1 Wednesday, 4 May 2005
2 [Open session]
3 --- Upon commencing at 9.05 a.m.
4 [The accused entered court]
5 JUDGE AGIUS: Yes. Good morning, Madam Registrar, could you call
6 the case, please.
7 THE REGISTRAR: Good morning, Your Honours. This is Case Number
8 IT-03-68-T, the Prosecutor versus Naser Oric.
9 JUDGE AGIUS: Thank you.
10 Mr. Oric, can you follow the proceedings in another -- in a
11 language that you can understand?
12 THE ACCUSED: [Interpretation] Good morning, Your Honours, ladies
13 and gentlemen. Yes, I can follow the proceedings in my native language.
14 JUDGE AGIUS: I thank you. You may sit down.
15 Appearances for the Prosecution.
16 MR. WUBBEN: Good morning, Your Honours. My name is Jan Wubben,
17 lead counsel for the Prosecution. I am here together with co-counsel,
18 Ms. Patricia Sellers, Mr. Gramsci Di Fazio, and our case manager, Ms.
19 Donnica Henry-Frijlink. And also good morning to the Defence.
20 JUDGE AGIUS: I thank you, Mr. Wubben, and good morning to you
21 and your team.
22 Appearances for Naser Oric.
23 MS. VIDOVIC: [Interpretation] Good morning, Your Honours. Good
24 morning to my learned friends and colleagues from the OTP. My name is
25 Vasvija Vidovic. Together with Mr. John Jones, I appear on behalf of Mr.
1 Naser Oric. We have with us today our legal assistant, Ms. Adisa Mehic,
2 as well as our case manager, Mr. Geoff Roberts.
3 JUDGE AGIUS: I thank you and good morning to you and your team.
4 The main purpose of today's sitting, as you know, was to
5 exchange -- hear your views or your submissions on the Rule 98 bis
6 procedure that will follow immediately after the Prosecution rests its
7 case. But of course we are also at your disposal should you have any
8 other preliminary matters that you would like to raise or housekeeping
9 matters that you feel are important and need to be addressed today while
10 we have the opportunity. We are not hearing any evidence, in other
12 So before we come to the Rule 98 bis matter, are there any other
13 issues that you would like to raise from the Prosecution's side, Mr.
15 MR. WUBBEN: Yes, Your Honour. I would like to raise the issue
16 about the scheduling of the witnesses.
17 JUDGE AGIUS: Yes, I would expect so.
18 MR. WUBBEN: And let me refer to the witness list and the numbers
19 involved. We were able to reschedule witness number 45, Your Honour, to
20 be -- to give testimony in court on Friday instead of the Monday. That
21 means that this week this witness will start and the following witness
22 will start, number 46, as that is a fixed date with a view to the agenda
23 of that -- of that witness, on the 11th of May and we project two days
24 for that witness. So instead of the 13th of May, we should be able to
25 finalise we -- I mean the parties by the 12th of May.
1 JUDGE AGIUS: Stop one moment, because I may have -- I want to
2 make sure I have understood -- I have understood you. You plan to have
3 here witness number 45 this Friday?
4 MR. WUBBEN: Yes, Your Honour.
5 JUDGE AGIUS: He will -- you will require him in the witness box
6 until when?
7 MR. WUBBEN: On that day, Your Honour, and finalise on Monday.
8 JUDGE AGIUS: So the original three hours that you had indicated
9 have now become what?
10 MR. WUBBEN: Still three hours, Your Honour.
11 JUDGE AGIUS: How can it be three hours if we are hearing him on
12 Friday? We usually sit for almost four hours, three hours, 45 minutes.
13 MR. WUBBEN: So the other party can start as well.
14 JUDGE AGIUS: I am asking you how much time you require. If you
15 require still three hours then we can plan that he will testify in-chief
16 on Friday and that the Defence will take him on cross on Monday.
17 MR. WUBBEN: That's fine, Your Honour.
18 JUDGE AGIUS: Okay.
19 All right. So is that fine with you?
20 MR. JONES: Yes, Your Honour.
21 JUDGE AGIUS: When I say "fine with you," I mean I need a
22 confirmation that Monday will suffice for the purposes of cross-examining
23 that witness.
24 MR. JONES: Yes, that will be plenty of time.
25 JUDGE AGIUS: All right. Perfect. So this is the first thing
1 that is being decided this morning, Madam Registrar.
2 Mr. -- does he have any protective measures, or not? None that I
4 MR. WUBBEN: Not yet, Your Honour.
5 JUDGE AGIUS: Okay.
6 MR. WUBBEN: That's why I referred to numbers.
7 JUDGE AGIUS: So witness number 45 on the latest confidential
8 amended witness list will testify this Friday, that is the 6th of May,
9 in-chief and on Monday, the 9th of May, on cross. Right.
10 Then I take it - this is why I intervened - that the next witness
11 Mr. -- number 46 will start on Tuesday and not on Wednesday, as
12 previously scheduled.
13 MR. WUBBEN: We tried to do so, Your Honour, but it is scheduled
14 on the 11th and that's a fixed date.
15 JUDGE AGIUS: What do you mean a fixed date?
16 MR. WUBBEN: A fixed date -- it is a date that could not be
17 rescheduled, modified --
18 JUDGE AGIUS: No in other words he cannot --
19 MR. WUBBEN: No.
20 JUDGE AGIUS: What do you mean?
21 MR. WUBBEN: He cannot come earlier.
22 JUDGE AGIUS: When is he coming?
23 MR. WUBBEN: One moment, Your Honour.
24 It's on a Monday, Your Honour.
25 JUDGE AGIUS: Yes. Coming over on Monday. So the -- the problem
1 -- Monday morning? Monday afternoon? Evening? What?
2 MR. WUBBEN: I don't know, Your Honour.
3 [Prosecution counsel confer]
4 MR. WUBBEN: Your Honour, I learned from my co-counsel that he
5 will be flying in Monday evening so he will be proofed on the Tuesday.
6 JUDGE AGIUS: So we can only start on the Wednesday, in other
8 MR. WUBBEN: Yes.
9 JUDGE AGIUS: And Wednesday is the 11th. And do you require how
10 many hours for that witness?
11 MR. WUBBEN: One day, Your Honour, one session.
12 JUDGE AGIUS: And who will be taking that witness?
13 MS. VIDOVIC: [Interpretation] Your Honours, I, too, will be
14 requiring about one day or at the very least two and a half to three
16 JUDGE AGIUS: Right. Okay. So the second decision being taken
17 this morning is as follows. I thank you both first of all for your
18 cooperation and putting the Trial Chamber in a position to determine
19 these matters beforehand so that we can manage the case in the best way
21 So witness number 46 will start his testimony on Wednesday, the
22 11th of May. And then on that day, the Prosecution is expected to
23 terminate his -- to conclude his examination-in-chief. The following
24 day, 12th, will be available for cross-examination, with the
25 understanding that the cross-examination has to be finished, concluded,
1 by that -- by the end of business -- by the end of the sitting on that
2 day. Okay.
3 So then there is no question of restarting on the 17th because
4 the 16th is a public holiday, or a UN holiday. And provided you am -- I
5 take it that you still intend to bring forward witness number 47.
6 MR. WUBBEN: Yes, Your Honour.
7 JUDGE AGIUS: All right. So that should not create any problems
8 for the Defence. What I would like you to do between now and this Friday
9 when we meet again is to make a re-assessment of the would-be testimony
10 of this witness to establish whether you require that person to testify
11 in-chief for five hours. Because if you can finish that testimony -
12 whoever is leading that witness, because I wouldn't know - please make a
13 re-assessment. If you still require five hours, then it will be five
14 hours. If we can bring that down to one day or even to, say, to four
15 hours instead of -- or four hours roughly, then maybe on the basis of how
16 cross-examination has been ongoing, we would require less time for
17 cross-examination and we can finish him earlier than scheduled. Instead
18 of taking five days or four days, we will have him for three days or
19 something like that.
20 MR. WUBBEN: Your Honour, we are already working on that.
21 JUDGE AGIUS: Okay. I thank you. So for the time being I think
22 that matters of the revised witness list as far as the next -- next two
23 weeks are concerned we -- are finally set. We -- yes, do you have any
24 further submissions?
25 MR. WUBBEN: Yes, Your Honour. I have some additional
1 submissions regarding several witnesses on the list to update Your
2 Honours of --
3 JUDGE AGIUS: So --
4 MR. WUBBEN: -- of our plans. As we contacted the Defence
5 regarding the three chain of custody witnesses, may I label them as such,
6 of course meaning numbers 50, 52, and 53. There had been contacts and
7 change of positions and we have now --
8 JUDGE AGIUS: One moment. I'm sorry to interrupt you again, but
9 I want to make sure that in my list at least, chain of custody, I have
10 49, 50, and 51. Those are the numbers that I have.
11 MR. WUBBEN: Yes. I refer to the list, Your Honour, of the 25th
12 of April.
13 JUDGE AGIUS: All right. Okay, okay.
14 MR. WUBBEN: Okay.
15 JUDGE AGIUS: Okay. All right. Okay. I was looking at another
16 list. Okay. So, yes, what's the position about these three witnesses?
17 MR. WUBBEN: About these three witnesses I requested co-counsel,
18 Mr. Gramsci Di Fazio, to address the Court. But first I want to address
19 the Court with a view to number 49. And number 49, that is also a chain
20 of custody witness, but solely in connection to a military log. And we
21 considered our position in that respect, as this is a witness allowed by
22 the Court especially with a view to the fact that this witness already
23 testified and now it comes to the final position of the Prosecution in so
24 far that with a view to expedite the testimonies and thus the trial, we
25 considered to -- to propose, to request, to the Court. And it is a
1 matter of consideration and planning to put instead of this witness our
2 investigator, who is able to confirm via an affidavit or in person. We
3 will request that and specify that to the Court, the fact that this
4 military log has been handed over to him and this can be tendered as
5 such. This military log is then -- and the handing over by that witness
6 is the only aspect in addition to what he testified in early statement.
7 The witness also made reference to a videotape that couldn't find
8 it, so that's -- military log will be the nucleus of tendering into
9 evidence. When it comes to the credibility of the witness in -- it is
10 already sufficiently challenged by the Defence on cross-examination, and
11 then I mean the witness number 49, and should the Defence seek to call
12 this witness or have any concerns about it on matters regarding his
13 credibility, then it should be something that they would -- must raise
14 under additional new evidence to submit to the court. And of course this
15 new information must be relevant and probative.
16 JUDGE AGIUS: Prosecution -- Defence has no burden of proving
17 anything in the context of what you've been saying, Mr. Wubben.
18 MR. WUBBEN: This means, Your Honour, that --
19 JUDGE AGIUS: You have the burden of proving that the testimony
20 of this witness is a credible one; it's not the other way around.
21 MR. WUBBEN: Yes, Your Honour. I anticipate that there are -- in
22 the meanwhile this morning I received a letter, letter dated the 2nd of
23 May, that addressed that issue. And I already initiate to --
24 JUDGE AGIUS: A letter from who?
25 MR. WUBBEN: A letter from the Defence.
1 JUDGE AGIUS: Okay.
2 MR. WUBBEN: That's why I anticipate in that respect.
3 JUDGE AGIUS: All right.
4 MR. WUBBEN: Anyhow, we could not have a final position today,
5 Your Honour, because the investigator concerned is, due to family
6 circumstances, a death in the family, has left for abroad and he will
7 return at the coming weekend. So after the coming weekend, we are able
8 to submit a request in that respect, and I will get back to the Court and
9 update the court for --
10 JUDGE AGIUS: Yes.
11 Madam Vidovic or Mr. Jones, would you like to address the Trial
12 Chamber on this last item that has been brought up or raised by Mr.
14 MR. JONES: Yes. Thank you, Your Honour. I think for the most
15 part we'll wait for the request by the Prosecution and respond to it.
16 What Mr. Wubben has alluded to is that with the fact of the witness that
17 is projected we had credibility issues which arose from discovery of
18 additional evidence which we wish to put to him. So we -- all I can say
19 now is we would be concerned if that challenge would be circumvented if
20 that investigator would be allowed to give evidence on behalf of that
21 witness. But as I say, until we receive the request, it's difficult to
22 say precisely what our response would be, but I anticipate we would
23 object to that response, meaning that the credibility issues we would
24 wish to raise would not be open to us anymore.
25 JUDGE AGIUS: Please, Registrar and parties and my legal
1 officer/s [sic], I have an impression - I may be completely wrong, but I
2 do have an impression that while that witness was giving evidence here
3 months ago and he was being asked about the original or the copy that he
4 had, and it was given to understand that he will be making it available
5 and that we did make some kind of reservation, particularly for the
6 Defence, to put questions on the -- on that document and on how --
7 anyway, on that document when he would be called back to round up his
8 testimony. It's an impression that I have that we kept a window open for
9 further questions once he had brought the original forward or made it
10 available so that we could confront it with the copy that we had, but I
11 may be wrong. Please do check. We will be checking, too, but I have
12 that impression that we left that window open; in which case, in which
13 case, the situation will change a little bit and it will change obviously
14 in the direction of the Defence.
15 The other thing I want to mention, and I want to make ourselves
16 clear on this, is that as I said the burden of proving that a witness is
17 a credible one and that the substance of his testimony is one which is
18 trustworthy and can be relied upon and has probative value, in other
19 words, rests with the Prosecution and not with you because we're talking
20 of a Prosecution witness. Obviously, we do appreciate, for sure, that
21 you may have questions that you would like to ask the witness which are
22 -- which will address the question of credibility.
23 Now, if this is as a -- if this is -- if this was sort of
24 something that was reserved for already, that's one thing; if it's just
25 an afterthought and now you want to -- you prefer to put these questions
1 to a witness that the Prosecution for a short period of time showed
2 interest in bringing again, I don't think we are in a position to tell or
3 to impose on the Prosecution to bring that witness forward again. I
4 mean, the Prosecution can always decide to drop -- to renounce having
5 that witness come forward and testify viva voce at firsthand testimony on
6 the military log and we certainly cannot stop the Prosecutor there. And
7 we certainly cannot stop the Prosecutor in trying to get an investigator
8 instead; it's their business, not ours. We will certainly not involve
9 ourselves in that.
10 Yes, Mr. Jones.
11 MR. JONES: Yes, just in outline it's essentially similar, if not
12 identical, situation to the one which we had before with Mr. Slavisa Eric
13 which after the testimony testified we received material, video material
14 which we say reflects -- will reflect on the truthfulness of the
15 witness's answers when he testified here. And so to that extent it's not
16 an afterthought, it's something which if we had had the material at the
17 time we would have confronted the witness with it. So it may be that --
18 of course it is up to the Prosecution whom they call, but if they don't
19 call that witness, we would be put in the situation that we had with the
20 other witness, Mr. Eric, that we would apply for him to be recalled. So
21 in terms of whether this is going to be a more expedient approach, it may
22 not be if in the end we end up having to apply to have the witness
23 brought here in any event.
24 JUDGE AGIUS: On that, if you decide to follow that direction,
25 that procedure, you would have to apply with -- for an ad hoc motion for
1 permission to do that.
2 MR. JONES: Yes, so we reserve the possibility that we might now
3 have to do that.
4 JUDGE AGIUS: Yes.
5 So I think that now clears this matter, but please do check
6 because I do have this recollection - I may be wrong - but I do have this
7 recollection that since we had agreed that witness will return here with
8 the military log and be -- plus the video that he had seen and which he
9 had given information about, I think we had left a window open for
10 further questions from both parties.
11 [Trial Chamber and legal officer confer]
12 JUDGE AGIUS: We'll check anyway. This is being checked by us as
13 well, so we will re-assess the situation and we will talk about this
14 again. Once you have made up your mind whether you will be resorting
15 only to the evidence of the investigator or whether you would rely on
16 bringing forward the witness himself, having heard now from Mr. Jones
17 that they have fresh material that they have dug up, on the basis of
18 which they would ask for that witness to be recalled in any case. So I
19 am sure that you are both experienced and mature enough to deal with this
20 situation as it arises in the -- in your best interests, obviously,
21 because that is -- goes without saying, I think, but also in the most
22 practical manner possible. All right.
23 Yes, so that deals with that particular witness.
24 MR. WUBBEN: Yeah, meaning that the other three left, and I will
25 give the floor to --
1 JUDGE AGIUS: Yes, Mr. Di Fazio.
2 MR. DI FAZIO: Thank you. If Your Honours please, the
3 Prosecution recently applied to you to add a certain number of witnesses,
4 included witness number 53. And you recently granted our motion
5 permitting him to be added to our witness list. So what I'm about to say
6 -- I should extend some apologies to the Trial Chamber because we are
7 going to announce that we don't intend to call him in the interests of
8 economy, but we did of course recently ask you to consider adding him.
9 The reason for that is that we are interested of course in judicial
10 economy, in trying to cut the list down as much as we can. Furthermore,
11 the investigator who took the statement from those three chain of custody
12 witnesses has been unavailable for the past two weeks, being on leave in
13 another county, and he only returned yesterday. I had a chance to speak
14 to him yesterday. I spoke to him extensively about the witness and we
15 have been thereby placed in a better position to make a more accurate
16 assessment of our needs and what we intend to do. So we considered the
17 matter and we decided that we do not wish to call that particular
18 witness. So he will be removed from the witness list; the Prosecution
19 won't produce him. That's witness number 53. That then leaves number 52
20 and number 50.
21 I understand that - just for your information - they are military
22 intelligence people.
23 JUDGE AGIUS: Yeah, yeah, yeah, no, I just wanted to make sure.
24 MR. DI FAZIO: So I understand also that there have been
25 discussions in the Chamber regarding the use of the Rules to shorten
1 their testimony. The Prosecution does not wish to adopt the provisions
2 of Rule 92 bis in respect of either of those witnesses. It's simply too
3 complicated to adopt all those procedures. That leaves Rule 98 (F).
4 However, having spoken to the investigator yesterday, it's clear to me
5 that these witnesses may produce more upon proofing and the Prosecution
6 wouldn't want to tie its hands by simply producing their written
7 statements, as you would expect under Rule 98 (F). The evidence has got
8 to come in some way, that's either oral or in written form. That leaves
9 us with the current statements as they stand. We don't want to tie our
11 JUDGE AGIUS: Let me interrupt for a moment. I mean, dependently
12 of Rule 92 bis. If you opt for the Rule 89 (F) procedure, they would
13 still be required to come here to confirm the statement or not in any
15 MR. DI FAZIO: Exactly, exactly.
16 JUDGE AGIUS: So it's not your wish to resort to either of the
17 two procedures, either under 92 or under 89. Obviously we will -- we can
18 impose, to be honest with you, following some of the decisions taken by
19 the Appeals Chamber, we can actually impose it but we will not. I mean,
20 it's -- especially since you're dropping one.
21 MR. DI FAZIO: There's good reason for calling them and we -- I
22 know you're anxious about the matter.
23 JUDGE AGIUS: At this stage of the proceedings, we will not
25 MR. DI FAZIO: Furthermore, the Prosecution would be happy, if
1 Defence agree, to try and adopt a combination of written and oral
2 evidence which may --
3 JUDGE AGIUS: That's up to you --
4 MR. DI FAZIO: -- shave a few hours of the testimony. We can
5 confer with the Defence beforehand if you wish, and see if we can mold an
6 examination-in-chief that consists of both written and oral evidence.
7 There's nothing in the Rules that stops that.
8 JUDGE AGIUS: There's nothing in the Rules that stops that, but
9 we would not intervene in imposing either of these two procedures unless
10 we have of course an indication that you are willing -- both willing to
11 accept, not at this stage of the proceedings. We would have provided for
12 that at the early stages and even at pre-trial -- during the pre-trial
13 proceedings, but not at this stage. So if there is no agreement, they
14 will come forward and testify viva voce here.
15 What we are interested in establishing in the shortest time
16 possible, is the following: that you had indicated a three-hour time
17 frame for each of these original three witnesses, which to we always
18 seemed to be far in excess of what you would really have needed to prove
19 or deal with the matter of chain of custody.
20 MR. DI FAZIO: I think we can cut that down.
21 JUDGE AGIUS: This is what I'm asking you to do, to do the same
22 exercise I have asked Mr. Wubben to do with regard to witness number 47
23 and see how much time we can cut down. I -- honestly we -- I discussed
24 that with my legal secretary already, and of course it's something that
25 we need to discuss amongst ourselves. But if -- we have arrived now at a
1 stage now where we need to plan in a little bit more detail than we
2 usually do. So in other words, if we can again save another day there,
3 we will try to do it.
4 MR. DI FAZIO: Yes.
5 JUDGE AGIUS: But I do appreciate that you have already renounced
6 once of the witnesses.
7 MR. DI FAZIO: I think if we -- I've read the statements and
8 they're pretty ponderous sort of statements, and if we cut to the chase,
9 as they say, we can really probably slash 40 to 50 per cent of the time.
10 JUDGE AGIUS: I don't know, I haven't read the statements.
11 MR. DI FAZIO: I think it's possible from the Prosecution's point
12 of view in any event, we would finish their testimony in half a session.
13 JUDGE AGIUS: All right.
14 MR. DI FAZIO: And then finish the cross-examination.
15 JUDGE AGIUS: In the meantime, we will of course reserve our
16 position on this until later. But if in the meantime there is a chance
17 of having the -- again, the Prosecution and the Defence sit around the
18 table and come to an agreement on what procedure to follow with regard to
19 these remaining two witnesses, then of course we will accommodate you
21 Defence need not say anything for the time being. We'll play it
22 by the ear. You do your homework to see how much you can cut down
23 timewise. If you plan or you think you can cut down the testimony --
24 viva voce testimony in-chief to a couple of hours, both of them included,
25 then it might not even -- might not be worth pursuing the other course of
1 saying let's have it part in writing let's have it --
2 MR. DI FAZIO: That's what I meant. It's an economy --
3 JUDGE AGIUS: But sit down together and come back to us on this.
4 MR. DI FAZIO: I understand what Your Honour means and we'll make
5 sure that that happens.
6 JUDGE AGIUS: And the understanding is if you come to an
7 agreement to adopt the Rule 89, please do remember that their presence
8 will still be required here.
9 MR. DI FAZIO: Of course.
10 JUDGE AGIUS: And if -- not only -- not just for purposes of
11 cross-examination, I mean also for the purpose of confirming. If you
12 adopt the Rule 92 bis procedure, then the whole procedure has to be
13 adhered to.
14 MR. DI FAZIO: Yes.
15 JUDGE AGIUS: So in other words I don't want that to have any
16 shortcuts or informal 92. It has to be a formal 92 --
17 MR. DI FAZIO: That's what troubles me about that Rule.
18 JUDGE AGIUS: But it's up to you. That might be the agreement
19 that, for example, the Defence would be interested in adhering to. So
20 leave options open and then come back to us with whatever you agree upon.
21 If you don't agree on that, you would be expected to summon these two
22 witnesses, make them available here, to testify viva voce, and it would
23 be appreciated if you could cut down on the six hours that you are
24 scheduling for both witnesses for in-chief.
25 MR. DI FAZIO: Yes, Your Honour.
1 MR. JONES: Your Honours, just for clarification because we were
2 also working for the old list that I understood the Prosecution to be
3 dropping witness --
4 JUDGE AGIUS: Sakota.
5 MR. JONES: Not witness 52 on the old list?
6 JUDGE AGIUS: No, no, no, Witness Sakota.
7 MR. JONES: So, in other words, the military officer witness
9 JUDGE AGIUS: I haven't heard anything to the contrary.
10 MR. JONES: And two chain of custody witnesses which were 49 and
11 50 on the old list. Thank you.
12 JUDGE AGIUS: Did I mention the right name?
13 MR. DI FAZIO: Yes.
14 JUDGE AGIUS: All right. Thanks. So that deals with -- have we
15 concluded the entire now submissions -- or the submissions on the
16 confidential amended list?
17 [Trial Chamber and legal officer confer]
18 JUDGE AGIUS: So anything else before we embark on your journey
19 to the Rule 98 bis?
20 MR. WUBBEN: No, Your Honour.
21 JUDGE AGIUS: Right.
22 Let me make sure that I have not forgotten anything myself. Let
23 me go through -- no, I think we can move now to the Rule 98 bis matter.
24 Let me introduce the subject. But before I do so, let me on
25 behalf of the Trial Chamber thank both parties for asking for an open
1 debate on this matter in time, before we come to the Rule 98 bis stage,
2 in time to give an opportunity to everyone to air their views, and also
3 to ensure that neither of the parties particularly are taken -- was taken
4 by surprise. I believe wholeheartedly that no Trial Chamber should ever
5 surprise the party with anything that hasn't -- they have not -- the
6 parties with anything that they have not been given the opportunity to
7 make submissions upon. So I thank you for allowing the Trial Chamber to
8 discuss in an open manner, fashion, with you this problem or this issue.
9 And I appreciate also the fact that I'm sure you've come here
10 well-prepared to contribute in a constructive manner, thus helping the
11 Trial Chamber come to the right decisions.
12 You recall that Rule 98 bis was amended as a result of a decision
13 taken by plenary. It was amended on the 8th of November. And the reason
14 for the amendment I think emerges from the amendment itself. Reason was
15 that our predecessors in introducing the Rule 98 bis procedure had meant
16 to introduce a procedure within the trial that would make it possible for
17 the trial to finish earlier if the right circumstances are obtained; but
18 also because there was, and there still is, a very important principle
19 pertaining to the right of the accused to remain silent involved.
20 Basically, the whole idea behind -- the ratio behind the creation or the
21 insertion of our rules of Rule 98 bis in its original form was the
22 following: that the accused has a right to remain silent, and if the
23 Prosecution has in regards -- relation to any particular count not
24 brought forward evidence which is sufficient to sustain a conviction
25 later on, then the accused should not be put in a position wherein he has
1 to defend himself in any way.
2 Unfortunately, and I say this with all responsibility, as the
3 work of this Tribunal gathered momentum and as more cases were put on
4 trial or came to trial, it was realised that Rule 98, instead of serving
5 the purpose for which it was intended in the first place, was serving
6 very little in regards of the substance of the indictment itself. Much
7 time and much efforts were being lost in not only elaborating voluminous,
8 lengthy motions, lengthy responses, and lengthy decisions, but also much
9 time was being lost - I'm not saying wasted, please understand me or
10 don't misunderstand me - in studying and evaluating single incidents and
11 particular events on which various witnesses would have given testimony,
12 evidence, mistaking what the substance of a Rule 98 bis motion really
13 should be.
14 The result was that from the moment the Prosecution rested its
15 case to the time when the Trial Chamber would come to its decision, most
16 of the time we would have a lapse of time of something like three months,
17 most of the time even more than that, to be followed by the following
18 consideration: that as we went along we realised that perhaps it would
19 be much more practical to first hand down an oral decision disposing of
20 the Rule 98 bis motion, to be followed then by a written decision
21 elaborating the reasoning behind the oral decision.
22 That is the practice, for example, that my Trial Chamber in the
23 Brdjanin case adopted, that is the practice that few other Trial Chambers
24 adopted in other cases, too. Had we not adopted that procedure, in a
25 complicated case like the Brdjanin case, for example, waiting for the
1 written Rule 98 bis decision would have entailed the Trial Chamber
2 waiting for another three weeks, maybe, or four weeks.
3 The Judges of this Tribunal are fully aware of the time that was
4 being dedicated to the resolution of Rule 98 bis issues, the resources of
5 this Tribunal, which as we go along become less and not more. The fact
6 that the longer it takes to bring a case to an end, the longer someone
7 else will be waiting for his trial to come up, in the meantime, most of
8 the time in a state of detention. And last but not least, the fact that
9 we had already committed ourselves to an exit -- completion strategy made
10 us think twice about the following: whether to retain Rule 98 bis, as it
11 was, until the 8th of December; whether to abolish it outright; and
12 lastly, whether to amend it with a view to on one hand respect and secure
13 the due-process rights of the accused, which -- to which I referred to
14 earlier, namely right to remain silent -- right to remain silent,
15 vis-a-vis put in juxtaposition to what the Prosecution would have been
16 able to bring by way of evidence. So that's on the one side. On the
17 other side, the interests and the responsibility of this Tribunal to
18 ensure that this legal instrument of procedure that we had created way
19 back in the late 1990s no longer served to length -- to prolong the
20 duration of the case, but if anything served to -- its practical purpose
21 for which it was meant and created in the first place.
22 So we opted for this last -- third alternative. And as you
23 noticed, there are some differences between the previous Rule 98 bis and
24 the current Rule 98 bis provision. For the benefit of anyone who is
25 following these proceedings and is not familiar with the legal and
1 technical problems involved, I will very briefly say the following. I
2 will read first and foremost what Rule 98 bis provided before it was
3 amended in December. In its paragraph A, that Rule provided that:
4 "An accused may file a motion for the entry of judgement of
5 acquittal on one or more offences charged in the indictment within seven
6 days after the close of the Prosecution's case and in any event prior to
7 the presentation of evidence by the Defence pursuant to Rule 85(A)(ii)."
8 You will immediately notice, having heard me read out this first
9 paragraph from the previous Rule 98 bis -- now, this was essentially
10 party-driven. The whole process of the Rule 98 bis procedure was part --
11 triggered by the party. It would be the accused who had the right to ask
12 the Trial Chamber to consider a motion for acquittal.
13 You will also agree with me, for sure, that this seven-day time
14 limit was many a time extended not to another seven days but sometimes to
15 weeks, months. I recall instances where it was extended to even a month
16 and a half, almost two months. And in some complicated cases, given what
17 -- what it entailed, particularly the fact that it had to be a written
18 one, I am not -- I am not that much surprised.
19 The second paragraph of the previous Rule 98 bis provided that:
20 "The Trial Chamber shall order the entry of judgement of acquittal on
21 motion of an accused or proprio motu if it finds that the evidence is
22 insufficient to sustain a conviction on that or those charges."
23 So from the party-driven stage, we now move to the discretion or
24 the -- the role of the Trial Chamber to dispose of the matter. And you
25 will notice also that already there was the possibility -- the window
1 open for the Trial Chamber to dispose of questions of acquittal after the
2 end of the Prosecution case also proprio motu, in other words short of an
3 ad hoc motion by the Defence there was still the right - I'm not saying
4 that there was the responsibility. Please do not read me out -- in that
5 direction - there may have been, but there was the possibility for the
6 Trial Chamber to decide that there was -- I will use a phrase that I use
7 in my own county, no case to answer in relation to one or more counts.
8 If that was the case, it would have entailed giving the opportunity to
9 the parties to be heard on that, obviously, because as I said in the
10 earlier on -- Trial Chamber would never have thought of giving a surprise
11 to the Prosecution in any case. So that would have been open for debate
12 and the Prosecution would have consulted. But the -- in other words, if
13 in the case the Defence had opted not to trigger the Rule 98 bis motion,
14 there was always the right of the Trial Chamber to dispose of same issues
15 proprio motu.
16 Problems, as you are well aware, arose as to what was the
17 standard to be used when the Trial Chamber came to its decision, either
18 on a motion of acquittal or on -- or on proprio motu initiative.
19 Undoubtedly there have been some different opinions expressed in
20 decisions forthcoming from different Chambers, especially in the early
21 parts when this -- earlier stages when this -- the then-existing Rule 98
22 bis was being applied. I will not dwell on the reasons for that. The
23 position seems to me to have been resolved by the Appeals Chamber,
24 particularly in the Blaskic case - but not only in the Blaskic case,
25 there were several other decisions that followed suit - that spelled out
1 in no unclear terms the standard that ought to be adopted in the Rule 98
2 bis exercise, and it is the standard that is adopted in all the
3 common-law systems, jurisdictions that I am -- I am familiar with. And
4 this, again, I don't think we need to go into. The standard has been set
5 and it is not going to change. And I will be explaining to you that the
6 change in the wording in the new Rule 98 bis does not mean that the
7 standard has been changed; it only means that the road which should be
8 taken should involve the parties and the Trial Chamber in much less work
9 than it used to into December. And I will explain to this later on.
10 The Rule was changed, as you know, in December, and both existing
11 -- it was a new rule that has come into place. And basically what it
12 says now in its first paragraph is that the close -- "at the close" -- in
13 its paragraph, "At the close of the Prosecutor's case, the Trial Chamber
14 shall by oral decision and after hearing the oral submissions of the
15 parties enter a judgement of acquittal on any count if there is no
16 evidence capable of supporting a conviction."
17 You will notice that the whole procedure is no longer really
18 party-driven. And you will also notice that the new Rule 98 bis motion
19 does not say that at the close of the Prosecutor's case the Trial Chamber
20 "may," but it says "shall." So the first message, or the first
21 conclusion to be drawn on the face of it from this new Rule 98 bis --
22 Rule 98 bis is that it has become mandatory now for the Trial Chamber to
23 embark on this Rule 98 bis acquittal exercise at the end of the
24 Prosecutor's case and need not wait for the Defence to file or to make
25 any application for the acquittal of the client. So that is point number
1 one, and I would like you to understand it from the very beginning.
2 Next thing, it says "by oral decision." So you will immediately
3 notice that what previously was essentially a written decision has now
4 become an oral decision. Let me explain something which -- the only
5 thing that I think is relevant in this context. The fact that we are now
6 saying by oral decision does not in any way diminish or do away with the
7 duty of the Trial Chamber to make sure that its oral decision is a
8 reasoned one. Prior to the amendment in December 1998 there would have
9 been a written decision, even in most cases it was preceded by an oral
10 decision. In both the oral decision and -- but particularly in the
11 written decision, the decision to acquit or not to acquit was always
12 motivated and the reason is not only because giving reasoned decision is
13 a matter of natural justice, it's a modern development in the area or in
14 the concept of natural -- principles of natural justice, for those who
15 believe in natural justice; for those who do not believe in natural
16 justice, it still remains a principle of justice. I'm saying that
17 because I know that in some areas it's almost an anathema to mention the
18 word "natural justice." So -- but I'm used to it and I mention it. So
19 that's number one.
20 And secondly because there has never been any doubt at all that,
21 although very rarely resorted to, there's still a right of appeal from
22 decisions taken on the Rule 98 bis -- on a Rule 98 bis motion. And I
23 said there have been very few instances, but there have been. What Trial
24 Chambers have done is that most of the time they have ensured - and that
25 includes also the trial - the Appeals Chamber, they have ensured first
1 that the appeals were dealt with and determined with the utmost celerity;
2 and secondly, the case, the trial will not stop pending the determination
3 of the appeal.
4 For these same reasons, I need hardly, therefore, repeat to you
5 that our oral decision will of course be a reasoned one, be a reasoned
6 one. So do not expect any surprises on the -- in that context. And of
7 course -- and after hearing the oral submissions of the parties,
8 basically this means that you will both be given the opportunity to be
9 heard, to make submissions, if you want to make submissions. No one will
10 be forced to make submissions. And after that, we are then expected by
11 the new Rule 98 bis to enter a judgement of acquittal on any count if
12 there is no evidence capable of supporting a conviction. Previously, you
13 would have noticed that the wording was -- "if it finds that the evidence
14 is insufficient to sustain a conviction on that or those charges." And
15 now you have the use of the word "count" and not "offences charged," as
16 you had previously in Rule 98 bis. You have a specific reference to the
17 count itself, which in common-law tradition is the matter that is a
18 matter that counts, it's the count itself. And instead of saying "the
19 evidence is insufficient to sustain a conviction on that or those
20 charges." We are saying if there is no evidence capable of supporting a
21 conviction, and what you don't many read is "under that count."
22 So is there a difference between "if the evidence is insufficient
23 to sustain a conviction" or "if there is no evidence capable of
24 supporting a conviction"? It is my submission to you, that there is
25 absolutely no difference at all in the approach. The only difference in
1 what there is -- is what I'm going to try to explain. We tried, in
2 formulating the simple, straightforward words of the new Rule 98 bis, we
3 tried to do our best to level out once and for all the different sort of
4 kinds of approach and methodology that was being adopted in the course of
5 the Rule 98 bis motion, mostly due to the different jurisdictions from
6 which each one of us comes and mostly due to not having, probably for
7 some of us, worked or experienced with Rule 98 bis procedure. We tried
8 to level out the various differences and also to level out the various
9 approaches to bring them in line with what had, by December, the end of
10 last year, become the standard pronunciation of the standard that was
11 applicable on rule after rule of repeated decisions by the Appeals
13 Basically, if in relation to a particular count the Prosecution
14 has brought forward evidence that in terms of the previous Rule 98 bis
15 would be described as being insufficient to sustain a conviction, forget
16 the words on that or those charges because those -- this is where the
17 problems arose most of the time. If the Prosecution did not -- provided
18 evidence which was insufficient to sustain a conviction, basically the
19 conclusion that the Trial Chamber would come to is that there is no
20 evidence that has been brought forward by the Prosecution that is capable
21 of supporting a conviction under that count. So you have noticed that in
22 the same sentence I have used the previous expression and the new
23 expression. "Bringing forward evidence which is insufficient to sustain
24 a conviction" is tantamount to not having brought evidence capable of
25 supporting a conviction. So don't expect the Trial Chamber to give to
1 the two versions, the old and the new, a different interpretation. I
2 hope I have made myself clear on this. I'm trying to use as simple a
3 language as possible so as to avoid confusion, knowing also that in
4 whichever direction I look I know that there are mixed jurisdictions and
5 mixed legal experiences and practices.
6 We have changed also the wording, the phraseology. We no longer
7 say what we had in paragraph (A) in the previous version. We don't talk
8 of acquittal on one or more offences charged in the indictment, which
9 could have been understood to mean that each -- that each count was to be
10 divided into various offences or that the events charged in a particular
11 counts could be equiparated with offences rather than events and are
12 underlying facts. And we have tried also to avoid what was contained in
13 the second paragraph of that previous Rule 98 bis, the last words "on
14 that or on those charges." Because in reality, if you look across the
15 Rules we see that, as often happens in most common-law jurisdictions, the
16 word "charge" and "count" are used interchangeably. In my county, for
17 example, technically speaking a person is charged until he comes to
18 trial; he comes to trial as an accused. So at that point in time, he is
19 no longer charged, he is accused. We make that distinction. But in most
20 common-law jurisdictions, basically when you speak of a count, you are
21 speaking of a charge; when you speak of a charge, for the purposes of
22 trial proceedings, you are speaking of a count. In order to try and
23 streamline as much as possible the phraseology used throughout the Rules,
24 we have opted for "count" rather than "offences charged" or "charges,"
25 with the understanding that everyone will try to understand that behind
1 the purpose of Rule 98 bis, there is not - and please, I repeat it again,
2 there is not a humungous exercise to be undertaking to deal with the
3 minutiae of the events mentioned during the testimony and trying to
4 establish whether a particular event has been proven or not proven or
5 whether we should concentrate on issues of credibility or issues of
6 authenticity, et cetera. Please, I'm making it very clear: There will
7 be no submissions made or received on issues of authenticity and
8 credibility at this stage; those will be reserved until later, if the
9 case proceeds. There will equally not be much entertainment of
10 submissions, which rather than concentrating on whether the evidence is
11 submitted -- brought forward is sufficient to sustain a conviction under
12 a particular count would deal with the minutiae of certain particular
14 The direction that we would like to lead you to is the following:
15 We have a case, a trial, with an articulated indictment, consisting of
16 six counts, six precise counts. What we will decide ultimately, after
17 hearing your submissions, is, for example, if under Count 1 the
18 Prosecution had adduced evidence capable of sustaining a conviction under
19 that count or not, and simply that. We will of course be prepared to
20 hear evidence if there is a submission that, for example, in regard to a
21 particular person mentioned in the indictment that's supposed to have
22 been the victim of cruel treatment or the victim of murder, it's the
23 submission of the Defence that there was absolutely no evidence at all
24 adduced by the Prosecution or that the evidence adduced is -- can never
25 sustain a conviction. Then I think - and we have discussed this amongst
1 ourselves - we will entertain submissions, short submissions, on that
2 score because ultimately it will be in the benefit of the economy of
3 justice that the Defence is put on notice that as far as regards the
4 alleged murder of, for example, Rado Pejic -- let me not mention names,
5 as regards the alleged murder of -- there's absolutely no way that the
6 Trial Chamber can ultimately come to a conviction so that they don't have
7 to lose or waste time in trying to bring forward evidence in that regard,
8 even though they have no burden of proof, but particularly because they
9 have a right to remain silent. So that right ought to be -- ought to be
11 Submissions relating to details, I think we can -- you can spare
12 us those. We don't need detailed submissions. Please concentrate on
13 where you believe that the Prosecution has not proved -- brought evidence
14 within the standard mentioned and set forth by the Appeals Chamber.
15 We would expect the Prosecution to stand up and say, We believe
16 that we do not have a leg to stand upon. We believe that we have not
17 adduced sufficient evidence according to the standard, to sustain a
18 conviction under Count 1, Count 2, Count 3, or Count 4, if you believe
19 so. I know that has been done in the past. I know that I am dealing
20 with an office that is highly responsible and has not hesitated in
21 pointing out to the Trial Chamber these shortcomings or weaknesses in the
22 Prosecution's case. After all, I believe that apart from the role that
23 the Prosecution has of prosecuting, you have also got the role of being
24 and ensuring to be the best friend of the accused in such like
25 proceedings in the high tradition of trial procedure that we are all used
1 to. So we would expect you to address the Trial Chamber immediately,
2 even before we give the floor to the Defence, when we come to that stage,
3 should you believe there are such weaknesses in your case.
4 We do not wish to hear any submissions by you, in particular
5 trying to explain why you believe that you have proved your case within
6 the Rule 98 bis standard in each and every area. If an area is contested
7 to you by the Defence, then do so by all means, you will respond and try
8 to contest and make submissions, your own submissions, on that. If there
9 is one count, for example, in particular which -- or parts of a count
10 that the Defence does not really make submissions upon, if it goes
11 through that exercise, which it might not do after all, then please don't
12 waste our time; we will do that exercise at the end of the day because we
13 are tasked with a responsibility. But otherwise, we don't need to hear
14 unnecessary -- unnecessary submissions on what is not being contested.
15 Then there is one final matter before I come to -- there are, for
16 example, as in Counts 5 and 6, instances where the accused is being
17 charged under 7(1) as a mode of responsibility, and there are instances
18 where he is being charged under 7(3) as a mode of responsibility.
19 Submissions on the alleged modes -- mode of responsibility will of course
20 be received because they relate to the various counts that we have and
21 are the basis of the various counts. So I need not dwell on this matter
22 any further. I think it should be self explanatory. When we say as in
23 Rule 98 bis as amended, we will hear oral submissions of the parties
24 obviously on the counts of whether there is sufficient evidence to
25 sustain a conviction on any count. It means also evidence -- sorry,
1 submission on the alleged -- not only on the events having happened, not
2 only on the mens rea and the actus reus of the accused, but also on the
3 mode of responsibility attributed to him in terms of the indictment. So
4 I think I have made that clear and I don't think I need to explain.
5 Last point before we have a break, and that will give you half an
6 hour time to -- then to say your own is then question of what's going to
7 happen as soon as -- towards the end of May or early June, at the latest,
8 the Prosecution rests its case. Let me say straightaway that I know that
9 although at the domestic level, as I have tried to explain on various
10 occasions, this is a procedure that is -- immediately Mr. Wubben stands
11 up and says -- we hear "the Prosecution rests its case," most of the time
12 there is not even a break. You look the other side and say, Any
13 submissions this direction? I would listen to what you have to say and
14 many instances dealing with cases that involve a very short number of
15 days -- a few days, and a very short number of witnesses, there would be
16 absolutely no difficulty at all for the Magistrate or Judge to take a
17 decision which be oral infallibly. But here, I understand the cases are
18 more complicated. I, for one, referring to that particular witness which
19 you are seeking to bring again or which the Defence might wish to recall,
20 I don't recall vividly each and every moment of his testimony, but I --
21 although I do recall a lot. So I do understand and we -- when I say "I,"
22 I say we have discussed this at length over the past days and we do
23 understand that these cases before this Tribunal are somewhat different.
24 But you also need to understand that the procedure that we will
25 ultimately adopt will not render for all intents and purposes useless or
1 futile the whole purpose of the amended Rule 98 bis. In other words, the
2 whole exercise is to make sure that we address ourselves to what
3 traditionally were applicable Rule 98 bis processes for acquittal after
4 the Prosecution case should be -- should seek to achieve and should
5 ultimately mean. That's number one. Not -- in other words, not to
6 involve ourselves in examining certain details that need not be examined.
7 And secondly, to ensure that the whole exercise is speedily concluded,
8 speedily concluded.
9 We will have a break now. And as soon as we return in half an
10 hour's time, of course I will -- you will all, both, have an opportunity
11 to return to make submissions on what I have said. And in particular,
12 also with regard to this last part of my intervention, particularly what
13 are your intentions, evil or benign, as there might -- as they might be,
14 then ultimately we will decide and we will let you know beforehand what
15 our decision will be. We are open, of course, to any constructive
16 suggestions that you may have. We will be fully aware of your needs, but
17 you also need to keep in mind making any submissions that we have
18 responsibility to shoulder. Unfortunately, it has fell on this Trial
19 Chamber to deal with this matter first because in the Limaj case,
20 apparently, the parties have renounced to resorting to the procedure.
21 They have -- they will not be making any submissions. So the role of the
22 Trial Chamber has become much easier there. We'll here what you have to
23 say. Then you will have our decision later on, which would give you
24 roughly a good month in advance -- advanced notice and knowledge of what
25 to expect. And then we will act accordingly.
1 I thank you for listening, and we will resume in 30 minutes'
2 time, that is 5 minutes past 11.00. Thank you.
3 --- Recess taken at 10.32 a.m.
4 --- On resuming at 11.07 a.m.
5 JUDGE AGIUS: So I think we can proceed. If there is any point
6 on what I have stated that you think I need to expand or explain further,
7 please let me know.
8 Yes, Mr. Wubben.
9 MR. WUBBEN: Your Honour, my submission will be short in time.
10 The Prosecution is much obliged with the clarifications done in
11 the submissions by Your Honours prior to the break. It clarifies the
12 Trial Chamber's opinion in such a way that it will be supportive to
13 parties to know in advance what direction the approach should take with a
14 view to the procedure, as well as to the standard applied, too. We
15 shared this outcome of the opinions submitted by the Trial Chamber.
16 Again, it will be a support for us because it's also clarified further by
17 the Presiding Judge, and that means that we also adopt the standards and
18 the set of the submission as projected by this Trial Chamber. That's why
19 I can be short in time with my submission, only in addition two points,
20 but that's additional.
21 The first issue is, then, that the Prosecution would like --
22 that's in the phase prior to the 98 bis submission would like to revisit
23 the issue of the agreed facts among parties, meaning, for example, an
24 armed -- international armed conflict as such as a potential agreed fact.
25 This is an example, but we would like to revisit that and to contact the
1 Defence --
2 JUDGE AGIUS: Hadn't you withdrawn that from the indictment
4 MR. WUBBEN: Well, the international part --
5 JUDGE AGIUS: Yeah, the international part.
6 MR. WUBBEN: But the armed conflict as such. I mean an
7 example --
8 JUDGE AGIUS: Okay.
9 MR. WUBBEN: Anyhow, we would like to prefer to contact the
10 Defence in order to propose to them and to learn their position in that
11 respect, also to expedite the trial in such a way that even in advance it
12 is clear that we can trim our case as regarding the facts. That's one
14 The second issue is the scheduling as such after, so subsequent,
15 to the finalisation of the Prosecution case. There is then, first as we
16 perceive it, the submission by Defence counsel; then subsequent,
17 submission by the Prosecution. We should be able to address the
18 submission by Defence counsel fully and to do it in a professional way,
19 and we will do so, meaning also that we are interested in time scheduled
20 for a break between those two submissions and we would like to learn the
21 opinion of the Trial Chamber in that regard because what might be
22 supportive if that break is short in time that the Defence is able to
23 give prior notice to the parties, including the Trial Chamber and the
24 Prosecution, of the issues that will be addressed in their submission.
25 So if the break is short in time, that will certainly expedite the
1 proceeding as such. We should be able, then, given the fact that there
2 is a prior notice, let's say one or two weeks in advance, that we are
3 able to already work on the preparing of those issues. And we would like
4 to learn the opinion of the Trial Chamber, and that is also an aspect I
5 believe the Trial Chamber will be supportive upon that decision-making
6 whenever the Trial Chamber by itself learn to what length the submission
7 is intended by the Defence.
8 And this also gets back to the general observation that, and I
9 quote you, Your Honour, "neither party should be taken by surprise," as
10 such. Including, that's my conclusion, that there's time to prepare.
11 Thank you.
12 JUDGE AGIUS: I thank you, Mr. Wubben.
13 Who is going to deal with this? Mr. Jones?
14 MR. JONES: Yes, I will, and I might just put the lectern up, if
15 you just give me a moment. Yes. Thank you, Your Honour.
16 I wanted to firstly just say some general -- well, give some
17 general comments about Rule 98 bis and then come to the points made by my
18 learned friend in response. And firstly, I just wanted to say a little
19 about the virtue, if you like, and the importance of Rule 98 bis from the
20 Defence side. Firstly, everything Your Honour said this morning confirms
21 our understanding of the new Rule 98 bis, namely, obviously, that it's
22 oral but that it's -- no longer party-driven, to a certain extent a
23 proprio motu power of the Chamber, that there would be a reasoned
24 decision and possible right of appeal. Arguably that would involve
25 leave, but that's a peripheral matter.
1 In terms of the virtue and importance of Rule 98 bis, I wanted to
2 emphasise that a little bit, partly because Your Honour suggested last
3 week that it might be something which in a practical spirit we could
4 bypass and go straight on to the Defence case. I just wanted to say that
5 for our part, if we will make a Rule 98 bis submission - which we will
6 do, I can confirm that now - it's because we genuinely believe it should
7 succeed. If we make it for the whole of the Prosecution case that it
8 should succeed entirely, and that we should all be prepared to go home;
9 in our case, literally go home, figuratively for the other parties. The
10 case will be over in June. If we make a submission, we're not just going
11 through the motions of making a motion which we know will not proceed, we
12 think that the Prosecution has not made out the essential elements of
13 their case.
14 So going back to the general elements of Rule 98 bis. I think it
15 would be impossible to abolish it altogether because of course if the
16 Prosecution has to prove X, Y, and Z, and those are essential elements
17 what they have to prove, if they haven't proved X, let's say, then
18 obviously there's no point of going on to the Defence case, there's no
19 point as a practical matter, because that's months of trial, tens of
20 witnesses, hundreds of thousands or Euros or dollar which have been spent
21 when it needed by because the Prosecution hadn't established the basics
22 of what they need to establish.
23 And there is also, as Your Honour said, a point of principle
24 which is if the Prosecution hasn't even made out the outlines of their
25 case, then the defendant is not called upon to bring witnesses to answer
1 a case which hasn't even been made out.
2 Your Honour referred to the right to remain silent. Just for
3 purposes of clarification, I understand that to mean the right not to
4 call witnesses on his behalf, because of course the right of the accused
5 to remain silent remains throughout the Defence case. And indeed I would
6 even go so far as to say that given the difference in threshold between a
7 prima facie case and beyond a reasonable doubt, it could even be that you
8 have an unsuccessful submission, no evidence called by the Defence and
9 still an acquittal. In any event, that's all just by way of
11 JUDGE AGIUS: Just for the record, I agree entirely with you, Mr.
12 Jones. It has never been doubted indeed.
13 MR. JONES: Thank you.
14 Your Honour referred to the history of this Rule. I think what's
15 important in the light of what I was just saying about the virtue and
16 importance of Rule 98 bis, it may be that in the past it has been
17 somewhat abused, in the sense that perhaps sometimes there was
18 applications that have been made which should not have been made because
19 there was clearly a prime facie case and written submissions had become
20 lengthier and lengthier. So that eventually one had two trials, two sets
21 of lengthy pleadings, at the close of the Prosecution case and then again
22 at the close of trial.
23 That's why we're adamantly in agreement with the Chamber that
24 this should be absolutely an oral proceeding and it shouldn't slip back
25 into a proceeding in which there are exchange of written pleadings. And
1 that will bring me in a moment to Mr. Wubben's request for written
2 filings in advance of the application.
3 As far as the test is concerned, I think that that too is clear
4 and it was helpful, for Your Honours' confirmation, that the test is the
5 same. And in fact -- I suppose in other words it's because evidence must
6 be sufficient to sustain a conviction for the case to go ahead. So in
7 other words, if there's not sufficient evidence, then it stops there. It
8 makes perfect sense.
9 There's the test which we're familiar with in the common-law
10 jurisdictions of whether a reasonable trier of fact could convict on the
11 evidence, but I think it's much of a muchness that these are the same
12 sort of tests. So again it's to -- we can confirm from our part that our
13 submissions will be very focussed as to there being no evidence or
14 practically no evidence on certain elements and we won't make extensive
15 submissions about the weight which should be accorded different items of
16 evidence and certainly not to all sorts of matters which are not directly
18 And again just for a general understanding, my understanding from
19 my experience in the UK is that a submission would be, for example, where
20 you have a crime like facilitating a legal entry or gain - and we would
21 submit gain has not been shown, no evidence whatsoever of gain - and if
22 we're right it's over; or murder, where there is no proof of death --
23 JUDGE AGIUS: Again, I think it is worth interrupting you. This
24 is precisely the way we look at it. And you can imagine, each and every
25 count here has got its legal ingredients requirement. And if you think
1 that the Prosecution case should stop because one of these requirements
2 has not been fulfilled, that's what you should concentrate on and we
3 don't want to hear submissions on the rest.
4 MR. JONES: Precisely. And it may be, and to anticipate a point
5 I was going to deal with later, when we deal with command responsibility,
6 there are clear cumulative elements which have to be shown by the
7 Prosecution and there is no dispute as to what those elements are. And
8 it may be that our submission might be just on, let's say, the very first
9 one or the second one, and simply that that element has not been shown,
10 and of course it follows that if that element has not been shown then the
11 whole thing falls through because they are cumulative elements.
12 If we do take that approach, and we don't wish it to be
13 understood that we are conceding that there is a sufficient case on any
14 of the other points, it's simply that we wish to make a focussed
15 submission on our stronger points and that's the approach we will be
17 JUDGE AGIUS: Agreed, Mr. Jones.
18 MR. JONES: Thank you, Your Honour.
19 Just a few clarifications on our part. As Your Honour said this
20 is no longer party-driven and looking at the rule it's no longer evident
21 that it's clearly a motion by the Defence.
22 JUDGE AGIUS: It's not. It is clear that it is not a motion by
23 the Defence.
24 MR. JONES: Yes, which does raise questions to the procedure in
25 which order the parties will make their submissions. It may be the
1 practical approach the Prosecution first indicate they are conceding any
2 counts; that we would then make a more substantive submission. The
3 Prosecution would respond and then we would reply. That's what we would
4 propose would be a good procedure and we can discuss in a moment whether
5 breaks would be appropriate or not.
6 As far as the oral procedure is concerned, we would understand
7 that this wouldn't preclude us for using, for example, skeleton arguments
8 or any sort of material which will just aid presentation, which would be
9 passed out on the day just simply to help Your Honours follow our
10 submissions. But if that's something which the Chamber decides it would
11 vitiate the oral nature of the procedure, then we're of course prepared
12 not to do that. It would be only to help.
13 JUDGE AGIUS: Yes, we'll deal with this. I thank you for raising
14 this matter because it had been in my mind and I forgot to mention it
16 Yes, go ahead.
17 MR. JONES: Yes. We would also --
18 JUDGE AGIUS: I will come to it later.
19 MR. JONES: Thank you, Your Honour.
20 We would also envision and welcome an interactive procedure as
21 well, in which -- since after all it's Your Honours who we would be
22 seeking to persuade, we would see it that Your Honours would feel free
23 interrupt at different points and put questions. In that way it could be
24 -- it would be more expedited, certainly, but it would make more sense if
25 we're effectively able to persuade Your Honours, if any doubts Your
1 Honours have are able to put to us during the hearing. Yes.
2 As far as two points made by my learned friend, two requests
3 perhaps. Firstly, agreed facts. It's something which -- we're always
4 open to discussions with the Prosecution on any subject, but I think as
5 far as agreed facts are concerned we would say it's a bit late in the day
6 for that. Because if the Prosecution is asking us to agree a fact it's
7 because it wasn't proved during their case and their case will be over
8 shortly. When we're talking about 98 bis, their case will be over and if
9 they haven't proved a fact which they think they should have proved at
10 that point, I hardly see that we're going to agree that fact.
11 As far as the schedule is concerned, we are really in favour of a
12 very expedited oral procedure, really to the point of where we would be
13 happy with the last witness being heard on Friday, I think it's the --
14 I'm not sure of the exact date, the 27th or the 28th, and we would make a
15 submission on the following Monday. And we thought even a week without
16 breaks, two days for the Defence to make their submissions, two days for
17 the Prosecution to respond, and a day for us to reply, would mean we
18 could have the whole procedure dealt with in a week, which firstly would
19 set a very good precedent for first application of this Rule, to show
20 that it can be dealt with in an expeditious way.
21 And secondly, because any breaks -- well, particularly breaks in
22 which it is proposed written notice be given would delay the procedure by
23 weeks, really, and I'll say why. If the Prosecution said, Well, we have
24 to have notice of the points we're going to make and they want a week for
25 something for that to happen, we of course have an equal right to receive
1 notice or to have a break anyway to reply on their response and the whole
2 thing would get drawn out into June, when frankly I think it's in all our
3 interests to have this proceeding dealt with in the first half of June.
4 But as a matter more of principle rather than planning. Firstly
5 as the Prosecution closes their case, we can't notify them of the points
6 we are going to take because that would be tantamount to alerting them to
7 things they haven't proved. So if we were to say before they close their
8 case, Oh, actually you haven't produced any evidence on this point, then
9 they can come back and fill that gap and we would have done the
10 Prosecution a favour, which it's not any part of our duty to do.
11 So one can only contemplate the starting point of any notice
12 coming once the Prosecution case closes. So as I say you have delays
13 already from the procedure we are proposing where we start straight in on
14 Monday after the last witness is heard on Friday.
15 And if we, the Defence, who after all are going to be doing most
16 of the running on this motion, if we are prepared to go straight in after
17 the trial closes, then we say the Prosecution should be willing to do the
19 But perhaps more fundamentally as a point of principle, this
20 isn't a motion where the Prosecution is going to be surprised or ambushed
21 by anything, because quite simply we are going to be making submissions
22 that insufficient evidence is produced on certain counts. The
23 Prosecution absolutely should know at this stage what they say proves
24 each element and each count. The Prosecution should know right now that
25 let's say for Bjelovac proof that subordinates of our client committed
1 the crimes, they should be able to say this witness and the other
2 witness. It's something which they should have to hand immediately. And
3 so it should be something they should respond to immediately when we say
4 there has not been sufficient evidence. There is nothing coming from
5 left field, as they say, which will surprise the Prosecution.
6 If we were to make legal arguments which would involve arguing on
7 the basis of authority, and I can see the Prosecution saying can we be
8 alerted beforehand if you're going to be relying on this authority or
9 that authority or make this legal argument. That's fair enough. But
10 these are factual matters which -- we've all been following the evidence
11 given in this case and there's no reason at all why the Prosecution
12 shouldn't be able to immediately respond on our submissions.
13 Just two -- some final points as well to clarify our
14 understanding. We agree entirely that authenticity and credibility are
15 not issues which we would be getting into, which is partly a reflection
16 of the fact that you would be taking the Prosecution's evidence at its
17 highest, to a certain extent. However, of course, if there is a document
18 which Prosecution was relying on and it has been shown to a witness and
19 the witness says that doesn't reflect the reality, or it hasn't been
20 shown to any witness, then of course we will reserve the right to say
21 that document has no probative value because it hasn't been confirmed by
22 any witness. That's not really an authenticity issue, it's just to say
23 we may make submissions on documents.
24 Also, in terms of the way we would structure our submissions, we
25 would, as Your Honour suggested and as we've confirmed, address very
1 specific elements and counts in a very focussed way; however, to do that
2 it may be that there is a chain of reasoning which -- which has to be
3 followed where we would first have to say on in general subject there has
4 been no evidence of such, and then another area, and then that would lead
5 to the conclusion that there was insufficient evidence on that count. So
6 to alert Your Honours that we may deal in other matters, but in a
7 directly relevant way which I will be happy during the course of
8 submissions to explain the relevance. And we also may structure our
9 submissions not necessarily in the order of the counts. We might do them
10 in another order. But I'm sure that's all --
11 JUDGE AGIUS: And for that particular purpose, may I put it to
12 you, Mr. Jones, that I believe you should be the one -- in other words,
13 when I say "you," it's the Defence that should be the one to go first and
14 not the reserve.
15 MR. JONES: Yes, because otherwise the Prosecution would feel
16 to --
17 JUDGE AGIUS: I hope that's agreeable to you as well.
18 MR. WUBBEN: Yes.
19 JUDGE AGIUS: That's how I have always seen it and I want to make
20 sure that you fully agree with this approach: Defence should go first,
21 choose the way to present their case for acquittal, and then you will
22 respond, preferably trying to keep to the same pattern or the same order
23 of arguments as presented by the Defence, if that -- but of course you
24 will have other options available if you want to.
25 Yes, Mr. Jones.
1 MR. JONES: Yes, and unless I can assist Your Honours further,
2 that's really all I wanted to say. And really just to reiterate that
3 we're in favour of the most expedited oral proceeding conceivable. We
4 think it's a good precedent to set and that we are opposed to any filing
5 of notice and what not, because -- it's particularly also for this
6 reason: That if we were to give notice or have to be obliged to give
7 notice to the Prosecution of their points and possibly the converse from
8 their side, we would be in a situation where, as with any written
9 submissions, if we omitted something it would be open to the Prosecution
10 to still claim, oh, well, we've been ambushed, we didn't know this point
11 was going to be taken. It would be open to the Prosecution to say this
12 is obviously a point the Defence has just thought up because they didn't
13 put it in their notice. And generally, as with any written submission,
14 it puts pressure on us to have a full, written submission to make sure
15 that we're fully entitled to raise the points in the oral hearing. So I
16 would submit that very quickly we would slide back into a written
17 procedure and that the only way really to ensure that the spirit of the
18 rule is observed is for it to be fully oral, albeit with aids on the day,
19 skeletons, and what not, which might assist Your Honours to understand
20 and follow the submissions. Thank you, Your Honour.
21 JUDGE AGIUS: I thank you, Mr. Jones. I'll try to address all
22 the points raised, with the understanding that some of these points
23 obviously we have not had time to discuss amongst ourselves. So Judge
24 Brydensholt and Judge Eser, as I go along if there is anything that you
25 want to reserve your position upon or disagree with me, just stop me. We
1 will have a short break and we will discuss outside, just in case I say
2 anything with which you're not in agreement. All right.
3 [Trial Chamber confers]
4 JUDGE AGIUS: So, Mr. Wubben, do you want to respond to what has
5 been mentioned by Mr. Jones?
6 MR. WUBBEN: Yes, Your Honour. In short, and focussed on the
7 prior notice, that that's an issue that's driven -- not to be informed in
8 detail but is driven by the argument that we should give a specific
9 response to a submission -- an oral submission by Defence counsel
10 regarding 98 bis. That means that this Defence counsel that select the
11 details for that submission and if we are then able to respond directly
12 to that, that will be a -- quite an effort to comply with all the issues
13 that will be -- will be dealt with by the Defence.
14 Rather, if the Defence is afraid of giving away their position or
15 giving away the possibility that -- or not giving away, but put the
16 Prosecution in the position that we know that our evidence might be weak
17 or not, that that can be avoided by giving us as much as possible the
18 issues and not putting it in a way like, these are the issues we will
19 address, but the caveat in this moment in time, we will inform you of
20 these issues we will address during that submission.
21 And anyhow, in preparing it it's easy to say that we have the
22 factual information available. Yes, we have; but to put it in a manner
23 that will address efficiently and effective the submission of the
24 Defence, that is step two and apart from that there are also, apart from
25 the factual allegations, there are also the legal elements and the legal
1 questions, preliminary questions, to dispute and then to deal with.
2 The second part, that last part, briefly also to the skeleton
3 issue raised by the Defence counsel. As I envisaged when I looked at the
4 Trial Chamber decision in the Brdjanin case and in the Hadzihasanovic and
5 Kubura case regarding 98 bis, there is this framework of first the
6 preliminary questions and then focussed on general legal elements. And
7 then it comes to the factual parts of the counts, and then subsequent to
8 the legal parts of the count. Now, this -- this can be followed as such,
9 meaning -- meaning that framework is a kind of proof of technology and
10 enable parties to give a kind of overall skeleton for their submission.
11 I'm much obliged that Defence counsel raised this because it will also
12 serve and support the Prosecution.
13 When it comes -- and that's my latest point -- filling in the
14 date of the -- of the 98 bis submission, to starting of it, and now
15 already speaking about the mandate to start subsequent to the end of May,
16 for me, that is really speculation. I don't know to what extent the
17 submission will be by the Defence. I don't know the specific date, the
18 last date. We are still in the phase of rescheduling our witnesses.
19 Depending on these circumstances, I would prefer and advise Trial Chamber
20 to learn first more information and then not to jump right away, but give
21 both parties the time to prepare for their submission. Thank you.
22 JUDGE AGIUS: Okay. Thank you.
23 Let's have a very short break. I -- everyone needs -- will stay
24 here, wait a little bit, because we'll only be a couple of minutes out
25 just to make sure that we are fine-tuned, as we usually are on
1 practically everything. Thank you.
2 --- Break taken at 11.36 a.m.
3 --- On resuming at 11.42 a.m.
4 JUDGE AGIUS: So the accused is here as well.
5 So I thank you both, Mr. Jones and Mr. Wubben. We've had a short
6 discussion in the meantime. The idea is to ensure that we are
7 fine-tuned, the three Judges, as possible. As I said, we are almost
8 always very well fine-tuned.
9 Let me try and take a few points that have been raised one by
10 one, but before I do so let me make also one thing clear which I failed
11 to mention earlier on and this relates to the retroactive application of
12 the amended Rule. You know as much as we do, that we have Rule 6(D) of
13 our Rules which provides that "An amendment shall enter into force after
14 seven days of issue of an official Tribunal document containing an
15 amendment, but shall not operate to prejudice the rights of the accused
16 or of a convicted or acquitted person in any pending case."
17 I have not heard any submissions, and I would have expected those
18 submissions to come from my right side.
19 MR. JONES: Yes.
20 JUDGE AGIUS: I have not heard any submissions that -- to the
21 effect that the application of the current Rule 98 bis would prejudice
22 the rights of the accused.
23 MR. JONES: Yes, and for the record I should just confirm that we
24 don't wish -- we wouldn't say that it prejudices the accused's rights.
25 JUDGE AGIUS: Right. I thank you, Mr. Jones, for clearing that.
1 Now, let's start with the other matters raised. Agrees facts.
2 Of course, Mr. Wubben, I do and we all appreciate your effort to have
3 this exercise carried out before you come to the stage of making final
4 submissions on the Rule 98 bis exercise. I do see the importance of it.
5 But short of the Defence adhering -- agreeing with you, adhering to your
6 request, we can do nothing about it. I mean, this question of agreed
7 facts at this stage of the proceedings is, in my view, nothing that the
8 Trial Chamber should involve itself with. It involved itself with it
9 during the pre-trial stage, as you recall. We made an effort to see if
10 you could come halfway. After that, you had both filed written
11 submissions on this matter and agree on a few facts and disagreed on the
13 I think, Mr. Wubben, if Mr. Jones doesn't want to cooperate with
14 you on this, which is his prerogative, it is his choice, I would suggest
15 to you that you do not try to involve us in the exercise.
16 The question of -- I come to the next point. The question of how
17 much information and in what form should it be -- should it be exchanged
18 between the parties. My clear message to you is the following: You are
19 of course free to exchange between yourselves notes and information as to
20 what points you are going to cover during the submissions and any further
21 information that you might like or be ready to disclose to the other
22 side, but please don't try to use this as a means of reverting to the old
23 system of written submissions.
24 You are also free, because this point was raised by Mr. Jones,
25 during your submissions to present -- make presentations -- I don't know
1 what you might have in mind. But if you think that your submissions may
2 be enhanced and be projected better by means of, I don't know, a chart
3 for example, a chart explaining, for example, what, according to you, was
4 the chain of command, well you're free to do that. But if what you meant
5 was essentially reducing into writing the submissions that you would make
6 orally, then that will be resisted because that would be tantamount to
7 reverting in a clandestine manner to the old regime of having written
8 submissions when the idea is to do away with those written submissions.
9 In other words -- because I am trying to read into your minds.
10 If this is intended as notes which would be a sort of a -- an aid to the
11 Trial Chamber to try and focus better on the points made during the oral
12 submissions, I thank you very much, we don't need it because we will have
13 the transcript in any case and we will be able to look at the transcript
14 whenever we need to look at the transcript. If it's other matters that
15 you think will help you advance better the points that you are trying to
16 make during the oral submissions, yes, of course, depending on what they
17 will be, you will have every chance of doing that. But please use your
19 The standard rule should be, we have changed, switched, from a
20 written procedure to a distinctly oral one and it -- we should honour our
21 commitment and make sure that it remains an oral one. That's all. Okay.
22 Can I ask Mr. Jones on behalf of the Trial Chamber to, yes, tell
23 you beforehand what his submissions are going to be or at least some kind
24 of submissions. And first of all, I see a lot of value in the point made
25 by him that until the very last word coming from the mouth of your very
1 last witness has been uttered, I don't think he should even be in a
2 position to speak up. After all, as you all know, he is not bound to
3 stand up and tell you what he is going to submit two days later or three
4 days later. I mean, it's -- so we will not raise that matter with Mr.
5 Jones, with Mr. Jones. It's a matter of maybe further contact between
6 you as we approach the D-Day, as we approach the debate on Rule 98 bis.
7 I am confident that the relations that have existed so far to
8 date between the two sides, barring certain minor incidents which, you
9 know, they are normal tiffs which happen one minute and are forgotten the
10 next, I think the relationship has been very positive and I have no
11 reason to doubt that it will remain to be so. I mean, judging from what
12 Mr. Jones himself has said, if, for example, when he stands up to start
13 with his submissions, he intends to make submissions as to whether a
14 particular crime, for example, particular crime existed at the time when
15 it's supposed to have been committed under international customary law,
16 for example, and he wants to make submissions on that, he should put you
17 on notice of. Because obviously if he doesn't and that happens, it will
18 have caught both you and us unawares. We are in a position to allow
19 ourselves as much time as we need and we don't have to respond, while you
20 have to respond. And that would be tantamount to putting you in a
21 position which you can then ask for time to study the matter and then
22 come forward to address. So it's a question I think you should use your
23 good sense, both of you, and continue in the fruitful interaction that
24 there has been and cooperation there has been between you until the very
1 Mr. Jones also mentioned that he would prefer to have some kind
2 of interaction with the Trial Chamber as this process develops. Yes, by
3 all means. And I can also tell you that we will need our time as well to
4 decide because we have a greater responsibility, actually, thrust on our
5 shoulders than one would imagine. So we'll go through everything, and
6 it's not to be excluded that we may encounter some problems which you may
7 have not -- which you may have missed completely, in which case it is not
8 to be excluded that we can also, we may also come back to you in open
9 sitting, obviously, and ask you to address the matter.
10 Let me make myself clear on this because I don't want to mislead
11 you. Let's take for an instance, certain example, neutral example, Mr.
12 Jones stands up and he says on Count 2, for example, cruel treatment as a
13 violation of the laws or customs of war. His submission would be, for
14 example, as regards this count, these are the formal legal requirements
15 and these are the ingredients or the elements of the actus reus. We
16 submit that Prosecution has not adduced sufficient evidence to sustain an
17 indictment, in so far as this and this and that is concerned. Full stop.
18 Finished. And let's suppose that you will be very laconic in your
19 response and your submission would be, We beg to disagree, we beg to
20 disagree. Our submission is that this has been amply proved within the
21 parameters of the standards set. So let's say that is the position.
22 And then let's say when we are doing our homework with -- amongst
23 ourselves, also with the help of our staff, we find out that there is
24 some, for example, damning evidence that would not -- and that would
25 never really explain how on earth Mr. Jones even thought for a moment
1 that you had not proven that case. We are not going to come back to you
2 at that point. We are not going to tell you, Mr. Jones, please look to
3 the evidence of Mr. XY, transcript page, et cetera, lines -- so 1 to 20.
4 That you should have looked at before you stood up and took the plunge.
5 In other words, when I say that we may come back to you on
6 certain issues, it means to have a clarification, not to fill in where
7 you have left out. In other words, we come to you where we think we need
8 some clarification which would help us to come to a conclusion. I'm not
9 saying that we definitely will come back, but I'm not excluding that we
10 might come back. That's the point I wanted to make.
11 During the discussion itself, during the submissions itself, we
12 would have already of course started, like you have already, started
13 doing our homework on the Rule 98 bis. In other words, don't expect a
14 situation to obtain on the first day when you start with your submissions
15 that we will have in the courtroom where we will be working that day, the
16 Defence team who have gone through the whole records and are fully
17 prepared to make first-class submissions; similarly, the Defence, equally
18 prepared to respond in a most capable manner to all the points raised by
19 the Defence, because you would have studied in its entirety the whole
20 records of the case; and a Trial Chamber who has to start from scratch.
21 It will not be the case. We have been following the case just like you
22 have and when you come to that moment, we will be as informed as
23 possible, as informed as possible. So we should also be in a position to
24 interrupt you at certain moments and ask questions and ask you to clarify
25 this or clarify that if it is the case.
1 Don't expect the Trial Chamber to come here on that day really
2 ready only to hear what you have to say and then start doing its homework
3 afterwards. So it will not be the case. We will continue doing our
4 homework afterwards, and the homework will then of course focus on the
5 submissions which wouldn't be able to focus upon not having heard them
6 until you start with your submissions, but that will be the position.
7 Now, time. What you said, Mr. Wubben, alarmed me a little bit
8 because -- I hope I have misread you, because the way I understood you
9 was that although until, say, a couple of days ago, basing yourself on
10 the last -- most recent updated witness -- confidential witness list, we
11 have a more or less clear indication when we are going to finish with the
12 case of the Prosecution. And in spite of the fact that earlier on in the
13 day, after hearing both you and Mr. Di Fazio, I got the impression that
14 we might finish even earlier. I now sort of get the impression - I hope
15 I have misunderstood you - that you yourself are having second doubts,
16 second thoughts as to when you are going to finish your case. And if
17 that is the case, I'm going to call upon you to explain and tell me when
18 you intend to finish the case. If not today, you need to tell me this
19 tomorrow or Friday.
20 MR. WUBBEN: Your Honour, I can be very clear.
21 JUDGE AGIUS: Yeah.
22 MR. WUBBEN: We expect to end the case by the end of the month.
23 JUDGE AGIUS: Okay. So then the problem more or less becomes
24 more of a cosmetic one. Let me put it like this: It seems to me that as
25 soon as you finish -- it makes a difference if you finish -- if you rest
1 your case on a Friday and we start on a Monday, that's basically --
2 what's in between is a weekday -- is a weekend, two days, Saturday and
3 Sunday. If you finish your case on a Monday, then you have the rest of
4 the week plus the weekend. So I think what we need to discuss is this,
5 because I do not equiparate, but on the same standard weekdays when you
6 are also expected -- I know that we all work on weekdays, all of us, not
7 just you. And I also know how sometimes the pressure of work requires
8 that you, in particular, work very hard on weekdays -- on weekends.
9 I think that need not be the case for the purpose of Rule 98. I
10 think that saying if the Prosecution case is rested on a Friday, that we
11 should start immediately on a Monday. I think that can reasonably be
12 avoided. That can reasonably avoided, provided this does not mean that
13 it would entail much delay. So what I would suggest is the following:
14 End of the May -- of the month would be what day? Tuesday.
15 So if -- let's assume -- and the understanding is that there will
16 be flexibility as we approach the date. We may change, obviously. What
17 we are saying is just by way of giving an indication what to expect.
18 Let's imagine for the time being that Mr. Wubben -- that the Prosecution,
19 sorry, rests its case either on Monday, the 30th, or Tuesday, the 31st of
20 May -- of May, May, May, May. Of May. That's a Monday or a Tuesday.
21 Mr. Jones, since you would be the first one to go -- when I say
22 "Mr. Jones," I mean the Defence. It's -- but I would take it since you
23 are more familiar with this procedure that you will be dealing with this.
24 You said you would roughly need two days to -- for your submissions?
25 MR. JONES: Yes.
1 JUDGE AGIUS: Assuming that we finish the Prosecution case on a
2 Monday or on a Tuesday, when would you prefer to start, the following
3 Monday or what?
4 MR. JONES: Well, our proposal was really to go right ahead. So
5 it would be disingenuous of me to give myself an extra three or four days
6 to prepare. Having said that, if we finish the trial in mid-week,
7 starting the next Monday means that we would have a week, depending on
8 how long Your Honour decides the Prosecution should have. But starting
9 with a fresh week would make sense, that so would be the 6th of June.
10 JUDGE AGIUS: That's what I thought, too. So basically that
11 would mean that you would start on the -- Monday, the 6th of June. It's
12 not a holiday, is it? Please watch out if we have any holidays.
13 MR. JONES: It's a holiday in Ireland according to my diary, but
14 none of us are Irish.
15 JUDGE AGIUS: I have Italian and French blood, but not Irish,
16 although I drink Guinness, of course. We all do, probably.
17 That would mean, basically -- my idea is the following -- we
18 don't have. If Mr. Jones takes Monday and Tuesday, that is, the 6th and
19 the 7th of June, provided that there is no real, serious reason for a
20 longer interval of time, I would suggest that you start the Monday after,
21 which would be the 14th.
22 MR. WUBBEN: Do you mean --
23 JUDGE AGIUS: The 13th, yeah, okay.
24 MR. WUBBEN: Your Honour, we would prefer to have a longer
25 interval in time.
1 JUDGE AGIUS: Why?
2 MR. WUBBEN: Why, because, Your Honour, as we don't know what the
3 position of the Defence will be and working on it, they are already in a
4 position to work on it and we have to prepare to address it fully. So we
5 would advise the Court to take into consideration that we prefer more
6 time than a week.
7 JUDGE AGIUS: We will come back to you after we have discussed
8 this because this is the agreement that we have. We will hear what you
9 have to say and then we will obviously talk this, discuss among ourselves
10 and come back to you on this.
11 MR. JONES: If I may, Your Honour, two things really. If the
12 Prosecution has a delay after our motion and their response, then the
13 Defence equally will have to request an -- a similar delay before we make
14 our reply. What's sauce for the goose is sauce for the gander.
15 JUDGE AGIUS: Obviously.
16 MR. JONES: I just wonder whether the Prosecution has a
17 misconception about Rule 98 bis. We will be saying that they have not
18 produced sufficient evidence for the counts, and so they can prepare as
19 of this very moment to argue that there is sufficient evidence for each
20 of the counts and each of the elements. That's 90 per cent of the work
21 done. It really -- in my submission it would be a mistake to draw it
22 out, given that there are other events this June which means that the
23 procedure would get protracted into July. And in your submission --
24 JUDGE AGIUS: No, really, definitely. Forget -- for -- I simply
25 don't even want to hear the word "July." It's -- forget it. It's --
1 otherwise I can't even face my other colleagues on this issue. I mean --
2 MR. WUBBEN: That is not our intention, Your Honour.
3 MR. JONES: It's because we have a right to reply, that's the
5 JUDGE AGIUS: But the thing is this. Because you are adult
6 enough and mature enough to understand how I have been moving. I could
7 have -- taking advantage of what Mr. Jones himself had stated, I could
8 have said, Prosecution will finish Monday or Tuesday of -- 30th or 31st
9 of May. Mr. Jones, I give you Wednesday and Thursday to prepare, or I
10 give you Wednesday, if you agree, and you make your submissions Thursday
11 and Friday, they would have had one day. And then I could easily look at
12 you and say, And you, Mr. Wubben, will have the weekend, maybe Monday
13 because I will expect you to rest during the weekend and you will make
14 your final submissions Tuesday and Wednesday. And we would have finished
15 in seven days.
16 MR. JONES: We're amenable to that suggestion.
17 JUDGE AGIUS: I know you are. And that's why instead of
18 suggesting that, I said let's take the three days -- remaining days of
19 the week plus the weekend, which would make it five, because it would
20 justify me looking towards you and saying you will have exactly the same,
21 another five days. Because otherwise the message that I get from the
22 Defence is that with one day or even less they would be prepared. In
23 fact, Mr. Jones has practically for all intents and purposes repeated the
24 same words that I said to my colleagues earlier on in the week when we
25 were discussing these matters. I said that knowing that Mr. Jones will
1 probably handling this and knowing which jurisdiction he comes from, the
2 expectation is that he will stand up and he will go through the counts in
3 the typical way in which we are used to without involving in --
4 MR. JONES: May I --
5 MR. WUBBEN: Your Honour.
6 MR. JONES: May I just say, Your Honour, the reason is that --
7 lest it be thought that I'm proposing to prepare in one day, the fact is
8 that we're preparing it the whole time. We have CaseMap, and I think so
9 does the Prosecution have CaseMap.
10 JUDGE AGIUS: And so should be the Prosecution.
11 MR. JONES: We're all in a position to prepare this as we go
13 JUDGE AGIUS: Okay. Yes, Mr. Wubben.
14 MR. WUBBEN: Yes, Your Honour, will you please bear me a moment
15 to have an internal --
16 JUDGE AGIUS: Yeah, yeah, of course. If you want us to leave the
17 courtroom, we will do so as well.
18 MR. WUBBEN: No, Your Honour, it will be short.
19 [Prosecution counsel confer]
20 [Trial Chamber confers]
21 [Defence counsel confer]
22 JUDGE AGIUS: Yes. I see a smile on your face, Mr. Wubben.
23 MR. WUBBEN: Thank you. And I on yours. That's shared, Your
24 Honour. Your Honour, with a view to starting indeed after a week, we can
25 agree upon that. We advise to the Trial Chamber that we might put in, as
1 you stated yourself, that we should be flexible and not fixed on the
2 date. We might put in a caveat, indeed, that whenever there is a slight
3 issue that needs some more time for preparing, that we can get back to
4 the Court and do a submission in that respect.
5 JUDGE AGIUS: All right.
6 So for the time being the idea is the following, that basing
7 myself -- or ourselves on what Mr. Wubben said, Prosecution is expected
8 to conclude its case by not later than the 31 -- Tuesday, the 31st of
9 May. The Defence will then have two days within which to make oral
10 submissions under -- under Rule 98 bis, starting from Monday, the 6th of
12 The Prosecution will make their submissions on -- also on --
13 under Rule 98 bis on the 13th of June, and likewise they will have two
14 days maximum for making those submissions.
15 There will then be a break of one day, which would enable the
16 Defence to respond, to reply. And any final submissions will be
17 concluded on that day. That would be, therefore, the 13th, 14th, 15th,
18 16th of June. 16th of June. Yes, Mr. Wubben.
19 MR. WUBBEN: Yes, Your Honour. With a view to the right to
20 reply, do we have a right to reply?
21 JUDGE AGIUS: We'll see. Usually not, but -- I mean, our duty
22 for the time being under the Rule is to hear submissions from the
23 parties. So I would interpret that to mean that since we have decided --
24 there's nothing written, but it stands to logic that the Defence goes
25 first and you respond and they have a right to reply. If there is
1 anything left which is worth mentioning, I don't see why we should put a
2 closure on you, Mr. Wubben. Please, do try to understand that this is
3 not a competition between the Trial Chamber and the parties; it's a trial
4 in which we try to cooperate with you to ensure that justice is done and
5 is also seen to be done. So that's our approach.
6 Then, this is something that we have tried to -- we have
7 discussed among ourselves. We will have business to transact the third
8 week of June, as you know. As soon as we have had business -- have
9 transacted their business, it is our intention to hand down the oral
10 decision without delay, practically immediately after. However, if as a
11 result of the business that we would be transacting during the third week
12 we feel the need to come back to you on any issue, then we will come back
13 to you on any issue on that or those issues which might need some
14 clarification if it's the case.
15 So the position is as follows. We thought it fit -- we would
16 have probably -- not probably, certainly have been in a position to
17 decide the matter before we transacted that business on the third of --
18 week of June, but it is our agreement that we would be -- we would feel
19 much more comfortable with ourselves and with our conscience, basically,
20 if we handed down our decision during -- after already the end of that
21 week. Right.
22 I think I have made myself understood. If you have any further
23 questions in that regard, please let us know. We think that -- we
24 believe that it is fit and proper that if that business is to be
25 transacted, then obviously it should precede the Rule 98 bis decision.
1 And then we will see what the situation will be at the end of the day.
2 I think I have dealt with -- let me just check on my notebook
3 whether -- I don't think I have left anything. If there are any further
4 issues that you would like to raise in this context, please do, please do
5 so. I think we have covered the whole terrain and more or less I think
6 there is agreement on the basic points.
7 MR. JONES: May I just have one moment to inquiry with my
8 colleague on one matter?
9 JUDGE AGIUS: Yeah.
10 [Defence counsel confer]
11 [Trial Chamber confers]
12 [Prosecution counsel confers]
13 JUDGE AGIUS: Yes, Mr. Jones.
14 MR. JONES: Thank you, Your Honour. It was just to mention one
15 issue. In the unlikely event, as we say, that there will be a Defence
16 case, we would need at some point to think about scheduling, obviously,
17 for that so that we can plan our witnesses. There will be -- there would
18 be a pre-Defence conference, et cetera, so it's really just to mention
19 that at some stage we would have to schedule -- schedule either a
20 pre-Defence hearing or at least give us some indication of when the
21 Defence case, if it happens, would start.
22 JUDGE AGIUS: Yes. I thank you for raising that issue, Mr.
23 Jones. Of course we don't know if and to what extent the case may
24 continue -- will continue. That's a pleasure as yet to come. But if it
25 continues, then obviously there is -- your concern is our concern. So
1 you can rest assured that we will not, as happens in domestic
2 jurisdictions, the moment the Prosecution finishes its -- my first trial
3 as a very young lawyer, age 21, I was asked by the judge then to come
4 forward and assist a client who had just been abandoned by his lawyer and
5 the judge wouldn't listen. He wanted the trial to start -- continue. He
6 gave me one hour and a half to study the case and then the trial started.
7 This was my first trial by jury. And as soon as the Prosecution case was
8 concluded, it was not even five minutes' break, you stand up. This is
9 how it is in our jurisdictions.
10 But it will not be like that here. You will have what we will
11 consider to be ample time, not necessarily will coincide with what you
12 consider to be sufficient time, but we will of course deal with that as
13 if and when we come to it, and you will have --
14 You mentioned pre-Defence conference. That is not mandatory
15 according to the Rules, it's optional, but of course we would entertain
16 such a request if it is made.
17 MR. JONES: No. First of all, I was going to say I trust that
18 Your Honour had an acquittal for your first trial, but I won't inquire.
19 But really it's for us to know whether we need to have witnesses
20 ready in July.
21 JUDGE AGIUS: I had him acquitted on the charge which was of
22 grievous bodily harm. He was finally found guilty of slight bodily harm.
23 That's it, which wouldn't have warranted trial by jury in the first
25 But let's bring this sitting to an end here.
1 MR. JONES: It was just if we needed witnesses here in July.
2 That's all we need to -- not to --
3 JUDGE AGIUS: Mr. Jones, we are fully aware that 23rd of July we
4 go on recess in any case. So if we are talking -- if we are talking
5 about the Rule 98 bis decision being given towards the end of June or at
6 the latest the very early -- earliest in July, I don't think there is a
7 point in worrying about this issue any further, at least for the time
9 MR. JONES: Right. Thank you, Your Honour.
10 JUDGE AGIUS: I think you have understood my language. All
12 MR. DI FAZIO: Yes.
13 JUDGE AGIUS: I thank you. And we will reconvene on Friday, now,
14 I take it. Friday in the morning. Please correct me. I think this
15 whole week is in the morning. In the morning, and we will start with the
16 testimony of the witness that you mentioned. Yeah, but I will -- we can
17 do it --
18 On that Friday we are going to try and do it this way like we did
19 it last time because Judge Eser needs to leave the courtroom a little bit
20 earlier. We will have one break instead of the usual two, and we will
21 finish at around about half 1.00 or something like that or -- yeah, or
22 something like that. Anyway, that's the idea. So that you schedule your
23 examination-in-chief accordingly.
24 Thanks. And we will not be sitting, of course, on the 13th as
25 you all know. It's not because of this scaramanzia, Friday the 13th, but
1 that we agreed that we need that day for deliberations. Thank you.
2 --- Whereupon the hearing adjourned at 12.27 p.m.,
3 to be reconvened on Friday, the 4th day of
4 May, 2005, at 9.00 a.m.