1 Monday, 13 September 2010
2 [Closed session]
18 [Open session]
19 JUDGE KWON: Yes, we are now in public session.
20 The Chamber received a motion from the accused, which is the 17th
21 motion submitted by the accused. I think this needs an urgent
22 consideration, given that the accused seeks a suspension of the
23 proceedings before the very next witness.
24 So I wonder whether we can hear from the Prosecution on this
1 MR. TIEGER: Your Honour, the Prosecution is in the process, as
2 we speak, of preparing a written response. If the Court wishes an
3 expedited response, we can do that by whatever time-period the Court
4 deems appropriate, and do that orally at some point that the Court
5 designates. You just need to say the word.
6 JUDGE KWON: If you can, could you respond orally right now, or
7 is it more convenient for you to provide us with a courtesy copy by the
8 end of this session?
9 MR. TIEGER: Well, let me consider whether an oral response -- a
10 supplemental oral response to an expedited written response is
11 preferable. I'll be in touch with the person working on the motion, the
12 response, at the moment. What I would like to do is make sure we're not
13 conveying information to the Court in a piecemeal fashion, so that
14 whatever oral response we may suggest embraces all the factors that would
15 have been captured by the proposed written response. So rather than do
16 it right now, let me engage in some communication and get back to the
17 Court during the course of this day, and appreciating the fact that the
18 Court wants as much information as quickly as possible.
19 JUDGE KWON: Thank you.
20 Given that we'll limit the time for the remaining
21 cross-examination by the accused to two hours, the Chamber is minded to
22 consider the motion during the first break of today. So if you can
23 respond orally, let us know before the end of this session.
24 MR. TIEGER: Yes, Your Honour. Thank you.
25 JUDGE KWON: Thank you, Mr. Tieger.
1 We'll go into the closed session again.
2 [Closed session] [Confidentiality partially lifted by order of Chamber]
11 Pages 6552-6587 redacted. Closed session.
5 MR. TIEGER: Yes, Your Honour.
6 As I understand the Court's concern, I imagine that the Court is
7 focused at the moment most particularly on the amount and nature of the
8 material, which I'll addressed quickly in a moment. But before I do,
9 just preliminarily I'd like to note that the reason for the period of
10 time that elapsed between receipt and disclosure was not as suggested in
11 the Defence motion, because the Prosecution was sitting on this material,
12 but because of the unique natures of this material in two ways.
13 Number 1, it was highly fragmented in the hard drive that was seized. It
14 was split into thousands of individual files, with individual pages, an
15 extremely cumbersome and time-consuming process that we're still looking
16 at to make sure we have it as right as possible. And, number 2, there
22 With respect to the nature of the material, Your Honour, I note
23 that in the Defence motion it makes reference to certain examples, and
24 the suggestion is that those are a small indication -- a small fraction
25 of the vast nature of materials of that type spread throughout the
1 collection. In fact, the Defence was provided with a highly-detailed
2 index of the materials disclosed, with specific dates and, to the extent
3 possible, indications of the source and title of the document and nature
4 of the document.
5 The example cited by the Defence come from one of the items that
6 was more generally listed because it didn't lend itself in any way to
7 more specific indications. That -- there are approximately eight items
8 like that on the list that I saw that were not specifically itemised. Of
9 those eight, only one is relatively voluminous, consisting of somewhat
10 more than 200 pages. That's the one item from which the Defence cited.
11 The other items, as I say, are both specified, encompass a wide time
12 range, including periods of time not relevant to the indictment in the
13 sense indicated by the motion, that is, either 1991, or 1996, or later,
14 or clearly involving geographic areas or specific issues that have little
15 to do with the specific upcoming witnesses coming up.
16 So I hope that that information is useful to the Court.
17 Obviously, should the Court have any additional questions, we'll be
18 pleased to respond, and we'll try to provide even more details in our
19 written response.
20 I would also add that it appears to us quite a few items would
21 have been duplicates already disclosed on the EDS because they were
22 previously in-house, but that's a determination that's much more
23 painstaking and we're still trying to assess.
24 JUDGE KWON: Mr. Robinson, do you have anything to say in reply?
25 MR. ROBINSON: Yes, Mr. President, very briefly. And thank you
1 for dealing with this matter on an urgent basis.
2 Our concern was that some documents in this collection might deal
3 with the State Hospital and that it might be necessary to recall
4 Dr. Nakas if those documents were later located, and so we wanted to at
5 least preserve our right to indicate that we need this time before he
6 testifies. So we do appreciate that you're handling it before his
7 testimony begins.
8 First of all, though, this is different than our other disclosure
9 motions that we filed before based on Rule 66(A)(ii), where the
10 Prosecution inadvertently, perhaps, or at least despite their best
11 efforts, was unable to locate documents that were in their collection.
12 This was material that came into their position, that the significance of
13 which I'm sure they realised immediately back in January of 2010. And we
14 think that they fell short of their obligations under Rule 68 by holding
15 on to this material as the trial began, as evidence started to be
16 presented, and not at least alerting the Defence and the Chamber of the
17 exculpatory nature of this material. So we think they have violated
18 Rule 68 by the manner in which they handled that.
19 Again, they are very cooperative with us, they do the best they
20 can at addressing our requests, and we appreciate that, but we feel that
21 in this instance they violated their obligations under Rule 68 by the way
22 they handled this material, which was basically to make no notification
23 of it, and until a few days before our two-week adjournment was over, to
24 give us 6.000 pages of material, and expect that everything would just go
25 merrily on, witness after witness without us having an opportunity to
1 review the material. And, as a result, we would ask the Chamber to make
2 a finding that there has been a violation of the "as soon as
3 practicable," requirement of Rule 68, and to give us some remedy. And
4 the only remedy that we can think of that would really help us at this
5 stage is to give us time to review the material so that we would be in a
6 position to use it with the upcoming witnesses.
7 Thank you.
8 JUDGE KWON: Irrespective of the conclusion the Chamber may
9 reach, I'd like to explore the possibility with the parties of continuing
10 the hearing with the second-next witness, who is -- forgive me for my
11 pronunciation - Mulaoasmanovic, who was not affected by the disclosed
12 material in question. So I would like to hear the parties of that
13 possibility first.
14 MR. ROBINSON: Mr. President, speaking for our team, I'm not sure
15 that we would be in a position to begin her cross-examination today. And
16 also she's a person who was struck by a firing at a tram in Sarajevo, and
17 I'm not sure whether any of this material would relate to military
18 targets in that area or military personnel that may have been involved in
19 transport on trams. But with that reservation, that's a possibility that
20 we could entertain.
21 The other possibility would be to go ahead with the testimony of
22 Dr. Nakas, at the understanding that he can be recalled if it turns out
23 there is material relating to the State Hospital, or perhaps the
24 Prosecution is in a position to advise us at this point whether there's
25 any material from the State Hospital that -- or in that vicinity that is
1 on that material that we have not been given access to.
2 Thank you.
3 JUDGE KWON: Thank you.
4 Is she around, Mr. Tieger or Ms. Edgerton?
5 MR. TIEGER: I believe so, Your Honour.
6 My preliminary reaction is that that could well be a workable
7 solution. If you'll forgive my caution, I would like to double-check on
8 that and see if there are any logistical or other issues that I'm not
9 aware of at the moment that might render that difficult or impossible.
10 But as I say, the preliminary indication is that that would be a workable
12 JUDGE KWON: Thank you.
13 We'll adjourn for half an hour, and we'll --
14 [Trial Chamber confers]
15 THE INTERPRETER: We can all hear you.
16 JUDGE KWON: We'll resume at 10 past 11.00.
17 --- Recess taken at 10.39 a.m.
18 --- On resuming at 11.17 a.m.
19 [Open session]
20 JUDGE KWON: We start in the open session, in the absence of the
21 witness, to give our ruling.
22 The Chamber has considered the arguments raised by the accused in
23 the 17th Motion for Finding of Disclosure Violation and for Remedial
24 Measures, as well as the oral submissions by the Prosecution and
25 Mr. Robinson, for the accused, made this morning. According to the
1 motion, the Prosecution disclosed 1.072 items, amounting to 5.740 pages,
2 to the accused on 31st August 2010 as material which, I quote, "may fall
3 within the ambit of Rule 68." This material was apparently seized by the
4 Serbian MUP during searches conducted at two apartments in Belgrade and
5 had been in the Prosecution's possession since January 2010.
6 In the motion, the accused estimates that it would take him and
7 his team a period of 12 working days to adequately review this new
8 material, and requests an immediate suspension of proceedings to enable
9 him to complete this exercise before the calling of further Prosecution
11 The Chamber will issue a decision in due course on whether or not
12 the disclosure of this material in August of this year amounts to a
13 violation of the Prosecution's obligations under Rule 68. Of more
14 immediate concern is the question of whether a suspension of the
15 proceedings is necessary to permit the accused to review it. The Chamber
16 further recalls that an adjournment of the proceedings is an exceptional
17 measure, which it will only order if convinced that it is in the
18 interests of justice to do so.
19 The Trial Chamber is satisfied that given the volume of material
20 involved, the accused will require time to conduct a detailed review of
21 these documents to determine whether they contain anything that is
22 exculpatory or otherwise important for his defence. In light of
23 Mr. Robinson's submission, the Trial Chamber is satisfied that the trial
24 proceedings can continue today, with the hearing of the evidence of
25 Bakir Nakas, and, subsequently, Alma Mulaosmanovic-Cehajic, and subject
1 to the proviso that the accused may make a later application to recall
2 them, showing good cause. However, the Chamber is convinced that it is
3 in the interests of justice to suspend the proceedings, from the end of
4 Mulaosmanovic's testimony, for a period of five days. As the parties
5 were aware, we were already scheduled not to sit on Friday of this week
6 and Monday and Tuesday of next week. We anticipate that
7 Mulaosmanovic-Cehajic's testimony will conclude by the end of tomorrow
8 and that we will, therefore, not sit on Wednesday, Thursday, or Friday of
9 this week, and we will resume on Wednesday, 22nd September.
10 That's the ruling by the Chamber, and we'll go into closed
11 session again and we'll bring in the witness.
12 MR. ROBINSON: Thank you, Mr. President.
13 Also, with respect to the session that we had about -- discussion
14 about this in closed session just prior to the recess, I would ask that
15 the Chamber allow that it be part of the public transcript from page 39,
16 line 16, until the end of that session. I don't think there was anything
17 in any of our comments that would warrant that being in closed session.
18 Thank you.
19 JUDGE KWON: I take it there's no opposition from your part,
20 Mr. Tieger.
24 (redacted) I can't think of anything else, during the course of that
25 submission, that was problematic.
1 And assuming we are in closed session now --
2 JUDGE KWON: No, we are in open session, Mr. Tieger, still in
3 open session.
4 So you are happy to lift the confidentiality of the previous
5 debate, with the redaction of that part?
6 MR. TIEGER: Yes, Your Honour, and also the redaction just of the
7 reference just made.
8 JUDGE KWON: Very well.
9 We'll go into closed session.
10 [Closed session] [Confidentiality partially lifted by order of Chamber]
11 Pages 6596-6624 redacted. Closed session.
3 MR. TIEGER: I don't think it's necessary, Your Honour.
4 JUDGE KWON: Very well, then.
5 Yes, Mr. Tieger.
6 MR. TIEGER: Thank you very much, Your Honour.
7 I wanted to raise a scheduling issue arising from the Court's
8 ruling, and I wanted to respectfully, but strongly urge the Court, in
9 addition to hearing the two witnesses specified, to also hear the
10 testimony of Mr. Thomas.
11 Mr. Thomas is a 67-year-old man who has just arrived from Canada.
12 As matters stand, under the Court's guidance, should it turn out to be
13 necessary, based on a review of the documentation, that he needs to be
14 recalled, that can happen. But now we are in a position of sending him
15 back, of ensuring that that would take place perhaps unnecessarily, when
16 it need not happen. And I would also note my information is that
17 Mr. Thomas, in any event, would not be available next week. But I think
18 in the interests of both the witness and the Court's timing, I would
19 strongly urge the Court to move forward on his testimony this week.
20 JUDGE KWON: We'll consider your request.
21 And do you have anything to respond, Mr. Robinson?
22 MR. ROBINSON: Yes, very briefly, Mr. President.
23 But can we go into open session for this? It's not necessary to
24 draw the blinds, but I think that this discussion should be held in open
1 JUDGE KWON: Unless we broadcast the witness, that should be
3 We'll go into open session briefly. And we also lift the
4 confidentiality of the last part, in which Mr. Tieger stated.
5 [Open session]
6 JUDGE KWON: Yes, now we are in open session, Mr. Robinson.
7 MR. ROBINSON: Yes. Thank you very much, Mr. President.
8 I think we would agree that it's not necessary to inconvenience a
9 witness if we have the right to recall the witness. And so if the
10 Prosecution believes that it's in the best interests of the witness to
11 give his testimony at this time, we can accommodate that, as far as we're
13 I also wanted to raise another matter with the Chamber about the
14 scheduling, and that is that Dr. Karadzic, himself, had planned, on those
15 days off, to see his family, have them -- they've scheduled a visit here.
16 He didn't see them in August because he was reading Mladic diaries and we
17 devoted that entire recess to that, and so it would be difficult to use
18 that time for the purpose of reviewing these materials, as much as we
19 appreciate the indulgence of the Chamber in giving us some time. In
20 addition, because that time had previously been scheduled to be off, we
21 scheduled a trip for our investigator to assist Dr. Subotic in viewing
22 the sites in Sarajevo, and have been making arrangements with the Bosnian
23 government to try to do that, and so our investigator wouldn't be
24 available, too. He would be the person who would be normally assisting
25 Dr. Karadzic in reviewing this material, which is all in B/C/S, and so I
1 can't be of any help to him on that. So we would ask that you consider
2 adjusting the schedule so that the five days that we have to review the
3 material commence beginning on next Wednesday, or at least don't include
4 the period of time which you had previously granted us as time off. And
5 we appreciate, again, the accommodation of the Trial Chamber, but we
6 simply wouldn't be able to get the material reviewed during the period
7 that you've suggested.
8 Thank you.
9 JUDGE KWON: We'll consider the matter and come back to you.
10 But before --
11 MR. TIEGER: Thank you, Your Honour. Just one small caveat.
12 I appreciate Mr. Robinson's remarks with respect to Mr. Thomas,
13 but I would just have to note that it wouldn't be the right to recall the
14 witness. It would be the opportunity to do so if circumstances warrant
15 it. But thank you.
16 JUDGE KWON: As I made it clear, it is so when good cause would
17 be shown.
18 We'll adjourn for half an hour and resume at five past 1.00.
19 --- Recess taken at 12.37 p.m.
20 --- On resuming at 1.08 p.m.
21 JUDGE KWON: Yes, we start in open session to discuss matters
22 raised in the last session.
23 Before that, I note that Ms. Sutherland joins us. Good
24 afternoon, Ms. Sutherland.
25 I was advised that you have something to raise, Mr. Karadzic, or
1 was it Mr. Robinson?
2 MR. ROBINSON: Yes, Mr. President. It just relates to the
3 cross-examination time for the next witness that Mr. Karadzic wanted to
4 be heard on. I don't know if it's necessary to hear him now, but at some
5 point before the next witness begins, he would like to be heard on that.
6 JUDGE KWON: I think it's high time -- it's the appropriate time
7 to hear that.
8 THE ACCUSED: [Interpretation] Thank you, Excellency.
9 Looking at the amalgamated statement by the next witness, we can
10 see that it has 96 paragraphs. The witness quite loosely and arbitrarily
11 makes some assessments which it is very easy to question if we are more
12 specific. So if the intention of the Chamber is to give any kind of
13 attention to his amalgamated statement, without authenticating medical
14 documents, and if the statement is admitted, then I need at least two
15 minutes per paragraph, plus the documents. So it is unacceptable for the
16 Defence for documents to be admitted without testing what he says in the
17 statement about the deployment of the artillery, what he saw at Hresa,
18 and some other things. And the witness here knows how much it is
19 possible to see Hresa from the Military Hospital.
20 So if the statement is to be tendered and if the paragraphs are
21 to be taken into consideration, then I would need at least two and maybe
22 three minutes per paragraph in order to be able to be specific about what
23 is in those paragraphs and what is not. So I would like you to take that
24 into account. Otherwise, we can just disregard the statement and just
25 take note or consider only what he says about the documents. Otherwise,
1 we will be in the situation that these unsubstantiated, arbitrary
2 statements counter quite serious and grounded statements by other serious
3 witnesses. Then that would really be disproportional equality of arms.
4 JUDGE KWON: Mr. Karadzic, as was informed to you earlier on, the
5 Chamber allowed you an hour to cross-examine that witness, it was based
6 upon the following factors: Of course, the length of his amalgamated
7 statement, which I remember of 35 pages, and the fact that the
8 Prosecution will use only a quarter of an hour for its
9 examination-in-chief, and, in particular, the limited scope of his
10 testimony, and also the lack of specific evidence about you and your
11 role. Moreover, you had a lengthy cross-examination of
12 Dr. Milan Mandilovic, who provided similar testimony.
13 So in light of these situations, the Chamber will not revisit the
14 time for cross-examination of -- your cross-examination of Dr. Nakas.
15 But as we indicated earlier on, it was not something which was set in
16 stone, so as long as you remain efficient and relevant in your
17 questioning. There's a possibility for you to get some addition time,
18 but it depends upon your conduct of cross-examination.
19 That said, we also, as was informed earlier on, that your
20 cross-examination of the next witness, Ms. Mulaosmanovic, should be
21 limited to one hour as well. And as for the Mr. Thomas, given the -- in
22 light of the submissions from both parties, we -- before adjourning at
23 all, we'll hear Mr. Thomas, after the two witnesses I referred to.
24 In assessing what is a reasonable time for cross-examination, the
25 Chamber has taken into account the following in relation to Mr. Thomas:
1 The range of matters addressed in the witness's amalgamated statement,
2 including the meetings with some members of the Serbian -- I beg your
3 pardon, Sarajevo Romanija Corps and the ABiH; number 2, the fact that
4 many of the documents tendered by the Prosecution as associated exhibits
5 run only to one page and are not complex; number 3, the length of his
6 testimony in Galic and Slobodan Milosevic, including the time taken in
7 both cases for cross-examination; number 4, the time the witness was in
8 Sarajevo, which is approximately nine months; and, finally, number 5, the
9 fact that many of the issues covered by this witness have been dealt with
10 by other witnesses, albeit at varyingly different time-frames; i.e.,
11 KDZ-185, Richard Mole, and van Lynden. On the basis of these factors,
12 the Chamber agreed to allow you three hours for your cross-examination of
13 this witness.
14 That said, the Chamber is -- we think all the examinations of
15 these three witnesses should be able to be concluded by the end of
16 Wednesday this week and that -- I beg your pardon. Let me consult our
18 Yes. We should be able to conclude the examination of these
19 three witnesses by the end of Wednesday's sitting. And then, as was
20 informed, we're not sitting on Thursday/Friday this week and also will
21 not be sitting on -- and then we decided not to sit during the whole week
22 next week. I hope that will give more than sufficient time to the
23 accused to review all those materials.
24 Unless there's anything further to be raised by the parties,
25 we'll go into closed session.
1 Just a second.
2 [Trial Chamber and Registrar confer]
3 JUDGE KWON: When I ordered the order to lift the confidentiality
4 of the transcript, I should have -- I should have meant to include the
5 audio/video part as well. So that will be -- that part also will be
7 Yes, we'll go into closed session.
8 MR. ROBINSON: Before we do, Mr. President, just thank you very
9 much for your ruling, and I would just ask if the Chamber would allow
10 itself and the parties to remain available on Thursday in the event that
11 Dr. Karadzic is able to convince you to give him some additional time.
12 I note particularly with Mr. Thomas, he was in Sarajevo for about
13 one year, and I don't really think, with all due respect, that there's
14 going to be any way that his cross-examination can be effectively
15 completed within three hours. And perhaps when you see what Dr. Karadzic
16 is doing, you might wish to give him some additional time. But it would
17 be helpful if everyone could keep Thursday open so that in the event you
18 do decide to give him additional time, we're able to do that without
19 inconveniencing anybody.
20 Thank you.
21 JUDGE KWON: Those two days were originally -- those were the
22 days on which we were originally planning to sit. I take it there's no
23 problem, but I encourage or require the accused to comply with the three
24 hours' limit for his cross-examination.
25 The witness is already in. We'll go into closed session.
1 [Closed session]
11 Pages 6633-6671 redacted. Closed session.
12 --- Whereupon the hearing adjourned at 3.21 p.m.,
13 to be reconvened on Tuesday, the 14th day of
14 September, 2010, at 9.00 a.m.