Tribunal Criminal Tribunal for the Former Yugoslavia

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1 Wednesday, 27 March 2002

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.03 a.m.

5 JUDGE LIU: Call the case, please, Madam Registrar.

6 THE REGISTRAR: Good morning, Your Honours. This is case number

7 IT-98-34-T, the Prosecutor versus Naletilic and Martinovic.

8 JUDGE LIU: Thank you.

9 Before we continue with the first Defence witness, the Trial

10 Chamber wishes to inform the parties about two decisions. Yesterday,

11 after the opening statement of the Defence, two procedural issues were

12 raised by the Prosecution: First, the question of the alibi by Defence;

13 second, the question whether the second Defence witness, Witness M, is a

14 trial witness or an expert witness.

15 With regard to these issues, the Trial Chamber rules as follows:

16 First, after having heard the argument of the parties and after

17 further consultations, the Chamber is of the opinion that the Defence

18 argument that Mr. Naletilic was in a house together with some children at

19 the time ^ outside the salvic -- sounds like in question does constitute

20 an alibi defence. Pursuant to Rule 67(A)(ii)(a), the Defence should have

21 notified the Prosecutor of their intent to offer this Defence of alibi

22 prior to the commencement of the trial. However, Article 67(b) clearly

23 states that failure of the Defence to provide notice under this Rule shall

24 not limit the right of the accused to testify on alibi defence. The Trial

25 Chamber therefore orders the Defence to provide specific information to

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1 the Prosecution pursuant to Rule 67(A)(ii)(a) at this stage of the

2 proceedings about the place and the accused -- about the place the accused

3 claimed to have been present at the time of the alleged crime, the names

4 and addresses of the witnesses, and any other evidence upon which the

5 accused intends to rely to establish the alibi.

6 Secondly, regarding the witness status of Defence Witness M, the

7 Trial Chamber yesterday heard arguments of the parties. The Defence

8 argued that the witness will testify about his personal experience and not

9 appear as a general expert. The Chamber is of the view that this argument

10 is supported by the witness summaries provided by Defence in all

11 pre-Defence filings. The Chamber therefore shared the opinion of the

12 Defence that Witness M will testify as a trial witness.

13 With regard to the Prosecution's application to receive a

14 statement of the witness from other proceedings, the Chamber would like to

15 ask the Defence to indicate whether it's possible to rearrange Witness M

16 to testify at a later stage, maybe as the third or fourth witness of the

17 Defence. This rearrangement would give some time to wait for the decision

18 on the variance of the confidentiality of the statement, which would be

19 fair to the Prosecution. Yesterday, the Chamber had the impression the

20 Defence is generally not opposed to such a solution.

21 Yes, Mr. Krsnik.

22 MR. KRSNIK: [Interpretation] Your Honour, as far as Witness M is

23 concerned, in any event, we wanted to suggest to Your Honours -- because

24 this is something I mentioned yesterday, that the Defence had

25 understanding for this, because when it was preparing its

Page 8993

1 cross-examinations, it had to go through this too. However, Your Honour,

2 the Prosecution is a single organisation, it has unified services, and

3 having obtained the names from the Defence in time, given that Witness M

4 was an expert, they could have obtained an expertise, an expert report

5 from their service. But the Defence is afraid that we won't even have

6 time to start with the witness this week, or that if we do start with this

7 witness, we won't have the time for cross-examination.

8 So we were going to suggest -- I had the intention of speaking to

9 my learned colleagues today about this and to suggest to them that if we

10 started with this, we should finish the examination-in-chief, and then,

11 after the holidays, to have my colleagues conduct the cross-examination.

12 I think that this would be fair. The witness is here. It would be a pity

13 to lose him now. I think the next one is arriving today or tomorrow. If

14 we finish with the first witness, we could start with the second witness,

15 so we could conclude this, because I know that we only have tomorrow left

16 to work.

17 JUDGE LIU: Well, Mr. Krsnik, I appreciate very much your efforts

18 towards this direction, but you have to be realistic. In your summaries,

19 you said that the first witness will take us five hours for you to

20 directly examine him. Yesterday we only spent about one hour, and today

21 is three hours, more or less. And there will be the cross-examination.

22 That will take today and most part of tomorrow. So my suggestion is that

23 for this week we won't hear any more witnesses at all, because we could

24 not afford to have a witness under the oath for a very long weekend spent

25 in Mostar. So we'll start the next -- the second witness next week, and

Page 8994

1 whenever we finish the first witness, we will rise for this week. Is that

2 agreeable?

3 MR. KRSNIK: [Interpretation] Yes, Your Honour. I was afraid of

4 suggesting this, since we're always attempting to do as much work as

5 possible, but I agree with this absolutely and I support your proposal

6 absolutely. If the Tribunal considers that we should postpone this even

7 more, we'll have witnesses for after the holidays, and then Witness 3

8 would become Witness 2. We can do this, too. That's absolutely no

9 problem. It's no problem to make such a change either.

10 JUDGE LIU: Yes, Mr. Stringer.

11 MR. STRINGER: Good morning, Mr. President and Your Honours. I

12 think that what Your Honour has proposed this morning is acceptable. It's

13 fine to the Prosecution side. I think that if Witness 2 begins testifying

14 next week, we will be prepared to proceed with cross-examination of that

15 witness, provided that in the meantime we've been able to get the expert

16 report from the other case unsealed. This is obviously not something that

17 the Defence has a position on or that they can -- I'm not suggesting that

18 the Defence can do anything to speed that process up.

19 We are attempting to do what needs to be done, including filing an

20 amended, if you will, application this morning with that Appeals Chamber

21 to get the matter before the Appeals Chamber. Hopefully, the Defence

22 attorneys in the other case will not object to the unsealing of that

23 report, and if that takes place, then we should be prepared to proceed,

24 again, provided that the testimony is as a precipient witness in that

25 Witness 2 does not end up testifying as an expert. But based on the

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1 assurances given by counsel, we're confident that's not going to happen.

2 JUDGE LIU: Thank you. Should we go to the closed session and

3 call the first witness? Yes, Mr. Krsnik.

4 MR. KRSNIK: [Interpretation] Yes, Your Honour.

5 JUDGE LIU: Thank you. We'll go to the closed session.

6 [Closed session]

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21 --- Whereupon the hearing adjourned

22 at 1.46 p.m., to be reconvened on Thursday,

23 the 28th day of March, 2002, at 9.00 a.m.



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