1 Thursday, 11 March 2004
2 [Open session]
3 --- Upon commencing at 2.19 p.m.
4 [The accused entered court]
5 JUDGE ANTONETTI: [Interpretation] Very well. Mr. Registrar, could
6 you call the case, please.
7 THE REGISTRAR: Case Number IT-01-47-T, The Prosecutor versus
8 Enver Hadzihasanovic and Amir Kubura.
9 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar. Could
10 we have the appearances for the Prosecution.
11 MR. WITHOPF: Good afternoon, Your Honours. Good afternoon,
12 counsel. For the Prosecution, Daryl Mundis, Ekkehard Withopf, and
13 Ruth Karper, the case manager.
14 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Withopf. Then
15 the appearances for the Defence.
16 MS. RESIDOVIC: [Interpretation] Good day, Mr. President, good day,
17 Your Honours. On behalf of General Hadzihasanovic, Edina Residovic,
18 counsel; Stephane Bourgon, co-counsel; and Mirna Milanovic, our legal
19 assistant. Thank you.
20 JUDGE ANTONETTI: [Interpretation] Thank you.
21 MR. IBRISIMOVIC: [Interpretation] Good day, Your Honours. On
22 behalf of Mr. Kubura, Rodney Dixon, Fahrudin Ibrisimovic, and Mr. Mulalic,
23 our legal assistant.
24 JUDGE ANTONETTI: [Interpretation] Thank you.
25 The Trial Chamber would like to greet everyone present in the
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 courtroom, the Prosecution, the Defence, the accused, and everyone else in
2 the courtroom, in particular the interpreters and the court reporter.
3 I think we have one witness for today, and it seems that a
4 difficulty arose at the very last minute. So I'll ask the Prosecution to
5 take the floor now.
6 MR. WITHOPF: Mr. President, Your Honours, can we please go into
7 private session.
8 JUDGE ANTONETTI: [Interpretation] Very well. We'll go into
9 private session.
10 [Private session]
11 [Open session]
12 THE REGISTRAR: Your Honours, we are back in open session.
13 JUDGE ANTONETTI: [Interpretation] Now that we are in open session,
14 we said that we should rule on the subject of tendering the sketches into
15 evidence and tendering two photographs into evidence. The Trial Chamber
16 has deliberated and would now like to inform you orally of the following:
17 On the 5th of March 2004, when the Witness ZI was heard, the Prosecution
18 asked the Trial Chamber to ask into evidence certain documents which had
19 to do with the destruction of villages and the destruction of houses and
20 villages and places. This is mentioned in paragraph 44 of the indictment.
21 The Defence raised an objection to this and claimed that the sketches
22 attached to the witness's written statement and the other sketches
23 presented by the Prosecution were not reliable. They claimed that the
24 sketches were established on the basis of information that the source of
25 which was not known and was based on hearsay. As far as the period is
1 concerned, when these houses were destroyed, this is also questionable,
2 and the Defence claims that these documents don't have any probative
4 In addition, the Defence pointed out that the witness who
5 testified had received instruction from an investigator from the Tribunal,
6 and this investigator wasn't present and could not confirm the
7 instructions he had given to the witness. In addition, the Defence stated
8 that the numbers mentioned on the documents were problematic in that these
9 numbers referred to the sketches and the photographs added nothing to the
10 sketches with regard to the responsibility of the accused. In conclusion,
11 the Defence stated that these sketches and photographs should not be
12 admitted into evidence as their probative value was outweighed by the need
13 to have a fair trial.
14 The other Defence team also objected to having these documents
15 tendered into evidence and claimed that the documents couldn't be admitted
16 into evidence as they had been presented after the cross-examination
17 conducted by the Defence. With regard to these comments made by the
18 Defence, the Prosecution insisted yet again that these documents should be
19 admitted into evidence.
20 The Trial Chamber notes that the witness's written statement and
21 the investigator's sketches, the sketches of the investigator from the
22 Tribunal attached to this statement, were admitted under 92 bis of the
23 Rules. And the Defence did not raise any objections to this. Thus,
24 everything attached to the written statement was admitted into evidence.
25 However, the sketches that have to do with Malinje and Guca Gora were not
1 admitted into evidence. These sketches were only produced in the course
2 of the hearing on the 5th of March. The Trial Chamber states that the
3 written statement of the witness and the sketches made by the investigator
4 from the Tribunal are based on declarations made by -- on statements made
5 by other persons. The Trial Chamber is aware of the fact that the
6 procedure followed by the investigator from the Tribunal could raise a
7 certain number of questions. And an answer to these questions is not at
8 all clear.
9 The Trial Chamber believes that at this stage of the trial, it is
10 not yet the right time to decide whether the exhibits presented by the
11 Prosecution on the 5th of March should be admitted into evidence pursuant
12 to 89(C), Rule 89(C), or excluded pursuant to Rule 89(D). As a result,
13 the Trial Chamber would like to wait until all the witnesses have
14 testified about the destruction of houses in the places mentioned in the
15 indictment. And only after they have testified will the Trial Chamber
16 render a definitive decision with regard to these documents.
17 As you know, these documents have already been marked for
18 identification. So we will rule on this matter once these witnesses have
19 been heard.
20 The second issue I would like to raise, since we have some time,
21 concerns the fact that the Prosecution has forwarded to us its
22 consolidated list of exhibits as required by the Trial Chamber. These
23 documents dated the 10th of March have been presented to us. I think that
24 the Defence has also been provided with copies. It constitutes a list of
25 exhibits. In the first part of the document, there are 947 documents. We
1 have an Annex B which also includes about 15 documents. There's a number
2 from the OTP on the documents. There's a PTW1 number in the third column.
3 There's an ERN number. There's a date. We have a description of the
4 document concerned, the source of the document, and other references. And
5 this is important now. We also have a column, and this is something we
6 requested, listing the documents provided to the expert witness. For
7 example, on the first page of this document, there are ten documents, the
8 documents from 2 to 10 on the list concerning the expert witness. It says
9 "yes" there, so it means that documents were provided to the expert
11 Having received the document, I counted a number of yeses. There
12 were 370, which means that there are between 370 and 380 documents which
13 were provided to the expert witness. And this will probably raise the
14 question for the Prosecution about the tendering into evidence of these
15 documents. If there are 380 documents, we might have a problem. One way
16 of proceeding which would be efficient for the Defence and for the
17 Trial Chamber as well could be to do as follows: In the written statement
18 of the expert witness, in the footnote, he could refer to the documents.
19 He could indicate with regard to -- in relation to his written statement
20 that such and such a paragraph corresponds to a certain document.
21 And if I have understood this correctly, the Defence could conduct
22 its cross-examination. And while conducting its cross-examination, and I
23 think its cross-examination would follow a logical order, they could refer
24 to Document 8, 5, 22, et cetera, and that would make things more clear.
25 At the conclusion of the cross-examination, the Prosecution could make an
1 official request as all these documents will have been examined in the
2 course of the hearing of the expert witness. The Prosecution can at that
3 moment request that these documents be tendered into evidence. The
4 documents that are referred to in the document in question, for example,
5 we could ask for Document Number 234, et cetera, to be tendered into
6 evidence, and then we could identify the documents concerned. This would
7 enable us to save time. Because otherwise, I don't see how the hearing of
8 this witness, which will take place over two or three days, I don't see
9 how we could examine these 380 documents one by one. Why not? This is
10 something that is possible, but if that is the case, if that is how we
11 decide to proceed, we should find a means that would allow us to have
12 these documents admitted into evidence if no objections are raised.
13 But as the Defence is conducting its cross-examination, they might
14 be able to say they contest such and such a document for such and such a
15 reason. So then it would be a lot simpler. They might say they don't
16 contest Document Number 10, which is the Official Gazette of the Republic
17 of Bosnia-Herzegovina, for example. So that is one way of proceeding.
18 Because the consolidated list, such as it is at the moment, consists of
19 947 documents. And out of the 947 documents, there will be at least
20 two-thirds that could be tendered into evidence when an expert witness is
21 heard. At this stage, could Mr. Withopf provide us with some information
22 regarding the manner in which he would like to proceed in future, unless
23 he is still thinking about this matter, which would be quite
25 MR. WITHOPF: Mr. President, Your Honours, the Prosecution was
1 under the impression that the Chamber has already addressed this issue in
2 its oral order of 24th of February in which the Prosecution was given a
3 deadline to file its consolidated exhibit list. And if I'm not wrong,
4 Defence was also given a deadline to respond to the Prosecution's
5 consolidated exhibit list by the 25th of March 2004, indicating as to
6 whether they would raise any objections to the documents, basically
7 document by document.
8 If my recollection isn't wrong, I think the Trial Chamber then
9 decided that by 8 of April, that's the Thursday prior to Easter, the
10 Chamber would then decide, and at this day, the documents will be given
11 exhibit numbers. It's the understanding of the Prosecution that the
12 documents that were given to the Prosecution's military expert,
13 General Reinhardt, are included in the consolidated exhibit list or
14 implies that a decision will be made by the Trial Chamber on 8 of April
15 2004 at the very latest. The military expert is scheduled for the 13th,
16 the 14th, and if necessary, for the 20th of May to testify here before
17 this Tribunal. And the Prosecution was to date working on the basis that
18 this is the procedure that has been implied.
19 If, however, the Chamber wishes to now suggest to follow a
20 different procedure or a slightly different procedure, the Prosecution
21 respectfully submits that we wish to think about in order to figure out
22 the advantages and disadvantages of such a procedure. Thank you very
24 JUDGE ANTONETTI: [Interpretation] I shall give the floor to the
25 Defence in a moment. It is true that we did indicate that by the 8th of
1 April, if there is no challenge on the part of the Defence, we might
2 officially admit into evidence certain documents which do not provoke
3 problems for the Defence. It is true that out of the 957 documents, there
4 are documents which theoretically should raise no problems to the extent
5 to which they are documents which are not contested. By way of example,
6 number 702, which is the declaration of a state of war by
7 President Izetbegovic dated the 20th of June 1992, this is a document
8 which obviously will not cause any problems. So that is the type of
9 document I am referring to.
10 But in the list, there are documents which were given to the
11 expert witness which will certainly be discussed by the Defence. And it
12 seems to me that it is impossible to admit documents on the 8th of April
13 which will be challenged in the month of May. And that is why when we
14 said the 8th of April one might admit documents which are not objected to
15 by the Defence, and that is why the Defence was given a deadline for the
16 25th of March for their objections. However, after that, there will be
17 other documents - for example, there's the Official Gazette of Bosnia and
18 Herzegovina - which will also cause no problems. However, it is up to the
19 Defence to tell us which of those documents.
20 And once we confront the list with the response of the Defence,
21 then we can know which can be admitted by the 8th of April. However,
22 documents which will be referred to by the expert witness and referred to
23 in the cross-examination cannot obviously be admitted on the 8th of April.
24 That is quite obvious. That is why it would be better to address the
25 problem so everyone is quite clear in their mind. We cannot admit 947
1 documents, which means thousands of pages, without them having been
2 examined by the Defence, except as regards those that pose no problems and
3 which will not be objected to by the Defence.
4 On the other hand, there are certain documents which will be
5 referred to during the testimony of the witness. And in that case, after
6 the testimony of the witness, the Prosecution can ask for the admission of
7 certain documents referred to by the witness during the cross-examination,
8 during the questions of the Judges, and during the re-examination, which
9 seems to me to be more logical. However, out of the 947 documents, there
10 are documents that were not communicated to the expert witness and that
11 relate to testimony of people who will be heard after the 19th of March.
12 So you will normally produce them during the hearing of the witnesses on
13 the programme after the 19th of March.
14 So out of the 947 documents, there will be some that will be
15 admitted before the 8th of April, then on the 8th of April, also those
16 documents that are not challenged by the Defence, whereas other documents
17 which may be subject to cross-examination will be admitted in due course
18 during the month of May when we hear the witness. That would be
19 schematically the procedure so as to avoid people being drowned amongst
20 thousands of pages. And I think that this procedure is the most
21 reasonable one for everyone.
22 However, I would like to hear the position of the Defence who will
23 certainly take a position regarding the documents before the 25th of
24 March. Mr. Bourgon.
25 MR. BOURGON: [Interpretation] Your Honours, Mr. President, the
1 Defence fully agrees with the procedure that has just been explained by
2 the Chamber. Nevertheless, Mr. President, we feel it necessary to make a
3 distinction between the admissibility of documents and the testimony of
4 experts in this Chamber. Regarding the admissibility of documents, as
5 requested by the Chamber, we are going to produce our response by the 25th
6 of March with our comments regarding each of the exhibits that the
7 Prosecution wishes to tender. According to what we understand from the
8 decision of the Chamber, as you have explained, on the 8th of April, these
9 documents will be admitted definitively, if there's no objection. As for
10 others, there will have to be more discussion before those documents are
12 Now I come to the second point, that is, the testimony of the
13 expert. The opinion of the Defence is that if a document has already been
14 admitted, then of course that expert can use that document during his
15 testimony. If a document hasn't been admitted, and during the expert
16 testimony, in the opinion of the Defence, he can still use that document,
17 but the expert cannot be used to have a document admitted. Because the
18 opinion of an expert will rely on a document, but the expert, according to
19 the Defence at least, will not be able to provide information either
20 regarding the source, the reliability, or the role played by that document
21 within the events that took place in Bosnia-Herzegovina.
22 Therefore, in the opinion of the Defence, the expert witness can
23 use as many documents as he wishes. However, if he's using a document
24 that hasn't been admitted, it is up to the Prosecution to take the
25 necessary steps to have that document admitted. That is a procedure that
1 was underlined by the Trial Chamber in the Milosevic case when it was said
2 that an expert cannot be used to have a document admitted. However, an
3 expert may express an opinion on any document, but one has to see what the
4 probative value is of the opinion of the expert witness.
5 Once the question of documents has been regulated, I would like to
6 address the Chamber once again regarding the date for the testimony of the
7 expert witness, which is a discussion that I already had with my learned
8 friend from the Prosecution. And we agreed that we could address the
9 Chamber to air our views on the matter.
10 JUDGE ANTONETTI: [Interpretation] Regarding the date of the
11 testimony of the expert witness, the Prosecution has planned it for the
12 month of May. But maybe they can clarify that point.
13 Have the other Defence counsel any remarks to make regarding
14 documents and the procedure suggested? Mr. Dixon.
15 MR. DIXON: Yes, thank you, Your Honours. We, too, fully
16 appreciate the distinction that Your Honours have made between documents
17 that will be admitted where there is no objection on the 8th of April and
18 those where there is objection where further consideration will have to be
19 given to those documents. The only point we would make is that in respect
20 to those documents that are contested or where there is some controversy
21 surrounding the documents, we would request Your Honours to follow the
22 procedure that you have up until now in admitting documents, which is to
23 require a witness who can identify the document or in some way comment on
24 the document, for that to be a requirement in order for the document to be
25 admitted. Which allows both parties, Prosecution and Defence, and of
1 course Your Honours as well, to ask the witness about the document in
2 order to clarify its authenticity and reliability, and ultimately to
3 assist Your Honours in determining the probative value to be attached to
4 those documents.
5 So that would be our request, that where there are contested
6 documents, that additional witnesses may need to be called in order to
7 clarify whether those documents can be admitted. But that can all take
8 place after April, in May or before the Prosecution closes its case.
9 Thank you, Your Honours.
10 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Dixon.
11 Mr. Withopf.
12 MR. WITHOPF: In respect to a number of issues which have been
13 raised by my learned friends on the Defence side, the source of the
14 documents the Prosecution's military expert has been provided with is, as
15 the Defence knows, in most instances, the Sarajevo collection. These are
16 official documents with seals on them. And the Prosecution understands
17 that the Trial Chamber, some time ago, made a decision that such documents
18 are automatically admitted. The Prosecution will certainly be in a
19 position to inform the Trial Chamber about the source of such documents.
20 It's also the understanding of the Prosecution that the decision
21 of the 24th of February made a distinction between the procedure to be
22 followed now and until, and if I'm not wrong, I think the decision said
23 until the 19th of April. This is the procedure which is followed and
24 complied with currently. After the 19th of April, there will be a
25 different procedure to be followed by both parties.
1 In respect to the second issue that has been raised by my learned
2 friend, the scheduling of the testimony of General Dr. Reinhardt, the
3 general is scheduled for the 13th and the 14th of May. And if necessary,
4 the general can also be made available on the 20th of May. The
5 Prosecution anticipates that the examination-in-chief of the General will
6 last about an hour, certainly not significantly longer. That would imply
7 that the Defence has basically two full days, and if necessary, the 20th
8 of May as a third full day to cross-examine the general. Of course, the
9 Prosecution will have his right to re-examine the general. In the view of
10 the Prosecution, the three days, as indicated, should be sufficient for
11 the testimony of the Prosecution's military expert.
12 JUDGE ANTONETTI: [Interpretation] You have envisaged that the
13 expert witness should come to testify on the 13th and 14th of May, and if
14 necessary on the 20th of May. I already see a problem there, to the
15 extent that 13th and 14th are Thursday and Friday. The Chamber did insist
16 on a number of occasions that witnesses which require several hours or
17 several days of examination should be planned for Monday. That would be
18 better. You have scheduled him for Thursday and Friday, which means that
19 it will not be over on the 14th, which means that we have to continue.
20 And instead of continuing at the beginning of the week, you postpone it to
21 the 20th of May, which means there will be an interruption, which is
22 absolutely not logical. And this does cause problems. And I'm absolutely
23 against this witness not being heard in continuation, without
25 It would be better for him to start on a Monday and Tuesday, if
1 necessary a Wednesday, even Thursday, rather than interrupt the testimony
2 in this way, which is not judicially beneficial because it entails wasting
3 of energy. And it is better for a witness to testify in continuity.
4 Therefore, your suggestion for the 13th and 14th of May at this stage does
5 not meet with our approval. Two days will not be sufficient in view of
6 the fact that there are more than 300 documents in support of that
7 testimony. And those documents may entail several hours of discussion,
8 questions and answers about them.
9 Therefore, these are inconveniences that can be overcome, and you
10 have told us that the examination-in-chief will not take more than an
11 hour. But I fear that the cross-examination could take much, much longer.
12 That is as regards the scheduling of the testimony of this expert witness.
13 Regarding the rest that has been said about the tendering of
14 documents, we have actually said that up until the 19th of April,
15 documents will be admitted as the witnesses appear. If on the 8th of
16 April, there's consensus on documents, then those documents can be
17 admitted and given an exhibit number. However, documents which will be
18 contested by the Defence, as Mr. Dixon has stated, need to be tendered
19 into evidence through another witness, which is the normal procedure. So
20 I call the attention of both parties to this matter because in the weeks
21 to come, the testimony of witnesses will be based on documents, and it is
22 very important that we resolve the problem to avoid a waste of time and
23 wasting of energy. That is why the Defence has until the 25th of March,
24 the time to evaluate these documents, and certainly there will be some
25 that will not provoke comments or objections, whereas there will also be
1 others which will raise questions, both on the part of the Defence and the
2 Prosecution and the Judges. So that is regarding the question of
4 Mr. Withopf, I give you the floor again.
5 MR. WITHOPF: Mr. President, Your Honours, in respect to the
6 scheduling of the Prosecution's military expert, the Prosecution is well
7 aware that it may be disruptive if and when the Prosecution's military
8 expert is not testifying on a continuing basis. However,
9 General Dr. Reinhardt also retired, is an extremely busy person who has
10 other commitments as well, and these other issues and these other
11 commitments, based on the nature of such commitments, are planned well in
12 advance. And these other commitments include travelling abroad and
13 includes travelling abroad following wishes of the German government as
14 well. The military expert has early on been informed that it would be
15 beneficial for his testimony that -- and that it would be better if he
16 would be available for at least three days in a row. However,
17 unfortunately, he's facing serious problems to make himself available for
18 three days in a row.
19 The Prosecution is, however, very well prepared to discuss this
20 issue again with the military expert with the aim to make him available
21 for longer than two days in a row. The Prosecution would, however, also
22 appreciate if Defence could indicate for how long, for how many days they
23 wish to cross-examine the military expert. The Prosecution has noted in
24 the past, although the Prosecution repeatedly invited Defence to at the
25 earliest stage to indicate for how long they wish to examine a witness,
1 the Prosecution, unfortunately, never got an answer. The Prosecution
2 understands that the scope or the time Defence need for the
3 cross-examination of a witness depends obviously on the
4 examination-in-chief; however, the time the Prosecution needs for the
5 examination-in-chief is indicated on the Rule 65 ter summaries. Defence
6 has the witness statements which do form the basis -- which regularly do
7 form the basis for the examination-in-chief of a witness. Based on this,
8 it's certainly not too difficult for Defence, if they would be prepared to
9 do so, to inform the Prosecution up-front how much time they would need.
10 The situation is even worse in respect to the military expert.
11 The written expert opinion of the military expert is known to the Defence
12 since months. Taking into account or even -- taking into account the
13 amendments which have to be made by the military expert, the scope of the
14 military expert's written opinion will be limited. And based on the
15 decision of the Trial Chamber, both parties know exactly what the scope of
16 the military expert's written opinion will be. Therefore, in order to
17 assist the Trial Chamber, and in order to assist the Prosecution, who is
18 not planning the military expert for May only, but also other witnesses;
19 namely, international witnesses who are dispersed all over the world,
20 literally all over the world and it's not that simple to bring
21 international witnesses. Most of them are in very high-ranking positions,
22 also having other commitments in addition to the very important duty to
23 appear before this Trial Chamber. Therefore, it would be very beneficial
24 if Defence could, at the earliest opportunity, indicate for how long they
25 intend to cross-examine the Prosecution's military expert.
1 It's not advisable that the Prosecution gets in touch with the
2 military expert and tells him that we need you three days in a row, taking
3 into account his very busy agenda, and then at the 11th hour, the Defence,
4 who knows exactly which documents have been made available to the
5 Prosecution's military expert, at the 11th hour, the Defence decides to
6 cross-examine him for four or five days, or even longer. The Prosecution
7 needs to know prior to discussing this issue with its military expert. I
8 really invite the Defence to indicate now and to indicate as far as
9 possible what the time frame we are talking about. Only after we get to
10 know, we can contact the military expert in that respect and inform him
11 about the wish of the Trial Chamber to have him available for a number of
12 consecutive days. Thank you very much.
13 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Withopf, for your
14 clarifications. As everyone knows, a testimony in court has prevalence
15 over all other professional engagements. The witness is at the disposal
16 of justice, and not justice at the disposal of the witness. This is a
17 principle that applies in all the countries of the world. And in the
18 past, within this jurisdiction, very important witnesses, in spite of
19 their engagements, have come to testify. Therefore, there's no reason for
20 this expert witness to be a special case in relation to other witnesses.
21 He will testify. However, on the other hand, you are quite right. It
22 would be desirable to have at least some indication, without any
23 particular precision, how long the cross-examination will take. Maybe the
24 Defence hasn't yet had time to consider this question thoroughly.
25 However, as the written report consists of some dozen pages, then I assume
1 it is possible to make some sort of estimate regarding the
3 Could the Defence at this stage, without going into any detail, in
4 a very approximate manner tell us: "we will need one day, two days, three
5 days, four days"? I don't know. And I'm asking the Defence counsel for
6 their opinion.
7 MR. BOURGON: [Interpretation] Thank you, Mr. President. With your
8 permission, Mr. President, I would first like to respond to the remark
9 made by my friend from the Prosecution that we have not informed him about
10 the duration of cross-examinations in general. We have in all the briefs
11 addressed to the Chamber or the Prosecution, in all these documents, there
12 is a note saying that we haven't informed the Prosecution about this. I
13 wish to underline that we have, ever since the beginning. We have
14 regularly informed the Prosecution that the cross-examination by the
15 Defence will never exceed the planned duration of the examination-in-chief
16 by the Prosecution. And if necessary, we will inform them if there is any
17 deviation from this principle.
18 I pass on immediately to the question of the expert witness
19 testimony. We believe, Mr. President, that the amendments need to be
20 made -- may change the very nature, the very method in which the expert is
21 going to convey his opinion. And there's a risk of the testimony
22 changing. And that is why it is difficult for us to state at this point
23 in time how long we will take. We wish to inform the Chamber that we are
24 working hard on the matter, and we believe that the Defence, specifically
25 the Defence of General Hadzihasanovic, will need ten hours to
1 cross-examine the expert witness of the Prosecution. We are not aware of
2 the amount of time that will be required by the other Defence team.
3 However, for General Hadzihasanovic's Defence, we envisage ten hours at
4 this stage. This could change once we receive any additional information.
5 It is also important for us, Mr. President, the point that you
6 made regarding the interruption. We fully agree with you that any
7 interruption in testimony would not be beneficial for the Prosecution or
8 for the Defence or for the Chamber. And it will not be in the interests
9 of justice. I also think, Mr. President, that when talking about expert
10 witnesses, we're talking about witnesses who are remunerated, who receive
11 considerable sums of money to prepare their reports. And now, they refer
12 to professional obligations as preventing them from appearing for three
13 days in court. We are quite ready to discuss the dates, but we would like
14 to be able to have the possibility of cross-examining without
16 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Bourgon. I now
17 give the floor to the other Defence counsel. We have an indication of ten
18 hours, which is roughly two days.
19 Mr. Dixon.
20 MR. DIXON: Thank you, Your Honours. Our general and approximate
21 estimation for cross-examination would be one day. We are looking at four
22 to five hours, which is approximately one day. That is an estimate which
23 we made without having seen the final report and without having looked at
24 further evidence that might be led before the expert attends, also taking
25 into account what documents may or may not be admitted. But that would be
1 our general estimate at this stage, a day for the Defence for Mr. Kubura,
2 Your Honour. Thank you.
3 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Dixon.
4 If I use my calculator and add ten hours to four, five hours,
5 that's 15 hours. If we add the breaks to that, that adds up to about
6 three days. The hearing will last for at least three days. But a new
7 element that has appeared for the first time is that the Defence has told
8 us that this witness is a paid witness. He will be remunerated. And
9 given that he won't be testifying as an act of charity, it's to be
10 expected that he could testify a number of days in succession. That seems
11 to be quite normal and understandable to me.
12 The Defence has told us that their cross-examination would take
13 ten hours for one team and five hours for the other team. So that adds up
14 to at least three days. Mr. Withopf, you may take the floor again because
15 he has an answer to all of these questions.
16 MR. WITHOPF: Sometimes I would be very happy to have the answer
17 to all questions, Mr. President. However, the 15 hours amount basically
18 to four court days, taken into account that the net time is three hours
19 and 50 we are sitting each day. Taking into account a 15-hour
20 cross-examination of the military expert, and taking into account that
21 such a long cross-examination will certainly give rise for the
22 Trial Chamber to ask questions and will certainly give rise for the
23 Prosecution to conduct a longer re-examination, I think realistically we
24 are talking about five to six or even seven days, consecutive days.
25 Again, the Prosecution will inform the military expert
1 accordingly, and we will make all efforts to make the expert available,
2 knowing that the expert will face substantial and significant
3 difficulties. But the Prosecution will certainly inform him that it would
4 be very beneficial and that it certainly does fall within the scope of his
5 duties to make himself available for such a period of time.
6 Again, realistically, five days appears, based on the information
7 we got today, the absolute minimum, and I think it will be even six or
8 seven days. There may be objections. There may be the need for the
9 Chamber to deliberate on objections. I think it will certainly not be
10 less than six to seven days in a row.
11 JUDGE ANTONETTI: [Interpretation] Yes. That was the
12 Trial Chamber's estimate when we had a look at the list. So it will
13 amount to a week. That's why it would be very useful if we could start
14 the hearing on Monday, and then work continually until Friday, work
15 continually with the witness. Because among the 1.000 exhibits, he's
16 dealt with at least a third of the documents in his work. So a third of
17 the documents could be referred to in the course of this testimony,
18 although he could also refer to other documents. But this witness might
19 be referring to 30 per cent of the documents mentioned on the list, so
20 that's why we should expect the hearing to last for at least one week. So
21 I think that he should be informed of the fact that this matter has been
22 debated. The Trial Chamber believes that he should start on a Monday. He
23 has a lot of time to take all measures to make himself available by May.
24 If he were appearing as a witness who wasn't remunerated, it would be
25 different. But that's not the case. But in any case, testifying before a
1 court takes precedence over all other matters. But we will have his
2 written report, which will be amended in the light of the decision. The
3 Defence will also state its position, and everyone will be in a position
4 to assess this issue more clearly. But you should count on allocating one
5 week in May for this expert witness.
6 Are there any other issues that you would like to raise? Since we
7 have sufficient time, are there any issues that the Defence would like to
8 raise? If not -- yes, Mr. Bourgon.
9 MR. BOURGON: [Interpretation] Mr. President, the Defence would
10 like to raise one issue that concerns the videolink witnesses. We haven't
11 any experience of videolink testimony, and we would appreciate an
12 explanation from the Prosecution about the manner in which the testimony
13 will proceed because our next hearings will be hearings of witnesses via
14 videolink. Thank you, Mr. President.
15 JUDGE ANTONETTI: [Interpretation] Very well. We will let
16 Mr. Withopf take the floor. The Trial Chamber has already thought about
17 this matter. When we have a videolink witness, the witness isn't here, he
18 is somewhere else. It amounts to the same as if the witness were present.
19 But Mr. Withopf will certainly inform everyone about this matter.
20 Mr. Withopf, with regard to the videolink witnesses, could you
21 deal with the concerns that the Defence have expressed and could you
22 reassure them.
23 MR. WITHOPF: Having had the experience of a three-day videolink
24 testimony, and this testimony went extremely well in the sense of the
25 technical equipment and in the sense of the quality of how the witness's
1 testimony arrived here in The Hague, I personally, after half an hour,
2 forgot that the witness is not in front of us here, 3 metres away, but
3 2.000 kilometres away.
4 Otherwise, since the Registry is in charge of all technical
5 issues, I would recommend that my learned friends from the Defence contact
6 the person, the Registrar's person, Mrs. Kelly Philpott, who has been
7 assigned to take care of it, and Mrs. Philpott will certainly be very well
8 prepared to answer all questions that may be put to her by the Defence.
9 JUDGE ANTONETTI: [Interpretation] Very well. I have a minor
10 question that concerns the technical measures. Since the witness won't be
11 here, the witness has to make a solemn declaration. And normally, there
12 should be a representative of the Registry present, the person who acts as
13 the usher. At the site, the usher will provide the witness with the text
14 that the witness has to read to make the solemn declaration. Mr. Withopf,
15 was this part of your three-day experience?
16 MR. WITHOPF: Yes, it was the first 2 minutes of the three days'
17 experience. The Registrar's person will actually fly down to the place
18 where the videolink takes place, and the Registrar person will be present
19 and will make available the text of the solemn declaration to the witness.
20 JUDGE ANTONETTI: [Interpretation] Very well. I think Mr. Bourgon
21 has been reassured, and everything should proceed very smoothly.
22 Are there any other issues to raise? No other issues to raise.
23 In that case, I would like to thank everyone for having come here. And I
24 will see everyone next week, on Monday, at 2.15 in the afternoon.
25 --- Whereupon the hearing adjourned at 3.23 p.m.,
1 to be reconvened on Monday, the 15th day of March,
2 2004, at 2.15 p.m.