Tribunal Criminal Tribunal for the Former Yugoslavia

Page 767

1 Thursday, 11th March, 1999

2 (Pre-trial Conference)

3 (Open session)

4 (The accused entered court)

5 --- Upon commencing at 10.07 a.m.

6 JUDGE MAY: Yes. Let the registrar call the

7 case.

8 THE REGISTRAR: Good morning, Your Honours.

9 Case number IT-95-14/2-PT, the Prosecutor versus Dario

10 Kordic and Mario Cerkez.

11 JUDGE MAY: Appearances, please.

12 MR. NICE: For the Prosecution, Geoffrey

13 Nice, Kenneth Scott, Susan Somers, and Patrick

14 Lopez-Terres; case manager, Alinde Ver Haag.

15 JUDGE MAY: The Defence?

16 MR. SMITH: For the Kordic defence, Your

17 Honour, Turner Smith and Mr. Mitko Naumovski, my

18 co-counsel, and two colleagues that I would like to

19 introduce to you, Mr. Stephen Sayers from our firm and

20 Mr. Bob Stein from the firm of Stein, Volinsky, and

21 Callaghan.

22 JUDGE MAY: Thank you.

23 MR. KOVACIC: (Interpretation) Thank you,

24 Mr. President. Counsel for the accused Mario Cerkez,

25 Bozidar Kovacic, attorney from Rijeka, and may I

Page 768

1 introduce my assistant, Mr. Pavlekovic.

2 MR. PAVLEKOVIC: (Interpretation)

3 Mr. President, Your Honours, I should, first of all,

4 like to address the Court in Croatian, if I may?


6 MR. PAVLEKOVIC: (Interpretation) Thank you.

7 I am attorney Vladimir Pavlekovic from Zagreb, and I

8 have a private practice there. Thank you.

9 JUDGE MAY: I want to ensure the accused can

10 hear in a language which they understand.

11 THE ACCUSED KORDIC: (Interpretation) Thank

12 you once again for your kindness and understanding.

13 Yes, I do understand Croatian.

14 JUDGE MAY: Thank you.

15 THE ACCUSED CERKEZ: (Interpretation) Thank

16 you very much. I understand everything.

17 JUDGE MAY: Very well. Thank you.

18 Now, the purpose of this hearing is

19 essentially a pre-trial conference with this case

20 listed to start next month.

21 The matters which are outstanding, which I

22 have in mind to deal with today, are, first of all, a

23 motion for provisional release, and we will hear any

24 submissions which any party may wish to make on that;

25 questions then of readiness for trial; the status of

Page 769

1 disclosure and discovery; next, then the Rule 73 bis

2 requirements, and we will go through that Rule in due

3 course; the remaining motions, which have very recently

4 been filed, which I hope at least we can discuss, they

5 involve a motion about trial procedure from the

6 Prosecution filed two days ago; the status of agreed

7 facts and admissions, if any. There is a Defence

8 motion concerning the advance notice of evidence

9 obtained during a search. Again, it may be that we can

10 discuss that. Finally, a timetable for trial and any

11 useful rulings we can make in relation to the trial.

12 We have all day for this hearing, although I

13 hope we can deal with the matters this morning. If

14 there comes a time when there are matters which the

15 parties wish to discuss, of course, they shall have

16 time to do so during the day.

17 That is the proposed timetable agenda for the

18 hearing.

19 Before we start, are there any matters which

20 anybody wishes to raise at the very outset about that

21 timetable agenda?

22 Yes, Mr. Smith.

23 MR. SMITH: Your Honours, I would

24 respectfully suggest that we put the suggestion of

25 provisional release at some point in the discussions

Page 770

1 after the discussion of readiness for trial and Rule 73

2 bis requirements.

3 JUDGE MAY: Yes. Seems sensible.

4 MR. SMITH: Thank you, Your Honour.

5 JUDGE MAY: Let us then move to the position

6 of readiness for trial. It may be as well to start

7 with matters of discovery and what the state of

8 discovery is, at the same time having open Rule 73 bis

9 which deals with pre-trial conferences.

10 Yes. Mr. Nice, we have your notice of

11 compliance of the 5th of March with the Rules. In due

12 course, we shall have to return to the witness list and

13 how that is to be dealt with, but at this stage, is it

14 your position that apart from one or two matters and

15 one or two witnesses that there may be -- by "one or

16 two" I mean a number but not a substantial number or

17 anything like that -- you have complied with all the

18 requirements?

19 MR. NICE: Yes. There is a problem about

20 translation, and I can bring the Court up to date with

21 that position. There is an additional list of

22 witnesses which I have already distributed to my

23 learned friends. I will make that available

24 immediately to Your Honour and Your Honour's

25 colleagues. It has itself to be slightly corrected

Page 771

1 today, but the computer system was not functioning at

2 the time one or two entries were sought.

3 There is the question of summaries which has

4 been raised by my learned friends yesterday in a

5 meeting that we had together. Perhaps I can deal with

6 those issues now?

7 Summaries first. Seventy-three suggests or

8 requires, it depends how you view it, that at the

9 service of the list of witnesses, there should also be

10 summaries provided. I first raised this matter with

11 the Court a long time ago and explained to the Court

12 that practices as to summaries varied and asked the

13 Court if it would indicate what it would desire. At

14 the next hearing, although we dealt with the timing of

15 a witness list, I overlooked to repeat my request to

16 the Court as to what it would most wish by way of

17 summaries. Since then, there have been some informal

18 discussions through the usual channels about either

19 summaries or the possibility of the Court working on

20 full witness statements, which is certainly the course

21 preferred by one of the Chambers in the Tribunal, or

22 maybe more than one.

23 So summaries have not been provided with this

24 witness list, although it is true to say that an

25 updated and improved version of the list, which will

Page 772

1 again be served when one or two other matters have been

2 researched through the computer system, assuming it is

3 working, will at least identify, for example, town

4 locations, but that's not a summary. So summaries is

5 one issue, and I think my friends are going to raise

6 that.

7 Translation. This morning's information is

8 that the outstanding translation from B/C/S into

9 English should be completed within a fortnight.

10 JUDGE MAY: Which documents are those which

11 are untranslated?

12 MR. NICE: From B/C/S into English, I'm

13 afraid to say I haven't those details to hand, but they

14 are statements and, I think, exhibits, I'm not sure, or

15 attachments.

16 As to translation the other way around, from

17 English into B/C/S, subject to the other requirements

18 of the Tribunal as a whole being given greater priority

19 or being deemed to have greater priority by the

20 department, the estimate was of one month for

21 completion of that translation. It was proposed to me

22 that we might prioritise with the translation unit

23 material for translation, although to date I have not

24 prioritised material for various reasons; it did not

25 seem appropriate to do so. Subject to any other

Page 773

1 decisions that may be made today, I am, of course,

2 prepared to ensure a sensible prioritisation of

3 material.

4 That, I think, leaves the additional

5 witnesses today and the list that was served, together

6 with the materials, in compliance with the order last

7 Friday. One observation: The list is, of course,

8 long, and it may well be longer than the Court or,

9 indeed, the parties, at earlier stages, forecast.

10 There are several reasons for that. First, the

11 Prosecution does not know the Defence case at all and,

12 within limits, has to allow for all possibilities. We

13 know there is provision for rebuttal. We would rather,

14 in the conventional way, take care of all identified

15 issues as part of our case.

16 Second, not only is there no knowledge of the

17 Defence case, but despite efforts that have been

18 made -- I make absolutely no complaint because those

19 representing the defendants have to act on

20 instructions, of course -- but on indications to date,

21 agreement of facts may prove rather difficult. So far,

22 very little, if anything material, has been capable of

23 agreement. In those circumstances, we have to approach

24 the case on the basis that everything will have to be

25 proved, which means in relation to particular topics,

Page 774

1 it is essential at this stage that we identify all the

2 witnesses who might prove a particular issue or topic,

3 although with the unfolding of evidence, we have every

4 expectation that there will be a very large number of

5 them, the identified witnesses, who, of course, will

6 not be called, even if -- it cannot be possible, for

7 example, to have witness statements read, summarised,

8 or agreed as we had all perhaps earlier hoped.

9 Third, and really building on those first

10 points, there has been a general encouragement from

11 Mr. Smith to be, as it were, overinclusive -- I can't

12 remember his precise term but he used it on the last

13 occasion -- to overprovide, and indeed the Court's

14 order by which we were required to provide statements

15 last Friday underlined what may be the practice about

16 adding to materials after today's date. So the list is

17 long, but it is a great deal longer than it is, in

18 reality, expected will be the number of witnesses

19 called to give evidence.

20 Can that bring me back to summaries and

21 whether summaries or full statements are an appropriate

22 way for the Court to proceed? Of course, there would

23 be no expectation on our part of a Court, even if in

24 principle it worked with full statements, being

25 expected to go through this number of statements. If,

Page 775

1 in principle, the Court would prefer to have

2 statements, there are various possible ways of

3 proceeding.

4 One is that the Court, like my learned

5 friends, of course, will be notified a fortnight in

6 advance of witnesses forthcoming, and that that would

7 provide enough of a forecast or foreshadowing of

8 evidence for the Court. If not, then an alternative

9 route that I have considered this morning, although I

10 haven't yet had a chance to discuss it with my own

11 colleagues because they have all been busy on other

12 things, but an alternative course would be that we

13 could identify, within the overall lists of witnesses,

14 core witnesses who we have every expectation of calling

15 in any event, and those could be witnesses who the

16 Court, if they so decided, would find it helpful to

17 read, and it will be possible perhaps to summarise

18 others. That's one possible solution to that problem.

19 JUDGE MAY: I realise there has been

20 discussion through the usual channels. What the Rules

21 require are summaries, and I think with this number of

22 witnesses, we will require summaries.

23 Let me, at the outset, make this plain: The

24 number of witnesses, as you say, Mr. Nice, is far

25 greater than anything that was forecast. A trial with

Page 776

1 334 witnesses or anything approaching that is wholly

2 unacceptable. It is an imposition on the Chamber, on

3 the Court, it is an imposition on the Defence, and

4 cannot be tolerated.

5 The position is that this institution, this

6 Tribunal, is in the position of the trials taking far

7 longer than anybody had anticipated, with the result

8 that men are in custody for a long time before their

9 cases are brought to trial. All of this is a matter

10 clearly of grave concern, and I say that at the outset

11 so it can be heard, that this Chamber is proactive and

12 we will take a view about, it may be, the overall

13 number of witnesses which should be called.

14 I remind you of Rule 73 bis (C) and (D) which

15 permits the Trial Chamber to call upon the Prosecutor

16 to shorten the estimated length of the

17 examination-in-chief for some witnesses and to reduce

18 the number of witnesses if it considers that an

19 excessive number of witnesses are being called to prove

20 the same facts. The expression "call upon" is

21 rather Delphic, and I think that we may be inclined to

22 take a more active view of that.

23 Clearly it is for the Prosecution to

24 prosecute and not for the Trial Chamber to interfere

25 with that right, but that said, it is for the Trial

Page 777

1 Chamber to control the proceedings, and that includes

2 the amount of evidence that is put before it that is

3 acceptable.

4 Now, we hear what you say when you say that

5 you do not intend to call or you don't anticipate that

6 all or anything like that number of witnesses will be

7 called. But what, from the outset, I would invite you

8 to have in mind is that we will take a view, in due

9 course, if matters are prolonged, about the number of

10 witnesses who are to be called to prove a point, and if

11 necessary, we will impose an order. So in those

12 circumstances you may think it sensible to call your

13 best witnesses as early as you can with a view to

14 ensuring that those are heard.

15 I understand in Blaskic that matters started

16 off in much the same way, with the Prosecution

17 producing or saying they're going to produce some 300

18 witnesses, and the Trial Chamber took a view about

19 that. In the event, just over 100 were heard. That's

20 a lot, but it's clearly a much more acceptable figure.

21 The upshot is this: That I would invite you

22 to have in mind the Trial Chamber's powers, and what I

23 said, and the fact that we shall be exercising them.

24 It's against that background that we will require

25 summaries of these various witnesses. They need not be

Page 778

1 lengthy. If you wish to serve, if you think it right

2 to serve the statements upon the Trial Chamber, so be

3 it, but we will require summaries of them in order that

4 we can understand the case fully and grasp what it is

5 that is proposed that the witnesses should say. These

6 need not be detailed; a reference to the village, or

7 the issue is, and a very short summary of what it's

8 proposed the witness would say would be sufficient.

9 MR. NICE: We will comply with that, of

10 course. Indeed, before we left on hold the issue of

11 what the Court would require, an exercise had been

12 started. I should be able to comply with that

13 requirement, I hope reasonably swiftly, although not

14 immediately. It will take some time to accomplish

15 that.

16 As to the exercise by the Court of its

17 powers, I have fully forecast that the Court would have

18 those powers in mind and indeed would substantially

19 want the Court to do so because, from the beginning, my

20 concern and our concern has been to bring this case not

21 only to trial, but to get through the trial swiftly.

22 Can I just, however, first of all remind the

23 Court that in its most recent order it underlined the

24 fact that the further evidence requirements are

25 limited, in the judgment of the Court, to new

Page 779

1 developments in investigation, which is one of the

2 reasons we have to list witnesses at this stage. Can I

3 simply remind the Court that the attitude of witnesses

4 to coming to the Tribunal is changeable over time, and

5 if, of course, witnesses of first choice are no longer

6 available to us for whatever reason, we really have to

7 have listed the witnesses who can help in that same

8 area. So that's why there are so many witnesses

9 listed.

10 Can I return to that issue in just a minute,

11 with a reference to one of the documents I'm proposing

12 to help the Court --

13 JUDGE MAY: Before you do, before you do, let

14 us deal with this matter of summaries. I anticipate it

15 will form part of the order. When do you expect you

16 can have the summaries ready, or the bulk of them?

17 MR. NICE: The bulk of them, I would hope, in

18 a few weeks. Not next week or the week after, I would

19 think, only shortly before trial, but they can be

20 provided on a rolling basis. Because in this case, if

21 there are existing documents, that is, first-draft

22 summaries, to work on, as those summaries are tidied

23 up, they can simply be handed over in batches. It

24 doesn't have to go through me on every occasion for a

25 final decision because the document is not a document

Page 780

1 of record, it is a document of guidance and

2 assistance. So it doesn't have to be brought for final

3 decision and can be simply worked on by people and sent

4 out. But I don't think completion could be effected,

5 given all our other duties at the moment, either (a),

6 by the time of the delivery of the pre-trial brief,

7 which certainly will be occupying my time over the next

8 ten days, as will other documentary exercises in which

9 I'm going to be involved, so I think it can be provided

10 by then in full, but we can easily provide a rolling

11 series of summaries.

12 (Trial Chamber deliberates)

13 JUDGE MAY: It may be sensible to look at it

14 in this way: At least half the statements, at least

15 half the summaries, I mean, by some date at the

16 beginning of April --

17 MR. NICE: Yes.

18 JUDGE MAY: -- the remainder within three

19 weeks.

20 MR. NICE: I'm sure we could accomplish

21 that.

22 JUDGE MAY: It's just that it ought to be in

23 an order. So the 6th of April I see is the date for

24 the Defence pre-trial brief, so the 6th of April, half

25 the summaries; the remainder three weeks later.

Page 781

1 Of course we come on to the question of the

2 batting order of your witnesses.

3 MR. NICE: That's been agreed, incidentally,

4 with my learned friends yesterday at the meeting. I

5 can deal with that.

6 JUDGE MAY: Yes. The summary is to include,

7 clearly, those witnesses who are to be called first.

8 MR. NICE: Of course.

9 JUDGE MAY: Yes, we --

10 MR. NICE: I was responding to Your Honour's

11 earlier points. I don't know if I can just conclude

12 what I was going to say about that.

13 The Court refers to the large number of

14 statements in its general observations. There is very

15 limited prospect of agreement here, and it may be that

16 practices as to agreement and admissions differ. It

17 can be the case -- and I rather forecast this from some

18 of the things that Mr. Smith said on earlier

19 hearings -- that where facts are overwhelmingly proved

20 by evidence to a common effect, and where there is no

21 contrary case, then, typically, in some jurisdictions

22 those matters can either be read or agreed because

23 they're not actively challenged.

24 Now, I don't know what, if anything, is the

25 impediment to any agreement in this case, and it may,

Page 782

1 of course, be that agreements are in due course made.

2 Typically, in some jurisdictions, one would discover

3 what those impediments are in cross-examination because

4 cross-examination will identify issues. I know

5 cross-examination is another topic to which we must

6 turn.

7 Here, if cross-examination is of the form

8 that I have proposed in our motion, then by one means

9 or another, evidence will be shortened. Because of

10 course, if matters aren't challenged, then it is

11 possible, at a stroke, to excise a whole lot of

12 evidence that would simply go to the same effect.

13 Finally, I said I would mention one of the

14 documents that I have served because it's a convenient

15 time just to draw it to your attention and then make

16 one other observation about an existing document. If

17 the Court would be good enough to look at enclosure 2

18 of our recent motion -- or annex 2, I beg your

19 pardon -- and to the third sheet in from the back, you

20 will see one document that is in the process of

21 preparation and will, in all probability, be completed

22 in the same form by the time of the service of the

23 pre-trial brief.

24 Page 7, as you have it here, is a sample

25 page. Page 7 at the bottom, that is.

Page 783

1 I beg your pardon; it's called Annex 3. I'm

2 grateful to Ms. Verhaag. It's called Annex 3, and in

3 my papers it's attached to Annex 2.

4 Annex 3: What I've had done here is the

5 following: The top part of the page sets out the count

6 in the amended indictment. This is imprisonment and

7 confinement of Muslims but with several identified

8 locations. The dates are set out, the count numbers,

9 the characteristics, and texts for the crime. Given

10 that this amended indictment contains specified

11 locations, I am obviously under a duty, within reason,

12 to satisfy the test for each location. What follows is

13 an identification, location by location, of which

14 witnesses can give evidence on that topic for that

15 location.

16 Now, it had occurred to me, and it still does

17 occur to me, that this document will be a useful

18 document in any event, for the Court, as a working

19 document. Without going to the longest one, if you go

20 to the third entry, Vitez SDK offices, you can see that

21 there are one, two, three -- four witnesses there who

22 can support, at least it is forecast, can support that

23 allegation.

24 The Court will also see that by use of this

25 document or something broadly similar, and by knowing

Page 784

1 at the stage that evidence is given where the matters

2 are challenged, it will in fact be possible for us in a

3 sensible, systematic, and workmanlike way to reduce

4 very substantially the number of witnesses who will be

5 called, provided only that we know what the issues

6 are.

7 The second thing that I can tell the Court --

8 I'm so sorry. If Your Honour didn't have it, I'll take

9 a pause while he looks at it.

10 I've said in my motion, or the motion, that

11 this may be preferable, so far as the Court is

12 concerned, to the requirement under 73 bis --

13 JUDGE MAY: One moment, please.

14 MR. NICE: So sorry.

15 (Trial Chamber deliberates)

16 JUDGE MAY: Mr. Nice, we think this was a

17 very helpful document because clearly it will spell out

18 the various issues and who it is proposed to call upon

19 them. Clearly you will have in mind calling your best

20 witnesses, or the witnesses on whom you intend to rely

21 most in each case, early on, and the rest will be

22 purely corroborative of the point.

23 MR. NICE: Exactly, sir.

24 JUDGE MAY: It may be that there comes a time

25 when the matter is established, or is established as

Page 785

1 far as it ever is going to be by the witnesses, and

2 this will be helpful in determining that.

3 Could I raise one other matter with you, a

4 more general matter, while we are discussing this?

5 It seems to me that there are two, or will be

6 two, broad issues in the trial. The first broad issue

7 is whether these crimes were committed at all. So

8 taking the example we have in front of us, is it

9 established that Muslims were confined and imprisoned

10 in Kaonik prison? Now, that is essentially, is it not,

11 by way of background, in the sense that it's proving

12 that a crime was committed?

13 The other broad issue, if we're satisfied as

14 to the commission of a crime in a particular instance,

15 is whether it is proved that these accused or either of

16 them was in fact a participant in the crime. Now, it

17 seems to me, thinking about these matters, that the

18 first of those issues is one which one would hope there

19 could be a broad agreement.

20 MR. NICE: Indeed.

21 JUDGE MAY: As to whether the crimes were

22 committed or not; if not broad agreement, that any

23 issue as to whether the crime was committed could be

24 limited, so that the time of the Trial Chamber is not

25 taken up with essentially background issues, not,

Page 786

1 perhaps, concentrating on the crucial issues as to

2 whether there has been any involvement proved by either

3 of these accused.

4 We would therefore encourage the parties, as

5 far as possible, to agree on these background matters.

6 It may be that both sides would have to compromise and

7 a more neutral approach would have to be taken, but

8 taking up a lot of time litigating in this particular

9 trial, whether, for instance, there was imprisonment

10 and confinement in the Kaonik prison, is one thing

11 which we would not encourage.

12 MR. NICE: Well, I entirely agree with the

13 expressions of views, insofar as they are, of the

14 Chamber about the desirability of agreeing underlying

15 facts. Before I part from this document, then, we will

16 complete a document for all counts in the format of the

17 document before you.

18 This observation: In my recent motion, it

19 may be inferred that I was proposing that this was an

20 alternative to the requirement under 73(B)(c), that the

21 list of witnesses should include the points in the

22 indictment to which each witness will testify. Not so

23 the witness list prepared for today's hearings -- I

24 have a draft already, but the final version will come,

25 I hope, before the end of the morning, or indeed before

Page 787

1 the break -- in fact identifies for all witnesses the

2 counts to which that witness's evidence shall go, so

3 that the Court will have the issue dealt with from both

4 sides: Witness to points in the indictment, points in

5 the indictment and witnesses; it has it each way

6 round.

7 Dealing with the -- no, just before I leave

8 these witnesses, one other point: Yesterday, in the

9 meeting, I can tell you Mr. Kovacic raised -- and I

10 think, on reflection, very sensibly raised the issue of

11 would we inform them if and when we knew that a witness

12 is not going to feature because he's refused or for

13 whatever other reason. Of course, sometimes an

14 indicated refusal leads to a second inquiry, but there

15 comes a time when you draw the line.

16 It seems to me that that request by

17 Mr. Kovacic is a sensible one, not least because there

18 should be no representation of an ability to call

19 evidence that you're not able to call by the conduct of

20 a Prosecutor, at least in my judgment. Secondly, on a

21 much more practical basis, if we can go through these

22 lists one way or the other and strike names out, then

23 the lists become even more useful. So I hope that will

24 comfort Mr. Kovacic, but it seems a sensible proposal

25 that he made.

Page 788

1 The other point I perhaps just ought to

2 emphasise, for the Court's assistance, comes from

3 Annex 1 of the motion, and I don't know if you've had

4 an opportunity to look at that, but it's helpful to

5 consider it.

6 JUDGE MAY: Yes, except that the copy that I

7 have, the second page is blank. So I haven't got the

8 list of admissions.

9 MR. NICE: I'm very sorry about that. What

10 Your Honour should have is on the inside of the front

11 page, the request, then a blank page, then something

12 headed "Agreed Facts and Admissions."


14 MR. NICE: Can I hand mine in --

15 JUDGE MAY: Please.

16 MR. NICE: -- simply to save time, first of

17 all, reminding myself of the order of things, and I'll

18 look at somebody else's. If the Court hasn't had this

19 as an annex, I'm very sorry. It was certainly filed.

20 JUDGE MAY: The answer is that we have got

21 that, but where it is, I don't know. It doesn't appear

22 in my documents as I have them at the moment. But

23 don't worry, we have it now.

24 MR. NICE: There are two documents there of

25 significance or importance in the conduct of the case.

Page 789

1 First of all, there is the letter from Mr. Scott which

2 reflected an earlier letter sent as long ago as

3 November 1998, last year, requesting a range of

4 admissions and as to which the Defence are only in a

5 position to agree the first seven, and it may be that

6 the Court would want to have a look at the issues that

7 appear to be requiring determination from the remaining

8 topics. Some of those, it would seem to us -- one has

9 only to look at, I don't know, 12 or 15 -- I mean, many

10 of them, it would seem should be capable of agreement,

11 if not most of them, but, as I say, I make no complaint

12 because if the defendants have given instructions that

13 require all matters to be litigated, that is not

14 something over which I have no control. But there are

15 up to 37 admissions which Mr. Scott helpfully

16 identified last year as being capable, he had hoped, of

17 admission.

18 We then turn to the next sheets, though you

19 will find a letter dated the 28th of February from

20 Sabine Bauer on my behalf to Mr. Turner Smith with a

21 copy to Mr. Kovacic -- it's not a copy, a similar

22 letter to Mr. Kovacic, I beg your pardon. The first

23 document that appears there is a synthesis of the

24 evidence given by an expert under cross-examination in

25 the Blaskic trial.

Page 790

1 There had been, at an earlier stage,

2 reference by Mr. Smith to the possibility of testimony

3 in the earlier trials being read in full, and that is

4 obviously a great deal better than causing a witness to

5 come and say exactly the same thing a second time where

6 everything that would be wanted of the witness has

7 already been given, and it had seemed that this

8 witness, for whatever reason, I may not be able to call

9 live in these proceedings, has nevertheless given

10 evidence of an expert nature, cross-examined on behalf

11 of Blaskic, and that evidence might easily, it had been

12 thought, be of value to this Tribunal. But rather than

13 have it in full and rather labourious -- and that is

14 offensive, unintentionally -- full examination and

15 cross-examination, which is labourious to read, it

16 seemed prudent for us to attempt the exercise

17 reflecting Mr. Smith's earlier suggestion about the use

18 of earlier testimony to synthesise the material, to get

19 the witness to approve it in that state, and to offer

20 it for agreement. But, unfortunately, that can't be

21 agreed.

22 If the Chamber --

23 JUDGE MAY: Just pause there. Just pause

24 there. Let us consider the summary of testimony given

25 in Blaskic by Dr. Pajic.

Page 791

1 MR. NICE: Yes.

2 JUDGE MAY: It raises a broader question of

3 principle which is how right is it to relitigate issues

4 which have been litigated in Blaskic in this trial?

5 Now, of course, I take the point that this is

6 a separate case, these are different accused, and

7 therefore, broadly, there is a right to cross-examine.

8 But the Appeals Chamber in Aleksovski decided that the

9 transcripts of evidence in one case were admissible in

10 another as hearsay evidence, and I would invite the

11 parties to consider how far that can be used in this

12 trial by way of expediting a hearing. Even if the full

13 transcripts cannot be used, taking the case of this

14 particular witness, to explore the possibility of using

15 this statement which, if I may say so, is a much more

16 digestible document than a transcript and much more

17 helpful to a court, how far it would be possible to use

18 this as evidence in chief and, if it was felt necessary

19 to ask particular questions in this case, to have the

20 witness here simply to be cross-examined and thereby

21 save the time of all the evidence in chief.

22 MR. NICE: All of which I agree. In the case

23 of this particular witness, as I have indicated, he may

24 not be available to us live, but I raised with

25 Mr. Smith, I think in correspondence -- better check

Page 792

1 that -- "If there are just one or two issues in

2 addition to those already raised that you want to

3 raise, why not ask whether he can agree those?" Of

4 course, I have very much in mind the experience

5 where -- from other jurisdictions where competing

6 experts are invited to discuss matters together to

7 produce a common report and where experts are much more

8 freely available to the other side for discussion and

9 so on than might be the practice here, but those other

10 practices all lead to the better presentation to the

11 trier of fact of expert opinions than slogging it out,

12 in the vernacular, on both sides at great length.

13 Any witnesses that can be read or agreed --

14 sorry, read from earlier cases or whose evidence can be

15 summarised in this way or in some other way, we judge

16 would be extremely helpful to this Chamber, but to some

17 degree, if not almost wholly, we are now in the hands

18 of the Defence subject to the reach of the ruling in

19 the other case that has just been referred to.

20 JUDGE MAY: It may be that you would want to

21 put in an application in relation to this particular

22 witness, for instance, and any others in a similar

23 position.

24 MR. NICE: Thank you.

25 JUDGE MAY: Then, of course, we would have to

Page 793

1 rule upon the matter.

2 JUDGE BENNOUNA: (Interpretation) Mr. Nice,

3 you're referring to this annex and to the possibility,

4 as the Presiding Judge just said, of having the

5 transcript of this witness on the facts, Mr. Pajic. On

6 the following page, 5.136, there is the opinion of the

7 expert, and we have our own idea about the

8 cross-examination, that is to say, that by looking at

9 this document, we can see there are facts and there are

10 the interpretations of those facts because we say that

11 their creation was, for example, for defence reasons.

12 "These amendments show the HZ-HB's aspiration to

13 secede" and so on, "The Defence in cross-examination

14 alleged 'that aggression from the Yugoslav Army and the

15 Chetniks' and the impotence of the government in

16 Sarajevo led the HZ-HB to organise themselves for the

17 sole purpose of defence."

18 It is my question then, don't you feel -- and

19 perhaps this question also applies to the Defence --

20 that once we have examined the same facts, then we

21 could distinguish between the facts themselves, which

22 are indisputable and which exist and through different

23 means, unless, of course, the Defence wishes to dispute

24 this fact, and also the interpretation of the fact

25 because at a given point in time, we can say that some

Page 794

1 of these facts are established facts, adjudicated

2 facts. We can say, for example, that there were

3 prisoner camps and there was an organisation for

4 defence, there was a proclamation made by the republic,

5 et cetera. So, in a way, there is also a way in which

6 these facts are interpreted by one side or another and

7 the meaning that may be given to these facts. If you

8 are in agreement with the Defence, then we could

9 perhaps avoid having to reprove facts which have

10 already been proven and that no one intends to dispute,

11 unless, of course, one wishes to dispute the facts

12 themselves, in which case then we must go immediately

13 to the meaning you would like to give to these facts,

14 which could be different from one case to another.

15 That is the question I would like to put to

16 you, which also is addressed to the Defence. Thank

17 you.

18 MR. NICE: I am certainly hopeful that

19 underlying facts will emerge as agreed or, indeed, can

20 be agreed from the beginning, and indeed the expert's

21 opinion, where an expert is called, would more

22 conveniently arise on agreed or established facts, for

23 him to have to be postulating facts and suggesting

24 conclusions in the event that those facts ultimately

25 are proved. So, yes, indeed, it is highly desirable

Page 795

1 that facts can be agreed or, alternatively, proved or

2 effectively proved by the time that the expert comes to

3 give his evidence.

4 The only other point I would make that

5 derives from Your Honour's question is that you will

6 see that this synthesis that I have produced takes into

7 account cross-examination, and if we've missed

8 something in the cross-examination that the Defence

9 would want in, it is the sort of document that is

10 capable by agreement of amendment for the better

11 presentation to the Chamber.

12 I don't know if that meets Judge Bennouna's

13 concerns. If so, can I turn to the next document in

14 the same annex?

15 The Chamber will recall reference on the last

16 hearing to something called a statement of facts. Now,

17 I don't know if the Chamber has had an opportunity to

18 read and consider that statement of facts. It is one

19 of the annexes to this. In fact, it is Annex 2, and if

20 the Chamber hasn't read it, it will find it an

21 extremely useful summary of the case against these

22 defendants.

23 JUDGE MAY: Yes. It was that that I had in

24 mind when referring to the two broad issues.

25 MR. NICE: Yes, well --

Page 796

1 JUDGE MAY: Because it contains, helpfully,

2 the cases it has put against the individuals as it has

3 put individual perpetrators and includes these two

4 accused and then there are a number of others.

5 MR. NICE: There are some others identified.

6 So the document is a very helpful summary of the

7 Prosecution's case, and as the Court will realise, the

8 Defence have had this document for a year.

9 Contained within that document were analyses

10 of the evidence on a village-by-village basis. A later

11 document, served ex parte and discussed lightly at the

12 last hearing, but served ex parte and with respect to

13 the application to amend the indictment, contained a

14 similar analysis village by village for other

15 locations.

16 If the Tribunal would turn now to what is

17 page 5.129, there begins a document which is an extract

18 absolutely word for word, no amendments of any kind,

19 from those two documents: the statement of facts and

20 the document served on Judge McDonald ex parte and part

21 of a document that is not a public document, but it

22 seemed to me that it would be helpful to serve on the

23 Defence, for consideration for agreement, an analysis

24 of the village-by-village evidence.

25 Again, if we move to one that is shorter

Page 797

1 rather than longer, so if we turn over one sheet to

2 5.128, Behrici, paragraph 8 identifies simply the

3 location, the census returns of the village; paragraph

4 9 sets out that the village was attacked by the HVO on

5 the 18th of April -- the dates are set out separately

6 on the left-hand column -- on this day there was only

7 sporadic fire, shooting could be heard from the

8 direction of Gomionica and Svinjarevo, and as a result,

9 most of the people of Behrici fled on the 18th and the

10 following days. About 40 or 50 men remained who were

11 able to fight and so on.

12 Now, I wrote to my learned friends inviting

13 them not actually at that stage immediately to agree

14 these facts but to give consideration to agreeing

15 them. What I meant by that was explained in a later

16 phone call dealt with by Mr. Scott initially, and it

17 came to this: Of course, where you've got detailed

18 facts, as set out here, in respect of villages for

19 which other evidence has been given in other cases and

20 for which some evidence may be given in this case in

21 any event, there has to be some flexibility. Putting

22 it shortly and giving a typical example, if an analysis

23 of a village speaks of the village being defended by

24 ten men and either evidence in another case or a

25 witness makes it clear that it was 12, 15, or 20,

Page 798

1 whatever the Defence might have initially been prepared

2 to agree has got to be subject to the potential for

3 correction and some alteration. So I had in mind the

4 realities of these cases. Nevertheless, it seems to me

5 that it would save months of time if the underlying

6 facts on a village-by-village basis could be agreed.

7 Now, let's not beat about the bush. If all

8 is agreed save HVO, we could be told that and we could

9 focus our evidence on those bits of the evidence that

10 go to show who the perpetrators were.

11 That analysis, as Your Honours will see,

12 covers all villages and locations.

13 At the moment, as I understand it, the

14 Defence are not able to agree any of this, and as I

15 understand it, not even the geographical locations of

16 the villages or the census returns detailing the

17 composition of the villages, and that's unfortunate.

18 It seems to us that this case would become immensely

19 more manageable were we in the happy position of being

20 able to agree the underlying facts subject to whatever

21 reservations the Defence case may oblige them to make.

22 Perhaps this brings me back to the

23 distinction and approach to admissions that may exist

24 in different jurisdictions. In the jurisdiction where,

25 if you're presented with 20 statements on a topic on

Page 799

1 which you have no instructions, specific instructions

2 to counter the statements, you can, quite responsibly,

3 make the decision to agree them. Perhaps there are

4 other jurisdictions which say you must never do any

5 such thing; you must simply compel the prosecutor, in

6 trench warfare, to move every part of his case inch by

7 inch. Ultimately, if that's what's required of us,

8 that's what we'll do.

9 JUDGE MAY: Let me deal with something while

10 it is in my mind. It really goes back to Rule 73 bis.

11 I see that we are on 73 bis (ii). We have ordered a

12 pre-trial brief, we have fixed a date for trial, and we

13 are on admissions by the parties and a statement of

14 contested matters of fact and law.

15 It would be of immense assistance to the

16 Trial Chamber to have agreement about matters which

17 really cannot be a subject of dispute, such as the

18 position of the village, the fact that there was a

19 census, the fact that there was an attack and damage

20 was caused and there were casualties. If there is

21 agreement about such matters, then at least they don't

22 have to be proved and the Trial Chamber can concentrate

23 on the important things, which may be the nature of the

24 attack and who was involved in it.

25 Mr. Nice, this is a matter which does involve

Page 800

1 the Prosecutor, which is this: The way in which

2 evidence is given varies, and in some jurisdictions, I

3 think it's called the narrative form of giving of

4 evidence is followed and the witness simply tells his

5 or her story.

6 Speaking for myself, I should say, and I

7 underline that, that does take up a lot of time, in my

8 view, and I would wish -- again speaking for myself; we

9 will have to discuss it as a Trial Chamber -- but I

10 hope that it will be possible in this case to have the

11 witnesses concentrate on the important issues, and if

12 matters can be got out of the way by way of agreement,

13 then witnesses can give their evidence briefly and

14 succinctly on the particular point in issue.

15 MR. NICE: Precisely so. I made some passing

16 reference to this in the motion on procedure, proposing

17 indeed that matters not in dispute be agreed and that

18 the traditional form of direct examination, as the

19 Americans call it, or examination-in-chief, as we know

20 it, should be pursued. That indeed would save huge

21 amounts of time, and if there was only one dispute as

22 to a uniform or the material available to identify the

23 nature of an attacking person, although I'm still not

24 suggesting anything like the number of witnesses listed

25 all together would be called, but, in fact, you can get

Page 801

1 through a large number of issues in a short space of

2 time when the issues are narrowed in that way.

3 Can I, rather than keep popping up and down,

4 since I have been dealing with the possibility for

5 agreement, deal with one other document now? It's

6 Annex 4, I think. It was something that we discussed

7 at the meeting of counsel yesterday. I trust the Court

8 has the document.

9 JUDGE MAY: Four.

10 MR. NICE: Annex 4. Again, I understand that

11 practices on either side of the Atlantic differ, and it

12 may well be that it would be thought I am being far too

13 generous to the defendants in proposing the preparation

14 and service of a document of this kind by those more

15 familiar with the American practice, and it may be that

16 in America, documents of this kind are reserved for

17 service until the end of the trial at the earliest, in

18 the same way, as I understand, that exhibits aren't

19 shown in opening statements in detail, apparently, but

20 still ...

21 I am afraid to say I have to be guided by my

22 own experience of what is likely to help a Trial

23 Chamber, and it seemed to me, in a case that has a wide

24 geographical sweep and a wide sweep of time, that the

25 Chamber will want some kind of route map through the

Page 802

1 materials of one kind or another. The best route map,

2 in my experience, is a chronology that draws together

3 either all or nearly all of the different types of

4 material.

5 So here you have -- and it's in draft only --

6 simply two sheets and a bit of what I am prepared to

7 make available to the Chamber and, of course, to my

8 learned friends. You can see exactly how things are

9 set out: date, place, where relevant, and event, and

10 then a column permitting the Defence to admit or to

11 make other comment as to the fact, an exhibit, where

12 the exhibit is material, and a column indicating

13 whether the exhibit is admitted for what it is.

14 If we just run through the first few entries,

15 the first entry, recognition of Bosnia and Herzegovina

16 by the European Community and, similarly, by the United

17 States, something about the presidency of HZ-HB, then

18 in italics, because it concerns Cerkez more than

19 Kordic, a meeting between Muslims, and names are

20 identified, and so on, in Vitez; then another reference

21 to a crisis meeting --

22 JUDGE MAY: Let me interrupt, if I may, just

23 to understand something. What is the purpose of

24 italics?

25 MR. NICE: Italics distinguishes material

Page 803

1 specific to Cerkez from material specific to Kordic.

2 Then we come to, on the 22nd of April, an

3 order from Kordic issued under the authority of the

4 Ministry of Defence with the order number given, that

5 is, the institution's identifying marks given; 3rd of

6 May, in Busovaca, a decision by HZ-HB signed by Kordic,

7 and so on.

8 A schedule of this form, apart from providing

9 the Chamber with a route map through the material,

10 would place the Defence in the ideal position of being

11 able to mark what is agreed and what is challenged.

12 Now, documented meetings of the defendants,

13 documented by their own documents, frankly should not

14 be challenged. This isn't a game. It is not a "Can

15 you prove the document, and if you prove the document,

16 we will reluctantly not challenge it"; this is a trial

17 on an important issue, and there have been

18 protestations about the willingness to agree matters.

19 Now, I have tried it two ways. I have always

20 indicated this document was coming, as the Court will

21 remember, from the end of last year, the very first

22 hearing I think I mentioned it. So this document has

23 always been in my mind, and I also tried it the other

24 way with the document that summarises the position on a

25 village-by-village basis, and Mr. Scott has made his

Page 804

1 attempt with the letter of November 1998.

2 I understand that my learned friends have

3 some reservations about even receiving this document,

4 let alone responding to it, I may be wrong, but that is

5 as I understand the position. I remain willing to

6 complete the preparation of this document, and as I

7 have said in my motion, it is a document that doesn't

8 have to stop, doesn't have to be frozen at the time of

9 the opening of the case because with comparatively

10 limited but sensible, disciplined measures, the

11 document can be updated from time to time in response

12 to what elements, for example, the Chamber might itself

13 want included on it, and then reprinted and

14 recirculated.

15 JUDGE MAY: Of course, it is not evidence.

16 MR. NICE: It is not evidence.

17 JUDGE MAY: It is not evidence and it is not

18 a substitute for evidence.

19 MR. NICE: Absolutely.

20 JUDGE MAY: It can only be for assistance and

21 guidance, and, of course, there is no reason why the

22 Defence should not write upon it themselves --

23 MR. NICE: Absolutely.

24 JUDGE MAY: -- to add whatever it is they

25 wanted to add and, of course, as far as the Trial

Page 805

1 Chamber is concerned, it would be of assistance merely

2 in following the evidence. Matters which are not

3 proved can simply be crossed out.

4 MR. NICE: Exactly so.

5 JUDGE MAY: Perhaps I may mention what will

6 be a common refrain, which is that we are not a jury.

7 We are experienced in dealing with these matters. If a

8 matter is not proved, we will simply cross it out and

9 forget it. There is no difficulty about that. I would

10 like that to be heard so that it may be understood.

11 MR. NICE: Well, that's that proposal, and I

12 will respond at the end of today's hearing and in the

13 following week to whatever is the Chamber's decision

14 about what would help it.

15 (Trial Chamber deliberates)

16 JUDGE MAY: Mr. Smith, we will hear you, of

17 course, about all these matters. We are not going to

18 rule.

19 (Trial Chamber deliberates)

20 JUDGE MAY: Mr. Nice, we have merely taken a

21 preliminary view about this, and I say it so the

22 Defence can hear, that our preliminary view is to

23 encourage this kind of endeavour because it makes the

24 trial much easier to manage for us. It proves nothing,

25 but it does indicate what the issues are, and in due

Page 806

1 course, we would encourage the Defence to produce a

2 similar document.

3 MR. NICE: Or indeed to make entries on ours.

4 JUDGE MAY: Certainly to comment on your

5 document, that would be very helpful, and if need be,

6 to incorporate their own material into the document so

7 it becomes a common document.

8 I might say this, that in my experience of

9 cases -- not criminal cases but other cases, commercial

10 cases, family cases even, where you have a long history

11 of disputed matters of fact and sometimes complex

12 matters of fact over a marriage or a commercial dispute

13 or something like that, it is extremely helpful to have

14 a chronology as being a particular format, one way in

15 which the material can be approached, and it is very

16 helpful to have both sides to put their account of the

17 matter in the chronology.

18 We will leave that for the moment and hear

19 what the Defence have to say.

20 Is there anything else you want to say

21 about --

22 MR. NICE: No. The only other point

23 connected to the matters I have recently been

24 discussing is that, of course, another way in which we

25 may get agreement is under 73(F), the Defence pre-trial

Page 807

1 statement, and, of course, they can be required there

2 to give a statement admitting facts and law, facts

3 within the power of the Chamber, and I, of course,

4 leave it entirely to you to decide how, if at all, to

5 use that power to establish what is truly in dispute.

6 That concludes what I say in answer to what

7 was the initial question, are we basically in

8 compliance. Subject to the reservations that I have

9 made and the additional witnesses, which list will be

10 served when it is properly printed, yes, we believe we

11 are.

12 JUDGE MAY: And are you ready for trial?

13 MR. NICE: Certainly, yes.

14 JUDGE BENNOUNA: (Interpretation) Mr. Nice, in

15 the pre-trial motion you filed on the 25th of March, in

16 Rule 73 bis, there is also a logic that must be

17 followed. There is a matter, of course, as you said,

18 that treats matters of facts and law, and there is

19 also -- whether the term should be pre-defence

20 conference for the same matters. We need to find

21 whether or not there is a common denominator, but in

22 matters of law, there is no common denominator. There

23 is a framework in which people can meet and where there

24 will be divergent points.

25 What you have proposed as a document as far

Page 808

1 as procedure is concerned, which I see there is also a

2 statement of law as well, I wonder whether or not you

3 are going to present to us on the 25th of March this

4 matter as well, because if you are going to do so, then

5 we need not double or overlap your efforts. Perhaps on

6 the 25th of March you can file a document as complete

7 as possible in which you would describe what occurred,

8 the basis of the Prosecution and all the related

9 events, and then the way in which you intend to analyse

10 those events in order to give us a very clear idea of

11 the prosecution, what happened, and why the accused are

12 personally implicated in those events, and then a

13 response will be submitted. This is provided for by

14 the Rules. And then, at a moment in time, as the

15 Presiding Judge has just stated, since we are supposed

16 to be professionals and knowledgeable in this area, we

17 will then determine on our own what are disputed or not

18 disputed, and then we will try to see whether or not

19 there is an admission by both parties, and then we may

20 address both parties on this issue.

21 Can you please respond to this question:

22 First of all, this brief that we are expecting from

23 you, will it include elements which we already have

24 before us now? In this case, then I would encourage

25 you quite simply to submit as clear a brief as possible

Page 809

1 and as complete as possible, including the tables,

2 including the tables on the events.

3 MR. NICE: There was no misunderstanding by

4 me as to whether the schedule I propose could

5 substitute for the pre-trial brief. It can't. The

6 pre-trial brief, which will deal with matters of fact

7 and law, will be a freestanding document. The

8 chronology will come as an attachment, I suppose, to

9 it, or simply with it. So the Court will have both

10 types of document. Does that help?

11 JUDGE MAY: So the position is that you are

12 in a position to serve with the pre-trial brief any

13 schedules on which you intend to rely -- or, rather, a

14 chronology and a schedule related to the indictment,

15 and I have in mind your documents Annex 3 and 4. They

16 will be served --

17 MR. NICE: They will be served as well.

18 JUDGE MAY: If we ordered that, it may be

19 that we can order a response to it too, if we were to

20 order it.

21 MR. NICE: If you were so to decide, we would

22 have no objection because it is my settled intention,

23 subject to your indicating otherwise, that those

24 documents will be prepared and made available.

25 JUDGE MAY: Yes. Well, it may be convenient

Page 810

1 now to move to the Defence. It is getting on for break

2 time. I have in mind that we have still to consider

3 the various orders which the Prosecution have asked for

4 in their latest motion, but it may be convenient after

5 the break to hear the Defence on what has been

6 discussed so far.

7 I will have distributed a proposed calendar

8 and proposed sitting times. We have drawn up a

9 schedule which is intended to go through till the

10 recess at the beginning of August. Before you see it,

11 I should tell you that we intend sitting most but not

12 all weeks in this trial. There are two matters to be

13 borne in mind: Some of the sitting days will be half

14 days. That is necessitated because I am in another

15 Trial Chamber conducting another trial on the mornings

16 of those particular weeks, so that is why there are

17 half weeks. The other matter is that, of course, this

18 is not the only case which this Trial Chamber has on

19 its list, and accordingly, there will be breaks when

20 other cases will have to be heard. Anybody wanting to

21 make any submissions about the calendar, of course, is

22 free to do so. We have included proposed sitting times

23 which we hope will accommodate counsel and also all

24 those who are involved in the trial, the technical

25 staff, the interpreters, and everybody else. But we

Page 811

1 hope we have managed to accommodate all those

2 interests.

3 I will have that distributed and then we will

4 discuss it in due course.

5 Yes. Twenty minutes.

6 --- Recess taken at 11.33 a.m.

7 --- Upon resuming at 12.01 p.m.

8 JUDGE MAY: Now, the Defence. Mr. Smith? If

9 you would like to get through those matters which you

10 wish to raise with us.

11 MR. SMITH: Yes, Your Honour. I had in mind

12 responding on all of the issues that have been

13 addressed to date --

14 JUDGE MAY: Yes.

15 MR. SMITH: -- not responding at this point

16 on the procedural issues raised in the Prosecutor's

17 latest motion or on the release question, judging those

18 to be for the next portion of the hearing.

19 JUDGE MAY: Right.

20 MR. SMITH: Thank you, Your Honour.

21 Your Honour, I would like to start out

22 distinguishing, as this Court did in its February 26th

23 order, between Rule 66(A)(ii) and the requirement for

24 production of statements -- the discovery obligation,

25 on the one hand, and the 73 bis (B)(iv) obligation for

Page 812

1 the production of a witness list and the other listed

2 matters under 73 bis (B)(iv) -- and note that in Your

3 Honour's order, you've indicated, and I think indicated

4 by starting out this morning to address each

5 separately. I quote from your order that "The

6 obligation to disclose witness statements to the

7 Defence under Rule 66(A)(i) is independent of and does

8 not rely upon finalisation of ..." and then the matters

9 relating to witness lists.

10 On the question of statements, I'm going to

11 pick up several points from the discussion and then

12 move to 73 bis (B)(iv) first and then the discovery

13 issue second.

14 It is true that the defendants have argued

15 ever since we filed our motion to compel, back in July,

16 for more rather than less and sooner rather than

17 later. That is to say, we urged the Prosecutor, in the

18 production of witness statements, to be overinclusive,

19 and we did so with the thought in mind that if done

20 early, when the Defence can cope with the overinclusive

21 approach, it would aid in both the preparation of the

22 Defence and aid the Prosecutor by sequential

23 production, as Your Honours have referred to in your

24 own order of February 26th. And if we were given

25 access to the prior statements in the form of

Page 813

1 transcripts and exhibits from other cases, it would

2 also aid the Defence in attempting to help the Court

3 and the Prosecution structure this very broad and very

4 difficult case that the Prosecution has pled.

5 I might draw Your Honour's attention to the

6 language in our original notice of motion to allow

7 access to non-public materials, where we cited Judge

8 Jorda's desire, articulated as early as the spring,

9 before we were involved in this case, when

10 Mr. Naumovski was just the counsel, for innovative

11 techniques. We indicated that we were prepared to do

12 that, but that without access to the necessary material

13 so that we played with a full deck of cards in

14 assessing the truth of facts and the availability of

15 witnesses and testimony, it would be very difficult for

16 the parties on either side to comply with the request

17 for innovative techniques, but most difficult for the

18 Defence because, of course, the Prosecution, being a

19 unitary prosecutor, has had all along, for over four

20 years, access to all of the materials that they were

21 both producing to bring the case against these

22 defendants, and that they have been using year after

23 year in these existing ongoing proceedings on the Lasva

24 Valley.

25 We indicated at the outset, in a motion for

Page 814

1 access to non-public materials, that the volume of

2 material in this case was very significant, and just as

3 we saw the supporting material at that time, before we

4 got the additional supporting material, or at least

5 some of it, from the amended indictment, much less the

6 material from these other cases that is relevant. In

7 our motion for access in July -- in our reply, rather,

8 to the Prosecutor's motion -- we also argued that in

9 the absence of timely disclosure of materials in

10 discovery, there is little chance that the parties will

11 be able to reach agreement as to these innovations.

12 So I suggest to Your Honours that the

13 Prosecutor comes late to the notion of techniques for

14 structuring trial; that we have been arguing from the

15 outset that the case needs to be structured in a way

16 that allows us to assist the Trial Chamber in how to

17 try the case.

18 I would note that the Prosecutor argues that

19 they do not know the Defence's case at this point and

20 that that leaves them in some difficulty. But as Your

21 Honours are fully aware, it is the Prosecutor that has

22 the burden of proving the case it has chosen to plead

23 beyond a reasonable doubt on every count, and given the

24 number of villages in each count as to each such

25 village. We have protested that method of proceeding,

Page 815

1 but we have been overruled.

2 Nonetheless, it is the Prosecutor's burden to

3 prove his case as he has pled it, and that case does

4 not turn on the Defence's case. If he fails to plead

5 his case and prove it in his case, he will be met by a

6 motion to dismiss at the end of his case, before the

7 Defence has even begun to put on its case. So I

8 suggest to you that the position the Defence is going

9 to take is a red herring on the question of what the

10 Prosecutor has to do. They know perfectly well. They

11 have pled a case, and they must prove it. Now, to the

12 extent that we can assist the Trial Chamber in

13 techniques relating to shortening the trial, we have

14 said, as I indicated right from the outset, that we

15 intend to do this, but, ultimately, it is not fair for

16 the Prosecutor to be allowed to throw its burden of

17 proving the case it has pled back on the defendant.

18 As to -- and I will come back to this in a

19 moment, but just a short aside on the proposed

20 stipulations that have been filed on us by the

21 Prosecution. In both cases, as Your Honours will have

22 seen, these proposed stipulations are taken either

23 verbatim or essentially paraphrased from the proposed

24 statement of facts in the Prosecutor's supporting

25 material.

Page 816

1 The proposed statement of facts is the case

2 pled as an advocate by the Prosecution to persuade the

3 confirming judge that the defendant is guilty. It

4 should come as no surprise to the Prosecution that the

5 Defence can't simply sign up to the Prosecutor's

6 characterisation of the facts. Where there were simple

7 facts, clearly stated, we have agreed, and we are

8 prepared to continue doing that in the future, but when

9 presented with a long series of proposed stipulations

10 that are in effect the Prosecutor's case against our

11 client, and then asked to agree, particularly as to the

12 second set, when it is only given to us several weeks

13 ago -- and as I will come in a moment, we are then

14 inundated with additional material that we should have

15 had long ere this. Seven months ago, nine months ago

16 -- it is no wonder that our initial response is we

17 will agree objective facts where we can, but separating

18 the objective facts from the characterisations in your

19 brief on the facts would take some time.

20 Let me turn then to the question of

21 summaries.

22 JUDGE MAY: Let me interrupt to say this:

23 That clearly we appreciate, as a Trial Chamber, that

24 there has been a volume of material which has been

25 disclosed that you are having to cope with, and that

Page 817

1 any orders we make will be made with that fact in

2 mind. Clearly we would not expect you to agree to

3 anything which is in the nature of an interpretation of

4 the facts, or a Prosecution case, or the way that they

5 invite the Chamber to look at the facts, but what we

6 would encourage you to do is to agree the facts, where

7 that is possible, not the interpretation. But clearly

8 you must have time to do that.

9 MR. SMITH: Indeed, Your Honour, thank you.

10 We take that on board, and I might add that we have at

11 no time said that we would be unwilling or unable to

12 agree to the location of a particular village or what

13 the 1991 census may say, but I will come back to that,

14 and we will be as helpful as we can, as quickly as we

15 can.

16 Let me turn for a moment to the summaries,

17 and there, I think, it will be of great help both to

18 the Trial Chamber and the Defence to have summaries,

19 and the Defence fully intends to produce such summaries

20 when its part of the case is ready to be presented.

21 I might suggest, in addition to the

22 agreement, for the progress of the trial as a whole, of

23 two weeks' standing notice of the specific witnesses

24 and the order within the following two weeks, that

25 particularly given the flood of material at this time,

Page 818

1 the Prosecution might agree to several things. First,

2 an initial determination of the witnesses that it plans

3 to call, say, in the first six weeks, so that the Trial

4 Chamber has some sense of the initial flow of the

5 schedule; and secondly -- and this is a point related

6 to the distinction between a witness statement on the

7 one hand and a witness list on the other.

8 The witness list requirement of 17 bis

9 (B)(iv) requires that the statements be of the

10 witnesses the Prosecution intends to call. The Defence

11 at this point is looking for a needle in a haystack in

12 terms of the witnesses the Prosecution will really

13 call, an obligation to give us a sense of the first six

14 weeks' order, and which witnesses, would be very

15 helpful.

16 There are several other things that would be

17 helpful. The Prosecution has proposed for every count

18 to come up with a list of the key witnesses, and I

19 think that is a useful document. I might propose that

20 there the Prosecution simply flag the core witnesses so

21 that both the Trial Chamber and the Defence know where

22 to start and which witnesses are likely not to be

23 called because they are only supplemental witnesses.

24 Further, I think it would serve the Trial

25 Chamber quite well, and be of help to the Defence, if

Page 819

1 the Prosecution did not give us a specific batting

2 order for the entire trial, but rather were prepared to

3 say how they're going about the proof. Are they going

4 to start with experts and general background? Will

5 they then start in Vitez, and march down the valley to

6 Ahmici, and then Kaonik, and then Busovaca, and then

7 Kiseljak? Will they start at the other end and come

8 the other way back up? I'm certain that they must --

9 while they don't know it in detail at this time, they

10 certainly have taken decisions about the basic way in

11 which the case will be presented, and that could, I

12 think, be very helpful in giving the Trial Chamber a

13 sense of the overall structure of the way the trial

14 will proceed, and will also be very helpful to the

15 Defence in giving us an overall sense of where things

16 start and where things end.

17 JUDGE MAY: If you're going to move from

18 there, Mr. Smith, it may be helpful to have a reaction

19 from the Prosecution on those suggestions, which seem

20 to me, to be helpful.

21 MR. NICE: I have no problems with any of

22 those suggestions. We agreed yesterday that the

23 general rule for notification of witnesses -- which was

24 what my learned friend asked for, and I was only too

25 happy to agree -- should be, in general, two weeks, and

Page 820

1 that on any Friday, notification is given for the

2 witnesses on the following Monday week, so that the

3 minimum time that any one has -- and this would be

4 mutual to both sides, the same for the Defence as the

5 Prosecution -- the minimum that people have is one week

6 and two weekends notification of witnesses to be

7 called. That's the way it operates.

8 JUDGE MAY: We will incorporate that in the

9 order.

10 MR. NICE: Thank you. As to the first six

11 weeks, subject to any problems about availability of

12 particular witnesses, I hadn't been asked about that

13 before, but if I had been, I would have said yes to

14 that. As to a general plan of how I will present the

15 evidence, I would have given that in any event, and I'm

16 only too happy to undertake to do so. Again, it has to

17 be subject to the necessary interpolation of witnesses

18 who aren't available at other times, and so on and so

19 forth, but in general, I'm only too happy to oblige.

20 JUDGE MAY: The other matter was flagging the

21 core witnesses in each case.

22 MR. NICE: Yes. Well, I'd offered that at an

23 earlier stage, as a solution to another problem, but I

24 don't see any particular objection to flagging core

25 witnesses for everyone's assistance. It seems quite a

Page 821

1 good idea.

2 MR. SMITH: Thank you, Your Honour, and like

3 my colleagues, I think that will aid in the

4 presentation of the case.

5 I would turn now to discovery, and I have

6 dealt with Rule 73 bis (B)(iv) to the extent that I am

7 going to at this point. It is the Defence's position,

8 Your Honour, that the Prosecutor is not in fact in

9 compliance with Rule 66 and its discovery requirements,

10 and in fact it is in very substantial non-compliance.

11 Let me start with the supporting material.

12 We have just been served, on the 5th of March, with two

13 new sets of materials said to be part of the supporting

14 materials, and as Your Honours will recall, the

15 supporting materials were to have been served by

16 November 13th of 1998. It appears that -- well, one of

17 these packages appears to have 54 documents; another 24

18 documents. We are still trying to process them, and it

19 is not clear to us whether we are being served now with

20 B/C/S translations of things we already have in English

21 or whether these are new materials. There are a large

22 number of witness statements in these materials, but

23 they are specifically labelled, in the receipt that

24 we're asked to sign, as part of the supporting

25 materials. I would submit that they are late.

Page 822

1 I would further ask my learned colleague

2 whether they know the status of the translation into

3 B/C/S of the supporting materials that we have been

4 furnished. Have we now got everything that has been

5 translated? Is there, to your knowledge, still

6 material left from last November that's to be

7 translated?

8 I say that, Your Honours, with the following

9 thought in mind: Translation into B/C/S is by no means

10 a technicality. It goes to the absolute heart of the

11 defendant's ability to defend himself. The volume of

12 materials in this case (amplification cutoff) does not

13 speak or read English with any facility. He needs to

14 be able to read the materials and to aid in the

15 preparation of his defence. The B/C/S versions are

16 absolutely essential in addition to being clearly

17 called for by Rule 66(A), and clearly called for since

18 last July.

19 I don't know whether -- if you don't know the

20 status, that's fine; we can chat about it later. But

21 in short, we're not sure why we're still receiving

22 supporting material at this late date.

23 JUDGE MAY: Is there any other point on the

24 discovery? And I call on Mr. Nice to hear of them.

25 MR. SMITH: There is, Your Honour, but not on

Page 823

1 the supporting material.

2 JUDGE MAY: Perhaps if you went on, and --

3 MR. SMITH: That's fine.

4 JUDGE MAY: -- we'll deal with all the

5 discovery points together.

6 MR. SMITH: That's fine.

7 Let me turn, then, to the question of witness

8 statements under 66(A)(ii). Here I think it is

9 important to simply recall the language in Your

10 Honour's February 26 order about the purpose and

11 importance of the witness-statement requirement in

12 Rule 66(A)(ii). I quote: "The obligation to provide

13 witness statements pursuant to Rule 66(A)(ii) is

14 intended to assist the Defence in the understanding of

15 the case against the accused in accordance with his

16 rights under Article 21 of the Statute, and should thus

17 be provided to the Defence as far in advance of the

18 trial as is possible, even if this means that

19 statements are disclosed sequentially, and that

20 statements are disclosed of witnesses who eventually

21 are not called to testify in the matter."

22 Indeed, Your Honour, we have argued, as you

23 will know, that we have a right under Rule 6(C) and

24 under the provisions of Rule 66, in effect at the time

25 the indictment was issued, and the case became pending,

Page 824

1 to a service of all of the witness statements as soon

2 as practicable, notwithstanding the fact that the rule

3 was subsequently changed to say "at least not later

4 than 60 days before trial," and then subsequently, "as

5 the Court may direct."

6 Now, I need to give Your Honours a sense of

7 the position that the Defence has just been put in by

8 the Prosecution. We have received a list as of March

9 5th and documents in boxes in our offices this week of

10 807 documents. Of those, roughly 240 are by the

11 Prosecutor's own count previously disclosed. That

12 means that we are now just within 30 days of trial,

13 being given, under Rule 66(A)(ii), 570, give or take a

14 few, brand new documents. In short, the Prosecution

15 has just given us over twice as many new documents as

16 the list they have previously given us under Rule 66.

17 Secondly, if you look at the question of how

18 many are translated into which languages -- a point, as

19 I just indicated, that is absolutely fundamental to the

20 adequate preparation of the Defence -- 267 of the

21 English documents have not been translated into B/C/S.

22 I must say it seems to me -- I will be delighted if the

23 translation service can turn 267 documents around in

24 one month, going from English to B/C/S, but I suspect

25 that is a tall order.

Page 825

1 Secondly, there are, by our count, roughly 77

2 B/C/S documents not yet translated into English. Even

3 turning those around in a fortnight may prove

4 difficult.

5 Finally, there are 32 miscellaneous documents

6 that are neither in the language -- one of the official

7 languages of the Tribunal nor in B/C/S. Those have got

8 to be translated.

9 In short, there are more yet to be translated

10 than have been listed by the Prosecution -- the total

11 being 376, plus or minus -- more yet to be translated

12 than the Prosecution has indicated in this document

13 were already served on the Defence, which are 240, plus

14 or minus.

15 Let me now look at these documents from the

16 point of view of the number of witnesses involved. The

17 original document given to us last Friday listed 334

18 total witnesses the Prosecutor intends to call, with

19 the caveat, of course, that that's not really what he

20 intends to call, but that's overinclusive. Of those,

21 54 witnesses are presented with no statements at this

22 stage. 141, by our count, plus or minus, are new

23 witnesses we were not aware of previously. 139, by our

24 count, give or take some, and with redactions and

25 pseudonyms it's difficult to be very precise, are

Page 826

1 previously disclosed witnesses.

2 Now, Your Honours, I think, have fairly

3 assessed the implications of the magnitude of this many

4 witnesses for the trial as a whole, as you will know,

5 in the Blaskic case, the Prosecutor called 102

6 witnesses, and the Defence has, I think, called at

7 least 40 by now, and that case has gone on essentially

8 two years. If you multiply out the number of

9 witnesses, even if, let's say, the Prosecution drops 50

10 witnesses and you start with 300, and even if you

11 assume one witness a day, which, given the track record

12 in other cases, is extremely generous, you are still

13 looking at 300 trial days, or roughly 60 trial weeks,

14 and that's the Prosecution case alone.

15 JUDGE MAY: Mr. Smith, let me interrupt you

16 on that. I've already made plain that the Trial

17 Chamber will be proactive in controlling the number of

18 witnesses. These are matters which we have in the

19 forefront of our consideration. We also bear in mind

20 that this case is now an old case, an old case, because

21 the indictment was issued over three years ago; the two

22 accused made their initial appearance as long ago as

23 October 1997. To see this amount of material appearing

24 at the last minute is a matter for grave concern, but

25 perhaps you would like to tell us what you want us to

Page 827

1 do about it.

2 MR. SMITH: Yes, Your Honour. I will come to

3 that, and might I simply note, in doing that, the last

4 statistic that you may want to consider: In counting

5 the documents, plus or minus, provided by this list

6 with 334 -- and which they've now supplemented by

7 another set of witnesses -- we find 22 statements dated

8 in 1999, from which none have been translated yet.

9 These are the most recent and one might have expected

10 that they perhaps wouldn't be translated yet. 73 from

11 1998, only 3 of which have been translated. Everything

12 else has been in the Prosecutor's possession from a

13 date before 1998. I submit that the bulk of the

14 material could and should have been disclosed either

15 back in October of '97 or in October of '98,

16 sequentially and overinclusive as we requested. But to

17 do it now, in an overinclusive way, dramatically

18 prejudices the Defence.

19 Now, in terms of what we request Your Honours

20 to do: The first request is -- and I think it's

21 important to focus on the Rules. It is our position

22 that there are violations here of the Tribunal's Rules

23 and there are violations of this Trial Chamber's

24 orders. Rule 37(A) of the Tribunal's Rules imposes on

25 the Prosecutor a duty to obey the Rules of the

Page 828

1 Tribunal. Rule 5(A) of the Rules, which deals with

2 non-compliance with the Rules, states that "Where an

3 objection on the ground of non-compliance ... is raised

4 by a party at the earliest opportunity," and I submit

5 to you that as to the material just provided, this is

6 the earliest opportunity, and indeed we have been

7 trying to provide against this eventuality since we

8 originally filed our motions for access and motions to

9 compel -- but when an objection is raised "... at the

10 earliest opportunity, the Trial Chamber shall grant

11 relief if it finds that the alleged non-compliance is

12 proved and that it has caused material prejudice to

13 that party."

14 You will note the distinction between

15 Rule 5(A) and Rule 5(B). Rule 5(B) says that "Where

16 such an objection is raised otherwise than at the

17 earliest opportunity, the Trial Chamber may, in its

18 discretion, grant relief."

19 The relief we request, Your Honour, is as

20 follows: First, we believe that the Trial Chamber

21 should exclude all witnesses as to whom witness

22 statements were served on or about March 5th up to the

23 present, due first to a violation of the "as soon as

24 practicable" requirements of Rule 66(A)(ii), and due

25 secondly, to an abuse of the Trial Chamber's own order

Page 829

1 dated February 26th which gave the Prosecutor until

2 March the 5th to finish up with his witness statements,

3 but I would argue did not contemplate -- we certainly

4 did not contemplate and were quite surprised at the

5 extremely large number that have been served at the

6 last minute under that allowance of the order, and

7 which could have been served much earlier.

8 JUDGE MAY: Let me interrupt you. I seem to

9 recollect that we gave the Prosecutor an extension of

10 time, so effectively, we ruled on that.

11 MR. SMITH: Indeed. And I should -- you have

12 given them an extension until today, and I should have

13 phrased it "the March 5 deadline as extended until

14 today."

15 Secondly, we believe that the Trial Chamber,

16 in order to ensure a fair trial for the Defence --

17 that's the basis of the first requested relief --

18 should exclude all Prosecution witnesses on their list

19 of 334 witnesses as to whom witness statements have yet

20 to exist as of today and have yet to be served as of

21 today either because they have not been properly

22 translated -- as Your Honours will know, Rule 66

23 requires that they be served in Serbo-Croatian and I

24 believe that it is Rule 3 that requires them to be

25 served in a language of the Tribunal, so whether it is

Page 830

1 translating into English or translating into

2 Serbo-Croatian, I believe that there is a violation of

3 the Rules; and indeed, it seems to me, Your Honours, it

4 can be argued that the transcripts of both the public

5 hearings and the non-public hearings, which have been

6 ruled by the Tribunal to be witness statements under

7 Rule 66(A)(ii), are also owed to the defendant in his

8 own language.

9 Third, we would request that all of the

10 material that should have been served be served

11 forthwith, particularly -- I point Your Honour to the

12 status of the materials from other Lasva Valley cases.

13 We have now been given the public transcripts up

14 through December from the Lasva Valley cases but only

15 as of this week. On two other occasions we were given

16 a disk, over the last several months, by the registrar,

17 and then told to send the disk back because, for one

18 reason or another, it was not issued in an appropriate

19 fashion, so that we have only received this week, to

20 begin work on the publicly available material, that

21 Your Honours issued a suggestion to the registrar to

22 attempt to expedite, and I have no quarrel with the

23 registrar but I simply point out that we are just now

24 obtaining access to even the public material.

25 JUDGE MAY: What about the private material?

Page 831

1 MR. SMITH: On the private material, Your

2 Honour, we have received, for the Blaskic and

3 Aleksovski cases, the non-public material that

4 represents the witnesses that the Prosecutor says they

5 intend to call, and that is what the orders there

6 provide. We have not, to my knowledge, however,

7 received the 26 witness materials from the Kupreskic

8 case or the three or four -- I have forgotten exactly

9 which -- from the Furundzija case, and there I think

10 the order does not provide that the ones be provided

11 turn on whether the Prosecutor intends to call the

12 witnesses. We would urge that those be provided

13 forthwith.

14 JUDGE MAY: Let me make an inquiry about this

15 because this matter has been in hand for quite some

16 time.

17 (Off-the-record discussion with registrar)

18 JUDGE MAY: Mr. Smith, it's not a matter we

19 can go into now, but I am told that, in fact,

20 everything has been served on you in a CD-ROM. Now,

21 perhaps you can have a word with the registrar

22 afterwards and then clear up the misunderstandings.

23 MR. SMITH: I'll do that. Perhaps the

24 non-public material from those two cases are on the

25 same CD-ROM as the public material that we had to send

Page 832

1 back and now we have as of this Monday. We did not

2 inquire as to why the CD-ROM had to be sent back, we

3 simply sent it back.

4 Your Honours, the next point of relief we

5 request is that given the difficult position the

6 Defence has been put in by these materials being served

7 at this point, we believe that there are now clear

8 exceptional circumstances in terms of the preparation

9 of the Defence case which require the release of the

10 defendant pre-trial so that he may participate in the

11 speeded-up preparation of the case, coping with these

12 materials, many of which at this point he can't still

13 even read, in order to meet a trial date of 12 April.

14 We are firm that the trial should go forward

15 on 12 April. It must do so after these many months of

16 detention in order to guarantee the defendant as

17 expeditious a trial as is now feasible given this

18 present lamentable state of affairs, but, in addition,

19 the witness exclusions we have urged must also be

20 granted in order to assure that that trial for the

21 Defence is fair, and the defendant should be released

22 so that he may work with counsel in trying to cope with

23 these matters and have this trial start on the 12th of

24 April. We are prepared to do that. We intend to move

25 forward notwithstanding the difficult position we have

Page 833

1 been put in. But the relief we request is necessary

2 both to ensure that the trial is expeditious and to

3 ensure that the trial is fair and, in the latter point,

4 that the defendant is able to work with the Defence now

5 and through the case in a way which is very difficult

6 and slow when he remains in detention.

7 Now, we will come back to the pre-trial

8 release matter later, but I would be less than candid

9 if I did not indicate that. We believe these two

10 issues are intimately related, and it is for that

11 reason that I suggested to Your Honours that we should

12 deal first with the question of the status of discovery

13 and then come on to the question of pre-trial

14 detention.

15 Let me turn now to the various proposals with

16 regard to stipulations and methods of organising the

17 trial that the Prosecution has put forward.

18 The first thing I might say is that what the

19 Trial Chamber has termed these background matters of

20 the underlying events at the various villages that the

21 Prosecution has alleged are, in fact, the predicate

22 offences on which the entire prosecution depends.

23 JUDGE MAY: Let us try and get down to the

24 realities of this trial. Is it the Defence case to

25 contest every single attack on every single village or

Page 834

1 are we going to be in a position to say, "Well, this

2 attack occurred, but the interpretation of it and who

3 was responsible, that is in dispute"? But so that we

4 can understand the parameters of the case, is the

5 Defence going to argue that the attacks didn't occur?

6 Is it in a position to argue that some of them did not

7 occur? Of course it is part -- I accept that -- of

8 course it is part of the Prosecution case to prove that

9 the crimes were committed. I made that plain at the

10 outset. But there are two aspects of the case: one is

11 whether the crimes were committed; secondly, whether

12 the accused were implicated in them if they were

13 committed.

14 It would be helpful to us, I think, to know,

15 if you feel in a position to indicate it, of course,

16 whether it is going to be argued that none of these

17 crimes were committed or whether some were committed,

18 some weren't.

19 Do you follow me, what I refer to as "the

20 background"?

21 MR. SMITH: Yes, Your Honour. Let me draw a

22 distinction, if I may, which may help?

23 If the question is, "Was there fighting in a

24 certain village on a certain date with casualties?" it

25 is quite possible that the Defence can agree, in many

Page 835

1 cases, that there was. Once one moves to the question

2 whether there was an attack and who it was by, one is

3 getting into facts that go to the question whether

4 there was a crime.

5 Further, in every situation, there must be an

6 investigation and a determination as to whether the --

7 first, as I said, whether there was an attack -- for

8 example, just to give Your Honours some context. As I

9 understand it, and I have not studied the Blaskic case

10 in this matter carefully yet, but as I understand it,

11 there are a series of orders relating to the week in

12 April in which there was fighting up and down the

13 valley in which General Blaskic issued defensive

14 orders. Different situations may have occurred at

15 different towns. Those troops, as I understood in

16 those written orders, were instructed to return fire if

17 fired upon. The question, whether there was an attack

18 then at any particular village, may be quite

19 difficult. And the question at Ahmici, which has been

20 very carefully studied, may be quite different than the

21 situation at any number of the other villages as to

22 which there has been much less testimony.

23 From the point of view of the Defence,

24 however, we cannot afford, if we do not believe that

25 there is an attack that constitutes a crime under

Page 836

1 international law at a single village, we cannot afford

2 to agree to it because that single event could be the

3 predicate which is linked with, let's say, some

4 evidence, which we do not believe exists, of the

5 involvement of our client, to result in his conviction.

6 JUDGE MAY: If there are matters which can be

7 agreed, let us agree those matters: the geography, I

8 imagine, really cannot be in dispute; that there was

9 fighting, for instance, if that is not in dispute; and

10 then perhaps it might be helpful if we could go a bit

11 further, who was responsible for the fighting, or

12 whatever the particular issue is; and I think what

13 would assist us is, as it were, a reaction to the

14 Prosecutor's case, the detailed case, which tells us

15 what it is essentially that is in issue about the

16 particular fact, the particular village, so that we may

17 grasp what it is we are going to have to decide in each

18 case, and the sooner we grasp that, of course, the

19 better it is.

20 MR. SMITH: Your Honour, I absolutely agree,

21 and it is for this reason that we were pressing early

22 to have the information because this takes time, and

23 the Defence has not pled this case. It is the

24 Prosecution that has pled such a massive case with so

25 many counts and so many villages and so many elements

Page 837

1 that they must prove as to every count as to every

2 village, and (a) it takes time, (b) it takes a full

3 deck of cards, which the Prosecutor has and has had.

4 We now have some of the cards, but there are still many

5 witnesses, for example, in Aleksovski or Blaskic, who

6 may have testified about matters that we have had no

7 access to, and even as to the ones we now have access

8 to, we've got 30 days before trial, a great deal to do

9 to prepare for the Prosecution case, as soon as it

10 becomes apparent, and very little time given the

11 position that the Prosecution has put the Defence in.

12 Further, I think, while the Defence is

13 prepared to stipulate as many facts as it can that are

14 objective -- for example, we can stipulate -- there is

15 a difference between stipulating the admissibility of a

16 document or a statement, its weight, and its truth, and

17 we can distinguish carefully in this regard.

18 Nonetheless, we would be at a great disadvantage if we

19 were in a position where we were pressured to, in

20 effect, make our case piecemeal by concession as the

21 Prosecution puts its witnesses on, before we've heard

22 all of the witnesses, and before our case has begun to

23 be put on. So we are not -- on the objective matters.

24 JUDGE MAY: I take the point entirely that

25 you cannot be expected to be pressured to make

Page 838

1 admissions and the like when you are not entirely

2 certain of what the Prosecution case is. That I

3 understand. But once the Prosecution have made their

4 case clear, at least as it is -- it may be on paper, as

5 they intend to prove it -- of course it would be

6 subject to witnesses coming up to proof and that sort

7 of thing -- I think at that time we would be expecting

8 some reaction from you.

9 The position in the Tribunal is not the same

10 as in some common law jurisdictions where the Defence

11 play no part at all, indeed are not required to play

12 any part in the trial, and it is left to the

13 Prosecution to prove the case and that's it. There is

14 no obligation on the Defence at all. Because of the

15 complexity of these proceedings and the size of them,

16 there is an obligation on the Defence to play its part

17 in at least identifying and clarifying the issues, and

18 in due course, we shall be calling upon you, under the

19 Rules, to make that plain, and a bit more than a short

20 document saying everything in dispute. We shall expect

21 rather more detail than that.

22 As to the amount of time that you have to

23 present that document, of course we will hear argument

24 about it, I mean, on the basis that you have been given

25 the material late, and if you want more time, obviously

Page 839

1 we will have to consider that.

2 MR. SMITH: Your Honour, may I suggest that

3 there is a provision in the Rules, in Rule 73 ter,

4 providing for the Defence, once it has seen, as you

5 say, the Prosecution's case, to then present, before it

6 begins its case and in light of the Prosecution's case,

7 its views on admissions by the parties and matters not

8 in dispute, and I would urge Your Honour that that is

9 the appropriate time for that sort of a document to be

10 presented by the Defence, subject, of course, to

11 working toward it, as we go through the Prosecution's

12 case, informally with the Prosecution.

13 JUDGE MAY: The time you are suggesting is

14 the end of the Prosecution case; is that right?

15 MR. SMITH: Could I --

16 JUDGE MAY: The time you are suggesting is

17 the end of the Prosecution case.

18 MR. SMITH: That's what Rule 73 ter calls

19 for, yes, Your Honour.

20 JUDGE MAY: Well, that is the pre-Defence

21 conference, but the Rule that we have in mind is 73 bis

22 (F), and that is the Rule which says that you will be

23 called upon -- or ordered, rather, in this case, to

24 file the statement of admitted facts and a pre-trial

25 brief, and I rather think we have already ordered a

Page 840

1 pre-trial brief in this case.

2 MR. SMITH: You have indeed ordered a

3 pre-trial brief. Your Honour is quite right. I would

4 suggest that we will be able to be somewhat more

5 forthcoming in the 75 ter submission than we will in

6 the 75 bis submission which will be in, I guess, the

7 6th of April, when we will still be trying to

8 assimilate this very large volume of materials,

9 preparing for trial, and also having to try to deal

10 with our learned colleagues on the questions of

11 admissions and stipulations. We will do the best we

12 can, and where we can stipulate that a document says X,

13 there is no reason not to do that. We have already

14 agreed, where there are certain objective historical

15 facts that we were able to extract from the briefs, in

16 effect, the statement of facts that the Prosecutor

17 presented to us from their supporting materials, we

18 have agreed to those, and we have not refused to agree

19 to other objective facts, like village locations or the

20 census. We have simply said generally that everything

21 else we were presented with at that point involved

22 characterisations or misstatements or other things and

23 we could not agree wholesale.

24 Let me conclude by turning to the suggestion

25 for the preparation of this Annex 4 that the Prosecutor

Page 841

1 has proposed. Route maps are very helpful in terms of

2 a chronology, and the Defence, in fact, had in mind

3 itself providing such a road map in due course. I

4 think as long as it is clear that the Defence is not

5 pressured to agreeing facts and that what is written

6 down is not evidence, we may comment on it by simply

7 saying we contest a particular statement for whatever

8 reason, or we do not. We are prepared, as I say, to

9 prepare our own chronology, and techniques like that

10 may be useful to the Trial Chamber.

11 It does, however, I suggest, as I indicated

12 earlier, put the Defence in somewhat of a difficult

13 position if the facts placed on a chronology contain

14 characterisations. I guess we will simply deal with

15 that by producing our own chronology that either has no

16 characterisations or has the characterisations that we

17 believe are appropriate. But we are extremely

18 concerned about ending up trying our case by agreement

19 on statements which, in their first appearance to us,

20 have been taken straight out of the Prosecutor's brief

21 for conviction, but we will do the best we can to

22 cooperate with the Court and to make the case move

23 forward in a way that is as meaningful and

24 understandable to the Trial Chamber as we can.

25 JUDGE MAY: What we would have in mind, of

Page 842

1 course, is that these road maps, chronologies, whatever

2 they are called, would be in the nature of rolling

3 documents. They would not be formulated at the

4 beginning of the trial, necessarily, they would simply

5 be the first draft. As the trial goes on, bits can be

6 filled in or thrown out according to the evidence as

7 events unfold. But what is helpful from the Trial

8 Chamber's point of view is to have the road map at

9 all. What we make of it, of course, is entirely for us

10 to say.

11 MR. SMITH: Indeed, Your Honour, and the

12 parties in a case like this would both have developed

13 their own chronology in any case because at the end of

14 the case we have each got to produce proposed findings

15 of fact and conclusions of law, and they will be built

16 from our own characterisations and view of the facts.

17 Having a set of those materials helpfully provided by

18 the Prosecutor at the beginning, with the Defence asked

19 to comment on it, gives the Defence some concern, but I

20 think we'll deal with it by simply providing our

21 rolling chronology as we go forward.

22 JUDGE MAY: It is a matter for you, of

23 course, how you approach it. The only thing that I

24 have in mind particularly is, at the end of the case,

25 where there is going to be a mass of evidence, it may

Page 843

1 be helpful to have, as it were, a master document which

2 combines both, and if you could have that in mind when

3 you produce your response, that would help.

4 MR. SMITH: To the extent that the facts are

5 objective and we can both agree on them, their

6 articulation, and place them before Your Honours not as

7 evidence, we'll attempt to do everything we can to

8 assist.

9 JUDGE MAY: But even where there are matters

10 in dispute, it may be helpful to have it on the same

11 document so that we have the Prosecution, as it were,

12 on one side -- I am thinking aloud, of course --

13 Prosecution account of an event in a particular village

14 on one side, Defence on the other. It may assist

15 everybody to have some sort of document like that.

16 MR. SMITH: In effect, to take the two

17 proposed findings, chronologies, and put them side by

18 side. That may well be feasible even if both of us

19 write them separately.

20 JUDGE MAY: Yes, of course.

21 MR. SMITH: They could match up

22 chronologically, and the Court could see without having

23 to flip from one document to the other. As we've said

24 from the beginning of the case, this is a very large

25 case and we were interested in trying to establish the

Page 844

1 framework right from the outset to allow the kind of

2 innovative techniques to be used that Judge Jorda had

3 in mind.

4 JUDGE MAY: Could I just clear one matter?

5 From what you've said, you are not seeking to change

6 the date for your pre-trial brief beyond the 6th of

7 April but what you are saying is that anything you say

8 at this stage is on the understanding that you are

9 still getting material? Do I state your position

10 correctly or not?

11 MR. SMITH: Yes, Your Honour, with one

12 qualification: We are fully prepared to brief the law

13 in the pre-trial brief on the 6th of April. I would

14 urge Your Honour that it would make a great deal more

15 sense to, in light of the position we've been put in by

16 the Prosecution, to postpone the factual portion of our

17 pre-trial brief where we must characterise the facts

18 and what we think of them until just before we begin

19 the Defence case. That way we would give you the

20 proposed admissions, things we can agree upon, under

21 Rule 73 bis (F), we would give you the legal arguments

22 so that the Prosecution can see the legal framework

23 within which we put the case, but because of the

24 position we've been put in by the Prosecution, our

25 factual analysis of the case would be put to the Trial

Page 845

1 Chamber in a document just before we present our case.

2 JUDGE MAY: The difficulty about that

3 approach, of course, is that in the presentation of the

4 Prosecution case, one is not going to know the matters

5 which are in dispute and which aren't. It is really

6 more helpful if, at an early stage, we can have the

7 matters which are not disputed, and there must be a

8 matter which isn't disputed which doesn't require full

9 disclosure. The earlier we know that, the better, and

10 I anticipate that we will require at least some

11 assistance from the Defence in that regard.

12 MR. SMITH: Indeed, Your Honour. There are

13 two parts of Rule 73 bis (F), and what I had in mind

14 was providing you with the first part that you

15 indicated a few moments ago you clearly would insist

16 upon, and that is a statement of admitted facts and

17 law. We would provide you with that as well as we can

18 at this stage, but as to the pre-trial brief addressing

19 the factual and legal issues, we would only provide a

20 pre-trial brief addressing the legal issues and leave a

21 brief addressing the factual issues, having identified

22 the ones that are in dispute for you, in the statement

23 of admitted facts and law that 73 bis (F) clearly calls

24 for. If I failed to articulate it in a way that was

25 helpful, I apologise, but that is what I, in fact, was

Page 846

1 proposing.

2 JUDGE BENNOUNA: (Interpretation) Mr. Smith,

3 do you think you can talk about the -- let me begin

4 again with my question. I don't believe you had your

5 headphones on.

6 Mr. Smith, do you find that in your pre-trial

7 brief you will be able to deal with issues of law

8 without dealing with issues of fact because it seems

9 this will be a very difficult operation to carry out,

10 to separate the statements of fact and law, unless you

11 are doing something very abstract. What do you intend

12 to do?

13 MR. SMITH: What I would propose, Your

14 Honour, is to address the questions of law, not address

15 the application of the law to the facts, because that

16 requires also having the facts, but I anticipate that,

17 in due course -- for example, in our proposed findings

18 at the end of the case, we would address the law, we

19 would address the facts, and we would address the

20 application of the law to the facts, and it is those

21 last two matters that require a statement of the facts.

22 The first matter is just a statement of the

23 applicable law but, for example, we would address the

24 law of military necessity. One of the critical issues

25 at every village is, was it defended? Was it a

Page 847

1 strategic location? If there was an attack, was it

2 militarily justified under the rule of

3 proportionality? We would address these issues and lay

4 out the ground rules on which we will make our

5 arguments. But, of course, having just gotten all of

6 this material, we're in a very difficult position to

7 say whether at any of these many villages and these

8 many offences and many times we believe there was or

9 was not a militarily justified attack if there was an

10 attack. That's the position we find ourselves.

11 JUDGE BENNOUNA: (Interpretation) By

12 addressing the first part of Rule 73 bis (F), as you

13 have proposed, that is, the list of the points of

14 admitted facts and law, you were going to do this in

15 relation to the brief that will be presented by the

16 Prosecution, that is to say, you were going to indicate

17 what facts and law you are reacting to in reference to

18 the brief filed by the Prosecution.

19 MR. SMITH: Yes, Your Honour, that is what I

20 had in mind. And when there are facts, for example,

21 facts asserted on the basis of documents, and we can

22 say the document says X, we would say, "Yes, we agree

23 the document says X." Constituent documents, for

24 example, relating to the HZ-HB or the HR-HB. The

25 characterisation of what they mean and what the legal

Page 848

1 effect of those statements is a completely different

2 question on which we will argue because they are

3 likely, indeed they will be hotly contested, and I

4 might move to my final point then which is --

5 JUDGE MAY: Before you do, I think there is a

6 misconception about the Defence pre-trial brief. What

7 is required, of course, is the statement of admitted

8 facts and law. That is one side. But what is required

9 on the factual issues is this: It's a reaction to the

10 Defence but it is also -- a reaction, I should say, to

11 the pre-trial brief by the Prosecution, but it is also

12 some indication of the Defence addressing the factual

13 issues. We don't here follow what is sometimes called

14 in common law systems the game theory. "Let's wait and

15 see what the Prosecution can prove and then we'll

16 decide what we can admit" and that sort of thing. We

17 require, from an early stage, cards on the table, and

18 that means this: You must have instructions on, say --

19 or you will have instructions on the pre-trial brief,

20 and it is those issues on the brief which are argued

21 which we expect a reaction to. Of course, at the end,

22 what the Defence is entitled to do is to wait and see

23 what the evidence is before admitting anything. Of

24 course, that's inevitably the case. But what we want

25 to know is what your case is about the issues. You

Page 849

1 indicate that there may be issues as to whether

2 villages were strategic targets, that sort of thing.

3 We would like to know what you say about that, and as

4 early as possible, which of the villages, for instance,

5 were strategic targets, which weren't. That, in a

6 sense, doesn't depend upon what the Prosecution say, it

7 depends upon what your case is about it.

8 No doubt we can argue these matters more in

9 due course, but we do expect a cards-on-the-table

10 approach from the Defence, of course, as well as the

11 Prosecution, but we have in mind, of course, that

12 you've got a vast amount of material to assimilate, and

13 we will have to balance those two factors.

14 MR. SMITH: It is very helpful to the Defence

15 to get a better sense of what the Trial Chamber expects

16 in that brief. I think that we can file a brief on the

17 6th of April that addresses even the factual matters in

18 a general way. To file a brief, if the Trial Chamber

19 expects us to go village by village and respond when we

20 may not have even had time to read all the material

21 about some of the villages by the 6th of April, as now

22 presented, we would either have to be extremely

23 conservative, which would not be very helpful, or it

24 would take us a good deal longer to provide more

25 detail.

Page 850

1 Given that this, I suppose, is likely to be

2 the last time we're together -- unless Your Honours

3 intend to schedule another conference between now and

4 the 6th of April -- it may be important that we be

5 clear and you give us instructions as to whether what

6 you would like is something on the 6th of April that's

7 very general, or if you want something more detailed,

8 then perhaps I ought to ask for more time, at least for

9 the factual portion, and indeed it would be better just

10 to postpone the entire submission until we've had a

11 chance to assimilate better the materials and to set a

12 date for that right now that Your Honours feel is fair

13 in light of this burden that I have indicated on us.

14 That way, all the expectations will be clear and we'll

15 simply do whichever Your Honours prefer.

16 JUDGE MAY: We will consider that.

17 MR. SMITH: Thank you, Your Honour.

18 Let me raise one other substantive issue

19 related to the matters we have discussed, and that is

20 the use of prior testimony.

21 We have urged the Prosecution from the outset

22 that it is difficult, very difficult, for a defendant

23 to stipulate particularly as to the truth of a fact.

24 Objective facts, yes. You get much beyond that, and

25 facts that are critical to a finding of guilt, very

Page 851

1 difficult for the defendant to stipulate facts.

2 Admission, yes. Weight, maybe. Facts, very

3 difficult. But that what is difficult to do, and it is

4 in both of our interests to do, is to focus on using

5 efficiently the material that has already been

6 developed in other cases.

7 In this case, and there may just be a

8 difference in terminology here between myself and

9 Mr. Nice, I would not call it reading into this case

10 evidence from another case. The American way of saying

11 that would be incorporating it by reference, so we

12 don't have a witness or a person simply drone on for

13 days reading the transcript from the other case. That

14 doesn't save any time. But if it is incorporated by

15 reference, both the direct and the cross, by agreement

16 of the two parties, and the party against whom it is

17 being offered has a full right of cross if they choose

18 to exercise it, which they may not if the cross was

19 adequate before, if they have a full right of cross,

20 particularly the defendant has a full right of cross,

21 it is his right to confront the witness that are at

22 stake here, then from our point of view by agreement it

23 seems to us possible and it may cure any difficulty in

24 the way the Rules are written that Your Honours have

25 noticed in the opinions in the Aleksovski case. We're

Page 852

1 fully prepared to do that, we have said from the outset

2 that we were, but that, of course, is why we have been

3 asking for access from last spring to the materials in

4 the other cases because we can't do that unless we have

5 the materials. The Prosecutor has had them all along,

6 being a unitary prosecutor.

7 So I simply focus on the useful distinction

8 between stipulations on the one hand and efficient use

9 of evidentiary material already developed on the

10 other. In reference particularly to Mr. Pajic's prior

11 testimony and the summary, the summary is much more

12 readable than his testimony; but in the Defence's view,

13 the summary is also much more than what he testified

14 to. When you look at the cross and you look at the

15 long and involved way in which he articulated things,

16 we believe that the summary is not a fair

17 representation of that testimony.

18 Now, the summary could be offered as an

19 expert report under Rule, I think it's 93, in which

20 case we would then be given 14 days to decide whether

21 we wanted to cross. In any case, when presented with

22 it as a summary of the testimony to be used or to have

23 the testimony itself brought into this trial, the

24 question in front of us was: Did we believe we needed

25 to cross this witness? What he testifies to goes to

Page 853

1 the absolute heart of the issue of the nature of the

2 HZ-HB and the HR-HB, absolutely critical matters from

3 the point of view of the Defence, the way the

4 Prosecution has characterised these organisations. We

5 looked at the cross-examination, we looked at the

6 direct testimony. We said to ourselves: We believe we

7 have to cross-examine this witness. And we had no

8 knowledge at that time whether the Prosecution could or

9 could not have him attend the trial. Straight

10 determination made on the merits.

11 The Defence is quite willing to try to use

12 other evidentiary materials efficiently as long as its

13 right to cross is fully respected, and it will ask

14 itself in every case in good faith what it needs to do

15 in light of the cross before.

16 Now, we can go on at some point, perhaps not

17 today, and talk about the Aleksovski decision in the

18 Appeals Chamber. Our position fundamentally is that

19 the Defence has to be given a right of

20 cross-examination when any material, evidentiary

21 material, is transported into this record.

22 JUDGE MAY: That is not what Aleksovski

23 decided. But it may be too early to debate that.

24 MR. SMITH: That's what I was going to

25 suggest, Your Honour.

Page 854

1 JUDGE MAY: We would encourage any use of

2 transcripts, if possible by agreement. What, it seems

3 to me, to be unfortunate, I mean, given the size and

4 scope of this case and the other litigation in this

5 Tribunal, is to relitigate precisely the same points.

6 So where evidence has been given in Blaskic and if a

7 transcript is offered and, as I say, we encourage both

8 sides to use the transcripts of witnesses to save

9 witnesses coming here, we shall want to know why the

10 opposing party wants the witness to give evidence in

11 this particular case, what it is, in addition to what

12 has already been asked, that requires the witness to be

13 here, and I would ask both sides to think very

14 carefully about trying to get such evidence before the

15 Trial Chamber and thus avoid having to call the

16 witnesses, and I say that applies to both sides. If

17 there are issues as to the need for cross-examination,

18 well, obviously we'll have to consider them on a

19 case-by-case basis.

20 MR. SMITH: We stand ready to do that, and we

21 have urged that on the Prosecution since the

22 springtime.

23 In summation, Your Honour, the Defence is in

24 an extremely difficult and prejudiced position at this

25 stage in the proceedings. It is not a position of our

Page 855

1 own making. We have done everything that we could have

2 done starting as soon as we became involved in the

3 case; and seeing this possibility coming, seeing, as

4 Your Honours have indicated, what happened in the

5 Blaskic case and in other cases, we believe that the

6 Prosecution has violated the Rules of the Tribunal,

7 that they have violated Your Honours' orders and the

8 spirit of those orders, and we urge Your Honours to

9 grant us the relief that I indicated earlier in terms

10 of exclusion of witnesses and in terms of the release

11 of our defendant, but we will argue that separately

12 when we get to the argument on the pre-trial release.

13 Thank you, Your Honour.

14 JUDGE MAY: Mr. Kovacic.

15 MR. KOVACIC: (Interpretation) Thank you,

16 Mr. President. I am going to try and be as brief as

17 possible.

18 First of all, let me say that I can agree and

19 completely support what my colleague Mr. Smith has just

20 said. I should just like to mention some other things

21 as well, and I'll try not to enter into repetition.

22 Please excuse me if I do and please interrupt me if I

23 do.

24 I should, first of all, like to indicate that

25 Mr. Nice took up almost two hours speaking about what

Page 856

1 he did, and he was not interrupted a great deal by the

2 Judges with any questions, and through what he said, he

3 said the following: We heard a great deal about what

4 the Prosecution plans to do and very little was told us

5 as to what has been done so far. In fact, Mr. Smith

6 told us a little more and explained a little fully to

7 the Trial Chamber what has not yet been done, and I

8 think that for us it is essential to know and to see

9 what has been done and what remains to be done so that

10 we know, with regard to quality, how far we are able to

11 start the trial on the 12th of April as has been

12 planned.

13 When this Trial Chamber issued an order, I

14 think it was on the 13th of February, to determine the

15 programme and what party should do what before the

16 trial, I must say that it was a very close and

17 responsible deadline; and at the time, as the Defence

18 counsel, in view of the materials that I was to have

19 been given in keeping with your order and especially

20 the translations into Serbo-Croatian, so that I could

21 work with my client, this did not happen. I did not

22 receive all the material which I expected to receive in

23 a very short space of time and by a certain deadline.

24 I did not receive all the material; I'm still waiting

25 for some of the material. Even the documents that

Page 857

1 we've heard have been given out today I received with

2 three, five, or ten days' delay, for technical reasons,

3 of course, because the Prosecution thinks that if, on

4 Friday, he gives out documents and sends them via fax

5 to my office and when, on that same Friday evening, I

6 come to the conclusion that I was not able to read it

7 because it was a technical issue with technical

8 difficulties involved; and when the Prosecution

9 similarly asks us to respect the deadlines and mentions

10 reasons such as printers as a reason for delay, I'm not

11 sure what he's talking about, or the translation

12 service and that it was running late perhaps or when

13 quoting similar reasons. So what has already been done

14 in the disclosure process, the documents which we have

15 received, many of them we have not received as has been

16 stated, so we have already lost a great amount of time,

17 the time that we had according to your order and when

18 it was issued.

19 I am not going to dwell on that any more at

20 present, but I should just like to mention the

21 following: I think that we must not forget the history

22 of this case, the indictment, and you yourself,

23 Mr. President, reminded us of that today, was raised on

24 the 19th of November, 1995, it was issued then; the

25 initial appearance was on the 8th of October, 1997; an

Page 858

1 additional amended indictment came on the 30th of

2 September, 1998, and so on and so forth. That is the

3 history. And we are receiving material today which,

4 quite obviously, is quite new material, new documents,

5 and the brief two days ago has shown us that some of

6 the investigators are in the field, and I think that I

7 can count on receiving much more material in times to

8 come than the ones envisaged so far.

9 The next thing Mr. Nice told us was that the

10 Defence, unfortunately, and perhaps I shall be

11 interpreting his words, I shan't be quoting him

12 exactly, and perhaps if I am wrong, I should like him

13 to correct me, that the Defence is not very cooperative

14 in establishing uncontested facts. That is not true.

15 We are also interested in having uncontestable facts,

16 and Mr. Smith has spoken at length about this, but I do

17 not see the possibility, apart from in some peripheral

18 matters or some notorious facts, but I don't see the

19 possibility of ascertaining as uncontestable certain

20 facts which we do not have to present proof for when I

21 do not have the necessary material and when the

22 Prosecution tells me, at the same time, that his

23 investigators are still in the field, on the terrain,

24 so not only the material that we have or that we expect

25 to get but when I am told that his investigators are

Page 859

1 still in the field, on the terrain. So quite obviously

2 we're going to receive even more material in due

3 course.

4 The other thing is the question of the

5 technicalities of obtaining uncontestable facts, not

6 only because we do not know all the facts and all the

7 documents and all the evidence and assertions that we

8 shall be receiving on our tables but because of the

9 method in which certain facts are viewed. First of

10 all, it might not seem that a fact has to be

11 ascertained as uncontested along with a

12 characterisation of that fact or some implications;

13 this might not be apparent at first glance. But as we

14 were holding our discussion a moment ago, I should like

15 to mention one example which I think is illustrative:

16 In paragraph 4 of the indictment, for

17 example, it is the section under the "Background"

18 heading, and in point 4, somewhere in the middle of

19 that paragraph, it is stated and says:

20 "Among its purposes was the establishment of

21 closer ties to or a union with Croatia, as

22 evidenced --"

23 I place the accent on the words "as

24 evidenced."

25 "-- by the HZ-HB's use of Croatian currency,"

Page 860

1 et cetera.

2 (In English) So in the list which was

3 mentioned today which was sent to us by the letter of

4 Mr. Scott dated 22nd February, there was enclosure

5 consisting of 37 items. We admitted seven, first

6 seven.

7 Let me draw your attention on items, let's

8 say, 15 on page 3, if you have that document, Your

9 Honours. Item 15 reads:

10 "At all times relevant to the amended

11 indictment, the HZ-HB used Republic of Croatia --"

12 JUDGE MAY: Just a moment. Which document

13 are you referring to, please, Mr. Kovacic?

14 MR. KOVACIC: Mr. Scott's letter to us on

15 February 22nd, and it was previously mentioned here

16 during the discussion. It is a part of

17 "Motion - Agreed Facts and Admissions by the

18 Prosecutor." I don't have the number. It was sent

19 directly by ...

20 Would you care to see?

21 JUDGE MAY: Yes. I think it's the original

22 list of admissions, 37 --

23 MR. KOVACIC: Thirty-seven points, yes.

24 JUDGE MAY: And it's number 15 at the top of

25 page 3; is that right?

Page 861

1 MR. KOVACIC: That's correct.

2 JUDGE MAY: We have that.

3 MR. KOVACIC: (Interpretation) At first glance

4 this sentence seems innocuous enough and, as Judges,

5 you'll probably ask yourselves why the Defence will not

6 stipulate this sentence as uncontested, but when we

7 link up the fact that the Prosecutor concludes, as he

8 states in paragraph 4 of the indictment, from the fact

9 that in Bosnia, Croatian currency was used and that the

10 Croatian language was used, that is point 16, and that

11 those people acquire or may acquire Croatian

12 citizenship, from that fact he draws the following

13 conclusion which he states in paragraph 4 of the

14 indictment. So we can talk about the facts but we

15 cannot talk about conclusions, and I am not now going

16 to take up any more of your time with the defence in

17 that regard and which -- I know about that because you

18 can draw quite different conclusions from those two

19 facts because the facts have quite different

20 substance. We can, by the same knowledge, testify that

21 they were considered to be German because the German

22 currency was predominantly used at the time, although

23 it is uncontestable that they were using Croatian

24 currency, but the conclusion drawn from that is

25 incorrect.

Page 862

1 So that even if, in the offered stipulations,

2 it would seem that we are talking about facts, we're

3 not actually talking about facts because the facts are

4 reflected in the indictment which is used as a

5 conclusion. Of course, I would have to have all the

6 other accompanying material that will be presented

7 during the hearing itself, but I think this is a good

8 example to quote and is illustrative.

9 I personally, as a Defence counsel, quite

10 obviously accept and approach in a very serious manner

11 the fact that many things, facts, can be ascertained.

12 But I think that we must, first of all, say that we

13 must have the majority of essential material,

14 practically all the material -- only if some material

15 which is of secondary importance is not given, that is

16 a different matter -- and, second, that we must be

17 careful of any characterisations or implications in

18 this enormous material of stipulations that we have.

19 We are dealing with material which was part of the

20 supporting material with the original indictment, and

21 essentially it served the purpose of explaining the

22 indictment, so to speak, and then, at that time, we

23 were not accustomed to this model of indictment, as we

24 heard in this case and the vagueness of it, and it was

25 only through that document that we were able to

Page 863

1 understand the indictment and read the indictment.

2 Now, that same document, written out in the

3 form of a table of this kind, once again is offered to

4 us to assess it as being uncontestable where it is full

5 of conclusions and so on. I sent a letter as soon as I

6 received the document and told the other party that I

7 will, in the week of the 22nd, be stating my views,

8 because after that, I get too many documents, and that

9 I will give my opinions point by point. Somewhere we

10 can leave a sentence or part of a sentence, but, in the

11 end, this will, quite obviously, be linked up with the

12 pre-trial brief and Rule 73 bis (F).

13 I think that I would like to close by saying

14 that although the Prosecution is late, and he seems to

15 be even later than we see at first glance in what he

16 has to do, the facts are very serious and they mean

17 more time will be necessary, serious time, for our

18 preparations, but I am ready for trial on April the

19 12th. But I feel that the Trial Chamber must find an

20 instrument to impose discipline because the fact

21 remains that the accused have been in detention since

22 October 1998, the fact remains that the indictment has

23 been amended, and the fact remains that not all the

24 material has been prepared, and I have in view

25 particularly the translations. There was sufficient

Page 864

1 time for the translations and, in my opinion, there is

2 no excuse for the fact that the translations do not

3 exist, especially for the material that the Prosecution

4 had in its hands in the course of 1998. We can, of

5 course, discuss the latest documents that he has

6 received from the field and documents dated 1999, I can

7 understand that, I can understand problems there, but

8 for the problems that they had in their hands in 1998,

9 we must have had and should have had the translations

10 there because it is a vital source of information, a

11 vital source for our defence and, of course, the

12 accused's interests are always foremost, and as we

13 heard, you have the accused before you and those are

14 your interests. Thank you.

15 JUDGE MAY: Thank you. Mr. Nice, it is, in

16 fact, time that we adjourn, but let me ask you

17 something. I think you told us about the translation

18 position. The point is made, why was this not done

19 before?

20 The other matter for which I would like a

21 brief reaction is as to whether it is right there are

22 54 witnesses for whom there are no statements, that is,

23 as alleged. What is the position there?

24 MR. NICE: Shall I deal with both those

25 points out?

Page 865


2 MR. NICE: So far as translation is

3 concerned, we are, of course, in the hands of the

4 translation unit of the institution. The rule as to

5 the translation of materials being -- the Prosecution's

6 responsibility was changed in the summer of last year.

7 Until then, it had been otherwise. So the burden first

8 fell on the Prosecution at that stage. I don't believe

9 the resources were enlarged or, if they were, not

10 significantly to accommodate that new responsibility.

11 I will deal with the whole history of the

12 case a little more after the adjournment because I

13 think in light of one or two of the other matters that

14 are raised and complaints that are made, it is

15 necessary for me to do so, but that rule came about in

16 the middle of last year, and as I have been at pains to

17 explain on earlier occasions, the process of

18 considering this material, which fell to me once I

19 became fully involved in the case in September or

20 October of last year, the process of considering the

21 material is a difficult one because the material that

22 you have got or is listed now is, by no means, all of

23 the material. It has not just been a question of

24 adding; it has been a question of adding and

25 subtracting.

Page 866

1 One possibility that I suppose could have

2 been pursued would be to have taken everything that

3 ever could conceivably be relevant and require it to be

4 translated over the interests of every other user of

5 the translation service. That, in my judgment, would

6 have been a wholly irresponsible approach and one that

7 probably wouldn't have been accepted.

8 So that from the beginning I was planning,

9 and carefully planning, a proper assessment of

10 witnesses on a witness-by-witness basis, to see who was

11 required and, accordingly, which material would need,

12 in due course, to be submitted for translation. That

13 is what was done.

14 I suspect, knowing the huge demands on the

15 service made by this institution, and indeed by all

16 institutions of this sort which frequently find

17 translation services one of their major difficulties

18 but characteristics, I suspect that if I had simply

19 taken the completely inclusive approach and submitted

20 all of the material at an even earlier date, that the

21 probabilities are we would be in no different position

22 from that in which we are now.

23 So that is part of the answer, but I must set

24 the whole case in its scene, if I may do that, after

25 the adjournment.

Page 867

1 As to witnesses named with no statement, of

2 course, the requirement of the Rules are that witnesses

3 shall be listed and separately that those for whom

4 statements exist have to have the statements turned

5 over at an appropriate time, namely, when ordered by

6 the Court. The practice in relation to other Chambers,

7 as I understand it, for witnesses for whom no

8 statements exist, has been to have a summary or a

9 synopsis, and we have already agreed that that will be

10 provided.

11 What sort of witnesses are they? They come

12 in various types. Some of them are proposed expert

13 witnesses, and I have dealt with that in some detail in

14 my latest motion, and why indeed it is very difficult

15 at the moment for witnesses to be preparing final

16 reports, but that's not the only -- that's not the only

17 difficulty we face, and I'll come back to one of

18 Mr. Kovacic's points in a minute.

19 The Chamber, I know, will accept that there

20 is -- I don't know, I forecast the Chamber may accept

21 that it is not entirely straightforward securing

22 witnesses of any type to come here to help, and that's

23 not just restricted to witnesses of fact, and that's

24 another reason why sometimes it is necessary for

25 witnesses to be forecast at the moment with no

Page 868

1 statement but, of course, a synopsis will be given of

2 what they can say and the topics they can cover, but

3 there is complete compliance by us with the Rules.

4 Indeed, there is no breach of the Rules save arguably

5 in relation to translation. I will deal with that

6 again after the adjournment. But it becomes inevitable

7 that there will be witnesses at this stage of the

8 preparation of the trial for whom no statements will

9 exist.

10 Can I say this? It would always have been

11 possible given particularly the provisions of 66(B), is

12 it I think? 66(ii), where there is reference to copies

13 of the statements of additional witnesses being made

14 available to the Defence when a decision is made to

15 call them. It would always be possible to have

16 interpreted these Rules as requiring us to do no more

17 at this stage than to provide statements of witnesses

18 for whom we had statements in translation given the

19 problems of the translation unit and to say in respect

20 of other witnesses whose statements were translated

21 later; therefore, within the general provision that we

22 can provide those at a later stage. We didn't do

23 that.

24 We could also have said in relation to, for

25 example, continuing inquiries, and there will always be

Page 869

1 continuing inquiries in these cases -- that's the

2 function of the investigator -- of the Prosecutor, to

3 carry on with the inquiries. There will always be

4 continuing inquiries. If they turn up material that is

5 favourable to the Defence, the Defence will hear about

6 it. If it turns up with important material favourable

7 to the Prosecution or that may support the Prosecution,

8 it is our duty to attempt to lay it before the Court

9 and we will do so. But let me say this: Where there

10 are continuing inquiries, it will always have been open

11 to us to say, "Well, we'll process that statement, send

12 it for translation, wait the months for it to come

13 back, and then say we're now ready to seek to serve

14 it." That we haven't done. We have tried to identify,

15 we've foreshortened the inevitable period that is

16 occupied in the consideration of witness statements and

17 witnesses so as to attempt to identify now at the

18 earliest possibility all of those who we may in due

19 course seek to call.

20 And lastly, the point that Mr. Kovacic was

21 dealing with and it comes back to an earlier point,

22 investigators in the field. Yes, they are part of a

23 continuing programme. I can reveal this much, of

24 course, about the procedures that I instituted, but I

25 think are probably common, it doesn't matter if they

Page 870

1 are not. Investigators in the field, of course,

2 because with the time lag that's passed between events,

3 intervening trials and this trial, the attitude of

4 witnesses is not constant and changes and it has been

5 vital for us to know which witnesses remain willing,

6 and where witnesses remain unwilling, to record that.

7 And that can't be done at the last moment, as I've

8 explained through the court to Mr. Kovacic. I think

9 that his request of yesterday is one I'm happy to deal

10 with, where a witness, to my knowledge, is unwilling

11 from the inquiries that I am routinely having made, he

12 will be told. So there is nothing wrong or suspicious

13 or anything of that sort about investigators being in

14 the field. They have to be there.

15 JUDGE MAY: Now, I don't think that has been

16 the subject of criticism. What, of course, is a

17 subject of criticism is if the Prosecutor produces a

18 whole mass of new material in the course of its case

19 and seeks to impose those upon the, upon the case. And

20 equally, if it tries to change the goal posts, if I

21 could use that homely metaphor, during the course of

22 the case, that, of course, is a serious matter. The

23 Trial Chamber, I would end by saying, of course, has

24 the power to exclude evidence if it is too late. But

25 that will be a matter for, may be an appropriate matter

Page 871

1 for ruling when it's sought to produce the evidence.

2 MR. NICE: Yes, of course. Maybe the Court

3 wants to rise for the adjournment, I'm sorry. There's

4 been no question of changing the goal posts. I haven't

5 done an analysis on this basis of the additional amount

6 of material, but I think in very large measure the

7 additional material, certainly that which relates to

8 the villages, is more or similar to that which has gone

9 before. And, therefore, there's no question of

10 changing the goal posts. Of course, if an important

11 piece of evidence indicative of the guilt of one or

12 other of these accused comes to our hands late in the

13 day for whatever reason, it is our duty to attempt to

14 put it in. And I can simply tell this Chamber that the

15 investigations continue, industriously and

16 purposefully, and they are bound to do so. And it's

17 always been foreshadowed. I have mentioned this on

18 several previous occasions and it's bound to be the

19 case that there may arise later evidence, may even be

20 evidence of particular significance, and we will have

21 to apply to put it in if such evidence becomes

22 available, and it will then be for the Chamber to

23 decide whether it is just to allow it in.

24 JUDGE MAY: Thank you. We will adjourn now

25 until 3.15. We will continue the sitting from 3.15 for

Page 872

1 an hour and a half or so, but we will hope to finish by

2 5.00 this afternoon.

3 --- Luncheon recess taken at 1.45 p.m.























Page 873

1 --- Upon resuming at 3.15 p.m.

2 JUDGE MAY: Mr. Nice, we've considered the

3 submissions that we've made this morning, and since we

4 wish to expedite matters, and rather than revisit the

5 same territory again, we propose to make the following

6 orders: First of all, we reaffirm the order that the

7 Prosecution pre-trial brief will be served by the 25th

8 of March, together with accompanying schedules. So

9 those should be prepared. We shall reaffirm the order

10 in relation to the Defence pre-trial brief, that it be

11 served by the 6th of April, but in so reaffirming, we

12 have in mind that there has been a volume of material

13 recently disclosed, and therefore that difficulty will

14 be considered when the pre-trial brief is received.

15 We shall say in relation to the untranslated

16 statements or those statements where there are -- those

17 witnesses for whom there are no statements, at this

18 stage, we shall not make any order excluding evidence,

19 the evidence of any witnesses whose statements have not

20 been served or have not been served as translated. But

21 we may rule during the case to exclude witnesses for

22 whom there are not proper statements or summaries, or

23 whose statements or summaries are untranslated. We

24 will consider that during the course of the case.

25 We shall say that all statements are to be

Page 874

1 disclosed in their translated form by the 6th of April;

2 that is less than a week before trial. Any which are

3 not disclosed in translated form will be considered for

4 exclusion.

5 Those, I think, are the orders covering the

6 matters which were raised this morning. There is one

7 other matter I want to deal with now, while it's in my

8 mind, and that concerns applications for protective

9 measures for witnesses.

10 MR. NICE: Yes, before we move on, Your

11 Honour hadn't heard me in reply to the matters that

12 were raised this morning because you only asked me to

13 deal with two issues.

14 JUDGE MAY: I know.

15 MR. NICE: I had a number of points to make.

16 I am, of course, entirely content with the majority of

17 the proposed orders that you've announced, but I have a

18 number of points to make and some concerns to express.

19 JUDGE MAY: Mr. Nice, if we had time, we

20 would hear you at length; but is there any concern you

21 wish to express --

22 MR. NICE: Yes.

23 JUDGE MAY: Yes?

24 MR. NICE: Yes, there is.

25 JUDGE MAY: Yes.

Page 875

1 MR. NICE: Having announced that, it might be

2 convenient if Your Honour concluded what you had said

3 as to process this afternoon, and then we will know how

4 much time there is available for me to take with that.

5 JUDGE MAY: The final matter. I want to deal

6 with the protective measures because I want that to be

7 in the order, and that is that any applications for

8 protective measures for witnesses must be made two

9 weeks in advance of their giving evidence, in writing,

10 with full reasons given as to why those measures are

11 sought, having regard to the ruling in Tadic in which a

12 Trial Chamber originally set out the reasons for giving

13 protective measures.

14 Now, I said before that we have a little over

15 an hour. So perhaps you would -- if you would deal,

16 Mr. Nice, with any concerns that you may have. We are

17 not anxious to hear a rehashing, if I may put it that

18 way, of the difficulties which I have no doubt the

19 Prosecution may have had and you have mentioned

20 before.

21 MR. NICE: Well, I'm grateful for that. What

22 I am concerned about is that if things are incorrectly

23 characterised, and repeatedly incorrectly

24 characterised, that can sometimes be effective in

25 infecting a perception of a party to litigation. The

Page 876

1 quite simple and short point here is that this

2 Prosecution has been full in its performance of all

3 orders, despite what's said, save only in respect of

4 translation, which was outside our control, and it is

5 absolutely and utterly wrong to characterise it

6 otherwise.

7 So far as disclosure is concerned, there

8 never was an order for disclosure of witness

9 statements. I can explain how that came about. Until

10 the order, which required us to disclose last Friday,

11 until then, the parties, probably with enthusiasm to

12 get the case on once it had been moved to this Chamber,

13 were all working on the basis that today was the date,

14 and we can see that from the transcript of the last

15 hearing. Following that hearing, the Court -- and at

16 that hearing Mr. Smith urged for the 1st of March. I

17 assumed it was the 11th, and it happens, the Court

18 ordered the 5th.

19 Subject to the application to extend, which

20 we made and which was granted, we have complied, and a

21 characterisation otherwise is simply unfair. This

22 Prosecution has been, I think, twice in 1998, recorded

23 by Judge Jorda as causing no delay when the same theme

24 was being raised. And in truth, what's been, I think,

25 a problem for the Defence has been the non-public

Page 877

1 material issue, which they have raised and indeed which

2 has ultimately been litigated. But that's it. And so

3 we're very concerned about that.

4 JUDGE MAY: Mr. Nice, we're the Judges of

5 these matters. We hear what the Defence says. I think

6 their complaint, their genuine complaint, can be not

7 about the conduct of the Prosecution to date, but their

8 genuine complaint could be the arrival of a vast amount

9 of material. We had understood you to say that you

10 were calling some 60 witnesses; we then find out there

11 are 334. Now, it may be that was a wrong

12 interpretation by us. But anyway, look, it is now

13 water under the bridge, and I don't propose to --

14 MR. NICE: Yes. The only thing that,

15 obviously, we're concerned about is the shut-off date

16 for translation, which is, and remains outside our

17 control.

18 JUDGE MAY: Well, perhaps you could bring

19 this order to the notice of those responsible.

20 MR. NICE: Certainly.

21 JUDGE MAY: As I've said, we will consider

22 the position as to any matter which isn't translated.

23 MR. NICE: I'm asked to clarify: The

24 translation is only into B/C/S or is it both B/C/S and

25 into English, because they are different functions, but

Page 878

1 I imagine they are performed by the same people?

2 JUDGE MAY: Yes. It's for both.

3 MR. NICE: We will of course draw your order

4 to their attention. We may have to revisit that.

5 Can I hand in, eventually, the lists that I

6 said were going to be updated because they're helpful,

7 and provide them also now for the Defence? I'm afraid

8 there are only a total of six, so three for the Court

9 and three for the Defence.

10 This list -- I'm sorry; I'll wait until it's

11 distributed to the Defence. We can make one more

12 available, if that will help, for the time being.

13 As I explained this morning, this is the

14 other document dealing with the indictment, and the

15 Court will see at, for example, number 4 on the first

16 sheet, that the witness's various statements are

17 connected with the counts as required by 73 bis, and

18 indeed further broken down by locations to assist.

19 Can I draw your attention to two particular

20 entries, infrequent in number, but, nevertheless, just

21 to explain: Number 205 on page 19, this is in all

22 probability one that has been put in earlier than

23 necessary in light of the Rules, but out of an

24 abundance of caution and in order to give people the

25 maximum notification, it's a current investigation. If

Page 879

1 you would be good enough to come back to number 67, so

2 that we can understand entries, number 67 IAC, that

3 refers to international armed conflict evidence given

4 by that witness as testimony in Blaskic, I think. So

5 it is evidence that can simply be drawn on subject to

6 agreement or Rules.

7 The last page, on the reverse, literally, of

8 the bundle is again this morning's list, a list that it

9 was forecast would be added to from last Friday, and

10 again contains quite possibly witnesses ahead of the

11 time when it's strictly necessary for us to list them

12 if we seek to call them, but nevertheless they are

13 listed, and their functions are identified. So I hope

14 that that will be of assistance generally, and it's the

15 reverse of the other schedule that I'll serve in due

16 course.

17 JUDGE MAY: When will you let us have the

18 batting lists for the first two weeks?

19 MR. NICE: Well, I would hope that the latest

20 I will be able to do that would be with the pre-trial

21 brief. I think the best thing is if I undertake to

22 make that something I'll perform on that day.

23 JUDGE MAY: Together with summaries, of

24 course, that you're going to -- we've already dealt

25 with.

Page 880

1 MR. NICE: You've already indicated how the

2 summaries are going to be dealt with, and I'll make

3 sure that that's accomplished.

4 JUDGE MAY: Very well. Thank you.

5 That brings us to the motion on

6 pre-trial/trial procedure. It may be convenient to

7 have that motion out. The first matter you asked for

8 deals with contact between witness and lawyer once they

9 have begun their evidence.

10 MR. NICE: Yes.

11 JUDGE MAY: Is there any dispute about that

12 one?

13 MR. SMITH: Yes, Your Honour. Mr. Stein will

14 be presenting the argument for us.

15 JUDGE MAY: All right. Well, I'm not -- yes,

16 perhaps we can see what's in dispute and what isn't.

17 What about the other matters? The defendant giving

18 evidence at the beginning of the case, is that in

19 dispute?

20 MR. SMITH: Yes, and Mr. Stein will address

21 that matter.

22 JUDGE MAY: All right. And likewise,

23 anything about cross-examination?

24 MR. SMITH: Yes, Your Honour, and Mr. Sayers

25 will address that matter.

Page 881

1 JUDGE MAY: All right.

2 Examination-in-chief?

3 MR. SMITH: No, Your Honour. That's standard

4 procedure.

5 JUDGE MAY: I don't think we need an order to

6 that effect. We don't need an order to that effect.

7 MR. NICE: No.

8 JUDGE MAY: Do you want -- perhaps, it's

9 right that you start, it's your application, Mr. Nice,

10 and it's pretty fully argued.

11 MR. NICE: It's pretty fully argued in our

12 motion. I alerted Mr. Smith months ago to my intention

13 to raise, I think, most of these issues with him, and I

14 think indeed identified one of the authorities that

15 touched on the point in English practice. But it's

16 fully argued. The purpose of cross-examination having

17 the defendant go first is all the same. It's to ensure

18 the integrity of the proceedings, to ensure that issues

19 are properly narrowed, that time isn't wasted, and that

20 the Court is not subject really to ambush defence. I

21 use the word in a neutral sense. It may be that it's

22 simply the experience of those experienced in various

23 jurisdictions that these procedures operate in a modern

24 way to achieve efficient trials with a narrowing of

25 issues, and that's the reason we propose it. But I

Page 882

1 think it would be better if I hear the argument and

2 respond if there's anything for me to say.

3 JUDGE MAY: Yes. We'll hear from the Defence

4 in whatever order they like to take it.

5 MR. STEIN: Thank you. May it please the

6 Court, I'd like to take the argument as set forth in

7 the motion because it's before Your Honours as such.

8 Mr. Nice would have all witnesses, including the

9 defendant and Defence experts, unable to discuss their

10 testimony with anyone. I assume he's very clear in so

11 stating that all witnesses would be subject to what he

12 proposes in Section A of his pleading. The problem

13 with that in the first instance is that it does include

14 the defendant who may testify or may not, but if he

15 does, his testimony may be rather lengthy, and during

16 that period of time, he would, in essence, not have the

17 assistance and advice of counsel. So it flies in the

18 face of the experience of comforting and guiding a

19 defendant through his testimony.

20 Similarly, with regard to an expert, it's not

21 necessary. Experts, unlike other fact witnesses, have

22 indeed a total grasp of the situation, of the facts, of

23 other experts' testimonies and other witnesses'

24 testimonies. So it is just an overabundance of caution

25 that is truly not needed.

Page 883

1 As to experts and as to other witnesses,

2 similarly, the risk that the Prosecution raises, the

3 risk of somehow improper coaching, improper discussions

4 by either the Prosecution or the accused, is simply not

5 warranted. We all have -- and I presume the

6 Prosecution as well as certainly ourselves -- a very

7 clear understanding of the line of demarcation of

8 what's appropriate discussion to a witness who has

9 taken the oath and is prepared to testify. Certainly,

10 there is no problem with discussing with the witness

11 the speed of his testimony, the clarity, and the

12 presentation skills which are endemic to the

13 courtroom. There is also no problem in going over with

14 the witness, or should not be, some confusion raised by

15 his testimony; and to instead wait for the other side

16 to examine elongates the process and doesn't shrink

17 it. For these reasons, we oppose the suggestion by the

18 Prosecution that during the pendency of the witness's

19 testimony, he essentially be held hostage.

20 I also want to raise a point raised by

21 Mr. Nice, and that is the difficulty of securing the

22 attendance of witnesses to this Tribunal. If, in fact,

23 it is the rule and the suggestion to ameliorate the

24 problem that the witness unit help out, counsel, coach,

25 we decline that invitation on behalf of our witnesses.

Page 884

1 It is difficult enough to get them to sign on as

2 experts, to sign on as fact witnesses and come to The

3 Hague. They are resistant and reluctant to be housed

4 and sequestered. They would much prefer and we would

5 much prefer the ability to negotiate their living

6 habitations, et cetera, here. So to the extent that

7 that is made as an offer, it is declined.

8 Those are the basic reasons we oppose the

9 suggestion that after the oath has been taken, there be

10 no contact with the witness, particularly a witness of

11 some length like the accused or an expert witness.

12 If I may turn to the suggestion relative to

13 the defendant testifying first?

14 JUDGE MAY: Just before you do, the problem

15 arose in one case in which, as I recollect, a witness

16 did not identify anybody when giving evidence in chief

17 but after the adjournment came back and identified I

18 think a defendant -- it doesn't matter -- and the issue

19 was then raised as to whether there had been discussion

20 with the appropriate attorney, and there had been, and

21 I remember the Trial Chamber therefore responded to a

22 motion by the other side, whichever side it was. It's

23 that sort of problem which we would be anxious to

24 avoid.

25 MR. STEIN: And appropriately so, and I

Page 885

1 concur in that. If it were a general or systematic

2 problem, I would agree as well. In that particular

3 case, I am given to understand it was again a

4 particularised problem. Of course, we all know from a

5 cross-examiner's standpoint, if you have that very

6 phenomenon presented to you in testimony, you're

7 chomping at the bit to ask for the reason why, after

8 the recess, and you will delve into quite rapidly the

9 reason for the sudden recantation or sudden

10 revelation. So there is an advocate side that almost

11 grabs at that. But that is inappropriate conduct, and

12 we certainly would not do anything along those lines

13 nor would the Prosecution, as far as we know.

14 JUDGE MAY: Well then, moving on to the next

15 point about the defendant testifying first. Certainly

16 my experience in a domestic jurisdiction is that that

17 is the rule, and it's based, as the Prosecution say, on

18 the dangers of tailoring evidence. That may not exist

19 so much here.

20 There is another aspect of it which is --

21 from the point of view of the Trial Chamber, it may be,

22 that it is convenient to hear from the defendant first

23 so you know what the Defence is and the other witnesses

24 then fit in.

25 I'm sorry, but let me continue. It is not

Page 886

1 the practice in the United States for the defendant to

2 go first.

3 MR. STEIN: It's quite to the contrary. It

4 is the practice in the United States for the defendant

5 to go last or to make the choice whether to go first or

6 go last, he can go first, and that, of course, is all

7 based on his (a) right to choose, (b) when he will

8 testify, if at all, (c) it's constitutional based

9 because of the adequate advice of counsel, including

10 counsel's choosing as to whether or not he will

11 exercise his silence or right to speak out on his

12 behalf.

13 So the practice in all 400 or so federal

14 courts in all 50 States is that the defendant chooses

15 whether and when to testify.

16 JUDGE MAY: What is the advantage to him?

17 MR. STEIN: The advantage to the defendant is

18 he can make a full knowledgeable choice as to whether

19 the Prosecution's case is such that he should testify,

20 as to whether or not parts of the case are such that he

21 should only testify as to those parts, and he can make

22 that decision after the Prosecution has rested its

23 evidence and after he has presented his evidence which

24 includes, of course, the examination of that evidence

25 by the Prosecution. If his case falls apart or,

Page 887

1 alternatively, stands together, he will elect to either

2 be the last batter, if you will, or waive. So if the

3 case has gone in fabulously without his need to do

4 anything, he can make that choice with the advice of

5 counsel. Alternatively, if the Prosecution has ripped

6 his case apart or there's a gaping hole or a witness

7 has, to use the -- provoke -- the expression we use,

8 "gone south on him," if a witness has given him

9 problems, he can then come in and say what he has to

10 say on all or part.

11 That process I've just described, of course,

12 encompasses the defendant's rights under the 5th

13 Amendment of our constitution, both the right to

14 silence and the right to due process, as well as the

15 6th Amendment.

16 Now, of course, I only raise that because we

17 don't have those constitutionally-based things under

18 this code, but the defendant does have a right to

19 choose to testify or not, has a right to have counsel

20 and work with counsel, and has those rights engrained

21 in the Tribunal's statutes and, as a parallel, in order

22 to exercise effectively and knowingly waive or give up

23 those rights, the only time to do it is at the close of

24 or, if he elects to, the middle. It may well be his

25 election to go first. But to mandate that he goes

Page 888

1 first or to forever waive we believe not fair, not

2 proper, and, frankly, doesn't help the cause along, to

3 address the point you initially made.

4 You already will have from the defendant a

5 pre-trial brief, you will have the submissions, as will

6 the Prosecution, so there will be a very clear concept

7 of what's going on before he ever testifies, and to

8 require him to testify first is truly not necessary.

9 (Trial Chamber deliberates)

10 JUDGE BENNOUNA: (Interpretation) Mr. Stein,

11 the question that's been put to you is not from the

12 perspective of the American constitution because, after

13 all, that's only of value in the American context.

14 Well, here we are in an international context. You

15 should not forget, nor should the Prosecution forget

16 this, we are here to ensure the proper administration

17 of justice. What is of interest to us is the proper

18 administration of justice.

19 Therefore, when the accused testify -- now,

20 the Prosecution states that he is prevented -- you have

21 stated that he is prevented from intervening but,

22 actually, he can intervene on several occasions, if he

23 wishes, not only in the beginning, because the

24 Prosecutor deems that he must be heard, to hear what

25 the accused has to say, and if, during the course, as

Page 889

1 you've just explained, during the course of the conduct

2 of the Prosecution case, hearing all of the case, if he

3 wishes to testify once again, I believe that he may do

4 so. He is not precluded from doing so, in my mind.

5 I don't exactly understand your argument with

6 regards beyond the fact that it may or may not

7 correspond to certain amendments within the

8 constitution, of course, which should apply here.

9 MR. STEIN: I made those constitutional

10 amendments (sic) because I am used to them, as Mr. Nice

11 suggested the English version because he was used to

12 it.

13 There is nothing in the statutes of the

14 Tribunal to support this proposal, and indeed the

15 practice in the other cases thus far -- Blaskic, which

16 is going on now -- was the defendant was not required

17 to give his testimony at the very beginning and, in

18 fact, he is testifying at the very end of his case. So

19 there is nothing to support, by way of a rule in the

20 Tribunal's process, the proposal now on the table.

21 Consequently, whether to use the English

22 rules or the American rules is really not the issue.

23 It is as you suggest: Which is best for the truth?

24 But you must balance, of course, the proposal whereby

25 the defendant testifies first and may, upon application

Page 890

1 and a showing of sufficient need, testify again, what

2 that will cause:

3 First, it will cause a delay in the trial

4 because the defendant, if he testifies first, must

5 testify on all matters, whereas if he testifies at the

6 end, he can limit his testimony.

7 Second, it will eliminate the possibility of

8 the defendant testifying first, then having a need to

9 testify midway or towards the end and making an

10 application to resume his testimony.

11 Whatever risk there may be in the tailoring

12 of evidence is offset substantially by the rights that

13 the Tribunal's rules and process and statutes give the

14 accused to have effective assistance of counsel in

15 making the choice of whether to testify and on what

16 issues. The defendant will certainly be entitled and

17 is entitled to hear all the proofs against him. That

18 implies having all the proofs against him beforehand,

19 before he comments on all those proofs.

20 I guess that's where I want to end up. The

21 defendant is, by right of this Tribunal, entitled to

22 not only hear all the evidence against him -- and that

23 evidence may be evidence adduced in the defence of his

24 own case -- before he makes his election and decides

25 whether or not to testify, and we urge you not to put

Page 891

1 the cart before the horse.

2 JUDGE MAY: Thank you very much. Yes, we

3 will hear the other argument.

4 MR. SAYERS: May it please the Court, my name

5 is Steve Sayers, and I'll be arguing the application

6 made by the Prosecution, essentially inviting this

7 Court to adopt the national rules of evidence that

8 pertain in England and Wales insofar as

9 cross-examination is concerned.

10 The starting point for any analysis of the

11 procedural suggestion that is made by the Prosecution

12 and that could have a potentially important impact upon

13 the presentation of evidence in this case, we would

14 submit to the Court is obviously the Statute of the

15 Tribunal, to begin with, and, secondly, the Rules of

16 Procedure and Evidence.

17 I am sure the Trial Chamber is all too

18 familiar with Article 20(1) of the Statute that

19 requires Trial Chambers to ensure that a trial is fair

20 and expeditious and the proceedings are conducted in

21 accordance with the Rules of Procedure and Evidence,

22 with full respect for the rights of the accused. The

23 very next article, Article 21(4) goes on to outline a

24 number of precepts that are important to guarantee the

25 rights of the accused. One is, of course, to be tried

Page 892

1 in his presence, and the other is to defend himself in

2 person or through legal counsel of his own choosing,

3 legal counsel who, I might point out to the Trial

4 Chamber, could come from a variety of national

5 backgrounds and legal systems.

6 Subsection (e) of that subsection of the

7 Statute also goes on to say --

8 THE INTERPRETER: Please slow down.

9 MR. SAYERS: -- that the accused has the

10 right to examine or have examined the witnesses against

11 him, once again, though, through lawyers of his choice,

12 coming from no specific legal tradition.

13 Turning to the Rules of Procedure and

14 Evidence for just a second, if I might touch lightly on

15 five statutes which we think are pertinent, the first

16 is Rule 85(B), and this establishes the general rule of

17 examination of witnesses, first by

18 examination-in-chief, second by cross-examination, and

19 then by re-examination.

20 The second rule is Rule 89(A), and that

21 provides that the rule of evidence set forth in this

22 section shall govern the proceedings before the Trial

23 Chambers. Not the rules or evidentiary customs in

24 England and not the rules or evidentiary customs in

25 Wales but, rather, the rules of evidence adopted by the

Page 893

1 Trial Chamber, and, in fact, the Rules couldn't be

2 clearer on the particular application we believe that's

3 being made by the Prosecution today through the

4 auspices of my esteemed colleague across the hallway

5 who is very familiar with the Rules of Procedure and

6 cross-examination that pertain in England and Wales.

7 They're familiar to him. But we would submit that

8 they're incompatible with the second sentence of Rule

9 89(A) because the Chamber shall not be bound by

10 national rules of evidence, and that is what we think

11 that my learned friend is actually asking for.

12 Rule 90(G), we would submit, pretty much

13 confides to the Chamber, on an ongoing and

14 individualised basis too, the power to control the mode

15 and conduct of examination and cross-examination and

16 the presentation of evidence.

17 Two things are significant, obviously: The

18 Trial Chamber has the capacity to adopt whatever

19 procedure it deems to be fit insofar as it pertains to

20 interrogation and the presentation of evidence so that

21 it can be effective for the ascertainment of the truth,

22 and, of course, that's the principal objective, and

23 also to avoid a needless consumption of time, and I'll

24 come back to that in just a minute, if I may?

25 I think perhaps the most important Rule, with

Page 894

1 respect, is Rule 90(H) because that is the Rule that

2 this Court has adopted with respect to

3 cross-examination specifically, so the Trial Chamber

4 already has before it a very explicit Rule regarding

5 cross-examination.

6 JUDGE MAY: It is not a Rule, though, which

7 deals with what the subject matter of cross-examination

8 should be. It is a restrictive Rule, if I can put it

9 that way, but it's not a prescriptive Rule which the

10 Prosecution are seeking.

11 MR. SAYERS: That's a very excellent point,

12 Judge May, but if the Court wanted to adopt a

13 prescriptive Rule as opposed to a restrictive Rule, it

14 certainly knew how to do that in a general way, and it

15 has not done that; and furthermore, I would point out

16 that the Rule which is advocated by the Prosecution

17 today is a Rule that has had no application in any of

18 the Lasva Valley cases so far. It's not been applied

19 in the Kupreskic case, it was not applied in the

20 Furundzija case, it has absolutely not been applied in

21 the Blaskic case, and it has --

22 JUDGE MAY: Well, as a matter of fact, it was

23 applied in one case because I can remember instructing

24 counsel to put their case on a particular issue

25 whether -- I can't remember what the issue was -- but

Page 895

1 whether somebody was there or not, I think was the

2 point. It doesn't matter.

3 What is there to prevent counsel putting

4 their case to the witness so that the witness has the

5 opportunity, as it were, of answering? Suppose the

6 example I give, if your case is that your client is not

7 there when a particular incident happened and the

8 witness says that he was, should you not put that to

9 the witness so the witness has a chance of dealing with

10 it?

11 MR. SAYERS: Well, to answer that question,

12 Your Honour, I think that it might be useful, actually,

13 to take a look at the derivation for the Rule that is

14 explained in the authorities that were pointed out by

15 the Prosecutor in its brief. The seminal case, I

16 believe, is the English case of Browne v. Dunn. That

17 was a libel case, a civil libel case, that was decided

18 in 1894. It, of course, involved a jury trial

19 context. The two opinions in that case that I would

20 like to draw the Court's attention to I think address

21 Your Honour's question in a very direct way.

22 Lord Herschell's opinion in that case is --

23 he explained, in the course of writing for the

24 majority, I believe, articulating the rule or the

25 recommendation that the case be put to the witness in

Page 896

1 cross-examination. Lord Hershell, even during the

2 course of the opinion explaining the rationale for that

3 rule, stated:

4 "Of course, I do not deny for a moment that

5 there are cases where notice has been so distinctly and

6 unmistakeably given and the point upon which he is

7 impeached" -- the witness, that is -- "or is to be

8 impeached is so manifest that it is not necessary to

9 waste time putting questions to him upon it."

10 So in the very case that articulates the

11 rule -- and I will address in just a second the

12 consequences of an inadvertent violation of that rule,

13 if I may? -- but the very case that articulates the

14 rule basically --

15 THE INTERPRETER: Please slow down.

16 MR. SAYERS: -- exception to it.

17 The second opinion comes from Lord Halsbury,

18 and in that opinion, Lord Halsbury says:

19 "I can quite understand a case in which a

20 story told by a witness may have been so incredible and

21 romancing a character --"

22 THE INTERPRETER: The interpreters request

23 that the speaker slow down, please.

24 MR. SAYERS: "... may be to ask him to leave

25 the box. I therefore wish it to be understood that I

Page 897

1 would not concur in ruling that it was necessary in

2 order to impeach a witness's credit that you should

3 take him through the story which he has told --"

4 JUDGE MAY: More requests for slowing down,

5 Mr. Sayers, please --

6 MR. SAYERS: Very well.

7 JUDGE MAY: -- particularly if you're

8 reading.

9 MR. SAYERS: Anyway, Lord Halsbury made the

10 point that:

11 "I would not concur in ruling that it was

12 necessary, in order to impeach a witness's credit, that

13 you should take him through his story again which he

14 had told giving him notice by the questions that you

15 impeached his credit."

16 I think the problem with the Prosecution's

17 suggestion really comes with an inquiry as to what the

18 consequences might be of advertently or inadvertently

19 running afoul of the rule. Even in England, as far as

20 I can ascertain, the cases are not clear. What is the

21 level of detail that is required in order to put the

22 case to the accused? Is minute detail required or just

23 general detail? Once again, the cases are on both

24 sides of that issue.

25 Another good example is: What happens if you

Page 898

1 don't put the case to a chap who is obviously telling a

2 tall story, a romancing story, to use Lord Halsbury's

3 vivid phrase? Again, the cases are split. Some cases

4 hold that this results in a concrete and irretrievable

5 acceptance of the witness's testimony. Other cases,

6 like O'Connell v. Adams, state that Justices have no

7 duty to accept evidence merely because a witness is not

8 challenged. Is the failure to cross-examine a witness

9 on a particular point brought out in direct

10 examination, does that result in a preclusion of the

11 right to introduce evidence on that point? It could in

12 some cases indicate, yes, that is the rule. Other

13 cases, however, do not in the English system, a good

14 example being O'Dogherty v. Gallagher that was decided

15 four years ago.

16 THE INTERPRETER: May the counsel please slow

17 down again for the benefit of the interpreters.

18 MR. SAYERS: Once again, the decision is in

19 the discretion of the trial judge and, frankly, we

20 don't need that particular rule because you already

21 have that discretion in Rule 90(G).

22 Perhaps the most vivid demonstration of why

23 there is wisdom in Rule 89(A) which states that the

24 Trial Chamber is not to adopt national rules of

25 evidence comes from the scholarly commentary on Browne

Page 899

1 v. Dunn, and I don't purport to be any expert upon this

2 particular rule of cross-examination but I would point

3 out to the Court that six years ago, one scholar named

4 Gilles Renaud published an article in The Advocate

5 which examined all of the underpinnings of the rule,

6 its applications, cases in which it had been applied to

7 exclude evidence, cases reaching a contrary result, and

8 the title of the article was, "Case Comment: Regina v.

9 MacKinnon: Has the Rule Requiring Notice of Future

10 Impeachment been Un-Dunn?" A somewhat laboured pun but

11 nonetheless a point that was rather well made, and the

12 scholar actually makes this observation, Your Honours:

13 "There is considerable doubt as to precisely

14 when the rule is breached and also as to the penalties

15 that attach to a party who is in breach of it; hence,

16 can any rule be said to exist under these

17 circumstances?"

18 Yet, Your Honours, that's the rule that the

19 Prosecution would seek to foist upon the Defence in

20 this case.

21 We do not think, and we vehemently oppose the

22 imposition of any national rule of evidence that might

23 apply in the courts of England or Wales to the

24 proceedings before this Tribunal. There is no jury

25 present in this Tribunal, as the Court has already

Page 900

1 observed today. So one of the reasons for that

2 particular rule may not come into play at all during

3 the course of cross-examination in this case. But more

4 importantly, there is no rule that requires it, and

5 indeed, there is a rule that deals expressly with

6 cross-examination, Rule 90(H), albeit in a restrictive

7 capacity and not prescriptive, as you say, but Rule

8 90(H) does not say what the Prosecutor now wishes it

9 did say.

10 Sometimes, Your Honours, we would submit,

11 just as did Lord Halsbury and Lord Herschell, that

12 sometimes the wisest cross-examination and the most

13 prudent and most professional cross-examination may not

14 be to cross-examine at all, but by having unclear and

15 unfamiliar and rather hazy national rules apply that

16 are fraught with pitfalls for the unwary, not familiar

17 with the twists and turns of the jurisprudence that

18 gave rise to that rule, we think is not consistent or

19 consonant with the provisions of Rule 89(A) or 90(H)

20 and for those reasons we oppose the application made by

21 the Prosecutor. Thank you.

22 JUDGE MAY: Thank you, Mr. Sayers.

23 Mr. Kovacic, is there anything you want to add?

24 MR. KOVACIC: (Interpretation) Yes,

25 Mr. President, and Your Honours. I will be very

Page 901

1 brief.

2 I would just like to add several things. If

3 we go point by point from the Prosecution motion

4 regarding examination-in-chief, we agree with my

5 colleague at the bench. We have no objections.

6 Regarding (b) and (c), I again completely

7 support the arguments put forth by the Kordic Defence,

8 and I would like to add the following in point (a),

9 which is whether contact between the witness and

10 counsel will be allowed after the oath has been taken.

11 The rules have not spelled out details, and we think

12 that the choice should be taken into account; at least

13 absent rules, we feel that we need to have freedom of

14 choice.

15 Let me give you the local practice of the

16 Republic of Croatia. The Criminal Code, Article 339

17 provides full freedom to the accused, and this is

18 referring only to the situation where the accused is

19 witness in his own case. He has the right during the

20 examination-in-chief to consult with his counsel, but

21 he cannot confer with him regarding the already-asked

22 questions. So this is what I can refer you to with

23 respect to the local jurisdiction. So the accused has

24 the right to consult with his counsel, even in the days

25 while he is testifying, but he cannot consult him with

Page 902

1 respect to the specific question once it is asked. So

2 this is all I have to add with respect to Point A.

3 Now, with respect to Point B, which addresses

4 the time, that is, the order of Defence witnesses, let

5 me again point out that the Rules have not been very

6 specific in that regard. We need interpretations of

7 the Rule in that respect.

8 Let me first ask, what is the right of the

9 Defence to decide, after the Prosecution case has been

10 made, to proceed with the Defence on a particular issue

11 or not? If the Defence considers that no proof has

12 been presented by the Prosecution, it may choose not to

13 present any evidence of its own. Also the Defence

14 should have the right to make a decision whether its

15 client will testify at any point during the

16 presentation of evidence. We believe that the right of

17 the defendant would be violated if it were to be forced

18 to reach this decision ahead of time. I think that it

19 should be based on the evidence presented by the

20 Prosecution; it has to be able to see what the results

21 are of its own evidence, what the full effect was, and

22 then decide whether it is necessary or not to put its

23 client on the witness stand.

24 I think we also have to consider all the

25 authorities. We have now quoted the British and U.S.

Page 903

1 sources; let me just also mention the local laws in

2 Croatia. First of all, the old laws which were in

3 force in all of the former Yugoslavia, we had a

4 Criminal Code which was inquisitory. The old law that

5 was in force in Croatia during the former Yugoslavia

6 required that the trial began after the indictment was

7 read, that the accused testified at first or used the

8 right of silence. And if he choses not to use the

9 right to testify, he could still, at any point during

10 the trial, decide to testify, which meant that he could

11 do it either during the trial or at the end of the

12 trial.

13 A new Criminal Code has now been adopted in

14 Croatia, and in this new law, the approach has

15 changed. In the new law, the new law provides that the

16 accused -- and this is Article 334,2 -- that after the

17 presentation of evidence, that is, after the case in

18 chief has been concluded, the accused can testify. In

19 other words, it is the position that has been adopted

20 by the Defence here. In other words, he can testify at

21 the end of the presentation of evidence. And I just

22 want to add that the procedure in Croatian law does not

23 distinguish between the Prosecution case in chief and

24 the Defence case in chief; it is one procedure.

25 My point is that if the rules did not go so

Page 904

1 far as to spell all details, we believe that this

2 Chamber needs to follow certain universal legal

3 principles and adopt such solution which would give the

4 parties equality of arms and take into account fairness

5 and justice. Thank you.

6 JUDGE BENNOUNA: (Interpretation) I would like

7 to ask you a question about cross-examination,

8 Mr. Kovacic. With regards to what Mr. Kovacic stated,

9 the rules, Rule 90(B), which was cited a moment ago,

10 states that, "In cases not otherwise provided for in

11 this section, a Chamber shall apply rules of evidence

12 which best favour a fair determination of the matter

13 before it, and are consonant with the spirit of the

14 Statute and the general principles of law."

15 Therefore, now we're looking at the general

16 context of the testimony, and the purpose here is to

17 ensure that we have maintained balance and fairness.

18 Of course, we must take into account national laws;

19 these are principles which are generally drawn from

20 national laws, in light, of course, of the Statute and

21 of the Rules, and of course this is in accordance with

22 our own Statute.

23 But this is what this brings us to now. With

24 regards to the cross-examination, there is a general

25 principle, with regards to silence, that silence is

Page 905

1 interpreted depending on the context; it depends when

2 that silence occurs. It all depends on the context in

3 which the silence takes place when there is silence.

4 There is an entire international jurisprudence on the

5 subject; I will not invoke them here now.

6 What was proposed by the Prosecution was that

7 one should not allow the Tribunal or leave the Tribunal

8 in an area of ambiguity, that when there is an

9 examination, that the Defence may of course not proceed

10 with the cross-examination. They may decide then to

11 keep silent. And in that case, one must avoid any

12 ambiguity. This is what we are proposing, that there

13 be an examination and perhaps not have a

14 cross-examination and then find ourselves with a

15 Defence that reserves its right for a later time and

16 may at that point explain its position to the

17 Tribunal.

18 So here we are, and we simply wish to

19 understand what the strategy is and what type of means

20 one is going to use. This is what we are proposing,

21 without needing to look any further. If you will, this

22 is the rule of transparency, where if we feel we need

23 to go further -- for example, if we feel that a

24 cross-examination may shed further light on the issue

25 or perhaps the Defence may simply say that they wish to

Page 906

1 research the possibility of reserving this

2 cross-examination for another time period for such and

3 such a reason.

4 I don't know what the Defence feels about

5 this position, but I would like to have some response,

6 if there is a response, from the Defence.

7 MR. KOVACIC: (Interpretation) Of course, Your

8 Honour. I believe -- and I think that this proposal is

9 based on the British practice -- obviously there are

10 different types of situations, and I believe my

11 colleague Sayers has addressed some of them.

12 In principle, I believe that whether a

13 witness should be challenged, if a counsel believes

14 that the statement of the witness is not consistent

15 with, let's say, a previously given statement or a

16 previously given testimony or during the process of

17 investigation, I believe that we need to challenge him

18 and need to challenge him right away. In fact, we do

19 this in cross-examination. However, we have different

20 types of situations where only later, after the

21 presentation of other evidence, we realise that this

22 witness said inconsistent things and we failed to

23 address those things.

24 So it is when we identify inconsistencies,

25 this is either with respect to his other statements or

Page 907

1 with other statements of other witnesses, I believe

2 that we need to give him an opportunity to explain, to

3 clarify this inconsistency before we ask that this

4 evidence be thrown out. But I don't think that we

5 should set a strict rule because we have different

6 types of situations. There will be situations where we

7 will not able, as Defence counsel, to immediately spot

8 that this witness is not telling the truth or not the

9 full truth.

10 So in my view, the question is one of the

11 economy of the proceedings because we may find

12 ourselves in a situation where we have to recall a

13 witness at another time. So I am prepared to bear that

14 in mind as a guiding idea, but I am not inclined to

15 have that set as a strict rule, a priori. And again,

16 let me point out that I come from a different legal

17 system. This is something that we live with.

18 Obviously we can adapt our positions, but in our Rules,

19 if I had not asked certain questions in

20 cross-examination, the Trial Chamber cannot conclude

21 that I agree with the testimony because the Trial

22 Chamber in the end will be the one to say: "I don't

23 believe such-and-such a witness for such-and-such

24 reasons" or not, regardless of whether the other side

25 had challenged him at the cross-examination or not.

Page 908

1 But obviously I would like to be able to challenge the

2 witness, I would like to have that opportunity, and if

3 I may assist you in any further ways, I am prepared to

4 do so. Thank you.

5 JUDGE MAY: Thank you.

6 Mr. Nice, we'll hear you in reply, if you

7 could keep an eye on the clock.

8 MR. NICE: I shall be very brief.

9 Contact with witnesses, the suggestion that a

10 defendant, for example, needs to be -- I think the word

11 was "comforted" -- while giving his evidence and guided

12 as to his testimony is one that is to some very

13 concerning. A witness, once he starts, can of course

14 be spoken to -- not necessarily by his lawyers; that's

15 a matter of particular regimes -- but can be spoken to

16 about matters not to do with his evidence. It is far

17 better for the witness, and for the Court that he is

18 left alone with his memory and his documents. The

19 temptation to corruption of the evidence is

20 overwhelming, and anybody who has seen examples of

21 testimony before and after breaks where there has been

22 contact with attorneys is somewhat embarrassed about

23 the role of the lawyer.

24 JUDGE MAY: Of course, it may not be

25 advertant.

Page 909

1 MR. NICE: Absolutely.

2 JUDGE MAY: The corruption of the testimony

3 could be wholly inadvertent and wholly innocent.

4 MR. NICE: Indeed, sir. And of course the

5 witness is bound to say, or even to say by

6 implication: "How am I faring? What can I do

7 better?" And it is so dangerous that that's why the

8 Rule -- and these are not English rules; these are

9 rules that are practiced widely throughout the world,

10 as I understand it, in common-law jurisdictions, and

11 they secure a safer trial.

12 Incidentally, what's good for fact witnesses

13 is also good for experts, in my respectful submission.

14 Experts, although they come to the court with sometimes

15 more credit than ordinary fact witnesses, sometimes

16 leave court with considerably less credit. They are as

17 corruptible, innocently or otherwise, by contacts with

18 the interested parties as any other witness.

19 The domestic problem referred to is really no

20 problem at all. If the Defence choose not to make use

21 of the Victims and Witnesses Unit, it's, of course,

22 possible for someone else to deal with the domestic

23 arrangements, not the lawyers. Indeed, you wouldn't

24 really expect the practicing lawyers to be ringing up

25 the hotels and getting them into the taxis, at least

Page 910

1 not in this case, as I would imagine.

2 So it's our submission that the best course,

3 in order that you can you have the most satisfactory

4 evidence, is that once any witness takes the stand, he

5 is not allowed or she is not allowed further contact

6 with the lawyers until it's all over.

7 JUDGE MAY: As far as the other issues are

8 concerned, what's said is that this is a peculiar

9 English rule -- or particular, perhaps I should say --

10 English rule in relation to the defendant giving

11 evidence, and also cross-examination. You've set out

12 the reasons in your brief for why you say it should be

13 applied here. Is there really anything further?

14 MR. NICE: There's nothing to add, except

15 indeed to observe it's -- again, it's certainly not

16 just an English practice. We've set out, I think,

17 Spain and Germany as two of the locations, but it also

18 applies elsewhere, South Africa and other places, but

19 I've only identified some, for this reason: We're not

20 here to do it by weighing which number of jurisdictions

21 follow a course, just to simply show that there is a

22 difference, and it's for this Tribunal to decide which

23 is most apt and appropriate for its jurisdiction.

24 But can I simply say this: Any practice that

25 requires the trier of fact to ponder an additional

Page 911

1 possibility -- whether it's tailoring of evidence,

2 accidental tailoring of evidence, contact with a

3 witness that has led to the tainting of evidence,

4 whatever it may be -- any practice that requires that

5 additional element to be considered by the trier of

6 fact is making the trier of fact's job much more

7 difficult. It is introducing a wild card, and I'll

8 deal with that as I come to the issue of

9 cross-examination by the most simple and homely of

10 examples, but which may apply in the case.

11 Supposing a witness speaks of a meeting and

12 puts one of the defendants -- let's be neutral:

13 Defendant X -- at the meeting. It's an important

14 meeting; X was there. The issue is never joined,

15 namely that issue X wasn't there. Various things

16 follow. The witness can't say, "Of course he was

17 there, and what's more, I can prove it by this and this

18 means." What a silly suggestion. The witness can't

19 say, "Well, come to think of it, you might be right.

20 Perhaps he wasn't there."

21 On top of all that, the Prosecution, hearing

22 the issue not being challenged, and facing the

23 particular problems we face here, may decide not to

24 call the other four witnesses who could have put the

25 defendant X at the meeting.

Page 912

1 At the end of all the evidence, or at the

2 beginning of the Defence case, whichever it may be,

3 defendant X says: "I wasn't there." The trier of fact

4 then has to say: "What would the witness have said if

5 that had been raised with him or her? He might have

6 dealt with it entirely satisfactorily. He might have

7 dealt with it wholly unsatisfactorily. Now I don't

8 know."

9 It's a rule, this rule of cross-examination,

10 widely applied in the common law as I understand it.

11 Again, we're not doing it by weighing the jurisdictions

12 that do and the jurisdictions that don't. But I can

13 say that the case of Browne v. Dunn, which is probably

14 not falling off the tongue of every English lawyer --

15 it was referred to me by someone else who in another

16 jurisdiction, Canada, uses it as the rule that

17 underpins the rule there. They knew about it.

18 It is a rule that is actually quite easy of

19 application and extremely helpful to the trier of fact,

20 and it makes purpose to cross-examination which is

21 otherwise simply, presumably, a vehicle for general

22 discrediting of the witness, skirting the issues if

23 it's convenient to do so.

24 I don't think I have anything else to add.

25 These matters are all plainly allowed for under the

Page 913

1 Rules, and in particular under Rule 90(G), "the mode

2 and order of interrogating witnesses and presenting

3 evidence so as to make the interrogation and

4 presentation effective for the ascertainment of truth,"

5 and to avoid the needless consumption of time. We

6 would commend these Rules to the Court -- not these

7 Rules, these approaches.

8 JUDGE MAY: Judge Robinson?

9 JUDGE ROBINSON: Mr. Nice, as to your motion

10 in respect of C, cross-examination --

11 MR. NICE: Yes.

12 JUDGE ROBINSON: -- you say that this is a

13 common-law approach. If it is a common-law approach,

14 of course it has been developed through case law. I'm

15 not aware that it has been actually reflected in any

16 statutory form in any jurisdiction. What I want to ask

17 is this: Why is it necessary to have a rule like this

18 reflected in writing? The Prosecution bears the legal

19 burden of proof to the requisite standard, and it is

20 the function of this Tribunal, this Chamber, as the

21 trier of fact, to determine on the basis of all the

22 evidence presented, whether the Prosecution's case has

23 been proved to the requisite standard. Similarly, in

24 particular cases, it will have to decide in specific

25 matters whether a matter has been proved.

Page 914

1 You say that it will make the life of the

2 Chamber easier, but the degree of ease I think is not

3 really a relevant matter. I mean, speaking for myself,

4 I'm prepared to live with the difficulty that it

5 entails; you know? And to live with the discretionary

6 power which I think rests with the Chamber as the trier

7 of fact in a situation such as this.

8 MR. NICE: Point number one, not covered by

9 authority, as I set out in the motion, because it is so

10 well understood that it is imposed as a rule by judges

11 in civil and criminal matters automatically. The

12 sanction for failure to apply the rules sometimes is

13 the recall of the witness, sometimes is the inference

14 against the party whose counsel has not put something

15 it should have done, sometimes there's simply -- and

16 frequently -- there's no sanction at all because it is

17 a matter of oversight. And if I have missed

18 interpretation, I dare say Judge May may be able to

19 flesh that out. But that seems to me the general

20 application of a rule so well understood that it

21 doesn't need to be covered by authority because it is

22 largely a matter of practice.

23 As to the second point, yes, of course, the

24 Court can live with any difficulties that it faces as a

25 result of the Rules or that it chooses to face as a

Page 915

1 result of its interpretation of the Rules or orders it

2 will or will not make. What we draw to your attention

3 is that you have the power to require this method of

4 interrogating witnesses under 90(G), that doing so will

5 make the interrogation and presentation effective for

6 the ascertainment of the truth in a way that the other

7 method will not, the other method which again allows

8 much more significantly, the possibility of trial by

9 ambush.

10 Further, for the reasons I have been at pains

11 to advance throughout this case thus far, the rule can

12 avoid the needless consumption of time. This is matter

13 of great importance. Typically, in complex cases where

14 there are a range of discrete issues that have to be

15 established and dealt with, once you have established

16 an issue on evidence that is not challenged, you are

17 safe to move on, on the basis that that is effectively

18 accepted or not challenged. And as a rule, that saves

19 a huge amount of time.

20 JUDGE MAY: I suppose another way of thinking

21 aloud about dealing with this, the point you make about

22 the witness, the witness says: "'A' was at the

23 meeting." Under the English rule, the Defence of "A"

24 would be required to put to the Witness, "'A' was not

25 at the meeting," if that's the case. And that's the

Page 916

1 Rule that you're --

2 MR. NICE: Yes.

3 JUDGE MAY: -- advocating now. And the

4 reason you were advocating it, as I understand it, is

5 you are saying one of the underpinnings of the Rule is

6 it then becomes clear as to whether there is an issue

7 on the fact. Also it gives the witness the opportunity

8 to answer --

9 MR. NICE: Yes.

10 JUDGE MAY: -- whatever it may be.

11 Another way, I suppose, of dealing with it in

12 a Tribunal such as this, without a jury, is simply to

13 ask the Defence: "Is it challenged that 'A' was at the

14 meeting?", and expect an answer.

15 MR. NICE: In the way that I think Your

16 Honour did in the case to which you referred and which

17 I had heard -- I think, or seen. I'm not sure.

18 JUDGE MAY: Yes, I suppose, I mean, in order

19 to manage the case, which is the important issue, we

20 could perhaps get on without the Rule which you

21 suggest, but requiring us to play a part in deciding

22 where we want to find out whether there's an issue or

23 not.

24 MR. NICE: That's certainly an alternative.

25 The losers then are likely to be the cross-examiners

Page 917

1 because, of course, if the losers have a case to

2 advance against a witness, all too frequently it is

3 they who can take the benefit of the cross-examination

4 on the point because the witness may yield or may break

5 down or may show weakness that subsequently can be

6 relied upon in argument.

7 I should of course have made the point, it's

8 in the motion, that's what sauce for the goose is

9 indeed sauce for the gander. The Defence witnesses and

10 the defendant himself, when cross-examined, should have

11 the opportunity of dealing in cross-examination with

12 all important parts of the Prosecutor's case, for the

13 same reason or for one of those same reasons. It's not

14 fair as against him, when all the evidence is closed,

15 to say "Well, I really wasn't given a chance to deal

16 with it"; isn't the proper inference for you to draw

17 this, that, or the other thing? And the Defence are

18 entitled to say, and typically do in cases where this

19 practice obtains, "Well, what do you think of that,

20 members of the jury or Your Honour? It wasn't even put

21 to him, they didn't have the courage to advance it to

22 him, and now they try and sustain it as an argument to

23 you."

24 So it is equality of arms, and it's fair all

25 around. I don't think I can amplify -- I will deal

Page 918

1 with any questions. I don't think I can amplify what

2 I've already said.

3 JUDGE MAY: Thank you. Our time is limited.

4 There are two motions further which we have to

5 consider, both of them Defence motions. The first one

6 is the motion to which you have not had the opportunity

7 to respond. It's the 8th of March, for advance notice

8 of Prosecutor's intent to offer evidence subject to

9 exclusion under Rule 95, and it relates to any evidence

10 attained in the searches in Vitez on the 23rd of

11 September of last year. At the conclusion, they

12 request the Prosecutor to provide two weeks' advance

13 notice to offer such evidence. Is there any objection

14 to that?

15 MR. NICE: There are two things in this

16 motion. I think one is that the timetable point --

17 which is not a point at all, and I said to my friends

18 yesterday, why on earth didn't they pick up the

19 telephone and ask me about it? I've established direct

20 and effective lines of communication. Of course it's

21 sensible that this argument, which may take some time

22 and may be an argument of some importance, we have yet

23 to discover, should be timetabled so as not to

24 inconvenience witnesses, not have witnesses hanging

25 around. And of course I'll calculate, when the first

Page 919

1 piece of material from the search warrant is likely to

2 be the subject of an attempt to lead it in evidence,

3 I'll notify everyone and we can timetable matters

4 then. It may even be that the best time to deal with

5 it is right at the beginning of the case, but give us a

6 week or so to sort that out. It really doesn't need a

7 motion to deal with procedural matters; it simply can

8 be dealt with between counsel.

9 As to the other matter which they raise, that

10 is the requirement for an inventory. This is really

11 something that was, I think, omitted from their earlier

12 motion doesn't allow for a complete new motion. If

13 they had simply said, "Well, we're sorry, we overlooked

14 that. Can we raise this, and here's the discrete legal

15 basis?" If there is one or merits basis for having an

16 inventory, if they had put that in a separate motion,

17 we would have responded to it. What we would now like

18 is time to respond to simply that part of it, if we

19 judge that a response is needed.

20 JUDGE MAY: I'm sorry, are you prepared to

21 provide the inventory?

22 MR. NICE: No, not at the moment, not the

23 full inventory.

24 JUDGE MAY: I'm sorry, you want time to

25 respond to the motion?

Page 920

1 MR. NICE: To that simple part of the motion,

2 which is the only part which really -- possibly calling

3 for a reply. Yes, please.

4 JUDGE MAY: And your response would include,

5 would it, indication of when argument would be suitable

6 on the issue of the evidence --

7 MR. NICE: I hope so, but I'm perfectly happy

8 to continue with the negotiations with my learned

9 friends by telephone, and we can fix those things up.

10 I have to say, since I'm on my feet, that I'm unhappy

11 to discover or return to the personalised --

12 (Trial Chamber deliberates)

13 JUDGE MAY: Yes.

14 MR. NICE: I'm simply going to say I'm

15 unhappy to discover that we've returned to the rather

16 personalised approach to pleadings which I thought we

17 had knocked out last year in an exchange between myself

18 and my learned friends, the characterisations of the

19 Prosecutor herself and so on in this motion are most

20 undesirable in our submission. I'm not going to take

21 any more time with it because I know we're pressed for

22 time, but it is unfortunate in the extreme. And I

23 venture to suggest that it is not entirely helpful.

24 JUDGE MAY: We would echo and deprecate any

25 personalisation of these matters. They can be dealt

Page 921

1 with professionally without comment. So how long are

2 you asking for to deal with this?

3 MR. NICE: We've got quite a lot to get

4 done. I would ask three weeks, I think, if that's

5 possible. It's a small issue, but I now have a lot of

6 things to get dealt with through the team, and I would

7 ask three weeks.

8 (Conference with legal counsel)

9 JUDGE MAY: Three weeks is conveniently the

10 1st of April, before the Easter break.

11 MR. NICE: I know you've got one other motion

12 to deal with, and Mr. Scott will be dealing with that.

13 Can I just mention one other small point?

14 JUDGE MAY: Let me -- response 1st of April.

15 MR. NICE: Thank you very much.

16 JUDGE MAY: And as far as the Defence are

17 concerned, it can be raised in due course at some stage

18 during the trial or at the beginning of the trial, but

19 we'll give the Prosecution time to respond. And

20 certainly, if we can timetable a hearing in such a way,

21 if it's needed for the argument, if we have to have a

22 hearing in such a way as not to inconvenience

23 witnesses, we'll do that.

24 MR. SMITH: Thank you, Your Honour. We have

25 no problems with giving the Prosecution time to respond

Page 922

1 on that point. I might only add that we have no

2 intention and did not think we had personalised the

3 argument. This is a matter that we feel extremely

4 strongly about, deeply, strongly about, and we have

5 characterised what we believe are the implications of

6 the actions of the Office of the Prosecutor

7 institutionally. We had no intention of calling into

8 doubt the bona fides of our learned colleagues in

9 particular. Rather, however, we felt it necessary to

10 spell out explicitly what we believed the consequences

11 were of the positions institutionally being taken by

12 the Prosecutor. And if we have offended the Chamber, I

13 apologise. We will attempt to walk the line between

14 effective and zealous advocacy for our client and any

15 excess as best we can. Thank you, Your Honour.

16 JUDGE MAY: Thank you. I understand -- what,

17 one more motion?

18 MR. NICE: One more motion, two matters of

19 administration relating to the translation order. Can

20 I just deal with clarity now?

21 JUDGE MAY: Yes.

22 MR. NICE: The rules require translated

23 statements, of course, into B/C/S or into the language

24 that the accused understands, and that's our duty. It

25 is not in respect of accompanying documentation, as we

Page 923

1 understand it, nor is it, in fact, our duty to

2 translate the other way around. I think it is the

3 registry's duty still to do that and I will be

4 corrected under Rule 3.

5 JUDGE MAY: We will be governed by the Rules

6 in that respect.

7 MR. NICE: As to the prior testimony of

8 accused, of course, the estimates I was able to give

9 you today reflected the statements that are

10 outstanding. Our understanding is that the registry

11 are dealing directly with the Defence. Indeed,

12 Mr. Smith will recall, when he had a problem in getting

13 material from the registry, I interceded on his behalf

14 with Mr. Jean-Jacques Heintz and I think achieved some

15 effect, although he made it clear to me that

16 transcripts were something with which I shouldn't be

17 involved, certainly if there is any question of

18 providing other than final-version transcripts. I also

19 understand that the tapes of transcripts in B/C/S are,

20 I believe, available, and so that is the solution to

21 that problem. It is not our duty to translate. It

22 would be, in a sense, absurd when tapes already exist

23 of the testimony in the language concerned. It would

24 be utterly absurd that the document come to us and then

25 to be retranslated. A waste of resources in the

Page 924

1 extreme. Thank you.

2 JUDGE MAY: In fact, we have gone beyond

3 break time. I think if we sat for another quarter of

4 an hour, we could dispose of all these matters.

5 Is that all right, looking at those behind

6 the darkened screens? Is that all right?

7 We will sit for another quarter of an hour.

8 Yes, Mr. Scott, what's the point, please?

9 MR. SCOTT: If it please the Court, Your

10 Honour, only if the Court wants a response on the

11 motion for release. I would assume you would want to

12 hear from the Defence first.

13 JUDGE MAY: Yes, certainly.

14 MR. SMITH: Thank you, Your Honour.

15 We have set out in our brief the legal

16 argument for the proposition that Rule 65 of the

17 Tribunal's Rules violates settled principles of

18 international law generally and of the Tribunal Statute

19 and it does this by shifting the burden to an accused

20 to demonstrate why he should not remain in detention

21 and by further requiring that there be exceptional

22 circumstances justifying his release which has been

23 interpreted to date by Trial Chambers but not, I might

24 say, by the Appeals Chamber, as a virtually irrebutable

25 presumption in favour of the accused remaining in

Page 925

1 detention, pre-trial detention, pending and during

2 trial.

3 I will not go over those arguments. They are

4 largely not responded to in the Prosecutor's brief.

5 They have chosen, rather, to argue that the Rule does

6 have a presumption and it must be enforced.

7 We have also argued that there are adequate

8 assurances that, if released, these defendants will

9 appear for trial and that neither would pose any danger

10 to a victim, witness, or other person, particularly

11 under the conditions that we have been at some pains to

12 suggest in our motion.

13 There are now, it seems to me, and I alluded

14 to this earlier, additional grounds constituting

15 exceptional circumstances that call for the immediate

16 pre-trial release of the defendants, and those are

17 bound up in the position the Defence now finds itself

18 in if it is to have both an expeditious trial and a

19 fair trial.

20 We have a tremendous volume of material to

21 work with and deal with our clients between now and the

22 time of trial and during trial, and despite the best

23 efforts of the detention centre, the working conditions

24 are quite difficult. It typically requires, by the

25 time one has gone to the detention centre and checked

Page 926

1 all the way in, an hour perhaps, sometimes more, to get

2 all the way in and get into work. One must do the same

3 thing going out. The hours are as fulsome as they're

4 able to provide but nonetheless necessarily

5 restrictive. One is not physically able to cart in all

6 of the documents in a case this large.

7 When you're trying to work in a hurry, to put

8 the case together, and the defendants in these cases,

9 having lived through the four years of history, are one

10 of the chief resources in the preparation of their own

11 defence, it is extremely difficult to make that process

12 work when you are in a hurry and when you are dealing

13 with large volumes of material; and I would argue, Your

14 Honours, that in addition to the other circumstances

15 argued in our motion, that the posture the Defence now

16 finds itself in constitutes exceptional circumstances

17 and that in order for there to be a fair trial after 18

18 months of detention, these defendants should be

19 released so that they may work with us in preparing

20 their defence prior to and during the trial, and that

21 that is essential to the fairness of the proceeding and

22 the situation in which Defence has now been put.

23 Thank you, Your Honour.

24 JUDGE MAY: Mr. Scott, briefly, please -- I'm

25 sorry, Mr. Kovacic.

Page 927

1 MR. KOVACIC: (Interpretation) Just very

2 briefly. I completely support the arguments set forth

3 by my learned colleague Smith. In fact, we worked on

4 the motion together. But let me just add one more

5 thing after we have heard today.

6 The last argument mentioned by my colleague

7 Smith, that is, the quality of the defence, in order to

8 improve the quality of preparations for trial, we need

9 our clients to work with us together; and today, when

10 we see the problems, that is, the problems that have

11 arisen in the last two weeks, I think that I would have

12 culled down to three pages what I find are the

13 significant points, which is we have a huge volume --

14 we work a lot in the detention unit, but there are

15 limits to what we can do. Progress has been made, but

16 I don't think that we can work as well as we can, and

17 we need to spend more and more time working as the

18 trial draws closer. Thank you.

19 MR. SCOTT: May it please the Court, Your

20 Honour, on this issue, we don't get into an argument

21 about what the international law, in terms of what it

22 should be, but apply the established law, the

23 established jurisprudence of this Tribunal, and as we

24 stated in our papers, the four requirements, that it is

25 the burden of proof of the Defence to meet on each of

Page 928

1 those, we submit, Your Honour, that the Defence,

2 neither of the accused has, in fact, met any of those

3 four requirements.

4 There has not been a showing of exceptional

5 circumstances, there has not been any satisfactory

6 assurance given that these accused would return and

7 would appear if released. I will cover some of these

8 in slightly more detail. There is no showing

9 whatsoever that these accused would not pose a threat

10 or danger to victims or witnesses; and finally, there

11 has been no showing that the host country is willing to

12 undertake responsibilities that would arise from these

13 accused being released from custody. If I'm not

14 mistaken, there's been no communication or response to

15 the Court from the host country.

16 Your Honour, what's really at stake here,

17 what underlies these arguments is much the same as what

18 has been raised throughout the course of the day, that

19 the new exceptional circumstance supposedly is the lack

20 of discovery. As Mr. Nice said earlier, it's extremely

21 important, and the Prosecution cannot possibly say this

22 loudly and firmly enough, to say that we believe, save

23 for the issues concerning translation, that we are

24 absolutely and have been absolutely in compliance with

25 the rules and orders of this Court. There has been no

Page 929

1 finding in this litigation to date, since the initial

2 appearance, either by Judge Jorda's Chamber or by this

3 Chamber, of any lack of compliance. So we simply again

4 must state that firmly, that if there is an exceptional

5 circumstance in this case, it is not based on any

6 non-compliance by the Prosecution.

7 In fact, Your Honour, I think this again goes

8 to a number of the issues raised to date -- to all of

9 Your Honours -- I submit to the Court this is one of

10 the most thoroughly discovered cases in any

11 jurisdiction at any time. These defendants and these

12 Defence lawyers have had the benefit of a number of

13 related cases which have been laid out on the public

14 record for now some years. Some of these issues have

15 now been tried two or three times. The very same

16 witnesses have now appeared and testified publicly two

17 or three times. It's a little bit, to use a more

18 common example, would be a little bit like a multiple

19 defendant bank robbery in our national jurisdictions

20 where the bank robbers were tried sequentially

21 concerning the same set of facts, and the third or

22 fourth defendant stands up and says, "I don't know

23 enough about what this case is about," when virtually

24 much of the same case has been tried several times

25 before --

Page 930

1 JUDGE MAY: Mr. Scott, I don't want to

2 interrupt you, but we have been over all this.

3 MR. SCOTT: I'm moving on, Your Honour, but I

4 think it is important -- it is not an exceptional

5 circumstance that there is simply a lack of knowledge

6 that would justify the release of these defendants at

7 this late day when we have a trial that is basically

8 one month away, that there are no exceptional

9 circumstances, not based upon lack of discovery or lack

10 of information which would justify the release.

11 Your Honour, we have grave concerns about the

12 witness issue. The Court knows, and we accept the

13 fact -- we believe that the Court knows that we mean in

14 good faith -- that we believe in good faith that these

15 are serious issues. We can represent to the Court, as

16 we have in the past, that there are many witnesses who,

17 if the Court will allow, are very close on the fence,

18 on the edge, whether they will come to The Hague to

19 testify or not. Some of them change their minds on a

20 daily basis. To release the accused from custody now

21 would send exactly the wrong message to a number of the

22 victims and witnesses who are still trying to decide

23 whether they will come to The Hague and testify or not.

24 Your Honour, there has again been no showing

25 of any sufficient conditions or accommodation of

Page 931

1 conditions that would assure the appearance of these

2 defendants. The fact that they initially appeared,

3 while everyone can take notice of that, I submit to the

4 Court that the calculations involved change over time,

5 and while they may have appeared at one time, that is

6 no assurance or reasoning that this close date, having

7 been provided now detailed discovery and detailed

8 knowledge of the Prosecution's witnesses and evidence,

9 that that same determination, the same coming back and

10 appearing for trial, there is no assurance whatsoever

11 that decision would be made.

12 We're close to trial. We should go forward,

13 Your Honour. The Prosecution has done everything it

14 can to move this case to trial. It would be, we

15 submit, the wrong decision to release the defendants at

16 this time. Thank you.

17 JUDGE MAY: Very briefly.

18 MR. SMITH: Very briefly, Your Honour.

19 This Trial Chamber, in our judgment, has

20 discretion to exercise under Rule 65 and should

21 exercise it. There is no Appeals Chamber decision, to

22 my knowledge, on how Rule 65 is to be interpreted, and

23 it should be interpreted to avoid illegality under

24 international law and in the way in which we suggest in

25 our briefs.

Page 932

1 As to host country consent, I know of no flat

2 obligation that the defendant must provide that before

3 the Court makes a decision. It seems to us not a

4 useful exercise to attempt to get host country decision

5 until there is a decision by the Trial Chamber that at

6 least would be in order.

7 Finally, Your Honour, this case now has been

8 thoroughly discovered but the question is when, even as

9 to the public material, as we have said over and over,

10 and if the OTP is in compliance as an institution with

11 the Rules here, and we believe they are not, then it

12 seems to me the difficulty that both the Trial Chamber

13 and the Defence find themselves in indicate that the

14 discovery rules need to be changed.

15 Thank you, Your Honour.

16 MR. KOVACIC: (Interpretation) Mr. President,

17 Your Honours, Mr. Smith just invoked something that I

18 would have brought up. There is a technical issue. I

19 think that today may be the last chance for me to

20 verify this.

21 We ask whether the accused could sit at the

22 same desk with us. It would really be of crucial

23 importance for our communication. This way we are

24 limited to just exchanging little notes on paper, and

25 this would really be of help. Thank you.

Page 933

1 JUDGE MAY: We will consider that and we will

2 consider the other motions.

3 I don't think there is any other matter left

4 except to invite your attention to the timetable as it

5 is set out. That, of course, is not set in stone, but

6 it is what we propose to follow.

7 Yes, Mr. Nice?

8 MR. NICE: I was only standing up so that you

9 could address at least someone if you need to.

10 JUDGE MAY: A courtesy. Very well. Well,

11 that timetable, as I was saying, we will endeavour to

12 follow, and we would invite the Prosecution to attempt

13 to, as I said earlier, bring its case, or the bulk of

14 it, by the recess. I know, of course, that it depends

15 on others; it doesn't depend on you alone. Perhaps

16 they might aim in that direction.

17 MR. NICE: Certainly shall. Thank you very

18 much for the timetable. It is extremely thoughtful of

19 you to spell it out so fully.

20 I do recall one issue that I mentioned in a

21 motion -- not issue, one point I raised in the motion

22 about procedure, it doesn't require anything like an

23 answer or anything of that sort today, but I did

24 inquire of the Chamber effectively whether it had a

25 view as to how it would like to deal with paper

Page 934

1 exhibits. I think I mentioned this. There are various

2 possibilities. The exhibit list is being prepared and

3 all these materials will come at the same time as the

4 pre-trial brief.

5 I have given an approximation, I think, of

6 the quantity of material in total that would be wholly

7 unmanageable on the bench. Various possibilities occur

8 to me, one of which is having a core bundle of

9 documents which grows.

10 JUDGE MAY: It might be a good idea to have a

11 core bundle. It would be helpful. As to the numbering

12 of the exhibits, it may be helpful if you start with a

13 numbering and probably we would follow it.

14 MR. NICE: So that we -- even if there are

15 gaps in the event -- thank you very much.

16 JUDGE MAY: We can discuss that with the

17 registry.

18 MR. NICE: Thank you very much.

19 JUDGE MAY: Twelfth of April.

20 --- Whereupon proceedings adjourned at

21 4.58 p.m., to be reconvened on Monday,

22 the 12th day of April, 1999, at

23 9.45 a.m.