Tribunal Criminal Tribunal for the Former Yugoslavia

Page 28776

 1                           Monday, 3 September 2012

 2                           [Status Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.04 a.m.

 6             JUDGE KWON:  Good morning, everyone.

 7             Would the registrar please call the case.

 8             THE REGISTRAR:  Thank you and good morning, Your Honour.  This is

 9     case number IT-95-5/18-T, the Prosecutor versus Radovan Karadzic.

10             JUDGE KWON:  Thank you.  The Chamber is sitting today pursuant to

11     Rule 15 bis, with Judge Baird being away for urgent personal reasons.

12             Can I have the appearances.  Mr. Tieger.

13             MR. TIEGER:  Good morning, Mr. President, Your Honours.

14     Alan Tieger, Hildegard Uertz-Retzlaff, and Iain Reid appear for the

15     Prosecution.

16             JUDGE KWON:  Thank you, Mr. Tieger.

17             Yes, Mr. Karadzic.

18             THE ACCUSED: [Interpretation] Good morning, Your Excellencies.

19     Good morning to all.  I have here with me my advisor, Mr. Peter Robinson

20     and Mr. Aleksandar Stevanovic.  He looks a bit different, but it is him.

21     He's not wearing a beard anymore.

22             JUDGE KWON:  Thank you.  I didn't recognise him.  Thank you for

23     your notice.

24             Yes, for the amicus.

25             MR. HARVEY:  Good morning, Your Honours.  Richard Harvey, still

Page 28777

 1     wearing a beard, assisted by Mirjana Vukajlovic.  Thank you.

 2             JUDGE KWON:  Thank you, Mr. Harvey.  Today we are having a

 3     Status Conference to review the progress made for the preparation of the

 4     Defence case.

 5             However, before addressing these issues the Chamber will first

 6     deal with a few pending procedural matters.  First there are a few

 7     exhibit-related matters.  The Chamber will now issue an oral ruling on

 8     the accused's request to admit supplemental statements filed on the 30th

 9     of August, 2012.  In the request the accused asks that the Chamber

10     formally admit into evidence the supplemental statements for Mile Janjic,

11     Milorad Bircakovic, and Ostoja Stanisic, which the Chamber provisionally

12     admitted into evidence on the 25th of June, 2012, and the 29th of June,

13     2012, respectively, now that the required attestation under

14     Rule 92 bis (B) has been provided for each statement.  On the same date,

15     the Prosecution informed the Chamber via e-mail that it will not respond

16     to the request.

17             Having been reviewed, the certified supplemental statements, the

18     Chamber is satisfied that the certification procedure fulfils the formal

19     requirements of Rule 92 bis (B).  The Chamber therefore requests the

20     Registry to record that the supplemental statements which have been

21     uploaded into e-court as 1D26311, 1D26312, and 1D26313 are admitted into

22     evidence and to assign exhibit numbers to them.

23             Next, with regard to the Prosecution notice of withdrawal of six

24     exhibits marked for identification, filed confidentially on 29th of

25     August, 2012, the Chamber notes the withdrawal by the Prosecution of the

Page 28778

 1     following exhibits marked for identification:  P4468, P4550, P4584,

 2     P4620, P4819, and P4826.  These exhibits shall now be marked by the

 3     Registry as not admitted.

 4             Finally, the Chamber would also like to take this opportunity to

 5     note that there are a number of Prosecution and Defence exhibits which

 6     remain provisionally under seal.  These include exhibits admitted

 7     through, inter alia, Charles Kirudja, KDZ122, KDZ185, and Richard Butler.

 8     Therefore, the Chamber instructs the parties to each file a submission by

 9     Friday, 14th of September, providing the Chamber with any information

10     relevant to all of their exhibits currently provisionally under seal,

11     including specific requests as to whether each exhibit shall be

12     permanently placed under seal or may be made public.

13             Well, then there are several matters to deal with in private

14     session, so could the Chamber move into private session.

15                           [Private session]

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11  Pages 28779-28784 redacted.  Private session.















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 7                           [Open session]

 8             JUDGE KWON:  Yes.  Well, now let us discuss some issues regarding

 9     the preparation of Defence case.

10             First, I turn to expert reports, Mr. Robinson.  The Chamber has

11     received notifications of reports under Rule 94 bis in relation to seven

12     witnesses whom Mr. Karadzic intends to call as expert witnesses.

13     However, with the exception of Derek Allsop's report, the original of

14     which was in English, none of the reports have been translated into

15     English.  It should have been clear to you that the Chamber's dead-line

16     of 27th of August required the Defence to produce the expert reports in

17     one of the two official languages of the Tribunal, i.e., English or

18     French.  We are now in a situation where the Prosecution cannot possibly

19     start reviewing the reports and will not be able to do so before it

20     receives their English translations.  It is only upon its reception that

21     the 30-day response for the Prosecution will run.

22             So, Mr. Karadzic and Mr. Robinson, the Chamber would not want

23     this oversight on your part to affect the expeditious conduct of trial

24     and you should have made all efforts for the translations to be ready by

25     the 27th August dead-line.

Page 28786

 1             In the meantime you mentioned that all the reports were

 2     immediately sent for translation.  Could you provide us with a precise

 3     update as to when these translations will be available?

 4             MR. ROBINSON:  Mr. President, I'm advised that our case manager

 5     has been told by the language section that they will try to have them

 6     available by the 5th of November but they can't guarantee it.

 7             JUDGE KWON:  And none of them will be called to testify this

 8     year?

 9             MR. ROBINSON:  That's correct, except Dr. Allsop, whose report is

10     in English.

11             JUDGE KWON:  Mr. Tieger or Ms. Uertz-Retzlaff, do you have any

12     comments on this?  A translation by the 5th of November of these expert

13     reports.

14             MR. TIEGER:  As the Court is -- thank you, Mr. President, first

15     of all.  Yes, as the Court is aware, that is a matter of concern for us

16     as well.  We appreciate the Court addressing this so quickly and so

17     firmly.  I did not -- I think we did not anticipate that given the volume

18     of the material that CLSS would be in a position to produce all the

19     reports by that date, that is indeed a welcome piece of information.  I

20     have actually spoken to Mr. Robinson about this issue earlier.  What the

21     Prosecution underscored at that time was that simply deferring the

22     obligations of the Prosecution to respond and the testimony of the

23     individual experts did not fully address the problems created by the

24     untimely submission of the translations because, particularly with

25     respect to the experts related to Sarajevo, it is impossible for us to

Page 28787

 1     know what the implications of those untranslated reports may be for the

 2     witnesses who are to testify.  Therefore, we're quite handicapped in

 3     dealing -- or attempting to deal with those particular witnesses.

 4             Now, it appears that the impact on the Sarajevo component will be

 5     potentially mitigated to some extent by a very early receipt of the

 6     reports, if that is indeed feasible.  One consideration we would mention

 7     at the moment is that if it is CLSS's intention to produce translations

 8     of all reports by November 5th, there might be some utility in staggering

 9     the translations and prioritising the translation of the Sarajevo-related

10     reports accordingly.

11             So we would need to further consider the witnesses who are

12     intended to be called early against the nature of the reports to the

13     extent we can glean anything about them.  But the broader concern that we

14     had which was that it appeared that the Sarajevo expert reports would not

15     be received, at least the translations would not be received, until we

16     were deep into or even concluded with that component, an impossible

17     situation for the Prosecution may not come to pass.  So we would like to

18     consider the impact on the Prosecution's case in light of that projected

19     date.  We would also ask if the Court -- I don't know if that's an overly

20     sanguine assessment by CLSS and I think to the extent we'll be depending

21     on it, it would be helpful to get some -- for the Trial Chamber to get

22     some confirmation on that.  But as I say, we will now reassess the

23     potential impact in accordance with this new information.

24             JUDGE KWON:  Thank you, Mr. Tieger.

25             In conclusion, I'm urging you, Mr. Robinson and Karadzic, to

Page 28788

 1     continue to liaise with CLSS so that English translations can be provided

 2     for these expert reports as soon as possible.  And the same should apply

 3     to the Defence exhibits later on.

 4             In the meantime you mentioned that one of the expert reports has

 5     already been translated.  Which one is that, if you remember,

 6     Mr. Robinson?

 7             MR. ROBINSON:  Yes, that's the report relating to air bombs in

 8     Sarajevo, modified air bombs.

 9             JUDGE KWON:  Thank you.  Then I note that in relation to

10     Mr. Dusan Dunjic, 65 ter 1D25489 is described on e-court as having been

11     prepared for the Popovic case.  That being the case, there must be an

12     English translation available.  Am I correct in so understanding?

13             MR. ROBINSON:  That's a good point, Mr. President.  We will look

14     for that.  You're probably exactly correct.

15             JUDGE KWON:  Thank you.

16             Then I'm now turning to the accused's Rule 65 ter witness list.

17     First thing I would like to raise is the accused's unsworn statement

18     and/or testimony.  At paragraph 22 of the Rule 65 ter submissions, the

19     accused mentions that he wishes to make a four-hour unsworn statement

20     pursuant to Rule 84 bis.  However, at paragraph 14, he also mentions that

21     he may wish to testify and sets aside 30 hours for that testimony in the

22     65 ter list.

23             In this regard I wish to first share some guidance about the

24     stage at which the accused decides to give his evidence.  It seems to me

25     that the evidence of an accused would carry more weight if it is given

Page 28789

 1     right at the beginning of his case rather than later, in light of

 2     everything that has been heard, as the accused is the only witness who

 3     will have the benefit of hearing all of the others.  Thus, Mr. Karadzic,

 4     I would simply ask you to carefully consider what I just said.  Also, in

 5     the event that you do decide to present your evidence first, the Chamber

 6     would question the necessity of providing an unsworn statement at all.

 7     However, if you were to maintain your request to provide an unsworn

 8     statement under Rule 84 bis, the Chamber would grant that request but

 9     limit your time to one session, namely, one and a half hours.

10             Next, with regard to the issue of witnesses related to

11     sentencing.  The accused states in paragraph 4 of the Rule 65 ter

12     submission that he intends to provide a witness and exhibit list for the

13     sentencing phase of trial after the Chamber has called its witnesses, if

14     any, under Rule 98.  However, Mr. Robinson, as you know very well,

15     Rule 85 was amended a long time ago back on the 10th of July, 1998,

16     replacing the previous two-stage procedures, i.e., trial and sentencing,

17     by a joint procedure.  This means that as a matter of course the Defence

18     Rule 65 ter list must identify witnesses and documents that go to

19     sentencing matters.  For Mr. Karadzic not to know this is one thing, but

20     for you, Mr. Robinson, and the rest of the legal team, to me it is

21     unacceptable.

22             So, Mr. Karadzic or Mr. Robinson, do you wish to comment on this

23     point?

24             MR. ROBINSON:  Yes, Mr. President.  I'm actually -- I apologise

25     if I should have known that.  As I stand here now I'm still of the belief

Page 28790

 1     that under Rule 85 we have the right to make that information after the

 2     Chamber calls its witnesses.  But in terms of disclosure of the

 3     information, we're happy to disclose it at any time that the Chamber

 4     feels it would be helpful.  And if you believe it should be disclosed

 5     before the Defence substantive case begins, we can do that.

 6                           [Trial Chamber confers]

 7             JUDGE KWON:  Very well.  Now turning to time, I wish to make the

 8     following observations.  First, for all of the Defence witnesses, except

 9     for the testimony of the accused if he wishes to testify himself, the

10     accused lists one hour per witness as the expected time for his

11     examination.  However, all of these witnesses, with the exception of a

12     couple, are listed as Rule 92 ter witnesses.  The Chamber has reviewed

13     the very few statements which have been uploaded onto e-court.  The

14     overwhelming majority of these statements are under ten pages, but the

15     accused still estimates that he will use one hour with these witnesses.

16     Further, for witness 537, I will not mention the name as I am uncertain

17     as to whether or not there are security concerns, there's a 79-page

18     statement and the accused has made one hour for this witness.  It thus

19     seems that the Defence has not carefully thought of the time it really

20     needs for each witness.  Thus, I wish to remind you, Mr. Karadzic, of the

21     importance of accurate time estimates for witnesses in terms of logistics

22     and planning.  As the Rule 65 ter list now stands, these estimates are

23     not useful.

24             I will also remind you of the Chamber's order on the procedure

25     for the conduct of trial issued on 8th of October, 2009, which applied

Page 28791

 1     throughout the Prosecution case.  In paragraph M of the appendix A, the

 2     Chamber ruled that "the presenting party may conduct a limited

 3     examination-in-chief of the Rule 92 ter witness where such an examination

 4     is focused on clarifying or highlighting particular aspects of the

 5     witness's evidence."

 6             Therefore, for pure Rule 92 ter witnesses, the Chamber does not

 7     envision that they should take more than 30 minutes maximum.

 8             Now, as the Prosecution did during its case, the accused may

 9     choose to call witnesses as partial Rule 92 ter witnesses, in which case

10     the witness's evidence will be partly submitted in writing and partly

11     elicited orally during direct examination which will not be limited to

12     clarifying or highlighting aspects of that witness's evidence.  In the

13     event this is your intention, you must revise your list accordingly so

14     that it accurately reflects the expected status of all the witnesses.

15             Now turning to the subject matter of the witnesses' testimony,

16     although the Chamber will not by principle restrict the witnesses the

17     Defence will call beyond the Chamber's usual and ongoing control over the

18     relevance of the issues presented at trial, I still question the

19     rationale behind the accused calling all of the witnesses listed in his

20     Rule 65 ter list.  In particular, I wish to note a few categories of

21     witnesses.

22             First, Tomas Blaszczyk.  He was called three times during the

23     Prosecution's case, so it's not clear to me why the accused failed to use

24     Rule 90(H)(i) to elicit information relevant to his case on the three

25     instances when this witness was on the witness-stand, especially during

Page 28792

 1     his second appearance in January 2012 when Srebrenica was discussed.

 2             Second, there are a lot of witnesses on the list who pertain to

 3     municipalities not covered at all by the indictment and barely mentioned

 4     in this trial.  For the sake of providing you with a non-exhaustive list

 5     of such examples, I refer here to witnesses 31 in relation to Ljubinje;

 6     38 in relation to Kozarska Dubica; 114 in relation to Derventa; 116 in

 7     relation to Skender Vakuf; 127 in relation to Kupres; 185 in relation to

 8     Bosanska Gradiska; and 188 in relation to Bosanski Brod.

 9             During the Prosecution's case, Mr. Karadzic, you made a point of

10     moving for the exclusion of evidence pertaining to areas not covered by

11     the indictment and the Chamber granted your request on many occasions.

12     There's no reason why the Chamber should apply a different standard at

13     this stage.

14             Third, similarly there are a number of witnesses pertaining to

15     municipalities for which the indictment only contains very specific

16     allegations related to camps.  There is, therefore, no need to present

17     such detailed and repetitive evidence on those municipalities in general

18     as opposed to the camps themselves.  So I refer you here to Witnesses 223

19     in relation to Brcko as well as 219 and 354 in relation to Banja Luka.

20             Also in terms of relevance, I note that you have a lot of

21     witnesses who are expected to provide tu quoque evidence.  Throughout the

22     Prosecution case, you were warned by the Chamber that it will not accept

23     such evidence as it has no impact on your responsibility for the crimes

24     alleged in the indictment.  Again, I refer you to the following

25     non-exhaustive list of examples:  Witnesses 29, 52, 87, 109, 117, 128,

Page 28793

 1     153, 204, and 451, the list would go on.

 2             Next, also in terms of relevance, I note that you intend to

 3     present detailed and extensive evidence on the attack on the JNA column

 4     in Sarajevo through, for instances, Witnesses 66, 250, and 337.  Again,

 5     this is something that has nothing to do with the crimes alleged in the

 6     indictment.  Further, there's no need to hear about this event

 7     repetitively from several witnesses.

 8             I also note your intention to call expert witness on terrorism

 9     who will testify about an incident in which part of his family died but

10     which has nothing to do with the indictment.  This is Witness 524.

11     Again, I see no point in this witness giving evidence in this trial.

12             Finally, I also want to note that while some of the evidence is

13     of some relevance to the background to this case, there seems to be a lot

14     of unnecessary repetition in the evidence intended to be given by your

15     expected witnesses.  I understand that not all of them may ultimately

16     come, but I still question the necessity of even listing so many

17     witnesses who are to give evidence, for example, on the political and

18     historical background and the division of the former Yugoslavia.  Again,

19     I will give you a non-exhaustive list of examples and refer you to

20     Witnesses 60, 103, 203, 225, 231, 294, and 398.

21             So, Mr. Karadzic, I have given you a lot of examples of evidence

22     which is irrelevant to your case and of evidence which, even though of

23     some relevance, is far too repetitive.  You should also always bear in

24     mind that more evidence you present during your Defence case, the more

25     risk you take that the Prosecution will be able to extract evidence

Page 28794

 1     favourable to its case from your witnesses and from documents it may put

 2     to your witnesses on cross-examination.  Thus, it may be more beneficial

 3     to you to be more careful and modest in selecting your witnesses,

 4     focusing only on the best witnesses.  You will see that applying the

 5     guidance will allow you to greatly reduce the number of hours you deem

 6     necessary to present your case.

 7             So do you wish to comment on the points I referred to,

 8     Mr. Karadzic or Mr. Robinson?

 9             THE ACCUSED: [Interpretation] Thank you, Your Excellencies.

10     Before I ask Mr. Robinson to discuss the legal aspect of this matter, I

11     would like to point out a couple of brief matters myself.  I obviously

12     have a different, if not an all together wrong, interpretation of the

13     indictment.  I'm now speaking on the basis of your ruling that the

14     responsibility for war is not relevant.

15             I was indicted for formulating the objectives of the Serbian

16     nation which could be achieved only by means of war.  The position of the

17     Defence is that those objectives have been achieved before the war by way

18     of political means.  So if that is not the case, if I was not indicted

19     for formulating the objectives which led to war, then we should wonder

20     whether I'm -- whether I could be held responsible for anything at all.

21     And it makes me very happy to see that the Chamber doesn't think this to

22     be relevant, but the Prosecution thinks that starting from the autumn of

23     1991, if not as early as July 1990 when the SDS was established, they

24     claim that our goal was to establish a joint criminal enterprise.  And

25     for the same reason, I think it very important to show what actually went

Page 28795

 1     on in Yugoslavia, who wanted changes and how those changes came about.

 2     It wasn't happening because the Serb side wanted it, especially not the

 3     Serb side in Bosnia-Herzegovina.  We did not want these major, radical

 4     changes in the state fabric of Yugoslavia, and this is something that is

 5     stated implicitly in the indictment, that we wanted the war in order to

 6     achieve our goals, our objectives.  That is not true.

 7             The same could be said of municipalities where there were no

 8     crimes committed.  If you take, for example, a street where there were

 9     some crimes and then you omit the entire city, then that looks terrible

10     if that city if representative of the entire town.  If I am accused for

11     the systematic approach to committing crimes and so on, that it is

12     important for me to show a pattern because based on that pattern the OTP

13     wanted to include Gorazde, Visegrad, and other municipalities which are

14     not part of the indictment and the Chamber accepted that in order to

15     prove the pattern.

16             Now, if we are talking about the pattern and I am president of

17     the republic and a creator, author of a system, that we should wonder why

18     were there so many municipalities where there was no JCE?  Because

19     Republika Srpska has 62 municipalities.  So how come this took place in

20     only some municipalities?  We heard a witness here, Dr. Mujagic, who said

21     that in areas where they had 20 or 30 per cent there was no problems.

22             So my reading of the indictment is the reason for this attitude

23     of mine, but I think that the OTP has the same reading of the indictment

24     as I do, namely, that at the bottom of the JCE --

25             JUDGE KWON:  Mr. Karadzic, I'm going to stop you here.  The

Page 28796

 1     Chamber does not feel the necessity to repeat all the previous warnings,

 2     and you have Mr. Robinson and other legal advisors and you can discuss

 3     the distinction between jus in bello and jus ad bellum.  So --

 4             THE ACCUSED: [Interpretation] Your Excellencies, could

 5     Mr. Robinson then present our legal reasons for this stance towards the

 6     testimonies.

 7             JUDGE KWON:  Very well.

 8             Yes, Mr. Robinson.

 9             MR. ROBINSON:  Yes, Mr. President.  Just to clarify what

10     Dr. Karadzic is referring to in the decision on the fifth motion for

11     binding order to the United States, the Trial Chamber made the statement

12     that who started the war is not relevant.  And he believes, and the

13     witness list reflects, that he's charged with a course of events, a joint

14     criminal enterprise starting in November 1991, in which the expulsion of

15     the population could only have been achieved through force and war.  So

16     he believes that the Chamber's ruling that it's not relevant who started

17     the war doesn't comport with his being able to defend that allegation of

18     the indictment.  Anyway, I'll leave it at that.

19             With respect to --

20             JUDGE KWON:  And on your part you understand the Chamber's

21     observations?

22             MR. ROBINSON:  I understand it and I have to tell you I don't

23     agree with them, but that's because I'm a lawyer and not the Judge.

24     So -- but I understand what the Chamber said, yes.

25             JUDGE KWON:  Very well.

Page 28797

 1             Yes, please continue.

 2             MR. ROBINSON:  With respect to the rule -- the time estimates,

 3     and maybe it would be helpful to clarify that we included in the one hour

 4     both the direct examination and anticipated re-direct examination, and we

 5     believe that it was prudent to reserve that much time for each witness so

 6     that Dr. Karadzic wasn't cut off in the event that the re-direct

 7     examination needed to be longer than he anticipated.  So that's the

 8     reason why we have selected one hour for each of those witnesses.  In

 9     fact, we expect the direct examination to be very short.  In most cases

10     we hope it will be limited to introduction of the statement, if the

11     statement is adequate, and in some cases when Dr. Karadzic meets the

12     witness he may find additional material that he wants to raise with the

13     witness in court, and in that case the witness would be partial 92 ter.

14     So that's the rationale for the time estimate that we gave to the

15     Chamber.

16             And finally with respect --

17             JUDGE KWON:  But you do understand, Mr. Robinson, that the

18     accurate estimate is also important for in terms of logistics and

19     planning?  So that's very important as well.

20             MR. ROBINSON:  Yes, I understand that.

21             And finally with respect to the items of relevance that the

22     Chamber has mentioned, I think we appreciate the Chamber bringing those

23     to our attention and we will take them on board and as the trial

24     develops, just as the Prosecution did with its list, we will be dropping

25     some witnesses who we don't believe have relevant evidence or whose

Page 28798

 1     evidence is duplicative of credible evidence that we had managed to bring

 2     during the course of the trial.  Thank you.

 3             JUDGE KWON:  Thank you, Mr. Robinson.

 4             Given all of these issues that I have identified above, I will

 5     give the Defence an opportunity to revise its 65 ter witness list so that

 6     it includes the accurate time estimate for each witness, the names of the

 7     witnesses the Defence may choose to call in relation to sentencing, the

 8     accurate status of each witness, and any other amendments necessary in

 9     light of my comments above in relation to relevance and repetitiveness.

10     The Defence will have until 14th of September, 2012, in which to file its

11     revised list.

12             Very soon after the Chamber receives the Defence's revised Rule

13     65 ter list on the 14th of September, the Chamber will issue a decision

14     on the number of hours it allocates for the presentation of the Defence

15     case.  But before that, does the Prosecution have any observation to make

16     in relation to the accused's submission that he should be allowed the

17     same amount of time allocated to the Prosecution, i.e., 300 hours, plus

18     an additional 300 hours to rebut the 2 .300 adjudicated facts for which

19     judicial notice has been taken, i.e., in total 600 hours?

20             MR. TIEGER:  Thank you, Mr. President.  I would begin by noting

21     that the discussion today I think has highlighted the specious nature of

22     that request all by itself.  Secondly, the request for those hours called

23     to mind nothing less than the repetitive requests for huge amounts of

24     cross-examination time based on no particular submissions to the Chamber

25     about what the accused particularly hoped to elicit when the number --

Page 28799

 1     the extraordinary number of hours requested by the accused in those

 2     instances were not allocated and were cut back dramatically.  The accused

 3     nevertheless continued to misuse the amount of time, waste a great deal

 4     of time during that process, and only get toward the hard facts toward

 5     the very end, and we consider this to be roughly analogous.  The accused

 6     simply -- he either adopts a figure if not out of thin air then based on

 7     some arbitrary mathematical relationship to the amount of time used by

 8     the Prosecution without any attempt to indicate to the Court what the

 9     basis might be and without any attempt to consider the difference between

10     a Defence case and a Prosecution case with the burden of proving all the

11     facts necessary.  That is a distinction which has been highlighted by

12     other Chambers.

13             In short, there are a broad number of factors which were not

14     alluded to in any way by the accused -- in fact, ignored by the accused,

15     including, as the Court indicated today, the amount of time the accused

16     has already used during the course of his cross-examination to elicit

17     matters related to his affirmative Defence case rather than for specific

18     cross-examination of those witnesses.  With respect to the patently

19     unfounded and unreasonable attempt to seek double the amount of time used

20     by the Prosecution in its case because of adjudicated facts is no attempt

21     to acknowledge the adversarial nature that went into the establishment of

22     those facts in the first case, no attempt to indicate what facts, if any,

23     the accused considers are necessary to address, no attempt to acknowledge

24     the number -- the overlap between the Prosecution's case and the time it

25     took to perfect that case, and the underlying adjudicated facts and so

Page 28800

 1     on.

 2             In short, it's a wholly arbitrary figure, very much in keeping

 3     with the accused's approach to requested allocations of time for

 4     cross-examination and has no more basis than those requests had.

 5             JUDGE KWON:  Thank you, Mr. Tieger.

 6             Mr. Robinson, would you like to reply to this?

 7             MR. ROBINSON:  No, Mr. President.

 8             JUDGE KWON:  Thank you.

 9             Next, at paragraph 12 of the Rule 65 ter submission,

10     Mr. Karadzic, you mention that in the event that the Chamber imposes

11     limitations on the Defence case you will seek leave to file additional

12     Rule 92 bis motions.  However, Mr. Karadzic, the Chamber imposed the same

13     dead-line of 27th of August for filing of both the 65 ter list and the

14     Rule 92 bis motions for a very good reason.  As you and your legal

15     advisors must have been aware, the Chamber was expecting you to conduct a

16     thorough review of the evidence you wish to present long before now.

17     Following this review, you were to file Rule 92 bis motions, if any,

18     wherever you thought the Rule 92 bis standard was met and/or to prepare

19     the accompanying Rule 92 bis statements.  In other words, the Rule 92 bis

20     motions were not to be used as a counter measure to the Chamber imposing

21     limitations on the time allotted to present your case.  Indeed, I remind

22     you that the Prosecution was also requested to file its Rule 92 bis

23     motions prior to the Chamber imposing time-limits on the Prosecution.

24     There's absolutely no reason why the same standard should not apply to

25     your case and you cannot now take it upon yourself to change that

Page 28801

 1     dead-line unilaterally.

 2             The Chamber, therefore, expects you to do this exercise now and

 3     will give you the opportunity to do so no later than Friday, 14th of

 4     September, 2012, and to make the appropriate changes to the status of the

 5     said witnesses in your revised 65 ter list.  Barring exceptional

 6     circumstances, the Chamber will not entertain additional Rule 92 bis

 7     motions after that date.

 8             Now I turn to the timing of production of Rule 92 ter statements.

 9     In paragraphs 18 to 20 of the Rule 65 ter submissions, the accused

10     describes the manner in which he plans to organise the finalisation of

11     Rule 92 ter statements and proofing.  However, the Chamber is concerned

12     that this schedule is simply not feasible.  On the one hand, this system

13     which requires the statement be finalised and signed at least 48 hours

14     prior to the witness's testimony will necessitate the witness to be

15     present in The Hague at least three days prior to the start of his or her

16     testimony.  This will be a very heavy logistical burden on the Registry's

17     resources as it will apply to all of the witnesses.  It will also be a

18     toll on the witnesses who will have to be staying in The Hague for longer

19     periods of time than what should really be required.  I would thus like

20     to hear from the Registry in a Rule 33(B) submission on this matter.

21             So, Mr. Court Officer, if you could immediately send this portion

22     of the transcript to the Registrar so that a Rule 33(B) submission may be

23     filed.

24             Second, while 48 hours may be sufficient in instances where a

25     draft statement as well as associated exhibits have been provided well in

Page 28802

 1     advance and when there are very few changes made to the finalised

 2     statement during proofing, the Chamber does not consider that is the case

 3     when a draft statement has not even been produced yet.  It's clear,

 4     however, from the 65 ter submission that the Defence has prepared very

 5     few such statements at this point and I have grave concerns that the

 6     majority will not be prepared until the very last moment.

 7             As was the case with the Defence case during the Prosecution's

 8     case, the Prosecution should also be given sufficient time to prepare for

 9     its cross-examination of the Rule 92 ter witnesses.  Furthermore, the

10     Chamber needs sufficient time to make its assessment of the indispensable

11     and inseparable character of the associated exhibits, if any are being

12     tendered.  I wish to recall paragraph 1 of the appendix L of the

13     Chamber's order on the conduct of trial of 8th of October, 2009, in which

14     the Chamber had ordered that an amalgamated statement shall be prepared

15     well in advance of the witness arriving in The Hague to testify.  It was

16     only in these circumstances that the Chamber had decided that the final

17     amalgamated statement should be provided to the Chamber and the other

18     party no later than 48 hours before the start of testimony.

19             The Chamber again sees no reason to depart from this standard for

20     you, Mr. Karadzic.  You have a large team of legal advisors and

21     assistants available to meet with the witnesses and prepare the relevant

22     statements so that these statements can be disclosed to the Prosecution

23     and the Chamber well in advance of their testimony.  If during proofing

24     by you or a member of your team minor corrections or changes are

25     made - and I stress the term "minor" - the Chamber takes no issue with

Page 28803

 1     the finalised statement being disclosed no later than 48 hours before

 2     testimony.

 3             This leads me to remind you, Mr. Karadzic, that proofing is not a

 4     right and you must understand that it is simply not feasible for you to

 5     proof yourself every single one of your witnesses.  Not only because you

 6     are a self-represented accused but also because this is not feasible,

 7     even in cases where the accused are presented by lead counsel and

 8     co-counsel where this duty would be split between them.  Accordingly, you

 9     must be willing to split responsibilities amongst your team members and

10     the Chamber will accept no less from you.

11             While I know that the Registry has been very active in ensuring

12     that mechanisms are in place to accommodate you as much as possible, it

13     is the Chamber's role to ensure that the trial is conducted expeditiously

14     and fairly to all parties involved.  I would ask you to think about this,

15     but in the meantime I am requesting you to immediately organise yourself

16     accordingly so that the statements of Rule 92 ter witnesses or partial

17     Rule 92 ter witnesses are prepared and reviewed as soon as possible.

18             So can you tell us where you are in terms of preparing

19     Rule 92 ter statements?  Mr. Robinson or Mr. Karadzic.

20             MR. ROBINSON:  Yes, Mr. President.  So far we have filed 68

21     statements and our procedure is basically that our investigators are

22     meeting the witness and drafting -- preparing a draft 92 ter statement

23     and will continue to do this so that those are prepared as far in advance

24     as we're able to do that.  And the problem is, however, that we don't

25     believe that that statement should be final until Dr. Karadzic has had

Page 28804

 1     his input into that because we have investigators who don't know the case

 2     that well, haven't been following the proceedings -- in fact, they were

 3     just assigned to our team at the end of the Prosecution case.  And so we

 4     don't feel that a 92 ter statement would be complete without

 5     Dr. Karadzic's input.  And so we're -- this was our proposal for how best

 6     to accommodate all of those concerns, by having a draft statement

 7     prepared in the field, disclosing it immediately to the Prosecution, and

 8     then once Dr. Karadzic has had his input, making that statement final.

 9     But we can't guarantee that that input will only result in minor changes.

10     Dr. Karadzic may know of points or subjects with the witness that the

11     investigator simply didn't know and there may be instances where he adds

12     subjects, not only makes minor corrections.  So we're happy to work with

13     the Chamber and the Registry to accept any ideas as to how all of that

14     can be best accomplished.  This was our best effort of how we can make

15     these statements available to the Prosecution in draft form at the

16     earliest possible time, while at the same time making sure that the

17     witness's evidence is the best that it can be when it comes to the

18     courtroom.

19             JUDGE KWON:  By Mr. Karadzic's input, do you mean to say that he

20     is intending to proof every and each witness of 92 ter witness?

21             MR. ROBINSON:  I wouldn't say each witness, but most of the

22     witnesses, the exceptions being some witnesses, international witnesses,

23     for -- who do not wish to come to the Detention Unit and who I have had

24     to do the proofing with myself.  But in principle, Dr. Karadzic would

25     like to and believes he's entitled to proof all of the witnesses, just as

Page 28805

 1     the Prosecution's attorney who led the witnesses' examination in each and

 2     every case for the almost 200 witnesses conducted the proofing of that

 3     witness.  Thank you.

 4             JUDGE KWON:  Does the Prosecution wish to make any comment on

 5     this issue?

 6             MR. TIEGER:  I think we both do but let me make a couple of

 7     preliminary comments, if I will, just on the facts recently alleged.

 8             First of all, I don't think it's factually accurate to say that

 9     in each and every case the attorney who led the witness necessarily had a

10     chance to proof him.  But more to the point, if -- in the event that

11     there had been a decision by the Prosecution that a single Prosecutor

12     would lead all the witnesses, then that certainly would not have been the

13     case.  The Court repeatedly warned the accused that self representation

14     carried that limitation.

15             Secondly, I'm afraid there seems to be a bit of an apples and

16     oranges comparison between proofing and input from the accused.  To the

17     extent the accused will be in a position to proof witnesses, we accept

18     that the possibility that additional information, generally we expect of

19     a limited nature, will emerge during that process.  But it is difficult

20     to understand why whatever input may inform the taking of a statement

21     cannot be provided well in advance of a proofing session, and so to link

22     those two in the manner that has been done I believe is not a fair

23     characterisation of the process.

24             JUDGE KWON:  Thank you, Mr. Tieger.

25             Yes, Madam Uertz-Retzlaff?

Page 28806

 1             MS. UERTZ-RETZLAFF:  No thank you, Your Honour.

 2             JUDGE KWON:  Yes.  So in producing the Rule 92 ter statements, I

 3     would like the Defence to bear in mind what I commented on as well as

 4     Mr. Tieger's observations.

 5                           [Trial Chamber confers]

 6             JUDGE KWON:  Well, since we have been discussing proofing, I now

 7     wish to turn to the request Mr. Karadzic has made at paragraph 21 of his

 8     Rule 65 ter submission, whereby he requests that the Chamber go back to

 9     the regular sitting schedule so that he can return to the United Nations

10     Detention Unit by 2.00 p.m. to proof his witnesses.

11             Mr. Karadzic, the extended sitting schedule allowed us to sit for

12     18 hours per week.  If we go back to the regular sitting, four days per

13     week, we would lose more than two hours per week.  I understand, however,

14     that you may prefer to have longer afternoons for your preparations.  In

15     order for the Chamber not to waste time but also to accommodate your

16     request, we could sit regular sitting hours but do so five days per week.

17     In the end, that would allow us to sit for approximately the same amount

18     of time.

19             I thus give you the option of choosing which of the two options

20     you consider to be the most practical in terms of your preparations.  The

21     Chamber is obviously also concerned with preserving your good health, so

22     the Chamber leaves the choice of these two options to you.

23             I think I have exhausted all the items that I prepared for the

24     agenda today, so I'd like to invite the Prosecution and the accused to

25     raise anything if they so wish.  Yes, Mr. Tieger.

Page 28807

 1             MR. TIEGER:  Thank you, Mr. President.  Just one additional

 2     matter, it was on the agenda we provided to the Court earlier, and that

 3     relates to the 65 ter summaries.  I should mention at the outset that

 4     this is a matter that I discussed with Mr. Robinson.  As it turns out, it

 5     implicates a matter raised by the Court, which is the timing of the

 6     submission of the draft statements, a matter that occurred to us as well.

 7     In short, it amounts to this:  We are concerned with the deficiencies of

 8     some of the 65 ter summaries.  An example would be something to the

 9     effect that the witness will testify about events related to Srebrenica.

10     Clearly, that does not satisfy the Rules requirement for a summary of the

11     facts about which the witness will testify.  At the same time, it is

12     theoretically conceivable that the submission -- the timely and early

13     submission of a draft statement may effectively obviate the need for a

14     more fulsome summary to the extent that the Prosecution can be assured

15     that the facts about which the witness will testify will be limited to

16     that statement.  And that's a matter I spoke with Mr. Robinson about and

17     indicated to him that we would be happy to work with him, at least for

18     the time being, to see if short of seeking an order from the Court for

19     65 ter summaries that complied with the Rule, we could reach an

20     accommodation about the timing of the submission of either a draft

21     statement or a finalised statement or a more fulsome and compliant

22     summary.  That's what we'll do, reserving the right to return to the

23     Court if and when such an effort proves fruitless and we need then to

24     seek to have the Rule 65 ter complied with in full in accordance with its

25     terms.  So that's all I wanted raise.  We're trying to work -- we'll try

Page 28808

 1     to work it out without involving the Chamber, but should that not prove

 2     successful we will return to the Chamber and seek an appropriate order.

 3             And finally the only thing that I would add at this point,

 4     Mr. President, is that with respect to the reports, the expert reports,

 5     we will attempt to liaise with the -- both CLSS and with the Defence in

 6     connection with of the impact of the absence of translations on the

 7     upcoming witnesses, because I do note that quite a number of them, at

 8     least in double figures, would be scheduled to testify before the

 9     receipt -- the projected receipt at the earliest time of those reports.

10     So we'll be looking at that.  We'll get back to the Court to the extent

11     we learn something that you need to be advised of and that may require

12     some action.  Thank you, Mr. President.

13             JUDGE KWON:  Thank you, Mr. Tieger.

14             As regards the issue of the summary and providing a draft

15     statement, I don't see any reason why that cannot be sorted out between

16     the parties.

17             Mr. Robinson, do you have any observations?

18             MR. ROBINSON:  Yes, Mr. President.  We appreciate the attitude

19     that the Prosecution has taken and we're committed to working with them

20     to give them as much information about our witnesses as we can.  That's

21     the spirit in which we filed these summaries and the submission and in

22     which we've been making available to the Prosecution draft statements and

23     will continue throughout the Defence case to act in that spirit.  Thank

24     you.

25             JUDGE KWON:  I wonder, Mr. Robinson or Mr. Karadzic, whether the

Page 28809

 1     accused is in the position to make his choice as to the format of -- as

 2     to the trial schedule.

 3                           [Defence counsel confer]

 4             THE ACCUSED: [Interpretation] It certainly would be best if it

 5     would be four days until 2.00 p.m.; however, if that option doesn't work,

 6     I'd prefer to have longer sitting hours for four days a week, four days

 7     is important.  I really have to say that all the people who work with me

 8     have made a huge effort in order to stick to the schedule.  We would have

 9     done a lot better if we could have had more time, until the 1st of March,

10     that is.  I'm just trying to say that it wasn't arbitrary, the fact that

11     we asked for a dead-line until the 1st of March.  I have to say that the

12     people who work for me pro bono and those who are on the list of the

13     Registry worked a huge number of hours each and every day.  I would like

14     to thank them for that and I want you to know that we have done our best.

15     We have made every conceivable effort.

16             JUDGE KWON:  Shall we go into private session briefly.

17                           [Private session]

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 28810

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12                           [Open session]

13             JUDGE KWON:  Yes.  Are there any other matters to raise at this

14     stage?

15                           [Trial Chamber confers]

16             JUDGE KWON:  So the Chamber expects the Defence to file its

17     revised 65 ter list by 14th of September, and the hearing is now

18     adjourned.

19                           --- Whereupon the Status Conference

20                           adjourned at 10.26 a.m.