Tribunal Criminal Tribunal for the Former Yugoslavia

Page 264

1 Thursday, 12 April 2007

2 [Pre-Trial Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.03 a.m.

6 JUDGE PARKER: [Microphone not activated].

7 THE REGISTRAR: Your Honours, this is case number IT-04-82-PT,

8 the Prosecutor versus Ljube Boskoski and Johan Tarculovski.

9 JUDGE PARKER: [Microphone not activated].

10 MR. SAXON: Yes, Your Honour. I'm Dan Saxon, together with my

11 colleagues Ms. Joanne Motoike, Ms. Meritxell Regue, Mr. Matthias Neuner,

12 and our case manager, Ms. Lakshima Walpita.

13 JUDGE PARKER: Thank you.

14 Ms. Residovic.

15 MS. RESIDOVIC: [Interpretation] Good morning, Your Honour.

16 Appearing for Mr. Ljube Boskoski, Edina Residovic, attorney-at-law;

17 Guenal Mettraux, co-counsel; and Jesenka Residovic, case manager.

18 JUDGE PARKER: Thank you.

19 Mr. Apostolski.

20 MR. APOSTOLSKI: [Interpretation] Good morning, Your Honour. For

21 Mr. Johan Tarculovski, Antonio Apostolski; Jasmina Zivkovic, co-attorney;

22 Marija Sandeva, case assistant; and Jordan Apostolski, case manager.

23 JUDGE PARKER: Thank you very much.

24 I'll just inquire now whether each accused are able to receive

25 the proceedings in a language they are understanding.

Page 265

1 First Mr. Boskoski.

2 THE ACCUSED BOSKOSKI: [Interpretation] We are able to hear, Your

3 Honour.

4 JUDGE PARKER: Thank you.

5 You are hearing as well, Mr. Tarculovski?

6 THE ACCUSED TARCULOVSKI: [Interpretation] I hear it as well, Your

7 Honour.

8 JUDGE PARKER: Thank you very much.

9 Now, of course the purpose of this hearing is the -- what's

10 programmed to be the final pre-trial conference before we commence the

11 hearing on Monday of next week; that is, the hearing of the trial of this

12 case. This Trial Chamber, as you are aware, has now been finally and

13 formally assigned to conduct the trial. As counsel should by now be

14 aware, we must finish this conference in the course of this morning. So

15 counsel are encouraged to be extremely succinct in any submissions that

16 they make.

17 Could I mention that the Chamber is aware of and has before it a

18 number of, on the most part, very recent motions that have yet to be the

19 subject of formal decision. For the Prosecution, we have four motions.

20 Two filed on last Tuesday. There's been no opportunity yet for either

21 Defence to respond to those. One which was filed a little earlier, and

22 one accused has responded on Tuesday of this week and not the other. The

23 fourth is to do with the last of the seven 92 bis/92 ter motions, which

24 is ready for delivery, but we understand that one Defence team has

25 something further that they wish to advance about it. So we are poised

Page 266

1 waiting to see what that might be before the decision is delivered.

2 For the two Defence teams, there are altogether now nine motions;

3 five of them for the Boskoski Defence, which are ex parte. They were all

4 filed in the course of this last month. The decisions in them will all

5 be delivered in the course of next week.

6 There is a motion by the Boskoski Defence for leave to file late

7 submissions. There is one challenge to the Prosecution expert evidence,

8 and there is an indication again from the Boskoski Defence that they

9 propose or wish to seek leave to file something further in respect of

10 that.

11 There is then a further Boskoski Defence motion to stop the

12 Prosecution's process of investigation and disclosure. It was filed last

13 week. The Prosecution replied on Tuesday. The Chamber has given some

14 preliminary consideration to it but is not in a position to publish its

15 final written decision. We would indicate at this stage that the motion

16 will not succeed. The formal decision will be delivered in writing in

17 the course of next week.

18 There remains a joint motion to delay the start of the

19 Prosecution evidence, which was filed within the last week. The

20 Prosecution's reply was received late yesterday. We will, no doubt,

21 discuss further the implications of that motion in the course of this

22 hearing.

23 Now, that was a quick summary of the motions that the Chamber

24 has. It will be apparent from what we have said that there really is -

25 to borrow the language of one of the submissions before us - a flurry of

Page 267

1 last-minute activity by, in particular, two of the three teams. Some of

2 that is a little disquieting. It suggests that Prosecution -- that

3 preparation is not as advanced as it ought to be for at least two of the

4 teams. That leaves Mr. Apostolski sitting rather serene there, but

5 perhaps it is that he's just got his trial counsel. We may hear more of

6 him in the very near -- his assisting counsel. We may hear a lot more

7 from him in the near future. I'm not encouraging you, Mr. Apostolski.

8 Having dealt with those motions in that brief way, I think it's

9 best to stay with them and try and put them aside.

10 Mr. Saxon, is there any one of your motions about -- that are

11 outstanding about which you wish to put anything very briefly to us that

12 isn't included in the written submissions we have?

13 MR. SAXON: No, Your Honour.

14 JUDGE PARKER: Thank you, Mr. Saxon.

15 Now, Ms. Residovic, is there anything concerning any of your

16 outstanding motions about which you want to put any further brief

17 submissions to the Chamber?

18 MS. RESIDOVIC: [Interpretation] Your Honours, my colleague,

19 co-counsel, will just briefly inform you of our indication that we are

20 about to submit a motion related to Prosecution's expert witnesses.

21 Thank you.

22 JUDGE PARKER: Thank you.

23 Mr. Mettraux.

24 MR. METTRAUX: Yes. Good morning, Your Honours. Simply to give

25 you or to confirm the indication which we gave yesterday in our response

Page 268

1 to the Prosecution application to amend the statement or the report of

2 Mr. Bezruchenko. As we indicated in our filing, we will file in the

3 coming days further submissions as regards the admission of the reports

4 of both Mr. Bezruchenko and Mr. Burgess, two of the Prosecution proposed

5 experts. We will seek to do so as early as possible and hopefully by the

6 middle of next week.

7 JUDGE PARKER: You realise that, I believe, at least one of them

8 is listed in the first group of Prosecution witnesses.

9 Am I right there, Mr. Saxon?

10 MR. SAXON: Respectfully, I believe you are not right, Your

11 Honour. We are --

12 JUDGE PARKER: Splendid. Okay. I was foreseeing a problem that

13 doesn't exist. Thank you.

14 Yes, Mr. Mettraux.

15 MR. METTRAUX: That would be all.

16 JUDGE PARKER: You were just telling us about that?

17 MR. METTRAUX: Yes, absolutely. We wanted to give an indication

18 to the Prosecution as well so they could make any preparation that would

19 be necessary. We will try to file that at the earliest possible time and

20 hopefully by the middle of next week.

21 JUDGE PARKER: You realise, A, you will need to seek leave to do

22 that because you're well out of time for doing it; and, B, we have

23 decisions ready. So you're asking us to take on board something entirely

24 new and reconsider our decision; is that what you'll be doing?

25 MR. METTRAUX: Well, we'll do our best to make it simpler rather

Page 269

1 than more complicated for Your Honour, but, yes, we will seek leave to do

2 so.

3 JUDGE PARKER: And may we ask, are you challenging the

4 conclusions or the qualifications?

5 MR. METTRAUX: Well, at this stage --

6 JUDGE PARKER: Or what is the -- about the expert?

7 MR. METTRAUX: Well, at this stage, the challenge will

8 essentially be to the expert's nature of the proposed evidence as well as

9 to the requirements of independence on the part of the proposed expert,

10 at least one of them. So for the time being, the challenge will be

11 essentially on those two points.

12 JUDGE PARKER: Thank you very much.

13 So no other of the submission -- the motions of the Boskoski

14 Defence require any further submissions at this point?

15 MS. RESIDOVIC: [Interpretation] No, Your Honour. Thank you.

16 JUDGE PARKER: Mr. Apostolski, is there any matter that you wish

17 to put about any of the outstanding motions?

18 MR. APOSTOLSKI: [Interpretation] I have nothing to add with

19 regards to outstanding motions.

20 JUDGE PARKER: Thank you.

21 Well, in summary from all of that, as long as we receive the

22 proposed additional Defence material by the middle of next week, which is

23 Wednesday, we will consider whether or not leave should be granted to

24 receive that further material; and in light of that decision, deal with

25 the motion dealing with the expert witnesses. Otherwise, the Chamber

Page 270

1 will proceed now to finalise and publish its decisions in respect of all

2 of the other outstanding motions.

3 Now, that, Mr. Saxon, brings us logically to a review of how you

4 see your case, firstly, with respect to number of witnesses; and

5 secondly, the number of exhibits; and thirdly, the time-frame.

6 MR. SAXON: Your Honour, as you know, the Prosecution recently

7 submitted a motion which requested partly leave to remove three witnesses

8 from its witness list. That motion is now pending.


10 MR. SAXON: Of course, the Chamber also very recently provide --

11 granted leave to the Prosecution to add two witnesses to its list. As

12 counsel for the Defence will attest, mathematics is not my -- my strong

13 point. I don't want to give you a quick figure right now as to the

14 number of witnesses. What I had done last night was actually calculate

15 time. I had calculated hours in terms of the expected length of the

16 Prosecution's case. If you would indulge me, I'd like to --

17 JUDGE PARKER: You would like us to be content with time, would

18 you?

19 MR. SAXON: Perhaps for the moment, Your Honour.


21 MR. SAXON: Because what I did is I looked at the recent

22 decisions of the Trial Chamber regarding the Prosecution's motions

23 related to the admission of written evidence pursuant to 92 bis and

24 92 ter. And as you know, of course, the Trial Chamber partially granted

25 some of those motions, but what that meant is an additional amount of

Page 271

1 time will be necessary to present the Prosecution's case.

2 In June of last year, when the Prosecution submitted its last

3 motion or revised 92 bis motion, the Prosecution submitted to the Chamber

4 that the Prosecution's case would take approximately seven court weeks if

5 all of these motions were granted.

6 Now, with the decisions that were issued last week, there will be

7 43, 92 bis or 92 ter witnesses who must come for cross-examination, and

8 that will add approximately 64 and a half hours to the Prosecution's

9 case. Plus, there are four witnesses for which the Prosecution had

10 sought permission to submit their evidence in writing, but for whom the

11 Chamber would like to hear viva voce. And in the Prosecution's

12 estimation, that will add an additional 12 hours to the Prosecution's

13 case, for a total of 76 and one-half additional hours.

14 However, when I factored in the witnesses for whom we believe

15 will be removed from the list, with the leave of the Chamber, and the two

16 witnesses for whom the Chamber has recently granted leave to add to our

17 list, it's my calculation that the length of the Prosecution's case will

18 increase now by an additional 75 hours, which, if you use 3.75 hours as a

19 measure of a court day, that works out to 20 court days additional, which

20 would be an additional four more weeks of court time. And that means,

21 Your Honour, that by my calculations, rough as they may be, the

22 Prosecution's case in chief would last for approximately 11 weeks in

23 total.

24 JUDGE PARKER: Now, thank you for that, Mr. Saxon. Can we

25 inquire a little about your estimate of time for cross-examination. Now,

Page 272

1 has that been done? Because that's a notoriously difficult exercise, and

2 the result is often wildly unreliable.

3 MR. SAXON: In the Prosecution's calculations, Your Honour, we

4 included the estimated time for cross-examination as well. For example,

5 with an additional viva voce witness for whom I estimated three hours of

6 testimony, that was an hour and a half of direct examination and an hour

7 and a half of cross-examination. That was our estimate.

8 JUDGE PARKER: So you've equalled time for examination and

9 cross-examination?

10 MR. SAXON: That's how we did our calculation --


12 MR. SAXON: I'm sorry, that's how the Prosecution did its

13 calculations, yes, Your Honour.

14 May I say, Your Honour, as you noted earlier, there is still one

15 motion outstanding related to the use of written evidence, and of course

16 that could alter these calculations a bit depending on the decision of

17 the Chamber.

18 JUDGE PARKER: So you've not made any calculations based on some

19 guess as to the outcome of that?

20 MR. SAXON: No, Your Honour.

21 [Trial Chamber confers]

22 JUDGE PARKER: Thank you for that, Mr. Saxon.

23 Could I turn now, Mr. Saxon, to that old subject of disclosure,

24 just to inquire whether Rule 66 remains completed and translations

25 complete and to inquire where we are with Rule 68.

Page 273

1 MR. SAXON: Your Honour, with respect to Rule 68, as you know,

2 searches are ongoing and we are continuing on an updated basis to review

3 material and to disclose any material that we find -- that we deem to

4 fall within Rule 68.

5 With regard to Rule 66(B), Your Honour, we continue to review our

6 collections, the items in our possession. And just last night, I want

7 you to know that we disclosed some additional material under Rule 66(B).

8 With respect to Rule 66(A)(ii), we are up-to-date, Your Honour.

9 A number of translations have come in recently and have been disclosed to

10 the Defence. It's my understanding that every translation that we have

11 received to date we have disclosed. We are still waiting for some

12 translations from CLSS.

13 JUDGE PARKER: Can you say how many of those are outstanding?

14 MR. SAXON: Your Honour, I hesitate to give you an exact figure.

15 I'm told it is -- it is not a lot of material, but -- pardon me, Your

16 Honour.

17 [Prosecution counsel confer]

18 MR. SAXON: Can we come back to that later, Your Honour?

19 JUDGE PARKER: Thank you.

20 MR. SAXON: If I may, Your Honour, all exhibits that require --

21 are required to be translated into the language of the accused, all

22 proposed exhibits, have been translated and disclosed. The only thing we

23 are waiting on now are some English translations of items that were not

24 originally in English.

25 JUDGE PARKER: Thank you. And you'll give us an estimate of the

Page 274

1 number of that in the course of this morning.

2 Now, Mr. Saxon, there were a number of matters which you

3 indicated you would like to raise in the course of this morning. Would

4 you like to deal with each of those in turn?

5 MR. SAXON: Your Honour, one matter the Prosecution would like to

6 raise is the question of when the parties should alert the other party to

7 the materials they intend to use, either in direct examination or in

8 cross-examination. I had sent a letter previously to counsel for the

9 Defence, suggesting that for this trial we initiate a procedure whereby

10 the Prosecution, during the Prosecution phase, would alert the Defence at

11 least two days before the start of direct examination, of which exhibits

12 it intended to use during the direct examination of that particular

13 witness. And I suggested also that the Defence also agree to alert the

14 Prosecution at least two days in advance of which materials it intends to

15 use during the cross-examination of the same witness. And if such

16 materials are not in the possession of the Defence, if they could be

17 provided.

18 We haven't -- the Prosecution has not received a response to its

19 letter. Since then I've done a bit of research. I know, for example, in

20 the Mrksic trial, I believe there was a rule whereby the parties had a

21 one-day deadline, a 24-hour deadline, before the start of witness

22 testimony to exchange this information. I know that in other

23 Trial Chambers, it's a much tighter deadline. This information is

24 exchanged actually at the start of -- well, materials to be used during

25 cross-examination, that information is provided to the Prosecution right

Page 275

1 at the start of direct examination or at the close of direct examination.

2 The Prosecution recommends a slightly larger window of perhaps of at

3 least one day for the exchange of this information.

4 JUDGE PARKER: The experience of the Chamber in its trials led us

5 to try in the Mrksic trial with one day, and that didn't work as well as

6 it should have in practice because there was a lot of last-minute

7 difficulty always over documents. So from the point of view of the

8 smooth running of the trial, 48 hours, that is two days, is much more

9 practical.

10 MR. SAXON: The Prosecution would certainly be in accord with

11 that suggestion, Your Honour; in fact, that was the Prosecution's

12 original suggestion to the Defence.

13 JUDGE PARKER: That is where we were with earlier trials. I'll

14 hear other submissions on that matter, Mr. Saxon.

15 Ms. Residovic or Mr. Mettraux.

16 MS. RESIDOVIC: [Interpretation] Your Honours, my colleague,

17 Mr. Mettraux, will respond.

18 MR. METTRAUX: Yes, good morning, Your Honour. We would like to

19 make further submission in relation to this issue. We've also reviewed

20 the procedure before the Tribunal, the practice of various

21 Trial Chambers, and indeed Mr. Saxon has relied upon Your Honour's ruling

22 in the Mrksic case, where you have ordered the parties to disclose the

23 material to be used in cross-examination 24 in advance of the beginning

24 of the evidence.

25 The Mrksic decision seems to be quite a solitary decision in that

Page 276

1 regard, if I may say so. In the Milutinovic, Popovic, and

2 Dragomir Milosevic case, the Trial Chambers have ordered that the

3 material be disclosed to the Prosecution at the commencement of the

4 examination-in-chief.

5 In the Babic, Matic, and Prlic case, they've asked the Defence to

6 disclose that material before the start of the cross-examination.

7 In the Halilovic case, the Trial Chamber repeatedly refused to

8 impose any obligation regarding disclosure of cross-examination material

9 upon the Defence. The reason for the Trial Chamber to do so, if I may,

10 was that the Rules themselves do not provide for any obligation upon the

11 Defence in that regard. More fundamentally, however, is the principle of

12 effectiveness of the right to confrontation. The Defence is very

13 concerned that if it has to disclose material which may, for instance, go

14 to the credit of a witness, the effectiveness of the right to

15 confrontation may be undermined.

16 There may also be a situation where the rights against

17 self-incrimination may be at stake, if, for instance, the Defence has not

18 been able to make a final determination as to whether it intends to use

19 material in cross-examination or not, and often enough this determination

20 may only be made after the end of the examination-in-chief.

21 The concern of the Defence is also one which relates to the

22 nature of the system before this Tribunal. In a civil law system, Your

23 Honour, the investigation would be led by an investigative judge and not

24 by a party. Furthermore, the practice before this Tribunal of proofing

25 does not exist in most civil law system or any -- that I know in any

Page 277

1 case. Our concern is that material which could be critical to the

2 establishment of truth and the ascertainment of truth with a witness

3 could and would probably be put to the witness during a proofing session,

4 which may contribute to perhaps a lesser degree of truth being revealed

5 during the cross-examination.

6 The practice, as mentioned above, has seemed to go back to an

7 obligation on the part of the parties to disclose that material prior

8 to the -- shortly after the commencement of the examination-in-chief.

9 For example, in the Milutinovic and Prlic case, the Trial Chambers had

10 granted orders of the sort which Your Honour has granted in the Mrksic

11 case, and later on in the trial have come back upon this practice to

12 impose a new rule whereby the Defence should disclose that material

13 shortly after the commencement of the examination-in-chief.

14 The Defence believe that this practice would better protect the

15 fundamental rights of the accused. We would be happy to obviously comply

16 with that practice if that's acceptable to Your Honour. But as I

17 mentioned earlier, one type of material which is of particular

18 sensitivity in that regard would be any sort of material which would go

19 to the credit of the witness. Obviously, if a witness such as an expert

20 is coming, there may be good reason why the parties could agree to give

21 earlier notice to the other side if we intend to use a large amount of

22 material or regulations. I think this is a matter that can be dealt with

23 directly between the parties to find an agreeable solution.

24 JUDGE PARKER: Could I mention, Mr. Mettraux, that one of the

25 problems of what you are proposing, looking at it from the point of view

Page 278

1 of the Rules, which are essentially adversarial and not inquisitorial,

2 that is not civil system, you are getting down to an absolute trial by

3 ambush, if you understand that terminology. The consequence of that when

4 you cross-examine on something that is not known to the Prosecution or

5 the witness or not foreseen, is that there usually needs to be an

6 adjournment before re-examination to enable that matter to be

7 investigated and looked at, and the result then is, A, a lengthening of

8 the trial; B, the loss of momentum of hearing the evidence of the witness

9 because the witness has to be held for a day or two, or a week or two

10 while a matter is investigated. And the consequence of all of that

11 adversely affects the flow of the trial.

12 You mentioned that these are matters that are of confidence, but

13 of course you realise that under Rule 65 ter (F) there are obligations

14 about disclosure on the Defence which occur pre-trial, which are

15 generally not observed and which we are not insisting on observance. So

16 that the disclosure of documents a little before may involve a momentary

17 revealing to the Prosecution at the last moment of some matters, but do

18 not go as extensively as the Rules might contemplate over some other

19 matters.

20 The further observation I would make is that this practice was

21 followed in the Mrksic trial, three accused, very experienced Defence

22 counsel, and never once was it suggested that it interfered in their

23 presentation of their case or had an effect adversely to the rights of

24 their clients. We were watching that carefully. We were thinking even

25 of moving it to 48 hours, but the problem that you foresee, the

Page 279

1 fundamental intrusion into the rights, was not experienced by the very

2 experienced Defence counsel and their clients in that case.

3 I think part of your concern may stem from your familiarity with

4 a civil law system trial, which is so very different, about the

5 information that is known to the Bench and available to the parties from

6 that in an adversarial trial.

7 Now, I mention those matters in case there's something further

8 you would like to put about any of them.

9 MR. METTRAUX: Well, very, very shortly, Your Honour. I think

10 the issue of intrusion is one that would not apply to each and every

11 witness. As I mentioned earlier, there would be witnesses, that's the

12 experts, in relation to which there should be no issue of concern in that

13 regard. We believe, however, that there are a number of witnesses which

14 are going to be presented by the Prosecution in relation to which the

15 Defence would be very concerned to have to disclose the material in

16 advance of the person giving his evidence, in particular if the witness

17 is proofed after the Defence has disclosed that material to the

18 Defence [sic].

19 In relation to ambush, Your Honour, I understand the expression.

20 The Defence may say that this is certainly not the intention of the

21 Defence of Mr. Boskoski to ambush the Prosecution, and as we mentioned

22 earlier we will seek to cooperate and collaborate with the Prosecution in

23 relation to those matters as much as we can. The experience that I've

24 had from the Halilovic case is there has been absolutely no delay in

25 relation to any of the witnesses in relation to this matter, and to the

Page 280

1 extent that we can cooperate again with the Prosecution in that regard,

2 we would be happy to do this. Many of the documents which the Defence

3 would seek to use are also Prosecution exhibits. To that extent, there

4 should be no issue in relation to those documents.

5 As I mentioned earlier, I think that the issue is really related

6 to a small group of Prosecution-proposed witnesses. To the extent that

7 the Chamber would be willing to grant some sort of flexibility to the

8 Defence, for instance, by seeking leave in relation to particular

9 witnesses or to trust that the parties will seek to collaborate in that

10 matter, and if problems arise in the course of the trial at this stage

11 perhaps it would be more appropriate for the Trial Chamber to give that

12 sort of order. But at this stage, it is our submission that it's a bit

13 early to impose that obligation upon the Defence.

14 JUDGE PARKER: Thank you.

15 Mr. Apostolski, is there any submission you would like to make in

16 addition to what we have heard?

17 MR. APOSTOLSKI: [Interpretation] I completely support the

18 presentation of my colleague, Your Honour, and I thereby think that in

19 respect to the direct hearings, that the 24-hour deadline is sufficient

20 for submission of the written documents, while for the cross-examination

21 I think that the written documents could be submitted immediately before

22 the cross-examination.

23 Thank you, Your Honour.

24 JUDGE PARKER: Thank you.

25 [Trial Chamber confers]

Page 281

1 JUDGE PARKER: In the view of the Chamber, the position should be

2 that the -- during the Prosecution case, the Defence will give to the

3 court registry officer 48 hours' notice of all documents they want taken

4 out of their private electronic file so that they are available when

5 called on the electronic system. Now, that is not disclosure to the

6 Prosecution or to the other Defence party; it's merely enabling the

7 registry to ensure that the documents are ready and can be brought up on

8 the electronic screen as needed by the parties.

9 For expert Prosecution witnesses, the Defence should give 48

10 hours' notice to the Prosecution of the documents each Defence intends to

11 use during cross-examination of that expert.

12 For other witnesses, the normal position will be that the Defence

13 should give 24 hours' notice to the Prosecution of the document it

14 intends to use. But there will be a proviso that the Defence may within

15 that 24-hour time, that is no later than 24 hours, give notice in writing

16 to the Prosecution and to the registry and to the Chamber's court officer

17 that it is withholding documents going to the credit of that witness.

18 We will proceed on the basis experimentally that that is not

19 abused. If that concession is abused, we will review the position, but

20 where a Defence has a document it feels is material and which it feels

21 could be -- its effect could be compromised by a disclosure 24 hours

22 before, as long as notice is given that documents are being withheld, the

23 Chamber will allow that to occur, and those documents should then be

24 disclosed as the evidence-in-chief of the witness commences. I think by

25 this measure we will try to meet the difficulties concerning Mr. Mettraux

Page 282

1 and Mr. Apostolski, whilst at the same time trying to ensure a reasonably

2 smooth flow of the case.

3 It's, as I emphasise, experimental. If it's being overused, we

4 will have to reconsider the concession. And if it is the case that the

5 Prosecution is significantly embarrassed by lack of notice about a

6 document, we may have to consider some adjournment of the re-examination

7 of that witness. But otherwise, we think those orders may meet the

8 various practical and professional needs of the various parties and of

9 the Court.

10 Could I also mention -- is there something, Mr. Saxon, you want

11 to raise about that?

12 MR. SAXON: I apologise, Your Honour. I didn't hear in your

13 directive a requirement for the Prosecution, a temporal requirement for

14 the Prosecution, to provide notice to the Defence of exhibits it will use

15 in its direct examination. And I just wanted to alert you to that.

16 JUDGE PARKER: I'm just turning to that, Mr. Saxon. You're

17 anticipating me. Thank you.

18 Now, during each week of evidence, that is if the Chamber isn't

19 sitting during a week this can be ignored, but when evidence is being

20 given during a week, as will normally be the case, the Prosecution is to

21 notify the Defence teams and the Chamber and the court officer of the

22 witnesses it intends to call during the following two weeks. So always

23 we are two weeks ahead. And in that notice for each witness should be an

24 estimate of the time that the Prosecution anticipates for examination and

25 cross-examination, so that the Chamber can maintain a watch over the

Page 283

1 timely progress of the evidence of each witness.

2 The Prosecution should then 48 hours before a witness is called

3 give notice to each Defence team and the court registry officer of the

4 documents it intends to use during the evidence of each of its witnesses.

5 We would only add that each team of counsel should be aware of the need

6 to provide the documents it intends to use during the case to the

7 registry in electronic form well before the witness is to be called, so

8 that they can be included in the electronic court system in an orderly

9 and proper way.

10 Now, when they're brought into the system, they're first of all

11 included in the confidential private file of the party, so they're not

12 disclosed to others, but they are then loaded into the system in good

13 time. The advance notice of the documents which we've mentioned, 48

14 hours for some, 24 hours for others, and at the time of commencement of

15 the evidence for a few, is the time when each party authorises the

16 release of that document from the confidential private file so that it

17 then becomes available to the other parties. I hope you all understand

18 that. Now, cooperation by all parties in this is very important for the

19 smooth flow of the trial.

20 The Chamber is well aware that genuine unexpected situations do

21 arise. I'll call them emergencies. When it has not been foreseen that a

22 document will be used, something occurs during the evidence of the

23 witness and a document is then thought to be necessary. The Chamber will

24 watch to ensure that there are genuine emergency situations. If they do

25 occur, either during examination or cross-examination, the court registry

Page 284

1 officer can't include that document in the electronic system. So what

2 has to happen is the party will need to have a -- hard copies of the

3 document for use for that witness. You may find if the emergency is

4 noticed 24 hours before and it's not in the electronic system, the court

5 officer may be able to include it; but if not, it will be necessary for

6 hard copies of those documents to be available. They'll be needed, one

7 for each of the three Judges; the court registry officer; the court

8 Chamber's officer; the witness; other parties; and interpreters. Given

9 that we have five languages, all told they'll need, I think, to be 14

10 copies of any document that isn't in the electronic system.

11 Some documents, such as large detailed maps and charts, are not

12 suitable for use in the e-court system. There is simply too much

13 information on them for them to be able to be viewed reasonably. With

14 such documents, you'll need to have hard copies available so that they

15 can be used during the trial.

16 There are some documents which counsel will anticipate to be very

17 important and which you may want also to have a hard copy available so --

18 in particular, so that the Judges may make notes on those documents and

19 deal with them in a more hands-on user way than is possible even with the

20 electronic noting system of the e-court. And we have found in a number

21 of trials that counsel quickly get a feel for the sort of document they

22 would like the Judges to have in hard copy, as well as electronic form.

23 We would also mention that as we are using more than one

24 language, the document can only be displayed on the screen in one

25 language, and you may well find that you will need for important

Page 285

1 documents to have hard copies in English for the Chamber and perhaps for

2 the other parties, if the document, for example, is being displayed in

3 Macedonian so that the two accused can follow it. So please keep those

4 matters in mind as you prepare during the case.

5 Now, what we have indicated applies during the Prosecution case

6 for the times. The same will apply, but in reverse, during the case of

7 each accused, so that we will appreciate that all parties will be dealt

8 with on an equal basis in this matter. So the time-limits presently

9 placed on the Defence for their cross-examination will, when the

10 Prosecution has finished its case and the Defence case is proceeding,

11 those times will apply to the Prosecution for their cross-examination and

12 so forth.

13 [Trial Chamber confers]

14 JUDGE PARKER: Well, I hope that's given sufficient guidance

15 about practical matters in the handling of exhibits and documents and

16 notice to the other party to enable the trial to get underway smoothly.

17 Now, Mr. Saxon, there were further matters?

18 MR. SAXON: [Microphone not activated].

19 Thank you.

20 Briefly, one statistic that you asked for a few moments ago. At

21 this time, given recent decisions about adding and removing witnesses

22 from the Prosecution's witness list, the Prosecution expects to receive

23 the evidence of 96 witnesses in total, in different form, written, viva

24 voce, and expert, et cetera. The total number is 96.

25 JUDGE PARKER: That's your anticipated number of witnesses?

Page 286

1 MR. SAXON: That is correct, Your Honour.

2 Your Honour, briefly --

3 JUDGE PARKER: I can only say you're ambitious with 11 weeks.

4 MR. SAXON: The Prosecution is optimistic, Your Honour. We will

5 do the best we can.

6 JUDGE PARKER: You'll find the Chamber can be even more

7 optimistic and a fairly determined task-master --

8 MR. SAXON: The Prosecution --

9 JUDGE PARKER: If time is not being used efficiently, the Chamber

10 will be fairly quick to get counsel to move on to something that matters

11 rather than spending time on side matters. Just be on notice of that.

12 Clearly, everyone will be aware that it is in the interests of everybody,

13 especially the two accused, for the trial to be completed as quickly as

14 possible, consistently with giving all parties a fair opportunity to

15 present their case. We don't want to just waste time unnecessarily. So

16 we'll be watching that throughout the hearing.

17 Mr. Saxon.

18 MR. SAXON: Your Honour, an additional matter that the

19 Prosecution wanted to raise this morning deals with the amalgamated, or

20 if I may use the term consolidated 92 ter witness statement that the

21 Trial Chamber has asked the Prosecution to prepare for those witnesses

22 who will be testifying before the Chamber under Rule 92 ter and for whom

23 there is -- there is more than one prior ICTY statement.

24 The Chamber directed the Prosecution that for such witnesses, in

25 order to increase clarity and efficiency and avoid confusion, the

Page 287

1 Prosecution should create a consolidated statement of the prior

2 statements for the purposes of submitting that consolidated statement

3 under Rule 92 ter. And the Prosecution is -- has already commenced that

4 effort, indeed I believe there are two witnesses scheduled to testify

5 next week who fall into this category.

6 The Prosecution, with leave of the Chamber, pursuant to any

7 comments Defence counsel may make, intends to do the following: We will

8 create these consolidated statements. Obviously, the prior statements

9 have already been translated and disclosed in a language that the accused

10 understands, so that material has been available to the Defence for quite

11 some time now. But after we create a consolidated statement and a

12 witness arrives here in The Hague, we will then read that consolidated

13 statement - in most cases using an Albanian-speaking interpreter - we

14 will read that consolidated statement to the witness prior to the witness

15 coming into the courtroom, to give the witness an opportunity to say,

16 There's a mistake there or I have something to add, something is wrong

17 that needs to be corrected.

18 We would then record any such information and attempt to

19 immediately translate that new information, be it an addendum, some

20 additional information, a correction, and attempt to translate it into

21 the language of the accused before the witness begins to testify so that

22 the rights of the Defence under Rule 66(A)(ii) are also respected. That

23 is what the Prosecution proposes to do, and we wanted to alert the Trial

24 Chamber and the Defence of what the Prosecution proposes and plans to do

25 to see if there are any comments or concerns.

Page 288

1 JUDGE PARKER: Mr. Saxon, there seem to be two matters that are

2 distinct which you have put together as one. The first is the

3 consolidation. The -- many of the statements where there were two and,

4 at times, even three from the one witness which you sought to have

5 admitted pursuant to 92 bis, as those statements were looked at quite --

6 sections of them were simply repetitive and the Chamber sought a

7 consolidation that removed any repetition. So there would be one single

8 statement. As we now have the advantage of Rule 92 ter, that new

9 statement didn't require the formalities of signature and witnessing that

10 were required for the old 92 bis. It merely brought several documents

11 into one, so that all parties would find it easier to follow, and that

12 would become the statement the witness in court identified and confirmed

13 represented their account of the truth.

14 Now, that should not contain information which differs from the

15 information in their 92 bis statements; it's merely getting rid of

16 repetition and bringing into one document the contents of two or three

17 other documents. That's one matter.

18 The second matter is when a witness after a lapse of weeks,

19 months, or even years comes here and is asked to look again at a

20 statement they have made, in this case usually a 92 bis statement, and

21 there will be times when a witness says, Oh, there's something here that

22 isn't quite what I meant or there's something that should be added here.

23 Now, that's new and additional material. It will occur whether we were

24 using 92 bis statements in the original form or a consolidated 92 ter

25 statement, because it's something that just isn't in the earlier

Page 289

1 statement of the witness or which changes something that's in there.

2 Now, that's a process not affected by this consolidation order;

3 it's a process which does require, as you say, quick notice to the other

4 side of the change so that they can be aware of it before the witness

5 commences their evidence.

6 One of the practical problems that I think most Trial Chambers

7 encounter with this is that so often the witness arrives very, very

8 shortly before giving evidence, that changes are identified at the last

9 moment, and virtually as the witness arrives in court notice is given to

10 the Defence. That is not desirable. There may be an occasion when it's

11 unavoidable, but if the witness were able to see the statement even a day

12 earlier, it would obviate that last-minute notification.

13 So we leave that in your hands to try and achieve timely notice

14 to the Defence of any change in the statement the witness wishes to make

15 or any additional information the witness wants to include in the

16 statement.

17 MR. SAXON: That's clear, Your Honour. Thank you.

18 JUDGE PARKER: Is there anything either Defence counsel would

19 wish to add about that? I see an indication of nothing new.

20 Yes, Mr. Saxon.

21 MR. SAXON: Your Honour, the Prosecution has created two visual

22 aids, and the Prosecution has provided them to counsel for the accused

23 for their review. And I'd like to take a few minutes and show them to

24 the Trial Chamber, and perhaps hear the views of counsel on them.

25 The first visual aid I will describe as the Ljuboten panorama and

Page 290

1 with the assistance of our case manager, we will try to show you this aid

2 on our -- on the computer system that's in front of you. The purpose of

3 creating this visual aid was to try to assist not just the Prosecution

4 but the Chamber and the Defence as well as witnesses in being able to see

5 and understand the geographical area in and around the village of

6 Ljuboten, and in particular, particular spots where events were alleged

7 to have occurred.

8 JUDGE PARKER: So far we don't appear to have anything on our

9 screen, Mr. Saxon.

10 MR. SAXON: It takes a minute to come up with this particular

11 software programme, Your Honour. Can you see a map now on your screen?


13 MR. SAXON: Okay. How about now?

14 JUDGE PARKER: Yes, we're getting them up now.

15 Are Defence counsel receiving them? Thank you.

16 MR. SAXON: This panoramic begins with, obviously, the map of

17 Macedonia. You can see Skopje there at the -- towards the top.

18 Can we go to the next slide, please.

19 There is the Skopje area with Ljuboten to the north.

20 Can we go to the next slide, please.

21 And now we have the start of what is actually the panoramic

22 material itself. My case manager is now moving across what is a

23 paragraph, a 180-degree photograph, of the Ljuboten village area.

24 If you could move to the other side, please.

25 And this is a view from the north of the village looking towards

Page 291

1 the south - I always get this confused - south-east, I believe. And what

2 is interesting about this visual aid is that it is possible if you click

3 on a particular point on the picture to go to a site in or near Ljuboten

4 for which witnesses in this trial are going to talk about.

5 [Prosecution counsel confer]

6 MR. SAXON: If you click there, here we have a view close to the

7 Ametovski -- what is known as the Ametovski house, which is one of the

8 areas that you will hear about in this trial, and so you can get a

9 three-dimensional view -- a 360-degree view of what people who were

10 present at the time were able to see or not see.

11 [Prosecution counsel confer]

12 MR. SAXON: If you see up in the top-hand, there is something

13 referred to Buzalak CP, that refers to a check-point that witnesses will

14 testify about. So if we click on that, please, and then you have an

15 image, and again a three-dimensional image of this particular spot where

16 a number of witnesses will testify about and speak to.

17 If we go back to the panorama, please. Go back to the right,

18 please.

19 And there is some other language that mentions panorama from

20 helicopter.

21 If you click on that, please.

22 We have some additional views that were actually taken -- these

23 are aerial photographs taken from a helicopter. What you're seeing now

24 is a view of the village of Ljuboten from the south-east looking to the

25 north, and again, different witnesses will be able to describe where they

Page 292

1 were, what they could see, where other individuals or other organisations

2 were located at certain times relevant to the indictment.

3 So this, just to give you very quickly, is a visual aid which we

4 created in the hopes that it would help all parties get some perspective

5 on the geography of the Ljuboten area and the places that are mentioned

6 in the second amended indictment and will be discussed by witnesses. And

7 it is our proposal to provide it to the Chamber and for use by

8 Prosecution, Defence counsel, and by the Chamber as an aid to clarify

9 matters during the course of the trial.

10 JUDGE PARKER: Thank you.

11 Is there any concern about that proposal from either Defence?

12 MR. METTRAUX: Yes, Your Honour, not really a concern. If the

13 Trial Chamber thinks that this material is of assistance to the Chamber,

14 we'll obviously not object to it. Perhaps one issue of clarification, we

15 would simply like to know when the pictures were taken which form part of

16 this panorama.

17 JUDGE PARKER: Thank you.

18 Mr. Apostolski.

19 MR. APOSTOLSKI: [Interpretation] We do not object that proposal

20 by the Prosecutor's office.

21 JUDGE PARKER: Thank you.

22 Now, the issue of when these views were taken, Mr. Saxon.

23 MR. SAXON: They were taken actually on two separate occasions,

24 Your Honour. The photographer made a trip to the Ljuboten area in 2004,

25 and then a second trip to the Ljuboten and Skopje area in the autumn of

Page 293

1 2005.

2 JUDGE PARKER: So they're some -- each of them some years after

3 the actual event?

4 MR. SAXON: That is correct, Your Honour.


6 The Chamber would indicate that it will certainly be prepared to

7 receive this in the course of the trial, Mr. Saxon. Thank you.

8 MR. SAXON: Thank you, Your Honour.

9 The Prosecution has prepared an additional visual aid which, for

10 lack of a better name, we have simply called a court binder. As the

11 Chamber is aware, in other cases the Prosecution has presented a binder

12 or a group of materials often containing, for example, maps that are

13 relevant to a particular case. In this case, the Prosecution felt that

14 it would actually be more helpful and efficient to provide a series of

15 photographs to the Chamber to keep with them and to refer to, to mark-up

16 as you see fit, and to the Defence. We've brought some extra copies

17 today. If I could ask the assistance of the usher to take three of them

18 and to provide them to members of the Chamber. The Defence has been

19 provided already with copies of them, I believe, last week.

20 And again, if you open up the proposed court binder, you see it

21 begins with a map of the Balkan region highlighting Macedonia; a second

22 map simply with Macedonia; and then the first photograph --

23 MR. METTRAUX: I'm sorry to interrupt, Your Honour. Could the

24 Prosecution give us a copy of the binder if they have one at this stage?

25 MR. SAXON: Please take my copy.

Page 294

1 What you will see, Your Honour, is the Prosecution has produced a

2 copy in hard copy of the panoramic views of -- from the north of

3 Ljuboten, from the west of -- from the south-east of Ljuboten. And then

4 as you move through the binder, the binder contains photographs of

5 particular spots that are mentioned in the second amended indictment and

6 will be described, I'm sure, both by Prosecution witnesses and by Defence

7 witnesses, particular places where the Prosecution alleges persons were

8 either killed or mistreated, certain places where Prosecution alleges

9 persons were detained, et cetera. And again, this was simply produced to

10 give all parties an additional visual aid to refer to as witnesses are

11 providing their evidence.

12 JUDGE PARKER: Is there any objection of either Defence team?

13 MR. METTRAUX: Well, Your Honour, I think if those pictures are

14 part of the proposed exhibit, the Defence doesn't really see the need for

15 such a binder. The Prosecution can seek to tender them individually or

16 in batches as they please during the trial. But I think there's a number

17 of issues which are going to arise in relation to some of those pictures,

18 issues of relevance, issues of timing of the picture and that sort of

19 thing. I don't think this material should be distributed or given to the

20 Chamber at this stage, in our submission, in any case. If the

21 Prosecution believes those documents to be material to their case, they

22 should be tendered properly at trial.

23 MR. SAXON: May I respond briefly?

24 JUDGE PARKER: Mr. Apostolski.

25 MR. SAXON: Sorry.

Page 295

1 MR. APOSTOLSKI: [Interpretation] I would not like to repeat from

2 what I said. I support the presentation of my colleague Mettraux.

3 JUDGE PARKER: Thank you.

4 Mr. Saxon.

5 MR. SAXON: Your Honour, just a clarification. The Prosecution

6 is not seeking to tender this court binder as a Prosecution exhibit.

7 We're simply providing it to the parties as a visual aid. Mr. Mettraux

8 is correct, some of the photographs on this -- within the binder are on

9 the Prosecution's exhibit list, and the Prosecution will seek to formally

10 tender them into evidence; however, it seems to me we're talking about

11 two different concepts here.

12 [Trial Chamber confers]

13 JUDGE PARKER: The question of the admission of any one or more

14 of the maps or photographs within this binder will be dealt with in the

15 course of the trial. It does appear that it may be an aid to

16 understanding the evidence of individual witnesses; for that purpose, it

17 will be used initially, and gradually in time the exhibits will take over

18 from the binder and it will come to be discarded by the Chamber by the

19 end of the evidence, and we will be left only with the exhibits. So I

20 think used in that sense it may prove to be of some assistance in

21 following the evidence of particular witnesses. Thank you.

22 Is there any further matter, Mr. Saxon?

23 MR. SAXON: No, Your Honour.

24 JUDGE PARKER: Thank you.

25 Now, we have only seven minutes to go before we must break to

Page 296

1 allow the tapes to be rewound. In that time, Ms. Residovic, is there one

2 or more matters that you would like to deal with, or Mr. Mettraux,

3 whichever you prefer?

4 MR. METTRAUX: Well, Your Honour, perhaps I will be able to

5 finish at least the issues which I would like to make submission about in

6 the next seven minutes.

7 There are essentially two issues which I would like to bring to

8 Your Honours' attention. My lead counsel Ms. Residovic will bring a set

9 of others to you. The first one relates to an item which we called

10 outstanding Defence requests. We've made a number of requests to the

11 Prosecution in writing, some of which have been responded to and those

12 matters are, therefore, not an issue anymore. However, there are a

13 number of others which remain pending, and there is one which we would

14 like to bring to Your Honours' attention because it may have some

15 consequences on the proceedings.

16 We have made a request for information and for assistance to the

17 Prosecution in relation to one of their proposed witnesses. This witness

18 due to come within the next two weeks or at least among the first 15

19 witnesses. We have raised some serious concern about the credibility of

20 this witness and have, therefore, sought the assistance of the

21 Prosecution in relation to this matter. At this stage, unfortunately, we

22 haven't received assistance from the Prosecution, at least not to the

23 extent that the Defence sought.

24 We have written once again to the Prosecution yesterday in

25 relation to this matter and hope that the Prosecution will respond

Page 297

1 positively this time to this request. If the Prosecution does not assist

2 the Defence in this matter, the Defence may have to seek a remedy from

3 the Trial Chamber directly. We hope that will not be the case, but we

4 want to bring it to your attention insofar as it may delay or possibly

5 could delay the evidence of that witness. We wish not to, but we can't

6 exclude it at this stage.

7 JUDGE PARKER: Well, there appears to be nothing you feel the

8 Chamber should do or could do at the moment?

9 MR. METTRAUX: Not at all, Your Honour, it was simply to bring it

10 to your attention.

11 JUDGE PARKER: Thank you.

12 MR. METTRAUX: There is a second matter, and that will be the

13 last for me, Your Honour, which is again simply a matter which the

14 Defence would like to put on the record and does not seek any remedy at

15 this stage from the Trial Chamber.

16 It has been said in a number of cases before this Tribunal that

17 it's for each party to decide what witness to call and what evidence to

18 tender at trial, and we do not seek to challenge that principle.

19 However, the Defence is very concerned in this case about what we

20 perceive as being a very one-sided approach to the evidence that is going

21 to be proposed by the Prosecution. Again, it is for the Prosecution to

22 decide what evidence to call. However, the Defence will proceed on the

23 understanding that where the Prosecution has failed to call witnesses or

24 to tender evidence which is evidently relevant to an issue relevant to

25 the case, it will not be permitted to seek a negative inference on the

Page 298

1 part of the Chamber where it could have called that evidence and has

2 declined to do so.

3 Once again, we insist that obviously the Prosecution calls the

4 evidence which they intend to call, but we are quite concerned that

5 evidence which clearly is relevant to this case has not been called, and

6 we will proceed on the basis of our understanding of this principle as

7 regard inferences.

8 JUDGE PARKER: Very well.

9 The Prosecution is on notice about that, but as you have

10 indicated, each party is in a position to call witnesses which they think

11 are relevant to the case. Prosecution's obligation is wider and more

12 extensive. It has an obligation to call all witnesses whose evidence is

13 relevant and, to put it shortly, whose evidence the Prosecution considers

14 to be credible and worthy of belief. And if it fails to meet that

15 obligation, well, then that certainly can have significant consequences

16 if there is an absence of a witness who proves to be material who was in

17 that category.

18 But beyond that, the -- you're speaking very hypothetically at

19 the moment, and we really can't say or do anything until there is a

20 practical issue to be resolved, and that's not likely to happen until

21 after the evidence is -- of all parties is concluded and we're looking at

22 the final addresses on the balance of the evidence.

23 Two and a half minutes, anything further short or would you like

24 us to adjourn now?

25 MS. RESIDOVIC: [Interpretation] Mr. President, at this moment I

Page 299

1 could only raise one issue; namely, the issue of translations of Defence

2 exhibits. We have already pointed this problem out on numerous occasions

3 as significant. Part of Defence exhibits have been translated, and we

4 are expecting a number to be translated yet. This problem will, we

5 expect, continue into the trial because on one hand we are continuing our

6 investigations that are producing new exhibits; and on the other hand,

7 which is very important, our searches of EDS, especially for documents

8 that fall under Rule 68, have not yet been enabled. And once these

9 searches become possible, we will be in a position to ask for more

10 translations.

11 For those reasons, Your Honour, we should like to ask for the

12 leave of the Trial Chamber in exceptional situations, when we do not have

13 an official translation of documents during cross-examination, to use a

14 working draft translation prepared by the Defence itself for purposes of

15 cross-examination pending an official translation.

16 Thank you.

17 JUDGE PARKER: What is the delay that you anticipate for the

18 provision of the outstanding translations? Or if you request a document,

19 the delay you anticipate before that request is met? Can you help us

20 there?

21 MS. RESIDOVIC: [Interpretation] We cannot give you that

22 information at this stage, Your Honour. We could ask for that

23 information from the CLSS, and then we will be able to pass it on to you.

24 But by judging by their practice so far, I believe that we can expect the

25 latest documents we submitted for translation only in two or three weeks.

Page 300

1 JUDGE PARKER: The translation service has been working

2 incredibly hard to meet the demand there is on -- for documents in this

3 case because there are a number of languages that are being required, and

4 also with other ongoing cases where there is a heavy translation

5 requirement. So if they are managing to achieve results in two or three

6 weeks, we are very grateful for that.

7 That brings us back to your earlier point: You have not been

8 able to search. Is that to do with the fact that earlier you sought

9 documents in CD form and now are wanting them on the electronic

10 disclosure suite?

11 MS. RESIDOVIC: [Interpretation] Yes, Your Honour. As you know

12 from our earlier submissions, we received the first nine batches, both on

13 CD and in EDS. Due to problems we encountered in Macedonia with access

14 to EDS and certain problems encountered in Sarajevo, we asked the

15 Prosecution to continue disclosing evidence, both in EDS and on CDs. The

16 Prosecution continued to disclose on CDs; however, we know that searches

17 of exhibits that are sometimes thousands of pages long do not allow for

18 searches on a number of criteria.

19 For that reason, we asked the Prosecution to disclose all those

20 same documents again on EDS, so that, in view of the fact the trial is

21 scheduled to start in April this year, we should be able to complete the

22 entire search of exhibits disclosed to the Defence under Rule 68 in a

23 professional manner. The Prosecution informed us that they would do so

24 by the 3rd of April. And let me note that we never asked for disclosure

25 in EDS to stop; we simply accepted CDs because at the beginning we had

Page 301

1 certain problems in accessing the EDS. When those problems have been

2 removed, we asked the Prosecution to make the whole material available in

3 EDS, which is their obligation anyway. And as I said at the last Status

4 Conference, the Prosecution promised us that they would submit the

5 greatest part of that material in EDS by 3rd of April. On the 4th of

6 April, we received an e-mail from the Prosecution informing us that there

7 are technical difficulties in transferring the whole material into EDS,

8 and that this process will take a while.

9 As things stand now, we still do not have -- we still do not have

10 certain batches in EDS such as 12 to 22 and 34 to 44, and we don't see

11 from the letter we received from the Prosecution whether the documents

12 that were earlier contained in those batches are still there. The

13 Prosecution also said that documents from batch 11 would not be put into

14 EDS.

15 On this issue, we had an exchange of letters with Prosecution,

16 because it's very important for us to have 68 material in EDS because

17 that is the only way in which the Defence can search by all criteria that

18 matter to the Defence.

19 I'm sorry. I made a mistake. We have batches 12 to 22 in EDS

20 now, and we have 34 to 44 in EDS, according to what the Prosecution

21 informed us. And as of today, we have over 60 batches disclosed --

22 sorry, as of yesterday, 72 batches.

23 JUDGE PARKER: Well, do I understand from what you're saying that

24 because of your own technical problems in Macedonia, the Prosecution

25 provided material to you in a different format, in CD form; and now that

Page 302

1 you have overcome those problems, the advantages of the EDS system are

2 something that you need for your searching, and you only in the last few

3 days obtained EDS disclosure of quite a number of batches of disclosure

4 material. So you've yet to search that and you've yet then to request

5 translations of some of that material for the purposes of your

6 preparation. Is that the position?

7 MS. RESIDOVIC: [Interpretation] Your Honour, normally in the

8 course of our entire preparations, we searched documents that have been

9 given us on CD. But what we are trying to say is that, first of all, the

10 Prosecution had the obligation to put all that material in EDS,

11 regardless of the fact that they had provided it on a CD. We never asked

12 them to stop placing material in EDS.

13 So our position is as follows: We have already searched most of

14 the material that is on CD and that is searchable on CD, but we know that

15 we have not yet searched a great number of documents because searches for

16 those documents are very difficult or impossible in CD form.

17 JUDGE PARKER: Well, we are out of time on the tape. We must

18 adjourn now to enable the tape to be rewound. When we return, we'll ask

19 first, Mr. Apostolski, whether you have problems and what they may be

20 about this, and then we'll hear from Mr. Saxon. So we will now adjourn

21 to resume at ten minutes past 11.00.

22 --- Recess taken at 10.40 a.m.

23 --- On resuming at 11.12 a.m.

24 JUDGE PARKER: Mr. Apostolski, is there anything you wish to --

25 I'm sorry, I thought you had finished on this point.

Page 303

1 MS. RESIDOVIC: [Interpretation] Just two minutes with your leave,

2 Your Honour.

3 First of all, I would like to inform the Chamber that the team --

4 our team was joined by Mr. Dragan Godzo, legal consultant. And second,

5 Your Honour, on the issue -- on the question you asked me, I want to be

6 absolutely clear.

7 On the 17th of January, 2006, our Defence team addressed a letter

8 to the Prosecution concerning the problems that we have discussed and

9 asked for the entire material to be made available to us also in CD form

10 because prior to that the Prosecution was providing material, both on CD

11 and in EDS. Since the Prosecution took their own decision, as they

12 informed us on the 20th December, to stop providing material on CDs, we

13 just asked them to continue that practice. We never ever asked them to

14 stop placing material in EDS, and anyway we couldn't have done that

15 because Rule 92 makes it incumbent upon the Prosecution to provide

16 material in searchable form --

17 JUDGE PARKER: Did you ever ask the Prosecution to also provide

18 the material in EDS form?

19 MS. RESIDOVIC: [Interpretation] We asked the Prosecutor to

20 provide, in addition to material in EDS, to provide material in CD

21 form --

22 JUDGE PARKER: When in the course of your -- in the course of

23 your receiving CD form disclosure, did you ever then say, We are not

24 getting EDS, we want EDS as well?

25 MS. RESIDOVIC: [Interpretation] When we commenced intensive

Page 304

1 preparations for the trial in December, we noted that the Prosecution had

2 stopped placing material in EDS, and at that point we immediately asked

3 them to provide material in EDS as well, because just for an example the

4 preparation for the witness who's coming next week, using CDs would mean

5 that we have to open 74 CDs to find the name of that witness and review

6 thousands of documents. Normally, using EDS, we would be able to do that

7 searching just the name of that witness, and that is indispensable for

8 preparing our defence.

9 JUDGE PARKER: Thank you.

10 MS. RESIDOVIC: [Interpretation] Thank you.

11 JUDGE PARKER: Mr. Apostolski, anything to add?

12 MR. APOSTOLSKI: [Interpretation] Your Honour, I would like to

13 dwell on the issue of translation requested from the CLSS. I wish to

14 inform the Court that we had in a timely fashion submitted materials of

15 around 500 pages to the CLSS, and although they make their best of

16 efforts, we were informed by them that until the 12th of April they will

17 finalise the translations.

18 Since we believe that the materials are needed, especially during

19 the cross-examination of witnesses, I wish to inform the Court that only

20 50 pages of the materials were translated by the CLSS. I hope that the

21 CLSS, although working very hard, that I will have the documents

22 translated and that I will have them available during the

23 cross-examination. That is what I have to say with regards to the

24 translation of documents.

25 With regards to disclosure of evidence by the Prosecution, the

Page 305

1 Prosecution has started making available EDS of the batches 1 to 9, and

2 then they stopped updating and disclosing the evidence. I think -- and I

3 would like to ask the Prosecutor to continue the practice since it is

4 simpler and easier for us to prepare the defence.

5 So in this respect, I would like to ask the Prosecutor once again

6 to continue the practice of making the documents available via EDS.

7 Thank you, Your Honour.

8 JUDGE PARKER: With respect to the translations, have you asked

9 when you may receive them?

10 MR. APOSTOLSKI: [Interpretation] Yes, Your Honour, we have asked,

11 and the CLSS has informed us that we would receive them translated not

12 later than 12th of April. That was at the moment of our submission of

13 documents for translation.

14 JUDGE PARKER: So you haven't inquired in the last day or two

15 when it will be completed?

16 MR. APOSTOLSKI: [Interpretation] We haven't received any answer

17 on that by the CLSS.

18 JUDGE PARKER: Thank you.

19 Mr. Saxon.

20 MR. SAXON: Very briefly, Your Honour. Your Honour, it was never

21 the Prosecution's understanding when it began to provide disclosure on

22 individual CD-ROMs in the autumn of 2005, that the Defence counsel also

23 expected the Prosecution to continue providing the same material, the

24 same time on the EDS system. The Prosecution, I believe, after batch --

25 disclosure batch 9, stopped disclosing on both -- in both formats simply

Page 306

1 because our trial support personnel could not keep up with the workload,

2 and because the Defence counsel had said they had preferred disclosure on

3 CD-ROM, that was the format that we continued to use.

4 Ms. Residovic, a moment ago, told you that in December of this

5 [sic] year, the Defence noticed that the Prosecution had not been

6 continuing its disclosure also on the EDS system and immediately informed

7 the Prosecution about this. It may be that my record-keeping is faulty,

8 but according to my records the Defence counsel for the accused Boskoski

9 informed the Prosecution of this issue on the 12th of March, 2007. That

10 is the letter that we have. I believe the Trial Chamber already has a

11 copy of this letter in front of you, as well as copies of the

12 Prosecution's response of the 15th of March.

13 The Prosecution, since the 15th of March, has endeavoured to go

14 back and again put all of this material also on the EDS. Simply because

15 of technical matters, it takes time. We had hoped that a large amount of

16 this material would have been on the EDS by the 3rd of April. There were

17 some delays. I understand that, as of yesterday, a number of additional

18 batches are now available on the EDS, and our technical people are

19 continuing to work on that.

20 At the same time, recently to avoid any -- any untimely

21 disclosure of material, the Prosecution has been disclosing material in

22 both formats to make sure that the Defence receives all disclosure

23 material in a timely fashion. And as the Prosecution has said

24 previously, we have done our very best to try to meet our disclosure

25 obligations and to address the needs of the Defence and to facilitate

Page 307

1 their work.

2 JUDGE PARKER: Thank you, Mr. Saxon.

3 This issue commenced with the proposition by leading counsel for

4 Mr. Boskoski to inquire whether the Chamber would be prepared to allow as

5 a matter of general practice the use of unauthorised translations for

6 cross-examination because of difficulty in securing immediate

7 translations of documents now taken from the EDS system, and the

8 background to that being that the majority, the vast majority, of the

9 disclosed information appears to have been disclosed in CD-ROM form, and

10 that was done initially at the request of the Defence because of their

11 technical limitations in dealing with the electronic disclosure suite

12 form.

13 There seem to be some 72 batches of disclosed material.

14 Mr. Saxon says that it was after batch 8, that the Prosecution stopped

15 EDS disclosure and moved solely to CD-ROM disclosure. There is some

16 difference whether they were asked in December of last year or March of

17 this year now to provide in EDS; that having occurred when the Defence

18 teams were in the position to have proper access with their equipment to

19 EDS disclosure.

20 Whatever the wrongs or rights of that, it is clear that the

21 Prosecution altered its procedure to meet the needs of the Defence, and

22 that the -- without objection they disclosed only in CD-ROM form until,

23 whether it be December or March is not greatly material, the request was

24 revised, and the Prosecution has since been trying to bring its

25 disclosure into EDS form to enable the Defence to have the advantage of

Page 308

1 the EDS form with its search facilities.

2 The result, however it arose - and it's clearly not a matter that

3 has arisen by failure by anybody or default by anybody - the result is

4 that there is a great deal of material which the Defence has not been

5 able to have translated, material which they consider important to their

6 Defence preparation or important to their cross-examination of witnesses.

7 The Chamber has had experience of unauthorised translations being

8 used for cross-examination. While this may be a way of dealing with an

9 unexpected situation, the experience of the Chamber is to indicate that

10 this only leads to difficulty. It is surprising how often there is

11 disagreement over the form of an unauthorised translation. At times a

12 witness can be unfairly challenged because of the form in which an

13 unauthorised translation exists, and the whole point of the challenge

14 disappears as resolved when the authorised translation is received and it

15 is seen that, in fact, the witness was not mistaken or confused but was

16 entirely correct. And yet, the whole point of a cross-examination has

17 gone along a false line because of a -- an often hurried informal

18 translation, and not only is that being unfair to the witness but it also

19 means that the point of the cross-examination is lost.

20 So the Chamber is certainly not of the mind to agree to the idea

21 of a practice of informal translations. We think that the interests of

22 the -- a fair and proper trial are not going to be served by such a

23 procedure.

24 There will be a time occasionally when some unexpected event may

25 require that we follow such a procedure. We don't want to rule that out

Page 309

1 as a possibility. But I can suggest to counsel from our experience that

2 we will then lose time as we attempt to resolve what seem to be

3 inevitable differences between the unauthorised translation and the

4 formal considered translation. But it may be that that will be a way of

5 overcoming some unexpected problem.

6 But as a matter of normal practice in the trial, in our

7 experience it will be unhelpful and could lead to a failure to do justice

8 to one or both sides.

9 The submissions indicate that the EDS disclosure is now virtually

10 complete, although some still remains. That seems to mean that

11 translations can now be sort of material documents which the Defence

12 identifies from its searching of EDS. The experience of counsel suggests

13 that those demands now for translation may be satisfied in two to three

14 weeks. There's even hope that Mr. Apostolski's problems may be resolved

15 in the near future; at least they're being dealt with.

16 So it seems that before we get into the cross-examination of

17 witnesses who are potentially affected by this, the efficient conduct of

18 the trial may require that we go slow or stop for some two to three

19 weeks.

20 I will leave that matter at that point and deal with the other

21 matters that need to be raised because the Chamber wants, of course, to

22 come back to the important question of the course of evidence which is

23 intended at the moment to commence next week. We'll come back to that

24 later.

25 If I could now ask Ms. Residovic whether there are other matters

Page 310

1 that she wishes to raise at this stage?

2 MS. RESIDOVIC: [Interpretation] Thank you, Your Honour. We thank

3 the Trial Chamber, and we look forward to similar clear instructions in

4 the future from the Trial Chamber to enable us to prepare as efficiently

5 for the trial as possible and to avoid undue delays in leading evidence.

6 We would also welcome clear instructions from the Trial Chamber

7 concerning the method of introducing exhibits into evidence during trial.

8 One of the issues we had raised with our learned friend from the

9 Prosecution concerned our request to be informed whether the Prosecution

10 will use any exhibits during their opening statement; and if so, which.

11 The Prosecution gave us an affirmative answer but without any precise

12 information.

13 One of the issues that I would like to particularly emphasise is

14 one that had been raised in the latest confidential motion by the

15 Prosecution for protective measures. The Defence is fully aware of

16 Rule 69 and the practice of this Tribunal as to how and in which way

17 witnesses and victims are entitled to protective measures to be granted

18 by the Trial Chamber. We will do our best to ensure that such decisions

19 are made in accordance with the Rules and with the practice.

20 However, the Defence has to express its disagreement with the

21 latest remarks of the Prosecution stated in their confidential motion for

22 protective measures. We realise it is a confidential document, and that

23 is why the Defence will refrain from mentioning sources or the persons

24 referred to therein. But the conclusions made in that document are of

25 particular concern to the Defence, especially the conclusion of one of

Page 311

1 the investigators.

2 In ongoing proceedings against a former minister of the interior

3 of an independent and sovereign state, the Prosecution very frequently

4 used - in support of its allegation - statements, allegations, and such

5 that were unsupported by evidence and that were geared at creating a bad

6 image of the accused and the government of his country, to which the

7 Defence opposed itself providing substantiated arguments.

8 In their latest request for protective measures, we find a

9 statement of discriminatory nature made against one whole people, ethnic

10 Macedonians, and this statement is made by an authorised investigator of

11 the Prosecution, who indicates that they are capable of and prepared to

12 intimidate witnesses who for that reason may not be willing to appear

13 before this court.

14 Intimidation of witnesses is a very serious allegation in our

15 view, and if the Prosecution wants to present such information, they are

16 required to inform the Court. But they cannot make such allegations

17 without investigating and without informing the Court, and they cannot

18 use such allegations in justifying their statements that some witnesses

19 are unwilling to appear before the Court, or to testify in the way that

20 the Prosecution would like them to, or to justify that witnesses will

21 testify differently than previously indicated.

22 It is the right of the Prosecution to prepare witnesses in the

23 way they deem fit, but if their investigator claims that the witness is

24 to be believed because one whole society, namely ethnic Macedonians, are

25 prepared to take certain measures against a witness who would appear

Page 312

1 before this Court, then such a claim is of great concern to the Defence.

2 It has nothing to do with professional approach to preparation of

3 witnesses, and such claims require that investigator to appear before the

4 Court and face cross-examination. Such claims should certainly not be

5 placed in confidential submissions.

6 For these reasons, our Defence believed that we had to react in a

7 most vigorous manner.

8 Thank you.

9 JUDGE PARKER: Mr. Saxon, is there any response you wish to make?

10 MR. SAXON: Solely that there was certainly no discriminatory

11 intent by any member of the Prosecution in any of its recent filings, in

12 particular this recent motion. Second of all, of course the Prosecution

13 is acting pursuant to the Statute and the Rules under its obligation to

14 protect the rights and interests of witnesses.

15 JUDGE PARKER: This is a motion which has yet to be decided. I

16 have to say that I have not yet studied the submissions on it, so I can't

17 give any indication of my reaction to what may be there. But your

18 observations are noted and they will be kept in mind in the next few days

19 when that motion is concerned and dealt with.

20 Thank you for that.

21 Now, is there any other matter, Ms. Residovic?

22 MS. RESIDOVIC: [Interpretation] No. Thank you, Your Honour.

23 JUDGE PARKER: You did ask for some discussion about exhibits.

24 There are some exhibits which may be admitted without evidence to verify

25 them or identify them. Obvious examples are laws of a country, statutes,

Page 313

1 regulations and the like, birth certificates, death certificates,

2 documents of that nature. They simply be tendered from the bar table.

3 It may be done at the beginning of a case; it may be done during an

4 opening statement; it may be done at a convenient time during the

5 evidence.

6 Other documents require them to be identified and confirmed as to

7 what they are so that the Chamber understands the nature of the document

8 and has some basis for treating the document as authentic; and that,

9 therefore, requires some evidence. Usually, that evidence will be

10 provided by one of the witnesses called. When the witness has identified

11 the document and said, Yes, I recognise that as an order issued by the

12 chief of police, for example, the document can then be tendered as an

13 exhibit. If there are objections, they will be dealt with at that stage.

14 There are a few documents where you need the evidence of more

15 than one witness before all the components come together to identify the

16 document and give it apparent authenticity. And so sometimes one witness

17 will speak about a document, and then a later witness will give some more

18 evidence about it, and then the document can be tendered.

19 So there's no single procedure for dealing with documents, it

20 depends principally on the nature of the document. But for ordinary

21 documents, ordinary exhibits, once they have been sufficiently identified

22 and spoken about by a witness who knows about the document, it will

23 usually then be convenient for the party wishing that document to be an

24 exhibit to simply move for it to be received as an exhibit. In so many

25 words your simply saying, I tender the document, will be enough. I hope

Page 314

1 that is sufficient general indication for the purposes of our procedure,

2 and I'm sure that you will get used to it fairly quickly as we go along.

3 There will be times when the nature of objections when a

4 witness -- when a document is tendered causes the Chamber to delay its

5 decision whether to receive the document until there's been perhaps

6 cross-examination or until it's heard another witness about the document

7 and so on. So it's not every time a document is tendered that it will be

8 received. If there is a serious objection that requires some

9 clarification, the question of its admission as an exhibit will have to

10 wait until those matters of uncertainty come to be dealt with.

11 Well, I think that is concluding then the matters that

12 Ms. Residovic wished to raise. I hope we have dealt with them all.

13 Mr. Apostolski, are there any further matters that you would wish

14 to raise at this stage?

15 MR. APOSTOLSKI: [Interpretation] I don't have any other issues

16 that I would like raised at this stage of the process. Thank you, Your

17 Honour.

18 JUDGE PARKER: Thank you.

19 Mr. Saxon.

20 MR. SAXON: Your Honour, if you will permit me to return briefly

21 to an item that Ms. Residovic raised and which you have already spoken

22 about.

23 A few minutes ago, you informed the parties that the Chamber does

24 not want - to use your language - informal translations. Can I take from

25 that phrase that in your mind an informal translation would be an item

Page 315

1 that was not translated by CLSS? Is that how I should interpret your

2 language?

3 JUDGE PARKER: Yes, normally.

4 MR. SAXON: All right.

5 JUDGE PARKER: There may be some other authoritative translation

6 that is provided which we would be prepared to accept. For example, a UN

7 document that had been translated in New York or something of that

8 nature, but normally if there's a document in Albanian or Macedonian or

9 B/C/S, we would look for a CLSS translation.

10 MR. SAXON: I must be frank. I simply did not anticipate that

11 this would be the position of the Trial Chamber until now. I simply want

12 to inform the Trial Chamber of the following: In recent months, the

13 Trial -- the Prosecution has had two persons assisting its team with --

14 who are fluent both in the Macedonian language and in the English

15 language. And quite frankly, the Prosecution in -- has had discussions

16 with the staff of CLSS regarding how much material can the Prosecution

17 provide to CLSS for requested translations. And as part of these

18 negotiations, agreements were reached during prior months that, for

19 example, certain documents would be translated by the assistants who,

20 although they are employed by the Office of the Prosecutor, they are not

21 employed formally by CLSS.

22 To give you one example of where this might come up, you are

23 probably aware that Exhibits, I believe, 10 through 21 on the

24 Prosecution's exhibit list refer to court files that were copied and

25 obtained at Basic Court II in Skopje and that are related to the

Page 316

1 allegations in the second amended indictment. And most of the material

2 from those court files that has been translated into English has actually

3 been translated not by CLSS personnel but by persons working for the

4 Office of the Prosecutor.

5 If those translations will not be sufficient for the

6 Trial Chamber, then the Prosecution will endeavour to go back to CLSS and

7 ask for this work to be done, but obviously it is creating more work.

8 And I simply wanted to raise that with you at this time.

9 JUDGE PARKER: I don't know that we can give you an immediate

10 solution to that problem, Mr. Saxon. The Chamber is very well aware that

11 the resources available for translation, both from and to the Albanian

12 language and from and to the Macedonian language, have been a matter of

13 great concern. There simply are not enough people available with the

14 requisite skills to provide what is needed in this court and in other

15 courts using Albanian within the time-frames needed.

16 And now that you mention it, I recall it being said at a

17 pre-trial conference that the Prosecution was seeking to help with that

18 problem because it had been able to obtain the services of some people to

19 help with the Macedonian language, I believe.

20 Can I suggest that you have discussions with counsel for each

21 accused, perhaps identifying the documents that have been translated by

22 these people, and see whether it will be possible for them to accept the

23 translation of some or all of them. And we'll see then whether the

24 problem can be limited in its size or can be dealt with in some way.

25 Clearly, if we have to go to CLSS with a large bulk of

Page 317

1 Prosecution documents, there will be yet a further considerable delay

2 before it can be corrected, and I don't think that would be in the

3 interests of anybody. You have been able to obtain the services of

4 competent translators, and it may be that when the documents are

5 identified, the Defence will be in a position to accept some or all of

6 those. They may not be critical to the Defence case, for example.

7 MR. SAXON: Your Honour --

8 JUDGE PARKER: Could I ask counsel for the Defence if they would

9 be prepared to entered into those discussions?

10 MR. METTRAUX: Yes, thank you very much. Absolutely, Your

11 Honour. The Prosecution has already given us a list. We had made a

12 specific request to them for the reason that Your Honour indicated. We

13 had some concern about the quality of some of the translations. And the

14 Prosecution has given us a list of those documents which appear on the

15 exhibit list which have been translated internally. So what we would

16 propose to do is we would go through their list, see whether there's any

17 document which is either of concern to the Defence or for which we would

18 insist to have an official translation. But as Your Honour pointed out,

19 perhaps for bulky documents or official documents of that sort, there

20 would be no need for such translation. We will try also to use our more

21 limited resources, but in any case to have people look at those documents

22 to see whether there's any particular concern in relation to those

23 documents.

24 JUDGE PARKER: That's very helpful of you. Thank you, indeed.

25 And I see Mr. Apostolski agreeing. Yes. Thank you.

Page 318

1 Now, you've got a further problem, Mr. Apostolski?

2 MR. APOSTOLSKI: [Interpretation] Your Honour, following up on the

3 issue raised by my learned colleague Dan Saxon, I would like to raise the

4 issue of the possibility to have translations by the authorised court

5 translators, authorised by Macedonian courts. Could we avail ourselves

6 of that opportunity regarding the issue raised by my colleague Dan Saxon?

7 In coordination between us and reviewing the translations, maybe we might

8 accept the translations performed by their staff.

9 JUDGE PARKER: Thank you for that suggestion. I understand that

10 our CLSS had been inquiring virtually everywhere it could think of to try

11 and find more suitable translators to help in the task, and the available

12 people are very few. And it may be that their inquiries have told them

13 that the people working with the Macedonian courts are already fully

14 taxed.

15 So -- but again, it's a matter that can be discussed between

16 counsel to see whether some solution can be met for this issue. I -- the

17 Chamber sincerely hopes it will be possible to ensure that we get

18 reliable translations that everybody can use and be satisfied with of the

19 important documents in the case.

20 There appears to be only one matter to be left now for

21 consideration, and that is the motion that is before the Chamber to delay

22 the start of the case. It's a motion by both Defence counsel. It's

23 short. It sets out clearly the problems the Defence are having in being

24 ready to deal with the witnesses the Prosecution proposes to commence

25 leading next week.

Page 319

1 Now, we don't need counsel to go over the submissions that are

2 already there, we're aware of those, we've read them. Clearly from

3 today's hearing, the question of the translation of documents is a

4 significant factor in the Defence being ready to deal with witnesses as

5 they are led. So we take account of that. It was, of course, referred

6 to and relied on in the motion, but it has been given greater emphasis by

7 what has transpired today.

8 Now, is there anything further either Defence counsel wishes to

9 add to what has been said today and what is in the written submissions?

10 Ms. Residovic, anything?

11 MS. RESIDOVIC: [Interpretation] No. Thank you, Your Honour.

12 JUDGE PARKER: Mr. Apostolski.

13 MR. APOSTOLSKI: [Interpretation] Your Honour, we have nothing to

14 add at this moment. Thank you.

15 JUDGE PARKER: Now, Mr. Saxon, we received last evening your

16 response. Thank you for bringing that in very quickly. Is there

17 anything further that you would wish to add?

18 MR. SAXON: No, Your Honour.

19 JUDGE PARKER: Thank you.

20 [Trial Chamber confers]

21 JUDGE PARKER: The Chamber is of the view that the opening

22 statements should proceed next Monday, as ordered. The Chamber is also

23 impressed with the difficulties that have arisen in the way of the

24 Defences being ready to deal with the witnesses that were to be called

25 commencing next week after the opening statements. It is clear that for

Page 320

1 more than one reason, the Defence is less prepared than is desirable for

2 the proper and fair conduct of the trial, and one particular difficulty

3 that has arisen - and it's not a difficulty that has arisen by fault of

4 anybody - is the difficulty that has been the subject of submissions here

5 this morning about the translation of documents which the Defence intends

6 or may need to rely on for the cross-examination of witnesses.

7 To meet those difficulties, the Chamber therefore feels that the

8 proper conduct of the trial necessitates a delay in the start of

9 evidence. It appears that something between two and three weeks is

10 likely to overcome most, if not all, of the translation difficulties, and

11 it would also enable the other matters that have been raised to resolved.

12 And with such a delay, it should then be possible to ensure a fairly

13 smooth and continuous running of the trial after that.

14 Now, it had been the hope of the Chamber that this could have

15 occurred from this coming Monday, but we see that there are real

16 difficulties in the way of that, and we must give way to that in the

17 interests of the trial being properly conducted.

18 There are practical problems, we realise, for the Prosecution.

19 It has the difficult task of bringing a large number of witnesses from

20 mostly Macedonia, perhaps some from Albania, to The Hague; witnesses who

21 are not in most cases used to international air travel. And the

22 consequence is that this delay will undoubtedly be disruptive for

23 arrangements that have been made for the timely attendance of those

24 witnesses.

25 The delay may also inconvenience some of those witnesses who may

Page 321

1 have planned their other affairs around the expected date of their

2 evidence with the trial evidence commencing next week. The Chamber

3 apologises to any witnesses who find they are inconvenienced in that way,

4 but we feel, for the reasons indicated, that we must allow some limited

5 adjournment.

6 The issue really becomes when the Prosecution can most

7 conveniently be ready to resume with the flow of witnesses to continue

8 the case. To the Chamber, there appear to be two possible dates:

9 Wednesday, the 2nd of May, bearing in mind that Monday is a holiday and

10 the need to effect travel arrangements and proof witnesses when they

11 arrive, that would mean Wednesday, the 2nd of May, which would be just a

12 little over two weeks' delay; or Monday, the 7th of May; it could even be

13 Tuesday, the 8th, if Mr. Saxon thinks that would be more practical.

14 We're looking here, too, for the practicalities of a start date that

15 would be manageable to re-arrange this body of witnesses to enable their

16 convenient attendance.

17 Are you able to help us there, Mr. Saxon?

18 MR. SAXON: I will try to help, Your Honour. Certainly, the

19 decision today will require the Prosecution to communicate with a number

20 of witnesses and see whether the witnesses whom the Prosecution had

21 anticipated calling early in its case would still be able to come perhaps

22 two weeks later. And if there are certain witnesses who cannot, we will

23 have to re-arrange the witness order a bit.

24 May I suggest, perhaps to be on the safe side, that we plan on

25 starting the presentation of evidence on Monday, the 7th of May, just to

Page 322

1 make sure that both the Prosecution as well as the Victims and Witnesses

2 Unit, who has to deal with all of the logistics, visas, plane travel,

3 will have time to do the work that they need to do.

4 JUDGE PARKER: Thank you.

5 Ms. Residovic, do you have any concern about Monday, the 7th of

6 May?

7 MS. RESIDOVIC: [Interpretation] Your Honour, the said date, the

8 7th of May, is convenient for us. Thank you.

9 JUDGE PARKER: Mr. Apostolski.

10 MR. APOSTOLSKI: [Interpretation] Your Honour, the 7th of May

11 suits us.

12 JUDGE PARKER: Very well. We find ourselves in the position

13 where we will commence the trial with opening statements next Monday, the

14 16th of April, as programmed. That will at least allow all counsel to

15 focus their minds on the main issues, and it's been our experience that

16 that often helps with the final stages of preparation.

17 For the reasons indicated, we will then adjourn the trial to

18 resume on Monday, the 7th of May, and we hope then that it will be

19 possible to have a regular and continuous flow of witnesses. We will

20 watch progress, and it may be necessary to make some adjustment to

21 arrangements by the end of May. We will see how things are going.

22 And I'm sure all counsel will understand that with this delay, it

23 may be necessary for the Prosecution to re-arrange the order of some of

24 its witnesses because of the convenience of those witnesses and the need

25 to make new arrangements for their travel.

Page 323

1 This delay, which will be a delay effectively of three weeks, is

2 a disappointment, but we hope it will be a means of enabling all counsel

3 to be fully prepared for the trial instead of attempting to start the

4 trial with counsel not equipped with all the material that they need to

5 be able to perform their role effectively. The delay will also mean that

6 the Chamber will be particularly attentive to the timely progress of the

7 trial, and we will frankly attempt to catch-up some time.

8 So please be aware of that in your preparation and be sure to

9 concentrate and deal with only those matters that are really important.

10 By that means, we may be able to make up some of the three weeks that

11 otherwise will be lost.

12 So we commend to all counsel a very busy three-week delay so that

13 you're really on top of the case when we get back to the evidence.

14 Can I say to the two accused men, we are unfortunately in the

15 position where the interests of your fair trial seem to require that we

16 have to have a delay at this stage, but a delay now ought to mean that

17 your trial will be able to then proceed more speedily and more

18 efficiently, and that should be in your best interests in the long run,

19 and hopefully we can catch up some, at least, of the time we lose with

20 this delay.

21 If there are no other matters, may we then thank counsel for

22 their attendance and their assistance. We will be sitting again on

23 Monday for the commencement of the trial and the opening statement of the

24 Prosecution and, if it's desired, the opening statement of either or both

25 of the accused. You will realise that the Rules enable you to defer the

Page 324

1 opening statements of the accused until the Defence case is opened, but

2 the Rules also allow an opening statement to be made now. So you can

3 reach a decision as to whether you wish to make an opening statement next

4 Monday or not. But, in any event, we look forward to the Prosecution's

5 opening statement.

6 Thank you. We now adjourn.

7 --- Whereupon the hearing adjourned at 12.11 p.m.,

8 to be reconvened on Monday, the 16th day of

9 April, 2007, at 9.00 a.m.