Tribunal Criminal Tribunal for the Former Yugoslavia

Page 3007

1 Thursday, 29th May 1997

2 (10.00 am)

3 JUDGE KARIBI WHYTE: Good morning, ladies and gentlemen.

4 Can we have appearances now, this morning?

5 MR. OSTBERG: Thank you, your Honour. I am Eric Ostberg.

6 I appear today with Mr. Giuliano Turone, Ms. Teresa

7 McHenry and Ms. Elles van Dusschoten. Thank you.

8 JUDGE KARIBI WHYTE: Now appearances on the defence?

9 MS. RESIDOVIC (in interpretation): Good morning, your

10 Honour. My name is Edina Residovic. I am the defence

11 counsel for Mr. Zejnil Delalic, appearing together with

12 my co-counsel, Mr. Eugene O'Sullivan, Professor from

13 Canada.

14 MR. OLUJIC: Good morning, your Honours. I am Zjelko

15 Olujic. I am the defence counsel for Mr. Zdravko

16 Mucic. Together with me in the courtroom is Mr. Michael

17 Greaves, an attorney from the United Kingdom of Great

18 Britain and Northern Ireland.

19 MR. MORAN: Good morning, your Honour. Tom Moran for Hazim

20 Delic. My lead counsel, as the court knows, is out of

21 the city on business.

22 MR. ACKERMAN: Good morning, your Honours. John Ackerman,

23 appearing on behalf of Esad Landzo.

24 JUDGE ODIO BENITO: Sorry, your co-counsel?

25 MR. ACKERMAN: That is Cynthia McMurrey. She is out of

Page 3008

1 town and will be back in town next Wednesday.

2 MR. MORRISON: Good morning, your Honour. Howard Morrison

3 appearing on my own on the issue of contempt only

4 regarding the allegation of such against Mr. Zejnil

5 Delalic.

6 JUDGE KARIBI WHYTE: Thank you very much. We are

7 delighted to have all of you here. Now we want to

8 state the position of the Trial Chamber, because we had

9 the position of both the counsel for the prosecution and

10 defence in this matter and we have not stated the

11 position of the Trial Chamber, and this we intend to do

12 now.

13 The incident which brought about this whole

14 episode is very fresh and it has kept on repeating and

15 has stalled the principal proceedings in this Trial

16 Chamber.

17 Now on 15th May the Prosecutor made a complaint

18 that his attention had been drawn to a publication in

19 Slobodan Herzegovina, the Sarajevo weekly, containing an

20 interview with Delalic, one of the accused persons on

21 trial before us. The publication had been inset, a

22 list of the prosecution witnesses, including those

23 protected on the Order of this Trial Chamber. There

24 was a comment two weeks later in the same

25 publications. The two publications were turned out to

Page 3009

1 this Trial Chamber. Counsel defending the accused

2 persons were visibly concerned by the complaint. They

3 protested and withdrew participation in the proceedings

4 until the suspicion of their complicity in the

5 circumstances surrounding the publication was

6 investigated and cleared.

7 The Prosecutor's oral assurances to defence

8 counsel that no suspicions fell on them did not satisfy

9 them. The prosecution has now gone forward in writing

10 to clarify the position.

11 On 16th May the Trial Chamber referred the

12 complaint to the President to investigate the allegation

13 and report to the Trial Chamber. The following Terms

14 of Reference, and I read them:

15 "1: To investigate the circumstances of the

16 leakage of the information.

17 2: To make a determination as to responsibility

18 or otherwise of any (i) counsel appearing in the

19 Celebici proceedings and (ii) other persons connected

20 with the custody of the witness lists.

21 3: To determine the effect of the leakage upon

22 the current proceedings.

23 4: To report back to the Trial Chamber".

24 On 28th May the President reported to the Trial

25 Chamber. You all have copies of his reports. The

Page 3010

1 report cleared Ms Residovic and Professor O'Sullivan,

2 counsel to the first accused, Delalic, of misconduct, as

3 there was no evidence against them. The Trial Chamber

4 accepts this recommendation.

5 With respect to Delalic, the report stated that on

6 interview by the President he denied holding a telephone

7 interview with anybody and claimed his right to

8 silence. The President got in touch with Tahir Pervan,

9 the alleged interviewer of Delalic in the publication,

10 on the telephone, who claimed his right to silence and

11 refused to speak. Mr. Pervan at first offered to come

12 to The Hague to give evidence, since he was afraid to

13 give any evidence in Sarajevo, but subsequently claimed

14 he had lost his passport and could not travel. The

15 subsequent effort to speak to Pervan was answered by his

16 counsel, who told the President he had advised his

17 client not to answer any questions. The President did

18 not speak to the editor of the paper. The report does

19 not disclose he had spoken to any other person.

20 However, in his conclusion the President found

21 that Delalic might have held the interview credited to

22 him and in the course of interview might have named at

23 least one of the witnesses in the list of witnesses

24 published. He accordingly suggested that Delalic might

25 be charged with the contempt of the Tribunal.

Page 3011

1 The Trial Chamber finds it difficult to accept

2 this recommendation. The only evidence before the

3 learned President was the unequivocal and uncontradicted

4 denial of Delalic of the accusation founded on the

5 publication. There is no evidence on which the

6 President could have relied on casting any doubts on the

7 denial. Accordingly the supposition by the President

8 that Delalic might have given the interview has no

9 necessary evidence and cannot constitute a rational

10 basis for a judicial finding against Delalic. The

11 Trial Chamber, therefore, is unable to accept that

12 finding.

13 The position of the Trial Chamber is that Delalic

14 still stands on his accusation. It is nowhere

15 justified by the reference which the President made to

16 suggest his being charged for contempt. That is our

17 position. We have heard you. I think this is the

18 last the Trial Chamber will have about this matter. It

19 has spent so much time dealing with it and it has held

20 up an important aspect of a matter, which is perhaps

21 more serious than the furor which the delay has caused.

22 Thank you very much.

23 MR. MORRISON: Your Honours, I appear on behalf of

24 Mr. Delalic concerning this particular matter alone.

25 May I say that, of course, he will be no doubt pleased

Page 3012

1 to hear the conclusion of the Trial Chamber that the

2 Trial Chamber has concluded that there is no evidence

3 and therefore no basis for continuing the suspicion in

4 the mind of the Trial Chamber that he was guilty of the

5 contempt alleged or indeed any contempt. May I make it

6 perfectly plain that Mr. Delalic's position is this and

7 has always been, that he did not seek the delay of this

8 matter. He wants the trial to continue and he wants it

9 to continue upon the basis of the understanding that he

10 was in no way responsible for the publication of either

11 the articles or the names of any witnesses.

12 JUDGE KARIBI WHYTE: Thank you very much. I think our

13 position is very clear. I do not think we need say

14 anything. We do not want to continue the incrimination

15 and carrying on with this matter. I think we have had

16 enough of it. Let us carry on with the principal

17 proceedings for which we are here.

18 If the prosecution has any witnesses to call

19 today, we will decide to take them.

20 MR. OSTBERG: Your Honour, due to the incident and the delay

21 and the stay, we had to from economical and other

22 reasons in cooperation with the Victim and Witness Unit

23 to send witnesses back. We have had them on hold and we

24 have not, being unaware of what was going to be the

25 decision of the court, yet brought them back to The

Page 3013

1 Hague. We are prepared to do so. If we are lucky, we

2 can have some of them here tomorrow. If we are not

3 lucky, we cannot have them here until Monday. That is

4 the position. Today we cannot have them, because the

5 witnesses and victims unit considered it in consultation

6 with the prosecution considered it impossible from

7 economical and other reasons to have them sitting

8 waiting in The Hague. So that is the position of us.

9 Maybe tomorrow; certainly on Monday. Thank you, your

10 Honour. I can find that out during the day. I can

11 give you the view of the Victim Witness Unit on the

12 exact moment when we can have our first witness back in

13 The Hague. That I can do today.

14 By the way, I want to express the feelings of the

15 prosecution and utter my satisfaction over the position

16 taken by the Trial Chamber on this matter.

17 JUDGE KARIBI WHYTE: Thank you very much. Outside that,

18 I think that we have a few motions which have been

19 outstanding.

20 MR. OSTBERG: Yes.

21 JUDGE KARIBI WHYTE: I think we might be able to take that,

22 any of them, if counsel is disposed to, because we have

23 a list of them. The first one is the joint motion by

24 defendants on the production of evidence by the

25 prosecution.

Page 3014

1 MR. GREAVES: Your Honour, I wonder if I might mention this,

2 please? I wonder whether we might have 20 minutes just

3 to prepare. We were not quite expecting your Honour to

4 continue quite so quickly. I am hesitant to get up and

5 ask for yet further delay, but perhaps we can just draw

6 breath for a moment, please.

7 JUDGE KARIBI WHYTE: Okay. I think we can then rise and

8 come back at 11.

9 MR. GREAVES: Thank you very much.

10 JUDGE JAN: Please do inform the defence of the witnesses

11 you want to examine next, because --

12 THE INTERPRETER: Microphone, please.

13 JUDGE JAN: Do inform the defence of the witness you wish

14 to examine, because they complain "we have not prepared

15 that witness for cross-examination".

16 MR. OSTBERG: I will do that after the break, your Honour.

17 I will have to consult with the witness unit.

18 MR. ACKERMAN: Before you have leave, while the prosecution

19 is still here, it would be helpful to know who the

20 witnesses they think they are going to get here and

21 when, so we could be prepared to cross-examine them and

22 not stand here and complain we did not know those

23 particular witnesses were coming.

24 JUDGE JAN: That is exactly what I have told Mr. Ostberg.

25 MR. ACKERMAN: I am sorry. I was sitting over here

Page 3015

1 sleeping, your Honour.

2 JUDGE KARIBI WHYTE: I thought it was in relation to which

3 of the witnesses is available.

4 MR. OSTBERG: You will have the answer 40 minutes,

5 Mr. Ackerman.

6 MR. ACKERMAN: Thank you.

7 MR. MORAN: Before we rise, if you can just read out the

8 list of motions we are talking about, I know I have at

9 least one outstanding that I am probably going to

10 withdraw -- in fact I am going to withdraw.

11 JUDGE KARIBI WHYTE: I have read the first one, the joint

12 motion by the defence on the production of evidence by

13 the prosecution.

14 Second one is the defendant Hazim Delic's

15 designation of an expert witness.

16 The third is Delic's motion to strike out

17 Prosecution Exhibits 1 and 2.

18 The fourth, Prosecution's motion to compel the

19 disclosure of the addresses of witnesses.

20 The fifth, Prosecution motion for leave to call

21 Mr. Regis Abribat as a witness, although we have not had

22 any response to that.

23 The sixth, Prosecution motion to specify the

24 documents disclosed by the Prosecutor that Delalic's

25 defence intended to use as evidence. Also there has

Page 3016

1 been no response, but if counsel is ready, we might as

2 well take them.

3 MR. MORAN: Your Honour, the motion to strike Prosecution 1

4 and 2 that I filed, that is the one that I am going to

5 withdraw. I was going to file later today. To save

6 everybody the time finding it I checked the record. It

7 is my error. It turns out the issue has been

8 presented. There is no reason to do it again.

9 JUDGE KARIBI WHYTE: Thank you very much. That is all.

10 MS. McHENRY: Also in case it would assist, in respect of

11 the motion of Mr. Delic for designation of an expert

12 witness, the prosecution has no objection.

13 JUDGE KARIBI WHYTE: So it is not necessary to argue.

14 MS. RESIDOVIC (in interpretation): Your Honours, as for the

15 motion filed by the Prosecutor regarding the evidence to

16 be used by the defence of Mr. Delalic, we are prepared to

17 present our response today in the course of the

18 hearing. Thank you.

19 JUDGE KARIBI WHYTE: Now before the Trial Chamber rises,

20 I wish to express the appreciation of the Trial Chamber

21 and everyone concerned to Mr. Morrison for his very

22 capable way of presenting the case of his client in an

23 empassioned and an emotional matter, which matter which

24 concerns a lot of emotions. We are very pleased that

25 you have presented the arguments fairly, assisted the

Page 3017

1 prosecution and the Trial Chamber and presented a

2 balanced view of what counsel should do in circumstances

3 of this nature, to be completely detached and to be

4 helpful to everybody. That is a very good evidence of

5 the tradition and I am very, very pleased to thank you

6 and to congratulate you for all the efforts. I believe

7 your colleagues also admire the way you have handled the

8 matter. Thank you very much. We appreciate it very

9 much.

10 MR. MORRISON: Your Honour and your colleagues, thank you

11 for those kind comments. May I offer my thanks for the

12 professional courtesy and friendship which has been

13 shown to me.

14 JUDGE KARIBI WHYTE: The Trial Chamber will now rise and

15 reassemble at 11.

16 (10.25 am)

17 (Short break)

18 (11.05 am)

19 JUDGE KARIBI WHYTE: We will begin with the first motion,

20 the motion on the production of evidence by the

21 prosecution.

22 MR. TURONE: Thank you, your Honours. This motion was filed

23 by the defence seeking supplementary rules of evidence

24 and to this motion the prosecution objects that such a

25 request of supplementary rules is, in the submission of

Page 3018

1 the prosecution, unnecessary and unreasonable, since all

2 is already ruled in our rules of evidence and procedure,

3 and particularly in Rules 66 and following.

4 I will say that the crucial sentences in the

5 motion of the defence are the following, as far as the

6 legal arguments are concerned. In the motion we read

7 that:

8 "The prosecution in the opinion of the defence

9 lawyers has conspicuously failed to serve upon the

10 defence any statement from a number of the witnesses on

11 its witness list."

12 We read again in the motion that:

13 "Such failure means that each defendant can have

14 no idea until that witness gets into the witness box

15 what case he has to meet in respect of that particular

16 witness".

17 Well, your Honours, we believe that all this is

18 simply not true. First of all, with respect to

19 witnesses who appear on the witness list but for whom

20 the defence does not have witness statements, simply the

21 reason is that no witness statement exists for limited

22 number of witnesses. As a matter of fact, the

23 prosecution has complied with its obligations in good

24 faith and completely and will continue to do so. As

25 I say, there is a small number of witnesses for which no

Page 3019

1 previous witness statement exists, but even for these

2 witnesses it is not really true that defendants have no

3 idea of what these witnesses would testify on.

4 If we see our witness list, we might see that one

5 of these witnesses for which no previous statement

6 exists was, for instance, the first one, Mr. Beelen, but

7 in our witness list it is stated quite clearly that this

8 man coming from the Netherlands police should give a

9 physical description of Celebici camp with maps, videos,

10 pictures and model. We provided the defence lawyers in

11 due time with a written report done by Mr. Beelen.

12 Another witness like this for which no technical

13 witness statement existed but we had a report on what

14 the testimony would be was Ms Calic, our expert witness

15 on general background. Dr O is another example, but in

16 our witness list filed on March 7th we explained he is a

17 physician. He visited and issued medical certificates

18 on a number of former detainees of Celebici camp, etc.

19 So I would say that the prosecution could not even

20 be able to respond more specifically to this motion

21 because the defence has not provided any specifics, but

22 only made some vague allegations. So the prosecution

23 can only try to divine, to guess, what the estimated

24 colleagues of the defence are exactly concerned about.

25 So the prosecution might try to define that one

Page 3020

1 instance which the defence might be referring to is

2 maybe the one concerning Mr. Thomas Moerbauer of the

3 Austrian Federal Police, who is referred to in the

4 prosecution witness list at number 23 as being supposed

5 to testify, and I quote from the witness list:

6 "On the arrest of Delalic and Mucic and the

7 seizure of documents pertaining to them and for whom no

8 previous statement exists".

9 But even about Mr. Moerbauer the prosecution with a

10 letter dated 17th December 1996 offered to all defence

11 lawyers a copy of the report, of the big report of the

12 federal police of Vienna. Mr. Moerbauer, his name and

13 signature appear as one of the authors of the report,

14 and all defence lawyers have now a copy of this report.

15 Other instances where the prosecution might

16 believe that it might guess as to what the defence is

17 referring to might concern statements which were

18 provided by another defence counsel to the Prosecution,

19 but as reported in the status hearing of 1st November

20 1996, the defence apparently generally agreed that the

21 defence would exchange material among itself and was not

22 requesting that the prosecution provide disclosure of

23 material provided by one defence attorney to the

24 prosecution.

25 So we do not know exactly actually what to add

Page 3021

1 more about this motion. We can emphasise that in our

2 rules if there is some complaint about recent

3 disclosures we have Rule 67D, which provides that:

4 "If either party discovers additional evidence or

5 material which should have been produced earlier

6 pursuant to the Rules, that party shall promptly notify

7 the other party and the Trial Chamber of the existence

8 of the additional evidence or material".

9 This is what we have done always in due time and

10 in perfect good faith. So the prosecution believes that

11 no justification exists for adopting additional rules of

12 evidence whatsoever. This, I think, is all I can say

13 about this motion. Thank you, your Honour.

14 JUDGE KARIBI WHYTE: Can we hear you, Mr. Greaves?

15 MR. GREAVES: There are two problems, one of which, in my

16 respectful submission, has simply not been addressed by

17 my friend, Mr. Turone, at all in the course of his

18 submissions, and I will deal with that first so I can

19 bring it to your attention.

20 Your Honours perhaps have not yet penetrated

21 beyond the wall here, but you will know we have a

22 defence room, now two defence rooms, where counsel

23 gather. Sometimes during the course of the day a very

24 nice young man who is plainly employed by the Office of

25 the Prosecution will suddenly appear with a large number

Page 3022

1 of pieces of paper in his hand and we have to sign for

2 them. They are a variety of documents. For example,

3 some of these documents which have been shown to

4 witnesses where they have signed confession to

5 possessing arms are provided to us. Sometimes it is a

6 witness statement, often dated quite a long time ago.

7 (redacted)

8 (redacted)

9 suddenly emerged from the woodwork and we had to sign

10 for it. This is the sort of document we are given.

11 There is no indication given to us whatsoever, no doubt

12 because the very nice young man is not given any himself

13 to give to us, as to what purpose those documents are

14 being given to us for. There are two possible

15 explanations, in my respectful submission. One, it is

16 being served by the prosecution as additional evidence;

17 in other words, evidence upon which the prosecution

18 relies and which they are serving on us so that we may

19 know what the witness is likely to say. The alternative

20 is that it is being served as exculpatory material, and

21 I use that word within the definition of the rules, a

22 statement of a witness who is to be called by the

23 prosecution but one which is inconsistent in some way

24 with the statement which they have served on us, as it

25 were, as part of the prosecution bundle, and therefore

Page 3023

1 it is available to us to cross-examine the witness on a

2 previous inconsistent statement.

3 The problem is this. At no stage are we told

4 which of those two purposes is being served by the

5 service of that document. It is sometimes really rather

6 difficult to work it out, and it makes preparing

7 cross-examination of a particular witness

8 extraordinarily difficult if you do not know whether the

9 prosecution relies on this document or is simply giving

10 it to you so that you know that this inconsistent

11 statement exists in some way. That is the first concern

12 that we have. Material is coming through our door

13 pretty well daily without explanation as to what purpose

14 it is being given to us for. That, in my respectful

15 submission, is inherently unfair, not to know what the

16 purpose of this document is.

17 The second problem is this, and this is the matter

18 that my learned friend, Mr. Turone, has addressed. There

19 are a number of witnesses set out in the Prosecution

20 witness list in respect of whom no statement of any kind

21 has ever been served upon us. Let me give you an

22 example. There is a gentleman who I suspect is a

23 general in the army of the kingdom of the Netherlands, a

24 man by the name of de Vogel. I think he must be an

25 expert witness. Nothing has been served on us at all to

Page 3024

1 indicate the nature of the evidence he might give. If

2 he is an expert witness, there may come a time when he

3 is called by the prosecution, and we are taken by

4 surprise. We are then going to be put in the position

5 where we are going to be applying to your Honours for an

6 adjournment so that we can instruct an expert, because

7 it is only at that point that we find out what this man

8 is going to say and it may take us a very considerable

9 amount of time to go and instruct a similar expert. In

10 my respectful submission to be forced into that

11 situation is outrageous actually. No other word for

12 it. What is going to happen is that this court is going

13 to find itself presented by the failure of the

14 prosecution to do its job properly with a situation

15 where yet another serious delay is going to be caused by

16 their not serving any indication what these people are

17 going to save. I pick that one out as a particular

18 example, because this falls perhaps into two

19 categories.

20 First of all, it concerns the rules about expert

21 witnesses and secondly it concerns the general

22 proposition I have just laid before you, but there are

23 other people. It is one thing, and I note that the

24 report by Mr. Moerbauer is referred to. It is one thing

25 for somebody to have a report. It is quite another to

Page 3025

1 have a statement from someone which contains at the end

2 of it a certificate saying "this statement is true to

3 the best of my knowledge and belief." One likes to see

4 someone setting out their stall and saying: "This is

5 what I am going to say so that you may take instructions

6 upon it from your client as to whether or not that is

7 right or not." Simply having a report which contains a

8 number of formal documents, who knows what the witness

9 is going to say about those documents. For example,

10 what he is going to say about a search warrant.

11 Let me give you an example; the witness comes and

12 gives evidence and says: "Well, I conducted a search and

13 I recorded in the search warrant various details but, in

14 fact, what I recorded was incorrect." Simply to serve

15 on us the documents blandly with no other explanation is

16 simply not enough. If he is going to go into detail

17 about the documents he is producing, one wants to know

18 what it is he says about them, because otherwise you

19 cannot plan your cross-examination.

20 Another example; there are witnesses who have no

21 statement of any kind who it is said are going to deal

22 with issues of continuity. I understand the phrase

23 "continuity" to be this. Let us take an example. In a

24 drugs case if you are prosecuting a case in my

25 jurisdiction we would deal with it in this way. You

Page 3026

1 would want to make sure that you could trace the path of

2 the drugs that are recovered from somebody's home from

3 the moment they are seized by a police officer in

4 somebody's house. You want to follow each set of hands

5 who handles that item of drugs right the way through to

6 the time it is placed in the police property store and

7 then when it is taken out of that property store and

8 taken for analysis by the forensic scientist, when it is

9 taken back and put back to the property store. You want

10 to be able to prove by tracing each step that the drugs

11 recovered from the house were the drugs examined by the

12 forensic scientist and those are the drugs that are the

13 subject of the indictment. That is what continuity

14 means. It is a very important element of any case. You

15 have to prove it, because if you do not, you will find

16 at the end of the prosecution's case defence counsel

17 gets up and says: "The prosecution have failed to prove

18 that the item recovered was, in fact, the items examined

19 by the forensic scientist".

20 I am going to use a phrase that my learned fend

21 Mr. Moran has used in this case. It is a belt and braces

22 operation. For the American interpreters amongst you,

23 braces means suspenders. That is what continuity means

24 to me and I suspect to everybody else on this bench.

25 How can we prepare any cross-examination to challenge

Page 3027

1 continuity if no information has been given to us as to

2 what the witness will say? That is the problem in part

3 to which I advert in making this submission to your

4 Honours. What it comes down to is that the prosecution

5 may well say: "We think and therefore cogito ergo sum.

6 We think we have complied, thank you very much, and

7 therefore we have complied." If you look at it

8 carefully, the reality is they have not even begun to

9 comply with the rules which require them, if only in

10 spirit, to give us notice of what is to be said.

11 The point of doing it is to allow this trial to be

12 conducted swiftly and expeditiously. In my submission,

13 if they fail to do this, this Tribunal is going to be

14 faced with a continuing series of applications for

15 adjournments. It is going to save us a lot of time, a

16 lot of heartache if they get on and do what they were

17 required to do. The Tribunal, in my submission, has the

18 opportunity under the rules to introduce a proper

19 procedure, and one of the things that we have discovered

20 on all sides is that we are all learning about how best

21 to implement the procedures of this Tribunal, and the

22 Rule in Rule 89B, I think it is, was plainly

23 contemplating situations which would arise that as we

24 learn how to conduct trials expeditiously, there may

25 need to be things done and rules introduced albeit, as

Page 3028

1 it were, on an informal basis because they are not

2 formally part of the adopted rules, in order to ensure

3 that trials are conducted expeditiously and fairly, and

4 fairly for the defence.

5 What is happening here is that that is not being

6 done by the prosecution, and I have given examples, and

7 I advert to them. It is not being done by the

8 prosecution. There is a remedy which this honourable

9 Tribunal has, which is to say: "Enough is enough. If

10 the prosecution do not do this, they are simply going to

11 be prevented from calling these witnesses", because that

12 is the only just and fair way to deal with it.

13 Set out in the motion signed by all defence

14 counsel a procedure which we would invite this court to

15 adopt, which is one which places very serious

16 restrictions on the prosecution and effectively calls on

17 them to get their act in order. If they do not get

18 their act in order they are simply going to be prevented

19 from springing surprises on us, because that is what it

20 amounts to. If we do not know what these witnesses are

21 going to say, it is prosecution by surprise.

22 MS. McHENRY: If I may interrupt just for one minute. I am

23 sorry for the rudeness. There is a time limit and we

24 must request a redaction for some disclosure of

25 protected information. Thank you.

Page 3029

1 MR. GREAVES: I am sorry. I am taken by surprise and I do

2 not know what on earth that is about.

3 JUDGE JAN: This is not a point which he is making. He is

4 saying documents are being supplied every day to the

5 defence. They just come as a surprise.

6 MS. McHENRY: Your Honour, I am sorry. I am referring to

7 something else entirely. In the course of his argument

8 defence counsel gave some protected information and

9 because this is open session I do not want to highlight

10 what it is. So the procedure is at some point after it

11 has been done, whoever notices it is supposed to stand

12 up and notify, and I believe the Trial Chamber's law

13 clerk already knows what I am referring to, so that

14 measures can be done to make sure that it does not

15 become part of the public record. All I am asking is

16 that the public record be redacted to take out the one

17 particular piece of protected information that defence

18 counsel has given. I am not speaking to the argument at

19 all.

20 JUDGE KARIBI WHYTE: Thank you very much.

21 MR. GREAVES: Someone had better tell me what I have done.

22 JUDGE JAN: Please do not take any names.

23 JUDGE KARIBI WHYTE: It is in connection with a name.

24 MR. GREAVES: I do know what I have done and I am terribly

25 sorry.

Page 3030

1 JUDGE JAN: Names are not really essential for your

2 argument.

3 MR. GREAVES: I am sorry. I did not realise I had done it.

4 I was simply trying to find an example.

5 JUDGE KARIBI WHYTE: That was observation.

6 MR. GREAVES: The Tribunal has my apologies and I do

7 apologise for doing it. Your Honours will realise it is

8 very easy to do.

9 JUDGE KARIBI WHYTE: Yes. To be on the safe side avoid

10 mentioning names, if possible.

11 MR. GREAVES: It was the difficulty of trying to give an

12 example without leaving everybody completely in the dark

13 as to who I was speaking about. I do apologise.

14 I thank my learned friend for drawing it to my

15 attention.

16 JUDGE KARIBI WHYTE: You can continue.

17 MR. GREAVES: Well, I think that probably comes as a

18 convenient moment for me to say I have had my say and

19 I think I have made the points that I wish to make.

20 MR. MORAN: Your Honour, just one quick point as an example

21 involving a witness. One of the witnesses that

22 testified earlier for the Prosecution had both given a

23 written statement to the Prosecution and had given a

24 statement in a court in the former Yugoslavia involving

25 the same set of facts. Months before the trial started

Page 3031

1 those things were served on us. I am working from

2 memory and I may be a little off on dates, but either

3 while this person was actually testifying or the day

4 before, within a very short time of this witness' actual

5 testimony this nice man from the Office of the

6 Prosecutor wandered into our offices and handed us a new

7 copy and a new translation of this document from the

8 former Yugoslavia, complete with a bunch of hand

9 corrections on the document without any explanation of

10 who made these hand corrections, where they came from,

11 whether it was the witness that made them, whether there

12 were some changes in the files in the courts of the

13 former Yugoslavia. Whatever. This just magically

14 appeared in our offices. It is almost like a Chinese

15 water torture. Continually we are getting dribs and

16 drabs, often either immediately before a witness

17 testifies or within a very short period of time before.

18 The day before, two days before a witness is set to

19 testify we are presented with new particular involving a

20 particular witness.

21 At some point this gets to be something that

22 should not occur. At some point we have to say: "Okay.

23 You have got everything." On several occasions it has

24 been things that should have been and appear to have

25 been in the possession of the Prosecutor for some

Page 3032

1 significant period of time. All we are asking, or at

2 least all I am asking, the Trial Chamber to do is say:

3 "Wait a second. Let us give it to the defence counsel

4 a reasonable period of time before this evidence becomes

5 relevant or this witness is going to testify", so we can

6 sit and read it and think about it and try fit it in to

7 where everything else fits in.

8 Just on witness statements, I have got a box with

9 a stack of witness statements, what, about that thick,

10 and frankly being a western lawyer, sometimes the names

11 of the witnesses are a little hard to deal with and

12 where they all fit in, and when suddenly something is

13 dropped in to the middle of this, confusing is I think

14 an understatement, judge.

15 MS. RESIDOVIC (in interpretation): Your Honours, may I add

16 a few more arguments in addition to those presented

17 by my learned colleagues, namely the Prosecutor in his

18 response today says that it is not correct that the

19 defence does not know what the witnesses are going to

20 say each when the defence has now been served with the

21 statements of witnesses, referring to the brief note

22 added to the name of the witness. I think in this way

23 they are trying to convey the impression that they have

24 fulfilled their obligation under Rule 67. We wish to

25 underline the obligation of the prosecution under Rule

Page 3033

1 66A, which clearly states that:

2 "It is the duty of the Prosecutor to supply the

3 defence with all previous statements of Prosecution

4 witnesses".

5 Also Rule 66(B) on reciprocal disclosure

6 immediately, so that the defence may prepare its

7 cross-examination or rather prepare its case. In

8 addition to the names that my colleague Turone mentioned

9 from the list of witnesses, I could add that we still

10 have on the list witnesses under number 53, 56, 69 whose

11 names I may not utter, because I do not know whether

12 they may be protected. So I do not know how the

13 prosecution could have put these people on the list if

14 he has never spoken to those people, and if he does not

15 know what those people could testify about.

16 If the Prosecutor does know, then under Rule 66(B)

17 he is obliged to convey that knowledge to us. It has

18 already been said that this applies in particular to the

19 Politsie witness, General de Vogel, who is under number

20 46 on the list of witnesses. Not only is the

21 prosecution supplying us with documents with some delay,

22 as my colleagues have noted, in the notice submitted to

23 the court on May 13th, the Prosecutor proposed a list of

24 seven new witnesses who do not appear on the witness

25 list. The Prosecutor surely knows why he is proposing

Page 3034

1 these witnesses and he has probably received some kind

2 of statement from them, or in any other way learned

3 about the facts that these witnesses may testify to, and

4 though these new seven witnesses have been proposed, the

5 defence has not received a single document referring to

6 those witness to this day.

7 MR. TURONE: Well, your Honours, may I respond briefly to

8 these further arguments? The main point I would

9 emphasise is that there is absolutely no Rule in our

10 rules which requires necessarily that the prosecution

11 takes the previous statement in any case. Rule 66A

12 simply says that --

13 JUDGE KARIBI WHYTE: Actually I did not understand that

14 sentence. What were you trying to convey?

15 MR. TURONE: Rule 66(A) says:

16 "Supporting material which accompanied the

17 indictment when confirmation was sought as well as all

18 prior statements obtained by the Prosecution from the

19 accused or from Prosecution witnesses".

20 That simply means that whenever there is a prior

21 statement the prosecution is compelled to provide

22 defence lawyers with this prior statement, but it might

23 happen for some witnesses that no prior statement

24 exists, as it applies, for instance, with Mr. Beelen and

25 the other examples I gave earlier.

Page 3035

1 JUDGE KARIBI WHYTE: Have you read Rule 66(A)?

2 MR. TURONE: Exactly. Rule 66(A) --

3 JUDGE KARIBI WHYTE: What does it say?

4 MR. TURONE: It does say:

5 "As well as all prior statements obtained by the

6 Prosecutor" --

7 JUDGE KARIBI WHYTE: Start from the beginning.

8 MR. TURONE: "The Prosecutor shall make available to the

9 defence as soon as practicable after the initial

10 appearance of the accused copies of the supporting ..."

11 --

12 JUDGE KARIBI WHYTE: That is the relevant thing.

13 MR. TURONE: This is exactly what the prosecution did in due

14 time. We provided the defence with all the supporting

15 material and all prior statements obtained by the

16 Prosecutor from the prosecution witnesses. This is

17 exactly what the prosecution did.

18 JUDGE KARIBI WHYTE: That was the time practicable after

19 the initial appearance of the accused?

20 MR. TURONE: Yes. That is what happened.

21 JUDGE KARIBI WHYTE: The ones you are serving only

22 recently?

23 MR. TURONE: We provided the defence lawyers with all the

24 supporting material which accompanied the indictment and

25 with all prior statements obtained by the prosecution,

Page 3036

1 by accused and Prosecution witnesses. For a limited

2 number of witnesses as, for instance, Mr. Beelen, the

3 prosecution did not have a real technical witness

4 statement, a prior statement which we could be -- was

5 obtained by the prosecution from this particular

6 witness. The same applies with Mr. Moerbauer, for

7 instance, but what we are now saying in any case we

8 provided the defence lawyers with something which is in

9 any way equivalent to theoretical prior statement so

10 that no surprise there will be when such witnesses will

11 take the stand in this courtroom.

12 Since Mr. Greaves added something concerning

13 Mr. Moerbauer, again I will say the Prosecution is not

14 compelled to have a prior witness statement from

15 Mr. Moerbauer. Mr. Moerbauer is simply a police officer

16 who took part in a police operation concerning the

17 arrest of Mr. Mucic in particular and a number of

18 searches, house searches, which were requested by the

19 Prosecutor of this Tribunal through judicial assistance

20 by the Austrian authorities.

21 JUDGE JAN: Excuse me. You missed the point really. You

22 picked up that police officer because you know what he

23 is going to depose about. You must -- he must have

24 talked to you. That is a statement to you. Why did you

25 not give the gist -- if you have not recorded a written

Page 3037

1 statement, you can at least inform them: "This is the

2 oral statement he made."

3 MR. TURONE: We have a 50 page report signed by this police

4 officer.

5 JUDGE JAN: Have you given a copy of that report to the

6 defence?

7 MR. TURONE: Of course we did. We did and we informed our

8 esteemed colleagues on the defence of the existence of

9 this report and the availability for them of this report

10 with a letter written on December 16th 1996. So this

11 report was made available in the original German

12 language and an English translation and in

13 Serbo-Croatian translation a long time ago I would say.

14 We are in May now. So this as far as Mr. Moerbauer is

15 concerned, in this report there is exactly everything

16 concerning the official capacity of this potential

17 witness, about what he exactly did in his official

18 capacity pursuant to an Order of the Austrian

19 investigating judge in judicial assistance with this

20 Tribunal. This was provided to the defence with this

21 report a long time ago. So I would say that they know

22 exactly what Mr. Moerbauer is going to testify on. Of

23 course, they received a copy of the complete material

24 which was seized or anyway the material was put at their

25 disposal many, many months ago, and the possibility of

Page 3038

1 reading this 50 page report signed by Mr. Moerbauer is

2 something absolutely equivalent to a theoretical prior

3 statement which could have been taken by the Prosecution

4 maybe, but it was not, because we decided that when the

5 authorities of a government, a state, provide judicial

6 assistance to this Tribunal carrying on house searches

7 and seizures of documents and provide this Tribunal with

8 the result of this activity, and with a detailed report,

9 this would be absolutely enough, and there is only a

10 requirement, a reason for which a police officer who

11 carried on this activity should be called to the

12 courtroom in order to explain in the courtroom how he

13 proceeded and what happened exactly inside this police

14 operation and so on.

15 As far as the disclosure to the defence lawyers,

16 we did all what we had to do many months ago.

17 JUDGE JAN: But there is another point made that you still

18 keep on supplying them with statements earlier made by

19 the witnesses. If you had already done that before the

20 trial, then why keep supplying them with further

21 statements? What is the purpose? Then Mr. Moran has

22 made a point that the statements in respect of which

23 earlier he knew during the course of the trial --

24 MR. TURONE: I beg your pardon?

25 JUDGE JAN: Mr. Moran has made a point that even though you

Page 3039

1 supplied the statements earlier, now you are supplying

2 them with corrected versions during the course of the

3 trial corrected in their own hands. That is what

4 Mr. Moran is saying. If you have already done that --

5 MR. TURONE: I am sorry. There are some specific details

6 for which I would ask later on my colleague, Mr.s

7 McHenry, to answer, because I joined the team too late,

8 so there are some specific details I am not aware of.

9 So in a moment I will ask Mr.s McHenry to explain some

10 specific details. I want to say that in a general sense

11 the complaint of the defence lawyer that we for a number

12 of witnesses put the defence lawyers in a position not

13 to know absolutely what the witnesses are going to

14 testify on in this court is not true.

15 Another example, for Mr. de Vogel, de Vogel is an

16 expert witness, for which we provided on January 16th,

17 1997 the CV and a summary, a detailed summary of what he

18 might testify on if he will be actually called into this

19 courtroom. This is another example.

20 JUDGE JAN: There is another point also. Ms Residovic has

21 said that you have named certain witnesses, you included

22 them, but have not yet supplied them with what they are

23 going to say. She has given the numbers of those

24 witnesses to you.

25 MR. TURONE: There is another -- this applies also to what

Page 3040

1 Mr.s McHenry will explain to you quite soon. I think

2 I might give the floor to her. Thank you.

3 MS. McHENRY: Your Honour, I may not know every specific,

4 but to the extent I can help with a couple of things,

5 the Prosecution has given full and fair disclosure in

6 this case. The defence in this case have all invoked

7 I think it is Rule 66, the provision by which they can

8 even ask for more, and under which they have reciprocal

9 discovery obligations. So we have given them much

10 discovery. We continue to sometimes get new information

11 and when we get it, we give it to them. It does result

12 in material sometimes being given in dribs or drabs,

13 because that is how we have received it. We try, if

14 something is not urgent, to wait until we have several

15 things to give them and then give them to them, but the

16 fact of the matter is as part of full and fair

17 disclosure sometimes things are given in dribs and drabs

18 because sometimes we receive them in dribs or drabs.

19 With respect --

20 JUDGE JAN: You have not collected all your evidence before

21 the trial?

22 MS. McHENRY: No, your Honour. We have collected most of

23 it. Certainly any evidence we have they have been given

24 but, for instance, we continue to receive documents

25 sometimes from the witnesses, sometimes from another

Page 3041

1 government agency, sometimes from a non-governmental

2 agency. Any time we get something and we intend to use

3 it as evidence, we inform the defence of that. Any time

4 they think they have not received something in

5 sufficient time, something we intend to use as evidence,

6 they have every right when we seek to use it in evidence

7 to object and say: "Your Honour, we just received this

8 yesterday and it is unfair." Then that matter can be

9 litigated, because I mean many of their specifics, as

10 Mr. Turone has indicated are, in fact -- they have been

11 given the material.

12 It is the case to answer a couple of specifics

13 that I am aware of, we do, although I believe we are

14 only required to give Office of the Prosecutor

15 statements -- sometimes there are other statements.

16 Sometimes, for instance, we have received other

17 statements from the Bosnian government. They may not

18 even be reliable. They have may have been given under

19 duress. We may not even know, but if we have such

20 material, we give it to the defence.

21 I believe one example that they mentioned was a

22 statement not taken by the Office of the Prosecutor but

23 by some other non-governmental agency, which we gave to

24 the defence. They had the Office of the Prosecutor

25 statement since I think it was part of the supporting

Page 3042

1 material since the day of the initial arraignment, since

2 we gave all accused, I believe, copies of the supporting

3 material, including witness statements, on the date of

4 the first appearance. It is the case that sometimes

5 there are revised translations. When we get a revised

6 translation, we give it to the defence as soon as we

7 can, but the fact of the matter is when you are dealing

8 with translations sometimes they have to be revised. We

9 are not aware of any prejudice suffered by anyone. We

10 wish that translations were perfect the first time, but

11 that is not the case. So if we give them a revised

12 translation, that is because we are trying to make sure

13 that things are 100 per cent correct, and we give it to

14 them.

15 With respect to another example, for instance with

16 respect, I believe, to some recent witnesses that we

17 have served notice that we may seek to call, we have

18 given an indication of what we will -- that person will

19 testify about. Most of them are about documents and we

20 have previously informed the defence that would be

21 seeking someone to authenticate documents, and that had

22 been done months ago. To the extent that there are

23 Office of the Prosecutor witness statements, they will

24 be given. I know, for instance, in at least one

25 instance there is an Office of the Prosecutor statement,

Page 3043

1 but it is still being transcribed. They will have it

2 well in advance of us seeking leave to use the

3 statement. So I can only say that the prosecution has

4 and will continue to give full and open discovery

5 whenever possible. If we are going to use something as

6 an exhibit, we specifically tell the defence, and if

7 there is some clarification -- for instance, another

8 example is when a witness was here -- I believe Mr. Moran

9 talked about this -- a witness looked at her statement

10 and she made some minor corrections. They are not

11 particularly important, but we believed that it would be

12 fair to give the defence notice that she had made these

13 minor corrections. It had only happened when the

14 witness was here, which was a couple of days

15 beforehand. We gave them to the defence. I was not

16 aware there was any confusion about what they were, but

17 certainly the prosecution is always willing to clarify

18 any confusion to the extent it exists, but I do think

19 when the prosecution is acting fairly and in good faith

20 there is some obligation of the defence to ask us if

21 there is some miscommunication, because, for instance,

22 with Mr. de Vogel, they were given that on January 16th.

23 Now it was not Mr. Greaves. It was prior counsel. Had

24 he asked us about this, we could have shown him the

25 receipt and given him another copy, but there is some

Page 3044

1 obligation for the defence to indicate to us if there is

2 some clarification, because we are trying with respect

3 to all specifics to provide them what we can. I believe

4 if there is any prejudice, they can then object when we

5 seek to bring that into evidence.

6 MR. MORAN: One quick follow-up on what Miss McHenry just

7 said about that particular witness. This is the first

8 I have heard about who made those corrections, and when

9 they were made. I specifically asked that witness a

10 series of questions: "Did you make these?" "I don't

11 remember". At the same time I asked this witness did

12 the witness talk to anybody about their testimony after

13 they arrived in The Hague. The answer was "No." Under

14 Rule 68, exculpatory evidence, the Prosecutor at that

15 point had the obligation to say: "Judge, time out. What

16 this witness is saying may not be quite right." The

17 prosecution knows exactly which witness I am talking

18 about.

19 MS. McHENRY: I believe so. She is not a protected

20 witness.

21 MR. MORAN: Grosdana Cecez.

22 MS. McHENRY: If it is Mr.s Cecez, that is right. I was not

23 aware there had been any confusion about that. To the

24 extent that Mr.s Cecez did not remember having met me,

25 you certainly brought out she had met me. It was at the

Page 3045

1 end of the a gruelling cross-examination. I believed it

2 was clear -- the facts were clear and that the witness

3 did not do it. So I believe that the defence counsel

4 had all information and had there been any confusion, we

5 would have certainly -- had we known of any confusion,

6 we would have brought it to the attention -- but the

7 fact -- I was not present, for instance, I believe, when

8 she made these corrections. So I still do not believe

9 that, in fact, her testimony was incorrect other than I

10 do believe, as counsel pointed out, she had met me

11 before.

12 MR. MORAN: Your Honour, I think this just points out there

13 is something with the system where a witness says: "I

14 don't remember making these corrections. I don't know

15 who made them." I can find it in the transcript if you

16 want me to and I will xerox pages of it. Then she

17 testified at some great length: "No, I had not talked

18 about my testimony here with anybody. The only people

19 I talked to since I have been here were people and we

20 talked about knitting" or that kind of thing. At that

21 point the prosecution I think has an obligation under

22 Rule 68 to stand up and make some corrections. This is

23 absolutely -- this is the very first time I have ever

24 been told who made those corrections on her written

25 statement. If that information was in the possession of

Page 3046

1 the Office of the Prosecutor when she denied remembering

2 having done it, I think that is clearly exculpatory for

3 impeachment. It would be in my jurisdiction. I think

4 there was clearly an obligation on the part -- the

5 obligation does not go to Teresa McHenry or any

6 individual Prosecutor. The obligation runs to the

7 Office of the Prosecutor -- I was going to say the

8 sovereign or not -- the entity that is in charge of

9 Prosecution. The entire Prosecution team has that

10 obligation. They should not wait, what, six weeks to

11 make those kinds of disclosures.

12 MS. McHENRY: If I may be heard about that, because I think

13 it is a very serious allegation, as far as I know the

14 witness stated -- to be frank I do not remember this in

15 detail -- as far as the prosecution is aware, the

16 defence was given and I believe told that these minor

17 corrections had been made by her. If not, I believe

18 that is not a serious issue. All the witness stated was

19 she did not remember. In fact, I do not have an

20 independent recollection of what happened, but certainly

21 if defence counsel is correct, what she stated is she

22 did not remember at that time if she had made them. To

23 the extent that the witness did not remember having met

24 me, defence counsel, I believe, did bring out by her

25 prior statement that she presumably had seen me, whether

Page 3047

1 or not she met me, whether or not she knew who I was.

2 I think that was clear but I do not think that any

3 exculpatory material was fully brought out before the

4 court.

5 JUDGE JAN: But do you not indicate when giving a copy of

6 the corrected statement to the defence that she has made

7 these corrections when she has come to The Hague?

8 MS. McHENRY: Yes, your Honour, I believe, but, for

9 instance, in that instance I do not know, for instance,

10 that was done in writing, because it is just a matter of

11 you look at it. You decide these are minor

12 corrections. Should we give it to the defence or not?

13 Yes, let's give it to them. Certainly they would have

14 been told and I believe -- I certainly would have

15 thought they would have been told. I can't -- because

16 I was not the person who gave it to the defence counsel

17 -- I can't say that they were or were not told. If

18 Mr. Moran says he wasn't told, I accept that, but in such

19 a case I certainly think then there is some obligation

20 of the defence to ask someone in the Office of the

21 Prosecution: "Well, who exactly did this?" That is what

22 I believe. If the person to whom they are speaking does

23 not know, I certainly think they can bring it to the

24 attention of anyone on this bench and we will all make

25 sure that it is done. I can't -- the prosecution cannot

Page 3048

1 say every single thing works perfectly in every

2 instance. There are many defence counsel. There are

3 many accused and there are many documents. We do

4 everything possible and will continue to do so, but to

5 the extent that sometimes things are not perfect, I do

6 not believe it is fair for the defence to wait until

7 months afterwards and then throw up numerous

8 allegations, many of which can be disproved, many of

9 which would have been clarified, had they raised it,

10 given the amount of disclosure that has gone on here.

11 MR. GREAVES: Your Honour, the explanation that has just

12 been given to you about the witness Grozdana Cecez is a

13 clear example of what we are complaining about. It is

14 extraordinary that no proper note seems to have been

15 kept of when this woman made these alterations, when she

16 said anything at the time when she made these

17 alterations which might be germane to prosecution

18 examining her. That is precisely the point we make.

19 This is just not being done properly.

20 Can I deal with a number of matters that have been

21 raised? The fact of the matter is these documents come

22 to us into our room without any explanation, and I make

23 that absolutely plain. There is not a single note on

24 the document which is sent to us saying: "This is

25 additional evidence" or "this is exculpatory material"

Page 3049

1 and I use those phrases carefully, because exculpatory

2 material has a specific meaning within the rules of this

3 Tribunal.

4 Sometimes it comes at 4.30, 5 o'clock, after we

5 finish court and everybody has dispersed out of the

6 building. It may be that witness has to be

7 cross-examined in the morning and we go away at night

8 not knowing what on earth the purpose of this document

9 is. It is all very well saying: "You can find out when

10 the prosecution get up to examine their own witness."

11 You get taken by surprise and half the evidence gets put

12 before the court before you realise that they are

13 relying on this stuff. It is just not fair.

14 The next matter is this and it is a matter that

15 the learned Judge Jan picked up on. It is if a

16 conversation has been conducted with a witness, that is

17 a statement. Some might think that simply having an

18 oral statement with the witness is a means by which you

19 can get round the Rule 66(A), and that would be an

20 unfortunate thing if it was happening. I make no

21 allegation, but if it was being done for that purpose,

22 it would be unfortunate. Other names come to mind.

23 There is a huge list of people the prosecution now seek

24 to call in addition to their potential witness list. We

25 have no idea what -- sorry. You want to speak?

Page 3050


2 MR. GREAVES: A huge list of witnesses that the prosecution

3 want to add to their witness first. First of all, we do

4 not know what they are going to say so we do not know

5 whether we need to object to them being put on the

6 witness list. If they are going to say something that

7 is simply informal and innocuous, then one does not

8 object, but if they are going to say something that is

9 important and might put us at some prejudice, how do we

10 know how to formulate an objection to their request to

11 put them on the witness list?

12 Finally I add this. Let us have some more names.

13 Mr. Abribat, Mr. D'Hooge, Lieutenant Gschwendt who I am

14 now told is to be called next week, we have no idea what

15 they are going to say. I know what subjects they are

16 going to talk about but I have no idea of the detail so

17 I can compare versions of those witnesses where they

18 speak about the same matters. In order to be able to

19 properly cross-examine people it is, in my respectful

20 submission, at the very foundation of this Tribunal's

21 Rules that the defence shall be given a reasonable

22 opportunity of knowing what is to be said -- and I have

23 quoted to your Honours in the motion a number of cases

24 from the European Court of Human Rights which set out

25 that very proposition -- a reasonable opportunity of

Page 3051

1 presenting its case to the court under conditions which

2 do not place him at a substantial disadvantage vis-a-vis

3 his opponent. When these things happen a substantial

4 disadvantage is created and it is unjust.

5 The fact we have not complained so far indicates

6 no more than this, that we have been tolerant and have

7 been slowly working out what has been done to us, but we

8 now object to it. We think it is unfair and the pattern

9 of conduct that has been doing on is putting us at, on

10 occasion, substantial disadvantage, not knowing what the

11 purpose of these documents is, not knowing, for example,

12 where they have come from. My learned friend indicates

13 a witness might well have brought their own statement

14 along. It would be interesting to know that because

15 that is a matter we might want to cross-examine the

16 witness about. "Why have you suddenly produced this?

17 Why have you not told anybody about this beforehand when

18 you were being interviewed by the prosecution?" So we

19 are being deprived of small but important bits of

20 information. That is unfair. That is why the defence

21 team, because we have all signed this motion, has put

22 this matter before the court. We have put what I hope

23 is a well ordered procedure by which this court can

24 control this particular problem. It is a simple

25 procedure and one which exists, I suspect, in many of

Page 3052

1 your Honour's jurisdictions, and is there to ensure that

2 Prosecution get their act properly together.

3 JUDGE JAN: So your complaint is about the shortness of

4 notice. That can be sorted out.

5 MR. GREAVES: That is part of it, but I am very concerned

6 about not knowing --

7 JUDGE JAN: As regards the sort of evidence which a new

8 witness is to give, they have to seek our permission

9 before producing a witness not included in the list that

10 at that stage we can always find out what is the purpose

11 and why that particular witness is being examined.

12 MR. GREAVES: I mean --

13 JUDGE JAN: That will give you enough notice.

14 MR. GREAVES: There are often occasions during the course of

15 trial when a point arises that you need to deal with and

16 everybody accepts that that happens in any jurisdiction

17 but it is the rather haphazard way in which it happens

18 which is so disconcerting. If there is a proper

19 framework -- your Honours, of course, are in control of

20 this court and this case -- it gives your Honours an

21 opportunity to control what is happening. To a certain

22 extent we can deal with matters behind the scenes, but

23 your Honours have to be in possession of a regulatory

24 system, if there is a complaint, so that your Honours

25 can deal with it properly. The proposition I have set

Page 3053

1 out before you, which we set out before you is, I hope,

2 a sensible one which gives you a good system by which

3 you can exercise that control. I am perfectly prepared

4 to listen to other suggestions -- alterations as to how

5 you do it, but it is a proposition. It is intended to

6 assist the court to deal with this problem more

7 expeditiously and deal with the problem. I hate going

8 to the Prosecution and complaining. I would rather not

9 have to do that but rather have a well organised system

10 where I do not need to run off to the Prosecution and

11 say "I have not got this. What is this document about

12 and where did this come from?" It would be much nicer

13 if they gave us the information from the word go and

14 then we would not have to do it. It is time-consuming

15 and unfair particularly when it happens late in the

16 afternoon. That is the complaint. Your Honours have

17 been given a system whereby you can control it.

18 JUDGE KARIBI WHYTE: Thank you very much. I think we are

19 satisfied with the arguments. We will later give our

20 Ruling on the motion. I think we can proceed to the

21 second one, although we have not received any response

22 on it, the designation of an expert witness. I think

23 you are withdrawing that, or are you still --

24 MS. McHENRY: I believe this is Mr. Delic's motion and the

25 prosecution -- we believe that there was a response

Page 3054

1 being filed but maybe it has not made its way, but the

2 short answer is we do not object to Mr. Delic calling the

3 expert witness if he wishes to do so.

4 JUDGE JAN: That is enough.

5 JUDGE KARIBI WHYTE: That is all right. I think we have

6 nothing against that.

7 There is also Prosecution's motions to compel

8 disclosure of addresses of witnesses. I think we have

9 not had a response to that but I know that can be

10 argued.

11 MS. McHENRY: I think there has been a response to that one,

12 your Honour.

13 MR. ACKERMAN: There has been. I filed a response, your

14 Honours, on May 20th.

15 JUDGE KARIBI WHYTE: Okay. So I think we can argue that.

16 Can we argue it now?

17 MR. ACKERMAN: That is fine with me. Do you want to hear

18 from Prosecution first or would you like to hear from

19 me?

20 JUDGE JAN: It is your motion.

21 JUDGE KARIBI WHYTE: It is your motion.

22 MR. ACKERMAN: It is actually my response. It is their

23 motion.

24 JUDGE JAN: You are quite right. Any objection to the

25 disclosure of addresses?

Page 3055

1 THE INTERPRETER: Microphone please, your Honour.

2 JUDGE JAN: You must give material to identify the

3 witnesses, maybe not the addresses. Any objection to

4 the disclosure of their addresses?

5 MR. ACKERMAN: Yes, your Honour.

6 JUDGE JAN: We have to give some material to identify the

7 witnesses.

8 MR. ACKERMAN: The irony, I guess, of the motion filed by

9 the Prosecutor is that some time ago before my arrival

10 the defence had filed a motion asking for the disclosure

11 of the addresses of Prosecution witnesses and the

12 prosecution argued very strenuously against that and

13 gave a lot of reasons why it was inappropriate for us to

14 have the addresses of their witnesses, even though we

15 had said it was very important for us to be able to

16 interview them, talk to them, things of that nature.

17 That is clearly the same reason, the same reason we had,

18 that the prosecution wants us to disclose addresses of

19 our witnesses, so they can go look them up, talk to

20 them, and things of that nature. To so strongly have

21 opposed our request in that regard and then to turn

22 around a month or two later and say: "But we want the

23 address of your witnesses" is just kind of ironic to me.

24 JUDGE JAN: It is not reciprocal.

25 MR. ACKERMAN: I am sorry.

Page 3056

1 JUDGE JAN: It is not reciprocal.

2 THE INTERPRETER: Microphone, please, your Honour.

3 MR. ACKERMAN: That is what has happened.

4 JUDGE JAN: You know what the Ruling of the Trial Chamber

5 was to a motion. It said that some identifying material

6 has to be provided. The rule only relates to witnesses

7 for the prosecution but perhaps the same rule can be

8 extended to defence witnesses also. Give some material

9 to the Prosecution by which your defence witness can be

10 identified.

11 MR. ACKERMAN: Your Honour, I do not think we have any

12 serious objection to giving them some material, but

13 based upon the events that we have been talking about

14 now for the last couple of weeks, and especially

15 considering the physical location of most of these

16 witnesses that we have in mind, and we have not, of

17 course, finished that list yet -- we have still an

18 investigator working -- given in mind their physical

19 location, I would not want to risk putting those

20 witnesses in physical danger. We are in a position --

21 JUDGE KARIBI WHYTE: Excuse me, please. But if you look at

22 Rule 67(2)(A), I think it is quite specific, especially

23 those cases of alibi and mental deficiency.

24 MR. ACKERMAN: Rule 67 itself.


Page 3057

1 MR. ACKERMAN: Yes, I am totally familiar with it. I

2 referred to it in my response. Rule 67 itself is

3 entitled "Reciprocal Disclosure". Reciprocal means when

4 we get something we have to give them its reciprocity.

5 Now they have declined to give us their witness

6 addresses, and therefore there is no reciprocity

7 involved.

8 JUDGE KARIBI WHYTE: No, but that is not what 2(A) says.

9 It names what you should do in those cases of alibi.

10 MR. ACKERMAN: I agree that is the language of the Rule,

11 your Honour. I have also pointed that out. Let me

12 bring your attention to Rule 66.

13 JUDGE KARIBI WHYTE: Yes, I have seen that.

14 MR. ACKERMAN: Rule 66(C) I think is poorly drafted because

15 the reasons for Rule 66(C) and for the Prosecutor's

16 ability to protect disclosures under 66(C) apply with

17 equal force to the defence. There is no reason that

18 should be limited to the Prosecutor, because we can find

19 ourselves in the exact position that that Rule

20 contemplates with regard to disclosure.

21 Now my concern, and my concern very clearly, your

22 Honour, is this. Beyond the language of these rules

23 this court has both the power and the obligation to

24 justice in this case, and my concern is this. There was

25 a release of information that was confidential from this

Page 3058

1 court, and we have been talking about it now for the

2 last couple of weeks. We have no idea -- there is no

3 evidence right at this point as to how that information

4 made its way into the public, but it did. It got there

5 somehow. Until it is known what the leak is of

6 information coming out of this building, and we do not

7 know what that leak is, none of us, I do not think, can

8 with confidence publish and distribute around this

9 building information as sensitive as the address of a

10 witness who is living in an area today where he could be

11 subject to immediate retaliation if his name and address

12 became known to some persons in that location. That is

13 what I am resisting.

14 JUDGE KARIBI WHYTE: You are trying to avoid complying with

15 the provisions of that Rule.

16 JUDGE JAN: Please read 67(A)(2)(B).

17 MR. ACKERMAN: I am familiar with that.

18 JUDGE JAN: Please read it a little.

19 MR. ACKERMAN: You want me to read it out loud, your

20 Honour?

21 JUDGE JAN: Yes, please do.

22 MR. ACKERMAN: "Any special defence, including that of

23 diminished or lack of mental responsibility, in which

24 case the notification shall specify the names and

25 address was of witnesses and any other evidence upon

Page 3059

1 which the accused intends to rely to establish the

2 special defence".

3 JUDGE JAN: The names and addresses of the witnesses.

4 MR. ACKERMAN: It is very clear.

5 JUDGE KARIBI WHYTE: Both in (A) and (B).

6 MR. ACKERMAN: It is also unfair because there is no

7 comparable Rule --

8 JUDGE JAN: We have to take the rules as they are, but we

9 can ask the prosecution not to disclose the information

10 outside --

11 JUDGE KARIBI WHYTE: They will have to protect whatever --

12 JUDGE JAN: We have to take the rule as it is. We cannot

13 say we are going to change the Rule.

14 MR. ACKERMAN: When the names of the witnesses were supplied

15 by the prosecution, they were supplied with requests for

16 protection. They were supplied confidentially. Somehow

17 they made their way outside this chamber.

18 JUDGE KARIBI WHYTE: Violations are natural in human

19 activities. If because one incident has occurred it

20 does not mean that it will keep occurring at every

21 occasion. We will have to abide by the rules. Rules

22 are made to be obeyed. We expect to obey them.

23 MR. ACKERMAN: Your Honour, the problem is not with a

24 doctor, a psychiatrist, someone like that, who is going

25 to come and talk about diminished or lack of

Page 3060

1 responsibility. Those either have been or are going to

2 be supplied: names, addresses, CVs, statements.

3 Anything we have on that of course will be supplied to

4 the Prosecution. I am talking about people that are

5 living in an area where tensions have not subsided, who

6 could you threaten by the disclosure of their names and

7 addresses.

8 JUDGE KARIBI WHYTE: And the provision of protection is

9 extended even to the defence. It is not only for

10 Prosecution witnesses.

11 MR. ACKERMAN: I understand.

12 JUDGE KARIBI WHYTE: Yes. You are entitled to the same

13 protection.

14 MR. ACKERMAN: If it is to be the Ruling of this court that

15 we must comply specifically with (A) (2)(b) by its very

16 terms, then we will be making applications for

17 protection for some of those witnesses just because of

18 the sensitive position they are in where they are living

19 today. We will be doing that.

20 JUDGE KARIBI WHYTE: You are entitled to do that.

21 MR. ACKERMAN: Beyond that, I think --

22 JUDGE KARIBI WHYTE: We will leave it to circumstances, but

23 definitely you are entitled to protection.

24 JUDGE ODIO BENITO: Of course.

25 JUDGE KARIBI WHYTE: If your witnesses are so endangered.

Page 3061

1 MR. ACKERMAN: I think that concludes anything I have to say

2 about the motion.

3 MS. McHENRY: Your Honour, I will just respond very

4 briefly. Your Honours have pointed out that it is

5 required under the Rules and what the accused is really

6 seeking is an amendment to the Rules. Although it is

7 reciprocal, it is entitled to reciprocal disclosure,

8 there is not exact parody in everything. For instance,

9 in some things the prosecution has to do more. With

10 respect to addresses the rules clearly make a

11 distinction. With all due respect, given that the

12 prosecution has -- the accused by their nature are here

13 because they are accused of serious war crimes, and

14 I think that may explain the drafter's change, but to

15 answer any of Mr. Ackerman's concerns, the prosecution is

16 certainly willing to take extraordinary measures with

17 respect to the disclosure he will give us. We will not

18 provide it to other accused or other defence.

19 I note that previous counsel has supplied us in

20 the beginning with addresses and witness statements of

21 some of his witness, and those have not been disclosed

22 to anyone, and they will not be. So we are certainly

23 prepared, and I believe can work with Mr. Ackerman to

24 make sure that such material is fully protected. Thank

25 you.

Page 3062

1 JUDGE KARIBI WHYTE: I think we should conclude this debate

2 on this motion. We will give a Ruling later.

3 Should we take number five now, the leave to call

4 Mr. Regis Abribat as a witness?

5 JUDGE JAN: Just for a minute. Is it the same gentleman

6 recorded --

7 THE INTERPRETER: Microphone please, your Honour.

8 JUDGE JAN: Is it the same gentleman who recorded a

9 statement of Mucic in Austria?

10 MR. OSTBERG: He is, indeed, yes.

11 JUDGE JAN: I think Mr. Greaves wanted that investigator

12 called.

13 MR. GREAVES: I can probably assist as to the point that

14 exists before my learned friend addresses you. In

15 principle he is on -- this man is already on the witness

16 list, so I have assumed that he was going to give

17 evidence or was likely to give evidence. I make that

18 concession and say that I do not object to him being

19 called as a witness, but I make that concession in the

20 light of what I have argued this morning on the motion

21 earlier on. So I think that may shortcircuit what my

22 learned friend has to say. In principle I do not object

23 to him being called, but it is subject to the Ruling

24 that you are going to have to give in the other matter.

25 MR. OSTBERG: And, your Honour, to this motion on leave to

Page 3063

1 call Mr. Regis Abribat, I would like to put even another

2 name orally pertaining to the same matter, because this

3 is, as your Honours will recall -- comes out of what

4 Mr. Greaves said on Thursday, 8th May for the first time

5 during the proceedings, and made serious allegations of

6 oppression in connection with what happened with

7 Mr. Mucic when he was interviewed in Vienna. To this

8 there has surfaced a new person, an Austrian police

9 officer by the name of Hansel Gschwendt, who was present

10 when Mucic appeared.

11 JUDGE JAN: Give up his right to counsel.

12 MR. OSTBERG: Yes. I have already informed Mr. Greaves we

13 have would like to put this name of Hansel Gschwendt on

14 our list. As I understand it, we already have his

15 support to that.

16 MR. GREAVES: I make the same comment about Gschwendt. I do

17 not object to him being called but it is subject to my

18 observation, I have already made.

19 THE INTERPRETER: Microphone, please.

20 JUDGE JAN: Quite obviously he is talking about the

21 circumstances -- your grievance was that earlier he had

22 been insisting that he must have counsel.

23 MR. GREAVES: Yes.

24 JUDGE JAN: Then suddenly he changes his mind and says he

25 does not want counsel. So you have a good opportunity

Page 3064

1 to examine the investigator.

2 MR. GREAVES: Oh, yes. I hope my concession that I have

3 made is a helpful one.

4 MR. OSTBERG: Thank you. That concludes the argument from

5 my side, your Honours. I ask for leave for these two

6 persons to be put on the witness list, the names being

7 Mr. Regis Abribat and Mr. Hansel Gschwendt. Thank you,

8 your Honour.

9 JUDGE KARIBI WHYTE: Mr. Ostberg I think you are concerned

10 with the next motion, the motion to specify the

11 documents disclosed that the Delalic defence intend to

12 use and serve. Is that your motion?

13 MR. OSTBERG: I give the floor to Ms McHenry.

14 JUDGE KARIBI WHYTE: I want to know how long it will take

15 because I do not think it is anything on the short

16 side. No response has been received by the defence.

17 JUDGE JAN: Have you filed any response to the last

18 motion? It is not before me.

19 MS. RESIDOVIC (in interpretation): We are prepared to

20 respond during the hearing, your Honour.

21 JUDGE KARIBI WHYTE: You could respond.

22 MS. RESIDOVIC (in interpretation): We can, yes.

23 MS. McHENRY: Yes, your Honour. In terms of the prosecution

24 presentation, it will be very brief. I mean, we have

25 made our motion and I think the issue is -- I have

Page 3065

1 discussed this at length with Ms Residovic outside the

2 courtroom. I think there is a clear issue in dispute

3 but I do not think it is a particularly time-consuming

4 one.

5 JUDGE KARIBI WHYTE: This being the last thing on the list,

6 we either take this motion and close for the day,

7 against coming back tomorrow morning or we adjourn and

8 come in the afternoon but I prefer my first suggestion.

9 MR. OSTBERG: May I be heard on that also? That goes to our

10 witness list, your Honour, and our possibilities of

11 tomorrow bringing witnesses. I could bring my witness

12 list immediately if it could be --


14 MR. OSTBERG: This is how it goes. Our next witness will be

15 Dr O.

16 JUDGE KARIBI WHYTE: You can bring him tomorrow morning?

17 MR. OSTBERG: He can be here tomorrow at 2.30 at the

18 earliest. Our second witness will be, depending on the

19 leave of the Trial Chamber, Mr. Regis Abribat, and our

20 third witness would be Mr. Bart D'Hooge and the fourth is

21 Mr. Hansel Gschwendt. On the orders. I say nothing

22 specific about the orders. These are the four we can

23 envisage to start with certainty on Monday morning. Dr

24 O seems to arrive at a time that he can be heard

25 tomorrow at 2.30. It is up to the Trial Chamber.

Page 3066

1 JUDGE KARIBI WHYTE: It is all right. We can cope with

2 that. We will take this motion now.

3 MR. OSTBERG: Okay.

4 JUDGE KARIBI WHYTE: And see if we can finish in time and

5 close for the day until tomorrow morning. So let us

6 hear Mr.s McHenry.

7 MS. McHENRY: Your Honour, I believe the -- I will not

8 repeat what is in my motion. The motion sets out more

9 explicitly what the details are, but the general issues

10 is what is meant under both the prosecution and under

11 the reciprocal obligations of the prosecution and

12 defence with the requirement that the other party must

13 be allowed to inspect the material that may be used in

14 evidence.

15 As I have indicated in this case, the defence have

16 sought the discovery, including things that may be

17 material to the preparation of their defence and they

18 have now reciprocal discovery obligations under which

19 they and the prosecution are required to allow the other

20 party to inspect the material that will be used as

21 evidence during the trial.

22 In this case the prosecution has given the defence

23 access to large material. In fact, this would almost be

24 considered an open file kind of discovery. We could

25 have certainly said to the defence: "We are giving you

Page 3067

1 all these thousands of documents and we may use all of

2 them in evidence." We did not think that was fair or

3 consistent with the spirit or the letter of the law. So

4 we provide all the material and then to the extent we

5 intend to use something as evidence, we specifically

6 notify the defence: "This will be used as evidence in

7 trial".

8 In response we have asked the defence to indicate

9 to us which material they will use as evidence in trial,

10 as they are required to do, and they have indicated

11 certain documents they have given us and said: "We

12 intend to use these", but with respect to hundreds, and

13 I would guess even more than that, thousands of

14 documents that the Prosecution had provided to the

15 defence, either because they were seized from the

16 accused or because we received them from the Bosnian

17 government, the defence states: "We reserve the right to

18 use any of these." Because some of these documents have

19 not been translated into English, for instance, and they

20 are not required to be -- they are originally in

21 Serbo-Croatian -- or, to be frank, with respect to some

22 of the documents from the Bosnian government we do not

23 believe are reliable, we are in a position of not

24 knowing in effect what the defence is going to use in

25 evidence. Therefore, we do not know which documents to

Page 3068

1 get translated. We do not know which documents we need

2 to investigate to seize if, in fact, they are

3 authentic.

4 So we believe that just as the prosecution is

5 required to specifically and in good faith give a

6 specific listing of what items will be used rather than

7 an all-encompassing everything, the defence should be

8 required to do the same.

9 Now, we have indicated, of course, that we do not

10 expect anything they tell us now or in the near future

11 to be 100 per cent final. Of course things are going to

12 change. It may depend on exactly what the prosecution

13 does. It may depend on additional material they find.

14 It may depend on their own investigation. The

15 prosecution is not asking for 100 per cent final list

16 such that they will never be allowed to use anything

17 else, but we are asking for a good faith reporting of

18 exactly what at the present time they intend to use in

19 evidence. That is the issue.

20 JUDGE JAN: Supposing the defence states that they intend

21 to use all the documents. They can, of course, give

22 certain documents when they enter upon defence. What

23 are you going to do then?

24 MS. McHENRY: As the prosecution has stated many times --

25 JUDGE JAN: All these documents have been supplied by you

Page 3069

1 to the defence.

2 MS. McHENRY: All the documents have been provided to the

3 defence as part of disclosure. The prosecution has not

4 said they find them reliable or even have them

5 translated, know exactly what each of them means.

6 That's right. It is, as the prosecution has stated many

7 times before -- we have the utmost respect, both

8 professional and personal, for Ms Residovic, and I, in

9 fact, do not believe that Ms Residovic could or would in

10 good faith stand up and say: "We are going to introduce

11 to the Trial Chamber the thousands of documents." In

12 fact, we attached a letter that Mr. Ostberg had written

13 to Ms Residovic that said: "Please advise us whether, in

14 fact, it is your intention to use every single

15 document". The response there. I do not believe the

16 response indicates they intend to use every single

17 document. I believe, and also from the conversations

18 with Mr.s Residovic, what she reserves is her right to

19 use any of the documents, but she does not, and I would

20 submit frankly cannot in good faith say that she intends

21 to use every single one of these thousands of

22 documents.

23 JUDGE KARIBI WHYTE: Can we hear Ms Residovic on the

24 motion?

25 MS. RESIDOVIC (in interpretation): Your Honours, I can

Page 3070

1 state here that as the defence counsel of Mr. Delalic and

2 the whole defence team will fully abide by the

3 obligations envisaged by the statute and the rules of

4 this Tribunal. Only by respect of those rules and their

5 strict implementation puts me in a position to act in

6 good faith and only by acting in that way can I defend

7 my client.

8 Allow me to say that I am extremely surprised by

9 the request of the prosecution, which is not grounded in

10 the obligations of the defence according to the rules.

11 Before giving an explanation, the defence would propose

12 that this request of the prosecution be rejected. I

13 will explain myself further.

14 It is 29th May 1997 today. I may call it famous

15 or infamous year has gone by since 29th May 1996, when

16 the defence of Mr. Delalic proposed the implementation of

17 the provision, of article 66(B) -- of Rule 66(B), and

18 whenever it had at its disposal any document, it

19 disclosed it to the Prosecution so that the prosecution

20 has received from Mr. Zejnil Delalic's defence a large

21 number of documents, some of which it will use as

22 evidence in these proceedings. Since then the defence

23 of Zejnil Delalic has submitted to the Prosecution,

24 although it is not obliged to do so by the rules, but in

25 the interests of the defence, in the interests of the

Page 3071

1 efficiency of the proceedings, in the interest of the

2 prosecution gaining access to exculpatory material, we

3 served on the prosecution 30 statements of witnesses.

4 On that basis the prosecution conduct hearings,

5 interrogations of a large number of people in

6 Bosnia-Herzegovina and some of those appear on their

7 list of witnesses.

8 This conduct on the part of the defence counsel of

9 Mr. Zejnil Delalic is not only an open file approach and

10 full compliance with the Rule 66(B) and 67(C), so that

11 I cannot understand this objection on the part of the

12 prosecution that possibly it has failed in some respect

13 in fulfilling its obligations.

14 Allow me to add that in addition to this kind of

15 conduct throughout 1996 we have received, I must admit,

16 a large number of documents from the prosecution, but

17 since we had to have a ruling by the Trial Chamber to

18 receive the statement of Mr. Mucic, which the prosecution

19 had in its possession since May, but we received it much

20 later. Also other documents reached us mostly in

21 December 1996, but they were dated, some of them, in

22 1995.

23 What I said already before regarding the way in

24 which we received those documents, even if we did

25 receive them we did not receive them as efficiently as

Page 3072

1 we should have and as the defence has sought to do in

2 fully respecting rules 66(B) and 67(C).

3 Allow me now to refer to the crux of the problem

4 we have before us. When we ask for addresses and other

5 data on Prosecution witnesses, we know what the answer

6 was. I have already said that in the interest of a fair

7 trial, and I wish to contribute to it, we provided

8 statements together with all the addresses of

9 witnesses. What is the prosecution asking of us now?

10 It is asking for something that I do not consider to be

11 an obligation stipulated in any rule of our Rules of

12 Procedure, namely the prosecution again after the Ruling

13 of this Trial Chamber that all material be disclosed to

14 us and served on us, which was seized during the search

15 of the premises, private and business offices of

16 Mr. Zejnil Delalic, the Trial Chamber ruled that all the

17 material be returned to us that will not be used in

18 preparation of the trial. The date of that ruling is

19 October 9th, 1996.

20 The prosecution returned to us among the written

21 papers only one document, an ID card. As for

22 videotapes, we received 30. 4,000 papers of various

23 kinds which have nothing to do with this trial have been

24 kept by the prosecution, and we were supplied with

25 photocopies of those materials, and they did so -- they

Page 3073

1 also provided about 60 video tapes following the ruling

2 of the Trial Chamber.

3 Our obligation, according to 67(c) is, referring

4 to the provisions of 66(B):

5 "The prosecution is entitled to examine all books,

6 documents, photographs and tangible objects in his

7 custody or control".

8 Your Honours, those are documents and objects

9 which the prosecution has been holding since 18th March

10 1996 in the original, which it is analysing, translating

11 and doing whatever it considers necessary, and copies of

12 which have been served on the defence. I do not know

13 what the prosecution expects of us. Copies of the

14 documents that they have been holding for more than a

15 year. So I really do not understand this request on the

16 part of the prosecution for some kind of an obligation

17 regarding materials that are already in their

18 possession. We have tried to explain to the Prosecution

19 that they should act in accordance with the decision of

20 9th October. Return to us all the originals, and then

21 if we feel that we need to show you again something that

22 you have already seen, then we will do it, but as you

23 have not done that, we do not know what we can disclose

24 to you when you are holding everything. That is one

25 side of this issue.

Page 3074

1 Regarding other documents, they were received from

2 our government. When those documents were supplied, we

3 received copies of those documents. Again we do not

4 know, nor do we see anywhere in the rules where is our

5 obligation for them to examine any document which we now

6 have because they were given to you by the prosecution,

7 for them to look at again, though they can look at them

8 every day because they have them in their offices. That

9 is why we feel that our obligation has been fully

10 complied with. Under 67(c) it says cumulatively that

11 Prosecution should be given all books, documents,

12 photographs, tangible objects, and the prosecution is

13 already in possession of those and also what evidence we

14 intend to use. The defence has no obligation to provide

15 a list of witnesses or list of documents that it intends

16 to use in the trial. We have a Ruling to that effect

17 from this Trial Chamber. But who can tell the defence

18 which of the documents among the 4,000 it will use? It

19 depends on the presentation of the case by the

20 prosecution. We maybe use 4, 400 or 40. We may even

21 end the defence of my client with the presentation of

22 evidence on the part of the prosecution. Therefore,

23 again we do not see any reason for this request nor do

24 I see any obligation that the defence might have to

25 fulfil any obligation has been explained in this motion

Page 3075

1 on the part of the prosecution.

2 I repeat once again that the defence gave to the

3 Prosecution in January in addition to everything it gave

4 in 1996 also precise indications of documents, more than

5 100. I do not think that the prosecution could have

6 collected as many in two years of its investigation

7 which it will be using in the proceedings. So we feel

8 that the defence has absolutely no obligation on the

9 basis of the statute or the Rules of Procedure with

10 respect to the Prosecution, that it has fulfilled all

11 its obligation in time and immediately and in the future

12 if it gains possession of any document or object which

13 the prosecution does not have, it will supply them with

14 it.

15 I do not know whether there is any need for any

16 further explanations. I think that we are now in a

17 situation in which we again are confronted with the

18 question whether the prosecution is serving on us all

19 the material it has. Unfortunately I cannot provide the

20 name of the witness, but according to my investigation

21 in the field, I learned that the prosecution is taking

22 some statements from witnesses, and I would like to ask

23 the prosecution whether it is indeed doing that or is it

24 correct for the defence to find that out, as we did in

25 the case of Mr. Hadzihuseinovic. So I think we come back

Page 3076

1 to the previous question. The defence of Delalic has

2 fully complied with its obligation and we will seek to

3 do that in the future as well.

4 JUDGE KARIBI WHYTE: Have you any replies to what has been

5 said, essentially the last statements about continuing

6 taking of statements?

7 MS. McHENRY: Your Honour, it is the case that the

8 prosecution, yes, is continuing to take statements, and

9 if they are relevant to the material of the preparation

10 of the defence, or the prosecution intends to seek leave

11 to call the person as a witness, the defence will get a

12 copy of the statement. The only other thing that

13 I would add is, Ms Residovic is correct that she has

14 given us, and I tried to say this in my initial argument

15 -- notice of some documents she will use and we are

16 satisfied with that disclosure. The only issue has to

17 do with the obligation and in this case it is the same

18 obligation for both the prosecution and the defence, to

19 allow the other side to inspect material that may be

20 used in trial. The prosecution did not and would not

21 think it fair under the letter and spirit of these

22 rules, which we believe must be read reasonably, to give

23 them 4,000 documents and say we may use these in trial.

24 It is exactly the same for the defence and we believe it

25 is up for your Honours to interpret the rule. It will

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1 apply to both sides equally. We believe that the rules

2 must be read reasonably and must be a reasonable attempt

3 to specify what, in fact, will be used in trial. That

4 is everything. Thank you.

5 JUDGE KARIBI WHYTE: Thank you very much. I think we will

6 give a Ruling on this matter later, because it is not as

7 difficult as it is envisaged.

8 Now because of the difficulties we have had for

9 the past two weeks I think we should tomorrow morning

10 try and have a status conference to reassess how you are

11 readjusting to the bringing of your witnesses. We have

12 tried for some time to find out how long it might take

13 you to conduct the case of the prosecution, so that we

14 will have an estimate of how much the defence also will

15 organise itself. So tomorrow morning at 10.00 am we

16 would like to have a status conference. Then at 2.30 we

17 can now carry on with your witnesses. That should

18 complete the proceedings of the week.

19 The Trial Chamber will now rise and reassemble

20 tomorrow morning.

21 (12.50pm)

22 (Hearing adjourned until 10.00 tomorrow morning)

23 --ooOoo--