Tribunal Criminal Tribunal for the Former Yugoslavia

Page 36101

 1                           Wednesday, 28 January 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.15 p.m.

 5             JUDGE ANTONETTI: [Interpretation] Mr. Registrar, kindly call the

 6     case.

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

 8     everyone in and around the courtroom.

 9             This is case number IT-04-74-T, the Prosecutor versus Prlic

10     et al.

11             Thank you, Your Honours.

12             JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar.

13             Today is Wednesday, 28th of January, 2009.  Good afternoon to the

14     accused, the Defence counsel, Mr. Scott, Mr. Stringer, and their case

15     manager, and good afternoon to all the people assisting us.

16             First of all, before moving to the agenda, I'd like to say the

17     following:

18             Yesterday, we ran out of time, and the Trial Chamber noted that

19     Mr. Scott was not given the same amount of time as the time Mr. Khan had

20     to convey his views, so we ran out of time, and at 10 to 7.00, knowing

21     that Ms. Alaburic was to take the floor, I told Mr. Scott that he had

22     five minutes left.  So being short of time, this is the reason why I

23     believe Mr. Scott was not in a position to finish.  If he wishes to

24     finish now, he may proceed.  If he thinks it's not necessary, he can say

25     so.  Please.

Page 36102

 1             MR. SCOTT:  Thank you, Mr. President, Your Honours.  Good

 2     afternoon to each of you.  Good afternoon to all counsel and the accused,

 3     all those in and around the courtroom who are assisting us.

 4             Your Honour, I will have a couple of additional comments.  I

 5     appreciate the Chamber's giving me the opportunity to do that.  I just

 6     note for the record that while I think my comments, in fact, will take

 7     less than five minutes, nonetheless I do want the record to be clear that

 8     in connection with yesterday -- last evening's discussion, that the total

 9     amount of time devoted by the Defence to that issue was approximately 27

10     minutes, according to our time records, and I had taken, as of the time I

11     sat down yesterday, approximately 10 minutes.  So I'd like the record to

12     just simply reflect that accurately.  I think my comments, however, will

13     be brief.

14             As I was saying, a disturbing part of the continuing series of

15     summaries that we received from the Stojic Defence team, and I might -- I

16     might briefly bracket a comment and say, everyone in the courtroom, all

17     of us, understand the difficulties of this complex litigation and the

18     burdens of it.  The Prosecution certainly feels those burdens virtually

19     every day, did during the Prosecution case, continues to do so.  This is

20     a big case.  Someone once told me, "Big cases, big headaches," and

21     I think there's been a number of headaches in this case.  So we're not

22     unsympathetic, Your Honours, to the difficulties it imposes on the

23     lawyers, on all sides, and on the Chamber and its staff as well, so we

24     certainly appreciate that.

25             Now, having said that, there is a disturbing aspect in the

Page 36103

 1     summaries that indicates to us, in our submission, indicates a tactical

 2     aspect of this sequential additional disclosure of information, and this

 3     is where I was yesterday when I suspended my comments.

 4             In the second summary that the Prosecution received in this

 5     matter, in connection with one matter, in particular, P 02056, that

 6     second summary said this, and I'm quoting:

 7             "Slobodan Bosic will specially explain documents that relate to a

 8     central document labelled P 02056."

 9             That was the full information that we were provided.  He will

10     discuss this document listed by number; nothing more said.

11             In the third summary that the Prosecution received on this

12     matter, it said this in connection with the same exhibit:

13             "Mr. Bozic will testify -- will also testify about his knowledge

14     regarding the formation of detention camps, et cetera," and I'm skipping,

15     continuing the same sentence, "... and relations of the Department of

16     Defence toured these detention camps and military prisoners (P 02056)."

17             No other information, but the same mysterious P 02506 -- 56,

18     appeared.

19             In the fourth summary received last Saturday, we received this

20     information:

21             "As far as document number P 02056 is concerned, Mr. Bozic will

22     testify that he never received this report, but he had contacts with

23     Marko Bozic, the individual who signed the report, who confirmed to the

24     witness that he never signed that document."

25             Dramatically different and dramatically more detailed information

Page 36104

 1     about this document, dramatically different than the first three

 2     generations of summaries, only first disclosed on the Saturday before the

 3     witness was scheduled to testify.  And it saddens me to say, Your Honour,

 4     that it strikes the Prosecution team as having been tactical in nature.

 5     That could have been set out weeks ago.

 6             I will further abbreviate my comments to this, Your Honour, in

 7     light of everything else that has been said:  Mr. Khan has thrown around

 8     the word "lamentable," since these matters were first raised, and I will

 9     imitate him to that extent and use the same word, and I'll close my

10     comments on this point with this:

11             What is lamentable is that a lawyer of Mr. Khan's experience and

12     skill apparently cannot read the Rules, the case law of this Tribunal,

13     and the rulings of this Trial Chamber and know what the law is.  What is

14     lamentable is that a lawyer coming from the country of Shakespeare cannot

15     read the English language enough to know that his summaries clearly do

16     not comply with what the Rules require.  A plain reading of the English

17     language indicates they say nothing or very little about what the witness

18     will say.

19             Finally, Your Honour, it is lamentable that it appears that the

20     real motivation or at least a substantial one was a tactical one,

21     contrary to the clear guidance given just last week by Your Honour

22     Judge Antonetti when you said, Mr. President:

23             "At this stage in the presentation of the evidence on the part of

24     the Defence, you do have to show your cards.  You can't keep them

25     hiding."

Page 36105

 1             Quoting, Your Honour.

 2             Those are our comments, Your Honour, and I have abbreviated them

 3     further to take as little time as possible.  And I appreciate the Chamber

 4     affording me the opportunity to complete my submission.

 5             Thank you.

 6             MR. KHAN:  Your Honour, just two minutes.

 7             I'm most grateful to my learned friend's succinct submissions --

 8             JUDGE ANTONETTI: [Interpretation] One moment, Mr. Khan.

 9             First of all, I shall make amends, mai culpa, because yesterday I

10     had given you 10 minutes and you used 25 minutes.  Maybe I should have

11     stepped in in order to interrupt you, which would account for the fact

12     that possibly Mr. Scott felt that he had not been given the same amount

13     of time, which is perfectly understandable, and I thank him for his

14     concision today.

15             Just this:  Why did I let you continue yesterday?  Because at

16     some point in time, you dealt with an issue of law that had escaped me

17     and may have escaped quite a few, that I thought interesting.  It was the

18     issue of footnotes related to confidential decisions, and you set forth

19     the principle or problem of whether confidential decisions may be used.

20             I thought it over, overnight, I thought about it all night, and I

21     don't have a solution, because other Trial Chambers have issued decisions

22     and we do not take them into account at all.  Whenever there's a problem

23     and we ask our legal officers to do some research, then sometimes we may

24     be informed of confidential decisions, but the issue arises as to whether

25     they may be used, risking contempt of court.  You never know.  So you did

Page 36106

 1     raise a serious and a real problem, and I was listening to you, and I let

 2     you run your course, which may account for the fact that 10 minutes

 3     turned into 25, and this may be a reason why Mr. Scott had the feeling

 4     that he had not been given sufficient time.

 5             Furthermore, when Ms. Nozica intervened, I did not understand at

 6     all why she took the floor.  I don't know.  Whilst your presentation had

 7     been clear, you had set forth your position, and she added something

 8     which I did not quite understand.

 9             After that, we had the counsel for Mr. Coric, I understood then,

10     because I was not able to verify what Mr. Scott said about things I said

11     several months ago, I did not have the transcript back then -- or

12     yesterday, so I had to check, and I let Mr. Coric's counsel speak.

13             So this is what I wanted to convey to you.  I hope all this is

14     going to calm down and that we will continue to work in the good spirit

15     that has characterized these proceedings.

16             You may proceed now, Mr. Khan.

17             MR. KHAN:  Mr. President, I'm most grateful for your comments and

18     guidance, and for the indulgence yesterday.

19             Your Honours, I take it from you that I was 25 minutes, rather

20     than the whole proceedings, including Judge Trechsel's comments and

21     interventions of Ms. Nozica and the other counsel that had intervened

22     being taking up 25 minutes, but, Your Honour, be that as it may, if I can

23     deal with the issue of law first.

24             There is a difficulty in consistency that the Tribunal has to

25     grasp regarding the confidential decision.  For my own part, as far as

Page 36107

 1     it's relevant, my view is that there has to be a distinction drawn

 2     between the legal findings in the decision and the confidential mention

 3     of a witness or an issue, because it must be an issue of this Tribunal

 4     that the jurisprudence, which is very thoughtfully crafted and that

 5     emanates from the Benches of this Tribunal, are disseminated as widely as

 6     possible, but of course it's an issue for the Registry in due course, in

 7     my respectful submission, as to how to disseminate the law of this

 8     Tribunal as widely as possible.  It cannot be right, of course, that

 9     jurisprudence which may be helpful to one party or the other is not

10     usable.  That's the issue of law.

11             Your Honour, I'm not going to belabour the point.  I heard

12     Mr. Scott's, as always, very eloquent comments about me coming from the

13     land of Shakespeare.  I also come from a land of Ghalib and Iqbal,

14     because I am Pakistani, so this is not my only language, and the

15     deficiency that I suffer from in English, I would ask that he perhaps

16     give me a degree of latitude.

17             But, Your Honour, the real issue wasn't Bozic.  We intimated all

18     along that we would try to provide more information.  The real issue was

19     why, in fairness, could a party not respond between March 2008 and

20     January 2009 if it said that a summary is deficient?  And, Your Honours,

21     there are six teams here.  For general allegations to be made that

22     summaries are deficient is not good enough, in my submission.  It must be

23     a duty of a party, who is in receipt of a Defence team's summaries, to

24     specify which of those summaries are in adequate, not to do so on for all

25     of those months, March 2008 to January 2009, but on the eve of each

Page 36108

 1     witness's arrival, almost, start asking a small Defence team to scurry

 2     around to ferret out more information is really not satisfactory, and

 3     that's why I made the argument of legitimate expectation and waiver.

 4             Now, these are principles of administrative law and of fair

 5     process, and those are the principle submissions that anchored my however

 6     feeble submissions.

 7             Your Honour, I am grateful for Mr. Scott's very generous

 8     comments.  I can assure him, for all the other foibles of this courtroom,

 9     I have not fallen asleep in this courtroom.  Not only is there very good

10     coffee in this cafeteria, but it is also a very interesting courtroom

11     with very interesting members on all sides.  So I have tried my best to

12     pay attention.

13             But, Your Honour, those are my very brief and no doubt very

14     feeble submissions.

15             JUDGE ANTONETTI: [Interpretation] Mr. Scott.

16             MR. SCOTT:  Your Honour, I'll ask the Chamber to please indulge

17     me for 30 more seconds to address a point that both you, Mr. President,

18     raised after I sat down and Mr. Khan touched on again after I sat down,

19     very briefly.

20             Your Honour, the point about the confidentiality of the various

21     legal filings, while a creative and interesting one, we submit, is not a

22     serious issue in this case.  All of that law has been cited in the

23     Prosecution filings, going back probably more than a year now.  All the

24     case law has been cited.  It's been -- there's been citations, I believe,

25     in the Trial Chamber's orders.  All I might say, without disclosing any

Page 36109

 1     confidential information, when simply there's simply a quote as to a

 2     statement of law as to what a summary required, without disclosing any

 3     witness information, et cetera, I don't think anyone can be seriously

 4     offended by that.  So with due respect, and if we can end on a note -- on

 5     that note, perhaps, with due respect to my learned friend, the point

 6     about the law not being available to him is not a correct one.

 7             Thank you very much.

 8             JUDGE ANTONETTI: [Interpretation] Mr. Scott, we discussed this

 9     among the Judges.  You have received the list of all the witnesses to

10     testify in the coming months, so the remaining 2D witnesses, 3D

11     witnesses, 4D witnesses, 5D witnesses, and 6D witnesses.  Therefore, you

12     have received all the summaries.  Now, if you have enough time to look at

13     those statements, look at those that raise problems for you, and then you

14     can turn to the respective teams for supplements, so as to have to do

15     that one day or three days before the concerned witness comes.

16     Everybody's received their 65 ter list, everybody's received the

17     statements.  Therefore, you and your team, you can look at them, and if

18     you realise, for instance, that for Mr. Coric's witness there's a very

19     poor statement that raises problems, just say so to them and ask for

20     supplements, without necessarily addressing the Trial Chamber on them.

21     And should there be any problems, then you do have the possibility of

22     addressing us.  But you have received the scheduling for the entire

23     hearings, you have all the statements.  Try to identify where there are

24     problems, because you're both right, we don't have to settle the matter,

25     but it must be said that the Defence has limited means, and it's part of

Page 36110

 1     their goodwill.  They do have limited resources.

 2             And I heard Mr. Khan and you, Mr. Scott, say that there were

 3     exchanges of four letters.  I can imagine the latest one last Saturday.

 4     I can imagine the problem it raised for the Defence, because they have to

 5     proof the witness, they have to answer your mail.  It's complicated.

 6     They don't have a fleet of legal assistants helping them, so they do find

 7     themselves in a situation of inferiority.  So if, in advance, you can ask

 8     them to supply you with specific supplements, that would be good for

 9     everybody; for the Trial Chamber, for you, and for the Defence teams.

10     But I think everybody has now understood, in substance, what is essential

11     is that everybody can defend their cases as best as they can.

12             Yes, Mr. Scott.

13             MR. SCOTT:  Thank you, Mr. President.

14             I want to start by saying we'll certainly take that on board, as

15     we have in the past.  I want that -- I do want to say, to be clear,

16     though, Your Honour, maybe not fully successfully, but we have, in fact,

17     and again with respect to my good friend, I disagree with him that the

18     matters haven't been raised.  We have tried to keep these matters from

19     the Trial Chamber, and following up in part, in part, on the

20     encouragement from Judge Trechsel last fall.  I think there was a time,

21     Judge Trechsel, he mentioned the same thing, and we took that on board at

22     the time.  I take your comments today, Mr. President, on board as well.

23     But I think it's only fair to say the Prosecution has endeavoured to do

24     that.

25             We don't burden the Chamber and the legal officers with all the

Page 36111

 1     exchange of letters between counsel.

 2             The motion that we filed in January was only after an exchange of

 3     letters, several letters, only after specifically asking for it.  And

 4     with the witness schedule upon us, and what's happened in the past is we

 5     don't file it until, quote, "too late," and then it become a

 6     fait accompli or the Chamber says it's too late, so we waited until what

 7     we considered the last possible moment -- excuse me.  We waited until

 8     what we considered a last reasonable moment for motions to be filed, for

 9     it to come before the Chamber, for it to be heard and considered, and for

10     a decision to possibly be delivered before the witness was then scheduled

11     to testify.

12             So I don't want there to be any misunderstanding in the

13     courtroom, that what's actually happened, and we have raised -- we have

14     raised these issues in a regular basis, and they are not being raised one

15     to three days before the witness gets here.  This matter started being

16     raised concerning Mr. Bozic some time ago, so I do want to be clear about

17     that.

18             Your Honour, I will commit to the Chamber, if it will assist, and

19     the Prosecution always seeks to be constructive, as to the Stojic

20     summaries, we will go back through them again, the remaining witnesses --

21     of course, we just finished or are about to start the second witness and

22     just finished the first witness.  I will commit to the Chamber that we

23     will go through the Stojic summaries, in particular, and communicate

24     further on that.

25             But having said that, Your Honour, I do that as a show of

Page 36112

 1     absolute good faith and good intentions to the Chamber.

 2             Having said that, I must nonetheless record that I don't accept

 3     that the principle of the burden to bring the Defence into compliance

 4     falls on the Prosecution.  The Rules are there, the Rules are to be

 5     complied with.  Your Honour, the Defence might just as well say, and I'm

 6     sorry if Mr. Kovacic doesn't like me to say this, but it's what's

 7     reflected in the record.  When Your Honour, President Antonetti, said

 8     last April that the Praljak summaries are not adequate, does that mean

 9     Your Honour, Judge Antonetti, that you have to remind them each day until

10     they come into compliance that their summaries are not adequate?  It's

11     neither on the Chamber nor on the Prosecution's obligation to bring the

12     Defence into compliance.  And while we will bend over backwards to do

13     what we can to assist these proceedings and assist the Chamber, we have

14     to say it's not our burden to do that.

15             Again, I'm very grateful to for the opportunity to address the

16     Chamber.  Thank you.

17             MR. KHAN:  Your Honour, I do apologise.  I wanted to leave

18     matters as they were, rather than have a ping-pong match in court, but,

19     Your Honour, I did say yesterday it is very easy to paint a picture with

20     very broad brush strokes.

21             Your Honour, I invite my learned friend to disclose to the Trial

22     Chamber, otherwise we will do it, all the correspondence on this issue of

23     summaries since March 2008.

24             Your Honours, yesterday I referred to the only correspondence,

25     and let my learned friend correct me.  The 1st of October, no mention of

Page 36113

 1     specific inadequacies.  The 23rd of October.  But, Your Honour, the only

 2     letter was the 5th of January, in which the Prosecution stated that they

 3     request adequate summaries as previously requested in their letters of

 4     the 1st of October and 23rd of October.  And, Your Honour, those letters

 5     do not support that proposition.

 6             So, Your Honours, my learned friend is asserting that there has

 7     been -- there is clear evidence that rebuts my central thesis that there

 8     is a waiver by the Prosecution and that we have a legitimate expectation

 9     that our summaries submitted in March 2008 are not called into dispute,

10     were not alleged to be deficient, until January of 2009, should have

11     stopped the Prosecution from asking for further and better particulars at

12     this late stage, because they were dilatory and they were tardy.  Your

13     Honours, that is an oral motion that I made before the Trial Chamber.

14             And, Your Honours, given what Mr. Scott has said, I would ask for

15     a ruling that the Prosecution now -- it's too late in the day, in

16     relation to the Stojic team, to ask for further and better particulars.

17     We will endeavour unilaterally, as I said yesterday, to supplement where

18     we can, but their delay is not without legal effect.

19             Your Honours, I do invite Mr. Scott and I stand to be corrected.

20     Let's put forward to the Trial Chamber the correspondence in which he

21     states that our summaries were deficient between March of 2008 and

22     January of 2009.  Your Honours, I have referenced the only correspondence

23     in my possession, which are the letters of the 1st of October and the

24     23rd.

25             So, Your Honours, I would ask that this issue be looked at not

Page 36114

 1     with broad brush strokes but with a fine brush.

 2             MR. KARNAVAS:  If I may be heard, Mr. President, if I may be

 3     heard for just one minute.

 4             Obviously, this issue has been litigated and re-litigated.  We

 5     all know the law, and I think that it's not going to go away.  I think

 6     perhaps the best approach would be for the parties to sit down with the

 7     senior legal officer under 65 ter private hearings and they can hash it

 8     out, and if necessary, then come to court, but I think that's probably

 9     the easiest way.  That's my first point.

10             My second point is, I do take exception to Mr. Scott's yesterday

11     making certain remarks about me.  I understand this was a segue into his

12     speech, but it would appear that he was characterizing me as some sort of

13     a ring leader of a motley crew of miscreants, and I don't think that's

14     fair.  I have nothing to do with the other Defence teams.  We try to

15     abide by the Rules.  We disagreed on occasion.  We did our best.  But I

16     don't think it's necessary for Mr. Scott to malign me or to use me as,

17     you know, someone to kick around every time he has a disagreement with

18     other Defence teams.

19             JUDGE ANTONETTI: [Interpretation] Well, let's put an end to this

20     discussion.

21             Our decisions were very clear.  Unfortunately, this type of

22     discussion should have been broached and settled during the pre-trial

23     phase, and further to the Bonomy report, whenever a trial is being

24     prepared, the Pre-Trial Judge should not just read the memo drafted by

25     the senior legal officer, but should also get involved in the management

Page 36115

 1     of the file and, based on witness lists, should have examined each of

 2     them to ask for further information from all parties regarding exhibits

 3     and statements, and then everything would have been settled during the

 4     pre-trial phase rather than during the trial proceedings.  So it's a kind

 5     of cultural revolution that should be carried out in this Tribunal.

 6     Pre-trial Judges should get more involved than that.  Presiding Judges

 7     have more power, as per the Rules, but all this is very difficult to

 8     implement, to set in motion.

 9             But hope springs eternal.  We might get there some day.

10             JUDGE TRECHSEL:  Thank you, Mr. President.

11             I hope it will be helpful if I return to the substance of this

12     issue; namely, what does the Chamber think is the obligation of the

13     Defences.  And as you have no doubt seen in our decision of 22nd of

14     January, we have followed the case law, not really published case law,

15     which clearly says that it is not enough to say what the witness will

16     testify about, what will be the subject of his discussion, but that it is

17     necessary to tell the other party and the Chamber what he will actually

18     say.  And we had this little exchange of views with Ms. Nozica where I

19     already referred to this and to the fact that even if the Prosecution has

20     taken a statement from the witness years ago, when he was still

21     considered to be a possible suspect, it may well be that in the meantime

22     he will tell something quite different.  And in fact the last expert

23     witness we had here in certain points declared that now he had a quite

24     different view than the view he had barely four years ago.

25             So I think it's enough to look at what is set out in the 65 ter

Page 36116

 1     list and circle, as I start doing it, every time the word "about" comes

 2     up, to circle it, and to try to replace it by something affirmative that

 3     the witness will say that, he will testify that.

 4             I join those -- I think everyone is in agreement on the fact that

 5     this is not very easy, it needs a certain effort.  On the other hand,

 6     certainly no formal statement is needed, and that already makes the

 7     burden much lighter, because it's not necessary to have an entire

 8     organisation, to bring in sworn translators or interpreters and so forth.

 9     And, on the other hand, it is difficult to imagine that the Defence calls

10     a witness without an idea of not only what he is speaking about, but what

11     he is actually going to say, because that is what will assist the case of

12     the Defence.

13             I hope this helps to clarify what the Chamber meant in its

14     decision on 22nd January, and I think that to some extent, at least, it

15     is not difficult for Defence teams to look at what they have and see

16     where the problem actually lies.  It's not so much really a question of

17     detail, but the difference between a witness testifying about something

18     and the witness saying this or something else.

19             Thank you.

20             JUDGE PRANDLER:  Thank you, Mr. President.

21             I would only like to add, without prolongation of this debate,

22     that I would like to associate myself with the statements made by our

23     President Antonetti and also by Judge Trechsel.  Our position has rather

24     clearly been exposed and submitted in our decision a week ago, and I

25     believe that it should be, of course, followed.

Page 36117

 1             I would like only to add that really I would expect the parties

 2     to proceed in this way, as we have asked for, and in a way to close this

 3     issue without further discussion and, in a way, kind of accusing each

 4     other with certain problems, which of course with some goodwill could be

 5     solved.  I believe it is an issue which now should be really closed, in

 6     the interests of justice, in the interests of the good proceedings of the

 7     Trial Chamber, and I would like to call on you to try to help us and to

 8     proceed in a way which will be useful for this Trial Chamber itself.

 9             Thank you.

10             MR. KOVACIC: [Interpretation] Thank you, Your Honours.  I shall

11     be very brief.

12             Originally, I hadn't intended to join in this discussion.

13     I think all that is important has already been said.  But in view of the

14     fact that my learned friend Mr. Scott explicitly mentioned

15     General Praljak's Defence counsel and my name at the beginning of page 12

16     as an example of inappropriate behaviour and inadequate summaries,

17     I think it is my duty to make two brief comments.

18             First of all, I wish to say for the record that I strongly

19     support the arguments given by the Defence counsel for Mr. Stojic.  There

20     is absolutely no doubt that the theory on the waiver of the right

21     objectively stands, and this is a theory that this Court accepts, and it

22     attaches it to the criterion of due attention, due consideration; namely,

23     the Prosecutor has received summaries from all the Defence counsels on

24     the 31st of March of last year.  It is true, though the Prosecutor has

25     slightly misinterpreted it, that the Chamber at that point had certain

Page 36118

 1     objections regarding our summaries.  As my Defence counsel takes all

 2     these objections very seriously, we reviewed them, and we agreed to a

 3     point that some of the summaries were inadequate, and we sought to remedy

 4     this.

 5             However, even before trying to analyse this, as early as the 31st

 6     of March, all the witness statements in our possession, of which the

 7     summaries were disclosed, and we have 98 per cent of complete statements

 8     of witnesses for which we have provided only summaries, all those

 9     statements were on that day or the next day, in any event at the

10     beginning of April, were disclosed to the Prosecution.  They were made

11     accessible on the e-mail.  So the Prosecutor did not only receive

12     summaries, but also statements.  It is true that a smaller number of

13     those statements were with English translations and the translations were

14     added subsequently.

15             Throughout that period, until quite recently, it never occurred

16     to me that it would be possible for the Prosecutor to have any problems

17     with the summaries of General Praljak.  I wish to state here, for the

18     benefit of the Chamber, that simply there's nothing more than the

19     statements.  The complete statements, the complete interviews, regardless

20     of whether we are going to question the witness about everything, we

21     cannot offer more than that.  And it is clear from the case law that I'm

22     not obliged to have a statement, not to mention to disclose it, so I'm

23     doing much more than I am duty-bound.

24             From the 1st of April last year until the present, has not once,

25     in a single word, though we do attach small letters to new

Page 36119

 1     translations -- he never called in question this question of summaries.

 2     So I wish to avoid such discussions in the future that I'm not able, with

 3     the team that I have and the only team that I can have on the basis of

 4     the finances I have, that I'm not able to provide anything more except

 5     the statements, when our case comes up, the complete text of the

 6     statements.  And we have already provided them with this.

 7             So any effort to obtain from this Defence anything more is

 8     prompted by some other motive.  Let us encumber the Defence to deal with

 9     insignificant matters and have less time for the substance.  I'm just

10     speculating.

11             And I support the theory of waiver.  The Prosecutor should not

12     have sat quietly for a year and now raise a major issue regarding the

13     summaries by Mr. Stojic.

14             And, secondly, I have provided them with much more than it is my

15     duty to do.

16             JUDGE ANTONETTI: [Interpretation] The Trial Chamber will give an

17     oral ruling concerning the motion from the Prosecution on the Stijepo

18     Buljan summary.

19             On 13th of January, 2009, the Prosecution requested the Chamber

20     to instruct the Stojic Defence to submit an adequate summary of the

21     Stijepo Buljan testimony in line with 65 ter(G) of the Rules, and this to

22     be done by the 19th of January, 2009.

23             In the transcript, it was on the 13th of January that this was

24     requested, the 13th of January, and the answer to be given by the 19th of

25     January.

Page 36120

 1             On the 16th of January, 2009, the Praljak Defence made a written

 2     submission in which it supports the view that the summary of Stijepo

 3     Buljan is adequate and thorough.

 4             On the 19th of January, 2009, the Stojic Defence made a written

 5     submission according to which it informs the Trial Chamber that it will

 6     provide a supplement to the summary of Stijepo Buljan as quickly as

 7     possible.  The Stojic Defence submitted this supplement on the 22nd of

 8     January, 2009.

 9             Having examined the submission by the Stojic Defence, the Chamber

10     deems that this has provided adequate information, making it possible for

11     the Prosecutor to prepare the cross-examination of the witness who is

12     scheduled to appear as of the 4th of February, 2009.

13             Given the supplementary element provided by the Stojic Defence,

14     the Chamber declares that the request made by the Prosecutor is

15     unfounded.

16             What is more, yesterday I read out an oral ruling, asking the

17     Prosecutor whether they wanted Zelenika to return for cross-examination

18     on the contribution to the Cvikl report.  Yesterday, you said you were

19     going to look into this, so do you have an answer?

20             MR. SCOTT:  Yes, Your Honour.  Thank you very much.

21             JUDGE PRANDLER:  I'm sorry, Mr. Scott.  I would only like to ask

22     you to wait for one minute.

23             I believe that the English translation of the previous oral

24     ruling decision was not the best one.  The very last sentence said that:

25             "Given the supplementary element provided by the Stojic Defence,

Page 36121

 1     the Chamber declares that the request made by the Prosecutor is

 2     unfounded."

 3             Now, I believe that the English equivalent to the French word

 4     should be not "unfounded" but "moot," so I believe that there is a

 5     certain difference between the two.  So we used not "unfounded" but that

 6     the request has become moot, m-o-o-t.

 7             Thank you.

 8             JUDGE TRECHSEL:  I would just like to confirm this.  I had the

 9     same observation.

10             JUDGE ANTONETTI: [Interpretation] I would ask the interpreters to

11     be very careful.  This is not the first time that such errors have crept

12     in, and then there are huge consequences subsequently.

13             This is a very difficult job that you do, but an error can have

14     consequences, as we have already seen when Ms. Alaburic intervened,

15     picking up on something that she thought I had said.  So I would ask the

16     interpreters to be extremely careful.  Everything that we have has a

17     particular meaning, and this term "sans objet" does not mean "unfounded,"

18     it's not "sans fondement."  It's not the same thing.  So please be

19     professional in your approach to translation.  And I would like to thank

20     you in advance.

21             Now I turn to Mr. Scott.  For Zelenika, what does the Prosecutor

22     have to say?

23             MR. SCOTT:  Thank you, Mr. President, and I do appreciate the

24     clarification, and indeed there is a significant difference in it, and I

25     do appreciate everyone taking the time to correct it.

Page 36122

 1             Your Honour, I've talked about this matter, consulted with

 2     Mr. Stringer.  Given the passage of time and the testimony of both these

 3     witnesses that is now taking place, we would not persist in that motion

 4     and it can be considered to the extent it may be outstanding, to be

 5     withdrawn or, again, moot perhaps, as Mr. Karnavas says.

 6             I might just -- if Your Honour will indulge me for one additional

 7     second on two things.

 8             I hope the Chamber will appreciate, and especially in the light

 9     of the arguments made about waiver or standing silent, I hope the Chamber

10     will appreciate that I'm not going to respond further to the comments.

11     Someone has to stop, and that doesn't mean I agree, that doesn't mean the

12     Prosecution agrees, unless we be accused, "Well, Mr. Scott didn't say on

13     the 28th of January he's waived it."  I hope that won't be the case.  I

14     don't agree with a number of the comments that have been made, but it has

15     to stop somewhere, Your Honour.  I hope the Chamber will appreciate that

16     I'm not making additional comments on this point in that spirit.

17             Your Honour, while I'm on my feet, as concerning a matter which

18     was raised yesterday, also I think it might be constructive, perhaps, if

19     we could address it.  If we could go into private session just for a

20     moment.

21             JUDGE ANTONETTI: [Interpretation] Registrar.

22                           [Private session]

23   (redacted)

24   (redacted)

25   (redacted)

Page 36123











11 Pages 36123-36124 redacted. Private session.















Page 36125

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11                           [Open session]

12             THE REGISTRAR:  Your Honours, we are back in open session.

13             JUDGE ANTONETTI: [Interpretation] Registrar, I give you the floor

14     for the IC numbers.  I believe you have several of these.

15             THE REGISTRAR:  That's correct, Your Honour.

16             Some parties have submitted lists of documents to be tendered

17     through Witness Marijan, Davor.  The list submitted by 2D shall be given

18     Exhibit IC 00905.  The list submitted by 1D shall be given

19     Exhibit IC 00906.  The list submitted by 3D shall be given Exhibit IC

20     00907.  The list submitted by 4D shall be given Exhibit IC 00908.  The

21     list submitted by 5D shall be given Exhibit IC 00909.  And, finally, the

22     list submitted by the Prosecution shall be given Exhibit IC 00910.

23             Thank you, Your Honours.

24             JUDGE ANTONETTI: [Interpretation] Thank you, Registrar.

25             Ms. Alaburic, you have the floor.

Page 36126

 1             THE INTERPRETER:  Microphone, please.

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Page 36127











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Page 36141

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20             Let me ask the Registrar to prepare the order so that I can sign

21     it.  In this way, the witnesses outside the courtroom will not be aware

22     of what has been discussed.  So we have now taken a look at this.  We

23     will have to stop.

24             Mr. Scott.

25             MR. SCOTT:  Thank you, Your Honour.

Page 36142

 1             I can assure the Chamber, only a procedural point, although again

 2     some minutes having passed since the Prosecution was on its feet.  We

 3     obviously will have views on this topic as well, which I won't go into

 4     now.

 5             It would assist and we would ask Your Honours is that if the

 6     Defence submissions can be made and all come in at a certain time, so

 7     that the Prosecution might be able to file one response, once all the

 8     Defence submissions have been made, we would be most appreciative, and

 9     I think it would be most sufficient on that point, Your Honour.

10             And I do have one other point to raise if the Chamber --

11     depending on what the Chamber has in mind for the schedule.

12             Thank you.

13             JUDGE ANTONETTI: [Interpretation] Go ahead, yes, do.  Of course,

14     as soon as the written submissions of the Defence are registered, you

15     will be given time to respond.

16             What else did you want to say, Mr. Scott?

17             MR. SCOTT:  Mr. President, it relates to a matter -- first, if we

18     could go into private session, and then we'll have to determine whether

19     we have to go further than that or not.  The first step is private.

20             JUDGE ANTONETTI: [Interpretation] Registrar, please, let's go

21     into private session.

22                           [Private session]

23   (redacted)

24   (redacted)

25   (redacted)

Page 36143











11 Pages 36143-36146 redacted. Private session.















Page 36147

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14                           --- Whereupon the hearing adjourned at 3.51 p.m.,

15                           to be reconvened on Monday, the 2nd day of

16                           February, 2009, at 2.15 p.m.