Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1316

1 Wednesday, 3 May 2000

2 [Open session]

3 --- Upon commencing at 1.58 p.m.

4 [The accused entered court]

5 JUDGE RODRIGUES: [Interpretation] You may be

6 seated.

7 With this decision, we are going to close, I

8 hope, two days of very hard work. Here is the decision

9 of the Chamber.

10 In a preliminary manner, the Chamber wishes

11 to remind the parties that before filing a motion,

12 regardless of its nature, except in the case of an ex

13 parte motion, they should previously discuss amongst

14 themselves the provisions of the motion and seek to

15 achieve an agreement. The motion should be brought

16 before the Chamber only in the case of persistent

17 disagreement.

18 Furthermore, all written motions should be

19 filed with the Registry simultaneously in both official

20 languages of the Tribunal, and it is the duty of the

21 parties to undertake the necessary steps to achieve

22 that.

23 Finally, except in the case of unforeseeable

24 circumstances, motions should be filed within a

25 reasonable time frame, allowing the Chamber to be able

Page 1317

1 to rule, so before the question addressed actually

2 arises.

3 Regarding the measures for the protection of

4 witnesses, the Chamber wishes to recall that the Rule

5 is that hearings be held in public. The Chamber notes

6 that the number of witnesses for which a closed session

7 is requested is not such as to call into question in

8 any significant way the principle of the public nature

9 of hearings.

10 To the extent to which the Chamber does not

11 have the resources for necessary inquiries, it is up to

12 the parties to provide it with all the elements,

13 allowing it to judge on a case-by-case basis whether it

14 is desirable for a witness to be granted the

15 exceptional measure which a closed session hearing

16 constitutes.

17 Under these conditions, the Chamber grants

18 protective measures 1, 2, 3, 4, and 8 mentioned in

19 paragraph 12 of the Prosecution motion, dated 27 April

20 2000.

21 The Chamber also rules that the accused, his

22 counsel, or his representatives, acting in accordance

23 with their instructions or at their request, may not

24 contact a witness or a potential witness of the

25 Prosecutor, or any other person identified in the

Page 1318

1 elements provided to the Defence by the Prosecutor,

2 unless the Prosecutor has been advised of the same in

3 writing within a reasonable time frame. In the case of

4 such a request, the Prosecutor may be present in the

5 event of any such meeting between the Defence and that

6 person if the person so requests. That measure will

7 apply on a reciprocal basis to the Defence witnesses

8 which the Prosecutor wishes to contact.

9 Concerning trial summaries and transcripts

10 which the Prosecutor should like to tender into

11 evidence, we decide that regarding the transcripts, the

12 statements made by witnesses which the Prosecutor

13 wishes to call again represent prior statements in the

14 sense of Rule 66 of the Rules and should therefore be

15 disclosed to the Defence as early as possible, and

16 including in a language the accused understands. The

17 Chamber feels that such a communication will occur only

18 in exceptional circumstances, which the Prosecutor will

19 justify, at least seven working days before the

20 envisaged date for the appearance of the said witness.

21 Under those circumstances, the two parties

22 should endeavour to avoid posing to the witness the

23 same questions to which he has already provided answers

24 during his first appearance in order to avoid any

25 repetition. Naturally, the Chamber will judge on a

Page 1319

1 case-by-case basis, if necessary, the repetitive nature

2 of the questions posed to see whether such a repetition

3 is justified.

4 Regarding trial summaries mentioned in

5 section 2(b) of the Prosecution motion, dated 28 April

6 2000, the Chamber believes that this could be a measure

7 which could speed up the proceedings. In order to form

8 an opinion, the Chamber wishes that the Prosecutor

9 should provide it with the trial summaries which it has

10 already disclosed to the Defence. For the immediate

11 future, and in order not to further delay proceedings,

12 the Chamber authorises the Prosecutor to use those

13 summaries orally at hearings.

14 In order to facilitate the use of their

15 rights by the Defence, the Chamber will consider it

16 necessary that a draft summary should be disclosed to

17 the Defence, including in a B/C/S version, at least

18 seven working days prior to the date envisaged for the

19 appearance of the witness concerned.

20 Concerning the cross-examinations, the

21 parties have agreed, as regards Prosecution witnesses,

22 that after the examination-in-chief, the Defence

23 counsel of Miroslav Kvocka will notify the Chamber the

24 order in which the Defence counsel of the accused wish

25 to cross-examine that witness, and the Chamber accepts

Page 1320

1 this suggestion.

2 The Chamber is of the opinion that as soon as

3 witnesses appear before it, the witnesses are less

4 witnesses of one party but more witnesses of justice.

5 From that standpoint, it is important that contacts by

6 either party with a witness should cease immediately

7 after the solemn declaration made by the witness before

8 the Chamber. Naturally, a party will always be able to

9 notify the Chamber of any reasons which might justify

10 exceptional contacts with the witness. But the

11 principle is that all contacts should be prohibited

12 between the parties and a witness after the witness has

13 taken the solemn declaration, until the end of his

14 testimony before the Chamber in the case that is being

15 heard.

16 Regarding an on-site visit, the Chamber has

17 contacted the competent services to envisage the

18 possible transport on site, as requested by the

19 Prosecutor. At this stage, it is not able to provide

20 an answer.

21 Regarding judicial notice, it appears to the

22 Chamber that it is important to fix, as of now and to

23 the extent possible, the framework of the debates. In

24 that context, the Chamber takes note only of the facts

25 and only those facts on which agreement has already

Page 1321

1 been reached by the parties.

2 That is the decision of the Chamber. I would

3 perhaps like to add that this is the ruling of the

4 Chamber which we may review or amend if the need to do

5 so should arise.

6 As I have always said, we are trying to

7 organise our work, and we are not slaves of

8 organisation. Organisation is there to serve us, and

9 therefore to the extent to which that organisation is

10 going to serve our purpose, we will maintain it. If it

11 proves not to be useful, we can reconsider it.

12 Therefore, I think that, as I said at the

13 beginning, we are going to close these two days of

14 work. There will not be any written ruling. This is

15 the decision of the Chamber and this is the definitive

16 decision.

17 Therefore, I think it is not appropriate or

18 useful to bring in a witness now, so I think we will

19 adjourn for today.

20 Madam Hollis, you have the floor.

21 MS. HOLLIS: The Prosecution asks

22 clarification on two points.

23 Regarding your decision on the transcripts,

24 you indicated that the transcripts must be disclosed

25 seven days before the testimony. The Prosecution

Page 1322

1 understands from that that with our first witness, we

2 will not be allowed to put the transcript into

3 evidence. Is that correct?

4 JUDGE RODRIGUES: [Interpretation] The

5 decision applies for the next few days, and for

6 tomorrow we're going to function in accordance with the

7 normal Rules.

8 MS. HOLLIS: All right, Your Honour.

9 The second matter I'd like to raise, I

10 believe we have to go into private session. It

11 concerns our oral application on two witnesses for

12 protective measures. Could we go into private session

13 on that, please.

14 JUDGE RODRIGUES: [Interpretation] Yes, we're

15 going to go into private session, please. Mr. Marc

16 Dubuisson, will you take the necessary steps.

17 [Private session]

18 (redacted)

19 (redacted)

20 (redacted)

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24 (redacted)

25 (redacted)

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5 [Open session]

6 JUDGE RODRIGUES: [Interpretation] We are now

7 in a public session. Thank you for your attention,

8 Mr. O'Sullivan. Thank you.

9 MR. O'SULLIVAN: At one point in your

10 decision, I believe I heard you say that henceforth all

11 pleadings should be filed simultaneously in French and

12 English. Is that correct?

13 JUDGE RODRIGUES: [Interpretation] Yes, you

14 heard well.

15 MR. O'SULLIVAN: Now, does that mean that --

16 there are times, and we take the example of the

17 Prosecution's request for pseudonyms, a lengthy

18 document, one that needs to be put out in writing for

19 the Bench and for the parties to understand, that is

20 going to cause considerable delays, I submit, in

21 requiring translation. First of all, the time frame.

22 Second of all, have arrangements been made

23 with the Registry to provide the Defence with

24 appropriate funding for translation services? Because

25 some of these motions are very short. Some of them,

Page 1325

1 such as final submissions, will likely be hundreds of

2 pages long. And the intermediary example is one that

3 we have before us on the protection of witnesses, which

4 was lengthy, 25 pages or so, I believe, and one that

5 will take time to prepare and translate.

6 It's just the practicalities of that aspect

7 of the ruling that I would like some clarification on.

8 Thank you.

9 JUDGE RODRIGUES: [Interpretation] Yes,

10 Mr. O'Sullivan, we are fully aware of the

11 implications. But one thing is sure: There are two

12 official languages in the Tribunal. I personally

13 prefer French, and I never have translations into

14 French. If we begin to do that, if the motions, if the

15 documents are filed in both languages, then we will be

16 able to work in a different manner.

17 I wish to say that I think it was only last

18 Friday that I received the French translation of the

19 pre-trial brief of the Prosecution. If I were to

20 refuse to work in both languages, then this trial could

21 not have begun. So that if we really begin working in

22 both languages, I think all of us have -- in this

23 Chamber, we are working in both languages. So after

24 all, we have the right to work in both languages.

25 Perhaps this will be the only Chamber working in two

Page 1326

1 languages. But measures have to be taken. Whether it

2 costs money or not, we have to adjust to this

3 situation. Perhaps it will take time. We will adjust

4 gradually. But we have to bear in mind that the

5 Tribunal works in two official languages, and they have

6 to be put in motion.

7 MR. O'SULLIVAN: [Interpretation] I understand

8 quite well that there are two official languages. But

9 there is the practical side of translating a document

10 which is first drafted in English or in French, and I

11 understand in principle. We do not wish to prolong

12 things. A motion has to be submitted seven days in

13 advance, but that will become 14 or 21 days if these

14 things simply cannot be translated.

15 JUDGE RODRIGUES: I will give you an example

16 of what we are speaking about.

17 If all people could speak the two languages,

18 there are no problems. The problem exists because

19 there are people who don't speak the two languages. So

20 we know, we are aware, of these practical questions.

21 But always the documents have to be translated after.

22 Why not translate them before? It's some kind of

23 reorganisation of the things. The money and the time

24 we spend, we always spend the time and the money. It's

25 a question of reorganisation, to reorganise the things,

Page 1327

1 I think.

2 So maybe all of us have to make some effort

3 to do this. Because the pre-trial brief of the

4 Prosecutor was translated now. Why not translate it

5 before? So I think we have to make really sincere

6 efforts to do this.

7 As I said, this Trial Chamber works in two

8 languages, and we need to work -- we have difficulties

9 today even because we work in two languages. If we

10 would have all the documents in French, and even in

11 English, maybe we would succeed earlier and maybe we

12 might have other results. But anyway, with all these

13 difficulties, we tried, and I think we succeeded.

14 [Interpretation] To wind up this discussion,

15 I know that I have caused the interpreters a lot of

16 problems by changing languages, and I apologise, but an

17 effort needs to be made, I think.

18 It is a decision of the Chamber which we will

19 try to implement. I think the whole Tribunal and all

20 the other Chambers should adopt this rule as well,

21 because as you know, other international courts always

22 publish and always accept documents in the official

23 languages. It is in the Statute; it is clearly written

24 that there are two official languages in this

25 Tribunal.

Page 1328

1 In any event, we are always available and

2 ready to consider exceptional circumstances. I think

3 that you know that this Chamber has published a

4 judgement a few months ago. We still don't have the

5 translation.

6 I think that we have no other matters to

7 address today, and I truly hope that we will be here

8 tomorrow to recommence our trial at 9.30. So we will

9 see you all tomorrow. Thank you all.

10 --- Whereupon the hearing adjourned at

11 2.25 p.m., to be reconvened on Thursday,

12 the 4th day of May, 2000, at 9.30 a.m.

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