1 Wednesday, 14
2 [Status Conference]
3 --- Upon commencing at 12.49 p.m.
4 [The accused entered court]
5 JUDGE RODRIGUES: [Interpretation] You may be
7 We are here now to hold a Status Conference,
8 and I am proposing an agenda which will take up the
9 same agenda items as we had at the previous Status
11 Today we are going to discuss the use and
12 admission of prior statements of witnesses, the use and
13 admission of photographs, the defence of alibi, the
14 Judges' questions; we're going to raise the question of
15 depositions and, in a certain sense, the question of
16 timetable, and any other questions that may arise,
17 depositions by Presiding Officers.
18 I would like to tell you that we would like
19 to cover all the points on the agenda; that is, if we
20 need to continue in the afternoon, we shall do so
21 because we really must resolve all these matters to
22 ensure the proper conduct of what I call the
23 administration of justice and justice itself. I think
24 that our highest interest is the interest of justice,
25 and the administration of justice is just a way of
1 organising the road to achieve that supreme goal.
2 So we come to the first point: the use and
3 admission of prior statements by witnesses. I wish to
4 share with you a few ideas which are just questions for
6 As you know, there are different types of
7 documents that can be considered as prior statements in
8 the sense of Rule 66 of the Rules of Procedure. For
9 the needs of this discussion, we will make a
10 distinction between three different types of
11 statements: statements made to the Office of the
12 Prosecutor, statements made to other official
13 institutions; namely, those of other countries,
14 statements made at hearings within the framework of
15 other trials, which one could call transcripts. So
16 we're going to discuss these matters in general, and
17 afterwards we will have specific matters to rule on.
18 The discussion should first focus on the
19 first type of statements, that is, prior statements
20 made to the Office of the Prosecutor. The question
21 that arises in connection with the use of such
22 statements affect, among other things, the principle of
23 orality of debates and the possibility of questioning
24 or challenging the witness statements and, more
25 broadly, the credibility of the witness.
1 In other words, the Prosecutor, if we
2 caricature a little certain proposals made, can he
3 limit himself to confirmation by the witness of the
4 totality of the prior statement and asking the
5 admission of the same. The Defence in that case would
6 be in a position to conduct a cross-examination solely,
7 or almost solely on the basis of a written document.
8 Of course, I repeat, I'm caricaturing things a little.
9 Vice versa, in the hypothesis that the
10 Prosecutor goes into a detailed examination-in-chief,
11 should the Defence have the possibility to use the
12 prior statement, risking that that statement may
13 contain elements that have not been touched upon by the
14 Prosecution and which the Defence may consider
15 prejudicial for his client; or should the Judges use
16 only abstracts of that statement, risking the
17 possibility of dealing with them out of context and
18 without being able to verify them by examining the
19 totality of the text; or do the parties imagine that
20 the Judges should base their opinion on the testimony
21 at the hearing and the whole prior statement of a
23 Finally, the Chamber notes that the defences
24 of various accused in this case seem to have divergent
25 views regarding the use of statements, that is, whether
1 they should be used in their totality or partially, or
2 not used at all.
3 The parties should have met yesterday
4 afternoon to discuss this matter. What are their
5 observations? Have they reached an agreement? That
6 would be a good question. Furthermore, what are the
7 other types of prior statements, specifically the
8 transcripts? Regarding the latter, should we not
9 consider that when they are public, then everyone, that
10 is, the parties and the Judges as well, can refer to
11 them without necessarily having them admitted as
12 exhibits, having them admitted into evidence?
13 These are a few questions which the Chamber
14 would like to share with the parties so as to have a
15 fruitful discussion.
16 According to the order I have suggested, I
17 will begin with Ms. Hollis or Mr. Niemann, I don't know
18 which of you would like to speak, and then I will give
19 the floor to each Defence counsel.
20 Ms. Hollis.
21 MS. HOLLIS: Thank you, Your Honour. The
22 Prosecution will address the points that you have
23 raised. Before doing so, the Prosecution would suggest
24 that the definition of statement may be broader because
25 we look at the statement in terms of both parties, not
1 just the Prosecution. And we suggest that if a witness
2 has provided something in writing to either party and
3 adopts that as their own, then that could be considered
4 as a statement so that the Defence also would have
5 available to it in its case, the use of statements.
6 But now turning to the classifications that
7 Your Honour has set forward. In terms of the Office of
8 the Prosecutor -- well, first of all, in terms of
9 orality challenging the statement and challenging the
10 credibility, we suggest that credibility can be
11 assessed even when one party used statements because
12 the other party will cross-examine.
13 We also suggest that very often, a statement
14 would be offered as part of the evidence and the
15 witness would indeed be called upon to provide
16 additional oral testimony regarding the case.
17 Credibility of a witness is not limited to
18 attempted impeachment by inconsistencies in
19 statements. Both sides investigate these witnesses.
20 There are other modes of impeachment such as using
21 other witnesses to indicate that this witness told a
22 different story to them. That would not be impeachment
23 by a prior statement that is offered to the Court.
24 Pointing out contradictions in the statement and other
25 evidence, so that the use of statements would not
1 preclude the opposing party from impeaching the
2 credibility of a witness.
3 We agree that it is important that the
4 witness come forward and be present in the courtroom,
5 and wherever possible that should be done. We suggest
6 the use of statements does not preclude that
7 happening. Every one of these witnesses will be here
8 in the courtroom and will be subject to
10 If there is no cross-examination, we suggest
11 that's because the other party doesn't oppose anything
12 the witness said. So that we believe that orality can
13 be met by bringing the witness forward as we would do
14 in virtually all cases, but it would not deprive the
15 opposing party of examination orally in the courtroom.
16 We note that some of the rules allow for
17 situations where a witness would come forward, their
18 statement would be put into evidence. That is allowed
19 for in terms of expert witnesses. We suggest that in
20 terms of the principles we are talking about here
21 today, there's really no difference in those
23 We also note that there is some procedure
24 whereby an affidavit or formal statement of a witness
25 can be introduced even without the witness being
1 present. So again, we suggest that that would be a
2 contrary argument to the position the Defence is taking
3 about our suggested use of statements because that's
4 allowing statements to be used even when a witness is
5 not here.
6 Now, in terms of statements of the Office of
7 the Prosecutor, we suggest, as with all statements,
8 what is important is that the witness adopt those
9 statements. We suggest that it would be better for the
10 Judges to have the entire statement or, at a minimum,
11 to have all parts of the statement that refer to the
12 matters that are disputed, but our position is it would
13 be better for Your Honours to have the entire
15 We do not have jury trials here, these are
16 judge alone trials. Your Honours are able to review
17 those statements and determine what is relevant to you
18 in making your determinations at trial, and our Rules
19 of Evidence indicate that anything that is relevant and
20 has probative value is allowed into evidence here.
21 We suggest it would be up to Your Honours to
22 determine the relevance and the probative value and
23 assign the weight accordingly. So we would suggest
24 that you should not only be given abstracts but should
25 be able to give with the statements in context.
1 We also suggest that the judges should be
2 able to base their opinion on both oral testimony and
3 the entire prior statement when it is used. Perhaps we
4 should make a clarification here. We are not
5 suggesting that parties be forced to introduce prior
6 statements into evidence. We are suggesting they be
7 allowed to do so when they believe those prior
8 statements are relevant and would assist the
9 fact-finder and would expedite the proceedings.
10 In terms of prior testimony, we believe that
11 that is, perhaps, another form of statement. Your
12 Honour, I believe, has mentioned it as another form of
13 statement. Prior testimony before this Tribunal, we
14 believe, should be allowed into evidence where it is
15 relevant and probative.
16 In that regard, the Prosecution's position is
17 that the Trial Chamber should consider no evidence in
18 making its fact-findings unless that evidence is
19 formally admitted at trial, because if it's not
20 formally admitted at trial, then how, on appeal, can
21 the parties determine what the Trial Chamber actually
22 relied upon?
23 So we agree that public testimony is in the
24 public domain, but we suggest that the Trial Chamber
25 should not use such public testimony unless it is
1 offered into evidence. And in making that statement,
2 we realise that the Judges themselves may call for
3 additional evidence. We believe it should be formally
4 introduced into evidence.
5 Regarding statements to other official
6 institutions. Again, we believe that if a party puts
7 that statement forward as relevant and probative, and
8 Your Honours agree, and the statement is adopted by the
9 witness in court with or without corrections, we
10 suggest that that statement should be admitted into
11 evidence and that Your Honours should determine the
12 weight to be assigned to such a statement.
13 Your Honour, I believe I've covered all of
14 the questions that you raised.
15 JUDGE WALD: I have a couple of questions.
16 MS. HOLLIS: Yes, ma'am.
17 JUDGE WALD: Do I take it from your
18 categorisation of these things that your position
19 doesn't go as far, or tell me if I misinterpreted it,
20 it doesn't go as far as to say that if you have a
21 statement, be it an OTP statement or another
22 institutional statement, and the witness isn't
23 available for cross-examination and we're not in a 94
24 ter situation, which is covered by the Rules but is
25 fairly well circumscribed as to what it can be. If
1 we're not in that situation, do you -- you would not be
2 advocating that you could just put in a witness
3 statement without the witness being here and if it
4 didn't fall into 94 ter, are you?
5 MS. HOLLIS: Your Honour, the Prosecution
6 would not advocate that as a general rule.
7 JUDGE WALD: Okay.
8 MS. HOLLIS: We believe that if a party would
9 be able to put forward sufficient circumstances to
10 justify it and sufficient reliability for the
11 statement, perhaps, but certainly not as a general
12 rule, no, Your Honour.
13 Perhaps a witness makes the statement and
14 then the witness dies and it is relevant to the
15 matter. But these are abstract, and I think they'd
16 have to be dealt with on a case-by-case basis and we
17 believe that would be in very limited circumstances.
18 But as a general rule, no, we're not advocating the use
19 of those statements.
20 JUDGE WALD: And the second question I have
21 is that when you talked about the entirety of a
22 statement coming in when it's been introduced
23 originally as part of an impeachment process of the
24 witness, you don't think as we've seen in -- I'm not
25 sure this trial, but certainly in some trials, where
1 you'll have a long witness statement of seven or eight
2 pages, the Defence counsel, could be the Prosecution,
3 but the Defence counsel seeks to show an inconsistency
4 in one paragraph of that statement and many times, the
5 witness will have covered events in the statement, some
6 events that should not even have been touched upon in
7 the main testimony at hand.
8 But you really do think that we, the Judges,
9 have some power that allows us to assess the
10 reliability of a couple of written paragraphs that
11 haven't even been touched upon by the main witness
12 ahead of us, or you would suggest in that -- because we
13 went into this a little bit the other day, you would
14 suggest in those circumstances we could start asking
15 the witness all over again about stuff that was in
16 the -- that she or he hadn't covered before that was in
17 that statement?
18 I mean I have some scepticism on this, as you
19 can tell.
20 MS. HOLLIS: Yes, Your Honour, I note your
21 scepticism. First of all, we would be of the opinion
22 that in such a circumstance, if the party then sought
23 to introduce the entire statement, the other party
24 would be allowed to question on that.
25 If it is something that is not relevant to
1 these proceedings, we believe that either Your Honours
2 could order that that be deleted or that Your Honours
3 could disregard it because Your Honours are Judges who
4 are chosen for your experience, and we believe you
5 could disregard it. If it is relevant to issues before
6 Your Honours, we believe that it would be admissible
7 into evidence, again with an opportunity for the
8 opposing party to touch on it.
9 So our bottom-line position on all these
10 statements is that the question is, are they relevant
11 and are they probative to issues you have to decide,
12 and if they are, we suggest they would be admitted.
13 And then how the opposing party would deal with those
14 could either be to put on the record they believe
15 certain portions are not relevant to this trial or not
16 probative or to go back and question regarding those
18 JUDGE WALD: You don't see any problem with
19 the Article in the main ICTY Statute about confronting
20 your accusers. I know you have the witness there, but
21 if you've got something in the statement the witness
22 hasn't even mentioned and you just have the statement
24 MS. HOLLIS: If the witness is there and it's
25 the witness' statement, then the opposing party is able
1 to confront the witness about what is in that
2 statement. We believe that's what is meant by
3 "examine" or "have examined" the witnesses against
4 you, and that is the language of the Statute, of
5 course. Many people equate that with confrontation.
6 If there is a difference, at least the plain language
7 of the Statute is to examine or have examined the
8 witnesses against you, and we believe that the opposing
9 party would have an opportunity to examine on those
11 JUDGE WALD: Let me give you one last
12 example. I don't want to use up all the time.
13 You are the Prosecutor, as indeed you are.
14 You put the witness on the stand and you ask the
15 witness about incidents A and B. The Defence counsel
16 then puts in, in order to impeach the witness on
17 something he or she said about incident A, they put in
18 a statement. The statement contains not only
19 information about incidents A and B about which the
20 witness has been questioned, but incidents C, D, E, and
21 F. Do you think that you, the Prosecutor -- and you
22 may not be entirely happy with what the witness said in
23 the statements about incidents C, D, E, and F -- do you
24 think you, the Prosecutor, can then take up and start
25 questioning the witness who's here sitting in the stand
1 about incidents C, D, E, and F, or that we have this
2 great power of discerning from the written statement
3 the reliability of that?
4 MS. HOLLIS: Your Honour, in your scenario,
5 it is our statement but it is the Defence who
6 introduces these other ones.
7 JUDGE WALD: Exactly.
8 MS. HOLLIS: We believe, then, that we would
9 be allowed to question the witness about those
10 incidents. It is our statement. I think in many
11 jurisdictions you can impeach your own witness even. I
12 think very often if, as you may say so, we're not
13 entirely happy with what's in the statement, but if
14 that's what the witness said, that's what the witness
15 said, but we would be allowed, I think, to explore
17 JUDGE WALD: Thank you.
18 JUDGE RODRIGUES: [Interpretation] Ms. Hollis,
19 I should like to follow up this reasoning of Judge
21 Imagine that neither the Prosecution, and
22 therefore the Defence either, because the Defence is
23 limited by the limits of the examination, so neither
24 the Prosecution nor the Defence are questioning about
25 events D, E, F, et cetera, but the Judges see that
1 these are important incidents for a determination.
2 Would you agree that the Judges should take up those
3 incidents or not? I have my own opinion but I should
4 like to learn yours.
5 MS. HOLLIS: Well, certainly, Your Honour, in
6 this practice, Your Honours can ask questions and ask
7 for additional evidence. If Your Honours believe that
8 this is relevant and it is probative and would assist
9 you in reaching decisions in the case, we believe that
10 you could question the witness.
11 Your question, Your Honour, we suggest, goes
12 into others we'll be discussing today, and that is what
13 is the appropriate and allowed response of the parties
14 should Your Honours do that? But the Prosecution's
15 position is that Your Honours can ask questions about
16 any matters that are, to you, relevant and probative
17 and would assist you in making your decisions in this
19 JUDGE RODRIGUES: [Interpretation] Very well.
20 We're now going to hear the Defence regarding
21 these points, and then we will go on to the next agenda
23 Mr. Krstan Simic. I'm sorry,
24 Mr. O'Sullivan.
25 MR. K. SIMIC: [Interpretation] Your Honours,
1 the Defence has agreed that Mr. O'Sullivan will be
2 speaking on behalf of Mr. Kvocka's, Kos', Prcac's, and
3 Zigic's Defence, whereas Mr. Fila will be speaking on
4 behalf of the Defence team of Mr. Radic, and that is
5 why Mr. O'Sullivan was on his feet.
6 But I should just like to say a few words
7 before that. We discussed a topic yesterday regarding
8 the proceedings themselves and time was limited and I
9 wasn't allowed to say what I had to say, so I should
10 like to go back to that question and say what I have in
11 that regard. Thank you.
12 JUDGE RODRIGUES: [Interpretation] Excuse me,
13 but I didn't quite understand your point, Mr. Simic.
14 MR. K. SIMIC: [Interpretation] Last time when
15 we started the Status Conference, we talked about the
16 course of the proceedings. Ms. Hollis spoke and it was
17 my intention to raise a matter at that time, but as the
18 time was limited to five minutes -- you asked me if I
19 could complete within five minutes and I said no -- you
20 said that we could continue today. I'd just like to
21 bring your attention to that question. Thank you.
22 JUDGE RODRIGUES: [Interpretation] Very well.
23 As you know, in the agenda we have an agenda item
24 called "miscellaneous" or "other matters," so we'll
25 come back to that then.
1 Mr. O'Sullivan.
2 MR. O'SULLIVAN: Thank you, Your Honours.
3 As Mr. Simic has stated, I will be making
4 submissions on behalf of Kvocka, Kos, Zigic, and
6 Your Honours, I will respond to your
7 questions and to the Prosecution. I also intend to
8 bring to your attention two decisions of this Tribunal,
9 one Trial Chamber decision and one Appeals Chamber
10 decision, which I submit support our position.
11 What is our position? It is this: We say
12 that the use to which prior statements can be used in
13 these proceedings is limited -- the question of
14 admissibility is limited. By "prior statements," we
15 include all the types of statements Your Honour has
17 We submit that the admission of a prior
18 contradictory statement to impeach a witness is
19 admitted for the limited purposes of demonstrating the
20 impeachment and is not admitted to establish the truth
21 of the contents of that statement.
22 Your Honours, under the legislative framework
23 of this Tribunal, I submit that the cases to which I
24 will refer support our position. On this matter, there
25 is one Article and two Rules which are germane to this
1 issue, that is, Article 21(4)(e) of the Statute, Rule
2 90, and Rule 85.
3 Let's turn to the Rules first. Rule 90(A) is
4 very short and it states as follows: "Subject to Rules
5 71 and 71 bis, witnesses shall, in principle, be heard
6 directly by the Chambers." The two exceptions, Rule 71
7 refers to depositions and Rule 71 bis refers to
8 videolink. The central issue, therefore, in our
9 submission, is the meaning to be ascribed to the words
10 "testimony of witnesses." We submit that testimony of
11 the words of a witness given under oath or affirmation
12 in these proceedings. "To give evidence" or "to be
13 heard," in our submission, means that the person
14 appears in court, testimony is extracted from that
15 witness and used in these proceedings. Rule 85(B)
16 reflects that procedure I have just described whereby
17 there's examination-in-chief, cross-examination,
18 re-examination, if any, and Your Honours' questions, if
19 any. That, I submit, is the general framework under
20 the Rules.
21 Rule 90 and 85 reflect the rights guaranteed
22 to the accused under Article 21(4)(e). That provision
23 is very short and I'll read it to you: "It's the right
24 of the accused to examine or have examined the witness
25 against him and to obtain the attendance and
1 examination of witnesses on his behalf under the same
2 conditions as witnesses against him."
3 What are the rights guaranteed to an accused,
4 as a minimum guarantee in full equality? In answering
5 that question, we rely on this decision: It's the
6 decision on the motion to allow Witnesses K, L, and M
7 to give testimony by means of videolink conference.
8 That's a decision from the case of the Prosecutor
9 versus Delalic and others, decided on 28 May, 1997.
10 The issue in that case was whether the right of the
11 accused, under Article 21(4)(e), was violated when a
12 witness gave testimony via videolink. The Trial
13 Chamber ruled that that right was not violated.
14 Can I direct Your Honours' attention to
15 paragraph 15 of that decision, and I will quote briefly
16 from that passage. The Trial Chamber said this: "It
17 is important to reemphasise the general rule requiring
18 the physical presence of the witness. This is intended
19 to ensure confrontation between the witness and the
20 accused, and to enable the Judges to observe the
21 demeanour of the witness when giving evidence. It is,
22 however, well known that video conferences not only
23 allow the Trial Chamber to hear the testimony of a
24 witness who is unable or unwilling to present their
25 evidence before the Trial Chamber at The Hague, but
1 also allows the Judges to observe the demeanour of the
2 witness whilst giving evidence."
3 The Chamber went from there to say that the
4 right was not violated. In our submission, the
5 following propositions follow from this decision and
6 the interpretation of Article 21(4)(e).
7 The first proposition is this: The right to
8 confrontation. The right of the accused to be
9 confronted with a witness against him. The right to a
10 face-to-face meeting with the witness appearing before
11 the trier of fact. A right to hear what the witness
12 has to say.
13 The second proposition is this: Demeanour.
14 Your Honours must observe the demeanour of the witness
15 when he is testifying. You must observe outward
16 appearance and behaviour, facial expression, tone of
17 voice, gestures, willingness or hesitation in answering
18 questions, all questions.
19 The third proposition is this: Credibility.
20 Credibility, the quality which makes evidence worthy of
22 As the fact finders, you have a duty and
23 obligation to observe this behaviour and draw your
24 conclusions on the issue of credibility. Hearing and
25 observing a witness throughout the witness' testimony
1 ensures fairness and integrity of the proceedings.
2 When a witness comes into court with a
3 splitting headache, holding an ice pack and placing it
4 on his forehead, a fair and impartial fact finder stops
5 the proceedings. I submit that's to ensure fairness
6 and integrity.
7 The second case I wish to draw to your
8 attention is the Tadic appeal judgement of 15 July
9 1999. One of the grounds of that appeal brought by the
10 Prosecution successfully was whether the Defence could
11 be ordered to disclose to the Prosecution the witness
12 statement of a Defence witness after that witness had
13 completed examination-in-chief.
14 The appeals Chamber said that the Prosecution
15 may apply for such disclosure following
16 examination-in-chief of a Defence witness, and the
17 Trial Chamber has the power to make such an order.
18 What I submit is clear and implicit in that decision is
19 that witnesses are intended to testify in direct
20 evidence viva voce. Witness statements are to be used
21 for cross-examination. Witness statements are
22 certainly not admissible for the truth of their
23 contents nor can they be tendered as such.
24 There appears to be a certain inconsistency,
25 Your Honours, in the Prosecution position. When we
1 discussed this issue last week, the Prosecution was
2 suggesting that witness memory may have faded since the
3 time the statement was made. Well, if we accept that
4 proposition, it amounts to this: We are precluded from
5 conducting a cross-examination.
6 If the witness cannot answer
7 cross-examination because his memory has faded, and
8 they're offering a statement for the truth of its
9 contents, we can neither cross-examine the witness or
10 the statement. The Prosecution takes the position that
11 our Rules do not preclude what they are proposing. To
12 the contrary, I submit the Rules do preclude it and the
13 jurisprudence of this Tribunal clearly sets that out.
14 Rule 94 ter is immaterial to this question.
15 Affidavits are used in corroboration of other people's
16 testimony so it does not apply. We've had questions
17 about the expert. I recall Judge Wald asked me whether
18 there was a sharp distinction between what appears to
19 be the accusatory expert.
20 Well, if it's true that at times a witness
21 appears accusatory, I submit that the expert should be
22 brought up to the level of the fact witness which is to
23 say all witnesses should be heard directly on
25 The Prosecution relies on Rule 89(C) by
1 saying that these statements may be relevant and
2 probative. We say they are inadmissible under 89(D).
3 Rule 89(D) states that a Chamber may exclude evidence
4 if it's probative value is substantially outweighed by
5 the need to ensure a fair trial.
6 In my submission, this is clearly a case
7 where 89(D) would make these out-of-court statements
9 Your Honours, we were in week five or six of
10 this trial when this issue arose at week five or six of
11 this trial. The Prosecution is asking to you move the
12 goal posts mid-stream. The Prosecution is asking you
13 to reduce the notion of examination-in-chief to a
14 nonsense, to make it meaningless. They're asking the
15 witness to take the stand, adopt a statement on the
16 basis of one or two leading questions, and say "There,
17 there's your examination-in-chief. Now go ahead and
18 cross-examine that person."
19 This makes the notion of examination-in-chief
20 meaningless. Therefore, our position is as follows:
21 As I said, out-of-court statements, as Your Honour has
22 defined them are admissible for the limited purposes of
23 showing impeachment, if any, for Your Honours to weigh
24 and assess credibility, and they are not admissible for
25 the truth of their contents.
1 Your Honours have an obligation to supervise
2 proceedings, to uphold the rights of the accused, and
3 to strictly apply the statute and the rules as they are
4 set out.
5 Unless I can be of further assistance to you,
6 those are my submissions.
7 JUDGE WALD: I have one question which may be
8 a repetition of our discussion last week, but in order
9 to keep this record fairly complete, let me ask it
10 again. In your argument that Article 21(4)(e)'s rights
11 are impugned if the witness who is here, sitting in the
12 stand, is not required to give complete testimony by
13 oral evidence, and yet that's a harder proposition, at
14 least for me to accept if the witness is, in fact,
15 right there and you, the Defence counsel, can ask any
16 questions you want. You can go right down the whole
17 list and repeat, I suppose, every question in the
18 statement, should you so choose. Then why aren't you
19 fully accorded -- your clients fully accorded their
20 rights to confront the accusers and we have ability to
21 see the demeanour.
22 You could, if you wanted, and I assume you
23 accept this, if you didn't think it was worth your
24 while you could, say, stipulate to the Prosecutor and
25 say, "Look, the first half of that statement was fine
1 with us, we'll let it in," right?
2 MR. O'SULLIVAN: We could, yes.
3 JUDGE WALD: I mean you always had that right
4 even though it might cut back on our ability to see the
5 demeanour of the witness in full. So why isn't the
6 basic core of the right of your confrontation protected
7 as long as the witness is sitting there and required to
8 answer any question that's relevant that you'd put on
10 MR. O'SULLIVAN: In my submission, it goes to
11 the nature of statements taken by one of the parties to
12 a dispute. The importance of the confrontation in
13 cross-examination, in my submission, must occur when
14 the statement is made.
15 If we look at the continental system where
16 the investigating magistrate is there with the witness,
17 Prosecution, and Defence at the time of making that
18 statement, there's an independent body taking a
19 statement, the confrontation can occur at that moment.
20 And that's what can't occur when we have a statement
21 taken by a party to the dispute, not knowing what the
22 questions were, how they were put, how the witness
23 reacted. That's unfair to the fact finder. It's
24 unfair to the accused.
25 Your Honours, we have these two major legal
1 systems, and I've glossed over the continental system,
2 and there are people here who know that much better
3 than I do, the continental system, and I fail to see
4 why in the year 2000, in an international court, we are
5 trying to abandon both the history and practice that we
6 are familiar with in the common law and the safeguards
7 that we are familiar with in the civil law to come up
8 with something which is untried and fraught with
9 problems and unfairness.
10 I submit we should not embark on that
12 JUDGE RODRIGUES: [Interpretation]
13 Mr. O'Sullivan, I still have a little question for
14 you. All that you have said in relation to the rights
15 of the accused, the credibility, the observation of the
16 witness and so on is linked to the principle of orality
17 and all this is valid under the hypothesis that there
18 is no agreement between the Prosecution and the
19 Defence, am I right?
20 MR. O'SULLIVAN: By agreement and stipulation
21 to certain facts; is that correct?
22 JUDGE RODRIGUES: [Interpretation] Yes.
23 MR. O'SULLIVAN: With the stipulation to
24 facts, there's no need to bring them out in court.
25 JUDGE RODRIGUES: [Interpretation] Yes, but I
1 have another question. For those stipulations, as you
2 said, in that situation, how can I put it, can one
3 envisage, in relation to transcripts from other cases,
4 can we imagine the possibility of stipulations because
5 I see that you have included all prior statements,
6 though we did make a distinction as regards transcripts
7 from other cases, but you have included all in one
8 under the same category.
9 From your personal point of view, is it
10 possible to have stipulations regarding the admission
11 of the whole transcript and have the witness appear
12 only in cases when the Defence wishes to
14 MR. O'SULLIVAN: Not only would I agree with
15 that, I would welcome it. And it seems to me that, I
16 believe it's Rule 65, talks about the parties to
17 agreeing to certain matters of law and fact, and on top
18 of that, we have judicial notice, adjudicated facts.
19 So I agree with Your Honour. Where there is agreement,
20 that should by all means be pursued.
21 JUDGE RODRIGUES: [Interpretation] Thank you
22 very much, Mr. O'Sullivan.
23 Mr. Fila next. You have the floor.
24 MR. FILA: [Interpretation] I apologise, Your
25 Honours, for taking up part of your time but I should
1 like to assist, if I may.
2 In order to answer the questions in the order
3 you put them, I shall begin by quoting an example.
4 There is a witness whose name is Idriz Mujkic; he lives
5 in Australia. He was a detainee in Omarska. In
6 conversation with him, we came to the conclusion that
7 he would testify to the advantage of the accused
8 Radic -- on behalf of the accused Radic. Mr. Niemann,
9 as you know, lives in Australia. I asked him to take
10 that statement; Mr. Niemann did take the statement, and
11 in conformity with Mr. Niemann, I shall tender it into
12 evidence without calling the witness. Why, in a
13 situation of this kind, would I have to bring the man
14 all the way from Australia?
15 That is one example of how this matter can be
17 The other point is the following: A
18 statement, Your Honours, has several items taken by one
19 of the parties: There are the general basic
20 information, particulars, then you have the background
21 information, and then you have the time from when the
22 witness stepped into Omarska itself. Now, why would it
23 be necessary to ask the witness on the first two parts
24 of that? Can't we agree that the former witness, for
25 example, is truly a retired seamstress? So that means
1 saving a lot of time.
2 What we cannot agree on is that somebody
3 should be deprived the right of cross-examination, and
4 that is, in fact, the case that has happened during
5 this trial; that is to say, if a witness statement is
6 tendered into evidence, admitted into evidence, in the
7 additional questions asked by the Prosecutor, because
8 then do not have the right to respond in
9 cross-examination. So in a case of that kind, and that
10 is something which happened before this Trial Chamber:
11 that one of the counsel mentioned that statement and
12 then Ms. Hollis, in her additional questions, asked
13 that this be an exhibit, in her re-examination. The
14 statement made negative mention, for example, of my own
15 client and I no longer can have the right to ask any
16 questions, to re-cross-examination because it has not
17 gone through the examination-in-chief. Then that would
18 not be a fair trial and the rights of the accused and
19 the Defence counsel would have been infringed upon.
20 In the Dokmanovic case, for example -- I
21 don't want to go through it all, it has all been
22 published -- this matter was solved very simply by
23 Mr. Niemann and myself, we dealt with it very easily by
24 placing certain restrictions, limitations. A statement
25 cannot be adopted as evidence without the presence of
1 the witness unless we agree that that can be so. If,
2 in the examination-in-chief, or during the
3 cross-examination, on the other hand, the difference is
4 raised as to the difference in the written statement
5 and his testimony in court, if there is a difference
6 and discrepancy between the two, then we will uphold
7 what has been said in the testimony in the courtroom
8 and eliminate the previous statement. Finally, we
9 always agreed that the statements be adopted and
11 If you look at the statements which are eight
12 pages long, for example, the different sections might
13 be matters of interest to us, and it is that section
14 which is interesting and important for our part of the
15 story. So your decision will not be influenced by the
16 fact of whether the witness was a retired seamstress or
17 librarian or whatever but whether she was abused,
18 maltreated, beaten, and who the perpetrators of that
20 Therefore, personal particulars, the
21 background, there's no need to present that here before
22 the Court unless somebody has acquired any new
23 knowledge and information in the matter; for example,
24 that the witness has changed his address, his place of
25 residence, or a new child has been born to him, or
1 anything of that kind. So statements cannot be
2 tendered in additional examination but straight away,
3 and then we can see what we can agree on, the points we
4 can agree on before the proceedings. Any point being
5 contested must be the subject of both the
6 examination-in-chief and the cross-examination. Then
7 that is a fair and equitable trial and each party's
8 rights have been upheld, and we have tried and tested
9 the witness on the key issues, the key points.
10 That is all I wanted to say. Thank you.
11 Just one moment. I do apologise.
12 As far as the transcript is concerned of
13 previous trials, the transcripts of previous trials and
14 the statements made there by witnesses, they are public
15 documents and they cannot be eliminated, or ignored,
16 for that matter, but I do agree with Ms. Hollis that
17 you must quote them if you're going to use them. You
18 must mention them if you're going to use them for us to
19 be able to enter into polemics on that basis, but they
20 cannot replace the witness unless we agree to do so, of
21 course. That speeds up the whole process, and it
22 speeds it up quite considerably.
23 Therefore, where I agreed with Mr. Niemann
24 was under the Presiding Judge, Judge Cassese, and that
25 is what I explained to you in the Dokmanovic trial and
1 none of the parties were infringed upon. Thank you.
2 JUDGE WALD: I just have one question of
3 clarification, Mr. Fila.
4 Under the system that you would like to see
5 adopted, say the Prosecution had a witness statement
6 and they would submit it in advance, or you had it
7 already, and then you would --
8 MR. FILA: [Interpretation] You have it too.
9 JUDGE WALD: Yes. You would look at it and
10 you would say, "Well, we're not worried about what's in
11 the background of the witness or even in the events
12 leading up to Omarska, but we are worried about
13 anything that's said about the conditions in the camp,"
14 and then at that point, I just want to get this
15 straight, you would tell the Prosecution you want the
16 witness when the witness comes to be examined directly
17 on Omarska, as well as cross-examined, not what I think
18 Ms. Hollis would like which is to tender the statement,
19 including some parts of the conditions at Omarska, and
20 then just have you cross-examine.
21 I just want to make sure I understood your
22 proposition. You would say, if you contest it, you
23 want to have direct testimony as well as cross from the
24 witness directly; right? Okay. Thanks.
25 MR. FILA: [Interpretation] That is correct,
1 Your Honour, in any points that are being contested.
2 For example, if something extraordinary happens and
3 somebody comes and says that Krkan's shift was the best
4 shift, I would of course be surprised and astonished
5 but I wouldn't object to it.
6 JUDGE RODRIGUES: [Interpretation] Mr. Fila, I
7 also have another question for you. From the practical
8 point of view, could one, in your opinion, could the
9 Defence, within a reasonable time limit, say to the
10 Prosecution -- after receiving the statement and having
11 it in your hands, would it be possible to underline the
12 parts which you are ready to stipulate and learn what
13 would be contested? And then the Prosecution could
14 prepare in advance and could tender that statement
15 already marked by you, for instance, and then the
16 object of the examination-in-chief and the
17 cross-examination would be only the parts that were not
19 What would your comments be regarding this
20 practical procedure, from your standpoint?
21 MR. FILA: [Interpretation] Mr. President,
22 that is precisely what I want. That is it in a
23 nutshell. Thank you.
24 JUDGE RODRIGUES: [Interpretation] Very well.
25 Perhaps we shall give Ms. Hollis a chance to respond,
1 and then once again to the Defence.
2 Ms. Hollis, do you have any observations to
4 MS. HOLLIS: Very briefly, Your Honour.
5 Of course, in regard to your last point, we
6 would suggest that we don't need to have their
7 stipulation to offer the testimony. However, on a
8 practical note, we would suggest that if you have one
9 accused and one Defence counsel, that that may be a
10 very expeditious way to proceed; when you have five
11 accused and ten Defence counsel, which one of the
12 underlinings do you go forward with and not go forward
13 with? Now, that's a practical aspect that doesn't deal
14 with the principle you are putting forward.
15 In regard to Mr. Fila's submission, he
16 indicated to you that regarding transcripts from
17 previous trials, well, you could use those but they
18 couldn't replace the witness. Well, Your Honour, in
19 the Aleksovski case, that's exactly what happened and
20 the Appeals Chamber upheld that. A transcript from a
21 prior trial was introduced by the Defence. Now, the
22 Prosecution's objection was that they wanted the
23 witness called and in large part for the purposes of
24 cross-examination, because it's not just the accused
25 who has the right to examine the opposing witnesses,
1 it's either party. But the Appeals Chamber said not
2 only could the transcript be used but that the
3 Prosecution didn't really have the right to
4 cross-examine that witness. Now, they did allow the
5 Prosecution to put in the statement of another expert
6 but that expert was never called either.
7 So, indeed, in the evolving practice of this
8 Tribunal, you can put in a prior transcript, you don't
9 have to call the witness, and the other party, in some
10 instances which we suggest should be very rare, if
11 existent at all, the other party may not have the right
12 to even call that person and examine them. So opposing
13 counsel didn't cite that case when they were citing
14 jurisprudence that may be relevant. We suggest that
15 that is the most on-point to what we are dealing with
17 In respect of the Celebici case, we suggest
18 that that is not on point and we suggest that the
19 language there cannot be construed to say you can't use
20 a prior statement, because Defence counsel is saying
21 that the opportunity to observe the demeanour and to
22 cross-examine means they have to give oral testimony
23 only. We have stated repeatedly that that's not our
24 position; that you can observe demeanour based on
25 cross-examination, you can observe demeanour based on
1 your own questions, and cross-examination can take
2 place on prior documents.
3 In regard to the Tadic appeal judgement, that
4 is not on point either. It was not a question of
5 whether the Defence could use statements, it was a
6 question of whether if they called a witness to testify
7 and they had taken a prior statement from that witness,
8 could the Prosecution have the benefit of that prior
9 statement to determine if there were any
10 inconsistencies. So it was not the same issue at all
11 and, we suggest, is not really instructive on this
13 Regarding a witness losing their memory and
14 thus depriving the Defence of cross-examination, we
15 suggest that if a witness has made a prior statement
16 and at that time they had a memory, and now many years
17 later they come into this court, would it not be true
18 that the interest of justice should at least allow that
19 that statement be introduced if the witness adopts it?
20 And would not their current loss of memory, many years
21 after the event, be a matter of what weight, if any,
22 the Judges were to attribute to the prior statement?
23 We suggest that perhaps there's some merit to that
25 The Prosecution is not trying to change
1 things in the middle of this trial. With our very
2 first witness we raised the issue of using prior
3 statements in the form of prior testimony. We had
4 discussed before that the use of statements in this
5 trial. So contrary to Mr. O'Sullivan's assertion, we
6 are not, at a late moment, trying to change the Rules.
7 We raised this point very early on and we are
8 now at the point where perhaps we can have a
9 determination on this issue. Thank you, Your Honours.
10 JUDGE RODRIGUES: [Interpretation] Ms. Hollis,
11 I have a question raised by your comments. You
12 mentioned the Aleksovski case and I should like to ask
13 you your opinion regarding this question. How do you
14 see the transcripts from another case in the light of
15 Rule 94 ter, that is affidavits? That transcript, does
16 it have anything to do with an affidavit, could it be
17 compared or are they two quite different things? What
18 is your opinion, please?
19 MS. HOLLIS: Your Honour, the Prosecution
20 would think that there could be a technical distinction
21 between prior testimony and an affidavit. Now, 94 ter
22 has been an amended to also include a "formal
23 statement". Perhaps prior testimony would be closer to
24 a formal statement.
25 But we would suggest that 94 ter would unduly
1 restrict the use of prior testimony because we believe
2 the plain language of that Rule states you can only use
3 this affidavit or formal statement to corroborate other
4 evidence about facts at issue. We suggest you can use
5 it as direct evidence in the trial.
6 So that would be our response regarding 94
8 JUDGE WALD: Ms. Hollis, if we are supposed
9 to construe, as Mr. O'Sullivan suggested, sort of all
10 the Rules, try to make them act in tandem with one
11 another and you start out with Rule 90 saying in
12 general, in general, we're going to have live
13 testimony, and then you say, except for deposition, you
14 can use that and if you file certain things, and you
15 can use judicial notice if you file with certain Rules,
16 and 94 ter is for the affidavit evidence for
17 collaboration with notice ahead of time, and in
18 accordance with the law of the -- what is the use of
19 all of those if you can then jump all of those and just
20 go straight to a kind of Rule 89(C) type things which
21 says, listen, the court, any time it thinks anything is
22 probative and reliable, even if it's an affidavit or a
23 transcript or a statement before that, if it thinks
24 it's useful, it can use it. I mean what it's like, you
25 know, driving the old, you know a hole that you can
1 drive a truck through.
2 MS. HOLLIS: Yes, Your Honour, if I could
3 attempt to respond to that Your Honour.
4 Your Honour, I would suggest that there has
5 been an evolution in these Rules. And if we look at
6 the Rules, for example, if we look at the Rule that
7 says, in principle, witnesses will testify live. It
8 cites two exceptions but, in fact, there are four
9 exceptions today, and one of those doesn't even require
10 the witness to be present.
11 So we would suggest that, indeed, if you read
12 those as a whole what does it come down to as a core
13 question and that is the right, in particular, of the
14 accused, but we suggest the right of both parties to be
15 able to examine the evidence against them.
16 The real question here, we suggest, is how do
17 you define that? And we suggest that if a witness is
18 here ready to be examined, that is, examining the
19 evidence against you and the matter of how their
20 evidence comes to you in terms of the party presenting
21 that witness, then we suggest that there is room for an
22 evolution of that, both to expedite the proceedings to
23 truly try to proceed in the interest of justice where
24 people are talking many years after the fact, yet have
25 made earlier statements that they will adopt in the
1 courtroom. The opposing party is here to
3 Your Honours are professional judges who can
4 assign weight according to the all the circumstances
5 that come forward. So we suggest as long as this basic
6 principle, being able to examine the evidence against
7 you is adhered to, and as long as the witnesses are
8 brought to the greatest extent possible that, indeed,
9 if you read the framework as a whole that could be
11 Because from the very beginning there have
12 been countless amendments to these Rules to deal with
13 circumstances that this Tribunal faces. The bottom
14 line is a fair trial to both parties. We believe that
15 our suggested use of these statements would not deprive
16 either party of a fair trial.
17 JUDGE RODRIGUES: [Interpretation] Yes,
18 Mr. O'Sullivan. And I apologise, but I would like you
19 to consider this question: It is true that there is a
20 whole series of rights of the accused which we must
21 respect. But one of the rights of the accused is an
22 expeditious trial, and we know that there must always
23 be a balance between expeditiousness and fairness.
24 So everything we are talking about, prior
25 statements, the need to always have a witness in
1 person, to cross-examine him, to see him physically,
2 except for exceptions, would that not impinge upon the
3 principle of an expeditious and fair trial at the same
5 MR. O'SULLIVAN: The short answer to your
6 question is, in my submission, it would not the
7 overriding consideration here in the trial. Based on
8 what we say is the proper construction of the Rules and
9 the practice in this Tribunal.
10 There were three very brief points I'd like
11 to respond to. First, the Aleksovski appeal decision.
12 If there is a case that does not apply to this
13 circumstance, it is the Aleksovski appeal decision.
14 In that case, we were talking about expert
15 witnesses, and the Defence expert from the Tadic trial
16 whose testimony was used in Aleksovski was rebutted by
17 the Prosecution expert from Tadic in Aleksovski talking
18 about events in the Lasva Valley on the issue of
19 international armed conflict.
20 The second point is this: In regards to
21 memory, I raised that point with Your Honours earlier
22 because at the last Status Conference, Ms. Hollis said
24 She said at page 2682 of the transcript, "Why
25 should we force witnesses to go forward on the basis of
1 their current memory when they have given prior
2 statements? What did we learn from that? We learn
3 that memory fades over time." So it was her point not
5 But if she's correct, as I pointed out
6 earlier, I submit there's a problem. The witness will
7 say, "My memory is not as fresh as it was," so on the
8 basis of a statement, I can't cross-examine the witness
9 and I certainly can't cross-examine the statement.
10 And lastly with Rule 90, Ms. Hollis is quite
11 correct, there are two exceptions to Rule 90 within
12 Rule 90. All the other exceptions fall outside Rule
13 90. They are not testimony.
14 Those are my submissions, Your Honour.
15 JUDGE RODRIGUES: [Interpretation] Mr. Fila,
16 do you have any final observations to make, no?
17 I think we shall think over this point and we
18 will render our decision. So we can now go on to the
19 second agenda item, the use and admission of
20 photographs. Questions arose when two types of
21 photographs were used.
22 Mr. Fila, I see you are on your feet. Do you
23 want to say something?
24 MR. FILA: [Interpretation] Mr. President, it
25 is also the quality of the photographs that is in
1 question and the way in which they are presented. The
2 photograph might have been shown, taken from another
3 angle of an individual.
4 JUDGE RODRIGUES: [Interpretation] Mr. Fila,
5 can you let me finish, please? I am just opening the
6 discussion here.
7 I was saying, there have been questions posed
8 regarding the use of two types of photographs. And if
9 I don't cover the whole issue, you will have a chance
10 to do so. For example, a photograph showing injuries,
11 others showing different persons. For instance, this
12 is an example, generally speaking, photographs come
13 under the same Rules as the other exhibits and are
14 therefore admissible within the bounds of Rule 90 of
15 the Rules of Procedure.
16 It is up to the parties to contest the
17 admission of such a document, to make a showing that
18 they are not pertinent or that their admission do not
19 conform to the principles of a fair trial.
20 To facilitate the discussion, it would be
21 desirable that the parties producing photographs should
22 also supply all information about origin, date, and the
23 objects they show. It would also be necessary that the
24 parties should be particularly careful when persons are
25 entailed to avoid any direct or indirect challenge to
1 the identity.
2 Madam Prosecutor, regarding the photographs
3 of bodily injuries, can you respond to the objections
4 of the Defence or will you withdraw your submission for
5 their admission?
6 MS. HOLLIS: Your Honour, we can respond to
7 the objections. As the Prosecution recalls that there
8 were two objections to the photograph which was 3/31,
9 and the objection, I believe, was by Defence counsel
10 for accused, Radic. The first objection was he had no
11 idea where this was taken or the circumstances.
12 We point out to you that 3/31 was included in
13 our list of exhibits and it does indicate that it is a
14 photograph of the bruises on a person by the name of
15 Jakupovic and the photograph was taken by Dr. Idriz at
16 Trnopolje. So indeed in the index it did indicate
17 where the photo was taken, who was in the photo, and by
19 Secondly, the objection was that the
20 photograph didn't show accurately injuries because
21 Defence counsel indicated he had never seen a person
22 who looked like that.
23 Your Honour, the photograph was shown to the
24 witness and the Prosecution recalls that the question
25 to the witness was, "Does this photograph show the
1 types of injuries you observed on detainees at
2 Omarska?" And the witness indicated yes, the
3 photograph did show the types of injuries the witness
4 had seen on detainees at Omarska.
5 We suggest, Your Honour, that when a
6 photograph is used in that way, it really doesn't
7 matter who it is in the photograph, when it was taken
8 or by whom. The relevance is what is depicted on that
9 photograph is consistent with the kinds of things the
10 witness saw at the named location. So we suggest that,
11 indeed, that photograph should be admissible.
12 If the Defence has questions of the witness
13 about were the bodies really that red or the bruises
14 really that black, they can pose those questions to the
15 witness. But the witness has told Your Honours that,
16 indeed, what was shown on that photograph was
17 consistent with what that witness observed on bodies of
18 detainees at Omarska. That is how we would respond to
19 that photograph.
20 In terms of single photographs of individuals
21 who may be suspects, I believe that's what Your Honour
22 was talking about, where identity may be an issue, is
23 that -- I believe that's what you were talking about,
24 the Prosecution is certainly aware that where accused
25 are still named in our indictments and yet we do not
1 have them in custody or if we have them in custody but
2 identity is in dispute, that a single photograph shown
3 to witnesses would potentially have problems in terms
4 of any identification that was made and any weight that
5 could be assigned, the single photographs that have
6 been shown in the courtroom have not been of persons
7 who remain as accused in cases before this Tribunal.
8 But we are cognisant of that issue and the fact that we
9 could be jeopardising identifications if we used single
10 photographs for people.
11 If Your Honours have no questions, those
12 would be my comments on photographs as evidence.
13 JUDGE RODRIGUES: [Interpretation] Thank you,
14 Ms. Hollis. The Defence.
15 MR. FILA: [Interpretation] I apologise for
16 interrupting you, Mr. President, I thought you had
17 opened the debate.
18 The first thing I wanted to say was that I
19 did not see the original of the document at the time.
20 It was a poor copy of a document where the man seems to
21 be red like a red Indian, if I may use that comparison,
22 and he was particularly red on his shoulders. So there
23 is no Slav that is as red as that, except perhaps when
24 he's sunburnt.
25 The danger of using poor quality photographs,
1 and photographs taken from another location is that it
2 questions our intelligence. Do we know what injuries
3 look like? Should I now bring you from Belgrade all
4 the bodies, the dead bodies that I've seen in the
5 course of my practice, and I've seen many thousands,
6 and whether dead people looked like that, the ones that
7 were aligned around the "white house".
8 So this is bringing somebody's intelligence
9 into question. If we're talking about a bruise, we
10 know what a bruise is, but if you have a man who was in
11 Omarska and you have a photograph of that injury and
12 wound on that particular person, then that is relevant
13 to Article 5 of the Statute and that's another story
14 and I have nothing against that, of course. I'm not
15 contesting that at all. But this is Trnopolje. Some
16 man, who knows who it is. It's a poor-quality
17 photograph. I don't mind if you adopt that, it won't
18 make any difference to me, but I think it's useless, a
19 useless exercise, and it just shows that we don't know
20 what a bruise looks like and we need the witness to
21 tell us that a bruise is, in fact, what is shown on the
22 photograph, which, as I say, is a poor-quality one at
24 That's all I wanted to say. Thank you, Your
1 JUDGE RODRIGUES: [Interpretation] Mr. Fila,
2 you spoke on behalf of all Defence counsel, or only in
3 your own name? All right, then. Thank you.
4 Ms. Hollis, any comment?
5 MS. HOLLIS: Very briefly, Your Honour.
6 Does it really question the intelligence of
7 the people in the courtroom to look at a picture like
8 that? How many people have seen bruising that is that
9 deeply black? How many people have seen that degree of
10 bruising on a body? So to show the degree and the
11 seriousness of the mistreatment of prisoners in these
12 camps, we suggest, is very relevant to see what these
13 people would have looked like.
14 Secondly, Your Honour, we're talking about
15 people here that the Prosecution has alleged are the
16 leadership in the camp, and one of the things is did
17 they know what was going on so that they could
18 interfere? If you see a person who has deep black over
19 his kidneys and bruises and cuts on his body, should
20 you take notice of that if you're a leader? It's
21 relevant to issues in this case, Your Honour.
22 So we suggest that, indeed, not everyone has
23 seen bruising that severe or that widespread on a body
24 and that it is relevant to issues that you have before
25 you here. We suggest it does not insult your
1 intelligence but, we believe, would assist the
2 fact-finder in making determinations here.
3 JUDGE RODRIGUES: [Interpretation] Mr. Fila.
4 MR. FILA: [Interpretation] I spoke about a
5 photograph where you can see a red man with something
6 even redder on his back. I didn't see a photograph
7 with cuts, with something black on it. Take a look at
8 the photograph in question. And another thing, it is
9 just a poor-quality photograph. It's a copy, it's a
10 photostat; it's not the original, and that is an insult
11 to my intelligence, and that is the experience and
12 practice of all of us. We've all seen bruises but we
13 ought to see bruises from Omarska. If you ask someone
14 about that, then you should be showing that, and then
15 if you show something red, you can't say that it was
17 What you have just received is something red
18 on red with something even redder, and on the person's
19 back at that. That's what I was talking about.
20 JUDGE RODRIGUES: [Interpretation] Mr. Fila, I
21 have this question for you: I know that that may be an
22 insult to your intelligence because I know that you're
23 very intelligent, but there is something else.
24 Mr. Fila, we are delivering justice for the benefit of
25 the public too who are not so familiar with these
1 things like we are. But if you think about the public,
2 do you think that that photograph may be useful or
4 MR. FILA: [Interpretation] In my legal
5 system, the Trial Chamber has in all its competencies,
6 and I'm sorry that you do not have those competencies.
7 I do not want to deprive public opinion of the
8 possibility of seeing the inhumane conditions which,
9 let me repeat, I say did exist in Omarska. But I think
10 that the photograph must be an original so that you can
11 see what Ms. Hollis is referring to, and not a witness
12 to be asked to look at a poor-quality photograph and
13 say, "Was it like this? Is this what it looked like?"
14 and I think that it should be stated that this is not a
15 photograph from Omarska, et cetera.
16 Let us take it the other way round. You
17 could take it from forensic medicine textbooks, because
18 we all had to pass a forensic medicine examination, at
19 least in our system. You have all manner of
20 photographs, so why shouldn't Ms. Hollis resort to a
21 medical textbook, a forensic textbook, and refer to
22 injuries and wounds contained in those textbooks? And
23 then she can ask the witness whether he or she saw
24 injuries to that effect.
25 JUDGE RODRIGUES: [Interpretation] Thank you
1 too. To clear up a point, when I said to show to the
2 public, it's not in order to make a show of it but from
3 the standpoint of justice. We can close the discussion
4 on this point too and proceed to the third point or
5 third item of the agenda, that is, Judges' questions.
6 As you know well, the Judges have the right
7 to conduct the debates to ensure the best justice and
8 the best administration of justice, the distinction
9 that I have already made today regarding the order of
10 the presentation of evidence, in accordance with the
11 provisions of Rule 90, all the powers incumbent upon it
12 from Rule 98 to request additional evidence or to call
13 additional witnesses.
14 It is therefore natural for the Judges to put
15 questions to a witness. One can say this to address
16 all the questions that we discussed today regarding the
17 common law and civil law system. We have gone beyond
18 that stage and we are now talking about the Tribunal
19 system itself.
20 In exceptional cases, the Judges speak only
21 after the parties have completed their
22 examination-in-chief, their cross-examination, and, if
23 any, re-examination, in order to clear up and present
24 their points of view.
25 As you know, Rule 95(B) says, at one point,
1 that the witness is first questioned by the party
2 calling him, but Judges may also ask any questions of
3 the witness at any stage of the proceedings. We have
4 come to an agreement in the Chamber that if there is a
5 point that needs to be clarified straight away, we may
6 intervene -- of course Judges can ask questions at any
7 point of time -- but we have agreed to ask questions
8 preferably after the questions of the parties, because
9 after all, the parties should be given the opportunity
10 to put their questions to the witnesses, and at the
11 end, the Judges will put theirs.
12 At the end of that procedure, it is assumed
13 that the parties have exhausted the questions that they
14 had for the witness. It appears, therefore, except in
15 the case of clear error, for example, regarding the
16 name of a town or a person, or lapses, the party should
17 not take the floor again whereby they would be running
18 the risk of entering into polemics between the Judges
19 and one of the parties, which would be contrary to a
20 good administration of justice.
21 On the other hand, it is up to the parties to
22 present any opposing arguments either by bringing in
23 other witnesses or by presenting their submissions in
24 the course of their rebuttal case or in their written
25 or oral submissions.
1 All that I have said is a question open for
2 discussion. Have you any observations to make
3 regarding what has been said? My question is first
4 addressed to the Prosecution.
5 Ms. Hollis.
6 MS. HOLLIS: Thank you, Your Honour.
7 Your Honour, certainly the Prosecution is
8 aware of the Rule that allows Your Honours to ask
9 questions and we believe that that Rule is a very wise
10 one and allows Your Honours, who are the fact-finders
11 in the case, to ask any questions necessary to clear up
12 matters in your own mind.
13 The Prosecution would suggest, however, that
14 an opportunity be given to the parties following
15 questioning by the Judges to ask if the parties have
16 any follow-up questions that are raised based on the
17 questions Your Honours have asked. We believe that
18 this would be a very limited sort of questioning, but
19 we believe there could be instances where either party
20 would have follow-up questions.
21 Certainly this counsel's personal experience
22 in the Tadic case was that the Judges asked
23 questions -- they were very actively involved, as Your
24 Honours are -- and then at the conclusion of their
25 questions, they asked each party if any party had
1 questions based on what the Judges had asked. So we
2 would suggest that that is a possible procedure that
3 could be very closely guarded by Your Honours but that
4 anything coming up in the course of your questioning
5 that hadn't been covered earlier, the parties would
6 have the right to do so.
7 We would not disagree with the Defence, in
8 principle, that if a question is asked which appears to
9 be contrary to the testimony, that perhaps the party
10 can raise concerns about that. The Prosecution is not
11 at all sure that a party can object to what a Judge
12 does, but perhaps if a party has a concern about the
13 content of a question, they could raise their concerns
14 at that moment so that Your Honours would be aware that
15 perhaps the transcript isn't exactly as you thought it
16 would be. The reason the Prosecution believes that
17 this could be of assistance to you is that as trials go
18 along and transcripts become several thousands of pages
19 in length, it's sometimes difficult to go back and pick
20 up each one of those instances and clarify it later.
21 Your Honours, that would be the Prosecution's
22 submissions on this issue.
23 JUDGE RODRIGUES: [Interpretation] Is there
24 anyone to respond on behalf of the Defence?
25 MR. K. SIMIC: [Interpretation] Your Honours,
1 on behalf of the Defence teams, Mr. O'Sullivan will be
2 taking the floor, but Mr. Fila reserves the right after
3 Mr. O'Sullivan's address to make his own statement.
4 JUDGE RODRIGUES: [Interpretation] Very well.
5 Thank you, Mr. Simic.
6 Mr. O'Sullivan.
7 MR. O'SULLIVAN: First of all, I'm happy to
8 report that we did discuss this with the Prosecution
9 beforehand and we find Ms. Hollis' suggestions
10 extremely reasonable, and the follow-up questions may
11 be an avenue to pursue depending on the nature of the,
12 for lack of a better word, objection or point of
14 As far as the second proposal, it may indeed
15 be the result of a lacunae in the Rules, the way in
16 which a party brings to the attention of a Judge what
17 that party considers to be a misformulation of what the
18 witness said. Again, I agree with what Ms. Hollis has
20 When this issue first arose several weeks
21 ago, I mentioned Rule 5 objections because there was no
22 other basis to bring this to the attention of the Trial
23 Chamber. So there's, perhaps, room there for
24 improvement in the Rules. But in the meantime, if we
25 can adopt a procedure by which we voice our views,
1 because we are, after all, required to create a record
2 both for these proceedings and any subsequent
3 proceedings. So there must be a mechanism for all
4 parties to raise these matters with the Chamber.
5 Those are my observations.
6 JUDGE RODRIGUES: [Interpretation] Thank you
7 very much, Mr. O'Sullivan.
8 Mr. Fila, do you have any additional
10 MR. FILA: [Interpretation] No, Your Honour,
11 not to what has been said.
12 But I should just like to give an explanation
13 and apology to Judge Riad. The whole thing began by a
14 comment -- that is to say, Judge Riad quoted the
15 witness as saying something in a different manner than
16 the witness actually said, and I made a comment.
17 I did not say that the witness did not
18 mention Krkan's shift as being the worst. The remark
19 by the Defence, and it can be seen on the transcript at
20 page 2274, relates to a single word there, one single
21 word, and the word was "cruel" or "svirep" in our
22 language. In one of your languages, it is "cruel" in
23 French or "cruel" in English. "Cruel." Judge Riad
24 used the words "most cruel" because he was speaking in
25 English on the occasion, and I reacted to that and said
1 that the witness did not, in fact, use these two words,
2 "most" or "cruel" or "plus cruel" in French.
3 Why? Because I did not wish to hurt Judge
4 Riad in any way, offend Judge Riad in any way, and if I
5 did offend him, I should like to offer my deep-felt
6 apologies. That was not my intention at all.
7 In my own country's Criminal Code, you have
8 the category of murder, and then you have the category
9 of cruel murder. The difference is in the death
10 sentence penalty. Each murder implies a certain dose
11 of violence. For murder proper, we provide a sentence
12 ranging up to 15 years' imprisonment. If the murder
13 was committed in a cruel manner, if it is termed a
14 cruel murder or especially cruel, or whatever, then the
15 death penalty can be invoked. That is the sole
16 reaction, my sole reaction in saying that the witness,
17 on page 2338 and 2339 did not use the word "cruel."
18 If I offended Judge Riad in any way, I do
19 apologise. But I just wanted to say that the witness
20 did not state that, and that is what I wanted to say by
21 way of explanation and apology.
22 JUDGE RIAD: I just want to thank Mr. Fila
23 and tell him that I appreciate very much his
24 intervention. Thank you.
25 JUDGE RODRIGUES: [Interpretation] Ms. Hollis,
1 do you have any additional remarks or observations to
3 MS. HOLLIS: No, Your Honour.
4 JUDGE RODRIGUES: [Interpretation] I see it is
5 2.25 and we still have at least six items to discuss.
6 As you see, we are having a lot of discussions here.
7 So I think that we really will have to continue in the
9 The question I would like to put is to see
10 whether we should resume at 4.00 or earlier. Half past
11 three, I don't know if that would suit everyone, to
12 have an hour's break and resume then. Otherwise, we'll
13 be waiting for an hour and a half until 4.00. So I
14 don't know.
15 What do you think, Ms. Hollis? Let me
16 consult the parties about this.
17 MS. HOLLIS: We're prepared to proceed
18 whenever you wish, Your Honours. Any time is fine with
20 JUDGE RODRIGUES: [Interpretation] Even after
21 a half-hour break?
22 MS. HOLLIS: Yes, Your Honour.
23 JUDGE RODRIGUES: [Interpretation] And the
25 MR. K. SIMIC: [Interpretation] Our answer to
1 that question is identical, Your Honours.
2 JUDGE RODRIGUES: [Interpretation] Very well.
3 The same answer. Excuse me.
4 [Trial Chamber confers]
5 JUDGE RODRIGUES: [Interpretation] Madam
6 Registrar, are there any difficulties from the point of
7 view of the registrar if we have a
8 three-quarters-of-an-hour break and then resume?
9 THE REGISTRAR: The accused may need more
10 time. They could use one hour.
11 MR. K. SIMIC: [Interpretation] The accused
12 say that they have no need for any additional time,
13 Your Honours.
14 JUDGE RODRIGUES: [Interpretation] Then we're
15 going to have a break of 45 minutes. We will resume at
16 a quarter past three.
17 --- Recess taken at 2.28 p.m.
18 --- On resuming at 3.23 p.m.
19 JUDGE RODRIGUES: [Interpretation] You may be
21 We are now going to go on to the fourth item
22 of the agenda, the defence of alibi. The question
23 appears to have been raised by Mr. Zigic's Defence.
24 The Chamber would like to know what exactly
25 is entailed drawing the attention of the Defence
1 counsel to the provisions of Article 67, paragraph A of
2 the Rules. The Chamber is ready to discuss this matter
3 now unless the parties wish to make additional written
4 submissions or to have a separate hearing with the
5 Defence counsel of Mr. Zigic.
6 What is the exact position of the Defence
7 counsel of Mr. Zigic regarding this matter? Who is
8 going to take the floor, Mr. Tosic?
9 MR. TOSIC: [Interpretation] Your Honours, my
10 colleague, Mr. Stojanovic, will be presenting our views
11 in respect of this matter. Thank you.
12 JUDGE RODRIGUES: [Interpretation] Very well,
13 thank you. Then, Mr. Stojanovic, you have the floor.
14 MR. STOJANOVIC: [Interpretation] Thank you,
15 Your Honours. The Defence of Mr. Zigic unfortunately
16 has only recently heard about and been told that it
17 will be using this defence during this trial, and I
18 think that we informed our learned colleagues of the
19 Prosecution within a reasonable time span, and we hope
20 that that is all right and is -- will not leave the
21 Prosecution without the possibility and the necessary
22 time to prepare for this kind of defence, and it is the
23 defence of alibi only with respect to one event.
24 And we have submitted a letter to Ms. Hollis
25 in which we state specifically what counts of the
1 indictment we refer to and the methods for our
2 defence. It is the Keraterm event. We have still not
3 arrived at that, and we don't know if we will be
4 robbing the Prosecution of their valuable time by
5 stressing this now.
6 On the other hand, collecting evidence and
7 proof for this type of event is still an ongoing
8 process. We have already got some witnesses, found
9 some of them, but we are still searching for others.
10 I should just like to request that if the
11 discussion in this matter is extended, that it should
12 not be in public session because in our letter, we name
13 names, the names of witnesses to the letter -- in the
14 letter to the Prosecution and we demand protective
15 measures for those witnesses. We ask that they be
16 protected witness.
17 And I hope that the Prosecution will accept
18 this manner of disclosure with the slight delay that
19 exists but nonetheless, having said that -- it does
20 come under Rule 67(B) and comply with that Rule and
21 does not exclude the possibility of this type of
22 defence even subsequently, thank you.
23 JUDGE RODRIGUES: [Interpretation]
24 Mr. Stojanovic, how do you see the situation in view of
25 the provisions of Article 67 which says "as soon as
1 possible" and, in any event, before the beginning of
3 You know that the trial started on the 28th
4 of February. What is your response to this question?
5 MR. STOJANOVIC: [Interpretation] Your
6 Honours, I consider that you are completely correct in
7 referring to that provision but I think that subrule B,
8 subsection B of that same Rule does provide for that
9 possibility and, on the other hand, we feel that this
10 is not an unfair procedure as the opposite side in our
11 view, and they are competent of assessing how long the
12 testimony of their witnesses would last with respect to
13 Keraterm and when they wish to begin that. But I don't
14 think it is unfair and happily, because the testimony
15 with respect to the events in Keraterm have not yet
16 started. We have not yet heard testimony about
18 Let us remind you that this is an alibi for
19 an event that took place on the 24th of July. It says
20 2000, and that is an error here, it should state 1992.
21 So the 24th of July 1992, that is the event.
22 And I think that it is in the interests of
23 justice for you to allow us to have certain witnesses
24 state that Mr. Zigic at the relevant time, in the
25 relevant period, was not at the scene of the crime and
1 that they can confirm this through their testimony. So
2 I think that the subsection B of the Rule does give
3 scope to the Defence for this. Of course we are fully
4 conscious of the fact that we have not fully complied
5 with the provisions of the -- what you have just
6 stipulated. Thank you.
7 I apologise, but may I just say that perhaps
8 we could hear the official stand of the opposite side.
9 Of course, I never view them as the opposite side or
10 party, but perhaps they can help us and state their
12 JUDGE RODRIGUES: [Interpretation] Yes. Thank
13 you very much, Mr. Stojanovic. We're going to hear the
14 views of the Prosecutor.
15 Ms. Hollis, please.
16 MS. HOLLIS: Thank you, Your Honour.
17 Your Honour, we have received an initial
18 notification that the Defence does intend to proceed
19 with alibi as to that specific date, for the specific
20 event that may have occurred in Keraterm on that date.
21 We have also been given notice that this is a
22 provisional notice that we have received from the
23 Defence and that they have not yet been able to locate
24 all potential witnesses on the alibi defence.
25 Your Honours, we also note the language of
1 the Rule that says that in any event prior to trial
2 such notice may be given. That language aside, Your
3 Honour, the Prosecution believes that, as we understand
4 what the Defence has explained to us, we should have
5 sufficient time to be able to deal with this defence.
6 So at this point we would not rely on the plain
7 language of the Rule and ask Your Honours to preclude
8 the Defence. Should they come in at a much later date
9 with a very long list of witnesses, perhaps we won't be
10 able to meet it, but we're not in a position now to
11 argue that you should deny them this defence. We would
12 not argue that.
13 We do note, Your Honour, that subsection (B)
14 of the Rule does not give the party the right to
15 proceed with other witnesses on it but indicates the
16 accused may testify about it. But again we believe, at
17 this point at least, that we would be able to
18 adequately prepare for this defence.
19 As I indicated, just to make it clear, our
20 position could change depending on how much later we
21 get the full notice and how many witnesses are
22 involved, but for now we think we could prepare.
23 JUDGE WALD: Ms. Hollis, are you able, at
24 this point, to give us some approximation of -- if you
25 did get -- the provisional notice became an absolute
1 notice, say, within the next -- to the end of this
2 month or within the next three weeks, along with a list
3 of however many witnesses the Defence wanted to call,
4 would that significantly expand the amount of time that
5 you think you'd need to complete the Prosecution's
6 whole case? And if so, by roughly -- it's hard to
7 estimate but by some measure of how much?
8 MS. HOLLIS: It's difficult to say in the
9 abstract, Your Honour --
10 JUDGE WALD: Yes, I know.
11 MS. HOLLIS: -- but we think that in terms of
12 our case in chief, that may not duly expand it. We
13 anticipate that once we actually heard the alibi
14 defence presented in the Defence case, that may expand
15 a rebuttal case. But in terms of our case in chief, at
16 this point we don't really think it would significantly
17 expand it, and perhaps would not expand it at all.
18 JUDGE WALD: Thank you.
19 JUDGE RODRIGUES: [Interpretation]
20 Mr. Stojanovic, have you any additional observations?
21 What is the date that you envisage by which you would
22 be able to submit this notification?
23 MR. STOJANOVIC: [Interpretation] Your
24 Honours, our request comes together with a
25 reservation. We know about one more witness who is in
1 Germany, but we do not know his address. All the
2 others we state here and we have their statements as
3 well, and I think that that would be fair vis-à-vis the
4 Prosecution to give them those -- supply them with
5 those statements.
6 So, Your Honours, as we have not complied
7 with this on time, we will abide by your rulings and
8 the opposite side. We could supply this information
9 within the space of three days. We would welcome a
10 longer period because of this one additional witness,
11 but as I say, in the present situation we feel it to be
12 our duty to comply with any decision that you reach,
13 and in line with the Prosecution.
14 The problem is actually just this one witness
15 who is in Germany. He is a Muslim, according to our
16 information, and that would require more time, for that
17 one witness. But if we may, we would -- if it is not
18 too much to ask, then by the end of next week. We
19 would supply the Prosecution with this information by
20 the end of next week.
21 JUDGE RODRIGUES: [Interpretation] I think
22 that it would be proper to make a written motion about
23 this, and the Chamber will make its ruling.
24 Do you have any additional questions,
25 Ms. Hollis, about what has just been said by
1 Mr. Stojanovic?
2 MS. HOLLIS: No, Your Honour.
3 JUDGE RODRIGUES: [Interpretation] In that
4 case, we can go on to the fifth item of the agenda, and
5 that is request for an expert opinion, for a medical
6 expert opinion, especially a psychiatric or
7 psychological expert opinion, must be motivated and
8 must allow the Judges to define as precisely as
9 possible the mission to be entrusted -- the experts
10 would be entrusted with.
11 Regarding the latter, the Chamber would like
12 to draw the attention of the parties to the provisions
13 of the Rules regarding the possibility of designating
14 such and such an expert, and specifically we are
15 referring to Rule 78 [sic], and not 68, 78 bis, which
16 says that it is important that the experts can appear
17 as neutral as possible in the judicial process,
18 strictly speaking.
19 It would also be appropriate that requests
20 for expert opinions should be used only for their
21 specific purpose, and that is to inform the parties and
22 the Judges regarding a specific technical point.
23 Therefore, they should be distinguished from other
24 motions which the parties may submit.
25 The question is the following: Do you have
1 any comments to make regarding this specific point?
2 Ms. Hollis.
3 MS. HOLLIS: Your Honour, I apologise, but
4 what Rule did you refer us to? Perhaps I don't have
5 the right book. Did you say Rule 78 bis?
6 JUDGE RODRIGUES: [Interpretation] 78 bis,
7 yes. I apologise, 74 bis. I'm sorry, you are right.
8 Thank you very much, Ms. Hollis, I made a mistake.
9 MS. HOLLIS: Your Honour, we certainly would
10 have no opposition to the Trial Chamber acting pursuant
11 to this Rule. We would suggest that some type of
12 showing would need to be made to a Trial Chamber to
13 move forward and appoint such an expert, but it could
14 perhaps best assist the Court by using this type of
15 procedure, especially if the moving party envisions
16 that based on the findings they will present a certain
17 Defence or a certain position at trial so we would
18 certainly have no objection to the Trial Chamber acting
19 pursuant to this Rule.
20 JUDGE RODRIGUES: [Interpretation] Thank you
21 very much, Ms. Hollis. Are there any observations on
22 the part of the Defence, any of the Defence or not?
23 MR. K. SIMIC: [Interpretation] No comments,
24 Your Honour. We accept what has been said.
25 JUDGE RODRIGUES: [Interpretation] Fine.
1 Thank you very much. So we can go on to the sixth
2 item, sixth and seventh. I think we should take them
3 together, depositions by Presiding Officers and
4 timetable. These questions are perhaps linked together
5 as I just said.
6 According to what has been announced, the
7 Prosecutor should complete the presentation of evidence
8 in its case in chief in 38 days. The Prosecutor lost
9 three days for reasons we are well aware of.
10 Therefore, 35 days of hearings remain. On this day, I
11 think that the Prosecutor has used 11 and a half days
12 of hearings and I wish to check this with the
14 Madam Registrar, can you tell us how many
15 days the Prosecution has used so far?
16 THE REGISTRAR: So far they used 2566
17 minutes. Sorry.
18 JUDGE RODRIGUES: Oh my God.
19 THE REGISTRAR: It's very precise.
20 JUDGE RIAD: How many seconds?
21 JUDGE RODRIGUES: [Interpretation] Maybe we
22 should multiply by 60. 120.000, so how many days is
24 THE REGISTRAR: 12 days.
25 JUDGE RODRIGUES: [Interpretation] It is a
1 little more than I estimated. I forget some minutes
2 yesterday and then today also, so 12 days, 12 and a
3 half days. About 23 days are left or 24 and a half --
4 no, 22 and a half. So that is less than five weeks of
6 I turn now to the Office of the Prosecutor to
7 ask Ms. Hollis in view of the witnesses that you have
8 already called and the decision of the Chamber
9 regarding judicial notice. Can you tell us how we
10 stand, Ms. Hollis?
11 MS. HOLLIS: Thank you, Your Honour. Your
12 Honour, first of all we disagree with those figures as
13 to 12 days. I didn't have sufficient mathematical
14 ability to go to medical school --
15 JUDGE RODRIGUES: [Interpretation] Minutes or
17 MS. HOLLIS: I think, Your Honour, it's more
18 like ten days. And also, Your Honour, I would ask if
19 the days when we were appropriately in Status
20 Conferences are being used in that computation as well
21 so I'm not sure that we would agree with those number
22 of days. But that aside, let me tell you where we
23 think we are in terms of our evidence.
24 We were looking at our evidence yesterday and
25 our witness list as a result of a recent decision of
1 the Trial Chamber and in terms of our deposition
2 witnesses that we had listed, at least four of those
3 witnesses will not be called, and we believe it's very
4 likely that we would not depose any of those
6 But certainly in terms of in our list of 28
7 April under deposition witnesses, number three, number
8 four, number five and number six would not be called.
9 And we're looking at whether we would need to depose
10 number one and number two. At this point we think
11 probably we would not depose them.
12 Now, in terms of the remainder of the case,
13 we've also looked at our witness list with the decision
14 in mind and based on our calculations, we believe that
15 as of this time, we would have 96 hours of witness
16 testimony. That is if we do not have to call experts
17 on proof of death.
18 Now, if we were to have to call experts on
19 proof of death, it would be our intention to put the
20 experts on and present their statements to the court
21 and not carry them through a direct examination. So in
22 terms of additional time for direct examination of
23 these experts, that would be limited to the time it
24 would take them basically to authenticate their
25 report. And, again, we don't know what the posture of
1 their evidence would be towards the end. We may not
2 have to call proof of death expert witness testimony at
4 Your Honour, in regard to the time and the
5 estimates for our witnesses, we certainly do not
6 contest in any way losing the three days, that's not
7 what I'm about to talk about, but perhaps we
8 misunderstand the use of these estimates because we
9 realise and we've been very mindful that we have got
10 over our estimates, but our understanding is that our
11 estimates are only for direct examination. They do not
12 include cross-examination. So when we give the number
13 of hours we think is necessary in these estimates, it's
14 for direct examination.
15 So if we're counting the number of days we're
16 in court, that's a bit misleading as well because that
17 includes cross-examination of the witnesses. So
18 perhaps we need to look at this and refine our numbers
19 a little better. But as we believe now, we would take
20 approximately 96 hours in court to put on the rest of
21 our case with the proviso I gave about expert witnesses
22 for proof of death.
23 JUDGE RIAD: And without cross-examination.
24 MS. HOLLIS: Yes, Your Honour. That's based
25 on adding up our estimates.
1 Now, we believe in any trial as we go along
2 and we see the evidentiary posture, it's possible to
3 further refine our witness list and drop witnesses
4 out. But to ensure that we give you a full picture and
5 basically a worst-case scenario, that is what we're
6 giving you, 96 hours.
7 And if we have misunderstood the estimates,
8 please let us know that, but our understanding is that
9 these are estimates of our time on direct examination.
10 JUDGE WALD: If I might ask, have you been
11 able -- you may not have made this calculation, but
12 based on the experience so far, have you been able to
13 make any correlation between the time that you
14 estimated or even the real time that your direct did
15 and the time for cross? I know is varies between
16 witnesses, but on average.
17 MS. HOLLIS: You know, Your Honour, we
18 haven't. The Prosecution has been very observant and
19 very appreciative of the Defence approach to
20 cross-examination. We believe that it's been very
21 direct and certainly not unduly long at all, but in
22 terms of a correlation we haven't been able to make
24 JUDGE WALD: Okay.
25 JUDGE RODRIGUES: [Interpretation] Yes,
1 Ms. Hollis. I think we have to reassess the situation,
2 yes. Perhaps I could make this suggestion to you, we
3 will study the matter within the Chamber and we will
4 tell Mr. Olivier Fourmy to get in touch with you to
5 have a more precise calculation. Perhaps that is the
6 best way to deal with this matter.
7 Are you in agreement with that, Ms. Hollis?
8 MS. HOLLIS: We would appreciate that, Your
9 Honour. Thank you very much.
10 JUDGE RODRIGUES: [Interpretation] Fine.
11 Are there any comments on the part of the
12 Defence? No comments.
13 MR. K. SIMIC: [Interpretation] No comments,
14 Your Honours.
15 JUDGE RODRIGUES: [Interpretation] Very well.
16 Thank you very much.
17 I should like to remind you that we will have
18 at least eight days of hearings in July and that we
19 will resume our hearings of this case on the 28th of
20 August; that is just so that you should be informed.
21 But as I have said, we will make our own estimation.
22 We are going to communicate through the legal officer
23 with Ms. Hollis to see whether our estimates coincide
24 or not, and after that we will inform the parties.
25 In any event, there is one other matter which
1 perhaps needs to be taken up, and that is the question
2 of depositions by Presiding Officers.
3 I have the impression that the witnesses that
4 the Prosecutor has put on his list for depositions were
5 witnesses who should testify about historical
6 circumstances, et cetera, et cetera. I don't know
7 whether the Prosecutor wishes to abide by this, taking
8 into account the question of judicial notice. How do
9 we stand in regard to this question of deposition
11 MS. HOLLIS: Yes, Your Honour.
12 In regard to deposition witnesses for the
13 Prosecution, we will definitely not call the last four
14 that are listed; we will not take depositions from
15 them. We are evaluating whether we need to depose the
16 first two witnesses and have not reached a final
17 decision, but it appears that we would not be deposing
18 them either. So at most we would depose two, and
19 probably we will depose none.
20 JUDGE RODRIGUES: [Interpretation] So when the
21 legal officer talks to you, Ms. Hollis, perhaps, if you
22 have a final opinion by then, you could let us know so
23 that we can organise ourselves. Do you agree,
24 Ms. Hollis?
25 MS. HOLLIS: Of course, Your Honour.
1 JUDGE RODRIGUES: [Interpretation] Do you
2 agree and do you accept? I must be very precise.
3 MS. HOLLIS: I make an informed, voluntary
4 acceptance of that, Your Honour.
5 JUDGE RODRIGUES: [Interpretation] Thank you
6 very much, Ms. Hollis. Thank you.
7 So regarding the Defence, still on the
8 question of deposition witnesses, I had the impression
9 that perhaps those depositions could occur sometime
10 between the end of the Prosecution case and the
11 beginning of the Defence case. I would like to know
12 what comments the Defence would have.
13 We're still rather far from that issue, I
14 know it is early to talk about the preparation of the
15 Defence, but I know that there may be a certain anxiety
16 on the part of the Defence regarding the
17 cross-examination, and I wish to remind you that you
18 have your own case to present your defence evidence and
19 that we will have a Pre-Defence Conference. I wish to
20 remind you of that. But I would like to see your
21 reactions in relation to this idea.
22 MR. K. SIMIC: [Interpretation] Your Honours,
23 I speak in my own name alone.
24 When we discussed depositions of witnesses,
25 as you know, it was a different Trial Chamber and a
1 different situation, and the Defence was guided in
2 bringing its decision that the depositions had two
3 facts to contend with: first of all, time, because the
4 trial was not even envisaged and we wanted to do what
5 we could before the start of trial to shorten the time
6 of the trial itself; and secondly, in the Republika
7 Srpska, the Defence really does have a problem with the
8 witnesses who would be ready to come and testify before
9 this Tribunal.
10 So that quite simply we had to compromise,
11 and, therefore, the Defence of Mr. Kvocka gave you a
12 larger number of names for witnesses, deposition
13 witnesses. But we shall do our utmost that by the time
14 of trial, the Defence case, we shall try to revise the
15 list and to bring as many witnesses to the courtroom as
16 possible. What we won't be able to do in court we
17 shall have to do on the basis of the other method. But
18 I do think it is a good idea to have this take place
19 after the Prosecution case and before the Defence case,
20 if there are any new witnesses to contend with. Thank
22 JUDGE RODRIGUES: [Interpretation] Yes. Very
23 well, Mr. Simic.
24 Mr. Nikolic, do you have any response?
25 MR. NIKOLIC: [Interpretation] Your Honours, I
1 have no special reaction. All I can say is that this
2 Defence team is very much interested in having
3 testimony by deposition, but it is not in the same
4 position as the Prosecution or Mr. Kvocka's Defence
5 team to reduce the number of witnesses for
6 depositions. The number remains constant because we
7 are dealing with certain individuals who are vital for
8 the defence of our accused, and so this Defence team
9 would like to stay with that number.
10 Of course, as regards time, we fully agree
11 with the proposal Your Honour has just given.
12 JUDGE RODRIGUES: [Interpretation] Thank you
13 very much, Mr. Nikolic.
14 Mr. Fila.
15 MR. FILA: [Interpretation] I completely
16 concur with what you have said and with what my
17 colleagues have said before me. I accept a parallel
18 system as well. Because there are enough of us, one
19 person could be in Banja Luka while another one is here
20 in the courtroom, and that evidence could be presented
21 and depositions presented in parallel form which would
22 speed up the whole procedure. Thank you, Your Honour.
23 JUDGE RODRIGUES: [Interpretation] Thank you,
24 Mr. Fila.
25 Mr. Tosic.
1 MR. TOSIC: [Interpretation] Your Honours, we
2 agree with respect to your position regarding the
3 depositions in the period after the Prosecution case
4 and before the Defence case gets going. But I cannot
5 accept and do not agree with the position of my
6 colleague Mr. Fila with respect to the fact that the
7 depositions be taken specifically in Banja Luka, for
8 example, and to follow the proceedings in this
9 courtroom at the same time, this parallelism. So much
10 from me. Thank you.
11 JUDGE RODRIGUES: [Interpretation] Very well.
12 Thank you very much.
13 Mr. Jovan Simic.
14 MR. J. SIMIC: [Interpretation] Your Honours,
15 we agree with your proposal and your observations.
16 As to the number of witnesses, at this point
17 in time we are still not able to give you an exact
18 number. We have handed in the statements that we have
19 collected. We entered into these proceedings a little
20 late, but we do hope that in the course of the coming
21 month we will come up with a definite list of witnesses
22 who will be heard by deposition, and those to be heard
23 in this courtroom. Thank you.
24 JUDGE RODRIGUES: [Interpretation] Very well.
25 Thank you, Mr. Jovan Simic.
1 Ms. Hollis, have you any additional
2 observations to make?
3 I'm sorry. Before that, I think Mr. Nikolic
4 has something to add.
5 MR. NIKOLIC: [Interpretation] I do apologise
6 for taking the floor and reacting a little late. But
7 in view of the fact, Your Honour, that you have heard
8 the positions of the individual Defence teams, when you
9 bring in your ruling, I should like to ask you to bear
10 in mind what the majority has proposed, because for my
11 part, I can say that I do not agree that we work in
12 parallel form, as proposed by Mr. Fila, that is.
13 JUDGE RODRIGUES: [Interpretation] Yes, we
14 will bear all that in mind. Thank you, in any event,
15 for drawing our attention to this.
16 Ms. Hollis now. I'm sorry.
17 MS. HOLLIS: Thank you, Your Honour.
18 Your Honour, the Prosecution's position
19 remains the same in regard to Defence witnesses. Those
20 we have agreed to take by deposition we still agree to
21 take by deposition. New witnesses that are proposed by
22 deposition we will evaluate, just as we evaluated those
24 We would, for the record, Your Honours,
25 reiterate our position that for Defence witnesses who
1 are unwilling to come to the Tribunal, that either
2 videolink testimony from an area they are willing to
3 appear would be acceptable or the Prosecution does
4 agree that, if needed, depositions taken in the areas
5 where they are willing to appear would also be in the
6 interests of justice. We have stated in the past that
7 we believe it's possible to depose witnesses in Banja
8 Luka, if that's what's necessary, and to the extent the
9 Defence believes they need that for their witnesses,
10 then we would support their request in that regard.
11 We would find it difficult to have a parallel
12 structure such as was proposed, but that is more for
13 Your Honours to evaluate than for the Prosecution.
14 JUDGE RODRIGUES: [Interpretation] I should
15 also like to consult the parties regarding a possible
16 modification of the management of time that we have
17 done so far.
18 As you know, we have adopted this system of
19 working during the day with two half-hour breaks. We
20 did this also in the interests of the accused because
21 we know that if we have a pause shorter than half an
22 hour the accused cannot leave the courtroom. But they
23 also need to have a rest to be able to follow the
24 debates fully.
25 In the meantime, we talked amongst ourselves
1 about this and we received many suggestions and a lot
2 of feedback, if I can call it that, and we were about
3 to modify slightly the organisation of time so as to
4 have a half-hour break the first break, and then the
5 second break of one hour; that is, we could begin at
6 9.20 in the morning and finish around, and I say
7 "around," 3.00. It could be a quarter to three.
8 The point is that, as you know, there are
9 certain habits with regard to meals and there are many
10 people who like to have a longer break for lunch.
11 So to meet these requests, one -- we do have
12 a half-hour break first and then an hour-long break
13 after that. I would like to hear your reactions.
14 As I have said, the Chamber will take its
15 decisions, but with an explanation, and we would like
16 to consult the parties. And I would also like to say
17 that this Chamber has a very busy schedule because, as
18 you know, it is working on two cases simultaneously and
19 it is working every day every week. And if it appears
20 to the public that this Chamber works only from 9.30
21 until 2.30 and the other Chamber from 9.30 until 4.00
22 or 4.30, it may appear that the other Chamber is
23 working harder than this one.
24 I'm not interested in any comparisons. I'm
25 just saying that we have the same hours of hearings but
1 in the mornings we have the hearings, as you know, to
2 make sure that the witnesses who are present are heard
3 and we have, in the afternoons, our status meetings our
4 meetings and our discussions. It's a different manner
5 of organising the time and managing the time.
6 So I can understand that very often it is
7 very hard to spend all this time in the courtroom
8 without having a rest because I'm telling you now, you
9 have breaks, but we have none because when we're not
10 working on Kvocka, we have another case, and we see
11 other teams of the Prosecution and the Defence, but the
12 Judges are the same.
13 So perhaps we should review a little the
14 organisation of time so as to really give a chance to
15 everyone do have a slightly longer break, to have a
16 normal meal, because we are human beings, as you know,
17 we're not machines.
18 Regarding this matter of modifying our
19 working hours by beginning at 9.20 and ending more or
20 less at 3.00 or quarter to three with a half-hour break
21 first, and second hour-long break, what is your
22 opinion, Ms. Hollis? Would that suit you or not?
23 MS. HOLLIS: Yes, Your Honour, the
24 Prosecution likes to have one meal a day, whether we
25 need it or not, so that would suit us and, of course,
1 we appreciate being able to be in court as long as
2 possible so we would think that would be very fine,
3 Your Honour.
4 JUDGE RODRIGUES: [Interpretation] We see that
5 the Prosecutors are also human beings. Let's see what
6 the Defence has to say.
7 MR. K. SIMIC: [Interpretation] We'll see at
8 the end of the case whether they are human beings but
9 in any event, the Defence agrees with this proposal.
10 JUDGE RODRIGUES: [Interpretation] And do you
11 need to eat only at the end of the trial or already
13 MR. K. SIMIC: [Interpretation] No, I had
14 something else in mind, and I'm sure you know what I
16 JUDGE RODRIGUES: [Interpretation] Thank you
17 very much. So now another question. That is the
18 outstanding agenda item. I don't know whether
19 Ms. Hollis has any other matters to address at this
20 Status Conference.
21 MS. HOLLIS: Actually, Your Honour, we do.
22 We have one issue we would like to put on the record,
23 and that has to do Your Honour with confronting
24 witnesses with potential impeachment or contradiction
1 We noted yesterday in the questions by
2 Defence counsel for accused, Kvocka, that Defence
3 counsel, it appeared, was about to confront the witness
4 with a statement and potentially with contradictions or
5 inconsistencies in the statement.
6 Because of this whole issue about the use of
7 statements, that was deferred, but the Prosecution
8 would like to put on the record that it is the
9 Prosecution's view that both parties are bound to put
10 to each witness matters of impeachment they wish to
11 raise and areas of contradiction that they wish to
13 We believe that the Rule contemplates that
14 and I believe that that is, Your Honours, Rule 89(H).
15 We also believe that the unique circumstances of this
16 Tribunal requires that because if it doesn't happen,
17 then the party who initially called the witness is
18 faced with bringing them back from all over the world
19 to address these issues.
20 So we simply wanted to put on the record that
21 we believe each party has an obligation to confront
22 these witnesses with issues of impeachment and issues
23 of contradiction while the witness is here. Thank you,
24 Your Honour.
25 JUDGE WALD: Let me just clarify one thing.
1 I certainly understand that in prior inconsistent
2 statements and that confused me yesterday too. But are
3 you suggesting that suppose a witness, your witness, is
4 on direct and cross-examined, et cetera, sits down, and
5 then when the Defence puts on its case two months from
6 now, it brings forth a witness who contradicts in that
7 witness' testimony what your prior witness.
8 Are you suggesting that they had some
9 obligation to give advance notice somehow to the first
10 witness that that might happen?
11 MS. HOLLIS: Your Honour, what we're -- what
12 we are submitting is that whichever party it is --
13 JUDGE WALD: Yes.
14 MS. HOLLIS: -- has an obligation to put to
15 the witness, "Isn't it true that, in fact, you told so
16 and so something different," or "Isn't it true this and
17 that," so that the witness, if it is that the witness
18 said something different to someone else, that the
19 witness has the opportunity to respond to that in this
20 appearance rather than having to be called back.
21 So that's the nature of the type of evidence
22 we're talking about, Your Honour.
23 JUDGE WALD: Okay. I just wanted to
24 understand that.
25 JUDGE RIAD: Do you think we can really put
1 hard and fast rules in this area?
2 MS. HOLLIS: Your Honour, we don't think you
3 can put hard and fast rules but we believe that you can
4 put a general rule. And in fact I misspoke, I believe
5 it's not Rule 89(H) it's rule 90(H), 90(H).
6 And the Prosecution submits that that is what
7 this Rule is aimed at, and that is, to the greatest
8 extent possible, put to the witness while they're
9 here. If there are items of contradiction that the
10 witness may later be recalled to explain, because
11 otherwise these cases will go on.
12 It's a matter of timeliness of the
13 proceedings. It's a matter of not bringing witnesses
14 back at great expense. It's not a matter of bringing
15 witnesses back to retraumatise them by having to
16 reappear before the Tribunal.
17 But in terms of an absolute rule that is
18 always the same, we understand that it could vary from
19 case to case, but we believe as a general proposition,
20 yes, it should be a general proposition and is what is
21 intended by Rule 90(H).
22 JUDGE RIAD: Thank you.
23 JUDGE RODRIGUES: [Interpretation] Thank you,
24 Ms. Hollis. Has the Defence any comments to make
25 regarding this point that has just been raised by
1 Ms. Hollis?
2 MR. K. SIMIC: [Interpretation] Your Honours,
3 perhaps precisely this question links -- is linked up
4 with what I spoke about with respect to the
5 proceedings, and then we could touch on that question
6 and -- with what I wanted to see, the obligation of the
7 Prosecution to present us with that, and I speak only
8 in my own name.
9 JUDGE RODRIGUES: [Interpretation] Perhaps you
10 wish us to deal with this question first and then later
11 on, Mr. Simic, you will have your question. Very
13 Mr. O'Sullivan.
14 MR. O'SULLIVAN: The only comment I have is
15 this, Your Honours, under Rule 90(H), you will see
16 90(H)(i) or 90(H)(ii). (H)(i) refers to
17 cross-examination and matters of credibility
18 specifically uses the word "credibility" and two refers
19 to contradictions of the evidence. And if I understand
20 what the point Ms. Hollis is making, indeed, it goes to
21 the effectiveness of a cross-examination.
22 If, during the cross-examination, a party is
23 trying to bring out inconsistencies which go to
24 credibility or contradictions which go to credibility
25 and weight, clearly that is one of the reasons or
1 purposes of cross-examination. So it really is a
2 matter for counsel to effectively cross-examine in
3 those regards.
4 And that, to me, is the matter as I believe
5 Judge Riad is suggesting, there's no hard and fast
6 rule, but it's a matter for Your Honours to see what
7 arises out of the testimony in its entirety including
8 the cross-examination. That's all I have to say on
9 that point.
10 JUDGE RODRIGUES: [Interpretation] Thank you
11 very much, Mr. O'Sullivan.
12 Are there any other comments regarding this
13 matter? No? Very well.
14 I take advantage of this opportunity,
15 nevertheless, to say that the Chamber, I don't know how
16 I should call this, but the discussions that we have
17 had in the course of several Status Conferences, and we
18 were -- we intended to supply you some kind of
19 practical instructions by the Chamber which are the
20 Chamber's interpretation of the Rules after the
21 discussions that we have had, and I don't know whether
22 that could be useful, but in any event, we're working
23 on this working document, and I think it could be
24 useful especially with regard to this point raised.
25 There are many matters that we have agreed
1 on, many that we have discussed, and the Chamber wishes
2 to share with you some guidance as regards the practice
3 of the Chamber, but we will see whether that will be
4 useful for you or not. We have almost finished the
5 document. We would like to supply you with it, and
6 then we will see whether it can be a tool, a useful
7 instrument for all of us.
8 So now, Mr. Krstan Simic, the question you
9 want to address.
10 MR. K. SIMIC: [Interpretation] Your Honours,
11 this question, in a way, was opened by Mr. Nikolic but
12 he didn't elaborate because it was neither the time or
13 the place, and I would like to raise this problem and
14 I'm sure that by solving the problem, effectively, we
15 can speed up the trial process and avoid many
16 misunderstandings which we have had so far, and I'll
17 try to show this and demonstrate this by way of an
19 We have the indictment to start off with, and
20 all the Defence teams had objections to the form of the
21 indictment. At that time, the Trial Chamber accepted
22 the objections made by the Defence counsels and
23 considered that the indictment was not precise enough
24 and specific enough linked to the events, the time of
25 the occurrences.
1 The Victims and Witnesses Unit on the 12th of
2 April, 1999, issued and order to the Prosecution to
3 determine more specifically to amend the indictment in
4 that sense. And the Prosecution on the 31st of May of
5 that same year sent a document, an addendum to the
6 indictment in which it gives more specifics and located
7 the casualties and the perpetrators for whom it
8 considered that they could prove this kind of treatment
9 took place.
10 We did not consider at the time that this was
11 sufficient, but we accepted it in waiting for the trial
12 to begin, and we thought that later on in practice, the
13 rules and regulations would help us to resolve the
14 situation. And in that sense, I should like to
15 indicate Rule 65 ter (E)(iv), which provides for the
16 fact that the Prosecution, in its submission, in
17 keeping with Rule 73 bis is duty-bound to send a list
18 of witnesses and under C, it states the points in the
19 indictment as to which each witness will testify,
20 including specific references to counts and relevant
21 paragraphs in the indictment. The Prosecution did,
22 indeed, send us a submission of that kind, we received
23 it, but I seem to feel that in practice, that
24 submission is not being applied and, quite simply, we
25 are deviating from it and using up a lot of time and
2 In order to show this in practical terms, I
3 shall quote the example for one particular witness
4 whose testimony we have heard. It was Witness AJ. As
5 it was a protected witness, those were his initials.
6 Through this witness, the Prosecution wanted to prove
7 Counts 1 to 3 of the indictment connected to C and D of
8 the accused. This witness was not put forward at all
9 as a witness to bear out any of these facts, any facts
10 which relate to Mr. Kvocka, that is, in the indictment;
11 however, the practice was quite different. We
12 discussed this at greater length, whereas for all
13 practical purposes we could have prepared ourselves for
14 this witness.
15 Very frequently witnesses don't seem to
16 remember and they say that time has played its hand,
17 and this is something of concern to the Defence
18 counsel, that the witnesses, after two or three days of
19 discussion with the Prosecution teams -- you know that
20 two or three days is a long time because you know what
21 can be said in two or three hours -- and then they
22 said, "Well, we didn't remember that; we weren't asked
23 that," and this can lead to misunderstandings. Because
24 some of the witnesses spoke about events that were not
25 the subject of their statements, and this led us to a
1 position where we had Mirsad Alisic, a witness who is
2 not a protected witness so I can state his name, he
3 testified, we had his statement, and after his
4 testimony, we found ourselves faced with the following
5 situation: Neither in the testimony, nor during the
6 examination-in-chief or the statement or during the
7 cross-examination, did he make mention of a fact which
8 he mentioned in response to a question asked by Judge
9 Wald. So that is something which causes concern to us,
10 and there are many examples of that kind.
11 Let me mention another witness. Edin Mrkalj,
12 we heard his testimony here recently. Mr. Mrkalj, his
13 statement, for example, was taken after the
14 confirmation of the indictment against Mr. Kvocka. It
15 was taken by the same Prosecution team representing the
16 indictment, and new points cropped up. We reacted and
17 Ms. Hollis said -- in fact, things were mentioned that
18 did not exist in the minutes.
19 Therefore, I would like to propose and
20 suggest, if I have the competency to do so -- and I
21 think that in practice this could be realised -- that
22 the Prosecution should stick to its submission in
23 calling out the witnesses. And this would facilitate
24 all of us in this trial, especially you the Judges,
25 that the witnesses are being called to talk about such
1 and such a paragraph of the indictment, and that in our
2 cross-examination we should adhere to what is provided
3 for by Rule 65, I think it is, 65 ter, because that is
4 the duty of the Prosecution as well. I think we should
5 gain efficiency, and we would avoid any nervousness,
6 any surprises, we would not tax the witness too much,
7 and I think this would be to the advantage of a fair
8 trial. Thank you.
9 JUDGE RODRIGUES: [Interpretation] Thank you
10 very much, Mr. Krstan Simic.
11 Madam Hollis, I think you have many things to
12 respond to now.
13 MS. HOLLIS: Thank you, Your Honour.
14 Your Honour, in regards to Rule 65 ter, we
15 suggest that is a Rule for the Pre-Trial Judge in
16 managing the case for trial, and that what is provided
17 for the Pre-Trial Judge should not limit what is
18 produced at trial.
19 We suggest that the real core of this issue
20 is really adequate notice to the Defence, and if the
21 Defence feels it has not received adequate notice, then
22 we suggest that the proper remedy is to raise that
23 point with Your Honours to determine what additional
24 time may be necessary to cross-examine the witness on
25 this point, or what other remedies may be appropriate.
1 We don't believe that the appropriate remedy is to
2 limit witnesses to what is put forward in a document
3 that is for the use of the Pre-Trial Judge in
4 determining how much for trial and such matters as
6 We would again point, Your Honour, to the
7 reality of this Tribunal, and that is that when
8 statements are taken from witnesses, in many instances
9 they are not taken for the case that is currently
10 before this Tribunal. Even after one indictment has
11 been confirmed, statements may be taken in regard to a
12 different case. In fact, for Mr. Mrkalj, the statement
13 was taken in regard to the Tadic proceedings. It was
14 not taken in view of these accused because these
15 accused were not in custody, nor did we have any
16 indication they would be in custody at any time in the
17 near future.
18 So the system is very different than it is in
19 many jurisdictions, where a statement is taken from a
20 witness for one specific case and that is the purpose
21 for which it is later used. Statements that are taken
22 by the Office of the Prosecutor very often have to do
23 with crimes that were committed throughout a camp or
24 throughout an opstina or throughout a region, so that
25 they do not focus on particular accused. For that
1 reason, these statements can't be seen -- the contents
2 of the statements can't be seen as everything the
3 witness knows that may become relevant in later cases.
4 So we do have a difference there. We suggest it comes
5 down to notice and how we deal with that.
6 The way the Prosecution is attempting to deal
7 with that when it gets notice early enough is to
8 provide the Defence counsel with proffers that would
9 include new relevant information. There are instances
10 where the information is obtained just prior to the
11 witness testifying so that even a proffer would not
12 solve the notice requirement.
13 We believe, again, the issue is notice and
14 how we deal with lack of notice when that is raised by
15 the Defence, and we do not believe that 65 ter should
16 limit the evidence that comes forward in trial. Again,
17 we believe that the underlying issue for admissibility
18 of evidence is is it relevant and is it probative.
19 Another consideration is has the Defence been given
20 sufficient notice of the evidence.
21 But we think restricting either side to what
22 may come forward in 65 ter, as a general rule, would
23 not advance the interests of justice and would result
24 in this Chamber being denied the use of relevant and
25 probative evidence. So, again, we believe the real
1 issue is how do we deal with lack of notice or untimely
2 notice, and that is how we would respond to Defence
3 counsel's submission.
4 JUDGE RIAD: Have you got an idea of what
5 adequate notice would be, then?
6 MS. HOLLIS: Your Honour, we think it would
7 depend upon, really, the type of information they
8 receive. If it is information that is consistent with
9 other evidence in the case, that is consistent with the
10 approach that the Prosecution is taking, then perhaps
11 less notice would be required. If it is something that
12 is totally new, is inconsistent with all the other
13 evidence in the case, then there would be a real
14 element of surprise and additional time would be
15 required. But again we believe you'd have to look at
16 this in terms of the specific evidence that we were
17 talking about.
18 JUDGE RIAD: Thank you.
19 JUDGE RODRIGUES: [Interpretation] Ms. Hollis,
20 I'm viewing this question within the context of the
21 totality of the discussions we have had here, all these
22 prior statements, et cetera. Could it not be a good
23 solution to respond to this suggestion made by
24 Mr. Krstan Simic just now? That is, perhaps it would
25 be useful to focus the debate properly, to focus the
1 examination-in-chief and the cross-examination, to say
2 before the examination-in-chief begins -- and I don't
3 think that would cost you much because you have
4 investigated so much work anyway -- "Here we have this
5 witness who is going to testify about such and such
6 events or counts in the indictment," with a specific
7 reference to the appropriate paragraph in the
8 indictment. I'm reading from the Rules.
9 I think this could assist the Defence a great
10 deal, and when you have statements of witnesses, and I
11 understand they were taken so as to be used for this
12 case or another case, there are many things perhaps
13 which are not really focused on this particular case.
14 I think that the suggestion of Mr. Krstan Simic could
15 perhaps be of assistance.
16 Are you capable of responding to that
17 suggestion, Ms. Hollis?
18 MS. HOLLIS: Yes, Your Honour. Perhaps I
19 misunderstood the suggestion of Mr. Simic. My
20 understanding was his suggestion was we had to stay
21 with whatever was set forward in 65 ter. That, I
22 disagree with.
23 Your Honour's suggestion that before a
24 witness testifies we indicate what the witness will
25 testify about is something that I believe we could do
1 with more exactitude, but this would be prior to the
2 witness' testimony. I would distinguish that from us
3 being bound by what was set forward in the 65 ter
5 JUDGE RODRIGUES: [Interpretation] Yes,
6 because Rule 64 ter is for the pre-trial stage, and we
7 are not in that stage now. But I think you have done
8 this work for the pre-trial, so I think it could be
9 useful, as far as I have been able to see from the
10 Defence, that before beginning the testimony, one could
11 say, "We are calling this witness to talk about this,
12 this, and this." Could you do that, Ms. Hollis?
13 MS. HOLLIS: Your Honour, I believe that we
14 could do that.
15 JUDGE RODRIGUES: [Interpretation] Very well.
16 Mr. Krstan Simic, have you any response?
17 MR. K. SIMIC: [Interpretation] A very brief
18 comment. Clearly Ms. Hollis and I have not understood
19 one another completely. Ms. Hollis has confirmed
20 indirectly everything I have said. When mentioning
21 Mr. Mrkalj, Ms. Hollis said, "We took that statement
22 for the Tadic case." The statement from the Tadic
23 case, which was disclosed to the Defence, a witness is
24 brought in to talk about the Kvocka case. We don't
25 have his statement. We learn here for the first time
1 things from his testimony. Out of respect for the
2 Chamber, we didn't ask for the trial to be suspended,
3 we didn't say that Mrkalj's statement had been
4 disclosed. Ms. Hollis has just admitted that. We need
5 new time of a month or so. Where would that take us?
6 I don't think that's a big problem since the
7 Prosecution has submitted its amendments to the
8 indictment, and it says specifically Witness AJ will be
9 heard regarding Counts such and so, charges such and
10 such. We just wished the Prosecution document to be
11 implemented rather than this list being expanded
12 endlessly. It was the Prosecution who specified what
13 AJ would be testifying about, and they said that they
14 would be proving Counts 1 to 3 in relation to the
15 accused Radic, C and D, and Zigic. So we simply wish
16 what they submitted to the Trial Chamber as their
17 suggestion, as their decision, to be put into
18 practice. No additional submissions, only the
19 implementation of what we had expected the Prosecution
20 to implement.
21 JUDGE RODRIGUES: [Interpretation] Yes,
22 Mr. Nikolic.
23 MR. NIKOLIC: [Interpretation] I hope you will
24 allow me to say a few words, as colleague Simic
25 mentioned my name when he started to elaborate this
2 I just wish to say that the Defence was, in a
3 sense, handicapped in conceiving the strategy of
4 defence, because our defence strategy was based on the
5 submission of the Prosecution, and that is how we
6 viewed witness statements and that is how they prepared
7 for the cross. Because the witness that colleague
8 Simic has just mentioned had nothing to do with our
9 client, according to -- and this, according to the
10 submission of the Prosecution itself. So our strategy
11 was based on the statements of those witnesses that the
12 Prosecution would say would be proving the charges
13 against the accused Kos.
14 When the trial started, things changed. I
15 did react at a certain point, through an objection.
16 However, I was told that the indictment provided the
17 scope. Yes, but at the time I had in mind the ruling
18 of the previous Trial Chamber which asked the
19 Prosecution to be more specific -- make the amendment
20 more specific and which it did. It was more specific,
21 making different chapters, A, B, C, D, regarding
22 victims and accountability.
23 So this is just to add to what my learned
24 friend, Mr. Simic, has just said.
25 JUDGE RODRIGUES: [Interpretation] In any
1 event, I think there are certain new elements -- thank
2 you, Mr. Nikolic -- there are certain new elements in
3 what Mr. Nikolic has said. So are you going to
4 respond, Ms. Hollis?
5 MS. HOLLIS: Your Honour, I believe the basic
6 point that is being raised is the same point, and that
7 has to do with notice. In terms of making the
8 indictment more specific, that was done, that was
9 accepted by the Trial Chamber, so we don't think that
10 that is an open issue. So again we think it comes back
11 to notice, and I would rely on the comments I had made
12 earlier about notice and note again that in terms of
13 what Your Honour is suggesting, the Prosecution
14 understands that to be different than what Defence
15 counsel for accused Kvocka is suggesting. It is your
16 suggestion that we believe that we could comply with,
17 and we do not believe that the 65 ter submission should
18 be restrictively applied.
19 JUDGE RODRIGUES: [Interpretation] Mr. Krstan
20 Simic, have you any further comments or have you
22 MR. K. SIMIC: [Interpretation] I have
23 finished, but this would go on endlessly. Rule 65 ter
24 is part of the trial. It gives a guideline for the
25 trial. It simply says so many conditions need to be
1 fulfilled for the trial to begin and then we come to
2 briefs, and we will abide by what we have said in those
3 briefs, I promise you.
4 JUDGE RODRIGUES: [Interpretation] Very well.
5 Thank you very much.
6 Are there any questions to deal with, to
7 address? I am putting the question to you all. Yes,
8 maybe Mr. Tosic. Thank you, Mr. Tosic.
9 MR. TOSIC: [Interpretation] Your Honours, we
10 have one question that will be expanded by my
11 colleague, Mr. Stojanovic.
12 JUDGE RODRIGUES: [Interpretation] Go ahead,
13 Mr. Stojanovic, please.
14 MR. STOJANOVIC: [Interpretation] Thank you,
15 Your Honour. Let me remind the Trial Chamber that in
16 the past week, we have already informed the Trial
17 Chamber and the Prosecution that we cannot collect all
18 the material in evidence we need for the Defence of
19 Mr. Zigic. We are talking about photographs, the
20 photographs of precise individuals. I cannot tell you
21 which individuals not to have to go into private
23 The Defence considers that there is -- that
24 the identity of these individuals has been changed and
25 with respect to the charges against Mr. Zigic, and some
1 witnesses, Prosecution witnesses, have described Zigic
2 as being precisely those people on the photographs that
3 we are seeking, looking for.
4 And some of the witnesses we have heard also
5 confirm that it was not Zigic, but that according to
6 the descriptions, they were descriptions of other
7 persons whose photographs we are looking for. But in
8 addition to the numerous personal contacts that we have
9 had and the written submissions we have tabled requests
10 to the highest authorities in Republika Srpska, the
11 Ministry of Defence, the municipal organs and so on and
12 so forth, the Ministry of the Interior, et cetera, but
13 all this has not come up with any result.
14 On the other hand, the Prosecution, according
15 to our request, has endeavoured to search its archives
16 and help the Defence but, unfortunately, they don't
17 seem to have been able to come up with anything.
18 The Tribunal, through this Trial Chamber,
19 does have the authority in conformity with Rule
20 29(2)(a) and (c) of the Statute to make it incumbent
21 upon Republika Srpska or Bosnia-Herzegovina to hand
22 over certain documents, and the application of those
23 competencies has been further elaborated in Rule, I
24 think it is, 54 bis.
25 However, quite obviously, it would mean the
1 application of an unwieldy process and institution
2 which would imply the possibility of complaints from
3 us, appeals from us, and the interested state which
4 would mean an instrument which could, for a time,
5 burden and even disturb the regular course of the trial
7 Therefore, the Defence has done its best
8 to -- as this was a last resort, we wanted to avoid
9 that particular instrument and try and come by what it
10 is searching for in a roundabout way, and a shorter
12 And we have had contact, direct contacts with
13 Mr. Jovicic in the past week. He is the liaison
14 officer of the Republic of Bosnia-Herzegovina with this
15 Tribunal, and he has promised to help us; he has
16 promised his assistance in this matter.
17 I think that that assistance would gain more
18 weight if this Trial Chamber were to give us a signal
19 and to lend its support to us for this kind of
20 cooperation, to give the go ahead. I think that's a
21 pre-requisite which would bear fruit, and that we would
22 reach our goal in that way.
23 The other thing that would be of great
24 assistance to us would be if the Prosecution could
25 change the order of the witnesses, certain witnesses,
1 Fadil Abdagic being one of them, and Omer Mecin [phoen]
2 and Asmir Mesic. And if we could hear Witness T again,
3 and we've already discussed that matter on a previous
5 I think that it is a request to arrive at
6 something that -- which can be beneficial to all of
7 us. And provoked by some witness testimonies, I'm not
8 going to mention them now, but shortly we're going to
9 have a situation where one of them will perhaps say, as
10 he had said in his written statement, that Zoran Zigic
11 killed such and such an individual, but after that, we
12 come to a description of Zoran Zigic. That he is a
13 high man, a blond man with a earring in his ear, et
14 cetera. So what we are trying to do is to take a
15 shortcut in arriving at what we consider to be crucial
16 for our Defence case. Thank you.
17 JUDGE RODRIGUES: [Interpretation]
18 Mr. Stojanovic, I think that we have already said that
19 a written request should be made because elements of
20 identification are in question. Is there anything new
21 since then or is the situation the same as it was
23 MR. STOJANOVIC: [Interpretation] No, Your
24 Honour. We merely tried to present the Court with this
25 possibility and not be a binding order to a state which
1 entails repercussions and consequences which will be
2 unwieldy to this trial, but to have another form of
3 assistance there from the Tribunal to have cooperation
4 with the liaison officer, and understanding from the
5 Prosecution with regarding to the order in which
6 certain witnesses will be heard and examined. So we're
7 doing our utmost to avoid anything that would make the
8 trial unwieldy and prolong it.
9 JUDGE RODRIGUES: [Interpretation] Yes, but I
10 don't know exactly what we can do to give content to
11 this support. What would you like me to do? I make a
12 phone call to someone to tell them, "We support the
13 position of Mr. Stojanovic." What, exactly, are you
14 asking for? That is my question.
15 MR. STOJANOVIC: [Interpretation] Well, with
16 the liaison officer, he would like encouragement from
17 the Tribunal for cooperation with the Defence and, of
18 course, with the Prosecution following requests linked
19 to preparations for the trial.
20 JUDGE RODRIGUES: [Interpretation] Yes, but I
21 can't do that. I cannot pick up the telephone and say
22 to the representative in Bosnia-Herzegovina, "We
23 sympathise with the question raised by Mr. Stojanovic,
24 can you give it to him?" That is not how things are
25 done. Either you make a motion in line with Article 29
1 and the Chamber will make a decision, or you don't make
2 a motion and the Chamber will wait.
3 The Chamber does not take -- give support to
4 any party. We, as a Chamber, we do support your
5 position and your quest for the truth and, the Chamber
6 will do everything to establish the truth but, as you
7 know, there are mechanisms for doing so. Either you
8 make a motion or you don't submit a motion. There is
9 no half-way solution. I have to be quite frank with
10 you, Mr. Stojanovic.
11 As I said, I cannot telephone a
12 representative of Bosnia-Herzegovina or Republika
13 Srpska to say, "Look, you have to do such and such a
14 thing." That's something I cannot do.
15 MR. STOJANOVIC: [Interpretation] Yes, thank
16 you, Your Honour. I think we will table a written
17 submission in due course.
18 JUDGE RODRIGUES: [Interpretation] Ms. Hollis,
19 do you have any comments to make regarding this
21 MS. HOLLIS: No, Your Honour.
22 JUDGE RODRIGUES: [Interpretation] I think now
23 it's Mr. Jovan Simic's turn.
24 MR. J. SIMIC: [Interpretation] Thank you,
25 Your Honour.
1 I should like to raise two short questions
2 and add something after that. I'm not quite clear,
3 perhaps I understood it incorrectly, but you said in
4 July we would have at least eight days of trial. Does
5 that mean that there is the possibility of prolonging
6 that period or are we only going to have eight days?
7 This is very vital to our team so that we can reserve
8 our tickets, flight tickets, hotels and so on.
9 And my second question relates to August.
10 You said that the trial goes ahead on the 28th of
11 August but don't know how long it will continue. The
12 same problem exists because of our accommodation
13 arrangements, travel arrangements and so on, thank
15 And the third point that I wish to raise is
16 the question of the transport of my client, Mr. Prcac,
17 which has still not -- a method which has still not
18 been solved. According to my information given from
19 Ms. Hollis, there are two requests.
20 The first was from 1999 requesting that all
21 the accused, individually, that is to say, be
22 transported separately and individually. In keeping
23 with that, a request was made that Mr. Prcac cannot be
24 transported together with them. I'm referring to the
25 situation with the detention unit and the trip to and
1 from the Tribunal, and the situation is as follows:
2 The four accused do go together, they are transported
3 together which the registrar has enabled in a very good
4 way and a speedy way. Their transport has been
5 organised in a speedy fashion, but Mr. Prcac has to
7 And as Mr. Prcac has a high blood pressure
8 problem and health problems generally, he also has a
9 serious headache problem, and he is the oldest of the
10 accused, and I would like to avoid that his health
11 situation becomes even worse and that he is not able to
12 continue the trial.
13 That is one point. Secondly, I asked
14 Ms. Hollis, having spoken to Mr. Rhodes, if possible,
15 that she withdraw her request so that all the accused
16 would come and go to the Tribunal together, be
17 transported together. She told me that if the request
18 of that kind exists, then that she will ask that each
19 of the accused be taken separately but that she would
20 have nothing against all of them going together.
21 I should now like to ask the Trial Chamber,
22 because I am between the secretariat and the
23 Prosecution, I find myself placed in the middle and
24 cannot solve this. Could we see how this matter can be
25 settled so that it can indeed be settled and may not
1 have to take up more time of this Trial Chamber.
2 JUDGE RODRIGUES: [Interpretation] Yes,
3 Mr. Jovan Simic. It is, of course, not up to the
4 Chamber to deal with this question. The only thing
5 that the Chamber can do is mention the matter to the
6 Registry. I think we did that already, but I don't
7 know whether Madam Registrar was here at the time.
8 Do you have any feedback regarding this
9 matter, Madam Registrar?
10 THE REGISTRAR: I already checked with Mr.
11 Rhodes, and he suggest to me that actually we should
12 have to wait for the request from the Prosecutor in
13 this matter.
14 JUDGE RODRIGUES: [Interpretation] The
15 Prosecutor, you said?
16 THE REGISTRAR: Yes, because the Prosecutor,
17 they are lodging the request in March requesting
18 sending all these accused back to the detention centre
19 individually. So if you want to put them together,
20 send them in one vehicle, then you have to send --
21 lodging another request.
22 JUDGE RODRIGUES: [Interpretation] I don't
23 want anything because I cannot want. But in any event,
24 before giving the floor to Ms. Hollis, the fact that I
25 have here regarding eight days in July and the
1 resumption on the 28th of August are the data I have
2 before me.
3 If you need additional information, perhaps
4 you could talk to Mr. Olivier Fourmy, he is here.
5 Perhaps he could give us more details regarding the
7 As for the transportation of the accused, and
8 specifically of Mr. Prcac, can you tell us anything,
9 Ms. Hollis? The registrar tells us that the Registry
10 is wait for a request from the Prosecutor. I thought
11 they were waiting for a request from Mr. Jovan Simic,
12 so I don't understand anything.
13 MS. HOLLIS: Your Honour, I'm not quite sure
14 that they are waiting for, but I can tell you this, the
15 Prosecution in the past has requested through the
16 registrar certain no-contact orders without supervision
17 involving these accused.
18 Those orders have been acted upon and no
19 contact has been ordered, absent supervision. The
20 Prosecution has never asked anyone to transport people
21 individually or in a group.
22 Our request has been for no contact without
23 supervision, and those decisions have been made by the
24 Registry to allow that involving these accused.
25 The Prosecution certainly is in accord with
1 Defence counsel for Mr. Prcac, that Mr. Prcac's health
2 must be taken into account. The Registry has been able
3 to, in its view, comply with the no-contact orders and
4 to transport four of these five accused together.
5 The Prosecution doesn't understand why -- if
6 it believes it can comply with the no-contact orders
7 and transport four together, they can't transport five
8 together. So we have no position on that at all. We
9 simply have said, made a request that there be no
10 contact among these accused without supervision.
11 How the Registry carries that out is up to
12 the Registry and how it transports people is up to the
13 Registry. So the Prosecution is also at a loss as to
14 what we are to request.
15 JUDGE RODRIGUES: [Interpretation] Mr. Jovan
16 Simic. I'm sorry.
17 JUDGE WALD: I just wondered if it's
18 possible, with an impasse, like a bureaucratic impasse
19 like this, even if somebody can just sent them a copy
20 of the transcript of what we've just said here so that
21 we know that you are not directly -- that you are in no
22 way opposing this, maybe we could get over this
23 bureaucratic hurdle.
24 MS. HOLLIS: Indeed, and we've made it known
25 to Registry personnel in the courtroom that we are not
1 opposed to this happening if there is supervision, and
2 we are not opposed to adequate measures being taken
3 regarding Mr. Prcac's health. So we will do that again
4 if it assists the situation.
5 JUDGE RODRIGUES: [Interpretation] Now
6 Mr. Jovan Simic.
7 MR. J. SIMIC: [Interpretation] Your Honours,
8 the only thing we are asking the Registrar to do is a
9 written submission of any kind on the subject, as
10 expounded by Ms. Hollis. We're losing time talking
11 about it. All they need -- Mr. Rhodes said, "I'll
12 organise it. All I need is a written request by the
13 Prosecution or an agreement on the part of the
14 Prosecution." Nothing more than that.
15 JUDGE RODRIGUES: [Interpretation] But the
16 transcript of the hearing should be sufficient.
17 Madam Registrar, could you send this part of
18 the transcript -- because after all, the hearing is
19 public -- to the Registry so that they know there is no
20 opposition on the part of the Prosecution to this?
21 THE REGISTRAR: May I please also refer to
22 Rule 66? Maybe perhaps it helps you. We need a
23 written request from the Prosecutor.
24 JUDGE RODRIGUES: [Interpretation] No, we are
25 not going to continue this debate. You will take note
1 of the position taken, Madam Registrar, so that things
2 be resolved, and the Chamber is going to check. This,
3 I can do. But regarding Mr. Stojanovic's question, I
4 can do nothing.
5 So I think there are no further matters to
6 deal with, at least for a few days we will not be
7 having other matters. We have dealt with all the
8 outstanding issues, so we will meet here again to
9 resume our case.
10 The hearing is adjourned, a hearing that was
11 extremely productive, and we will see its effect in
12 practice in the future. Thank you.
13 --- Whereupon the Status Conference
14 adjourned at 4.57 p.m.