

12 newspaper articles. They have -- they are not in English, that is, they

13 are not in a language that would help my colleague to read the newspaper

14 articles. So this is -- this was underlined in our talks as the problem

15 of translation, yes.

16 JUDGE ORIE: Well, of course, that these annexes are newspaper

17 articles is new to the Chamber. We had no idea. I know that most

18 newspaper articles are not 50 or 60 pages, but usually just shorter text.

19 Is there any other issue concerning translation that needs attention at

20 this moment?

21 If not, and having dealt with Rule 84, perhaps we come to the --

22 MR. IERACE: Mr. President --


24 MR. IERACE: -- Before we leave the issue of translation, there is

25 a related issue. In relation to the parts of the books that are to be

Page 13150

1 tendered, and, therefore, the translations of those parts, when I inquired

2 yesterday as to progress on that, and that fell within the ten-day time

3 limit that you set on the 20th of September, I was simply informed that

4 there was no progress, and there was no suggestion of any date by which

5 that would be accomplished, and of course, an even more primary issue is

6 that we have only received four of the six books. Could I suggest in

7 relation to the remaining two books if the Defence remains of the view

8 that they have given us six books, perhaps they could indicate within say

9 by Monday, the dates on which they say they gave us the books, and also

10 the titles. I certainly recollect the Defence handing to me personally

11 four books on one occasion and not six. Secondly, I think there needs to

12 be a time limit by which the relevant parts of the six books are

13 communicated to us. Thank you.

14 JUDGE ORIE: Ms. Pilipovic, could you please respond to that

15 observation.

16 MS. PILIPOVIC: [Interpretation] Your Honour, the Defence will, in

17 any case, give these answers to our colleagues in relation to the books by

18 Monday. My reports that I have say that six books have so far been

19 disclosed to the colleagues. I will check this. As far as the

20 translations are concerned from the books that we intend to use, the

21 Defence will do what they -- in accordance with the order of the Chamber,

22 so that every part from the book will be handed over to the colleagues

23 seven days before the witness, unless, of course, my learned colleagues

24 wish to have these parts well before, and I will do my best to hand them

25 over before.

Page 13151

1 JUDGE ORIE: Yes. Let that be clear that the general rule that

2 disclosure should be complete and that only in cases of urgency that

3 disclosure should not be later than seven days before and the indication

4 of what documents will be tendered should not be later than seven days

5 before. But the seven days' rule is not the general rule on disclosure,

6 it is just the exception.

7 Then the Chamber would not like to be confronted again with any

8 discussions on four or six books. It should be clear at this moment that

9 all parts of the six books indicated should be in the hands of the

10 Prosecution. If they are not, let's not spend time on lengthy discussions

11 on whether they should be there or not, but let's, if necessary, copy

12 again the relevant pages so that we can proceed.

13 MR. IERACE: Mr. President, just before we leave that --


15 MR. IERACE: -- Do I understand it, we don't even have the titles

16 of the six books which makes it very difficult for us to find out what

17 we -- what we should have, and that is apparent from the first provisional

18 list. It simply says, passages from six books regarding relevant events

19 from war in Bosnia. So if not --

20 JUDGE ORIE: I can't imagine that this way of presenting your

21 material could create quite some confusion. Could you give us the titles

22 of the books, Ms. Pilipovic?

23 MS. PILIPOVIC: [Interpretation] Your Honour, the first book, one

24 of the first books, is "The Suffering of Serbs in Sarajevo" and this book

25 is both in Serbian and in English. And this was disclosed by the Defence.

Page 13152

1 The second book, and I think two books are by Mr. Stjepan Siber that we

2 already used, one book is by Mr. Kerim Lucarevic and I think that one book

3 is by Sir Michael Rose, which is also available in English, and I think at

4 the moment, we have five books here. I will check if there are any more

5 books.

6 JUDGE ORIE: Yes. I hope that you understand that if there is any

7 discussion about four or six books and that when asked, you come to five,

8 I know that it is the average between four and six. But it is not very

9 precise. It is also not clear to me whether, for example, you would count

10 the book on the suffering of the Serbs in Sarajevo, your B/C/S version is

11 one book and the English translation is another book; or whether that is

12 one book of which two versions exist?

13 MS. PILIPOVIC: [Interpretation] One book. It is one book,

14 Your Honour.

15 JUDGE ORIE: Yes. Then you might even be short of two books at

16 this very moment. But, I mean, you know what books you want to use,

17 whether there are four or six or seven or three or five, let's make sure

18 that the relevant parts of the books that you are going to use are within

19 36 hours in the hands of the Prosecution. Perhaps first check the

20 Prosecution could tell you what books they have in their entirety then

21 they might tell you whether they know what the passages are, whether they

22 are aware of the passages you would like to use, and then whatever is

23 missing, you try to find the books or at least the passages you want to

24 rely upon so that we can proceed.

25 MS. PILIPOVIC: [Interpretation] Your Honour, I expect that we will

Page 13153

1 resolve this problem in the course of the day.

2 JUDGE ORIE: Okay, that's even quicker than 36 hours. Thank you

3 for that.

4 Then, is there any other translation or it was both the

5 translation and the disclosure issue, as a matter of fact, to be discussed

6 at this very moment?

7 May I also ask you, Ms. Pilipovic, in respect of next week, before

8 we come to the list of witnesses, whether the, I would say the logistics

9 of the witnesses are causing any problems as far as next week is

10 concerned? I mean transportation well whatever, problem from home, up

11 until arrival in The Hague and appearance in this court?

12 MS. PILIPOVIC: [Interpretation] Your Honour, as far as I know, the

13 cooperation between the representatives of the Defence and the VWU is

14 satisfactory, and as far as I have been informed, there have been no

15 problems arising from the witnesses who should arrive in The Hague next

16 week. The only thing is that the last witness who had a visa, received a

17 visa is at a conference so he is not sure whether he will be arriving on

18 Tuesday or Thursday. Also, I was informed that there was a list of the

19 witnesses that was submitted for next week, so that will be a week

20 following or starting the 12th, or after the 12th. So for the time being

21 the Defence has no technical problems, so to speak, regarding the arrival

22 of witnesses.

23 JUDGE ORIE: Yes. Then next issue, we received a motion for

24 protective measures in which quite separate issues are dealt with. I am

25 not going into any detail at this moment in open session. Part of the

Page 13154

1 motion deals also with videolink, which, of course, is not a protective

2 measure as such or problems like, say, of conducts of witnesses which is

3 not a protective measure. Did I understand well, Mr. Ierace, that a

4 response has been filed or will be filed yesterday or today so that the

5 Chamber can consider the matter?

6 MR. IERACE: Mr. President, that will be filed today. I note that

7 there is an issue in respect of the first and second witnesses to be

8 called and all the more reason why we should file it today.

9 JUDGE ORIE: Yes. So that -- did we receive the witness list for

10 the first week? Did we receive copies? I haven't seen any and

11 Ms. Pilipovic usually, if the Prosecution did send you their list of

12 witnesses with the exhibits to be used, copies would be sent -- we have

13 received them? Yes. We have not seen them, but we have received them.

14 It seems that those assisting us have finished -- perhaps we might pay --

15 we might have to pay a bit more attention to the procedure of that so that

16 we are informed at the earliest stage about the order of appearance of

17 witnesses.

18 Then we have the witness, list of witnesses.

19 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I know very

20 well that we shouldn't speak about this subject in detail, except in

21 closed session, but the Defence would like to underline a point which is

22 important. The principle, speaking about protective measures, in fact,

23 and I think that we have to state this clearly, for many witnesses and in

24 fact for all of them for whom we have asked these measures, Defence is in

25 a difficult situation. We don't have any other choice but to do this

Page 13155

1 because these witnesses said, "if we are not guaranteed a protection when

2 we come back from testifying, we will not come and testify."

3 So this is a safe conduct issue and I am talking about the

4 globality of the issue. I am not talking about in details. This is a

5 general problem which applies to all of these witnesses who are in the

6 same predicament.

7 JUDGE ORIE: Yes. I think we are not -- we could not deal with it

8 in a specific way, but there are some general questions.

9 First of all, the Defence has indicated that there is a specific

10 fear for travelling through the BiH territory because of violations of

11 rules of the road agreements. There were no further details given in that

12 respect. It was a very general allegation. That is one issue of which

13 the Chamber might like to be -- to receive more specific information. And

14 then perhaps I have to address the Prosecution and the Defence at the same

15 time. The Chamber has never inquired in further detail about the -- about

16 the travelling of witnesses. Is my understanding right that most of the

17 witnesses would fly from Sarajevo to Amsterdam? Because the Chamber would

18 like to know what territories we are talking about. I mean, if you say,

19 "No, the usual way of travelling is we first go to Budapest and then

20 Prague, and then we arrive in Amsterdam." Then, of course, it's a totally

21 different issue. One of the things the Trial Chamber noticed is that

22 there seems to be special concern about the temporary presence on the BiH

23 territory. One of the issues that has been raised is the presence on Dutch

24 territory. As far as the last issue is concerned, I might advise the

25 parties to consult the host agreement which deals with the safe witnesses

Page 13156

1 on Dutch territory, so no specific orders there are necessary, because

2 that is in the host agreement between the Tribunal and the Kingdom of the

3 Netherlands. So we would like to know exactly where the problem is as far

4 as safe conduct. Are we just talking about travelling from Republika

5 Srpska to Sarajevo airport or are we -- it is not clear from the

6 submissions made until now. So it is also very difficult to give

7 decisions in that respect.

8 And, of course, I do not know whether the travelling schedules of

9 the Defence witnesses will be the same as for the Prosecution witnesses.

10 So the Chamber would like to be informed in more detail about that.

11 Another issue that has been noticed by the Chamber is that, in

12 most cases I would say, the protective measures sought are pseudonym and

13 facial distortion. I would say this is the great majority. If the

14 Prosecution files its response today, could the Chamber expect to have

15 major objections to these type of protective measures sought? Or could we

16 expect to have, well, let's say in 80 per cent of the case, say no

17 objections against the facial distortion and pseudonym?

18 MR. IERACE: Yes, Mr. President. It is the latter. In other

19 words we -- essentially the thrust of the submission will be not against

20 the type of protective measures sought but the extent of the witness list

21 to which that protective measure is sought to apply.

22 JUDGE ORIE: Yes. I do understand that you say there are very

23 many witnesses that are seeking protective measures. Then in general

24 terms, the list of witnesses, we have now a list announcing 186 hours and

25 it may have been clear to the Defence that the real bottom line would be

Page 13157












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 13158

1 170 hours. Could the Chamber first receive an explanation for this

2 difference. Even if it is only 10 per cent, it is 10 per cent.

3 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. I think

4 that the Defence has tried very hard to respect what you call the "real

5 bottom line." But the Defence cannot do more than what it can, and the

6 Defence has tried to make it as concise as possible, and we are trying to

7 make more efforts as we go along, as the case is developing. But as we

8 are presenting our case. But we cannot do more before we know what your

9 decision would be as to limiting the time. And this is quite close to

10 what you have already announced. And the Defence still believes that the

11 Prosecution took many more hours than the 196 hours announced, and I think

12 that we do not think that the equality is as good as we could have

13 expected it.

14 JUDGE ORIE: Yes. It is of no use to repeat what you said before,

15 is that in your view, the Prosecution took more time. I mean, this is not

16 a discussion where "yes or no" are really contributing to the solution of

17 a problem. The Chamber will consider whether it will give the Defence

18 access to their calculations. Until now, apart from your observation,

19 that it was more than the 170 or hours, no reasons are given why you think

20 it is more, so that is not a very useful discussion at this very moment.

21 MR. PILETTA-ZANIN: [Interpretation] Mr. President --


23 MR. PILETTA-ZANIN: [Interpretation] -- If you wish me to give the

24 exact reasons why we think that there should be more, we can give you

25 these reasons, but it will take time. Of course, I can do it very

Page 13159

1 briefly. We can think -- we can tell you what we think we will get from

2 each witness.

3 JUDGE ORIE: Yes. But let's be short. We have two issues, first,

4 whether the Prosecution took more time than Chamber indicated, that was

5 what you said, that in your view, the Prosecution took more time. Now you

6 are touching upon a different subject, and that subject is why the Defence

7 would need more time.

8 The Chamber will consider, we will give you an opportunity to

9 defend that and I am not going to make any comments on this at this very

10 moment. If you look at the statistics of the Tribunal, if you look at

11 your list of witnesses, and especially the issues they are dealing with,

12 you would rather expect, but we haven't heard your argument yet, that the

13 presentation of Defence case, as in almost all cases, would take less

14 time. But we will first consider whether we will give you an opportunity

15 to argue on why you would need more hours, but as it stands at this

16 moment, is that you are bound by the number of hours really as a bottom

17 line of the time taken by the Prosecution.

18 Then we have some complaints but the specificity of the summaries

19 of the witnesses and the relevance of the witness statements. We have

20 seen submissions by the Prosecution. We have seen response by the

21 Defence, also dealing with the issue of tu quoque and reprisals and the

22 establishment of what were military targets. Let me just try to identify

23 what the main problems are.

24 I think one of the first issues is that the Prosecution seem to be

25 a bit concerned about the changes in lists, if we would compare the first

Page 13160

1 provisional list of the 2nd of August, and then the other list of the 19th

2 of September, that the Prosecution might not have been concerned that much

3 about the witnesses that disappeared from the list, but perhaps also about

4 the new witnesses that appeared on that list.

5 So that is the, I would say, the consistency of the list, if the

6 list would be changed too frequently, that would, of course, give major

7 problems to the Prosecutor -- Prosecution to prepare for

8 cross-examination. Then I see that the Prosecution, and that has been

9 dealt with also in your response, is complaining about the relevance in

10 respect of a tu quoque and your response to that. One of the other issues

11 is that the testimony would deal with well-established matters. One of

12 the complaints of the Prosecution is that the witnesses were only or were

13 at least in Sarajevo prior to the time of the conflict, and, therefore,

14 are not very relevant.

15 The Chamber has some difficulties in predicting the relevance of

16 the testimony. That is also because of the witness summaries provided

17 until now. If I may just go through a few examples in order to explain

18 what our concerns are, if I would look, for example to number 34 on your

19 list the subject matter of the testimony is that -- perhaps I -- the

20 witness is a resident of Pofalici. He'll testify about the attack of

21 Muslim forces against Pofalici and about expelling of Serbs from Pofalici.

22 This leave a lot to guess about the relevance. The Chamber is not in a

23 position to say it is irrelevant, but at least the connection with the

24 indictment is at least not clear.

25 So, therefore, it is very difficult and would have similar

Page 13161

1 problem, for example, with, just to draw your attention to number 47 or

2 number 48, without going in any details. They are very short and their

3 relevance does not become clear.

4 That is also the reason why the Chamber has asked to provide the

5 witness list in specific categories. Perhaps it has not become entirely

6 clear, but the Chamber wanted to have the issues on which the witnesses

7 were -- would testify. I would say, more or less, according to the

8 initial list. Now we see that the last list is very much of witnesses

9 effect, of expert witnesses. That gives no further information. The

10 Chamber also asked to put those witnesses in order of priority. That

11 means, the most important witness at the top, the next one down, and the

12 less important witness at the bottom. And it will be no surprise for the

13 Defence that the reason the Chamber asks for this to be done, is that we

14 could, while hearing the testimony, going from the top of the list to the

15 bottom that the Chamber could at a certain moment either establish that

16 every new witness comes up with new important relevant material, that

17 would be a reason to go as far as down, as that would change, if at a

18 certain moment the evidence would become repetitious, irrelevant. Then,

19 of course, the Chamber might consider that it has heard enough evidence on

20 the issue at stake.

21 On the basis of the summaries given until now, it is also very

22 difficult for the Chamber to give a final number of hours available to the

23 Defence. As I told you before, the bottom line would be 170 hours, but

24 that might not be the final word in that respect. Presentation of

25 evidence is always under the control of the Chamber and, of course, we

Page 13162

1 will have to see how things develop. But perhaps at this moment, more

2 clear information should be provided, both for the Prosecution to prepare

3 for cross-examination, and for the Chamber to decide upon the relevance,

4 and, therefore, whether there would be any need to reduce the number of

5 hours.

6 These are some general observations the Chamber would like to

7 make. Perhaps we will have a break and then give the parties an

8 opportunity to add whatever they want to add, what their response will be

9 on these issues. And I might already suggest to the Defence that, of

10 course, 92 bis could certainly help us to reduce the time needed to hear

11 the evidence, and, of course, I do understand that you will deal with that

12 at a later stage this week, compromising upon certain facts, of course,

13 will reduce the need to hear evidence on these facts considerably as well.

14 We will adjourn until 11.00, but I will first give the parties the

15 opportunity to see whether there are any other issues on the agenda they

16 would like to discuss after the break.

17 Are there any subjects, apart from those we touched upon already?

18 MR. IERACE: No, Mr. President.

19 MR. PILETTA-ZANIN: [Interpretation] No.

20 JUDGE ORIE: Then we will consider during the break whether we

21 would have any additional agenda points. So we will adjourn until 11.00,

22 and then the first thing I will do is to give the parties the opportunity

23 to reply to the witness list, relevant time, et cetera.

24 --- Recess taken at 10.30 a.m.

25 --- On resuming at 11.05 a.m.

Page 13163

1 JUDGE ORIE: Before we continue the -- before we continue to

2 discuss the list of witnesses and to give the parties an opportunity to

3 make their submissions, I first have a question to the Defence,

4 Ms. Pilipovic, Mr. Piletta-Zanin: The last list you provided to us, apart

5 from the categories not specifically dealing with issues, but rather broad

6 categories, such as witnesses of fact or expert witnesses, but on these

7 issues is this list already in priority order, that means the most

8 important one at the top, less important one at the bottom?

9 MS. PILIPOVIC: [Interpretation] Your Honour, the Defence handed

10 over the list of witnesses according to categories, which is what the

11 Trial Chamber wanted us to do.

12 JUDGE ORIE: But within each category?

13 MS. PILIPOVIC: [Interpretation] Yes, Your Honour.

14 JUDGE ORIE: It also means that this should guide you in the

15 calling of witnesses. I am not saying that you have to deal with one

16 category always, but you can't call one of the lower positioned witnesses

17 first and then the upper. So you have to -- I mean, if there are good

18 reasons you say we go to number four before we deal with number three,

19 that's fine. But in general terms, you should -- the calling order should

20 be in accordance from top to bottom.

21 Then, for both parties, the Chamber would like to receive

22 information about two issues by next Wednesday, and that is whether any

23 progress has been made in relation to the stipulated facts; and whether

24 any progress has been made by -- in respect of the investigators to meet

25 and to discuss the sources of the documents. If it would turn out by next

Page 13164

1 Wednesday that no considerable progress has been made, the parties should

2 prepare for a meeting, either with the SLO or with one of the Judges on

3 Thursday morning to see what progress can be made. So, please, take care

4 of that in filling your agendas.

5 Then, Mr. Piletta-Zanin, you will have an opportunity before I

6 give a final opportunity to the parties to make any further submissions on

7 the list of witnesses. You will first have an opportunity for, well,

8 let's say, ten minutes to explain why you might need or you will need more

9 time than the Prosecution took for the presentation of their case. So

10 perhaps we first hear that so that the Prosecution would also be in a

11 position to respond to that part, if making further submissions at a later

12 stage this morning.

13 Please proceed, Mr. Piletta-Zanin.

14 MR. PILETTA-ZANIN: [Interpretation] Do you want me to do it now,

15 Mr. President?

16 JUDGE ORIE: Yes, please.

17 MR. PILETTA-ZANIN: [Interpretation] It will be very brief. The

18 reason why we believe that this number of hours is necessary to us is

19 based on two elements. The first one was the assessment or the estimate

20 that we made, as accurately as we were able to, of what our witnesses will

21 be able to say. And the second of these elements is, of course, has to be

22 factored in the surprise effect because we know very well that what can

23 happen during cross-examination, a witness of one side can say a lot more

24 than what was expected, a lot less, or completely -- something completely

25 different. So this is a kind of strategic reserve that we need. It is a

Page 13165

1 kind of oxygen tank, so that we can make a balance with other witnesses,

2 also on important issues as important as shelling. As I told you already,

3 it is probable that during the case of the Prosecution -- case of the

4 Defence can be diminished as we -- so there shouldn't be any surprises

5 during cross-examinations, but this was one of the points.

6 Another point which seems even more important now is the need --

7 and here, Mr. President, I still don't have your decision in my hands. I

8 am just deducing. This is just by deduction that I am making, this is an

9 assumption that I am making these observations. Now, with regard to

10 shelling incidents, for one reason or another, you may have decided that

11 there was a campaign or at least that there are reasons to believe that

12 there was a campaign, which would then implicate that there was a will, an

13 intention to inflict terror on the population. Therefore, our witnesses

14 who are mostly soldiers, military personnel who were on the front lines,

15 it will be necessary for them to come and speak here before your Chamber.

16 Then each of the companies here did not have an order to fire at

17 such-and-such a target, allegedly civilian, but this is essential, that

18 each one of these soldiers will come and that they did know the number of

19 legitimate targets in the city, which will then give the appearance that

20 there was a random shelling or that it could have represented what we call

21 a campaign or that it was just an importance, that it can be interpreted

22 by a Chamber that it was -- there was intention to inflict terror on

23 civilian population.

24 Now these witnesses should then even be worked on more by the

25 Defence that is in relation to your decision, if I am assessing it

Page 13166

1 correctly. So if we ask them here, was there a military target, yes, and

2 so on and so on. So this is a little bit we still have some blind spots

3 because we don't know very well how this exercise is going to be carried

4 out. And perhaps we will have more insight as of next week. But this is

5 just the general outlines.

6 Another matter that you mentioned, we will try and save time. The

7 34, the Pofalici, now this considering that there was a very rough

8 presentation of facts, the Pofalici is going to be very important because

9 the witness is going to be able to say, what are the shellings that they

10 suffered, and this is not tu quoque, it is a different thing. He will be

11 able to say that equally, how many shellings occurred by error in the area

12 they were defending. These were technical errors that happened on one

13 side, so they happened on the other as well. It may happen that this

14 witness will come and say yes, these shellings did take place by mistake

15 on civilian areas and this is a mistake. So this is very important for us

16 to say that such-and-such a shelling that happened, happened -- also

17 happened by error. Am I to stop or should I --

18 JUDGE ORIE: [Interpretation] If you could just slow down, please.

19 MR. PILETTA-ZANIN: [Interpretation] I apologise. I had the

20 Serbian language -- I was listening to the Serbian language.

21 So that's it. I understood your gesture, Mr. President. I

22 interpreted that as an invitation for me to stop, but it wasn't, but

23 certainly I am going to stop here, because I think that we said enough,

24 and I hope that we were clear. Thank you.

25 JUDGE ORIE: Thank you, Mr. President. A bit surprising that

Page 13167












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 13168

1 after the summer you stop even without being invited to, but then I

2 remember I wished you a relaxed summer at the 2nd of August.

3 Then I would like to give an opportunity to the Prosecution to

4 make any further submissions in respect of the list of witnesses, and then

5 finally given an opportunity to Defence to respond to that or to make

6 whatever further submissions they would like to make in this respect. And

7 if there would be nothing else on the agenda, we would then conclude this

8 pre-defence conference.

9 Please proceed, Mr. Ierace.

10 MR. IERACE: Thank you, Mr. President. I assume that you also

11 expect to hear from me within those ten minutes on the sufficiency of the

12 Rule 65 ter descriptions.

13 JUDGE ORIE: Yes, that is part of the -- part of the submissions

14 you made in writing before and I would like to give you -- although, I did

15 limit Mr. Piletta-Zanin to ten minutes, which he didn't even use, for the

16 specific reasons why the Defence made the reservations as far as the time

17 allocated to them was concerned. I would give a bit more time to both

18 parties to make further submissions, so if that would be a quarter of an

19 hour, 20 minutes, it would be no problem. So don't feel that much limited

20 making these further submissions. Please proceed.

21 MR. IERACE: Yes, Mr. President. In fact, I think I will be very

22 brief. The explanation just given by the Defence in relation to the

23 anticipated evidence of Witness 34 firstly, illustrates the insufficiency

24 of the summary of facts which appears alongside that person's name.

25 Secondly, raises further issues as to the nature of that evidence in terms

Page 13169

1 of its internal logic. Firstly, in respect of the description which was

2 filed, that is the summary of facts which was filed, on the basis of that

3 summary of facts, it is impossible, in my respectful submission, to elicit

4 from it anything of relevance to the case.

5 Using that as an example, the Prosecution is of the view that it

6 may well be that its cross-examination of witnesses called by the Defence

7 will be limited. The Prosecution does not intend to cross-examine for the

8 sake of using up the time it is allocated. Yesterday, I indicated to the

9 Defence that it should be ready to call its witnesses in quick succession

10 for that reason. By the same token when witnesses who, at least the

11 Prosecution regards as being of more substance and relevance, the

12 Prosecution would respectfully seek leave on some occasions to go beyond

13 the allocated time, that is, beyond the period of time which the Defence

14 takes in chief, with the overall objective of keeping well within the same

15 period of time that the Defence takes with its witnesses, examining them

16 in chief.

17 So, Mr. President, on the face of it it is difficult to conclude

18 otherwise, that is, on the face of the schedule of facts filed, it is

19 difficult to not conclude that the only possible significance of the

20 witness's evidence is one indeed of one of tu quoque. Mr. Piletta-Zanin

21 enlightens us with a further development of the written schedule of facts

22 to tell us that the witness will say that he was on the front line, as I

23 understand it, and that he observed Muslim forces, using the term used by

24 Mr. Piletta-Zanin, accidentally hit civilians when they intended to hit

25 legitimate targets. One wonders how a witness, in the position described

Page 13170

1 by Mr. Piletta-Zanin, could come to such conclusions. He goes on to

2 anticipate the witness's evidence to be in effect that, therefore, the

3 same applied to gunners within the SRK, that quite clearly, apparently,

4 where they hit civilian targets, it was because of some inbuilt factor of

5 inaccuracy.

6 This raises a new issue as to relevance which, no doubt, we will

7 face at the appropriate time when such evidence is sought to be elicited,

8 namely, on what basis, more specifically, on what proper basis, could a

9 witness give such evidence, but perhaps that should wait until a later

10 time. Thank you, Mr. President.

11 JUDGE ORIE: Thank you, Mr. Ierace.

12 May I just ask you one question: We discussed a few examples of

13 very brief witness summaries. Would you have any specific problem with

14 one of the witnesses that is on the list for the first week?

15 MR. IERACE: Yes, Mr. President. I think that is covered in the

16 motion filed in which I analyzed, to some extent, the summaries of fact,

17 and came to the view to illustrate the point that there were only five

18 witnesses who, on the strength of the summaries of fact, challenged the

19 Prosecution case. The summaries of fact identify issues, and no more.

20 Some of those issues seem to lack any relevance. Other issues clearly

21 could have relevance, but because the summaries don't specify the facts or

22 summarise the facts on which the witness will give evidence, it is

23 impossible to tell.

24 JUDGE ORIE: Yes. If I might interrupt you. Of course, the

25 Chamber has read this and of course we have also compared it a bit with

Page 13171

1 the Prosecution witnesses summaries, and it appears that sometimes they

2 are very much focussing on facts. For example, if you are talking about

3 sniping incidents or shelling incidents we find that a lot of what we can

4 expect from them as factual information is clearly indicated. Of course,

5 the Chamber also noticed that there are not many witnesses, as far as we

6 can see that will testify about the specific circumstances of specific

7 shelling or sniping incidents, although it is indicated that sometimes the

8 testimony might have some relevance in respect of these incidents as well.

9 On the other hand, we also see that as far as the Prosecution witnesses

10 are concerned, sometimes we also find issues, rather than facts. For

11 example, utility supply, you will tell us about utility supply without

12 giving us any further details and what facts we should expect, but just

13 about the general issue of shelling. I think that we should keep in mind

14 that sometimes the subject matter of the testimony might make it more

15 difficult to give specific facts. On the other hand, and I am now looking

16 in the direction of the Defence, sometimes the issues are very broad and

17 very general where further details. For example, if I am just -- if you

18 are talking about utilities and you add to it that it is water and

19 electricity, then already gas is off and water and electricity are

20 specifically mentioned, so even on the issues you can be more specific. I

21 think we have to keep both in mind when working on the summaries because I

22 think some work still has to be done, since it would be too difficult for

23 the Prosecution to prepare for cross-examination.

24 On the other hand, the Prosecution should bear in mind that some

25 issues make the more difficult to come up with specific facts than others,

Page 13172

1 as we noticed that similar approach could be found in the Prosecution

2 witness list summaries.

3 MR. IERACE: Mr. President, the latter point first, while it is so

4 that some of the Prosecution 65 ter summaries were broad in that sense,

5 equally, I think it could fairly be said that many of them, if not most of

6 them, were quite detailed. In relation to the witnesses who are to be

7 called next week, perhaps it would be useful to focus on the first two or

8 three. In respect of the first witness, there is a lengthy summary of

9 facts, one long paragraph, which gives some background to the witness,

10 which, in itself, doesn't appear to be particularly relevant. And then we

11 have statements such as this: "He is familiar with the role of JNA,"

12 moving on "he was an eyewitness of mutual shelling and sniping," which

13 really doesn't assist anyone as to what it is the witness will say. Will

14 he talk about the issues which are in the indictment? Namely who was

15 responsible for the shelling and sniping of civilians, or indeed more

16 basically, whether that happened or not, we don't know. In the same

17 sentence, "he was an eyewitness to forced mobilisation, taking people on

18 forced labor," what is the relevance of that? The Prosecution states that

19 that is not relevant to the issues in the indictment.

20 And then finally we have this all encompassing sentence: "The

21 witness also knows the other relevant events which happened during the

22 conflict when he was in Sarajevo." That is of no assistance to the

23 Prosecution in preparing its cross-examination. The second witness to be

24 called that is Witness number 5, I think yes, number 5. Again, we don't

25 know what it is in effect that she really will say. We are told that she

Page 13173

1 will take about ABiH actions from their positions against the Grbavica

2 area, about ABiH sniping. What does that mean, if I could pause there?

3 Does that mean sniping against Serb civilians, it is sniping against Serb

4 forces, that is armed combatants or what?

5 The third witness - excuse me - is Witness number 2. We are told

6 that he was at the Kosevo clinic in Sarajevo. "The witness is familiar

7 with the circumstances in Sarajevo as well as the circumstances in Kosevo

8 clinic, immediately before the conflicts broke out and during the war

9 too." Again, that is of no assistance. Is he to talk about mobile

10 mortars which are alleged? Is he to talk about ABiH forces allegedly

11 targeting the hospital? We don't know. Reading on: "He was an

12 eyewitness of shelling and sniping on the warring side." On the face of it

13 that's of absolutely no relevance. It is not clear whether it's lawful of

14 shelling or sniping, in other words, of combatants or not.

15 So, Mr. President, perhaps if the Defence might be requested to

16 provide proper summaries of fact in relation to the first three witnesses,

17 that would serve two purposes, firstly, giving proper notice to the

18 Prosecution, and secondly, it might assist as process in developing an

19 appropriate understanding with the Defence as to what is required.

20 Mr. President, could I just go back to one earlier issue, briefly,

21 and that is, that whatever shortcomings there were in the 65 ter summaries

22 of the Prosecution has to be seen in the context that the Prosecution were

23 provided with statements and also supplemental information sheets. And

24 they, of course, were not provided to the Trial Chamber, as is required,

25 but there is no dispute that witness statements, in some cases, many

Page 13174

1 witness statements, as well as a supplemental information sheet were

2 provided.

3 Thank you, Mr. President.

4 JUDGE ORIE: Yes, you mean that the Defence was provided with the

5 statements and the supplemental information sheet.

6 Ms. Pilipovic, I would like to hear the response from the Defence.

7 MR. PILETTA-ZANIN: [Interpretation] Mr. President, response in

8 relation to supplemental information of what Mr. Ierace spoke about more

9 generally --

10 JUDGE ORIE: [Previous translation continues]... to make on the

11 issue of the witness list and the complaints about it and related issues.

12 MR. PILETTA-ZANIN: [Interpretation] Very well. Mr. President, I

13 have to tell you that we are rather surprised and this is just in the

14 first three cases, even if we just talk about the first case. If we look

15 at this witness, we can see that there are elements here that are very far

16 from being irrelevant. We know what he was, we know what his duties were,

17 what he did, and to use the expression that the Prosecution used, when we

18 are talking about "mutual shelling," it is precisely here with the problem

19 lies. We are being told that this is irrelevant, and I believe, and again

20 I am walking on uncharted ground, and I have to do this because it is

21 still depending on what says in your decision, but this is where the crux

22 of the problem lies. If there were mutual shellings, were there also

23 errors? Were there risks of errors? Perhaps this witness could say that

24 there was shelling coming from the other side, that there was an error,

25 that this was mistaken, and I believe that this is a very useful element,

Page 13175

1 if not necessary, for the Defence to state our position, which is just to

2 remind you is that there were possible firing near civilian targets and

3 that there were errors, not voluntary, not intentional.

4 Now, if we have a list of every shelling from such-and-such a

5 date, such-and-such an hour, this is really impossible. This is not the

6 same as the position of the Prosecution, which decided to have five

7 shelling incidents, and then more for the other incidents, sniping

8 incidents. So, really, the position of the Defence is different. The

9 principles are different. We had the Defence of principle, basing

10 ourselves on very specific incidents, cases, but it is absolutely

11 impossible that we can say every time on such-and-such a date, there was a

12 shelling and so on. The witnesses couldn't possibly remember, and to ask

13 such a degree of accuracy, I don't think that is conceivable. So I think

14 here, for this very first case we have been sufficiently detailed,

15 sufficiently precise, and the Prosecution knows what this is about. So

16 that the principle of the Defence has clearly been established. And if it

17 has not been understood, I can explain it again.

18 It may happen that there are other witnesses whom there is more

19 information necessary. Now, less information. Now, for instance, we can

20 say for this specific witness we wouldn't like to know precisely

21 such-and-such things, and this is the witness in such a case where perhaps

22 that would be more useful for everyone and more constructive. So this is

23 what I wanted to say, in principle and generally speaking.

24 JUDGE ORIE: Yes. May I ask you, the parties, if the Defence is

25 about to establish that errors were made in targeting of shells, is that

Page 13176

1 in dispute between the parties? I mean does the Prosecution, in general

2 terms, because we are talking in general terms now and not on a specific

3 incident, contest that such errors are made?

4 MR. IERACE: That is not contested by the Prosecution, Mr.

5 President.

6 JUDGE ORIE: Yes. Yes, Mr. Piletta-Zanin.

7 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I fear that

8 this will not take us forward. What we would like to know is what it says

9 in the decision, what you have said in the decision about this.

10 JUDGE ORIE: [Previous translation continues]... you will not find

11 anything in your decision about errors on targeting, any determination in

12 that respect of the Chamber.

13 MR. PILETTA-ZANIN: [Interpretation] Very well, Mr. President. But

14 I think that perhaps the Chamber spoke about the quantity of the firing

15 and perhaps about the outgoing and the incoming fire and the proportion

16 thereof.

17 JUDGE ORIE: Perhaps this is not the very moment to discuss these

18 kind of matters. I would like as a matter of fact, to sit the parties

19 together in respect of the first witnesses, because we have to develop a

20 practice which is -- which enables the Prosecution to cross-examine the

21 witness effectively and not to be with empty hands and be taken by

22 surprise. So perhaps I would like to invite the parties to do this very

23 early at this very moment, even without having a written statement, that

24 perhaps questions like you have raised today, for example -- I would agree

25 with you that a part of the statement which says he was an eyewitness

Page 13177












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 13178

1 between shelling and sniping between the warring sides, that of course,

2 could cover the whole armed conflict, without any further specification,

3 it might be very difficult for the Prosecution to respond -- to prepare

4 for cross-examination of such a witness.

5 So, therefore -- and the Chamber is also aware that the Defence,

6 of course had the witness statements given before and could confront the

7 witness with the earlier statements. So, therefore, I would like the

8 parties to see whether questions such as raised by the Prosecution today

9 could be resolved. If that is not possible, then I will take care that,

10 tomorrow, the Senior Legal Officer or one of the Judges will be there in

11 order to guide the parties as how to proceed in this respect. We can't

12 deal with that until next Thursday because the first witnesses will be

13 examined on from the 7th of October.

14 But the Chamber wants to prevent that we have to lose time later

15 on because the information was not sufficient to prepare for

16 cross-examination. So specifically for the first week, I would like the

17 parties to sit together and to see whether, even if it would be early,

18 additional information could be given so the Prosecution is better able to

19 prepare, if this would result in clashes rather than in fruitful

20 cooperation, than the Chamber is available to assist the parties.

21 MR. IERACE: Mr. President, just so I clearly understand that, you

22 anticipate that the parties should meet today, and if we can't --

23 JUDGE ORIE: Or tomorrow. Or tomorrow. And I expect the parties

24 that if they don't solve the problems, that they -- if the Chamber or a

25 Senior Legal Officer is able, then the parties should make themselves

Page 13179

1 available as well, even if it would be at extraordinary times. The

2 Chamber is determined to solve these kinds of problems, rather than to

3 spend more time on discussing them.

4 Yes. Is there any other issue the parties would like to raise at

5 this very moment?

6 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. There is

7 one matter, or even perhaps two. The first matter or the first question

8 that we should address is the assistance that the Defence would like to

9 have from your Chamber, in a sense that the Defence wanted to call as

10 witnesses a number of people from the UN family. These people knew the

11 situation. They were high-ranking military personnel and the Defence has

12 not been able to find the addresses of these persons, who were not able to

13 contact them directly and what will certainly come up is the assistance of

14 your Chamber that the Defence will need. Which is a -- this is a

15 practical question so that we can contact these witnesses, and to summon

16 them, if that is necessary.

17 JUDGE ORIE: Has the Defence already been in contact with these

18 witnesses? Because you say you don't have the addresses. I am a bit

19 surprised.

20 MR. PILETTA-ZANIN: [Interpretation] I anticipated your question.

21 We don't have their current addresses and we did think that if we try to

22 take steps in the general way, to ask in New York in the UN HQ, they would

23 have responded in God knows how many months, if they would respond at all.

24 So that is why we didn't do this. So really, we don't know how to get in

25 touch with these people, and we thought it would be much better to state

Page 13180

1 the problem now so that the Chamber, who probably has more means at their

2 disposal than the Defence, that perhaps maybe you can assist us in this.

3 JUDGE ORIE: Have you interviewed them already? Have you been in

4 contact with them already? Yes, then --

5 MR. PILETTA-ZANIN: [Interpretation] No.

6 JUDGE ORIE: -- I may, but perhaps we should further consider

7 this. Then it is quite surprising that you are asking for protective

8 measures when you have not yet even met with these witnesses. That raises

9 some other issues as well in respect of protective measures, but we will

10 deal with that. The, I think, that the Chamber will certainly assist you

11 if there are witnesses that can give relevant information, and you have

12 difficulties in finding them, then, of course, the Chamber will assist as

13 good as it can. And I take it that the Prosecution, that might have

14 information about the whereabouts of the witnesses as well would assist

15 the Defence as well.

16 MR. IERACE: Yes, Mr. President, we would be happy to provide

17 information, if we have it. Although I note that Mr. Piletta-Zanin has

18 described these people as military personnel. I can tell you,

19 Mr. President, that what we would do in that situation is simply contact

20 the relevant military, and we haven't had a problem in the past in using

21 that avenue.

22 JUDGE ORIE: Yes. So that is even, as far as the methodology is

23 concerned, you got the first assistance already of the Prosecution,

24 Mr. Piletta-Zanin. Of course, if you asked for the assistance of the

25 Chamber, it is important for the Chamber to note what efforts you have

Page 13181

1 made up to that moment, and what route you tried to follow in order to get

2 the information you need.

3 But, in general terms, you can rely upon the Chamber to assist you

4 in getting witnesses here that are relevant for your case. You said you

5 had one or two questions, but please also keep in mind that it might need

6 some time. So, therefore, the sooner you report what you have done in

7 order to reach these witnesses, and what assistance you would seek, the

8 better the Chamber and perhaps also the Prosecution would be able to

9 assist you.

10 This was one issue. Is there another issue you would like to

11 raise?

12 MR. PILETTA-ZANIN: [Interpretation] Yes, there was a second issue,

13 but perhaps this is a premature moment to speak about it. In order to

14 gain time, we are going to raise it at a later stage, if there is need for

15 it. Thank you.

16 [Trial Chamber confers]

17 JUDGE ORIE: About the safe conduct, no safe conduct is required

18 for any of the witnesses to appear next week or is there? Because the

19 practical part of safe conduct is not -- it is a complicated matter,

20 especially also in communication with all kind of authorities. So not

21 even predicting what the decision of the Chamber will be, but I just

22 wanted to be sure that we are not facing any problems for next week. Yes.

23 So then we have no other items on our agenda. The decision -- yes,

24 Ms. Pilipovic.

25 MS. PILIPOVIC: [Interpretation] Your Honour, the Defence would

Page 13182

1 just like to ask the Chamber, if you can give us the information or are we

2 going to get that from the SLO about the schedule of the trial? Is it

3 going to be the usual, one week a.m., one week p.m.?

4 JUDGE ORIE: Yes, as far as I can see, we have a similar -- but

5 the court calendar is prepared by the Registry, and is available, I think,

6 up until December. So I think next week we start at the p.m. sessions.

7 So we would start at a quarter past 2.00. But this information is

8 available for you, yes, even holidays and court maintenance, everything is

9 on there. So perhaps a copy of the court calendar for the next month

10 could be provided to you so that you are well informed.

11 Yes. Then I thank the parties for their cooperation. I think all

12 those who assisted us both in the technical booth and the interpreters for

13 their assistance. We will adjourn. And the decision of the Chamber on

14 the 98 bis motion will be filed today and the -- we will adjourn until

15 next Monday at a quarter past 2.00 in the same courtroom.

16 --- Whereupon the hearing adjourned at

17 11.50 a.m., to be reconvened on Monday,

18 the 7th day of October, 2002, at 2.15 p.m.