1 Wednesday, 9 July 2008
2 [Open session]
3 [Pre-Trial Conference]
4 [The accused entered court]
5 --- Upon commencing at 9.00 a.m.
6 JUDGE ROBINSON: Will the registrar please call the case.
7 THE REGISTRAR: Good morning, Your Honours. Good morning,
8 everybody in the courtroom. This is case number IT-98-32/1-PT, the
9 Prosecutor versus Milan
10 JUDGE ROBINSON: Appearances, please.
11 MR. GROOME: Good morning, Your Honours. For the Prosecution I
12 am Dermot Groome, I am accompanied by Frederic Ossogo, Adam Weber and our
13 case manager today is Sebastian van Hooydonk and we are also assisted by
14 an intern by the name of Solmaz Firoz.
15 JUDGE ROBINSON: And for the Defence of Milan Lukic?
16 MR. ALARID: Good morning, Your Honours, Jason Alarid appearing
17 on behalf of Mr. Milan Lukic who is present in Court. I am also present
18 by legal assistant, Maria O'Leary, my case manager, Vladimir Rasic, and
19 another legal assistant, Mihailo Lakcevic.
20 JUDGE ROBINSON: You're very well resourced, Mr. Alarid.
21 MR. ALARID: I think so, thank you, sir.
22 JUDGE ROBINSON: And for the accused Sredoje Lukic.
23 MR. CEPIC: Good morning, Your Honour. Good morning, Your
24 Honours. I'm Djuro Cepic, Defence counsel for Mr. Sredoje Lukic
25 appearing with me on my left-hand side my learned friend,
1 Mr. Jens Dieckmann, as a co-counsel, behind us on my left-hand side is
2 our legal assistant Ms. Christina Kerll, behind me is our case manager
3 Ms. Sladjana Marjanovic.
4 JUDGE ROBINSON: Thank you. We have a busy day ahead of us. We
5 are going to begin with the Pre-Trial Conference. Then there will be a
6 break. Thereafter will follow the opening statements and, if possible,
7 the calling of witnesses. On my list I have several issues to deal with
8 and I begin with the disclosure and translation matters. During the
9 status conference on the 12th of June, the Prosecution informed the
10 Chamber that translations for a number of documents were still pending.
11 May I ask, Mr. Groome, what is the status in relation to these
13 MR. GROOME: Your Honour, all translations now have been provided
14 to the Defence.
15 JUDGE ROBINSON: Yes, and since you're on your feet you may as
16 well answer this question. It relates to the photograph spreadsheets
17 that could not be located.
18 MR. GROOME: Your Honour, as I've stated in prior occasions, the
19 Prosecution cannot find those spreadsheets -- those photo spreads. There
20 is nothing has changed since the last time I reported that to the
22 JUDGE ROBINSON: What's the consequence of that?
23 MR. GROOME: Well, Your Honour, there are many of the photo
24 spreads have been disclosed with respect to particular witnesses. I
25 recognise to the extent that witnesses are called and the Prosecution is
1 unable to produce the photo spreads that they were shown, that is going
2 to be a matter for the Chamber to consider in assessing the credibility
3 and the reliability of that witness. It is not all witnesses, Your
4 Honour. It is some witnesses that are shown several photo spreads and
5 those photo spreads cannot be located now.
6 JUDGE ROBINSON: Mr. Alarid, did you want to say something?
7 MR. ALARID: No, sir.
8 JUDGE ROBINSON: Any other disclosure matters to be raised by
9 either party? If not, I move to agreed facts. I understand that
10 negotiations are still ongoing and I'd like to find out the status of
11 those negotiations.
12 Mr. Groome and then Mr. Alarid.
13 MR. GROOME: Your Honour, Mr. Ossogo has been taking personal
14 charge of this aspect of the case, and I'd ask him to address the
16 JUDGE ROBINSON: Yes.
17 MR. OSSOGO: [Interpretation] Your Honour, before we reported
18 before you on February 29th, 2008, the -- what we said to the Defence as
19 regards the possibility of agreeing on a number of facts, we have not
20 received a response from the Defence. We know, however, that they have
21 only admitted four of the facts amongst the 79, and they have indicated
22 that after they completed their investigations, in particular as regards
23 a number of witnesses, they may contact us again. So we have not
24 received any counterproposal on the part of the Defence in order to be
25 able to continue these negotiations. That is the present state of
1 affairs as regards our negotiations. Thank you, Your Honour.
2 JUDGE ROBINSON: Thank you. Mr. Alarid?
3 MR. ALARID: Yes, Your Honour, we are still in [Microphone not
5 THE INTERPRETER: Microphone, please.
6 MR. ALARID: I apologise. Your Honour, we are still in the
7 preliminary stages of investigation still. We've opened an office. We
8 do have a good team in place but as the depth of the trial are kind of
9 still in the distant forest we are really focusing on what's going to
10 start with in the next three days and the continued investigations and
11 our obligations for alibi witnesses and even just exculpatory evidence in
12 general. We will attempt to -- I can see as I'm going through the facts,
13 going through the Vasiljevic transcripts, there are some facts that we
14 would be willing to agree on but I'm not in a position at the point of
15 opening to make those agreements at this juncture.
16 JUDGE ROBINSON: Mr. Alarid, it's a little late to be in a
17 preliminary stage of the trial starting today.
18 MR. ALARID: I agree with that, and that has been the difficult
19 point of the situation as a total; and I know there has been problems
20 with counsel, those problems with counsel have transcended my entry into
21 this case. As you know, I only came in as co-counsel in -- and was
22 appointed March 10th. I was appointed lead counsel, and I've only been
23 lead counsel for three months. My staff has only been in place for a few
24 weeks and that is the truth of my preparation. I can't --
25 JUDGE ROBINSON: Well, thank you, Mr. Alarid. I warned you,
1 however, to move ahead with your work.
2 MR. ALARID: And we have been, Judge. I'm as ready as I can be
3 to proceed forward today. It's not a matter of lack of diligence. It's
4 simply a matter of the resources available at the time. For instance,
5 Your Honour, our investigator still is not been appointed even though we
6 requested him mid-June and so those are the kind of little things but
7 they are big things when we have been racing to trial in such a manner.
8 JUDGE ROBINSON: Why has your investigator not been appointed?
9 MR. ALARID: It's still with the Registry, Your Honour.
10 [Trial Chamber confers]
11 JUDGE ROBINSON: Mr. Alarid, that's a very serious matter, and
12 I'm going to ask the court deputy to bring to the attention of the
13 registrar the failure of the Registry to appoint an investigator for the
14 Defence. It goes to the question of equality of arms and the registry
15 should see that the investigator is appointed as soon as possible so that
16 the Defence can proceed with its investigations. This is normal, and it
17 should be done.
18 [Trial chamber and legal officer confer]
19 THE INTERPRETER: Could counsel please speak into his microphone
20 when he takes the floor? Thank you.
21 JUDGE ROBINSON: Yes. I now understand that the matter is in
22 hand and that the Registry is, in fact, proceeding with its own
23 investigations in relation to the candidate, so I expect that that will
24 be dealt with shortly. If it is not, then please bring it to our
1 MR. ALARID: I will, sir, thank you.
2 JUDGE ROBINSON: [Microphone not activated]
3 MR. GROOME: Your Honour, your microphone.
4 JUDGE ROBINSON: I'll say that again. The Prosecution filed a
5 motion on adjudicated facts, both accused persons have objected to the
6 motion, and the Trial Chamber will give its decision in due course.
7 In the motions that have been filed since the last Status
8 Conference, the Defence has consistently -- that's the Defence for
9 Milan Lukic, has consistently requested the Trial Chamber to reconsider
10 the date for the start of trial. Insofar as that is a formal request, I
11 have to say that the Chamber is not at all convinced by the submissions
12 of the Defence and will not reconsider the date for the start of trial.
13 I move next to the question of alibi rebuttal witnesses. The
14 Prosecution has indicated that it intends to call four witnesses to rebut
15 alibi evidence to be led during the Defence case. Following the case law
16 of the Tribunal, these witnesses are to be called during the
17 Prosecution's case in chief.
18 I turn next to the issue of the time for the Prosecution case.
19 The Chamber notes that the Prosecution intends to present the evidence of
20 50 witnesses during an estimated 69 hours of examination-in-chief. On
21 that matter, I make the following comments: First, the Prosecution
22 estimates one hour for examination-in-chief for the witnesses it intends
23 to call pursuant to Rule 92 ter, but in accordance with the Tribunal
24 practice, 30 minutes will be allowed by the Chamber for these witnesses.
25 If the Prosecution requires more time, then it must make an application
1 to do so.
2 MR. GROOME: Your Honour, may I address the Chamber on that
4 JUDGE ROBINSON: Yes.
5 MR. GROOME: Your Honour, this case is somewhat different than
6 other cases that are before the Tribunal, in that here we have the direct
7 perpetrators of the crimes so in many cases these witnesses, they will be
8 speaking about their observations of the two accused, what the accused
9 did, which is very different than many of the other cases before the
10 Tribunal where that is not the case.
11 The Prosecution put forward its motions for 92 ter because we
12 think that there is great benefit in leading in written form evidence of
13 those witnesses with respect to background information and if that's not
14 directly related to the accused but so much of their evidence is going to
15 be directly related to their observations of the two accused and what
16 they did and their ability to recognise them, that I don't believe that
17 we can do that in 30 minutes. I'm mindful the Chamber's concern of
18 running the case as efficiently as possible, but I don't believe I can
19 adequately lead evidence directly related to the accused in a blanket
20 ruling of 30 minutes. And that's why I, in our filings, had estimated
21 the time that would take to lead the evidence with respect to those
22 witnesses would be an hour. I think we would be able to do it within an
23 hour and use the 92 ter written evidence to deal with all the other
24 evidence not directly related to the accused.
25 JUDGE ROBINSON: Well, let us see how we will get on, Mr. Groome,
1 as the case develops. If it is necessary the Chamber will hear an
2 application for more time.
3 The second matter that I wish to raise is that in its filing of
4 the 11th of April, on the 25th of April, the Prosecution limited the
5 evidence of a number of witnesses, five of whom are still included on the
6 witness list, to the matter of alibi rebuttal only. However the
7 summaries of these witnesses indicated that they are also expected to
8 address other matters. The Chamber expects the Prosecution to streamline
9 the evidence of these witnesses so that their testimony is confined to
10 alibi, thereby reducing the time for examination-in-chief, and I'm to say
11 that in principle their evidence should not exceed one hour of
12 examination-in-chief. We have also found examples of cumulative
14 The Prosecution intends to provide evidence of 15 witnesses
15 addressing the Bikavac incident. 12 of them are to provide their
16 evidence in court, including three witnesses who will provide evidence in
17 rebuttal of the alibi defence. Again, the Trial Chamber expects the
18 Prosecution to streamline the evidence of these witnesses so as to
19 minimise any accumulation of evidence. 20 witnesses are to testify on
20 both acts charged in the indictment, as well as acts not explicitly
21 charged. This is so-called background evidence. Of those 20 witnesses,
22 nine are to testify exclusively in relation to acts not charged in the
24 Now, the language used in the indictment with respect to the
25 crime of persecutions shows that the crimes with which the accused are
1 charged are those that have been described explicitly in the indictment.
2 The Trial Chamber takes the view that paragraph 4 of the indictment lists
3 the underlying persecutory acts exhaustively, consequently no finding of
4 guilt will be made against the accused for crimes constituting
5 persecutory acts not explicitly listed in the paragraph -- in that
6 paragraph. It is true that evidence regarding non-indicted crimes may be
7 relevant to a number of issues, for example the existence of an armed
8 conflict, the question of a widespread and systematic attack on a
9 civilian population and possibly the issue of discriminatory intents on
10 the parts of the accused, but it does not appear to the Trial Chamber
11 necessary that so many witnesses are called to testify exclusively on
12 these non-indicted crimes. Their evidence will be cumulative to the
13 evidence presented by witnesses called to give evidence regarding the
14 crimes described in the indictment. The Trial Chamber will therefore
15 only allow three of these witnesses to testify.
16 The Prosecution will be allowed to present the evidence of 45
17 witnesses. Bearing in mind the possibilities for reduction of
18 examination-in-chief that I have just mentioned, it is in the interests
19 of justice that the Prosecution present its evidence within 60 hours.
20 This amount of time reflects the time available for examination-in-chief
21 of the witnesses. Generally each accused will be allowed 60 per cent of
22 the time for examination-in-chief for its cross-examination, but
23 applications may be made for an extension of that time. Allowing some
24 time for procedural and administrative matters, the Prosecution case is
25 expected to conclude on Thursday, the 9th of October.
1 I turn next to pending motions. We have a number of motions, and
2 the decision on those motions will be given in a timely manner. There
3 is, however, one motion that I'd like to mention. It is the
4 Prosecution's sixth motion for protective measures filed on the 27th of
5 July. We could dispose of this matter, Mr. Alarid. We are awaiting a
6 response from Milan Lukic. It is due on the 11th of July, but if you are
7 in a position now or later today to let us know what your position is, it
8 could be disposed of. The Defence of Sredoje Lukic has notified the
9 Chamber that it will not respond.
10 MR. ALARID: We would not be objecting to the protective
11 measures, Your Honour.
12 JUDGE ROBINSON: Thank you. On the 65 ter witness list, the
13 Prosecution has listed a number of witnesses with their full name as well
14 as a pseudonym, but no protective measures have been granted to these
15 witnesses, so I have to ask the Prosecution to clarify whether it intends
16 to apply for those measures.
17 MR. GROOME: Your Honour, it would depend upon the specific
18 witness, if I could have an opportunity to review the witnesses that the
19 Chamber specifically referring to, I would be in a position later on
20 today to address the Chamber on which of those witnesses we will be
21 applying for protective measures. There is a motion that we are filing
22 later on today, I'm just reviewing a draft this morning, where we will be
23 seeking protective measures for several additional witnesses, perhaps
24 that will resolve the question that the Chamber is posing.
25 JUDGE ROBINSON: Yes, well, it may very well do that. Thanks.
1 In light of the many changes to the witness list, the Trial
2 Chamber will order the Prosecution to file a new and comprehensive
3 witness list in accordance with the Trial Chamber's decisions on the
4 list. The list is to contain the full names of the witnesses, with the
5 correct spelling. Insofar as witnesses are seeking or have been granted
6 protective measures, this information is to be included in the witness
7 list, including the exact date that such measures were sought or granted.
8 The parties are to provide a list of witnesses every Thursday,
9 and the Chamber will issue a more detailed order in relation to this
11 I want to deal with the notice required in relation to alibi
12 witnesses. This is a matter that concerns you, Mr. Alarid. Rule 67
13 provides that the Defence must notify the Prosecutor of its intent to
14 offer the defence of alibi. If it does, the notification must specify
15 the place or places at which the accused claims to have been present at
16 the time of the alleged crime and the names and addresses of witnesses
17 and any other evidence upon which the accused intends to rely to
18 establish the alibi.
19 The Prosecution has for some time now been complaining that you
20 have not provided sufficient notice and, indeed, the Pre-Trial Judge has
21 ordered that more specific information be provided. I'm now going to
22 order that the Defence of Milan Lukic provide, by the 18th of July,
23 that's next week Friday, the following information: The place or places
24 at which the accused claims to have been present at the time of the
25 alleged crime, that's the first thing; secondly, the names and addresses
1 of witnesses, that is to say the witnesses whom you intend to call to
2 substantiate the alibi; and thirdly, any other evidence on which you're
3 going to rely to substantiate the alibi. And you are to do this in
4 relation to the following incidents: The Drina River incident the 7th of
5 June 1992; the Varda factory incident of the 10th of June 1992; the
6 Pionirska Street incident, the 14th and 15th of June 1992; the Bikavac
7 incident, the 27th of June 1992; the Uzamnica barracks incident, August
8 1992 to October 1994; and you're also to provide notice in relation to
9 Mokra Gora. You are to say how that exhibit relates to alibi in relation
10 to the individual incidents alleged in the indictment and also to
11 identify any witnesses that you intend to call in this respect.
12 This is a requirement of the rules. And it is therefore a very
13 good reason. If it is not provided, adverse consequences may flow from
14 that. Mr. Groome, you're on your feet?
15 MR. GROOME: Yes, Your Honour, there are several matters related
16 to alibi which I must raise with the Chamber. Firstly some of the
17 reasons why the rule is there is not only to give the Prosecution an
18 adequate opportunity to investigate the alibi, but it's also to put the
19 accused on record as to where he is. The Chamber now has ordered that he
20 must provide alibi by notice by July 18th but that puts me in the
21 position now of opening and actually calling a witness to the Drina River
22 incident and giving Mr. Lukic an opportunity hear this testimony,
23 cross-examine this testimony and then after the fact fashion an alibi as
24 to where he was that best conforms to what he believes the Chamber will
25 find credible about this witness. I believe that is manifestly unfair to
1 the Prosecution, and I'm going to request at the very least that the
2 Chamber before I give the opening, ask Mr. Alarid to go into the back
3 with Mr. Lukic and at least with respect to the Drina River
4 stage he must -- he must know where he was, he must know the name of the
5 person who he says he's was with. He's identified him as a Muslim person
6 who he knows.
7 So I'm asking the Court to require him, before I open, before the
8 first witness of the Drina River
9 on the record where he was, the name of the witness and as much of the
10 information that he has with respect to the witness's address that he
11 has. So at least there is some memorialization of what his case is prior
12 to the taking of evidence.
13 Your Honour, I also wants to address the Chamber with respect to
14 the timing of alibi witnesses. In the conferences we have been told that
15 there are about 50 alibi witnesses that the Defence of Milan Lukic
16 intends to call. The Chamber has just issued an order that all of the
17 alibi evidence must be called by the Prosecution during its direct case
18 and that direct case will be limited to four alibi witnesses and the case
19 will conclude on October 9th. That means that the Prosecution must
20 investigate in excess of the total number of witnesses now the
21 Prosecution is going to be allowed to call in its case in chief,
22 investigate those witnesses and somehow come up with whatever rebuttal
23 prior to the close of our case on October 9th.
24 THE INTERPRETER: Mr. Groome is kindly asked to slow down for the
25 translation, thank you.
1 MR. GROOME: I apologise. I also suggest that that is manifestly
2 unfair. If we are to arrive at the truth at the conclusion of this trial
3 the Prosecution must have a fair opportunity to investigate this alibi
4 thoroughly, the first step is to have adequate notice of it and then
5 the -- is the ability to investigate it and then to call witnesses in
6 rebuttal. The Chamber referred to other cases in the Tribunal with
7 respect to its position that all of the alibi evidence should be called
8 in the Prosecution chief. The one case that I am familiar with, the
9 Vasiljevic case, in which alibi was the central issue, that was not the
10 case, Your Honour. In fact the Prosecution called was permitted to call
11 a significant number of witnesses in rebuttal after it heard the Defence
12 witnesses, and I would suggest to the Court that requiring the
13 Prosecution to call all of its alibi witnesses prior to the calling of
14 the Defence witnesses testifying to alibi puts us in the impossible
15 position of trying to guess at what those witnesses are going to say,
16 attempting to rebut it before it's made and then also gives those
17 witnesses the absolutely unfair advantage of being able to digest all
18 that the Prosecution witnesses have said, identify the gaps in those --
19 that rebuttal evidence and then craft an alibi testimony that fits neatly
20 within that and I believe that is not going to result in a truthful or
21 accurate fact-finding process and is unfair to the Prosecution.
22 JUDGE ROBINSON: The Chamber's decision was actually based on the
23 decision of the Appeals Chamber in Delalic et al where it set the
24 standard for rebuttal evidence. In that case, the Appeals Chamber found
25 that evidence going to a fundamental part of the Prosecution case must be
1 led during the Prosecution's case in chief. And the presence of the
2 accused during the incidents in relation to which a notice of defence of
3 alibi has been entered is a fundamental aspect of the Prosecution's case.
4 [Trial Chamber confers]
5 JUDGE ROBINSON: Mr. Alarid, two matters. First, in relation to
6 the witness, the specific witness, to which the Prosecutor made
7 reference, you would be in a position, would you, to provide the name of
8 that witness?
9 MR. ALARID: Your Honour, I believe we've done better than that
10 and that's why I'm sort of confused at the continuing request of the
11 Prosecution at this point. In a formal pleading, we did not summarise
12 the statements, instead we got notarised statements in Serbian and
13 actually had them translate by my case manager to the best of his ability
14 into English, and we provided both those statements along with the
15 unredacted names.
16 Of course, the statements themselves put the alibi witnesses and
17 Milan Lukic in a place in time so that -- that's why I'm confused as to
18 what specificity do I need to when the statement itself is the best
19 evidence of the information. It is the witness. For Mr. Groome to ask
20 me to go talk to my client and have him disclose these things is
21 basically an affront to an accused's right against testifying against
22 himself because essentially my statements before the Court become my
23 client's testimony before the Tribunal. Instead, we provided the actual
24 witness statements which were notarised and attested to, and I think they
25 are very clear in terms of the time, place and circumstances of their
1 contact with Mr. Milan Lukic in relation to the times of the allegations.
2 I'm really confused as to the reference to Mokra Gora because I had to go
3 back and look at our statements and see if one of the witnesses placed
4 him at Mokra Gora, which I understand is a mountain or a hill top near
5 Visegrad, and we could not find any reference to it so we are not sure if
6 this is just some confusion on the part of the Prosecution, but I didn't
7 find in my materials reference to Mokra Gora.
8 JUDGE ROBINSON: The legal officer?
9 [Trial chamber and legal officer confer]
10 JUDGE ROBINSON: Mr. Groome, as I understand it, Mr. Alarid says
11 he transmitted to you statements from persons and these statements
12 contain all the relevant information that you require.
13 MR. GROOME: Your Honour, I think we are confusing two issues
14 here. The confusing disclosure and notification.
15 JUDGE ROBINSON: Please sit, Mr. Alarid, one person on his feet
16 at a time.
17 MR. GROOME: Rule 67 talks in very explicit terms about the
18 notification which the Prosecution is entitled to. Yes, on Monday, this
19 past Monday, Mr. Alarid transmitted several statements. I would note
20 that none of those statements, none of those statements, deal with the
21 Drina River
22 where Mr. Milan Lukic says he was and who he was with with respect to the
23 Drina River
24 JUDGE ROBINSON: Never mind that. Are you saying, Mr. Alarid,
25 that the Prosecution is in possession of statements which you have
1 transmitted to them, never mind when you transmitted it, whether, under
2 67 or some other rule, are you saying that they have statements which
3 provide this information? Because I'm looking at the substance.
4 MR. ALARID: Yes, Your Honour, we have --
5 JUDGE ROBINSON: If so, well, please identify the date when you
6 supplied that, and they will us what it relates to.
7 MR. ALARID: Your Honour we supplied four statements actually
8 approximately three weeks ago and those were the first four we submitted
9 them as soon as we got them. I believe at least one of those statements
10 did cover the Drina
11 JUDGE ROBINSON: You believe?
12 MR. ALARID: Well, I don't have the statements in front of me,
13 Judge, so in terms of the actual issues, in terms of that, I felt that
14 they covered that week in general of June 7th. Other than that, Your
15 Honour, we've been providing our statements when we have been getting
16 Mr. Rasic and Mr. Lakcevic have been in Bosnia meeting with witnesses.
17 In reference to the 50 names that Mr. Groome ultimately referenced to,
18 those were the 50 names we had achieved with meetings with the client so
19 this still needed follow-up due diligence which we are in the midst of.
20 I can't underscore enough how difficult it is to be preparing a defence
21 when the attorney for multiple murder case has been on board for four
22 months and regardless of Mr. Yatvin's participation, his was primarily 11
23 bis proceedings and then the attorney-client relationship broke down
24 really for a year going on a year and a half. Then when Mr. Sulejic was
25 appointed, quickly as I got in the relationship broke down; and I think
1 the Trial Chamber is aware of the circumstances and that again provided
2 difficulty because of course an attorney should be present during
3 statements of any witness. And that's where Mr. Lakcevic came in, and
4 we've had him working on it very diligently; but I can't underscore
5 enough that I haven't even interviewed these people personally to
6 basically give the follow-up, I guess, due diligence if you will for the
7 Court's benefit. We are really running as fast as we can. I think we
8 are an at an extreme disadvantage. If the Prosecution claim they are in
9 disadvantage it is only because as we exercise our due process rights we
10 are way behind in this matter and I just don't know --
11 JUDGE ROBINSON: I'm going to give you an opportunity to show to
12 the Court the statements that you say were provided to the Prosecution.
13 MR. ALARID: Yes, sir.
14 JUDGE ROBINSON: Which covers the Drina River
15 [Trial Chamber confers]
16 JUDGE ROBINSON: Mr. Alarid, I mentioned earlier that you appear
17 to be well resourced, so have one of your assistants start investigating
18 this matter so that by the time we break, you will be in a position to
19 provide the Court with those statements.
20 MR. ALARID: Judge, just in speaking with Ms. O'Leary as you were
21 conferring with the Chamber, we would be able to do that. We've e-mailed
22 them in PDF format to the Prosecution, as a matter of fact with a note
23 passed to me the two that were delivered actually on Monday deal with the
25 not a problem.
1 JUDGE ROBINSON: Yes. Now, Mr. Groome also raised the question
2 of the time to call the alibi rebuttal witnesses and his submission is
3 that these witnesses should more properly be called after the Defence has
4 presented its case of alibi. I cited an Appeals Chamber decision in
5 Delalic, but I'm bound to say that I'm -- Mr. Groome's submission has
6 some logic to support it. Although Delalic deals with the standard for
7 rebuttal evidence, it may be that what Delalic is speaking about is
8 rebuttal as it is set out, I believe, in Rule -- I think it's 85.
9 It seems to me that Rule 67, dealing with alibi defence, is of
10 its own kind. It is sui generis and when it says the Defence must notify
11 the Prosecutor of the alibi and provide specific information, it appears
12 to me to be only logical that the Prosecutor should rebut that evidence,
13 and normally you rebut evidence after it has been presented, not before.
14 And I'm wondering if Delalic that I have cited actually goes to that
15 point. Delalic speaks of evidence going to a fundamental part of the
16 Prosecution case as being evidence that must be led during the
17 Prosecution's case in chief. But this is not a fundamental part of the
18 Prosecution's case. It only arises as a part of the Prosecution's case
19 because the Defence is raising alibi. Otherwise, the Prosecution would
20 not be dealing with this matter at all, and I'm wondering if Delalic can
21 be distinguished in that way. Are you in a position to assist us, first
22 Mr. Alarid and then Mr. Groome.
23 MR. ALARID: I understand your point and I think that the root
24 problem of the situation is problems with counsel, the ability to get on
25 the real meat and bones of the investigation at a late start which in
1 terms of course I understand Mr. Groome's position of disadvantage
2 because he feels that he should have been doing this maybe months ago.
3 And on an order of principle, I agree with him. He should have been
4 doing this months ago.
5 But on the same token, with the Trial Chamber's sort of soft
6 start position and the Prosecution's references to our ability to become
7 prepared as the trial proceeds, I think the same argument goes to them.
8 We are not presenting these alibi witnesses in a vacuum, a name and a
9 place, and then we give them no information. We've given them sworn
10 statements so I don't think it's completely relevant to argue that we are
11 going to be able to fashion our alibi after hearing the testimony because
12 in giving a notarised statement, it does limit the wiggle room a witness
13 might have in addressing those kind of concerns of forming the alibi
14 after the fact. We haven't done that.
15 We are really just giving them the information as soon as we get
16 it because we feel disadvantaged but we understand their need to know
17 alibi early because I do agree with Delalic in that the alibi evidence
18 should be presented during the Prosecution's case in chief, the reason
19 being that they should present all evidence of modus operandi the
20 opportunities to commit the crime; and the opportunity to commit a crime
21 if you're talking about a single day then they should have anticipated
22 that, I think they named the witnesses that can show where Mr. Lukic may
23 have been on that day assuming they can prove that; so we are not talking
24 about an extended period of time. I mean, in terms of one of the alibis,
25 if you just want to go towards the Uzamnica barracks, August 92 to
1 together 1994, we can show Mr. Lukic was in prison during a period of
2 time of that extended range; and so if you think about him being in jail,
3 well, that's easy enough recognition but he doesn't need to not present
4 his evidence in a Prosecution case in chief even if we present him with
5 some prison documents which we are attempting to get interest Belgrade
6 right now if we can present those prison documents he does not need to
7 call his Uzamnica barracks witnesses? I think it's important that the
8 Prosecution's case proceeds because it is in the interests of our case
9 that we just get to the end of this, I don't think delay in this point is
10 going to help anybody. If the Court is forcing us to trial as is we are
11 all in the same boat and should proceed.
12 JUDGE ROBINSON: Yes, we want to do the right thing. Can you
13 distinguish Delalic, Mr. Groome?
14 MR. GROOME: Yes, Your Honour. I think Delalic is talking about
15 a situation where let's say the Defence in the pre-trial brief of the
16 defendant or the accused is that he did not have command responsibility.
17 Well Delalic says okay the Prosecution you knew that prepare that and
18 incorporate that into your -- the presentation of your direct case. Your
19 Honour, at this stage the Prosecution does not even have a proper
20 pre-trial brief from the Defence. It has no pre-trial brief, no alibi
21 Defence, we have -- we are guessing. Case in point. Mr. Alarid has just
22 said that they are looking for jail records with respect to Uzamnica. In
23 all of the filings that have been made related to alibi, as far as I
24 could decipher, there has never been an alibi raised with respect to
25 Uzamnica. Just the other instances which the Chamber has mentioned
1 earlier today. So this is the first time now that I am hearing that an
2 alibi Defence is going to be raised to the last set of charges on the
4 In terms of a logical, just pure logic, Your Honour, if I were --
5 I have to prove a negative with the alibi. Witnesses will come, will
6 give sworn evidence about seeing these two men at the times and places
7 related to this indictment. Alibi is very different in that I have to
8 prove that they were not where they say they were. So if they say they
9 were in Obrenovac or they say they were in Belgrade I have to investigate
10 and try to gather evidence that shows that they could not have been
11 there. With respect to the statements that they say were provided, that
12 may tell me where those witnesses say they were, but they do not provide
13 me the information that's clearly, clearly required under Rule 67 and
14 it's very simple information. It's for Mr. Alarid to state on the record
15 after consultation was his client where he says he was, who he says he
16 was with, and the names and addresses of the people he says he's with.
17 It's a notice requirement.
18 JUDGE ROBINSON: You're moving now from a position of principle.
19 You now seem to be saying that if you have sufficient information from
20 the Defence on alibi, you would be able to prepare your case and to
21 present it in chief.
22 MR. GROOME: Your Honour, I still think the Chamber is -- should
23 not require the Prosecution to provide a rebuttal in the case in chief
24 and I think this one example, I think, may clarify the point. The
25 Defence has no obligation to present a case. We all agree to that. So
1 we could spend, when I finally hopefully get some notification of where
2 Mr. Lukic says he is, if it's 50 witnesses that are going to provide this
3 information, it's conceivable that I could come up with another 50
4 witnesses to rebut that; so that means in the Prosecution case would be
5 doubled, I would call those witnesses and that at the conclusion of the
6 Prosecution case, Mr. Alarid could make the strategic decision that it's
7 in his clients's best interests not to proceed with the alibi, not to put
8 forward his witnesses. He's under no obligation to do that and not only
9 have we wasted an awful lot of time, but again we haven't gotten any
10 closer to the truth of what happened.
11 JUDGE ROBINSON: Can I ask you, regardless of when the Defence is
12 to present -- sorry, when the Prosecutor is to present its rebuttal of
13 the alibi, whether, in chief or following the Defence case, what would
14 your submission be as to the consequence of the failure of the Defence to
15 provide the information that is required by Rule 67?
16 MR. GROOME: Your Honour, I believe the remedy is that the
17 Defence can be precluded from introducing that -- the witnesses and
18 introducing the documents that they may seek to rely if they fail to give
19 notification, I think Mr. Lukic always has the opportunity to take the
20 stand and say, I was not there, I was somewhere else. I don't think that
21 that's an appropriate remedy to prohibit that. But clearly, if Defence
22 counsel fail in their obligations to notify about the evidence that they
23 intend to put forward, that the remedy would be precluding. I would also
24 point out Your Honour that yesterday in two decisions that the Chamber
25 has issued, the Chamber has taken the view that the deadline set in the
1 work plan are binding on the parties, and the Chamber has rigorously
2 applied that to the Prosecution with significant impact on the
3 Prosecution case.
4 All of the requirements to provide alibi notice, it's very
5 comparable, there is a great parity between the issues here and have been
6 dictated by a work plan and consistently that work plan has not been met,
7 the deadlines have not been met, and in some cases no extensions were
8 sought. The deadlines came and passed and then the Court in the status
9 conference issued new deadline as the Chamber has done today, issued a
10 new deadline to the Defence of Milan Lukic.
11 It's the Prosecution's position that equality of arms also
12 applies to the Prosecution. That fairness of the trial also applies to
13 the Prosecution. And that it is unfair to require the Prosecution to
14 somehow guess at what the Defence evidence related to alibi is going to
15 be, anticipate it, investigate it and produce it in court under rulings
16 that the Court has made today and limiting us to --or requiring us to
17 conclude the case sometime in the first week in October. I believe that
18 it is manifestly unfair to require the Prosecution to conduct the trial
19 in that way. I think the way to remedy that is to require the Defence
20 to, as soon as possible, and today, before I open, with respect to the
22 the address as he knows. I accept the Chamber's order for the July 18th
23 with respect to the rest of them. The rest of the alibis, but I think
24 before any evidence is called with respect to the Drina River
25 it's imperative that we at least have notification as required under Rule
2 JUDGE ROBINSON: Give us an example as to how you say the Defence
3 will be able to tailor its alibi defence, if you were to open on the
5 MR. GROOME: For example, Your Honour, let's say right now there
6 is this kind of vague assertion that Mr. Lukic was not in Visegrad at the
7 time. These crimes occurred late in the day. Let's say the Prosecution
8 was required in our investigations found a witness that said, Well at
10 produce that witness, as required by the Court in our direct case, the
11 witness, the Defence witness now in the -- in the --or Mr. Lukic or one
12 of his witnesses, can simply say, "Well, he was there until the morning
13 of the 7th and it was sometime in the afternoon that he left for
15 the Defence to tailor their evidence to what is introduced during the
16 Prosecution case.
17 JUDGE ROBINSON: Thank you.
18 All right. We are going to take a break shortly, but I wanted
19 Mr. Alarid to give us his submissions on the question of the consequence
20 of the failure of the Defence to provide information required by Rule 67.
21 You have heard the Prosecution say that the consequences that you would
22 be precluded from leading that evidence, if you don't provide the
23 required information under Rule 67. That's a very serious consequence.
24 MR. ALARID: Well, at risk of sounding flip, I think that would
25 be an outrageous remedy because in a totality of the circumstances
1 situation, given the history of counsel, and I think the obvious ability
2 to prepare this case, whether the problems were caused by the client,
3 counsel or a combination, I don't think that there can be any situation
4 that's more difficult on an accused, when you don't get to choose your
5 own attorney. Often times, when I'm hired by a private client, the
6 relationship that I build with that client is essential to the effective
7 preparation of a case and quickly, if the clients is unhappy with me in a
8 private situation, that's easily remedied.
9 JUDGE ROBINSON: Mr. Alarid, you're making an entirely different
11 MR. ALARID: Well, but it is --
12 JUDGE ROBINSON: Your points relates now to the state of your
13 preparedness. That's not what I'm talking about.
14 MR. ALARID: Well, but it is --
15 JUDGE ROBINSON: I'm saying as a matter of law, if the rules
16 require you to provide the Prosecutor with specific information of alibi
17 as to where the accused said he was on a particular day, the names of the
18 witnesses who can substantiate that alibi and any other relevant evidence
19 to substantiate the alibi, what is the consequence of the failure to
20 provide that? Why should you be allowed to lead the evidence? This has
21 nothing to do with the fact that you came into the case late. If you
22 wish to apply for more time in which to provide it, then we can hear that
23 application. But please understand that that is not an answer to the
24 question which I have asked.
25 MR. ALARID: And I didn't mean to digress, Judge. I just feel
1 that it is relevant only because when -- I think that I've in good faith
2 provided the information as quick as it's come to me. That's --
3 [Trial Chamber confers]
4 MR. ALARID: And so it's been given as quick as I've received it.
5 And I think it is absolutely the most destructive of decisions to exclude
6 evidence because the defendant is always entitled to put on a defence.
7 He may not be required to testify, he may not be required to put on a
8 shred of evidence but he's entitled to put on his defence and if the
9 first time an investigator -- because the contrary is this: Do I go to
10 all my witnesses and say, the first time an investigator from the
11 Milan Lukic team or any team has ever talked to me is June of 2008
12 related to crimes of 1992 and these are people that had to be located in
13 the mountains in towns they've moved, the same problems the Prosecution
14 had except they've had a dozen years to put this case together, and I've
15 had all of really productive time, eight weeks.
16 And so from an eight week perspective, I mean, I have single
17 victims, single murder cases that take two years that, you know, it takes
18 time to investigate and find the defences and we are doing this all in
19 the confines of eight weeks. And I think that alone from an equity of
20 arms, equality of arms perspective lends at least the tolerance of the
21 Court because at this point in time the Prosecution has really the
22 benefit of all its preparation, to refute us, they have almost unlimited
23 resources on which to contradict our alibi assuming that they feel they
24 have something that contradicts it, they have a lot of staff that can
25 research their files to quickly bring into place someone that says they
1 were drinking with Mr. Milan was drinking coffee at noon that day but in
2 terms of that, like I said, I think the Prosecution would have more of a
3 case had I only given a name, an address and a brief summary.
4 But the fact that I've given sworn notarised statements with
5 facts that place Mr. Lukic in I think a time and place at best as we can
6 at this juncture is more than sufficient at least to preserve the right
7 to put on a Defence because then the alternative is that we would simply
8 be the victims of the accusations of the Prosecutor in a vacuum; and I
9 think there is an absolute risk of injustice if that were to occur.
10 JUDGE ROBINSON: In the jurisdiction in which you practice when
11 you're not here is there a requirement for notice of alibi?
12 MR. ALARID: Absolutely, Your Honour, absolutely.
13 JUDGE ROBINSON: And what is the consequence if that notice is
14 not provided?
15 MR. ALARID: There is a consequence if the alibi was known to
16 counsel and was not timely provided because just in this jurisdiction,
17 the Prosecution is entitled to investigate and coordinate its resources
18 to contradict an alibi if available, so I think the Prosecution in a
19 vacuum is correct in saying that is a possible consequence and so I can't
20 in good faith not concede that; but if an alibi just becomes known to the
21 Defence under the normal course of representation, normally the Court
22 would allow for that if it were in the interests of justice, and I --
23 JUDGE ROBINSON: You're not saying that that is the case here?
24 MR. ALARID: Well, I do believe it is because there is nothing
25 I've done that is obstructionist at this point, and I think it would be
1 hard for the Court to find even obstructionist behaviour on the part of
2 the clients when you cannot have counsel you can fully comply with at
3 that time. Right now, we've done everything we can --
4 JUDGE ROBINSON: Thank you, Mr. Alarid.
5 MR. ALARID: Yes.
6 JUDGE ROBINSON: The legal officer.
7 [Trial chamber and legal officer confer]
8 JUDGE ROBINSON: I understand that the statements to which
9 Mr. Alarid have referred have in fact been provided. They have been
10 provided electronically to the Chamber and to the Prosecutor. We are
11 going to take a break and have a look at those statements, and when we
12 return, we'll give our ruling on the various matters that have arisen.
13 Mr. Groome did you want to say anything?
14 MR. GROOME: Your Honour, I have one of the statements here, and
15 I was going to point out to the Chamber what I believe Mr. Alarid is
16 referring to but perhaps it's not necessary. The Chamber is going to
17 read the decisions themselves. Your Honour, I just would make the
18 observation that this crime happened 16 years ago. It was one of the
19 first indictments ever issued. Clearly Mr. Alarid in his first interview
20 with Mr. Lukic must have said you say you weren't there, where were you?
21 This whole matter could be resolved in a manner of minutes by simply
22 Mr. Alarid saying, My client says he was here, and he was with these
23 people. It's a very simple matter, but I'll trust the Chamber to revolve
24 it in the way it sees best.
25 JUDGE ROBINSON: We are adjourned for half an hour.
1 --- Break taken at 10.12 a.m.
2 --- On resuming at 10.44 a.m.
3 JUDGE ROBINSON: I give the Chamber's ruling on two matters. The
4 Chamber reaffirms that it will follow the decision of the Appeals Chamber
5 in Delalic. Accordingly, the Prosecution will lead its alibi rebuttal
6 evidence in-chief.
7 As to the information that has been provided with regard to the
8 first incident, the Drina River
9 read some of the statements to which Mr. Alarid made reference.
10 The view that we take is this: The Defence is required to give
11 notice of certain matters. The Defence has proffered certain
12 information. The adequacy, the sufficiency, of that information will
13 ultimately be a matter for the Chamber to decide at the end of the day
14 when it comes to consider whether to accept or reject the defence of
15 alibi. The Chamber, therefore, does not see the evidence provided or any
16 lack of information provided as a ground for precluding the admission of
17 that evidence. As I said before, at the end of the day, the Chamber will
18 evaluate the evidence, and naturally the information that has been
19 provided as to where the accused was or the lack of information that has
20 been provided as to where the accused was and the witnesses to
21 substantiate the alibi will be matters for us to consider.
22 We'll therefore proceed on those bases.
23 MR. GROOME: Your Honour, if I ask for a clarification, Your
25 JUDGE ROBINSON: Yes.
1 MR. GROOME: With respect to the Chamber's order on the 8th of
2 May 2008, directing the Milan Lukic to answer three specific questions,
3 does this order today make that earlier disposition null and void?
4 JUDGE ROBINSON: You'll have to remind us what it was.
5 MR. GROOME: On the 8th of May the Chamber directed that with
6 respect to the Drina River
7 questions that were put forward in the Prosecution motion. The questions
8 were -- the reading from the decision, the Drina River incidents 7th of
9 June 1992
10 paragraphs 15(A) to (C), so they were directed to answer that.
11 Paragraphs 15 A to C read as following: The following clarification is
12 required from the accused. A, where was Milan Lukic at all times on the
13 7th of June 1992 and with whom? B, what is the name and current postal
14 address of the nominated Muslim witness? C, what other physical or
15 documentary evidence, if any, it is intended that the Defence for
16 Milan Lukic will rely upon to establish this alibi?
17 [Trial Chamber confers]
18 JUDGE ROBINSON: Yes, the Defence is still to comply with the
19 information, with the requirement, but the sufficiency of the information
20 is a matter for the Chamber to determine.
21 MR. GROOME: Your Honour, then I apologise for my confusion.
22 Then I don't understand how I can -- how do I -- what do I investigate?
23 I've looked through the statements, there is this vague description that
24 three days after the 4th of June there was a car trip somewhere with some
25 people. We know that the person who gave the statement says that at
1 least some part of that day they were in the car with Milan Lukic. But
2 where does Milan Lukic say he is? That's what I need to investigate.
3 That's only part of what's -- that I'm obliged to investigate.
4 JUDGE ROBINSON: Then your submission will be that the alibi has
5 not been established. That will be your submission when you come to make
6 your submissions. The information which they have provided does not
7 establish alibi. That will be my submission, if I were the Prosecutor.
8 MR. GROOME: But I must make that the evidence related to the
9 evidentiary basis for that submission must all be dealt with in the
10 Prosecution case before this witness ever arrives to give evidence in the
11 case. So I'm put in the position of guessing about many of the details
12 which, in fairness, the Prosecution must have an opportunity to
13 investigate. And all of that can be cured simply by Mr. Milan Lukic
14 stating, answering the questions that were ordered by the Chamber on the
15 8th of May and I'm not seeking to have Mr. Lukic himself go on the
16 record. His counsel, as his representative is bound or directed by the
17 order to state that. I'm simply asking that today, before the first
20 [Trial Chamber confers]
21 JUDGE ROBINSON: I don't understand your difficulty. If I were
22 the Prosecutor, I would consider that I'm in a favourable position. You
23 have nothing to rebut. He has not provided the things which are required
24 by the rules so what is there to rebut? And that would be my submission.
25 But we haven't reached that stage, Mr. Groome. We haven't reached the
1 stage for that submission. As I said, at the end of the day, we have to
2 assess the adequacy or the lack of adequacy of the information provided
3 by the Defence. This is an adversarial system. And you will have a
4 chance to make your submissions on the basis of the information that has
5 been provided by the accused as required by the Rules.
6 [Trial Chamber confers]
7 JUDGE ROBINSON: I need to make one thing clear. If, of course,
8 the Defence were to provide additional evidence of alibi during its case,
9 I mean, evidence that it has not given notification of, and it is allowed
10 to do that by the rules, then of course the Prosecutor would be entitled,
11 properly entitled, to rebut that after the Defence case.
12 MR. GROOME: Your Honour, again to clarify, so it's the order of
13 the court that by the 18th of July, the Defence is to provide -- is to
14 comply with the order of the 8th of May providing information and if it
15 doesn't then the Court will take that into consideration when it comes it
16 time to --
17 JUDGE ROBINSON: Of course, otherwise we will never start the
18 trial. We'll forever be making orders for them to provide this
19 information as required by the rules. So they must provide it by the
20 18th as ordered by the Chamber, and if they don't, then the consequences
21 that flow as a matter of law will flow.
22 Now, we were near the end, I believe, of the Pre-Trial
23 Conference, and I am to ask whether any of the accused has anything to
24 say, and I put the question first to Mr. Milan Lukic. Mr. Lukic, do you
25 have anything to say in relation to this?
1 THE ACCUSED MILAN
2 JUDGE ROBINSON: Thank you. And I put the same question to
3 Mr. Sredoje Lukic.
4 THE ACCUSED SREDOJE LUKIC: [Interpretation] Thank you, Your
5 Honour. I also have nothing to say.
6 JUDGE ROBINSON: Thank you. And does any of the -- the counsel
7 have anything additional to add? Yes, Mr. Cepic?
8 MR. CEPIC: Your Honour, with your leave if we could go to
9 private session, please?
10 JUDGE ROBINSON: Private session.
11 [Private session]
19 [Open session]
20 THE REGISTRAR: Your Honours, we are back in open session.
21 JUDGE ROBINSON: There being no other matters to discuss, the
22 Pre-Trial Conference is adjourned.
23 We will resume in half an hour.
24 --- Whereupon the hearing adjourned at 11.02 a.m.
25 to be followed by opening of trial proceedings.