1 Thursday, 3rd June, 1999
2 (Pre-trial Hearing)
3 (Open session)
4 (The accused entered court)
5 --- Upon commencing at 3.00 p.m.
6 THE REGISTRAR: Good afternoon, Your
7 Honours. This is case number IT-98-30-PT, the
8 Prosecutor versus Miroslav Kvocka, Milojica Kos, Mladjo
9 Radic, and Zoran Zigic.
10 JUDGE MAY: Appearances, please?
11 MR. NIEMANN: If Your Honours please, my name
12 is Niemann; I appear with my colleagues Mr. Keegan and
13 Mr. Waidyaratne for the Prosecution, Your Honours.
14 JUDGE MAY: For the Defence?
15 MR. SIMIC: (Interpretation) Your Honours,
16 Mr. President, I'm Krstan Simic, and I'm here on behalf
17 of the first accused, Miroslav Kvocka.
18 MR. NIKOLIC: (Interpretation) Your Honours,
19 my name is Zarko Nikolic, and I'm the Defence counsel,
20 together with Ms. Jelena Nikolic, I'm representing
21 Milojica Kos.
22 MR. FILA: (Interpretation) Your Honours, I'm
23 Toma Fila and Vladimir Petrovic. I am here to represent
24 Mladjo Radic. Thank you.
25 MR. TOSIC: (Interpretation) Your Honours, I'm
1 Simo Tosic, defending Zoran Zigic. Lawyer Jelena
2 Lopicic from Belgrade is not here, unfortunately,
3 because her attendance here was not approved. I think
4 this is wrong, because I believe that her attendance
5 here should have been approved. My office is in Banja
6 Luka, her office is in Belgrade, and in view of this
7 and the state of war in the Federal Republic of
8 Yugoslavia, the communication between our two offices
9 is very difficult, and for this reason we believe that
10 in future, we should indeed be allowed to both be
11 present at these sessions. Thank you.
12 It would also be necessary, in the future, to
13 be allowed to both attend Status Conferences and the
14 trial. In all the other cases, legal counsel are
15 allowed to attend all the sessions, and we see no
16 reason why this should not be the same case in this
17 particular instance. Thank you.
18 JUDGE MAY: We'll have the matter looked
19 into, Mr. Tosic, and if anything needs to be done, it
20 will be.
21 MR. TOSIC: (Interpretation) Thank you, Your
23 JUDGE MAY: This is a Status Conference. The
24 items which I have for discussion are these: First of
25 all, the status of disclosure; the status of witness
1 protection; the requirements of the Rules for pre-trial
2 briefs and the like; the amended indictment; the
3 question of access to the shift statements from the
4 police station; the status of inquiries into
5 depositions; and finally any queries about detention.
6 There is one other matter, which would be
7 normally the question of setting date for trial. I
8 have to tell you that this Trial Chamber is engaged in
9 two cases, both substantial, and therefore, at the
10 moment, it's not possible to fix a date for this
11 trial. But arrangements in the Tribunal can never be
12 fixed completely, and experience shows that there may
13 be changes -- sometimes last-minute changes -- of plan,
14 and for the moment, we will have in mind the necessity
15 of starting this trial expeditiously, and we shall make
16 every endeavour to find a date for it, but further than
17 that, today, I can't go. And of course it's in
18 connection with that that I made the original
19 suggestion about depositions.
20 Could we begin by matters of disclosure? I
21 should say if there's anything else that anybody wishes
22 to raise, of course, there will be opportunity to do
23 so. But these are the matters which the Trial Chamber
24 has in mind.
25 And perhaps, Mr. Niemann, you could begin on
1 that, dealing first of all with the witness statements
2 and confirming, if you would, that they have been
3 disclosed in Bosnian/Croatian/Serbian.
4 MR. NIEMANN: Yes, Your Honours. Our
5 position at the moment is that we have progressively
6 disclosed all of the statements that we would foresee
7 as being witnesses in the case, as well as statements
8 of witnesses who may be available to the Defence under
9 Rules such as Rule 68. There are still a number of
10 documents which are to be translated, but we anticipate
11 to be in a position to make them available, probably
12 within the course of the next 14 days.
13 Your Honours, just in relation to that, our
14 position at the moment is that we are up to date in
15 disclosing what material we believe we had used for
16 trial. The only caveat we put on that is that, of
17 course, as evidence comes to light, we may seek to
18 either call additional witnesses or substitute
19 witnesses. In the event that we do that, we will of
20 course disclose it immediately that decision is made.
21 JUDGE MAY: And in relation --
22 MR. NIEMANN: Excuse me.
23 JUDGE MAY: In relation to the disclosure,
24 could we detail the position about the disclosure of
25 witness names? There have been problems in some cases
1 where names haven't been disclosed, the intention being
2 that pseudonyms will be obtained in due course.
3 MR. NIEMANN: Yes, Your Honour, pseudonyms,
4 and in fact the witnesses were originally referred to
5 by reference to numbers. The history of that, because
6 it arose in the course of dealing with these
7 depositions, Your Honour, I'll ask my colleague
8 Mr. Keegan to outline the history of that, Your Honour,
9 because he is more familiar with the dates and so forth
10 in relation to that.
11 MR. KEEGAN: Thank you, Your Honour. Thus
12 far, as you have indicated, Your Honour, all of the
13 witnesses' statements have been disclosed, given a
14 number, and up to this date, only Mr. Fila's associate,
15 with respect to the deposition motion, requested
16 identification of the names that went with those
17 numbers with respect to the witnesses that were
18 proposed for depositions.
19 We have prepared, however, a table, and it
20 would be available after this session, at the end of
21 the day, for disclosure, if it's necessary, if
22 requested, of all of the names that go with the
23 corresponding numbers, but obviously that would be a
24 confidential document subject to the prior witness
25 protection order of the Trial Chamber of -- I believe
1 it's 18 December or 12 December, from that hearing we
3 In addition, there are, of course, still
4 certain witnesses who are the subject of protective
5 measures, protective orders from prior trials, and so
6 those witnesses we would intend to remain as
7 pseudonymed witnesses, the letter pseudonyms, because
8 of the prior rulings that protective orders continue in
9 force unless otherwise ordered. So even on this list
10 of numbered and named -- the table, certain witnesses,
11 principally from the Tadic and Kovacevic trials, who
12 were subject to protective orders would remain as
13 pseudonymed witnesses until otherwise ordered. That
14 would be our position at this point.
15 JUDGE MAY: But at some stage, presumably,
16 the identifications and names will be disclosed?
17 MR. KEEGAN: Yes, Your Honour. Upon request,
18 we are prepared, as I said, to identify the names to
19 all the statements other than those witnesses who are
20 under existing protection orders from the prior trials.
21 JUDGE MAY: But it will be for you,
22 presumably, to go back to those Chambers, insofar as
23 it's possible, and get a release from those orders.
24 MR. KEEGAN: Upon specific request, yes, Your
1 JUDGE MAY: Well, if we make that request
2 now, you could be starting with the work.
3 MR. KEEGAN: Yes, Your Honour, we could.
4 JUDGE MAY: It would seem to be sensible to
5 deal with it as soon as possible, so that the Defence
6 have the material, and to disclose your table today,
7 any such disclosure subject to the usual
8 confidentiality order.
9 MR. KEEGAN: Yes, Your Honour. With respect
10 to those pseudonymed witnesses, what we would prefer, I
11 believe -- and Mr. Niemann may correct me on this,
12 because obviously we hadn't talked about this
13 completely -- but what we would prefer, if you will, is
14 essentially to transfer those protective orders to this
15 Trial Chamber for the time being, until such time when
16 we can contact all of the witnesses to determine
17 whether they wish to continue -- they would make the
18 request to continue under those protective measures.
19 We would then go through the process of
20 requesting the same or similar protections for orders
21 from this Trial Chamber, because those witnesses,
22 obviously the burden was established of the necessity
23 for protective measures in past trials. Those
24 circumstances still exist, in our estimation. We would
25 first need to confirm that with the witnesses, and then
1 second, we would move before this Trial Chamber for
2 similar protective measures. We would request the
3 right to keep those names withheld until that process
4 is concluded, and obviously we would move as
5 expeditiously as possible in that regard, but we're
6 only talking about, I think, eight or ten witnesses at
7 the most. All of the rest of the names would be
8 disclosed, subject to the existing protective measures
9 that we have in this Trial Chamber.
10 JUDGE MAY: So what you propose is that you
11 would disclose the table today; in regard to the eight
12 to ten witnesses, you would ask that their names be
13 withheld until you've had an opportunity of consulting
14 with the particular witnesses, in which case you would
15 apply to this Trial Chamber for protection? Is that
16 the position?
17 MR. KEEGAN: Yes, Your Honour. Or, if the
18 witness indicates that they no longer have the concerns
19 which generated the protective measures in the first
20 place, we'd simply move to cancel the prior orders and
21 produce their names.
22 JUDGE MAY: Yes. How long do you want to do
23 that? 28 days?
24 MR. KEEGAN: Yes, sir, that would be
1 JUDGE MAY: How many witnesses, in all, are
2 we talking about now?
3 MR. KEEGAN: Thus far, Your Honour, we have
4 disclosed a total of 96 witness statements and/or
5 transcripts. And with respect, your question about the
6 provision of the translations in B/C/S, we in fact met
7 with a couple of the Defence counsel yesterday. We are
8 still awaiting a determination of whether the prior
9 transcripts are in B/C/S; it's still not clear to us
10 whether they have to be translated, and we're simply
11 waiting for an answer from the records section on
12 that. And then there were about, I think, eight
13 statements, another eight statements that we're still
14 awaiting the translations on. They have been
15 submitted, and we just haven't got the translations.
16 But except for those, all the rest have been provided
17 in B/C/S.
18 JUDGE BENNOUNA: (Interpretation) Mr. Keegan,
19 are you planning to call all those witnesses, all those
20 whose statements you have provided by now, that is, 96
21 plus eight, which is 104? Are you planning to call all
22 those witnesses here to appear before the Tribunal or
23 will you make a distinction between those who will be
24 making their depositions and those who will be called
25 to testify here? This is the first question I have.
1 And the second, have you estimated the time
2 that you will need for those witnesses?
3 MR. KEEGAN: No, Your Honour. It is our
4 intention to try and stick to the original estimate of
5 about 80 witnesses for the case for the Prosecution.
6 What we can tell you today is which of those witnesses
7 disclosed will comprise that final 80, because new
8 witnesses are identified, and it will depend, of
9 course, on the other matters, pre-trial matters, as
10 they are decided in this case and the briefs and other
11 things as the issues are flushed out, which of the
12 witnesses are called for sure.
13 The deposition witnesses is something that is
14 on the agenda to be discussed, but we had prepared
15 to -- we're obviously prepared to discuss that. If,
16 for example, we take the Defence objections and simply
17 follow those, in looking at our list, the list is down
18 to about 18 witnesses that would be potentially -- of
19 that list that we provided originally, that would be
20 possible to use depositions for. Even there, it may
21 be, for example, that we decide that we don't need all
22 of those 18, and depositions may be even smaller. We
23 can discuss the more-detailed mechanics of the
24 depositions relating to some of the other issues raised
25 later, if you prefer.
1 But our position now is, no, our intent would
2 not be to call 96 or more than that. We're going to
3 try to stick to the 80, which was the original
5 JUDGE MAY: Very well. We'll come back to
6 the depositions in due course.
7 The next matter which I had was the
8 requirements of 73 bis.
9 The Prosecution pre-trial brief has been
10 filed, and I take it that everybody has that.
11 Dealing with the other matters in the Rule,
12 dealing with admissions and contested matters of fact
13 and law and exhibits, perhaps the Prosecution can tell
14 us what their position is, please.
15 MR. NIEMANN: Your Honours, with relation to
16 admissions of the parties and statements of contested
17 matters of fact and law, for the Prosecution this
18 becomes a bit of a guessing game as to what that is,
19 because it really is for the Defence to indicate to us
20 whether there are any matters which are not in
22 In relation to statement of contested matters
23 of fact and law, we're generally confronted with the
24 situation that all matters are contested, unless
25 advised otherwise. So I'm afraid that it's difficult
1 for us to indicate much in terms of what we would
2 perceive as the matters that are going to be contested
3 and matters which aren't, save and except perhaps any
4 questions of fact which have been resolved through the
5 process of the adjudicated facts motion, and Your
6 Honours have ruled on that.
7 Insofar as those matters have been resolved,
8 one could say that there is agreement on that. But
9 save and except that, Your Honours, we're not in a
10 position to indicate anything. But we do invite,
11 certainly, the Defence to communicate with us, either
12 through Your Honours or directly with us, on such
13 matters, and we would be happy to entertain discussions
14 in relation to those matters.
15 JUDGE MAY: Perhaps while you're on your
16 feet, you could deal, please, with number 4, which
17 concerns the witnesses you intend to call, and a
18 summary of facts on which each will testify, and an
19 estimate of the length of time. Are those matters in
21 MR. NIEMANN: Well, Your Honours, we had
22 expected or anticipated that orders may be made today
23 in relation to those matters, and we would expect to be
24 required to provide that at some stage prior to the
25 commencement of the trial, and we anticipate such an
2 I don't know whether Your Honours require us
3 to summarise the facts in relation to the witnesses,
4 having regard to the fact there has been disclosure,
5 but no doubt that could be attended to if that was
6 considered necessary.
7 (Trial Chamber confers)
8 JUDGE MAY: We shall make orders in relation
9 to the witnesses, the summaries, the points to which
10 each will testify and the estimated length of time, the
11 Prosecution to serve in two months.
12 MR. NIEMANN: Is that in two months of the
13 commencement of the trial, Your Honours, may I
15 JUDGE MAY: Yes, it's two months as of now.
16 JUDGE BENNOUNA: (Interpretation) Mr. Niemann,
17 I should simply like to remind you concerning the
19 The Chamber is not waiting for the summaries
20 for purely informal reasons, because we've had some
21 unfortunate experience with summaries which did not
22 serve any purpose, I mean summaries which said that
23 there is such person who was at such and such place and
24 he met another so and so at some other place, and it
25 could apply to anything or anyone, so that I should
1 like to insist in this particular case that these
2 summaries are made with the strict view of helping the
3 Chamber to get directly to the point about which the
4 whole testimony is about so as to enable us to arrive
5 at the truth. That is, we should learn from the
6 summary which are different points which can be singled
7 out from each and every testimony, and we also want to
8 have a general summary which would represent a
9 synthesis from which we could glean the strategy and
10 what you're trying to draw out of all those different
11 summaries. So this is very important.
12 I mean a summary, as such, is not important.
13 What is important is what is in it, and will you please
14 always bear in mind that one needs to serve the course
15 for which we are all here, and that is the course of
16 truth, and thus these summaries should help us to
17 immediately see what is it that one needs to focus in
18 that particular case and to help us arrive at the truth
19 in this case.
20 MR. NIEMANN: Your Honours, I can advise Your
21 Honours that you can be rest assured that we will do
22 everything we can to assist the Chamber, and indeed we
23 see that as our duty.
24 My concern about what Your Honours requested
25 is that this becomes a bigger undertaking than just
1 providing a short assessment of what each witness is
2 going to say if one is to go into such things as
3 analyses, which is normally one of the matters that I
4 would have attended to in the course of my opening
6 My concern, Your Honours, is that we believe
7 that it would be preferable to give the details of
8 these summaries and the order of witnesses and so forth
9 at a time close to the commencement of trial, lest we
10 be in a position where we would be seeking to perhaps
11 not call certain witnesses and wanting to make
12 variations when we get to the trial itself. This is
13 complicated by the fact that we don't know at this
14 stage which witnesses will be taken by depositions and
15 which witnesses will be called.
16 JUDGE MAY: Mr. Niemann, I think we've got
17 that in mind, but the problem is that we can't fix a
18 date for trial. It's easier to deal with these matters
19 if one can. So it would seem sensible to try and
20 prepare as much as possible with, of course, it being
21 kept in mind that nobody can foresee precisely what's
22 going to happen. No one is going to hold you to the
23 witnesses who you put forward if there are changes of
25 (Trial Chamber confers)
1 JUDGE MAY: Mr. Niemann, Judge Bennouna
2 raises the point as to whether you want more time to
3 prepare than two months.
4 MR. NIEMANN: Well, Your Honours, the point I
5 make is that if the trial is not likely to be, having
6 regard to the deposition process, if that goes ahead,
7 the trial is not likely to be some considerable time
8 down the track, it would certainly -- the more time we
9 can have, the better product we can produce to satisfy
10 the requirements as outlined by Judge Bennouna.
11 JUDGE MAY: Very well. We'll say three
13 MR. NIEMANN: If Your Honours please, thank
15 JUDGE MAY: I turn next to the Defence.
16 The Trial Chamber, under Rule 73 bis, may
17 order the Defence at a Pre-Trial Conference to file a
18 statement of admitted facts and law and a pre-trial
19 brief addressing the factual and legal issues not later
20 than seven days prior to the date set for trial. We
21 would have in mind making orders of that sort.
22 Again, we recognise that, of course, we are
23 dealing with a case where we don't have a set date for
24 trial, but the earlier it may be that the issues are
25 clarified, the better it is for all of us.
1 Is there any reason why we should not order a
2 filing from each defendant on the admitted facts and
3 law and a pre-trial brief addressing the factual and
4 legal issues, so in answer to the Prosecution pre-trial
5 brief, in three months? Is there any opposition to
6 such a suggestion?
7 MR. SIMIC: (Interpretation) The Defence has
8 no objections, and we will accept your suggestions,
9 Your Honour.
10 MR. NIKOLIC: (Interpretation) I second my
11 colleague, Mr. Simic.
12 MR. FILA: (Interpretation) Your Honours, no
13 objections to our making our submissions within the
14 given deadline, both with respect to the brief and the
16 I am in an awkward situation to speak of
17 things which I have not actually seen, because to date
18 I have not received a copy of the amended indictment.
19 What I wanted to say is we should make a certain
20 distinction without trying to minimise the significance
21 of any of the witnesses or among different facts, and
22 in the spirit of speeding up the whole process, we
23 would like to suggest that the Prosecution come up with
24 a list of such witnesses, with full names and
25 statements, which they intend to have examined outside
1 of the trial so that we can get going, because we still
2 don't know, out of these 98 statements, which witnesses
3 it is that the Prosecutors actually are going to be
4 calling here and which ones are going to be deposed
5 somewhere else, and I don't know where that is going to
7 So for me, this is a key issue at this Status
8 Conference, because within this period of three months
9 while we wait, we could use this time very well. We
10 could reduce the number of these witnesses to a
11 minimum. I proposed 14 witnesses which we can depose
12 in this matter, and I have submitted the list. So for
13 us, this is the key issue.
14 Again, without trying to minimise the
15 significance of these witnesses, they do not need any
16 special protective measures, and I believe that my
17 colleagues, Mr. Niemann and Keegan, will agree with
18 this. We can right away determine where these
19 witnesses are going to be examined, and we can come to
20 a decision today.
21 For those for which the Prosecution deems as
22 necessary to be granted protective measures, within
23 this period of three months we can find some time to
24 deal with those. I believe that this is something that
25 is acceptable for both parties and that would
1 accelerate the whole process, because it has been 14
2 months since these accused have been detained, and
3 there is obviously a new workload coming from my
4 suffering country, and so I think we need to get
6 Whatever the Prosecution had submitted to us,
7 we have given our positions, what was acceptable and
8 what was unacceptable to us, but I expect a certain
9 amount of initiative on the part of the Prosecution to
10 see what it is that we are actually coming with at
11 trial, and we will give our positions.
12 The Trial Chamber has ruled on the motions
13 which we have submitted. There is a new indictment, an
14 amended indictment.
15 I am not going to make a pre-trial brief. I
16 am just going to have the opening statement, and I'm
17 going to reduce that, but I think that we need to do
18 whatever we can so that we can come to the trial the
19 best prepared.
20 I think that we should really focus to only
21 those witnesses who would testify to whether any of the
22 accused has actually committed the crimes for which
23 they are accused, in other words, whether they were in
24 Omarska and what facts they know, and there will not be
25 that many witnesses who will testify to that.
1 This is my position, and I thank you for
2 hearing me out.
3 MR. TOSIC: (Interpretation) Your Honours, the
4 Defence of Zoran Zigic accepts in full the proposals of
5 the Trial Chamber, and just for the economy of the
6 trial, I think that we need to discuss where and when
7 these witnesses who are in the territory of the
8 Republika Srpska should be deposed.
9 Thank you.
10 JUDGE MAY: We will come to the question of
11 depositions shortly, but let me then make an order
12 under 73 bis (F), ordering those matters within three
13 months. Those are the matters I've already mentioned
14 for the Defence to file.
15 I want to turn just to deal with two other
16 matters before we come to the depositions, and that is
17 the amended indictment.
18 If I didn't say so, three months to file the
19 Defence documents.
20 Moving to the amended indictment, does
21 anybody want to make any submissions about that or time
22 to make submissions? Anything you want to say about
23 it? Mr. Keegan?
24 MR. KEEGAN: Just only with respect to the
25 issue Mr. Fila raised, that he hadn't received a copy
1 yet, it appears that we were given inadvertently the
2 wrong locker number, so it was put in the wrong locker
3 downstairs for the Defence, and we were informed that
4 he hadn't gotten it just before coming in here this
5 afternoon, Your Honour. So that has been rectified, so
6 it is available.
7 JUDGE MAY: Well, if there are any
8 submissions, they should be made within 14 days. So if
9 anybody for the Defence wants to raise anything in
10 relation to the amended indictment, they can have 14
12 The next matter is the police station shift
14 The history of that matter is that the
15 Prosecution have not been successful, as I recollect,
16 have asked the Trial Chamber to raise the matter, and I
17 take it we have done. I'll just ask the legal officer
18 to confirm that.
19 (Trial Chamber confers)
20 JUDGE MAY: Yes. The formal request was made
21 on the 29th of April, and we are awaiting a response
22 from the Prosecution.
23 MR. NIEMANN: Your Honours, representatives
24 from the Ministry of Justice of the Republika Srpska
25 met with the Prosecutor in Sarajevo on the 8th of May,
1 1999, and said that the matter was in hand but it was
2 very difficult to find the documents, despite every
3 effort to do so, and that's the latest position with
4 respect to that.
5 JUDGE MAY: Thank you. Mr. Fila?
6 MR. FILA: (Interpretation) Your Honour, I
7 feel morally obliged, since I raised this issue, to
8 show you -- I'm not sure who is supposed to be doing
9 what. I have this document. It has been translated
10 into English, but it only refers to the accused Radic.
11 I can show it to the Prosecution, I can show it to you,
12 because I told you the last time that I had seen it,
13 and here it is.
14 But the previous Defence counsel was given
15 only a portion of it, which refers to Mladjo Radic. In
16 other words, it was the other three accused were not
17 covered. So what I have is going to explain the legal
18 position of my client and perhaps Mr. Kos, and I can
19 provide you with a copy of it whenever you want, if
20 anybody questions the existence of this list. I can
21 give you a letter which was -- a cover letter which
22 came from the Ministry of Justice. If you wish, I can
23 show it to you, a copy of it.
24 JUDGE MAY: What is the date, Mr. Fila, of
25 the letter from the Ministry of Justice?
1 MR. FILA: (Interpretation) 12 May '98, and it
2 is in English, so you can actually review it. The
3 original in Serbo-Croatian is in my hands, but I have a
4 copy of the translation. So the usher could probably
5 assist you.
6 JUDGE MAY: If you could hand it in, please.
7 MR. FILA: (Interpretation) Of course. This
8 is a copy, and the original is here.
9 (Trial Chamber confers)
10 MR. FILA: (Interpretation) My apologies, Your
11 Honours. Here are these long pieces of paper with
12 stamps, but we couldn't copy them properly, so it was
13 done with two copies each, and I can show you the
14 original, obviously.
15 JUDGE BENNOUNA: (Interpretation) Could we
16 know if other Defence counsel, other Defence lawyers,
17 have made similar moves to obtain these documents or
18 not? Have other legal counsel made the same steps to
19 obtain those documents?
20 MR. FILA: (Interpretation) Your Honour, this
21 is what happened. Mr. Guberina, who was Defence
22 counsel for Mr. Radic before me, had asked for it, and
23 this was provided to him. So I sort of inherited it, I
24 reviewed it, and I was told that I could not get it for
25 other accused and for other Defence counsel because it
1 was confidential, that I could only get it for my own
3 I asked about it after the session here. I
4 don't know what happened since. There may have been
5 difficulties. But my colleague who preceded me had
6 received it. And there are names of people who
7 provided this list who state it there.
8 And the best proof that this is an authentic
9 document is that it does not suit me very well.
10 Mr. Radic and I were wrong, but it suits other of the
11 defendants. That is the assistance that I can
13 JUDGE MAY: Would it be sensible for this
14 document to be disclosed to the Prosecution, and
15 then -- and other Defence counsel? If they want to
16 pursue the matter further, it can be pursued; or
17 otherwise, if this is sufficient, then there is no need
18 to take the matter any further. I think it's simplest
19 to be left to counsel.
20 MR. SIMIC: (Interpretation) Your Honours, I
21 had an opportunity to see this ledger. This is a log,
22 and after your suggestion, I tried to get the book and
23 was told that the book has been lost. I think that
24 this is information provided to the Prosecution on the
25 31st. However, today, I saw that this is an authentic
1 excerpt from this logbook, with only the times of
2 beginning and end of shift. Since that time, the
3 logbook has been lost. All it is is a logbook which
4 has noted the times of when certain individual officers
5 came to work and left. There is also a witness on my
6 witness list who compiled these logs, and I think that
7 these persons shall be able to provide further
8 clarifications of this. Thank you.
9 JUDGE MAY: Very well. We won't take that
10 matter any further at the moment.
11 We come now to the question of depositions.
12 The original suggestion came from the Trial Chamber,
13 having regard to the need to try and expedite matters,
14 and was a suggestion for the hearing, at least of some
15 witnesses, by way of deposition. We invited the
16 parties to respond, which they have done, but the
17 result is not, frankly, very clear.
18 The principle, I think, is accepted on the
19 whole. The purpose would be to have the evidence taken
20 by a presiding officer -- who, because of the pressure
21 of work, could not be a Judge of this Trial Chamber,
22 but would have to be a suitably qualified presiding
23 officer appointed for the purpose -- that the evidence
24 would be taken down -- recorded, rather, by way of a
25 video recording; that the usual rules of the giving of
1 evidence would apply; and it would mean that while the
2 witness would not appear in person before the Trial
3 Chamber, there would be a video recording of that
4 person's evidence for the Trial Chamber to see and in
5 that way receive the evidence.
6 The advantage it has, obviously, in a case
7 like this, where there is no certain date for starting,
8 is that it enables some of the evidence, at least, to
9 be taken in advance, and will therefore save time at
10 the trial proper and use the time between now and the
11 trial as well as can be done.
12 The initial response from the Prosecution was
13 a very large one; I don't know if they've had a chance
14 of reconsidering their position. The response from the
15 Defence is also rather varied. It does seem to me,
16 although some counsel are still to respond, it is a
17 matter which should proceed, if possible, by way of
18 agreement between the parties, and I wondered if
19 counsel had had an opportunity of discussing this
20 matter recently while everyone's been in The Hague.
21 MR. KEEGAN: No, Your Honour, we haven't
22 fully discussed it. Some of the counsel only arrived
23 last night, I believe. But if they're going to be
24 here, we are certainly prepared to discuss it.
25 As I indicated earlier, we have done some
1 consideration of our list, just taking the Defence
2 responses as gathered thus far, and their objections
3 falling into two primary grounds: One, of -- they
4 object if they're a direct witness, that is, say
5 something directly about one of the named accused; and
6 the issue of judicial economy.
7 We have several proposals in mind with
8 regards to where and how the depositions could be
9 taken, should we get to that point, and we've contacted
10 some of the witnesses -- for example, Judge Greve -- to
11 determine her schedule, since she's now a judge of the
12 European Court of Human Rights. We are prepared to
13 discuss it in concrete terms.
14 JUDGE MAY: How many witnesses would you now
16 MR. NIEMANN: Sorry about this hopping up and
17 down, Your Honour. Going on what the Defence has
18 raised, their objections, we have come up with a new
19 list of approximately 20 witnesses, but we wouldn't
20 like that to be seen as absolute in terms. I mean, I
21 think that the suggestion made by Your Honours that
22 this matter be resolved by discussion is indeed the
23 best way to go, and I think that with discussions
24 between the parties, we may be able to expand from that
25 if necessary.
1 It seems that any evidence of any witnesses
2 that are not directly related to the offences charged,
3 in terms of eyewitnesses to events as such, we could
4 try and deal with by this process, and we would
5 endeavour to do that. But we have prepared a list, and
6 taking into account the objections raised, we come up
7 with a figure of some 20 witnesses, Your Honour.
8 JUDGE MAY: So how would you propose that we
9 go from here?
10 MR. NIEMANN: Well, Your Honours, I think
11 that from what I've been able to see with respect to
12 the responses and so forth, there hasn't been raised
13 any particular opposition to the process as such. The
14 only opposition raised is in relation to which
15 witnesses will be dealt with. We initially gave a very
16 large number, really because we wanted to say that the
17 position of the Prosecution was that, if necessary, we
18 would be happy to deal with all of them by the process
19 of deposition. Obviously that was affected by the
20 reaction from the Defence. So, taking into account,
21 that's how we come up with this figure.
22 The process that we would see is that if the
23 Chamber is minded to make such an order, that either
24 Your Honours could indicate in general terms that
25 evidence will be taken by deposition and that someone
1 will be appointed as presiding officer, and then I
2 think that the best approach from there on in is for us
3 to meet with the presiding officer at some set time and
4 then just proceed by working out the logistics, bearing
5 in mind any constraints that the Chamber may wish to
6 impose upon the parties in relation to this process.
7 JUDGE MAY: I just wonder, as a matter of
8 formality, whether we can make a general order in those
9 terms. Having regard to 71(b), I suppose what we could
10 do is say, in general terms, that we will make such an
11 order, subject to the agreement of the parties; and in
12 due course, the parties having agreed the matter, we
13 could either formally make the order, with the
14 witnesses' names on, or we could summon another Status
15 Conference to resolve it, although I would hope we
16 could do it, perhaps, without that.
17 MR. NIEMANN: That may not be necessary, Your
18 Honours. I think if Your Honours encouraged the
19 parties to meet, we can do that and determine such
20 things as witnesses and where statements will be taken
21 and any other matters that may arise, perhaps with
22 liberty of the parties to apply in the event that there
23 would be some irresolvable dispute, which -- I can't
24 imagine that's going to happen.
25 The point, though, that I think is important
1 is that at some early stage, the presiding officer be
2 appointed and the presiding officer be authorised to
3 call a meeting of the parties, because it seems to me
4 that much of the matters which may be discussed would
5 have to be settled under the supervision of the
6 presiding officer.
7 In terms of where witnesses are going to be
8 taken, I don't imagine the presiding officer
9 determining which witnesses -- that would be matter of
10 the Chamber -- but I would imagine that places of
11 taking depositions, times, and so forth, all of which
12 are important when it comes to reaching agreement on
13 these matters, would be very useful.
14 THE INTERPRETER: Could you slow down,
15 please, for the interpreters, Mr. Niemann.
16 MR. NIEMANN: I'm sorry.
17 JUDGE MAY: So you would foresee an order, as
18 it were, in these terms: Parties to discuss deposition
19 evidence; to report within 28 days, or something of the
20 sort; the Trial Chamber to appoint a presiding officer,
21 14 days, with a view to calling a meeting, and an order
22 for depositions in something like six weeks? That sort
23 of timing?
24 MR. NIEMANN: That sort of timing, I think,
25 would be very helpful, Your Honour, yes, and an order
1 along that line would he helpful.
2 JUDGE MAY: I'll just speak to the legal
3 officer before I call on the Defence.
4 (Trial Chamber confers)
5 JUDGE MAY: Mr. Fila, let me just -- before
6 calling on you, just say what at the moment we have in
7 mind, which would be to suggest a meeting, while you're
8 all in The Hague, with the Prosecution to start this
9 matter, and that there should be an agreed list of
10 witnesses submitted to the Trial Chamber within 28 days
11 together with a note as to their whereabouts. The
12 procedure we would suggest is that once we have that
13 list, we will appoint a presiding officer and determine
14 the best place for the depositions to be taken, having
15 in mind that of course it will partly depend on where
16 the presiding officer can actually sit. So there are a
17 number of considerations, obviously, to be borne in
18 mind before we can make the final order.
19 Having said that, that is merely what we have
20 in mind at the moment, and that is that you meet --
21 first, an important step is that the parties all meet
22 together and you have a conference with the Prosecutor
23 and try and work out between you which of the witnesses
24 are suitable and which aren't and then report that to
1 Yes, Mr. Fila?
2 MR. FILA: (Interpretation) Mr. President,
3 that would be an excellent idea if we knew who those
4 witnesses were going to be and what they would be
5 testifying to. We still do not know which witnesses
6 the Prosecution should like to examine through
7 deposition, so I should like to hear from the
8 Prosecutor's office the period of time within which
9 they will propose the list of witnesses whose
10 testimonies would be taken by deposition, and then to
11 meet with them and only then -- that is, after that, we
12 could discuss it with our clients, with the defendants,
13 to see if they agree with that or not.
14 That is one thing. The second thing, I
15 suggested that the evidence be taken by deposition from
16 13 witnesses, and I have submitted this, and I have not
17 yet received an answer to that. I even submitted their
18 names, and I have not heard whether they agree with
19 that or not.
20 Before we hold a meeting, if it is to be
21 fruitful, the Defence team, as such, should like to
22 invite the Prosecutor's office to give us the list of
23 witnesses whose testimony should be made through
24 deposition. After that, we would also submit our list,
25 the list of the witnesses that would also be questioned
1 out of this Court in this manner, and then we would
2 meet and agree. In principle, the Defence thought we
3 should not be accepting depositions of those witnesses
4 who would be asked to testify about specific crimes,
5 because that is one thing. When it comes to general
6 things, to character witnesses and things like that,
7 then it doesn't really matter.
8 So I'm really asking the Prosecution to write
9 their proposals, disclose, of course, the names of
10 those people, compile their list, and then we would
11 meet -- that is, the Defence team would meet with the
12 Prosecution's team, and then we shall say whether we
13 consent or not to that list and what are the names that
14 we consent to and which are not.
15 Likewise, the Prosecution should also read
16 the list of witnesses that we should like to question
17 in this manner, and only then can we really sit down
18 and discuss it. Also, our clients need to see those
19 lists, and I do not really know what I'm talking about
20 when it comes to witnesses, because I do not know
21 either those statements or anything, and the accused
22 have not yet received the indictment, to this day, for
23 instance; not even in English, let alone in Serbian.
24 So I think that it would be best if Mr.
25 Niemann or Mr. Keegan read out the list of those 20, or
1 30, or whatever the number of people, tell us who they
2 are, and then we shall tell them we agree about those
3 15 or those -- I don't know, 18 or 20, we accept all
4 those 20, say. It can be done, and I think it would
5 simplify matters. I believe Mr. Niemann could do it
6 within seven days, and then we would take another seven
7 days to answer their list, and within a fortnight's
8 time you would already have our definite answer, what
9 we can go along with and what we can't go along with.
10 I think it's quite simple. Thank you very much.
11 JUDGE MAY: Mr. Fila, I think we can do
12 better than that.
13 Is there any reason why the list of 20 names
14 shouldn't be handed over now?
15 MR. NIEMANN: We can hand over this list of
16 20 now, Your Honour; it is available. But as I say, I
17 would have thought that a meeting initially would have
18 been more fruitful, so that we could discuss just
19 precisely what the objections were. I mean, this
20 process is only going to function if the parties are in
21 agreement; otherwise the thing won't function at all
23 JUDGE MAY: I don't think it matters what way
24 you do it. I would suggest you have a meeting now and
25 decide at least the procedure that you're going to
1 follow, and from there I hope that you can make some
2 progress this weekend, rather than having to go home
3 and trying to do it all from there.
4 MR. FILA: (Interpretation) Your Honour, that
5 is not the problem. To begin with, we have not been
6 given their statements; secondly, we do not have the
7 indictments in a language we understand, nor have the
8 accused. So the four of us would have to meet, talk,
9 and agree about everything, and it can't be done in
10 half an hour. It's simply impossible to do it, and we
11 cannot assume the responsibility of doing something
12 which our clients will not agree with.
13 But I want to say that there is no dispute as
14 to how their evidence will be given. That is evidently
15 up to the Chamber to decide when, how, and whether it
16 will be over there or some other place. The people we
17 are proposing will all be heard in Banja Luka. Luka;
18 that is our proposal, and that is the nearest place
19 which is perhaps the most convenient.
20 JUDGE BENNOUNA: (Interpretation) Mr. Fila,
21 just one practical point of view. You are saying that
22 you do not have the statements, and you therefore
23 cannot know which witnesses we are talking about,
24 because you do not have the statements.
25 MR. FILA: (Interpretation) Yes, that is so.
1 JUDGE BENNOUNA: (Interpretation) Well, then,
2 but when you receive the amended indictment, these
3 statements, the proposed list prepared by the
4 Prosecution, and after you have received all that, how
5 long will you need to go through all that? Of course,
6 it is up to the Prosecution to tell us whether the
7 statements can be attached to the list; and the amended
8 indictment, you have already heard it was simply the
9 question of a misidentified locker, so you can have
11 But after you receive that, when do you
12 think -- after you have received all this information,
13 how long will it take for you to be able to give an
14 answer, that is, when could a meeting be held?
15 MR. FILA: (Interpretation) Well, to begin
16 with, the four of us will have to discuss the matter
17 and agree on our decision, and then we will of course
18 have to see it with them. But these statements must
19 also contain the names of those people, who are these
20 people, not number 8, or number 9, or X, Y, Z, or
22 JUDGE MAY: Mr. Fila, I thought the
23 Prosecution --
24 MR. FILA: (Interpretation) But if they hand
25 those things over to us today, then we shall be ready
1 by tomorrow. If we can get it today by 5.00, tomorrow
2 at noon you will have our answer.
3 JUDGE MAY: The Prosecution have said that
4 they have disclosed all the statements.
5 Now, Mr. Keegan, is that right?
6 MR. KEEGAN: Yes, Your Honour. We have
7 disclosed all of the statements.
8 JUDGE MAY: To Mr. Fila?
9 MR. KEEGAN: Yes, Your Honour.
10 JUDGE MAY: I don't know what you mean when
11 you say you haven't got the statements.
12 MR. FILA: But in whose locker are the
13 statements, and are the names and the surnames in those
14 statements? I do not know who those 20 are that you
15 are proposing. I have not seen it yet. If there are
16 those 20 with names and surnames, who are these
17 persons? Who are these individuals? Those individuals
18 have their first names and their last names, and if I
19 get it in the Serbian language today by 5.00, you will
20 have the answer tomorrow by noon, by 12.00. Faster
21 than that, we can't.
22 MR. NIEMANN: Your Honours, the list of 20
23 was drawn up about an hour ago to satisfy the Defence
24 objections. No, Mr. Fila hasn't got the list of 20;
25 yes, he does have the statements. And we did say that
1 we could make the list available to him and identify
2 the numbers of the witness statements which
4 But there are other issues that he is
5 raising, too, which I don't think I can resolve by way
6 of discussion. He seems to say that he needs time to
7 consider the indictment before he can consider this
8 issue, and there is the other issue which I thought a
9 meeting of the parties would be useful, and that is
10 that not all counsel are in the same position, as it
11 were, in relation to this process. But it seems that
12 time needs to be set aside. If Mr. Fila says he needs
13 to consider the indictment, I don't know what the
14 relationship is, but no doubt he has his reasons. But
15 that seems to be another issue.
16 JUDGE MAY: Well, let's --
17 MR. FILA: (Interpretation) Your Honour, may I
18 ask, how can I tell you which are the reasons for the
19 consideration of something that I've never seen, and
20 how long I will need to think about something that I
21 have not seen? I don't know what the indictment says.
22 I really don't know how much time I need to go through
23 it. I haven't been given the names of those 20
24 individuals, and yet you want me to tell you how much
25 time I need.
1 I repeat, give me the names of those 20
2 individuals, give me the translated indictments, and
3 you will have our answer tomorrow by 1.00, and
4 disclosure, so all the Prosecution has to do is give it
5 to us by midnight today.
6 JUDGE MAY: Are there any other Defence
8 You want to say something?
9 MR. FILA: (Interpretation) Yes, and the
10 Prosecution should also say what they think about our
11 proposals and give us the statement. We have not heard
12 from them whether they agree that these witnesses be
14 JUDGE MAY: I want to hear from other Defence
15 counsel. Now, let us go on.
16 Yes. Mr. Simic, yes.
17 MR. SIMIC: (Interpretation) Your Honours, we
18 were very happy when we heard the suggestion of the
19 Trial Chamber what to do to make the whole procedure
20 more expeditious and save time and money. However, the
21 idea which was voiced by the Trial Chamber was
22 misinterpreted by the Prosecution, because Rule 71 is
23 very specific in this manner, very precise. We
24 expected that our learned friends from the Prosecutor's
25 office would submit the names of witnesses and
1 summaries of those witnesses and that we would be ready
2 today. In this regard, we did respond to the request
3 of the Prosecution. We submitted the list of 22
4 witnesses whose evidence -- who could give their
5 evidence by deposition, and we said that they could all
6 be grouped over several days, and that that would add
7 to the efficiency of the trial. And yet, today, we
8 seem to be discussing matters as if this were the first
9 time that we were meeting. And we really should very
10 much like that time which we have until the beginning
11 of the trial, to use this time as best we can.
12 Thus, Mr. Kvocka's Defence has submitted a
13 list of witnesses, the circumstances about which they
14 should testify, and everything else, by complying with
15 the suggestions made by the Trial Chamber. I don't
16 think we do not have to go again into a repeat sterile
17 discussion that would not yield any result. We
18 expected the Prosecution to tell us today which ones of
19 the witnesses proposed by our Defence, by Mr. Kos's
20 Defence, by Mr. Radic's Defence, which ones of them
21 they find acceptable and which ones they do not, but we
22 have not yet heard their answer.
23 So we still have those 22 witnesses or 21
24 witnesses, and we are expecting the Prosecution to
25 comply with their obligation in accordance with Rule 71
1 to submit the list of their witnesses to see who might
2 be giving their evidence by deposition and to give
3 us -- to disclose the names and all the other things
4 that they are under obligation to do. But I'm afraid
5 that all this discussion will again take us nowhere.
6 Thank you.
7 JUDGE MAY: I'm surprised that nobody seems
8 to think it sensible that the parties should meet and
9 discuss these matters round a table rather than making
10 submissions to this Trial Chamber.
12 MR. NIKOLIC: (Interpretation) Your Honours, I
13 shall try to avoid any repetition, but all these things
14 that we are considering today, I shall try to use an
15 illustration. At the Status Conference held last
16 September, Mr. Niemann told you that the Prosecutor's
17 office was planning to call 75 witnesses to testify
18 before the Court and that they would need eight weeks.
19 It is page 27 of the transcript, 3 to 11.
20 You then issued the order, and the Defence
21 was handed over the list of witnesses who would testify
22 under Rule 71. This is the list, but here we have only
23 the names of witnesses and the states or countries that
24 they are in at present, and yet under Schedule D we
25 were also to be handed over the statements of those
2 Mr. Keegan said that only Mr. Fila's office
3 was disclosed the names. The Defence of the accused
4 Kos was in touch with them and learned that it wasn't
5 24 witnesses but 23 witnesses, because Senad Cirkic and
6 another one are identified under Number 2; that is, two
7 persons under one and the same number. We studied the
8 statements of 23 witnesses, and we made our submission
9 in answer to the Prosecution's proposal.
10 We have no objection, and I also would like
11 to ask, if the Prosecution can do it while we are still
12 here, could we be given this? Now it's come down to 20
13 witnesses, because out of 73, we've come down to 20
14 witnesses. Could the Prosecution give us at that
15 meeting both the list and the statements? If it can be
16 done today, as Mr. Fila said, we shall all do it
17 overnight. We shall also have the opportunity of
18 talking to our clients in the detention unit, but we
19 shall be able to see what these statements say and then
20 give our consent. I mean, we really don't feel --
21 we're really loath of writing new submissions, or new
22 motions, or whatever, but today, if it could be done
23 today, then we can study all those documents, discuss
24 them with our clients, and have it all over and done
25 with by tomorrow noon.
1 JUDGE MAY: Mr. Nikolic, will you be in The
2 Hague tomorrow?
3 THE INTERPRETER: Microphone, please.
4 Mr. Nikolic's microphone is off.
5 MR. NIKOLIC: (Interpretation) Yes, Your
6 Honours, I shall be in The Hague tomorrow, and I shall
7 be here on Saturday. All the Defence counsel will be
8 here. We are all going back on Sunday.
9 JUDGE MAY: And if therefore we ordered
10 you --
11 THE INTERPRETER: "What about the meeting,"
12 somebody is saying, but the interpreter doesn't know
14 JUDGE MAY: Please do not interrupt, because
15 interpreting makes it very much more difficult.
16 Now, if we were to direct you, the parties,
17 counsel, to have a meeting in the next 24 hours or so,
18 is there any reason why you should not be able to
19 attend such a meeting with a view to moving things
21 MR. NIKOLIC: (Interpretation) No, absolutely
22 no reason why we couldn't do that at all, Your
24 JUDGE MAY: Thank you.
25 MR. TOSIC: (Interpretation) Your Honours, to
1 save time, I shall avoid repetition.
2 I fully endorse all that my colleagues have
3 already said, but all the material needs to be handed
4 over to us. We do not have the indictment, we do not
5 have witness statements in Serbian, and the Defence
6 cannot go through those documents, nor can we discuss
7 them with our clients. So we really need to see those
8 documents today.
9 As for the meeting, there should be no
10 problem at all, because we are all here until Sunday,
11 and we can meet with the Prosecution any time, provided
12 that all these statements are handed over to us today
13 in the Serbian language, because we simply have no
14 other possibility of going through them, either we, as
15 counsel for the Defence, or our clients.
16 (Trial Chamber confers)
17 JUDGE MAY: Mr. Keegan, I do not understand
18 this point about the statements. Now, you say you've
19 disclosed them?
20 MR. KEEGAN: Yes, Your Honour. I think what
21 we're talking about is the issue of the statements were
22 originally disclosed only with the number, the coded
23 number, and when this product was issued, it was issued
24 with names. The Defence to this point haven't been
25 given the full list of corresponding numbers to the
1 names. That, I think, is the issue they are dealing
2 with. That is what we will provide today at the close
3 of these proceedings.
4 JUDGE MAY: Very well, if that's the issue.
5 The orders that we make are that counsel are
6 to meet within 24 hours to clarify the issues as to the
7 taking of depositions, within 28 days to agree to a
8 list of witnesses for whom depositions are to be taken,
9 and to report to the Trial Chamber, together with a
10 note as to the whereabouts of the witnesses. In that
11 way, I hope it will be possible for the Trial Chamber
12 to make suitable orders, having appointed a reporting
13 officer for the taking of depositions in the
14 not-too-distant future. But I do stress that these are
15 matters which very much depend on the cooperation of
16 the parties in order to achieve the goal that we've set
18 The other matter concerns the conditions of
19 detention, and I'll ask the legal officer to remind me
20 of the relevant Rule, please.
21 (Trial Chamber confers)
22 JUDGE MAY: Rule 65 bis, which covers this
23 conference, I notice has as one of its purposes to
24 organise exchanges between the parties so as to ensure
25 expeditious preparation for trial. It also requires
1 the Chamber to review the status of the case and to
2 allow the accused the opportunity to raise issues
3 thereto, including the mental and physical condition of
4 the accused.
5 Now, does any counsel wish to raise any
6 matter in relation to that?
7 Do any of the accused want to raise
9 Very well. We'll adjourn the matter, save to
10 say this, that we ought formally to fix another date,
11 which we do. There may well have to be an earlier
12 conference and, as I said, that we have in mind the
13 necessity of fixing a date for trial in this case as
14 early as possible. But meanwhile, we wish to ensure
15 that depositions are taken.
16 The conference should take place in the week
17 commencing the 27th of September. If that is a Monday,
18 that may be as suitable a day as any. Is that a
20 MR. NIEMANN: Yes.
21 JUDGE MAY: 2.30 that day.
22 We'll adjourn until then.
23 --- Whereupon the hearing adjourned at
24 4.38 p.m., to be reconvened on
25 Monday, the 27th day of September,
1 1999, at 2.30 p.m.