1 Tuesday, 15 November 2005

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.23 p.m.

5 JUDGE ORIE: Good afternoon to everyone.

6 Mr. Registrar, would you please call the case.

7 THE REGISTRAR: Good afternoon, Your Honours. This is case number

8 IT-00-39-T, the Prosecutor versus Momcilo Krajisnik. Thank you.

9 JUDGE ORIE: Thank you, Mr. Registrar.

10 I do understand that there are no witnesses available to be

11 examined today. Nevertheless, the Chamber wanted to have a hearing today

12 on some practical matters. But before we pay further attention to

13 scheduling in the future, I'd first like to be informed, to the extent

14 that it is known, why the witness, as I understood, was not allowed to

15 board an aeroplane yesterday. Is there any information about it?

16 MR. STEWART: Very limited to us, Your Honour. We certainly have

17 made inquiries. Inquiries were made yesterday while I was on my way back

18 from Belgrade and reported to me yesterday evening by Mr. Josse when I

19 arrived. It appears, the best I know, the best we know, Your Honour, is

20 that the witness appears to have two passports. We only can speculate as

21 to why, then, he was refused boarding. It was something to do with the

22 passport. As far as we were aware, Your Honour, he had a valid passport

23 and a valid visa. So it did come as a surprise and a shock to the Defence

24 that he wasn't able to board, because as far as we knew, right up to

25 yesterday, he did have all the necessary documentation, plus, in fact, the

1 clearance to go with us to see Mr. Krajisnik at the UNDU. So at our end,

2 Your Honour, we believed everything was in order. Everything has been in

3 order at our end and -- well, that's as much as we know. We've been in

4 constant touch with the Victims and Witness Section.

5 JUDGE ORIE: I do understand that there is someone from the

6 witness and victims section available to see whether we at least could ask

7 whether there's any additional information available.

8 Madam Usher, could you please invite -- I don't know who it is

9 from the ...

10 MR. STEWART: Your Honour, in fact, we had suggested earlier today

11 that somebody from the Victims and Witness Section should come, so we're

12 very happy for that, Your Honour, because we're all in the same position.

13 The more information we have, the better we're going to feel about it.

14 JUDGE ORIE: Good afternoon.

15 MS. VAN LEE: Good afternoon.

16 JUDGE ORIE: I understand you're --

17 MS. VAN LEE: I'm from the Witness and Victims Section.

18 JUDGE ORIE: Yes. We were informed that there were some problems

19 with the witness boarding an aeroplane, and as a result we can't examine

20 that witness today.

21 MS. VAN LEE: Yes.

22 JUDGE ORIE: Do you have any further information as to what

23 actually -- what exactly happened?

24 MS. VAN LEE: Yeah. Well, the latest information --

25 MR. STEWART: Would Your Honour excuse me. Would it be good

1 practice for this lady - we know who she is - to identify herself for the

2 record?

3 JUDGE ORIE: I think, as a matter of fact, that I --

4 MR. STEWART: It doesn't appear on the transcript, Your Honour.

5 JUDGE ORIE: Oh, it doesn't appear. Oh, yes. I was -- I started

6 saying that I understand that you're Ms. or Mrs. Van Lee from the Victims

7 and Witness Section, Ms. Ingrid Van Lee, is that correct?

8 MS. VAN LEE: Yes, exactly.

9 JUDGE ORIE: Written V-a-n, L --

10 MS. VAN LEE: L-e-e.

11 JUDGE ORIE: Yes.

12 So I started doing that, and I was more or less -- you then

13 explained to me that you were from the Witness and Victims Section.

14 Ms. Van Lee, yes, you were interrupted when you started explaining

15 about what you know about it.

16 MS. VAN LEE: Okay. Well, the latest that we understood is that

17 this witness has two passports, a normal passport and a semi-diplomatic

18 passport, and the semi-diplomatic passport needs a stamp if he is making a

19 trip. This was not in the passport. So this afternoon he went to the

20 ministry or a minister. They're taking care of it, and by the end of

21 today it should be okay, and he should be able to travel tomorrow. So the

22 visa was there. The passport is valid, but it needs a stamp to be able to

23 travel.

24 JUDGE ORIE: Yes. So then he'll arrive tomorrow?

25 MS. VAN LEE: Tomorrow on the flight leaving Sarajevo 1530 and

1 arriving in Amsterdam 1925.

2 JUDGE ORIE: Yes. Was this the first time that this kind of a

3 thing happened or -- I mean, did it come as a surprise to you or ...

4 MS. VAN LEE: Yes. I've never seen a situation like this.

5 Because I think that the witness thought that the passport was valid. It

6 is valid. It just requires a stamp. And yes, that's something that he

7 has to do. I mean, we don't deal with that.

8 JUDGE ORIE: It's still not entirely clear what the second kind of

9 passport is, but it seems to be there and --

10 MS. VAN LEE: Well, tomorrow, if he arrives in the Netherlands, we

11 will collect all the documents and all the information and see what

12 exactly happened. This is the information that we have at the moment.

13 JUDGE ORIE: Yes.

14 MS. VAN LEE: And this is what we understand.

15 JUDGE ORIE: Do the parties have any further questions on the

16 matter?

17 MR. STEWART: Your Honour, no, because that -- that's consistent

18 with and tells us helpfully a little more than we had understood. And of

19 course Your Honour won't be surprised if this came as a surprise and an

20 unprecedented event to the Victims and Witness Section with all their

21 experiences, certainly came as exactly that to us on the Defence side.

22 Your Honour, there had been a previous problem with this witness

23 anyway. I don't know whether Your Honours are concerned about that. But

24 he's --

25 JUDGE ORIE: First of all, let's see -- is the problem one with

1 which Ms. Van Lee should be confronted?

2 MR. STEWART: I have no intention of confronting Ms. Van Lee, Your

3 Honour.

4 JUDGE ORIE: No, no, no. You don't understand what I mean. If

5 it's -- is it of any use for her to be present when this is discussed? If

6 so, we'll invite her to stay. If not, I'll allow her to go.

7 MR. STEWART: Well, Your Honour, it's a small, short point, but it

8 directly -- the Victims and Witness Section --

9 JUDGE ORIE: Please proceed.

10 MR. STEWART: -- we had knowledge of it. Your Honour, it's only

11 this, that the reason why the witness was only coming yesterday anyway was

12 a previous problem.

13 This is one of those little instances where once things start to

14 go wrong, they just carry on going wrong. He had unexpectedly -- he had

15 turned up at the Dutch embassy in Sarajevo on Friday and it was closed.

16 That apparently -- what happened was the victims and witnesses -- I'm

17 reading now, Your Honour. The witness is required on Monday, as we know,

18 in Court. Our Defence team, or we asked the Victims and Witness Section

19 whether it would be an idea to go to the Dutch embassy in Sarajevo on the

20 Friday, and we hoped his visa would be ready. The section, Victims and

21 Witness Section, contacted the Ministry of Foreign Affairs to inform them

22 about this, and they assured them that they would try their best to have

23 the visa ready by Friday, which they did. They sent a message to the

24 Dutch embassy in Sarajevo, but late on Thursday evening, after everybody

25 had gone home from the Dutch embassy in Sarajevo, it was information

1 received saying the Dutch embassy in Sarajevo will be closed on the

2 Friday.

3 So it was just some unfortunate accident or miscommunication there

4 that it couldn't all be sorted out on Friday for that reason. So that was

5 why the witness was only coming yesterday anyway, as we understood it, and

6 then we had this unexpected problem.

7 So that's the history, Your Honour. It's been a chapter of

8 unexpected difficulties, and absolutely -- we have absolutely no

9 criticism. We've had maximum cooperation from the Victims and Witness

10 Section on this, and we've tried to offer them the same in return.

11 JUDGE ORIE: Yes. It's not entirely clear what we should learn

12 from this, apart from perhaps to check carefully whether the embassy is

13 open or not.

14 MR. STEWART: I think in future we'll ask witnesses how many

15 passports they've got, Your Honour. But this was such a new thing to us.

16 But I suppose we can add it to the list of simple checks we would make so

17 that we make sure that this problem doesn't arise again.

18 JUDGE ORIE: I got the impression last week that it was a rather

19 late application as well. So perhaps we could learn that as well.

20 Ms. Van Lee, I don't know whether that's correct information or

21 not, that the application for your assistance came rather late.

22 MS. VAN LEE: Yes. Well, normally, if we receive a witness

23 information sheet about a witness who is due to travel, we need five

24 working days, or the ministry needs five working days for a visa

25 application. So we received the information about this witness on

1 Wednesday, so the earliest normally would be that we collect the visa on

2 this Wednesday, which is tomorrow.

3 JUDGE ORIE: Yes. So --

4 MS. VAN LEE: We called the ministry, explained the situation that

5 it's an urgent matter, and they helped us and said: Okay. It's ready on

6 Monday. Because that was still too late. We tried Friday. But, yes, it

7 was just explained.

8 MR. STEWART: That's entirely correct, Your Honour. Of course,

9 that's -- what Ms. Van Lee says is entirely correct.

10 JUDGE ORIE: Yes. Then, Ms. Van Lee, I'd like to thank you very

11 much for providing us with the information we needed, and you're free to

12 go.

13 MS. VAN LEE: Okay. Thank you.

14 JUDGE ORIE: Next issue I'd like to discuss is scheduling long

15 term. The Chamber has several times invited the Defence to provide the

16 Chamber with a long-term scheduling suggestion, especially in relation to

17 extension of time, when extension of time was sought by the Defence.

18 Since we had not received that yet, the Chamber took the

19 initiative to further discuss the matter among ourselves and also to

20 invite the Defence - I had a meeting with Mr. Stewart - to see whether we

21 could make any progress in this respect.

22 After our meeting, Mr. Stewart had a few meetings with one of the

23 legal officers of the Chamber, and this has resulted in a tentative idea

24 on scheduling, which it's most important that I would have -- that the

25 Chamber is willing to consider an extension of time resulting in

1 completing the presentation of the Defence case on the 28th of April,

2 2006. That was what was on our mind.

3 The proposals or the suggestions discussed between Defence counsel

4 and the legal officer are, however, still rather incomplete. There's a

5 lot still left open. Nevertheless, the Chamber is willing to consider to

6 continue on the basis of that suggestion, if there is a commitment on the

7 Defence side to complete the presentation of its case by that date, and of

8 course there's nothing that is certain in this life.

9 The Chamber has received the reports on what the Defence had in

10 mind, and I just mention a few matters. We'd hear the testimony of some

11 witnesses until the Friday, the 18th of November; Monday, the 21st of

12 November would be a non-sitting day; we'd hear, on the 22nd and the 23rd,

13 another witness; on Thursday, the 24th of November, until Friday, the

14 2nd of December, we would not sit. The Defence would then prepare the

15 next batch of witnesses. Witnesses would be heard throughout the next two

16 weeks, until the winter recess, including one witness already specified

17 for the 5th and the 6th of December. It's not a matter of scheduling, but

18 from December the 19th until Friday, the 6th of January, we'd have the

19 winter recess, Christmas recess.

20 Monday, the 9th of January, that's St. Momcilo's Day, would be a

21 non-sitting day. Witnesses to be heard from the 10th until the 13th of

22 January, that's at least what was suggested, but I draw the attention of

23 the Defence to the fact that the 10th of January is a UN holiday, which

24 would mean that we would not start until the 11th of January.

25 Then on the Friday, the 13th of January, the Defence would

1 announce whether it would call any experts and who those experts would be.

2 From Monday, the 16th of January, until Friday, the 20th of

3 January, these would be non-sitting days. Preparation of Mr. Krajisnik's

4 testimony is scheduled for that time, as far as the Defence is concerned.

5 And then Monday, the 23rd of January, the testimony of Mr. Krajisnik would

6 begin and runs, as was suggested, at least until the end of January.

7 Further, it says that by Tuesday, the 28th of February, the expert

8 reports, if any, were to be filed.

9 That's the main information I received. As I said before, the

10 Chamber is willing to consider, although not yet to determine, whether we

11 could proceed on the basis of this suggested schedule. The reason why we

12 can't make any determination yet is that there are -- there's too much

13 still open. But nevertheless, even where this is the case, we're willing

14 to consider, although we'll keep then a close eye on the developments,

15 we'd be willing to consider that the Defence be allowed to proceed on the

16 basis of the data as we have them in front of us now.

17 The Chamber is also aware that of course there are certainly some

18 unexpected matters, such as the Chamber has found on the witness list

19 witnesses that are at large. So it's of course highly uncertain whether

20 these witnesses will be available or not. So if looking at the

21 scheduling, the Chamber at this moment assumes that those witnesses that

22 are at large are not available. The same, of course, is not true for

23 witnesses that are detained abroad, because they could be transported to

24 The Hague, and there's no uncertainty in that.

25 There are other uncertain matters, such as how much time the

1 Chamber itself would take, for example, to put questions to the accused,

2 if he appears as a witness. It may well be that the Chamber would invite

3 the parties to call certain witnesses, or call them, these witnesses

4 themselves, and that's of course not included in this scheduling. The

5 scheduling on which the Chamber invites the Defence to commit itself is

6 scheduling on the basis of the ordinary experience, in this case, time a

7 witness takes, usually 60 per cent cross-examination, these kind of

8 matters, but then to be completed by the 28th of April.

9 If there would be such a commitment, the Chamber, as I said

10 before, is seriously considering to depart from the 26th of April

11 Scheduling Order, as it still stands, and it may be clear to the Defence

12 that once the remaining parts are filled in in a satisfactory way, that

13 the Chamber, by taking this course, creates an expectation that the

14 Chamber will follow such a scheduling. The only problem is that the

15 Chamber, not having seen further details, is not able to make a final

16 determination on it at this moment.

17 So before we continue to discuss such a new scheduling, I would

18 like to hear from -- first of all, from the Defence whether there's any

19 comments or any commitment, any observations to be made, and of course I

20 would also like to hear from the Prosecution whether there's any --

21 whether there are any objections. I've given the data as they were made

22 available to the Chamber by the Defence during the meetings with

23 Mr. Zahar.

24 Mr. Stewart.

25 MR. STEWART: Thank you, Your Honour.

1 May I just clarify one thing? I think it may have been a slip of

2 the tongue, but I've got it at page 8, line 20, or a couple of lines above

3 that. Your Honour says: "And then Monday, the 23rd of January, the

4 testimony of Mr. Krajisnik would begin and runs, as was suggested, at

5 least until the end of January."

6 JUDGE ORIE: That must have been a mistake. I would have in mind

7 the testimony to start at the 23rd of January, after five days of

8 non-sitting for preparation of the examination.

9 MR. STEWART: Well, I wondered whether in fact Your Honour had

10 intended to say until the end of February.

11 JUDGE ORIE: No. It was on my ...

12 MR. STEWART: Your Honour was indicating that it would begin --

13 JUDGE ORIE: I added "at least." The report we received, and runs

14 at least until the end of January. And I think I emphasised "at least."

15 MR. STEWART: Well, the only reason I wondered, Your Honour, was

16 because we were simply asking ourselves whether it was conceivable that

17 Mr. Krajisnik's evidence, which isn't -- in our submission, could finish

18 in anything like that time. That's why we wondered whether it was a slip

19 of the tongue.

20 JUDGE ORIE: But I -- even if this was a mistake, I think that the

21 conversations with Mr. Zahar were aiming at a kind of an agreement on

22 completing the case some seven weeks later than initially ordered by the

23 Chamber. And then whether it would be Mr. Krajisnik who would -- whether

24 it would be part of -- whether it would be the whole of February that

25 would be taken by his testimony does not change the starting point from

1 the conversations. I mean, you have spoken with Mr. Zahar about the

2 possibility of the 28th of April as the date on which the Defence would

3 complete the presentation of its case, isn't it?

4 MR. STEWART: That's correct, Your Honour. I've spoken with

5 Mr. Zahar in the sense that that date came from the Trial Chamber to me.

6 JUDGE ORIE: Well --

7 MR. STEWART: Your Honour, I simply wish to -- we are in public

8 and most importantly, as well, Mr. Krajisnik is listening, and one of the

9 important reasons why I needed to clarify what Your Honour was saying

10 there is that Your Honour was saying that Mr. Krajisnik's evidence should

11 run from the 23rd of January at least until the end of January, I can

12 assure Your Honour that would be the very first question Mr. Krajisnik

13 would ask me as I stepped through the door of the conference room at the

14 UNDU if I hadn't clarified that.

15 JUDGE ORIE: Mr. Stewart, that's not the vital importance for what

16 we are discussing right now. If you would want Mr. Krajisnik to testify

17 until the 5th of April and then have only 23 days left for the other

18 witnesses, or whether you would finish by the 3rd of February or by the

19 4th of March, that's not the issue. Because the Trial Chamber, and it may

20 have been clear from your conversations with Mr. Zahar as well, the Trial

21 Chamber takes the position that within the time allotted to the Defence,

22 it should present the defence it finds best. And whether you would take

23 two weeks off to prepare for Mr. Krajisnik's testimony or one week off, or

24 whether you would, within certain limits, of course, if you would say: I

25 would take another two weeks to prepare for the next ten witnesses, that's

1 not something on which the Chamber intends to impose anything on the

2 Defence.

3 So to that extent, even if there is a mistake, it's -- in a

4 report, then it doesn't change the situation as far as the Chamber is

5 concerned.

6 MR. STEWART: Your Honour, that's a very helpful clarification,

7 because it would have been a matter that Mr. Krajisnik would have been

8 bound to raise with me straight away. So that does help. Thank you very

9 much for that.

10 A couple of other points, Your Honour, are these: That the very

11 first few sentences of what Your Honour said this afternoon, I would,

12 please, wish it to be understood by everybody who is interested that it is

13 not a case of several invitations having been issued to the Defence to

14 come up with a long-term scheduling proposal and thus simply not bothering

15 or in some obstructive or non-cooperative way failing to produce such a

16 proposal. That could be the way that that was understood and that is not

17 the position, Your Honour.

18 Your Honour knows the position for quite a long time has been that

19 it has, until these recent discussions, it was made consistently crystal

20 clear to the Defence that there would be, other than in exceptional

21 circumstances, there was no tolerance and no margin for tolerance of an

22 extension of the schedule beyond the end of April, and it was simply

23 pointless for us to offer a long-term schedule within that box, because we

24 couldn't do it and we were not in a position to offer anything

25 constructive or helpful, Your Honour. So whenever the Defence is able to

1 offer something constructive, I assure Your Honour that we will do that.

2 And so far as our commitment is concerned, Your Honour has --

3 always has had, and Your Honours always will have, the Defence team

4 commitment to take no longer over this trial and take no longer over the

5 presentation of Mr. Krajisnik's defence than we, in our judgement,

6 consider necessary, excepting always, as Your Honours have quite properly

7 reminded everybody, that we don't decide that in the end. But we do

8 decide, in the first place, what we consider necessary and therefore what

9 we should propose and what we should ask for and how we should proceed.

10 Ultimately we're subject to the rulings of the Court. But, Your

11 Honours, there is a distinction. The Defence doesn't even at this point,

12 isn't even in a position to assess whether we can say that that leads to a

13 commitment that we will be able, according to the proper criteria for

14 presentation of a defence, to complete the Defence case by that date. But

15 what we can unreservedly say, Your Honour, is that we will do our

16 professional best to do exactly that.

17 JUDGE ORIE: Mr. Stewart, let me be quite clear. I do understand

18 that you'll do your professional best to finish the case as early as

19 possible. If you want the Chamber to issue a new Scheduling Order, after

20 having met several times with the legal officer, after having, I think,

21 got a clear impression that, upon your earlier request for additional

22 time, that the Chamber is willing to consider to give some additional

23 time, but not as a starting point - and let me be as clear as I can be -

24 not as a starting point for January's discussion on further extensions,

25 February's discussion on further extensions, March's discussion on further

1 extensions, May discussions on further extensions. We just, if we want to

2 take this decision, which has a lot of implications, you pointed it

3 before, you wondered whether this Chamber would be governed by the

4 completion strategy rather than by its own conscience to provide a fair

5 trial to the accused. I clearly explained to you that this Chamber is

6 governed -- is guided by the second principle, not by the first one.

7 It may be clear to you by just seriously considering granting an

8 additional seven weeks that we are willing to take such a decision if we

9 are satisfied that we can proceed on this basis.

10 The Defence commitment is, of course, subject to tsunamis, air

11 companies on strike for two weeks. That all goes without saying. Before

12 we give a decision, we just want to know whether you consider it

13 reasonable, possible, and whether you consider it something to which the

14 Defence commits itself, within the limits of what always are the limits

15 for such commitments, that is, the unexpected not taken into

16 consideration, but the expected to be considered before making such a

17 commitment, whether the Defence commits itself, yes or no. If it's there,

18 then we could further speak about the matter on when the gaps should

19 perhaps be filled in, these kind of matters. We could further look at

20 what it actually would mean. But on the basis of the Defence telling the

21 Chamber that it will do its utmost best to finish this case as early as

22 possible, within the professional responsibilities the Defence has, is not

23 a basis to continue conversations on the matter.

24 MR. STEWART: The difficulty the Defence faces is this, Your

25 Honour, and please do not get the impression that we are being

1 obstructive. We are simply doing the best we can with the knowledge we

2 have. And the knowledge we have, and this is a level -- it's a difficulty

3 we face of uncertainty below tsunamis and acts of God and so on. It's a

4 difficulty inherent in the Defence case at the moment, and I can

5 illustrate is this way, Your Honour.

6 I've been in Belgrade for the last four days. I have seen five

7 witnesses, or prospective witnesses, during that period. Not one of those

8 have I seen before, and I'm nearly 100 per cent confident, Your Honour,

9 that neither my present co-counsel, nor my previous co-counsel, had had an

10 opportunity to see them. The material on which we are operating with

11 those witnesses comes from a very long time ago and was extremely

12 incomplete.

13 That experience on its own, and that matches very closely with

14 Mr. Josse's experience on two recent trips to Bosnia and Herzegovina, is

15 that the lack of opportunity for us to have been able to see these people

16 before means that our ability to assess which witnesses we need, the value

17 of their evidence, how long they would be, is severely hampered. And

18 without our being able to form a clearer view of which witnesses are

19 genuinely able to give relevant evidence in this case and what that

20 evidence will be and how long it should take, it is at the moment, Your

21 Honour, just not possible for us to form anything approaching a reliable

22 assessment of whether all the evidence which should be placed before the

23 Trial Chamber on this case can be placed in a competent, efficient manner

24 in that time. And that is our position, Your Honour.

25 JUDGE ORIE: Yes, Mr. Stewart, what has been at all the use of

1 these conversations about seven additional weeks, I mean, if finally you

2 say seven additional weeks is more than nothing, but the Defence will

3 never commit itself to it, then it was wasted time.

4 MR. STEWART: Your Honour, I was --

5 JUDGE ORIE: At least from the legal officer.

6 MR. STEWART: Well, Your Honour, it was -- it is the legal

7 officer's job, with respect, to engage in such discussions, and it is part

8 of my responsibility, which is time that I cannot then spend on preparing

9 the case. We all gave our time on it, and Your Honour gave your time to

10 it. I didn't give my time to those two meetings, I didn't -- in addition

11 to the one with yourself, Your Honour, I didn't give my time to those

12 meetings with the idea that it should be cosmetic or it should be wasted.

13 I wasn't playing some sort of game, Your Honour. In the first

14 place, the initial meetings, the meeting with Your Honour and the first

15 meeting with the legal officer from the Trial Chamber, were to inform me,

16 essentially, as to what it was that the Trial Chamber was now

17 contemplating. And Your Honour, I did make it clear, and that was

18 acknowledged throughout those discussions, that we were proceeding to see

19 what, and particularly in the short term as well, Your Honour, but what

20 might be done within those limits which were being proposed by the Trial

21 Chamber. I did, Your Honour, make it consistently clear that I reserved

22 my position and that I did not consider that this was enough. And I have

23 said that consistently, Your Honour.

24 But when I say I consider it's not enough, I can put it this way,

25 Your Honour: I'm not able to say -- I'll slightly rephrase that. I'm not

1 able to say with any confidence whether it will be enough. And since I

2 cannot say with any confidence whether it will be enough, I cannot give a

3 commitment beyond the commitment.

4 But Your Honour, it might -- who knows. It might be enough.

5 We're not saying it won't be. But I am saying that we on the Defence side

6 cannot say. Because if one applies the criterion which we suggest must

7 ultimately be the criterion, that whatever guidelines and whatever

8 percentage allocations are customarily -- and there is some variation

9 anyway for trials in this institution, whatever guidelines are adopted for

10 allocation of Defence cases, the simple criterion that provided there is

11 properly relevant evidence which could assist Mr. Krajisnik's defence on

12 these very serious charges, that evidence must be heard, is a criterion

13 which we suggest is incontrovertible, and we will proceed as quickly as we

14 can.

15 But Your Honour, please, consistently with not proceeding so

16 quickly that we then do not have a chance to present that evidence

17 properly. That's one of the difficulties. We do need time always to make

18 sure that evidence is properly presented. We will proceed as quickly as

19 we can. We will cut out irrelevant evidence. We will professionally

20 assess, as conscientiously as we can, the relevance of evidence. But

21 provided that we have witnesses ready to come and give relevant evidence

22 which can make any worthwhile addition to the Defence case on these

23 charges, then our submission, Your Honour, is that that evidence must be

24 heard, and it must be heard according to a schedule and according to a

25 timetable which allows it to be presented properly.

1 That's entirely consistent with our professional commitment, Your

2 Honour. That's the position. Maybe, according to that criterion, if we

3 proceed at the proper pace, maybe we will be able to finish by the 20th of

4 April. Maybe we'll be able to finish earlier. Maybe we won't. That is

5 the Defence's position, Your Honour. But we will --

6 JUDGE ORIE: It's clear. The position is quite clear. I'll --

7 [Trial Chamber confers]

8 JUDGE ORIE: The Chamber will withdraw and consider whether it's

9 of any use at all to spend at this moment more time on scheduling in open

10 court, whether the position of the Defence is that it will do its utmost

11 best, and it's well possible that at the date the Chamber has in mind, the

12 Defence case, the presentation of the Defence case, may have been

13 completed, but just as good that it could not be completed by that date.

14 We'll consider whether it's of any use at all to continue this

15 hearing and to go into any further details or any further discussions on

16 the matter. The parties are invited to remain stand-by for such time as

17 we'll indicate either we come back in the Court or we'll let the parties

18 know when we will continue.

19 But in that respect, I've got one request. Your next witness

20 could be called when? Is that tomorrow, a quarter past 2.00?

21 MR. STEWART: Yes. Your Honour, the intention is to call the

22 witness at -- we're sitting at 2.15 tomorrow afternoon.

23 JUDGE ORIE: Yes.

24 MR. STEWART: So that Your Honour knows, the order of witnesses is

25 reversed so -- witness not coming.

1 JUDGE ORIE: The witness which has not arrived we do not expect

2 the Defence to call such a witness.

3 MR. STEWART: Your Honour, the Defence would also want to address

4 the short-term situation over the next two or three weeks.

5 JUDGE ORIE: We're first withdrawing in order to consider whether

6 we'll continue the debate on the long-term, and then of course we could

7 pay attention to the short-term.

8 MR. STEWART: I understand that. The reason I mention it is

9 because Your Honours had indicated, I think, a possibility that you might

10 not come back into court at all. So I'm just indicating that we would

11 also wish to address the short-term position and that -- well, that would,

12 with respect, require to be done here in Mr. Krajisnik's presence.

13 JUDGE ORIE: Yes, or we do it tomorrow. I do understand that --

14 MR. STEWART: It would be helpful to do it today, Your Honour, but

15 only helpful to me, because then, well, I don't have to come to Court,

16 Your Honour. But that's a small matter in the overall scale, I'm quite

17 sure, Your Honour.

18 JUDGE ORIE: I do understand that you'll not be available --

19 you're not in Court tomorrow?

20 MR. STEWART: I'm available, but we try to use our resources by us

21 both not being here at the same time.

22 JUDGE ORIE: Yes. Thank you. We'll adjourn.

23 --- Break taken at 3.07 p.m.

24 --- On resuming at 3.59 p.m.

25 JUDGE ORIE: The Chamber has considered the present situation. It

1 doesn't consider it of any use at this moment to continue to discuss

2 scheduling issues in open court. The Chamber will give a brief statement

3 tomorrow at the beginning of the hearing, a statement not in the beginning

4 of a debate. So it's just a matter of listening and reading at that

5 moment.

6 And we have a few other procedural issues to be discussed at this

7 moment, the first one being scheduling, short term. Mr. Stewart.

8 MR. STEWART: Yes. Your Honour, it's this: That apart from

9 anything else, there was a certain amount of discussion about the

10 short-term position, and Your Honour summarised some of that earlier. The

11 position is that whatever else, the Defence does request, and in our

12 submission really does need, the scheduling that was indicated in the

13 short term, in what Your Honour summarised. And there's also -- there is

14 a slight change of situation, of course, because of the witness who had

15 the problems getting on the flight yesterday. It was expected that we

16 would finish both those witnesses in the course of this week. But there

17 is now a risk, I don't know whether it will come about, but there is a

18 risk that the second of the witnesses to be heard this week would spill

19 over the weekend. We've informed him of that, simply from a personal

20 point of view, that that's a risk for him. That's a relatively minor

21 adjustment, which might be necessary.

22 But, Your Honour, the position is this: That among the things

23 that we do on the Defence side, without going into detail, is that last

24 night, when I got back from Belgrade, Mr. Josse and I, as the only two

25 counsel on the Defence side, we sat down together, together and

1 separately, but together, and looked at what each of us would have to do

2 as a minimum, over the next two weeks and then over the next three weeks.

3 And, Your Honour, in my case, and of course we consider what each of us

4 can do, and which -- who can take what off the other and so on.

5 But in my case, Your Honour, the position is that the only way in

6 which I can, and I've checked this with Mr. Josse, so that I'm not just

7 kidding myself as to what's required, and we do that reciprocally.

8 JUDGE ORIE: Why not come with a suggestion, Mr. Stewart? There's

9 a lot of explanation, but I've got no idea where it goes to.

10 MR. STEWART: It goes to where I started. If Your Honour is going

11 to say yes, the scheduling can go in accordance with what Your Honour

12 summarised, then I need say no more. I was rather assuming that Your

13 Honour might be inviting some justification. But I've got no more to say,

14 Your Honour.

15 JUDGE ORIE: Let's try to make it simple. Tomorrow --

16 MR. STEWART: Yes.

17 JUDGE ORIE: You'll call Mr. Kasagic.

18 MR. STEWART: Yes.

19 JUDGE ORIE: Okay. That will take us until, in chief?

20 MR. STEWART: Well, Mr. Josse is dealing with him, Your Honour. I

21 don't know the absolute up-to-date position, but I expect he'll be most of

22 tomorrow. That's as I had understood it and that's confirmed.

23 JUDGE ORIE: Most of tomorrow?

24 MR. STEWART: Most of tomorrow. Again, it's an estimate --

25 JUDGE ORIE: Cross-examination of Mr. Kasagic?

1 MR. TIEGER: Your Honour, as we indicated yesterday to the Court

2 officer when we found out for the first time the scheduling, we indicated

3 that at that time we thought we would not be prepared to begin

4 cross-examination until Friday. We're continuing to accelerate our

5 preparations. That remains our position as of today. We will work as

6 hard as we can to make it otherwise.

7 Incidentally, we keep -- maybe we're receiving different and

8 varying estimates of time, but the last estimate of time we had for

9 Mr. Kasagic, the best of my recollection, was six hours, so --

10 JUDGE ORIE: I'm only glad to hear that. Most of tomorrow would

11 be taken by Mr. Kasagic. Okay. Let's see you either are able to prepare

12 for cross-examination to start on Thursday, but although you expect that

13 you might not be able to do that. If not, could any start be -- of

14 course, usually we prefer to have cross-examination to follow immediately

15 after the examination-in-chief. On the other hand, if we are sitting here

16 on Thursday just idle, would there be any possibility for the Defence

17 to -- the next witness is expected to arrive tomorrow evening. Would

18 there be any chance to examine him in chief on Thursday in the afternoon?

19 MR. STEWART: Well, I just immediately discussed that with

20 Mr. Josse. The answer is there is a chance, Your Honour. But Your Honour

21 will appreciate, he arrives tomorrow evening. Our experience with last

22 night's witness was the risk of them not arriving on that flight and on a

23 later flight is appreciable. That only leaves the morning to include

24 going out to the UNDU to Mr. Krajisnik and all other proofing. Because

25 he's not a witness who has ever been seen --

1 JUDGE ORIE: There is a chance, but it's not for certain.

2 MR. STEWART: I'm sorry. I beg your pardon. He has personally

3 been seen by Mr. Josse.

4 Your Honour, there's a chance. We can't say more than that.

5 JUDGE ORIE: There's a chance, but it's not for certain. Of

6 course, the Chamber would prefer to have the cross-examination

7 immediately. But if we can't do it, Mr. Tieger, we would then -- if

8 Mr. Banduka -- how much time would Mr. Banduka take?

9 MR. STEWART: Again, Your Honour, our best estimate at the moment

10 is about a day, but Mr. Josse, who is doing him, doesn't feel especially

11 confident about that, not having spoken to him.

12 I should say in relation to Mr. Kasagic, Your Honour, it looks,

13 based on the meeting this morning with him, it just looks as if he's a

14 witness that may go quicker and more efficiently than would have been

15 assumed, as just an average. That's all. He just -- it looks as if he

16 may deal with questions in a way that would shorten the estimate.

17 JUDGE ORIE: Yes. If the Prosecution would find itself in a

18 position that the Defence would start the examination-in-chief of

19 Mr. Banduka, would you then prefer to first cross-examine Mr. Kasagic,

20 which would be perhaps preferable for him, because he's waiting here, or

21 would you prefer to first cross-examine then Mr. Banduka and then have

22 Mr. Kasagic wait until we are ready with Mr. Banduka?

23 Yes.

24 MR. TIEGER: Your Honour, it seems to me at that point it's not so

25 much a matter of preference, that is, attempting to restore the original

1 Scheduling Order, but in light of the considerations the Court just

2 mentioned, it would seem more appropriate to then begin with Mr. Kasagic's

3 cross-examination. We do believe we could be -- we indicated we thought

4 we'd be ready by Friday. That's when it would -- that's when the first

5 cross-examination we assume would begin if both examinations in chief

6 preceded first. So for the reasons the Court indicated, we think that's

7 perfectly appropriate.

8 JUDGE ORIE: Yes. And then for next week, Mr. Stewart. Next week

9 we have a witness, and I take it that protective measures will be sought

10 for that witness.

11 MR. STEWART: Yes, indeed, Your Honour.

12 JUDGE ORIE: When could you start with that witness?

13 [Defence counsel confer]

14 MR. STEWART: Yes. Your Honour, the position -- before we had the

15 complication with these other witnesses, the position was that he is

16 arriving on Monday. But, Your Honour, he's -- for various reasons, he's

17 not flying here. He's coming a longer route. He's arriving on -- well,

18 not longer, but longer in time. He's arriving on Monday. We had thought

19 we would start him on Tuesday. There isn't, I think, fundamentally a

20 reason why that shouldn't happen, even though the other witnesses are

21 continuing over on to the Monday. That's still -- again, Your Honour,

22 it's a bit more difficult. It's not with complete confidence that we feel

23 that we would be ready for Tuesday. But that is the target, Your Honour,

24 and it's still very much the hope.

25 JUDGE ORIE: And on Monday we could, if need be, continue the

1 cross-examination of Mr. Banduka then. Friday Kasagic, and then on Monday

2 cross-examination of Mr. Banduka?

3 MR. TIEGER: Yes, that would be correct.

4 MR. STEWART: The difficulty is this, Your Honour: That we had

5 been operating on the footing that then the Monday would be available to

6 prepare the witness for -- the protective witness Tuesday. If the Monday

7 then is a court day, that puts -- where there was already considerable

8 pressure to be ready in time, that puts that much extra pressure on, hence

9 our lack of confidence and assurance about that timetable.

10 [Defence counsel confer]

11 MR. STEWART: Your Honour, it may be that because we're really

12 talking about a half day or a court day lost for preparation, but if the

13 Court were able to switch the schedule on Tuesday so that we were in the

14 afternoon rather than the morning, we would certainly then use that

15 morning. The real difficulty for us at the moment, Your Honour, comes at

16 being in court on Monday and then that witness who has just arrived, then

17 starting first thing on Tuesday, which is really not -- I believe Your

18 Honours might be beginning to see that isn't really practical.

19 JUDGE ORIE: Would it be any problem if we -- of course we would

20 need -- it needs quite a lot of preparation, re-scheduling for

21 interpreters teams, technicians, et cetera. Sometimes you need the

22 assistance of other Trial Chambers.

23 Would it for the Prosecution be a problem?

24 MR. HARMON: It would not be, Your Honour.

25 JUDGE ORIE: We'll see what we can do. So we would then start

1 with the protected witness on Tuesday.

2 And how much time would that witness take?

3 MR. STEWART: Your Honour, we assessed him on the basis that

4 overall, two or three days. But we consider no more than three days is --

5 JUDGE ORIE: In chief?

6 MR. STEWART: Altogether, Your Honour.

7 JUDGE ORIE: Altogether.

8 MR. STEWART: In his case, we really tried to just assess it for

9 scheduling purposes on the basis of how long all together he'd take.

10 JUDGE ORIE: That would bring us until Thursday, the 24th.

11 MR. STEWART: Yes, Your Honour. And then the suggestion that we

12 had been making and the request we had been making was then we would break

13 until Monday, the -- whatever day of the week it is. Monday, the 5th.

14 It's a 5th, isn't it? Monday, the 5th of December.

15 JUDGE ORIE: It was part of the suggested long-time scheduling.

16 We'll consider whether that's --

17 MR. STEWART: May I comment on that, Your Honour?

18 JUDGE ORIE: No, you may not.

19 MR. STEWART: Your Honour, it's an important submission.

20 JUDGE ORIE: We'll consider the matter. We have considered the

21 matter in terms of long-time scheduling. We'll still have to consider it

22 in the context of short-time scheduling.

23 MR. STEWART: Your Honour, I have a relevant submission to make on

24 that point.

25 JUDGE ORIE: If you can make it briefly, please do so.

1 MR. STEWART: It's this, Your Honour: That if it was considered

2 that that, as apparently it was, if it was considered that it was

3 reasonable for that time to be available, then the difficulties about the

4 long-term scheduling don't alter that position. The Defence only wants

5 not to sit in court when we need not to sit in court. And nothing -- no

6 difficulties and no differences over the long-term scheduling have altered

7 that position. And we assume also the Trial Chamber would only have been

8 willing to allow a break over those days if it also felt that that was

9 reasonably necessary. And again, that cannot have been changed by any of

10 these longer-term scheduling difficulties. The position is the same, Your

11 Honour. If that was a reasonable break, it remains a reasonable and

12 necessary break.

13 JUDGE ORIE: Yes. I heard you, and that's the position --

14 MR. STEWART: May I also mention this, Your Honour, that --

15 JUDGE ORIE: I don't want a full debate on the matter.

16 MR. STEWART: No. You're getting a full debate, Your Honour.

17 You're getting legitimate submissions from the Defence.

18 It's part of my planning that Mr. Josse should go to Bosnia. If

19 he doesn't go to Bosnia that week we are piling up more and more of

20 precisely the difficulties which we've indicated to the Trial Chamber. If

21 we cannot go as counsel reasonably regularly now to Belgrade or to Bosnia

22 now to interview witnesses, we are faced with more and more and more

23 problems when these witnesses arrive cold, as far as counsel are

24 concerned, in The Hague. And Your Honour, it is simply -- it is a

25 short-term apparent superficial saving which is simply piling up enormous

1 problems and making the position worse and worse and worse in both the

2 medium and the long term.

3 JUDGE ORIE: We'll consider the matter. So then your request

4 would be not to sit from the 28th of November up to and including the

5 2nd of December.

6 MR. STEWART: Yes, Your Honour.

7 JUDGE ORIE: May I take it that if that request would be denied,

8 would you have any witnesses?

9 MR. STEWART: Your Honour, if Your Honour -- well, Your Honour, if

10 Your Honours tell us that we have to be in court on such-and-such a day,

11 then, Your Honour, we will do everything we reasonably can to make sure

12 that we get witnesses here on those days. Your Honour, we will do that.

13 But I cannot -- we can't do that and be getting Mr. Krajisnik

14 ready for his evidence. That's a serious problem in my scheduling and

15 timetable. There are enormous underlying difficulties about such a

16 contemplated procedure. But, Your Honour, we will loyally get witnesses.

17 If we're directed to be in court, we will be in court.

18 JUDGE ORIE: Yes. Thank you for that answer. Then if we're

19 talking about relatively short-term scheduling, how many witnesses did you

20 have in mind for the week starting on the 5th of December and the week the

21 12th of December? I'm not asking about names, but how many?

22 MR. STEWART: We don't know, Your Honour, because we aim to fill

23 those weeks. But whether we know which witness we plan to bring on

24 Monday, the 5th of December, we have that witness identified, and

25 preparations are being made in the usual way.

1 JUDGE ORIE: But do you have -- well, of course if you've got no

2 idea on whether this would be one-day witnesses, three-day witnesses,

3 five-day witnesses, it's no use to further ask. But I just wanted to have

4 an impression on how many witnesses we might be able to hear before the

5 Christmas recess.

6 MR. STEWART: Your Honour, our aim is to fill as tightly as we

7 can, to fill those weeks. Your Honour, I, for example, I have to -- one

8 of my tasks as well, there's not much point in my having spent 20-plus

9 hours interviewing witnesses in Belgrade over the weekend unless I get an

10 opportunity to review the product of those interviews. If I don't have

11 that chance, then it's a -- well, it's a nearly wasted trip, in fact. I'd

12 like to assess and see whether one of those -- in many ways, Your Honour,

13 we prefer to have a small number of witnesses -- heavier witnesses in a

14 sense. We prefer not to have lots and lots of very short witnesses during

15 that two weeks. But, well, Your Honour knows the practical difficulties

16 as well as the question of assessing and preparing in time --

17 JUDGE ORIE: So when -- Mr. Stewart, when I asked you that I'd

18 like to have an impression of how many witnesses, the answer is you can't

19 give me that impression.

20 MR. STEWART: But we will fill it as fully as we can.

21 JUDGE ORIE: Yes, of course. That's enough of an answer.

22 Then is there any other short-term scheduling issue to be

23 discussed? If not --

24 MR. STEWART: No, Your Honour. The basic point was made at the

25 beginning of this phase of submission by us, that we just need time to do

1 all the imminent tasks.

2 JUDGE ORIE: Yes. A simple no would have done, Mr. Stewart.

3 MR. STEWART: I was just trying to indicate the reason, Your

4 Honour.

5 JUDGE ORIE: Then we have one other matter. Translations have

6 been received on many Defence exhibits, although not on all, but on the

7 10th of November, I do understand that at least for D70 and quite a number

8 of other documents an English translation has been received. Could the

9 Prosecution give the Chamber an indication when it would be in a position

10 to determine whether or not there's any objection against admission of

11 these documents?

12 MR. HARMON: Your Honour, next Monday we would be in a position to

13 indicate to the Court.

14 JUDGE ORIE: Yes. From what I see, it is D70, D72, 73, 74, 75,

15 76, 77, not 78, from what I understand, and then 79, not 80 yet. Then we

16 have D81 up to and including 82G. H there is no translation yet. 82I,

17 still waiting for a translation. Same for D83. D84 is partly translated,

18 from what I understand. D85, a translation has been received. 86 as

19 well, 87 as well.

20 So that would be the list of admission issues pending, awaiting a

21 translation.

22 Mr. Registrar, if I made any mistake, would you please -- well, it

23 was on the basis of your preparations that I could be as precise as I now

24 turn out to have been.

25 Any other matter?

1 MR. HARMON: No, Your Honour.

2 MR. STEWART: No, thank you, Your Honour.

3 JUDGE ORIE: Then we'll adjourn until tomorrow, quarter past 2.00,

4 same courtroom.

5 --- Whereupon the hearing adjourned at 4.23 p.m.,

6 to be reconvened on Wednesday, the 16th day of

7 November, 2005, at 2.15 p.m.

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