Page 1863
1 Friday, 19 April 2002
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.02 a.m.
5 JUDGE SCHOMBURG: Please be seated. Good morning, everybody. May
6 we today call the case, please.
7 THE REGISTRAR: Good morning, Your Honours. This is case number
8 IT-97-24-T, the Prosecutor versus Milomir Stakic.
9 JUDGE SCHOMBURG: Thank you. You can already hear from the fact
10 that I emphasise the word "today" that apparently yesterday I forgot to
11 ask the registry to call the case. I apologise formally for this, and the
12 same is true for the appearances. Please, could you not only give the
13 appearances from today but also from yesterday for the record.
14 MR. KOUMJIAN: Nicholas Koumjian today, assisted by case manager
15 Ruth Karper, and yesterday the Prosecution was represented by Andrew
16 Cayley, and then Nicholas Koumjian, and then assisted by Ruth Karper, case
17 manager.
18 JUDGE SCHOMBURG: Thank you. And for the Defence, please.
19 MR. LUKIC: Good morning, Your Honours. Branko Lukic, along with
20 Mr. John Ostojic, today and yesterday as well.
21 JUDGE SCHOMBURG: Thank you. Let us now turn, before we go on
22 hearing Witness 39, turn to the question of Witness 5 and 10. Your
23 remarks, please.
24 MR. OSTOJIC: Your Honour, thank you very much. Good morning.
25 We've reviewed the statements again and reviewed Rule 92 bis. With
Page 1864
1 respect to that, we do not have an objection to the statements coming in,
2 but we just want to make it clear that we have an opportunity to the
3 limited extent given by the Court to cross-examine these witnesses after
4 the statement has been provided.
5 In parts of the statement it could be arguable that in fact
6 matters do go to acts and conduct of the accused. We don't want to
7 address those arguments perhaps today, because I don't believe the Court
8 has the statements in front of them. To the extent that the two sides
9 cannot resolve that, we may address that issue with the Court and then ask
10 the Court to either strike those portions of the witness statement or to
11 give us greater latitude in cross-examining the witness on those issues.
12 JUDGE SCHOMBURG: The Trial Chamber will decide after the break.
13 MR. KOUMJIAN: If I could just address that point, Your Honour. I
14 understand that the Court certainly has the discretion to permit
15 cross-examination of a witness whose statement is admitted pursuant to 92
16 bis, but I don't think that the mere request is automatic from the Defence
17 that that be granted. The main purpose -- or one of the purposes served
18 by admitting testimony in this manner is to avoid the necessity of the
19 witness travelling here. So I'd ask the Court to ask counsel for some
20 kind of offer of proof, some kind of showing of why the cross-examination
21 would be necessary for those witnesses. I don't know if you want to do
22 that now, but if the Court is admitting these because it's more or less
23 cumulative, why do we need to bring these witnesses to The Hague to have
24 that cross-examination?
25 JUDGE SCHOMBURG: Thank you. As I said before, there will be a
Page 1865
1 decision immediately after the break. But we shouldn't waste time now,
2 and turn immediately to our Witness 39.
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22 --- Recess taken at 10.17 a.m.
23 --- On resuming at 10.39 a.m.
24 [Open session]
25 JUDGE SCHOMBURG: Please be seated. Coming now back to the
Page 1892
1 question of 92 bis, making it quite clear. The question until now only
2 was to decide on the motion of depositions, and it is hereby clear that a
3 hearing via depositions will not be accepted, and it still remains either
4 a question of viva voce or 92 bis. A decision on 92 bis today is not yet
5 ripe because we still have the time limit, and probably the Office of the
6 Prosecutor will have some additional material to be introduced also for
7 these two witnesses under 92 bis.
8 So this brings us to the point that the motion on deposition is
9 moot now, and sorry for the delay, but I had to discuss this in short with
10 my colleague Judge Agius, presiding over the case of Brdjanin and Talic,
11 and to avoid any misunderstandings, also the hearings via videolink have
12 to be exercised separately. But for me it seems really to be necessary to
13 go on as soon as possible with the status of the witnesses and the way how
14 to introduce their testimony.
15 Until now, we know, and the request is, that the following
16 witnesses are introduced via 92 bis: Witness 1, 5, 6, 7, 10, 12, 14, 19,
17 20, 22, 23, 25 -- sorry. Not 22. I'm referring to the Rule 65 ter
18 number. So to be quite clear, I restart with 19, 20, 23, 25, 27, 32, 34,
19 38, 44, 46, 49, 51, 52, 53, 54, 59, 83, 85, 86, and as it was requested,
20 the motion of 10 April 2002, we had the summaries of 85, 86. I mentioned
21 this already.
22 As regards Dr. Donia, we'll come back to this later on.
23 And I would ask the Office of the Prosecutor to provide the party,
24 the Defence and the Trial Chamber, with all possibly additional documents
25 they want to introduce as regards these 92 bis witnesses until next
Page 1893
1 Wednesday, so that it is -- there is a possibility for the Defence then to
2 know really what exhibits, transcripts, or whatever, shall be introduced
3 under Rule 92 bis. Will that be possible for you?
4 MR. KOUMJIAN: I think so, but just to clarify: Under the Rule 92
5 bis there are only two types of documents or testimony that can be
6 admitted. One, a 92 bis statement witnessed by an officer appointed by
7 the Trial Chamber, or 2, prior testimony. On the statements, I'm not
8 aware of any to date where we've attached documents to those, so they
9 would be coming in without additional exhibits. And on the testimony,
10 they often did refer to exhibits. We're under the impression that where
11 the -- that we have to at least provide those to the Defence, and I guess
12 we would then deal with Your Honours about whether those would become
13 exhibits in this case or not. But if an exhibit is referred to in the
14 prior testimony, it's potentially an exhibit in this case, but I don't
15 think necessarily either that we want it or that Your Honours would find
16 it relevant to this particular case if it was testified to in another.
17 JUDGE SCHOMBURG: Right. And also as regards these now two new --
18 possibly 92 bis witnesses, it is up to you to give us some additional
19 information whether or not under 92 bis you want also to introduce a
20 formal statement.
21 MR. KOUMJIAN: Yes. We would have to file a motion and ask for an
22 appointment of the Presiding Officer, because under the Rule, as I
23 understand it, we could not just introduce the -- we could not just
24 introduce the prior statement to one of our investigators. It would have
25 to be witnessed by a Presiding Officer. We'll make arrangements and we'll
Page 1894
1 attempt to make arrangements to do so and file a formal motion with the
2 Court.
3 JUDGE SCHOMBURG: Yes. This should be done until next Wednesday,
4 and only then the time limit of seven days will be applied, and therefore
5 it's open to you to come with your statements from the side of the
6 Defence, but please make clear reference what you regard as an obstacle
7 and where you don't see the prerequisites are fulfilled, and we need a
8 clear demonstration why you can't, from your point of view, accept the
9 application of 92 bis. 92 bis was introduced into the Rules of Procedure
10 and Evidence to have more expeditious trials, and therefore we have to
11 make use of it, first of all to avoid unnecessary repetitions. And
12 therefore, it's really necessary not only to say, "We object," but also to
13 give some reasons why you object, otherwise the Trial Chamber is not able
14 to decide in a fair way.
15 This was 92 bis.
16 And then, of course, the remaining question is, we still don't
17 have a list of the remaining witnesses, first of all, in the order of
18 their appearances. To speed up the trial, this was not finally decided
19 what should be done under Rule 33 bis (B) and (C), and therefore, I would
20 ask the Office of the Prosecutor to come with this list and the order of
21 witnesses to appear not later than next Wednesday. Is this possible for
22 the OTP?
23 MR. KOUMJIAN: Would Your Honour like the order for the entire
24 trial or the next ten witnesses, for example?
25 JUDGE SCHOMBURG: For the entire trial, to have an overview what
Page 1895
1 we can expect and that we can possibly decide and come back to this
2 whether or not it's really necessary to hear this witness later on or
3 possibly earlier. So therefore, it should be done as soon as possible for
4 the entire procedure, but please, not later than next Wednesday.
5 MR. KOUMJIAN: I can do that, but I do have to give warning to the
6 Court that what I've learned is that problems always arise, like the one
7 that arose with the witness who was supposed to be the second witness.
8 We've had to move him back a month. We'll give an anticipated order,
9 understanding that because people are generally living in other countries,
10 have many problems regarding their travel, and developments in the trial
11 may make one witness less necessary or another witness more necessary.
12 There is likely to be a request to change the order in the future, but we
13 can give you what we anticipate at this snapshot in time.
14 JUDGE SCHOMBURG: Right. Thank you.
15 MR. KOUMJIAN: Just for the Court's information, because it's
16 coming up very soon: The next two witnesses, we had to fill the gap of
17 the one witness who was unable to attend, and we've scheduled at the
18 moment the next witness, using the 65 ter number, would be Witness 29,
19 followed by Witness 14. Those were the travel arrangements we were able
20 to make in the last few days. We have previously given those names to the
21 Defence, or the fact that they would be testifying in that order.
22 JUDGE SCHOMBURG: Any problems from the side of the Defence? No.
23 Okay. Then I think we can proceed hearing our witness.
24 MR. KOUMJIAN: Back in closed session.
25 JUDGE SCHOMBURG: Back in closed session, yes.
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23 --- Whereupon the hearing adjourned at 12.58 p.m.,
24 to be reconvened on Monday, the 22nd day of
25 April, 2002, at 2.15 p.m.