Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1

1 Friday, 13 May 2005

2 [Open session]

3 [The witness entered court]

4 [The accused entered court]

5 --- Upon commencing at 9.01 a.m.

6 JUDGE LIU: Call the case please, Mr. Court Deputy.

7 THE REGISTRAR: Good morning, Your Honours. This is Case Number

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

9 JUDGE LIU: Thank you.

10 Good morning, ladies and gentlemen.

11 Good morning, Witness.

12 THE WITNESS: Good morning.

13 JUDGE LIU: Did you have a good rest yesterday?

14 THE WITNESS: Yes, thank you.

15 JUDGE LIU: Thank you.

16 Well, Mr. Weiner, do you have any re-direct examination?

17 MR. WEINER: Yes, just brief, Your Honour.

18 JUDGE LIU: Yes, please.


20 [Witness answered through interpreter]

21 Re-examined by Mr. Weiner:

22 Q. Good morning, Doctor.

23 A. Good morning.

24 Q. Yesterday on page 69 you were asked about the possibility of the

25 victims being killed by explosive devices or hand grenades and you

Page 2

1 answered no. The first thing I would like to ask you about is you were

2 asked about artillery and your answer isn't clear. Were any of these

3 individuals killed as a result of artillery devices or bombs or whatever?

4 A. When we're talking about artillery weapons, what I mean by that

5 is that that artillery weapon, once it hits the place that is the target,

6 it explodes. And in that sense, we differentiate between explosive

7 wounds and not artillery wounds in forensic medicine. On the other hand,

8 there are artillery guns of smaller calibre which are used for

9 anti-aircraft defence. It's that type of artillery. Therefore, your

10 question is not specific enough, it's not precise.

11 As far as the projectiles which cause an explosion once they hit

12 the ground, such explosive wounds were not found on these 27 bodies. And

13 I also did not find that there was any activity by larger projectiles

14 because these type of wounds look completely different on the body.

15 Q. Well, that was my next question. Had you ever performed

16 autopsies prior to September 1993 where victims had suffered wounds from

17 -- explosive-type wounds or wounds from artillery?

18 A. Yes, those were very common causes of death because people would

19 enter a minefield or they would die from shelling. So in my work I did

20 have such cases.

21 Q. And just could you tell us, what's the level of difficulty in

22 distinguishing between explosive-device wounds and those caused by

23 bullets?

24 A. Mr. President, in order to answer this I would like to refer to

25 my drawing, if I may be allowed to do so. If I could have that on my

Page 3

1 computer screen, please.

2 MR. WEINER: That's P413.

3 Q. Sir, you have the pen in your hand. Are you planning to draw?

4 A. [In English] No, just to show. No, just to show what I already

5 tell.

6 [Interpretation] As I have shown here in the left-bottom corner,

7 right here, when there is fragmentation and when these fragments enter

8 the body, on the borders of the wound we can see dirt, as a result of the

9 fact that the fragments of the explosive device are smeared with

10 gunpowder particles. Also, the wound is of an irregular shape and in the

11 depths of the wound we can see numerous contusions.

12 There is another characteristic of an explosive wound. It is

13 very difficult to find one wound. On the body of a person we will always

14 find more than one wound which are due to the action of the fragments of

15 such an explosive device. And given the nature of the explosion, these

16 wounds are found in a close group and it is very easy to determine the

17 direction from which the explosion came, i.e., the place where the

18 explosive device was. In other words, explosive wounds are very typical

19 in more than one way and it is very easy for forensic pathologist to

20 recognise them.

21 Q. Thank you. Thank you, sir. Now, yesterday on page 45 you were

22 asked about contusions to the left ear and you answered: "The contusions

23 can be seen much better on the original photographs."

24 Do you have those original photographs with you and can you show

25 them to us?

Page 4

1 A. Could you please give me the number.

2 Q. Sir. Number 23.

3 A. 23?

4 Q. Yes, Doctor.

5 A. Yes, I have them. When I used this technology, there is

6 reflection of light, so the picture is not really very clear. Maybe this

7 photo should be scanned or maybe the original should be shown. I don't

8 know. This technology does not lend its to very good interpretation.

9 Q. Well, sir, if we all approached you with the picture, is it

10 better visible on that photograph?

11 MR. WEINER: Your Honour, could we approach the witness?

12 JUDGE LIU: Yes.

13 MR. WEINER: Or could the witness approach the Judges and then

14 the counsel? However you want to do it, Your Honour.

15 JUDGE LIU: Well, you may show that picture to the Defence and

16 then put it to the witness.

17 MR. MORRISSEY: There's no objections at all to the Court having

18 a look. I should raise this, Your Honours. It does raise an issue that

19 ought to be addressed, and that is if the Prosecution proposes to rely on

20 a particular photograph, that's the one we should really on. Frankly,

21 that is a much clearer photo.

22 JUDGE LIU: Yes, I agree with you.

23 MR. WEINER: Your Honour, we'll have to have it scanned in. But

24 could we approach the witness and have him demonstrate?

25 JUDGE LIU: Yes, of course.

Page 5

1 MR. WEINER: But apparently it's not working on the -- could Your

2 Honours approach and all counsel approach. Because at this point we

3 can't do it by ELMO.

4 JUDGE LIU: Well, I believe I've seen that picture already and

5 you just do whatever it is. We know.

6 MR. WEINER: Okay. If they twist it it's working.

7 Q. Could you please show us the cutting line or whatever you were

8 referring to yesterday -- you said it was better -- you could better see

9 the contusion.

10 A. I showed this yesterday on the copy. This is the cutting edge

11 which is lost in the hair and is not very well visible. And then we see

12 it posteriorly. This part is not so well visible because it is a lateral

13 and a posterior, and this part here is part of the earlobe that is

14 preserved. At the bottom of this cut and on the borders, you can see

15 tissue which is contused.

16 Q. Thank you. Do you have any other photographs that would also

17 assist on this?

18 A. Yes, but it is almost an identical photo which would not tell us

19 anything new.

20 Q. Thank you.

21 MR. WEINER: Your Honour, we'll try and scan them or have them

22 copied as best we can.

23 Q. Do you have the original negatives to those photos?

24 A. I don't think so.

25 Q. Thank you. And finally --

Page 6

1 MR. MORRISSEY: May I just raise one matter. Sorry, I don't mean

2 to interrupt.


4 MR. MORRISSEY: Could the Defence please be provided with a hard

5 copy of the scanned photograph when that's done for our future purposes.

6 JUDGE LIU: Yes, of course.

7 MR. WEINER: Absolutely.

8 [Trial Chamber and registrar confer]


10 Q. All right. Now, sir, finally on pages 63 to ...

11 JUDGE LIU: Oh, I'm sorry, you may proceed.

12 MR. WEINER: No problem, Your Honour.

13 Q. Finally on pages 63 to 65 you were asked about having not

14 performed certain tests such as swabbing and analysis of gunpowder,

15 recovery and analysis of the bullets, internal analysis of the path of

16 the bullets. Would these analyses have changed your opinion as to the

17 cause of death of those individuals?

18 MR. MORRISSEY: Well, I would object to that question. The issue

19 is -- it's not a question of whether the analyses would have changed the

20 opinion. It depends on what the analyses says, one might infer. But in

21 any event it's a question that seems to be entirely speculative, so I

22 object to it.

23 JUDGE LIU: Well, I believe this question is the natural course

24 following up with the previous one you asked in the proceedings. So in

25 this sense, this question is allowed.

Page 7

1 MR. WEINER: Thank you, Your Honour.

2 THE WITNESS: [Interpretation] I've already said in my testimony

3 that the wounds on the body are of such a nature and characteristics that

4 an additional analysis and especially pathological, histological analysis

5 would not shed any new light, nothing that is not already known in

6 medical literature. Obviously the analysis of gunpowder particles would

7 be useful if this was compared with the weapon that may have been

8 involved in the crime. This would serve to positively establish which

9 weapon was used to fire.

10 As far as my part is concerned, the part that was relative to the

11 cause of death, the analysis in question would not provide me with

12 anything new -- any new information that would have served to change my

13 opinion.


15 Q. Thank you, Mr. Witness.

16 MR. WEINER: Thank you, Your Honour.

17 Questioned by the Court:

18 JUDGE LIU: Witness, I appreciate your testimony very much since

19 I am a layman in this field. So I benefitted a lot from your testimony,

20 especially that drawing. I just have a general question for you.

21 Judging from the wounds on the deceased, can you establish whether the

22 wound was inflicted purposely or incidentally?

23 A. No, Your Honour. This cannot be told from the wounds. This is

24 why in forensic pathology when dealing with the cases of murder almost

25 always during the trial have the so-called combined expertise where we

Page 8

1 analyse the facts that the ballistic experts have to deal with. They

2 record all the physical evidence found on the spot such as different

3 traces on the walls, the place from which the bullets were fired and

4 where casings were found. After that, what we do is reconstruction of

5 the crime. During the reconstruction the initial part of an on-site

6 investigation involves the measurement of the distance between the body

7 and the evidence. And this part is very important to establish the

8 direction and the distance from which the projectile had been fired as

9 well as the position and relationship, physical relationship, between the

10 victim and the perpetrator.

11 And finally, we do the so-called combined forensic expertise

12 which involves ballistic experts and forensic pathologists. And during

13 that stage, a -- certain assertions by the perpetrator are either

14 confirmed or rejected.

15 JUDGE LIU: Thank you. And just one more question. Can you

16 establish the time or time frame when the wounds were inflicted by

17 examining the wounds on the bodies of the deceased?

18 A. What we can establish with precision is whether a wound was

19 inflicted during the life of the deceased or post-mortem. This can be

20 concluded based on the appearance of the wound and the so-called vital

21 reactions along the borders of the wound. After the death, after the

22 blood flow no longer exists, such traces disappear completely and the

23 wound looks completely different. This is something that can be

24 established for a fact.

25 JUDGE LIU: But you could not say for sure that the wound was

Page 9

1 inflicted 24 hours ago or a week ago?

2 A. No. This can be done indirectly by looking at the body and the

3 stage of its deterioration. Because it is well-known that death spots

4 appear some three or four hours after death, rigour mortis sets in some

5 one or two hours after death. These are the signs that appear on the

6 body which we use not for the precise determination of the time of death

7 but just for an orientation.

8 Also, we can measure the internal temperature of the body and

9 also in forensic pathology we use maggot larvae because it is well-known

10 how long their biological cycle of multiplication is. All these are

11 methods which help us to establish indirectly how much time passed

12 between the time of death and the examination of the dead body.

13 JUDGE LIU: Thank you.

14 Any questions out of my questions? I see none.

15 At this stage, are there any documents to tender?

16 MR. WEINER: Yes. The autopsy reports. The autopsy reports

17 start at page 1 and run approximately 154 pages. The first eight pages

18 of the autopsy report are various letters. I looked at it last night -

19 from different people. Those aren't necessary. Page 9 that has the

20 lists of those persons who were examined and the dates of birth, that's

21 really the first page of -- that should be considered because it lists

22 the victims in order. So we would ask that MFI 409 be admitted from page

23 9 to 154 and we not consider the various letters from different people.

24 JUDGE LIU: Any objections?

25 MR. MORRISSEY: No, Your Honour, that seems to be a pragmatic

Page 10

1 approach. We don't require them to be removed. They just have nothing

2 much to do with the evidence. And otherwise there is no objection to

3 relevant material.

4 JUDGE LIU: Thank you. That report is admitted into the

5 evidence.

6 I guess there's no documents from the Defence side?

7 MR. MORRISSEY: No, Your Honour.

8 JUDGE LIU: Well, Witness -- yes?

9 MR. WEINER: There is actually one more matter. The witness was

10 given by Defence a photograph last evening -- oh, at the end of the day

11 to see whether he recognises the photograph and I don't know what the

12 answer is.

13 JUDGE LIU: Yes.

14 MR. MORRISSEY: Yes, Your Honour, you'll recall -- there was a

15 photograph that was in the book of photos provided by the Defence and

16 when I started to question the witness about it he wasn't sure that he

17 had ever seen it before. Perhaps it would be appropriate if I could ask

18 the witness one question about that.

19 JUDGE LIU: Yes.

20 Further cross-examination by Mr. Morrissey:


22 Q. Doctor, pardon me to renew the cross-examination now. You recall

23 a photograph was given to you yesterday. Do you have any recollection of

24 seeing it or any comment you can make about that particular photograph?

25 A. I made an effort yesterday when I came back from the Tribunal and

Page 11

1 I found this photo among the originals. And I apologise to Mr. Morrissey

2 for this and I would like to point out that this is one of the photos

3 that are identical to the original and they concern Mrs. Anica

4 Stojanovic, number 26.

5 Q. I'm very grateful for that.

6 MR. MORRISSEY: Your Honour, since that's been identified, I had

7 a question that I wanted to ask about it. The Prosecutor should of

8 course be entitled to re-examine on it if need be, but what I be

9 permitted to do that in light of the answers?

10 JUDGE LIU: Yes.

11 MR. WEINER: No objection.

12 MR. MORRISSEY: Thank you very much.

13 Q. Doctor, sorry to bite the apple a second time here. But could I

14 just ask you this. Now that you have that photograph, I'm grateful to

15 you for finding it, what does that indicate? Is it an entry wound? Can

16 you indicate whereabouts?

17 A. An entry wound.

18 Q. Can you indicate -- although you didn't perform an internal

19 examination of Anica Stojanovic, can you indicate what -- given what you

20 know about the entry and the exit wound, what vital organs inside the

21 body were endangered by that wound?

22 A. As I can see, one can say that the endangered organs are the

23 liver, the lower part of the lungs, in other words some vital organs.

24 Q. Yes. Now, I understand that you didn't perform an internal

25 examination, but it's at least possible that that injury itself was a

Page 12

1 fatal injury, likely to lead to death without any others. Is that

2 correct?

3 A. Yes, it is correct.

4 Q. All right. And just finally, it's evident to you that that

5 injury by virtual of its characteristics was an injury inflicted during

6 life or at least when the body was capable of responding to the injury.

7 Is that correct?

8 A. Correct.

9 MR. MORRISSEY: Those are the questions I had. Thank you very

10 much.

11 JUDGE LIU: Thank you.

12 Any questions out of this picture?

13 MR. WEINER: No. I'd like just the ERN number for that photo. I

14 think it's --

15 MR. MORRISSEY: Yes, of course. Sorry, Your Honour. The ERN

16 number is 0361-7475. Now, I just want to be sure that it's in the book

17 that Your Honours have that was tendered, otherwise I'll tender it

18 separately. It's in my book but -- so that's the number 0361-7475.

19 JUDGE LIU: Yes.

20 THE REGISTRAR: Mr. Morrissey, we have that in the collection of

21 photos.

22 MR. MORRISSEY: I'm grateful for that. Thank you.

23 JUDGE LIU: Thank you.

24 Do you have any questions?

25 MR. WEINER: Yes, just one brief one.

Page 13


2 Further re-examination by Mr. Weiner:


4 Q. Sir, you indicated that there was a gunshot wound to the head and

5 there's one to the body, which is the one that you just saw. From

6 looking at those wounds, can you determine which one came first?

7 A. As I've already said to the Presiding Judge, it is very difficult

8 to establish that just by looking at the wounds. What I can say for a

9 fact is that both entry wounds and both exit wounds were inflicted during

10 the life of the person because there is a vital reaction on the body.

11 If you want me to give you another opinion, I believe that during

12 the incident the first wound to inflict -- to have been inflicted was the

13 one in the chest. Although the vital organs were endangered, the victim

14 may have survived and remained living for a while. After the head

15 injury, the head injury caused an instant death because most of the head

16 had been shattered and the brain had been destroyed. And that is why I

17 believe that in the course of events the first wound that was inflicted

18 was the wound in the chest and in the back. And then the next wound was

19 the one on the head.

20 Q. Thank you, sir.

21 JUDGE LIU: Thank you, Witness, for coming to The Hague to give

22 your evidence. We appreciate you coming very much. Madam Usher will

23 show you out of the courtroom and we wish you a very pleasant journey

24 back home.

25 THE WITNESS: [Interpretation] Thank you, Your Honour.

Page 14

1 [The witness withdrew]

2 JUDGE LIU: As I promised you yesterday, we'll give some time to

3 Defence to present his harsh argument.

4 MR. MORRISSEY: Your Honour, it's amazing how a night's rest can

5 get rid of harshness and leave us with an argument, which I will attempt

6 to present in a sensible way rather than harshly.

7 Your Honours, what we propose to do this afternoon is to file a

8 -- some written arguments. Formally we'll do it by way of a motion

9 because that gives everyone the opportunity to deal with it. Probably in

10 a reality it's a response to Prosecution's intention expressed by my

11 learned friend to tender a part of a report. So we'll do that in

12 writing, but I have to really place on record some of the concerns that

13 we have so that the Prosecutors know if it's not entirely clear in our

14 written submissions what our concerns are so that the Tribunal knows what

15 is at issue.

16 By way of introduction, these are just introductory remarks, I

17 would say this. The witness Mr. Ridgway has been engaged in this matter

18 for over two years and his report was provided to the Defence long ago.

19 At the time it was provided, it relied upon a great deal of material that

20 was provided by the Prosecutor. That expert material was given to the

21 Prosecutor along with a brief and some requests as to what he should give

22 his opinion about.

23 Now, Your Honours, everything's changed in respect of that. The

24 Prosecutors decided not to call a great deal of that material.

25 Furthermore, so that the statements upon which his evidence rests have

Page 15

1 been -- many of them have been withdrawn, more than half in fact have

2 been withdrawn. Likewise, a great deal of the exhibits -- or the of the,

3 if you like, orders, documents, articles, and so on which were provided

4 to him have not found their way into evidence and have nothing to do with

5 this case. On that basis he provided an opinion on the -- on that

6 material.

7 So what you have is an opinion from Mr. Ridgway that's based on a

8 certain set of facts, certain matrix of factual material. Now the

9 Prosecutors by the letter that we've been provided with and by some

10 answers by Mr. Re in court yesterday have indicated that this witness

11 will still give the same opinion even if the factual matrix changes. And

12 they assert that even though they haven't talked to him about it.

13 Now, you would be very concerned if any such witness, whether an

14 expert or not an expert, exists in the world, in other words that their

15 opinion is going to remain the same regardless of the changes in the

16 evidence or the evidential basis for those opinions.

17 Now, when it's asserted by the Prosecutors here that Mr. Ridgway

18 is going to say the same thing, we're very concerned by that because we

19 think most witnesses -- well, not witnesses generally but expert

20 witnesses who are here to give opinion evidence give the opinion after

21 they've considered the evidence. But in this case we have a different

22 situation being asserted by the Prosecutors that he's going to give that

23 opinion even though he hasn't seen the new material or is not aware of

24 the new material and hasn't received any of the new material such as has

25 arisen in the course of the trial.

Page 16

1 So we are very concerned about what nature of expert we are

2 dealing with here. Is it a person who brings an opinion first and then

3 gets the evidence to justify that opinion, or is it a real expert who

4 looks at the evidence and then forms an opinion? And it's the reason why

5 I asked for clarification yesterday from Mr. Re as to whether Major

6 General Ridgway has an idea of what's coming his way and whether he

7 agrees with the things that have been said in court here. Because quite

8 frankly, they want to call him on the 25th. That's 12 days away, and at

9 the moment they're not telling this Court -- the Prosecutors are not

10 telling you that he has agreed to give any such evidence at all. What

11 the Prosecution in that letter have told you what they expect and hope he

12 will say.

13 But -- there's number of criticisms that can be made about that

14 position but the most fundamental one is that that's just not going to

15 assist the Tribunal in any way. Because in the future you're going to be

16 presented, if the Prosecution account is accurate, with an opinion of a

17 witness who's just going to readjust the evidential basis for a

18 pre-existing opinion. Now, that cannot be right. That cannot be

19 allowed.

20 And that's an initial introductory criticism here and it's one

21 which we take very seriously because what it's really presuming that the

22 opinions are given and that the evidence for the opinion doesn't matter.

23 Now, we're very concerned about it. We don't think that the Prosecution

24 are bringing a proper approach to bear on the calling of this witness.

25 Now, we've got some substantive issues that we have to raise

Page 17

1 about that of course as well -- actually, before I come to the

2 substantive ones there's one more procedural one. We want to make it

3 quite clear that it is an unacceptable position to advance for the

4 Prosecutors that this man be called for one day on the matters that he's

5 going to testify about. I could indicate that prior to the Prosecutor

6 adding the new things they want to lead from this witness, I would have

7 taken four days with this witness.

8 Now, I would have done that because he deals with expert material

9 and that he would therefore have to be confronted with document after

10 document. If he hasn't been shown the full range of documents, he would

11 be confronted with those. In addition, where he's relied upon statements

12 by witnesses who did in fact give evidence here, he would have to be

13 confronted with their specific answers, and I have in mind particularly

14 the evidence of Mr. Karevelic but also the evidence of Jusuf Jasarevic;

15 Nermin Eminovic, and the SVB witnesses; Selmo Cikotic, the commander of

16 Operations Group Zapad; and a number of other military -- of the more

17 senior people who had testified in this case. And I would be sued for

18 incompetence if I didn't properly confront him with that material because

19 we think -- obviously the Defence has got a lot of things to say about

20 him. But at the very least, that's what I would have to do.

21 The suggestion that we can deal with him in one day is not

22 sustainable. The suggestion that we could deal with him in two days is

23 simply not sustainable either. I have to deal with this man properly.

24 Some witnesses you can tell a -- you can crush down the evidence a little

25 bit. We did it with Mr. Karevelic because we didn't want to have a gap

Page 18

1 there. So the Defence got a day effectively -- effectively a limited

2 period of time to cross-examine Mr. Karevelic. But it's different with

3 an expert. You've got to put the case to him properly. It's not a

4 question of us being wordy or lengthy, we just need that period of time.

5 I'm not aware of any other case at this Tribunal where a military expert

6 has been called on this basis that the Prosecutor wants to call, whereby

7 they give you half of a report with most of the evidence taken out that

8 they don't like; Some extra material is led from the witness which we've

9 got no notice at all; and then the Defence is given a couple of hours to

10 cross-examine so an important person can go about his important business,

11 leaving the accused in the position that he is now.

12 It is in my submission not to be taken seriously that the

13 Prosecution should have a day, even if it's an extended session, to

14 cross-examine this person. And we're very concerned about it. We think

15 the Prosecutor knows that that might be accepted by the Court -- I'm not

16 presuming what ruling Your Honour might make about it, but what I'm

17 putting is that we're very concerned that the Prosecutors are setting up

18 a situation where they'll argue they can bring an expert in rebuttal

19 rather than bring it in their case now. And we're very worried about

20 that. In other words, that they would now say to the Court, well, we

21 can't call Mr. Ridgway. We're not able to call him because he can only

22 come for one day and that's not acceptable, so we just won't call him and

23 then seek later on to say, oh, but now we can. So we're very worried by

24 that.

25 Obviously it's a matter of concern to the Defence because all

Page 19

1 through this case there's been the question of this expert, all along

2 there's been a hanging question: What's he going to say? Is he going to

3 be called at all? And now we've come to this incredible position at the

4 end of the Prosecution case which you couldn't have predicted in the

5 past, that we would find ourselves here, now, where the Prosecution are

6 telling us that they still want to call him; they haven't spoken with

7 him; they don't know if he agrees with the report that they propose to

8 tender, which is a report effectively edited by Mr. Re and not by the

9 witness. So in short, that timing issue is one that is of real concern

10 and one at the moment is an unacceptable argument.

11 Now, the next thing I want to put is that the Prosecution have

12 got to comply with some basic fundamental requirements when they lead

13 expert evidence. They've got to give you a report. The reason for that

14 is so that the Chamber and the Defence can respond to that report,

15 prepare cross-examination, brief experts, deal with experts, assemble the

16 material to be put to the witness. All of those things. But now we're

17 confronted with this amazing situation, frankly, that we're going to be

18 dealing with Ramiz Delalic next week, potentially Mr. Alispahic, if he's

19 coming, after that. And then we'll come to the expert. And really,

20 we're going to be busy. I personally am going to be very busy at that

21 time. Naturally, we have prepared some cross-examination for Mr.

22 Ridgway. We did that a long time ago. We still don't know what he's

23 going to say. When I come to the substance of the Prosecutor's letter,

24 well I'll indicate to the Court the new things that are coming and we

25 still don't know what they are; we just know there are categories of

Page 20

1 things. So that's the first thing. We need a report. We need something

2 to work with. We need it to have spelled out and it has to have

3 footnotes and it has got to be sourced.

4 Your Honours, it's fundamental when experts are called that they

5 give evidence about something that's a proper field of expertise and

6 that's got to be spelled out. And it's not proper to call someone to

7 give evidence about international humanitarian law. The expert in that

8 field is Your Honour and your colleagues on the Bench. And it's

9 precisely that issue that you are the best place to judge and have to

10 judge. Of course, military experts can give helpful evidence outside the

11 normal experience of the Tribunal and which can assist you in particular

12 fields, for example relating to military structures and so on; perhaps in

13 relation to local practice they can give that evidence. A British

14 military expert might be able to give some evidence about British

15 military practice and that might be of some assistance to the Court. But

16 that issue has got to be dealt with. And at the moment we've got a

17 substantive objection which will be in the motion.

18 But when dealing with expert evidence, Your Honours, it's

19 crucially important that that be testable. It's got to be testable. The

20 factual basis of the opinion has to be available for scrutiny. Without a

21 report, it's not. The current report, even if it was cut in the way that

22 is proposed by the Prosecutor, would still be based upon a factual matrix

23 of statements by witnesses and materials which may or may not be in

24 evidence in the form in which was viewed by General Ridgway at the time

25 he compiled his report two years ago.

Page 21

1 Now, we very much doubt that he'll have time to look at this

2 material properly. We think that what is likely he'll come along here

3 ill-prepared and unable to deal with the sort of questions because he

4 won't have time to prepare it. If he's not able to have time to spend in

5 court answering questions, it's hard to imagine that he will have time to

6 read the transcripts of evidence that were here and look properly at the

7 material provided to him. Nor has the Prosecutor said anything to

8 indicate to the contrary and it seems incredible that it would be so.

9 Now, all of that adds up to one thing: They should have given us

10 a report long ago. They haven't. Today we don't have a report. And

11 according to this letter, next week we're still not going to have a

12 report. And in fact it's the Prosecution's plan that we never will have.

13 Now, look next of all at the new material the Prosecutor wants to

14 lead. Your Honours, the Prosecutors have indicated that they want to

15 lead additional oral evidence from him on the specific measures that a

16 commander should take to prevent breaches of international humanitarian

17 law. Now, that's problematic. It's doubtful that that evidence can be

18 given in this court. It's up to you to decide that question, not him.

19 You may be assisted by British practice, what steps they take, but if the

20 Prosecutor wants to lead that -- and of course the British, it might be

21 said, very often get things right but not always, not always. No always.

22 But in any event that could be of some assistance to the Court. So if

23 the Prosecutor had given proper notice about that long ago, it may be

24 that we would have prepared and said, okay, we'll deal with that. But

25 we're still not being told that's the case and it's only my surmise that

Page 22

1 that's one of the things that they might seek to lead through this

2 witness. They haven't said so. They haven't told us what they're going

3 to lead; it's 12 days away. They've also indicated -- as you will see,

4 "We will anticipate leading brief oral evidence from the general in

5 relation to several aspects of his report." Now, they haven't said what

6 aspects nor what additional material he's going to provide.

7 Now, this is not a situation of proofing notes. We don't like

8 proofing notes on the Defence side. It's been made clear throughout the

9 trial. Whatever our position may be about proofing notes, proofing notes

10 are not an substitution for an expert report. This is not a witness who

11 is coming along and might say when he gets here, I've suddenly remembered

12 seeing the gun, or remembered seeing a red car. That's different, that's

13 -- we're all grown-ups here in court and we can deal with those sorts of

14 things. Not when it's an expert. Not when it's material that needs

15 preparation and needs briefing.

16 Now, those are the only things I want to raise in advance here.

17 We're going to put this in a motion because we've got substantive

18 objections to this witness's evidence in any event. I'm not going to go

19 through it now; it's in the motion, but they relate to issues of invading

20 the Tribunal's territory, giving evidence about the ultimate issue of

21 guilt of innocence of Mr. Halilovic and other things about the factual

22 conclusions on which his evidence is based. We can put all that in the

23 motion and we will. At the moment I regret to say we're being put in a

24 position by the Prosecution of impossibility. We think it would be --

25 well, we think it's a very unfair manoeuvre, frankly, to leave it to this

Page 23

1 late to announce the course, as they have, then to announce this course

2 which itself which is an spectacularly unfair one, in our submission.

3 And finally, not to be accountable by way of providing a report which can

4 be dealt with in the normal, sensible way.

5 Now, the practice in other Chambers is always adapted to the

6 facts of those cases. We're not seeking to say that you're bound by any

7 other practice. But to come with expert evidence -- in fact, effectively

8 the only expert evidence relating to military structures and so on to be

9 called by the Prosecutors in this frankly ill-prepared and half-baked

10 way, we say it's -- reflects a state of uncertainty about their own case.

11 But whatever it may reflect about their certainties or uncertainties, it

12 exposes the Defence to grave unfairness and we regret that it's happened.

13 We oppose it happening. Our submission is going to be that this witness

14 shouldn't be called at all. He simply shouldn't be permitted to give

15 evidence at this stage. He's not going to help you. That argument will

16 be in the motion.

17 It's not just a question of him not helping. It's a question of

18 the Defence being exposed now to a position of -- well, it wouldn't

19 happen in the common-law system. It would never happen in the civil

20 system. This Tribunal here sets the highest standards, not the lowest

21 ones, and this ad hoc expertise is just not to be permitted. And that's

22 the matter I wish to raise this morning.

23 I've got some other matters not concerned with the expertise, but

24 perhaps we can deal with those later.

25 JUDGE LIU: I believe we should give the opportunity for the

Page 24

1 Prosecution to respond to this very issue first and later on we'll deal

2 with other matters.

3 Any response?

4 [Prosecution counsel confer]

5 MR. RE: Several points I would just briefly address. My learned

6 colleague has said he will file a motion. The Prosecution will of course

7 respond when we receive the motion.

8 Our initial position is that we're entitled to call an expert, a

9 military expert, to give limited evidence in a particularly specialised

10 field. If the Defence wish to challenge the qualifications of a

11 lieutenant general in the British army who has served in high positions

12 in Kosovo and the Balkans and his ability to give expert opinion as to

13 the measures a commander should take to, A, prevent, or B, punish

14 perpetrators, assuming notice of offences which have been committed, they

15 are entitled to challenge his qualifications.

16 The Prosecution's answer to the challenge of qualifications is

17 that this general is as well qualified as any other who has given expert

18 evidence before this Tribunal. The Tribunal -- of course the Trial

19 Chamber is aware that General Karevelic spent something like I think --

20 spent several weeks in the Hadzihasanovic case giving his expert

21 testimony. And the Prosecution didn't challenge Mr. Karevelic's

22 expertise to give evidence on a slightly different matter. The

23 Prosecution's view is that the -- this person is -- this person, his

24 level of seniority and expertise in the field is as well qualified as

25 anyone to give evidence on those two matters.

Page 25

1 Mr. Morrissey has also referred to the time. Well, that's a

2 matter which we can deal with at the time if the Defence require more

3 time for cross-examination. A lot depends upon the answers they're

4 getting and where they're going with a witness. Some witnesses often you

5 feel you need a lot of time with and events turn out, if you're

6 particularly focussed, that you don't. And the Prosecution's view of

7 looking at the anticipated scope of General Ridgway's evidence that if

8 it's dealt with effectively in cross-examination, there's material there

9 for the Defence if they want it because the general is making a lot of

10 assumptions and his report does give -- does give some stuff for the

11 Defence there. So it depends on how they deal with it. It's ultimately

12 a matter of submission, in our respectful submission -- I mean submission

13 at the end of the day, at the end of the case.

14 It's not quite true that experts are not limited in other cases.

15 Mr. Weiner and I myself had experience of two particular experts in the

16 Simic, Tadic, and Zaric case in which the Defence called two experts in

17 one day and the Trial Chamber gave us I think an hour each to

18 cross-examine these witnesses. So there is a direct precedent for

19 experts to be limited to a certain matter and the cross-examination to be

20 limited. I'm certainly not suggesting that be done here, but it is

21 certainly not something that is unheard of before this Tribunal for

22 cross-examination to be limited according to how it will help the Trial

23 Chamber.

24 Complaint is also made about the difference between proofing

25 notes and -- or notes or letters and a report. The Prosecution's

Page 26

1 position on this is we are -- the Tribunal should not be particularly

2 interested in the Defence's repeated complaint about the fact that Mr.

3 Morrissey doesn't like proofing notes. There's a very well-reasoned

4 decision in the Limaj case recently which goes through the Tribunal

5 jurisprudence and practice in the common law and civil law and quite

6 clearly comes down in the favour of the practice of providing proofing

7 notes to the Defence; and vice versa, the Defence providing proofing

8 notes to the Prosecution in anticipation of a witness's testimony. And

9 the decision goes into great detail about the differences between an

10 international Tribunal, where witnesses are not that easy to come by and

11 some years take -- years pass between when a witness is first interviewed

12 and often before an indictment is confirmed, when they ultimately testify

13 and a domestic situation where the witnesses are basically, in most

14 cases, located in a very short distance from the Prosecutor and the court

15 -- the cases are heard relatively quickly, relative to the event that is

16 being litigated.

17 The object of proofing notes is to provide -- or letters or

18 pre-trial briefs is to provide notice to the other side of the effect of

19 the evidence, to give them the chance to respond to it. It doesn't

20 matter, in our submission, whether it's in the form of a report, a

21 letter, a filing, or a proofing note. The effect is the same: It's

22 notice to the other side. If they have notice of what the person is

23 going to say, they have time to prepare.

24 Now, as to the substance of the general's anticipated evidence,

25 there are two areas in which the Prosecution seeks -- primarily seeks the

Page 27

1 benefit of the general's expertise, and that is his expert opinion as to

2 the measures which a commander should take to prevent breaches of

3 international humanitarian law, and similarly, to punish breaches of

4 international humanitarian law.

5 It's not correct, as the Defence -- learned Defence counsel says,

6 to say that the expertise in this area rests solely within the breasts of

7 the Judges. It quite clearly doesn't. The Defence must have done their

8 own research, especially into the law on failure to prevent breaches of

9 international humanitarian law. And the law of this -- jurisprudence of

10 this particular Tribunal is spectacularly thin on the ground in relation

11 to the specific measures a commander should take, assuming the commander

12 has notice, inquiry notice, that a breach may occur. And that's where

13 the Tribunal must obtain the benefit of expert assistance as to what --

14 as to the interaction between military law and practice. That is what a

15 commander can do. And things that a military manual won't tell you, such

16 as in a situation with a failure to punish, assuming there's a combat

17 situation. What should a commander do in, for example, Grabovica? Is

18 combat going on? Is the commander obliged to stop the combat and to

19 isolate the perpetrators, to take them away, have them investigated on

20 the spot, or may the commander to allow those troops suspected of

21 committing crimes go into combat? The military manuals, the laws, the

22 regulations won't tell you. It's only something an expert can say or

23 someone with very senior rank can say, well, in this situation, I would

24 weigh up the following and based upon law, based upon doctrine, this is

25 what a commander should do or could do in those circumstances. You won't

Page 28

1 find that in the jurisprudence of this Tribunal, you won't find that in

2 the military regulations, you'll find that only from expert evidence.

3 Now, we do have some expert evidence before the Tribunal.

4 General Karevelic gave some evidence as to the failure to -- as to the

5 measures a commander should take to punish. And the Prosecution is

6 generally satisfied with that and it generally covers that area. The

7 area which we don't have the evidence on at the moment is the failure to

8 prevent and that's where we want General Ridgway to provide an opinion.

9 In the Prosecution's submission, that is not a difficult matter for the

10 Defence to deal with because they must have their own expert, Brigadier

11 Dzambasovic or whoever, has their own opinion which may be the same or

12 may be different as to that. And they're quite entitled to put their own

13 expertise or their own suggestions to General Ridgway, assuming he says

14 what we anticipate he'll say and deal with him in that manner.

15 The Defence also suggested that it was some sort of set-up going

16 on here, that they, to use a colloquial, they were smelling a rat. That

17 we were setting it up by calling Ridgway at the last moment and then when

18 the Defence objects to it saying we don't have enough time, and then we

19 withdraw him and we attempt to call an expert in rebuttal.

20 Nothing could be further from the truth. We've made it clear all

21 the way along. We want to all General Ridgway because he has some

22 familiarity with the case. But because of his position, he has limited

23 availability. So we wish to confine the scope of his testimony to those

24 particular areas and we would hope the Defence would limit its

25 cross-examination to those issues upon which he would give his expert

Page 29

1 testimony. There's simply no set-up here. We don't plan to try and call

2 an expert in rebuttal. We would have exactly the same problems we would

3 have with General Ridgway, that is trying to get all the material to a

4 new expert and to get them on top of it. We can't do that in this case.

5 That's why we're after a more abstract or specific opinion on the two

6 areas of law which we say will assist the Tribunal.

7 My learned colleague, Mr. Morrissey, also alluded us to the fact

8 or also said that he thought the general would be giving evidence on the

9 ultimate issue. If he looks at the proposed deletions from the report,

10 he'll see that anything that anything which seems to touch on the

11 ultimate issue is gone from there and I make it clear we don't intend to

12 ask the general issues on the ultimate issue, so they can rest assured on

13 that. We don't intend to ask the general issues on the guilt or

14 innocence of the accused but only as to the measures a commander should

15 take in these circumstances, assuming notice of the crimes.

16 Most of the matters which my learned colleague has raised are

17 really matters of cross-examination, which can be dealt with in

18 cross-examination. If they say the facts have changed, they are entitled

19 to examine the expert on that. If Your Honours agree with the Defence,

20 then it's a matter of weight, how much weight to give the expert opinion

21 and the Prosecution has to live with that at the end of the day. Most of

22 these are evidentiary matters which in our opinion can be well dealt with

23 by the Defence in their cross-examination of the general, which we

24 anticipate will be skilful.

25 Those are the only matters I would raise at the moment, unless

Page 30

1 there's anything you wish us to respond to specifically.

2 JUDGE LIU: Thank you.

3 Well, since the Defence is going to file a motion this afternoon,

4 so we are not going to discuss this matter any further in this sitting.

5 But I have to remind the Defence that we have already had a motion of 28

6 pages at our hands. So I hope that the Defence motion should be very

7 concise so that the Prosecution as well as the Bench could make a swift

8 decision.

9 MR. MORRISSEY: Your Honours, Your Honour now know that there was

10 a battalion of mice resubordinated to Mr. Halilovic in this operation.

11 We will have those mice to nibble at our submission and eat it away and

12 we will have that submission reduced in size greatly by the end of today

13 and we'll have it in an acceptable form.

14 But what we do need -- what we do need is for there to be some

15 certainty about the OTP's response time because the time is ticking away

16 now. And not just a matter of responding to the motion, but I think it's

17 likely that the OTP would need at least some time to respond and of

18 course they should be entitled to realistic time.

19 But, Your Honours, there's a number of options open to the

20 Tribunal in dealing with what we say. You might deal with this entirely

21 and prevent them or you might impose some other outcome on them. But at

22 the very least and without further -- without any further, the

23 Prosecution should really provide a proper report. I just had it in

24 front of me a moment ago Rule 94 about this. But could I just remind the

25 Tribunal at the end of the day Rule 94 says that: "The full statement of

Page 31

1 any expert witness to be called by a party shall be disclosed within the

2 time limit prescribed by the Chamber or the Pre-Trial Judge."

3 And what we don't have now is that full statement. Now, we do

4 not insist -- there's a type -- a period of 30 days is then mentioned

5 concerning the response to that, that within 30 days of disclosure of

6 that there has to be response by the Defence.

7 We just need the Prosecutors to indicate -- to indicate whether

8 they are prepared to do that, because if -- well, now, look -- I think,

9 Your Honours, as I talk, I realise I'm probably trespassing into the area

10 of the submission. What I'm anxious about is that we go through the

11 process of our motion and the Prosecution's response and Your Honours'

12 rule, there's very little time left after that. And the Prosecution, if

13 they continue to refuse to give us a report, well it's going to create

14 time delays and difficult -- well, it shouldn't do so, but that's what's

15 going to happen obviously.

16 So what I would ask is that the Prosecutors, if they do wish to

17 persist with calling this witness, be ordered -- be ordered now to

18 provide a full report or to indicate that they refuse to do so, so that

19 that issue is finished with and cut and dry today. That is something

20 that can be decided today, whether they are going to do that or not.

21 JUDGE LIU: Yes.

22 Mr. Re, are you ready to furnish the report to the other party

23 and the Chamber?

24 MR. RE: We have furnished the report.

25 JUDGE LIU: How about the redacted one?

Page 32

1 MR. RE: We have. We provided it to the Defence.

2 JUDGE LIU: Well --

3 MR. RE: The Chamber has it, too.

4 JUDGE LIU: I understand the redacted one has not been signed by

5 the expert himself. It's done by the Prosecution and I wonder whether

6 the procedure is over or not. I mean, you have to show that redacted

7 report to the author himself and ask him to sign that redacted one which

8 makes it more authentic.

9 MR. RE: Well, of course we understand that, but our submission

10 is that the purpose of the rule is to provide notice to the Defence.

11 We've given notice to the Defence and in our submission at the moment the

12 signature isn't going to change the nature of the notice. The notice is

13 of the effect of the testimony, what the expert, we anticipate, will say.

14 We can give a -- in any situation you can give a report to the other side

15 with a signature on it. You come to the report and the expert rejects to

16 three-quarters of the report and it goes. Or the the expert can come

17 into the court and gives additional evidence as normally happens.

18 Experts normally come into the court and give additional oral evidence on

19 matters in their report. That's not unusual at all. And there's no

20 additional report on the oral matters. So but the Defence is still on

21 notice because they received the report. So I'm saying the policy

22 purpose is to give notice, they have the notice.

23 JUDGE LIU: So you mean that the Defence have already received

24 the full report as well as the redacted report?

25 MR. RE: Yes, the redaction is the highlighted parts which we

Page 33

1 would propose to redact. The general hasn't signed it, but it's the same

2 effect in terms of giving them notice of the parts we don't rely on in

3 the report. So they know what we're not relying upon. That's good for

4 them. We've taken out huge slabs of it in relation to Uzdol. They don't

5 need to worry about that. That must limit the cross-examination.

6 JUDGE LIU: Another matter is that an expert is called to testify

7 as to the special areas beyond the other people's knowledge. And at this

8 time, we need the CV of this expert so as to establish his expertise. As

9 you said, he has some experience in Kosovo and the former Yugoslavia. I

10 believe that's a very important matter. Of course an expert is called to

11 give some opinion evidence on that because expert is entitled to do that.

12 However, he should not touch upon those ultimate issues, especially the

13 specific facts, because the witness is not a factual witness. He just

14 gives some special -- some knowledge in the special areas.

15 And in this way, I have to remind you that there are other

16 practices in this Tribunal, that is we use expert report in the

17 proceedings and the Prosecution just spend maybe 20 minutes to lead

18 certain evidence to draw the Bench's attention to certain areas, then

19 leaves most of the time for the cross-examination because eventually the

20 expert report will be admitted into the evidence. This is another

21 approach for us to do so.

22 But anyway, I hope you could furnish the CV of that expert to the

23 other party and to the Bench, if possible, today. And I hope we could

24 get your response on Tuesday, next Tuesday, since we have a long weekend.

25 And this Bench will make the best effort to make a decision as early as

Page 34

1 possible.

2 By the way, are there any possibilities for us to hear this

3 expert witness for a longer time? For instance, how about the weekend?

4 If we could not finish him in one day, is it possible for us to sit on

5 Saturday and Sunday?

6 MR. RE: From the Prosecution's perspective it is. I have to

7 make that inquiry.

8 JUDGE LIU: Yeah, of course, of course.

9 MR. RE: We can certainly do it.

10 JUDGE LIU: It's just a suggestion on that, just to see the

11 possibilities without prejudice to the final rulings of that oral

12 decision on that issue, since we haven't received that motion yet. Thank

13 you.

14 MR. RE: Just on the CV, the first two paragraphs of the report

15 actually details the lieutenant general's experience. Is that good

16 enough for the Chamber and the Defence's requirements to assess the

17 expertise of the general? He graduated in 1970; has a master of

18 philosophy in international relations; did a specialist thesis on the

19 impact of changes on the Soviet military doctrine and the correlation of

20 forces in the region; commanded a tank regiment; commanded the 7th

21 armoured brigade in Germany; commanded the UN Bosnia-Herzegovina command

22 south-west sector in Gornji Vakuf, a sector which included Grabovica and

23 Uzdol; senior staff positions in the Ministry of Defence, including

24 colonel army programmes with the responsibility for the army's budgetary

25 planning as director of operational capability and is director of general

Page 35

1 defence training and education. It's --

2 JUDGE LIU: It's also mentioned that the present position of this

3 expert witness, right?

4 MR. RE: It's not. It said he's "Chief of Staff in the NATO ARRC

5 -- Rapid Reaction Corps; Chief of Staff in KFOR, Kosovo; overseas duty,

6 Germany, Northern Ireland, Belize, Croatia, Bosnia, Kuwait, Macedonia and

7 Kosovo; recently selected for promotion to lieutenant general and have

8 taken up a new position."

9 The new position he has is the chief of British military

10 intelligence.

11 JUDGE LIU: I see. You might mention that in your proofing notes

12 if the new CV is not required by the Defence.

13 MR. MORRISSEY: Your Honours, the new CV, I don't require an

14 updated CV. The Prosecutor has been good enough to indicate what's

15 happened to him since that time. It's not the CV that we're worried by;

16 it's what he's going to say in court. The challenge to expertise is not

17 one that realities to someone's seniority or not but relates to whether

18 they've got the expertise to say the opinion they're going to say.

19 And as to the CV we don't take issue with that. We're not

20 concerned by it. We're happy for the Prosecutor to provide anything

21 additional by way of CV material if they want to, but we notice what's

22 been said in court. Your Honour, it's the substance of what's going to

23 be said that we're struggling with at the moment.

24 We're in a bit of trouble. We are going to issue the motion this

25 afternoon, but the motion is going to be that a report of David Re not be

Page 36

1 admitted. Because at the moment Andrew Ridgway hasn't signed the report

2 that they want to rely on, nor do the Prosecution even tell you that he's

3 even see it. So we're put in the position of shadow boxing here. We'll

4 do it because of the time pressure, but it really is a very

5 unsatisfactory situation for us.

6 JUDGE LIU: I quite understand that. I have nothing to say at

7 this stage on this matter.

8 Are there any other issues the parties would like to bring to the

9 attention of this Bench?

10 MR. MORRISSEY: Yes, Your Honour. Pardon me.

11 JUDGE LIU: Yes.

12 MR. MORRISSEY: There are a number of outstanding matters that

13 need to be dealt with. Would Your Honour excuse me, I have something to

14 clarify with my learned colleague before I go on.

15 [Defence counsel confer]

16 MR. MORRISSEY: Your Honour, some time ago the Prosecutors

17 indicated to the Defence that they would assist with providing us with

18 certain term relating to outstanding charges against the witnesses

19 Alispahic and Delalic and the recently put-to-rest witness, Mujezinovic.

20 Since that time some material has been apparently made available, but the

21 Defence needs a letter from the Prosecutor to have permission to look at

22 this material in Sarajevo. I'm advised that Mr. Weiner has indicated

23 that he's perfectly happy to give us such a letter. So we don't ask for

24 any intervention by the Chamber on that.

25 Concerning the status of Mr. Delalic, we just want to know what

Page 37

1 the position is about his status insofar as the current court proceedings

2 are concerned. That witness is coming next Tuesday and we wish to know

3 what the status of him is. We think he's on trial for murder at the

4 moment and there was some doubt about that. I'm not sure what's been put

5 on his Visa and how that's all been handled. We want to know what his

6 status is from the Prosecutors, so we're awaiting a response to that and

7 perhaps they would be in a position to respond to that.

8 JUDGE LIU: Yes, Mr. Weiner.

9 MR. WEINER: We, I made a check a few days ago, Your Honour, and

10 the information we received is there is an outstanding charge of murder

11 from the famous wedding murder that occurred I think in 1991. He is

12 supposedly on bail, on a very high bail which he has put his house up as

13 a surety or one or two homes as a surety. We have not been able to

14 confirm, and since he is arriving today, we will be able to confirm with

15 him and his attorney and notify counsel. But we were told -- as counsel

16 knows, we provided them with the indictment. He has been charged with

17 that murder and he is currently on a bail situation. We will be able to

18 confirm that matter today with his counsel.

19 MR. MORRISSEY: I'm grateful for that and I'm satisfied with that

20 response, Your Honour.

21 The next issue is the proofing notes regarding Mr. Delalic. Your

22 Honours, we just want to be sure that we have those proofing notes in a

23 timely fashion. We can't have those at a late time. Your Honours, we

24 got the proofing notes with the last witness very late, but that was by

25 agreement because the Prosecutors were under pressure, and he's a

Page 38

1 professional witness. I agreed with Mr. Weiner that that should be done

2 at a late stage and I should say I called Mr. Weiner very late at night

3 and he was working on it we spoke about it. We consented to it being

4 done at a late stage there and so it was legitimate.

5 But no such thing can be done with Mr. Delalic. We need those

6 proofing notes at the very latest by 9.00 a.m. on Monday so we can have a

7 full day to consider what's in those proofing notes. That would leave

8 the Prosecutor with today and Saturday and Sunday to deal with him,

9 which, two days would be -- we hope would be sufficient for the

10 Prosecutor's purposes. But in any event we say we need that to be done

11 by 9.00.

12 JUDGE LIU: Yes. How soon could you provide those proofing

13 notes?

14 MR. WEINER: I want to say to expedite the proofing situation we

15 sent all the proofing notes to Mr. Delalic all his previous statements by

16 mail to Sarajevo, so when he would came here he would be able to start

17 immediately as opposed to when the witness arrives he starts to review

18 all of his previous statements. Everything was sent so we're able to

19 start immediately today and move the proofing much quicker. So hopefully

20 able to get the proofing notes out Monday, but I will speak with Attorney

21 Chana.

22 JUDGE LIU: I hope you could furnish the proofing notes as

23 required by the Defence, that is before 9.00, Monday morning.

24 MR. WEINER: I will relay the witness to Attorney Chana. I'm not

25 doing the proofing, Your Honour. I will tell Attorney Chana the

Page 39

1 situation.

2 JUDGE LIU: Yes, you should do your best.

3 MR. WEINER: We will do our best.

4 JUDGE LIU: Any other matters?

5 MR. MORRISSEY: Your Honours, concerning Mr. Delalic there's

6 another matter. In respect of Mr. Delalic it's apparent from the

7 statements made by Delalic -- sorry.

8 MR. WEINER: Excuse me, Ms. Chana just sent a letter -- an e-mail

9 note that she could provide them by 1.00 p.m. on Monday.

10 JUDGE LIU: Well, we are sitting in the morning, that is 9.00, on

11 the 17th of May. So I believe that at least Defence needs 24 hours to

12 study it and to deal with it. Of course it all depends on how extensive

13 those proofing notes are and usually the proofing notes only should touch

14 upon the matters which is something new from the previous statement

15 rather than go over all the testimonies of the witness. So, Mr. Weiner,

16 I hope you could give some advice to Ms. Chana and ask her to do her best

17 to furnish the proofing notes before 9.00 Monday morning.

18 MR. WEINER: I'll notify her and I know she'll do her best.

19 Thank you.

20 JUDGE LIU: Thank you.

21 MR. MORRISSEY: Thank you, Your Honour.

22 Your Honour, as to Mr. Delalic, it's apparent from Mr. Delalic's

23 own previous statements that he had numerous discussions and meetings

24 with an OTP investigator -- with OTP investigators and in particular

25 Nikolai Mikhailov. So what we want to be provided with is all notes and

Page 40

1 records relating to those meetings, whether or not a formal statement was

2 taken on those occasions. Now, those notes and records must be in the

3 possession of the OTP. It's an important matter. It occurred --

4 particularly the year 1998 that we can assist the Prosecutor with our

5 areas of interest. We're particularly interested in 1998, but of course

6 all subsequent meetings must also be covered if there are any subsequent

7 meetings. But it's evident in late 1997 and early 1998 there were a

8 number of such meetings between Ramiz Delalic and Nikolai Mikhailov.

9 Now, Mikhailov must have taken such notes and such notes must be in the

10 possession of the Prosecutor, so we ask that they be provided to us for

11 the purposes of dealing with this witness when he comes.

12 JUDGE LIU: Mr. Weiner.

13 MR. WEINER: Yes, Your Honour. We've looked in the past. There

14 are numerous statements from this witness that have been -- that were

15 taken and were provided. If there are any notes, we have no problem to

16 turn them over unless there was something of a nature of work product.

17 But whatever we've had we've turned over.

18 JUDGE LIU: Yes. I hope you could do a research during this

19 weekend to see whether there are any records or transcripts for those

20 interviews.

21 MR. WEINER: I'll have the investigator, Mr. Brun, take a look

22 today.

23 JUDGE LIU: Thank you.

24 MR. WEINER: As I said, we have looked in the past.

25 JUDGE LIU: I understand that.

Page 41

1 MR. MORRISSEY: Your Honour, there's the final matter I -- just

2 as a matter of caution, I think we should go into the private session for

3 that.

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

5 [Private session]

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11 Page 42 redacted. Private session.















Page 43

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11 [Open session]

12 JUDGE LIU: Are there any other issues that the parties would

13 like to mention at this stage?

14 MR. MORRISSEY: Sorry, Your Honour, there was one that I missed

15 and this is the last of the issues I have raised. There have in the past

16 been discussions that the Prosecutor would provide an updated list of

17 victims, of persons who the Prosecution might say were murdered. Now,

18 it's quite evident that things have changed in that regard since the

19 start of the case, so it might be that the Prosecutor -- they're not go

20 engage in debate with us about it, it's a question of who they now assert

21 have been murdered, who they're persisting with in that regard. And it

22 would be of assistance if that was done.

23 So we ask whether the Prosecutor are prepared to comply with that

24 and indicate whether they have a list of those or whether they could by

25 early next week provide a list of those who they say can be found beyond

Page 44

1 a reasonable doubt to have been murdered.

2 JUDGE LIU: Yes, I believe this Bench asked for this list during

3 a 65 ter meeting. And the Prosecution at that time promised us to

4 furnish us with such kind of list.

5 MR. WEINER: I was under the view that that was a submission for

6 the 98 bis hearing or at the end of the case. If it's a submission as

7 we've done in a previous case, in the Strugar case, that submission was

8 made at the 98 bis as to what the evidence was at the end of the

9 Prosecution as to each building that had been damaged, out of the

10 400-plus buildings that were charged exactly which buildings were

11 damaged. In this case we thought in our 98 bis submission to file

12 something on a sheet of paper or just go through person by person and

13 what the evidence is as to each of those individuals. But if the Court

14 wants it ahead of time, we can provide it ahead of time.

15 JUDGE LIU: Of course the most appropriate time is for the 98 bis

16 submissions, which is a kind of response from the request of the Defence

17 concerning of the acquittal issues. But however, if you are in the

18 position to do that in an earlier time, I believe that it will be

19 welcomed by the Bench as well as by the Defence.

20 MR. WEINER: All right, Your Honour. That will be fine.

21 JUDGE LIU: So you'll file that list in a week's time?

22 MR. WEINER: I don't know if I can do it in a week's time because

23 now we have to respond to two, probably three motions next week because

24 of the motion will be filed today, the motion that was filed a few days

25 ago, and I think there was another one that was filed. But probably the

Page 45

1 week after we could get that in, which would still be a week prior -- a

2 few weeks prior to the 98 bis.

3 JUDGE LIU: Yes. I understand that you have a very busy weekend

4 since some of the responses will be filed on Monday, 9.00.

5 MR. WEINER: Yes.

6 JUDGE LIU: Although -- although -- Monday is still a holiday.

7 MR. WEINER: As you said, make your best effort to do so.

8 JUDGE LIU: Thank you.

9 MR. WEINER: Thank you.

10 JUDGE LIU: Well, I believe that's all for this hearing and we'll

11 resume at next Tuesday at 9.00 in the morning in the same courtroom. And

12 I wish everybody a good weekend. The hearing for today is adjourned.

13 --- Whereupon the hearing adjourned at 10.35 a.m.,

14 to be reconvened on Tuesday, the 17th day of

15 May, 2005, at 9.00 a.m.