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  1. 1 Thursday, 3rd June, 1999

    2 (Open session)

    3 (The accused entered court)

    4 --- Upon commencing at 11.51 a.m.

    5 THE REGISTRAR: Good morning, Your Honours.

    6 Case number IT-95-14/2-T, the Prosecutor versus Dario

    7 Kordic and Mario Cerkez.

    8 JUDGE MAY: First of all, my apologies to all

    9 that I wasn't here at 11.00. Unfortunately, the other

    10 case went on until past half past, and my thanks to the

    11 interpreters particularly, because unfortunately there

    12 was not another team, apparently, available here, and

    13 the result is that they have been at it since 9.00 this

    14 morning and have barely had a break. So thank you very

    15 much for being understanding.

    16 We have your argument for procedural

    17 possibilities, as it's described, Mr. Nice. I have to

    18 confess that I've only read it between the hearings,

    19 which means I haven't given it the attention it

    20 deserves, but I have to say my first impression is that

    21 these are interesting ideas which are put forward here

    22 and ideas which, it may be, should be pursued. But the

    23 question is whether this is the appropriate time, in

    24 the middle of a trial, to start pursuing them and

    25 whether these aren't really matters for a plenary where

  2. 1 the Rules can be thoroughly reconsidered and see

    2 whether this approach is the appropriate one for the

    3 Tribunal.

    4 The notion, for instance, and perhaps we

    5 should get away from saying a common law or a civil law

    6 remedy, perhaps we shall try and say a Tribunal remedy,

    7 it may be, in due course, for the Chamber to be the

    8 decider of which evidence is called, which witnesses

    9 are called and which aren't based on a dossier. But

    10 that would require work at a preliminary stage, and it

    11 may be by the pre-trial judge, I would have thought, as

    12 the appropriate person to do it.

    13 MR. NICE: I hope to persuade you, not only

    14 that they are interesting propositions but that they

    15 are now necessary for this case and that they lie

    16 within your existing powers and, therefore, don't need

    17 any plenary procedural changes.

    18 If, before I take you through as swiftly I

    19 can the argument, I can indulge myself with this

    20 personal observation: It takes a long time for those

    21 of us with established histories in one particular

    22 legal system to cast it off and either to understand

    23 the other principal legal system operating in the world

    24 or, alternatively, to cast both off and simply look at

    25 the Rules of the Tribunal and say, "What do these Rules

  3. 1 provide?"

    2 I venture to suggest anecdotally that the

    3 heavy preponderance of lawyers working here, coming

    4 from America and from either the United Kingdom or the

    5 Commonwealth or former Commonwealth nations of the

    6 United Kingdom, has led to an unjustified presumption

    7 that things are to be interpreted according to common

    8 law notions when, in truth, there is no such need or

    9 requirement.

    10 I found it difficult, although I think I've

    11 eventually achieved it, to meet and understand the

    12 different approach of the civil lawyers, particularly

    13 in relation to what we so easily from the common law

    14 think of as hearsay, and that distinction between us is

    15 quite important. It is a distinction that is

    16 recognised, I think, both in the judgement in Tad on

    17 hearsay and the majority decision in Aleksovski on the

    18 admission of evidence, and I suppose the distinction

    19 can best be dealt with in this way, unless I'm wrong:

    20 To the civil law, everything can be evidence that a

    21 witness can produce, whether it's the bloodied knife

    22 from the scene of the crime, the breathalyser reading

    23 which is part fact, part hearsay, his own memory of

    24 what he saw, or a piece of paper written by the

    25 deceased or the accused or a written piece of paper or

  4. 1 witness statement, as it would be described, from

    2 someone else. In the civil system, there is no

    3 categorisation of the evidence that a witness can bring

    4 to the court.

    5 We, in the common law system, are so schooled

    6 by rules about hearsay that we tend to think otherwise,

    7 and we tend to think that it is only firsthand material

    8 that is evidence and not anything else, and that simply

    9 is wrong. If that is a misconception by common law

    10 lawyers, then it has to be set aside, as I respectfully

    11 suggest the Court did in the majority decision in

    12 Aleksovski, both by its language in the first part of

    13 its judgement and in its approach, it recognised that

    14 everything that a witness can bring is evidence.

    15 Accordingly, what I am proposing by way of a

    16 approach to the village attack problem at this stage is

    17 well within the Rules of the Tribunal. I recognise

    18 Judge Robinson's dissenting judgement in the Aleksovski

    19 case and certainly understand his concern about the

    20 production of material that might, in another system,

    21 rank as hearsay, production that wasn't achieved, in

    22 his judgement, in the Aleksovski case. We've met that

    23 problem by our proposal.

    24 So can I now run through, as briefly as I

    25 can, my argument with those preliminary observations in

  5. 1 mind, asking that at all stages, if this be right, we

    2 recognise --

    3 JUDGE BENNOUNA: (Interpretation) One moment,

    4 Mr. Nice, please.

    5 MR. NICE: Yes.

    6 JUDGE BENNOUNA: (Interpretation) To be able

    7 to move ahead, I think that, as Judge May understands

    8 it and as I personally understand it as well, we

    9 thought that this was a general proposal you were

    10 putting forward as to the way trials should be

    11 conducted so as to make sure that a trial, in

    12 particular, be as smooth and quick as possible and be

    13 held under such circumstances as to best render

    14 justice.

    15 However, if I understood you properly, there

    16 are general considerations, and that is one thing. We,

    17 as judges, can work on such premises. We are members

    18 of this Tribunal, and we can do that. There is also a

    19 proposal dealing with our case, with this instant

    20 case. It deals more specifically with the attacked

    21 village problem, what we called not so much evidence

    22 related to direct counts, as it were, but rather

    23 anything relating to a certain number of criminal

    24 conducts or of criminal acts, rather, which took place

    25 in various villages of Central Bosnia. What you are

  6. 1 coming up with relates more to that, and it would

    2 relate, in your categorisation, to category E.

    3 I think that is different. Both the

    4 Presiding Judge and myself do not have to wait until

    5 the plenary in order to decide, so it is in that

    6 specific setting, anything dealing with attacks on

    7 villages. This is a procedural proposal which would

    8 tend to relate to a number of evidence as to the

    9 general background of the indictment, the context, the

    10 general context of the indictment. In such a case, I

    11 think we would be willing to see that more directly.

    12 For instance, to have the statements, witness

    13 statements, and after hearing the Defence and the

    14 Prosecution, we would be in a position to decide among

    15 ourselves, taking into account the statements and,

    16 within the frameworks set by those statements, to

    17 decide which is the relevant testimony to be heard by

    18 the Court, taking as a starting point the statements,

    19 but also the investigator's testimony itself.

    20 Did I understand you well? Sorry for

    21 interrupting you, but this would make it possible for

    22 us to better specify the foundation of this discussion,

    23 and we could then move ahead and leave it to you to

    24 present the rest of the argument.

    25 MR. NICE: Indeed you understand me, I think,

  7. 1 perfectly, if I may say so, and I only open with some

    2 general observations partly in response to Judge's

    3 May's general observations about procedure.

    4 You are quite right. What we propose is a

    5 solution to the problem in relation to villages. Of

    6 course, it may have more general application, but I

    7 have already explained what my intentions are in

    8 relation to the balance of the evidence, and I'm not

    9 intending to change my position on that at the moment

    10 because I'm confident that we can deal with the direct

    11 evidence about Kordic-Cerkez in a conventional but

    12 accelerated and compacted way and a way that will bring

    13 material to the Chamber at a healthy and proper speed.

    14 So, yes, what I am proposing is a solution to

    15 the real problem that arises from the villages and

    16 which was encapsulated by Judge May at the end of the

    17 last discussion when he asked me, "Well, what could be

    18 done if the Defence put everything in issue?" And I

    19 replied, I think, to the effect that there would either

    20 be a long trial or procedural innovations.

    21 I have dealt with paragraph 2 which says that

    22 subject to change, I will stick to what I have said

    23 about above- and below-the-line witnesses, although we

    24 remain extremely concerned about any formulaic

    25 restriction on evidence to be called at this stage and

  8. 1 indeed say it is not necessary and that the appropriate

    2 course is to trust us because we are doing everything

    3 we can to move swiftly and compactly and the matter can

    4 be kept under review.

    5 Paragraph 4, I make the point that perhaps I

    6 too easily acknowledged that 300-plus statements was

    7 excessive. In truth, if that is the material that

    8 proves this case, then it should be available to the

    9 Tribunal, which is not to say that it all has to be

    10 called live. If the Chamber is capable of dealing with

    11 a case of this scale -- and, of course, it is -- then,

    12 of course, it is capable of dealing with the statements

    13 that cover the case, and all that is standing in the

    14 way of the Chamber having access to the totality of the

    15 material is the approach of the Defence who stand to

    16 benefit from the Chamber's anxiety about the number of

    17 witnesses. Of those 330-plus, over 150 relate to the

    18 village attacks, and as I said on an earlier occasion,

    19 if summarised and accepted, the material about the

    20 village attacks could be read to the Court in an hour

    21 or so.

    22 The common law system is imperfect. Many

    23 here are not fans of it. It's fun for lawyers, but

    24 it's not necessarily the best system for this Tribunal.

    25 I have made the point about the difficulty,

  9. 1 both Americans, for their constitutional reasons, and

    2 the English for other reasons, have to shuffle off

    3 their experience. We've got to do that and we've got

    4 to remember that 89(B) of our Rules says that:

    5 "In cases not otherwise provided for in this

    6 Section, a Chamber shall apply rules of evidence which

    7 will best favour a fair determination of the matter

    8 before it and are consonant with the spirit of the

    9 Statute and general principles of law."

    10 We say that the overriding practical

    11 principle for this case is that there should be as much

    12 evidence as possible available and that the Court

    13 should not cut witnesses simply because the Defence are

    14 able to threaten an overlong case. Indeed, I come on

    15 to whether the Defence cooperate in my next paragraph,

    16 but I ask this rhetorical question: Might not the most

    17 effective way of achieving a shortening of this trial

    18 be to say to the Defence, "Yes, very well. Mr. Nice

    19 can call all 375 witnesses in the conventional common

    20 law system and we'll start sometime in October and

    21 finish when we finish"? That would drive the Defence

    22 to reality as nothing else, and it is only because they

    23 perceive that, by blocking, they can keep evidence out,

    24 that we are perhaps in the position we are.

    25 JUDGE MAY: Well, I don't think we're going

  10. 1 to improve matters by a confrontational approach. I

    2 mean, it may be frustrating for the Prosecution that

    3 the Defence do not agree to anything. But this is

    4 primarily, at this stage, a matter of how the case is

    5 presented which, as you have observed elsewhere, is a

    6 matter for the Prosecution and the Tribunal.

    7 MR. NICE: Yes.

    8 JUDGE MAY: We have had a chance to read

    9 this, so I don't think there is a need to go through it

    10 all.

    11 MR. NICE: So be it.

    12 JUDGE MAY: But bear this in mind, that it is

    13 one thing to talk about the 300 statements, but it is

    14 the duty of the Prosecution to produce a case which is

    15 potentially capable of being tried within a reasonable

    16 time and also one which does not put an intolerable

    17 burden on everybody involved. It is particularly in

    18 that sphere that we are looking for the assistance of

    19 the Prosecution. I don't suppose for a moment that you

    20 haven't had those matters in mind, Mr. Nice, but it

    21 should be said publicly.

    22 MR. NICE: I certainly have them in mind and

    23 have done everything that I can to bring about that

    24 result.

    25 Dealing with the first point Your Honour made

  11. 1 about confrontation. I am not seeking to be

    2 confrontational. In the next paragraph, which I can

    3 summarise in this way, is to this effect: Under the

    4 common law system, there is no duty on Defence lawyers

    5 to cooperate. Indeed, their duty is, in reality, the

    6 reverse, because they are not there to help evidence go

    7 in against the Defence. Effective or de facto

    8 cooperation comes about by Rules, either the rules of

    9 the court in general or the specific rules and

    10 decisions of a Trial Chamber or by force of

    11 circumstance.

    12 Here, where nothing so far has been admitted

    13 at all, apart from a couple of dates, and where it is

    14 being said no statements may be read at all as if it is

    15 the right of the Defence to say that, and it is not

    16 their right, it is the Chamber's decision, there is

    17 little more that we, the Prosecution, can do so far as

    18 areas of evidence are concerned that need to be covered

    19 in some detail. That's why we make the proposal and

    20 take the approach that we do.

    21 And I say, well, if, for example, the Defence

    22 suggestion that we should be rationed as to witnesses

    23 were to be allowed or followed or imposed by the Trial

    24 Chamber and, at the end of the case, the Defence are

    25 asked, "Well, you said there should be two witnesses

  12. 1 per village. Do you now admit that the crimes were

    2 committed?" They'd turn around, probably, and say,

    3 "No, you haven't proved it."

    4 So the common law system -- I'm now going to

    5 pass from that to our proposal directly -- just to

    6 remind the Chamber that we have now reached the

    7 position of reducing our witnesses' evidence in chief

    8 to as short a period of time as that evidence can take,

    9 either by having a statement that can be adopted or one

    10 that can be read or one that can be read as to most

    11 paragraphs but not all.

    12 I would respectfully invite the Chamber to

    13 consider taking that last course as the quickest and

    14 most appropriate method and taking to itself the powers

    15 which it has to require the Defence to say why certain

    16 paragraphs shouldn't be read and not just simply to

    17 accept paragraphs 10 onwards are in issue.

    18 I would also invite the Court to reflect on

    19 the cross-examination so far -- this is not critical

    20 because, in part, you are dealing with counsel who

    21 aren't experienced in the particular forms of

    22 cross-examination or who come from a culture where the

    23 general discrediting of witnesses, to no other specific

    24 purpose, is acceptable, and we have seen examples of

    25 that -- I am not criticising them, but for this Chamber

  13. 1 for this trial and with the need to get on, the Chamber

    2 can say to counsel before they cross-exam, perhaps out

    3 of the presence of the witness, "Well, now, what are

    4 you seeking to achieve? What's in issue here?" I

    5 venture to suggest that if we look back on the

    6 witnesses so far, effective cross-examination could

    7 have been achieved in a fraction of the time that has

    8 been taken, and the time taken is then, of course, part

    9 of the pressure facing all of us.

    10 I have set out, and I hope accurately -- and

    11 Judge Bennouna I'm sure will correct me if I've got it

    12 materially wrong -- the civil law system, as I am

    13 instructed by Mr. Lopez-Terres, himself a judge for

    14 many years, tells me it is, and the two-stage is the

    15 dossier, the function of the investigator, the right of

    16 the parties to say which witnesses they would like

    17 to -- one has to be careful not to use the word

    18 "witnesses" -- which makers of statements should

    19 become live witnesses in the case.

    20 It is clear that in the system that we have

    21 summarised here, the Judges, having those

    22 representations made to them, are able to rule what

    23 needs to be before them from a live witness and what

    24 can be taken into account providing it is read into the

    25 record from witness statements.

  14. 1 With that general approach, which is 3 and 4,

    2 in mind, we would propose that for the locations, a

    3 dossier is prepared.

    4 Now, Tulica is the one that we happened on as

    5 a first example, and Tulica is probably as big a binder

    6 as any except Ahmici, so the document that I physically

    7 hold in my hand is likely to be larger than the

    8 majority for a location (indicating). This, of course,

    9 contains not just witness statements but it contains

    10 maps and prior testimony. It is substantial but not an

    11 overwhelming document for experienced practitioners in

    12 the law to deal with.

    13 In any event, an investigator would make a

    14 statement summarising the effect of the investigation

    15 of all the material contained there. My best estimate

    16 is that the investigator's statement might be about ten

    17 size. My proposal is that the investigator would be

    18 called to summarise the effect of the material; he can

    19 then be cross-examined about the material, he can be

    20 cross-examined about the witnesses, the makers of

    21 statements; that person held a grudge against the

    22 defendant or may have done, those things are

    23 inconsistent, that person is known to have a drink

    24 problem, whatever it might be; the Prosecution could

    25 identify which of the statements -- which of the makers

  15. 1 of the statements it was proposing to call live, the

    2 Defence could make representations as to which they

    3 wanted to be called live, and I understand typically

    4 that if there was an excessive demand for live

    5 witnesses, then a Judge at the trial part of the civil

    6 process would say, "Well, the due administration of

    7 justice, the interests of justice say, no, that's too

    8 many. That issue isn't important enough. We'll deal

    9 with that on the written statements." It would then be

    10 for the Chamber to be addressed by the Defence, and the

    11 Chamber would decide which statements needed, in its

    12 judgement, to be called live; and providing other

    13 passages of the written statements, either relied on by

    14 one or other of the parties or relied on by the Judges,

    15 is read out so that it forms part of the public record

    16 and meets the principle of orality, then it can be

    17 relied upon in the judgement of the Court.

    18 Now, none of this offends any of our Rules

    19 because there is a witness producing the material,

    20 which is evidence, he can be cross-examined, and a

    21 number of witnesses may be called live. But what will

    22 have happened is that the Prosecution will have called

    23 perhaps one witness who might last an hour to present

    24 his report; might have called one or two witnesses who,

    25 under my present regime, might take an hour in chief or

  16. 1 less, half an hour; and issues could be identified

    2 between the Chamber and the parties as to which other

    3 witnesses would need to be called.

    4 It had occurred -- this is an impertinence,

    5 but I mention it in light of what Your Honour said

    6 about the pre-trial judge. If it was thought a

    7 sensible plan in general, the Chamber might, for

    8 example, decide that one of its number could and should

    9 consider a particular locality in more detail but not

    10 all three. That's a possibility that I mention for

    11 your consideration. But at the end of the exercise,

    12 what would be available for the Chamber would be the

    13 best and the most carefully identified and relevant

    14 parts of the total material on this particular topic,

    15 and it will not have taken very long.

    16 It is not unlike the position achieved in the

    17 case that we mention in the argument that Your Honour

    18 Judge May dealt with the contemporary historian.

    19 It is slightly different but it is not very much

    20 different.

    21 If you look at page 4 and just at the

    22 sidelined passages in the argument, 13 and 14 --

    23 perhaps start at the top of the page under (j):

    24 "(j) Thus, the Chamber can decide which

    25 providers of statements should be called to the witness

  17. 1 box, and which statements may be read in court.

    2 (k) The Defence remain able to comment on and

    3 to criticise the value of evidence that has come in the

    4 form of statements read out ..."

    5 Then paragraphs 13 and 14: Rule 90(G) says

    6 that:

    7 "The Trial Chamber shall exercise control over

    8 the mode and order of interrogating witnesses and

    9 presenting evidence so as to

    10 (i) make the interrogation and presentation

    11 effective for the ascertainment of the truth; and

    12 (ii) avoid needless consumption of time."

    13 Now, I have forecast --

    14 JUDGE BENNOUNA: (Interpretation) Mr. Nice, in

    15 paragraph 14, you tell us the following: "... Defence

    16 to identify contentious issues."

    17 What do you mean by that, for everything to

    18 be clear as to the contents of your proposal? Do you

    19 mean by that that the file you have just mentioned and

    20 that you would have prepared would be addressed by the

    21 Chamber to the Defence and that the Defence would be

    22 called to react to the file as regards attacks on

    23 villages, so as to say which are the facts of common

    24 knowledge, as it were, and when it comes to those

    25 attacks on villages, because some are not in question,

  18. 1 have been heard here in this case or are of common

    2 knowledge, and which are the facts that might indeed be

    3 in dispute, lead to arguments and about which the file

    4 is not sufficient, is that what you have in mind in

    5 that sentence of paragraph 14?

    6 MR. NICE: What I had in mind in that

    7 sentence is, perhaps, this: If, in the statements of

    8 witnesses, I'll call them witnesses, about an attack on

    9 a village, there is material identifying HVO patches,

    10 just postulate that, on the shoulders of some of the

    11 soldiers, the Tribunal might ask or, indeed, the

    12 Defence might volunteer that that is a matter in

    13 issue. Was it HVO soldiers? What were the patches, if

    14 any, worn by those committing the crimes? That would

    15 be an identified issue, and that would guide the

    16 Chamber in its response to what would, no doubt, be

    17 Defence submissions that those witnesses able to

    18 identify patches should attend, insofar as their

    19 statements were counter to the Defence case. There are

    20 other issues one could imagine, but that is what I had

    21 in mind. We've got the problem -- no, I won't go any

    22 further. That's the problem I had in mind. Excuse me

    23 one minute.

    24 If I've misunderstood you, Judge Bennouna,

    25 and if your concern is whether the dossier would be

  19. 1 with the Defence, certainly, it would be with the

    2 Defence. Indeed, the Defence has already, of course,

    3 all the statements already, and the additional

    4 material, maps and so on, will be provided to them just

    5 as soon as can be.

    6 Incidentally, I should say this, in respect

    7 of what is an important proposal by me: I think we

    8 could have identical copies of the dossier, that is, to

    9 match this, copied by the end of next week in

    10 sufficient quantities for the Chamber and for the

    11 Defence to consider them. Because they have maps and

    12 other things in them, it's not something that can be

    13 done literally overnight, but it can certainly be done

    14 by the end of next week.

    15 JUDGE MAY: That's the Tulica dossier?

    16 MR. NICE: That's right. Incidentally,

    17 again, just while I touch on the problem, if this

    18 approach is acceptable to the Chamber, and I very much

    19 hope that it will be, if it is acceptable, there would

    20 then be a rolling programme of preparation of dossiers

    21 in respect of the other locations, which is quite

    22 labour intensive, but I'm sure that we could accomplish

    23 it in time to meet available court time after the

    24 summer recess. The court will remember that the time

    25 until the summer recess is otherwise fully occupied by

  20. 1 witnesses already identified.

    2 JUDGE MAY: Just while you're dealing with

    3 that, witnesses who are in the first categories, not

    4 E?

    5 MR. NICE: Absolutely, yes. They are all

    6 witnesses in the first category. It's my intent to

    7 remind the Chamber, for the two following weeks, I have

    8 a couple more municipality witnesses who I hope to be

    9 able to take more swiftly, and I have a number of

    10 witnesses dealing with direct contacts with the

    11 defendants who I hope to be able to take very swiftly

    12 so that we can see just how swiftly we can properly

    13 proceed. After the four-week break in the sittings,

    14 apart from dealing with Mr. McLeod, whose

    15 cross-examination is outstanding, I hope to be able to

    16 deal with experts and then move on to that other

    17 category of above-the-line witnesses, British

    18 Battalion, ECMM, and similar, to occupy what is, I

    19 think, a two-week or three-week session between then

    20 and the first week of August.

    21 So the time between now and August is already

    22 full in our plans with witnesses who can give very

    23 helpful and specific evidence, and it will come as no

    24 inconvenience to the Chamber, should this be its

    25 choice, to defer until September or October or whenever

  21. 1 the evidence about the localities, particularly if it

    2 can be presented in a way that's both full and

    3 convenient.

    4 JUDGE MAY: It would be convenient to have a

    5 summary at the beginning of those dossiers of what's in

    6 them.

    7 MR. NICE: Yes, absolutely. The proposal is

    8 that the investigator, who will be the witness, will

    9 prepare a statement summarising it, and I think I said

    10 that our best estimate for Tulica is that the witness

    11 statement will be about ten pages.

    12 The Defence have, of course, had a summary

    13 for a year and a half, although coming with the

    14 statement of facts, which is probably about half a

    15 page, and that's been repeated in the second invitation

    16 to make admissions that I served earlier this year, and

    17 it is one of the annexures to our pre-trial brief.

    18 There is already a very, very quick summary of Tulica

    19 available for you.

    20 (Trial Chamber confers)

    21 JUDGE MAY: Yes, Mr. Nice?

    22 MR. NICE: I'm reminded that I haven't told

    23 you specifically that, of course, in respect of any

    24 village location, we will, of course, seek to call one

    25 live witness -- an investigator to summarise the

  22. 1 dossier, and then one live witness, but that won't

    2 alter the time very much.

    3 JUDGE MAY: Yes. There is a robust

    4 prosecuting attitude which would be to say, "We are

    5 calling this evidence and we've called enough, and

    6 we're not going on repeating the same evidence."

    7 MR. NICE: We are certainly robust enough to

    8 do that if that's what's required of us. But at the

    9 moment, the suggestion is that we should only call one

    10 witness or two, and the Chamber's recurring anxiety

    11 about time puts considerable pressure on us. Our

    12 concern is that, in respect of these particular

    13 localities, simply one witness or two may not paint the

    14 picture with the clarity required for the charges to be

    15 proved, and our further concern is that the time being

    16 taken, not necessarily in chief, by the evidence of

    17 witnesses is so long that that adds to the pressure on

    18 all of us.

    19 Our underlying expectation is that in

    20 reality, very little of what is revealed in the

    21 material about the villages will ultimately be in

    22 dispute, much as in Blaskic. Everything was disputed

    23 and argued over for weeks, and then the defendant

    24 walked into the witness box and acknowledged a great

    25 deal of what was being alleged, in general, against

  23. 1 him, that it was crimes and so on. We want to avoid

    2 that position by identifying issues and laying before

    3 you exactly what is material.

    4 I've forecast, at page 5 of my document, some

    5 of the arguments that may be raised, but it's worth

    6 bearing in mind that at Nuremberg, this is paragraph 17

    7 and it hasn't been highlighted by a sideline, at

    8 Nuremberg, the trials there permitted witness

    9 statements to be admitted without the witness's

    10 presence before the court. Statements could be relied

    11 upon by the court in reaching their decision, as

    12 Article 7 of the ordinance that governed the subsequent

    13 trials to the actual Nuremburg trials shows. It's

    14 stated: "Tribunals shall not be bound by technical

    15 rules of evidence. They shall adopt and apply, to the

    16 greatest possible extent, expeditious and non-technical

    17 procedure and shall admit any evidence which they deem

    18 to have probative value. Without limiting the

    19 foregoing general rules, the following shall be deemed

    20 admissible if they appear to the tribunal to contain

    21 information or probative value relating to the charges,

    22 affidavits, depositions --"

    23 THE INTERPRETER: Could we ask counsel to

    24 slow down when reading, please?

    25 MR. NICE: "... and other statements." I'm

  24. 1 so sorry.

    2 "The Tribunal shall afford the opposing

    3 party such opportunity to question the authenticity or

    4 probative value of such evidence as, in the opinion of

    5 the tribunal, the ends of justice require."

    6 That was the uniform rules of procedure for

    7 those tribunals which provided in Rule 21 that

    8 statements by witnesses made in lieu of an oath may be

    9 admitted in evidence if otherwise competent and

    10 admissible and containing statements having probative

    11 value.

    12 Incidentally, just coming back to Your

    13 Honour's first point after the short pause, as well as

    14 being robust in what we wish to prove and need to

    15 prove, by summarising the evidence and calling one

    16 witness, we will be being both robust and saving a huge

    17 amount of time, on any reckoning, of alternative ways

    18 of presenting the material, and we will be providing

    19 the Chamber with an opportunity to cut straight to

    20 knowing what's in issue, if anything.

    21 I then turn to potential objections.

    22 Hearsay, I don't think I need repeat what will be

    23 well-known to the members of this Chamber about the

    24 decision in Aleksovski and the minority opinion.

    25 Over the page at page 6, again, not

  25. 1 sidelined, can I just say this: At our last discussion

    2 about hearsay in respect of a particular witness, there

    3 was an exchange between Your Honour Judge May and

    4 myself about the effect or significance of difficulty

    5 in getting a witness to court and its impact on the

    6 admissibility of hearsay evidence. That was a witness

    7 in respect of whom inquiries are still in hand to see

    8 if the better witnesses are available to us, and I

    9 suspect not, but I have not yet heard.

    10 That triggered my appreciation that there

    11 have been some developments in the law on hearsay in

    12 Canada which deal specifically with the significance of

    13 reasonable necessity by unavailability of a witness.

    14 I've had prepared, and I'm hoping to have finalised, a

    15 short paper dealing with that recent law, and I hope it

    16 will be helpful to the Tribunal if, at some stage, I

    17 have that distributed, so that if and when we come to

    18 another discussion about hearsay, we can take that law

    19 as having been considered and read, rather than

    20 disturbing the flow of evidence with specific

    21 argument.

    22 The right to cross-examine is another

    23 possible concern, but the right is not a right to

    24 cross-examine the makers of hearsay statements. From

    25 five lines down, as the Tribunal's jurisprudence

  26. 1 confirms, hearsay evidence is admissible, that is to

    2 say, it is evidence. The commentary on the

    3 International Covenant on Civil and Political Rights in

    4 a commentary says: "The formulation to examine or have

    5 examined takes into account the distinction between the

    6 various legal systems, in particular, between

    7 accusatorial and inquisitorial trials. Of particular

    8 importance here is that the parties are treated equally

    9 with respect to the introduction of evidence by way of

    10 interrogation of witnesses." So the right to

    11 cross-examine is not an objection, although, no doubt,

    12 it will be raised. There is the right to

    13 cross-examine, and I need say no more about that.

    14 At page 7, and I ask the Chamber perhaps when

    15 it deliberates to be sure that it considers the

    16 argument in full at some stage, but I turn to the

    17 Chamber's receiving and reading of statements before

    18 evidence is given, and I set out on page 7 various

    19 decisions of other Chambers which have taken the view,

    20 for various identified purposes, that witness

    21 statements may be read and, indeed, may be referred to

    22 in decisions.

    23 At page 8, can I deal with a discrete issue

    24 that is troubling? On several occasions, this is

    25 subparagraph 1 of paragraph D, the Defence say that

  27. 1 they will never accept witness statements, it is not a

    2 matter for them to decide, and their approach, I think,

    3 reflects the experience of the common law, giving them,

    4 they believe and it may well be right, almost that

    5 right. That is a matter for the Chamber.

    6 It is, I'm afraid to say, offensive and

    7 absurd to suggest general bad faith on the part of the

    8 investigators of this institution, and I make that

    9 observation because there have been such allegations

    10 made, and I want to suggest how they should be dealt

    11 with. It is hard to know what experiences would lead

    12 to the suggestion that police officers or others are

    13 driven into corruption by a preplanned urge to win, but

    14 the Defence persist in these attacks, and in their most

    15 recent letter -- I should say that these procedural

    16 changes have been forecast by an exchange of

    17 correspondence by me -- in their most recent letter

    18 where they refuse to admit certain witness statements,

    19 they say this: "These are not really the statement of

    20 witnesses but really an ad hoc compilation of what

    21 these witnesses supposedly discussed with the

    22 investigator, slanted in a manner to affect the

    23 accused's interests adversely. They are really the

    24 investigator's statements rather than those of the

    25 witness, strictly speaking."

  28. 1 That's not the first time they've been

    2 characterised in that way, and reference is made to the

    3 witness Mujezinovic who gave a statement which was

    4 signed and who, in cross-examination in Blaskic, said

    5 that he had sought some corrections and that those

    6 corrections had been denied to him.

    7 First of all, in light of the approach that

    8 is being taken by Defence counsel to that evidence, I

    9 intend to tender, which means to make available for

    10 cross-examination, the people who took the statement so

    11 that they can assert to the witness that which they

    12 seek to assert in correspondence, and we'll find out

    13 where the truth lies, anywhere between it being a

    14 completely wrong action by the investigator or the

    15 lawyer to a misunderstanding built on interpretation.

    16 Other investigators will be available, and if these

    17 suggestions are to be persisted in, they should, in our

    18 respectful submission, be put to the witnesses.

    19 The Chamber may notice that that particular

    20 piece of evidence, which concerned the description of a

    21 medical condition recorded in a statement but not

    22 adopted with any firmness by the witness in his

    23 evidence, he saying that that's not something which you

    24 could be firm about, or something to that effect, that

    25 apart, there have been either no or very few

  29. 1 cross-examinations built on inconsistencies or

    2 contradictions within statements.

    3 If it's really being suggested that this

    4 institution and all its indictments are built on

    5 statements of this kind, it's a matter that should be

    6 properly established with whatever consequences flow.

    7 But, nevertheless, I will make those witnesses

    8 available for cross-examination.

    9 Your Honours, that concludes really what I

    10 want to say about this proposal. In our submission,

    11 the ordinary conventional system, robust though we can

    12 be, will not serve your interests best if a general

    13 traverse that everything is in issue restricts the

    14 material available to you. On the other hand, the

    15 proposal we make contravenes no Rules of the Tribunal,

    16 fits with its established jurisprudence, and will

    17 enable you to have the best and fullest picture in a

    18 short space of time.

    19 JUDGE MAY: Mr. Nice, I just want to confer

    20 for a moment. We can go on, subject to agreement of

    21 the Trial Chamber, until about ten past one. We shall

    22 then have to adjourn because we have other matters to

    23 deal with this afternoon, another case.

    24 MR. NICE: I have just a couple of specific

    25 matters, as you'll see listed, but they can be dealt

  30. 1 with -- one of them has to be dealt with really today

    2 but ...

    3 JUDGE MAY: This is page 9.

    4 MR. NICE: Page 8 and 9. It is the witnesses

    5 to be called, one of whom is calendared for the week

    6 after next.

    7 JUDGE MAY: Perhaps you had better deal with

    8 that now then.

    9 MR. NICE: Yes, that is page 9, letter (c),

    10 seek to add four new witnesses to the witness list.

    11 Their names are given. They were listed and their

    12 statements summarised in the overview of witnesses

    13 filed on the 3rd of May. Their full statements were

    14 disclosed on the 17th, with translations on the 19th.

    15 Rule 66(A)(ii) does provide that statements

    16 of all witnesses who the Prosecutor intends to call at

    17 trial must be disclosed within the time period

    18 prescribed and that statements of additional witnesses

    19 shall be made available when a decision is made to call

    20 them.

    21 They thus permit additional witnesses, and

    22 I've always said that inquiries are continuing and

    23 further witnesses may be identified. There is also 73

    24 bis (E) that fits with that.

    25 The Chamber's order on the motion to compel

  31. 1 compliance of the 26th of February held that once the

    2 names of Prosecution witnesses have been disclosed,

    3 additions or supplements shall be limited to any

    4 possible new developments in the investigation and must

    5 never result in the rights of the Defence being

    6 circumvented.

    7 These Zepce witnesses, for that is the

    8 locality to which they relate, are new, only discovered

    9 in the course of continuing investigations after the

    10 witness list was submitted on the 5th of April (sic),

    11 interviewed by the OTP -- they may have been

    12 interviewed by others earlier -- but interviewed by the

    13 OTP in -- sorry, 5th of March, they were submitted.

    14 I'm grateful. I have misquoted. I'll start again.

    15 They were only discovered in the course of

    16 continuing investigations after the witness list

    17 submitted on the 5th of March. They were interviewed

    18 for the first time in April. Subparagraph 4, they add

    19 new and relevant testimony on the HVO attacks that

    20 occurred and the persecution and inhuman treatment of

    21 Muslims in the municipality. The named witness in

    22 subparagraph 4 can also testify about Kordic's links to

    23 Zepce.

    24 The Defence will suffer no prejudice from

    25 adding these witnesses to the list. They have received

  32. 1 their full statements and have had time to prepare and

    2 have been on notice that that named witness is one whom

    3 we would seek to call as an above-the-line witness in

    4 the next couple of weeks where we are dealing with

    5 evidence of witnesses having direct contact with the

    6 accused.

    7 The addition of these witnesses will not

    8 lengthen the duration of the trial in light of

    9 procedural mechanisms that may be implemented but,

    10 really, in any event, because whatever mechanism of

    11 evidence this trial adopts, if these witnesses are

    12 better than others who might have been called, then

    13 others will be dropped. There is no question

    14 otherwise.

    15 This evidence will add to what may be a

    16 convenient term, "the library" of relevant material

    17 available to the Chamber and, in the interests of

    18 justice, all relevant evidence which is obtained should

    19 be taken into consideration. But at this stage, I

    20 simply ask that this witness -- these four witnesses

    21 may be added and that this particular one thus may be

    22 brought here the week after next, I think it is.

    23 In the light of the time limit, perhaps if I

    24 leave the other procedural matters for another time ...

    25 JUDGE MAY: We will deal with this

  33. 1 application now and hear the Defence on other matters

    2 subsequently.

    3 Is there any objection to this application to

    4 add four new witnesses, the application being under

    5 Rule 73 bis (E)?

    6 MR. SAYERS: Speaking for the Defence of

    7 Mr. Kordic, Your Honour, there is an objection.

    8 For the last three months, the debate

    9 regarding the enormous number of witnesses listed by

    10 the Prosecutor has swirled around this Trial Chamber,

    11 and the Trial Chamber has issued several orders

    12 relating to the obligations of the Prosecutors to

    13 identify those witnesses, to use the language of Rule

    14 73 bis (B)(iv), that it intends to call.

    15 To facilitate a brief review of the number of

    16 orders that the Court has entered on this subject, I

    17 have taken the liberty, if the Trial Chamber might

    18 think it useful, of just summarising by date and

    19 content the actual orders that the Trial Chamber has

    20 actually entered relating to this matter, and I have

    21 them here for the Court's easy reference, if --

    22 JUDGE MAY: Yes. Hand them in.

    23 THE INTERPRETER: Could interpreters be

    24 provided with a copy as well? Thank you.

    25 MR. SAYERS: I'll go through the orders

  34. 1 chronologically very briefly, Your Honour, but let me

    2 just say that here we are, about seven weeks, six or

    3 seven weeks, into the trial, and we're confronted with

    4 another request that is not to contract the witness

    5 list or really streamline procedures but rather to add

    6 to it in what the Prosecutor has referred to in his

    7 opening statement or in its opening statement as a

    8 "subtle" case, and that certainly has proven to be the

    9 case during the last seven weeks. Initially the

    10 witness list, actually, Your Honours, by my count, the

    11 initial list was 361 disclosed witnesses together with

    12 an additional seven non-disclosed witnesses, whose

    13 identities we don't know, so that's 378, and actually,

    14 it's not simply four more witnesses that they seek to

    15 add to the witness list, as far as I understand it.

    16 Let me just say, we've been the beneficiaries every day

    17 of this trial, with today being the only exception, of

    18 receiving significant quantities of new statements.

    19 Those have actually continued beyond May the 17th.

    20 I'll give you two examples.

    21 These are two receipts that we received three

    22 days ago. Fifty-two statements, Your Honour. And then

    23 yesterday we received another receipt for ten

    24 additional statements, including two other witnesses,

    25 Mr. Hajrudin Indic and Mr. David Pinder, who

  35. 1 don't appear anywhere on the witness lists that we've

    2 been given so far, and these are statements that were

    3 taken as early as three days ago by the OTP. So it is

    4 rather difficult to keep count of the number of

    5 witnesses, but it looks like you're dealing with a

    6 witness list which is at least 374 witnesses now, maybe

    7 more.

    8 I think it bears repeating, Your Honours, as

    9 the Court noted in its February the 26th order, that

    10 the original indictment here was confirmed on November

    11 the 9th, 1995, and the amended indictment was confirmed

    12 on September the 30th, 1998, so this Prosecution has

    13 been going on for at least four years in addition to

    14 the investigation that preceded it which, as we know

    15 from the evidence that has been given by one of the

    16 witnesses --

    17 THE INTERPRETER: Could counsel slow down,

    18 please?

    19 MR. SAYERS: As we know from the evidence --

    20 JUDGE MAY: Mr. Sayers...

    21 MR. SAYERS: Yes, Your Honour, I'll do my

    22 best.

    23 The investigation in this case has been going

    24 on since at least May of 1993, so this Prosecution

    25 essentially has been going on for six years, and the

  36. 1 point I'd like to make just before briefly going over

    2 the Court's orders is this: There comes a time when

    3 discovery has just got to stop, and I say that as the

    4 beneficiary of many of these last-minute deluges of

    5 additional material we're given in the middle of trial

    6 to continue to cope with, and that greatly restricts,

    7 Your Honours, our available time to consider other

    8 measures to cooperate with the Prosecution, such as

    9 admissions, which are things that perhaps should be

    10 worked upon, and we are working on those. We've tried

    11 to work on admissions relating, for example, to the

    12 core bundle of documents that's been presented to us,

    13 but they've been presented in such a way that it's very

    14 difficult to identify what they are, and only today I

    15 presented Mr. Nice with what we think is by Z number,

    16 by Prosecution Exhibit Z number, a comprehensive list

    17 of all of the core bundle, and we will be prepared,

    18 provided we can agree that that's the universal

    19 documents in issue, to agree upon stipulations and to

    20 articulate specific objections in order to accelerate

    21 the trial.

    22 We've also made proposals with respect to the

    23 third request for admissions regarding the preparation

    24 of a short, simple declaration of facts, rather than

    25 opinions and statements which are characterised, in a

  37. 1 way to accelerate, for example, the production of

    2 evidence regarding the shelling of Zenica on April the

    3 19th.

    4 The only point that I'm making is it's

    5 extraordinarily difficult, with this constant torrent

    6 of information with which we are confronted, to be able

    7 to think ahead rather than simply, you know, thrashing

    8 around to try to stay up with this tentacular case. It

    9 is very difficult, confronted with this constant deluge

    10 of new information, to be working on what we should be

    11 working on, and that is how to get this case into

    12 manageable proportions and really to talk about what

    13 this case is really about, which, as Your Honour

    14 observed yesterday, this is about war crimes and not

    15 other things like politics and so forth. But that's

    16 the amended --

    17 THE INTERPRETER: We apologise, but this

    18 really is too fast.

    19 MR. SAYERS: Very well. Let me just go

    20 through the Court's orders, if I may?

    21 On January the 13th, you set March the 11th

    22 as the date for a pre-trial conference and required the

    23 OTP to file a witness list as required by Rule 73 bis

    24 (B)(iv) by the date of that conference, March the

    25 11th. There was a hearing before the Trial Chamber on

  38. 1 February the 16th and inquiries were made of the

    2 Prosecutor as to whether all witness statements had

    3 been provided to us, and if they had not, would there

    4 be a substantial number or a small number, and the

    5 response was that whether there will be a limited

    6 number or a substantial number, I think there will be a

    7 substantial number.

    8 That is an observation that is noted with

    9 concern in several of the orders subsequently entered

    10 by the Trial Chamber, for obvious reasons.

    11 The Court noted in its February the 26th

    12 order that ...

    13 JUDGE MAY: We are saying that we've got

    14 this. If you just -- we've got your summary. If you

    15 just take us to the important points, please?

    16 MR. SAYERS: Well, the important point I

    17 think, Your Honour, is the April the 1st order, which

    18 is really where the Court had already granted two

    19 extensions to the OTP to provide to us witness

    20 statements. The Court had already previously noted

    21 that we should have been given these statements well in

    22 advance of trial, but on April the 1st, this Court

    23 said, "Any statements not so disclosed in compliance

    24 with the requirements of that order may be considered

    25 for exclusion during the course of the case. And

  39. 1 accordingly, the Court hereby instructs the Prosecutor

    2 to complete disclosure to the Defence of all other

    3 statements of witnesses it intends to call in this case

    4 by no later than the 17th of May, 1999." Now, I don't

    5 know how much clearer that order could be. And that,

    6 Your Honour, as I emphasise, represents about the third

    7 time, I believe, that extensions have been granted to

    8 the OTP to provide the Defence with these statements.

    9 Also May the 17th obviously is quite considerably into

    10 the trial.

    11 JUDGE BENNOUNA: Mr. Sayers, did you receive

    12 these statements on the 17th of May as is mentioned

    13 here by the Prosecutor?

    14 MR. SAYERS: With respect to the statement of

    15 Mr. -- well, without mentioning a name, I don't know

    16 whether any of these are going to be confidential

    17 witnesses so I don't want to run afoul of a protective

    18 order issue, but with respect to the first witness, the

    19 named witness in this submission, that was not provided

    20 to us by May the 17th. That statement apparently was

    21 taken on April the 11th, 1999.

    22 Now, Judge Bennouna, we had been provided

    23 with a purported short summary of what this witness was

    24 going to say, and that was included, I believe, in the

    25 overview of the witnesses that was provided to us on

  40. 1 April the 3rd.

    2 But insofar as the contention is made that

    3 somehow this witness is going to provide a crucial link

    4 between our client specifically and the specific crimes

    5 alleged, let me just read to you what the statement

    6 says. It says that this gentleman met Dario Kordic one

    7 time in 1991 where the division of Bosnia-Herzegovina

    8 was discussed in civilian attire. The next time he met

    9 Dario Kordic in 1992, where he wore a military uniform

    10 with a rank sign in discussion that Zepce should be

    11 part of Herceg-Bosna. The witness did not see Dario

    12 Kordic in 1993.

    13 If this is a critical witness on that linkage

    14 issue, two questions should be asked: First, why

    15 wasn't he interviewed earlier? Why weren't these

    16 statements provided to us by the time that the trial

    17 court ordered them to be provided to us? And secondly,

    18 given that, how could he possibly be described as a

    19 critical linkage witness?

    20 The same thing goes with respect to four

    21 other witnesses, Your Honour. We did not receive some

    22 of these statements until -- in Croatian, in a language

    23 which our client understands, until May the 21st, I

    24 believe, with respect to one of them. We received that

    25 statement in English on May the 18th. With respect to

  41. 1 Mr. -- well, one of the witnesses, there is a statement

    2 that we received in Croatian on May the 18th but we've

    3 never received an English version of it.

    4 So it seems to me that if the order is to

    5 mean anything, the order of April the 1st -- and I

    6 emphasise once again that there had been two earlier

    7 extensions given -- it couldn't be clearer: This

    8 Prosecution has been going on for six years. We are

    9 entitled to these statements before this trial actually

    10 began and, under the April the 1st order, at the very

    11 latest a month or so into the trial, but it didn't

    12 happen. So all we're asking the Court to do is to say,

    13 no, don't allow them to expand this list. These people

    14 are not critical; they're cumulative. And their

    15 statements have not been provided to us by the deadline

    16 imposed by the Trial Chamber's order of April the 1st.

    17 And that's the reason for our objection, Your

    18 Honour. Thank you.

    19 JUDGE MAY: Thank you.

    20 MR. KOVACIC: (Interpretation) Mr. President,

    21 Your Honours, my colleague, Mr. Sayers, has said most

    22 of the things that I wanted to say myself, so I'm

    23 really only going to say a few words.

    24 I think that it is an essential point here

    25 that the case and investigations into the case has been

  42. 1 ongoing since 1993. I'm not going to remind you once

    2 again when the original indictment was brought and when

    3 the amended indictments came, but the fact remains that

    4 investigations are still being carried on which per se

    5 are contradictory.

    6 I am not -- we are not discussing this at the

    7 moment, so I'm not going to refer to the case we have

    8 been deliberating throughout the morning -- but I

    9 cannot but state that that is the consequence of such

    10 behaviour and conduct, because if there is no firm

    11 discipline in a case and proceedings, and it seems to

    12 me that there is not because we still do not know

    13 whether the discovery has been completed or when it

    14 will be completed, then we cannot effectively control

    15 the proceedings either, and for that reason, we are

    16 confronted with the problem that not even until the

    17 present day do we know what number of witnesses we're

    18 talking about, that up until the present day we are

    19 confronted with requests to bring in additional

    20 witnesses and, at the same time, the Prosecution is

    21 accusing the Defence of being uncooperative in its

    22 stipulations.

    23 In principle, we consider that we should work

    24 with the stipulations and, unfortunately -- and I don't

    25 think I need explain this in any detail, this is quite

  43. 1 evident to the Trial Chamber -- the Defence cannot work

    2 on these stipulations before we see all the cards laid

    3 out on the table. So that would be quite

    4 unprofessional and not serious and to the detriment of

    5 the accused.

    6 I should like to join in my colleague in his

    7 proposal and suggest that these witnesses not be

    8 accepted, that the Trial Chamber does not accept them,

    9 not only because they are not relevant and, according

    10 to the subject matter, they truly are not relevant, but

    11 because we wish finally to determine the facts that we

    12 have before us on which to begin the case, because for

    13 25 or 26 days we have been in this courtroom now, for

    14 26 days we have just seen very indirect and

    15 insubstantial evidence as far as my accused is

    16 concerned, so I think we should draw the line and

    17 define what discovery we have and we can proceed to the

    18 case, and I think that this will then partially solve a

    19 series of other procedural issues that we are

    20 encountering. Thank you.

    21 MR. NICE: May I reply briefly to correct a

    22 number of things?

    23 There was a reference to investigations in

    24 May '93. Unless I'm wrong, the Tribunal didn't exist

    25 then.

  44. 1 The orders have been complied with always.

    2 Extensions have been sought in respect of translations,

    3 which were outside our control and have been carefully

    4 monitored by me and there have been unforeseen

    5 difficulties with the translation unit. That's why

    6 there have been extensions. Of the 52 statements that

    7 it is said were served on Mr. Sayers that he couldn't

    8 deal with, I believe 51 were final-version translations

    9 in the language of his client. I think. So he had

    10 already had them once in draft, maybe he had read them

    11 in draft in Serbo-Croat, but he then had them in a

    12 final form.

    13 The statement of the particular witness was

    14 served on the 17th of May and because, so far as

    15 Mr. Kovacic is concerned, it was known that he wouldn't

    16 be able to get the statement from his box because he

    17 was in his home country at the time, one was faxed to

    18 him specially, I think on the 18th of May, to

    19 accommodate him.

    20 Ms. Verhaag, who sits next door to me and who

    21 is turned to by my friends opposite whenever they're in

    22 difficulties over an administrative matter, is most

    23 careful and detailed in the recording of provision of

    24 material to the Defence, although the Defence for

    25 Mr. Kordic, I think -- they never send receipts.

  45. 1 Receipts are always sent, and they never send them back

    2 signed. But these documents were indeed provided on

    3 the 17th and, specially to accommodate Mr. Kovacic, by

    4 fax on the following day.

    5 The statement of [redacted] comes, of course,

    6 in -- strike that name, maybe, in due course, of the

    7 witness comes in relation to an area which, as I

    8 explain, was underdeveloped in the course of the

    9 investigation, hadn't been as fully developed as it

    10 might have been, and the Chamber will no doubt want to

    11 see in my overview of witnesses, which was dated, I

    12 think, the 12th of May perhaps, he is able to give an

    13 extensive amount of evidence, including an important

    14 part of evidence relating to Kordic, specifying in

    15 terms that Zepce should become part of Herceg-Bosna.

    16 That's not an insignificant piece of evidence, it is

    17 important, and if and when this witness is called, he

    18 can be taken through whatever background is necessary

    19 and to that point quickly. Without it, that evidence

    20 simply might not be there.

    21 JUDGE MAY: Which page in the overview is

    22 he?

    23 MR. NICE: Twenty-three. Third of May.

    24 If Your Honour has that, and it's been

    25 bolded, we have no other witness showing specifically

  46. 1 his connections to and his ability to direct the fate

    2 of Zepce, and therefore, he is an important witness.

    3 As to the other general complaints made about

    4 the core bundle --

    5 JUDGE MAY: Well, you needn't go into that.

    6 MR. NICE: I was just saying, I have done

    7 everything to accommodate Mr. Sayers and those

    8 defending Mr. Kordic. They haven't taken advantage of

    9 filing the latest set of documents I have provided

    10 them, and we spent several hours last week putting tags

    11 on their papers because they didn't know where to put

    12 them. We have done that for them.

    13 JUDGE ROBINSON: Mr. Nice?

    14 MR. NICE: Yes.

    15 JUDGE ROBINSON: Do you have the document

    16 prepared by Mr. Sayers?

    17 MR. NICE: Yes, I do.

    18 JUDGE ROBINSON: How many of the applications

    19 for extensions do you say are due to translation

    20 problems beyond your control?

    21 MR. NICE: My recollection is as follows --

    22 and not having had this document in advance, I haven't

    23 reviewed this particular general complaint in

    24 advance -- but my recollection is that the witness list

    25 was ordered for one date. It was then accelerated by a

  47. 1 week. We complied with that save in respect of

    2 translations. Thereafter, an extension for translation

    3 was permitted, and if there was any other extension, it

    4 was only in respect of translations. I'm sorry not to

    5 have got all these details immediately to hand,

    6 Ms. Verhaag will correct me if I'm wrong, but that was

    7 the only extension that was required. It was made

    8 clear at the time, of course, that translations are

    9 substantially outside our control.

    10 Ms. Verhaag draws to my attention page 4 of

    11 Mr. Sayers' document where Your Honour can see that

    12 indeed on the left-hand side, April the 1st, it was an

    13 order to enlarge time concerning translations.

    14 I can tell the Chamber this, and I think this

    15 is something I told you before, when the 17th of May

    16 was fixed as a date for translations to be provided, I

    17 told you that the translation unit were themselves

    18 confident that they could accomplish that day and had

    19 spoken of a shorter period, but I tried to fix a date

    20 which would definitely be met.

    21 I and, on a more regular basis, Ms. Verhaag

    22 have kept in contact with that unit, and right until

    23 the very last few days, I think the Wednesday or the

    24 Thursday of the week of the 17th, we were told that

    25 everything was in order, and then two problems faced

  48. 1 the unit: that was sickness and a computer breakdown

    2 or failure, as we were informed. As soon as I knew

    3 that there was a shortfall in translations, I notified

    4 the Defence, and I think then everything was provided.

    5 Subject to final translations, which were not subject

    6 to the initial order, everything was provided within

    7 the following week, and we can have done no more.

    8 The arguments that have been raised in

    9 relation to these witnesses, in reality, don't allege

    10 prejudice. They simply say: "Please keep these

    11 witnesses out." This witness and the other witnesses

    12 are witnesses who can provide a better and a fuller

    13 picture than preceding witnesses, and, in our

    14 respectful position, there is absolutely no reason why

    15 they should not be witnesses available to the Tribunal

    16 in due course.

    17 (Trial Chamber confers)

    18 JUDGE MAY: When is it, Mr. Nice, that you

    19 want to call the witness we haven't named?

    20 MR. NICE: The present suggestion is that it

    21 should be the week after next.

    22 JUDGE BENNOUNA: Mr. Nice, how many new

    23 witnesses are you going to call in two weeks?

    24 MR. NICE: In the two weeks, only the one.

    25 Under the other three, I desire to add them to the

  49. 1 list, and then, of course, the decision on whether and

    2 when they come will be determined by the approach to

    3 the calling of evidence that will be determined by the

    4 Chamber's decision in relation to procedural matters

    5 and will be determined by us in accordance with the

    6 robust approach that we will be taking generally. So

    7 the issue at the moment is simply whether they can be

    8 added to the lists for the reasons given. That's a

    9 necessary preliminary to the next decision which says

    10 whether they will come to be called to give evidence,

    11 and if so, when.

    12 JUDGE MAY: What would the effect be of your

    13 approach to the villages on these witnesses? Will it

    14 be necessary to call them?

    15 MR. NICE: I'm not sure, but it would

    16 obviously still be necessary to call this particular

    17 witness because he's a direct defendant contact witness

    18 and, no doubt, his evidence would be explored. As to

    19 the other three, I'm not sure, but I forecast they

    20 might fall within the investigator approach. I'm sorry

    21 not to have had that at my fingertips.

    22 (Trial Chamber confers)

    23 MR. NICE: Can I make something clear? I was

    24 thinking slowly. Of course, if the dossier approach is

    25 adopted, apart from that witness being called, the

  50. 1 other three would fall within the dossier and would

    2 only be called at the request of one of the parties.

    3 JUDGE MAY: Very well. The Trial Chamber has

    4 considered the matter. The application will be

    5 refused. We take the view that there comes a limit to

    6 the amount of material and the amount of evidence which

    7 a Trial Chamber can be burdened with and also a Defence

    8 can be burdened with, having regard to their duty to

    9 present a case as effectively as they can. In this

    10 case, we think that limit has been reached.

    11 Mr. Nice, I think it might be helpful if we

    12 had the Tulica dossier to see what it is that you have

    13 in mind but also, of course, that the Defence have it.

    14 MR. NICE: Yes. There's only one at the

    15 moment, I think.

    16 JUDGE MAY: Can you provide it? There's no

    17 need to provide the one.

    18 MR. NICE: We may be able to provide a

    19 section version or a second copy by this afternoon to

    20 the Chamber. We can show this one to the Defence

    21 straightaway or possibly show it to the Defence

    22 straightaway and then make it available to the Chamber

    23 this afternoon. Would that be helpful?

    24 JUDGE MAY: Certainly, whichever suits. The

    25 position is that clearly we ought to have some idea of

  51. 1 what you have in mind. These are matters which we will

    2 have to consider carefully and, of course, we'll hear

    3 the Defence on them. But it may be helpful, Mr. Smith,

    4 if you see what it is the Prosecution are proposing to

    5 do, and we all had more concrete notions about what is

    6 done. We will return to this next week at an

    7 appropriate moment.

    8 MR. NICE: Can I seek one point of

    9 clarification of Your Honours' ruling in relation to

    10 these four witnesses? That, obviously, relates to

    11 those witnesses. The words you used could be

    12 interpreted as being of general application, that no

    13 later application to add witnesses would be

    14 considered. If that's the case, then we'd obviously

    15 need to consider the position, but if it just relates

    16 to these four witnesses, then our position would be

    17 different.

    18 JUDGE MAY: It was a ruling about the four

    19 witnesses.

    20 MR. NICE: Thank you.

    21 JUDGE MAY: Of course, any further

    22 applications will be considered, as they must be. It

    23 will depend on the circumstances.

    24 MR. NICE: Thank you very much.

    25 JUDGE MAY: Yes, whoever is going first?

  52. 1 MR. SMITH: Your Honour, as a matter of

    2 scheduling, could I know whether you're planning to

    3 address the procedural issues on Tuesday morning or do

    4 you -- you may not know yet. I guess what I'm saying

    5 is it will help the Defence, and me in particular, if

    6 we can know in advance which day we'll be taking these

    7 issues up again. I'm ready to proceed. There's no

    8 time today, obviously, and it may be it can be

    9 scheduled once there's been an opportunity to see the

    10 dossier, but it would be helpful to know when, and then

    11 I will be here.

    12 JUDGE MAY: I suggest there are discussions

    13 through the usual channels. We should hear a witness,

    14 if a witness is available, on Tuesday, but a convenient

    15 moment in the next few days should be identified so

    16 that we can conclude that and Mr. Smith, obviously,

    17 should have notice.

    18 MR. KOVACIC: (Interpretation) Your Honours,

    19 Mr. President, we would appreciate it if the

    20 Prosecution could tell us which witnesses we have on

    21 our programme next week, because before we started this

    22 discussion today, we got two different pieces of

    23 information, and we now hear of a third possibility.

    24 So I don't know which witnesses is expect next week

    25 because I wish to prepare for them. So would the

  53. 1 Prosecution please inform us which witnesses are

    2 scheduled for next week, for the record?

    3 JUDGE MAY: No doubt, that will be done.

    4 MR. NICE: That will be done.

    5 JUDGE MAY: Thank you. We will adjourn now.

    6 Perhaps there could be notification to the next hearing

    7 that that will have to be postponed until 3.00 so that

    8 we have the usual break.

    9 We will sit in this case on Tuesday morning

    10 at 9.45.

    11 --- Whereupon the hearing adjourned at

    12 1.30 p.m., to be reconvened on Tuesday,

    13 the 8th day of June, 1999, at 9.45 a.m.