Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Friday, 6 February 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.50 a.m.

 5             JUDGE ROBINSON:  First of all, I want to mention a letter which I

 6     received from Mr. Milan Lukic.

 7             Mr. Lukic, the matter that you raised in the letter, I must

 8     inform you, is one that can only be addressed by the Trial Chamber.  Of

 9     course, you may not know all the procedures of the Tribunal.  You are

10     represented by counsel, and matters relating to the trial must be

11     presented in the usual way through counsel.

12             Mr. Alarid, today, like many other days, no Defence witnesses

13     available for testimony.  I understand that arrangements are in place to

14     bring four witnesses next week.  We are scheduled to sit Monday, Tuesday,

15     Wednesday, and Thursday of next week, and I hope that the production will

16     be better.  But quite frankly, the situation cannot be allowed to

17     continue, Mr. Alarid.

18             We have been reviewing the progress of the Defence case.  It is

19     lamentably slow.  Eleven witnesses have been heard in 12 sitting days,

20     spread over a period of more than two months since the close of the first

21     Defence case.  Even taking into account the winter recess and two extra

22     days on which the Chamber did not sit, a total of 12 sitting days have

23     been lost.  This is more than 50 percent of the time available to you so

24     far, and 30 percent or a third of the time available overall.

25             The date of the 10th of March for completion of the presentation

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 1     of the Defence case remains.  Only 12 sitting days remain in February,

 2     plus 6 in March, and you still have a potential 30 witnesses to call.  Of

 3     these, six are experts, and these may be cross-examined, likely to last

 4     at least two days.  We calculate that you would need to call all of your

 5     other witnesses within the next two to three weeks.  Otherwise, you may

 6     run out of time.

 7             I bring this matter to your attention.  It has been brought to

 8     your attention before, and the Chamber will be considering what steps,

 9     what measures may be taken to address it.

10             I turn to some matters arising from motions before the Chamber.

11     There is a Defence motion pending for protective measures for two of the

12     witnesses to be heard next week.

13             Ms. Sartorio, the Chamber needs to have an expedited response to

14     these requests.  Are you in a position to respond orally now or do you

15     need a short time in which to file a written submission, in which event

16     that would have to be no later than 4.00 p.m. today, or perhaps Monday

17     the 9th?

18             MS. SARTORIO:  Your Honour, it was our intent to address the

19     motions for protective orders with regard to each witness when the

20     witness came to testify.  That's our plan.  If you want something

21     earlier, we're happy to submit something, but we thought it would be just

22     more expeditious to address them when the witness came.

23             JUDGE ROBINSON:  Yes.  I am reminded that one disadvantage of

24     that is that the witness does not know before travelling, whether that

25     witness will receive protective measures.

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 1             MS. SARTORIO:  That's a fair statement, Your Honour.

 2             JUDGE ROBINSON:  In those circumstances, yes, I think you should

 3     file the written response.  This, of course, doesn't mean that in

 4     exceptional circumstances we won't hear an oral request, you know.

 5             Turning to the Defence experts, we had ordered written

 6     submissions by the parties by last Monday, 2nd February, on a matter

 7     relating to Dr. Hall.  We have received a submission from the

 8     Prosecution, but none from the Defence.

 9             Mr. Alarid, we have to resolve this matter quickly.  Do you have

10     a position on this or may we take it that you have received information

11     you sought as to the relevant jurisprudence?

12             MR. ALARID:  The truth of the matter is, Your Honours, we were in

13     Bosnia when the order came down, and so we didn't get that until just

14     before we were supposed to visit the client in jail on Monday.  That's

15     why we didn't file a response.  We filed a motion for extension of time

16     with the Court, just simply asking for the 14 days normally allowed for,

17     and it's already been filed, so that was the one of our submissions from

18     last night that did that.  We simply asked for the 14 days normally

19     allowed for such a motion and response time.

20             And I understand the Court can enlarge or reduce the time, based

21     on exceptional circumstances and times of the case, but I would ask the

22     Court to consider the fact that our limited resources -- I mean, we

23     really only have so many man hours between Danny and I to put in a

24     particular day as we try and cover all our duties in relation to the

25     case, not just witness organisations but continued prosecution of legal

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 1     issues, and preparation for witnesses, and just communications with

 2     clients, communications with the OTP, communications with WVS.

 3             JUDGE ROBINSON:  Mr. Alarid, you have filed a motion.  We'll

 4     consider it.

 5             MR. ALARID:  Yes, Thank you.

 6             JUDGE ROBINSON:  As for the remaining three experts, can you

 7     confirm that they are now available and will be provided to the

 8     Prosecution, the reports?

 9             MR. ALARID:  Yes, yes, all notices, reports are being completed.

10     We filed them all last night.  They should be, and in response to

11     Mr. Groome's, they just haven't hit the e-mail yet, but they were filed

12     late last night, so all reports are in.

13             JUDGE ROBINSON:  Very well.  Unless there are any other matters

14     that the parties wish to raise, we will adjourn.

15             MR. ALARID:  Your Honour, actually, we do have one.

16             Just to let you know what's coming down the pike, and I would

17     like to ask the OTP and the Court for some assistance in this matter.  We

18     believe that we have located two victims of the Pionirska Street fire

19     alive and well.  One of the complicating factors is that we have not

20     received the date of birth, father's name nor ID numbers that were

21     registered to these people, because, as you know, Annex A is, I think,

22     painfully short on information of identification and only puts us in the

23     main direction.  But we believe that we have found two of the named

24     victims, one in the United States, one in Austria.

25             In order to confirm and get proof of life, we would need as much

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 1     information on the Annex A's named individuals as possible.  And it's our

 2     understanding, just like in the United States, where we have a personal

 3     identification number, a social security number, Bosnia had in place the

 4     same ID requirements or similar ID requirements; and it would be

 5     extremely helpful if we had those identification numbers to assist, INS

 6     or both the immigration services of both Austria and the United States to

 7     comply with our request for assistance.

 8             JUDGE ROBINSON:  Ms. Sartorio, are you in a position to provide

 9     that information?

10             MS. SARTORIO:  Well, certainly not -- well, first of all, it

11     would be a lot easier if they gave us the names of the two witnesses, if

12     we submitted a request, but we're going to have to go through a formal

13     request for assistance to the United States Immigration Service or

14     Social Security Department.  They don't give our social security numbers

15     just by request from us.  So that could take a long time.  But if we ask

16     for 70 witnesses, that's going to take longer than if they tell us the

17     names of the two witnesses that they think are alive and well.

18             MR. ALARID:  Well, no, that's misstating our request -- or

19     misunderstanding our request, rather.  It's simply, no, we want the

20     original Bosnian identification numbers that should have accompanied, we

21     assume based on the research from the OTP investigation.  The proof of

22     death in this case is unorthodox.  We had a single witness come in, look

23     at this list and say all these people were there, and that was about the

24     extent of it.

25             JUDGE ROBINSON:  You're trying to get the original Bosnian

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 1     identification number of what, of whom?

 2             MR. ALARID:  Of the list of victims, the entire list of victims,

 3     because we're looking for them all right now, Your Honour.  I mean, I'm

 4     not asking for the OTP to do my work.  I simply want them to give me the

 5     information I think they should have had as part of an ordinary

 6     investigation from the outset.

 7             JUDGE ROBINSON:  Ms. Sartorio.

 8             MS. SARTORIO:  Your Honour, we can certainly give them the

 9     information we have, but I certain we already gave them the information

10     we had in the disclosure that we made to them of all the documents that

11     we have involving this case.  So I don't believe that we're obligated to

12     go out and find this information.  And it's, again, they need to go

13     through the record.  They want us to do the work by going through records

14     of missing persons and death certificates, and they have all of the

15     documents that are pertinent to this case and the victims in this case,

16     and they simply should just have to do the work themselves.

17             JUDGE ROBINSON:  Thank you.

18             She has spoken, Mr. Alarid.

19             MR. ALARID:  Your Honour, my response is this is a homicide case.

20     It's their job to prove death.  It was done in a very unorthodox way as

21     to how I'm normally used to it, but of course I'm normally used to one

22     person being dead, not a slew.

23             JUDGE ROBINSON:  In their view, they have done their job.  If

24     their case is defective, well, you make that point.

25             MR. ALARID:  Well, Your Honour, I guess that is a good point, I

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 1     guess.  I'm not sure how to respond to that, other than that's a good

 2     point.

 3             But other than that, Your Honour, I mean, I think if there's a

 4     high likelihood that this trial is operating with some of the named

 5     victims alive, then that is a serious consideration; and I would ask you

 6     to consider the experts reports as filed, as bolstering our position that

 7     the possibility that these crimes did not occur or did not occur in the

 8     manner in which some witnesses believe they did, by virtue of perspective

 9     and ability to observe; that if we are saying that Milan Lukic killed 60

10     people, but a percentage of them show up alive, then how can we be

11     assured, without some other form of proof of death which is more regular

12     and accepted in the judicial systems around the world, then that is a

13     serious problem for this case if we are bringing up alive people at this

14     juncture in the proceedings.

15             JUDGE ROBINSON:  Thank you, Mr. Alarid.

16             We are adjourned.

17             Anything else, Ms. Sartorio?

18             MS. SARTORIO:  No, Your Honours.  Thank you.

19             JUDGE ROBINSON:  So we'll adjourned until Monday.

20                           --- Whereupon the hearing adjourned at 10.05 a.m.,

21                           to be reconvened on Monday, the 9th day of

22                           February, 2009, at 2.15 p.m.