Tribunal Criminal Tribunal for the Former Yugoslavia

Page 21475

 1                           Thursday, 22 May 2008

 2                           Pre-Defence Conference

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.06 a.m.

 6             JUDGE AGIUS:  Good morning, Madam Registrar.  Could you call the

 7     case, please.

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

 9     IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.

10             JUDGE AGIUS:  I thank you, ma'am.

11             For the record, all the accused are present.

12             I see all the Defence teams present here, with some new faces.

13     We will come to that very soon.  And Prosecution, it's just Mr. McCloskey

14     this morning.  So, Mr. Zivanovic, good morning to you.

15             MR. ZIVANOVIC:  Good morning, Your Honours.  I just like to

16     introduce our new legal assistant, Filippo de Minicis, he is sitting with

17     us today.  Thank you.

18             JUDGE AGIUS:  Filippo -- could you repeat the surname, please.

19             MR. ZIVANOVIC:  Filippo de Minicis.

20             Mr. DE MINICIS:  Good morning, Your Honours.  Good morning to

21     everyone in the courtroom.  My name is Filippo de Minicis, legal

22     assistant for Mr. Zivanovic.

23             JUDGE AGIUS:  Thank you.  You are most welcome.  I also notice a

24     new arrival as co-counsel in the Borovcanin Defence team.  Mr. Gosnell,

25     on behalf of the Trial Chamber I wish to welcome you.  This is a kind of

Page 21476

 1     system rather which is quite different from what you are used to at home.

 2     You will get used to it as we go along.  I'm sure you have been

 3     sufficiently briefed on how we operate here.  But I'm sure that you will

 4     find your way without much ado.

 5             I also notice a new face in the Pandurevic team, even if it's

 6     behind the column.

 7             MR. HAYNES:  Yes, that's Ms. Kinga Tibori.  She is a legal

 8     assistant.

 9             JUDGE AGIUS:  Thank you, Mr. Haynes.  So I think we can start.

10             But before we start, I think we owe a tribute to your

11     predecessor, Mr. Gosnell, Mr. Miodrag Stojanovic.  He's been with us here

12     since the beginning of the case.  He was counsel here, lead counsel, in

13     another case.  He's a very capable lawyer who distinguished himself in

14     more ways than one.  He was capable, he prepared his case on a daily

15     basis.  He was courteous towards the Trial Chamber and to his colleagues

16     both on the Defence and the Prosecution side.  He did a great job

17     together with Mr. Lazarevic.  And we are thankful for his services.  We

18     will miss him and we ask you, Mr. Lazarevic, to convey to him our best

19     wishes for whatever lies ahead in his career which so far has been

20     brilliant enough.  Thank you.

21             So the reason why we are convened here today is the outcome of

22     the filings that took place pursuant to Rule 65 ter(G), and also because

23     we felt that pursuant to Rule 73 ter, we should exercise our discretion

24     to hold a Pre-Defence Conference.

25             In preparation for this Pre-Defence Conference, we asked our

Page 21477

 1     Senior Legal Officer, Mr. Cubbon, to convene and preside over a 65 ter

 2     meeting with you, with a view to preparing better the various Defence

 3     cases that we have scheduled for the coming months.  I wish to thank you

 4     all for attending the 65 ter meeting although there were some

 5     shortcomings that could have been avoided but which I will avoid going

 6     into, and I also wish to thank Mr. Cubbon for having conducted the

 7     meeting in such an admirable manner.  We went through the transcript of

 8     the meeting, and we also had a very detailed report by Mr. Cubbon or from

 9     Mr. Cubbon, which puts us in a position to take up the issue of the

10     preparation of the Defence case where it was left at the end of the 65

11     ter meeting.

12             There are some matters that are not going to be discussed, but

13     which need to be recorded.  First thing is we asked and we are informed

14     that Mr. Cubbon did inform you that one of the expert witnesses, some of

15     you intend to offer, whether he will be accepted is another matter of

16     course, is Professor William Schabas and we wanted you to know that

17     Professor Schabas is and has been a very close personal friend of mine

18     and of Judge Prost for a long number of years, not that it mattered much

19     to us, but we wanted you to know about this.  We understand that this has

20     been brought to your attention, both Defence teams and interested Defence

21     teams and Prosecution, and that according to you, there is nothing that

22     you wish to state on the matter.  In other words, that no further action

23     is needed.  That is what we have been told.  So I'm just putting this

24     down in the record and for the record.

25             Now the main purpose of the 65 ter meeting, and of course this

Page 21478

 1     Pre-Defence Conference is, as I have already said, the planning of the

 2     remainder of the trial.  In introducing the subject, I refer you to

 3     Rule 73 ter with the title Pre-Defence Conference, which inter alia

 4     empowers the Trial Chamber to call upon the Defence to shorten the

 5     estimated length of the examination-in-chief for some witnesses, empowers

 6     equally the Trial Chamber, after hearing submissions from the Defence, to

 7     set the number of witnesses the Defence may call.  And last, but not

 8     least, authorises the Trial Chamber to determine the time available to

 9     the Defence for presenting evidence.  I'm mentioning all this not because

10     we have in our mind decided in one way or another to put into effect any

11     of these three measures.  As you will recall, our approach from the

12     beginning of the trial has been that if you are reasonable, we will

13     endeavour to be even more reasonable, and in that manner try to move

14     ahead and achieve the greatest efficiency.

15             We gave it a try.  And having done our homework, we considered

16     the following.  We considered that during the Prosecution case, the

17     Prosecution used 266 hours, we used very little time and mostly in

18     disposing of procedural matters, and the seven Defence teams altogether

19     used 413 hours, which is 48 per cent of the total sitting time.  We were

20     aware of this when earlier on in the year, after hearing your

21     submissions, we decided that it was reasonable to grant you three months

22     for the preparation of the various Defence cases.  We did so for two

23     reasons, mainly.  One of the reasons is that this is indeed a very

24     complicated and complex case involving serious crimes and involving

25     perhaps one of the most significant events in the history of the war in

Page 21479

 1     ex-Yugoslavia, and we felt that adequate time was necessary to that

 2     extent for a proper preparation of the Defence, but it could also have

 3     been shorter.  Why didn't we fix a shorter time?  Because we were led by

 4     you all, I would say, I wouldn't distinguish between one and the other,

 5     to believe that this will not be labour lost; this will be a useful

 6     exercise which would ultimately translate in a Defence case which would

 7     be shorter and reasonably shorter than what we would otherwise -- what

 8     one would otherwise expect.  And these were our expectations.

 9             Now, I must confess, and this is not just my opinion but the

10     opinion of everyone here, that we do appreciate the effort made by some

11     of you in doing their utmost to limit the length of the Defence -- of

12     their Defence case.  But we are still concerned that we haven't reached

13     the optimum or what we had expected.

14             In preparation for the 65 ter meeting, we discussed this with our

15     Senior Legal Officer and we gave him strict instructions to discuss the

16     matter of the expected length of Defence cases with you, communicate to

17     you our concerns, and invite you to consider possible reductions in your

18     Defence case, respective Defence cases.  He reported back to us and today

19     this will constitute one of the most important, perhaps the focal, issue

20     of the Pre-Defence Conference.

21             The way we are going to proceed now is a very simple one.  I am

22     not going to recall or repeat what was discussed during the 65 ter

23     conference because that is common knowledge, but I am going to call on

24     each one of you to inform the Trial Chamber if you have considered areas

25     where you think reductions on your part are possible.  At the end of this

Page 21480

 1     exercise, we will take stock of the situation, after which we will take a

 2     decision.  At the present moment, as I said, we have no plans at all to

 3     take one rather than another decision.  That very much depends on what

 4     will be the outcome of the discussions today.

 5             We are going to start with the Beara Defence team and we are

 6     going to start with the Beara Defence team not because we want to single

 7     the accused Beara -- single out the accused Beara, but it's because we

 8     consider, having gone through the details of the filings by the

 9     Beara Defence team, that the anticipated or the suggested Defence case by

10     that team is excessive, when it comes to time needed for its completion.

11     Some information was exchanged during the 65 ter meeting, and what we

12     would like to know from the Beara Defence team now is whether there are

13     any intentions on your part to put in place any reductions in your

14     Defence case.  Mr. Ostojic?

15             MR. OSTOJIC:  Thank you, Mr. President, Your Honours.  Good

16     morning.  Yes, we've discussed that briefly among our team members and I

17     also spoke to the Court Senior Legal Officer and we have indicated that

18     we will make some reductions.  We don't know exactly if the Court will

19     consider them to be significant but we will consult with our client this

20     afternoon and tomorrow and I've also invited the Prosecution to sit down

21     with us tomorrow, all day if necessary, in order to meet some of the

22     Court's guidelines on this issue.

23             JUDGE AGIUS:  But that's too vague.

24             MR. OSTOJIC:  Is the Court looking for a specific number from us?

25             JUDGE AGIUS:  What the Court is looking for is concrete

Page 21481

 1     information, Mr. Ostojic.  It's already the second time, during the

 2     65 ter meeting we got nothing out of Mr. Meek.

 3             MR. OSTOJIC:  I'm sorry that the Court feels that and I can tell

 4     the Court that --

 5             JUDGE AGIUS:  But we got nothing out of Mr. Meek and the main

 6     reason being probably that you were not present and we are getting

 7     nothing out of you or almost nothing out of you today.

 8             MR. OSTOJIC:  I'm sorry the Court feels that way.  I'm being very

 9     sincere with the Court when I said that we looked at all the witnesses

10     again, we will pare it down, I can't give the Court a specific number

11     without consulting with my client.  He was yesterday with a family visit

12     all day and the last several days.  I think we can pare it down by 20 per

13     cent, if the Court wants me to make a guesstimate but that obviously,

14     Mr. President, depends on many factors such as the Court's ruling on the

15     92 bis suggestions that we made.  If in my meeting with the Prosecution

16     they are able to agree that certain witnesses can be brought in under

17     Rule 92 bis, certainly we will remove them.  We think there is some

18     duplication.  I don't think that it's more than 20 per cent.

19             We think it's necessary to show some of the facts and I did hear

20     the Court's message on some of the pre-1995 issues but, with all due

21     respect, I think it's necessary in light of the Court's most recent

22     ruling where they suggested that pattern, conduct and intent for crimes

23     subsequent to the dates that are in the indictment are indeed relevant

24     and I think that those in 92 which we will draw upon but ever so briefly

25     for the Court are important and relevant in this case.  I can assure the

Page 21482

 1     Court we are working vigorously to reduce the list and I can tell you

 2     that right now from my best guesstimate I can say that I would suggest

 3     that there would be a 20 to 25 per cent cut from the original list but do

 4     I have to check with all team members and Mr. Beara as well.

 5             JUDGE AGIUS:  Okay.  Let us put one thing clear for the record,

 6     Mr. Meek, that our intervention in all this and our part in all this is

 7     in no way related to whether any witness or piece of evidence that you

 8     intend to bring forward is relevant or not.  We are in no way telling you

 9     eliminate what is not relevant because we are not prepared to tell you

10     whether a piece of evidence is relevant now as things stand.  That is

11     your responsibility and we'll deal with it as we go along.

12             So the position is as follows:  There is a validity and a lot of

13     sense in what you've just said in relation to outstanding possible

14     Rule 92 bis and Rule 92 ter witnesses.  And those are pleasures yet to

15     come.  We'll still need to receive feedback from the Prosecution on the

16     various motions that have been filed.  I am not sure if you have filed

17     your motion on Rule 92 bis and 92 ter.  I don't recall having seen it.

18             MR. OSTOJIC:  I believe we have, Your Honour.

19             JUDGE AGIUS:  You have?  Okay.  So what we will expect is an

20     answer, a reply, from Mr. McCloskey, and that should put us in a position

21     not only in relation, in regard your client but also in relation to the

22     other Defence teams, what the position is, because there are various

23     Defence teams that have asked for witnesses to be heard via the Rule 92

24     bis and 92 ter procedure.

25             All right.

Page 21483

 1                           [Trial Chamber confers]

 2             JUDGE AGIUS:  Mr. Ostojic, the last thing having heard what you

 3     plan doing after consultations with your colleagues and also with

 4     Mr. McCloskey, is we would like you to state here when you expect to be

 5     in a position to give a concrete answer to the Trial Chamber.

 6             MR. OSTOJIC:  I'm confident I can do that by the end of business

 7     tomorrow, Your Honour, if the Prosecution is available to meet with me

 8     tomorrow, I'm available all day to meet with him and willing to meet with

 9     him and I'm quite confident that we will be able to resolve most of the

10     issues to give you that exact answer.

11             JUDGE AGIUS:  I thank you.  That's reasonable, Mr. Ostojic.

12     Mr. McCloskey?

13             MR. McCLOSKEY:  Yes, Mr. President, we work very well with the

14     Beara team.  We only need the 92 bis statements for that to work and I

15     know they know that and so if that is coming, we will be able to manage

16     that rather quickly but we do need those statements.

17             JUDGE AGIUS:  That's what I meant when I hadn't seen them

18     actually, but -- Mr. Ostojic.

19             MR. OSTOJIC:  Yes, Mr. President?

20             JUDGE AGIUS:  When will you be in a position to provide the

21     Prosecution with the 92 bis statements?  Even in draft form?

22             MR. OSTOJIC:  Thank you for that, Judge Kwon.  We don't --

23             JUDGE AGIUS:  Because you had a time limit to do that and that

24     passed already and you haven't.

25             MR. OSTOJIC:  Mr. President, we typically don't get the signed

Page 21484

 1     statements from the witnesses and I will give him everything we have

 2     including some of my notes so long as it's not privileged in my opinion.

 3     I may even share that with him because I'm confident that he's not going

 4     to divulge it but I think he'll be reasonably satisfied that he'll have

 5     more than enough information.  And for the record if I may just point out

 6     from my opinion, I think our summaries were quite extensive and should

 7     have provided adequate or more than adequate information to the

 8     Prosecution and that they were able to at least make an estimate as to

 9     how long each of those witnesses may potentially be cross-examined, but I

10     will however continue to endeavour to provide him all the information

11     that we have within the Rules so that he can be fully satisfied.

12             JUDGE AGIUS:  Thank you, Mr. Ostojic.

13                           [Trial Chamber confers]

14             JUDGE AGIUS:  Let's clarify this because as I'm sure you know,

15     Mr. Ostojic, that for the purpose of Rule 92 bis or 92 ter for that

16     matter, what is required from you to provide the Prosecution or the other

17     party is not witness summaries, it's the full statement of that or those

18     witnesses.  And that is what is missing.  So what you are required and

19     what Mr. McCloskey will certainly expect from you before he can make a

20     reasoned decision is the statement or statements of your witnesses and

21     not the summaries.  This is why I'm asking you whether you are in a

22     position to provide them in good time, if you intend to come back to us

23     with a corrected forecast of your Defence case.

24             MR. OSTOJIC:  Mr. President, I think I'm prepared and I'm ready

25     to proceed with the Prosecution at his convenience.

Page 21485

 1             JUDGE AGIUS:  Is there a possibility that you meet between today

 2     and tomorrow, Mr. McCloskey?

 3             MR. McCLOSKEY:  Yes, Mr. President.

 4             JUDGE AGIUS:  Thank you.  Thank you both.

 5             Now, Mr. Zivanovic.

 6             MR. ZIVANOVIC:  Yes, Your Honours.

 7             JUDGE AGIUS:  Same questions to you.  Your case, when we worked

 8     our calculations, also is expected to take pretty long.  You have, of

 9     course, this pending question of the Prosecution reopening of its case,

10     which probably will need to be decided by the Appeals Chamber but we'll

11     come back to you soon on that.  But forgetting that, and irrespective and

12     independently of that, have you done any homework following the 65 ter

13     meeting, which leads you to some possible reductions in your Defence

14     case?

15             MR. ZIVANOVIC:  Yes, Your Honours, we reduced our list, we shall

16     drop one witness from the list, and we shall reduce some time for the

17     examination-in-chief of some other witnesses.  Some of the common

18     witnesses will appear in the case of the other accused.  These are

19     Mrs. Danijela Danojlovic, Mr. Milenko Jevdjevic and our common expert,

20     Mr. Djuro Radic.  I intended to file a notice to the Chamber today or

21     tomorrow, and you will have all details.

22             JUDGE AGIUS:  That's very kind of you, Mr. Zivanovic.  Thank you.

23     Do you wish to state anything in regard, Mr. McCloskey?  I don't think

24     so.

25             MR. McCLOSKEY:  No, Mr. President.

Page 21486

 1             JUDGE AGIUS:  Thank you.

 2             Madam Nikolic?

 3             MS. NIKOLIC: [Interpretation] Good morning, Your Honour.

 4             JUDGE AGIUS:  Good morning to you.  It's more or less the same

 5     issue.

 6             MS. NIKOLIC: [Interpretation] Yes, Your Honour, we have taken

 7     into consideration -- may I continue?

 8             JUDGE AGIUS:  Yes, go ahead.

 9             MS. NIKOLIC: [Interpretation] We have taken into consideration

10     the suggestions that we were given through the Senior Legal Officer, in

11     those areas where assistance and reduction is expected in the

12     Nikolic Defence case.  What I can say for the moment is that the Defence

13     has decided concerning one viva voce witness related to the

14     Zvornik hospital area, to put him on as a 92 ter witness, to reduce the

15     time of examination.  As for a group of witnesses related to year 1992,

16     we had had a number of contacts with the Office of the Prosecutor in

17     order to stipulate the facts that these witnesses could possibly testify

18     about.  So that in case agreement is reached, this could considerably

19     reduce the Defence case for accused Nikolic.  As for the 92 bis witness

20     statements, we will spend next week working in the Zvornik area and we

21     expect to be able to submit the results of this mission after that work

22     is done.

23             JUDGE AGIUS:  Thank you, Madam Nikolic.  When you say as for the

24     92 bis statements -- sorry, witness statements, are you referring to

25     Witnesses 12, 16 and 19?  Or to someone else?

Page 21487

 1             MS. NIKOLIC: [Interpretation] As for 12, 16 and 19, two

 2     statements have already been attached to our 92 bis statements and the

 3     only missing statement is for the Witness 396.

 4             THE INTERPRETER:  The interpreter is not sure if she had the

 5     number correct.

 6             JUDGE AGIUS:  Which witness has a missing statement?

 7             MS. NIKOLIC: [Interpretation] I will tell the Chamber

 8     immediately.  There are four 92 bis witnesses for whom we have not

 9     provided statements and we have informed the Chamber accordingly.  Those

10     are numbers 3 --

11             THE INTERPRETER:  Could the counsel read them again slowly?

12             MS. NIKOLIC: [Interpretation]

13             JUDGE AGIUS:  Can you read them out again slowly, please, for the

14     interpreters?

15             MS. NIKOLIC: [Interpretation] Of course.  3DV15, 3DV16, 3DV18,

16     and 3DV27.

17             JUDGE AGIUS:  So the position as regards these four witnesses is

18     what, if you could state it again?

19             MS. NIKOLIC: [Interpretation] The situation is that we will see

20     these witnesses next week again and try to take statements signed by

21     these witnesses and attach them to our 92 bis submission within the

22     shortest time possible.

23             JUDGE AGIUS:  All right.  Thank you, Madam Nikolic.  Otherwise,

24     there are no other areas where you propose reductions, I take it?

25             MS. NIKOLIC: [Interpretation] Not for the moment, Your Honour.

Page 21488

 1             JUDGE AGIUS:  Thank you.  Thank you, Madam.  Mr. Lazarevic?  Or

 2     Mr. Gosnell?

 3             MR. GOSNELL:  Thank you, Your Honour, for your welcome this

 4     morning.  I'm going to address the Chamber briefly on this.  As you know,

 5     Your Honour, from having looked at the -- our submission, of course,

 6     you'll know we are starting from a rather low base.  We are proposing to

 7     call a total of 19 witnesses, two of them are joint, and of those, three

 8     will be 92 bis witnesses.  So that leaves 14 of our own witnesses.  Our

 9     plan is to try to, in your words, optimise the Court's time by exploring

10     the possibility of additional 92 ter or 92 bis statements and we hope to

11     ensure that our case is kept to an efficient scope.  We will of course

12     advise the Chamber as soon as possible, make a filing indicating when we

13     know whether that will be a possibility.

14             JUDGE AGIUS:  Thank you, fair enough, Mr. Gosnell.

15     Madam Fauveau?

16             MS. FAUVEAU: [Interpretation] Mr. President, we can say to the

17     Chamber that we will certainly withdraw at least two of our witnesses.

18     For the moment I'm not in a position to say which witnesses they will be

19     because obviously we have to make a very specific choice.  Also, for

20     witnesses 23 and 24 on our list, we are envisaging seriously to present

21     them according to Article 92 ter of the Rules.  The only thing which we

22     will ask from the Chamber is to grant us time to prepare the statements

23     and we will contact these witnesses and we'll make an appointment with

24     them so we may need to have enough time to give these statements.  Also,

25     we envisage to shorten the time necessary for our examinations on direct

Page 21489

 1     which would reduce also the time indicated, which I think was 70 hours,

 2     so we could reduce it to about 58 hours, and of course we will explore

 3     other possibilities, possibly to present other 92 ter witnesses or to

 4     shorten certain cross-examinations.  We also have seven witnesses who are

 5     common to other teams of Defence which would enable us to reduce more the

 6     time necessary because I'm sure that cross-examinations will be covered

 7     by other teams of the Defence.

 8             JUDGE AGIUS:  Thank you, Madam Fauveau.  Incidentally, in

 9     relation to the time that you have expressed you would -- you stated you

10     would need for the purpose of filing 92 ter motions, I mean, the idea as

11     I understand it, will be that we will start the Defence teams according

12     to the indictment.  So it will be quite some time before your turn comes

13     up, even if everyone shortens his Defence case, even if there is a

14     significant reduction.  But in any case, there is also a second option,

15     that there is a beginning and an end with an intervening period of time

16     to every Defence case, and you can, in addition, plan to have these 92

17     ter witnesses if the motion is granted brought forth for

18     cross-examination towards the end of your case rather than in -- near the

19     beginning.

20             All right?

21             MS. FAUVEAU: [Interpretation] Yes, Mr. President.  Thank you very

22     much.

23             JUDGE AGIUS:  In any case should you require the assistance of

24     the Trial Chamber we will, as we have done in the past, provide you with

25     it.  And not just to you but to all of you.

Page 21490

 1             Mr. Josse, Mr. Krgovic, I don't know who is going to address the

 2     Chamber.

 3             MR. JOSSE:  Your Honour, there were two issues that Mr. Cubbon

 4     raised at the 65 ter conference.  The first relates to witnesses

 5     testifying on the roles of morale, religious and legal affairs sectors at

 6     both corps and brigade levels and how they interacted with the

 7     Main Staff.  That issue we can categorically state will be one we will be

 8     able to reduce the amount of witnesses we propose to call, either by

 9     physically reducing the number or by producing 92 bis and/or 92 ter

10     witness statements.  We are, I repeat, very confident that that issue

11     will be reduced.

12             The other issue that the Trial Chamber brought to our attention,

13     that is the whereabouts of General Gvero in late July of 1995, is frankly

14     rather more problematic.  Our investigation has indicated a significant

15     number of people, up to 100, I'm told, who say they saw General Gvero at

16     that time in the western part of Bosnia.  We have already cut the list

17     down considerably.  That being said, let me make it clear our

18     investigation has not finished in this regard and the Trial Chamber will

19     be aware that this became a live issue in the case relatively late on and

20     that is why the investigation is still ongoing.

21             Mr. Krgovic and I have discussed the issue at some length

22     following the 65 ter Conference and we are going to try and produce 92

23     bis and/or 92 ter witness statements for some, if not all, of the people

24     involved.  Frankly, Your Honour, we think it unlikely that 92 bis

25     applies, although any guidance in that regard would be most gratefully

Page 21491

 1     received but we would have thought a suggestion by a Defence team that an

 2     accused was not where the Prosecution allege that he was must be a matter

 3     that goes to the acts and conduct of that accused and therefore not

 4     suitable for a 92 bis statement.  Therefore, it's going to have to be 92

 5     ter.

 6             What Your Honour has just said to my learned friend Madam Fauveau

 7     is something we are most delighted to hear because, frankly, we are not

 8     going to be in a position to tender those statements for a considerable

 9     period of time and bearing in mind what you've just said to her, the

10     Trial Chamber clearly are saying that they don't need to be tendered for

11     a considerable period of time.  That being said, we can assure the

12     Trial Chamber we will get on and do our best to produce these various

13     statements.  But it will take primarily Mr. Krgovic's own personal

14     attention and these witnesses are spread over different parts of Bosnia

15     so it's something he's going to have to do as this trial progresses.  I

16     hope that assists.

17             JUDGE AGIUS:  Okay.  Thank you.  However, related to all this,

18     and I meant to refer to this later on, but you may sit down, Mr. Josse,

19     there is a matter of great importance that I want you to address your

20     minds to, that planning each of the Defence cases is not only our

21     problem.  It is primarily our problem but we would like to make it clear

22     that whoever is before you or whoever is coming after you also needs to

23     have a clear indication of when to expect their case to come up.  Let me

24     give you an example.  I mean, when I look at the filings of the

25     Gvero Defence team, forgetting for the time being what you have more or

Page 21492

 1     less promised today, that you will make a serious effort, which I'm sure

 2     you will, to convert several of these viva voce witnesses into 92 bis or

 3     more probably 92 ter witnesses, irrespective of whether they are going to

 4     be 92 bis or 92 ter, there will be a significant saving on time which

 5     would expectedly reduce your Defence case but that would mean that the

 6     Pandurevic case will start earlier or would be expected to start earlier.

 7     And you should also be aware that if the one before you, and you have got

 8     four -- you've got five before you, do exactly the same thing, then what

 9     you may be playing for, I don't know which month later on this year or

10     next year, may prove to be a wrong estimate, and you will be faced with a

11     position where you have to start -- you would find yourself in a position

12     where you have to start your Defence case within or much earlier than you

13     expected, with the consequence that perhaps the Rule 92 ter statements

14     have not yet been obtained and with the further result that the expected

15     saving on time will be lost.

16             So this is why we are saying planning is very important for us,

17     but you should understand, and I'm sure you understand, that it is almost

18     more important for you because the case is yours at the end of the day.

19             MR. JOSSE:  Thank you very much.  Of course, we are aware of

20     that, and we will try and do things with as much expedition as possible.

21     So far as Mr. Haynes's position is concerned, ironically, he and I were

22     discussing that very subject last night, namely, clearly he would need to

23     know how long we are going to take --

24             JUDGE AGIUS:  Obviously.

25             MR. JOSSE:  -- because he comes immediately after us.  He'll no

Page 21493

 1     doubt confirm that we are in the Gvero team very aware as to how that's

 2     going to impact on the Pandurevic team.

 3             JUDGE AGIUS:  Yes, obviously.  And thank you for that because I

 4     was a little bit taken aback when you used the -- or you interpreted my

 5     words, it's not a criticism, don't misread me, that I was sort of happy

 6     with Madam Fauveau or with yourself taking as much time as you think you

 7     need for the preparation of the 92 ter statements.  It could well be, and

 8     I'm saying this from experience, and fortunately, I have a longer

 9     experience than -- in trials than any of you here, it could well happen

10     that, for example, the Popovic team anticipates so many hours and will

11     end up with -- using one half of that, you could well end up with another

12     Defence team reducing, as we go along, the number of witnesses.  I mean,

13     in the previous case I dealt with, for example, the number of witnesses

14     were halved in the course of the Defence case and the Defence case took

15     almost one fourth the time of what we had authorised and what was

16     expected.  So that was just one accused.  Here we have seven.  So each

17     one of us should be expected to be prepared for this.  Now, for the time

18     being I'm only saying this because later on I will touch on a very much

19     related subject that was not discussed during the 65 ter meeting, but

20     which is on our mind and which again mostly based on past experience of

21     the four of us, we are sure carries a lot of importance and we want to

22     make sure that you are fully aware of what our intentions are.  But I

23     thank you, Mr. Josse.  I take note of what you promised or you undertook

24     to do in the forthcoming days and weeks, and we expect positive results.

25             Mr. Haynes?

Page 21494

 1             MR. HAYNES:  Rightly or wrongly, I'm working on the assumption

 2     that I will present my case this calendar year.  I don't know why but

 3     that's just the way that I read the 65 ter lists ahead of me.  I'm

 4     anticipating that I will have to present my case towards the end of this

 5     year.  And we are ready for that.  You will know that our 65 ter list is

 6     different from many others in that it contains two very substantial

 7     witnesses, I have very much in mind the shape of my case, it will begin

 8     with one of them and end with the other.  And depending upon the extent

 9     of the challenge to the principal Defence witness, I anticipate losing an

10     awful lot of witnesses thereafter but those two witnesses are going to be

11     substantial and they will form the body of my case.

12             I think we began with 23 witnesses.  Seven of which I think are

13     paper witnesses.  We've lost another 3 to other Defence teams.  It's in

14     hand.  I know the shape of it.  It will take weeks, not months, to

15     present my case.

16             JUDGE AGIUS:  Okay.  Thank you, Mr. Haynes.

17             So rounding up this part of the -- yes, Madam Fauveau?  I

18     apologise to you.  I didn't see you.

19             MS. FAUVEAU: [Interpretation] Mr. President, excuse me, I would

20     simply give a few corrections to the notes.  Page 15, lines 1 and 3, what

21     I meant and I think everybody understood me, but just to be sure that

22     everything is clear, it's not cross-examinations but direct examinations,

23     which we will make an effort to shorten.

24             JUDGE AGIUS:  [Microphone not activated] The rest doesn't depend

25     on you, Madam Fauveau.  Thanks, so I would round up this first part of

Page 21495

 1     the discussions today and basically the position is this:  Ultimately

 2     what will be decided by the Trial Chamber, because the decision will need

 3     to be taken in any case, will depend on the revised estimates that we

 4     expect from you and which you promise, some of which I suppose you are

 5     already ready, in a position to provide us with.  Others will probably

 6     require a little bit more time.  But we enjoin you to put us in the

 7     picture as early as possible, and this will be to your benefit.  It's not

 8     just to our benefit.  It's mainly to your benefit.

 9             The other obviously caveat depends on the ultimate decisions that

10     will need to be taken in relation to applications for witnesses to be

11     heard under Rules 92 bis or 92 ter, possibly 92 quater and we are not

12     prepared to anticipate anything there because all depends on documents

13     that apparently some of which have not yet been provided, and of course,

14     we will need to await the -- to hear what the position of the Prosecution

15     is in regard.  And that again can affect on the ultimate decision that we

16     will take.

17             Also, in relation -- we will start with the Popovic Defence case

18     first, so in the case of Popovic, these particular issues need to be

19     determined the earliest possible.  Don't forget that on the 2nd of June

20     we start again, and we have to have a very clear position as to how long

21     that case is going to take, not only because we need to know but also

22     because the Beara team needs to know and the rest of you need to know

23     because your cases will come up pretty soon.  So rounding this up, we

24     will await for further information, and following which we should be in a

25     position to hand down the appropriate rulings or decisions, part of which

Page 21496

 1     will need to be immediately before we start with the Popovic Defence

 2     team.

 3             I am going to move on to another subject, which was touched upon

 4     during the 65 ter meeting and following which we were given the relative

 5     information by Mr. Cubbon.  And that's opening statements.

 6             Now, the position as we know it until now is that the --

 7     Mr. Zivanovic intends and requests 45 minutes for an opening statement.

 8     Is that correct?

 9             MR. ZIVANOVIC:  Yes, that's correct, Your Honour.

10             JUDGE AGIUS:  That Mr. Ostojic also requests the opportunity to

11     make an opening statement, but Mr. Meek was not in a position to tell us

12     what time will be required.

13             MR. OSTOJIC:  No more than one hour and 30 minutes, Your Honour.

14                           [Trial Chamber confers]

15             JUDGE AGIUS:  And the Nikolic Defence team gave an indication

16     that no -- there is no intention to have -- make an opening statement; is

17     that correct?

18             MS. NIKOLIC: [Interpretation] Correct, Your Honour.

19             JUDGE AGIUS:  The Borovcanin Defence team was not in a position

20     to indicate the time needed for an opening statement.

21             MR. LAZAREVIC:  Yes, Your Honours, at this stage I really -- it's

22     very hard to make an estimation.  I believe it won't last more than one

23     and a half hours but I really cannot say this at this stage.

24             JUDGE AGIUS:  Miletic, same?

25             MS. FAUVEAU: [Interpretation] Yes, Mr. President.  I think it's

Page 21497

 1     pure speculation to make an estimate.  I'd prefer for the moment not to

 2     make an estimation.

 3             JUDGE AGIUS:  Gvero Defence team indicated one hour.

 4             MR. JOSSE:  It's an approximation, Your Honour, but yes.

 5             JUDGE AGIUS:  And Pandurevic, no intention to make an opening

 6     statement?

 7             MR. HAYNES:  A bit early to say, but unlikely that I will.

 8             JUDGE AGIUS:  All right.  Now, without committing ourselves to

 9     the time that you will be allotted or allocated for the opening

10     statements, there is one problem, and that arises in relation to the --

11     or in the wake of the request made by the Beara team, the Beara Defence

12     team.

13             I will refer you, Mr. Ostojic, to Rule 84 with which I am sure

14     you are very familiar and our recollection, our recollection I can assure

15     you it is correct, is that when we started this case, you opted to make

16     an opening statement which you did, and it seems to us that what the Rule

17     states is that you have an option, you can make it then or you can make

18     it later but you have no right to make two statements.  What do you have

19     to say to that?

20             MR. OSTOJIC:  Mr. President, I read the rule actually and I

21     respectfully disagree with the Court if that's the Court's position.  It

22     doesn't give me an option.  It doesn't exclude me specifically and

23     expressly from giving an opening statement at the commencement of my

24     Defence case.  I think it's a reasonable request, I think the time that

25     I've stated is reasonable.  I think it might be necessary for the Court

Page 21498

 1     in order for us to be able to summarise in a nutshell what our evidence

 2     will be, at that time we didn't have much of that evidence.  Prosecution

 3     certainly from time to time has amended their witnesses and some of the

 4     theories in their case.  I think the Rules do not prohibit me

 5     respectfully from presenting an opening statement before my Defence case.

 6             JUDGE AGIUS:  Yes, can you show us where the Rule does not

 7     prohibit you?

 8             MR. OSTOJIC:  Specifically the Rule, Your Honour, does not say

 9     that you have only one option and you can expect to either have an

10     opening at the beginning of the trial or at the beginning of your Defence

11     case.  I do not read the Rule that way.  I've looked for the decisional

12     authority on that.  I did not find some.  Respectfully, I think that's a

13     narrow reading and approach to the Rule.

14                           [Trial Chamber confers]

15             JUDGE AGIUS:  Mr. McCloskey, do you have -- do you take a

16     position on this?

17             MR. McCLOSKEY:  Yes, I think the Rules are very clear about that

18     and only one opening statement.  However, I don't object to a short

19     opening statement, especially Mr. Ostojic likes to talk about me a lot

20     and that's no problem.

21             JUDGE AGIUS:  All right.  Our position on this is going to be

22     determined now, Mr. Ostojic and Mr. McCloskey.  Mr. Ostojic, you will be

23     allowed to make an opening statement only if you show good cause.  You

24     will be asked to show this good cause when your Defence case comes up.

25     We'll determine then whether you have shown a sufficient good cause and

Page 21499

 1     we will also determine the time that you will have available for your

 2     opening statement, if that is granted.  Now as regards I just want for

 3     the record to confirm the position as it has been communicated to us by

 4     Mr. Cubbon.  We have been indicated that -- there is no intention, at

 5     least for the time being, that Mr. Popovic or Mr. Beara make a statement

 6     of their own.  Mr. Zivanovic?

 7             MR. ZIVANOVIC:  That's correct.

 8             JUDGE AGIUS:  Mr. Beara?  Mr. Ostojic?

 9             MR. OSTOJIC:  That's correct, Mr. President.

10             JUDGE AGIUS:  Okay.  I don't seem to have a definitive answer as

11     regards Mr. Nikolic.  Mr. Bourgon?

12             MR. BOURGON:  Good morning, Mr. President.  This is a matter

13     which is still very much under consideration and at this time I can say

14     that Mr. Nikolic -- there is a possibility for either a statement or

15     testimony on his behalf.  Thank you, Mr. President.

16             JUDGE AGIUS:  I thank you for that information, Mr. Bourgon.

17     Mr. Borovcanin and Mr. -- and General Miletic, I take it that none of

18     them wish to make a statement?  Madam Fauveau?

19             MS. FAUVEAU: [Interpretation] It's quite possible my client will

20     not make a statement but maybe -- it's much too early.  It's most

21     probable that he won't make a statement, such a statement.

22             JUDGE AGIUS:  Thank you.  And Mr. Lazarevic?

23             MR. LAZAREVIC:  Our position is very much the same as

24     Madam Fauveau's.  It is unlikely but I cannot exclude anything.

25             JUDGE AGIUS:  Thank you.  And now we come to you, General Gvero.

Page 21500

 1     Mr. Josse?

 2             MR. JOSSE:  Well, I appreciate that General Gvero unlike any of

 3     the other accused in this case did elect to make a Rule 84 bis statement

 4     prior to the commencement of the trial or presentation of evidence

 5     perhaps I should say.  The way I would invite the Trial Chamber to leave

 6     this is the way they have with the opening statement so far as the Beara

 7     case is concerned.  Basically, review the situation as and when it arises

 8     and that allow us to make an application and if good cause is shown, to

 9     consider the matter.

10             JUDGE AGIUS:  Thank you.  Our concern, if you can call it a

11     concern, because it's not a concern actually but General Gvero already

12     made a statement at the beginning of the trial, and we followed that

13     statement with great attention and giving it all due importance.  And he

14     is indicated as giving evidence later on.  So obviously the question

15     arises, if he's going to give evidence, why should he elect to make an

16     unsworn statement before?  I mean --

17             MR. JOSSE:  Could I give this?  Could I have a moment?

18             JUDGE AGIUS:  Yes.

19                           [Defence counsel confer]

20             MR. JOSSE:  We can give a categorical assurance that it will only

21     be one or the other.  If we ask leave for a further 84 bis statement, he

22     will not give evidence from the witness box.

23             JUDGE AGIUS:  I see.  That makes more sense.  That makes more

24     sense obviously because obviously you would have asked the same question,

25     I'm sure.

Page 21501

 1             MR. JOSSE:  Absolutely, Your Honour.

 2             JUDGE AGIUS:  Why should he make a statement at 9.00 in the

 3     morning lasting maybe 15 minutes or 20 minutes and then at 9.20 he starts

 4     giving evidence?

 5             MR. JOSSE:  Your Honour, there is no secret about this.  He is on

 6     the list as one of our witnesses because he may gave evidence on his own

 7     behalf.  That decision will not finally be made until the appropriate

 8     time.

 9             JUDGE AGIUS:  Fair enough.  Thank you.  I appreciate that,

10     Mr. Josse.  Yes, Mr. McCloskey?

11             MR. McCLOSKEY:  Yes, Mr. President, this is a rather serious

12     issue for us.  So as this decision is made I'm sure counsel will tell me

13     because should he elect to try to make another statement we would be

14     insisting in a motion that we cross-examine him, that we be able to ask

15     him questions about that.  Of course, that's not a problem if he

16     testifies, but if he -- we will be insisting to cross-examine him if he

17     gets the second bite at the apple.

18             JUDGE AGIUS:  Thank you.

19             So that, I think, disposes of the issues of opening statements.

20             The next item on my agenda is the order in which the Defence

21     cases are to be presented, and I'm stating this just for the record.

22     According to the report that I have from Mr. Cubbon, which I'm sure you

23     will confirm, at the 65 ter meeting it was confirmed by the various

24     Defence teams that they would be presenting their evidence in the order

25     in which the accused are listed in the indictment.  The consequence of

Page 21502

 1     that is that the Popovic Defence team will go first and he will be

 2     followed according to the list of the accused in the indictment.

 3                           [Trial Chamber confers]

 4             JUDGE AGIUS:  Now we are again coming to some very serious

 5     business, starting with one aspect of it which is not very serious but

 6     which will lead to various questions, and this is the point that I was

 7     trying to make earlier on when I said that I will come back to you and

 8     try to alert you to big problems that we can foresee and which can become

 9     a big handicap of progress of this trial as we go along.

10             Now, the Popovic Defence team, in anticipation of knowledge,

11     confirmation, that they would be the first to -- they would be the ones

12     to go first, have provided the Trial Chamber with a witness testimony

13     schedule for the month of June.  This was filed confidentially, and so I

14     will not mention much more than I have.

15             We wish to thank you, Mr. Zivanovic, for having done this in a

16     timely fashion, but also because it opened our eyes to various problems

17     which we wouldn't have been able to ask Mr. Cubbon to deal with during

18     the 65 ter meeting.

19             First of these problems is the expected testimony of Miladin

20     Kovacevic.  This is an expert witness.  Now you have provided his report

21     in the original language, which is the B/C/S.  The translation of his

22     report is not yet ready, at least to my knowledge, unless it was

23     finalised yesterday.  And you schedule this guy to testify on the 6th,

24     between the 6th and the 9th of June.  Mr. Cubbon asked you during the 65

25     ter meeting when you expect the translation to be ready.  You said it's

Page 21503

 1     expected soon, but that Mr. Kovacevic could safely be moved to the second

 2     part of June if the translation is not ready soon.

 3             So I see you trying to stand up, anxious to give the information

 4     to the Trial Chamber, so I will stop here for the time being and see what

 5     information you can give us.  Mr. Zivanovic?

 6             MR. ZIVANOVIC:  Yes, Your Honour, we moved his testimony for

 7     July, and you will be informed about it through our notice which will be

 8     filed today or tomorrow.

 9             JUDGE AGIUS:  And in the meantime, what are you going to do with

10     the days of the 6th and the 9th of June when you had anticipated to bring

11     this?

12             MR. ZIVANOVIC:  We make a schedule of our witness list and you

13     will get it.

14             JUDGE AGIUS:  Thank you for that information.  It is also

15     important because Mr. McCloskey, in the meantime, there is also another

16     motion from the Popovic Defence team seeking to add, in relation to this

17     witness, to add some more exhibits to the 65 ter list, and we enjoin you

18     to come forward with your response to this motion at the earliest

19     possible because ultimately it does have some bearing, albeit little, on

20     when Mr. Kovacevic can be brought forward to give evidence.

21             MR. McCLOSKEY:  I can tell you, having given this kind of notice,

22     I'm not going to be objecting to a 65 ter list motion.  If it's on the

23     65 ter list, no problem.  Whether it's admissible or not that's the crux

24     of it for me so I don't have a problem with it.

25             JUDGE AGIUS:  In other words, can we decide it orally here and

Page 21504

 1     now?

 2             MR. McCLOSKEY:  Yes, absolutely.

 3             JUDGE AGIUS:  Okay.  So let's proceed immediately with granting

 4     the motion.  The motion was filed on the 21st of May by the

 5     Popovic Defence team, seeking an addition to the 65 ter list of Defence

 6     exhibits that are exclusively relevant to expert witness

 7     Miladin Kovacevic.  The Trial Chamber has heard Mr. McCloskey for the

 8     Prosecution declaring that he -- the Prosecution has no objection to

 9     this, to the granting of this motion.  The Trial Chamber therefore grants

10     the motion and the Popovic Defence team is authorised to add the

11     documents mentioned or attached to the motion to the 65 ter list

12     accordingly.

13             Now, what is the problem that we wanted to alert you to?  And

14     again, please try to understand that in dealing with this, we are not

15     trying to be finicky, we are basing ourselves on past experience.

16             In the present case, past experience is even more important

17     because we are dealing with a -- not just one or two accused but seven

18     accused with one Defence case coming immediately after or following

19     immediately after the other.

20             Without in any manner wanting to be interpreted as saying the

21     following within a context of equality of arms or parity of arms between

22     Prosecution and Defence, experience has taught us that a Defence team,

23     albeit the most organised of all Defence teams, doesn't have behind it

24     the structure that the Prosecution has.  I know that the Tribunal offers

25     all the assistance that is required to bring in witnesses and do whatever

Page 21505

 1     is necessary to procure the presence of witnesses here in The Hague, but

 2     not everything depends on the Tribunal.  Much depends on how early you

 3     act, how long you cast your view in order to be able to plan properly,

 4     problems that could arise, such as, for example, bad planning on the team

 5     that has come before you, contingencies, you will I'm sure encounter

 6     problems, you will find witnesses that have promised to come over but

 7     which now have changed their mind and decide that they don't want to come

 8     over and they tell you this at the 11th hour.  We have encountered such

 9     problems with the Prosecution, and irrespective of the fact that the

10     Prosecution is perhaps better placed to deal with these problems, and

11     irrespective of the fact that the Prosecution has got a better support

12     structure at its disposal, we still encountered problems and there were

13     days when we were faced with the following -- either of the following

14     situations.  "Your Honours, we are finishing with this witness earlier

15     than expected, we are afraid we don't have any further witness for the

16     remainder of the week."  Or, "Your Honours, a witness who we intended to

17     bring forward on Monday will not be coming and we can't make it in time

18     to replace the witness with another."  And all this is understandable.

19     These are problems which unfortunately have arisen and which will

20     continue to arise.  If the Prosecution has found itself in the

21     impossibility of finding a remedy to at least these two problems but

22     there are also others, I'm sure that the Defence teams will not be in any

23     better position.  If anything, I think you will have more problems in

24     trying to sort out these problems.  And the bottom line is that you need

25     to embark as from now on very careful planning, very careful planning.

Page 21506

 1             You have witnessed what has happened throughout this year and a

 2     half.  We've had witnesses that were anticipated to last two days, three

 3     days, in the witness box giving evidence, and who lasted half the time,

 4     witnesses who lasted longer, and that is going to happen again, and there

 5     is no way we can forestall that and avoid it unless we fix a maximum time

 6     within which each testimony has to be concluded.  But again, we have

 7     tried to be as flexible as we could with you and we've tried to impose as

 8     little time limits as possible.  But we don't want that to be translated

 9     into time loss.  I was going to say wasting of time but I prefer to use

10     something more neutral because I'm sure that any such happening will not

11     be intentional but it would just be accidental.  So our responsibility is

12     your responsibility.  Together, we have a responsibility to show the

13     utmost respect to those that created this Tribunal and who finance this

14     Tribunal.  There is no way we can remain passive to any loss unnecessary

15     or unavoidable loss of -- avoidable loss of time.  So we need to make an

16     effort to move forward with the minimum possible loss of time.

17             For this, you need to plan.  For this, you need to plan.  And you

18     need to plan ahead because you may encounter problems with visa

19     requirements, if a visa requirement is required by the Dutch authorities.

20     You will recall we even had a problem with one witness coming here being

21     returned to Kenya and having to come back again at major expense and

22     costs to the Tribunal.  We have a responsibility to try and avoid these

23     things happening as much as possible.  I'm not putting any blame on the

24     Prosecution for that occurrence.  The Prosecution had done everything

25     within their power to get the witness here in time for his witness but it

Page 21507

 1     did not materialise.  So you need to do this as an ongoing exercise.  We

 2     very much enjoin you to do your utmost not to put us in a position where

 3     we come on any particular day and you tell us, "We are sorry, but the

 4     Dutch authorities," for example, "have not yet issued a visa to our

 5     witness."  Yes, I know that you require to have an approximate date for

 6     the testimony of the witness before you can apply for a visa because the

 7     visa will be also limited in time but this is why you need to do very

 8     serious planning, very serious planning.

 9             We are telling you this because I'm sure that you would want to

10     know that we are seriously concerned about this problem.

11             We would love to hear any suggestions that you may have on this

12     subject, but we have no words which are sufficient enough and strong

13     enough to reflect well the concern that we have in our mind.  We know

14     that if you don't help yourselves in this, you will put the Trial Chamber

15     in a position when it will have to intervene, when it will have to

16     intervene.  So forewarned is forearmed, but more than a warning, this is

17     an exhortation to you all to do your utmost when it comes to planning,

18     not to put the Trial Chamber in a position where it has to face a public

19     criticism for losing time unnecessarily or which would be avoided.

20             We'll have a 25-minute break now and we will reconvene

21     afterwards.  Thank you.

22                           --- Recess taken at 10.34 a.m.

23                           --- On resuming at 11.02 a.m.

24             JUDGE AGIUS:  Thank you.  Recapitulating and before we move to

25     the next point, what we would require you to do, very briefly put, is

Page 21508

 1     that each one of you examines the revised list of witnesses, make sure at

 2     the earliest possible time, even tomorrow, if possible, of the

 3     availability when they are available because what we certainly want to

 4     avoid is coming here and finding an unpleasant surprise, which could be

 5     restricted or limited to one particular, the same Defence team, or could

 6     extend to the other Defence team.  We don't want a situation where, for

 7     example, Mr. Zivanovic, all of a sudden decides that -- and this

 8     happens -- that it pays more his client to forget about the last two,

 9     three witnesses, for one reason or another, we wouldn't go into that, and

10     renounces to those last two, three witnesses.  What would be the

11     consequence then?  What we don't want is to come here the following day,

12     with Mr. Ostojic and Mr. Meek, if he's still here, saying, "Sorry, we are

13     not in a position to start our case before another two weeks because we

14     were anticipating the Popovic Defence case to last two weeks longer."

15     This is what you need to avoid and I think it requires cooperation

16     amongst you, in other words team work, plus cooperation and careful

17     planning.

18             Now, I'm coming back to you, Mr. Zivanovic.  You have -- you

19     don't need to stand up.  You have shown an indication that you will be

20     requesting for two witnesses, at least, to testify via videolink.  We

21     enjoin you to file the necessary motion at -- it's filed already?  Thank

22     you.  Because this requires time.  In other words, they can't fix a

23     videolink from one day to the other.  And these two witnesses are

24     scheduled to testify quite early in your Defence case, so you need to

25     liaise with whoever will help you with the videolink, if the motion is

Page 21509

 1     granted, because we still have obviously to await the Prosecution

 2     response and decide, but on the assumption, just for argument's sake that

 3     it will be granted, you need to plan ahead.  Missing expert reports you

 4     have dealt with already.  I don't need to bring them up again.

 5                           [Trial Chamber confers]

 6             JUDGE AGIUS:  In fact, Judge Kwon is rightly drawing to my

 7     attention that I should ask you, Mr. McCloskey, if you could possibly

 8     come back with your response to this motion in relation to videolink

 9     testimony the earliest possible.

10             MR. McCLOSKEY:  Yes, Mr. President.  We will try to get it this

11     week.

12             JUDGE AGIUS:  Okay.  Thank you.  All right.

13             Very soon we will be deciding the Popovic motion for

14     certification following our decision granting the Prosecution motion to

15     reopen its case, which you are aware.  We will be handing down a

16     decision, and according to what our decision will be, obviously you will

17     need, Mr. Zivanovic, to together with the Prosecution, possibly come back

18     to us with your proposal.  I don't want to be interpreted as giving

19     beforehand an indication of how we will be deciding the motion for

20     certification but on the assumption again for argument's sake that we

21     will, there is the question that we also hinted at when we handed down

22     the decision granting the Prosecution motion, and we will do our utmost

23     to ensure that a fair trial is secured.

24             Okay.

25             We are informed that in the course of the 65 ter meeting, a

Page 21510

 1     question arose as to what will be the correct procedure to be followed

 2     when expert witnesses are called and examined in chief by the party, by

 3     the Defence team that has produced such witness.  We are told that there

 4     was a bit of an argument between the various Defence teams and the

 5     Prosecution, the Prosecution maintaining that the other Defence teams

 6     should first cross-examine the expert witness before the Prosecution is

 7     asked to cross-examine him or her, while the rest of the Defence teams

 8     took diametrically opposed position on this.

 9             It is already planned that one or more of these witnesses will be

10     testifying very early into the Popovic Defence team, and we want this

11     issue to be determined before we start.  So our decision today, which we

12     took yesterday, is to invite you to come forward with any submissions

13     that you wish to make on this issue now, and that would put us in the

14     position where we can either incorporate it in the guidelines that we

15     will be issuing shortly or decide it separately, if it requires to be so

16     decided.  I do have an indication on who took part in the discussions

17     during the 65 ter meeting.  I don't want necessarily to limit myself to

18     those of you who intervened.  Would anyone of you wish to address the

19     Trial Chamber?  Mr. Bourgon?  Of course, you will have an opportunity to

20     address the Trial Chamber too, Mr. McCloskey, when it's over.  Yes, go

21     ahead.

22             MR. BOURGON:  Thank you, Mr. President.  First, Mr. President, I

23     would like to say that we believe that this issue affects not only expert

24     witnesses but in fact all witnesses who will testify as part of the

25     Defence case.

Page 21511

 1             JUDGE AGIUS:  You are correct, but the way it was put to us is

 2     that during the 65 ter meeting, it was rather limited to the evidence of

 3     expert witnesses.  You are right, it applies across the board to all

 4     witnesses.

 5             MR. BOURGON:  We take the view, Mr. President, as we mentioned

 6     during the Rule 65 ter meeting that cross-examination should begin with

 7     the Prosecution for the following reasons.  Our most important

 8     justification for this is that we take the view that it will best favour

 9     the flow and the thorough presentation of the evidence before the

10     Trial Chamber.  We believe that the Prosecution will necessarily adopt a

11     comprehensive approach to cross-examining any witnesses, bearing in mind

12     that the Prosecution will cross-examine in the light of the evidence that

13     a witness can bring against any of the co-accused in this case.  That

14     being the case, we think that this will significantly shorten any

15     cross-examination by any of the co-accused that may follow thereafter.

16     And this will of course save a lot of court time.  Our main consideration

17     here is that due to the exceptionally high number of co-accused in this

18     case, this would make things much shorter and much more effective.

19     Having the Prosecution go first will reduce the possibility of any

20     overlap.  Once the Prosecution has conducted its cross-examination of any

21     witnesses, then the resulting cross-examination by any of the co-accused

22     should be able to have to limit any overlap and should assist the

23     Trial Chamber in controlling and limiting the resulting

24     cross-examination.

25             Another argument that militates in favour of having the

Page 21512

 1     Prosecution go first is to better protect the rights of the accused and I

 2     say this in light of the numerous, if I can call it this way, theories of

 3     Defence that co-exist amongst the co-accused in this case.  So it is much

 4     better in our view to have the Prosecution go first and then have the

 5     co-accused take the second bite at the apple and terminate the

 6     cross-examination.

 7             For all these reasons, Mr. President, we believe that and we

 8     respectfully request that in your guidelines that will be issued for the

 9     presentation of the evidence during the Defence case, that we simply go,

10     take the following approach, examination-in-chief, cross-examination by

11     the Prosecution, and then cross-examination by the co-accused who wish

12     and who may elect not to conduct any cross-examination once the

13     Prosecution has done its work.  Thank you, Mr. President.

14             JUDGE AGIUS:  I thank you, Mr. Bourgon.  Anyone else wishes to

15     address the Chamber?  Madam Fauveau?

16             MS. FAUVEAU: [Interpretation] Your Honour, I completely agree

17     with what my learned friend just said, what my colleague just said, and I

18     would also like to add that to proceed this way could also make it so

19     that the procedure will be faster and more efficient.  It is quite

20     possible that the Defence after the cross-examination led by the

21     Prosecutor will request a recross-examination because obviously there

22     will be things that will come across only during the cross-examination of

23     the witness by the Prosecutor.  So I believe in fact that this is the

24     procedure that would be the most efficient and this procedure would

25     protect the best the rights of the accused.

Page 21513

 1             JUDGE AGIUS:  Merci, Madam Fauveau.  Any further contributions,

 2     submissions?  Mr. McCloskey?

 3             MR. McCLOSKEY:  Yes, Mr. President.  I do not agree with this

 4     approach.  I think as we look at the expert witnesses, most of the

 5     experts will be experts that are not impacting adversely on the various

 6     accused.  They will come at us with mostly a unified approach using each

 7     other's experts to attack the Prosecution's case which is normal and is

 8     what we expect and given that's the fact, the Prosecution should be able

 9     to see where each Defence is coming from so that I can respond finally

10     after six examinations, seven -- six or seven examinations, I can respond

11     to all of them in one shot as opposed to Mr. Zivanovic brings out one

12     part of an expert that's for his case, I cross-examine, then Ms. Fauveau

13     brings out another part, I'm going to be able to, I would think, recross

14     on that so you're going to see me coming back and forth wanting to

15     respond to each individual Defence that's brought up something new.

16             I don't want to be in a position where I'm anticipating having to

17     cross-examine on all subjects.  That's not my style and it won't be the

18     style of my team.  We will be targeted to what we see the important

19     points are that are brought out in direct examination or perhaps lying

20     quietly in a report but I don't want to just design a cross-examination

21     to include everything that each defendant might bring up.  That would be

22     an unreasonable burden to put on everyone because the cross-examinations

23     would be much longer.  I think the more reasonable way is they bring out

24     what they need to bring out, I'll cross-examine on all of that, and of

25     course, they can have, if there is some issue, then they can individually

Page 21514

 1     come back at the witness.  And then it will hopefully be through at that

 2     point.  But if we take this different approach, I may have to come back

 3     each time someone brings up something else.

 4             Now, if we had a situation where one expert hammered a

 5     co-accused, then we might want to take a little different approach for

 6     that co-accused, but I don't see that happening often.  I think they are

 7     going to be unified effort and it's all going to be coming at the

 8     Prosecution so we should just respond to it one time.  You don't want me

 9     jumping up and having to say, okay, I need to respond to that

10     cross-examination, I need to respond to that one, that one, that one, and

11     I will -- if it's a good cross-examination I will likely have to do that.

12             JUDGE AGIUS:  I thank you, Mr. McCloskey.  Yes, Mr. Bourgon?

13     Mr. Bourgon, while you prepare to reply to Mr. McCloskey, would you also

14     like to address maybe what has already happened in the past when you had

15     one expert witness who was a common expert and he testified here and the

16     same issue arose.

17             MR. BOURGON:  Mr. President, in my experience -- what happened in

18     my experience, Mr. President, is that of course all examination-in-chief

19     if it's a common expert witness then, of course, all examination-in-chief

20     are done before the Prosecution does any cross-examination.  To me that's

21     not even an issue.  The issue is when do you conduct the

22     cross-examination?  If two co-accused have different experts, and my

23     experience has been in other cases that first the Prosecution will go and

24     then the second accused would do the cross-examination.  But I'm also

25     informed that in other cases, the different approach was taken.  So I

Page 21515

 1     don't think that there is a uniform approach before this Tribunal.

 2             I believe, Mr. President, what is important is that we have to

 3     look at the purpose of the cross-examination.  It is either to attack the

 4     credibility of the witness or to attack the evidence that he can provide

 5     for the person who presented that witness.  Now, if a co-accused does any

 6     cross-examination, we do it for the exactly same purpose of the

 7     Prosecution but, as a get-go, we are not the opposing party in this case

 8     and the Prosecution should go first and if there are any resulting

 9     issues, then the co-accused go at it.  We think that this would save a

10     lot of court time and make it much easier for the Trial Chamber to

11     control the cross-examination time.  Thank you, Mr. President.

12             JUDGE AGIUS:  I thank you so much, Mr. Bourgon.  As I said --

13     yes, Mr. Ostojic?

14             MR. OSTOJIC:  Thank you, Mr. President.  I think if the Court

15     even at the beginning of the trial reconfirmed to us that each of the

16     accused will be tried as if it was their separate case and the Rules

17     certainly afford for that, and that's Rule 82, and if you look and follow

18     the logic in my opinion of Rule 82 and that is an accused if he presents

19     evidence certainly we wouldn't have an opportunity in other proceedings

20     to cross-examine witnesses of other accused unless the case was joined.

21     This case was joined.  Prosecution has the ability and the wherewithal to

22     cross-examine that witness.  I think the approach that the Defence is

23     suggesting is reasonable, I think it's it in accordance with the Rules.

24     I don't see in the Rules anywhere that it suggests or supports the

25     position of the Prosecution that we should, as the accused, be allowed or

Page 21516

 1     be even requested to cross-examine other accused's experts or witnesses.

 2             I'm being tried on this case separately from my co-accused.  They

 3     can take a position adverse to me.  It's what the Prosecution is charging

 4     me with that I'm most interested in, not what my fellow accused may have

 5     as their theory or charges that they may allege.  I'm not answering those

 6     charges but putting us in a position to cross-examine first, certainly

 7     forces us to answer those charges as well.  I think it's important to

 8     know what the Prosecution is going to do, his cross-examination should

 9     come first and it's absolutely in my opinion logical in accordance with

10     the Rules and the Court should allow the Defence to follow the

11     cross-examination of the Prosecution.  Thank you, Mr. President.

12             JUDGE AGIUS:  Thank you, Mr. Ostojic.  Do you wish to comment

13     further, Mr. McCloskey?

14             MR. McCLOSKEY:  Just lastly it's my understanding the other --

15     the Prlic and Milutinovic trials do it the approach that I'm suggesting

16     though I will try to confirm that.  That will not be hard to confirm.

17     But I don't -- it's not -- in reading the way the Court has always

18     allowed the parties, you have always allowed us to deal with witnesses

19     and bring up either cross or redirect on issues that have not been

20     brought up before and so I would fully expect to you do that.  If we do

21     it the way they are planning that means whenever a new issue is brought

22     up by a new cross-examination I will be allowed to respond and if I bring

23     up something else, they will be allowed to respond.  In that way, I'm

24     jumping up and down all the time and that's just not going to work out

25     practically.

Page 21517

 1             JUDGE AGIUS:  I thank you, Mr. McCloskey.  And Mr. Ostojic.

 2     Mr. Bourgon?

 3             MR. BOURGON:  Just to --

 4             JUDGE AGIUS:  Let's conclude it here.

 5             MR. BOURGON:  The example brought up by my colleague is simply

 6     something that in this case we have had this experience whereas there

 7     were some cross-examinations conducted, there was a cross-examination

 8     conducted by one of my colleagues which brought up some new areas, I

 9     tried to intervene after and I was not given the leave by the

10     Trial Chamber because the issue had been dealt with before.  So that

11     example that my colleague is bringing forward I don't think is relevant.

12     What matters is the evidence-in-chief is presented, the Prosecution does

13     what it has to do to undermine either the credibility or the contents of

14     the report, and if there is any resulting issues, then the co-accused do

15     it and then we'll save significant court time.  Thank you, Mr. President.

16             JUDGE AGIUS:  Thank you.  As I said earlier on, we'll come back

17     to you with our decision which will be incorporated in the guidelines,

18     decision or ruling that we will -- we intend to hand down or separately.

19             Another topic that needs to be resolved and on which we do not

20     intend to sit much further.  On the 9th of this month, the Prosecution

21     filed a confidential motion requesting us to order the Popovic Defence

22     team to provide sufficiently detailed summaries of 12 of his proposed

23     witnesses with a view to allowing the Prosecution to be in a position to

24     adequately prepare for cross-examination.

25             The Prosecution basically submits that these 12 witness summaries

Page 21518

 1     manifestly fail to comply with the requirements of Rule 65 ter and

 2     that -- the relevant jurisprudence on the matter and do not provide the

 3     Prosecution with adequate notice of the facts to which the witnesses will

 4     testify.  Now, a few days later, on the 15th of May, Popovic and

 5     Pandurevic filed their responses.  And on the 19th May, the Beara Defence

 6     team filed a motion joining the position taken by the Pandurevic Defence

 7     team.

 8             Now, we asked Mr. Cubbon to raise this matter during the 65 ter

 9     meeting which he did, and the -- you were invited to sit down, talk,

10     negotiate if necessary, and try to find a solution without the need for

11     Chambers to intervene in this matter.  You were also asked that you will

12     be expected to report back to the Trial Chamber today of the outcome of

13     any discussions that may have taken place on this.  So what we want to

14     know is whether there is -- whether there have been discussions and

15     whether there is an outcome that is worth hearing about.

16             Yes, Mr. McCloskey.

17             MR. McCLOSKEY:  Mr. Zivanovic and I have had a chance to speak

18     briefly on this topic.  We both have fundamentally different views and

19     his is held strongly, and he's made it very clear.  I think the

20     fundamental difference is that they have provided us some information of

21     what the person is going to talk about, but nothing about the details.

22     In many cases nothing about the details.  And we need the details.  And

23     for an example, could we go into private session for a minute?

24             JUDGE AGIUS:  Yes, sure.  Let's go into private session for a

25     short while.

Page 21519

 1                           [Private session]

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Page 21520

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 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10                           [Open session]

11             JUDGE AGIUS:  We are back in open session.  Yes, Mr. Zivanovic,

12     do you wish to add anything?

13             MR. ZIVANOVIC:  Yes.  I believe that we provided enough of

14     information to the Prosecution through our Rule 65 ter list.

15             JUDGE AGIUS:  Stop there.  Basically the conclusion is that there

16     is no agreement.

17             MR. ZIVANOVIC:  Yes.

18             JUDGE AGIUS:  Which means that we will be deciding the matter and

19     it will be decided before we start with your Defence case.

20             Yes, Mr. Haynes?

21             JUDGE KWON:  Just a second, can we go back to private session?

22             JUDGE AGIUS:  Yes, let's go back into private session for a short

23     while.

24                           [Private session]

25    (redacted)

Page 21521











11 Page 21521 redacted. Private session.















Page 21522

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 6   (redacted)

 7   (redacted)

 8   (redacted)

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10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16                           [Open session]

17             JUDGE AGIUS:  Mr. Haynes?

18             MR. HAYNES:  I don't want to add too much.  I did actually take

19     it upon myself to try and broker some compromise here, I sent

20     Mr. McCloskey an e-mail at 5.00 on Tuesday after our meeting but it

21     didn't merit the courtesy of a response.

22             JUDGE AGIUS:  It was bad timing.

23             MR. HAYNES:  I looked with great interest at the Prosecution's

24     filing the other day in which it was able, notwithstanding the inadequacy

25     of the summaries to give pretty precise estimates for how long it's going

Page 21523

 1     to cross-examine all these witnesses and I really rather thought that

 2     gave the lie to the genuineness of this complaint.

 3             I would hope we can sort this out.  I've spoken to Mr. McCloskey.

 4     As far as I'm aware he takes no issue with any of the summaries on my

 5     65 ter list so I do not anticipate being the recipient of a motion of

 6     this sort, doubtless 14 days before I'm about to start my case.  But this

 7     is a waste of time in my view.  Where does it go?  Let's suppose you do

 8     decide Mr. Zivanovic has got to improve his witness summaries a little

 9     bit and he does and that's still not to the Prosecution's liking.  What

10     do they then do?  File another motion?  Ultimately there is no sanction.

11             We have got through this trial by dealing with questions of

12     disclosure on an informal basis and if Mr. McCloskey has got things he

13     needs to know from Mr. Zivanovic he can ask him and Mr. Zivanovic I'm

14     sure will tell him and we can get on with hearing the evidence.  My

15     position, you know, on the merits of the motion is that you should not

16     grant the Prosecution the relief it sought.  They know every witness in

17     this case very well.  They've interviewed most of them.  Very, very many

18     of them have given evidence and there is nothing they don't know about

19     what Mr. Krajisnik is about to say and they are thoroughly ready to

20     cross-examine him and all the other witnesses in Mr. Zivanovic's case.

21             MR. JOSSE:  Sorry to interrupt, Your Honour, I'm afraid our

22     client is really feeling very, very unwell.  He has been for much of the

23     morning.  And we would ask for a short break.

24             JUDGE AGIUS:  Yes.  Of course.  Had you told us before we would

25     have --

Page 21524

 1             MR. JOSSE:  Well, we waited for him to indicate when he was

 2     really so unwell as to be able to continue.  He's now done that.

 3             JUDGE AGIUS:  In addition, if General Gvero prefers to go back to

 4     the Detention Unit, I think I can intervene to ensure that provided of

 5     course that --

 6             MR. JOSSE:  Not at the moment, Your Honour.  His general

 7     well-being is something that we were going to address on his behalf a

 8     little later in these proceedings.

 9             JUDGE AGIUS:  All right.  Okay.

10             MR. JOSSE:  But perhaps we could have a short break now --

11             JUDGE AGIUS:  Of how long, Mr. Josse?

12             MR. JOSSE:  I would suggest 15 minutes, please.

13             JUDGE AGIUS:  All right.  We will have a short break of 15

14     minutes and if you need more than that, Mr. Josse, will you come back to

15     us, please?

16             MR. JOSSE:  Of course.

17             JUDGE AGIUS:  Thank you.

18                           --- Break taken at 11.38 a.m.

19                           --- On resuming at 12.16 p.m.

20             JUDGE AGIUS:  Yes, General Gvero, good afternoon to you.

21             THE ACCUSED GVERO: [Interpretation] I believe that I shall be

22     able to follow the proceedings to the end.

23             JUDGE AGIUS:  Okay.  We have every interest to make sure that you

24     feel comfortable in the course of the proceedings.  If at any time you

25     need a break or you need to go back to the Detention Unit, we are here to

Page 21525

 1     help you.

 2             THE ACCUSED GVERO: [Interpretation] Thank you, thank you very

 3     much for your interest.

 4             JUDGE AGIUS:  Thank you.  Coming back to what we were discussing

 5     before the short break, our position is as follows, Mr. Zivanovic and

 6     Mr. McCloskey and Mr. Haynes and Mr. Beara for whatever it concerns you,

 7     I mean, it's -- our preference would be not to decide this issue and this

 8     is why we told you to try and sit down around a table and discuss.  It's

 9     unfortunate that you have not come to an agreement.  However, there may

10     be a reason for that, and while we were sitting outside on the terrace

11     waiting for the sitting to resume, we talked about it and we believe that

12     if we give you an important guideline and invite you to have further

13     talks, further discussions amongst yourselves, that could possibly be

14     conducive to an agreement.  And the guideline is the following,

15     Mr. Zivanovic.  We do not believe that the purpose of the Rule that

16     applies is to obtain from you an indication of the subject matter that

17     the witness will be testifying upon.  That would not be enough.  What is

18     required from the Rule is more than that.  What is required from the Rule

19     is an indication of areas and facts that will be dealt with by the

20     witness and possibly the manner in which they will be dealt with, if you

21     are aware of that.

22             So -- and you move from there.  You move from there.  It's true

23     that the whole issue is plagued with problems and that is particularly

24     why we would prefer you to come to an agreement rather than have us

25     decide the issue.  So we are inviting you to sit around a table again and

Page 21526

 1     discuss what applies to one witness may not apply to another and if you

 2     engage into a proactive discussion and exchange of ideas amongst

 3     yourselves, you would probably get a better result than if you put us in

 4     a position where we have to decide the issue ourselves.

 5             So we will be deciding the issue later on, if you don't come to

 6     an agreement.  That is the position.

 7             Now, next item is -- there is very little I have to say about

 8     this, Rule 92 bis, 92 ter motions, the Beara problem we have dealt with

 9     already, but there is still the Popovic motion that requires a response

10     from you, and since the Popovic Defence team will be first to go, we

11     would appreciate, Mr. McCloskey, if you could come back to us with your

12     response the earliest possible.  It will allow Mr. Zivanovic to plan

13     better and us to take stock of the situation and what to expect.

14             MR. McCLOSKEY:  Yes, no problem.  The Popovic case is our biggest

15     priority.

16             JUDGE AGIUS:  Thank you.  There is also a motion from the

17     Beara Defence team, while we are at it, the Beara Defence team, I

18     referred to it earlier on this morning, has filed a motion not to reduce

19     the amount of witnesses but to add further witnesses to the 65 ter list,

20     namely four additional witnesses.  Unless you are in a position to give

21     us your response to this today, we also enjoin you to come forward with

22     your response the earliest possible, Mr. McCloskey.

23             MR. McCLOSKEY:  Given that it's so early at this point, the

24     Prosecution does not object.

25             JUDGE AGIUS:  Okay.  So the motion is granted, with the

Page 21527

 1     understanding, Mr. Ostojic, that these four witnesses will be included in

 2     the total exercise, the whole exercise, in a holistic manner, expecting

 3     from you a serious -- which I don't doubt -- a serious attempt to try and

 4     reduce the Defence, the Beara Defence case significantly.

 5             We've had the -- over the past two months, an exchange of

 6     motions, responses, replies, counter-motions, dealing with the correct

 7     meaning of the Serbo-Croat word "rukovodjenje," whether it means control

 8     as against managing.  I think you are all aware of the exchange that has

 9     taken place.  We are taking a position on this today, and we are

10     informing you accordingly.  We have a CLSS translation of Exhibit 407,

11     Prosecution Exhibit 407 and Prosecution Exhibit 3032.  And we are

12     admitting the relative document as is.  This will leave, of course,

13     unprejudiced the issue of the correct translation of the Serbo-Croat word

14     which I will try and repeat, "rukovodjenje."  We will leave it

15     unprejudiced, in other words, this will remain a matter for the

16     forthcoming evidence.  We are sure we are going to receive evidence on

17     one version or one interpretation and other evidence on another

18     interpretation.  We'll hear what you have in store for us and then we

19     will give due weight to what information we receive and decide later.

20             In other words, for the time being, we are putting you on notice

21     that we will not be deciding any of the motions and counter-motions that

22     we have had on the subject matter.  We believe that this is a matter that

23     is best left to the evidence that we will be hearing in due course.

24             Yes, Mr. McCloskey?

25             MR. McCLOSKEY:  In the event that it may simplify that is that

Page 21528

 1     the Prosecution's position is not that control is a term of command and

 2     so just to make that clear, and so the difference between control and

 3     management may be an interesting debate but we are -- have never

 4     suggested that control is a function, a direct function, of command.

 5     Just so that's clear.

 6             JUDGE AGIUS:  Thank you for that.  I'm sure that your

 7     counterparts, your colleagues, on the Defence side will take that into

 8     consideration, even though it has already been stated in some of your

 9     filings.

10             Now, during the 65 ter meeting, there was an issue that was

11     raised by you, by the parties, rather than by Mr. Cubbon, and that is

12     disclosure obligations under Rule 67.  We are aware of the debate that

13     took place and the respective positions taken by Prosecution and some of

14     the Defence teams, particularly one Defence team, that's the

15     Miletic Defence team.

16             Yesterday, the Prosecution filed an urgent Prosecution motion for

17     disclosure under Rule 67(A)(ii), basically Prosecution is requesting the

18     Trial Chamber to order Defence counsel to provide full disclosure

19     pursuant to Rule 67, the same subrule, no later than the 26th of May,

20     2008.  There are two options.  We either hear submissions that you may

21     have today from the Defence teams in a brief manner, or else we will

22     reduce the time limit within which you have available under the Rules for

23     filing a written reply.  I don't know what you prefer.  Either of the two

24     is fine with us.  But this matter has to be decided because we are

25     talking of a deadline that is pretty much near and we are running short

Page 21529

 1     of time.

 2             Madam Fauveau, I'm calling upon you, if you wish to address the

 3     Trial Chamber.

 4             MS. FAUVEAU: [Interpretation] Yes, Mr. President.  I can do it

 5     now, if this is convenient for the Chamber, of course.

 6             JUDGE AGIUS:  Yes, go ahead.

 7             MS. FAUVEAU: [Interpretation] Since the Prosecution motion

 8     concerns paragraph 2, only to obtain documents applying Articles --

 9     Rule 67(A)(ii), my objection will be also limited.  The only objection I

10     have for the moment is that it is about a matter of principle because as

11     far as I'm concerned, all the statements of witnesses I have communicated

12     to the Prosecution, according to this rule, Defence has the obligation to

13     give one week before the presentation of its -- those declarations for

14     the witnesses which are quoted and this is about the date, what is the

15     date for the Defence?  We consider that for General Miletic, we will

16     start our own presentation, that is for General Miletic, we do not

17     consider that the Defence of General Miletic will have the presentation

18     of its case on 2 June but it will be the other one which begins.  As for

19     the prosecutors, this is only a matter of principle because we

20     transmitted all the statements, it is only an objection concerning the

21     date.  Now, maybe I am jumping a bit the gun but if the Prosecution

22     intends to put a motion by Rule 67(A)(ii), 67(A)(i) concerning copies of

23     books, documents, which the Defence has or which can control, our

24     position will be different and we will consider that this part of the

25     Rule does not apply in the present case because it's unfavourable to the

Page 21530

 1     accused.  The Article was modified during the case, during the trial, and

 2     since it is a Rule which is unfavourable to our client, we will oppose.

 3     If such a motion is put.  I do not wish to develop and take more time now

 4     on this question because the motion of the Prosecution -- there is no

 5     motion of the Prosecution under 67(A)(i).

 6             JUDGE AGIUS:  It would help us to know how you consider it

 7     adverse to the accused when it's limited to pieces of evidence that is

 8     intended to be brought into the record, because you see that copies of

 9     statements, if any, of all witnesses whom the Defence intends to call to

10     testify at trial, and copies of all written statements, et cetera, which

11     the Defence intends to present at trial.  Copies of, et cetera, how does

12     it become prejudicial to --

13             MS. FAUVEAU: [Interpretation] Mr. President, I don't consider

14     that part of the Rule is unfavourable.  It's the reason why I said that

15     as far as paragraph 2, my objection is only about the date, but if the

16     Prosecution intends to present another motion, in that case, yes.

17             JUDGE AGIUS:  All right.  Thank you.  Yes, Mr. McCloskey?

18             MR. McCLOSKEY:  Your Honour, as we can all tell from this motion,

19     this motion does not require the Prosecution -- or this Rule does not

20     require, nor anticipate, the Prosecution has to file a motion.  It says

21     the Defence shall.  The only reason we filed the motion for (ii) in this

22     case is because we got fair indication from them that they weren't going

23     to provide us with statements and in fact there were many statements we

24     didn't have.  I had assumed they would be following (i) and that hadn't

25     become a problem yet, but I will amend my motion verbally now to include

Page 21531

 1     (i) for them to provide documents if that's what it's going to take, I

 2     see she has made her position clear on that.  I didn't think I would have

 3     to file a motion on that but I obviously do.  It's not of course true for

 4     all accused but it is -- it is something that should be worked out at

 5     this point.  I think it will solve problems later.

 6             JUDGE AGIUS:  I thank you, Mr. McCloskey.  Madam Fauveau?  And I

 7     also -- do you wish to address the Chamber, Mr. Haynes?

 8             MR. HAYNES:  Yes, I think it might be convenient if I do it now.

 9     I know what my obligations are under these Rules.  And I have every

10     intention of complying with them.  And I don't see what basis has been

11     raised by the Prosecution for the making of an order against Defence

12     counsel that they shall apply with their lawful obligation under the

13     Rules.  This motion has absolutely no basis whatsoever.  The date for

14     compliance has not yet passed.  It would be quite another thing if the

15     Prosecution were coming here and saying, Mr. Haynes has failed to

16     disclose material which we know he has.  But there is no basis for the

17     Prosecution to apply for and for you to make an order that the Rule shall

18     be complied with.  There is no basis for suggesting I'm going to break

19     the Rules.  This is completely ahead of the gun.

20             JUDGE AGIUS:  Thank you, Mr. Haynes.  Madam Fauveau?  And then

21     you, Mr. Bourgon.

22             MS. FAUVEAU: [Interpretation] Mr. President, because of the

23     answer of the Prosecution, I would like briefly to say why I feel that

24     this modification of the Rule concerning the little A is disfavourable to

25     the Defence.  First of all, for me, it's not very clear, I don't see what

Page 21532

 1     this Rule actually refers.  If it's documents which we will present

 2     during examinations, direct examinations, those of 65 ter, of course we

 3     have an obligation to disclose to the Prosecution, that's what we have

 4     already done.  On the other hand, if it's about the documents which we

 5     intend to use during other examinations or other witnesses of the

 6     Defence, this Rule then clearly is disfavourable to our client because

 7     the Prosecution has no such obligation, and in this procedure will be

 8     using this during the examination.  So they will have presented their own

 9     argument about documents which were not communicated to us and if this

10     Rule is applied to the Defence as it is written here, and if it has to

11     subsume all the documents for the Defence at any stage of the

12     proceedings, then one may wonder whether the Prosecution did disclose all

13     the documents which he intends to use in these proceedings, in particular

14     during the counter-examination, cross-examinations of our witnesses.

15             JUDGE AGIUS:  Thank you.  Mr. Bourgon?

16             MR. BOURGON:  Very quickly, Mr. President, to join the opposition

17     to the motion by my colleague Mr. Haynes but also to add that the motion

18     in our view is premature.  However, the timing might be right and the

19     guidelines that the Trial Chamber will issue to confirm that the

20     Prosecution should give us ahead of time any documents they intend to use

21     in cross-examination of our witnesses.  Thank you, Mr. President.

22             JUDGE AGIUS:  Thank you.  Yes, Mr. Meek?

23             MR. MEEK:  Mr. President, Your Honours, the Beara Defence team

24     agrees and we join.

25             JUDGE AGIUS:  Thank you, Mr. Meek.

Page 21533

 1             So we will decide that in due course.  Yes, Mr. Haynes --

 2     Mr. McCloskey?

 3             MR. McCLOSKEY:  Yes, Mr. President.  It's my understanding that

 4     some Defence counsel feel that this Rule doesn't even apply because it

 5     was enacted after the Prosecution started.  We are getting very close to

 6     the beginning of the Popovic case, we don't have the statements from him,

 7     so this Rule is ripe in the case of the first accused, and this week

 8     time-limit that is suggested is a bare minimum and that I would of course

 9     ask you to consider that we get material prior to that.

10             JUDGE AGIUS:  Yes, Mr. Zivanovic?

11             MR. ZIVANOVIC:  We enclosed all our statements to our motions, as

12     far as I know.

13             JUDGE AGIUS:  Are you making a statement to the effect that both

14     under the first paragraph and -- in other words -- and the second

15     paragraph, there is no further documents that need to be disclosed?  Is

16     that your position?

17             MR. ZIVANOVIC:  It is my -- just a moment.

18                           [Defence counsel confer]

19             MR. ZIVANOVIC:  We have just a CD with the [indiscernible]

20     attached to the report of Mr. Miladin Kovacevic.

21             JUDGE AGIUS:  Have you had a request by the Prosecution to

22     inspect and copy any books, documents, photos that --

23             MR. ZIVANOVIC:  I haven't got any specific request for any

24     documents, book or anything else.

25             JUDGE AGIUS:  Yes, Mr. McCloskey?

Page 21534

 1             MR. McCLOSKEY:  It's not my practice to bring up e-mails but I

 2     do -- I did make a Rule 67 request to everyone and I do have some 92 bis

 3     statements from Mr. Zivanovic, and the Kovacevic statement but as for

 4     some of these witnesses, many of them I have no statement and if there is

 5     no statement then I would hope to be told that.

 6             JUDGE AGIUS:  But that's -- you have a responsibility under the

 7     Rules, Mr. Zivanovic, we are not here to preach what your

 8     responsibilities or duties are.  Make sure that they are all observed

 9     because there will be consequences otherwise, as there were in other

10     cases.

11             JUDGE KWON:  Mr. McCloskey, the request you made is based on

12     Rule 67(A)(ii), not 67(A)(i) which provides for the inspection by you.

13             MR. McCLOSKEY:  I will have to go look at my e-mail, if it was

14     done properly I would have asked for both.  Actually it's right here so

15     I'll be able to --

16                           [Prosecution counsel confer]

17             MR. McCLOSKEY:  Yeah, I asked for 67(A) which would include both.

18             JUDGE KWON:  Inspection by the Prosecution of the documents which

19     is in custody of the Defence for the use at the trial?

20             MR. McCLOSKEY:  Yes.  This is a request pursuant to Rule 67(A)

21     that you provide to the Prosecution copies of all statements of all

22     witnesses whom you intend to give evidence at trial including live

23     witnesses, 92 bis, quater.  We also request that we be allowed to inspect

24     and copy any books, documents, photographs, intangible objects -- sorry,

25     I'm sure I'm going too fast -- in your custody or control which are

Page 21535

 1     intended for use as evidence at trial.  Alternatively, if it's more

 2     convenient, you can provide us with copies of this material.

 3             And it goes on.  And that was 10 April.

 4             JUDGE AGIUS:  Okay.  Independently of the principle which may or

 5     may not be involved that Madam Fauveau referred to what I suggest is

 6     this, Mr. Zivanovic, if you could follow what I'm saying, I'm saying that

 7     irrespective of the principle and the rest of the debate on whether there

 8     is a principle and to what extent and how it should be applied and

 9     whether the Prosecution motion is a timely one or not, I mean, bypassing

10     all these issues, what I suggest is that now that the matter has been

11     raised, why don't you sit down again with Mr. McCloskey and should there

12     be other material that may or should have been disclosed and hasn't been

13     disclosed or material that Mr. McCloskey wants to have access to pursuant

14     to either the first or the second paragraph, that you try to thrash this

15     in an orderly manner.  I see that in this issue there is good faith on

16     both sides, there is not a question of someone trying to evade one's

17     responsibility.  This is not the case.  So what I suggest is that you sit

18     down together and try to thrash this out.  In the meantime, the rest of

19     the issues can be postponed and will be decided if there is an ad hoc

20     request for the matter to be decided.  Yes, Madam Fauveau?

21             MS. FAUVEAU: [Interpretation] I don't want to be misunderstood by

22     the Chamber, by the Prosecution.  As far as General Miletic, we don't

23     have other documents than those which any way are in the e-court --

24     electronic disclosure system but I think this Rule should not apply if

25     maybe somebody has another document but there is another Rule, Article --

Page 21536

 1     Rule 66(B) which gives the same obligation to disclose to the Prosecution

 2     but only on the request of the Defence.  So I'm sure that, at the moment

 3     this case was prepared, several teams of Defence elected not to make this

 4     request because there was no obligation.  Now we have this obligation and

 5     this puts us in an unfavourable position.

 6             JUDGE AGIUS:  All right.  But in the meantime I think the matter

 7     can be dealt with in the way suggested because what's urgent about it is

 8     the Popovic Defence case.  If there is a need to go deeper into the

 9     matter and decide it from the legal aspect or from some other aspect of

10     course we will do that later on but in the meantime we need to be

11     practical and pragmatic in our approach and what I have suggested I think

12     should be stomached well by the Prosecution and Mr. Zivanovic.

13             Mr. Bourgon.

14             MR. BOURGON:  Thank you, Mr. President.  Just like to say that

15     the -- it is our position that the contents of Rule 67(A)(i) has been

16     rendered moot by Rule 65 ter.  Any documents that we had that we intend

17     to use were put on our list and were given to the Prosecution.  If we

18     find something else between now and the witness appearing, of course we

19     will give it to the Prosecution.  We are fulfilling our obligations.

20     This 67(A)(i) has been rendered moot.  As for the other one, we are in

21     contact with the Prosecution and we are disclosing our statements in the

22     same manner.  Thank you, Mr. President.

23             JUDGE AGIUS:  That may well be the case, Mr. Bourgon, but let's

24     see whether these will be pleasures yet to come in which case we will not

25     shy away from deciding the issue.

Page 21537

 1             The only other things we have on our agenda, is the state of

 2     health of the accused and basically nothing else, unless you wish to

 3     raise any other matter arising from the 65 ter meeting or independently

 4     of and beyond or beyond the 65 ter meeting.  Mr. Josse?

 5             MR. JOSSE:  Well, the issue that we wish to raise and which we

 6     alluded to earlier really does relate to our client's well-being.

 7             JUDGE AGIUS:  Do you wish to deal with this in open session or in

 8     private session?

 9             MR. JOSSE:  In open session, please, Your Honour.

10             JUDGE AGIUS:  All right.  Go ahead.

11             MR. JOSSE:  And the reason we want to put this on record is that

12     it may have a consequential impact on this trial and we felt it

13     appropriate to mention it at this Pre-Defence Conference.

14             General Gvero was very grateful to the Trial Chamber in granting

15     his application for provisional release.  It goes without saying that I'm

16     instructed to emphasise that he was bitterly disappointed by the ultimate

17     decision of the Appeals Chamber reversing the period of release that had

18     previously been granted to him.  His lawyers, Your Honours, of course

19     appreciate that there is nothing that can be done about that by this

20     Trial Chamber.  And we have explained that to our client.  He fervently

21     believes that the standards, that is the law, in effect, in relation to

22     this particular issue, has changed and putting it colloquially, it's his

23     view that the goal posts have changed during the course of this trial and

24     that has affected him in a number of ways and I repeat, he is bitterly

25     disappointed about the end result.  He feels in effect that he's been

Page 21538

 1     caught in a trap because having voluntarily surrendered, he initially

 2     faced an indictment with simply two other men, and he anticipated a

 3     relatively short trial.  He was then joined to the five other men who now

 4     sit with him in the dock of this Court.  That of course had a

 5     consequential setback in terms of the time this trial was going to take.

 6     He was of the view that that setback was greatly compensated by the fact

 7     that hitherto, he had regular periods of provisional release which was

 8     important to him for a number of obvious reasons, not least for his

 9     general well-being.

10             He has spent the last three months, like his six co-accused, I'm

11     bound to say in passing, in custody.  He is in extremely low spirits, not

12     to say upset.  Commenting on that, it's an obvious comment, of course he

13     had the anticipation that he thought he was going to be released although

14     he knew that the appeal was pending.  He hoped the appeal decision would

15     go his way, it didn't, and it has literally put him into a state of some

16     despair, frankly.  For the most part Mr. Krgovic has been dealing with

17     that, being the B/C/S speaker in our team.

18             General Gvero, prior to today's episode, had asked me to say that

19     he is extremely concerned that he will be able to follow this trial on a

20     daily basis.  He certainly gave the appearance today of being unwell and

21     in the end the trial was for a short period of time disrupted.

22             The prospect of this trial lasting well into the future, as now

23     appears the case based on the various 65 ter submissions that the

24     Trial Chamber has received, is one that clearly concerns him and his

25     lawyers greatly.  He is, to state the obvious, 70 years of age.  He's the

Page 21539

 1     oldest accused presently on trial at this Tribunal.  As I am aware, the

 2     Trial Chamber knows that he suffers from various different ailments and

 3     illnesses and he takes a considerable amount of medication to try and

 4     ease those.  Where this leads, Your Honour, apart from the fact that he's

 5     asked me to make this clear to the Trial Chamber and we are grateful that

 6     the Trial Chamber, in effect, wanted to hear about the well-being of each

 7     of the accused and in that guise I'm making this submission as well, but

 8     where it leads is, as best it can, we can only ask the Trial Chamber to

 9     take this into account in it's scheduling considerations in the coming

10     weeks and months.  He will do his best, that is our client, to follow

11     this trial, to be here on a daily basis but he is concerned and he is in

12     a very low state of well-being at the moment because of the reasons that

13     I've alluded to and this Trial Chamber are only too well aware of.

14             JUDGE AGIUS:  Thank you, Mr. Josse.  Does -- do you wish to

15     respond to that?

16             MR. McCLOSKEY:  We have no objection to moving his case up front

17     and making -- there are arrangements that can be made for people that are

18     not well, that are in the jail, as we know from other cases but we have

19     no objection to moving it up front, if he wants to get it going, we'll go

20     with him on that.

21             JUDGE AGIUS:  He will still have to await the outcome of the

22     other trial -- the whole trial anyway.

23             MR. JOSSE:  I don't think that would be a remedy at all.

24             JUDGE AGIUS:  All right.

25                           [Trial Chamber confers]

Page 21540

 1             JUDGE AGIUS:  Mr. Josse, your words were words of wisdom, and as

 2     I made it clear already, we will certainly take into account -- take them

 3     into account.  We of course agree with you completely that the present

 4     situation as it arises is what it is.  However, that's what the

 5     circumstances are now.  They can change.  And if they change, of course,

 6     we will take that change into consideration and take whatever decisions

 7     may become necessary, but for the time being, you appreciate that the

 8     situation that you are faced with is the situation that we have.  But we

 9     will, of course, take into account the concerns that your client has and

10     that you have so capably aired.

11             MR. JOSSE:  We, that is his lawyers, really do understand that.

12     I'm sure that General Gvero does as well, Your Honour.  He realises that

13     the situation, as Your Honour rightly puts it, is the situation that we

14     face and there is nothing very much that can be done about it but I'm

15     sure your words will be of some comfort and I hope support to him in the

16     time to come.

17             JUDGE AGIUS:  I thank you, Mr. Josse.

18             Does anyone else wish to address the Chamber on health issues?

19             All right.  Do you wish to address the Chamber on anything else,

20     Madam Fauveau?

21             MS. FAUVEAU: [Interpretation] Yes, Mr. President.  It's about the

22     scheduling.  We have been informed that the recess this summer will be

23     two weeks, and discussing first about the conference 65 ter, I did not

24     ask for an extra week.  I certainly said that we have somebody -- we have

25     several teams for the Defence who will be preparing their case, and some

Page 21541

 1     of us mean we will have no holidays at all.  After this conference,

 2     discussing with other colleagues, I think even with the Prosecutor, I'm

 3     not saying that he was in agreement with me, I feel that everybody thinks

 4     that two weeks is much too short and that indeed having only two weeks,

 5     this might cause more problems than advantages because I think that

 6     indeed it's very important to be well prepared and it is also necessary

 7     to be in a position at least to have a little pause because it's true

 8     that we have three months now to prepare the 65 ter lists, but I have to

 9     own up that as far as I'm concerned, me and my team, we have had

10     practically no vacation during that period, in particular for the team

11     who was working in the field practically all the time.  Therefore what I

12     would like to request is to take into consideration whether it wouldn't

13     be possible to have three weeks this summer or another solution, I'm not

14     quite sure how this could be done, how will this trial continue, are we

15     going to continue on the same basis during the evidence, presentation of

16     evidence by the Prosecution, or every four weeks will we have one week

17     for a pause or?

18             I will be extremely grateful if you could give us some

19     indication.  Other solutions, as far as I'm concerned, and some of my

20     colleagues think is maybe too complicated.  Really, it has to be only two

21     weeks in August which I understand because of other considerations which

22     you have to take into account, would it be possible to finish a week

23     before on a Thursday and to start the trial on a Tuesday?  Because this

24     would then allow us to have a little more time.

25             JUDGE AGIUS:  Yes, anyone else?  Thank you, Madam Fauveau.

Page 21542

 1             Yes, Mr. McCloskey?

 2             MR. McCLOSKEY:  Yes, Mr. President.  I had assumed we would have

 3     had three weeks, that we were going to get a week at the other end of

 4     August, and in looking at the e-mails I see that I am wrong, so I would

 5     join Ms. Fauveau's request for a -- the length, the normal length, of the

 6     summer break.  And she made brief reference to the fact that in the

 7     Prosecution's case, the Court took regular breaks for us to be able to

 8     organise our case and adjust and I just want to emphasise how critically

 9     important those breaks were for the Prosecution to be able to do just

10     that, to help organise the number of witnesses that were coming, and to

11     have a time where -- both an end time where they would be finished and a

12     beginning time where they would start again.  That was absolutely

13     essential for us with the number of witnesses we had to put on to make

14     this as smooth-running as we could.  It also, as you know, was very

15     helpful for everyone to have some break and I think in the long run, this

16     has been a much more smooth-running trial than it would have been without

17     that break which was initiated as you know by the Court originally and

18     fully agreed to and worked out very well, I think, on all accounts, and I

19     think this is one issue that everyone in the room agrees with.

20             JUDGE AGIUS:  Yes.  Thank you, Mr. McCloskey.  Anyone else?  I

21     suppose your silence means you agree with Madam Fauveau.  You don't need

22     to stand up.  I mean, I take it that you all agree.

23             The position is as follows.  First of all, you may have been

24     informed by Mr. Cubbon that we think there should be two days in July

25     when we will not sit, namely the 17th and 18th of July.  We have revised

Page 21543

 1     that.  We will be sitting on those two days, the 17th and the 18th of

 2     July, but we will not be sitting on the 14th and the 15th of July.  So I

 3     would like you to make a note of that.

 4             Our problem is the following, and before I try to explain it, let

 5     me assure you that we have not made our minds on this, except insofar as

 6     the -- we have a scenario that we haven't created ourselves, but a

 7     scenario that has -- presents itself as a result of the 65 ter filings,

 8     which basically means that for examination-in-chief alone, we are talking

 9     of 420 hours.  Add to that the time, giving a conservative estimate of

10     50/50, which would be required for cross-examination, we are in the

11     region of 1.000 hours because in addition to the Prosecution

12     cross-examination, we have to allow also for cross-examination amongst

13     the various Defence teams, plus time required for procedural issues and

14     there will be several and a little bit of time which we usually take

15     ourselves.

16             That is alarming.  And I hope you will agree with me that that

17     scenario creates problems for us, creates multiple problems.  We want to

18     ensure that each one of you will have full opportunities to present your

19     respective case, Defence case, adequately, according to due process laws

20     and that there is a fair trial throughout.  That is a concern that we

21     have, something that we believe in, and I'm sure that in that we are on

22     the same level.

23             At the same time, we cannot allow a situation to obtain where you

24     had already consumed, used, over 400 -- 466 hours in cross-examination

25     during the Prosecution case, another 420, a conservative estimate because

Page 21544

 1     it could go beyond that, for the examination-in-chief, plus time that you

 2     are entitled to cross-examine the other Defence witnesses and experts.

 3     It's a difficult scenario and we would like you to appreciate that we are

 4     not happy with the situation.

 5             It is definitely our intention, Mr. McCloskey, that if this trial

 6     has run smoothly, we will do our utmost, with your help, to continue

 7     making it so.  We do understand and appreciate and some people in the

 8     public or elsewhere who may have -- keep a watchful eye on the Tribunal

 9     might think otherwise, that the three months that we have had between the

10     end of the Prosecution case and the beginning of the Defence case, has

11     not been a holiday for any of you.  You bombarded us with motions that we

12     had to decide.  None of us could take a break, a decent break, because of

13     precisely of the amount of motions.  That meant that you were working, in

14     addition you were doing your investigative work in order to compile your

15     list of witnesses, interview them and prepare.  We are fully aware of

16     this.  And we have no intention to make things worse.

17             Three months have been made use of.  To an extent, they have

18     produced results.  They have not however produced the results that we had

19     hoped for.  You may not see it the same way we do.  But that's the way we

20     see it.  And therefore, we need to meet halfway, to ensure that the

21     scenario that we see ourselves working in is such that would allow us to

22     take into consideration, to take into stock, your complaints and your

23     desires.

24             You will understand that the scenario becomes complicated, for

25     example, because when I look at these tables and these calculations, even

Page 21545

 1     with all good intentions and expectations that each one of you will

 2     succeed in reducing your respective Defence cases, still I get statements

 3     like the one I got from Mr. Haynes earlier on this morning, that -- to

 4     the effect that he expects, and Mr. Haynes is not one lawyer who just

 5     throws statements without any -- having given them serious thoughts

 6     before, but he suggests that he thinks, he believes, that he will be

 7     starting his Defence case approximately before the end of this year.  And

 8     my question is:  Are you prepared, all of you, to make a commitment that

 9     by the end of this year, or latest end of January, all the seven Defence

10     cases will be over and done with, will be finished?  Because if you're

11     prepared to make such a statement, then perhaps the language that I am

12     using, the approach I'm taking, will also change.

13             I know that you are going to work on this idea of trying to

14     reduce the Defence case each one of you has been working so hard upon.

15             So the position I am taking, after having consulted with my

16     colleagues and having also seen the tentative chart -- not chart, table

17     or schedule that you have presented us with, is that we are prepared to

18     give it a very serious thought.  We don't want to draw blood from anyone.

19     We know that at the end of the day, you can take the horse to the stream

20     but you can't make the horse drink.  So our position is that we will do

21     our utmost to try and accommodate you as problems become acute, and they

22     are bound to become acute as we go along, but at the moment, not knowing

23     exactly where we stand with you, and having this sort of confusion in our

24     mind that on one side we have an estimate of hundreds and hundreds of

25     hours, possibly total of 1.000 hours, at the same time someone saying

Page 21546

 1     that he hopes, and he is the last one to go, that he will be ready to go

 2     and should be going end of this month [sic], that's all very confusing to

 3     us.  We need more information.  We need to have the situation crystallise

 4     in the clearest way possible, and then you will have a response from us

 5     which we hope will be conducive to a continuation of the case in a smooth

 6     and respectful and practical pragmatic manner that we have endeavoured to

 7     keep it so far.

 8             There are problems and the problems need to be solved.  We are

 9     not in a position to solve these problems on our own.  We can of course

10     impose deadlines, we can impose, we can cut down on the number of

11     witnesses, we have all the powers that I referred to you -- referred you

12     to earlier on during today's meeting.  Our preference would be for you to

13     see more sense into the issue.  This is not a problem that we have

14     brought on ourselves ourselves, but it's a problem that we are not

15     blaming you for because presumably each one presented and organised,

16     planned, the Defence case independently of others and not necessarily

17     knowing the expected length of cases of others.  Some of you have been

18     extremely reasonable but that doesn't apply across the board.  We expect

19     further news from you, and then we decide.

20             As far as the summer recess is concerned, I was noticing,

21     studying this this morning, here there isn't an indication to extend the

22     two weeks into three weeks, as was planned originally.  Here, in the

23     suggested schedule, the summer recess runs from the 4th up to and

24     inclusive of the 15th of August which would mean resuming on the 18th of

25     August.  I don't think we will be able to move on that.  I don't think we

Page 21547

 1     will be able to move on that.  But if we see improvement, significant

 2     improvement, in the scenario that I have been referring to, of course we

 3     are prepared to discuss further with you and see where we can fit in

 4     breaks when they are really needed, and if they are needed.

 5             One thing that I disagree with Mr. McCloskey about is that it's

 6     one thing talking of one Prosecution case that starts and continues.

 7     Here we have seven Defence cases.  So although it is true that while the

 8     Popovic Defence case is on, the other Defence teams are going to be

 9     engaged, they are not going to be engaged the same way you were engaged

10     all the way when you were dealing with your case.  There is a difference.

11     They will be engaged and of course everyone needs a break, but for the

12     time being, please don't ask us to be categoric and give you a

13     straightforward answer, if and to what extent, and when, we would be

14     granting any breaks.  We need to move ahead.  We need to move ahead in a

15     fair manner, which will guarantee you your full rights, not under -- not

16     just under the Statute and under the Rules but under international human

17     rights law, which we can guarantee you all the way.

18             All right.  So the sooner you can come back to us with what the

19     situation is more like the situation is going to be, and the sooner we

20     are in a position to determine the Rule 92 bis and 92 ter motions that

21     will -- that are already in place and will be forthcoming, the sooner we

22     will be able to tell you when we can have a rest, which I'm sure will be

23     well deserved because you are a hard-working lot and the way you have

24     managed to keep us busy during these three months is remarkable, and also

25     indicative that you haven't been sleeping or idling, you have been

Page 21548

 1     working, you have been working hard.

 2             Thank you.  Is there any other matter that you would like to

 3     raise?

 4             There being none, I bring this Pre-Defence Conference to an end.

 5     On the 2nd of June, we will start with your Defence case.  Be prepared

 6     with your opening statement, Mr. Zivanovic, and also your first witness.

 7     One thing I wanted to make sure, there are no protective measures in

 8     place for your -- for Krajisnik, is there?

 9             MR. ZIVANOVIC:  No, not for the time being.

10             JUDGE AGIUS:  No, because Mr. Haynes mentioned him in open

11     session and I want to make sure that we were not doing something

12     irregular.  At the same time, please also make all your arrangements to

13     make sure that he is available for evidence and have other witnesses in

14     line present here in The Hague should, as I expect, his testimony last

15     shorter than you think, Mr. Zivanovic.

16             MR. ZIVANOVIC:  This is for Krajisnik, for Mr. Krajisnik?

17             JUDGE AGIUS:  Yes, yes.

18             MR. ZIVANOVIC:  I don't know right now, because I have to meet

19     him this week or next week, and then I will be able to give a more

20     accurate estimate.

21             JUDGE AGIUS:  You have his undertaking that he will be giving

22     evidence.  I hope you have that already.  Because if you don't have, you

23     need to prepare for that eventuality.

24             MR. ZIVANOVIC:  Yes.

25             JUDGE AGIUS:  This is what I meant earlier on.

Page 21549

 1             So do you wish to make further submissions?  Thanks.  And

 2     Mr. Zivanovic and Mr. McCloskey, please try to meet on the outstanding

 3     issues that you have.  We would very much appreciate if you put us in a

 4     position where we don't have to give certain decisions that are best left

 5     undecided.  Okay?  Thank you.  And good afternoon to everybody.

 6                           --- Whereupon the Pre-Defence Conference adjourned

 7                           at 1.16 p.m.