Tribunal Criminal Tribunal for the Former Yugoslavia

Page 280

1 Friday, 7 July 2006

2 [Pre-Trial Conference]

3 [Open session]

4 [The accused entered court]

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

6 JUDGE BONOMY: Mr. Sabbah, would you call the case, please.

7 THE REGISTRAR: Good morning, Your Honours. This is IT-05-87-PT,

8 the Prosecutor versus Milutinovic et al.

9 JUDGE BONOMY: Well, this a Pre-Trial Conference in the case of

10 the Prosecutor against Milan Milutinovic and five co-accused. The Bench

11 for the trial is now composed, as you see of myself, as Presiding Judge,

12 and Judge Chowhan and Judge Kamenova, and when the trial commences we will

13 be joined by a Reserve Judge, Judge Nosworthy.

14 May I now take the appearances for the various parties today. And

15 please give a full account of these appearances because it seems to me

16 that once that's done, then it need not be done on a regular, daily basis,

17 unless you feel the need to introduce some new personality to the Court.

18 So I'll start with the Prosecutor. And if there are personnel

19 that you expect to be here on a regular basis -- who are not here today,

20 you could perhaps mention that, Mr. Hannis.

21 MR. HANNIS: Thank you. Good morning, Your Honour. My name is

22 Tom Hannis. I'm one of the two Senior Trial Attorneys on this case. To

23 my right is Mr. Chester Stamp, who is the other Senior Trial Attorney on

24 this case. And, Judge, for the duration of the trial, most days either

25 Mr. Stamp or I will always be here. There may be some exceptions, but

Page 281

1 that's the general rule.

2 To Mr. Stamp's right is Susan Grogan, our case manager. She'll be

3 here every day, we hope.

4 Behind me the gentleman you see is Mr. Mathias Marcussen, one of

5 our Trial Attorneys. Next to him is Christina Moeller, another Trial

6 Attorney.

7 In addition, Your Honour, we have several other Trial Attorneys

8 who may be appearing occasionally for witnesses. I can give your their

9 names right now, if you like.

10 JUDGE BONOMY: It's probably better, I think, for all of us if

11 they are just appearing on certain later occasions just to tell us at the

12 time, Mr. Hannis.

13 MR. HANNIS: I will do that at that time, Your Honour. Thank you.

14 MR. ZECEVIC: Good morning, Your Honours. My name is Slodoban

15 Zecevic. I am counsel for Mr. Milan Milutinovic. In the court Mr. Eugene

16 O'Sullivan as a lead counsel will be appearing. Unfortunately, he was

17 tied up today in another case, so he will be joining us this afternoon.

18 To my left is Ruzica Jovanovic, our legal assistant, and to my

19 right is Srdjan Mujanovic, our case manager.

20 Thank you very much.

21 JUDGE BONOMY: Thank you, Mr. Zecevic.

22 Just a moment, Mr. Fila.

23 Mr. Boas.

24 [Trial Chamber and legal officer confer]

25 JUDGE BONOMY: Sorry, Mr. Fila.

Page 282

1 MR. FILA: [Interpretation] Your Honours, I am Toma Fila. I am

2 Mr. Nikola Sainovic's lead counsel.

3 To my right is my co-counsel, Attorney-at-Law, Vladimir Petrovic.

4 He will represent Mr. Sainovic together with me. And to my left is

5 Attorney-at-Law Mirko Mrkic, our legal assistant. Thank you. No one

6 else.

7 JUDGE BONOMY: Team of three?

8 MR. FILA: Team of three, yes.

9 JUDGE BONOMY: Thank you.

10 Mr. Visnjic.

11 MR. VISNJIC: [Interpretation] Good morning, Your Honours. My name

12 is Tomislav Visnjic. I am represent General Ojdanic. To my left is

13 Mr. Norman Sepenuk, and to my right is Suzana Zivkovic, our case manager.

14 Also, the Defence team will be joined at certain stages of these

15 proceedings by Mr. Peter Robinson, our legal adviser.

16 JUDGE BONOMY: Thank you.

17 MR. ALEKSIC: [Interpretation] Good morning, Your Honour, I am

18 Mr. Aleksander Aleksic, Attorney-at-Law from Belgrade. I am counsel for

19 Mr. Pavkovic. Our lead counsel, Mr. Ackerman, is absent today

20 unfortunately and will be absent throughout this first week.

21 Aleksandar Vujic, our case manager, will be joining us in due

22 course. Thank you.

23 JUDGE BONOMY: I have details of Mr. Ackerman's illness. I

24 understand the position entirely, and we will at some stage this morning

25 be discussing the trial arrangements to try and cause as little difficulty

Page 283

1 as possible for the conduct of the Defence case of Mr. Pavkovic in the

2 absence of Mr. Ackerman. Thank you.

3 Mr. Bakrac.

4 MR. BAKRAC: [Interpretation] Your Honours, good morning. I am

5 Mihajlo Bakrac, lead counsel for General Vladimir Lazarevic. I am joined

6 today by Mr. Milos Cvijic, our case manager.

7 For the time being, I am unable to say who else might be joining

8 us. Nevertheless, yesterday we heard that the issue of our co-counsel

9 would probably be resolved in the course of the next week. I will be

10 informing you in due course. Thank you.

11 JUDGE BONOMY: Thank you, Mr. Bakrac.

12 MR. LUKIC: Good morning, Your Honours. My name is Branko Lukic,

13 I am the lead counsel for General Lukic. With me today is Mr. Ivetic, my

14 co-counsel, and Mr. Ozren Ogrizovic, who is our legal assistant.

15 Occasionally we will be joined by our fourth member, Mr. Boris Zorko. So

16 that's the composition of our team for now.

17 JUDGE BONOMY: And you're fighting fit today, Mr. Lukic, are you?

18 MR. LUKIC: Yes, that's right.

19 JUDGE BONOMY: You've recovered. Thank you.

20 Well, I don't guarantee to follow the agenda which was issued to

21 you, but we'll try to follow it as far as possible, and there are a few

22 matters we can get through, I think, fairly quickly.

23 There's a number of outstanding motions. One of these is at the

24 instance of the Prosecution for admission of documentary evidence prior to

25 the stage at which any of that evidence might be referred to by witnesses.

Page 284

1 There have been intervening orders of the Trial Chamber requiring further

2 submissions. The Prosecution's further submissions have now been

3 received. There is a fairly imminent deadline, I think, for Defence

4 responses. And that motion will probably be dealt with in writing by a

5 written judgement following the receipt of these responses. I imagine,

6 however, that it will be sometime into August before that decision is

7 issued, and certainly not before the trial resumes after the recess.

8 There's reference on the agenda to a Prosecution Rule 92 bis

9 motion. That's historical, really, because the decision in that has

10 already been issued.

11 Yesterday there was a hearing in the application of -- on behalf

12 of Mr. Lukic under Rule 54 bis for a binding order against the Government

13 of the Republic of Serbia now. I expect the decision on that to be issued

14 today, and I indicated in broad terms at the end of the hearing yesterday

15 what the terms of that decision would be.

16 There's a further motion at the instance of Mr. Lukic which is

17 entitled a motion to compel Prosecution disclosure. My understanding of

18 that motion, however - which remains outstanding - is that the solution to

19 the problem was probably the release into the e-court system of the

20 documents. Now, that's largely complete, but it's only been completed I

21 think possibly in the course of this morning, but it's very recently

22 completed -- as far as the release of the Prosecution documents is

23 concerned.

24 Now, Mr. Lukic, can you tell me if that solves the problem?

25 MR. LUKIC: One of our problems is that we don't have an access to

Page 285

1 the intranet and e-court. And the other problem is that I think that I

2 don't know how would it work because I haven't seen it yet what has been

3 released, but what we received from the Prosecution is not possible to

4 follow. I think that it will be hard for them to find their own document

5 in that bunch of documents we received from them because what we opened --

6 I'm sorry, Your Honour. What we opened is a hundred documents, and then

7 we have to try to find among those hundred documents which one you need,

8 because there is no corresponding number.

9 JUDGE BONOMY: I think I am beginning to understand the problem.

10 It's taken me some time - through probably technophobia rather than

11 anything else - to try to get to grips with this problem. But I'm assured

12 that the job of linking your inquiry to the right document should be made

13 easier once the documents are downloaded, or uploaded, whichever the

14 technical term is, into the e-court library. And that has only now

15 happened. So I think what I would ask you to do is to see if it does, in

16 fact, improve the situation.

17 Now, has your e-court training still to be done, is that the

18 difficulty, or has it been done and you just haven't got the proper link

19 to the system?

20 MR. LUKIC: The training is completed, but we don't have a log-in

21 on the system yet. So maybe we should wait until tomorrow or until the

22 day -- until Monday to see whether we would be able to log-on.

23 JUDGE BONOMY: I understand that the communication on this subject

24 has not been terribly satisfactory. The Chamber's own staff have been

25 trying to get responses, I think mainly dealing with Mr. Ivetic, and have

Page 286

1 had some difficulty getting responses from him. Now, I think we ought to

2 pin down when this is going to be finally resolved. I don't want

3 something like this as a running sore through the trial. So can we invite

4 you to let the Chamber know the position by Wednesday of next week so that

5 we've still got time next week to address it if it remains a problem, and

6 you've got time at the beginning of the week to see if you can solve the

7 problem.

8 The gentleman who did the e-court training will be in court at the

9 beginning of next week, and he's accessible today also. So it would be

10 your responsibility or whoever in your team is dealing with this to make

11 contact with him, resolve the problem of access, and see if in fact this

12 does make it possible to do the job that you found difficult.

13 MR. LUKIC: Thank you, Your Honour.

14 JUDGE BONOMY: I'm not saying, by the way, that even if it doesn't

15 the motion will necessarily be successful, but it makes a difference

16 obviously to how we approach the motion, to know just how difficult the

17 access problem is.

18 MR. LUKIC: Thank you again. Thanks a lot.

19 JUDGE BONOMY: Thank you, Mr. Lukic.

20 I come now to the first of the fairly substantial issues, and that

21 is the Prosecution's proposed expert list. There are five expert

22 witnesses that no one takes exception to so far as relevance is concerned

23 or so far as qualifications are concerned, and there are five others to

24 whom objection on both these grounds is taken.

25 It's not -- it doesn't automatically follow that because no

Page 287

1 objection on these grounds is taken that the Trial Chamber will

2 necessarily admit an expert as such. And in the period immediately

3 preceding the appearance of any expert, the Trial Chamber will be giving

4 consideration, broad consideration, to the admissibility of the evidence

5 in general. I imagine if the parties are not at issue over it that it

6 will be influenced by that to a very large extent, but there will

7 nevertheless be a decision to be taken by the Chamber about admission.

8 But there are some of these -- the other -- the five to whom

9 objection is taken that we would like to address this morning. And the

10 first of these is the Witness Ingeborg Joachim.

11 Now, Mr. Hannis, is that a matter for you or someone else in the

12 team to be dealing with?

13 MR. HANNIS: Your Honour, Ms. Moeller will be addressing the issue

14 regarding experts this morning, so I'm going to change seats with her

15 because I think she can see you all better from here than from where she's

16 presently seated.

17 JUDGE BONOMY: Thank you.

18 Now, Ms. Moeller, the Trial Chamber is having difficulty

19 identifying the expert nature of this evidence. What is the actual

20 evidence that is to be given that you say is of an expert nature?

21 MS. MOELLER: Your Honour, we submit that there are three --

22 JUDGE BONOMY: Is the microphone on?

23 MS. MOELLER: It's on, yes. Can you hear me?

24 JUDGE BONOMY: All right.

25 MS. MOELLER: That there are actually three aspects this expert

Page 288

1 can testify on.

2 The first aspect which is, I think, is rather obvious from the

3 report is victim impact. The witness testifies about particular impact

4 the crime of rape has on victims, and we submit that this kind of witness

5 has regularly testified in trials before this Tribunal. And in case it

6 does come to a conviction on this crime, we think it is relevant.

7 The second aspect --

8 JUDGE BONOMY: Well, let's take that one, first of all.

9 You say you need to tell me how serious rape is, do you? You need

10 a witness to tell me how serious rape is?

11 MS. MOELLER: No, it's not about the seriousity of the particular

12 crime; it's more the particular impact this particular crime in the

13 context of the society in Kosovo has, not only on the victim herself but

14 on the social community she's living in, on her family, and we submit that

15 it's a specific situation due to the particular culture in Kosovo.

16 JUDGE BONOMY: And do you say, therefore, that if a rape doesn't

17 have that sort of impact it makes it less serious? Is that your argument?

18 MS. MOELLER: No, that is not our argument, Your Honour. We

19 just -- as this Tribunal hasn't heard, apart from the Milosevic case that

20 was interrupted, any case on Kosovo from the Kosovo side as victims. We

21 thought it would be helpful to the Trial Chamber to get some background

22 about the particular cultural context, societal context these particular

23 victims are living in, because it is different to other victims in Bosnia

24 and Herzegovina and other parts of Kosovo, due to the Kosovar culture.

25 That's why we think it could assist.

Page 289

1 JUDGE BONOMY: Could you show me the part of the report that deals

2 with that?

3 MS. MOELLER: Yes, Your Honour, if you give me a minute.

4 It is the latter part of the -- of the report -- excuse me. It

5 starts with an introduction into the general impact of rape as a crime,

6 and it gives a little history of the society, the Medica Mondiale, the

7 expert testifies for, and on part 4.2 it deals with Kosovo traditions of

8 family life, gender roles, roots and sanctions, the traditional cultural

9 view in Kosovo on rape. And this is the part I referred to regarding the

10 first relevant aspect. It's page 24 and the following.

11 JUDGE BONOMY: And what are this witness's particular

12 qualifications to deal with that aspect of culture in Kosovo?

13 MS. MOELLER: This witness has been working in the Djakovica

14 office of Medica Mondiale from 1998 onwards and has had direct dealings

15 with traumatised rape victims in this area, so she has direct experience

16 in the country.

17 JUDGE BONOMY: See, I will be surprised - I may yet be this

18 morning - if any counsel for the Defence stands up and says rape in Kosovo

19 is not serious. You actually are submitting that this Court would be

20 incapable without expert guidance of adequately reflecting the gravity of

21 rape on a widespread basis, if that is proved.

22 MS. MOELLER: Your Honour, as I tried to say before, we think that

23 the particular cultural aspects that apply to the Kosovo society are

24 outside the general knowledge; and for this reason, this expertise may

25 assist the Court in getting some insight into that particular aspect.

Page 290

1 JUDGE BONOMY: Well, does that make it more serious? That's what

2 I want to know. I mean, the only relevance can be to sentencing on this

3 particular point. Is it more serious because of that or what is it?

4 MS. MOELLER: It may be considered more serious if the impact, the

5 overall impact, is not only concerning the witness, but also very strongly

6 the family and the society.

7 JUDGE BONOMY: Now, what's the second aspect?

8 MS. MOELLER: The second aspect, Your Honour, is specifically

9 relating to our rape victims/witnesses, and I would like to give you a

10 concrete example. However, to do so I would ask you to go into private

11 session for a very short while, because this witness I would like to refer

12 to has testified in closed session before and we will apply to have her

13 testify in closed session in this case as well.

14 JUDGE BONOMY: Is the witness referred to in the report?

15 MS. MOELLER: No. She is not referred to in the report, but her

16 situation illustrates why the report may be helpful.

17 [Trial Chamber confers]

18 JUDGE BONOMY: We will generally be very reluctant to go into

19 private session, except obviously for the situation you've just

20 highlighted; that's a clear example when we would. But I don't see why we

21 need to for the purpose of illustration in these circumstances. Try and

22 illustrate it in general terms without reference to a particular witness.

23 MS. MOELLER: I will not refer to her pseudonym then.

24 This is a witness who gave two statements to the Tribunal. The

25 first statement she gave in 1999, and the second statement she gave in

Page 291

1 2002, so three years later. Now, in the first statement she did not

2 mention that she was a rape victim. She testified about the incident in

3 great detail, but she never mentioned that in the course of this incident

4 she was also raped. Now, in 2002 she gave another statement and then she

5 gave a very detailed account about what happened to her, namely that she

6 was gang-raped several times during this incident.

7 Now, in a trial where she testified formerly, the Milosevic trial,

8 this witness was cross-examined savagely on the fact that she never

9 mentioned the rape in her first statement. And we submit that the report

10 of the expert Joachim also refers to the particular difficulty for women

11 in Kosovo to actually tell their stories and to find the inner strength to

12 come out to that, because on top of the particular problems that are

13 related with these crimes, there is the societal context that often enough

14 these women can't even have their family or their husband know about what

15 happened to them because then they would be sent away from their families.

16 And we submit that in this regard also the expert report is helpful and

17 may help the Chamber to assess the reliability of the testimony of such

18 witnesses.

19 JUDGE BONOMY: And can you direct me to a particular passage that

20 deals with that issue?

21 MS. MOELLER: Yes, Your Honour. It is page 39 of the report,

22 point 6.5, and it is titled: Reasons for the survivors' difficulties to

23 talk about being raped. It deals with the particular shame and the fear

24 of consequences and aspects like that.

25 JUDGE BONOMY: And the third aspect?

Page 292

1 MS. MOELLER: The third aspect is that, as Your Honour may have

2 seen from our 65 ter witness list, we have about nine witnesses who

3 testified -- who will testify about rape crimes. And in the indictment we

4 charge rape as part of the persecution in the context of a widespread and

5 systematic attack. And we think that the report also may serve, to a

6 limited extent, in showing from the experience of the Medica Mondiale

7 Association, and in particular the Djakovica office, that the -- the fact

8 that we call less witnesses on rape does not mean that these were only

9 single events that happened. And the report -- the expert refers to a

10 number of -- of victims that were treated in the centre and about surveys

11 undertaken by the centre that demonstrate that these crimes occurred on a

12 wide basis.

13 JUDGE BONOMY: Now, the examples that are referred to in this

14 report, are they confined to Djakovica or do they cover other parts of

15 Kosovo?

16 MS. MOELLER: No, they are confined to Djakovica because this is

17 where the office of Medica Mondiale is stationed. And we ask the witness

18 to confine her statement to her direct knowledge, the facts she directly

19 experienced herself.

20 JUDGE BONOMY: Do any of the nine witnesses who will give

21 evidence -- or were any of them raped in the area of Djakovica?

22 MS. MOELLER: Your Honour, we would need to check that.

23 JUDGE BONOMY: One of the difficulties about this aspect that you

24 may wish to address is that the report suggests that the objective of

25 Medica Mondiale is to support these women, to give them help. It would be

Page 293

1 contrary to the ethos of the organisation, I think, to challenge the

2 accusation of rape. And what you would be inviting the Tribunal to do on

3 the basis of that evidence would be accept that, I think, in one example

4 there were 45 rapes suggested in a period in Djakovica, you would be

5 asking us to accept that.

6 Now, if an investigating magistrate had investigated 45 cases of

7 rape and presented a report in which it was plain that the allegations had

8 been challenged, then that would be one thing and a situation where you

9 might see hearsay evidence being admitted, but where the objective of the

10 person compiling the report is to encourage complaints of rape, then you

11 have to ask how this evidence could be adequately challenged by the

12 Defence.

13 MS. MOELLER: Yes, Your Honour, we take that point. And as I, I

14 think, said, it is a limited weight we would attach, ourselves, to this

15 part of the report clearly. We do not ask the Trial Chamber to make

16 findings on a certain number of rapes that occurred on the basis of this

17 report. It may at some -- to some degree, however, I think bolster the

18 evidence of live witnesses who experienced rape and in different

19 municipalities. But we are not asking that to be evaluated as direct

20 evidence of rapes that were committed.

21 JUDGE BONOMY: I was certainly unable to find any witness listed

22 who had been raped allegedly in Djakovica, but perhaps your new list that

23 came in has a different witness who may fall into that category.

24 But I would find it difficult -- speaking for myself, I find it

25 difficult to reach a conclusion about the widespread nature of rape in

Page 294

1 Djakovica without an eye-witness -- any eye-witness at all coming to speak

2 to having been raped.

3 MS. MOELLER: We take this point, Your Honour.

4 JUDGE BONOMY: All right. Thank you, Ms. Moeller.

5 [Trial Chamber confers]

6 JUDGE BONOMY: Now, is there one of the Defence counsel who would

7 like to take the lead on this issue? I mean, Mr. Zecevic, you have

8 obviously priority, but it may be one of the others is more in a better

9 position to deal with it.

10 MR. ZECEVIC: [Interpretation] Your Honour, I can speak about this.

11 I can give you my own opinion.

12 In actual fact, it is the position of this Defence - and I assume

13 of the other Defence teams, too - that it is truly unacceptable to call

14 this witness as an expert witness. In actual fact, no one is challenging

15 the fact that rape is a serious crime. Rape is a serious crime anywhere

16 in the world, from the most developed countries in the world to

17 traditional societies. The consequences of that crime are substantially

18 identical anywhere on this planet.

19 At any rate, the crime of rape basically affects the victim, her

20 family, and her immediate surroundings. In that respect, the situation in

21 Kosovo is no different from the situation anywhere else.

22 Also, in relation to the other argument, in relation to the other

23 argument presented by my learned friend, the problem that appears in

24 literature -- well, there is a great deal of literature about this. The

25 problem of rape victims in general to speak about rape, to report it, and

Page 295

1 so on and so forth, so this truly does not only pertain or specifically

2 pertain to Kosovo, as compared to any other place where such a crime would

3 occur.

4 It is a fact that in our view the witness does not have sufficient

5 expertise for this type of expert testimony, at least the way it's been

6 explained. In our view, it would be more reminiscent of a factual witness

7 actually if she was involved in that situation in Djakovica. She could

8 not really be an expert witness, because her knowledge on the basis of

9 what she did in Djakovica does not provide sufficient argumentation for

10 her ability to appear as an expert before this Court.

11 Thank you.

12 JUDGE BONOMY: Thank you, Mr. Zecevic.

13 Mr. Fila.

14 MR. FILA: [Interpretation] Your Honour, I have a question to raise

15 that concerns me in this situation as far as Kosovo is concerned.

16 I support this assertion and I presented that in writing. There

17 is no difference between rape in Kosovo and Bosnia and so on and so forth,

18 religiously and so on and so forth.

19 But what is Kosovar? What does that actually mean? Kosovo is a

20 geographical term. Kosovo is the term in Albanian, and Serbs say Kosovo

21 and Metohija. Albanians, Roma, not to call them gypsies, and Albanians

22 and Serbs. I'm putting my own ethnic group at the very end. They all

23 live there. When you say that there is a Kosovar sensitivity, are you

24 referring to the entire population of Kosovo or only Albanian women? If

25 you are claiming that it is only Albanian women who are sensitive to rape,

Page 296

1 I will never agree with that, because that community has been in existence

2 for hundreds of years. What happened happened. But they all live there.

3 Are you going to present a racial or religious theory to me that women of

4 a particular faith find it more difficult to be raped than others? This

5 is a big issue that this expert can lead us to if you put the question

6 that way.

7 JUDGE BONOMY: Mr. Fila, that is a misrepresentation, with all due

8 respect, of what has been said. The submission was that -- the submission

9 was that are cultural impacts in the community from which the women who

10 will personally give evidence in this case come and that the attitude of

11 their families can be quite distinct from the attitude of families from a

12 different culture. It was not presented as a religious -- a purely

13 religious issue.

14 However, the question that you raise I am happy to put in its

15 proper form to Ms. Moeller, which is: Are you submitting that this is a

16 phenomenon that applies to Albanian families, in other words confining

17 your submission to them, or is it broader than that in relation to Kosovo

18 as a whole?

19 MS. MOELLER: Your Honour, we are confining this to the Kosovo

20 Albanian women because of the specific traditions in the Kosovo Albanian

21 community and the particular role females play in the Kosovo Albanian

22 families.

23 JUDGE BONOMY: Does that answer the question, Mr. Fila?

24 MR. FILA: [Interpretation] Yes. I just expressed my concern, you

25 see. When you are using a geographical term and when there are several

Page 297

1 different peoples living there and there are different cultures -- but so

2 I didn't understand. At least now I understand. Of course I disagree.

3 But at least I understand now. It's important to understand.

4 In the previous cases tried here, Omarska, and so on and so forth,

5 I heard the same thing, that it is particularly difficult for Muslim women

6 from Bosnia and Herzegovina as opposed to other women, but such experts

7 were not called. Also, differences in terms of statements. All of us are

8 very experienced and we have heard thousands of witnesses change their

9 statements, but it is up to the Court to say whether the witness is

10 telling the truth the first time or the second time.

11 And the third thing that affects me the most, and that is why I

12 asked this to be placed on the agenda -- rather, the Defence team. And

13 that is the evaluation of hearsay evidence. I have the impression that

14 the Prosecution has been resorting to this throughout. They are going to

15 bring in someone from Djakovica now and say that this person talked to

16 some unknown people and heard such and such a thing. Bring these people,

17 call these people, call an expert who is going to say that your indictment

18 is right and then we won't waste any time and then get another witness for

19 sentencing purposes. Maybe you have an expert of that type, too, and then

20 fine.

21 I am about to retire, so I guess you're going to make me retire

22 earlier, so you'll just be doing me a favour. Thank you.

23 JUDGE BONOMY: Now, I have to acknowledge, I'm not unused to

24 histrionics in court, but, Mr. Fila, I do think the Prosecution's

25 submissions deserve treatment with a little more respect than that

Page 298

1 particular submission has been treated this morning. I appreciate that

2 you have serious points to make on this, but some of these, I think --

3 some of your submissions were based on, I think, a disingenuous

4 misunderstanding of the Prosecution's submission.

5 I would not like this trial to start off on a footing of

6 incongeniality among the parties involved. If there is due cause for

7 concern about the behaviour of any counsel, then I will be happy to

8 address that should it arise, but I think that that was a rather excessive

9 reaction to the submission made. While there is a great deal of substance

10 in much of what you say, please don't devalue it by the histrionics.

11 MR. FILA: [Interpretation] I do apologise immediately to my

12 colleagues. I have known them for a long time, and I have a great deal of

13 respect for them. I apologise to you also. I just wanted to speak in

14 this jocular fashion. Perhaps it went a bit too far. I'm sorry.

15 JUDGE BONOMY: Thank you very much, Mr. Fila.

16 [Trial Chamber confers]

17 JUDGE BONOMY: Now, are there any other submissions to be made on

18 this point?

19 Mr. Bakrac, you were halfway to your feet before Mr. Fila started.

20 Is there anything you want to add?

21 MR. BAKRAC: [Interpretation] Yes, Your Honour. I wish to say

22 something about the other aspect that the Prosecution referred to in

23 connection with this witness, and my learned friend Mr. Fila raised this

24 issue, in part.

25 What concerned me was the following. If I understood my learned

Page 299

1 friends of the Prosecution correctly, the expert should, with regard to

2 the second aspect, explain the differences in witness statements. I think

3 that this is a key issue as far as the Defence is concerned. So if at an

4 expert general level someone were to claim that in view of the milieu in

5 Kosovo rape is not easily reported, then if not all -- in all cases, then

6 in a majority cases we would have to have subsequent reporting.

7 It seems to me that in the material that we have in the

8 Prosecution the situation is the exact reverse. Many reports came in

9 straight away. We see that this expert witness was in Djakovica. And in

10 very few cases were the incidents reported only subsequently. So if it's

11 that kind of a community, if it's that kind of general climate as far as

12 rape is concerned, then the situation would have to be reversed. So

13 indeed the expert witness cannot explain to us a very, very important

14 issue, and that is the differences involved in these statements.

15 Thank you.

16 JUDGE BONOMY: Any other submission?

17 [Trial Chamber confers]

18 JUDGE BONOMY: Well, the Trial Chamber are agreed that certainly

19 in relation to the second issue raised by Ms. Moeller it would be

20 appropriate for expert evidence to be led. The issue of victim impact is

21 probably also one on which it would be appropriate for evidence to be led,

22 but we are at one in telling the Prosecution that it seems to this Trial

23 Chamber unnecessary to lead that sort of evidence, that no one on the

24 Defence side has - as I expected - suggested that rape in any community,

25 be it in Kosovo or anywhere else, is a very serious offence.

Page 300

1 Where this is much less certainty in the minds of the Trial

2 Chamber is in relation to the third issue, because there is the

3 possibility there of the introduction by the backdoor of hearsay evidence

4 from people with no remit to challenge that evidence and then a submission

5 following upon it of widespread rape in an area in circumstances where

6 there is no direct evidence at all before the Chamber of rape in that

7 area. Now, I suppose that's an issue that can only be finally determined

8 once we get to the point of looking at the witnesses' evidence in the

9 light of what's gone before in the trial.

10 So what we can do today is simply indicate to the Prosecution that

11 on the face of it the Trial Chamber finds substance in at least part of

12 this report. We find that the witness is suitably qualified, through

13 experience and also through her professional training, to give expert

14 evidence. But the extent to which this report will be admitted and she

15 will be allowed to give evidence will be determined in the period

16 immediately before she gives evidence.

17 Now, this may be a suitable opportunity to outline a process to be

18 followed in dealing with experts. As I indicated earlier, in relation to

19 each expert that the Trial Chamber will want to have a look at the report

20 and the evidence that's intended to be led from the witness some time in

21 advance of that witness appearing. So it would, I think, be appropriate

22 for the Prosecution to raise it as an issue ten days or so or perhaps --

23 sufficient number of days before the witness comes to the Tribunal, I

24 think, for you to change the arrangements if necessary, to raise the

25 question of the extent to which the evidence will be admitted. It will be

Page 301

1 obvious to us from your witness lists roughly when the witness is

2 proposed, but it will be for you to identify it more particularly as the

3 witness is about to give evidence.

4 Now, the other expert issue is the -- well, there are two in fact.

5 There is a submission from a number of Defence counsel that -- in relation

6 to the witness Phillip Coo. There is a submission that it is

7 inappropriate to admit his evidence because he is and has been for some

8 time an investigator, or at least an employee of the Office of the

9 Prosecutor. There is some -- I think maybe one case in which this issue

10 has been addressed in the Tribunal before, and we would welcome some

11 guidance on whether that is a factor of significance in excluding a person

12 as an expert.

13 Ms. Moeller?

14 MS. MOELLER: Yes, Your Honour.

15 Indeed this very issue of employees of the Prosecution office

16 testifying as experts in court has been addressed by several Trial

17 Chambers already. In the Galic decision regarding experts Ewa Tabeau and

18 Richard Philipps, it's a decision from 3 July 2002. The Trial Chamber

19 held that the pure fact that these experts are employed by one of the

20 parties does not exclude them as testifying as experts.

21 JUDGE BONOMY: Yeah, but when you say "employed," were they

22 actually employees of the Office of the Prosecutor or were they simply

23 engaged to carry out certain research and produce a report?

24 MS. MOELLER: No, they were employees of the Tribunal --

25 JUDGE BONOMY: Oh, right.

Page 302

1 MS. MOELLER: -- working in the Office of the Prosecutor.

2 Then there is another decision in the Brdjanin case on another

3 military expert named Ewan Brown. It's a decision dated 3 June 2003. And

4 the Trial Chamber there held that the question that an expert is employed

5 by one of the parties or paid by one of the parties is a matter of weight,

6 if at all, but not of admissibility of an expert report.

7 Further on, in the Milosevic case, as we submitted in our

8 submissions on Mr. Coo dated 28 June 2006, in paragraphs 3 and 20, Mr. Coo

9 testified already as expert in the Milosevic trial and the very same

10 regards and concerns were raised by the amici in this trial.

11 A hearing was held on this matter with the Trial Chamber on

12 9 September 2002, and, if you like the transcript pages, it's starting

13 at 9946. And this discussion -- in particular the fact that Mr. Coo was

14 already an employee in the Office of the Prosecutor for several years

15 working on Kosovo-related matters was discussed, and the Trial Chamber

16 there accepted the Prosecution's arguments that, if at all, this would be

17 a matter that goes to the weight of the evidence but it should not exclude

18 admission of the expert report.

19 JUDGE BONOMY: Is the Galic decision an appeal decision or a Trial

20 Chamber decision?

21 MS. MOELLER: No, it's a Trial Chamber decision.

22 JUDGE BONOMY: The matter didn't arise on appeal?

23 MS. MOELLER: Excuse me?

24 JUDGE BONOMY: Did the matter not arise on appeal.

25 MS. MOELLER: Indeed the Defence in Galic requested certification

Page 303

1 for appeal, but it was denied by the Trial Chamber in the Galic case at

2 that time. So this matter has not yet risen.

3 JUDGE CHOWHAN: Excuse me, I am of the view that the touchstone

4 will be whether the expert witness could be suborned and if the expert

5 witness, while he is within the employment of the Prosecution, could be

6 suborned into writing a report, or into this -- then of course it has no

7 weight, and it has a prejudice, a bias. But in case we can disassociate

8 the two factors, one is the employment, and the other is the report that

9 we have seen elsewhere, then that may be helpful. Could you kindly dilate

10 on that?

11 MS. MOELLER: Yes, Your Honour.

12 In fact, Mr. Coo has different functions in the Office of the

13 Prosecutor. He is the head of the military analysis section, and as in

14 this regard the superior of all military analysts in the OTP. At the same

15 time, he is serving as expert on particular matters. And in this regard,

16 I think it is relevant to underline again that Mr. Coo has also served as

17 an expert in the Limaj trial, which was a trial against KLA accused, which

18 dealt with the other side of the Kosovo conflict.

19 So he clearly is specialised in the area of Kosovo and in military

20 aspects relating to the particular conflict in 1998, 1999. But he is

21 independent in that he gives his specific expertise in different cases and

22 regarding different parties.

23 JUDGE BONOMY: Which Defence counsel would wish to address this

24 issue?

25 Mr. Petrovic.

Page 304

1 MR. PETROVIC: [Interpretation] Your Honour, by your leave, just a

2 few questions that I'd like to raise in this regard.

3 The Sainovic Defence team wrote about this on the 5th of October,

4 2005, and we dealt with a great many of these issues. I would just like

5 to refer to what the Prosecutor said now and a few things that they wrote

6 about earlier.

7 What are the problems with Coo? Coo is someone who is employed in

8 the OTP. He is directly interested in having the Prosecution case come

9 through. Therefore, on the basis of that fact, he loses every necessary

10 degree of impartiality and objectivity. He is an interested party here,

11 and as such he cannot assess persons and events, as an expert should.

12 In addition to that, Coo has another role here. Coo took active

13 part in different stages of these proceedings, not only someone who wrote

14 a report, the first, second, third, whatever version, but somebody who

15 also took part in the generation of the evidence that is being presented.

16 That is what makes this situation different from others. So we're not

17 only saying that someone appeared as an officer of the Prosecution. He

18 conducted numerous interviews with witnesses, suspects, potential

19 witnesses. He took active part in this with his questions, positions. He

20 affected the course of these statements. He affected what documents would

21 be presented, also what knowledge and facts would be reached in these

22 interviews. Through this activity, he overcame the role of an expert. He

23 took active part in the creation of evidence. In some stage of these

24 proceedings, perhaps he will have to appear as a fact witness to, for

25 example, what one of the accused said to him, what one of the witnesses

Page 305

1 said to him, and so on and so forth.

2 How does one reconcile then his role of expert and his predictable

3 role of witness? What happens if an accused person says that he did not

4 give him a certain document? This is hypothetical. But what happens if

5 he says that he gave a false document? How are we going to resolve that

6 if the man appears here in potentially two different roles that are

7 mutually antagonistic?

8 Your Honours, that is the reason why -- well, I don't want to

9 dwell on it any longer. I don't want to use up more time, and I don't

10 want to mention once again all the reasons that we've already presented.

11 That is why this man should not appear here as an expert or a potential

12 witness.

13 Now, the OTP, I think, can opt for one of those two roles. By no

14 means can one allow the situation, whereas -- whereby he would appear in

15 both roles, and this is quite possible under the circumstances.

16 Thank you, Your Honour.

17 JUDGE BONOMY: Can I ask you, Mr. Petrovic, if you've any idea how

18 many of the witnesses who will appear here he was involved with?

19 MR. PETROVIC: [Interpretation] Your Honour, the number is quite

20 substantial. I can't tell you now. I can tell you on Monday. But I can

21 tell you in relation to the accused. At least two of the accused were

22 involved -- he was involved in their statements. This went on for days,

23 and he affected the very course of these statements by his own role.

24 As for the number of witnesses, I don't have this at my

25 finger-tips but I'm sure I can obtain this information very quickly. The

Page 306

1 information is available. I believe my learned friends know. There is

2 more than one such witness. There is probably more than five, but I do

3 not wish to speculate, and I ask to be given a chance to provide this

4 information in one of our future hearings.

5 JUDGE CHOWHAN: As a matter of fact, every Prosecution witness is

6 an interested witness. Again, the touchstone will be: Why is he

7 antagonist in prosecuting the persons accused here? If you would kindly

8 dilate on that, the matter will be absolutely clear, because if somebody

9 is interested, all right, but then somebody has a reason to prosecute

10 somebody with an antagonism and animus which he develops for him, well,

11 then the value of the evidence has to be just nothing.

12 Could you kindly tell us on that.

13 MR. PETROVIC: [Interpretation] Your Honour, I do not believe that

14 we can talk about antagonism here. I'm talking about his professional

15 ambition for his team, a team which he's part of, to succeed in whatever

16 they're doing, which leads to bias on his part. He wants to be

17 successful, which is only natural. He was a military investigator and now

18 he's a member of an investigating team. As someone who's an OTP employee,

19 he wants to succeed. He wants to be the boss of an investigating team.

20 As a neutral expert to appear before this Court, he should be rid

21 of that sort of ambition. He is supposed to help you reach certain

22 conclusions, and there should be no bias involved. At least that's my

23 understanding of the situation.

24 I don't think it is possible anywhere in the world to have

25 evidence relating to that sort of expert analysis presented in such a way.

Page 307

1 JUDGE BONOMY: Any other submissions for the Defence?

2 Mr. Visnjic.

3 MR. VISNJIC: [Interpretation] Your Honours, I fully agree with

4 what my learned friend, Mr. Petrovic, has said.

5 I would like to provide another example of this. There was a

6 trial at this Tribunal where there was an expert report being used by a

7 military expert who was also a member of the OTP. And there was a

8 document that was an exculpatory document that was simply brushed aside

9 and not analysed in that particular report. At a later stage, it became

10 obvious that the Prosecution had been in the possession of this document

11 all along, and a debate followed.

12 The expert, when prompted, told us this briefly. When deciding

13 whether to use this document in his report, in the OTP, within their own

14 system at some level, there was a meeting at which a trial attorney

15 decided simply whether this document should or should not be used. It was

16 obvious in this case that although the expert had knowledge of this

17 document, he received orders directly from one of the trial attorneys on

18 the use of this document.

19 I just wish to give you this as an example to show how dependent

20 these experts are by their superiors within the OTP who, as we know, are

21 an interested party and wish to succeed in their case.

22 Thank you.

23 JUDGE BONOMY: Thank you, Mr. Visnjic.

24 MR. HANNIS: Your Honour, I would like to --

25 JUDGE BONOMY: Well, I'm -- I think Mr. Aleksic wants to say

Page 308

1 something also, Mr. Hannis, unless -- or do you want to interrupt?

2 MR. HANNIS: I wanted to make a particular point about

3 Mr. Visnjic's comments.

4 JUDGE BONOMY: Could we not deal with them altogether? I'm going

5 to give you an opportunity to respond.

6 MR. HANNIS: I just had a particular concern about the nature of

7 that one.

8 JUDGE BONOMY: All right, on you go.

9 MR. HANNIS: In that it went to unnamed lawyers and an unnamed

10 expert in our office. It has nothing to do with Mr. Coo or any lawyers on

11 this team as far as I'm concerned, and I'm bothered by that. I just

12 wanted to express that now.

13 JUDGE BONOMY: Well, I think you can take it that we're alert to

14 that weakness of it. But you'll have an opportunity to respond in due

15 course to all these matters.

16 Mr. Visnjic, do you want to say any more?

17 MR. VISNJIC: [Interpretation] I wish to confirm what Mr. Hannis

18 just said. I do not have that team in mind. If necessary, however, I can

19 forward to the Trial Chamber transcripts from the relevant case and then

20 you can see for yourselves.

21 JUDGE BONOMY: How quickly can you do that?

22 MR. VISNJIC: [Interpretation] In a day. I can give them to you on

23 Monday.

24 JUDGE BONOMY: Not today?

25 MR. VISNJIC: [Interpretation] I'm not certain.

Page 309

1 JUDGE BONOMY: Thank you.

2 Mr. Aleksic.

3 MR. ALEKSIC: [Interpretation] Your Honour, I fully agree with what

4 my learned friends Mr. Visnjic and Mr. Petrovic have said.

5 I would just like to add one thing in relation to OTP witness

6 General Vasiljevic. He was interviewed. We have 18 CDs with his

7 interview, about 60 hours. At least half f that time Mr. Coo was there

8 while General Vasiljevic was interviewed.

9 I just wanted to say that. Thank you.

10 JUDGE BONOMY: Thank you.

11 You, Mr. Ivetic.

12 THE INTERPRETER: Microphone for counsel, please.

13 MR. IVETIC: I would just like to wrap up and clarify a few

14 points, particularly in light of the comments made by Judge Chowhan.

15 I believe that, if, as I understood Ms. Moeller, she was trying to

16 indicate that the role that Mr. Coo plays in the -- during his employment

17 in the OTP is different from the subject matter of his proffered

18 testimony, but I submit that if he is employed on a permanent or

19 near-permanent basis as the head of the military analysis office of the

20 Office of the Prosecutor, and if he is being proffered as a military

21 analyst expert in this case, I submit he has a very strong incentive, if

22 not biased, financial or otherwise, to keep his employment by tendering

23 views that are favourable with the OTP's theory of the case and the

24 allegations that they have in the indictment. And indeed I submit it

25 would seem illogical for someone who were to express views contrary to the

Page 310

1 OTP's theory of the case to remain employed on a near-permanent basis in

2 that office on that same topic.

3 On another point -- so if that is what Ms. Moeller, my learned

4 colleague, was implying, that he doesn't have that bias, I submit that he

5 does, and it is a very serious bias.

6 Secondly, the Prosecution offered other cases where -- where OTP

7 employees have been accepted as qualified witnesses, but I submit one has

8 to look at whether the witness has prior significant experience in the

9 area that he is testifying in or being proffered to testify in. The

10 witnesses mentioned, for instance, Tabeau, who is a demographer, had

11 significant prior experience doing demographic work. I do not believe

12 that Mr. Coo, based upon the information that has been provided to us, has

13 had any significant prior experience, that is prior to coming to the OTP,

14 in terms of studying or analysing the Serbian Ministry of the Internal

15 Affairs, for instance, or the army of Yugoslavia, or the various

16 structures within Yugoslavia and the Republic of Serbia upon which he is

17 proffering his testimony.

18 So I would submit it appears in Mr. Coo's case his expertise only

19 arises through his role as an OTP employee and is directly linked to that

20 position, and therefore we would strongly object to his use as an expert

21 witness on that basis.

22 Thank you.

23 JUDGE BONOMY: Ms. Moeller, I think on this occasion we do need to

24 hear some more, particularly about the various things that have been said

25 about the role played by Mr. Coo in investigations.

Page 311

1 MS. MOELLER: Certainly, Your Honour.

2 As we stated in our written submissions, it is correct that

3 Mr. Coo assisted in interviews with suspects, witnesses, and some of the

4 accused. It is important to know that of course he did assist the

5 investigator or the lawyer or both of them at the same time with the

6 interview. It was not Mr. Coo himself interviewing the witness on his own

7 account. That's just as a clarification of the practice.

8 Now, this practice is indeed a common practice in the Office of

9 the Prosecutor that is done with regard to all military experts. In other

10 cases this aspect has been raised as well, and just recently in the Mrksic

11 trial I think Mr. Reynaud Theunens was asked in cross-examination also

12 about his participation in witness and accused interviews. So far this

13 particular point has never brought a Trial Chamber to exclude the report

14 of a military expert.

15 The Prosecution does of course not object to this issue being

16 properly discussed with the witness in cross-examination, and Mr. Coo can,

17 himself, best clarify, we think, in which interviews he took place -- he

18 took part, excuse me, and which role he played therein. We again argue

19 this is really a matter of weight to be attached to his report and then of

20 admissibility, as the Defence appears to argue.

21 Now, the other arguments raised by the Defence regarding his being

22 dependent and therefore bias because he is employed by the Prosecutor's

23 office. We think that lacks merit. We argue that because he is employed

24 on a fixed-term basis by the Tribunal, he's actually more independent than

25 an expert who would be hired on an ad hoc basically only. Mr. Phil is not

Page 312

1 paid -- he doesn't get a fee on the Prosecution's winning or losing a

2 case. This plays no role in his work, and it has not played a role in any

3 of the former performances he has done in other cases. And indeed in both

4 in Milosevic and in Limaj his reports have been admitted, he was

5 cross-examined, and all relevant aspects were discussed with him and upon

6 that his report was admitted into evidence.

7 JUDGE BONOMY: What is the fixed term?

8 MS. MOELLER: Fixed term is an annual -- or one-year or two-year

9 contracts, as I think all employees have here in the Tribunal.

10 If I may add one argument regarding the allegation by the Defence

11 that Mr. Coo influences -- or rather, that we influence Mr. Coo on his

12 report and we order him to write the report in a certain matter; it's

13 rather the other way around. Mr. Coo advises us, and we shape our case

14 theory according to his advice. He is the expert, and he is the person

15 who knows best the military and police aspects in this case, and of course

16 there is no undue influence of any Trial Attorney or Senior Trial Attorney

17 to make him write a report in a matter. We really reject this argument

18 completely.

19 [Prosecution counsel confer]

20 MS. MOELLER: Can I assist any further, Your Honour?

21 JUDGE BONOMY: Well, you haven't addressed what might be the best

22 point of all, that he is -- bearing in mind his background, the role he

23 plays and his general self-respect, he will be professionally ambitious

24 for his team to succeed. Is that not the best argument of all that's been

25 advanced by the Defence, that he is part of a team and he's being

Page 313

1 proffered as an independent expert?

2 MS. MOELLER: Your Honour, as I -- as I thought I had addressed

3 earlier, the military analysis section is a separate section within the

4 Office of the Prosecutor. And Mr. Coo is not a member of this

5 investigation team or a member of any other investigation team. He is

6 assisting different teams within the Office of the Prosecution with

7 particular matters relating to military and police structures, now

8 specifically for Kosovo.

9 As I raised, he assisted the Limaj team with regard to military

10 and police aspects in the case against KLA accused, and he assisted in the

11 Milosevic trial regarding aspects of the Serbian forces. And now he is

12 assisting in the Milutinovic trial regarding these aspects.

13 Likewise, other military analysts, like Ewan Brown, have assisted

14 in various cases, including Brdjanin or Stakic; or Mr. Butler has assisted

15 in Krstic. So officers of this section are assisting different teams, but

16 I wouldn't consider them teams of investigation -- team members of

17 investigation teams that are dependent on these investigation teams

18 succeeding.

19 JUDGE CHOWHAN: What was he doing before coming here, before

20 joining you?

21 MS. MOELLER: Mr. Coo was an officer in the Canadian army, an

22 intelligence officer, and we submitted in our written submissions on

23 28 June 2006, on page 2, paragraph 7 and the following some details on his

24 training and his education. He received the generic training that

25 military officers receive in the Canadian army, including training on

Page 314

1 command structures, et cetera. And he also actively participated in

2 exercises and was member or corps member of a command structure at some

3 point in his career.

4 JUDGE CHOWHAN: Besides him you have no other expert --

5 MS. MOELLER: Excuse me.

6 JUDGE CHOWHAN: -- of the same type. Do you have any other person

7 as an alternate?

8 MS. MOELLER: Excuse me one moment.

9 [Prosecution counsel confer]

10 MS. MOELLER: Your Honour, we have one other expert,

11 Mr. De La Billiere, who is on the witness list, but he only talks about

12 very generic matters regarding command structures, and Mr. Coo's report is

13 of a totally different nature.

14 If you look at the report, it contains hundreds of footnotes, and

15 nearly each sentence in this report is footnoted with a document that was

16 obtained either by request for assistance directly from Serbia and

17 Montenegro, or by some of the accused who gave it to us, or by Defence

18 witnesses who brought it forward in the Defence case of Mr. Milosevic's

19 trial. And in this regard, his report is of a unique nature and we could

20 not replace him with Mr. De La Billiere.

21 JUDGE BONOMY: Are you saying that the interviews that he has

22 participated in have all been of military personnel?

23 MS. MOELLER: Military or police personnel.

24 JUDGE BONOMY: And does that also include the interviews he

25 participated in with the accused?

Page 315

1 MS. MOELLER: Yes. Maybe one additional aspect to point out is

2 that he -- Mr. Coo in his report does not use any evidence obtained in

3 these interviews, either of the accused or of other witnesses, to draw his

4 conclusions or to base his theory upon. He only relies on documents that

5 were gained in the way that I just described to you. There are no

6 references of him to any of these interviews or statements.

7 JUDGE BONOMY: Why was he there?

8 MS. MOELLER: He was there to assist the interviewing Prosecutor

9 or the interviewing investigator with his expertise because these command

10 structures are very complex, and military documents, on the face of

11 themselves, are not easily digestible. It's not general knowledge I think

12 the ordinary lawyer or investigator would have, and he assisted on these

13 particular aspects.

14 We also think this is the strength of his report, that he may

15 assist the Trial Chamber in understanding and finding an interpretation of

16 the -- of the documents we will present at some point in this trial.

17 JUDGE BONOMY: But his purpose at the interview is to give

18 guidance to the investigator on how to conduct the interview, from what

19 you're saying?

20 MS. MOELLER: No. He's not -- he's not giving guidance, but he is

21 helping with particular aspects in regard to military issues --

22 JUDGE BONOMY: Give me an example then. I'm having difficulty

23 understanding what it is, unless he's helping the investigator formulate

24 questions.

25 MS. MOELLER: Well, an example would be, for instance, that a VJ

Page 316

1 officer is interviewed, and Mr. Coo from his report and sources has the

2 best knowledge of very minute details of which brigades may have been in

3 which area at certain points, and he would assist with such details, for

4 instance.

5 JUDGE BONOMY: Yeah, but assist in what way? Would he prompt the

6 investigator to ask the right questions? I mean, what else is he doing

7 there?

8 MS. MOELLER: Well, he himself did ask questions in interviews,

9 too, on these particular aspects.

10 JUDGE BONOMY: And you're not seriously telling me the whole point

11 of that is to go away and ignore what the answers were?

12 MS. MOELLER: No, of course not. Plenty, plenty of the Rule 68

13 evidence that we disclosed actually came from this participation of

14 Mr. Coo in interviews and of him evaluating military and police documents.

15 JUDGE BONOMY: But I read your submission a moment ago as being

16 that he only worked from documents which were recovered; he didn't use the

17 results of any of the interviews. Now, I find it difficult to understand

18 why the interview was taking place, if he wasn't going to make use of it.

19 MS. MOELLER: Well, he was assisting us to get to the heart of the

20 matter, and we may use this evidence then to call witnesses as fact

21 witnesses. But he did not use the evidence he helped adducing in such

22 interviews or statements as a basis of his report.

23 JUDGE CHOWHAN: Well, is the report like an ipse dixit, or is it

24 having references to the research he may have made, original research he

25 may have made. Ipse dixit would be a bare report on formulating a view on

Page 317

1 something he came across without substantiating it with the evidence

2 available. So is it a report of that type or is it a report he's

3 formulated on the basis of his research? Because the two are having

4 different footings. Please can you say on that.

5 MS. MOELLER: Yes, Your Honour. His report is based, as I said,

6 on a huge collection of documents that we will tender. He does -- he does

7 set out the documents in the report, but he also offers an interpretation

8 of the documents and puts them in context. Every offer of an

9 interpretation, of a theory is grounded by a footnote referring to

10 official documents of the army or the police, we submit.

11 And Mr. Coo, at the same time while offering this interpretation,

12 we think has been very careful not to touch upon the ultimate issue, which

13 of course is for the Trial Chamber to determine. And he offers this

14 expertise to the Trial Chamber to assist. And it is one interpretation,

15 and certainly the Defence will, at some point, consider offering a

16 different interpretation to these documents. But it is an argued report,

17 footnoted and sourced and very detailed, we think.

18 [Trial Chamber confers]

19 JUDGE BONOMY: Well, this is an issue that the Trial Chamber can

20 resolve, but we will not resolve it today. We will resolve it sometime in

21 the course of next week, but I'm very grateful for these submissions. It

22 will enable us to remove another contentious issue from the agenda early

23 in the trial.

24 Yes, Mr. Bakrac.

25 MR. BAKRAC: [Interpretation] Your Honour, my apologies. You said

Page 318

1 you would be ruling on this next week. This might be a good time, bearing

2 in mind that you will be ruling on this, to add something. I believe

3 there's something that has not been entirely clarified.

4 There was the issue of Mr. Coo's involvement for any assistance

5 that he gave to the investigators while they were conducting the

6 interview. I don't think this has been sufficiently clarified. Mr. Coo

7 asked a number of questions himself to some of the accused and some of the

8 witnesses, thereby directing the interview by asking questions to the

9 accused himself, and quite a number of questions, if I may add.

10 JUDGE BONOMY: Speaking for myself, I don't find that a very

11 persuasive argument because many experts have to carry out their own

12 investigations, including interviewing people to prepare themselves for

13 doing it. And it also has to be acknowledged that many experts are

14 employed by government services or have, on the face of it, what might be

15 arguably an interest in the outcome of proceedings. I think it's the

16 particular circumstances of this case that we have to concentrate on, and

17 that takes a little thought. That's why I can't -- we can't rule on it at

18 the moment. We need to have a look at some of the report, I think, as

19 well as the -- a further review of the CV of Mr. Coo and give

20 consideration to the submissions made about how this sort of situation has

21 been treated in other cases here.

22 Mr. Visnjic.

23 MR. VISNJIC: [Interpretation] Your Honour, I would like to inform

24 you, we have been successful in identifying the relevant portions in the

25 transcript. After the break, I can give you the page numbers and the

Page 319

1 relevant paragraphs. You remember that problem that the OTP addressed and

2 that I then discussed. We are finding this new technology extremely

3 helpful after all.

4 JUDGE BONOMY: Okay. We'll be grateful for that assistance.

5 It's now time to interrupt -- sorry, Ms. Moeller.

6 MS. MOELLER: Your Honour, if I just quickly give you one more

7 information.

8 All these suspect interviews and the accused interviews are

9 videotaped and recorded. So if the Trial Chamber has any doubts about

10 Mr. Coo's direct participation and putting questions to witnesses, these

11 tapes are available and it can be clearly seen what role he played in

12 these tapes.

13 JUDGE BONOMY: Thank you.

14 Well, we'll adjourn now for a half an hour -- or at least

15 until 11.00. We'll try to resume at 11.00.

16 --- Recess taken at 10.32 a.m.

17 --- On resuming at 11.03 a.m.

18 JUDGE BONOMY: Mr. Visnjic.

19 MR. VISNJIC: [Interpretation] Your Honours, I wish to inform you

20 that the transcript is from the Krstic case. The page is 9802

21 through 9804. An excerpt has been submitted by e-mail to the Trial

22 Chamber.

23 JUDGE BONOMY: Thank you very much.

24 MR. VISNJIC: Thank you.

25 JUDGE BONOMY: Now, the third of these expert witness issues is

Page 320

1 the position of the constitutional expert Ivan Kristan and one particular

2 issue relating to his potential evidence, and that is whether somehow or

3 other he is barred from being presented as an expert because he played a

4 role in some of the events about which he would give evidence.

5 Now, do you have a submission to make on that, Ms. Moeller?

6 MS. MOELLER: Yes, Your Honour. We would first like to refer Your

7 Honours to our written submissions of 10 November 2004.


9 MS. MOELLER: Where we dealt with Mr. Kristan in paragraphs 34

10 to 44.

11 As to the history of Dr. Kristan, as you are aware of, he was also

12 called as an expert in the Milosevic trial, and a hearing was held on the

13 very same issue, whether his activity as a judge of the constitutional

14 court at the time precluded him from being an expert on certain issues

15 dealt with in his expert report.

16 The Milosevic Trial Chamber on 23 May 2004, it's transcript

17 pages 21161 to 62, held that due to a lack of disinterestedness in this

18 expert, he could not testify as an expert on two aspects of his expert

19 report; namely, the first two parts in the expert report relating to the

20 revocation of Kosovo's autonomy and the right to self-determination and

21 secession of the Republic of Kosovo. It's the parts in the expert report

22 starting at page 7 and going to page 39 in the version we now also submit

23 as the expert report.

24 At the same time, the Trial Chamber in Milosevic did allow him to

25 testify and did admit the other parts of his expert report, which related

Page 321

1 to issues not related to his former function of the constitutional court.

2 There were parts relating to the Socialist Federative Republic of

3 Yugoslavia, the Republic of Serbia, and the FRY dealing with aspects

4 relating there to federal law mainly.

5 In our submissions in this case, we argue that the ruling of the

6 Milosevic Trial Chamber to preclude him for the issues related to the

7 autonomy of Kosovo and the right to secession are not binding on this

8 Trial Chamber. As you know, only Appeals Chamber Judgements are binding

9 for Trial Chambers, so the Trial Chamber would technically of course be

10 free to adopt a different opinion on this issue.

11 We would like to refer Your Honours again to the Brdjanin decision

12 of 3 June 2003, which explicitly states that any matters relating to the

13 independence and impartiality of the expert are matters of weight.

14 We submit that on the basis of this jurisprudence the Trial

15 Chamber could hear the expert also on the two matters that were not

16 accepted by the Milosevic Trial Chamber and could take into account

17 Mr. Kristan's former function as a judge of the constitutional court when

18 attaching weight to his evidence. We also submit that his position as a

19 judge on the constitutional court and the fact that he submitted an

20 opinion on the very issue we ask him to submit an expert opinion in this

21 court does not necessarily preclude him as an expert.

22 It is correct that he did deal with the aspects concerned by his

23 report in a separate opinion while being a judge on the constitutional

24 court, but summarising this again, we think, if at all, that goes to

25 really the weight attached and not to the admissibility of the report.

Page 322

1 To add to the history of Mr. Kristan in Milosevic, there is

2 another ruling of the Milosevic Chamber dated 1st March 2005 called order

3 on re-calling Dr. Kristan. And in this decision the Trial Chamber allowed

4 Mr. -- Dr. Kristan to be re-called back as a fact witness in relation to

5 the very two issues that he was not allowed to testify about as an expert.

6 That occurred after the Defence in Milosevic had called a constitutional

7 expert who was dealt with in a very detailed examinations. And the Trial

8 Chamber in this order decided that Dr. Kristan would be called back as a

9 fact witness testifying to the autonomy of Kosovo and the revocation of

10 its autonomy and the right to self-determination.

11 So we submit that in the alternative, should the Trial Chamber not

12 accept Mr. Kristan as an expert on the two issues that relate to his

13 previous position as a constitutional judge, then we would apply for

14 Mr. -- for Dr. Kristan to be called as a fact witness on these matters.

15 That would conclude my submissions, Your Honour.

16 JUDGE BONOMY: Thank you, Ms. Moeller.

17 Now, who for the Defence would like to take the lead on this?

18 MR. ZECEVIC: [Interpretation] Your Honour --

19 [In English] Thank you very much, Your Honour.

20 [Interpretation] In our submission on the 27th of August, 2004, we

21 expressed our views in detail with regard to the expert, Professor Ivan

22 Kristan, and Mr. Budimir Babovic. I would just like to make a few brief

23 comments with regard to what my learned friend just said.

24 It is a fact that Mr. Ivan Kristan was a court of the -- a judge

25 of the constitutional court, and then on the basis of his participation in

Page 323

1 the debate before the constitutional court of the constitutional changes,

2 rather, the amendments to the constitution of Serbia in 1990 -- well, on

3 the basis of these facts, the Trial Chamber in the Milosevic case

4 concluded that there were not sufficient grounds -- or rather, that he was

5 not an interested party [as interpreted]. So from that point of view, his

6 expert opinion was rejected in that part.

7 This is where the problem lies. As opposed to the Milosevic

8 case --

9 JUDGE BONOMY: Was your submission he was not -- or was your

10 submission that he was an interested party?

11 MR. ZECEVIC: [Interpretation] Oh, yes, he was an interested party.

12 JUDGE BONOMY: Just to correct the transcript.

13 On you go, Mr. Zecevic.

14 MR. ZECEVIC: I'm sorry, I couldn't check the transcript --

15 JUDGE BONOMY: No, no, that's okay.

16 MR. ZECEVIC: -- at the same time.

17 JUDGE BONOMY: Indeed.

18 MR. ZECEVIC: [Interpretation] The problem is that the Milosevic

19 case consisted of three indictments, covering a period from 1990 -- or

20 rather, 1992 up to 1999. Our indictment covers the period from 1999 --

21 well, with a certain part of 1998. At that time, what is relevant for

22 this Trial Chamber and what the task of a constitutional expert would be

23 is to explain the constitution of the socialist -- no, Federal Republic of

24 Yugoslavia and the constitution of Serbia and their mutual relationship.

25 Mr. Kristan, in his explanation of this expertise, stated very

Page 324

1 explicitly that he did not deal with the constitution of the Federal

2 Republic of Yugoslavia or the constitution of the Republic of Serbia. So

3 those two constitutions that are of key importance and their mutual

4 relationship, as far as this case is concerned, was not actually the

5 subject of Mr. Ivan Kristan's professional interest.

6 Mr. Ivan Kristan in his CV states that he wrote 24 papers, out of

7 which ten were published before 1990 and, for the most part, pertained to

8 the constitution of the federal republic -- Socialist Federal Republic of

9 Yugoslavia and the law on associated labour and so on and so forth and the

10 relations among the federal republics within the former Yugoslavia.

11 After that, after 1990, he published yet another 14 other papers,

12 none of which remotely deal with the subject matter that is of interest

13 for this Trial Chamber.

14 JUDGE BONOMY: I wonder if I might interrupt you there,

15 Mr. Zecevic. I don't think it's appropriate at this stage to go into a

16 general challenge to the expertise of Dr. Kristan. The one issue that the

17 Trial Chamber feel they might be able to resolve at this stage is the

18 question whether his membership of the constitutional court, the factors

19 that led the Milosevic Trial Chamber to exclude him as an expert on

20 certain subjects, should be regarded as excluding him or preventing him

21 from giving expert evidence in this trial.

22 Now, you're identifying possibly a question of relevance, bearing

23 in mind that this trial is about 1999. And that's a matter we might

24 address I think in a different context nearer the time of hearing his

25 evidence. Could you confine your submission, please, to the question

Page 325

1 whether the fact that he was involved in some of the events ought to

2 preclude him from being viewed as an expert.

3 MR. ZECEVIC: [Interpretation] I most certainly agree with you,

4 Your Honour.

5 I turn to the question of relevance --

6 JUDGE BONOMY: Well, I don't know what you're agreeing with, but

7 please don't consider me as having indicated a firm view on anything here.

8 MR. ZECEVIC: [Interpretation] When I said I agreed, my

9 understanding was the Trial Chamber was expecting me to state my

10 position -- or rather, the Defence team's position concerning this special

11 situation or, rather, his position as a judge attached to the SFRY

12 constitutional court. However, I took the opportunity to speak about

13 relevance in general because that was the other thing that my learned

14 friend had previously addressed. She offered another option for him to be

15 heard as a factual witness and not an expert in relation to one portion of

16 his evidence and as an expert in relation to another portion of his

17 evidence.

18 That's what I have to say about the relevance, but if the Trial

19 Chamber wishes to hear this on a different occasion, we can leave that for

20 later.

21 As for the question just asked by the Chamber, we fully support

22 the ruling in the Milosevic case. We did say that in our brief on the

23 27th of August, 2004. We believe that the fact that he was a member of

24 the trial chamber of the SFRY constitutional court when this issue was

25 ruled upon eliminates him as a potential expert witness on this issue,

Page 326

1 since we definitely believe that he would be interested in reinforcing his

2 position after some time has elapsed and to corroborate his position by

3 using the same arguments that he had already provided at the time. His

4 expert report or his evidence as an expert will not achieve a level of

5 quality that might help us or the Trial Chamber to approach the truth.

6 JUDGE BONOMY: Now, what's the difference between that situation

7 and a situation where an academic expert gives evidence in one case and

8 then gives the same evidence in a later case, particularly where his

9 evidence has been accepted in the first case, why is that any different

10 from the situation where, as a member of a court he expresses an opinion,

11 as an impartial member, a man subject to all the controls and expectations

12 that arise when you're a judge. Why should that level of impartiality

13 displayed on a previous occasion disqualify him from expressing that

14 opinion on a later occasion? I mean, I, for one, at the moment am

15 entirely unpersuaded by the Milosevic decision, and that's why I raise

16 this matter at this stage.

17 JUDGE CHOWHAN: With the permission of the chair, I have a comment

18 to make.

19 As I understand the decision in that case regarding this witness

20 was to an interlocutory order and it was not a judgement to play the

21 position of a ratio decidendi. So it will not be a ratio decidendi. Even

22 talking about it would be something said in obiter, and what was

23 said in obiter is not binding at all, especially with us here or any other

24 because it was obiter. It was never a ratio decidendi and it was just a --

25 because ultimately had they decided and given a view, that would have been

Page 327

1 different. So I would say that can't be quoted. Thank you.

2 JUDGE BONOMY: Well, just in case there is any misunderstanding

3 here, it was in fact a decision because the witness did give evidence and

4 was prevented from giving expert evidence on these two matters, but it was

5 a decision by a Trial Chamber, which is not binding on this Trial Chamber,

6 although it has to be respected in any determination we make. But the

7 matter never got to the Appeals Chamber, and therefore there is no binding

8 authority in this situation.

9 Carry on -- if you can help me on that issue, Mr. Zecevic, which

10 is one that has puzzled me since I saw the decision.

11 MR. ZECEVIC: [Interpretation] I fully agree with the Trial Chamber

12 and, above all, I fully with my learned friend who has provided

13 essentially the same explanation as the Chamber. There was a decision in

14 the Milosevic case which is in no way binding this Chamber. I do agree.

15 The fact is, however, that the Trial Chamber in the Milosevic case

16 discussed this same situation and passed the decision that it did. There

17 is no doubt about that.

18 What we see as a potential problem for Mr. Kristan here is the

19 fact that in the previous case he was not really an expert. He was one of

20 the judges who ruled on an issue before the federal constitutional court.

21 His opinion diverged from the majority opinion at the time. The majority

22 adopted the final decision. That is another fact. His opinion, as such -

23 and I fully agree with the Trial Chamber - is perfectly justified. Any

24 judge is entitled to an opinion or to a dissenting opinion. The fact,

25 however, remains that a decision was made; a decision was made by the

Page 328

1 federal constitutional court. At the time the decision became part of the

2 legal system. If it is a majority decision, then it has full legal force,

3 the constitutional court being the supreme legal institution in that

4 country at the time.

5 As far as that is concerned, Mr. Kristan or any other expert would

6 have to quote that decision as being a part of the legal system of that

7 country at the time. This decision was adopted in a perfectly legitimate

8 procedure. In his expert report he defends his own dissenting opinion,

9 which was not a majority opinion in that case.

10 Bearing that in mind, I believe the Trial Chamber in the Milosevic

11 case believed, as we believe, that his expert opinion could not be viewed

12 separately from the context of this fact, and this fact is what it is, it

13 is a fact.

14 That is our position.

15 JUDGE BONOMY: I think I agree with that. And I also think that

16 if the decision was made properly, then that's a fact that no one can do

17 anything about. But that's -- so that's a rather different question which

18 wasn't the basis for the Milosevic decision. The basis was the very fact

19 that he had played any part at all in the events barred him.

20 Anyway, I'm grateful for that submission. Is there any other

21 counsel that wishes to supplement that?

22 MR. ZECEVIC: Thank you, Your Honours.

23 JUDGE BONOMY: All right. Thank you.

24 MR. ZECEVIC: Thank you, Your Honours.

25 [Trial Chamber confers]

Page 329

1 JUDGE BONOMY: This might be a suitable opportunity to make a

2 couple of comments about the matters forming the subject of the trial, in

3 light of the broad submission that Mr. Zecevic made just now.

4 There is a question mark in the minds of the Trial Chamber about

5 the general relevance of Dr. Kristan's evidence, bearing in mind that much

6 of it is about matters of law and comparison of constitutions on which the

7 Trial Chamber considers itself equipped to deal with the matter without

8 guidance. However, that matter may have to be reviewed in more detail

9 nearer the time the witness gives evidence.

10 We're also concerned about just how important events in 1988 to

11 1991 might be in the context of this indictment, and even more concerned

12 about what relevance might be found in events around 1980 and shortly

13 thereafter in relation to this indictment. And therefore, there are a

14 number of issues yet to be determined prior to the time when Dr. Kristan

15 is envisaged as a witness about his evidence in general.

16 On this particular point, however, we will, I think, be able to

17 make a determination, and we shall do so in the same decision as we issue

18 in relation to the witness Coo, and that will be in the course of --

19 sometime in the course of next week. But bear in mind that the decision

20 is confined to the particular point that was raised in the agenda.

21 Now, that completes the matters relating to experts, except to

22 confirm the general indication given in the agenda, on which I think

23 everyone was agreed in any event, that whatever expert gives evidence will

24 be available for cross-examination.

25 Ms. Moeller.

Page 330

1 MS. MOELLER: Your Honours, may I just add one piece of

2 information regarding Dr. Kristan.

3 At a Status Conference held shortly after Dr. Markovic testified

4 in Milosevic, you, as a Pre-Trial Judge, already raised the issue of the

5 relevance and whether this is evidence that should really be led in trial.

6 And upon these orders by you, we started sending out letters to the

7 Defence setting out all the laws and constitutions, and we sent them to

8 the three original accused on 2nd May 2005 and to the other accused on

9 29th September 2005. At that time, in September 2005, we also supplied

10 the Defence with all the laws and constitutions on a CD and asked them

11 whether they could agree that these constitutions and laws, as such,

12 existed.

13 Unfortunately, we haven't heard back on that, and in the pre-trial

14 briefs of the Defence, we just went through them again, they have not

15 agreed on any of these laws or constitutions. So we have attempted to

16 obtain an agreement on these laws and constitutions and in order to reduce

17 the amount of time we would use to lead such evidence in trial. However,

18 to no avail so far.

19 JUDGE BONOMY: Yeah, this is a matter which I have a little later

20 in the agenda. I was going to deal with it under the heading in the

21 second section about the agreement on facts. But just give me a moment,

22 would you?

23 [Trial Chamber and legal officer confer]

24 JUDGE BONOMY: Yeah, let's address this issue just now.

25 It -- I don't envisage that today we are going to make much

Page 331

1 progress on agreed facts, but this has been an area on which goodwill was

2 expressed by the Defence towards trying to reach agreement with the

3 Prosecution on what the law actually is. In other words, it's a pure

4 issue of authenticity. It's nothing to do with the impact or effect of

5 it, which is a matter of interpretation, but a question of what is the law

6 at any given time relevant to the indictment.

7 Now, if Ms. Moeller is right that there hasn't been any progress

8 made towards resolving this, then it's a bit disappointing in view of the

9 indications, at least, that were given earlier.

10 Now, can someone assist me on that?

11 Mr. Zecevic.

12 MR. ZECEVIC: [Interpretation] Your Honour, this is what the

13 situation is. As far as the Defence is concerned, I am speaking generally

14 on behalf of all the Defence teams now, we absolutely stand by what was

15 said at our previous conferences, where we stated that we absolutely have

16 no problem with relevant laws and regulations that were in force at that

17 time in the country and the text of these regulations, as published in the

18 Official Gazette of the then-FRY or Republic of Serbia or Kosovo or any

19 other socio-political unit. We have absolutely no problem with that.

20 However, this is what the situation is. In the meantime, we got

21 from the Prosecution an offer to agree on a great many facts. Then - how

22 should I put this? - we responded to that, and these facts included these

23 laws. Trying to resolve several matters in a minimum of time, we wanted

24 to include all of this in a general agreement on facts, including

25 stipulation as far as laws and regulations are concerned. However, the

Page 332

1 problem was that we did not get that document in a language understood by

2 our clients and of course we have to get instructions from our clients

3 with regard to facts. I'm not talking about laws now, because that's

4 different, but that was part of that document. So we would have to get

5 that in Serbian so that we could get instructions from our clients. At

6 that moment we would be quite ready to reach an agreement on facts with

7 the Prosecution, as we said in advance to the Trial Chamber that we are

8 not going to challenge the facts that have to do with laws and

9 regulations.

10 In my opinion, it is really just a technical detail at this stage.

11 It's not --

12 [In English] I see that Your Honour wants to pose a question, so

13 that's why I stopped.

14 JUDGE BONOMY: Yeah, I can understand why certain matters of fact

15 require translation for discussion with the accused, but so far as what

16 was the law at the time is concerned, why can't that be dealt with as a

17 separate, discrete issue on the basis of what was submitted to you? Is

18 there any reason?

19 MR. ZECEVIC: [Interpretation] The problem is I believe -- of Your

20 Honour's, the problem is that we got a separate submission that has to do

21 with the law that has to do with the stipulation of legal norms that were

22 in force at the time.

23 After that, soon after that, we got a document that included

24 agreement on facts, including the previous document regarding legal

25 regulations and norms. That is why we thought that the subsequent

Page 333

1 document actually embodied the position of the Prosecutor. So we wanted

2 to resolve this in that way.

3 If the Trial Chamber is instructing us to deal with this

4 separately, we are prepared to deal with it on Monday, or perhaps even

5 today, time permitting.

6 JUDGE BONOMY: Thank you, Mr. Zecevic.

7 Mr. Visnjic.

8 MR. VISNJIC: [Interpretation] Your Honour, I would just like to

9 assist my colleague, Mr. Zecevic, and to remind you of the following.

10 The last position by the Defence, I would like to remind you of

11 that, was that we accept the text in the Serbian language, as they were

12 published in the Official Gazettes, in the photocopies of the material

13 that we got from the Prosecutor. As for the translations and the

14 discussions on that, this turned into a problem because of the

15 translations into English, but we did accept the documents that were

16 submitted to us in the original language and we did not have any

17 objections to that.

18 What we are discussing now is perhaps an additional element in

19 terms of whether we are going to conclude that material in the

20 stipulations, as proposed by the Prosecution, 400 or so individual items.

21 As far as the documents themselves are concerned - and my colleagues can

22 correct me if I'm wrong - we accepted them as they stand in the original

23 language. We did not go into the translations, and we have not analysed

24 that until now.

25 MR. PETROVIC: [Interpretation] Your Honour, by your leave may I

Page 334

1 just add to what my colleagues have said, but I do subscribe to everything

2 they said.

3 The Serb versions of these documents, as published in the Official

4 Gazettes, that is what we are ready to accept. However, we want to say

5 that in that set of documents there are some documents that are actually

6 not the texts of laws or by-laws or of the constitution. We are agreeing

7 only to laws and by-laws that were published in appropriate Official

8 Gazettes of appropriate socio-political entities, that is to say

9 republican, provincial, and so on. That is our acceptance of it.

10 However, as for legal and factual conclusions that could be drawn on the

11 basis of this, we do not agree to that. That will remain for our own

12 argumentation and your own ruling, Your Honours, ultimately.

13 JUDGE BONOMY: That is obvious. But, Mr. Petrovic and others,

14 please bear in mind that regrettably - and I do greatly regret that I'm

15 not fluent in every language that is relevant to the case - regrettably,

16 it will not be of great assistance to the Judges if you agree the Serb

17 text and refuse to agree the English translation. Now, we have to

18 overcome that difficulty in some way, and it would be rather petty, I

19 would suggest, if we're not able to work out a methodology for reaching

20 agreement on the English text. Each of the three Judges dealing with this

21 case will expect to review the documents in English.

22 Ms. Moeller.

23 MS. MOELLER: Your Honours, we -- this is the list of the -- of

24 the laws and constitutions we're talking about, and it's a rather tiny

25 list. We would like to clarify. These are texts taken from the Official

Page 335

1 Gazettes of Serbia of the FRY, and these are all official texts. We

2 disclosed them in B/C/S and in English, so from that time onwards they had

3 these documents in both languages. And this argument does -- I think

4 lacks really merit. In addition --

5 JUDGE BONOMY: Well, I -- with respect, the indication being given

6 by Mr. Visnjic is that the position for some time has been that the text

7 in Serbian, so far as published in a gazette, is accepted by the parties.

8 Now, we're at least over the hurdle of agreement on what the law actually

9 was, but for practical purposes, we need to go a stage further and we need

10 to be able to agree on the English text. Now, how are we going to do

11 that?

12 MS. MOELLER: Well, Your Honour, if the Defence could point out in

13 relation to which documents they have concerns regarding the English

14 translation.

15 JUDGE BONOMY: Was each of the translations done by CLSS here or

16 are they unofficial OTP translations?

17 [Prosecution counsel confer]

18 MR. VISNJIC: [Interpretation] Your Honour, perhaps I may be of

19 assistance.

20 THE INTERPRETER: Could counsel please speak into the microphone.

21 The interpreters missed a certain section.

22 JUDGE BONOMY: Mr. Visnjic, the interpreters have missed the start

23 of your submission there. Your microphone is on now, but you were leaning

24 away from it. If you could start again, please.

25 MR. VISNJIC: [Interpretation] Yes, Your Honour. Before me I have

Page 336

1 a list of documents that the Prosecution disclosed on the 29th of

2 September, 2005. These are documents in the Serbian language, the

3 photocopies of the excerpts from Official Gazettes, the documents that we

4 referred to just a moment ago. On the right hand, in that column where

5 there should be translations into English, I'm telling you now tentatively

6 that, say, in about 70 cases, it says "translation requested." Only at

7 one particular place does it say -- in one column it says "CLSS

8 translation requested," which is what we would actually want. The other

9 documents are, for the most part, untranslated, or some have draft

10 translations, whereas some were seemingly taken over from the Milosevic

11 case but with CLSS translations. So we are debating translations here

12 now. Who translated the documents? And once we get these records --

13 well, of course I will stand corrected if I made a mistake in this, but we

14 are prepared to discuss it.

15 JUDGE BONOMY: Thank you. We've had sufficient discussion to deal

16 with this.

17 At the resumption after the mid-day break, which will be -- we'll

18 be resuming at probably -- I think it was programmed for 2.00, was it, the

19 resumption? 2.00. Well, whatever that time is, it will be 2.00 or it may

20 be a bit later, we'll make a decision about that at the time. After that

21 break, I would like you to present to the Chamber a list of the laws

22 published in the gazette that are accepted by the Defence from the list

23 submitted by the Prosecution. Now, that gets over the hurdle of agreement

24 on the law, the language being the Serbian language. That will also allow

25 time for the Prosecution to identify which documents have been formally

Page 337

1 translated and intimated, and to draw that to the attention of the

2 Defence, who seem to be in doubt that that has actually happened in

3 relation to the bulk of these documents. And you should be able to tell

4 us how far along the road you are to at least having in everyone's hands

5 English copies. There may then be some time necessary to reach agreement

6 that the translations are entirely accurate. So can we proceed that way?

7 It's something that shouldn't take up more Bench time, I think, in the

8 course of this hearing. All right. Thank you.

9 Now, the next matter -- I'm sorry. Mr. Zecevic.

10 MR. ZECEVIC: I'm sorry, Your Honour. Just a very short

11 instruction from the -- well, we're seeking instruction from the Trial

12 Chamber. There is a certain number of laws which were -- which were part

13 of the legal system of Serbia and FRY at the time which are not in that

14 list. We think these -- these laws are applicable and would need to be

15 presented one way or the other during the trial, either in the OTP case or

16 the Defence case.

17 JUDGE BONOMY: Well, please try to do the same with them. You

18 should be submitting a list of additional ones that you think --

19 MR. ZECEVIC: If I may -- with all due respect, if I may -- if I

20 may suggest something: That we keep this as an ongoing process. That we

21 provide the document today, which we will make the agreement with the OTP,

22 and in future, if we would have, we would then present some other

23 agreements on the other laws.

24 JUDGE BONOMY: For the avoidance of doubt, common sense is the

25 fundamental law that applies in this trial. And anything of -- any

Page 338

1 suggestion of that nature will be welcomed by the Trial Chamber.

2 MR. ZECEVIC: Thank you, Your Honours.

3 JUDGE BONOMY: That then takes us to the next listed item. We

4 received this week a motion for protective measures, the seventh motion

5 submitted by the Prosecution. Now, I suppose normally this would go

6 through a bureaucratic process of written responses, but it did seem to

7 the Trial Chamber that it may be possible to cut through that in relation

8 to this particular motion because we've dealt with the others by agreement

9 in a particular way. Now, in this case does any Defence counsel take

10 exception to the motion and invite the Trial Chamber to do something

11 different from what it's done in relation to the other motions for

12 protective measures?

13 The absence of response suggests no to me. The one difficulty

14 that we have to overcome immediately, however, is that at least two of the

15 three witnesses referred to are not on the 65 ter list that I had prior to

16 today, and that needs to be resolved -- in fact, it may be that the first

17 thing to do, Mr. Hannis, is address the 65 ter list that's presented today

18 and to tell us if these are the only two additions or if there are any

19 others.

20 MR. HANNIS: Thank you, Your Honour. No, they aren't the only two

21 additions. And if I may, I'd like to go briefly through all the changes

22 between the list that was filed in May and the list that we filed

23 yesterday.

24 We have five new witnesses to the list. Those include the

25 witnesses K78 and K79 for whom we've requested protective measures in that

Page 339

1 seventh motion, a witness named Branimir Aleksandric, a witness Mahmut

2 Halimi and witness Bislim Zyrapi. I think on the list -- if you have the

3 list in front of Your Honours, these are numbers 163 through 167. We put

4 them on at the end of the list.

5 JUDGE BONOMY: Now, have the statements for the ones for whom you

6 don't seek protective measures been disclosed?

7 MR. HANNIS: They have, Your Honour, with regard to the last

8 witness Bislim Zyrapi. An earlier statement of his disclosed, a

9 supplemental statement of his was in the process of being taken yesterday,

10 and we expect it will be completed and finalised early next week and

11 disclosed, I think we said by the 14th of July.

12 And with regard to the protected witnesses, Your Honour, at this

13 point we've only disclosed redacted statements in English.

14 JUDGE BONOMY: Okay. Now, let's deal with this first of all. Is

15 there any objection from any Defence counsel to the addition of any of the

16 five witnesses to the list?

17 All right. No objection to that. So the Trial Chamber will allow

18 the addition of these witnesses to the witness list.

19 The second question, and I think it's already been answered, but

20 just in case there's any doubt on it, does any Defence counsel take any

21 exception to treating the seventh motion in the same way as earlier

22 motions for protective measures and granting them in the way that we've

23 granted the others?

24 No one takes exception to that. So the motion will be granted in

25 similar terms.

Page 340

1 But you have raised another issue, I think, in your proposed

2 agenda, Mr. Hannis, which is to alter decisions made earlier, in light of

3 the possibility of one or more of the accused not returning from

4 provisional release after the recess.

5 MR. HANNIS: That's correct, Your Honour. There are a number of

6 witnesses for whom we had requested delayed disclosure. The Trial Chamber

7 had ordered that that disclosure be made on the 31st of July. The 31st of

8 July now also happens to be the date upon which all the accused are to

9 return after the provisional release that will be granted to them for two

10 weeks during our recess.

11 Part of our -- part of our argument previously regarding that date

12 for delayed disclosure had related to our suggestion to the Court that we

13 had mentioned some witnesses --

14 JUDGE BONOMY: Can I cut through this?

15 MR. HANNIS: Yes.

16 JUDGE BONOMY: It's no -- it's no accident that these dates are, I

17 think, now the same. Perhaps it would have been more convenient if one

18 was earlier than the other slightly, but the fact of the matter is I think

19 they have to return by a certain time on the 31st of July.

20 MR. HANNIS: That's correct, Your Honour. I think they're due

21 back by 2.00 p.m., and we anticipate filing by 5.00 p.m., if all six are

22 in custody.

23 JUDGE BONOMY: I don't expect to take any decision on this today.

24 What I would expect you to do in the event of any not returning would be

25 to apply at that stage, because you can delay the release of the material

Page 341

1 until the position's been clarified.

2 MR. HANNIS: Okay. Your Honour, that's all we wanted to do.

3 Thank you.

4 JUDGE BONOMY: Thank you.

5 So that, I think, deals with the seventh motion for protective

6 measures and associated witness issues, that's the 65 ter list.

7 MR. HANNIS: Your Honour?

8 JUDGE BONOMY: I take it -- does the 65 ter list also relate to

9 documents or is it confined to witnesses?

10 MR. HANNIS: I was talking about witnesses. And there were some

11 other changes on the list we filed yesterday I wanted to bring to your

12 attention.

13 JUDGE BONOMY: All right.

14 MR. HANNIS: In addition to those five new witnesses I mentioned,

15 Your Honour, we have dropped five witnesses from the original list.

16 Number 19, Shukri Buja has been dropped from our list; number 36, Miradije

17 Gashi; number 52, Sofie Imeraj; number 141 , which was K66; and number

18 150, which was protective witness K76.

19 And two other matters, Your Honour. Some additional witnesses we

20 made changes in the designation, whether they were going to be viva voce

21 or 92 bis. Witness number 55 Sadik Januzi we have learned has died and we

22 will be seeking to have his evidence admitted under Rule 92 bis (C).

23 Witness number 71 Rahim Latifi. We now propose to have testified live

24 instead of pursuant to 92 bis for the reason that another viva voce

25 witnesses had died and we want to replace him with Mr. Latifi. Number 85,

Page 342

1 Halil Morina is another witness who has died, and we again anticipate

2 filing under 92 bis (C) to try and get his evidence in. Number 114,

3 Gordana Tomasevic was listed as a Rule 92 bis witness, but we propose to

4 call her as a live witness instead. Part of her evidence deals with the

5 acts and conduct of one of the accused. Number 5 -- I mean, the next

6 witness, number 128, K20, protected witness, and we propose to call her

7 live instead of pursuant to 92 bis.

8 The last issue deals with Rule 70 witnesses, and I don't know if

9 you want me to talk about them now. I know they're on your agenda later

10 on.

11 JUDGE BONOMY: It's probably convenient to deal with them as well.

12 We just want to know that everything that needs to be done has been done.

13 MR. HANNIS: I'll report on that, Your Honour.

14 JUDGE BONOMY: Well, yes, on you go.

15 MR. HANNIS: Number 154 was a witness listed as a representative

16 of a humanitarian organisation. We have now identified him by name and

17 provided his material. Number -- for the US Rule 70 witnesses they are

18 now appearing in blocks number 157 through 160.

19 We have not gotten full consent from the provider to release

20 everything related to those witnesses. I can name them. They are Wesley

21 Clark, Braddock Scott, Shaun Byrnes and Mike Philips.

22 We have disclosed the prior testimony of Wesley Clark from the

23 Milosevic trial. With regard to Braddock Scott, we have an ICTY statement

24 which we have disclosed. And with regard to Mr. Byrnes and Mr. Philips,

25 we have disclosed a 65 ter summary, but we have no statement from them

Page 343

1 that we have obtained consent from the provider to release as of this

2 date. We are still in negotiations trying to do that. I know Friday --

3 yesterday was my deadline, Your Honour, and I am reporting to you on the

4 status of that and our ongoing efforts to obtain statements to disclose in

5 relation to those last two.

6 And I should say, we had at one time told Your Honour we thought

7 there would be possibly as many as six US Rule 70 witnesses. We are now

8 intending only to call four, those four I just named.

9 JUDGE BONOMY: It's only right that I should give you some notice,

10 Mr. Hannis, that in relation to Wesley Clark, I will certainly require

11 some persuading that he should be treated the way he was treated in the

12 Milosevic trial.

13 MR. HANNIS: I understand that, Your Honour. I have not reached

14 any final agreement or instruction from the provider in that regard.

15 JUDGE BONOMY: But there is a controversial issue there. I don't

16 know anything about the other three -- at least I don't know sufficient

17 about the other three to make any comment.

18 MR. HANNIS: I don't think there would be anything of the same

19 level of requirements. And with regard to Mr. Clark, I think the

20 circumstances have changed that I hope won't make those not so important

21 this time [sic].

22 [Trial Chamber confers]

23 JUDGE BONOMY: Thank you, Mr. Hannis, for that comprehensive

24 explanation of the up-to-date witness situation.

25 Does any Defence counsel have any comment to make about the

Page 344

1 various things that have been said about changes in witness arrangements?

2 All right. Thank you very much.

3 MR. PETROVIC: [Interpretation] Your Honours, if I may.

4 JUDGE BONOMY: Mr. Petrovic.

5 MR. PETROVIC: [Interpretation] Just very briefly. I have spoken

6 to some of my learned friends, by no means all. I hope that I'm

7 expressing a joint position, despite this. As soon as we receive written

8 motions on these circumstances, changes in the witness status and so on

9 and so forth, we would like to reserve the right to put forward our

10 position then. That is what I have to say at this point in time about

11 these changes proposed by the OTP.

12 JUDGE BONOMY: Well, I don't quite understand what you're saying.

13 I mean, I understand that if you're -- I understand what you're saying if

14 it's confined to the four American Rule 70 witnesses, but if you're saying

15 something about -- that goes beyond that, I don't follow the point you're

16 making.

17 MR. PETROVIC: [Interpretation] Your Honour, we heard that some

18 witnesses, for example, those who have died, will be submitted as 92 bis

19 (C) witnesses --

20 JUDGE BONOMY: Sorry, I understand that. Yes, exactly. These

21 ones plus the Rule 70 witnesses; I follow what you're saying.

22 MR. PETROVIC: [Interpretation] That's right. Thank you very much,

23 Your Honour.

24 JUDGE BONOMY: Just again a general comment that I know that it's

25 pretty standard practice here for motions in any circumstances to be made

Page 345

1 in writing, and often that's encouraged, depending on circumstances;

2 however, the Bench can often be greatly assisted by oral discussion of

3 matters. And we, in principle, will have no objection to oral motions

4 being made, but we would not want them made without notice. So if you

5 wish to present a motion orally, then that will be perfectly acceptable as

6 long as adequate notice is given for your opponent to prepare to respond.

7 But please bear in mind also that the court time is most valuably used in

8 hearing evidence, and therefore I would ask you to do that with

9 discretion. It's even possible, I suspect, to arrange hearings to

10 consider motions, depending on the availability of courtroom space, that

11 wouldn't interfere with the hearing of evidence. But listening to

12 witnesses, causing them the maximum -- the minimum inconvenience will be

13 the prime objective of the way in which the Court manages the use of court

14 time.

15 Now, the final matter in the section, in the first section, of

16 this agenda is the request by Mr. Visnjic that his client should make a

17 statement pursuant to Rule 84 bis, following upon the Prosecutor's opening

18 statement. And, as you know, the rule provides for such a statement being

19 made under the control of the Trial Chamber and gives the Trial Chamber

20 authority to decide in their discretion whether or not to permit this to

21 happen. And notice was given to you, I think, Mr. Visnjic, that the Trial

22 Chamber would like you to explain the purpose and nature of the statement

23 that's proposed.

24 MR. VISNJIC: [Interpretation] Indeed, Your Honour. I thank you

25 for giving me the opportunity to brief you on this. General Ojdanic

Page 346

1 wishes to make an 84 bis statement. As far as I know, and I do believe I

2 know what he would like to say, he would like to introduce himself to the

3 Trial Chamber and say a thing or two about his background. The next

4 portion of his statement relates to the substance of the indictment and

5 his own mens rea when these events took place. As far as I know - and I

6 do believe I know sufficiently to say - General Ojdanic will be speaking

7 about things related to the indictment and will not go any further than

8 the framework of the indictment itself or its legal implications. Thank

9 you.

10 JUDGE BONOMY: That allows him awfully broad scope, Mr. Visnjic,

11 in view of the way in which this indictment is framed.

12 MR. VISNJIC: [Interpretation] Your Honours, we shall try to use up

13 probably not less than half an hour, but certainly no more than an hour.

14 May I add something, Your Honour? General Ojdanic was first

15 indicted seven years ago. He has not spoken publicly about the indictment

16 so far, especially as regards any of the detail of the indictment. He has

17 not had many opportunities to address this publicly. I think this is an

18 opportunity for him to express the strong feeling that he has that he

19 stands indicted yet he is innocent. I do not think there will be anything

20 in his statement that would go outside the scope of the indictment itself.

21 JUDGE BONOMY: Thank you.

22 [Trial Chamber confers]

23 JUDGE BONOMY: Mr. Ojdanic, could you just stand, please. Just --

24 [Trial Chamber confers]

25 [Trial Chamber and legal officer confer]

Page 347

1 JUDGE BONOMY: Mr. Visnjic, you can perhaps clarify for me the

2 basis on which the accused -- I haven't paid any attention this morning to

3 the position of the accused until now. What's the basis on which they've

4 been invited into the dock? I thought there would be some logic to the

5 order in which they sat in court.

6 [Trial Chamber and legal officer confer]

7 JUDGE BONOMY: Is there any particular reason why the accused are

8 not sitting in the order in which they appear in the indictment? That's

9 my simple question.

10 MR. VISNJIC: [Interpretation] Your Honour, I believe I can

11 explain. I think as they entered the courtroom this morning they just sat

12 down. I think that is the only rational explanation that I could possibly

13 offer.

14 JUDGE BONOMY: All right. Thank you.

15 So, Mr. Ojdanic, you are to be permitted by the Trial Chamber to

16 make your own opening statement, following upon the opening statement of

17 the Prosecutor. Mr. Visnjic has given a clear indication that the

18 statement will be confined to an introduction of yourself, an explanation

19 of your background, and comments you wish to make about the substance of

20 the indictment and your own mens rea, your own mental state and

21 understanding of things, at the time of the events in the indictment, and

22 that what you say will not extend beyond matters raised in the indictment.

23 The Trial Chamber will monitor carefully the statement you make,

24 because these statements are designed to assist the Trial Chamber to reach

25 a determination of issues raised in the indictment. I'm particularly

Page 348

1 concerned that in this trial the issues that are addressed by the parties

2 are entirely forensic issues and that we do not extend into the political

3 arena, beyond the extent to which that is absolutely necessary.

4 So I ask you to bear carefully in mind these remarks when deciding

5 exactly what you will say in your opening statement. Thank you very much.

6 You can be seated again.

7 THE ACCUSED OJDANIC: [Interpretation] Thank you. I will try to

8 live up to that expectation.

9 JUDGE BONOMY: Now, I see that we've already dealt, to some

10 extent, with the next matter, which was agreement on facts. And we've

11 made some progress in relation to issues of law, at least the fact of the

12 law, as it were.

13 There is a Prosecution document circulating seeking agreement on a

14 very wide range of facts, some of which, Mr. Hannis, you must know in your

15 heart of hearts, there wasn't the remotest prospect of any agreement being

16 reached on. In relation to some you might as well have said: I plead

17 guilty.

18 Now, it's a bad starting point to have an agenda or a negotiating

19 document which goes way beyond any realistic expectation. On the other

20 hand, it's plain that there is material which is capable of agreement, and

21 we've recently received an indication on behalf of General Ojdanic that

22 there can be agreement on a number of issues. I haven't explored that in

23 detail to see just exactly what it amounts to. And there's a limit to

24 what we can do in the context of this hearing.

25 So my question to you is: Do you see a way forward on this at

Page 349

1 all?

2 MR. HANNIS: Well, I'm not sure, Your Honour, but I would report

3 to you that we had also received from Mr. Ackerman an e-mail on the 2nd of

4 June in which he agreed to a number of those 388 proposed agreed facts.

5 JUDGE BONOMY: But I have to say, Mr. Hannis, that to agree that

6 Kosovo is generally in the southern part of Serbia is a pretty pointless

7 agreement. That's a notorious fact that the Trial Chamber would take

8 account of anyway. I'm trying to address myself to productive agreement

9 on fact.

10 Now, do you see a way forward in any area by restricting this in

11 some way and trying to discuss it further or is it a dead duck?

12 MR. HANNIS: Your Honour, I think it's certainly lame, if not

13 dead. We have -- but -- and I take your point about some of these facts

14 seem to be extremely basic, but it's been my experience that sometimes if

15 you just get the ball started rolling and somebody can agree, yes, the

16 lights are on in the room, then you can move to something a little

17 controversial. That's part of our thinking in starting the way we did.

18 Now, I realise we probably weren't going to get all the way to the

19 end, as you mentioned, but I am generally an optimist and that was part of

20 what was going on.

21 JUDGE BONOMY: Now, there is a measure of agreement, and it may

22 now be some matters which are agreed by everyone, I don't know, but do we

23 have to compile now some sort of analysis of what has actually been

24 offered by each party?

25 MR. HANNIS: I think we do, as we said in one of the prior

Page 350

1 65 ters, Your Honour. If five of them agree to a fact and the sixth one

2 doesn't, it seems to me I probably need to present evidence to prove that

3 fact.

4 In addition to the particular responses of General Ojdanic and

5 General Pavkovic's to those proposed agreed facts in the Defence pre-trial

6 briefs, we did have some agreement to some things, but I do think we do

7 have to come up with a master chart to track all those and see if there

8 are anywhere we have all six agreeing to something.

9 [Trial Chamber and legal officer confer]

10 JUDGE BONOMY: Now, some -- some analysis has been carried out by

11 the Trial Chamber to try to identify any common ground in the various

12 things said in the pre-trial briefs and the other documents that have been

13 tendered indicating some basic agreement.

14 When this job was done about ten days ago, there was nothing to

15 which everyone had stipulated. It's now clear this morning that there are

16 matters on which everyone will agree, in particular the -- what the law

17 was at relevant times. There also have been some developments, including

18 the submission received in the last 48 hours. So this analysis can be

19 updated to reflect all that's been said by the parties so far.

20 If it would be of assistance, what I would propose to do is

21 circulate to you our understanding of what parties have offered to agree

22 as the starting point, the ball -- the start of the snowball that

23 Mr. Hannis hopes might roll into something more substantial. Now, does

24 anyone say this is pointless?

25 All right. Well, in that case, this document will be revised and

Page 351

1 will be circulated to you as our understanding at the moment of what's

2 agreed or virtually agreed by parties.

3 I suppose we should also reflect what even one or two parties have

4 said they will agree to, since it might encourage others, I suppose, to go

5 at least that far. But it would be in the context of expectation; in

6 other words, we would be expecting you to seriously consider whether you

7 can go that bit further, whether there are things, basic facts, that

8 aren't notorious so that we're going to take judicial notice of them

9 anyway, but basic facts that you can accept to avoid the leading of

10 unnecessary evidence, particularly material that you know is not, in the

11 end of the day, going to turn out to be controversial.

12 [Trial Chamber and legal officer confer]

13 JUDGE BONOMY: It's been drawn to my attention that there may even

14 be matters on which there's been further discussion among you and

15 potential agreement that we don't know about. And this would also form a

16 trigger for you to alert us to anything of that nature. So it will be

17 circulated with an accompanying order suggesting or proposing a date by

18 which you should, as counsel for the Prosecution and the Defence, report

19 on what has been possible, if anything, to agree on beyond the terms of

20 the document.

21 Now, that's a suitable point at which to adjourn. We will adjourn

22 now until 2.15.

23 We will resume at 2.15.

24 --- Luncheon recess taken at 12.29 p.m.

25 --- On resuming at 2.14 p.m.

Page 352

1 JUDGE BONOMY: Well, Mr. Hannis, that seems to take us to the

2 question of whether and to what extent you might be contemplating making

3 use of Rule 89(F).

4 MR. HANNIS: Yes, Your Honour.

5 Before I address that, I did want to introduce another member of

6 our legal team. Seated next to Ms. Moeller in the back is Patricia

7 Fikirini.

8 JUDGE BONOMY: Oh, yeah.

9 MR. HANNIS: I don't know if you can see her for the pillar.


11 MR. HANNIS: She will be joining us this afternoon and you'll be

12 seeing her during the trial, too.

13 JUDGE BONOMY: Thank you.

14 MR. HANNIS: Now, regarding 89(F), Your Honour, we have had a look

15 through our witness list with that in mind. I would indicate to you that

16 during next week's presentation, three of the witnesses that we are

17 calling next week we intend to use 89(F), at least in part. And when I

18 say that, Your Honour, it's our intention that we will have a written

19 statement of the witness that we propose to submit under 89(F), but we

20 will also be leading them in court, partly to expand on certain things in

21 their statement or to make connections between paragraphs in the

22 statement.

23 The reason for that, Your Honour, is some of these 89 statements

24 are basically their prior ICTY statement that was maybe made some time ago

25 or was made specifically for the Milosevic case and doesn't pertain maybe

Page 353

1 as directly to our case as we would like, and not having had a chance to

2 bring these people here and sit down and compose a complete new statement,

3 we propose to proceed that way.

4 JUDGE BONOMY: This is exactly what the Trial Chamber envisaged

5 you might do and hoped you would do and indeed hope that the Defence will

6 do in due course. And this applies to the 92 bis witnesses as well.

7 Because we've decided that all of them should be cross-examined, then it

8 seems to me wrong that the witness should be simply sat down and

9 cross-examined. But the bulk of the evidence is there in writing. It

10 helps us to prepare properly for the hearing. It helps the Defence to

11 prepare. It makes the cross-examination likely to be more focussed. But

12 the witness has to be made to feel comfortable. It would be quite wrong

13 to put a witness into the witness box and then subject that witness

14 immediately to an aggressive cross-examination. The aggressive

15 cross-examination may be necessary, but that witness should be given time

16 to feel comfortable in court.

17 So to me there is nothing at all inconsistent, and indeed I would

18 encourage the use of these written statements in combination with oral

19 evidence to the extent that the oral evidence is necessary.

20 MR. HANNIS: I'm very happy to hear that, Your Honour. We're

21 thinking along the same lines.

22 We did look at our witness list, and as I'm speaking at the moment

23 it appears that there are another 24 witnesses that we certainly intend to

24 use Rule 89(F) with. I don't know if you want me to name those persons or

25 give you a filing later on or indicate when we're submitting our weekly or

Page 354

1 monthly schedules that we intend to use 89(F).

2 JUDGE BONOMY: What I want is to devise a system now for dealing

3 with this, because it seems to me that the Defence should have the

4 material a reasonable time in advance of the witness giving evidence.

5 Now, that's not always been the case in the past in trials here.

6 A lot of material has been provided at very short notice in some

7 instances, and the Bench would welcome the material. It may be the

8 Defence need it earlier than the Bench. Desirable for me to have it the

9 night before rather than earlier, because there's not much I can do with

10 it getting it earlier, but the Defence may be able to do more productive

11 work on it by getting it earlier.

12 So do you have an idea of a sort of time-scale that you will

13 generally try to operate? With reference to next week, for example, what

14 do you see as being the time at which you're likely to give the Defence

15 the 89(F) versions of the statements?

16 MR. HANNIS: Well, partly that depends on to what extent it

17 contains new material. Your Honour, for example, Goran Stoparic is a

18 witness scheduled for next week who we propose to proceed in part through

19 Rule 89(F). He had given three prior statements to the OTP that relate to

20 matters in addition to Kosovo, and so we've taken portions from each of

21 those three statements that relate only to Kosovo and combined them into

22 one new statement. So it really contains nothing new substantively, but

23 it's just organised differently to focus primarily on Kosovo. We are

24 getting that document ERN'd today and hope to furnish it to them at the

25 end of the day, if possible.

Page 355

1 JUDGE BONOMY: That's very helpful. But I don't think you should

2 rely too much on the idea that the material has already been available.

3 It's been available in a different form, and it's going to greatly assist

4 the progress of this case if the form in which its going to be used is the

5 form that's given to the Defence at the earliest opportunity.

6 MR. HANNIS: I --

7 JUDGE BONOMY: Now, I'm delighted to hear that. Now I hope you'll

8 take the line that where you do have a statement well in advance of a

9 witness giving evidence you'll let the Defence have it.

10 MR. HANNIS: Yes, Your Honour. And I think in some cases what we

11 will be doing primarily the 89(F) statement is going to be the statement

12 that perhaps we propose for a 92 bis witness, their prior ICTY statement

13 in this case.

14 JUDGE BONOMY: Now, there is, I suppose, one issue that we mustn't

15 lose sight of and that is that you have certain disclosure obligations

16 which include disclosure of statements within time-scales which are

17 already passed. Now obviously if you prepare a statement in a different

18 form which is saying more or less what has been disclosed before, no issue

19 arises. But insofar as far these statements go into territory which has

20 not been disclosed before, then there will be issues over the permission

21 of the Chamber for that to happen. So you should be conscious of that.

22 MR. HANNIS: We certainly understand that, Your Honour.

23 I can tell my experience in another case where this happened, and

24 I think it's happened in other cases in this Tribunal. Witnesses arrived

25 here, and perhaps the last time they talked to anyone in the OTP about

Page 356

1 this was five years ago when their statement was taken. They may bring

2 documents that we've never seen before. They may talk about something

3 that they weren't asked. They may expand on something that was in a prior

4 statement.

5 In that other case where this arose, we took down that information

6 during the proofing session, we labelled a supplemental information form.

7 And if it were something that we proposed to try and lead in court, we

8 gave it to the Defence as soon as we had it in hand and then we left it up

9 to the discretion of the Court whether or not they would permit it because

10 it was so recent. In some cases, the solution was to give the Defence

11 additional time, to delay cross-examination, whatever the Court deemed

12 fair and appropriate in the circumstances, and we would propose to proceed

13 the same way here.

14 JUDGE BONOMY: All right. Thank you, Mr. Hannis.

15 Does any Defence counsel wish to say anything on this matter?

16 Yes, Mr. Lukic.

17 MR. LUKIC: Thank you, Your Honour.

18 What I would like to say is that at least our team of the Defence

19 would prefer to have the complete statements of the witnesses. We

20 appreciate the efforts of the learned friends from the opposite, but if we

21 talk about Mr. Stoparic, it's obvious that he was cross-examined on other

22 issues where his credibility was challenged and we would maybe like to

23 challenge his credibility through his testimony regarding some other

24 issues like Bosnia or Trnovo, and he doesn't -- is not maybe directly

25 connected with Kosovo but is connected with his credibility.

Page 357

1 So our position is that we would like to have complete statements

2 of this witness and every other witness.


4 MR. LUKIC: And then we can choose what to use.

5 JUDGE BONOMY: Well, I may have misunderstood, but I thought

6 Mr. Hannis was indicating that that material would already have been

7 disclosed.

8 Let's check with him.

9 My understanding - but please correct me if I'm wrong,

10 Mr. Hannis - is that you're saying that the complete statements would

11 already have been disclosed.

12 MR. HANNIS: Yes, Your Honour. There were three separate ICTY

13 statements from which this 89(F) statement is composed.

14 JUDGE BONOMY: So the material is already available, I think,

15 Mr. Lukic.

16 MR. LUKIC: What we would like to have is all his statements.

17 Also statements given to the Belgrade court.

18 MR. HANNIS: Those that we have have been disclosed. I think we

19 do have his statements from his testimony in a case in the Belgrade war

20 crimes prosecution court, and that has been disclosed.

21 MR. LUKIC: As far as I am aware, we don't have those statements.

22 JUDGE BONOMY: Well, I would invite you to get together after this

23 hearing to clarify that, but the will of the Prosecution is that you

24 should have them all.

25 MR. LUKIC: We'll contact after this session. Thank you, Your

Page 358

1 Honour.

2 JUDGE BONOMY: I simply make the concluding comment that I made

3 earlier but I think it's worth making again, that I hope the Defence will

4 endeavour to do something similar when it comes to presenting Defence

5 evidence, insofar as that turns out to be possible.

6 The next item is headed: Requirement for evidence in private or

7 closed session. There is a rule on this matter, which is Rule 79. It's

8 the will of the Trial Chamber to endeavour to conduct the whole of the

9 trial in public. Now, there are inevitable exceptions to that that will

10 arise along the way, but we will not readily depart from that. And the

11 rule, Rule 79, requires that when there is a closed session the Trial

12 Chamber shall make public the reason for its orders -- or the reasons for

13 its order. As a result, it will be necessary whenever you invite the

14 Chamber to go into what you describe as private or closed session for you

15 to explain why.

16 Now, I appreciate that sometimes a full explanation requires you

17 to enter into the area that has to remain private. So within reason you

18 must state why so that we can point to the reason that we have for

19 granting the application.

20 My understanding of this rule is that closed session is a form of

21 evidence in which the public is entirely excluded; they can neither hear

22 nor see what's going on because these blinds also come down. And the

23 modified version of that, which is described as being excluded from all or

24 part of the proceedings, has come to be known as private session and

25 generally involves the blinds remaining up so that the outside world can

Page 359

1 see what's happening without hearing what's going on, and that's how we

2 will apply these terms in the conduct of the trial.

3 That takes us to may turn out to be the most controversial part of

4 this agenda, which is Rule 73 bis. I think there are too many items

5 probably listed. The first one I don't think arises here. I don't think

6 we're in a position at this stage to call upon you to shorten the

7 estimated length of examination-in-chief for some witnesses, but, as you

8 know, the Trial Chamber has an inherent power to do that at any stage in

9 the proceedings, and that's one power that won't be exercised at this

10 stage. And similarly, the last one listed, to direct the Prosecution to

11 select counts on the indictment which the -- that doesn't arise in this

12 type of case. It arises in different situations. So that -- you can take

13 your pen through that. The issues are therefore those in 73 bis (C)

14 and (D).

15 It might help if I give you -- I'll say something about time; it

16 might help focus the debate on the other issues. I think the history of

17 the Tribunal probably drives you to the conclusion that some limitation on

18 time will be necessary to reach our goal in a reasonable time. However,

19 I've had an opportunity over almost two years now to experience working

20 with the personnel who are involved in this case, and my initial

21 inclination with which I think my colleagues are prepared to go along at

22 my persuasion, is to let it run and see what happens and to trust you, as

23 responsible counsel, to keep this case within bounds. But I recognise it

24 may be necessary, as we move along, to make orders that sort out any kinks

25 that may crop up.

Page 360

1 The Appeals Chamber has recently issued a judgement which approves

2 an approach, a broad-brush approach, that allows the Defence en bloc the

3 equivalent time to cross-examine that the Prosecution has. Let's wait and

4 see if it's necessary to take that sort of action in this case and let's

5 see if we can't actually manage to do it in a responsible way that

6 recognises that for some witnesses a bit more -- or maybe even

7 substantially more is required and for other witnesses, not even as much

8 is required.

9 Now, if anyone dissents from that, please tell me now. Okay --

10 Oh, Mr. Hannis.

11 MR. HANNIS: No, Your Honour. I -- I don't dissent. Actually,

12 I'm very happy about that.

13 The point I wanted to make, it relates to scheduling of witnesses.

14 If there were -- if we had some idea of an outward limit on

15 cross-examination, as a general rule it would help us in determining how

16 many witnesses we should have in hand for each week. And I understand

17 this may be something that we'll get into as we go along and we'll get a

18 feel for, okay, well, if it's Mr. So-and-so is cross-examining and he says

19 it's going to take an hour, I should count on two; and if it's so-and-so

20 and he says an hour, that's an hour; and if so-and-so says two, I can take

21 50 per cent.

22 JUDGE BONOMY: There's also the related point that you've made

23 that because you lead evidence in writing there may be a bit of an

24 imbalance created in that and inevitably the cross-examination will take

25 longer than the time that you've take. I can see that. I also think that

Page 361

1 there may be quite a difference between the proportion of time that the

2 Defence need for cross-examination and the proportion of time they need to

3 present their own case. And it's impossible at this stage to make

4 sensible judgements about those matters.

5 I don't know -- I really don't know the circumstances of any other

6 current trial with which this -- you could attempt to compare this. All I

7 know is that in this case we're all talking about the same crime base,

8 whereas we may be talking about quite discrete evidence going to criminal

9 responsibility, although there may be a measure of overlap, a significant

10 measure of overlap because of the joint criminal enterprise. So I at the

11 moment can't come to any firm view about time.

12 But I think initially, Mr. Hannis, you're probably going to have

13 to err on the side of caution and have more witnesses than even your

14 better judgement dictates you should have available. You're going to have

15 a week, roughly, to experience it. In the second week of the trial -- it

16 may be a bit longer than the average week, too. So after a couple of

17 weeks, you might be in a bit better position to judge. I don't think I

18 can give you more guidance on that at the moment.

19 MR. HANNIS: I understand, Your Honour. And I guess I'm sort of

20 trying to foreshadow the possibility that there may come a week where on

21 Friday morning at 10.00 I discover that we've finished with all the

22 witnesses we had for that week because things went faster. I would ask

23 for some patience from the Court. And perhaps if that does occur, on

24 those days we could deal perhaps with outstanding administrative

25 housekeeping matters which always seem to arise.

Page 362

1 JUDGE BONOMY: And hopefully if that does happen, it will be an

2 indication that we've gotten ahead of ourselves.

3 MR. HANNIS: I hope so, too.

4 JUDGE BONOMY: So that diverts attention to the other methods that

5 are available for bringing the trial itself within narrower bounds than is

6 presently -- than are presently heralded.

7 MR. HANNIS: Just one thing in that regard, Your Honour. Perhaps

8 when we provide the Defence a list of our witnesses for the next week or

9 the next two weeks, in some cases if there's a particular witness they

10 think may require extra cross-examination because it has special

11 pertinence to their accused or some particularly controversial issue, if

12 they could advise us of that, to the extent possible, that would help me

13 with my scheduling.

14 JUDGE BONOMY: Thank you.

15 Well, I think the way to address the other methods that are open

16 to the Court is perhaps to invite Mr. Visnjic to address -- yeah, it was

17 your motion in relation to the number of crime sites. Perhaps you would

18 wish to address the Chamber on how we might approach that issue.

19 Mr. Sepenuk.

20 MR. SEPENUK: Yes. Thank you, Your Honour.

21 Frankly, Your Honours, we had a little bit of a debate in the

22 Defence team as to whether to file our suggestion at all because Your

23 Honour at the last 65 ter conference had already invited the Prosecutor to

24 seriously consider this question and to come up with some ideas, perhaps

25 today, in terms of limiting the number of crime sites in the indictment.

Page 363

1 But we thought ultimately that Your Honour wouldn't mind if we joined you

2 in the invitation to the Prosecutors, because that's all we meant by that

3 suggestion that we filed.

4 We -- there actually, there is one error in that motion. It talks

5 about 32 separate crime sites; that's for the deportations, the alleged

6 deportations, and murders. There's actually 38. If you go through the

7 indictment, there are 38 separate incidents alleged of deportation and

8 murder in various parts of the indictment. We came up with a ten figure.

9 How did we come up with a ten figure? Frankly, Your Honour, we plucked it

10 out of the air. It's simply a basis for discussion. As I understand the

11 rule, the Prosecutor is invited to consider this and because it's a very

12 serious and important matter for the Prosecutor, and I would think that

13 the Prosecutor might -- surely has some ideas on what at least the

14 irreducible minimum would be for the presentation of their case, which

15 perhaps they will have -- with Your Honour's guidance, perhaps they'll

16 enlighten us with that this afternoon. But we didn't -- that ten doesn't

17 have any magic to it. We're trying to come up with some figure that we

18 think might be reasonable.

19 JUDGE BONOMY: I think I have allowed a significantly larger total

20 of actual crime sites or locations, something approaching the high 70s.

21 Can you help me in how we appear to have -- I know you've had some

22 discussion about this.

23 MR. SEPENUK: Yes.

24 JUDGE BONOMY: Where is the difference in our respective

25 approaches to this?

Page 364

1 MR. SEPENUK: Yes. We discussed this with -- Mr. Visnjic and I

2 discussed this yesterday briefly with Mr. Boas, and we simply went to that

3 part of the indictment, for example, which alleges the deportations in

4 Count 1. And we started with number (a) -- by the way, I'm still a rookie

5 in this case, so forgive my pronunciations here. But the crime sites

6 listed (a) -- (a) and then little (i), we went through all of those, and

7 then we went through all of the crime sites mentioned in the murder counts

8 of the indictment. And unless my mathematics are woefully incorrect, we

9 came up with a total of 38 separate incidents, as alleged in those

10 portions of the indictment.

11 [Defence counsel confer]

12 MR. SEPENUK: To be more precise, Your Honour, for example in

13 72(a) in the deportation count, in the village of Celina is mentioned. In

14 72(a)(i) the village of Nogavac is mentioned. In (b) it's Pirane, and so

15 on. That's how we came up with the 38 figure.

16 JUDGE BONOMY: Your approach to this is to invite the Prosecution

17 to simply identify ten sites that they would wish to lead evidence about

18 as representative of the indictment as a whole and confine the crime base

19 part of the case to that?

20 MR. SEPENUK: Yes, Your Honour. But I have to say in all

21 frankness that -- again, the ten -- it could have been 15, it could have

22 been 20. I mean, really, I think it would be unfair to burden the

23 Prosecutor at this point with a figure of ten. I mean, that's at least

24 the way the Ojdanic team feels about it. Until they've expressed

25 themselves. And needless to say, if they can take ten crime sites and

Page 365

1 make those representative of the case as a whole, obviously under Your

2 Honours' guidance, then I think that would be a very fine way to proceed.

3 But I -- again, without having heard the Prosecution's position on

4 this, I hesitate to have any kind of certainty on this issue because it's

5 a very complex issue and it goes to the heart of what the Prosecutor has

6 to present. And I think in fairness to them -- and all I'm doing, Your

7 Honour, is picking up on what you've already said at the 65 ter

8 conference. And, again, all we did, all the Ojdanic team did was join in

9 your invitation to the Prosecutor to come up with something a lot more

10 reasonable than the rather staggering array of crime sites that we have to

11 face in this indictment.

12 JUDGE BONOMY: Between just the 72(a), if you just look at that --

13 it's the very first one, just as an example, I have Celina and Prizren, I

14 suppose two crime sites in the one -- well, maybe Celina is the only crime

15 site, but Prizren, as you'll see, is mentioned. And then in (i), 72(a)(i)

16 I've got Nogavac, Bela Crkva, Brestovac, and Velika Krusa.

17 Now, you've treated 72(a)(i) as really one, have you?

18 MR. SEPENUK: Yes, yes. And I suppose, Your Honour, if we were

19 at -- went at it with great mathematical precision, you're absolutely

20 right, and we'd hit every single thing mentioned in every part of the

21 indictment.

22 38 was just sort of our way of saying that there's 38 different

23 paragraphs alleged regarding crime sites. And again, ten was also a

24 figure used simply as a basis for discussion and to get the issue on the

25 table.

Page 366

1 JUDGE BONOMY: All right. Thank you, Mr. Sepenuk.

2 Now, does any other Defence counsel wish to say anything before I

3 ask Mr. Hannis to reply?

4 Mr. Hannis.

5 MR. HANNIS: Thank you, Your Honour.

6 I would first suggest to the Court that this is not a matter that

7 necessarily lends itself easily to a mathematical calculation. I would

8 indicate that my count of the sites and incidents we are talking about is

9 different from either of the two figures that were mentioned before, and

10 I'll explain how I did my counting, if I may, Your Honour.

11 In my view, for deportation -- and I should say that deportation

12 is a crime that you can't necessarily limit to one site because on the

13 evidence you'll hear in this case somebody in Celina village was marched

14 to Prizren, that they were temporarily located somewhere, later on they

15 were removed from there, marched down the road, and eventually out of the

16 country.

17 So we have these operations where the forces are moving through an

18 area, and we might talk about five or six villages on a certain day. And

19 one witness may be able to speak to five or six because he saw what

20 happened in front of him, he left his and went to a third, et cetera.

21 By my count we had 13 municipalities that we referred to as

22 deportation municipalities. And I counted within those 13 municipalities

23 20 separate incidents, and that's basically a count of the paragraphs,

24 paragraph 72, 72(a), et cetera, is how I got my numbers.

25 And then for the killing sites -- we referred to killing sites or

Page 367

1 killing incidents. For killing sites, we had 11 separate sites with 14

2 incidents. And the way I came to that count, Your Honour, was because in

3 the municipality of Kacanik we listed four separate killings on four

4 separate dates, and that's why we have 14 incidents for 11 sites.

5 I should say also there's some overlap between the alleged

6 deportation sites and the killing sites. Of the 11 killing sites, three -

7 Racak, Padaliste, and Dubrava prison - do not have a related municipality

8 site alleging deportations.

9 So reversed of our 14 -- or of our 13 municipalities involving

10 deportation, six of them had related killing sites, seven have no related

11 killing sites alleged in connection with them.

12 We did hear the comments of your principal Legal Officer in the

13 65 ters, indicating that we might anticipate an invitation from Your

14 Honours to consider reducing our case. And we understood -- we saw the

15 Defence motion. We were -- I guess we were expecting this perhaps to

16 proceed a little bit differently, but it is difficult, Your Honour, to

17 pick a number that will necessarily be representative of all the crimes.

18 JUDGE BONOMY: Can I clarify one thing with you. You say that

19 three of the sites - that's the killing sites - don't have related

20 deportation sites, but when you turn to the deportation sites you say that

21 seven of them don't have related killing sites.

22 Now, it's difficult to match these figures in my mind. Can you

23 clarify the relationship there for me?

24 MR. HANNIS: Yes, I can, because, for example, Orahovac

25 municipality, which is one of our alleged deportation sites, it has two

Page 368

1 separate killings sites: Bela Crkva and Mala Krusa.

2 JUDGE BONOMY: Right. Right, okay.

3 MR. HANNIS: And Djakovica has two killing sites.

4 JUDGE BONOMY: Well, doesn't what you've just said point up an

5 important factor? This case would be seen as, at the very least, a case

6 of ethnic manipulation, if it's not ethnic cleansing. So deportation and

7 forcible transfer is an essential ingredient of the case. You then tell

8 me that three of the killings are not -- do not seem to be related to

9 deportation events. Is there not something to be said for them not

10 forming part of the case?

11 MR. HANNIS: Certainly there's something to be said for that, Your

12 Honour, but I don't think that necessarily leads you to an inescapable

13 conclusion.

14 Part of our argument in this case is that some of the killings

15 occurred to cause terror in the community and to cause people to leave.

16 You don't have to kill them all if by killing a few you can get the rest

17 to leave.

18 JUDGE BONOMY: But one of the things -- one of the possibilities

19 here is that the position is reviewed at a later stage. You have the

20 power of the right to come back and ask the Chamber to review this

21 decision, depending on developments in the case. So it's not a final

22 decision if we make it today.

23 But I wonder if there isn't something to be said for looking at

24 removing these three for the moment and seeing how things go in the

25 presentation of the case, because it inevitably won't go quite as well as

Page 369

1 you hope. But if it does go well or even better than you hope, then there

2 would be plenty of scope for you to apply to reintroduce them.

3 MR. HANNIS: Well, I understand that, Your Honour. I guess as a

4 prosecutor, and you understand an old prosecutor who has been dealing with

5 carrying the burden of beyond a reasonable doubt for many years, it turns

6 us into Nervous Nellies, if you will, and we're always anxious that we

7 need more than maybe we really do. And I can tell you that in the course

8 of this case as things go along, we would be keeping a close eye of how

9 things were developing in our view.

10 If we felt that after presentation on five or six municipalities

11 we felt confident that we had established a pattern, then we would

12 certainly be bearing in mind that now maybe we don't need to proceed with

13 those that were scheduled later on in our case. And I certainly would

14 rather proceed that way, with keeping everything in and having a chance to

15 reduce it later, rather than having it reduced now and then asking you to

16 put it in later.

17 One of my reasons for that, Your Honour, if I were on the other

18 side of the room as Defence counsel and we had proceeded in that fashion

19 and the Prosecution decided that he needed more and asked you to reinstate

20 or let us have some of the old counts back in, at Defence table I would

21 say, well, Your Honour, I thought those were gone. And those first ten

22 witnesses, I didn't ask any questions related to that and I would have if

23 I had known. And then we have to decide whether or not we need to bring

24 those witnesses back to be cross-examined about those things. So that's a

25 practical concern I have about proceeding in that fashion.

Page 370

1 One other thing I want to indicate to Your Honour. In that

2 regard, given the comments that we got during the 65 ter and in light of

3 the Defence motion asking you to invoke Rule 73 and call upon us or to fix

4 the number of sites at some number lower, we have scheduled certain

5 municipalities at the end of our evidence in light of what we were told

6 were areas that you saw to perhaps be outside the temporal core of our

7 indictment and perhaps outside the principal theory of our case.

8 JUDGE BONOMY: Well, the two I mentioned or suggested should be

9 mentioned were Racak and Dubrava prison. And certainly in relation to

10 Prizren, it's difficult to see how that fits the pattern, albeit there is

11 activity in the neighbourhood. Racak of course is divorced temporally

12 from the other events.

13 But anyway, these -- I'm very grateful for your comments,

14 Mr. Hannis. Thank you.

15 [Trial Chamber and legal officer confer]

16 [Trial Chamber confers]

17 JUDGE BONOMY: Now, if -- if the Trial Chamber is minded to

18 determine that the trial should proceed on crime sites representative of

19 the conflict -- representative of the indictment as presented, and to

20 decide that on the face of it that objective can be achieved without

21 proceeding in relation to Racak, Padaliste, and Dubrava, the Dubrava

22 prison, does any Defence counsel have any submission to make to the

23 contrary, bearing in mind that depending on how the case develops there is

24 always the possibility of re-introduction and that even the Bench itself

25 may feel not in a position to fully reflect events because of the way the

Page 371

1 evidence goes without looking again at these incidents. But on the face

2 of it, as presented to us at the moment, it does seem that the case can be

3 adequately presented on an entirely complete and representative basis

4 without these three events.

5 [Trial Chamber confers]

6 JUDGE BONOMY: Well, the decision of the Trial Chamber - and this

7 will need to be issued in writing for the avoidance of any doubt and for

8 complete clarity - will be to confine the trial to a varying number of

9 events, varying between the low 30s and the high 70s, but excluding these

10 three particular ones, which will be more specifically defined in the

11 order, always recognising the further provisions of Rule 73 bis (D), which

12 could result in these ultimately nevertheless becoming part of the trial.

13 Now, our inclination, in light of coming to that view, is that

14 there's no need to limit the number of witnesses that can be led in the

15 case, unless someone has any particular submission to make to the

16 contrary.

17 All right. That, I think, completes the consideration of 73 bis

18 and takes us to the issues concerning the conduct of the trial.

19 MR. HANNIS: Your Honour, before we go --

20 JUDGE BONOMY: I'm sorry --

21 MR. HANNIS: -- on to that, may I ask a question or make a

22 comment?

23 JUDGE BONOMY: Yes, please.

24 MR. HANNIS: With regard to your decision, I guess I have a

25 question about what "representative" means in this context, representative

Page 372

1 of the case and what's -- may I ask what the Trial Chamber's view of that

2 is or your definition.

3 JUDGE BONOMY: We consider that the case that you seek to present

4 based on deportations, killings, and persecutions is adequately covered by

5 the indictment without these three events being part of the trial, and

6 that's not to say that they are also -- that they in some way are not

7 representative of the case. But on the face of it they're the clear

8 examples of events which aren't as representative of the case that you're

9 presenting.

10 MR. HANNIS: I understand that --

11 JUDGE BONOMY: -- as the rest are.

12 MR. HANNIS: I think I understand and I understand how you reached

13 that conclusion.

14 My other question is reading Rule 73 (D) indicates that the Trial

15 Chamber can, first of all, invite us to reduce the number of counts which

16 we've decided doesn't apply in this circumstance. The other is that you

17 may fix a number of crime sites or incidents --

18 JUDGE BONOMY: It's because that has to be done in a positive way

19 that I will be -- we will be issuing a written determination.

20 MR. HANNIS: I agree. I don't read from the rule itself. It says

21 you may fix a number of sites but not necessarily the particular sites.

22 Not that I necessarily have any quarrel with the choices that you've made,

23 Your Honour, but I just note that from my reading of the rule.

24 JUDGE BONOMY: Well, that will be the way that we will deal with

25 it.

Page 373

1 MR. HANNIS: Fair enough.

2 JUDGE BONOMY: But it's pointless -- well, are you suggesting --

3 if you're suggesting that we don't have power ourselves to identify the

4 sites, that that provision only allows us to identify a number and leave

5 it to your discretion, then I would need to hear more from you on that.

6 MR. HANNIS: Well, Your Honour, I think a strict reading of the

7 language reads that way, but as a practical matter in real life, I don't

8 think that's a very -- a very good rule.

9 For example, you know, we have 13 sites, and I say, okay, you can

10 tell me to lead ten. Well, I can take the three sites that had three

11 victims each and it really wouldn't amount to a very big reduction in the

12 case, for example. So I think what you've chosen to do is -- makes more

13 sense, but I telling you that's my reading of the rule.

14 JUDGE BONOMY: I think you're reading -- your interpretation would

15 be stronger if the word was "the number of crime sites or incidents which

16 are reasonably representative of the crimes charged." When you say "a

17 number," then that means there's an element of discretion involved in

18 identifying which ones. And it wouldn't, I think, make much sense to have

19 a rule that left it to -- entirely to the Prosecutor to do that and then

20 leave everyone dissatisfied that in fact he hadn't chosen a representative

21 sample.

22 I think if that was the interpretation that was favoured here,

23 then I would regard it as a two-stage exercise, that the next stage would

24 be for you to tell me the sites that you think are reasonably

25 representative of the crimes charged, and we would then decide whether to

Page 374

1 accept that version or not.

2 Now, if you want to go through that exercise, then perhaps we

3 should. But if on the other hand you see sense in what we're doing, then

4 it may not make any sense to go through another chapter.

5 MR. HANNIS: No, Your Honour. I think in the particular

6 circumstances I do see sense in the choices you have made. But I do want

7 to indicate that, you know, part of our problem with certain aspects of

8 Rule 73 are -- is that we see it perhaps as being ultra vires of the

9 Statute and allowing the judiciary to intrude in the area of what should

10 be the Prosecution's bailiwick. And the Prosecution should be in the best

11 position to determine what's representative of their case.

12 That's just a general proposition I'm making, Your Honour, and not

13 disagreeing with what you've done in this particular situation.

14 JUDGE BONOMY: If you're telling me that the decision is likely to

15 be challenged, then obviously we might approach it in a different way, but

16 you must have got the favour by now, Mr. Hannis, that practicality is

17 fairly high in my criteria for applying rules.

18 MR. HANNIS: I have seen that, Your Honour, and I respect that and

19 admire that. And as far as whether there would be any decision by our

20 office to appeal a decision on this matter, I can't tell you at this

21 point. It's something we would have to have discussions about. But I see

22 the reasons for you making the choices you've made, and I'm ready to

23 proceed with the rest of the hearing. Thank you.

24 [Trial Chamber and legal officer confer]

25 JUDGE BONOMY: Just one other issue's been raised with me,

Page 375

1 Mr. Hannis. Your witnesses next week --

2 MR. HANNIS: Exactly, Your Honour.

3 JUDGE BONOMY: -- do deal with Padaliste, but they must be wider

4 than that.

5 MR. HANNIS: That particular witness is pretty much the Padaliste

6 killing site, Your Honour.

7 JUDGE BONOMY: The third witness?

8 MR. HANNIS: Pardon me?

9 JUDGE BONOMY: Which witness, the third one?

10 MR. HANNIS: Imeraj.

11 JUDGE BONOMY: Imeraj, yeah.

12 MR. HANNIS: Yes, Your Honour. And in light of the 92 bis

13 decision, I think the first couple of witnesses at the beginning of the

14 week in August when we return after the break also relate to Padaliste.

15 That schedule wasn't made in anticipation of this event, Your Honour, I

16 can promise you.

17 [Trial Chamber confers]

18 JUDGE BONOMY: Well, Mr. Hannis, all I can do in the circumstances

19 is invite you to review your witness list as expeditiously as you can and

20 decide what changes you can make to make things progress smoothly.

21 MR. HANNIS: I think we have plenty of time to do something about

22 the first week in August. My concern is next week; it may be difficult.

23 JUDGE BONOMY: All right. Well, do your best, please.

24 MR. HANNIS: We will.

25 JUDGE BONOMY: Mr. Visnjic.

Page 376

1 MR. VISNJIC: [Interpretation] I would also like to ask if we can

2 have this amended list from the Prosecution so we don't have to wait for

3 the files, so that we can have a look at the amendments as soon as

4 possible.

5 JUDGE BONOMY: I'm sure Mr. Hannis will take note of what you say.

6 Now, the last section of the agenda is certain practical issues

7 relating to the conduct of the trial. Through the e-court training

8 recently, we've all learned that most documents can be produced

9 electronically. This Chamber is going to try to work electronically as

10 far as possible, but undoubtedly there will be documents of odd shapes and

11 sizes which need to be here in hard copy. And you may, indeed, find it

12 more convenient for the presentation of your case, your examination or

13 cross-examination, to have hard copy in the hands of the Judges. It's a

14 matter for you to determine. I'm just anxious to ensure that thought's

15 given to these issues before you come into court and we don't have

16 unnecessary interruptions through the absence of necessary material.

17 The second matter listed was the arrangement for intermitting

18 witnesses. Do you find that one convenient, Mr. Hannis?

19 MR. HANNIS: Yes. That's agreeable with us. We would indicate --

20 we would ask that Your Honour allow us flexibility in the sense of

21 scheduling witnesses two months out that there will be a lot of changes in

22 the course of time. But we will try to give as much notice, particularly

23 for experts or significant insiders, internationals, et cetera.

24 JUDGE BONOMY: Doing it monthly should allow you plenty of

25 flexibility to re-arrange and plenty of time for others to be alerted to

Page 377

1 any changes.

2 MR. HANNIS: Yes.

3 JUDGE BONOMY: Thank you.

4 MR. HANNIS: Related to that, Your Honour, again is the issue of

5 it will take us a while, I think, for -- for me to get a feel for how long

6 cross-examination will be in order to know how many witnesses and how long

7 ahead of time they need to be here.

8 JUDGE BONOMY: On the -- the next subject was procedure for

9 cross-examination. That simply is a reflection of something we discussed

10 earlier at either a Status Conference or a 65 ter conference. The idea

11 that Defence counsel would try, as far as possible, to identify a lead

12 counsel in relation to matters and others would endeavour to keep their

13 cross confined to particular additional factors that might affect their

14 respective client or they feel have been overlooked by the lead counsel

15 appointed.

16 Now, you did indicate to me at the time that you thought that

17 would be a way of proceeding. Is that still your plan or has that plan

18 changed?

19 Mr. O'Sullivan.

20 MR. O'SULLIVAN: Yes. We've -- as we previously discussed, that

21 is our intention, to proceed in this way -- in one of two ways: The

22 normal order of cross-examination would follow the order in the

23 indictment, but if there is unanimous agreement among us to change that

24 order, we would announce that to the Chamber immediately

25 examination-in-chief. That decision would be made outside the court, so

Page 378

1 no time would be wasted with consulting -- it would be prearranged. On

2 the clear understanding that each and every accused retains the right to

3 cross-examine every witness.

4 JUDGE BONOMY: Previously in a domestic context when I've been

5 faced with this situation, there's been some concern that by changing the

6 order it can cause prejudice to an accused. That only happens, however,

7 where there's a conflict of interest, and at the moment it's not

8 immediately obvious that there is a conflict of interest among the

9 accused, although there may be one -- I think I'm wrong in saying that.

10 There may be one potential conflict.

11 If that were to be in your minds, I would understand why you would

12 stick rigidly to the order and let each counsel indicate, in order, his

13 position. But insofar as you're able to agree no conflict arises and you

14 have a common interest, then I would welcome a cross-examination -- it's

15 going to help us as well if you concentrate your efforts in one person.

16 So that's very helpful.

17 You'll bear in mind also the discussion at yesterday's --

18 yesterday morning's meeting about the translation of material, both for

19 cross-examination purposes and for the presentation of the Defence case.

20 If you know now that you've got material which will need to be translated

21 for some -- for some stage of the trial, then it should be in the hands of

22 CLSS now so that they can do it at their leisure, as it were. They

23 indicated they do get gaps in the schedule and then they get overwhelmed,

24 and they want to make use of the gaps. So this is a case, I think, in

25 which assistance could be given to them by the production of material at

Page 379

1 an early stage for translation purposes.

2 And if there are translation problems a year down the line, the

3 Trial Chamber will probably want to know why, bearing in mind the time

4 that we've got and the notice that we've had of the system that's

5 operating.

6 MR. HANNIS: Your Honour.

7 JUDGE BONOMY: Yes, Mr. Hannis.

8 MR. HANNIS: In relation to cross-examination, may I ask what the

9 Trial Chamber's vision was about re-examination by the Prosecution. Time

10 limits?

11 JUDGE BONOMY: Well, I think it's consistent with encouraging you

12 to restrict your examination-in-chief and to use written material where

13 appropriate to recognise that it may be necessary to spend more time from

14 time to time in re-examination just to be fair. So I had envisaged that

15 we might find that the concentration in this case in relation to a large

16 number of witnesses would be in cross and re-examination.

17 [Trial Chamber confers]

18 JUDGE CHOWHAN: Re-examination is to be allowed wherever it's

19 necessary. I mean, that's something to be understood.

20 JUDGE BONOMY: Mr. Aleksic, the particular position of

21 Mr. Pavkovic in the absence of Mr. Ackerman, I undertook that I would

22 raise the question of the Prosecution trying to avoid the leading of

23 evidence that would be particularly controversial for Mr. Pavkovic's case

24 during that period. Now, that period may be extensive. It could extend

25 up to the end of August, I think. So let's hear what Mr. Hannis has to

Page 380

1 say on that.

2 MR. HANNIS: Your Honour, we were previously aware that

3 Mr. Ackerman wouldn't be here for the first week of July and -- of the

4 trial. And we changed one witness because of Mr. Ackerman's concern. Now

5 we understand it will be a longer period of time. I haven't looked at our

6 list to the end of the month of August to see if we put on somebody that

7 might cause a problem or be, in his view, particularly controversial. We

8 will try and adjust to that, but as it goes on longer it becomes more and

9 more difficult.

10 I would indicate that some witnesses may speak in general about

11 the VJ or the army, which certainly relates to General Pavkovic. But his

12 superior and his subordinate are here with counsel who will be

13 cross-examining, and Mr. Aleksic is here, so ...

14 JUDGE BONOMY: I take that point, though, but I think what you

15 should do, Mr. -- bearing in mind that this is actually six separate

16 trials, albeit they're rolled together for practical reasons, I think you

17 owe it to Mr. Aleksic in the situation to discuss directly with him the

18 plans for the leading of evidence to enable him to make any specific

19 comments he wishes to make about individual witnesses perhaps being

20 programmed differently, so that at least you can take account of that. I

21 acknowledge that at the end of the day it's for you to decide. But I

22 think Mr. Ackerman will certainly be reassured if he knows that there's

23 going to be this personal exchange that will ensure that the comments that

24 are made on behalf of Mr. Pavkovic are taken account of before you

25 actually finalise the list.

Page 381

1 MR. HANNIS: We have borne that in mind and will continue to do

2 so. And it's not our intention to call any witness in the month of August

3 who had 20 face-to-face meetings with General Pavkovic.

4 JUDGE BONOMY: Thank you, Mr. Hannis. There is such a witness, is

5 there?

6 MR. HANNIS: I was thinking, I wonder if we have one.

7 JUDGE BONOMY: Now, Mr. Fila, that takes us to two items intimated

8 by you.

9 Can we deal, first of all, with the -- what's called the selection

10 of evidence. You mentioned it briefly earlier as an issue that you wanted

11 to address the Chamber on. I think it was relating to whether hearsay

12 evidence should be taken account of where there was some direct evidence

13 that could have been brought.

14 MR. FILA: [Interpretation] Mr. President, Your Honours, since I've

15 been doing this job, this question has been raised and I think the

16 generations to come after me will deal with this question. It's a very

17 interesting question, hearsay evidence, and I am not one of the people who

18 believe that such witnesses should not be heard.

19 I personally belong to the French school, and that's where I

20 studied and so on, and there was this example. If a house is on fire and

21 if a person burning in a house says, I was burned by such and such a

22 person, of course this person cannot be heard because he never survived.

23 So of course there is going to be a hearsay witness who's going to say

24 that such and such a person was burned. So this is from the second year

25 of law school, this example that I'm referring to.

Page 382

1 So we've got something similar. I'm expressing my concern. The

2 Office of the Prosecution and others often in the documents that they

3 present, you see a statement: I talked to such and such and such and such

4 a person, that's what they said to me, and that suffices, as far as the

5 Prosecution is concerned, whereas the survivors are alive and well.

6 Let us take, for example, Mr. Dimitrijevic. They are invoking

7 what he said. He held the same position like Mr. Vasiljevic.

8 Mr. Dimitrijevic is making statements to the press in Belgrade, he's

9 strolling around Belgrade, nobody's calling him as a witness, they're just

10 calling Vasiljevic.

11 At one meeting I mentioned Mr. Philip Coo. He is referring to

12 some records of this so-called Joint Command, and you never called the

13 person who actually wrote those records who has a name and surname. He's

14 a general, he's in Belgrade. No one called him, either in the Milosevic

15 case or in this case, and I really do not understand why.

16 I'm sorry, I've been going on forever, and I know that there is

17 limited time only.

18 I'm expressing the following concern. We want to have a public

19 trial indeed; we don't want to evade that. You said it was the intention

20 of this Chamber to have this trial be carried out in public as much as

21 possible, to have the smallest number of private sessions. So let us call

22 a person who has what he has to say, rather than bring in a clerk or

23 somebody else who just heard about something, whereas this person is alive

24 and well and can be made available. After all, the Court can also resort

25 to subpoenas. So let us hear exactly who said what.

Page 383

1 This takes us nowhere. Let us simplify things. Let us just call

2 the investigators of the Prosecution. Let them tell us who they

3 interviewed, who they heard, and what they heard from them, and then the

4 trial will be over in three or four days. I understand that if you have

5 people that you cannot reach for some reason -- well, in that case, I

6 fully accept the right of my learned friend to call hearsay evidence or if

7 somebody died, like Rugova, or, for example, if Mr. Clark is not allowed

8 to testify because of his own state, and then the French Ambassador,

9 Mr. Keller who said this, who said that, but I never heard Keller say what

10 he had actually said.

11 So there are objective things that have to be taken into account.

12 However, when we have a person who is alive and well, why not bring him

13 in? And why can we not see whether he actually said that and, if so, in

14 what context. And, you know, it's 1999, whereas now is the year of 2006,

15 so things fade from one's memory.

16 Anyway, whatever this Trial Chamber decides, I will be satisfied,

17 but in all trials I've had so far there was that problem, and I claim that

18 generations to come will have to deal with this. What is the value of

19 that kind of evidence if the actual person is still accessible who can

20 speak for himself? That's what I meant.

21 Thank you. That's the question that I wanted to ask the Trial

22 Chamber to look at. We can reach any kind of agreement, but we simply

23 have to know what the rules are going to be.

24 Thank you. That is what I wish to say.

25 JUDGE BONOMY: Any Defence counsel wish to add anything to that?

Page 384

1 Mr. Sepenuk.

2 MR. SEPENUK: Yes, it might be a little premature at this point,

3 Your Honour, but I was intending to raise a similar issue really with

4 respect to the two witnesses Sandra Mitchell and Fred Abrahams who are

5 going to be testifying next week. And the reason I was going to bring it

6 up is due in no small part to comments made by Your Honour on March 30th,

7 2006 at a 65 ter conference. I wasn't in the case at that point, but I do

8 have a transcript of the conference.

9 And you'll recall, Your Honour, that Fred Abrahams and Sandra

10 Mitchell -- Abrahams was with Human Rights Watch, Sandra Mitchell is OSCE,

11 and they both -- their organisations have written books which Mr. Hannis

12 and his colleagues want to introduce, I believe, into evidence, one called

13 "Under Orders," and one called "As Seen, As Told." Rather extensive

14 reports on the situation in Kosovo from March to June of 1999.

15 And, Your Honour, with your permission, read very briefly, what

16 Your Honour said at the 65 ter conference. You said: "Now, the bulk of

17 his evidence," meaning Abrahams, "is hearsay evidence. He's recounting

18 what other people have gathered as information from their contact with

19 witnesses either at the borders or near to the borders of Kosovo. Is that

20 right?"

21 And of course Mr. Hannis agrees and says that he was with the

22 human rights -- Human Watch organisation.

23 And you said, Your Honour: "And there is a very little amount" --

24 "There's a very little amount of direct testimony from him, direct

25 knowledge of events. Is that correct?"

Page 385

1 Mr. Hannis said: "I think that's a fair statement. He may

2 address some matters regarding 1998. Now, that's a liver issue in

3 connection with our indictment as well."

4 Liver, l-i-v-e-r.

5 And then Your Honour said: "I don't think I'm overstepping the

6 mark when I say you obviously have to have particular regard to the value

7 of that type of evidence. In the trial of Milosevic, we had that evidence

8 from Human Rights Watch and we also had evidence from the OSCE I've seen.

9 I was told that no one has really applied or made a determination yet of

10 the weight that will ultimately be given to that evidence, if indeed it is

11 admitted at the trial, so thought may have yet to be given to these issues

12 even before the trial starts."

13 Now, Mr. Fila of course has expressed himself on the issue. And

14 I'm simply asking, given the rules of evidence in the Tribunal, again

15 which I don't pretend in any way, shape or form to be an expert, but

16 having read that -- you know, I'm used to rules of evidence in a book that

17 thick. And the rules of evidence here are simply Your Honours can admit

18 whatever relevance [sic] you want as long as it's not outweighed by the

19 prejudicial impact.

20 But it is very disconcerting for the Defence -- I think I speak

21 for all my colleagues. Well, I'll at least speak to the Ojdanic team.

22 Here are two major books, if Your Honours do admit them into evidence,

23 which are based entirely really on hearsay. I think that Abrahams and

24 Mitchell have just a very, very tiny amount of personal knowledge on any

25 of the events set forth in those books, and those books being based almost

Page 386

1 exclusively on hearsay contains some very damaging information. And I

2 think that there's an argument that can be made that it would really be

3 unfair to admit these books or, at the very least, to give the books very

4 little weight in your consideration of the case.

5 I'm simply raising this as an issue now to see if it might be

6 appropriate for resolution by Your Honours.

7 JUDGE BONOMY: Well, Mr. Sepenuk, I don't think that issue can be

8 resolved until the witness actually goes into the witness box and we begin

9 to hear the nature of the evidence that the witness is giving. What I was

10 doing in March was alerting the Prosecution to something that I expected

11 to be raised and about which I have some concern, most particularly the

12 weight that might be given to that evidence. But I did leave open, as you

13 heard, the possibility that it may not even be admitted. These are

14 decisions that can only be taken once a Trial Chamber is gathered to deal

15 with it, and my colleagues haven't heard sufficient submissions to deal

16 with these issues finally, nor have they I, think, enough knowledge at the

17 moment of the content of the material. That will emerge once we see the

18 witness indicate the nature of the material first.

19 Once we've heard that and if an objection is taken, then we'll

20 have to look at that particular objection in its context and decide

21 whether, in fact, it's such that it has to be rejected, in spite of the

22 weakness of the Rules here, or whether it is a question of the weight to

23 be given in the light of the fact that the Defence have an opportunity

24 themselves to lead contradictory evidence.

25 So these are things we'll attack when they arise in the course of

Page 387

1 next week.

2 But on this separate question, which is -- well, I suppose it's a

3 related question, but it's a much more general one that Mr. Fila makes

4 that if there is somebody actually alive who can speak to something, is it

5 permissible -- and that person's identified, which may not always be the

6 case with the OSCE and Human Rights Watch evidence. But in the more

7 significant case of a witness who is speaking specifically about what

8 happened to someone else and that someone else is still there, or is

9 speaking about what that person said, should the hearsay evidence be

10 admitted at all. That's the question he's raising.

11 Now, do you have anything to add on that?

12 MR. SEPENUK: Well, I -- you know, I -- I certainly -- do you want

13 to -- do you want me to -- I certainly agree with the thrust and the

14 spirit and the philosophy and the theory of what Mr. Fila has to say. I

15 realise that as a practical matter these are sometimes very difficult

16 questions. But I think it's incontrovertibly true when there's a witness

17 available to testify, that's the way that we ought to proceed.

18 JUDGE BONOMY: All right.

19 Now, Mr. Hannis, do you want to respond to these submissions? I

20 don't think you need to deal with the question of Abrahams and Mitchell,

21 but on the other point about leading hearsay where everyone knows that the

22 person who actually was directly involved in available.

23 MR. HANNIS: Well, Your Honour, the rule in this Tribunal is that

24 hearsay is admissible. There's nothing in the Rules that says when

25 hearsay involves a situation where the actual speaker is available that

Page 388

1 the hearsay is not admissible. It may be a factor that would give the

2 hearsay less weight, knowing that the actual declarant is available. But,

3 as Your Honour knows, there can be all kinds of reasons that that

4 individual may not be appearing before the Tribunal. We may know where

5 somebody is, but actually being able to get them here or, once having them

6 here, being able to rely on them testifying and testifying completely,

7 truthfully, accurately, is another consideration as well.

8 JUDGE BONOMY: All right. Thank you, Mr. Hannis.

9 [Trial Chamber and legal officer confer]

10 JUDGE BONOMY: Well, I think -- Mr. -- sorry, do you want to say

11 something else?

12 MR. FILA: [Interpretation] Yes. Sorry, I'm taking up more of your

13 time.

14 Mr. Hannis, sorry, I'm addressing you directly. I'm not referring

15 to hundreds of witnesses and hundreds of sites. Of course I don't want to

16 burden you with thousands of witnesses who will be saying the same thing.

17 I think that perhaps you understand full well what I'm telling you.

18 I took the example of Mr. Dimitrijevic just by way of an example.

19 These are people who are very significant for your case, as far as this

20 hearsay evidence is concerned. You know, I don't really think that the

21 truth is compounded if 60 people tell it. It's just a waste of time, or

22 perhaps I'm just stupid for not having understood it, and maybe you have

23 to call 60 people to tell me the same thing.

24 But anyway, why is an important person not brought in? What was

25 he, the chief of counter-intelligence, whatever at that time? It's not

Page 389

1 some little captain or lieutenant or whatever -- well, you've been calling

2 captains, but never mind. This is an important man.

3 I'm trying to say in that kind of situation I don't think it's a

4 good idea, and I think that the Court should make the Prosecutor call that

5 man. Let's see if he really said that. Well, you know, if he's evading

6 this Court, well, you can have him brought in. Any court, I mean even in

7 our parts, has ways and means of bringing someone in.

8 Thank you.

9 [Trial Chamber confers]

10 JUDGE CHOWHAN: With the permission of the chair, I would just

11 like to make a small comment with all respect to your learning and to your

12 reasoning.

13 Well, of course the rule says hearsay is not excluded here. But

14 elsewhere in different other jurisprudences there are exceptions where

15 hearsay is allowed, confessional statements and the rest of it. The

16 learned counsel had himself pointed out that if somebody's saying, I'm

17 burning because of this and somebody else is quoting him, that will be

18 inadmissible. No. When something is said in a stress while the -- even

19 overtakes the person or the circumstances overtakes the person and

20 somebody hears him, to that extent it is admissible.

21 So the question would be, as you very well said, and we enjoyed

22 your very learned discourse, sir. The point would be that these are

23 difficult questions, and every situation will itself say whether this is

24 to be excluded or not, whether it at all has a weight or it is to be it's

25 not worth the paper on which it is to be written. Again, you also have to

Page 390

1 kindly see that you have to point out while we proceed further and the

2 case develops, that here is a person who is available and who is purposely

3 not being brought with a design. So that will be something which will

4 give you a very extraordinary -- will provide extraordinary strength to

5 your argument and for us to take a decision.

6 But at this stage I think it will be rather very difficult to say

7 this is -- I'm sorry to say it will be a bit hypothetical, to say that

8 this to be included. But what you have said should also provide the other

9 side with a thought that -- that these objections are forthcoming and also

10 with a thought that if they are capable of producing the primary evidence,

11 then they may exclude the secondary evidence, which has always been the

12 law.

13 I'm most grateful.

14 JUDGE BONOMY: Well, you can take it that the Trial Chamber -- the

15 rest of the Chamber takes the same view as Judge Chowhan on this. We

16 appreciate your cri de coeur, we appreciate your warning to the

17 Prosecution about the arguments that undoubtedly will be advanced in due

18 course if this happens. But I think the jurisprudence of the Tribunal,

19 and indeed your submission recognises this, Mr. Fila, the jurisprudence of

20 the Tribunal in principle allows for the admission of hearsay evidence

21 even in the sort of situation you identify applying to the evidence of

22 Vasiljevic.

23 It follows that it's always going to be a matter to be determined

24 according to the individual circumstances affecting that witness. And, as

25 Judge Chowhan says, we will need to make these decisions as and when the

Page 391

1 problems arise. But we are grateful to you for your general submission.

2 And some might even hope that your wish will eventually be granted, not

3 just in generations to come.

4 Now, we will need to break again, I'm afraid. I don't expect to

5 need more than a half an hour of another session. We'll resume at --

6 let's try to resume at ten past -- 4.15 then. We'll resume at 4.15.

7 The matters outstanding -- the other matter you listed, Mr. Fila,

8 was the question of a Kosovo site visit and you can address that when we

9 return. And the one other matter I have relates to any order that we

10 might make about just the practical conduct of the trial, and I will raise

11 a number of individual but brief matters in that connection.

12 Is there any other issue that counsel on either side anticipates

13 raising in the balance of the hearing?

14 Mr. Hannis.

15 MR. HANNIS: One, Your Honour, relates to a matter of scheduling

16 because of a story that appeared in the Politika newspaper on July 4th

17 concerning the health issue of one of our accused. And I don't know if

18 Your Honours were aware of that, but we can discuss it after the break.

19 JUDGE BONOMY: I certainly wasn't.

20 And Mr. O'Sullivan.

21 MR. O'SULLIVAN: There are a couple of matters I would like to

22 raise concerning transportation to and from the prison.

23 JUDGE BONOMY: Do you --

24 MR. O'SULLIVAN: Of the accused.

25 JUDGE BONOMY: Do you need to raise that with the Trial Chamber,

Page 392

1 do you?


3 JUDGE BONOMY: Okay. We'll deal with that then.

4 Mr. Visnjic.

5 MR. VISNJIC: [Interpretation] Your Honour, I would just have a

6 small remark to make in relation to the schedule over the summer. I just

7 want to say it for the sake of the transcript because of some of the

8 decisions that are to be taken by the Registrar. I would like to do that

9 at the very end; it won't take more than three minutes.

10 JUDGE BONOMY: Okay. We'll resume at 4.15.

11 --- Recess taken at 3.44 p.m.

12 --- On resuming at 4.14 p.m.

13 JUDGE BONOMY: Mr. Fila, the subject of the site visit.

14 MR. FILA: [Interpretation] Mr. President, Your Honours.

15 We tried to raise that in relation to the Bosnian cases many

16 times, but it wasn't possible at the time, considering the mood that

17 prevailed about Omarska and everything else. The security situation at

18 the time is such that the Chamber would be safe, but we ourselves would

19 not; the Chamber would be safe, though. We think -- I've lived long

20 enough, after all. There is no risk that I would not be prepared to

21 assume. I'm prepared to assume this risk, so are all of us; the important

22 thing is for you and the Prosecutors to be safe. We probably have reason

23 to fear a number of things in our own country, but you don't.

24 I think it would be a good idea to look at several places, at

25 least, those selected by the Chamber. I think that would be a good idea.

Page 393

1 I'm not about to start discussing that. It's just like the previous thing

2 that I told you. I just wanted to give some sort of a warning or some

3 food for thought.

4 Although this is not part of our agenda, something I would like to

5 ask you on behalf of all the accused. The trial begins on the 7th of

6 August. Pursuant to your order, they should be back by the 31st of July.

7 What we would like to ask you is to move that to the 4th of July [as

8 interpreted] and then Mr. Hannis's deadlines would also be by the 4th of

9 July [as interpreted], in as far as that is possible, of course.

10 These are the two things I wanted to ask you. Thank you.

11 JUDGE BONOMY: Dealing with the second one first, it's just

12 impractical, I'm afraid. The arrangements within the Detention Unit are

13 such that return has to be on the 31st. I understand your concern and the

14 desire to have that period of freedom, but it was seriously considered at

15 the time and for practical reasons that's the decision that was made and

16 will remain.

17 On the question of the visit, just let me consider one thing with

18 my colleagues.

19 [Trial Chamber confers]

20 JUDGE BONOMY: The Chamber had -- did give some thought to the

21 question of visiting the area. Judge Kamenova has direct experience of

22 Serbia. I have a very limited recent experience, as I explained to you

23 before. And Judge Chowhan has none. And he's been somewhat concerned

24 about that and whether that needs to be rectified. But we've decided that

25 if it does need to be rectified, it should be in the context of exploring

Page 394

1 evidence which parties have identified as needing further consideration in

2 light of a locus inspection. Whether that is necessary will depend on the

3 circumstances at the time. I would imagine it's possible in relation to a

4 limited number of matters that we feel are important enough to justify

5 that. But it's a matter I would invite parties to raise at a much later

6 stage, once we've seen what particular places it would be appropriate to

7 have a look at in the light of the evidence.

8 Now, can I then deal with the other issues that each of you

9 mentioned briefly before we rose.

10 Mr. Hannis, you had something.

11 MR. HANNIS: Yes, a couple things, Your Honour.

12 One, can I touch on the site visit for a moment. I should tell

13 Your Honour after the last 65 ter when we were advised by your Legal

14 Officer that you had made a trip, I had written a letter to Defence

15 counsel just asking if any of them had a problem with that, to advise me

16 now rather than later, because in some jurisdictions that might be an

17 argument. And Mr. Fila had responded that they didn't have any problem

18 and proposed that we all make a site visit at some later date.

19 Mr. Ackerman had written and said that he might have a concern, but I

20 understand now he thinks it could be addressed if we all have a site visit

21 at some later date. So I just wanted to put that on the record.

22 JUDGE BONOMY: Well, I was particularly carefully not to make it a

23 visit for the purpose of looking at evidence, and as it turned out I

24 landed up in Dubrava prison. I was released and can tell the tale. But

25 there's absolutely no way in which what I saw there would have any bearing

Page 395

1 on an adjudication of the events in Dubrava prison. And as it turns out,

2 it may be we'll never hear anything of them in any event. Apart from that

3 I was in various communities and I did spend time in Pristina, but not in

4 relation to looking at anything that might be relevant to the evidence. I

5 just wanted a feel for what life in both Belgrade and Kosovo is like today

6 because I thought it might help me when I came to listen to witnesses who

7 come from the area and who may be influenced by conditions there at the

8 present time.

9 MR. HANNIS: Thank you. One matter I wanted to raise relates to

10 maps, Your Honour. We've put together a collection of Kosovo maps, Kosovo

11 municipality maps, et cetera. We have enough to give one to each Defence

12 team and for the Court. These are -- all have ERN numbers and are on our

13 exhibit list. We would propose to hand those out at the beginning of the

14 case and have them available for everybody, and if Defence counsel have

15 any objection, we can certainly discuss that later on. But I wanted to

16 bring that to your attention today and perhaps at the end of the session

17 we can bring them down and hand them around to people.

18 JUDGE BONOMY: Are these better than the Kosovo atlases,

19 Mr. Hannis?

20 MR. HANNIS: These are mostly drawn from the Kosovo atlas and

21 they're blown up to be bigger to fit this size.

22 JUDGE BONOMY: All right.

23 MR. HANNIS: The other matter is something that related to a

24 possible issue with the health of one of our accused.

25 JUDGE BONOMY: Oh, yes.

Page 396

1 MR. HANNIS: We would like to go in private session, I think, to

2 discuss that. The Defence counsel for that particular accused have asked

3 that we go in private session.

4 JUDGE BONOMY: It seems to me that's an appropriate course unless

5 anyone takes any objection.

6 Generally speaking, in relation to matters of health, that would

7 be appropriate. However, there are certainly exceptional circumstances in

8 which even health ought to be a public issue, as you know. But in this

9 situation then we should have private session.

10 So can we please have private session.

11 [Private session]

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 397











11 Pages 397-399 redacted. Private session.















Page 400

1 (redacted)

2 (redacted)

3 [Open session]

4 THE REGISTRAR: We are in public session, Your Honours.

5 JUDGE BONOMY: Mr. Visnjic, you had a matter to raise?

6 MR. VISNJIC: [Interpretation] That's right, Your Honour. I must

7 add something else that my colleagues have drawn my attention to.

8 Could we perhaps receive from the Chamber an estimate on how much

9 the case -- the trial would go on for, bearing in mind these new changes

10 and amendments of the Prosecution case.

11 Another thing that I wanted to say and I want to get this on the

12 transcript just to make sure whether I understood what you previously

13 said. Bearing in mind the motions we received from the OTP and the

14 deadlines set for our reply, as well as the changes to the order of

15 witnesses and any changes to the witness list, including some of the

16 discussions we had at our 65 ter conferences with regard to the

17 commencement of this trial and the schedule for the first week in July and

18 the rest in August, I thought the summer recess would see the Defence

19 teams working at full tilt to prepare for what comes next. That was my

20 understanding of the period now stretching before us. I'm talking about

21 the three weeks after the first recess. Our understanding is we have to

22 forge ahead throughout this period of time in order to be ready for the

23 continuation. At the same time, we have the schedule which leaves us with

24 the obligation to prepare one of our motions during that period.

25 If I could please have that confirmed so I can go back to the

Page 401

1 Registry and talk to them about how the Defence teams would be organising

2 ourselves throughout that period of time.

3 JUDGE BONOMY: You've understood the position correctly.

4 MR. VISNJIC: [Interpretation] Thank you.

5 JUDGE BONOMY: As far as the first point is concerned about the

6 estimate of the trial length, you can do this, I think, as well as me at

7 the moment. But my rough calculation is that assuming there are no

8 unforeseen interruptions, by the Christmas recess we shall have had about

9 400 hours. Now, that's intensive; I recognise that. But you've all along

10 known my view that if we can apply ourselves intensively early in this

11 case, it's going to give everyone a much better opportunity in the long

12 run of preparing adequate submissions at the end of the trial.

13 I don't think I'm breaking any confidences in telling you that so

14 far as the Registry are concerned, when they look to me for an indication

15 of the length of the case, I can't do better than tell them the

16 Prosecution case shouldn't last more than a year. But I'm hoping, very

17 hopeful, now that it's going to be significantly less than that. I find

18 it impossible to judge the length of -- the likely length of the Defence

19 case for reasons we discussed earlier in the hearing. But these are the

20 vaguest of indications, and they depend on things going extremely well,

21 and that's not really consistent with the history of this building.

22 So I think that's as much as I am in a position to say to you

23 today.

24 But one thing that has happened today is that the Prosecution

25 estimate of around 280 hours for the presentation of their evidence in

Page 402

1 chief must now be a bit less.

2 MR. HANNIS: Your Honour, it may be, but here's how it went. We

3 had previously estimated 240 hours for examination-in-chief of our

4 witnesses, with possibly another 40 hours for experts. If we don't lead

5 evidence concerning the three municipalities that we've talked about, I'd

6 have to tone up the hours for those witnesses, and we can subtract that

7 number.

8 However, the 92 bis witnesses we had not anticipated having any

9 time for direct examination because we had the hope that they wouldn't

10 come in. That's 56 witnesses, but any direct exam of them should be

11 fairly short. And we're trying to do a number of our witnesses by 89(F).

12 So maybe we're still at around the same figure.

13 JUDGE BONOMY: I'm quite reassured by that, and I remain

14 optimistic that things will get better. So these are very vague

15 indications, but no one's in a position to do more than give that at this

16 stage.

17 Now, if that completes the issues that you wish to raise, then I

18 just want very quickly to go through a number of points on which the

19 Chamber is considering making an order giving guidance to parties on how

20 proceedings should be conducted.

21 Can I take it you have completed the various points that you wish

22 to raise with me?

23 MR. VISNJIC: Your Honour.

24 JUDGE BONOMY: Sorry, Mr. Visnjic.

25 MR. VISNJIC: [Interpretation] I just conferred with

Page 403

1 Mr. O'Sullivan, and I don't think we should leave it to the Registry to

2 decide on what the total time would be that would be required for the

3 Prosecution case. We only have the Prosecutor's own estimate, and that

4 still leaves time for cross-examination. I understand they can't be more

5 specific now, or don't want to, but we do need some sort of a figure to

6 face the Registry with.

7 For us, this would be as good as a foundation for our case, and it

8 also ensures that the standards of a fair trial are met. Maybe we don't

9 need to have this right now, but we would appreciate having it over the

10 next couple of days.

11 JUDGE BONOMY: But what do you think can be done more than to say

12 to the Registry that the Prosecution case might take a year? I mean,

13 that's the indication I've given, as requested, but I'm -- I still live in

14 hope.

15 MR. VISNJIC: [Interpretation] It was my omission. Thank you.

16 It's all right.

17 JUDGE BONOMY: Well, the matters that -- just in case there are

18 comments the parties wish to make on these before the order is issued, I

19 think we probably should set out for you the time-recording mechanism that

20 will be used, because it's customary in these trials to record the time

21 used by the various parties in presenting a case, and you should know in

22 advance how that's being done, rather than simply have it given to you by

23 surprise later. And I will set out that for you. Obviously, if anyone

24 feels the need to make comments on orders of that nature which are issued,

25 then you should make them sooner rather than later, but I suspect they

Page 404

1 won't be necessary because it's a practice that's a general practice

2 followed in these cases.

3 The intimation of documents which are going to be used in

4 cross-examination, there should be a time set, a deadline set, for the

5 intimation of the list of documents and the release of them through the

6 e-court system. And that will be 24 hours prior to the anticipated start

7 of the cross-examination of the witness, unless, Mr. Hannis, you want to

8 make any comment about that.

9 MR. HANNIS: No, Your Honour. That seems reasonable, and if

10 there's an exceptional case, we'll address it at the time.

11 JUDGE BONOMY: Thank you.

12 As far as exhibits are concerned, I have to confess having a

13 little difficulty with the system that operates here of deciding

14 specifically that something which has been understood to be a document

15 that's in the case, as it were, or certainly in the files for the case

16 becomes specifically exhibited after positive consideration being given to

17 certain features. Now, that's a reflection of a rule about authenticity,

18 probative value, and relevance. But it seems to me to take up an

19 inordinate amount of time when there doesn't seem to be any issue over the

20 document.

21 So the practice we propose following is that when a party produces

22 a document to a witness or in some other way, if no issue is taken with

23 that, it will certainly become an exhibit in the case. It will be

24 converted from a document that was in the parties' files to one of the

25 exhibits in the case. And if there is any exception taken to it on any

Page 405

1 ground at all, then it's for the party to raise it at that stage. And the

2 Bench will then have to make an adjudication on its admission. I expect

3 you to either exercise discretion in this from the outset or, having had

4 one or two rulings from the Chamber, to recognise what the practice is in

5 relation to documents in general.

6 Generally speaking, where you intend to rely on a book, then you

7 should identify the parts of the book on which you rely; and the parts

8 that the Trial Chamber will regard as evidence will be the parts which are

9 featured in the exchanges between examining counsel and the witness.

10 Similarly, with expert reports, the report will be admitted and

11 considered by the Trial Chamber only to the extent that it's part of the

12 evidence of the expert witness. Now, it may be the whole report, because

13 the witness adopts the report and says, this is an accurate account of my

14 findings in view of the investigations I've made. But there will be

15 situations in which we decide that only parts of a report are going to be

16 admitted in any event, and there will be others where only parts are

17 relied upon by the parties.

18 Hopefully untranslated documents in this case will be at a

19 premium, but where they do arise, they will not be admitted until they are

20 translated into the working language of the Court. We may issue more

21 guidance on the use of Rule 89(F) and a little more guidance on hearsay,

22 but we'll consider that and decide finally before this order is issued.

23 I should say that the order will be available on Monday at the

24 latest -- on Monday at some time before the evidence or at the time the

25 evidence begins.

Page 406

1 Other Chambers may have made orders about the provision of 89(F)

2 statements considerably -- a considerable period of time before the

3 witness gives evidence. I think that's been done in the context of

4 Rule 66(A)(i) regarding it as a disclosure question, but where the 89(F)

5 statement is simply a rehash of material which has already been disclosed

6 66(A)(i) doesn't come into account -- or (A)(ii), rather, doesn't come

7 into account. And we've discussed a system already for the production

8 of -- or the production to the Defence of copies of the -- of the 89(F)

9 statements.

10 It may be that we should make a rule about that. The trouble

11 about it is that some of the 89(F) statements may emerge from proofing, I

12 suppose, or after proofing, and therefore they'll be pretty close. So

13 we'll proceed on the basis that a minimum of 24-hour notice should be

14 given, unless by agreement of the parties.

15 As far as motions are concerned, we discussed the possibility of

16 oral motions earlier. The order will probably make provision to clarify

17 the situation where the Defence -- one of the Defence counsel makes a

18 motion and others join in. We may set a time limit for that of seven

19 days, and indeed where a response -- there's a response involved and they

20 join in the response, we make a provision in relation to that. And that's

21 to bring order to the situation, because there have been one or two

22 examples in this case of rules about the time for responses not being

23 observed. And it's important to bear these in mind. We're, generally

24 speaking, inclined at the moment to have no regard to filings which don't

25 comply with the rules.

Page 407

1 Now, unless there's any point arising in relation to these or you

2 think there's another matter we should regulate --

3 Yes, Mr. O'Sullivan.

4 MR. O'SULLIVAN: Perhaps a point of clarification.

5 On your first point regarding documents for cross-examination, my

6 understanding that we are to provide those to the e-court system 24 hours

7 before that witness testifies. But these items for cross-examination are

8 not subject to disclosure to the Prosecution. Am I correct on that? They

9 go into the system, but we're not disclosing it to the Prosecution prior

10 to the witness's testimony because that would, I think, be contrary to the

11 use we'd want to use these documents for during cross-examination, in

12 issues of credibility or subject matter of their testimony. So I would

13 submit that we put them into the e-court system for efficiency, but they

14 aren't disclosed to the Prosecution before the testimony.

15 JUDGE BONOMY: I'm thinking domestically rather than

16 internationally at the moment, but the sort of document I would recognise

17 as one which can be produced out of a hat, like a rabbit out of a hat, is

18 one of which the witness inevitably has notice, in other words, something

19 he may have written himself, used to challenge him. But if you are going

20 to challenge one person's evidence by reference to something somebody else

21 had prepared, another report or another account, that's something I would

22 expect to be disclosed 24 hours beforehand, I think. Unless you can show

23 to me that there's a different practice here. I'm not -- I'm not aware of

24 a different practice, but that's probably my inexperience.

25 MR. O'SULLIVAN: I think the practice here is quite different.

Page 408


2 MR. O'SULLIVAN: There's no requirement to disclose materials

3 which we intend to use under Rule 90(H) in the cross-examination of a

4 witness.

5 [Trial Chamber confers].

6 JUDGE BONOMY: Mr. O'Sullivan, are you saying that when it comes

7 to the cross-examination by the Prosecution, that the same rule applies?

8 MR. O'SULLIVAN: Yes, I am, yes. I may not know 24 hours in

9 advance what my cross-examination of a witness will be. That may develop

10 during that person's testimony.

11 JUDGE BONOMY: Now that's a different situation.

12 MR. O'SULLIVAN: Well, that's one of the situations. Another one

13 may be I may have in mind, based on the out-of-court statement, matters I

14 wish to test the evidence upon, and the statement may be going in one

15 direction which I don't necessarily agree with or that I may want to test

16 and I want to see what that witness has to say about that. And I don't

17 think I should be giving that in anticipation of what he may or may not

18 say on direct. And also for credibility. I don't see a situation,

19 really, where I'm required to give advanced notice to the Prosecution of

20 my line of cross-examination.

21 JUDGE CHOWHAN: Sir, a comment. No, but then there is a type of

22 documents where this is not required and what you're saying will be, to my

23 mind, correct. You will not have to give a notice to the Prosecution

24 about what those documents are going to be. Firstly, of which the witness

25 is the author himself; secondly, a document which is prepared at the

Page 409

1 behest of the witness and he's supposed to be aware of it. But he will --

2 or he will never be confronted with a document which is just unknown to

3 him or he has never been an author.

4 If that is what you are thinking, then obviously you don't have to

5 place in the hands of the Prosecution a document beforehand, obviously.

6 In cross-examination, if you impeach the credibility of a witness. And if

7 he's showing a document and you have another copy of it you can always

8 confront. But it will not be every document for which the rule which is

9 being very kindly proposed by you will be applicable. But it will be

10 applicable where he is the author or where he has prepared the document or

11 it has been prepared under his supervision. There will be no other

12 document to that effect. And in that case, it's my personal view that you

13 need not and you can bring out a document up your sleeves here.

14 JUDGE BONOMY: I don't think Rule 90(H) answers the question,

15 though, does it? Perhaps interpretation of it in cases may, but the rule

16 itself doesn't help.

17 MR. O'SULLIVAN: Well, it's silent on the matter. In my

18 submission, it's the nature of cross-examination itself which is such

19 that -- there are other examples, Your Honour, that are -- well, a wide

20 range of examples. There may be legislation which the witness can refer

21 to, which he's not the author of but with which he's familiar.

22 Your Honour has given me very specific examples, but there are

23 others --

24 JUDGE CHOWHAN: No, legislation is a public document. And a

25 public document which has been -- like the gazettes one of your learned

Page 410

1 brothers here was mentioning. Those can be produced because they are

2 public documents known to the public, and he can be confronted. No,

3 that's always an exception. Include the public documents. Especially if

4 it's legislation, well, then you can first ask him: Well, the legislation

5 said this, and you were doing this; the rule said this, you were doing

6 this; that's different. But normally the author's own document, but those

7 are documents which are ipso facto.

8 JUDGE BONOMY: The problem, though, as I -- it's not in every

9 jurisdiction that this form of ambush is permissible, but I see the

10 problem where if you do it only 24 hours beforehand, what you do is you

11 outline your cross-examination tactic. If, of course, you've done it long

12 beforehand, along a list of other documents they're scattered through your

13 65 ter list in due course, then you don't disclose the line of

14 cross-examination. So I understand the point, if you're only doing it at

15 that time.

16 The rule we would make would be designed to ensure the efficiency

17 of our system here, and therefore, undoubtedly, you would have to have

18 everything uploaded into the e-court system 24 hours beforehand. What I

19 think we should do is consider what practice has been followed elsewhere

20 and what rules there are before we make this determination. So I can

21 assure you that we will review what practices have been followed elsewhere

22 in this Tribunal before making a decision.

23 MR. O'SULLIVAN: One final point. My understanding is the e-court

24 system - and perhaps our friend from the Registry can help us - the

25 e-court folder into which I would upload documents for cross-examination

Page 411

1 is a confidential folder between the Milutinovic team and the Registry.

2 So that's not a problem. That's -- the whole point is that it remains in

3 that folder and it's not shared with anyone.

4 JUDGE BONOMY: I understand that distinction. That's why I say

5 that the real issue here is the notice you have to give to the Prosecutor.

6 So that will be considered further, in the light of your submission.

7 Mr. Visnjic.

8 MR. VISNJIC: [Interpretation] Your Honours, let's leave this

9 problem about informing the Prosecutor aside for the time being.

10 I'm just trying to imagine this possibility, bearing in mind the

11 schedule and hearings that sometimes take all day. Let's imagine a

12 witness who starts testifying one day and then soon after we move to our

13 cross-examination. It's possible that during the chief some circumstances

14 may arise requiring the Defence to react in a way which the -- has not

15 been prepared.

16 One thing I wanted to ask you is in your ruling today, please

17 leave open a possibility for another way for the OTP or the Defence to

18 introduce new documents, maybe not electronically if there's not enough

19 time. These will be exceptional situations, but I think we should leave a

20 possibility open for cases like these, the exception, not the rule.

21 JUDGE BONOMY: I think you can take it that in relation to any

22 matter of this nature on cause shown, the Court will depart from the

23 strict terms of a rule.

24 When we issue our order, if nothing is said on the matter it will

25 be because we are undecided on it until the question actually arises. So

Page 412

1 the rule will -- the order will only cover matters that we think it's

2 essential to deal with at this stage.

3 Can I then --

4 Sorry, Mr. Lukic.

5 MR. LUKIC: Yes, Your Honour. Thank you. Just one short

6 question, and it's, I think, very practical one.

7 Can we confront the witness only with his previous statements or

8 we can confront him with the statements of another witness's, for example,

9 the Prosecutor's witnesses? If you find that some other witnesses talks

10 completely different about the same issue?

11 JUDGE BONOMY: Undoubtedly you can do that.

12 MR. LUKIC: Okay. That's all. Thanks a lot.

13 JUDGE BONOMY: And it's perhaps a suitable occasion for me to

14 indicate that you may want to make submissions about this if the situation

15 arises, the concept of the hostile witness is not one that I'm terribly

16 sympathetic to. It seems to me that a party should be entitled to examine

17 a witness in the form that is appropriate to the circumstances. So if you

18 bring somebody that turns out to be hostile to your case, I'm not, as

19 presently advised, to demand that somehow or other you prove his hostility

20 to the point where he has to be declared hostile before you start

21 cross-examining him.

22 I think under the proper control of the supervising court you

23 should be allowed to examine witnesses as is appropriate. If that is of

24 any assistance to you as a preliminary indication of what would happen

25 without, obviously, finally deciding it, then please take account of it.

Page 413

1 [Trial Chamber confers]

2 JUDGE BONOMY: Well, the Trial Chamber would like to express their

3 gratitude to counsel for the very helpful submissions that have been made

4 throughout today's hearing, and we would like also to thank you for the

5 cooperative way in which you have responded to the various requests we've

6 made for assistance throughout the last week or so that this has been the

7 Bench. And I personally would like to thank all counsel for their

8 cooperation throughout the period that I've been the Pre-Trial Judge.

9 That, effectively, brings the pre-trial proceedings, the active

10 pre-trial proceedings in this case to an end. I now look forward to

11 hearing all of you in the context of the trial. The indication from

12 Mr. Hannis is that he might be something of the order of four hours, I

13 gather, in his opening statement on Monday. We have an indication of

14 somewhere between half an hour and an hour for the statement of

15 Mr. Ojdanic. There is the possibility of evidence on Monday, but we'll

16 deal with that as and when the situation arises.

17 But I now adjourn this hearing and simply confirm that the trial

18 ought to commence at 9.00 on Monday.

19 --- Whereupon the hearing adjourned at 4.59 p.m.,

20 to be reconvened on Monday, the 10th day of

21 July, 2006, at 9.00 a.m.