Page 20960
1 Monday, 12 May 2014
2 [Pre-Defence Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.31 a.m.
6 JUDGE ORIE: Good morning to everyone in and around this
7 courtroom, after having been absent for quite a while.
8 Madam Registrar, would you please call the case.
9 THE REGISTRAR: Good morning, Your Honours. Good morning to
10 everyone in and around the courtroom.
11 This is the case IT-09-92-T, the Prosecutor versus Ratko Mladic.
12 JUDGE ORIE: Thank you, Madam Registrar.
13 We are meeting today to have the pre-Defence conference. I have
14 an agenda and I'd like to go through it, and at the very end you have an
15 opportunity to add whatever is needed to be added.
16 I'd like to start with the technical issues that were raised
17 recently. And I would first like to invite the Defence to give the
18 Chamber an update as to the progress that has been made with regard to
19 the technical issues it has been experiencing up till the moment of this
20 conference.
21 Mr. Lukic, any problems remaining or --
22 MR. LUKIC: I would kindly ask Your Honours to ask Mr. Ivetic
23 if -- since he's really more in charge of this aspect.
24 JUDGE ORIE: Mr. Ivetic, any problems -- technical problems
25 remaining and if so which ones?
Page 20961
1 MR. IVETIC: It's a little hard to say which ones remain. I do
2 know that the IT staff was -- five individuals were in the Defence rooms
3 as of last Wednesday or Thursday continuing to address problems with
4 individual computers on the various log ins. I don't know which problems
5 exist on which computers since my log-in appears to be functioning.
6 The -- I just spoke with some staff earlier this morning and I was --
7 I've been told that everything should be addressed this week and should
8 be then functioning this week.
9 JUDGE ORIE: Yes. First of all, there's no need for Mr. Mladic
10 to stand unless there's any specific matter raised.
11 Mr. Mladic, would you please sit down. You can sit down even if
12 they are working on your computer.
13 THE ACCUSED: [No interpretation]
14 JUDGE ORIE: Please sit down, Mr. Mladic, now, right away. And
15 no loud speech either.
16 Mr. Lukic, could you please remind Mr. Mladic if he wants to
17 consult with you that he should do at an inaudible level, an inaudible
18 volume of speech.
19 MR. LUKIC: Yes, Your Honours. He just objected since nothing
20 works on his desk.
21 JUDGE ORIE: Yes, but you don't have to stand. There is no
22 reason there. But, of course, it should be fixed and that's what the
23 Chamber is always aiming at.
24 [Trial Chamber and Registrar confer]
25 JUDGE ORIE: The technician will arrive to assist, I do
Page 20962
1 understand.
2 Is Mr. Mladic able to follow the proceedings? Then I would
3 suggest that we would continue.
4 Mr. Ivetic?
5 We'll wait for a second, although you can see the English text on
6 the screen and a picture of the courtroom. There's no evidence on the
7 screen at this moment.
8 Is there any possibility to use another screen for Mr. Mladic?
9 [Trial Chamber confers]
10 [Trial Chamber and Registrar confer]
11 [Technical difficulty]
12 JUDGE ORIE: Were the problems fixed? They were.
13 Then we'll continue.
14 Mr. Ivetic, let's -- me resume where you said that ...
15 Have the problems not been fixed? Then I'd like to be informed.
16 [Trial Chamber confers]
17 JUDGE ORIE: Could -- could -- could someone inform the Chamber
18 about what the problem still is, if there's any problem.
19 MR. IVETIC: I'm told again the transcripts -- neither the
20 transcript nor the monitor were working. I'm told now it is working
21 again so we should be --
22 JUDGE ORIE: Okay. Do we have to understand the keen interest of
23 Mr. Mladic that he is able to read English? Is that what we should
24 understand from this?
25 [Defence counsel confer]
Page 20963
1 JUDGE ORIE: Okay.
2 Mr. Lukic, or Mr. Ivetic, briefly report any problem remaining?
3 MR. IVETIC: With the monitors here? No, I'm told it's working
4 now.
5 JUDGE ORIE: Okay. Fine. Then let's proceed. And my
6 question --
7 Mr. -- Mr. Mladic should not speak aloud. He should consult with
8 counsel and then it should stop.
9 [Trial Chamber confers]
10 MR. IVETIC: I can report, Your Honours, that the monitor in
11 front of the General is not functioning with the video. It only has the
12 transcript. And therefore, he has to follow the video on one of the
13 auxiliary monitors to the side of him. I don't know which one is turned
14 towards him, but the monitor in front of him does not have anything but
15 the transcript which he cannot follow.
16 JUDGE ORIE: Whatever -- whatever is shown on the video of the
17 courtroom, you can see with your own eyes if you are present in this
18 courtroom. So, therefore, there seems really to be -- that seems to be a
19 non-issue.
20 Then we -- please proceed, Mr. Ivetic. You said that should then
21 be functioning this week. The Chamber received reports saying that all
22 the technical problems were fixed so that there was an ample opportunity
23 to use whatever technical facilities that the Defence would need.
24 MR. IVETIC: I believe most of the major issues have been fixed
25 and we have been able to function in the manner in which we previously
Page 20964
1 were not able to function. There are still, I believe, some issues
2 with -- particular issues that --
3 JUDGE ORIE: Okay. Thank you.
4 MR. IVETIC: -- that only arises when someone logs in on the
5 computer.
6 JUDGE ORIE: Yes. If you have any details about that, the
7 Chamber will hear about them.
8 MR. IVETIC: Okay.
9 JUDGE ORIE: We'll move on.
10 At the 98 bis decision hearing, the Prosecution stated that many
11 associated exhibits had not been uploaded into e-court and the Chamber
12 wonders whether this has now been completed.
13 Are there any other remaining e-court-related problems?
14 Associated exhibits, all uploaded by now?
15 MR. IVETIC: They were uploaded for the Defence at the time of
16 the 98 bis. That was the batch that e-court -- the IT had a problem
17 with. I'm told those are all uploaded and I presume that they're
18 searchable to the Prosecution under 65 ter numbers. That would have been
19 batch 108 that we dealt with at the 65 ter conference.
20 JUDGE ORIE: Mr. Lukic.
21 MR. GROOME: Your Honour, while it is true that we do have access
22 to the associated exhibits for the initial witnesses, it seems that there
23 are a large number of exhibits that still are not in e-court and there
24 seems to be a large number of translations which are not in e-court. So
25 as of yet, we're unable to -- to read them.
Page 20965
1 So I think what Mr. Ivetic is saying is true for the first few
2 witnesses but after that is untrue.
3 JUDGE ORIE: I think we earlier discussed during the technical
4 meeting that some 1700 - that was the number was mentioned - were
5 uploaded but there might be a similar number which had not been uploaded
6 yet and since the technical problems seem to have been resolved, the
7 Chamber wonders what happened with the other exhibits still to be
8 uploaded into e-court. What's their number and what's the reason if
9 they're not uploaded that they are not uploaded?
10 Mr. Ivetic.
11 MR. IVETIC: As Your Honour recalls from the 65 ter conference,
12 we indicated that first the documents have to be collated from the
13 various databases that we use and then needed to be checked against the
14 system to see whether they are already in the system and then uploaded,
15 assigned 65 ter numbers, and released. We are in the process of doing so
16 and we hope by the end of this week to have a much better grasp of the
17 number and to see if we are able to complete that task.
18 JUDGE ORIE: Yes. But this is then not caused any further by the
19 technical problems, is it?
20 MR. IVETIC: It is caused by the delay and the in-access that we
21 had for two weeks to use the computers to perform these type of searches.
22 We were unable to operate using e-court so as to check the documents to
23 see if they're in the system, and that was the main problem that -- we
24 therefore had a back-log of work that is in the process of still being
25 dealt with by all members of the staff.
Page 20966
1 JUDGE ORIE: We'll consider the matter, but it is not clear yet
2 whether the delay is exclusively caused by the technical problems we had
3 at the time or whether there are other problems. The Chamber, of course,
4 would like to be informed. If there are any organisational problems
5 or -- then they might need a different response.
6 Mr. Groome, you're on your feet.
7 MR. GROOME: Your Honour, closely related to this is the exhibit
8 list itself. So the exhibit list that was received, the highest 65 ter
9 number on it is 7024, but there are only 1.974 numbers enumerated in
10 that. It also included the word "preliminary" in the exhibit list, so if
11 we could have some clarification about the finality of the exhibit list
12 and how many exhibits we can expect.
13 JUDGE ORIE: Mr. Ivetic.
14 MR. IVETIC: It is a preliminary exhibit list. We said it was
15 going to be a preliminary exhibit list and that we are going to working
16 on uploading the documents that -- once we get them processed. I again
17 having not -- do not know the exact number of documents because there are
18 documents that will be duplicates and there are documents that will be
19 removed upon that review.
20 JUDGE ORIE: And the approximate number would be?
21 MR. IVETIC: I don't have that information, Your Honour. I'm not
22 in a position to give an approximate number.
23 JUDGE ORIE: How many documents are there which you still have to
24 check against duplicates.
25 MR. IVETIC: Thousands.
Page 20967
1 JUDGE ORIE: Thousands is anything between 1.000 and 100.000.
2 Where do we stand approximately.
3 MR. IVETIC: I'm told by my colleagues approximately 3 and a half
4 thousand.
5 JUDGE ORIE: Total number or numbers still not being uploaded in
6 e-court.
7 MR. IVETIC: Still not.
8 JUDGE ORIE: That's approximately the double of what we heard
9 during the technical meeting? I'm afraid that there's more than a
10 technical problem. There seems to be a logistical and an organisational
11 problem. Would the Defence agree with that? Because if so, we might
12 have to not to call the technicians in but to further and more closely
13 monitor what the real problem is.
14 Is there an organisational problem apart from the small delays
15 caused by a technical problem?
16 MR. IVETIC: Your Honour, this is a large case with a large
17 number of documents. We have a large number of tasks that members of the
18 Defence team have been doing in the past several months including meeting
19 with witnesses and trying to locate witnesses and trying to prepare
20 statements for witnesses, Your Honours. It is, you know -- we have a
21 limited number of persons and therefore the work that we do is limited by
22 the number of persons that we have. We don't have a budget for more
23 persons.
24 JUDGE ORIE: It's a long answer but the answer apparently is yes
25 there's not just the technical problem but we are facing other problems,
Page 20968
1 and apparently it's staffing rather than technicians to be blamed for
2 what happens at this moment. The Chamber will further consider the
3 matter.
4 But, Mr. Groome, you're on your feet.
5 MR. GROOME: Is the Defence able to say when they think this
6 process will be finished? We would like to have some idea about when we
7 would expect some -- a more complete exhibit list.
8 MR. IVETIC: As I believe I indicated a few moments ago, we are
9 in the process of doing that and we hope to have by the end of the week
10 more documents uploaded and a new list prepared with those additional
11 documents once they are released in e-court.
12 JUDGE ORIE: Mr. Ivetic, do you really think that the information
13 that by the end of the week you expect more documents to be uploaded to
14 be of any use? I take it that it will not be less, it will not be the
15 same, it will be more. But, of course, what we are trying to find out is
16 where we stand in qualitative terms, and your answers are not of great
17 assistance in getting a better picture of the problem and time needed to
18 resolve it.
19 Mr. Groome, apparently there's no answer yet.
20 Mr. Ivetic, have you considered to upload documents taking the
21 risk that there are duplicates and then strike the duplicates at a later
22 stage? Which is better than to have no documents uploaded. And everyone
23 could even help you in finding duplicates so that we could clean that
24 list as soon as possible.
25 MR. IVETIC: I could do that. The process then of uploading and
Page 20969
1 of removing 65 ter numbers also takes time. I don't know -- that's not a
2 task that I normally do so I don't know how long it takes to actually
3 physically upload a batch of 5.000 pages or thereabouts and if that would
4 assist in things moving faster.
5 JUDGE ORIE: If I don't do things myself, I usually inquire with
6 those who are doing it to find out the details which anyone else would
7 need at this moment.
8 One moment, please.
9 [Trial Chamber confers]
10 JUDGE ORIE: The Chamber will consider during the first break
11 whether a deadline should be set, and if any party would like to -- to
12 say anything about those deadlines, they have an opportunity to do so
13 now.
14 [Defence counsel confer]
15 MR. IVETIC: Your Honour, I think I've been as precise as I'm
16 able to. I don't want to mislead the Chamber or the Prosecution by
17 stating something that I'm not 100 per cent factually accurate about it.
18 JUDGE ORIE: No. But you should have been prepared in such a way
19 that you could give us the accurate factual information.
20 Mr. Groome.
21 MR. GROOME: Your Honour, it would the Prosecution's strong
22 preference that an exhibit list, however imperfect, be filed as soon as
23 possible, recognising that given these problems the Defence may seek to
24 amend by removing duplicates at a later stage. But the Prosecution is in
25 a very difficult position now not knowing what the exhibits are in
Page 20970
1 proceeding, so I think the most fair resolution would be that the Defence
2 file their list, recognising there may be some problems, may be some
3 duplicates, and we'll work with that. At least we can begin our work
4 having the benefit of that.
5 Thank you.
6 JUDGE ORIE: Any response to this suggestion, Mr. Ivetic.
7 MR. IVETIC: Only again to point out that if duplicates are input
8 in the system, it means that someone will have to manually input the
9 description of a document, the 65 ter number, the date, and the language
10 multiple times which will take us longer to do.
11 MR. GROOME: Your Honour, can I just add if have a list, we do
12 have some techniques where we could search that list and then perhaps
13 even assist the Defence in finding duplicates. I can't make any
14 guarantee of that. But having nothing, we don't know what the problem is
15 and we don't if we can assist in any way and we're disadvantages.
16 JUDGE ORIE: So you mean if you have a list even if it's not yet
17 fully uploaded into e-court that at least you'll have something in your
18 hands could you start working with?
19 MR. GROOME: Precisely, Your Honour, and we could try to run some
20 of our procedures to look for duplicates and other problems with the
21 list.
22 JUDGE ORIE: Yes.
23 Mr. Ivetic.
24 MR. IVETIC: I will check to see if we can accommodate that at
25 least in part. I don't know. I don't know.
Page 20971
1 JUDGE ORIE: Mr. Ivetic, if you intend at this moment to upload
2 documents, an exhibit list, in e-court, then, of course, you should have
3 a list of the documents you intend - duplicates or not - to intend to be
4 uploaded into e-court and to be part of the 65 ter exhibit list unless
5 you have not made up your mind yet as to what documents you would like to
6 select. And that's not a technical problem, that's an organisational
7 problem.
8 MR. IVETIC: As I indicated in the Rule 65 ter conference,
9 Your Honours, we have multiple lists. We have a list for every witness.
10 And those individual lists are linked to documents and individual
11 folders. Those documents then need to be digitally uploaded into
12 e-court. The descriptions need to be input in e Scan-IT. And therein
13 lies the problem: We don't have a single list until they are in included
14 into e-court and get a 65 ter number. Before then we have a bulk of
15 documents that are separated by witness that are identified according to
16 the information that we have and that are -- that are digitally
17 segregated or collated to be uploaded into e-court.
18 [Trial Chamber and Registrar confer]
19 JUDGE ORIE: Mr. Groome.
20 MR. GROOME: Your Honour, from the preliminary list we see what
21 appears to be some sequential number of the exhibits. We go up to 7024.
22 If we can simply even have whatever that list is, that sequential list
23 that has that information about the exhibits, at least we can make a
24 start in our preparations.
25 JUDGE ORIE: Mr. Ivetic.
Page 20972
1 MR. IVETIC: There is not a sequential list going up to 7.000
2 exhibits. We had to skip ranges because of the problems we were having
3 with batches. So we had to open new batches. When you open a new batch,
4 we assigned numbers in a higher range so as not to run into them when the
5 upload of the documents from the lists caught up to it; so, for instance,
6 we had maps input into a particular batch and all given numbers in the, I
7 think, 6.000 range, we had documents relating to experts into one range,
8 we had documents relating to international witnesses in another range,
9 and therefore those batches of exhibits -- of 65 ter documents were given
10 65 ter numbers in a different range of thousands of documents so as not
11 to run over with the work of other people since we had multiple people
12 work to go upload to try to accommodate the deadline given the -- given
13 the delay that we encountered.
14 And therefore, we have documents that are listed as 65 ter
15 numbers 1D7000, I think even 1D8000, but that does not mean that we
16 have -- that we have in between those 65 ter numbers assigned for other
17 documents as of yet. We are in the process of collating and then putting
18 those documents according to witnesses. We have multiple lists for those
19 witnesses that we have already been able to organise those documents for.
20 We do not have a central list until it is put into e-court and the 65 ter
21 number is assigned at that point for a unique document and then that is
22 generated and that is what we presented as the preliminary list which we
23 filed the other week.
24 JUDGE ORIE: The Chamber will consider also whether it will
25 instruct the Defence to just put together all the information, copy,
Page 20973
1 paste send it to the Prosecution. I mean, this is not the way which
2 allows for a useful continuation of the proceedings. Therefore measures
3 will have to take. The Chamber will consider it.
4 We'll move on.
5 The Prosecution second response to the urgent Defence motion
6 seeking to enlarge time contains some suggestions. I wonder whether we
7 need to address them, but I'll just briefly go through them.
8 If the Defence would need access to a non-network printer, this
9 could be organised. Any need still for that, Mr. Ivetic?
10 MR. IVETIC: Well, the printers were always -- are mainly
11 functioning -- they're functioning as we speak, so I don't think that the
12 stand-alone printer would at this stage add anything since we usually
13 work with [Overlapping speakers] ...
14 JUDGE ORIE: [Overlapping speakers] ... The simple answer
15 therefore is there is no need for that.
16 MR. IVETIC: Yes.
17 JUDGE ORIE: Yes, there was a suggestion by referencing Defence
18 documents by both their Rule 65 ter number and their doc ID numbers
19 during witness examination. That is a matter, I think, we should also
20 deal with together with the Registry, so I leave it for the time as it
21 is.
22 Weekly technical reports were suggested by the Prosecution. The
23 Chamber doesn't see the need for such a regular reporting schedule. At
24 the same time, it may well be that whenever problems are there, it should
25 be reported, irrespective of a weekly interval, and it now turns out that
Page 20974
1 the Chamber is not updated in detail where it may have -- where there may
2 have been some need to be informed about the problems.
3 The Registrar informs me that although working with doc ID
4 numbers is certainly not ideal, that it -- although imperfect, would
5 still be workable.
6 Mr. Groome.
7 MR. GROOME: Your Honour, at the time the Prosecution made this
8 recommendation it was our understanding that the -- the problems were
9 limited to technical problems. It seems after this morning that there
10 may be additional organisational and staffing problems. So I would amend
11 our proposal to include a weekly report about those until such time as
12 all of the disclosure and all of the obligations by the Defence have been
13 met.
14 JUDGE ORIE: That's understood.
15 I move away from these, I would say technical issues but they
16 turned out to not be technical issues exclusively, and move on to the
17 preliminary issues with regard to the Defence Rule 65 ter (G) witness
18 list.
19 The Chamber would have a few questions. One of the things that
20 was noted by the Chamber is that Prosecution witnesses are included in
21 the Defence witness list. I think we saw some eight Prosecution
22 witnesses appearing on the Defence witness list, and the Chamber wonders
23 what explains that.
24 Mr. Lukic.
25 [Defence counsel confer]
Page 20975
1 (redacted)
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21 (redacted) and I
22 believe RM255, were witnesses that Your Honours relied upon in the
23 Rule 98 bis decision which, of course, indicates to the Defence that
24 Your Honours are not apprising the testimony of these witnesses in the
25 manner that we had expected from the cross-examination, so we then, as
Page 20976
1 Your Honours will recall with RM255, we specifically did not go into one
2 issue with the witness based upon the Prosecution stating that they were
3 not going to be relying upon that evidence. And now we come to a
4 situation where the witness is viewed as a credible witness despite that
5 incredible aspect of his testimony that we did not address in
6 cross-examination. With RM019, that is the situation that my colleague
7 has just described and that is that witness.
8 So in relation to the witnesses that we put on the list to call
9 back, it was information that arose after they had testified here and
10 after they had been cross-examined. I am aware of, I believe, four that
11 fall into category, so I don't know the remaining four that Your Honours
12 make reference to, whether those are indeed the document analyst that
13 Mr. Lukic has mentioned and any one additional. I don't know the
14 entirety of -- of witnesses on our list who would have been Prosecution
15 witnesses.
16 JUDGE ORIE: But wouldn't it be appropriate under those
17 circumstances, Mr. Ivetic, to explain why the Defence wishes to call
18 those witnesses against and seek permission to do that?
19 MR. IVETIC: And I believe we did that in the summary on the
20 65 ter list, Your Honours. It lists for those witnesses precisely.
21 JUDGE ORIE: But just putting reason on the list, is that asking
22 for permission? There seems to be some --
23 MR. IVETIC: I understand now. Yeah, no. I -- I --
24 JUDGE ORIE: You should have just filed --
25 MR. IVETIC: -- we should ask you to petition the Chamber.
Page 20977
1 JUDGE ORIE: -- a request to be allowed to re-call witnesses that
2 have been called again and giving the reasons for that so that you,
3 depending on what the Chamber would decide, then can put those witnesses
4 on your witness list. That's the appropriate procedure.
5 And therefore either strike them or make such a request, I would
6 say.
7 [Trial Chamber and Legal Officer confer]
8 JUDGE ORIE: And if you want the numbers, we -- the -- one
9 second, please.
10 [Trial Chamber and Legal Officer confer]
11 JUDGE ORIE: The Chamber is talking about the entries on your
12 list, number 63, 68, 93, 127, 166, 229, 253, and 262, so I'm referring to
13 the entries on the exhibit list.
14 Mr. McCloskey, you're on your feet.
15 MR. McCLOSKEY: Thank you. Good morning, Mr. President. Could
16 we go into private session just briefly.
17 JUDGE ORIE: We move into private session.
18 [Private session]
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Page 20978
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16 [Open session]
17 THE REGISTRAR: We're in open session, Your Honours.
18 JUDGE ORIE: Thank you, Madam Registrar.
19 A few more questions about the witness list.
20 First, some witnesses are not named; I'm referring to entries
21 116, 313, and 314. Any explanation for that, Mr. Lukic.
22 MR. LUKIC: [Interpretation] The information we received about
23 these three witnesses made us - in fact forced us - to ask for a
24 postponement. It's characteristic for the Witness RM313 --
25 Could we please go into private session.
Page 20979
1 JUDGE ORIE: We move into private session.
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8 [Open session]
9 THE REGISTRAR: We're in open session, Your Honours.
10 JUDGE ORIE: Thank you, Madam Registrar.
11 Time estimates, Mr. Lukic, are missing for entries number 45, 62,
12 78, 104, 149, 171, 221, 260, 263, and 314.
13 Any explanation for not having any allocated time estimates?
14 MR. LUKIC: I can answer for 314 easily; it's 92 bis, I think.
15 And about the rest, I should -- I should check.
16 JUDGE ORIE: Let me have a look.
17 Yes, you're right, 314 is 92 bis, so that's mistake on our part.
18 And the estimate is zero, therefore.
19 And the others you said ...
20 MR. LUKIC: As you --
21 JUDGE ORIE: You should check. Could you please do so as quickly
22 as possible.
23 MR. LUKIC: Thank you, Your Honour.
24 JUDGE ORIE: There are also a few witnesses where there are
25 missing modes of testimony, and I'm referring to entries 127 and 263, I
Page 20984
1 think, but let me just ...
2 Any explanation for that?
3 MR. LUKIC: Not right now, Your Honour.
4 JUDGE ORIE: Yes.
5 Okay. Now we -- I would like to raise the following matter. We
6 have received some Rule 92 ter motions and we have received these witness
7 [indiscernible]. Now, the time allocation does not always correspond,
8 which, of course, confuses us. If, for example, for witness entry number
9 5 the witness list says 45 minutes but the time in the 92 ter motion is
10 30 minutes, then we -- perhaps we could be happy that less sometime
11 needed, but if we would then go to entry 42, it's just the opposite way
12 around. There are at least a number -- of the only limited number of
13 92 ter motions we have received, I already have 12 or 13 not
14 corresponding time estimates. Even going up three times ... three times
15 the indication from the witness list in the motion.
16 MR. LUKIC: I think that everybody would be happier if we go with
17 a shorter time. And if it's in the motion 30 minutes, it would be 30
18 minutes.
19 JUDGE ORIE: No, I mean to say, entry 150, the witness list gives
20 60 minutes and the time referred to in the motion is 180 minutes. That's
21 two more hours. Three hours instead of one.
22 [Defence counsel confer]
23 MR. LUKIC: Well, then, again, we'll go with the shorter time, 60
24 minutes, since --
25 JUDGE ORIE: Okay. So we can always take the shortest time. So
Page 20985
1 instead of 92 ter 180 minutes --
2 MR. LUKIC: Yes.
3 JUDGE ORIE: -- we can take 60 minutes. Yes, of course --
4 MR. LUKIC: I can explain if you need further explanation --
5 JUDGE ORIE: Well --
6 MR. LUKIC: -- why that happened.
7 JUDGE ORIE: Well, I take it that's a matter of co-ordination
8 and -- and that is especially what is of great concern to the Chamber.
9 But if you wanted to say more about it, please do so.
10 MR. LUKIC: We were anticipating to have this witness viva voce
11 instead of mixture of 92 ter and viva voce, and you are right there was
12 lack of co-ordination between two branches of our team and that's why
13 this confusion was made.
14 JUDGE ORIE: Yes. Although we did it, the Chamber doesn't find
15 it its duty to compare all the lists and to clarify what seems to be
16 rather chaotic.
17 MR. LUKIC: We accept that and we are grateful for your efforts,
18 Your Honours.
19 JUDGE ORIE: Mr. Groome.
20 MR. GROOME: Do I understand correctly then that the 92 ter
21 motion is being with withdrawn at this stage? I'm confused as to where
22 we are at the moment.
23 MR. LUKIC: No, you do not have to understand it that way. He
24 will testify as a mixed witness and we do not raise the time necessary
25 for his direct. So 60 minutes with 92 ter motion.
Page 20986
1 JUDGE ORIE: Okay. That brings me to my next item on the list.
2 I would like to recall that the Chamber gave guidance at the
3 beginning of the Prosecution case that the examination-in-chief of
4 Rule 92 ter witnesses should generally last 30 minutes, not more. The
5 Chamber noticed that a number of witnesses on the Defence witness list
6 have an estimated examination-in-chief time of one hour or more although
7 being 92 ter witnesses. So apparently it seems that you have ignored,
8 more or less, this limitation.
9 MR. LUKIC: I'm sorry if you understood it, Your Honours, that we
10 ignored your guide-lines, but in the time-period we have -- we had,
11 actually, in the field, we were able only to meet with the witness once.
12 And we expect that it might occur that he will tell us during the
13 proofing before the testimony something else or something more. So
14 that's only the reserve those usually extra 15 minutes. Usually most of
15 them, mixture witnesses, 92 ter and viva voce, and according to our list
16 are scheduled for 45 minutes. If there is nothing new, and we hope there
17 wouldn't be anything new, then we would, of course, stick with the
18 guide-lines and lead our mixed witnesses only for 30 minutes.
19 JUDGE ORIE: Yes. It's of some concern to the Chamber that you
20 qualify them already as mixed witnesses because the witness expects
21 92 bis witness, 92 ter witnesses, or viva voce witnesses where the
22 Chamber accepts that there's always a possibility that something new
23 comes up, but already to qualify them from the beginning as mixed
24 witnesses saying that they may come up with something new confuses the
25 system, and, therefore, the Chamber would like you to work on the basis
Page 20987
1 of 92 ter or viva voce rather than --
2 MR. LUKIC: I don't know whether we were confused by the -- our
3 case where the Prosecution called them 92 ter viva voce or by Karadzic
4 case, where -- and -- yeah, it's Milutinovic case also, both Mr. Ivetic
5 and I were --
6 JUDGE ORIE: Yes. This Chamber works along the lines set by this
7 Chamber, and there are some slight -- there are some slight variation
8 between the way in which chambers work. If you would compare some of the
9 experience counsel may have had in cases I earlier presided over,
10 especially in view of 92 ter, you'll see that this Chamber has taken an
11 approach which is not exactly the same, and we work on the basis of our
12 guidance.
13 Okay. I leave it for the time. But 92 ter witnesses are still
14 under the guidance of the 30-minutes' rule.
15 Then -- but perhaps we would go into private session for the next
16 two items, I would deal with, the last matters on the witness list.
17 [Private session]
18 (redacted)
19 (redacted)
20 (redacted)
21 (redacted)
22 (redacted)
23 (redacted)
24 (redacted)
25 (redacted)
Page 20988
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9
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12
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Page 20989
1 (redacted)
2 (redacted)
3 (redacted)
4 [Open session]
5 THE REGISTRAR: We're in open session, Your Honours.
6 JUDGE ORIE: Thank you, Madam Registrar.
7 Mr. Groome you're on your feet, even before the break.
8 MR. GROOME: Your Honour, just to -- I rise. It seems that the
9 Chamber is concluding its discussion of witness list.
10 Could I ask over the break that the Defence consider whether
11 GRM086 and GRM329 are in fact the same person. They appear to us to be.
12 JUDGE ORIE: For this reason alone, we'll take a break a little
13 bit longer so as to afford such time.
14 We'll resume at 11.00.
15 --- Recess taken at 10.35 a.m.
16 --- On resuming at 11.06 a.m.
17 JUDGE ORIE: The Chamber will deal with a few matters we
18 discussed before the break.
19 As far as Prosecution witnesses appearing on the Defence witness
20 list is concerned, I think I said strike them or make an application to
21 re-call them. Now, that was not very accurate. My language was not
22 accurate. Because they have to be stricken anyhow, because even if you
23 would re-call them, they should not be on the Defence exhibit list. They
24 are still Prosecution witnesses to be re-called for further examination.
25 I clarify this so that the position of those witnesses is clear.
Page 20990
1 MR. LUKIC: Thank you, Your Honour.
2 JUDGE ORIE: Then since the -- apparently the reasons why the
3 Defence would wish to re-call them, if they do not -- after they've
4 stricken them any of how, since these reasons are known already, the
5 Chamber expects any application for re-call of those witnesses to be
6 filed before the summer recess. Because you apparently have made up your
7 mind as to why you would wish to re-call them, so, therefore, we are not
8 going to wait until the end of the case. It would be -- it's
9 appropriately done short-term; that is, before the summer recess.
10 Then I think I earlier already withdrew the observation that for
11 Witness 314 no time estimate was given. Rightly, the Defence brought to
12 our attention that it was a 92 bis witness. The same is true for
13 witnesses entry numbers 45, 104, and 149. So for four witnesses it's now
14 perfectly clear why there is no time estimate because they're 92 bis
15 witnesses. However, the remaining four are still not explained. And I
16 would say that there even are a remaining five because it's all together
17 not eight witnesses but nine witnesses for which no time was indicated.
18 Number 64 is the one to be added to the remaining four.
19 Mr. Lukic.
20 MR. LUKIC: I hope you'll give us a couple of days so we can --
21 JUDGE ORIE: Yes --
22 MR. LUKIC: -- give it the time. But I -- probably those are
23 92 ter witnesses.
24 JUDGE ORIE: A couple of days is okay. But, of course, we need
25 the witness list to be -- to become final. But I'll deal with that in a
Page 20991
1 second.
2 As far as the unnamed witnesses are concerned, the --
3 One second, please.
4 [Trial Chamber and Legal Officer confer]
5 JUDGE ORIE: I'm sorry, I made a mistake. When I referred to
6 Witness 64 as the ninth, it was a witness actually which was not --
7 should not be added to the lists where there is no time estimate but it
8 should be added to the list of Prosecution witnesses which still appear
9 on the list and should be stricken from the list of the Defence witnesses
10 and an application to re-call them to be made.
11 [Trial Chamber and Legal Officer confer]
12 JUDGE ORIE: I mixed up a few things. First of all, I repeat
13 that the ninth witness which appeared on the Defence witness list but was
14 an OTP witness was number 64.
15 Now, the witnesses for which still a estimate of time is missing,
16 I just mention them now leaving out the 92 bis. The remaining witnesses
17 are entry 62, 78, 171, 221, 260, and 263.
18 That's now complete.
19 I think I started talking about the anonymous witnesses. The
20 Chamber will not accept any witness on the witness list which is without
21 a known name. That means that if the names are not known that, that at
22 this moment they should be removed from the witness list, and if there's
23 any reason to add them later, the usual procedure applies; that is, the
24 party should seek the approval of the Chamber to add them again to the
25 list and give the reasons for the late addition.
Page 20992
1 The Chamber sets a date for the witness list to be filed, and
2 that is the 16th of May - that is, this Friday - close of business.
3 The Chamber has taken notice of what Mr. Lukic said, that if
4 there's any discrepancy between the time estimates in either 92 ter
5 motions or the witness list, that we can rely on always the shorter time;
6 but, Mr. Lukic, in your new witness list, that should become clear
7 already anyhow.
8 I now move to the exhibit list.
9 Filing an exhibit list does not necessarily require all the
10 documents to be uploaded in e-court. These are two separate things. The
11 one is a technical way of dealing with documents in the e-court system;
12 but the primary purpose of filing an exhibit list is to inform the other
13 party about the exhibits the Defence intends to use.
14 Now, if there's no consolidated list yet, and if there is no
15 consolidated list by this Friday, then the Defence should take care that
16 there is a list with duplicates, or not, but the list should be there and
17 should be filed. And if it's, at this moment, still spread over several
18 list, then you put it together with all the risks of duplicates. But the
19 Prosecution is entitled to know what is on that list. That should be
20 filed on the 16th of May. If there are any exhibits later to be used not
21 appearing on that list, the usual procedure applies that the Defence
22 would have to ask for aiding any documents to its exhibit lists and to
23 give the reasons for the late addition to that list.
24 The Chamber understands that filed in this way, that, in the
25 future, some exhibits may be removed because they're duplicates; that
Page 20993
1 is -- the Chamber is aware of that. But we'll not refrain from, at this
2 moment, requiring the Defence from filing an exhibit list.
3 16th of May, close of business.
4 As far as the weekly reporting is concerned, the Chamber has
5 serious concerns about what it heard this morning, and it will closely
6 monitor in court the progress on the issues discussed this morning but
7 will not do that by requiring a written report every week, but whenever
8 there is an issue, we'll actively inquire with the parties where we
9 stand, what has to be done, et cetera.
10 Finally, as far as the --
11 One second.
12 [Trial Chamber confers]
13 JUDGE ORIE: And if we inquire into these matters, of course it
14 should be clear that the Defence should be prepared to give the
15 information. Not to say, I don't know, or someone else deals with it.
16 The Defence should be on top of what happens or what happened when the
17 Chamber asks for information.
18 Finally, I earlier emphasised that uploading into e-court is a
19 very practical thing and important to be done but would not -- if it's
20 not complete yet would not obstruct in filing an exhibit list, but the
21 Chamber was informed that from the logs kept by ITSS that it only
22 happened once that a batch could not be uploaded in e-court and that
23 there was a problem there; whereas, all the other attempts apparently did
24 not create similar problems. I'm stating this clearly because we should
25 distinguish between technical problems and, as I said, organisational
Page 20994
1 problems the Defence may face.
2 These were the matters I would like to -- that go back to what we
3 discussed before the break.
4 If there's any update by the parties on any matter before the
5 break, the Chamber would hear them now and otherwise we'll proceed with
6 the agenda.
7 Then we'll proceed with the agenda.
8 Yes, the Chamber will have to decide on matters under
9 Rule 73 ter. The Defence has been requested to call 336 witnesses, apart
10 from a few to be stricken anyhow, but the Defence did not, in accordance
11 with Rule 65 ter (G), specify the total number of hours it is requesting.
12 The Chamber has calculated, not yet considering the witnesses who have to
13 be stricken from the list, but based on that Rule 65 ter witness list as
14 it was filed until now, that the Defence requests over 300 hours to
15 examine its witnesses.
16 Now, the Defence certainly will be aware that in cases involving
17 a single accused the Defence often is granted even less time than the
18 Prosecution. In this case the Prosecution used 207.5 hours, and the
19 Defence should expect certainly not more - rather, less - time than those
20 207.5 hours on the basis that the burden is on the Prosecution to prove
21 its case beyond a reasonable doubt. And the Chamber invites the Defence
22 to express itself on the 300 hours against the 207.5 hours and what it
23 intends to do about it, because, as I said, it would be fair to expect
24 certainly not more than the number of hours granted to the Prosecution.
25 Mr. Lukic.
Page 20995
1 MR. LUKIC: [Interpretation] Thank you, Your Honour.
2 I have prepared something in B/C/S. With regard to the number of
3 hours that the Defence requested, we have to say that, pursuant to
4 Rule 98 bis, we wanted to exclude some of the incidents from the
5 indictment. However, we know that everything that the accused has been
6 charged with remains. One of the reasons why we need so many hours is
7 that we have to call all the witnesses for all the counts in the
8 indictment. The OTP had over 200 hours viva voce. They had over 200
9 witnesses pursuant to Rule 98 bis. We have to respond to the statements
10 pursuant to Rule 92 bis, because we have not been allowed to
11 cross-examine those witnesses that have been proposed and accepted
12 pursuant to Rule 92 bis.
13 Obviously we're not sure that we will bring all the witnesses
14 that we have proposed. However, we have to reserve both the time and a
15 place for all of them. For example, in the Karadzic case, the defence
16 spent over 350 hours all together. Some of the witnesses testified in
17 the Karadzic case and in our case they are 92 bis witnesses and we have
18 to respond to their statements. To be honest at this moment we don't
19 know and we do not have a conclusive list of all the witnesses who have
20 been accepted pursuant to Rule 92 bis that the Prosecutor proposed. The
21 Prosecutor has filed a lot of submissions, and, at this moment, we don't
22 know the exact number of the witnesses.
23 I'm sure that there will be changes and amendments to that list
24 and to the number of hours. I can say that, in the meantime, one of the
25 witnesses has died and his statement will be included pursuant to Rule 92
Page 20996
1 quater. We hope that during our case we will also be able to have some
2 of the witnesses accepted pursuant to Rule 92 bis. However, at this
3 moment, we don't have all of their statements and we cannot make a
4 decision on that issue.
5 Today we have dealt with the issue of 92 ter witnesses and their
6 testimonies. We will make adjustments in that sense and this will also
7 drastically reduce the time. So if we have the right to examine the
8 witness, although he is not a 92 ter and viva voce witness, I believe
9 that most of such witnesses denoted as "mixed" will become witnesses
10 pursuant to Rule 92 ter, and they -- the time for their testimony will be
11 30 minutes, as has been ordered today by the Trial Chamber. And this
12 would be more or less all that we can say on this issue. This is our
13 explanation for the number of hours that have been requested.
14 So even if the number of hours is restricted, with all due
15 respect, we would kindly ask that our -- the number of our witnesses is
16 not restricted. We will condense the time, but we will still want to be
17 able to make decisions as to what witnesses to bring. And, as I've
18 already told you, at this moment, we do not really know whether we will,
19 indeed, need to bring all of the witnesses.
20 Thank you.
21 JUDGE ORIE: Thank you, Mr. Lukic.
22 First of all, even if you have not take a statement yet, of
23 course, it's finally for the Defence to head either for 92 bis or 92 ter.
24 I mean, it's not -- you don't have to wait until everything is completed.
25 And then it's your own approach which allows you to say -- and if one out
Page 20997
1 of 20 or 30 witnesses would move from 92 ter to 92 bis, that's, of
2 course, what happens now and then about. But the overall approach shows
3 at this moment that you have hardly any 92 bis witnesses and almost all
4 of them 92 ter or viva voce. That is different from what the Prosecution
5 did.
6 Now, it's up to the Defence to use the time as they wish, but I
7 understand your submission. If you reduce the time, that is acceptable,
8 but please do not reduce the number of witnesses so that you have still
9 some flexibility in, for example, moving quite a number of witnesses to
10 92 bis or reducing their time as viva voce witnesses.
11 That is ...
12 [Trial Chamber confers]
13 JUDGE ORIE: If you say, We have to respond, we would have
14 expected that after the Rule 98 bis decision, we would have to deal with
15 less of the charges, of course, this more or less ignores that the
16 Prosecution was in a similar position and had to prove or at least
17 present evidence on all the charges, and if you would say after the
18 98 bis decision there would be far less remaining, that would then
19 justify a considerable reduction of the time the Defence would need,
20 compared to the time the Prosecution used.
21 But let's stay out of that. The Chamber will consider whether
22 there's -- what time would be granted, whether it would be the same as
23 the Prosecution. The Chamber also expects a witness list to be filed --
24 a new witness list to be filed this Friday, and we'll let you know in
25 advance, most likely later today, what will be the number of hours, and
Page 20998
1 if we would also limit the number of witnesses, what that number would
2 be.
3 The Chamber -- the Defence will be informed about it ...
4 [Trial Chamber and Legal Officer confer]
5 [Trial Chamber confers]
6 JUDGE ORIE: We'll, without undue delay, inform the Defence on
7 our decisions in this matter.
8 Mr. Groome, was there anything you'd like to add there.
9 MR. GROOME: Yes, Your Honour, with respect to the number of
10 witnesses, there are two categories of witnesses that the Prosecution has
11 some concern that they're on the list; so, for example, there are some
12 witnesses that seem to relate to facts that have already been agreed.
13 So, for example, in the 4th of June, 2013, there is a filing in which the
14 Prosecution entered into agreement with the Mladic Defence that on
15 16th July, 1995, Mr. Mladic attend add wedding. When we review the list,
16 we see that both the bride and the groom as well as the videographer from
17 that wedding are intended to be called. We don't understand what the
18 relevance is given that we've agreed to that fact --
19 JUDGE ORIE: It was one of the points the Chamber --
20 MR. GROOME: Oh, I'm sorry.
21 JUDGE ORIE: -- would have raised again, but -- about those same
22 days, but we saw that, I think the -- there was someone on the list who
23 could testify about where Mr. Mladic stayed overnight when he was in
24 Belgrade. That is a fact which is agreed between Prosecution and
25 Defence, so the Chamber also wondered -- and that's apart from the
Page 20999
1 wedding, is a similar detail which we noticed. But before I give you an
2 opportunity, Mr. Lukic, I would first like to allow Mr. Groome to finish
3 what he started to bring to our attention.
4 MR. GROOME: Your Honour, the second category of witnesses that
5 causes us some concern, and there seems to be quite a few of them, are
6 witnesses that provide what is -- is commonly known as tu quoque
7 evidence. For example, RM180 appears to be a victim of a rape that
8 occurred in a prison in Sarajevo. We have trouble struggling to
9 understand how it would be relevant to any of the Chamber's task in
10 adjudicating this indictment or any of the charges in the indictment.
11 Our concern of the anguish it might causes the witness and, of course,
12 with so many witnesses addressing tu quoque evidence, it could be of
13 considerable use of court time which ultimately will prove to be
14 unnecessary in the Chamber's deliberations.
15 JUDGE ORIE: Mr. Lukic, therefore, two issues. The one is what
16 has been agreed upon already by the parties and that at least for the
17 time in Belgrade I would agree that it would cover, well, at least, a
18 number of witnesses who are announced to testify about what happened in
19 those days in Belgrade, whereas from the agreed facts there was one issue
20 remaining that was at what time Mr. Mladic on 17th of July would have
21 left Belgrade and be back in Crna Rijeka. But much of it is already in
22 the agreed facts.
23 And the second issue raised by Mr. Groome is a general issue.
24 That is the relevant of tu quoque evidence, especially to call witnesses
25 to appear before this Court to testify about what Mr. Groome considers to
Page 21000
1 be tu quoque evidence.
2 Could you briefly respond to that.
3 MR. LUKIC: Your Honour, the 16th of July, I think that there are
4 some issues about the time when Mr. Mladic left Belgrade. I think that
5 the Prosecution is still claiming that he left Belgrade on the 16th and
6 the Defence is claiming that he left Belgrade on the 17th in the morning.
7 And I see Mr. McCloskey nodding, agreeing, seeing he is the best
8 knowledgeable about the issue.
9 And regarding tu quoque issue, I can tell you what was the
10 overall situation in which crimes occurred, it's not the same if the
11 crime it was organised, ordered, or if it's a consequence of revenge as
12 we pointed out from the beginning of our case. That the revenge and over
13 circumstances might influence the commission of the crime. Not only
14 whether somebody is a member of police or military or paramilitary but
15 also there are certainly acts of revenge during the war. And if you want
16 to connect those acts of revenge, we have to know the whole situation at
17 that time in that area.
18 So we do not consider it that it's tu quoque Defence. It's not.
19 But we want to show you the whole picture. That's the only intention we
20 have.
21 JUDGE ORIE: Yes. Now, it's still not easy to understand.
22 Mr. Groome gave one example, that if a witness appears to have been a
23 victim of a rape that occurred in a prison, how that links directly to
24 what seems to be the core of the Sarajevo case, that is, indiscriminate
25 shelling, et cetera, unless you establish clearly that -- or sniping,
Page 21001
1 that the one has caused the other which is not immediately understandable
2 without further explanation.
3 And apart from that, Mr. Lukic, isn't it true that, especially
4 background information, what may have caused another thing, what may have
5 been in the background, that that is specifically mentioned as the type
6 of evidence which can be presented through 92 bis. And I do not know to
7 what extent there is a challenge to that evidence. It's the relevance
8 which is primarily raised by Mr. Groome.
9 MR. LUKIC: Your Honour, I have to go back to this witness
10 temporarily marked as GRM180. That's not the only issue she would be
11 testifying. She would testify about the overall situation in Sarajevo
12 city during conflict. Condition -- condition regarding paramilitary
13 units, lack of food, water, and electricity on obviously all sides.
14 So it's only the last issue she would testify on is about her
15 rape. And that probably would be placed together with everything else to
16 have the whole picture.
17 JUDGE ORIE: We've heard your explanation.
18 Mr. Groome, anything to add to that? I understood it not that it
19 would be an incident or one thing where you need a bit of more background
20 evidence to be presented but an overall impression that there was lot of
21 what you consider to be tu quoque.
22 MR. GROOME: Yes, Your Honour, and just looking at the summaries,
23 and we're somewhat hindered by not having the statements, which hopefully
24 we'll deal with later this morning, but I certainly perhaps -- well, I
25 know that the Prosecution will most definitely in response to specific
Page 21002
1 92 ter applications will be raising this issues with respect to
2 individual witnesses after we've seen the statements.
3 JUDGE ORIE: Thank you.
4 Then I would like to move on.
5 Mr. Lukic, perhaps you could consider through the use of 92 bis
6 to be a bit more to expound on that.
7 The Chamber also noticed that there seems to be some repetition
8 in the proposed evidence sometimes in, for example, a number of expert
9 witnesses on a history of a region, and I'm specifically referring to
10 three -- entries 331, 332, and 336.
11 We dealt already with the agreed facts. The way in which you
12 have presented some of the evidence of those witnesses who can tell us
13 about Belgrade certainly overlaps considerably with what was already
14 agreed.
15 And sometimes extensive time as seems to have been reserved, for
16 example, ballistic reports, many, many hours, ten hours, for example,
17 where you would except to read the most relevant information in their
18 report, rather than in -- to hear it in the examination-in-chief of those
19 witnesses. These are just a few suggestions that might assist you in
20 reconsidering the time you are claiming for Defence witnesses.
21 As I said before, we need a consolidated witness list by the 16th
22 of May, and you should consider that all the guidance the Chamber gave
23 should be clear -- that you took that seriously, should be clear from
24 that new witness list; that is, no anonymous witness, et cetera.
25 Anything else on witness lists? If not, I'll move on.
Page 21003
1 The next item is whether there will be a Defence opening
2 statement.
3 Mr. Lukic, is it the intention of the Defence to make an opening
4 statement; and, if so, how much time you would need for that.
5 MR. LUKIC: We'll start saving Court's time from there. We are
6 not going to have our opening statement. We'll proceed with the
7 witnesses immediately.
8 JUDGE ORIE: Yes. Immediately --
9 MR. LUKIC: As of next Monday.
10 JUDGE ORIE: Yes. That's Monday, the 19th of May. I also
11 understand this as no application for Mr. Mladic to make an unsworn
12 statement, which, by the way, is not in the Rules anyhow, but the Chamber
13 is aware that sometimes some chambers considered that beyond what is the
14 Rules that it would be allowed anyhow. But there is no application for
15 that either. That is clear.
16 As I said before, the exhibit list should be filed 16th of May.
17 I move to the next item: Expert reports.
18 Mr. Lukic, could you give us any indication as when you intend to
19 file your first expert report.
20 MR. LUKIC: I know that the ballistic expertise is pretty much
21 done, just adjusted to our exhibit numbers, I think. That's what had to
22 be done, and some new documents that occurred during our trial were
23 incorporated. So we are the closest to submit those expert reports, and
24 they are probably the most detailed, but the Prosecution had the -- a
25 chance to see similar from the same people, and presented in Karadzic
Page 21004
1 case.
2 So there wouldn't be big differences in between those two.
3 JUDGE ORIE: Yes. That is clear. Now we do not only have
4 ballistic experts. Could you give an estimate on, for example, ballistic
5 experts within the next four weeks or next six weeks --
6 MR. LUKIC: Four weeks definitely.
7 JUDGE ORIE: But for the other witnesses, could you also perhaps
8 include in your filing to say we expect expert witness on background --
9 regional background, for example, by early September or -- so that we
10 have an overview of what reasonably could be expected in terms of expert
11 reports well in advance.
12 MR. LUKIC: Yes, Your Honour, I really have no idea and now I
13 have to call the experts back to inquire.
14 JUDGE ORIE: Yes. Yes, that's -- of course, I wouldn't expect
15 you to do that. If -- by, for example, if you could include that in a
16 filing by this Friday or if it would be the second half the next week, it
17 would not be a major problem for the Chamber. But at least that we have
18 a bit of an idea on what to expect when.
19 MR. LUKIC: We'll do so.
20 JUDGE ORIE: Yes.
21 MR. LUKIC: Thank you.
22 JUDGE ORIE: So then I set a deadline until Friday, the 26th --
23 no, the 23rd of May. That is, the end of the week where we start hearing
24 the evidence.
25 Then Rule 67 disclosure. It has already been referred to
Page 21005
1 earlier.
2 The Chamber, in our order of the 26th of February, we have
3 ordered that the Defence shall perform its disclosure obligations
4 pursuant to Rule 67(A) of the Rules no later than the 5th of May, 2014.
5 And there were informal communications from the Prosecution to
6 the Defence earlier this month, pursuant to which the Prosecution
7 asserted that the Defence had not performed its disclosure obligations.
8 Of course, we touched upon it already although in a bit marginal
9 way earlier, but I would first like to invite the Prosecution to make
10 further submissions on this issue.
11 MR. GROOME: Your Honour, simply to say that I agree with what --
12 the Chamber's recounting of the procedural history of this particular
13 matter. As of last Monday we did not receive the -- the disclosure that
14 we were entitled to receive, made several attempts over the course of the
15 week to try to reach Mr. Lukic unsuccessfully to try to identify what the
16 problem was and to find out when we would receive it. As I'm standing
17 here, we still have not received that disclosure nor have we had an
18 explanations or any type of plan proposed as to when we would receive it.
19 JUDGE ORIE: Mr. Lukic.
20 MR. LUKIC: A bit confusion my side.
21 [Interpretation] I will speak in B/C/S again.
22 First of all, we have been following the practice that was
23 adopted by a different Chamber in the Karadzic because the cases are
24 similar, the indictments are approximately the same, and the scope of the
25 Defence is the same. We were following the practice of having the
Page 21006
1 statements signed 48 hours before the testimony.
2 Today we are able to say that over the past few day we have
3 managed to collect signatures for the statements that have already been
4 submitted for translation for the first few witnesses; I believe for two
5 weeks' worth of witnesses, approximately. You will see that are no
6 changes in the statements. They are the same statements. We have sent
7 them for translation, and we thought that by sending them for
8 translation, we have, in fact, disclosed the statements we are going to
9 use. It's just that with this number of people and the position of the
10 team that is in Belgrade --
11 JUDGE ORIE: One second. Perhaps I didn't understand you well.
12 You said by sending the statements for translation, you, in fact,
13 disclosed the statements which you are going to use.
14 Well, CLSS may then be aware of the statement, but disclosure is
15 about the other party in the proceedings who is not aware at all and will
16 not be informed about what you sent for translation. Apart from that,
17 they're entitled to receive that in one of the official languages of the
18 Tribunal - that is, English or French - because otherwise they can't work
19 with it.
20 Disclosure is a vehicle which allows the other party to proceed
21 in preparing for their position at this stage of the proceedings. So,
22 therefore, I'm a bit surprised that you consider sending a document for
23 translation as disclosure to the Prosecution.
24 MR. LUKIC: [Interpretation] I was not clear enough; I apologise.
25 All those statements were disclosed to the Prosecutor in time through a
Page 21007
1 92 ter submission. They have been translated within the time stipulated
2 by the Rules. So they did receive the statement on time, the statements,
3 in fact, except that they were not signed, so we were not late with
4 disclosing the statements we are going to use. The statements were
5 provided in both languages within the 92 ter submission, and they were
6 all filed within due time.
7 JUDGE ORIE: Well, this leads me to two short observations.
8 First of all, although you have to file a statement with a 92 ter
9 motion, you're supposed to disclose the statement of any witnesses if you
10 want to use that statement earlier; that is, the Rule 67(A) disclosure.
11 So to say it's in time, well, that's at least arguable whether it is or
12 is not. That's one.
13 The second issue is, and that seems to be one of the issues that
14 is of some concern to the Prosecution, that the Prosecution fears that if
15 they receive an unsigned statement that they will face at a later stage a
16 statement which is considerably different from what was initially
17 presented. I do understand that as far as the second issue is concerned
18 that you say, Well, the late signature is mainly for practical reasons,
19 and, until now, has not led us to believe that there will be significant
20 changes.
21 Now, if that would be the case, Mr. Groome might have less
22 concerns if this would be practice for the year to come. Mr. Groome
23 might have less concerns but he is not convinced yet that he has a
24 proper -- that he can expect that to happen.
25 Mr. Groome.
Page 21008
1 MR. GROOME: Your Honour, there are really two issues that we're
2 talking about here.
3 One is the compliance with Rule 67, and then whether that -- with
4 the 92 ter applications and whether disclosure obligations of the Defence
5 have been met with unsigned draft statements. I'm going to ask
6 Ms. Bibles to deal with that particular issue after I address the Chamber
7 on the question of disclosure.
8 It seems -- I'm not sure that Mr. Lukic appreciates the full
9 boundaries of his obligation. Under Rule 67(A)(ii), they're obliged to
10 provide the Prosecutor copies of statements, if any, of all witnesses
11 whom the Defence intends to call to testify at trial and copies of all
12 written statements taken in accordance with 92 bis and Rule 92 ter.
13 Yes, Mr. Lukic, the Defence have provided approximately 16 or 18
14 draft statements mostly, I think we have one signed statement, for the
15 first set of witnesses, but for the remainder of the 336 witnesses we
16 have not received anything. And we're entitled to have that so we can
17 see what the Defence case is with respect to people from the
18 Ilidza Brigade or a particular crime. We're entitled to have that so we
19 can formulate our response to the Defence and that's the -- the -- it's
20 those other missing statements that I'm referring to.
21 JUDGE ORIE: Yes, that's why I made that distinction in the
22 beginning.
23 Mr. Lukic, could you inform us on how many witness statements do
24 you have at all? I mean, you are asking for 336 witnesses, how many
25 witness statements do you have or how many transcript excerpts if want to
Page 21009
1 lead the witness through a 92 ter -- from how many witnesses do you have
2 them?
3 MR. LUKIC: Immediately when we have the statement, we send it --
4 JUDGE ORIE: That's not an answer to my question. My question
5 was -- [Overlapping speakers] ...
6 MR. LUKIC: [Overlapping speakers] ... all we have, we sent
7 already to the Prosecution --
8 JUDGE ORIE: So you're telling us that you have less than 20
9 statements of the 336 witnesses you intend to call? And you still are
10 saying, are seriously telling us that you are fulfilling your obligations
11 in time?
12 MR. LUKIC: The way I read the Rule is that we have to give that
13 to the Prosecution all we have. That's all we have at this moment.
14 JUDGE ORIE: If a statement is not there, of course, that creates
15 and we have case law on that.
16 [Trial Chamber confers]
17 JUDGE ORIE: Well, there is, of course, a situation where
18 sometimes, perhaps, a statement has not been taken yet; but, under the
19 Rule, at the very beginning:
20 "Copies of statements..." - if any, it really says, I agree with
21 that - "...of all witnesses whom the Defence intends to call to testify
22 at trial and copies of all written statements taken in accordance with
23 Rule 92 bis, 92 ter."
24 Of course, if you call a viva voce witness, there may not be a
25 statement, but the starting point is that you provide the Prosecution
Page 21010
1 with statements, whenever taken, of witnesses you intend to call.
2 Therefore, I do not know exactly what your understanding of the
3 Rule is based upon but that's what the Rule tells us.
4 MR. LUKIC: My understanding that we have to disclose whatever we
5 have and still because of -- we were not able to talk with so many
6 witnesses and to finalise their statements. We have statements taken
7 from them but they are not finalised. There are more. Of course, they
8 have all the statements from Karadzic case. They would be --
9 JUDGE ORIE: Have you disclosed them to the Prosecution?
10 MR. LUKIC: We got it from them. We didn't --
11 JUDGE ORIE: Mr. Lukic, you are in this proceedings, if you got
12 anything, you have to select -- you have to say we want to call witness
13 A. Witness A has given a statement in Karadzic, in wherever, earlier to
14 whatever authority. These are the statements. They are hereby disclosed
15 to you as relevant material in this ways. That's what the Rule -- Rule
16 tells you to do. Not to say, Well, you know already from another case
17 what statements were ever taken and -- that's not what the Rule is about.
18 MR. LUKIC: Then we'll disclose the statements from Karadzic case
19 they already have. And it's pretty large number of witnesses that would
20 go by those statements.
21 JUDGE ORIE: Mr. Groome.
22 MR. LUKIC: But --
23 MR. GROOME: By our count there are 122 witnesses from the
24 Karadzic case. Do I understand from Mr. Lukic's statement then, just
25 now, that for Karadzic witnesses the same statement that was proffered in
Page 21011
1 the Karadzic case will be proffered before this Chamber?
2 MR. LUKIC: Our intention was, of course, to adjust the
3 statements. Some issues are not actually interesting for us. For
4 example, some SDS meetings or Crisis Staff meetings. We wanted to adjust
5 them to our military case, mostly. But if it's the ruling by the Chamber
6 that we disclose those statements, we can disclose the statements as they
7 are and then make the additions to those statements.
8 JUDGE ORIE: What I'd like to you do is to sit together with
9 Mr. Groome to say: This is what we intend to do. We have statements
10 from Karadzic but we'll date by a red line or whatever that we most
11 likely will skip this and this and this from those statements because
12 they are irrelevant for us, but apart from that that is what remains is
13 then the statement on which we wish to rely.
14 First of all, I want you to abide by the Rules, but second, I
15 want and the Chamber wants you to find practical solutions which enable
16 both parties to prepare for the Defence case and to say, Well, you know
17 it already, how could Mr. Groome guess on what you consider relevant or
18 less relevant in the Karadzic statements?
19 MR. LUKIC: He cannot, that's true.
20 JUDGE ORIE: No. And if you already 120 statements, why not one
21 of the -- you as lead counsel ask for advice from your team members and
22 say, Okay, Karadzic case, this is relevant, that's not relevant, this is
23 not relevant, so just to give Mr. Groome an impression on what he has to
24 prepare for and then he has instead of less than 20 he already has 120
25 statements which allows him to at least further prepare.
Page 21012
1 JUDGE FLUEGGE: May I assist the court reporter. At the moment
2 three microphones were switched on and the court reporter, as you can see
3 from the transcript, asked twice to switch off if they are not used.
4 JUDGE ORIE: I'll switch on my microphone.
5 Mr. Lukic, Mr. Groome also complained -- well, by "complained"
6 he mentioned that he tried to reach you but couldn't reach you in order
7 to further discuss these matters.
8 Mr. Groome, would be it a good idea to see how far you could come
9 if you would meet and try to find practical solutions to start with.
10 MR. GROOME: Your Honour, we are always willing to meet. I guess
11 I'm concerned that my willingness to meet shouldn't be confused with my
12 still -- my insistence that the Prosecution has certain procedural rights
13 need to be observed.
14 So in this particular case, now we've talked about 122 witnesses
15 and we'll have a discussion about those Karadzic witnesses, but that
16 still leaves 200 statements -- 92 ter statements that I think the Chamber
17 should set a deadline. I mean, we're heard Mr. Lukic say that one of the
18 witnesses has died and the statement will be offered 92 quater, so we
19 know that statement exists. Well, we should have had that last Monday.
20 So any statements that are currently in existence that the Defence
21 intends to tender through 92 bis, ter, or quater were passed due, and I
22 would ask that immediate steps be taken to get us that information, those
23 statements.
24 JUDGE ORIE: It is my suggestion to meet. At the basis of that
25 suggestion was that if you received those statements that at the same
Page 21013
1 time you would receive information about what the Defence would most
2 likely not use from those statements so that you were -- be better able
3 to focus on what the Defence intends to focus on later.
4 MR. GROOME: Certainly that aspect of it is appreciated and we're
5 happy to meet Mr. Lukic, but I'd ask him to address the rest of it, the
6 remaining stuff.
7 JUDGE ORIE: Mr. Lukic.
8 MR. LUKIC: Only to address this issue of this gentleman who
9 died. He testified in Karadzic case also. So it's just transferring his
10 Karadzic statement into 92 quater.
11 JUDGE ORIE: Yes. But --
12 MR. LUKIC: And I accept --
13 JUDGE ORIE: -- I think Mr. Groome hears at this hearing that the
14 witness died instead of having been informed about it before, by name,
15 and so to know that this would be a 92 quater witness.
16 MR. LUKIC: I learned this morning.
17 JUDGE ORIE: You learned this morning, then I can't have any
18 criticism on that and I will not.
19 Nevertheless, Mr. Lukic, the Chamber is invited to send a
20 dead-line for the Rule 67(A) disclosure. Do you have any further
21 observations to be made as far as time timing is concerned?
22 MR. LUKIC: I have to tell that you we really need more time to
23 compose all the statements. If that's the rule that we have to disclose
24 it --
25 JUDGE ORIE: But the Rules says that any -- any statement given
Page 21014
1 by that witness, even if you want to take out smaller portions later,
2 whatever, but you should disclose statements taken by that witness even
3 if it's not you yourself who did it.
4 MR. LUKIC: But right now we have it in, like, rough version.
5 It's not sentences. It's just facts put. Now we have to make proper
6 sentences because we -- I speak with the witness and I type. That's how
7 our team-works. We don't have manpower. I don't have a typist or
8 somebody else. I have to type what I speak with that witness, so of
9 course I catch only the gist of it.
10 JUDGE ORIE: But at least for those 120 witnesses statements do
11 exist.
12 MR. LUKIC: Yes, but --
13 JUDGE ORIE: And if you tell me that for all the other witnesses
14 no statement of whatever kind exists, I'd be surprised, but it's still
15 possible. But you should try to find whatever statements there are there
16 and to provide them as -- to disclose them as soon as possible to the
17 Prosecution.
18 MR. LUKIC: I would be the happiest lawyer in the world if I have
19 all those statements given to the Prosecutor already, trust me.
20 JUDGE ORIE: We may set a deadline that you will have to disclose
21 to the Prosecution any existing statement of the witness by a certain
22 period of time.
23 MR. LUKIC: Or maybe it's better if I sit with Mr. Groome first
24 and then inform you.
25 JUDGE ORIE: If -- I think Mr. Groome said sitting together would
Page 21015
1 not resolve this problem, but if you think and if Mr. Groome thinks that
2 waiting for one or two more days to set such a deadline, that we could be
3 assisted by the parties and not making it worse as it is already, then
4 we'll consider that.
5 Mr. Groome.
6 MR. GROOME: Your Honour could I just that -- it seems that the
7 Defence has -- there's been some confusion about the extent of their
8 obligation. I would ask the Chamber to instruct them by this Friday to
9 give some consideration to this discussion today and to propose a plan as
10 to when they will be able to meet their Rule 67 obligations. I'm happy
11 to meet with Mr. Lukic at any time and to discuss any issues - and there
12 are many issues - but I will never agree that -- that the requirements of
13 Rule 67 be vitiated. I must insist on that. And I believe it's for
14 Mr. Lukic at this stage now, bearing in mind this discussion, to propose
15 a plan forward to when he will be able to meet his obligations.
16 JUDGE ORIE: Okay.
17 [Trial Chamber confers]
18 JUDGE ORIE: The Chamber follows this suggestion. That is, the
19 parties are encouraged to meet and that Mr. Lukic presents a plan for
20 Rule 67(A) disclosure with the benefit of having spoken to Mr. Groome on
21 the matter, knowing exactly what his obligations are, and to come up with
22 a plan to be filed this Friday.
23 MR. GROOME: Finally, Your Honour, with respect to the witnesses
24 that already testified in Karadzic, I'm happy to talk about them and, of
25 course, we do have access to that evidence. May I ask the Chamber to
Page 21016
1 instruct the Defence that that -- those should be the witnesses that are
2 called until this problem is solved because at least in that case we do
3 have access to the witnesses' evidence.
4 JUDGE ORIE: Mr. Lukic, are you willing to give priority to
5 calling those witnesses who have testified already in Karadzic?
6 MR. LUKIC: We have to since we do not have statements for any
7 other witnesses anyways. Only -- only [Overlapping speakers] ...
8 JUDGE ORIE: [Overlapping speakers] ... I consider this an
9 agreement --
10 MR. LUKIC: We have -- we have three witnesses, sorry for
11 interrupting you --
12 JUDGE ORIE: Yes.
13 MR. LUKIC: We have three witnesses coming soon but their
14 statements were disclosed in a timely manner, so I think it's not in this
15 category.
16 JUDGE ORIE: Mr. Groome, the exception of three witnesses, would
17 that?
18 MR. GROOME: Your Honour, on the 17th of April the Defence
19 notified the Chamber and the Prosecution about a witness order. All of
20 those witnesses we agree we make no objection to them being called, and I
21 believe that Mr. Lukic will confirm that that scheduling of witnesses is
22 still the same.
23 MR. LUKIC: Same. We confirmed it this morning [Overlapping
24 speakers] ...
25 JUDGE ORIE: So prioritising Karadzic witnesses will start after
Page 21017
1 the testimony of those witnesses who have already been scheduled. And,
2 Mr. Lukic, you have agreed to not calling other witnesses but, first, to
3 focus on those witnesses until the 67(A) disclosure issue has been
4 resolved.
5 MR. LUKIC: Yes, Your Honour.
6 JUDGE ORIE: That's hereby on the record.
7 Then I have a few practical matters. First, Rule 92 ter motions.
8 I'd like to take the opportunity for the Chamber to recall its guidance
9 set out at the beginning of the Prosecution case with respect to
10 Rule 92 ter motions and decisions to be taken thereon.
11 But rather than continuing with that, I think we should first
12 take a break. We -- at least the Chamber doesn't need much time after
13 the break. I would consider some 20 minutes or anything between 20 and
14 30 minutes.
15 I suggest we take a break and that we will resume at 25 minutes
16 to 1.00 and then finish somewhere around 1.00. Unless the parties would
17 have considerable matters to be raised.
18 MR. GROOME: I have about ten minutes, Your Honour.
19 JUDGE ORIE: Yes.
20 Mr. Lukic.
21 MR. LUKIC: I see nothing right now on our side.
22 JUDGE ORIE: Okay. Then we'll finish in the next session and
23 we'll resume at 25 minutes to 1.00.
24 --- Recess taken at 12.10 p.m.
25 --- On resuming at 12.38 p.m.
Page 21018
1 JUDGE ORIE: I think before the break I started saying that the
2 Chamber takes this opportunity to recall its guidance set out at the
3 beginning of the Prosecution case with respect to 92 ter motions and
4 decisions to be taken thereon.
5 The Chamber informs the parties that it shall apply the guidance
6 it set out at transcript pages 2408 to 2410 to the extent that it will
7 only decide on the admission of proffered Rule 92 ter material when the
8 witness appears in court, save for instances where a specific issue
9 raised by the opposing party - and that would be the Prosecution in this
10 case - warrants issuing a decision prior to the witness's appearance.
11 The Chamber hereby puts on the record that on the 7th of May,
12 2014, it granted the Defence's request for leave to reply to the
13 Prosecution's provisional response to the Defence Rule 92 ter motions and
14 informed the parties accordingly through an informal communication.
15 In the Prosecution's responses to the Defence Rule 92 ter motions
16 for Dragomir Andan and two other witnesses, the Prosecution has claimed
17 that the Defence has failed to provide signed statements for those
18 witnesses. In the Prosecution's view, the statements, when signed, may
19 include substantial amendments and therefore the Prosecution has
20 requested that these witnesses are called viva voce.
21 If the Prosecution wishes to address this matter further, it has
22 an opportunity to do so, and the same would be true for the Defence.
23 MR. GROOME: Your Honour, I don't want to restate everything that
24 we put in that response, but essentially our position is if the Defence
25 is unable to meet its obligations under Rule 92 ter and Rule 67, and that
Page 21019
1 is to provide a signed statement, that it seems that procedural fairness
2 requires that the witness simply be called viva voce. This is somewhat
3 unusual set of circumstances where a signed statement is not attached to
4 the 92 ter application or has not been provided and it seems that, again,
5 that viva voce would be the best way to proceed particularly when, and
6 this is also motivated by our analysis of this unsigned document and our
7 analysis in one particular case the witness has said in the past, that
8 there seems to be such a contradiction that it seems that hard to imagine
9 that all that can be resolved, and if it's only resolved the night before
10 the person appears in court here, it seems to inject a certain amount of
11 procedural unfairness to the Prosecution.
12 JUDGE ORIE: Mr. Lukic.
13 MR. LUKIC: As I said before, we have signed statements of most
14 of the witnesses that should appear at the beginning of our case. And I
15 hope that we will be able to provide those signatures with no changes in
16 the statements to the Prosecution hopefully today.
17 JUDGE ORIE: Yes, that's clear. The Chamber, at this point in
18 time, will not grant the request by the Prosecution that we should order
19 the Defence to examine the witnesses viva voce. We -- at this stage, we
20 deny that objection, but, of course, we are not knowing exactly what will
21 happen and the Chamber, of course, is also unaware of any previous
22 statements taken from any witnesses which might cause a
23 the-night-before-the-next-day change to that statement. But we will
24 consider that if it comes to it. But the mere fact that they're not
25 signed in itself is no reason for the Chamber to instruct the Defence to
Page 21020
1 examine its witnesses viva voce.
2 At the same time, Mr. Lukic, you will understand that if drastic
3 changes will appear, or if anything happens, the Chamber still has an
4 opportunity to instruct you to examine the witness viva voce if
5 circumstances, indeed, would require us to do so.
6 MR. LUKIC: Yes, Your Honour. Thank you.
7 JUDGE ORIE: Then in its provisional response to the Defence
8 Rule 92 ter motions dated 28th April of this year and its provisional
9 response to the Defence's Rule 92 ter motion for Svetozar Guzina, dated
10 the 2nd of May, 2014, the Prosecution stated that it would like, first,
11 to address the Chamber about the practice of tendering written material
12 pursuant to Rule 92 ter; and two, on some clear guide-lines from the
13 Chamber on the procedure to be used when contacting Defence witnesses.
14 Mr. Groome, to the extent the first item needs further
15 explanation, you may give it, and the second issue approaching Defence
16 witnesses has not yet been addressed today, so you have an opportunity to
17 do that as well.
18 MR. GROOME: Your Honour, may I suggest that perhaps if Mr. Lukic
19 and myself are going to meet, that we discuss this and maybe take a few
20 minutes next week just to raise the matter.
21 JUDGE ORIE: Yes. I see everybody is nodding, both my colleagues
22 and Mr. Lukic, so we'll further hear from you on these matters after
23 you've met with Mr. Lukic.
24 And I then take it that matters such as tendering portions of
25 statements or testimony which would give an unbalanced view on the matter
Page 21021
1 would be one of the issues you would discuss and also associated
2 exhibits, not flooding the Chamber with associated exhibits. These are
3 all within the subject matter you would like to discuss with the Defence,
4 Mr. Groome. Is that --
5 MR. GROOME: That is true, Your Honour, but there is one matter
6 that you've just touched upon that I would encourage the Chamber to begin
7 considering. And when we look at some of these witness, particularly
8 witnesses who testified in the Karadzic case, that during the
9 cross-examination of those witnesses, in some cases, the witness -- the
10 Prosecution showed the witness maps and had the witness mark the maps,
11 showed some photographs, and the witness marked the photographs, and
12 we -- the Prosecution's position is that that clarified some of the
13 issues in the statement.
14 If we're going to see those statements again, it's likely that we
15 would do the same thing, show the same map, show the same photographs,
16 and just thinking in the long-term of ways to make this process more
17 efficient, the Prosecution considers if, procedurally, we were able to
18 put that line of questioning before the Chamber, there would be no need
19 for us to take Court time in doing that. I think we put it in -- we'd
20 first raise it with the Guzina response. I expect that we'll be doing it
21 in the future. Perhaps at this stage if I could simply ask the Chamber
22 to consider that or to consider alternative ways to perhaps gain some
23 efficiency by where we intend to ask the same questions to simply
24 introduce that.
25 We're still trying to think about it conceptually. Obviously,
Page 21022
1 under 92 ter the witness would be required to listen to their Karadzic
2 testimony and we'd have to lay a foundation. Under 92 bis the witness
3 doesn't have to listen to their prior testimony. It's taken that given
4 sworn testimony can be just tendered under 92 bis. So we're still trying
5 to sort out exactly our thinking on it, but perhaps if the Chamber could
6 also consider -- begin to consider this issue, and we'll raise it in the
7 context of specific filings.
8 JUDGE ORIE: Yes, we certainly will. And if I understand you
9 well, you're mainly focussing on visualising exercises in support of the
10 testimony or the statement given.
11 MR. GROOME: That's what we've identified so far. It's possible
12 that we might be suggesting in the future that if it's our intention to
13 do the exact same cross-examination, that those hours could be saved
14 simply by introducing that cross-examination in written form. Of course,
15 if it's the -- the Karadzic statement that's now going to be tendered,
16 it's likely that a large percentage of our questions will be identical.
17 JUDGE ORIE: We'll certainly start considering these modalities.
18 [Trial Chamber confers]
19 JUDGE ORIE: We'll -- have started considering it already, and
20 we'll continue to do so.
21 Then, I'd like to move into private session for a short while.
22 [Private session]
23 (redacted)
24 (redacted)
25 (redacted)
Page 21023
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4
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6
7
8
9
10
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12
13
14
15
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18
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20
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22
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Page 21024
1 (redacted)
2 (redacted)
3 (redacted)
4 (redacted)
5 (redacted)
6 (redacted)
7 (redacted)
8 (redacted)
9 (redacted)
10 (redacted)
11 (redacted)
12 [Open session]
13 THE REGISTRAR: We're in open session, Your Honours.
14 JUDGE ORIE: Thank you, Madam Registrar.
15 If the Defence notifies the Prosecution and the Chamber of
16 existing protective measures for any of its witnesses, it should clearly
17 indicate which protective measures were granted, by which -- which
18 Chamber, and refer, make a reference, to that specific decision of that
19 Chamber.
20 I move on.
21 The Chamber hereby informs the parties that the Chamber will not
22 be able to sit on the 30th of June and the 1st of July of this year.
23 That's a Monday and a Tuesday.
24 I move to my next agenda item. The Chamber noted that the B/C/S
25 version of Witness RM311's witness statement - and that is Exhibit
Page 21025
1 P3520 - includes photographs which do not appear to have been tendered or
2 admitted. Considering, however, that the English version of the
3 statement makes reference to these photographs, the Chamber is satisfied
4 that the photographs should also form part of the exhibit. And the
5 Chamber therefore considers the entirety of P3520 to be in evidence.
6 I move to some translation matters, and I will first deal with
7 P3653, P3654, and P3655.
8 On the 13th of March of this year, the Chamber informally
9 requested the Prosecution to upload into e-court the English translations
10 of Exhibits P3653, P3654, and P3655 admitted into evidence through
11 Witness Milenko Tomic.
12 On the 7th of April, the Prosecution informed the Chamber about
13 the uploading of these translations into e-court under
14 doc IDs 0614-7784-ET, 0307-5580-1, and 0307-5581 respectively. The
15 Chamber hereby instructs the Court Officer to attach the newly uploaded
16 translation of Exhibits P3653, P3654, and P3655 to the respective B/C/S
17 originals.
18 I'll now deal with Exhibit P1756. The Prosecution has uploaded a
19 revised B/C/S translation of P1756 into e-court under doc ID R068-5514-1
20 B/C/S. The Chamber hereby instructs the Court Officer to replace the
21 existing B/C/S translation of Exhibit P1756 with the revised one.
22 I've exhausted my agenda and give an opportunity to the parties
23 to raise whatever matter they feel they should raise.
24 Mr. Groome.
25 MR. GROOME: Thank you, Your Honour.
Page 21026
1 According to the Chamber's guidance and the practice during the
2 Prosecution case, we gave the Defence notice of the documents or exhibits
3 that be used with the witness a week in advance. The Defence have
4 provided us some associated exhibits for the witnesses next week, so my
5 query is whether is that the totality of the exhibits that will be used
6 with the witness's next week; if it's not, can we be given notice of what
7 other exhibits will be used with those witnesses.
8 MR. LUKIC: It's totality of the exhibits.
9 JUDGE ORIE: That's a short and clear answer.
10 MR. GROOME: The second matter is, Your Honour, relates to
11 translations. I don't believe we've heard from Defence today whether
12 they are in possession of the necessary translations. When we look in
13 e-court, it appears that there are some missing, so perhaps it would be
14 useful to hear from the Defence: Are they experiencing problems with
15 translations or do they anticipate being able to -- to provide those when
16 needed?
17 JUDGE ORIE: Mr. Lukic.
18 [Defence counsel confer]
19 MR. LUKIC: Give us one second. I'm just consulting with my
20 colleague, Ivetic.
21 We are not aware of any translations missing for the witnesses
22 coming.
23 JUDGE ORIE: Perhaps it's about others from the 1900 exhibits
24 uploaded into e-court?
25 MR. GROOME: Well, I know that for some associated exhibits we
Page 21027
1 could not find a corresponding translation, and Ms. Stewart just informs
2 me that there seems to be maybe some disconnect between the document
3 itself that's intended to be tendered as well as the translation. If I
4 could ask maybe at this stage for Defence to investigate the matter and
5 hopefully by next Monday it will be sorted so we will be able to find
6 documents.
7 It has implications for our preparation because we obviously need
8 to read the translation to prepare for the examination of the witness.
9 JUDGE ORIE: Yes. Mr. Groome, if you would be able to already
10 point at the most urgent ones you would need so the Defence could start
11 exploring those specific documents and then later come back to you, and
12 it's appreciated that the parties will try to resolve the problem among
13 ourselves.
14 Please proceed, Mr. Groome.
15 MR. GROOME: And finally, Your Honour, this relates to the
16 minimum quantum of information that we need with respect to witnesses to
17 conduct investigations in preparation for our examination. For example,
18 Witnesses GRM198 and GRM202, there's no first name provided. We
19 obviously need the witness's full name. We also need the witness's
20 father name, date of birth, and place of birth to conduct even the most
21 rudimentary investigation.
22 The Prosecution requests that the Chamber order the Defence to
23 provide this information or in the alternative to provide the contact
24 details of the witness that so we can contact them and ask them for it
25 ourselves.
Page 21028
1 I would ask that priority be given to those witnesses who have
2 not testified previously before the Tribunal, those witnesses we are able
3 to find some information and that information has been provided in many
4 cases in the other cases. Obviously, if it is our -- if the first
5 opportunity we have to positively identify the person that comes before
6 the Chamber is when we get to ask our questions on cross-examination, it
7 is likely that we'll be seeking to re-call the witness because it is only
8 then that we can begin our investigations in earnest to verify and then
9 subsequently test the evidence of the witness.
10 JUDGE ORIE: That's clear.
11 Mr. Lukic.
12 MR. LUKIC: If we could also be provided with the names of the
13 witnesses where this data is missing because I know that I -- when I
14 compose the statement I always put those data.
15 MR. GROOME: It's the name of the father, the date of birth, and
16 the place of birth as is customarily put in all OTP witness statements.
17 JUDGE ORIE: And two specific witnesses were mentioned. Were
18 they mentioned for -- as examples only?
19 MR. GROOME: Those were two cases where not even a first name was
20 provided, Your Honour.
21 JUDGE ORIE: Yes. And for the others, also father's name, date,
22 and place of birth.
23 MR. LUKIC: Now I was informed by Mr. Ivetic that those two are
24 Russian witnesses and we don't have it. They are foreign witnesses. We
25 asked from Russian embassy to be provided with those data, and as soon as
Page 21029
1 we have the data we'll provide the OTP with the same.
2 [Defence counsel confer]
3 MR. LUKIC: And those reports were actually my -- made by the
4 OTP. It's P9 -- 797. Those are -- authored by those witnesses. And
5 it's on the list. It's in regards to the Markale case.
6 MR. GROOME: I'm not exactly sure what we're speaking about at
7 the moment. If that's a reference in a Prosecution document to those two
8 witnesses, thank you, and we will look at that, but as a general rule for
9 the remaining 334 witnesses we would need this additional information to
10 even be able to do any searches in our own systems or make any inquiries
11 about who the person is and what positions they held.
12 MR. LUKIC: I know about the father's name and date of birth
13 should be there. I'm not sure about the place of birth. I don't -- I --
14 I didn't ask my witnesses. I just asked about their residence now. But
15 we'll talk with Mr. Groome and try to sort this out.
16 MR. GROOME: That's sufficient, Your Honour. Thank you.
17 JUDGE ORIE: That's appreciated. Let me just have one look.
18 [Trial Chamber and Legal Officer confer]
19 JUDGE ORIE: Yes, I've seen that these two are FNU'd on the
20 witness list. If they are authors of any document which is in evidence,
21 then we still might not have their first names because sometimes authors
22 are not mentioning the first name, but it may give a clue, Mr. Groome,
23 and Mr. Lukic certainly will assist you and further find out.
24 MR. GROOME: Yes, Your Honour. Thank you.
25 JUDGE ORIE: Then I think there was one other issue about
Page 21030
1 biographical details; that is, the Prosecution has responded to the
2 Defence Rule 92 ter motion for Witness GRM251, and I think the
3 Prosecution has asked for postponement of this witness because the
4 Prosecution wished to receive further biographical information and the
5 correct name of that witness. But I think the Defence has not yet given
6 its position in relation to that request.
7 Mr. Groome.
8 MR. GROOME: Yes, Your Honour. And informally we've asked the
9 Defence to do the same thing with respect to two other witnesses that
10 were unknown to us and their names seem -- that we needed to clarify, and
11 so we've asked for three witnesses who have never testified before this
12 Tribunal in any case, that they be postponed to give us some reasonable
13 period of time to investigate who they are.
14 JUDGE ORIE: And they are scheduled for when?
15 MR. GROOME: They -- they are in the second set of witnesses that
16 Mr. Lukic tendered, but he hasn't told us when he expects to call them.
17 JUDGE ORIE: Yes. Therefore, postponement, if we do not know
18 exactly when they will be called, do you want the Chamber to already
19 decide on that or rather wait for Mr. Lukic to see whether he could
20 provide you on short notice with the information you are seeking?
21 MR. GROOME: Your Honour, that's why we dealt with it informally
22 and we only put it in this response. We thought that it merited being
23 included. But they are witnesses GRM251, 020, and 146. Those three
24 witnesses are the witnesses we've asked. Once we get the information we
25 need, we'll take reasonable steps to investigate who they are and we'll
Page 21031
1 report to the Chamber and to the Defence as soon as we've done that.
2 JUDGE ORIE: But you reserve your position as asking for
3 postponement of --
4 MR. GROOME: Yes.
5 JUDGE ORIE: -- calling those witnesses.
6 MR. GROOME: Well, perhaps we could hear from Mr. Lukic when
7 he -- if he has scheduled them. If he has, then that would affect my
8 answer right now.
9 MR. LUKIC: Those witnesses were scheduled for the second -- one.
10 One is seconded for the second week.
11 JUDGE ORIE: And do you have the information Mr. Groome is
12 seeking available or?
13 (redacted)
14 (redacted)
15 (redacted)
16 MR. GROOME: Your Honour, rather than wasting the Court's time
17 I'll speak with Mr. Lukic.
18 JUDGE ORIE: Okay.
19 MR. GROOME: There is some confusion about the name.
20 JUDGE ORIE: If there is any remaining issue, the Chamber would
21 like to be informed as soon as possible, but at this moment we'll refrain
22 from deciding on any request for postponement.
23 MR. GROOME: Yes.
24 JUDGE ORIE: Then that matter is.
25 Mr. Groome, any other matter?
Page 21032
1 MR. GROOME: No, Your Honour. Thank you.
2 JUDGE ORIE: Mr. Lukic, any matter to be raised?
3 MR. LUKIC: I promised I don't have any, but I think I have to go
4 back to alibi witnesses shortly.
5 JUDGE ORIE: Yes.
6 MR. LUKIC: The problem with alibi is not only where
7 General Mladic was at that time but also what he did. The present
8 argument is that he had communications and that probably inferring that
9 he could command, and so we have to explain what he did, where exactly he
10 was, and what kind of communications he was -- had available, if any. So
11 it's not only matter of where was he but also what he did. So that's why
12 if you find those witnesses again on the list, it's not that we are not
13 following your suggestions but because we really need for our case to
14 prove those matters.
15 JUDGE ORIE: Perhaps it was not very clear from the summary of
16 the witness statement. If it says: The witness will tell us where
17 Mr. Mladic slept that night, and if that's an agreed fact then, of
18 course, there is no need to hear that evidence. But if there is any
19 additional evidence which is relevant and which is not yet covered by the
20 agreed facts, then, of course, it's a different situation, but perhaps
21 the summary may have confused us then a bit. We'll see and hear.
22 [Trial Chamber confers]
23 JUDGE ORIE: The Chamber still owes you one decision and that is
24 on the number of hours which is granted to the Defence to present its
25 Defence case, and that is exactly the same number of hours as granted to
Page 21033
1 the Prosecution. That is, 207.5 hours. And the number of witnesses is
2 not set further, is not limited by the Chamber. The Defence [sic], I
3 think, all together presented the evidence of some 360 witnesses. The
4 Defence is now asking for 336. And within the time-limits, the Chamber
5 does not further set a limit on the number of witnesses.
6 MR. LUKIC: Thank you, Your Honours. Only one thing.
7 JUDGE ORIE: Yes.
8 MR. LUKIC: We would just kindly ask, but probably we can sit
9 with Mr. Groome, Mr. McCloskey, the estimate for cross so we can plan.
10 JUDGE ORIE: Yes. I can imagine that if they have the statements
11 that it would be far easier to --
12 MR. GROOME: Precisely, Your Honour.
13 JUDGE ORIE: -- [Overlapping speakers] an estimate. But for the
14 first few witnesses it was quite common that the estimates for
15 cross-examination would be given so that the Defence is better able to
16 prepare and organise the appearance of those witnesses.
17 MR. GROOME: Your Honour, the best I can say at this stage is the
18 Chamber's guidance with respect to 92 ter witnesses that the
19 cross-examination would be two and a half hours. At this stage I don't
20 think we'll be asking for any more time, but certainly once we have a
21 signed statement we can make a more informed decision about what we need
22 to do on cross-examination.
23 MR. LUKIC: We'll send all the signatures we have today.
24 JUDGE ORIE: And then as soon as possible the Prosecution will
25 provide an estimate of the time needed for cross-examination.
Page 21034
1 This will then conclude the Pre-Defence Conference, but I see
2 that Mr. Mladic would like to consult with counsel. If he would first
3 switch off his microphone, then that would certainly help.
4 [Defence counsel confer]
5 JUDGE ORIE: Mr. Lukic, any matter to be raised?
6 MR. LUKIC: No, Your Honour.
7 JUDGE ORIE: Thank you.
8 Mr. Groome.
9 MR. GROOME: Your Honour, I'm just reminded by a colleague that
10 in our first nine responses we did include an estimate of the time that
11 we would require for cross. So that information has already been
12 provided.
13 JUDGE ORIE: I must have overlooked that.
14 Then we will adjourn, and we'll resume, Monday, the 19th of May,
15 9.30 in the morning, in this same courtroom, I.
16 --- Whereupon the hearing adjourned at 1.17 p.m.,
17 to be reconvened on Monday, the 19th day of May,
18 2014, at 9.30 a.m.
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