Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9703

 1                           Thursday, 12 November 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.16 p.m.

 5             JUDGE MOLOTO:  Good afternoon to everybody in and around the

 6     courtroom.  Mr. Registrar, will you please call the case.

 7             THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon to

 8     everyone in and around the courtroom.  This is case number IT-04-81-T,

 9     the Prosecutor versus Momcilo Perisic.  Thank you.

10             JUDGE MOLOTO:  Thank you so much, Mr. Registrar.  Could we have

11     appearances for the day starting with the Prosecution, please.

12             MR. HARMON:  Good afternoon, Your Honours.  Counsel, everyone in

13     the courtroom.  Mark Harmon, Dan Saxon, Lorna Bolton, Barney Thomas and

14     Carmela Javier for the Prosecution.

15             JUDGE MOLOTO:  Thank you so much, Mr. Harmon.  And for the

16     Defence, Mr. Lukic.

17             MR. LUKIC: [Interpretation] Good afternoon, Your Honours.  Good

18     afternoon to everybody else in these -- taking part in these proceedings.

19     Mr. Perisic represented with Mr. Chad Mair, Mr. Gregor Guy-Smith, and

20     Novak Lukic as Defence counsel.

21             JUDGE MOLOTO:  Thank you very much Mr. Lukic, and good afternoon

22     to you and welcome back, Mr. Guy-Smith.

23             This sitting was called for to deal with housekeeping matters.

24     First of all, before we even start, Mr. Harmon, would you like to place

25     on the record what is happening with -- if you have not already done so,

Page 9704

 1     what is happening with the outstanding witness.

 2             MR. HARMON:  Yes.  Yes, sir.  The outstanding witness will not be

 3     called, Your Honour.

 4             JUDGE MOLOTO:  Okay.

 5             MR. HARMON:  And that witness was Mr. --

 6             JUDGE MOLOTO:  Do you hear what I hear?

 7             MR. HARMON:  I don't.  The outstanding witness was Milan Lesic.

 8             JUDGE MOLOTO:  Thank you so much.

 9             Let's start with -- there are a number of things that we need to

10     talk about this afternoon before we -- the first thing I think we should

11     deal with is the question of MFI'd exhibits.  Quite a number of them have

12     been MFI'd and on the understanding that we will hear later from the

13     Defence.  Is the Defence in a position to tell us what the position is?

14     I'm told there are a lot of them.  If your submissions are going to be

15     long, I would suggest that we deal with them outside court with the

16     opposite number, but if you are able to give one short blanket response

17     then we can deal with that.

18             MR. GUY-SMITH:  With the Court's guidance in mind -- that's

19     better, yes.  With the Court's guidance in mind, I had a brief

20     conversation with Mr. Harmon and the legal officer just moments ago, and

21     it seems that what will probably be both expedient and profitable would

22     be if there was one further meeting between the Defence and the

23     Prosecution with regard to the status of the MFIs.  And I think it's fair

24     to say that we've come a long way, and I think it's fair to say that we

25     can come even further by virtue of some of the discussions that have been

Page 9705

 1     had as between the parties concerning a fair number of exhibits.  There

 2     are certain conditions precedent to our accepting certain exhibits that I

 3     think the Prosecution has no difficulty with.  There are certain clear

 4     arguments as between the parties, and with regard to that, I think we

 5     probably, since you've put a suggestion with regard to oral as opposed to

 6     written submissions, after such a session if the Chamber is in agreement,

 7     that we probably would be in a position to make written submissions.  It

 8     had been our belief, and perhaps we were being a bit premature, it had

 9     been our belief that we may be arguing all of the MFIs today orally, but

10     that would take a considerable period of time, and based upon what the

11     Chamber just said that would probably not be the way that you would

12     choose to go nor we would choose to go based on what was just said.

13             JUDGE MOLOTO:  Thank you, Mr. Guy-Smith.

14             Mr. Harmon, how does that response impact on the status of the

15     Prosecution case?  To be specific, resting or not resting?

16             MR. HARMON:  Obviously we will not rest until we have the issue

17     of the exhibits resolved.  And so that is how it impacts on the status of

18     the case.

19             JUDGE MOLOTO:  Okay.  I must come back to you, Mr. Guy-Smith.

20     How soon do you think this resolution can be arrived at?  You suggested a

21     further meeting between the parties.

22             MR. GUY-SMITH:  Well, I think that -- I think there is a somewhat

23     of a slight practical difficulty, and I have no desire to play ping-pong

24     with Mr. Harmon right now, but as I indicated before, with regard to a

25     fair number of these exhibits, there is a condition precedent.  Let me

Page 9706

 1     give you just a general example without arguing any particular piece of

 2     evidence.  There are certainly exhibits that require some form of either

 3     redaction, augmentation, or correction.  Once that occurs, after review

 4     the Defence would be in a position, and we expect to be in a position to

 5     accept that exhibit.

 6             However, we are at the mercy of the Prosecution with regard to

 7     those issues, because they have to perform a task before we are in a

 8     position to review that information and then accept it.  I mean, we could

 9     provisionally say that we would agree to the following numbers of

10     exhibits upon certain numbers of conditions, but I don't think that would

11     be particularly satisfactory to the Chamber because we still would be in

12     a position where we're tending information.  So as I started at the

13     beginning, I don't have any desire to play ping-pong with the

14     Prosecution, but in order to answer your question we need to get an

15     affirmative answer in response from the Prosecution as to when they will

16     complete the tasks that exist as to those issues that have heretofore

17     been discussed as between the parties.

18             JUDGE MOLOTO:  Has the Defence given the task to the Prosecution

19     already?

20             MR. GUY-SMITH:  Well, we've either given it to them or they have

21     undertaken it, one or other.

22             JUDGE MOLOTO:  How soon are you able to complete the task if

23     indeed you accept that you have a task to perform, Mr. Harmon?

24             MR. HARMON:  Making that assumption, Your Honour, some of the

25     tasks which we have been requested to examine we have done and we have

Page 9707

 1     informed the Defence.  Others, Your Honour, they need to be discussed

 2     further with the Defence.  I don't know the volume that that set of

 3     inquiries meets in terms of a total number, but we will certainly to the

 4     extent that those are reasonable requests and we can meet them, we will

 5     do so immediately.

 6             JUDGE MOLOTO:  Okay.  Now, Mr. Guy-Smith has alluded to the

 7     possibility if the Chamber is so inclined to agree of a conditional

 8     acceptance of the exhibits on condition the tasks are performed later.

 9     Would that be a possible way forward for you?

10             MR. HARMON:  Your Honour, without having in front of me all of

11     the tasks that have been identified by the Defence team in this case,

12     it's difficult for me to see, first of all, what they are.  Some were to

13     produce original documents, for example, so the Defence could inspect and

14     we have original documents here, for example, today so the Defence can

15     inspect those.  Some related to translation issues.  Those have been

16     tended to as we speak.

17             So is it -- is it your question, Your Honour, that if those are

18     conditionally admitted subject to our agreeing that what has been

19     requested by the Defence has been done, generally I don't have a problem

20     with that.

21             JUDGE MOLOTO:  The only thing is, as I understand, Mr. Guy-Smith,

22     you are supposed to be in possession of the tasks that are outstanding.

23     You are supposed to be able to say whether you find those tasks

24     reasonable or not reasonable.  Unless you are saying no you disagree with

25     him, he hasn't given you any of those, all of the tasks.

Page 9708

 1             MR. HARMON:  May have just a minute, Your Honour, and just check

 2     with Ms. Javier.

 3                           [Prosecution counsel confer]

 4             MR. HARMON:  Your Honours, given that I have identified I think

 5     the full range of limited number of tasks that have been requested, we

 6     should finish those tasks by mid-week next week.  When I say tasks, the

 7     Defence has made certain requests of us.  We are addressing those, and we

 8     should finish addressing those completely by mid-week next week.

 9             JUDGE MOLOTO:  Now, if I can go back to my question.  Would you

10     be inclined to a conditional admission of these exhibits pending your

11     finalization of those tasks?

12             MR. HARMON:  Yes.

13             JUDGE MOLOTO:  You would.  And so would the Defence?

14             MR. GUY-SMITH:  Well, the quick answer is yes, but once again,

15     there's a slight issue here which is why I don't want to say more than is

16     actually really where we are.  And let me explain to you why.  For

17     example, as an example, the Prosecution in one of our last meetings

18     indicated they were going to be redacting certain information because it

19     was not appropriately part of the record.  We've said fine, we agree.

20     Once we get that particular exhibit with the appropriate information

21     redacted, there will no longer be any issues with regard to that

22     particular exhibit.

23             JUDGE MOLOTO:  True, but that's one of the tasks that they must

24     go and perform.

25             MR. GUY-SMITH:  That's right, and once that task has been

Page 9709

 1     performed then we are in a position to quickly review it and say yes,

 2     it's fine.  My concern is this:  My concern is once the task has been

 3     performed if there's a mistake I don't want to be in a position where

 4     they've said they've performed the task but we still have an objection by

 5     virtue of the fact that they haven't taken care of the matter at hand.

 6     These are all factual matters, I'm not speaking about any legal issues

 7     whatsoever.

 8             JUDGE MOLOTO:  Obviously -- I also don't want to play ping-pong

 9     with you.  But obviously if they haven't performed the task of course

10     that document cannot be admitted.

11             MR. GUY-SMITH:  Fine.  But then we are in not bad shape, but to

12     the extent there could be any interpretive issue with regards to some of

13     the factual matters, I don't want to be in a position where at a later

14     point in time you, and rightfully so, may say to me, listen,

15     Mr. Guy-Smith, you provisionally indicated you were willing to accept an

16     exhibit and now you are telling me that you're not by virtue of something

17     that has gone on.  I don't want to be in that position.

18             JUDGE MOLOTO:  But let me also put a caveat to my statement that

19     it can't be admitted.  That is of course if the Chamber finds the

20     objection value.

21             MR. GUY-SMITH:  Obviously so.  But for example, for example, if

22     you have a document which is being admitted as conversation number 53,

23     and in fact is number 42, that is one of our objections which is please

24     put the right conversation in so that we deal with the right matter, that

25     is something which is not factually in dispute.  I'm not talking about

Page 9710

 1     anything other than very -- for a moment very direct factual issues.  I'm

 2     not dealing with any kind of legal objections we may have to some of the

 3     matters which is an entirely different issue and one obviously that will

 4     require the Chamber's thought and analysis.

 5             JUDGE MOLOTO:  The reason I'm trying to push this is because I'm

 6     trying to get you to rest.

 7             MR. HARMON:  I understand that.

 8             JUDGE MOLOTO:  You understand that.  I'm trying to get you to

 9     rest as soon as possible because the rest of the issues that have to be

10     raised here are dependent on the Prosecution resting.

11             Now, I haven't had a very clear-cut answer from Mr. Guy-Smith

12     whether he would go along with the conditional admission pending

13     performance of tasks by the Prosecution so that we can find out whether

14     the Prosecution is in a position to rest and we can go on with the next

15     items.

16             MR. GUY-SMITH:  I will give you a clear-cut answer.  I'm willing

17     to go along with conditional admission pending performance of the tasks

18     with regard to those documents that have been marked for identification

19     that fit into those categories.  There are a balance of documents that

20     don't fit into those categories which are legal arguments to be made.

21     Now, we can do some of that today, if you wish.  Or we can do that by

22     written submission, whatever you prefer.

23             JUDGE MOLOTO:  How many exhibits are involved which require --

24     which are based on legal objections?

25             MR. GUY-SMITH:  There are approximately I would say 125 exhibits

Page 9711

 1     that fall into that category.  That fall in the category of requiring

 2     some form of legal response, where we have legal objections.

 3             JUDGE MOLOTO:  And are you able to argue your legal objection on

 4     a globular -- in a globular fashion, or are you going to have to take

 5     them one by one?

 6             MR. GUY-SMITH:  We can argue aspects of them in a global fashion

 7     and others we will have to take one by one, Your Honour.

 8             JUDGE MOLOTO:  Then I am afraid you'll have to do it by written

 9     submissions.

10             MR. GUY-SMITH:  Very well.

11             JUDGE MOLOTO:  Thank you so much.  You obviously can't rest

12     Prosecution because there are other legal objections other than factual

13     objections.  That notwithstanding I think we should try and move on with

14     the another issues that would fall naturally on a closure, and the next

15     thing is the position of the Defence post closure by the Prosecution.  We

16     were made to understand that Mr. Guy-Smith, on your return some

17     agreement -- some finality would be reached between the two of you and we

18     should be able to be advised.

19             MR. GUY-SMITH:  That is correct, and I was looking to Mr. Lukic

20     because I think he will at this point be discussing that matter with you.

21             JUDGE MOLOTO:  Mr. Lukic, please.

22             MR. LUKIC: [Interpretation] I'm trying to follow although I must

23     acknowledge that I haven't been able to do that quite well.

24             JUDGE MOLOTO:  [Overlapping speakers] That's all I'm asking.

25             MR. LUKIC: [Interpretation] As we all know that the rule says

Page 9712

 1     that we state our views when the Prosecution case is all over, then I can

 2     conditionally state my position with your permission.

 3             JUDGE MOLOTO:  Yes, Mr. Lukic.

 4             MR. LUKIC: [Interpretation] The Defence was ready today.  I

 5     thought we were going to try and resolve matters today but obviously

 6     we'll have to go a different way.  Mr. Harmon has just explained his

 7     position and why he hasn't finished.  Now we were ready to hear

 8     Mr. Harmon say that he had completed his Prosecution case and then that

 9     we would say that we would not be tabling a request under Rule 98 bis.

10             JUDGE MOLOTO:  That's a position you are able to pronounce on

11     irrespective of whether or not they are resting now, unless if they are

12     planning to call further evidence.  But if they are not going to call

13     further evidence you should be in a position to say whether or not you

14     are --

15             MR. LUKIC: [Interpretation] That's right.  And that's why I said

16     conditionally speaking.  Now, and I bear in mind the fact that we are

17     going to hear arguments here about the MFI documents, and I had this

18     image before me, and I thought we could make a framework for the

19     completion of the Prosecution case along with the additional findings of

20     Mr. Melvin.  But given that kind of situation, I would be ready and now

21     I'm saying again that as the situation now stands, the Defence won't be

22     tendering a request under rule 98 bis, but once Mr. Harmon really does

23     complete the Prosecution case and producing his evidence, then that would

24     be our position unless we have a new witness which would give us reason

25     to table a request of that kind.

Page 9713

 1             JUDGE MOLOTO:  Thank you, Mr. Lukic.

 2             I'm mindful as I ask you this that I think there are two

 3     outstanding motions on admission from the bar?

 4             MR. HARMON:  That's correct, Your Honour.

 5             JUDGE MOLOTO:  I'm mindful of that, and the Trial Chamber will

 6     render its decision.  Now, you also raised, Mr. Lukic, General Melvin's

 7     question.  There was really one little question put to him, namely the

 8     question whether he knew any authority which shows that a commander might

 9     withhold a promotion as a possible punishment for the commission of a

10     crime.  I just wanted him to say yes and this is the authority.  I really

11     don't want a long story from him.  But I don't know how he is going to

12     answer that question.

13             MR. LUKIC: [Interpretation] Yes, I had all this in mind when I

14     put forward our position.

15             JUDGE MOLOTO:  Thank you very much.

16             MR. GUY-SMITH:  If I might, Your Honour, just for purposes of

17     clarification so we all make sure we are on the same foot, with regard to

18     the fourth bar table submission, we have yet to respond to that.  Our

19     response is due shortly and we will be filing shortly.

20             JUDGE MOLOTO:  I omitted to say that.  I should have said so.

21     It's just that to the extent that you haven't responded, that motion is

22     still pending too.

23             Okay.  Just to confirm, Mr. Lukic, what you told us the last time

24     on the 4th of this month that we can start the Defence case on the 18th

25     of January.

Page 9714

 1             MR. LUKIC: [Interpretation] Might I be given some time to confirm

 2     what you've just asked me in actual fact?

 3             JUDGE MOLOTO:  I actually asked you on the 4th if I could hold

 4     you to that day, and you said yes.

 5             MR. LUKIC: [Interpretation] Yes, that's what I want to do, but --

 6     yes, I want to say that the Defence is ready and I confirm the 18th of

 7     January for the start of the Defence case, but I have to make a proviso

 8     here, put it in the conditional, and that will depend on when we are

 9     going to leave The Hague physically speaking and start preparations for

10     the Defence case.  So I said on that occasion, when you said you would

11     hold me to my word, that the Defence would need 30 days from the time the

12     Prosecution case is completed.  And we expected that to be this week.

13     For us to be able to attempt to draw up a list of witnesses, that's why I

14     said the 15th of December as a sort of dead-line, that was the date I

15     mentioned, but I'd like to put some arguments forward in that respect and

16     that then we could begin our case on the 18th, the 18th of January.  But

17     if we remain here in The Hague to resolve outstanding methods, writing

18     motions and things like that which would take up our time, then I have to

19     say that on the 4th when you asked me, there was no question of us

20     staying on, except for this other gentleman that was supposed to be

21     heard.  So that changes the situation.

22             JUDGE MOLOTO:  And I'm not -- motions are driven by the parties

23     they are not driven by the Bench, so I guess if the Defence want to draft

24     a motion, they can draft it even from Belgrade or wherever they may be

25     where they may be talking to their witnesses.  But I'm saying -- I'm not

Page 9715

 1     quite sure what changes the picture now.  What makes you think that you

 2     are likely to stay here longer?

 3             MR. LUKIC: [Interpretation] This is what I have to tell you, here

 4     is what I have to say:  At present it seems to me that we are now

 5     brought -- the Defence has brought in the following position, that the

 6     holidays that are coming on which are going to represent a problem both

 7     for the Prosecution, as Mr. Harmon said last time, but not for the

 8     Defence as well because I think we are going to have to work the whole

 9     time, anyway this represents a sort of framework of our work and your

10     decisions with respect to future activities.

11             Now, this Defence team has two lawyers, three associates, and one

12     investigator.  I've had all this in mind when I told you what I told you.

13     And now what we have to do is this:  We have to conduct -- or rather, we

14     need 30 days for very important interviews, not in Belgrade but in

15     Serbia, outside Serbia, and outside Europe indeed.  And I had that in

16     mind as well when I told you what I did tell you when I thought that we

17     could achieve all this during the period of time that I envisaged at the

18     time and that we discussed.

19             Now, this Defence team has no illusions that from the time it

20     leaves this is courtroom until the time it comes back in this courtroom

21     will not have a single day of holiday, we are aware of that.  I'm quite

22     sure.  Now, Mr. Harmon said last time what his problem was, the problem

23     he had, that is that his team after the 15th of December would not be

24     able to work on those activities because of the coming holidays, the

25     holiday season, and I can well understand that.  On the other hand, we

Page 9716

 1     can't -- we don't influence the holiday season of course, but because of

 2     the holiday season, we can't be forced to do an impossible task.  So I

 3     wanted to propose to cut the argument short, there are quite a number of

 4     arguments that I could put forward, I'm sure you are well aware of all

 5     that I could say in that respect.  Anyway, we have a list of witnesses,

 6     we have the summaries for the witnesses, and the exhibits prepared.

 7             Now, I wanted to propose the following to see what the reaction

 8     would be of the Prosecution although I did discuss this in principle, I

 9     touched upon the subject with Mr. Harmon a few days ago.  What we can do

10     is this:  If we were to start preparations for the Defence case

11     straightaway then by the 15th of December we could supply a list of

12     witnesses and the summaries, the witness summaries, and possibly on the

13     18th of January I was going to propose that we hold a pre-trial

14     conference, pre-Defence case conference with an introduction and then

15     move the presentation of evidence with witnesses for a week which would

16     allow the Prosecution to deal with the documents they are going to

17     receive on the 15th of December, and it will help us to breathe more

18     easily when we present our opening statement and when we go on to present

19     the Defence case.

20             So I think that this would be a rationale solution.  What I am

21     afraid of now, let me tell you quite frankly, we planning to go to

22     Belgrade, all of us, next week.  Now the fact that we are moving this up

23     will probably divide up our team.  One of our lawyers, one of the lawyers

24     work in English, the other works in Serbian, and this requires double

25     time.  So we have -- well, let me say a large number of documents without

Page 9717

 1     mentioning any specific figure which have still not been sent for

 2     translation, we are preparing to do that.  So what I would like to

 3     propose is this, and I'd like to ask the Trial Chamber for its

 4     indulgence, and to bear in mind that if a dead-line is set for the

 5     pre-trial brief being the 15th of December, to enable us to make a

 6     supplement with documents by the pre-trial conference on the 9th of

 7     January.

 8             And I know you don't like long arguments so I'll close soon, but

 9     this Defence team find itself in a very difficult situation when the

10     Defence counsel were changed.  It coincided with holidays.  We asked for

11     a very brief period of time to allow Mr. Guy-Smith to come into the

12     courtroom and to come on to the team.  So what I want to say is we had no

13     holidays then, no days off.  And now once again the holiday season and

14     there's this terrible pressure placed on the Defence team, and I don't

15     think we'll be doing a good job unless we are given a proper dead-line to

16     be able to get through everything we need to get through.  You thank.

17             JUDGE MOLOTO:  I have a very simple mind, Mr. Lukic, that's why I

18     like short answers.  And I'm not quite sure whether the answer to my

19     question is there in that whole speech.  I tried to listen very

20     carefully, I couldn't pick it up, you know.  You have been dealing now

21     with what I was going to deal with as the next item, disclosure by the

22     15th of December.  You are not dealing with, are we starting the case on

23     the 18th of January, which was my question.

24             Yes, on the 18th of January I'm thinking of having a pre-Defence

25     conference with evidence starting on the 19th.  Now, you want a week in

Page 9718

 1     between.  I still don't know why today you want a week in between because

 2     I'm still not aware of what it is that is going to keep you in The Hague

 3     longer than you anticipated in November, on the 4th of November.  You

 4     gave certain answers on the 4th of November anticipating that this week

 5     you are leaving The Hague.  I don't see -- I don't know what it is that

 6     is keeping you in The Hague this week.  Beyond this week.

 7             MR. LUKIC: [Interpretation] If we do not have a hearing, I

 8     thought that we were going to have another hearing, but if all is reduced

 9     to written submission including our negotiations with the OTP, I am sure

10     that we will all be able to leave The Hague this week.

11             Second of all, why did I mention the second thing?  If you

12     remember last time, Mr. Harmon said that he needed a list of witnesses

13     before, that the 15th of December is too late for him.  Then your

14     proposal was for us to submit the names of some of the witnesses for the

15     Prosecution to be able to prepare themselves, and that it should not be

16     the official list.  And the only thing that the Defence can do --

17             JUDGE MOLOTO:  [Overlapping speakers] first few witnesses that

18     you are going to start with so that they can prepare.

19             MR. LUKIC: [Interpretation] What we can do, we can submit a week

20     in advance, the names of the first three or four witness, we can submit

21     those to the OTP.  And then my next proposal in view of what Mr. Harmon

22     said about the time that he needs and in view of the holiday season, then

23     upon the return from the holiday, they will have another week to get into

24     gear and that would also give us time to prepare witnesses.  Maybe we

25     could hear from Mr. Harmon what his position is, whether this means

Page 9719

 1     anything at all to him or not, maybe I'm offering things that don't mean

 2     a thing to him.

 3             JUDGE MOLOTO:  If you think back to our discussion on the 4th it

 4     might not mean anything to him.  But let's let him speak for himself, he

 5     is here.

 6             MR. HARMON:  Your Honour, again I maintain the position I

 7     articulated earlier.  For us, the provision of a list of witnesses on the

 8     15th is something that while it is five or six weeks ahead of the

 9     commencement of trial, the reality of the holiday season around here is

10     that the language staff and members of the teams are on holidays,

11     generally speaking.  This place in my many years here becomes somewhat of

12     a ghost town.  That's the reality of this institution even when there are

13     ongoing trials.  That's why I suggested that we would need the list of

14     witnesses beforehand, before the 15th.  I maintain that position.

15             Now, Mr. Lukic has suggested that three or four witnesses who we

16     would get the names of three or four witnesses ahead of time.  First of

17     all, I don't know the size of those witnesses or the importance of those

18     witnesses, so it's difficult for me to respond.  They could be very minor

19     insignificant witnesses in which case I then would receive shortly a week

20     before the next witnesses would be called a set of witnesses who are

21     considerably more important, obviously more complex to prepare for, to do

22     the research on.

23             So I take little comfort from the suggestion that we get the

24     names of three or four witnesses at this point in time.  I would suggest,

25     Your Honour, that, you know, what would be more assistance to the

Page 9720

 1     Prosecution is if we receive the list of witnesses who the Defence

 2     believes would occupy the first two months of the trial.  That would give

 3     us time to prepare and continue our preparations but a list of witnesses

 4     a week ahead of time is not workable for us.

 5             So I believe I have articulated precisely what our concerns are.

 6     I reiterate those concerns, Your Honour.

 7             JUDGE MOLOTO:  Now you hear Mr. Harmon's position.

 8             MR. LUKIC: [Interpretation] The problem is created as a result of

 9     the upcoming holiday season.  That's the biggest problem.  The OTP on the

10     15th of December and for a month after that is not in a position to do

11     the job which puts me in a position that I do something that I can't do.

12     This team cannot provide a list of witnesses between -- before the 15th

13     of December, and I don't know why I should suffer because of that.

14     Because of the fact that the OTP has to rest between the 15th of December

15     and 15th of January, we are asked to do more than we can.

16             If the OTP had completed their case three weeks ago then we would

17     not be facing this problem.  We would still be in the stage where the OTP

18     would be working, we would be working, we would be able to provide them

19     with a complete list of witnesses before the 15th of December.  If they

20     had completed their case a month ago, we would be able to provide them

21     with the full list of witnesses, and they would have what they need

22     before the 15th of December.  And that's the crux of the problem, That

23     Defence has been put in a difficult position because of the beginning of

24     holidays.  The holiday season is ahead of us.

25             That's my suggestion was that we should put everything forward by

Page 9721

 1     seven days after the holiday season to give the OTP the time to prepare

 2     themselves and to work.

 3             JUDGE MOLOTO:  I hear that last suggestion.  It can be looked at.

 4     However, on the 4th when we spoke, the suggestion from Chamber had been,

 5     are you not able to give part of the list, and I didn't then envisage

 6     three our four witnesses, I thought maybe you could give ten or 15,

 7     something like that.  You estimated the length of the Defence case to be

 8     something like five months, so if Mr. Harmon asks for witnesses that

 9     would occupy two months, that seems to be -- I don't know, maybe you

10     could give them one month, witnesses that could occupy a month, but

11     not -- I wasn't anticipating two or three witnesses.  Just to start us

12     going with the case.

13             MR. LUKIC: [Interpretation] Mr. Guy-Smith will follow up on my

14     words, and I will first explain, and I can say that the Defence case is

15     not going to have minor witnesses or less important witnesses.  When I

16     say minor witness, I have in mind the crime-base witnesses that we saw at

17     the beginning of the trial.  A number of witnesses that we have been

18     working with and preparing them for testimony are such witnesses that

19     will -- each and every one of them will require at least one day for the

20     examination-in-chief.  And that's why when I said three or four witnesses

21     that we can submit the names of, maybe we can submit ten, but I can't be

22     sure at this moment of their sequence because I -- I can produce a list

23     of some ten witnesses that would come initially, but I cannot be sure of

24     their sequence before we have had a word with all of them.  But that I

25     will be able to do only when I'm in a position to submit the full, the

Page 9722

 1     complete list of witnesses.

 2             My colleague Mr. Gregor Guy-Smith has things to add.

 3             MR. GUY-SMITH:  [Overlapping speakers] read the transcript and

 4     the conversation between the Court and counsel during that transcript.

 5     I'm also quite concerned about our ability to adequately and properly

 6     prepare the Defence of this case in the period of time that we have, and

 7     I think that we are working in absolute good faith.

 8             I also understand Mr. Harmon's concern that while some of us

 9     labour, some of us rest, and he will not be able to labour, and that's a

10     legitimate concern on his behalf because he too needs to be prepared.

11     And I also see something else here which I think is of some importance

12     which is the Chamber's inclination and desire to have this case start on

13     the 18th or the 19th of January.

14             Whether these dates are -- whether any of these dates - at this

15     point I'm speaking about the 18th or 19th of January - are firm dates is

16     something that I know not, but everything that we are discussing is

17     predicated upon the firmness of that date.  If that date is not

18     considered by the Chamber to be a date which is set in stone, then

19     obviously some of this changes, and it gives people the ability to work

20     perhaps in a more measured manner.  I'm raising the issue not for

21     purposes of changing anything whatsoever, but only because there seems to

22     be an inherent tension in the calendar and a recognition on the part of

23     all parties that we are at that unfortunate time of the year when some

24     things go fallow.  I offer that as a thought, as a way to accommodate all

25     of the concerns that have been raised here.  All of which I think are

Page 9723

 1     legitimate concerns.  I think it would be most probably not only

 2     imprudent but irresponsible of the Defence to throw witnesses names at

 3     the Prosecution and at a later time juggle it up in a another fashion.

 4     We are trying to put together as focused a Defence as we can and as

 5     pertinent a Defence as we can dealing with the important issues that we

 6     believe exist at this time.  That requires -- that requires at a minimum

 7     the time-period that Mr. Lukic has suggested.  And I think that we are

 8     being quite responsible with regard to that time, but I offer as an idea

 9     the notion that perhaps another solution is to consider when the Chamber

10     wishes the trial to commence, appreciating of course the Chamber wishes

11     the trial to commence once the Prosecution has rested as quickly as

12     possible within the parameters obviously of those considerations that are

13     for the Defence, the ability to adequately and properly defend their

14     client.

15             JUDGE MOLOTO:  Thank you, Mr. Guy-Smith.  I don't think that the

16     date of the 18th is cast in stone.  But it was as you rightly say, the

17     sooner we can start the better.

18                           [Trial Chamber confers]

19             JUDGE MOLOTO:  [Microphone not activated] We are trying to look

20     at a date that might perhaps go somewhere to meet the parties.  A week

21     later is the 25th.  Would that be fine?

22             MR. LUKIC: [Interpretation] Yes, Your Honour.

23             JUDGE MOLOTO:  Mr. Harmon?

24             MR. HARMON:  Your Honour, it depends on when the production of

25     the documents and the --

Page 9724

 1             JUDGE MOLOTO:  15th of December.

 2             MR. HARMON:  15th of December for the complete trial brief and

 3     the complete list of exhibits and the complete list of witnesses intended

 4     to be called by the Defence, is that what I understand without any

 5     provision of identities of witnesses now who may be -- so we could start

 6     working properly?  If there is, for example, the production of the names

 7     and the identities and the materials relating to the first ten witnesses,

 8     and then the complete production on the 15th of December, I don't have a

 9     problem with that.

10             JUDGE MOLOTO:  Mr. Lukic, are you able to respond to that?

11             MR. LUKIC: [Interpretation] No, Your Honour.  I really -- there's

12     no chance for me to submit a list of witnesses, all the documents -- let

13     me just read all that.  I can't do that before the 15th of December.  The

14     rules are clear, 15 days before we bring in the witness we are supposed

15     to give them the schedule, so that means that if we give them the

16     pre-trial brief, the list of witnesses, and all the documents by the 15th

17     of December, that would mean that we would be two weeks in advance of the

18     arrival of our first witnesses, and this is not what the OTP did for us.

19             The OTP submitted the schedule of witnesses 15 days before the

20     arrival of the witnesses in the courtroom.  If the OTP wants to receive

21     something from us before the 15th of December, the only thing that we can

22     submit are the names of some witnesses.  There's no way I can provide any

23     documents or the pre-trial brief.  My proposal was for the pre-trial

24     brief to be submitted before the 15th of December according to the Rule

25     65G, and I also agreed that the 25th of January is the good time to begin

Page 9725

 1     our case.  15 days before the beginning of our Defence case the

 2     Prosecutor will be provided with the list of the witnesses that will be

 3     called during the first two weeks of the Defence case.

 4             MR. GUY-SMITH:  If I might say something just because I'm

 5     forecasting into the future, and I'm a bit concerned of what I can see

 6     happening in the future, so I want to put the marker down now.  We are

 7     trying to do everything we can to give the Prosecution as complete a file

 8     as we can in a short period of time as we can.  Realistically taking into

 9     consideration what we can physically and mentally do.

10             If the Prosecution seeks for there to be a greater than that and

11     in the future we come to this Chamber with requests for either the

12     submission of additional documents or additional witnesses by virtue of

13     the fact that we clearly have not been able to prepare adequately and

14     properly, then I trust that we will be receiving no objection whatsoever

15     from the Prosecution as to those additions.  Because if we are going to

16     be receiving objections from the Prosecution as to those additions, and

17     if there's going to be spirited argument with regard to that issue, what

18     is happening right now is unfortunately, and I don't mean any disrespect

19     whatsoever to Mr. Harmon, because I'm sure he has his own concerns, but

20     unfortunately what is happening is we are going to get set up.  The

21     Defence is going to get set up and we are going to be involved in this

22     situation that we do not wish to be involved in either with our

23     colleagues on the other side of the room or with the Chamber.  And we are

24     very concerned about that, which is why we are pressing for the position

25     that we've pressed for.

Page 9726

 1             JUDGE MOLOTO:  Okay.  Look, when the Chamber did say and it said

 2     so on the 4th of November that if you gave part of your 65 ter list, you

 3     would be allowed to supplement it later obviously because it was going to

 4     be known in advance that you are not giving a comprehensive list.

 5     However, I think we got to bring this discussion to a close, and I think

 6     the only way we can bring this to a close is to say to the Defence, give

 7     whatever list you can give, however comprehensive or not comprehensive

 8     that you can at your earliest to the Prosecution.  The Chamber has tried

 9     to meet the parties by saying okay we can start on the 25th.  The

10     Prosecution must try and meet the Chamber and everybody else by arranging

11     the holidays during the season such that there are people who can be

12     working on the lists that may be filed by the submitted by the Defence to

13     be ready to cross-examine when we come back.

14             We all work during holidays and some can stay here and work and

15     take their holiday when others come back.  I think that's the only way.

16     We cannot start much later than the recess period simply because people

17     had gone on holiday during recess.  It just means people are taking

18     double holiday.  I think the Prosecution will have to organise itself in

19     that manner.

20             We shall then start with opening statements on the 25th of

21     January.  On the 26th we start leading evidence.  Okay.  Thank you so

22     much.

23             MR. HARMON:  Your Honour, may I just intervene for one moment?

24             JUDGE MOLOTO:  Yes, Mr. Harmon.

25             MR. HARMON:  The current state of what I'm hearing Your Honour

Page 9727

 1     say is for the Prosecution somewhat vague in that there are no dead-lines

 2     or dates in terms of when the Defence must produce the materials to the

 3     Prosecution.  As I read what you said, you said "give the Prosecution

 4     whatever list you can" but I don't have a date for that.  And that would

 5     obviously affect our ability to do our work before the holidays commence,

 6     and during the holidays as well.  So if in fact the list is given a few

 7     days before the holiday commences, that puts us in one position.  If it's

 8     given to us before that time, that puts us in a different position.

 9             JUDGE MOLOTO:  I understood Mr. Lukic to be insisting on

10     complying with the rules, and my understanding of him was that you will

11     get a comprehensive list 15 days before the first witness comes into

12     court.  If anything can come earlier than that, he sees that as a bonus.

13     Now you can calculate 15 days before the 25th of January, that's when you

14     should be able to get -- that's when you should expect a comprehensive

15     witness and summarise list from the Defence.

16             I guess I'm summarizing you correctly, Mr. Lukic?

17             MR. LUKIC: [Interpretation] Correct, Your Honour.

18             JUDGE MOLOTO:  Anything they can give earlier than that is a

19     bonus.

20             MR. HARMON:  All right.  So, Your Honour, when you say a

21     comprehensive list, I take it you mean a comprehensive compliance with 65

22     ter G which are -- consists of a variety of elements.  Is my

23     understanding correct, Your Honour?

24             JUDGE MOLOTO:  If we are talking of compliance with the rules, I

25     think that should be what I mean.  G -- Mr. Lukic, I don't have to read

Page 9728

 1     65 ter G to you, you know what it says.  I've got it right in front of

 2     me, if you want it.

 3             MR. LUKIC: [Interpretation] That's correct.

 4             JUDGE MOLOTO:  [Overlapping speakers] You will be complying with

 5     that 15 days before the trial begins.

 6             MR. LUKIC: [Interpretation] Correct.

 7             JUDGE MOLOTO:  [Overlapping speakers] And anything you give

 8     earlier, you will give if you can.

 9             MR. LUKIC: [Interpretation] Correct, and before that we will try

10     and accomplish something before that and provide the OTP with things in

11     batches to allow them to start their preparations.

12             JUDGE MOLOTO:  Okay.  Is that clear now, Mr. Harmon?

13             MR. HARMON:  Your Honour, it is clear, but I think it compresses

14     two rules.  The rule that Mr. Lukic referred to, the 15 days before the

15     witnesses are called is what we normally do and what we did in terms of

16     complying with identifying the witnesses who were going to be called in

17     the next two weeks.  A 65 ter G compliance is a different issue.  And we

18     complied, for example, with our 65 ter obligations on the 1st of May

19     2007.  The trial started in this case on the 2nd of October 2008.  So the

20     Defence had a considerable period of time, more than 15 days, in which to

21     consider our witness identifications, summaries, list of exhibits, 92

22     ter, which element of the indictment the witnesses' testimony referred

23     to.

24             So there are two separate sets of considerations here.  When we

25     are discussing the 15 days ahead of the witness being called, that is a

Page 9729

 1     rule.  That's been a guide-line that we've had between the parties, but

 2     it's separate and apart from our 65 ter obligations which we complied

 3     with well over a year in advance.  And so there is a huge disparity

 4     between what the Defence proposes and what the Prosecution executed

 5     during the course of the pre-trial of this case, and so, again, 15 days

 6     before the commencement of the trial for this compliance is

 7     significantly -- it puts us at a significant disadvantage.  We are happy

 8     to receive the names and identities of the witnesses who will be called

 9     15 days ahead of time.  Those are my submissions, Your Honour.

10             JUDGE MOLOTO:  Thank you, Mr. Harmon.

11             You see, you are saying we are compressing two rules into one.

12     You are the one who raised 65 ter G that does Mr. Lukic mean that he is

13     going to comply with 65 ter G by the 15th.  But now I'm trying to look at

14     65 ter G, and I don't seem to see a time-limit.

15             MR. HARMON:  There is no time-limit.  The time-limit, Your

16     Honour, is set by an order of the Trial Chamber.

17             JUDGE MOLOTO:  That's right.  And now you are challenging that

18     order.

19             MR. HARMON:  No, I was trying to clarify something that Mr. Lukic

20     said suggesting that there was a 15-day rule that applied and it does not

21     apply to 65 ter G.

22             The Court can consider in the interest of fairness and the

23     ability of both parties to prepare a dead-line that it deems appropriate.

24     We obviously he will not challenge that dead-line, Your Honour.  But we

25     have put forth a series of considerations that we have and concerns that

Page 9730

 1     we have relating to our ability to prepare, bearing in mind, of course,

 2     as I said, that the time-period suggested by Mr. Lukic is considerably

 3     shorter than the period that the Defence had in receiving the materials

 4     under 65 ter.

 5             JUDGE MOLOTO:  Indeed.  You obviously couldn't expect at this

 6     stage to get these materials a year in advance like they did.  What would

 7     be a reasonable time for you?

 8             MR. HARMON:  May I have just a minute, Your Honour?

 9             JUDGE MOLOTO:  Yes, please.

10                           [Prosecution counsel confer]

11             JUDGE MOLOTO:  Mr. Lukic, just so everybody is clear.  You do

12     undertake to give a list of some few witnesses, ten or so, as soon as

13     possible, perhaps earlier than the 15th of December?

14             MR. LUKIC: [Interpretation] Mr. Harmon has asked to receive a

15     list of witnesses, he asked for those ten witnesses to get a list, the

16     order, and the documents that will be attached.  That's the sort of

17     package that we provided the 15 days before the witness comes into court.

18     So Mr. Harmon is right that that is not in keeping with Rule 65 ter G.

19                           [Defence counsel confer]

20             THE INTERPRETER:  Interpreter's note:  Could please all

21     unnecessary microphones be switched off.  Thank you.

22             MR. LUKIC: [Interpretation] The order of the first -- or rather,

23     the unofficial list of ten witnesses we can provide before December 15th.

24     That's right.  Yes.

25             JUDGE MOLOTO:  How soon?

Page 9731

 1             MR. LUKIC: [Interpretation] Just let me consult with my

 2     colleagues because this is rather a bigger problem.

 3                           [Defence counsel confer]

 4             MR. LUKIC: [Interpretation] Your Honours, I never liked guessing

 5     or speculating, and I don't want to do any guess-work now either, but we

 6     can provide it by the 5th of December.  By the 5th of December we will be

 7     able to provide a list with ten witnesses and that will probably be the

 8     order in which we'll have those ten first witnesses.

 9             Now, in the ensuing period, we'll be able to be more precise.

10     That is to say, before the Christmas break we'll be able to give the

11     Prosecution the order of witnesses we are going to start off with on the

12     25th, and I'm sure this will mean a great deal to Mr. Harmon.

13             JUDGE MOLOTO:  Now, [Microphone not activated] so that we

14     understand -- on the 5th you are giving a list of ten.  Is that just A,

15     B, C, D, of the witnesses you're going to call, no statements, no

16     summaries, no nothing, or is that with summaries?  It's the list.  I can

17     hear your manager say it's the list.

18             MR. LUKIC: [Interpretation] I can tell you that the list will be

19     sufficient to Mr. Harmon to begin with because there will be individuals

20     there whom he knows full well.

21             JUDGE MOLOTO:  Then on the 15th what do you give?

22             MR. LUKIC: [Interpretation] On the 15th of December what we can

23     give in conformity with Rule 65G, a list of witnesses and the summaries.

24     I do have some problems with the documents which under 65G should be

25     submitted but I'm afraid that I won't be able to present the entire list

Page 9732

 1     by the 15th of December, so I'll need additional time from you for that,

 2     please.

 3             JUDGE MOLOTO:  Does that clear you?

 4             MR. HARMON:  May I just have a moment to confer, Your Honour?

 5     I'm sorry that we keep going and changing the elements so I need to

 6     confer for just a moment.

 7             JUDGE MOLOTO:  B all means.

 8             MR. HARMON:  Thank you.

 9                           [Prosecution counsel confer]

10             JUDGE MOLOTO:  Yes, Mr. Harmon.

11             MR. HARMON:  I'm just trying to resolve, Your Honour, the text of

12     this and my understanding of it because I want to be perfectly clear so

13     there's no misunderstandings.  On the 15th of December it is my

14     understanding that the Defence will provide -- will conform with the

15     terms of Rule 65G in its entirety.  And therefore, prior to that we

16     will -- on the 5th of December, there will be a list of ten witnesses in

17     the order.  On the 15th of December, we'll have the list of witnesses,

18     their factual summaries, and the remainder of the 65 ter G compliance.

19     If that's what we are talking about, then we have no problem.

20             JUDGE MOLOTO:  Except that Mr. Lukic adds "but I'm afraid I won't

21     be able to submit the entire list by the 15th of December so I'll need

22     additional time from you for that, please."  I'm not claiming to

23     understand that.  I don't know how long -- how much time he is going to

24     ask for, what is it that is not going to be complied with by then.

25             MR. HARMON:  That would be certainly something that would be

Page 9733

 1     worth clarifying at this early stage, Your Honour.

 2             JUDGE MOLOTO:  Are you able to clarify that, Mr. Lukic?  I don't

 3     know.  I'm actually beginning to wonder whether wouldn't it be fruitful

 4     if the two parties can sit down and talk and then come here and say

 5     judge, we'll give you -- we'll start -- we'll get this on that day, we'll

 6     get that on that day, we'll get that on that day?  I have a feeling that,

 7     and I'm not blaming anybody for it, parties usually play their cards to

 8     their chest particularly in the presence of the Chamber.  But you are

 9     more open with each other when you are on the terrace having coffee and

10     talking.

11             MR. HARMON:  We can certainly explore it, Your Honour.  But

12     ultimately I think the decision rests with the Trial Chamber.

13             JUDGE MOLOTO:  Of course.

14             MR. HARMON:  So I'm happy to take a recess, we can make sure we

15     understand each other, we may agree to disagree, or we may not accept

16     what the proposal is, but obviously it's up to the Trial Chamber to make

17     the ultimate decision and we accept so.

18             JUDGE MOLOTO:  Yes, for me, or for the Chamber rather, we would

19     like to start on the 25th of January and move on as smoothly as

20     circumstances permit.

21             MR. HARMON:  We understand the Court's desires and when they want

22     to start the case.  Obviously the Court understands our concerns of when

23     we want to have compliance with Rule 65G in its totality.  And so that is

24     something we can discuss with -- if we take a break, I'm happy to do so.

25             MR. GUY-SMITH:  Your Honour, if I might, it seems to me there are

Page 9734

 1     a couple of matters that are presently open for discussion as between the

 2     parties.  There's some issues about some MFI documents which we are

 3     clearly going to be trying to resolve, and I think for the most part we

 4     will get resolved.  Here is another issue.  So it seems to me that we can

 5     have a fruitful discussion dealing with both of these matters.  I have a

 6     sneaking suspicious that a hurried discussion right now will not bring to

 7     fruit the kinds of results that the Chamber will want.  There are a

 8     couple of matters that need to be dealt with, I think we are in a

 9     position to deal with them and deal with them in such a way that the

10     Defence is not disadvantaged by the schedule that is presently sought by

11     the Prosecution.  And I would remind the Chamber, and I would remind the

12     Prosecution quite gently we are but two, I see four attorneys sitting

13     across from us.  I came into the case quite late and we have been working

14     diligently, we will continue to work diligently, and perhaps if we have a

15     chance to have a meaningful conversation with each other we can come back

16     to the Chamber in a way that allows for that.  I don't think it's a short

17     recess, Your Honour, I think there's some things that need to be thrashed

18     out.

19             JUDGE MOLOTO:  I understand that, but my other problem, the flip

20     side of that solution is that I don't want you gentlemen and lady staying

21     here beyond this week and then not being able to come back in time with

22     your obligations because you stayed longer.  This is the argument that I

23     was given a little earlier by Mr. Lukic.  I would like to chase you out

24     of The Hague as soon as possible.

25             MR. GUY-SMITH:  Okay.  Well, and no offence to The Hague, we'd

Page 9735

 1     like to get out of here as quickly as possible.  So perhaps what would be

 2     fruitful is if we -- I think we are getting close to the time to stop in

 3     any event, and we can sit and chat with each other, and if we could get

 4     back to you in 45 minutes to an hour.

 5             JUDGE MOLOTO:  That's fine.

 6             MR. GUY-SMITH:  We'll inform your -- Srdjan, the legal officer,

 7     and take it from there.

 8             JUDGE MOLOTO:  Thank you so much.  We'll take a break.

 9                           --- Recess taken at 3.30 p.m.

10                           --- On resuming at 4.16 p.m.

11             JUDGE MOLOTO:  Who goes first?  Is it you, Mr. Harmon?

12             MR. HARMON:  I'm happy to go, Your Honour, first.  Let me just

13     say that we did meet over the recess, and we are in agreement with what

14     was stated in the course of the hearing.  And that is as follows:  On the

15     5th of December, it is agreed that the Prosecution will receive the names

16     of ten witnesses.  On the 15th of December, there will be full compliance

17     with 65 ter G except as it relates to the exhibits.  We will receive on

18     the 15th of December a partial list of exhibits.  On the 10th of January,

19     we will receive a complete list of exhibits.

20             JUDGE MOLOTO:  Okay.  And we can make that an order of court.

21             MR. HARMON:  We are satisfied with that.  I think I've accurately

22     related what our agreement is, and if the Defence confirms that then the

23     Court can make an order of the court.

24             MR. LUKIC: [Interpretation] Yes, I confirm, Your Honours, that

25     that is the agreement we reached and whenever we reach an agreement with

Page 9736

 1     the Prosecution, I always have my doubts that something is not in order.

 2     But this time we really have reached an agreement as Mr. Harmon has just

 3     put it, and it will be our joint proposal by both parties.

 4             JUDGE MOLOTO:  Okay.  Then just to resolve that point, the

 5     Chamber then gives an oral order to the effect that on the 5th of

 6     December, the Defence will deliver to the Prosecution a list of the names

 7     of at least ten witnesses.  Secondly, that on the 15th of December, the

 8     Defence will comply with 65 ter G -- the requirements of 65 ter G except

 9     as it relates to exhibits.  And the 10th of January, the Defence will

10     deliver to the Prosecution a complete list of exhibits.  So ordered.

11             MR. HARMON:  In your order, Your Honour, may I just ask that you

12     include one element that wasn't ordered, and that is on the 15th of

13     December, the Defence will provide a partial list of exhibits to the

14     Prosecution.

15             JUDGE MOLOTO:  Well, I thought when I said it will comply with 65

16     ter G except as it relates to exhibits, that means it is a partial list.

17     Okay.  Will give a partial list of exhibits by the 15th, and --

18             MR. LUKIC: [Interpretation] That's right.

19             JUDGE MOLOTO:  I guess these exhibits are exhibits that relate to

20     the first few witnesses.

21             MR. LUKIC: [Interpretation] That's the problem.  The problem is

22     that the list of documents which we are going to provide to the first

23     witnesses which we have been instructed to do by you 48 hours before the

24     witness comes into court.  So we are going to try and provide as many of

25     those as possible.  However, the list of witnesses or rather the

Page 9737

 1     documents attending the witnesses are to be sent to the Prosecutor 48

 2     hours prior to the witness coming in to court which is what the

 3     Prosecution did for us.

 4             So the only problem is that we get the documents back from

 5     translation on time, but we'll do our best to provide a certain number of

 6     documents to the Prosecution.

 7             JUDGE MOLOTO:  [Overlapping speakers] ... whatever a simple mind.

 8     Now you are clouding the whole issue.  My question is very simple.  The

 9     partial list of exhibits that you are going to give on the 15th of

10     December, my understanding is would mean nothing if they relate to

11     witnesses that are going to be called in June next year.  I would expect

12     that that list of exhibits would be a list of exhibits that relates to

13     the witnesses that are going to be called at the beginning of the case.

14     And that's all I was trying to check with you.

15             MR. LUKIC: [Interpretation] It is our aim -- well, I have it to

16     take up a bit of time, I know you don't like it, but when the witness

17     comes in on the 25th of January, my aim is to introduce as many documents

18     as I can through that witness, so I'm going to do my best to provide the

19     Prosecution with as many of those documents as I can.  I'm just afraid of

20     whether we'll be able to have the complete picture by the 25th of

21     January.  But we'll do our best to provide the Prosecution with these

22     documents by the 15th of December, the ones that we tend to introduce

23     through the witnesses we shall be calling.

24             JUDGE MOLOTO:  If I must interpret Mr. Harmon's gesture, you are

25     saying that's fine?

Page 9738

 1             MR. HARMON:  That's fine, Your Honour.  Yeah, I understand him to

 2     say he is going to give us what documents that relate to the first ten

 3     witnesses, and the remaining documents will be given to us two days ahead

 4     of time subject to a limitation on possibly translations.  That's what I

 5     understand him to be saying.  That is acceptable to us.

 6             JUDGE MOLOTO:  Thank you.  And I thought I saw my ALO saying that

 7     I must insist on the start of the case, I think the start of the case is

 8     the 25th, that's water under the bridge, we have agreed.  Okay.  On which

 9     day it will be opening statements, evidence the following day.

10                           [Trial Chamber and legal officer

11                           confer]

12             JUDGE MOLOTO:  Yes, naturally, pretrial -- pre-Defence conference

13     will be on the 25th.  Right.

14             How many -- how long do we think that the Defence case is going

15     to be?  We've got an idea on the 4th of November, Mr. Guy-Smith.  I just

16     wanted to repeat it in your presence so that you confirm.

17             MR. LUKIC: [Interpretation] Let me repeat the same thing, what I

18     said last time, along with the proviso that I made.  So globally speaking

19     our Defence case should last between four and five months.

20             JUDGE MOLOTO:  Thank you.

21             MR. LUKIC: [Interpretation] I think that most probably when we

22     provide the official witness list with the time we wish for examination,

23     that is to say on the 15th of December, you'll have a clearer picture of

24     what we want.  And, of course, the final decision will be up to you.

25             JUDGE MOLOTO:  Okay.  Let me just check something before ...

Page 9739

 1             Okay.  That concludes the issues that we wanted to raise as the

 2     Chamber, unless, Judge, you have anything you want to raise?  Judge?

 3                           [Trial Chamber and legal officer

 4                           confer]

 5             MR. LUKIC:  Your Honour, just one second.

 6             JUDGE MOLOTO:  Okay.  You first.

 7                           [Defence counsel confer]

 8             MR. LUKIC: [Interpretation] I would like to raise one issue just

 9     to hear the Trial Chamber's position because it will be useful to us in

10     preparing our motion.  As the Defence understands, there are certain 65

11     ter documents of the Prosecution which the Defence might like to use

12     during its presentation of evidence.  Now, since those documents are

13     Prosecution documents and they are aware of them, is it necessary for us

14     to put those documents on the list or simply during the Defence case to

15     ask that the witness be shown a document from the Prosecution 65 ter

16     list?

17             I've discussed this with Mr. Guy-Smith and I consider that since

18     there are documents available and open to both parties, then there is no

19     reason for us to put those documents down on our list, but if we need to

20     use them, we will just inform the Prosecution before the witness comes in

21     that we are going to use one of their 65 ter documents which is not an

22     exhibit, for instance.

23             JUDGE MOLOTO:  Mr. Harmon.

24             MR. HARMON:  Our position is that if the Defence intends to use

25     the exhibit, then they should put it on the list, and I refer to 65 ter G

Page 9740

 1     subpart (ii) which specifies that if they intend to offer the exhibit,

 2     then it needs to be identified.

 3             JUDGE MOLOTO:  [Microphone not activated] I want to say in

 4     addition to what you said at least if you have written the title of the

 5     document and if they have it I'm sure they can just pull it out and read

 6     it.  I don't know how you operate, but at least for them to know in

 7     advance that that document is going to be used.

 8             MR. LUKIC: [Interpretation] Well, Your Honours, that's what you

 9     had during the trial.  When a document crops up which is not on the list

10     but has been disclosed to the Defence, for example, so we consider that

11     since these documents are on the 65 ter list of the Prosecution, they are

12     Prosecution documents and therefore have been disclosed.  So we consider

13     that the very fact that they have awareness of their documents they know

14     what they are about, so within the 45 hour time-limit we will of course

15     be telling the Prosecution that we are going to bring up their document

16     and present it to the witness without putting down all this mass of

17     documents that we might be using, we consider it sufficient that it

18     suffices that the Prosecution knows that it's one of their documents and

19     then we send them 48-hour notice that we shall be using that document

20     during the trial.

21             JUDGE MOLOTO:  Is what you are proposing in compliance with 65

22     ter G(ii)?

23             MR. LUKIC: [Interpretation] Yes, that's what I think too, the

24     very fact that the document is on the Prosecution 65 ter list, by that

25     very fact, I don't have the obligation to place it on my list.  Because

Page 9741

 1     the document is well known to the Prosecution, it was on the Prosecution

 2     list in the first place, and I think that suffices.  That is enough in

 3     itself.  So when I ask the witness -- or rather, when 48 hours before I

 4     examine the witness I tell the Prosecutor that I'm going to use such and

 5     such a document from their list, I think that's enough.  That's all right

 6     then.

 7             JUDGE MOLOTO:  Well --

 8             MR. LUKIC: [Interpretation] What I can do technically is just to

 9     do a formal bit of business and say that on my 65 ter list I'm going to

10     put down all the Prosecution 65 ter documents, all their documents on my

11     list, but I think that it's just too much work and that we are being too

12     formal in something that could be very simple.

13             JUDGE MOLOTO:  I understand what you are saying, Mr. Lukic, but I

14     don't think that what you are saying is what Mr. Harmon is saying.  And I

15     think what Mr. Harmon is saying is what appears on the rule book and the

16     last sentence of paragraph 2 of 65 ter G says:

17             "The Defence shall serve on the Prosecutor copies of the exhibits

18     so listed."

19             Now, if you don't want to give them copies of the exhibits so

20     listed, I think that is what you must agree with your colleague on the

21     opposite side at that time because you are now introducing an amendment

22     to an undertaking you have made.  You have made an undertaking to comply

23     with Rule 65 ter G.  Now you want to amend that undertaking, and I think

24     when you do do so, it's up to you to sort it out with your colleagues on

25     the opposite side.

Page 9742

 1             MR. GUY-SMITH:  I understand the Chamber's position.  I

 2     understand what Mr. Harmon said.  And if that's what the Prosecution

 3     wants, then so be it.  It's a terrible waste of time, it's a terrible

 4     waste of trees, it's a terrible waste of CD disks.  I can assure you of

 5     all of those things but if that's what he chooses to have, he knows what

 6     the 65 ter list is.  There are a number of documents on the 65 ter list

 7     that the Prosecution chose not to introduce.  We will be using those

 8     documents.  We will be informing the Prosecution of those documents in

 9     the appropriate time-period before the witness testifies, but if he

10     wishes to have a complete list along that fashion, so be it.  I think

11     it's -- to be perfectly honest with you, I think it's quite foolish, and

12     I think it's a terrible terrible waste of time and resources, but that's,

13     you know, certainly not my call.

14             JUDGE MOLOTO:  Nor is it the Chamber's call.  It's the call of

15     the parties, you know.  Okay, that's the rule and it says that.  I had

16     said that brings us to the end of our Chamber, I realise no, I'm wrong.

17     The Chamber would like to put you to terms on your objection to the MFI

18     exhibits so that we can bring that matter to finality.  Okay.  How soon

19     can your motion come through?

20             MR. GUY-SMITH:  We will be filing a motion with the Chamber no

21     later than next Wednesday.

22             JUDGE MOLOTO:  Thank you.  Okay, and then the normal time-limits

23     will run for response and what have you.  Okay.  Thank you so much.

24     Anything from the Prosecution on housekeeping?

25             MR. HARMON:  No, Your Honour, thank you.

Page 9743

 1             JUDGE MOLOTO:  From the Defence?

 2             MR. LUKIC: [Interpretation] No, thank you.

 3             JUDGE MOLOTO:  I think then that brings us to the end of our

 4     session.  We can safely postpone to the 25th of January, just to make

 5     sure that you are out of The Hague as soon as possible, can we?

 6             MR. LUKIC: [Interpretation] The only problem where the Defence is

 7     concerned is this, and I'll conclude by saying that ...

 8                           [Trial Chamber and Registrar confer]

 9             JUDGE MOLOTO:  Sorry, Mr. Lukic.

10             MR. LUKIC: [Interpretation] This should have been just a brief

11     comment following your words, we want to leave The Hague as soon as

12     possible because we have something that we should inform the Trial

13     Chamber about.  Yesterday in Serbia the swine flu epidemic was

14     proclaimed, so that's where we are going.

15             JUDGE MOLOTO:  [Microphone not activated] okay.  Then the court

16     stands adjourned to the 25th of January.  We can't give the time or the

17     court, we have got no schedule for January.

18             MR. GUY-SMITH:  If I might, the Defence wishes the Chamber a good

19     holiday season.

20             JUDGE MOLOTO:  You just took it out of the Chamber's mouth.  The

21     Chamber wanted to say you have a very good holiday, come back well

22     rested, work hard during the holidays, be ready to start on the 25th at

23     full steam.  Land in The Hague running.  Okay, and to you too.  Court

24     adjourned.

25                           --- Whereupon the hearing adjourned at 4.36 p.m.

Page 9744

 1                           to be reconvened on Monday, the 25th day of

 2                           January, 2010.