Delalic & others Case n° IT-96-21-T 17 January 1997

Case No. IT-96-21-T


Friday, 17th January 1997


(The Presiding Judge)






MR. ERIC OSTBERG, MS. TERESA McHENRY and MR. GIULIANO TURONE appeared on behalf of the Prosecution

MS EDINA RESIDOVIC and PROFESSOR EUGENE O'SULLIVAN appeared on behalf of the accused Delalic
MR. BRANISLAV TAPUSKOVIC and MS MIRA TAPUSKOVIC appeared on behalf of the accused Mucic
MR. SALIH KARABDIC appeared on behalf of the accused Delic MR. MUSTAFA BRACKOVIC and MS CYNTHIA McMURREY appeared on behalf of the accused Landzo

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1   Friday, 17th January 1997.

2   (Open Session)

3   (10.00 a.m.)

4   THE PRESIDING JUDGE: The session this morning is for the consideration of the motions

5   which have been presented by counsel, so we will begin with the consideration of the

6   motions. Will counsel, please, let us have the appearances?

7   MR. OSTBERG: Do you want me to start, your Honour?

8   THE PRESIDING JUDGE: Yes, the Prosecution first.

9   MR. OSTBERG: Thank you, your Honour. My name is Eric Ostberg. I appear today with

10   co-counsel Mr. Guiliano Turone and Ms. Teresa McHenry and our legal assistant, Miss Elles van

11   Dusschoten.

12   THE PRESIDING JUDGE: Thank you, Mr. Ostberg. For the Defence now, can we hear you?

13   MR. KARABDIC [In translation]: I am Salih Karabdic, attorney from Sarajevo, appointed as

14   the Defence counsel for the accused Mr. Hazim Delic. The Tribunal has also assigned a

15   co-counsel to me but he has not arrived yet.

16   THE PRESIDING JUDGE: Thank you very much, Mr. Karabdic. Yes, Mr. Tapuskovic?

17   MR. TAPUSKOVIC [In translation]: I am Branislav Tapuskovic. I am the Defence counsel of

18   Zdravko Mucic. This is my assistant, Mira Tapuskovic, also an attorney.

19   THE PRESIDING JUDGE: Thank you very much. Can we hear you, Ms Residovic?

20   MS RESIDOVIC [In translation]: I am Edina Residovic, Defence counsel for Mr. Delalic,

21   attorney from Sarajevo. I have co-counsel Mr. Eugene O'Sullivan as co-counsel for the

22   accused.

23   MR. BRACKOVIC [In translation]: Good morning, your Honours. Mustafa Brackovic,

24   Defence counsel of the accused Esad Landzo. I am representing the accused with my

25   learned colleague Cynthia McMurrey, counsel from the US.

26   THE PRESIDING JUDGE: Thank you very much, Mr. Brackovic. Now, I think you understand the

27   pattern in which the presentation of the cases would go. Now I welcome all new counsel who are

28   now appearing before us for the first time. I believe you understand that you have leading

29   counsel who would at each time speak, unless the right to speak has been assigned to

30   co-counsel. If leading counsel is not likely to be present, he should give advance

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1   information to the Trial Chamber so that you know why he is not there and when he is

2   likely to appear.

3   This morning, as I indicated in the opening, we will deal with all pending motions. There are quite

4   a number of them which have been filed, nine on behalf of Landzo, one on behalf of Delic

5   and two on behalf of Delalic. So we will take them in the order in which I have indicated.

6   The Prosecutor has reacted, as far as I know, at least to the nine Landzo motions, and

7   especially those for the adjournment. So, will Mr. Brackovic now speak on his motions

8   and take them individually, not together?

9   MR. BRACKOVIC: Your Honours, I would like to present the motion of the Defence for

10   adjournment of trial and, as regards the rest of the motions submitted by my colleague, my

11   learned colleague, Miss Cynthia McMurrey, I would request that the Trial Chamber

12   allows her to present those arguments, because even though these motions have been

13   submitted in co-ordination with me, I would not be able to present it in as good a way as

14   my colleague would because she has worked on them.

15   So I would ----

16   THE PRESIDING JUDGE: Thank you very much. The application is granted. She could

17   present the motions which she was instrumental in bringing on. Yes, you can carry on.

18   MR. BRACKOVIC: Thank you. On December 31st 1996, the Defence filed a motion for

19   adjournment of the date of the beginning of trial. In that motion there are detailed

20   arguments given. These arguments are presented in more or less detail, and these are the

21   reasons why the Defence has filed them. The main reason for this motion is that, in our

22   opinion, the Defence of Esad Landzo is not ready for the trial as set on January 28th. I will

23   list out the arguments and I will start with point (3).

24   The statements provided by the Prosecution, that means from the Prosecution

25   witnesses, have been distributed to the Defence too late. Given the date of the trial that

26   had been set previously on December 5th 1996, the Prosecutor has turned over to the

27   Defence 43 witness statements and they were all submitted in the English language.

28   However, as English is not the native language of the accused, which he speaks and

29   understands, the Prosecution had an obligation to have all these statements translated into

30   the mother tongue of the accused.

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1   It is incomprehensible to the Defence that all these statements would be

2   submitted in English when they were all given in Bosnian, Serbian and languages of the

3   region of the accused, but the original statements were never submitted in one of these

4   languages. Instead, they were submitted in the English language, and this is the main

5   reason why these statements had to be translated into the language of the accused.

6   Immediately before December 5th 1996, that is, on November 23rd, the

7   Prosecution has also given the Defence 19 witness statements of potential witnesses at the

8   trial. Since this is a problem that is also present with regard to all the other co-accused, all

9   Defence counsel have jointly reached an agreement to ask that all these statements be

10   translated and handed over to the Defence. Since there are quite a number of statements,

11   some of them very long, some of them are seven, eight and even 10 pages long, this work

12   could not be done very quickly.

13   I was present here in The Hague at the Tribunal until December 19th. During

14   my stay here in The Hague the accused was in a position to get less than one half of the

15   translated statements. At the time when this motion was filed, the other half, a bit more

16   than a half, of the statements the accused only received later but was not in a position to

17   discuss them with his counsel.

18   Only after my arrival in The Hague on January 6th 1997 and in the period

19   between January 6th and 9th of this year was I in a position to discuss with the accused

20   the contents of the statements which were received later, subsequently, in the period

21   between December 19th and January 6th.

22   However, this was a very brief period of time, only three days, so that we were

23   able to only superficially discuss these statements. It is only now that I am in a position

24   to conduct further conversations with the accused regarding all the statements which the

25   Prosecutor has given to the Defence and which it intends to use at trial.

26   So this is one of the main reasons which I emphasise for the Defence's motion

27   for adjournment of trial. I would only like to add that after the motion for the adjournment

28   of trial has been filed, after January 6th 1997, the Defence became familiar with the final

29   list of witnesses that the Prosecution intends to call at trial or may call at trial.

30   The next argument in our motion for adjournment of trial, which is listed under

31  , as the Prosecution pointed out its intention to use a large number of video recordings

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1   at trial, on 10th December 1996 the Defence submitted a written request to the Registry of

2   the Tribunal that a VCR player be put at the disposal of the accused. On December 12th

3   I received in writing a notice that a VCR player has been secured and will be put at

4   the disposal of the accused for two weeks, but the ability of the accused to review the

5   video recordings was given to the accused only after 12th December 1996, after several oral

6   requests at the UN Detention Unit and the Defence also asked Mr. Berisford and Mr.

7   Marro on one occasion, I think it was several days before the accused was finally given the

8   use of a VCR player.

9   Given the fact that the Prosecutor intends to use nine video recordings that have

10   been provided to the Defence to use as evidence at trial, and given the fact that video

11   recordings have been taken from other co-accused -- I think it is some 90 video recordings

12   -- I think that the need of the Defence is to review all the video recordings that the

13   Prosecutor intends to use as evidence at trial, but it should also be allowed to review all

14   other video recordings that have been taken from all the co-accused.

15   This is one of the reasons why the Defence has the right and also desires to have

16   a real possibility to review video recordings, even those that the Prosecutor does not

17   intend to use. By reviewing those, it can find out whether there are circumstances that are

18   exculpatory or that would be mitigating in regard to the alleged acts.

19   I would like to point out another fact. It is something that I found out last night

20   when I visited my client in the Detention Unit. Yesterday, the guards in the Detention

21   Unit have temporarily taken away from him his VCR player for several hours. The reason

22   they have given him is that the other co-accused also needed to review video recordings. I

23   would like to point out that the accused is not in a position even now to have full use of

24   the VCR player. This certainly affects his ability to properly review the video recordings.

25   I would further like to point out -- this is point (6) of the motion for the

26   adjournment of trial -- where in a notice that the Prosecution filed on December 17th and

27   states that the Prosecution has several statements of Celebici detainees that were obtained

28   from the authorities of Republika Srpska and non-governmental organisations, and that

29   some of them may be called to testify at trial.

30   As Defence counsel, as soon as I received this notice of December 17th 1996, I

31   requested that these statements be made available to me. However, since I was in The

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1   Hague until December 19th, the Prosecution was not able to prepare this material for me

2   until that date, but I was only able to acquaint myself with this material in the period of

3   January 6th through 9th or, more specifically, on January 8th 1997.

4   The same can be said of point (7) of the motion for adjournment of trial

5   concerning the photographs, video tapes and the model of the alleged place. The Defence

6   was only able to acquaint itself with these materials on January 8th 1997.

7   Further, under (8) of the motion for the adjournment of trial, it states that the

8   Defence was informed that the Prosecution intended to call expert witnesses to give

9   evidence on military matters, political structures and the relevant background of the

10   conflict at a very late date. These expert witnesses are as follows: Dr. Francine Friedman,

11   from the US, Dr. Marie-Janine Calic from the Federal Republic of Germany and a retired

12   General de Vogel from the Dutch military forces.

13   However, at that time the Defence did not get any findings or opinions of these

14   expert witnesses which is necessary for the Defence, because these are very important

15   issues which bear on the background and count 2 of the indictment and with count 48 of

16   the indictment.

17   As Defence counsel, it was only yesterday that I received a rather brief

18   document regarding the potential findings and opinions of the proposed expert witnesses.

19   However, it is my opinion, I feel, that this material has not been given to me in a timely

20   fashion and, besides, the Defence believes that it is completely insufficient.

21   The Defence would like to bring its own expert witnesses to familiarise them

22   with the findings and opinions of the experts proposed by the Prosecution. The Defence

23   wants to respond properly and adequately without having to be put in a position of a

24   silent observer when the expert witnesses proposed by the Prosecution present their


26   This fear is in particular present because the expert witness that the Prosecution

27   intends to call -- I am referring to Dr. Marie-Janine Calic -- it is obvious from her last name

28   that her origin is from former Yugoslavia; and also with respect to General de Vogel, there

29   is a certain fear because of the unfortunate role of the Dutch forces in the safe haven of

30   Srebrenica when with their passive behaviour they allowed the execution of over 8,000

31   innocent civilians.

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1   The Defence further stated in paragraph (9) that the findings of the

2   non-governmental organisations -- I am referring to Helsinki Watch and the OSCE -- were

3   submitted in English. However, because the accused does not speak or understand this

4   language and also in the light of the obligation of the Tribunal to submit all evidence to the

5   accused in the language of the accused, this fact also constitutes a reason for which the

6   adjournment of the trial was requested.

7   Likewise, as regards paragraph (11) of the motion for adjournment of trial, the

8   Prosecution in its notice of 5th December advised the Defence of its intention to use during

9   trial as evidence several newspaper reports in the period from 24th through to 26th July.

10   However, all these press reports that were submitted to the Defence on 10th December

11   were not in English and were not in Bosnian. They were in Arabic language. This is the

12   language that neither the Defence counsel nor the accused speak. Only later -- I think it

13   was on 8th January 1997 -- did the Defence receive the translation of these press reports.

14   They were translated into English.

15   In paragraph (12) of the motion for adjournment of trial, the Defence states, or it

16   indicated, the involvement with the problem of the mental health of the accused. None of

17   the accused has had such problems. Consequently, none of the Defence counsel had any

18   reason or need to be involved with these kinds of problems.

19   The Trial Chamber knows that three examinations have already been conducted,

20   three different examinations. The first examination dealt with the compatibility of

21   detention with the current mental condition. The second evaluation had to do with the

22   fitness of the accused to stand trial. The third evaluation dealt with the mental

23   responsibility of the accused at the time when the alleged crimes he has been charged with

24   were committed.

25   In addition to the three evaluations, the Defence counsel had a special obligation,

26   namely, it had to file supplements to the motion for provisional release of the accused as

27   well as the motion for modification of conditions of detention. Several status conferences

28   were held to discuss these matters, these motions, the status conference of 12th December

29   and 17th December. At those status conferences, the Defence counsel of the other accused

30   were not obliged to take part because it had nothing to do with any of the issues that had

31   to do with their clients.

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1   On 9th January 1997, the Defence counsel had to attend a hearing before the

2   President of the Tribunal about the motion for modification of conditions of detention.

3   The reason why I say all this is to explain that the Defence has not been able to participate

4   fully in the investigation for which a deadline or a period has been set in the case of the

5   accused Esad Landzo, and that was 15th January 1997.

6   I would further like to point out that with regard to the problems mentioned

7   above, the Defence has also been involved in drafting a number of motions and

8   correspondence with the Prosecution. All these reasons (and these are objective facts)

9   have caused the Defence counsel to be away from the investigation and for a while even the

10   investigator who has been engaged in obtaining additional guarantees from the BH

11   government, and because of that the Defence has not been able to conduct its investigation

12   by the date that was set for that, and that was 15th January 1997.

13   In paragraph (13) of the motion for adjournment of trial, the Defence also

14   pointed out that the weather conditions were very, very bad in Bosnia and Herzegovina

15   where the investigation was conducted in the period from 24th and 25th December until

16   this day. In this period in Bosnia and Herzegovina, in particular in the region between the

17   cities of Sarajevo and Konjic, the weather deteriorated very seriously and there was heavy

18   snow. The temperatures were very low, even down to minus 15 centigrade. I think that

19   this is a well-established fact. The cold wave, so to speak, had swept Europe in this

20   period.

21   I can read just a few headlines from the press to prove that this, indeed, is a

22   very well-established fact: "Town is ice bound. Ice on the road. Very bad road conditions

23   on most roads. Even salt does not help. The winter service claims that their machinery is

24   red hot. Icy rain, slippery roads. The Krajina is ice bound. The frost is here again. Entire

25   Europe is hit by low temperatures and blizzards". Several reports from January 13th and

26   14th: "In the most part of Bosnia and Herzegovina the road surfaces are wet and slippery.

27   There is also black ice and further snow fall has caused additional problems". This is 13th

28   January. 14th January: "Very dangerous black ice in spots, in places, on the roads".

29   I would like to say further, as regards the weather conditions, I would like to

30   point to the fact that I was forced on 10th January this year, because my flight had been

31   cancelled, my flight to Sarajevo, to use a bus. Because of the heavy snow fall and black ice

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1   on the road, we had to stop for three hours in only one of the places where we stopped.

2   Likewise, because of the bad weather conditions it was very difficult for me to return to

3   The Hague because, again, I was not able to fly from Sarajevo to Zagreb because the

4   weather conditions were very bad and because of that the flight had been cancelled.

5   I only learned that the flight had been cancelled very late, and because I already

6   had the experience of travelling from Zagreb to Sarajevo when the flight had also been

7   cancelled, I again had to travel by bus. I had to leave 24 hours earlier than I would have

8   had, because I was afraid that if I travelled in any other means or in any other way I would

9   have missed the flight yesterday to Amsterdam and be late for the status conference

10   today.

11   I can say that in these conditions which have been, frankly, impossible, the

12   Defence has tried (and has partly succeeded) in conducting its investigation. But, under

13   normal weather conditions, the investigation would have been conducted in a much better

14   way, a much more thorough way.

15   Please allow me also to point out the reasons listed in the supplement to the

16   motion for adjournment of trial. Let me just emphasise one of the reasons. My learned

17   colleague Miss Cynthia McMurrey will say a few more words about the supplement. I

18   would just like to say that the Defence now has the possibility, which has only arisen

19   lately after there has been an improvement in the freedom of movement in the territory of

20   Bosnia and Herzegovina, so now the Defence is able to conduct the investigation and to

21   attempt to interview some of the witnesses of the Prosecution. Pursuant to Article 21,

22   paragraph 4(E), I think it is necessary for the Defence of my client, Mr. Esad Landzo, and

23   the Defence will try to conduct the investigation and interview some of the Prosecution

24   witnesses. That much is certain.

25   The Defence was not in a position to do so before, due to the fact that it was

26   only in January that it received the final list of Prosecution witnesses, and also due to the

27   fact that this improvement in the freedom of movement is a recent development, maybe in

28   the past month or so. This is the reason why the Defence also asks for the trial date to be

29   adjourned for a longer period than stated on the original motion for adjournment of trial and

30   in the supplement. In fact, in the supplement there has been an error, so that instead of

31   20th May 1997 the supplement erroneously stated 20th March 1997. However, my

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1   co-counsel Cynthia McMurrey will give a more detailed explanation of this error, but these

2   are then the main reasons why the Defence asks for the trial date to be adjourned.

3   Some of the reasons in its opinion have caused the Defence, to a greater or lesser

4   extent, to be unprepared to be on trial on 28th January 1997. I would like to respond to

5   the Prosecution response in which they state that they would not be opposed to a smaller

6   delay until, I think, 18th February. We think that this period is very short, and that all the

7   handicaps the Defence has had to face could not be solved in this period for a trial, as the

8   Prosecution has proposed, that would start on 18th February 1997.

9   I think that there are valid reasons for the Trial Chamber to rule that the trial be

10   adjourned for a period of less than four months, that is, until 20th May 1997. Thank you.

11   MS. McMURREY: If I may, your Honours, may I continue?

12   THE PRESIDING JUDGE: In respect of the motion for adjournment?

13   MS. McMURREY: Yes, your Honour.

14   THE PRESIDING JUDGE: Yes, you can.

15   MS. McMURREY: My learned colleague here has gone in depth into the specific reasons why

16   an adjournment is appropriate at this time, including his argument for force majeure, but I

17   want to go back to the general, if I can, and go away from the actual motion. I believe that

18   the inequities that have thwarted the Defence from having under Article 21 of the Tribunal,

19   it states of course that all persons are equal, that there will be equality and guarantees of

20   the minimum guarantees listed in (A) through (G) of Article 21.4. What happened when

21   we got here was (and I do not want to mislead the Tribunal), what we are saying here, even

22   though there are force majeure arguments and arguments of specific problems with

23   discovery of evidence, the only reason that the Defence is not prepared at this moment to

24   proceed to trial is due to the piecemeal, untimely disclosure of evidence by the

25   Prosecution. We have even as much as yesterday receiving new evidence and, after reading

26   the record from the November 1st status conference, even Judge McDonald stated it is

27   very clear that the Defence is in a different situation. Judge McDonald said: "The time for

28   turning over the evidence is obvious. It is behind what the Prosecution does because until

29   you receive what the Prosecution intends to use, then there is no way for you to know

30   what you may intend to use".

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1   I know the Tribunal is well aware of the fact that when we are just now getting

2   evidence, we have no way to investigate the validity of the evidence that is presented to us

3   at this point. We have no way even to evaluate the evidence until that moment, whether

4   we will use it or not, what possible defences we may come up with. So it puts us behind

5   the curve.

6   Going back to behind the curve, I only arrived here on January 7th, and I know

7   it is because this is only the second trial before this Tribunal, but the Prosecution has been

8   up and running for two years. They have investigators, they have legal research

9   specialists, they have a whole staff over there. I walked into what was labelled the

10   Defence room and there is nothing in there. We have no copying machines, no access to

11   legal research, nothing that would require the equality as stipulated under Article 21 of the

12   Statute.

13   So I want to commend the Registrar, once we had asked for the equipment and

14   the things that we think would put us on an equal status with the Prosecution, they have

15   bent over backwards to help us get running and maybe try to catch up with the

16   Prosecution. But at this point, because we are just not receiving evidence, and I will

17   specifically just cover a few of the points in the application for adjournment and also

18   would like to refer to my correction. We are asking for an adjournment to May 20th

19   instead of March 20th, because we feel that is the only effective way that we can be

20   prepared and possibly at least have an opportunity to review some of the evidence that

21   the Prosecution has presented to us.

22   We had a meeting with the Prosecution on January 8th. It was an informal

23   meeting down here in the lobby. During that meeting, it was told to us that they have

24   evidence in their possession that they have not reviewed yet. Under the Rule of turning

25   over exculpatory evidence, I believe that maybe they have a continuing duty to review that

26   evidence. It is our proposition that maybe we should have a neutral research person who

27   can go in there and index the evidence for us.

28   I do not believe that it would be fair to have the Prosecution decide what they

29   think is relevant to the Defence, or what they think may be exculpatory when they do not

30   know what our defence is all the way at this point. So, to be fair, maybe a neutral,

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1   detached research person who can go in and look at all the evidence, index it and give us an

2   idea of what it is that we might to need to ask the Court for disclosure of.

3   There is also the video tapes. Just an example of how difficult it is for us to

4   prepare, I have in my possession a document that I signed yesterday. There are several

5   hours of video tape statement by the defendant Mr. Delic. Yesterday, we were given the

6   tape but we have now one video machine in the Defence room. I am asked to sign the

7   release saying that I declare I will not take the video out of the Tribunal building, and that I

8   will return it to the office by a certain period of time.

9   When there is one video tape and there are four defendants here and we have one

10   access to one television in the Defence room which just came this week, it is impossible for

11   us to review all the video tapes that they have suddenly disclosed to us. They are saying

12   they are going to use nine (which we have not seen) but there are many more video tapes

13   that we feel it is our duty to review to determine whether they are relevant to the Defence

14   or not.

15   I believe the Prosecution has stated that they do not believe that we have a right

16   to interview Prosecution witnesses. Article 21 says that the defendant will have a right to

17   examine or have examined the witnesses against him. It would be inappropriate for us to

18   rely on the ability just to cross-examine a witness once the trial begins. We have an

19   absolute right, if available, to ask that Prosecution witness if they will talk to us. It not the

20   Prosecution decision whether we have a right to talk to the witness; it is the witness's

21   right to tell us he does not want to talk to us or he does want to talk to us. Up until now

22   we have had no access whatsoever to Prosecution witnesses, because most of the

23   witnesses' names were deleted and we have no way to get in touch with them. So that

24   puts us a little further behind the ball.

25   THE PRESIDING JUDGE: Excuse me. Actually, did you read out what the Article of the

26   Statute says? You read it out. Let us hear it.

27   MS. McMURREY: Read it out? (E)? Article 21.4(E) says: "The minimum guarantees the

28   accused shall be entitled to examine or have examined the witnesses against him and to

29   obtain the attendance and examination of witnesses on his behalf under the same conditions

30   as witnesses against him".

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1   I am sure that, subject to interpretation but how I read that, is that he has a

2   right; if they have to right to go and talk to our witnesses, then he has a right to talk to

3   their witnesses in an informal atmosphere out of the courtroom where they maybe more

4   likely to discuss what really occurred, rather than an adversarial condition here in the

5   courtroom. I am asking the Court for its interpretation of that, but I believe that under

6   common law we have a right to go out and discuss and ----

7   THE PRESIDING JUDGE: Actually, you have a motion on that.

8   MS. McMURREY: OK. Equal access motion?

9   THE PRESIDING JUDGE: Yes, that is quite different from your motion for adjournment.

10   MS. McMURREY: OK. Just in general, because of all the issues that Mr. Brackovic has

11   illuminated for this trial, because of the massive evidence that we have not had the

12   opportunity to review, because of the piecemeal disclosure of the evidence by the

13   Prosecution at this point, there is absolutely no way that justice can be served by making

14   us go to trial on January 28th. In general, based upon the issues that I placed before the

15   Court today, the Prosecution has had nine months to prepare its case for trial, they have

16   had two adjournments that they have asked for before and been granted, this is the first

17   adjournment requested by the Defence; if they have nine months to get their evidence

18   together, we are just now given evidence to start investigating, I believe that four months is

19   not an extreme amount of time to ask for. Thank you, your Honour.

20   THE PRESIDING JUDGE: Mr. Ostberg, can we hear from you?

21   MR. OSTBERG: Thank you, your Honour. These were many things at one time. I will just

22   start with pointing out that many of these arguments for the postponement is reflected

23   also in the other eight motions by the Defence for Landzo and also in the one motion from

24   the Defence of Mr. Delic. We will deal with these motions and we will divide the work

25   between us.

26   Mr. Turone will take up the question of the exculpatory evidence and make clear

27   to the Court that we have currently supported the Defence with anything that could be

28   exculpatory. We will go into detail on that. Ms. McHenry will talk about the discovery

29   procedure and the language used when we discover things. Our position is that we have

30   lived up totally to the Statute and to the Rules of this Tribunal.

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1   I will now go into some of the specific things raised by Mr. Brackovic and by

2   Ms. McMurrey. To start with, the equipment for reviewing of the video tape recordings,

3   I have to tell the Court that on 3rd July 1996 the counsel was given a list of all tapes and

4   told that they could inspect them, view them, if they so wished. Since they did not make

5   any request to see any of the videos or for help of equipment until December 1996, the

6   Registrar then made this equipment available to them. It is now available. This argument

7   cannot, in the submission of the Prosecution, be used for a motion of adjournment for four

8   months. Then I will leave this issue; this equipment is in place and please go on doing it,

9   you can go and do it whenever you like to.

10   I will now address the question of expert witnesses. There seems to be a

11   misunderstanding on the part of the Defence lawyers what an expert witness is. This is

12   something that the Prosecution called upon to support the Trial Chamber with objective

13   facts of the background to the crimes committed. Let us not, your Honours, lose sight of

14   this indictment we have before us. It goes about killings, torture, mistreating and,

15   especially for Mr. Landzo, only violence against people in the detention centre under

16   horrible conditions. Now we hear that he is absolutely a need for him to hear what

17   somebody says about the historical, military background, a thing we, from the side of the

18   Prosecution, would like to support the Court with, to stress, not as an expert witness, not

19   as a witness to any of the counts in the indictment. To just tell the Court, this is the

20   context in which the awful things took place.

21   So, we have supported the Defence lawyers with a list of issues that our expert

22   witnesses, which are experts in the field (and renowned experts in the field) of the

23   questions we are going to ask them. We are just going to ask them things, objective things,

24   what happened, due to academic studies to objective facts that you can rely upon etc., etc.

25   Statements have not been taken from them. They will be examined by us in the

26   courtroom. They will be cross-examined, of course, by the Defence lawyers. We will

27   support any attempt from the Defence lawyers to bring their own expert witnesses. I do

28   not think we should make this concept of expert witness a big deal. I do not think we

29   should at all make it a reason for postponement of an indictment. Anything that on the

30   factual background, what really happened in this awful conflict, would be put into this trial

Page 15

1   when needed. As I say, if there is a need for expert witnesses from the sides of the

2   Defence, we will support such a thing.

3   I cannot help adding that I find it utterly inappropriate and utterly unacceptable

4   to hear the Defence lawyer in this Court disqualifying a person by her name without

5   knowing at all what this name stands for, without knowing at all where this person comes

6   from, without knowing at all what is the speciality of this person, and then hearing the

7   Defence lawyer discard or make away with all Dutch expertise, because what happened in

8   Srebrenica, I happen to know what happened in Srebrenica, and we have had expert

9   witnesses from Holland in another case on the Srebrenica case, and I think it is utterly

10   inappropriate to suggest that Dutch expertise could not be used because of the unfortunate

11   destiny of the Dutch Battalion in Srebrenica.

12   Having said this, I go on to say that the documents of the Helsinki Watch, which

13   are not so many, are now under translation and will be turned over. They are not an

14   amount of documents. They can easily be read. As to the question of an English

15   translation from an Arabic language, I state again that that was turned over on 8th January,

16   not a huge amount of material, it can easily be read.

17   The determination of the health of Esad Landzo, most certainly it meant a lot of

18   work for Mr. Brackovic and made him appear before this Court and made him take part in

19   preparations, but it is, indeed, a matter for medical specialists and that has been properly

20   attended to. In the view of the Prosecution, not even that can be used as an argument for

21   an adjournment for four months.

22   I cannot help pointing out that Mr. Brackovic spoke about the weather for some

23   minutes. I will not do that. I come from a country where 20 degrees Celsius below zero

24   is not a rare thing, and never have I heard any submission to any Court that to postpone an

25   adjournment because of that kind of weather, only under the circumstances that some of

26   the parties could not appear because of snow fall or something like that, but to use the

27   weather under a couple of weeks in a part of Europe or in all Europe as an argument for a

28   four-month adjournment of a trial cannot possibly be taken to serious deliberations.

29   There are other things, I think many things like the unspecified wish to travel to

30   Serbia and to interview witnesses possibly for Landzo etc., even that can take place after

31   the trial has started. Any change in the international relations between countries could

Page 16

1   come up at any time, before, after and during a trial, and these relations cannot even, in the

2   submission of the Prosecution, be used as arguments for a very long postponement of a

3   trial. They can order any time again. So, I do not think we can use that as an argument for

4   this postponement.

5   Article 21 of the Statute which our President asked Ms. McMurrey to read out,

6   in my opinion, is misunderstood by the Defence lawyers. It is taken out of the European

7   Convention on Human Rights verbatim really. It means that the accused has the right to

8   examine and have examined the witnesses against him at trial. The question that also Ms.

9   McMurrey pointed out of the Defence possibility or will to take contact with the

10   Prosecution witnesses, it is all up to them to say "yes" or "no" to that. It is nothing the

11   Prosecution has to do with. If they can, fine, if they cannot, it is nothing we have to take

12   care of.

13   As I said, different parts of these arguments will be taken care of by my co-trial

14   attorneys. I will end my arguments by saying that we, as we have said in our responses to

15   these motions which all carry the sentence, the motion should be denied. We cannot see

16   that these motions in any way bring this trial closer to us in the calendar. Our conclusion

17   is that we do not oppose a shorter adjournment to accommodate the Defence lawyers or

18   the Defence, and we can accept an adjournment until 18th February 1997 at the latest.

19   Thank you, your Honours.

20   THE PRESIDING JUDGE: Let us hear Mr. Turone. You are the next one for the Prosecution.

21   MR. TURONE: Thank you, your Honour. I am going to discuss the motion on exculpatory

22   evidence filed by the Defence of Mr. Landzo. The Defence assumes in this motion that

23   ----

24   THE PRESIDING JUDGE: Pardon me to interrupt here, I think we are not dealing with the

25   motion now. We are dealing with the general subject matter of adjournment. When he

26   comes to argue the question ----

27   MR. TURONE: About the adjournment?


29   MR. TURONE: I think, your Honour, about the adjournment, all what the Prosecution had to

30   say has been said by Mr. Eric Ostberg.

31   THE PRESIDING JUDGE: Thank you very much.

Page 17

1   MS. McMURREY: Your Honour, excuse me, may the Defence respond to Mr. Ostberg's

2   argument?

3   THE PRESIDING JUDGE: There is another application for adjournment.

4   MS. McMURREY: Excuse me.

5   THE PRESIDING JUDGE: There is another application by Mr. Karabdic, is it, on behalf of

6   Delic for an adjournment to April 28th, am I right?

7   MR. KARABDIC: Yes.

8   THE PRESIDING JUDGE: If it is, let us hear you also because we will take all of them

9   together.

10   MR. KARABDIC: Your Honours ----

11   THE INTERPRETER: Microphone, please.

12   MR. KARABDIC: --- my client has been in jail for a very long time now, over a month and a

13   half, in Bosnia and Herzegovina and now here. So that is eight and a half months of

14   detention for Mr. Delic. He would like the trial to start as soon as possible and so would

15   It was very hard for me to realise that I have to file a motion for the adjournment of trial

16   and it was very hard for me to convince Mr. Delic to accept this fact. He showed

17   understanding for this and he fully accepts this decision to do so.

18   I will not repeat the reasons and proposals put forth by Mr. Brackovic and Ms.

19   Cynthia McMurrey. I fully accept these and support them. But let me just briefly go

20   back to what the Prosecution has stated in responding to their proposals. The Prosecutor

21   mentioned weather conditions in Sweden. Sweden was not in a state of war for over 400

22   years and the war in Bosnia ended yesterday, and every 20 or 30 years in its past it had a

23   war. The circumstances there are not such that you can travel in conditions of 20 degrees

24   below zero as you can in Sweden.

25   Let me just give you the example of India when the temperature drops to zero

26   degrees Centigrade, there are hundreds and hundreds of dead people; whereas minus 20

27   does not mean anything in Sweden. So this is just to show you that it is not very nice, not

28   very good, to give examples from other countries and apply this to Bosnia.

29   There is no road infrastructure in Bosnia and what little roads there are have

30   been destroyed during the war. The maintenance of roads is not adequate. There are some

31   attempts but, of course, there is a huge mountain between Sarajevo and Konjic and this

Page 18

1   entire area is very mountainous and the witnesses are not even in Sarajevo or in Konjic.

2   Movement or travel there is impossible as soon as there is some snow. The temperatures

3   are very low, roads are very steep. Then in conditions where you have ice on the roads,

4   you have also to take into account the vehicles that we use are not in a good condition and

5   we cannot really handle these conditions. So I think that this response of the Prosecutor

6   was not really appropriate.

7   I will now go back to the position of the Prosecutor. Throughout this period

8   while my client has been here, myself and the other Defence counsel have filed several

9   motions to the Trial Chamber, because we all realised that the indictment was not regular.

10   It was not drafted in an appropriate way. It was not in accordance with the Rules of how

11   an indictment should look, both in our criminal justice system and in the common law

12   system.

13   We have tried to remedy that. We filed motions in order to improve this

14   situation, to facilitate the trial and to have the trial end as soon as possible, but nothing has

15   been granted to us. When we challenged the facts in the indictment, we received the

16   response that in the pretrial proceedings we do not have the right to challenge facts. In my

17   opinion, it is not so. An indictment issued by a public prosecutor is in contravention of

18   the facts which are well established of the Security Council resolutions and other

19   documents.

20   THE PRESIDING JUDGE: Mr. Karabdic, can I hear you on the adjournments?

21   MR. KARABDIC: I have to say this.

22   THE PRESIDING JUDGE: I just want to hear you on the issue of your application for an

23   adjournment.

24   MR. KARABDIC: This is, in fact, related to this issue. We have not been able to correct the

25   facts in the pretrial proceedings, and now we face the task of correcting it in the regular

26   proceedings and it takes a lot of time to prepare this. When we filed our motions as

27   regards legal issues, we received the response that the legal issues would be resolved at the

28   time of the verdict. But this has also brought us into a situation in which we do not know

29   what kind of responsibility our clients face. We are in a situation where we have to study

30   and try to find out what the Rules and what the regulations and the legislation is pursuant

Page 19

1   to which our clients will be held responsible, and to prepare our defence accordingly. It

2   takes a lot of time.

3   I would just like to point out that we have emphasised this in our motions to the

4   Trial Chamber, and the Trial Chamber has stated that these irregularities exist but they are

5   not of a nature that would be serious enough to cause the indictment to be withdrawn. But

6   these mistakes, these defects, exist and we have to prepare our defence according to

7   defective indictment, and it takes a lot of time. There are factual and legal issues and

8   problems.

9   I will not reiterate what I have already stated in my motion. There are double

10   charges. There are alternative charges that contradict each other. There are charges in

11   which the legal basis for responsibility of my client have not been stated, and it is very

12   difficult for us to face trial with such defects. It will take us much more time and effort to

13   prepare. We have too little time until the beginning of the trial. The Trial Chamber has,

14   after all, admitted that these defects exist, and it has taken us a lot of time to file all those

15   motions.

16   Instead of repeating things, I would like to add that the conduct of the

17   Prosecutor has caused the delay. They have failed to hand over statements of the

18   witnesses and the materials on which they found their charges. Mr. Brackovic and his

19   co-counsel have spoken about this. I accept this, but I would like to stress this issue of

20   expert witnesses. The Prosecutor submitted to us yesterday his notice of what the expert

21   witnesses would talk about. This is not something that he is obliged to submit. He is

22   obliged to submit witness statements to us under his disclosure obligation. I cannot accept

23   the statement of Mr. Ostberg that they do not possess those statements; then what was

24   the basis on which they drafted this notice, indicating to us what the witnesses would talk

25   about? How can they know that if they have not contacted those witnesses and asked

26   them what they would be talking about? This is the material that we need. They had to

27   draft this on the basis of something, and only then can we prepare for the defence when we

28   have this material in its entirety, when we have it in our hands.

29   We only received this yesterday. We will, of course, study this and be able then

30   to present fuller arguments, but I think this action of the Prosecutor was not regular and

Page 20

1   that he had to submit to us the statements of the expert witnesses because he has to have

2   them.

3   Secondly, as regards the conduct of the investigation, I would like to stress that

4   we want to examine witnesses, both the Prosecution witnesses which we have had the

5   opportunity to do only of late, the witnesses that live in the territory of Yugoslavia, and

6   the witnesses in the territory of the Republika Srpska.

7   It is our right arising from the statutes that we have the right to contact the

8   witnesses, and to obtain information from these witnesses in the same conditions as the

9   Prosecution has contacted our witnesses and taken statements from them. I think that this

10   will take a long time, because the Prosecutor has tried right from the start to make it hard

11   for us to exercise our right. In the statements that we received, he did not include

12   addresses and it will then take us a long time to locate the witnesses. For each of the

13   witness statements that we gave to him, we included the addresses and the Prosecutor was

14   able to locate the witnesses very fast.

15   Furthermore, in the conditions which have improved in the way that they have,

16   we would like to expand our investigation and to question as witnesses, as Defence

17   witnesses, many persons who are currently located in Yugoslavia or in the territory of the

18   Republika Srpska. We need time for that. The date that I stated in my motion, I think it is

19   the least that can be given to us.

20   I would further like to state that one of the reasons for the adjournment of the

21   trial would be also the health of Mr. Delic, as stated in our motion. He was wounded in

22   the right leg at the beginning of the war and he still has pain because of that. During the

23   war when he was in prison, he suffered from discus hernia and it causes unsufferable pain

24   in the leg. For that reason, his ability to follow the trial proceedings is limited. This

25   illness has been diagnosed here in The Hague by medical experts, in the Detention Unit by

26   the prison doctors. There are documents about this.

27   He undergoes therapy which will last for a few months. After the end of the

28   therapy, we will know whether he has to undergo surgery. What it is is that the gristle in

29   the backbone, there is an impacted nerve there, and this is a condition that requires

30   treatment and therapy. If this does not work, then surgery is indicated.

Page 21

1   After the therapy and after the surgery, Mr. Delic will be fully able to stand trial

2   and to follow the proceedings in an appropriate manner. As it is now, he is unable because

3   of the pains to do so. He cannot concentrate. He has to take medication. He cannot be in

4   one position for a long time, so that his ability to sit down for a long time during the trial is

5   severely limited.

6   I will not repeat the other proposals which I have, other reasons, I mean. I

7   mentioned them in my motion, so I will not repeat them here. If the Trial Chamber or the

8   Prosecution wishes me to do so, I will do it.

9   MR. TAPUSKOVIC: Your Honour, the accused Mucic would like a short recess.

10   THE PRESIDING JUDGE: Thank you very much. The Trial Chamber will rise for 35

11   minutes. We will be back at 12.30.

12   (11.55 a.m.)

13   (The hearing adjourned for a short time)

14   (12.30 p.m.)

15   THE PRESIDING JUDGE: Good afternoon, gentlemen. We will now continue with the

16   comments, if any, by counsel for both Delic and Mucic on the question of the

17   adjournment, if you have any comments?

18   MS RESIDOVIC: Thank you, your Honour. We have received the notice from the Tribunal to

19   give our positions on this issue today. Before I give some arguments reflecting our views,

20   the views of the Delalic defence, I would like to say that I find it unacceptable that the

21   Delalic defence has not until 12.30 yesterday received the motions of other attorneys that

22   were to have been discussed in today's session.

23   From the Prosecution's response which we received yesterday at 5 p.m., it is

24   clear that the Prosecution had received all Defence motions and had some time to prepare

25   their responses to them. This does not reflect the equal position of the Defence and the

26   Prosecution before this Trial Chamber and I would like the Trial Chamber to correct it.

27   Concerning the issues that have been raised about the adjournment of the trial,

28   from the date of when it was originally set, January 28th, I have to say that the Delalic

29   defence has until now proceeded in such a way as to shorten this period of preparation and

30   to bring this trial to the point where it would last a short time. We have said that we are

31   prepared, we are ready to proceed to trial which would be based on the documents and

Page 22

1   with conviction that the Prosecution had handed us over all evidence, that they have

2   disclosed everything that needs to be disclosed pursuant to Rules 66 and 67, that is, to

3   make available all documents that we requested pursuant to Article 66(B) of the Rules of

4   Procedure and Evidence.

5   Unfortunately, in the last status conference, not having the specific arguments, I

6   submitted that the Prosecution had indeed given me all the evidence that they had to

7   pursuant to these Rules, but again, and based on the order of November 1st, I have

8   received all this in English.

9   But I will point one fact because I think that the Trial Chamber can base its

10   decisions based on the arguments that we put forward during the status conference. I will

11   repeat what I have said the last time. On May 29th, we asked for the reciprocal

12   disclosure. The Defence had at that time made available to the Prosecution all the

13   evidence, all the witness statements, that it had in its possession at the time. Pursuant to

14   Rules 66(A) and 67, the Prosecution also had an obligation to disclose their evidence.

15   I have found out that at the date when I had turned over all our documents, the

16   Prosecution had given us 22 documents which it had filed as evidence supporting the

17   indictment. According to the dates when these witness statements were taken, we found

18   out that out of 67 statements that we received at the end of November, that is, early

19   December, in English, only

22   had been taken after the deadline of May 29th, and some of

20   those were the statements by witnesses who had already been interviewed beforehand.

21   Rule 66(B) obligated the Prosecution to turn this over to us so that we could

22   prepare our own defence. I was a bit surprised by this, which I found a very good attitude

23   of the Prosecution, but the arguments that Mr. Brackovic and other colleagues have laid

24   out, even we who have received the most of the evidence have not received in a manner

25   that would best prepare us for the defence at the time of the trial.

26   On 6th December, I requested that the Prosecution state whether they were in

27   possession of any other evidence, and that is part of the investigation that I had conducted

28   at the time, that has not been disclosed by December 6th. At that status conference, the

29   Prosecutor added that they had additional statements by other witnesses, but they did not

30   intend to use it.

Page 23

1   In another communication later on, I received two more statements, but the list

2   that has been provided to us on 17th December, those two statements were listed. So I

3   have to say that the list that had been given to us earlier was not correct, what we had six

4   months before. So I have to say that they had not given the full disclosure in the period of

5   time that they were required to.

6   The second issue is the issue of translations. I think that this Trial Chamber

7   cannot accept the arguments by Mr. Ostberg during the last status conference that the

8   problems are really of a technical kind. Those are very serious legal issues from the point

9   of view of the witness who is forced to give a statement in a language which is not their

10   own and sign it, and they also impede the work of the Defence to prepare their interviews

11   with these witnesses.

12   Also, the arguments that my colleagues have already laid out (and which I

13   support) is the question of our obtaining all evidence in the language of the accused. As

14   you were able to see, there was a very substantial effort to have 550 pages translated by

15   the Defence during a period of time which is a holiday season. Here I have also to

16   comment on the weather conditions in the region where we live with all the destruction

17   that went on. So we were not able to prepare the best defence.

18   Our colleague, Ms. McMurrey, has raised an issue which has not been raised

19   before and that was our right, pursuant to Rule 21 of the Statute, to examine the

20   Prosecution witnesses. Our colleague, Mr. Ostberg, has pointed out, he has referred to, I

21   think he meant Article 6 of the European Convention of Political Rights, but I think that

22   what our colleague on the Defence pointed out, when we look at the Statute of the

23   Tribunal, Article 21, which follows immediately the procedural issues, that locates this

24   Article so that the rights of the accused would be the highest.

25   This is something that during the pretrial we need to be able to examine all the

26   witnesses and we need to be able to locate them. When the Delalic defence tried to locate

27   these witnesses -- the Delalic defence also thought that there was some exculpatory

28   information in the statements of its own witnesses and provided the Prosecution with their

29   addresses. The Prosecution has, indeed, interviewed some of those witnesses and included

30   some on their own list.

Page 24

1   We are not now in a position to be able to know not even in which country the

2   witnesses are in order to be able to examine them. I think it is important that you order the

3   Prosecutor to give us the addresses, if not of the witnesses themselves, then of the

4   organisations that are in contact with those witnesses so that we are able to get in touch

5   with them ourselves.

6   The next issue in the arguments presented by my colleagues is the availability of

7   the other evidentiary material. The Delalic defence insisted that all the evidence obtained

8   or found in his possession be submitted to them. The Prosecution has had in its

9   possession over 90 video tapes for over two months, including also, and here are also

10   pages of various notes, writings and records. When the Trial Chamber ordered that

11   the material that will not be used in the trial be returned to us, the Prosecution returned 25

12   tapes to us. In its list it included

12   tapes, and the remaining tapes they did not return

13   which means that these tapes are of interest to the Prosecutor. If they are of interest to

14   the Prosecutor, maybe then for cross-examination or some other reasons during the trial,

15   then these tapes are also interesting for the Defence, because for the Defence to be able to

16   prepare, the Defence has to have those tapes.

17   I am not here to represent the other accused and I am not here to represent my

18   colleagues, but since I was in a position to obtain those 90 tapes, I know that these tapes

19   cannot be viewed in the same way in which you see a movie at the cinema. It has to be

20   seen in the context of any possible use of that tape in the proceedings. It must be seen in

21   the context of our preparation for the defence, so that we are able to parry the Prosecution

22   with our counter arguments in the case of any of the evidence.

23   I think that we can accept the remaining arguments that my colleagues spoke of

24   earlier. Let me just say a few words regarding the expert witnesses. My colleagues have

25   already stated that yesterday at 12.30 we received an overview, an outline, of what the

26   expert witnesses will discuss. With full respect for the Prosecution, which may have more

27   knowledge of the military, historical and other sciences, I have to say that we, in the

28   Defence, are probably not ready to cross-examine these witnesses without preparation.

29   The way in which we have been presented with this outline, again I go back to the issue of

30   language and that is English, two of the four counsel here speak the other working language

31   of the Tribunal and that is French. This was presented in such a way that these questions

Page 25

1   can be asked about any country in the world. We are talking about the overall

2   geographical, political and other issues. These do not contain anything that the experts

3   would be talking about such as, for instance, what Dr. Gow spoke about during the Tadic

4   trial. There were no references to the documents that the experts witnesses will use.

5   So that we are in a situation in which we are people who are very much removed

6   from the material that the expert witnesses will be talking about, and we are in a position

7   that we will have to cross-examine these witnesses at trial.

8   I would not raise the issue of political or any other status of the witnesses called

9   by the Prosecution, but I would like to ask you to take one thing into consideration. This

10   Tribunal was established maybe for the purpose that tomorrow to prevent further crimes

11   if a conflict arises in some other country. But I think that the response to a witness in our

12   country who may be completely qualified to present the facts in an area for which he is an

13   expert, so in our case if a witness appears from a country where something happened

14   which should not have happened -- I am talking about the UN forces in the Srebrenica area

15   -- this could cause serious political and other reactions aimed at the Tribunal. Again, I

16   repeat, I do not want to say anything bad about the person who has been proposed, but

17   the public reaction to such a witness could be counterproductive to this Tribunal.

18   For these reasons, your Honours, I think that my colleagues who have

19   submitted written motions for an adjournment of the trial have presented valuable and

20   valid arguments. As for the position of the Prosecution that the trial should begin earlier

21   because some people from the Prosecution team could leave their positions in June, I think

22   it is invalid. The Prosecution here at the Tribunal and everywhere else, it is an institution.

23   I fully respect the individuals who are part of the institution, but this institution cannot

24   use individuals as an argument for or against a fair trial of the accused.

25   THE PRESIDING JUDGE: Thank you very much, Ms Residovic. It does not appear you

26   have any date in mind because you have supported their own arguments -- you have put

27   forward your own arguments why the trial should be adjourned, but you have no date in

28   mind. We have had two dates, 28th April and 20th May suggested by both Landzo's

29   counsel and Delic's counsel. But you have not given any dates, although you support the

30   argument.

Page 26

1   MS RESIDOVIC: Your Honour, my client has been in detention for 10 months. I know that it

2   is impossible for any of us to prepare for the trial in the time proposed by the

3   Prosecution, but I am sure that having listened to our arguments you will schedule the trial

4   for a fair date which would enable the Defence to prepare itself for the defence properly

5   and that they are able in the interests of their clients to attend and fully participate in the

6   trial.

7   THE PRESIDING JUDGE: Thank you very much. May we hear Mr. Tapuskovic on his

8   client's behalf?

9   MR. TAPUSKOVIC: Thank you, your Honour. I am the only Defence counsel who has not

10   filed any additional motions before this status conference, neither have I requested

11   anything. Before saying anything more, I have to remind you that, as regards the beginning

12   of the trial, Mr. Zdravko Mucic has all the time been protesting. Thanks to Mr. Marro

13   and his numerous discussions with Mr. Mucic, Mr. Mucic has stopped his protest. He

14   has written a letter to this Trial Chamber and expressed his views as regards his hope that

15   the trial will start on 28th. So Mr. Mucic and myself, we thank Mr. Marro for his effort

16   to convince him that his move was counterproductive for him.

17   However, I cannot change anything in my general view as regards the beginning

18   of the trial. Mr. Mucic's view, since March when he was arrested in Austria, he has been

19   hoping that the trial which should solve the issue of his criminal responsibility, whether he

20   is or is not responsible, should be expeditious and fair.

21   Article 20 of the Statute, of which he was aware at the time, supported his hope

22   and the Austrian authorities also advised him that the trial in The Hague would start quite

23   soon. The view of Mr. Mucic and of my defence which I undertook in May, sometime in

24   May, since 1st August, the first status conference, our view has been unchanged. From

25   that time on, we have always asked for a speedy and fair trial. This is the least that he

26   could ask or expect, respecting the principles of the Statute. This is our view today.

27   With the evidence submitted to us by the Prosecution a couple of days ago, we

28   could have had the trial in March and we did not have even 20 days to prepare for the trial.

29   Probably for tactical reasons the Prosecution did not insist on the trial because the other

30   accused only came to the Tribunal a couple of months later. So it was obvious that his

31   hopes that this trial would be speedy and fair were in vain. Having seen the evidence, I can

Page 27

1   now say that I could have handled this evidence had I been his Defence counsel at that

2   time, even in April last year.

3   Please let me draw your attention to several things. In a large number of

4   countries there are certain time limits for the proceedings, for the investigation, the

5   obligation to start the trial, especially when the accused is in detention and the Statute

6   itself, bearing in mind these principles which have been accepted by virtue of every

7   country in the world, also incorporated the principle that the trial should be expeditious

8   without giving specific time limits.

9   So this expeditious trial is left for the Trial Chamber to interpret, but they have

10   to bear in mind the principles valid in the international law, or in the countries, most of the

11   countries in the world. It is obvious that the expeditiousness of the trial in Zdravko

12   Mucic's case, we cannot talk about it because it is almost one year now that he has been in

13   detention.

14   If Zdravko Mucic were at liberty and able to take care of his children, then I

15   would maybe ask for one year, two years or seven years to prepare for the trial. As the

16   example quoted by the Prosecution, there was a case in which the preparation for trial

17   lasted for seven years. If he was at liberty, then I would ask for adjournment after

18   adjournment. I know that he has problems, that there are legal issues and it makes it

19   difficult, our job difficult for all of us. But, as a lawyer, I understood some things 20 years

20   ago and I have to abide by those principles in every case that I handle, including this one.

21   The most difficult kind of detention is the pretrial detention. I know that you

22   handle such cases in your experience and you know what one day of detention means. The

23   guilt has not been established yet. I do not have to explain this to you. This is well

24   established fact. Pretrial detention is the most severe kind of punishment. In these cases,

25   the Defence counsel has to do everything in his power and ability to prepare as soon as

26   possible, even if it takes special efforts, to finish his job as conscientiously as possible.

27   In the seven months I have been involved with this case, I think that I am

28   sufficiently prepared, and in some aspects we have to prepare for some things as we go

29   along and things will crop up. If we were now to prepare ourselves for the defence in such

30   a way that there is no surprise at all, this is something we cannot expect, this will not

31   happen.

Page 28

1   As far as I am concerned, this trial can start not on 28th but tomorrow. I have

2   my co-counsel now and it will be much easier for me, attorney Mira Tapuskovic speaks

3   English, and for a month now it has been much easier for me. Now if I were to ask for an

4   adjournment so that Mira Tapuskovic can prepare for the trial, it will take an additional

5   month.

6   As far as I am concern the trial can start tomorrow. I am prepared. Of course,

7   your Honours, I will not enter into the concept of the other Defence counsel. I have to

8   respect that. I leave it to you to assess how well-founded their requests are, but my

9   attitude and the attitude of Mr. Mucic is that the trial should start immediately.

10   At this point, because this has to do with the trial date, I have to point to some

11   of the facts that have to do with the indictment, not the facts themselves. The trial has

12   been postponed because the Prosecution was not ready. It was postponed several times

13   for three or four months. Now they present the same evidence, not more nor less, that

14   they had when the indictment was issued. It was reviewed, this indictment, and there were

15   grounds for a prima facie case. If the Prosecution wanted to respect Article 20 of the

16   Statute, they could have done so. There is not anything new here. OK, there are six

17   witnesses listed here at the beginning of the list. This is new. I can now understand the

18   defence of the other accused to whom this relates.

19   But, let me conclude, had the Prosecution wanted the trial to begin on 28th, they

20   would not have included in the list such witnesses. They could have left it for the

21   witnesses who may have been called, because what we discussed here was the fact that all

22   the people who were detained in the Celebici camp were protected under the Geneva

23   Conventions. We did not have to determine whether there was criminal responsibility.

24   Then, of course, it is very important to determine what happened in general in the area too

25   in order to be able to establish the motives of the people in this area.

26   In this respect, the Defence of the other accused is right. In that case it would

27   have been important, all those other things, but the Prosecution has caused this confusion

28   because they did not put first things first. The things that should have been at the end,

29   they put them first. This is something that has nothing to do with incrimination, the

30   allegations against the accused.

Page 29

1   So, let me conclude, I and the accused Mucic are in favour of the trial date of

2   28th. It turned out that the inclusion of such witnesses on the witness list is maybe also

3   the tactical reason of the Prosecution so that the trial can start on 18th. So I am only

4   person here who is in favour of the trial on the 28th. May I sit?

5   THE PRESIDING JUDGE: Thank you very much. You have no problems! May I hear you,

6   Mr. Ostberg, your final statement on the issue?

7   MR. OSTBERG: Just a few comments. Most of that, what I said in answer to Mr. Landzo's

8   defence, goes for the other ones also. I will centre on Mr. Tapuskovic now. You are not

9   the only person in this room who is prepared to go to trial on 28th January; so is the

10   Prosecution.

11   The statement of the Prosecution is that we will meet the requirements of some

12   of your colleagues for a short period, four weeks, to accommodate the wishes they have,

13   but our position is that 28th January, as we said before, is the date that we are prepared to

14   go to trial.

15   Before the recess, Mr. Karabdic had a word and what he said was also many of

16   the things that I already have responded to. I want to say something, however. The first

17   appearance of Mr. Delic was on 18th June 1996. Since that day, Mr. Karabdic has had

18   knowledge of the indictment, its form, the way of charging, etc. He has tried to rebut it

19   and filed motions. He has tried to appeal against the decisions of the Trial Chamber, but

20   this indictment stands the way it looked for him when he looked upon it on 18th June

21   Today in the Court he says: "I need a lot of time to prepare to defend my client

22   against these allegations put forward in this indictment". This is the very same indictment

23   that he saw the first time. Therefore, I cannot understand his way of using the indictment,

24   the form of the indictment, the unwillingness of this Tribunal to order the Prosecutor to

25   amend it as an argument for a postponement. These were general comments to what Mr.

26   Karabdic had to say.

27   Then the question of what have we disclosed, in what way have we disclosed,

28   what about the exculpatory evidence we have in our hands, what have we done with this?

29   I will ask my colleagues, Ms. McHenry and Mr. Turone, to address these two things.

30   Finally, I want to say to Mr. Karabdic or to the Court, I find it unfair to put

31   forward to this trial that the Prosecution has put obstacles in the way of the possibility for

Page 30

1   the Defence to prepare for their defence. That is definitely not true. We have done more

2   than required in the Statute and in the Rules to accommodate the Defence lawyers. We

3   have always tried, when they have asked for something, to help them in the way we could.

4   So I cannot let this statement of us being hostile to the Defence's possibilities to work

5   stand uncommented. Thank you, your Honour.

6   THE PRESIDING JUDGE: Actually, the issue of exculpatory evidence is the subject matter

7   of another motion ----

8   MR. OSTBERG: Yes.

9   THE PRESIDING JUDGE: --- which is quite different. It was merely referred to within the

10   contexts.

11   MR. OSTBERG: Yes. When your Honour comes to the other motions, we will take care of

12   them in the way you wish to have them discussed.

13   THE PRESIDING JUDGE: Mr. Brackovic, can we hear your final submission?

14   MR. BRACKOVIC: I did want to respond to Mr. Ostberg for his comments and also to

15   comment on what my colleagues have said. I would like to remind the Trial Chamber once

16   again that the motion for adjournment of the trial, different arguments have been put

17   forward. Some of them have affected the Defence's ability to prepare for trial in a lesser

18   and some in greater degree.

19   I would like to point out that the comment regarding the weather conditions

20   which the Defence raised as one of the reasons that impeded it in conducting its

21   investigation is misplaced. In the last some 20 days, the conditions that have been

22   prevailing are not leading the Defence to ask for the postponement of trial. It is just the

23   conditions that prevailed at the time.

24   Also, the intention of the Defence was not to discredit the findings and opinions

25   of the expert witnesses. The Defence only voiced its fear taking into the account the

26   significance of these testimonies, the issues that the expert witnesses will address. They

27   are of such a nature that for the Defence it would be very dangerous if it faced them only at

28   the time of the trial.

29   In connection with this, there is also an ongoing fear, apprehension, that these

30   expert witnesses may be biased in a certain way regarding the events in Bosnia and

31   Herzegovina. I believe that my colleague, Ms. Residovic, put it very well as regards the

Page 31

1   Dutch General and what echoes his statement may have in the public over there, especially

2   if the Defence had not been prepared for it in a timely fashion.

3   I would like to put forward as an argument for the Defence's motion the

4   untimely way in which the Prosecution has been disclosing its evidence. My colleague,

5   Ms. Residovic, pointed it out specifically, citing the specific number of statements. So

6   that the Defence has been brought into a very awkward position so that it cannot conduct

7   its investigations in a timely way and possibly find counter evidence.

8   The Prosecution was not able to counter the argument today that the number of

9   statements were given to me as counsel for Esad Landzo. There are 43 of them. They

10   were given to me only very late. A number of these statements were taken by

11   investigators in the period before the first appearance of the accused before this Trial

12   Chamber. Those were the statements that were taken in March and April 1996. It is

13   perfectly clear at this stage that the Prosecution had been able and in a position to submit

14   these statements to the Defence much earlier.

15   We cannot see why these statements could not have been given to us, the ones

16   that regard my client.

17   THE PRESIDING JUDGE: Will you excuse me? I thought you were summing up whatever

18   arguments you put forward. I think that is a second argument of what you have said

19   before. If you are summing up, let us hear your summing up of the whole argument.

20   MR. BRACKOVIC: These are not new arguments, your Honour. I have addressed these

21   issues before. I am just trying to emphasise the main reason for the Defence's motion for

22   an adjournment of the trial, which is lack of disclosure of evidence in a timely fashion,

23   because the Defence has also cited weather conditions which the Prosecution found

24   inappropriate for a four-month extension. I only wanted to explain to this Trial Chamber

25   that the weather conditions were not the main reasons why we asked for the adjournment

26   of four months. So the main reason is the late disclosure of evidence.

27   The Defence has been facing now for over a month and a half a number of

28   statements of the Prosecution that are new and that is on the eve of the trial. I think that

29   this is not the spirit of a just trial, that the Defence should be forced, should review these

30   statements in such a short period of time. That is the reason why I believe that all the

Page 32

1   arguments of the Defence for the adjournment of trial, for the postponement of four

2   months are valid.

3   I do understand the position of the Defence of Zdravko Mucic and the

4   arguments that his counsel has put forward. They come from their needs. My colleague,

5   Mr. Tapuskovic, during all status conferences so far, has very clearly stated that his

6   defence is only interested in one document which is a decree of appointment of Zdravko

7   Mucic for the Commander of the camp. That is the concept of their defence. It is clear

8   that the defence of Zdravko Mucic is prepared and ready to proceed not on January 28th

9   but immediately.

10   However, the needs of my client are very different in comparison to Mr. Mucic.

11   This is the reason why the Defence is asking for an adjournment of four months. I would

12   here like to point out to the Trial Chamber a moral dilemma that I have as Defence counsel.

13   I am simply in conflict with myself regarding the decision of this Trial Chamber as to

14   what my attitude should be, what my position should be, regarding this decision.

15   In order to participate in a trial where my client would be handicapped because

16   of inadequate preparation, I would refuse to be part of that trial because his defence had

17   not been properly prepared. That is why I request that the Chamber take these arguments

18   into account and to accept the motion for adjournment of the trial whereby it would level

19   the field because all motions of the Prosecution have been accepted and the trial had been

20   adjourned. I think that in this case there are no reasons why the Trial Chamber should not

21   accept our arguments and adjourn the trial by four months.

22   THE PRESIDING JUDGE: Thank you very much, Mr. Brackovic. I think we will give our

23   ruling when we come back in the afternoon.

24   MS. McMURREY: Excuse me your Honours, may I briefly have five minutes of summary

25   also in rebuttal to Mr. Ostberg?

26   THE PRESIDING JUDGE: In respect of --- what argument?

27   MS. McMURREY: Of the adjournment.

28   THE PRESIDING JUDGE: Well, you are not the principal speaker for the adjournment are you? Your

29   leading counsel is there and I expected him to rebut whatever has been said against that.

30   We do not have two persons speaking at the same time on the same matter.

31   MS. McMURREY: Thank you.

Page 33

1   THE PRESIDING JUDGE: We have the next ----

2   MR. BRACKOVIC: Excuse me, your Honours. What Ms. Cynthia McMurrey was about to

3   say is not a repetition of what I had argued. We are here, a team of lawyers, and I would

4   like you, request you, to allow her to respond to some of the comments of Mr. Ostberg

5   that I had not commented on, because I had counted on her being able to do so.

6   THE PRESIDING JUDGE: Thank you very much, Mr. Brackovic but I would like you to be

7   in control of your accused's case. If you are the leading counsel and you are in control, I

8   know you are the leading counsel. If you prefer to give up your position to a junior

9   counsel, you had better tell the Trial Chamber that and we will acknowledge that, because at

10   the beginning, I made it very clear that I would not want parallel counsel speaking on the

11   same matter. I made it very clear.

12   If you think you cannot sum up when, in fact, it became necessary for you to

13   do so, you would have asked your co-counsel to do that. In the interest of fairness in this

14   case, perhaps you might not have understood me, I might allow her to make whatever

15   submissions she thinks she would to.

16   MR. BRACKOVIC: I understood you very well, your Honours, and thank you for allowing

17   that, but if the Prosecution had an opportunity to present arguments like Mr. Ostberg did

18   today, I think that the Defence should have the same opportunity. We work as a team.

19   This is why I asked that Ms. McMurrey also address issues that I have not addressed.

20   Thank you.

21   THE PRESIDING JUDGE: Can I hear Ms. McMurrey?

22   MS. McMURREY: I am sorry, your Honour, do I have the right to speak?

23   THE PRESIDING JUDGE: Yes, you can now speak.

24   MS. McMURREY: Briefly, I just wanted to say that also we agree with defendant Mucic's

25   attorney also that Mr. Landzo is not here to waive any right to a speedy trial; that just like

26   they are we want an expeditious and fair trial too, but because of the problems with

27   disclosure with the Prosecution we have to waive our right to an expeditious trial, although

28   not waiving our claim for a speedy trial in the interests of justice, in fairness.

29   Mr. Ostberg is a wonderful advocate and this is an adversarial proceeding. Some

30   of the things he addressed a while ago was of course (1) that the video equipment has been

31   available to the Defence since the summer, but of course the Defence was not aware that

Page 34

1   there were video tapes that were going to be presented into evidence at that time. It was

2   only recently that we were disclosed that nine video tapes will be used as evidence and

3   that there are many other video tapes that should be viewed by the Defence.

4   So it was only recently that we knew we had the need to view the videos,

5   although the equipment may have been available. It is only now that we had the need to

6   view the videos, and it was only this week that the video equipment was made available to

7   Mr. Landzo. It was only this week that the video equipment was made available to the

8   Defence attorneys in the Defence room also.

9   Also Mr. Ostberg stated that possibly the Defence misunderstands the purpose

10   of the experts, that they are there to advance an objective opinion. I suppose that is true,

11   but the truth is in an adversarial proceeding the opinions of the experts are there to advance

12   the theories of each adversary in the proceeding. The opinions of experts vary.

13   Therefore, we were given yesterday at 12.30 a list of experts and what they

14   might say. We have had no opportunity to find our own objective opinions to contradict

15   whatever it might be that the Prosecution may put forward. The Prosecution has nowhere

16   denied that it has untimely provided disclosure of evidence to us at this point.

17   In the sake of brevity and to be expeditious for this Tribunal, I just want to say

18   that, based on all of the written claims that we have in our motion for adjournment and our

19   supplementary motion for adjournment, based upon all the worthy arguments of Madam

20   Residovic and Mr. Karabdic, the attorney for Mr. Delic, we further show that there is no

21   way that in the interests of fairness, as this Tribunal is set up, that we could possibly be

22   prepared for defence of any of the accused before four months. We ask that this case be

23   adjourned and continued until May 20th. Thank you.

24   THE PRESIDING JUDGE: Thank you very much, Ms. McMurrey. I think we will turn to

25   the other motions which were filed ----

26   MR. KARABDIC: Can I respond to Mr. Ostberg, please?

27   THE PRESIDING JUDGE: You can, Mr. Karabdic. Yes, you can respond.

28   MR. KARABDIC: I support fully the arguments of Ms. McMurrey and of Mr. Brackovic. I

29   will not repeat their argument. Allow me just to comment briefly on the statement of the

30   Prosecution. He said that I received the indictment on 18th June or thereabouts, June

31   1996. It is correct that I received the indictment at that time, but I immediately said and

Page 35

1   took appropriate action, I saw that this was an indictment that had been composed in an

2   irregular fashion and I did everything I could to regularise it.

3   I think that the Appeals Chamber, the Bench, the Appeals Bench, actually said

4   that I was right in many aspects, because they stated that all the irregularities or defects in

5   the indictment exist both in the factual and the legal aspects. In the ruling of the Appeals

6   Bench, they stated that the Prosecutor should as soon as possible clarify certain issues and

7   to improve or to solve the contradictory alternatives in the indictment. But this has not

8   been done. When I took all those measures, trying to have this solved, I expected that the

9   indictment would be corrected and that then I would be able to prepare myself for one line

10   of accusations.

11   As it is now, since the indictment has remained in force, I have to prepare my

12   defence for several alternatives which, as the Appeals Bench has stated themselves, are

13   contradictory. It does take a lot of time. I have to determine myself what the provisions

14   are that my client can use in his defence and this takes a lot of time. This is the reason

15   why I have asked for an adjournment.

16   I find myself in a situation in which no Defence counsel has had to find

17   themselves. I do not know what are the provisions according to which my client has been

18   charged and what the provisions are according to which he can offer his defence. I did not

19   say that the attitude of the Prosecution was hostile. I can state that I have co-operated

20   very well with the Prosecution.

21   The fact is that we did not get the addresses of the witnesses with the

22   statements that we have received. We do not know where to locate the witnesses. In this

23   way the Prosecution has made it impossible for us to do it. In order to be able to find out

24   their addresses and in order to be able to exercise our right to examine the witnesses, we

25   need so much time for that. This is the reason for the adjournment.

26   I still am of the opinion that what the Prosecution has disclosed to us, this

27   notice of expert witnesses, does not fulfil their obligation, according to the Statute, to

28   disclose the evidence and to provide us with the statement of the expert witnesses. This is

29   indefinite, unclear, so that it is of no use to us. This is my impression after the brief time

30   that I had to study it from yesterday until today.

Page 36

1   The Prosecutor has to have some other material on the basis of which he knows

2   that these expert witnesses could testify. I want to see that. Please, show it to us. This is

3   not satisfactory, that we are given such indefinite and unclear information. This cannot be

4   a basis for the defence, because it does not contain any specific, detailed circumstances or

5   information about what the witnesses would talk about, except for the general view of the

6   Prosecution that they will talk about the general conditions, general circumstances. This is

7   not something that we can accept.

8   The things that happened in Bosnia and the fact that a state was established in

9   conditions such as those and that the state came under attack and that it defended itself,

10   not only was the state attacked but the people themselves. This is something you have to

11   bear in mind. This has to be the general assumption behind this whole case. We were all

12   sentenced to death, to extinction. We were assaulted by the fourth strongest force in

13   Europe.

14   THE PRESIDING JUDGE: That has nothing to do with the adjournment. It has nothing to do

15   with it.

16   MR. KARABDIC: Excuse me, I apologise, your Honour, this is just something, I say that this

17   issue cannot be avoided in the expert witnesses' testimony. The Prosecution imposes this

18   in the notice. This is not something that you can avoid. You cannot say that this

19   happened in an abstract country regardless of the concrete circumstances. The state was

20   established. It came under attack. You all know what happened. This is the context in

21   which this has to be considered. You cannot just view this one separate case and treat it

22   separate from the general context. I apologise. I would like to conclude. I still am of the

23   view that the trial should be adjourned for four months, as I said earlier.

24   THE PRESIDING JUDGE: Thank you very much. We have some other motions standing in

25   the name of Landzo. Can we here your comments on that?

26   MS. McMURREY: Your Honour, if I may address the Court?

27   THE PRESIDING JUDGE: Let us see how you get into it at all, because it stands by your

28   first application under Rule 73.

29   MS. McMURREY: I was going to suggest that maybe we take the motion for enlargement of

30   time to file additional motions first, because that might be the most expeditious way to

31   move along. We are asking for leave of the Court to file additional motions. I believe there

Page 37

1   was a 60-day time period that passed. The reason that we need additional time to file

2   additional pretrial motions now is that, based on the disclosure of the Prosecution which

3   has only recently occurred, it is only then after reviewing the evidence against us that we

4   can maybe formulate what pretrial motions need to be filed in response to the evidence

5   that has been given to us.

6   So it is only now at the time that we are still continuing to get disclosure of

7   evidence that we may have an opportunity to come up with new issues that are arising as

8   the evidence is disclosed.

9   THE PRESIDING JUDGE: We are prepared to enlarge the time for you.

10   MS. McMURREY: Thank you.

11   THE PRESIDING JUDGE: We are prepared to enlarge the time for you.

12   MS. McMURREY: Thank you very much. Then should I go to the -- should I choose the

13   order, your Honours, or should you?

14   THE PRESIDING JUDGE: Well, I suppose you can, but my fear is whether you could not look

15   at Rule 73 itself and see how you come in, and see whether all the motions which you have

16   intended to move here come within the provisions of Rule 73.

17   MS. McMURREY: I was asking for a waiver, I suppose, under Rule 73 to continue to file

18   pretrial motions as they become necessary, because I believe that Rule 73 must have

19   assumed that within a short period of time after indictment disclosure would have been

20   provided to the Defence, but because disclosure is now nine, 10 months later ----

21   THE PRESIDING JUDGE: This is disclosure within Rule 73.

22   MS. McMURREY: No, your Honour, disclosure is not within Rule 73, but as far as

23   applications for the exclusion of evidence, we cannot make that determination on whether

24   evidence should be excluded until we receive it.


26   MS. McMURREY: Application for severance.

27   THE PRESIDING JUDGE: So it is premature at this stage?

28   MS. McMURREY: It is premature?

29   THE PRESIDING JUDGE: Yes, at this stage.

30   MS. McMURREY: It is premature until we receive the evidence, yes.

31   THE PRESIDING JUDGE: You could not move it. So which is the other one.

Page 38

1   MS. McMURREY: So the application for the separate trial I believe that ----

2   THE PRESIDING JUDGE: That has already been decided upon.

3   MS. McMURREY: Yes, it was decided and it was filed timely, earlier. It was filed within the

4   Statute.

5   THE PRESIDING JUDGE: This is not an Appeals Tribunal.

6   MS. McMURREY: No. We are asking for reconsideration of that issue at this point.

7   THE PRESIDING JUDGE: Under which of the Rules?

8   MS. McMURREY: Under the request for enlargement of time to ----

9   THE PRESIDING JUDGE: No, it does not enable you to do that.

10   MS. McMURREY: OK. I think since we are also unclear, I am unclear, I am asking the Court

11   for clarification.

12   THE PRESIDING JUDGE: Yes, uou are not quite familiar with what has happened before now or

13   you were not quite familiar with the scope of Rule 73 at the time you drew up your

14   motions. This was your problem.

15   MS. McMURREY: I am asking the Court to ----

16   THE PRESIDING JUDGE: The waiver is the waiver of your delay. It is not the waiver of

17   other subject matter which comes within Rule 73.

18   MS. McMURREY: OK.

19   THE PRESIDING JUDGE: It is not a waiver. It does not waive subject matters because they

20   are specific and prescribed, the matters which come under Rule 73.

21   MS. McMURREY: I am asking you, as the Court just stated that the exclusion of evidence

22   cannot be filed within 60 days of the first appearance of the accused if the Prosecution has

23   not disclosed evidence, so there would have to be a waiver under that one particular issue,

24   would there not?

25   THE PRESIDING JUDGE: Yes, that can.

26   MS. McMURREY: OK. The application for separate trials or severance of crimes joined or

27   for separate trials, that says that it had to be filed within 60 days.

28   THE PRESIDING JUDGE: No, that has been decided. There is a decision of the Trial

29   Chamber on that issue.

30   MS. McMURREY: So if there is additional argument on that area and the defendant is asking

31   for reconsideration based on additional argument ----

Page 39

1   THE PRESIDING JUDGE: That is why I asked you for the Rule enabling you to do that.

2   Then you read that Rule and tell me the circumstances under which you can do that.

3   MS. McMURREY: I am relying on Rule 73(C) which says that upon a showing of good cause

4   the Trial Chamber may grant relief.

5   THE PRESIDING JUDGE: In respect of waiver. Have you not read it carefully? Read it

6   carefully, showing good cause in respect of waiver that you have not waived.

7   MS. McMURREY: Right. The waiver is that if we did not file the motion within 60 days

8   then we would have waived all right to bring forth that issue to the Tribunal.

9   THE PRESIDING JUDGE: Yes. Then upon showing good cause we grant the relief in respect

10   of waiver.

11   MS. McMURREY: Yes. So you are asking us to show good cause at this moment?

12   THE PRESIDING JUDGE: In respect of which of the subject matters coming within one,

13   two, three, four, five of 73(A)?

14   MS. McMURREY: The only one we have filed that I believe may have been waived, the

15   argument, would be the argument for separate trial. Everything else I believe has not been

16   waived.

17   THE PRESIDING JUDGE: But you cannot even raise argument of separate trials which have

18   been decided by the Trial Chamber here, except you are now appealing on that. In fact, you

19   did not appeal on that.

20   MS. McMURREY: It was an improper vehicle to ask for reconsideration and further

21   argument, is that what the Tribunal is saying?

22   THE PRESIDING JUDGE: You should understand what errors you have committed.

23   MS. McMURREY: OK. Then we will try to skip the separate trial issue. I believe all the

24   other motions have not been waived.

25   THE PRESIDING JUDGE: They do not come within Rule 73. This is what I am telling you.

26   They are not covered by Rule 73. So you come under the wrong Rules.

27   MS. McMURREY: I will ask the Court, based on the disclosure of evidence and as the pretrial

28   motions, I am going to title all pretrial motions "pretrial motions", that these would be

29   evidentiary motions to ask for clarification of the Court that really do not fall under 73 at

30   all.

31   THE PRESIDING JUDGE: They do not.

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1   MS. McMURREY: No, they do not. So we can proceed without any fear of waiver.

2   THE PRESIDING JUDGE: Why?You mean you could proceed without following or observing any Rules?

3   MS. McMURREY: No, your Honour. What is my understanding is that the specific issues

4   listed in Rule 73, if they were not raised or they have already been taken care of, that is

5   fine, but the issues, motion for equal access to witnesses, the motion for disclosure of

6   exculpatory evidence and the motion for designation of witnesses and evidence to be used,

7   if those do not fall under 73 and therefore they have never been waived, they are a different

8   breed of pretrial motion that have to be address as they arise prior to the trial of case.

9   THE PRESIDING JUDGE: Some of them need no motions at all.

10   MS. McMURREY: OK.

11   THE PRESIDING JUDGE: If you read Rule 66, Rule 67 you will find your rights there.

12   They give you a sufficient showing of what you do.

13   MS. McMURREY: Maybe since they do not need to be titled "pretrial motions" they should

14   just be addressed at the status conference under Rule 5 which would mean non-compliance with

15   the Rules as ordered earlier.

16   THE PRESIDING JUDGE: Actually I am only explaining to you that you have come under the wrong

17   Rule and we cannot entertain your applications, full stop.

18   MS. McMURREY: OK.

19   THE PRESIDING JUDGE: That is all it means.

20   MS. McMURREY: So they are issues that will be brought up informally, not in the form of a

21   motion but can be determined at the status conference?


23   MS. McMURREY: OK, thank you.

24   THE PRESIDING JUDGE: I did not think it was necessary to call on the Prosecution to make

25   any comments because there is nothing new before the Tribunal properly for me to allow

26   you to say anything. Have you anything to say, Ms. McHenry?

27   MS. McHENRY: Your Honour, with your indulgence I would like to say one thing while this

28   is still a public session. I understand we are going to discuss many specific issues later on

29   in the status hearing, but while this is a public session I want to make sure that the

30   Prosecution on behalf of all trial counsel do officially deny that we have given untimely

31   disclosure. There had been a statement that somehow we were conceding that and I want

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1   to make it clear during the open session that we are not conceding that. We can discuss the

2   details later. Thank you.

3   THE PRESIDING JUDGE: Thank you very much, Ms. McHenry. I think we will have to

4   adjourn at this stage and come back at 3.30 for the status conference. Then we will be able

5   to give our rulings on the question of an adjournment.

6   1.50 p.m.

align7   (Luncheon Adjournment)