1 Monday, 2 May 2005

2 [Open session]

3 --- Upon commencing at 9.07 a.m.

4 [The accused entered court]

5 JUDGE AGIUS: Yes. Could you call the case, please.

6 THE REGISTRAR: Good morning, Your Honours. This is case

7 IT-03-68-T, the Prosecutor versus Naser Oric.

8 JUDGE AGIUS: I thank you.

9 Mr. Oric, can you follow the proceedings in a language that you

10 can understand?

11 THE ACCUSED: [Interpretation] Good morning, Your Honours, ladies

12 and gentlemen. Yes, I can.

13 JUDGE AGIUS: I thank you. You may sit down. Good morning to

14 you.

15 THE ACCUSED: [Interpretation] Thank you.

16 JUDGE AGIUS: Appearances for the Prosecution.

17 MR. WUBBEN: Good morning, Your Honours. My name is Jan Wubben,

18 lead counsel for the Prosecution. I'm here together with co-counsel

19 Ms. Patricia Sellers and our case manager Ms. Donnica Henry-Frijlink. And

20 also good morning to Defence team.

21 JUDGE AGIUS: And good morning to you, Mr. Wubben, and your team.

22 Appearances for Naser Oric.

23 MS. VIDOVIC: [Interpretation] Good morning, Your Honours. My name

24 is Vasvija Vidovic. Together with Mr. John Jones I appear for Mr. Naser

25 Oric. We have with us today our legal assistant Ms. Adisa Mehic and our

1 case manager Mr. Geoff Roberts.

2 JUDGE AGIUS: Thank you, Madam Vidovic, and good morning to you

3 and your team.

4 I hope you all had a good weekend and enjoyed the sun and the

5 warmth, the weather we had over the weekend here.

6 Any preliminaries before we bring in the witness?

7 MR. WUBBEN: Yes, Your Honour.

8 JUDGE AGIUS: Yes.

9 MR. WUBBEN: And to start with your remark, the Prosecution didn't

10 feel like a good weekend. This weekend has as an outcome a

11 decision-making that is rather disappointing for the Prosecution. We

12 decided not to call this witness. We decided not to call this witness

13 because for two days of proofing showed us that this witness was not

14 cooperative in giving his information as we put questions towards him, and

15 he is not -- and that's also the outcome of the -- of this evaluation. He

16 will not be supportive to the strategy of the Prosecution to prove our

17 case.

18 That means, and that's why it's disappointing, that we projected

19 this witness as being an important witness, an insider witness. We

20 scheduled the witness accordingly. We -- he had given two statements to

21 the Office of the Prosecutor, and thus we were indeed confident to go

22 forward with him recently, in August last year, but yet these are events

23 that might happen, and we regret to say that indeed we will not call him

24 as a witness today.

25 We regret also the aspect of the projected days that we scheduled

1 him as a witness, and we will try to reschedule as much as possible,

2 though that will be a huge effort, and also, with a view to the rights of

3 the Defence, to prepare any new witnesses, that we reschedule them at the

4 end of the week.

5 JUDGE AGIUS: Yes. I thank you, Mr. Wubben. Are there any

6 remarks from the Defence bench?

7 MS. VIDOVIC: [Interpretation] Your Honours, we have nothing to say

8 in relation to this. This is entirely up to the OTP.

9 JUDGE AGIUS: All right. Yes. I agree with you. It's entirely

10 something that we cannot involve ourselves with, except that -- anyway,

11 least said, better, better it is.

12 What's the position now? How can we -- because this witness was

13 scheduled to testify the entire week between Prosecution and Defence, and

14 -- we have a responsibility, which I'm sure you appreciate, to try -- to

15 try to make the best possible use of the time we have if it is at all

16 possible. I do acknowledge that there are or may be problems because

17 witnesses don't fall from heaven. I mean, you have to arrange for their

18 transportation, proofing, and they also have to arrange for their being

19 away and travelling. So -- and not to mention the problems that the

20 Defence might encounter if they are put in a position where they have to

21 deal with a witness before they were prepared to.

22 So I definitely have in mind, of course subject to my two

23 colleagues agreeing, of utilising one of these mornings to discuss with

24 you the Rule 98 bis procedure that will follow immediately after the

25 Prosecution rests its case. So I welcome any suggestions that you may

1 have in regard as to the date.

2 The other remaining thing is, if it is at all possible, to either

3 bring forward those witnesses that are here in The Hague and that you had

4 scheduled as new witnesses, some at them at least, for later.

5 MR. WUBBEN: Your Honour --

6 JUDGE AGIUS: Yes, Mr. Wubben.

7 MR. WUBBEN: Your Honours, if I may. We have no witnesses

8 available here in The Hague.

9 JUDGE AGIUS: I'm talking of the ones who would have testified

10 about the chain of custody. I thought that they were here in The Hague.

11 MR. WUBBEN: No, Your Honour. That might be a misunderstanding,

12 but they are not.

13 JUDGE AGIUS: I see.

14 MR. WUBBEN: But, Your Honour, may I --

15 JUDGE AGIUS: Not even the military officer witness --

16 MR. WUBBEN: No.

17 JUDGE AGIUS: -- 52?

18 MR. WUBBEN: No, Your Honour.

19 JUDGE AGIUS: I do realise that you have a problem. You have a

20 problem, but the Trial Chamber will try to help you out in trying to find

21 a solution to avoid wasting an entire week -- not wasting but losing.

22 It's not wasted.

23 What practical suggestions or recommendations do you have,

24 Mr. Wubben, and please do understand that you have our understanding all

25 the way.

1 MR. WUBBEN: Well, we have -- we have available now at the

2 beginning of the week the contacting possibilities with these witnesses,

3 although various witnesses have fixed a date or lawyer -- lawyers among

4 them who have a free agenda projected as such based upon our proposal,

5 meaning that they have fixed dates, and others might have even additional

6 information. We have to find out. So by the end of the day or the

7 beginning tomorrow, we are in a far better position to confirm any

8 opportunities.

9 Prior to that, Your Honour, if you allow me, there is -- there is

10 still the issue of the new-coming witness. There is an order of

11 appearance by your Trial Chamber, an order for subpoena which includes

12 that Witness C003 shall appear at the Tribunal on the date which will be

13 specified further, and that the representatives of the Tribunal have to

14 cooperate with that.

15 So according to this order, C003 is still available, and I would

16 advise the Trial Chamber to take a position whether or not the Trial

17 Chamber itself wants to use its position to put questions or to inform

18 him, or the Trial Chamber decide to leave that up to Prosecution to update

19 this witness who is waiting here in the neighbourhood as soon as possible.

20 JUDGE AGIUS: Let's suspend the sitting for a couple of minutes.

21 We'll be back -- you don't need to leave the courtroom -- we'll be back in

22 less than five minutes. The reason is to consult among ourselves,

23 obviously. There's no other reason.

24 --- Break taken at 9.17 a.m.

25 --- On resuming at 9.28 a.m.

1 JUDGE AGIUS: Mr. -- The accused is here. Mr. Wubben, I take it

2 -- I just want to confirm with you. I take it that your decision to

3 withdraw this witness is an irrevocable one.

4 MR. WUBBEN: Yes.

5 JUDGE AGIUS: So you have considered, in reaching this decision,

6 other options.

7 MR. WUBBEN: I have considered --

8 JUDGE AGIUS: Other options.

9 MR. WUBBEN: I have considered them but I have not come to a final

10 opinion.

11 JUDGE AGIUS: You haven't come to a?

12 MR. WUBBEN: Final opinion.

13 JUDGE AGIUS: You have come to a final opinion. This is why I'm

14 asking you whether the decision to withdraw this witness is an irrevocable

15 one or not.

16 MR. WUBBEN: Well, it's definitive, Your Honour.

17 JUDGE AGIUS: Okay. So basically you have considered all the

18 options that you had, including that of proceeding with the testimony of

19 this witness, and if he becomes an adverse or a hostile witness, to

20 proceed along the lines of asking for a declaration to that effect, and

21 you have decided against -- or, rather, you have decided in favour of

22 withdrawing the witness rather than proceeding the other way.

23 MR. WUBBEN: Yes, Your Honour.

24 JUDGE AGIUS: So having cleared that, our decision is also a very

25 simple one. We -- it doesn't even cross our mind for a moment of calling

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1 the witness ourselves, and for that matter, we don't consider the need of

2 a subpoena because a subpoena would fall in place only if there were

3 further proceedings to follow. And I think that the matter ends there.

4 The matter ends there.

5 Now, how are we going to utilise the rest of the time we have this

6 week profitably? And I need suggestions from you first, Mr. Wubben, and

7 then from the Defence if whatever you suggest creates problems for them.

8 MR. WUBBEN: Your Honour, today the Prosecution will try to get

9 the information to reschedule witnesses and to try to get a witness by the

10 last two days of this week, thus filling in at least a couple of days from

11 the luck we have. Prior to a proposal, we will update the Defence with a

12 view to their rights to cross-examine. And we will go through our list,

13 as I informed you already prior this morning. It will not be easy because

14 dates are fixed according to several agendas, but we will give that a try.

15 JUDGE AGIUS: I'm fully aware of that, Mr. Wubben, and as I said,

16 you have our full understanding.

17 One other matter. Witness 45, who is supposedly the one who

18 should have followed the -- the witness we had scheduled for today, it

19 seems to me that this is one of the new witnesses that you intend -- that

20 you have proposed to bring forward, and to my knowledge we have not yet

21 decided on admitting that witness.

22 Ms. Vidovic. So at least we can decide on that witness orally

23 today. If you have no objection on that particular witness. I'm not

24 mentioning the name because I don't know if there are requests for

25 protective measures.

1 MS. VIDOVIC: [Interpretation] Your Honours, we have no objections.

2 JUDGE AGIUS: So our decision is that as regards Witness number

3 45, as name shown in the last confidential amended witness list presented

4 by the Prosecution and dated the 13th of April, 2005, the Trial Chamber is

5 authorising the Prosecution to produce that witness.

6 So at least you have that decision in your hands. It's an oral

7 decision, of course.

8 MR. WUBBEN: And, Your Honour --

9 JUDGE AGIUS: The others we will decide, et cetera. If there is

10 someone else that perhaps you can bring forward and who would be a new

11 witness included in the motion that you filed a few days ago and you need

12 clearance, authorisation from us, then do approach the Registrar after

13 consulting with the Defence straight away so that we give clearance there

14 as well.

15 MR. WUBBEN: Your Honour, if I may. I might be wrong, but as I

16 recall, Defence counsel already put forward as her opinion that there are

17 no objections --

18 JUDGE AGIUS: Yes, that's true. However, there is a pending on

19 one person that -- I don't think -- need, I think, and we have withheld

20 our decision basically because of that pending issue and also because of

21 the other pending issue that there was regarding those three chain of

22 custody witnesses on whether they could testify in writing and then

23 cross-examination would be reserved. And otherwise we would have handed

24 -- the decision basically is already prepared and typed out, it's a

25 question of waiting for an outcome on the pending issues.

1 Yes, Ms. Vidovic.

2 MS. VIDOVIC: [Interpretation] Your Honours, we've been considering

3 the list just now, and we are not prepared to cross-examine Witness number

4 52 this week or next week, for that matter. We are dealing here with a

5 highly complex and serious testimony which requires a longer preparation

6 time in order to be able to cross-examine. Therefore, we would kindly ask

7 the Prosecutor to not consider this witness for the next two days this

8 week or next week.

9 The possibility of this witness appearing, as well as the

10 substance of his testimony, came up only recently, therefore we have not

11 received any of the relevant documents in connection with this witness.

12 JUDGE AGIUS: Yes, Mr. Wubben.

13 Thank you, Madam Vidovic.

14 MR. WUBBEN: Yes, I'm much obliged for this information because

15 that enables us to focus, rather, on other opportunities. So it means,

16 Your Honours, that we might contact today or tomorrow Defence counsel for

17 further scheduling and then finally update you with an advice to

18 reschedule.

19 JUDGE AGIUS: Yes. I thank you, Mr. Wubben. In the meantime,

20 let's schedule a sitting where we will discuss Rule 98, the Rule 98

21 procedure that will be adopted.

22 My suggestion to you, I of course stand -- I stand to be corrected

23 or I would welcome any other alternatives, but I take it that by tomorrow

24 you should more or less be in a position to know if we could utilise the

25 remaining days of the week, at least the last two days or so. So let's

1 try and meet Wednesday morning, deal with the Rule 98 bis. I take it -- I

2 mean, don't expect to have this debate last more than an hour. It's

3 pretty plain sailing, according to us.

4 What I would like you to do is I know that the options that you

5 may have may be quite limited, but -- I honestly don't know what to

6 suggest because two of the witnesses that were scheduled for next week --

7 sorry, for the week 17th to 19th, one of the witnesses is -- was scheduled

8 to last five hours. That's basically three days, if not more. The others

9 were three each. Basically we're talking of two days each. But of course

10 today is already Monday. So it's still a problem. But any day or two

11 that we can gain will always help us a lot.

12 And do keep in mind that the weekend starting on the 13th of May

13 is a long weekend since Monday the 16th is a UN holiday or, anyway, it's

14 holiday for this tribunal. So do keep that in mind. If possible, we

15 won't -- try not to leave anyone here Friday because we won't be sitting

16 on Friday either, Friday, Saturday, Sunday, and Monday, waiting here for

17 nothing.

18 So, please, I trust my hands in your organisational skills and

19 expertise, Mr. Wubben, and I'm sure you will try and come forward with

20 some kind of a solution. I see none for the time being because I don't

21 know what your problems are, obviously, I mean. But I can anticipate

22 problems in trying to airlift someone from Yugoslavia or from somewhere at

23 24 hours notice, except maybe with Nikola Popovic, but then you wouldn't

24 have gained much, you know, because he was scheduled to testify here for

25 one hour. All the other witnesses are three hours, three hours. I don't

1 know what to tell you.

2 MR. WUBBEN: Your Honour, we will do our best.

3 JUDGE AGIUS: All right. I'm sure you will. I'm sure you will.

4 So we will be sitting again, Madam Registrar, please, on Wednesday

5 morning at 9.00 in this same courtroom. I think we should keep it at

6 9.00. We should keep it at 9.00. And then when we finish, we finish. In

7 the meantime, if there are further problems that we need to discuss about

8 rescheduling, obviously we'll discuss them. All right?

9 I thank you, and I do understand that this is a problem which is

10 certainly not self-inflicted. Thank you.

11 --- Whereupon the hearing adjourned at 9.43 a.m.,

12 to be reconvened on Wednesday, the 4th day of

13 May, 2005, at 9.00 a.m.

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