Tribunal Criminal Tribunal for the Former Yugoslavia

Page 33061

1 Monday, 18 October 2004

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.05 a.m.

5 JUDGE ROBINSON: Mr. Kay, we received two filings from you dated

6 the 15th of October. One is an update --

7 MR. KAY: Yes, Your Honour.

8 JUDGE ROBINSON: -- on the witness list and one is the witness list

9 for this week.

10 MR. KAY: Witnesses scheduled for today and tomorrow in the sense

11 that they would take part of tomorrow, are witnesses that require

12 permission from their state German government before they are able to

13 testify in these proceedings. They had originally agreed to be witnesses

14 and then raised this matter a couple of weeks ago, and at that stage we

15 took steps to obtain the relevant permission by using one of the sections

16 of the Registry.

17 Dr. Rohde immediately set afoot the relevant permissions, but we

18 still await them. And one of those witnesses is fairly nearby to this

19 court and is able to get here very quickly, but in view of his position,

20 he has to receive that clearance from his government. And in those

21 circumstances, we're unable to call a witness today, Your Honour.

22 The other German witness is currently in Afghanistan, but the

23 means of getting him here were -- were entrain, and once that relevant

24 permission comes he is able to be contacted and will come to court.

25 In those circumstances, we cannot call any witnesses for the trial

Page 33062

1 today, but it may be an opportunity for the Trial Chamber to deal, in part

2 at least, with some of the issues concerning the attendance of witnesses.

3 We have provided the Trial Chamber with an updated --

4 JUDGE ROBINSON: Before you move on to that, there is Ms. Kanelli

5 and Mr. Spasic. Mr. Spasic was due to testify last week.

6 MR. KAY: Yes.

7 JUDGE ROBINSON: And I think what was outstanding was a report.

8 MR. KAY: A report, and he was going to speak to the other members

9 of his victims association so that they understood entirely what his

10 position was and why he was being asked to give evidence rather than one

11 of the others within the association. We are hoping that arrangements

12 will be able to be made for him to be back here by Wednesday, but as I

13 told the Trial Chamber last week, the circumstance of travel for these

14 people is often very difficult, and there isn't the kind of instantaneous

15 communication and response that we might hope for and expect as they live

16 in areas where there is some difficulty.

17 Ms. Kanelli arrives in The Hague today, and she will be -- she was

18 scheduled to testify on Wednesday. We will have to see whether she will

19 be prepared to testify tomorrow. She's been interviewed, but she has

20 various commitments - she is a member of parliament - and Ms. Higgins will

21 have to talk to her when she arrives later on today.

22 JUDGE ROBINSON: She will have relevant evidence?

23 MR. KAY: The extent of her evidence, from what I have seen, is

24 not great, and her evidence concerns largely a visit she made to Belgrade

25 during the NATO bombing campaign in the Kosovo phase of the indictment and

Page 33063

1 her personal experiences there. She was on the priority witness list of

2 the accused. The Court will remember that I asked the associate of

3 Mr. Milosevic to provide a priority list, which contained approximately

4 140 names. This witness was on that -- that list, and it may be that they

5 are aware of areas of relevance that we are unaware of. Certainly on

6 first blush from the statement taken by Ms. Higgins, it is not a -- a

7 central feature of the evidence relating to the indictment.

8 JUDGE ROBINSON: Well, I'm sure you will satisfy yourself as to

9 the relevance of her evidence.

10 MR. KAY: Yes. I have to perhaps balance here the interests of

11 the accused, looking at his best interest, and there may be matters that

12 he is aware of that we have been unable to divine in relation to her

13 relevance for the proceedings.

14 JUDGE ROBINSON: And if that is the case, it is, of course,

15 perfectly open to the accused --

16 MR. KAY: Yes.

17 JUDGE ROBINSON: -- to fill in those gaps.

18 MR. KAY: We are endeavouring to put before the Court those

19 witnesses that were submitted as being of a priority in relation to his

20 defence. And that is the way we have worked and we've taken it as being

21 our duty to work, because that would come to the nearest form of

22 instruction, the filing of a witness list, that we have.

23 JUDGE ROBINSON: As to the two witnesses who are Germans --

24 MR. KAY: Yes.

25 JUDGE ROBINSON: -- I am at a loss to understand why it is taking

Page 33064

1 so long to secure the permission from the German government.

2 MR. KAY: The witnesses did not have any clearances or permissions

3 before we came into this case in September. So no arrangements had been

4 set up to deal with any of the witnesses in relation to clearance from a

5 government, if appropriate, a foreign state, or indeed any waiver in

6 relation to testimony if from Serbia or elsewhere where such a requirement

7 was needed. No witnesses have been provided with that level of

8 preparation having been taken.

9 During the course of our inquiries and structuring of the case,

10 these issues have been raised with us after the witness has agreed to

11 testify. In the case of those two German witnesses, in the middle of

12 September, maybe later.

13 JUDGE ROBINSON: In the Prosecution's case, the procedural

14 difficulty that they encountered was with waivers, waivers in relation to

15 possible prosecutions, criminal prosecutions, relating to state secrets.

16 MR. KAY: Yes.

17 JUDGE ROBINSON: It wasn't, Mr. Nice, if I remember it correctly,

18 a difficulty that related to general permission to testify.

19 MR. NICE: Our principal problem was with waivers, but it's

20 certainly the case that with any witness whose evidence relates to a time

21 when he held an official position, there are administrative procedures

22 that have to be gone through which, with some countries, can take a very

23 long time indeed. And the procedures are different according to the

24 countries.

25 For example, there may be -- I don't wish to be specifically

Page 33065

1 critical in any sense about any country, but were there, for example, to

2 be a general entente cordial between a particular country and this Court,

3 it wouldn't change the fact that that country would still go through its

4 own rigorous procedures, which might involve potential evidence in chief

5 being first given to an examining magistrate before the witness can even

6 be approached properly by us and brought to this Court. So in addition to

7 waivers, there are administrative problems with various countries.

8 The lead time for witnesses, for us, has varied. I suppose there

9 have been some witnesses who we've got in a very short period of time, but

10 typically any exercise to get a witness takes, at the minimum, weeks;

11 inevitably, normally, months.

12 JUDGE ROBINSON: Thank you, Mr. Nice.

13 Mr. Kay, the difficulty I have here is that the Court doesn't have

14 any information as to the stage that the procedure has reached within the

15 domestic jurisdiction. I don't know if you have any -- any idea. Are

16 they moving in the direction of granting permission? Is that known?

17 MR. KAY: We have no information, Your Honour, at all. The

18 information leaves the Registry, and if I may say so, Dr. Rohde and his

19 staff have been extremely helpful and immediately investigated and put

20 entrain the procedures for us, but as they said, once it's out of their

21 hands, they lose control of it. And they are using channels that have

22 been opened up for the benefit of the Court by the particular government,

23 but in terms of where it is in the system and what is happening, I don't

24 believe they receive a great deal of information. I think it goes to the

25 embassy here and then goes into the domestic jurisdiction.

Page 33066

1 The time to be taken, from my inquiries over the last few weeks in

2 relation to all those procedures, is not at a level that we would expect.

3 I've had the opportunity of talking to, in fact, one of the Prosecutor's

4 experts in this matter to find out if there are procedures we don't know

5 about or that we could use and receive advice. The waivers may take 15

6 months. He was just in receipt of a batch of waivers in relation to

7 certain Serbian witnesses that were filed 15 months ago.

8 JUDGE ROBINSON: My understanding is that we're not dealing with

9 waivers here.

10 MR. KAY: No.

11 JUDGE ROBINSON: With witnesses.

12 MR. KAY: Yes. I'm trying to give an overall picture. We have

13 gone through the list, looking at what we can get, and as we've gone

14 through and found names, we've worked on those names and to try and see

15 what kind of list we're left with, obviously.

16 JUDGE ROBINSON: I should clarify for the benefit of the public

17 that these procedural difficulties are in no way incidental to the role of

18 assigned counsel. These are difficulties that would have been encountered

19 had the accused been representing himself.

20 I would still like to have more information. Perhaps the Registry

21 might have the information as to where the matter is at in the domestic

22 jurisdiction. Because you have been trying for about, I would think, at

23 least two to three weeks now to get this permission and it hasn't been --

24 been forthcoming. If it's not forthcoming, at least we ought to have some

25 indication as to what is happening, what is the stage that has been

Page 33067

1 reached in the consideration by the domestic jurisdiction.

2 [Trial Chamber confers]

3 JUDGE ROBINSON: Mr. Kay, before we look at the larger witness

4 list, I'll just end the discussion on this by asking the Registrar to

5 provide us with whatever information he has as to the steps that are being

6 taken to secure permission from the German government in relation to the

7 two witnesses.

8 MR. KAY: Yes. I can tell the Court that we've been in contact

9 more than once a day in relation to these witnesses, and the communication

10 that we've received is that it's out of their hands and going through the

11 procedures in Germany and whoever that involves. But they have been

12 contacted every day, and I know that they are on this matter and

13 attempting to fulfil it.

14 MR. NICE: Your Honour, before we move to the next witness list,

15 there's a matter of detail that I might be able to help the Court with,

16 and I only regret that I didn't discuss it with Mr. Kay before you came in

17 this morning. It came to me by an e-mail on Friday, and I wasn't here on

18 Friday, so I've only just picked it up.

19 We've made our own inquiries about Hartwig and Hensch in a spirit

20 of cooperation, not in a spirit of antagonism, and it appears through our

21 contacts with the German authorities here that the German government - I

22 don't know what level of authority that comes from, but from the embassy -

23 sees no reason for either of these two to have permission from Germany to

24 give evidence because they were working for OSCE or ECMM at the material

25 time and thus needed permission from the European Union or from OSCE, and

Page 33068












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Page 33069

1 apparently legal counsel -- it may be that the EU sees no problem with

2 respect of Hartwig and we don't know about the position of the OSCE. We

3 are expecting to get some further information and I'll make it available

4 to Mr. Kay, but it looks comparatively promising for their position this

5 week.

6 JUDGE ROBINSON: Thank you, Mr. Nice.

7 MR. KAY: Yes. One gets a situation, I think, of buck passing

8 when you start making inquiries in relation to institutions, that it's not

9 their problem, it's someone else's problem, but the witnesses have been

10 explicit and they know the conditions and terms of their employment in

11 relation to the permissions that are required, and we have to satisfy

12 that.

13 JUDGE ROBINSON: It depends, doesn't it, on the constitutional

14 relationships between the organisation to which they are seconded and the

15 country from which they're coming.

16 MR. KAY: Yes.

17 JUDGE ROBINSON: Because normally if you are seconded to an

18 organisation, then I would understand the information that Mr. Nice just

19 gave as the person who was seconded to an organisation would then be

20 working for that organisation. And in fact in some cases it is even

21 necessary constitutionally to show that you have no relationship with the

22 country from which you are coming.

23 MR. KAY: Yes.

24 JUDGE ROBINSON: It's necessary to show that you're not taking

25 instructions from them. So I can understand the information that Mr. Nice

Page 33070

1 just gave. And if the matter is now at the level of the OSCE -- and is it

2 ECMM or has that been overtaken? I'm not sure.

3 MR. KAY: OSCE at that time.

4 JUDGE ROBINSON: OSCE. Then I don't see why it should take very

5 long.

6 MR. KAY: It is with them, actually. We've covered that angle.

7 I've used the issue of the state, but we're also covering the European

8 Union angle as part of this inquiry. Dr. Rohde was immediately aware of

9 that.

10 JUDGE ROBINSON: I've asked the registrar. The registrar will

11 take note of the request from the Chamber for an update on this.

12 JUDGE BONOMY: Mr. Kay, these two witnesses I think specifically

13 said that they would require the authority from their government. They

14 didn't make reference to either the ECMM or the OSCE. And what is

15 actually happening here on the face of what Mr. Nice has just said is that

16 what you've described as buck passing may indeed be an apt description, is

17 that the government will actually give us the answer, is that right, but

18 they will make a check with the OSCE before doing so, or are these two

19 separate permissions that we're talking about?

20 MR. KAY: They're two separate permissions. One of them raised

21 the OSCE, and the other didn't. To cover both, we decided it was

22 appropriate to seek EU permission as well. Both are happening in

23 parallel. It's not a case of waiting for one and the other to be

24 produced. Both have been set entrain in parallel.

25 In relation to the witnesses, if they raise the position of their

Page 33071

1 state government, it is sensible for us to deal with that rather than then

2 have to move the witness into an uncooperative category, and we would not

3 seek to do that in relation to these witnesses. The experience of many,

4 mainly on the Prosecution side, who have had to deal with these issues is

5 that occasionally a witness doesn't want or require anything and will just

6 come. On other occasions and in the majority of occasions, because of

7 their conditions and terms of employment, they don't seek to be in breach

8 and are careful about their -- the steps taken in relation to their

9 production here as a witness.

10 JUDGE ROBINSON: Thank you.

11 MR. KAY: Yes.

12 JUDGE ROBINSON: Can we now look at your witnesses for Kosovo as a

13 whole. In your list, there are about 138 witnesses.

14 MR. KAY: Yes.

15 JUDGE ROBINSON: And you have conveniently divided them into

16 categories; internationals, experts, and -- what is the other category?

17 What is your other category, Mr. Kay?

18 MR. KAY: Insiders.

19 JUDGE ROBINSON: Insiders.

20 MR. KAY: They are senior --

21 JUDGE ROBINSON: Yes. And they are fact witnesses.

22 MR. KAY: Yes. I have a communication this morning in relation to

23 one of the witnesses within the expert category - in fact, over the

24 weekend - who e-mailed me, making themself available, and that will be

25 attended to later on today. That was a witness in the expert category. A

Page 33072

1 report would have to be done, so it's not a matter of a witness who is

2 immediately available.

3 In relation to another witness not originally on this list but to

4 be added, I've received information this morning again that that is a

5 witness who can be added to this list, but, again, it doesn't alter the

6 overall picture from our research in, say, a month that we are putting

7 before the Court today.

8 JUDGE ROBINSON: Let's go back to the list of experts.

9 MR. KAY: Of course.

10 JUDGE ROBINSON: For how many of them were reports already

11 prepared by the accused and his team? In other words, how many of them

12 were perceived by the accused to be experts?

13 MR. KAY: Four of them --


15 MR. KAY: -- have provided reports.

16 JUDGE ROBINSON: And you have in your list 21.

17 MR. KAY: Yes. There is a fifth who hadn't provided a report

18 which had been filed in the registry, but I understand from having spoken

19 to him that that was a report that was sent to the accused or his

20 associates and he was not willing to hand that over.

21 JUDGE ROBINSON: You have made the determination that these other

22 16 witnesses are giving expert testimony.

23 MR. KAY: Yes. Having looked at their backgrounds, the summary

24 provided from the Rule 65 ter, as well as Mr. Tomanovic's additional

25 summary in the priority list, it seems to me that there is a very good

Page 33073

1 chance, a very high probability that those witnesses would, in fact, be

2 seeking to put before the Court expert opinion testimony.

3 JUDGE ROBINSON: Your own approach, Mr. Kay, is one of caution.

4 You're very careful in your approach to these matters, and it may be that

5 some of them may not be giving expert testimony in the view of the

6 Chamber.

7 MR. KAY: I would have been surprised, having taken into account

8 objections that could be raised by the other side. There is in all of

9 them, as there must be, a degree of a factual basis from their own

10 personal knowledge, but in the summaries here, it indicates to me that it

11 would be expert opinion evidence, and I would not want to be faced with

12 the position of calling a witness, that objection being made, and then

13 there being a total waste of effort and resources and an inconvenience to

14 the Defence.

15 JUDGE ROBINSON: Is there anything that you'd like to tell us

16 about that list in terms of availability?

17 MR. KAY: In terms of availability, I think there is -- yes.

18 Within each of these boxes, there is a -- a summary of the perhaps most

19 recent contact. In the boxes, there is in fact a far greater history that

20 could be inserted but it would be of no real use to the Court, and we --

21 JUDGE ROBINSON: Many of them have refused to testify, indicating

22 their opposition to the assignment of counsel.

23 MR. KAY: I've had no response from a few, but you are quite

24 right. This is a about 80 per cent, 90 per cent refusal rate, although

25 one of them, as I say, has contacted me over the weekend to say that they

Page 33074

1 would be willing to provide a report, and I've responded to that, and that

2 information will have to go through the Registry to deal with the terms

3 and research period necessary.

4 JUDGE ROBINSON: Is that one who had previously refused on --

5 MR. KAY: No. That's someone who had never been contacted before.


7 MR. KAY: A high number of these witnesses have received no prior

8 contact. A significant number. And we are sometimes the first telephone

9 call that has been made to ask them to be a witness in this case, if what

10 they say is true.

11 JUDGE ROBINSON: For those who have refused, giving as their

12 reason the Chamber's decision on the assignment of counsel, it may be that

13 after the Appeals Chamber has adjudicated on the matter there may be a

14 change. And if there is no change, then, of course depending on the

15 outcome of the appeal, I think you will then have to decide what orders

16 you'd want the Chamber to make.

17 MR. KAY: Yes. Some witnesses have said they're waiting to see

18 the decision of the Appeals Chamber, but the vast majority fall into a

19 more stringent category in relation to their approach to the matter.

20 Some of these witnesses are giving what I believe needs to be

21 checked to see whether it is opinion evidence or not. If they were

22 experts, of course, they would be entitled to refuse to attend if they did

23 not wish to fall into that category of witness as an expert witness. I

24 think it's -- its a greyer area, you could say, but the powers of any

25 court to compel someone to be an expert are probably limited, and this is

Page 33075

1 a matter I've been thinking through over the last few days.

2 JUDGE ROBINSON: Your determination that they're experts is based

3 on the 65 ter.

4 MR. KAY: 65 ter and Tomanovic's priority document. We have had

5 no prior statements in relation to any witness. We are in the position,

6 at the moment, that we are taking these witnesses either blind, in the

7 sense that we proof them when they come to The Hague, or as in the case of

8 last week, Ms. Higgins went to Greece and took a statement there from the

9 witness Kanelli.

10 I have been told by the associates to the accused that they had no

11 notes, and that was not the way that they were operating in relation to

12 the witnesses and that there is nothing for them to deliver up to me in

13 relation to their notes of witness testimony. And if I may say so, from

14 our review and contacts with witnesses, it seems a lot of this may have

15 been done over the telephone. There have been face-to-face visits, but

16 there have been discussions. There have been witnesses who have been

17 discovered, if you like, as a result, perhaps, of Internet searches -

18 there are a number that fit into that category - and may have made

19 publications which have caused them to be contacted, and by that means say

20 they will be a witness for the Defence in the case.

21 JUDGE ROBINSON: Moving to the internationals, of which there are

22 27, on page 16.

23 MR. KAY: Yes.

24 JUDGE ROBINSON: I noted in relation to 209, 1343, and 1347, that

25 an update should be given in terms of the last contact that was made. For

Page 33076












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Page 33077

1 example, in 1343, to be contacted by Ms. Higgins to discuss matter. Last

2 contact 7th of October. 1347, the same, last contact the 4th of October.

3 MR. KAY: Yes.

4 JUDGE ROBINSON: And 209 we had met before.

5 MR. KAY: Yes. 209 has been an ongoing contact. Generally

6 there's an intermediary, and we have to proceed through messages being

7 passed on, messages back to the intermediary, and it is by no means easy.

8 But I don't believe at the end of the day there's going to be a particular

9 problem with this witness, it is getting the right circumstances and time.

10 In relation to the other two witnesses, they have to be contacted

11 again. We have limited contacts. It may be that there's a telephone

12 number and you ring it and the person's not in, and it becomes quite

13 difficult to follow these -- these through to speak to them with such a

14 limited form of contact.

15 Ms. Higgins deals with the French-speaking witnesses, being a

16 fluent French speaker. There was information given to me on the end of

17 Thursday concerning certain French witnesses who were having a meeting.

18 So the position with French witnesses is by no means resolved yet, and we

19 are endeavouring to give them confidence in the procedure.

20 The -- I'm sorry, Your Honour. I was reading another matter and I

21 didn't realise you were also reading.

22 If I could just advise you while we're on the French witnesses,

23 the information that came through was that there was a meeting of five

24 French witnesses to define a common position. "We would like to ensure

25 that Mr. Slobodan Milosevic will be allowed to question himself his

Page 33078

1 witnesses." I've spoken to this matter with these particular witnesses

2 before. They have been advised of the terms of the Court modalities, and

3 in a way there's a limit to how much you can keep on telling people about

4 the position.

5 JUDGE ROBINSON: Yes. And I think -- are you in possession of the

6 information which has just come from the Registry? You're not.

7 MR. KAY: Thank you. Thank you, Judge Kwon.

8 JUDGE ROBINSON: This is a very quick response for which I am

9 grateful to the -- to what I said earlier, asking the Registry to inform

10 us in relation to the two German witnesses.

11 MR. KAY: Yes. We knew we were at a stage of time when I think we

12 were near, but it's the timing that's right. Dr. Rohde, when I spoke to

13 his assistant Mr. Dye last week, believed that we were close, and suddenly

14 a day or two can make a difference.

15 JUDGE ROBINSON: But this information looks very promising.

16 MR. KAY: Well, on the one hand what you give in the other gets

17 taken away. Something that's just come through to us in relation to one

18 of those witnesses, and in fact, it's a rejection. It's a bit like the

19 dance of the seven veils with some of them. So having got a position of

20 fulfilment, it's then a rejection.

21 JUDGE ROBINSON: But not --

22 MR. KAY: One of those witnesses will only testify if the accused

23 is allowed to represent himself.

24 JUDGE ROBINSON: That issue was not raised before, was it?

25 MR. KAY: No.

Page 33079


2 MR. KAY: No. By experience you gradually learn the level of the

3 territory. Sometimes the Court may think I'm being bleak about these

4 matters. It's just that you can go down a route and then find that

5 various things, obstacles are put in your way. You deal with those, and

6 then you get to the final position and then there's an obstacle that's put

7 in your way. I believe the Prosecution have had the same experiences as

8 well, from my researches. But this e-mail that was just sent in has just

9 literally come in in the last few minutes. That is the witness Hartwig

10 who is now objecting to testify.

11 In --

12 [Trial Chamber confers]

13 JUDGE ROBINSON: Mr. Kay, it seems to the Chamber that if the

14 necessary consents have been given, that witness still refuses to come,

15 you may want to invite the Chamber or request the Chamber to issue a

16 binding order.

17 MR. KAY: Yes. Yes. It would be --

18 JUDGE ROBINSON: Or subpoena.

19 MR. KAY: It would be a subpoena for him, yes. We're at the stage

20 where we've -- we've got the overall picture. There are one or two

21 witnesses still to be contacted or things to be followed up, but we have a

22 sufficiently general picture to be aware of what we are -- have to deal

23 with, and to fulfil the need to call witnesses, we would now have to

24 embark on enforcement procedures.

25 It does raise a problem when you have uncooperative witnesses

Page 33080

1 which is far greater in extent than when you've got willing witnesses who

2 have to go through domestic procedures or require permissions. And from

3 my recent research into the matter with those who have got great

4 experience of it, it is -- it is quite clear that, as has happened here,

5 that suddenly an obstacle can be raised that can cause all planning --

6 that you accept someone's word and position, you make the plans, you set

7 it up for the Court, and then at the last minute an obstacle is put in

8 your way that may require some weeks or months to deal with. And I'm sure

9 the Trial Chamber has experience of dealing with witnesses generally but

10 may not be quite aware of the difficulties that we face with the lack of

11 cooperation, making it a harder task than when you have at least willing

12 witnesses to work with you.

13 JUDGE ROBINSON: Of course, a subpoena is a last resort. It's a

14 last residual measure. But once the procedures have been exhausted, the

15 Chamber will -- will issue a subpoena.

16 MR. KAY: Yes.

17 JUDGE ROBINSON: Because it has to be demonstrated to witnesses

18 that this trial is a matter of fundamental importance and that we operate

19 by procedures which are wholly proper. And once specific procedures have

20 been exhausted, the Chamber will consider an application for a subpoena.

21 MR. KAY: Your Honour, in relation -- we haven't only been working

22 on this list. There is another level of witnesses as well that we have

23 been working on that were derived from the five schedules submitted on

24 behalf of the accused for the commencement of the trial. The Court will

25 remember the five schedules that were submitted from June until August.

Page 33081

1 We've also been working off those, and this is the summary of the problem

2 for the part of the indictment that the Court is dealing with now.

3 We took the point of view that it was of no real benefit to burden

4 the Court with yet another schedule with more names dealing with the other

5 indictments and wider issues. We've tried to focus everything, as the

6 Court wanted, and in our view rightly so, that the Defence concentrate on

7 each section of the indictment in a distinct form so that the matters that

8 being dealt with were more clear and readily understandable.

9 JUDGE ROBINSON: Turning to the list of insiders. The list

10 consists of 39 witnesses. Is there any specific information?

11 MR. KAY: Again, you have a willing witness, and we had hoped for

12 one to include into this week, but some ten days ago or so he raised the

13 issue of needing the permission from the Serbian government, from the

14 relevant ministry, to enable his testimony. Well, of course, we then have

15 to take him off the list and go back and deal with that.

16 One of our problems is that, in the preparations, none of this

17 groundwork had been undertaken. But by and large, there are refusals to

18 testify to a great extent. In the last few weeks, we have been obtaining

19 the addresses of witnesses because, as I've informed the Court, we only

20 had basic information - that might just be a telephone number or an e-mail

21 address - and we could envisage problems coming to the Court or setting

22 entrain any enforcement procedures with such a low degree of information,

23 and it would be easy for mistakes to be made and the wrong people

24 contacted. So we took the view as much as possible that addresses should

25 be obtained so that we could be more specific and that any procedures

Page 33082

1 which required the cooperation of, say, the Serbian government could be

2 undertaken on definite details of identity, or as definite as can be made.

3 JUDGE ROBINSON: Your fact witnesses number about 50.

4 MR. KAY: Yes.

5 JUDGE ROBINSON: Is the position the same there?

6 MR. KAY: Yes. Yes. There is a greater problem with no contact

7 details in this particular category, although, again, over the weekend one

8 of our investigators forwarded to me 12 addresses for witnesses which can

9 be included into this table, which will help matters, but obviously that

10 has yet to be acted upon.

11 There has been a slight problem in that it appears that some of

12 the witnesses on the original list were reproduced twice. I believe the

13 Court and the Registry may have had a problem counting the number of

14 witnesses concerning Mr. Milosevic. From my research I was able to

15 identify what seemed to me a number who had been put into the 65 ter list

16 twice in different parts of the document.

17 Again, the main reason is the issue of Mr. Milosevic's position

18 concerning the imposition of counsel.

19 JUDGE BONOMY: Mr. Kay, I have one or two specific inquiries to

20 make of you. You've mentioned the absence of contact details just briefly

21 at the end there. A number of the witnesses for whom there are no contact

22 details hold fairly prominent public positions. I take it there's no real

23 difficulty with contact details for them.

24 MR. KAY: We've obviously put those with our investigators, and

25 there are some who hold prominent positions. I anticipate that the 12

Page 33083

1 that I have been forwarded over the weekend are in fact within that

2 category. Just glancing through it, it seemed to me that that was the

3 case.

4 JUDGE BONOMY: The experts also, many of the experts fall into

5 that category. For example, if you're on page 14, Witness 654, one would

6 expect you would be able to track down. That's just an example.

7 MR. KAY: Yes. Yes. That's not too -- the one below, in fact,

8 has agreed to testify, and I received that e-mail yesterday. And so those

9 terms have to be arranged with the Registry.


11 MR. KAY: It may be that one witness can deal with the overall

12 subject matter and you don't need three dealing with the same subject.

13 JUDGE BONOMY: No, I can see that.

14 The second matter relates, I think, to two examples only. If you

15 could go to page 27 of your list. Number 888 was not contacted, according

16 to this, by Mr. Milosevic's associates, and the witness wants to consult

17 with them first before providing the Registry with a decision. And there

18 is, I think, one other example of that, and that's on page 30.

19 MR. KAY: Yes. There are a couple like that, Your Honour. 1537.

20 JUDGE BONOMY: 1537 is the other one. Now, do you know any more

21 about either of these and whether arrangements have been made for that

22 consultation to take place?

23 MR. KAY: Yes. That -- that may have been passed on to someone to

24 act upon. I can't answer that myself because this has been contact that

25 has been in the B/C/S language.

Page 33084












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Page 33085

1 JUDGE BONOMY: Would it be correct to interpret what you've put in

2 this document as an indication that these witnesses are likely to be

3 willing to give evidence as long as they get the okay from Mr. Milosevic's

4 associates?

5 MR. KAY: I should hope so, because on the face of it they haven't

6 adopted a position of opposition, unlike others that have been in this

7 category. And so as it is a positive -- more positive response, we have

8 put it that way.

9 There have been examples where they have fallen into this category

10 and it's been an outright rejection. Some of those may be on the basis

11 that they feel they do not wish to support the Defence case, others may be

12 on the basis that they feel they do not have anything to offer in terms of

13 evidence. And without any statement ourselves, it is difficult to

14 disagree with them when they come to that conclusion.

15 JUDGE BONOMY: Now, thirdly, Mr. Kay, speaking for myself, I would

16 like not to confine attention to those who are unwilling to give evidence

17 but to concentrate also a bit more on those who are willing.

18 MR. KAY: Yes.

19 JUDGE BONOMY: And there are a number of these on the list, and

20 there are examples on pages 34 and 35. There's 1276 at the foot of 34,

21 and there's 1461 on 35.

22 MR. KAY: Number 1457 at the foot of 34 has always been willing to

23 cooperate but raised last week, or two weeks ago, the issue of a

24 permission from his relevant ministry, and that is with Dr. Rhode's office

25 at the moment.

Page 33086

1 JUDGE BONOMY: That applies to both of the witnesses I've just

2 identified and they both require permission from the Serbian Ministry of

3 Interior; is that right?

4 MR. KAY: Yes. 1461 is that category as well.

5 JUDGE BONOMY: Are you able to say how long that is likely to

6 take?

7 MR. KAY: I received a letter on Friday, which I will turn to, and

8 the letter was dealing specifically with the first of those cases Your

9 Honour pointed out. The letter, which I can give a copy to Your Honours

10 so you can see it, is dated the 15th of October, they having been

11 contacted on the 7th of October, requesting the grant of a permission for

12 that witness from the Ministry of Foreign Affairs.

13 "In accordance with the domestic legal procedure and the principle

14 of equality of parties before the ICTY, it is necessary that the assigned

15 Defence counsel for Mr. Slobodan Milosevic provide an outline of the

16 matters proposed to be covered during the testimony of the witness. Such

17 an outline will enable the National Council for Cooperation of Serbia and

18 Montenegro with the ICTY to propose to the government of Serbia and

19 Montenegro to give the witness a waiver from a duty to keep state,

20 military, and official secrets. I take this opportunity to ensure you of

21 the willingness of Serbia and Montenegro to enhance the cooperation with

22 the ICTY in all fields." And that comes from the first secretary, Sasa

23 Obradovic.

24 Well, I am informed that these waivers can take months, and the

25 batch that I was referred to, this was taking a considerable period of

Page 33087

1 time.

2 JUDGE BONOMY: That letter, though, has the potential to develop a

3 vicious circle, I think, because no doubt proofing of the witness is part

4 of the exercise you have to carry out.

5 MR. KAY: That's what we were hoping to do. We didn't want to

6 bring witnesses over here without having had them proofed.

7 JUDGE BONOMY: And that can't happen until you get the witness

8 here, so you have to carry out an investigation, presumably, with that

9 witness before you can answer that letter.

10 MR. KAY: Really, yes.

11 JUDGE BONOMY: Now, the fourth question I have, if you have page

12 39. We have, at the foot of the page, number 955, who is a witness

13 willing to attend faced with certain difficulties which may require to be

14 dealt with in some formal way. Now, have you considered how to deal with

15 this situation yet?

16 MR. KAY: Yes. We put this with the WVSS, and the response we

17 received on Thursday was that he does need a passport.

18 JUDGE BONOMY: There may also be a question of safe conduct in

19 this -- or, maybe not. Maybe not.

20 MR. KAY: We've been checking out what that refers to, whether

21 it's domestic matters or whether it's to do with this case. It seems it's

22 more likely or not that it's a domestic matter rather than anything to do

23 with this case. But there may be difficulties in him going somewhere to

24 get his passport. That was how the last state of the information was put

25 to me.

Page 33088

1 JUDGE BONOMY: I seem to have mistakenly made another reference to

2 that page which I can't find at the moment.

3 Just the last point, then, Mr. Kay. On page 38 and on page 41,

4 there are examples of witnesses whose evidence might have to be taken in a

5 different way. Number -- the one at the top on page 38, that's 934, and

6 on page 41, 1496 at the foot.

7 Now, the circumstances are not identical in these two cases, but

8 it may be that in both cases thought should be given to whether that

9 evidence should be obtained via videolink.

10 MR. KAY: Yes.

11 JUDGE BONOMY: There may be other examples of that on the list

12 also.

13 MR. KAY: Not to a great extent. I think there's only one, two,

14 or three that would go into this category.

15 934 has become more and more difficult as we've proceeded, from

16 being positive in the first few weeks to being more difficult in relation

17 to the issue of testifying. And 1496, that is a very recent one that has

18 come -- come through.

19 I have had another one on a videolink issue, and I feel it

20 appropriate I should at least have a statement from them first before

21 putting entrain what is quite a complex procedure involving a number of

22 parties. And it was our intention to have that as a group of witnesses,

23 perhaps seen, proofed, and then considered. We were in a position at one

24 stage of having one who was willing and available. Indeed, the Registry

25 had taken marvelous steps acting on the initial information that was

Page 33089

1 given, setting it up very quickly and positively. But I have to say I

2 think we should stop here because I've got no statement from the witness,

3 I have no idea what the witness would give evidence about, and to launch

4 into a videolink in those circumstances is probably unjustified. Well, is

5 unjustified, not probably.

6 JUDGE BONOMY: I have found the one, Mr. Kay, that I thought I had

7 misnoted but in fact I had misread my note. Going back to page 39, 948.

8 It may be the only example in the list of a witness refusing to testify

9 through fear.

10 MR. KAY: Yes. There are a couple of others --

11 JUDGE BONOMY: Do you intend to do anything about that or do you

12 intend to accept that?

13 MR. KAY: He would have to be seen and proofed and given advice.

14 There have been a couple in that category who have been concerned because

15 they have property or connections still with Kosovo. They are now outside

16 Kosovo and fear that there could be repercussions.

17 There was one witness who is still in Kosovo and was concerned

18 about leaving his house for a period of time to give evidence and the

19 difficulties that may cause him. I can't remember which witness that was

20 at this stage. And we're trying to follow that -- that through.

21 JUDGE BONOMY: Thank you, Mr. Kay.

22 MR. KAY: Thank you, Your Honour.

23 JUDGE ROBINSON: I just had a quick check made and noted that of

24 the 138 witnesses for Kosovo on your list, 65 have refused to testify

25 because of the assignment of counsel, and one is specifically awaiting the

Page 33090

1 Appeals Chamber's decision. So that is about 50 per cent, almost 50 per

2 cent. So it may be that the position, depending on the stance the

3 witnesses have taken or will take, the position may improve after the

4 Appeals Chamber has ruled on the matter.

5 MR. KAY: Yes, depending on what that decision is either way, that

6 may have an impact on the situation. That will necessitate us going back

7 through that which has taken us the last four to five weeks and attempting

8 to find the position of the witnesses even if -- whichever way the appeal

9 goes, it's probably something that needs -- it occurs to us, whichever way

10 the appeals decision goes, there needs to be a greater concentration on

11 the means of production of witnesses at the Tribunal. And we hope that

12 the cooperation of the various agencies, be it Mr. Milosevic's appeal

13 succeeds or doesn't, is at a level for the Defence that enables this --

14 this case to function efficiently and smoothly.

15 We do come at a disadvantage in many respects, not having perhaps

16 the status of the Office of the Prosecutor and the well grooved channels

17 of communication. That can make it difficult to sometimes put on the

18 appropriate pressure to get the level of intensity of response that should

19 be required.

20 JUDGE ROBINSON: But I should note, Mr. Kay, that everything has

21 been done to facilitate the discharge of your responsibilities.

22 MR. KAY: Yes. Dr. Rhode's office here has been extremely

23 helpful, and other aspects of the Registry, in providing this liaison to

24 take these steps. There's been a high level of concern and interest right

25 the way up to the Registrar in relation to the production of witnesses for

Page 33091

1 this Defence case.

2 JUDGE ROBINSON: And the next witness, then, will be available on

3 Tuesday or Wednesday?

4 MR. KAY: We -- Ms. Higgins, who has had contact with the witness,

5 believes that there's a good chance that the witness will be available

6 tomorrow. She is flying in now today, and we'll of course keep all

7 parties abreast of developments.

8 JUDGE ROBINSON: And the German who is willing to testify?

9 MR. KAY: Awaiting permission, but a very short distance from this

10 Court.

11 JUDGE BONOMY: But assuming this -- the accuracy of this, which

12 tends to suggest that approval has been given and it's simply the written

13 confirmation that's awaited -- it's Mr. Hensch, is it?

14 MR. KAY: Yes.

15 JUDGE BONOMY: He's not far away and he could be proofed and led

16 this week.

17 MR. KAY: Yes. That's literally just come in, and we will act on

18 it when we're free to do so after the court session, if we may.

19 JUDGE ROBINSON: Very well, Mr. Kay. Thank you. We will adjourn

20 until tomorrow morning at 9.00 a.m.

21 --- Whereupon the hearing adjourned at 10.19 a.m.,

22 to be reconvened on Tuesday, the 19th day of

23 October, 2004, at 9.00 a.m.