1 Monday, 27 August 2001
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.46 a.m.
5 JUDGE ROBINSON: Sir Ivan, yes.
6 MR. LAWRENCE: May it please the Court. May I, on behalf of my
7 colleagues, welcome back His Honour Judge Fassi Fihri.
8 I have a short application, of which I have given notice last week
9 to the Chamber through the legal officer. I respectfully ask that the
10 Chamber will allow me to postpone the presentation of the case of the
11 defence of Kolundzija from today. I'm not in a position to proceed with
12 the opening of the case and the calling of witnesses without seeing and
13 considering the Chamber's reasons for refusing the submission that there
14 was no case to answer, which is the Rule 98 bis submission I made on the
15 21st of June.
16 Of course, I understand and accept that it hasn't been possible
17 for me to know the Chamber's reasons up until now, although I have given
18 some indication to the Chamber over the weeks that I hoped to receive
19 those reasons before the Chamber expected me to proceed with Kolundzija's
20 defence. It will, I think, be evident to the Chamber why I'm not in a
21 position to proceed, and perhaps I needn't go into those reasons at this
22 moment. It will also be obvious to the Chamber that the ruling may enable
23 me to shorten the time the Defence might otherwise take, so that it
24 doesn't necessarily follow from this application that unnecessary time
25 would be taken up.
1 As to the length of any postponement which the Chamber thinks
2 might be appropriate, I would, of course, need time to consider the
3 reasons with my learned co-counsel, Mr. Ostojic, then consider them with
4 my client at the Detention Centre, perhaps with my colleagues representing
5 the other two defendants, who might be affected by any decisions that I
6 take, and perhaps with my colleagues representing the Office of the
7 Prosecutor, and perhaps even with the Chamber itself. The most important
8 element is obviously when the Chamber will be able to inform me of its
10 The Chamber will, I understand, be dealing with other matters this
11 week and won't be able to sit for two hours at the end of tomorrow and for
12 the morning of Thursday. I should perhaps tell the Chamber that I'm also
13 considering raising other matters which might take a little time,
14 particularly the matter that was left over from last time when, the Court
15 will recall, that I made an application for the Prosecutor to
16 disclose -- or look for and disclose more evidence, and I made a written
17 motion, and His Honour Judge Robinson said that time would be needed for
18 the Prosecution to consider that and respond to it, and in due course the
19 Court might be moved to make a judgement in the matter if there continues
20 to be any dispute.
21 So that, for the moment, is my application.
22 JUDGE ROBINSON: Thank you, Sir Ivan.
23 [Trial Chamber confers]
24 JUDGE ROBINSON: You will recall that at the last hearing, I
25 indicated that the Chamber's decision had indeed been rendered and what
1 was holding it up was the translation. It has now been translated, and
2 the Chamber will make available to you, Sir Ivan, that portion of the
3 decision that relates to Kolundzija, to your client. You will have that
4 today. It's here in court, so you will have that immediately.
5 The Chamber will require you to begin your defence on Wednesday
7 As for the other submission, motion, that you have filed relating
8 to Rule 68 - that's the motion to compel disclosure of exculpatory
9 evidence in the possession of the OTP - we will give a decision on that by
11 MR. LAWRENCE: Well, would you hear ...
12 THE INTERPRETER: Microphone to the counsel, please. Sir Ivan,
13 your microphone, please. Microphone for Sir Ivan, please.
14 MR. LAWRENCE: I'm told the microphone isn't on but it is.
15 Perhaps I'm not standing closely enough to it.
16 It may be that I will, of course, be ready to proceed on Wednesday
17 morning, but I wonder if the Court would bear with me that it may be that
18 I would not be ready to proceed on Wednesday morning. I had in mind that
19 the Court might ask me to start the case on Thursday afternoon, giving me
20 more time to make the necessary considerations that I require to make.
21 I don't think I need go into detail, but the fact of the matter is
22 that there are very important decisions which I must make. It may take a
23 little time because I will have to have discussions and very full
24 discussions with a number of people. It isn't always necessary --
25 possible for what the Court considers to be a reasonable time scale to be
1 followed, I'm afraid. For example, it's not always easy to gain access to
2 the detention centre at the time the Defence would like to do so, and I
3 have in mind that there is some problem about one of the days of the week
4 which often arises, and I think it's Tuesday, but I'm not sure about it.
5 I am asking the Court really to not to come to any firm conclusion
6 about Wednesday. I can undertake that I shall be ready on Thursday. What
7 I'm saying to the Court is I can't, at the moment, be sure that I will be
8 ready on Wednesday, and I don't want to take up Court time by, as it were,
9 asking the Court to come back and remake its decision. If the Court will
10 give me some flexibility at the moment.
11 [Trial Chamber confers]
12 JUDGE ROBINSON: Very well. Then we'll start at 2.00 p.m. on
14 MR. LAWRENCE: Thank you, Your Honour.
15 JUDGE ROBINSON: Would you be in a position to address us on your
16 motion with regard to Rule 68?
17 MR. LAWRENCE: Yes, Your Honour.
18 What I sought and I still seek is an order to compel disclosure of
19 all exculpatory evidence in the possession of the Prosecution under Rule
20 68. May I say at once that I'm not suggesting that the Prosecution
21 necessarily know what information they have and are deliberately refusing
22 to disclose it. What I'm actually asking is for an order that the
23 Prosecution will make an additional effort to try to make sure what it is
24 they have got.
25 As the Court will recall, I raised the matter on Wednesday, the
1 25th of July, before the Chamber, and the passage is at 5356 to 5360 on
2 the transcript. I outlined my reasons for suggesting that the Prosecution
3 had not yet fulfilled its obligation, including, you may recall, the fact
4 that they thought it possible that they might have more evidence and would
5 look again at the matter provided the Defence complied with certain
6 matters, and I think you will recall that one of those matters that I
7 referred to adduced the expected response from His Honour Judge May.
8 I said that we were putting our application in the form of a
9 written motion indicating the circumstances where we considered there
10 might be exculpatory material. His Honour Judge Robinson said that that
11 would be proper and wouldn't call on the Prosecution until they'd seen it
12 and responded to it; then the Court would rule. We duly served the motion
13 on the 25th of July, the Prosecution replied on 31st of July, and we do
14 not consider that the reply is satisfactory, and therefore, I respectfully
15 seek the ruling of the Court.
16 I think that the Court has got copies of my motion. I did take
17 the precaution of discussing the matter with the legal office and
18 understand that the Court has -- it made sure that the Court does have
19 that, and also of the Prosecution's reply of the 31st of July.
20 I should also add that the Prosecution have now provided us with
21 some further statements and have been kind enough to provide us with
22 16-ring binder bundles of evidence which they'd already provided to the
23 Defence when my predecessor was dealing with the case and which, for
24 reasons which I needn't go into, simply don't appear to have been fully
25 made available to us.
1 Can I just briefly go through the Prosecution's response? They
2 oppose my motion because they say that the Defence don't identify a
3 legitimate forensic purpose. In my respectful submission, Rule 67 does
4 not say that the Defence have to disclose a legitimate forensic purpose.
5 We are entitled, as of right, to any exculpatory material which in any way
6 tends to suggest Kolundzija's innocence or to mitigate his guilt or to
7 affect the credibility of the Prosecution evidence, and that's the
8 forensic purpose. It doesn't have to be additionally or expressly further
10 Secondly, they say that this motion would circumvent the Rule
11 66(B), which allows us to inspect Prosecution documents, and the
12 Prosecution to inspect documents which we intend to use in the course of
13 our evidence, and that is 67(C), and that to grant this motion would
14 "disturb the balance of the trial."
15 I must say for myself, I find that objection difficult to
16 understand. We're not circumventing anything, we're not disturbing any
17 balance; we're just asking for documents we believe the Prosecution may
18 have, if they took all the trouble - which I understand they may be
19 reluctant to take - to look for.
20 Thirdly, the Prosecution say that, if granted, the motion would
21 cause a disproportionate burden on the Prosecution and considerable
22 delay. About that, we say, respectfully, that we have been asking for a
23 long time, and they have had the obligation inherently for two years, and
24 any fault of delay must be theirs; it can't be ours. And if we're
25 entitled to the evidence we list in our written motion, and such evidence
1 does indeed exist, then cost musn't stop the Prosecution from divulging
2 it. And although I'm not saying that the Prosecution are using
3 disproportionate burden as an easy excuse, it is an excuse which can be
4 very easily used and must be examined.
5 Fourthly, they say in their reply that it would vitiate the
6 initial discretion provided by Rule 68. About that I say: Is that
7 credible? We have identifying documents beyond what the Prosecution think
8 we need to have. We must be the judges of that, not them.
9 Fifthly, they say that we have other ways of getting the evidence
10 given in the Omarska case, and they imply, I think they more or less
11 expressly state in polite language, that we, the Defence, have been lazy
12 in not getting it; paragraph 5 at page 5 of their submission. But in my
13 respectful submission, we can't be expected to read the testimony in
14 another trial that went on for a year and a half, a hundred trial days,
15 particularly when much of that evidence was confidential and we would have
16 no ready access to it.
17 Furthermore, the Court will recall we were not allowed the four
18 weeks I asked the Court for originally to prepare this case, and limits
19 have been placed upon the hours which we are entitled to claim payment
20 for. And as the Court knows, it's not right and we can't be expected to
21 do work in this case for which no reasonable remuneration is made
22 available. That's an administrative matter, but I state it because it has
23 already arisen when I made a claim for the first month's work that was
24 needed in order to try to get the case ready in a week.
25 We can have no idea, further, what evidence the Prosecution had in
1 that Omarska case which was never adduced in evidence but which might be
2 exculpatory of Kolundzija in the Keraterm case. And although the
3 Prosecution do seem to link this with another request that I made for a
4 statement that the Prosecution have no evidence of Kolundzija being a
5 shift leader with powers to discipline and sack, that had nothing to do
6 with a request for disclosure. It was merely a request for an admission
7 statement. Even that hasn't yet been provided.
8 Can I give the Court some examples of documents which may be
9 exculpatory which have not been divulged to us and are referred to in
10 paragraph 8.
11 Firstly, there's the schedule of work duties for Prijedor II, 1991
12 to 1992, especially document P0028472, which may show who the shift
13 leaders were, what shifts were worked, and the hierarchy. I say that
14 because such a document was produced in the Omarska case, and since the
15 organisation which dealt with Omarska was the same organisation which
16 dealt with Keraterm, it may reasonably be expected that a similar document
17 to that produced in Omarska might be available if the Prosecution were to
18 search more diligently for it for Keraterm. If, on the other hand, no
19 such document exists, then we should be specifically told so, and that may
20 itself be helpful to us.
21 The Prosecution's response to that particular request was
22 that -- is set out in a letter which they wrote to us on the 6th of
23 August, saying that: "The Prosecution believes that items 1, 2, 4, 5, and
24 7 set out in the next section of your letter form part of the subject of
25 your motion currently before the Trial Chamber, and accordingly we await
1 the Trial Chamber's decision."
2 Second example: We've seen a visitor pass for someone to enter
3 Keraterm with an illegible signature. We would like to know what other
4 passes there are which allow other visitors to Keraterm. Who signed
5 them? Was it the Crisis Staff or was it the military? Was it Zivko
6 Knezevic? For if the military gave them the pass, then the military could
7 enter Keraterm officially and no guard could be expected to be able to
8 stop them. Never mind unofficial visits, there may have been official
9 visits. The Prosecution's response to that particular request is the same
10 as I've read out for the first request; that it's a matter for the Trial
11 Chamber to decide.
12 Then there's this document -- another document which we identify
13 as P0050767, and they reply that they have nothing for the 6th for that.
14 Fourthly, we asked for documents from the Crisis Staff which may
15 tell us what the camp conditions were. The Crisis Staff analysed the camp
16 conditions for Omarska. Is it not reasonable to expect that they analysed
17 the camp conditions for Keraterm? Kolundzija is accused of being able to
18 affect the camp conditions. It may be clear from any document from the
19 Crisis Staff that affects Keraterm that he can't conceivably have had any
20 power to affect the camp conditions of Keraterm, and the Prosecution's
21 response to this request is that the Court will rule.
22 Fifthly, are we not entitled to ask for the Prijedor Public
23 Section security documents which cover Keraterm? Where are they? We know
24 they exist for Omarska, so it's reasonably likely that they exist for
25 Keraterm. The Prosecution response is that the Court will resolve that.
1 We've asked for Simo Drljaca's signed letters and reports covering
2 Keraterm. They've given us two. If they have more, then in my
3 respectfully submission, they should tell us.
4 The Prosecution are saying, "Tell us what you need, and we will
5 tell you" --
6 JUDGE ROBINSON: Sir Ivan, you just said something which I think
7 goes to the essence of the matter and the discussion. If they have more,
8 they will provide it, because the Rule 68 requires them to disclose the
9 existence of evidence known to the Prosecutor. What you are saying is
10 that if it is not immediately known to the Prosecutor, the Prosecutor
11 nonetheless has an obligation, once the Defence has indicated that it
12 requires certain information, to search for it.
13 MR. LAWRENCE: Yes. And the Prosecution can't say, Your Honour,
14 "We're not going to look for this stuff and then we can say, `We don't
15 know about its existence.'" They are obviously under an obligation to
16 look for the stuff, and if they then discover something, they know about
17 it, and then they're obviously under an obligation to disclose it. And
18 what we're saying is there is a mass of stuff.
19 And I make it quite clear I'm not saying that the Prosecution know
20 of the existence of things which they ought to have disclosed and have
21 failed deliberately to do. I'm not making any such suggestion. The
22 Prosecution have proceeded perfectly properly in the conduct of this
24 What we're saying is that there is obviously to us, to the
25 Defence, though may not be obvious to the Prosecution, some material
1 around which if they look a little bit harder they may be able to find,
2 and then they will know about it and then they'll be under an obligation
3 to disclose it. And I keep giving examples of material which it's not
4 unreasonable, surely, for the Defence to say, well, if they had it for
5 Omarska, which was being controlled by the same organisation that
6 controlled Keraterm, it's not unreasonable to suspect that they might, if
7 they look for it, have it for Keraterm as well.
8 Of course, it may be that Keraterm was such a shambles that they
9 don't have it, but then we need to know that, because that also would be
10 very material to the Defence since the Prosecution's allegations are
11 specific. And if the explanation is it is all too confusing for them to
12 be specific, that's a very strong point for all of the defendants. And
13 insofar as I'm making this request, it applies equally to my learned
14 friends and their clients that they should have access to this material.
15 It's not just helpful to Kolundzija, although, of course, Kolundzija is my
16 only interest.
17 Can I give another example? We know -- we've picked up that
18 there's another man at Omarska called Dragan Kolundzija, however spelt.
19 It won't astonish the Chamber because the Chamber has already heard a
20 number of examples of people with the same name in that part of the
21 world. We'll know that there is a person who has a different date of
22 birth and lives at a different address and is certainly not the Dragan
23 Kolundzija who appears in front of the Court.
24 Now, the significance of asking the Prosecution for more
25 information about him, that is, the one in Omarska or maybe Trnopolje, it
1 goes to the question of mistaken identity. The Court will recall that the
2 only witness called by the Prosecution who says anything positive against
3 Dragan Kolundzija is Witness N, who we have suggested made a mistake in
4 identification. And I don't need to rehearse with the Court the reasons
5 which I submitted in my 98 bis application, showed that no reasonable
6 court, when it came to making a decision of guilt, could reasonably
7 conclude that that second- or third-hand identification evidence would be
8 evidence upon which any certainty could be reposed, bearing in mind the
9 Tribunal's judgements on identification evidence.
10 Now, it may be. I'm not saying it is. I simply don't know. But
11 over the course of nine years, with all sorts of people concerned with
12 this case understandably talking with each other, it may be that Witness N
13 might conceivably have got a mistaken identity overhearing a
14 conversation - the Court will recall there was no visual identification of
15 Kolundzija - hearing people talking about Dragan Kolundzija. And those
16 people, the Witness N told us, had nothing to do with the three events he
17 was describing. They weren't there.
18 Now, if by any reasonable chance the witness either was at a camp
19 at which the other Kolundzija was or that other Kolundzija had anything at
20 all to do with Keraterm, then that would be monumentally important to us
21 if the Court thought that the evidence they'd heard so far of
22 identification of Kolundzija was to any degree at all convincing. Of
23 course, it wouldn't apply if the Court had already come to the conclusion
24 that there's no way they could rely upon that evidence. But we don't know
25 that, which is one reason why I want so much to see the Court's reasons
1 for refusing my 98 bis.
2 Now, it seems to us inconceivable that somewhere along the line
3 some interview hasn't taken place with some witnesses about the Dragan
4 Kolundzija at Omarska or Trnopolje or wherever he was. We've asked this
5 specifically of the Prosecution, and they have produced four documents
6 signed by someone called Dragan Kolundzija, having raided their databases
7 and pressed a button with a name and out these have come. But that's not
8 what we're looking for. We know about the existence of another Dragan
9 Kolundzija from other documents. What we would very much like to see is
10 any statements the Prosecution might have taken in proceedings not
11 directly connected with Keraterm, at Omarska or Trnopolje, of any
12 witnesses where they were asked about whether they knew a Dragan
14 I'm not saying that I know that the Prosecution have taken such
15 statements, but I do know that if I was in charge of things, I would
16 expect to direct the investigators to see if they could find out a bit
17 more about Dragan Kolundzija at Omarska in case it had some effect upon
18 the charges in this case in Keraterm.
19 JUDGE ROBINSON: Sir Ivan, can I ask you this: Isn't Rule 66(B)
20 the more relevant provision on the basis of which your application should
21 be made? If you say that these documents and this information is in the
22 hands of the Prosecutor, why don't you request the Prosecutor, under
23 66(B), to provide that material?
24 MR. LAWRENCE: We have done that. I can't actually, at the
25 moment, just put my hands on it, but we have done that. I can assure you
1 we have asked the Prosecution, both orally and I think in writing, for
2 details of this, that they're not under any surprise on that. We have on
3 several occasions. I have, when I've spoken to them on one or two
4 occasions, and I know my learned friend Mr. Ostojic has also. I don't
5 think they would deny that they didn't know about this application.
6 JUDGE ROBINSON: You have already then requested this information
7 on the 66(B).
8 MR. LAWRENCE: Yes. Yes. I don't know whether we specifically
9 said 66(B), but I said we are entitled to it, and I don't think that
10 they've --
11 MR. RYNEVELD: I must interject. The answer to that, quite
12 clearly, is no. We've addressed that issue in our response. We have been
13 awaiting something in writing. We do not have an invocation of 66(B), but
14 this is a side issue, but my friend is suggesting he has. To my
15 information, he has not.
16 MR. LAWRENCE: Well, it's very difficult for me to argue with my
17 learned friend. I do myself recall requesting orally such information.
18 Maybe my learned friend has forgotten, but --
19 JUDGE ROBINSON: I raise it because I think it's one of the
20 matters that the Chamber will have to consider. I mean, you have made it
21 under 68, but the Chamber has to consider what is the relevant provision.
22 MR. LAWRENCE: Yes. And it may be that I am at fault for not
23 making some written application under that heading.
24 Generally speaking, I think one's got to deal with this matter in
25 broad, common sense terms. It's the kind of information we would be
1 grateful to have.
2 Now, there's another sort of example of the sort of thing that can
3 happen. We've asked for statements and the Prosecution have given us part
4 of the statement, and then when we've asked further, they've given us the
5 full part of the statement, having thought about it again, and the full
6 part also contains some exculpatory material. I don't think I need be too
7 specific about it, but that sort of thing has been happening.
8 Now, I have no wish to take up the time of this Chamber with
9 further examples. In my respectful submission, the position is this: The
10 Prosecution might reasonably be expected to do more than they have done to
11 assist the Defence by complying with their obligations under whatever
12 Rule, provided these requests are reasonable, and I hope they are. When
13 they say at paragraph 15 of their response that this is an ill-disguised
14 effort to delay the commencement of the Defence case and avoid the
15 reciprocal disclosure obligation set forth in Rule 66(B) and 67(C), we
16 reply, What reciprocal disclosure Rules are we not complying with? We
17 can't be expected to give them our client's proof. We can't be expected,
18 nor are we required by any Rule, to give them the statements of witnesses
19 we're calling.
20 They speak of the interests of justice, but that point is that
21 they've either got evidence which might help the Defence, according to
22 their obligation, or they haven't. If they have, they must disclose it,
23 not give reasons why they shouldn't disclose it. Presumably they have got
24 material they could further disclose or they wouldn't have wasted their
25 time giving reasons why they shouldn't disclose it.
1 So that's my application. I don't make it with any degree of
2 unpleasantness. As I say, I don't accuse the Prosecution of deliberately
3 doing anything other than making a response which says, "We don't agree
4 with the motion," when there must be some material which they could access
5 or might access if they made a bit more effort. And it's not necessary
6 for there to be any delay in the trial. There isn't any necessity to go
7 into vast expense. There must be, along the lines that I've indicated,
8 and I could even indicate more but I've kept the application reasonably
9 short, that they could just make that final additional effort. And since
10 they seem to be reluctant, by their response to my motion, to make that
11 effort, I ask the Court to give a ruling that they should.
12 JUDGE ROBINSON: Thank you, Sir Ivan.
13 Mr. Ryneveld.
14 MR. RYNEVELD: At the outset, Your Honours, the Prosecution does
15 rely on our response, in which we have attempted to thoroughly address the
16 issue raised by my learned friend in his motion. I might also say that we
17 have in this case bent over backwards to provide not only my learned
18 friend, as counsel for Kolundzija, but for all counsel in these
19 proceedings, full disclosure, full disclosure under Rule 68. We have gone
20 beyond perhaps traditional practice and provided documentation to him,
21 over and above what we would normally be required by the Rules to do.
22 What my friend is attempting to do, with the greatest of respect,
23 is to expand his concept of Rule 68 much beyond what Rule 68 actually
24 envisages. He wants a broad trawl through the Prosecution's files on all
25 matters, whether relevant or not, with the greatest of respect, and that
1 is -- the jurisprudence of this Tribunal has been cited as being an
2 indication why there are particular Rules beyond Rule 68 if he wants the
3 documents that he's looking for that go beyond the Prosecution's
4 obligation under Rule 68, if he wants to look at everything we have,
6 Rule 67 is the consequence of an application under Rule 66(B).
7 Now, my friend says, "Well, we've asked for it. It doesn't matter under
8 what basis we've asked for it, but the general spirit is to the effect
9 that they should give us everything." The purpose for Rule 66(B) is that
10 there is a concomitant, reciprocal disclosure under Rule 67. Now, we have
11 asked for my friend that if he wants to invoke Rule 66(B) and Rule 67, to
12 do that in writing. What they have done is they have put it under the
13 heading of Rule 68. The Prosecution is acutely aware of its ongoing
14 obligations under Rule 68 and we suggest to this Court that we have
15 discharged those obligations continually. After our motion of the 31st of
16 July, we have continued to look for particular documents, and as documents
17 have come to our attention, we have disclosed those.
18 When my friend has asked for something about a Dragan Kulundzija,
19 not Kolundzija, born in 1966, we have provided him with documents since
20 the 31st of July, when we filed our motion. We have a number of documents
21 which were contained in the handwritten note which is appended to our
22 response that we said that we would look into, and despite the fact that
23 this motion was outstanding, we have attempted to comply with those where
24 the Defence has suggested that this might be something under Rule 68.
25 THE INTERPRETER: Please slow down for the interpreters. Thank
2 MR. RYNEVELD: I'm sorry to the interpreters for speaking too
4 The other point is that my friends seem to want us to either
5 negative the existence of documents by saying, "No, we do not have
6 evidence of this nature." Our obligation is to provide them with
7 documents that we know or the existence of material that is there. We
8 have given them the existence of material. Where we do not have existence
9 of material, my friends seem to want us to say, "There are no such
11 We cannot -- there is no obligation on us to do that, with the
12 greatest of respect, and what my friends want us to do is to somehow
13 negative, or prove the negative, so they can then submit to the Court that
14 no such documents exist. With the greatest of respect, my understanding
15 that this Court will look at is evidence presented, not the absence of
16 evidence presented, and the decision will be based obviously on evidence,
17 properly admissible evidence, before this Court.
18 In any event, my friend, just as an example, talks about Crisis
19 Staff documents, about conditions at Keraterm. My friend seems to suggest
20 because those documents may have been seen by them in the Omarska case,
21 that it would be reasonable to expect that documents like that would be in
22 Keraterm. We have checked. We have no knowledge of documents of that
23 nature. And it may be that the way in which seizure of documents with
24 respect to Omarska may have produced documents which are not available to
25 us on a similar seizure which may or may not have happened regarding
1 Keraterm. In other words, we don't -- we can't say that the documents
2 don't exist somewhere, but we don't know about them. And when I say, "We
3 don't know about them," they may not be in the possession of the Office of
4 the Prosecutor. It has to be the existence of evidence or of material
5 that we know about. And I appreciate that "we" would be the royal "we,"
6 the Office of the Prosecutor, not just our particular trial team. I'm
7 aware of that.
8 In sum, the Prosecution is acutely aware of our ongoing
9 obligations, not only at this stage but that continues even after trial,
10 to provide documents or evidence or material that we know to be of an
11 exculpatory nature, and we will continue to live up to that obligation.
12 If my friend wants to invoke, in writing, Rule 66(B), let him do so. As I
13 say, we rely on our motion and our response, and rather than go through
14 the entire document again, it speaks for itself. Thank you.
15 MR. LAWRENCE: May I briefly respond to that, Your Honour?
16 JUDGE ROBINSON: Yes.
17 MR. LAWRENCE: My learned friend spoke of material which may not
18 be in the possession of the Prosecution. That's our point. If it may be
19 in the possession of the Prosecution, then we should know about it. We're
20 clearly not on a fishing expedition. I've given reasons for submitting
21 that there may be good cause for thinking that the Prosecution are in
22 possession of certain documents. I'm not asking for a trawl at large. If
23 we should have made an application in relation to one particular aspect of
24 this with regard to Dragan Kolundzija under Rule 66 and not under Rule 68,
25 in my respectful submission, that's a technicality. It's all swallowed up
1 under Rule 68.
2 JUDGE ROBINSON: I don't think it's a technicality, Sir Ivan.
3 It's very important, because 66(B) triggers an obligation under 67(C).
4 It's not a technicality at all.
5 MR. LAWRENCE: If, in fact, under Rule 66(C) the Prosecution have
6 such information which is contrary to the public interests for them to
7 produce, that's another matter, and that they should make clear to the
8 Defence as the reason why they're not investigating it. I don't
9 understand that to be the reason why they're objecting. Of course the
10 Defence can have little to say on the question of matters which are
11 contrary to the public interest, but I can't conceive of any reason why
12 any statements taken about a man called Dragan Kolundzija at Omarska or
13 Trnopolje are necessarily going to be contrary to the security interests
14 of any state.
15 So, Your Honour, I'm not saying I'm right in not having a written
16 application. I'm merely saying this is one of the many details, some of
17 which - most of which, perhaps - I've referred to in the course of my
18 application to Your Honour. And in my respectful submission, whether we
19 should have filed it under Rule 66 or Rule 68 doesn't affect the
20 fundamental requirement of the Prosecution to divulge any material,
21 subject to it being contrary to the security interests of any state, which
22 may be of assistance to the Defence.
23 As to the other point, I think we are entitled, are we not, to be
24 able in due course to say to the Court: The Prosecution have told us that
25 they have undertaken a thorough investigation of whether, for example,
1 there are any documents which show that Kolundzija had the power to
2 dismiss or punish people, as a shift leader. And there aren't any. The
3 Court can assume there aren't any. The Prosecution have made an admission
4 that they have made a thorough search.
5 Certainly in my jurisdiction that's a perfectly reasonable request
6 to make of the Prosecution, that they make an admission in any area where
7 evidence is unnecessary to be called which may be of advantage to either
8 side, and in this case to the Defence. They can say no, but they can't
9 carry on an argument which says that they're not under any obligation to
10 make such a decision which might be helpful. If they refuse, then they
11 refuse, but I make that point for all it's worth.
12 In my respectful submission, what my friend has said in reply
13 isn't a sufficient answer to my application.
14 JUDGE ROBINSON: Thank you, Sir Ivan.
15 [Trial Chamber confers]
16 JUDGE ROBINSON: We'll consider the arguments that have been
17 raised and give a ruling on this by Wednesday.
18 MR. LAWRENCE: Wednesday? Will the Court want to sit on Wednesday
19 to do this?
20 JUDGE ROBINSON: No, we will not be sitting on Wednesday, so we
21 will give it by Thursday, yes.
22 If there is no other matter, then we are adjourned until
24 --- Whereupon the hearing adjourned at 10.39 a.m.,
25 to be reconvened on Thursday, the 30th day of
1 August, 2001, at 14.30 p.m.