Tribunal Criminal Tribunal for the Former Yugoslavia

Page 278

1 Thursday, 27 January 2005

2 [Pre-Trial Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 1.00 p.m.

6 JUDGE LIU: Please call the case, Mr. Court Deputy.

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

8 IT-01-48-PT, the Prosecutor versus Sefer Halilovic.

9 JUDGE LIU: Thank you very much.

10 May I have the appearances, please, for the Prosecution.

11 MS. CHANA: May it please Your Honour. Sureta Chana, Philip

12 Weiner, David Re, and Manoj Sachdeva for the Prosecution, very ably

13 assisted by Ana Vrljic, our case manager.

14 JUDGE LIU: Thank you very much.

15 And for the accused?

16 MR. MORRISSEY: Thank you. It's -- Peter Morrissey appearing

17 with Guenael Mettraux and with legal assistant Amir Cengic and also

18 assisted by Medina Delilac, present in court.

19 JUDGE LIU: Thank you very much.

20 Today it is the continuation of the Pre-Trial Conference. We

21 will discuss some things in detail, especially concerning with the motions

22 and the witness list.

23 And before that, I would like to know whether the parties have

24 received the draft guidelines sent informally by the Trial Chamber, and I

25 would like to know at this stage are there any comments on it.

Page 279

1 MR. MORRISSEY: Your Honour --

2 JUDGE LIU: Yes, Mr. Morrissey.

3 MR. MORRISSEY: Sorry. We're grateful for receiving those

4 guidelines. They are clear, and at this stage we have no comments to

5 offer on them.

6 JUDGE LIU: Thank you very much.

7 Ms. Chana.

8 MS. CHANA: Likewise, Your Honour. We have no comments and we are

9 also grateful for the guidance.

10 JUDGE LIU: Thank you very much.

11 I believe that during the last Pre-Trial Conference as well as

12 the Status Conference before, the Pre-Trial Judge instructed the parties

13 should meet and discuss any agreement on matters of law as well as fact.

14 If so, I would like to know are there any progress.

15 Yes, Mr. Morrissey.

16 MR. MORRISSEY: As to the question of facts, there is progress.

17 We have had an exchange of facts. It's likely that a large number of

18 background facts are to be agreed. We met yesterday for a number of

19 hours. We don't have the list. We indicated the possibility of a report

20 to the Court today. We can't comply with that, but what we can say is

21 that there is material progress about facts, certainly background,

22 uncontroversial facts.

23 As to matters of law, I cannot give such an optimistic ...

24 JUDGE LIU: I see. So there's still some differences between the

25 parties concerning of the law.

Page 280

1 MR. MORRISSEY: There remain such differences.

2 JUDGE LIU: I'm a little bit surprised to hear that. Your

3 letter -- there were no differences concerning of the matter of law

4 rather than a lot of difference on the facts. Because the law is very

5 clear and here in this case is not that, you know, complicated.

6 MR. MORRISSEY: Your Honour, it depends how specific Your Honour

7 wants -- wants to be. We -- there are some matter where we want

8 clarification from the Prosecution. These are not major matters. I must

9 say they're small points that are being discussed between myself and

10 Mr. Re and Ms. Chana as well, and it's safe to say there's likely to be

11 progress about them. But we remain in discussion about the significance

12 of some points of law. I thought I should raise that here in response to

13 Your Honour's question.

14 JUDGE LIU: Well, for instance, the armed conflict, you know, is,

15 you know, preconditioned to apply the law in this case, you know.

16 MR. MORRISSEY: Well, Your Honour, with respect to that, we can

17 indicate -- I know my learned friends have something to say about that.

18 So do we. It's a matter that -- we submit that the Prosecution has to

19 plead and that they should specify what the nature of the armed conflict

20 is. The reason why they do is because of the need for -- in demonstrating

21 the nexus, they will need to demonstrate what the link between the

22 particular events are and the armed conflict in question. Those are the

23 matters that should be pleaded.

24 We are -- we may be in a position to make sensible concessions

25 about it, and we may be in a position to do so today. But we would ask

Page 281

1 the Prosecutor to specify, do they say this is an international armed

2 conflict or not. And --

3 JUDGE LIU: Is that a relevant issue, the nature of the armed

4 conflict?

5 MR. MORRISSEY: We think it is.

6 JUDGE LIU: Now, may I turn to Ms. Chana.

7 MS. CHANA: Yes, Your Honour. I confirm we did have some very

8 meaningful discussions with the Defence counsel yesterday, myself and

9 Mr. Re and Mr. Morrissey, and we have sort of pinned down -- we went

10 through the indictment line by line, and Mr. Morrissey indicated his

11 agreement or possible agreement to some of them, which -- pending him

12 consulting his client.

13 And in respect to the armed conflict, Your Honour, I don't think

14 there's any relevance to the indictment as it stands now, whether there's

15 an internal or an international armed conflict. And we did invite the

16 Defence to tell us which armed conflict they would be agreeable to

17 conceding. But as Mr. Morrissey has already indicated to Your Honours

18 that he was going to, after consulting with his client, give a document of

19 all the agreed facts. And also there's some documents, Your Honours,

20 which we did agree the contents, at least some -- I think it was something

21 like 12 documents, Your Honour, which the Court will not be burdened by

22 because we have agreed on the contents of these overview documents.

23 So pending Mr. Morrissey's now report, we will be able to file

24 something with the Chamber hopefully by today.

25 JUDGE LIU: Thank you very much.

Page 282

1 I believe that I am quite encouraged by the progress made by both

2 parties, and I am expecting a report by tomorrow.

3 So I still hope that after this sitting, if both parties have

4 time, you could sit together again and go over all those, you know,

5 contents of the report as well as a short discussion concerning of matter

6 of law. Thank you. It is so decided.

7 The next issue is the witness list. The Trial Chamber has

8 received the witness statements of all proposed witnesses, including the

9 92 bis statement. Here are still some questions I would like to ask the

10 parties. The first question will go to the Prosecution: Did the

11 Prosecution provide the statement of Mr. Mujezinovic to the Defence?

12 MS. CHANA: Yes, Your Honour. I can confirm that that statement

13 has been provided to the Defence.

14 JUDGE LIU: Thank you very much.

15 And did Defence receive all other statements it asked for?

16 [Defence counsel confer]

17 MR. MORRISSEY: With respect to the statements of Ms. Miletic and

18 Mr. Husic, no.

19 JUDGE LIU: Yes. Thank you.

20 Ms. Chana.

21 MS. CHANA: Your Honour, our position in respect of these two

22 statements is we simply do not have them, and this is something we've

23 already told the Defence and we cannot disclose what we do not have.

24 As of now, from all our searches. As I said, these things do keep turning

25 up. But from all due diligence searches, we simply do not have those

Page 283

1 statements.

2 JUDGE LIU: Are you going to call those two persons as a witness

3 in your case?

4 [Prosecution counsel confer]

5 MS. CHANA: Yes, Your Honour, we are calling them as witnesses.

6 JUDGE LIU: If you're going to call them and without any

7 statement furnished to Defence, how could we proceed the trial?

8 MR. MORRISSEY: Could I just clarify that --

9 JUDGE LIU: Yes. Yes.

10 MR. MORRISSEY: I might clarify, Your Honour. We have received a

11 statement in respect of Miletic and some statements in respect of Husic.

12 But we -- but there are outstanding statements that are referred to in

13 what we have. We are not bereft of material from those. We do have some.

14 But there are statements referred to in their materials which make it

15 manifest that there is another statement, at least, and that with respect

16 to each. And that is what is currently missing.

17 JUDGE LIU: Is that true, Ms. Chana?

18 MS. CHANA: Your Honour, we only have one statement from Miletic

19 and -- which we have disclosed. We have no other statement. That is the

20 position of the Prosecution, Your Honour.

21 JUDGE LIU: Yes. Well, maybe we could go through that statement

22 and see what kind of statements requested by the Defence counsel.

23 MR. MORRISSEY: With respect to Miletic, Miletic says, "This is

24 the second time I'm being interviewed" -- sorry, Your Honour, I'm

25 paraphrasing here because I don't have the statement before me. But she

Page 284

1 indicates clearly that she's been interviewed by the ICTY investigators on

2 another occasion.

3 JUDGE LIU: I see. We'll see to that. Thank you.

4 MS. CHANA: Your Honour, may I respond to that? And this is an

5 issue which had been raised before the 65 ter Conference, where this very

6 line was referred to by the Defence counsel.

7 And our view on the matter is that sometimes the witnesses think

8 they've -- when they talk to an investigator, they gave a statement. It's

9 obviously a mistake on her part that she thinks that she's given another

10 statement. That's what we surmise from that -- the first line of that

11 statement of Miletic's.

12 JUDGE LIU: I see. So in your view, there's no previous

13 statement, interviews at all?

14 MS. CHANA: We have done all our searches, Your Honour, and we

15 are not been able to identify any other statement from Miletic.

16 JUDGE LIU: Thank you very much.

17 MR. MORRISSEY: Your Honour, may I --

18 JUDGE LIU: Yes.

19 MR. MORRISSEY: May I make the observation about that. That Your

20 Honour is in a difficult position in dealing with the materials here

21 because obviously you can't search for them or involve yourself in it.

22 All we can do on the Defence side is point to why we say there

23 is a further statement, earnestly plead with the Prosecutor to look as

24 hard as they can, and remind the Prosecutor that what Your Honour had just

25 been told in respect to Ms. Miletic was in fact the Prosecutor's position

Page 285

1 about Mujezinovic and any such statement. But as it turned out, by

2 looking hard, there was. And in good faith the Prosecutor then found that

3 statement. It may be that by good fortune such a statement will be found,

4 and we would like it because she's an early witness.

5 JUDGE LIU: So you are saying that, you know, once a thief,

6 always a thief?

7 MR. MORRISSEY: Your Honour, the truth is that statements like

8 that always return to those who make them. We don't suggest a thief in

9 any way. What we suggest is that we -- we would like that statement

10 because she's an early witness. And it may be a matter of some

11 importance, so we ...

12 JUDGE LIU: Well, if -- if the Prosecution has shown good cause

13 and -- and paid due diligence in this matter and exhausted all the

14 efforts, still there's no statements available, so I think the Prosecution

15 could be excused.

16 Thank you.

17 Here I have a request on the part of the Prosecution; that is, we

18 hope that the Prosecution could furnish the Trial Chamber as well as the

19 Defence with a list of the witnesses in the chronological order of their

20 proposed appearances tomorrow, because we are going to hear the witness

21 next Tuesday, so we should have a list at least for two weeks' witnesses.

22 Is it possible, Ms. Chana?

23 MS. CHANA: Yes, Your Honour. We shall furnish that -- that list

24 to the Chamber.

25 JUDGE LIU: Thank you. Thank you very much.

Page 286

1 Now -- yes.

2 MR. MORRISSEY: I'm sorry, Your Honour.

3 JUDGE LIU: Yes, Mr. Morrissey.

4 MR. MORRISSEY: Briefly, we -- there's been a court order in the

5 past indicating that the earlier witnesses to be called would be Grabovica

6 witnesses, and we've structured our preparation accordingly so that in

7 compiling the list of witnesses to be available, the Prosecution, in my

8 submission, ought to bear that in mind.

9 JUDGE LIU: Can I get some confirmation from Ms. Chana.

10 MS. CHANA: Your Honour, we had indicated that we will endeavour

11 to start with the Grabovica witnesses. And I think most of them are

12 Grabovica witnesses at this time. And -- but there's been no sort of firm

13 commitment that that's what we will do. That's our position, and we are

14 trying to -- to start the -- the case in -- in that order, Your Honour.

15 And I think the Defence will find that that's the order that it comes out

16 in.

17 JUDGE LIU: Well, let's see your -- your list first. Yes.

18 The next issue are the outstanding motions. The -- yes.

19 MS. CHANA: Your Honour, before you go into that, I have another

20 disclosure issue.

21 JUDGE LIU: Yes, please.

22 MS. CHANA: And of course I say this with a certain amount of

23 embarrassment, Your Honour, having been -- what's just transpired. We do

24 ask leave to disclose to Your Honours four statements; this is pursuant of

25 the 7th May order imposed upon the Prosecution.

Page 287

1 Now, these are further statements we have discovered - and this

2 is part of our due diligence searches, Your Honour - we have a statement

3 from Selmo Cikotic, which was taken on 12th November 2004. We have a

4 statement from Ahmed - how do you pronounce it? I'm sorry, I'm having

5 difficulty with the pronunciation. Salihamidzic. It was taken on

6 6th November 2004.

7 We have two statements from Jusuf Jasarevic, one which was taken

8 on 29th November 2004 and another one taken on 28th March 2003. I'll come

9 back to these statements, Your Honour, and explain the circumstances.

10 And then there's one final one from Imam Zebic, taken on

11 6th November 2004.

12 Your Honour, all of these -- first if I can explain the one from

13 Jasarevic, which was taken on 28th March 2003. Your Honour, for that I

14 can only humbly beg everyone's pardon. It was an oversight. And these

15 statements do come out because, as I have indicated on many occasions -

16 and I'm being repetitive here - we are doing searches. We do look at

17 these searches. And they do throw up other statements which we had missed

18 by all due diligence.

19 Your Honour, this is a -- the nature of the beast, and I think

20 this is something which all Trial Chambers and all Prosecution counsel

21 face since our data banks are so huge. So as I said for that, I simply

22 apologise.

23 As for the others, the other statements, they were all taken in

24 respect of another investigation that the Office of the Prosecution is

25 conducting. And there is very little relevance other than I've had a look

Page 288

1 at the statements, other than one statement which has a slight relevance

2 to this indictment. All the others are for a different crime base and

3 another investigation. And they were taken in November 2004, and we just

4 realised that they had not been disclosed.

5 So in light of that, Your Honour, we are prepared to call these

6 witnesses later in the day so that no prejudice is caused to the Defence

7 in their preparation for the Defence. That is what we can offer to the

8 Defence in light of our trespass.

9 JUDGE LIU: Thank you very much.

10 As a practice of this Tribunal, I believe that the disclosure

11 should be completed six weeks before the start of the trial. The reason

12 for that is to give the Defence enough time to prepare their case and to

13 do some necessary investigations.

14 I believe Mr. Morrissey has some good ideas on that. Could I

15 hear your response.

16 MR. MORRISSEY: We agree with the general principle enunciated by

17 Your Honour.

18 The witnesses in respect of who these statements have been taken

19 are each of them capable of being of great significance. The statement of

20 Jusuf Jasarevic seems to be taken, if I heard correctly, on the 29th of

21 November of 2004. And whilst of course I accept my learned friend's

22 statement that there's an element of oversight in it, it's an astounding

23 situation that a witness like that could have a statement taken at that

24 time, which was overlooked by oversight, which would appear to be related

25 to this case. And if that were an oversight, it's the sort of oversight

Page 289

1 that's really got to stop because it's embarrassing the Defence in their

2 preparation.

3 There are court orders in place ordering that disclosure cease,

4 dated 15th of December, 2003 and 17th of December, 2004. As indicated on

5 Monday, many times have the Prosecution been told to cease disclosure and

6 many times have they undertaken to do so. And the question of good faith

7 is not the issue here, and we don't seek in any way to impugn what my

8 learned friend says. The question is: Can the Defence have any

9 confidence and protection from the ongoing disclosure.

10 I illustrate that by reference to Mr. Jasarevic who I've been

11 personally preparing as a witness who was said to come quite early in the

12 trial for three days. Now we have this material.

13 Now, Your Honour, I raise this as an issue. We don't know what's

14 in these statements. It would be premature now to say precisely how the

15 Defence is prejudiced and indeed it's scientifically possible, though

16 unlikely, that the Defence isn't prejudiced. We need to see what's in the

17 statements, of course. But it places us in a position of embarrassment.

18 Let me be clear that the Defence does not wish this matter

19 postponed. Mr. Halilovic is now in custody, has been waiting for a long

20 time, and the benefits usually brought about by postponements and

21 adjournments now have to be weighed against the -- the detriments of such

22 palliative measures.

23 So, Your Honour, at this stage, all we can do is to agree sadly

24 with Your Honour's comment that it's desirable that these matters be

25 resolved earlier, note that we're likely to be prejudiced by what is being

Page 290

1 done, and ask the Prosecution to indicate why it is now that we shouldn't

2 believe there are many more statements coming at arbitrary and

3 unpredictable times and how we can prepare this case in anything like

4 peace and order so that we don't waste the Tribunal's time, as I feel

5 perhaps I am now making this speech. We'd rather be talking about

6 something useful, but we're protesting against the disclosure practices

7 that we have been complaining of for 12 months.

8 When my learned friend asked to be liberated from the disclosure

9 regime on Monday, the Court can readily see why they shouldn't be. They

10 should be compelled to seek leave each time and to provide a detailed

11 explanation each time as to why the material wasn't provided.

12 Other than that, I wasn't told about this before I came to court,

13 and I know nothing about it, Your Honour. But I can say that these

14 witnesses are all capable of being significant witnesses, and this is

15 significant material.

16 And I'll close these comments by saying that apart from the

17 statement of Mr. Jasarevic, statements relating to the other witnesses

18 with respect to other investigations can remain of central relevance

19 because the credit of at least two of those witnesses and, depending on

20 the circumstances, all of them, may become an issue in this case. And

21 therefore material going to their credit, particularly if they're being

22 questioned about other war crimes - we don't know - is relevant and

23 Rule 68 material that we should have and need. So there is nothing

24 trivial on the face of it about the other four statements. As to

25 Jasarevic, it looks bad, but I say no more.

Page 291

1 JUDGE LIU: Thank you very much.

2 I'm very sorry to hear that there are so many oversights on the

3 part of the Prosecution for their -- for their obligation to disclose the

4 materials. We'll start the case next Monday, but still there's some

5 materials or statements that need to be disclosed to the Defence.

6 But at this stage, it's very difficult for the Judge to assess

7 how the Defence is prejudiced against, unless we see the contents of those

8 materials. So I believe that we will order that the Prosecution to

9 disclose those materials to the Defence as well as to the Chamber as early

10 as possible. Then - then - we'll consider how to deal with them after

11 hearing the submissions from the parties. It is so decided.

12 MS. CHANA: Yes, Your Honour.

13 JUDGE LIU: Could we come to the outstanding motions. I see

14 everybody nodding.

15 The first motion we are going to deal with is a motion for

16 striking out paragraphs in the Prosecution's pre-trial brief. Up to now,

17 we haven't heard any response from the Prosecution. I just want to know

18 whether they want to respond to this motion or not.

19 Ms. Chana.

20 MS. CHANA: Your Honour, Mr. Re will be dealing with this

21 particular issue.

22 JUDGE LIU: Yes, Mr. Re.

23 MR. RE: Does Your Honour mean in the sense of respond orally

24 today in court or to file a written response?

25 JUDGE LIU: Well, you could do whatever you like.

Page 292

1 MR. RE: Well, I can give you a response orally today. I gave

2 you one in general terms on Monday. Our response is really no different

3 to the response I gave on Monday. We view the motion as superfluous if

4 not frivolous in the context of the proceedings here. The Defence is

5 properly on notice of the case, and most of the matters referred to in

6 that motion relate to the evidence which will be produced at trial by the

7 Prosecution. And the Defence is well and truly on notice of that from the

8 statements we have served on them and the exhibits and discussions we have

9 had and our supplement setting out the case theory, which the Defence

10 have.

11 The Prosecution view is that such a motion should not really even

12 be entertained by the Trial Chamber because it actually serves no purpose

13 in the expeditious conduct of these proceedings. And we are quite frankly

14 mystified as to why it has been filed and why it has been filed in the

15 week before trial and the purpose of it, because even if the Trial Chamber

16 were to grant the relief sought, which is to strike out certain portions

17 of that document, it doesn't or wouldn't preclude the Prosecution from

18 leading the evidence, which it has notified the Defence it intends to lead

19 in pursuit of the allegations. The Prosecution maintains that its case is

20 properly pleaded and the Defence have in accordance with the jurisprudence

21 of the Tribunal, have proper notice of the material facts, the -- the

22 allegations against their client, and all the evidence which we intend to

23 lead against them in the coming weeks -- against the accused in the coming

24 weeks. And at this late stage of the proceedings, this is an irrelevant

25 diversion from the real matters which are sorting out the witnesses we can

Page 293

1 call, the exhibits we will tender, the order of exhibits, and the proper

2 conduct of the trial.

3 If Your Honour -- if Your Honour requires a written response to

4 it -- I just don't want to waste the Court's time at this particular

5 point. We could go on for a lot longer and respond to various things in

6 it. If Your Honour wishes to -- wishes the Prosecution to file a written

7 response, we will do so within the time accorded in the Rules, unless Your

8 Honour truncates it. But that's -- that's the basic response to that.

9 JUDGE LIU: Thank you very much.

10 I think we should reduce the paperwork as much as possible. Your

11 position is quite clear, at least to me.

12 I just want to hear a very concise rebuttal or response,

13 whatever, in the Defence side.

14 MR. METTRAUX: Good afternoon, Your Honour. I'll be as concise

15 as I can in relation to this matter.

16 My colleague from the Prosecution has indeed identified the two

17 issues which are of some concern to the Defence, which is, one, the issue

18 of notice; and, second, the evidence which is going to be led at trial.

19 Concerning the first issue, the issue of notice. The position of

20 the Defence is that the pre-trial brief may indeed provide some further

21 particulars as to the facts which are being pleaded in the indictment. On

22 the other hand --

23 THE INTERPRETER: Could the speaker please slow down. It is too

24 fast for the interpreters. Thank you.

25 MR. METTRAUX: [Previous translation continues] ... and the

Page 294

1 concern of the Defence is that that is precisely what the Prosecution is

2 attempting to do, in other words, trying to go beyond the indictment

3 through the pre-trial brief.

4 The other issue of concern to the Defence is that of the evidence

5 which will be led by the Prosecution, and the concern that the Defence has

6 is that some of that evidence will be evidence that goes to facts which

7 are not properly or not sufficiently pleaded in the indictment. And the

8 nature of our motion is to have those parts of the pre-trial brief which

9 are nowhere to be found in the indictment stricken out of the Prosecution

10 pre-trial brief so that the Defence is not faced at the end of the

11 Prosecution case with a suggestion that it had adequate notice of those

12 facts. Adequate notice of material facts must be found in the indictment

13 and they are not.

14 Thank you, Your Honour.

15 JUDGE LIU: Well, thank you very much.

16 Here I just want to stress one point, that the finding of this

17 Trial Chamber will be based on the indictment, not on the pre-trial

18 briefings. And the pre-trial briefings are just for reference purpose.

19 And if we need to seek some clarifications on the point which is in the

20 indictment, we might refer to the pre-trial briefs.

21 And I want to stress that in no way the pre-trial brief could be

22 served as evidence in this case and is just the positions and the case of

23 one side.

24 The Trial Chamber will consider the submissions from both parties

25 and render its decision early next week. It is so decided.

Page 295

1 MR. METTRAUX: Thank you, Your Honour.

2 There are two very short points that we would like to place on

3 the record following the comments made on Monday by the Prosecution.

4 The first one relates to the pre-trial brief. The record tends

5 to suggest that the old pre-trial brief, which was filed on the 17th of

6 June, 2002, still is a valid pre-trial brief, despite the fact that a new

7 pre-trial brief of the Prosecution has been filed on the 13th of

8 October, 2004. This is the Defence understanding that it is not so and

9 that only the new pre-trial brief stand to this day.

10 The second point which we would like to place on record:

11 Consider the suggestion -- concern the suggestion which was made by the

12 Prosecution that the material facts or pleading contained in their

13 supplementary explanation of December of last year would in some way

14 provide some degree of notice to the Defence of what their case is. This

15 supplementary explanation was denied by the Trial Chamber on the basis

16 that it was a non-permissible attempt to file an amendment to the

17 pre-trial brief. The Defence consider it has received no notice about

18 what the Prosecution case is in relation to that supplementary

19 explanation.

20 Thank you.

21 JUDGE LIU: Thank you very much for drawing my attention to these

22 two points. But I also have a question to ask you, Mr. Mettraux: That

23 is, how about your pre-trial brief?

24 MR. METTRAUX: As Your Honour will be aware, this pre-trial

25 brief - and as my lead counsel underlined on Monday - was filed a long,

Page 296

1 long time ago by prior counsel. We were invited late last year by the

2 previous Trial Chamber to file a new pre-trial brief. As we indicated in

3 one of our filings, we were unfortunately not in a position, having

4 neither the resources, not the time to file a new pre-trial brief at that

5 stage, which in fact forced us to continue to stand by the one that was

6 filed in 1993, June, if I'm -- if I'm correct. And this is the pre-trial

7 brief of the Defence for the time being, Your Honour.

8 JUDGE LIU: No, no, no. I just want to know whether you agree

9 with your -- you know, the -- the previous pre-trial brief or not. How

10 about the contents?

11 MR. METTRAUX: Well, there are matters which may require some

12 explaining on the part of the Defence in relation to that pre-trial brief,

13 to the extent that some of the statements made in that brief may not be

14 sufficiently clear. And it is very possible that should we have the time

15 to do so in the course of the Prosecution case orally before the beginning

16 of our case, we should make those elements as clear as possible to the

17 Chamber.

18 JUDGE LIU: Well, you mean that there's still a possibility for

19 you to file a new pre-trial brief?

20 [Defence counsel confer]

21 MR. METTRAUX: Yes, Your Honour. I wouldn't suggest that we

22 would go as far as filing a new pre-trial brief. I don't think that we

23 will have either the time to do that or that there would be a need for

24 that. But there may indeed be some amendment in relation to some limited

25 issues, yes.

Page 297

1 JUDGE LIU: Thank you.

2 Yes, Ms. Chana.

3 MS. CHANA: Your Honour, if I may intervene at this point. The

4 Defence made a point that they were forced to -- to maintain their old

5 pre-trial brief. I feel this deserves a comment, and I would like to

6 place it on record that at the time this question of resources was never

7 brought up. They simply stated that the old pre-trial brief stands. This

8 is a new issue which counsel has raised today, and I would like the record

9 to reflect that this was not the position at the time they were given the

10 opportunity to respond to the pre-trial brief.

11 JUDGE LIU: Thank you very much for reminding me of that point.

12 Let's come to the next motion. The next motion is for the

13 postponement of witness testimony and for full disclosure of the relevant

14 materials. And since this motion concerning some particular persons --

15 and my suggestion is that we'll go to the private session.

16 Is that agreeable?

17 MR. MORRISSEY: That's fine, Your Honour.

18 JUDGE LIU: Yes. We'll go to the private session, please.

19 [Private session]

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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Page 307

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2 (redacted)

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4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 [Open session]

13 JUDGE LIU: Yes, we are now in the open session.

14 The next issue is about the Prosecution's application for leave

15 to permit testimony via video conference link. We haven't received any

16 response from the Defence yet.

17 Mr. Morrissey, could you please just simply state your views on

18 that issue.

19 MR. MORRISSEY: Yes. Your Honour, if the Court was -- if the

20 Tribunal was minded to determine that matter now by oral -- after hearing

21 oral argument, we would be content to present such argument. I can

22 indicate that our position at the moment is that on the material provided,

23 we would not be in a position to -- to consent to the -- to the order

24 sought and to the motion, and we would oppose it on the material currently

25 provided. That material falls short in a number of ways, and I can

Page 308

1 present argument if -- if you would wish to hear it now.

2 JUDGE LIU: Yes. Yes, please.

3 MR. MORRISSEY: But we concede -- I'll make it clear, we concede

4 there's a big public interest in the determining the matter quickly, that

5 the Prosecution have a legitimate interest in that too. Very well.

6 Well, Your Honour, the first issue about it is -- is this: That

7 the Prosecutor has to establish a number of matters -- sorry, would Your

8 Honour just excuse me a moment.

9 [Defence counsel confer]

10 MR. MORRISSEY: Yes. Thank you. Sorry, Your Honour. My learned

11 co-counsel has assisted me here.

12 Your Honour, the four matters that have to be established in

13 order for the Prosecutor to succeed in the application is, first of all,

14 that the witness is unable or unwilling to come to the Tribunal. At the

15 moment, it would appear simply that unwillingness has been established on

16 the current material.

17 Secondly, the testimony of the witness has to be shown to be

18 sufficiently important to make it unfair to proceed without it. Now,

19 that -- again, we'd submit that -- that the material you have falls short

20 of that. It's just simply not spelled out why it is that this evidence is

21 of such great significance. In that regard, it should be recalled that

22 these witnesses are what might be described as "left bank witnesses." And

23 it's the Prosecution's case that these killings took place on the right

24 bank, by units established on the right bank and quartered or billeted on

25 the right bank.

Page 309

1 Thirdly, it's got to be established that the accused wouldn't be

2 prejudiced in the exercise of his right to confront the witness.

3 These witnesses are -- it's not right for Defence counsel to cast

4 dispersions on them when they're not here. But what I put here is that

5 there is a tolerable likelihood that issues of credibility will be raised

6 and that there may be challenges to aspects of their evidence, whether it

7 be memory or truthfulness, we'll have to wait and see. But it can't be

8 said these are witnesses who are uncontroversial witnesses. They give

9 evidence as to timing, and they will be tested on their recollections

10 directly upon that. And it therefore will be for the Court to form a view

11 about them. And the Court is better able to form that view if you can see

12 the witness. The accused is prejudiced by not seeing -- by not having the

13 Court see those witnesses and assessing them. And that is a fundamental

14 matter which doesn't need to be repeated many times but must -- but can't

15 be forgotten. We'd submit that's the founding matter and that the

16 status quo is that unless the Prosecution show that the other matters

17 overwhelm that, that it is the interest. And Rule 71 bis provides that it

18 is -- the moving party, the Prosecutor, has to establish if it's in the

19 interests of justice to do this.

20 Now, to come to the concrete case, you have two brief and, we

21 submit, inadequate medical reports which have been advanced to indicate

22 that these, both witnesses, are old and have each different health

23 concerns. We do not dispute that they have those concerns. That material

24 does not go so far as to suggest that the witnesses are unable to travel

25 to The Hague or would be prejudiced or -- or that their health would be

Page 310

1 prejudiced by doing so and nor has it been pointed out why it is worse to

2 go to The Hague than it is to go to Sarajevo. One can imagine that

3 evidence could be led to that extent, if it existed. Such evidence would

4 be easy to find if it existed and should be presented if it existed. And

5 indeed, if it existed, the Defence may well take -- might, in some

6 circumstances, take a different view.

7 But you have to deal with it, Your Honour, on the basis of what

8 you have. And that's why we -- and that's the way we have to deal with it

9 too. And so that's why we take the -- the stance that we take.

10 And in particular, we say that you have to draw a distinction

11 between the inconvenience to a witness and genuine troubles which would

12 allow an extraordinary measure to be taken, which in some cases is highly

13 appropriate. But on the current material, which I stress - the current

14 material - we say that the Prosecution has not established what it needs

15 to for those reasons.

16 JUDGE LIU: Thank you very much.

17 A very short response. Yes.

18 MR. WEINER: Your Honour, as the Court knows, video conferencing

19 is used in practically every case. It's used by Defence. It's used by

20 Prosecution. Both sides have the opportunity to question a witness, test

21 the witness, test their memory, test their credibility.

22 In this case, these people are both two elderly women. Both have

23 been sickly. We have medical reports from doctors in each case, both of

24 them recommend that neither person attends. Both of these witnesses are

25 important to the case. They talk about murders being committed. They

Page 311

1 talk about timing. They talk about -- one of them speaks of conversations

2 with Croatian -- with soldiers who tell them that the Croatians in the

3 village are to be killed, that she is to be executed.

4 She identifies -- that's (redacted). She identifies the body of

5 (redacted). The other also saw bodies, also is corroborative as

6 to certain deaths.

7 The government or the Prosecution has to establish that certain

8 persons were killed. The timing of those killings, the perpetrators, and

9 also on the issue of consciousness or guilt, that certain acts were taken

10 to hide the bodies. And these witnesses explain each of those.

11 As I stated, they're both elderly. They both would have -- find

12 it difficult to come here. To go from -- from -- where they live in the

13 middle part of Bosnia to Sarajevo is an hour and a half. To go from there

14 and then to -- an hour and a half and a drive and then to get on an

15 airplane and fly for another two to three hours where these people have

16 brittle bones and they're -- and they suffer from certain physical

17 conditions is too much to ask, and we'd request that the video

18 conferencing be allowed.

19 Thank you.

20 JUDGE LIU: Thank you very much.

21 Since this matter is an urgent issue and we might hear these two

22 witnesses next week, so I believe that the Trial Chamber is in the

23 position to make a ruling on this issue.

24 We believe that those two witnesses are quite relevant to this

25 case and their evidence might be -- have some probative value to this

Page 312

1 case. And we also believe that the ill health is found to be a sufficient

2 reason to establishing that a witness is unable to come to the Tribunal to

3 appear as a witness.

4 The Trial Chamber is satisfied that the anticipated evidence of

5 those two persons in relation to the Prosecution's case is sufficiently

6 important to make it unfair to proceed without it. And the Trial Chamber

7 is satisfied that sufficient reason has been shown to establish that the

8 two witnesses are unable to come to the Tribunal.

9 So the ruling is the Trial Chamber therefore decided that the

10 testimony of those two witnesses should be heard by a video conference

11 link. As for the specific time, we hope that the Prosecution should get

12 in touch with the registrar as soon as possible to arrange the proper time

13 and inform the Trial Chamber as well as the other party as soon as

14 possible, since it is an urgent matter. It is so decided.

15 MR. WEINER: We'll make those notifications, Your Honour.

16 JUDGE LIU: Thank you.

17 The next issue is about the Prosecution's application for leave

18 to disclose Rule 66(A)(ii) material pursuant to the Trial Chamber's

19 decision of May 7th, 2004.

20 Under this filings also related to one particular witness, shall

21 we go to the private session or we could do it in open session? I'm in

22 your hands.

23 Ms. Chana.

24 MS. CHANA: Perhaps we ought to go into private session, Your

25 Honour.

Page 313

1 JUDGE LIU: No objections? Yes, I saw their nodding. So we'll

2 go to the private session, please.

3 [Private session]

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

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Page 316

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6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 [Open session]

12 JUDGE LIU: Well, I have to say that the Trial Chamber has a

13 general duty to ensure that the proceedings are not unduly delayed and

14 that the accused has adequate time and facilities for the preparation of

15 his defence.

16 We believe that the Prosecution has to show the due diligence and

17 good cause when requesting changes in its exhibit list at this stage of

18 the proceedings.

19 So there are some questions that I would like to put to the

20 Prosecution, that is -- the first one is: Why so late? Why was the

21 request for variation of the exhibit list not filed six weeks before the

22 starting of the trial?

23 Ms. Chana.

24 MS. CHANA: Your Honour, the exhibit list was necessitated. We

25 looked at it again after we had fine-tuned our witness list and we had

Page 317

1 withdrawn a lot of witnesses from our -- from our list and the motion is

2 pending before Your Honours.

3 And at the end of the day, Your Honour, we have added only 34 new

4 witnesses and we have taken away 17 -- exhibits. I'm sorry, Your Honour.

5 The other reason, Your Honour, is that some of these exhibits

6 came from new collections which we had received late last year. And this

7 is the ABiH collection, which is what we just referred to earlier on, that

8 it all -- was all put onto the EDS suite. So these new materials

9 necessitated some additional material to be put as exhibits onto an

10 exhibit list, hence the delay for these additions, Your Honour.

11 But we have compensated by taking some exhibits away. And as I

12 indicated earlier, Your Honour, there will be some which we have agreed

13 upon which, again, the Court will not be burdened with. And that is the

14 explanation as to the lateness of the exhibit list.

15 JUDGE LIU: I see. I wonder whether those exhibits has already

16 been furnished to the Defence or not.

17 MR. METTRAUX: We have received them half an hour before this

18 hearing, Your Honour.

19 JUDGE LIU: Before this hearing?


21 JUDGE LIU: So you are not in the position to give a thorough

22 response for each exhibit at this stage.

23 MR. METTRAUX: Absolutely not, Your Honour. In relation to the

24 substance of those exhibits, we stand by our submissions of, I believe,

25 the 24th of this month in relation to the admission of those exhibits.

Page 318

1 Insofar as their content is concerned, as we pointed out in our response,

2 we haven't had the time and we haven't had time obviously to look into

3 those new proposed exhibits at this stage.

4 JUDGE LIU: But -- but the Prosecution believe that those

5 exhibits will all have probative value and relevance, you know, to this

6 case, I believe.

7 Right, Ms. Chana?

8 MS. CHANA: Yes, Your Honour. I agree with you entirely in that

9 respect.

10 But the other thing I would like to point out is that the exhibit

11 lists had been filed and the Defence have had all the exhibits for some

12 time now. It is only the new additions, which I said which were some 34

13 documents which have been provided today. The rest of the documents,

14 which were already on the exhibit list, the Defence have had them and

15 they've had the documents themselves because we gave them hyperlinked. So

16 it is only 34 documents, Your Honour, which we have disclosed physically

17 today because we did it by motion.

18 JUDGE LIU: Well, only 34 documents. So that is a big amount of

19 documents. I don't know, you know, how thick each document is, but 34

20 documents is -- is a bundle of paper, you know, I must say. That will

21 take some time, you know, for the Defence to -- to leaf through it, you

22 know.

23 So we are not in the position to -- to make any decisions at this

24 stage, I believe that. I hope that the Defence could give their response

25 concerning of those 34 documents as soon as possible, and at the same time

Page 319

1 we also hope to be furnished with those, you know, 34 documents so that we

2 could be in a better position to make a decision as early as possible.

3 Is that agreeable?

4 MR. METTRAUX: Yes. We -- we shall undertake to do so, Your

5 Honour. We are quite concerned, however, that we will have to divert some

6 of our resources at this very, very late stage to do such a thing. And

7 this is quite concerning to the Defence, all the more so that the

8 Prosecution may attempt to tender some of those exhibits early in its

9 case. And this is definitely something we would like to place on the

10 record.

11 If Your Honour orders us to file further submissions in relation

12 to the substance of those exhibits, we shall definitely undertake to do so

13 and as -- as soon as we can. As early perhaps as Monday or Tuesday next

14 week.

15 JUDGE LIU: Thank you very much. We'll see how relevant those

16 documents are and how important, you know, they might be in this case.

17 MR. METTRAUX: Perhaps a short comment in response to this.

18 The problem the Defence is facing at this stage is that those

19 documents are being put forth by the Prosecution as new exhibits without

20 much information to the Defence as to how they may or are or are said to

21 be relevant to the Prosecution case. It puts the Defence in the strange

22 position of having to fight with a ghost in some sense and guessing what

23 those documents are here for.

24 I believe, with respect, that this would be a matter for the

25 Prosecution to address and to convince the Chamber that indeed there is

Page 320

1 good cause, not only in relation to the very, very, very late disclosure

2 of that material but also as to its relevance to this case and why some of

3 those documents were not identified earlier. The Prosecution has told us

4 about the majority of documents, which was found more than a year and a

5 half ago, which is a long time, and also a minority of documents, which

6 apparently have been found, identified by the Prosecution much before.

7 The Defence would find itself in a very strange position of

8 having to convince the -- the Prosecution perhaps, but the Trial Chamber

9 in any case that those documents should not be admitted at this late stage

10 without knowing exactly what they are for. We have seen the index to

11 those documents, and from some of those documents we seem to -- to know

12 what they are. But there are other documents which are totally new to

13 us. And we will have to -- we would have to prepare for those and be

14 ready potentially to cross-examine witnesses in relation to these

15 documents, and it is indeed a very, very difficult situation for us to do

16 so at this stage.

17 JUDGE LIU: Yes. A very good suggestion.

18 Ms. Chana, would you please file a filing listing that -- why

19 those documents were disclosed so late, whether you have been -- paid due

20 diligence to this issue and whether there's any good cause to have those

21 late disclosure at this time and how relevant those documents to each

22 paragraph account in the indictment.

23 MS. CHANA: Yes, Your Honours. The Prosecution will file such a

24 motion.

25 JUDGE LIU: I hope we could get that as soon as possible.

Page 321

1 MS. CHANA: How many days would you like it within, Your Honours?

2 JUDGE LIU: How about next Monday.

3 MS. CHANA: Next Monday it is, Your Honour.

4 JUDGE LIU: Yes. Thank you very much.

5 The next issue is the urgent motion for immediate disclosure. I

6 believe that almost all the issues in this motion has been dealt of --

7 dealt with, you know, in the previous discussions. If there's none, the

8 Defence counsel might remind me of anything.

9 Yes.

10 MR. METTRAUX: Thank you, Your Honour.

11 As Your Honour just pointed out, most of the issues in relation to

12 that urgent motion of the Defence of 16 December 2004 have now been dealt

13 with. There remain two, however, which require the Chamber attention.

14 The first one relates to a witness referred to as Witness X.

15 This witness, the Prosecution has now sought leave to withdraw this

16 witness from its list of witnesses. The Defence still thinks and submits,

17 however, that a finding of the Trial Chamber is still necessary in

18 relation to the material going to that individual.

19 First, the Defence has submitted and resubmits that this material

20 is clearly Rule 68 material. The Defence has reserved its right to make

21 further submissions pursuant to Rule 68 bis in relation to that matter.

22 There is another aspect relating to the abuse of the process in

23 relation to that motion, which is relevant.

24 Finally, if the material is what the Defence believe it could be,

25 is directly relevant to the credit or reliability of that witness or

Page 322

1 former witness, depending what the Trial Chamber decision is, it might as

2 well be relevant to the credit and reliability of other related witnesses

3 directly related to this one.

4 The second issue, which is still pending before this Trial

5 Chamber and which is of the utmost urgency for the Defence, is the

6 material concerning the status as suspect of each and every Prosecution

7 witness in this case, not only the witness we have been discussing before

8 but each and every one of them. And I again refer the Trial Chamber to

9 the order of November 2003 of the Trial Chamber in this case, which

10 ordered the Prosecution to give that material a long, long time ago to the

11 Defence.

12 JUDGE LIU: Well, I still cannot understand how the credibility

13 of a witness is related to the Rule 68. But that is a issue I might need

14 some research on that, you know. But at this moment, I fail to see the

15 relevance to the Rule 68. Maybe I'm wrong, but -- but I promise you I

16 will do some research in this respect.

17 As for, you know, other suspects, I doubt it very much whether

18 the Defence need that, if those people are not called as a witness. Why

19 should you need those, you know -- you know, features, their situations?

20 I couldn't understand that.

21 Yes.

22 MR. METTRAUX: I'm sorry, Your Honour, if I haven't been totally

23 clear on this matter.

24 I think it's become quite clear to this Trial Chamber that the

25 Defence has been suffering waves of late disclosure in this case. As a

Page 323

1 result of those successive waves of late disclosure, the Defence has been,

2 we submit, greatly prejudiced. And the Defence intends to seek proper

3 remedy either as a sanction to those violations or as a means of

4 protection from further violations from the Prosecution.

5 We believe at this stage that the finding from the Trial Chamber

6 that the material in question was and is exculpatory and should have been

7 disclosed months, if not years before, it's important to the Defence to

8 make those submissions and to obtain an adequate remedy in relation to

9 this matter.

10 Concerning Your Honour's question -- unfortunately, I am going

11 through my file -- but there is a decision of the ICTR Appeals Chamber in

12 relation to the issue of criminal participation and credit of the witness

13 which the Defence would be very happy to submit to the Trial Chamber in

14 due course, if so requested.

15 JUDGE LIU: Yes. Yes, please. Yes, please.

16 And I agree with the Defence that, you know, in this case the

17 late disclosure on matters, you know, involving the disclosure cost the

18 great inconvenience to the preparation of the case by the Defence.

19 As for the degree and how the accused was prejudiced against, and

20 I believe that the Trial Chamber needs an assessment on that issue.

21 But here we are doing all our best first to start the case.

22 Second, you know, to guarantee the legitimate rights of the accused. And

23 thirdly, we hope we could do everything to make up what we lost and what

24 is not insufficiently furnished before. We will see what we could do and

25 we'll see, you know, how far we could go. And at this moment I could only

Page 324

1 say that I am looking forward to the cooperations from the both parties

2 with good faith.

3 The next issue is the Prosecution's motion to vary its list of --

4 of witnesses. I'm surprised that the Defence objects to withdrawal of

5 eight witnesses. In other cases, you know, when the Prosecution proposed

6 to withdraw some witnesses from their list, these suggestions is always

7 welcomed by the Defence. But here we -- we see some objections from the

8 Defence.

9 Yes, Mr. Morrissey.

10 MR. MORRISSEY: Well, Your Honour, there's some witness who

11 appear to be directly relevant and material witnesses to events that are

12 controversial in the case.

13 Now, the -- the keynote witnesses in that regard were Zicro

14 Suljevic, S-u-l-j-e-v-i-c, and Rifat Bjelajac. They're both witnesses who

15 are eyewitnesses to meetings which are said to found command

16 responsibility. They're both people who were said to be members of the

17 inspection team -- well, they both -- in fact, that's not -- they're not

18 said to be. They were members of the inspection team, which inspection

19 team is said to be the -- the location from which Halilovic became a

20 commander.

21 JUDGE LIU: Well, since -- since I don't know about protective

22 measures for each witness, just please do not mention the names and

23 they -- and just show me some examples.

24 MR. MORRISSEY: Sorry. I will, Your Honour.

25 Very well. Well, concisely speaking, two of the witnesses are

Page 325

1 people who were direct participants in the -- in the functions that

2 Mr. Halilovic was carrying out, are directly relevant to his whereabouts

3 at specific times, a matter which despite Your Honour's comment on Monday

4 is not and, we think cannot be the subject of agreement with the

5 Prosecutor right now. They are witness who can give evidence about where

6 he was at particular times.

7 There's one matter pleaded in the -- in the indictment which

8 concerns the -- the gesture and the -- and the threat. Well, they're said

9 to be there. They're said to be right there. How could they not be

10 called by the Prosecutor?

11 The indication given--

12 [Defence counsel confer]

13 MR. MORRISSEY: Your Honour, just pardon me. Witnesses who --

14 [Trial Chamber and registrar confer]

15 JUDGE LIU: I'm sorry.

16 MR. MORRISSEY: Sorry, Your Honour.

17 It was the position of the Prosecutor that these witnesses in

18 particular were not to be called because they'd indicated that they didn't

19 want to come.

20 Now, there are obviously legitimate reasons why a Prosecutor will

21 withdraw many witnesses and most of the witnesses - and there have been

22 many that the Prosecution has withdrawn - we have no quarrel with. But

23 those two are witnesses who are central. Their names are mentioned many

24 times in footnotes to the original pre-trial brief. It will become

25 apparent that the same applies with respect to the expert witness that the

Page 326

1 Prosecution have sought to rely upon. And in short, they were central to

2 the indictment and to the earlier processes of this court, and we say

3 should not be withdrawn.

4 It's an unusual step for the Defence to submit that the

5 Prosecution discretion be interfered with, but the Defence can be exposed

6 by -- not necessarily deliberately so but to an unfair manipulation of the

7 witness list. And sceptical accusers, of which I'm not one, might

8 sometimes suggest that the Prosecution simply want [sic] to cross-examine

9 a witness who is not convenient for them. We do not make the allegation

10 here. We just simply say that they are both witnesses who should be

11 called.

12 Likewise, the presence of Mr. Halilovic being at issue -- there

13 are other witnesses who are relevant to that question. Admissions or

14 comments and accounts given by the accused man, Mr. Halilovic, whilst in

15 custody are at issue in this case. And one of those who had him in

16 custody is a relevant -- potentially relevant witness.

17 Witnesses who are able to comment about the investigation, the

18 timing of the investigation, and when the investigation was launched,

19 people who can say things about when the news came in, when the police or

20 authorities first became aware of what happened in Grabovica.

21 Witnesses -- central witnesses in short. Central witnesses really ought

22 to be called. And where the Prosecutor is making an allegation or is --

23 is withdrawing them for reasons which are manifest in respect of some of

24 these witnesses, we say nothing. But these witnesses -- and in particular

25 the two I mentioned initially -- were central to the indictment and they

Page 327

1 ought to be called.

2 And so it's for those reasons that we take what, I frankly agree

3 with Your Honour, is an unusual step in the unusual circumstances of this

4 case.

5 JUDGE LIU: Yes. But generally speaking, you know, how the

6 Prosecution to present its case and how many witnesses and whom to call is

7 entirely within the discretion of the Prosecution or the party calling the

8 witnesses. And if you believe that those, you know, witnesses are

9 essential to this case, you may call them as your witness in your case in

10 Defence.

11 MR. MORRISSEY: Your Honour, that -- with respect, that's always

12 an appropriate response, and it's a matter that -- and there are various

13 remedies to the Defence, including in some circumstances inviting the

14 Chamber to call the witness.

15 JUDGE LIU: Yes.

16 MR. MORRISSEY: But with particular reference to the two that I

17 mentioned and shouldn't have mentioned at the start of my submission, they

18 are witnesses who were absolutely central, and a brief perusal of the

19 Prosecution's original pre-trial brief will make it clear why -- how that

20 is and why it is. The Prosecution have sought leave to vary the list, and

21 it's implicit in that that leave is a matter that the Court grants and

22 does not simply do it because the Prosecution asks and does so, acting

23 judicially and considering all proper -- all the relevant matters.

24 The Prosecution's discretion is an important one and is not

25 likely to be interfered with, I concede. With respect to at least those

Page 328

1 two that I mentioned, they on their face - and we say on the face of

2 material - constitute a special case, and one where the Prosecution ought

3 to demonstrate good cause to the Court.

4 JUDGE LIU: Thank you.

5 Any response? Yes, Ms. Chana.

6 MS. CHANA: Your Honour, the Prosecution is grateful for your

7 observations at this regard, and we are completely in agreement with the

8 observations you made that it is prosecutorial discretion as to how we

9 submit the case and the witnesses we want to call. And if the Prosecution

10 feel that some witnesses might be economical with the truth, we are quite

11 within our rights not to call such a witness.

12 Your Honour, there's no resume that I can -- that the Defence has

13 referred to as to how the Prosecution can be forced to call certain

14 witnesses. They are quite entitled to call any witness they want from

15 the -- the witnesses that we have dropped from our witness list.

16 JUDGE LIU: Yes. But there are also seven new witnesses that you

17 want to add into the witness list. We just want to know why you added

18 those witnesses to the list at this late stage. Can you show us a good

19 cause for doing that?

20 MS. CHANA: If you give me a moment, please, Your Honour.

21 JUDGE LIU: Yes.

22 [Prosecution counsel confer]

23 MS. CHANA: Your Honour, we have added additional witnesses

24 because we have cut out two-thirds of our witness list and we felt that

25 there were some other witnesses which were necessary to prove the theory

Page 329

1 of our case. And these things are inevitable, as the Prosecution looks at

2 their case and finds there are some other witnesses which may have

3 probative value and enable the Chamber to establish the truth of the

4 matter. And that is the reason why these particular witnesses have been

5 added to the list. And I -- we, the Prosecution's position, is that

6 notice has been given of this to the -- to the Defence. They have -- have

7 had ample time to prepare for these new witnesses. And it is to assist

8 the Trial Chamber in coming -- in determining the truth.

9 JUDGE LIU: Thank you.

10 Yes, Mr. Mettraux.

11 MR. METTRAUX: Your Honour, very briefly.

12 JUDGE LIU: Please, very brief.

13 MR. METTRAUX: Very, very briefly.

14 Just to point out the fact that every single one of those

15 witnesses, I believe, although I have some reservation about the last one

16 on the list, but in any case the five major witnesses have all been

17 interviewed by the Prosecution in prior times. They were known to the

18 Prosecution. The Prosecution had statements of those witnesses. And they

19 were free to seek leave to add them to their list months, if not years

20 ago. They've decided, for good reason or bad reasons, never to do so.

21 We're now faced with another daunting task in addition to all the

22 others which we've discussed before, of potentially preparing for yet new

23 witnesses.

24 The Prosecution also, for the record, has been claiming for

25 months and probably for a year and a few months that they were ready for

Page 330

1 trial. Considering the making of such statements on repetitive occasions,

2 the Defence finds it quite difficult to understand that a month before

3 trial we should be faced with a new set of witnesses, new exhibits, a new

4 pre-trial brief, and an attempt to amend the indictment.

5 JUDGE LIU: Thank you very much.

6 I believe that this matter is quite an urgent matter, since we

7 are going to have our first group of witnesses next week. So the Trial

8 Chamber will consider the submissions from both parties and make a

9 decision as early as possible early next week, you know, to fix that, you

10 know, sliding sense or daunting target, you know, whatever, as the Defence

11 phrased it.

12 Well, I believe that's all, you know, for the motions at this

13 moment. As for the last matter, that is, you know, we get in touch with

14 the registrar and conveyed the views concerning of the seating arrangement

15 raised by Defence the last time.

16 The answer is that, you know, since it is the practice of this

17 Trial Chamber which follows to almost every trial, so the seating

18 arrangement should not be changed. And but we also are aware that the

19 Defence counsel will have full freedom to get contact with his client even

20 during the trial. So if there's something that the accused would like to

21 inform their counsel, he could put it down on a piece of paper and ask a

22 guard to pass to the Defence counsel and the Defence counsel, please feel

23 free to approach your client during the proceedings. This is what we

24 could do at this stage. I hope that will answer the request from Defence.

25 MR. MORRISSEY: Your Honour, that leave to approach is what I was

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1 going to ask for in the alternative. We're grateful for that indication.

2 JUDGE LIU: Thank you very much.

3 So I hope that both parties could meet again after this sitting,

4 and I'm expecting a report on the areas that parties has agreed upon as

5 well as a witness list for the -- at least for the next week.

6 Are there any other matters that the parties would like to bring

7 to the attention to me?

8 Yes, Mr. Mettraux.

9 MR. METTRAUX: Yes, Your Honour. Very, very briefly once again.

10 It's an issue that relates to the indictment. The Prosecution

11 late last year filed what was known as a supplementary explanation to its

12 pre-trial brief.

13 As I pointed out earlier, this supplementary explanation was

14 subsequently rejected by the Trial Chamber. Within that supplementary

15 explanation, there is a suggestion that the notice or the alleged notice

16 received by Mr. Halilovic took place on the 8th or 9th or September, 1993.

17 The matter was raised again during the Rule 65 ter conference of

18 7 January, where the Defence pointed that issue and the contradiction

19 between the tentative or attempt at amending the pre-trial brief by the

20 Prosecution -- and the face on the indictment, which only mentioned the

21 8th of September 1993.

22 The Senior Trial Attorney for Trial Chamber III at the time

23 indicated to the Defence that the Defence was entitled to proceed upon the

24 basis of the indictment, that is, upon the pleadings which are clear on

25 their face, that such notice was -- was alleged to have been given on

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1 the 8th.

2 The Prosecution in its supplementary explanation indicated that

3 it may or may not decide to seek leave to amend the indictment. We've now

4 been informed that the Prosecution would not seek such leave to amend the

5 indictment. The Defence wants to make it very clear and to put it on the

6 record that we do not consider having received any sort of notice on the

7 part of the Prosecution that this new case, which is not pleaded in the

8 indictment, is part of the Prosecution case, the supplementary explanation

9 having been rejected and the Prosecution having decided not to seek leave

10 to amend the indictment, Your Honour.

11 JUDGE LIU: I believe this matter was mentioned during the last

12 Status Conference presided by Judge Kwon, I suppose. Can I seek some

13 confirmations on the part of the Prosecution.

14 MR. RE: Certainly, Your Honour.

15 The position is quite clear. Judge Kwon mentioned quite correctly

16 that it's a matter of evidence. It's not a material particular of the

17 indictment. We have made it very clear to the Defence that we will be

18 calling conflicting evidence from different witnesses many years after the

19 event as to whether or not he received notice on the 8th or the 9th. We

20 are not in a position at this stage to elect at this stage whether it is

21 the 8th or the 9th. We have foreshadowed that to the Defence. We did it

22 last month, a good six weeks before trial in our attempt to file a

23 supplementary explanation.

24 The Defence have all the relevant statements. They know that

25 some witnesses will say it was the 8th and some will say it was the 9th.

Page 333

1 This does not in any way prejudice the accused because the accused has

2 been on notice for a long time of the conflict in the Prosecution

3 statements.

4 It's not a case where the date is a material particular of the

5 pleading, such as in one where a crime is gazetted from a certain day or a

6 statutory sexual assault charge where age is in issue or something like

7 that. The position of the Defence clearly in their pre-trial brief,

8 wherever -- whatever the status of that is at the moment, is that the

9 accused, Mr. Halilovic, was not there and was not informed. So it doesn't

10 matter from the perspective of the Defence preparation.

11 The Prosecution foreshadowed that it may intend or may wish to

12 amend the indictment to put in the words "8th" -- either "8th" or "9th."

13 His Honour Judge Kwon made it clear that this was not necessary because at

14 any time during the proceedings an indictment can be amended on such a

15 matter. And at the end of the proceedings, the Trial Chamber can make a

16 finding based upon the evidence, whether it was the 8th or the 9th.

17 That's part 1.

18 Part 2, in relation to the status of that supplementary

19 explanation, the intended purpose of our filing that was simply to give

20 the Defence good and adequate notice of the emphasis in the theory of our

21 case. That is all. And to ensure that there was -- they had no prejudice

22 in their preparation as to the emphasis of the theory of our case, based

23 upon the pre-trial brief, the indictment, and everything which has been

24 served on them. So that we say that the emphasis is on the failure to

25 prevent and the use of the troops of the 9th and the 10th in Grabovica.

Page 334

1 The evidence has not changed. It's just that the submission the

2 Prosecution will make, I anticipate, at the end of the proceedings may be

3 slightly different.

4 Now, whether or not the Defence chooses to take the view that

5 they are not on notice because the Trial Chamber has said it is -- has --

6 has rejected the filing on the narrow basis that it was not a proper

7 addendum with proper leave sought to the pre-trial brief is irrelevant.

8 The Prosecution maintains the Defence is entirely and fully on notice from

9 the day we served it of the way we intend to open the case and argue the

10 case on exactly the same evidence, whether you call it a supplement, a

11 letter of notification, or whatever you will.

12 Those are my submissions.

13 JUDGE LIU: Thank you very much.

14 MR. METTRAUX: Shortly, Your Honour.

15 JUDGE LIU: Very briefly.

16 MR. METTRAUX: Very briefly. Just to mention the exact quote

17 from Judge Kwon at the latest -- the last Status Conference. And I quote

18 his word: "The Defence is entitled to understand the nature of the case

19 and whether you intend to amend the indictment. Could you do that in a

20 week's time from today?"

21 Clearly the indication was that if the Prosecution continues to

22 be the one which was attempted in the supplementary explanation of

23 December, they have an obligation. And the submissions of the Prosecution

24 are quite incorrect. The Rules provide for the ways and methods in which

25 you give adequate notice of material fact. The time of notice of an

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1 alleged crime and the alleged notice is a crucial material fact. And if

2 indeed this is part of the Prosecution case, this can be pleaded in only

3 one place, and it's the indictment. And if it is still the Prosecution

4 case that this is part of its case, it can't be pleaded or mentioned

5 simply in a supplementary brief which has been rejected or otherwise in

6 the opening statement. It has to come through a motion to amend the

7 indictment.

8 JUDGE LIU: Well, no matter whatever Judge Kwon said and no

9 matter whatever the positions held by both parties, I would like to say

10 that in my view it is very difficult to fix a date on certain things which

11 happened about ten years ago. So I regard this matter is a matter of the

12 evidence, not a matter of the charge. It is so decided.

13 Yes. Are there any other matters?

14 Yes, Mr. Morrissey.

15 MR. MORRISSEY: Thank you, Your Honour. There's just a

16 housekeeping matter that sometimes troubles the Defence and may do so in

17 this case. We have been assisted by the Registry and the CLSS

18 interpreting and translating service and assisted greatly by them, but we

19 still have a significant quantify of material outstanding which that

20 service is attempting to deal with for us.

21 When it creates a problem, we will let the Court know, but we

22 don't want to complain on the morning and seem to have just invented a

23 problem. So we mention that there's still, we think, something in the

24 order of 30 per cent of documents that remain to be dealt with by them,

25 and we can indicate that there's some outsourcing arrangements being

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1 sought, and we are trying to do what we can to deal with that. But should

2 we apologise to the Court in the future and say that we -- we are short of

3 a document, that may be one of the reasons and I mention it now. Without

4 any criticism to the Registry, because they are doing absolutely

5 everything they can.

6 JUDGE LIU: I see. I believe that our trial will be in session

7 from next week, so all the translations in this trial should be put on the

8 list of priority. And if there's any problems concerning with the

9 logistic issues as well as translation, please let us know as soon as

10 possible. This Trial Chamber will do its best to help both parties,

11 especially the Defence, to prepare their case.

12 MR. MORRISSEY: Yes, Your Honour. Thank you for that indication.

13 That will help.

14 JUDGE LIU: Thank you.

15 So next Monday we'll start with the opening statement by the

16 Prosecution at 9.00. That opening statement will last two hours to two

17 and a half hours. No objections is allowed as well as comments.

18 If the Defence would like to make their opening statement at that

19 time, they could do so, but in most of cases they will do that at a later

20 stage, when they have a better picture of the Prosecution's case.

21 Having said that, I declare the hearing is adjourned.

22 --- Whereupon the Pre-Trial Conference adjourned

23 at 2.48 p.m.