121015ED

Page 28814

1 (redacted)

2 (redacted)

3 (redacted)

4 [Open session]

5 JUDGE KWON: Yes, we are now in open session again.

6 The Chamber will now issue an oral ruling in relation to the

7 Prosecution submission regarding Exhibit P5684, filed on the 26th of

8 September this year.

9 By way of background, in the Prosecution's second bar table

10 motion for the admission of intercepts filed on 23rd of April of 2012,

11 the Prosecution requested the admission of 65 ter number 30037, an

12 intercept conversation between the accused and Milan Babic on the 10th of

13 June, 1991. According to the English translation that the Prosecution

14 provided at the time, the accused suggested to Babic that Ratko Mladic

15 make a statement about having "no bad intentions" in BiH. According to

16 the Prosecution submission this intercept was relevant to, inter alia,

17 "the co-ordination between leading JCE members on policies and actions

18 relating to the future of Serbs in the FRY."

19 The accused did not object to the admission of the intercept

20 other than making a general objection to it pursuant to Rule 95 of the

21 Tribunal's Rules. In the decision on Prosecution second bar table motion

22 for the admission of intercepts issued on the 25th of May, 2012, the

23 Chamber admitted the intercept as Exhibit P5684 on the ground that it was

24 relevant and of probative value pursuant to Rule 89.

25 In the Prosecution submission of 26th of September, 2012, the

Page 28815

1 Prosecution states that it has recently become aware that the English

2 translation of the intercept erroneously transcribed the name "Martic" as

3 "Mladic" and that, in fact, the B/C/S original did not refer to Mladic.

4 The Prosecution thus notes that its original basis for admission was

5 based on an erroneous understanding of the intercept, does not suggest

6 any other basis for its admission, and notes that the Chamber may wish to

7 reconsider its previous decision to admit the intercept.

8 The accused filed a response on the 28th of September, 2012,

9 thanking the Prosecution for acknowledging the error and requesting that

10 the decision to admit Exhibit P5684 be reconsidered.

11 Having reviewed the intercept again, in light of the revised

12 translation, and considered its relevance and probative value,

13 particularly in light of the fact that the intercept is dated from before

14 the commencement of the indictment period in October 1991, the Chamber

15 hereby reconsiders its decision to admit Exhibit P5684, denies admission

16 of the intercept, and instructs the Registry to mark the intercept as not

17 admitted.

18 Well, turning now to the core of Pre-Defence Conference. The

19 Chamber first wishes to discuss the Prosecution's time for

20 cross-examination.

21 On the 21st of September, 2012, the Prosecution filed its time

22 estimates for October witnesses, estimating, on average, that for these

23 witnesses it will require seven times more time than the accused intends

24 to use during the examination-in-chief. The Chamber is gravely concerned

25 about these estimates, which it finds unreasonable. Taking, for example,

Page 28816

1 the first two witnesses, Andrej Demurenko and Paul Conway for whom the

2 Prosecution respectfully estimate that it will use five and a half hours

3 and four hours, the Chamber wishes to ask the Prosecution why it needs so

4 much time for cross-examination of these two witnesses.

5 Mr. Tieger or Ms. Uertz-Retzlaff.

6 MR. TIEGER: Well, first, Your Honour, of course, let me

7 underscore that these were estimates obviously undertaken in good faith

8 but without the benefit of the ongoing experience of dealing with these

9 particular witnesses.

10 With respect to the nature of the material that would be

11 addressed during the course of the intended time, the estimation was a

12 reflection of the cross-examination material that the Prosecution

13 considered it would be useful and instructive to the Bench to have the

14 witness confronted with. At the same time, we also considered the impact

15 on the efficiency of the trial, the time estimates, and have done our

16 best to reduce, to the extent possible, the amount of time we would take

17 with each witness.

18 Nevertheless, it appears to us that the Court's guidance at the

19 outset - that is that it would monitor the nature of the

20 cross-examinations and observe what material was being brought to the

21 Court's attention, what issues the witness was being confronted with, and

22 how constructive and productive that process was to the advancement of

23 truth. We appreciate that the Court will be attending to the nature of

24 the cross-examination throughout, and certainly have no intention of

25 being redundant or of addressing issues that are marginal, but the

Page 28817

1 initial estimates were a reflection of our assessment of the material and

2 issues we considered should properly be discussed with these particular

3 witnesses.

4 Again, I appreciate, for example, that the estimate of time for

5 the first witness is quite long. That's one, I hope, will be

6 considerably reduced. But that depends on a variety of factors,

7 including the responses of the witness to material and the ease with

8 which that material can be grasped by the parties and the Court in the

9 process of the presentation.

10 So we take on board the Court's concern. We certainly had no

11 intention of exploiting the cross-examination process beyond its intended

12 purposes, but it happened that with these first two witness, for example,

13 the nature of the witness and the materials available, led to those

14 particular estimates.

15 JUDGE KWON: Yes, Ms. Uertz-Retzlaff.

16 MS. UERTZ-RETZLAFF: Let me add one point. You have seen that we

17 have in relation to the first witness an almost 100-page amalgamated

18 statement and that shows how many topics this witness will address and

19 that we, of course, have then to deal with.

20 JUDGE KWON: Thank you. Are you in the position to tell us the

21 specific number you have reached in relation to those two witnesses in

22 terms of the cross-examination -- the amount of time for your

23 cross-examination, having so reviewed?

24 MR. TIEGER: I would say no, Mr. President, for a couple of

25 reasons.

Page 28818

1 Number one and without foreshadowing the nature of the

2 examination, or the witness's response, I think it's fair to say that my

3 review -- our review of the responses given by the witness in the first

4 case was that the witness did not necessarily respond directly. In fact,

5 that was a direct criticism by the Trial Chamber in the previous case

6 about this witness. So that -- should the responses be more forthcoming

7 and more direct, the timing would presumably be less. So I would like to

8 see that examination come in, for example, within about three hours, but

9 I'm concerned, extremely concerned that by proffering such a figure in

10 the abstract to the Court, that the witness will be advantaged by a

11 time-limit that is -- gives that witness an opportunity to prevent the

12 Prosecution from getting into a number of the topics it should discuss

13 through the provision of evasive answers.

14 So -- no, I -- I would be remiss if I said to the Court because

15 we have identified the specific topics we wish to address and, I might

16 add, eliminated some topics that we had intended to cover but in the

17 interest of efficiency have decided to abandon, that we could then

18 predict with complete accuracy how much time would be consumed by the

19 cross-examination. I believe that the Court will be able to see as we

20 advance through the process of this examination that the Prosecution is

21 dealing directly with subjects raised by the witness, subjects that are

22 critical to that witness's evidence and to the case itself, and that the

23 Prosecution effort in dealing with those topics is sincere, focussed, and

24 efficient.

25 MS. UERTZ-RETZLAFF: Sorry, Your Honour --

Page 28819

1 JUDGE KWON: [Overlapping speakers]

2 MS. UERTZ-RETZLAFF: -- that I also have to again stand up.

3 In relation to the witness Conway, Ms. West will take this

4 witness. Informed us just now that now that she has been able to see all

5 the materials that the Defence will use with this witness and after

6 preparing herself, she will need less than two hours for Mr. Conway. And

7 that -- that reminds me of a problem that we have raised before. We have

8 very often insufficient witness summaries and we very often do not have

9 statements. Therefore, we -- we do not really -- we have no good basis

10 to estimate the cross-examination time needed. We can only base it on

11 the little material that we have in front of us from our own house.

12 JUDGE KWON: Just a second. I'm sorry to stop you. But why

13 don't we stop there.

14 In case of Mr. Conway, have we now received his statement

15 already? Which is rather short.

16 MS. UERTZ-RETZLAFF: I think yes, Your Honour.

17 JUDGE KWON: So in light of the volume of Mr. Demurenko's

18 statement, I can understand that the Prosecution may need some

19 substantial hours for its cross-examination. But given that Mr. Conway's

20 statement is only of four pages, I found it a bit difficult to understand

21 why the Prosecution would need four hours.

22 MS. UERTZ-RETZLAFF: Your Honours, Ms. West has not yet met

23 Mr. Conway and she believes that after having talked to him she can

24 shorten it much more even, but at the moment it's very hard to say. And

25 I think the Judges should give us some leeway for the first witnesses

Page 28820

1 because we also have not yet had that experience here with Defence

2 witnesses in this particular case and therefore, as Mr. Tieger said, we

3 will be probably much, much shorter, but at the moment it's very hard to

4 say.

5 JUDGE KWON: Thank you. Very well. The Chamber finds it

6 important now to remind the Prosecution, as it remind the accused during

7 the Prosecution case, that accurate time estimate for cross-examination

8 are absolutely essential in terms of planning and scheduling with

9 witnesses. So could you bear that in mind in the future.

10 As noted by Mr. Tieger, in line with its position in relation to

11 the accused's cross-examinations during the Prosecution case, the Chamber

12 will at this stage not impose time-limits on the Prosecution's

13 cross-examinations. However, the Chamber wishes to make it very clear

14 that it will exercise close scrutiny and restrict the Prosecution's time

15 for cross-examination if that becomes necessary as was the case with the

16 accused's cross-examination of Prosecution witnesses.

17 The Chamber also notes that, while the Prosecution may make use

18 of Rule 90(H) during the Defence case, it must limit itself to a

19 reasonable exercise of that rule.

20 Does the Prosecution have anything to add?

21 MR. TIEGER: No, Mr. President.

22 JUDGE KWON: Thank you.

23 Turning now to Rule 92 ter notifications. As we sit here today

24 there are still some witnesses for this week for whom notification have

25 not been filed. We are extremely concerned that this practice will

Page 28821

1 continue, and that neither the Chamber nor the Prosecution will be able

2 to prepare for the witnesses' testimonies, which, of course, will have a

3 negative impact on the expeditious conduct of trial.

4 In fact, Mr. Karadzic, this is -- this is exactly the type of

5 delay you complained about during the Prosecution case and for which you

6 sought the appropriate relief from the Chamber. The Chamber does not

7 understand why such notifications cannot be filed in a timely manner. As

8 soon as a statement has been prepared after an interview with the witness

9 who has reviewed it, the accused should be in a position to file a

10 notification indicating, among other things, the associated exhibits he

11 is tendering for admission. If minor corrections are then made, and --

12 to the statement during proofing, the accused can implement them and

13 submit in a revised statement, indicating the changes that have been

14 made. Most often than not, there would not, or should not, be any

15 changes made to the documents sought for admission.

16 So Mr. Karadzic, or Mr. Robinson, would you wish to comment on

17 this.

18 MR. ROBINSON: Yes, Mr. President. We have been trying to

19 operate on the same principals that the Prosecution had operated with

20 during their case to the extent that it's possible for us to do that, and

21 that's why we believed that the 92 ter notification must be filed 48

22 hours before the witness commences their testimony. And that rule has

23 been complied with so far and will be complied with throughout the

24 proceedings. We filed this morning and sent e-mails last night for all

25 of the witnesses for this week, and so we have complied with the 48-hour

Page 28822

1 notification for these witnesses.

2 But if -- the problem is how to make Dr. Karadzic's contribution

3 to these proceedings significant given that he's representing himself.

4 He doesn't have the ability like the Prosecution did to have to its

5 lawyers go out and meet the witnesses well in advance of their statement

6 or their amalgamated statement or to conduct interviews with them in the

7 field, recorded interviews which were sometimes used as the basis for the

8 92 ter statement, so all he can do is take the result of his

9 investigators, many of whom -- or almost all of whom didn't even work for

10 our team during the Prosecution's case, and then add to those -- that

11 result from his own knowledge of the events and his own knowledge of the

12 evidence that the Prosecution brought during its case, then coming up

13 with a final statement.

14 Now for all of these witnesses, their actual statements, the

15 draft statements taken by the investigators, have been available to the

16 Chamber and to the Prosecution for several weeks, and the Chamber and the

17 Prosecution can look at that statement and can see which documents are

18 referred to in the statement and can be sure that those documents are

19 going to be the associated exhibits that are going to be offered with the

20 witness's statement in addition to any that Dr. Karadzic may come up with

21 during his meeting with the witness.

22 So we think it's a better practice and one that's consistent with

23 the way you allowed the Prosecution to operate to file these 48 hours in

24 advance while giving the Chamber and the Prosecution as much opportunity

25 to see the draft statement as possible.

Page 28823

1 Now if the Chamber wants us to put the draft statement and list

2 associated exhibits and operate that way, we can do that, but we would

3 like to reserve the right to add a revised 92 ter packages for any

4 witness for whom Dr. Karadzic feels that he has not included everything

5 that he wanted to present within that witness's testimony.

6 JUDGE KWON: If my memory is correct, I think that that has been

7 the practice. Did the Prosecution did not file the list of associated

8 exhibits at the time of filing draft statements?

9 Mr. Tieger.

10 I don't think the Chamber received the list of associated

11 exhibits only 48 hours before the testimony.

12 MS. UERTZ-RETZLAFF: No, Your Honours. You -- everybody,

13 actually, all parties and, of course, you, Your Honours, you received the

14 list of associated exhibits in the 92 ter filing, and that is --

15 basically it was one week, two weeks, or even longer in advance. And you

16 also, of course, had the -- the monthly list of witnesses where also the

17 associated exhibits the witness would address were mentioned. So it was

18 definitely not 48 hours.

19 MR. ROBINSON: Mr. President, we also have included in our

20 monthly list all the exhibits that the witness is going to mention. But

21 the rule was for 48 hours. You can look back at your own guide-lines and

22 verify that. It's true that the Prosecution endeavoured to provide that

23 earlier, but there were occasions when we received 92 ter packages 48

24 hours before and we have been operating under the idea that we would play

25 by those same rules.

Page 28824

1 MS. UERTZ-RETZLAFF: Your Honours, let me add to this.

2 We have looked into some statistics - and I don't want to bother

3 you with all the details, but currently there are 312 witnesses for which

4 we do not have an adequate 65 ter summary nor any statement. And that's

5 quite a huge number. And when we look at the associated exhibits that

6 the witnesses address in the statements, the ones we have, we also have

7 the same problem. We have 78 exhibits the witnesses for which we have

8 statements speak about are not uploaded. And there is no reason why they

9 are not uploaded because the witnesses, when -- when -- when the Defence

10 had these witnesses they had the associated exhibits but still we only

11 got the statements uploaded. So there is a big disadvantage and that's

12 not only for witnesses that come next year. It's actually also for

13 witnesses that come this year. In fact, even for witnesses that are

14 coming this week we have several exhibits not uploaded. I think that's

15 really unfair, I would say.

16 JUDGE KWON: Mr. Robinson, it is imperative on the Chamber to

17 know in advance what kind of documents the Defence is going to tender.

18 I'm confident that during the Prosecution case we always had at least a

19 statement the Chamber could base itself on and the Chamber knew in

20 general the documents that were going to be sought for admission by the

21 Prosecution. And one problem I can think of right now is that Chamber

22 cannot refer to the documents because the documents we referred to don't

23 have 65 ter numbers in the statement. Often the Defence was referring to

24 only by ERN and the Chamber has difficulty to find -- in finding those

25 documents.

Page 28825

1 Yes, Mr. Robinson.

2 MR. ROBINSON: Yes, Mr. President. I -- we have endeavoured to

3 refer to the statement -- to the documents by 1D number whenever

4 possible. So there may be somewhere the investigator didn't have that.

5 But we have actually -- our practice has been to give the investigators

6 1D numbers in advance to put to those documents and to make sure that

7 when the documents are referred to in a statement, they're referred to by

8 the 1D number. If there are some that that wasn't done that way we

9 apologise. But that's the way we've been trying to do it, and I think

10 you'll see the vast majority of documents referred to in our witness

11 statements have reference to the 1D number.

12 Secondly, you have the statements in e-court long before the --

13 the witness comes, and I don't understand why the Chamber can't look at

14 that statement and see from the face of it the associated exhibits that

15 we're going to be using. But even if you couldn't do that, you can see

16 from the monthly list that we file on the 20th of the month before all of

17 the 1D numbers that we're going to use as associated exhibits. So you

18 have all that information.

19 [Trial Chamber confers]

20 THE ACCUSED: Excellencies, before you maybe --

21 JUDGE KWON: Yes, Mr. Karadzic.

22 THE ACCUSED: -- making some decision, I would just like to add

23 that certainly it is not the intention of the Defence to delay or to make

24 any obstacle, but with all respect, if I got the 1st March to start I

25 would do much better and much more.

Page 28826

1 JUDGE KWON: Very well. The Chamber hereby orders the Defence to

2 file the list of associated exhibit at the time of filing your draft

3 statement.

4 In relation to this issue, the Chamber wishes to warn the accused

5 that in the event he does not follow these instructions, witnesses whose

6 Rule 92 ter notifications are not filed in a timely manner may be ordered

7 to testify viva voce.

8 Well, turning now to requests for protective measures for Defence

9 witnesses in relation to which the Chamber has already issued a recent

10 order and an addendum, reminding the accused that he should file

11 substantiated and timely written submissions to allow the Chamber to

12 rule on the said request for protective measures well ahead of the

13 witness's testimony and ahead of witness's arrival to The Hague.

14 The Chamber wishes to make -- to take this opportunity to

15 reiterate once again that it is simply unacceptable, unless warranted by

16 exceptional and unforeseen circumstances, for the witness to request

17 protective measures orally in court immediately before their testimony or

18 for the accused to file his request for protective measures a few days

19 before the witness's testimony.

20 Considering that Rule 126 bis allows for a 14-day response

21 deadline and that the Chamber needs to issue a decision on the request

22 for protective measures before the arrival of the witnesses in The Hague,

23 the substantiated written submissions required from the accused should be

24 filed no later than four weeks before the expected testimony of the said

25 witness.

Page 28827

1 In relation to the accused's request made in the recent motions

2 for protective measures that in the event protection is granted the

3 Chamber's decision be postponed until or take effect as of the

4 commencement of the witness's testimony, the Chamber recalls its ruling

5 in the decision on motion for protective measures for Witness KW456

6 issued on the 12th of October, 2012, wherein the Chamber categorically

7 dismissed this request. If the Chamber deems that the protective

8 measures sought are necessary to safe-guard the security of the witness,

9 then the witness should enjoy the full regime of the protection put in

10 place by the various sections of the Registry for protected witnesses

11 upon travelling to The Hague. To decide otherwise would render the

12 measures ineffective.

13 Do the parties have anything to add?

14 Thank you.

15 Before we end, the Chamber wishes to make one final point

16 relating to the various issues raised during this conference.

17 So this is to you, Mr. Karadzic. We are at this point very

18 concerned that you and your legal team appear to be openly disregarding

19 all the rules and practices established and followed during the

20 Prosecution case. As a self-represented accused, Mr. Karadzic, you've

21 been an active participant in this trial for over two years now and you

22 should know by now how to file a motion for protective measures or a

23 Rule 92 ter notification or to respect deadlines imposed by the Chamber

24 in terms of filing 92 quater motions.

25 Accordingly, the Chamber expects much more from you, as it does

Page 28828

1 from the large team of experienced lawyers and advisors working for you.

2 You and your Defence team must know that the Chamber would not apply

3 different rules and practices to your Defence case.

4 Now, there's another matter I wish to raise with the parties.

5 THE ACCUSED: [Interpretation] May I respond to what you have

6 said, Your Honour.

7 JUDGE KWON: Yes. I didn't put a pause between the

8 interpretation.

9 Yes, Mr. Karadzic.

10 THE ACCUSED: [Interpretation] With regard to this issue, there is

11 no equality of arms. As far as Krnojelac is concerned, I was surprised

12 to hear that he had passed away. I hadn't been provided with such

13 information. We are doing the best we can. But we can now really see

14 that there is no equality of arms between the Defence and the

15 Prosecution.

16 JUDGE KWON: Mr. Karadzic, no. You didn't attempt to explain why

17 the Defence was not comply with the deadline.

18 MR. ROBINSON: Excuse me, Mr. President. In looking at the

19 filing that we made for the Krnojelac 92 ter quater, I see that one page

20 of the filing was missing. There's a second page. You can see from the

21 word count there's a -- there's a -- one page missing in which we did in

22 fact explain to the Trial Chamber why we didn't make that motion by the

23 27th of August and we asked for permission to file it late because of

24 that explanation, but unfortunately somewhere between the prison and the

25 Registry that page disappeared. So we'll refile that, but there was an

Page 28829

1 attempt to explain to the Chamber why we were filing late and there was

2 also request for your permission to entertain it at a late time. But

3 unfortunately that page was not included in what was filed, so we'll

4 rectify that and you can take a look at that.

5 JUDGE KWON: Thank you. With respect to inequality you referred

6 to, Mr. Karadzic, the Chamber addressed the issue several times, if my

7 memory is correct.

8 Now, the next issue is related to Prosecution's interview of

9 Defence witnesses.

10 A few weeks ago, the Chamber was informed that the Prosecution

11 wished to interview certain Defence witnesses prior to their testimony.

12 Questions ensued as to which procedure to put in place for the

13 Prosecution to set up these interviews, in particular, whether or not to

14 follow the Chamber's decision issued on the 15th of July, 2009, in

15 relation to Defence interviews of Prosecution witnesses.

16 The Chamber wishes to hear the parties on this issue.

17 Yes, Mr. Tieger.

18 MR. TIEGER: Thank you, Mr. President, for this opportunity.

19 This is in the Prosecution's submission a matter that should not

20 be before the Chamber and certainly should not turn on the very unique

21 and frankly unnecessary process initiated by the accused during the

22 course of the Prosecution case.

23 So let me -- before I remind the Court how that process came to

24 be, let me reiterate that the practice in this institution - and verified

25 by various Trial Chambers in the jurisprudence - is that there's no

Page 28830

1 property interest in a witness and certainly the Prosecution in other

2 cases and throughout the course of this institution has been free to

3 contact witnesses with the proviso that it collegially advise the Defence

4 that it was doing so.

5 Now, what the -- the Defence wants to impose here is a regime

6 that it introduced for a particular purpose, and the backdrop is simply

7 this: The accused sought contact details regarding witnesses from the

8 Prosecution at the very early part of the case. The Prosecution said

9 because that information was confidential it did not wish to turn it over

10 without asking witnesses if they were willing to have their contact

11 details provided to the Defence. The Defence then said well, we don't

12 want the Prosecution to contact those witnesses. We ask that VWS do so.

13 We advised the Chamber that we did not consider that necessary and that

14 the Prosecution had no intention of skewing the witnesses decision, but

15 in any event we didn't consider in that particular instances that making

16 an issue of who the messenger was to be an obstacle, and so we agreed

17 that it -- that VWS could contact the witnesses to see if they agreed to

18 provide the accused with the contact details.

19 The accused then asked for his own reasons, and the reasons he

20 provided were that he did not ever want to be accused of unduly

21 influencing witnesses. He asked VWS then to make the arrangements with

22 the witness for the interview. That was not a Prosecution request. I

23 would also reiterate that when we first contacted the accused and said --

24 or first responded to the accused's request and said that we would want

25 to ensure that witnesses agreed to have their contact details provided,

Page 28831

1 that we also indicated to him that there was no property interest in a

2 witness, and that if he would be contacting witnesses for whom he already

3 had details, we just ask that he identify himself appropriately. We thus

4 acknowledge that the accused could contact witnesses individually. He

5 chose not to for his own reasons.

6 Now, oddly enough that -- and apparently he did so based on what

7 he said, because he was concerned of the risk that witnesses might be

8 intimidated and accusations might arise in that. That risk does not --

9 we don't consider that to be a risk on our part. We will not be engaged

10 in any inappropriate contact with witnesses. We will do what has been

11 done throughout the course of this institution.

12 So, as a turns out, a process initiated by the accused for his

13 own purposes is now being used or attempted to be used to prevent the

14 Prosecution from engaging in its right to contact witnesses. And let me

15 add that this is not simply a matter of principle, it's a practical

16 concern. This is not something that VWS wants to handle. They are not

17 in a position to respond, as they've made clear repeatedly, to the

18 numerous questions that witnesses having concerning scheduling and

19 purpose and subjects and so on. It will have a very detrimental impact

20 on the Prosecution's ability to contact witnesses. And I want to remind

21 the Court this occurs in the context, and we'll raise this point in a

22 minute, of the failure by the accused to provide us with virtually any

23 information for the vast majority of witnesses about what they'll be

24 testifying to.

25 So now he's asking not only to fail to comply with

Page 28832

1 Rule 65 ter (G) and provide the Prosecution with the notice of what the

2 witnesses will testify about, the -- a summary of the facts on which

3 they'll testify or a statement, but also wants to prevent the Prosecution

4 from being able to talk to those witnesses itself. That's inappropriate,

5 there's no basis for it, and so we intend - barring any decision by the

6 Chamber to the contrary - to proceed as we have in the past, and that is

7 to contact Defence witnesses.

8 JUDGE KWON: Yes, Mr. Robinson.

9 MR. ROBINSON: Yes, Mr. President. We feel it's very important

10 that the same regime that applied to us be applied to the Prosecution and

11 we say that for a number of reasons.

12 First of all, it worked well to have the victim and witness unit,

13 a neutral party, contact the witness and simply ask them two questions:

14 Do you consent to meet with the representative of the Prosecution; and

15 secondly, if so, would you like a representative of the Prosecution to be

16 present.

17 So it -- that was a very neutral way of approaching a witness and

18 it didn't cause any problems in the whole case. We're concerned because

19 many of our witnesses are themselves either at some point been suspects

20 by the OTP or they're concerned about prosecution by the state court in

21 Bosnia, and if the first contact that they have is from the Prosecution

22 asking for them to be interviewed, we're concerned that it may make them

23 reticent and to come and testify and participate in this process, and so

24 we believe that the Prosecution should have to have the same regime that

25 we had.

Page 28833

1 Secondly, when the WVS contacts a witness and they are willing to

2 meet with the Prosecution without a representative of the Defence being

3 present, then the Prosecution is free to go ahead and interview them at

4 any time and any place they want. If the -- a witnesses wants a

5 representative of the Defence to be present, then, like we did, those

6 interviews should take place in The Hague where we're able to actually

7 have somebody be present at those interviews.

8 So we think that the regime that was in place was fair and that

9 it would be unfair now to let the Prosecution loose among our witnesses

10 without those same safe-guards.

11 Thank you.

12 JUDGE KWON: What would be your basis upon which the Chamber

13 could prohibit the Prosecution from contacting the Defence witness about

14 whom the Prosecution knows the contact details in -- already?

15 MR. ROBINSON: Well, the Trial Chamber has the power to establish

16 a regime for contact by one party with the other party's witness, and

17 that's -- many Trial Chambers have established various regimes in that

18 connection. So you have the power under Rule 54 to regulate that, and we

19 believe that you exercised that power during the Prosecution case. We

20 would never have contacted a Prosecution witness with that regime in

21 place in the belief that that would be okay to do that. So we had the

22 expectation that was part of the -- I believe it was the pre-trial

23 Chamber that made an order to that effect and put this regime in place

24 and we obeyed that order during the Prosecution's case. So you have the

25 same power to make that order for the Prosecution.

Page 28834

1 JUDGE KWON: Yes, Mr. Tieger.

2 MR. TIEGER: Mr. President, that is not an accurate

3 representation concerning the backdrop to this request by the -- by the

4 Defence. The -- the -- the Trial Chamber did not put this regime in

5 place. This was simply a ratification of the request made by the Defence

6 for its own reasons in that particular circumstance. To make matters

7 worse, the Prosecution said throughout and from the -- from the outset,

8 that it recognised the Defence right to contact witnesses for whom it had

9 details if it so wished, and in fact Mr. Karadzic explicitly excluded

10 from his request at one point those witnesses whom he'd already

11 contacted, indicating that it was not necessary.

12 So to suggest that the fact that this VWS conduit system existed

13 was a reflection of an order by the Pre-Trial Chamber with the

14 expectation that that was the appropriate regime to be followed by all

15 parties is very misleading. All that happened was that the accused made

16 a particular request, not wanting the Prosecution to ask the witnesses

17 for their contact details. We agreed that under those circumstances it

18 would be okay if VWS made the initial request, and then the accused

19 broadened that by asking VWS to make his arrangements for him. This is

20 in no way, shape, or form the establishment of a regime by the Pre-Trial

21 Chamber. The question the Court asked is what's the basis for a request

22 by the Prosecution, not what power does the Trial Chamber have to

23 regulate its own proceedings. No basis has been articulated. The

24 Defence continues to rely on this erroneous claim about the system that

25 existed before. And, in fact, the system that has existed throughout the

Page 28835

1 course of this institution, that there's no property interest in a

2 witness, and that certainly the Prosecution is free to contact witnesses,

3 Prosecution or Defence, for whom it has contact details, should continue.

4 JUDGE KWON: Just to check one thing, Mr. Robinson. This is

5 today's transcript of what Mr. Tieger said earlier on, the transcript

6 page 19, lines 22 and on, 24. In line 24:

7 "The accused sought contact details regarding witnesses from the

8 Prosecution at the very early part of the case. The Prosecution said

9 because that information was confidential, it did not wish to turn it

10 over without asking witnesses if they are willing to have their contact

11 details provided to the Defence. The Defence then said, well, we don't

12 want the Prosecution to contact those witnesses. We ask that VWS do so."

13 Do you challenge that statement?

14 MR. ROBINSON: I think -- not really. I mean, essentially the

15 Prosecution said that they would contact the witnesses themselves and see

16 if they're willing to share their contact details with us. And at that

17 stage we said we don't want the Prosecutor asking the witness basically

18 whether they'll consent to a Defence interview. We want some neutral

19 party doing that. So that is very correct. That's exactly the way it

20 was.

21 JUDGE KWON: And the Chamber never prohibited the Defence from

22 contacting the Prosecution witnesses if they had the contact details of

23 those witnesses.

24 MR. ROBINSON: Well, we weren't prohibited from that until we

25 agreed upon a regime in which the VWS would do it and then that was

Page 28836

1 embodied in an order by the Pre-Trial Chamber.

2 JUDGE KWON: Very well. On a just hypothetical note, if the --

3 the practice adopted during the Prosecution case were to be continued, do

4 parties have an agreement what role should be played by the VWS?

5 MR. ROBINSON: I believe so. Because we would expect that the

6 same exact questions that they asked of the Prosecution witnesses be

7 asked of the Defence witnesses.

8 I'd also like to add, Mr. President, that we encourage the

9 Defence witnesses to meet with the Prosecution. We believe that we

10 benefitted greatly from the witnesses who we talked to during the

11 Prosecution's case, and we're happy to have the witness's - our

12 witnesses - meet with the Prosecution, but we really think it would be

13 disruptive and possibly result in the loss of some witnesses for us if

14 the first contact was made by the Prosecution.

15 So if you don't want WVS to be involved, then we would ask that

16 you let us make the initial contact with the witness like the Prosecution

17 wanted to do in the Prosecution case, but we don't think that that's the

18 best solution. But as an alternative, rather than the witness first

19 hearing from the Prosecution, we would like to see if they're willing to

20 share their contact details with the Prosecution just as they proposed

21 for their witnesses.

22 Thank you.

23 JUDGE KWON: Just a second. One point, Mr. Tieger.

24 In your earlier submission, and today you stated that the Defence

25 would encourage Defence witnesses to meet with the Prosecution, are you

Page 28837

1 happy with the VWS conveying that message to the witness?

2 MR. ROBINSON: No. We would prefer that the -- that the

3 circumstances be exactly the same. The Prosecution never -- didn't

4 convey that to their witnesses, the Prosecution's -- the message was

5 given to Prosecution witnesses. We think it ought to be the same. But

6 if we're asked by any witness, we'll encourage them to agree to meet with

7 the Prosecution.

8 JUDGE KWON: Yes, Mr. Tieger.

9 MR. TIEGER: Mr. President, first of all, there's the risk, of

10 course, of mixing apples and oranges here. The last part of the

11 discussion seemed to concern the potential role of VWS or the Defence in

12 the event that the Prosecution sought contact details about witnesses for

13 whom it did not have information. And, of course, this discussion has

14 been principally heretofore about witnesses for whom the Prosecution had

15 such information and intended to simply contact including, I might add,

16 witnesses with whom the Prosecution has had contact with over the years

17 rendering this whole -- kind of a highlighting in certain respects how

18 inapposite and inappropriate the Defence position is.

19 So we're certainly prepared to discuss the procedure if we -- if

20 the Prosecution requires the assistance of the Defence in order to obtain

21 contact details for the witness, in order to make contact with the

22 witness. But as we told Dr. Karadzic from the outset, and as he

23 confirmed in his own comment to us that his request did not include those

24 witnesses with whom he had already had contact because he didn't need our

25 assistance in getting contact details, this -- the procedure that was put

Page 28838

1 in place should have nothing to do with the Prosecution's right to be

2 able to contact witnesses with whom it's had contact with over the years

3 or for whom it otherwise can reach without the assistance of the Defence.

4 We're happy to alert the Defence to the fact that we intend to do so, but

5 as has been -- in a manner that has been done in previous cases, but this

6 is a very -- this would represent an intrusion on the rights of the

7 Prosecution that has not existed before, and it would be a very

8 unfortunate step in this institution.

9 So, again, I'm just trying to highlight the distinction between

10 seeking the assistance of the Defence for contact details and those

11 circumstances where no such assistance is necessary and the Prosecution

12 wishes to and should be able to simply move forward and contact those

13 witnesses.

14 MR. ROBINSON: Excuse me, Mr. President, if I could just add one

15 thing and that is that --

16 JUDGE KWON: Just a second.

17 Yes, Mr. Robinson.

18 MR. ROBINSON: There's a very unequal access to contact details

19 among witnesses because the Prosecution has the benefit of all of the

20 services of Bosnia and Republika Srpska to provide them with contact

21 details of a witness whereby we don't have those. So we don't think it's

22 an equal playing field as to determine how a witness should be contacted,

23 whether -- which party has access to their contact details. So we would

24 really prefer the same regime and WVS do the job.

25 Thank you.

Page 28839

1 JUDGE KWON: The Chamber will consider the issue and issue its

2 instruction in due course.

3 By the way, before we end, let me come back to the issue of Rule

4 92 ter notification.

5 I was a bit surprised to hear from Ms. Uertz-Retzlaff that there

6 are about 300 witnesses for whom there were no statements and for whom

7 the 65 ter summaries were not useful.

8 So it's difficult to see how this is going to be resolved in due

9 time. Maybe the 65 ter witness list should be further revised, if there

10 are some witnesses that Defence team already knows it won't be calling.

11 Mr. Robinson.

12 MR. ROBINSON: Well, Mr. President, actually we are in the

13 process of trying to see -- to give the Prosecution actually what we

14 considered a list of most likely witnesses and those witnesses that are

15 not likely to be called. Whenever we find out that we're not going to

16 call someone, we definitely notify the Prosecution and have done that

17 already, but the number of witnesses that we actually call will depend in

18 large part on the number of hours that are finally determined that we'll

19 have for our case, and so we're not in a position to actually drop many

20 witnesses other than those that we contact for whom either they don't

21 want to come or we decide their information isn't significant.

22 So we're not really in a position to drop witnesses, but we hope

23 to be giving the Prosecution a list of those witnesses that are most

24 likely to be called.

25 With respect to the summaries, Mr. President, we -- I think it

Page 28840

1 might be better than -- rather than tossing out numbers, if the

2 Prosecution specifies which summaries they believe are inadequate we can

3 take a look at that. If we agree with them, we can deal with that. If

4 we don't agree, then maybe the Chamber will have to deal with that. But

5 we think that the summaries are adequate in almost -- in most cases.

6 There may be some that are not sufficiently specific, but if you look at

7 our filing and compare it to the filings of other Defence teams, we think

8 that we did a pretty good job of that.

9 JUDGE KWON: What summaries are we referring to? The summary you

10 filed at time of filing notification or the summaries in the 65 ter list?

11 MR. ROBINSON: In the 65 ter list.

12 JUDGE KWON: Yes.

13 Yes, Mr. Tieger.

14 MR. TIEGER: Well, I'm glad this issue is joined now, because

15 this is an extremely significant problem. We've already discussed one

16 aspect of the notice problem presented by the belated filing of the

17 92 ter submissions. That's just part of the broader notice regime

18 envisioned by the Rules, the first part of which is the provision of

19 adequate summaries on the facts on which the witnesses will testify.

20 Now we haven't provided Mr. Robinson with the specific witnesses

21 for whom the summaries are inadequate because they are so voluminous.

22 Instead, we engaged in discussions with Mr. Robinson as we indicated we

23 would at the last Status Conference. So we advised the Chamber about

24 this problem last time, indicated that we were trying to be as

25 accommodating as possible and would not insist on an immediate order by

Page 28841

1 the Court, and sought to reach some solution with Mr. Robinson. Now it

2 may be instructive if I just give you a quick snap-shot of the nature of

3 this problem.

4 We've got a vast number of topical references, things along the

5 lines of for key Srebrenica figures including brigade commanders and

6 chiefs of security, MUP commanders, a summary that says the witness will

7 testify -- the witnesses will testify about their roles and activities

8 regarding the take-over of Srebrenica and its aftermath. A patently --

9 simply a reference to the component about which the witness will testify

10 and nothing more. Similarly, we have nearly 90 separate

11 municipality-related witnesses who are expected to "explain why some

12 Muslims preferred to leave the municipality." We also see cut and paste

13 topical summaries where simply the name of the municipality or the name

14 of the witness is substituted in the same sweeping generalisation, purely

15 topical and not factual it appears.

16 And you've heard some of the numbers from Ms. Uertz-Retzlaff.

17 That's compounded by the fact that other summaries, a large number of

18 other summaries in the remaining witnesses are inadequate, but we

19 expected that we could glean some insight into the facts about which the

20 witness will testify because the witness had previously testified.

21 Nevertheless, as we told -- as we indicated to the Court last time and as

22 we told the accused, we can only do so if we have a representation from

23 the accused that the witness will testify to the facts reflected in those

24 pre-existing testimonies or statements and nothing more. Otherwise,

25 we're still operating in the dark and have no idea what the witness will

Page 28842

1 testify to.

2 Now, we reached no accord with the accused on this matter. We

3 are told that even months into next year, the Prosecution cannot expect

4 either statements of -- and we -- again, we didn't want to stand on

5 ceremony. We indicated we didn't expect -- we were willing that the

6 Defence not have to do work twice, that they could provide us with

7 statements instead of taking statements and then making lengthy

8 summaries, but we needed one or the other. But we're told that, as I

9 say, even months into next year we cannot expect the summaries or the

10 statements to be completed and for Rule 65 (G) to be complied with, which

11 means we're operating in the dark for the municipalities and for

12 Srebrenica and for the hostages component.

13 That is not a workable situation, and I should emphasise I don't

14 think this is because and -- well, I understand it's not because the

15 Defence is unwilling to turn over statements it has or unwilling to

16 identify the facts that the witnesses will testify to and put them in a

17 summary, it's because they don't know. They simply have no idea what

18 these witnesses will testify to. Now that's -- that may not be wholly

19 surprising in view of the fairly bloated witness list which, as the Court

20 has noted before, it contains either irrelevant or marginal or cumulative

21 witnesses, but that's not a matter that can justify the failure to comply

22 with 65 ter (G) and the adverse impact on the Prosecution and on the

23 Court's ability to understand the case and control the case. I should

24 add that this is a little bit reminiscent of the fact that the accused

25 refused to provide a pre-trial brief. And utterly refused to do it, not

Page 28843

1 even a token effort to do so.

2 In any event, at this point we see no recourse but to seek the

3 Court's intervention, and what we have in mind what is the Court alluded

4 to a few moments ago and that is some kind of deadline. And the

5 deadline -- again, we're trying to bend over backwards not to be unduly

6 demanding, even if it's entirely our right, and to be as accommodating as

7 possible, but the limits have been stretched too far. So we would seek

8 something along the lines that all of the statements or summaries for the

9 Srebrenica component be provided by the end of this month, along with

10 the -- sorry. Sarajevo. By the end of this month. Along with the

11 appropriate upload of the relevant exhibits, that we have the

12 municipalities and the hostages statements and/or summaries by the end of

13 November, and Srebrenica by the end of December.

14 Now, we think that's an extremely reasonable accommodation in

15 lieu of the fact that these -- that compliance with the Rule was required

16 a long time ago. And this is the only fair way to proceed, the only way

17 to give the Prosecution an opportunity to do what it needs to do and that

18 is prepare for these witnesses.

19 JUDGE KWON: Just a second.

20 Yes, Mr. Robinson.

21 MR. ROBINSON: Yes, Mr. President. Maybe I could give you the

22 whole background of how we have tried to work in connection with the

23 65 ter summaries and the witness statements.

24 So we envisioned the witnesses that we believe could be providing

25 information that was helpful to the Defence mostly through reading

Page 28844

1 Prosecution interviews of witnesses and also our own -- the knowledge of

2 our own investigators and to some extent Dr. Karadzic, and we came up

3 with a draft list of people who were potential witnesses, and we tasked

4 our investigators to start interviewing those potential witnesses and

5 they have done that. We're limited by the number of investigators that

6 we have and also by the time they were able to start because there was

7 some delay in the approval process for our investigators. But if you

8 would like to look at their invoices as well as the invoices of all the

9 members of our Defence team, you will see how many hours are being worked

10 by everybody on our team to try to actually interview Defence witnesses

11 and take statements from them.

12 Now whenever -- well, when we reached the point of the 27th of

13 August, we had not interviewed all of the people that we would like to

14 call as witnesses and so we did the best we could to make summaries based

15 on those who were interviewed on their -- on their statement which we

16 referenced in the -- in the Rule 65 summary and those that weren't

17 interviewed based on the information that was available to us as best we

18 had it without those persons having been interviewed.

19 Now, since that time we continue to interview witnesses focussing

20 on Sarajevo because that's the first part of our Defence case, and

21 whenever we have a statement it's immediately uploaded into e-court and

22 disclosed to the Prosecution, and our case managers are also supposed to

23 also upload all of the documents that are referenced in those statements,

24 although it seems that that maybe isn't being done hasn't been done as

25 completely as it should be.

Page 28845

1 So as soon as we have interviewed a witness and we have -- we'll

2 take a statement from them, it's disclosed to the Prosecution and that

3 becomes part of the information that's available to them to prepare. But

4 given the limitations that we have, and I think we have about 20 per cent

5 of the resources that the Prosecution has, we are not able to interview

6 every witness in time to meet those deadlines that are suggested by the

7 Prosecution. All we can do is continue to interview the maximum number

8 of witnesses with the amount of people that we have, and as soon as those

9 interviews are completed, to give that information to the Prosecution.

10 Thank you.

11 [Trial Chamber confers]

12 JUDGE KWON: Mr. Tieger and Mr. Robinson, the Chamber encourages

13 you to sit together after this hearing sometime today or tomorrow and try

14 to sort out, as far as possible, and then, if necessary, come back to us

15 if Chamber's intervention is necessary.

16 MR. TIEGER: We will do so, Mr. President. But that's what we

17 did between the last Status Conference and this one. I don't know that

18 any further progress can be expected. I'm not -- I'm obviously prepared

19 to do what the Court wishes, but I think I need to foreshadow that.

20 JUDGE KWON: I hope this time it will be different.

21 Before I shall deal with some minor things. Are there any

22 matters for the parties to raise?

23 Yes, Mr. Tieger.

24 MR. TIEGER: Well, you'll be happy to hear there's on wholly

25 non-contentious matter, Mr. President, and that relates to Exhibit P4585.

Page 28846

1 It's a matter I discussed with Mr. Robinson. This is the Zvornik brigade

2 duty officer notebook. There's simply a misconnection between what was

3 uploaded in e-court. The Court may recall that the Prosecution

4 distributed a hard copy document to the Court and the parties which

5 was refer -- and the witness which was referred to during the course of

6 testimony. We then admitted that. Unfortunately, it turned out that

7 the -- what was -- what was uploaded electronically didn't conform to the

8 hardcopy, so everyone agrees that needs to be done. The Registrar just

9 advised us we needed to make that representation in court.

10 JUDGE KWON: Anything to add, Mr. Robinson?

11 MR. ROBINSON: No, thank you, Mr. President.

12 JUDGE KWON: The Chamber sees no problem there, Mr. Tieger.

13 Well --

14 MR. ROBINSON: Excuse me Mr. President.

15 JUDGE KWON: Yes, Mr. Robinson.

16 MR. ROBINSON: Your efficient staff has just sent me an e-mail

17 saying that they discovered that with respect to the Krnojelac motion

18 they would be -- the page that I was referring to was missed by the

19 Registry during the filing process and will be provided to the Chamber,

20 so I hope you'll reconsider your ruling once you receive that. Thank

21 you.

22 JUDGE KWON: The Chamber will look into it.

23 And in the interim, the Chamber has reviewed the revised public

24 redacted version of Exhibit D481 uploaded by the accused on e-court as

25 1D6028, and we are satisfied with the redactions made. The Chamber will

Page 28847

1 thus admit the public redacted version of Exhibit D481 into evidence.

2 The Chamber will also place D481 permanently under seal. The Chamber

3 requested the Registry record that 1D6028 is admitted into evidence and

4 to assign it an exhibit number and that D481 is now under seal.

5 [Trial Chamber and Registrar confer]

6 THE REGISTRAR: Your Honour, 1D6028 will be Exhibit D2269.

7 JUDGE KWON: Thank you. Now -- yes, Mr. Robinson.

8 MR. ROBINSON: Mr. President, before we adjourn, I'd just -- with

9 respect to the first witness, Mr. Demurenko, I want to advise the Trial

10 Chamber that when we filed last night the Rule 92 ter notification one

11 thing was omitted and that was a list of the exhibits which we're asking

12 be added to our 65 ter list and this morning that has been rectified and

13 a new -- and it's been filed correctly, so I just wanted to call your

14 attention to that, and we will be asking at the commencement of his

15 testimony to add a number of documents to the 65 ter list.

16 Thank you.

17 JUDGE KWON: Thank you, Mr. Robinson.

18 Finally, turning to scheduling matters. The Chamber wishes to

19 first put on the record that this Chamber and the Mladic Chamber have

20 agreed to swap courtrooms, I and III, on a monthly basis. In the event

21 that the month ends in the middle of a sitting week, the Chambers will

22 remain in their respective courtrooms until the end of that week.

23 Second, in order to allow the accused to return to the UNDU as

24 soon as possible but not to waste any courtroom time, the Chamber has

25 made inquiries as to whether it would be possible to reduce the lunch

Page 28848

1 break by 15 minutes, thereby adjourning every day at 2.45 p.m. instead of

2 3.00 p.m. The various units of the Registry have approved this and the

3 Chamber now wishes to express its gratitude to them. So the Chamber

4 would leave it to the Defence and parties to decide on this issue.

5 Would the parties agree to this new schedule, i.e., lunch break

6 of 45 minutes and a hearing end time of 2.45 p.m.?

7 MR. ROBINSON: Yes, Mr. President. We thank you everyone for

8 that.

9 JUDGE KWON: Mr. Tieger.

10 MR. TIEGER: Yes, Mr. President.

11 JUDGE KWON: Thank you. So that will be the case.

12 Then unless there are any matters to be raised by the parties,

13 hearing is now adjourned.

14 --- Whereupon the Pre-Defence Conference adjourned

15 at 10.21 a.m.