Tribunal Criminal Tribunal for the Former Yugoslavia

Page 118

1 Tuesday, 28 March 2006

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 2.15 p.m.

5 [The accused entered court]

6 JUDGE ANTONETTI: [Interpretation] Very well. Madam Registrar,

7 please call the case.

8 THE REGISTRAR: Good afternoon, Your Honour. This is case number

9 IT-98-29/1, the Prosecutor versus Dragomir Milosevic.

10 JUDGE ANTONETTI: [Interpretation] [Microphone not activated] May I

11 have the appearances, please, starting with the Prosecution?

12 MR. STAMP: Thank you very much, Your Honour and good afternoon.

13 I am Chester Stamp for the Prosecution. With me is Mr. Manoj Sachdeva and

14 also with us is our case manager, Ms. Biljana Blazevic. Thank you very

15 much.

16 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Stamp. I would

17 like to ask the Defence to introduce themselves.

18 MR. TAPUSKOVIC: [Interpretation] Good afternoon, Your Honour. I

19 am Branislav Tapuskovic, attorney from Belgrade and for the first time

20 here today with me is my colleague, who a will assist me, she is

21 co-counsel and because it is her first time here in court before you, I

22 would like to ask her to introduce herself.

23 JUDGE ANTONETTI: [Interpretation] Go ahead. Please introduce

24 yourself.

25 MS. ISAILOVIC: [Interpretation] Good afternoon, Your Honour, my

Page 119

1 name is Branislava Isailovic. I'm a lawyer in Paris.

2 JUDGE ANTONETTI: [Interpretation] Very well. I would like to

3 welcome all those present here, including those who attend this hearing

4 for the first time, and it's with a great deal of pleasure that I would

5 like to greet Ms. Isailovic, a member of the Paris Bar Association, and

6 her presence will contribute to the promotion of the French language.

7 Thank you very much for that.

8 We are gathered here today for a Status Conference.

9 Yes, Mr. Tapuskovic?

10 MR. STAMP: I have to make a correction. My colleague,

11 Ms. Isailovic is indeed a lawyer from Paris. She is a member of the bar

12 association in Paris. Not from Belgrade. She doesn't represent the bar

13 association of Belgrade. She is in Paris, a French attorney, member of

14 the Paris Bar Association is what I said.

15 JUDGE ANTONETTI: [Interpretation] Thank you very much for this

16 additional piece of information.

17 As I was saying earlier on, we are gathered here today for a

18 Status Conference. As you know, a Status Conference has to be held every

19 120 days, under Rule 65 bis. Let me remind you that General Dragomir

20 Milosevic was transferred to the Tribunal on the 3rd of December 2004.

21 His initial appearance took place on the 7th of December 2004. Today is

22 the fifth Status Conference, the last Status Conference took place last

23 year on the 13th of December 2005. Since then, things have moved ahead in

24 the procedure because the Prosecution has filed its pre-trial brief as

25 well as the list of exhibits and the list of witnesses. The Defence, and

Page 120

1 I would like to thank the Defence for this, the Defence has responded to

2 the pre-trial brief and the Defence has also notified the Chamber that it

3 would invoke a defence of alibi.

4 We have pending motion that was filed on the 31st of January 2006,

5 as well as the list of exhibits and witnesses under this motion.

6 Non-disclosure of the annexes to the public was requested, and I would

7 like to grant this motion today.

8 As a result, the case is practically ready for trial, subject to a

9 number of additional information we need from the Defence in relation to

10 Rules 66(A)(i) and 66(A)(ii) and also information pertaining to Rule 68.

11 I've stated earlier that as far as I'm concerned, the case is practically

12 ready for trial and as soon as we close this hearing, I will finish

13 writing my report and will then send this report to the Trial Chamber,

14 according to the Rules of Procedure and Evidence. I will notify my two

15 colleagues that according to me the case is ready for trial. The

16 pre-trial phase has been completed, and then it will be up to the

17 President of Trial Chamber II to get in touch with the president of the

18 Tribunal for one or several permanent judges to be appointed and possibly

19 an additional -- ad litem Judges in order to try this case that should

20 start very shortly.

21 As far as I'm concerned, I've stated that there should not be any

22 delay in this procedure and I've indicated that in a dissenting opinion I

23 filed following a motion for provisional release filed by the Accused. I

24 said that as a judge I felt it my duty to give my opinion that any Accused

25 should be entitled to an expeditious trial, and this means that the

Page 121

1 pre-trial phase should be as short as possible. I know that in this

2 Tribunal, in many instances, in many cases, pre-trial phases have varied

3 greatly in length.

4 Let me just remind you of the case of Slobodan Milosevic, where

5 the pre-trial phase was very short because his initial appearance took

6 place and then six months later his case started. We have the other case

7 of the opposite case of Seselj, who has been waiting for the beginning of

8 his trial for the past three years. The Statute of the Tribunal is very

9 clear in that respect because it is stated clearly in the Statute that the

10 Accused are entitled to an expeditious trial. And this is confirmed by

11 the Rules of Procedure and Evidence because at the initial appearance

12 hearing, the Accused is asked to plead guilty or not guilty. The accused

13 pleads guilty then the beginning of the trial should take place as quickly

14 as possible, and the same applies if it's the reverse, the trial should

15 begin very quickly.

16 Why are we experiencing such a long delay? It seems to me that

17 the main -- one of the main culprits is the Prosecution because the

18 Prosecution during -- throughout that phase keeps disclosing to the

19 Defence a number of documents and keeps investigating. As a result, the

20 Prosecution is never ready. We should also take note of the fact that in

21 the decision issued following the request for provisional release, in its

22 filings, the Prosecution stated that the trial would only be able to start

23 in 2008. And as far as I'm concerned, this is not acceptable. Such a

24 date is not acceptable. And I would like to state very solemnly that the

25 Security Council in Resolution 1534 about the Completion Strategy of the

Page 122

1 International Tribunal, the Security Council stated very clearly that

2 trials at trial stage should be completed by 2008 and that when it comes

3 to the appeals stage, all trials should be completed by 2010. In other

4 words, the deadline for the Prosecution is 2008. 2008 is the -- is to be

5 the end, is to mark the end of trials. Therefore, it's unacceptable to

6 think of starting a case in 2008. Therefore, as I've said earlier on, as

7 soon as we close this hearing, I will finalise my report in order for

8 judges to be appointed very shortly to try this case.

9 I thought it my duty to share this information with you because I

10 think it's very important for the Accused.

11 According to the Prosecution --

12 THE INTERPRETER: Interpreter's correction: Under the Rules --.

13 JUDGE ANTONETTI: I have to deal with the matter of disclosure.

14 As you know, according to Rule 66(A)(i) and 66(A)(ii), the Prosecution is

15 bound to disclose all material to the Defence. I'm now going to turn to

16 Mr. Stamp to find out if everything has proceeded according to the Rules.

17 Mr. Stamp?

18 MR. STAMP: Thank you very much, Your Honour. The disclosure

19 under Rule 66 -- I beg your pardon, under Rule 68, which is disclosure of

20 exculpatory material is ongoing. The Prosecution is conducting the

21 relevant searches and as soon as material that is appropriate or falls

22 within the provisions of that Rule comes available we disclose it

23 immediately to the Defence. The Defence has also in the past and recently

24 supplied us with various criteria that could assist in the searches, to

25 give us some guidance as to what they consider to be Rule 68 material. We

Page 123

1 have applied those materials to our searches, we have submitted them to

2 the relevant department within the OTP responsible for these searches and

3 as soon as those search results are received, they will be reviewed and

4 disclosed to the Defence in due course.

5 So Rule 68 disclosure is ongoing.

6 We are not -- we have complied with the Rules fully in that we

7 have disclosed what within our knowledge is or within our knowledge falls

8 within the provisions of that Rule. As far as Rule 66 is concerned,

9 material that the Defence has asked us to provide, sorry, that's Rule 67,

10 all the material that the Defence has asked us to provide has been

11 provided to the Defence. We received a letter recently from the Defence

12 asking for additional material and we are in the process of locating that

13 material and we will disclose that material to the Defence as soon as that

14 becomes available. And in respect to the Rule 65 ter filing, that is a --

15 witnesses, the list of witnesses and the exhibits, there the Prosecution

16 listed 16 -- over 1600 exhibits, and they were disclosed but for a few, I

17 think about seven, on the 31st of January. There probably needs to be

18 some tidying up in respect of those that were not disclosed and I'm

19 proposing to meet with the Defence to see which if any has not been

20 disclosed.

21 The exhibits themselves, or copies of the exhibits themselves,

22 were disclosed. However, there are at this moment 424 pending

23 translations of these exhibits. That is, translations to B/C/S, the

24 language of the Accused. The Prosecution has made the appropriate

25 applications to have these documents formally translated. However, as

Page 124

1 indicated to the Court before, and as no doubt Your Honour will

2 understand, the case is presently being tried and those slated for trial

3 before this case will take priority in respect to the completion of those

4 translations. I'm afraid I'm not in a position to give a date as to when

5 the translation department, which is a province of the Registry actually

6 and not really controlled by the Prosecution, would be able to provide

7 these translations. I've been told that some months before they will be

8 able to provide the translations because of the ongoing demands on their

9 staff by the trials which are now ongoing.

10 The witness list included well over 144 witnesses. I think it's

11 in fact 144 witnesses. All but seven of those witness statements were

12 disclosed to the Accused except for one. May I just repeat that? All but

13 eight of those statements were disclosed to the Defence. The reason in

14 respect to seven of those that were not disclosed is that the translations

15 were not available. Those translations have become available and I'm

16 informed that they are ready to be disclosed to the Defence today or

17 tomorrow.

18 Today.

19 So --

20 JUDGE ANTONETTI: [In English] Today?

21 MR. STAMP: In respect to the one that was not disclosed, this

22 apparently was the result of some oversight and that also will be

23 disclosed to the Defence today. So as far as the disclosure of the

24 witness statements and material and the exhibit lists are concerned, the

25 Prosecution to our knowledge, as far as our knowledge is, has complied

Page 125

1 substantially with the order made by the Court. I did see that in the

2 filing of the Defence recently in the filing of the pre-trial brief they

3 indicated that there were some documents which were not disclosed. As

4 usual we would probably need to meet with the Defence to see what was not

5 disclosed and to tidy up that aspects of it and that is something we

6 propose to do hopefully today or tomorrow.

7 Unless there are any other questions in respect to any other areas

8 of disclosure, I think I've covered Rule 67, 68 and 66 disclosure and, as

9 I indicated, disclosure is always ongoing with respect to the Rule 66 --

10 sorry, Rule 67 and Rule 68 disclosure. Thank you very much.

11 JUDGE ANTONETTI: [Interpretation] Thank you very much, Mr. Stamp.

12 I've listened very carefully to what you've just told us. I take note of

13 the fact that there still is a problem in relation to the translation of a

14 number of documents. Apparently more than 400 documents are -- have not

15 been translated yet from English into B/C/S. Of course, it's not your

16 purview. It's up to the translation services to translate these

17 documents, for them to be available and to have been given to the Defence

18 and to the Accused when these witnesses come to testify.

19 Now, I'm going to listen with great interest to what the Defence

20 will have to tell us, to either confirm what Mr. Stamp has just told us or

21 to notify the -- us of additional problems.

22 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honour. At the

23 outset, I should like to say that my colleague and I have agreed that in

24 the case that the Bench should have any questions with respect to our

25 motion pursuant to 65 ter (F) that if the need arises, my colleague,

Page 126

1 Ms. Isailovic, will be answering those questions but what I'd like to say

2 now, after having heard what my learned friend of the Prosecution has just

3 said, is this: It has to do with his -- the motion that we received and

4 the list of exhibits and witnesses.

5 I would like to say that I'm very grateful, first of all, on

6 behalf of the Accused, Dragomir Milosevic, that there is such great

7 interest on your part, the presiding officer of these proceedings, to have

8 the trial be expeditious and go ahead as soon as possible. I have been

9 working at this Tribunal for about ten years and this is the first time

10 that I have witnessed a Judge insisting upon that very important question

11 and questions that are regulated by Article 20 of the Statute and that is

12 that trials must be expeditious. But what is even more perhaps necessary

13 than an expeditious trial is to ensure that the trial is a fair one, and

14 that the parties appearing before this Tribunal be equal and act on an

15 equal footing and that is why I would like to draw your attention to

16 several points which we will have to size up and assess before you rule

17 within the spirit of the Statute to have the trial go ahead as soon as

18 possible and schedule a trial date.

19 The Prosecutor mentioned 144 witnesses a moment ago. I have

20 counted them and have arrived at a number of 145. There was mention of

21 146 as well. Perhaps that was a slip of the tongue and that's not of any

22 great importance but it does give rise to some misunderstanding and

23 confusion at the beginning.

24 I've been asked to speak a little more slowly, yes, I'll try to do

25 so.

Page 127

1 So of those 146 witnesses or 145 or 144, whatever the exact number

2 is, eight of them are expert witnesses. And we know the names of just one

3 of those. We don't -- do not have his testimony, his statement. As for

4 the other seven expert witnesses we have been given absolutely no

5 information at all. So this then is a very important matter for us,

6 working on the Defence team of Mr. Milosevic, because they are questions

7 that we have to deal with specifically and do our best to come up with our

8 own expert witnesses to respond to what the Prosecution expert witnesses

9 have said. So I think that in the spirit of Rule 94 bis that you should

10 set a deadline today by which the Prosecution would be duty bound to

11 supply us with the names of the expert witnesses and their statements and

12 their testimony. Otherwise, it will be difficult for us to tackle key

13 issues which have to do with this trial and these proceedings and the

14 responsibility that each of us has. And in view of the indictment that we

15 have before us. Furthermore the Prosecution intends to call 22 witnesses

16 who are former UN officials, UN employees. We don't know their identity.

17 Perhaps they are amongst the witnesses that -- whose names we received

18 earlier on and might have studied and so we might think that those same

19 witnesses will be called, but we still have not received the names of 22

20 witnesses, which is a large number. Among the 144 witnesses that we spoke

21 about at the beginning, there are eight or rather persons who are from

22 Bosnia-Herzegovina. They are not UN officials or representatives and we

23 don't have their statements either in English or in the B/C/S language.

24 And for the Prosecution to be able to check this we did not receive

25 witnesses under number 59, 95, 96, 102, 103, 122, 125, and 140.

Page 128

1 And furthermore, the Prosecution has informed you, informed you on

2 the 31st of January that the translations of the statements into B/C/S for

3 six witnesses have been provided but we don't have them to this day. So

4 eight expert witnesses, eight victims, 22 UN officials makes a total of 38

5 witnesses for which the Defence has received absolutely nothing, not in

6 B/C/S, not in English. And now if you add to this the six more witnesses

7 whose statements are being translated that means a total of 42 witnesses,

8 42 statements that the Prosecution list that have not been disclosed,

9 which makes almost 38 or rather 30 per cent of the total number of

10 statements which is a vast number. And to all intents and purposes that

11 means that we as the Defence cannot go ahead with our work as we ought to

12 do, and I think that that is something that you should bear in mind,

13 especially when you come to rule and decide upon a date for the trial.

14 Furthermore, according to the list of witnesses, witnesses who

15 will possibly appear in court, that the Prosecution intends to call, there

16 are 19 witnesses that come under Rule 92 bis, 92 bis witnesses, and I

17 think it is my duty to state that it would be far better for the Defence

18 if the request pursuant to 92 bis procedure should be done as early on as

19 possible and provided to the Defence as early on as possible so that the

20 Defence can state its views and the Defence is rather worried because we

21 have seen that in one of the descriptions given by the Prosecution saying

22 that those statements be introduced under 92 bis (C), which provides for

23 the introduction of witness statements by witnesses who are deceased or

24 whose residence cannot be ascertained and established. I have to say that

25 in the meantime, since the last Status Conference, we did not receive

Page 129

1 anything pursuant to Rule 68 bis either. I think I misspoke. I meant to

2 say Rule 68. And also a few more matters that I'd like to raise with

3 respect to exhibits.

4 The exhibit list was disclosed in the pre-trial brief and the list

5 of witnesses, however it is not final, it is not a final one. And

6 permission has been requested for new exhibits to be added to that list,

7 whereas this present list is not complete either, as it ought be and

8 should be. So the Prosecution intends to hear 22 witnesses, former UN

9 officials and to introduce through them pursuant to Rule 70 quite

10 extensive material. We have received that material. We hope the number

11 is final, but that material those documents have not been translated into

12 B/C/S which means that we have not received a single instruction from the

13 Accused in respect of those documents because of that translation issue.

14 I should also like to give you three characteristic examples of

15 the problems we encounter, three important witnesses, they are 42, 56 and

16 127. Exceptionally important witnesses for the Accused. And all the

17 statements have been provided and disclosed in English, none of them have

18 as yet been translated. So faced with a situation of that kind the

19 question arises of what we are expected to do. The Prosecutor has just

20 told us that several months are needed for that material to be translated

21 so we would like to know when I, as a Defence counsel, will be able to

22 present the Accused with all the documents for him to give us feedback and

23 instructions for us to conduct the Defence case and conduct an

24 investigation.

25 Your Honour, it has been 11 years since the events, eight years

Page 130

1 since the indictment was raised, and so on and so forth. We still cannot

2 tackle the exhibits proposed by the Prosecution. And, of course, I am

3 very grateful to you, as the judge, for insisting upon having the trial go

4 forward as soon as possible. But the question arises what will happen to

5 the second element that must be fulfilled here? Can we under

6 circumstances of this kind, count on a fair trial? So, yes, I am for an

7 expeditious trial, I am in favour of having the trial go ahead as quickly

8 as possible but within the limitations and bearing in mind the conditions

9 necessary for us to be trial ready and go ahead with the trial. Thank

10 you. That is all for the time being.

11 JUDGE ANTONETTI: [Interpretation] Thank you very much,

12 Mr. Tapuskovic, for all this information. Allow me to sum up some of your

13 points and then I will turn to the Prosecution for the Prosecution to give

14 us some additional information.

15 You quite rightly pointed out that you noticed based on the list

16 of witnesses that you are currently have not been given the statements of

17 a number of witnesses. You've told us that according to what you've seen,

18 you have 22 witnesses who were UN officials and you pointed to witnesses

19 42, 56, and 127. This is something that I had noted myself before,

20 because these witnesses, most of the witnesses come under Rule 70. As you

21 know, there is a specific procedure that is governed by Rule 70 and

22 according to this procedure, the Prosecutor has to obtain the agreement of

23 states or institutions these witnesses work for before these witnesses can

24 come and testify here at the Tribunal. Furthermore the Rules provide that

25 these witnesses have to be notified to the Defence, their names have to be

Page 131

1 notified to the Defence, but the case law of the Tribunal is not very

2 clear on that point. It's a bit wavering because I tried to research that

3 point and I found that there are two types of case law. In some cases,

4 Trial Chambers ruled that these witnesses, their names, have to be

5 notified to the Defence on the day of the trial. And then once the

6 Defence has the list of these witnesses, and their statements, the Defence

7 will have at least 30 days in order to get ready to cross-examine these

8 witnesses, and we have a second type of case law here at the Tribunal

9 according to which the Prosecutor has to disclose the names and the

10 statements but 30 days before the witness comes to testify.

11 Let me give you an example. Let's assume that the case -- that

12 the trial starts in two or three weeks and that the Prosecution has

13 decided to call Witness 42, for example, in December. Based on that case

14 law, the Prosecution will then disclose to you the name and the statement

15 of the Accused on the first of November, if the witness is to be called on

16 the 1st of December. As you can see, the practice has evolved in

17 different ways according to the Trial Chambers. As for the upcoming

18 trial, I myself will not sit in the -- on that -- in that trial and have

19 not taken any position on that matter, but personally speaking I'm in

20 favour of the first type of case law whereby the Prosecution is duty-bound

21 to disclose to you on the first day of the trial the names of these

22 witnesses and their statements. That's my personal position. But I

23 cannot speak for those who will try the case and who might have a

24 different view of that issue. That's the reason why I've not made a

25 specific ruling on that point.

Page 132

1 But I can very well understand that you, the Defence, are faced

2 with a problem because first of all you have to prepare for

3 cross-examination, and secondly you have to prepare the Defence case and

4 you have to decide what witnesses you will call. And obviously, you need

5 to have this information as early as possible, and you quite rightly

6 mentioned the issue of equality of arms and the issue of a fair trial and

7 I fully agree with you on that point. However, we have a case law here at

8 the Tribunal, case law that has been confirmed by the Appeals Chamber and

9 although I personally think that one should have adopted a much more

10 demanding attitude towards the Prosecution on that point, there is

11 nevertheless case law that has developed on that issue and that's why I

12 believe that it will, during the Pre-Trial Conference, this issue will

13 need to be raised again before the Judges who will try the case.

14 I've also listened with a lot of understanding to what you've said

15 when you stated that according to you, your calculations, about 30 per

16 cent of the witnesses are as yet unknown to you. And, of course, that can

17 constitute an obstacle in the preparation of your case.

18 You also quite rightly pointed out that your client,

19 General Dragomir Milosevic, should be in a position to know what's in

20 these statements, for him to then give you instructions. I agree with

21 what you've said. There is no going around it. But nevertheless, for

22 that to be achieved, the translations have to be completed. You raised

23 the issue of translations, you said you were waiting for documents to be

24 translated by the translation services coming under the Registrar.

25 I understand and I agree with you but you also have financial

Page 133

1 resources at your disposal, and you could yourself decide to have some

2 documents translated. Let's take a statement of a -- four to five pages,

3 if it's absolutely necessary, could, yourself, hire a translator for this

4 text to be translated, notwithstanding the problem the Registry

5 experiences in providing translations expeditiously, you yourself could

6 have some translated -- some documents translated if they prove vital.

7 Because as you know perfectly well, that when something is absolutely

8 vital, something is essential, then all resources need to be pulled

9 together in order for the problem to be solved.

10 Now I'd like to turn to Mr. Stamp, because I'd like him to tell me

11 what his position is on the issue of witnesses, amongst them Rule 70

12 witnesses, and what does the Prosecution intend to do on that point. I've

13 mentioned as you've heard me, a number of case law developments on that

14 matter. Mr. Stamp you have the floor.

15 MR. STAMP: Thank you very much again, Your Honour.

16 In respect to the Rule 70 witnesses, the Prosecution has disclosed

17 to the Defence statements of those witnesses with the names of those

18 witnesses. So I think the Defence comes here in some -- in error when he

19 says that he has not received those statements.

20 What was -- the document in which the names of those witnesses was

21 not included was a 65 ter list of witnesses filed on the 31st of January.

22 They were given pseudonyms because the Prosecution out of an abundance of

23 caution thought it would be inappropriate to disclose the names of these

24 witnesses in that filing. However, the statements have been delivered to

25 the Defence, the 22 statements of the UN witnesses have been, I repeat,

Page 134

1 delivered to the Defence.

2 In respect to other witness statements, as I indicated, there were

3 eight statements according to our checks which were not disclosed. Most

4 of them, almost out of them because of outstanding translation issues.

5 Those issues have now been resolved. They have been translated and they

6 can be delivered to the Defence today.

7 As far as the expert witnesses are concerned, of course, the time

8 limit that could be set by the Trial Chamber within Rule 94 bis is

9 entirely a matter for you, the Trial Judge. I wouldn't say entirely

10 matter it might well be set by the Trial Chamber. However, if the Court

11 is of a view that a time limit could be set, we would ask to be allowed to

12 give written submissions in this regard because we are presently in touch

13 with our proposed experts. Most of these are military personnel, and many

14 of them are serving on behalf of their countries in various theatres, in

15 peacekeeping activities. We therefore need to consult with them as to

16 when they will be available to review the material and prepare these

17 reports, and therefore we need some time to prepare written submissions to

18 the Court in respect to the time when these persons could be available to

19 provide expert reports.

20 As regards 92 bis witnesses, I do agree with Defence counsel that

21 it is possible that the Pre-Trial Judge could order the early presentation

22 of the 92 bis statements. However, that is not the practice of most

23 pre-trial Chambers because it is submitted respectfully that the ideal --

24 ideal forum to make these types of orders in respect to the manner in

25 which evidence should be presented ought to be the Trial Chamber which

Page 135

1 hears that evidence, and therefore I would ask Your Honour to reserve that

2 issue, the issue of 92 bis statements, to a pre-trial Chamber.

3 If I may, since I'm on my feet, make an additional comment, the

4 Court did indicate earlier that delays are many times caused by the

5 Prosecution because we keep disclosing and we keep investigating. Your

6 Honour, it is inevitable that investigations in many of these cases will

7 be ongoing. One of the reasons, and I'll mention one, is that many of the

8 governmental authorities from whom we need to receive information, have

9 not been cooperative in the past. Indeed, some have been reported to the

10 Security Council for lack of cooperation. As cooperation has become more

11 forthcoming, the Prosecution has and is in the process of receiving new

12 and additional investigation -- I beg your pardon, new and additional

13 information which, I'm sure Your Honour would agree, has to be

14 investigated of the.

15 In respect to disclosure, disclosure has, as indicated, has to be

16 ongoing, especially in respect of Rule 68 material. We continuously

17 receive material. There are millions of documents within our archives and

18 the Defence occasionally gives us additional search criteria or additional

19 guidance as to what they consider to fall within the purview of those

20 rules. It there are becomes our duty to continue these searches and to

21 review the results for disclosure to the Defence. Therefore, this type of

22 continued disclosure and investigation is, Your Honour, with respect,

23 inevitable. It is something the Prosecution must comply with.

24 As regards disclosure in the present case, of material which we

25 have not been able to disclose because of translation issues, we would, if

Page 136

1 resources did permit, attempt to disclose or to translate and disclose

2 some of this material. There might well be issues as to whether draft

3 translations prepared by the Prosecution would be admissible or proper for

4 delivery to the Defence. I take Your Honour's comments just now to

5 indicate that it is the view of the court that such translation and

6 disclosure would be appropriate.

7 However, again, the institution, including the OTP, cannot

8 simultaneously prepare every single case which is before the Tribunal.

9 Priorities have to be set. The translation department, which falls under

10 the Registry, as indicated, has set its priorities, and the OTP also must

11 set priorities in how we deploy our resources, including translation

12 resources. And there are ongoing trials, major trials, which require

13 these translation resources as first priority. There are trials which are

14 set to begin soon which also require these translation services. And

15 therefore, the OTP resources for translation is limited, but I would

16 undertake where resources are freed up to seek to get some of these

17 documents translated for delivery to the Defence. However, to close, it

18 is probably appropriate that the counsel for the Defence, as well as the

19 Prosecution, meet to review the material which was disclosed because there

20 appears to be some confusion as to what was not disclosed, and this in my

21 experience has been the normal thing, the normal approach to issues of

22 this nature, that counsel can go through the material and can settle with

23 finality what was or was not disclosed.

24 Thank you very much, Your Honour, may it please you.

25 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Stamp.

Page 137

1 Mr. Stamp, you've given the answer to the problem we were faced

2 with and you've shown yourself as a great professional once again. You've

3 said that it was -- the Defence and the Prosecution have to meet to try to

4 find a solution, and as a judge I can only give my approval to this

5 proposal. When we think of the problems this were raised earlier on by

6 the Defence I think that a number of issues could have been solved and

7 resolved more quickly.

8 If I understand rightly what you've just said, you've formally

9 stated that all witness statements have been disclosed to the Defence,

10 including Rule 70 witnesses, but you've stated that for security reasons,

11 some witnesses have been disclosed under a pseudonym. You acknowledge

12 today that there are still eight witness statements that have not been

13 translated, but you've also stated that you're in a position today to

14 disclose these statements to the Defence. This being so, subject to what

15 the Defence might have to say about it, this allows me to register

16 progress in the witnesses' issues.

17 You raised the issue of Rule 92 bis as well as the Defence. Yes,

18 in the list of witnesses we find a number of witnesses that could fall

19 under Rule 92 bis. As you know full well, Rule 92 bis covers witnesses

20 who find themselves in very different situations according to whether --

21 and dealt with at paragraphs A, B, C, D and E of the Rules. I'm not, as I

22 said, going to sit on that case and I believe that it will be up for the

23 Trial Chamber that will hear the case to rule on the admissibility or on

24 the cross-examination of these witnesses. It will be up for the Judges of

25 the Trial Chamber to decide. I cannot make any selection amongst these

Page 138

1 witness statements. If I decided to admit some statements and to dismiss

2 others, this could cause a -- prejudice and because the three judges of

3 the Trial Chamber might have a different position. So my position on that

4 point is extremely clear. It will be up to the Trial Chamber to decide

5 which witnesses might fall under Rule 92 bis based on your submissions

6 obviously. Yes, if I had been a member of the Bench that will hear the

7 case, I then would have been in a position to give you some guidelines but

8 it's not going to be the case. Therefore I do not want to make any

9 definite decision.

10 The second point is the issue of expert witnesses. This again is

11 very important issue. My only concern is as follows: I'd like to know if

12 you propose to start the trial by calling an expert witness, because if

13 that's the case, if you want to start the presentation of your case with

14 an expert witness, then the Defence will have to have been able to review

15 the expert witness and according to Rule 94 bis the Defence has one month

16 to respond to the reports. I do not know what the Prosecution intends to

17 do. If the trial starts in six weeks or eight weeks, I don't know if you

18 want to call an expert witness as your first witness because if that's the

19 case, then you will need to disclose the expert report to the Defence,

20 because then they will have one month to respond, but, of course, this

21 depends on the way you've planned your trial. I dealt with that issue

22 previously. We know that most of these expert witnesses will be military

23 experts because we have the issue of shellings and projectile trajectories

24 and angles, and for all these issues the Chamber will need to hear expert

25 witnesses, to hear their opinions, and this was a case in another trial,

Page 139

1 in the Krstic case. A lot of experts will be heard on that particular

2 issue.

3 From what Mr. Stamp has just told us, I surmise that several of

4 these experts are serving as different -- in different capacities in

5 various countries of the world and that the Prosecution is not in a

6 position to know when these witnesses will come to testify, and it's even

7 possible that the Prosecution has no idea which expert witness will be the

8 first to testify. I would give -- like to give Mr. Stamp the floor once

9 again about the first expert witness.

10 Mr. Stamp, do you have any idea about who will be called first and

11 about the planification of your case?

12 MR. STAMP: Well, I can assure the Court that an expert witness

13 will not be the first witness to be called. I can only say that the

14 schedule in which the Prosecution will call its witnesses will to a great

15 extent be governed by what is fair and reasonable to the Accused. And

16 therefore, the Prosecution will conduct its disclosure -- or will perform

17 its disclosure obligation in respect to these reports in compliance with

18 the order of the court and call the witnesses in a manner which is

19 entirely fair to the interests of the Accused and the institution. Thank

20 you, Mr. President.

21 JUDGE ANTONETTI: [Interpretation] Very well. You have just stated

22 something which is very, very important. You say that at any rate, when

23 the start -- when the trial is going to start, you're not going to call

24 one or several expert witnesses to start with. And this is much to the

25 credit of the Prosecution, in order to ensure the rights that the Accused

Page 140

1 has to a fair trial and to equality of arms. So maybe there is no

2 urgency, no need to decide as yet on the expert reports, plus I guess they

3 haven't been finalised quite yet. So it may be wise to wait until such

4 time as we have a more precise timing, and this could be settled, I

5 believe, by the -- at the time of the Pre-Trial Conference.

6 This being said, I am, of course, going to give the floor to the

7 Defence. Indeed, the Prosecution has provided us with some information to

8 meet the concerns expressed by the Defence.

9 Now, I'd like to know what the Defence wants to say about this.

10 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honour.

11 With respect to the 22 witnesses who are UN employees, I have to

12 say that according to the list of witnesses we received on the 31st of

13 January, there are no elements that would enable us to identify the

14 witnesses. For example, to make this as clear as possible to the

15 Prosecution, Witness 11. No details are provided. And it may be quite

16 correct, as my learned friend says, that the statement has been disclosed

17 to us. But according to the information contained in the list of the 31st

18 of January, there are no details that would enable to us identify this

19 witness and therefore study his statement. I abide by what I said, that

20 is, that eight witnesses on this list, although we did have sufficient

21 information to identify them -- identify other witnesses, these eight

22 witnesses are ones we have not been able to identify, including the six

23 whose statements have not yet been translated.

24 I have to point out something that concerns me here. By

25 coincidence, I worked on another case where I had the testimonies of

Page 141

1 witnesses 42 and 56, who are very important international witnesses. I

2 had all their statements. I studied them, dealt with them, and therefore

3 I'm unable to explain why in the case of 42, 56, and 127, we don't have

4 the materials because I'm sure the translations do exist since I've

5 already seen the statements of these witnesses. I therefore fail to

6 understand why I have received their statements only in English and not in

7 B/C/S. These are very important witnesses. In my estimation, of all the

8 international witnesses, these two witnesses are the most important.

9 That's why I feel that this issue is a very important one and I wanted to

10 pay special attention to these two witnesses.

11 I even considered bringing them as Defence witnesses, should the

12 Prosecutor not call them.

13 MR. STAMP: May I just respond.

14 JUDGE ANTONETTI: [Interpretation] One moment, Mr. Stamp, before I

15 give you the floor.

16 I'd like to say the following: The Defence are telling us they

17 have encountered a problem based on the witness statements. They tell us

18 that it's hard to identify 11 witnesses. In this regard, if the

19 Prosecution had complied with the order I gave, I had asked the

20 Prosecution to give us a chart as follows: The relevant paragraph of the

21 indictment, the corresponding paragraph in the brief, the name of the

22 witness, and the 1648 exhibits. I had asked the Prosecution to

23 cross-reference all of that. If they had done so, it would have been very

24 easy for the Defence to know that the 11 such witnesses who have not been

25 identified were witnesses related to this or that charge, this or that

Page 142

1 paragraph, in the indictment. Based on that, the Defence would have been

2 able to prepare their case. I know you did your best, but it was not

3 quite your level best, not 100 per cent.

4 I wanted my order to be complied with 100 per cent. However, for

5 various reasons, time, availability, resources, you were not able to quite

6 meet my instructions. It's a pity because the subjects tackled today are

7 the direct result of your failure to comply totally.

8 So let's come to those three witnesses, 42, 56 and 127. The

9 Prosecution tells us -- of course, it's under their responsibility. They

10 tell us that they are extremely important witnesses, and it so happens

11 that the Defence lawyer of this present Accused has had in another case

12 the witness statements of witnesses 42 and 56. Therefore he wonders, how

13 come? How come I have not got them in this case whilst I have them in

14 another case? And the Prosecution suggests, and this is a word I use with

15 great precaution, the Defence shows that you have the translation in B/C/S

16 and fails to understand why you do not disclose them. So I don't know --

17 I'm not there in your office to check whether you have them or not. But

18 if you do have them, and you have failed to disclose them, it's a pity,

19 isn't it, pity that it was not disclosed.

20 So, Mr. Stamp, you have the floor.

21 MR. STAMP: May I just deal with the last issue first?

22 That is why it's probably best, as I indicated earlier that these

23 matters be settled instead of using up a lot of court time. My records

24 indicate that they were disclosed to the Defence and I suspect that if we

25 have some time and could be able to do some searches we would be able to

Page 143

1 find a signed disclosure sheet by the Defence. But this is what my record

2 here indicates, that these documents were disclosed. There has been a

3 huge amount of disclosure over the last few months and it may well be that

4 the documents might have been not recognised for what they were but I

5 think that that can be settled up on discussion with the Defence because

6 we have records to indicate that these documents were disclosed.

7 May I just say in respect to the order for the production of the

8 witness sheet, as the Court indicated the Prosecution did try to comply

9 with it but it was difficult to comply with -- as a result of resource

10 limitation but also, Your Honour, as we indicated in our filings there

11 were technical reasons why it was impossible for to us take the material

12 that had been inputted in one programme called CaseMap and put it in a

13 spread sheet, an Excel spreadsheet, so there were technical difficulties

14 we were not able to overcome. But we did comply with the terms of Rule 65

15 ter is my submission and we did make our best efforts and to some degree

16 substantially comply with the order of the Court in respect to the

17 evidence sheet.

18 It is my submission further that a review of the summaries of the

19 witnesses, because every witness on the witness list was summarised per

20 Rule 65 ter, and any review of the summaries of these witnesses would

21 easily indicate to the Defence which witness statements these witnesses

22 relate to. So it is not a matter solely of the Defence having a look at

23 the 65 ter witness list. If the pseudonym given on the witness list is

24 cross checked with the summary of what the witness is expected to say,

25 then the statement disclosed to the witness -- to the Defence with that

Page 144

1 witness's statement, with that witness's evidence, would be easily

2 recognisable and identifiable. Again, this is a matter which, if the

3 Defence could indicate to us what their difficulty is in making this --

4 this match, we could easily point them in the right direction and solve it

5 in a very short period of time.

6 Thank you very much, Your Honour.

7 JUDGE ANTONETTI: [Interpretation] Very well. Following this

8 hearing, it would be really good if the Defence lawyers could go and see

9 Mr. Stamp to sort it all out among themselves because the Prosecution

10 tells us they gave everything so they can't see why there is a problem.

11 The Defence tell us that they haven't received this or that. So the best

12 thing is for you to meet, look at it, and if it was so that you are really

13 stuck somewhere, well, just file a request straight away and I can issue

14 an order to the Prosecution for them to produce this or that document.

15 But Mr. Stamp does tell us that he has provided everything. So,

16 you know, he's very friendly, just go and see him. I'm sure -- I'm

17 certain that he will really meet with your concern.

18 MR. TAPUSKOVIC: [Interpretation] Your Honour, I would just like to

19 say one more thing before I give the floor to my colleague for additional

20 explanation. It is not by chance that I mentioned these three statements,

21 knowing full well their value and importance, so that all of us there in

22 the office in Belgrade tried in all manner of ways to establish precisely

23 that, whether everything had been disclosed that is necessary with respect

24 to those statements. That is why I was surprised to see that I didn't

25 have the translations because I know this they exist. I did not receive

Page 145

1 the translations in the material supplied me to date.

2 And now may my colleague give you some additional explanations

3 with respect to some questions raised by you yourself, Your Honour?

4 JUDGE ANTONETTI: [Interpretation] Of course, gladly, but I -- I

5 do invite Mr. Stamp, if he has these translations to give them to you once

6 the hearing is over. You have the floor.

7 MS. ISAILOVIC: [Interpretation] Thank you, Your Honour, I've just

8 met Mr. Stamp so I don't know enough how friendly he is yet but I'm sure

9 that we will have a brief meeting straight after this hearing so we will

10 be able to sort out a lot of things.

11 However, I don't want there to be any doubt today, personally.

12 Together with Mr. Tapuskovic and our legal adviser, we sort of spread out

13 the work among ourselves and we did search the documents, the disclosed

14 documents, thoroughly. I had to look at the witness statements, and I am

15 certain that -- well, we will we see this after the hearing. There is not

16 just the problem of a few statements missing. There are other problems,

17 and I want to say that there are also other problems including the problem

18 of how to use the exhibits that are in B/C/S. We were given a CD

19 containing a lot of documents, but we have them in many versions. So you

20 have to be really smart to find your way around, and my counsel and myself

21 we were trying to think of this fable like the fox and the stork. So I

22 mean we got lost somewhere. We managed -- indeed, we were given a lot of

23 documents, some of them are as I say in many copies. We have many copies

24 of them, many versions of them, and others are missing. So this was

25 really a problem for me and for the whole Defence team.

Page 146

1 We have mentioned another problem in our response to the pre-trial

2 brief. In the introduction, we mentioned the problem of the failure to

3 comply with your order because we thought that this order was an

4 extraordinarily good one. It was very important for the Defence

5 preparation, and it is a pity that it remained basically dead letter, that

6 it just remained a promise on paper, because what we received in terms of

7 annexes A, B, C, and D, has nothing to do with what you had specified in

8 your order.

9 I believe that Article 21 of the Statute is not being complied

10 with, in terms of your order.

11 In your order, you stated that one had to make a difference

12 between Rule 7(1) and Rule 7(3), or Article 7(1) and 7(3). Well, I'm not

13 very impressed by the software myself but if the Prosecution did not

14 manage to make this distinction then they had to find another way of doing

15 it, because with what was done, it is impossible to know what refers to

16 7(1) and what refers to 7(3). There I would have liked you, Your Honour,

17 to intervene without delay because we may have a technical meeting after

18 the hearing, but this goes beyond technical matters. It really goes to

19 the merits. And this issue really has to be solved appropriately. I

20 thank you.

21 JUDGE ANTONETTI: [Interpretation] Thank you. You have said many

22 very interesting things, yes. Thank you for saying that this was an

23 extraordinary order I drafted, inasmuch as I did try to ensure the best

24 possible trial preparation for the Judges who are going it try the case

25 but also for the Defence. Indeed, in the letter and the spirit of the

Page 147

1 Statute, equality of arms must be ensured, and if you invoke 7(1) and 7(3)

2 in an indictment without having proper foundation, it may be harming the

3 Defence. This is the spirit which guided me to ask and direct the

4 Prosecution to comply with the order.

5 I really had a dilemma. Should I take the sanction procedure

6 under Rule 54 which is a daunting one, because indeed, under the Rules, I

7 am allowed to charge for contempt a party failing to comply with an order

8 of contempt. I did ask myself whether I should or not.

9 I took into account what the Prosecution had told me. Of course,

10 they were not used to this type of methodology. So before, this had all

11 not been noticed by many Trial Chambers. It had escaped them, and the

12 Prosecution had free reins to present their case. In doing so you end up

13 with trials that take years and remain fruitless for justice.

14 In keeping with the conclusions of the Bonomy report, I believe

15 that we had to move forward and impose certain restrictions on the

16 Prosecution, which I did.

17 The Prosecution met my concerns in part, but left some of my

18 concerns aside. You are perfectly right regarding Articles 7(1) and 7(3).

19 Allow me to get back to this, which is a fundamental question, and I turn

20 to the Prosecution to tell you this: In an indictment, when Article 7(1)

21 is mentioned, and it is said and/or 7(3), semantically speaking, we

22 receive answers to our questions. If you say 7(1) and 7(3), what does

23 this mean? It means that the Prosecution argues that there is criminal

24 liability on the Accused on those two foundations, and the Prosecution has

25 to prove both 7(1) and 7(3). The case law is very clear about this. Let

Page 148

1 me refer you to the Blaskic decision, the Appeals Chamber said in this

2 respect that when you have 7(1), it is then not necessary for the

3 Prosecution to add 7(3) elements. However, in -- to say so the Appeals

4 Chamber was relying on a basically clear guilty plea or conviction or

5 guilt, but if you don't have all the elements for the 7(1) but if in the

6 indictment you have "or 7(3)" then it in the alternative but if it is so,

7 if in the alternative the Prosecution charges the accused, it must prove

8 that the Accused had an effective control over those who committed the

9 crimes, that the accused knew of them, that the accused failed to take the

10 adequate measures to prevent them, and that it also failed to punish the

11 authors or the perpetrators thereof. All this has to be proven. It's not

12 enough to mention 7(3) in the indictment and to be silent on it

13 thereafter. How could the Defence in such a case, if the trial is fair,

14 if there is equality of arms, how could the Defence contribute to defend

15 itself, if no proof is given? This is the reason why I specifically

16 instructed the Prosecution to cross-match witnesses and exhibits with the

17 charges under 7(1) and 7(3). It was not done. Therefore, the Defence has

18 raised the question.

19 So what can you say, Mr. Stamp? This is a major problem; all the

20 more so since we are now under time pressure. 2008, the trial has to be

21 completed by 2008. Of course, even though you had problems with Excel you

22 could have had time to meet my request. I'm not going to charge you with

23 contempt to the Court but I'd like to know what prevents you from telling

24 the Defence already now that you have such and such witnesses, such and

25 such exhibits, under 7(1), the same under 7(3). So, Mr. Stamp, you have

Page 149

1 the floor.

2 MR. STAMP: Thank you very much, Your Honour.

3 Let me get straight to the point. The Prosecution, as I indicated

4 earlier, did make all possible efforts to comply fully with the order. We

5 were not because of resource issues, we were not able to do so because of

6 resource issues and also a technical impossibility in respect to the

7 computer programmes that we use and that the order required. However,

8 when I say the Prosecution substantially complied, I mean to say that

9 having regard to 7(1), in the evidence sheet we provided, we explicitly

10 link every exhibit, every one of the 1600 exhibits, to the relevant parts

11 of the pre-trial brief. So those parts of the pre-trial brief which

12 refers to Rule 7(3) have linked to it in this chart which we provided in

13 an attempt to substantially comply with the court's order, every single

14 evidence -- sorry, exhibit, relevant to the 7(3) paragraphs of the

15 pre-trial brief have been linked. Similarly, the exhibits relevant to the

16 paragraphs in the pre-trial brief that deals with Rule 7(1) were. In

17 respect to the witnesses list, similarly, all the witnesses whose

18 testimony impact on or prove matters relevant to Rule 7(3) were linked to

19 those paragraphs of the indictment dealing with Rule 7(3). Similarly, all

20 the witnesses whose evidence impact on, or is relevant to, Rule 7(1)

21 issues were linked explicitly in that document to the paragraphs of the

22 indictment related to Rule 7(3) or Rule 7(1).

23 I'm reminded that the list of witnesses fell under Rule 65 ter

24 went even further in an attempt to substantially comply with the order,

25 notwithstanding the technical difficulties, to also link the witness

Page 150

1 evidence to the relevant passages of the pre-trial brief. Therefore,

2 where the pre-trial brief relates to issues under Rule 7(1) or Rule 7(3),

3 the witnesses and the exhibits have been linked in compliance with your

4 order, in substantial compliance with the order. I should say that the

5 order made reference to a Excel spreadsheet which we could not do on one

6 Excel spreadsheet because of the format under which we store our

7 information.

8 May I, with your leave, Your Honour, just review the preceding

9 comments of the Court?

10 [Prosecution counsel confer].

11 MR. STAMP: To close, Your Honour, may I just add that

12 notwithstanding all of that effort which we made, we did nonetheless

13 comply with the provisions of Rule 65 ter, and the efforts which we made

14 were in addition to what we were required to do under Rule 65 ter. Thank

15 you very much, Your Honour.

16 JUDGE ANTONETTI: [Interpretation] Very well. It is now 20 to

17 four. We do have to end this hearing for technical reasons. We are going

18 to have a 20-minute break and we will start again at four. We have until

19 7.00. So all the time we need in order to make head way. We will resume

20 at 4.00.

21 --- Recess taken at 3.45 p.m.

22 --- On resuming at 4.01 p.m.

23 JUDGE ANTONETTI: [Interpretation] The hearing is resumed. During

24 the break, following what had been said before the break, I reviewed my

25 order of 16th of December 2005 in the pre-trial brief filed by the

Page 151

1 Prosecution filed on the 31st of January 2006, I also reviewed it, and I

2 also reviewed the confidential annex A of that document. In my order I

3 took great caution in asking the Prosecution to produce a chart with the

4 counts of the indictment, locations, dates, names of the victims, I would

5 like to repeat that, the names of the victims, alleged authors,

6 perpetrators, units, persons, et cetera, specific cross-references to the

7 relevant paragraphs in the indictment, and reference to the specific

8 sentence, to a specific phrase in the indictment. Then I drew up a table

9 with the witnesses, their number, name, first name, the estimated length

10 of the examination-in-chief, has the witness already testified before the

11 Tribunal, reference to the pre-trial brief, and for the exhibit, number,

12 title, author, origin, reference to the pre-trial brief.

13 This was the chart entitled "counts in the indictment." And I

14 also drew up a chart related to the criminal responsibility of the

15 Accused, 7(1), 7(3), and I requested for reference to be made to various

16 paragraphs, sentences, witnesses, exhibits, et cetera, et cetera.

17 If my instructions had been complied with, the Prosecution and the

18 Defence would have had a very clear picture, overall picture, of the case,

19 and then one would only have had to follow these tables line by line.

20 Based on my order, the Prosecution filed a brief with various

21 annexes. I was quite surprised, very surprised, not to find in footnotes

22 any references to the witnesses or the exhibits. For example, paragraph

23 65 of the brief, page 16 in the English version of the brief, it is stated

24 that the Accused has not taken the necessary measures, et cetera, et

25 cetera. Then at this point, you could have introduced a reference to

Page 152

1 specific witnesses or to specific exhibits or relevant exhibits, but no

2 references have been included in the brief. On the other hand, if we

3 compare this to what was the practice before, it is my duty to take note

4 of the fact that the Prosecution made a remarkable efforts when we compare

5 to what was the practice in the past, but still these efforts are

6 insufficient considering what I had requested of the Prosecution. The

7 Prosecution submitted the list of its witnesses with references to the

8 relevant paragraphs of the indictment, stating whether these witnesses

9 were 92 bis witnesses or not, what were the counts of the indictment,

10 estimated length of the examination, paragraphs of the indictment,

11 protective measures or not.

12 This is very well and good but this was not quite in compliance

13 with what I had requested. Later on, an additional annex was filed, annex

14 A, and here we notice some progress. It's better. But it could have been

15 even better than that. (Redacted)

16 (Redacted)

17 (Redacted)

18 (Redacted)

19 MR. STAMP: I'm sorry, Your Honour, with respect, could I ask that

20 if names are going to be referred to, especially [indiscernible] persons

21 that could be done in private session and that that aspect be redacted as

22 soon as possible? Thank you very much.

23 JUDGE ANTONETTI: [Interpretation] Yes. Madam Registrar, please

24 produce an order for a redaction. I'm going to continue without quoting

25 any names. As I said there was a reference to the paragraph relevant

Page 153

1 paragraph of the brief. So this was already better than what was done

2 before. But it is insufficient when you think of what I was requesting

3 with regard to Article 7(1) and 7(3). It would have been very useful with

4 regard to 7(3), it would have been useful for some witnesses to know at

5 what stage of the events which document was related to which witness and

6 to which count, because if that had been done we would have an overall

7 picture of the situation. I must say that if we compare this document to

8 what was done in the past, it's much better. But it would have been even

9 better, it would have been ideal if the chart I had requested had been

10 completed. That would have been the ideal solution because then it would

11 have been much easier for everyone to follow the proceedings. This was a

12 concern of mine, to have this chart produced, in order to determine, but I

13 won't be able to do it in this case because I'm not going to hear the

14 case, but in another case, in the Prlic case, thanks to such a chart, I

15 will be able to find out whether there are redundant witnesses. For

16 example, if I take one indictment, and if I find that five witnesses will

17 deal with the same count, then I might wonder if all these witnesses are

18 really necessary, one or two witnesses might be enough, because, as you

19 know, it's up to the Chamber to decide which witnesses will be called, and

20 a chart as the one I have in front of me would allow the Prosecution, the

21 Defence, and the Judges to realise that sometimes there are not even --

22 not enough witnesses or too many witnesses.

23 That's a way of moving forward in the proceedings. Obviously, the

24 goal I had set has not been reached. Why not? Because this was a

25 revolutionary initiative in the work of this Tribunal. For the first time

Page 154

1 ever the Prosecution had been given very strict guidelines with regard to

2 the preparation of the Prosecution case. But as I said, this was in the

3 interest of everyone, because with such a document, we would have had a

4 clear idea of where we are heading. I can understand that for practical

5 reasons, related to the Excel software or others, it might have been

6 indeed difficult to comply with my order but I hope that for in the

7 future, my colleagues will adopt the same methodology and realise how

8 fruitful it can be. Before coming to a conclusion on that specific point

9 I would like to state that if I compare the situation here with what was

10 done in the past, the Prosecution has done a lot, but I think that it --

11 the Prosecution could have done better. It's always possible to do better

12 in life but you need to have the will to do so but I think that you have

13 the necessary will and you have to have the capacity to do it, and maybe

14 that was the problem. Maybe you didn't have the practical resources to

15 comply.

16 This being said, the trial will not start today, it will start in

17 a few weeks, I hope, so you will have time to complete the charts.

18 So we'll finish on that point, very important point according to

19 me because I do not expect to meet you again as part of a Status

20 Conference because I believe that we are very close to the end of the

21 pre-trial phase. I will encourage you to meet after the hearing, to try

22 to find out what problems still need to be solved.

23 Let me tell you that during the break, as for the translations, I

24 checked, and, yes, I issued an order for documents to also be translated

25 into B/C/S. So everything has been done. If the Defence was to be faced

Page 155

1 with an intractable problem then the Defence should call upon me and I

2 would issue a decision urgently on that matter. But I believe that both

3 the Defence and the Prosecution are working in a spirit of goodwill and

4 I'm sure that you will manage to find an agreement.

5 Now I'd like to turn to the Accused, to ask him about his

6 detention conditions, about -- and about his state of health. But before

7 moving on to that point, there was a practical issue. The issue of the

8 computer. I'd like to know if the Accused has received a computer from

9 the Registry in order to enable him to read the CD-ROMs. I am now going

10 to give the floor to counsel. The Accused will answer later on. But I'm

11 sure that counsel should know whether this has been done or not.

12 MR. TAPUSKOVIC: [Interpretation] I have been informed,

13 Your Honour, he is not able to use any technical equipment for the

14 preparation of his defence.

15 JUDGE ANTONETTI: [Interpretation] Well, General, can you please

16 stand? First of all, let me deal with the issue of the computer. If I

17 understand your counsel properly, you still have not received a computer,

18 you don't have a computer.

19 THE ACCUSED: [Interpretation] Thank you for raising this issue. I

20 feel that the issue of a computer is one that does not depend on me. It

21 depends most probably on a decision by the Registry or the Court. We are

22 not given computers. I mean, my own equipment. The detainees will

23 instead be given computers belonging to the Court. This will be done

24 after the 24th of April. Until that time, according to the latest

25 information, as far as I understand it, and I have only been able to

Page 156

1 glance at the document, we are to sign some kind of contract about the use

2 of those computers. So I do not have my own computer, although I do have

3 one, but it has not been given to me as this possibility has been

4 excluded. Computers will be provided and we will be able to use them only

5 once we receive them. That's all I can say about computers.

6 JUDGE ANTONETTI: [Interpretation] On that issue of the computers,

7 and it's a very important issue because it's related to the rights of the

8 Accused, several months ago I was notified during a Pre-Trial Conference,

9 and it might have been by you, I was informed that you had received a

10 personal computer sent to you by your family, but that this computer was

11 retained by the administration. I tried to find out why immediately, as

12 I'm bound to do when a problem arises. I immediately notified the

13 Registrar to get some explanation. The Registrar then explained to me

14 that a number of Accused had received computers provided to them by

15 friends or family, but that he had given the order to the head of the

16 Detention Unit to prevent distribution because, for security reasons, it

17 was necessary to review, to examine the memory of these computers, because

18 it was impossible to guess what could be found inside the computer itself.

19 Furthermore, then the issue of the electronic disclosure of documents was

20 raised. As you know, some of the Accused have decided to defend

21 themselves, on their own. They don't have lawyers. And in such cases,

22 the Prosecution discloses by CD-ROM to the Accused documents falling under

23 Rules 65 to 66.

24 So we are in a Catch 22 situation because under Rules of Procedure

25 and Evidence the Prosecution is obliged to disclose the documents

Page 157

1 electronically to the Accused, but the Accused who have decided to defend

2 themselves can't read these documents because they don't have computers,

3 and this situation has been ongoing for several months now.

4 Furthermore, for Accused as yourself who have counsel, I

5 personally think that it is absolutely normal for you to be able to access

6 these documents, to allow you to give instructions to your counsel and to

7 decide on your strategy. That's absolutely essential for any defence to

8 be conducted. Now I find out that you still do not have a computer and

9 that a computer will be given to you in one month's time. You gave the

10 date of the 24th of April.

11 I'm surprised. And all the more so since -- and this has been my

12 position in all cases before this Tribunal. I don't think that there

13 should be a separation between the administration of the Tribunal and the

14 judges because you are -- fall under the purview of the Chambers and the

15 judges should have their say in matters related to your defence and the

16 way you can conduct your defence, and I have noticed now that you are

17 handicapped in the conduct of your defence so as soon as we've closed this

18 hearing, I'm going to draft a memo to the Registrar in order to remind him

19 of this obligation, the obligation to provide you with a computer as early

20 as possible.

21 But none of this would have happened if the Judges fully fulfilled

22 the -- the duties according to the competence granted them by the Statute

23 of the Tribunal, in order to ensure equality of arms and a fair trial.

24 How can we talk equality of arms when the Prosecution has millions of

25 documents and when you are unable to assess these documents because you do

Page 158

1 not have a computer allowing you to access these documents? So once the

2 hearing has been adjourned, I will draft a new memo to the Registrar.

3 Second point I would now like to deal with is your state of

4 health. I must say that the last time we met, I wondered and I asked you

5 whether you were feeling well, and you said that everything was fine, but

6 I wanted to make sure that this was the case, and the minute after the

7 last Status Conference, in December, I asked the Registrar to send me a

8 report, a medical report, about your state of health, because I thought it

9 was my responsibility as a Judge to take all necessary precautions when it

10 came to your state of health. I issued that were in December, but it went

11 unheeded, and as a result, I issued an order requesting the Registrar to

12 disclose to me by the 1st of April a certificate related to you. This was

13 done. The physician of the UN detention centre issued a certificate

14 stating that everything was fine, and when a doctor says that everything

15 is fine, I hope it's the case.

16 And since this is one of my concerns in this case, I would like to

17 know, General, if you have anything to tell me about your state of health,

18 and what I find -- I'm particularly interested in is your psychological

19 state and your mental state. Do you have anything to tell me about this?

20 THE ACCUSED: [Interpretation] Your Honour, I wish to add something

21 I have already said about the computer in order to be more precise.

22 Today, we were given this document. When I mentioned the 24th of April,

23 that date refers to our obligation, the obligation of the detainees, that

24 is, those who, if they have their own laptops have to hand them over to

25 the administration of the detention unit. So most probably it's not

Page 159

1 correct that we will be provided with computers on the 24th, if I

2 understand the document correctly.

3 Let me repeat: We will be given an opportunity to use computers

4 if we sign that we will abide by certain rules, which in my view is not a

5 problem. I do not know, however, when the computers will be provided.

6 The condition for being provided with a computer is to go through the

7 appropriate procedure. So I wanted to correct this date because I don't

8 want it to appear that I have provided erroneous information.

9 As for my health, Your Honours, I don't know if I may raise any

10 other issues before I deal with my health, an issue that is not strictly

11 related to my health. May I have your leave to raise this issue,

12 Your Honour?

13 JUDGE ANTONETTI: [Interpretation] I'll give you the floor to deal

14 with any issue you might like to raise but, please, give me an answer with

15 regard to your state of health. Thereafter, you will be free to deal with

16 any other issue.

17 THE ACCUSED: [Interpretation] I will repeat, as I have already

18 said, that I do not have any health problems. Fortunately my health is

19 good. I am taking care to preserve it. As for the request to have my

20 state of health established, the contact between myself and the physician

21 took place a few days ago, not before. I do not think that this

22 constitutes any kind of negligence because I am sure that the doctor has

23 been informed that I'm in good health. Fortunately, I have only words of

24 praise for the physician, as far as the current situation goes. As for my

25 psychological situation, of course, the tension mounts when I read certain

Page 160

1 documents I am given which cause reactions in me, which I cannot avoid.

2 However, everyone has the right to accuse me and it's up to me to deal

3 with it.

4 I hope that I will be able to overcome my reactions to all these

5 arrogant and incorrect allegations, should my health permit. I will do my

6 best for everything to be done properly, and my health is good so I have

7 no problems with it.

8 JUDGE ANTONETTI: [Interpretation] Very well. On this issue,

9 second point, and then you can have the floor for other things. Under the

10 rules, it is my obligation to look into your detention conditions. Do you

11 have anything to say in this respect? Or do you think that the conditions

12 are good in the detention unit?

13 THE ACCUSED: [Interpretation] I feel that the conditions are good,

14 yes. There are certain matters that might be done better, but I don't

15 want to split hairs. These issues are not major ones and they don't

16 deserve to be emphasised, which is why I will not bring them up.

17 I think that everything is in good order. That's my experience,

18 at least, and that's how I'm treated. I have no problems in this regard.

19 JUDGE ANTONETTI: [Interpretation] Very well. You now have the

20 floor, if you want to mention other subjects. And this is not said in the

21 Rules, but always, as a Judge, I have given the possibility for Accused,

22 who are presumed to be innocent, to speak. As citizens they are free to

23 speak. So if you want to do so, please do.

24 THE ACCUSED: [Interpretation] Thank you, Your Honour. I wanted to

25 be very brief, and I will refrain from raising many issues which I might

Page 161

1 raise. Thank you for giving me the opportunity. I don't have to use the

2 opportunity to say everything. Time will tell and things will take their

3 course.

4 There are certain issues that are raised today that I did not

5 like. I will try to deal with them very briefly in not too many words.

6 I feel that a fair trial should be conducted differently, and by

7 this I am referring to certain standpoints of the Office of the

8 Prosecutor. I will just give you a few examples of what I mean. The

9 replies they are providing in the discussion conducted before you today

10 are replies that they know the reasons for best. However, in my view, the

11 material provided to me and my Defence counsel contains so many

12 unimportant and petty issues that, were this absent, we could focus better

13 on the major issues, the crucial ones. For example, there is a request by

14 someone asking his commander for leave to see his family, a few days'

15 leave, and this entire correspondence is provided. I don't know what its

16 purpose is. If I'm to be realistic, this can in no way support any

17 allegations against me. So I am not personally upset by it, but if the

18 amount of documents was reduced, the proceedings would be more efficient.

19 In this vast mass of allegations, which in the end will be proved to be

20 false, there are too many details giving the impression that the Office of

21 the Prosecutor has been very busy.

22 But a second issue I wish to raise is that there is a whole

23 collection of material constituted about statements of witnesses who

24 testified in the Galic case. Nothing has been added to their statements,

25 unless they want to add something when they actually come to testify in my

Page 162

1 case, in live testimony, and the whole text refers to the Galic case and

2 the testimony against Galic. That's why I wish to say that the

3 proceedings would certainly be more efficient and useful, it seems to me,

4 for all sides, if this was done differently. However, I will refrain from

5 interfering in other people's jobs, although I know from experience that

6 many people have been willing to interfere in other people's jobs, which

7 they knew very little about.

8 I hope all this will be set right and that I will not be swamped

9 with details that are of no use to anybody. I am now actually speaking in

10 favour of those who are working against me, not just in my own favour.

11 Were all these superfluous materials to be removed I would have a better

12 idea of what all this was about and what the real issues were, what the

13 crux of the matter is pertaining to all these events which cover a lengthy

14 period of time.

15 Thank you for giving me leave to speak, and if I have ventured

16 into territory which is not my proper domain, I apologise.

17 JUDGE ANTONETTI: [Interpretation] Thank you for what you have just

18 said. You tackle a major problem, the problem of disclosure of documents.

19 You have just told me that you are basically under an avalanche of

20 documents that seem of no use to you, and you are under the impression

21 that it is hard to sort out the essential things from those that aren't,

22 and in your view, only those exhibits directly linked to the counts in the

23 indictment should be disclosed to the Accused. This is an essential topic

24 you have just raised. The rules remain silent on this. It may have been

25 necessary to make sure that disclosure is under -- or is governed by the

Page 163

1 Pre-Trial Judge, that it is the Pre-Trial Judge who should have sorted out

2 the documents and exhibits, which would have put the Prosecution under the

3 obligation of justifying the reason why this or that document should be

4 disclosed to the Accused. You gave an example, that of a soldier asking

5 for leave. This is a perfect example.

6 On this, do you have some explanation, Mr. Stamp? We fully

7 understand the problem. Mr. Stamp, what can you tell us about this?

8 MR. STAMP: We do try, Your Honour, to restrict our disclosure to

9 what is necessary under the rules. I'm not sure if what is being

10 discussed here is disclosure of the exhibit list documents and the witness

11 list documents or all the disclosure because there is disclosure under

12 Rule 66, and 67, and 68. And that involves a lot of documents, especially

13 in respect of Rule 68 because Rule 68 refers to documents that could be

14 exculpatory, and although we try to make our searches a little bit more

15 specific, with the help of the Defence, many times they do result in a lot

16 of documents being located. However, I don't know if the Court is asking

17 me to comment on the specific example he gave. One of the matters that

18 could help in restricting the disclosure is if there could be agreement by

19 Defence in respect to many of the matters which they have put in issue.

20 For example, it may well be necessary that the command of a particular

21 unit, which is responsible for some event referred to in the indictment be

22 proven and a request from somebody in that unit for leave may well go --

23 may well be evidence in that regard but I don't know specifically the

24 document being referred to.

25 If there are continuous discussions and agreement between counsel,

Page 164

1 disclosure can be -- become more manageable, I would submit. Thank you

2 very much, Your Honour.

3 JUDGE ANTONETTI: [Interpretation] This is a technical problem, in

4 addition to what General Milosevic has told us, do the Defence counsel

5 have something to say? It doesn't seem that way.

6 MR. TAPUSKOVIC: [Interpretation] Your Honour, I don't have much to

7 say at this point. Perhaps at the end of today's proceedings, I could

8 broach one more question which would be of importance for the continuance

9 of our work, all the more so that I see that the Judges will be appointed.

10 The incontestable facts was a subject that was broached and I

11 think that what General Milosevic said refers to that. I have to say that

12 on several occasions, we did bring this up in our discussions with the

13 Prosecutor but we haven't received any offers yet. That is to say

14 questions where we can -- on which we can agree upon. So that in

15 preparing for trial, perhaps we can discuss some of these undisputed

16 facts, facts that are not challenged and that we can agree upon.

17 JUDGE ANTONETTI: [Interpretation] Well, please sit down, General.

18 You don't seem to want to speak about anything else, you can sit down.

19 THE ACCUSED: [Interpretation] With the Court's permission, may I

20 clarify something I said? Because I don't think you understood me fully.

21 JUDGE ANTONETTI: [Interpretation] Please go ahead.

22 THE ACCUSED: [Interpretation] First of all, when I said -- I

23 mentioned too many documents and papers. I didn't say what the witness

24 asked of his senior officer but I was talking about papers that tend to

25 appear, documents that tends to appear that have nothing to do with the

Page 165

1 proceedings. But somebody has to look through them and read through them.

2 Different tables, charts, things like that, questions that are absolutely

3 not linked to these proceedings. They have to do with things that

4 happened with requests that were made, with questions that had to be

5 resolved. And now I'm placed in a position where I have to look through

6 them and read through them to try and decide for why they have been

7 included among the material. So that's what I want to make clear. And to

8 repeat, the statements that I see, I see are statements that were given

9 several years ago, for example, and they referred to someone else. They

10 had to do with someone else. So this is just material that has been

11 recopied and disclosed again, presented again, and now I have to deal with

12 it all. So that's what I wanted to say. Thank you for your attention.

13 JUDGE ANTONETTI: [Interpretation] Very well. Well, I understood

14 you perfectly.

15 I would like to know whether the parties want to raise other

16 questions, starting with Mr. Stamp, do you have anything else to say?

17 MR. STAMP: Thank you, Your Honour. There is one issue. The

18 Defence in the pre-trial brief filing raised the Defence of alibi for a

19 particular period in the indictment. And while we are grateful for that

20 may I just take the opportunity to remind them, because this matter will

21 become the matter of proceedings very shortly, to remind them that the

22 rules provide that it is not sufficient just to raise the issue of alibi

23 but the Defence ought to submit the places where he was supposed to have

24 been at the relevant time, as well as the witnesses and the documents that

25 will go to substantiate the alibi. So I place our concern about that on

Page 166

1 the record and indicate that we will take appropriate steps if that is not

2 done in due course.

3 And I just -- may I just say by way of reminder, I don't know if

4 it's something that the Court had considered dealing with, there is

5 another outstanding motion, I think, before the Court. It is not filed by

6 any party to this case, it was filed by counsel in another proceeding

7 asking for access to our confidential matter in this case. I raise it

8 because earlier on Your Honour had referred to outstanding motions and did

9 not mention this one so I just raise it in case it was an oversight there.

10 Thank you very much, Your Honour.

11 JUDGE ANTONETTI: [Interpretation] Yes. I will give you the floor

12 in a minute but regarding the Defence of alibi, as you know, under the

13 rules, it is a possibility stated for but this is no obligation. The

14 Defence can at any time, but also during the pre-trial phase, say to the

15 Prosecution that it intends to raise a defence of alibi for specific

16 reasons. The accusation -- the Prosecution was informed and therefore

17 asked for further information of the Defence, whether, for instance, the

18 Accused was not in a specific place, and this should be provided by way of

19 documents or witness names. This is what the Prosecution would like to

20 know. I therefore turn to the Defence for an answer.

21 MR. TAPUSKOVIC: [Interpretation] Your Honour, we could have done

22 this later on. It doesn't say strictly in the rules that this must be

23 stated in our response to the pre-trial brief by the Prosecutor. But we

24 wanted our conduct to be proper and to announce this straight away and I

25 can say directly here and now, or rather I can give you a piece of

Page 167

1 information here and now, and that is that we have medical documents from

2 which you can see that for the wounds to the head and the eye at the front

3 where he was in command that he was treated at the hospital in Belgrade

4 and we have medical records and records that state that quite clearly.

5 Now, other things concerning that problem, even -- I don't think that it

6 is our duty to deal with all these matters, because that would enter into

7 the realm of questions that the Defence will deal with in the Defence case

8 and we would uncover our steps if we were to do so but we have absolute

9 evidence that at that time the person was in Belgrade undergoing medical

10 treatment and that they were in fact in hospital.

11 JUDGE ANTONETTI: [Interpretation] I take note of what you have

12 just said. However, what you just cited is very relevant. You are free

13 to prove the defence of alibi at any time. You don't have to do so right

14 now. You can wait until you present the Defence case. You are free to do

15 so. However, however, should it be established on the basis of the

16 elements you have that your client at the relevant time in the indictment

17 did not exert his command responsibility because he was in a hospital,

18 this may prompt the Prosecution to withdraw that count or change it

19 because it is obvious in international law and also in criminal law that

20 somebody who does not exert a command is replaced by somebody else, and if

21 that person was not there at the specific point in time obviously he was

22 replaced by somebody, all the more so since he had been admitted into

23 hospital. There may be some dispute, I don't know what your evidence is,

24 but if you do have such evidence, you are free to disclose it to the

25 Prosecution so that the Prosecution may look into the indictment and draw

Page 168

1 specific conclusions, but you know the trial has to be expeditious, your

2 client is in detention, and if you do have evidence likely to be

3 exculpatory, why should you wait? Why not provide them straight away to

4 the Prosecution? It's up to you. I, as the Pre-Trial Judge, cannot rule

5 one way or another. I am only here as a referee. I am not here to tell

6 you what to do but it is my duty to tell you that there are provisions in

7 the indictment that the Prosecution can at any time amend the indictment

8 but it can only do so if certain evidence is provided by the Defence.

9 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honour, for your

10 words of warning. I know that full well. But I do not wish to enter into

11 the details of all this because there are a number of problems we have to

12 overcome, not only whether he was the commander at that time but other

13 things as well. So I have presented this information before you as the

14 basic reason for which we are asking what we are asking in our motion, in

15 our pre-trial brief. If you wish to hear more details, I can give them to

16 the Prosecution, but at this point in time I think it is sufficient that

17 we have understood each other. I will take note of your guidelines and in

18 due course I will present the case to the Prosecution and the Court.

19 Thank you.

20 JUDGE ANTONETTI: [Interpretation] Fine. We are close to the end

21 of the hearing.

22 To sum up, I can see that there are still translation problems,

23 some documents are not translated yet, so I do urge the Registrar and the

24 registry to make sure that the documents be translated. I note that the

25 Prosecution can, on this very day, provide the documents that have been

Page 169

1 translated, even possibly documents related to witnesses 42, 56, and 127.

2 I believe I also noted that all parties wanted to -- the two parties

3 wanted to meet straight after the hearing in order to try to solve some

4 problems. Equally I note that the Accused said that he had no health

5 problems. This is being noted. Immediately after the hearing, I will put

6 the issue of the computer to the Registrar. Indeed, I think that is

7 something that has to be clarified. Regarding the defence of alibi and

8 Rule 67, we have had some exchanges. It is up to the Defence to do what

9 they feel they have to do. In this respect, I'm not supposed to

10 intervene. Still, I did try to guide the Defence.

11 As I indicated at the beginning of the hearing, I am going to

12 finalise my report to be sent to my colleagues by the end of the week. I

13 believe this case should start soon. The Prosecution has finished its

14 work regarding the pre-trial brief, the exhibit, and the witness list.

15 Even if it could have been better, a lot has been done by the Prosecution

16 compared to what was done in other cases. Therefore, there is no

17 objective reason why we should postpone any further, and a date for the

18 commencement of the trial should be found by the committee in charge of

19 it. I mean, if I was free to start, I could start in two weeks' time but

20 since I am scheduled to hear another case, I cannot make this promise to

21 you. You will have other judges hearing the case and they will be

22 appointed by the president of the Tribunal.

23 This being so, I do hope that we will not meet again. Of course,

24 it would be lovely to see you but this case has to move ahead. I wish you

25 all the best in this case. I'm going to send my report to my colleagues

Page 170

1 in a very few days' time. Thank you.

2 --- Whereupon the Status Conference adjourned at

3 4.56 p.m.