Tribunal Criminal Tribunal for the Former Yugoslavia

Page 504

1 Thursday, 30 March 2006

2 [Status Conference]

3 [Open session]

4 [The accused not present in court]

5 --- Upon commencing at 9.01 a.m..

6 JUDGE ANTONETTI: [Interpretation] Please call the case.

7 THE REGISTRAR: Good morning, Your Honour. This is case number

8 IT-04-74-PT, the Prosecutor versus Jadranko Prlic and others.

9 JUDGE ANTONETTI: [Interpretation] Thank you very much, Madam Court

10 Deputy.

11 May I have the appearances for the Prosecution.

12 MR. SCOTT: Good morning, Your Honour, Kenneth Scott for the

13 Prosecution.

14 MR. MUNDIS: Daryl Mundis for the Prosecution.

15 MS. D'AOUST: [Interpretation] Josee D'Aoust for the Prosecution.

16 JUDGE ANTONETTI: [Interpretation] Thank you. I'll now turn to the

17 Defence counsel and I will ask them to introduce themselves in the order

18 they are seated. To start with Mr. Karnavas.

19 MR. KARNAVAS: Good morning, Mr. President. Michael Karnavas for

20 Dr. Prlic.

21 MS. TOMANOVIC: Good morning, Mr. President. Suzana Tomanovic,

22 co-counsel for Dr. Prlic.

23 MS. NOZICA: [Interpretation] Good morning. Senka Nozica

24 appearing for Bruno Stojic. Thank you.

25 MR. KOVACIC: Good morning, Your Honour. Bozidar Kovacic for

Page 505

1 Mr. Slobodan Praljak and if I may introduce my co-counsel, Ms. Nika

2 Pinter, who is not yet in this courtroom with us.

3 MS. PINTER: [Interpretation] Good morning, Mr. President. I'm

4 Nika Pinter, co-counsel.

5 MS. ALABURIC: [Interpretation] Good morning, Your Honour. Vesna

6 Alaburic appearing for Milivoj Petkovic.

7 MR. JONJIC: Good morning, Your Honour. Tomislav Jonjic appearing

8 for the Accused Valentin Coric.

9 MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honour.

10 Fahrudin Ibrisimovic and our legal assistant appearing for

11 Mr. Berislav Pusic.

12 JUDGE ANTONETTI: [Interpretation] I'll greet everybody in the

13 courtroom, the representatives of the Office of the Prosecutor, all the

14 Defence counsel who have introduced themselves, and of course I also greet

15 the court management staff, to start with Madam Court Deputy, the legal

16 officer, the usher, the court reporter, and the interpreters in the booths

17 who are going to help us today.

18 In this hearing, which is going to take us, I hope, until quarter

19 to two. We have a very full agenda for this Status Conference. I believe

20 you have received this agenda, and I wish to add another item to the

21 agenda today, a very essential one. I will mention it to you later on.

22 You were aware of the agenda which was as follows: We have the

23 pending motions; item 2, the state of health of the accused; item 2, the

24 time the Prosecution will need for the presentation of evidence and

25 possibly the issue of Rule 98 bis; fourth, the time that will be taken for

Page 506

1 cross-examination by the Defence; item 5, the issue of the admissibility

2 of the exhibits or evidence; item 6, admissibility of video exhibits; 8,

3 the testimony of expert witnesses; 8, opening statements by the accused

4 and the time they will be given. There was a motion filed by the accused

5 Praljak. Item 9, the issue raised by Mr. Praljak who was asking to be

6 allowed to put questions to the Trial Chamber; item 10, sort of a progress

7 report by the Prosecution as to the evidence sheet. Then we will have two

8 items in private session. No need to speak about it now. And possibly

9 miscellaneous. Of course, you know the next Status Conference will be

10 held on the 12th of April.

11 Before we move to the agenda itself, I wish to greet the two new

12 lawyers. This is the first time I'm meeting them. Mr. Kovacevic, and

13 Ms. Pinter who were appointed by the registrar following a decision by the

14 Trial Chamber so that the accused Praljak may be represented. I also

15 learned from the Registrar that Mrs. Nozica will also be assisted by Mr.

16 Peter Murphy to defend Bruno Stojic.

17 We still have accused with only one counsel. I informed the

18 Registrar that it would really be good for them to have co-counsel. You

19 never know. It may happen that a counsel falls ill, has the flu, falls

20 from his bicycle, falls ill for a couple of days. It is therefore

21 necessary for him or her to be replaced. You never know. Or slip on a

22 piece of banana skin. So you have to be at least two people in a team.

23 And I want to convey to you a piece of information dating from

24 yesterday afternoon. I know that you carefully following everything that

25 happens in the life of this Tribunal. The Security Council a Resolution,

Page 507

1 Resolution 1660, which creates a Reserve Judge. The Reserve Judge that

2 was created by the Security Council had to be translated into the Rules.

3 Mr. Karnavas participates in the work of the Rules Committee as

4 representing the Association Of Defence Counsel. The Judges met

5 yesterday, and we have amended Rule 15 bis. We now have a new Rule 15

6 ter.

7 So in a nutshell, it will be four Judges sitting in this case.

8 There will be a permanent Judge, myself, two Ad Litem Judges. So this

9 will be the Prlic Bench, as it were. And we will have an Ad Litem Judge,

10 a Reserve Judge to complement the Bench. But pursuant to Rule 15 ter

11 (ii), the Reserve Judge will be present at all hearings, of course, will

12 be allowed, if need be, through the Presiding Judge to put questions to

13 the witness who will be testifying. However, the Reserve Judge will not

14 take part in the deliberations reading to a vote.

15 What is the use of the Reserve Judge? I ever were to pass away,

16 me or another Judge or for whatever reason, then the time proceedings will

17 continue, and the Reserve Judge, who will have been there from the very

18 beginning, can then step in without any problem.

19 There is another possibility provided for in the Rules, which is

20 the possibility to call upon a Substitute Judge. This happened in the

21 Milosevic trial. You remember that Judge May had to resign for health

22 reasons, and he was replaced by Judge Bonomy. But the procedure of the

23 Substitute Judge makes it necessary to have the consent of the accused

24 whilst with the Reserve Judge it's sort of automatic. He's on standby, as

25 it were, and if need be he can be asked to take part. There is no need to

Page 508

1 ask for the consent of the accused because the Reserve Judge will be

2 present at all the hearings from the beginning of the trial.

3 So the Rules were amended yesterday, and very soon you all will

4 receive an amended version thereof. I want to thank all who contributed

5 to the amendment so that this possibility is now on board.

6 Furthermore, I'd like to move now to the item of pending motions.

7 In this respect, as you know, three decisions were taken by the Trial

8 Chamber since our latest Status Conference. There was one on the 17th of

9 February, 2006. The Prosecution had filed a motion for the admission of

10 UNPROFOR documents from the Spanish Battalion. There was one dated 14th

11 of March, 2006, for judicial notice of facts agreed in other cases before

12 this Tribunal, and you know that we took judicial notice of 88 facts.

13 However, the facts might be opposed by the Defence during the trial

14 pursuant to Rule 94(B) of the Rules.

15 The decision taken on the 14th of March, 2006 denying a motion

16 filed confidentially by Prlic regarding the striking of witness

17 statements.

18 As to pending motions, each time I wonder, because a lot of

19 motions are supposed to be confidential. But that is also to be taken

20 with a question mark. There was a confidential motion by the Praljak and

21 Prlic Defence dated 25th and 26th of July 2005 regarding a request for

22 production of documents addressed to a state.

23 So I turn to Mr. Karnavas and Mr. Kovacic. Did the state answer,

24 or are you still on standby?

25 MR. KARNAVAS: Mr. President, as far as I understand, the state

Page 509

1 has been cooperating to some extent, and we are continuing to -- to work

2 with the state to get necessary documents. That's the best I can say at

3 this point.

4 MR. KOVACIC: Your Honour, my position is about the same, and I

5 have to admit you caught me a little bit off the guard, but at that time

6 we -- we felt that we have to -- to ask Court's assistance, because the

7 reactions of the government were extremely slow and some materials were

8 not accessible simply without some additional pushing from this side, and

9 that was the reason. And I may say that after that, the government did

10 actually prove the delivery and some processes were much faster even

11 though it might have been much better, because some materials we are

12 receiving up to this day which normally might have been done year earlier.

13 But it is not the wish of the government, so cannot ask this Court

14 to press the government because it is not their wish. It is simply their

15 inability to cope with administrative matters. So it's like asking you to

16 change the weather.

17 Thank you so much, Your Honour.

18 JUDGE ANTONETTI: [Interpretation] You understood that I did not

19 mention the state as such because this is a motion filed confidentially,

20 so I'll speak in general terms.

21 From what I understand from you, I can conclude that you received

22 some documents at the level where you are. You feel that you should have

23 received more. I don't know whether you want the Chamber to intervene

24 efficiently. If you do so wish, you can do it now. You can do it later

25 when the trial begins. You can file a motion with a very precise request

Page 510

1 for specific documents. We can then issue an order for the production of

2 those documents to the said state. But the experience I have gained shows

3 me that as a rule, states or institutions faced with such a situation tell

4 us, "There's no problem. We just wanted to know exactly which documents

5 you were requesting."

6 So in your future motion, you will have to specify the documents

7 you needed. It will then be much easier for the Trial Chamber to turn to

8 the state for full cooperation otherwise, they can always tell me it

9 wasn't specific enough, they didn't tell me. So you got me, you got my

10 message.

11 No oral decision today on these two pending motions. My

12 conclusion is that as things stand the motion was met in part, but there's

13 still a missing part which can be settled once the trial has started.

14 We also had motions pursuant to 92 bis, (A), B), C and D. A

15 decision will be rendered within the next 48 hours. The decision or the

16 draft decision is being circulated among the Judges, and very soon you

17 will have a decision.

18 I also had a request dated 27th of December 2005 for the Defence

19 to specify whether they're going to invoke a defence of alibi. There

20 again, a decision will be issued soon. It was pursuant to Rule 67(A)(i).

21 We also had a confidential request or application filed by the

22 accused Prlic on the 7th of March as to the date of opening of trial.

23 Recently on the 23rd of February, I think I settled the problem by issuing

24 an order. This application is therefore moot.

25 There is another motion filed by the accused Praljak on the 13th

Page 511

1 of March with an addendum dated 16th of March for leave to make an opening

2 statement further to Rule 84 bis. Of course, the Trial Chamber will

3 support the idea. The only issue is how much time will be made available,

4 because the accused Praljak is asking for six hours. That would be fine

5 if he were alone, but I'm not sure that the other five accused will also

6 want to make opening statements. So we'll see in due course. If each and

7 every accused wants to make an opening statement, we will have to strike a

8 balance. If Mr. Praljak is the only one to wish to do so, he might be

9 given anything from four to six hours. All this will be decided upon in

10 due time.

11 We had several other motions relating to the translation of

12 documents. We have one from the Prosecution dated 24th of January, 2006,

13 for the Chamber to tackle the issue of translation and asking for a

14 deadline of the 6th of February for documents related to Rule 66 and 68.

15 Now, accused Praljak, as a lawyer speaking English, so there's no problem

16 any more.

17 We were also seized of various filings by the accused Praljak who

18 was not represented by a lawyer, and he also wanted documents to be

19 translated. Inasmuch as it now has two lawyers, this motion is also moot.

20 We had a motion by the Prosecution dated 2 December 2005, related

21 to the order of 30th of November, 2005, for a paper -- paper copies of the

22 documents, and we were told that by the accused Praljak that he was

23 pleased with the electronic system. So this is also moot.

24 So these were three technical motions. We will have a written

25 decision soon joining them all and specifying that they are now moot.

Page 512

1 Other pending motions. On the 17th of February, the Prosecution

2 had asked for leave to file a reply to the -- or a response to the reply

3 by accused Praljak regarding the filings of the Prosecution dated 30th of

4 January, 2006, related to the order of 24th of January, 2006. The

5 response and the leave for reply are denied because there was no need to

6 have a response. There was no need, therefore, to continue to process

7 this issue.

8 On the 22nd of February, the Prosecution had asked for leave to

9 file a reply to the Defence pre-trial briefs. Thereafter, the Petkovic

10 Defence filed a leave to respond including the reply. I remind you of the

11 fact that the Defence pre-trial brief pursuing -- pursuant to Rule 65 ter

12 (F) is not a motion which calls for a reply. The system is very simple

13 indeed. The Prosecution drafts and files a pre-trial brief. The Defence

14 is informed of it, and it will reply by answering and also presenting its

15 views. But there must be an end to something, because otherwise it will

16 be a never-ending process.

17 In this case, I believe that the Trial Chamber has received the

18 Prosecution pre-trial brief and the briefs filed by the six accused

19 pursuant to Rule 65 ter (F).

20 There's list the issue of disclosure of exhibits. I hope this is

21 an ongoing process under Rule 66(A)(i), 66 (A)(ii) and also Rule 68.

22 Should there be any problems remaining until the beginning of the trial, I

23 do urge the Defence to get in touch with the Prosecution in order to

24 settle them unless the problem is such that you need to tell me so.

25 Failing that, I now move to the very core of this hearing. Only

Page 513

1 the 26th of March, 2004, the Security Council adopted a Resolution,

2 Resolution 1534. In the said Resolution which also reminded Resolution

3 1503, the Security Council said the following, and I'm going to say is

4 slowly so that the Prosecution can listen carefully, because what I'm

5 about to say basically has to do with the Prosecution. This is what the

6 Security Council was saying: "The ICTY is requested to take all necessary

7 measures within their jurisdiction to finalise investigations by the end

8 of 2004, to complete all trial proceedings by the end of 2008, and also to

9 complete the Tribunal's work in 2010."

10 Therefore, the Security Council requested that the Prosecutor and

11 the President of the Tribunal go to New York every six months in order to

12 take stock of the steps that have been taken in order to complete the

13 trials by 2008. On this basis, we are now today in March 2006. There is

14 the obligation, the urgent obligation given by the Security Council to

15 complete all trials by 2008. We have the indictment. We have the

16 pre-trial brief. We have the witness sheet or chart. The exhibit lists.

17 Together with the rest of my team, I endeavoured to assess the time that

18 the Prosecution will need in order to present their case.

19 This work took some time, because we had to add up hours, taking

20 into account the estimated number of witnesses, and we ended up with the

21 following figures: If we were to go by the Prosecution's intentions, we

22 might have a trial that would last three years, two weeks, and four days,

23 because you would need for your examinations in chief 804, same time for

24 the Defence, 804. Then re-examination, 10 per cent, so 80. Questions by

25 the Judges, 10 per cent as well, some 92 bis witnesses who might come for

Page 514

1 cross-examination. All this would give 2.123 hours. In other words,

2 three years, two weeks, and four days.

3 Last time I saw you, I told you that as far as I could see it

4 personally, I thought the trial would take four years. In the calculation

5 I've just made, I mentioned three years. Then we would have to grant the

6 Defence another three years. So the trial, all in all would last six

7 years, which is impossible. So if we take it from there everything now

8 becomes clear.

9 I'm turning to the three representatives of the Prosecution. We

10 all have, the Prosecution, the counsels, and the Bench, we are under the

11 obligation to finish in 2008. I would like someone to tell me, and I

12 would like Madam Carla Del Ponte to come and explain things to us on the

13 12th of April, the next Status Conference, what she intends to do, because

14 how can we go to New York and say that we have taken the necessary

15 measures to finish by 2008 when we adopt a system whereby the Prosecution

16 has three years to present its case? So this raises a very serious

17 problem.

18 The Prosecution needs to consider this. Not all three of you,

19 because you're -- the senior Prosecutor was in Brussels and Belgrade, and

20 he is a person who has to manage this case.

21 This is not something that is totally new in this Tribunal.

22 The -- Slobodan Milosevic, which was a flagship case in this Tribunal,

23 this case had also been addressed and the time issues had been addressed.

24 Let me remind you that there were three indictments, and at the time

25 Judge May had intervened on the 10th of April, 2002. Let me refer you

Page 515

1 back to the transcript of the hearing. Page 2782 to 27885. Judge May had

2 explained that a trial must be fair. There should be fairness on both

3 sides, fairness for the Prosecution and fairness for the Defence, and that

4 it was also important to bear in mind the time spent on the case.

5 Judge May said, "The longer case, the more difficult the judgement

6 will be." This, of course, is just a matter of common sense.

7 Judge May had indicated that it was for the Prosecutor to present

8 its case. The Prosecutor should be granted the possibility to do this.

9 It was for the Prosecution to carry the burden of the proof, and I

10 entirely share this view. But Judge May was very much aware of the

11 problem and had at the time stipulated that the Milosevic trial would take

12 14 months.

13 You all know that after this oral decision was rendered on the

14 10th of May, 2003, a new oral decision was made thereby addressing the

15 issue for yet another time. The Prosecution wanted to add a greater

16 number of witnesses, and the Prosecution had been asked to speed things

17 up. At that time, the Prosecution was granted an extra 120 days to be

18 able to call further witnesses to testify.

19 So this is an example we have, the Milosevic case. But I have

20 also another example that comes to mind, and that is the Nuremberg trial.

21 In the Nuremberg trial there were a greater number of accused. The events

22 had taken place on a global level. There had been millions of victims.

23 At the Nuremberg trial it was completed in less than a year.

24 Based on these facts, what are we to do? As a Pre-Trial Judge,

25 but I'm also the Judge presiding over this Chamber, I turn to the Rules of

Page 516

1 Procedure and Evidence where I do find a solution. Article 90(F), which I

2 shall read out slowly: "The Trial Chamber shall exercise control over the

3 mode and order of interrogating witnesses and presenting evidence as to

4 make the interrogation and presentation of evidence effective for the

5 ascertainment of the truth and avoid needless consumption of time." So

6 the Judge therefore has to make sure there is no needless consumption of

7 time. This is why I have asked the Prosecution to move quickly so that I

8 can have this chart to understand which witnesses will be called, what the

9 allegations are, and what the exhibits are so that I get the overall

10 picture and that I understand what it is the Prosecution is presenting in

11 this case. But I can also -- I may also feel that some witnesses are not

12 particularly useful. As you know, it is for the Chamber to determine the

13 list of witnesses. So we could well say out of these 400 witnesses, 200

14 will not come to call to testify. That is a possibility.

15 I come from a culture where we don't impose things. I Try to come

16 to an agreement and find a solution with parties who are able to work

17 together and who consider all of this.

18 Between now and the 12th of April, you will have time to reflect

19 on all of this. But in the meantime, let me do my sums. So please pick

20 up your pens, and you can tick on your pieces of paper the following items

21 I'm about to list out.

22 If according to the Resolution of the Security Council we are to

23 finish this trial by 2008, which means that at that time the Prosecution

24 will have one year to present its case, the Defence overall will also have

25 one year to present its case. It's one year plus one year. That's two

Page 517

1 years. That leads us on to the year 2008 where we comply with the

2 Security Council Resolution.

3 There are 52 weeks in one year.

4 Yes, you would like the floor?

5 MS. ALABURIC: [Interpretation] Your Honour, I consider it my

6 obligation to say this with respect to this matter. The political

7 decision of the Security Council is undoubtedly of great importance for

8 decision making as to the method of work in this Tribunal and its work

9 organisation, and I consider, however, that a political decision by the

10 Security Council cannot influence the organisation of the way in which

11 this courtroom works, because when we come into court with a trial and

12 legal proceedings undertaken, I think that all the parties in this

13 courtroom must be tried fairly and justly. If we cannot ensure the

14 conditions necessary for a just and fair trial in view of some political

15 decision which sets a time limit on us, then I consider that we are faced

16 with a serious dilemma as to what to do. I consider it my obligation to

17 say my views on the matter and my stand, and in conclusion I'm going to

18 say why I feel this need and duty to state my views and position.

19 I consider that it is our primary task to ensure a fair and just

20 trial. I also consider that the indictment and Prosecution must have

21 sufficient time to call all the witnesses it deems necessary and, of

22 course, it is up to the Trial Chamber and the Presiding Judge of the Trial

23 Chamber to assess which exhibits are necessary and which proof is

24 necessary to establish the facts that are considered to be relevant in

25 this trial and legal proceedings.

Page 518

1 I also consider that the six accused in this trial cannot be

2 considered just one group, that is say one subject for them altogether at

3 their disposal as much time as the Prosecution has been granted. I think

4 that these are six individuals who ultimately can have different defence

5 concepts and that each of them has the right to defend himself with -- in

6 full capacity, as if he were the sole accused in this trial, in these

7 proceedings. That is why I consider that the minimum time to be seen and

8 provided for a trial and the time accorded to the Defence is six times the

9 amount of time necessary for the Prosecution.

10 If we were to compare these trials these legal proceedings with

11 all the other trials held at this Tribunal up until the present day, we

12 will establish that we have the largest number of accused here,

13 accumulatively the largest number of accused, the broadest geographical

14 terrain covered, and the longest period of time concerned.

15 Now, to expect such a complex trial, which we are calling a

16 megatrial in this courtroom, should be completed by the end of 2008 I

17 consider to be absolutely unrealistic, and I think that not a single

18 trial, even a very small trial compared to our own trial has not been

19 completed within such a short time span.

20 Now, if decision-making on the methods of work in this courtroom

21 be determined by a political decision taken by the Security Council that

22 the trials must be over by the end of 2008, I consider that we won't be

23 able to ensure a fair and just trial. And faced in a situation of this

24 kind, I personally do not consider that I can do my job in the proper

25 fashion, that I can defend my client in the proper fashion. And if work

Page 519

1 in this case and trial is conceived along those lines, I will be forced to

2 table a request to relieve me of my duties, because I cannot take this

3 responsibility on myself, on my shoulders, under these time constraints

4 and time pressure.

5 So that is the reason for which I have taken the floor. Now, the

6 question remains, what can we do faced with a situation like that? I

7 think there are two possible solutions. One solution is the following:

8 If we assess that the political decision by the Security Council --

9 JUDGE ANTONETTI: [Interpretation] I'm sorry for interrupting you.

10 I'll give you the floor again. This, of course, you were turning to those

11 people who were in the Security Council responsible for this. It is

12 important to address these matters, of course, but this can be managed by

13 providing a series of solutions.

14 Before you took the floor, I was going to look into these

15 solutions, and I will give you the floor again afterwards. As I was

16 saying, I was asking the Prosecution to pick up its pen and paper to do

17 the following sums: Now, if we reckon there is a year. There are 52

18 weeks in a year. If we take away the UN holidays, the winter/summer

19 recess, and perhaps a few technical difficulties, we can, I think, work

20 from 40 weeks. If we reckon we have five days' hearing a week, we have

21 200 hearing days per annum, which means that the Prosecution case could be

22 presented in the space of 200 days. If a hearing starts at 9.00 and

23 finishes at quarter to two, as you know from experience, we basically only

24 have three to three and a half hours, because sometimes we have problems

25 pertaining to the exhibits being tendered and a number of other problems.

Page 520

1 So basically examination-in-chief lasts three hours. So three hours

2 multiplied by 200. That totals 600 hours, which means that if we are

3 talking about one year in which the Prosecution would be presenting its

4 case, we would have all in all 600 hours, all included. In other words,

5 the time allotted to the Prosecution and the time allotted to the Defence

6 for its cross-examination.

7 The Prosecution would have a credit of 600 hours. The Prosecution

8 should feel free to break down this time -- this time whichever way it

9 feels best. But this -- as regards this breakdown, the Judge also have a

10 say in the matter, because Judges need to make sure that no time is

11 wasted, and we have two objectives in mind. A, the interests of justice,

12 and the ascertainment of the truth. So these objectives, of course, take

13 into account the indictment.

14 We have three major areas in this indictment, the joint criminal

15 enterprise, individual criminal spot of all the accused, and the facts,

16 the facts which bring together a number of municipalities. These are the

17 three main parts of the presentation of the case.

18 From a personal standpoint, let me say that facts are important,

19 of course, because facts need to be established. There are a great number

20 of facts, as you know. There are huge facts. No later than yesterday, I

21 looked into those facts that related to Prozor, where in the annex we find

22 more than 175 items that need to be established according to the

23 Prosecution.

24 If I turn to these 160 items -- 175 items, I found 122 which each

25 require a witness testimony to establish the truth of the fact which is

Page 521

1 mentioned. So all of this takes time. This is something we are all able

2 to understand.

3 According to the filings submitted by the Prosecution and looking

4 into all the annexes that cover all these municipalities, in the tradition

5 of this Tribunal, this could take a great deal of time. The facts have to

6 be mentioned, of course. This is just a suggestion I'm making. Out of

7 these 600 hours, I feel that one-third of the time could be dedicated to

8 facts. In other words, 200 hours. If you divide this by the 12

9 municipalities and prisons, let me take the case of Gornji Vakuf, for

10 instance, the Prosecution would have 20 to 30 hours to present the Gornji

11 Vakuf facts.

12 Now, with the remaining 400 hours, as I told you a while ago there

13 are two very other important points, the joint criminal enterprise, which

14 require evidence, and the individual criminal spot of each accused which

15 needs to be proven by the Prosecution. This could also -- time could also

16 be broken down in a particular way. A hundred hours dedicated to joint

17 criminal enterprise and 300 hours for individual criminal responsibility.

18 If I divide this time by the six accused there would be 50 hours that

19 could be dedicated to each accused.

20 This is just a cue I'm giving you. The Prosecution, of course,

21 has to decide what it is it wants to do, but this does raise a very

22 particular issue. And I feel it's my responsibility to talk about it. I

23 have -- I listened very carefully to what was said about having a fair

24 trial, and when there is a charge, the Defence of course needs to be able

25 to provide its viewpoint during the cross-examination and by preparing its

Page 522

1 Defence strategy. There has to be equality of arms, of course, and a fair

2 trial.

3 But if we turn to cases that have been tried or could have been

4 tried, like the Milosevic case, nothing is impossible, because the

5 Prosecution can narrow the indictment. At any time the Prosecution can

6 seize the Chamber with a view to amending the indictment. If you were in

7 the navy, you say you can cut in the sail or reduce the sail. So this is

8 a technical solution for those who like to sail. I know we have a naval

9 officer in the room. So this is a possibility. By reducing the sail, you

10 are able to fit it in the time that is being allotted to you.

11 Another solution would be revolutionary in this Tribunal, but as

12 far as I'm concerned would not be a particular problem. And the Rules of

13 Procedure and Evidence provides for it, but as I said, this would be

14 really revolutionary. The solution would be the following: The

15 Prosecution could call its witnesses, but the examination-in-chief of the

16 witnesses would start off by questions from the Bench so that what is

17 essential is addressed straight away. After the questions by the Bench,

18 the Prosecution then leads the evidence on the witness and then the

19 Defence cross-examines the witness. So after those questions put by the

20 Bench of course, we would focus on what is essential. This is a way of

21 gaining a lot of time.

22 Experience has demonstrated that when a witness testifies for an

23 entire day, 15 or 20 minutes are really useful but the rest of the time

24 isn't really useful. All you need to do is refer back to the judgements

25 and testimony.

Page 523

1 This would be one way of doing things, but as I say, this would be

2 so revolutionary that I -- this is only a suggestion I'm making. Unless,

3 of course, everybody were to agree to this. And I would start off by

4 asking questions or putting questions to the witness.

5 I don't think the Prosecution has any intention of going along

6 with this.

7 Another solution which would be a far simpler solution would be

8 the following. When a witness is called to testify, the Prosecution could

9 focus on the core of the testimony and avoid asking questions which might

10 be interesting from an intellectual standpoint, but as far as the case is

11 concerned are not so useful, perhaps.

12 Let me give you an example. Let's imagine we have a Witness X who

13 has been a victim in a municipality. Let's call it Y. Are the following

14 facts: This woman has been brought from her home, she is put in a camp, a

15 detention camp, her house is burnt down, her property is looted, and in

16 this camp she would have been abused. So the witness comes and comes

17 called to testify. You know that there are a number of witnesses that fit

18 this picture.

19 So what is important here? It is important to understand whether

20 what the witness is saying is true, whether this person has been beaten

21 up, whether her house has been destroyed, and whether her property has

22 been looted. So a whole series of questions can be put to her, and this

23 deals with the heart of the matter. And if you put the questions

24 cleverly, the witness can then say or talk about what has happened to her.

25 This can last no more than 25 to 30 minutes. The question can be settled

Page 524

1 in a very short space of time.

2 If the Prosecution deals with this in an efficient way, we can

3 then hear three to four witnesses during a hearing, which is a

4 considerable way of gaining time. We then focus the questions on the

5 heart of the matter. In other words, what -- what the person has studied,

6 what her status is and how many family members she has. This could be

7 very interesting. But as far as the indictment is concerned, as far as

8 the alleged facts are concerned, this is perhaps not so useful. However,

9 it is most important that she describes what happened to her and who did

10 what to her. So by focusing on the questions in this way, we can gain a

11 lot of time. But this is for you to decide.

12 The Rules of Procedure and Evidence provide for this possibility.

13 I can intervene and say, "Please don't ask this question," but I think

14 it's better when professionals deal with this directly. I think it's

15 better to understand how it is -- it's better to understand how it's best

16 to ask questions rather than having the Judges turn round and say no, you

17 wasn't put the question properly and then everybody wastes their time.

18 So this is just a suggestion I'm making. I would like you to

19 think about this. I think Madam Carla Del Ponte in person is responsible

20 for all of this here, because I don't think this -- I don't -- it's --

21 this case cannot last six years. Technically speaking, it cannot, but

22 given the number of exhibits, the number of witnesses, the way the

23 Chambers work, it could, in all likelihood last six years. But we

24 cannot -- we do not have this sort of time.

25 On several occasions the Security Council has indicated that if Ad

Page 525

1 Litem Judges have been appointed, that was the whole purpose of it. If

2 there's -- a standby Judge has been appointed that was the whole purpose

3 was to speed up the process. If we have drafted an 11 bis Rule, the whole

4 purpose of it was to be able to refer some cases back to domestic

5 jurisdictions and only try before this Tribunal the most important cases.

6 So the Security Council really wishes this Tribunal to finish its

7 cases since this -- the Tribunal will not go on forever. This is why as

8 of 2004 onwards, new investigations have not been opened.

9 So it's all very well to have a fair trial. Yes, of course you're

10 quite right, and what you've said is something noted and I will hand it

11 over to the president of this Tribunal, but all will depend on how the

12 Prosecution will present its case. From a technical point of view, if we

13 look into the number of witnesses, the number of exhibits, the number of

14 municipalities and very complex issues at stake, the indictment and the

15 way the indictment is currently drafted, I think it seems totally

16 impossible to finish this case before two years, the two years are up.

17 And if we are able to finish this case in two years, this means that a lot

18 of effort and input will be made by all and everyone a change of mindset

19 also.

20 I want to address this issue with you to make sure that all the

21 parties present were advised of this. If at this stage the Prosecution

22 would like to say something, I'll be very willing to give them the floor,

23 but I believe that it is for Madam Carla Del Ponte to advise the Chamber

24 of her intentions.

25 Mr. Scott.

Page 526

1 MR. SCOTT: Thank you, Mr. President, and may it please the Court,

2 I will certainly convey your invitation to Madam Del Ponte, and I'm sure

3 that a much further response or more extensive response can be provided to

4 you in the future. I will share with you in the next few minutes a

5 preliminary or provisional response of some of our thoughts on the

6 questions that the Chamber has raised.

7 First of all, the Security Council Resolution of course is not

8 directed to the Office of the Prosecutor by itself. The Security Council

9 Resolution is directed to the ICTY as a whole. If the ICTY fails as an

10 institution to proceed efficiently, there can be an entire host of reasons

11 why that can be the case without any fault of the Office of the

12 Prosecutor. If the ICTY insists on going forward on the most conservative

13 common law approaches and is not innovative in what it does, then indeed

14 the institution may fail, and that would not be due to any fault of the

15 Prosecution.

16 This Prosecution team for the last two years has done everything

17 within its power to move this case as efficiently as possible. We've used

18 every available tool, some in traditional ways and some in ways that we've

19 proposed as to be more creative in how we might move this case forward.

20 We over a year -- about a year ago filed a motion for the adjudicated

21 facts. We appreciate that the -- this Chamber, Your Honour, has finally

22 ruled on that motion almost a year later. We wish the Chamber had been

23 more expansive in the adjudicated facts found, but that's where we are.

24 If it means that we have to re-litigate and litigate again and again

25 issues and facts that have been determined in other cases, that again

Page 527

1 makes this case much less efficient.

2 We have tried and spent a considerable amount of time trying to

3 reach agreed facts with the Defence to find out if there were things that

4 are not disputed, that we don't need to take courtroom time to present

5 evidence, that the issues could be narrowed, that there really is not a

6 dispute that a particular village was attacked on a particular day. There

7 really is not a dispute that this woman and her children were evicted from

8 her home in the middle of the night. That's not really disputed. We've

9 done everything we can to narrow the issues.

10 We have tried -- that didn't go anywhere unfortunately,

11 Your Honour. It didn't lead into any significant results.

12 Five filed numerous motions under 92 bis for the admission of

13 written testimony, written evidence. Those have been denied to date. So

14 that is no fault of the Prosecution. We have tried -- we have sought the

15 pre-trial admission of exhibits through the motions we have filed since

16 last fall to admit the ECMM documents, to admit the Spanish Battalion

17 documents, to admit other documents. We have tried to do that because I

18 heard many people say over the last couple years why can't this be done

19 pre-trial? Why do we have to waste trial time on these kind of things?

20 So this Prosecution team tried to take an innovative approach and deal

21 with those issues before trial. Unfortunately, our efforts were denied.

22 Our response and our reply to the Defence trial briefs and whether

23 our filing, Your Honour, on that is accepted or not, our position remains

24 the same. The Defence trial briefs, with all respect, do not comply with

25 Rule 65 ter (F). That Rule specifically requires the Defence to say which

Page 528

1 specific issues in the case are disputed and why. And I invite the

2 Chamber to look at that Rule again. The language of that Rule. I submit

3 respectfully, Your Honour, it could not have been, it could not have been

4 the intention of the drafters to simply accept a generic "we deny

5 everything." If a we deny everything response is acceptable, if that's an

6 acceptable approach then the Rule 65(F) is meaningless and indeed as

7 Your Honour says these cases cannot be tried efficiently because we're

8 going to waste a huge amount of time, Your Honour, for the Prosecution to

9 prove things that at the end of the day will not real be -- have been

10 disputed. But there's been no -- there's been no requirement for the

11 Defence to comply with Rule 65 ter (F) and accept -- we dispute

12 everything.

13 As Your Honour knows, unfortunately comparisons to Nuremberg are

14 rather meaningless because the proceedings -- the procedures at Nuremberg

15 were entirely different than the proceedings at the ICTY.

16 As Your Honour has said, all parties, including the Prosecution,

17 are entitled to a fair trial. If the Chamber does not allow the

18 Prosecution an adequate opportunity to present its case, then of course

19 the Prosecution will be denied a fair trial.

20 If insufficient evidence is allowed to prove the Prosecution case

21 and the 92 bis motions by the Defence the issue of the sufficiency of the

22 evidence is raised and if the evidence indeed allowed by the Chamber has

23 been too limited and too narrow, the Prosecution might even find itself in

24 the situation of agreeing with the Defence that based on the limitations

25 on its case placed by the Court we have not been able to present a

Page 529

1 sufficient case.

2 The alternative to many of these things, Your Honours, is to be

3 more creative, and this trial team, this Prosecution team is prepared to

4 do that. We do not have to be wed to the most conservative common law

5 system and I say that, Your Honour, as a common lawyer. I practised in

6 the common law system for the past 25, 26 years. But I can tell you that

7 I am personally not wed to that system, and we need to be more creative in

8 this institution. More evidence in writing is one way to proceed instead

9 of calling all these witnesses live. We might even consider something

10 like a modified dossier, a dossier per crime base with all the witness

11 statements, all the exhibits for that particular crime base, for example,

12 Prozor, in a dossier that would be presented to the Defence and we would

13 ask the Defence again to tell us in that dossier exactly what is disputed,

14 and on the basis of that we can decide which evidence would need to be

15 presented. Now, we can be more creative and we can make -- we can try

16 this case efficiently or we can do it the most conservative, old-fashioned

17 way.

18 My point is Your Honour you will find in this particular time team

19 a willingness to be creative and innovative and try to move this case

20 forward effectively. And we are more willing to work with you in that

21 regard. However, at the end of the day we have to decide how best to

22 present our case and meet our burden of proof, and meet our responsibility

23 to the international community, to meet our responsibility to the victims

24 who deserve for justice to be done.

25 I'll leave that, Your Honour, as I say our provisional response to

Page 530

1 Your Honour's thoughts this morning and I'm sure we can make a fuller

2 response on the 12th of April.

3 JUDGE ANTONETTI: [Interpretation] I thank you, too. I listened to

4 you carefully, and everything you have said is very reasonable. Indeed,

5 if the Trial Chamber had granted all the requests pursuant to 92 bis or to

6 judicial notice, it would have made things easier and we would have moved

7 ahead, but there are two parties to a trial, you and the Defence, and if

8 the Defence told us, "We agree, or a judicial notice is requested but this

9 is not okay for us because this impacts on the liability of my client," I

10 as a Judge have to take this into account. You see, that's the problem.

11 That's really where the problem lies.

12 The Rules have provided from ways of really moving fast, but it

13 can only move fast if everybody plays the same game. But if the Defence

14 teams tell us we don't agree, well, the provisions of the Rules cannot

15 really work.

16 But I want to react to what you said because it was very

17 interesting, and I really invite the Defence to think it over.

18 In the Prozor annex, you have 175 facts. They are described in

19 turn. It would indeed be very interesting if the Defence were to take a

20 stance. Look at it. You have fact 133, fact 152. You list people who

21 were killed during the attack. If the Defence were not to challenge the

22 fact that these people were killed, this would mean that we can move

23 ahead. It simply says that during the attack the HVO killed, and that's

24 where the problem is. Either you admit that these people were killed by

25 HVO forces, possibly during fighting or otherwise, I don't know, but if

Page 531

1 you were to admit that we could really progress. And there is a host of

2 indications if the Defence were to agree or may -- means of moving

3 forward.

4 Another example. Of course this is much more sensitive, because

5 it is alleged that some people were sexually abused or raped. There

6 again, it is challenged or it is admitted. If it were to be admitted, the

7 only problem for everyone is to see who is responsible, to see command

8 responsibility in that.

9 As was stated by Mr. Scott, we must be creative. That is for

10 sure.

11 In the indictment with regard to municipalities, you can see that

12 in some villages dozens of houses were burned down, looted. It would not

13 be necessary in my view to have four or five witnesses who would come and

14 say the same thing. One is enough. But it is up to the Prosecution to

15 say one -- this witness is enough. I don't need the other four.

16 Creativity should also be the province of the Defence, not just

17 the Prosecution. So at this stage I really am curious to hear the Defence

18 teams. Let's starts with Mr. Karnavas.

19 MR. KARNAVAS: Again, Mr. President, good morning. The

20 Prosecution says we should be creative. I say to them they should be more

21 fair. As we speak today they are still out in the field investigating

22 their case. They chose the time when they wanted to issue the indictment,

23 what they wanted to include in the indictment. They designed the

24 indictment in the fashion in which they did. They amended it in a way

25 that includes every single mode of liability including the one that was

Page 532

1 created by this Tribunal, the joint criminal enterprise, and here they

2 have the nerve to stand up and say that they're being creative and

3 we're -- simply are the ones that are stalling.

4 I've tried being creative in the previous case. I was told we

5 have to stay by the rules. And of course when the Prosecution wanted to

6 be creative, I insisted that they play by the rules as well. I have no

7 problem with thinking outside the box. I think that's the best approach.

8 However, I do believe that we have to put first and foremost the rights of

9 our accused ahead of anything else. In the past this Tribunal has gone on

10 with cases that were level 1 for years on end. I can point to one in

11 particular that is going on at the moment or just finished. It should

12 have been a six-month trial. The problem with that is if you're an

13 outsider, you tend to look and say, well, is this person getting a longer

14 trial, a fairer trial, because of his nationality, whereas in another case

15 there are fewer resources, you being pressed. I don't know. I don't want

16 to speculate. I don't want to go there. The bottom line though is that

17 those case that is preceded us back in the mid-1990s, late 1990s,

18 obviously there was more money for preparation. There was more time,

19 there was more patience. The Security Council now tells us, finish by

20 2008. That is an impossibility. All you need to do is the numbers. When

21 you look at the cases that are waiting to go to trial and you look at the

22 size, it's an impossibility. It won't happen under any circumstances if

23 there are going to be fair trials.

24 Judge hunt indicated that if the UN does not have the money or the

25 intestinal fortitude to provide fair trials for those that they wish to

Page 533

1 accuse and try, then they shouldn't set up tribunals. I support Judge

2 Hunt's position. The Security Council established this institution. They

3 should finance.

4 The Prosecution has the right and the discretion to charge

5 individuals and to charge them in the fashion in which they wish. The

6 Security Council curtailed Madam Del Ponte's or the Prosecutor's powers to

7 some extent in that the Bureau now, or at one point, had to intervene to

8 see whether certain cases were within the sort of cases that should be

9 tried before this Tribunal versus cases that should be tried at the state

10 courts. The problem is that the Prosecution in this Tribunal, and you

11 have literature from Judges more or less speaking about this, these

12 tribunals have been used not for the purposes or for the sole purpose of

13 trying an individual to see whether that individual committed crimes but

14 in order to get to the historical truth, for reconciliation purposes, and

15 I think somehow this Tribunal, and I spoke of all of us that are involved

16 in this Tribunal, have lost sight of the fact that this is nothing more

17 than an international criminal court. That's all it is. We're not going

18 to get to any historical truth here. It's impossible. Why? Because at

19 the moment you're cutting deals with the accused to plead out to certain

20 things or some accused or some suspects are not charged and others are,

21 where governments don't cooperate and provide all the documents, where the

22 Prosecution can't get a hold of all the documents on time, and vice versa.

23 It makes it virtually impossible to get to the historical truth.

24 Therefore, I think we need to step back and realise this is nothing more

25 than a criminal court where some international laws are applied and a

Page 534

1 procedure that evolves.

2 I'd like to say that the rules change as the game is being played.

3 Now, as long as the rules are not changed too much and it doesn't hurt

4 either side it's not a problem, but if we're going to the extent to change

5 the rules where it impacts one party or the other, there I could have a

6 problem. Speaking of changing the rules, I certainly don't object, by the

7 way, if Your Honour wants to take the lead on questioning. The more I --

8 the more I'm in these cases the more I appreciate the romano-jurudique

9 [phoen], and particularly the French system where you have an

10 investigative Judge. And that's the problem. When they talk about having

11 a dossier, this Prosecution cannot be treated as an investigative judge.

12 They have no obligation to search for exculpatory evidence. They have an

13 obligation to turn it over if they come into possession of it. But they

14 certainly don't commence an investigation in trying to find -- in a

15 balanced fashion. They have a target in mind. They proceed with that

16 target. They collect evidence accordingly. They decide who they're going

17 to investigate, who they're going to talk to, what evidence they're going

18 to collect. And so, to say that somehow they can come up with a dossier

19 at this point in time I'm afraid that I would not be very -- I wouldn't

20 welcome that idea only because I'm suspect of it.

21 They talk about agreed facts and adjudicated facts. When you look

22 at those facts, certainly they're all to the disadvantage of the accused

23 and all to the advantage of the Prosecution. In previous cases, the other

24 lawyers had other tactics. There was maybe fewer documents to worry

25 about. Certainly there are different tactics. And also when you look at

Page 535

1 the indictments, they didn't have what we have in our particular

2 indictment. So how can I possibly accept an adjudicated fact if the Judge

3 was labouring under less evidence, perhaps less creative lawyering. I

4 don't know. All I know is that I represent a client, and that client is

5 entitled to the full rights just as all the other rights that have

6 preceded my client and the ones that will follow.

7 I don't think that we can try this case within two years. I

8 really don't think that. I would like to do it in two years. But it can

9 be done. Now, how can it be done? I think the only possible way that it

10 can be done is for the Prosecution to go back to the drawing board and to

11 amend that indictment and to cut the sails in. Now, why do I say that? I

12 say that because if you look at the indictment very carefully, paragraph

13 17 sticks to mind. For me it's that paragraph 17.1 because it discusses

14 Dr. Prlic. Again, they have indicted and charged on every conceivable

15 mode of liability. As Your Honour has aptly pointed out to the

16 Prosecution, surely they must have had some evidence in mind, some

17 documents, some witnesses in mind when they said that he planned, he

18 committed, he aided and abetted, that would go specifically to that

19 particular mode of liability. Or have they done as we call in America

20 thrown everything in including the kitchen sink hoping something might

21 stick. Everything in the alternative. Therefore it's as if I'm shadow

22 boxing throughout the whole trial figuring out, where is that moving

23 target going to be.

24 So they could very well if they want to be creative and if they

25 want to be fair go back and cut it. His Honour asked them to provide a

Page 536

1 proofing chart, a real proofing chart, one that demonstrates with

2 specificity where each document goes and I think if the Prosecution were

3 to do that, it would then allow us to do what they're asking us to do,

4 which is to say with specificity what we challenge. But I dare say when

5 they submit a pre-trial brief with all those other documents and we're

6 trying to -- we have to sort it out, and they're asking us to more or less

7 lay out our defence in advance of their case so that he can do his

8 rebuttal of my case in his case in chief where I don't think that's a fair

9 process, and to some extent in court we do have an adversarial process.

10 The Prosecution does have the burden of proof. I'm not here to make his

11 life any easier. In fact, I'm here to make it harder. Let's be honest

12 about it. I'm not here to be unfair to him. I'm here to help you,

13 Your Honour, sort out the facts so that at the end of the day you can make

14 a valid, honest, and appropriate decision based on the facts by taking the

15 facts and applying the law in reaching a just decision.

16 So I don't think that the Prosecution is fair when they try to

17 shift the blame on the Defence. I understand that Mr. Scott and his team

18 have been working very, very hard, and I commend them. I can assure you

19 that they're working hard as we speak, and they will continue to work.

20 They will continue to gather evidence. How can I, on earth, then say to

21 you that I can comply within a certain time period if at the same time

22 they're continuing to gather evidence because they're not quite sure what

23 their evidence is? They're still hoping to find some smoking gun, some

24 document, something after all these years. It's not as if I'm working

25 within a particular amount of documents and witnesses that I can rely on

Page 537

1 and say "this is the case."

2 Getting back also to being creative and this dossier, this is why

3 I appreciate more and more the civil law system. At the pre-trial stage I

4 have absolutely no ability to somehow influence the level investigation.

5 I can't say to the Prosecution, "By the way, you should talk to these

6 witness or collect this evidence." Okay? I'm not there. They've decided

7 to approach their case in the manner in which they did. Fine and dandy.

8 That's their prerogative. Obviously they're not can have depth about

9 their case because they continue to investigate. Did they give us

10 assurances today that they will stop the investigation completely, that

11 they will no longer go out in the field and question witnesses, that they

12 will no longer gather evidence, that this is the bundle of evidence within

13 which we have to work with? I dare say they cannot and they will not do

14 that. Nor do they have to do that because they have a particular

15 obligation, and they are entitled to a fair process as well. And I

16 understand that and I appreciate that. On the other hand you have to

17 appreciate our position. Every time they go out and meet with a new

18 witness I've got to send somebody out there to see whether that witness is

19 telling the truth. Every time they gather evidence I have to check that

20 evidence and see, is there something else that they failed to collect

21 because again as I have to point out, they don't have to collect

22 exculpatory evidence. It's not like the ICC and it's certainly not like

23 the former Yugoslavia where at least there investigative judges and

24 Prosecutors were from a different mindset. I don't want to impugn this

25 Prosecution team, but surely they're not here to help us. They have a

Page 538

1 result in mind. Their entire case is motivated by that result. Their

2 entire procedure is motivated by that result. They want to get a

3 conviction on each and every charge, and I'm not going to make it any

4 easier. I will make concessions where I think there's no need for me

5 to -- to argue a point if for the sake of arguing.

6 I believe the only thing I need to ask myself each and every time

7 I stand up is the question am I asking or the argument that I'm putting

8 forward, is it relevant to the case? Is it helpful to the trier of fact

9 in order to benefit my case? That's what -- that's what motivates me,

10 that one single question: Is what I'm doing relevant? Nothing more,

11 Your Honour.

12 So I don't have much more to say. I believe Ms. Alaburic was

13 very, very eloquent in talking about the politics of the Security Council.

14 I don't want to go over that all over again, but I do agree with

15 everything she has said, and I don't think this is about politics. This

16 is about several individuals that the Prosecution would like to see die in

17 prison. That's their motive, especially with my particular client. The

18 kind of sentence that they will stand up and argue at the end of the trial

19 is that this man die in prison. And when I look at that, that's what

20 motivates me. That's what gets me up every morning and makes me come over

21 here and think, no, not today. You're not going to have him. I'm not

22 going to make any concessions. You prove your case. If you can prove it,

23 fine; if not, move on. Thank you.

24 JUDGE ANTONETTI: [Interpretation] Very well. Before the break we

25 have another five minutes. Do you want to use the five minutes? Please

Page 539

1 do.

2 MS. NOZICA: [Interpretation] Thank you, Your Honour. I will try

3 to fit within the five minutes.

4 The question that you have raised today whether it is possible to

5 complete this trial within two years, whether it is possible to complete

6 this task, my answer to that question is this is an impossible mission.

7 This cannot be done without this condition that Mr. Karnavas spoke about,

8 namely the Prosecution needs to reduce the indictment drastically or do

9 something else that would facilitate our work, that is to say get rid of

10 alternative charges, because it is precisely these alternative charges, as

11 Mr. Karnavas said, that mean that we are unable to accept adjudicated

12 facts from other cases because those facts had been determined in a

13 totally different context.

14 Another matter that I wanted to say is that I believe it

15 impossible, unacceptable and irreconcilable with the concept of the fair

16 trial to complete this trial within two years, because the witnesses

17 offered by the Prosecution are enough to take the two-year period. That

18 alone will take the two-year period.

19 However, there is something else that we have to bear in mind. It

20 is not just the fair trial that needs to be ensured, but it is also

21 important to establish facts which would significantly reflect upon the

22 future of the area from which the accused in this case hail. These facts

23 are very important. They will have long-term impact on what will be

24 happening in future in that area. This is precisely the reason why we may

25 not and should not say that this trial must be completed within two years.

Page 540

1 We have to look for ways to extend that deadline, and this is something

2 that we have to say loud and clear today.

3 Let me reiterate that I believe this to be an impossible task.

4 The Defence of Mr. Bruno Stojic has done everything to ensure that there

5 should not be one day's delay in this trial. I accepted lead counsel.

6 Mr. Murphy was elected yesterday. We did not seek for a day of

7 adjournment, and we found ourselves in the situation where we had 9.700

8 documents and CDs. In order to open just one single document, you need

9 three minutes. This can give you an idea of what efforts the Defence of

10 Mr. Stojic, as well as all other Defence teams in this case, put in, in

11 order to ensure that this trial proceedings proceed smoothly.

12 I can have some understanding for the position of the Prosecution,

13 because I was a prosecutor for 17 years myself. Therefore, I can

14 understand some of the things they are doing and the reasons for that. I

15 hesitate to use harsh words, but I have to use them. It is irresponsible

16 to accused the Defence of failing to accept certain facts or certain

17 charges in the indictment. Our accused have not been indicted for

18 specific crimes. They cannot be expected to say whether certain Bosniaks

19 were killed in Prozor and by who, because most often our accused

20 do not know that. The burden of proof lies on the Prosecution, and it is

21 the Prosecution who has to prove whether it is so or not.

22 Finally, in conclusion, I wish to say this: Up to today, and let

23 us exclude today's date because we received a new document from the

24 Prosecution, but up to today, we were told by the Prosecution that among

25 the first witnesses we will have two witnesses and one expert witness. We

Page 541

1 did not receive any statements concerning these two witnesses. As for the

2 expert witness report, we received it only five days ago. We are supposed

3 to start the trial which the Prosecution has been preparing for two or

4 eight years, if not longer, and we are supposed to enter the courtroom in

5 the situation where we have no information on our first witnesses. We are

6 just being given that now, and we can only begin our work now.

7 I think that this is the proper moment to say that this trial

8 cannot be concluded within two years. Nobody can expect us to do that.

9 Thank you.

10 JUDGE ANTONETTI: [Interpretation] It is now 10.30. We have to

11 have a technical break. We shall resume at ten to eleven, and I'll give

12 the floor to Mr. Kovacic.

13 --- Recess taken at 10.30 a.m.

14 --- On resuming at 10.51 a.m.

15 JUDGE ANTONETTI: [Interpretation] Mr. Kovacevic.

16 MR. KOVACIC: Thank you, Your Honour. I'll try to be brief.

17 First of all, I'm kindly asking you to permit me to speak in my own

18 language. It will be easier and probably a bit more precise. Thank you,

19 Your Honour.

20 [Interpretation] First of all, I fully agree with what has already

21 been said by my colleagues Mr. Karnavas and Ms. Nozica, and I join in what

22 they have said, so I will try and avoid any repetition.

23 I also agree with all the theses put forward with regard to the

24 completion strategy that you yourself mentioned, Your Honour, and your

25 starting point in the deliberations, in fact, and especially bearing in

Page 542

1 mind your assertions about the potential possibilities open to the

2 Tribunal in curtailing the time that many the trial will take. However,

3 as you yourself stated, and I think that you quoted His Honour Judge May,

4 over and above all those requirements for an expeditious, speedy and

5 rational trial and especially in view of the closing strategy is the

6 requirement for a fair trial. And on the list of all the principles that

7 the trial must subscribe to is that it must be a fair and just trial. I

8 don't think I need elaborate this principle, because if we continue the

9 proceedings and comply with the founders, the Security Council deadlines,

10 and the trial is not fair, then the trial will have served no purpose. So

11 there's no dilemma on that score whatsoever.

12 Now, looking at the substance of the matter, the length of a trial

13 in all trials throughout the world, and this Tribunal is no exception and

14 can be no exception to legal proceedings throughout the world, the

15 duration of each trial is determined by the indictment. The Prosecution

16 has all the legal prerogatives to define and give shape to the indictment,

17 and it functions not only on the basis of the principle of legality but

18 also has the right to function and is indeed doing so at this Tribunal as

19 well on the principle of opportune-ness. So that is to say that you hold

20 somebody responsible for something that you have proof and evidence about

21 and which satisfies other parameters, a minimum above the perimeters, the

22 interests of justice, the interests of the victims, and so on and so

23 forth.

24 In the Kupreskic trial, for example, where we were dealing with

25 the Croatian-Muslim conflict in Bosnia in 1993, it was not an

Page 543

1 international conflict, it did not plead that. But in Kordic and Cerkez

2 and Blaskic as well, those trials, is not to be found in any of these

3 trials. In Halilovic, in Hadzihasanovic, for example, in those cases

4 it -- the indictment was very rational, very narrow, and just a few

5 relative facts were selected and the indictment was constructed on those

6 few facts. And I can say that otherwise it would be too broad.

7 So the indictment defines and determination the duration of a

8 trial. All other measures and considerations which could be used in one

9 extent or another without infringing upon the principal notion of a fair

10 trial can have their influence. Depending on our conventions, they can

11 have a 5 per cent influence a 10 or 15 per cent influence, but they cannot

12 have a greater influence than 15 to 20 per cent, let's say.

13 The Prosecution, in what it said a moment ago, stated that this

14 Trial Chamber, this Tribunal, the Court or the Pre-Trial Judge did not

15 allow the Prosecution to use all its creative potential and instruments

16 which could abridge the duration of the trial. We're talking about

17 adjudicated facts, for example, notorious facts, introducing 100 witnesses

18 into the record of these proceedings, and so on and so forth. I don't

19 want to enter into that realm. My colleague, Mr. Karnavas, has presented

20 arguments as to the limitations of things like that. There was no joint

21 criminal enterprise, he said, and so on and so forth. He raised those

22 issues.

23 The Prosecution is in fact striving for a -- written proceedings,

24 if I can put it that way, to my mind. Now, attorneys, whether we come

25 from the common law system or civil law system, we all know that written

Page 544

1 submissions and written proceedings or, rather, proceedings which to a

2 large extent evolve through documents and written material, the keeping of

3 records and so on and so forth is more or less applied in civilian

4 matters, civilian lawsuits but not in criminal trials and I think the

5 general optimism displayed by the Prosecution at this Tribunal is based

6 around the use of material from previously adjudicated facts in previous

7 trials, through one form or another, and that they are very optimistic in

8 their hopes, because when we come to a specific case and see the

9 differences that exist and why some material can be used whereas other

10 material cannot be used in one particular case, then we see that we come

11 across a series of problems and limitations. We either have to forget the

12 principle of a fair trial in order to neutralise those limitations and be

13 able to use more material from other trials or do something else.

14 So what I'm saying is the possibilities of shortening the trial

15 the duration of the trial are very modest. You can apply them, but just

16 to a very small measure, make them have a very small influence on the

17 case. Everything else, 90 per cent of the legal proceedings that follow

18 are the result of an indictment. And what we speak of an indictment in

19 this specific case, I would like to say the following: The Prosecution on

20 the one side says we have to use and endeavour to use material from other

21 trials, records, statements of witnesses, adjudicated facts, things like

22 that, undisputed facts, unchallenged facts, and things like that; whereas

23 on the other hand it is not willing and does not wish or, rather, is

24 ignoring the possibility of taking a realistic stock of the state of

25 affairs in those trials, and in this trial in particular.

Page 545

1 For example, in this particular trial, all six accused or, rather,

2 the time-span of the indictment and the events taking place in the

3 indictment from 1991, from the Dayton Accords -- up to the Dayton Accords

4 in 1994. The Washington Agreement in 1994, I meant, yes. This -- and it

5 is stated that the conflict between the Bosnian and Herzegovinian Muslims

6 and the Bosnia-Herzegovinian Croats, in fact, starts -- that is the

7 construction of the joint criminal enterprise effectively control and so

8 on, starts with 1991.

9 Now, in the trials that I mentioned a moment ago, it was

10 established, although the limits were not clearly defined, when you enter

11 into the details of the judgements it was established in Blaskic, in

12 Kordic, in Kupreskic, in all those trials, in Naletelic, perhaps I have

13 omitted to mention some trial, it was established that this conflict, this

14 conflict, which is backbone of this indictment, the Muslim-Croat conflict

15 in Bosnia, is in fact the year 1993. So of those three calendar years

16 contained in the indictment, the Prosecution, of course, is going to refer

17 back to the other cases, those that suit him, that we should actually deal

18 with 1993 alone. That's the only pertinent year.

19 Now, Your Honour, from the standpoint of the Defence, if the

20 Prosecution in this trial and before this Trial Chamber presents the fact

21 that our accused were in fact in some criminal domain already in 1991, at

22 least in the sense of mens rea and in the sense of creating plans in 1991

23 and through 1992 for them -- for a conflict to have taken place in 1993, I

24 have to defend that case. First of all, I have to defend the fact that

25 without joint criminal -- joint criminal enterprise, I have to return to

Page 546

1 mens rea. I have to return to 1991 because the Prosecutor is beginning

2 his story from 1991 and especially because of joint criminal enterprise

3 and responsibility, I have to go back to 1991, deal with the whole of 1992

4 to look at the conflict in 1993 when the material events are charged and

5 deal with actus reus. So I have to deal with that whole issue.

6 What I want to say by quoting that example is that if the

7 Prosecutor has provided us with that kind of framework, then the Defence

8 has to respond to that kind of framework otherwise it will be incompetent

9 or it won't be doing its job properly, and the result of that will be a

10 trial that isn't fair and isn't just. So in one way or another, it is the

11 position of the Prosecution that this is not their problem and that this

12 trial must last as long as the minimum time that you have calculated for

13 it, and I have to say, Your Honour, with all due respect that I seem to

14 feel that in your assessments and arithmetic you were very optimistic,

15 quite obviously there is something amiss here, because the duration of

16 this trial, regardless of all the measures that can be taken, can be

17 availed of, deter -- is determined by the length of the indictment and the

18 contents of the indictment and that is not the fault -- if I can use the

19 word fault, it's not the fault of the Trial Chamber. That is to say that

20 the accused and that the Defence cases will step outside the time span of

21 the Security Council, but the problem is that the indictment was raised in

22 such a manner from the very beginning that quite obviously that calendar

23 and the amount of time given to it will not be sufficient for the trials

24 to be completed. It is up to the Trial Chamber and the Court to determine

25 what is more important, what is higher up on the list of priorities,

Page 547

1 whether closing strategy imposed by the founders of the Tribunal or a fair

2 and just trial imposed by the needs to hold a trial and to hold legal

3 proceedings in the first place.

4 Thank you, Your Honour.

5 JUDGE ANTONETTI: [Interpretation] I shall give you the floor, but

6 for a few minutes only.

7 MS. ALABURIC: [Interpretation] Thank you. Now, as I have always

8 presented my position, I just need six sentences Your Honour and the first

9 of them is this: These legal proceedings started in April 2004 when the

10 indictment was raised. In view of everything that has been said in the

11 courtroom so far it would emerge that the trial will not be completed by

12 the end of 2008 in conformity with the UN Security Council Resolution. So

13 I don't think that any further deliberations as to who would be to blame

14 for this for us finishing the trial on -- on time or not are not bearing

15 fruit. I think that it is -- a fundamental problem for these proceedings

16 in this courtroom is the concept of the Defence cases and the concept of

17 the defence and that is through a rationalisation of time, and I'm not

18 going to stipulate all the forms of responsibility and accountability of

19 our accused in this trial, but it is important because every fact,

20 absolutely every fact from the so-called crime base refers to the events

21 and acts committed by our accused, and that kind of indictment determines

22 the Defence case. Therefore, you cannot accept the Defence teams to be

23 cooperative in the way in which the Prosecution would expect them to be,

24 because any cooperativeness in this -- along those lines would go to the

25 detriment of our clients.

Page 548

1 Furthermore, the Court cannot satisfy the demands of the

2 Prosecution that most of the crime base facts be solved by the -- by

3 written motions and written evidence, because that would mean acts on the

4 part of the accused and the Rules do not allow for this type of

5 presentation of evidence.

6 Now, a solution is to amend the indictment. I don't want to bring

7 that question up again, but let me just give you an example. On the 16th

8 of November, we had an amended indictment. In another trial before this

9 same Tribunal, one of the forms of accountability and what our accused are

10 charged with. I'm going to say this in English because it's easier for me

11 to do so, aiding and abetting in a joint criminal enterprise. And 16 days

12 prior to that on the 1st of November, 2005, in the Cermak Markac case, the

13 indictment -- the Prosecution deleted from the indictment charges and

14 provisions related to the aiding and abetting and joint criminal

15 enterprise. Thank you.

16 JUDGE ANTONETTI: [Interpretation] Thank you.

17 MR. JONJIC: [Interpretation] Your Honour, I fully comply with what

18 my colleagues have said. I don't want to waste any more of your time but

19 just one sentence from me. Is seems that it is quite obvious that there

20 are just two ways in which the duration of this trial can be shortened.

21 One is to reduce the indictment and the second is possibly to sever the

22 trials. The accused Valentin Coric, the Defence did put in a motion to

23 that effect, to have severance, whereas it was rejected by the Trial

24 Chamber. Thank you.

25 MR. IBRISIMOVIC: [Interpretation] Thank you, Your Honour. I don't

Page 549

1 want to repeat what my colleagues before me have already stated. I think

2 Mr. Karnavas put it all before you very nicely. Of course it is in the

3 interests of the Defence teams to have speedy and efficacious trial.

4 However, that can be at the detriment of a fair and just trial, and at the

5 detriment of our clients. I'm just afraid of one thing that might crop up

6 during this trial if we were to limit the duration, and this is true for

7 the Prosecution as well, that the Defence and the Prosecution would work

8 under a certain amount of pressure, and I'd like to compare it to a game

9 of chess. If you have time pressure, you can make moves that are very

10 often not reasonable and can be detrimental to your defence. Thank you,

11 Your Honour. Thank you.

12 JUDGE ANTONETTI: [Interpretation] I shall give the floor back to

13 Mr. Scott. I should like to thank all the Defence counsel for having

14 assessed the situation and provided their personal viewpoint. Mr. Scott

15 were certainly respond to some of these.

16 MR. SCOTT: Thank you, Your Honour. I'll be very short. The

17 Defence took a total of 39 minutes to make their various responses and so

18 far I've used 7 minutes, but I will just use, if I can, about three more

19 minutes.

20 Your Honour, if you listened well over the last few minutes, you

21 ever heard each Defence team say that they are not interested in working

22 efficiently. They are not interested in working creatively. They are not

23 interested in doing anything to make this case work more properly or more

24 efficiently. In fact Mr. Karnavas said it quite explicitly. His goal is

25 to make it as difficult as possible for the Prosecution to present its

Page 550

1 case.

2 We raise the issue of Rule 65 ter (F) before and I do want to

3 spend 30 seconds more on it. What the Rule requires is that when the

4 Defence filed their pre-trial brief in response to the Prosecution brief

5 that they set out the following: 1, in general terms the nature of the

6 accused's defence; number 2, the matters with which the accused takes

7 issue in the Prosecutor's pre-trial brief; and, 3, in the case of each

8 such matter, the reason why the accused takes issue with it.

9 Now, of course the Defence don't want to do that, and let's -- as

10 Mr. Karnavas says let's be very transparent. We're all adults in this

11 courtroom. What the Defence hope, Your Honour, is by stretching out this

12 case, by making it as -- as Mr. Karnavas says, as making it as difficult

13 as possible for the Prosecution case, at some point you will bring the

14 hammer down and you will make -- you will cut the Prosecution case. Now,

15 what more could any Defence team want? They know if they stretch this

16 case out, if they make it as difficult as possible for us to present our

17 case it will be to the detriment of the Prosecution. That's very easy for

18 anyone to see.

19 So the response is, of course, let's not enforce Rule 65 ter (F)

20 let's certainly not do that. Let's not do anything to try and narrow and

21 identify the bona fide disputed issues. Let's not do that. Let's not do

22 anything to work efficiently. Let's try to make the system work as slowly

23 and as difficult as possible and at the end of the day we'll get the Judge

24 to make the Prosecution cut its case, to make the Prosecution cut its

25 evidence. What more could any Defence team want? Ladies and gentlemen,

Page 551

1 if we just stick to our guns and make -- drag these proceedings out and

2 make it as difficult as possible, the Prosecution will have to give up its

3 case. The Prosecution will have to cut the indictment. The Prosecution

4 will have to call less evidence. What more could any Defence team want?

5 And that is not a fair trial for the Prosecution, for the international

6 community, or for the victims. Thank you.

7 MR. KARNAVAS: Mr. President, if I could just have one moment just

8 to respond.

9 JUDGE ANTONETTI: [In English] Few minutes.

10 MR. KARNAVAS: Few minutes, few minutes. This sort of reminds me

11 of that film, Cool Hand Luke, with Paul Newman, where at the end there is

12 that famous saying, what we have here is a failure of communication. I

13 was speaking English. Mr. Scott is a native English speaker. I don't

14 know how he interpreted or misinterpreted what I had to say. When I said

15 that I had -- it's my job to make it difficult for him to get a

16 conviction, it he thinks that I'm here as the grease on the prosecutorial

17 wheels, so he can come in here, sashay, throw a few pieces of evidence

18 around, and he's going to walk away with my client being in prison for the

19 rest of his life, he's sadly mistaken. This Prosecution and the way that

20 the Prosecution office is set up at the ICTY is classic common law.

21 They're not here for the truth as far as I'm concerned. They're here to

22 get a conviction. The result --

23 MR. SCOTT: I object to that, Your Honour, this is improper.

24 MR. KARNAVAS: He is here -- he is here to get a conviction. If

25 he were for the truth, then why am I getting today this evidence right now

Page 552

1 with respect to one witness, Mr. Donia, that I'm going to have to sift

2 through? Today I finally get the list of five witnesses. They knew well

3 in advance. I could have had that months ago. And they're going to sit

4 here and tell you that they're here to play fair. They're here to be

5 creative, where if this is being creative, well, I have news for them.

6 This is a way of trying to obstruct the Defence. This is a way to prevent

7 me from doing my job, and my job is to make sure that if he gets that

8 conviction he's going to have to work for it. He's going to have to prove

9 that case here. He cannot have an indictment where he just throws

10 everything in, every mode of liability, and say, pick and choose,

11 Your Honour. You figure it out. And for the first time, this Prosecution

12 is faced with a -- with a Pre-Trial Judge who is saying no. You drafted

13 that indictment. You put all those modes of liability. You came up with

14 those 9.000 documents, and by God you tell us where each and every one of

15 those documents fits within the indictment and don't expect the Trial

16 Chamber or the Defence to try to figure it out. And I'm offended by the

17 way the Prosecution seems to think that it's the fault of the Defence.

18 And if it's not the Defence, he blames the Trial Chamber. If the Trial

19 Chamber had only accepted all those adjudicated facts or if all those 92

20 bis statements had come in.

21 They can reduce the indictment. They can make it fairer for

22 everyone. Nothing prevents them from pinpointing exactly what it is they

23 think they can prove. And if they knew what they were going to be able to

24 prove they wouldn't be out there investigating. And I remind the Court

25 that this Prosecution is not the same as a Prosecution would be in a civil

Page 553

1 law system. They're not magistrates. They're parties. They're

2 advocates, just like the Defence, and there lies the difference,

3 Your Honour. Thank you.

4 JUDGE ANTONETTI: [Interpretation] Thank you. Let's all calm down.

5 Just a point of detail. You mentioned Rule 65 ter (F). As you know, once

6 the Prosecutor has filed its exhibit in paragraph (E), the charge orders

7 the Prosecution to file a preliminary brief that specifies the -- and the

8 reasons for which they are wanting to challenge it.

9 In general terms the nature of the accused's defence, matters with

10 which the accused takes issue, and the case of each method or reason why

11 the accused takes issue with it. I have looked into the pre-trial brief

12 very carefully, those presented by both parties. I realised that each

13 accused was challenging any form of responsibility and stipulated that

14 from thereon they challenged everything. So it is impossible under those

15 conditions to reach a consensus on any of the facts or any questions of

16 law, because the whole -- everything is challenged.

17 This is not the first time that this occurs in a trial. In a

18 previous trial where Mr. Mundis was on the Prosecution team, Mr. -- the

19 case against Mr. Hadzihasanovic, the Defence team had challenged

20 everything also. So when the Defence challenges everything, then of

21 course it is important for the Prosecution to prove by calling its

22 witnesses and presenting its exhibits everything that is charged in the

23 indictment.

24 Everybody has understood that after this roundtable everybody has

25 spoken openly and freely. I enabled each counsel to clearly state his or

Page 554

1 her position, and it seems clear that the ball is now in the court of the

2 Prosecution. It's for the Prosecution to understand what it is it is

3 wanting to do, how does it intend to proceed over the next few months,

4 over the next few years to present its case. The Defence will also be

5 allowed enough time to present its case. This is why I feel it is

6 important for Madam Carla Del Ponte in person to come and tell us how she

7 thinks this case should be presented.

8 In the history of this Tribunal, this will be a trial involving a

9 great number of accused. In the Kupreskic case, there were very few

10 facts, whereas in this case, this is quite a different story. We are now

11 starting on these trials which involve a great number of accused, and the

12 Prosecution should tell us how much time they need.

13 It is my responsibility to remind you that a Resolution has been

14 passed by the Security Council. A number of issues may arise. And as

15 Madam Prosecutor goes to the Security Council to explain what she is

16 doing, she could come here and tell us how she thinks this case should

17 unfold. It's all very well to travel around Europe and catch fugitives.

18 It is important to have an overall view of the way in which the cases are

19 being presented, particularly in a case where everybody has reminded us

20 here we have approximately 10.000 exhibits and, for the time being, 400

21 witnesses. So maybe we -- things will be clearer after the 12th of April.

22 I would now like to address the other items on the agenda. One

23 item which I indicated to you has to do with the state of health of the

24 accused. I feel that I -- as a Judge, I have a personal responsibility

25 here throughout the trial to bear in mind the state of health of the

Page 555

1 accused. That is the way I understand things.

2 If an accused is affected by some illness or another, I would like

3 the Defence counsels to let me know about this on a confidential basis, ex

4 parte, confidential, whichever way they prefer, and let me know that one

5 or another accused has one or another affliction. If I receive no

6 document or no filing, I will conclude that everybody is in a good state

7 of health. This is what I hope for. But if a problem were to arise I

8 would like you to let me know as soon as possible.

9 I wanted to make sure that this was recorded, to make sure that

10 everybody is informed as they should be. When a trial is that long, it is

11 important to address this particular issue.

12 The other item I would like to raise, which is an important one, I

13 had asked the Defence and the Prosecution, the lawyers, to meet and to

14 address the issue of the length of the cross-examination once the

15 Prosecution will have questioned the -- all of it's witnesses. I don't

16 think that much progress has been made. Nonetheless, I shall give you the

17 floor to both parties, because as I mentioned last time, if the

18 Prosecution questions a witness -- let's me take the case -- or let me

19 refer to the witness list and take the case of Witness 2 viva voce, a live

20 witness, number 2 on the witness list.

21 As far as this witness, Witness 2 is concerned, the Prosecution

22 had planned to question it for an hour and a half, because this witness

23 will testify on points 1, 8, 9, 10, 18, 1, 2, 3, 8, 9, 16, 17, and 22,

24 referring to paragraphs 101 and 108. The Prosecution had planned one and

25 a half hours for this. It's assumed that the witness would come tomorrow.

Page 556

1 What does the Defence do in term of its cross-examination? Does that mean

2 that each Defence counsel will take an hour and a half to cross-examine

3 the witness, or will one Defence counsel act as the lead counsel on behalf

4 of the other counsels, or one or other counsel could intervene if there

5 were ancillary or alternative questions.

6 I think everybody's understood this clearly. When I base my

7 calculation on three months and -- three years and four days, my

8 calculations was based on an equal time for both parties. If it's an hour

9 and a half for this particular witness for the Prosecution, then the

10 Defence also gets an hour and a half. But if each party wants to use this

11 hour and a half, it's not three years that the trial is going to last but

12 18 years. So everybody understands what's at stake here I'm sure. In 18

13 years' time, there is a fair chance that I will no longer be around.

14 So I would like to know whether between the counsels have had an

15 opportunity to exchange their views on this and whether any progress has

16 been made because the lengths of the trial depends on this issue also.

17 Mr. Scott or Mr. Mundis, you have the floor.

18 MR. MUNDIS: Thank you, Your Honour. Regrettably the parties have

19 made no further progress since the last Status Conference on this issue

20 although clearly there have been a number of different pleadings by the

21 parties on the best way to proceed, and I believe that's the most

22 up-to-date information concerning the positions of the various parties.

23 JUDGE ANTONETTI: [Interpretation] Mr. Karnavas.

24 MR. KARNAVAS: Thank you, Mr. President. Aside from the pleadings

25 where I think we're more or less in agreement on the Defence, I can report

Page 557

1 that four team met last night. That was the latest. Unfortunately, two

2 of our -- the two teams -- the other teams were not available. But this

3 issue did come up and we had a fairly lengthy discussion regarding this,

4 all with the understanding that we need to -- we the Defence need to

5 discipline ourselves to make sure that -- that we live within a certain

6 time limit, at the same time represent our respective clients.

7 The end result is as follows and I now repeat what I said earlier,

8 because I echoed in last night, that we should only be asking questions

9 that are relevant to our particular case. Now, if you look at the

10 indictment, you would see that about 90 -- 85 per cent of the case,

11 because of the joint criminal enterprise, affects everyone, and then you

12 have that 15 per cent with respect to the individuals. Some of the

13 witnesses only need to be questioned by one or two of the -- of the

14 accused, because it only affects them.

15 So I think from the Defence stand point, we believe that the best

16 way to approach it is as follows: One, among ourselves we would try prior

17 to coming to court to resolve who would take the lead to what extent, what

18 issues need to be addressed, and to proceed accordingly. I can -- I can

19 assure the Trial Chamber, at least with respect to all the major

20 witnesses, because Dr. Prlic is at the apex of this indictment, in all

21 likelihood I'm going to be required to cross-examine most if not all of

22 the witnesses. But again, I go back to what I stated earlier. Every

23 question should be prefaced with one question in mind: How does this

24 further the case? How is this relevant to the case? If it's not

25 relevant, then it's not necessary. And Obviously we agree among ourselves

Page 558

1 that we should not be repetitive. If an issue has been covered that might

2 affect another accused, there is no sense the other accused standing up

3 and cross-examining. However, there may be an instance where an issue was

4 covered but maybe there is a nuance that needs to be followed up because

5 of the particular defence of another accused. In that instance, it's not

6 repetitive for the other attorney to get up, maybe ask a few prefatory

7 questions, and then zero in on that particular nuance. I think that's the

8 best way to proceed.

9 I do not think that you can possibly come up with some

10 mathematical formula. The Prosecution can get up and put Donia on for one

11 or two hours. I can tell you I need two or three days with the man I'm

12 speaking on a conservative basis. I would say probably twice or three

13 times that amount of time if he's going to stick by what he says.

14 Sometimes you need to beat about the bush a little bit to get the

15 witness to where they're compliant and answer the questions. I'm not

16 saying that's going to be the case with this witness or another witness

17 but it's been my experience that you just can't zero in. Maybe if it's

18 the Trial Chamber asking the question, because you sit much higher than

19 the rest of us and there seems to be a different relationship between the

20 Trial Chamber and the witness, they might be more forthcoming. But

21 sometimes when comes to the lawyers, depending on how the witness may have

22 been coached or the agenda that the witness may have, they're going to be

23 less responsive and that means I have to work a little bit harder. Thank

24 you.

25 JUDGE ANTONETTI: [Interpretation] I believe you spoke on behalf of

Page 559

1 all the Defence lawyers. And as you stated on this point, one thing is

2 obvious. The Defence counsel must meet, and as you said, they must

3 appoint among themselves one or two who are going to cross-examine a

4 witness.

5 Let me make you a few suggestions. As I said, there are three

6 main points in the indictment, the facts alleges to have been committed in

7 the municipalities, the concept of JCE, and individual liability for each

8 of the accused.

9 As regards the facts, let me go back to Witness 2. He's going to

10 say that in his village of Ristani on the 25th of May, 1993, whilst they

11 were in their flat the HVO came and took them away, and the witness is

12 going to tell what happened.

13 Is it really necessary for the cross-examination to go back, for

14 the witness to say exactly what happened. It would be enough for one

15 lawyer to put a question, in principle at least. So I think that when it

16 comes to this type of facts, it is enough for one lead counsel to settle

17 the issue. Of course if somebody has got a wonderful idea whilst a

18 colleague is cross-examining, the lawyer is free to put a question, but

19 you are all excellent professionals, so I believe that the one who is

20 going to cross-examine will be very thorough. So this could be one

21 solution.

22 Two other points that are also very important in my view. JCE -

23 yeah, I'll give you the floor in a second - and individual criminal

24 liability. This is only logical. When the Prosecution is going to

25 address the overall issue of joint criminal enterprise through their

Page 560

1 witnesses, I know that each of you will have their own views on this, and

2 it is only logical that each of you can intervene on this. But

3 thereafter, I don't know how the Prosecution is going to go about it but I

4 were the Prosecution, I know what I would have done. If the Prosecution

5 decide to go to the individual liability of each of the accused, as they

6 did in their submissions, of course it's only logical if they take ten

7 hours for Mr. Prlic, Mr. Prlic's lawyer will have at least ten hours too.

8 The other lawyers will be able to speak if they have to intervene, too, as

9 a result.

10 But this is something to be sorted out among yourselves, Defence

11 teams. As a rule in civil law jurisdictions, lawyers agree among

12 themselves to know who is going to speak first, and I believe this is the

13 same thing in common law systems. So you should also be "creative" to

14 avoid problems, because if you play by the book, we'll be here in 18

15 years' time. All of us. Well, maybe not all of us; some of us, still.

16 Yes, you have the floor.

17 MS. ALABURIC: [Interpretation] Thank you, Your Honour. I wish to

18 clarify just one issue which perhaps can lead to problems in the future,

19 which has to do with the situation where one counsel would on behalf of

20 the others cross-examine. This is not what we agreed on. Each of the

21 accused may have his own concept of defence. Therefore, each Defence team

22 will prepare for cross-examination individually, and we will try to

23 cooperate among ourselves in order to rationalise the use of time. So we

24 agreed on the following: If Mr. Karnavas puts a question that we believe

25 to be relevant and we are satisfied with the answer, we will not put

Page 561

1 additional questions. This is how the Defence teams will be cooperating

2 and rationalising the time.

3 In addition to that, I believe that we need to take into account

4 the relevance of evidence. This is something that we discussed yesterday

5 among Defence teams. In that sense, we can have certain problems,

6 especially when it comes to expert witnesses, because they need to be

7 examined on their expert reports and their testimony in previous cases.

8 We have such examples as expert witnesses in, for example, Milosevic case

9 were examined in direct for 40 minutes and four and a half hours in

10 cross-examination. Therefore, I think we need to be flexible in this

11 regard.

12 MR. KOVACIC: If I may add just two sentences. What my

13 distinguished colleagues Mr. Karnavas and Ms. Alaburic said, it is exactly

14 what we altogether had in mind and I think in that respect we are -- our

15 position is fully justified. The main issue is relevance, and I really

16 don't think that we have to establish some rules which will be controlled

17 by the time. It is relevance. So it well may be there is a witness

18 testifying, for example, two hours, with no questions at all. However,

19 in -- we must foresee the possibility that there will be a possible

20 conflict of Defence's theory. So something which will be relevant for

21 Defence A in crossing the witness will be fine with others but not for

22 somebody else from this Defence, and he perhaps will, or she will have to

23 go towards some other segments of the testimony. So that must be

24 envisaged I believe.

25 And another example that you just mentioned, Witness 2 than kind

Page 562

1 of testimony, and it is quite a typical one and we should expect quite a

2 lot of such testimonies, my question was the whole example which you put,

3 the witness was there, the HVO entered, he was arrested, he was

4 transported, fine. My only question at that time would be, by who? Who

5 addressed you sir? What was the badge on the uniform? That is all what

6 matters. You of course are aware that my client is a soldier, so under 7,

7 1 he was there, no. That -- was he assisting anybody? We should see

8 later. Under seven -- Article 7(3) we have to find whether those are his

9 troops. Under joint criminal enterprise theory, I don't need that

10 witness, of course. So it's -- sometimes it's different.

11 Thank you, Your Honour.

12 MS. NOZICA: [Interpretation] Thank you, Your Honour. I just wish

13 to add one matter in relation to what my colleague said. I would like to

14 kindly ask you to bear in mind that in the course of the proceedings we

15 will definitely use only as much time as the Prosecution uses in direct,

16 at least in relation to majority of the witnesses. Some witnesses, of

17 course, will require more time, and there will certainly be witnesses for

18 whom we will have no questions whatsoever. So we need to assess what is

19 relevant for us, and if we do that, I think that ultimately we will

20 realise that we will not be using more time than the Prosecution.

21 JUDGE ANTONETTI: [Interpretation] There are various types of

22 witnesses. There are expert witnesses. There are victims who will come

23 to testify. There are eyewitnesses who were there because it so happened

24 that they were on that location. There are international witnesses, quite

25 a number of them at that. So for each category of witnesses, the Defence

Page 563

1 teams may have to put different questions depending on the type of

2 testimony. And you are absolutely right to stress this point, and you

3 precisely have the issue of expert witnesses. Those who will come to

4 testify may have to be cross-examined by all Defence teams in a thorough

5 manner, admittedly, but the Defence teams should make a clear distinction

6 between the types of witnesses. That is the criterion that you will have

7 to adjust to.

8 If I mentioned Witness 2, it is because there are many witnesses

9 falling under this category. This witness might stress the fact that he

10 was arrested, transported, detained, possibly abused. It is up for the

11 Prosecution in putting their questions, but if they are focused questions,

12 so it is up for the Prosecution to give the overall picture, and after

13 that the lead Defence counsel will be able to cross-examine the witness.

14 If he doesn't put all the necessary questions, other teams may put them.

15 But trust the Judges to put questions, because as Judges, we will not

16 leave anything in the dark. Even if you don't put the right questions,

17 the Judge is not partial, is not biased, and his only rationale is the

18 need to establish the truth, and he will put all the right questions. So

19 whatever it may be, when a witness comes to testify, comes to the stand,

20 it must be useful. It is not just to please each party that they are

21 called to the stand. It is for the truth to be established. And the

22 ultimate purpose of testimony, of evidence, is that Judges, based on their

23 relevance and their probative value, may draw some conclusions from such

24 testimony. A Prosecution witness or a Defence witness will be called

25 because there is a purpose in calling such a witness. If the purpose is

Page 564

1 defeated, why should that witness be called? And if you have an

2 objective, you must focus on it by putting the right questions.

3 Earlier on, quite rightly so, Mr. Kovacic mentioned 7(1) and 7(3).

4 If Witness 2 was arrested by a soldier, we must know who he was arrested

5 by. The issue of the badge is to be raised, and that is a question to be

6 taken care of by the Prosecution. The Prosecution will have to meet those

7 concerns, failing which the Defence will be free to cross-examine. But be

8 aware that the Judges will not leave any doubt about it. We will step in,

9 in order to obtain this type of information.

10 I do invite you to read the decision issued by the Appeals Chamber

11 a few days ago in the Stakic case, and it is clearly stated that at some

12 point in time there was a problem because there was a grey area around one

13 issue, a question, and the Appeals Chamber said that the Defence and the

14 Judges had to put questions. So please trust the Judges that they will

15 know when to put questions to witnesses.

16 I urge you could keep working on this fundamental issue, and you

17 should very shortly find some way of working.

18 Mr. Mundis.

19 MR. MUNDIS: Thank you, Your Honour. We will take that advice to

20 heart and again try to work with the Defence. But if I could, this issue

21 we specifically asked to be again put on the agenda for the Status

22 Conference today for a more particular reason. There are really two

23 issues involved with how this type of cross-examination proceeds. One of

24 them goes to the 18-year possibility, as Your Honour has aptly identified

25 it. That is, it goes to the overall length of the potential proceedings.

Page 565

1 The other aspects of this problem is a more practical one, and

2 that goes to informing -- for the Prosecution to inform VWS in terms of

3 how to get the witnesses here so that we're not in a situation where we

4 either run out of witnesses are we have witnesses who are waiting for a

5 large number of days and then perhaps have to be sent home and then

6 brought back to The Hague in order to testify.

7 While we certainly can all as professionals appreciate the fact

8 that it is extremely difficult in advance to anticipate how long it might

9 be, and I go back to page 55, lines 2 and 3 where, Mr. Karnavas said, "I

10 do not that I that you can possibly come up with some mathematical

11 formula," the Prosecution does believe, Your Honour, that we must have

12 some kind of rough mathematical formula as a default in order for us to

13 plan to bring the witnesses here. And a couple of examples can easily, I

14 believe, illustrate the situation.

15 We have previously indicated that we will be commencing our case

16 with a number of senior-type witnesses, international witnesses, witnesses

17 that are not the crime base witnesses, Rule 65 ter estimates tend to be on

18 the longer side rather than the one and a half hour witness we discussed a

19 few moments ago. These tend to be witnesses who will be in the box on the

20 Prosecution's side for four hours, five hours, circumstances hours, eight

21 hours even, and so the problem there becomes, Mr. President, when we put

22 the witness on the box knowing that we will take more than one day for the

23 direct examination, will the Defence be entitled one or one and a half

24 days? Will they be entitled three days in total for all of them? Will

25 they be entitled to six days, seven days? Because if we start on a Monday

Page 566

1 with a one-day witness, do I need to have the witness here for Wednesday,

2 for Thursday, for next week, for two weeks from now?

3 These are the practical implications of at least having some kind

4 of a default; i.e., the Defence in total gets two to one or three to one

5 or one to one or five to one so that I can then tell VWS, "I need the next

6 witness here three days from now or next Monday or two and a half weeks

7 from now." Otherwise we'll be in the situation where we stand up and say

8 we're out of witnesses for the week, unfortunately, or alternatively we

9 will face I mention pressure from the registry after a witness has been

10 waiting here for five or six days to send the witness home because it now

11 appears that it they won't be testifying for four or five additional

12 days. So those are the more practical aspects leaving aside the 18-year

13 problem, the more practical action of why we need some kind of guidance

14 from Your Honour so that we can move the trial as efficiently as possible.

15 JUDGE ANTONETTI: [Interpretation] Mr. Mundis, you set it out

16 perfectly. You really articulated the problem as it is because you have

17 time for the examination-in-chief but you also have to take care of the

18 time when witnesses come. It has to be planned and it's far from being

19 easy. You have perfectly identified the issue and you said that if you

20 have your international witness, if you examine him for eight hours or

21 four hours, I need to know how much time will be granted to the Defence

22 for their cross-examination to know which will be the next witness. You

23 were very clear in defining the problem.

24 For the time being, I am not able to tell you here and now what

25 the final position will be, and I'll tell you why. Because by the 14th of

Page 567

1 April, I should have your comprehensive document showing the link between

2 the documents, the witnesses, and the facts. By way of an example, I go

3 back to Witness 2. You have scheduled an hour and a half. In your

4 submissions, you were very clear. You have taken up what I'd asked for in

5 my order, the name of the witness, the summary of his testimony, the

6 counts in the indictment, and the paragraphs. The time you would need

7 would be an hour and a half. But when the witness comes to the stand, I

8 still don't know which are the documents you're going to introduce through

9 him. This has to do with alleged events in the village of Ristani. Two

10 people were killed as well. Are you going to introduce documents or not?

11 So I could show you this witness after witness. You were

12 requested to do some work which would help us progress. You might not

13 have any documents for certain witnesses, but regarding others you might

14 have a lot of them, obviously.

15 So will the Defence teams need time to cross-examine witnesses on

16 documents? I mean, as I said, you are excellent professionals on both

17 sides of the wells, and you know in both types of cases the documents may

18 be the most important part. Witnesses -- witness testimony, that's one

19 thing, but it's always a relevant thing. Whereas a document is quite --

20 has got an important weight. And if a Defence lawyer does their work,

21 well, they're going to focus on documents as well, especially when we have

22 to do with military operations, with orders and the knowledge thereof. So

23 there's going to be some discussion around documents, and this, too, may

24 require a lot of time.

25 I do hope that in the same way as I did, the Defence lawyers have

Page 568

1 long been busy with the 10.000 documents they have received, and I do hope

2 that they did what I did, that they watched the video footage, because if

3 you failed to do so, you're going to be prejudiced.

4 Now, to answer your question, I'll tell you what I need and what I

5 asked you to provide me with. I wanted to have an idea of the witnesses

6 you intended to call for the next two months. From what I understood,

7 your first witness will be Donia, expert witness Donia. That so? He's

8 going to be your first witness; is that right?

9 Mr. Scott.

10 MR. SCOTT: Your Honour, yes. Thank you. If I could just have a

11 moment, please. If we could go into private session, Your Honours,

12 because some of these witnesses may seek protective measures.

13 JUDGE ANTONETTI: [Interpretation] Let's move into private session,

14 please.

15 [Private session]

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 569











11 Pages 569-572 redacted. Private session.















Page 573

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 [Open session]

19 THE REGISTRAR: We are in open session, Your Honour.

20 JUDGE ANTONETTI: [Interpretation] So in open [as interpreted]

21 session, the Prosecution has told us that a list of witnesses has been

22 handed over to the Defence. This will be communicated to the Chamber as

23 of the 14th of April onwards, as stipulated in the order the calling of

24 these witnesses has -- the calling of this witness has been done in a

25 logical order in order to enable the Bench to have a fair understanding of

Page 574

1 the case. So this I have noted. But this, nonetheless, does not settle

2 the question of the lengths of all of this.

3 Now, as far as the length is concerned, I am handicapped by the

4 fact that I do not have the other two Judges by my side to discuss it.

5 We -- these two Judges will only step in two weeks before the commencement

6 of trial. So as you can understand, I face this difficulty. I have a

7 point of view, but they might have another point of view. So I cannot

8 vouch for their point of view whatever the case may be.

9 For the time being, you have given us an estimated time for the

10 witness testimony of these witnesses in your submissions. So the only

11 unanswered question is -- relates to the first witness. How much time

12 will the Defence need to cross-examine this first witness?

13 Generally speaking, in all the trials so far in this kind of case,

14 the Defence has as much time as the Prosecution. The only difference lies

15 in the fact that the Prosecution -- the only difference is there are six

16 Defence counsel in compared to the Prosecution. In the case of the first

17 witness, the witness is a victim. Maybe the Defence counsels will agree

18 to -- and see which of the Defence counsel shall cross-examine the

19 witness. I think we should evolve with a degree of flexibility and then

20 we can make the necessary corrections as we go along.

21 As far as the first witness is concerned, the answer I would

22 provide would be this - I haven't had time to look into this, but what --

23 how much time had you allotted for the first witness? Was it an hour and

24 a half, two hours, or three hours? Two hours?

25 MR. SCOTT: Sorry, Your Honour, I didn't have that.

Page 575

1 JUDGE ANTONETTI: [Interpretation] Two and a half hours?

2 MR. SCOTT: Yes, Your Honour. On the 65 ter list it should

3 indicate that and that's the number we would be guided by at this point.

4 JUDGE ANTONETTI: [Interpretation] So well. So if you have planned

5 to hear this witness for two and a half hours, the Defence should also be

6 entitled to two and a half hours. So if you could sort that out between

7 you and tell us who the lead counsel will be, which lead counsel will be

8 cross-examining this witness, and then we'll proceed on a case-by-case

9 basis, because I cannot settle this issue right now given the fact that

10 this question hinges on the length of the trial. Is this going to take

11 two years, three years, 18 years? I don't know. It's Mrs. Carla Del

12 Ponte's responsibility to tell us what the case might be, yeah. It's for

13 her to answer that question.

14 So we will have an opportunity to get back to this, but I think

15 Mr. Karnavas is eager to take the floor. You have the floor,

16 Mr. Karnavas.

17 MR. KARNAVAS: Just a couple of points, Your Honour. First with

18 respect to the first witness, I note that there are two different first

19 names for this particular witness with two different dates of birth. I

20 assume that the Prosecution will tell us whether they're the same person

21 or whether they're two different persons. I don't want to mention their

22 name, but I can bring that up to their attention.

23 With respect to the fourth witness they indicated, I wish to note

24 that -- I guess that's 116 on the 65 ter list. It was only -- this was

25 last week that we received that and we only have one video clip with

Page 576

1 respect to this particular witness. We don't have any other disclosure

2 material with respect to this witness.

3 I mention this only because if we're to make some kind of

4 prediction of how long it will take for us to cross-examine a particular

5 witness, we need to know in advance, and this is something that we should

6 have had, I dare say, months ago, all of the disclosure material with the

7 particular witness.

8 One last point, because the Prosecution noted, you know, how

9 magnanimous they were that 14 days in advance they provided us with five

10 different names, and that just last week or beginning of this week they

11 gave us two other names that are on the list. They then go on to say that

12 they have a set and logical plan. They've been working on it for a long

13 time. I recall back in November or December when we had one of our Status

14 Conferences, Mr. President, you indicated that you wanted the Prosecution

15 to present their case in a logical fashion where you're dealing with

16 subject matters.

17 When you look at what we're being presented, it's more like a

18 Hollywood production, to start with. If we were in front of a jury, I can

19 understand the very drama of having a video clip and having a victim, and

20 I don't want to minimise. There were victims on all sides in this war,

21 and I would say that all sides behaved poorly on many different

22 occasions. But that's what we have here. And then we have sort of what I

23 would call a ratatouille approach of presenting the case. You have four

24 different witnesses that are going to be all over the place, not

25 necessarily in any particular way of presenting a coherent block or group

Page 577

1 of a subject matter, as was requested.

2 Again, I just note this because if the Prosecution is going to

3 stand up and continually attack the Defence and try to show how

4 magnanimous they are, let's be honest. They were told to present their

5 case in a particular fashion. They're not doing that. It's their case.

6 They can present it however they wish. But on the other hand, the more

7 complex the way they put it, the more time it's going to need for us to

8 figure out where they're going and how to approach it. That's number one.

9 And number two, I do think that if they have been making this set

10 and logical plan for months in advance, they should have already the

11 blocks, the subject matters in an order in which they want to present it

12 more or less so they can give us sort of an outline of the subject matters

13 and the witnesses so at least we would know that for this group of people,

14 for this subject matter we don't have to worry until maybe next year.

15 That is only fair, because after all as Mr. Scott proudly

16 pronounced that he knows the case -- or the Prosecution knows their case

17 more than anyone else, and they should. It's their case. So why not be a

18 lit bit more trance parent. If they're really after the truth and they

19 really want to be fair to the accused, that's the way to go about it. And

20 also it's fair to the Trial Chamber because you have to participate in the

21 questioning process, as your two other colleagues, and it gives you an

22 opportunity to know where to focus on -- early on so we can all be more

23 efficient.

24 That's all, Your Honour.

25 JUDGE ANTONETTI: [Interpretation] Mr. Kovacic.

Page 578

1 MR. KOVACIC: Thank you very much. Just two or three words. In

2 preparing for those witnesses which now we are being informed de jure that

3 it might be this one that is the first one or second. Anyway we know

4 where the priorities are, we are of course parallelly or at the same time

5 doing on disclosures kindly provided to us by the Prosecution office.

6 Well, there is a Rule 68 which is quite oftenly, regrettably

7 mentioned in the courtrooms as well, and my submission is that the Rule 68

8 material in a bigger part should have been disclosed before many, many

9 months. Sadly, it is not yet.

10 On 16 March, which is what, three weeks from today, or two weeks,

11 we received a letter from the Prosecution informing us that there are new

12 disclosures put on this EDS system, electronic network, and we checked

13 that and there are really two -- two new folders, and just for the record,

14 Your Honour, one of those two folders is Rule 68, so it is obviously very,

15 very late disclosed to us, which contains as the Prosecution said 96

16 documents. And it is not quite disturbing to hear 96 documents. We're

17 dealing with thousands, so 100 here or there, no big deal. However, when

18 you open those electronic files, then you find that you are actually

19 dealing with 391 files. And depending on which -- which kind of files

20 those are, because they're all image files, it is altogether with other --

21 with other folder which is Rule 66 material, by the way, it's all together

22 not more than 5.100 pages. So you know, it's not one afternoon, two

23 afternoon or something like that, it is couple of days of work of quite a

24 considerable part of the team.

25 Beside, in the same -- by the same letter dated 16 March, the

Page 579

1 Prosecution is advising us that in addition they would send us material on

2 DVD. Those consisting -- consisted of either audio or video files, and

3 those are, as much as I checked, and I checked quite -- but not all, are

4 mostly actually substitutes for translation on the language that the

5 accused understands, however, not provided in the paper form. Rather, it

6 is on audio and video.

7 There is -- I will not go into -- into the details, but those

8 DVDs, one of them again is again Rule 68. There are 16 audio files. The

9 other ones are 66 -- Rule 66 with 27, 14, 14, 25, et cetera, et cetera.

10 So in other words, the accused is obviously entitled to receive

11 the material on the language he understands. We are aware of the

12 problems, technical problems of the Prosecution that sometimes, but that

13 is an exception, there should be exception, they are not able to provide a

14 written translation. So instead they are supplying us with -- they are

15 giving us a video or audio material. So you can imagine, Your Honour.

16 The witness is interviewed by the Prosecution's investigators, usually

17 full day, sometimes two days, sometimes three days. So instead having

18 that material typed down on Croatian for my client and he can read it in

19 couple of hours and I can read it in couple of hours, even so I would --

20 I'm reading the English one, English text, he would need exactly the same

21 amount of time as it was needed for original interview.

22 So if we do some mathematics, I would say that only for this

23 particular case, only for those couple of videos and audio material, my

24 client should stay in Zagreb or Scheveningen, it doesn't matter, for the

25 next two or three months working every day eight hours only in order to

Page 580

1 hear what some witness said during the interview.

2 Again, I will not complain if here or there because of error or

3 omission we are all working with thousands and thousands and thousands of

4 documents the Prosecution failed to produce a translation at the due time.

5 So instead they will give me video. No problem. We'll be happy to

6 accommodate. However, if that is the practice, and by the way this is not

7 the first time but I will not elaborate any further because I have -- do

8 not have all data with me, but this one I took, then our time is wasted.

9 We cannot do what we have to do.

10 I need my client in preparing, for example, pre-trial brief. He

11 is has the information. He was there, not I. I know something, some

12 details. I read some documents. I heard some witnesses, potential

13 witnesses. I learned something about. But he was there, and I'm not

14 ready to state the facts without having input from my client. Why?

15 Because the Prosecution sees an opportunity here. Let's keep the client

16 in the dark or at least delay him for a couple of months.

17 So I'm not able to discuss -- now I'm coming to the point. I'm

18 not able to discuss some of those witnesses some of those because the --

19 my client haven't yet read the translation, or I have of course

20 alternative, first to spend one or two of my staff which is very poor and

21 restricted, you know the policy of the registry, to translate for the

22 client and then I can talk about him and see whether those witnesses are

23 really important for me. And then I can tell you, Your Honour, I will

24 have ten documents for that witness. I will need to cross him on that or

25 that, and I believe it will be one hour or ten hours.

Page 581

1 So we are kept in the dark, Your Honour, as much as possible and

2 as long as possible. And this is the clear example. The Prosecution is

3 giving the one which my colleague Karnavas showed one hour earlier with

4 audiotapes we received today, the one which you inform you which was given

5 to us by Prosecution letter 16 March, et cetera, et cetera.

6 So unfortunately we will see. I'm not talking on behalf of other

7 colleagues. I have to wait and see which witness will actually come, what

8 the witness will actually say or not, and what I got before that in order

9 to go into the details.

10 Thank you, Your Honour.

11 JUDGE ANTONETTI: [Interpretation] As -- as far as what you have

12 both said -- from what I understood after listening to Mr. Scott, the

13 first witnesses to be called are some kind of a patchwork aimed at

14 illustrating the entire case. Mr. Karnavas talked about a Hollywood

15 production. Sometimes, you know, they are of very high quality, those

16 Hollywood productions. So let's wait and see how that patchwork pans out.

17 Normally it should be connected to the oral evidence of the case when the

18 trial begins. So if I understand properly, in their presentation the

19 Prosecution is going to articulate the reasoning of the entire case, its

20 logics, and then we will have the illustration thereof through witnesses.

21 Only after will they sort of stick to this logics with the witness --

22 witnesses coming. That's the way I understood things.

23 Mr. Kovacic, you said it was differ to use electronic

24 communication. I fully agree with you, and this is why you're here today.

25 I realised the problem. I realised that Mr. Praljak was representing

Page 582

1 himself, did not have any lawyers, and he was receiving exhibits

2 electronically. So he had a problem with documents that were not

3 translated into his language. That was a real problem. To arrive at a

4 solution we had to have lawyers appointed to him very quickly. That is

5 how you came to be here, the two of you.

6 It's true that some documents are in English when they are

7 transmitted electronically. The idea is that lawyers know both English

8 and B/C/S, and they are able to communicate with their respective clients.

9 But what about the numerous video material? Indeed, some of it is not

10 translated. Further to my request, I received the CD-ROMs and I started

11 viewing them. I noticed that and lot of the reports had not been

12 translated. Some had been. Some others had not. So I immediately wanted

13 to know when the Prosecutor was planning to introduce this video material.

14 There are two ways of going about it, the way we used in the

15 Hadzihasanovic case and the usual way. In the Hadzihasanovic case we took

16 several days to view the video material. Everybody saw them in court, the

17 various excerpts, and then the lawyers could challenge the reliability of

18 the video material and then we ruled on their admissibility. That's one

19 possible technique.

20 There is another one. Based on the witness list and the exhibit

21 list, video material can be introduced. Let's take a simple case, Mostar.

22 We have a lot of video footage, a great deal of video footage on Mostar.

23 The Prosecution could call a witness from Mostar, put a few questions to

24 that witness and straight away say, "I seek to introduce this video

25 footage." It is broadcast, and the Prosecution continues questioning the

Page 583

1 witness. "Did you see this? Were you on the spot?" They seek to

2 introduce that video evidence.

3 But it all depends on the list that I requested of the

4 Prosecution, but based on the witness we should have the documents as

5 well. But even if you do not have this, even if you do not understand the

6 language that is spoken to, do the same as I did, view the video material,

7 listen, and you can use it later in cross-examination. Because when we

8 are shown the video material, you will not have the translation in the

9 language of the accused. It's quite likely. But you know that when there

10 is a video footage that is broadcast it is being interpreted by our

11 interpreters, so it can be heard by the accused in their mother tongue.

12 Of course we've got an interview with Mr. Praljak for over an

13 hour. He speaks in his own native tongue, so there will be no problem for

14 him, but there are other excerpts where you have a Spanish comment because

15 the TVE journalists. I may understand Spanish, you may not. See we will

16 have to have translation into B/C/S and English of the commentary in

17 Spanish.

18 So with regard to video material, I do urge the Prosecution to

19 carry out a thorough check reminding them that sometimes when you call --

20 when you start the video excerpt you have the impression that this

21 concerned a certain time period and then you realise that it's much

22 longer. There is something happening in the snow. And then you saw it's

23 the middle of the summer but it's the same footage. Something must have

24 happened there. See, nothing escapes me. You just need to know that.

25 So the onus is on the Prosecution to determine how they will

Page 584

1 introduce the video material. You have two possibilities. You show the

2 footage to everybody during one or several hearings, or you seek to

3 introduce that material witness by witness. You will decide on the

4 case-by-case basis. I've got nothing to say about it.

5 Anyway, when the Defence will start their case, if they have video

6 material they will decide on the way to proceed.

7 The time has come for a break. We'll have a break and then we'll

8 tackle a few more subjects. We won't be able to deal with all of them.

9 We'll start again at ten to one.

10 --- Recess taken at 12.29 p.m.

11 --- On resuming at 12.52 p.m.

12 JUDGE ANTONETTI: [Interpretation] The hearing is resumed for the

13 last hour. We're going to try and speed up.

14 First of all, following the questions put by the Prosecution as to

15 the scheduling of their witnesses, one fundamental issue has been raised

16 but we'll move into private session.

17 [Private session]

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Page 595

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21 [Open session]

22 THE REGISTRAR: We are in open session, Your Honour.

23 JUDGE ANTONETTI: [Interpretation] We are in open session. I would

24 like to address the question of expert witnesses. For the time being, I

25 have been provided with a chart and a list of ten expert witnesses. 19

Page 596

1 says the military expert, the 27 is a financial expert, number 60 is a

2 historical witness, Mr. Donia, for whom we've received a report. Number

3 74 is a handwriting expert, 157 is a historian, 185 is a military expert,

4 218 is a historical expert, 222 is a demographer, and 226 is a historical

5 witness, and 233 --

6 THE INTERPRETER: The interpreter didn't hear the name of the last

7 witness.

8 JUDGE ANTONETTI: [Interpretation] Also we have three other 92 bis

9 witnesses. We don't know in which category this witness fits. Is he viva

10 voce or is he a 92 bis witness. Also we have two legal experts that come

11 under the 92 bis witness list so we have several historical witnesses

12 here. Is that necessary? Would one historical witness not be enough?

13 Why do we have so many historical witnesses?

14 Second point, we have and handwriting expert. If we have a

15 handwriting expert, this means that you feel that some documents have been

16 challenged. A handwriting expert will come along to say that this is

17 Mr. Praljak's signature. This is Mr. Prlic's signature. But maybe none

18 of this is challenged. So I don't know if whether it's really useful to

19 call a handwriting expert unless you have a very clear idea about this

20 which I'm not informed about.

21 Now, as far as the military expert is concerned, I don't know what

22 kind of witness this is. Is he going to talk about angles of shooting or

23 firearms or snipers? I'm not quite sure. Firing angles.

24 Also, we have a demographer. Is this a real issue? We know that

25 in the various municipalities the ethnic composition was different. Is it

Page 597

1 useful to look into this in too more detail, particularly in the event

2 that the Defence has no particular comments to make about this. Is it

3 necessary to call a demographer?

4 Now, let me turn to Mr. Donia's report now. We have all received

5 this report. The first thing I'd like to say is that I would have liked

6 to see footnotes on this report. I would have preferred the reference

7 number to refer to -- not to the ERN numbers but your exhibit list

8 numbers. It would have made my life easier. It makes it easier to follow

9 because an ERN number is a lot more complicated to locate. For instance

10 on page 40 in the footnote it is stipulated B/C/S 004498892. Would have

11 been easier just to give us a number which is already on your list.

12 So much for some of the comments I wanted to make. Theoretically,

13 pursuant to Article 94 bis, the Defence reads the report and has one month

14 to respond to it. So we do have a date problem here, because it takes a

15 month for the report to be provided. If the report -- the report, of

16 course, has to be handed over before the witness is called to testify.

17 The Defence can perhaps tell us what kind of difficulties it come

18 up against in a case like this. I have looked at this report. No major

19 difficulty will arise, perhaps, but -- cross-examination might suffice,

20 but I don't know what the position of the Prosecution and the Defence is.

21 Now, as far as expert witnesses are concerned, could you shed some

22 light on all of this, please?

23 MR. SCOTT: Your Honour, as -- I don't have the numbers. Your

24 Honour very -- very efficiently had the number of the witness and you were

25 referring to -- I don't have those readily available to me in a prepared

Page 598

1 form. So just to avoid possibly saying something, could we go to private

2 session, please?

3 JUDGE ANTONETTI: [Interpretation] Can we move into private

4 session, please.

5 [Private session]

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Page 599

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23 [Open session]

24 THE REGISTRAR: We're now in open session, Your Honour.

25 MR. KARNAVAS: Thank you. With respect to Dr. Donia's report, if

Page 600

1 you -- if that's what you want to call it, I choose not to, it's not an

2 expert report. The first thing I notice that it had some footnotes, more

3 than the one than he had in the previous case where he didn't have any,

4 and it's rather shocking and appalling for someone who is an academic or a

5 supposed academic from a very good institution holding a Ph.D. in history

6 over a period of time for which is not relevant to the indictment.

7 I don't find this report to be a report. It covers some issues.

8 I think the title of it says -- I can't recall exactly, but it -- it

9 doesn't cover the entire period. It just covers some of the issues or

10 some of the periods. There are some periods that are in this document

11 that are not relevant to the issues at hand.

12 At one of the 65 ter meetings, Mr. Scott said that he bet the

13 Defence would be raising issues dating back to the 1500s. Well, and I

14 made it clear that I had no intentions of going back that far or even

15 further.

16 I want to stick to the period of the indictment. 1991, 1994.

17 Now, we can go back a few years, but I don't see the need to be going back

18 into the Middle Ages or even before that.

19 So we challenge that report or that document. I will be -- I'm

20 willing to file something to say exactly what it is that I challenge.

21 There are some things that I find troubling. Some of his conclusions. He

22 makes sweeping generalisations and statements without making references,

23 and then when he does make references, he's quoting newspapers in many

24 instances. So how can a newspaper where you have during the period of a

25 wartime or a turbulent period where newspapers are notoriously connected

Page 601

1 to one political party or one nation or another, how can you rely on that

2 as authority upon which you're going to draw a conclusion as an academic

3 from which then you're going to ask the Court to buy in to make a

4 reasonable conclusion from.

5 So we do challenge that report, and I don't think it should be

6 admitted at all. Dr. Donia can come in here and he can defend himself.

7 He can present whatever it is he wants to present. He's testified on

8 numerous occasions on all sides, and he can do so, but that is not a

9 report, Your Honour, and I might want to add, and I'm sure this will come

10 out on the record during the trial, that he was a hired gun by the

11 Prosecution. He was an employee of the Prosecution. He wasn't some

12 expert that they hired independently, but he was an employee as an

13 analyst, and now they turn him into an expert much as the other gentleman

14 that was referred to by the Prosecutor. And we make that distinction

15 between being someone who is being very partisan, very subjective, being

16 very prosecutorial minded with the result -- and result-oriented versus an

17 independent expert who may disagree with others on the way they view

18 certain matters and they make certain analysis, but Dr. Donia and the

19 other gentlemen are certainly not experts. They're Prosecution employees,

20 former albeit, but nonetheless they're employees. And it's no different

21 than having, sort of, one of the Prosecutors testifying over here in the

22 case. Thank you.

23 JUDGE ANTONETTI: [Interpretation] I believe that you all are

24 on the same wavelength. I just 15 minutes left, so we have to save

25 time.

Page 602

1 MS. NOZICA: [Interpretation] Something not in relation to this but

2 in relation to another very important matter that you raised and to which

3 the Prosecution did not reply and that has to do with the footnote number

4 of the Prosecutor's brief. I think that your suggestion concerning that

5 number and definition of that number is very important for the Defence.

6 JUDGE ANTONETTI: [Interpretation] Indeed regarding footnotes both

7 for the Prosecution brief and the expert report. The Prosecution now have

8 a list of exhibits. Could they in their pre-trial brief adapt that idea

9 to make references to the list and not to ERN numbers? It would be so

10 much easier. It shouldn't be too complicated, especially given the

11 resources you have at your disposal. It should be easy for you to do the

12 work and convey to me a pre-trial brief that would give references to the

13 exhibit list. As to your expert, be they paid by the OTP or not, you

14 could ask them to do the work.

15 Regarding this expert, I do not have his resume. I don't know who

16 Mr. Donia is, in fact. The Defence will have to give me a reply by the

17 13th of April regarding this report. I can see that you want it not to be

18 admitted and you want the witness to come to testify.

19 We are still in private session -- oh, no, we're not in private

20 session. Let's move back into private session.

21 [Private session]

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10 [Open session]

11 THE REGISTRAR: We're now in open session, Your Honour.

12 JUDGE ANTONETTI: [Interpretation] So in open session let me say

13 that this hearing, this Status Conference is now coming to an end. The

14 next Status Conference will be held on the 12th of April at 9.00 a.m.,

15 unless I'm mistaken, and like today we will have the entire morning to

16 deal with issues that have not been dealt with residual issues. I hope

17 Mrs. Carla Del Ponte will come and tell us how she intends addressing this

18 case pursuant to the security resolution -- to the Resolution passed by

19 the Security Council, because this is a matter of some substance. And

20 then we shall address all the other questions. There are a number of

21 items I was unable to address today like the tendering into evidence of

22 some of the exhibits.

23 We had planned for -- after the 12th of April to have a

24 demonstration of the e-court system, but if we do not have enough time to

25 do this, I will first of all deal with the Status Conference and the

Page 612

1 e-court system is something you could address at another time, some other

2 time.

3 When we did the demo, I asked to have a colour printer. I was

4 told that there would -- a colour printer would be provided, and like in

5 Hollywood, you will have documents that will be printed out in colour.

6 And I also asked to have larger screens, and in an ideal case we would

7 have had a screen like you have in movie theatres in order to show these

8 videos. I was told that I would be provided with a screen, but I don't

9 know how big and large the screen will be. So I don't know what the

10 registry has done about this, but at any rate this -- they're making sure

11 that this trial unfolds in the best way possible.

12 So we shall reconvene again on the 12th of April. The Court

13 stands adjourned.

14 --- Whereupon the Status Conference adjourned

15 at 1.54 p.m.