Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5983

1 Friday, 7 July 2006

2 [Pre-Defence Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.00 a.m.

6 JUDGE MOLOTO: Good morning, everybody.

7 This is the Pre-Defence conference. I hope we all have a copy of

8 the agenda. We just have to look at the filings that have been made by

9 the Defence.

10 Mr. Milovancevic, just by way of introduction, can I just ask a

11 question? I see that only a few witnesses are mentioned by name. Is

12 there any reason why the rest are not?

13 MR. MILOVANCEVIC: [No interpretation].

14 JUDGE MOLOTO: Can you hold on? I get no interpretation coming

15 through.

16 THE INTERPRETER: Can you hear the English?

17 JUDGE MOLOTO: Now, I can hear English. Can you start all over

18 again, Mr. Milovancevic? Otherwise it's all lost.

19 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.

20 Yes, indeed, we mention the names of just a few witnesses, and the

21 reason for that is that the Defence, when it compiled the witness list,

22 did not have the possibility of conducting proofing sessions with the

23 witnesses. These are individuals who mostly, and the majority of them are

24 from the Republic of Srpska Krajina, there are warrants out for them

25 issued by the Croatian authorities, some of them have long prison

Page 5984

1 sentences up to them, and they fear for their safety, both here and on the

2 way to the Tribunal. So the Defence quite simply, before talking and

3 interviewing the witnesses, could not assess in the proper way of which of

4 these concerns that these people have are realistic and well founded, but

5 will do so as soon as possible, Your Honour, once we have a chance to talk

6 to these people and after we have the recess -- or during the recess we

7 will be able to contact those witnesses.

8 JUDGE MOLOTO: Okay. Thank you very much, Mr. Milovancevic.

9 Mr. Whiting, do you have anything to say?

10 MR. WHITING: I certainly do, Your Honour.

11 I'm quite taken aback by this course of action that the Defence

12 has taken on. I have to say that it's -- the Defence is trying to

13 accomplish indirectly what it failed to accomplish directly; that is, it

14 was trying to -- repeatedly tried to postpone the start of the Defence

15 case, trying to buy more time, and when it was -- when this was refused

16 repeatedly by the Trial Chamber, what the Defence has done is it has now

17 failed to comply with the Rules, and it is simply indirectly trying to

18 gain more time, trying to postpone the start of the Defence case, trying

19 to prejudice the Prosecution in its preparation of -- in its preparation

20 to deal and respond to the Defence case. This is -- it's unprecedented,

21 it's improper. And it's quite appalling, in our view.

22 The -- what's not clear to me from what Mr. Milovancevic has said

23 this morning is if any of these individuals have actually agreed to be

24 witnesses. If they have not agreed to be witnesses, they are not

25 witnesses and they shouldn't be on the list and the list then is comprised

Page 5985

1 of the six named individuals. And to be clear here, just so the numbers

2 are on the record, there are 53 witnesses on the Defence list. 47 of them

3 are anonymous. We have the names of only six witnesses. The -- if the

4 witnesses have been contacted and have agreed to be witnesses, then they

5 are witnesses and we should know who they are. There is no -- there is

6 nothing in what Mr. Milovancevic has said, nothing, to justify not

7 providing the names to the Prosecution. There is nothing. We will not --

8 we -- this can be done confidentially. We are not suggesting that the

9 names should be public, but there is nothing he has said, whether they

10 have agreed to be witnesses, whether they have these fears about coming to

11 the Tribunal, whether they are not witnesses. We should be entitled today

12 to have their names. Because we were supposed to have their names two

13 days ago. So it's already two days late. And we should have the names

14 today, and in any event, this issue must, in our view, be resolved before

15 the recess. This is not -- we cannot go into the recess without knowing

16 who the Defence witnesses are in this case. It tremendously prejudices

17 the Prosecution in its preparation. It will no doubt result in

18 significant delays once we start up again because the Prosecution, in our

19 view, will have a strong basis for delaying the cross-examinations of

20 witnesses because it will have been prejudiced and not have been able to

21 prepare.

22 If I could contrast, just briefly, the approach that the

23 Prosecution took to this issue of delayed disclosure to the approach that

24 the Defence has taken, the Prosecution filed its 65 ter list of witnesses

25 on the 7th of May 2004. On that list were 74 witnesses. Prior to filing

Page 5986

1 the list - prior - the Prosecution sought delayed disclosure for three

2 witnesses, three out of 74. And this was granted. Later, on the 19th of

3 July, 2005, the Prosecution sought to add five witnesses to its list and

4 at the same time, simultaneously, sought delayed disclosure for one of the

5 five. So in total, out of 79 witnesses, the Prosecution sought delayed

6 disclosure for four witnesses. This was at a time, I should say, when the

7 start of the trial was not even scheduled, and was likely to be months if

8 not years away, and in fact, when the Prosecution sought delayed

9 disclosure for the first three witnesses, that was two years before the

10 trial ultimately began. That is in stark contrast to the situation here.

11 Here, the Defence is seeking to delay disclosure of 47 out of 53

12 witnesses. And it's seeking to do so in a context when the Defence case

13 is to start four days from now. So at most, the Defence -- the Defence

14 somehow has to justify why it cannot disclose to the Prosecution today,

15 but somehow it could disclose in a few weeks or in a month, and there is

16 no possible justification for that.

17 Moreover, if you look at the relevant law about delayed disclosure

18 which has been set out by this Trial Chamber in its decision in the

19 Prosecution's motion, in its decision of the 9th of December, 2005,

20 delayed disclosure is justified only in extraordinary circumstances. It's

21 impossible to believe that there are -- that extraordinary circumstances

22 exist with respect to giving the names to the Prosecution, or that they

23 could possibly exist for 47 out of 53 witnesses.

24 The Trial Chamber - this Trial Chamber - in its decision laid out

25 three factors to consider: The likelihood that the witness would be

Page 5987

1 interfered with or intimidated if the identity of the witness were made

2 known to the Defence and the accused was in the context of a Prosecution

3 motion. In this case, there is absolutely no risk that the witnesses, if

4 disclosed to the Prosecution, would be intimidated or interfered with by

5 the Prosecution. There is simply no basis for such an assertion.

6 Secondly, the extent to which protective measures are necessary

7 not just for the individual case but for future cases. That's

8 inapplicable to this case.

9 And third, the length of time before trial in which the identity

10 of the victims and witnesses must be disclosed. And here again, I think

11 that factor weighs strongly in favour of immediate disclosure because we

12 are four days before the Defence case.

13 The fundamental bottom line is that the Defence has not made --

14 has not shown why it cannot disclose these names to the Prosecution, why

15 it would in any way threaten the safety of these witnesses, which it just

16 absolutely will not. And this has never ever been done before. It's been

17 tried once, to our knowledge. In the Oric case, the Defence listed 74

18 witnesses and asked for delayed disclosure of five. It later dropped one

19 of them, so it was delayed disclosure of four of the 74, a far different

20 proportion than what the Defence is seeking here, and the Trial Chamber

21 denied it. Trial Chamber held that the reasons brought forward by the

22 Defence in support of the request for delayed disclosure of the names of

23 the four witnesses are unconvincing and unacceptable. The same is true

24 here. The Defence has not put forward any reason. We would strongly

25 urge, Your Honours, that the Defence be ordered to provide the names of

Page 5988

1 the witnesses today or forgo those witnesses on its list.

2 JUDGE MOLOTO: Mr. Milovancevic, any reply?

3 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour.

4 All the witnesses on the list have been interviewed and they have

5 agreed to come in and testify and we can give the Prosecution a list of

6 all those names if the Trial Chamber so orders.

7 What is terrible is what my colleague has just said. To say that

8 we are obstructing the Tribunal, to say that we are not respecting the

9 Tribunal, without asking and first consulting the Defence to learn what

10 all that was about, is unbelievable, as far as I can see and I'm

11 concerned. My learned friend of the Prosecution says there are no

12 extraneous circumstances which justify the witnesses' concern. Your

13 Honour, in the information media, a piece of information was published

14 according to which the Croatian secret services have penetrated the

15 Tribunal and are controlling the Tribunal. So people fear for their

16 lives. They fear for their freedom. So that is something that you can

17 read about in the information media. So when people hear things like

18 that, I can't tell them whether it's serious -- a serious threat or not a

19 serious threat.

20 But at any rate, the Defence, when it comes to deliberate about

21 protective measures for the witnesses, will have to talk to the

22 witnesses. That's what I talked about. So for those witnesses for which

23 we consider that protective measures should be put in place, we will talk

24 to them, see whether their demands are realistic and, depending on the

25 results of that interview, will propose or not propose protective

Page 5989

1 measures. But to do away with any doubts about the work of the Defence,

2 we will supply the names of all the witnesses before the day ends.

3 And let me say one more thing: My learned colleague of the

4 Prosecution says that on the 7th of May, 2004, he provided a list of

5 witnesses, and that on the 19th of July, 2005, he asked for an extension.

6 So that is the problem, Your Honour, because my colleague had from March

7 to the 7th of May, 2004, to make up a list, whereas we just had seven

8 days, after being at trial, and without the possibility of going to

9 Belgrade to talk to the witnesses. So we did what we could. We had to

10 makeshift in order to adhere to the deadlines which are not feasible for

11 us. But that is the reason. It wasn't that we were attempting to

12 obstruct the Tribunal and out of a lack of respect for the Tribunal. If

13 the Prosecution wants to win his case by hurling accusations of that kind,

14 I don't think he's going to succeed there.

15 JUDGE MOLOTO: You have made a very telling statement about the

16 Tribunal, which I would like you to substantiate. If you are able to give

17 proof of that, can you give us the proof of this Croatian secret service

18 that penetrated the Tribunal and is controlling the Tribunal? Show us how

19 it did that and how it does control the Tribunal.

20 Secondly, I want to say to you, if you had only seven days to have

21 your witness list, then you are doing a disservice to Mr. Martic and he

22 needs to know that. You were given instructions to defend Mr. Martic some

23 time ago, not seven days ago. I repeat what I said at the last sitting of

24 the Chamber: That you got instructions -- I beg your pardon. You're

25 supposed to have started preparations from the day you got instructions.

Page 5990

1 From that day, you must have sought who your witnesses are going to be,

2 interviewed them, and as you rightly say today, you have interviewed these

3 witnesses that you have listed on your list, and yet you have just told us

4 that you have not been to Belgrade since the last session. So you have

5 not interviewed them in the last seven days. You have interviewed them

6 much earlier. So I will not accept any statement that you have had only

7 seven days. You are at every minute, every opportunity, trying to find

8 space to say you are being prejudiced in this case by the Bench, and this

9 Bench is not prepared to accept that. That you must know and know very

10 clearly. If you haven't prepared your defence, then it's about time Mr.

11 Martic did something about it. But I will not accept that you have not

12 been given time to prepare your case for the Defence. You don't begin to

13 prepare a case for the Defence only at the close of the Prosecution case.

14 You prepare your case from day 1 and you continually adjust according to

15 how things pan out in the trial.

16 Now, if as is clear from what you say, you have interviewed these

17 witnesses, and obviously not in the last seven days, it is -- and you say

18 that, in fact, some of them fear for their lives coming to testify, fear

19 for their lives travelling here, it is surprising that you have not made

20 any application for protective measures up until this time. And the

21 question is: If you are going to need such protective measures, when are

22 you going to make such applications and when is that application going to

23 be granted for those witnesses to be on time to testify when you do know

24 that, by order of this Chamber, you are supposed to start testifying --

25 leading evidence next week.

Page 5991

1 MR. MILOVANCEVIC: [Interpretation] Your Honour, of course I do

2 know, and we shall begin on time. There is nothing contentious about

3 that. I don't think you understood me properly. I was just responding to

4 the Prosecution's assertions that he did everything on time, within

5 deadlines. I didn't broach any new subject, I just tried to indicate the

6 realistic positions that the Defence were facing. And that is why the

7 opposite side is attacking us. But we shall begin on the date you told us

8 to begin. The witness will appear.

9 JUDGE MOLOTO: In any case, then I'm just -- the Bench is just

10 telling you that what you call realistic is completely unrealistic because

11 you have not had seven days only to prepare.

12 Now on this point of names of witnesses, the Defence is ordered to

13 provide the Prosecution with a full list of the witnesses they intend to

14 call by 15 minutes after the end of this session. Okay? That disposes of

15 that item.

16 MR. MILOVANCEVIC: [Interpretation] Your Honour?

17 JUDGE MOLOTO: Yes, sir.

18 MR. MILOVANCEVIC: [Interpretation] I do apologise but, yes, we

19 shall do that straight away afterwards, but don't give us a 15-minute

20 deadline, please. We have to type it out, get the names straight. We

21 have all this but it takes time for us to leave the courtroom, reach the

22 Defence room. We'll need more than 15 minutes. Can we say one hour? But

23 I assume we'll get through it before the hour is out but it's just the

24 technical feasibilities of printing out something.

25 JUDGE MOLOTO: You are supposed to have it ready,

Page 5992

1 Mr. Milovancevic. Do you know that?

2 MR. MILOVANCEVIC: [Interpretation] Your Honour, we handed in that

3 list, and said what the witnesses would testify about. All we have to do

4 is to type out the names that we haven't given you which I think -- we

5 think are relevant. So if you want the names, yes, we'll hand the names

6 in.

7 JUDGE MOLOTO: I can go back to your address this morning where

8 you said you could give the list now. And I'm now not saying now, I'm

9 saying 15 minutes after the session. Isn't that generous compared to what

10 you asked for?

11 MR. MILOVANCEVIC: [Interpretation] Yes, we will abide by your

12 instructions, Your Honour.

13 JUDGE MOLOTO: Thank you very much.

14 The question of the estimated time of testimony, let me just find

15 out from you, Mr. Milovancevic, does this -- is this an estimate of the

16 examination-in-chief only or does it include cross-examination and

17 possibly questions by the Bench, and re-examination? The estimate that

18 you have given for each witness.

19 MR. MILOVANCEVIC: [Interpretation] Your Honour, this is our

20 approximation, which is always an evaluation of how long the

21 cross-examination -- or examination of witnesses will last or, rather,

22 examination-in-chief and how much time the cross-examination will take and

23 the questions from the Bench, so that's just an assessment, a rough

24 estimate, because we haven't had enough experience in this kind of work,

25 so we looked at the time the Prosecution took and tried to achieve some

Page 5993

1 sort of balance and equivalent time. There might be some 92 bis

2 statements put in too, but at present we were faced with the situation we

3 were faced with, and it is as it stands at present.

4 JUDGE MOLOTO: The question about 92 bis, I will raise in due

5 course during this conference. What I did want to get clear, and I do

6 appreciate, Mr. Milovancevic, that it is but an approximation, but what I

7 did want to get clarified is whether this is an approximation of both

8 leading, cross, re-exam and possibly also Judges' questions or is it just

9 of leading evidence? I want to assume from what you have said in answer

10 that you tried to estimate leading, cross, re-examination, and questions

11 from the Bench. I thank you for that.

12 Do you have anything to raise on the content of the summaries?

13 MR. WHITING: Such as it is, yes, Your Honour, I certainly do have

14 something to raise about that, thank you. Your Honour, in our view, the

15 65 ter summaries that have been provided to the Prosecution are utterly,

16 utterly inadequate and fail to comply with the Rule. The Rule, as Your

17 Honours know, require the Defence to provide a summary -- "a summary of

18 the facts on which each witness will testify."

19 It is the same requirement for the Prosecution as it is for the

20 Defence. The same language. Though I would note that the Prosecution, in

21 addition to providing a 65 ter summary of its witnesses, is also required

22 to provide prior statements of the witnesses, which, of course, can

23 amplify and explain and make clear what the witness is going to testify

24 about. That -- the Defence does not have that requirement. It is not

25 required to provide to the Prosecution statements it has taken from

Page 5994

1 Defence witnesses. In our view, this makes it all the more important that

2 the 65 ter summaries, which are the only notice that are provided to the

3 Bench and to the Prosecution about what the witness is going to say, that

4 it be in compliance with the Rule. It's all the more important in this

5 case.

6 In our view, the 65 ter summaries that have been provided to the

7 Prosecution are virtually devoid of facts. There are no facts in these

8 summaries. What there are are topics, topics about what the witnesses

9 will testify about. For example, let's look at the first one, MM-084. It

10 says in the 65 ter summary that he will testify about the following facts,

11 but then no facts follow. There are topics that follow. Topic headings.

12 For example, the Vance Plan. He will testify about the Vance Plan. That

13 is not a fact. That is a topic. We don't know what he will say about the

14 Vance Plan, what his evidence will be, what facts he will provide about

15 the Vance Plan. The next witness, MM-085, we are told will testify about

16 "events in Dubica, Cerovljani and Bacin." We are not told what he will

17 say about those events, what facts he will provide, what time period, what

18 events; nothing.

19 In our view, under the jurisprudence of the Tribunal, these

20 summaries are inadequate, and in our view the Defence should be ordered by

21 Monday, we would propose, to provide 65 ter summaries of all its witnesses

22 in compliance with the Rules. With respect to the jurisprudence, I would

23 note that in the Galic case, the Trial Chamber held orally that, "The main

24 purpose of the 65 ter summaries is to give a summary of the facts that

25 enables the other party to prepare for cross-examination." The summaries

Page 5995

1 that have been provided to us fail to do that. They make it impossible to

2 prepare for cross-examination because we do not know what the witness will

3 say, so we cannot prepare to challenge what the witness is going to say.

4 Challenge or accept, perhaps, in some cases, but we cannot prepare

5 cross-examination because we do not know what the witness will say.

6 The Trial Chamber in Galic also noted that it's important to have

7 adequate 65 ter summaries for the Bench to be able to make determinations

8 about the relevance of witnesses before they come, and about the time

9 estimates that have been provided by the Defence, and to judge whether

10 witnesses should be dropped from the list, whether they should be

11 shortened, and so forth.

12 And in this case, there are a number of witnesses about whom the

13 Prosecution has questions about relevance. For example -- but it's

14 impossible to judge for sure, but for example, MM-086, who will testify --

15 we are told will testify about the mistreatment of Serbs in Zadar. On the

16 face of it, given that information, it's not clear to us what the

17 relevance would be. But without more information, it's impossible really

18 to judge. MM-0109, we are told, will testify about the events before the

19 19th of August, 1990, and about the proclamation of a state of war through

20 the Knin radio station. Again, without more detail, it's impossible to

21 determine whether that information is really relevant to this trial.

22 Witness MM-118 we are told will testify about events in -- really

23 about Croat crimes. Miljevac alleged Croat crimes, Miljevac Plateau, the

24 Medak pocket, and Maslenica. Again, without more detail, impossible to

25 tell.

Page 5996

1 In the -- just on the subject of more jurisprudence, in the

2 Kupreskic case in 1999, it's a decision of -- I actually have copies of

3 this, if the Court is interested. It's 11th of January, 1999. The Trial

4 Chamber -- the Defence provided inadequate summaries of Defence witnesses

5 and the Trial Chamber found that: "The extremely succinct and summary

6 nature of many Defence witness statements violated the principle of

7 equality of arms since the Prosecution communicated much more detailed

8 Prosecution witness statements to the Defence and to the Trial Chamber

9 before the presentation of its case, thereby enabling the Defence to

10 prepare for cross-examination of Defence witnesses."

11 And in that case, the Trial Chamber ordered that the Defence file

12 more detailed summaries of witness statements. It's unusual for the

13 Prosecution to make an equality of arms argument, but in this case I think

14 it's justified.

15 If the 65 ter summaries that have been provided by the Defence are

16 compared to the 65 ter summaries that were provided by the Prosecution, I

17 can just make a little visual comparison here. These are the Prosecution

18 65 ter summaries which, again, were in addition to the witness statements

19 provided, so that the Defence had full information about what our

20 witnesses were going to testify about. And this is the Defence summaries.

21 Plainly inadequate. We would ask that they be redone and that they be

22 redone immediately because they should have been done properly Wednesday.

23 We should have had these on Wednesday.

24 JUDGE MOLOTO: Any response, Mr. Milovancevic?

25 MR. MILOVANCEVIC: [No interpretation].

Page 5997

1 JUDGE MOLOTO: Sorry, once again, we are not getting --

2 MR. MILOVANCEVIC: [Interpretation]

3 Q. My learned friend is right when he says these summaries are indeed

4 short -- I apologise. I don't know whether this has anything to do with

5 my mike which has been switched on.

6 These summaries, in other words, are really short and they are

7 certainly not the result of our effort to deprive Prosecution from getting

8 information.

9 We were pressed for time and this is the result of that time

10 pressure that we've had.

11 We heard a suggestion of our learned friend that this should be

12 done by Monday and I would kindly ask the Trial Chamber to grant us a

13 week, until next Monday, because in the meantime we will have our

14 beginning of our trial, preparation of witnesses, we have a lot of work to

15 do, and we are simply talking about the feasibility of things and how to

16 do them. I don't want to -- for us to find ourselves in a situation to

17 face objections that we have not provided enough detail yet again when we

18 provide our summaries.

19 MR. WHITING: Your Honour, if I may make a proposal, my only -- I

20 understand we all have a lot of work to do. I understand the Defence case

21 is beginning next week. I don't want to make unrealistic pressures on the

22 Defence, however my one concern about delaying this too long is that in

23 the event -- we've already got one set of inadequate summaries. In the

24 event the second round are inadequate, we will be a little bit without a

25 remedy because everybody will be on recess by next Friday. So what I

Page 5998

1 would propose is that the Defence file -- provide the Prosecution with a

2 batch, some of the -- some revised 65 ter summaries of, ten, let's say, by

3 Monday or Tuesday of next week and the remainder by Friday of next week.

4 And then that will give us an opportunity to, if we need to, we will have

5 an opportunity to raise objections to the Trial Chamber. That's my only

6 concern. But I'm agreeable to allowing the Defence to have sufficient

7 time to accomplish its task.

8 [Trial Chamber confers]

9 JUDGE MOLOTO: Mr. Milovancevic, you asked for a week. You asked

10 for a week to give these statements. Did I understand you correctly?

11 Yes, okay.

12 Mr. Whiting, the Chamber has a view on this issue which we would

13 like to share with the parties, and if you agree with it and

14 Mr. Milovancevic agrees, we will make that the order, that by Monday noon

15 the Defence provide the Prosecution with detailed summaries of the

16 witnesses who are going to be called in the week before recess and in the

17 week immediately after recess. And then in a week's time, before we go on

18 recess, they can give the balance of the statements -- of the summaries,

19 detailed summaries. Would that be okay with you? I don't want to order

20 them to make them give you ten by Monday and then those ten are not

21 proper.

22 MR. WHITING: That's fine, Your Honour. My only concern on that

23 is that it's my understanding that there will only be one witness next

24 week, and I don't know how many witnesses will be after the recess, but if

25 this amounts to us seeing two summaries, you know, I don't know. It would

Page 5999

1 be nice if we had a few more, but I'm not going to quibble.

2 JUDGE MOLOTO: Wouldn't you use the time during recess at least to

3 see the rest?

4 MR. WHITING: Yes. As I said, it's not an issue about getting

5 them -- we don't need all of them on Monday. It's just an issue about

6 having an opportunity to raise objections if the ones we get are still

7 inadequate, that's all. But the proposed order is fine, Your Honour.

8 JUDGE MOLOTO: That would cut down the work load on your side,

9 Mr. Milovancevic, wouldn't it, at least between now and the start of the

10 Defence case. Is that okay?

11 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour. We

12 agree.

13 JUDGE MOLOTO: All right. Fine. Then it is so ordered that the

14 Defence shall provide the Prosecution with detailed summaries of witnesses

15 scheduled for the week before the beginning of recess and the week after

16 the beginning of recess. At least for those two weeks, the witnesses

17 scheduled for those two weeks must be given by Monday noon, and by no

18 later than Friday, the 14th of July, the balance of the statements,

19 summaries of the statements, must be given to the Prosecution. Okay?

20 Mr. Milovancevic, Mr. Whiting has raised a number of issues about

21 the statements that you gave. I'm not quite sure whether it is worth us

22 going through the statements now that you are going to give new

23 statements. It's probably not worth it -- new summaries, rather. Thanks,

24 Judge. We will have to look at your new summaries when we next see them.

25 There are a few things we still need to sort out.

Page 6000

1 When -- by when, Mr. Milovancevic, do you think or -- let me take

2 a step back. Is it anticipated that any of the Defence witnesses are

3 going to require protective measures? And if so, by when can we expect

4 applications for such protective measures?

5 MR. MILOVANCEVIC: [Interpretation] Your Honour, according to the

6 information that the Defence has available at the moment, it seems to us

7 that a lot of witnesses will seek protective measures. What is important

8 at this moment is that not for a single moment these protective measures

9 will be used to gain time or to seek delay in the testimonies of these

10 witnesses. We will seek protective measures in due course, we will

11 explain why we are seeking them, and we will provide the Trial Chamber

12 with a list of witnesses who seek protective measures. (redacted)

13 (redacted)

14 (redacted)

15 [Trial Chamber and registrar confer]

16 JUDGE MOLOTO: [Microphone not activated] You just mentioned the

17 name of a witness who you say was a protected witness and he's going to

18 seek protective measures. May that name please be deleted. I do see that

19 it doesn't appear on the transcript. If it can just stay like that.

20 Mr. Milovancevic, what the Trial Chamber would appreciate, if it's

21 possible, and it would expedite the proceedings, is if you could determine

22 all the witnesses that you think will require protective measures and just

23 put them in one motion. That would be very helpful in that -- then we

24 don't have to deal with many motions as we go along.

25 MR. MILOVANCEVIC: [Interpretation] Your Honour, we believe that

Page 6001

1 this is agreeable and we will act in accordance with your instruction.

2 JUDGE MOLOTO: Okay. Thank you very much.

3 MR. WHITING: Your Honour, if I may? According to our

4 information, the witness that the Defence referred to - I won't use his

5 name out of an abundance of caution - but did not testify with protective

6 measures in the Milosevic case. It was in open session and his name was

7 used, but maybe there has been an understanding.

8 JUDGE MOLOTO: That's okay. Again out of an abundance of caution,

9 let's just leave it as if it was protective measures. We'll see later

10 when we have got the full truth about it.

11 If I may just go back to the summaries, am I right to say that the

12 detailed summaries that are going to be filed, they will also be filed

13 with the Chamber? Mr. Milovancevic?

14 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour, that's

15 correct.

16 JUDGE MOLOTO: Okay. Now, there is also the question of -- and

17 you raised it yourself, Mr. Milovancevic, in your -- in one -- in

18 discussing one of the points a little earlier, that some of your witnesses

19 may be 92 bis witnesses. Now, my prima facie, or perhaps the Bench's

20 prima facie view of the summaries that you filed was that a lot of those

21 witnesses could be 92 bis witnesses, because a lot of them corroborate one

22 another. For example, I personally counted 11 witnesses that are

23 testifying on the same topic, political developments, and eight who are

24 testifying on relations between Croats and Serbs. Now, in fact those two

25 topics are so closely related that it could easily be said 19 people are

Page 6002

1 being called to testify on one topic. Now, either some of them could be

2 cut off completely or if they deal with -- if each one of them deals with

3 an extra point which none of the others deals with, at least they could

4 come up via 92 bis. Maybe one of them could be viva voce, but the rest,

5 who are corroborating, could come 92 bis.

6 MR. MILOVANCEVIC: [Interpretation] Your Honour, due to the brevity

7 of these summaries that we have provided to the Trial Chamber and the

8 Prosecution, one might gain the impression that the 11 witnesses speak

9 about the same topic, the political situation, that is, and the rest about

10 the relationship between the Croats and the Serbs. However, as far as I

11 can tell you at the moment, all of these witnesses also speak about the

12 actions of the accused, and this is the criterion that is crucial, whether

13 a statement can be introduced according to 92 bis Rule. In any case, when

14 we took the witnesses' statements, we made sure that they would not

15 testify about one and the same thing. We just provided the summaries in

16 that way. In any case, we will bear in mind what you've just told us and

17 we'll try and, wherever possible, suggest the use of the Rule 92 bis.

18 JUDGE MOLOTO: Thank you very much, but in any case, you yourself

19 had referred to the possibility of using 92 bis, and I would imagine also

20 that the more detailed summaries that tell us facts that you -- the

21 witnesses are going to testify about will enable us to determine whether

22 92 bis is appropriate or not.

23 I would just like to deal with some other matters that I think

24 need attention.

25 I think it is important for the Defence to state who is going to

Page 6003

1 testify next week and on the 14th of August. Is that a fair comment,

2 Mr. Milovancevic?

3 MR. MILOVANCEVIC: [Interpretation] Your Honour, yes, it is a fair

4 comment. Next week we are going to hear one witness whose name I

5 mentioned. He will testify over a long period of time and he will testify

6 about a long period of time. He will testify about important facts, and

7 we believe that we will be able to finish that witness next week, that he

8 will fill up the time until the recess. As for the witness after the

9 recess, since we are in the process of making the detailed list, until the

10 end of the week I would kindly ask to you grant us time to tell you that

11 at the moment when we provide more detailed summaries. It will be easier

12 to do then than at this moment. I don't want to improvise, Your Honours.

13 Whatever I say here is binding upon me and this is my attitude towards

14 what I'm saying in the courtroom.

15 JUDGE MOLOTO: Thank you, Mr. Milovancevic.

16 Mr. Milovancevic, is it possible that any exhibits will be

17 tendered through these witnesses? Because any exhibits that are going to

18 be tendered through these witnesses must also be identified to the

19 Prosecution early.

20 MR. MILOVANCEVIC: [Interpretation] Your Honour, we have provided

21 the list of evidence that we intend to use. Of course, we will try to

22 introduce that evidence through our witnesses. We are aware of the

23 problem that we are facing at the moment. The same evidence should be

24 part of the e-court. However, due to some problems that have appeared

25 during the trial with regard to the distribution of the material by the

Page 6004

1 Registry that has been pointed out by the Trial Chamber, we have our case

2 manager now and we will try and remove the problem as we go, and I believe

3 this is the problem that the Trial Chamber is pointing to us at the

4 moment. We are aware of the -- our obligation that the evidence that we

5 intend to lead should be part of the electronic system. We will try and

6 translate all of the materials and, when we hear the witnesses, we will

7 make sure that the Trial Chamber and the Prosecution know beforehand what

8 evidence we intend to introduce through each and every one of these

9 witnesses.

10 JUDGE MOLOTO: I'm not quite sure we are together. I'm actually

11 talking not necessarily about evidence in general, I'm talking

12 specifically about exhibits. And my question was to you: Are there any

13 exhibits that the Defence intends to tender through the witness that is

14 testifying next week, and the witness that's testifying in the week after

15 recess? And I was saying if there are any exhibits to be tendered through

16 those witnesses, then those exhibits should be identified to the

17 Prosecution and to the Chamber also as early as the identification of the

18 witnesses for this next week and the week after recess, because everybody

19 needs to prepare on those exhibits. Do I come out clearer now? Thank you

20 very much, Mr. Milovancevic.

21 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour. Thank you

22 very much. I really was off the point. And I now understand what you

23 have asked me to do.

24 JUDGE MOLOTO: And you undertake to provide those exhibits to the

25 Prosecution, together with the detailed summaries of these witnesses for

Page 6005

1 next week and the week before -- I beg your pardon, the week after

2 recess. That being so, it is so ordered.

3 Let me just mention also that the sitting on the 13th, it's being

4 disturbed slightly. We may have to start 20 minutes late, at about 20

5 past 9.00, because of the swearing-in ceremony of a new Ad Litem Judge who

6 will be arriving and the fact that most judges are not going to be around

7 on that day and those that are around are being urged to attend the

8 ceremony.

9 What I wanted to find out, Mr. Milovancevic, and I don't know

10 whether this is something that is usually disclosed here or not. Where I

11 come from, it's no secret. You've given us 53 witnesses. Can I assume

12 that Mr. Martic is not going to testify? Or is he one of the 53? Or is

13 he going to be a 54th?

14 MR. MILOVANCEVIC: [Interpretation] Your Honour, we have considered

15 that possibility. Mr. Martic will most probably testify. Most probably

16 Mr. Martic will testify, and he would be the 54th witness on the list.

17 This is the current position of the Defence.

18 JUDGE MOLOTO: And if he does testify, then we need to get an

19 estimate of the length of time he's going to testify for so that we are

20 able to compute the period.

21 MR. MILOVANCEVIC: [Interpretation] Your Honour, since the estimate

22 of the duration of the possible testimony by Mr. Martic will depend on the

23 length of the testimony of the witnesses that are already on the list, we

24 will take all that into consideration and in the shortest possible time we

25 will provide the Trial Chamber with our estimate. At this moment, I would

Page 6006

1 not be able to give you any estimate. This will largely depend on our

2 final agreement with Mr. Martic and the topic that he will testify on. I

3 would kindly ask you to take this explanation as a reasonable position of

4 the Defence that will do everything in their power to inform the Trial

5 Chamber of all the details in due course.

6 JUDGE MOLOTO: Mr. Milovancevic, I am trying very hard to take

7 this as a reasonable explanation of the Defence, but what I find a little

8 difficult to understand is where you say that the duration of the possible

9 testimony by Mr. Martic will depend on the length of the testimony of the

10 witnesses that are already on the list, I don't know how that can depend

11 on -- how those two can be interdependent. Mr. Martic -- I would have

12 imagined in fact that Mr. Martic would be, if you are going to call him,

13 he would be the one witness that would take the longest time because he's

14 got to deal with all the counts and all the facts, and you just give an

15 estimate of how long you think he will stay in the box for, and I don't

16 know how that depends on the people on the list. And I understand that

17 you may not have taken a final decision whether you are going to call him

18 or not, but if you do call him, you need to make that decision very soon,

19 because if you are going to call him, we need to factor into the time

20 estimated for the Defence case the time that Mr. Martic is going to spend

21 testifying.

22 And you see, one thing that we needed to resolve today, and we are

23 not going to be able to resolve, and this is causing a delay, is whether

24 or not the hours that you estimate - you've estimated 300 hours, which is

25 four and a half months - whether those are justified and whether those

Page 6007

1 should be the hours that the Defence should be allocated. We have already

2 indicated -- you have already indicated that some of the witnesses indeed

3 may come 92 bis and that may cut down on a lot of hours, but if Mr. Martic

4 is going to testify, then that may increase your hours, and other people

5 outside this courtroom require this estimate for administrative purposes.

6 And we are now not able to make this estimate.

7 MR. MILOVANCEVIC: [Interpretation] Your Honour, what you have just

8 said is very true. As far as the time is concerned for the witnesses on

9 our list, this is the time that the Prosecution had, and we believe that

10 the Defence should have the opportunity to use up as much time as the

11 Prosecution.

12 As far as Mr. Martic is concerned, and if you are agreeable with

13 that, by the end of next week we will inform you exactly whether

14 Mr. Martic is going to testify, when - I believe this will be at the end

15 of our case if that happens - and how long Mr. Martic will take. Your

16 Honour, we do not expect that Mr. Martic will testify for a month. We

17 don't believe that his testimony will take that much longer than the

18 testimony of other witnesses, and we don't expect that his testimony will

19 have a drastic impact on the duration of the case. In any case, if you

20 will allow us to talk to Mr. Martic and inform you about his testimony

21 after our conversation with our client.

22 JUDGE MOLOTO: I hear that, Mr. Milovancevic, but you see, end of

23 next week is end of term, and we are not here to work on issues. We need

24 this information before we go on recess. We've got to work on it. As I

25 say, there are other departments in the Tribunal outside just the Chamber

Page 6008

1 who need this information. But also the Chamber needs this information

2 for scheduling purposes. I don't think it should take you that long to

3 sort out with Mr. Martic the question of his testifying. You should be

4 able to do that today sometime and you can tell us on Monday. I mean,

5 this is -- this must be something that has occupied your minds from day 1.

6 MR. MILOVANCEVIC: [Interpretation] Yes. We'll do as you have

7 instructed. We will inform you of that on Monday.

8 JUDGE MOLOTO: Thank you very much.

9 Having said that, I just want to say that the issue of the hours

10 allocated to the Defence still remains unresolved. In reply to what you

11 said, Mr. Milovancevic, that you -- the Defence must have the same amount

12 of time as the Prosecution had, I don't think it's correct to say that.

13 It all depends on various factors. It depends on the witnesses, the

14 number of witnesses you have, what they are going to testify about, how

15 they are going to testify, are they mainly 92 bis or are they mainly viva

16 voce, are they all viva voce? And in my view, you could take a little

17 more than the Prosecution or it could take far less than the Defence

18 [sic]. In a situation where you have about 53 witnesses as against 74

19 that they had, expectations would be that you would probably take less. I

20 think what is important is that the Defence must get an opportunity to

21 present its case and place it on the record, and it must place it

22 effectively. That is the important thing. And unfortunately, in this

23 Tribunal, we have to estimate time because time is needed -- is used for

24 various things, and we are going to have to then postpone the question of

25 time to sometime before we start the Defence case, and hoping that by then

Page 6009

1 we will have resolved all the issues that impact on time.

2 I'm going to suggest that that issue remains postponed to Tuesday,

3 the 11th, when the Defence case begins. Whatever information has to be

4 given relating to the time must be given by Monday, the 10th, Mr.

5 Milovancevic. Then we can deal with it on the 11th.

6 Any outstanding issues that you would like to raise, Mr. Whiting?

7 MR. WHITING: Only five, Your Honour.


9 MR. WHITING: Yes. They are brief, though.


11 MR. WHITING: Usually lawyers say one and then they raise five, so

12 I thought I would say five.

13 JUDGE MOLOTO: And raise one?

14 MR. WHITING: No, it will actually be five.

15 The first is just to note that actually the Prosecution didn't

16 call 74 witnesses. Far fewer than that. And by our estimate we used 260

17 hours for -- to present the Prosecution case, which is far below what the

18 Defence has proposed. They have proposed 320 hours for the Defence. But

19 having said that, I agree with Your Honour's observation that there is no

20 rigid mathematical equivalence here. It could be more, it could be less,

21 it depends on what the evidence is, but I just wanted to note that.

22 The second is now that we've learned for the first time today that

23 Mr. Martic himself will most likely be a witness, not only do we, in our

24 view, need the estimate of time, but more importantly, we need a 65 ter

25 summary for him. He is a witness like any other, and a 65 ter summary

Page 6010

1 should be prepared and we should have that with the other 65 ter

2 summaries, because knowing the complete Defence case could affect how the

3 Prosecution prepares for cross-examinations of individual witnesses and

4 what issues it deals with and how it prepares for that. So we -- in our

5 submission, we should have a 65 ter summary for Mr. Martic along with the

6 others by the deadline of next Friday.

7 I don't know if I should -- should I continue with all the issues

8 or --

9 JUDGE MOLOTO: Do you want that resolved before you continue?

10 MR. WHITING: Perhaps we should.

11 JUDGE MOLOTO: I guess that is -- speaks for itself,

12 Mr. Milovancevic. That is, it can't be otherwise.

13 MR. MILOVANCEVIC: [Interpretation] Your Honour, we still have not

14 made a definite decision with respect to Mr. Martic's testimony. What we

15 know so far is that we think that he should testify, that he would be --

16 will be testifying. Now, through the list of witnesses, and our

17 introductory address, the Prosecution will gain insight into our Defence

18 case and Mr. Martic, as a witness testifying on his own behalf, will speak

19 about all the facts raised by the Prosecutor and that other witnesses

20 addressed.

21 Now, I should like to ask that more time be left for Mr. Martic's

22 testimony. It will be a detailed testimony, it will relate to an enormous

23 number of facts, and I think that it is in the interests of both the

24 Prosecution and the Trial Chamber to have this presented as best as

25 possible. We see no danger that the Prosecutor will not be able to view

Page 6011

1 the case as a whole, having worked on it for so many years. Of course,

2 the Prosecution has the right to be made aware of the facts of the

3 testimony but we have to adjust ourselves to the situation.

4 JUDGE MOLOTO: Mr. Milovancevic, I don't know why life is becoming

5 so unnecessarily difficult when it shouldn't be. If you are going to call

6 Mr. Martic as a witness, then he is a witness, then you must give a 65 ter

7 summary of his testimony. It can't be otherwise. And as I said, the

8 question whether or not Mr. Martic is going to testify is a question that

9 should have occupied your mind much earlier than today when the Bench is

10 raising the question. And you should -- it's part of the strategy, and

11 you should be knowing by now. I don't take kindly to your prevarication

12 on whether or not Mr. Martic is going to testify. This is a fundamental

13 decision that you take when you plan your strategy, and for you now to

14 want to delay the proceedings because you have not taken a decision on

15 this is really not acceptable, I must say. I do not think we should delay

16 more than this. It has just actually struck me that it looks like I made

17 an order a little earlier which is making it impossible for us to give an

18 estimate of the Defence period in terms of Rule 75 ter, and we have just

19 been pushed against the wall by all these uncertainties that are coming

20 from the Defence case, you know. I think -- I think, Mr. Milovancevic, if

21 you are going to call Mr. Martic as a witness, by the time that you give

22 the detailed summaries of the witnesses to the Prosecution, you must have

23 a detailed summary of Mr. Martic's testimony. Otherwise, we -- the Bench

24 and the Prosecution will be entitled to assume that the witnesses that you

25 are going to call are the witnesses for whom you have given summaries by

Page 6012

1 the end of next week.

2 MR. MILOVANCEVIC: [Interpretation] Mr. Martic will testify and

3 we'll do our best to provide the summary by next Friday.

4 JUDGE MOLOTO: Yes, Mr. Whiting?

5 MR. WHITING: I was just going to go on to my other matters, if I

6 may. Or --

7 JUDGE MOLOTO: Yes. Mr. Whiting, I see you want to go on to the

8 next point. My mind at the moment is occupied -- well, when I said 75

9 ter, I meant 73 ter. The Chamber has to make this estimation pursuant to

10 73 ter of the period of the Defence phase and I'm trying to work out

11 through my mind whether, if we get this information by next Friday, we

12 will be able to do so, will the Bench be able to do its job before we go

13 on recess? And lest I forget it, can I ask you to hold your four items.

14 Let's resolve this one.

15 Mr. Milovancevic, are you able to venture a suggestion on how to

16 deal with this situation? The Chamber must make a ruling in terms of 73

17 ter (E) on the Defence case. And for it to be able to do so it must have

18 all the information, all the summaries before. In other words, it must

19 have a proper filing by the Defence in terms of 65 ter (G), and this 65

20 ter (G) filing is not ready right now. How do we get out of this problem?

21 How do you suggest we get out of this problem? We can take a break and

22 you can answer when we come back, because it looks like Mr. Whiting also

23 has more questions to raise. May I suggest that you apply your mind

24 during the break.

25 Court adjourned, come back at quarter to.

Page 6013

1 --- Recess taken at 10.16 a.m.

2 --- On resuming at 10.46 a.m.

3 JUDGE MOLOTO: Just to round up, Mr. Milovancevic, the Chamber has

4 sort of considered the situation, and we make this order, that the final

5 determination of the estimated period of the Defence evidence will be made

6 on the 14th of August. This, however, does not mean that you've got --

7 the Defence must give us the information we require by then. The

8 information we still require before we go on recess so that we can

9 consider that. Having made that order, the Defence must also understand

10 that because of this delay, there may be delays in processing your

11 payments because all that will not be having the determination until then.

12 Okay, Mr. Milovancevic? You understand that?

13 You may go on to your next points, Mr. Whiting.

14 Yes, Mr. Milovancevic?

15 MR. MILOVANCEVIC: [Interpretation] Your Honour, yes, I understood

16 you fully. A moment ago, before the break, we asked -- you asked about

17 the duration of Mr. Martic's testimony. The duration of testimony is

18 linked to the overall duration of the Defence case, and we would like to

19 tell you straight away, here and now, that it is the Defence's position

20 that Mr. Martic's testimony should not influence the time stipulated on

21 the list. We'll try and comply with the number of hours that we

22 stipulated on the list. Of course, there might be some witness movement,

23 but at this point in time, that would be our preliminary position. It's,

24 of course, an approximation but I think that it is something that will be

25 of importance to the Trial Chamber and we'll try to stick to that.

Page 6014

1 JUDGE MOLOTO: I hear what you say and I appreciate what you say,

2 Mr. Milovancevic. You're missing one point, though. The point is that at

3 some stage the Chamber must make a determination, in terms of Rule 73

4 ter (E) of the length of time that the Defence will take to present its

5 case. In other words, this means that the estimate -- the 300 hours

6 estimate given by the Defence is not taken as gospel. The Chamber must

7 still make a determination, and that determination can only be made when

8 the Chamber has seen the detailed summaries of the evidence that is going

9 to be presented, and a determination has been made how the hours can be

10 cut down, either by getting some of the witnesses as 92 bis witnesses or

11 cutting some of them completely. So it is not just because of

12 Mr. Martic's testifying or not testifying that we are not able to make

13 this determination. We are not able to make the determination because we

14 must still get this full summary, complete summary, of the testimony to be

15 given by all the witnesses. Okay? I hope that clears the matter.

16 Mr. Whiting, you may go on to the second of your four remaining

17 points.

18 MR. WHITING: The good news is we are actually on the third of the

19 -- I've already covered two. We are on number 3.

20 JUDGE MOLOTO: Have you?

21 MR. WHITING: Yes.

22 JUDGE MOLOTO: I don't know what number 2 was.

23 MR. WHITING: Number 1 was to tell the Court what the time was

24 that we used, and then number 2 was the 65 ter summary for Mr. Martic.

25 So number 3 now is that the -- with regards to the exhibit list

Page 6015

1 that has been provided by the Defence, Rule 65 ter (G)(ii) requires the

2 Defence -- the last sentence of that Rule is that, "The Defence shall

3 serve on the Prosecutor copies of the exhibits so listed." Now, we have

4 received two lists, exhibit lists, from the Defence. One are exhibits

5 that have ERN numbers. We don't need copies of those. We have those

6 documents. They got them from us. The other list, however, are documents

7 without ERN numbers and for those, we would need copies of the exhibits,

8 and we would ask that the Defence be ordered to provide those copies today

9 to us of those exhibits. This should -- this is again something that

10 should have been done on Wednesday, as part of its compliance with Rule 65

11 ter (G). It was not done and we would ask that it be done by today so

12 that we have those exhibits.

13 JUDGE MOLOTO: Mr. Milovancevic, I'm sure you are aware of that

14 Rule.

15 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour. I addressed

16 that question in part when I said that the Defence entered this stage

17 under circumstances which meant that we had to hurry up because we have

18 just recently been given a case manager, for objective reasons, and

19 therefore the second list we shall prepare within the shortest space of

20 time, Your Honour. But this was just a physical job that had to be done.

21 So that is why we weren't able to do so thus far. I think that in the

22 coming week, we will have complied and finished the job.

23 JUDGE MOLOTO: Yes, Mr. Milovancevic. I'm not quite sure -- you

24 obviously have proofed these witnesses and taken statements from them.

25 It's just making a copy and giving it to the opposite side.

Page 6016

1 Why does it become so difficult to do it today?

2 MR. MILOVANCEVIC: [Interpretation] It doesn't refer to witness

3 statements. It is a description of the documents. Some documents have

4 ERN numbers and we have marked those. Other documents do not have the ERN

5 number, so the Prosecutor can't find them, and we'll have to deal with

6 them, process them, copy them, and send them to the Prosecutor. So in

7 addition to making the summaries for the witnesses who are on the list,

8 this is a very lengthy process, requiring a lot of time. We have done our

9 best to make a list of the documents, to select them, and to put them on

10 the list, and we know that the problem exists. We are fully conscious of

11 that. Of course, during the coming week we'll try and deal with the

12 problem so that we can supply the Prosecution with the material necessary.

13 When the first witness testifies, the Prosecutor will certainly have a

14 list of the material that we wish to introduce through that witness.

15 So those are the circumstances. I can't say any more than that,

16 Your Honour.

17 JUDGE MOLOTO: Yes, Mr. Whiting?

18 MR. WHITING: Your Honour, by my count, there are only 142

19 documents that we are seeking, and I'm not sure why it should take a week

20 to copy 142 documents. That should be done -- should be able to be done

21 today and if, at the latest, Monday. I would agree to having them first

22 thing on Monday, but it seems to me that's certainly enough time to copy

23 142 documents.

24 JUDGE MOLOTO: During the short break, I thought we -- we became

25 aware of a further filing by the Defence which increases the number of

Page 6017

1 exhibits from 262 -- from 120 to 262. I'm not sure whether you have seen

2 that filing, Mr. Whiting.

3 MR. WHITING: I do. I have it here in front of me. And this is

4 -- this is -- the first 120 exhibits are ones that have ERN numbers. We

5 do not need copies with those. We are fine with that. We will print out

6 our own copies. That's fine. The second list contains 142 items, and

7 that's what I was referring to. Those are the ones that we need copies

8 of, and I would think that by Monday -- I don't see what the difficulty

9 would be providing us copies of those by Monday.

10 JUDGE MOLOTO: Yes, Mr. Milovancevic?

11 MR. MILOVANCEVIC: [Interpretation] We will do that, Your Honour,

12 yes, we will have it by Monday.

13 JUDGE MOLOTO: Thank you very much. The next point?

14 MR. WHITING: Thank you, Your Honour. The next point has to do

15 with expert witnesses from the Defence. As far as we can tell, there are

16 two experts identified on their list, MM-132 and MM-133. We note that the

17 description -- with respect to MM-132, the Defence has written in their

18 summary that the witness has prepared a written statement in accordance

19 with Rule 94 bis. With respect to MM-133, the Defence writes that the

20 witness will prepare a written statement. So the distinction has been

21 made. We would ask, with respect to the one -- to the expert witness who

22 has prepared the expert report, that that be filed on us, that we be

23 provided a copy immediately of that.

24 Rule 94 bis contemplates -- which deals with expert reports,

25 contemplates a 30-day period after the opposite party receives an expert

Page 6018

1 report for the opposite party to evaluate and consider that report and

2 determine whether they will contest it or not. My concern is that if

3 these aren't acted on soon, we will be facing delays later on. If this

4 report is ready, there is no reason why it can't be provided to us now,

5 triggering the 30-day period for us to evaluate it.

6 I would secondly ask that, with respect to the expert who has not

7 yet prepared the report, according to the Defence, that perhaps we could

8 get some indication of when that might be ready and when that might be

9 filed, keeping in mind this 30-day period that will have to run.

10 JUDGE MOLOTO: Fair request, Mr. Milovancevic?

11 MR. MILOVANCEVIC: [Interpretation] Your Honour, certainly. We are

12 aware of 94 bis Rule and the deadlines there. And we shall give the

13 Prosecutor the report as soon as we are physically able to do so. And I'd

14 like to ask my learned friend of the Prosecution to bear the following in

15 mind: We will certainly respect the deadline and leave expert witnesses

16 for a later stage of the Defence case so that the Prosecution will

17 certainly have enough time. All we are dealing with now is the situation

18 as it stands at the moment. So as soon as the first report is accessible

19 to us, as soon as we receive it in The Hague, we will send it over to the

20 Prosecution. It is being prepared as we speak, and we'll do that.

21 JUDGE MOLOTO: Mr. Milovancevic, if we could just be a little

22 forecast: One, how soon will you be physically able to give the

23 Prosecutor the report? Two: The request is that the 94 bis report that

24 has already been written out be given now, or today sometime, and then the

25 one that still has to be written, give us an estimation of time by when

Page 6019

1 you think it will be given. I hear what you say there, but unfortunately,

2 you are not answering the question, the request, as it came.

3 MR. MILOVANCEVIC: [Interpretation] Your Honour, the second report,

4 which isn't finished yet, we could hand over immediately after the recess.

5 That second one. The one that is complete, it's being typed out, printed

6 out, and before the weekend, we can't complete the job physically. It has

7 to be ready so that we can receive it and then hand it over to the

8 Prosecution. So would the Trial Chamber please bear that in mind and try

9 and understand the position we are in?

10 JUDGE MOLOTO: Only if you tell us and you sort of play your cards

11 open with us. Where is it being typed, how long will it take to type?

12 When will it be sent to you? And how long will it take to reach you? You

13 know, if you want the Chamber to take -- to accommodate you, please play

14 open cards with the Chamber.

15 MR. MILOVANCEVIC: [Interpretation] Your Honour, of course it is in

16 our best interests to provide you with facts. The first report that is

17 being printed, that is in the pipeline, is a military expert report. It

18 is finished. The material has been written. But it is now being typed

19 out.

20 JUDGE MOLOTO: Where, where, where?

21 MR. MILOVANCEVIC: [Interpretation] In Belgrade. And we expect -

22 i.e., I have information - that we should have it by the end of the

23 weekend. This is the situation at hand. This is what we are facing. And

24 the situation with the expert report, the military report, is that it has

25 been drafted, it is being typed out, it is being compiled, it is being

Page 6020

1 marked in the way it should be marked, it is being processed, and that's

2 why we have told you that the report is ready. And the second one is

3 being drafted.

4 JUDGE MOLOTO: Before you go to the second one. You say you will

5 have this first one by the end of the weekend. Can we then say that by

6 Monday morning, you can give a copy to the Prosecution? By Monday, the

7 10th?

8 MR. MILOVANCEVIC: [Interpretation] Your Honour, if I could kindly

9 ask you that this should -- that this isn't on Monday the 10th but

10 Wednesday because that would give us time to do our part of the job, as we

11 should. That material is now in Serbian. It has to be translated. And

12 we now face this technical problem that is connected with the work of

13 other people, not only the expert himself. That's why I am asking for

14 this deadline, which I hope we will be able to meet, the deadline being

15 Wednesday.

16 JUDGE MOLOTO: Okay, Wednesday the 12th. Okay. The second

17 report, Mr. Milovancevic?

18 MR. MILOVANCEVIC: [Interpretation] That one could be prepared

19 immediately after the recess; i.e., in mid-August.

20 JUDGE MOLOTO: Why can it not be prepared almost immediately and

21 during the recess, if need be, so that immediately we come from recess, it

22 is discovered to or disclosed to the Prosecution?

23 MR. MILOVANCEVIC: [Interpretation] Your Honour, I may have not

24 been precise. This is what I meant. Immediately after the recess, we

25 will be able to disclose this material to the Prosecution, and this is

Page 6021

1 what I had in mind. I apologise for the imprecision.

2 JUDGE MOLOTO: Thank you. That's the answer finally.

3 MR. WHITING: Thank you, Your Honour. That's absolutely fine with

4 the Prosecution.

5 JUDGE MOLOTO: Thank you very much.

6 MR. WHITING: Though I would note that in our -- the 30-day time

7 in Rule 94 bis starts to run when we receive an English version of the

8 report.


10 MR. WHITING: So -- my final point is really a minor one --

11 JUDGE MOLOTO: Before you go to the final point, so it is so

12 ordered, the one will be given on Wednesday the 12th, the first report,

13 and the second report immediately on arrival, that is on the 14th of

14 August.

15 Your final point, Mr. Whiting.

16 MR. WHITING: Thank you, Your Honour. The final point is really

17 just to note that the Bench has emphasised the importance of the Defence,

18 with respect to the next week and the week after, informing the

19 Prosecution of which witnesses will testify, in addition, the exhibits

20 that will be tendered through those witnesses. I assume from that but

21 just wanted to underscore that this is a protocol for the future of the

22 Defence case and that we will always be informed ahead of time with some

23 notice - at least a week, I would think - which witnesses are going to be

24 coming, which -- the next witnesses are going to be coming and which

25 exhibits that will be tendered through those witnesses.

Page 6022

1 JUDGE MOLOTO: I think that goes without saying, Mr. Milovancevic.

2 MR. MILOVANCEVIC: [Interpretation] I agree with that, Your Honour.

3 JUDGE MOLOTO: Thank you very much.

4 [Trial Chamber confers]

5 JUDGE MOLOTO: The final point I would like -- the Bench would

6 like to raise with the parties is just to give you notice that early in

7 the autumn, when we come back from recess, the Chamber would like to

8 provide a scheduling order for the remainder of the trial, and we just

9 mention this just to put you on notice so that you can -- so that you can

10 be able to expect, having been given that scheduling, when to be ready for

11 any rebuttal or rejoinder evidence, final briefs and closing arguments.

12 We will do that as soon as we come back in early autumn, okay?

13 MR. WHITING: Your Honour, I would just ask if we could -- if the

14 parties could briefly be heard with respect to those issues before the

15 scheduling order is issued, we would be grateful.

16 JUDGE MOLOTO: If you will remember to ask to be heard at the

17 time, the Chamber is -- at times just becomes forgetful and might go ahead

18 and give an order.

19 MR. WHITING: I'll remember to raise it after the recess.

20 JUDGE MOLOTO: Okay. You do that.

21 You're finished on your items.

22 Mr. Milovancevic, do you have any items that you would like us to

23 deal with during this conference that we haven't so far dealt with?

24 MR. MILOVANCEVIC: [Interpretation] No. At this point in time, no,

25 Your Honour. The only thing I would kindly ask for is the precise

Page 6023

1 scheduling for next week, i.e., when the sessions start next week, whether

2 in the morning or in the afternoon. I'm not sure about that so I would

3 kindly ask you to advise me as to that.

4 JUDGE MOLOTO: Thank you, Mr. Milovancevic. You will certainly be

5 advised of that. We are sitting in the mornings next week, at 9.00. So

6 right through the week. I guess I'm correct?


8 JUDGE MOLOTO: Is that it?

9 MR. MILOVANCEVIC: [Interpretation] Thank you.

10 JUDGE MOLOTO: Thank you.

11 [Trial Chamber confers]

12 JUDGE MOLOTO: Thank you very much. Just to remind you again, on

13 the 13th, we are starting 20 minutes late.

14 Court adjourned and we will reconvene on Tuesday, the 11th, at

15 9.00, in this courtroom.

16 Court adjourned.

17 --- Whereupon the Pre-Defence Conference adjourned

18 at 11.12 a.m., to be reconvened on Tuesday, the 11th

19 of July, 2006, at 9.00 a.m.