Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8094

1 Wednesday, 8 May 2002

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.05 a.m.

5 JUDGE ORIE: Good morning to everyone. Madam Registrar, would you

6 please call the case.

7 THE REGISTRAR: Case Number IT-98-29-T, the Prosecutor versus

8 Stanislav Galic.

9 JUDGE ORIE: Thank you, Madam Registrar.

10 May I first ask the parties whether their meeting of yesterday

11 afternoon brought any result which is important enough to inform the

12 Chamber about?

13 Mr. Piletta-Zanin.

14 MR. PILETTA-ZANIN: [Interpretation] Mr. President, thank you for

15 giving the floor to the Defence. The Defence would like to very briefly

16 tell you something about the discussions that we had yesterday afternoon,

17 if you will allow it.

18 JUDGE ORIE: Please do so.

19 MR. PILETTA-ZANIN: [Interpretation] Mr. President, as a matter of

20 fact, we did have a meeting with the representative of the Prosecution

21 yesterday, and unfortunately, if there is any progress, it isn't

22 considerable. What the Defence can propose that would be acceptable is

23 the following: Is that the witnesses, as they come here to testify, they

24 could come with a statement where they would actually read the basic

25 information, that is, all personal data, the names, date of births,

Page 8095

1 addresses, dates of any stays if there are any in Sarajevo or any other

2 cities, then the duties, the functions that they had, and also, the names

3 of people that they were able to contact in Sarajevo as part of their

4 activities.

5 Moreover, any more than that, the Defence could not accept and

6 that the reason is the following: We saw that a large number of written

7 statements were prepared by the Prosecution, and as the Defence and the

8 Chamber can know of course how these statements were prepared, made, and

9 if we accept the tendering, just a simple reading of a statement which

10 has been pre-prepared, that would be completely opposed to the sacrosanct

11 principle of the quality of arms and debate. Now, why does Defence think

12 that?

13 We can just refer ourselves to a recent example, Witness J, that

14 we had yesterday. We still remember very well the testimony of that

15 witness before the Chamber and you saw, Mr. President and Your Honours, to

16 which an extent the statements are important. Now, this witness spoke

17 about his brother who wasn't yet 18 and he spoke about this brother in an

18 ambiguous way, about possible membership of his brother in a military

19 unit. Now, the Defence would never have been able to ask questions that

20 they did ask if this was -- if he was not there. So it is very important

21 to find out about why a child would be near a military installation if we

22 only had a reading of a statement. Why is that? Because when we are

23 reading, reading a text which has been pre-prepared by one of the parties

24 in the case, there is no such a thing as testimony present. So it

25 would be -- it is not quite an oral copy of the statement. So that is

Page 8096

1 why this is not possible.

2 So in order to speed up the proceedings, and the Defence would

3 like to do that, but I don't think we want to really create a short cut.

4 If we create a short cut, what we are going to amputate would be the

5 rights of the Defence to a fair trial. And the Defence is very well aware

6 that this is perhaps just a formal question, however, we know to which an

7 extent, even if a form is not essential, it is still a very important and

8 a determining factor.

9 Now, Mr. President, if a rule or rules that are applicable to this

10 procedure can prevent the testimonies, that is because we want something

11 else. We want because the witnesses can testify before this Chamber.

12 Just reading the statements would not be anything else but just tendering

13 the statements, the written statements, and I believe neither you nor the

14 Defence would have the possibility to really cross-examine the witnesses.

15 And that is the reason why we believe that this is not admissible.

16 And there is also another reason. What we fear, Mr. President,

17 is that we would then be using this case for other cases, and this is why

18 the Defence has to indicate here that in the statement for Mr. Magnusson

19 that we have read on some 10 pages, there are only three or four passages

20 that relate to General Galic, more or less. Everything else is really of

21 interest to other people that are not concerned with this -- these

22 proceedings, neither directly or indirectly. So this is not even to do

23 with possible subordinates of General Galic. So what the Prosecution is

24 trying to do is to find certain weapons, so to speak, on the basis of

25 Article Rule 92 bis, and this is not really gaining time if we proceed in

Page 8097

1 this fashion.

2 Now, we know that the form is not essential, that is perhaps the

3 determining factor, but what the Prosecution is trying to do with this is

4 not to gain time, but to create a short cut and to cut off some rights

5 from the Defence, and that is the reason why the Defence does not agree

6 with this way of proceeding.

7 Another point I would like to raise, and I am sorry I have to do

8 it now, but that is the following: The Defence has to oppose another

9 point, it is a different point completely, and we have to oppose the way

10 that a part of these proceedings is being conducted -- not the way it is

11 conducted, but the way it is proceeding. Now, my co-counsel and I were

12 trying to spend a lot of time preparing for an important witness that we

13 were told would be on the 6th of May, and that was supposed to be Mr.

14 Richard Mole, and he was supposed to come on the 14th, 15th, 16th of

15 May, and -- or 6th of May, for some six hours of testimony, and this was

16 supposed to be a very important witness. And the Defence spent a lot of

17 energy preparing for this witness. Perhaps we spent more energy for him

18 than for other witnesses.

19 Now, yesterday we received a letter where it said that, let's

20 forget Richard Mole, that will not happen next week. We don't know

21 exactly when he will come, but then we are then given another list of

22 names and witnesses. 7th of May was yesterday and now it has been days

23 that we have been preparing ourselves for Richard Mole. We haven't had

24 time to prepare ourselves for other witnesses, and now this is even a more

25 basic question. This is a very important matter. The Defence must be

Page 8098

1 able to prepare itself and if they are not -- if they cannot prepare

2 themselves, if they are told at the last minute, "Just forget what you

3 have been doing so far; perhaps later we will come to this Witness" after

4 you forgot about your preparation. The Defence cannot accept it.

5 General Galic cannot accept this, considering that there is -- there are

6 problems of communication before the Defence and General Galic, who is

7 still in detention.

8 Now, what the Defence would like to ask now, considering the

9 state of health of General Galic - although perhaps we will speak about it

10 a little later - now, what the Defence would like to have is a break in

11 the proceedings in order to be able to prepare for these further

12 witnesses as they were communicated by yesterday, 7th of May, because

13 this has greatly upset the order of the witnesses. And I think we

14 would need a break in the proceedings for about ten days so that we can

15 be absolutely certain and prepared to -- for the Defence to do what they

16 are supposed to do, and that is to defend their client. Thank you very

17 much.

18 JUDGE ORIE: Mr. Ierace, would you respond.

19 MR. IERACE: Thank you, Mr. President.

20 Yes, I will respond. It appears that I have singularly failed to

21 communicate to the Defence at our meeting yesterday accurately what I had

22 in mind in relation to the reading of statements, because what my friend

23 has said about that proposal is not at all what I thought I had said.

24 Mr. President, what I proposed was that witnesses read the

25 relevant part of their statement out loud in examination-in-chief. That

Page 8099

1 would save some time because the interpreters would, of course, have a

2 copy of the marked relevant passages in the booths, and in that fashion,

3 we could save valuable minutes, at least, in getting the relevant parts of

4 the evidence before you in chief. Not for a minute did it occur to me

5 that the Defence would interpret that as a means to deprive them of

6 cross-examination of the witness in relation to the passages they had

7 read. But it would seem from what my friend has said that that was the

8 impression he walked away with. Of course, if that had been my

9 suggestion, that would have been subverting the very purpose of Rule 92

10 bis. But to be clear on it, and perhaps my friend can be assisted by

11 this, that is not what I proposed. It is certainly not what I intended to

12 propose. So perhaps he could at some point, either today in court or

13 later at a meeting, indicate what his position is in relation to witnesses

14 simply being invited to read the relevant portions of their statements,

15 perhaps with some modification, where required, by further questioning on

16 the part of the Prosecution and then, of course, we would move to

17 cross-examination.

18 Mr. President, I concur with my friend that there was not much

19 that came out of yesterday's meeting, unfortunately. We did our best to

20 creatively develop some proposals to put to you, but we were unable to do

21 that.

22 In relation to the calling of Mr. Mole, my friend said that we

23 wrote him a letter yesterday and told him to forget about Mole. Indeed,

24 we did send a letter, but in that letter, we said -- noted that we are

25 scheduling Richard Mole to appear for a later date. That, of course, was

Page 8100

1 not done, for arbitrary reasons. We had a difficulty at the last minute

2 yesterday in securing Mr. Mole's attendance. It was beyond our control.

3 It had to do with Mr. Mole's commitments. And that meant we had to then

4 reschedule him, which we have done for the 3rd of June. I am pleased that

5 my friends have prepared their cross-examination of him because,

6 hopefully, that will assist them in dealing with Mr. Mole when we do call

7 him. I regret it.

8 I appreciate that it is difficult for the other party when there

9 is a last minute revision of the order of witnesses, but I assure you, Mr.

10 President, and I assure the Defence, it was not done arbitrarily, and it

11 is probably fair to say that in this last quarter of the Prosecution case,

12 that sort of problem, in spite of all our best efforts, is likely to occur

13 because of the nature of the occupations of many of the witnesses that we

14 are calling in this last segment. We will do everything that we can to

15 avoid that.

16 Mr. President, that brings me to the list of witnesses that the

17 Prosecution intends to call in the remainder of the case. Yesterday, I

18 anticipated that this morning I would make available to you a list of

19 witnesses and, in essence, a proposal as to how the Prosecution would

20 complete its case within the time limit that you have set of the 5th of

21 July. I have given to the Defence and to you, through the Registry, a

22 list of witnesses still to be called, with some additional material.

23 Perhaps, Mr. President, I could explain some things in relation to that

24 list.

25 Firstly, a minor matter, Witness number 38, of course, was called

Page 8101

1 yesterday so that name should be removed. There should also be a revision

2 of the total hours of examination-in-chief. That figure of 66 hours

3 should be 64 hours.

4 Mr. President, the list of 40 witnesses still to be called means

5 that the Prosecution has deleted from its Rule 65 ter original list of

6 witnesses some 63. You will note that the first half dozen or so

7 witnesses are expert witnesses. I have included on the list an additional

8 witness, that being Barry Hogan. His name has come up repeatedly during

9 the Prosecution case thus far. And you would have noted that he is an

10 investigator in the employment of the Office of the Prosecutor. His

11 evidence is very much of a secondary nature during the sniping component.

12 At various times there were some references to him. He appears in the

13 video of the sniping and shelling incidents, and it is really more in the

14 matter of housekeeping of various facts and figures and dates that he

15 recorded, and I anticipate that there would be no problem, at least I

16 would hope so, if his evidence was to be given by way of 92 bis.

17 The same could be said for Zoran Lesic, who appears on this list

18 at number 26. You will recall that he has already given some evidence in

19 which he explained the modus operandi of the videoing and taking and

20 editing and production of the 360-degree photographs. And I did make

21 clear at that stage that I did propose to recall him. His evidence will

22 be of a similar nature of that of Barry Hogan, in addition to which he

23 will provide some information as to the time that the Office of the

24 Prosecutor obtained possession of various video clips, including those

25 which we used in the opening. For that reason, his evidence would seem to

Page 8102

1 fit comfortably within the guidelines of Rule 92 bis, which means, Mr.

2 President, that we are looking at 39 -- 38, 39 witnesses still to call to

3 give evidence in the Trial Chamber.

4 I have revised the estimates in respect of these witnesses, the

5 estimates of the time that the evidence in chief would take in respect of

6 all but the experts. With that qualification, it is something in the

7 order of 64 hours. I note that from today, and including today, until the

8 5th of July, we have some 35 days of court time remaining for the

9 Prosecution case. If one works on the basis of that translating as four

10 hours per day, it means we have left 140 hours of court time. I hasten to

11 add that for the days where we commence evidence in the morning at 9.00

12 and conclude at 1.45, I think in fact it is a little less than four hours,

13 but perhaps that four-hour estimate will do for these purposes. If one

14 multiplies the evidence in chief estimates of 64 hours by 2, working

15 on the basis of the rule that cross-examination is restricted in time to

16 that which the Prosecution took, we are left with figure of 128 hours, and

17 it becomes clear that we have a margin of 12 hours, which would barely be

18 adequate, and perhaps being more honest about it, would be inadequate to

19 accommodate the various objections, motions, technical difficulties, and

20 so on that we can anticipate over the remaining two months.

21 In addition, that leaves us with the experts. The reason that I

22 have not allocated them an estimate of evidence in chief is that I am

23 hopeful that some, if not most, if indeed not all of them, can be dealt

24 with in the same manner as we dealt with Robert Donia, the historian. In

25 other words, ideally, the witness simply gives his or her name,

Page 8103

1 acknowledges that they have prepared the relevant report, and then I sit

2 down.

3 In the case of Mr. Donia, the Defence required, I think it was two

4 days, to cross-examine him. The Defence -- in order for us to come up

5 with a -- as reliable estimate as we can, and by "we" I mean the Trial

6 Chamber as a whole, it is necessary to factor in how much time the Defence

7 thinks it will need. So, foreshadowing what I'm coming to, Mr. President,

8 it seems to me that this is perhaps a two-stage process. I anticipate

9 that all of the expert reports will be filed by this Friday. If we are

10 unable to meet that deadline in relation to one or two, I should imagine I

11 will have them all filed by Monday or Tuesday. If there is any problem

12 beyond that, at least I assure you that we will have a draft report

13 filed. I do not expect a problem.

14 The Defence under Rule 94 bis then has up to, and I stress those

15 two words, 30 days to indicate its position. I wonder whether the Defence

16 could look, at least in a preliminary fashion, at the reports when they

17 are filed and provide to the Trial Chamber at least an estimate by, say,

18 the end of next week, if not earlier, of how much time it thinks that it

19 will need, Defence will need, to cross-examine those witnesses. Then

20 perhaps we could arrive at a more realistic overall figure for the

21 Prosecution case.

22 Essentially, this particular problem underscores the difficulty

23 that the Prosecution has in this jurisdiction of estimating the length of

24 its case, as it is required to do in this jurisdiction. Simply put, the

25 -- there is -- the solution does not rest with the Prosecution entirely.

Page 8104

1 There is a variable factor and one which is controlled by the Defence, and

2 that is putting to one side unexpected factors which have nothing to do

3 with either party.

4 So, Mr. President, expert witnesses aside, we have restructured

5 the Prosecution case in a way which would be completed, if not by the 5th

6 of July, then shortly thereafter but, of course, that does not take into

7 account cross-examination of the experts. It may, of course, be that the

8 Defence does not wish to cross-examine any of the experts, but I would be

9 surprised if that was the case.

10 I wonder if there is anything else I can assist you with,

11 Mr. President. Perhaps I should indicate as I did foreshadow yesterday,

12 that there may be a minor change to the list of witnesses which I may be

13 able to make clear by next Monday, and for reasons I would be -- much

14 prefer to explain at that point rather than now, I should also make clear

15 if it is not apparent, and it should be, that by numbering the list of

16 witnesses still to be called, I do not mean to suggest that we would call

17 them in that order. Thank you.

18 JUDGE ORIE: Thank you, Mr. Ierace.

19 [Trial Chamber confers]

20 JUDGE ORIE: The Chamber is not intending to deal with all the

21 problems, including a suggestion of a ten days break, et cetera, et

22 cetera, right away. The thing we have to decide at this very moment is

23 how we will proceed with the next witness. I mean, that is the first

24 question that is in urgent need for an answer. Therefore, we will take a

25 break of 10 minutes in order to confer with the Chamber, but, of course,

Page 8105

1 not until after Mr. Piletta-Zanin has had an opportunity, or Mr. Ierace.

2 So we will have a break anyhow soon on the question on how to proceed with

3 the next witness and then we will deliberate on the other issues later

4 today or tomorrow.

5 Mr. Piletta-Zanin, you would like to --

6 MR. PILETTA-ZANIN: [Interpretation] Yes, thank you, Mr. President.

7 I am very sorry that my learned colleague didn't understand what I thought

8 I indicated clearly. I spoke, in any case, in French. I was speaking

9 about reading of written statements and it would not be, of course,

10 reading the totality of the statement but, of course, of passages or

11 perhaps whether it is half a passage or whole of the statement. This is

12 -- the problem is the same. Some statements are three pages. Some are

13 15. This is a question of principle and it is also a question of form,

14 but it is essential.

15 We cannot say, I believe, that the Defence didn't understand the

16 Prosecution's idea. Occasionally, the Defence does understand the ideas

17 of the Prosecution. Perhaps the Defence can even anticipate the

18 Prosecution's ideas. Rarely, that is true. But this hypothesis in the

19 case of Mr. Magnusson that we will see soon -- when we read the statement,

20 we saw that there are many things that have nothing to do with General

21 Galic. There are only three paragraphs, I believe, on a whole of 14

22 pages, that have to do with General Galic.

23 Now, Mr. President, I am at your disposal. I believe that I have

24 the floor.

25 MR. IERACE: Mr. President, I respectfully intervene at this stage

Page 8106

1 to remind my friend that Mr. Magnusson's evidence is to be given in closed

2 court and it would therefore be inappropriate for him to refer to the

3 contents of his statement

4 JUDGE ORIE: Yes. I think if you would have to discuss the

5 content of the statement, it would. But I think you are just referring to

6 the relevance of --

7 MR. PILETTA-ZANIN: [Previous translation continues] [In English]

8 Thank you for this intervention. It was clear to me.

9 JUDGE ORIE: So I do understand it, you are just referring to

10 Mr. Magnusson as part of his written statement being not directly relevant

11 for the case.

12 MR. PILETTA-ZANIN: That is exactly right.

13 JUDGE ORIE: So we don't have to discuss the content any further.

14 May I just ask you a question, Mr. Piletta-Zanin? If you look at

15 Rule 94 bis, we see that the main issue, that is -- of course, that is

16 about expert testimony, is the right of the Defence to cross-examine a

17 witness on the evidence presented in chief, whether it is written or oral.

18 You repeatedly told us that the right to a fair trial would be affected by

19 reading part of statements. I think it is not in dispute that the Defence

20 has a right to cross-examine the witness, whether he gave oral testimony

21 or whether the evidence he gave was in a written form.

22 Could you be more precise in explaining as in what way the rights

23 of the Defence would be affected if the evidence in chief would be given

24 in either by what you call a shortcut or at least in a condensed form? I

25 mean, the whole scala is between asking a witness through non-leading

Page 8107

1 questions, which would take a lot of time, up to the other end of the

2 scala, where the witness just reads his prior written statement.

3 Well, in this scala, we have to find perhaps a balance. Could you

4 tell us that, apart from the right to cross-examine the witness, in what

5 other way the rights of the Defence would be affected if in a condensed

6 form the evidence would be given by the witness?

7 MR. PILETTA-ZANIN: [Interpretation] Very well. Mr. President,

8 thank you for these remarks. And I think I need to make two

9 observations: The first would be to do with the Defence and the second

10 would be to do with your Chamber, and I should start with the observations

11 to do with your Chamber, but I would still start in logical way to do with

12 the Defence.

13 Now, first of all, if we take the example of Witness J that we

14 heard yesterday, if Witness J had simply read his statement prepared by

15 one of the parties, that is coming from one of the parties, that is the

16 Prosecution, for instance: "I was not in the army. My brother, wounded

17 or killed, was not in the army. However, I know that such and such an

18 incident happened on such and such a date." We would never have been

19 able, by looking at the witness, would not have been able to see or

20 understand that there was a problem to do with what he was saying. So

21 there is a huge difference between a reading of a statement that is done

22 by one of the parties or what the witness is testifying about, so what he

23 is going to say by himself rather than just repeating what has already

24 been prepared.

25 Now, that would - I am sorry to use this term - that would be a

Page 8108

1 farce. But the second remark has to do with your Chamber. Now, we saw

2 this witness and we saw something that was fundamental. There were

3 children that were near, admitted into military premises for any reason.

4 But this can explain a great number of things. This is the first time

5 that we were able to discover through a testimony this matter. Now,

6 without this testimony, we would never have been -- would never have been

7 able to find out, nor would your Chamber, that children under 18 years

8 were admitted near military premises if this witness by himself didn't say

9 these things the way he saw them, the way he felt them, the way he knew

10 about them. A simple reading wouldn't allow your Chamber to have this

11 feeling of realty of things, a sense of reality. What I am talking about,

12 a fumus veritatis, this kind of aroma of truth that you would not feel,

13 had it not been for this witness speaking for himself. Of course, the

14 Defence would not have been able to find out about it either. And this is

15 just an example, but this is the example that we were all able to see

16 yesterday.

17 Now, if we look at it systematically throughout this case,

18 throughout this trial, in other cases, in other trials, and obviously the

19 game and the strategy of the Prosecution is to have these fragments that

20 are happening developed in time and space in order to then have them

21 duplicated in other cases, in other trials. I am talking about the

22 Milosevic case, Plavcic case, other cases - it doesn't really matter - and

23 basically these cases, these fragments, can then be repeated in other

24 trials. They would be accelerated. There would be a short cut. I am

25 talking about respect of principles, and not just one particular case.

Page 8109

1 There are two aspects: There is this case with the example that we've

2 just shown and also the whole procedure, as a general rule of

3 international law. And I believe that I have been clear enough, Mr.

4 President. At least, I hope that the Prosecution has understood what I

5 said. Thank you.

6 JUDGE ORIE: If I do understand you, while you say that the

7 Defence would lose the advantage of starting with a live testimony rather

8 than a written statement because that could give them a chance to

9 cross-examine the witness on the wordings he used, the expressions he

10 used, the flavour, I would say, of his testimony in court.

11 May I also ask you: Could you provide the Chamber with any case

12 law because, as far as this Chamber knows, approximately half of the world

13 is starting with written testimony. I think, if I am thinking about the

14 jurisdiction you come from, it is not very common that you start with a

15 live testimony, but that -- I mean, it is not always. I know that you

16 have a lot of criminal procedures in Switzerland, but it is not a general

17 rule that you always start with an oral testimony in chief and that, on

18 the basis of that oral testimony in chief, that you cross-examine the

19 witness. At least, there are a lot of jurisdictions where you start with

20 the content of the file and that, of course, there is a right to call

21 those witnesses who have given written statements before and you examine

22 them in court. Is there any case law that would entitle the Defence to

23 start, as a beginning, as a basis of the cross-examination, with an oral

24 testimony rather than the content of a file containing written statements?

25 Is there any case law you could give to the Chamber to support the

Page 8110

1 thoughts you just developed?

2 MR. PILETTA-ZANIN: [Interpretation] Thank you very much for this

3 honour, Mr. President, if you think that I can spontaneously give you a

4 case law example and, of course, I will look for it, and if I find it, I

5 will give it to you. But I believe that this is not just a simple of

6 question of how we start the procedure. This is a question of respect of

7 the procedure that we have had in this trial. Although there could have

8 been other solutions in other judicial systems, the question is also of

9 respect of the continuity of the procedure that we have had so far.

10 JUDGE ORIE: I am asking it specifically because you have told us

11 that it would affect the fairness of the trial, and as we all know, in the

12 Statute of the ICTY, we find, in this respect at least, a perfect copy of

13 Article 6 of the European Convention of Fundamental freedoms and Human

14 Rights, and which is almost again a perfect copy of Article 14 of the

15 International Covenants on Civil and Political Rights. So therefore,

16 since you invoked the trial would not be fair any more, if we would

17 proceed otherwise, and since we all know that written statements as the

18 start of the proceedings in the trial court are practiced widely, and

19 since there is a lot of case law developed under Article 6 and Article 14,

20 I wondered whether there was any case law which would demonstrate that

21 this would be an unfair way of proceeding. I now do understand that you

22 say it is the tradition in the ICTY that you are relying upon. We will

23 take your observations into consideration.

24 Is there any additional observation to be made, Mr. Ierace?

25 MR. IERACE: Just briefly, Mr. President. The proposal that I put

Page 8111

1 to the Defence yesterday was offered and made on the basis that if there

2 was an agreement between the Defence and Prosecution, then that would

3 overcome any jurisprudential hurdles that may exist within the Tribunal.

4 I simply wish to express a note of caution as to whether, if we

5 were to proceed to allow witnesses to read parts of their statement

6 without the agreement of the Defence, then that would require a closer

7 examination of the jurisprudence to see whether indeed it is permissible,

8 and I would anticipate or, at least, interpret, Mr. President, your

9 requests for assistance as perhaps indicating a similar concern.

10 Mr. President, the second point I wish to make is that in relation

11 to the manner in which the next witness will give his evidence, I am

12 pleased that the Defence has proposed today that his evidence be

13 given in effect in short form, anyway, in other words, he be taken to the

14 relevant portions of his statement. And you may recall, Mr. President,

15 that is precisely what I proposed yesterday. I explained that again in

16 the meeting yesterday with the Defence, so I simply wish to make clear to

17 you that there is no dispute from the Prosecution with that approach. In

18 other words, even if Mr. Magnusson does not read the relevant parts of

19 his statement, I anticipate that, everything going as I hope, it will be

20 very short in chief.

21 JUDGE ORIE: Yes. I think then we need a couple of minutes for

22 the Chamber to confer, so we will have a break of I would say

23 approximately 10 minutes, 5, 10 minutes. Please stand by.

24 --- Break taken at 9.47 a.m.

25 --- On resuming at 10.24 a.m.

Page 8112

1 JUDGE ORIE: We did ask more of your patience than I indicated

2 before, and it shows how difficult it is to give time estimates. On the

3 other hand, we will give the parties a bit more guidance and not just on

4 the witness to come.

5 First of all, just reading out the statement of a witness is not a

6 solution. In that respect, the Chamber thinks that the Defence is

7 entitled to hear more from a witness than just to read out a statement.

8 On the other hand, the Chamber welcomes if the -- at least, leaves

9 it to the Prosecution to find a more efficient way, perhaps even a more

10 condensed way, of presenting the evidence to be given by a witness. And

11 the Chamber will be guided to a high degree by the subject matter of the

12 evidence given in deciding upon any objections, if there are any. So it

13 is mainly the subject matter that will guide the Chamber in its decisions

14 on whether objections are justified or not.

15 We will have to gain some experience with it. So we are not

16 leaving, I would say, the traditional order, so there are no changes in

17 the tradition of this Tribunal. But it's up to the Prosecution to find a

18 practice which is efficient, which might be condensed, and we will then

19 see what the subject matter is and then decide on whatever objection there

20 might be made.

21 The second issue is about the change of the order of calling

22 witnesses. If there are major changes and if it is a witness who will

23 testify for six hours, that is, as such, a major change, the Chamber wants

24 to be informed right way from the very moment that it becomes clear that

25 such a change is necessary. On the one hand, the Chamber does understand

Page 8113

1 that it is very difficult for the Defence to change its preparations for

2 the cross-examination from one moment to another; on the other hand, the

3 Chamber also understand that the Prosecution is not in full control of the

4 time of the witnesses it will call.

5 One of the solutions is that while preparing the examination or

6 the cross-examination of a witness, you should build in some flexibility.

7 That is valid for both parties. That means that if I prepare for the

8 cross-examination of a witness who will testify tomorrow and finish my

9 preparations at 10.00 this evening, then there is no flexibility at all.

10 If, on the other hand, you are working a couple of days in advance, you

11 will be able to be more flexible.

12 So that is, in general, an observation for the parties. The

13 Defence asked for a break of 10 days. The Chamber will not grant such a

14 break and, specifically, not for so many days, but whenever we are in a

15 situation where the Defence says, "Because of the change of the order of

16 calling witnesses, we are not able to prepare for Witness A, B, or C,"

17 then the Chamber would like to know specifically which -- on which witness

18 the cross-examination could not be prepared. We will then consider when

19 it was announced that there was a change of the order of calling these

20 witnesses and we will then decide whether, in respect of that specific

21 witness, there is any need to grant extra preparation time to the

22 Defence. And then, of course, as you have experienced during the last few

23 months, there are different ways of solving it, saying, "Well, we can't

24 expect the Defence to cross-examine the witness now," or "We ask from the

25 Defence that they would cross-examine the witness to the extent possible

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Page 8115

1 for this very moment and will grant extra time if needed."

2 So the Chamber wants to be informed because the Chamber is fully

3 aware of the problems, especially the change of the order creates for the

4 Defence, and therefore we want to be informed if it comes to a specific

5 witness. Then, of course, we are also better able to assess how much

6 extra time you needed. For example, a witness which would take six hours

7 to be examined in chief would be heard tomorrow although scheduled only in

8 two weeks, that would ask for a different decision compared to the

9 situation where a witness for one hour is scheduled for Thursday, would be

10 changed with a second witness also scheduled for Thursday. So we want to

11 take decisions in that respect in view of the specific situation where the

12 Defence has indicated what time they would need for preparation.

13 I indicated that we would only deal with the way we would proceed

14 with the next witness, so the 20 minutes extra time we took we used to

15 give you some guidance on the other issues as well.

16 Is it clear to the parties what the Chamber intends to do? I see

17 Mr. Ierace, for the transcript, you are nodding yes.

18 For the Defence, Ms. Pilipovic, it is clear.

19 Then before having the usual break, I would like to know - I don't

20 know whether this can be done in open session or not - but is the Defence

21 prepare to hear the examination-in-chief and is the Defence also prepared

22 to cross-examine the witness scheduled for today?

23 MR. PILETTA-ZANIN: [Interpretation] The Defence is very grateful

24 to you, Mr. President. We are prepared to continue carrying out our tasks

25 and we are able to defend our client in the appropriate manner.

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Page 8117

1 JUDGE ORIE: Yes. We will do that. That means that I think it

2 would be better to call Mr. Magnusson after the break, Mr. Ierace. I

3 didn't hear that the Defence is not ready to proceed with the next

4 witness, so that means that we will start after the break, in closed

5 session, with the witness, Mr. Magnusson.

6 There is one issue still to be dealt with at this very moment and

7 that is the documents and exhibits we have seen yesterday when Witness J

8 was examined.

9 Madam Registrar, would you please guide us through these

10 documents.

11 THE REGISTRAR: Exhibit P3280.Z, video under seal; Exhibit

12 P3279.ZZ, 360 degree movie, under seal; Exhibit P3234, map marked by

13 witness bearing ERN number 02081029, under seal; Exhibit P3684, pseudonym

14 sheet, under seal; Exhibit P3279.Z, photograph marked by witness, under

15 seal; Exhibit D105, map marked by witness, under seal; Exhibit D106, map

16 marked by witness; Exhibit D107, official report dated 4 September, 1993,

17 in B/C/S, under seal; Exhibit D107.1, English translation under seal.

18 JUDGE ORIE: Yes.

19 [Trial Chamber and registrar confer]

20 JUDGE ORIE: I am just checking whether D106 should be admitted

21 under seal or not. I think there is no reason to do so. It is just

22 marking on that map without any names or indications of. So that could be

23 admitted not under seal.

24 Mr. Ierace, I also saw P3119 on our list -- oh, yes, Mr. Mundis.

25 The name sheet had a different number. I am just trying not to forget

Page 8118

1 any of the --

2 [Trial Chamber and registrar confer]

3 JUDGE ORIE: Is that the exhibit you didn't use?

4 MR. MUNDIS: That is right, Mr. President, it was duplicitous, and

5 to save time, we opted not to use it.

6 JUDGE ORIE: Yes, so that's clear to us now. Since there are no

7 objections, they are all admitted in evidence, all under seal with the

8 exception of D106.

9 We will then start after the break in closed session. I suggest,

10 if there is no major objections, that we resume at 11.00.

11 --- Recess taken at 10.35 a.m.

12 --- Upon resuming at 11.04 a.m.

13 JUDGE ORIE: I see that we are in closed session.

14 [Closed session]

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4 [Open session]

5 JUDGE ORIE: Then I repeat what was just said. During the last

6 10 minutes of the closed session where we should have returned into open

7 session, it was verified whether the protective measures in respect of

8 Witness R included voice alteration, as was not indicated on the list

9 provided by the Prosecution. We have verified, by looking at the request

10 of the 30th of October and by looking at the oral decision given on the

11 6th of December, whether voice alteration was requested and granted. It

12 was.

13 That means that we can't continue at this very moment. If there

14 is any other issue to be raised by the parties, then it would be the

15 appropriate time to do so, if it is at least a small issue. You raised

16 already the grattage.

17 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President. This is

18 just in order not to waste time. Do we know whether tomorrow we are in

19 here or in the other courtroom?

20 JUDGE ORIE: [Previous translation continues]...this is what I

21 wanted to indicate when we would adjourn. If that is the only issue to

22 be raised, then we adjourn until tomorrow morning 9.00. Not this

23 courtroom, but Courtroom II.

24 --- Whereupon the hearing adjourned at

25 1.45 p.m., to be reconvened on Thursday,

Page 8178

1 the 9th day of May, 2002, at 9.00 a.m.

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