Page 26617
1 Wednesday, 18th October 2000
2 [Open session] 3 [The accused entered court] 4 --- Upon commencing at 9.38 a.m. 5 JUDGE MAY: Yes, Mr. Nice. 6 MR. NICE: I regret that the position with the videotape is not as 7 I had hoped it would be. I have served a preliminary note on what is 8 intended and what should be produced from the tapes that were made. 9 Yesterday, the editing process which had been planned with available 10 resources was thwarted by the technician's need for a particular original 11 tape that came from the evidence unit, and then he made the decision, 12 which, of course, we have to respect and understand, that that had to be 13 recopied in order to be edited. I'm afraid to say the technicalities of 14 this were beyond me, but the upshot of it is that the exercise is being 15 done this morning, and it is, I'm afraid, unlikely to be ready even for 16 this afternoon. I apologise for that. If there is time in the course of 17 the remaining hearings of the case, I had hoped to be able to play it. 18 The small schedule produced this morning shows a maximum of 87 minutes, 19 but I've set out the hope that we may be able to save time on that, either 20 by some further editings today or by use of some fast forward. 21 JUDGE BENNOUNA: It is not possible for the Chamber to follow 85 22 minutes of video. You can understand this, Mr. Nice. I think what is 23 possible is to -- perhaps you can make a selection of the most important, 24 for the trial, parts of this video, and then we can follow these parts. 25 But 85 minutes, it's not possible to hear 85 minutes of video. And I'm Page 26618 1 moving into French. 2 [Interpretation] I suppose it affects the whole area, 87 minutes 3 of the video. But I believe the Chamber should be shown only the most 4 relevant parts, the most relevant segments, that is, what we need for the 5 hearing. And you should make a selection out of those 87 minutes, a 6 selection of fragments which you would show the Chamber. 7 MR. NICE: We've already made a selection in bringing it down to 8 87 minutes. As the Chamber will see, a large portion of that relates to 9 sites that we videoed for Mr. Kovacic. My proposal, as set out on the 10 document, is that we may indeed be able to reduce it further, and that's 11 what I'm going to achieve, I hope, today. 12 JUDGE MAY: We'll move, then, to consider the rebuttal evidence. 13 We have, in that connection, the original submission by the Prosecution 14 and its more recent notice. We have a response from Mr. Kordic. We have 15 read those documents. We will consider oral submissions, which can be 16 made, I would have thought, briefly, in the light of the very broad 17 submissions that have been made on behalf of those two parties. 18 [Trial Chamber confers] 19 JUDGE MAY: Mr. Nice, it may be that we should call on you to 20 begin with. It seems that we're dealing -- we're going to deal with three 21 types of evidence at this stage: One is the affidavit/formal statement, 22 another one is live evidence in rebuttal, and the third is any new 23 evidence which the Prosecution was not aware of during the course of its 24 evidence in chief, which is not strictly rebuttal evidence but in another 25 category. Page 26619 1 We've considered the jurisprudence of the Tribunal, and we distil 2 these tests, certainly for rebuttal evidence: One, does it deal with 3 Defence evidence in chief and respond to that, as opposed to reinforcing 4 the Prosecution case? Two, does it deal with a significant issue as 5 opposed to a peripheral issue, and is it therefore highly probative? 6 Now, with those matters in mind, it may be sensible to deal first 7 of all with the whole question of affidavits/formal statements. As I say, 8 we've read what you've said about the individual witnesses, but we'll hear 9 your submissions and then we'll hear from the Defence. 10 MR. NICE: Yes. Your Honour, just give me one minute. 11 [Prosecution counsel confer] 12 MR. NICE: On the affidavit issue, Mr. Scott has taken the lead. 13 We haven't really decided how to partition out the work this morning, but 14 it's probably appropriate for him to deal with that, if that would be 15 acceptable to the Chamber, and I'd ask him to do so. 16 JUDGE MAY: Yes. Yes, Mr. Scott. There's one matter I should 17 have put to Mr. Nice which perhaps you can assist us with, which is: How 18 many of these witnesses are you going to rely on? Your pleading says 12 19 or 13. 20 MR. SCOTT: Yes. 21 JUDGE MAY: But there are 26 that you've put before us. 22 MR. SCOTT: Your Honour, we would intend to rely on all of them. 23 We're not -- to the extent that we're calling all of the evidence, we 24 wouldn't call -- we wouldn't offer the evidence if we weren't relying on 25 it, obviously. But it is to -- it is being proposed that it be presented Page 26620 1 in three different ways, in the interests of covering the evidence that we 2 believe the Court should consider at this stage and to do so in the most 3 efficient way possible. So we propose some witnesses live, some by 4 statement, and some by transcript. But if I understand the Court's 5 question correctly, we'd be relying on all of the evidence, Your Honour. 6 JUDGE MAY: Very well. Thank you. 7 MR. SCOTT: Your Honour, in terms of the statements, what the 8 Prosecution has tried to do here at the end of this case is take to heart 9 what this Chamber has directed all of us, all the parties to do since 10 before the trial started in April of 1999, and that is to seek ways to 11 present evidence as efficiently and effectively as possible and to take 12 advantage of such tools and devices that might be available under the 13 Tribunal's rules and practices to make the presentation of evidence 14 smoother and shorter rather than more difficult and longer. 15 It is not surprising that whenever the Prosecution proposes to 16 call witnesses live, the complaint from the Defence is it takes too long. 17 When the Prosecution proposes to call witnesses by statement, the 18 complaint is that that can't be done. So it's obvious that which ever 19 position the Prosecution proposes in order to bring this case to 20 conclusion, the Defence, predictably, will object either way, one way or 21 the other. 22 What we have proposed, Your Honour, here is that certain of the 23 rebuttal witnesses be presented by way of formal statement and we propose, 24 and our papers address this, I'll only summarise here, that they be 25 submitted under Rule 89(C) picking up, as some of the recent Appeals Page 26621 1 Chamber jurisprudence has shown, a separate and distinct basis for such 2 statements. It's not just simply that it relies upon the basic and 3 general rule of this Tribunal that adopts an inclusive rather than 4 exclusive approach to the reception of evidence. What we have suggested, 5 Your Honour, is that these statements are no different in fashion than 6 many statements that have been, frankly, accepted on both sides, excuse 7 me, on all sides, both Defendants and the Prosecution. 8 As to their reliability, Your Honours, we submit that we're not 9 riding on a clean slate at this date of the proceedings. The Chamber has 10 heard extensive evidence, perhaps sometimes more evidence than it would 11 like, but the point is this: The Chamber can receive these statements now 12 in the full context of everything it knows. The Chamber can assess the 13 reliability, the apparent consistency or, if the Court decides, the 14 inconsistency of these statements and give them the ultimate weight that 15 the Chamber chooses to. 16 If the weight of the evidence is corroborated -- corroborates or 17 is corroborated by these formal statements, then I suggest that there is 18 sufficient indicia of reliability that the Court should accept, especially 19 at this stage of the case, in rebuttal, and to meet the Court's proposed 20 timetable or timetable that this be done. 21 If the Court ultimately looks at the statements and believes and 22 reaches the conclusion that, based on what it knows of the evidence 23 presented over the past months of this case, they are so far out of 24 kilter, if I can say that, that they do not appear reliable, then the 25 Chamber can obviously make that ruling. But there must be a way, Your Page 26622 1 Honour, we propose, there must be a way under the current rules of this 2 Tribunal and if it isn't 94 ter and, frankly, with all the problems 3 attended to that rule in its current form, then there is 89(C) as the 4 Appeals Chambers recognised. That is what we would propose, Your Honour. 5 It is also in the nature of this, let me also make this point 6 about what the Prosecution proposes. The rebuttal case can also be 7 properly viewed, I submit, as reinforcing or buttressing case in chief 8 evidence which the Defence case has attacked, especially here when what 9 we've seen, especially in the Cerkez case, situations where five or six or 10 seven witnesses or more have been called on a point where perhaps the 11 Prosecution has called only one witness or two witnesses based upon early 12 commitments elicited by the Chamber to limit the number of witnesses on a 13 particular point. 14 The most efficient way, without taking more time for the 15 Prosecution to respond, Your Honour, to those issues now is not to present 16 every additional witness live, but to present those statements, if you 17 will, in corroboration. If you want to adopt the philosophy of 94 ter at 18 least in part, then they do, in fact, corroborate prior live testimony or 19 support the prior live testimony of witnesses that the Chamber has seen 20 and heard. 21 We have also made the point in our papers, Your Honour, that 94 22 ter does not particularly lend itself to the rebuttal case. A rebuttal 23 case, by its very nature, is a reactive case. The Prosecution could 24 hardly have anticipated at the beginning of its case the issues the 25 Defence would raise, the attacks on the Prosecution evidence that the Page 26623 1 Defence would make, and therefore can only respond. And to the extent 2 that any reading of Rule 94 ter would have required us to anticipate and 3 seek these affidavits a long time ago, Your Honour, we submit the rule is 4 not conducive and indeed can be read as not applying, or at least in this 5 respect, to a rebuttal case as opposed to a party's case in chief. That 6 is our position, Your Honour, in a nutshell. Our papers go on a little 7 bit in greater detail. 8 I would say that in final, my final point on this, Your Honour, 9 would be that the Court will know, and I'll ask the Chamber to recall, 10 please, the difference of attitude and approach shown by the Prosecution 11 and by the Defence to this whole issue of affidavits and statements. 12 While the Defence have taken every opportunity to oppose and restrict and 13 limit the amount of this type of evidence received at every juncture, the 14 Prosecution, on the other hand, has taken, frankly, a liberal and 15 inclusive view, objecting only to those affidavits which were the most 16 offensive which most went to the heart of the matter, and those alone. 17 Many, many others, a large number of others, despite any technical 18 irregularities that might have been raised in the Prosecution's view in 19 trying to move this case forward, was to take a pragmatic approach and let 20 the Chamber have those statements and ultimately decide for itself and 21 give them the weight that the Court deems best. That is in stark contrast 22 to the position that the Defence has taken consistent with their overall 23 approach, and that is agree nothing, oppose everything. 24 In the alternative, Your Honour, if the Court wishes, if the 25 Defence prevails on this point, if the Court wishes to have these Page 26624 1 witnesses considered live, they can be called live. The Prosecution has 2 simply tried to present an alternative method for presenting this 3 information in an efficient manner at this juncture of the case. Thank 4 you. 5 JUDGE MAY: Mr. Scott, is there anything you want to say on the 6 substance? 7 MR. SCOTT: In terms of the individual affidavits? 8 JUDGE MAY: Yes. 9 MR. SCOTT: Well, Your Honour, I could go through them one by 10 one. I don't know if the Chamber wants to do that. I am happy to if that 11 assists the Chamber but I'd hate to do it if the Chamber doesn't want to 12 hear that. Is there a particular -- if the Chamber could give me some 13 guidance on a particular item, I'm happy to -- 14 JUDGE BENNOUNA: [Interpretation] Mr. Scott, I have two questions 15 for you. You are principally relying on Rule 89(C) or perhaps 94 ter. 16 But 94 ter wasn't really drawn up for rebuttal purposes. Right. One can 17 discuss that. But you are talking about formal statements largely, and 18 that is what you are relying on and a very long article, 90(C). But these 19 statements were taken by whom? That is my first question. Were they your 20 investigators who took those statements? How were they taken? 21 MR. SCOTT: May it please the Court. You are right, we are 22 relying primarily on 89(C), but just for the purpose of making the records 23 clear and making our papers state, our submissions also being based 24 simultaneously or, in the alternative, on 94 ter to the extent that it can 25 be construed consistent with the rebuttal case, we want to preserve our Page 26625 1 position on that. 2 To answer, Judge Bennouna, your question, they are formalised 3 statements that have been taken by and formalised by a magistrate in 4 Bosnia-Herzegovina. They are not statements taken -- they are not simply 5 interview statements taken by an ICTY investigator. They are statements 6 of the nature the Chamber has seen before where the witness has been taken 7 to a magistrate in Bosnia, and they have been presented and formalised in 8 that fashion. And for -- I think I have most of them with me, but that's 9 what they are. 10 JUDGE BENNOUNA: [Interpretation] And this magistrate has, I guess, 11 merely verified that it was the person, that the person who signed the 12 declaration was the author of the statement and that was then 13 authenticated, or was this statement taken before the magistrate or did he 14 simply authenticate the signature? 15 MR. SCOTT: Your Honour, I have one in front of me. They are 16 consistent, as I understand it, again, with the practice that was adopted 17 by all sides, at least in toward the latter part of the case. This one 18 indicates that this witness appeared before the cantonal court in Zenica 19 on the 5th of October, was advised to tell the truth. He confirmed the 20 statement that was made. There is a statement that's attached to it. It 21 says, "The proceedings pursuant to a request for assistance according to 22 the law on criminal procedure the Federation of Bosnia and Herzegovina 23 which regulates the procedure for providing international legal assistance 24 pursuant to requests from organs abroad." 25 As far as I know, Your Honour, it meets the precedent or practice Page 26626 1 that has been established in this Chamber. I'm happy to tender one to the 2 Chamber. 3 JUDGE MAY: Pass it up, please. 4 JUDGE BENNOUNA: [Interpretation] And to follow up on this 5 question, Mr. Scott, what about the Defence's right to cross-examine your 6 witnesses? 7 MR. SCOTT: Your Honour, that is an issue that, candidly, is 8 raised by all questions of hearsay evidence and all the questions 9 concerning 94 ter. And the philosophy of the Tribunal as reflected in the 10 Rules and we think other -- 11 JUDGE BENNOUNA: [Interpretation] No. No. No. Sorry. I am not 12 referring to 94 ter. I am referring to evidence which is not documentary 13 evidence but testimony given by a witness authenticated by a Bosnian 14 judge, by a Bosnian magistrate. You know very well that the statute 15 has -- our statute says that the Defence is entitled to cross-examine. 16 That the right to cross-examine is a statutory right. 17 So this is the question. I'm not referring to affidavits. 18 MR. SCOTT: Very well, Your Honour. The point -- thank you, I 19 appreciate the Court's question. The point that I was trying to make was 20 simply to cite 94 ter and other of the rules which do reflect, I think, 21 some compromise or some accommodation between the efficiency and the 22 presentation of evidence and the Defence rights otherwise -- their rights 23 otherwise to confront and cross-examine the evidence. 24 But any of these, let me submit that any of these practices, 25 indeed the admission of hearsay evidence generally limits or imposes upon Page 26627 1 an absolute right to cross-examine the evidence. There is no perfect 2 right in the Tribunal's jurisprudence or indeed, as I was about to say, I 3 think, in the modern jurisprudence of most countries and, as I am advised, 4 including the European courts jurisprudence. 5 THE INTERPRETER: Could you slow down, Mr. Scott, please. 6 MR. SCOTT: I'm sorry. 7 There are a number of ways in which there is some accommodation of 8 those two competing values, if you will. The Court is -- Judge Bennouna, 9 you are absolutely right. If the law is that there is an unqualified 10 right that can never be accommodated in any way to cross-examination, then 11 all of these devices, all of these methods must fail. I don't think 12 that's the Tribunal's practice. 13 JUDGE BENNOUNA: [Interpretation] Thank you. 14 JUDGE MAY: Now, is there anything you'd like to say in answer to 15 the Defence pleading which we've read? 16 MR. SCOTT: Well, on -- affidavits not beyond what's already been 17 said, Your Honour, we've -- again, if the Court wants to go through some 18 of the live witnesses, we can do that separately, to the Court's pleasure, 19 but in terms of the formal statements that we've tendered or would tender, 20 I think, Your Honour, that states our position. 21 JUDGE MAY: Or anything else. 22 MR. SCOTT: Or anything -- all right. Well, let me just point a 23 couple of examples, Your Honours, and I'm not -- these may or may not be 24 responsive to what the Court is thinking, so I can only pick a couple of 25 examples. I'll be happy to address any other items or persons or proposed Page 26628 1 witnesses that the Chamber would like to talk about, obviously. Let me 2 just pick two to illustrate the point, I think. 3 One is -- Your Honour, I can't list the -- I can't state the name, 4 and, unfortunately, the list I brought with me for some reason wasn't 5 numbered. Let me find another -- if the Chamber has annex 1 to our most 6 recent filing on the 13th of October. Annex 1. If the Court could look, 7 for instance, to proposed Witness number 13. I do not want to state his 8 name in open court or describe him in any detail because to do so would 9 identify him, of course, and it is a sensitive matter. 10 This is one of the witnesses that the Defence has objected to. 11 Let me respond to that by saying this: For whatever reason, the Chamber 12 may recall, the Kordic Defence case, in particular, has gone on and on 13 about Sarajevo being under siege and Sarajevo being cut off, and at one 14 point, in fact, Mr. Sayers himself said, "There has been a lot of evidence 15 on that already concerning the siege of Sarajevo." They went on and on 16 about how it was the HVO who was trying to relieve Sarajevo. And the 17 Chamber may recall -- and particularly Judge May, because, Judge May, you 18 asked several questions of this witness on this topic -- Srecko Vucina 19 even testified that it was the Muslims who prevented Sarajevo from being 20 relieved, that the HVO were anxiously trying to relieve Sarajevo and to 21 send forces in that direction, and it was the Muslims who prevented 22 Sarajevo from being relieved. 23 In the midst of all this, the Kordic Defence presented evidence 24 about how Kordic, apparently as a friend to Muslims and as a great 25 humanitarian, even assisted or offered to assist in getting aid or Page 26629 1 assistance to Sarajevo. The exact time of this, as presented by the 2 Defence case, was in the period April to June 1992. At one point, in 3 connection with this, the Kordic Defence even elicited the testimony that 4 Kordic was not anti-Muslim but "a great humanitarian" and wanted to 5 "maintain good neighbourly relations with everyone in Bosnia." 6 Now, quite to the contrary, Your Honours, the proposed testimony 7 of this witness, number 13, is that, quite the contrary, during this exact 8 same period of time, in May 1992, Mr. Kordic was involved in blocking and 9 plundering a convoy that was on its way to Sarajevo, and it was only 10 released, only released by Mr. Kordic on the direct intervention of both 11 Franjo Tudjman and Mate Boban. Now, that is direct rebuttal evidence. 12 That directly rebuts the Kordic Defence case. It also goes to the 13 question of Kordic's power and position. They have repeatedly said and 14 repeatedly claimed that Kordic had nothing to do with controlling 15 movements in Central Bosnia, that he had nothing to do with stopping or 16 blocking or robbing convoys, such as, another example, the Convoy of Joy. 17 This evidence is direct rebuttal evidence. So we do believe it is proper, 18 Your Honour. 19 The second example that I will give you and then, absent questions 20 from the Court, I'll sit down, is the two related to, as the Defence calls 21 it, the Kaonik witnesses. Those are Witnesses 17 and 18. And Your 22 Honour, these aren't Kaonik witnesses at all; they are witnesses, again, 23 about Kordic's role, power, and authority. The fact that that evidence 24 happens to touch about, in some fashion, Kaonik, doesn't make it evidence 25 about Kaonik. Evidence about Kaonik, let me submit to the Court, would be Page 26630 1 this -- and what the Court at one point cut -- told us they were not 2 anxious to hear more of was evidence, for instance, about the conditions 3 of confinement at Kaonik: "Well, it was crowded. Well, we didn't get 4 enough food. We were taken for trench-digging." And the Chamber at one 5 point let its desires be known that you did not need to hear a lot of 6 additional evidence on that. This is not that kind of evidence. This 7 evidence goes to Kordic's authority and power. One of the witnesses will 8 say, and has a written document that says so, that he was released -- it 9 says that he was released from Kaonik on Kordic's authority, on 10 Kordic's -- yes, Your Honour. I apologise. 11 JUDGE ROBINSON: I am at a disadvantage because of the structure 12 here. It seems to me, though, that evidence about the command status of 13 the accused Kordic, that is essentially part of the Prosecution's case, I 14 mean generally, and I would have some difficulty in concluding that it's 15 permissible to submit, to adduce at this stage, this kind of evidence in 16 rebuttal. I see generally as part of the Prosecution case and evidence 17 which should have been adduced by the Prosecution. 18 MR. SCOTT: I can understand the Court's -- excuse me. I can 19 understand, Judge Robinson, your view on that point. Of course, 20 everything that we would present to some extent is related to the 21 Prosecution's case, because that has been -- Kordic's role and authority, 22 of course, has been -- and his involvement in the charged crimes has been 23 our position and been our case all along. So, of course, everything 24 ultimately does relate to that. These witnesses, Your Honour, we 25 submitted -- or excuse me -- we proposed to submit, again by formal Page 26631 1 statement, recognising that they might not be the type of witnesses that 2 the Court would want to hear at this juncture live. But given the 3 confirmation of this -- in particular, the one exhibit, the document that 4 the Chamber -- excuse me -- that the Prosecution had before, the document 5 concerning released on Mr. Kordic's authority -- I'm sorry. 6 [Trial Chamber confers] 7 MR. SCOTT: -- was a copy that we had had at one point was -- and 8 I think there was even a Defence complaint about that, and probably 9 justified in this instance -- was very poor, and since that time we were 10 able to get -- go back to the witness and get a much more legible copy of 11 that particular exhibit. Frankly, if the Court was of the view that it 12 didn't so much care about hearing from the witness but it would accept the 13 exhibit as having essentially become available in a legible form for the 14 first time, we would be happy to tender the exhibit without the witness. 15 And the only reason we offered it by -- well, the reason we offered it by 16 formal statement, or proposed to do it by formal statement rather than 17 live was it seemed like a small point, or at least a narrow point, to call 18 the witness live. I understand, Judge Robinson, your concerns. 19 JUDGE ROBINSON: I think my point really is that the evidence 20 seems to be additional rather than rebuttal. 21 MR. SCOTT: Well, I can only respond, Your Honour, I think, the 22 way I have. I understand the Court's point. Our major concern in 23 response to the issues that the Defence raised is that this was the 24 maligned evidence about Kaonik, and our basic position is, recognising 25 your concerns, Judge Robinson, is this is not Kaonik evidence; it's Page 26632 1 evidence about Kordic's authority and powers. I think that's the best 2 response -- let me just look at my notes, if I can. 3 [Prosecution counsel confer] 4 MR. SCOTT: The only other thing I would come back to, Judge 5 Robinson, in response -- sorry. 6 [Trial Chamber confers] 7 MR. SCOTT: -- is that, again, it is true that such 8 evidence -- such type of evidence was submitted certainly in the 9 Prosecution case in chief. But this was the continual theme of repeatedly 10 over and over the Defence case that this man had no military power or had 11 no power in connection with the military prisons, and we're simply 12 responding to that evidence as well. But I think that's the only -- I 13 won't take the Court's time further, unless there are other questions. 14 JUDGE MAY: Thank you. 15 MR. SCOTT: Thank you. 16 JUDGE MAY: Mr. Sayers, we have your pleading. Is there anything 17 you want to say in response to the Defence -- the Prosecution? 18 MR. SAYERS: Generally, Mr. President, no. We've put our position 19 in our pleadings, and I just apologise to the Court for the length of 20 them. But to paraphrase Blaise Pascal, and with apologies to the Court, 21 "Je n'ai pas eu le loisir de la faire plus courte." And my apologies to 22 Mr. Lopez-Terres too. We've put our position in our papers and I'd like 23 to address three points, if I may, very briefly, the first being Rule 94 24 ter, the second being Witness number 13, discussed by Mr. Scott, and the 25 third being the Kaonik evidence proposed by the Prosecution. Page 26633 1 Turning to the Rule 94 ter issue, I confess to being somewhat 2 incredulous that we're having this discussion after the Appeal Chamber's 3 decision which emphasised the importance of the rights of 4 cross-examination and other factors in connection with the receipt of 5 affidavits and formal statements. In our view, this is a simple matter. 6 The Rule is clear. We urge the Court to apply the Rule. The Appeal 7 Chamber decision's ruling is the essence of simplicity. It is not 8 complicated. It makes the observation that there are very few exceptions 9 to the general rule that cross-examination should ordinarily be permitted, 10 and it articulates what those exceptions are. 11 In response to the argument that the Rule does not apply to the 12 rebuttal phase of the case, yes, it does. There's no exception in this 13 Rule that says it only applies to cases in chief. It applies to all 14 cases -- cases in chief, rebuttal cases and rejoinder cases -- and there's 15 nothing in the Rule that supports the argument made by the Prosecution. 16 And finally, with respect to observations regarding the operation 17 of the Rule and the assertion that there have been problems with it, we 18 dispute that. There have been no problems with the operation of this Rule 19 whatsoever. We found it very easy to obtain the authentication of 20 magistrates in the Republic of -- or in the Federation of 21 Bosnia-Herzegovina, and I assume the Prosecution has too. The Rule works 22 very well. And the Rule is designed for the corroboration of live 23 testimony; and when contentious evidence has been offered, the Trial 24 Chamber has had absolutely no difficulty whatsoever in calling the witness 25 live for cross-examination, and, in our respectful submission, the Rule Page 26634 1 has worked very well. 2 With respect to Witness number 13, we would respectfully submit 3 that this witness proposes to give evidence regarding convoy issues in 4 1992, issues of the utmost peripheral nature, if I may respectfully 5 suggest. Mr. Kordic's case has not been that the HVO tried to relieve the 6 siege at Sarajevo, and I am at a loss to understand what points Mr. Scott 7 was actually making. The point that we were making was that Sarajevo, the 8 capital, was surrounded, it was cut off, and that the structures of formal 9 government broke down and simply didn't work. That was our argument, and 10 this witness doesn't really give any evidence in response to that. But it 11 should be noted that this witness does give evidence regarding a set of 12 notes that he supposedly made of a conversation with trial counsel for 13 another accused in this Tribunal. And I'm not going to dignify that 14 proposal, the proposal to introduce that sort of a document by way of an 15 exhibit or to introduce testimony. I'm not going to dignify it with any 16 discussion. We've made our position clear in our papers and we have 17 nothing to add to that. 18 Turning to the Kaonik evidence, this evidence was available to the 19 Prosecution during the presentation of its case in chief. There isn't any 20 contention that the document itself that features in Mr. Scott's 21 discussion is so-called Zagreb evidence, the only exception that I'm aware 22 to the general rule that the Prosecution has to introduce relevant 23 documentary exhibits during its own case. 24 But let me just say things on this point and they both come from 25 the Delalic decision. Page 26635 1 THE INTERPRETER: Could you slow down, Mr. Sayers, please. 2 MR. SAYERS: We have attached this -- my apologies to the 3 interpreters. We have attached the Delalic decision to our papers as 4 annex number 5 and the two points that I would like to highlight appear on 5 page 7. The Prosecution in that case attempted to call Rajko Dordic as 6 one of its rebuttal witnesses. Through Mr. Dordic, the Prosecution 7 attempted or proposed to introduce a release form that was signed by none 8 other than Zejnil Delalic, the accused himself. 9 It was proposed that Mr. Dordic would produce and authenticate 10 that release document said to have been recently obtained by the 11 Prosecution, according to the Trial Chamber's decision. Permission to 12 call that witness as a rebuttal witness denied. That sort of evidence 13 should have been called in the case in chief. That's one general point. 14 But the next point relating to the proposal to call Stephen Chambers as a 15 witness is even more pertinent and undergirds the argument that we've made 16 in our motion regarding these two witnesses. 17 Stephen Chambers was an ICTY investigator and employee of the 18 Prosecution, and the Prosecution proposed to introduce their own employee 19 to rebut, according to the Trial Chamber, the evidence of a number of 20 Defence witnesses testifying that Zejnil Delalic had no authority over the 21 Celebici prison. It was proposed that the witness would testify regarding 22 certain documents, and those documents were said, according to the Trial 23 Chamber, directly and circumstantially, to prove the scope of authority of 24 the accused. Precisely the same argument that the Trial Chamber makes 25 here. What did the Trial Chamber do? No. That's the kind of evidence Page 26636 1 that you should have put on in your case in chief, and you can't put it on 2 by way of rebuttal, and that was the express ruling of the Delalic Trial 3 Chamber. And, I would -- 4 JUDGE MAY: I was confused for a moment, of course, because we've 5 got a Major Guy Chambers here. 6 MR. SAYERS: Different Chambers. 7 JUDGE MAY: Different sort of gentleman, yes. 8 MR. SAYERS: I could make other points, but they would simply be 9 repetitive, Your Honours, of the points made in our submissions. The 10 Court well knows how long the Prosecution's case took. The efforts of the 11 Prosecution exerted in order to avoid being subjected to a time limit. 12 They've had 136 days to present their own evidence in chief through 114 13 witnesses, and 31 transcript witnesses. 14 Furthermore, we introduced and we told the Court when we gave it a 15 firm time limit, which, I might add, we beat, in our opening statement, 16 told the Court we were introducing no Kaonik evidence and we did not. Our 17 evidence addressed the case put on by the Prosecution in the case in 18 chief. That's what we were told by the Trial Chamber to do, and that's 19 what we did. It's too late now to introduce new evidence that should have 20 been introduced at that time and to make a new case against Mr. Kordic. 21 That completes the points I have to make unless the Trial Chamber 22 has any questions of me. 23 JUDGE MAY: Thank you. Yes, Mr. Kovacic. 24 MR. KOVACIC: [Interpretation] Your Honours, I believe that a great 25 deal has already been said, and I fully second the argument presented by Page 26637 1 Mr. Kordic's counsel and I do not wish to waste your time by adding 2 anything else because everything I believe has been already said by now, 3 but, of course, I am at your disposal to answer any questions if you might 4 have them. 5 JUDGE MAY: Thank you. 6 MR. SCOTT: Your Honour, may I please respond to the three points, 7 four points. And I should say that, as Mr. Nice indicated, we had not 8 really come up with any formal division of labour this morning and let me 9 just say that there may be some additional general points that Mr. Nice 10 had intended to make and he may wish to make some comments when I sit 11 down. 12 Four brief points, Your Honours, the Chamber recognised a few 13 minutes ago when it summarised where things stood that there were three 14 areas of issues concerning evidence or types or groupings, if you will, of 15 evidence. The third area or group that the President made reference to 16 was evidence not previously available. Let me just address that very 17 briefly. And I'm just -- I'm concerned only because, Your Honour, in not 18 going through each witness on our list individually that I may -- I do not 19 want to put us, obviously, at a disadvantage by not addressing each one 20 nor do I want to take the Chamber's time unnecessarily. 21 JUDGE MAY: Yes. I mean, what you're doing now is responding to 22 what Mr. Sayers said. 23 MR. SCOTT: Yes. And I just wanted to say in that regard and I 24 said it would be short, concerning several witnesses at the end and again 25 because of the -- if I could -- sorry, Your Honour, the copy that I Page 26638 1 printed this morning, for some reason the numbering was off, and I 2 apologise for that. 3 The witnesses that are indicated as 21, 22, and 23, I just simply 4 wanted to make it clear and, for the record, that may also very well be 5 considered. Those witnesses may well be considered and, in fact, would be 6 witnesses or evidence not previously known or available. All three of 7 those witnesses flow directly from documents first obtained in Zagreb. 8 We listed them here because of some uncertainty because of the 9 scope of the Court's Ruling and, to avoid any issue that might arise if we 10 didn't list them, we listed them. But as an example, I can tell the 11 Chamber that those individuals and the potential evidence they had was 12 first made known to us through the Zagreb evidence. One of the documents 13 in which -- excuse me, one particular document which the Chamber's 14 directed some attention to recently is one of those which directly relates 15 to at least two of those witnesses. It's a document about certain reports 16 from some HVO presidents in Central Bosnia, and I'll leave it at that. 17 But two of these witnesses relate directly to that document first obtained 18 from Zagreb recently. 19 Concerning the Sarajevo evidence, Your Honour, we stand by our 20 summary. By example, the Chamber can look at Ivica Kristo and Srecko 21 Vucina, and this had nothing to do with the government being cut off, it 22 had to do, and the evidence was specifically clear, with relief getting to 23 Sarajevo or assistance, either arms or humanitarian aid getting to 24 Sarajevo. And the testimony of the witness was clear that Mr. Kordic was 25 cited as a humanitarian who was doing, who was assisting organising, Page 26639 1 trying to assist in getting this relief through during the very same time 2 period, by that witness' testimony and by Mr. Vucina's testimony, as the 3 contrary evidence submitted by Witness 13. 4 Two final points. Your Honour, our papers have indicated the 5 Defence teams repeatedly failed to put their case properly to various 6 Prosecution witnesses. The Chamber made note of that on several 7 occasions, and there's one particular occasion that we've cited in our 8 papers where the President had an exchange with Mr. Stein. That happened 9 throughout the case, and indeed some of these witnesses or their former -- 10 such as, for instance, Witness 2, the fact that he is proposed here is 11 again because of issues -- 12 JUDGE MAY: I think we can't go into this. This wasn't raised by 13 Mr. Sayers. 14 MR. SCOTT: I understand, Your Honour. If I can just make one 15 final point and this simply is -- and I am doing it, Your Honour, because 16 I was trying to be brief before but I didn't know if we were doing a 17 general final address. But one final point: The Kordic Defence has 18 looked to the Kupreskic and Furundzija cases, for example, as being 19 situations where there was a number of rebuttal witnesses. Your Honour, 20 those cases were dramatically -- and one of them, in particular, the 21 Chamber's well familiar with, of course, but those cases were dramatically 22 smaller and different than this case. I would submit to the Court that, 23 considered proportionately, the fact that three rebuttal witnesses may 24 have been called live in Kupreskic and two in Furundzija would not be at 25 all disproportional to fact that, in a case of this magnitude, the Page 26640 1 Prosecution might seek to call 10 to 12 witnesses. We don't think that 2 that's out of proportion at all. Thank you. 3 MR. SAYERS: I hate to ask for the last word, Your Honour, but if 4 I might have 20 seconds. With respect to Witness 21 and Witness 23 on the 5 -- presented by the Prosecution's proposed rebuttal witnesses, no 6 contention can seriously be made that the identity of these witnesses was 7 not known until documents were recently identified. Witness number 21, 8 for example, is all over the milinfosums. All over them. Witness 23 was 9 the president of the HVO in Novi Travnik in 1993 and early 1994. How can 10 any contention seriously be made to this Trial Chamber that the identity 11 of these potential witnesses was not known to the Prosecution? We 12 respectfully submit that that is -- 13 JUDGE MAY: Well, I expect that what is being said is not that the 14 identity wasn't known, but the fact that they were available as witnesses 15 was not known, which is a rather different position. 16 MR. SAYERS: Perhaps, Mr. President, but the inquiry naturally 17 arises: Why not? Why in the world would the Prosecution not try to have 18 a word with the military commander in Busovaca area? Why would the 19 Prosecution not attempt to have a word with the HVO president in Novi 20 Travnik? It's been five years since the confirmation of the original 21 indictment. I don't need to emphasise that or the other points that I 22 have made, but the appropriate rhetorical response, if you will permit me, 23 to the question posed is: Why not? And that's all I have to say. Thank 24 you. 25 JUDGE MAY: We've heard enough, I'm afraid. Page 26641 1 MR. NICE: Your Honour, yes, can I just explain a couple of 2 things, though, because I had understood when you invited us to start, I 3 understand. 4 JUDGE MAY: I said: Had you got anything else to say? It was 5 clear, I suggest. Because we can't go on. 6 MR. NICE: No. No. But one thing, however, you referred to two 7 pleadings. In fact there are three. I think the Chamber may have 8 overlooked, if it was only referring to two, the intervening pleading of 9 the 4th of October which sets out a lot of the arguments and, indeed, 10 which deals with the Kaonik witnesses, in particular. The order of 11 pleadings was the preliminary pleading which was voluntary and simply to 12 help, then the rebuttal status pleading, and then the other pleading. 13 We've only had, of course, the Defence documents since yesterday 14 so we haven't had long to look at it, and it may be that if you won't 15 permit me to say anything else, you'll permit me to just deal with one 16 concession because I think, in light of the way the Chamber initially this 17 morning divided up the topics between affidavit, new, and so on, there is 18 certainly one bit of evidence which might be said to be new but 19 admissible, and that's, I think, at 14 and 15, which is the telephone 20 intercept witnesses. 21 Now, the Chamber will recall that the man, Husic, was called, was 22 not cross-examined despite notification and warning on the day after his 23 evidence that he hadn't been properly cross-examined, and that matters of 24 cross-examination should be raised. And then, finally, with the expert 25 witness, the Chamber elicited from the Defence that the whole conversation Page 26642 1 was being challenged and it was in those circumstances that Husic is 2 recalled. 3 Now, as to those witnesses, the Chamber may conclude two things: 4 One, that had the evidence of Husic been properly cross-examined on the 5 first occasion, why, then, the first of those two witnesses, the man who 6 heard the conversation, would have been added to the list. And, indeed, 7 it may further conclude that this is one of those rare occasions in the 8 Prosecution case, and for the reasons we've already advanced, where it 9 would have been possible to use the affidavit system as advanced in 94 ter 10 as presently understood. Because that's one of the occasions where there 11 was a discrete issue. 12 JUDGE BENNOUNA: [Interpretation] Mr. Nice, do you mean by this 13 that 14 and 15 are statements, actually? 14 MR. NICE: No. Our suggestion would be that (redacted) comes live 15 because, of course, he is the witness who can speak directly of hearing 16 the conversation and in -- had we known that it was being challenged as 17 opposed to being admitted, which was what was the previous submission, the 18 voices being admitted, subject to whatever was being hinted at, then he 19 would be added to our list. But Begovic, whose statement is less 20 specific, would have been an affidavit support witness. You'll see on our 21 schedule to the documents set out to our latest pleading that number 14 is 22 proposed live and 15 by formal statement. But my point is to accept in 23 respect of these and these alone that they may qualify as additional but 24 for entirely good reason. 25 Our position on the balance is that they are all, indeed, proper Page 26643 1 rebuttal reasons for all the reasons that are set out in the schedule, 2 even if they also contain other evidence. 3 JUDGE MAY: But (redacted), if you had known about his existence 4 or if you had known that he was a likely witness, you would have called 5 him. 6 MR. NICE: Yes. 7 JUDGE MAY: Well, he's in no sense rebutting. Only in the most 8 general sense is he rebutting in the sense that Mr. Kordic has put matters 9 in issue. What you are saying is that here is a new witness we knew 10 nothing about, he is highly probative, and therefore he should be called. 11 That's surely your position. 12 MR. NICE: Your Honour will recall from the original document 13 filed in respect of his case that the argument was presented in a number 14 of ways not the least with a view to allowing that witness to be called 15 ahead of Cerkez. First, it was made clear that he was a rebuttal witness 16 for the reasons set out in that document, and which we don't resile at all 17 and which indeed were conceded by Mr. Sayers at that stage for he rebutted 18 a number of assertions that were being made on behalf of both defendants. 19 That remains the position at the moment. 20 We left open, and it wasn't necessary to argue at that stage, that 21 that witness would also have been an admissible witness by way of 22 reopening the case or, indeed, by a Rule 98 witness for the Chamber to 23 call, but that wasn't necessary for it was conceded then that he was a 24 rebuttal witness so found by the Chamber following argument and, indeed, 25 the concession was made, was said to be appropriately made. So that that Page 26644 1 witness, in our respectful submission, is indeed a rebuttal witness. Not 2 only does he rebut assertions of non-presence advanced by the defendant 3 Kordic at relevant scenes on the night in question, but he rebuts other 4 matters, for example, assertions of identity of the political and the 5 military party or distance of Kordic from the military police. 6 He is a witness strongly rebutting of both Defence cases. 7 JUDGE MAY: We've had enough. Yes. We'll rule now. We'll 8 consider this. 9 Mr. Nice, I don't want to be discourteous but, you know, we can't 10 go backwards and forwards. Although it's right that I invited the last 11 intervention, I think we must bring it to a close. 12 MR. NICE: Certainly I -- so be it. I'm sure the Chamber will 13 recognise, and I'm very concerned that I should at least say this, which 14 is general: I'm sure the Chamber will recognise, when faced with a 15 pleading of the type and in the form and with the extensive arguments 16 raised last night, there will be a lot of matters that in full and 17 limitless discussion we would want to raise and with which we disagree. 18 We have tried this morning to be economic by focusing, as invited, on 19 specific issues although there would be much more to say. 20 JUDGE MAY: Very well. 21 [Trial Chamber confers] 22 JUDGE MAY: We'll consider this. We'll sit again at 12.00. If 23 the matter is not resolved, we'll pass through a message. 24 --- Recess taken at 10.42 a.m. 25 --- On resuming at 12.36 p.m.
Page 26645
1 JUDGE MAY: This is the ruling of the Trial Chamber. The
2 Prosecutor seeks to call 27 witnesses in rebuttal, under three general
3 headings: live rebuttal witnesses, the affidavits or statements of
4 witnesses in rebuttal, and new evidence not available to the Prosecutor
5 during his evidence in chief and which he submits should be called ex
6 improviso as a result.
7 The first matter to deal with is the form of the evidence. The
8 Prosecution submit that in some cases, instead of live witnesses,
9 affidavits or formal statements should be admitted. The Defence object to
10 this course. We agree with that objection. In relation to the submission
11 that witnesses could give evidence by means of affidavit, any submission
12 of that sort would be governed by Rule 94 ter. The Appeals Chamber has
13 recently said that the procedural steps or requirements in that Rule must
14 be strictly followed. In our judgement, that applies to rebuttal evidence
15 as to any other evidence given at the different stages of the trial.
16 These requirements have not been fulfilled in the case of the witnesses
17 who it is sought to call; therefore, their evidence is not admissible by
18 way of affidavit.
19 Mr. Scott's next submission was that the statements should be
20 admitted under Rule 89(C). In our view, that argument is not sustainable
21 either. That Rule was not designed for the wholesale admission of witness
22 statements, and necessarily, therefore, hearsay at this stage of the
23 case. So therefore, that course is not open either. Nonetheless, we have
24 considered the evidence of the various proposed witnesses as though all
25 were to be called live, and we shall rule on the admissibility of each
Page 26646
1 accordingly.
2 Turning to the law, Rule 85 permits the Prosecution to call
3 evidence in rebuttal. However, the Tribunal practice has been to limit
4 such evidence strictly to matters arising in the Defence case which were
5 not already covered in the Prosecution case. In Furundzija, the Trial
6 Chamber, in its decision of the 19th of June, 1998, stated that the
7 purpose of the Rule was to challenge Defence evidence which could not
8 reasonably have been foreseen and not to adduce evidence which would
9 properly have been proved as part of the Prosecution case. In Celebici,
10 the Trial Chamber, in its order of the 30th of July, 1998, said that
11 rebuttal evidence is evidence which is limited to matters which arise
12 directly and specifically out of the Defence evidence, and the Trial
13 Chamber in that case allowed the Prosecution to call only one of four
14 anticipated rebuttal witnesses.
15 There was a further application to call evidence by the
16 Prosecution. On this occasion, the Trial Chamber said that the evidence
17 had existed ab initio and did not arise ex improviso, and the failure to
18 use it during the Prosecution case had not been satisfactorily explained.
19 That's at transcript page 15519.
20 In Tadic, similarly, a rebuttal witness was permitted to testify
21 only to issues raised by the Defence. Judge McDonald, presiding, said
22 that during the argument that the Trial Chamber's concern was with a
23 practice of offering additional evidence which the party had an
24 opportunity of offering in the case in chief, transcript 6291 to 292.
25 That this is the practice is illustrated by the eight cases in which
Page 26647
1 rebuttal evidence has been given. In none of them did the rebuttal case
2 last more than five days. In the two Lasva Valley cases which have
3 similarity with this, Kupreskic and Blaskic, the rebuttal involved five
4 witnesses in five days in one; and in Blaskic, two witnesses in four
5 days.
6 The application must also be seen against the background of the
7 length of this case. It began in April 1999. There have been 228
8 witnesses to date, including 115 for the Prosecution. The case has taken
9 222 days, and 3.213 exhibits have been filed. As a result, a great many
10 issues have been raised, some much more significant and important than
11 others. Against this background, the Trial Chamber has to bear in mind
12 the duty under the statute to ensure a fair and expeditious trial.
13 In our view, to allow an extensive rebuttal case and evidence
14 would be to contravene that duty. Therefore, only highly probative
15 evidence on a significant issue in response to Defence evidence and not
16 merely reinforcing the Prosecution case in chief will be permitted.
17 Evidence on peripheral and background issues will be excluded.
18 Turning to the witnesses whom the Prosecution proposed to call,
19 and using the numbers in the Prosecutor's filing of the 13th of October
20 2000, we make the following rulings. I shall do this to some extent in
21 shorthand form in order to try and save some time. When I refer to
22 evidence as "reinforcing," that means evidence simply reinforcing the
23 Prosecution case in chief and therefore not proper for rebuttal.
24 "Peripheral" refers to a peripheral issue and therefore not admissible,
25 likewise not significant.
Page 26648
1 All the evidence is excluded for the reasons which will be given
2 against each number unless it is specifically ruled that the evidence is
3 admitted. Starting then with number one:
4 1. Reinforcing, peripheral.
5 2. A witness we've heard already, not on significant issues.
6 3. Not significant.
7 4. To be admitted. There is no objection from the Kordic
8 Defence and this is a matter proper for rebuttal.
9 5 and 6. Reinforcing and cumulative.
10 7. Not significant, not highly probative.
11 8. Reinforcing and cumulative.
12 9. To be admitted. No objection on behalf of Mr. Kordic,
13 properly the subject of rebuttal evidence.
14 10. Admit. Proper rebuttal evidence dealing with evidence
15 called by the Defence.
16 11. Too general to be probative on the previous point, that
17 is under 10.
18 12. Admit. This is evidence of a new witness not known to
19 the Prosecution, unavailable to them until very late in the trial. It is
20 potentially highly probative and the Trial Chamber bears in mind the duty
21 to ascertain the truth of what occurred.
22 13. Peripheral.
23 14. Admit. This is the subject of proper rebuttal evidence
24 in our view, and on a significant issue.
25 15. Too general to be probative.
Page 26649
1 16. Not relevant at this stage.
2 17 and 18. Reinforcing.
3 19. Peripheral.
4 20. Peripheral, and I would add this: That evidence going
5 merely to reinforce the credibility of a Prosecution witness should not,
6 in our view, normally be admitted in rebuttal.
7 21 and 22. To be admitted. These are new witnesses,
8 potentially highly probative.
9 23 and 24. These are new witnesses, but in our view in a
10 different category and of doubtful probative value having regard to the
11 summary that we have seen.
12 Finally, numbers 25 to 27, cumulative and reinforcing.
13 So summarising our ruling, we shall admit the evidence of numbers
14 4, 9, 10, 12, 14, 21, and 22.
15 I should say, speaking for myself, that there are two days which
16 have already been made available for (redacted) and I would hope that the
17 other matters could be dealt with within four days or so.
18 MR. NICE: I'm sorry, I didn't know if Your Honour had finished.
19 Sorry.
20 JUDGE MAY: I have. But just to add this, that there are matters
21 of disclosure of identities.
22 MR. NICE: I was going to turn to that issue. It may be that it
23 would be preferable to do it briefly in private session.
24 [Private session]
25 [redacted]
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Page 26653
1 [redacted]
2 [redacted]
3 [redacted]
4 [Open session]
5 MR. NICE: Your Honour, in relation to outstanding exhibits,
6 Ms. Kind and the Kordic Defence legal officer have worked very well and
7 cooperatively in very substantially reducing any outstanding challenges.
8 The Court will see set out very limited remaining objections. And if we
9 look at the document starting at page 3, page 3 is really an
10 administrative exercise simply in tidying up potentially duplicative
11 exhibits. There are some outstanding translations. They've been
12 provided, I'm told, today. It's unlikely they're here. It's unlikely
13 there'll be any issue, providing we can reserve our position on that. And
14 then there's just B, C, D and E, which I think are self-explanatory.
15 JUDGE MAY: Let's look at them. B, the objection is that
16 Mr. Fleming gave evidence for the Prosecution and these are his
17 handwritten notes.
18 MR. NICE: Correct.
19 JUDGE MAY: Can you remind us if there was any discussion of those
20 notes at all?
21 MR. NICE: No. The odd thing about this witness was that he gave
22 evidence, and I seem to remember with a whole half a day available to
23 cross-examine him which had been timetabled in, and the Defence said they
24 didn't want to ask him any questions. It seems to me that if they didn't
25 want to ask him any questions, then his notes hardly have any value. They
Page 26654
1 haven't been put to him, and I can't see the possible purpose for adducing
2 them.
3 JUDGE MAY: Did he refer to them at all?
4 MR. NICE: I don't think so.
5 MR. SAYERS: I must say, Mr. President, it seems anomalous that
6 we're being criticised for not cross-examining a witness and saving time
7 in that regard. But if I may, with respect to Mr. Fleming's notes -- and
8 I just received this document today, so I'm just reacting off the cuff, if
9 I may -- there isn't any question about the authenticity of Mr. Fleming's
10 notes. They were produced by the witness. They were copied. Given the
11 fact that there was absolutely no dispute raised regarding authenticity or
12 accuracy, I can't imagine what the objection to the admission of the
13 exhibits would be. Exhibits similar to these have been admitted in the
14 past, and there's no reason why this exhibit should not be treated in the
15 same way.
16 [Trial Chamber confers]
17 JUDGE MAY: We think there's force in the Prosecution objection.
18 The fact is this, that if you want to put a witness' notes in, one who is
19 giving evidence, then he must have the opportunity to comment on them.
20 And this witness not having had the opportunity, we think it wrong to
21 admit them. So that exhibit will be excluded. Yes.
22 MR. NICE: Your Honour, the next category, subparagraph C, relates
23 to expert evidence admitted without experts themselves giving evidence. I
24 pause to add, I propose, theoretically there is one other way that expert
25 evidence could be properly put into evidence, that is if it's put in
Page 26655
1 cross-examination to an expert of the other side and the expert adopts
2 it. But that hasn't happened with any of this material.
3 One is a ballistics report by the Dutch Ministry of Justice, and
4 the other is a compilation of sociological articles which, in each case,
5 should have been taken through an expert if one was properly called or, at
6 the very least, been put through with an expert.
7 The Chamber will recall in this regard, and in relation to the
8 sociological articles that the Prosecution witness, John Alcock, who the
9 Chamber has seen twice, was initially dismissed in a rather -- in an
10 unhappy way by Mr. Stein declining to cross-examine him. The witness came
11 back, the Chamber will recall, to give, it may be thought, extremely
12 considerable assistance in relation to the experts called by the Defence.
13 But the reality is that there were opportunities with their own witness or
14 with Dr. Alcock to call this material. In each, this opportunity was not
15 taken. I can't see how the material can be of assistance.
16 MR. SAYERS: The report that is Exhibit D324/1, Tab 13, I think I
17 recall what that is, Mr. President. It's a report that was introduced by
18 the Prosecution in the Kupreskic case, specifically establishing the
19 absence of any fire accelerant substances in Ahmici.
20 Now, the objection that the Prosecution makes, just looking at the
21 document that I see here, is that they've not had the opportunity to
22 question the expert. Well, Your Honour, it was the Prosecution's own
23 expert in Kupreskic and the Prosecution's expert was, in fact,
24 cross-examined in Kupreskic. If the Court thinks that it needs the
25 Kupreskic expert testimony too, then that should be -- if the Prosecution
Page 26656
1 insists upon that, then we wouldn't object to the admission of that
2 testimony.
3 But the document is clearly relevant. It deals with issues that
4 bear on some contentions made in the Prosecution's case, and we would
5 respectfully submit that it's admissible and should be admitted.
6 JUDGE MAY: It was fire accelerant in one house. I remember the
7 evidence. It was one house in which a family had been killed and the
8 bodies burned. And if this is it, then the investigators went to look at
9 it.
10 MR. SAYERS: With respect to the ballistics, Mr. President, if I
11 remember correctly, there's been some suggestion that large calibre
12 machine-guns were used in Ahmici and a significant quantity of spent shell
13 casings or spent bullet cartridge casings were found and analysed by the
14 expert and all found to be 7.62 millimetre, fairly standard infantry
15 ammunition and nothing out of the ordinary there.
16 With respect to D329/1, my recollection was this was simply a
17 compilation for the Court's convenience of the articles that were referred
18 to in the expert witness report prepared by Dr. Mestrovic, and that's the
19 reason why we put them in there for the Court's assistance.
20 [Trial Chamber confers]
21 JUDGE MAY: We think, given the source of the first expert report
22 which is referred to, particularly if Mr. Sayers is right and it was a
23 report from Kupreskic, but given the source of it, in any event, and the
24 fact that it goes to background matters, we will admit. As for the
25 sociology articles it reviews, well, for what they're worth, we'll admit
Page 26657
1 them.
2 Yes. The death certificates.
3 MR. NICE: Yes, I'm afraid I can't follow the ground of admission
4 or reported admission of these. They seem to be death certificates and
5 pictures, and I'm not sure how the connection is made or what the
6 relevance is, can see what the relevance is. I'm afraid I can't follow
7 those two.
8 MR. SAYERS: Mr. President, I believe, but I'm not sure without
9 checking, but I believe that these death certificates and pictures were
10 death certificates relating to the family of this lady, Witness DA, who
11 testified in our case, who were executed before her eyes in Kakanj. I
12 cannot seriously believe that the Prosecution would insist that we would
13 distress the lady further in showing her pictures of her executed husband
14 and three sons and death certificates of them. There is no contest as to
15 authenticity as to these items, and they are certainly admissible and
16 should be admitted.
17 MR. NICE: Your Honour, it's quite right there is no contest.
18 What I can't do is draw the connection between one and the other. They're
19 just pictures. In any case, the relevance is limited, as has been
20 explored. It's just going to excite emotions, really.
21 JUDGE MAY: That's not a problem, the latter.
22 MR. NICE: If they are connected in some way that makes it clear
23 what they are, then of course we don't object. There simply is no tie
24 that I am able to find.
25 JUDGE MAY: For the moment, we'll admit them.
Page 26658
1 MR. NICE: And the last matter is the wholesale admission of
2 excerpts from books in the course of the judgement on outstanding
3 exhibits. At the end of our case, I think there was an extract from a
4 book by Major Payne. It was an extract involving Mr. Kordic, and Major
5 Kent Payne wasn't a witness, and his comments certainly weren't
6 admissible. What we have here are extracts, selected extracts from books.
7 JUDGE MAY: Give us an idea of what they are.
8 MR. NICE: I can't see their relevance. They are out of context
9 or they may be out of context. Sorry, I've opened the wrong file. Here
10 we are. One, for example, is a book "General Alagic's War Memoirs."
11 Another is a book by a somebody called Begic, "From Vance's Mission to the
12 Dayton Agreement." It sounds as though it might be nearer to being some
13 other kind of expertise or journalist report. I don't know what.
14 Then there is another one, called the Sanu Memorandum, which is a
15 book about Serbs, as far as I can see, but I might be wrong about that.
16 The whole basis of relevance of these documents is entirely unclear and
17 they are simply extracts from books. That's it, really.
18 MR. SAYERS: I don't know, in all candor, that I have got too much
19 to say about that, Your Honour. They are not central matters, admittedly,
20 but they are -- these books certainly cover background matters that might
21 be thought by the Trial Chamber to be helpful, and the extracts can be
22 taken for what they are worth or discarded in their entirety. But we
23 think they will be fairly helpful. They all relate to background matters
24 and there is not a single extract that contains any reference, as far as
25 I'm aware, to any contentious matter. If I am wrong about that, I'm sure
Page 26659
1 I will be quickly corrected. But with respect to the book entry that the
2 Prosecution talked about, obviously that was excluded for an entirely
3 different reason, as it's clear from the recitation that you've been given
4 by the Prosecution.
5 So we think they are background matters that may be helpful and
6 there's nothing in the least that is controversial.
7 [Trial Chamber confers]
8 JUDGE MAY: We have more than enough material in this case without
9 books of doubtful relevance. Yes.
10 MR. NICE: I repeat my thanks to Ms. Kind and, I'm sorry, the
11 legal officer for the Kordic Defence, I'm sorry, I've forgotten her last
12 name.
13 That leaves the questions of cross-examination or examination of
14 the two witnesses called by the Chamber. We've presented, I think, our
15 opposing views substantially already and I would have, I think, one more
16 point, if I may do so.
17 In the Blaskic case, witnesses were called by the Chamber without
18 their having been initially identified as witnesses for one side or the
19 other. Although I don't know the full details, I think they came to Court
20 to some degree isolated from one party or the other. They gave evidence
21 in accordance with questions, I think, asked by the Chamber. So that then
22 constituted the evidence in chief and there was then cross-examination, I
23 think first by the Prosecution and then by the Defence.
24 That position is to be contrasted with the position here. That's
25 to be contrasted with the position here where these witnesses were
Page 26660
1 originally identified by, and therefore no doubt were in contact with and
2 in correspondence of one kind or another with the Defence, who will
3 therefore know what they were expected or intended to say.
4 That, for reasons I have already advanced, would suggest that the
5 Defence should go first. They know what they want to produce. They have
6 the advantage of dealing with it in cross-examination rather than being
7 restricted by the rules of examination-in-chief, and they may also, of
8 course, have the continuing advantage of being able to contact and speak
9 to these witnesses for I am not aware that any bar has been placed on
10 their doing so. So the logical course, in our respectful submission,
11 would be for them to go first in this case and for us to come second.
12 Before I sit down, by oversight and overlooking manners, I should
13 have said twice that we are equally grateful to Carline Ameerali, who sits
14 before you, for her assistance in dealing with exhibits. She gave us her
15 time and effort very generously.
16 MR. NAUMOVSKI: [Interpretation] Thank you, Your Honours. I shall
17 be very brief. My view is quite the opposite. I believe that it is the
18 Prosecutor who should cross-examine first. Regardless of who intended to
19 call these witnesses or not, they will be called by the Court and they are
20 so-called Court witnesses.
21 The Trial Chamber also decided on how their examination-in-chief
22 will take place. These will actually be their transcripts from the
23 Blaskic case, their earlier testimonies. So the Court has already ruled
24 about this, that is to say, on the examination-in-chief, so it seems to me
25 quite natural, like in all other systems where the Court calls the
Page 26661
1 witnesses, that the Prosecutor should examine those witnesses first. I
2 think that it is a natural right enjoyed by the Defence in these systems
3 that I am referring to after the Prosecutor.
4 For example, in the system I come from, it is the Court that calls
5 the witnesses and then the witnesses are examined by the Prosecutor and
6 then by the Defence. I don't want to take up too much time. I think that
7 it is the natural right of the Defence to examine the so-called Court
8 witnesses after they are examined by the opposing party, in this
9 particular case, the Prosecution. Of course, in this way, automatically
10 we shall save time, most probably, because if the Prosecutor covers most
11 of the ground that we wish to cover, then perhaps we won't even have an
12 additional number of questions. If we cover the same subjects, then
13 perhaps we won't even put certain questions, and we will save a lot of
14 time that way. Thank you.
15 JUDGE MAY: Mr. Kovacic.
16 MR. KOVACIC: I agree with the Kordic Defence and I have nothing
17 to add on that.
18 [Trial Chamber deliberates]
19 JUDGE MAY: We can see no good reason from departing from what we
20 take to be the usual procedure in relation to Court witnesses, and the
21 proper procedure, which is the examination-in-chief having been concluded,
22 which it would be by the introduction of the transcripts, that it is for
23 the Prosecution to go first, and then the Defence to have the advantage of
24 going second. That is the system in a great many countries, it seems to
25 me the fairest system, and one we shall adopt here.
Page 26662
1 MR. NICE: As the Court pleases. And, of course, the evidence
2 which stands as evidence-in-chief was evidence which came from a different
3 case and with a different focus, and I would respectfully suggest that the
4 Prosecution's right of cross-examination can't be narrowly curtailed by
5 reference to that area of evidence.
6 [Trial Chamber deliberates]
7 JUDGE MAY: We agree with that, but there shouldn't be too far
8 wide-ranging a remit.
9 MR. NICE: No, of course not. Your Honour, if that's all that the
10 Court had on its list of things to be done --
11 JUDGE MAY: There were just two matters I wanted to touch on, if
12 it's convenient. One is that the Defence are to tell us about ECMM
13 documents, if they're in a position to do so.
14 MR. SAYERS: The ECMM has produced, by way of CD-ROM, documents
15 that are pursuant to the Court's order. I've been through them. The
16 production is deficient in several regards and we're looking at the
17 situation to see if further action is necessary. But with respect to the
18 approximately one foot of documents, there are a large number of documents
19 that would have been extremely useful, we think, for the Trial Chamber
20 during the cross-examination of various witnesses, and we propose, with
21 the Court's leave, by this Thursday, if I may, to present to the registrar
22 an additional package of separately-indexed exhibits from those
23 documents. And we will also be submitting at the same time, I hope, if we
24 can get it done, the package of additional documents produced recently by
25 the headquarters of UNPROFOR Kiseljak, if that's acceptable to the Court.
Page 26663
1 JUDGE MAY: That too next week?
2 MR. SAYERS: I think, Your Honour, I can have those ready by
3 Friday before I leave. Thank you.
4 JUDGE MAY: Thank you. And perhaps the Prosecution would react to
5 those documents when they get them.
6 MR. NICE: Indeed.
7 JUDGE MAY: The only other matter is the Zagreb documents. I know
8 you've got to the 30th of October. I was wondering what the prospects
9 were of advancing that, at least as far as possible.
10 MR. NICE: Well, first of all, we are advancing it as far as
11 possible on a production-of-material-to-the-Defence basis, and we always
12 have been. We will certainly need until that date to conclude our
13 researches and the production of statements and so on, and we've
14 timetabled ourselves to that date. We are doing our best to get material
15 as rapidly as possible and we'll serve everything we get as soon as we
16 can.
17 There is an outstanding issue on an ex parte basis, and I know the
18 Chamber is not going to be constituted or capable of being constituted
19 after today, and that, of course -- well, I need say no more, but the
20 Chamber will realise the extreme urgency that we perceive attaches to that
21 issue.
22 JUDGE MAY: Yes, Mr. Kovacic.
23 MR. KOVACIC: [Interpretation] Perhaps we move into ex parte. I
24 just have two short technical issues. Just a minute, please.
25 JUDGE MAY: Before the ex parte.
Page 26664
1 MR. KOVACIC: Before ex parte.
2 JUDGE MAY: Yes. Yes, Mr. Kovacic.
3 MR. KOVACIC: [Interpretation] A few days ago, the Trial Chamber
4 refused to admit document Z692.2, and the original did not have to be
5 produced by the Prosecutor. This is a document which allegedly has a note
6 on the back of the document. I asked the Prosecutor for the original, to
7 see the original, but again I got a copy, that is to say, a copy once
8 again of the front page and the back. We don't think that this document
9 is authentic, like many others aren't, but I'm not going to go into that
10 today. I would simply like us to take care of things. It is so difficult
11 to handle all these auxiliary matters and documents. Could the Prosecutor
12 please say whether they have this or not, and let's finally take care of
13 this rather than leave it outstanding all the time.
14 May I move on now to this other matter I wish to refer to? On the
15 12th of October, in relation to the formal statement made by Colonel
16 Morsink, the Trial Chamber gave this Defence the right, the option, to put
17 it that way, to seek the right to cross-examine within five days if we
18 deemed this necessary. I would like to avail myself of that option now,
19 so could we please have Colonel Morsink brought for cross-examination?
20 JUDGE MAY: Yes. Can that be done, Mr. Nice?
21 MR. NICE: So far as I know, it can. He was already timetabled
22 for a particular day by the Chamber. We'll confirm his availability on
23 that day.
24 As to Exhibit 692.2, I'm grateful to Mr. Kovacic for reminding me
25 of something I had, I think, temporarily forgotten. As I explained to
Page 26665
1 him, the document we have is indeed a copy. It's a document copied on
2 both sides, that is to say, reflecting an original that is written on or
3 typed on on both sides. Like all the documents we have at the moment, it
4 is a copy. I would investigate further and see what, if anything else, I
5 can do about it.
6 JUDGE MAY: Thank you.
7 MR. NICE: There is one other matter I can report on happily. The
8 Defence in Kordic wanted access to closed session material in relation to
9 a particular witness, whom we needn't identify any further, in the
10 Kupreskic case. We undertook, at apparently short notice, an exercise in
11 relation to all that material, and we've completed the exercise. We've
12 identified, on the most generous basis, all the material that could
13 conceivably fall within Rule 68, and --
14 [Prosecution counsel confer]
15 MR. NICE: Yes. We are in a position to make the material
16 available, insofar as it's open to us to do so, I think this afternoon, on
17 the one hand, certainly, by filing the necessary application to the
18 Chamber, which of course the Chamber then has to deal with in relation to
19 closed session hearings, and in provision of statements that may
20 conceivably be Rule 68 otherwise. So that's effectively done, but it does
21 require, I'm afraid, further consideration by the Chamber. And I'm loath
22 to have to mention that, but that's the reality.
23 [Trial Chamber confers]
24 [Trial Chamber confers with legal officer]
25 JUDGE MAY: Yes, Mr. Sayers.
Page 26666
1 MR. SAYERS: Two short matters in open session and then one short
2 matter in private session, Mr. President, if I may. Could we request
3 copies of any witness statements for Witness numbers 21 and 22? We don't
4 have those yet, and they should be provided pursuant to Rule 66(A)(ii).
5 Second, some time ago we requested a copy of a transcript of an
6 April 13th, 1999 session, apparently in the office of the presidency of
7 the Republic of Croatia, relating to the witness who is scheduled to give
8 testimony on November 13th, and I wonder if we could be provided with that
9 before the end of the week, if possible.
10 And if I could just go into private session for two minutes.
11 [Private session]
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Page 26667
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10 --- Whereupon the hearing adjourned at 1.42 p.m., to
11 be reconvened on Monday, the 13th day of November
12 2000, at 9.30 a.m.
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