Tribunal Criminal Tribunal for the Former Yugoslavia

Page 856

1 Tuesday, 26 June 2001

2 [Pre-Trial Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.00 p.m.

6 JUDGE ROBINSON: Will the Registrar call the case, please.

7 THE REGISTRAR: Case number IT-95-9-PT, the Prosecutor versus

8 Blagoje Simic, Milan Simic, Miroslav Tadic, and Simo Zaric.

9 JUDGE ROBINSON: May we have the appearances.

10 MR. DI FAZIO: Good afternoon, Your Honours. My name is Di

11 Fazio.

12 THE INTERPRETER: Microphone, please.

13 MR. DE FAZIO: I appear for the Prosecution together with my

14 learned friend

15 Ms. Reidy, who is on my right. On my left is Diane Boles, who is the case

16 manager in this particular matter.

17 JUDGE ROBINSON: Thank you, Mr. Di Fazio.

18 For the Defence.

19 MR. PANTELIC: Good afternoon, Your Honours. Igor Pantelic

20 Defence counsel on behalf of Mr. Blagoje Simic. Thank you.

21 MR. ZECEVIC: Good afternoon, Your Honours. Slobodan Zecevic and

22 Ms. Catherine Baen for Milan Simic.

23 MR. LUKIC: Good afternoon, Your Honours. Novak Lukic for

24 Mr. Miroslav Tadic.

25 MR. PISAREVIC: [Interpretation] Your Honour my name is Borislav

Page 857

1 Pisarevic on behalf of the defence of Simo Zaric.

2 JUDGE ROBINSON: Thank you very much.

3 There are a number of matters which we have to raise and consider,

4 and in respect of some of them, make a decision on for this Pre-Trial

5 Conference.

6 The first matter that I have concerns the Prosecution, and it is

7 that the Chamber observes that you have only one charge in Count 3, under

8 Article 2. That's the grave breach charge. You have, apparently,

9 withdrawn all the other grave breach charges.

10 Now, in light of the fact that the same conduct which is the

11 subject matter of the grave breach Article 2 charge is also the subject

12 matter of another charge under Article 5, crimes against humanity, the

13 question arises, firstly, whether or, rather, why you have retained this

14 single charge and whether in light of the fact that the same conduct is

15 the subject matter of another charge, whether you would not wish to

16 consider either dropping the grave breach charge or if you decide to keep

17 it, then to drop the charge under Article 5 in respect of crimes against

18 humanity.

19 MR. DI FAZIO: Thank you, Your Honour. Do I understand the

20 Tribunal to -- the Chamber to want a response from me on this matter right

21 now? Because naturally I would prefer to consider my position before

22 addressing the Chamber on the matter. It catches me somewhat by

23 surprise. I didn't expect to have to deal with this issue this afternoon,

24 and I would prefer to be able to consider the matter and take counsel

25 with my colleagues on the issue.

Page 858

1 I'm sure that if the Chamber were minded to grant me some time, I

2 could provide a response within a very short period of time.

3 [Trial Chamber confers]

4 JUDGE ROBINSON: Yes, Mr. Di Fazio. The Chamber will give you a

5 week in which to provide a response on this.

6 MR. DI FAZIO: Yes. I'm grateful to the Chamber. I have noted

7 the comments and I will make sure the matter is attended to swiftly.

8 JUDGE ROBINSON: You might want to look at the Krnojelac case in

9 which the same issue arose. And when it was brought to the attention of

10 the Prosecutor, they decided to withdraw the grave breach charge. Of

11 course you're not obliged to do that.

12 But another matter for you to consider is the recent development

13 in the Tribunal's jurisprudence relating to cumulative charges, because it

14 is likely that in any event, in the -- ultimately it would be one or the

15 other.

16 MR. DI FAZIO: Yes.


18 MR. DI FAZIO: I understand the comments of the Chamber and with

19 respect, I think it's an entirely appropriate matter to address now at

20 this point, and I have no trouble with providing a response within a

21 week.

22 JUDGE ROBINSON: Thank you, Mr. Di Fazio.

23 MR. DI FAZIO: The only other that matter perhaps I should raise

24 is the method of that response. Does the Chamber envisage a motion or

25 some other method of communication of my view or the Prosecution's view on

Page 859

1 this issue?

2 [Trial Chamber confers]

3 JUDGE ROBINSON: It would be by way of a written response to the

4 Chamber's comments on this matter.

5 MR. DI FAZIO: Yes.

6 JUDGE ROBINSON: The next matter relates to Blagoje Simic, and

7 here I'd like to speak to the counsel for Mr. Blagoje Simic.

8 I observe, Mr. Pantelic, that in the joint statement of facts in

9 respect of which there was a stipulation by both the Prosecution and the

10 Defence, this was filed on the 27th of April. It is stated that

11 Blagoje Simic was and here I quote: "From the 4th November 1991, through

12 at least the 30th of November 1992, was the deputy of the assembly of the

13 self-declared Serb autonomous region of Northern Bosnia." End of

14 quotation. But we observed in the pre-trial brief filed by Mr Simic that

15 he takes the position that he was not the deputy president of the -- yes.

16 I'm sorry. I was saying that I observe that in his pre-trial brief, Mr

17 Simic takes the position that he was not the deputy president of the

18 assembly of the Serb autonomous region of Northern Bosnia.

19 The purpose of these joint statements is to limit the number of

20 issues by way of agreement, and if you have -- if you have already agreed,

21 as a matter of fact, that he was the president, it is incomprehensible

22 that in the pre-trial brief it should be argued that he was not.

23 MR. PANTELIC: Yes, Your Honour. I will give you the answer.

24 THE INTERPRETER: Microphone to the counsel, please.

25 MR. PANTELIC: Yes, Your Honour. I will try to

Page 860

1 give you an answer.

2 In fact, the further document that you are referring to is the

3 document, I suppose, from, I think, several years ago, 13th of November.

4 JUDGE ROBINSON: 1992, yes. Yes.

5 MR. PANTELIC: Yes. I discussed this issue with the -- with

6 the -- my client, and it's obviously probably some error in process of

7 discussion with the Prosecutor's office. So that was the case in filing

8 the joint statement dated April 27th.

9 After that, during the conversation with my client and conference

10 related to clarification of certain facts and issues, the position of

11 Blagoje Simic was that -- I mean according to the result of our

12 conversation, that he was not.

13 JUDGE ROBINSON: That he was not.

14 MR. PANTELIC: So it's just a matter of timing. Because we were

15 not able to discuss this matter, this issue, prior to our pre-trial

16 brief. It was by the end of April when we discussed this matter.

17 JUDGE ROBINSON: Well, that's something for the Prosecutor to

18 note, but it -- the Chamber did see that apparent inconsistency. So the

19 trial will then proceed on the basis that he was not the president.

20 MR. PANTELIC: Yes. Yes, Your Honour. That would be the case.

21 JUDGE ROBINSON: Thank you very much.

22 MR. PANTELIC: You're welcome.

23 JUDGE ROBINSON: I turn next to the question of exhibits, and it's

24 a matter now for the Prosecutor.

25 Mr. Di Fazio, the Prosecution has provided a list of 213 exhibits,

Page 861

1 divided into seven categories, but nothing has been made to link the

2 various exhibits to the charges in the indictment, and this is, in fact,

3 required by the Rules.

4 MR. DI FAZIO: Yes. Yes. I take Your Honour's point. Your

5 Honours are concerned to have some sort of document or linkage between

6 each individual item on the exhibit list, whether it be a document or a

7 map or whatever, and its relevance to a particular portion of the

8 indictment.

9 JUDGE ROBINSON: Precisely. Precisely. The whole idea is to

10 facilitate the trial process.

11 MR. DI FAZIO: Yes. Well, I regret that has not been done, if

12 Your Honours please, and if you wish me, and I take it you do wish me to

13 prepare such a document, again it's something --

14 JUDGE ROBINSON: Yes, we actually require you to do it because the

15 rules require it.

16 MR. DI FAZIO: Yes.

17 JUDGE ROBINSON: And we'll give you a time period of 28 days --

18 MR. DI FAZIO: Thank you.

19 JUDGE ROBINSON: -- in which to do this.

20 MR. DI FAZIO: Thank you. I'm grateful to the Chamber. I'm sure

21 that that can be accomplished easily in that time.

22 JUDGE ROBINSON: And the same thing can be done in respect of the

23 documents which have been admitted by way of pre-trial admission. There

24 are 129 documents, including transcripts of interviews with the accused,

25 and these were admitted without objection from the Defence, and again,

Page 862

1 these should be linked to the charges.

2 MR. DI FAZIO: Yes.

3 JUDGE ROBINSON: So if you would see that that is done as well.

4 MR. DI FAZIO: That, of course, can be done. In respect of the

5 interviews, would the Chamber like an analysis, essentially, of each

6 interview and the matter to which it relates in the indictment? Is that

7 the sort of --

8 JUDGE ROBINSON: Yes. That would be helpful, yes.

9 MR. DI FAZIO: Of course that will be attended to.

10 JUDGE ROBINSON: Thank you. Again now, Mr. Di Fazio, the question

11 of protective measures. Protective measures were granted in respect of

12 eight witnesses, witnesses A to C and E to I. At the Status Conference on

13 the 15th of May of this year, you told us that one of the protected

14 witnesses, Witness I, would not be called. Only two of the protective

15 witnesses now appear on the main witness list, that is, Witnesses A,

16 number 34, and G, number 35. Three protected witnesses, Witnesses C, E,

17 and F, appear on the reserve list but there is no mention of Witnesses B

18 and H, and the Chamber assumes from this that these two witnesses will not

19 be called.

20 MR. DI FAZIO: May I just consult my exhibit -- sorry, my witness

21 list.


23 MR. DI FAZIO: The assumptions was that which witnesses would not

24 be --

25 JUDGE ROBINSON: B and H, because they are not mentioned on the

Page 863

1 reserve list at all.

2 MR. DI FAZIO: No. They're not on the Prosecution's witness list,

3 and we don't intend to call them.

4 JUDGE ROBINSON: To call them. Thank you. Again, Mr. Di Fazio,

5 the next issue relates to witnesses whose evidence may be cumulative.

6 The Chamber did an analysis of the evidence of the witnesses, and

7 we have found 13 witnesses whose evidence may qualify as being cumulative.

8 MR. DI FAZIO: May I just ask Your Honour at this point, when you

9 say cumulative, do you essentially mean repetitive?

10 JUDGE ROBINSON: I mean repetitive. Yes, I mean repetitive.

11 I'm going to read out fairly slowly the witnesses and the

12 evidence. What the Chamber proposes to do is not to take a decision now

13 as to the deletion of these witnesses but merely to bring the matter to

14 your attention so that you can consider it, and we would give you a time

15 period of two weeks in which to report back to us the result of your

16 examination.

17 MR. DI FAZIO: Thank you.

18 JUDGE ROBINSON: I will read out the witnesses and just a very

19 brief summary of the evidence which is cumulative, repetitive.

20 The first is Witness number 3. She addresses the treatment of

21 non-Serbs after the take-over, question of looting, an attack on the

22 mosque, expulsion from home, forced transfer of assets, arrest and

23 beatings of husband, events at the TO building, forced labour, and the

24 attendance of the accused Zaric at meetings and the involvement of Tadic

25 in exchanges and expulsion.

Page 864

1 Then Witness number 4, a doctor who addresses the condition of

2 detainees in various locations and involvement of Tadic in exchanges and

3 expulsion.

4 You don't have to write them down because I will have the senior

5 legal officer hand you what I am reading.

6 MR. DI FAZIO: Yes, I am grateful to Your Honour.

7 JUDGE ROBINSON: Witness number 7, a Muslim male who can testify

8 as to the takeover of Bosanski Samac, the treatment of non-Serbs

9 afterwards, the involvement of Tadic and Zaric in looting, forced labour,

10 and involvement of Tadic in exchanges, expulsion.

11 Number 8 is a woman who can testify as to the treatment of

12 non-Serbs, the arrest of her son, the involvement of Tadic and Zaric in

13 looting, and the involvement of Tadic in exchanges and expulsion.

14 Number 10 is a female teacher who will testify as to the treatment

15 of non-Serbs, the appropriation of assets, the involvement of Zaric in

16 forced labour, and the involvement of Tadic in exchanges and expulsion.

17 Number 11 is a woman who will testify or who can testify as to the

18 treatment of non-Serbs, arrests, forced labour, expulsion from home, and

19 the involvement of Tadic in exchanges and expulsion.

20 Number 16, a Bosnian Muslim mobilised into the Serb army. He will

21 address issues of forced labour, detention, and the involvement of Zaric

22 in the army.

23 Number 18, an elderly woman who can address the arrest and

24 detention of her husband, destruction of local mosque, involvement of

25 Zaric in forced labour, and involvement of Tadic in exchanges and

Page 865

1 expulsion.

2 Number 19 is a widow who can testify as to the treatment of

3 non-Serbs, looting, forced labour, and expulsion from home, the

4 involvement of Tadic in searching for weapons.

5 Number 26 observed meetings of the 4th Detachment at Tadic's cafe

6 attended by Zaric, was arrested, and can testify as to the involvement of

7 Tadic in exchanges and/or expulsion.

8 Number 30, Bosnian Muslim married to a Bosnian Croat, can testify

9 as to the takeover of Bosanski Samac, involvement of Tadic and Zaric in

10 search of apartment for weapons, arrest and detention, involvement of

11 Tadic in exchanges and expulsion.

12 And number 33, a Muslim drafted into the Serb army, who is in a

13 position to testify as to forced labour, looting, and the role of Zaric.

14 Those are the 13 witnesses whose evidence may be cumulative. You

15 should examine their testimony and report back to us in two weeks as to

16 whether they will be retained on the list.

17 The next issue again concerns you, Mr. Di Fazio. You have listed

18 two investigators as potential witnesses, numbers 36 and 37. These

19 investigators will give evidence of interviews with witnesses, collection

20 of documents, and other general matters. The Chamber takes the view that

21 it's not necessary to have these investigators testify. Accordingly, we

22 will order that their names be deleted from the witness list.

23 Next, on your reserve witness list, which has 15 witnesses, we

24 observe that most of the witnesses address general issues, but there is

25 one, number 40, a major in the TO, the territorial army, he is in a

Page 866

1 position to provide direct evidence as to the role of one of the accused

2 and some limited evidence related to another.

3 The Chamber's position is that this person should actually

4 testify, and so we will, in exercise of the powers we have under the

5 Rules, require that this person be listed as a witness.

6 MR. DI FAZIO: Yes.

7 JUDGE ROBINSON: Again, in relation to the reserve witnesses, all

8 but two of the reserve witnesses have some direct knowledge of the

9 activities of the accused. Those are numbers 48 and 50.

10 Now, those two could either be removed from the list on the basis

11 that they're not necessary for -- that their testimony is not necessary

12 for the proceedings, or if the view is taken that their testimony is

13 necessary, then their testimony could be let in by way of Rule 92 bis.

14 That's numbers 48 and 50.

15 MR. DI FAZIO: Yes, because they don't go directly to the acts of

16 the accused. Yes.

17 JUDGE ROBINSON: Yes. But what would your position be then, that

18 they would -- their evidence could be adduced by way of Rule 92 bis?

19 MR. DI FAZIO: Yes.

20 JUDGE ROBINSON: Or you would want their evidence to be in?

21 MR. DI FAZIO: Well, the position at this stage, bear in mind,

22 Your Honours, that I'm hearing what you say now for the first time, but my

23 position at this stage is that we would want their evidence in.


25 MR. DI FAZIO: But I'm mindful of what the Chamber has said, and

Page 867

1 of course I would review the evidence of those two particular witnesses,

2 bearing in mind the comments that you've made with respect to the other

3 witnesses in the spirit -- and in a spirit of trying to cut down the

4 witness list wherever possible.

5 JUDGE ROBINSON: Thank you, Mr. Di Fazio.

6 The next matter again concerns the Prosecution. On the 20th of

7 June, we had required that the Office of the Prosecutor disclose all

8 interviews with Mr. Todorovic to the Defence. Can you say whether those

9 disclosures have been made?

10 MR. DI FAZIO: This has been done.

11 JUDGE ROBINSON: Has been done. Yes.

12 There is a motion that was filed recently by the Prosecutor to

13 have the expert testimony of Mr. Donia. We grant this motion.

14 MR. DI FAZIO: I'm grateful to the Chamber.

15 JUDGE ROBINSON: There is also a motion filed recently by the

16 Prosecutor for the admission of transcripts. We can't dispose of that

17 now, but two issues arise.

18 In paragraph 5 of your motion, you say that the basis of the

19 motion is that it is in support of this adjudicated fact. The reference

20 here is to the question of the international status of the armed conflict,

21 and you refer in paragraph 4 to evidence in two other cases, Tadic and

22 Celebici.

23 It's not clear to the Chamber whether you're using the term

24 adjudicated fact there as a term of art, because if it is an adjudicated

25 fact, then there is a procedure, a discreet procedure under the Rules for

Page 868

1 the reception of adjudicated facts, in Rule 94, and for that reason, you

2 will not need to utilise the procedure for transcripts under Rule 92 bis.

3 So I'm not clear whether the term "adjudicated facts" there was

4 used very loosely.

5 MR. DI FAZIO: I think it can only be read as a loose -- in a

6 loose sense. It would read just as well in support of this alleged fact.

7 In fact, this matter has a history going back to 1998 in this case, when a

8 motion was laid before the Court seeking precisely that the Court take

9 judicial notice or accept as an adjudicated fact that there was an

10 international armed conflict at the relevant times in Bosnia and

11 Herzegovina, and the Trial Chamber declined to make such an order.

12 Subsequently there was the appeal, the appeals, I should say, in both

13 Celebici and Tadic in which that issue was commented upon. But I think

14 the position of the Prosecution has to be here that this is an alleged

15 fact and something that the Prosecution seeks to prove and seeks to prove

16 through the admission of this material that's the subject of the 92 bis

17 motion.

18 So it's not really used in the sense of -- as a term of art.

19 JUDGE ROBINSON: Yes. Thank you, Mr. Di Fazio. In that case

20 then, in the light of that clarification, what remains for us to do is to

21 set a date for the hearing.

22 [Trial Chamber confers]

23 JUDGE ROBINSON: The hearing will be on Wednesday, the 25th,

24 p.m. That's at 2.30, 2.30 p.m.

25 The last matter but perhaps the most important has to do with the

Page 869

1 duty that the Chamber has under the Rules to fix a time for the

2 presentation of the Prosecution case.

3 I understand, Mr. Di Fazio, that you had estimated a period of

4 eight weeks.

5 MR. DI FAZIO: Well, if Your Honours please, given what's

6 transpired this afternoon, it's going to be -- it's going to be very

7 difficult for me to give you any reasonably accurate estimation of trial

8 length particularly because I don't know how many witnesses ultimately I

9 will be calling.

10 What I had done, in an effort to try and get a handle or a fix on

11 the period of time for the Prosecution case, by that I mean evidence in

12 chief and cross-examination, was to go through the list and work out the

13 period of time required for each witness, and using both the lower and the

14 higher estimate that was contained in our witness list that was provided

15 to the Court under Rule 65 ter, I believe it is. And for various reasons

16 that I don't want to go into now, but for various reasons I came up with

17 47 witnesses. Now I don't know if it's going to be 47 witness because of

18 what -- again I repeat, because of what's been said today.

19 On that basis, on the basis of 47 witnesses, I came up with a

20 figure, and I hope this is not too alarming to the Chamber, on the outer

21 limit of 102 days, sitting days, and this is on the basis of four hours a

22 day, and on the basis of the lower estimate, in the vicinity of 95.

23 Now, if that were to -- if those estimates are anywhere near

24 correct and we do start on September the 10th, that will take us to at

25 least the beginning of January if not to the middle of January, and

Page 870

1 that's --

2 JUDGE MAY: Mr. Di Fazio, experience here in practically every

3 case is that the rate is one witness per day going through the

4 Prosecution. It's very slow, but that seems to be the basis.

5 So on that basis, although it's not clear precisely how many

6 witnesses you're going to call, and although clearly one or two will

7 require more extensive cross-examination and examination-in-chief,

8 nonetheless, there are a number who will, obviously, be quicker. It would

9 seem to be an accurate estimate to say that you will have something in the

10 region of 45 or so witnesses, 40 or so witnesses, perhaps more, perhaps

11 less, and you'll need something like 40 or so days on that basis.

12 MR. DI FAZIO: At -- when Your Honour says a day, do you mean a

13 full sitting day or four hours a day?

14 JUDGE MAY: A day. A day. The fact that you are having four

15 hours isn't much less than the usual sitting day. It's about half an hour

16 less, in fact.

17 MR. DI FAZIO: Yes.

18 JUDGE MAY: It will be an early start.

19 MR. DI FAZIO: Well, I defer to Your Honours' obviously greater

20 experience in these matters than I. That estimate was the best that I

21 could do in the circumstances. If the Chamber takes the view that it is a

22 pessimistic view on my part of the amount of time required, then naturally

23 I take on board what the Chamber says. But if that be the case, then the

24 estimate really depends on the number of witnesses, and would that not be

25 a matter that could be or perhaps should be dealt with once that's

Page 871

1 crystallized, once we do know for certain how many witness was --

2 JUDGE ROBINSON: Yes. What the Chamber had in mind was with the

3 trial starting on the 10th of September, the Prosecution would have ten

4 weeks in which to present its case. So That would take the Prosecution's

5 case to the 16th of November.

6 MR. DI FAZIO: Yes.

7 JUDGE ROBINSON: And I think in the light of Judge May's analysis,

8 that is quite feasible, fairly feasible. Bear in mind, of course, that if

9 events arise which are unforeseen, you can always apply to the Trial

10 Chamber to vary, to extend the time.

11 MR. DI FAZIO: I'm grateful to the Chamber. If the Chamber

12 wishes, I'm happy to provide another estimate after the issue of the full

13 number of witnesses has been crystallised. Your Honour Judge May was

14 quite correct when he said that some of these witnesses will take longer

15 than others. I mentioned it may be of interest to perhaps only one or two

16 counsel or perhaps even only one Defence counsel, in which case the

17 cross-examination will presumably be a lot shorter than the

18 examination-in-chief. The substantial witnesses, however, are probably in

19 the order of about six or seven and may take a little longer than a day.

20 I hear what the Chamber says, and naturally the Prosecution will

21 make every effort to work within that framework, of course, and I'm

22 grateful to the Chamber for pointing out that the Prosecution is at

23 liberty to try to increase the period of time allotted to it if the need

24 arises.

25 I also offer, if it's of assistance, a later estimate perhaps at

Page 872

1 the next 92 bis motion, or perhaps within the period of time that's been

2 allocated to us to inform the Chamber of our position with respect to the

3 13 or so witnesses who -- that the Chamber thinks might provide repetitive

4 evidence. After I've settled that, I'm also happy to provide another

5 estimate, if that would be of benefit.

6 JUDGE ROBINSON: Yes. I think that would be sensible. So after you've

7 done your analysis, then at the Rule 92 bis hearing on the 25th of July,

8 we can review the position.

9 MR. DI FAZIO: Yes. I think that would enable the Chamber to --

10 will certainly enable the Prosecution to forecast whether or not there is

11 going to be any application to increase the amount of time allocated or

12 not.

13 JUDGE ROBINSON: Yes. So be it.

14 [Trial Chamber confers]

15 JUDGE ROBINSON: Are there any matters that the Defence would wish

16 to raise at this time?

17 MR. PANTELIC: No, Your Honours. I don't think at this time we

18 have something to raise with regard to the procedural matters. Thank

19 you.

20 MS. BAEN: Your Honours, on behalf of Mr. Milan Simic, we would

21 like to make a formal request under Rule 68 for the Prosecution to

22 disclose any exculpatory evidence. Apparently the Prosecutors have been

23 great about providing that information in the past, but just for purposes

24 of the record, we would like to make that formal request under the Rules.

25 JUDGE ROBINSON: Yes. That's noted.

Page 873

1 MS. BAEN: Also, Your Honours, under Rule 67, the Rule with

2 respect to reciprocal disclosures, the language in the Rule says that --

3 well, first of all, the Defence and the Prosecution have been in the

4 process of reciprocal disclosure.

5 The language in the Rule says that we are to provide any of this

6 discovery as soon as practicable and before the commencement of trial.

7 And since the Rule is sort of somewhat vague as to when we should disclose

8 this information, we're asking for some guidance from the Court as to when

9 we should comply with this Rule. In other words, when do we have to give

10 it to the Prosecution, within seven days, 14 days? And we would like to

11 request that the Court give us some sort of guidance with respect to this

12 Rule so that we don't have a problem later on when we try to get these

13 matters into evidence and then the Prosecutors may complain that we didn't

14 give it to them as soon as practicable.

15 You understand my request, Your Honour?

16 JUDGE ROBINSON: Yes, I understand. It says "... prior to the

17 commencement of the trial," and the trial date has been fixed.

18 MS. BAEN: Yes, Your Honours. However, we feel that that language

19 might be vague also because at this point we don't know really what's

20 going to happen during the Prosecutor's case. Therefore, if there is some

21 new evidence that comes into our possession that we would like to use when

22 we start our case in chief, we would like to know what the requirements

23 are respect to disclosure to the Office of the Prosecutor.

24 My understanding is we don't have to -- we are not required to

25 tell the Court what evidence we intend to prove at trial until the Defence

Page 874

1 conference, the pre-Defence conference. Is that correct, Your Honour?

2 [Trial Chamber confers]

3 JUDGE ROBINSON: It's obviously difficult for the Chamber to

4 determine an issue of this kind in a vacuum. So I don't intend to make a

5 ruling on the point that you have raised. I would, however, indicate that

6 the procedure under Rule 67 is a special procedure, and it's special for a

7 variety of reasons. And if you have an issue which arises in a practical

8 way during the trial, then I think you have to make application and we'll

9 deal with it.

10 MS. BAEN: Thank you, Your Honour. We're not trying to create any

11 problem here, we're just trying to show some good faith and avoid problems

12 in the future.

13 JUDGE MAY: You're not referring to a special defence at all, an

14 alibi or anything of that sort?

15 MS. BAEN: No, Your Honour, no special defence. We're just merely

16 complying with the Rules with respect to reciprocal discovery. If there

17 is some problem in the future, we don't want to be prevented from using

18 that evidence if it is viewed that we are not in compliance with the

19 reciprocal discovery rules, that's all. And we're not trying to create a

20 problem here, we're just trying to be careful, that's all.

21 JUDGE ROBINSON: Yes, I understand that.

22 JUDGE MAY: Rule 67(D) might answer the question.

23 MS. BAEN: So that does answer the question somewhat. I guess the

24 question is what "promptly notify" means. No one is going to be able to

25 tell that. We'll just do the best we can.

Page 875

1 Oh, we would like to make a formal request, I guess it's a joint

2 Defence request, that the Prosecutors list the order in which the

3 witnesses will testify and the evidence will be produced. We understand,

4 Your Honours, it's not required by the Rules, but it's my understanding

5 that this practice has happened in other trials and we think it would be a

6 lot easier and make the trial go faster.

7 JUDGE ROBINSON: Yes. As a matter of practice, it is done.

8 MR. DI FAZIO: Yes. As I stand here, the attitude of the

9 Prosecution is that, of course, anything to assist, A, the Chamber and the

10 Defence and would also assist the Prosecution as well to have such a list,

11 but I don't want to be bound in -- bound or straitjacketed perhaps is a

12 better word, by any such list. Obviously in any trial there are going to

13 be problems getting witnesses, the order of witnesses, and sticking to it

14 in an absolute sense might eventually cause problems. But I would

15 certainly provide an initial list and one to which the Prosecution will

16 use its best endeavours to stick to in order to provide a guide both to

17 the Chamber and to the Defence.

18 JUDGE ROBINSON: Yes. Thank you. That's -- I think that's good

19 enough. That's good enough. You provide a list, and as the trial

20 develops, you may have to make changes. This would apply to the Defence,

21 too, when the Defence presents its case.

22 MS. BAEN: Your Honours, if I may, we have one more issue.


24 MS. BAEN: As the Court is aware, the Trial Chamber is aware, our

25 client, Mr. Milan Simic, is a paraplegic and has serious medical

Page 876

1 problems and the Court graciously granted shorter trial days because of

2 the situation.

3 Recently, within the last month or so, Mr. Simic has been examined

4 by his physicians again, and his medical situation may be deteriorating a

5 little bit. We are not filing a motion at this time, but we may be

6 forced, if he gets worse, to file a motion for this Court, based on his

7 physician's examination, to maybe, I hate to say, further shorten the

8 trial days. We hope that's not the case but -- we hope that's not the

9 case, Your Honours, because we want this trial to go as expeditiously as

10 possible, as everyone else does, but if our client gets -- if his medical

11 situation worsens, that we feel we have an obligation to go ahead and

12 present the Court with a motion and the supporting affidavits or

13 information from the physician.

14 JUDGE ROBINSON: You have an obligation to act at all times in the

15 best interests of your client.

16 MS. BAEN: And I think that's it for the Defence. Thank you.

17 JUDGE ROBINSON: Thank you. Any other matters? Mr. Di Fazio?

18 MR. DI FAZIO: Yes, there is one matter I want to raise with the

19 Chamber, if I may, and that concerns disclosure. Firstly, I just want to

20 state that as far as the Prosecution is concerned, disclosure has now been

21 completed. This afternoon we will provide about five further statements to

22 the Defence. We have good reason for believing that that material has

23 already been disclosed, but as an abundance -- from an abundance of

24 caution, we'll hand it over again.

25 So generally speaking, disclosure under 66 and 68 has been

Page 877

1 completed by the Prosecution.

2 There is, however, one matter, and that's the question of

3 reciprocal disclosure under Rule 67. In -- on March the 2nd, 1998,

4 counsel for Mr. Milan Simic, Mr. Simo Zaric, and Mr. Miroslav Tadic wrote

5 to the Office of the Prosecutor seeking, pursuant to Rule 66(B),

6 disclosure.

7 Now, 66(B) refers, as far as I can see, to inspection of

8 documents, photographs, tangible objects, and so on.

9 The issue was briefly raised in one of the Status Conferences in

10 this case later in 1999, but I have been unable to find any orders made

11 consequent upon that request by way of letter.

12 Such a request having been made under 66(B), it seems to me that

13 it triggers 67(C), and the Prosecution is therefore entitled to inspect

14 any books, documents, photographs, and tangible objects which are within

15 the custody or control of the Defence and which it intends to use as

16 evidence at the trial.

17 It may be that much of 67(C) has already been complied with and

18 satisfied. It may be that our rights, the Prosecution's rights under

19 67(C) have already been satisfied by the simple fact of disclosure, but I

20 need to be satisfied about that completely, I submit, and it's that issue

21 that is concerning me and that I would like to have resolved.

22 I've not been able to find anything in our records indicating that

23 that inspection by the Prosecution of books, documents, photographs, or

24 tangible objects in the possession of those three defendants and which

25 they intend to use at trial has ever been conducted.

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Page 879

1 Would Your Honours just bear with me for one moment.

2 Is it seems to me that the matter was touched upon at a Status

3 Conference conducted on Friday, the 20th of November, 1998.

4 Now, if the Defence provide the Prosecution with an assurance that

5 such access will be granted or correct me and say that such access has

6 been granted in the past, a matter of which I'm not aware, then of course

7 that would satisfy the Prosecution. I'm not seeking any particular

8 orders, but the exercise of rights under 67 -- 67(C) is a matter that I

9 want to ensure either has been fully conducted or will be conducted.

10 JUDGE ROBINSON: Mr. Di Fazio, as I understand it, you're saying

11 that the Defence made a request of the Prosecutor pursuant to Rule 66(B),

12 and that request has been granted for them to inspect.

13 MR. DI FAZIO: Yes. Well, they made the request, and as far as I

14 can tell, nothing has ever transpired. Now, I just don't know the reason

15 for that. I can't find anything in the record, if Your Honours please, to

16 indicate that the Prosecution has availed itself of its rights under

17 67(C), and I therefore believe that it hasn't. And given the distance of

18 that request that was made in 1998, it seems to me that the Prosecution is

19 so entitled, and I'll make it clear for the record that I therefore do

20 wish to inspect -- the Prosecution wishes to inspect any books, documents,

21 photograph, or tangible objects that those three defendants intend to use

22 as evidence at trial.

23 It may be a non-issue. It may be that everything that they have

24 disclosed to us encompasses all of that material, I don't know, but I

25 need to be assured that the Prosecution's rights under that section are

Page 880

1 fully observed.

2 JUDGE ROBINSON: Mr. Pantelic, you have been in this case long

3 enough. The Defence did, in fact, request permission to inspect

4 books in the possession of the Prosecution?

5 MR. PANTELIC: That is correct, Your Honour.

6 JUDGE ROBINSON: Yes. And that, of course, triggers their right

7 under Rule 67(C) to inspect, books in the custody or control of the accused.

8 MR. PANTELIC: That is also correct, Your Honour. The thing here

9 is maybe this is a matter of clarification or interpretation. Literally

10 speaking, does it mean that we have to go to your office to inspect

11 tangible objects and the documents, or during the process of reciprocal

12 discovery, you provide with us certain documents? Because if the first

13 solution is reality, it is not done up to now, up to date. We've never

14 been in your office; we've never inspected your archives. But I must

15 admit that through all this process of reciprocal discovery, we will be

16 provided with a certain number of documents from the Prosecutor's side,

17 and I believe that the same will follow from the Defence side.

18 JUDGE ROBINSON: Well, I believe this is a matter that has to be

19 settled between the Prosecutor and the Defence, and you must determine the

20 extent to which Rule 67(C) is applicable. If it is applicable and you believe

21 you have a right under it which has not been exercised, then you may make

22 an application. But it seems to me that there are matters to be clarified

23 between the parties, and maybe it's a non-issue.

24 MR. DI FAZIO: That's, with respect, absolutely correct, of

25 course, Your Honour. And I don't want to necessarily create issues. It

Page 881

1 may be that -- I'm sure that the best way for us to deal with this matter

2 is for me to enter into negotiations or to confer with Defence counsel,

3 and I'm sure that we can both resolve the matter.

4 I felt it appropriate that I should at least raise the issue for

5 the purposes of the record. If I can resolve the issue with Defence

6 counsel, I'm hopeful that we can, that it may be that I don't need to

7 trouble the Chamber again on this the matter. But I just needed to raise

8 it for the purposes of establishing it as a concern. I hope that we will

9 be able to resolve it and that will be the end of the matter.

10 JUDGE ROBINSON: Thank you.

11 MR. PANTELIC: Thank you.

12 JUDGE ROBINSON: There being no other issues, we are adjourned.

13 --- Whereupon the Pre-Trial Conference adjourned

14 at 4.05 p.m.