Tribunal Criminal Tribunal for the Former Yugoslavia

Page 244

1 Thursday, 2 March 2000

2 [Pre-Trial Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 5.02 p.m.

6 JUDGE MUMBA: Would the registrar please call

7 the case.

8 THE REGISTRAR: [Interpretation] Case

9 IT-96-23-PT, the Prosecutor against Dragoljub Kunarac,

10 Radomir Kovac, Zoran Vukovic.

11 JUDGE MUMBA: These proceedings are the

12 Pre-Trial Conference for the trial of Kunarac, Vukovic,

13 and Kovac, which is scheduled to start on the 20th of

14 March this year.

15 May I have the appearances, please. For the

16 Prosecution.

17 MR. RYNEVELD: If it please the Court. Dirk

18 Ryneveld, along with my associate Peggy Kuo, Hildegard

19 Uertz-Retzlaff, and Daryl Mundis for the Prosecution.

20 We're prepared to proceed today for the Pre-Trial

21 Conference.

22 JUDGE MUMBA: For the Defence.

23 MR. PRODANOVIC: [Interpretation] Your

24 Honours, I am Slavisa Prodanovic, Defence counsel for

25 the accused Dragoljub Kunarac, assisted by Mara

Page 245

1 Pilipovic who is also counsel in this matter.

2 JUDGE MUMBA: On behalf of Mr. Kovac.

3 MR. KOLESAR: [Interpretation] Good afternoon,

4 Your Honours. Attorney Momir Kolesar, from Zemin, and

5 I represent the accused Radomir Kovac.

6 JUDGE MUMBA: On behalf of Vukovic.

7 MR. JOVANOVIC: [Interpretation] Good

8 afternoon, Your Honours, I'm attorney Goran Jovanovic,

9 from Zemin, representing Zoran Vukovic.

10 JUDGE MUMBA: Thank you very much. I would

11 like to find out from the accused whether they can hear

12 these proceedings. I'll start with Mr. Kunarac. Can

13 you hear me in a language you understand?

14 THE ACCUSED KUNARAC: [Interpretation] Yes,

15 Your Honour, I can hear you and understand you.

16 JUDGE MUMBA: Thank you. Mr. Kovac.

17 THE ACCUSED KOVAC: [Interpretation] Yes, Your

18 Honour, I can hear and understand you.

19 JUDGE MUMBA: Thank you. Mr. Vukovic.

20 THE ACCUSED VUKOVIC: [Interpretation] Yes,

21 Your Honour, I can hear you and understand you.

22 JUDGE MUMBA: I would like to welcome

23 Judge Pocar who has joined our Chamber, starting from

24 this case. I take it that our working papers for this

25 trial for the indictment is the indictment confirmed on

Page 246

1 1st December 1999, and for Vukovic, the redacted and

2 confirmed indictment of 5th October 1999, and it is

3 annexed to the Prosecutor's pre-trial brief filed on

4 21st February. Am I correct? The Prosecution.

5 MR. RYNEVELD: Yes. Thank you, Your Honour.

6 JUDGE MUMBA: For the pre-trial briefs for

7 Kunarac and Kovac, we have the Prosecutor's brief of

8 9th December. Is that correct? The pre-trial brief of

9 9th December?

10 MR. RYNEVELD: Yes. That's also correct,

11 Your Honour.

12 JUDGE MUMBA: And for Kunarac, we have the

13 pre-trial brief filed -- the first one filed on

14 28th February 1999, and then the second one combining

15 Kunarac and Kovac filed on 28th February, and this one

16 incorporates the first one which was filed on

17 20th February 1999. Am I correct, Mr. Prodanovic?

18 MR. PRODANOVIC: [Interpretation] Yes, Your

19 Honour.

20 JUDGE MUMBA: Mr. Kolesar, is that correct?

21 MR. KOLESAR: [Interpretation] Yes, Your

22 Honour, everything is all right.

23 JUDGE MUMBA: Coming to Mr. Vukovic, the

24 Prosecutor's pre-trial brief is the one filed on

25 21st February for Zoran Vukovic.

Page 247

1 MR. RYNEVELD: That is also correct, Your

2 Honour.

3 JUDGE MUMBA: And the Defence counsel for

4 Vukovic, the pre-trial brief by the Defence is the one

5 filed on 28 February?

6 MR. JOVANOVIC: [Interpretation] Yes, Your

7 Honour.

8 JUDGE MUMBA: The first item I would like to

9 address is Mr. Zoran Vukovic's counsel about his

10 readiness for trial. We have had the motions, and

11 finally the Trial Chamber decided that he would be

12 tried together with Kunarac and Kovac. I would like to

13 find out from the Defence counsel whether he has

14 explained to the accused persons about his rights and

15 the implications of the waiver of his rights, and

16 whether he is ready to start trial on the 20th of

17 March.

18 MR. JOVANOVIC: [Interpretation] Your Honour,

19 we are absolutely prepared to start on the 20th of

20 March. I have explained the consequences of my

21 client's waiver to him, and he is in full agreement

22 with it.

23 JUDGE MUMBA: I would like to ask Mr. Vukovic

24 himself to confirm what his Defence counsel has said.

25 Is that right? You have understood what your

Page 248

1 Defence counsel has said about your readiness to

2 proceed on 20th March? Is that correct, Mr. Vukovic?

3 THE ACCUSED VUKOVIC: [Interpretation] Yes,

4 Your Honour.

5 JUDGE MUMBA: Thank you very much. So we

6 shall proceed with the general issues.

7 We haven't received any document on agreement

8 of contested matters with the Prosecution and Mr. Zoran

9 Vukovic, according to Rule 65(H). I'm wondering

10 whether anything is being done in this regard.

11 MR. RYNEVELD: You're absolutely correct,

12 Your Honour, that we haven't actually had a document,

13 but we have had discussions with counsel just the other

14 day, and I believe it was yesterday or perhaps the day

15 before, I've lost track, we had discussions with

16 Mr. Vukovic in the presence of Mr. Prodanovic and -- I

17 don't know if Mr. Kolesar was there at that meeting,

18 but it is our understanding that he is agreeing to the

19 same admissions and stipulations as entered into by

20 counsel for Mr. Kunarac and Mr. Kovac.

21 There is no document that has yet been

22 created because that is just a very recent discussion

23 that we've had an opportunity to have, but I anticipate

24 that we'll be able to produce something very soon.

25 JUDGE MUMBA: Before the trial date.

Page 249

1 MR. RYNEVELD: Oh, absolutely. Probably by

2 next week.

3 JUDGE MUMBA: Thank you. Counsel for Zoran

4 Vukovic, is that correct?

5 MR. JOVANOVIC: [Interpretation] Your Honour,

6 it is correct that several days ago we held a meeting

7 with our colleagues from the Prosecution, and it is

8 correct that we have agreed on all the stipulations

9 already agreed to between the Prosecution and the

10 Defence counsel for Mr. Kunarac and Mr. Kovac. If

11 these are all the stipulations agreed to so far, we are

12 in full agreement with those.

13 The Prosecution has submitted no other

14 matters that would relate only to Mr. Vukovic, and we

15 are, therefore, in agreement with all other aspects so

16 far.

17 JUDGE MUMBA: Thank you very much. So we'll

18 go through what we expect to be the procedure at the

19 trial.

20 First of all, I'll deal with the question of

21 witnesses. We have received the lists from the

22 Prosecution and the updated lists since the joinder of

23 the trials, and what I want to discuss with the

24 Prosecution is the manner in which they will call their

25 witnesses.

Page 250

1 Is there any design? Is there any sequence

2 in which the witness also follow each other according

3 to the counts we have on the indictments?

4 MR. RYNEVELD: These matters are always, of

5 course, subject to change due to the availability of

6 the various witnesses at the various times, and we have

7 also provided what we anticipate is a perhaps

8 optimistic trial schedule that we hope to be able to

9 follow, depending, of course, on how long they will be

10 subject to cross-examination. We can't predict.

11 However, to answer your question directly, we

12 propose to call the witnesses in the order that they

13 are, in fact, listed. You will, hopefully later today,

14 be in receipt of some binders of material which

15 actually will set out -- and I'll have my colleague

16 Ms. Kuo explain the contents of those binders. But the

17 reason I raise this is the evidence and the exhibits

18 have all been, shall we say, listed in the order that

19 we anticipate they will be tendered into evidence. You

20 will note, for example, that the first witness after

21 the opening will be Ms. Tej Thapa, who will introduce a

22 number of exhibits. This is to provide the framework

23 or background of exhibits to which other witnesses will

24 undoubtedly refer. Following that, we will start with

25 some background witnesses.

Page 251

1 So we are trying to deal with this matter in

2 a logical sequence, but not in relation to specific

3 counts. It's very difficult. We have chosen, rightly

4 or wrongly, to do it in the order in which we have

5 outlined.

6 JUDGE HUNT: Are you able to tell us what the

7 logic of that list is? If it's not following the

8 counts, what does it follow? What logic does it

9 follow?

10 MR. RYNEVELD: It is attempting to follow an

11 order which we think, chronologically, sets out the

12 incidents as we understand them to be. In other words,

13 we start with the background and then we deal with the

14 various witnesses who are the victims of these alleged

15 crimes and then conclude with some expert evidence and

16 at the very end we have, if necessary, Dr. Rath. It's

17 more or less set out in that record.

18 Now, we can, of course, within calling of the

19 victims, move those around perhaps in order to attempt

20 to deal with counts in particular.

21 JUDGE HUNT: Well, that's the best way of

22 dealing with it, if you can. I realise that some

23 witnesses may give evidence in relation to more than

24 one incident and that you'll have the usual problems

25 about getting your witnesses here when you want them

Page 252

1 here. But so far as possible, is it not better, as a

2 matter of logic, to deal with them in the order in

3 which they've been pleaded? The way in which they've

4 been pleaded is obviously a matter to which some

5 consideration has been given.

6 MR. RYNEVELD: Absolutely.

7 JUDGE HUNT: And if we can deal with all the

8 witnesses relating to one particular incident in a

9 group, it would be far better than having to go through

10 and work out each time a witness is called to which

11 particular count he or she is giving evidence.

12 MR. RYNEVELD: It is my understanding, in

13 fact, that we will attempt wherever possible to adopt

14 that procedure.

15 Excuse me just one moment.

16 [Prosecution counsel confer]

17 MR. RYNEVELD: My colleague

18 Ms. Uertz-Retzlaff will indicate some further

19 indications as to how the order of witnesses is

20 proposed at the present.

21 MS. UERTZ-RETZLAFF: Your Honours, the order

22 of the witnesses is exactly according to the

23 indictment. For instance, after hearing the background

24 witnesses, you will hear those witnesses who were

25 detained in Partizan Sports Hall and who will talk

Page 253

1 about what happened there and what happened to them.

2 But, of course, a few of the witnesses, like, for

3 instance, witness 75 or 87, will also talk to incidents

4 that occurred to them later when they were detained in

5 Karaman's house, when they were detained in the

6 apartments related to Mr. Kovac. That is the only part

7 where we come a little bit out of sequence because we

8 don't want to have these witnesses coming three times.

9 So it's all packed together according to the

10 indictment.

11 JUDGE MUMBA: Thank you very much. I also

12 would like to observe that it is our practice in the

13 Tribunal that once a witness has made the solemn

14 declaration, that is, once the witness is in the

15 witness stage, and if we adjourn for any reason at all,

16 counsel will not be permitted to meet with that witness

17 until after the end of the examination-in-chief.

18 MR. RYNEVELD: As opposed to at the end --

19 the other practice with which I'm familiar is that the

20 witness cannot be approached once they're under

21 cross-examination. You're indication is at the moment

22 they've given evidence, even in chief, they cannot be

23 contacted. Do I understand that correctly?

24 [Trial Chamber confers]

25 JUDGE MUMBA: The other aspect about

Page 254

1 witnesses we are expecting from counsel is that counsel

2 should prepare questions, or should prepare their

3 witnesses in such a way that they only discuss relevant

4 evidence. We are not likely to listen to a witness who

5 is left in the witness box to tell it all, as it were,

6 because quite a lot of irrelevance has come in, and

7 usually the witnesses, as you know, they don't know

8 what the Trial Chamber is looking for, and counsel

9 does. So we would appreciate it very much to make sure

10 that the witnesses are directed properly and they are

11 brief and to the point, so that we don't take too much

12 time.

13 MR. RYNEVELD: Counsel is to have control of

14 their witness, in other words.

15 JUDGE MUMBA: Yes.

16 MR. RYNEVELD: Absolutely.

17 JUDGE HUNT: The idea, if I may say so,

18 Mr. Ryneveld, is for counsel who is taking the witness

19 to actually lead them to the particular evidence and

20 then let them give the evidence about that. But the

21 practice which seems to have developed in some Trial

22 Chambers of just saying "What do you want to tell us?"

23 is not helpful, in my respectful view.

24 If I may go back to the matter you raised,

25 Mr. Ryneveld, as to contacting the witnesses during

Page 255

1 their evidence in chief or cross-examination. I must

2 confess I was slightly surprised by what the Presiding

3 Judge said, I think it's a matter which we'll have to

4 discuss, but my understanding of the general practice

5 is what you stated, frankly. But we'll see what we

6 should follow in this case.

7 JUDGE MUMBA: The other point about witnesses

8 is that I understand from the Prosecution that there

9 are some witnesses who are very vulnerable and who

10 would like to be screened during the trial, during the

11 time that they are giving evidence, such that they

12 don't have to look at the accused, as it were.

13 MR. RYNEVELD: There are a number of issues

14 about vulnerable witnesses which we will be addressing,

15 and before the close of these proceedings, we'll be

16 making another application in closed session dealing

17 with similar issues. But to answer your question now,

18 yes, there are some witnesses who are going to be

19 asking for either facial distortion or screens or

20 various methods of protecting their identities or their

21 vulnerability in not having to see the accused.

22 JUDGE MUMBA: We are familiar with the other

23 types of protection, voice distortion, the facial

24 distortion, and things like that, but I am particularly

25 concerned with those who do not want to see the face of

Page 256

1 the accused, so that we have the screens prepared for

2 the trial and we are not delayed, so that the registrar

3 takes that into account when our trial starts.

4 MR. RYNEVELD: My understanding from my

5 colleagues confirms my view that there's only one

6 witness who has requested that, and that may be the

7 subject of discussion either now or at a later time.

8 But, yes, we will certainly make sure that that matter

9 is dealt with well in advance so that we're not wasting

10 the Court's time trying to set something up at the last

11 minute.

12 JUDGE MUMBA: Yes. Of course, you appreciate

13 the fact that the accused has to see the face, of

14 course through the screen, of the witness so that the

15 accused knows all the witnesses who will be giving

16 evidence here.

17 Now let's discuss exhibits. We have seen the

18 lists, and you have made a partial explanation.

19 Anything else you wish to say on the exhibits that the

20 Prosecution is going to produce?

21 MR. RYNEVELD: Just excuse me one moment.

22 [Prosecution counsel confer]

23 MR. RYNEVELD: I think this might be an

24 appropriate time for my colleague, Ms. Kuo, to actually

25 go through the trial binders, because the trial binders

Page 257

1 that we have produced actually have a list of exhibits

2 and the order in which we intend to produce them. So

3 perhaps you might entertain her at this point.

4 JUDGE MUMBA: Yes, Ms. Kuo.

5 MS. KUO: Thank you, Your Honour. The

6 Prosecution has prepared a five-volume set of binders

7 for each of the Judges. Before you, you should have

8 volume 1, but we have all the other volumes here which

9 we can deliver to Chambers directly after this

10 conference.

11 If you permit, I can explain very briefly why

12 we've put them together and how.

13 JUDGE MUMBA: Yes.

14 MS. KUO: Our hope is that these binders will

15 assist both in the pre-trial preparation and during the

16 trial itself. They are not evidence. We understand

17 that the evidence, of course, is only what is tendered

18 in court through the witness and that will have the

19 official stamp of the Deputy Registrar.

20 These are copies of all the exhibits as we

21 know them now, and potential exhibits, so we hope that

22 this will aid the Court in preparation. We've also

23 made copies for Defence counsel, and we've shown them

24 all their copies, and they wish to pick them up

25 tomorrow. Defence counsel also has no objection to the

Page 258

1 Court receiving these binders.

2 Two things are immediately noteworthy. One

3 is that they are confidential and we wish that all

4 rules of confidentiality apply. The witness names are

5 all given. In fact, we have produced two tables with

6 the pseudonyms and names of the witnesses for the

7 Court's convenience, and they are labelled at

8 subsections B and C.

9 In addition, we have produced, at the very

10 beginning, a schedule, as the Court was discussing

11 earlier with my colleague, a proposed trial schedule,

12 that sets out day by day which witnesses we intend to

13 call. It may be somewhat optimistic, but it indicates

14 that we should be done with all our witnesses by mid or

15 late May.

16 What we've done is gone through the order of

17 the witnesses in which we hope to call them and

18 attached their exhibits, the exhibits that we wish to

19 tender through them, and the exhibits are numbered

20 sequentially, 1 through 170. There will, of course, be

21 changes as they come up, but we hope that this will be

22 the order in which they are produced.

23 We've given every exhibit an exhibit number.

24 It doesn't mean that we're going to ask for every

25 exhibit that has a number to be entered in evidence,

Page 259

1 but it's simply a way of identifying what we're all

2 talking about.

3 During the trial, there are some things, for

4 instance, documents, which, if everybody has their copy

5 of the binder that particular day, we won't have to

6 spend time in the courtroom passing out copies. We can

7 say, "We're talking now about Exhibit 1," and everybody

8 will have it.

9 In addition, the maps we have produced, to

10 the extent that we could, in technicolour, and we have

11 plastic sleeves that contain the maps. The actual

12 exhibits themselves, the actual evidence, may be

13 bigger, but we've made them smaller for the Court's

14 convenience. And also there's a portion where we have

15 a photo album of various places in Foca that may be of

16 interest to the Court as the trial progresses. It is

17 somewhat overinclusive. It has pictures of places that

18 the witnesses may or may not mention, but we've given

19 you the entire photo album. It's also available in

20 colour, if the Court wishes, but we've made black and

21 white copies.

22 The only things that are not contained in

23 here at the moment are copies of videotapes, which we

24 think -- we have transcripts of, for instance, the

25 interviews with Mr. Kunarac, and you'll have those, but

Page 260

1 if you wish to have the videotapes, we can provide

2 those as well. There are also videotapes of places in

3 Foca, various other things, and we've marked them so

4 the Court knows that it will be a videotape, but it's

5 not contained in here.

6 So it's our hope that this will make things

7 go much more smoothly and quickly in court. There are

8 other things, for instance, manuals, military manuals,

9 and we've reproduced them in whole, although the

10 witness, as we call them, may only refer to a few

11 articles or so. So it's meant, again, to be an aid to

12 the Court, a reference tool during the trial, and if

13 you have any questions about it -- we've tried to make

14 it very accurate, but we may have missed a page or two

15 through the photocopying -- please let us know, or if

16 there are questions about particular exhibits, please

17 let us know, and we'll accommodate you.

18 JUDGE HUNT: Some of the photographs have not

19 reproduced terribly well. Some of them have and some

20 of them haven't. If they're important, we may have to

21 have something better than you've given us here.

22 MS. KUO: Yes. We have the volume in colour,

23 and we can either produce a copy for each of the

24 Judges, if you wish, or one for the entire Chamber to

25 share.

Page 261

1 JUDGE HUNT: Let's see how we go. But there

2 are some there that obviously are only photostats and

3 they don't reproduce in very good detail. We may not

4 need the detail, so let's not burden you or us with

5 that just this moment, but let's say that you've got to

6 have them available when we do need them.

7 MS. KUO: Absolutely. What we can do, since

8 we do have it available, is we can provide the Trial

9 Chamber with one copy of the colour photographs for

10 reference, in case the Court wishes to have something

11 closer to the original.

12 And I guess one last thing is we apologise in

13 advance that we've recycled these binders, so they're

14 not in perfect condition, the outer binders, just due

15 to the resources we have available.

16 JUDGE MUMBA: The Court is very much aware of

17 the budget problems. Anything else on the exhibits?

18 MS. KUO: The only other thing is that we

19 hope, with the cooperation with the Deputy Registrar,

20 that as the trial progresses, the numbers that the

21 exhibits do receive correspond to the prenumbering

22 system we have here. So at the end of the day, at the

23 end of the trial, there may be gaps, of course, where

24 the exhibits are not entered.

25 One more thing that I think I should point

Page 262

1 out. In the index, we have indicated the exhibit

2 number for identification, the witness name or

3 pseudonym through which we wish to tender this, the

4 description of the exhibit, and also at the very last

5 column that's left blank, we've entitled it "Objections

6 to Authenticity and Admissibility." Our understanding,

7 in our discussions with Defence counsel, has been that

8 for the bulk of the exhibits, they will not have an

9 objection on those grounds, but we've explained to them

10 also that should they have an objection, they can mark

11 it and then we can be pretty clear about which exhibits

12 we need to explain or defend.

13 I thought that was the last thing, but there

14 is actually one more thing, and that's that we have

15 included the witness statements for all the witnesses

16 that were available. So, for instance, witness 33 will

17 have her witness statement that was given to the OTP.

18 It does not mean that we wish to tender all these into

19 evidence, but it may become necessary, in the course of

20 trial, for the Prosecution, or perhaps the Defence may

21 wish to use that during examination of the witness. So

22 we have provided that.

23 JUDGE MUMBA: Thank you very much. I just

24 want to comment that it's very well that we have the

25 exhibits prepared as you have explained, and I do hope

Page 263

1 that the registrar will assist in making sure that the

2 numbering is kept as it is by the Prosecution. Of

3 course, we shall have gaps in the cases of those which

4 will not be produced on various grounds.

5 I would like to find out from the Defence

6 counsel, Mr. Prodanovic, do you have any comments to

7 make on the exhibits so far that you have been provided

8 by the Prosecution, as they have explained?

9 MR. PRODANOVIC: [Interpretation] Thank you,

10 Your Honours. We have no comment to make. I should

11 just like to inform you that we have enabled the

12 Prosecution to talk to six alibi witness. We did this

13 15 days ago, and they held this conversation in

14 Sarajevo.

15 JUDGE MUMBA: Thank you. Mr. Kolesar, any

16 comments on the exhibits?

17 MR. KOLESAR: [Interpretation] No, Your

18 Honour. No comments.

19 JUDGE MUMBA: Defence counsel for

20 Mr. Vukovic.

21 MR. JOVANOVIC: [Interpretation] Your Honours,

22 we have no comments regarding this material. We

23 consider that it will be of great assistance to both of

24 us and the Trial Chamber. So we have no comments to

25 make or remarks as to how the Prosecution believe this

Page 264

1 will function, but as far as the material itself

2 concerned and documents itself are concerned, we cannot

3 make any definitive statement because we haven't

4 received the material. We shall be receiving it

5 tomorrow. Thank you.

6 JUDGE MUMBA: I just want to make a few more

7 comments to the Prosecution, in particular, in the

8 process of producing these documents.

9 The Trial Chamber would not like to be hit

10 with documents which are not properly explained, so the

11 Trial Chamber will expect the Prosecution, during the

12 trial, to lead the witnesses to the relevant parts of

13 each document, pages if necessary, paragraphs if

14 necessary, and also, if possible, to the relevant

15 counts attaching those exhibits.

16 I would also like to explain to the Defence

17 counsels that I'm sure you are aware that the Rules on

18 cross-examination have been amended. Also, in

19 particular, in relation to exhibits, sometimes during a

20 trial an exhibit may be objected to by the Defence

21 counsel on various grounds but the Trial Chamber may

22 rule against them and admit the particular exhibit.

23 I would like to explain to the Defence

24 counsel that that is not the end of the matter. If the

25 Defence still feel that they cannot accept that

Page 265

1 particular exhibit, they are still free to call

2 evidence during their time to discredit or undermine

3 the evidence in that exhibit and still put forward

4 their objection to it, because at the end of a trial,

5 during the discussion by the Trial Chamber, we still

6 have a second look at the exhibits, and after receiving

7 all the evidence, we do still evaluate the relevance,

8 the importance of those exhibits to the case.

9 So normally if you are ruled against on the

10 admission of any exhibit, that's not the end of the

11 matter. I would like that to be understood, because we

12 have had problems in previous trials on this issue.

13 I've been reminded by the senior legal

14 officer to ask Mr. Vukovic, in particular -- the

15 Defence counsel should be able to answer this -- have

16 you received the list of the exhibits?

17 MR. JOVANOVIC: [Interpretation] Yes, Your

18 Honour. I have received a list of exhibits from the

19 Prosecution. I received it on the 26th of February

20 2000.

21 JUDGE MUMBA: But you're saying that you

22 haven't actually seen the actual exhibits? The actual

23 documents, have you seen them?

24 MR. JOVANOVIC: [Interpretation] Your Honours,

25 I have seen those documents, yes, but what I said a

Page 266

1 moment ago is that I have no comment to make to the

2 material that is to be handed over to us at some future

3 time, and I thought that that is what we meant, the

4 material that we are to be given by the Prosecution. I

5 have, of course, received the other documents. I said

6 so a moment ago when I received them. But as to the

7 other material, I don't know what it will contain, so I

8 cannot comment. As to what I have received, I have no

9 comment, no objections to make.

10 JUDGE MUMBA: All right. Thank you very

11 much. About the only other thing I wish to remind the

12 Prosecution of, and also the Defence, actually, is the

13 requirement of disclosure of exculpatory evidence,

14 Rule 68. I would like to say this is a continuing

15 obligation up to the judgement stage. So that if any

16 documents or evidence comes up, please do oblige and

17 give it to the relevant parties.

18 Expert witnesses. We are aware that all the

19 accused persons wish to cross-examine the expert

20 witnesses. Confirmation, please. Is that correct?

21 MR. PRODANOVIC: [Interpretation] I have

22 understood you to be speaking about expert witnesses.

23 JUDGE MUMBA: Yes. That's correct. That you

24 wish to cross-examine them. Expert witness, not ex

25 parte, which will be listed by the Prosecution.

Page 267

1 MR. PRODANOVIC: [Interpretation] Yes, Your

2 Honour. We do intend to cross-examine the expert

3 witnesses. At this point in time, on the basis of

4 Rule 73(A), we are submitting an oral motion asking the

5 Trial Chamber to allow us to cross-examine the expert

6 psychiatrists, psychologists, and forensic

7 specialists. If you wish me to expound on that, I

8 shall do so.

9 JUDGE MUMBA: Yes, please.

10 MR. PRODANOVIC: [Interpretation] This request

11 is being tabled by us because we consider it to be very

12 important. We consider the testimonies on rape, on

13 other injuries should be examined and proved, and hear

14 the views of experts which will be founded following

15 the testimony of the witnesses and to have an

16 examination conducted as well as an examination of the

17 medical documentation, and the Defence feels that this

18 is of general importance for this Trial Chamber,

19 especially when we come to the question of rape and

20 torture, so that the -- and the counts of the

21 indictment against the accused with that respect.

22 So we cannot make any conclusions as to

23 serial consequences, whether psychological or physical,

24 on the basis of general premises, but that the

25 existence of these elements must be ascertained on the

Page 268

1 basis of looking into each individual case and by

2 examining the witness. This request is considered well

3 grounded because there are several different

4 testimonies on the part of one in the same witness

5 which shows the events in a different light, and we do

6 not consider it to be contrary to Rule 96(E), which

7 provides for the fact that we shall not ask additional

8 examination of the witness.

9 The Defence considers that this refers to the

10 event itself and that the consequences of each of the

11 crimes must be assessed and examined, and this can be

12 done objectively by means of the experts.

13 To make myself clearer, we have received

14 material from the Prosecution. We have the statements

15 made by individual witnesses. For example, one witness

16 has given different testimony and statements, and the

17 Defence has amassed the statements given by such

18 witnesses to various humanitarian organisations, and

19 these statements differ each time they were given. So

20 we consider that with individual witnesses, it would be

21 a good thing to have psychologists and psychiatrists

22 present and forensic experts present as well.

23 JUDGE MUMBA: Yes. Thank you. Mr. Kolesar,

24 any comments on the similar issues?

25 MR. KOLESAR: [Interpretation] No, Your

Page 269

1 Honour. The proposal tabled by the Defence counsel of

2 Mr. Kunarac, Mr. Prodanovic, is also the proposal of

3 the accused Kovac. That is to say, my own proposal and

4 the proposal of Mr. Goran Jovanovic, Mr. Vukovic's

5 counsel.

6 JUDGE MUMBA: Any comments from the

7 Prosecution? I know that the Prosecution will lay

8 their case according to what they believe the necessary

9 evidence is. Any comments?

10 MR. RYNEVELD: No, Your Honour. Obviously

11 this is a matter entirely within the discretion of the

12 Court. If people ask leave for experts to be in

13 attendance -- of course, I don't know exactly to what

14 extent that they hope these psychologists or

15 psychiatrists to be of assistance. Obviously they

16 can't give opinions going to the ultimate issue but may

17 be of assistance to the Court and may explain, from

18 their point of view, a particular method of conduct by

19 a witness or attempt to assist you in explaining

20 witnesses' behaviour. As a matter of fact, that may

21 well be along the same lines as we may anticipate

22 calling our expert Dr. Rath.

23 Having said that, I don't think I can

24 particularly object. Just as the circumstances warrant

25 it, that's for the Court.

Page 270

1 JUDGE MUMBA: Thank you.

2 [Trial Chamber confers]

3 JUDGE MUMBA: It's entirely up to the

4 Prosecution, like I said, how they decide to prove

5 their case. As usual, the Defence will also be

6 entitled to call expert witnesses, psychologists,

7 doctors, if they so wish. That should be decided as

8 the trial proceeds, and we will see whether or not the

9 Trial Chamber would like any experts at any stage of

10 the trial. Thank you.

11 The next item deals with protective

12 measures. I think we have discussed that, except that

13 I would like to emphasise that all the protective

14 measures about the identity, identifying marks, and

15 things like that for the witnesses are still in force

16 and must be observed by all counsel, particularly at

17 this stage, that they have been provided with all the

18 statements that are without redaction. So I expect the

19 Defence counsel, while they are investigating their

20 Defence and looking for their witnesses, they maintain

21 the confidentiality of all these documents.

22 While I note that we have now three accused

23 persons, and I would like the counsel to observe the

24 sequence in which the evidence will be given. With the

25 Prosecution, there is no problem because it is the

Page 271

1 usual sequence under Rule 85. When we come to the

2 Defence case, we shall be able to discuss that during

3 the pre-Defence Status Conference so that we all

4 understand the sequence in which the Defence witnesses

5 will be called, according to the accused persons.

6 There is only one item I wish to discuss with

7 the Prosecution. In their pre-trial brief, regarding

8 the accused Zoran Vukovic, I think the pre-trial brief

9 filed on 21st February, if you have a copy, on page --

10 beginning from page 3. Item (C), which discusses

11 actions of the accused, paragraph 8, the sentence which

12 goes on to page 4, which reads: "The accused Vukovic

13 has also been identified as participating in the

14 killing of one of the older men at Buk Bijela".

15 I would like this cleared, because I am of

16 the mind to strike this sentence out because on the

17 indictment there is no charge for murder, and I don't

18 think that it would be right for the Prosecution to

19 bring this type of charge indirectly. Even though you

20 are trying to say that it will go to sentencing, it

21 can't, because it is a serious charge, and if the

22 Prosecution want to attach any importance to it at all

23 at any stage of the trial, including sentence, they

24 should have made it a charge in the indictment so that

25 the accused has an opportunity to deal with it.

Page 272

1 So I'm striking that sentence out, including

2 the footnote.

3 MS. KUO: Your Honour, may I just briefly

4 respond?

5 JUDGE MUMBA: Yes.

6 MS. KUO: Thank you to the Court for pointing

7 that out to us, and in a way, we may have misspoken in

8 the pre-trial brief by indicating in the footnote that

9 this evidence would be produced for the purpose of

10 sentencing. In the body of the pre-trial brief, it was

11 intended to show that Mr. Vukovic was involved in the

12 attack on these villages and indeed the armed conflict

13 and the attack on the civilian population.

14 Our intention in bringing this evidence in is

15 primarily to show that he was present at Buk Bijela

16 when the civilians were rounded up. He knew that

17 things were happening to the civilians, crimes were

18 being committed against them, for instance, being

19 beaten up severely, and that people were killed.

20 So our intention wasn't to charge him with

21 the murder, and the reason we did not charge him with

22 the murder in the indictment is we do not believe, in

23 good faith, that we can prove it beyond a reasonable

24 doubt, but there is some evidence to show that he's

25 involved in all the things that are happening. So we

Page 273

1 put in our footnote it would be there for sentencing,

2 but it would be more correct to say that we wish to

3 have this brought in to show that he is involved and

4 knowledgeable and part of the armed conflict, attack on

5 the civilian population. Whether or not it can be used

6 for sentencing I suppose is a matter we discuss

7 further.

8 JUDGE HUNT: If you concede that you can't

9 prove it beyond a reasonable doubt, how can you

10 possibly bring it in for the purposes of sentencing?

11 MS. KUO: At the moment, we don't read the

12 Rules as requiring that sentencing matters be proven

13 beyond a reasonable doubt.

14 JUDGE HUNT: That's a very surprising

15 proposition, if I may say so. You can only be

16 sentenced for what you have been convicted for, and if

17 you haven't been convicted, you can't be sentenced for

18 it.

19 MS. KUO: Perhaps I can clarify what I

20 meant. I didn't mean that he would be sentenced for

21 that but that it could be considered in the course of

22 sentencing as, for instance, an aggravating factor.

23 His involvement in other criminal acts could be

24 aggravated.

25 JUDGE HUNT: It's a fundamental rule, is it

Page 274

1 not, of sentencing that matters of aggravation must be

2 established beyond reasonable doubt. There is no other

3 way in which it could be taken into account.

4 MS. KUO: Your Honour, I don't wish to speak

5 to that matter fully at this moment, only to say that

6 jurisdictions do differ on that.

7 JUDGE HUNT: That will be an exercise in

8 comparative law then, won't it.

9 MS. KUO: I'm sure it will be.

10 [Trial Chamber confers]

11 JUDGE MUMBA: The Trial Chamber is still not

12 convinced of the explanations, but we will deal with it

13 during the course of the trial, and we hope that the

14 Prosecution have been fairly warned about it.

15 I just want to find out from the Defence

16 counsel the state of the accused persons. Are they in

17 good health? Are there any other problems?

18 MR. PRODANOVIC: [Interpretation] As far as

19 Dragoljub Kunarac is concerned, the accused, he is here

20 and he can confirm that he has no problems at present

21 with respect to his health, and that he stands

22 trial-ready.

23 JUDGE MUMBA: Thank you.

24 Mr. Kolesar.

25 MR. KOLESAR: [Interpretation] The accused

Page 275

1 Radomir Kovac is physically and psychologically ready

2 for trial, to follow the proceedings in the normal

3 fashion, but we always have some small problem. As his

4 Defence counsel, I was appointed temporarily in the

5 case against Mr. Vujin. That case has been concluded,

6 but my client would like Mr. Milan Vujin to be on his

7 Defence team. And at the insistence of my client, I

8 spoke to Mr. Milan Vujin and I obtained the following

9 information from him, that he is ready and willing to

10 become a member of the Defence team as a co-counsel,

11 not to be paid for by the Tribunal, because Kovac and

12 himself are acquaintances from earlier on, and that is

13 why he is ready to take part in his defence, but that

14 his services will not be paid for by the Tribunal.

15 I should like to ask the Trial Chamber,

16 within the framework of its competencies and

17 authorities, to look into the matter with the Registrar

18 so that we can clear this matter up. We have 18 days

19 to go, and I don't have a co-counsel, a colleague, to

20 help me in the Defence case. Thank you.

21 I apologise. I wish to say one more thing,

22 if I may. I wish to say something else that was

23 conveyed to me. It was stated that in that case, he

24 would withdraw his appeal and he will pay the fine in a

25 shorter period as possible, and those are the words of

Page 276

1 Mr. Milan Vujin, a lawyer, which I wanted to convey to

2 you.

3 JUDGE HUNT: Well, that's very interesting.

4 If he withdraws his appeal, he remains convicted of

5 contempt of the Tribunal, and the Registrar is

6 instructed to strike him off the list as assigned

7 counsel. There is a problem about this. This has

8 already been discussed with the Registrar and, as I

9 understand it, the Registrar has made a ruling. I

10 thought I saw a ruling by the Registrar that she would

11 not permit him to be counsel whilst he stands guilty of

12 contempt.

13 JUDGE MUMBA: That is so, Mr. Kolesar, so the

14 Trial Chamber can't intervene.

15 JUDGE HUNT: If I may say so, Mr. Kolesar,

16 you did have co-counsel and you permitted him to go.

17 Your client consented to him going, and I am not sure

18 what the exceptional circumstances were ones which the

19 Registrar found which enabled him to withdraw from this

20 case, but nevertheless, it seemed to be done with

21 everybody's consent, including your own. So the fact

22 that you are without co-counsel seems, to me, to be the

23 result of your own conduct.

24 MR. KOLESAR: [Interpretation] Your Honours, I

25 don't think you're right on that matter, because the

Page 277

1 accused, Mr. Kovac, did not let go the services of

2 co-counsel, Mr. Domazet, nor did I give any agreement

3 to that. Quite simply, the new accused asked that

4 lawyer Domazet be his counsel, lead counsel, and what

5 Mr. Kovac did was that he just agreed to it. I do not

6 see any logic in him not agreeing, if the other

7 defendant would like to have a co-counsel. So we did

8 not dismiss anybody, he stepped down from the team

9 himself. We just agreed that he could step down. So I

10 don't think that these two matters can be equated.

11 JUDGE HUNT: Well, if you say you agreed to

12 him stepping down, that means you consented to him

13 going. The Rule, as I understand it, is that you

14 cannot be counsel in more than one case in the

15 Tribunal. So that if he was going off to be lead

16 counsel for some other accused, he could not remain as

17 your co-counsel. And, as you've just conceded, you

18 agreed to him going. So is it still not a problem that

19 you have brought upon yourself.

20 MR. KOLESAR: [Interpretation] I did not have

21 the possibility or right, Your Honour, either for

22 Vasiljevic or lawyer Domazet to prevent them, that

23 Mr. Domazet be defence counsel for Mr. Vasiljevic, and

24 whether he had my agreement or did not have my

25 agreement, in my view, it did not have any effect on

Page 278

1 the fact that I'm alone on the Defence team now,

2 because I could have expressed my disagreement and he

3 would have left the Defence team anyway.

4 JUDGE HUNT: I think that you may not be

5 familiar with the terms upon which he received an

6 assignment. One of the terms of any assignment is that

7 you may not leave without the consent of the Registrar,

8 and the Registrar has permitted him to leave because,

9 as I recall, seeing a document signed by you, that you

10 did not object.

11 MR. KOLESAR: [Interpretation] If I did not

12 allow him to step down from the team, that is to say,

13 Mr. Domazet as lead counsel, I would have brought into

14 question a fair trial for this accused, and to all

15 intents and purposes, this prompted me to give my

16 agreement. A fair and expeditious trial is not only to

17 be granted to Kovac, but to Vasiljevic as well. So

18 those are the facts that guided me in giving my

19 agreement, and I still say that I think that that was

20 in order.

21 JUDGE HUNT: Well, Mr. Kolesar, if I may say

22 this: If you think that you need co-counsel in order

23 for this trial to be proper, then you better go about

24 getting one. But I think you'll find that the

25 Registrar has already made a ruling about Mr. Vujin.

Page 279

1 MR. KOLESAR: [Interpretation] Thank you, Your

2 Honour. If the Registrar has done that, then in the

3 shortest possible time, we shall be able to regulate

4 that matter.

5 JUDGE MUMBA: Yes, because there are quite a

6 number of other counsel on the list of the Registrar.

7 So it is possible for the accused to get another

8 counsel.

9 MR. KOLESAR: [Interpretation] Yes, Your

10 Honour. That is, once again, a matter up to the

11 accused, who he is going to select as his Defence

12 counsel, and not us lawyers.

13 JUDGE MUMBA: Mr. Jovanovic, anything? Other

14 than everything we have discussed, is the accused

15 person in good health? Are there any other problems?

16 MR. JOVANOVIC: [Interpretation] Your Honours,

17 as far as I know, there are no physical or

18 psychological problems for Mr. Vukovic to be able to

19 attend the trial.

20 However, I am very sorry for taking up your

21 time, but I find myself in a very unusual situation

22 myself, and let me explain that. For the third time, I

23 have been given an appointment, a one-month

24 appointment, and if Mr. Vukovic would ask me to take on

25 his case, I have tendered all the documentations

Page 280

1 regarding property and everything else, the Judges are

2 well-acquainted with the rules and regulations for a

3 lawyer to be appointed Defence counsel. The trial

4 begins on the 20th of March. We have practically

5 reached that date, and I consider that Mr. Vukovic and

6 myself have done everything in my power to see that the

7 trial goes ahead as planned and scheduled, and we have

8 invested a great deal of effort.

9 However, due to certain reasons, which I do

10 not know why they have occurred, I still have not

11 received a permanent appointment as Defence counsel,

12 and as one thing leads to another, I am not in a

13 position to form a Defence team, to appoint my

14 co-Defence counsel. Everything is sort of up in the

15 air, if I should use that expression. And so I should

16 like to appeal to the Trial Chamber, if you deem it

17 necessary, and if within the frameworks of your

18 possibilities and adherences you allow for this to be

19 settled, to deal with that matter in one way or

20 another. It doesn't matter in which way, but just that

21 this should no longer be a problem for myself and for

22 the accused, because at this point in time, he does not

23 know if I'm going to be his Defence counsel or not.

24 That is all from me. Thank you, Your

25 Honours.

Page 281

1 [Trial Chamber confers]

2 JUDGE MUMBA: Yes, Mr. Jovanovic. We have

3 understood your problem, and we are going to give a

4 directive to the Registrar to take a decision right

5 away.

6 MR. JOVANOVIC: [Interpretation] Thank you,

7 Your Honours.

8 JUDGE MUMBA: Any other matters,

9 Mr. Prosecutor?

10 MR. RYNEVELD: I'm sorry at this late hour to

11 say yes to that, but as I intimated earlier, we're

12 going to be asking for a matter to be dealt with in

13 closed session, if at all possible.

14 JUDGE MUMBA: Yes. Can we go into closed

15 session.

16 Mr. Ryneveld, private session will do?

17 MR. RYNEVELD: Yes, that will be fine.

18 [Private session]

19 (redacted)

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14 [Open session]

15 JUDGE MUMBA: I think we have gone through

16 all the matters that we wished to raise, and I do hope

17 that our trial will start on the 20th of March as

18 scheduled. And I do hope that Mr. Kolesar will take up

19 the matter of co-counsel immediately, as he has been

20 told what the status is, and there should be no

21 problem.

22 We have finished everything that we wanted to

23 discuss. We shall be waiting for the Prosecution's

24 applications for subpoenas. I think we have come to

25 the close of our proceedings, and the Tribunal will

Page 289

1 adjourn.

2 --- Whereupon the Pre-Trial Conference

3 adjourned at 6.15 p.m.

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