Tribunal Criminal Tribunal for the Former Yugoslavia

Page 202

1 Thursday, 6 November 2003

2 [Status Conference]

3 [Accused not present]

4 --- Upon commencing at 3.00 p.m.

5 JUDGE ANTONETTI: [Interpretation] Could the registrar please call

6 the case.

7 THE REGISTRAR: Case number IT-01-47-PT, the Prosecutor versus

8 Enver Hadzihasanovic and Amir Kubura.

9 JUDGE ANTONETTI: [Interpretation] Thank you. Before asking those

10 parties to give their appearances, I should like to introduce myself. I

11 was appointed by this Chamber II. Judge Agius will be the Presiding Judge

12 and the two Judges will be both I and Judge Mumba. I was designated as a

13 Pre-Conference -- Pre-Trial Judge. In the light of future proceedings,

14 the case is due to start on the 2nd of December, presided over by myself

15 and two Ad Litem Judges who have been appointed today. So as of the 2nd

16 of December, these will be the Judges in charge of the case.

17 So I would like the Prosecutor to introduce himself, please.

18 MR. WITHOPF: Good afternoon, Your Honour; good afternoon,

19 counsel. For the Prosecution appear Mr. David Re, trial attorney;

20 Ms. Kimberly Fleming, trial support; and I, Ekkehard Withopf, Senior Trial

21 Attorney.

22 JUDGE ANTONETTI: [Interpretation] And the Defence, please.

23 MS. RESIDOVIC: [Interpretation] Good afternoon, Your Honour. For

24 General Enver Hadzihasanovic, Edina Residovic, Defence counsel,

25 attorney-at-law from Sarajevo; and Stefan Bourgon, lead counsel, from

Page 203

1 Montreal.

2 MR. IBRISIMOVIC: [Interpretation] Good afternoon, Your Honour.

3 For Brigadier Kubura, Mr. Ibrisimovic and Mr. Dixon.

4 JUDGE ANTONETTI: [Interpretation] Thank you very much for having

5 introduced yourselves. The Status Conference is being held today pursuant

6 to Article 65 ter. The most recent Status Conference was held in -- on

7 the 9th of July, 2003. Pursuant to this Article, this new Status

8 Conference should be held thereafter and as the senior trial attorney

9 convened you here today and gave me a breakdown on the meeting which you

10 held yesterday.

11 Today there are ten items on our agenda, and we shall look into

12 the various pending motions. We shall also discuss communication on

13 exhibits pursuant to Articles 66 and 68 of the Rules of Procedure and

14 Evidence. We shall look into the question of communication of exhibits in

15 other cases, Kordic, Cerkez case, for instance, and also the pending

16 question of the access by the Defence to documents of the European Union,

17 and we shall also address an issue number 5 pursuant to Article 65 ter

18 (H), the question of agreed facts and disagreed facts between the parties.

19 We shall also look into possible communication of exhibits by the

20 Prosecution to the Trial Chamber. We shall also look into the preparation

21 of the Pre-Trial Conference, and we shall also address the issue of the

22 number of witnesses and time allotted thereto.

23 Item 8, we shall look into the question of the accused placed in

24 detention. We shall also address the issue of the transcripts, and also

25 perhaps other miscellaneous items that have not been included in the

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1 agenda.

2 So let me turn to the first item for the time being, possible

3 motions. Can the Defence now clearly confirm that there are no more

4 pending motions?

5 MS. RESIDOVIC: [Interpretation] Your Honours, we are still

6 awaiting the decision in the case Naletic, Martinovic wherein we have

7 asked for access to confidential material. This decision is still

8 pending.

9 JUDGE ANTONETTI: [Interpretation] Thank you very much. As far as

10 Mr. Kubura's Defence counsel is concerned, are there no further pending

11 motions?

12 MR. DIXON: Your Honour, there is one further motion to be filed

13 by Mr. Kubura, and that relates to the new charges in the indictment in

14 respect of the alleged incident in Miletici. This is not going back to

15 whether the amendment should have been permitted or not, because there has

16 been a clear decision taken on that. There is simply an issue regarding

17 the form of the indictment, the way in which the new charge has been

18 pleaded in the indictment. And that motion, a very short motion involving

19 one issue, will be filed tomorrow by the Defence team for Mr. Kubura.

20 Your Honour will be aware that we have indicated that Mr. Kubura's

21 instructions in respect of those charges, that he will plead not guilty to

22 it. However, before that occurs, there is one matter regarding the form

23 of the language the charge has been put that he does wish to challenge and

24 we would expect that to be filed tomorrow and for a ruling to take place

25 before the commencement of the trial.

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1 This is the only outstanding motion, Your Honour.

2 JUDGE ANTONETTI: [Interpretation] Thank you very much. As far as

3 the new charges are concerned, we had stipulated that these would be

4 officially served to the accused, Mr. Kubura, by the 28th of November. So

5 it is desirable that any motions to be submitted by that date.

6 Does the Prosecutor want to address the issue of the form of the

7 indictment as regards the new charges included in the indictment in light

8 of what the Defence has just said?

9 MR. WITHOPF: Your Honour, once the Defence for the accused Kubura

10 has filed the motion, we will respond. We will certainly not need the 14

11 days. We will respond within very few days.

12 JUDGE ANTONETTI: [Interpretation] Thank you. I should like to

13 move on to the next item, item 2, i.e., disclosure of exhibits by the

14 Prosecutor to the Defence.

15 As regards this particular issue, we, pursuant to Article

16 66(A)(ii) of the Rules of Procedure and Evidence, it seems that we have

17 not finalised this. Could the Prosecutor please tell us more about it, a

18 point which was mentioned yesterday. It is desirable that prior to the

19 Pre-Trial Conference, we have the definitive information as regards this,

20 please. Prosecutor, you have the floor.

21 MR. WITHOPF: Your Honour, I can give you an overview about the

22 current status of disclosure. The Prosecution has on a continuing and

23 ongoing basis disclosed materials which do fall under Rule 66(A)(ii) and

24 Rule 68. The Rule 66 (A)(ii) disclosure is almost complete. The

25 Prosecutor has disclosed all but one OTP witness statement. The ISU

Page 206

1 researches currently on the witness list of the Prosecution are completed.

2 The vast majority of the search results have been assessed by the

3 Prosecution team, they have been reviewed, and prior statements have been

4 disclosed accordingly.

5 Currently there are nine witnesses which still are about to be

6 reviewed, nine witnesses out of 134, as Your Honour certainly is aware of.

7 If there are any prior statements, such prior statements will be disclosed

8 in very near future.

9 B/C/S statements of the five additional witnesses whose statements

10 we've taken end of September, beginning of October this year will be

11 available for disclosure tomorrow, and the B/C/S translations of the Rule

12 92 bis statements we've taken in April will be disclosed today immediately

13 after the Status Conference.

14 In respect to Rule 68, it is an ongoing obligation, disclosure is

15 ongoing, and due to the trial date early December, researches done by ISU

16 do have priority. Significant portions of Rule 68 materials have been

17 disclosed in the past, in particular the most relevant document

18 collection, the Sarajevo collection, has been disclosed in its entirety at

19 the very early stages of the proceedings. More material, however, will

20 follow.

21 The Prosecution has submitted to ISU a priority list of search

22 criteria, Rule 68 search criteria. The priorities have been identified

23 following the order the Prosecution intends to lead evidence at trial.

24 That means, number one, in respect to Dusina, number 2 in respect to

25 Miletici, and number 3 in respect to Maline and Bikosi. The obvious aim

Page 207

1 is to have such materials being disclosed at the time evidence will be led

2 at trial.

3 JUDGE ANTONETTI: [Interpretation] Thank you very much. As far as

4 Article 68 and 66 are concerned, the Defence submitted a number of

5 remarks. I would like them to confirm the issue regarding Article 68,

6 please.

7 Who would like to take the floor?

8 MR. BOURGON: [Interpretation] Good afternoon, Judge. I'm happy to

9 take the floor for the first time in this case. I would like to welcome

10 you to the International Criminal Tribunal of the former Yugoslavia.

11 JUDGE ANTONETTI: [Interpretation] Thank you.

12 MR. BOURGON: [Interpretation] As regards your question whether the

13 Defence had any comments to make as regards the communication of

14 disclosure of material as pursuant to Article 66(A)(ii), we would like to

15 inform the Trial Chamber and you, Presiding Judge, about this. According

16 to the best case, according to the Rules of Procedure and Evidence, the

17 disclosure of 66(A)(ii) should be made a very short time after the initial

18 appearance of the accused before the ICTY. Of course, as the Prosecutor

19 mentioned, the obligations of the Prosecution as regards the

20 investigations with a view to preparing the case which will be heard

21 before this Chamber is an ongoing obligation, and the investigations are

22 still under way while the case is being prepared.

23 However, it is to be noted that the accused and the accused in

24 this particular instance did stand before this court in the month of

25 August 2001. We are now in the month of November 2003. More than two

Page 208

1 years have gone by, and during the preparation of this case, the

2 Prosecutor is telling us today, as he mentioned to us yesterday, that

3 there are still new witnesses coming in, the statements of which need

4 still to be handed over.

5 We think that as part of the Defence team this is something which

6 the Chamber should be informed about. In other words, we were told two

7 weeks ago that there would be five more witnesses, one new witness this

8 week and additional witnesses which will be submitted over the next few

9 weeks. And we have only 30 days to go before the beginning of the trial.

10 So we believe that this is noteworthy and should be brought to the

11 attention of the Trial Chamber.

12 As far as Article 68 of the Rules of Procedure and Evidence are

13 concerned, we would like to bring to the notice of the Trial Chamber that

14 since the preparation -- preparation of this trial, we are entitled to

15 disclose a number of documents, and this has been -- the obligation has

16 been met, and over the following months we have been receiving a number of

17 documents pursuant to Article 68.

18 Yesterday, we received a new set of documents. This was submitted

19 to us by the Prosecutor, entitled the Vitez collection. The Prosecutor,

20 following my submissions, will certainly wish to spell this out and

21 underscore the importance of the disclosure of such a collection of

22 documents. The Vitez collection, as these documents have already been

23 checked, as some of these documents have already been identified and

24 handed over to the Defence, and this being of disclosure -- or considered

25 disclosure of exculpatory material.

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1 We believe that three weeks before the commencement of the trial

2 documents representing 80.000 pages is something which should certainly be

3 brought to the attention of the Trial Chamber before the beginning of the

4 trial.

5 The last comment we would like to make as regards disclosure of

6 material 66(A)(ii) and 68 is a question of translations. We were going to

7 address the issue of translation of documents all at once and a little bit

8 later at this hearing. Thank you.

9 JUDGE ANTONETTI: [Interpretation] Mr. Kubura -- would the counsel

10 for Mr. Kubura wish to take the floor with regard to issues that have just

11 been mentioned?

12 MR. IBRISIMOVIC: [Interpretation] Your Honours, we fully subscribe

13 to the position of the Defence counsel for Mr. Hadzihasanovic.

14 JUDGE ANTONETTI: [Interpretation] So in the light of what has just

15 been said by the Defence team, I shall turn to the Prosecutor again. In

16 effect, we discover that a few weeks before the beginning of the trial new

17 witnesses are being added onto the list as the Defence team has just

18 mentioned. The preparation of the trial has lasted two years, which is a

19 very long time, and witnesses are coming in, so to speak, at the last

20 minute.

21 Also, the question remains as to these documents. The Vitez

22 archives that were brought to the attention of the Defence team that

23 amount to more than 80.000 pages and thus a few days before the beginning

24 of the trial. It's something -- what major obstacle that prevented you

25 from disclosing these documents in a time span which would have enabled

Page 211

1 the Defence team to run through these documents?

2 Mr. Prosecutor, could you perhaps explain this, please.

3 MR. WITHOPF: Your Honour, if I may start with the so-called Vitez

4 collection. The issue of the Vitez collection is, in the opinion of the

5 Prosecution, highly exaggerated. The Vitez collection, that is correct,

6 it is a collection comprised of some 81.500 pages of documents. The

7 material is about the activities of the HVO Vitez Brigade in the Lasva

8 area during 1992 and 1993. Thus and in that respect we do agree with the

9 Defence, the material is potentially relevant, also relevant under Rule

10 68.

11 However, that doesn't mean that the complete collection, the

12 complete Vitez collection is relevant under Rule 68. Not the whole

13 collection, only bits and pieces if at all do fall within the scope of

14 Rule 68.

15 What, however, is even more important, such materials were part of

16 the Rule 68 ISU searches done by the Prosecution over the last two years,

17 and they were -- the collection will be searched for the Prosecution's

18 Rule 68 search criteria in future as well. The reason why we disclosed it

19 as a whole collection is to allow the Defence to do their own electronic

20 searches and using their own search criteria.

21 The Rule 68 search criteria of the Defence may be different ones

22 as the Prosecution is using.

23 The disclosure of the collection as a whole yesterday has actually

24 been a professional courtesy of the Prosecution that, and it's not the

25 first time, goes far beyond its obligation under the Rules. The

Page 212

1 disclosure of the whole collection facilitates the Defence preparation for

2 trial.

3 I also wish to emphasise that the Vitez collection, this

4 collection will form part of the so-called (E) disclosure that will happen

5 in some ten to 14 days. In about two week's time there will be 1.5

6 million if not even more pages of documents available for the Defence.

7 Maybe there are documents that fall under the scope of Rule 68, maybe not.

8 Summarised, based on these facts, the Defence argument in

9 particular in relation to a potential start of the trial on the 2nd of

10 December this year is a highly exaggerated one. We consider it being a

11 quite artificial one. It is the opinion of the Prosecution that it is

12 actually a non-issue, certainly not an issue to be raised in the context

13 of the trial date.

14 If I may then address the other issue about additional witnesses.

15 It is correct, the Prosecution has informed the Defence that it will

16 contact a number, a small number of individuals in the course of the next

17 days. We cannot yet anticipate how many of such individuals will finally

18 be witnesses for the Prosecution. There may be a few additional

19 witnesses. It's highly likely. Whenever we get statements, they will be

20 disclosed immediately. We anticipate disclosure basically on more or less

21 the day the statements will be taken.

22 And, Your Honour, as Defence counsel would certainly appreciate

23 that investigations do have their own logic, and to approach a number of

24 people at a later stage of the investigation depends upon the material the

25 Prosecution has got, the result of analysis the Prosecution has done, the

Page 213

1 material that has been made available as a result of requests for

2 assistance, and it's the sequence of all this that forces the Prosecution

3 to now certainly at a somewhat late stage to talk a to a number of

4 individuals. I think this is basically the normal way of procedures,

5 anyway. Thank you very much.

6 JUDGE ANTONETTI: [Interpretation] Thank you. So I have heeded

7 your remarks, and as well as the answer provided by the Prosecution.

8 We shall move on to item 3, the additional issues relating to the

9 disclosure of exhibits in other cases, Kordic and Cerkez case in this

10 instance.

11 As you know, the Appeals Chamber authorised the Defence to access

12 these exhibits. As the senior legal officer reminded us of, the registrar

13 and the Prosecutor have set up a working party of interns who will review

14 these documents and delete any mention of names of protected witnesses so

15 that all of this should -- is under way and should enable the Defence to

16 have these exhibits on time.

17 Does the Defence team have any remarks to make on that count?

18 MS. RESIDOVIC: [Interpretation] Your Honour, it is true that in

19 keeping with the decision of the Appeals Chamber we have gained access to

20 confidential material in the Kordic and Cerkez case in order to review it.

21 I just wish to remind you that in September 2001, the Defence counsel have

22 applied for access to confidential material in this and in other case.

23 Unfortunately, before the decision of the Appeals Chamber, we were unable

24 to start the review of this material in the Kordic and Cerkez case.

25 According to the decision of the Appeals Chamber, the Prosecution

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1 was supposed to make available to the Registry before the 22nd October all

2 references to material that should not be made available to the Defence.

3 As my colleague Stefan Bourgon just mentioned, we are nearing the trial

4 date.

5 The Kordic and Cerkez case is one of the most important cases out

6 of those linked with ours. We had access to material from another seven

7 cases, and we are expecting to gain such access to material from

8 Martinovic and Naletilic case.

9 Repeatedly at Status Conferences and at 65 ter meetings, we

10 pointed out the importance of gaining access to this material before the

11 start of the trial, and we are very grateful to the Trial Chamber for the

12 efforts they have made to make it possible for us.

13 The situation as of today is the following: Out of 3.000

14 documents, most of which are public, we still do not have access to 217

15 documents that need to be redacted. Out of 73 protected witnesses, we

16 have not gained access to a single one in expectation of the redaction of

17 their statements. Out of 2.355 motions, 710 are public, 196 are ex parte,

18 and 188 remain that are unredacted.

19 There are documents that we have access to and that contain more

20 than 10.000 pages, which means that we have a lot of work to do concerning

21 this confidential material.

22 In the letter received from the Registry of 3rd November 2003, it

23 says that the Registry is making every effort to finalise the redaction of

24 these materials by the end of November, only a few days before the

25 beginning of trial, which means that no time at all is left for the

Page 215

1 Defence teams to reviews these documents and familiarise themselves with

2 it before the beginning of the trial.

3 We wish to bring this to your attention all the more so because

4 the Registry had promised to deliver this material in electronic form,

5 which, for us, means that we will have to make additional effort to

6 translate these documents from electronic forms into other forms and only

7 then start reviewing them.

8 We are again asking the Registry to give us access to this

9 material as soon as possible and to enable our legal assistants to have

10 direct insight, direct access to be able to select the documents as we are

11 trying to copy them this week, and we wish on our part in this case to do

12 everything in our power to be well prepared. We would certainly not like

13 this to become a reason preventing the trial from starting when due.

14 I wish to emphasise that the Defence counsel for General

15 Hadzihasanovic and Brigadier Kubura met before this conference, and we

16 have agreed that only one of us should present our positions on behalf of

17 all of us. As for the positions I have just made clear, you can

18 understand them as agreed by the Defence team of Mr. Kubura. Thank you.

19 JUDGE ANTONETTI: [Interpretation] All right. On this item, the

20 Trial Chamber is perfectly aware of the difficulties you are encountering.

21 We have tried to make the Registry give you access to all the material

22 already redacted as it becomes available to avoid large amounts of

23 material landing on your desk at once, which would prevent you from

24 familiarising yourself with all of them.

25 I will ask the senior legal officer to consult the Registry and

Page 216

1 see whether it could be possible to enable you to have access to such

2 material as soon as possible, the material that has already been redacted,

3 processed and can be disclosed as of now.

4 Does the counsel for the Prosecution have anything to say to this?

5 MR. WITHOPF: Only very few comments, Your Honour. First of all,

6 it's certainly a serious issue. Secondly, it was actually the Prosecution

7 which alerted Chambers and Defence counsel about the voluminous materials.

8 I wish also to emphasise that the delay is certainly not caused by the

9 Prosecution.

10 There is a working group in place, as has been mentioned by you,

11 Your Honour. The working group is heavily assisted by the Prosecution in

12 order to enable the Registry, under whose direction the working group is

13 working, to enable the Registry to hand over such materials at their

14 earliest possibility.

15 And I finally wish also to say that the vast amount of the Kordic

16 and Cerkez materials have been public materials, as such has been

17 available to the Defence since years, actually. Thank you.

18 JUDGE ANTONETTI: [Interpretation] Fine. We therefore hope that

19 this question will be settled to the satisfaction of all parties.

20 Item 4 is a question which remains unanswered to a certain extent,

21 access to the documents of the EU. It was brought to my attention

22 yesterday that response was provided by Mr. Solana, but his response does

23 not settle the whole question. He asks you to go into detail, into the

24 nature of the archives which you would like to have access to.

25 Consequently, you still need to let them know what it is or what kind of

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Page 218

1 documents you wish to have access to.

2 Mr. Solana is, of course, wanting to meet your request and is as

3 cooperative as possible.

4 What is your point of view on this matter, the Defence team?

5 MR. DIXON: Your Honour, we will certainly look to take up that

6 cooperative hand that has been extended to us, and we plan to meet with

7 the headquarters of the European Union Monitoring Mission in Sarajevo to

8 seek to provide the details they require in order to get the documents,

9 Your Honour.

10 Our view, however, is that we have specified in some great detail

11 the documents that we require in terms of the geographical area concerned,

12 the time of the documents, the nature of the documents; and of course in

13 all of that have stressed why the documents are relevant to our case.

14 There does not appear to be any dispute about the relevancy of the

15 documents. Our own Trial Chamber in the past has requested the EU to

16 provide these documents on the basis that they are relevant. It simply

17 seems to be a question of attention to specify as far as is possible which

18 documents are required.

19 We have gone as far as we can because it is difficult without

20 seeing the documents to be able to go into much more detail, but we will

21 meet with the monitoring mission to see if further details can be provided

22 so that we can obtain these documents as soon as possible, because yet

23 again it will be a number of documents, in the thousands, which if we do

24 obtain access to them we will have to review before the trial.

25 I don't wish to labour once again the delays that have occurred in

Page 219

1 this matter but it is something we have been raising in the case since the

2 beginning of the case in August 2001. And if we do get documents now, yet

3 again we will have to review them in a very short space of time.

4 I raise this simply, Your Honour, to notify you that it might have

5 an impact on the trial because we might be getting documents as the

6 witnesses are being called and that might mean we need some time to

7 prepare for the examination of those witnesses.

8 The other more bleak scenario, Your Honour, is if we don't get the

9 documents - hopefully we will not come to that point - but if we do not,

10 then we will have to come back to Your Honour with a request to provide an

11 order to the European Union to obtain those documents. That will be the

12 final step that we will have to take as they are relevant documents. We

13 do have some of them, but we do not have the entire collection. But let

14 us all hope that it will not be necessary to reach that point. We will

15 seek to obtain them first from the monitoring mission in Sarajevo, and if

16 that is not successful, we will then look to bring another motion,

17 unfortunately. But that in itself might have an impact on the proceedings

18 at trial because it might take some time for that matter to be resolved.

19 Thank you, Your Honour.

20 JUDGE ANTONETTI: [Interpretation] Fine. I'd like to thank you for

21 this. Consequently, you expect to hold this meeting in Sarajevo, and

22 after that you will meet the members of the EU Monitoring Mission and see

23 -- and after that, you will be able to have access to the archives of --

24 in Sarajevo.

25 I would like to remind you that the letter also refers to the

Page 220

1 protection of the interests of the European Monitoring Mission as is

2 mentioned in the Article 10 of the Rules of Procedure and Evidence.

3 I should also like to ask the Prosecution, as the Defence has come

4 up against a number of difficulties in accessing these exhibits in the

5 list of witnesses, does Prosecution feel that there is a direct -- the

6 question of these archives and the witnesses relating to these archives,

7 could we not organise things in such a way that the witnesses are called

8 when the Defence actually has access already to these archives and the

9 documents in the archives?

10 I can spell out what I have just said. As the Defence team found

11 it difficult to access these exhibits, these exhibits of course will be in

12 connection directly or indirectly with some of the witnesses that will be

13 called. Therefore, does the Prosecution envisage to call the witnesses in

14 a different order, in other words, when the Defence team actually has

15 these documents available? Is it something that you have considered?

16 MR. WITHOPF: Your Honour, there are a number of issues involved.

17 First, we cannot comment on the negotiations between the Defence team and

18 EUMM. That's out of our hands.

19 Secondly, Rule 68 material that does form part of any ECMM or EUMM

20 collection has been disclosed in the past and will be disclosed in the

21 future whenever EUMM has lifted the Rule 70 restrictions.

22 ISU has been instructed to search any EUMM document collections as

23 a number one priority. That may solve part of the problem of the Defence,

24 it certainly will not solve the whole problem, and the Prosecution has an

25 understanding of what Defence is talking about.

Page 221

1 In respect to the witnesses, the issue you are addressing, Your

2 Honour, the Prosecution has considered such a situation. There are,

3 however, a number of issues involved. Not all but a few of the ECMM

4 witnesses are fact witnesses in relation to a number of crime bases. As

5 well, not only in relation to the Article 73 related issues. We certainly

6 do not intend to call the majority of the ECMM or EUMM witnesses at the

7 very beginning of the trial. We will certainly try to assist in that

8 respect the Defence efforts to get such materials, or to enable them to

9 cross-examine the Prosecution witnesses with the relevant documents in

10 hand, however, we are certainly not in a position to say now that we are

11 focusing to have the ECMM witnesses all be called at the very end of the

12 presentation of the Prosecution case.

13 THE INTERPRETER: Interpreter's correction, line 20 should read

14 Rule 70, not Article 10.

15 JUDGE ANTONETTI: [Interpretation] Thank you very much. We shall

16 now move on to the next item, which is item 5.

17 As you know, the Rule 65 ter (H) of the Rules of Procedure and

18 Evidence --

19 MR. BOURGON: Could we perhaps address the issue of the material,

20 please, and the material stemming from the European mission of the

21 observers in the field, the EU Monitoring Mission?

22 I have noted the remarks made by the Prosecutor. We would just

23 like to make a few additional remarks. The question of the access to

24 these documents stemming from the EU Monitoring Mission is not something

25 which is pursuant to Article 68 of the Rules of Procedure and Evidence

Page 222

1 that is exculpatory material. I think it is only a question of accessing

2 the material per se, those documents which will enable the Defence to

3 prepare the case, to prepare the Defence case.

4 The second remark I would like to make, Judge Antonetti, is a

5 collection of documents which come from the EU Monitoring Mission which

6 are currently in the hands of the prosecution. The Prosecutor told us

7 that he had asked that the exculpatory material based on the documents

8 they have be handed over to us.

9 Experience has demonstrated over the last two years that some of

10 the documents we are interested in are not in the hands of the

11 Prosecution. So if we are to make -- if the Prosecution were to make or

12 conduct researches in those documents they sometimes don't pinpoint or

13 identify these documents because they just simply don't have them.

14 The example I would like to put forward in this case is the

15 example of documents which were brought to our attention by one of the

16 former ambassadors of the mission at Zenica, the regional centre of

17 Zenica, Sir Gerard, who comes from the UK. Sir Gerard brought to us --

18 provided us with a number of documents which were not handed over to us by

19 the Prosecution. We filed a request to the Prosecution with a view to

20 obtaining these documents and we also filed a request at the bureau in

21 Sarajevo, and we did get hold of these documents.

22 The problem in the current state of things is that we don't know

23 which -- which documents these are, but they have been described in detail

24 in our motion.

25 The last point I would like to make with regard to this collection

Page 223

1 is the Article 70 and the way it is applied. Article 70 of the Rules of

2 Procedure and Evidence. We feel there is a degree of confusion here.

3 Rule 70 clearly stipulates that some documents have been handed over to

4 Prosecution with regard to Article 70 -- Article 68, and this only with a

5 view to lead evidence. And these documents should not be filed.

6 The Defence team feels that the collection of documents, or all

7 the documents stemming from the EU, should be dealt with together. In

8 other words, if the Prosecutor begins or wishes to use these documents, is

9 in contact with the bureau in Sarajevo to lift the sanction on this and

10 maintain the restraining order on the 90 per cent of the collection

11 whereas there are some documents in this bundle of documents which we feel

12 would prove very useful to the Defence team.

13 So the third remark has to do with the way in which Rule 70 of the

14 Rules of Procedure and Evidence is being applied. When the Prosecutor

15 decides that it will use a part of these documents and they wish to lift

16 the ban, and we feel if it is lifted, it should be lifted on the entire

17 documents. We have already clearly indicated that we would definitely

18 comply with any protective measures which are aimed at protecting the EU

19 and EU observers, including the security of these EU members in the field.

20 Thank you.

21 JUDGE ANTONETTI: [Interpretation] As far as your submission is

22 concerned, the ban on -- mentioned in Rule 70 and also mentioned by Mr.

23 Solana, of course aimed at protecting the interests of the EU and the --

24 the -- if there is to be a lift on the ban, the EU has to agree with this,

25 and the Prosecution does not have much liberty, because they are bound by

Page 224

1 those restrictions imposed by the EU. That is the first point I would

2 like to mention.

3 As regards the second point, you are quite right. These documents

4 aren't only pursuant under Rule 70 but from a legal point of view their

5 scope is much broader than that, Rule 70. Clearly we are not talking

6 about exculpatory material. These might also have to do with exhibits

7 provided by the Prosecution.

8 As I mentioned awhile ago, we will have to wait for the outcome of

9 your negotiations, and as it is stipulated in the Rules of Procedure and

10 Evidence, you will also be entitled to file motions if necessary.

11 Let me turn to the previous item again, which is item 5. Article

12 65 ter (H). As you know, the Rules of Procedure and Evidence mention in

13 this particular Article -- mention in this particular Rule -- that when

14 there are agreed facts or facts on which the parties disagree as a matter

15 of -- of law, the Chamber can ask the parties to submit written conclusion

16 as regard the agreed facts and those facts upon which they do not agree.

17 As regards this particular issue during the working session of

18 yesterday, it was mentioned that the Prosecutor informed the Defence team

19 on the 4th of November of a 165-page document, that there would be 1.200

20 facts in total, and the Defence team would provide its response to these

21 documents within the space of two weeks.

22 I don't think that agreed facts have been mentioned or addressed

23 by the two parties as regards points of law. So I would like to turn to

24 both parties and ask them whether between today and the 28th of November

25 the Trial Chamber could be handed over the written conclusions as regard

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Page 226

1 the agreed facts and those facts which they cannot agree upon.

2 Correction, points of fact and law.

3 So would the Prosecution like to take the floor and tell the

4 Chamber what the status is here in this case.

5 MR. WITHOPF: Your Honour, that's correct. The Prosecution, day

6 before yesterday, handed over to the Defence team a long document, quite

7 correctly mentioned 165 pages, more than 1.200 facts. It's a proposed --

8 these are proposed agreements.

9 The number of facts is obviously caused by the number of crime

10 base incidents on the one hand side, and is in addition caused by the fact

11 that we have to deal with an Article 7(3) case involving a number of

12 elements relating to Article 7(3), such as notice of knowledge, failure to

13 prevent and to punish in relation to each of the crime bases. The

14 Prosecution does understand that it takes the Defence team some time to

15 respond to this proposal, and we were told yesterday the Defence will come

16 back within the next two weeks.

17 Defence may have their own proposals. Such proposals then have to

18 be discussed. It's currently the situation that it's up to the Defence to

19 react. Thank you.

20 JUDGE ANTONETTI: [Interpretation] All right. Thank you very much.

21 Does the Defence have anything to say on this point?

22 MR. BOURGON: Mr. President, in response to the remarks of the

23 Prosecution concerning agreed and non-agreed facts, we have to divide this

24 into two sets of issues, issues of fact and of points of law.

25 As far as agreed facts are concerned, we have received the

Page 227

1 Prosecution's draft or proposal, and we will give our reply within two

2 weeks, informing them which points we can agree with and which we can't.

3 We also take it upon ourselves to inform the Trial Chamber of this at the

4 Pre-Trial Conference.

5 As far as points of law are concerned, this issue is more complex.

6 Again, it is two-pronged. First of all, there are the key elements of all

7 prosecutions, all charges that form the crime base side of the indictment.

8 We pointed out in the pre-trial brief that the Prosecution did not

9 inform us of their position on each of these elements, on each of the

10 charges. And in keeping with the rule that binds us to write our

11 pre-trial brief, we did this but without taking this into account.

12 However, if the Prosecution had given us this information, then we would

13 have been able to reply to both the Prosecution and to inform the Trial

14 Chamber which points we agree and which we disagree upon.

15 And as the Prosecution observed, another prong of this matter

16 regards Article 7(3) of the Statute, command responsibility. In this

17 respect, I think that both the Prosecution and the Defence, and I believe

18 I'm also speaking on behalf of the Defence team of Mr. Kubura, both sides

19 have already informed the Trial Chamber of their position on Article 7(3)

20 of the Statute.

21 JUDGE ANTONETTI: [Interpretation] This issue really is up to the

22 opposing parties to see what they agree on what they disagree upon. There

23 are two possibilities: Either you meet by the 28th of November and see

24 what you agree and disagree upon and notify the Trial Chamber, or

25 alternatively, the Trial Chamber does not receive any document to this

Page 228

1 effect by the 28th of November, it will conclude that there is no

2 agreement between you.

3 In view of the fact that you are meeting in a few days after you

4 review this 65-page document, maybe after all you will be able to make

5 some progress under Rule 65 ter (H). However, it is still pending for the

6 Defence to review this document of 65 pages.

7 If you have no more observations to make on this topic, we can

8 move to the following item, namely as it was mentioned yesterday, it is a

9 possible submission to the Trial Chamber for disclosure by the Prosecution

10 of witness statements as evidence.

11 You know that this has already been debated in other cases. On

12 April 2003, the Appeals Chamber in the case of Blagojevic, Jokic, and

13 Nikolic ruled in such a way as to enable the Trial Chamber to receive this

14 material that was led as evidence in the trial. This decision is one that

15 it would be good for you to study, as it enables better preparation for

16 the trial and enables the Trial Chamber to familiarise itself with the

17 documents, because as you know, Rule 73 bis makes it incumbent upon the

18 Trial Chamber to establish the number of witnesses to be called by the

19 Prosecution. And if we are to establish the number of Prosecution

20 witnesses in keeping with Rule 73 bis, we have to know the relevance of

21 their evidence. This is how we would be able to approve the calling of

22 these witnesses by the Prosecution.

23 As far as the decision of the Appeals Chamber is concerned, it

24 seems to me that the Defence argued against proceeding in this way, saying

25 that there is a rule in both common law and in the civil law systems that

Page 229

1 evidence may be given only in the presence of all parties concerned and

2 that the Trial Chamber may not know the evidence in advance, before the

3 witnesses are called, which would jeopardise the rights of the Defence.

4 I hope that I have summarised the position of the Defence

5 correctly. No doubt the Defence will give us their principled stance in a

6 few moments on this issue, but in any case, the issue at hand concerns

7 receiving the documents which are already in possession of the Trial

8 Chamber.

9 Do you have a response?

10 MS. RESIDOVIC: [Interpretation] Yes, Your Honour. The Defence is

11 well aware that practice has changed over the existence of this Tribunal.

12 At the outset, Trial Chambers did not used to have any prior information

13 on the witnesses that were to appear before them, and it frequently

14 happened that Trial Chambers were not in a position to exercise, to

15 discharge their duties.

16 I come from a legal system in which a Trial Chamber has full

17 information on all evidence in the cases they are trying. We are in a

18 position where the Trial Chamber has information on all statements of all

19 witnesses that could be accepted as evidence in the case, but all this

20 originates from only one side, one party to the trial. We believe that

21 this is extreme and exclusive. But we also believe that the Trial

22 Chamber, in order to have proper information and to properly discharge its

23 duties during trial should have information about the statements of

24 witnesses who would be called. But it is our position that evidence is

25 only testimony that has been recorded on transcript and has been given in

Page 230

1 court. Depositions taken in whichever way, or statements taken outside

2 the courtroom in whichever way, with the exception of 92 bis statements,

3 could not be evidence, in our view.

4 We therefore believe that in keeping with the obligation of the

5 Prosecution, to provide both the Trial Chamber and the Defence teams a

6 draft list of all the witnesses to be called within the following three

7 weeks. The Prosecution should also provide their statements to the Trial

8 Chamber so that the Trial Chamber should have all the information that is

9 in possession of both parties before a witness comes into the courtroom.

10 As for your observation that this should be done before the

11 Pre-Trial Conference, we have not harmonised our views yet, but it is my

12 opinion that in the pre-trial proceedings, the Trial Chamber has enough

13 elements enabling it to make a highly professional and high quality

14 decision on whether all the witnesses proposed by the Prosecution really

15 need to be called.

16 So as we said yesterday at the 65 ter meeting, we believe that the

17 Trial Chamber should have access to witness statements for information

18 purposes within a time frame of, let's say, three weeks before their

19 appearance in court. We have, on our part, argued that the Trial Chamber

20 should have access to information and evidence the Prosecution will lead

21 during the trial. Thank you.

22 JUDGE ANTONETTI: [Interpretation] If I understood the Defence

23 correctly, you did argue that the Trial Chamber should be familiar with

24 the contents of testimony, witness testimony, with the proviso that it may

25 be available only three weeks before their appearance, and we are of

Page 231

1 course waiting for the Prosecution to finalise their lists, which hasn't

2 been done yet. And in that case, I understand the Defence would accept

3 the decision of the Trial Chamber to that effect.

4 I hope I have summarised the position of the Defence accurately.

5 Prosecutor, as far as disclosure is concerned, would you have any

6 remarks to make?

7 MR. WITHOPF: Disclosure of the witness statements, I understand

8 you are referring to. The Prosecution is fully understanding the concept

9 Your Honour has summarised a few minutes ago.

10 Disclosure of the witness statements, the full statements to the

11 Trial Chamber prior to the commencement of the trial will first enable the

12 Trial Chamber, the Bench of Judges, to exercise its powers under Rule 73

13 bis in the course of a Pre-Trial Conference. In addition, it will enable

14 the Bench to exercise its duties in examining the witnesses.

15 It's the clear understanding of the Prosecution, however, that the

16 evidence is the oral testimony only. The Prosecution is prepared to

17 submit the full statements to the Trial Chamber as the Trial Chamber may

18 decide and may wish. There are quite a number of Rule 92 bis statements

19 that is also to mention in addition.

20 JUDGE ANTONETTI: [Interpretation] All right. I have taken note of

21 the remarks, the statements of both parties on this issue.

22 I would now like to move on to the next item unless -- Mr. Dixon,

23 yes?

24 MR. DIXON: Your Honour, I apologise for interrupting. There is

25 just one point arising from what the Prosecution indicated and that is, in

Page 232

1 our view, there would be no need to have all the statements before the

2 commencement of the trial for the Pre-Trial Conference because there are

3 summaries of the witness statements in the Prosecution pre-trial brief

4 which could be used for estimating the number of witnesses and the length

5 of the trial and that we would agree rather with Your Honour's point of

6 view which is that the statements could be made available three weeks

7 before the witness is to testify with the summaries being used at the

8 Pre-Trial Conference.

9 I'm grateful, Your Honour.

10 JUDGE ANTONETTI: [Interpretation] Very well. Thank you, Mr.

11 Dixon, for your remarks.

12 We are now moving to item 7, which as you know, regards the

13 preparation for the Pre-Trial Conference. As you know and as I have

14 indicated, it is scheduled for the 28th of November.

15 With Pre-Trial Conferences, there is a certain number of issues

16 that it is preferable to tackle in advance. The Prosecution provided the

17 Defence with a list of 134 witnesses, and I'm saying this from memory. At

18 this stage, we do not know yet the order in which these witnesses will

19 appear, and anyway, is Prosecution still maintaining this number of 134 or

20 should we add to this the number of 12 or 13 that were referred to a

21 moment ago?

22 Similarly, we do not know yet the minimal time that will be

23 required for the hearing of these 50-something witnesses.

24 Concerning witnesses, regarding 92 bis witnesses and the

25 possibility of hearing witnesses under Rule 89(F). As you know, we have

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Page 234

1 recently received a decision regarding 92 bis and 89(F) witnesses. It

2 transpires from this decision that certain witnesses under Rule 89(F)

3 could appear before the Trial Chamber on the condition that he is examined

4 in chief also by the Judges, that a counsel is present in the courtroom

5 while they testify, and that the statement reflects accurately the

6 contents of their evidence.

7 The procedure of Rule 89(F) has the advantage of allowing for a

8 considerable saving of time, because in that case we would not have to go

9 through with examination-in-chief and would instead only proceed with

10 cross-examination. I just have to warn the parties that there is the

11 possibility of hearing certain witnesses under Rule 89(F). I will

12 presently give the floor to both parties, the Prosecution and the Defence,

13 the Prosecution first.

14 As regards the order of witnesses for the Prosecution, could you

15 at this stage give us some clarification as to how you are planning it or

16 do you have nothing to say for the moment, in which case we will consider

17 my question premature.

18 MR. WITHOPF: Your Honour, in respect to the number of witnesses,

19 it's correct, there are currently 135 witnesses on the Prosecution's

20 witness list. There is a high potential that a few additional ones will

21 be added in very near future.

22 In respect to the order the Prosecution intends to call these

23 witnesses, as already mentioned today, the Prosecution intends to comment

24 to present its evidence with the murders in Dusina, with the murders in

25 Miletici as number 2, and the murders in Maline and Bikosi as number 3.

Page 235

1 These incidents are the three killing incidents that do form part of the

2 indictment, and they are quite important incidents.

3 In relation to Rule 92 bis and 89(F), as you're certainly aware,

4 the Prosecution has got in the past 13, 1-3, witness statements under Rule

5 92 bis, all crime base witnesses. The statements have been disclosed to

6 the Defence. The translations will be disclosed today.

7 The Prosecution applied for a further Rule 92 bis mission between

8 the 21st and the 23rd of November. We will hopefully get the declarations

9 in respect to additional 15 witnesses, again crime base witnesses. The

10 names of such witnesses have been provided to the Defence yesterday in

11 order to enable them to decide on their position early on.

12 There will be a further Rule 92 bis mission immediately after this

13 one. This would involve between six and eight additional witnesses,

14 meaning the Prosecution, hopefully by the commencement of the trial, will

15 have some 35 to 40 Rule 92 bis witnesses.

16 The issue of Rule 89(F), there are certainly a number of

17 advantages to use Rule 89(F). However, there are also a number of

18 disadvantages.

19 In respect to 92 bis, what the Prosecution is currently

20 preferring, as you certainly are aware of, as is the Defence team, there

21 is the Galic Appeals Chamber decision, and the Galic Appeals Chamber

22 decision is a bit restrictive in using the Rule 92 bis procedure in

23 Article 7(3) cases. I will provide you with an example.

24 We have a number of witnesses who identified the troops committing

25 the crime by their shoulder badges. This is obviously an issue related to

Page 236

1 the superior/subordinate relationship between the accused and the direct

2 perpetrator and as such is an element of Article 7(3). The question,

3 however, in terms of Rule 92 bis is as to whether this is related to the

4 acts and the conduct of the accused. What is the criminal act and conduct

5 of an accused in an Article 7(3) case? It's the failure to prevent and

6 it's the failure to punish. The criminal acts and conduct are the

7 admissions, meaning that any statement of a witness in relation to

8 subordination would fall within the scope of Rule 92 bis.

9 This is an area, Your Honour, we are actually seeking some sort of

10 guidance of the Trial Chamber as soon as possible in order to enable us to

11 make a final decision on the additional use of Rule 92 bis witness

12 statements. Thank you.

13 JUDGE ANTONETTI: [Interpretation] And as regards the time limit,

14 you are not in a position to give us any indication as regards the time

15 you will be needing to call and hear your witnesses?

16 MR. WITHOPF: I understand you are referring to the duration of

17 the presentation of the Prosecutor's case. This is a very hard question

18 to answer, Your Honour. It obviously depends on the result of the

19 negotiations of the parties in respect to potential admissions. It also

20 depends on the issue of the use of Rule 92 bis witnesses and the position

21 Defence will take in respect to the issue whether they wish to call them

22 for cross-examination or not.

23 As already indicated in our submission, once we filed the

24 pre-trial brief, we think that the presentation of the Prosecution's case

25 will not last longer than six months.

Page 237

1 JUDGE ANTONETTI: [Interpretation] Thank you. As far as the

2 various items that have been mentioned are concerned, I would like to know

3 what the point of view of the Defence team is. Article 92 bis witnesses

4 and 89(F) witnesses. The Prosecution believes that the time for the

5 examination-in-chief will be approximately six months.

6 Who would like to take the floor?

7 MS. RESIDOVIC: [Interpretation] Your Honours, as you know, on this

8 issue, we agree completely with the Prosecution. It all depends on

9 certain things we discussed earlier, namely, the list of witnesses that

10 the Prosecution currently intends to call under Rule 92 bis were received

11 only yesterday. The Prosecution is announcing new candidates for 92 bis,

12 and it is of course premature for the Defence to give its final position

13 today.

14 On the other hand, as regards Rule 89(F), the Prosecution is

15 taking a restrictive approach, and we also lack jurisprudence from other

16 cases before this Tribunal, and we would therefore like to leave this

17 issue outstanding until the Pre-Trial Conference.

18 As for the potential duration of the trial, we talked in the

19 presence of the senior legal officer, the registrar, and the

20 representative of the Chamber about previous cases and the duration of the

21 presentation of evidence in various cases, and we will try to maximise the

22 number of stipulations. We also hope that we will have to -- that we will

23 be able to accept the greatest number of 92 bis witnesses, especially if

24 they are crime base witnesses.

25 We presented our view that including holidays and the days needed

Page 238

1 by the Trial Chamber to respond to our motions and similar needs, we

2 believe that the Prosecution case could and should not be shorter than ten

3 months. That precise figure we quoted was 11.8 months in view of the fact

4 that we are all prepared to invest maximum efforts to minimise the

5 duration of the trial. There is no need to avoid reiterating our position

6 again today, and that is that the Prosecution case will be longer than ten

7 months.

8 JUDGE ANTONETTI: [Interpretation] Fine. As regards counsel of

9 Mr. Kubura, would you like to take the floor.

10 MR. IBRISIMOVIC: [Interpretation] Your Honours, just one brief

11 point. In his pre-trial brief, the Prosecutor asked for six months, and

12 we have learnt today that there will be new witnesses, and it is rather

13 unrealistic to stick to this six-month period.

14 MR. RE: Your Honour.

15 JUDGE ANTONETTI: [Interpretation] Mr. Prosecutor, you would like

16 to take the floor?

17 MR. RE: Thank you, Your Honour. Just -- there are two issues or

18 one which I would address in relation to Rule 89(F). The Prosecutors --

19 although Mr. Withopf said before there are advantages, the Prosecution's

20 preference is to utilise Rule 92 bis rather than Rule 89(F), and it is for

21 this practical reason: The Rule 92 bis declaration stage involves or

22 takes resources from the Prosecution. We have to send a lawyer and

23 investigator to Bosnia or Croatia, wherever the witnesses are, to retake

24 what were essentially investigatory statements which were taken some years

25 ago and reformulate them into a form which is admissible in the court.

Page 239

1 The difficulty is, if Your Honour appreciates that the

2 investigation of this matter took place some years ago, and the things

3 that the investigators were looking at are not necessarily those in the

4 indictments, so all of the statements we provided to the Defence over the

5 years contain a lot of extraneous material. So if we are to utilise

6 89(F), we are in effect utilising 92 bis, because we would be retaking the

7 statements anyway to present them to the Court, to allow them to be

8 tendered and for the witness to in effect make the declaration in court as

9 to the veracity of the statement as opposed to in the field before a

10 presiding officer. That is why the Prosecution of course is completely

11 open to 89(F) but prefers 92 bis because it means that the witnesses don't

12 actually have to come to court depending upon the Defence's attitude to

13 cross-examination.

14 That leads me to the second point, the point Mr. Ibrisimovic

15 raised about the length of the trial. We will be speaking to some more

16 people next week, but this very much depends upon the attitude of the

17 Defence to the 1.200 facts we've asked them to look at. In our

18 preliminary discussions with the Defence, they are not contesting many of

19 the facts in the crime base, such as deaths or perhaps mistreatment in

20 particular detention centres. The issue at trial will be notice to the

21 accused and what they did or didn't do. So in that sense, the Prosecution

22 is quite confident at the moment that if the Defence looks at each of the

23 facts which we've presented as to the deaths, the mode of -- and the way

24 people -- and what happened, that we will come up to something. We may

25 even be able to reduce it to below six months.

Page 240

1 MS. RESIDOVIC: [Interpretation] Your Honour, may I?

2 JUDGE ANTONETTI: [Interpretation] You have the floor.

3 MS. RESIDOVIC: [Interpretation] In response to the last remark of

4 my learned friend, I wish to say the Defence is trying to present its

5 genuine and realistic stances to the Trial Chamber. As we saw from the

6 witness list, the Prosecution intends to call a lot of international

7 witnesses. For the majority of them, he envisaged one and a half hour of

8 examination in his pre-trial brief, and in the practice of this Tribunal,

9 international witnesses are usually heard for two or three days. We

10 believe that this is not a good position on the part of the Prosecution

11 because it is not realistic. On the other hand, there are certain

12 witnesses that the Prosecution intends to examine for only half an hour.

13 We believe this too is unrealistic, because taking into account only the

14 time that it takes to bring, usher the witness into the courtroom, to ask

15 his name, to give him the declaration, et cetera, that alone takes some

16 minutes.

17 I think all this needs to be taken into account when planning

18 time. We, on our part, will do everything we can to contribute to

19 minimising the time, but we also have our obligations, and we will

20 cross-examine witnesses to the extent that it contributes to defending the

21 interests of the defendants. Thank you.

22 JUDGE ANTONETTI: [Interpretation] Fine. Thank you. I draw the

23 conclusion, therefore, the 92 bis statement witnesses issue will only be

24 solved once you have exchanged your views on this particular point.

25 I would like to ask the Prosecution to file a motion once its list

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Page 242

1 is ready so that we can have the list of these 92 bis witnesses pursuant

2 to Article 92 bis -- to Rule 92 bis. I am sure that you will do this with

3 a cooperative spirit and so that we can conduct this trial in the most

4 expeditious way possible given that, for the time being, the Prosecution

5 holds that it will take six months to hear their witnesses, which is

6 questioned by the Defence team who would tend to multiply this by two. So

7 if we take a mean average, this might be something like eight to nine

8 months. So we will see where we stand when the time comes and when we

9 start the examination of these witnesses.

10 Let me now address the next item, which refers to the return of

11 the accused to the detention centre, which as you know a date has been set

12 for this, and the two accused will, I hope, return in the custody of the

13 detention centre at the date which has been set.

14 Item 9 refers to translation issues. We have a whole series of

15 issues to be addressed here, as we will have to be using several

16 languages; English, French, and B/C/S. We have interpreters who can do

17 this job, but the question remains as regards the translation of the

18 documents which are either in B/C/S or in English. We -- this question

19 was mentioned by the senior legal officer yesterday, and I would like to

20 know what those parties feel about this, possible difficulties which may

21 arise as a result of these translations. And as of the 2nd of December,

22 the Trial Chamber will be a French-speaking Chamber, and if any motions

23 are to be filed, and if the Defence team would be in a position to write

24 its motions in French, we would, of course, be able to gain time thereby.

25 And if the Prosecution would also bear in mind the fact that we will be in

Page 243

1 a French-speaking Chamber, that they submit their documents in French,

2 this will also be a way of gaining time. Of course if this is rendered

3 impossible, we will work in English together with interpreters.

4 So as far as the translation issues are concerned, does the

5 Defence team wish to say anything concerning the difficulties that may

6 arise as relating to these matters?

7 THE INTERPRETER: Microphone, please.

8 MR. BOURGON: [Interpretation] The Defence does have comments to

9 make as regards the issue of translation. It is a rather tricky point.

10 We have already discussed this. The representatives of the Office of the

11 Prosecution and the senior legal officer that has been appointed to

12 Chamber II as well as the Defence team.

13 What we would like to do today is to try to explain to you the

14 issue of translations as it applies here at the ICTY. I would like to

15 quote my sources to explain how the issue is being understood.

16 According to Rule 28, we here put forward the rights of the

17 accused. The subparagraphs refer to the question of translations. I

18 would respectfully submit that article (A) mentions that the accused is

19 entitled to be informed about the details of the case in a detailed way in

20 a language that he or she understands. Article (B) mentions that the

21 accused is entitled to have things facilitated for him during the

22 preparation of his or her trial.

23 More importantly, the policy of the ICTY here comes into play.

24 The ICTY was created now some ten years ago, and we come to realise that

25 no language policy or translation policy has been established by the ICTY

Page 244

1 as regards the documents to be used in court and that would be used to

2 prepare the case.

3 The third source I would like to quote pertains to the obligations

4 of the co-counsel before the ICTY, and I here would like to refer to the

5 directive on the appointment of the counsel of the Defence, which is a

6 document provided by the Registry of the Tribunal, as well as what is

7 commonly the practice in this Tribunal. These are documents which I shall

8 refer to in the course of the explanation I'm about to provide you with.

9 First of all, I should like, Presiding Judge, to draw your

10 attention on the following: The resources provided to the Defence team

11 are as follows: We have the translation department of the Tribunal per

12 se, more commonly known under the acronym of CLSS. Secondly, we -- an

13 interpreter has been made available to the accused, the General

14 Hadzihasanovic, 75 hours per month on the basis of 17 [as interpreted]

15 hours per month. So these are the resources which have been made

16 available to us to date.

17 Following a recent meeting with the senior legal officer and

18 members of the Office of the Prosecutor, we have been informed that the

19 translation department of the Tribunal should only be called upon for

20 those documents which will be filed, i.e., in the form of documents

21 tendered in this case. So what I would like to bring to your attention is

22 the fact that there are five categories of documents when preparing a case

23 before this Tribunal. Let me spell this out briefly.

24 It is important to have these documents' translation. The five

25 categories are as follows: A, those exhibits which will be tendered by

Page 245

1 the Prosecution; B, those exhibits which will be filed and tendered by the

2 Defence team, or if you like documents which will be used during the

3 cross-examination phase; C, those documents which are handed over to the

4 Prosecution pursuant to Rule 68 of the Rules of Procedure and Evidence; D,

5 those exhibits which are needed to prepare the Defence case for the

6 accused; and E, the last category, those documents which we find in the

7 course of the investigation of the Defence team.

8 I would like to review these five categories and tell you what the

9 position of the Defence team is, and as regards to the necessity of having

10 these documents translated. Some exhibits will be filed by the

11 Prosecution during the Prosecution case. These will be submitted to the

12 Defence together with the pre-trial brief before the beginning of the

13 trial. In any normal situation, no other documents will be used by the

14 Prosecution during the presentation of its case.

15 When we refer to Rule 21 of the Statute, the accused should be

16 informed about the contents of these exhibits and these exhibits must be

17 translated in one of the official languages of the Tribunal. As regards

18 this particular point or this category of documents, a very clear question

19 arises. Some exhibits have been submitted to the Defence by the

20 Prosecution, and these exhibits are in Arabic. For instance, there is a

21 video which was submitted to the Defence as an exhibit which might be

22 tendered by the Prosecution during the presentation of its case. It's a

23 video -- it's a 20-minute video. The video is in Arabic. We think that

24 this exhibit should be translated before the beginning of the trial in

25 either one of the two official languages of the Tribunal, English or

Page 246

1 French, and in the language of the accused so we can use this exhibit.

2 When we dealt with this issue together with the Prosecution, we

3 were told that this exhibit might be tendered and if in the event of the

4 admission of this exhibit, they would then provide us with a translation

5 of the portion of the video which they intend to mention, and we thought

6 this -- it was thought, therefore, that this was enough to protect the

7 rights of the accused, but the accused should be able to understand the

8 video in a language he understands and should be used in the courtroom.

9 So this is something very specific.

10 As regards the second category of documents, we -- the documents

11 that will be used by the Defence team in the Defence case. Let me give

12 you an example, Judge Antonetti. Witness A is called and is being

13 examined and cross-examined, and he is provided with ten documents in the

14 course of his testimony. Those ten documents belong to the first category

15 I've just mentioned. But when it is the turn of the Defence team to

16 conduct its cross-examination, the Defence team will be using documents

17 which the Prosecution does not have and which the Trial Chamber does not

18 have either. We will have filed these documents prior to the hearing so

19 that all parties can have the -- this material in their -- at hand.

20 So we respectfully submit that these documents must be translated

21 in one of the official languages of the Tribunal, and these documents can

22 be used, therefore, during the cross-examination phase.

23 This -- I just mentioned the second category of documents. The

24 third category of documents, which is a little bit more difficult pursuant

25 to Rule 68 of the Rules of Procedure and Evidence. These are exhibits

Page 247

1 handed over to the Defence before the beginning of the trial. If the

2 Prosecution were to find new exhibits, these would also be disclosed to

3 the Defence. But generally speaking, all these exhibits and the greater

4 part of these exhibits would be disclosed to the Defence before the

5 beginning of the trial. We are here talking about exculpatory material.

6 We are talking pursuant to Article 68 exhibits which could demonstrate the

7 innocence of the accused or contribute to the minimisation of the

8 accused's guilt.

9 As things go, these exhibits are submitted to the Defence in the

10 language in which these documents were originally found. Most of these

11 documents are in the language of the accused. In this particular case,

12 these are in the Bosnian language. We are talking about thousands of

13 documents in this case. So we think that it goes without saying that in

14 order to prepare the Defence case, we should make sure that the accused

15 should either -- the accused or his or her counsel should be able to read

16 these documents. And we have been told so far that the translation

17 department of the Tribunal cannot be called upon to translate all these

18 documents. So we found ourselves with tens of thousands of documents in a

19 language -- in the Bosnian language, and we will have to work with these

20 documents. And this is where this -- what I mentioned at the beginning of

21 my speech, that what comes into play now, the role of the co-counsels of

22 the Tribunal.

23 When we talk about the obligations of the co-counsel, we need to

24 refer to two things: A, the directive of the assignment of counsel which

25 stipulates that the co-counsel is there to prepare the entirety of the

Page 248

1 case as if he were to take part in all the phases of the trial; and B,

2 what is commonly practised -- common practice in this Tribunal, the Judges

3 in other cases have ruled that the co-counsel should be in a position in

4 the event that the lead counsel can no longer fulfil his or her

5 obligations for any length of the time, the co-counsel should be able to

6 replace him at very short notice.

7 So we believe that if a co-counsel should be able to replace the

8 lead counsel at very short notice, he should be able to read the documents

9 that are part of the case.

10 As things stand, the resources we have are 75 hours a month, one

11 person only, which means that we cannot use these documents, and we cannot

12 even translate the gist of these documents in order to prepare the Defence

13 case.

14 I would now like to talk about this fourth category of documents.

15 These are documents which we need to prepare the Defence case. So how do

16 we establish this distinction between the third and the fourth category?

17 In the third category we are talking about documents which are submitted

18 to us by the Prosecution, and these documents can be exculpatory material,

19 but there are also those documents which we shall find in the course of

20 our investigations. And this -- I should like to make this observation:

21 It's rather strange for a Canadian to say that we have no Magistrate

22 Judge. I am used -- I am a lawyer in a common law system, but as regards

23 the cases here in front of an International Tribunal, maybe it would be a

24 good idea to have a legal system that would be closer to the examining

25 Judge.

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12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 250

1 In the current state of things, the Prosecution conducts its own

2 investigation. The findings of these investigations make up a collection

3 of documents which account for several tens of thousands of pages. These

4 documents, the precedent should be used to enable us to prepare our case.

5 I would like to give you an example here. Witness A will -- will be

6 examined, and during the examination-in-chief, the Prosecutor will submit

7 a report that was drafted on the 15th of that particular month. The

8 witness is a witness that has drafted all those reports during that same

9 month, but the Prosecution only submits a report that was drafted on the

10 15th because this one relates to the evidence of the Prosecution.

11 There's -- assuming that I on the Defence team would like to

12 cross-examine the witness as regards this report drafted on the 15th but

13 also on the 16th of that same month. I cannot prepare my

14 cross-examination if the report drafted on the 14th and the 16th have not

15 been translated, are not in a language which I can read, understand. So

16 we have been told that as the lead counsel in this case speaks the Bosnian

17 language and as I speak English, therefore we could share out the work,

18 but clearly, Mr. President, when I'm going to be preparing and proofing a

19 witness, I can't always be working together with the lead counsel. When

20 the lead counsel will be proofing witnesses, I will be at the same time

21 preparing other witnesses. So I will be needing those documents in a

22 language which I can understand, and today I cannot say whether the

23 documents I will be needing to prepare the cross-examination will be filed

24 as an exhibit or not.

25 I know that I will need the reports that have been prepared by

Page 251

1 this particular witness in a language that I understand so that I can then

2 choose those documents which I will present during my cross-examination.

3 So we are being told there are limited resources for the translation of

4 these documents. Unless I can clearly confirm that I'm going to be filing

5 these documents, I cannot have it translated, which is a shortcoming, I

6 think, I believe, for this International Criminal Tribunal. This means I

7 will have to be working on an ongoing basis with the lead counsel and the

8 resources in this matter are insufficient.

9 The last point I would like to mention are those documents which

10 stem from the investigation, which generally speaking are in English and

11 which the accused needs to read. Let me give you just one example. Those

12 documents that stem that the United Nations archives in Geneva. Those

13 archives are the protection of United Nations missions in Bosnia. We have

14 been entitled to access these archives in Geneva, we have selected our

15 documents on the basis of 200.000 documents. We have chosen approximately

16 1.500 documents from this collection. All these documents are in English.

17 So I can work with these documents, but the accused has to understand

18 what these documents contain and which only accounts for a small

19 percentage of all the documents available in these archives. Seventy-five

20 hours a month which has been allotted to us by the Registrar of the

21 Tribunal is not enough if we want to be well prepared.

22 So to conclude, we do not wish to stipulate that the translation

23 issue would be a reason to postpone the trial. That is not what we wish

24 to convey. We would like to draw your attention to the fact that a policy

25 has to be established by the International Criminal Tribunal, and in this

Page 252

1 particular case we would need to have additional resources in the

2 short-term in order to catch up with what we have been unable to do in the

3 past.

4 When we met with the senior legal officer and members of the

5 Office of the Prosecutor, we were told that we asked for more translations

6 to be made than other Defence teams, and there is no reason why we should

7 here make an exception to the rule. So we conducted a little inquiry, and

8 we asked other Defence lawyers, and we asked whether our position was

9 different, and our colleagues have told us that in the other cases, the

10 requests we make are very similar to requests made in other cases. For

11 instance, Plavsic. In the Plavsic case, a team of translators has been

12 set up, a team of translators in the field. At that time, this was in the

13 former Republic of Yugoslavia, now it's Serbia and Montenegro. We set up

14 a team, and this was not a very costly operation in order to prepare the

15 case.

16 In other case, the Brdjanin case, former Brdjanin and Talic, we

17 discussed this with the counsel in this case. He told us that the number

18 of documents to be translated was never restricted. He just asked to have

19 the documents translated and they were always translated.

20 So we are unable to do this if we address ourselves to the

21 translation department today. It is important to understand that we

22 brought this to the attention of the Registry more than 18 months ago.

23 Thank you, Judge Antonetti. We brought this to the attention of

24 the Registry more than 18 months ago, and we explained to the Registrar

25 that we have 500.000 pages to -- which we found not very workable and that

Page 253

1 we lacked resources. We suggested to the Registry a budget. We

2 stipulated what a small -- what kind of small budget was required for us

3 to appropriately prepare our case before this Tribunal. We were denied

4 these resources and this did not allay our fears. We felt that as the

5 trial was nearing the time when it would be opened, we have a problem, and

6 we feel that it is necessary that these documents be translated.

7 We don't feel that we are jeopardising the beginning of the trial,

8 which is to start on the 2nd of December. Nevertheless, we do need to

9 have additional resources so that we can face up to the situation.

10 At our last meeting with the Prosecution and the senior legal

11 officer, a discussion was made as follows: We were told that we could

12 perhaps be provided with a translator for a period of three months on a --

13 on a full-time basis, and I think this is very important. I think it is

14 important that this issue be settled so that we avoid it being becoming an

15 issue that can be raised as regards the right of the accused for a fair

16 trial, even if it is -- particularly as it is going to be lasting every

17 bit of six months. So I think there is a way of finding a solution which

18 I believe should not be too costly, and so that the Defence team can

19 prepare its case properly before the International Criminal Tribunal and

20 to avoid any legal issue being raised by the mere fact that some documents

21 can't be translated.

22 JUDGE ANTONETTI: [No Interpretation]

23 THE INTERPRETER: Microphone, please.

24 --- Recess taken at 4.58 p.m.

25 --- On resuming at 5.05 p.m.

Page 254

1 JUDGE ANTONETTI: [Interpretation] So the Defence has shed light on

2 problems of translation. It said that they are facing five categories of

3 documentation documents provided by the Prosecution, documents that will

4 also be used by the Defence, and all these categories of documents imply

5 the need for translation on the part of Defence and that they have

6 insufficient resources for this.

7 This is a well-known problem in the Tribunal, because this has

8 always been brought to the notice of the Trial Chamber. And what the

9 Trial Chamber can say at this moment is that in order for the Defence to

10 be the best possible, all the documents need to be translated. But this

11 is an absolutely phenomenal volume of documentation, because when we have

12 millions of pages to be translated, it is clear that account has also to

13 be taken of budgetary restrictions. The Registry also has limited

14 resources and can set aside for translation only so much.

15 For the time being, we can consult with the Registry about the

16 issue of 75 hours per week [as interpreted] of language assistance

17 currently available and whether that can be increased, but I must add that

18 the Trial Chamber does not decide on the amount of resources, income and

19 revenues. We can only take note of your observations and convey to the

20 Registry, and it is up to the Registry to decide whether they can increase

21 your resources.

22 As for the video in Arabic, I think we will hear from the

23 Prosecution on various items that have been referred to in light of the

24 Prosecution's obligation to facilitate the work of the Defence, at least

25 regarding the documents that need to be translated into the language of

Page 255

1 the accused, in this case B/C/S, and certain documents that also need to

2 be translated into English and possibly French.

3 I'm giving the floor now to the Prosecution.

4 MR. WITHOPF: Your Honour, I will try to, as short and concise as

5 possible, to address the translation issues involved.

6 There's the first issue of the translation of exhibits into French

7 of the Prosecution exhibits. We have been asked in yesterday's Rule 65

8 ter conference to identify the sequence of exhibits, the sequence of the

9 documents and as to how we wish to use them in trial. We are certainly in

10 a position to, in a short-term to some extent, as the pre-trial brief as

11 the basis to identify such documents. We anticipate that this issue will

12 not become a major issue in the course of the trial.

13 I wish to use this opportunity to make a comment to a proposal, a

14 suggestion made by you, Your Honour, that Defence may file its briefs in

15 French language. Appreciating that this will be a French-speaking Bench,

16 the Prosecution, however, suggests that Defence continues to file its

17 filings in English. As Your Honour certainly is aware of, the Prosecution

18 team is an English-speaking team and does, unfortunately, not have the

19 advantage to understand and to speak French to the extent necessary to be

20 of use in trial. It would also save time. It will save the parties time,

21 and it would save the Bench's time for the only reason that in the event

22 that the Defence has to file or will file its motions in French, such

23 filings would have to be translated into English or take some time and

24 only afterwards the Prosecution will be in a position to respond in

25 English.

Page 256

1 The second issue is the issue of Rule 68 documents. Under Rule

2 68, the Prosecution is not obliged -- obviously not obliged to provide

3 Defence with such documents in the language of the accused. We have

4 agreed that based on a list that Defence provided us with that we check

5 whether translations are available, in this case translations into

6 English. We're talking about 84 documents. We reviewed our translations,

7 summary translations or full translations of 23 such documents. Where

8 available, they are available and the documents have been handed over, the

9 translations of such documents have been handed over to the Defence.

10 Other translations are not available.

11 In respect to the translation of Defence documents, the

12 Prosecution acknowledges that there is a challenge for the Defence. The

13 Prosecution has always assisted the Defence far beyond its obligation

14 under the Rules in order to get their case prepared. The Prosecution for

15 the Defence, a certain section within the Prosecution of the Defence has

16 checked to what extent the documents the Defence team wishes to have

17 translated into English are already translated by the Prosecution. A

18 review has revealed that only 5 per cent of the Defence documents are

19 available in English translation. By the way, such translations are

20 actually available and can be handed over at the earliest opportunity,

21 probably tomorrow morning.

22 There is, however, the situation that Defence is facing a

23 challenge all other Defence teams have faced in the past in other

24 proceedings. The other Defence teams have overcome the challenges, and

25 the Prosecution can't see any reason why it should be different in this

Page 257

1 particular case.

2 In respect to the issue as to whether the Prosecution would be

3 able to provide the Defence team with additional staff for translations,

4 there is a policy decision by the Prosecutor that the Prosecution will not

5 do so.

6 The very last issue I wish to address is the videotape containing

7 portions in Arabic language. The Prosecution is prepared to translate

8 such portions into English.

9 Thank you very much.

10 JUDGE ANTONETTI: [Interpretation] All right. I thank you very

11 much. So it follows that from the point of view we just heard, that

12 translation is a genuine, real problem, but it is a standing problem, and

13 practical solutions are to be sought by both parties at this stage. I

14 note that both parties are ready and willing to make every effort to have

15 these proceedings take place in the best possible conditions. And when

16 translation problems arise, it will be up to the Trial Chamber to respond

17 to them as they see fit. And as far as B/C/S documents are concerned, in

18 future proceedings we have the possibility of using interpreters to do a

19 vista translations if these documents are produced by either party during

20 examination-in-chief or cross-examination, thanks to the technical

21 facilities we have, these documents could be translated a vista during the

22 hearing.

23 And as I indicated a moment ago, we are going to take it up with

24 the Registry to see to what extent it is possible to add to the resources

25 of the Defence by increasing the hours of the currently available

Page 258

1 interpreter from 75 upwards. That would enable the Defence to have -- to

2 receive appropriate answers to their requests.

3 And I'm now coming to item -- that was item 9, translation

4 problems.

5 Item 10. Are there other questions that either party would like

6 to raise? If that is the case, would the Defence like to say anything?

7 MS. RESIDOVIC: [Interpretation] Your Honours, before the beginning

8 of today's conference, I informed the Prosecution that today on a web page

9 containing daily newspapers from Bosnia and Herzegovina, we read a report

10 that SFOR soldiers searched the Cantonal Court and the Prosecutor's office

11 in Zenica and removed certain materials. Since this is the Cantonal Court

12 and the Prosecutor's office which are concerned in our case as well and

13 they have been designated as important institutions in the Prosecutor's

14 pre-trial brief, I have asked the Prosecutor to notify today in your

15 presence whether this entry of SFOR into the Cantonal Court in Zenica has

16 anything to do with our case.

17 JUDGE ANTONETTI: [Interpretation] On this matter, does Prosecution

18 wish to respond? The floor is yours.

19 MR. WITHOPF: Your Honour, I'm prepared to repeat what we already

20 informed the Defence counsel about. This information was as surprising

21 for us as it has been for the Defence. It has certainly not been this

22 particular Prosecution team that has initiated this. This particular

23 Prosecution team is not aware of the SFOR operation that took place today.

24 JUDGE ANTONETTI: [Interpretation] Very well. The Prosecution has

25 responded to the question you raised.

Page 259

1 MS. RESIDOVIC: [Interpretation] Thank you very much. We are

2 satisfied with the answer. An answer to the contrary would have called

3 for a certain reaction on the part of the Defence. Thank you.

4 JUDGE ANTONETTI: [Interpretation] Very well. As all the items of

5 the agenda have been covered, I want to conclude by saying that we shall

6 meet again on the 28th November, I believe at 9.00, for the Pre-Trial

7 Conference under our Rule 113 bis of the Rules of Procedure and Evidence.

8 In the meantime, I understood, having heard that motions have been

9 filed to the Trial Chamber and the Trial Chamber will do its best to reply

10 in the shortest possible time.

11 Thank you for the spirit of cooperation you have displayed during

12 this Status Conference, and I thank the interpreters and promise them that

13 next time they will have the normal 15 break.

14 This session is adjourned. Thank you.

15 --- Whereupon the Status Conference adjourned

16 at 5.22 p.m.