Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8231

 1                           Friday, 26 March 2010

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.06 a.m.

 5             THE REGISTRAR:  Good morning, Your Honours.  Good morning,

 6     everyone in and around the courtroom.

 7             This is case number IT-08-91-T, the Prosecutor versus

 8     Mico Stanisic and Stojan Zupljanin.

 9             JUDGE HALL:  Good morning to everyone.

10             Before I ask for the appearances, I note for the record that we

11     are sitting under the provisions of Rule 92 bis -- Rule 15 bis, thank

12     you, Judge Harhoff having duties elsewhere today.

13             Yes, may we have the appearances, please.

14             MR. OLMSTED:  Good morning, Your Honours.  Matthew Olmsted,

15     Joanna Korner, and Crispian Smith for the Prosecution.

16             MR. ZECEVIC:  Good morning, Your Honours.  Slobodan Zecevic,

17     Slobodan Cvijetic, Eugene O'Sullivan, and Tatjana Savic appearing for the

18     Stanisic Defence this morning.  Thank you.

19             MR. PANTELIC:  Good morning, Your Honours.  For the

20     Zupljanin Defence this morning appearing -- yeah, it's on.  This morning

21     for Zupljanin Defence, Igor Pantelic, Dragan Krgovic, Ms. Erin Dummavant,

22     and Miroslav Cuskic.  Thank you.

23             Instead of Mr. Erin, it's Ms. Erin.

24             JUDGE HALL:  Judge Harhoff [sic] has gone to get his glasses.

25     Don't panic -- Judge Delvoie.

Page 8232

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Page 8233











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Page 8251

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17                           [Open session]

18             THE REGISTRAR:  We're in open session, Your Honours.

19             MR. ZECEVIC:  If I may just --

20             JUDGE HALL:  [Microphone not activated] Just wait for the --

21             I'm sorry to interrupt you, Mr. Zecevic, but there is something

22     that I wish to -- I forgot it yesterday, I intended to deal with it this

23     morning, and lest I forget it again, if I may.

24             Ms. Korner, yesterday, when we dealt with the witness, whose name

25     escapes me for the moment, who is coming back in May, you indicated that

Page 8252

 1     this DV unit is a part of the Office of the Prosecution.  But

 2     notwithstanding that, you would wish a formal order from the Court.  And

 3     I think that we neglected to do that yesterday.  So to the extent that

 4     such a -- the Court now orders -- and if you will assist me with the

 5     language, please.

 6             MS. KORNER:  The production of transcripts in B/C/S of

 7     Mr. Mandic's testimony in the Krajisnik trial.

 8             JUDGE HALL:  Yes, thank you.  So ordered.

 9             MS. KORNER:  Thank you.

10             JUDGE HALL:  Yes, Mr. Zecevic.

11             MR. ZECEVIC:  Thank you, Your Honour.

12             Your Honour, just a very small observation in relation to the

13     situation we just had.

14             I don't think really -- I understand your ruling, and I sort of

15     understand the motives of the victims for their wish to express whatever

16     the feelings that they have, and I don't have any problem with that.  The

17     problem I have is that once this door is opened, we have -- we

18     potentially are having a problem like we had just now.

19             The witness, for some reasons, names one of the Defence counsels,

20     or it will be in the Defence case, it might be the counsels from the

21     other side, and goes into sort of a dispute with the counsel, which is,

22     you would agree, I'm sure, quite inappropriate.  So what I wanted to

23     suggest, Your Honours, is that in future, if the Registry is informed by

24     the VWS that the witness wishes to address the Trial Chamber at the end

25     of his testimony or for whatever reasons, then that information should be

Page 8253

 1     given to all the parties, so we can be prepared in a sense that we can

 2     give our positions on any specific -- on any specific issues that might

 3     arise out of that situation, because it might be a situation where the

 4     witness asks for a certain help of the Trial Chamber, which would be

 5     completely understandable.  But in these situations, where the victims

 6     are asking to have the statements, then I don't think -- I don't think

 7     that's -- that the situation, as we have, was a proper one, where the

 8     witness was, in a sense, attacking one of the counsels, and the counsel

 9     is not in a position to say anything.  That is why I -- that is why

10     I think that this procedure sort of opens up another line which I don't

11     think helps the integrity of the proceedings.

12             That is just my observation, Your Honour.  I'm not trying to

13     criticise your decision.  I accept it.  I'm just trying to give my

14     observation.  Thank you very much.

15             JUDGE HALL:  I would like to thank you for your observation.

16             JUDGE DELVOIE:  But, on the other hand, Mr. Zecevic, I don't

17     think the witness had the intention whatsoever, when he noticed the

18     Registrar that he wanted to say something, he had no intention whatsoever

19     to go into a dispute with Mr. Pantelic.  That was really the last time --

20     a last-moment reaction of the witness of something Mr. Pantelic said in

21     court, and I can understand the witness's reaction, you know.

22             MR. ZECEVIC:  I understand, Your Honours, but we are officers of

23     the Court.  We are not -- we are not privately expressing our opinions to

24     the witness.  We are not talking to a witness.  We are doing our job,

25     defending our clients.

Page 8254

 1             Now, this situation could have been anticipated, because during

 2     his -- one of his answers, he was making comments to Mr. Cvijetic, when

 3     Mr. Cvijetic made a completely proper objection.  Therefore, I think --

 4     what I'm trying to say is that we, and our rights as counsels and

 5     officers of the Court, and the people who are trying to do their job at

 6     the best or of their abilities, should be protected as well, because -- I

 7     didn't felt -- I didn't -- professionally and personally, I didn't felt

 8     well when -- or wouldn't have felt well if I was attacked by the witness,

 9     and I would not be able to explain my position.

10             Thank you very much.

11             MS. KORNER:  Your Honour, I have two short and one maybe slightly

12     longer matter to ask Your Honours to deal with, which are procedural

13     matters.

14             Your Honour, the first relates back to -- as I came back into

15     court yesterday, I heard Mr. Pantelic expressing his views somewhat

16     forcefully on the application of Rule 90(H).  Your Honours, I just want

17     to make one further point on this.

18             Mr. Pantelic appeared to be suggesting that it would be proper

19     for him to rely on something that Judge Orie had said in the Krajisnik

20     trial about the last witness, without in any way putting to the witness

21     his challenge as to what the witness said in the statement, the 92 ter

22     transcript, which has been admitted as this witness's evidence.

23     Your Honours, can I make it absolutely clear, from the Prosecution point

24     of view, we've already said over and over again the Defence have an

25     obligation to put their case on major issues.  Your Honours have made

Page 8255

 1     your position clear, but we want to make it even clearer that we would

 2     object strongly to any attempt, in closing addresses or through other

 3     evidence later, to try and undermine that evidence without having put it

 4     to the witness directly that he is either mistaken or lying about that

 5     aspect of the case that was not challenged.

 6             Your Honours, I just want to make that absolutely clear.

 7             MR. PANTELIC:  And if I may, Your Honours, I would like to make

 8     absolutely clear that when time comes, we should be able to express our

 9     submission, our filings, at the closing of the case, and at that stage

10     this is Honourable Trial Chamber will be able to evaluate all evidences,

11     including the transcripts from Krajisnik trial and testimony of last

12     witness, as well as the line of cross-examination and the evidence which

13     is a part of 92 ter packages.  Thank you very much.

14             JUDGE HALL:  Thank you, and both --

15             MS. KORNER:  Your Honours, obviously we don't agree at all with

16     Mr. Pantelic on this.  So if it comes to it, there may yet have to be

17     another procedural argument, but I don't want to continue that today.

18             JUDGE HALL: [Microphone not activated]

19             MS. KORNER:  Yes.

20             Your Honours, the second matter is this:  Your Honours ruled on

21     the 24th of March - a decision, you issued a decision - on our

22     application to add three documents, which you've refused to do, and I'm

23     simply seeking clarification.

24             The reason for ruling against our application was - does

25     Your Honour have a copy? - was this:  That the Prosecution has not

Page 8256

 1     established to the satisfaction of the Trial Chamber that there is good

 2     cause for its request or that the proposed documents are of sufficient

 3     importance to justify their late inclusion.

 4             Your Honours, the clarification we simply seek is this:  Is it

 5     Your Honours' ruling that these documents are not sufficiently relevant

 6     to any issues in the case, and that is the reason for your ruling?

 7     Because I'm afraid we've all had a bit of difficulty in understanding all

 8     the proposed documents are of sufficient importance.  Does that mean they

 9     are relevant, but not sufficiently relevant?

10             JUDGE HALL:  You would appreciate, Ms. Korner, it is not an

11     answer that we can give at this moment, because we'd have to remind

12     ourselves.

13             MS. KORNER:  Yes.  Well, Your Honours, may I simply raise it and

14     ask that perhaps on Monday, when you've had a chance to look at it --

15     thank you very much.

16             Your Honours, the final matter is one that, as I say, may take a

17     little longer.

18             Your Honours know, because it's been raised from time to time,

19     that we have been affording the Defence the opportunity to see the

20     witnesses we call, generically, I can say insider witnesses, before --

21     immediately before they testify, either before they are seen by us, and

22     sometimes afterwards.  Your Honours, we have become increasingly

23     concerned in respect of the pressure that this is putting on witnesses

24     who are, in any event, reluctant to testify.  In some cases, we've had to

25     issue witness summons.

Page 8257

 1             I gather Mr. Zupljanin finds this amusing.

 2             And in other cases where -- I really would be very grateful if

 3     Your Honours could instruct Mr. Zupljanin not to speak while I'm

 4     speaking.

 5             In other cases, where even where they haven't had a witness

 6     summons issued, they are clearly not happy about being here.

 7             Your Honours will have seen that the witnesses, when they give

 8     their evidence, very often are not prepared to say what they have said in

 9     interview to the Office of the Prosecutor.  The reasons for that, we

10     don't know, and we're not exploring it at this moment.  But what we are

11     saying is that it has become evident to us that when they see Defence

12     counsel, it is an added pressure, particularly when it's a long interview

13     that has taken place immediately before they testify, and in at least one

14     case, as Your Honours know, the witness was too tired to carry on the

15     full length of a session.

16             Your Honours, there is, and I absolutely accept, no property at

17     all in the witness.  The Defence are entitled to interview the witnesses,

18     provided only that they notify us that they wish to do so and that the

19     witness, obviously, has agreed.

20             What has now happened is that, with some difficulty, we having

21     stopped the witness who's coming on Monday last week because we thought

22     Mr. Mandic was going to take up the full week, we rang him up, and he

23     very kindly agreed that he would fly in on Sunday to testify -- on

24     Saturday night, I'm sorry, to testify on Monday.  Up until now, he has

25     declined on, I think, at least two, maybe three occasions, to speak to

Page 8258

 1     Defence counsel.  But he, himself, volunteered that he did not wish --

 2     and his actual words to the investigator who spoke to him:  He did not

 3     want to be seen to be uncooperative, and therefore he was now prepared to

 4     see Defence counsel.  I do not know whether he's been contacted by

 5     counsel or investigators, or whether it's simply that he's been contacted

 6     by other witnesses who have undergone the same process.  Can I simply put

 7     it this way:  We find it slightly strange, after refusing adamantly to

 8     speak to Defence counsel, he now says he's willing.

 9             We have taken the decision that because he's only coming here on

10     Saturday, and because of what has been happening recently with witnesses,

11     we declined to allow the Defence to speak to him.  We've had a request

12     from Defence that they be allowed to speak to him for three hours; two,

13     as I understand it, by counsel for Stanisic and one for counsel for

14     Zupljanin.  We feel this is not appropriate.  We do not consider that

15     these interviews should be used as a dress rehearsal for

16     cross-examination.

17             In any event, if Your Honours decide that we should give this

18     access and should allow this to happen, it will mean that we cannot start

19     the testimony on Monday morning, because clearly he can't spend three

20     hours with the Defence on Sunday.  He's got to listen to his interview,

21     which is 128 pages, plus look at the documents.  So the net effect would

22     be that we would be saying he wouldn't be able to start his evidence

23     until Monday afternoon, and I believe we're in Monday morning court.

24             So that's the situation.  I'm sorry that we have to ask

25     Your Honours to deal with it, but our view at the moment is if the

Page 8259

 1     Defence want to see witnesses, this must be done in advance of them

 2     coming to The Hague.

 3             JUDGE HALL:  Ms. Korner, what I'm not clear about, and the -- in

 4     my previous work, and I see here as being no different, I draw a

 5     distinction between matters in court, in which the Judges are involved,

 6     and that whole exercise out of court, which involves attorneys and

 7     witnesses and, more importantly, more time than what the Court, itself,

 8     is concerned about.  And I'm not sure -- against that distinction, I'm

 9     not sure that what you are raising is a matter properly for the Court.

10     Isn't this an out-of-court matter to be sorted out, assuming the

11     goodwill, co-operation, and bona fides of counsel on both sides, to be

12     worked out between themselves?

13             MS. KORNER:  Your Honour, the reason that we're raising it is,

14     one, because we are now formally -- we've given notice that we're not

15     prepared to do this any longer, and I know Mr. Zecevic wants to deal with

16     it.  The second reason is because if Your Honours -- I won't say --

17     express the opinion that in this particular case, certainly the witness

18     who's coming now, this should be allowed, then the effect will be that

19     we'd have to ask Your Honours not to sit in the morning, and possibly not

20     Monday at all, but in the afternoon, because there's insufficient time

21     for him to see the Defence and us.

22             [Overlapping speakers]

23             MS. KORNER:  Sorry?

24             JUDGE HALL:  I think we are scheduled to sit in the afternoon.

25             MS. KORNER:  Are we?  Well, I suppose that one -- It may well be.

Page 8260

 1     I would be saying the whole of Monday to --

 2             JUDGE HALL:  And then you say "express an opinion," isn't the

 3     practical problem that when you seek to invoke the assistance of the

 4     Court, the Court must have a Rule against which it purports to act?

 5             MS. KORNER:  Sorry?

 6             JUDGE HALL:  The phrase you use was that you're inviting the

 7     Court to express an opinion.  But isn't the problem that then you seek to

 8     invoke the assistance of the Court, the Court can only -- qua Court, act

 9     on the basis of some rule.  And there is no Rule on which the Court, as I

10     see it, and I'm open to --

11             MS. KORNER:  I think Your Honours have -- I'm sorry to interrupt.

12     Your Honours have an overriding -- I think it's Rule 54 or something.

13     It's to regulate the conduct of the proceedings.  It gives you the power

14     to do just about anything.

15             JUDGE DELVOIE:  Ms. Korner, I have two questions.

16             One technical question:  This witness is supposed to take how

17     much time in court?

18             MS. KORNER:  He's four hours in examination-in-chief, four hours

19     cross-examination by Stanisic, and I believe one and a half by the

20     Zupljanin team.

21             JUDGE DELVOIE:  Okay.  And so that makes Tuesday, Wednesday --

22     yes.  Do you have anything else for that week?

23             MS. KORNER:  No, he's the only witness.

24             JUDGE DELVOIE:  Okay, thank you.

25             Then my second question is: in your last reply, you seem to say

Page 8261

 1     that what you're raising now is not only a question for this witness, but

 2     is a general attitude you want to take in the future.

 3             MS. KORNER:  It is.

 4             JUDGE DELVOIE:  Okay.  So it's more than only this witness?

 5             MS. KORNER:  Yes.

 6             JUDGE HALL:  Yes, Mr. Zecevic.

 7             MR. ZECEVIC: [Interpretation] Your Honour, I will try to be very

 8     brief, although there is much on my mind that I would wish to say.

 9             Before I proceed with the essence of what I want to say, I wish

10     to express my surprise and to protest, because the insinuation being put

11     forward by Ms. Korner before this Court about the alleged conduct of

12     Defence lawyers are completely unacceptable, and I see absolutely no

13     reason for this, and nor has she put forward any reason, because there is

14     no reason.  So I have to use an ugly word, that this is a cheap way of

15     putting forward serious insinuations.

16             Secondly, Ms. Korner has attempted more than once to achieve a

17     dual effect.  When a Prosecution witness does not respond in the way the

18     Prosecution would like, Ms. Korner rises and explains to the Court that

19     the witnesses find it difficult to speak openly and sincerely, as they

20     spoke to the OTP previously that they don't want to blame the accused

21     because it's hard for them to do so in the courtroom and so on.

22             Your Honours, in essence, the problem is as follows:  All of

23     these witnesses say exactly the same, from A to Z, exactly the same

24     things that they said when they made their statements to the OTP.  But

25     the problem is that during the proofing, the elementary, obvious

Page 8262

 1     questions were not put to the witnesses.  So when we ask them those

 2     questions, they answer sincerely and honestly, and then this does not fit

 3     into the Prosecution case.

 4             As for this particular situation, Your Honours, I will tell you

 5     the following:  Although Ms. Korner says, quite rightly, that there is no

 6     ownership over the witnesses, based on I don't know what rule, they take

 7     it upon themselves to prohibit the Defence from seeing the witness.

 8             The situation is as follows:  The OTP has its offices all over

 9     the territory of the former Yugoslavia.  If they want to do their job

10     properly, they should talk to their witnesses perhaps 15 or 20 days in

11     advance, proof the witnesses, and avoid the situation we had with the

12     previous witness, who arrived completely unprepared.  The OTP knew he had

13     not listened to his previous testimony in another case, and yet wanted to

14     introduce this witness through 92 ter.  This is an unforgivable omission.

15             Now the OTP is prohibiting the Defence from talking to witnesses.

16     These are not insider witnesses.  These are all the OTP witnesses whom we

17     asked to interview and who agreed to be interviewed by us.  If a witness

18     agrees to be interviewed by us, then this has nothing to do with the OTP.

19     The OTP cannot prohibit the witness from talking to us.  That is a

20     fundamental principle.

21             The situation now is that, in a way, the OTP and the Victims and

22     Witnesses Unit can deny us our right to contact witnesses, and that's

23     precisely what they want to do now.  This is really unacceptable, and

24     this is why we had to apply to the Trial Chamber for protection.

25             The basis is Article 20 of the Statute and Article 54 of the

Page 8263

 1     Statute.  I will also refer to decisions by Chambers.  In Haradinaj, the

 2     Trial Chamber, as regards this very issue, took the position that the

 3     Trial Chamber can regulate issues of witness proofing.  I have here a

 4     large number of precedents from other Courts because I believe it is the

 5     duty of the Court to ensure equality of arms.

 6             In this case, this kind of behaviour by the OTP is bringing the

 7     Defence into an unacceptable situation, and we insist on seeing every

 8     witness.

 9             Your Honours, I have said this more than once.  We have no one

10     else out there on the ground.  We only have the people you see here

11     working for us, so physically we do not have a person -- an investigator.

12     The Stanisic team has no investigator.  We don't have the funds to engage

13     one.

14             So there are two options.  Either the witness should arrive in

15     The Hague in good time.  Why is the witness arriving on Saturday?  Why

16     not on Friday?  Let the witness come on Saturday morning, and then we can

17     interview him on Saturday afternoon and on Sunday, and Monday morning he

18     can proofed by the OTP.  The second option would be for us to take a

19     flight this afternoon, interview the witness on Friday or Saturday

20     morning.  Then the witness would fly over here.  It's really difficult to

21     understand why somebody would want to cause these enormous and

22     unnecessary expenses.  We are not asking for anything unreasonable; two

23     hours only.

24             Secondly, Your Honours, the witness will not be under stress

25     because they're interviewed by us.  They are much more relaxed in the

Page 8264

 1     courtroom if they know what documents we are going to put to them, if

 2     they have seen the documents before, and if we ask them for their

 3     responses to these documents.

 4             So I really cannot accept any of the arguments put forward by

 5     Ms. Korner.  None of these arguments hold water.  That's why I insist

 6     that the Trial Chamber should hand down a decision.

 7             I will list the relevant Rules and decisions.  The Appeals

 8     Chamber in the Tadic case.  The Appeals Chamber, IT-94-1-A, of the 15th

 9     of July, 1999, where inter alia --

10             [In English] I will say in English:

11             The HRC Morael versus France, then Robinson versus Jamaica, Wolf

12     versus Panama cases.  Then the European Court on Human Rights, cases

13     Delcourt versus Belgium.

14             In our -- in the Tribunal jurisdiction, the Trial Chamber in

15     Haradinaj stated:

16             "Article 20 of the Statute --" that's paragraph 14 of the

17     decision:

18             "Article 20 of the Statute provides that it is duty of the

19     Trial Chamber to ensure that a trial is fair and expeditious.  The

20     Chamber recalls Rule 54 of the Rules, which provides: 'At the request of

21     either party or proprio motu, a Judge or a Trial Chamber may issue such

22     order, summons, subpoenas, warrants, and transfer orders as may be

23     necessary for the purposes of an investigation or for the preparation or

24     conduct of the trial.'  Considering that the witness proofing assists in

25     the preparation and conduct of the trial, the Chamber finds that the

Page 8265

 1     Rule 54, together with the Chamber's duty to ensure a fair and

 2     expeditious trial, give it the discretion to issue an order to the

 3     Prosecution on the conduct of the proofing session with witnesses."

 4             [Interpretation] I think that I have said everything I had to say

 5     about this, Your Honours, and I request that you hand down a decision.

 6     Thank you.

 7             MS. KORNER:  May I just briefly reply to this.  First --

 8             JUDGE HALL:  Let me hear from Mr. Pantelic.

 9             MS. KORNER:  Oh, I'm sorry.

10             MR. PANTELIC:  I believe, Your Honours, after the break would be

11     the appropriate time.

12             JUDGE HALL:  Yes.  It's 10.25, so we take the usual break and

13     return.

14                           --- Recess taken at 10.25 a.m.

15                           --- On resuming at 10.56 a.m.

16             JUDGE HALL:  Yes, Mr. Pantelic.

17             MR. PANTELIC:  Your Honour, on the basis of previous submissions

18     and on the same topic, first of all, I would like to say that there is

19     quite famous internationally-awarded movie from Serbian cinematography

20     called "Marathon Runners Run Victory Lap."  And there is a very legendary

21     sentence from that movie, saying "Lucky is a little bit nervous."  I

22     really suggest my learned friend Ms. Korner to see that movie.  There are

23     very important issues.

24             On behalf of my client, Mr. Zupljanin, during the submission of

25     my learned friend Ms. Korner this morning, I would like to give the

Page 8266

 1     information to the Trial Chamber that my client was absolutely and

 2     extremely in a very serious mental situation.  He was feeling very bad

 3     with regard to this issue with witnesses that we are facing here.  His

 4     impression is that his fundamental rights are infringed and violated by

 5     this submission and approach of the Prosecution with regard to the

 6     witnesses and all procedures around that issue.  So on behalf of my

 7     client, I would like to give information to the Trial Chamber that it was

 8     not his intention to -- on any way to interrupt proceedings, but his

 9     reaction was deeply emotional, and as a human being he was feeling, I

10     would say, very bad.  He was feeling very bad this morning when he was

11     following submissions from the Prosecution side with regard to that

12     issue.

13             Your Honours, when we communicated with the OTP with regard to

14     the proofing sessions with witnesses who are to come here, personally I

15     made a suggestion to Ms. Korner that, to some extent, a certain practice

16     should be followed.  I suggested that in any event of misunderstanding

17     between parties with regard to the willingness of the witness to speak

18     with the Defence, I simply said, Ms. Korner, no problem, let's call from

19     your office Witness X, Y, Z, in the presence of one of the members of

20     Defence and in the presence of OTP representatives, of course, and let's

21     ask them very clearly, Do you want or do you -- or you won't see

22     witnesses before coming here for testifying?  And if you want -- whether

23     you want to be in the presence of the member of OTP or in the presence of

24     your assistance, or et cetera, et cetera, it's very clear.  I never gave

25     the answer from the OTP with that regard to follow that practice.  And

Page 8267

 1     let me tell you why we came to this situation.

 2             We came to this situation because, Your Honours, what we see here

 3     as a defence in our relations with the OTP, we see that the OTP is always

 4     trying to, I would say, muddy the water.  They are manipulating.  They

 5     have certain actions around -- specifically with regard to the witnesses.

 6     They informed us -- for example, they informed us that witness doesn't

 7     want to contact us, and at next stage they inform us that witness would

 8     like to contact us in the presence of OTP, and then again something else.

 9     And that's why we want to have clear rules, and I agree with the position

10     of the Trial Chamber that we have to discuss between parties these

11     issues, but obviously it is not possible because of lack of co-operation

12     of the OTP.

13             So why we are here at this stage?  I would like to inform this

14     Honourable Trial Chamber that OTP has opportunity to speak years before

15     with all their witnesses.  For various reasons, Defence was not in that

16     situation.  And the only way where and when we could contact witnesses

17     here in The Hague, and I'm now stating that for the record, we don't have

18     any witness who came here who can say that he was under certain pressure

19     from the part of Defence or that he or she was unable to give a truthful

20     and full evidence before this Trial Chamber due to certain reactions of

21     the Defence in this proofing procedures.  On the contrary, Your Honours,

22     our witnesses are coming from a different legal system.  They have

23     impression that they are not allowed to speak with the other party who's

24     not calling them.  And then during all these contacts with them, we are

25     simply explaining that they are not officially -- I mean, they were

Page 8268

 1     called by OTP, but they are a witness of this Court, they are a witness

 2     of justice, they are a witness of the -- I would say, this attempt to

 3     find the truth.  And after that explanation, they are relaxed.

 4             In addition, Your Honour, to show what is the practice of OTP

 5     with regard to the witness, we -- as you well remember, we got here a

 6     witness, Scekic.  I don't know his first name.  He was testifying here

 7     weeks before.  Milan, Milan Scekic.  In the previous interview with OTP,

 8     they call him in capacity of suspect.  When -- and we have everything in

 9     the records, in the statements.  And when he asked OTP, Could you tell me

10     why I'm suspect, for which alleged charges?  And do I have to find a

11     lawyer?  They said, Yes, you must find lawyer, but we cannot tell you on

12     which basis you are calling, et cetera.  And on the next occasion, they

13     told him that he is not a suspect, but rather he is witness.  So this way

14     of, I would say, pressure on the witnesses, especially insider witnesses,

15     from the part of OTP is really dangerous, and they are not feeling

16     comfortable.  And we see, from previous statements, the way how the OTP

17     is acting with the witnesses.  The members of OTP team are police

18     officers, and they are really perform this police duty very hard and very

19     harshly.  They are pressing witnesses, you know, they are really

20     interrogate them, and the witnesses are very uncomfortable and fearful,

21     and their mental state is not proper.  And these kind of statements are

22     really far from being objective and truthful.  But this is a matter for

23     other revelation.

24             Your Honours, I would just like to make, in addition to my

25     submission, a few remarks of the relevant case law with that regard.

Page 8269

 1             First of all, we have -- we have here, in Tadic judgement - it's

 2     paragraph 52, and I will quote:

 3             "As to the scope of the application of the equality of arms, the

 4     Chamber found that the Prosecution and the Defence must be equal before

 5     the Trial Chamber and that the Trial Chamber should provide every

 6     practicable facility it is capable of granting under the Rules and

 7     Statute when faced with a request by a party for assistance in presenting

 8     its case."

 9             In addition to that, we are relying on a case Limaj, then

10     Milutinovic, then ICTR Appeals Chamber decision in Karamela [phoen], and

11     my learned friend also mentioned Haradinaj and Tadic.

12             So in conclusion, Your Honours, we, as Defence, have a very, very

13     serious situation now.  In addition to that, our clients are absolutely

14     shocked with this practice of the OTP.  And I would like to say that on

15     the basis of the fundamental principles enshrined in the Statute and the

16     other regulations of ICTY, as well as the International Law rules, we

17     think that the practice of this Prosecution team, with regard to the

18     treatment of the Defence and with regard to the aggressive approach

19     towards witnesses, is absolutely unacceptable, unfounded, and directly in

20     contradiction with the interests of justice and a fair trial.

21             Thank you so much, Your Honours.

22             MS. KORNER:  Your Honour, before I deal with some of the issues

23     raised, can I deal with one matter.

24             Mr. Zecevic asserted that we knew that Mr. Mandic had not

25     listened to his interview before we were going to call him under the

Page 8270

 1     provisions of 92 ter.  That is to suggest that we were trying to

 2     deliberately -- going to mislead the Court when we called him.  I'm

 3     taking it charitably that Mr. Zecevic said that in the heat of the

 4     moment, but it is a serious allegation, and I would like to have it

 5     withdrawn.  I explained yesterday, both in the proofing note and to

 6     Mr. Zecevic, that on no less than three occasions, Mr. Mandic told us he

 7     had listened to the interview.  So, therefore, before I continue, I would

 8     like that allegation withdrawn.

 9             MR. ZECEVIC:  Your Honours, in the meantime we received the

10     statement of Mr. Mandic, and I withdraw the allegation.  Thank you.

11             MS. KORNER:  Well, Your Honour, I would -- can I say I'm fairly

12     appalled that it takes the statement of Mr. Mandic, which I -- in fact, I

13     did not intend to go to Mr. Zecevic until I had dealt with this for him

14     to withdraw that, rather than taking the word of counsel, and I am

15     somewhat upset by that.

16             MR. ZECEVIC:  No, I take the word of counsel.  That is beyond

17     any -- Your Honours, the point of the matter is that the witness, in his

18     statement, acknowledged that he, himself, brought the Prosecution into

19     the opinion that he has listened to the tapes.  That is what I was

20     referring to.  And, of course, I believe the counsel's words.

21             MS. KORNER:  I'm sorry.  That's the whole point, is that I told

22     Mr. Zecevic and I told the Court that we had been told by Mr. Mandic that

23     he had listened to it.  And Mr. Zecevic this morning, before he received

24     the statement of Mr. Mandic, asserted that I was telling lies to the

25     Court.  And I'm sorry that Mr. Zecevic didn't feel in a position to

Page 8271

 1     withdraw that allegation, which up until now, I charitably assumed was

 2     said in the heat of the moment.

 3             MR. ZECEVIC:  I'm sorry, I withdraw the allegation, Your Honours.

 4     It's on the record.

 5             JUDGE HALL:  Thank you.

 6             Now could we return to the present matter?

 7             MS. KORNER:  Your Honour, in addition, Mr. Pantelic seems to be

 8     suggesting that we have behaved improperly when we have contacted the

 9     witnesses who the Defence have said that they wish to speak to.  One of

10     the problems with the suggestion that he makes, that there should be a

11     joint phone call, is that it puts the same pressure on witnesses, which

12     is our complaint.  At no stage have the witnesses ever been asked

13     anything by the investigator who contacted them a simple question, Are

14     you willing to speak with the Defence?  If yes, Do you wish to have

15     someone from the Prosecution there?  That's all.  In fact, in all cases

16     where the witnesses have agreed to speak to the Defence, only in one case

17     have they asked for the Prosecution to be there.  And, therefore, I

18     refute the suggestion of impropriety made by Mr. Pantelic.

19             Your Honour, however, can I deal with the gravamen of what has

20     been said.

21             It is not necessary for Your Honours to consider the human rights

22     cases or the previous cases in this Tribunal on this issue.  There is

23     absolutely no dispute and no intention on our part to say the Defence are

24     not entitled to interview witnesses.  Our complaint, and why it's being

25     raised now, is the timing.

Page 8272

 1             It is our experience, and we suggest it may well be the Court's

 2     experience, that the witnesses are experiencing pressure as a result of

 3     the system which has grown up and which, to my knowledge, there is not

 4     being -- it is not being followed in any other case which is going on in

 5     this Tribunal, that immediately before a Prosecution witness is seen by

 6     the OTP, they are seen, sometimes at length, by the Defence.  And that is

 7     the gravamen of our complaint.

 8             Mr. Zecevic says, We have no investigators.  Well, Your Honours,

 9     that's a matter for them to decide upon.  They have a budget for

10     investigators, like every other Defence counsel representing accused in

11     this Tribunal.  If they choose not to use the budget of the

12     investigators, well, then it's a matter for the lawyers to see these

13     witnesses.

14             Mr. Zupljanin, on the other hand, to our certain knowledge, has

15     at least two and, I think, possibly three investigators who are able to

16     interview these witnesses in advance.

17             Your Honours, all these witnesses, the ones who have been --

18     being interviewed by the Defence, have all been notified for some time.

19     There's been nothing to stop the Defence, as I say, provided they let us

20     know and provided the witnesses agreed, to them carrying out these

21     interviews.  And I say, again, our only complaint is that they're all

22     being carried out immediately before they testify.

23             Your Honours, the only witnesses to whom this does apply, I think

24     with one exception, are the insider witnesses.  There's no request to

25     interview, as I say, with one exception that I recall, any of the

Page 8273

 1     non-insider witnesses, and there must be a reason for this.

 2             So, Your Honour, all we're saying is this:  That we would like

 3     the witnesses, if they have agreed to be interviewed, to be interviewed

 4     in advance of when they come to testify.  And the Defence know the order

 5     is subject, obviously, to changes that sometimes happen, in which they're

 6     coming.  That's all.  We're not trying to stop the Defence at all.

 7             Your Honours, in respect of the coming witness, Your Honours

 8     having worked out the timing, if Your Honours say that we should give the

 9     Defence access because of the particular circumstances, that he

10     apparently changed his mind at the last moment, well, then, Your Honours,

11     we are -- we've tried to work out how long it will take so that he isn't

12     absolutely exhausted.  We'd have to ask Your Honours not to sit until

13     Tuesday.  That's the reality.

14             Your Honours, that's all I want to say on the matter.

15             JUDGE HALL:  Very well.  That was going to be our suggestion.

16             So you had something to add, Mr. Pantelic?

17             MR. PANTELIC:  Yes, Your Honour, very briefly.

18             Your Honours, for the record, Ms. Korner, as the chief of this

19     Prosecution team, is trying to manipulate and to exercise unacceptable

20     practice and standard, so-called property of witness, and the owner of

21     witness should be OTP.  Your Honours, I'm firmly -- I'm firmly based to

22     the following:  We want to speak with witness before he come to testify

23     here, and let the witness be allowed to say to us, I'm tired, I don't

24     want to see you, I don't want time.  It is not the role of the

25     Prosecution to put the words in the mouth of witness.  That's a

Page 8274

 1     manipulation, Your Honour.  That's why we want everything to be

 2     transparent and to hear from witness what they want to say to us, and if

 3     they have 15 minutes, half an hour, or hour, to see us.  If they are here

 4     in these proofing sessions to be 24 hours for the needs of Prosecution,

 5     it is absolutely the right of the Prosecution, in agreement with the

 6     witness.  But let's hear from the witness, what he or she would like to

 7     say.  That's the point, Your Honour.  We want to be heard by witness on

 8     that issue, and they are not responding to our constructive proposition

 9     to call them before from their office.  No answer from that side.

10             So, Your Honours, and in addition, with regard to the submission

11     of the possibility that members of the Defence team are able to contact

12     witnesses, no problem at all.  Yes, yes, we have that option, and we

13     are -- as practicable, we are doing that.  But here, two counsels are

14     here, and we want to have a final short meeting with the witnesses to go

15     through certain important documents; not all, but just what is important

16     for our case.

17             So you would agree with me there are differences between members

18     of Defence team and investigators and the counsels, so the role are

19     quite, quite different.

20             Thank you so much.

21                           [Trial Chamber confers]

22             JUDGE HALL:  Separating the issues relating to the witness who is

23     scheduled to come on Monday from the general concern which counsel have

24     expressed, and dealing with the matter of the particular witness, the

25     basal principle, of course, as counsel from both sides have said, is

Page 8275

 1     that -- principles, are that: A, there is no property in witnesses; and,

 2     B, it is up to the witness to determine whether he or she agrees to be

 3     seen by the other side before his testimony in court.  The mechanism, we

 4     think, is that it should be through VWS that such communication that a

 5     witness may have as to his willingness is made.  And in respect of this

 6     witness, the witness's answer to that question would, of course, be

 7     determinative of what happens here.

 8             In any event, having regard to the flexibility that we have for

 9     other reasons, in terms of next week, the timing of next week, we think

10     it appropriate that the witness is not called until the Tuesday sitting,

11     which I believe is scheduled for the morning.  So when we rise today, we

12     would adjourn until Tuesday morning.

13             As regards the broader principle as to how these matters are

14     addressed, the details into which counsel on both sides have gone

15     emphasizes the reservation that I expressed at the beginning, that the

16     Court is being called upon to make, as I understand it, a broad ruling

17     which is impractical because it cannot take into account all of the

18     variables that come into play in these matters.  Nevertheless, accepting

19     what counsel on both sides have indicated is the, I suppose for want of a

20     better expression, supervisory responsibility in this regard, which the

21     Court can exercise under Rule 54, and as Mr. Zecevic has indicated, it is

22     a problem which is likely to recur, it is our suggestion that a first

23     step in mapping out the way forward is that without requiring counsel on

24     either side to engage in the formalities of written motions, it would be

25     useful, in our view, and we invite counsel to do so, if counsel would

Page 8276

 1     meet and set down their concerns.  For instance, what appears to be

 2     common to both sides is this matter of the inconvenience and costs of

 3     either bringing a witness to The Hague too many days in advance of the

 4     scheduled date for his testimony or having to travel to the region to

 5     interview him, but these are facts with which the parties have to deal in

 6     the context of the existence of this Tribunal physically situated in

 7     The Hague, dealing with matters that have arisen elsewhere.  So that and

 8     the other concerns which counsel have articulated, it would, in our view,

 9     be useful if counsel could arrange to meet, settle the concerns, and that

10     exercise would, we expect, reveal the matters which are -- in which

11     there's agreement and with which the Court need not further concern

12     itself.  And if that having been done, it appears that the Court can

13     usefully, for future guidance, formulate a -- I'll borrow Ms. Korner's

14     words, "opinion," I believe she said, then we would consider doing so.

15     But we emphasise that the first step would be for counsel, in an

16     out-of-court exercise, to identify the areas of concern which this

17     problem seems to have thrown up.

18             Anything to add?

19             JUDGE DELVOIE:  If I may add, it will certainly be more

20     productive to put on this little fire water rather than fuel.  Thank you.

21             JUDGE HALL:  So we thank counsel, and with that we take the

22     adjournment to 9.00 on --

23                           [Trial Chamber and Registrar confer]

24             JUDGE HALL:  We take the adjournment until 9.00 on Monday --

25     Tuesday, thank you.

Page 8277

 1             Have a safe weekend.  Thank you.

 2                           --- Whereupon the hearing adjourned at 11.28 a.m.,

 3                           to be reconvened on Tuesday, the 30th day of March,

 4                           2010, at 9.00 a.m.