Tribunal Criminal Tribunal for the Former Yugoslavia

Page 124

1 Thursday, 27 March 2003

2 [Status Conference]

3 [Open session]

4 [The accused Jokic not present]

5 --- Upon commencing at 2.50 p.m.

6 JUDGE SCHOMBURG: Good afternoon to everybody. May I ask

7 Madam Registrar to please call the case.

8 THE REGISTRAR: Case number IT-02-60-PT, the Prosecutor versus

9 Vidoje Blagojevic, Dragan Obrenovic, Dragan Jokic, and Momir Nikolic.

10 JUDGE SCHOMBURG: Thank you. And the appearances, please. For

11 the Prosecution.

12 MR. McCLOSKEY: Mr. President, Peter McCloskey accompanied by

13 Anne Davis, Stefan Waespi and Janet Stewart, our case manager.

14 JUDGE SCHOMBURG: And the parties. For Mr. Obrenovic, please.

15 MR. KARNAVAS: Good afternoon, Your Honour. Michael Karnavas and

16 Suzana Tomanovic.

17 JUDGE SCHOMBURG: For Mr. Blagojevic, please.

18 MR. WILSON: Your Honour, I am Mr. Wilson. I am also for

19 Mr. Obrenovic, accompanied by Mr. Slijepcevic, and our interpreter

20 Mr. Karganovic.

21 JUDGE SCHOMBURG: I was aware of this confusion, no doubt.

22 Mr. -- For Mr. Jokic, please.

23 MR. STOJANOVIC: [Interpretation] Mr. President, Your Honour, my

24 name is Miodrag Stojanovic, I am representing the accused Mr. Jokic

25 together with co-counsel Ms. Cynthia Sinatra and Mr. Dragoslav Djukic, our

Page 125

1 interpreter.

2 JUDGE SCHOMBURG: And on behalf of Mr. Nikolic.

3 MR. LONDROVIC: [Interpretation] Your Honour, the accused

4 Mr. Nikolic is represented by myself, Veselin Londrovic, my colleague

5 Mr. Stefan Kirsch, and our interpreter Ms. Lovric.

6 JUDGE SCHOMBURG: Thank you. And then I -- may I take the

7 opportunity when addressing the accused in person, may I ask at the same

8 time whether you are following the proceedings in a language you

9 understand, and do you have any problems related to your health? Do you

10 have any problems related to the Detention Unit?

11 May we start in the same order. Please, Mr. Obrenovic.

12 THE ACCUSED OBRENOVIC: [Interpretation] Your Honour, I understand

13 what is being spoken in the courtroom. My health is fine, and I have no

14 problems whatsoever. Thank you.

15 JUDGE SCHOMBURG: I thank you. Mr. Blagojevic.

16 THE ACCUSED BLAGOJEVIC: [Interpretation] As for other matters, I

17 don't think there's any point in addressing them at this point.

18 THE INTERPRETER: I'm sorry, we didn't hear the beginning of the

19 intervention.

20 JUDGE SCHOMBURG: Could you please repeat? There was no

21 interpretation.

22 THE ACCUSED BLAGOJEVIC: [Interpretation] I said that I am able to

23 understand what is being said and interpreted into the Serbian language.

24 As for other issues, I don't think that there's any point in bringing them

25 up now.

Page 126

1 JUDGE SCHOMBURG: So my understanding is that you want to bring up

2 another issue later during this conference; correct?

3 THE ACCUSED BLAGOJEVIC: [Interpretation] There is no point in

4 discussing them because I raised certain issues, but they're still

5 pending. I think the situation is clear.

6 JUDGE SCHOMBURG: For my better understanding, you're making

7 reference to the hearing we had immediately following the last

8 Status Conference; correct?

9 THE ACCUSED BLAGOJEVIC: [Interpretation] In closed session.

10 JUDGE SCHOMBURG: So we continue this way, that we will have our

11 Status Conference as scheduled, and at the end, in closed session, a

12 special part relating to the concerns you want to express. No doubt you

13 have the right to express these concerns here during such a

14 Status Conference.

15 Then Mr. Nikolic.

16 THE ACCUSED NIKOLIC: [Interpretation] Your Honour, I understand

17 the language used in the courtroom. I do not have any problems concerning

18 my health. Likewise, I do not have any complaints as to the conditions of

19 detention.

20 JUDGE SCHOMBURG: Thank you. Only for the record, it should be

21 clarified that Mr. Dragan Jokic has waived his right to attend the

22 Status Conference, as he is currently provisionally released, and the

23 Trial Chamber, in its entirety, has accepted this waiver.

24 Let me give some preliminary remarks. Normally, this meeting

25 already scheduled for yesterday was intended to be the

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1 Pre-Trial Conference. Unfortunately, for a number of reasons it was not

2 possible to proceed as planned. It's not only the additional workload

3 emanating from some special events during the last weeks and months, but

4 it's also the fact that the Trial Chamber, and especially the

5 Pre-Trial Judge, was in a situation where under the rules of the ethics of

6 a Judge, a Judge can't act.

7 It is my understanding that pending a motion on disqualification,

8 a Judge can't act.

9 So therefore, and also based on another motion, this

10 Trial Chamber, in its entirety, was blocked for about one month.

11 Therefore, I decided on very short notice that instead of having

12 the Pre-Trial Conference today, this should be conducted immediately

13 before the start of the case, that is, the 5th of May, 2003. At the same

14 time, then we have the advantage that also Mr. Dragan Jokic can be present

15 during this Pre-Trial Conference.

16 The intention is to start with this Pre-Trial Conference

17 open-ended and then immediately to go over to the start of the hearing as

18 such. This, no doubt, is not the best solution, but in the moment, the

19 Trial Chamber is not able to decide on any motions under 92 bis or 94 bis

20 because only an informed Judge can decide on this. This is, at the

21 moment, not the case. Also, this has an advantage. I think it is helpful

22 that the decision on the admissibility of statements or transcripts under

23 92 bis or expert statements under 94 bis, this decision should be taken by

24 those Judges being the Judges hearing the case. Otherwise, we could have

25 the situation under our rules that the permanent Judges come to different

Page 128

1 conclusions opposed to those Judges hearing the case.

2 So my first question would be: Are there any principal objections

3 against the idea that in preparation of the case the Ad Litem Judges

4 assigned attend to this case participate in the Pre-Trial Conference to be

5 held the 5th of May following based on the fact that the Secretary-General

6 of the United Nations has assigned these pre-trial -- these Ad Litem

7 Judges already as of the 17th of April to this case?

8 May I hear the submissions. First Prosecution, and then the

9 parties.

10 MR. McCLOSKEY: No objection.

11 JUDGE SCHOMBURG: Now, let's really continue in alphabetical

12 order. Defence for Mr. Blagojevic, please.

13 MR. KARNAVAS: I don't have an objection to that, Your Honour. I

14 do, however, wish to raise an issue immediately after this, which I think

15 may need to be discussed before we go into any other matters.

16 JUDGE SCHOMBURG: Right. The Defence for Mr. Obrenovic, please.

17 MR. WILSON: No objections, Your Honour.

18 JUDGE SCHOMBURG: Defence for Mr. Jokic, please.

19 MR. STOJANOVIC: [Interpretation] We did not have any objection as

20 to the participation of Ad Litem Judges even before. Thank you.

21 JUDGE SCHOMBURG: And finally, the Defence for Mr. Nikolic.

22 MR. LONDROVIC: [Interpretation] Your Honour, the Defence of

23 Mr. Nikolic has no objection.

24 JUDGE SCHOMBURG: Thank you. I understand that Mr. Karnavas has

25 an issue to raise immediately after this. End of quote. Please do so.

Page 129

1 MR. KARNAVAS: Thank you, Your Honour. Sometime this afternoon, I

2 think approximately 2.00, 2.15, I received the Bureau's latest decision

3 with respect to my motion for clarification in which the Prosecution

4 joined me, in part, with respect to whether a decision from the Bureau can

5 be -- can be appealed. The decision itself reflects that the Bureau

6 itself cannot make that decision. I think the Prosecutor was correct in

7 pointing out that it is an administrative body as opposed to a judicial

8 body. And in paragraph 5 of the decision, the Bureau indicates that that

9 is a decision for the Trial Chamber to make.

10 Given the -- given Rule 73 and in light of the -- the new -- we

11 were urged to make oral motions, to make sure that I'm fully protecting

12 Mr. Blagojevic's rights and not waiving any, to make sure that I'm acting

13 due diligently, because the Appeals Chamber has indicated that when a

14 counsel fails to act, they waive the issue and they cannot look to the

15 Appeals Chamber to cure the mistakes or the faults of the attorneys, I

16 think it's appropriate for me at this time to ask the Trial Chamber orally

17 for certification to appeal the decision or to seek interlocutory appeal

18 on this issue. The Rules are not clear whether that is possible.

19 If it's the Trial Chamber's decision that the -- that it is not

20 possible, then at least I think the record will be clear that I've

21 exhausted all of my remedies. I've done everything I can possibly do at

22 this point.

23 If, on the other hand, the Trial Chamber believes that I am

24 entitled to file an interlocutory appeal, I would ask for certification.

25 I believe the Rules provide for an oral decision on that. And of course

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1 if that were to be granted, then I would file it immediately, perhaps as

2 early as Monday or maybe even as -- I think Monday would probably be the

3 earliest I could get it in.

4 Given the -- given the Prosecution's remarks in its response, in

5 its response to my motion for clarification, it is also clear to me,

6 unless I'm reading it wrong, that the Prosecution is also of the opinion

7 that this is a matter that perhaps should be dealt with prior to trial on

8 a basis of an interlocutory appeal by the Appeals Chamber so at least

9 there's closure on this issue.

10 So in any event, that is my application at this point,

11 Your Honour.

12 JUDGE SCHOMBURG: Please understand that I will not accept an oral

13 motion on this because in my understanding of the ethics of a Judge, a

14 Judge should never touch a motion on disqualification, and the same is of

15 course true as regards the certification. May I, therefore, please ask

16 you to do this in writing, the request for certification, and, no doubt, I

17 have to discuss it with my colleagues, but then it will be forwarded to

18 the President with the request to assign this to another Trial Chamber.

19 MR. KARNAVAS: Thank you, Your Honour.

20 JUDGE SCHOMBURG: Let us now come to the questions of disclosure

21 and outstanding motions. We have a number of outstanding motions,

22 especially on 92 bis and 94 bis. I would like to hear some comments from

23 the side of the Prosecution related to the Butler report, be it now under

24 Rule 94 bis or Rule 92 bis (B), and whether the Prosecution seeks under

25 Rule 92 bis the admission of at least some parts of the transcripts in the

Page 132

1 Krstic case in this case as well in order to avoid overlapping and wasting

2 time with those areas already covered in the Krstic case and then limiting

3 the Trial Chamber to those aspects which are new and of course based on

4 the cross-examination by the Defence.

5 May I hear, please, your observation on this.

6 MR. McCLOSKEY: Yes, Mr. President. Since this idea was broached

7 yesterday we have considered that, and what we have decided would be that

8 it would be best, I believe, for the overall efficiency of this case to

9 rely on the current reports of Mr. Butler, his narrative and his command

10 report as opposed to his testimony in Krstic. I say that because if we

11 apply the 92 bis Rule for his testimony in Krstic, we would have to

12 withdraw any of the particular testimony that went to the acts or conduct

13 of the accused. And this would be my guess would be a very hotly

14 contested issue, and it would be -- there would be a legal battle

15 throughout the days and days that it took Mr. Butler to testify, and it

16 may cover a large majority of his report since he spoke of many of these

17 defendants in particular, and -- and some of his statements would have

18 affected them peripherally fairly strongly.

19 And I say that because fundamentally, his testimony was outlined

20 and specifically referenced quite thoroughly in his reports which I hope

21 to be part of the record as we offer them into evidence, and I would not

22 intend to have Mr. Butler testify all over again to many of the material

23 that is in those reports, and I would expect that the material that I

24 didn't get to that counsel would object to, they would cross-examine

25 Mr. Butler on and that in the end this would be the most efficient way of

Page 133

1 dealing with these issues.

2 I think Mr. Butler's two reports, will get done what we need to

3 get done and establish for the record what is best and avoid the

4 potentially contentious 92 bis debate.

5 Now, on the other hand, if counsel wishes not to object to the

6 entry of Mr. Butler's testimony, I have no problem offering it fully, but

7 I am, perhaps, not that optimistic.

8 JUDGE SCHOMBURG: Thank you. Does any Defence team want to

9 respond on this?

10 MR. KARNAVAS: Gladly, Your Honour. I think Mr. McCloskey is

11 correct that Mr. Butler is going to be a very key witness. His testimony

12 is going to be hotly contested.

13 As far as his prior testimony is concerned, I think in any event,

14 we're going to be making references to it in all likelihood either to

15 refresh his memory or to impeach him. I'm sure that the Prosecution will

16 be doing the same whenever we are attempting to impeach him, and they will

17 probably be trying to bring in portions it have to establish prior

18 consistent testimony or statements.

19 I understand that in another case, in the Brdjanin case, there is

20 a procedure in place that sort of assists the Trial Chamber in limiting or

21 expediting the process where the -- apparently the Prosecution redacts the

22 testimony. They then do have a limited direct, and of course the

23 cross-examination is more or less on the entire event unlimited. It does

24 save some time.

25 I am -- assuming we could adopt something like that, I'm

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1 not -- I'm not opposed to it. But with Mr. Butler, he has two reports. I

2 think the Court is going to want to hear Mr. Butler, and I think he's

3 going to need to establish a foundation for his reports. The reports in

4 and of themselves, in our opinion, are not thorough, are not complete, are

5 not accurate, and I think his live testimony is going to be critical. So

6 I'll leave it at that.

7 JUDGE SCHOMBURG: I think, then, the answer to this question is

8 already quite clear, and we have to proceed this way.

9 May I then ask the next question I already touched upon. We are

10 aware that there are eight expert reports that were filed pursuant to Rule

11 both 94 bis and Rule 92 bis (B). Why this to a certain extent double

12 filing and double request?

13 MR. McCLOSKEY: Mr. President, first of all, all our expert

14 reports were filed under 94 to see if Defence would object or not object,

15 and if they don't, then the reports come in. And those experts that we

16 felt did not necessarily go to the acts or conducts of the accused we

17 filed under 92 bis as another means of allowing them into evidence based

18 on, of course, the Trial Chamber's view on the 92 bis ruling. So I think

19 it's as simple as that.

20 JUDGE SCHOMBURG: I think it's premature to discuss these

21 submissions in detail. The time limit is, yes, the 31st of March in

22 principle, so let's wait and see what are the comments by the parties.

23 We were looking for an outstanding transcript for Jasna Zecevic.

24 MR. McCLOSKEY: Mr. President, we were not aware that we were

25 missing a transcript. This is one of the victim impact witnesses that we

Page 135

1 were in the process of trying to decide, as we will continue throughout

2 this process, if a witness may be more appropriate as 92 bis. But I did

3 not know we were missing a transcript for that witness. And we

4 are -- with the help of Defence counsel, have identified some logjams in

5 our B/C/S translations and hope and I trust that the resources we are now

6 applying to those lists, we'll clear that logjam within the next seven to

7 14 days.

8 JUDGE SCHOMBURG: The same seems to be true, that two outstanding

9 statements be translated. This is P185 and P186; correct?

10 MR. McCLOSKEY: Yes, Mr. President. We have had a chance to more

11 fully evaluate both those witnesses. In fact, actually speak -- we spoke

12 to one of them and have decided that we will withdraw them from

13 our -- from our list. We at first thought they were going to be critical

14 because of their -- who they were and their position, but after talking to

15 them, it did not appear to be crucial witnesses and so we have withdrawn

16 them.

17 JUDGE SCHOMBURG: Thank you for this clarification. May I then

18 ask that the outstanding transcript will be in the possession of all the

19 Defence teams no later than next Wednesday. And is it acceptable for all

20 the Defence teams that the Trial Chamber expects the response no later

21 than two weeks after being in the possession of this transcript? Is it

22 okay for you? I can't see no objections. Then I take it as accepted.

23 I was taken by surprise to hear that the Prosecution intends to

24 file two more expert reports, a report from a Mr. Jurien Bijhold. Could

25 you please explain on what this expert should give his expertise.

Page 136

1 MR. McCLOSKEY: Your Honour, this is a Dutch photo identification

2 expert. We have had discussions between Mr. Nikolic's counsel and the

3 Prosecutor regarding particular photos from videos and the people that may

4 or may not have been identified in those photos, and we were unable to

5 resolve -- resolve those identifications. So we have -- several weeks ago

6 we have sent the photo and the video to the local Dutch forensic expert to

7 compare the faces, and we expect -- we've been expecting a report back on

8 that, and we hope to get it next week.

9 JUDGE SCHOMBURG: I take it that this expert will not be called in

10 the beginning of the case, that we can live with our deadlines as foreseen

11 under the Rules.

12 MR. McCLOSKEY: Mr. President, we have had a verbal response to

13 his -- to his conclusions, and they're very neutral conclusions, so I

14 wouldn't expect this witness to be needed to be called at all, but we'll,

15 of course, provide his report to the Defence and we'll see. But my guess

16 is it's not really going to be something helpful for the Court.

17 JUDGE SCHOMBURG: Thank you. A point of major concern, no doubt,

18 is the expectation that we would receive another report from a military

19 expert, a Mr. Patrick Cordingley, and rumours tell me that this report

20 should be fairly extensive.

21 Having sometimes the possibility to watch television, I am aware

22 that this expert is covering, at the moment, the Iraq war. What is your

23 expectation about the time we can realistically expect this report?

24 MR. McCLOSKEY: Yes, Mr. President. The events in the Gulf have

25 messed up our time frame with Mr. Cordingley, General Cordingley, and we

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1 have been in contact with him this week and are trying to work out a time

2 by which we can immediate with him and get this report going. Though I

3 don't expect it to be the kind of report we're looking at from Mr. Butler.

4 Mr. Cordingley, was a brigade commander in the Gulf and involved in combat

5 that took many prisoners, and he will be giving his basic views of command

6 and control and issues like that, but we don't expect him to be getting

7 into all the minutia that Mr. Butler had gone into. But yes, it is an

8 important report, and we are working diligently to get him and get him

9 focused on the materials from Mr. Butler and the other materials so that

10 he can write his report.

11 JUDGE SCHOMBURG: Once again bearing in mind the time frames

12 foreseen in the Rules, I take it that this, from your point of view,

13 crucial military expert, will be heard rather to the end than at the

14 beginning of the case; correct?

15 MR. McCLOSKEY: We would expect, as you say, at the end of the

16 case to help wrap up the command issues which would probably be several

17 months down the road. And of course, trying to estimate when that will be

18 is difficult.

19 JUDGE SCHOMBURG: Thank you. Yes. I think -- Mr. Wilson, please.

20 MR. WILSON: Your Honour, I'd like to be heard on that, if I may.

21 JUDGE SCHOMBURG: Yes, please.

22 MR. WILSON: There is a problem here for the Defence. Even if

23 this gentleman testifies some months down the road, one, we need to know

24 what he's going to say because we may also need to find an expert and that

25 expert cannot look at the case until he knows what the Prosecution's

Page 139

1 expert going to say. So it puts us in a situation of finding people of

2 these qualifications and background is not easy, and so I'm becoming

3 concerned that we're getting so far down the road that if we get this

4 report some months from now and the gentleman's testifying two or three

5 months after that, it really doesn't give us enough time to prepare our

6 case. So I would raise that as a concern on behalf of Mr. Obrenovic.

7 JUDGE SCHOMBURG: I think all Defence teams share the same concern

8 and so does the Trial Chamber. So I think we all should know no later

9 than, say, immediately before Easter, that is the 17th of April, when we

10 can expect. And to assist the Defence teams, a short outline of what this

11 expertise will cover, that we have at least the gist of what will be the

12 area that will be covered by this expert and that this report, in any

13 event, should not arrive later than one month after the start of the

14 hearing as such.

15 I think a final ruling today would be premature. In any event, a

16 final ruling has to take place during the Pre-Trial Conference, that we

17 can come to an agreement. I'm fully aware you have the right to respond

18 and you need additional time to find other experts if you so want in

19 response to this expert, but we come later to the question what is the

20 realistic estimate about the time we need for hearing this entire case.

21 And then based on this, we can come closer to that, what is really

22 necessary for the parties.

23 I fully accept your point. Can we expect that a first outline of

24 that, what we will hear from this expert and what he wants to cover, be

25 submitted to the parties by the 17th of April? Is that possible?

Page 140

1 MR. McCLOSKEY: Yes, Your Honour, absolutely. And I certainly

2 would like to get a report within the date you mentioned also. Unless

3 there are some serious difficulties - if he gets drafted we might be in

4 trouble - but I hope he can get the report written and carry on his duties

5 at the same time.

6 JUDGE SCHOMBURG: Thank you. At the moment, I only can state the

7 sooner, the better, and the final ruling will follow then at the beginning

8 of May.

9 We have the Prosecution's motion for order requiring all parties

10 to comply with practice direction on the length of briefs and motion. To

11 be absolutely honest with you, personally I don't like these practice

12 direction because sometimes it may turn out that it's counter-productive

13 when we order a party to limit an important, emphasis on "important,"

14 motion or response to a certain page number and by doing so leaving out

15 the necessary quotes, footnotes, and additional material that can be of

16 assistance for the Trial Chamber.

17 But nevertheless, the we all have to obey the Rules, and this

18 includes this practice direction. Therefore, indeed I have to ask all the

19 parties to comply with this practice direction. I hope that the

20 Prosecution can live with this general rule, that the practice direction

21 has to be followed, but in order to avoid unnecessary filings, if there is

22 only, in addition, in case, for example, the practice direction provides

23 for a filing of, say, 20 pages, we have in addition less than more than

24 one full page. No request for leave should be necessary.

25 Can you accept this?

Page 141

1 MR. McCLOSKEY: Yes, Mr. President. On occasion we get wordy

2 ourselves, and that's -- we would just -- it's asking the leave of the

3 Court that we would -- one of the things we were stressing. And as

4 opposed to putting things single-spaced to try to come within the time

5 frame or various others tricks we lawyers do or things we find ourselves

6 doing. And I put myself in that group also. We are all in the same boat,

7 but, yes, I -- as long as these matters are discussed beforehand, I have

8 no problem.

9 JUDGE SCHOMBURG: And in addition, I would like to emphasise that,

10 no doubt, in case of serious issues than on a case-by-case basis and based

11 on oral requests granting leave for longer motions or responses, we can

12 all live with this practice direction. And in addition, I would really

13 ask, as I put it sometimes, in order to protect our forests not to attach

14 previous filings. I know the underlying reasons, in order to facilitate

15 the reading of a motion that previous motions are attached, but please be

16 aware; we all have our filing system. The Registry has a filing system,

17 and we have immediate access to these previous filings and, therefore,

18 please do not repeat previous filings in the form of an attachment.

19 But may I ask all the Defence teams, could you live with this

20 general practice, that we follow the practice direction without request

21 for leave in case it succeeds no more than to the maximum of one page,

22 because some flexibility should be there?

23 Mr. Karnavas.

24 MR. KARNAVAS: I can live with that, Your Honour. I must say I

25 don't like the directives at all, and I -- I probably am a recidivist,

Page 142

1 violating them unintentionally. I was not aware that single space was not

2 allowed. It wasn't that I was trying to cheat, although I do have a lot

3 to say, so I do go overboard beyond the page limitation. I would ask that

4 we do away with asking for leave to file a reply. I think I should have

5 the right to automatically reply to a motion that I filed. It keeps the

6 Prosecution honest or the other party honest, because if the other party

7 raises an issue that haven't been raised in the motion, then I have to

8 file leave. Then I have to -- then if leave is granted, then I have to

9 file the reply. It's very time-consuming. And normally what I have to

10 say in the leave is what I say in the reply anyway. So I think if we can

11 have a loose rule of an automatic reply up to five pages and even shorten

12 the time, say, within three days. I could live with that.

13 So I think since we're going to relax the rules a little bit,

14 these are only regulations, directives, we're not exactly ingrained into

15 the Rules of Procedure, we should adopt that as well, Your Honour.

16 JUDGE SCHOMBURG: Would it complicate the entire process if we

17 would proceed this way that the first paragraph response being no longer

18 than five pages, your request for leave to file the following motion, that

19 it can be done in one motion?

20 MR. KARNAVAS: I'm not sure if I did. So you're saying limit the

21 Prosecution or the Defence to a response of five pages?

22 JUDGE SCHOMBURG: This was your proposal.

23 MR. KARNAVAS: The reply, Your Honour. If I can have five pages

24 of reply --

25 JUDGE SCHOMBURG: I'm just discussing reply. Normally you would

Page 143

1 have, as you correctly pointed out, to file a motion granting leave for

2 reply, and then later on the reply. But wouldn't it be of assistance for

3 all the parties to file in one and the same motion in paragraph 1, the

4 request for leave to file the following reply?

5 MR. KARNAVAS: We could do that as well, Your Honour. Not a

6 problem.

7 JUDGE SCHOMBURG: And then for a maximum of five pages and then it

8 would be for the Trial Chamber to decide whether or not to grant leave at

9 the same time, and then we would know what we are deciding about.

10 MR. KARNAVAS: That would be great, Your Honour.

11 JUDGE SCHOMBURG: Problems from the side of the Prosecution?

12 MR. McCLOSKEY: No, Mr. President.

13 JUDGE SCHOMBURG: Then let's proceed this way.

14 Then we have a real problem. The number of witnesses. When

15 reading that we have to expect 146 witnesses above them in the moment 90

16 live witnesses, it's always a shock. Hopefully, but it's of course for

17 the parties to give their assessment on the motions on 92 bis and 94 bis,

18 we can, in fact, reduce the number, and the Trial Chamber will try their

19 very best to review the statements we have got until now in order to find

20 out whether or not it's possible to have even fewer witnesses as live

21 witnesses.

22 But may I ask as to the fact that the Prosecution at the moment is

23 in the preparation of filing updated witness list by the 31st of March,

24 2003, do you intend to add any more witnesses to this witness list? We

25 heard already that you withdrew two. What about the other side of the

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1 coin?

2 MR. McCLOSKEY: Mr. President, we have another we're withdrawing

3 and adding three, so we're --


5 MR. McCLOSKEY: -- Neutral. And these three are witnesses that

6 just came out of the woodwork, so to speak, most of them, I believe.

7 JUDGE SCHOMBURG: So this new list will clearly identify the 65

8 ter number of each witness, no doubt.

9 The Office of the Prosecution has indicated that the motion on

10 protective measures will be incomplete, but I think also this would be

11 premature because experience shows that sometimes only on a last-minute

12 basis witnesses are requesting protective measures. Do you intend to

13 file, at this point in time, a special motion on protective measures

14 already, reserving the right to add later on other requests? And course

15 the same will be true for Defence witnesses. But it always is a

16 possibility when the witness arrives and then asks for protective measures

17 that we immediately decide on a last-minute basis. I think this

18 can't -- this is really not foreseeable for both parties in the moment.

19 MR. McCLOSKEY: Yes, Mr. President. That has been my experience,

20 that both parties find this subject to change depending on a lot of

21 things. And we have been able to provide the Defence today with

22 the -- our first 18 witnesses and the order. This is tentative, but it's

23 the witnesses that we're planning on calling and the order, and we're of

24 course -- have people in Bosnia speaking to those people, double-checking

25 to see that they will come here and double-checking to see what kind of

Page 146

1 protective measures they may want, but it's been my experience that until

2 I have a chance to see the witness before they testify that that could go

3 either way.

4 I, frankly, and it's been my practice in this particular case -- I

5 think different cases have different security problems, but I encourage

6 all witnesses to testify openly, and those that need the protective

7 measures of pseudonym and face distortion, I -- we don't try to talk them

8 out of that. But that is something that largely gets decided many times,

9 I think, in the hotel room as they talk to other people. But as for

10 testifying in closed session, that is something I actively try to dissuade

11 people from doing. I think that makes what we're doing here difficult,

12 both on a practical level and on a larger level. But at this point in

13 time trying to file a substantive motion on this issue is very difficult,

14 and like you say, it's subject to change. But if it really comes down to

15 whether it's pseudonym and face distortion versus open testimony, it

16 shouldn't present great problems either way.

17 JUDGE SCHOMBURG: I can't see any objections. I think we should

18 live with this in principle.

19 The next issue seems to be a more sensitive one. That's a

20 question of the OTP's filing, proofing chart. Practice shows that such a

21 proofing chart assisted both the Trial Chamber and the Defence with an

22 overview and probative value of a witness, and for the Defence it's a

23 question of foreseeability. For the Trial Chamber, it's an adequate tool

24 to determine if certain witnesses may provide repetitive testimony.

25 Therefore, based on this, we can ask and even rule that maybe and

Page 147

1 hopefully a number of witnesses may not be called or it's not necessary to

2 call these witnesses.

3 I know that some Defence counsel are hesitant about this because

4 they are afraid that this could assist only the Trial Chamber, but I do

5 believe, in fact, also based on the experience that it's assisting at the

6 same time, as mentioned before, the Defence. And then this will be

7 true -- the following remarks will be true for the now following points.

8 No doubt, and I think nobody has expressed it in a better and

9 well-put way than Mr. Wilson when touching upon this issue of the question

10 of common law versus civil law when it comes to the admission of evidence.

11 I think that we all are aware that our Rules - and we have to obey the

12 Rules - are predominantly those ones emanating from the common law area,

13 but nevertheless, this is an International Tribunal, and we all are at the

14 same time aware that there are a number of elements emanating from the

15 civil law system. And we should be aware here are acting professional

16 Judges and not a jury.

17 Therefore, from my point of view, there seems to be no obstacle at

18 all to have such a proofing chart, and I invite the teams, the Defence

19 teams for comments on this. From my point of view, it would be of

20 assistance for everybody to have such proofing charts. But before I want

21 to ask or request the OTP to provide these charts, please your comments on

22 this.

23 MR. KARNAVAS: I just have a brief comment, Your Honour. I did

24 express my reservations with regard to this. I think if it's limited and

25 restricted to presenting some facts, I might not have a problem. If it's

Page 148

1 argumentative in a sense, that it tends to -- the narration tends to go to

2 persuading the Judge, then I would obviously have a problem with that

3 because in essence it would -- it might, even in spite of the best wishes

4 of the professional Judges, it might tend to at least give them the

5 impression that this is an open and shut case, and it could somehow play a

6 role in the decision-making.

7 So as long as it's based on facts and in a very objective manner

8 and it's not -- we don't have argumentative phrases in there, I don't have

9 a problem. So if they could take out all the adjectives and adverbs, then

10 I guess -- and keep it factual, it will be okay.

11 JUDGE SCHOMBURG: You may know that in a civil law system we have

12 an entire file with all adjectives and all adverbs and all the discussion

13 in the trial to -- the attempt to persuade the Judges already before the

14 beginning of the case. Nevertheless, we are acquainted with this, and we

15 know only this, and that what we hear in court is evidence, and the

16 judgement can only be based on this. And we also have learned to forget

17 in case, for example, evidence tendered is, for example, under Rule 95 not

18 admissible. Then we have to forget this. Admittedly for a human being

19 it's sometimes difficult, but as professional Judges, we have this

20 obligation and we know how to do this.

21 Therefore, may I invite the Prosecution to provide the parties and

22 the Trial Chamber with such a proofing chart. Will this be possible?

23 MR. McCLOSKEY: Of course, Mr. President. I do need to get a

24 better idea what Mr. Von Hebel meant by "proofing chart," but so far as it

25 seems like a consolidated version of our trial brief and what

Page 149

1 witness -- the guts of what each witness has to say and where it goes in

2 the indictment, that's not a problem, and I won't be using words like

3 disputatious and other words I enjoy reading in Mr. Karnavas's briefs.

4 JUDGE SCHOMBURG: Absolutely. That's what would be of real

5 assistance and that we know that a witness will testify to certain charges

6 and without any additional comments, only an a list what can be expected

7 and what will be expected from this witness to have an entire overview,

8 especially when it comes to the question, do we have cumulative evidence

9 or not.

10 I want to discuss in addition to this the question --

11 MR. LONDROVIC: [Interpretation] Your Honour.

12 JUDGE SCHOMBURG: Please. Please. Sorry.

13 MR. LONDROVIC: [Interpretation] I apologise for interrupting you.

14 Speaking of summaries during the 65 ter meeting, I expressed certain

15 reservation to the effect that the Prosecutor has a number of witnesses

16 who have given four to five statements. The first one, for instance, was

17 given to the security service of the BH army, the second one to the

18 civilian security service, the third one to the AID, the fourth and the

19 fifth one, for instance, to the Office of the Prosecutor.

20 Very often, and I have read a number of such statements, these

21 statements are not consistent, that there are certain discrepancies. For

22 instance, in the first statement, the one which was given after the

23 events, the name of my client is not mentioned, and then it suddenly

24 appears in the last statement.

25 I don't see how the Prosecutor can make a summary of those

Page 150

1 statements and retain the necessary degree of objectivity. I have nothing

2 against the Prosecutor emphasising certain things in respect of particular

3 statements and drawing our attention to the fact that something was not

4 mentioned in the first statement but was mentioned only in the third or

5 the fourth statement.

6 I would like the Prosecutor to point out to the discrepancies

7 contained in these witness statements. And I am talking about the factual

8 discrepancies. If such summaries can be made, then I will have no

9 objection whatsoever.

10 My previous experience boils down to the following: Out of four

11 statements, the Prosecutor often made a consistent summary. And once we

12 read this summary, it seems to the witness is very consistent and that

13 such would be his testimony. However, if we take into account all

14 previous statements, this turns out not to be the case.

15 We have to be given this opportunity. We have to be -- our

16 attention has to be drawn to all these discrepancies, and the witnesses

17 should be made aware of that. I am aware of the fact that this is -- this

18 can be difficult. However, the experience has taught us that such things

19 have happened. Thank you.

20 JUDGE SCHOMBURG: I can't more than absolutely agree with your

21 comments, and it's also of utmost importance for the Trial Chamber to

22 have, no doubt, all the statements and all the previous transcripts, at

23 least the hint that the witness has given previously testimony in another

24 case of this Tribunal. But all the statements not included in transcripts

25 should be provided to the parties and to the Trial Chamber, because no

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Page 152

1 doubt it's not for the Prosecution, and it should be, first of all, the

2 obligation of the Defence and then later of the Judges to find out these

3 discrepancies, the consistency, and the development of statements. No

4 doubt there will be such a development of a statement.

5 I would be absolutely hesitant and would ask why this is this, if

6 there is a consistent testimony on all single details. Then alarm bells

7 would be ringing.

8 So therefore, I think we are all in agreement that we need all the

9 statements available for the Prosecution, and the same is true later

10 during -- if any -- during Defence case, that the also Defence provides us

11 with all statements and give us at least hints on previous testimonies

12 where transcripts are available.

13 This brings me to already the next point. I don't know --

14 MR. STOJANOVIC: [Interpretation] My apologies, Your Honour. With

15 your permission. While preparing for the Status Conference two days ago

16 we made certain representations concerning this particular issue, and the

17 Defence of Dragan Jokic accepted this proposal, that the Prosecutor should

18 submit this proofing chart, an overview of witnesses and expert witnesses

19 that they intend to call or whose statements would be tendered.

20 Bearing in mind that the Court will base its judgement on the

21 evidence offered in this courtroom during the trial, we believed, and this

22 is still our position, that such a chart is only here for the purposes of

23 helping us and that we should focus when examining witnesses on the facts

24 and how they relate to the individual counts of the indictment. It is

25 certain that the nuances in witness statements, and sometimes even

Page 153

1 differences in witness statements or what the witness tries to conceal or

2 emphasise in his or her statements will only help all of us to reach the

3 truth through the examination of such witness. We do not think that this

4 proofing chart can contain all of that. And it is our opinion that this

5 chart should contain only basic facts as to when the witness was

6 interviewed, how many times, concerning what particular circumstances,

7 what particular events, and what is proffered through his testimony in

8 relation to individual counts of the indictment.

9 If that is the case, if that should be the case, then the Defence

10 of Dragan Jokic has nothing against this procedure by the Prosecutor. And

11 maybe it would be a good idea to set the deadline for the Prosecutor to do

12 that today, because I think that can also assist us in the trial. Thank

13 you.

14 JUDGE SCHOMBURG: Thank you. Any other comments from any other

15 Defence team on this issue? This is not the case.

16 To be quite clear on this, we shouldn't mix up apples and pears.

17 This proofing chart is basically an outline based on the paragraphs of the

18 indictment and telling us, from the point of view of the Prosecution, what

19 a witness allegedly will testify to each paragraph and to each count only.

20 This does not replace the obligation to provide all the Defence teams and

21 the Trial Chamber with the necessary statements and previous transcripts.

22 But my point of concern is based on the experience that sometimes

23 a statement is not updated, and especially in this case, without having

24 had the possibility to go into some details, I expect that the Prosecution

25 will rely in certain cases on statements given prior to the Krstic case.

Page 154

1 And I'm afraid that sometimes especially related to crucial witnesses it

2 could pose some danger if we wouldn't have updated statements. I

3 emphasise limited to crucial witnesses. Because with a view to the

4 fundamental principle of a fair trial, I'm hesitant whether one can start

5 an examination in chief receiving an updated statement only two days

6 before testimony, sometimes, really, a totally different statement opposed

7 to the statement given, say, four or five years ago.

8 Therefore, I don't expect any concrete answer today, but I would

9 invite the Prosecution to review whether in one or other case it would be

10 appropriate to have already provided by investigators updated statements

11 and especially updated statements especially in relation to the accused in

12 this case, because we are discussing the individual criminal

13 responsibilities of four human beings sitting here in the courtroom during

14 trial.

15 So therefore, would you see a possibility to have these updated

16 statements and then to continue immediately? What about the so-called

17 proffers? Would it be acceptable for you to have these proffers in

18 principle five working days before the witness testifies, but in any

19 event, no longer than two working days before the testimony?

20 I know that we have to balance some interests here. There is of

21 course interest to have the witnesses for as short as possible a period of

22 time in The Hague. On the other hand, I think it's the right for the

23 parties to know in advance what can be expected from the coming witnesses.

24 Please, Mr. McCloskey.

25 MR. McCLOSKEY: Just to make sure I understand, are you suggesting

Page 155

1 that the material, the guts of the material in this proofing chart be

2 provided to the parties five days prior to the testimony of that witness?

3 JUDGE SCHOMBURG: Sorry to interrupt immediately. The so-called

4 proofing chart, I would expect that this covers the entire case as it was

5 done by the Prosecution in other cases in the past. I would say to be of

6 real assistance for both the parties and the Trial Chamber no later than

7 14 days before the start of the case.

8 An absolutely different issue is the question of the statements,

9 transcripts, updated statements, and proffers.

10 MR. McCLOSKEY: Thank you. I had not heard anything about

11 proffers or updated statements yet, and so that's a new topic for me. And

12 the proofing chart, yes, no problem. Fourteen days before the trial, I

13 hope to get this out before that. So -- because those 14 days are going

14 to be very busy.

15 Updated statements. Most of our statements are either from Krstic

16 witnesses who have testified relatively recently in the Krstic case after

17 providing, like Mr. Londrovic says, unfortunately sometimes many

18 statements. And after going through that process of providing statements

19 and going through the process of Krstic direct and cross-examination, I

20 would think that is fairly fresh and not in real need of updating.

21 Having said that, if in a -- as we speak to our witnesses

22 beforehand, if something significantly is changed or withdrawn, we expect

23 it to be our duty to tell that to the Defence as I think is the general

24 practice here.

25 Proffers, I'm not exactly sure what you meant by that. If you can

Page 156

1 run that by me one more time, I can think about it and be able to respond.

2 JUDGE SCHOMBURG: Usually in the practice of your colleagues,

3 immediately before a witness arriving or immediately after the arrival,

4 there is a document prepared summarising that what will be expected from

5 this witness and to a certain extent sometimes in the form of an update

6 what happened during the proofing phase, when you have new facts or you

7 are aware that a witness will not testify on certain issues and in certain

8 areas.

9 MR. McCLOSKEY: Your Honour, I would prefer to rely on the summary

10 we provided in the 65 ter filing as well as what will be updated, the

11 short outline in the -- in the proofing notes. And then if something

12 significant comes up, then provide that in an outline form to counsel as

13 opposed to just wrapping in everything that the person might be testifying

14 to in a whole. It seems to be cumulative to me, but new material that's

15 aside or different from the 65 ter summary or the proofing notes I think

16 is appropriate, as I said before. Our 65 ter summaries are not always

17 perfect, but I think your proofing notes will require us to -- to really

18 fine tune those so that they closely reflect much more precisely. Well,

19 we did a good job on our summaries. I think they need to be fine-tuned.

20 The proofing notes will do that. And if there's anything new that comes

21 up, I would certainly provide that in an outline form as opposed to an

22 outline form of what we expect, because really that is what is in the 65

23 ter summary and in the proofing notes.

24 JUDGE SCHOMBURG: Yes. That's absolutely to the point. When

25 anything changes, when there is new -- seems to be new evidence or other

Page 157

1 evidence no longer available, this should be provided to the parties and

2 also to the Trial Chamber in advance that we can -- that we all know what

3 we can expect from a witness.

4 And I think related to this, in principle these updated proofing

5 notes, they should arrive five working days before the witness testifies,

6 but in any event, no later than two working days.

7 From my point of view, it's sometimes extremely difficult when we

8 arrive in the morning in the courtroom and then have on our desk a new,

9 updated version of these proofing notes. And this could lead to a

10 situation where the Trial Chamber could come to the conclusion we can't

11 hear this witness today because it's the right of the parties to

12 familiarise with the new situation and adapt to this, especially when

13 preparing the cross.

14 Would this be acceptable for the Defence as well? I can see

15 nodding. Mr. Wilson, please.

16 MR. WILSON: It would, Your Honour.

17 MR. KARNAVAS: Yes, Your Honour.

18 JUDGE SCHOMBURG: Thank you. And on the other side, I see

19 nodding. That's --

20 MR. STOJANOVIC: [Interpretation] Yes.

21 JUDGE SCHOMBURG: Thank you. So --

22 MR. McCLOSKEY: Excuse me, Mr. President. I just wanted to point

23 out, I have many times tried to get Victims and Witnesses to provide me

24 witnesses five days prior to their testimony in order for all of us to be

25 prepared properly, and -- but many times I have failed, and I don't have a

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Page 159

1 chance to see that witness, you know, sometimes until the night before or

2 maybe two days before. Though I do expect our statements that we have

3 taken more recently and materially from the Krstic, I don't expect a whole

4 lot of changes. So I think our proofing notes prior to speaking to them

5 immediately before trial should be, you know, as accurate as is practical.

6 But there are found to be those last-minute changes as we manage to

7 finally talk to people right before the trial. And I know you're aware of

8 that problem, because I'm sure you see it every day.

9 JUDGE SCHOMBURG: There have, in anticipation of your comments, I

10 stated in any event, no later than two working days before, because

11 otherwise we would make the reservation from the point of view of the

12 Trial Chamber to reserve the right to say we can hear this witness only

13 one or two days later, depending on the importance of the changes coming

14 in on a last-minute basis.

15 MR. McCLOSKEY: Thank you, Mr. President. And just one other

16 thing to add. We will be going into some new territory in this case, and

17 as you have seen, there are quite a few witnesses from the various Bosnian

18 Serb military brigades, and I would, in my past experience, suggest that

19 many of these witnesses would be considered adverse witnesses, perhaps

20 sometimes even hostile, and I would certainly expect that witnesses in

21 this situation may change what they say quite a bit from the time we last

22 talked to them. Maybe not. I don't know. But as I say, it's an

23 uncharted territory. I don't know if they'll speak to me before they

24 testify, but we'll do our best to keep up in that particular experience,

25 because it will be very new and it will be very different than the

Page 160

1 standard witnesses who we are used to calling.

2 JUDGE SCHOMBURG: Before the break, I think it's not the time to

3 start on the issue of disclosure. Therefore, may I turn immediately to

4 the question of agreed facts.

5 I'm afraid that until now, nothing has changed in this direction,

6 and maybe -- may I please hear the observations from all the parties what

7 about agreed facts and especially on the chapeau elements of crime.

8 MR. McCLOSKEY: Mr. President, I have received some agreed facts

9 from counsel for Mr. Obrenovic and counsel for Mr. Jokic. They should

10 correct me if I'm wrong, but I don't believe there are any significant

11 facts that go to the elements of the case. And I haven't perhaps focused

12 on those agreed facts as much as I could have. Part of that practical

13 reality is it's only half of the Defence counsel that have done that and

14 it still remains very -- a very contested indictment, and the guts of that

15 indictment I'm sure will be contested even by the -- Mr. Wilson and

16 Mr. Stojanovic.

17 So we have all tried. We've all discussed this, and I think what

18 we've come up with is something, by think we do have our work cut out for

19 us at trial.

20 JUDGE SCHOMBURG: May I ask in the light of these comments by the

21 Office of the Prosecution is there any realistic chance for the parties to

22 meet with the Prosecution, especially on the question of chapeau elements

23 of the crime?

24 Mr. Wilson, please.

25 MR. WILSON: Your Honour, Mr. McCloskey proceeded on this issue,

Page 161

1 as I recall, to take the indictment and circle those portions that we

2 could agree to, which we have done. I would always be willing to talk to

3 him about any possible additional things that we might agree to. I have

4 gone over the indictment with Mr. Obrenovic, and what I submitted to

5 Mr. McCloskey represented what Mr. Obrenovic and his counsel felt that we

6 could agree to at that time.

7 JUDGE SCHOMBURG: May I ask you in addition, what about these

8 extremely time-consuming but of course if it's necessary, it's necessary,

9 the establishment of the chapeau elements of the crime? For example, the

10 existence of an armed conflict at this point in time. Is there a

11 realistic chance that, and no doubt it will only be possible if all the

12 four Defence teams come together and come to a one and only conclusion on

13 these chapeau elements of the crimes?

14 MR. WILSON: Your Honour, I don't have the circled indictment

15 before me and so I cannot recall, as I stand here, exactly what we have

16 agreed to. We may have agreed there was an armed conflict. I'll ask

17 Mr. McCloskey to remind me if I did or I did not.

18 JUDGE SCHOMBURG: I see some nodding on the side from the

19 Prosecution.

20 MR. McCLOSKEY: He did, Your Honour. The armed conflict,

21 according to my trusted authority, Janet Stewart, we do have an agreement

22 on Mr. Wilson for armed conflict.

23 Just perhaps to simplify things, we really don't have any extra

24 witnesses for these things. The witnesses themselves provide that

25 background, so we're not taking up extra court time on witness for these

Page 162

1 sort of special widespread and systematic, armed conflict, these sort of

2 things.

3 JUDGE SCHOMBURG: Mr. Karnavas.

4 MR. KARNAVAS: Thank you, Your Honour. Well, first of all, I

5 think it's up to the Prosecution to prove its entire case. I discussed

6 this matter thoroughly with Mr. Blagojevic. I don't have any instructions

7 on which I can then go back to Mr. McCloskey and say we agree on certain

8 facts or disagree on certain facts.

9 I do agree with Mr. McCloskey on one thing, and that is given the

10 number of witness the that are ultimately -- that ultimately will testify,

11 it really doesn't make much of a difference in the long-run. The case is

12 going to be long. I don't think even if we agreed to any facts it would

13 be any shorter. So -- but I regret to say that we cannot come to any

14 agreement even as to the chapeau elements. I don't think Mr. McCloskey is

15 going to have that difficult a time in producing witnesses at least to

16 present the evidence which he believes will establish those elements. But

17 I'm instruct that had Mr. McCloskey chose to indict Mr. Blagojevic, and so

18 now it's his obligation to demonstrate whether he has the proof, and of

19 course if he does, fine. If he doesn't, then Mr. Blagojevic should be

20 home with his family.

21 JUDGE SCHOMBURG: Mr. Stojanovic, please.

22 MR. STOJANOVIC: [Interpretation] Your Honour, we have invested

23 considerable efforts in trying to comply with this obligation of ours and

24 to reach agreement with the OTP on agreed facts. We have had several

25 meetings. We've tried to take the indictment count by count. But I have

Page 163

1 to say that progress was very difficult. And we agreed to disagree on key

2 elements of the indictment in relation to our defendant, Mr. Jokic.

3 We agreed to certain points, and in our written submission which

4 we handed in two days ago when we met the OTP, we agreed on some general

5 allegations from the indictment. But as for specific items mentioned in

6 the indictment, we have reached no agreement.

7 We know what we disagree about, and this is quite clear. Thank

8 you.

9 JUDGE SCHOMBURG: And finally, Mr. Londrovic.

10 MR. LONDROVIC: [Interpretation] Your Honour, the Defence of

11 Mr. Nikolic is in regular contact with the OTP. We are trying to come to

12 some agreed facts, but whatever one side proposes to the others, the other

13 side rejects. So that we have not managed to agree on anything. The only

14 thing we agree on is that we disagree on everything. I share the

15 standpoint of Mr. Karnavas, my colleague. It's up to the Prosecution to

16 prove what they want to prove. It's up to us to challenge this, and I

17 think we will not be able to agree on any crucial element.

18 JUDGE SCHOMBURG: Thank you for this clear statement. We know

19 where we are. And we also know that it's time for a break now.

20 Therefore, this hearing stays adjourned until ten minutes to five.

21 --- Recess taken at 4.22 p.m.

22 --- On resuming at 4.50 p.m.

23 JUDGE SCHOMBURG: Coming back to the agreed facts. I think it's

24 only fair that those are brought only to the attention on the consent of

25 those parties to the attention of the Trial Chamber. I think at the

Page 164

1 moment, we shouldn't know about this, but later on, no doubt, we would

2 need this.

3 Coming back to the question of the first witnesses to be called.

4 I heard that the Prosecution had indicated that already a list has been

5 distributed about the first 18 witnesses. Does this include the estimate

6 of time needed for those witnesses?

7 MR. McCLOSKEY: Your Honour, this is the page. It was just a very

8 informal thing to give them a rough guideline of the witnesses and the

9 order. The times are in the -- are in the pre-trial brief, and a lot of

10 those are Krstic witnesses, and so I hope that that is -- will be as

11 accurate as we can be. So they have, I think, reference to most of these

12 in the 65 ter. There may be a new witness or -- no. I think these are

13 all witnesses they have, so --

14 JUDGE SCHOMBURG: I think it would be of assistance if you would

15 have a separate column on the same document listing the realtime estimate,

16 because unfortunately, experience shows that there is a tendency that

17 witnesses stay longer than expected.

18 And we also have to do the scheduling in advance, and the

19 necessary courtroom reservation.

20 Therefore, my immediate next question would be the one: What

21 about cross-examination? Is there any agreement between the parties to

22 have a common cross-examination or separate cross-examination and then by

23 lead counsel or co-counsel? What about this? Mr. Wilson, please.

24 MR. WILSON: Your Honour, we did meet on that, all of the Defence

25 attorneys. There is no agreement as to a joint or common

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Page 166

1 cross-examination. I think all defendants want to have the opportunity to

2 cross-examine each witness if necessary. In practice, I'm sure there will

3 be many witnesses where perhaps only one or two or even no one

4 cross-examines them, but we certainly want the right to do that.

5 We would suggest that the Court follow the schedule as far as the

6 order of cross-examinations of the defendants as they're named in the

7 indictment, Mr. Blagojevic, Mr. Obrenovic, Mr. Jokic, and Mr. Nikolic. It

8 seems logical and if that's agreeable with the Court, that's what we would

9 do.

10 We certainly think that only one counsel from each time will be

11 conducting a cross-examination.

12 There is one other aspect to the matter of passing

13 cross-examination which we would like to bring to the Court's attention.

14 There may be many instances where when a witness is called, for instance,

15 Mr. Blagojevic and Mr. Obrenovic may pass cross-examination because

16 nothing has been said that we feel needs cross-examination. However, as

17 we go on down the list, it's possible that Mr. Jokic or Mr. Nikolic would

18 raise something in their cross-examination which would revise our views on

19 that, and so we would certainly like to have an opportunity to, if we pass

20 cross-examination, that we might revisit that question depending on what

21 comes up afterwards or, for that matter, in redirect by the Prosecution

22 after cross-examination by anyone who has cared to cross-examine.

23 JUDGE SCHOMBURG: The first point I think is the most difficult

24 one. From the perspective of fairness, my personal view would be to have

25 a kind of rotating system. For example, starting with the first witness

Page 167

1 with Defence team Mr. Blagojevic, Mr. Obrenovic, in this order. The

2 second witness starting with Defence team Obrenovic and in this order to

3 allow the parties to start the cross-examination. Sometimes it's really

4 of importance who starts the cross-examination.

5 So therefore, I would appreciate if the Defence teams would come

6 to agreement what is the preference. To do it in alphabetic order or to

7 do it in this rotation system.

8 May I hear your comments on this, please?

9 MR. WILSON: We did not discuss that as a possibility,

10 Your Honour. I'm, as far as Mr. Obrenovic is concerned, we're very

11 flexible. We'll do it anyway the Court and the other Defence attorneys

12 want to do it. We thought doing it in the order of the indictment would

13 be simpler because you'll always remember it. But if you want us to do it

14 that way or backwards, whatever. It really doesn't matter.

15 JUDGE SCHOMBURG: It's only an option and I want to hear your

16 comments on this.

17 Mr. Karnavas, please.

18 MR. KARNAVAS: Yes. I have never been in a case where there was

19 rotating terms. Frankly, I would have to strenuously -- I don't want to

20 say object to that method, but I would take exception to that only in that

21 I think that it should be done on a witness by witness basis.

22 I do not intend to cross-examine a witness unless I have something

23 to cross-examine on, and what we have all agreed on was that we would be

24 meeting with each other in advance of coming before the Tribunal, before

25 the Court, and so we would be able to say, you know, we would know in

Page 168

1 advance who would take the lead on a particular witness. I would prefer

2 that method, because I think some of us have more interest in

3 cross-examining particular witnesses than others. And so I would

4 respectfully request that you allow us to the extent that we can get along

5 as we are to sort of determine the order of cross-examination.

6 And while I'm on my feet as well, I would like to make sure that

7 we would have the opportunity, I know the Bench is quite active in asking

8 questions and rightly so because they're allowed under the Rules. I

9 certainly would like the opportunity --

10 JUDGE SCHOMBURG: Let's come to this very critical issue a little

11 bit later.

12 MR. KARNAVAS: Okay. All right.

13 JUDGE SCHOMBURG: May I hear Mr. Stojanovic on this first, please,

14 and then Mr. Londrovic.

15 MR. STOJANOVIC: [Interpretation] Your Honour, when agreeing on how

16 we will use our right to cross-examine witnesses, we decided we should do

17 so in the order that the accused are mentioned in the indictment.

18 However, it is logical that the four Defence teams will not have the same

19 ambitions in relation to each and every witness depending on the nature of

20 the witness's testimony.

21 The Defence of Dragan Jokic has no objections to the Defence teams

22 agreeing before the cross-examination of each witness who will

23 cross-examine and in what order. I think that we will not be

24 cross-examining most of the witnesses who are not directly linked to any

25 of the counts against Mr. Jokic.

Page 169

1 Your second question as to how we should operate within a team, we

2 have agreed that only one co-counsel will cross-examine, and we shall

3 agree among ourselves who will take each witness in case cross-examination

4 should be necessary. Thank you.

5 JUDGE SCHOMBURG: Thank you. And Mr. Londrovic, please, always

6 being the last one.

7 MR. LONDROVIC: [Interpretation] Your Honour, in principle, the

8 Defence had a meeting, I think two days ago, and in principle, we agreed

9 that cross-examination should be in the order in which the accused are

10 mentioned in the indictment. I have no objection to this, but I support

11 what my colleagues Mr. Stojanovic and Mr. Karnavas are said, that is

12 before the cross-examination of each witness, we can agree on the order.

13 I hope we will not be in a situation where we cannot agree, but should

14 such a thing happen, I propose that the order of the accused in the

15 indictment should prevail.

16 One of the co-counsel of each Defence team will cross-examine, and

17 we will agree among ourselves which member of the team it will be. Thank

18 you.

19 JUDGE SCHOMBURG: There's an absolute majority in favour of the

20 order, as we can see it, from the indictment, with the reservation that if

21 need may be in a certain case, the Defence teams will tell the

22 Trial Chamber in advance that there will be another order. But we will

23 only accept this on the basis of a unanimous decision by all Defence

24 teams. Otherwise, we will stick to the order as foreseen in the

25 indictment.

Page 170

1 When I asked the Prosecution about the first 18 witnesses and the

2 realtime estimate, this was on purpose and for the purposes of the

3 planning of the first months. We have to make the necessary reservations

4 for a courtroom as soon as possible, and I have already received the first

5 request for this.

6 The Trial Chamber is in a relatively difficult situation at this

7 point in time. We are in all likelihood concluding the case Prosecutor

8 versus Milomir Stakic, but then the judgement has to be written.

9 Opposed - and I think this is not an agreed fact among the Chambers and

10 the Prosecution - opposed to Prosecution, we don't have the necessary

11 staff members to do both, writing a judgement and preparing on a daily

12 basis a case. Therefore, our suggestion would be to start the case on a

13 slow pace. This would, say, three or maximum four days per week.

14 I know that it is extremely difficult for most of Defence counsel

15 commuting from far away or shorter distance to The Hague. Therefore, I

16 invite you for your comments. What would be, from your point of view, the

17 better solution, to make reservation from Tuesday through Thursday, or

18 from Wednesday to Friday, or the third option, from Monday to Wednesday?

19 What would be of more assistance for you?

20 Mr. Wilson, please.

21 MR. WILSON: Your Honour, in our meeting with --

22 THE INTERPRETER: Microphone, please.

23 MR. WILSON: Sorry. In our meeting with Mr. Von Hebel we

24 discussed this briefly, and it's my understanding that most people, and I

25 speak only for myself at this point, that most of us agreed that Tuesday

Page 171

1 to Thursday would work well for us. I still feel that way, but I'm not

2 sure that there's a great difference either way.

3 JUDGE SCHOMBURG: Mr. Karnavas.

4 MR. KARNAVAS: That works fine for me, Your Honour, but I'm very

5 flexible. It doesn't matter.

6 JUDGE SCHOMBURG: Mr. Stojanovic.

7 MR. STOJANOVIC: [Interpretation] In this respect, we are

8 completely open. You may decide which three consecutive days should be

9 trial days. We feel that the days should not be separated, that they

10 should be consecutive, but we don't mind which days they are.

11 JUDGE SCHOMBURG: Mr. Londrovic.

12 MR. LONDROVIC: [Interpretation] I think we have already agreed it

13 should be from Tuesday to Thursday when we had our last conference.

14 JUDGE SCHOMBURG: So then let's at least start this way and let's

15 find out whether or not we can speed up later.

16 But before we come to always the most difficult issue of

17 disclosure, let me ask once again, being confronted now with this number

18 of witnesses, this number of experts, what's the realtime, a realistic

19 estimate for the Prosecution? How long do you believe your case will

20 take, including court recess and other foreseeable events?

21 MR. McCLOSKEY: Mr. President, my real answer is I really don't

22 know. I would like to shoot for nine months, but I can tell you that I

23 base that on watching the Samac case with this many defendants, just

24 measuring the number of witnesses I know were roughly called in Samac.

25 It's not as many as we're planning but I hope to continue to work to cut

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Page 173

1 that witness list down as we resolve our 92 bis issues and see what's

2 cumulative. But I would be very happy to finish the Prosecution's case in

3 six to nine months, but with some 50 plus outstanding 92 bis witnesses and

4 some witnesses that it's unclear whether they will show up or not, it's

5 hard to gauge this very clearly. But I would certainly hope six or nine

6 months but I wouldn't be surprised if it was longer.

7 After a couple of weeks of trial I'll have a better idea. I think

8 we all will, because we'll get a good mix of experts and civilian and

9 soldier witnesses and get an idea of how long cross-examination is going

10 to take. But cross-examination and 92 bis are such question marks right

11 now it's hard for me to give you much more than that.

12 JUDGE SCHOMBURG: So even based on optimistic estimate, taking

13 into account that there will be the summer court recess from the 1st of

14 August, then following three weeks, and then the last ten days also in

15 December until -- I don't have the calendar with me at this moment, but I

16 think the first two weeks in January as well, so it would be realistic to

17 state that, if any, Defence case couldn't start before mid-January. Would

18 this be a correct conclusion?

19 MR. McCLOSKEY: That's our best, I would say, estimate at this

20 point.

21 JUDGE SCHOMBURG: Taking into account that in a case against four

22 accused, the Defence case will take approximately at least the same period

23 of time, then I'm afraid the case would cover the entire period until,

24 say, November. Once again, an optimistic approach.

25 So we have to realise that this case will effectively take,

Page 174

1 leaving aside for a moment a judgement in case we have a Defence case,

2 then it will cover the entire year 2004.

3 But as you correctly pointed out, I think it's premature. Let's

4 start the case and after the first two or three months see how we can

5 continue. But only for the purposes of the planning of the future in this

6 Tribunal, it is absolutely necessary that we have a clear estimate. We

7 are confronted with the extremely difficult problem, but we only can

8 assign new Ad Litem Judges to another case when the judgement in the

9 previous case has been finalised. If not, we are in this comfortable

10 situation as we are at the moment, that the previous case takes us less

11 than one month and then there is overlapping, writing the judgement in one

12 case and sitting already at the same time in another case. Then following

13 this case, we have to wait before assigning new Ad Litem Judges to another

14 case until the judgement has been finalised, and we have to be aware only

15 that the parties know that the now elected pool of Ad Litem Judges, their

16 mandate expires in June 2005, and the mandate of the now permanent Judges

17 expires the 17th of November, 2005. These are the absolute deadlines for

18 the case.

19 Let's now turn to the issue of disclosure. I'm always optimistic

20 that these problems can be resolved between the parties and only as a

21 really the final arbiter of the Judge should act.

22 May I ask the Defence team for Mr. Blagojevic, are there any other

23 problems than -- that apparently some statements in B/C/S are missing, but

24 I think this shouldn't be a problem, and it could be resolved.

25 MR. KARNAVAS: Thank you, Your Honour. With respect to any

Page 175

1 statements that are missing or that we don't have the translations, as I

2 understand it, we are working closely with -- with the Prosecution, and we

3 have an excellent cooperation on that aspect. Ms. Janet Stewart, I want

4 to single her out for her Herculean efforts to assist us in every possible

5 way. And on very short time notice. So, we're very happy with that.

6 On the global side of it, though, I don't think there is a

7 problem, however, and I don't want to sound like Cassandra, but

8 Your Honour, I had filed a motion requesting that I be entitled to the

9 entire case. You ruled on it. I wasn't clear on it. I filed a motion

10 for clarification but I did submit a letter to the Prosecution, copied

11 everybody including yourself. I am told, I am told that I am receiving

12 everything that I'm entitled to based on your decision. I have no reason

13 to believe that I'm not, and I know that there may come a time when

14 something may pop up inadvertently, but I know that is the exception. I

15 think at the moment I have everything that has been promised to us and has

16 been agreed upon and has been ruled upon in this particular case.

17 JUDGE SCHOMBURG: Thank you. I was informed that the Obrenovic

18 team is at this point in time missing key statements from the

19 Zvornik Brigade in B/C/S. Has this been resolved?

20 MR. WILSON: Your Honour, we were missing and I think still at the

21 moment are still missing some statements. It's my understanding

22 that -- we have had conferences with the Prosecutor this week and that

23 those will be forthcoming.

24 JUDGE SCHOMBURG: Thank you. Then let's turn the other way

25 around. Are there any problems to be discussed today for the Nikolic

Page 176

1 team?

2 MR. LONDROVIC: [Interpretation] Your Honour, we did have problems

3 with disclosure. Mr. McCloskey didn't believe us when we told him about

4 the amount of documents. However, we held a meeting with Ms. Stewart, and

5 we were able to identify all problems, that is, all statements that we are

6 missing in B/C/S so that we could discuss these statements with our client

7 and prepare for his defence. We were promised that this would be solved

8 quickly. Priorities have been established, and I do believe that the

9 issue will soon be solved.

10 I understand the situation of the Prosecutor. We know that they

11 have a lot of problems with translation, but as we have been promised, I

12 hope that this problem will be overcome in the next few days.

13 JUDGE SCHOMBURG: No doubt, I share your hope. And finally the

14 Jokic team.

15 MR. STOJANOVIC: [Interpretation] Your Honour, two days ago we

16 discussed the issue with the Prosecutor while preparing for this Status

17 Conference. It is correct that our team has not been supplied with

18 approximately eight statements of witnesses in B/C/S, but we were given

19 these statements on audiotapes, and we agreed that we should use them for

20 the time being, and we agreed with Ms. Stewart that three

21 transcripts -- three statements of witnesses will be available to us

22 within the next couple of days, next week, the statements which are very

23 important for the preparation of our defence.

24 But let me take this opportunity to raise an issue that was

25 emphasised at the meeting with Mr. Von Hebel, namely the work of the

Page 177

1 Defence in the context, in the light of the decision of the Chamber on

2 interviews with Prosecution witnesses and interviews with witnesses that

3 the Defence would like to conduct in the field. Pursuant to that

4 decision, it is necessary for the Defence to inform the Prosecutor thereof

5 ten days prior to the actual interview if that witness is on the

6 Prosecutor's list and that the same should apply in case of potential

7 witnesses.

8 We reached an agreement in principle, and I would like you to

9 confirm this today, that when it comes to the first part of this decision,

10 that ten days prior to the interview with the witness we should inform the

11 Prosecutor thereof, that is fine. That can function. As for the

12 potential witnesses, we do not know who they are at this point, and we

13 agreed that we should approach these witnesses, interview them, and then,

14 after that, inform the Prosecutor on that interview, and we -- it is our

15 understanding that the Prosecution does not object to this -- to this

16 process.

17 If that form of work could be applied in the field, that would

18 considerably facilitate the situation of the Defence. We do not wish to

19 cause any difficulties, and if we should encounter anything -- any

20 difficulty, we would of course inform the Prosecutor of those

21 difficulties.

22 As for the witnesses that have already been interviewed by the

23 Prosecutor and proposed as trial witnesses by the Prosecutor, the same

24 applies to those witnesses, including the ones that we have already

25 approached while preparing for the defence of our client.

Page 178

1 JUDGE SCHOMBURG: Thank you. Here we are all in agreement. This

2 decision was issued, I think it was, the 18th of February when we didn't

3 know really what the witnesses would be. We have now no later than

4 Monday, this is the 31st of March, the final witness list, and therefore,

5 the word "potential witnesses" can be replaced by proposed witnesses,

6 those witnesses included in the witness list of the Prosecution. Can you

7 agree?

8 Sorry, Mr. Wilson was first on his feet.

9 MR. McCLOSKEY: He was.

10 MR. WILSON: Your Honour, I have a different problem with the

11 order as it stands and I would like to address the Court on that. There

12 are two problems. One is the ten-day rule and the other is the scope of

13 paragraph 6 of the order, I would respectfully submit and ask the Court to

14 reconsider the rules that we must notify the Prosecution ten days before

15 we want to talk to anyone who has been listed as a witness. It's my

16 understanding that by placing witnesses on a witness list, that doesn't

17 make them the Prosecution's witnesses. They should be witnesses at this

18 trial, and I should be allowed to talk to them.

19 I believe that I have conducted myself appropriately, along with

20 Mr. Slijepcevic and the other members of our team. I can see that in some

21 cases it might be required, based on the experience of the Court, to issue

22 such an order as this requiring a ten-day notice. I don't like to have to

23 tell Mr. McCloskey who I want to talk to. I don't want to seek his

24 permission.

25 I believe that in this instance that there's nothing that's

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Page 180

1 happened here that requires anything like that, and so I would like to

2 respectfully request that you reconsider that rule and that we

3 respectfully submit it's unnecessary and I find it demeaning.

4 The other aspect of paragraph 6 which I would respectfully ask the

5 Court to consider is the scope of paragraph 6, because as it is written it

6 prohibits any contact between the friends, relatives, et cetera of the

7 defendants with any friend, relatives, et cetera of people who appear on

8 this witness list. That's a very wide group of people, and the town where

9 my client lives, Zvornik, is a very small town. These folks run into each

10 other all the time. As a precautionary matter, I've expressed to my

11 client's family that they should be very careful and have no contact as

12 you have ordered. But again, I believe that the scope of this order, if

13 the Court looks at it, that you will find that it is very, very broad and

14 it creates a number of problems.

15 I would like to say also there's a practical problem with the

16 ten-day rule for me. When I go to Bosnia, I'm usually approved by the

17 registry to go down there for four or five days. That's all they want to

18 pay for. That's fine. I understand that we have budgets. That means

19 when I'm down there on the first day of my visit and I find out that

20 perhaps I want to talk to another witness or maybe sometimes I get word

21 that witness are willing to talk to me, I can't comply with the ten-day

22 rule because I've got to be out of there by five days because that's all

23 that the registry is authorised me to be there. So there are many

24 practical problems, and I would respectfully ask the Court to reconsider

25 that.

Page 181

1 And I've talked to Mr. McCloskey about this, and I would be, of

2 course, interested in what he has to say about it.

3 JUDGE SCHOMBURG: Before I give the floor to Mr. McCloskey, please

4 be aware that this is a mutual question. I was just recently confronted

5 with a number of problems emanating from the fact that Prosecution

6 approached Defence witnesses, and it was extremely difficult to settle

7 these problems. Therefore, in principle there should be such a rule, at

8 least to further -- to notify the other side prior to any contact to a

9 witness. Otherwise, this will cause problems.

10 We're in the difficult situation that we have to work with common

11 law rules in a country that has a civil law tradition. And in a civil law

12 tradition, it would be against all rules of ethics to contact any witness

13 before trial. The first opportunity to contact in a civil law country is

14 in the courtroom. Therefore, from the perspective of people living in

15 former Yugoslavia, for them it's a really shock sometimes to be approached

16 by Defence counsel or having been here as Defence witness, then being

17 immediately afterwards approached by the Prosecution whether they would be

18 ready to testify as Prosecution witness in other cases. And we really

19 have to be aware that this is an extremely serious problem, because more

20 and more we should be aware that all the cases we are hearing here are

21 only slices of one huge case, and a witness testifying on behalf or called

22 by the Defence can maybe necessarily be asked by the Prosecution the next

23 day, "Are you prepared in the other direction to testify as Prosecution

24 witness?"

25 These problems will, I think, become more and more predominant,

Page 182

1 and therefore, we have to have some rules. But I invite Mr. McCloskey.

2 What are your comments on this?

3 MR. McCLOSKEY: Mr. President, I do think the rule is an

4 appropriate rule, especially as we look towards some of the more

5 vulnerable and perhaps fearful people on our witness list given the

6 context of not only the civil law system but the war and the situation

7 they find themselves in.

8 Having said that, however, I think that perhaps in discussion was

9 Defence counsel we may be able to resolve the problem, because I think

10 it's a more limited problem than we may -- than I'm actually comfortable

11 with talking about in open court. But I think if Defence counsel and I

12 get together we may be able to resolve this. It might not be exactly to

13 the order of your rule, but I think we can get back to Mr. Von Hebel, and

14 I think we can both satisfy the spirit of that rule and the concerns of

15 the Defence.

16 JUDGE SCHOMBURG: I think this ten-day rule is a guideline, not

17 more, not less. And if the parties come to an agreement that without this

18 notice of ten days based on the assessment of the Prosecution, there's

19 nothing prohibiting Defence counsel to act without this ten-day rule.

20 It's a guideline. And in case you come to an agreement that you mention

21 correctly, unfortunately the Registrar can only pay for four or five days,

22 maximum a week, of a visit, that you can come to an agreement that these

23 witnesses be heard. And in case Prosecution comes to the conclusion this

24 is a special, vulnerable witness, please take into account this ten-day

25 rule or let us please prepare the witness that -- and in essence it comes

Page 183

1 down to this problem that the Prosecution has the possibility to tell a

2 witness in advance, "You should know you will be approached by Defence

3 counsel. Please don't be afraid." This is that what the rules tell us,

4 and we have to obey the rules. And this will also assist you when

5 approaching witnesses, I would say.

6 This is the best solution, and this ruling, especially under

7 paragraph 6, should be handled and implemented in this -- with this

8 flexible approach. I think when we do this, everybody could live with

9 this.

10 I can't see any objections. Then let's proceed this way and

11 regard the ten days as a guideline. In case parties agree, then it's not

12 mandatory.

13 Now the other way around. Any complaints by the Prosecution

14 regarding reciprocal disclosure?

15 MR. McCLOSKEY: Well, we would like reciprocal discovery,

16 disclosure at the earliest possible time so we can work on our case and be

17 prepared to properly put on our case. The rules are somewhat vague about

18 timing related to Defence materials, but I think as the Defence becomes

19 clear about -- especially about documents, what documents they may want to

20 use as exhibits, that would be especially appreciated, because I think

21 clearly when the Defence does come across important documents that are not

22 part of the collection of the Prosecution that they know that's something

23 they will want to be using. And so that's all I would have to say on

24 that.

25 JUDGE SCHOMBURG: I think we have to take into account that it's

Page 184

1 extremely difficult for especially the Defence in this case. You said

2 "When you come across a document that should be disclosed to the other

3 side based on this reciprocal disclosure." With this deluge of paperwork,

4 I don't think that one party deliberately will not live up to the

5 obligations under this rule, and the same is true but to a lesser extent

6 because the Prosecution has the possibility of this huge database, and

7 therefore, I don't believe that at this moment there has to be any ruling

8 on the question of this kind of disclosure. I think the parties will do

9 their very best when they come across such a document and then immediately

10 to disclose this.

11 Coming back to the opening of the case. I heard from

12 Mr. Von Hebel that the Prosecution estimates that the opening statement

13 will take two to three hours. Is this correct?

14 MR. McCLOSKEY: Yes, Mr. President.

15 JUDGE SCHOMBURG: The question was what about statements for the

16 Defence? For me, this is a very serious issue. From my point of view,

17 the fact that an accused has chosen not to defend himself but make use of

18 Defence counsel does not at the same time automatically waive the right to

19 make own statements. Under our rules, it's foreseen, as we all know, that

20 an accused may give testimony as a witness. Typical common law solution,

21 unheard in a civil law case.

22 In addition, this is the possibility of an 84 bis statement.

23 Furthermore, following the approach in Kunarac Appeals Chamber,

24 the accused enjoys, no doubt, the right of having the last word if he so

25 wants under the guidance of Defence counsel.

Page 185

1 But nevertheless, in my opinion, under the guidance of

2 professional Defence counsel, it is the right of an accused, whenever he

3 wants, and the Trial Chamber feels this would be an appropriate time to

4 hear an accused on this, to make a statement or to give a statement under

5 the rule 84 bis applied in analogy. This means there can't be any

6 question, and the Trial Chamber has to rule on the probative value of this

7 statement.

8 Are there any principal objections by the parties to this

9 approach? Mr. Karnavas.

10 MR. KARNAVAS: Thank you, Your Honour. Well, first of all, let me

11 reassure you that I am -- I fully agree with your interpretation of the

12 rules, and I fully agree with you that it is the right of the accused, and

13 I support that right, and I think that at least with respect to

14 Mr. Blagojevic, I anticipate that he will be making a statement at the

15 beginning of the proceedings which would be in addition to opening

16 statement by counsel.

17 So I understand the rules. I understand how they come about, and

18 I think we wish to avail ourselves of the opportunity provided in the

19 rules, which I think is an excellent rule.

20 JUDGE SCHOMBURG: So I take it that we can expect that instead of

21 this form of opening statement your client would be -- Defence team would

22 like to have in addition a response to the OTP statement?

23 MR. KARNAVAS: Here is what I would like, Your Honour: The client

24 obviously -- Mr. Blagojevic is entitled to make his statement.

25 JUDGE SCHOMBURG: Right. That's one issue.

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Page 187

1 MR. KARNAVAS: That is one issue. Now -- this is going to be a

2 long trial. I think the Prosecutor was extremely optimistic. Probably

3 may take close to a year before they finish their case. Mr. McCloskey is

4 a trained lawyer. He's going to get up and in three hours or more or less

5 put -- give you a picture of what he believes the evidence will show in

6 this particular case. It's his opportunity to showcase his case and of

7 course begin the persuasion process even though opening statements, we all

8 agree, is not evidence. Nonetheless, statistics have shown that it can be

9 very persuasive.

10 I would like to have the opportunity to be able to give a short

11 rebuttal at that point, say 30 minutes to 45 maximum. I don't think I

12 will need that entire time, but I would like to be able to give you also

13 an opportunity to immediately hear our rebuttal to that opening.

14 Because of the magnitude of this particular case or any case

15 before this particular Tribunal, and because we have this hybrid system,

16 it's impossible for a Defence, no matter how prepared they are, to give a

17 100 per cent opening at the conclusion of the Prosecution's opening.

18 Therefore, we would also like to be able to give an opening statement, a

19 full opening statement, at the conclusion of the Prosecution's case

20 because perhaps on some counts, maybe even all counts, they will not be

21 able to prevail on a motion for judgement of acquittal which will follow

22 the presentation of their case in chief.

23 Of course, we want to being fair to the Prosecution, and they have

24 indicated, they have expressed a willingness to go along with our proposal

25 provide that would they have that opportunity, in other words, to present

Page 188

1 a small rebuttal at the conclusion of our opening statement which will

2 begin at the opening of our case in chief or our case. And I have no

3 problem with that. I think that's fair. But I think that it won't take

4 that much time. We're talking about a limited amount of time. I think

5 that given the nature of this case, we would like to be able to share with

6 you our thoughts and how we believe the evidence will turn out as early as

7 the Prosecution's case in chief.

8 JUDGE SCHOMBURG: No doubt this will -- would assist the

9 Trial Chamber, because, yes, hearing the first statement by the Defence

10 only maybe nine months or one year later would facilitate, and it may

11 serve as an eye-opener for the Trial Chamber if we can have your views at

12 the beginning of the case, of course for a limited period of time. But

13 this rule, no doubt, should be applied mutually. Therefore, this would

14 mean that after the start of the Defence case, the Prosecution would enjoy

15 the right also to have a short, let's call it, rebuttal or response to

16 your opening statements.

17 Are there any objections by the Prosecution to this point, leaving

18 aside the point of own statements given by the accused in person.

19 MR. McCLOSKEY: Mr. President, I -- I would be interested to hear

20 what other Defence counsel have to say on this point. I am open to

21 innovations, but the rules lay out the traditional approach, and my

22 concern is that the rebuttal will turn into argument, both on the Defence

23 counsel and perhaps from the Prosecution. And perhaps this is a little

24 bit too much lawyering going on. Though, I think it's an interesting idea

25 and I'm not dead against it, but I would like to hear other counsel's

Page 189

1 feelings on it so that we might go into this with some perhaps agreement,

2 because it is interesting. It's an idea that Mr. Karnavas brought up, and

3 he has now acknowledged no objection to the Prosecution response. So I

4 would like to hear what other Defence counsel have to say about it. I

5 would not want to commit myself right now.


7 MR. WILSON: Your Honour, like Mr. McCloskey, I think it is also

8 an interesting idea. I'd like to think about it some more. I think I

9 like all parts of it except the government's rebuttal to our opening. So

10 I would like to think through that briefly before I take a position on it.

11 JUDGE SCHOMBURG: I think there's time enough, and we can decide

12 on this issue maybe the 5th of May. But let's first hear the other

13 submissions.

14 Mr. Stojanovic, please.

15 MR. STOJANOVIC: [Interpretation] We analysed this issue in the

16 context of Rule 84 of the Rules of Procedure and Evidence, and I feel that

17 we are now in a new situation.

18 As for Dragan Jokic's Defence team, we said so the day before

19 yesterday; if the OTP and the Defence of an accused agree that after the

20 opening statement by the OTP, which is expected to last three hours, the

21 Defence of Blagojevic is able to take half an hour to present the main

22 lines of defence, in that case, the Defence of Dragan Jokic would also

23 request that we be allowed half an hour to put forward the main points of

24 his defence, taking into account all that we have to say in connection

25 with the allegations against him.

Page 190

1 After the Defence case, the OTP would also have the right to rebut

2 the opening statement of the Defence in the same way. Thank you.

3 JUDGE SCHOMBURG: And Mr. Londrovic, please.

4 MR. LONDROVIC: [Interpretation] Your Honour, the Defence of the

5 accused Nikolic discussed this issue with our client, and we reached the

6 conclusion that the rule should be respected. The Prosecutor has the

7 right to an opening statement, and the Defence has to decide whether to

8 make their opening statement after the OTP opening statement or at the

9 start of the Defence case. We considered what response we could make to

10 the OTP immediately after the opening statement, not knowing what it will

11 be, but assuming that it will be what is stated in the pre-trial brief to

12 which we have responded, today we decided that whatever Your Honour

13 decides, we shall have our opening statement at the start of the Defence

14 case. But we have no objection to the other Defence teams being given the

15 opportunity to present their arguments briefly as they proposed. We do

16 not challenge their right to this, but today we reached our decision, and

17 we shall have our opening statement at the start of our Defence case.

18 JUDGE SCHOMBURG: Thank you for this clear decision, but I think

19 it would be only fair to reserve your right to also present an opening

20 statement when the Defence case starts. So I think it shouldn't be an

21 either/or. In some cases there is a development throughout the case that

22 would bring you in a situation that it would be appropriate to hear

23 additional remarks immediately when your case will start.

24 But I share the view of Mr. Wilson. We should think about this

25 again. We had a final decision by Mr. Londrovic, and let's revisit this

Page 191

1 question when the time is ripe for this, and please let us know what you

2 are planning no later than the 5th of May.

3 MR. KARNAVAS: Your Honour, if I may. Just one second.

4 JUDGE SCHOMBURG: Mr. Karnavas, please.

5 MR. KARNAVAS: My only concern if it comes -- obviously if I'm

6 going to do -- if -- if the Court would allow for us to make a short

7 presentation, it takes a lot more time to prepare a cogent statement than

8 to just get up and speak for hours and hours. Obviously I don't intend to

9 make an argument. I know the difference between opening statement and

10 closing argument. But we would like to have some, perhaps even a what

11 week earlier a notice, because it will take a considerable amount of time

12 to put a cogent 30-minute opening statement for -- that would be relevant.

13 Thank you.

14 JUDGE SCHOMBURG: I think also here it's premature to rule

15 finally. We take into account your observation.

16 May I ask, are there any other issues to be discussed already

17 today save the one point -- sorry, I forgot to ask the Prosecution.

18 Does the Prosecution agree in this case that it is the right to

19 address the Trial Chamber that the accused tried to address the

20 accused -- the Trial Chamber following Rule 84 bis, not only at that point

21 in time foreseen under the Rules but also in addition when an accused,

22 having heard the advice of Defence counsel, wants to take the floor and to

23 address the Trial Chamber by a statement. Would you have any principal

24 problems with this approach?

25 MR. McCLOSKEY: Mr. President, my problems with that approach

Page 192

1 would be much less so if I was able to question the accused after his

2 statement, but that perhaps goes back to my fundamental background in that

3 statements don't come in without questions from the parties. I understand

4 this is certainly different. The rules are different. But as we get away

5 from the established rule and move into a more fluid approach, I think we

6 could also consider perhaps a point where the Prosecution could enter into

7 this also, or perhaps direct questions to the Court to ask the accused.

8 Given our knowledge of the case and that certain things may come

9 out, questions that are burning to be asked could not be asked under the

10 current Rules as I understand them.

11 So in principle I am interested in the ongoing approach a bit away

12 from the Rule, but I would just ask to perhaps if we do get away from the

13 Rule as it's written, we may consider approaches that would take my

14 concerns into consideration.

15 JUDGE SCHOMBURG: Thank you. I take it that there are no

16 principle objections, and let's find out. It may turn out that

17 the -- that Defence counsel believe it's more appropriate that the accused

18 makes use of the right to remain silent. So let us wait and see. But in

19 principle, I see this as a human right. In principle, I regard it as a

20 fundamental right of an accused not to be the mere object of a criminal

21 procedure but an active participant being subject of the proceedings.

22 Let's not discuss theoretical questions. Are there any practical

23 questions in the moment for today? I don't want finally to discuss the

24 guidelines for the admissibility of evidence. I have to thank the parties

25 for their comments. I already now can tell you that some of them will be

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Page 194

1 taken into account. Let me only give one comment on this. I think we

2 should make a clear distinction between, on the one-hand side, the

3 admission into evidence and, on the other side, the burden of proof. I

4 think there is no rule or guideline necessary. The burden of proof is

5 with the Prosecution. And also the test is quite clear. Therefore, the

6 question of the weight of a document or evidence should not be discussed

7 in-depth during the admission of evidence. No doubt the test is proof

8 beyond a reasonable doubt, and therefore, this should not form part of

9 these guidelines.

10 All the other comments will be seriously taken into account and,

11 no doubt, some parts have a number of merits. And as I also addressed

12 Mr. Wilson previously, we are aware that we are in a predominantly common

13 law system, and it is not for the Trial Chamber to say: Fill the gaps

14 where the Prosecution may have failed to prove their case. This is not

15 the point.

16 It might also be that we feel it necessary to hear additional

17 evidence not knowing at all in advance what the outcome will be. As

18 experience shows, sometimes a Chamber witness serves more the interest of

19 the Defence; sometimes it serves more the interest of the Prosecution. So

20 the Rules provide under Rule 98, but quite clearly this is the exception,

21 not the rule.

22 As regards the questioning by the Judges, the Rules provide, no

23 doubt, that at any point in time we are allowed to put questions to

24 witnesses. Sometimes in order to streamline the case; sometimes in order

25 not to come back to a document which is already on the ELMO. And there

Page 195

1 are a number of reasons why for especially technical problems we will put

2 these questions. But as I emphasised already earlier and you can read it

3 in the guidelines, in principle, we should be aware that no doubt we are a

4 criminal Tribunal, and the first criterion is the question of relevance.

5 And I would appreciate that the question of relevance would already be

6 taken into account at an earlier stage. That would minimise the disclosed

7 paper.

8 But it's my belief that as to the fact that we are mandated under

9 chapter VII of the charter of the United Nations, we can't accept to live

10 with the virtual reality. In this case, in the moment, I can't see any

11 such danger that we will confront it by agreed facts that have nothing to

12 do with real facts.

13 I don't know whether you are aware that the rules on the ICC are

14 slightly different on this issue, giving the Judges a little bit more

15 leeway. But in the concrete case, we will show, no doubt, the necessary

16 self-restraint, but on other hand, when we regard it as mandatory, to

17 clarify a core issue of the case, then we will not hesitate to call a

18 witness, to put additional questions to a witness, but as mentioned, this

19 will be the exception, of course, not the rule. The burden of proof is

20 with the Prosecution. We have the Rule 90, what is the burden of the

21 Defence. I think maybe in this case it's even more limited than in other

22 case what the Judges have to do proprio motu, but we have to always be

23 aware of our obligations explicitly mentioned and stated in the Kupreskic

24 appeal judgement, even in case when both parties don't want to hear a

25 witness, it might be the obligation for the Chamber to hear an additional

Page 196

1 witness. And therefore, this has also to be taken into account.

2 I think in the moment it's a more theoretical problem than a

3 practical one. Be assured that we follow the principle that this is a

4 predominantly common law system.

5 Any other issues to be raised in the moment?

6 Mr. McCloskey, please.

7 MR. McCLOSKEY: Yes, briefly, Mr. President. Mr. Von Hebel

8 mentioned, it was almost in passing, views on legal motions and mentioned

9 your viewpoint about oral motions, and I wondered if you could clarify

10 what your expectations are regarding the filing of legal motions.

11 JUDGE SCHOMBURG: From my point of view, in principle all motions

12 should be oral motions in order to avoid, as I like to say, unnecessary

13 filings. When we are here together, in principle oral motions should be

14 the rule, and an oral response also the rule.

15 In case of serious, especially legal problems, then on a

16 case-by-case basis, the Trial Chamber would invite the parties to submit

17 their view in writing. But in principle, it should be an oral hearing

18 also related to these legal issues.

19 MR. McCLOSKEY: Thank you, Mr. President.

20 MR. KARNAVAS: If I could be heard just on that point. As the

21 Court probably is aware, I file occasionally motions --

22 JUDGE SCHOMBURG: We're aware.

23 MR. KARNAVAS: I do so sparingly, but nonetheless I do so when I

24 think it's necessary to make a record, only because I want to make sure of

25 two things one, that I am diligent in protecting Mr. Blagojevic's rights,

Page 197

1 but also I think it's always a good idea for the lawyer to put himself on

2 the line in the event the case has to be on appeal where another lawyer

3 might look at the record and suggest that the accused was not properly

4 served by his own lawyer. So those are the two reasons why I file

5 motions. One, to protect his record, but also to give him the opportunity

6 at the conclusion of the trial, if we have to be on appeal, for him to

7 have the basis, if it's there, to raise an ineffective assistance of

8 counsel.

9 I fully support the -- your suggestion of having oral motions.

10 There may come a time, however, Your Honour, where you make a ruling with

11 which, with all due respect, I might disagree. Or I may feel perhaps

12 because of the shortness of time I have not been -- I have not had the

13 opportunity to properly address the issue, so it's always been my belief

14 and my practice to then file a supplemental to the record to make sure

15 that whatever it was that I was trying to convey is conveyed properly. So

16 I -- and I would like to make sure that I would be given that opportunity.

17 I can understand the Prosecutor wanting to have oral motions. I

18 can understand His Honour feeling that that's the best approach. But

19 sometimes motions have to be filed in writing to make sure that we have a

20 clear record, and of course the decision sometimes I think needs to be in

21 writing as well so we all have guidance.

22 JUDGE SCHOMBURG: Absolutely, and nobody can prohibit you from

23 filing written motions. And as I mentioned beforehand, it may even be the

24 case that especially on legal issues we would ask the parties to submit

25 written motions because here we have to be extremely careful with the

Page 198

1 wording. And this is true not only for the parties but also for the

2 Chamber. Therefore, it should be decided on a case-by-case basis, but in

3 principle, I believe oral rulings will save a lot of time, a lot of money,

4 and protecting a lot of our forests.

5 Any other issues? Please.

6 MR. STOJANOVIC: [Interpretation] Your Honour, we filed a motion

7 requesting an extension by a week of the deadline for our response under

8 Rules 92 and 94 of the Rules of Procedure and Evidence. It was only in

9 early March that I received both the Prosecution motions with their many

10 addenda, and together with my co-counsel, I looked through all of these

11 documents. However, our deadline is the 31st, but we shall lose some time

12 travelling now, and I have heard that my colleagues from the Obrenovic

13 Defence have been granted an extension until the 7th of April. So I would

14 like to take this opportunity to request that you allow us to submit our

15 written response by the 7th of April. Thank you, Your Honour.

16 JUDGE SCHOMBURG: I'm afraid a written decision is already filed.

17 I don't know whether it's been distributed or not. The Trial Chamber came

18 to the conclusion that the reasons justifying the extension for the one

19 Defence team are not on the same level as your submission alludes to and

20 that there is a clear factual distinction between made, and therefore, at

21 this point in time, we didn't feel that there would be a justification for

22 an extension of one week.

23 Any other issues?

24 MR. LONDROVIC: [Interpretation] Your Honour, I would seek

25 clarification on one point. If I understood you correctly, you said that

Page 199

1 by the 31st of March, the Prosecution would submit a final list of their

2 witnesses. When we receive this list, we shall know what witnesses there

3 will be and what we should do in this respect, having in mind the 30-day

4 time limit as a guideline.

5 Am I correct in saying that after this list is submitted there

6 will be no further potential witnesses of the OTP?

7 JUDGE SCHOMBURG: I think we have already redacted the word

8 "potential" witnesses and we called it now "proposed" witnesses. No doubt

9 that at any point in time both parties can request, if it's in the

10 interest of justice, to amend the witness list or to replace the one or

11 other witness for unforeseen reasons not available. This is, of course,

12 true for both parties.

13 I can't see any other requests.

14 MS. SINATRA: Your Honour, I'm sorry. I have one request, if you

15 don't mind.


17 MS. SINATRA: On the Prosecution's notice of compliant with Rule

18 66(A)(ii) under their disclosure obligations, paragraph 6 talks about the

19 fact that they intend to update the expert witnesses from the Krstic

20 trial. I just want a clarification on when we have the deadline for these

21 updated expert witness reports, because it wouldn't fit under the same

22 ruling that the court just gave for the five maximum, minimum two-day

23 notice for the witnesses and we really need to be prepared for the updated

24 version which would be the relevant part to the Zvornik Brigade, I would

25 imagine, as soon as possible. Could we possibly have a deadline for the

Page 200

1 updated expert witness reports?


3 MR. McCLOSKEY: Mr. President, there -- that fits into roughly two

4 categories as I recollect. We have some forensic reports that we're

5 waiting on, archaeologists to go through autopsy reports and some things

6 that's taken, unfortunately, a long time. And I hope -- we continue to

7 put pressure on these folks to get us that material, though I don't think

8 these are going to be hotly contested issues, and I will check with the

9 team to find out how we're doing on those particular forensic reports.

10 We have obtained recently a few new documents, and Mr. Butler is

11 our analyst, as you know, and we would like him to comment on some of

12 these new documents, especially so that it is not a surprise to anyone.

13 And as you know, documents tend to come in at different times.

14 Right now, there's a very small amount of material that I hope can

15 come out in perhaps a two or three-page addendum, but -- and I would hope

16 we could get that done in about three weeks, the material I know about

17 now, and having a deadline for that wouldn't be a problem.

18 JUDGE SCHOMBURG: So I think the Christian Easter is an

19 appropriate date. The parties could use these holidays for reading the

20 additional information. So would it be appropriate to give a time limit

21 of the 17th of April also in this case?

22 MR. McCLOSKEY: That would be fine, Mr. President.

23 JUDGE SCHOMBURG: You can live with this?

24 MS. SINATRA: Thank you, Mr. President.

25 JUDGE SCHOMBURG: Thank you. So there is no misunderstanding,

Page 201

1 immediately after this hearing, we will have in closed session, as

2 requested by Mr. Blagojevic, an additional conference. For this reason, I

3 declare this Status Conference for today closed. I want -- do not want to

4 hesitate to invite all the parties to address the Chamber also directly if

5 need may be in case of urgency that we can resolve all sudden problems

6 immediately, that the start of the case envisaged for the 5th of May is

7 not endangered. We are all aware of the time constraints. Therefore,

8 please feel free even to contact us immediately.

9 This concludes today's Status Conference. I hope we will meet the

10 5th of May in good spirit and in good health.

11 There will now be a short break of ten minutes, and then we'll

12 proceed with the -- on the request of Mr. Blagojevic together with the

13 team, the Defence team for Mr. Blagojevic in closed session.

14 --- Whereupon the Status Conference adjourned at

15 6.15 p.m.