Tribunal Criminal Tribunal for the Former Yugoslavia

Page 47544

 1                           Monday, 3 March 2014

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 4.01 p.m.

 5             JUDGE KWON:  Good afternoon, everyone.  It's been a while and I

 6     think I already missed the sittings.

 7             Yes, Mr. Robinson.

 8             MR. ROBINSON:  Yes, thank you, Mr. President.  I'd like to

 9     introduce Melani Vranjes, from Iceland.  She's been in this court before

10     but as an intern, but now she's working as a legal assistant for our

11     team, so thank you.

12             JUDGE KWON:  Yes.  Although we are not hearing the evidence today

13     as planned, there are several matters I'd like to deal with.

14             First, I would like to put on the record the Chamber instructed

15     its legal staff last Friday to communicate to the parties through e-mail

16     its decision to grant the Prosecution's request for extension of word

17     limit for its rebuttal and reopening motion.

18             Next, the Chamber will now issue a couple of oral rulings.

19             Yes, I seem to have a problem with my personal LiveNote.

20             First, Chamber will rule on various exhibit related matters

21     pending from its recent MFI decisions.

22             The Chamber recalls that in its decision of

23     25th of January, 2014, it stayed its decision on the admission of MFI

24     D4203 pending the accused uploading a revised English translation.

25     Second, in its decision of 26th of February, 2014, the Chamber stayed its

Page 47545

 1     decision on the admission of MNA D2225, pending the accused making

 2     necessary redactions and uploading its English translation.  On the

 3     28th of February, 2014, the accused notified the Chamber via e-mail that

 4     he had completed the instructed redactions and uploads for both exhibits.

 5     The Chamber has reviewed the revised documents, along with the relevant

 6     transcripts, and is satisfied that D4203 and D2225 can now be admitted

 7     into evidence.

 8             As a separate matter, the Chamber notes that Exhibit P2913 was

 9     originally admitted through Witness Dorothea Hanson, only for a limited

10     purpose as a source document.  However, it was later discussed with

11     Defence Witness Cedo Zelenovic during his cross-examination on the

12     24th of June, 2013, and based on his testimony on its content, the

13     Chamber considers that P2913 can now be admitted in full.

14             Next, the Chamber refers to the accused's 86th Motion for Finding

15     of Disclosure Violation and for Remedial Measures filed on the

16     3rd of February, 2014, and the Prosecution's response to the motion filed

17     on the 10th of February, 2014.  The motion alleges a violation of Rule 68

18     of the Rules for the late disclosure of the closed session testimony of a

19     protected witness in the Stanisic and Zupljanin case and a proof noting

20     pertaining to that witness from December 2011.

21             The Prosecution submits that it was not aware that the accused

22     had not been provided with this confidential transcript from the

23     Stanisic and Zupljanin case, but acknowledges that the material referred

24     to in the motion should, in any event, have been disclosed as soon as

25     practicable pursuant to Rule 68.

Page 47546

 1             The Chamber, by majority, Judge Kwon dissenting, finds that the

 2     Prosecution violated Rule 68 by failing to disclose the transcript and

 3     proofing note as soon as practicable.  However, the Chamber finds that

 4     the accused was not prejudiced by this disclosure violation given that:

 5     One, similar material was already in the accused possession; two, the

 6     relevant material was disclosed to the accused well before the witness --

 7     before the witness testified in this case; and three, the transcript in

 8     question was admitted pursuant to Rule 92 ter in this case.

 9             In the absence of prejudice to the accused, there is no basis to

10     grant the remedies sought by the accused.

11             On my part, I refer to my partially dissenting opinion in the

12     Chamber's decision on the accused's 37th to 42nd disclosure violation

13     motions and declined to make a finding of violation in the absence of

14     prejudice to the accused.

15             Now, I will deal with some inquiries as to several matters.

16             First, the Chamber wishes to address an issue stemming from the

17     accused's "Motion to admit testimony of Dusan Djenadija pursuant to

18     Rule 92 bis," "Motion to admit statement pursuant to Rule 92 bis:

19     Bozidar Popovic," and "Motion to admit testimony of Pedrag Banovic," all

20     filed on the 11th of February, 2014, and from the "Motion to admit

21     testimony of Aleksa Sekanic pursuant to Rule 92 bis" filed on the

22     3rd of March, 2014.

23             It is unclear from the motions, or the appended declarations,

24     when the Defence first contacted these three witnesses, obtained their

25     statements, and learned of their unwillingness to testify.  On the

Page 47547

 1     3rd of March, 2014, the accused also filed the "Motion to admit testimony

 2     of Marko Deuric pursuant to Rule 92 bis."  It is also unclear from this

 3     motion whether the statement dated 22nd of February, 2014, was taken

 4     during the Defence's first contact with this witness.  The Chamber would

 5     therefore ask the accused to file a written submission addressing this

 6     question no later than the 7th of March, 2014.

 7             Now, the Chamber is seized of the Prosecution motion for

 8     extension of word limit for final briefs.

 9             So I wonder whether Defence has any observation on this issue?

10             MR. ROBINSON:  Yes, Mr. President.  We don't have any objection

11     to the Prosecution's motion.  We would ask that we be afforded the same

12     word limit.  And we note that connected to that issue in some way is the

13     length of time in which the parties would have to file their closing

14     brief, and we disagree with the Prosecution's request and have filed our

15     own submission asking for a significantly greater time.

16             And I just would like to observe that the two issues of the word

17     count, the word limit, and the amount of time are very different in

18     the -- in its operation to the parties.  The Prosecution benefits by a

19     lot of words because they have the duty and burden of laying out their

20     case and so the -- it's to their advantage to have as many words as

21     possible.

22             On the other hand, the Defence, with its limited resources, needs

23     as much time as possible in order to prepare its brief, and we don't have

24     the kind of resources that the Prosecution has to be able to do it within

25     the short time-period that they have proposed.

Page 47548

 1             So we feel that it would be the fairest thing if the

 2     Trial Chamber would accommodate both parties by allowing the

 3     Prosecution's suggested word limit and allowing our suggested dead-line

 4     for the filing of the closing brief.  Thank you.

 5             JUDGE KWON:  We'll come to the dead-line for the final brief

 6     soon.  Do you have any observation as to the format the Prosecution is

 7     suggesting, the main text and the use of annex?  I think that issue was

 8     dealt with during the course of pre-trial conference or something like

 9     that?  But I'll hear from Mr. Robinson first.

10             MR. ROBINSON:  Yes, we did have some issues regarding whether the

11     word limit applies to annexes at the beginning of the case in the

12     pre-trial conference stage, but we don't have any problem with how the

13     Prosecution wants to divide whatever word limit that is given, but we

14     think that the word limit ought to be a global one.  We may not choose to

15     have annexes and just simply won't have it all in one text, so we don't

16     think it really makes any difference how the party chooses to use the

17     words that are allocated to it.

18             JUDGE KWON:  According to our practice direction, it is provided

19     that an appendix will not contain legal or factual arguments.  So would

20     you like to make any observation, Ms. Uertz-Retzlaff or Mr. Tieger?  Why

21     do we need to have a final brief that separate the factual description in

22     both part, in the main text and the annex as well?

23             MR. TIEGER:  Well, first of all, Mr. President, I've -- as noted

24     in our submission, the Court's quite correct.  The annexes, I understand,

25     were originally envisioned as an adjunct that would not count against the

Page 47549

 1     word limit and would be limited in certain -- would be quite limited in

 2     scope and in purpose.

 3             Over time, as I believe the Chamber is aware, annexes have been

 4     provided with final trial briefs that have been incorporated into the

 5     word limit because of the nature of the annex and because they were found

 6     to be of assistance to the Chamber, and I -- if I recall correctly the

 7     Court's reference was to the consideration of that issue in the early

 8     phase of the case and the determination that all could be embraced by the

 9     global word limit as Mr. Robinson indicated.

10             Our submission and our description to the Court was by way of

11     transparency to try to assist the Court in understanding how we arrived

12     at our figure.  In that sense, of course, as Mr. Robinson noted, if the

13     parties chose to allocate the total number of words provided in a

14     slightly different way, that presumably wouldn't make a great deal of

15     difference.  What we were trying to indicate was the very specific and

16     concrete assessment that we had made about the utility of our anticipated

17     final brief and where we would focus our attention.

18             It's very clear to us that the more conventional form of annexes

19     where no argumentation whatsoever is permitted, in a case of this scope,

20     would not be anywhere near as useful to the Chamber as what we believe we

21     could provide with a more flexible annex but one we therefore considered

22     should count against the word limit.  So that was our purpose in dividing

23     it in that fashion.

24             It may be true, as Mr. Robinson noted, that the Defence would

25     find greater use in relying more heavily on a narrative and discount the

Page 47550

 1     number of words to be devoted to the annexes.  Our assessment was that a

 2     very concrete focus and analysis on the evidence and analysis of the

 3     evidence would be of the greatest utility and that's what we tried to

 4     indicate by way of our submission.

 5             JUDGE KWON:  So what I want you to be clear as to the number of

 6     words you would need at the end of the day.  So your submission is that

 7     you would need a word limit of 375.000 words in total?

 8             MR. TIEGER:  That's correct, Mr. President.

 9                           [Trial Chamber confers]

10             JUDGE KWON:  The Chamber will come back to this issue later on or

11     maybe issue a ruling in due course.

12             But going back to the issue of the dead-line, Mr. Tieger, by your

13     submission you are opposing to the Defence request for a year?  That's

14     obvious.

15             MR. TIEGER:  Yes, correct.

16             JUDGE KWON:  Can I ask you how the Prosecution comes to the

17     conclusion of 17th of September, 2014, for that dead-line?  How is that

18     calculation based on?

19             So at this moment we are not sure as to the end date for the

20     evidence stage, how extensive the rebuttal would be at all, whether the

21     Defence will have any rejoinder, so how did you reach that date?

22             MR. TIEGER:  Well, the -- I think the Court has anticipated my

23     response to some extent by noting that uncertainty.  We did, in fact, try

24     to project a reasonable end date to the conclusion of all the evidence

25     and then work a certain number of months from there.  So if the Court is

Page 47551

 1     suggesting that if the conclusion of the case was not until, let's say,

 2     the end of August, our projection and our request would be quite

 3     inappropriately founded.

 4             So we had assessed the projected end of the case in the area of

 5     the end of April or so, and then we worked forward from there.  So I --

 6     in our assessment, I should add, was the most conservative possible one

 7     we could make in terms of all those factors, both the projected end of

 8     the case and the amount of time that would be reasonable for completing

 9     the final brief thereafter.  That's -- and I would also underscore that,

10     of course, this is not a precise science.  We did our best to make an

11     assessment based on the -- the most relevant factors we can consider in

12     the experiences of those who had been involved in similar efforts in the

13     past.  But, of course, it is not science.  It's a bit of an art.  And

14     that was the most -- that was the conservative projection we came to.

15             JUDGE KWON:  Thank you.

16             Do you like to add anything, Mr. Robinson?

17             MR. ROBINSON:  No thank you, Mr. President.

18             JUDGE KWON:  And we can expect, can't we, to receive the -- your

19     motion for any rebuttal and reopening by tomorrow?

20             MR. TIEGER:  Yes, Mr. President.

21             JUDGE KWON:  Can we expect the Defence to file its response in an

22     expedited way, for example, by -- in a week's time after receiving that

23     filing.

24             MR. ROBINSON:  I don't think so, Mr. President, because I think

25     it will be necessary to review disclosure materials in order to be able

Page 47552

 1     to access the factors that go towards rebuttal.  And without knowing the

 2     volume, which is based on the material that was indicated in the word

 3     limit's extension, I think it would not be practical for us to do that

 4     within one week.

 5             JUDGE KWON:  Very well.  Very well.

 6             Then shall we discuss about the forthcoming witness, witness from

 7     Croatia.

 8             Your motion for subpoena was filed publicly, wasn't it?  Yes.

 9             MR. ROBINSON:  Yes, Mr. President.

10             JUDGE KWON:  What's the basis on which you are arguing that

11     the -- Mr. Karadzic has made all reasonable efforts to obtain the

12     voluntary co-operation of that witness?

13             MR. ROBINSON:  Well, you could see from the -- from the motion

14     that for more than six months we have been corresponding with the

15     government of Croatia telling them that we will need their witness and

16     had their assurance, in principle, that he would testify, but on the two

17     dates on which we scheduled the testimony, failed to appear.  And the

18     last correspondence we had from them, since its confidential I won't go

19     into the exact wording of it, but didn't provide a very convincing reason

20     for -- or even much indication that the date had been taken very

21     seriously.

22             So we're putting it to the Chamber that we've done everything

23     possible we could do to get the voluntary co-operation within a

24     reasonable time of the Croatian authorities to have this witness before

25     the Chamber.  If you want to give them more time and have us issue yet

Page 47553

 1     another notice, we're happy to do that.  But given that you had ordered

 2     us to file all motions by today, we thought we should take the most

 3     aggressive approach to closing our case.

 4             JUDGE KWON:  Yes, Mr. Tieger.

 5             Yes, Ms. Uertz-Retzlaff.

 6             MS. UERTZ-RETZLAFF:  Your Honour, the Prosecution usually

 7     abstains from getting involved and takes no position on subpoena motions,

 8     and we will do it also this time.  But I would like to mention that the

 9     Croatian authorities have themselves now proposed a date until -- on the

10     date they want to appear, and as this date is actually earlier than the

11     date the Defence proposes, I do not really see a need.  It's, to me, not

12     really logical to file this now.

13             But as I said, I will not take a position.

14             JUDGE KWON:  That's an observation, fair enough.  But I wanted to

15     ask the Prosecution whether we need this testimony at all.

16             So we -- I don't see Ms. Edgerton, but you, I think you're

17     capable of dealing with it.  Yes, Ms. Uertz-Retzlaff.

18             MS. UERTZ-RETZLAFF:  Your Honours, given the fact that the

19     databases used by the Croatian are kind of differently organised, we

20     always have taken the position that we need some clarification and some

21     checking from the respective intercept witness.

22             However, the witness does not have to appear here in court to do

23     that.  All we would need is a spreadsheet in which the findings of the

24     checks by this intercept witness would be found, and I can actually give

25     you an example:  We have admitted already in court P04780 which has

Page 47554

 1     exactly such a chart.  So if such a chart would be provided but --

 2             JUDGE KWON:  Just a second.  Is it a public document or

 3     confidential?  If it is public, why don't we upload it to take a look.

 4             MS. UERTZ-RETZLAFF:  I think it is public but I am not

 5     100 per cent sure right now.

 6             JUDGE KWON:  Yes.  Let's not broadcast, just in case.  P4780.

 7             THE REGISTRAR:  Yes.

 8             MS. UERTZ-RETZLAFF:  It is such a chart that we have actually

 9     tendered when the witness testified, and it contains all the information

10     that the witness checked and clarified and we were all satisfied with the

11     authenticity after that chart was provided, and it could be done in that

12     same way here.

13             JUDGE KWON:  And which exercise could be done outside the

14     courtroom in co-operation of all the parties involved?

15             MS. UERTZ-RETZLAFF:  Actually, this exercise has to be done

16     outside of the courtroom because the witness has to basically look at the

17     documentation he has available, and that's why, yeah, why it can be done

18     in a written way.  And as you can see, the questions:  He makes comments

19     on the summary, whether it is a summary, whether it is an intercept,

20     typed intercept, he makes certain comments on things that he observed,

21     and that's exactly what is needed to establish authenticity.

22             If you want more details, I would have to need to go into

23     private session because that's matters that were discussed in private

24     session with the witness when he explained his database.

25             JUDGE KWON:  There may be an issue as to whether Defence could

Page 47555

 1     get the same co-operation the Prosecution would have got with the

 2     government, but except that, do you have any observation to make,

 3     Mr. Robinson?

 4             MR. ROBINSON:  We would welcome that, Mr. President, if the

 5     Prosecution is satisfied to greet the authenticity.  When we receive this

 6     information, we'll do everything we can to obtain that.

 7             JUDGE KWON:  That is something the Chamber has no reason not to

 8     welcome it.

 9             But, Ms. Uertz-Retzlaff, you agree to that?

10             MS. UERTZ-RETZLAFF:  Yes, Your Honour.

11             JUDGE KWON:  Very well.  If the parties could endeavour to do

12     that as soon as practicable.

13             MR. ROBINSON:  Yes, we'll get right on that.

14             JUDGE KWON:  Thank you.

15             I think I have exhausted all the items that I have prepared, but

16     I wonder whether there is anything to raise.

17             Yes, Ms. Uertz-Retzlaff.

18             MS. UERTZ-RETZLAFF:  Yes, we are just wondering about which kind

19     of co-operation is required from us?  Because it's the Defence who made a

20     request to the Croatian authorities and it should now be acted upon.

21             MR. ROBINSON:  Yes, Mr. President, we'll send a letter to the

22     embassy with the chart and with our documents listed in the blank parts

23     of the chart for them to fill in.  We'll request that they do that.  Ask

24     them if they could give us a projected date upon which they could

25     complete it, if they're willing to do that.  And then we'll report to

Page 47556

 1     everyone as soon as we hear something.

 2             JUDGE KWON:  Then I could take it that you would withdraw the

 3     motion for subpoena?

 4             MR. ROBINSON:  Yes.

 5             JUDGE KWON:  Thank you.

 6             Yes, Mr. Karadzic, do you have something to raise?

 7             THE ACCUSED:  Nothing, your Excellency.  Just to say good

 8     afternoon.

 9             JUDGE KWON:  Yes, Mr. Tieger, do you have anything to raise?

10             MR. TIEGER:  No, Mr. President, nothing further.

11                           [Trial Chamber confers]

12             JUDGE KWON:  Very well.  The hearing is adjourned.

13                           --- Whereupon the hearing adjourned at 4.31 p.m.

14                           sine die