Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5606

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.

Page 5607

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

9 reasons.

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

Page 5608

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

6 morning.

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

10 tomorrow.

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

Page 5609

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

13 Thursday.

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

Page 5610

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.

Page 5611

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

9 stated.

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

Page 5612

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

Page 5613

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

Page 5614

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.

Page 5615

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

23 case.

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

Page 5616

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

Page 5617

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

Page 5618

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

13 Kolundzija.

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

Page 5619

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

Page 5620

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.

Page 5621

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

Page 5622

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,

5 basically.

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

Page 5623

1 you.

2 MR. RYNEVELD: I'm sorry to the interpreters for speaking too

3 quickly.

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

10 documents."

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

Page 5624

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?


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

Page 5625

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,

Page 5626

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

23 Thursday.

24 --- Whereupon the hearing adjourned at 10.39 a.m.,

25 to be reconvened on Thursday, the 30th day of

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1 August, 2001, at 14.30 p.m.