Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1107

1 Tuesday, 2 May 2000

2 [Open session]

3 --- Upon commencing at 9.42 a.m.

4 [The accused entered court]

5 JUDGE RODRIGUES: [Interpretation] Please be

6 seated.

7 Good morning, ladies and gentlemen; good

8 morning to the technical booth. Is everyone present?

9 Yes. Once we resume, I'm going to ask the Office of

10 the Prosecution to introduce themselves.

11 MS. HOLLIS: Good morning, Your Honours.

12 Brenda Hollis, Michael Keegan, and Kapila Waidyaratne

13 appear on behalf of the Prosecutor.

14 JUDGE RODRIGUES: [Interpretation] Thank you

15 very much, Ms. Hollis.

16 And now the Defence, in the order of the

17 accused, will they please announce their names.

18 MR. K. SIMIC: [Interpretation] Good morning,

19 Your Honours. Defence of Mr. Kvocka, Mr. Lukic and

20 co-defence Mr. Simic.

21 MR. NIKOLIC: [Interpretation] Kos is

22 represented by Zarko Nikolic and Jelena Nikolic.

23 MR. FILA: [Interpretation] Mr. President,

24 good morning, I'm Toma Fila and together with Zoran

25 Jovanovic we represent Mr. Mladjo Radic.

Page 1108

1 MR. TOSIC: [Interpretation] Good morning,

2 Your Honours. I'm attorney Simo Tosic from Banja Luka,

3 my co-counsel Mr. Slobodan Stojanovic, attorney from

4 Belgrade, and we represent Zoran Zigic.

5 MR. J. SIMIC: [Interpretation] Good morning,

6 Your Honour. Jovan Simic, Dusan Masic, and Goran Rodic

7 representing Dragoljub Prcac.

8 JUDGE RODRIGUES: [Interpretation] For the

9 accused Kvocka we have Lukic and Simic. And if I heard

10 well, I didn't quite hear the first name of Mr. Prcac's

11 attorney. Could you repeat your name, please?

12 MR. J. SIMIC: [Interpretation] Jovan Simic.

13 JUDGE RODRIGUES: [Interpretation] Very well.

14 Thank you.

15 Mr. Dubuisson, can you call the case,

16 please.

17 THE REGISTRAR: [Interpretation] Yes, Your

18 Honour. It is case number IT-98-30-T, the Prosecutor

19 versus Miroslav Kvocka, Milojica Kos, Mladjo Radic,

20 Zoran Zigic and Dragoljub Prcac.

21 JUDGE RODRIGUES: [Interpretation] Thank you

22 very much. I see that Mr. Nikolic has something to

23 say.

24 MR. NIKOLIC: [Interpretation] Your Honour,

25 the co-counsel's name has not entered the transcript,

Page 1109

1 so could we correct that, please.

2 JUDGE RODRIGUES: [Interpretation] Could you

3 repeat it, please? And in that way it will be

4 included.

5 MR. NIKOLIC: [Interpretation] The Defence of

6 the accused Kos consists of Mrs. Jelena Nikolic,

7 Mr. Eugene O'Sullivan, and Zarko Nikolic.

8 JUDGE RODRIGUES: [Interpretation] We have it

9 now. Thank you very much.

10 We're going to resume our case, and I now

11 turn to Ms. Hollis.

12 Is there a technical problem, Mr. Dubuisson?

13 THE REGISTRAR: [Interpretation] No, I want to

14 make sure that the accused can follow the proceedings.

15 JUDGE RODRIGUES: [Interpretation] The

16 accused, can you all follow us? Yes, I see a nod in

17 the affirmative.

18 Ms. Hollis, you have the floor.

19 MS. HOLLIS: Thank you, Your Honours. The

20 Prosecution has filed a motion for clarification of

21 various matters prior to the commencement of the

22 Prosecution's case in chief. We believe that

23 clarification of these matters will make the

24 proceedings move more efficiently and more

25 expeditiously. We would like to address these matters

Page 1110

1 in turn as we have presented them in the motion, and

2 different of those of us on the trial team will be

3 dealing with each matter. Mr. Michael Keegan will be

4 dealing with the first matter that we have raised in

5 this motion, with permission of the Court.

6 JUDGE RODRIGUES: [Interpretation] Ms. Hollis,

7 does the motion have to do with protective measures,

8 the motion you filed on Friday?

9 MS. HOLLIS: Your Honour, the motion has to

10 do with protective measures and a variety of other

11 issues as well, including, Your Honours, a request that

12 Your Honours take judicial notice of facts that have

13 been presented to you; also a request that decisions be

14 made concerning a motion for protective measures; also

15 that clarification and decisions be made regarding the

16 Prosecution's proposed procedure of using trial

17 summaries and prior testimonies for witnesses.

18 In addition to that, Your Honour, a

19 discussion and decisions about the procedure on

20 cross-examination. And finally, Your Honour, a request

21 that a decision be made concerning the outstanding

22 motion for a site visit.

23 JUDGE RODRIGUES: [Interpretation] Yes. I was

24 about to propose, and I think we envisaged a Status

25 Conference for tomorrow. I don't know whether you

Page 1111

1 agree, but perhaps we could deal with all those matters

2 at the Status Conference tomorrow, and we could now

3 immediately resume the proceedings. I don't know

4 whether the questions you have mentioned, particularly

5 the question regarding witnesses, perhaps we could deal

6 with that matter today, and tomorrow we can address the

7 whole motion at the Status Conference. Otherwise,

8 there is a risk that we will be having a Status

9 Conference rather than the trial hearing.

10 What is your response to that suggestion,

11 Ms. Hollis?

12 MS. HOLLIS: Your Honour, first of all, the

13 Prosecution's understanding is that we would -- when we

14 recommenced, the initial agenda item would be the

15 Status Conference. We apologise if we misunderstood

16 that, but that was our understanding, that the very

17 first thing we would do would be to have a Status

18 Conference and then move into presentation of

19 evidence.

20 Be that as it may, Your Honour, several of

21 the things that I have mentioned do impact on all of

22 the witnesses, such as the issue of trial summaries and

23 prior testimony, the issue of cross-examination, and

24 the issue also of protective measures does not apply to

25 the first witness but does apply to the second, third,

Page 1112

1 and fourth witnesses to be called.

2 So the Prosecution would respectfully submit

3 that it would, perhaps, be most efficient if we were to

4 deal with the preliminary matters before resuming the

5 witness testimony.

6 JUDGE RODRIGUES: [Interpretation] And is your

7 witness present? You have witnesses ready?

8 MS. HOLLIS: We have witnesses for this week,

9 Your Honour, yes. Your Honour, we do not have a

10 witness present at this moment because of our

11 understanding about the Status Conference, but we would

12 be able to bring the witness here very quickly.

13 JUDGE RODRIGUES: [Interpretation] How long

14 would you need to bring the witness here?

15 MS. HOLLIS: The witness is a short distance

16 from here, so it would depend upon whether the witness

17 is prepared to arrive, how long it would take them to

18 prepare, and then bringing them here would be a matter

19 of probably half an hour, Your Honour. So perhaps an

20 hour, if we were to make the call now.

21 JUDGE RODRIGUES: [Interpretation] Ms. Hollis,

22 do you intend to make an opening statement in relation

23 to Mr. Prcac before we recommence?

24 MS. HOLLIS: Yes, Your Honour, there will be

25 an opening statement regarding Mr. Prcac.

Page 1113

1 JUDGE WALD: Ms. Hollis, has the Defence

2 counsel received these various motions that you filed

3 on Friday?

4 MS. HOLLIS: Your Honour, it's our

5 understanding that they have. I can't speak for them,

6 but that is our understanding.

7 JUDGE WALD: I know that I didn't receive

8 them, and I was here on the weekend. Yesterday was a

9 holiday. I think that if there are many procedural,

10 preliminary procedural matters that you, the

11 Prosecution, believe should be decided, it's probably

12 incumbent upon you to file earlier. We simply didn't

13 receive those.

14 MS. HOLLIS: I apologise for that, Your

15 Honour.

16 JUDGE WALD: Well, I don't know whose fault

17 it is, but I think it's just a caution to file ahead of

18 late Friday if it's a holiday weekend, because they

19 were not delivered to us, and I personally would not be

20 in a position to make an off-the-top of the head

21 judgement without even reading your written materials.

22 MS. HOLLIS: Of course, Your Honour. We

23 understand that.

24 JUDGE RODRIGUES: [Interpretation] Then, I

25 think, Ms. Hollis, it would be a good idea to begin

Page 1114

1 with the opening statement on Mr. Prcac. Then we could

2 have a break, in order to get the witness here, and

3 then we can begin with the testimony of the witness.

4 And if he needs protective measures, we can decide on

5 the spot, and tomorrow we can have the Status

6 Conference at 1.30, I think we planned to have it. And

7 that would give time for the Defence to prepare and for

8 us also to study the material. Do you agree with

9 that?

10 MS. HOLLIS: We will certainly comply with

11 your wishes, Your Honour. As I said, two of the

12 matters at least do impact on this witness as well.

13 The first witness is not a protected witness, so

14 there's no need for a decision on that. However,

15 whether we will be allowed to use the prior testimony

16 and whether we will be allowed to use trial summary

17 will need to be decided for this witness, Your Honour.

18 And I would ask Your Honour if we could be

19 allowed to have our case manager depart the courtroom

20 so that she can ensure that the witness is contacted

21 and brought to the building immediately.

22 JUDGE RODRIGUES: [Interpretation] Yes. We

23 agree. We are granting permission for the assistant to

24 leave. You can begin with your opening statement,

25 Ms. Hollis. You have the floor.

Page 1115

1 MS. HOLLIS: And Mr. Michael Keegan will be

2 presenting the opening, Your Honour.

3 THE INTERPRETER: Could the interpreters have

4 a copy, please.

5 MR. KEEGAN: Yes, Your Honour. The

6 interpreters have requested a copy, and I need to

7 apologise up front. Based on the discussions at the

8 close of the last Status Conference we had, we

9 anticipated, as we indicated, the Status Conference to

10 begin with, and therefore we didn't bring the copies in

11 this morning. So at this point, I'm sorry. I'll just

12 endeavour to read very slowly.

13 Your Honours, as this Chamber is aware, this

14 case is about the ethnic cleansing and persecution of

15 Bosnian Muslims and Bosnian Croats in the area of the

16 opstina of Prijedor.

17 During the period alleged in the indictment,

18 the accused Prcac, as with the other four accused in

19 this case, participated in the brutal campaign

20 orchestrated by the Bosnian Serb authorities in an

21 effort to rid the region of Bosnian Muslims and Bosnian

22 Croats as part of an effort to create a Serbian state.

23 In particular, the accused Prcac knowingly participated

24 in the crimes committed in the Omarska camp, one of the

25 integral components of that brutal campaign.

Page 1116

1 In the initial opening statement, my

2 colleague, Grant Niemann, spoke to you of the who,

3 when, where, and why of the crimes committed in opstina

4 Prijedor, including those committed in the Omarska,

5 Keraterm, and Trnopolje camps. He described for you

6 the responsibility of the accused Kvocka, Kos, Radic,

7 and Zigic. With the joinder of the accused Prcac, we

8 need to add him to the equation of criminal

9 responsibility and to describe his participation in the

10 campaign of terror that took place in opstina Prijedor

11 between April and December 1992.

12 The accused Prcac, along with the other four

13 accused, is individually responsible for the crimes

14 committed against the prisoners in the Omarska camp.

15 In addition, Prcac, like the accused Kvocka, Kos, and

16 Radic, held a position of superior authority but failed

17 to prevent or to punish the mistreatment of prisoners

18 by his subordinates. His criminal conduct, along with

19 that of his co-accused, ensured that the vast majority

20 of the non-Serb population that survived the attacks on

21 their homes or their imprisonment in the camps would

22 feel compelled to leave Prijedor.

23 The conduct of the accused Prcac, like that

24 of the other four accused, was a manifestation of

25 collective criminality; that is, criminal conduct

Page 1117

1 carried out by a group of individuals acting in

2 pursuance of a common criminal design. The common

3 criminal purpose or design that united the accused

4 Prcac with the other four accused in this trial was the

5 forced removal of the majority of Bosnian Muslims and

6 Bosnian Croats from the territory claimed as Republika

7 Srpska through a campaign of terror and persecution.

8 To that end, the specific province of the accused Prcac

9 and his co-accused was the Omarska camp.

10 In that camp, the five co-accused subjected

11 the Bosnian Muslim and Bosnian Croat prisoners, and the

12 others who the Serb leadership associated with those

13 two groups, to confinement under barbarous conditions.

14 Prisoners were murdered, tortured, sexually assaulted,

15 beaten, starved, and otherwise physically maltreated.

16 Prisoners were also subjected to brutal interrogation

17 sessions designed solely to create false confessions

18 and false facts that could be used by the Bosnian Serb

19 authorities as propaganda to justify their crimes and

20 the ongoing persecution of the Bosnian Muslims and

21 Bosnian Croats.

22 It is well recognised that members of a group

23 engaged in a common criminal plan or design may

24 contribute to the commission of the crime or crimes in

25 different ways yet be held equally responsible for

Page 1118

1 them. Some members of the group may physically

2 perpetrate the criminal act or acts, while others may

3 aid, abet, or otherwise facilitate the commission of

4 the crimes. Despite the variations and the form of

5 participation, however, the moral gravity or

6 responsibility of each of the participants in the crime

7 is often no different from one another.

8 In the present case, the brutal crimes that

9 were committed in the Omarska camp were directly

10 assisted and facilitated by the conduct of the accused

11 Prcac. While he may not have physically committed or

12 perhaps not been physically present when each of the

13 specific criminal acts alleged in the indictment or the

14 attached schedules were committed, those criminal acts

15 could not have been committed as they were without his

16 assistance, approval, and acquiescence. Thus, the

17 evidence will establish that the accused Prcac

18 knowingly participated in the crimes committed in the

19 Omarska camp by ordering, committing, and aiding and

20 abetting the commission of those crimes through his

21 approval, encouragement, and acquiescence.

22 THE INTERPRETER: Counsel, slow down,

23 please.

24 MR. KEEGAN: As my colleague described to you

25 in the initial opening statement, there are three

Page 1119

1 separate theories of responsibility under the "common

2 purpose" doctrine that are applicable in this case. I

3 will not repeat the full text of those arguments now;

4 rather, I would refer the Chamber to the text of the

5 prior opening address and the pre-trial brief submitted

6 by the Prosecution regarding the accused Prcac.

7 I would, however, like to summarise the three

8 theories and address some of the facts that were not

9 fully addressed earlier.

10 The first theory of liability under the

11 "common purpose" doctrine is where all the individuals

12 involved in the criminal acts share the same criminal

13 intention.

14 The second theory is a specialised derivative

15 of the first. It relates to what may be called,

16 perhaps, the "criminal enterprise" doctrine and is

17 related to the jurisprudence of the concentration camp

18 cases which arose from the Second World War. That

19 theory dictates that the accused must have known the

20 nature of the criminal enterprise and had the intent to

21 further its purpose.

22 The third theory involves responsibility for

23 criminal acts that may fall outside the original common

24 design of the group. Under this theory, an accused may

25 nevertheless be held criminally responsible if those

Page 1120

1 acts were the natural and foreseeable consequences of

2 the execution of the original criminal design.

3 It is the Prosecution's position that the

4 evidence will establish Dragoljub Prcac's criminal

5 responsibility for the crimes charged beyond a

6 reasonable doubt under any one or all three of the

7 above theories.

8 The evidence that will be presented will

9 establish beyond a reasonable doubt that the common

10 purpose of the Omarska, Keraterm, and Trnopolje camps

11 was the brutal confinement of Bosnian Muslims, Bosnian

12 Croats, and others who were identified with those

13 groups until they were either killed or expelled from

14 the Prijedor region. The evidence will prove that the

15 camps were an essential component of the overall

16 persecution of Bosnian Muslims, Bosnian Croats, and

17 others and played a major part in the ethnic cleansing

18 of the Prijedor area. The evidence will prove that

19 Mr. Prcac, along with the other co-accused, actively

20 participated in this criminal enterprise: the Omarska

21 camp. The evidence will show that through his conduct

22 in the camp he followed, supported, and sustained the

23 criminal conduct of the camp system.

24 It is impossible that the accused Prcac, or

25 any of the other co-accused, could have belonged to the

Page 1121

1 staff of the Omarska camp for a substantial period of

2 time, as they all did, without being aware of the

3 criminal purpose and conduct of the camp system. It

4 was equally impossible to hold positions of

5 responsibility and authority for the operation of the

6 Omarska camp, as this accused did, without being aware

7 of the system, without being aware that on a daily

8 basis prisoners in that camp were being murdered,

9 raped, beaten, tortured, and starved to death.

10 Faced with these clear facts, as it has

11 already been made clear from the pre-trial submissions

12 of the Defence, the accused, including Prcac, are

13 trying to portray that they had no choice in their

14 actions or that they had no real authority in the

15 camp. The indications already before the Trial Chamber

16 are that the Defence will try what is a fairly common

17 tactic of Defence counsel, to place the blame on the

18 dead guy, in this case, Simo Drljaca, the former chief

19 of police, or another accused who is not present before

20 this Chamber, Zeljko Meakic.

21 The evidence in this case, however, clearly

22 shows that this attempt to portray themselves as pawns

23 in a system without rules or clear command structure

24 falls without any merit. Rather, the evidence

25 establishes, as anyone with a reasonable knowledge of

Page 1122

1 the facts of this case would expect, that the crimes

2 committed against the Bosnian Muslims and Bosnian

3 Croats that are alleged in the indictment were executed

4 pursuant to a well-devised plan and by forces that were

5 well organised and structured.

6 As to the question of whether a chain of

7 command and the authority inherent therein existed in

8 the Omarska police, that is, amongst those responsible

9 for the camp, in the initial opening address, my

10 colleague, Mr. Niemann, referred you to document 32A in

11 the materials used for that address, which was a

12 directive, dated 11 May 1992, from the chief of police

13 in Prijedor, Simo Drljaca. That directive makes clear

14 the strict organisation and chain of authority that

15 existed. I quote: "The senior officer-policeman

16 worker relationship is to be tightened to the maximum.

17 All orders are to be acted upon without question. Any

18 refusal to do so would result in termination or removal

19 from the reserve forces."

20 An example of the level of organisation and

21 discipline that did, in fact, exist within the police

22 forces and could be achieved when the superiors and the

23 police forces wished to do so is evidenced by the

24 bragging of Simo Drljaca and other SDS leaders after

25 the takeover of Prijedor. That as a result of the

Page 1123

1 outstanding organisation and discipline of the police

2 forces, they took over power in the town of Prijedor in

3 less than an hour, using a force of over 1500 men

4 without firing a single shot.

5 Finally, the evidence of the witnesses will

6 establish beyond any doubt that there was a clear chain

7 of command in the Omarska camp and that there was a

8 clear -- and that the accused Prcac held the position

9 of deputy commander, with the authority to control the

10 conduct of the shift commanders, the guards, and

11 visitors, such as the accused Zigic. He also had the

12 authority to grant the prisoners more freedoms and

13 rights within the camp, including access to potable

14 water, reasonable living conditions, and hygienic

15 standards, and contact with their families and friends

16 to receive clothing, hygienic supplies, food, and

17 medicines.

18 As to the knowledge of the accused Dragoljub

19 Prcac about the nature of the camp's operation and his

20 criminal intention, the evidence shows that the accused

21 knowingly participated in the crimes that occurred in

22 the Omarska camp. During the commission of specific

23 crimes in the camp, the accused Prcac would, at times,

24 be present but would do nothing to stop the commission

25 of those crimes. On many occasions he called out

Page 1124

1 prisoners using lists that had been prepared. Those

2 prisoners were then beaten or tortured or disappeared.

3 He also permitted individuals from outside the camp,

4 such as the accused Zigic, to regularly enter Omarska

5 and to subject the prisoners to all forms of

6 maltreatment, including murder. The accused Prcac,

7 like Kvocka before him, manifested this conduct during

8 a period when he had considerable authority, and indeed

9 exercised the power of life and death over the

10 prisoners in Omarska.

11 The evidence will show that the accused Prcac

12 moved around the camp and was seen in all areas, unlike

13 the interrogators who apparently never moved around in

14 the camp. As a result, the accused would have been

15 intimately aware of the physical conditions of the

16 prisoners and the appalling nature of the conditions

17 they were existing in. The evidence will show that

18 when the commander of the camp, Zeljko Meakic, was not

19 in the camp, the accused Prcac was and served as the

20 commander or senior man in charge. The evidence will

21 show that before guards could act on certain requests

22 from the prisoners, they had to check with the

23 commander, Mr. Prcac. The evidence will show that the

24 accused Prcac had the authority to direct where

25 prisoners went in the camp, and if a guard disagreed,

Page 1125

1 it was the accused's word that prevailed. Finally, the

2 accused Prcac's failure to take reasonable steps to

3 prevent the crimes that were occurring or to try to

4 punish those that committed them, or to alter the

5 conditions of the confinement of the prisoners, was a

6 calculated disregard of his obligations as a policeman

7 in Bosnia-Herzegovina and those of a superior in the

8 Omarska camp. Such a cruel omission or failure to

9 exercise his obligations also created a powerful

10 inference of intent to participate in the repressive

11 system.

12 It is also relevant to recall that full

13 loyalty to the SDS and its programmes was a requirement

14 to hold any position of authority in any sector of

15 government or the economy at that time, including the

16 police service. The position of the deputy commander

17 of one of the most important camps was no small

18 position.

19 As the deputy commander of the camp,

20 Mr. Prcac's presence and his total failure to restrain

21 the guards' misconduct could have only encouraged the

22 continued abuse of prisoners by guards and so-called

23 visitors to the camp, such as the accused Zigic. By

24 standing by and providing this encouragement, Mr. Prcac

25 voluntarily participated in the common criminal design

Page 1126

1 that was the Omarska camp. Moreover, by presiding over

2 such criminal acts, the accused demonstrated his intent

3 that they occur. The result of his approval,

4 encouragement, and acquiescence in the conduct of the

5 guards and visitors, such as Zigic, at Omarska was

6 manifested in the many crimes that were committed

7 there, including, in the latter part of July, the

8 murder of a great number of prisoners who had been

9 captured in what's been referred to as the Brdo region,

10 on the left bank of the Sana River in the opstina

11 Prijedor. After those prisoners arrived in the camp,

12 they were subjected to brutal beatings and many were

13 killed.

14 The Omarska prison camp was at the vanguard

15 of the Bosnian Serb system of persecution and ethnic

16 cleansing. The day-to-day participation in and support

17 for the crimes that were committed in the Omarska camp

18 is evidence of the accused Prcac's intent to

19 participate in this system. The accused Prcac, along

20 with the other accused in this matter, shared the

21 common criminal design to persecute Muslims and Croats

22 in the Prijedor region so as to cleanse that region of

23 those who would not participate in the Serbian state.

24 Finally, the pervasive nature of the cruelty,

25 violence, and disregard for human life that existed in

Page 1127

1 the Omarska camp on a daily basis dictates that all of

2 the particular acts of violence and the crimes alleged

3 in the indictment fell within the natural, foreseeable,

4 and horrible consequences of the operation of the

5 Omarska camp.

6 The accused's continued and knowing

7 participation in the operation of the Omarska camp

8 makes him criminally responsible for all of the acts

9 alleged.

10 In summation, the evidence presented during

11 this trial will prove beyond a reasonable doubt that

12 the accused Prcac, along with the other four accused,

13 shared a common criminal purpose, the forced removal of

14 a majority of the Bosnian Muslims and Bosnian Croats

15 from the territory claimed as Republika Srpska through

16 a campaign of terror and persecution. To that end, the

17 accused Prcac and his co-accused, through their actions

18 in the Omarska camp, actively participated in this

19 common design, and in doing so bears responsibility for

20 the crimes against humanity and violations of the laws

21 of war that are charged in the indictment, both as an

22 individual and as a superior for his failure to take

23 reasonable steps to prevent the crimes from occurring

24 or for failing to punish those who committed the

25 crimes.

Page 1128

1 Thank you, Your Honour.

2 JUDGE RODRIGUES: [Interpretation] Thank you

3 very much, Mr. Keegan. I think that we are now going

4 to have a break.

5 Ms. Hollis, have you received any information

6 regarding the availability of the witness?

7 MS. HOLLIS: Your Honour, the witness is

8 available here, but I've received no indication as to

9 how quickly the witness will be in place.

10 JUDGE RODRIGUES: [Interpretation] We're going

11 to have a 25-minute break, then.

12 --- Recess taken at 10.20 a.m.

13 --- On resuming at 11.39 a.m.

14 [The witness entered court]

15 JUDGE RODRIGUES: [Interpretation] You may be

16 seated.

17 Ms. Hollis, you have the floor, and we have

18 the motions.

19 Excuse me. Mr. Simic, do you wish to say

20 something?

21 MR. K. SIMIC: [Interpretation] Your Honour, I

22 do not intend to enter a debate as regards the opening

23 statement of Mr. Keegan. However, I should like to

24 expose one objection of the Defence as a whole.

25 Mr. Keegan made an allegation during his

Page 1129

1 opening statement which may be a result of either

2 misinterpretation or a misunderstanding. He stated

3 that the accused are trying to place the blame on

4 Mr. Meakic, that is, to place the blame on some other

5 persons. I have to say that we have submitted

6 preliminary briefs that the accused have been

7 interviewed, that Mr. Kvocka and Mr. Radic have

8 testified, and I have to say that not at one point did

9 they ever try to put the blame on Mr. Meakic. They

10 were simply trying to explain the status of Mr. Meakic,

11 who was the commander of the police station in

12 Omarska. And the Prosecutor himself has quoted the

13 relevant decision in his opening statement a number of

14 times. We have to stress this because this may have

15 some adverse consequences for the Defence. This is a

16 public trial and we have to stress this, we have to

17 make this objection so as to avoid any adverse effect

18 on the Defence and any damage that may be caused to our

19 clients.

20 JUDGE RODRIGUES: [Interpretation] Thank you

21 very much.

22 Mr. Keegan, do you wish to respond?

23 MR. KEEGAN: No, Your Honour, we don't.

24 JUDGE RODRIGUES: [Interpretation] So it was

25 more of a rhetorical objection.

Page 1130

1 We have a witness here in the courtroom, but

2 it seems that Mr. Tosic has something to say.

3 Mr. Tosic.

4 MR. TOSIC: [Interpretation] Your Honour, I

5 just wish to put forth several facts. I don't know

6 whether the witness should remain in the courtroom.

7 This is something that I want to say before the

8 testimony of the witness. I should like the Court to

9 ask the witness to leave the courtroom because I have

10 something to say which bears on the preliminary matters

11 as regards the presentation of evidence. I did not

12 want to interrupt Mr. Keegan in his opening statement,

13 but I should like to speak now.

14 JUDGE RODRIGUES: [Interpretation] Mr. Tosic,

15 would it be possible for you to make your comment after

16 the testimony of this witness?

17 MR. TOSIC: [Interpretation] Your Honour, I

18 wish to say that before the beginning of the testimony,

19 because I believe that certain facts and certain

20 circumstances should be clarified before this witness

21 begins his testimony.

22 JUDGE RODRIGUES: [Interpretation] Yes, but

23 Mr. Tosic, you understand the proceedings. It is very

24 difficult to bring the witness in the courtroom and

25 then ask him to leave the courtroom. I mean, this does

Page 1131

1 not seem serious, a serious way of proceeding.

2 MR. TOSIC: [Interpretation] Your Honour, if

3 you do not think that the witness should leave the

4 courtroom, well, let him stay in the courtroom. But I

5 have to stress certain facts which bear upon his

6 testimony. I personally do not have anything against

7 his staying in the courtroom. Perhaps when I say what

8 I have to say, you will see whether it is necessary for

9 the witness to leave the courtroom or not.

10 JUDGE RODRIGUES: [Interpretation] Ms. Hollis,

11 do you have any information as regards the intervention

12 of Mr. Tosic?

13 MS. HOLLIS: Your Honour, the Prosecution

14 would suggest that to avoid any appearance that the

15 witness' testimony may be prejudiced by what he may

16 hear, that indeed if there are preliminary matters,

17 that he be asked to leave the courtroom so that those

18 preliminary matters can be discussed. That way, Your

19 Honour, there would not even be an appearance that this

20 witness' testimony was somehow influenced by whatever

21 it is that Mr. Tosic wishes to raise. So we would

22 agree with Mr. Tosic that caution would make it the

23 better practice for the witness to leave the courtroom

24 while he raises whatever concerns he has.

25 In addition, Your Honour, we do note that, of

Page 1132

1 course, the Defence has an opportunity to make an open

2 in response to ours, and since we did make an

3 additional open, we take Mr. Tosic's remarks to be

4 basically in a form of an opening in response to ours.

5 It could be that other of these Defence counsel also

6 wish to make similar remarks. If they do, of course it

7 is for Your Honours to determine whether they may do

8 so. But again, we believe it would be better for this

9 issue to be dealt with outside the presence of this

10 witness.

11 JUDGE RODRIGUES: [Interpretation] If I may

12 have a minute, please.

13 [Trial Chamber confers]

14 JUDGE RODRIGUES: [Interpretation] Witness, we

15 have to apologise for this, but we have to ask you to

16 leave the courtroom for a short period of time, and

17 afterwards you will be back. Thank you very much for

18 your understanding.

19 [The witness stands down]

20 JUDGE RODRIGUES: [Interpretation] Mr. Tosic,

21 it is always possible to tell the Judges that you

22 intend to say something before the witness is brought

23 in. I think that this is the procedure that should be

24 observed. If there is a motion, it has to be made

25 orally, after having consulted the other party. In

Page 1133

1 that way, we can proceed in a more efficient manner.

2 And now you have the floor, Mr. Tosic. Let

3 us hear you.

4 MR. TOSIC: [Interpretation] Your Honours, our

5 position is the following: We do not wish to have

6 testimony of the witness before a Status Conference,

7 and I think that the reasons will justify our motion.

8 As regards the indictment; namely, the

9 amended indictment with Mr. Prcac, we have not yet

10 received it. I do not think that any changes in terms

11 of identity have been added to the indictment. What we

12 have now is the indictment from July 1999, and in

13 accordance with Rule 50 of the Rules of Procedure and

14 Evidence, we believe that this indictment should be

15 made available to us; namely, the amended indictment.

16 We do not wish to obstruct the proceedings in

17 any way. I shall say that we will waive our right to

18 object to the amended indictment. However, I must

19 stress that we do not have the amended indictment. We

20 assumed that no changes as regards the identity have

21 been added to the indictment, and I believe that the

22 charges have remained the same as regards my client.

23 However, I must say that I have not seen the amended

24 indictment, neither has my client. And we believe that

25 this amended indictment should be made available to the

Page 1134

1 Defence before the presentation of evidence, before we

2 start with the testimony of the witness.

3 Furthermore, as regards the facts --

4 non-contested facts, there are 444 of them, and I am

5 not in a position to state our view of the facts. We

6 have already discussed them during the last Status

7 Conference, but I have to say that I do not -- I don't

8 know what these facts are all about. I haven't

9 received a copy of the translation. I don't know

10 whether we're talking about some new facts or whether

11 these are the previous 583 facts, or if this is a

12 summary of the facts that we have already received.

13 As regards the motion submitted by the

14 Prosecutor, dated February 2000, we are not familiar

15 with the contents of the motion and we cannot state our

16 position. The Prosecutor has suggested that we should

17 use trial summaries from some other cases. I have to

18 say that we have received only a list of witnesses. I

19 can only surmise as to the identity of the witness that

20 we have today in the courtroom, but that is all. I

21 think that we should have been provided with a list of

22 witnesses at least one week beforehand so that we could

23 prepare ourselves in a timely fashion for our defence.

24 As far as I know, the witness who has just

25 left the courtroom, Mr. Emir Beganovic, testified in

Page 1135

1 the Tadic case. I do not know what the position of the

2 Chamber is. The Prosecutor has requested that the

3 testimony from the Tadic case should be admitted. But

4 I still don't know whether we should be allowed to

5 cross-examine the witness in question.

6 So these are the circumstances that should be

7 dealt with at the Status Conference. These are the

8 matters that should be taken care of before we begin

9 with the testimony of the witness. That is what I had

10 to say, Your Honour.

11 If I may add just one thing. The documents I

12 have referred to have not been translated, witness

13 summaries, trial summaries, nor the facts, adjudicated

14 facts. I don't know about my colleagues, but I have

15 received the relevant documentation only this morning.

16 So I don't think that it would be appropriate for us to

17 begin with the testimony of the witness before we have

18 resolved all the procedural matters. I think it is

19 inappropriate that we should not have the amended

20 indictment and that we should be using the indictment

21 dated from the previous year. We have five accused

22 here, and I think that all of the Defence counsel

23 should be made familiar with the amended indictment.

24 I'm speaking on behalf of my client, but also on behalf

25 of the Defence as a whole. We do not intend to object

Page 1136

1 to the indictment or to obstruct the proceedings in any

2 way. We will waive our right to do that. But we are

3 simply asking for this indictment to be made available

4 for us. We need some time to read it, and afterwards

5 we will state officially that we will waive our right

6 to object to the indictment. We need to know that

7 nothing of a significance has been changed.

8 And again I must stress that it is highly

9 inappropriate for us to discuss something that we have

10 not seen. I wanted this matter to be entered in the

11 record, to be made part of the record, before we start

12 with the proceedings of the presentation of evidence.

13 There is a number of things that have to be dealt with

14 prior to the testimony of the witness. It is all the

15 same for us as regards the timing of the testimony,

16 whether we should begin today or tomorrow, but these

17 are matters that cannot be circumvented or bypassed.

18 We have seen the witness but we don't know

19 exactly about his identity. We are from the relevant

20 area, and that's why we happened to know who the

21 witness is. But you said that I should have addressed

22 the Chamber beforehand, before the witness enters the

23 courtroom. But we were simply not in a position to do

24 so because we didn't know who would be the next

25 witness. It is only at the beginning of the session --

Page 1137

1 I believe that we should enter the courtroom first and

2 that only then the witness should be called in. I did

3 not wish to interrupt the proceedings before the break

4 because Mr. Keegan was having his opening statement,

5 and I don't think that it was appropriate for the

6 witness to be brought into the courtroom before we have

7 settled all the procedural matters as regards the

8 presentation of evidence.

9 On the other hand, I do object on the course

10 of action taken by the Prosecutor. I think that it was

11 necessary for us to be informed about the witness who

12 was supposed to testify today. I know that we have had

13 enough time to prepare ourselves, but we should have

14 made -- we should have been informed about the identity

15 of the witness. We should have been told explicitly

16 that Emir Beganovic would testify. We cannot surmise

17 as to the order of witnesses. We do not know, for

18 example, who will be the next witness tomorrow. If we

19 finish the testimony of this witness in half an hour,

20 we are not in a position to know anything about the

21 next witness. And there are a number of things that we

22 have to discuss with our clients, things that they may

23 have remembered in the meantime and that concern the

24 relevant witness.

25 Therefore, I think that all these matters

Page 1138

1 should be resolved at a Status Conference, as has been

2 suggested by Ms. Hollis, and then only after that, that

3 we should begin with the presentation of evidence;

4 namely, the testimony of various witnesses. Thank you

5 very much.

6 JUDGE RODRIGUES: [Interpretation] Thank you,

7 Mr. Tosic. We have to have in mind the need to proceed

8 in a speedy and efficient manner, and we wanted to have

9 a joinder of the accused in this case, we wanted to

10 proceed with the accused Prcac, and we thought that you

11 would be ready for the proceedings. It is true that we

12 announced a Status Conference, but maybe it was not

13 clear whether the Status Conference would take place at

14 the beginning or at the end of the week. But be that

15 as it may, I shall now give the floor to Ms. Hollis, to

16 give her an opportunity to respond to the motion by the

17 Defence.

18 Ms. Hollis.

19 MS. HOLLIS: Thank you, Your Honour. Your

20 Honour, I'll try to touch on all the different matters

21 that were raised by Defence counsel.

22 Involving the amended indictment, of course,

23 the procedure that was followed is we had a joinder, as

24 you indicated, and the Court ruled on a joinder. It is

25 the Prosecution's understanding that, indeed, the

Page 1139

1 Defence has a copy of the Prcac indictment, so indeed

2 they have a copy of the indictments on which we are

3 proceeding. That's our first point as to the

4 indictment. So, indeed, they do have a copy of the

5 relevant indictments on which we're proceeding in this

6 case.

7 Secondly, regarding the facts that were

8 submitted, it is the Prosecution's understanding that

9 as of our last discussion, we were asked to provide

10 again the facts that had been agreed upon by all the

11 parties with another cover sheet and another filing.

12 We did that. So that, indeed, what has been provided

13 to this counsel are the facts that they have previously

14 agreed to, and that was filed on the 28th. But the

15 facts are the same that have been agreed to since the

16 Status Conference on the 24th of February, with the

17 four accused previously in the case, and the facts that

18 the Defence counsel for Mr. Prcac agreed to in our

19 Status Conference regarding him.

20 Your Honour, as to the motion we referred to

21 of February of 2000, the Defence should have been, and

22 we believe were, served a copy of that motion when it

23 was filed. So we believe they would have that motion

24 in their possession and could have reviewed it.

25 JUDGE WALD: Excuse me, Ms. Hollis. Which

Page 1140

1 motion? You just gave us the date.

2 MS. HOLLIS: Your Honour, I believe the

3 counsel is referring to a motion which we adopt as part

4 of our argument on judicial notice, and that would have

5 been a motion that we did file. It would have been a

6 motion that should have been served on the counsel, and

7 we believe that they had it when we had our previous

8 discussions on judicial motion.

9 JUDGE WALD: Does that include the requests

10 in your current motion? I did get a chance to get a

11 hold of it during the recess. Your request in the

12 current motion that the Chamber make findings based on

13 the judicial notice?

14 MS. HOLLIS: Your Honour, my recollection is

15 that that matter was raised in our Status Conference on

16 the 24th of February with the Defence counsel present.

17 The motion prior to that I don't believe may have

18 addressed that particular point. But that matter was

19 raised in February in our Status Conference at which

20 these counsel were present.

21 Your Honour, regarding the list of witnesses,

22 the current order of witnesses, a courtesy copy of that

23 was placed in the lockers for four of the accused

24 counsel on Thursday evening. The order was filed on

25 Friday, the 28th. The counsel for Mr. Prcac had a

Page 1141

1 locker but the guard at this security -- outside

2 security desk did not have the number of the locker.

3 So on Thursday evening, the 27th, we were unable to put

4 the courtesy copy into his locker. But the very next

5 morning, at the beginning of business, a courtesy copy

6 was provided to the Defence unit to be provided to

7 counsel for Mr. Simic. So service was made of a

8 courtesy copy on four of the counsel on the evening of

9 27 April and the notice was filed on the 28th, and a

10 courtesy copy was provided through the Defence unit to

11 Mr. Prcac's counsel. So indeed since Friday, at least,

12 counsel would have known who our first witness is, and

13 that's Mr. Emir Beganovic, as it is listed on that

14 order.

15 In regard to objections about trial

16 summaries, trial transcripts, the first witness is a

17 witness for whom we will be offering both a trial

18 summary and a trial transcript. So perhaps it is

19 appropriate to deal with that matter before the witness

20 is brought back in.

21 In regard to the translation of these items,

22 Your Honours, our understanding is that Rule 66 sets

23 forth two categories of disclosure that must be

24 provided in a language the accused understands. The

25 first of those is the confirmation material. That was

Page 1142

1 done. The second of those are statements of witnesses

2 we intend to call. That has been done. The trial

3 summaries, we do not believe, are statements of the

4 witnesses, and we have not provided those in B/C/S.

5 The adjudicated facts and other motions, there is no

6 requirement we're aware of that we provide those in

7 B/C/S. Indeed, Your Honours, it is our understanding

8 that one of the requirements for counsel to practice

9 before this Tribunal is that at least someone on the

10 team is able to operate in one of the two languages of

11 the Tribunal. So to the extent that is a problem,

12 perhaps we should address that early on in the case.

13 But we believe we have provided the appropriate

14 materials in the language of the accused, and the other

15 types of materials that Defence counsel addresses, in

16 our opinion, do not have to be provided to the counsel

17 in B/C/S.

18 Your Honour, if I have failed to address any

19 of the points, please remind me and I will address

20 them.

21 JUDGE WALD: I have one question. In your

22 opinion, will inquiry, and particularly

23 cross-examination, of the witness who's now waiting

24 outside involve some of the requests you made for the

25 way in which cross-examination should be required and

Page 1143

1 limited, which I've only had a chance to glance at at

2 the recess?

3 MS. HOLLIS: Yes, Your Honour. We believe

4 that it will for all of these witnesses, even those

5 without prior testimony, because of the number of

6 Defence counsel who will be questioning the witness.

7 So again that is a procedure --

8 JUDGE WALD: That is something which Defence

9 counsel got, they did get that motion which contains

10 that requested limits or order of cross-examination?

11 MS. HOLLIS: That was filed on Friday, Your

12 Honour. That is part of the additional matters.

13 JUDGE WALD: It's in the same motion with the

14 summaries, but I don't know whether they've had a

15 chance to look at it or not before they began any --

16 MS. HOLLIS: That I don't know, Your Honour.

17 JUDGE RODRIGUES: [Interpretation] Mr. Tosic.

18 MR. TOSIC: [Interpretation] Your Honour, with

19 all due respect to the Prosecution, I personally never

20 received the indictment for Mr. Prcac. I don't know

21 about other Defence counsel. But I have not received

22 it, nor my client.

23 JUDGE RODRIGUES: [Interpretation] Excuse me

24 for interrupting you, but the indictment is a public

25 act, a public document, isn't it, Mr. Dubuisson?

Page 1144

1 THE REGISTRAR: [Interpretation] Yes, indeed,

2 it is a public document.

3 JUDGE RODRIGUES: [Interpretation] You may

4 continue, Mr. Tosic.

5 MR. TOSIC: [Interpretation] As regards the

6 second matter, the generally established facts, it is

7 not true that all of us Defence counsel, before

8 Mr. Prcac joined us, agreed with those facts. As far

9 as I know, out of the 583, Mr. Simic and I did not

10 agree with a large number of those facts. So that we

11 cannot accept the statement by Ms. Hollis that we have

12 agreed on all those facts.

13 As for the order of witnesses, I agree, we

14 were given a list of witnesses but no additional

15 information to tell us whether the Prosecution will

16 abide by that order of witnesses. So if that is the

17 final list in which the witnesses will be called, then

18 I hope we will be so informed.

19 As for the translation issue, we received

20 mostly the English, not even the French versions, and

21 as far as I know, not one of my colleagues, or our

22 clients, have received the motions or these facts or

23 any other documents in our own language. I apologise.

24 We received the French version and not the English

25 version. That was my mistake.

Page 1145

1 JUDGE RODRIGUES: [Interpretation] Mr. Fila, I

2 can see that you're on your feet.

3 MR. FILA: [Interpretation] Mr. President, I

4 had not intended to join in this discussion, but we

5 were promised that we would be given statements by two

6 witnesses today, and we haven't received that. They

7 are Witnesses AG and AH, completely new witnesses who

8 were never mentioned before, and we were told in the

9 motion submitted by the Prosecution, given to us on

10 Friday night -- I must point out that we had a weekend

11 and we had a holiday yesterday, our clients have been

12 in detention for two years, and suddenly we're given

13 these documents are given to us overnight. But these

14 statements were promised to us, and to this moment, we

15 haven't received those statements. We haven't received

16 another nine statements which were due to us. I am not

17 trying to criticise anybody, but you will receive my

18 response to what I received Friday night. But, you

19 know, it is rather difficult for all of us to get

20 together and agree on our responses. Otherwise, the

21 trial will last very long. And we must have time, at

22 least 24 hours, to study things. Even the promised

23 statements have not reached me of those two witnesses.

24 And I think that we should respect one another's

25 words. I think you know what I mean.

Page 1146

1 JUDGE RODRIGUES: [Interpretation] Perhaps it

2 would be better to say -- to hear the Defence and then

3 have the response of the Prosecution. Otherwise we'll

4 never leave here.

5 Mr. Nikolic now.

6 MR. NIKOLIC: [Interpretation] Your Honour,

7 allow me to briefly join in this discussion regarding

8 certain points that have been raised here.

9 The motions of the Prosecution are dated the

10 28th of April. That is when a list of witnesses was

11 submitted which differs significantly from the previous

12 list of proposed witnesses and which were covered by

13 the Prosecution's motion compiled in accordance with

14 Rule 65 ter. This new motion, with the new list of

15 witnesses, was not compiled in accordance with the

16 provisions of Rule 65 ter. We received last night, in

17 our locker, something that looks like that and which is

18 also dated the 28th of April; however, at first glance

19 are these technical errors or something, but they do

20 take time.

21 Jasmir Okic is mentioned here under number

22 12. In the list of witnesses, he comes under number

23 9. All the other numbering of witnesses from this

24 motion, which should correspond to 65 ter, does not

25 correspond to the numbering in the list of witnesses

Page 1147

1 submitted on the 28th of April, except for the two last

2 ones.

3 Secondly, no where is mention made of which

4 circumstances the witness is going to testify and in

5 reference to which accused, as required by the

6 provisions of Rule 65 ter.

7 So these are problems confronting the

8 Defence, especially now, two days prior to trial, and I

9 will use the words used by Judge Wald when she said,

10 "It isn't reasonable," because we had quite a long

11 recess, and the Defence could have studied all these

12 things in a timely fashion, instead of talking about

13 them now, documents that we received last night. There

14 are 444 adjudicated facts. Just to look through that

15 list requires time. Thank you, Your Honour.

16 JUDGE RODRIGUES: [Interpretation] Thank you,

17 Mr. Nikolic. I think now we have to give the floor to

18 Mr. Simic.

19 MR. K. SIMIC: [Interpretation] Thank you,

20 Your Honour. I had not intended to speak, but as the

21 discussion is broadening, I feel it necessary to

22 express my position.

23 Indeed, it is rather unusual, after two years

24 of preparations, that we should encounter so many

25 technical errors on the part of the Prosecution.

Page 1148

1 However, if the Trial Chamber rules that we should hear

2 Mr. Beganovic as a witness, since he is already here, I

3 would suggest that today we have the

4 examination-in-chief in the classical manner, without

5 tendering the transcript or the summary, that we

6 respect the Rules, and only as of future witnesses we

7 apply the Rules that may be adopted tomorrow at the

8 Status Conference. We would indeed like this trial to

9 be as efficient as possible, that we avoid any waste of

10 time, because after all, this is a serious case.

11 JUDGE RODRIGUES: [Interpretation] Yes. Thank

12 you.

13 Mr. Jovan Simic now. Do you have any

14 observations or comments to make?

15 MR. J. SIMIC: [Interpretation] Your Honour, I

16 would not really have anything much to add to what my

17 colleagues have said. But I would like to say,

18 regarding the witnesses that apply to my client, I have

19 not received all the statements -- I do not have the

20 statements of the witnesses who are going to testify

21 about my client.

22 JUDGE RODRIGUES: [Interpretation] Ms. Hollis

23 now.

24 MS. HOLLIS: Your Honour, we have made

25 disclosure to Mr. Prcac's counsel. We have continued

Page 1149

1 to make disclosure to Mr. Prcac's counsel. And we are

2 aware that there are some statements, and I'm not -- I

3 can't tell you at this moment how many, that need to be

4 provided in the B/C/S. The translation unit, which is

5 not part of the Office of the Prosecutor, is working on

6 that. We do not have those. But to say he has not

7 received statements of witnesses relevant to his

8 client, we suggest, is not correct. Any witness who

9 testifies about what happened in Omarska camp during

10 the period Mr. Prcac was there is a witness relevant to

11 Mr. Prcac, at least in the Prosecution's submission.

12 In regard to the issue of the translations,

13 again that comes back to what is required for us to

14 provide in B/C/S and what other kinds of documents the

15 Defence may need to have in B/C/S. We believe we have

16 complied, with a few exceptions, with our requirement

17 to provide the documents in B/C/S that are required of

18 us. If the Defence counsel are having difficulties

19 because they do not have the material in a language

20 that they understand, that needs to be raised and it

21 needs to be sorted out; we agree with that. But that

22 is not a matter that is the responsibility of the

23 Prosecution. And again we believe it needs to be

24 sorted out in light of the practice rules for Defence

25 counsel who appear before this Tribunal.

Page 1150

1 Mr. Emir Beganovic was listed as our number 1

2 witness in a notice to the Defence. It was given to

3 them on the 6th of March. Now, our witness list did

4 change, and indeed, on the 28th we did file a notice,

5 and it was a notice of change of witness list. And as

6 I mentioned before, they were given -- four of the

7 accused counsel were given a copy of that the night

8 before we filed it, and counsel for Mr. Prcac was given

9 a courtesy copy of that Friday morning through the

10 Defence unit. So we did provide that.

11 We also provided the transcript of the prior

12 testimony of Mr. Beganovic in the lockers, and that was

13 provided -- that may have been provided over the

14 weekend, Your Honour.

15 And I'm not sure I have addressed all of

16 those issues. But, indeed, the witness order was made

17 known to them. We did provide the materials, at least

18 over the weekend, for them regarding Emir Beganovic.

19 With regard to witnesses who were referred to

20 as AG and AH, those witnesses are witnesses who have

21 particular circumstances and we indicated that we would

22 provide the statements relevant to those witnesses once

23 we have a decision about protective measures. We did

24 not provide it to the counsel prior to them because we

25 want the Trial Chamber to act on protective measures

Page 1151

1 before we disclose to the Defence the identity of those

2 two witnesses. They are not witnesses that are in our

3 first four or five or six who will be called, and that

4 is the reason that they were not provided those

5 statements. And we indicated that we would be

6 providing them when we had the Status Conference, which

7 I as I mentioned earlier, the Prosecution believed

8 would have been the first order of business for us

9 today.

10 Your Honours, if there are other matters that

11 I have not addressed, if you will ask me any questions

12 you have, I will address them.

13 Your Honour, also one final thing about why,

14 at this late date, we are changing witness orders, that

15 will be raised in the protective measures motion

16 tomorrow, or whenever we deal with that, because the

17 Prosecution feels a very compelling need to inform this

18 Trial Chamber of the various difficulties potential

19 witnesses are having in this case. And we will take

20 that, I believe, more appropriately in a private or

21 closed session. But that is the primary reason for the

22 change in our witness list, Your Honour.

23 JUDGE WALD: Ms. Hollis, let me get your

24 reaction to the Defence counsel, Mr. Simic's, I think,

25 proposal that for the remainder of today we might take

Page 1152

1 the first witness on direct and then reserve the

2 questions raised in your motions for tomorrow's Status

3 Conference when they can hopefully be decided. Is that

4 a doable scenario from your point of view?

5 MS. HOLLIS: Your Honour, there are certainly

6 areas that are not covered by the prior testimony that

7 we could begin with today, and then once we determine

8 prior testimony, we will know whether we need to lead

9 that evidence or not. So we could certainly make a

10 start with this witness before introducing the prior

11 testimony.

12 JUDGE RODRIGUES: [Interpretation] Very well.

13 I think that we can all see that it is always more

14 difficult to get started again, because, after all, all

15 of us, the Judges and the Defence, received a large

16 pile of documents on Friday and we saw them for the

17 first time during the break. What the Chamber had

18 planned was to make the best of the time, and we

19 thought that by hearing testimony would be a way to do

20 that, and then to have a Status Conference at which we

21 can discuss matters and deal with them.

22 So we have two possibilities now: either we

23 discuss the motion for protective measures in order to

24 begin the testimony with all the witnesses, or we begin

25 only with the examination-in-chief of this witness and

Page 1153

1 deal with all the other matters afterwards. So in any

2 event, as we had planned to have the Status Conference

3 tomorrow, at 3.30, that is, after the normal working

4 day, perhaps it is too late now because we have to do

5 something tomorrow morning. And also there's the

6 problem of witnesses and their position, because

7 they're here and waiting. Perhaps, however, in order

8 to be more efficient, it would be better to have a

9 discussion on the motion now regarding the protection

10 of witnesses and then we could be ready for tomorrow,

11 and all the other matters could be discussed at the

12 Status Conference tomorrow at 3.30.

13 I should like, however, to hear Ms. Hollis

14 and perhaps the Defence as a reaction to what I have

15 said.

16 [Trial Chamber confers]

17 JUDGE RODRIGUES: [Interpretation] Excuse me.

18 Ms. Hollis.

19 MS. HOLLIS: Your Honour, because Witnesses

20 2, 3, and 4 are the subject of our written motion for

21 protective measures, or will be the subject of oral

22 motions for protective measures, we agree that it would

23 be expeditious to deal with that motion today. That

24 way, we wouldn't have to interrupt proceedings tomorrow

25 when we call Witness number 2 and possibly number 3.

Page 1154

1 We do agree with that suggestion, that we deal with

2 that motion today.

3 JUDGE RODRIGUES: [Interpretation] Thank you,

4 Ms. Hollis. I should like to confer with each of

5 Defence counsel quickly.

6 Mr. Simic.

7 MR. K. SIMIC: [Interpretation] Your Honour, I

8 support the proposal that we deal with this matter

9 today.

10 JUDGE RODRIGUES: [Interpretation] Thank you.

11 Mr. Nikolic.

12 MR. NIKOLIC: [Interpretation] We agree, Your

13 Honour.

14 JUDGE RODRIGUES: [Interpretation] Mr. Fila.

15 MR. FILA: [Interpretation] I agree,

16 Mr. President.

17 JUDGE RODRIGUES: [Interpretation] Thank you

18 very much. Mr. Tosic.

19 MR. TOSIC: [Interpretation] Your Honour, our

20 position is the one I presented a moment ago, that is,

21 that we first deal with all the procedural matters and

22 then hear the testimony of the witness. Thank you.

23 JUDGE RODRIGUES: [Interpretation] Mr. Simic.

24 MR. J. SIMIC: [Interpretation] We agree, Your

25 Honour.

Page 1155

1 JUDGE RODRIGUES: [Interpretation] Perhaps we

2 should have a short break for the Defence to be able to

3 familiarise themselves with this motion, after which we

4 will resume work and make the best of all the time at

5 our disposal, until 2.30, to discuss this motion for

6 protective measures and possibly to deal with other

7 matters as well, if possible. So I'm making this break

8 for us to be able to reorganise a little, and if I may

9 suggest that we have the discussion in closed session.

10 Is that agreeable, Ms. Hollis?

11 MS. HOLLIS: We would request that, Your

12 Honour.

13 JUDGE RODRIGUES: [Interpretation] Very well.

14 I'm saying that for the benefit of the public, so that

15 when we will be talking about protective measures, we

16 are going to have a closed hearing after the break.

17 And the break will be for 20 minutes.

18 --- Whereupon the hearing adjourned at

19 12.27 p.m., to be followed by a Status

20 Conference






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