Tribunal Criminal Tribunal for the Former Yugoslavia

Page 3580

 1                           Thursday, 13 November 2008

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.16 p.m.

 5             JUDGE ROBINSON:  May I give a ruling regarding the application

 6     made orally yesterday by Mr. Cepic for the admission of certain medical

 7     records relating to Mitar Vasiljevic.

 8             On the 10th of September, 2008, the Defence applied to have these

 9     documents admitted into evidence.  The Trial Chamber ordered that the

10     documents be marked for identification reserving its decision until the

11     11th of September, 2008.

12             On that day, the Chamber delivered its decision as follows:  If

13     the Defence wished to call evidence on Pionirska Street, they may do so

14     when they present their case, and at that time, they, of course, may

15     present any evidence relating to Pionirska Street, including that of

16     Mr. Vasiljevic and the hospital records.

17             The Chamber order that the hospital records remain marked for

18     identification, and it is still of the view that these records should be

19     presented by the Defence during the presentation of its case.  The

20     hospital records will therefore remain marked for identification.

21             I turn now to the Trial Chamber's ruling on Rule 98 bis.  That

22     rule, as you know, provides that the Trial Chamber shall, by oral

23     decision and after hearing the oral submissions of the parties, enter a

24     judgement of acquittal on any count if there is no evidence capable of

25     supporting a conviction.

Page 3581

 1             The standard to be applied in respect of each count of the

 2     indictment is whether the evidence, if believed, that is, taken at its

 3     highest, could lead a reasonable trier of fact to convict the accused on

 4     a count.  Thus, as long as there is some evidence capable of supporting a

 5     conviction, a motion for judgement of acquittal will fail.

 6             This standard does not call for an assessment of the guilt of the

 7     accused in light of the evidence adduced in the Prosecution's case.  And

 8     the Trial Chamber is not, at this stage, considering the credibility of

 9     the Prosecution's witnesses or evaluating the strength or weakness of

10     contradictory or different evidence before it.

11             This is how it was put by the Appeals Chamber in Jelisic.  I

12     quote:

13             "At the close of the case for the Prosecution, the Chamber may

14     find that the Prosecution evidence is sufficient to sustain a conviction

15     beyond a reasonable doubt, and yet, even if no Defence evidence is

16     subsequently adduced, proceed to acquit at the end of the trial, if, in

17     its own view of the evidence, the Prosecution has not in fact proved

18     guilt beyond a reasonable doubt."

19             The strength or weakness of the evidence before the Trial Chamber

20     and issues such as contradictions or inconsistencies in the Prosecution

21     case, are matters to be assessed by the Trial Chamber in determining

22     guilt or innocence at the end of the case.  As such, a 98 bis motion for

23     acquittal will succeed where there is no evidence supporting a count or

24     if the only relevant evidence, even taken at its highest, is so incapable

25     of belief that it could not properly support a conviction on a particular

Page 3582

 1     count.

 2             The rule, as amended in December 2004, focuses on counts rather

 3     than charges.  If a count is comprised of several parts and there is no

 4     evidence on one part of the count but there is evidence capable of

 5     supporting a conviction on the other parts, the motion will fail.  The

 6     Trial Chambers in Milutinovic, Mrksic, and Martic, have clarified what

 7     they considered to be the standard of proof, and this Trial Chamber

 8     applies the same standard in this case.

 9             Now, let us look at the submissions that have been made.  The

10     Defence for Sredoje Lukic elected not to present any submissions.  The

11     Defence for Milan Lukic contends that the Prosecution has failed to

12     establish the overarching jurisdictional requirements that the crimes

13     have been committed in the context of an armed conflict, and have been

14     motivated on racial, ethnic, or religious grounds.  It, therefore, sought

15     dismissal of the entire indictment.

16             If not successful on that argument, the Defence for Milan Lukic

17     concedes that the Prosecution has submitted evidence capable of

18     supporting a conviction in relation to Counts 1, persecutions; 2, 3, 4,

19     and 5, the Drina River incident; 11 and 12, inhumane acts and cruel

20     treatment in relation to the Pionirska Street incident; and 20 and 21,

21     the Uzamnica barracks incidents.

22             For the remaining counts, the Defence of Milan Lukic challenges

23     the identification of the accused by the witnesses.  In particular, it

24     challenges any reliance on in-court identification and seeks the

25     dismissal of Counts 6 and 7, the Varda factory incident; 8, 9 and 10,

Page 3583

 1     extermination and murder in relation to the Pionirska Street incident;

 2     13, 14, 15, 16, and 17, the Bikavac incident; and 18 and 19, the killing

 3     of Hajira Koric.  In relation to the events at Bikavac, Counts 13 to 17,

 4     it is also argued that the Prosecution has failed to provide sufficient

 5     evidence of the deaths of the alleged victims of this event.

 6             In reply, the Prosecution made detailed submissions pointing to

 7     the evidence which it had led to support a conviction in respect of each

 8     of the counts.

 9             A total number of 21 individual counts of persecution,

10     extermination, murder, inhumane acts, and cruel treatment have been

11     brought against the accused regarding six incidents that occurred in the

12     municipality of Visegrad, Bosnia and Herzegovina, between 1992 and 1994.

13     Regarding each of the crimes for which the accused have been individually

14     charged, they are alleged to have committed and aided and abetted those

15     crimes pursuant to Article 7(1) of the statute.  The crimes with which

16     the accused are charged are listed in Articles 3 and 5 of the statute.

17     And I turn first to the evidence relating to the chapeau requirements of

18     those articles, that there was an armed conflict in the region at that

19     time and that the attacks were widespread or systematic in nature.

20     Following that, the evidence relating to the six incidents will be

21     discussed.  And then the decision will conclude by examining Count 1,

22     persecutions.

23             The Trial Chamber heard considerable evidence that an armed

24     conflict commenced in and around Visegrad in April 1992.  As an example,

25     it notes the evidence of VG-011 and Mirsada Kahriman.  There is also the

Page 3584

 1     evidence from other witnesses, in particular, Mirsad Tokaca, VG-025,

 2     VG-097, and Adem Berberovic, that hostilities did not cease with the

 3     departure of the Uzice Corps in mid-May 1992.  The Chamber, therefore,

 4     concludes that the violence in this conflict was sufficiently protracted

 5     and at a level that meets the requirements of Rule 98 bis.

 6             The evidence also indicates that the crimes charged in the

 7     indictment were committed as part of a widespread or systematic attack

 8     against the Muslim civilian population of Visegrad.  Witnesses testified

 9     about, for example, the disappearances and killings of Muslims, the

10     taking of their property, and the burning of mosques in Visegrad.  Among

11     these witnesses are VG-032, VG-035, VG-038, VG-064, VG-082, and VG-119.

12             The Chamber also points to the evidence of Ewa Tabeau, who

13     testified that out of 6.799 Muslims registered as being in Visegrad in

14     the 1991 census, only one person remained there after the conflict.  She

15     also testified that the 62 percent of all those who went missing in 1992

16     disappeared from Visegrad in May to July 1992, and in most in June of

17     that year.

18             The clear inference to be drawn from the crimes committed by the

19     Serbs against the Muslim population is that they were motivated by ethnic

20     considerations.  One example of this is the evidence of VG-115, who

21     testified as to the rounding up of Muslim colleagues and the daily

22     execution of Muslims at the Drina River.

23             Additionally, the Chamber heard a considerable amount of evidence

24     about non-indicted crimes allegedly committed by the accused and others

25     against the Muslim civilian population.  These include murders, rapes,

Page 3585

 1     beatings, unlawful detentions, and theft.  In this regard, the Chamber

 2     recalls the evidence of VG-011, VG-013, VG-035, VG-058, VG-063, VG-064,

 3     VG-082, VG-089, VG-097, VG-115, VG-119, and VG-131.

 4             In conclusion, the Chamber is satisfied that the Prosecution has

 5     presented evidence that indicates that the chapeau requirements of

 6     Articles 3 and 5 of the statute are met.

 7             We now look at the crimes charged in the indictment.

 8             In Counts 2 to 5, the Prosecution charges Milan Lukic with murder

 9     as a crime against humanity, Count 2; and murder as a violation of the

10     laws or customs of war, Count 3, punishable under Articles 3 and 5(a) of

11     the statute, in relation to the killing of Bosnian-Muslim men by the

12     Drina River on the 7th of June, 1992.

13             In respect of those who survived the incident, Milan Lukic is

14     charged with inhumane acts, a crime against humanity, Count 4; and cruel

15     treatment in violation of the laws or customs of war, Count 5, punishable

16     under Articles 3 and 5(i) of the statute.

17             The Chamber heard evidence from VG-014 and VG-032 that in the

18     afternoon of the 7th of June, 1992, Milan Lukic, together with armed

19     soldiers, rounded up several Bosnian-Muslim men, including Amir Kurtalic,

20     Ekrem Dzafic, Hasan Kustura, Hasan Mutapcic, Meho Dzafic, VG-032, and

21     VG-014.

22             The Chamber heard testimony from VG-014, VG-032 and

23     Mitar Vasiljevic.  VG-032 testified that Milan Lukic forced the men at

24     gun point to give him their valuables, as well as their identity cards,

25     which he stepped on.  Then he took them to the Vilina Vlas Hotel in the

Page 3586

 1     cars, and then to a point close to the Drina River, where he ordered them

 2     to move towards the river.  Lukic and the two soldiers opened fire on the

 3     men in the river, but VG-014 and 032 escaped unharmed.

 4             There's also the evidence of VG-079 who observed the incident

 5     from the opposite bank of the river together with another person.  His

 6     evidence is consistent with that of VG-014 and VG-032.

 7             The Chamber concludes that the Prosecution has presented evidence

 8     that is capable of supporting a conviction with respect to Counts 2 to 5

 9     concerning the Drina River incident.

10             Counts 6 and 7 charge Milan Lukic with murder as a crime against

11     humanity, and murder as a violation of the laws or customs of war in

12     connection with the killing of Bosnian-Muslim men by the Varda sawmill

13     and furniture factory in Visegrad on or about the 10th of June, 1992.

14             The Chamber heard evidence about events that took place at the

15     Varda factory from VG-017, VG-042, and VG-024.  The witnesses testified

16     that in the morning of a day on or about the 10th of June, 1992,

17     Milan Lukic arrived at the Varda factory in a Passat.  He was carrying an

18     automatic rifle.  He entered the factory, brought out six or seven men,

19     including Ibrisim Memisevic, and gathered them at the gate to the factory

20     near the guardhouse.

21             The witnesses observed Milan Lukic take the men down to the

22     Drina River.  VG-042 saw Milan Lukic lining up the men, facing the river,

23     and then shooting them.  When VG-024 realized what Milan Lukic was going

24     to do, she ran.  Then she heard a long burst of fire.  VG-017 lost sight

25     of the men as they reached the river, but heard the sound of automatic

Page 3587

 1     rifle fire shortly thereafter.  Milan Lukic returned to the car and drove

 2     away in the direction of Visegrad.

 3             VG-042 testified that the day after the incident, she assisted in

 4     bringing Ibrisim Memisevic's body from the river and burying him.  The

 5     bodies of the other men stayed on the rocks by the river.

 6             VG-017, who also helped to bury the body of Memisevic, observed

 7     that it was "riddled by bullets."

 8             The Chamber concludes that the Prosecution has presented evidence

 9     capable of supporting a conviction in relation to Count 6 and 7

10     concerning the Varda factory incident.

11             Counts 8 through 12 charge Milan Lukic and Sredoje Lukic with

12     crimes arising out of the house burning on Pionirska Street on the

13     14th of June.  With regard to the approximately 70 Bosnian-Muslims killed

14     during the incident, Counts 8 through 10 charge Milan Lukic and

15     Sredoje Lukic with extermination, a crime against humanity punishable

16     under Article 5(b) of the statute; murder as a crime against humanity;

17     and murder as a violation of the laws or customs of war.  With regard to

18     those who survived the incident, Counts 11 and 12 charge Milan Lukic and

19     Sredoje Lukic with inhumane acts, a crime against humanity, Count 11; and

20     a cruel treatment, a violation of the customs of war, Count 12.

21             The Chamber heard evidence of the events that took place on

22     Pionirska Street from witnesses VG-013, VG-018, VG-038, VG-084, VG-078,

23     VG-101, VG-115, and Huso Kurspahic.

24             Many of the witnesses were among a group of approximately 70

25     Muslims who arrived in Visegrad on the 14th of June, 1992.  The group was

Page 3588

 1     told they had to spend the night in a house on Pionirska Street owned by

 2     Jusuf Memic.  In the evening, Milan Lukic and Sredoje Lukic arrived at

 3     the house, along with others, including Mitar Vasiljevic and

 4     Milan Susnjar.  Members of the group were strip-searched.  The group's

 5     valuables were taken.  Milan Lukic, Sredoje Lukic, and the others then

 6     left, returning later in the night to tell the group that they had to

 7     move to another house.

 8             The witnesses testified that they were moved by Milan Lukic,

 9     Sredoje Lukic, Milan Susnjar, Mitar Vasiljevic, and others to

10     Adem Omeragic's house, also on Pionirska Street.  Both Milan Lukic and

11     Sredoje Lukic were armed with rifles.  Witness VG-084 testified that

12     Sredoje Lukic had bombs around his belt.

13             VG-013 testified that on entering Adem Omeragic's house she

14     noticed that there were carpets on the floor covered with a sticky

15     mixture emitting a pungent odour.  The group was locked in a room of the

16     house.  Witnesses then saw Milan Lukic and others throwing explosive

17     devices and gasoline into the room.  The room burst into flames.  VG-013

18     sustained a shrapnel wound to her leg.

19             Some attempted to escape through the windows.  Witnesses

20     testified that persons attempting to escape were fired upon.  VG-013

21     testified that Milan Lukic started firing at the windows, while another

22     perpetrator shone a flashlight on the windows as he fired.  VG-013

23     managed to get out of one of the windows, but sustained a bullet wound to

24     her upper left arm.  VG-084's mother broke a window and VG-084 pushed her

25     out immediately following her.  VG-084 sustained a shrapnel wound to the

Page 3589

 1     forehead.  VG-018 was wounded in the neck, face and arms.  Both hid

 2     behind a nearby tree.  Huso Kurspahic testified that his father,

 3     Hasib Kurspahic, now deceased, told him how he escaped when an explosion

 4     blew open the door next to which he was standing and threw him outside.

 5     Hasib Kurspahic saw people trying to escape and being fired upon and

 6     killed.  He was wounded to the forehead and right arm.

 7             In light of the foregoing, the Trial Chamber concludes that the

 8     Prosecution has presented evidence capable of supporting a conviction

 9     with respect to Counts 8 to 12 of the indictment.

10             We now examine Counts 13 to 17.  These counts charge Milan Lukic

11     and Sredoje Lukic with crimes arising out of the house burning in Bikavac

12     on the 17th of June, 1992.  With regard to the approximately 70

13     Bosnian-Muslims allegedly killed during the incident, Counts 13 through

14     15 charge both accused with extermination, a crime against humanity,

15     that's Count 13; murder, a crime against humanity, Count 14; and murder,

16     a violation of the laws or customs of war, Count 15.

17             In respect of the one person who survived the incident, Counts 16

18     and 17 charge both accused with inhumane acts, a crime against humanity,

19     Count 16; and cruel treatment, a violation of the laws or customs of war,

20     Count 17.

21             The Chamber heard evidence that on the evening of Saturday, 27th

22     of June, 1992, Zehra Turjacanin and others were taken from their house in

23     Bikavac by Milan Lukic -- I just realised that I failed the test set by

24     Judge Van den Wyngaert as to the proper pronunciation of Zehra's name.

25     Anyhow, she and others were taken from their house in Bikavac by

Page 3590

 1     Milan Lukic, Sredoje Lukic, Mitar Vasiljevic, and other Serb men.  She

 2     and her family were told that a convoy had been organised to transport

 3     them to Bajina Basta while, in fact, Milan Lukic and his group led them

 4     to a house nearby belonging to Meho Aljic.  Zehra testified that when she

 5     entered Meho's house, Milan snatched a gold chain that was around her

 6     neck.

 7             From a distance, witnesses VG-115 and VG-058 could see how many

 8     people, including people from surrounding villages, were herded into

 9     Meho's house.  There was evidence that there were more than 60 women,

10     young children, and elderly people in the house.  VG-115 testified that

11     all the people in the house were civilians; nobody was armed or wore any

12     kind of uniform.

13             The evidence shows that when everyone had been herded into the

14     house, Milan Lukic, Sredoje Lukic, and other Serb men threw rocks at the

15     house to break the windows.  Then they threw at least two grenades into

16     the house and started shooting at the walls and the people inside.

17     Grenade fragments entered into Zehra's left leg.  From outside the house,

18     witnesses VG-115 and VG-058 witnessed how petrol was used to set the

19     house on fire.  The fire spread very quickly.  Zehra's clothes caught

20     fire and her skin began to burn.  She also saw how the clothes of other

21     people in the house caught fire, and how they started burning alive.

22             Zehra managed to escape through a small opening in a door which

23     had been blockaded earlier by Milan and Sredoje Lukic with a heavy metal

24     garage door.  After half an hour, witness VG-058 could still hear screams

25     coming from the house.

Page 3591

 1             VG-058 witnessed Milan Lukic, Sredoje Lukic, Mitar Vasiljevic

 2     driving away from the house.

 3             Zehra is the only known survivor of the Bikavac house burning.  A

 4     video of Zehra made while she was being given medical treatment in 1992,

 5     shows the extreme gravity of her burns.  Large parts of her story were

 6     confirmed by witnesses VG-032, VG-035, VG-058, VG-115, VG-119, as well as

 7     Huso Kurspahic.

 8             It is therefore concluded that the Prosecution has presented

 9     evidence capable of supporting a conviction in relation to Counts 13 to

10     17.

11             Counts 18 and 19 charge Milan Lukic with murder as a crime

12     against humanity, and murder as a violation of the laws or customs of war

13     in relation to the killing of Hajira Koric, a Bosnian-Muslim woman, on or

14     about June 1992.

15             VG-035 testified that, sometime between the 1st and 5th July

16     1992, she was in a house with 10 to 15 women and children when some ten

17     armed men in camouflage uniforms, referred to as the "Savic group,"

18     entered the house.  They chased everyone out of the house, and the group

19     of women and children headed in the direction of Bikavac.  On their way

20     to Bikavac, and after the Savic group had left, they encountered

21     Milan Lukic and several men who ordered the group to stop and surrounded

22     them.

23             VG-035 testified that one of the men was looking for

24     Hajira Koric.  This man walked up to the sister-in-law of witness VG-035,

25     at which point Milan Lukic said:  "This isn't Hajira."  And he then

Page 3592

 1     pointed her out.  Lukic asked Hajira Koric where her husband and son

 2     were.  She said they were in Belgrade.

 3             VG-035 that testified that Milan Lukic then kicked Hajira Koric

 4     and that she fell to the ground.  As she was lying on the ground,

 5     Milan Lukic shot her twice; first in the chest and then, after he had

 6     turned her over with his boot, in the back.  VG-035 testified that as a

 7     result, Hajira Koric died.

 8             The Prosecution has presented evidence capable of supporting a

 9     conviction with regard to Counts 18 and 19, and the killing of

10     Hajira Koric.

11             I turn now to Counts 20 and 21, in which the Prosecution charges

12     Milan Lukic and Sredoje Lukic with inhumane acts, a crime against

13     humanity, Count 20; and cruel treatment, a violation of the laws or

14     customs of war, Count 21, in relation to the beating of Bosnian-Muslim

15     men who were detained at the detention camp at the Uzamnica military

16     barracks in Visegrad on multiple occasions between August 1992 and

17     October 1994.

18             There was evidence about the beatings from four detainees of the

19     Uzamnica camp.  They testified that Milan Lukic and Sredoje Lukic entered

20     the camp on several occasions between August 1992 and October 2004,

21     regularly beating detainees with their fists, with rifles, and with

22     wooden stakes.

23             Adem Berberovic testified that Milan Lukic and Sredoje Lukic beat

24     the detainees, including Nurko Dervisevic, on several occasions.  He

25     specifically recalled that Milan Lukic once beat him with an electric

Page 3593

 1     baton, and another time with a wooden bat.  Nurko Dervisevic specifically

 2     recalled Milan Lukic kicking him with his trainers and pressed him to the

 3     floor several times.  Nurko and VG-025, whose evidence was admitted in

 4     written form under Rule 92 quater, gave evidence that Milan Lukic kicked

 5     and beat the detainees until they started to bleed.  Islam Kustura

 6     testified that Milan Lukic would run at him and the other detainees until

 7     they fell over.

 8             Subsequently, Milan Lukic would kick and beat them and would not

 9     stop until he had beaten up everybody.  Islam Kustura also recalled that

10     Sredoje Lukic beat him and the other detainees, including

11     Nurko Dervisevic.  The witnesses also testified as to the injuries they

12     sustained as a result of the beatings.  Lastly, the Chamber heard

13     evidence that VG-025 was beaten by Milan Lukic on several occasions.

14             Our conclusion is that the Prosecution has presented evidence

15     capable of supporting a conviction relating to Counts 20 and 21.

16             Finally, I now examine Count 1 which charges the accused with

17     persecutions, a crime against humanity punishable under Article 5(h) of

18     the statute.  Having found the Prosecution -- that the Prosecution

19     presented evidence capable of supporting a conviction in relation to

20     Counts 2 to 21, the Trial Chamber concludes that that is also true of

21     Count 1.  The evidence presented supports the conclusion that these acts

22     were committed with a discriminatory intent.

23             The Defence for Milan Lukic has challenged the use of in-court

24     identification of the accused.  However, the Trial Chamber finds that it

25     is not necessary to consider the issue of in-court identification of the

Page 3594

 1     accused as it accepts the Prosecution's submission that there is

 2     sufficient evidence of identification by other witnesses to meet the

 3     standard required for Rule 98 bis.

 4             In sum, on the basis of the criteria previously identified, the

 5     evidence mentioned above is, in the opinion of the Trial Chamber, capable

 6     of supporting a conviction for the crimes charged in Counts 1 to 21 of

 7     the indictment.

 8             That is the judgement.  We will adjourn now and resume -- who is

 9     to tell me when we resume?

10                           [Trial Chamber and legal officer confer]

11             JUDGE ROBINSON:  Monday, the 24th of November, in the afternoon

12     in Courtroom 1.

13             MR. ALARID:  Your Honour.

14             JUDGE ROBINSON:  Yes, Mr. Alarid.

15             MR. ALARID:  Yes, sir.  I would like to do a little housekeeping

16     considering that -- the schedule we are on.  And I know the Court has,

17     you know, kind of put us on this path to get the Sredoje Lukic case on

18     the road, but I will put the Court on notice that we are filing another

19     motion to extend our case, that doesn't necessarily impact the beginning

20     of this case, and I will inform the Court that I'm flying back to the

21     United States tomorrow to attempt to further Defence preparation

22     preparations and get things going.  I will be able to assist, of course,

23     with the 65 ter submission that is due, to the best of our ability, by

24     next week, you know, we can do that electronically of course.  But I did

25     want to inform the Court as to where I'm going and kind of what I'm doing

Page 3595

 1     with regards to the Defence of this case, so you can understand the time

 2     constraints and when its done.

 3             The last time we took a short break the Court advised me to make

 4     good use of my time, and what I did was --  and I'd like the if the court

 5     assistant could help me, I've prepared copies of the CVs of the experts

 6     of which I'm consulting with and we'll be presenting at trial.  And

 7     there's a copy -- I've already given a copy to 2D, but one set is for

 8     Mr. Groome and the rest can be for the Court.

 9             Now one of the complicating factors, Your Honour, is that, for

10     instance, the second CV that's in the pile there is of -- excuse me, the

11     third CV is of Cliff Jenkins.  He's a former deputy chief of police of

12     the Albuquerque police department.  He was in charge of the homicide and

13     sex crimes unit, and one of things that we've -- is, you know -- as you

14     apply to the registry to get an expert even eligible to look at the

15     confidential materials in these cases, there's some lag time that goes

16     on.  And then we also have to -- one of the logistics problems, that I'm

17     sure the Prosecution doesn't have in these kind of cases, is for

18     Mr. Jenkins to even look at these materials I had to get him appointed

19     first.  And then for instance, I requested that he be allowed to travel

20     back with me for this time that I'm here so he can have full access to

21     the paper file because electronic filing is -- can be cumbersome.  It may

22     be convenient to put something on a hard drive, but if it's not printed

23     and you can't back and forth the things, it's very, very cumbersome.

24             They rejected that application for Mr. Jenkins to fly -- be here

25     this week, so we could be doing that Defence preparation in concert with

Page 3596

 1     doing the ongoing trial.  So I'm, in fact, having to take a hard drive

 2     with all of those materials back to Mr. Jenkins so he can begin his

 3     review of the case.  One of the things that will be essential for his

 4     review, of course, is a site visit.  Another expert witness that I've not

 5     retained yet, and it's -- the difficulty that we have here is, I'm

 6     actually entertaining an arson investigator.  I'm talking with both

 7     federal, state and local officials in New Mexico, because that's really

 8     all I have contact with, but I would like to put an arson investigator in

 9     both the Pionirska site and the Bikavac site to see what residual

10     evidence may or may not be with all concessions that time is a problem in

11     this particular case.  But I think that there are forensic tests that

12     could be done, even at this stage, that could verify some of the --

13     either confirm the allegations of the Prosecution or, in fact, reject

14     some of them.

15             We also -- you'll see, Your Honour, the first CV on there is a

16     Dr. Warner Anderson, MD.  He is currently the director to the assistant

17     of the Department of Defence in charge of international health.  The only

18     reason I have access to him, Your Honour, he is a former chief of the

19     emergency room and Gallup Medical Centre in New Mexico.  We are going to

20     have him review the medical history records and available documents

21     related to Ms. Turjacanin, and of course in -- the best case scenario

22     would be an actual physical exam, but you know, I understand that there

23     may be some constraints, and I don't even want to go there yet, but Dr.

24     Anderson is in Virginia, and considering we can't get him to come out

25     here, I'm going to have to stop by and, again, take those confidential

Page 3597

 1     materials to him because they are too big to e-mail, for instance, the

 2     video of her with the burns and things like that can't be e-mailed, so

 3     it's got to be delivered and mailed in some fashion.

 4             JUDGE ROBINSON:  Additional time that you are seeking --

 5             MR. ALARID:  Yes.

 6             JUDGE ROBINSON:  -- arises because of a trip that you have to

 7     make to the United States?

 8             MR. ALARID:  Well, that's part of it, Your Honour.  It's the

 9     logistical nightmare that we're -- we have to go through the registry for

10     everything.  I mean, they only give us 150 hours of available expert time

11     of which I have to break up between however many experts I'm going to

12     use.  We've already got an application for an additional 150, because the

13     second CV you have is Dr. George Huff, PhD.  He's a psychologist.  He is

14     currently evaluating Mr. Lukic.  We've been doing that while coming to

15     court every day, getting him into the jail to see him before court, but

16     his evaluation is going to obviously transcend this place.  He is looking

17     at other materials and that is going to be something that's pushed off

18     into the future.

19             What I'm fearful of, Your Honour, is making promises I can't keep

20     because if I try and come into court here, let's say -- because one of

21     the time crunches we've had -- I know you gave us the favour of putting

22     us second, but the Sredoje Lukic team, I believe, is only going to have

23     about four witnesses and maybe possibly the accused, but four witnesses

24     is all we've gotten confirmation on.  And four witnesses is a very short

25     time, and I can see them being done in a very short time.  And so given

Page 3598

 1     that fact, it's not that much of a favour.  I mean, if they were going to

 2     be here for months or two months or something, then we could stay working

 3     and doing that because, you know, this is the problem when we have and I

 4     only have one Serbian speaker right now because Jelena --

 5             JUDGE ROBINSON:  You should be grateful for all the mercies that

 6     we give you.

 7             MR. ALARID:  I am sorry, Your Honour?

 8             JUDGE ROBINSON:  You should be grateful for all the mercies.

 9             MR. ALARID:  I'm grateful for every one, Your Honour, to be

10     honest.  But this is just the reality --

11             JUDGE ROBINSON:  How much more time is it that you are seeking?

12             MR. ALARID:  Well, we are hoping, Your Honour, that regardless of

13     the situation that you could put us sometime into January, after the

14     Christmas break, and that should give me enough time to put the wheels in

15     motion, dealing with the logistical and bureaucratic roadblocks that I

16     have to put up with that the Prosecution doesn't, by resources or

17     organisation, have to deal with.

18             That is the problem with the smaller team, that's why we've been

19     fighting for level 2 for such a long because, you know, in Perisic

20     decision on equality of arms there was an example made where the

21     Prosecution was able to put a team of 12 people on a project for three

22     days.  That was the equivalent of a single person working for six months.

23     It's those kind of things that are very problematic because when you have

24     Marie here doing all the typing and motions writing, Danny's just been

25     coming in lately trying to catch up, and I've been so focused on the

Page 3599

 1     trial -- well, I do have for Your Honour, and that's why the 65 ter, I

 2     think, will make you pleased, is we have a slew of witnesses.  A large

 3     amount of them are right out of the Prosecution's case.  We've pulled

 4     these witnesses that they chose not to call and we think provide

 5     competent evidence in contradiction of other forums.

 6             JUDGE ROBINSON:  So what is your --

 7             MR. ALARID:  And technically, Your Honour, we are not even funded

 8     by OLAD for this month.  Now, I've received promises so I can't -- I

 9     can't really go off the deep end, but we are supposed to file our pro

10     forma invoices just to receive the monthly stipend by November 15th,

11     usually, or by the middle of the month, and we still haven't gotten

12     confirmation of how it's going to be broken down.  I understand the

13     registry officials are out of town, so I mean, you know, all in all, but

14     it does -- it makes us feel like we are always up against the wall.  And

15     we don't have necessarily the resources or the flexibility if I were a

16     privately retained lawyer or something like that where the resources were

17     at our beck and call and not under the micromanagement of the registry.

18             JUDGE ROBINSON:  What is your estimate for the time that you --

19             MR. ALARID:  From today, Your Honour, we are asking for five to

20     six weeks which would put it after the winter break for the start of our

21     trial.

22                           [Trial Chamber confers]

23             JUDGE ROBINSON:  Mr. Cepic, you can speak, no doubt, on your own

24     behalf.  It has been intimated that you will be calling four witnesses.

25             MR. CEPIC:  Your Honour, I've been trying to make our case as

Page 3600

 1     efficient as possible, and we are ready to start on 24th of November.  So

 2     we will try to make it, as I said, in short time -- in short period of

 3     time.  In very short period of time.

 4             JUDGE ROBINSON:  One week?

 5             MR. CEPIC:  Shorter than one week.  Maybe in two days.

 6             JUDGE ROBINSON:  Oh.

 7             MR. CEPIC:  Just two days.  Just two working days.

 8             JUDGE ROBINSON:  Well, we will receive the application that you

 9     will make and we will give due consideration to all the submissions that

10     you have made.

11             MR. ALARID:  And, Your Honours, as Mr. Cepic was talking to me

12     off the record, I do want to apologise to him because I couldn't commit

13     to him.  He had only give been me a general idea, and again the

14     time-frame, I think, that he just gave you is consistent with that, but

15     I'm not committing him to a number of witnesses or anything like that.

16             JUDGE ROBINSON:  No, no, and Mr. Cepic would not have taken it in

17     that way.  There would have been no basis for him to do so.  Mr. -- let

18     me hear Mr. Groome.

19             MR. GROOME:  I don't really have a position on this, but it seems

20     that it might be worth clarifying whether Mr. Alarid is ready to proceed

21     on the alibi portion of his Defence.  It seems that the CVs that I've

22     just received seem to have to do with experts on alcoholism, psychiatric

23     experts, so I'm not sure if that's evidence of mitigation that he needs

24     more time to prepare or if is he ready to proceed with the alibi

25     witnesses that he intended to call.

Page 3601

 1             JUDGE ROBINSON:  Mr. Alarid.

 2             MR. ALARID:  I would say no, Your Honour, although we've compiled

 3     the witnesses themselves, it's the presentation, the difficulty with the

 4     small team that brings that.  See with me being lead counsel and Defence

 5     counsel or co-counsel coming so late, we have to let Jelena stay out of

 6     the sphere.  And for purposes of dealing with witnesses, it still needs

 7     both attorneys now to deal with any particular witness as opposed to the

 8     Prosecution who was able to break up witnesses, deal with the Victims

 9     Witness Unit separately, each attorney being able to split that up.  It's

10     very difficulty logistically, unless we have a little bit of a gliding

11     room, to get everything in order because my fear is, is that we would

12     come into this looking very bad for you and appearing disorganised and

13     dishevelled.  I think that the best way to be about going to our Defence

14     case is just being able to do it all at once and not breaking it up any

15     more than we already have.

16             And one of the things that have complicated matters,

17     Your Honours, is our -- one of the things that has complicated matters is

18     our case manager down there, Jelena, has been experiencing threats and

19     obstructions, and our witnesses have been getting these kind of backlash

20     for even dealing with us.  I actually expected that, but with the small

21     size of our team, it really is an issue.  And you know, all we can do

22     right now is try and compensate for because the registry and the current

23     funding situation doesn't allow us to throw more warm bodies at it.  So,

24     when there's less people to do the same amount of work, it tends to take

25     longer.

Page 3602

 1             JUDGE ROBINSON:  How long will your case take?  What is your idea

 2     of that?

 3             MR. ALARID:  We are estimating less than two months, Your Honour.

 4     Less than the Prosecution took.

 5             JUDGE ROBINSON:  Less than two months.  Very well.  We'll

 6     consider all these matters.  You are going to file a motion or shall we

 7     take this as --

 8             MR. ALARID:  Your Honour, we have it prepared so I think from an

 9     outline perspective, the writing is clearer than my rambling, definitely.

10             THE COURT:  Well, you don't have to be so self-deprecating,

11     Mr. Alarid.  So we'll adjourn.

12                           --- Whereupon the hearing adjourned at 3.16 p.m.,

13                           to be reconvened on Monday, the 24th day of

14                           November, 2008, at 2.15 p.m.