International Criminal Tribunal for the Former Yugoslavia

Page 1485

1 Monday, 18 February 2002

2 [Status Conference]

3 [Open Session]

4 [The accused entered court]

5 --- Upon commencing at 4.38 p.m.

6 JUDGE SCHOMBURG: Good afternoon, everybody.

7 Madam Registrar, would you please call the case.

8 THE REGISTRAR: Good afternoon, Your Honour. Case number

9 IT-97-24-PT, the Prosecutor versus Milomir Stakic.

10 JUDGE SCHOMBURG: Thank you.

11 First of all, I have to express my gratitude for the flexibility

12 shown by all of you enabling us to have this conference altogether this

13 afternoon. I do not intend to express this gratitude only in words, but I

14 would encourage all of us to proceed with one and a half hour instead of

15 three and a half hours, as it was planned.

16 May I have the appearances, please. Ms. Korner.

17 MS. KORNER: Joanna Korner and Nicholas Koumjian the Prosecution,

18 assisted by Ruth Karpa, case manager.

19 JUDGE SCHOMBURG: Thank you. Mr. Lukic.

20 MR. LUKIC: Good afternoon, Your Honour. Branko Lukic and Mr. John

21 Ostojic for the Defence.

22 JUDGE SCHOMBURG: Thank you. I should like to address the main

23 person of these proceedings first.

24 Dr. Stakic, can you hear me in a language you understand?

25 THE ACCUSED STAKIC: [Interpretation] Yes, Your Honour.

Page 1486

1 JUDGE SCHOMBURG: Reminding you on the admonitions given the 18th

2 of January, especially the right to be silent. The admonitions are still

3 valid. I have to ask you, do you have anything to raise before the

4 Chamber, including health or physical condition?

5 THE ACCUSED STAKIC: [Interpretation] Thank you for your question,

6 Your Honour. At present --

7 THE INTERPRETER: The interpreter cannot hear the witness.

8 JUDGE SCHOMBURG: The microphone. Interpreter can't hear the

9 witness.

10 Try once again, please.

11 THE ACCUSED STAKIC: [Interpretation] At present, my physical and

12 mental condition is satisfactory. I have no objections, and thank you for

13 your concern.

14 JUDGE SCHOMBURG: Any problems in the United Nations Detention

15 Unit --

16 THE INTERPRETER: Microphone for the judge.

17 JUDGE SCHOMBURG: -- especially what about the problems we

18 discussed the last time as regards your laptop and the audio equipment?

19 THE ACCUSED STAKIC: [Interpretation] I can say that I have

20 received the laptop.

21 JUDGE SCHOMBURG: Thank you. Please be seated.

22 Now, let's turn to the agenda of this afternoon. First of all, I

23 want to start with the question of the start of the trial and the overlap

24 of witnesses. Second question of adjudicated, or better, agreed facts.

25 Third, questions of disclosure and issues of authenticity. Four, issue of

Page 1487

1 the indictment; and five, of course, miscellaneous.

2 Turning to the first point, as you all know, the budget of the

3 ICTY is still frozen. This does, of course, not mean, as it was written

4 in some newspapers, that this Tribunal is close to bankruptcy. It means

5 no more and no less that the so-called sixth case cannot start. The

6 basis of the amendments of our Statute related to ad litem Judges was that

7 the sixth case could be heard parallelly. Unfortunately, it is this case

8 which was always scheduled as the sixth case.

9 Now, it's up to us to suffer from the decisions taken in New York,

10 explained during our last status conference. Nothing has changed since

11 January 18. We cannot expect a new decision from New York before March

12 15. Taking into account the time necessary for the recruitment of two new

13 ad litem Judges and supporting personnel, it will be not possible to start

14 this case before mid-April. Prerequisite, remains, of course, that the

15 budget will be unfrozen no later than March 15. Before that date, no

16 definitive decision can be made.

17 But I'm convinced this case, this concrete case, will not be

18 stopped for so-called budgetary reasons. A decision in the negative or no

19 decision would mean, from a judicial point of view, that the Chamber ex

20 officio has to give an answer to the question - I emphasise to the

21 question - whether or not it's possible, under human right norms, to have

22 Dr. Stakic on detention, trial pending. This question would arise not

23 only for Dr. Stakic but also for other inmates who cannot expect a trial

24 in reasonable time. For the entire Tribunal, therefore, the decision in

25 New York will be a crucial one, and this I have to state from a fiscal

Page 1488

1 point of view, when the additional amounts at stake can be considered as

2 peanuts only.

3 I recall the lines of German journalist from the Frankfurter

4 Allgemeine Zeitung from February 11, who pointed out correctly that the cost

5 for the entire peace-keeping mission of this Tribunal until now, during

6 all the years, did not amount to half the price of a jet fighter.

7 Therefore, to cut a long story short, we can realistically expect to

8 start the trial mid-April.

9 What does this mean for us in concreto? I'm very grateful for the

10 parties' contribution to last Thursday's 65 ter (1)(i) meeting. I fully

11 understand the point of view of the Defence in the interest having a

12 separate trial, and opposed to this, the Office of the Prosecutor aiming

13 at hearing as closely connected as possible to the Brdjanin/Talic case.

14 Balancing the interests and taking into account additionally the

15 principle of directness predominate in all criminal hearings, I intend

16 to proceed as follows: If there are no convincing objections from

17 the parties, I will provisionally schedule that there will be a pre-trial

18 conference Wednesday, 10 April, 2.30, aiming to start the trial

19 Thursday, 16 April.

20 Once again, I have to emphasise this will be a provisional

21 schedule only. Prerequisite is a positive decision on the budget in New

22 York not later than March 15. This is to inform you what will be

23 happening if the same information will be given to the envisaged ad litem

24 Judges and the additional staff necessary to hear the sixth case. The

25 situation indeed is not comfortable for any of us, especially not for Dr.

Page 1489

1 Stakic.

2 But the duty to be expeditious forming part of the concept of a

3 fair trial, should encourage all of us to proceed and prepare whatever

4 possible in the meantime, and here the contributions of the OTP are of

5 utmost importance. We all are aware that we have to avoid that a number

6 of witnesses have to be heard twice or even three or four times. This

7 becomes more and more a question of the entire ICTY, and not only the

8 Stakic case vis-a-vis Brdjanin/Talic. But, of course, what we can do can

9 be resolved now only between these two cases and therefore I took the

10 opportunity of discussing this issue with the presiding judge of

11 Brdjanin/Talic case, and we would appreciate exhausting all the

12 possibilities of article 71. This means all the possibilities we have

13 under the section or the Rule on depositions. In this case, depositions

14 for more than one trial.

15 I do indeed believe that when it comes to question of 71(b), the

16 last part of the sentence, that if it's possible to avoid that a victim

17 comes more than once to The Hague, this already justifies in general

18 the taking of a deposition.

19 This in mind, I would invite you to proceed as follows: The OTP

20 will be required to file in both cases separately, and on a case by case

21 basis, requests to have certain witnesses appear by deposition rather than

22 live in Court. In relation to each witness, the OTP has to identify to

23 what the witness in question will testify. In the words of Rule 71, a

24 statement of the matters on which the person is to be examined has to be

25 added -- and I would really appreciate it if we could go one step further

Page 1490

1 -- and that means to describe to what extent and how that witness is

2 going to identify one or more of the all in all, taking the cases together,

3 of the three accused in person and so on.

4 The Defence team may file a response. On the basis of these

5 motions, the two Chambers will take, independently from each other, a

6 decision in relation to each witness, taking into account information

7 provided by the OTP and the responses to that by the Defence teams. Once

8 these decisions have been taken, practical arrangements can be made. If

9 depositions of certain witnesses are allowed, the respective Defence

10 counsel will be invited to participate.

11 If only one Chamber allows such a deposition, only the Defence

12 teams in that case will be invited to participate. If not, the OTP

13 decides that it's better to have this witness only in

14 one case.

15 If both Chambers allow such a deposition, all Defence teams will

16 be invited. In order to be as expeditious as possible, the initial

17 request of the OTP are expected forthwith in Stakic as well as in

18 Brdjanin/Talic. There are two months to go and it should be possible to

19 have the first depositions available before the 16th of April. The OTP

20 now knows at the same time which witnesses have to be present in the

21 trial. By doing so, the right of all the three Defence teams to

22 cross-examine witnesses is not infringed, and at the same time, hopefully,

23 witnesses have not to appear twice or even more times in The Hague.

24 I know it's, of the bad solutions, probably the best available, but

25 I would invite you to make some observations on this point.

Page 1491

1 MS. KORNER: First of all, can I hand to Your Honour - and

2 unfortunately it wasn't ready before Court, so the Defence haven't had it

3 yet - a list of the witnesses which are shared between the two cases.

4 There is a copy for the Registry, for your legal officer, for yourself,

5 and Defence counsel.

6 Now, Your Honour, perhaps I could ask for some clarification. We

7 file a motion in each of the two cases, suggesting the witnesses which are

8 available for depositions to be taken. Clearly, with this number of

9 cross-witnesses, the majority we would be suggesting by way of deposition.

10 If the Defence -- I'm sorry, if the Trial Judge, if yourself and Judge

11 Agius rule this is suitable for deposition, and the Defence in either case

12 don't object, and by deposition that would mean the witness appearing,

13 presumably here at the Hague with a presiding officer to be in charge, and

14 examination in chief and cross-examination, then I'm not quite clear, is

15 it intended that the examination-in-chief will be conducted and two sets

16 of cross-examination within that deposition?

17 JUDGE SCHOMBURG: As it is planned only, it is envisaged to have

18 one and only examination-in-chief, and when it serves the purposes of both

19 cases, the three Defence teams will be there, and it will be the

20 possibility to participate in the one and only cross-examination.

21 MS. KORNER: Yes. So you say "one and only," clearly you mean one

22 and only for each defendant -- each accused.


24 MS. KORNER: In that event, Your Honour, there is going to be a

25 difficulty about, as Your Honour suggests, the depositions being arranged

Page 1492

1 before the 16th of April because we have, as it were, a full schedule in

2 the Brdjanin and Talic case which will involve the Defence counsel

3 appearing in that Court with one exception. There's a gap of a week

4 before Easter, but Mr. Ackerman, Defence counsel for Mr. Brdjanin, intends

5 to return to the States, he not having been back for some time now. And

6 that, Your Honour, is the only practical problem I foresee if the

7 deposition method is agreed, in that there will have to be an adjournment

8 of the Brdjanin and Talic case in order to achieve that.

9 The suggestion which we made, appreciating Your Honour's intention

10 that there should be a sixth case starting as soon as and if the budget is

11 agreed, was that this case should wait not for much longer, approximately,

12 we estimate, another month, until we reach the Prijedor evidence in the

13 Brdjanin and Talic case so that there can be this, as it were, meeting of

14 the two cases.

15 Your Honour said it's only a provisional date, April the 16th, but

16 did give the impression that its provisionality, if there's such a word,

17 depended on the budgetary considerations. We would ask that

18 Your Honour, subject of course to what the Defence for Mr. Stakic have to

19 say, would bear that in mind.

20 But Your Honour, other than that, we certainly -- we can file and

21 will do as, Your Honour requests, within the near future, a request for

22 these depositions.

23 JUDGE SCHOMBURG: Thank you.

24 The Defence, please.

25 MS. KORNER: Your Honour, could I just mention one matter? I

Page 1493












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Page 1494

1 have been reminded. A number of the witnesses who appear on the list that

2 Your Honour and the Defence have been given do have protective measures

3 within the Brdjanin and Talic case and other cases, actually, so I would

4 be grateful if they could be kept confidential. We handed it out and it

5 should not be filed.

6 MR. OSTOJIC: Good afternoon, Your Honour. John Ostojic. We just

7 like, on behalf of Dr. Stakic, to ensure that we have an adequate

8 opportunity to cross-examine these witnesses. So if it's by way of direct

9 testimony in Court or through the deposition Rule 71, we will go the route

10 that the Court suggests, however, we would like to have ample time and

11 opportunity to cross-examine those witnesses, essentially. We don't want

12 to rely - and perhaps we should in some instances - but we certainly don't

13 want to rely that others will cross-examine particularly as it relates to

14 our client. So that's the one point we would like to stress.

15 JUDGE SCHOMBURG: To come back first of all to your point: I have

16 no doubt that this envisaged schedule allows that you have the same right

17 to cross-examine as it would be in Court, because you have, of course, the

18 right always to be present, and then to make the cross-examination.

19 Yes, it's right, all of us are concerned with the time

20 problem, but it will be necessary, to a certain extent, to work on a

21 shift basis to hear the one or other witness, a witness in the afternoon

22 when Brdjanin/Talic is heard in the morning. Unfortunately, we can't

23 avoid it. And probably, it will be even possible, yes, to make use of all

24 of the time. There will be an adjournment, as you said, for one week, but

25 we try to convince all the parties in two cases that we can proceed with

Page 1495

1 the witnesses as soon as possible. But please, let's first of all, if -

2 and it seems to be agreed - it is agreed that this way is feasible, that

3 we start, and then we can see which is the real exact number of witnesses

4 where we need to have these depositions.

5 Because admittedly, it could be the case that having read your

6 contributions, what will this witness contribute? How important is the

7 testimony for the entire case? Even if both parties agree, it could be,

8 and I would give this admonition already now for the parties, that it

9 could be that the Judges themselves want to have a witness as a live

10 witness viva voce here in the courtroom. And therefore, first let's find

11 out, and really it's up to you to describe as exactly as possible what the

12 witness will say. We'll come back to this

13 later when we are discussing Rule 66, the copies of the written statements

14 taken in accordance with Rule 92 bis probably, and other former hearings

15 of these witnesses. This would help a lot, and I -- yes, I only can ask

16 you to proceed this way when it's possible for you.

17 MS. KORNER: Your Honour, two matters: First of all, I think -- I

18 think that a transcript of this hearing ought to be available to the

19 Brdjanin and Talic teams. I did mention to Mr. Ackerman this morning that

20 we were appearing, and there would be a decision, and he may wish to

21 watch. I don't know where he is. But we'll certainly make -- if

22 arrangements could be made so the transcript is made available to them as

23 well.

24 And the suggestion we make, and I take Mr. Koumjian's suggestion,

25 is that we file a motion for deposition in both cases, we then see what

Page 1496

1 the picture is between the two Trial Chambers, and if there seems to be a

2 general agreement all around, I think it must be for the Trial Chambers

3 rather than us to work out the appropriate schedules.

4 And in respect of Your Honour's second point, we can attach the

5 statements to the motions, so that we'll file them confidentially,

6 obviously, and then the statements will be available.

7 JUDGE SCHOMBURG: I thank you very much. I believe it would be

8 helpful for all of us, and then we can decide with a substantiated basis.

9 Okay. Just one issue remaining: The same will apply, of course,

10 when later we have to observe an overlap in the framework of Defence

11 witnesses, and we have to try to do the same.

12 Okay. Then we come to the second point, the so-called adjudicated

13 facts and the question of expert witnesses. I observe with sympathy that

14 the OTP withdraw the motion on adjudicated facts. May I ask both parties,

15 did you come to conclusions on agreed facts? I prefer this notion of

16 agreed facts because, as regards history, the phrase "adjudicated facts

17 seems rather less helpful, to put it diplomatically.

18 MS. KORNER: Your Honour, we haven't had an opportunity I'm

19 afraid, of meeting either with Mr. Lukic or Mr. Ostojic, but before the

20 trial, I'm sure we can come to some arrangement and some agreement. I see

21 nodding from my friends. At the moment, we haven't come to any agreement

22 as to the form or what can be agreed, if you see what I mean. So Your

23 Honour, I'm afraid nothing has moved since the 14th of February.

24 While I'm simply on my feet and before I forget, Your Honour, we

25 were in receipt of the note prepared by Ms. Ameerali of that meeting.

Page 1497

1 This is no criticism at all of Ms. Ameerali, who didn't know anything

2 about the case in particular; the summary, we found, could be in some

3 respects perhaps misleading and we've prepared for Your Honour and for

4 counsel for the Defence, and expanded version, taken from the notes of Ms.

5 Karper, which we've handed to Your Honour.

6 JUDGE SCHOMBURG: I am grateful for this, but I have to admit that

7 I never intend to correct or to add something to minutes taken because,

8 more or less, we all know what we said in such a meeting and it would be

9 to a certain extent misleading if we exchange comments on minutes. But if

10 a party regards this as necessary, of course, we take it to the file. Did

11 you provide the other party also with the same document?

12 MS. KORNER: Yes.

13 JUDGE SCHOMBURG: Thank you for this. To come back to the

14 question of adjudicated facts and expert witnesses on history, I carefully

15 thought about this, and I believe there will be no -- it will not be

16 possible to find a solution between the parties, having read your

17 contribution, having read your pre-trial brief.

18 Wouldn't it be a good idea, and this is for today only a

19 suggestion, to have a kind of prologue to the trial. For example, let's

20 have one day to give both parties a possibility to grant a view - I

21 emphasise a, not the view - a view on history. The experiences in other

22 cases in former times, when the Trial Chamber has heard Mr. Donia two or

23 three days, I don't believe this is a real good approach. What we need is

24 this: Of course, we need all the background. To a certain extent, it's a

25 question of a historical background starting in 1990. I don't believe

Page 1498

1 there's any problem between the parties. And I'm afraid it's rather

2 limited where we come to an agreement.

3 But as regards history before 1990, of course it's of some

4 interest, of course also for the Judges, to hear views on the history of

5 the former Yugoslavia. It serves to better understand

6 history, and of course, also the cases and the acts committed in former

7 Yugoslavia since 1991. We are mandated only for this.

8 But if there could be given a rather short view by an expert,

9 not an expert witness, by an expert offered by the OTP, and on the other

10 hand, an expert granting us an insight view of history from the point

11 of view of Dr. Stakic, it would be interesting, especially for the

12 Judges, to find out what are the different approaches to history, what is

13 your history, your view of history, Dr. Stakic, and of course we can't

14 take this as a part of taking evidence. I mentioned this in extenso

15 during our last hearing, and our limited mandate, I really do not intend

16 to accept any kind of proof of history. But to give us some background

17 information, and the different views opposed to each other, I would

18 appreciate it if the parties could take into consideration this challenging

19 possibility, before the opening statements are made, to have one day an

20 exchange of different views of experts.

21 MS. KORNER: Does Your Honour mean without a shorthand writer, in

22 a sort of informal setting?

23 JUDGE SCHOMBURG: It can be the normal setting of this Trial

24 Chamber with all the other prerequisites and under the normal Rules but we

25 can't regard this as evidence taking. It is granting us a view. And I

Page 1499

1 believe to overcome some problems and to bridge some gaps, we also here,

2 we have to be inventive.

3 MS. KORNER: Your Honour, the difficulty is -- perhaps I can

4 explain: There are two aspects to this, one is, as Your Honour says, to

5 give you a picture of the former Yugoslavia and its development, which can

6 be done in writing, and it can done in writing by both sides. And indeed,

7 Dr. Donia's report on the background will be submitted in writing. But

8 the Prosecution does say it's not just that you can't look at the events

9 that happened in Prijedor without some knowledge of what happened in

10 earlier times. I don't mean 1389, but going back.

11 I'm afraid what happened briefly in the Second World War is, in

12 our submission, going to be relevant because it has an effect, we submit,

13 on what happened in Prijedor, why what happened did happen. And that is

14 something that is not just amorphous historical background, it has a

15 direct bearing on the evidence. And our submission will be that it should

16 be part of the trial evidence, because that's, we anticipate -- we haven't

17 yet got the section on Prijedor from Dr. Donia because he's only just

18 finished with Brdjanin and Talic, but we anticipate that it does have a

19 direct bearing. So our submission would be that it should be part of the

20 trial.

21 Any arguments that were raised in the pre-trial -- I'm sorry, the

22 response, and the pre-trial brief by the Defence to the view of history

23 which doesn't directly deal with that, it perhaps doesn't help matters

24 much, but parts that do directly go to what happened, we say is relevant,

25 is admissible, and should form part of the trial.

Page 1500

1 JUDGE SCHOMBURG: I don't want to repeat today that what I said

2 the last time on evidence on history. But you should be aware that it's a

3 real concern from my side, having read what was said in former trial

4 hearings on history. I wonder whether the OTP can provide us with the one

5 view on history and tell us, this is the point, these are the

6 roots, these are the facts finding their way, and then proving the link to

7 the acts committed in former Yugoslavia since 1990.

8 I don't believe it's possible. The OTP represents the interests

9 of the international society, and I wonder whether there is one picture on

10 history before 1990 in former Yugoslavia. And therefore I can only

11 ask you to refrain from doing so. Possibly the Trial Chamber, if you

12 insist, of course has to decide on this. But I am not ready to include

13 any kind of evidence and any kind of proven history in a judgment if it

14 comes to a judgment. That's perfectly clear from the outset.

15 What is the position of the Defence?

16 MR. LUKIC: Your Honour, to be honest, we didn't plan to have any

17 kind of historian in this case. What we are concerned mainly, and we are

18 still concerned about, the core issue of the case, and about the criminal

19 responsibility of Mr. Stakic. So we would like to skip these historian

20 lessons, and Mr. Stakic is a pretty young man so he doesn't remember the

21 World War II and what followed. And we don't think that it's necessary.

22 If Your Honour orders us to have one historian as a reply to the

23 OTP's historian, we will do so. But as I said, we would rather skip it

24 and have a core issue discussed. We would prefer that way of thinking.

25 Thank you.

Page 1501

1 JUDGE SCHOMBURG: Thank you for this contribution. And of course,

2 it's this kind of prologue could only serve for bridging the gap between

3 the parties because you mentioned it already two or three times that you

4 do not want to make extended contributions. On the other hand, you

5 already told us, just in case the Office of the Prosecutor will come with

6 so-called adjudicated facts on history, then you will oppose your view of

7 their history.

8 And indeed, at first glance, it makes more sense to have the

9 view on history and the view of the environment and the way Dr. Stakic was

10 socialised in former Yugoslavia, and to find a link between this growing

11 up in a special society, in a special environment, and what kind of impact

12 it has on the acts, the alleged acts committed in former Yugoslavia. This

13 would be of more interest than to have a fight between historians here in

14 the courtroom. This doesn't make sense at all and I'm not ready to hear

15 this.

16 Please.

17 MS. KORNER: I'm sorry, I'm not sure what Your Honour wants me to

18 say now. Your Honour, we will file in any event, as we have to, an expert

19 report. And Your Honour can then have a look at what's said and, may I

20 suggest, make an informed decision once you see what it is we want to say.

21 JUDGE SCHOMBURG: Okay. But in principle, I just want to repeat:

22 If necessary, we take both parties on the history before 1990, or none of

23 the parties. It's up to you to decide which solution you want to take.

24 It's only an offer from the side of the Court. Otherwise, in principle,

25 as I mentioned already the last time, I'm not ready to hear anything on

Page 1502












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Page 1503

1 evidence - and I emphasise on evidence - on history.

2 What about, now, bringing us to Point Number 3, what about

3 disclosure? We discussed it the last time. We found some contributions

4 in your pre-trial brief, or the response to the pre-trial brief.

5 MS. KORNER: Does Your Honour want me to go through a list of what

6 has been disclosed?

7 JUDGE SCHOMBURG: We can limit it to the problems we have, I would

8 say. We received -- the Trial Chamber received the first 400 documents or

9 exhibits last Friday, and I believe the same is true for you.

10 MS. KORNER: Your Honour, I can tell Your Honour that -- on

11 exhibits, we disclosed, Your Honour rightly says, last day of the -- the

12 65 ter conference, whatever it is. There are 423 exhibits which remain to

13 be disclosed. There are 120 exhibits awaiting translation. Sorry, I'm

14 just reading the note.

15 I'm sorry, I'll say that again. 120 exhibits, which is 15 percent

16 of the total exhibits, remain to be translated. All of them have been

17 submitted to the translation unit. The vast majority, I'm told, are under

18 five pages.

19 Then, Your Honour, on witnesses, we disclosed on the 18th of

20 January -- I'm sorry, I should say about 20 remain to be translated. Yes,

21 we've disclosed approximately 265 translations? Right. There are 20

22 which remain to be translated. Of trial transcripts, 47 tapes remain to

23 be disclosed, and we are awaiting those tapes. I'm told we may be able to

24 disclose some today.

25 They have been disclosed. And then there are trial transcripts on

Page 1504

1 which we're still awaiting a decision, I think.

2 JUDGE SCHOMBURG: Any problems with the disclosure until now from

3 the side of the Defence? First of all now only as regards 66 disclosure.

4 MR. LUKIC: Your Honour, I have to be honest with you that we

5 didn't have time yet to check all disclosed materials by the OTP. I

6 neither can oppose nor I can confirm what my learned colleague just said.

7 I know that we haven't received 47 audio tapes as they just mentioned. I

8 guess here we have probably 20 or something like that. But I know that

9 some witnesses are missing, and it's obviously, from the numbers, from the

10 last binder it says something like Witness number 58, Witness number 68,

11 and Witness number 89. So I'm not sure, but something like that, so

12 obviously something is missing regarding the witnesses.

13 About exhibits, I really cannot confirm fully what has been

14 disclosed, what hasn't. But when we -- we haven't signed the receipts

15 yet, so I have to check first and then to sign the receipts, and then it

16 will be obvious what has been disclosed.

17 JUDGE SCHOMBURG: It is easy to understand. On the other hand, in

18 your Defence response to the Prosecution's pre-trial brief, in paragraphs

19 87 -- in paragraph 87, you made some observations. Is there still a

20 problem, or are all the points resolved you addressed there?

21 MR. LUKIC: I'm not sure whether everything is resolved, but some

22 of them I saw later on in disclosed materials. So I'm sure that we

23 received something, but I'm not sure whether we received everything. I

24 have to check again.

25 JUDGE SCHOMBURG: Contributions from the side of the OTP to this

Page 1505

1 paragraph 87 especially?

2 MS. KORNER: Your Honour, I'm told that if the witness -- it's not

3 that there are any witness statements missing, it's just numbers weren't

4 used. There's no missing statements between 58 and 68. It may have been,

5 originally had been allocated, we intended to disclose but changed our

6 minds or something like that.

7 JUDGE SCHOMBURG: Yes. This brings me to point 8 of your

8 contribution. There you mention that a document is not signed. It is

9 without a date and the protocol number so the Defence doesn't know whether

10 it's a draft or a final document. Due to that, the Defence challenges the

11 authenticity of these documents, and going on, as well as all the other

12 unsigned and undated documents without an official protocol number.

13 This brings us to a question we will have ongoing during the

14 entire case. And my idea would be the wheel should not be invented twice.

15 As regard authenticity: Of course you are aware of the jurisprudence of

16 the Trial Chambers that first of all, in principle, it is a question of

17 the evaluation of evidence to find out whether or not there is some

18 probative value at all. But only secondly, the question of admission of

19 evidence.

20 I want to direct your attention on a decision of Trial Chamber II

21 in the case of Prosecution versus Brdjanin and Talic. And there you can

22 find balancing the interests of the parties 10 or in fact 11 rules how to

23 proceed in general. And I would appreciate --

24 MS. KORNER: I don't think you need to direct your attention to

25 it, Your Honour.

Page 1506

1 JUDGE SCHOMBURG: But to the other side probably. You are in a

2 very special and advantageous situation, and therefore it's necessary to

3 address also in this case, the other party.

4 The Defence counsel, first of all, if we could address that we

5 work on this basis. I don't know. You will not be aware of this decision

6 of the 15th of February, Mr. Lukic?

7 MR. LUKIC: Your Honour, first of all, we think this that this is

8 a matter of relevance, not of weight. Although all the Judges are

9 professional Judges, we still think this issue is a matter of relevance,

10 not weight. So we first have to establish whether such a document has

11 ever existed, and then to be able to give it any kind of weight. If we

12 don't know whether it has ever existed or it's a draft or it was a

13 final document, how can we give it any kind of weight?

14 So that's why we objected, and that's our main point. And I think

15 that although it's not from my system, but I know that it's from the anglo

16 saxon system that you have to first establish the relevance and then to

17 give any kind of weight to the document.

18 JUDGE SCHOMBURG: Yes, indeed. But I believe your contribution is

19 really in line with a decision made by Trial Chamber II, and I would

20 invite you to have a look at this document. And I would appreciate it if

21 also the Defence team in this case could indicate whether or not you are

22 ready to live under these special guidelines in this case. And I would

23 ask you, you will be provided with this document as soon as possible,

24 to -- that when there are no objections from your side before March 15,

25 then we would go on and would proceed on the basis of these guidelines in

Page 1507

1 Brdjanin Talic.

2 MR. LUKIC: I have to admit that I haven't seen that document yet.

3 JUDGE SCHOMBURG: I will give it to you, and please make your

4 observations if necessary, especially when you want to raise any

5 objections against this kind of proceeding. Otherwise, I would prefer to

6 go on this way.

7 MR. LUKIC: Thank you, Your Honour.


9 As regards the copies of the statements, you already have been so

10 kind telling us that you will provide us with the copies of the

11 statement. Indeed, this will facilitate our work enormously.

12 MS. KORNER: Your Honour, we were suggesting it in relation to

13 depositions. But if Your Honour would like them, as with the Brdjanin

14 Talic trial, we will provide the statements of the witnesses as well.

15 I'm sorry. I have been given a correction, or I have been asked

16 to add something to this question of witness statements. There will be

17 some changes being made to the witness list because there has been a

18 consolidation of the two cases, of the teams. It's one team, two cases.

19 And so we anticipate there may be fewer witnesses, but we will file

20 Rule 65 ter statements for any new witnesses that we decide to call.

21 The other matter is - I don't know whether Your Honour is going to

22 come to it - Rule 68.

23 JUDGE SCHOMBURG: Just the point right now.

24 MS. KORNER: Can I say, we have completed all the present

25 searches, but there are still ongoing searches of other material. But of

Page 1508

1 the searches we've completed, we've disclosed all material which we

2 consider to be Rule 68. And since the last status conference, we have

3 identified that which we consider to be pure Rule 68 material, so that has

4 been done.

5 JUDGE SCHOMBURG: Thank you. I just wanted to remind you that as

6 from January 18, it was agreed that it is indicated, from your point of

7 view, as 68 material.

8 MS. KORNER: That's what we've done. Anything that has been

9 disclosed since January. It has to be said that the searches are not

10 complete yet. But with the documents in this case, this could be an

11 ongoing situation. Can I raise this, because it was raised --

12 JUDGE SCHOMBURG: Also regards 68, otherwise, I would just ask the

13 Defence counsel. Do you have any problems with 68 disclosure right now?

14 MR. LUKIC: As you know, Your Honour, we got what

15 we got. We don't know whether we have any problems or not. We hope

16 not.

17 JUDGE SCHOMBURG: But it was marked as 68. Mr Lukic: Yes.

18 MS. KORNER: Your Honour, on the last occasion, the question was

19 brought up of the offer that apparently was made, as it were, that the

20 Banja Luka collections and the Prijedor collections would be supplied on

21 CD-ROM. And Your Honour rightly, I think it was Mr. Lukic made the point,

22 or Mr. Ostojic, that in fact, having dealt with us, we had raised the

23 question that an entitlement could only arise if the application was made

24 under Rule 66[B]. Your Honour, I heard what was said, the suggestion

25 that we were trying to hide something. A letter was written to Mr. Lukic

Page 1509

1 on the -- I wrote down the date. I think it was the 2nd of -- I'm sorry,

2 the 20th, two days after the Status Conference, the 20th of January

3 stating that there was no such intention, but that the rules had to be

4 adhered to. And if an application was made under Rule 66[B], the

5 whole collections on CD-ROM would be supplied. We've had no response to

6 that letter, and I merely raise it now so that Your Honour is aware of the

7 position.

8 JUDGE SCHOMBURG: Can we probably right now resolve this problem?

9 MR. LUKIC: Your Honour, we haven't decided yet whether to use

10 Rule 66[B] or not. But the last time we raised the issue of those

11 documents which have been taken from the authorities in Banja Luka and

12 Prijedor area to which we do not have access, so not that those documents

13 should be disclosed to us because we do not want to go and find them by

14 ourselves but because we cannot, because they have been taken away.

15 Whether we are going to use Rule 66[B], we haven't decided yet.

16 And as you know, Rule 65 has been changed, and now everybody is obliged to

17 disclose all the materials according to the list prior to its case. So I

18 have to consult with my co-counsel today, and probably that decision would

19 be made today or day after. Thank you.

20 JUDGE SCHOMBURG: Okay. You will answer to the letter of the OTP

21 directly. Thank you.

22 Any other issues in respect of Rule 66, 68? Nothing. Okay. This

23 brings us to the last but important point. We are all aware that the

24 Office of the Prosecutor intends to have an updated form of the indictment

25 or adapted to Brdjanin Talic or whatever the language will be.

Page 1510

1 What is the point right now?

2 MS. KORNER: Your Honour, we took the view that the indictment as

3 drafted was a somewhat less than easy document to read, and that there

4 were certain aspects of it that could be tightened up. We hoped to be

5 able to submit it to Your Honour and to Defence counsel today. We're

6 still doing some fine tuning on the last parts. We hope that it will be

7 of assistance. I know Your Honour doesn't like written motions. All

8 we're going to do is submit it with a covering motion saying "Here's what

9 we would like Your Honour to rule on" and if there are any objections from

10 the Defence, and we can do it by the end of this week we hope.

11 Certainly -- I say that the only reason I hesitate slightly is that I'm

12 aware there's a UN holiday on Friday. But at the very latest, we would

13 file next Monday.

14 JUDGE SCHOMBURG: Yes. I really appreciate this. And I would say

15 it's rather better to take one or two days longer and then have a perfect

16 document enabling us to understand a little bit better what the case shall

17 be. And probably this would bring us to, say, 25th, 28th, the end of

18 February. And then we could expect the Defence, if they regard it as

19 necessary, to file a response not later than the end of March.

20 This would be -- normally one could say you don't need the entire

21 30 days because you have prepared already and it's just a question of

22 updating, but we should need really as regards the indictment all the

23 time to be better prepared and probably to save some time when it comes to

24 the trial.

25 But when there is a new indictment, the question is: will

Page 1511












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Page 1512

1 there also be a kind of updated Pre-Trial Brief and what about the list of

2 witnesses? And here, once again, it was mentioned before, I would

3 appreciate it if this list could be more detailed, indicating what the Office

4 of the Prosecutor expects as the outcome of the testimony of this witness,

5 and especially in relationship to all the counts relevant for this

6 witness's testimony. And as you already offered, to grant us access to

7 the statements made by the witnesses beforehand that it's -- yeah, we have

8 to take into account that all the -- the indictment, the Pre-Trial Brief,

9 and additionally, the list of witnesses, they have -- this has more or

10 less the main functions to inform those, the Trial Chamber, and the

11 Defence counsel and granting the possibility to prepare an appropriate

12 Defence., And where it's necessary to be, indeed, from my point of view,

13 a little bit more precise. I don't know to what extent you are prepared

14 to be even more precise than in former contributions.

15 MS. KORNER: Well, Your Honour, I'll read Mr. Koumjian's note to

16 me.

17 JUDGE SCHOMBURG: What about privacy?

18 MS. KORNER: We apparently have a 90-page document which we can -

19 I think I'll miss out the next words which I'm not sure is legal

20 language - which we can produce for Your Honour. We'll try and reduce it

21 from 90 pages, which doesn't help much, I think, which would show what

22 each witness will testify as to each point. We hoped again to have here,

23 Your Honour, again today a chart which showed the incidents and the

24 witnesses that would attest to it. But again, it's a question of trying

25 to make it perfect, so it's not quite ready today. But we take Your

Page 1513

1 Honour's point, and we will produce a document to that effect, that is,

2 showing what the witnesses actually go to in the indictment.

3 JUDGE SCHOMBURG: And additionally, I just wanted to point this

4 out also - it's for the record first of all - that I would appreciate that

5 the counts themselves not be ambiguous. Just to give you one

6 example, whether or not, for example, Dr. Stakic has ordered something or

7 he has instigated or incited something, or has omitted to do something.

8 If the latter shall be the case, it is the possibility the fact in general

9 to act or to order is demonstrated. In short, the link between one

10 alleged capacity of Dr. Stakic and the acting group and their acts has to

11 be demonstrated. Or, in another case, the other way around.

12 Starting with the direct crimes, we can expect it be

13 demonstrated which, to give you another example, exactly which military,

14 paramilitary, or police group is regarded as the acting one. And not to

15 leave it in the words of Kupreskic case, to a guessing game for the Trial

16 Chamber to find out what is the concrete unit you regard as

17 responsible for a concrete crime committed and, in addition, to the

18 concrete responsibility of Dr. Stakic vis-a-vis this concrete unit. This

19 would be rather helpful.

20 MS. KORNER: Your Honour. I appreciate that. But there are two

21 matters: Firstly, there is a difference, and the jurisprudence has dealt

22 with that, between the actual perpetrators, which the Kupreskics were -

23 they were actually personally accused of committing the offences - and

24 those who are in a position of authority. And I believe there's also

25 jurisprudence to this effect: That at this stage of the game, if I can

Page 1514

1 put it that way, though "game" is not the right word, this stage of the

2 process, to have to pick the form of liability, in other words, was it

3 ordering, committing, instigating, aiding and abetting, is not required of

4 the OTP. Clearly at a stage when the evidence has been given, the OTP

5 will be required to state what they say on the evidence. But for the

6 indictment purpose, we would submit that we are obliged to state the forms

7 of liability that are available to the Chamber.

8 We do in one case, and I know Your Honour is referring to one

9 particular -- I don't unfortunately have a copy of the indictment with me

10 at the moment, where it is said, because it is a very full indictment,

11 that Stakic ordered, as it were, the motorised brigade to take action.

12 And we discussed that in Your Honour's conference, and I've made it clear,

13 and it will be made clear, that we do not suggest that Stakic has the

14 power to make -- to give a military order. What we do suggest, however,

15 is that he acted in conjunction with the military on these particular

16 aspects, and that we will be suggesting that he does have a certain amount

17 or did have a certain amount of power to deal with -- to influence -- not

18 to influence, to effect the military because, of course, the Crisis Staff

19 in Prijedor was responsible for logistics in respect of the military.

20 But, Your Honour, we would submit that in the indictment, we are

21 not -- we are not required by the Rules to provide the sort of very close

22 detail that Your Honour seems to be asking for. That, we would submit, is

23 a matter of evidence as opposed to charging.

24 JUDGE SCHOMBURG: I'm afraid that I have to tell you that when

25 reading the contribution of the decision of Trial Chamber I from the 13th

Page 1515

1 of November by Judge Rodrigues, I'm afraid we'll have here a little bit

2 less liberal approach, put it this way. Because from the point of view of

3 the Defence counsel, it's different whether or not you have to prepare a

4 case against the -- an alleged order or against an alleged omission. And

5 therefore, I totally agree that the motion of committing a crime is a very

6 broad one, and it has nothing to do with a direct perpetrator at all. But

7 what we really can -- what I believe we can really ask you to do is, as

8 you mentioned it, in connection with what order, that it's quite clear, is

9 it more a committing or is it more omitting?

10 As I mentioned before, is it more an acting or is it more or less

11 inciting or instigating a crime? And because there will be necessary

12 different Defence strategy, I believe it is necessary to serve these

13 purposes that you already, from the outset, try to define and restrict

14 yourself to certain counts and to certain allegations. And knowing that

15 under the jurisprudence, of course, cumulative charges are possible, if

16 it's -- put it this way: If it's possible for you to point out already

17 now which counts you, in effect, can delete from the huge number of counts

18 we have already in the indictment, this would be of great assistance

19 because we have to live, of course, in our environment of the Statute and

20 the Rules.

21 When I started and learned as a public Prosecutor, I learned that

22 the word "or" in an indictment is always wrong because one has to be quite

23 clear, and the other side has to know what it's all about. And please

24 understand that coming from this point of view, I would really appreciate

25 to have a more stringent indictment enabling both the Tribunal, the Trial

Page 1516

1 Chamber, to understand your case and to facilitate the work of the Defence

2 counsel in preparation of this case.

3 MS. KORNER: Your Honour, I understand. I think at the moment,

4 however -- I mean, I say I understand. It does at the moment seem to me

5 that what Your Honour is asking for is effectively a complete breakdown

6 within the indictment of the evidence that is going to be called. Now,

7 Your Honour, the requirement is that an accused must know what he is being

8 charged with. And we would submit, perhaps it's not the clearest in the

9 way it's set out in this indictment, and that's what we're trying achieve,

10 clarity. But it does seem at the moment that Your Honour is asking us to

11 go a bit further and effectively say in each particular incident -- and

12 Your Honour, each count is comprised of a number of different incidents in

13 which the involvement of the accused may vary from one type of incident to

14 another. In some incidents, it may be more direct than in others. And we

15 would submit that that is a matter of evidence to be dealt with in the

16 trial, provided it's made clear and it will be when it's opened, how we

17 put the case. But the indictment only needs to show what the charge is

18 and what it is the defendant is charged with.

19 Your Honour, it seems to me at the moment, we're going to do our

20 best to try and comply with Your Honour has indicated today, and we'll go

21 away and read again what Your Honour has said. But it may be that at the

22 end of the day, Your Honour is going to have to look at what the

23 indictment we submit and tell us.

24 JUDGE SCHOMBURG: I'm of course very interested to see this new

25 indictment. I'm quite sure you are on the right track. And admittedly,

Page 1517

1 it's quite clear it's not here in this environment, it cannot be a

2 question of evidence because it's up to you to provide new evidence during

3 the case, no doubt. But when it comes to the charges, it should be at

4 least clear that charges excluding itself, they are eliminated from the

5 indictment. It can be only either a direct influence of the person or an

6 omission. And this should be clear. This was my point. And hopefully --

7 but I'm quite clear also after the deliberations last Thursday during the

8 65 ter (i) meeting, I believe it will be good enough, as I mentioned, the

9 connection between the indictment, the updated Pre-Trial Brief, and the

10 list of witnesses with the additional information you already offered.

11 Observations from the Defence to this point.

12 MR. LUKIC: Your Honour, as coming from the European system of

13 law, I understand you very well what you mean when you are trying to

14 impose all those obligations to the opposite side. So I agree with them

15 fully, and I think that it would be much easier to follow the whole, the

16 indictment in whole. I don't know whether the Prosecution is ready to

17 fulfil all the obligations, but we look forward to see the final version

18 of this indictment.

19 And one more thing regarding this change: I don't know whether

20 this indictment should be the third indictment, or it should be the second

21 reorganised, reorganised indictment. We should know also what kind of

22 foil would this be?

23 MS. KORNER: Your Honour, for simplicity, we'll call it the third.

24 Your Honour, I just mention one thing: Your Honour, I think one of the

25 things we all have to be careful of is -- I come and Mr. Koumjian comes

Page 1518

1 and I think Mr. Ostojic comes from a completely different tradition where

2 the indictment says nothing. It says A murdered B, and that's it. But

3 What we have to look at is what does the Tribunal jurisprudence require us

4 to do.

5 JUDGE SCHOMBURG: Right. No doubt. And there are different

6 approaches, of course, and you already now can identify some more liberal

7 tendencies in the framework of Trial Chamber I. Especially my predecessor

8 in Trial Chamber II had a totally different approach, and I believe the

9 best also as regards indictments is to find out what serves the interest

10 of justice best. Both have their pros and cons. And so therefore, I'm

11 quite sure that we, at the end of the day, can live with a package,

12 with a new package from the Office of the Prosecutor including

13 additional -- the updated Pre-Trial Brief. And there's a list of

14 witnesses, and then we can find out.

15 But we all have to make use of the time granted us by the

16 responsible authorities in New York. And if it could lead us to a

17 situation that we can finalise the proceedings and the trial at the same

18 time as it was scheduled in the beginning, it would be a good outcome.

19 And I really want to invite you to work hard, all the parties, on this

20 case, that it's not -- that the acts and the omissions in New York are not

21 to the detriment Dr. Stakic in the end.

22 Brings me to point 5 of the agenda: Miscellaneous. Any

23 contributions from the OTP?

24 MS. KORNER: No, Your Honour.

25 MR. LUKIC: No, Your Honour. Nothing from the Defence as well.

Page 1519












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Page 1520

1 JUDGE SCHOMBURG: Okay. Thank you.

2 Then it's time to finalise for today. I'll tell you immediately

3 when I have heard some news from New York whether or not it's feasible to

4 go on with this provisional schedule. As mentioned, we will then have the

5 Pre-Trial Conference 10th of April and start the trial the 16th. This

6 would mean at the same time that it's recommendable to have a 65 ter

7 meeting with the senior legal officer in the last week of March. And

8 here, I would ask you to come together with our senior legal officer, Mr.

9 Von Hebel. In order to make an appointment, I don't know when you will be

10 here in The Hague or not.

11 MR. LUKIC: We are not going to be here in Den Haag or The Hague,

12 but we can come at any time when we are called.

13 JUDGE SCHOMBURG: Okay. Then you fix this date.

14 And I have to thank all of you for working once again in the

15 spirit of cooperation. And hereby, let's call it the end of the day.

16 Thank you.

17 --- Whereupon the hearing adjourned at

18 5.56 p.m.