Tribunal Criminal Tribunal for the Former Yugoslavia

Page 33037

1 Wednesday, 13 October 2004

2 [Status Conference]

3 [The accused entered court]

4 --- Upon commencing at 11.10 a.m.

5 [Open session]


7 MR. KAY: Your Honour, inquiries have been made in the short

8 adjournment. In this case, the witness is still here. He's at the hotel.

9 He requests a meeting with me this afternoon. But he believes that it

10 would be possible for him to return next Wednesday, and that would give

11 him sufficient time to speak to people, get the report, and come back.

12 It's clear he wants to talk to me about the issue, and I communicated that

13 I'd be able to see him this afternoon.

14 At the moment, we are uncertain, as I said, because of the

15 diplomatic channels concerning the two other scheduled witnesses for next

16 week. And there is a third witness who is being seen today. Ms. Higgins

17 is dealing with that. And that witness has made arrangements which, at

18 the moment, she would have been giving evidence on the Thursday. And she

19 is a person with a great deal of commitments that require her to perform

20 public duties. So the telephone call we got last night advising us of the

21 21st of October has put a spanner in our plans for the moment. So we are

22 trying to readjust the witness list accordingly.

23 JUDGE ROBINSON: If Mr. -- if the witness is able to come next

24 Wednesday --

25 MR. KAY: Yes.

Page 33038

1 JUDGE ROBINSON: -- would we be able to conclude his testimony on

2 Wednesday?

3 MR. KAY: I would try and take him in an appropriate period to

4 enable that. It's not an easy question for me to answer, because I don't

5 know what his materials are. In our discussion that we had on our last

6 meeting, I explained that we would probably take examples from his file

7 rather than go through the whole file, and he understood that. And this

8 needs to be --

9 JUDGE ROBINSON: I don't want you to work inappropriately.

10 MR. KAY: No.

11 JUDGE ROBINSON: But just bear in mind that I think Wednesday

12 would be the last working day next week.

13 MR. KAY: Yes. It's probably important for me to speak to him,

14 and at the moment, I'm sure that's what he's waiting for, dealing through

15 intermediaries always poses difficulties. As the Court knows, he was a

16 witness who was moved and was accommodating in that regard. But there is

17 an important aspect of his testimony that should be expressly dealt with,

18 in our judgement.

19 JUDGE ROBINSON: We'll hear him next week, Wednesday?

20 MR. KAY: Yes.

21 JUDGE ROBINSON: In the hope that we would be able to conclude his

22 testimony on Wednesday.

23 MR. KAY: Yes.

24 JUDGE ROBINSON: But if it isn't possible, then you should alert

25 him to that fact.

Page 33039

1 MR. KAY: I will. And if I can encourage another date in that

2 period, i.e., the Tuesday, I will do that. But I'm also dealing with

3 other issues in the frame -- that are unresolved and which are out of my

4 hands. And Ms. Higgins is attempting to deal with another matter to try

5 and put the pieces together.

6 JUDGE ROBINSON: Thank you, Mr. Kay.

7 Mr. Nice, do you have any --

8 MR. NICE: Nothing really to add, save to say that from what I

9 know of this witness, I can't immediately see that his evidence is

10 centrally relevant, if that's a way of describing it. I'm not going to

11 stand in the way of its being given, but it doesn't seem to me to have

12 central relevance. If, as I suspect, it's going to include a large list

13 of a number of dead and missing people, then obviously if there's

14 relevance in each and every one of those names and the details provided

15 about them, finishing it in a day might be difficult. If, on the other

16 hand, the generality of what he can speak about is all that's required and

17 it's not necessary for me to dissent to particulars, then it should be

18 easy to accommodate him in a day. I would ask Mr. Kay if he can, and I

19 realise he has difficulties, to provide us in advance with both the list

20 and, if he can, further detail of what the witness is going to tell us

21 about.

22 MR. KAY: For the record, as soon as I get any information, I

23 always pass it on to the appropriate channels so that this Court is as

24 prepared in the best sense for any hearing.

25 JUDGE ROBINSON: Well, let us proceed to the Status Conference

Page 33040

1 now, Mr. Kay.

2 MR. KAY: Yes.

3 Your Honour, in relation to this hearing, the Court has received

4 earlier an ex parte filing concerning details of witnesses. These details

5 are derived from the witness list submitted on behalf of the accused, and

6 in furtherance of that list, an identification of the most important

7 witnesses in relation to the Kosovo part of the trial.

8 The materials filed by us with the Trial Chamber on the 28th of

9 September are, of course, now subject to revision, because a greater

10 number of contacts has been made in relation to the availability of

11 witnesses for trial.

12 The assigned counsel have analysed the list that was filed with us

13 and called Annex A looking at the terms of the testimony of a number of

14 witnesses. In that collection, some 15 or so were identified as being,

15 rather than witnesses of fact, witnesses that would fit into the category

16 of being an expert witness, because although they may have personal

17 knowledge about some matters, their terms of testimony largely involved

18 giving opinion evidence as a result of their analysis of the matters that

19 concern the indictment against the accused.

20 I have submitted to the Trial Chamber a reworking of that list,

21 which has been called Annex B in that filing of the 28th of September.

22 And as I say, at today's date, that has been subject to further revision,

23 and it is my intention to re-file that with the Trial Chamber so that you

24 are kept abreast of developments. That, of course, will take a little bit

25 of time over today and tomorrow, but I can tell you what the generality is

Page 33041

1 of the situation concerning the Defence witnesses.

2 In Annex C of that document is a table indicating witnesses who

3 have been contacted, derived from the Kosovo list, as well as some aspects

4 of the general lists, 28th of September, 2004 is the filing. I'll just

5 give Your Honour -- Your Honour will recollect the annexes that I filed,

6 which is to be the form of production of information by assigned counsel

7 during the defence stage of the trial. Annex A being the identified 140

8 witnesses, annex B being a division of those witnesses into categories:

9 Experts, internationals, general witnesses of fact; and then those

10 witnesses on that list that had been filed that deal with specific areas

11 of Kosovo.

12 Annex C details by that date of the 28th of September steps taken

13 to contact witnesses which, from the period of about the 4th of September

14 to the 28th of September, involved about 92 witnesses. Since that date

15 and today's date, there has been a contact level of some 150, with

16 virtually all witnesses that have an e-mail address or a telephone number

17 or a house address, those contacts having been exploited to make contact

18 and see if they are willing to testify.

19 The list is imperfect in many respect in the details that should

20 be made available to us, because we are attempting to contact people by

21 telephone, and sending -- getting hold of people by telephone is obviously

22 a difficult way if they are out during the day. And we don't have any

23 other means of contacting them. But I'm satisfied that the level of

24 contact that we have had and the number of conversations that we have had

25 with witnesses, which are over 130, is a very good coverage from the

Page 33042












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Page 33043

1 materials that we have had.

2 It is clear that a large number of those witnesses are refusing to

3 testify because of the issue of the assignment of counsel. Some have said

4 that they wish to reconsider their position after the appeal has been

5 heard concerning the assignment; others have said they refuse, at all

6 costs, because they disagree with the principle of the assignment.

7 In order to deal with that matter, we have taken steps in relation

8 to a group of witnesses of about 20, who are what we would consider to be

9 a cross-section of the case, being internationals, so-called insiders, and

10 witnesses of general fact, to take enforcement procedures through their

11 national state to request their cooperation with the Tribunal. We are

12 here going through channels that are out of our hands, and this

13 information has been dealt with by the Registry of the Tribunal through

14 the appropriate office, and we just have to await results, having

15 contacted the appropriate governments in relation to this issue.

16 JUDGE BONOMY: Mr. Kay, has any witness articulated a reason

17 beyond simply this statement that: I don't agree with the idea of

18 assigning counsel? Has anyone stated, articulated a reason that provides

19 a rational basis for refusing to give evidence because counsel has been

20 assigned?

21 MR. KAY: All those witnesses who have expressed that point of

22 view, and I will submit updated tables to cover -- to take the Court to

23 today's date, have expressed it on the basis of disagreement, in

24 principle, that Mr. Milosevic is unable to call them and that assigned

25 counsel has taken away his rights. We are aware from the information that

Page 33044

1 we have received that there is a campaign, if you like, which involves the

2 holding of meetings in which this issue is discussed. And the appointment

3 of assigned counsel is attacked. We are aware of the most ridiculous and

4 indeed false statements being made in an attempt to justify the position.

5 We are aware that statements are being made that the witnesses we have

6 produced, it is said, absolutely falsely, are bought by us for production

7 here.

8 JUDGE ROBINSON: I wasn't aware that you're in the money, Mr. Kay.

9 MR. KAY: Well, yes. And we -- yes. It is absolutely ridiculous,

10 but it is a campaign that is out there and running, that makes completely

11 erroneous statements about myself, people working for me, and indeed the

12 conduct of this case. And for the record, so that this is dealt with, may

13 I say that there are no witnesses who are paid money to attend here.

14 Everyone has cooperated of their own volition. All the witnesses that I

15 have called have seen Mr. Milosevic, and I know from what they have said

16 that he has not told them not to give evidence through me. And I have

17 checked that matter, because it is obviously something that people would

18 like to know.

19 [Trial Chamber confers]

20 JUDGE ROBINSON: Please continue, Mr. Kay.

21 MR. KAY: The witness list at the moment has been scheduled to

22 take us to the end of October, and at the moment, there is to be a

23 reconsideration to see what witnesses would take us into November. The

24 Court has a break of one week in November, and that has to play a role in

25 our considerations. I have to see what develops from the diplomatic

Page 33045

1 channels for the production of witnesses that we have taken through that

2 system, and again, this is out of my hands and we are relying on the

3 cooperation of states.

4 JUDGE ROBINSON: Are these witnesses in your document of the 8th

5 of October?

6 MR. KAY: Yes. That's the 20 list.

7 JUDGE ROBINSON: List of 20?

8 MR. KAY: Yes.

9 JUDGE KWON: That was filed again by ex parte?

10 MR. KAY: Yes.

11 JUDGE ROBINSON: And you are going through the diplomatic channels

12 to seek the assistance of the states?

13 MR. KAY: Yes.

14 JUDGE ROBINSON: Why is that?

15 MR. KAY: Because they have not agreed to testify. We can't use a

16 binding order at this stage from this Tribunal, because we must exhaust

17 domestic remedies.

18 JUDGE ROBINSON: These are all state officials?

19 MR. KAY: They are state officials, as well as members of the

20 public. They are a cross-section, as the Court will see in the summary

21 that we have put on the right-hand side.

22 JUDGE ROBINSON: I can hear from Mr. Nice on this. But it's not

23 my understanding that in relation to a witness, other than a state

24 official, that it is necessary to secure the assistance of his state

25 before seeking a compulsory order from a Trial Chamber. I think all that

Page 33046

1 is required is for you to show that you have taken and exhausted all

2 reasonable steps to secure the attendance of that person. In relation to

3 state officials, the rationale has to do with the functional immunity of

4 that individual or that wouldn't be applicable in relation to an ordinary

5 witness.

6 MR. KAY: I'm trying to find that document at the moment, but I

7 think they are a -- if I can just refresh my memory.

8 JUDGE ROBINSON: They're all officials?

9 MR. KAY: Looking at it, they are mainly state officials. Let me

10 just ... thank you. I think this document is -- all, bar a few, are state

11 officials. All, bar a few of these, are state officials. I can see

12 probably two or three that are not.

13 JUDGE KWON: Since we are discussing this matter in open court,

14 what do you think about lifting the nature of ex parte and give it -- hand

15 it over to the Prosecution at this moment?

16 MR. KAY: In relation to this particular document, there are no

17 protected witnesses on this document on the date of the 8th of October, so

18 that could be -- that could be handed to them. I was advised that

19 traditionally these documents come through a particular system in the

20 building, which I was told to follow, although I had made other decisions

21 myself. So I accepted the advice. But in the circumstances, there's no

22 reason why the Prosecution shouldn't have that document of the 8th of

23 October, because none of those are protected witnesses.

24 JUDGE KWON: The Chamber will consider that in due course.

25 MR. KAY: Yes. As I said, the system of contacting has come to a

Page 33047

1 stage on the Kosovo list where we have just about finished it, and there

2 has to be a review then of those willing to testify, and then an attempt

3 to structure the case so that we are hearing evidence in a cohesive way.

4 But we will certainly, in relation to civilian witnesses, if we are not

5 getting successful responses through the diplomatic channels, seek orders

6 from this Court to compel them to testify. But as I say, this has been a

7 process where we've had to go through everything to get to the stage that

8 we are at now and have an overall picture. But it's clear to me now that

9 the numbers of those willing to testify are such that it doesn't satisfy

10 the broad sweep of the defence case. It is a diminished number, and we

11 have to take steps to compel witnesses in furtherance of our duties under

12 the assignment of counsel.

13 JUDGE BONOMY: And their position is quite simply: If the case

14 isn't conducted according to their interpretation of the Rules, they're

15 not going to come? Is it as simple as that?

16 MR. KAY: It is, Your Honour. May I say: Some of the witnesses,

17 a very small number, have indicated surprise that they're on the witness

18 list at all. If we have to get down to specifics, I will put this

19 together in a proper table and have said: Well, I don't feel I can give

20 any evidence here that assists the Defence, and refuse to -- or say

21 they're unwilling to testify. And looking at what they say and the reason

22 they say I can see that that is justified.

23 JUDGE BONOMY: That's rational also.

24 MR. KAY: Yes, that is rational. I can understand that, having

25 looked at what they are and made inquiries of them -- of the purpose of

Page 33048












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Page 33049

1 their testimony. I had an e-mail yesterday. But the number of witnesses

2 as well who had not been contacted and in fact asked to provide statements

3 in advance, and numbers who did not know they were on the witness list

4 were quite significant as well. So in many respects, we are, like the

5 witness that was scheduled today, he had not been seen, and we are opening

6 up for the first time the preparation of witnesses to give evidence in the

7 case. There are significant numbers who have not been spoken to in

8 advance, not asked for exhibits, and not been prepared in a way that you

9 would normally expect.

10 I'd like to make it clear to the Court that we're often having to

11 deal with this very fresh with witnesses. Mr. Hutsch had been seen three

12 times by Mr. Milosevic, and that seems to be an exception for that level

13 of contact or preparation. Other witnesses have not been seen, and some

14 did not know they were on the list.

15 [Trial Chamber confers]

16 JUDGE ROBINSON: Mr. Kay, how soon do you think you'd be in a

17 position to apply for compulsory order? We were thinking that Monday

18 would be available for that, since we will not be working on that day, in

19 light of the developments.

20 MR. KAY: Well, we had actually scheduled to deal with all this

21 this afternoon with the team that we're working with on it, so that we

22 could then have filed, as we saw it, on Thursday, and updated the Trial

23 Chamber. We've got here rather sooner, which is why I'm not totally

24 prepared on the subject, because I have to review everything with those

25 who are making the contacts. And it was our intention to have an overall

Page 33050

1 review, see where we were in terms of the levels of contact, maybe even

2 categorise it so the Court had more precise information in terms of what

3 is the reaction of the witnesses, and that was to be our task this

4 afternoon and tomorrow.

5 JUDGE ROBINSON: Of those witnesses who have pointed to the

6 appeals decision as being influential in what they do, is it your

7 understanding that they will attend irrespective of the decision, or only

8 if the decision goes in a particular way?

9 MR. KAY: I can't answer that. Because some of the contact has --

10 I haven't been making it because I need a B/C/S speaker to do it. I would

11 have to -- we keep notes of everything, so we've got everything recorded.

12 I'd have to look at that carefully before I gave a reaction. I just get

13 the report about the disagreement of the principle and some waiting to see

14 what the Appeals Chamber rule on the issue. I'm sorry I can't be more

15 helpful than that, but we're --

16 JUDGE ROBINSON: Yes, I appreciate that, Mr. Kay.

17 MR. KAY: Yes. So that's the position at this stage.

18 In terms of exhibits for the Trial Chamber, there have been a

19 large batch of exhibits brought to the court on behalf of Mr. Milosevic,

20 not translated in advance, so certain documents need to be translated.

21 There are ways that I am alerted to the significance of some of the

22 documents, which is of assistance. But again, like the witness scheduled

23 for today, his materials that he was wanting to bring and rely upon were

24 different from those that had been filed, and each witness, as we speak to

25 them now, we try as well as possible to get information and exhibits and

Page 33051

1 disclose them, if it may be that they become relevant to their testimony.

2 [Trial Chamber confers]


4 MR. NICE: We still haven't seen the ex parte list, so I have no

5 observations to make about that, save that I think Your Honour is quite

6 right about functional immunity being the only legal ground for requiring

7 notice to the state. There is, of course, a practical ground in the case

8 of witnesses from the former Yugoslavia, in particular, from Serbia, who

9 are said also to require waivers from the state before they can give

10 evidence. I don't know if the Chamber remembers the various technical

11 difficulties we've had in getting waivers for witnesses. The process

12 going through a particular committee that I'm not even sure if the

13 committee is sitting at the moment. So functional immunity or the

14 requirement for waiver, that apart, witnesses come without the involvement

15 of the state.

16 Second point I'd make on the fact that the witnesses are making

17 their attendance conditional on this court operating within systems that

18 they, the witnesses, think to be appropriate. It's obviously not for the

19 witnesses to say that and we've had that discussion before. There's much

20 more I could say, but I will restrain myself and limit myself to saying

21 this: It may be that the accused hasn't specifically asked these

22 witnesses not to attend, subject to a change in the ruling in the Tribunal

23 as a whole, but the Court will remember that he was given an opportunity

24 on a previous occasion to answer bluntly the question: Do you want these

25 witnesses to attend or not? And he gave a carefully constructed answer

Page 33052

1 that was either a nod and a wink to his witnesses, in the vernacular, or

2 little more.

3 It is entirely open to the accused, through Mr. Kay, through the

4 Court, to make it absolutely clear that he wants these witnesses to attend

5 and that he doesn't want them to use the alibi, and that is perhaps what

6 it is, of this posture of theirs to avoid attendance. The Court could

7 consider the following: First, it could consider allowing him that

8 opportunity again, and it could also have in mind that we are now losing

9 days of the 150 allowed because witnesses are not here. We've lost days,

10 was it last week? No, not last week. The week before we rose. And we're

11 clearly losing a day or a day and a half at least this week, which would

12 have been usable by witnesses had there not been this policy of

13 obstruction to my learned friend Mr. Kay, who is clearly doing all he can

14 in difficult circumstances.

15 It may be, and I don't invite obviously an immediate reaction, but

16 it may be that the Chamber would think it appropriate to say: Time is

17 running. And those 150 days are expiring, even when, or particularly

18 when, days are wasted through the reaction of these witnesses.

19 Your Honour, that's all I have to say on the matters raised by

20 Mr. Kay. We'll look at the list when it's provided, with interest. We

21 will of course continue to do all we can to assist Mr. Kay in the

22 provision of details and one thing or another when he needs it.

23 I have only one other matter for the Status Conference today on an

24 entirely different topic, now or later, at your pleasure.

25 JUDGE ROBINSON: Thank you, Mr. Nice.

Page 33053

1 Mr. Milosevic, do you have anything to say in relation to these

2 matters? Bear in mind that it is improper to comment on the merits of the

3 issue that is before the Appeals Chamber. In the jurisdiction from which

4 I come, it would be almost contemptuous, and I see no reason why it should

5 be different here. So no comment on that issue. But do you have any

6 comment on the practical issues that have been raised by Mr. Kay,

7 commented on by Mr. Nice, in relation to securing the attendance of

8 witnesses?

9 THE ACCUSED: [Interpretation] Mr. Robinson, Mr. Kay said that

10 there are many witnesses with whom I have not had a talk, which is of

11 course true. And that is the result of the fact that I have been given

12 very few days at my disposal to contact and talk to those witnesses. All

13 the days that I have been given to talk to witnesses, since you have taken

14 away my right to conduct my own defence, I have used those days. But as

15 there were very little days given to me, I have used the days at my

16 disposal to talk to the witnesses. Of course, what Mr. Kay said to the

17 effect that I met the previous witness three times, Mr. Hutsch, three

18 times, that's not correct either. I met him twice. And I met him twice,

19 on two occasions, because Mr. Hutsch presented a whole series of facts

20 which I myself wished to have stated here in public and have the public

21 hear them. Many of those facts, the public, or anybody else in the

22 courtroom, has yet had an occasion to hear, because no questions were

23 raised with respect to those facts. And I'd like to draw your attention,

24 Mr. Robinson, to this --

25 JUDGE ROBINSON: I'm stopping you there to make the comment that

Page 33054












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Page 33055

1 if that is the case, then it is on your head, Mr. Milosevic. That is not

2 the responsibility of Mr. Kay or the Court, because you have been provided

3 with an opportunity to ask those questions, to fill in any gaps that you

4 saw in the examination-in-chief. And you have consistently failed to

5 seize that opportunity. It is almost beyond my comprehension why you have

6 chosen to take that attitude. You cannot approbate and reprobate. I will

7 not stand for that. You can't be provided --

8 THE ACCUSED: [Interpretation] Mr. Robinson --

9 JUDGE ROBINSON: [Previous translation continues] ... unity, to

10 examine, to ask questions. You don't seize the opportunity, and you now

11 wish to be heard to be saying that something was not said in testimony

12 which could not only be relevant to your case but beneficial to it. That

13 attitude is totally unacceptable.

14 THE ACCUSED: [Interpretation] Mr. Robinson, what you have just

15 said can only seem logical in formal terms. But if you bear in mind the

16 fact that the bulk or the substance is lacking, then the bulk cannot be

17 replaced with some kind of additional questions. When the foundations are

18 missing, and when they have not been put forward in the right way, you

19 cannot put that right by asking additional questions. So it is a question

20 of principle and approach, which Mr. Kay, without any fault of his own, of

21 course, does not understand, because he knows nothing about the events in

22 Yugoslavia and, for example, with the previous witness, we were able to

23 see that --

24 JUDGE ROBINSON: I'm stopping you again, because you also are in a

25 position to instruct Mr. Kay. That is entirely consistent with the order

Page 33056

1 that we made. So it is open to you to instruct him, to provide him with

2 information which will form the basis of an examination-in-chief that is

3 relevant and beneficial to your case, and it is also open to you, and you

4 have been provided with the opportunity, at the end of

5 examination-in-chief and at the end of re-examination, to ask additional

6 questions. And this is not just a matter of picking up the scraps. It is

7 your case that is at issue, and we have made it quite clear that the case

8 will be determined on the basis of the evidence that is before the Court.

9 You have a responsibility to get evidence for your defence. Mr. Kay has

10 been assigned to you. That matter is now before the Appeals Chamber.

11 We'll await that ruling. Until that ruling is given, then the order which

12 the Chamber made will be implemented in the way that the Chamber

13 indicated.

14 JUDGE KWON: And it is open to you, Mr. Milosevic. Mr. Milosevic,

15 it is open to you also for you to instruct your own lawyers to come into

16 the courtroom to represent yourself.

17 THE ACCUSED: [Interpretation] Mr. Robinson, you are referring to

18 your order, and your order and ruling is contrary to the basic rights

19 which you have taken away from me. Therefore, I cannot agree, for reasons

20 of principle, with your ruling, by which you took away my right to conduct

21 my own defence and to represent myself. You took that right away from me,

22 Mr. Robinson. So do not refer to a ruling which is completely devoid of

23 all legal foundations, except here where the law is not abided by and not

24 respected.

25 JUDGE ROBINSON: You do not listen. You do not listen. That

Page 33057

1 matter is before the Appeals Chamber. It is improper to discuss the

2 merits here. And I warned you that I will not hear that. I will not

3 tolerate any discussion of the merits of that issue, any comment on the

4 merits. So if you have nothing further to say on the issue, the practical

5 issue of securing the attendance of witnesses for your case, then we --

6 then so be it. So be it. But I will not hear anything on the merits of

7 the matter which is before the Appeals Chamber.

8 [Trial Chamber confers]

9 JUDGE ROBINSON: Mr. Kay, the Chamber feels that if your documents

10 which you're updating could be filed by Friday morning, that would be

11 useful. Then we would have it on the weekend to review.

12 MR. KAY: Yes.

13 JUDGE ROBINSON: And indeed, if you find that you're in a position

14 to make requests of the Chamber on Monday, then you should indicate that

15 perhaps by tomorrow, so that a sitting could be arranged for Monday.

16 MR. KAY: Yes.

17 JUDGE ROBINSON: I take into account the fact that you are

18 appearing in the Appeals Chamber on Thursday.

19 MR. KAY: Yes.

20 JUDGE ROBINSON: And obviously you will need time to prepare for

21 that.

22 MR. KAY: Yes. We will endeavour to enable sufficient -- revised

23 information be in the hands of the Trial Chamber by Friday, and hopefully

24 we could then have a hearing on the Monday. It may be that time is

25 available for that.

Page 33058

1 JUDGE ROBINSON: Mr. Nice, you had another matter?

2 MR. NICE: Totally different matter. It's really to inform the

3 accused, by informing the Court, of the position concerning exculpatory

4 Rule 68 material, given the change in Mr. Kay's position from amicus to

5 assigned counsel. It will be the subject of a written report in our

6 series of Rule 68 reports, but so that the accused can understand the

7 position and prepare himself for any immediately forthcoming witnesses,

8 the following is the relevant history and position:

9 Full Rule 68 disclosure has been made in both languages to the

10 accused. He thus retains a full library. A full library of Rule 68

11 material was provided to the amicus. As the Chamber may remember, the

12 indexed library kept by Mr. Tapuskovic was unfortunately destroyed in

13 circumstances that don't bear happy examination. But nevertheless, that's

14 a matter of history.

15 Mr. Kay retains only part of the Rule 68 disclosure, that which

16 was only in B/C/S being of no value to him, and he not having had, I

17 think, simply the physical space to store, nor, in his role as amicus, I

18 think the time necessarily to examine all of the other material.

19 In his new position, he obviously needs to have access to all the

20 Rule 68 material, only a part of which is presently available

21 electronically. We've discussed the position with him, and having thought

22 first of one solution, we've come up with a second solution, which is that

23 the Prosecution will, within about a month, scan the totality of the

24 material that's already been provided to the accused, and indeed to the

25 amicus, and make that available electronically to Mr. Kay and his

Page 33059

1 colleagues. But that will take about a month. It's obviously quite a

2 labour-intensive exercise. And so between now and the end of that period,

3 there may be occasions when witnesses will be called for whom Rule 68

4 material will lie in the possession of the accused but not in the

5 possession of Mr. Kay.

6 It is, of course, open to and indeed, in our submission, up to the

7 accused to use the material that's been provided to him and to use the

8 assistance that we know he has available to him to explore that material

9 and to deploy it if necessary. But we have done, and in cooperation with

10 Mr. Kay, everything that it is possible to do in light of the history, to

11 ensure that both the accused and Mr. Kay has a full record of Rule 68

12 material, which will then be kept as a part of the library of this case

13 right the way through to the conclusion of any appeal.

14 JUDGE ROBINSON: Thank you.

15 [Trial Chamber confers]


17 MR. KAY: Yes, Your Honour. During the proceedings as a whole,

18 Rule 68 material has been disclosed to Mr. Milosevic personally, as well

19 as the amici curiae, in the division of roles, because most of it was in

20 B/C/S, Mr. Tapuskovic was obviously the natural advocate to deal with that

21 material, and the Court may remember cross-examined quite frequently from

22 those materials.

23 We have the total index that Mr. Tapuskovic's archives were able

24 to bear, and so that is able to be researched and is a very good primary

25 research tool. But the scale and scope of it is so enormous that it is

Page 33060

1 unable to be dealt with in the form of physical copies. So the transition

2 which the Prosecution have now set up, which makes it available in an

3 electronic form and searchable, considerably eases our task. And we had a

4 meeting beginning of this week, I think it was, or was it last week, to

5 deal with this issue, as it's our intention to give a task to an

6 investigator who will have access to this material, who is a B/C/S

7 speaker, to review and look at relevant materials during the course of the

8 defence, which is the way we've structured that aspect of the case over

9 the last couple of weeks. And we've accepted someone yesterday who

10 arrived in The Hague who is willing to take on that role and position for

11 us. So that dimension of the case is now able to be dealt with by us. But

12 we are, of course, willing to receive such materials as identified by

13 Mr. Milosevic or his associates from the Rule 68.

14 [Trial Chamber confers]

15 JUDGE ROBINSON: Mr. Kay, let me just clarify. Would you be in a

16 position to work on Monday?

17 MR. KAY: Yes.

18 JUDGE ROBINSON: Monday. Okay. Very well. Thanks.

19 We'll adjourn until Monday.

20 --- Whereupon the Status Conference adjourned at

21 12.09 p.m.