Tribunal Criminal Tribunal for the Former Yugoslavia

Page 6924

1 Friday, 8 October 2004

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.10 a.m.

5 JUDGE ORIE: Good morning to everyone. We're in open session. I

6 would first like to ask Madam Registrar to call the case.

7 THE REGISTRAR: Case Number IT-00-39-T, The Prosecutor versus

8 Momcilo Krajisnik.

9 JUDGE ORIE: Thank you, Madam Registrar.

10 I think the Prosecution would like to know in which week we would

11 not be sitting in November. That will be the week starting the -- I think

12 the 13th of November is a Monday, if I'm not... 15th. Well, that week,

13 yes, 15th up to and including the 19th, the Friday, we'll not be sitting.

14 MR. HARMON: Thank you, Your Honour.

15 MR. STEWART: That's extremely helpful to know, Your Honour. Is

16 there any indication also at this stage of which week -- I think there's

17 one week the Trial Chamber is considering sitting in the afternoon rather

18 than the morning.

19 JUDGE ORIE: I think I already gave the programme about morning

20 and afternoon sessions. I haven't got it in my mind at this moment. But

21 I delivered a schedule for that.

22 MR. STEWART: Yes. If that's answered then, all sorts of things

23 happen when I'm not looking, royalty visits, schedules get sorted out. My

24 apologies for taking up time.

25 JUDGE ORIE: Yes. If there's no other issue at this moment to be

Page 6925

1 raised, we'll turn into closed session to continue the examination of the

2 present witness.

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11 Pages 6926-6997 redacted. Closed session.















Page 6998

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17 [Open session]

18 JUDGE ORIE: We're in open session again.

19 Ms. Loukas, I do understand that the issue to be raised is about

20 the scheduling of the testimony of the expert witness Ms. Hansen, which

21 was originally announced for, I think, the 21st of October. And I do

22 understand that there have been some communication between the parties,

23 Prosecution willing to delay -- to postpone, but not for such a time that

24 would be agreeable for the Defence.

25 Please proceed.

Page 6999

1 MS. LOUKAS: Yes, that's correct, Your Honour. And of course, in

2 the two or three minutes I have available what I can outline is this: The

3 Defence is simply not in a position to deal with Ms. Hansen's evidence at

4 this time. And the one week suggestion by the Prosecution is simply not

5 adequate to our purposes. The situation we find ourselves in, and this is

6 something we've made clear to the Trial Chamber on a number of occasions,

7 is that our would-be pre-trial preparation is occurring whilst the trial

8 proceeds. And it's an invidious, untenable position. But specifically in

9 relation to this witness, Your Honour, this is -- the evidence of this

10 particular expert is critical, would-be linkage evidence, it relates to

11 all the municipalities in the indictment. We're still in the process at

12 this stage of still churning through the 92 bis submissions in relation to

13 all the municipalities. And Your Honour, in those circumstances, I'd also

14 go to the extent of the material. And I actually have a memo in which I

15 can outline to Your Honours the extent of the material, but just as an

16 example, we got a new documents disclosure this week, Tuesday, the 5th of

17 October, a CD containing 69 documents, only two of the 69 documents have

18 English translations. We're dealing with, Your Honour, an expert's report

19 that refers to the -- refers to 372 different documents. We've only a

20 quarter of the way through printing this material. We are just simply,

21 Your Honour, not in a position to deal with this witness at this time.

22 I can appreciate the OTP wishes, and they have the right to run

23 their case in any way they and at what point they wish. But on the other

24 hand from the Defence perspective, it's in the interests of justice, Your

25 Honour, that the Defence has proper time for preparation. And we simply

Page 7000

1 do not. And Your Honour, we cannot deal with this witness at this point

2 in time. One last point in terms of my two or three minutes, is that the

3 particular witness in question that we're dealing with doesn't present at

4 the particular logistical exercises because the expert in question is

5 employed by the office.

6 JUDGE ORIE: Yes, the Chamber is aware of that.

7 Mr. Hannis, please respond. And if the flexibility would be

8 greater than appeared until now in the communications, the Chamber would

9 like to hear that.

10 MR. HANNIS: Thank you, Your Honour. We would like to try to work

11 with the Court and the Defence. However, I would note for Your Honour

12 that this expert report was filed in July 2002. There were 331 documents

13 mentioned in the 142 footnotes in that report that were disclosed at that

14 time. There has been separate disclosure of all those documents in

15 addition since then related to the various municipalities, and

16 Mr. Treanor. This witness was first noticed as being one that we wanted

17 to call on the 18th of October by an email that we sent to

18 Mr. De Hemptinne and the Defence on the 10th of September. I understand

19 there were 15 additional documents consisting of 30 pages that were

20 disclosed on the 1st of October. However, they are not new material, Your

21 Honour. They're more in the nature of documents that supplement the

22 original 331.

23 We could move the witness further on, but we have witnesses

24 scheduled, for example, in the 1st, 2nd, 3rd of November. We have

25 witnesses scheduled. They're planning to attend then. We might put them

Page 7001

1 the week after that. But -- whatever the Court's decision is, we ask that

2 we have that as soon as possible so we can make the logistical changes for

3 the other witnesses that would be replaced.

4 JUDGE ORIE: It's perhaps the wrong expression, but it one more

5 week your last offer, or is it...? I asked you about the flexibility.

6 And while you indicated there's still some flexibility, but you know

7 elastic at a certain moment breaks.

8 MR. HANNIS: Your Honour, looking at it, the following week we

9 have two witnesses tentatively scheduled, but they're not as firm. It

10 might be easier to put Ms. Hansen the week of November 8th, and keep the

11 witnesses we have currently scheduled for the 1st through the 5th of

12 November.

13 JUDGE ORIE: Ms. Loukas.

14 MS. LOUKAS: Very briefly, Your Honour, because I think we're

15 probably running out of tape at this point.

16 JUDGE ORIE: As I said, my information about the tape is not fully

17 correct. But this is again not an invitation.

18 MS. LOUKAS: Your Honour, just in relation to this, I can indicate

19 that taking on board the scheduling aspects that have been mentioned by

20 Mr. Hannis, it seems to be more appropriate that we deal with this

21 particular witness at a time when we don't have a scheduling difficulty

22 which I assume might be early next year, in which case we will have dealt

23 with all the 92 bis submissions. We will have been through all the

24 municipalities at that point, and it's more appropriate to call her at

25 that time.

Page 7002

1 JUDGE ORIE: Well, the Chamber will consider what to do.

2 Mr. Hannis, let me just very practically ask you. We'll not sit

3 in the week -- you said now it's possible the week of the 8th of November.

4 You know that we're not sitting in the week starting the 15th of November.

5 So a further postponement of one week would actually be two weeks. Would

6 that still be within your flexibility reach?

7 MR. HANNIS: I'm not sure, Your Honour. You're talking about

8 postponing then until the week of the 22nd?

9 JUDGE ORIE: Of November.

10 MR. HANNIS: Yes.

11 JUDGE ORIE: Yes, because we'll not sit in the week of the

12 13th -- it's the 15th until the 19th. That means that 22nd would then

13 be ...

14 MR. HANNIS: Your Honour, presently the difficulty with that week

15 is there's a witness that we've tentatively tried to schedule for that

16 week. That may be the only week we can get him in, in the near future.

17 JUDGE ORIE: And how many days would that witness take?

18 MR. HANNIS: May I consult with Mr. Harmon for a moment.

19 JUDGE ORIE: Yes, of course.

20 [Prosecution counsel confer]

21 MR. HANNIS: Your Honour, the witness we have proposed for that

22 Monday and Tuesday is scheduled to take perhaps six or eight hours on

23 direct. But we could start Ms. Hansen later in the week, Wednesday or

24 Thursday. Your Honour, I did want to raise one other concern in light of

25 Ms. Loukas's announcement in Court last week, I believe, or earlier this

Page 7003

1 week that she proposes to file a motion of withdrawal, we have a concern

2 about how that may impact on this witness.

3 JUDGE ORIE: Yes, of course, you'll understand that by postponing

4 we try to keep Ms. Loukas on board as long as possible. Mr. Hannis, of

5 course, as you may have noticed at that time, the Chamber has heard what

6 Ms. Loukas said. And the Chamber finds it not appropriate to address that

7 matter up to the moment that Ms. Loukas addresses the matter. So we'll

8 stay out of that.

9 Ms. Loukas, the second half of the week starting the 22nd of

10 November. I know it's not January, but ...

11 MS. LOUKAS: Well, Your Honour, I must say from my perspective,

12 it's quite clear that if we are to meet the 92 bis schedule set out in

13 meetings with the representatives from the Trial Chamber, it's very

14 difficult for me to see how we can deal with the current trial schedule at

15 the same time.

16 JUDGE ORIE: Yes. Would postponement -- well, specifically in

17 that period, of course not postpone the whole of the 92 bis, would that

18 contribute to -- well, let's say one or two municipalities, or

19 postponement of one week? Of course, I have to -- I'm aware that also the

20 92 bis, of course, is a matter of scheduling preparation for the Chamber.

21 Bun one thing for certain, your suggestion was to hear first all of the

22 municipalities, the Chamber is a bit concerned about hearing all of the

23 crime-base evidence and not to hear important evidence on the vertical

24 issues as well. But it's certainly hearing the expert evidence of

25 Ms. Hansen would certainly give a brief delay in further hearing

Page 7004

1 crime-base evidence. So perhaps we could consider to give you some

2 additional time at that moment to present your 92 bis positions.

3 MS. LOUKAS: Your Honour, I would just make one comment in

4 relation to Your Honour's observation, and that is this: My suggestion

5 was that it would be more appropriate to deal with this particular expert

6 witness's evidence once we had finished the 92 bis process as opposed to

7 necessarily hearing all the evidence from the various municipalities. And

8 if one looks at the current 92 bis process, the week that we have out of

9 court, next week, for example, I'm currently in the process of having all

10 the 92 bis material printed out for the next log which is at this stage

11 already 2.000 pages. And we have another series of that nature until the

12 end of December, which will take up all the time that we have out of the

13 trial schedule. I have to make that point clear, Your Honour, that we're

14 dealing with -- from the Defence perspective, a next to impossible

15 schedule in conjunction with the other matters that we have to take ...

16 JUDGE ORIE: Combining all of the 92 bis work and dealing with

17 Ms. Hansen would be a major problem for you.

18 MS. LOUKAS: Absolutely, Your Honour, I wish we were in the

19 luxurious position of having seven counsel as the Prosecution does.

20 JUDGE ORIE: Ms. Loukas, we have discussed that many times. That

21 counsel in court does not mean that counsel are available fulltime for

22 that case. So let's not reiterate that.

23 I do see that the Prosecution has showed some willingness to

24 further postpone, and I also notice that you're still not in a position

25 to, say, well, that is although not I wished, it is acceptable to me. If

Page 7005

1 that's the situation, the Chamber will have to give it some consideration.

2 MS. LOUKAS: If Your Honours please.

3 JUDGE ORIE: We'll adjourn until 1.00.

4 --- Recess taken at 12.39 p.m.

5 --- On resuming at 1.07 p.m.

6 JUDGE ORIE: I come back to the issue that has been discussed in

7 the presence of Mr. Hannis just before the break, that is, the timing of

8 the testimony of the expert witness, Ms. Hansen. From what I understand

9 that the Prosecution now takes the position that it could be postponed

10 until approximately 25th, 26th of November to start with. The Chamber

11 intends to follow approximately, so that whenever it would be the 25th of

12 or the 26th, or the beginning of the next week which would bring us early

13 in December to hear the testimony of Ms. Hansen at that time, but before

14 giving a final decision, the Chamber would very much during the next week,

15 when we're not sitting, the Chamber would very much like the parties to

16 sit together and to rediscuss the 92 bis schedule because 92 bis was one

17 of the -- I'm not saying it would be totally overthrown, but at least to

18 give some relief to the Defence in view of the 92 bis schedule. And at

19 the same time, the Chamber invites the Prosecution, having heard the

20 number and not being fully aware yet of what it all contains, but having

21 heard the number of the 92 bis material, to invite the Prosecution to

22 review to what extent it's all really needed. I remember one case -- one

23 92 bis moment in this case where 1.050 pages were finally reduced to 6.

24 Of course, that was a very dramatic reduction, and I'm not saying that you

25 always can take 1 per cent and that would be enough.

Page 7006

1 So therefore, the parties are invited to -- I wouldn't say

2 renegotiate, but at least to see whether any adaptation could be made on

3 the 92 bis schedule as agreed upon until now, preferably under the

4 guidance of Mr. De Hemptinne because he was involved, or perhaps since he

5 might not be there next week, Mr. Harhoff, and at the same time the

6 Prosecution is invited to see to what extent all the huge number of 92 bis

7 pages are really necessary, and I -- then especially, but I do not know

8 whether there are any transcripts involved in it, because that's what

9 usually takes the huge number of pages, rather than the statements.

10 So it is all a bit related, so we do not give a final decision at

11 this moment. But certainly, we'll not -- I mean, the flexibility shown by

12 the Prosecution, will not say no, we would like to hear that evidence

13 earlier, although the Chamber wants to have a fair balance in horizontal

14 and vertical aspects and not to wait until the very end of the case to

15 hear any vertical evidence, and having heard meanwhile all the evidence on

16 all the municipalities. But whether it will be the second half of the

17 last week of November or the first week of December is still something to

18 be seen and could be part of the discussions perhaps between the parties

19 as well. But we'll give a decision if there's no agreement once the

20 Chamber restarts sitting on the 21st of October it is, I think. 22nd.

21 Then we turn into closed session again to continue the examination

22 of the present witness.

23 [Closed session]

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9 [Open session]

10 JUDGE ORIE: We are in open session again. Having concluded the

11 testimony of the witness, the Chamber adjourns until the 18th of October,

12 quarter past 2.00 in Courtroom III.

13 --- Whereupon the hearing adjourned at 1.52 p.m.,

14 to be reconvened on Monday, the 18th day of

15 October, 2004, at 2.15 p.m.