1 Monday, 26 January 2009
2 [Further Pre-Trial Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 3.33 p.m.
6 JUDGE PARKER: The case can be called, please.
7 THE REGISTRAR: Good afternoon, Your Honours. This is case
8 number IT-05-87/1-PT, the Prosecutor versus Vlastimir Djordjevic.
9 JUDGE PARKER: Thank you very much.
10 We assemble this afternoon to complete the pre-trial procedures,
11 with a view to the trial itself in this matter commencing tomorrow. We
12 met some three to four weeks ago to have an earlier consideration to some
13 of these pre-trial matters, and we adjourned on that occasion with a view
14 to having this final opportunity to look at issues that may have arisen
15 in the meantime.
16 Mr. Stamp, you appear for the Prosecution?
17 MR. STAMP: Yes, Mr. President. May it please you, I appear for
18 the Prosecution, along with Mr. Matthias Neuner, trial attorney, and our
19 case manager is Ms. Line Pedersen.
20 JUDGE PARKER: Thank you very much, Mr. Stamp.
21 MR. STAMP: Thank you, Your Honour.
22 JUDGE PARKER: Mr. Djordjevic.
23 MR. DJORDJEVIC: [Interpretation] Good afternoon.
24 THE INTERPRETER: Interpreter's note. The microphone is not on.
25 JUDGE PARKER: Your microphone.
1 MR. DJORDJEVIC: [Interpretation] With me on my team is my
2 co-counsel, Mr. Djurdjic, our two legal assistants, Mr. Popovic and
3 Ms. O'Leary. Thank you.
4 JUDGE PARKER: Thank you, Mr. Djordjevic.
5 Now, on previous occasion some time ago, the accused has pleaded
6 not guilty to the counts in the current indictment. We take it,
7 Mr. Djordjevic, that the accused maintains his pleas of not guilty.
8 MR. DJORDJEVIC: [Interpretation] Yes, that is correct, Your
10 JUDGE PARKER: Thank you very much.
11 Now, there are some matters which need to be considered on this
12 occasion. The first is the witness list and here we look to you
13 primarily, Mr. Stamp. You were not here, but counsel appearing for the
14 Prosecution on the 16th of December, when this Pre-Trial Conference was
15 commenced, was to file a response -- I have confused that matter,
16 Mr. Stamp. Let me correct it.
17 A list of intended Prosecution witnesses was filed on the 12th of
18 December last year, and that list proposed to withdraw 17 witnesses from
19 the number that had been previously listed. And the Defence was to file
20 a response to that proposal by today, so that rather than looking to you,
21 Mr. Stamp, you can relax, sit back and be content; and I will turn
22 instead to Mr. Djordjevic.
23 The position, could you indicate, please, Mr. Djordjevic, is it
24 that you have no position?
25 MR. DJORDJEVIC: [Interpretation] Yes, you're correct. Yes, you
1 are right, Your Honour. The Defence will file the submission by the end
2 of the deadline today, as we have undertook. So we will do that by the
3 end of today.
4 JUDGE PARKER: Would you indicate, do you object to the
5 withdrawal of any of these 17 witnesses?
6 MR. DJORDJEVIC: [Interpretation] I would like to leave that until
7 the end of the deadline because the Defence will continue considering the
8 issue after we complete the Pre-Trial Conference to see what we will
9 decide. But let me tell you that in all likelihood, we will not be
10 opposing it.
11 JUDGE PARKER: Very well. If there is no opposition, you can
12 anticipate, Mr. Stamp, that the Chamber will, in due course, agree. Of
13 course, if there is opposition in respect of any of the proposed 17
14 withdrawals, the Chamber will have to give consideration to the reasons
15 advanced for that opposition. But we will await until the response is
16 received by the end of today.
17 Is there any -- I assume from what you have said, Mr. Djordjevic,
18 that there is no particular matter you want to put to the Chamber today
19 about those witnesses and that you propose that we wait until you've
20 finalised your consideration?
21 MR. DJORDJEVIC: [Interpretation] Precisely.
22 JUDGE PARKER: Thank you very much.
23 I do now turn to you, Mr. Stamp. On the 16th of December it was
24 indicated by your colleague who was here that a motion to add two further
25 witnesses to the Rule 65 ter list was intended and that it would be filed
1 by mid-January. That has not yet occurred. Can you tell us what the
2 position is, please?
3 MR. STAMP: We are in the process now of discussing the
4 availability of the witnesses with the witnesses, and we have, in so far
5 as at least one of those witnesses is concerned, we have now come to a
6 position; and we propose to file that motion within the next few days.
7 But we were not able to conduct the inquiries we wanted to conduct
8 because of the period we were in, which was immediately followed by the
9 Serbian Orthodox holiday period. Those inquiries have been conducted,
10 and we're in a position to formally move the Court in respect of these
12 JUDGE PARKER: Thank you. You will appreciate that it would be
13 to the advantage of everybody if we can get matters such as the witness
14 list resolved and clear so that both Prosecution and Defence as well as
15 the Chamber can proceed with a certain knowledge that witnesses will be
16 called or will not be called.
17 MR. STAMP: All right.
18 JUDGE PARKER: We look forward to your motion in respect of one
19 of those witnesses at least in the very few days.
20 MR. STAMP: Very well. We shall do that. And since I'm on my
21 feet in respect to this matter, I should advise the Court that we may -
22 we may - seek to file within the next couple of weeks in addition to that
23 another motion in respect of two or three other witnesses that we have
24 been trying to speak to, but again we were delayed because of the
25 vacation period. But when that time comes, Your Honour, we will advise
1 the Court, if and when it comes. However, with respect to those two
2 mentioned by my learned friend on the last occasion, we will file within
3 the next few days.
4 JUDGE PARKER: Thank you, Mr. Stamp. You already have the
5 Chamber's indication that it would like these issues to be resolved
6 quickly --
7 MR. STAMP: Very well, Your Honour.
8 JUDGE PARKER: -- and you will readily appreciate that the more
9 we get into the trial, before you move a motion to have an additional
10 witness or several added, the more there is a possibility that there
11 could be a difficulty created by your motion. So it's in the
12 Prosecution's interest to move quickly in this matter.
13 MR. STAMP: Indeed, Your Honour.
14 JUDGE PARKER: Thank you.
15 Now, there are some motions that are outstanding. I see that you
16 would like to speak, Mr. Djurdjic.
17 MR. DJURDJIC: [Interpretation] Your Honour, I would like to
18 respond to what my learned friend Mr. Stamp has said by way of an
19 explanation and also to resolve a problem that has cropped up, and that
20 pertains to the new witnesses that Mr. Stamp has been talking about, the
21 new witnesses that should be included on the Prosecution witness list.
22 The Prosecution has been pressuring witnesses who are not on the
23 65 ter list. Those witnesses were invited for an interview in the course
24 of October 2008. They responded to the summons, and they told the
25 Prosecution that they did not want to appear as Prosecution witnesses but
1 as Defence witnesses. They were willing to conduct an interview with the
2 Prosecution, but provided, the Defence is informed about it.
3 The Prosecution has failed to inform us about that, and I
4 understand that; but even after we talked to the witnesses, we still have
5 not heard from the Prosecution. And we feel that the Prosecution has
6 tried to wriggle out of the rules that exist here in such a way that it
7 sent a summons through the Tribunal asking for those witnesses to be
8 interviewed in accordance with the Serbian Law on Criminal Procedure,
9 which is substantially different from the Rules of Procedure of this
10 Tribunal. And witnesses are denied a number of rights, and there is a
11 different procedure for the interview, quite unlike the one when the
12 Prosecution is taking statements under the rules of the Tribunal.
13 On the 22nd and the 23rd of January of this year, the Prosecution
14 has sent a letter rogatory asking for those witnesses to respond to the
15 summons issued to them by the war crimes court in Belgrade, because they
16 wanted to take a statement. In accordance with the Serbian Law on
17 Criminal Procedure, a witness is bound to give a statement, although the
18 Rules of Procedure of the Tribunal grant the witness the right to decide
19 whether they want to be a Prosecution witness or a Defence witness.
20 And the Prosecution has failed to inform the Defence about the
21 wish of those witnesses to appear as Defence witnesses. Of those
22 witnesses who responded, one of them was on the Prosecution's 65 ter list
23 and three of them were not.
24 I think that the Prosecution is now trying to intimidate the
25 witnesses by resorting to this procedure, and although I think that the
1 Prosecution is not entitled to send letters rogatory to the Serbian
2 courts because these are two different courts and this is not judicial
3 assistance in accordance with the Serbian Law on Criminal Procedure,
4 efforts are made to summon those persons and to take statements from them
5 without the Defence being present. The Defence was not notified about
6 that. We were on route to The Hague
7 or such requests were issued. And those witnesses were heard by an
8 investigative judge of the district court in Belgrade, and I have yet to
9 learn about the outcome.
10 I think that the Prosecution has had enough time to decide which
11 witnesses to call and propose that they be heard, although, of course, we
12 do not propose their right to investigate further. It is, indeed, their
13 right. But if they want to talk to Defence witnesses, I think that they
14 have to talk to the Defence. The only binding order, according to the
15 rules of this Tribunal, is the one that is issued by the Trial Chamber;
16 and the Prosecution sent a request for judicial assistance to a judicial
17 organ of the Republic of Serbia
18 Tribunal, and the witnesses are duty-bound to respond to the summons and
19 to give evidence in accordance with the Serbian Law on Criminal
20 Procedure. And I think that this is something that should be discussed.
21 Thank you.
22 JUDGE PARKER: Mr. Stamp, are you able to throw any light on this
24 MR. STAMP: Yes, Your Honour. I think -- I'm not sure if here
25 and now we need to discuss what we propose to litigate later on and apply
1 to add certain witnesses.
2 But I think it is not appropriate to say that there is an attempt
3 to intimidate witnesses to give statements, when all that happened was
4 that a request was made of the war crimes chamber in Belgrade to
5 interview the witnesses. The witnesses have in the past - the few that
6 have been interviewed - have claimed they are Defence witnesses. There
7 is no Defence witness list before the Court at this point in time, and
8 the Defence list only is filed after the Prosecution's case close. I
9 think the jurisprudence of the Tribunal is that no party has ownership of
10 any person who is a witness to important material issues before the
12 So there is a history as to the efforts we have made to interview
13 these witnesses and to make them available to the Court so that the
14 entire truth could be -- and I think there is an indication that I'm
15 probably going a little bit too fast. I will slow down. So that all the
16 Court should hear about the matters before it, should be completely
18 We propose to file a motion asking that the Court add some of
19 these witnesses to the list, and we will set out the history. And I
20 think at that point in time, the matters could be ventilated.
21 As far as what my friend said just now is concerned, I'm not sure
22 what exactly he meant when he said "wriggle out" of obligations. But my
23 information from the war crimes court in Belgrade is that the defence
24 lawyers, or the chambers of the defence lawyers, were advised that these
25 persons were summoned to be interviewed, but they indicated that they
1 would not be available.
2 JUDGE PARKER: I take it from what you're saying, that any
3 interviewing procedure is taking place in Serbia by the war crimes
4 chamber --
5 MR. STAMP: That was how it --
6 JUDGE PARKER: -- of the Serbian court.
7 MR. STAMP: It was a procedure --
8 JUDGE PARKER: It is not a matter being undertaken by yourself or
9 the Office of the Prosecutor.
10 MR. STAMP: It was a request we had made for assistance from the
11 Serbian court that they undertake these interviews, since the witnesses
12 had refused to be interviewed by us.
13 JUDGE PARKER: Yes. And in due course, there will be or there
14 may be a motion in respect of some of these witnesses, for them to be
15 added to the list?
16 MR. STAMP: Indeed, Your Honour.
17 JUDGE PARKER: Thank you very much, Mr. Stamp.
18 Could I suggest, Mr. Djurdjic, that at this point, if there is
19 some failure to comply with the applicable Serbian law, that is a matter
20 that ought to be taken up with the Serbian authorities; that as far as
21 this Chamber is concerned, if the Prosecution moves to have a witness
22 added to its list, and it appears to the Defence that that witness is
23 affected in some way by some impropriety in the obtaining of the
24 statement or evidence of that witness, that that will be the time and
25 that will be the opportunity for the Defence to then put before this
1 Chamber its concern about what may have occurred in respect of the
2 interviewing of that witness.
3 At the moment there is no action which this Chamber could take or
4 would want to take. If it is that the Prosecution proposes to call that
5 witness, then of course if there is some matter affecting the propriety
6 of the statement or any statement obtained, the matter can then be put
7 before us and ventilated, and the Chamber will then be able to consider
8 whether there is some issue which requires decision or action, and of
9 course it has to decide, the Chamber that is, whether that witness should
10 be added to the list of Prosecution witnesses. And if there has been
11 some significant impropriety, that is a matter which this Chamber will
12 take into account in reaching its decision on the motion of the
14 So for the present moment it would appear that no action is
15 called for or would be appropriate by this Chamber; that the Prosecution
16 clearly has notice of your concern from what you have now said. And as I
17 have indicated, if the Defence has some concern at present about what is
18 being done in Serbia
19 with the Serbian authorities at this point.
20 When and if there is a motion before this Chamber concerning a
21 witness that's affected by this issue, then this Chamber will consider it
22 on the merits and take into account any matter which the Defence then
23 wishes to raise.
24 Is that clear enough for the moment?
25 MR. DJURDJIC: [Interpretation] Yes, Your Honour. But I'd just
1 like to say two things:
2 First, the chamber for war crimes, on the basis of a letter
3 rogatory from the Prosecution, insisting upon taking statements. So
4 their statements will be given even if we cannot, without your
5 assistance, suppress that kind of action on the part of the Prosecution.
6 The other way in which this can be done, in which statements can
7 be taken, is regulated and has been regulated thus far in the following
8 way: The Prosecution has the right to interview the person in Serbia
9 and the witness cannot refuse to testify if the laws are applied.
10 Otherwise, they would bring shame on them or whatever. So they are
11 compelled to comply with the Prosecution. That is why we think that the
12 rules and regulations of the Tribunal have been by-passed in that way.
13 Now, it's up to the Prosecution to decide whether they're going
14 to use the witness or not, but they will obtain a statement in a manner
15 which is impermissible in my view.
16 Now, according to Serbian regulations, the Defence does not have
17 the right to ask to interview a witness with a letter rogatory and force
18 them to make a statement so that the Defence could have a statement of
19 that kind. So I don't think we have equality of arms in that respect.
20 MR. DJORDJEVIC: [Interpretation] Your Honour, I would just like
21 to add --
22 JUDGE PARKER: Sorry, Mr. Djordjevic, could we have one matter
23 settled early on in this trial. If a counsel from the Defence or the
24 Prosecution raises a matter, the Chamber will hear that counsel about the
25 matter. We will not hear more than one counsel from each side about the
1 matter. So Mr. Djurdjic has been --
2 MR. DJORDJEVIC: I just wanted to clarify one very important
3 legal issue, and I will continue in Serbian.
4 [Interpretation] There's a problem in the fact that Serbia
5 duty-bound to cooperate with The Hague as a state in which many people
6 were taken to trial and were tried for war crimes and sentenced for war
7 crimes. And in that sense, Serbia
8 agreement has been signed to that effect, they are duty-bound to apply
9 the rules exclusively of The Hague Tribunal when dealing with The Hague
10 trials; and the only one there is Zvornik, the Zvornik case, under 11
11 bis, and everything - the protection of witnesses, security measures, all
12 sorts of security issues - are conducted according to the rules and
13 regulations of this Tribunal, not Serbian law. Thank you.
14 JUDGE PARKER: You will appreciate that we heard you then. From
15 now on, we will hear only one counsel on a particular matter.
16 MR. DJORDJEVIC: Okay.
17 JUDGE PARKER: Thank you.
18 There is no issue presently before this Chamber raising any
19 particular impropriety in the interviewing of any particular witness.
20 The jurisprudence of this Tribunal makes it very clear that there is no
21 ownership, if I can use that word, of a witness, and any party can
22 approach any witness and seek to obtain a statement from that witness; so
23 that the fact that the Prosecution is seeking to obtain a statement from
24 a person whom the Defence may intend to call is not in itself a matter
25 which gives rise to any impropriety under the procedures of this
1 Tribunal, as long as that is a matter which is clear in your mind.
2 When it comes to a proposal to lead evidence before this Tribunal
3 from a witness, if there is some issue affecting the honesty or the
4 reliability of that witness or if there is some procedural defect in the
5 way that witness's testimony has been prepared, those are matters which
6 will then be considered by this Chamber, to see whether it affects the
7 reliability of the evidence that it is proposed to lead. It is then that
8 any of the matters which you are now vaguely referring to would need to
9 be considered in detail by this Chamber.
10 So I say again: At this point, there is nothing for this Chamber
11 to deal with or to consider, but it may be in the future this issue will
12 arise in respect of one or more future witnesses. Thank you.
13 [Trial Chamber confers]
14 JUDGE PARKER: Can the Chamber move on to 92 bis motions. There
15 are three of those presently to be dealt with. The Defence has responded
16 to them but was also, on the 16th of December, given an opportunity to
17 make any further submission that the Defence wished to by the 26th of
19 Now, there have been no filings to date. If none are received by
20 the end of today, the Chamber would propose to deal then with the motions
21 on the basis of the submissions that have been received from the parties
22 to this time. I indicate that in case there is some difficulty of which
23 we are not aware. There seems to be no suggestion of that from counsel,
24 so that in the absence of any further submissions from the Defence, the
25 Chamber will proceed then to consider the merit of those three motions.
1 There is also a motion pursuant to Rule 92 quater, which is in
2 the same situation. Clearly it is in the interests of all parties for
3 these motions to be resolved promptly, and the Chamber will proceed to
4 deliver decisions as soon as possible about those.
5 At the hearing on the 16th of December, the Prosecution was
6 required to file a Rule 92 ter motion because it was clear from various
7 filings and submissions that the Prosecution contemplated utilising
8 Rule 92 ter but had not filed any motion to authorise it to do so.
9 On the 14th of January the Prosecution did file a Rule 92 ter
10 motion, and it appears to apply to some 61 witnesses. By the order of
11 the Chamber given on the 16th of December, the Defence is to respond to
12 that motion by the 2nd of December. We will look forward to the Defence
13 response --
14 MR. STAMP: February, I think.
15 JUDGE PARKER: What did I say? I said "December." I believe
16 everybody realised that I meant February. So you still have several days
17 to go, Mr. Djordjevic, before any response is required. It is the 2nd of
18 February, and in light of that response, the Prosecution's motion will
19 then be considered by this Chamber; and we will reach a decision in
20 respect of the proposal that Rule 92 ter be used in respect of 61
22 Now, today --
23 MR. STAMP: May I -- if Your Honour is about to move on,
24 Mr. President, may I interject briefly? If you're about to move on to
25 something else.
1 JUDGE PARKER: I was about to say that you filed a further motion
3 MR. STAMP: Very well, yes, Your Honour.
4 JUDGE PARKER: Is that what you had in mind or something else?
5 MR. STAMP: Something else.
6 JUDGE PARKER: Tell us what the something else is, Mr. Stamp.
7 MR. STAMP: Before we reach the motion of today, Your Honours do
8 have the authority under the rules to extend or deny the time -- change
9 the time for responding to motions.
10 You had said the 2nd of February for the response of the 92 ter
11 motions, but the trial, I think, we propose to start the trial, I think,
12 on Wednesday, the 28th, to start hearing evidence and also to hear
13 evidence on Friday, the 30th. The witnesses that are scheduled for those
14 days are witnesses who are subject to the application.
15 So the Prosecution -- I know it would -- might well present some
16 difficulty, but the Prosecution would ask that if a response and a
17 decision could be made in respect of those, just those two witnesses who
18 are scheduled for this week, who were listed also as 92 ter.
19 JUDGE PARKER: Mr. Stamp, my reaction would be to suggest this is
20 a problem largely of your own making. The motion was filed only because
21 the Chamber pointed out that action had not been taken and was needed.
22 MR. STAMP: Indeed. Indeed, Your Honour.
23 JUDGE PARKER: The Rule 92 ter motion could be moved much earlier
24 and that would have given the Defence an opportunity to respond much
25 earlier and a decision could have been given, but that wasn't done.
1 MR. STAMP: Indeed, Your Honour. The standard practice -- well,
2 I shouldn't say "standard." The practice in respect of 92 ter in
3 relation to witnesses that attend for cross-examination has been, at
4 least in the previous case that myself and most of the team were involved
5 in, that an indication would be given in a notice, I think it is two
6 weeks or a week before the witness comes to testify, and many times the
7 application would be done orally when the witness comes in front of the
8 Court to testify.
9 It was thought in those cases that it would not prejudice the
10 Defence if they were informed that this was the procedure to be adopted,
11 and the application was made at that time. And that is why we did not
12 file earlier, because we were adhering to the previous practice, the
13 practice that we have become accustomed to in respect of 92 ter. There
14 had been a difference in respect of 92 bis, where the witnesses were not
15 expected to attend at all, and the requirement had usually been that the
16 filing had to be done for all the witnesses, en masse, as early as
17 possible. But the practice in respect to 92 ter, respectfully submitted,
18 has been not exactly the same and that is why -- although I'm prepared to
19 accept responsibility for not contemplating filing a 92 ter motion
20 earlier, but that has not really been a practice before.
21 JUDGE PARKER: Mr. Stamp, I fear you may be, unconsciously no
22 doubt, falling into the danger, into the trap of thinking that because
23 something was practical in one trial, that that is the practice. It is
24 not the practice that has been followed in other Trial Chambers, and a
25 motion for a witness to have the evidence in the form of Rule 92 ter is a
1 standard motion contemplated by the rules, and in the ordinary course
2 that motion is moved well in advance of the witness being called and
3 usually well in advance of the Prosecution case commencing, as it is with
4 92 bis and 92 quater.
5 Clearly, some special consideration was given to the Prosecution
6 in the one case to which you refer. Now, this Chamber has had no reason
7 to contemplate any such special procedure, so we're back to trying to
8 conduct the trial in accordance with ordinary procedures. We have had a
9 motion now in January for 92 ter, and we now find some 61 witnesses are
10 contemplated to be dealt with on that basis. Because the trial is
11 starting before the Defence has had the ordinary opportunity to respond
12 to your motion, it could mean that two or three witnesses that you would
13 like to be -- have their evidence given under Rule 92 ter will not be
14 able to give their evidence that way because the Defence have yet to be
15 able to respond and the Chamber to consider your motion.
16 MR. STAMP: Very well. I --
17 JUDGE PARKER: If there was some special problem about that, we
18 might see whether the Defence were able to cooperate in making an earlier
19 response. But I don't gather from what you're saying that there's any
20 special problem. You just had not anticipated that things would move
21 quite as quickly as they have.
22 MR. STAMP: Indeed. And there is a problem of the time, the time
23 that we had indicated for the witnesses.
24 JUDGE PARKER: Well, that's going to bring us to another and a
25 bigger problem.
1 MR. STAMP: Very well.
2 JUDGE PARKER: I have not called upon the Defence at this point
3 over this issue because, as counsel will have heard, the position is that
4 we would expect that until the Defence has had its ordinary opportunity
5 to respond by the 2nd of February, we should not unnecessarily impose
6 upon the Defence to do something more urgently.
7 Now, if the Defence is content with that position, we'll leave it
8 like that. If the Defence wished to cooperate and say that it had no
9 objection to one or more of these early witnesses that are affected, the
10 Chamber would, of course, hear that and be prepared then to consider the
11 matter more urgently. But we are not wanting to press that matter upon
12 the Defence, and if you want to remain quiet and leave the matter as it
13 is, then these early witnesses will have to give their evidence in the
14 ordinary way, that is, orally; and we will deal with the 92 ter motion
15 after we have received the Defence's written response which must be filed
16 by the 2nd of February. I think the position is clear, and I don't call
17 upon the Defence at this stage.
18 [Trial Chamber confers]
19 JUDGE PARKER: I mentioned that today a further motion was filed
20 pursuant to Rule 92 ter by the Prosecution in respect of one further
21 witness. That will be dealt with in the ordinary course of the rules, on
22 its merits, once the Defence has had an opportunity to respond to that.
23 That brings me to the matter anticipated by your comment,
24 Mr. Stamp, the question of timing. I've been a little uneasy when I look
25 at your 65 ter witness list and annex A that was filed on the 12th of
1 December and the timings that are set out there in respect of the
2 evidence of each witness.
3 For the most part, the timings given appear to be given on the
4 basis that the witness would be called as a live witness, yet it's not
5 been altogether clear that that is the case. Many witnesses are listed
6 as "live/Rule 92 ter" and one timing given. There are two or three
7 witnesses only that are listed as "live," and their timings are not out
8 of the order for the timings of other witnesses. And the total estimated
9 length of the Prosecution's case in chief is then thought to be something
10 a little under 90 hours.
11 That left me, then, to think that the Prosecution case would be
12 very considerably shortened were its Rule 65 ter motion to be granted,
13 substantially or wholly because the Prosecution evidence in respect of,
14 now on that motion, some 60 witnesses would consist merely in calling the
15 witness and tendering a written statement, and the witness would then be
16 available for cross-examination.
17 Now, is my understanding correct, Mr. Stamp, that these times in
18 the 65 ter witness list were times contemplating the witness giving
19 evidence viva voce or not?
20 MR. STAMP: These times were times contemplated for the witnesses
21 giving evidence viva voce and according to 92 ter, in accordance with
22 Rule 92 ter. That's --
23 JUDGE PARKER: Now, that's an inconsistent statement, with
25 MR. STAMP: Some of the witnesses we propose to call and we
1 propose to tender the statements of these witnesses under Rule 92 ter as
2 a part of their evidence in chief. There is -- there will be other
3 matters, matters, some of them clarifications and some of them questions
4 probing areas that are more relevant in this case than they were in the
5 previous case in which these witnesses testified, that we'll also be
6 asking questions about. And the times for these witnesses are based on
7 that consideration, that we would --
8 JUDGE PARKER: Are you saying that you anticipated --
9 MR. STAMP: Yes.
10 JUDGE PARKER: -- that the witness would give evidence pursuant
11 to Rule 92 ter --
12 MR. STAMP: Indeed.
13 JUDGE PARKER: -- in setting these times?
14 MR. STAMP: Indeed, yes, Your Honour.
15 JUDGE PARKER: But this list was filed well before you made any
16 Rule 92 ter motion.
17 MR. STAMP: Before -- well before we made a 92 ter motion, we
18 were aware of which witnesses we were proposing or had intended to call
19 under 92 ter. I think when we filed our 65 ter witness list, we -- and
20 that would be in September, the original 65 ter witness list, we did
21 indicate the mode of testimony in respect to these witnesses, and those
22 that were 92 ter, with just a few exceptions, were indicated then.
23 In other words, the designation of these witnesses to be 92 ter
24 witnesses, or their mode of testimony to be pursuant to 92 ter, is not
25 something that is new in terms of our own consideration. We had from
1 early thought that these witnesses would be appropriate witnesses to --
2 whose evidence could be -- could be received under that rule.
3 JUDGE PARKER: You see the obvious problem, Mr. Stamp. You have
4 estimated the length of time the Prosecution case will take, witness by
5 witness; and yet until the matter was before the Chamber in December, no
6 step was taken toward any Rule 92 ter motion. So all these witnesses, if
7 they were not Rule 92 bis or quater witnesses, would be giving their
8 evidence orally. What you're now suggesting is that even though no step
9 had been taken to make use of Rule 92 ter, in your timing you had assumed
10 that the witness would be heard at least in part under Rule 92 ter.
11 MR. STAMP: Yes, Your Honour. That was the indication we made
12 when we filed the 65 ter summary; that the times for the witnesses that
13 were designated as Rule 92 ter would be -- were indicated for those
14 witnesses. And when I say "the Rule 65 ter summary," I mean our
15 Rule 65 ter witness list that we were obliged to file in September last
17 JUDGE PARKER: Well, you appreciate that until and unless an
18 order is made by the Chamber allowing a use of Rule 92 ter, a witness's
19 evidence must be given orally.
20 MR. STAMP: Indeed, Your Honour. And I believe -- not "believe,"
21 I am sure that in the filing under Rule 65 ter in September, we indicated
22 that the estimates here were based on an -- based on an expectation or an
23 anticipation that the Rule 92 ter motions would be accepted by the Court.
24 And to the extent that they were not accepted, we would need to revise
25 the estimated time for the Prosecution case.
1 JUDGE PARKER: You believe that was in your filing?
2 MR. STAMP: In the 65 ter filing of September.
3 JUDGE PARKER: I see. Well, I'm afraid it hasn't come to my
4 attention that that was there.
5 MR. STAMP: Yes.
6 JUDGE PARKER: But we are now in the position where the time
7 estimate for the Prosecution case is now subject to a very big question
9 MR. STAMP: Indeed, Your Honour.
10 JUDGE PARKER: And it will depend very much upon the outcome of
11 the Rule 92 ter motion, as well as the Rule 92 ter bis and quater
12 motions, none of which are resolved --
13 MR. STAMP: Indeed, Your Honour.
14 JUDGE PARKER: -- just how long the Prosecution case will
15 actually take to lead its evidence in chief.
16 MR. STAMP: If the motions are not resolved in our favour, is
17 that the question being asked?
18 JUDGE PARKER: Yes.
19 MR. STAMP: I would anticipate that we would need to add
20 approximately 80 percent of the time that we have indicated here.
21 May I just add that I have had the benefit of the use of modern
22 technology, and I'm now reminded that we were advised, or we were
23 instructed by the Pre-Trial Judge not to file a 92 ter motion until a
24 Bench, a Trial Bench, had been set up to hear the case.
25 JUDGE PARKER: You will also appreciate, Mr. Stamp, that the use
1 of Rule 92 ter in practice has the effect that cross-examination needs to
2 be longer than it would otherwise be.
3 MR. STAMP: Yes, Your Honour.
4 JUDGE PARKER: And you're now proposing over 60 witnesses, that
5 is, over half of your witnesses, to be led under Rule 92 ter. What is
6 concerning the Chamber very much is that the estimates of the length of
7 the trial appear now to be quite unreliable and that we must revise
8 considerably the time that had been anticipated for the leading of
9 evidence, and it must be anticipated with the extensive use of
10 Rule 92 ter that the total length of time to hear the evidence of the
11 Prosecution, including cross-examination and re-examination, is going to
12 be very considerably greater than the estimate that had been previously
14 MR. STAMP: Much as we indicated in the filing, and I'm sorry to
15 keep harping back to the filing under 65 ter in September, much really
16 depends on how the Court receives our application under Rule 92 ter and
17 92 bis. We believe that to the extent that the Court accepts the
18 application, we can present the Prosecution's case in the time we have
19 allocated here.
20 However, I do accept that if you add the time that the Defence
21 may spend -- and that is something that is completely -- well, I would
22 not say completely out of our control, but that is something we even
23 purported to give an estimate to as to how much time the Defence would
24 spend with each witness, then for the case in total, the trial in total,
25 there would be a substantial increase in the time.
1 But I think we can only give a reasonable assessment or
2 reasonable estimation of what the Prosecution's case in chief would be,
3 and we believe that this assessment -- this estimation we can abide by,
4 pending the decision in respect to Rules 92 ter, 92 quater, and 92 bis.
5 JUDGE PARKER: Well, we can't take this matter any further at the
6 moment, Mr. Stamp, I don't believe, except to express our grave concern
7 that the trial is likely to last a significant period of time longer than
8 had been anticipated in the pre-trial proceedings.
9 The Chamber will deal with the Prosecution motions under 92 bis,
10 ter, and quater, as promptly as it can. It must, though, give due and
11 proper consideration to the concerns, if any, that are raised by the
12 Defence; and it will have to be looking at each proposed witness
13 individually in coming to a decision. And your motions now under those
14 three rules affect something in the order of 100 witnesses, so that
15 there's quite a little task there.
16 MR. STAMP: Yes, yes.
17 JUDGE PARKER: And it's only after they're resolved that we'll be
18 able to get some more reliable indication of the anticipated length of
19 trial. The Prosecution case is one issue. Of course, the Defence must
20 also be given a proper and reasonable opportunity to question each
21 Prosecution witness. That is an essential attribute of our procedure.
22 And for that reason, the Chamber must be prepared to allow reasonable and
23 proper time to the Defence for their cross-examination.
24 The Chamber will be watching time very closely, both the time the
25 Prosecution takes with the witness and the time the Defence takes. But
1 we can't impose some artificial short time on the Defence simply, for
2 example, because the Prosecution has been able to have the advantage of
3 Rule 92 ter or Rule 92 quater; okay?
4 MR. STAMP: That is entirely understandable, Your Honours. I
5 think the length of Defence cross-examination, their right to
6 cross-examine, is something entirely within the discretion of the
7 Chamber, and we will abide by any ruling the Chamber makes in that
9 JUDGE PARKER: Let it be very clear that this Chamber will be
10 careful to allow the Prosecution witnesses to be cross-examined by the
11 Defence to the extent that it is reasonable and proper. If time, of
12 course, is being used unnecessarily, we will deal with that. But the
13 total effect of all of this is the likelihood that the case will take
14 much longer than anticipated and that is a matter of disappointment and
15 concern at this time.
16 Thank you about that matter, then, Mr. Stamp.
17 Can I turn now to agreed facts. Following the hearing on the
18 16th of December, the parties have filed a joint submission on agreed
19 facts and a list of agreed documents. The Chamber is grateful for that
20 and that will enable a limited number of documents and a limited number
21 of factual issues to be dealt with without additional evidence being led
22 about them.
23 The joint submission was filed, I believe, on the 19th of
24 January. The Chamber will request the Registry Officer to assign exhibit
25 numbers to each of the documents in annex A of the parties' joint
1 submission of the 19th of January, so that each of those documents that
2 are agreed will now become exhibits. And the document which is annex B
3 of the joint submission of the parties of the 19th of January, that is,
4 the list of agreed facts, will also be given a separate exhibit number so
5 that there will be a ready basis of reference to that as there is need
6 for that during the trial.
7 Now, that will be a matter conveniently done by the Registry
8 Officer after this Pre-Trial Conference is concluded and the
9 Registry Officer can inform all parties and the Chamber of the exhibit
10 numbers when that process has been completed.
11 There was a question, Mr. Stamp?
12 MR. STAMP: I don't know. Perhaps you, Mr. President, were about
13 to move on to what I wanted to raise and that is the issue of the
14 numbering of the exhibits. The Prosecution had asked that this matter be
15 placed on the agenda. We seek to be able to consult with the
16 Registry Officer, of course in conjunction with the Defence, in respect
17 to the exhibit numbers. For most of the agreed documents, which are
18 documents on the Prosecution's exhibit list, the Prosecution had given
19 them numbers and we would seek, if at all possible, and we think the
20 technology permits that, that they retain the same numbers. And that is
21 because, Your Honours will no doubt be aware, that the Prosecution will
22 move in the course of the trial to use a tremendous amount of documents,
23 a huge amount of materials, statements and transcripts, from the
24 Milutinovic et al trial, and without a doubt the Defence, probably, will
25 be cross-examining witnesses and will make use of those transcripts. And
1 the proposal of the Prosecution is that it would be much easier for
2 purposes of cross-reference if the exhibit numbers remain the same. And
3 I say this primarily because of the huge mountain of documents that we
4 are likely to have to deal with.
5 If the exhibit numbers do not remain the same, then when a
6 reference is made to an exhibit in this case, there will be much
7 difficulty finding it in the other case.
8 If, for example, the Defence seeks to cross-examine using a
9 document from the previous trial, the Milutinovic et al trial, there will
10 be many references to exhibits in that case, and to find those exhibits,
11 to cross-reference those exhibits, will be much more difficult if they
12 had different numbers for this case.
13 So that is a request I make, and my understanding is that at
14 least where the technology is concerned, that it could be accommodated.
15 But it's a matter, really, up to the directions and instructions of the
17 JUDGE PARKER: Mr. Djordjevic, does the Defence wish to put any
18 submission in respect of the proposal of the Prosecution, which is in
19 effect to use the exhibit numbering that was used in another trial, in
20 the Milutinovic trial?
21 MR. DJORDJEVIC: [Interpretation] As the Chamber is well aware,
22 the Defence has much less experience in terms of how to proceed when it
23 comes to issues that are primarily in the purview of the Registry, but
24 you may expect the Defence to be cooperative on all those issues. That's
25 it. Thank you.
1 JUDGE PARKER: Thank you.
2 Could I indicate, Mr. Stamp, that this proposal is one which
3 gives rise to considerable concern. This trial is a distinct and
4 separate trial from any other that has been held. If we were to use
5 exhibit numbers that were used in another trial, it would mean that the
6 record of this trial would become extremely confusing.
7 It is possible with the technology to cross-reference with an
8 exhibit in this trial with the exhibit number given in another. But if
9 you think about the course of evidence in this trial, a witness is called
10 and gives evidence and a number of documents or other exhibits are
11 tendered through that witness, the ordinary coherent record would give a
12 progressive number of -- would give progressively numbers of that
13 evidence. And if one comes then to look at exhibits relating to that
14 witness, we would normally follow a coherent listing of numbers. What
15 you propose would mean that we might have - I don't know the number of
16 exhibits in the Milutinovic trial, but I know it's in the thousands - we
17 might find that of those, only, say, 20 percent were used in this trial.
18 We might find we have Exhibits 10, 50, 483, 950, 1420, and the in-between
19 numbers were simply not used. It would be completely strange as that
20 when one came to look at the record of this trial.
21 It would produce administratively a great deal of difficulty for
22 the Registry in the conduct of the -- in the keeping of the records of
23 this trial.
24 What is feasible, for example, would be to say, Exhibit 1 in this
25 trial, Exhibit 2, 3, in the ordinary way, but to include immediately in
1 the written identification of that exhibit a number, say an M number,
2 which is the exhibit number given to that document or exhibit in the
3 Milutinovic trial. So Exhibit 1 in this trial might also be referenced
4 as M2028.
5 Now, we don't propose today to make a final order about that but
6 to indicate that there is very considerable difficulty with what you
7 propose. We feel that it is going to be unlikely to be in the overall to
8 the advantage to the conduct of this trial to follow what you propose,
9 even though there could be some advantages when it comes to
10 cross-referencing. We would ask you, therefore, to consider and to
11 discuss with Defence counsel the question of using cross-referenced
12 numbers while not disturbing the ordinary pattern of exhibit numbers in
13 this trial, and for you to consider and put to us whether you see any
14 particular difficulty with that.
15 We recognise that there are advantages to be had in enabling a
16 ready cross-reference between the documents in this trial and the
17 documents in the Milutinovic trial. But we do not want to get into the
18 position of having effectively an incoherent record in this trial simply
19 because it makes it easier for counsel, as the case is progressing, to
20 use numbers from another trial.
21 Do you see the issue?
22 MR. STAMP: Yes, I see the issue.
23 JUDGE PARKER: And would you --
24 MR. STAMP: Yes, I would have those discussions.
25 JUDGE PARKER: Have the discussions and then raise it again. We
1 may need to deal with it pretty early on because this could arise with
2 the first witness even. But for the moment, the Chamber is not in favour
3 of the idea that it should use the numbers from another trial as its
4 record in this trial of exhibits.
5 MR. STAMP: Yes. I understand the position taken by the Court,
6 or the suggestion, and I will consult as early as possible with my friend
7 to try and find the best way we could recommend to the Court.
8 May I just say, without belabouring the point, that it would make
9 extraordinarily difficult reading if the transcripts from the Milutinovic
10 case were received in evidence here, and there are references to exhibits
11 in those cases. When one is reading the transcript from that -- from
12 that case, it would be quite difficult what exhibits they're speaking
13 about as they relate to this case, unless they have the same numbers.
14 But I will follow the recommendation of the Court and see if --
15 JUDGE PARKER: I think it's going to become very important to get
16 out from under the shadow of the Milutinovic trial. We are conducting
17 this trial of this accused, and we want to do that in an efficient and
18 coherent way. So that needs to be kept in mind.
19 MR. STAMP: Very well. As it pleases you, Mr. President.
20 JUDGE PARKER: The disclosure under Rules 66 and 68, there were
21 still some 15 to 20 translations which were to be completed, it was
22 hoped, by mid-January, from what was said by Prosecution counsel at the
23 December hearing. Now, have those translations been received and have
24 they been disclosed to the Defence, Mr. Stamp?
25 MR. STAMP: We have received some of them, Mr. President, and all
1 those that have been received have been disclosed. We have not received
2 all of them yet.
3 JUDGE PARKER: Are you able to say how many?
4 MR. STAMP: I think less than -- I think less than 15. As a
5 matter of fact, I'm sure it's less than 15, but I could --
6 JUDGE PARKER: Well, it was only 15 to 20 in December, so I hope
7 it's well less than 15 by now, Mr. Stamp.
8 MR. STAMP: I'm afraid, I must confess, I don't recall the
9 precise number in December. But I did make an inquiry, which has been
10 confirmed now, that the -- that we have disclosed what we have and those
11 were five. We have disclosed five documents that were received back from
12 the CLSS section. We did ask that these documents be done urgently and
13 be made available at the beginning of January, and they indicated that
14 they would make their best efforts to do so. They have managed to get to
15 us five and --
16 JUDGE PARKER: And when were they received?
17 MR. STAMP: They were received in the course of this month, this
18 year, and disclosed immediately upon reception.
19 JUDGE PARKER: Have you made inquiries about the balance?
20 MR. STAMP: Indeed, Your Honour. The CLSS is endeavouring to get
21 them to us as soon as they can, having regard to their responsibilities
22 in respect to other cases. I'm sure Your Honours know, probably I don't
23 need to say this, that we have very little, if any, control over the
24 CLSS -- CLSS, and they are under huge stress having regard to the amount
25 of trials running at this particular point in time. I do know that in
1 respect to the forthcoming witnesses, whatever were received have been
3 JUDGE PARKER: Do we take it that none of these documents affect
4 witnesses that are likely to be called in the next few weeks?
5 MR. STAMP: None of them. I'm told that none of them will affect
6 witnesses for approximately the next month. But by the time that time
7 runs, we expect that the CLSS section of the Tribunal will have provided
8 us with the balance, with the remainder, of the documents.
9 JUDGE PARKER: The Chamber would be grateful, Mr. Stamp, if you
10 could renew the request to the translators for those documents to be
11 translated as quickly as possible.
12 MR. STAMP: I will do my utmost in ensuring that that is done.
13 JUDGE PARKER: Thank you very much, Mr. Stamp.
14 Now, there were six witnesses who were affected by delayed
15 disclosure orders. Have the materials pertaining to those six witnesses
16 now been disclosed to the Defence?
17 MR. STAMP: Yes, Your Honour, under the --
18 JUDGE PARKER: They have? Thank you.
19 MR. STAMP: Thank you.
20 JUDGE PARKER: Are there any other issues concerning disclosure
21 that you would want to raise, Mr. Stamp?
22 MR. STAMP: May I have a moment?
23 JUDGE PARKER: Yes.
24 [Prosecution counsel confer]
25 MR. STAMP: Your Honour, thank you. There were some documents
1 from a Rule 70 provided that we could not disclose under the rules
2 because we did not have clearance. We have now obtained clearance, and
3 they will be disclosed to the Defence as soon as possible. That's the
4 only thing I have to say in respect to disclosure, vis-a-vis disclosure
5 under Rule 68.
6 In respect to the six witnesses affected by disclosure orders, I
7 should add that there is Witness K91 who -- who I don't think it came
8 within the question you asked, but I am just adding that there is one
9 witness for whom there has not been disclosure, and that is because the
10 order was that the material be disclosed 30 days from testimony. But
11 Your Honours had asked about those that were to be disclosed 30 days
12 before the start of the trial, and all of those --
13 JUDGE PARKER: And those you are not anticipating calling within
14 the next 30 days.
15 MR. STAMP: No, Your Honour. We will disclose according to the
17 JUDGE PARKER: Thank you for that, Mr. Stamp.
18 MR. STAMP: Thank you, Your Honour.
19 JUDGE PARKER: Mr. Djordjevic, is there any matter concerning
20 disclosure that the Defence would wish to raise?
21 MR. DJORDJEVIC: [Interpretation] Thank you, Your Honour.
22 Well, here goes. We have made a note regarding this issue. I
23 did it with the assistance of my team. As regards the disclosure, I
24 would like to say very briefly when it comes to the disclosure related to
25 related cases, to this date the Defence has not received documents from
1 related cases whose disclosure was ordered by the Trial Chamber.
2 First of all, we have yet to receive materials from the Haradinaj
3 case and disclosure was approved and ordered on the 5th of March, 2008
4 almost a year ago. We have yet to receive materials from the
5 Milutinovic et al case. Pursuant to the decision of the Trial Chamber of
6 the 9th of September, 2008, regarding the materials from the 9th of July
7 onwards. I would like to make a brief note here, the testimony of
8 General Dimitrijevic and all the final unredacted briefs, the closing
9 arguments, the closing briefs of the Defence, so that would be all for
10 now. I will keep an eye on that. Thank you.
11 JUDGE PARKER: Thank you.
12 Mr. Stamp, Haradinaj and Milutinovic documents, would you like to
13 indicate the position in respect of those?
14 MR. STAMP: I don't want to appear as if I'm ducking,
15 Your Honour, but I do believe that the disclosure of those, according to
16 the court order, was supposed to be conducted by the Registry, and we
17 would not be responsible to -- my understanding is that that is for the
18 Registry to disclose.
19 [Trial Chamber and registrar confer]
20 JUDGE PARKER: Does that accord with your understanding,
21 Mr. Djordjevic, that that was to be provided by the Registry?
22 MR. DJORDJEVIC: [Interpretation] I apologise. Yes, the Registry
23 was supposed to do that. Let me clarify that, if that was not clear. My
24 colleague Mr. Stamp is correct.
25 JUDGE PARKER: I think that the spirit of cooperation between
1 counsel is already growing. I have had a few brief words with the
2 Registry Officer. She will raise the matter and will be in touch with
3 you, Mr. Djordjevic, as quickly as possible to let you know the position.
4 Mr. Stamp, I believe I am keeping you busy, but we better get
5 those sorted. Expert reports, where are we with those with respect to
7 MR. STAMP: I believe there have been -- they have all been
8 disclosed. I think that there was one outstanding translation in respect
9 to the report of some supporting material for the report of Mr. Phil Coo.
10 But that matter might have been settled. I'm afraid, Your Honour, I
11 don't have the response of that one, off the bat, as it were. But I do
12 know that the materials in general had been disclosed, and they were
13 subject to various -- to motions by the -- by the Defence and responses
14 by the Prosecution.
15 JUDGE PARKER: [Microphone not activated]
16 THE INTERPRETER: Microphone, please.
17 JUDGE PARKER: This has come to my attention today, Mr. Stamp,
18 because there are motions affecting two expert witnesses, objections
19 raised by the Defence to the propriety of two proposed witnesses being
20 called as experts, and the problem is that the Chamber does not have the
21 reports of either of those experts and has no means of access to them at
22 the moment; so that we are not effectively able to deal with that
23 objection until they are obtained. And that is in particular what led me
24 to raise with you the question of whether there had been disclosure of
25 the expert reports to date.
1 MR. STAMP: All the reports, those two and the other five have
2 been disclosed to the Defence, and I believe would have been part of a
3 filing that would have -- that this Court would have been seized upon.
4 But I could check and make sure that they're available to the Court.
5 JUDGE PARKER: I think you may find that neither of the expert
6 reports that are subject to objection have been filed with the Chamber,
7 and that needs to occur if we are to deal with the objections to those
8 two persons being called as experts which are raised by the Defence. You
9 will attend to that?
10 MR. STAMP: I will attend to that.
11 JUDGE PARKER: Thank you. We would be grateful.
12 MR. STAMP: Thank you, Your Honour.
13 JUDGE PARKER: Could I -- while we're on that theme, there are a
14 number of difficulties being experienced by the Chamber in respect of
15 your 92 ter motion, looking at it, because we are not able to locate on
16 e-court the statements of these proposed -- or a number of these proposed
17 witnesses. The statements are not included in the 92 ter motion. We
18 have, therefore, had to turn to e-court to try and identify the
19 statements of each witness, and quite a number of them still have not
20 been uploaded into e-court, it would appear.
21 MR. STAMP: I was advised that this situation obtained last week,
22 early last week, and I did what was necessary, or what I thought was
23 necessary, to ensure that they were all uploaded, whatever was missing
24 was -- was supplied. And I was told on Thursday of last week, I believe,
25 or maybe it was Wednesday, that they had all been uploaded. The missing
1 few, or maybe more than a few, had been uploaded by Thursday or Wednesday
2 of last week. Again, I will have to check if that is not the case.
3 JUDGE PARKER: Thank you. Could you please liaise with the legal
4 officer of the Chamber, and if you believe all have been uploaded, you
5 may be able to then assist in locating them.
6 MR. STAMP: Very well, Your Honour.
7 JUDGE PARKER: Thank you very much.
8 There is the matter of the progress of the trial. The immediate
9 matter is that tomorrow morning at 9.00, the trial is listed to commence,
10 and there will be then an opening statement made by the Prosecution.
11 The Chamber would mention that the rules would allow for an
12 opening statement to be made by the accused to follow the opening
13 statement by the Prosecution. While the rules allow that, we point out
14 that it is in no way obligatory for that to occur tomorrow, and it is a
15 practice followed in many trials for the accused to delay making an
16 opening statement by counsel until the commencement of the Defence case.
17 The option is there, and we point out that it is an option to be
18 considered by the Defence, and we just wanted to be clear that you are
19 not obliged to do so tomorrow.
20 MR. DJORDJEVIC: We already considered all that, Your Honour. I
21 will continue in B/C/S.
22 [Interpretation] Your Honour, the Defence has decided to present
23 its opening statement right at the beginning of the Defence case, so we
24 will not do that tomorrow. However, the Defence would like to notify the
25 Prosecution and the Trial Chamber that our client, the accused
1 Djordjevic, would like to present a statement in accordance with Rule 84
2 bis of the Rules of Procedure and Evidence. I don't think that it will
3 take more than 45 minutes to an hour.
4 JUDGE PARKER: I'm just a little unclear what you're intending to
5 convey there, Mr. Djordjevic. Are you saying that when the Defence case
6 commences, your client proposes to make a statement, or are you saying
7 that your client proposes to make a statement at the close of the
8 Prosecution opening?
9 MR. DJORDJEVIC: [Interpretation] Our client, in accordance with
10 the provisions of Rule 84 bis of the Rules of Procedure and Evidence of
11 this Tribunal, intends to present his statement tomorrow, after the
12 Prosecution has completed its opening statement. The Defence will
13 present its opening statement at the beginning of its case. Thank you.
14 I think that now I've made myself clear.
15 JUDGE PARKER: Thank you. You realise that it is a matter for
16 the Chamber, whether that may occur tomorrow, the opening statement by an
17 accused, and the statement also is under the control of the Chamber as to
18 time. So an opening statement by an accused of some three quarters of an
19 hour is a most unusually long opening statement, so keep that in mind
20 overnight, if you would.
21 MR. DJORDJEVIC: [Interpretation] Thank you.
22 JUDGE PARKER: Now, is there any other matter, Mr. Stamp, that
23 you would wish to raise before the commencement of the trial?
24 MR. STAMP: No, Your Honour.
25 JUDGE PARKER: Thank you.
1 MR. STAMP: Thank you very much.
2 JUDGE PARKER: Mr. Djordjevic, is there any other matter that the
3 Defence would wish to raise before the commencement of the trial.
4 MR. DJORDJEVIC: Thank you, Your Honour.
5 [Interpretation] The first thing that the Defence would like to
6 note, and we believe that it should be established now at the
7 Pre-Trial Conference, is the 24-hour notice for cross-examination
9 Bearing in mind the practice before this Tribunal or
10 jurisprudence, let me refer to some cases - Milutinovic, Perisic,
11 Popovic, Prlic, Gotovina, Lukic, Dragomir Milosevic, Haradinaj, Martic,
12 Naletilic and Martinovic, Blagojevic and Jokic, Halilovic - I believe
13 that in this case too there should be a clear agreement about the time,
14 the deadline, for the submission of documents to be used in the course of
15 cross-examination, and I think that a period of 24 hours is quite usual
16 and sufficient for all parties to the proceedings.
17 I have some other references about the relevant cases, but I
18 don't want to quote them now because I think what I've said is quite
19 sufficient. Thank you.
20 JUDGE PARKER: What you're really saying is that you felt that
21 48 hours was too long and you'd like that time reduced to 24? Is that
22 the point you're making?
23 MR. DJORDJEVIC: Defence would -- Defence would like to request
24 amendment of the order by the Trial Chamber in relation to the 24 hours'
25 notice for documents to be used in cross-examination. That's what I
1 thought. Almost all cases at this Tribunal have notice times for
2 cross-exam documents and the oath of the witnesses thereafter. Many by
3 direction or only practice will allow these documents to be notified and
4 released at the close of direct and at the start of cross-exam. The
5 cases that have followed a rule allowing cross documents notice after the
6 oath are the cases as follows, I mentioned already.
7 JUDGE PARKER: Yes.
8 MR. DJORDJEVIC: So that's what I'm thinking about on that.
9 JUDGE PARKER: You realise, Mr. Djordjevic, that this was a
10 matter considered on the 16th of December. We heard submissions at that
11 time. The practice does vary from case to case, and it has in particular
12 been shorter in cases of multiple accused, where there are several
13 accused. The practice is some trials is much longer than 48 hours.
14 Forty-eight hours has been used in a number of trials where there
15 is a single accused or just, say, two accused, and it has worked very
16 effectively. It's a matter of balancing competing interests. If the
17 time is kept too short, there is not time enough for the other party to
18 give consideration to re-examination in respect of the document; and we
19 lose time, then, because they are compelled to ask for an adjournment so
20 that they can consider the matter further. It's a matter of balancing
21 fairness and convenience.
22 Now, the experience that I have had over some five years has been
23 that 48 hours for a trial in particular where there is only one accused
24 has worked very effectively, and once both parties get used to it, they
25 have been able to manage that, and it has proved practical and fair.
1 Can I suggest that we continue as ordered on the 16th with
2 48 hours? If the parties find that that is producing particular
3 difficulty, raise the matter again, pointing out the difficulty that is
4 being presented, and the Chamber can then see whether it should vary its
5 order. But our experience to date would suggest that 48 hours is
6 practical and is fair and works in very many trials.
7 MR. DJORDJEVIC: [Interpretation] Yes, I'll accept that,
8 Your Honour.
9 The second thing that I wanted to raise on behalf of the Defence
10 and to ask the Trial Chamber is this: Bearing in mind the seriousness
11 and complexity of the trial, if at all possible, could we sit four days a
12 week, so that one day would be free for the Defence, and I assume the
13 other side, too, to consider what has taken place and to consider what
14 needs to be done in future, the writing of motions and regular
15 proceedings and jobs. So that's what we'd like to raise now at this
16 Pre-Trial Conference, that we sit four days a week, if that is at all
17 possible. Thank you.
18 JUDGE PARKER: Mr. Stamp, have you any submission?
19 MR. STAMP: That is a matter I leave in the hands of the Court
21 JUDGE PARKER: Thank you.
22 [Trial Chamber confers]
23 JUDGE PARKER: The Chamber, in dealing with this last submission,
24 Mr. Djordjevic, bears in mind that the normal is for a trial to be
25 conducted five days a week, and that is the normal procedure in this
1 Tribunal. There are situations where that is not convenient and that
2 depends upon each particular trial, counsel, and Judges. The majority of
3 trials do sit five days a week, and that has been the experience which I
4 have generally followed in my time here.
5 One glaring and obvious consequence of sitting only four days a
6 week is that the trial takes longer by 20 percent if that is done, which
7 means the accused has to spend that longer time uncertain as to the
8 outcome; and it means then that the trials of other accused are delayed
9 by that time.
10 Now, the Chamber does realise that in the course of any trial
11 there could well arise a situation where it's clear that because of
12 particular complexity or difficulty at a stage of the trial, that some
13 delay is necessary in the interests of justice. And this Chamber would
14 always be open to that situation and providing for some shorter sitting
15 period if there is a particular difficulty. There will also be occasions
16 when a witness may not be available or some other difficulty, so that we
17 won't be able to sit five days a week.
18 At the beginning of this trial because so many other trials are
19 sitting, we are only able in February to sit four days a week, although
20 that one week we sit three, another week we sit five days, and the other
21 two weeks we sit four days. But that is likely to change during March
22 when we will -- we expect to be able to sit five days a week.
23 This is a trial of one accused, which means that for counsel, it
24 is less difficult than, for instance, if there were five or six accused
25 in the one case. When those matters are weighed, it's the Chamber's view
1 that it is preferable on balance to sit for the normal sitting hours of
2 five days a week as much as possible in the trial, and we would propose
3 to follow that as the normal course.
4 We expect that at some time or another that will not be possible
5 and that it will be necessary to take an extra day or two off in the
6 interests of justice to allow a more logical presentation of witnesses,
7 to allow difficulties with witnesses to be overcome, to allow for health,
8 to allow for pressures of particular issues in the trial. But we would
9 ask all counsel to recognise that it is in the interests of the accused
10 and in the interests of the efficient working of this Tribunal and the
11 interests of those accused whose trials are waiting to start, for us to
12 try and conclude this trial as quickly as fairness allows, and that's
13 what we would propose to do.
14 Is there any other matter, Mr. Djordjevic?
15 MR. DJORDJEVIC: [Interpretation] Judge, my associates drew my
16 attention to something and that is disclosure, so I'd like to go back to
17 that for just a moment and mention that part of the material is expected
18 from the Registry, whereas the other part of the material should be
19 disclosed through the Registry but from the Prosecution. So this is what
20 I wanted to raise.
21 And with the Trial Chamber's permission, the accused would like
22 to address the Court, with your permission, and that would be all. Thank
24 [Trial Chamber and registrar confer].
25 JUDGE PARKER: With the first matter that you've raised,
1 Mr. Djordjevic, if there is some practical issue over some of the
2 material to be disclosed, whether it is with the Registry or with the
3 Prosecution, could I ask that you discuss that matter with Mr. Stamp, and
4 I would hope by that means that that practical difficulty will be sorted
6 The accused, you say, would like to say something to the Chamber.
7 We certainly would allow that, but it must be recognised we are very
8 close to the end of our present tape, so that I trust that what it is to
9 be said is short. Otherwise, we will need to adjourn for half an hour
10 and then return because the tape must be rewound. So if there is some
11 short matter which the accused wishes to mention now, he certainly may do
12 so, turning on his microphone before he speaks.
13 THE ACCUSED: [Interpretation] Your Honours, I have a problem
14 linked to the use of the computer in the Detention Centre, the computer
15 assigned to me. When they gave me a computer, they just allowed me the
16 possibility of using the CD audio-recordings there, the cassettes; but I
17 have over a hundred cassettes already, so that's a problem for me.
18 Now, my Defence, all the documents it uses, my Defence have
19 placed on a hard disk, and the only possibility for me to be of
20 assistance to the Defence, and thereby to help myself is, if possible,
21 that all the material on these external hard disks be introduced into the
22 computer as has been done for the other detainees in the Detention Unit.
23 I wrote to the administration of the Detention Unit about this,
24 and so has my Defence counsel, but I haven't received a positive answer
25 yet. So I'd like to ask you if you could ask them to give me the same
1 rights that the other accused have had, and that they transfer to my
2 computer all the material that I can use. So that is the request that I
3 have and it's a big one because it's a big problem for me. Thank you.
4 JUDGE PARKER: Indeed, thank you for mentioning that matter,
5 Mr. Djordjevic. What will happen is that the Chamber will ask for this
6 matter to be looked at and for it to receive a report. You will
7 appreciate we don't, at the moment, fully understand the extent of your
8 difficulty or the reason for it or what options there are for dealing
9 with it. So we'll have that matter looked at and, if necessary, the
10 matter can be raised again before us, but I would expect that the matter
11 will receive practical attention in the near future.
12 Well, if there are no other matters that need to be mentioned at
13 this point, we would now propose to adjourn, with a view to the trial
14 commencing tomorrow morning at 9.00. We would thank counsel for their
15 assistance today. We now adjourn.
16 --- Whereupon the Further Pre-Trial Conference
17 adjourned at 5.22 p.m.