1 Monday, 12 July 2004

2 [Open session]

3 --- Upon commencing at 2.20 p.m.

4 [The accused entered court]

5 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, can you call the

6 case, please.

7 THE REGISTRAR: [Interpretation] Mr. President, Case Number

8 IT-01-47-T, The Prosecutor versus Enver Hadzihasanovic and Amir Kubura.

9 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar.

10 Can we have the appearances for the Prosecution, please, though,

11 of course we know the lady.

12 MS. BENJAMIN: Good afternoon, Mr. President, Your Honours. For

13 the Prosecution, Tecla Henry-Benjamin, and Andres Vatter, case manager.

14 Thank you.

15 JUDGE ANTONETTI: [Interpretation] Thank you. And now for the

16 Defence counsel who we know well as well, but can we have the appearances

17 for the needs of the proceedings.

18 MS. RESIDOVIC: [Interpretation] Good afternoon, Mr. President,

19 good afternoon, Your Honours. On behalf of General Hadzihasanovic, Edina

20 Residovic, counsel, and Muriel Cauvin, legal assistant. Thank you.

21 JUDGE ANTONETTI: And the other Defence.

22 MR. DIXON: On behalf of Mr. Kubura, for today, Mr. Rodney Dixon.

23 Mr. Fahrudin Ibrisimovic will be present again from tomorrow. Thank you,

24 Your Honours.

25 JUDGE ANTONETTI: [Interpretation] Thank you.

1 After a pause of a number of days, we are going to resume our

2 hearings, and the Chamber bids good afternoon to all those present,

3 Madam Benjamin, the Defence counsel, the accused, and all the staff of

4 this courtroom.

5 Today, as you know, we will be hearing a witness. But before we

6 do that, the Chamber would like to make a few points of clarification

7 regarding some outstanding matters. It has been envisaged that we have

8 the closing session for the Prosecution on the 22nd of July. We know that

9 the Defence would prefer it to be on the 21st of July, but according to

10 the current schedule, it is not possible to have a hearing on the 21st of

11 July except if another sitting planned for the 21st of July in this

12 courtroom is cancelled. If we're informed about that in due course, then

13 we will have our sitting on the 21st of July, but we will let you know as

14 soon as possible when this sitting will take place, whether it will be on

15 the 21st or the 22nd of July.

16 As for the next three days, that is, as of today, we will have

17 another sitting tomorrow at 9.00. According to the schedule, we were

18 supposed to sit in the afternoon. But it is possible to have the sitting

19 in the morning at 9.00. And the third sitting for this week will be on

20 Wednesday, again, at 9.00.

21 Having said that, the Chamber, which studied the matter last week

22 with respect to the weeks to come, it is our opinion that should there be

23 a motion of acquittal pursuant to 98 bis, the Chamber in that case gives

24 the Defence a time period of three weeks. That is, the Defence counsel

25 will have until the 11th of August 2004 to produce this motion for

1 judgement of acquittal pursuant to Rule 98 bis. And, of course, we know

2 that the Court will be in recess during the month of August. For the

3 Prosecution to respond to the motion of acquittal, they will also have a

4 three-week period which means that the Prosecution should submit their

5 filings not later than the 1st of September 2004. In the event that the

6 Defence wishes to reply to the submissions of the Prosecution, the Defence

7 will have a three-day time period for this response. Therefore, the

8 deadline would be the 6th of September.

9 The Chamber, once it receives the filings of the parties, will

10 render a ruling not later than the 27th of September 2004. We felt that

11 we needed at least three weeks to be able to render our ruling.

12 Therefore, our ruling will be made not later than the 27th of September

13 2004. Following this stage of the proceedings, the trial would resume

14 under Rule 65 ter, and the Defence would have to submit its list of

15 witnesses and documents following our decision which should be rendered

16 not later than the 27th of September, will have five days to prepare these

17 lists which would bring us to the 1st of October when this sitting could

18 be held as provided for by Rule 65 ter.

19 Following that, the Pre-Defence Conference could be held on

20 Friday, the 8th of October, and the first Defence witness would testify

21 beginning on Monday, the 11th of October. So that would be the general

22 framework with the dates indicated so that the parties can take all

23 measures necessary.

24 Regarding filings, of course, it is up to the Chamber to limit the

25 number of pages. The Chamber allots each Defence team 25 pages per

1 Defence, which would make it 50 pages in all for the Defence of the two

2 accused. One of the Defence counsel may cede to the other Defence counsel

3 a certain number of pages on the basis of their mutual agreement. But the

4 total for both Defence teams must not exceed 50 pages. The Prosecution's

5 filings will also be entitled to 50 pages on the outside. To make things

6 quite clear, if the Defence of General Hadzihasanovic needs 35 or 40

7 pages, they will use 40 pages. And then the Defence of General Kubura

8 will only have ten pages, or vice versa. It is up to you to come to a

9 mutual agreement. But when we add up those two documents, they cannot

10 exceed 50 pages. It is quite possible that many arguments may be used by

11 both sides, and there is no need to repeat the same things twice, so you

12 can come to an agreement about this. But the point is it mustn't exceed

13 50 pages. You know that there is general directive which says that these

14 documents may not exceed 30 pages, but we feel that 25 is quite

15 sufficient. So that is what the Chamber wished to tell you.

16 At this stage, would either party have any observations to make?

17 Madam Benjamin, for the Prosecution, do you have any observations to make

18 regarding the schedule, the number of pages, or any other point at this

19 stage?

20 MS. BENJAMIN: Except to get some clarification for one issue,

21 Mr. President, in that the Prosecution would be filing one document for

22 both Defence. That's basically -- so that our 50 pages will take in both

23 accused. Sorry. Thanks.

24 JUDGE ANTONETTI: [Interpretation] Yes. The Prosecution may

25 respond to the two filings of the Defence in a single document, but you

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1 may also respond in two documents. But both cannot exceed 50 pages

2 altogether.

3 I now turn to the Defence counsel.

4 MS. RESIDOVIC: [Interpretation] The Defence for

5 General Hadzihasanovic has taken note of your directives, and we will

6 fully abide by the deadlines. The Defence is able to inform Your Honours

7 already that within the time limit, we will file a motion of acquittal

8 under Rule 98 bis, and we also feel that all the deadlines are quite

9 realistic, should a Defence case be presented. Thank you.

10 JUDGE ANTONETTI: [Interpretation] Thank you. Mr. Dixon.

11 MR. DIXON: Thank you, Your Honours. On behalf of Mr. Kubura, I

12 can also confirm that we will file a motion for acquittal and that it will

13 easily be accommodated within the time schedule set out by Your Honours.

14 And certainly, we will easily fit our submissions into the 25-page limit.

15 So no further observations other than that. Thank you, Your Honours.

16 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Dixon. So we've

17 covered all the outstanding points. We can now move on to the proceedings

18 proper. And I should like the Registrar to give instructions for a

19 private session, please.

20 THE REGISTRAR: [Interpretation] Mr. President, we are in private

21 session.

22 JUDGE ANTONETTI: [Interpretation] Let me check that there's no one

23 in the public gallery. There shouldn't be anyone there. We must make

24 sure there's no one in the public gallery. Otherwise, we need to bring

25 down the blinds. Yes, that's what we're going to do.

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3 [Open session]

4 JUDGE ANTONETTI: [Interpretation] We are now back in open session

5 as the logo for private session is no longer on the screen. Ms. Benjamin,

6 we have one more witness who should be appearing on Wednesday. Is this

7 witness available for the Trial Chamber? Could he come tomorrow? Is it

8 necessary to wait until Wednesday to hear this witness?

9 MS. BENJAMIN: Mr. President, the witness comes in tomorrow at

10 11.00 a.m. And I think our session has been changed again back to 9.00.

11 Perhaps if we were going to start at 2.15, we could have had this witness

12 ready. But since this has gone back to 9.00 tomorrow morning, I'm afraid

13 he wouldn't be able to. Because he comes in at 11.30 tomorrow morning.

14 My apologies to the Trial Chamber for what has transpired today.

15 JUDGE ANTONETTI: [Interpretation] The witness will be here at

16 11.00, and so you should be able to speak to the witness. And we could

17 commence the hearing at 2.15. Naturally, to avoid having to have the

18 witness here for two days, we could commence with his hearing. And I

19 haven't had a look at my list, but how much time did you think you would

20 need to examine this witness who was to appear on Wednesday but who could

21 appear tomorrow?

22 MS. BENJAMIN: I don't think the Prosecution needs more than an

23 hour, Mr. President. I do not anticipate that our examination-in-chief

24 would be longer than an hour.

25 JUDGE ANTONETTI: [Interpretation] Very well. Mr. Registrar, will

1 the courtroom still be available tomorrow at 2.15? Do you think you could

2 check that?

3 But I will first ask Defence counsel whether sitting tomorrow in

4 the afternoon would be a problem for them or not.

5 MS. RESIDOVIC: [Interpretation] No, Your Honour. We were

6 expecting the hearing to be tomorrow in the afternoon. We agreed to

7 appear in the morning since that was a possibility. But as far as our

8 cross-examination is concerned, we shouldn't require more than an hour.

9 But the time at which the trial will start might be a problem for us

10 because I don't know whether when my colleague mentioned the time at which

11 the witness would be arriving, I don't know whether she was referring to

12 his arrival at Schiphol or in The Hague?

13 MS. BENJAMIN: He arrives at Schiphol at 11.30. In anticipation

14 this witness would have gone on tomorrow, my proofing for this witness

15 would have been 3.00 tomorrow afternoon. But in anticipation that this

16 was going to start tomorrow afternoon, we were going to proof him anyway,

17 try to get him here by 12.30, 1.00, so that I could have proofed him

18 before I come in to continue the witness today. So I don't think there's

19 going to be a problem. I think we can get him here by at least 12.30,

20 have him proofed, and be ready for 2.15, if we can have a courtroom.

21 JUDGE ANTONETTI: [Interpretation] Very well. But given that the

22 Defence wants to see the witness, we could start at 3.00 p.m. Would that

23 be suitable? How much time do you think you'll need in order to speak to

24 the witness?

25 MS. RESIDOVIC: [Interpretation] Your Honour, we didn't think it

1 necessary to see the witness. And we are quite prepared to start at 2.15

2 or at 3.00, whatever is most suitable for the Trial Chamber.

3 JUDGE ANTONETTI: [Interpretation] Very well. But this all depends

4 on the Registry. Is it possible?

5 [Trial Chamber and Registrar confer]

6 JUDGE ANTONETTI: [Interpretation] It's okay. Very well. The

7 person in charge has confirmed that the courtroom will be available, so we

8 will commence at 2.15 tomorrow. If there's any delay, you will inform us

9 of the fact, and we will make the necessary arrangements.

10 As we have a little time left at our disposal, I will now turn to

11 the decision that we were going to render on the documents. It should be

12 ready by Friday for sure. We'll have it filed with the Registry at the

13 beginning of the afternoon. So you should then have our decision which is

14 still being completed, but it has almost finished. And we will provide it

15 officially on Friday. This should allow the Prosecution -- but this is

16 something that the Prosecution has to inform us of. It depends on whether

17 we'll have a courtroom available on the 21st.

18 The legal officer has told me that Defence counsel prefer the

19 23rd. That's the last day. So I will give the floor to the Defence.

20 There are three possibilities next week: We could have a hearing either

21 on the 21st, the 22nd, or on the 23rd in the morning. I thought that you

22 preferred, or you would have preferred the 21st, but now I'm told that

23 it's the 23rd.

24 MS. RESIDOVIC: [Interpretation] Your Honour, if the 23rd is what

25 the other Defence team would like, then we agree to that date. As far as

1 Mr. Hadzihasanovic's Defence counsel is concerned, we accept that date.

2 MR. DIXON: Thank you, Your Honours. If I could clarify, we would

3 prefer either the 21st or the 23rd. But there was simply a scheduling

4 problem from our point of view with the 22nd. If it had to be the 22nd,

5 of course, Your Honour, arrangements could be made to ensure that it did

6 go ahead on the 22nd. But our submission was if it really didn't matter

7 which day it was, then we would prefer the 21st if a courtroom was

8 available. If a court was not available, then the 23rd, if that was

9 acceptable for Your Honours' scheduling. It should only be a short

10 hearing, I understand. So if it didn't matter which day it was, then

11 either the 21st or the 23rd, depending on available courtrooms. Thank

12 you, Your Honours.

13 JUDGE ANTONETTI: [Interpretation] The Registrar has told me that

14 it's not possible on the 21st for the time being. That is the situation

15 today. But five minutes later, the courtroom might be available.

16 Ms. Benjamin, the Defence suggests the 21st or the 23rd. But the

17 hearing might not take very long since this hearing will deal with two

18 elements. Officially, you have to provide the Registry with the documents

19 that relate to our decision that will be rendered on Friday. These

20 documents have to be provided so the Registrar can provide them with

21 exhibit numbers. Naturally, there won't be any numbers for the exhibits

22 that have been rejected. That will be the first stage of the hearing, but

23 we should be able to deal with this quite quickly since the Judges have

24 been working on the matter for a number of weeks now. Then the second

25 stage will involve you informing us officially that you have concluded the

1 presentation of your case.

2 Ms. Benjamin, at this point in time, is the 23rd a problematic

3 date for you or not?

4 MS. BENJAMIN: Mr. President, the 23rd is a convenient date for

5 the Prosecution.

6 JUDGE ANTONETTI: [Interpretation] So for the moment, it will be

7 the 23rd. If the 21st is a possibility, we will inform you of this fact,

8 and that will give us two additional days to work. That will give you two

9 additional days to work on your motion for acquittal.

10 So we will try to ensure that we have the hearing on the 23rd.

11 But the hearing tomorrow will start at 2.15, which means that there won't

12 be a hearing on Wednesday.

13 Are there any other issues that either of the parties would like

14 to raise? I'm turning to the Defence.

15 MS. RESIDOVIC: [Interpretation] Thank you, Your Honour.

16 MR. DIXON: Your Honour, there was one matter concerning nine

17 outstanding documents which I believe my learned friend from the

18 Prosecution was going to raise. Perhaps this might be a convenient time

19 to do that now.

20 JUDGE ANTONETTI: [Interpretation] Yes. As far as these documents

21 are concerned, there is a slight problem that remains. And the

22 Prosecution wanted to discuss the matter. Ms. Benjamin, you may take the

23 floor.

24 MS. BENJAMIN: Mr. President, it has been brought to the attention

25 of the Prosecution that there are nine documents that have internal OTP

1 numbers, but for some reason or other was never dealt with. So there's no

2 Prosecution number, there's no contested document number, and the

3 documents are not in the possession of anybody else but the Prosecution.

4 We have reviewed the documents on the weekend, and it is our impression

5 that they are not particularly relevant to our purpose. And as such, we

6 wish to on the record withdraw the documents.

7 JUDGE ANTONETTI: [Interpretation] Could you provide us with the

8 numbers of these documents, if you have them.

9 MS. BENJAMIN: At the bottom of -- this is page 1 of the list.

10 They're not in numerical order, but they start from 961, and the internal

11 number will be 961956948, 954, 955, 951, 963, 966, and 949. I think that

12 they were with a bundle of documents that were withdrawn earlier on, but

13 for some reason these eluded that bundle.

14 JUDGE ANTONETTI: [Interpretation] If the Trial Chamber has

15 understood this correctly, there's a series of documents on the table, and

16 you just mentioned the numbers of these documents. These documents will

17 be withdrawn. According to the transcript, we can see these numbers in

18 the transcript. 961, 956, 948, 954, 955, 951, 963, 966, and 949. That's

19 nine documents.

20 MS. BENJAMIN: Yes, Mr. President.

21 JUDGE ANTONETTI: [Interpretation] Very well. So we will grant

22 your request. Ms. Benjamin, as far as certain documents, the translation

23 of which is still on standby, are concerned, the legal officer mentioned

24 certain documents, and we are awaiting the translation of these documents.

25 At what stage are you? Because if we don't have these documents by

1 Thursday at the latest, we won't be able to admit the documents into

2 evidence. We won't be able to do this if we don't have the translations

3 of the documents. The translations requested are not lengthy, but there

4 are a few documents the translations of which are still not available.

5 Could you provide us with some information about this.

6 MS. BENJAMIN: Mr. President, I'm informed that the translations

7 are almost completed, and the Prosecution intends to supply the Court with

8 all outstanding documents, re-translations and otherwise, by Friday. So

9 we are hoping and grateful for the extension to the 23rd, that by Monday

10 we should have tied up all our documents and everything should be in order

11 for the 23rd.

12 JUDGE ANTONETTI: [Interpretation] Yes, but Ms. Benjamin, the

13 question is that -- or the problem is that as I said, the Trial Chamber

14 will be rendering its written decision on Friday. And this means that for

15 us, and believe me, we have examined each document individually, spent

16 hundreds of hours, thousands of hours, even, on the documents, this means

17 that if we don't have the documents on Thursday, not next week but on

18 Thursday, if we don't have the documents on Thursday, we won't be able to

19 admit them because our decision will be rendered without a doubt on

20 Friday. So perhaps you should make an effort. You have 48 hours. We

21 still have 48 hours available. And we shouldn't have any problems because

22 of a few pages that are missing. After having examined, as I said, all of

23 these documents and spent hundreds of hours on them, we realised that

24 there are certain documents in B/C/S hadn't been translated into English.

25 And it is these outstanding documents that we must have. Could you make

1 an effort and ensure that by Thursday at the latest we have these

2 outstanding documents.

3 The other solution, but legally speaking I would think this would

4 be going a bit far. It would involve rendering a decision without having

5 admitted the documents, but we need the translations. Could we have them

6 by Thursday.

7 MS. BENJAMIN: I think I will have to give the Court an

8 undertaking that I will try to get it to you by Thursday. We are

9 finishing early, and I will personally endeavour to look at them, see what

10 else is to be done, and I would try to make a commitment to the Trial

11 Chamber that I can have it to you by, latest, Thursday. Because Thursday

12 is just one day before Friday. So I will try my very best to have it on

13 Thursday in light of what has been just said.

14 JUDGE ANTONETTI: [Interpretation] Yes. Because if I've understood

15 this correctly, among these documents that haven't been translated, there

16 are some unofficial documents that haven't been stamped or certified by

17 the -- by CLSS. The Rules don't state that a translation has to be

18 certified by CLSS. English and French are the two working languages, and

19 if we have the translation in one of the languages, it's sufficient. It's

20 not necessary to have the document translated by the CLSS translator who

21 is not part of this. This could also -- have translated the document in

22 question.

23 MS. BENJAMIN: Much obliged, Mr. President, and I will seek to

24 ensure that we have the documents on Thursday. Thanks.

25 JUDGE ANTONETTI: [Interpretation] Very well, Ms. Benjamin. Thank

1 you.

2 I know that the question of documents has meant that both parties

3 have had a lot of work to do. This work has almost been completed, and

4 this is why a solution has to be found in relation to the few outstanding

5 documents. But there is a substantial matter that has to be addressed

6 here. In the future, if the Prosecution has documents in a language that

7 isn't one of the Tribunal's working languages, the Prosecution has to

8 ensure the documents are translated. And when there is an indictment that

9 accompanies documents, the confirming Judge must have at his disposal all

10 the documents translated into one of the working languages, that is to say

11 either into English or into French. We don't want to have situations in

12 which we have an indictment, documents, we have a pre-trial stage, the

13 beginning of the trial, and then later on we realise that there are

14 certain documents that haven't been translated. This really poses a

15 problem. And one must be careful because it has to do with the rights of

16 the Defence and the work of both of the parties and of the Judges. The

17 Judges have to have translated documents at their disposal.

18 If there are no other issues to raise, we will resume tomorrow at

19 2.15. Thank you. And I will see you all tomorrow.

20 --- Whereupon the hearing adjourned at 4.30 p.m.,

21 to be reconvened on Tuesday, the 13th day of July,

22 2004, at 2.15 p.m.

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