Tribunal Criminal Tribunal for the Former Yugoslavia

Page 4335

1 Tuesday, 29 August 2000

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 3.36 p.m.

5 [The accused entered court]

6 JUDGE RODRIGUES: [Interpretation] You may be seated.

7 Very well. Good afternoon. We are all here, the same people as

8 the morning, this afternoon at the Status Conference. We are going to

9 deal at least with the following items, if the agenda and the time allow

10 us, but I should like really not to work beyond 5.30. Perhaps we shall

11 not be able to cover all the matters by that time, and therefore perhaps

12 we shall have to continue tomorrow, perhaps some other day. However,

13 tomorrow we already have some other business at 4.00 so that we shall have

14 to do it at a later stage.

15 First, we shall consider the Prosecutor's motion regarding the

16 modification of the list of witnesses of the Prosecution. This is the

17 motion of the 21st of August. Secondly, the Prosecution's motion for

18 protective measures of the 21st and 28th of August. Thirdly, the motion

19 of Zigic's Defence of the 20th of August, 2000 regarding the admission of

20 Exhibit D21/1. Fifth, the consolidation of the indictment, and we shall

21 see at least to do it today. Perhaps this is not yet finished. Then the

22 sixth point is the request, that is, complementing the expert testimony.

23 Then the affidavits, the matter of affidavits which the Prosecution

24 mentioned today, and it has documents to submit. Then we have the

25 calendar, the documents and the matter of language which the Defence also

Page 4336

1 wanted to raise.

2 So perhaps we should begin from the beginning, and it is

3 practically even logical to begin with the admission of exhibits. We've

4 already made some progress in the discussions. So the first point is the

5 Prosecution's motion regarding the modification of the list of witnesses

6 of the 21st of August. The Prosecutor wishes to modify the witness list

7 of the 28th of April, under Article 73 bis (D). The new list features 11

8 new witness names. Eighteen witnesses who are on the list of the 28th of

9 April, they are being suppressed. The Prosecutor wishes to present

10 affidavits for these 18 witnesses who have been stricken off the list and

11 not to call these witnesses unless their affidavits are challenged. The

12 Chamber received the answer of Mr. Kos' Defence, and they say that this

13 motion had arrived too late and it lacks grounds.

14 However, I should like to hear from the Prosecutor, from the

15 Defence as well. But from the Prosecution in the first place, I shall

16 like some precision. This modification comes following suit of the

17 judicial notice, taking note of certain facts and saying that it was not

18 allowed to submit a new list of witnesses, bearing in mind adjudicated

19 facts. We understood that the list would be cut down. A small question,

20 therefore, to the Prosecution: Do you believe that the affidavits will be

21 challenged and that one will have to call 18 witnesses in addition to

22 those 11 witnesses, or if they are not challenged, then there will be no

23 changes?

24 Another question, to the Defence this time, is as follows: Do the

25 Defence counsel of other accused have any objections to the Prosecutor's

Page 4337

1 motion? As I have said, we have received only the objections from the

2 counsel of Mr. Kos. Therefore, I should like to hear whether this is a

3 general objection, and I should like to see how the communication works,

4 really. Was that the objection on behalf of all the counsel of the

5 Defence? Is that how we should understand it? Yes? Very well. Yes, I

6 understand. You may answer, of course, for the record.

7 MR. O'SULLIVAN: For the record, Your Honour, we have discussed

8 this response and our position with my colleagues, and the position is

9 this: I will speak in support of the reply, and if my colleagues have

10 anything to add -- there will be no repetition to what I have said. They

11 may, however, wish briefly to address issues that we did not touch upon,

12 but there will be no repetition if they speak.

13 JUDGE RODRIGUES: [Interpretation] Very well, thank you for this

14 clarification, Mr. O'Sullivan.

15 Very well. Now I shall give the floor to Mr. Keegan who will now

16 explain to us, very briefly because we do have the written document, but

17 nevertheless, we should like to ask you to make these clarifications. You

18 have the floor, Mr. Keegan.

19 MR. KEEGAN: Thank you, Your Honour. Given the lengthy agenda we

20 have, of course, I would not like to repeat what was stated in our

21 motion. I would say that as a general matter, the request to revise

22 flows, as we indicate, from the developments of the case as it has gone,

23 in particular with respect to the acceptance of the adjudicated facts, and

24 also some additional evidence which has developed, for example, the

25 forensic evidence, that is, based on the forensic reports, the

Page 4338

1 identification of remains from graves in Kevljani, for example, which

2 relate to victims from Omarska.

3 And my focus -- my attention, rather, to the Defence general

4 objection or the response filed and perhaps answer some of the questions

5 in that manner. And as we see it, the Defence objection really falls into

6 two categories: One, they indicate that this request is in violation of

7 the Rules of Procedure and Evidence; and that second, as a matter of

8 principle, it prejudices the accused in a fashion that would render it a

9 violation of Article 21, or Articles 20 and 21.

10 In the first instance, the -- our proposal, the motion, does not

11 violate either Rules 65 ter or 73 bis. On the contrary, both of those

12 rules envision, in fact, this very request. 65 ter, Rule 65 ter, of

13 course, must be read in conjunction with Rule 66(A)(ii), which is the

14 disclosure rule; and Rule 66(A)(ii) says specifically that statements of

15 additional Prosecution witnesses shall be made available when the decision

16 is made to call those witnesses. That decision, as it flows from the

17 plain meaning and the language of that rule, would flow after the original

18 disclosure and after the original time limit for objections to the

19 indictment, et cetera, have run.

20 Secondly, Rule 73 bis (D) specifically contemplates such a motion

21 wherein it states that the Prosecutor may, if she believes it to be in the

22 interests of justice, revise the witness list after the commencement of

23 the trial. So this request is, in the first instance, entirely in accord

24 with the rules and procedure and evidence at this Tribunal.

25 As to the second issue, the Defence raises a number of issues.

Page 4339

1 They cite, for example, the issue of equality of arms, and they focus in

2 particular on the right from Article 21 of the Defence, the right of the

3 accused to adequate time for case preparation and Defence. Yes, case

4 preparation and equal treatment of the accused.

5 It is the Prosecution's position that the citations to Article 20

6 are, in fact, the correct citations. Article 20 indicates that the Trial

7 Chamber shall ensure that the trial is conducted in a fair and expeditious

8 fashion and in accordance with the Rules of Procedure and Evidence, with

9 due regard for the protection -- full respect of the rights of the accused

10 and due regard for the protection of victims and witnesses.

11 Plainly speaking, Article 20 indicates that both sides have the

12 right to a fair and expeditious trial that is conducted in accordance with

13 the Rules of Procedure and Evidence. Well, this request is entirely in

14 accordance with the Rules of Procedure and Evidence, and is entirely in

15 accordance with the way proceedings may develop as envisioned in the

16 rules.

17 The Defence cites, too, the Tadic Appeals Chamber decision and

18 cites with respect to the issue of the equality of arms. They cite to

19 paragraph 47 and 48 -- excuse me, paragraphs 48 and 49 -- I'm sorry, 48

20 and 47. They did not, of course, go to paragraph 49 and to paragraph 52

21 which we would submit are also applicable here. No one, of course, argues

22 with the position that the Defence here, the accused in any case, must not

23 be placed in a position which is of substantial disadvantage to the

24 Prosecution, but as recognised by the Appeals Chamber, that is, of course,

25 with respect to matters and issues which are under the supervision and

Page 4340

1 within the control of a Trial Chamber. The decision also indicates, of

2 course, that this issue of equality of arms and this issue of fairness

3 with respect to position relates to both parties.

4 Finally, in paragraph 52, the Appeals Chamber recognised that the

5 principle of equality of arms as applied to the International Tribunal

6 must be given a rather more liberal interpretation than that when being

7 applied to States, in particular because of the different position of the

8 Trial Chambers with respect to their powers and authorities vis-à-vis

9 States and their ability to influence witnesses' evidence, the production

10 of evidence, et cetera. Whereas we are entirely dependent on cooperation,

11 national courts obviously are not.

12 We raise these issues because we believe that this Trial Chamber

13 is fully aware of the difficulties that both parties face with respect to

14 dealing with witnesses and the production of witnesses for trials, the

15 logistical issues, the current affairs issues, if you will, with respect

16 to relocation, the situation within the territories in the former

17 Yugoslavia, et cetera, all of which impact on witnesses' availability or

18 even willingness to testify. And those factors fluctuate and change

19 depending on the circumstances of the individual witnesses, sometimes the

20 development of a particular case, and sometimes just through the

21 persistence of the parties and their ability to themselves influence

22 events and perhaps persuade witnesses to actually appear.

23 The Prosecution submits that the general issue of Article 20 is,

24 of course, always applicable, and that is the issue of a fair trial for

25 both parties. With respect, we think the issue of equality of arms in a

Page 4341

1 technical sense is in opposite here. There has been no denial of

2 procedural rights to either party, and there has been no denial of any

3 substantive rights. The question here then really falls to the underlying

4 question which is present with any request from either party for deviation

5 in process in the trial proceedings, and that is, is there substantial

6 prejudice to one party or the other which cannot be cured in some

7 fashion. And we believe that is the only question that's of relevance

8 here because that is really the last basis which the Defence raises, and

9 that is the question of prejudice to the accused, and they focus on the

10 issue of adequate time to prepare a defence. And while they raise the

11 issue, they then fail entirely to point to any prejudice that would

12 arise. And we submit the reason why there is a complete dearth of

13 information on that point is because they can't claim any real prejudice

14 because there are too many obvious remedies which would be applicable

15 here, short of denying the Prosecution its right to present the best

16 evidence which it can with respect to the indictment.

17 There is no indication that they would even need any delay in the

18 proceedings to prepare for these witnesses in the first instance.

19 Secondly, if there was a need to prepare for the testimony of these

20 witnesses, there's no indication of how long they would need. And third,

21 even if they do need some time, there's no indication that that would

22 necessarily be -- that time would have a prejudicial effect either on the

23 accused or on the Prosecution, or indeed the Trial Chamber, with respect

24 to the progress of this trial.

25 Therefore, we believe that the motion should be granted. It's in

Page 4342

1 accord with the Rules of Procedure and Evidence. It is in accord with the

2 interests of justice and the fairness of the proceedings for both

3 parties.

4 That would be all we have at this time, Your Honour.

5 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Keegan.

6 I think that Mr. O'Sullivan is going to answer.

7 MR. O'SULLIVAN: Thank you, Your Honour. I believe Your Honours

8 have received our response dated August 25th, and I would be referring to

9 both my response and the Prosecution motion of the 21st of August.

10 Your Honour, we oppose the calling of eight witnesses. You will

11 note that on page 2 of the response, there are nine names or nine

12 witnesses referred to. Witness AR was identified to us today, and we take

13 no objection. We have no objection to Witness AR being called.

14 Therefore, our objection is limited to the other eight witnesses who, for

15 the record, are Witness AO, Witness AP, Witness AQ, Witness AS, Witness F,

16 (redacted), Nihad Haskic, and (redacted). I will be referring to

17 these witnesses collectively as the new witnesses in my oral submissions,

18 as we have done in our written submissions.

19 We are asking Your Honours to deny the Prosecution request for a

20 variance in regards to these eight witnesses, the new witnesses. We ask

21 that you preclude the Prosecution from calling them.

22 Why these new witnesses? In our submission, allowing these

23 witnesses to testify would amount to a violation of the rights of the

24 accused under the Statute and Rules, including the principles of

25 fundamental fairness, equal treatment, equality of arms, timely

Page 4343

1 disclosure, and adequate time for case preparation. These new witnesses

2 were disclosed to the Defence, their names were disclosed to the Defence

3 for the first time in August 2000. The statements and proffers of the new

4 witnesses are incomplete, according to the Prosecution motion, and the

5 disclosure process began in August 2000.

6 Your Honours, if we put this request by the Prosecution in

7 context, and I propose to do that for you, it is patently unfair and, I

8 submit, the prejudice is manifest. What is the context? Let's look at

9 the history of these proceedings. Let's look at the history of the case

10 management, case preparation and disclosure regarding Prosecution

11 witnesses.

12 In our response at point 1, you have paragraphs A through N, you

13 will see, Your Honours, that in June and November, at two times, the

14 Prosecution disclosed 186 witness statements to the Defence. None of the

15 new witnesses are included in that list. From that point on, the case was

16 prepared and organised and managed based on those 186 witnesses.

17 First, I draw your attention to the filing under the old Rule 73

18 bis whereby the Prosecution files summaries. Hundreds of pages were

19 prepared in anticipation of what those witnesses would say. Those

20 summaries were disclosed; I believe a copy was provided to the Chamber.

21 Let's look at February 14th, 2000, two weeks before this trial

22 began. A witness list is compiled with 71 witnesses and 24 alternatives.

23 All those individuals are from the original 186.

24 February 23rd, 2000, less than one week before the trial begins.

25 Under Rule 65 ter, the Prosecution files a submission listing names,

Page 4344

1 pseudonyms of witnesses, areas of testimony, points on the indictment they

2 will testify to, the counts, the paragraphs. In that document, Your

3 Honours will see, the Prosecution took the following position: They said

4 they would either call the 71 listed witnesses or the alternatives.

5 April 28th, 2000, a revised witness list. By this point, the

6 fifth accused is joined to this case. The first Prosecution witness has

7 not yet testified. I remind you the first witness was called on May 4th.

8 This list contains 67 witnesses, 34 alternatives. Each and every one of

9 those individuals is part of the original 186 disclosed witnesses from

10 1999. No new witnesses are in that list.

11 Now, let's contrast that with what we received just in the last

12 several weeks from the Prosecution. I refer to Witness AO. We received

13 that person's name for the first time on August 3rd. There is a proffer

14 dated July 20. We receive an extract of a proffer, not a full proffer, an

15 extract of a proffer, the 21st of August, last week.

16 Witness AP: We've had no disclosure but for, again, an extract of

17 a proffer on the 21st of August, 2000, last week.

18 Witness AQ: We received an OTP statement August 18th. That

19 statement was taken in March 1999. We see it for the first time two weeks

20 ago. We also received an extract, not the full proffer, of this same

21 witness August 21st, last week.

22 Witness AS: No disclosure, nothing.

23 Witness F: We received two statements August 3rd, 2000. One of

24 those statements is dated 1994; the second statement is dated 1992. Never

25 heard of this witness before; never seen those statements before.

Page 4345

1 (redacted): We receive a statement August 11th, this year. The

2 statement is dated 1996. We received another statement, August 11th of

3 this year, dated 1998. As well, an extract of a proffer from last week.

4 Nihad Haskic: A statement disclosed to us on August 3rd, 2000.

5 That statement was taken in 1994. A proffer was disclosed on that same

6 day, August 3rd, 2000; the proffer is dated 1998. We also have an extract

7 of a proffer dated 21 August 2000.

8 Finally, (redacted): No disclosure but for an extract dated

9 21 August 2000 which we received last week.

10 My friend has suggested that under the principle of equality of

11 arms, only matters over which the Trial Chamber has control may you

12 decide. Well, I submit that you clearly have control over this matter.

13 You have an obligation, in my submission, to uphold the rights of the

14 accused to a fair trial, to timely disclosure. We do rely on the Tadic

15 appeal decision for the principle of equality of arms and not placing the

16 accused unfairly at a disadvantage vis-à-vis the Prosecutor. We also rely

17 on that same Tadic decision for the proposition that, under Rule 21(4)(b),

18 the accused is required to the right to have adequate time to prepare.

19 Counsel is in The Hague. We are preparing for the final phase,

20 the final six weeks of the Prosecution case. We just ended a six-week

21 recess. This trial has been going on for six months. This matter has

22 been before this Tribunal, including the pre-trial, for two and a half

23 years. There can be no serious suggestion that now we have to somehow

24 prepare for these eight witnesses at this late stage. That is completely

25 unreasonable. There's been no timely disclosure.

Page 4346

1 Your Honours, I've mentioned Rule 73 bis, the previous version,

2 where summaries were provided. I've mentioned Rule 65 ter and that

3 submission made by the Prosecution. Your Honours, the Prosecution knows

4 its case, and it made a decision when it chose the witnesses it said would

5 prove its case. Many of the statements I've referred to regarding these

6 new witnesses date from 1994 and 1996. This Tribunal opened in 1994.

7 Some of them date from 1992 where they were taken in Zagreb.

8 Let's not forget that this Office of the Prosecution has tried the

9 Tadic case. The Kovacevic case was started and not finished. The

10 Prosecution is about to start the Keraterm case. No one can say seriously

11 that the Prosecution does not know and has not investigated events in

12 Prijedor municipality, in Omarska in particular. They know its witnesses,

13 they know its case, and we say they made a decision.

14 Now, my friend says he relies on Rule 73 bis (D), the current

15 version. In my submission, that provides no basis for what he is

16 attempting to do here at the eleventh hour. In my submission, Rule 73 bis

17 (D) refers to the Pre-Trial Conference. That's the conference that's

18 held, as you know, before the Trial Chamber. But the Pre-Trial

19 Conference, that Rule must be read in conjunction with Rule 65 ter. Rule

20 65 ter is the Rule according to which, during the pre-trial phase, issues

21 are narrowed, points of common ground are found, disputes are identified,

22 and the witnesses are chosen by the Prosecution.

23 Now, my friend has relied on Rule 66(A)(ii) that says that

24 disclosure must be made as and when -- I'm paraphrasing -- as and when the

25 Prosecution discloses. In my respectful submission, it's the reading of

Page 4347

1 Rule 73 bis (D) and 65 ter which are determinative. Your Honours will

2 know that Rule 65 ter was added to our Rules in 1998 in an attempt to

3 expedite and streamline matters pre-trial because matters run slowly here,

4 and Rule 65 ter was designed to accomplish that. We went all through this

5 process over the last two years in this case with this procedure under

6 Rule 65 ter.

7 Now, what does 73 bis (D) say? Well, if you look at Rule 73 bis,

8 it contemplates that at the Pre-Trial Conference, the Trial Chamber is

9 telling the Prosecution, "You have to pare down your witnesses." Those

10 are the witnesses that the Prosecution has chosen at the pre-trial stage

11 under Rule 65 ter. That is why I looked at the history of these

12 proceedings, to show you that we started with 186 witnesses that they said

13 were their best, and they brought that down, with full disclosure, timely

14 disclosure, in 1999. Here we are, six months into a trial, about to begin

15 the final phase, and they're dropping new names on us, disclosing

16 statements for the first time, all of which are years old, and that is

17 prejudicial, that is unfair, and that is not right. That is what Your

18 Honours are there to do in part, and that is to uphold the fair trial

19 provisions, give meaning to the Rules of the pre-trial management which

20 are designed to have smooth-running trials. We don't want adjournments

21 for further investigation. We're here to finish this case based on the

22 way it started when all of these disclosures were made, positions were

23 taken, points were negotiated between the parties and streamlined

24 pre-trial and Pre-Trial Conference.

25 Your Honours, we respectfully request that you deny this motion in

Page 4348

1 regard to these new witnesses. It's contrary to the Rules and Statutes to

2 do otherwise. There is no basis to accede to the request by the

3 Prosecution, and the Prosecution has given no sound or compelling reasons

4 why you should do it. I won't repeat paragraphs 9 and 10 of my response,

5 but we say that there is no basis for doing this and they have not given

6 any sound reasons for requesting it.

7 Those are my submissions.

8 JUDGE RODRIGUES: [Interpretation] Thank you very much,

9 Mr. O'Sullivan. It seems that there are some additional remarks to be

10 made by Mr. Fila.

11 MR. FILA: [Interpretation] Your Honours, my additional remarks

12 concern the part that concerns the accused Radic. I'm sure you know what

13 I have in mind, the sexual violence crimes. We have been given a new list

14 of the witnesses. One of them is supposed to be heard on the day after

15 tomorrow, in two day's time. We are all here, and it is -- it should

16 be -- we should have enough time to prepare for the witness. We didn't

17 know his or her name, and I don't know what is the use of our presence

18 here? What is the reason why we are here? So that one day one can say

19 that the accused had their legal representatives. As for the fact that

20 the Defence did not have the time to adequately prepare themselves, that

21 seems not to be relevant. And I do not wish to be a mere decoration in

22 this courtroom.

23 Let me give a very brief example. In the initial indictment

24 pursuant to which the accused were arrested, the accused Radic had only

25 Witness A to testify against him. She did testify under her real name in

Page 4349

1 the Tadic case. I see that she -- that her name has been skipped for the

2 third time by the Prosecutor.

3 So we have spent two years investigating the case, together with

4 our members of the team, and you will see -- once this witness takes the

5 stand, you will see that we have a number of documents and witnesses that

6 we have had access to in order to investigate that witness. This means

7 that we need some serious work to be done in respect of each and -- each

8 and every one witness. This witness testified under her real name in the

9 Tadic case.

10 So the problem for me is, how am I able to examine Witness AO, who

11 will be heard for the first time in this case, and you will see that she

12 has not been mentioned by any of the witnesses in the present case so

13 far.

14 My colleague, Mr. Stojanovic and I, we have been prevented from

15 doing our work. We simply sit here in this courtroom, and we are kept in

16 the dark as far as the identity of the witnesses is concerned. We will be

17 severely prejudiced if you should accept the motion of the Prosecutor.

18 Nine years have gone by since the relevant events. Two cases were

19 tried here before this Tribunal, hundreds of statements were collected,

20 and let me remind you that the report concerning the camps of Omarska and

21 Keraterm constituted the very foundation for the establishment of this

22 Tribunal, and now we are in year 2000, in the month of August, and they

23 need to call a new witness. This will be unfair.

24 And let me reiterate the request of Mr. O'Sullivan: We are not

25 here to postpone or to ask for a postponement of the trial. We are here

Page 4350

1 to finish with the trial as expeditiously as possible. This is the way I

2 understand my duty here, and therefore we have to respectfully ask you to

3 reject the motion submitted by the Prosecutor.

4 Thank you very much.

5 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Fila.

6 Mr. Stojanovic would like to take the floor, so it seems.

7 Mr. Stojanovic.

8 MR. STOJANOVIC: [Interpretation] Yes, thank you very much, Your

9 Honours. I fully agree with my colleagues, Mr. O'Sullivan and Mr. Fila;

10 however, we have a particular argument to make in respect of (redacted)

11 (redacted).He has been proposed as the new witness, and he is the father of

12 (redacted), who is his son and whose name also figures on the list of

13 witnesses. In paragraph 10 in the motion of the Prosecutor, let me just

14 quote the sentence which is contained therein that,"(redacted) would

15 testify to if he becomes unavailable."

16 So it is requested, it's been requested that the witness testifies

17 on the same -- about the same events that his son has already testified

18 about, and it is made conditional on the availability of the first witness

19 to testify. As far as we can see, the situation is completely different

20 now. (redacted) is supposed to testify first, and we are by no means

21 ready to cross-examine this witness who is likely to take the stand this

22 week or the following week, whereas (redacted) is supposed to testify

23 later on.

24 So as it is stated in the motion of the Prosecutor, this is the

25 witness who would -- who is supposed to testify about the same events and

Page 4351

1 same circumstances as his son who was proposed as a witness initially and

2 whose name is still contained in the witness list. That would be our

3 submission.

4 Thank you very much.

5 JUDGE RODRIGUES: [Interpretation] Thank you very much

6 Mr. Stojanovic.

7 Mr. Jovan Simic, I don't know if we have an issue of protective

8 measures here because names are being mentioned and family relations as

9 well. I don't know if this is likely to constitute a problem. I'm sorry,

10 Mr. Simic, but there may have been some redactions to be made because this

11 is all in public.

12 MR. KEEGAN: Yes, Your Honour, there will need to be redactions

13 made.

14 JUDGE RODRIGUES: [Interpretation] Maybe we should go into private

15 session for this purpose if names are going to be mentioned and repeated.

16 Let us go into private session, please.

17 [Private session]

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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23 --- Whereupon the Status Conference

24 adjourned at 5.23 p.m.

25