1. 1 Friday, 18th September 1998

    2 (The accused entered court)

    3 (Open session)

    4 --- Upon commencing at 9.35 a.m.

    5 THE REGISTRAR: Case number IT-95-16-T, the

    6 Prosecutor versus Zoran Kupreskic, Mirjan Kupreskic,

    7 Vlatko Kupreskic, Drago Josipovic, Dragan Papic and

    8 Vladimir Santic also know as Vlado.

    9 JUDGE CASSESE: Good morning. So I suggest

    10 that we start with the Defence. I wonder whether

    11 Counsel Slokovic-Glumac has anything to add to what she

    12 said before on this particular item of -- we intend to

    13 discuss today.

    14 MS. SLOKOVIC-GLUMAC: Mr. President, I

    15 presented my point of view more or less. That is to

    16 say that we need a ruling on your part for the

    17 above-mentioned reasons. I would appreciate it though

    18 if the Prosecution would present their point of view

    19 and then perhaps we could give our comments in relation

    20 to what the Prosecutor will say, that is. Thank you.

    21 JUDGE CASSESE: Thank you. Yes.

    22 Mr. Terrier.

    23 MR. TERRIER: Good morning, Your Honours.

    24 I will try to present, during this hearing, the opinion

    25 of the Office of the Prosecutor. I would first like to

  2. 1 say that the Office of the Prosecutor in this

    2 discussion in this courtroom would like to be

    3 constructive. We also wish to support completely the

    4 Tribunal's efforts in order to improve the procedures

    5 that we use, so that the Tribunal and this particular

    6 Trial Chamber can carry out the mission which it has

    7 received from the Community of Nations.

    8 We also wish to support the efforts of the

    9 Tribunal in order to define it to strengthen -- the

    10 road that will open out to a new path. And when I say

    11 "new path," we consider the fact that the national

    12 experiences and the national laws all are, of course,

    13 references, but none of them can be considered as a

    14 model, none of them can be considered as something that

    15 we must follow.

    16 In this respect, I would like to make the

    17 comment that all criminal procedural systems in the

    18 world are systems which seek balance. Fragile balance,

    19 that is. Systems of balance between interests that are

    20 often contradictory, the interests of punishing crimes,

    21 the interests of society and the defence of the

    22 individual.

    23 It is always very sensitive and difficult,

    24 and sometimes even dangerous, to look only at one

    25 aspect of the systems and not pay attention to the

  3. 1 whole thing. In many countries in Continental Europe,

    2 and I'm thinking about France, of course, as a

    3 reference in the spirit that I have just mentioned, the

    4 Prosecutor, in fact, is prohibited from contacting a

    5 witness. However, before the public trial, an entire

    6 procedure has taken place during which evidence was

    7 sought out, was gathered, was accumulated and

    8 evaluated, and this, pursuant to extremely precise

    9 rules, always within the framework of an inter parte

    10 hearing.

    11 In this European country, the public trial is

    12 only a moment when one can confirm or disprove the

    13 evidence that has been presented, and in Continental

    14 Law, to which I am referring, that is in some of the

    15 countries, of course, I'm not making totally general

    16 statements, the witnesses called to the hearing, first

    17 of all, have always been heard according to specific

    18 rules provided for by the law, and according to

    19 well-defined forms either by a judge who has taken an

    20 oath or by a police officer, and at the hearing the

    21 same witness is not the witness of a party, but rather

    22 the witness of the Tribunal was first questioned by the

    23 Presiding Judge and then only after that by the parties

    24 to the trial. Therefore, in our work and in our

    25 efforts to make comparisons and to confront one system

  4. 1 to the other, we must be extremely careful.

    2 In this Tribunal, we all have had different

    3 experiences. Our different backgrounds must live

    4 together, they must take wealth from one another, but

    5 we also need to compare them and to confront them one

    6 with the next.

    7 I will not conceal from the Tribunal that

    8 yesterday there was a discussion at the Office of the

    9 Prosecutor about this question which has arisen, and we

    10 very -- we were clear to see a dividing line between

    11 those who see that the preparation of a witness is

    12 something strange, something bizarre, which might even

    13 be disturbing under certain circumstances, and there

    14 were others who felt that it's as a normal way to work

    15 in the pursuit of justice.

    16 Despite this confrontation of ideas, certain

    17 convergences of ideas did appear and I would like to

    18 explain them to you.

    19 Before I go into the substance, I would like

    20 to make two preliminary comments.

    21 The first is that to date in this Tribunal

    22 and in the various Trial Chambers of this Tribunal, no

    23 general restriction has been imposed as to access by

    24 one of the parties to the witness that it has called.

    25 No restrictions have been imposed, and no major

  5. 1 incident has resulted from that. By that I don't mean

    2 that there have been absolutely no changes that have

    3 taken place. Of course, the effort to improve the

    4 procedures must be a constant one, but by that I mean

    5 that the effort is not invoked or was not the result of

    6 any particular incident. It has never been

    7 established, never even alleged, that one party, in

    8 this case, for example, the Prosecution, took advantage

    9 of its position in order to lead a witness into saying

    10 things that would not be consistent with the truth.

    11 I am saying this -- or with all due respect

    12 to you, I say this because under the circumstances in

    13 which we find ourselves at this moment of the trial,

    14 after the statements that were made by

    15 Ms. Slokovic-Glumac, I would like an amendment to the

    16 Rules be made even if she's completely justified in

    17 what she's saying in principle, but not that it be

    18 considered to be a criticism made against the

    19 representatives of the Prosecution in this case.

    20 And the incidents which arose the day before

    21 yesterday with Captain Stevens, if we can talk about it

    22 as an incident, called forth some reactions from the

    23 Defence, and in its reactions I saw kind of an effect

    24 that was trying to produce in the courtroom to

    25 discredit the Prosecution, at least to embarrass the

  6. 1 Prosecution. But Captain Stevens very clearly

    2 explained under what circumstances he had come to

    3 identify the person which he did, which had then been

    4 contested by the Defence. I, therefore, wish to say to

    5 all the representatives -- on behalf of all the

    6 representatives of the Prosecution, that they have not

    7 committed any mistakes or any acts which would give

    8 rise to a criticism from the Tribunal, and if a reform

    9 is necessary, in no case is it linked or should it be

    10 linked to that specific incident.

    11 Mr. President, the day before yesterday you

    12 heard reassuring words in this respect, and I permit

    13 myself to say that working together with you and all

    14 three of you has reiterated its -- will reiterate these

    15 words in the decision that it's going to take.

    16 The second comment which I want to make is

    17 the following: What has been envisaged, what has been

    18 discussed today, has to do with a significant reform,

    19 an evolution and development of the Rules of Procedure

    20 and Evidence, both as regards practical terms and also

    21 theory.

    22 Mr. President, you referred to Rule 90G of

    23 the Rules of Procedure and Evidence, and its provisions

    24 do state that the Tribunal has all the powers to

    25 control the mode and order of interrogating witnesses

  7. 1 and presenting evidence. And in addition, as you

    2 underscored, it introduces the idea, which, in my

    3 opinion, is very important, that the purpose of the

    4 Tribunal is to establish the truth. Therefore, on this

    5 legal basis, the Tribunal is perfectly entitled to

    6 limit or to prohibit either generally within this case

    7 or in a case-by-case basis, contacts between the

    8 different parties and the witnesses called.

    9 But what I am taking the liberty of pleading

    10 here before you, is that it appears to us that such an

    11 important development and evolution of the Rules should

    12 be of interest to all the trials that are pending

    13 before this Tribunal and all the Trial Chambers here.

    14 And I simply permit myself to express the desire that

    15 if this Trial Chamber takes a decision in this respect,

    16 the judges of this Tribunal, during their Plenary

    17 Sessions, may speak about this and then come up with an

    18 amendment to the Rules of Procedure and Evidence,

    19 considering the importance of this issue.

    20 I now come to the substance of the question.

    21 First of all, I note that there was never a question,

    22 and it did not seem to me that the spirit in which your

    23 Tribunal has given rise to this question is the

    24 following: There is no question of prohibiting

    25 preparation of a witness by the party that called him

  8. 1 or her. This Tribunal, and I think all of us, are

    2 perfectly aware of fact that in the procedural case in

    3 which we find ourselves, this is absolutely necessary.

    4 If we do not do that, the witnesses who

    5 appear before Your Honours, in many cases, perhaps not

    6 all but in many cases, that is more than 50 -- at least

    7 more than 50 would have been incapable to present or to

    8 give a cohesive testimony that would be of use to the

    9 Court. And the most frequent consequences are the

    10 following: The Trial Chamber would have to devote much

    11 greater amount of time to hear each of the witnesses,

    12 and the judgment would take much longer, so much longer

    13 that it would not be tolerable.

    14 The second consequence would be that the

    15 hearing of each of the witnesses would probably consist

    16 of reminding the witness of the previous statements

    17 that he had made in writing, and asking him to think up

    18 as many of the -- to find as many things as he could

    19 remember in order to present a cohesive statement.

    20 Therefore, the profile of such is not being

    21 contested in this procedure, but if I am insisting on

    22 it as it is very important to me, is that any Tribunal,

    23 this one, like all tribunals, in my opinion, is faced

    24 with two dangers, the threats of two dangers. The

    25 Tribunal is threatened with the possibility of hearing

  9. 1 a witness who is not telling the truth, but in

    2 addition, the Tribunal is also threatened with another

    3 danger just as serious as the first, that is not

    4 hearing a witness who is stating the truth, and not

    5 hearing that witness because he is stating the truth

    6 poorly, that he is speaking in a fragile manner, with

    7 hesitations, with weakness. And it is a fact that

    8 before all criminal courts, no matter what the country,

    9 memories must be expressed as much as possible even if

    10 they date back five or six years. They must be

    11 expressed as much as possible, clearly, cohesively and

    12 concisely.

    13 Preparation of the witness is a means of

    14 avoiding or warding off those dangers. It is not

    15 always a sufficient means, but in any case, this is

    16 what, in my opinion, is what justifies it.

    17 I am also aware, perhaps because of my

    18 professional background, my national origins, I'm also

    19 aware that the preparation of a witness and context of

    20 party with that witness may lead to abuses which also

    21 have dangers. It could lead one party, even

    22 involuntarily, to alter the sincerity of a witness. Of

    23 course, I'm speaking in general terms.

    24 Even since the beginning of this trial, and

    25 with all the witnesses that we have called to have

  10. 1 appeared before Your Honours, I have noted that all of

    2 them had a clear understanding of what they had to say,

    3 having -- once they had taken an oath. All of these

    4 witnesses, in fact, clearly understand that they are

    5 testifying under oath that, they must tell the truth,

    6 and even if that truth is disappointing for the party

    7 that has called them. I want to emphasise that point,

    8 even if that truth is disappointing. And we remind

    9 each witness, of course, what his or her obligations

    10 are.

    11 But in general terms, abuse is possible,

    12 abuse may be suspected. In order to prevent this type

    13 of abuse, in order to prevent the suspicion, we have an

    14 initial means, and that is the obligations of ethics,

    15 professional ethics. We have professional ethics, and

    16 I myself am a judge in my own country. I have worked

    17 as a judge, I was a Prosecutor, I have obligations that

    18 derive from ethical behaviour and its requirements. I

    19 do not ask for the conviction of an accused if I do not

    20 believe that person is guilty. But I have cases, I

    21 have worked for the acquittal of a witness if I did

    22 nothing that I would be in a position to demonstrate

    23 his guilt.

    24 Therefore, these are ethical concepts, and

    25 I'm referring to a case law of the European Court of

  11. 1 Human Rights. That court said that impartiality of the

    2 court must not only be real, but must, in addition,

    3 must be apparent. This means that the suspicion

    4 itself, even if it is not based on fact, is forbidden,

    5 it must be prevented. The applicable rules must have,

    6 as their object, the need to dissipate suspicion. And

    7 in the same way, I think that the fairness of the

    8 Prosecutor in this trial before the Trial Chamber, and

    9 before justice in general, not only must be real, but

    10 it is also apparent and must be beyond suspicion.

    11 The operating rules of this Tribunal must be

    12 defined in such a way that good intentions and clear

    13 conscience are, of course, protected, but these rules

    14 must also prevent any suspicion from being raised

    15 against anything done by one of the parties. Of

    16 course, in this case, it is the Prosecution, in

    17 another, it would be the Defence. For this reason, in

    18 my opinion, an evolution either can or must be

    19 considered as regards the particular procedures that

    20 your Tribunal has raised.

    21 What might this evolution be? If preparation

    22 of the witness is not, in and of itself, discussed,

    23 challenged, if its effectiveness is recognised, I

    24 believe that this evolution could be one of the two

    25 following things that I'm going to propose: In the

  12. 1 first place, we could consider that at the very moment

    2 that the witness takes his oath before the Trial

    3 Chamber, there can no longer be any contact between

    4 that witness and the party that called him in. That is

    5 my first idea.

    6 The second possibility is that this

    7 prohibition against contacting the witness would come

    8 after the end of the examination-in-chief, and

    9 throughout that examination-in-chief, contacts would

    10 remain possible between the witness and the party which

    11 has called him to appear. In practice, of course, when

    12 the examination-in-chief is sufficiently long, in order

    13 to go beyond any interruptions that might take place in

    14 the hearing itself, there might be distinctions made.

    15 We would prefer the second solution. That means to

    16 forbid contact or to restrict contact between the party

    17 and the witness from the time that the

    18 examination-in-chief has been completed.

    19 I think, first of all, that we cannot

    20 consider that we are in a system where one witness is

    21 the witness of the party that has called him in, and

    22 that he is the witness of the Tribunal. The oath is a

    23 guarantee in our procedures and does not modify the

    24 status of that witness, even if he remains the witness

    25 of the calling party throughout the length of the

  13. 1 examination-in-chief.

    2 The second consideration in order to support

    3 this position of the Office of the Prosecutor, all the

    4 reasons that justify the preparation of the witness

    5 appear, to me, to remain fully valid throughout the

    6 time of the examination-in-chief. Therefore, we see no

    7 advantage or any theoretical or practical reason which

    8 would justify prohibiting contact with the witness once

    9 the oath has been taken. But afterwards, one could say

    10 that the situation or the status of the witness has

    11 been substantially modified, because his testimony is

    12 subjected to criticism and subjected to the

    13 cross-examination and subjected, as well, to the

    14 questions that the Judges ask.

    15 Therefore, we believe that if your Trial

    16 Chamber decides to restrict contacts between a party

    17 and his witness, the restriction should come in only

    18 after the examination-in-chief has been completed and

    19 must continue until the witness has been excused by the

    20 Tribunal.

    21 The second question has to do with knowing

    22 whether this prohibition has to be an absolute one or

    23 whether contacts must be permitted. The second

    24 possibility, of course, would raise the question as to

    25 what guarantees would be put in place.

  14. 1 What justifies one party wanting to maintain

    2 or to go back to contacts with his witness after the

    3 examination-in-chief? In my opinion, there are two

    4 types of considerations that come into play and they

    5 are different. First of all, it may happen that the

    6 party which has called in a witness after the

    7 examination-in-chief feels the need to clarify certain

    8 points of the testimony in the interests of justice, in

    9 the interests of truth that is being sought by the

    10 Trial Chamber, and in the interests of the missions

    11 that have been confided to it.

    12 The second justification for continuing

    13 contacts is the need to ensure that some witnesses, not

    14 all, of course, that some have some kind of

    15 psychological support which sometimes appears to be

    16 absolutely necessary. These are two types of different

    17 considerations.

    18 As regards the first justification, it seems

    19 to me that a party must be able, in certain cases, at

    20 least, to recontact his witness after the end of the

    21 examination-in-chief. I believe that the same reasons

    22 that justify the preparation of the witness to clarify,

    23 to improve information for the Tribunal, to work better

    24 and be more effective in reaching the truth, these same

    25 reasons also justify the continued contacts.

  15. 1 But because the witness is no longer only, at

    2 that time, the witness of one of the parties in this

    3 case, the Prosecution or the Defence, but that in some

    4 ways he has become the Tribunal's witness, guarantees

    5 must be put into place. One could imagine several

    6 types of guarantees. One could imagine that the

    7 contacts be recorded. We could imagine that a

    8 representative of one of the other parties, that is,

    9 the Defence or the Prosecution, be invited to be

    10 present during the discussions.

    11 Mr. President, the other day you mentioned

    12 the possibility that the Tribunal would be invited to

    13 grant its authorisation under certain circumstances to

    14 those contacts taking place. I wonder about those

    15 guarantees, particularly, as regards the question of

    16 authorisation. And I wonder whether the authorisation

    17 would not also imply a need for justifications and

    18 would not cause delays or possibilities that the

    19 decision, whatever it might be, would be challenged.

    20 And especially, it does not seem to me, to be a way of

    21 definitely ruling out the possibility that the very

    22 nature of these contacts, what is happening within the

    23 witness room, despite the authorisation which had been

    24 granted, might still be challenged or questioned.

    25 Therefore, it seems to me that if this is a

  16. 1 principle of the Tribunal which is being defined,

    2 complications may arise, as well as incidents. I would

    3 allow myself to suggest another way of working, another

    4 approach, which would be that the Trial Chamber, if a

    5 contact should take place, would mandate somebody to be

    6 present. And this individual, should there be an

    7 incident, and the Tribunal considers that this, in

    8 fact, has happened, could report on what he has seen or

    9 heard during the discussions in the witness room, the

    10 discussions between the calling party and the witness.

    11 Which leads me to this idea, and that is, the day

    12 before yesterday, Judge Mumba, based on her

    13 professional experience, mentioned that there could be

    14 a third party intervention, and I agree that it might

    15 be useful and effective for ensuring guarantees.

    16 The second consideration which justifies

    17 contacts between a party and a witness is the question

    18 of support that we have to guarantee to those

    19 witnesses. Before this International Tribunal, which

    20 sits in The Hague and which is responsible for judging

    21 crimes committed in the territory of the former

    22 Yugoslavia, many of the witnesses find themselves in

    23 extremely special circumstances. I am speaking about

    24 the witnesses from Bosnia. All those from

    25 Bosnia-Herzegovina, almost all of them, are also

  17. 1 victims, victims of the acts about which they are

    2 testifying. All of them have lost either a member of

    3 their family, several members of their family, or

    4 property.

    5 In certain procedural systems, and this is

    6 only a reference that I'm giving now, the victims have

    7 very extensive rights equivalent to those of the

    8 accused. In this Tribunal, this is not the case. It

    9 is not the choice that was made, but at least the

    10 Statute and the Rules of Procedures and Evidence give

    11 to the witness a certain number of rights, guarantees,

    12 and, of course, at least the insurance that there will

    13 be support and help. I refer to Articles 22 of the

    14 Statute and Rule 75 of the Rules of Procedures and

    15 Evidence.

    16 In addition, before this Tribunal, I do know

    17 that the Judges that you are, you are perfectly aware

    18 of this, before this Tribunal, the witnesses from

    19 Bosnia-Herzegovina find themselves in a psychological

    20 situation which is extremely difficult. As I have

    21 said, all of them were victims of the acts about which

    22 they are testifying, but in addition to that

    23 difficulty, that is, the tragedy that they have lived

    24 through, is the fact that they are now 1.500 kilometres

    25 from their homes. They are separated from their

  18. 1 families. There is the obstacle of language. There is

    2 the unawareness or lack of understanding of the

    3 institution in which they are working and, of course,

    4 the perspective of having to go back, having to report

    5 on what happened, answer for what happened, always in

    6 an atmosphere which is precarious and difficult.

    7 Therefore, they do all need moral and

    8 emotional support which is extended throughout their

    9 stay here within the walls of this Tribunal and, more

    10 generally, in The Hague. I beg the Tribunal to

    11 understand that when we have these contacts, we also

    12 give them that support. The Tribunal will know

    13 immediately, and that I can accept, that we are not the

    14 only ones here to support the witness. There is the

    15 Victims and Witnesses Unit, whose role is essential

    16 within the framework of this Tribunal, who is also in a

    17 position to attend to that matter.

    18 As things stand today, however, if the

    19 presence of the members of the Victims and Witnesses

    20 Unit is effective, that presence is not always

    21 permanent within this Tribunal. What a witness needs,

    22 first and foremost during a break of a hearing after

    23 the examination-in-chief, is to get echoes, to get

    24 feedback about what happened to him here in the

    25 courtroom. He either wants criticism or he wants

  19. 1 encouragement, but always support. In order to

    2 reassure him, to encourage him, to support him, one has

    3 to have been present at the hearing. One has to have

    4 heard this testimony, and the members of the Victims

    5 and Witnesses Unit, who are sometimes present at the

    6 hearings, are not systematically present.

    7 Therefore, I would ask that should the

    8 Tribunal move towards restrictions or prohibitions on

    9 contact between a witness and his party, that at least

    10 it recognise the right or even the duty to invite

    11 someone from the Victims and Witnesses Unit to be

    12 present throughout the testimony. So that afterwards,

    13 it will be in a position to give him that psychological

    14 support which is absolutely necessary.

    15 Lastly, in conclusion, I wonder about the

    16 respect for the new Rules that Your Honours are

    17 thinking about putting forth. I'm speaking, of course,

    18 in general terms. I'm not speaking about the six

    19 accused in this room. I'm not speaking about this

    20 specific case in which we are working. But in all

    21 trials throughout the world, in any country, the

    22 Prosecution and the Defence find themselves in

    23 differing positions in respect of the rules of law, not

    24 in a different position, legally speaking, of course,

    25 but practically speaking, and this under all

  20. 1 circumstances.

    2 The first and major reason for the situation

    3 that we do not think about very often is that, both for

    4 the accused and for the Prosecution, there is a

    5 difference. The Prosecution has no personal interest

    6 in convicting the accused if they have not been proven

    7 guilty. And if the Tribunal does not grant our

    8 request, we will not feel any regret for that. We will

    9 not feel spited. However, for the accused, of course,

    10 the situation is completely different. What is playing

    11 itself out here for the accused, obviously, is his own

    12 fate, his reputation, and his freedom.

    13 Therefore, once again, I'm not referring

    14 specifically to any of the accused in this courtroom or

    15 any of the circumstances of this trial. It sometimes

    16 happens that the accused do not take the same position

    17 as the Prosecution in respect of the common rule. And,

    18 therefore, under certain circumstances, the question of

    19 application of the rules of law might arise.

    20 From a legal point of view, the answer to

    21 that question is found in the very context that we find

    22 ourselves, that is, in Rule 77 of the Rules of

    23 Procedures and Evidence, which provides that any person

    24 who interferes with or intimidates a witness who is

    25 giving, has given, or is about to give evidence before

  21. 1 a Trial Chamber commits a contempt of the Tribunal.

    2 This is the legal response. In practical terms, the

    3 answer might be more difficult to arrive at. This

    4 Trial Chamber is very aware that as regards application

    5 of Rule 77, certain difficulties might arise,

    6 particularly, as regards evidence.

    7 Therefore, I have no solutions to bring to

    8 you in respect of this question, but simply it is a

    9 concern, which is a real one, and I wanted to mention

    10 it briefly as I concluded my presentation of the

    11 opinion of the Office of the Prosecutor about reform of

    12 our Rules of Procedures and Evidence that Your Honours

    13 are thinking about.

    14 Thank you very much.

    15 JUDGE CASSESE: Thank you very much. Thank

    16 you very much, Prosecutor, for your very elaborate,

    17 very detailed, and very clear statement. You have

    18 presented a very high-level presentation, but,

    19 nonetheless, I believe we will have questions for you.

    20 Before we give the floor to the Defence, we would like

    21 to ask you to clarify a number of points which you have

    22 raised.

    23 I would first like to give the floor to Judge

    24 Mumba.

    25 JUDGE MUMBA: Thank you. In another trial

  22. 1 before this very Trial Chamber, this is the case of the

    2 Prosecutor versus Furundzija, the same issue did

    3 arise. In that case, the Defence counsel, both of whom

    4 are from the American system, did raise the issue with

    5 the Trial Chamber, that they were not pleased to know

    6 that the prosecuting counsel was contacting witnesses

    7 after the trial had started. They asked for an order

    8 which they described as an order of sequestration. The

    9 Trial Chamber did issue this order prohibiting contact

    10 of witnesses by trial attorneys during the trial.

    11 It is important for you to know that this

    12 Trial Chamber has had occasion to deal with this matter

    13 before.

    14 JUDGE MAY: I don't think there is any

    15 dispute about events before the witness starts giving

    16 evidence. It's after the evidence starts that the

    17 problems may arise. While I understand, of course, the

    18 points which you make, the unusual nature of this

    19 Tribunal, the fact that the witnesses come from a long

    20 way away and have suffered in the way which they have,

    21 nonetheless, I wonder whether it's appropriate for

    22 counsel to give the sort of support that you spoke of

    23 during the examination, whether it's appropriate for

    24 counsel, who is conducting the examination, to comment

    25 on how it's going to the witness. I rather doubt

  23. 1 that's appropriate.

    2 It seems to me that the only circumstances in

    3 which I could see a justification for speaking to the

    4 witness is if something unexpected arises, as in the

    5 situation which occurred the other day, the Captain

    6 Stevens situation, if I can call it that, when clearly

    7 there was some information which the witness wishes to

    8 communicate which, obviously, counsel should know about

    9 or otherwise it's lost.

    10 It was in that connection, I think, that the

    11 suggestion that the leave of the Chamber may have to be

    12 sought was given. It's the mechanics, really, of

    13 dealing with that which, it seems to me, have to be

    14 considered. How is it that information can be given to

    15 the witness? How is it that support can be given to

    16 the witness once the examination has started?

    17 It's in that connection that I would be

    18 grateful of assistance, speaking for myself.

    19 JUDGE CASSESE: Thank you. It might be

    20 useful to hear all our comments, and then I will give you

    21 the floor. I would like to add a few comments to what

    22 my colleagues have just said.

    23 First of all, you said, I think it was your

    24 second comment, you said that if the rules are

    25 somewhat changed as regards this trial, our Rules of

  24. 1 Procedures and Evidence would have to be modified,

    2 amended, and you would ask that all of the Judges in

    3 Plenary Sessions ask for changes in the Rules. That is

    4 true. But I'm wondering whether you think that this

    5 amendment is really necessary. Do you consider that,

    6 as things stand now, we have the power to ask both of

    7 the parties to have no relations with the witness while

    8 they are being heard? This is the first question.

    9 The second question is that you said, about

    10 the second solution that you put forth, that the

    11 witness be prohibited from having any contacts with the

    12 party which called him, but only at the end of the

    13 examination-in-chief. In order to justify what you've

    14 said, if I understood it, is that you're choosing the

    15 least bad from the point of view of the Prosecution,

    16 that after the oath, after the solemn declaration,

    17 which is provided for by Rule 90B, the witness remains

    18 the witness of the party that has called him.

    19 Of course, it is true that he does remain the

    20 witness of the party that called him, but after that

    21 oath has been taken, the witness has to tell the

    22 truth. We have specific rules for cases where he

    23 wouldn't tell the truth. I'm wondering whether your

    24 suggestion is absolutely appropriate. In any case, I

    25 would like to have your thoughts about that point to

  25. 1 understand better the justification that you gave.

    2 The third and last point is about the

    3 possibility that this prohibition might not be

    4 absolute, yes, Judge May yesterday called forth the

    5 possibility of the Trial Chamber authorising the party

    6 who called the witness to have contacts with him. You

    7 said, "Well, but that might cause delays and you would

    8 have to give reasons when you ask for authorisation."

    9 Why not? I was wondering why not? If one gives

    10 somewhat more general reasons, but those would, at

    11 least, allow the Trial Chamber to understand what the

    12 reasons are, what the specific reasons are, that would,

    13 under exceptional circumstances, allow these kinds of

    14 contact. Of course, the Tribunal could immediately

    15 decide from the bench as to the question that has been

    16 raised.

    17 I would like to ask you about a solution,

    18 according to which the Trial Chamber could authorise

    19 contacts further to a reasoned request from the party

    20 that called the witness, and that would also take into

    21 account the suggestion that the Tribunal could

    22 mandate somebody to be present during the discussions.

    23 I think that is an excellent suggestion, and I also

    24 think that a member of the Victims and Witnesses Unit

    25 might be the person to do it, since that person is

  26. 1 neutral and could be present during the contact to be

    2 sure that that contact deals with subjects about which

    3 the request for authorisation refers to.

    4 If one could combine the different elements,

    5 that is, authorisation, request for authorisation, with

    6 the reasons that would justify the authorisation, an

    7 authorisation from the Trial Chamber, but with the

    8 guarantee of the presence of an independent individual,

    9 a neutral person -- well, what would your suggestion

    10 then be, if we were to put that all together?

    11 And it would be based on all the facts that you

    12 mentioned. Because I think in the end, it would be

    13 very useful for the interests of justice to proceed as we

    14 discussed, and as the Defence raised. Here you have

    15 three questions.

    16 Now, Mr. Terrier, perhaps you might want to

    17 answer me.

    18 MR. TERRIER: First of all, on the issue that

    19 you have raised regarding the interests that I have

    20 made with regards to amendments to the Rules of

    21 Procedure and Evidence, this amendment, I believe, is

    22 desirable, and I also concede the fact that this

    23 Tribunal has the right, as Judge Mumba has just

    24 reminded us, this was already done, indeed, that the

    25 Tribunal does have the right to apply this amendment in

  27. 1 a general way or a case-by-case basis. So the question

    2 is not whether or not there is a legally sound issue,

    3 but whether or not this deals with the overall --

    4 whether it's consistent with overall practices here in

    5 the Trial Chambers of this Tribunal.

    6 It would not be desirable -- rather, it would

    7 be desirable for the practices of all the Trial

    8 Chambers to be as close as possible, and I believe that

    9 everyone here understands that I am not contesting the

    10 legitimacy of this Tribunal of imposing whatever rules

    11 it feels it should impose.

    12 Secondly -- the second observation I would

    13 like to make, at what point -- this is a point that the

    14 President -- question the President put to me, at what

    15 point should there be restrictions on contact with the

    16 witnesses? Should it be at the end of the

    17 examination-in-chief or should it be after the witness

    18 has taken the oath? This is an issue by I feel should

    19 be discussed because, we have seen the experience of

    20 the Great Britain, and we've also seen the experience

    21 of Canada, who go in the same direction but nonetheless

    22 have some variations of this theme with regards to the

    23 prohibitions of contact.

    24 Law, of course, is not an exact science, and,

    25 therefore, I cannot show, based on some sort of a

  28. 1 chemical formula that I am correct or that someone else

    2 is wrong. However, nonetheless, it seems to me that

    3 once the oath has been taken, this is a guarantee of

    4 procedure, this is a guarantee that truth will prevail

    5 before this Tribunal, and this is not a procedure by

    6 which the status of a person can be changed. If you

    7 will, this is almost a formula of faith. Of course,

    8 the Tribunal may have a very different view of this.

    9 Consequently, I wish to look more at the practical

    10 aspect of this issue.

    11 Throughout the duration of the

    12 examination-in-chief, which can be relatively short --

    13 well, throughout the duration of this

    14 examination-in-chief, the preparations of this witness

    15 should remain valid. Throughout this

    16 examination-in-chief, the witness shall respond to

    17 questions which the party who had called this witness

    18 feels important to ask.

    19 In this case, the witness has not yet been

    20 questioned by the Tribunal, not at this stage anyway.

    21 So it seems to me very clear that until the end of the

    22 examination-in-chief, the witness of the calling party

    23 remains the witness of that calling party. However,

    24 you may see this from a different advantage point. We

    25 look at very old legal systems which are very well

  29. 1 established, we see that they go into a different area

    2 or a different direction, rather.

    3 The third observation I would make, I do not

    4 feel it would be within my own function here in this

    5 Tribunal to give psychological support to the witness.

    6 This is not my own training, this is not my own

    7 experience. However, it may occur that I do so, that I

    8 have been brought to do so, when it seems, to me, to be

    9 necessary to give such psychological support. It is

    10 for that reason that I've stated that if such a support

    11 may be given to the witness in another manner, I see no

    12 inconvenience whatsoever, as long as such support is

    13 real and appropriate.

    14 The fourth point is regarding the conditions

    15 in which these contacts may be made again or maintained

    16 with this witness by one of the parties. You've

    17 mentioned two different types of guarantees. One,

    18 leave of the Tribunal and the presence of a third

    19 party.

    20 In my own mind, the presentation of a third

    21 party is the primary type of guarantee, because what

    22 sometimes may cause a problem is not the fact that

    23 there was contact, but what happened during the course

    24 of this contact. And so it is in this case that we may

    25 have a need for an outside witness, a third party, if

  30. 1 you will, who can report to the Tribunal, at the

    2 request of this Tribunal, what to place, what he heard

    3 and what he saw. The first of these guarantees is

    4 there was a third party present.

    5 In my own mind, the difference that exists in

    6 the system that you yourself, Mr. President, has

    7 raised, is that the context in these circumstances and

    8 with these guarantees in place, should not be

    9 considered necessarily as exceptional, but of course,

    10 always with leave of the Tribunal, because it would be

    11 to this Tribunal that this party will have to address

    12 itself in order to be appointed as a third party.

    13 Therefore, based on Rule 90, the Tribunal can say, "No,

    14 we're not going to appoint a third party, there is no

    15 cause for any contact."

    16 So I believe that, if you will, when a third

    17 party which appointed by this Tribunal must intervene,

    18 that itself is not a point of issue. The point of

    19 issue is whether or not these would be exceptional

    20 cases or non-exceptional cases.

    21 It is very clear that in some of the

    22 testimonies that would take place during the course of

    23 testimony there may be some problems. The transcripts,

    24 for example, may be somewhat difficult to understand

    25 and to follow, and some clarifications may be required,

  31. 1 naturally. In such circumstances, if a clarification

    2 is required, there would be no reason for the Tribunal

    3 to have to require that a party with, of course, the

    4 presence of the third party be required to submit such

    5 a clarification to this Tribunal.

    6 So whether or not the Tribunal authorises or

    7 forbids such a contact is, for me, not really a

    8 problem. This is quite logical within a system that I

    9 myself propose, that is to say, the presence of a third

    10 party mandated or appointed by the Tribunal. I think

    11 this should be the Tribunal itself who should be in

    12 charge of telling the -- either party that if they are

    13 to have contact with one of the witnesses, they must go

    14 through a third party who will be, if you will, a

    15 representative of the Tribunal. Then, in this case the

    16 Tribunal could allow such contact to take place.

    17 These are the observations I would like to

    18 make with regards to the questions you have put to me.

    19 Perhaps they have been incomplete, but Mr. Moskowitz

    20 himself would like to add a few words. Therefore, I

    21 would wish to give him the floor on this issue.

    22 MR. MOSKOWITZ: With the permission of the

    23 Tribunal. Thank you, Mr. Terrier.

    24 I would like to just briefly address a

    25 specific concern that Judge May raised about the

  32. 1 practicalities of assuring that there would be no

    2 information lost as a result of not being able to

    3 contact witnesses either during direct-examination or

    4 during cross-examination. And I think the Captain

    5 Stevens incident is a good example of how, I think,

    6 close we came to losing what I consider to be important

    7 information for the Tribunal to hear.

    8 I think without having actual physical

    9 contact with the witnesses, there is a substantial risk

    10 that information will be lost, in that witnesses will

    11 not convey that information to the Prosecutor simply

    12 because the prosecutor is not there.

    13 We spoke to the Victim and Witnesses Unit

    14 yesterday to share our concerns with them and to speak

    15 with them about what they could do to assist in that

    16 process, and they were quite candid with us that their

    17 mission and their obligation is to provide support for

    18 the witnesses, but they are not in a position to

    19 provide information from witnesses, through them to the

    20 Prosecutor. And as a result, had there been a rule in

    21 place not permitting witness contact, for example, with

    22 Captain Stevens, in all likelihood we would not have

    23 received that information, and that information would

    24 not have been brought out during direct-examination.

    25 I would also like to underscore what

  33. 1 Mr. Terrier has said about the potential for

    2 miscommunication and misunderstanding that is perhaps

    3 somewhat unique here in the Tribunal as opposed to some

    4 of the national systems that we're all used to. And

    5 I'm thinking of one incident in particular that

    6 happened earlier, not an especially important incident,

    7 but a witness who had described, I think during

    8 cross-examination, a motorcycle with a flag on it, and

    9 it struck me as quite unusual the way it was describe,

    10 and only by asking the witness later, during a break,

    11 what he meant by that, did we find out that he meant

    12 something completely different, that the flag was not

    13 on the motorcycle, it was being dragged behind the

    14 motorcycle. I think that just sort of points out some

    15 of the real potential for confusion and

    16 miscommunication that can inevitably happen, and that

    17 can be clarified with witness contact in order to make

    18 sure that this Tribunal receives the most accurate

    19 information that we can provide.

    20 But my main concern is the concern that I

    21 think Judge May expressed, and that is the potential

    22 for loss of information and how best to make sure that

    23 doesn't happen, while at the same time providing a

    24 situation where everyone can be assured that there is

    25 nothing improper going on. And perhaps the suggestion

  34. 1 that Mr. Terrier made is the right one, that there be

    2 someone from the Victims and Witnesses Unit present, to

    3 assure everyone, there is nothing improper going on,

    4 but still to allow a sufficient contact with the

    5 witness during the course of both direct and

    6 cross-examination, so that information can be conveyed

    7 to us as is necessary so that it can be brought out for

    8 the Tribunal.

    9 JUDGE CASSESE: Before I turn to the Defence,

    10 let me just ask Mr. Moskowitz, apropos what you just

    11 said about the flag, but of course, I mean, we were all

    12 struck by what the witness said, but you might have

    13 asked this question in court. Why do you need to talk

    14 to him in private? I mean, you say -- I mean, when we

    15 come back, "Look, what did you mean by seeing the

    16 flag?"

    17 MR. MOSKOWITZ: Yes.

    18 JUDGE CASSESE: I don't know whether there

    19 are other examples, but I would say that -- I humbly

    20 suggest that this particular example is not terribly

    21 convincing.

    22 MR. MOSKOWITZ: I think this perhaps points

    23 out some differences in culture between the continental

    24 system and the system I'm used to. I must say that one

    25 of the wonderful things about working here is to see

  35. 1 those two systems meet.

    2 It's certainly part of my training and

    3 culture, when dealing with witnesses on the stand,

    4 generally not to ask questions to which you do not know

    5 the answer, and that is simply my training. It's the

    6 way we do things in my country, and so that's my

    7 culture.

    8 JUDGE CASSESE: Thank you. Yes, Judge

    9 Mumba?

    10 JUDGE MUMBA: I just want to find out from

    11 the Prosecution; when these cases are prepared, like

    12 when the witnesses had been contacted, the statements

    13 have been taken, is there no officer, like an

    14 investigation officer, who has had contact with

    15 witnesses, sometimes has recorded the statements? Who

    16 puts up the evidence which is required for every

    17 trial? Is there no such officer? Because I was

    18 thinking that if you have such an officer who would

    19 normally be called an investigations officers, the one

    20 who knows the witnesses, the evidence likely to be

    21 given to support the indictment, and that is the person

    22 who would be assisting the trial attorney.

    23 I just want to know whether you have such

    24 people in the preparation of your cases.

    25 MR. MOSKOWITZ: Yes, Judge Mumba, there are,

  36. 1 of course, investigators who become case

    2 investigators. During the course of these

    3 investigations, however, they go on sometimes for many

    4 years, and investigators come and go within the

    5 Tribunal. And so it's difficult to say, at least in

    6 this investigation, that there has been a lead

    7 investigator that is familiar with the facts of the

    8 case from the beginning of the investigation.

    9 I will say that at this time our lead

    10 investigator is someone who has arrived in The Hague on

    11 detail only within the last several months, and he is,

    12 in fact, in Bosnia doing some work as we discussed

    13 earlier, taking some measurements and doing some

    14 last-minute investigations.

    15 So this again, I think, points out one of the

    16 differences that Mr. Terrier was referring to between

    17 some of our national systems and the way things work

    18 here in the Tribunal, and it creates, I think, some of

    19 the special concerns that lead us to believe that a

    20 certain amount of witness contact, even during

    21 testimony, is absolutely necessary.

    22 JUDGE CASSESE: All right. Let us now move

    23 on to the Defence, and I wonder whether -- Counsel

    24 Pavkovic?

    25 MR. PAVKOVIC: Good morning, Your Honour.

  37. 1 First of all, I must point out that when Mrs. Slokovic

    2 raised this issue, I do not think that she had in mind

    3 at that point, the breadth of the subject matter

    4 involved.

    5 If I'm now in a position to interpret her

    6 position, and on the basis of our mutual discussions,

    7 perhaps I could attempt to do so, because since the day

    8 this question has been put, we, the Defence counsel,

    9 have been exchanging views amongst ourselves, and the

    10 level of the problem that she wished to highlight on

    11 that occasion was ever a pragmatic nature. However,

    12 today, we are faced with positions that go far beyond

    13 what we bore in mind on that occasion. Of course, no

    14 harm done, we think. It is a good thing to present it

    15 this way.

    16 However, it does seem to me that the

    17 Prosecutor has, in a very commendable manner, raised

    18 issues which require a doctrinairy (sic) level of

    19 discussion, and it seems to me that if we do accept

    20 this kind of discussion, the Defence, at this point in

    21 time, because we are actually faced with many different

    22 issues, would not be able to conduct a discussion at

    23 this level, because after call, the Prosecutor had a

    24 few days to prepare for this.

    25 So, Your Honours, I would propose, of course,

  38. 1 if you believe that this should be argued further and

    2 that even more arguments should be presented in

    3 addition to the ones that were presented by

    4 Mrs. Slokovic when she originally expounded on this

    5 proposal, that you then allow the Defence to present

    6 its positions at the next trial session, on Monday at

    7 least, if you deem this necessary.

    8 We think that many questions have been

    9 raised, and now the Defence attorneys could either

    10 present their very own points of view, each and every

    11 one of us, I mean, so either that should be allowed,

    12 but I think another option would be more practical,

    13 that we discuss this amongst ourselves during the

    14 break, and that then we would reduce our position on

    15 this issue to the level that I mentioned at the very

    16 outset of my statement. So that is the way we would

    17 like to put it, pragmatically, as I said.

    18 We do not think the rules should be changed,

    19 because the rules are sufficient guarantee both in

    20 terms of witness protection and in terms of making

    21 possible, taking a note of all the facts that the

    22 Prosecutor mentioned, and that he would be saying the

    23 truth, et cetera, that all of this will indeed be

    24 carried through.

    25 There's one thing that we are a bit

  39. 1 apprehensive of, that is to say that during a trial,

    2 when the examination-in-chief goes on for longer than

    3 one day, in those intervals, perhaps one can

    4 unintentionally, perhaps even due to clumsiness, talk

    5 to the witness and modify his statement, affect the

    6 witness, affect his later statement, so that the

    7 witness would indeed speak along the lines of the

    8 thesis that the party concerned wishes to have

    9 corroborated. That is the fear that the Defence is

    10 expressing, because it seemed to us, in the proceedings

    11 to date, that such interventions did occur, especially

    12 in the case that we have been mentioning time and again

    13 today, that is to say the questioning of Captain

    14 Stevens.

    15 So let me conclude by saying, Your Honours,

    16 that I hope that you will assess this position of the

    17 Defence, and if you deem it necessary, to continue our

    18 discussion on this, that you give us the same amount of

    19 time that the Prosecutor had, so that we would quite

    20 precisely spell out our views so that we could have a

    21 general overview of this problem. Thank you.

    22 JUDGE CASSESE: Thank you.

    23 We consider that the request of Defence

    24 counsel is quite appropriate and fully justified, so

    25 they need some time to get together and try to agree

  40. 1 upon their own common and joint position. So,

    2 therefore, let's come back to this issue on Monday.

    3 However, since we have for next week 13

    4 witnesses, we would like to concentrate on those

    5 witnesses. We would like to suggest this issue should

    6 be discussed on Monday by the Defence, not necessarily

    7 at 9.30 when we start with witnesses, but sometime

    8 maybe in the afternoon, and if need be, we will maybe

    9 prolong our hearing in the afternoon by half an hour.

    10 Instead of finishing at 5.00, we could go on until 5.30

    11 if it is necessary. But I think probably the Defence

    12 counsel will need not more than 30 minutes to set out

    13 their position. We know the position of the

    14 Prosecutor. Of course, at that stage the Prosecutor

    15 may wish to respond, and we will see whether time is

    16 available. But if we may conclude this discussion of

    17 this item by Monday evening, it will be quite good,

    18 because then we would be in a position to make a ruling

    19 on Tuesday, because I'm sure that Defence counsel are

    20 very keen to see that necessary changes, if made,

    21 enter into force, as it were, as soon as possible.

    22 All right. Any other issue? I see that we

    23 have 13 witnesses. We hope that all of them will be

    24 heard next week. I assume some will probably stay on

    25 if we can't hear all of them, so sort of reserve

  41. 1 witnesses. But we are very appreciative of the efforts

    2 made by the Prosecution to call more witnesses so that

    3 we can proceed more expeditiously.

    4 Yes, Counsel Krajina.

    5 MR. KRAJINA: Your Honours, I should like to

    6 raise a question of procedure regarding the

    7 presentation of evidence by the Defence, and I would

    8 like to hear your views on it and how in keeping with

    9 that we could prepare better quality presentation of

    10 evidence on the part of the Defence. My question

    11 relates to the cross-examination by the Defence after

    12 hearing the Prosecution witness.

    13 Can the Defence, during its cross-examination

    14 of the Prosecution witness, present video cassettes

    15 which were filmed by the Defence, and ask the witness

    16 to talk of the contents of that cassette?

    17 I am talking about a particular video

    18 cassette which films the location to which the

    19 testimony of the Prosecution witness refers, and on the

    20 particular video cassette there is a statement by a

    21 second eyewitness which the Prosecution witness has

    22 referred to.

    23 This video cassette was filmed by the

    24 Defence, and of the Prosecution witness, we should like

    25 to ask that they present their views regarding that

  42. 1 cassette, to say "yes" or "no" to the contents of the

    2 cassette, and to state whether the location filmed was

    3 the scene of the incidents or not, whether the events

    4 have been correctly shown by the witness or not.

    5 The Defence, at all events, is ready, before

    6 hearing the testimony of the Prosecution witness, to

    7 provide the Prosecutor's office and the court with the

    8 video cassette, and we would also agree to have the

    9 Prosecution use the video cassette during his

    10 examination of the Prosecution witness.

    11 Therefore, my question is as follows: Will

    12 the Trial Chamber permit us to show this particular

    13 video cassette, in the manner that I have explained,

    14 during our cross-examination?

    15 The witness appearing on the video cassette,

    16 eyewitness, we intend to call as a witness before this

    17 Trial Chamber. However, in this way, we should like to

    18 present his testimony to other witnesses testifying as

    19 to the same facts and circumstances in order to

    20 confront the two testimonies. Thank you, Your

    21 Honours.

    22 JUDGE CASSESE: Mr. Terrier.

    23 MR. TERRIER: Perhaps a decision should be

    24 made, but what I would like to say very quickly, at the

    25 request of my colleague, of course we have no objection

  43. 1 that the film cassettes be submitted to the Tribunal in

    2 the context of the cross-examination. However, we

    3 request that these videos be submitted sufficiently in

    4 advance to permit the Prosecution to view the film, to

    5 give our own point of view on that.

    6 This is regarding -- we understand there is

    7 one issue, and that was the issue of the store

    8 belonging to Vlatko Kupreskic. We understand that the

    9 exterior of that store has been modified to a great

    10 extent. So, of course, if that indeed is going to be

    11 the issue that's going to be presented, then we wish to

    12 have advance notice of that so we can prepare.

    13 JUDGE CASSESE: We rule as follows: Yes, it

    14 is quite appropriate for the Defence to produce a

    15 videotape and use it in cross-examination. However, as

    16 Counsel Krajina has rightly suggested, the videotape

    17 should be handed in advance to the Prosecution.

    18 So if you're going to use the videotape next

    19 week, could you kindly give it to the Prosecution maybe

    20 today, so that they can spend some time looking at the

    21 videotape? And probably you may wish to provide, also,

    22 details about the videotape, when it was made, and any

    23 other detail, whether it is a copy, the original, and

    24 so on. I think the Prosecution may need to have all

    25 these details. But in principle, of course, it is your

  44. 1 right to use any videotape while cross-examining

    2 Prosecution witnesses.

    3 Any other outstanding matters? Counsel

    4 Krajina?

    5 MR. KRAJINA: Thank you, Mr. President. We

    6 shall be providing the Prosecution with the video

    7 cassette and all the necessary data on Monday.

    8 JUDGE CASSESE: All right. On Monday, but

    9 when will you start using the video cassette in court,

    10 because you must give the Prosecution, at least, one or

    11 two days, I think.

    12 MR. KRAJINA: We expect to use this three

    13 days later, three days after having presented the video

    14 cassette. I think that is sufficient for the

    15 Prosecution.

    16 JUDGE CASSESE: Yes, indeed, I think so. I

    17 assume this will be used in relation to one of those

    18 witnesses who are listed here on the list provided by

    19 the Prosecution?

    20 MR. KRAJINA: Mr. President, the list from

    21 number 6 onwards, the witness list from number 6

    22 onwards, that's where we're going to use it.

    23 JUDGE CASSESE: Mr. Moskowitz?

    24 MR. MOSKOWITZ: The only concern I voice, at

    25 this point, is that occasionally, the order of the

  45. 1 witnesses tend to change, sometimes beyond our control

    2 to stop it. If, for some reason, a witness has to

    3 appear before another witness and Mr. Krajina wishes to

    4 use the videotape to cross-examine, and we have not yet

    5 had an opportunity to sufficiently view the tape, then

    6 that could be a problem. I would suggest, if at all

    7 possible, that it would be better to give us the tape

    8 today.

    9 JUDGE CASSESE: Counsel Krajina, is it

    10 possible for you to provide the tape to the Prosecution

    11 today? I think the Prosecution has a very good point.

    12 Very often, they have to change the order of witnesses,

    13 and then you would not be in a position to use the

    14 videotape while cross-examining a particular witness.

    15 As I say, if you have the videotape close at hand, why

    16 not provide a copy to the Prosecution today?

    17 MR. KRAJINA: Mr. President, we will

    18 endeavour to do so today. I think we can, yes.

    19 JUDGE CASSESE: Thank you very much, indeed,

    20 Mr. Krajina.

    21 Counsel Slokovic-Glumac?

    22 MS. SLOKOVIC-GLUMAC: Just one brief

    23 question. At one of the discussions we had two weeks

    24 ago, a decision was taken to hear a witness, a female

    25 witness, and she returned to Bosnia, according to our

  46. 1 information. I should like the Trial Chamber to ask

    2 the Prosecution's office to see how she is health-wise

    3 and for medical records to be submitted to see whether

    4 this witness should not appear before the Trial Chamber

    5 because of her health situation, to see how we should

    6 react to that.

    7 JUDGE CASSESE: Thank you. Of course, we had

    8 not forgotten your request concerning this particular

    9 witness. I immediately got in touch with the Victims

    10 and Witnesses Unit, and they pointed out to me, I have

    11 a whole memo here, that in order to let us have the

    12 medical report of this witness, they need the

    13 authorisation of the witness, the signature. So they

    14 will go there this week, probably they have gone there

    15 this week to Bosnia, to try to get the signature,

    16 namely, the authorisation from the witness for the

    17 disclosure of her medical report to the Court. I

    18 assume that pretty soon, probably early next week, we

    19 will have the medical report.

    20 We have thought of various options which are

    21 open to us. First of all, we would like to know

    22 whether the Prosecution intends to call this witness,

    23 this particular witness, or, if they don't, whether the

    24 Defence is prepared to call the witness or if the Trial

    25 Chamber, acting upon the relevant Rule in the Rules of

  47. 1 Procedures and Evidence, will call this witness as a

    2 Trial Chamber witness.

    3 The Unit is very keen to know from us the

    4 status of this witness, because I understand that

    5 depending on her status, whether she's a Prosecution,

    6 Defence or Court witness, different measures are taken,

    7 always in a neutral way. Therefore, we have to decide

    8 on this matter. Then, of course, as I said before,

    9 however, in case of a refusal by the witness to come

    10 here to The Hague, we feel that we should not go as far

    11 as to compel her to come here to court. Namely, we do

    12 not intend to subpoena the witness. I will tell you,

    13 also, what other options we have thought of.

    14 Let me, first of all, ask Mr. Terrier whether

    15 they have decided what to do.

    16 MR. TERRIER: Mr. President, to tell you the

    17 truth, we no longer ask ourself this question, because

    18 we felt that, perhaps, the Tribunal would decide

    19 whether this witness should come. Therefore, we did

    20 not feel it was our initiative anymore. At last, the

    21 practical issue to present itself, that is, her health,

    22 which, of course, might prevent this decision from

    23 being taken. Otherwise, we have no objection to the

    24 principle of her being called if the Tribunal wishes to

    25 do so, of course.

  48. 1 JUDGE CASSESE: I think that in this case, it

    2 is better for the witness to be a witness called by the

    3 Trial Chamber to give evidence in court, also because

    4 this might appear to the witness herself as a way of

    5 protection, a way of protecting her in coming here. So

    6 she might find a psychological incentive in coming here

    7 to give evidence because of the request put forward by

    8 the Court.

    9 Now, the next steps are as follows: First of

    10 all, we will receive the medical report. I hope it is

    11 not bad. Then we will ask her to come over here. If

    12 she refuses, we don't want to subpoena her, for a lot

    13 of obvious psychological reasons. However, we might

    14 take a deposition when we go to

    15 Bosnia-Herzegovina. We might envisage the

    16 possibility of taking a deposition under Rule 70, I

    17 think it is, with the presence of Defence counsel, and

    18 the whole Court would be there, say, maybe in her own

    19 house, so she would feel comfortable.

    20 We might even decide to admit in evidence her

    21 statements, her various statements. This is a

    22 fallback. I would prefer either her to come over here

    23 or to take a deposition, because it's better to have

    24 the witness in front of us. However, as I say, as a

    25 fallback solution, we might eventually decide to enter

  49. 1 into evidence those statements which, I think, the

    2 Defence intends to stress.

    3 This is the situation. I hope that it's fine

    4 with you. We will let you know. Also, because, of

    5 course, if this witness comes here, we have to let you

    6 know so that you can do some planning because of the

    7 list of witnesses you have produced.

    8 I think it's now time to adjourn. No other

    9 points? Thank you for this extremely important

    10 discussion, and we will adjourn until Monday at 9.30.

    11 --- Whereupon the hearing adjourned at

    12 11.00 a.m. to be reconvened on Monday,

    13 the 21st day of September, 1998 at

    14 9.30 a.m.