Tribunal Criminal Tribunal for the Former Yugoslavia

Page 234

1 Monday, 24 January 2005

2 [Pre-Trial Conference]

3 [Open session]

4 [The accused entered court]

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

6 JUDGE LIU: Well, good afternoon, ladies and gentlemen.

7 Call the case, please, Mr. Court Deputy.

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

9 IT-01-48-PT, the Prosecutor versus Sefer Halilovic.

10 JUDGE LIU: Thank you very much.

11 May I have the appearances, please.

12 For the Prosecution first.

13 MS. CHANA: May it please, Your Honours. Sureta Chana, Phil

14 Weiner, Manoj Sachdeva, and David Re for the Prosecution, assisted by Ana

15 Vrljic, our case manager.

16 JUDGE LIU: Thank you.

17 I have a question to you: In the latest filings from the

18 Defence -- oh, I'm sorry, I got confused, you know, with all those

19 documents, all the latest filings. Yeah. I'm sorry about that.

20 And for the Defence.

21 MR. MORRISSEY: Yes. May it please, the Court. My name is Peter

22 Morrissey, I appear for Mr. Sefer Halilovic, and with me is Mr. Mettraux.

23 And we are assisted by Mr. Amir Cengic, who's a legal assistant, and also

24 present in court is Medina Delilac, investigator.

25 JUDGE LIU: Thank you.

Page 235

1 I noted that the Defence also have an armada of the Defence

2 counsels. This is very rare.

3 MR. MORRISSEY: Yes, Your Honour.

4 JUDGE LIU: Thank you.

5 Well, Mr. Halilovic, can you hear the proceedings in a language

6 that you understand?

7 THE ACCUSED: [Interpretation] Yes. Yes, I can, Your Honour.

8 JUDGE LIU: I won't ask you the same question every day, but if

9 you have any problems to follow the proceedings, please let me know as

10 soon as possible.

11 And I'll ask you some questions: When did you arrive in

12 The Hague after your provisional release?

13 THE ACCUSED: [Interpretation] I arrived on Thursday evening.

14 JUDGE LIU: Thank you.

15 The Trial Chamber has noted that Mr. Halilovic arrived in -- in

16 the UN Detention Unit on the 20th of January, 2005, after the provisional

17 release.

18 Do you have anything to complain at this stage?

19 THE ACCUSED: [Interpretation] No, Your Honour. Everything is in

20 good order.

21 JUDGE LIU: Are you ready for trial?

22 THE ACCUSED: [Interpretation] Yes.

23 JUDGE LIU: Thank you very much. You may sit down, please.

24 This is a Pre-Trial Conference held in accordance with

25 Rule 73 bis (A) of the Rules of Procedure and Evidence of the Tribunal.

Page 236

1 Under a decision rendered by the Presiding Judge of the Trial Chamber on

2 the 18th January 2005 to discuss some specific issues with the aim to

3 prepare and facilitate the proceedings.

4 By the order of the President, dated the 17th of January, 2005,

5 the case is assigned to Trial Chamber I. The Bench will probably be

6 composed of Judge El Mahdi, from Egypt, an ad litem Judge, Szenasi, from

7 Hungary, and me, Judge Liu, from China. The party met by a written

8 decision to this effect rendered by the President of the Tribunal

9 tomorrow.

10 Today we have a very heavy agenda. There are several issues to

11 be discussed: Namely, the outstanding issues, outstanding motions,

12 witness lists, exhibits, guidelines for the admission of the evidence,

13 case presentation, and possibly any agreed facts, if there's any.

14 Frankly speaking, I only got some materials of this case in less

15 than a week's time, and I'm not quite familiar with the case at this

16 moment, so this Pre-Trial Conference might be the first phase. If

17 necessary, we will have the second phase of it on Thursday morning.

18 Let us begin with the easiest one, that is, the case

19 presentation.

20 According to the schedule, this trial will commence on next

21 Monday, the 31st of January, at 9.00 in the morning in Courtroom III with

22 the opening statement of the Prosecution.

23 Are there any questions on the side of the Prosecution?

24 MR. WEINER: Your Honour, Philip Weiner for the Office of the

25 Prosecutor.

Page 237

1 On Monday, the 31st at 12.00, two of the attorneys on this case

2 have to take a judgement, the Strugar instrument. The senior trial

3 attorney, Susan Somers, is in the United States, or will be leaving for

4 the United States on Wednesday, and the two remaining senior counsel of

5 the four counsel on that, both Mr. Re and myself, were planning to attend

6 or we have to be there as the two lead counsel.

7 JUDGE LIU: Well, I think Monday morning we are only going to

8 deal with the opening statement. Could you please tell me who is going to

9 deliver that opening statement.

10 MR. WEINER: Attorney Sureta Chana. So if it's just the opening

11 statements, then the -- the session should end by noontime and we could

12 then attend the judgement.

13 JUDGE LIU: Could I have any indication how long that opening

14 statement will last? Just give me a rough idea. Wine --

15 MR. WEINER: One and a half to two hours.

16 JUDGE LIU: Thank you very much.

17 MR. WEINER: That shouldn't be a problem, Your Honour. We should

18 be available in the other courtroom at 12.00 then.

19 JUDGE LIU: Thank you very much.

20 And by the way, during the opening statement, we believe that no

21 objection is allowed since this is just a presentation of the theory of

22 the case by one side, which means this is the views expressed by one side.

23 Unless there is some very serious mischaracterisation of the common facts,

24 the other party may raise some comments or suggestions on that. Is that

25 understandable?

Page 238

1 MR. MORRISSEY: Your Honour, we agree and we'll abide by that.

2 We should make the comment that we understand exactly how Your

3 Honour puts that. We are concerned that the opening statement remain

4 within the pleadings. We will listen carefully, but we will not

5 interrupt. Any comments we have to make, we shall make at the end of that

6 opening speech, if that is appropriate.

7 JUDGE LIU: Well, we will see at that time.

8 The trial will commence on the five-day-a-week schedule. The

9 Trial Chamber may adjust its schedule as necessary due to witness-related

10 issues, specific requests by the parties, and unforeseen circumstances.

11 Each day we'll have three sittings, and each sitting will last for about

12 80 minutes, with two breaks in between. Each will be 20 minutes, since

13 we'll only have one witness -- one accused in this trial.

14 The case will be heard in Courtroom III throughout the trial

15 since this is the only courtroom with the e-court system, which is

16 supposed to be a non-paper trial.

17 Frankly speaking, it is also something new to the Judges in our

18 whole judicial career. Fortunately, we have technicians ready to help us

19 at any time of the proceedings.

20 There's only two matters I would like to mention in this aspect:

21 First, we should welcome the trial proceedings of twenty-first century

22 with an open heart; secondly, I would like to remind both parties to

23 present their case slowly and clearly.

24 Some counsel may argue that might reduce the effect of the

25 persuading force of their argument, but what is most important and

Page 239

1 effective way is to let the Judges and interpreters to understand your

2 point and let the court reporter type down whatever you said in your

3 statement.

4 To facilitate the proceedings, the party calling the witness or

5 presenting evidence through the witness shall provide a list of witnesses

6 and documents to the court deputy one or two days before so that he could

7 be very prepared to find out the documents which are going to be used in

8 the hearings.

9 At this moment, I would like to remind the parties that there are

10 some amendments on the Rules of Procedure and Evidence of the Tribunal

11 which might affect our case.

12 For instance, the Rule 98 bis on the judgement of acquittal has

13 been amended by the Plenary last December, which implies there might be a

14 shorter interval between the Prosecution's case and the Defence case.

15 At this moment, I would like to know whether the accused would

16 like to make a statement in accordance with the Rule 84 bis after the

17 Prosecutor's opening statement.

18 Yes, Mr. Morrissey.

19 MR. MORRISSEY: Your Honour, the answer to that inquiry is no, he

20 does not wish to.

21 JUDGE LIU: Thank you very much.

22 But I have to remind you that from the Rule of the Procedure

23 understand that the accused has the right to make a statement at any time

24 during the proceedings.

25 MR. MORRISSEY: Yes. Thank you, Your Honour.

Page 240

1 JUDGE LIU: Thank you.

2 Any questions, any issues concerning with the ways of presenting

3 the case?

4 MR. RE: Yes, Your Honour, there is one question arising from

5 Your Honour's ruling a moment ago about the provision of -- or list of

6 witnesses and documents to the court deputy one to two days before the

7 witness is called to give evidence.

8 Our query is: Does that relate to cross-examination as well? We

9 are aware that in different Trial Chambers different practices occur, both

10 in the more common-law type Chambers and the more civil-law benches. We

11 seek Your Honour's guidance in relation to the provision of notice to the

12 other side as to whether or not we have to inform the other side as to

13 which documents we intend to use in cross-examination of witnesses.

14 The Prosecution submits that what is good for one side must be

15 good for the other, whatever Your Honour's ruling is.

16 JUDGE LIU: Mr. Morrissey, do you have any comments on this

17 issue?

18 MR. MORRISSEY: Well, if Your Honour seeks submissions at this

19 stage, our submission is that it shouldn't be required at this stage.

20 There is some merit in what my learned friend says about equality between

21 the parties in the practices, and I would respectfully agree. But our

22 submission is that unless there's a pressing reason to do so in the

23 circumstances of a case, and it's conceded that there are some cases where

24 that may be needed, then the normal course is that it shouldn't be

25 required, that the documents to be put or potentially to be put during a

Page 241

1 cross-examination have to be disclosed in advance. Often we don't know if

2 we're going to be putting such documents until a particular line of

3 answers may occur.

4 For those reasons, unless there be a good reason to depart from

5 that, I would submit there's no need for us to do so, nor at this stage

6 can I see a pressing argument for the Prosecution to be compelled in a

7 different way.

8 JUDGE LIU: Well, the purpose of this ruling is to let the court

9 deputy be prepared and to facilitate the proceedings of the case. So

10 there's a strict requirement from the parties having their case in chief.

11 As for the parties for the cross-examination, we are looking for

12 your bona fide attitude in this aspect. There's no strict requirement for

13 the parties cross-examining the witness to present that list beforehand.

14 I understand that during the direct examination there might be

15 some questions raised which requires some new materials to be presented in

16 the cross-examination of that witness. That is quite natural and

17 reasonable. But I still hope that the parties could inform the court

18 deputy beforehand or maybe even before they start their cross-examining

19 that witness on the materials they are going to use because in this case

20 we are going to have the first taste of the e-court system.

21 MR. MORRISSEY: Your Honour, well, we hear and accept what Your

22 Honour says.

23 JUDGE LIU: Thank you very much. You may sit down, please.

24 The next issue is about the guideline of the admission of

25 evidence. There are some guidelines in the admission of the evidence in

Page 242

1 this case. I will mention some elements in this guideline. If it's

2 required, the party could issue it in a written form.

3 First, the parties should always bear in mind the basic

4 distinction that exists between the admissibility of documentary evidence

5 and the weight that documentary evidence is given under the principle of a

6 free evaluation of evidence.

7 The practice will be, therefore, in favour of admissibility as

8 the rule.

9 Secondly, the fact that this Trial Chamber may rule on

10 admissibility of some particular document or other piece of evidence will

11 not prevent the ruling being reversed. In the case of non-admission, at a

12 later stage, as further evidence emerges that is relevant, has probative

13 value and hence justified admission of the evidence in question. In a

14 case of the admission into the evidence, a decision may be quashed if good

15 cause is shown for doing so.

16 Thirdly, the mere admission of documents into evidence does not

17 in itself signify that statements contained therein will necessarily be

18 deemed to be an accurate portrayal of the facts. Factors such as

19 authenticity and proof of authorship will naturally assume greatest

20 importance in the Trial Chamber's assessment of the weight to be attached

21 to individual pieces of evidence.

22 Fourthly, when objections are raised on the grounds of

23 authenticity or reliability, this Trial Chamber will follow the practice

24 this Tribunal has previously adopted; namely, to admit documents and video

25 recordings, then decide what weight to give them in the context of the

Page 243

1 trial record as a whole.

2 On request of a party or proprio motu the Bench may order the

3 party tendering copies of the evidence to present the original or the best

4 legible, audible, visible copy available.

5 Fifth, there's no blanket prohibition on admission of documents.

6 Simply on the grounds that the purported author has not been called to

7 testify. Simply the fact that a document is unsigned or unstamped does

8 not, a priori, render it void of authenticity. Authenticity and proof of

9 authorship will assume the greatest importance in the Trial Chamber's

10 assessment of the weight to be attached to individual pieces in the

11 framework of the free evaluation of evidence.

12 Sixth, hearsay evidence here is admissible out of court

13 statements which a Trial Chamber considers probative admissible under

14 Rule 89(C), as it was stated by the Appeals Chamber in Aleksovski case.

15 The Trial Chamber has a broad discretion under Rule 89(C) to admit

16 relevant hearsay evidence.

17 Seventh, the best-evidence rule will be applied in the

18 determination of matters before this Trial Chamber. This essentially

19 means the Trial Chamber will rely on the best evidence available in the

20 circumstances of the case and the parties are directed to regulate the

21 production of their evidence along these lines. What is the best evidence

22 will of course depend on the particular circumstances attached to each

23 document and to the complexity of this case and the investigations that

24 preceded it.

25 Eighth, Rule 95 provides for the exclusion of improperly obtained

Page 244

1 evidence. It declares that no evidence shall be admissible if obtained by

2 methods that cast substantial doubts on its reliability or if this

3 admission is antithetical; two, and would seriously damage the integrity

4 of the proceedings.

5 Ninth, the Trial Chamber emphasises what it considers to be the

6 overriding principle in the matters of admissibility of evidence. The

7 Trial Chamber is pursuant to the Statute of the Tribunal, the guardian and

8 the guarantor of the procedural and substantive right of the accused. In

9 addition, it has the obligation to strike a balance in seeking to protect

10 the rights of victims and witnesses.

11 Finally, the Trial Chamber may be obliged to produce evidence

12 proprio motu as foreseen in the Rules.

13 Are there any questions from the parties concerning with those

14 guidelines?

15 Maybe we could have a more clear picture when you get the written

16 guidelines.

17 MR. MORRISSEY: Yes. Well, we -- there are a couple of matters

18 that I would seek to respond to, Your Honour, and I could do so more

19 briefly and focusedly if I could wait and get the written guidelines.

20 JUDGE LIU: Yes. Yes, please.

21 MS. CHANA: Your Honour, there is one matter I will bring up in

22 respect of exhibits that you've just outlined, and that would be that I

23 know that the Defence has an obligation to indicate to the Chamber as to

24 what exhibits they would be objecting to on the grounds of authenticity or

25 any other way. And it would assist the smooth process of this trial if we

Page 245

1 could actually know that, because we have already filed an exhibit list

2 before this Chamber, and we would like to introduce that into evidence as

3 bulk, and given this e-court, perhaps it will facilitate it if all the

4 exhibits are entered into evidence and if the Defence would like to object

5 to any particular exhibits, then they can indicate those. Otherwise, we

6 could introduce our exhibits in a bulk form.

7 JUDGE LIU: Thank you very much.

8 There are a lot of filings from the Defence team, but I did not

9 find any response to the Prosecution's motions concerning the exhibit

10 list.

11 [Defence counsel confer]

12 MR. MORRISSEY: Yes. Your Honour, I'm -- well, we can respond to

13 that by saying that there has been an extremely recent response filed in

14 relation to that, which if it has not reached Your Honour now will do so

15 this afternoon but is now filed.

16 JUDGE LIU: Thank you very much. Thank you very much indeed.

17 Now let's come to the outstanding motions.

18 MR. MORRISSEY: Your Honour, may I -- would Your Honour excuse me

19 a moment, please. Sorry.

20 JUDGE LIU: Yes.

21 MR. MORRISSEY: May I respond to the matter raise by my learned

22 friend, Ms. Chana, a moment ago very briefly without entering into a

23 debate and argument about it at this stage.

24 Your Honour, we are now in a position to give an indication about

25 the exhibit list yet for a number of reasons. The Prosecution exhibit

Page 246

1 list is not to be relitigated in this court because there are motions

2 before you already, but it's safe to say and uncontroversial to say that

3 that exhibit list is very volatile right now, and there are a number of

4 reasons why the Defence must be very cautious in making the concessions

5 that are sought.

6 As you will see from the filings, there's been some concern about

7 a particular investigator, and there has been ongoing concern about the --

8 the volatility of that list.

9 We are keen to be cooperative, and we will be, but as I think the

10 Prosecution would readily appreciate at this moment, we can't be. And

11 therefore, I would ask that that question be deferred until the Chamber

12 has ruled on the relevant motions which touch upon that very matter.

13 JUDGE LIU: Maybe we could revisit this issue on Thursday

14 morning.

15 MR. MORRISSEY: As the Court pleases.

16 JUDGE LIU: It seems to me that both parties agreed with this

17 proposal.

18 Now, let's come to the outstanding motions. Frankly speaking,

19 I -- at this moment I don't know how many motions are pending at this

20 moment because in the last two hours I received about four motions from

21 the Defence team.

22 Let me deal with them one by one. And if I miss something, I

23 believe that the capable Defence team will remind me about that.

24 The first one is filed on the 20th January, a motion for striking

25 out paragraphs in the Prosecution's pre-trial brief. Any response from

Page 247

1 the Prosecution side?

2 Yes.

3 MR. RE: The response in brief, Your Honour, is that we received

4 this document today. I first saw it about an hour and a half ago. We are

5 not in any position today to orally -- orally respond to it in any detail.

6 However, I can certainly foreshadow our response will be along the lines

7 of the pre-trial brief as filed is not evidence. The Defence well and

8 truly are on notice of the nature of our case from the statements we have

9 disclosed to them. The exhibits on our exhibit list, the pre-trial brief,

10 both versions, the notice we gave to the Defence in the purported

11 supplement to the pre-trial brief, which although the Trial Chamber ruled

12 against its admission -- against its filing as a supplement or amendment

13 to the pre-trial brief, the Prosecution maintains it's still notice to the

14 Defence as to the legal case theory.

15 We do concede the last portion of the -- the last paragraph of the

16 motion filed -- field today in relation to paragraph 207 and the accused's

17 alleged responsibility as a deputy commander of the army. We concede -

18 I'll say it straight up right now - that what is in the pre-trial brief is

19 incorrect. That's at paragraph 39 of the motion. We concede that and we

20 don't push that, don't seek for it to be relied upon.

21 But our response is generally that the Defence are on proper

22 notice of what our case is and we will respond to the details in that

23 within the time over the next week.

24 JUDGE LIU: Thank you very much.

25 I think you are luckier than I am because I only got this

Page 248

1 document 30 minutes before the start of this trial. So I believe that,

2 you know, we are not in the position to discuss it in details for this

3 motion. But I shared the views expressed by the Prosecution. I feel very

4 strange and awkward for a Defence team to file this kind of motion to

5 strike some paragraphs, some words, from the Prosecution's pre-trial

6 brief.

7 As I said, that the pre-trial brief is just like an opening

8 statement, which reflected the one-sided view of the party.

9 I understand that the Defence team could not totally agree with

10 the positions of the Prosecution. That's quite natural. But I don't

11 think there's any necessity for the Defence to file a motion asking for

12 the striking out certain paragraphs.

13 But anyway, we will deal with it maybe on Thursday. Yes.

14 The next motion is the motion for the postponement of witness

15 testimony and for full disclosure of the relevant materials.

16 I am not quite familiar with this motion. Maybe, Mr. Morrissey,

17 you could brief me a little bit on this motion.

18 MR. MORRISSEY: I can indicate to Your Honour why it is and the

19 rationale for the motion. Is that what Your Honour seeks? Some guidance

20 as to it?

21 Your Honour, Salko Gusic is a witness currently proposed to be

22 called by the Prosecutor. He's one of three witnesses who is at a higher

23 level within the army command, and in particular -- he is in fact the

24 commander or was the commander at the time of the 6th Corps in the -- in

25 whose line of responsibility or, according to the Crown case near to

Page 249

1 whose -- the Prosecutor's case, near to whose assigned a responsibility

2 this all took place.

3 Now, in dealing with Mr. Gusic at an early stage, the Defence

4 foresees -- or sees a number of problems. And I can list what they are

5 and indicate why it is that we seek that he be called later and why it is

6 that we seek to engage Your Honour in this discussion at all rather than

7 simply doing it by discussion with the Prosecutor.

8 First of all, we have very recently been provided with material

9 indicating that Mr. Salko Gusic was in fact interviewed as a suspect

10 himself. We are told with respect to -- and it is the case, with respect

11 to other matters.

12 JUDGE LIU: Well, Mr. Morrissey, I do -- don't know about the

13 status of this witness, whether there are any protective measures. And

14 the -- do we need to go to the private session? I'm seeking the advice

15 from the Prosecution's case -- the Prosecution's team.

16 MR. MORRISSEY: Your Honour, could I indicate I'm not aware of

17 any, but the Prosecutor may.

18 JUDGE LIU: Yes.

19 MR. WEINER: Your Honour, although there are no measures at this

20 time, if one is going to talk about allegations against the person, I

21 think it should be in private session.

22 JUDGE LIU: Yes. Yes. But, Mr. Morrissey, I don't think that we

23 should go into the very details of this motion at this stage. I just want

24 to hear the kind of, you know --


Page 250

1 JUDGE LIU: -- outline of your motion, you know. You may, you

2 know, give us a very rough idea, though, about how this motion is.

3 MR. MORRISSEY: If Your Honour is imposing the 30-second limit.

4 I'll abide by that.

5 The limit is that -- the areas of concern are, firstly, when a

6 time to find out whether there's any more to know about Mr. Gusic;

7 secondly, we think that he if were to be called early, he'd be a witness

8 who lacks context. Being a higher-level witness, the Court being unaware

9 of the crime base and of the reasons why his role is of some importance in

10 the case, it would require an artificial examination-in-chief by the

11 Prosecutor, assuming a lot of facts which haven't been proved yet, and it

12 would impact on cross-examination as well because it would mean we'd have

13 to cross-examine him about facts that he either knew or should have known

14 or might have known without Your Honour having any idea of those facts, of

15 their importance, of whether the Court's inclined to accept them or not.

16 And in short, it would lead to a very artificial situation in dealing with

17 this witness.

18 It's not for the Defence to indicate why the -- what order the

19 Prosecution should call witnesses, but it is for the Defence to indicate

20 the difficulties it would cause us and the difficulties we think it might

21 cause you, the Tribunal.

22 We think if he was called early, you'd get an artificial view of

23 him and we would find ourselves in some difficulties making the

24 cross-examination mean something because the crime base and other matters

25 from, if you like, lower-down witnesses were not yet established.

Page 251

1 So that there really are two matters: First of all, there may be

2 developments about Mr. Gusic himself - we think there will be, but we

3 certainly want time to check - and secondly, it would cause an

4 artificiality and make it more difficult for the Court to properly assess

5 what probative weight to give him and his evidence.

6 JUDGE LIU: Thank you. I think you did a pretty good job.

7 Well, you know, I think we'll deal with this matter at a later

8 stage.

9 Yes. Yes.

10 MR. WEINER: I was going to respond now, since this witness is

11 the third witness to be called at this point, or we can wait till

12 Thursday, whatever Your Honour pleases.

13 JUDGE LIU: Yes. I think the best way is for us to wait until

14 Thursday.

15 MR. WEINER: That's fine.

16 MR. MORRISSEY: Your Honour, I'm reminded -- I'm sorry to

17 lengthen my 30 seconds. May I just mention this: There remains material

18 concerning -- concerning Mr. Gusic which we await from the Prosecution,

19 and we urgently want that to be provided.

20 JUDGE LIU: Yes.

21 MR. WEINER: Your Honour, there is no material. In fact, there

22 is a misstatement in their motion. They've indicated that they had not

23 received a transcript of the suspect interview, which we have a signed

24 receipt of their -- of their receipt of their receiving that transcript.

25 And that's on the 17th of January, 2005.

Page 252

1 Other than that, if you -- if the Court would like to wait till

2 Thursday, there is no additional material in relation to this witness.

3 JUDGE LIU: Thank you very much.

4 I hope that both parties could meet after this sitting and try to

5 iron out any wrinkles on that.

6 MR. MORRISSEY: Your Honour, we will do so. However, let me

7 indicate that when my friend, Mr. Weiner, points out to the Court that

8 there's an error, he's also got a corrigendum provided to him by us

9 indicating that. So that error was acknowledged sometime ago. However,

10 Your Honour, we will iron out --

11 MR. WEINER: No, excuse me. That's wrong. There were two motions

12 filed in a row. In each one they claimed they had not received a

13 transcript. With regard to the first witness, they have filed a notice of

14 an error. They have not filed it with regard to the second motion they

15 have filed. They made the same mistake again, and there has no -- no

16 correction has been filed.

17 JUDGE LIU: There's no need to argue here at this moment. I have

18 already ruled that after this sitting the parties should meet together to

19 solve this problem. And we are expecting a report from the parties on

20 Thursday morning.

21 The next issue is about the videolink conference. Any objections

22 from the Defence?

23 MR. MORRISSEY: The videolink conference, Your Honour, it relates

24 to the witnesses Miletic and Pranjic. Your Honour, the evidence that's

25 been provided to us at this stage renders us unable to consent to it. But

Page 253

1 I wanted to put this on the record that I've been given some advice orally

2 about the situation for those two potential witnesses. And if that is

3 confirmed in writing, we are going to consent. However, the current state

4 of the materials is such that we cannot. Rather than engage the Court in

5 that, you may permit us to iron out those wrinkles by Thursday and we --

6 they will be ironed out one way or other by that time.

7 JUDGE LIU: Now, Mr. Morrissey, I think this trial is supposed to

8 be a non-paper trial, which means that you have to reduce the paperwork as

9 much as possible. We try to solve all problems in the courtroom orally.

10 MR. MORRISSEY: Yes. I can indicate, Your Honour, what it --

11 what the difficulty is.

12 The Prosecution has been good enough to provide us with certain

13 medical material. Our opinion is it doesn't suffice, but it leaves open

14 the question. Rather than trouble Your Honour with it, I've asked for

15 further particulars about it. And that's where the matter now stands. We

16 don't require -- I'm sorry, I've used the term "writing," perhaps as

17 shorthand, Your Honour, and I agree it's a habit of mine that will have to

18 be cured. But Your Honour will be aware that there are some important

19 interests at stake in having the witnesses present about which you may not

20 require a speech from me right now. But it's important for Mr. Halilovic

21 to have the witnesses present in court. These witnesses are capable of

22 being controversial. I don't say that they are. But they may well be.

23 So there is a genuine issue for decision. But I've indicated

24 what our position is, and it may be that on Thursday we advise the Court

25 that there is no issue.

Page 254

1 JUDGE LIU: Thank you very much. I believe that this is also a

2 issue for the parties to discuss after this sitting.

3 Yes. I think there are three Prosecution applications or

4 submissions on my list, but most of them are concerning with the witnesses

5 or exhibits. Could we deal with them on Thursday? Because it will go to

6 the specifics of the particular witness.

7 Is this agreeable?

8 MS. CHANA: Yes, Your Honour.

9 JUDGE LIU: Thank you very much.

10 And as for the 92 bis motions and expert reports, I prefer to

11 defer the 92 bis motion at a later stage.

12 The other motions are currently under the consideration by this

13 Trial Chamber and will be ruled on in due course.

14 But this morning we received another two new motions from the

15 Defence team, and I wonder whether we could do it on Thursday morning or

16 not.

17 Yes. Yes, Mr. Morrissey.

18 MR. MORRISSEY: Your Honour, well, the Defence is certainly

19 content for that to be done.

20 JUDGE LIU: Would you please tell the Prosecution the title of

21 those two new motions.

22 MR. MORRISSEY: Sorry.

23 [Defence counsel confer]

24 MR. MORRISSEY: Your Honour, because we filed -- we thought we --

25 well, we filed, we believed, some -- some motions on Thursday. We just

Page 255

1 would ask to clarify which ones Your Honour is referring to there.

2 JUDGE LIU: I think one is dated on the 24th January 2005, today;

3 that is a response to Prosecution's motion to add and to withdraw

4 exhibits.

5 MR. MORRISSEY: Yes. That's the one I referred to at the

6 commencement of today's.

7 JUDGE LIU: And the other is a further addendum to the Defence

8 response to Prosecution's motion to add and withdraw witnesses. This is a

9 confidential filing.

10 MR. MORRISSEY: Yes. That -- that latter filing relates to -- is

11 a confidential filing. Does Your Honour wish us to provide details of

12 that after today's session to the ...

13 JUDGE LIU: Well, maybe after today's session. I don't think the

14 Prosecution has been noticed on those two motions.

15 MS. CHANA: Your Honour, I think we have one of the motions,

16 which is a strike out of the pleadings of our 65 ter filing, but not the

17 other one.

18 JUDGE LIU: That's last week's motion. Now --

19 MS. CHANA: That's right.

20 JUDGE LIU: They are very diligent in filing the motions.

21 MS. CHANA: Yes, Your Honour. There's -- this response, we have

22 just got it just before we came to court, so we confirm that.

23 JUDGE LIU: Thank you very much.

24 The next issue is about witnesses and protective measures. And

25 today we are going to have just preliminary discussions of the witness

Page 256

1 list. And I have a question to address to the Prosecution, that is, how

2 many live witnesses the Prosecution are going to call.

3 MS. CHANA: We are going to be calling 37 witnesses, including

4 our expert witness, Mr. Ridgway.

5 JUDGE LIU: And how long do you think your case will last?

6 MS. CHANA: Your Honour, the indication we'd given at the 65 ter

7 and the last Status Conference was two and a half to three months.

8 JUDGE LIU: Thank you.

9 Well, I think we'll discuss the witness list on Thursday, but now

10 I would like to give my initial response. I believe that the list of the

11 live witnesses could be further shortened. For instance, from the

12 pre-trial brief filed by the parties, especially by the Defence, I

13 understand that there's no disputes on certain matters. For instance, on

14 the crimes happened in Grabovica and Uzdol.

15 Am I right, Mr. Morrissey? You do not deny that that murder

16 happened in those two places?

17 MR. MORRISSEY: Your Honour, you are both right and wrong, with

18 respect. There is a dispute as to a number of the victims.

19 JUDGE LIU: Yes. Yes, of course.

20 MR. MORRISSEY: There's no dispute that certain people -- that

21 people were killed in each place.

22 JUDGE LIU: Yes.

23 MR. MORRISSEY: And without specifying who at this point, there

24 will be no dispute that certain people were murdered in those places.

25 JUDGE LIU: Yes. How about the perpetrators?

Page 257

1 MR. MORRISSEY: I'm sorry, Your Honour?

2 JUDGE LIU: How about the perpetrators, the offenders? Are there

3 any disputes on that?

4 MR. MORRISSEY: Your Honour, it's -- there's a difficulty about

5 that because the Prosecution, we say, has not disclosed who they are, so

6 we are -- we are in some -- some doubt about that. And it comes back to

7 something raised by Your Honour before as to why we were seeking to strike

8 paragraphs at this late stage and engaging in controversies that Your

9 Honour would normally expect to be dealt with long ago and not raised at a

10 late stage to embarrass the Prosecution.

11 There's a historical reason for it that I'll raise now. It's,

12 without engaging in the controversy, but it will assist Your Honour

13 perhaps in understanding why it's happened. Long ago in the middle -- in

14 fact, early -- I think at the end of 2003 a motion for further particulars

15 was moved by the Defence and was dismissed by the Trial Chamber at the

16 time later on the basis that sufficient notice was given because of the

17 pleadings, the indictment, the pre-trial brief, and the supporting

18 material, that being the witnesses. At that time the supporting material

19 was much, much bigger than what is now before the Court.

20 So there is, I have to say -- clearly there remains controversy as

21 to who were the perpetrators. However, there are some who plainly are

22 perpetrators. It may be disputed between the parties as to how many and

23 where from, and that, I take it, is clear on the face of the material and

24 in particular on the face of the material disclosed to us by the

25 Prosecutor.

Page 258

1 JUDGE LIU: Well, I quite understand your position. So it means

2 that there's no dispute between the parties that atrocities, which is

3 murder, happened during the places but there is still some disputes

4 concerning the number of the victims as well as who the perpetrators are?

5 MR. MORRISSEY: As to Grabovica, that accurately statements the

6 situation. As to Uzdol, the situation is further complicated because

7 although there is evidence that -- well, perhaps the whole crime base at

8 Uzdol does create a problem. I'm not sure what to -- what knowledge to

9 presume that Your Honour has in entering into detail here. I'll become

10 detailed swiftly if not checked, Your Honour.

11 JUDGE LIU: Well, I'm just reading from the brief trials you

12 submitted to us.

13 MR. MORRISSEY: Our pre-trial brief, Your Honour, was submitted

14 long ago and in relation to a case that has been changed quite

15 significantly. So that whilst we have not sought at this point at all to

16 change that pre-trial brief, Your Honour is now and we are now facing a

17 different -- a case that is of a different colour, although it's still a

18 7(3) case. And there have been significant changes in recent times in

19 response to which we have moved motions. And the matters raised by Your

20 Honour, frankly we understand entirely. But we are, we think, facing a

21 moving target, about which we have said much in our motions. And it's for

22 that reason that I'm answering Your Honour in the equivocal way that I am.

23 JUDGE LIU: Well, I have some difficulty to appreciate your

24 points at this moment. I think it's quite clear in the indictment.

25 The -- your client is only charged with murder, and according to the

Page 259

1 Rule 7(3), that is, commander's responsibility.

2 We also have such kind of saying in our jurisdiction, and it's

3 kind of flying dishes, you know, in the shooting games, you know, we have

4 the flying object and the fixed object, you know. But here from the

5 indictment we see that the object is fixed already. That is the 7(3),

6 murder. It's quite clear. But that's maybe just because I'm not quite

7 familiar with this case. I did not read all the materials on this case at

8 this moment, so I make these comments. But maybe later on I will learn

9 more on it.

10 But in this aspect, I still believe that, you know, there's

11 some -- still some room for improvement to shorten the witness list or to

12 shorten the direct examinations on certain witnesses. For instance,

13 the -- you may sit down, please.

14 The -- the video footages, you know, I believe that the

15 Prosecution could use them in their opening statement and introduce them

16 through the 92 bis if they do not go indirectly to the actual conduct of

17 the accused. They only described the murder happened. This is, you know,

18 just a suggestion, you know.

19 I would hear the response from the Prosecution.

20 MR. RE: Your Honour, I'll respond to that. There's something my

21 learned friend, Mr. Morrissey said when he prefaced his remarks in

22 response to Your Honour's question. And that was as to the identity of

23 the perpetrators. Mr. Morrissey said that the Prosecution has not

24 disclosed to the Defence who the perpetrators are.

25 Now, the Prosecution takes very strong exception to that

Page 260

1 statement being made in this Pre-Trial Conference because it strikes -- it

2 is an allegation that we are not complying with our disclosure obligations

3 and that we are somehow withholding information from the Defence as to the

4 identity of the perpetrators, whoever they may be. The Prosecution states

5 very clearly on the record that we have provided all known material

6 relating to the identity of the perpetrators to the Defence and we simply

7 cannot take that matter any further.

8 If he has any information that suggests other people are

9 perpetrators, we ask him publicly to please provide it to us and we will

10 look into it. Other than that, there's nothing more we can give them.

11 JUDGE LIU: Thank you very much. I have already noticed that

12 point. But the Prosecution did not answer my question put to them. Are

13 there any rooms for improvement by shortening the length of the testimony

14 of the witnesses?

15 MR. RE: Your Honour may not -- as Your Honour is not as familiar

16 as the case -- with the case for the obvious -- obvious reasons you've

17 just come into it. We've taken, I think, 69 witnesses from the original

18 filed list, and we did that just before the break in late December. We

19 take Your Honour's point. Of course there is always room for improvement.

20 We will endeavour to cut the list further. We are also looking at the

21 issue of the use of 89 -- Rule 89(F) and calling witnesses under 89(F),

22 which should, if we can do it, reduce the proceedings further.

23 In relation to the video, we certainly do intend to show the

24 overhead videos of the crime scenes at Uzdol and Grabovica and if possible

25 during the opening statement. We do not anticipate any objection from the

Page 261

1 Defence to us laying the groundwork there.

2 If Your Honour is referring to the BBC journalist, Ms. Adie's

3 video, that of course depends upon agreement with the Defence as to

4 whether they wish to cross-examine the witnesses.

5 A lot of the points Your Honours -- Your Honour has raised very

6 much -- are very much up in the air at the moment. It depends upon

7 cooperation with the Defence as to how we can limit the -- the case. We

8 are anxious to limit it and to confine it to the issues of the accused's

9 responsibility under Article 7(3).

10 We will be meeting -- we have met with Mr. Morrissey. We will

11 attempt to do it again, and -- on Thursday morning I hope we will be in a

12 position to report back to Your Honour.

13 Does that answer Your Honour's question?

14 JUDGE LIU: Thank you very much. But my question is posing to

15 you, that is, for instance, as for the first witness, can you let the

16 Defence do the cross-examination only if they need a cross-examination,

17 without any direct examination on your part?

18 MR. RE: The -- probably not with the first couple of witnesses.

19 They are live crime -- live crime-scene witnesses. The Prosecution, as

20 Your Honour appreciates, would wish to mix some live crime-scene witnesses

21 who can identify the direct perpetrators, which goes to the identity of

22 those who committed them -- committed the crimes and whether or not they

23 were under the accused's effective control. We wish to mix those with

24 some witnesses who can give their evidence under 89(F) or possibly,

25 according to the rulings, in relation to the ambit of 7(3) responsibility,

Page 262

1 under 92 bis.

2 So with the first couple, probably not. But as we move into the

3 trial, we certainly want to try and limit the live testimony, if we can,

4 according to Your Honour's directions.

5 But again that, depends very much upon the Defence and how much

6 they will agree to.

7 JUDGE LIU: Thank you very much for your cooperation.

8 And generally speaking, the Bench would like to hear one witness

9 for one day, including cross-examination.

10 Since there are 37 witnesses -- live witnesses in this case, I

11 wonder if eight weeks - that is, two months - will be possible for the

12 Prosecution to finish her case.

13 MS. CHANA: Your Honour, that sounds like a sensible estimate,

14 but we would like to say there would be some witnesses who probably will

15 not take a morning session and, as opposed to others, who might even take

16 a couple of days. So I don't know if that would feature.

17 JUDGE LIU: Generally speaking, is it feasible to finish your

18 case in eight weeks?

19 MS. CHANA: Yes, Your Honour. We will certainly endeavour to

20 finish it by eight weeks. And I think that's a reasonable estimate.

21 JUDGE LIU: Thank you very much.

22 I understand there's no protective measures or delayed disclosure

23 of identity of the witness as being requested during the pre-trial phase

24 of this matter.

25 MS. CHANA: Yes. We have not filed any -- any protective

Page 263

1 measures for any of the witnesses, Your Honours, simply because we've been

2 asking the witnesses if they can justify such protective measures being

3 sought from -- from the Chamber.

4 But as we go along and as we proof them, if there are some

5 concerns that they display, we will certainly be filing such motions at

6 the time. But at this time, we haven't filed any because, as I said, we

7 have not been entirely satisfied ourselves.

8 JUDGE LIU: Thank you very much.

9 I just want to bear in mind that as a rule all the trial should

10 be conducted in the open session unless there's some extraordinary reasons

11 justifying your request.

12 As a practice -- yes.

13 MR. MORRISSEY: Sorry, Your Honour.

14 JUDGE LIU: Yes.

15 MR. MORRISSEY: I didn't mean to interrupt.

16 JUDGE LIU: Yes, Mr. Morrissey.

17 MR. MORRISSEY: But prior to another topic. I would simply ask

18 to put on record that we ask to be given a sufficient opportunity to

19 respond to any such motion, by which I mean not being told on the morning

20 that such a motion is to be moved, because we would want to be heard about

21 it. And so bearing in mind what Your Honour has just said, I need add no

22 more than to say we would want to be heard on any such motion.

23 JUDGE LIU: Yes. As for the totally closed session as well as

24 the voice distortion, I believe that the Prosecution or the party calling

25 the witness should inform the Chamber one day before the testimony.

Page 264

1 As for the other protective measures, we will do it on the

2 morning or a few minutes before the witness enters into the room.

3 Is that agreeable?

4 MR. MORRISSEY: Yes, Your Honour.

5 JUDGE LIU: Thank you. I see everybody is nodding.

6 As a practice in other trials, I would like to make an oral order

7 to request the Prosecutor to file all the witness statements tomorrow so

8 that we could deal with each witness in the second phase of the Pre-Trial

9 Conference, Thursday.

10 Is that agreeable to the parties?

11 MS. CHANA: Yes, Your Honour.

12 JUDGE LIU: Are you going to file in the electronic form or in

13 the written form?

14 MS. CHANA: Your Honour, it's -- it is the e-court. I suppose

15 you'd probably want them in electronic form.

16 JUDGE LIU: If you have already prepared the written forms, you

17 know, we'll be very glad to receive them.

18 MS. CHANA: If Your Honour would be glad to have the written

19 ones, we'll, of course, provide them in written form.

20 JUDGE LIU: Thank you very much.

21 Any objections, Mr. Morrissey?

22 MR. MORRISSEY: Your Honour, no, there isn't. But we just note

23 that there are some statements that would appear to be outstanding that

24 haven't been provided to anyone as yet. These are the statements from

25 witnesses Miletic, Husic, H-u-s-i-c, and Mujezinovic,

Page 265

1 M-u-j-e-z-i-n-o-v-i-c.

2 With respect to those three, each of those refers in material

3 provided to other statements which they've provided. Those have not been

4 in fact provided so that we ask that they be provided both to us and in

5 the way that Your Honour has just requested they be provided to the Court.

6 Because at the moment what we have is a witness referring to -- this is

7 the second time I have spoken and --

8 JUDGE LIU: Are you alleging that the Prosecution did not finish

9 their obligation to disclosure?

10 MR. MORRISSEY: Your Honour, there's an allegation to that effect

11 in motions already, which you don't need to have rehearsed now, unless you

12 ask me and give me permission to do. So I simply mention it now because

13 Your Honour has asked that statements be provided. And we just point out

14 that to our analysis - and we don't have the knowledge the Prosecutor has

15 as yet - there seem to be three missing, and we'd be very grateful for

16 them and we think it's an issue that will need to be addressed to comply

17 with what Your Honour has just raised.

18 JUDGE LIU: Thank you.

19 Are there any signed papers on the side of the Prosecution?

20 MS. CHANA: Yes, Your Honour. We have this morning got the

21 Mujezinovic statement that we are going to provide to the Defence. But

22 the other two, Your Honour, which is the Miletic and the Husic, we have

23 disclosed them, and the receipt numbers are 38 and 48. And the -- and

24 also the Husic statement has been disclosed, and the receipts are 33, 34,

25 35, 48, and 74.

Page 266

1 So while all the -- there's only one statement that Defence

2 counsel alludes to which we are going to now disclose, the Mujezinovic

3 statement.

4 JUDGE LIU: Thank you. But you did not tell me the reason for

5 such late disclosure yet.

6 MS. CHANA: Your Honour, this has -- this is an issue which I

7 would actually have liked to have raised with the Chamber at some other

8 time, but I can raise it now.

9 There are a lot of motions relating to disclosure and late

10 disclosure. I will just talk about this particular one statement of this

11 one witness. And the reason is, is simply it's been an oversight. We had

12 not got it before. It's only when the Defence counsel says that there

13 should be another one, we looked through our documents again and we found

14 this one statement. But all the others had been disclosed.

15 There's no other way to put it, Your Honours. It's an oversight.

16 And for which, of course, we do sincerely apologise.

17 JUDGE LIU: I hope Mr. Morrissey will accept the apology from the

18 Prosecution.

19 MR. MORRISSEY: When an assurance like that is given in court, of

20 course we accept it.

21 JUDGE LIU: But at the same time I have to warn the Prosecution

22 that you have to pay due diligence to your work in this aspect, especially

23 when we're going on to trial.

24 MR. MORRISSEY: Your Honour, I'm remind --

25 JUDGE LIU: Yes.

Page 267

1 MR. MORRISSEY: Sorry, may I have the indulgence to say one more

2 thing?

3 I am reminded that the Prosecutor have been for some time now

4 under a requirement that they seek leave to provide such material. That's

5 an order that was imposed upon them on the 15th of -- of -- sorry, 7th of

6 May of last year, and it's a reason why Your Honour will see -- well, I'm

7 about to launch into a submission. I won't. I'm sorry. I simply mention

8 what I mentioned and that will suffice.

9 JUDGE LIU: Thank you very much for reminding me of this issue,

10 and I'll look into it, certainly.

11 MS. CHANA: Your Honour.

12 JUDGE LIU: Yes.

13 MS. CHANA: With your leave, I would like to bring up this matter

14 of this issue that Defence counsel has raised, about the 7th of May order

15 given by the Trial Chamber that we have to seek leave of the Chamber for

16 anything we disclose after December -- the 15th December 2003. And this

17 also includes, Your Honour, disclosure under Rule 68.

18 Now, this has become a very onerous burden on the Prosecution

19 because inevitably we have new material which has come in and, as we all

20 know, that our document collections are huge.

21 Your Honour, the whole purpose of disclosure is for the benefit

22 of the Defence, and we would like to hand it over as quickly as we get it.

23 And there will be times when things have been overlooked. It's

24 inevitable. It happens in all the other trials here. And this has been

25 one of the cause of the prolific motions the Defence counsel have been

Page 268

1 filing and it all relates to disclosure and it is all to do with this one

2 decision that we have.

3 Your Honour, the other day we disclosed eight - I believe it was

4 eight, I'll be corrected by Defence counsel if it was seven - Rule 68

5 documents. Now, the decision also states that Defence counsel may waive

6 this requirement and receive this disclosure. But every time I've sought

7 the indulgence of the Defence to waive it and simply hand over at least

8 the Rule 68 documents, they have not agreed to waive it.

9 Now, it's clear that all disclosure is for the benefit of the

10 Defence. And I am somewhat perplexed that the Defence do not wish to

11 receive this material as quickly as possible. And they want -- they do

12 sit on their rights under this decision.

13 I think I would -- one of the -- the other issues, Your Honour, I

14 would now ask -- perhaps since there are going to be -- we're going to

15 have another conference on Thursday, perhaps Your Honours would look into

16 this matter, because I would now orally like you to vacate this particular

17 order. And in that event, it become easier -- easier management.

18 And in respect of, let's say, Celo statements, there were four

19 statements which we had not disclosed. Celo is Ramiz Delalic. He's one

20 of the -- one of our witnesses which we asked to be added to the list

21 subsequent, in our new witness list. And these four statements had

22 already been put into the EDS, electronic suite. But at that time, Ramiz

23 Delalic was not our witness, so we had not disclosed his previous

24 statements. But we -- we have the ABiH collections which came into this

25 Office after the particular date of 15th December. Therefore, those --

Page 269

1 the moment we put Mr. Delalic on the witness list, we ran the searches.

2 We found these four additional statements. We immediately informed the

3 Defence that we have these additional statements. And I said, "Can I just

4 disclose them to you and would you waive the requirement that we have to

5 do it by way of motion?" And the response has always been, "No, we have

6 to do it by way of motion."

7 The Prosecution has been courteous in providing the material

8 before on an informal basis and then doing the motion late -- later on. I

9 am not aware as to any other Trial Chamber who has issued such an order at

10 this Tribunal. This is an unprecedented order against the Prosecution.

11 And I do not think that it assists the Defence either. Disclosure is for

12 their benefit, and we are finding these documents. And I think the

13 Defence would be prejudiced if they would not want to get the disclosure

14 as quickly as possible.

15 So once again, I would ask this Trial Chamber to vacate this

16 order and in the event there's any disclosure that the Defence feels

17 particularly prejudiced by, they may raise that particular issue and we

18 will respond accordingly to anything which the Defence feel that has

19 been -- has somehow prejudiced their case or the conduct of their trial.

20 And then we would -- rather than every single disclosure we have to seek

21 the -- the leave of the Trial Chamber, we disclose to the Defence, "this

22 is my recommendation." And if they feel there is anything that prejudices

23 them, they may then ask by motion for any explanation as to -- and then

24 the Court can rule upon it.

25 JUDGE LIU: Thank you very much.

Page 270

1 Yes, Mr. Morrissey.

2 MR. MORRISSEY: Your Honour.

3 JUDGE LIU: Please be very concise.

4 MR. MORRISSEY: I will be.

5 May I direct Your Honour to the Defence response to the 20th of

6 January of this year to a Prosecution motion to add Rule 66(A) material

7 relating to the witness Ramiz Delalic, also known as Celo.

8 Your Honour will have noticed that five minutes ago I commenced

9 what I was about to launch into as a submission and did not do so, and I

10 hear Your Honour's requirement to be concise.

11 The reason why the Prosecution has been placed in the position it

12 has been and the reason why it's compelled to disclose in the way it has

13 is because the history of the disclosure practices of the Prosecution in

14 this case have been appalling. I rely on what's been filed and don't seek

15 to make a speech about it here. But when Your Honour reviews that sorry

16 history, you will see that despite orders of the Court, suggestions by the

17 judicial representative at Rule 65 ter conferences, undertakings by the

18 Prosecution that disclosure has finally finished, it never did. And

19 disclosure has continued unabated in ways unexpected and in ways which

20 have fundamentally changed the case, resulting in a series of Prosecution

21 motions in December of this year, followed by a series of motions by us in

22 January.

23 And if our submissions have any merit, they are in writing before

24 the Court, before the Chamber, and I won't seek to re-canvass them here.

25 But it's into that context that Your Honour's Chamber now comes, and it's

Page 271

1 into that context that of rules and restrictions being placed upon the

2 Prosecution as far as their discovery practice go that we now stand, and

3 it's for that reason that we've sought the protection of the Chamber in

4 the way that we have from continued disclosure. That's what this flurry

5 of motions is about: Protection. And that's all I have to say about it

6 in line with Your Honour's suggestion.

7 JUDGE LIU: Well, thank you very much.

8 There must be a reason for the Pre-Trial Chamber to render an

9 order in this respect. And I promise you, both parties, I'll look into

10 this matter and to see whether there's something I can do to facilitate

11 the proceedings of this case. Thank you.

12 And the last matter on our agenda is the agreed facts. During

13 the last Status Conference, the Pre-Trial Judge requested both parties to

14 meet and to try to come to some agreed facts.

15 I would like to know from the parties about the results.

16 Mr. Morrissey, yes.

17 MR. MORRISSEY: Your Honour, I said both yes and no earlier

18 today, and I now say it again. If we are having what I describe as

19 constructive discussions, the Defence has provided a list of -- of

20 potential agreed facts. The Prosecution has not had time to respond to

21 those, and it's not the Prosecution's fault, because I provided those very

22 lately to them, so that they're entitled some time about that to consider

23 those. The Prosecution has provided some suggestions to us. We bear in

24 mind all of our undertakings in the past. We don't here have a list of

25 agreed facts to give to the Chamber. We are meeting -- we met today. We

Page 272

1 will meet again. We have not forgotten the matter. But we do not have a

2 satisfactory answer for you on it immediately.

3 JUDGE LIU: Thank you very much. Could I turn to the

4 Prosecution.

5 MS. CHANA: That is the correct position, Your Honour. We have

6 met but -- but very briefly. I have received a document this morning

7 proposing some agreed facts by the Defence. And as Defence counsel

8 indicated, he has some agreed facts from us. And we will now endeavour --

9 I think we've been all very busy trying to prepare for this case, but I

10 think that's a very important aspect, given the guidance -- Your Honour's

11 guidance this morning about the case and perhaps we can now sit down

12 before Thursday and see if we can come up with some more arrangement.

13 JUDGE LIU: Thank you very much.

14 And the purpose for the parties to meet is to identify some

15 common ground in ending some disputes, so that the Trial Chamber will be

16 in a more clear position to hear the case so that we know such matters are

17 still in the dispute but certain matters has already, you know, exist some

18 agreements. For instance, the position of the accused that the Pre-Trial

19 Judge mentioned last time and the whereabouts of the accused during that

20 critical period. I just, you know -- you know, give some examples. But

21 if there's no agreement, I also hope that the parties will submit us with

22 something identified those differences.

23 I hope that before the next Pre-Trial Conference, that is, on

24 Thursday, we could receive a report from the parties on those issues. Is

25 that agreeable to the parties?

Page 273

1 It seems to me that everybody is nodding.

2 MS. CHANA: Yes, Your Honour.

3 JUDGE LIU: Thank you.

4 MR. MORRISSEY: Your Honour, it's -- it certainly is to the

5 agreement of the Defence. I'm just not familiar with -- with the

6 structure of such a report. And in the new e-world in which we live,

7 would Your Honour give some guidance as to whether we are allowed to use

8 paper in that report.

9 JUDGE LIU: Well, it's a practice before some other Chambers --


11 JUDGE LIU: -- that, you know, one party will propose some items

12 both in agreement or in disagreement, you know. And they identify those

13 areas and tell us what is still in dispute and what is not in dispute.

14 And some of these reports are based on the indictment. For instance, the

15 certain paragraph we have problems, you know. We have disputes on that

16 paragraph. But on certain paragraphs we have no disputes at all. For

17 instance, the background information about the accused. There's no

18 disputes -- generally speaking, no disputes. At least we could know where

19 we are in this case. We could nail down the crucial points in this case,

20 which will be facilitating the proceedings.

21 MR. MORRISSEY: We'll cooperate.

22 JUDGE LIU: I will not force anybody to any agreement that you

23 don't like to make with the other party. I have to say that very clear.

24 You may sit down, please.

25 And at this stage, are there any other matters the parties would

Page 274

1 like to mention?

2 From the Prosecution?

3 MS. CHANA: Not at this -- at this stage, Your Honour.

4 JUDGE LIU: Thank you.

5 From the Defence?

6 MR. MORRISSEY: Yes, Your Honour. There's one unusual matter

7 that I would like to raise now, and it's fortunate that it's -- that

8 perhaps it could be thought about. I haven't raised it with the

9 Prosecution either as of yet, save in passing. I think it's been

10 mentioned in casual conversation. It's the position of the accused man in

11 the courtroom.

12 Now, the normal position is that Mr. Halilovic would be seated

13 where he is, some distance away from the Defence team. Now, we would seek

14 the indulgence that he be permitted to sit with us. It's an unusual

15 submission, but there are reasons for it.

16 The first and main reason is that this being a command

17 responsibility case and at least lead counsel on the Defence side not

18 being a military person although seized of the relevant facts and

19 doctrines in the case, I hope, would benefit greatly in the efficient

20 running of the trial by the presence near at hand of Mr. Halilovic. He

21 was on any view of it a person -- well, he was a general. He's able to

22 comment directly upon the doctrines and the applicability of those

23 doctrines as the evidence arises in court.

24 True it is he can tell us - and he has already done so on many

25 indication occasions - the meaning of particular doctrines and documents,

Page 275

1 but in court evidence is going to come out viva voce and might come out in

2 a variety of ways. It would greatly assist the Defence if he were able to

3 do that.

4 In support of this, I put this: That's he's been on provisional

5 release for a long time with no blemishes, as I understand the matter. He

6 remained on provisional release. He returned to the court, to the

7 Tribunal as he was required to do. And, in short, he can be regarded as a

8 person in responsibility in respect of whose courtroom conduct you need

9 have no fear. And therefore, you could expect that he would conduct

10 himself well.

11 We are not aware of - although, we could never be aware of

12 ourselves, I admit - any security objection to this. There may be

13 protocols that we don't know about, and they're matters that would have to

14 be raised by others and not by us. But we would accommodate any seating

15 arrangements and we would accommodate security. If they felt there needed

16 to be any nearby, we would accommodate that. It's a matter of

17 significance to the Defence to have that done.

18 Of course, there is the additional matter, shared with all

19 accused, it has to be said, of the stigmatisation and so on that goes with

20 where he's positioned. But, of course, we bear in mind that the Bench

21 will not be swayed by that matter. Nevertheless, it is a humiliating

22 matter for any accused. If it can be avoided, if as a matter of

23 proportion it can be avoided, then there's no reason why it shouldn't be.

24 If there's no good reason, in short, for Mr. Halilovic to be where he is

25 now, we invite him and hope that the Court would -- would permit us to

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1 invite him to come and sit amongst us and assist us in presenting his case

2 as swiftly and efficiently has can humanly be.

3 Therefore, I make that application on the spot here in court and

4 ask that it be considered.

5 JUDGE LIU: Any response from the Prosecution side?

6 MS. CHANA: Your Honour, this is an unusual request that the

7 accused sit at a bar table. Can we please respond and take the position,

8 as my learned friend indicated, there are security issues, and this is a

9 larger policy issue. And if I can take advice on the matter and respond

10 on Thursday, please.

11 JUDGE LIU: Thank you.

12 Well, Mr. Morrissey, I believe that seating in this courtroom has

13 been arranged by the Registrar. Where the Judges sit, the Defence counsel

14 sits, and the Prosecution sits are all arranged beforehand, including your

15 client, the accused. So certainly I will convey your suggestions to the

16 attention of the Registrar to see whether there's any possibility for some

17 changes in that seating. I believe this is what I can do at this stage.

18 As you know, the Registrar is a separate section of this Tribunal.

19 MR. MORRISSEY: Your Honour, could -- could I indicate that we

20 ask no more than that. Mr. Halilovic knows well that it may cause

21 inconvenience and appreciates the risk that it's possible that this

22 request cannot be accommodated and he and we will abide the decision of

23 the Court and he -- well, we indicate our appreciation for the temperate

24 stance taken by the Prosecutor, and we are appreciative too that Your

25 Honour will consider the matter, as you've indicated, and we say no more.

Page 277

1 JUDGE LIU: Yes. Thank you very much.

2 So if there's nothing else the parties would like to raise, the

3 hearing is adjourned. And we'll continue on Thursday morning.

4 --- Whereupon the Pre-Trial Conference adjourned

5 at 3.40 p.m.