1 Thursday, 31 August 2000

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 3.43 p.m.

5 [The accused entered court]

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

7 Good afternoon, everybody, once again. We shall be resuming our

8 Status Conference which was interrupted two days ago. Let me remind you

9 of the agenda, which is essentially the same. That's it. We're just

10 going to continue with the same agenda. But we should perhaps first

11 finish the discussion that we began this morning regarding the admission

12 of Exhibit D 29/1, that is, the document that Mr. Krstan Simic wanted to

13 tender into evidence.

14 After that we are going to deal with several motions filed by

15 Mr. Zigic together. There are two written motions that have been filed

16 and there is also one oral motion which is now on the agenda.

17 The third point of the agenda, the Prosecutor wanted to discuss

18 the issue of affidavits pursuant to Rule 94 ter. I don't know whether

19 this is still relevant, but we will see about that. And I think that the

20 Prosecutor also wanted to discuss some other documents, so we shall be

21 dealing with that as well.

22 And finally, there is a motion filed by the Prosecutor for a

23 consolidated indictment, together with the annexes filed on the 29th of

24 August, which were received yesterday. If the parties are still not ready

25 to discuss this last issue, we can leave it for later on, because I don't

1 think that this is such an urgent question.

2 So this is the agenda. Let us then begin with the first item on

3 the agenda, the admission of Exhibit D29/1. In that way we will continue

4 the discussion that we started on Monday on this issue. I think that we

5 said that the Defence had not received the redacted version of the table,

6 and it seems that despite everything, the Prosecution objects to the

7 admission of such a document, which seems to be a simple working document

8 which contains no evidence whatsoever. However, if it should be admitted,

9 the Prosecutor also wishes for the corrected table or chart to be admitted

10 together with the document.

11 I think we have spent enough time discussing the issue, so we can

12 slowly move on to the conclusions. So I will first give the floor to

13 Mr. Krstan Simic and then to the Prosecutor.

14 Mr. Simic, let us hear you.

15 MR. K. SIMIC: [Interpretation] Your Honours, I have found the

16 document, and it is true that the Prosecutor has redacted the text to a

17 certain extent. And I should like to suggest that the text which the

18 Prosecution said was not in dispute should be admitted as well. However,

19 I must say that we are dealing here with a document which cannot -- which,

20 according to the Prosecutor, cannot constitute a piece of evidence. We

21 believe that it can.

22 As regards the identification of Mr. Kvocka, an official note was

23 composed which is different from what was said by the witness before the

24 Chamber. The witness who testified before the Court said that he was

25 shown the document rather late, but here it says that the witness said

1 that the photograph number 3, with Mr. Kvocka, which is not in dispute, is

2 familiar to him, that he said that he was in Omarska, but that he didn't

3 know his name. What was problematic for us was the fact that the witness

4 said that the first time and then he identified Mr. Kvocka during the

5 testimony.

6 We know that a lot of people are coming from Bosnia and

7 Herzegovina, and let me remind you that there is a programme which is

8 broadcast in Bosnia and Herzegovina every week. The idea is to report on

9 the work of the Tribunal, and we are somewhat afraid that given such

10 circumstances, the identification itself can be made problematic because

11 of the various influences that can affect the witness. And that is the

12 reason why we abide by our former position. This Exhibit can

13 perhaps -- is important because it can help the Judges assess the value of

14 the identification given by the witness.

15 JUDGE RODRIGUES: [Interpretation] Mr. Keegan, how do you respond

16 to that?

17 MR. KEEGAN: Yes, thank you, Your Honour.

18 With respect to the witness who testified, whose testimony is in

19 question, we have no objection at all to the investigator's report being

20 admitted, along with the photo board. That, in fact, is the exhibit which

21 was tendered by the Prosecution. It is the very report that Mr. Simic is

22 referring to, where the investigator notes what the witness' response was

23 when he was shown the photo board. We tendered it. We obviously have no

24 objection to that full report being admitted. Our issue is with the

25 Defence trying to put in a chart that was prepared by the Prosecution as

1 an aid to the Defence so that when dealing with all of the vast numbers of

2 photo boards for the total number of witnesses who were possible, because

3 we disclosed not just the ones who were being called but other witnesses

4 as well, they would at least have a quick guide as to who identified

5 whom. But the terminology used in that chart was simply the expressions

6 used by the person who prepared it. It was never intended to be submitted

7 as evidence; it wasn't considered in that way. It was considered to be an

8 administrative aid to the Defence. Had we known it was going to be

9 potentially offered, we probably would not have bothered to create it and

10 wouldn't have given it to the Defence, since there certainly was no

11 requirement to do so.

12 Our problem is he wants to tender a document which contains a

13 whole raft of information which may or may not give a misleading picture

14 to the Chamber, depending on what use you make of it, which is why I said

15 that if you were minded to take the chart, then we would want to submit

16 every single report so that you would actually be able to see what the

17 witness has actually said as opposed to the terminology that may or may

18 not be used on the chart, because the chart did not lift out the actual

19 wording from the reports but was simply a shorthand, as I indicated the

20 other day.

21 It seems to us, in the Tribunal system, it's been a rule, as it is

22 in most systems, that the best, or at least the best available evidence is

23 what should be admitted. The best available evidence on this point are

24 the reports that the investigator prepared, which we have already

25 submitted and which Mr. Simic has referred to. This chart adds nothing to

1 what you already have. But again, it's similar to asking us to provide

2 other working memos which we may have given to people to assist them,

3 which we never intended to be considered as evidence because they lacked

4 the necessary background and complete information. So that is our

5 objection to this process.

6 With respect to this other issue about media exposure that

7 Mr. Simic is going on about, this chart would add nothing to that issue.

8 If that is a concern, then the Defence should be questioning the witnesses

9 while they are on the stand, "Have you observed any television programmes

10 about this case?" That would be the way to address that situation. This

11 chart would in no way shed any light on either side on that question. So

12 that, to us, is totally irrelevant to the discussion of whether this

13 document should be admissible. Thank you.

14 JUDGE RODRIGUES: [Interpretation] Mr. Simic, do you wish to reply

15 to the response made by Mr. Keegan?

16 MR. K. SIMIC: [Interpretation] Your Honour, a very brief reply.

17 The chart, the new chart, contains a report by the investigator in the

18 section related to Mr. Kvocka. The witness was presented with a series of

19 photographs, that Mr. Kvocka was number 3, and that the witness said, "I

20 know this man, he was in Omarska, but I don't know who he is." So the

21 chart precisely contains this report, and I think that the Prosecution

22 should have brought this document to light so that we could know what type

23 of identification and recognition was made. You could check with the

24 Registry that that table, that chart, has this brief report. That is why

25 we should like to adhere to our proposal. But we are not against the fact

1 that if the Prosecutor wishes to add photo documentation to this document,

2 we have nothing against that.

3 JUDGE RODRIGUES: [Interpretation] I think that the Prosecutor is

4 saying that it should be made complete with the reports concerning the

5 witnesses, which is the reason why this chart was elaborated. You do not

6 object to this particular report being admitted; have I understood you

7 correctly, Mr. Simic?

8 MR. K. SIMIC: [Interpretation] That's right, yes. If the

9 Prosecution feels that this helps, we have nothing against it, because our

10 goal, indeed, is the same, of course.

11 [Trial Chamber confers]

12 JUDGE RODRIGUES: [Interpretation] The Chamber will decide about

13 the issue after other discussions. We will make an oral ruling

14 afterwards.

15 Let us now move on to the second point of the agenda; namely,

16 several motions filed by the Defence counsel of Mr. Zoran Zigic: two

17 written motions and one oral motion. I am specifically referring to the

18 motion of the Defence, the first one of the three, which was filed on the

19 22nd of August, 2000 in order to "reopen an inquiry regarding certain

20 contacts which were made without proper authorisation with Prosecution

21 Witness N."

22 If I remember well, Madam Hollis provided the Chamber with the

23 information, according to which Witness N had received a telephone call

24 from an individual who identified himself as Defence counsel for Mr. Zoran

25 Zigic. The Chamber then asked Madam Hollis to file a written application

1 in case she intended to bring specific allegations on that point. The

2 Chamber hasn't received such an application or motion to date and,

3 therefore, considers that no specific allegations have been made against

4 the Defence counsel of Mr. Zigic.

5 I am now going to give the floor to Mr. Stojanovic, and after that

6 we will hear Mr. Keegan.

7 MR. STOJANOVIC: [Interpretation] Your Honours, I really do

8 apologise for bringing up this rather unpleasant question. We conducted

9 an investigation in our attempt to see, with my colleague, my legal

10 advisor, and Mr. Zigic, whether anybody did this or attempted to do so.

11 It was an act which really leads to a certain amount of unrest and a lack

12 of confidence among the Defence team.

13 Of course, this can throw a shadow of doubt as to the fact -- with

14 the Trial Chamber or the Prosecution or anybody else following the work of

15 this trial. We know that resources are limited, but we would like to have

16 this investigated. The Prosecution knows something about this, knows who

17 gave out the information, and we feel that it would be useful perhaps if

18 the Prosecution would do everything in its power to find out what had

19 happened or not to make statements of that kind, because it brings

20 pressure to bear on the Defence teams.

21 It is our position that we do believe the Prosecution -- I can say

22 that we do believe them, that they did in fact receive a call of this

23 kind, but we should also like to draw your attention to the fact that it

24 was our position that this was a form of pressure and coercion on the part

25 of circles outside the Tribunal. And here I imply the whole of the

1 Tribunal, that is to say, the Office of the Prosecutor and the Trial

2 Chamber, and that this could affect the fairness of the Defence in this

3 trial. I'm not an optimist. I don't feel that a lot can be done. But I

4 would like us to assume a very serious attitude and ask the Prosecution to

5 make an additional effort in order to ascertain the facts and to see how

6 this whole thing came about. Thank you.

7 JUDGE RODRIGUES: [Interpretation] Before I give the floor to

8 Mr. Keegan, perhaps we should bring up another question. The Defence of

9 Zigic states that it was under a kind of a moral pressure after those

10 allegations to the extent that the image of the Defence was seriously

11 affected. We have to remind you that negligence on behalf of a certain

12 number of persons or individuals appearing before the Tribunal can play a

13 certain role in it. And as a result of the events, apparently the Defence

14 has been under a certain pressure lately.

15 Can you, Mr. Stojanovic, explain to us the exact nature of the

16 prejudice that, according to you, has been caused to the Defence team?

17 Mr. Stojanovic.

18 MR. STOJANOVIC: [Interpretation] Your Honour, I don't think I

19 stated that there was any negligence. I don't think I said that anywhere

20 or that I blamed anybody for professional negligence. Of course, there is

21 no need for me to remind the Trial Chamber what we mean by interference of

22 this kind, and of course there is a penalty involved for contempt of this

23 kind, up to seven years. And we are, of course -- this kind of threat

24 makes us uneasy. Of course, I don't want to hold it against anybody or I

25 don't have any doubts myself as far as I personally am concerned, but I

1 don't think it serves the purpose of the defence of my client. So that

2 something that was not fair has been done and that we have been threatened

3 with a very serious penalty.

4 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Stojanovic.

5 Mr. Keegan, it's a rather complex matter for you as well at this

6 point, because a number of things have happened so far without Madam

7 Hollis. We have many problems very often with the Office of the

8 Prosecutor because of the changes in the composition of the Prosecution

9 team. So one should be very careful about that. So now I am -- I find

10 myself in the position that I have to ask you questions about something

11 which you don't know much about. I don't think that you were present

12 there at that moment, but you are representing the Office of the

13 Prosecution today and I should like to hear you on this matter.

14 MR. KEEGAN: Yes, Your Honour. Thank you. I am informed that the

15 nature of the allegation was that the individual who contacted the witness

16 merely indicated they represented the Zigic Defence, without indicating

17 any identification. The Office of the Prosecutor, of course, would

18 normally not undertake a matter investigating potentially members of the

19 defence of an accused without the direct authorisation of the Trial

20 Chamber involved and indeed perhaps the supervision. There is some

21 precedent for such things in this Tribunal, as I'm sure you're well aware,

22 Your Honour, in other cases, where there are issues raised with respect to

23 Defence counsel.

24 It would seem to me in this type of situation perhaps the only

25 investigative step that could be taken, since the witness has no idea of

1 who the person was that actually called, would be to try and request

2 cooperation from the government involved to get phone records to see if

3 indeed there is a record of such a call that could be traced back to a

4 particular number, and even then the question would be how to prove who

5 made the phone call from that number. But, you know, absent some specific

6 direction from the Chamber to conduct such an investigation, the Office of

7 the Prosecutor of course would be a bit reluctant to just engage in

8 investigation regarding our colleagues, which is why I believe Ms. Hollis

9 didn't directly file anything further, because there was nothing further

10 in substance to the allegation itself. All the information that was

11 presented the first time is indeed all the information that there is to be

12 gained from the witness involved.

13 JUDGE RODRIGUES: [Interpretation] Mr. Keegan, if the final answer

14 is the following -- and again it's a hypothesis. If a call was made from

15 a public telephone booth, what then?

16 MR. KEEGAN: Well, exactly, Your Honour, which is why we haven't

17 taken any direct steps or asked for more particular action. Because of

18 the general nature of the allegation, we advised the Chamber there was

19 nothing further, absent some very specific -- one specific investigative

20 step which would require cooperation of the state. And even then, as I

21 indicated, exactly that, Your Honour: That may still not lead to any

22 conclusive information. So the question was, based on the general nature

23 of the allegation itself, whether any further steps should be taken. The

24 Office of the Prosecutor, given the circumstances, would not want to do so

25 absent specific direction from the Trial Chamber.

1 JUDGE RODRIGUES: [Interpretation] I have one more question for

2 you. Do you have any information as to the contents of that conversation,

3 of that telephone call?

4 MR. KEEGAN: Not anything -- just a moment, Your Honour. Not

5 other than, as I understand it, has already been indicated, Your Honour,

6 and that is the person asked whether the Defence could speak to the

7 witness and the witness refused. The issue, of course, Your Honour, was

8 raised because this individual is a protected witness and there was an

9 existing order with respect to contact for protected witnesses. So that

10 is the only reason that the issue was even raised.

11 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic, is there

12 anything else that you wish to add?

13 MR. STOJANOVIC: [Interpretation] Your Honour, I don't think I'll

14 be very constructive. I think that the question raised, that it is in all

15 our interests to destimulate behaviour of that kind, because we can also

16 expect behaviour of this kind from the other side. So I think it is in

17 all our interests to see that all parties are protected, as well as the

18 esteem of the Tribunal.

19 However, there is another point that has remained unclear. We

20 know that the Office of the Prosecutor, for example, contacted that

21 individual with regard to the question of whether we could come into

22 contact with that individual. It was the father of a witness, in fact.

23 Perhaps I'm not being quite fair to my colleagues from the Prosecution

24 because Ms. Brenda Hollis knew more about this matter than they, so I

25 don't know whether we should pursue this line. But the Office of the

1 Prosecutor contacted that individual, the individual who later stated that

2 the legal counsel of Mr. Zigic contacted him, and this was, I suppose, at

3 almost the same time.

4 JUDGE RODRIGUES: [Interpretation] Very well. We will take note of

5 that. But for the time being, this concludes our discussion of that

6 matter, and we shall make the ruling later on.

7 According to the counsel of Mr. Zigic, we have a motion for the

8 completion of an expert testimony. A motion was filed on the 21st of July

9 this year; the request was made for the hand of Mr. Zigic to be examined

10 by a specialist. I think that the Chamber finally decided that a

11 professional medical examination would be conducted, including a

12 psychiatric examination. So I should like to hear Mr. Stojanovic about

13 that application as well.

14 MR. STOJANOVIC: [Interpretation] Thank you, Your Honours.

15 We were satisfied with the decision taken by the Chamber with

16 respect to this expertise, but there was some misunderstanding and some

17 circumstances which arose from the testimonies that took place in the

18 meantime, and our application for expertise was specified. Zigic had

19 sustained an injury and we wished this injury to be examined from two

20 medical aspects: from the psychiatric aspect, that is to say, how this

21 could have affected his psychological state, the injury itself and its

22 repercussion, and all this for the period of the indictment and several

23 days after that - as we can see, a lot happened according to the

24 indictment, so a lot happened during that period of time - that is one

25 point; on the other hand, we wish to have the expert opinion of a

1 different medical expert who would focus on the physical capabilities of

2 Mr. Zigic for any more strenuous activities, such as inflicting blows and

3 injuries to individuals.

4 One of the problems that we encountered is the following: I think

5 that there is a difference in the English and French versions. The French

6 version is the authoritative version here, and it demands that a

7 psychiatric expert make his examination and findings. But from the

8 context of the decision, we see that this second aspect should be

9 incorporated as well. However, in the English version, the English

10 version speaks of the fact that an expert opinion is required and that it

11 be of a two-fold nature.

12 So with respect to this injury, we made an additional application

13 at one of the previous Status Conferences, that the same experts should

14 make an additional effort and check and examine to see whether Mr. Zigic's

15 ears were ever pierced so that we could refute the testimony of one

16 witness who said that he had earrings.

17 In our written application for this clarification, we also added

18 the request that those same experts should check out when the injury was

19 made to Zigic's face, the scar. We said that it was a scar dating back to

20 1999 [sic], that is to say, after the time period when the events took

21 place that are mentioned in the indictment.

22 Unfortunately, as far as I was able to tell Mr. Zigic, the last

23 experts, latest experts, although they were of one particular profession,

24 succeeded in examining all these aspects; although I cannot state this

25 with any certainty until I receive their reports so that I can check this

1 out. Thank you.

2 I meant to say 1992, that the injury was in 1992, and not 1999.

3 This is a medical document that we attach with respect to the injury made

4 to his jaw, with the request that the expert should ascertain

5 the verisimilitude of that.

6 JUDGE RODRIGUES: [Interpretation] I'm sorry, Mr. Stojanovic, but I

7 have to ask you if you intend to request any other medical examination of

8 any other body part of Mr. Zoran Zigic. We were supposed to wait for the

9 results of the analysis, but in the meantime, we requested an examination

10 of the ears of Mr. Zoran Zigic as well. Now we're perhaps going to have a

11 request to examine his hand. Do you have anything else? Could you please

12 ask for these examinations all at once, because otherwise every time we

13 have a problem, you have a request for a medical examination. Is this the

14 last time that you are asking for a medical examination of Mr. Zoran

15 Zigic, or are there going to be any more such requests?

16 MR. STOJANOVIC: [Interpretation] Your Honour, this is very

17 unpleasant for me. From the time that I received the information, I

18 tendered my application. I don't want to abuse your patience in any way,

19 but I think that it would be even more erroneous on my part had I omitted

20 to file an application of that kind. I filed it when I received the piece

21 of information and the reliable data that I received and the medical

22 documents that I received.

23 JUDGE RODRIGUES: [Interpretation] The Chamber will make a ruling.

24 Mr. Stojanovic, you also had an oral motion concerning the

25 language of the documents. Could you be more specific, please? At the

1 end, I will give the floor to Mr. Keegan to respond to all of these

2 questions.

3 MR. STOJANOVIC: [Interpretation] I assume that you are referring

4 to the fact that some documents were not sent in to us that were

5 necessary, the disclosure of the documents in the language understood by

6 the accused.

7 Your Honours, I think that it is Rule 66 that relates to that, and

8 that is a clear-cut one, and it relates to witness testimony. I think

9 that in addition to a series of rulings that have been made, you were at

10 one of these Status Conferences and said that the accused should have all

11 the accusatory documents submitted in a language which he understands.

12 Now, I don't mind if I receive documents in English; that is no problem.

13 On the other hand, the accused is the most important source of information

14 for us; therefore, it is his right to have material disclosed in the

15 proper way. And the Defence is there to represent their client.

16 We do have a series of documents in our possession -- that is to

17 say, we don't have a translation of those documents. This is just one

18 file of Mr. Zigic, and I'll quote it by way of an example, let me quote

19 the last document of the 28th of April, 2000, it is a confidential

20 document, marked confidential. I don't know whether the Prosecution knows

21 which document I have in mind. "Attachments A and B to the Prosecution's

22 Further Submission Pursuant to Rule 65 ter," that is the heading of the

23 document, I don't think it has been translated; whereas it contains a

24 series of statements and, amongst others, the witness that was examined

25 here today. That has not been translated into B/C/S, or maybe it has but

1 we have not received a copy. That is just one example that I wish to

2 quote.

3 JUDGE RODRIGUES: [Interpretation] Have you finished?

4 MR. STOJANOVIC: [Interpretation] Yes, Your Honour, thank you. It

5 would be a good idea if we settle this issue without tiring the Trial

6 Chamber with this. Thank you.

7 JUDGE RODRIGUES: [Interpretation] Yes. Our patience is slowly

8 running out.

9 Mr. Keegan, regarding the issue that's been brought up by

10 Mr. Stojanovic, the medical examinations and the language of the

11 documents, would you please respond?

12 MR. KEEGAN: With respect to the medical examinations, Your

13 Honour, as a fundamental principle, the Prosecution normally would not

14 object. For things such as dating of scar tissue, we would request some

15 showing as to, one, the fact that it's a recognised ability or scientific,

16 I guess, possibility to accurately date a scar. I'm not too sure I've

17 come across that. With the exception, perhaps, of very recent ones. But

18 if we're talking about nine years, I'm not so sure. So perhaps a showing

19 at least that there's some basis for asking for such a test before the

20 Tribunal is going to embark down that road, and we know whether we need to

21 prepare to respond to it is really the issue.

22 With respect to, of course, a psychiatric exam, a physical exam,

23 for example, of a hand injury, obviously that's something that we wouldn't

24 object to.

25 With respect to the documents, I must confess I actually thought

1 the Defence was referring to something else. I can say that we do make

2 every effort to disclose in both languages whenever it's humanly

3 possibly. With respect to the 65 ter submission, the Prosecution would

4 not request that that be translated from the translation unit; one,

5 because it's a filing to the Chamber, as well as to the Defence, but the

6 Defence actually receive the full version of the witness' information from

7 which the extract is taken. So they do get the information in B/C/S

8 disclosed in the complete fashion. So while they would not receive the

9 summaries of the 65 ter, they would in fact receive the complete

10 information from the witness. So I don't think there's any prejudice

11 there.

12 I actually thought he was referring to some proffers or statements

13 from investigators which we provided this weekend as a result of

14 information which the witness disclosed once they arrived here and we had

15 the opportunity to simply go over the categories of testimony. And in

16 fact, one was the issue of the Kvocka photo board when the witness said

17 something that was different. We prepared that information and disclosed

18 it the same day. Because it was the weekend, we didn't have any

19 translation assets available. As I am aware that the Defence does

20 have -- at least counsel have English capability, we chose to simply

21 provide that information as soon as possible so they would have as much

22 notice as possible. I do know that the -- in such an extreme case, the

23 Detention Unit usually has someone who speaks the accused's language who

24 might be able to assist if the counsel can't assist in explaining it to

25 the accused. But we have these things translated as soon as possible.

1 So that is what I thought he was referring to. And yes, we did

2 disclose some information, but we did it because we felt it was the better

3 course to give notice as soon as possible as opposed to waiting until both

4 languages were available. But we are entirely mindful of the Court's

5 ruling on this issue and we are attempting to follow it to the letter.

6 JUDGE RODRIGUES: [Interpretation] Mr. Stojanovic, do you wish to

7 add anything?

8 MR. STOJANOVIC: [Interpretation] With respect to the first

9 question, medical documents, we did hand them in with medical

10 certificates, in 1992, I think. I have a copy here, and some of it is in

11 handwriting. It is the -- unfortunately, we weren't able to get the

12 originals, but I don't think that would be a problem. At the request of

13 the Tribunal, we could, of course, receive the original from the General

14 Hospital in Prijedor, and I think that the Prosecution too could also

15 obtain those documents. I think that we also have certificates that tell

16 us that the originals do exist and all the medical documents exist.

17 As to the second point, that the Detention Unit has an

18 interpretation service, we do not consider that to be sufficient to assist

19 us, because the material is so vast. There are so many documents. So I

20 don't think that we are always able to help along those lines in the

21 Detention Unit. Thank you.

22 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Stojanovic. I

23 think we can now move on to the third point of the agenda, that is, the

24 issue that was brought up by the Prosecutor concerning the affidavits. We

25 can link them with the reports and other documents.

1 Those were the two aspects of the problem that you wanted to be

2 discussed today during the Status Conference, Mr. Keegan. Can you

3 therefore explain to us what the issue is.

4 MR. KEEGAN: Yes, Your Honour. I was simply requesting a

5 discussion about the actual application of Rule 94 ter because it has not

6 been, in fact, a Rule that's been activated in very many cases; only one

7 other one directly that I know of. The Rule, of course, would seem to

8 indicate that the -- in addition to filing, of course, the affidavits,

9 that a witness is offered who would tender the affidavits. Normally that

10 would be the investigator or whoever the person is who goes and

11 accompanies the witness when they take -- or give their affidavit in front

12 of an official from whatever country, the country where the affidavit is

13 actually taken.

14 I was proposing a procedure where the affidavits would simply be

15 filed and the Prosecution would offer to the Court, if requested, a

16 summary of the procedures. The two affidavits which we'll be filing

17 tomorrow were taken in Bosnia-Herzegovina and they are accompanied by a

18 certification by the judge in front of whom the affidavits were given. We

19 believe that the actual covering document would provide the necessary

20 information for Rule 94 ter purposes.

21 I spoke with the Defence about this issue. It seems we have

22 reached an agreement that in principle the parties will not object to the

23 offering of affidavits simply by counsel filing them with the Chamber and

24 the other side. Obviously, there may be individual cases where, for

25 whatever reason, either side may want to hear specific evidence with

1 relation to a particular affidavit. And of course the parties would still

2 be free to object to the affidavit itself. This would simply be the

3 process by which they could be submitted before the Chamber. And it seems

4 that we have an agreement on that issue, provided it meets with the

5 approval of the Chamber.

6 JUDGE RODRIGUES: [Interpretation] Mr. Keegan, you could perhaps

7 elaborate also on the other point that you wanted to be discussed today,

8 namely, the issue of what I refer to as reports and other documents. You

9 probably are in a better position to know what it is all about than

10 myself. And then I will give the floor to the Defence to pronounce

11 themselves on both issues.

12 MR. KEEGAN: Yes, Your Honour. This was just another housekeeping

13 matter. And again, as you will know, prior to even this Chamber being

14 seized of the matter, there was a motion for admission of documentary

15 evidence which was granted by the previous Trial Chamber, such that there

16 is already a rather large amount of documents already admitted into

17 evidence. Those documents, when they were filed, some of those documents

18 still were in draft translation form. It has been a requirement in every

19 case I've been associated with that a final translation is required.

20 Those translations have now been prepared and we simply wanted to submit

21 the final translations.

22 The question is particularly whether the Chamber wants to have it

23 officially filed as a completely separate filing or rather to provide it

24 to the registry for them to substitute or deal with it in the fashion that

25 they think best with respect to the actual mechanics of having the

1 official case file within the registry. We could, of course, provide

2 complete new copies to the Defence if that's what they would like. But it

3 was again simply a housekeeping matter to find out what the Chamber

4 desired with respect to that.

5 JUDGE RODRIGUES: [Interpretation] Very well, then. Thank you,

6 Mr. Keegan. Let me give the floor to the Defence. Let us hear the

7 Defence on the issue of affidavits and other documentary evidence.

8 I see that Mr. O'Sullivan is going to speak on behalf of all his

9 colleagues. Is that the case, Mr. O'Sullivan? You have the floor.

10 MR. O'SULLIVAN: Yes, Your Honour. Thank you. Perhaps the second

11 point first, the new filings. Our position is we'll leave it to the

12 Chamber to decide whether you want to have these simply replaced in the

13 file or given new exhibit numbers. We would, however, want to receive a

14 copy of the final version of these translations. Those are our

15 submissions on that point.

16 On the affidavits under 94 ter, as Mr. Keegan said, we've

17 discussed the matter. We've received the two affidavits in question they

18 wish to file tomorrow. We have no objection to the procedure proposed by

19 Mr. Keegan. I think that if in the future we receive these affidavits

20 ahead of time, we can notify the Prosecution whether we agree to waive the

21 necessity of calling someone. That seems to be a sensible approach.

22 And I assume Rule 94 ter is silent to this, but I assume that in

23 the filing, the Prosecution will identify whose testimony they

24 corroborate. That's an important point for the Defence under Rule 94

25 ter. So long as that's specified. Thank you.

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

2 Mr. O'Sullivan.

3 Mr. Krstan Simic would like to add something perhaps to what

4 Mr. O'Sullivan has just said.

5 MR. K. SIMIC: [Interpretation] Your Honours, I accept everything

6 that Mr. O'Sullivan has just said, but the agreement we reached and what

7 Mr. O'Sullivan presented was what he said. But I think that we should

8 examine the overall procedure, because we never discussed that in detail.

9 We received two documents, which we can consider in a way to be a

10 pilot study of the institute that could be very beneficial for trials.

11 But those two documents -- they are the testimonies of two witnesses -- do

12 not meet with the standards that are required and stipulated by Rule 94

13 ter. That is to say, it states clearly here that "To prove a fact in

14 dispute, a party may propose to call a witness." That means we must have

15 a disputed fact and a set witness. And this: "To submit in corroboration

16 of his or her testimony on that fact, affidavits or formal statements

17 signed by other witnesses in accordance with the law and procedure of the

18 state in which such affidavits or statements are signed."

19 These affidavits are classical documents, classical statements by

20 witnesses taken by the investigators of the Tribunal. They have

21 come -- they came to the Court in Sanski Most, and on oath, in the Court,

22 they affirm that they did indeed make those statements and they signed

23 them. So that the oath was taken, but this was taken after the statement

24 was taken, whereas the aim of an oath is to caution the witness to tell

25 the truth and that he must not lie because there will be consequences. So

1 the document sent by the Prosecution and which will be offered tomorrow,

2 in our opinion, do not comply with the necessary requirements. This

3 method of work is very useful, but it can be highly detrimental, and it is

4 absolutely unacceptable that we just receive statements as we did in the

5 disclosure process. This was not proof and evidence for us. It was just

6 pure information. But these documents must be focused on set facts so

7 that we are able to follow which fact in dispute is being proved by the

8 party in question.

9 We consider that this Tribunal has set rules and regulations and

10 rulings that we'll all have to abide by. Therefore, we consider that the

11 Prosecution must state in a timely fashion which witness and which facts

12 they are going to substantiate through this document and that all the

13 procedure must be taken into consideration, that the statements must be

14 taken under oath. And if the Defence wishes to bring the witness in for

15 cross-examination, they must be allowed to do so, because, for example, if

16 we were to have 20 witnesses and 20 statements compared to 57, then this

17 is almost 35 per cent. That is to say, 35 per cent of the statements

18 would not be under the control of a direct trial and the possibility of

19 the Trial Chamber and everybody here to judge the credibility of the

20 witness. So we do support this agreement but under strict rules and

21 regulations, as you deem fit to proffer.

22 JUDGE RODRIGUES: [Interpretation] If I understand you correctly,

23 you do not object, but you just wanted to add certain proposals, certain

24 suggestions, in respect of the overall procedure. Okay. Thank you very

25 much. Thank you for your proposals and suggestions, Mr. Simic.

1 Mr. Keegan, anything else? No?

2 MR. KEEGAN: No, Your Honour. I guess the question would be we'll

3 need clarification on the issue of whether we are required to identify,

4 perhaps in some other format, the facts in dispute which the affidavit is

5 directed toward, if that needs to be done with the submission of the

6 affidavit, because, of course, that's another step that would have to be

7 taken which would dictate when the affidavit could be filed. Of course, I

8 think it has to be kept in mind that all of these accused have pled not

9 guilty which means they are disputing every fact with respect to the

10 charges, so every fact is in issue. So that's the starting point that the

11 Prosecution begins with. So these affidavits are not the same, and it

12 appears to me that Rule 94 doesn't envision them to be the same as

13 affidavits that you might have in a very discreet case in a national court

14 that only relates to ownership of a car or some other very minute,

15 particular fact. I think this is a separate issue.

16 With respect to the procedures, I guess we'll have to leave that

17 to the Chamber. The affidavits were prepared in front of a judge who

18 certified them. As far as the Prosecution is concerned, they are then

19 done in accordance with the procedures of that state.

20 Yes, Your Honour.

21 JUDGE WALD: You do have a particular witness -- no matter, for

22 the moment, when it's disclosed or in what form, but you do have

23 particular witnesses and particular facts in dispute to which you would

24 tie the corroboration; is that right?

25 MR. KEEGAN: Yes, Your Honour. Many of these will go to, in fact,

1 more than one witness or more than one fact.

2 JUDGE WALD: But you're in a position to specify which facts and

3 which witnesses.

4 MR. KEEGAN: Yes, of course, Your Honour. If required to do so,

5 we will.

6 JUDGE WALD: Okay.

7 JUDGE RODRIGUES: [Interpretation] Good. I think that we have come

8 to the last point of the agenda, that is, the motion of the Prosecutor to

9 consolidate the indictment and to correct the annexes.

10 Before we broach the discussion, I should like to ask the Defence

11 whether the counsel are ready to discuss the issue or not, because the

12 motion was filed only yesterday. I told you at the beginning that if the

13 answer is no, we can leave that for some other time. I can see several of

14 you shaking your heads.

15 MR. O'SULLIVAN: The Defence is still awaiting the B/C/S

16 translation, and it's only at that point that we'll be in a position to

17 deal with this matter.

18 While I'm up, there was a request to know whether you would share

19 the schedule with us between now and October, if Your Honours can.

20 JUDGE RODRIGUES: [Interpretation] You're right, Mr. O'Sullivan.

21 Thank you for bringing this fact to my attention. I had it written here

22 but I forgot.

23 As regards the motion for leave to file a consolidated indictment,

24 maybe we can still leave the discussion for the moment until you obtain

25 the translation. So if you would be kind enough to inform us of the

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1 receipt of the translation into B/C/S, then we will be in the position to

2 discuss it.

3 Mr. Stojanovic, it seems that you have something to say. Does it

4 concern this document?

5 MR. STOJANOVIC: [Interpretation] Yes, Your Honour. I think that

6 we could be of assistance and save some time and effort with respect to

7 translation. Let me say a few words.

8 JUDGE RODRIGUES: [Interpretation] You're going to translate the

9 document into B/C/S, Mr. Stojanovic? You said that you could be of

10 assistance. I thought that you were going to translate the indictment for

11 us; is that the case?

12 MR. STOJANOVIC: [Interpretation] Well, believe me, I haven't got

13 the B/C/S version. But I think that the motion -- the request, in fact,

14 is a new indictment, so I think that we should think about this before we

15 burden the translation service with the translation of the document

16 itself. Thank you.

17 JUDGE RODRIGUES: [Interpretation] The Prosecutor has been

18 challenged now. Can you respond to this, Mr. Keegan?

19 MR. KEEGAN: Yes, Your Honour. I think that there is no question

20 about the indictment. From the discussions that we've had after sessions,

21 it appears that the request for the correction of the schedules may

22 engender some debate from Mr. Krstan Simic, at least, as to what affect

23 that may or may not have vis-à-vis the indictment. Of course, our

24 submission makes it clear that we think it's an administrative, a

25 typographical change.

1 With respect to this translation issue, it's why, in fact, I

2 raised it the other day, requesting that perhaps the Registry be asked to

3 perhaps put a priority on that, because obviously this is an issue that

4 would be significant for the parties to know what we're dealing with. But

5 from the submission, it should be clear that it really was merely a cut

6 and paste from the Prcac indictment, which is already translated into

7 B/C/S, into the Kvocka and others indictment, which is already translated

8 into B/C/S. So it should really be a simple matter for the translation

9 unit to cut and paste their own versions. It seems to me that I would

10 have a question as to why it would take them more than a day to produce

11 the new version, if that long, because the language is exactly the same.

12 It was just merely lifted. Of course, his name is added to a few

13 paragraphs, but that's the only change.

14 So I hope that it is something that can be dealt with soon. But,

15 of course, that isn't a translation that the Prosecution would be

16 responsible for asking for, which is why I did raise it with the Chamber.

17 JUDGE RODRIGUES: [Interpretation] I hope it can be done quickly,

18 all the more so because it seems to be a technical matter, just copying

19 and pasting, as you've said, Mr. Keegan.

20 Mr. Stojanovic.

21 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour, for your

22 patience one again. I don't wish to enter into detail. I should just

23 like to quote one amendment.

24 JUDGE RODRIGUES: [Interpretation] I'd like to remind you, I don't

25 know whether you're paid by intervention by the Registry, but ...

1 MR. STOJANOVIC: [Interpretation] There is a new section which says

2 that Mr. Zigic is responsible for all killings in Keraterm, Omarska, and

3 Trnopolje. That is the new version. I shall say no more.

4 JUDGE RODRIGUES: [Interpretation] I think that the Prosecutor will

5 take note of what you have just said and will bear that in mind.

6 Let us move on to the following question. We've all been

7 expecting the calendar. As regards the schedule, that is, the calendar,

8 you know what's happening this week. We have one day left. As regards

9 next week, I have to say that today, I don't know who said that on the 5th

10 and the 6th of September we would not be sitting. I have always said

11 myself that we would be sitting the 5th until the 8th and that we won't be

12 sitting on the 4th of September. I don't know who invented those other

13 dates, but there seems to be a difference between the French version,

14 which says from the 5th until the 8th, and the English version, which says

15 the 7th and the 8th. We have to be clear. "The 5th" in French is not

16 "the 7th."

17 I do not wish to affect the way witnesses are being organised. We

18 have to be very specific, very clear, in order to avoid witnesses coming

19 and leaving and then having to come again to the Tribunal. We have to be

20 mindful of their situation. The witnesses are perhaps the most important

21 individuals in this courtroom, and we somehow tend to forget that.

22 So let me repeat: Next week, we will be sitting from the 5th

23 until the 8th of September, and we will not sit on the 4th of September.

24 As regards the week of the 11th of September, the Chamber will sit from

25 the 11th until the 15th of September. The week of the 25th, it was

1 envisaged that we would be sitting from the 25th until the 29th; however,

2 due to some other commitments of the Judges of the Tribunal, we will not

3 be able to sit on the 29th of September. So there will be no hearings on

4 the 29th of September.

5 We then come to the month of October. As regards October, the

6 week of the 2nd until the 6th of October is the last week of the

7 Prosecutor's case in chief. But since we are losing the 29th of

8 September, and we have to take fully our responsibilities, I think that

9 the Prosecutor said -- that we said that the Prosecutor has 21 days left.

10 I think that -- well, that means that as of today, the Prosecutor has 20

11 days left because of that. So we have to compensate for that day and we

12 will have to sit in the afternoon during the week of the 25th of September

13 and the week of the 2nd of October.

14 I'm looking at the transcript in order to avoid problems. As

15 regards that issue, the Chamber will provide you with more specific

16 information and more final information.

17 One other thing regarding the schedule. We spoke about the need

18 to have at least one Status Conference prior to the commencement of the

19 Defence case. Let me make a digression here. As regards the month of

20 December, we will be sitting from the 4th until the 8th of December, that

21 is, this Chamber will be sitting from the 4th until the 8th, and from the

22 11th until the 15th of December. The 4th of December will be the first

23 day of the Defence's case in chief. So we will actually begin with the

24 Defence case on that particular date, that is, the 4th of December; which

25 is to say that between the 6th October and the 4th of December, we must

1 have at least - I have to repeat, at least - one Status Conference prior

2 to the Defence case.

3 I have to say that in one other Status Conference, we spoke about

4 the weeks of the 6th of November, the 22nd of November, or the 29th of

5 November, those were the dates that were mentioned. As you know, we have

6 to act pursuant to the Rules which provide that we have to have one

7 preparatory Status Conference and one final Status Conference before the

8 beginning of the case. Therefore, we are now in the position to tell you,

9 tell us which is the date which is the most convenient for you.

10 After we finish the Prosecution case, you will have some time to

11 prepare yourselves, but I do not wish you to come back here if the time is

12 not convenient for you. We are all available here, you can always make

13 contact with us or with Mr. Olivier Fourmy, and you can communicate to

14 Mr. Fourmy the adequate, the convenient date for the Status Conference.

15 I see that there seems to be already an agreement. The 6th of

16 November is convenient for you?

17 Mr. Simic.

18 MR. K. SIMIC: [Interpretation] Your Honour, I completely agree

19 with the 6th of November. We agree.

20 JUDGE RODRIGUES: [Interpretation] That's great, Mr. Simic. Which

21 brings me to another question that I have to ask. It can happen that the

22 6th of November, we are not able to complete all the necessary

23 discussions, and it is possible that we will need the 7th of November,

24 perhaps, for the Status Conference before the beginning of your case. So

25 I should like you to consider both dates, the 6th and, if necessary, the

1 7th. We're going to earmark those two dates, the 6th and the 7th of

2 November, but we will use the 7th of November only if it is necessary. So

3 those days are, therefore, reserved for the Status Conference prior to the

4 commencement of the Defence case in the Kvocka case.

5 All I can say at this point is that we have managed to establish a

6 schedule until December, but during that particular Status Conference, I

7 think we can perhaps plan the schedule until the end of the presentation

8 of evidence, that is, until the end of the trial. Maybe at that point, on

9 the 6th of November, we will be able to establish the final schedule for

10 the completion of the trial. The technical organisation is just an

11 instrument of control, but I wanted to suggest, according to Mr. Keegan, I

12 wanted to propose the calendar or the schedule, because we can have

13 various obligations or commitments and it is always advisable to plan well

14 in advance. So that's that as regards the schedule and the calendar.

15 I don't know whether there are any other remarks to be made.

16 Mr. Keegan, do you wish to comment on what I have just said? But I hope

17 you're not going to make any comments as regards the 20 days. Were you

18 going to speak about that?

19 MR. KEEGAN: No, Your Honour. I was going to simply say that the

20 Prosecution is prepared to meet that calendar.

21 JUDGE RODRIGUES: [Interpretation] Yes.

22 MR. K. SIMIC: [Interpretation] Your Honour, with respect to the

23 calendar, I have a question to ask. You know that we have changed

24 standard practice and that this case began with Mr. Kvocka's examination.

25 Now the Prosecution has 20 days for its case and intimations have been

1 made of the opening of the Defence case. Now, for reasons of preparation,

2 we should like to know when and whether the Prosecution will use its right

3 to cross-examine, because that is something that will have to be

4 incorporated into the whole proceedings, so then the proceedings could

5 last longer, and then we, in turn, would have to organise our witnesses

6 for a very taxing portion of the trial. So does that occur within the 20

7 days or would that be something that would take place later on? Could the

8 Prosecution enlighten me there on that point?

9 JUDGE RODRIGUES: [Interpretation] A very pertinent question,

10 Mr. Simic, indeed. Thank you very much.

11 Mr. Keegan.

12 MR. KEEGAN: Yes, Your Honour. It was our intention to conduct

13 the cross-examination in what we would call the old-fashioned way, which

14 is in the appropriate time, which would be actually at the start of the

15 Defence case. So it was not our intention to use any of our Prosecution

16 case to conduct the cross-examination, but to do the cross-examination

17 when the Defence case began.

18 It is not clear to us, in fact, how the Defence case will be

19 presented, whether there is additional information or not with respect to

20 this accused and his testimony. So it was our intention, and I believe

21 that would be clear from the record at the time, that we intended to only

22 cross-examine after the close of our case and when the Defence case began.

23 JUDGE RODRIGUES: [Interpretation] We will leave the issue for

24 later on. We will discuss it during the Status Conference before the

25 beginning of the Defence case.

1 I don't think there's anything left on the agenda.

2 [Trial Chamber confers]

3 JUDGE RODRIGUES: [Interpretation] We expected to finish at half

4 past 5.00, but my colleague has reminded me of the question that was

5 raised this morning, the issue of the scope of cross-examination and

6 redirect examination. We already started the discussion, and it should

7 perhaps be advisable to finish the discussion for the purpose of our

8 hearing tomorrow so that we know what will be the status of the documents

9 proposed by Mr. Simic. Since we are still within the envisaged time, I

10 think we should take this opportunity and finish the discussion.

11 Mr. Stojanovic, as regards the documents which were the subject of

12 your objection concerning the witness that was heard today, did you have

13 any discussions with the Prosecutor, and what is the result of those

14 discussions?

15 MR. STOJANOVIC: [Interpretation] Unless I'm wrong, it referred to

16 the witness that was to have been examined today. I will do everything

17 possible on my side to ensure tomorrow's examination. It is not a formal

18 objection, objection of a formal nature, but I -- believe me when I say

19 that I just was not able to read through the document. I think that the

20 new indictment was a priority, so I examined that, but I did truly receive

21 the documents just this week.

22 The fact is that my colleague, through a courier, perhaps -- in

23 August, perhaps a little more than ten days ago, received this. I cannot

24 say that with certainty, and I did not wish to blame the Prosecution. My

25 intention was just to say that we did not have the time necessary to

1 prepare for this. And even if we do not state in formal terms that seven

2 days are required, because I think it is stipulated that the time required

3 is the time dictated by circumstances, but my colleague received only a

4 portion of the documents 10 or 12 days ago and he too received the rest of

5 the material three or four days ago for the witness that was to have been

6 heard today.

7 So let me remind the Court that in the meantime there has been

8 some rotation between my colleagues. Some of the material was sent to

9 Banja Luka, whereas it should have been sent to me. So the time it took

10 for him to send the documents on to me, this made the whole process more

11 lengthy. And as we know that this is the holiday season, these are all

12 circumstances that must be taken into consideration. But let me say that

13 we shall do our best to avoid situations of this kind from recurring. I

14 don't think that we are to blame either. And this is not just a formal

15 objection. I tell you quite honestly that I have not had time to read a

16 significant portion of the material relating to their witness that was to

17 have been heard today, but I do think that by tomorrow morning I'll be

18 able to get through it all. Thank you.

19 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Stojanovic.

20 Mr. Keegan.

21 MR. KEEGAN: Yes, Your Honour. Just so the record is clear, we do

22 have the courier receipts for each day they were sent out. The document

23 that was sent out on the 18th of August, which of course was before the

24 changeover of counsel, is only a medical report related to the witness.

25 The documents of substance which counsel is referring to were sent out

1 much sooner, some in 1999, and even the ones disclosed in August were

2 redisclosures of statements. But we do have the receipts that they went

3 out and on the days indicated. And we, of course, are happy to provide

4 whatever receipts are required for counsel to see what they can do to

5 facilitate a more expedient delivery on their end of the system. But we

6 are doing our best to keep meticulous records of everything, and of course

7 the signed receipts are always necessary so that we can confirm. And

8 Mr. Stojanovic has provided those. When he comes here, he gives them to

9 us.

10 That's all we would have, Your Honour, but we would like to

11 address the other issue related to prior statements and conduct of

12 examination.

13 JUDGE RODRIGUES: [Interpretation] So you have 20 days to prove the

14 efficiency.

15 Mr. Stojanovic, do you wish to add something? Let me remind you

16 that it is not necessary to repeat things.

17 MR. STOJANOVIC: [Interpretation] No, Your Honour. My colleague

18 has just told me that the proffer was received on Sunday, and that's the

19 vital point, I think. So I don't have anything to add. I think we have

20 solved the matter and that we must be ready to proceed tomorrow morning.

21 JUDGE RODRIGUES: [Interpretation] I think that the matter can be

22 closed. I have to say that I'm concerned about the presence of witnesses

23 here in the courtroom and at the Tribunal. We should really all try to

24 solve the problems before the witnesses are brought into the courtroom.

25 You can contact the Prosecutor. You can say that it was also my mistake,

1 I allowed the witness to be taken into the courtroom. However, if you

2 know that you are going to bring up an issue, I think that you should act

3 in good faith and advise the Prosecutor that you would be bringing up the

4 issue.

5 I'm telling you this. It is true that the Prosecutor has also

6 made an omission in that respect, but we have to bear in mind the complex

7 character of these proceedings and the organisation of the proceedings.

8 There are many counsel here in this courtroom, not only one. We have a

9 number of the accused and we have to respect all of the participants in

10 the work of this courtroom, otherwise we waste a lot of time if we do not

11 make proper contacts and if we do not communicate amongst each other.

12 There are things for me here which are not acceptable. There are

13 some manners which I don't deem to be civilised manners here. We are all

14 adults, civilised people, and I think we are all able to have a normal

15 relationship with others and that we are capable of efficient

16 communication with others. Perhaps it was my wrong when I came here. It

17 was not my style. But it was not something that I expected from other

18 people. You're all mature individuals here and you can -- you are able to

19 communicate between each other. I always appeal to you to communicate

20 with each other, because things are only exacerbated with the lack of

21 communication.

22 As regards this particular incident, I should like to add that we

23 can save our energy for better things and we can save time for more

24 important things, and if we talk to each other, a lot of time will be

25 saved.

1 However, talking about saving of energy, I think we should discuss

2 the issue of cross-examination once and for all. It took me quite a while

3 to understand the way things are being conducted, and I must say that I

4 learned a lot today, because I come from a system where things do not

5 function in this way. But the law that is being applied here is not our

6 legal system or some other legal system; it is the legal system of the

7 Tribunal that is being applied here. So bearing this in mind, the

8 necessity to communicate with each other, I have to say that we have to

9 have certain common ground which will enable us to work together. And you

10 know it works both ways. We are now hearing evidence presented by the

11 Prosecutor and you are the ones to conduct the cross-examination. Next

12 time you will be in the opposite situation. You will be conducting

13 examination-in-chief and the Prosecutor will do the cross-examination. So

14 you have to bear in mind that time as well.

15 I am now going to give the floor to Mr. Keegan to do a kind of

16 brainstorming here and to give us some suggestions, some proposals as to

17 how that should be conducted, in keeping, of course, with the relevant

18 rules of the Tribunal. During one of the interventions of Mr. O'Sullivan,

19 I said that we are not applying a common-law system here or a civil law

20 system. There are rules in the United States or in Canada which are of

21 course typical rules of a common-law system, but here we have a mixture of

22 the two. The procedure that is applied here also has to be very strict,

23 but very strict for everybody. In case of certain rules being flexible,

24 they have to be flexible for everyone.

25 Mr. Keegan.

1 MR. KEEGAN: Yes, Your Honour. I would just like to begin by

2 reemphasising. The Prosecution, of course, fully understands and supports

3 the right of an accused to conduct a full and fair cross-examination, and

4 that, of course, can include matters that go beyond the scope of direct,

5 strictly speaking. They can, for example, as we've talked about, go into

6 matters related to bias with respect to the particular witness testifying

7 or indeed other witnesses, or perhaps even the accuracy of other

8 witnesses' testimony in certain circumstances.

9 Our objection was really based in light of the rulings at this

10 Tribunal, in particular in this Chamber, with respect to the use of former

11 statements. The Prosecution has been directed to conduct its examinations

12 in the most expeditious manner possible. We seek to do that by simply

13 limiting it to that information which we think the witness is in the best

14 position to speak about.

15 With the witness in question, for example, Mr. Brkic, in my own

16 system I would have endeavoured to use that statement myself as past

17 recollection recorded because there was information in there that we would

18 have submitted was relevant that he didn't recall now, does not recall any

19 longer. We did not do so because of the restrictions that have been

20 placed on the use of statements.

21 And that was really the basis for my objection of the Defence

22 attempting to use the statement itself with respect to the cross, not to

23 the essential point of whether or not Mr. Zigic was present at a

24 particular incident, which could have been handled by question as opposed

25 to the use of a statement. And the Prosecution's only submission in this

1 regard is that if the Chamber is minded to allow the opposite party to use

2 a statement in cross-examination, then of course it has to allow the party

3 to potentially use the statement then on direct, because obviously if the

4 Prosecution knows that the Defence is going to be permitted to question

5 any incident that's relevant or alleged in the indictment of any witness

6 who may mention it, then of course we're going to endeavour to cover the

7 matter in direct examination to ensure that the Trial Chamber has the full

8 information, because the other risk for the Prosecution is that on

9 redirect we won't be allowed to fully cover that area. And it's really

10 that matter. And of course the situation, as you indicated, would be the

11 reverse once it's the Defence case.

12 So we don't object to either option, that is, very strictly

13 limiting the use of statements themselves or broadening that scope. But

14 if it's broadened, then the Prosecution would only indicate to the Trial

15 Chamber that it would then perhaps need to go into matters which the

16 Chamber might normally not think directly relevant to the witness's

17 examination in direct in the first instance. But of course all of us here

18 being seasoned counsel, we know that we can anticipate what the other

19 counsel may or may not be interested in, and of course we would seek to

20 cover that.

21 And so that was really the basis for our objection, and we don't

22 really have a position one way or the other. We're simply asking that if

23 consideration is given to the Defence request, that consideration be given

24 to what then is required for the Prosecution to be able to address the

25 matters fully in fairness to the Prosecution's right to present its case.

1 Thank you, Your Honour.

2 JUDGE WALD: Sorry, Mr. Keegan.

3 MR. KEEGAN: Yes, Your Honour.

4 JUDGE WALD: I only -- over the recess I was able to go back and

5 look at the Rules myself, as we all do, and I know you're familiar with

6 them, but they have recently been amended in this respect. You're well

7 aware of that. So that Rule 89(H) says cross-examination -- 89(H)(i):

8 "Cross-examination shall be limited to the subject matter of the

9 evidence in chief and matters affecting the credibility of the

10 witness ..." Okay. That's two.

11 And this is the new part: "... where the witness is able to give

12 evidence relevant to the case for the cross-examining party to the subject

13 matter of that case."

14 I assume we're all following those rules so that the cross -- and

15 I don't think anything you said is inconsistent with that, but I just want

16 to clarify it, that therefore a cross-examiner could ask the witness

17 directly questions that might refer to something he had said earlier in

18 his statement that had not been covered on direct, so long as he could

19 make some, as you say, foundation showing that it was either in line of

20 affecting the credibility or evidence relevant to his case. But he would

21 have to say why he was doing that, but he could directly examine him on

22 the stand with reference to those matters under this rule; right?

23 MR. KEEGAN: Yes, Your Honour. It's the absolute use of the

24 statement, not -- for example, questions could have been asked without

25 even reference to the statement.

1 JUDGE WALD: Right.

2 MR. KEEGAN: The question could have been asked, "Were you present

3 when a man named --"

4 JUDGE WALD: Right. Even though you hadn't cover that.

5 MR. KEEGAN: Correct.

6 JUDGE WALD: Yes. Okay.

7 MR. KEEGAN: The problem with the statement, as I'm sure you're

8 all aware now with our experiences here, is that the quality of statements

9 depend on the translation --

10 JUDGE WALD: Of course.

11 MR. KEEGAN: -- the state of the mind of the witness at the time.

12 There's a myriad of matters that are relevant which you really need to go

13 into if you're using the actual statement.

14 JUDGE WALD: Right. Now, let me just follow my last question

15 here, and then I think we may have agreement here as to what the Rule

16 means.

17 Somebody asks a question directly on cross to the witness about

18 something that wasn't testified to on direct and says, "Were you present

19 at X incident?" The witness says no. The statement that the

20 cross-examiner has clearly shows that, at least as far as the statement.

21 Can he then introduce the statement to impugn the no answer, in your

22 view?

23 MR. KEEGAN: Whether or not he could introduce the statement is --

24 JUDGE WALD: I'm asking you your view on that.

25 MR. KEEGAN: Right. As far as I understand the Rules applied

1 here, the statement, no. I would certainly submit that at that point

2 questions could be made with reference. "Did you give a statement?" "Do

3 you recall in that statement indicating you were present?" "Do you have

4 any memory of that?"

5 JUDGE WALD: Okay.

6 MR. KEEGAN: But again, the problem becomes it's just the actual

7 use of the statement.

8 JUDGE WALD: I know. I understand.

9 MR. KEEGAN: So we have no --

10 JUDGE WALD: The problem with questioning that fits under Rule

11 89(H), it's only with the introduction of the statement without having

12 laid the foundation in the question.

13 MR. KEEGAN: Yes, Your Honour.

14 JUDGE WALD: Thank you.

15 JUDGE RODRIGUES: [Interpretation] Mr. Keegan, I too have a

16 question. I don't know if you were here when we were discussing the issue

17 of preliminary statements, but the general idea of the decision that was

18 subsequently taken was that, according to what you have said, a witness

19 gave a number of statements and the statements are important for the party

20 calling the evidence. In the end, what is really significant is actually

21 what the witness says here. And the rights of the accused to have the

22 witness cross-examined must be guaranteed here, in the courtroom. So we

23 can use the previous statements to test the credibility of the witness, to

24 call into question certain incompatibilities of information.

25 But the reason for our decision had something to do with the way

1 it was presented to us by the Prosecutor. The Prosecutor wanted to have

2 the statements admitted and then call the witness. The Defence had a

3 different position. Now they want to tender those statements into

4 evidence, and we have somehow organised ourselves according to that

5 setting. The Defence can use the statement in order to verify the

6 credibility of the witness or point to certain inconsistencies, but it is

7 not allowed to tender into evidence the whole, the entire, statement.

8 What counts here is what is being said in the courtroom.

9 The other day, you said, and you have repeated that today, that it

10 is not admissible to conclude as to a potential lie of the witness, but we

11 are all in the position to judge the validity of the statement. Do you

12 agree with this kind of approach by the Chamber: When we asked you to go

13 to the essential part of the information, we knew the reasons for it.

14 There is a vast amount of information, not all of which is necessary

15 either for you or for us. So it is perfectly normal that the statement

16 should contain something that the witness did not say here in the

17 courtroom. So if the idea is to repeat only what was already said in the

18 statement, then maybe, yes, we have to have a look at it. If the Defence

19 wants the witness to repeat everything that he said in the statement,

20 then, no. The initial attitude, then, of the Prosecutor seems to have

21 been logical for me. We could have had, then, those statements admitted

22 right away and the witness could have confirmed, under oath, that those

23 were his statements.

24 I apologise for taking too much time to explain my point. But I

25 should like to hear you once again on this, Mr. Keegan.

1 MR. KEEGAN: Yes, Your Honour.

2 THE INTERPRETER: Microphone for the counsel, please.

3 MR. KEEGAN: Yes, Your Honour. We, of course, have no difficulty

4 accepting that position. Again, the approach to the use of the statements

5 is simply for us, one, of practicality. It's our position that, first, a

6 foundation should be properly laid. So the initial question is: "Do you

7 remember such an event?" If the witness here says no, then our position

8 is that it's not proper at that point for the counsel to then read a

9 witness' statement, or only part of it; but rather to then say, "Did you

10 make a statement?" "In that statement, did you say you did know about

11 this?" And then if the witness continues to say they don't, then a

12 further exploration.

13 But the point for us that's relevant, and I think all parties

14 respect and understand this, is that many of these statements are taken

15 under many different situations and they are not always completely

16 accurate, which is why the statements aren't introduced directly. Again,

17 the Prosecution's position was, we were going to create summaries of the

18 background, not actually submit the statements, and then go directly to

19 the substance of the allegations with witness testimonies. It was never

20 our position to actually admit the original statement. We were going to

21 excerpt out background information, and I believe actually Mr. Fila was

22 the one who suggested that perhaps we just issue the statements, offer the

23 statements since the information is already there, because I believe that

24 was done in one other case.

25 But our position, again to be clear, is not that we object to any

1 right of the accused, of course, to conduct a valid examination or,

2 indeed, to even challenge a witness based on inconsistent information from

3 the statement. Our only position was, given past practice, we didn't want

4 to be then limited in our ability to, what we would in my system refer to

5 as, rehabilitate the witness, and that was the Prosecution's only concern

6 in this whole matter. It was how they were being used as opposed to the

7 substance of the Defence's attempt in the examination.

8 JUDGE RODRIGUES: [Interpretation] Mr. O'Sullivan, I see you wish

9 to intervene. You have the floor.

10 MR. O'SULLIVAN: Thank you, Your Honour. I should like to address

11 both the issue of the scope of cross-examination and re-examination.

12 First, cross-examination. Let me make three points, first by

13 referring to Rule 90(H), and I'll use the hypothesis in question proposed

14 by Judge Wald. I'd also refer to the Chamber's ruling earlier on the use

15 of statements during cross-examination.

16 I submit that the interpretation Judge Wald has put on 98 is the

17 correct one; that is, using her hypothesis, if there's an event described

18 in a statement which is not elicited during the examination-in-chief

19 through questioning, it's appropriate for a party to ask the witness, "Did

20 you see event X?" Now, if the person agrees, you've got your answer. If

21 the person says no, then I submit that statement can be put to the

22 witness, laying the foundation, as we said. "Did you make a statement on

23 such and such a date," going through all that. And then reading that line

24 or passage to the witness. That coincides with Your Honours' ruling of

25 using a statement during cross-examination by reading into the record the

1 part you say is relevant or goes to credibility or goes to a matter

2 directly affecting examination-in-chief.

3 Now, on the issue of re-examination, there is no express Rule in

4 our Rules governing. I referred yesterday to a decision from the

5 Kupreskic case, which, I submit, is good law. The general thrust of

6 re-examination is limited to matters arising out of cross-examination.

7 Now, if a statement is used during cross-examination, that one portion,

8 well, then, the other party can then refer to that one portion of the

9 statement if they wish to explore it further by using that statement. But

10 by virtue of the fact of referring to a statement, that does not open the

11 door to the re-examining party to go through the whole statement with that

12 witness. So re-examination is limited in scope to matters raised and

13 discussed during cross-examination.

14 That is our position on those two matters, Your Honour.

15 JUDGE RODRIGUES: [Interpretation] I don't know if any other

16 Defence counsel wish to speak before I give the floor to the Prosecutor

17 once again.

18 Mr. Fila.

19 MR. FILA: [Interpretation] Mr. President, if I understand

20 Mr. Keegan correctly, he is seeking equality, and there I completely agree

21 with him, we must all be on a footing of equality. It is up to the

22 Chamber to find a way of enabling us to be equal. If the Prosecutor does

23 not have more rights, then I don't want more rights, and you know where

24 one's rights end and other people's rights begin. So my rights extend to

25 my nose; farther on, it is up to you to decide.

1 Let me also say that with respect to Mr. Keegan's proposal, we

2 discussed the process of identification itself, and perhaps we ought to

3 discuss that question. In that context, we could also discuss another

4 variant whereby the witness could be allowed to stand and take a look,

5 because he seems to be restricted with the headsets and microphones and

6 everything else. So perhaps he could be allowed to get up and move

7 forward into the courtroom.

8 Thank you, Your Honour. That is all I had to say.

9 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Fila. You have

10 raised an important question, indeed. I had it in mind as well. I wanted

11 to have an accurate and uniform interpretation of the Rules in respect of

12 that matter. If the Rule is flexible, it is flexible for both parties; if

13 it is strict, it is so for both parties as well. But we know that there

14 are certain mechanisms of intervention where more light can be shed on the

15 truth. Be that as it may, it is true that at certain points of the

16 procedure, we are closer to that idea. I think that was a very useful

17 point, Mr. Fila.

18 Mr. Stojanovic, before I give the floor back to Mr. Keegan. But

19 let me remind you that it is almost half past five.

20 MR. STOJANOVIC: [Interpretation] Thank you. The problem is very

21 complex and would require extensive discussion, so let me just say a few

22 basics.

23 As I said, the problem is very complex. Starting with

24 credibility, we can raise the question of whether the witness of the

25 Prosecution is credible if he says something that is contrary to these

1 statements or the indictment.

2 Let me be pragmatic. My client was not able to give me

3 information about a killing for which he was charged. I received that

4 information from a statement presented to me by the Prosecution. Then

5 what is a statement for? Is that statement -- I don't know what use it is

6 if I cannot use that statement, or perhaps that statement leads me astray,

7 which once again cannot be considered to be fair.

8 So in accepting everything that has been said and been given to me

9 by the Prosecution - there was no misunderstanding there - I wanted to

10 hear from the witness himself, to hear him speak on the information I

11 received through the statement tendered to me by the Prosecution. The

12 witness said that he knew about the whole event, and it refers to the

13 killing from the indictment, and that's where we stopped.

14 I do not wish to blame anybody. As I say, it is a very complex

15 problem, and of course there can be many different views in the matter. I

16 do agree with you, Your Honour, that we're all learning here, and I myself

17 can say that I have been learning a lot and I wish to learn more. So I

18 have just aired my views, and in the interests of justice, I think that

19 this should be allowed. I don't think that Mr. Keegan has any matters of

20 principle. I don't think that if I am asking about something that is

21 included in the statement, without referring to the statement, of course,

22 but if the statement were to say something other than was stated in the

23 statement, then I would ask that witness whether he had, perhaps, said

24 something different on another occasion. So in principle, I don't like

25 any formalised theories of evidence and proof.

1 JUDGE RODRIGUES: [Interpretation] Is there any other Defence

2 counsel that wishes to comment further on the issue?

3 Mr. Keegan, you have the floor to finish this discussion. I saw

4 that you were about to say something.

5 MR. KEEGAN: Yes, Your Honour, and I will be very brief, mindful

6 of the time.

7 The last point raised by Mr. O'Sullivan, and in fact somewhat also

8 addressed by Mr. Stojanovic, is this: If, in fact, a statement is being

9 used to try and impeach the credibility of the witness and that perhaps

10 within the statement they have something that is inconsistent with other

11 evidence that the Chamber may have, that is, that they're wrong about

12 something, or perhaps the implication being that their credibility is in

13 doubt, in fact it would be proper, I submit, to be able to submit the rest

14 of the statement or large portions of it to show where they are entirely

15 consistent and truthful, because it's always possible for a person to

16 perceive one event incorrectly but be absolutely accurate on everything

17 else. I think it would be, again, contrary to the interests of justice to

18 try and hang some very technical and specific definition of what

19 rehabilitation or redirect are about, because if the implications from

20 cross-examination are that the witness is not credible and should not be

21 believed, any information that addresses that would, in my submission, be

22 relevant.

23 Because we all come from many different systems, I wanted to

24 address the position to make sure that both the other counsel and the

25 Chamber understood at least what the Prosecution viewed as its rights,

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1 then, in this instance if cross-examination is going to be conducted that

2 way. That was our only point. We don't object, as I said, to the right

3 of an accused to fully address relevant matters on cross, but we think

4 that the Prosecution should then be given equal rights, as Mr. Fila

5 indicated, to redress those same issues. Thank you.

6 JUDGE RODRIGUES: [Interpretation] I hope that we are somewhat more

7 enlightened than before. I wanted to express an opinion here and share it

8 with the parties. We actually dreamed of having a very practical

9 mechanism here. We have a document here, but we sometimes hesitate when

10 it comes to the distribution of the document. But I think that it can be

11 a useful and more explanatory reference when it comes to this issue, and I

12 believe that it will take us forward.

13 We have exchanged a number of significant ideas, and some of them,

14 I believe, have been clarified and will help us in our future

15 proceedings. The Chamber is a tribunal here, it represents the finder of

16 fact, and it is difficult for us to give guidance and issue instructions

17 without specific examples. But we will see about that.

18 It is half past five, and I think we should call it a day and come

19 back tomorrow at half past nine. Perhaps tomorrow, or maybe on Monday, we

20 will render the oral decisions on the matters that have been raised

21 today. Yes, I'm sorry, on Tuesday. We're not sitting on Monday. But we

22 will do our best and try to render the necessary rulings as soon as

23 possible so that the issues are not left hanging in the air.

24 Tomorrow, half past nine.

25 --- Whereupon the Status Conference adjourned at 5.35 p.m.