Tribunal Criminal Tribunal for the Former Yugoslavia

Page 7830

1 Wednesday, 4 May 2005

2 [Open session]

3 --- Upon commencing at 9.05 a.m.

4 [The accused entered court]

5 JUDGE AGIUS: Yes. Good morning, Madam Registrar, could you call

6 the case, please.

7 THE REGISTRAR: Good morning, Your Honours. This is Case Number

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

9 JUDGE AGIUS: Thank you.

10 Mr. Oric, can you follow the proceedings in another -- in a

11 language that you can understand?

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

13 and gentlemen. Yes, I can follow the proceedings in my native language.

14 JUDGE AGIUS: I thank you. You may sit down.

15 Appearances for the Prosecution.

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

17 lead counsel for the Prosecution. I am here together with co-counsel,

18 Ms. Patricia Sellers, Mr. Gramsci Di Fazio, and our case manager, Ms.

19 Donnica Henry-Frijlink. And also good morning to the Defence.

20 JUDGE AGIUS: I thank you, Mr. Wubben, and good morning to you

21 and your team.

22 Appearances for Naser Oric.

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

24 morning to my learned friends and colleagues from the OTP. My name is

25 Vasvija Vidovic. Together with Mr. John Jones, I appear on behalf of Mr.

Page 7831

1 Naser Oric. We have with us today our legal assistant, Ms. Adisa Mehic,

2 as well as our case manager, Mr. Geoff Roberts.

3 JUDGE AGIUS: I thank you and good morning to you and your team.

4 The main purpose of today's sitting, as you know, was to

5 exchange -- hear your views or your submissions on the Rule 98 bis

6 procedure that will follow immediately after the Prosecution rests its

7 case. But of course we are also at your disposal should you have any

8 other preliminary matters that you would like to raise or housekeeping

9 matters that you feel are important and need to be addressed today while

10 we have the opportunity. We are not hearing any evidence, in other

11 words.

12 So before we come to the Rule 98 bis matter, are there any other

13 issues that you would like to raise from the Prosecution's side, Mr.

14 Wubben?

15 MR. WUBBEN: Yes, Your Honour. I would like to raise the issue

16 about the scheduling of the witnesses.

17 JUDGE AGIUS: Yes, I would expect so.

18 MR. WUBBEN: And let me refer to the witness list and the numbers

19 involved. We were able to reschedule witness number 45, Your Honour, to

20 be -- to give testimony in court on Friday instead of the Monday. That

21 means that this week this witness will start and the following witness

22 will start, number 46, as that is a fixed date with a view to the agenda

23 of that -- of that witness, on the 11th of May and we project two days

24 for that witness. So instead of the 13th of May, we should be able to

25 finalise we -- I mean the parties by the 12th of May.

Page 7832

1 JUDGE AGIUS: Stop one moment, because I may have -- I want to

2 make sure I have understood -- I have understood you. You plan to have

3 here witness number 45 this Friday?

4 MR. WUBBEN: Yes, Your Honour.

5 JUDGE AGIUS: He will -- you will require him in the witness box

6 until when?

7 MR. WUBBEN: On that day, Your Honour, and finalise on Monday.

8 JUDGE AGIUS: So the original three hours that you had indicated

9 have now become what?

10 MR. WUBBEN: Still three hours, Your Honour.

11 JUDGE AGIUS: How can it be three hours if we are hearing him on

12 Friday? We usually sit for almost four hours, three hours, 45 minutes.

13 MR. WUBBEN: So the other party can start as well.

14 JUDGE AGIUS: I am asking you how much time you require. If you

15 require still three hours then we can plan that he will testify in-chief

16 on Friday and that the Defence will take him on cross on Monday.

17 MR. WUBBEN: That's fine, Your Honour.


19 All right. So is that fine with you?

20 MR. JONES: Yes, Your Honour.

21 JUDGE AGIUS: When I say "fine with you," I mean I need a

22 confirmation that Monday will suffice for the purposes of cross-examining

23 that witness.

24 MR. JONES: Yes, that will be plenty of time.

25 JUDGE AGIUS: All right. Perfect. So this is the first thing

Page 7833

1 that is being decided this morning, Madam Registrar.

2 Mr. -- does he have any protective measures, or not? None that I

3 recall.

4 MR. WUBBEN: Not yet, Your Honour.


6 MR. WUBBEN: That's why I referred to numbers.

7 JUDGE AGIUS: So witness number 45 on the latest confidential

8 amended witness list will testify this Friday, that is the 6th of May,

9 in-chief and on Monday, the 9th of May, on cross. Right.

10 Then I take it - this is why I intervened - that the next witness

11 Mr. -- number 46 will start on Tuesday and not on Wednesday, as

12 previously scheduled.

13 MR. WUBBEN: We tried to do so, Your Honour, but it is scheduled

14 on the 11th and that's a fixed date.

15 JUDGE AGIUS: What do you mean a fixed date?

16 MR. WUBBEN: A fixed date -- it is a date that could not be

17 rescheduled, modified --

18 JUDGE AGIUS: No in other words he cannot --

19 MR. WUBBEN: No.

20 JUDGE AGIUS: What do you mean?

21 MR. WUBBEN: He cannot come earlier.

22 JUDGE AGIUS: When is he coming?

23 MR. WUBBEN: One moment, Your Honour.

24 It's on a Monday, Your Honour.

25 JUDGE AGIUS: Yes. Coming over on Monday. So the -- the problem

Page 7834

1 -- Monday morning? Monday afternoon? Evening? What?

2 MR. WUBBEN: I don't know, Your Honour.

3 [Prosecution counsel confer]

4 MR. WUBBEN: Your Honour, I learned from my co-counsel that he

5 will be flying in Monday evening so he will be proofed on the Tuesday.

6 JUDGE AGIUS: So we can only start on the Wednesday, in other

7 words.

8 MR. WUBBEN: Yes.

9 JUDGE AGIUS: And Wednesday is the 11th. And do you require how

10 many hours for that witness?

11 MR. WUBBEN: One day, Your Honour, one session.

12 JUDGE AGIUS: And who will be taking that witness?

13 MS. VIDOVIC: [Interpretation] Your Honours, I, too, will be

14 requiring about one day or at the very least two and a half to three

15 hours.

16 JUDGE AGIUS: Right. Okay. So the second decision being taken

17 this morning is as follows. I thank you both first of all for your

18 cooperation and putting the Trial Chamber in a position to determine

19 these matters beforehand so that we can manage the case in the best way

20 possible.

21 So witness number 46 will start his testimony on Wednesday, the

22 11th of May. And then on that day, the Prosecution is expected to

23 terminate his -- to conclude his examination-in-chief. The following

24 day, 12th, will be available for cross-examination, with the

25 understanding that the cross-examination has to be finished, concluded,

Page 7835

1 by that -- by the end of business -- by the end of the sitting on that

2 day. Okay.

3 So then there is no question of restarting on the 17th because

4 the 16th is a public holiday, or a UN holiday. And provided you am -- I

5 take it that you still intend to bring forward witness number 47.

6 MR. WUBBEN: Yes, Your Honour.

7 JUDGE AGIUS: All right. So that should not create any problems

8 for the Defence. What I would like you to do between now and this Friday

9 when we meet again is to make a re-assessment of the would-be testimony

10 of this witness to establish whether you require that person to testify

11 in-chief for five hours. Because if you can finish that testimony -

12 whoever is leading that witness, because I wouldn't know - please make a

13 re-assessment. If you still require five hours, then it will be five

14 hours. If we can bring that down to one day or even to, say, to four

15 hours instead of -- or four hours roughly, then maybe on the basis of how

16 cross-examination has been ongoing, we would require less time for

17 cross-examination and we can finish him earlier than scheduled. Instead

18 of taking five days or four days, we will have him for three days or

19 something like that.

20 MR. WUBBEN: Your Honour, we are already working on that.

21 JUDGE AGIUS: Okay. I thank you. So for the time being I think

22 that matters of the revised witness list as far as the next -- next two

23 weeks are concerned we -- are finally set. We -- yes, do you have any

24 further submissions?

25 MR. WUBBEN: Yes, Your Honour. I have some additional

Page 7836

1 submissions regarding several witnesses on the list to update Your

2 Honours of --


4 MR. WUBBEN: -- of our plans. As we contacted the Defence

5 regarding the three chain of custody witnesses, may I label them as such,

6 of course meaning numbers 50, 52, and 53. There had been contacts and

7 change of positions and we have now --

8 JUDGE AGIUS: One moment. I'm sorry to interrupt you again, but

9 I want to make sure that in my list at least, chain of custody, I have

10 49, 50, and 51. Those are the numbers that I have.

11 MR. WUBBEN: Yes. I refer to the list, Your Honour, of the 25th

12 of April.

13 JUDGE AGIUS: All right. Okay, okay.

14 MR. WUBBEN: Okay.

15 JUDGE AGIUS: Okay. All right. Okay. I was looking at another

16 list. Okay. So, yes, what's the position about these three witnesses?

17 MR. WUBBEN: About these three witnesses I requested co-counsel,

18 Mr. Gramsci Di Fazio, to address the Court. But first I want to address

19 the Court with a view to number 49. And number 49, that is also a chain

20 of custody witness, but solely in connection to a military log. And we

21 considered our position in that respect, as this is a witness allowed by

22 the Court especially with a view to the fact that this witness already

23 testified and now it comes to the final position of the Prosecution in so

24 far that with a view to expedite the testimonies and thus the trial, we

25 considered to -- to propose, to request, to the Court. And it is a

Page 7837

1 matter of consideration and planning to put instead of this witness our

2 investigator, who is able to confirm via an affidavit or in person. We

3 will request that and specify that to the Court, the fact that this

4 military log has been handed over to him and this can be tendered as

5 such. This military log is then -- and the handing over by that witness

6 is the only aspect in addition to what he testified in early statement.

7 The witness also made reference to a videotape that couldn't find

8 it, so that's -- military log will be the nucleus of tendering into

9 evidence. When it comes to the credibility of the witness in -- it is

10 already sufficiently challenged by the Defence on cross-examination, and

11 then I mean the witness number 49, and should the Defence seek to call

12 this witness or have any concerns about it on matters regarding his

13 credibility, then it should be something that they would -- must raise

14 under additional new evidence to submit to the court. And of course this

15 new information must be relevant and probative.

16 JUDGE AGIUS: Prosecution -- Defence has no burden of proving

17 anything in the context of what you've been saying, Mr. Wubben.

18 MR. WUBBEN: This means, Your Honour, that --

19 JUDGE AGIUS: You have the burden of proving that the testimony

20 of this witness is a credible one; it's not the other way around.

21 MR. WUBBEN: Yes, Your Honour. I anticipate that there are -- in

22 the meanwhile this morning I received a letter, letter dated the 2nd of

23 May, that addressed that issue. And I already initiate to --

24 JUDGE AGIUS: A letter from who?

25 MR. WUBBEN: A letter from the Defence.

Page 7838


2 MR. WUBBEN: That's why I anticipate in that respect.

3 JUDGE AGIUS: All right.

4 MR. WUBBEN: Anyhow, we could not have a final position today,

5 Your Honour, because the investigator concerned is, due to family

6 circumstances, a death in the family, has left for abroad and he will

7 return at the coming weekend. So after the coming weekend, we are able

8 to submit a request in that respect, and I will get back to the Court and

9 update the court for --


11 Madam Vidovic or Mr. Jones, would you like to address the Trial

12 Chamber on this last item that has been brought up or raised by Mr.

13 Wubben?

14 MR. JONES: Yes. Thank you, Your Honour. I think for the most

15 part we'll wait for the request by the Prosecution and respond to it.

16 What Mr. Wubben has alluded to is that with the fact of the witness that

17 is projected we had credibility issues which arose from discovery of

18 additional evidence which we wish to put to him. So we -- all I can say

19 now is we would be concerned if that challenge would be circumvented if

20 that investigator would be allowed to give evidence on behalf of that

21 witness. But as I say, until we receive the request, it's difficult to

22 say precisely what our response would be, but I anticipate we would

23 object to that response, meaning that the credibility issues we would

24 wish to raise would not be open to us anymore.

25 JUDGE AGIUS: Please, Registrar and parties and my legal

Page 7839

1 officer/s [sic], I have an impression - I may be completely wrong, but I

2 do have an impression that while that witness was giving evidence here

3 months ago and he was being asked about the original or the copy that he

4 had, and it was given to understand that he will be making it available

5 and that we did make some kind of reservation, particularly for the

6 Defence, to put questions on the -- on that document and on how --

7 anyway, on that document when he would be called back to round up his

8 testimony. It's an impression that I have that we kept a window open for

9 further questions once he had brought the original forward or made it

10 available so that we could confront it with the copy that we had, but I

11 may be wrong. Please do check. We will be checking, too, but I have

12 that impression that we left that window open; in which case, in which

13 case, the situation will change a little bit and it will change obviously

14 in the direction of the Defence.

15 The other thing I want to mention, and I want to make ourselves

16 clear on this, is that as I said the burden of proving that a witness is

17 a credible one and that the substance of his testimony is one which is

18 trustworthy and can be relied upon and has probative value, in other

19 words, rests with the Prosecution and not with you because we're talking

20 of a Prosecution witness. Obviously, we do appreciate, for sure, that

21 you may have questions that you would like to ask the witness which are

22 -- which will address the question of credibility.

23 Now, if this is as a -- if this is -- if this was sort of

24 something that was reserved for already, that's one thing; if it's just

25 an afterthought and now you want to -- you prefer to put these questions

Page 7840

1 to a witness that the Prosecution for a short period of time showed

2 interest in bringing again, I don't think we are in a position to tell or

3 to impose on the Prosecution to bring that witness forward again. I

4 mean, the Prosecution can always decide to drop -- to renounce having

5 that witness come forward and testify viva voce at firsthand testimony on

6 the military log and we certainly cannot stop the Prosecutor there. And

7 we certainly cannot stop the Prosecutor in trying to get an investigator

8 instead; it's their business, not ours. We will certainly not involve

9 ourselves in that.

10 Yes, Mr. Jones.

11 MR. JONES: Yes, just in outline it's essentially similar, if not

12 identical, situation to the one which we had before with Mr. Slavisa Eric

13 which after the testimony testified we received material, video material

14 which we say reflects -- will reflect on the truthfulness of the

15 witness's answers when he testified here. And so to that extent it's not

16 an afterthought, it's something which if we had had the material at the

17 time we would have confronted the witness with it. So it may be that --

18 of course it is up to the Prosecution whom they call, but if they don't

19 call that witness, we would be put in the situation that we had with the

20 other witness, Mr. Eric, that we would apply for him to be recalled. So

21 in terms of whether this is going to be a more expedient approach, it may

22 not be if in the end we end up having to apply to have the witness

23 brought here in any event.

24 JUDGE AGIUS: On that, if you decide to follow that direction,

25 that procedure, you would have to apply with -- for an ad hoc motion for

Page 7841

1 permission to do that.

2 MR. JONES: Yes, so we reserve the possibility that we might now

3 have to do that.


5 So I think that now clears this matter, but please do check

6 because I do have this recollection - I may be wrong - but I do have this

7 recollection that since we had agreed that witness will return here with

8 the military log and be -- plus the video that he had seen and which he

9 had given information about, I think we had left a window open for

10 further questions from both parties.

11 [Trial Chamber and legal officer confer]

12 JUDGE AGIUS: We'll check anyway. This is being checked by us as

13 well, so we will re-assess the situation and we will talk about this

14 again. Once you have made up your mind whether you will be resorting

15 only to the evidence of the investigator or whether you would rely on

16 bringing forward the witness himself, having heard now from Mr. Jones

17 that they have fresh material that they have dug up, on the basis of

18 which they would ask for that witness to be recalled in any case. So I

19 am sure that you are both experienced and mature enough to deal with this

20 situation as it arises in the -- in your best interests, obviously,

21 because that is -- goes without saying, I think, but also in the most

22 practical manner possible. All right.

23 Yes, so that deals with that particular witness.

24 MR. WUBBEN: Yeah, meaning that the other three left, and I will

25 give the floor to --

Page 7842

1 JUDGE AGIUS: Yes, Mr. Di Fazio.

2 MR. DI FAZIO: Thank you. If Your Honours please, the

3 Prosecution recently applied to you to add a certain number of witnesses,

4 included witness number 53. And you recently granted our motion

5 permitting him to be added to our witness list. So what I'm about to say

6 -- I should extend some apologies to the Trial Chamber because we are

7 going to announce that we don't intend to call him in the interests of

8 economy, but we did of course recently ask you to consider adding him.

9 The reason for that is that we are interested of course in judicial

10 economy, in trying to cut the list down as much as we can. Furthermore,

11 the investigator who took the statement from those three chain of custody

12 witnesses has been unavailable for the past two weeks, being on leave in

13 another county, and he only returned yesterday. I had a chance to speak

14 to him yesterday. I spoke to him extensively about the witness and we

15 have been thereby placed in a better position to make a more accurate

16 assessment of our needs and what we intend to do. So we considered the

17 matter and we decided that we do not wish to call that particular

18 witness. So he will be removed from the witness list; the Prosecution

19 won't produce him. That's witness number 53. That then leaves number 52

20 and number 50.

21 I understand that - just for your information - they are military

22 intelligence people.

23 JUDGE AGIUS: Yeah, yeah, yeah, no, I just wanted to make sure.

24 MR. DI FAZIO: So I understand also that there have been

25 discussions in the Chamber regarding the use of the Rules to shorten

Page 7843

1 their testimony. The Prosecution does not wish to adopt the provisions

2 of Rule 92 bis in respect of either of those witnesses. It's simply too

3 complicated to adopt all those procedures. That leaves Rule 98 (F).

4 However, having spoken to the investigator yesterday, it's clear to me

5 that these witnesses may produce more upon proofing and the Prosecution

6 wouldn't want to tie its hands by simply producing their written

7 statements, as you would expect under Rule 98 (F). The evidence has got

8 to come in some way, that's either oral or in written form. That leaves

9 us with the current statements as they stand. We don't want to tie our

10 hands.

11 JUDGE AGIUS: Let me interrupt for a moment. I mean, dependently

12 of Rule 92 bis. If you opt for the Rule 89 (F) procedure, they would

13 still be required to come here to confirm the statement or not in any

14 case.

15 MR. DI FAZIO: Exactly, exactly.

16 JUDGE AGIUS: So it's not your wish to resort to either of the

17 two procedures, either under 92 or under 89. Obviously we will -- we can

18 impose, to be honest with you, following some of the decisions taken by

19 the Appeals Chamber, we can actually impose it but we will not. I mean,

20 it's -- especially since you're dropping one.

21 MR. DI FAZIO: There's good reason for calling them and we -- I

22 know you're anxious about the matter.

23 JUDGE AGIUS: At this stage of the proceedings, we will not

24 interfere.

25 MR. DI FAZIO: Furthermore, the Prosecution would be happy, if

Page 7844

1 Defence agree, to try and adopt a combination of written and oral

2 evidence which may --

3 JUDGE AGIUS: That's up to you --

4 MR. DI FAZIO: -- shave a few hours of the testimony. We can

5 confer with the Defence beforehand if you wish, and see if we can mold an

6 examination-in-chief that consists of both written and oral evidence.

7 There's nothing in the Rules that stops that.

8 JUDGE AGIUS: There's nothing in the Rules that stops that, but

9 we would not intervene in imposing either of these two procedures unless

10 we have of course an indication that you are willing -- both willing to

11 accept, not at this stage of the proceedings. We would have provided for

12 that at the early stages and even at pre-trial -- during the pre-trial

13 proceedings, but not at this stage. So if there is no agreement, they

14 will come forward and testify viva voce here.

15 What we are interested in establishing in the shortest time

16 possible, is the following: that you had indicated a three-hour time

17 frame for each of these original three witnesses, which to we always

18 seemed to be far in excess of what you would really have needed to prove

19 or deal with the matter of chain of custody.

20 MR. DI FAZIO: I think we can cut that down.

21 JUDGE AGIUS: This is what I'm asking you to do, to do the same

22 exercise I have asked Mr. Wubben to do with regard to witness number 47

23 and see how much time we can cut down. I -- honestly we -- I discussed

24 that with my legal secretary already, and of course it's something that

25 we need to discuss amongst ourselves. But if -- we have arrived now at a

Page 7845

1 stage now where we need to plan in a little bit more detail than we

2 usually do. So in other words, if we can again save another day there,

3 we will try to do it.

4 MR. DI FAZIO: Yes.

5 JUDGE AGIUS: But I do appreciate that you have already renounced

6 once of the witnesses.

7 MR. DI FAZIO: I think if we -- I've read the statements and

8 they're pretty ponderous sort of statements, and if we cut to the chase,

9 as they say, we can really probably slash 40 to 50 per cent of the time.

10 JUDGE AGIUS: I don't know, I haven't read the statements.

11 MR. DI FAZIO: I think it's possible from the Prosecution's point

12 of view in any event, we would finish their testimony in half a session.

13 JUDGE AGIUS: All right.

14 MR. DI FAZIO: And then finish the cross-examination.

15 JUDGE AGIUS: In the meantime, we will of course reserve our

16 position on this until later. But if in the meantime there is a chance

17 of having the -- again, the Prosecution and the Defence sit around the

18 table and come to an agreement on what procedure to follow with regard to

19 these remaining two witnesses, then of course we will accommodate you

20 accordingly.

21 Defence need not say anything for the time being. We'll play it

22 by the ear. You do your homework to see how much you can cut down

23 timewise. If you plan or you think you can cut down the testimony --

24 viva voce testimony in-chief to a couple of hours, both of them included,

25 then it might not even -- might not be worth pursuing the other course of

Page 7846

1 saying let's have it part in writing let's have it --

2 MR. DI FAZIO: That's what I meant. It's an economy --

3 JUDGE AGIUS: But sit down together and come back to us on this.

4 MR. DI FAZIO: I understand what Your Honour means and we'll make

5 sure that that happens.

6 JUDGE AGIUS: And the understanding is if you come to an

7 agreement to adopt the Rule 89, please do remember that their presence

8 will still be required here.

9 MR. DI FAZIO: Of course.

10 JUDGE AGIUS: And if -- not only -- not just for purposes of

11 cross-examination, I mean also for the purpose of confirming. If you

12 adopt the Rule 92 bis procedure, then the whole procedure has to be

13 adhered to.

14 MR. DI FAZIO: Yes.

15 JUDGE AGIUS: So in other words I don't want that to have any

16 shortcuts or informal 92. It has to be a formal 92 --

17 MR. DI FAZIO: That's what troubles me about that Rule.

18 JUDGE AGIUS: But it's up to you. That might be the agreement

19 that, for example, the Defence would be interested in adhering to. So

20 leave options open and then come back to us with whatever you agree upon.

21 If you don't agree on that, you would be expected to summon these two

22 witnesses, make them available here, to testify viva voce, and it would

23 be appreciated if you could cut down on the six hours that you are

24 scheduling for both witnesses for in-chief.

25 MR. DI FAZIO: Yes, Your Honour.

Page 7847

1 MR. JONES: Your Honours, just for clarification because we were

2 also working for the old list that I understood the Prosecution to be

3 dropping witness --

4 JUDGE AGIUS: Sakota.

5 MR. JONES: Not witness 52 on the old list?

6 JUDGE AGIUS: No, no, no, Witness Sakota.

7 MR. JONES: So, in other words, the military officer witness

8 remains.

9 JUDGE AGIUS: I haven't heard anything to the contrary.

10 MR. JONES: And two chain of custody witnesses which were 49 and

11 50 on the old list. Thank you.

12 JUDGE AGIUS: Did I mention the right name?

13 MR. DI FAZIO: Yes.

14 JUDGE AGIUS: All right. Thanks. So that deals with -- have we

15 concluded the entire now submissions -- or the submissions on the

16 confidential amended list?

17 [Trial Chamber and legal officer confer]

18 JUDGE AGIUS: So anything else before we embark on your journey

19 to the Rule 98 bis?

20 MR. WUBBEN: No, Your Honour.

21 JUDGE AGIUS: Right.

22 Let me make sure that I have not forgotten anything myself. Let

23 me go through -- no, I think we can move now to the Rule 98 bis matter.

24 Let me introduce the subject. But before I do so, let me on

25 behalf of the Trial Chamber thank both parties for asking for an open

Page 7848

1 debate on this matter in time, before we come to the Rule 98 bis stage,

2 in time to give an opportunity to everyone to air their views, and also

3 to ensure that neither of the parties particularly are taken -- was taken

4 by surprise. I believe wholeheartedly that no Trial Chamber should ever

5 surprise the party with anything that hasn't -- they have not -- the

6 parties with anything that they have not been given the opportunity to

7 make submissions upon. So I thank you for allowing the Trial Chamber to

8 discuss in an open manner, fashion, with you this problem or this issue.

9 And I appreciate also the fact that I'm sure you've come here

10 well-prepared to contribute in a constructive manner, thus helping the

11 Trial Chamber come to the right decisions.

12 You recall that Rule 98 bis was amended as a result of a decision

13 taken by plenary. It was amended on the 8th of November. And the reason

14 for the amendment I think emerges from the amendment itself. Reason was

15 that our predecessors in introducing the Rule 98 bis procedure had meant

16 to introduce a procedure within the trial that would make it possible for

17 the trial to finish earlier if the right circumstances are obtained; but

18 also because there was, and there still is, a very important principle

19 pertaining to the right of the accused to remain silent involved.

20 Basically, the whole idea behind -- the ratio behind the creation or the

21 insertion of our rules of Rule 98 bis in its original form was the

22 following: that the accused has a right to remain silent, and if the

23 Prosecution has in regards -- relation to any particular count not

24 brought forward evidence which is sufficient to sustain a conviction

25 later on, then the accused should not be put in a position wherein he has

Page 7849

1 to defend himself in any way.

2 Unfortunately, and I say this with all responsibility, as the

3 work of this Tribunal gathered momentum and as more cases were put on

4 trial or came to trial, it was realised that Rule 98, instead of serving

5 the purpose for which it was intended in the first place, was serving

6 very little in regards of the substance of the indictment itself. Much

7 time and much efforts were being lost in not only elaborating voluminous,

8 lengthy motions, lengthy responses, and lengthy decisions, but also much

9 time was being lost - I'm not saying wasted, please understand me or

10 don't misunderstand me - in studying and evaluating single incidents and

11 particular events on which various witnesses would have given testimony,

12 evidence, mistaking what the substance of a Rule 98 bis motion really

13 should be.

14 The result was that from the moment the Prosecution rested its

15 case to the time when the Trial Chamber would come to its decision, most

16 of the time we would have a lapse of time of something like three months,

17 most of the time even more than that, to be followed by the following

18 consideration: that as we went along we realised that perhaps it would

19 be much more practical to first hand down an oral decision disposing of

20 the Rule 98 bis motion, to be followed then by a written decision

21 elaborating the reasoning behind the oral decision.

22 That is the practice, for example, that my Trial Chamber in the

23 Brdjanin case adopted, that is the practice that few other Trial Chambers

24 adopted in other cases, too. Had we not adopted that procedure, in a

25 complicated case like the Brdjanin case, for example, waiting for the

Page 7850

1 written Rule 98 bis decision would have entailed the Trial Chamber

2 waiting for another three weeks, maybe, or four weeks.

3 The Judges of this Tribunal are fully aware of the time that was

4 being dedicated to the resolution of Rule 98 bis issues, the resources of

5 this Tribunal, which as we go along become less and not more. The fact

6 that the longer it takes to bring a case to an end, the longer someone

7 else will be waiting for his trial to come up, in the meantime, most of

8 the time in a state of detention. And last but not least, the fact that

9 we had already committed ourselves to an exit -- completion strategy made

10 us think twice about the following: whether to retain Rule 98 bis, as it

11 was, until the 8th of December; whether to abolish it outright; and

12 lastly, whether to amend it with a view to on one hand respect and secure

13 the due-process rights of the accused, which -- to which I referred to

14 earlier, namely right to remain silent -- right to remain silent,

15 vis-a-vis put in juxtaposition to what the Prosecution would have been

16 able to bring by way of evidence. So that's on the one side. On the

17 other side, the interests and the responsibility of this Tribunal to

18 ensure that this legal instrument of procedure that we had created way

19 back in the late 1990s no longer served to length -- to prolong the

20 duration of the case, but if anything served to -- its practical purpose

21 for which it was meant and created in the first place.

22 So we opted for this last -- third alternative. And as you

23 noticed, there are some differences between the previous Rule 98 bis and

24 the current Rule 98 bis provision. For the benefit of anyone who is

25 following these proceedings and is not familiar with the legal and

Page 7851

1 technical problems involved, I will very briefly say the following. I

2 will read first and foremost what Rule 98 bis provided before it was

3 amended in December. In its paragraph A, that Rule provided that:

4 "An accused may file a motion for the entry of judgement of

5 acquittal on one or more offences charged in the indictment within seven

6 days after the close of the Prosecution's case and in any event prior to

7 the presentation of evidence by the Defence pursuant to Rule 85(A)(ii)."

8 You will immediately notice, having heard me read out this first

9 paragraph from the previous Rule 98 bis -- now, this was essentially

10 party-driven. The whole process of the Rule 98 bis procedure was part --

11 triggered by the party. It would be the accused who had the right to ask

12 the Trial Chamber to consider a motion for acquittal.

13 You will also agree with me, for sure, that this seven-day time

14 limit was many a time extended not to another seven days but sometimes to

15 weeks, months. I recall instances where it was extended to even a month

16 and a half, almost two months. And in some complicated cases, given what

17 -- what it entailed, particularly the fact that it had to be a written

18 one, I am not -- I am not that much surprised.

19 The second paragraph of the previous Rule 98 bis provided that:

20 "The Trial Chamber shall order the entry of judgement of acquittal on

21 motion of an accused or proprio motu if it finds that the evidence is

22 insufficient to sustain a conviction on that or those charges."

23 So from the party-driven stage, we now move to the discretion or

24 the -- the role of the Trial Chamber to dispose of the matter. And you

25 will notice also that already there was the possibility -- the window

Page 7852

1 open for the Trial Chamber to dispose of questions of acquittal after the

2 end of the Prosecution case also proprio motu, in other words short of an

3 ad hoc motion by the Defence there was still the right - I'm not saying

4 that there was the responsibility. Please do not read me out -- in that

5 direction - there may have been, but there was the possibility for the

6 Trial Chamber to decide that there was -- I will use a phrase that I use

7 in my own county, no case to answer in relation to one or more counts.

8 If that was the case, it would have entailed giving the opportunity to

9 the parties to be heard on that, obviously, because as I said in the

10 earlier on -- Trial Chamber would never have thought of giving a surprise

11 to the Prosecution in any case. So that would have been open for debate

12 and the Prosecution would have consulted. But the -- in other words, if

13 in the case the Defence had opted not to trigger the Rule 98 bis motion,

14 there was always the right of the Trial Chamber to dispose of same issues

15 proprio motu.

16 Problems, as you are well aware, arose as to what was the

17 standard to be used when the Trial Chamber came to its decision, either

18 on a motion of acquittal or on -- or on proprio motu initiative.

19 Undoubtedly there have been some different opinions expressed in

20 decisions forthcoming from different Chambers, especially in the early

21 parts when this -- earlier stages when this -- the then-existing Rule 98

22 bis was being applied. I will not dwell on the reasons for that. The

23 position seems to me to have been resolved by the Appeals Chamber,

24 particularly in the Blaskic case - but not only in the Blaskic case,

25 there were several other decisions that followed suit - that spelled out

Page 7853

1 in no unclear terms the standard that ought to be adopted in the Rule 98

2 bis exercise, and it is the standard that is adopted in all the

3 common-law systems, jurisdictions that I am -- I am familiar with. And

4 this, again, I don't think we need to go into. The standard has been set

5 and it is not going to change. And I will be explaining to you that the

6 change in the wording in the new Rule 98 bis does not mean that the

7 standard has been changed; it only means that the road which should be

8 taken should involve the parties and the Trial Chamber in much less work

9 than it used to into December. And I will explain to this later on.

10 The Rule was changed, as you know, in December, and both existing

11 -- it was a new rule that has come into place. And basically what it

12 says now in its first paragraph is that the close -- "at the close" -- in

13 its paragraph, "At the close of the Prosecutor's case, the Trial Chamber

14 shall by oral decision and after hearing the oral submissions of the

15 parties enter a judgement of acquittal on any count if there is no

16 evidence capable of supporting a conviction."

17 You will notice that the whole procedure is no longer really

18 party-driven. And you will also notice that the new Rule 98 bis motion

19 does not say that at the close of the Prosecutor's case the Trial Chamber

20 "may," but it says "shall." So the first message, or the first

21 conclusion to be drawn on the face of it from this new Rule 98 bis --

22 Rule 98 bis is that it has become mandatory now for the Trial Chamber to

23 embark on this Rule 98 bis acquittal exercise at the end of the

24 Prosecutor's case and need not wait for the Defence to file or to make

25 any application for the acquittal of the client. So that is point number

Page 7854

1 one, and I would like you to understand it from the very beginning.

2 Next thing, it says "by oral decision." So you will immediately

3 notice that what previously was essentially a written decision has now

4 become an oral decision. Let me explain something which -- the only

5 thing that I think is relevant in this context. The fact that we are now

6 saying by oral decision does not in any way diminish or do away with the

7 duty of the Trial Chamber to make sure that its oral decision is a

8 reasoned one. Prior to the amendment in December 1998 there would have

9 been a written decision, even in most cases it was preceded by an oral

10 decision. In both the oral decision and -- but particularly in the

11 written decision, the decision to acquit or not to acquit was always

12 motivated and the reason is not only because giving reasoned decision is

13 a matter of natural justice, it's a modern development in the area or in

14 the concept of natural -- principles of natural justice, for those who

15 believe in natural justice; for those who do not believe in natural

16 justice, it still remains a principle of justice. I'm saying that

17 because I know that in some areas it's almost an anathema to mention the

18 word "natural justice." So -- but I'm used to it and I mention it. So

19 that's number one.

20 And secondly because there has never been any doubt at all that,

21 although very rarely resorted to, there's still a right of appeal from

22 decisions taken on the Rule 98 bis -- on a Rule 98 bis motion. And I

23 said there have been very few instances, but there have been. What Trial

24 Chambers have done is that most of the time they have ensured - and that

25 includes also the trial - the Appeals Chamber, they have ensured first

Page 7855

1 that the appeals were dealt with and determined with the utmost celerity;

2 and secondly, the case, the trial will not stop pending the determination

3 of the appeal.

4 For these same reasons, I need hardly, therefore, repeat to you

5 that our oral decision will of course be a reasoned one, be a reasoned

6 one. So do not expect any surprises on the -- in that context. And of

7 course -- and after hearing the oral submissions of the parties,

8 basically this means that you will both be given the opportunity to be

9 heard, to make submissions, if you want to make submissions. No one will

10 be forced to make submissions. And after that, we are then expected by

11 the new Rule 98 bis to enter a judgement of acquittal on any count if

12 there is no evidence capable of supporting a conviction. Previously, you

13 would have noticed that the wording was -- "if it finds that the evidence

14 is insufficient to sustain a conviction on that or those charges." And

15 now you have the use of the word "count" and not "offences charged," as

16 you had previously in Rule 98 bis. You have a specific reference to the

17 count itself, which in common-law tradition is the matter that is a

18 matter that counts, it's the count itself. And instead of saying "the

19 evidence is insufficient to sustain a conviction on that or those

20 charges." We are saying if there is no evidence capable of supporting a

21 conviction, and what you don't many read is "under that count."

22 So is there a difference between "if the evidence is insufficient

23 to sustain a conviction" or "if there is no evidence capable of

24 supporting a conviction"? It is my submission to you, that there is

25 absolutely no difference at all in the approach. The only difference in

Page 7856

1 what there is -- is what I'm going to try to explain. We tried, in

2 formulating the simple, straightforward words of the new Rule 98 bis, we

3 tried to do our best to level out once and for all the different sort of

4 kinds of approach and methodology that was being adopted in the course of

5 the Rule 98 bis motion, mostly due to the different jurisdictions from

6 which each one of us comes and mostly due to not having, probably for

7 some of us, worked or experienced with Rule 98 bis procedure. We tried

8 to level out the various differences and also to level out the various

9 approaches to bring them in line with what had, by December, the end of

10 last year, become the standard pronunciation of the standard that was

11 applicable on rule after rule of repeated decisions by the Appeals

12 Chamber.

13 Basically, if in relation to a particular count the Prosecution

14 has brought forward evidence that in terms of the previous Rule 98 bis

15 would be described as being insufficient to sustain a conviction, forget

16 the words on that or those charges because those -- this is where the

17 problems arose most of the time. If the Prosecution did not -- provided

18 evidence which was insufficient to sustain a conviction, basically the

19 conclusion that the Trial Chamber would come to is that there is no

20 evidence that has been brought forward by the Prosecution that is capable

21 of supporting a conviction under that count. So you have noticed that in

22 the same sentence I have used the previous expression and the new

23 expression. "Bringing forward evidence which is insufficient to sustain

24 a conviction" is tantamount to not having brought evidence capable of

25 supporting a conviction. So don't expect the Trial Chamber to give to

Page 7857

1 the two versions, the old and the new, a different interpretation. I

2 hope I have made myself clear on this. I'm trying to use as simple a

3 language as possible so as to avoid confusion, knowing also that in

4 whichever direction I look I know that there are mixed jurisdictions and

5 mixed legal experiences and practices.

6 We have changed also the wording, the phraseology. We no longer

7 say what we had in paragraph (A) in the previous version. We don't talk

8 of acquittal on one or more offences charged in the indictment, which

9 could have been understood to mean that each -- that each count was to be

10 divided into various offences or that the events charged in a particular

11 counts could be equiparated with offences rather than events and are

12 underlying facts. And we have tried also to avoid what was contained in

13 the second paragraph of that previous Rule 98 bis, the last words "on

14 that or on those charges." Because in reality, if you look across the

15 Rules we see that, as often happens in most common-law jurisdictions, the

16 word "charge" and "count" are used interchangeably. In my county, for

17 example, technically speaking a person is charged until he comes to

18 trial; he comes to trial as an accused. So at that point in time, he is

19 no longer charged, he is accused. We make that distinction. But in most

20 common-law jurisdictions, basically when you speak of a count, you are

21 speaking of a charge; when you speak of a charge, for the purposes of

22 trial proceedings, you are speaking of a count. In order to try and

23 streamline as much as possible the phraseology used throughout the Rules,

24 we have opted for "count" rather than "offences charged" or "charges,"

25 with the understanding that everyone will try to understand that behind

Page 7858

1 the purpose of Rule 98 bis, there is not - and please, I repeat it again,

2 there is not a humungous exercise to be undertaking to deal with the

3 minutiae of the events mentioned during the testimony and trying to

4 establish whether a particular event has been proven or not proven or

5 whether we should concentrate on issues of credibility or issues of

6 authenticity, et cetera. Please, I'm making it very clear: There will

7 be no submissions made or received on issues of authenticity and

8 credibility at this stage; those will be reserved until later, if the

9 case proceeds. There will equally not be much entertainment of

10 submissions, which rather than concentrating on whether the evidence is

11 submitted -- brought forward is sufficient to sustain a conviction under

12 a particular count would deal with the minutiae of certain particular

13 events.

14 The direction that we would like to lead you to is the following:

15 We have a case, a trial, with an articulated indictment, consisting of

16 six counts, six precise counts. What we will decide ultimately, after

17 hearing your submissions, is, for example, if under Count 1 the

18 Prosecution had adduced evidence capable of sustaining a conviction under

19 that count or not, and simply that. We will of course be prepared to

20 hear evidence if there is a submission that, for example, in regard to a

21 particular person mentioned in the indictment that's supposed to have

22 been the victim of cruel treatment or the victim of murder, it's the

23 submission of the Defence that there was absolutely no evidence at all

24 adduced by the Prosecution or that the evidence adduced is -- can never

25 sustain a conviction. Then I think - and we have discussed this amongst

Page 7859

1 ourselves - we will entertain submissions, short submissions, on that

2 score because ultimately it will be in the benefit of the economy of

3 justice that the Defence is put on notice that as far as regards the

4 alleged murder of, for example, Rado Pejic -- let me not mention names,

5 as regards the alleged murder of -- there's absolutely no way that the

6 Trial Chamber can ultimately come to a conviction so that they don't have

7 to lose or waste time in trying to bring forward evidence in that regard,

8 even though they have no burden of proof, but particularly because they

9 have a right to remain silent. So that right ought to be -- ought to be

10 respected.

11 Submissions relating to details, I think we can -- you can spare

12 us those. We don't need detailed submissions. Please concentrate on

13 where you believe that the Prosecution has not proved -- brought evidence

14 within the standard mentioned and set forth by the Appeals Chamber.

15 We would expect the Prosecution to stand up and say, We believe

16 that we do not have a leg to stand upon. We believe that we have not

17 adduced sufficient evidence according to the standard, to sustain a

18 conviction under Count 1, Count 2, Count 3, or Count 4, if you believe

19 so. I know that has been done in the past. I know that I am dealing

20 with an office that is highly responsible and has not hesitated in

21 pointing out to the Trial Chamber these shortcomings or weaknesses in the

22 Prosecution's case. After all, I believe that apart from the role that

23 the Prosecution has of prosecuting, you have also got the role of being

24 and ensuring to be the best friend of the accused in such like

25 proceedings in the high tradition of trial procedure that we are all used

Page 7860

1 to. So we would expect you to address the Trial Chamber immediately,

2 even before we give the floor to the Defence, when we come to that stage,

3 should you believe there are such weaknesses in your case.

4 We do not wish to hear any submissions by you, in particular

5 trying to explain why you believe that you have proved your case within

6 the Rule 98 bis standard in each and every area. If an area is contested

7 to you by the Defence, then do so by all means, you will respond and try

8 to contest and make submissions, your own submissions, on that. If there

9 is one count, for example, in particular which -- or parts of a count

10 that the Defence does not really make submissions upon, if it goes

11 through that exercise, which it might not do after all, then please don't

12 waste our time; we will do that exercise at the end of the day because we

13 are tasked with a responsibility. But otherwise, we don't need to hear

14 unnecessary -- unnecessary submissions on what is not being contested.

15 Then there is one final matter before I come to -- there are, for

16 example, as in Counts 5 and 6, instances where the accused is being

17 charged under 7(1) as a mode of responsibility, and there are instances

18 where he is being charged under 7(3) as a mode of responsibility.

19 Submissions on the alleged modes -- mode of responsibility will of course

20 be received because they relate to the various counts that we have and

21 are the basis of the various counts. So I need not dwell on this matter

22 any further. I think it should be self explanatory. When we say as in

23 Rule 98 bis as amended, we will hear oral submissions of the parties

24 obviously on the counts of whether there is sufficient evidence to

25 sustain a conviction on any count. It means also evidence -- sorry,

Page 7861

1 submission on the alleged -- not only on the events having happened, not

2 only on the mens rea and the actus reus of the accused, but also on the

3 mode of responsibility attributed to him in terms of the indictment. So

4 I think I have made that clear and I don't think I need to explain.

5 Last point before we have a break, and that will give you half an

6 hour time to -- then to say your own is then question of what's going to

7 happen as soon as -- towards the end of May or early June, at the latest,

8 the Prosecution rests its case. Let me say straightaway that I know that

9 although at the domestic level, as I have tried to explain on various

10 occasions, this is a procedure that is -- immediately Mr. Wubben stands

11 up and says -- we hear "the Prosecution rests its case," most of the time

12 there is not even a break. You look the other side and say, Any

13 submissions this direction? I would listen to what you have to say and

14 many instances dealing with cases that involve a very short number of

15 days -- a few days, and a very short number of witnesses, there would be

16 absolutely no difficulty at all for the Magistrate or Judge to take a

17 decision which be oral infallibly. But here, I understand the cases are

18 more complicated. I, for one, referring to that particular witness which

19 you are seeking to bring again or which the Defence might wish to recall,

20 I don't recall vividly each and every moment of his testimony, but I --

21 although I do recall a lot. So I do understand and we -- when I say "I,"

22 I say we have discussed this at length over the past days and we do

23 understand that these cases before this Tribunal are somewhat different.

24 But you also need to understand that the procedure that we will

25 ultimately adopt will not render for all intents and purposes useless or

Page 7862

1 futile the whole purpose of the amended Rule 98 bis. In other words, the

2 whole exercise is to make sure that we address ourselves to what

3 traditionally were applicable Rule 98 bis processes for acquittal after

4 the Prosecution case should be -- should seek to achieve and should

5 ultimately mean. That's number one. Not -- in other words, not to

6 involve ourselves in examining certain details that need not be examined.

7 And secondly, to ensure that the whole exercise is speedily concluded,

8 speedily concluded.

9 We will have a break now. And as soon as we return in half an

10 hour's time, of course I will -- you will all, both, have an opportunity

11 to return to make submissions on what I have said. And in particular,

12 also with regard to this last part of my intervention, particularly what

13 are your intentions, evil or benign, as there might -- as they might be,

14 then ultimately we will decide and we will let you know beforehand what

15 our decision will be. We are open, of course, to any constructive

16 suggestions that you may have. We will be fully aware of your needs, but

17 you also need to keep in mind making any submissions that we have

18 responsibility to shoulder. Unfortunately, it has fell on this Trial

19 Chamber to deal with this matter first because in the Limaj case,

20 apparently, the parties have renounced to resorting to the procedure.

21 They have -- they will not be making any submissions. So the role of the

22 Trial Chamber has become much easier there. We'll here what you have to

23 say. Then you will have our decision later on, which would give you

24 roughly a good month in advance -- advanced notice and knowledge of what

25 to expect. And then we will act accordingly.

Page 7863

1 I thank you for listening, and we will resume in 30 minutes'

2 time, that is 5 minutes past 11.00. Thank you.

3 --- Recess taken at 10.32 a.m.

4 --- On resuming at 11.07 a.m.

5 JUDGE AGIUS: So I think we can proceed. If there is any point

6 on what I have stated that you think I need to expand or explain further,

7 please let me know.

8 Yes, Mr. Wubben.

9 MR. WUBBEN: Your Honour, my submission will be short in time.

10 The Prosecution is much obliged with the clarifications done in

11 the submissions by Your Honours prior to the break. It clarifies the

12 Trial Chamber's opinion in such a way that it will be supportive to

13 parties to know in advance what direction the approach should take with a

14 view to the procedure, as well as to the standard applied, too. We

15 shared this outcome of the opinions submitted by the Trial Chamber.

16 Again, it will be a support for us because it's also clarified further by

17 the Presiding Judge, and that means that we also adopt the standards and

18 the set of the submission as projected by this Trial Chamber. That's why

19 I can be short in time with my submission, only in addition two points,

20 but that's additional.

21 The first issue is, then, that the Prosecution would like --

22 that's in the phase prior to the 98 bis submission would like to revisit

23 the issue of the agreed facts among parties, meaning, for example, an

24 armed -- international armed conflict as such as a potential agreed fact.

25 This is an example, but we would like to revisit that and to contact the

Page 7864

1 Defence --

2 JUDGE AGIUS: Hadn't you withdrawn that from the indictment

3 itself?

4 MR. WUBBEN: Well, the international part --

5 JUDGE AGIUS: Yeah, the international part.

6 MR. WUBBEN: But the armed conflict as such. I mean an

7 example --


9 MR. WUBBEN: Anyhow, we would like to prefer to contact the

10 Defence in order to propose to them and to learn their position in that

11 respect, also to expedite the trial in such a way that even in advance it

12 is clear that we can trim our case as regarding the facts. That's one

13 issue.

14 The second issue is the scheduling as such after, so subsequent,

15 to the finalisation of the Prosecution case. There is then, first as we

16 perceive it, the submission by Defence counsel; then subsequent,

17 submission by the Prosecution. We should be able to address the

18 submission by Defence counsel fully and to do it in a professional way,

19 and we will do so, meaning also that we are interested in time scheduled

20 for a break between those two submissions and we would like to learn the

21 opinion of the Trial Chamber in that regard because what might be

22 supportive if that break is short in time that the Defence is able to

23 give prior notice to the parties, including the Trial Chamber and the

24 Prosecution, of the issues that will be addressed in their submission.

25 So if the break is short in time, that will certainly expedite the

Page 7865

1 proceeding as such. We should be able, then, given the fact that there

2 is a prior notice, let's say one or two weeks in advance, that we are

3 able to already work on the preparing of those issues. And we would like

4 to learn the opinion of the Trial Chamber, and that is also an aspect I

5 believe the Trial Chamber will be supportive upon that decision-making

6 whenever the Trial Chamber by itself learn to what length the submission

7 is intended by the Defence.

8 And this also gets back to the general observation that, and I

9 quote you, Your Honour, "neither party should be taken by surprise," as

10 such. Including, that's my conclusion, that there's time to prepare.

11 Thank you.

12 JUDGE AGIUS: I thank you, Mr. Wubben.

13 Who is going to deal with this? Mr. Jones?

14 MR. JONES: Yes, I will, and I might just put the lectern up, if

15 you just give me a moment. Yes. Thank you, Your Honour.

16 I wanted to firstly just say some general -- well, give some

17 general comments about Rule 98 bis and then come to the points made by my

18 learned friend in response. And firstly, I just wanted to say a little

19 about the virtue, if you like, and the importance of Rule 98 bis from the

20 Defence side. Firstly, everything Your Honour said this morning confirms

21 our understanding of the new Rule 98 bis, namely, obviously, that it's

22 oral but that it's -- no longer party-driven, to a certain extent a

23 proprio motu power of the Chamber, that there would be a reasoned

24 decision and possible right of appeal. Arguably that would involve

25 leave, but that's a peripheral matter.

Page 7866

1 In terms of the virtue and importance of Rule 98 bis, I wanted to

2 emphasise that a little bit, partly because Your Honour suggested last

3 week that it might be something which in a practical spirit we could

4 bypass and go straight on to the Defence case. I just wanted to say that

5 for our part, if we will make a Rule 98 bis submission - which we will

6 do, I can confirm that now - it's because we genuinely believe it should

7 succeed. If we make it for the whole of the Prosecution case that it

8 should succeed entirely, and that we should all be prepared to go home;

9 in our case, literally go home, figuratively for the other parties. The

10 case will be over in June. If we make a submission, we're not just going

11 through the motions of making a motion which we know will not proceed, we

12 think that the Prosecution has not made out the essential elements of

13 their case.

14 So going back to the general elements of Rule 98 bis. I think it

15 would be impossible to abolish it altogether because of course if the

16 Prosecution has to prove X, Y, and Z, and those are essential elements

17 what they have to prove, if they haven't proved X, let's say, then

18 obviously there's no point of going on to the Defence case, there's no

19 point as a practical matter, because that's months of trial, tens of

20 witnesses, hundreds of thousands or Euros or dollar which have been spent

21 when it needed by because the Prosecution hadn't established the basics

22 of what they need to establish.

23 And there is also, as Your Honour said, a point of principle

24 which is if the Prosecution hasn't even made out the outlines of their

25 case, then the defendant is not called upon to bring witnesses to answer

Page 7867

1 a case which hasn't even been made out.

2 Your Honour referred to the right to remain silent. Just for

3 purposes of clarification, I understand that to mean the right not to

4 call witnesses on his behalf, because of course the right of the accused

5 to remain silent remains throughout the Defence case. And indeed I would

6 even go so far as to say that given the difference in threshold between a

7 prima facie case and beyond a reasonable doubt, it could even be that you

8 have an unsuccessful submission, no evidence called by the Defence and

9 still an acquittal. In any event, that's all just by way of

10 clarification.

11 JUDGE AGIUS: Just for the record, I agree entirely with you, Mr.

12 Jones. It has never been doubted indeed.

13 MR. JONES: Thank you.

14 Your Honour referred to the history of this Rule. I think what's

15 important in the light of what I was just saying about the virtue and

16 importance of Rule 98 bis, it may be that in the past it has been

17 somewhat abused, in the sense that perhaps sometimes there was

18 applications that have been made which should not have been made because

19 there was clearly a prime facie case and written submissions had become

20 lengthier and lengthier. So that eventually one had two trials, two sets

21 of lengthy pleadings, at the close of the Prosecution case and then again

22 at the close of trial.

23 That's why we're adamantly in agreement with the Chamber that

24 this should be absolutely an oral proceeding and it shouldn't slip back

25 into a proceeding in which there are exchange of written pleadings. And

Page 7868

1 that will bring me in a moment to Mr. Wubben's request for written

2 filings in advance of the application.

3 As far as the test is concerned, I think that that too is clear

4 and it was helpful, for Your Honours' confirmation, that the test is the

5 same. And in fact -- I suppose in other words it's because evidence must

6 be sufficient to sustain a conviction for the case to go ahead. So in

7 other words, if there's not sufficient evidence, then it stops there. It

8 makes perfect sense.

9 There's the test which we're familiar with in the common-law

10 jurisdictions of whether a reasonable trier of fact could convict on the

11 evidence, but I think it's much of a muchness that these are the same

12 sort of tests. So again it's to -- we can confirm from our part that our

13 submissions will be very focussed as to there being no evidence or

14 practically no evidence on certain elements and we won't make extensive

15 submissions about the weight which should be accorded different items of

16 evidence and certainly not to all sorts of matters which are not directly

17 pertinent.

18 And again just for a general understanding, my understanding from

19 my experience in the UK is that a submission would be, for example, where

20 you have a crime like facilitating a legal entry or gain - and we would

21 submit gain has not been shown, no evidence whatsoever of gain - and if

22 we're right it's over; or murder, where there is no proof of death --

23 JUDGE AGIUS: Again, I think it is worth interrupting you. This

24 is precisely the way we look at it. And you can imagine, each and every

25 count here has got its legal ingredients requirement. And if you think

Page 7869

1 that the Prosecution case should stop because one of these requirements

2 has not been fulfilled, that's what you should concentrate on and we

3 don't want to hear submissions on the rest.

4 MR. JONES: Precisely. And it may be, and to anticipate a point

5 I was going to deal with later, when we deal with command responsibility,

6 there are clear cumulative elements which have to be shown by the

7 Prosecution and there is no dispute as to what those elements are. And

8 it may be that our submission might be just on, let's say, the very first

9 one or the second one, and simply that that element has not been shown,

10 and of course it follows that if that element has not been shown then the

11 whole thing falls through because they are cumulative elements.

12 If we do take that approach, and we don't wish it to be

13 understood that we are conceding that there is a sufficient case on any

14 of the other points, it's simply that we wish to make a focussed

15 submission on our stronger points and that's the approach we will be

16 adopting.

17 JUDGE AGIUS: Agreed, Mr. Jones.

18 MR. JONES: Thank you, Your Honour.

19 Just a few clarifications on our part. As Your Honour said this

20 is no longer party-driven and looking at the rule it's no longer evident

21 that it's clearly a motion by the Defence.

22 JUDGE AGIUS: It's not. It is clear that it is not a motion by

23 the Defence.

24 MR. JONES: Yes, which does raise questions to the procedure in

25 which order the parties will make their submissions. It may be the

Page 7870

1 practical approach the Prosecution first indicate they are conceding any

2 counts; that we would then make a more substantive submission. The

3 Prosecution would respond and then we would reply. That's what we would

4 propose would be a good procedure and we can discuss in a moment whether

5 breaks would be appropriate or not.

6 As far as the oral procedure is concerned, we would understand

7 that this wouldn't preclude us for using, for example, skeleton arguments

8 or any sort of material which will just aid presentation, which would be

9 passed out on the day just simply to help Your Honours follow our

10 submissions. But if that's something which the Chamber decides it would

11 vitiate the oral nature of the procedure, then we're of course prepared

12 not to do that. It would be only to help.

13 JUDGE AGIUS: Yes, we'll deal with this. I thank you for raising

14 this matter because it had been in my mind and I forgot to mention it

15 myself.

16 Yes, go ahead.

17 MR. JONES: Yes. We would also --

18 JUDGE AGIUS: I will come to it later.

19 MR. JONES: Thank you, Your Honour.

20 We would also envision and welcome an interactive procedure as

21 well, in which -- since after all it's Your Honours who we would be

22 seeking to persuade, we would see it that Your Honours would feel free

23 interrupt at different points and put questions. In that way it could be

24 -- it would be more expedited, certainly, but it would make more sense if

25 we're effectively able to persuade Your Honours, if any doubts Your

Page 7871

1 Honours have are able to put to us during the hearing. Yes.

2 As far as two points made by my learned friend, two requests

3 perhaps. Firstly, agreed facts. It's something which -- we're always

4 open to discussions with the Prosecution on any subject, but I think as

5 far as agreed facts are concerned we would say it's a bit late in the day

6 for that. Because if the Prosecution is asking us to agree a fact it's

7 because it wasn't proved during their case and their case will be over

8 shortly. When we're talking about 98 bis, their case will be over and if

9 they haven't proved a fact which they think they should have proved at

10 that point, I hardly see that we're going to agree that fact.

11 As far as the schedule is concerned, we are really in favour of a

12 very expedited oral procedure, really to the point of where we would be

13 happy with the last witness being heard on Friday, I think it's the --

14 I'm not sure of the exact date, the 27th or the 28th, and we would make a

15 submission on the following Monday. And we thought even a week without

16 breaks, two days for the Defence to make their submissions, two days for

17 the Prosecution to respond, and a day for us to reply, would mean we

18 could have the whole procedure dealt with in a week, which firstly would

19 set a very good precedent for first application of this Rule, to show

20 that it can be dealt with in an expeditious way.

21 And secondly, because any breaks -- well, particularly breaks in

22 which it is proposed written notice be given would delay the procedure by

23 weeks, really, and I'll say why. If the Prosecution said, Well, we have

24 to have notice of the points we're going to make and they want a week for

25 something for that to happen, we of course have an equal right to receive

Page 7872

1 notice or to have a break anyway to reply on their response and the whole

2 thing would get drawn out into June, when frankly I think it's in all our

3 interests to have this proceeding dealt with in the first half of June.

4 But as a matter more of principle rather than planning. Firstly

5 as the Prosecution closes their case, we can't notify them of the points

6 we are going to take because that would be tantamount to alerting them to

7 things they haven't proved. So if we were to say before they close their

8 case, Oh, actually you haven't produced any evidence on this point, then

9 they can come back and fill that gap and we would have done the

10 Prosecution a favour, which it's not any part of our duty to do.

11 So one can only contemplate the starting point of any notice

12 coming once the Prosecution case closes. So as I say you have delays

13 already from the procedure we are proposing where we start straight in on

14 Monday after the last witness is heard on Friday.

15 And if we, the Defence, who after all are going to be doing most

16 of the running on this motion, if we are prepared to go straight in after

17 the trial closes, then we say the Prosecution should be willing to do the

18 same.

19 But perhaps more fundamentally as a point of principle, this

20 isn't a motion where the Prosecution is going to be surprised or ambushed

21 by anything, because quite simply we are going to be making submissions

22 that insufficient evidence is produced on certain counts. The

23 Prosecution absolutely should know at this stage what they say proves

24 each element and each count. The Prosecution should know right now that

25 let's say for Bjelovac proof that subordinates of our client committed

Page 7873

1 the crimes, they should be able to say this witness and the other

2 witness. It's something which they should have to hand immediately. And

3 so it should be something they should respond to immediately when we say

4 there has not been sufficient evidence. There is nothing coming from

5 left field, as they say, which will surprise the Prosecution.

6 If we were to make legal arguments which would involve arguing on

7 the basis of authority, and I can see the Prosecution saying can we be

8 alerted beforehand if you're going to be relying on this authority or

9 that authority or make this legal argument. That's fair enough. But

10 these are factual matters which -- we've all been following the evidence

11 given in this case and there's no reason at all why the Prosecution

12 shouldn't be able to immediately respond on our submissions.

13 Just two -- some final points as well to clarify our

14 understanding. We agree entirely that authenticity and credibility are

15 not issues which we would be getting into, which is partly a reflection

16 of the fact that you would be taking the Prosecution's evidence at its

17 highest, to a certain extent. However, of course, if there is a document

18 which Prosecution was relying on and it has been shown to a witness and

19 the witness says that doesn't reflect the reality, or it hasn't been

20 shown to any witness, then of course we will reserve the right to say

21 that document has no probative value because it hasn't been confirmed by

22 any witness. That's not really an authenticity issue, it's just to say

23 we may make submissions on documents.

24 Also, in terms of the way we would structure our submissions, we

25 would, as Your Honour suggested and as we've confirmed, address very

Page 7874

1 specific elements and counts in a very focussed way; however, to do that

2 it may be that there is a chain of reasoning which -- which has to be

3 followed where we would first have to say on in general subject there has

4 been no evidence of such, and then another area, and then that would lead

5 to the conclusion that there was insufficient evidence on that count. So

6 to alert Your Honours that we may deal in other matters, but in a

7 directly relevant way which I will be happy during the course of

8 submissions to explain the relevance. And we also may structure our

9 submissions not necessarily in the order of the counts. We might do them

10 in another order. But I'm sure that's all --

11 JUDGE AGIUS: And for that particular purpose, may I put it to

12 you, Mr. Jones, that I believe you should be the one -- in other words,

13 when I say "you," it's the Defence that should be the one to go first and

14 not the reserve.

15 MR. JONES: Yes, because otherwise the Prosecution would feel

16 to --

17 JUDGE AGIUS: I hope that's agreeable to you as well.

18 MR. WUBBEN: Yes.

19 JUDGE AGIUS: That's how I have always seen it and I want to make

20 sure that you fully agree with this approach: Defence should go first,

21 choose the way to present their case for acquittal, and then you will

22 respond, preferably trying to keep to the same pattern or the same order

23 of arguments as presented by the Defence, if that -- but of course you

24 will have other options available if you want to.

25 Yes, Mr. Jones.

Page 7875

1 MR. JONES: Yes, and unless I can assist Your Honours further,

2 that's really all I wanted to say. And really just to reiterate that

3 we're in favour of the most expedited oral proceeding conceivable. We

4 think it's a good precedent to set and that we are opposed to any filing

5 of notice and what not, because -- it's particularly also for this

6 reason: That if we were to give notice or have to be obliged to give

7 notice to the Prosecution of their points and possibly the converse from

8 their side, we would be in a situation where, as with any written

9 submissions, if we omitted something it would be open to the Prosecution

10 to still claim, oh, well, we've been ambushed, we didn't know this point

11 was going to be taken. It would be open to the Prosecution to say this

12 is obviously a point the Defence has just thought up because they didn't

13 put it in their notice. And generally, as with any written submission,

14 it puts pressure on us to have a full, written submission to make sure

15 that we're fully entitled to raise the points in the oral hearing. So I

16 would submit that very quickly we would slide back into a written

17 procedure and that the only way really to ensure that the spirit of the

18 rule is observed is for it to be fully oral, albeit with aids on the day,

19 skeletons, and what not, which might assist Your Honours to understand

20 and follow the submissions. Thank you, Your Honour.

21 JUDGE AGIUS: I thank you, Mr. Jones. I'll try to address all

22 the points raised, with the understanding that some of these points

23 obviously we have not had time to discuss amongst ourselves. So Judge

24 Brydensholt and Judge Eser, as I go along if there is anything that you

25 want to reserve your position upon or disagree with me, just stop me. We

Page 7876

1 will have a short break and we will discuss outside, just in case I say

2 anything with which you're not in agreement. All right.

3 [Trial Chamber confers]

4 JUDGE AGIUS: So, Mr. Wubben, do you want to respond to what has

5 been mentioned by Mr. Jones?

6 MR. WUBBEN: Yes, Your Honour. In short, and focussed on the

7 prior notice, that that's an issue that's driven -- not to be informed in

8 detail but is driven by the argument that we should give a specific

9 response to a submission -- an oral submission by Defence counsel

10 regarding 98 bis. That means that this Defence counsel that select the

11 details for that submission and if we are then able to respond directly

12 to that, that will be a -- quite an effort to comply with all the issues

13 that will be -- will be dealt with by the Defence.

14 Rather, if the Defence is afraid of giving away their position or

15 giving away the possibility that -- or not giving away, but put the

16 Prosecution in the position that we know that our evidence might be weak

17 or not, that that can be avoided by giving us as much as possible the

18 issues and not putting it in a way like, these are the issues we will

19 address, but the caveat in this moment in time, we will inform you of

20 these issues we will address during that submission.

21 And anyhow, in preparing it it's easy to say that we have the

22 factual information available. Yes, we have; but to put it in a manner

23 that will address efficiently and effective the submission of the

24 Defence, that is step two and apart from that there are also, apart from

25 the factual allegations, there are also the legal elements and the legal

Page 7877

1 questions, preliminary questions, to dispute and then to deal with.

2 The second part, that last part, briefly also to the skeleton

3 issue raised by the Defence counsel. As I envisaged when I looked at the

4 Trial Chamber decision in the Brdjanin case and in the Hadzihasanovic and

5 Kubura case regarding 98 bis, there is this framework of first the

6 preliminary questions and then focussed on general legal elements. And

7 then it comes to the factual parts of the counts, and then subsequent to

8 the legal parts of the count. Now, this -- this can be followed as such,

9 meaning -- meaning that framework is a kind of proof of technology and

10 enable parties to give a kind of overall skeleton for their submission.

11 I'm much obliged that Defence counsel raised this because it will also

12 serve and support the Prosecution.

13 When it comes -- and that's my latest point -- filling in the

14 date of the -- of the 98 bis submission, to starting of it, and now

15 already speaking about the mandate to start subsequent to the end of May,

16 for me, that is really speculation. I don't know to what extent the

17 submission will be by the Defence. I don't know the specific date, the

18 last date. We are still in the phase of rescheduling our witnesses.

19 Depending on these circumstances, I would prefer and advise Trial Chamber

20 to learn first more information and then not to jump right away, but give

21 both parties the time to prepare for their submission. Thank you.

22 JUDGE AGIUS: Okay. Thank you.

23 Let's have a very short break. I -- everyone needs -- will stay

24 here, wait a little bit, because we'll only be a couple of minutes out

25 just to make sure that we are fine-tuned, as we usually are on

Page 7878

1 practically everything. Thank you.

2 --- Break taken at 11.36 a.m.

3 --- On resuming at 11.42 a.m.

4 JUDGE AGIUS: So the accused is here as well.

5 So I thank you both, Mr. Jones and Mr. Wubben. We've had a short

6 discussion in the meantime. The idea is to ensure that we are

7 fine-tuned, the three Judges, as possible. As I said, we are almost

8 always very well fine-tuned.

9 Let me try and take a few points that have been raised one by

10 one, but before I do so let me make also one thing clear which I failed

11 to mention earlier on and this relates to the retroactive application of

12 the amended Rule. You know as much as we do, that we have Rule 6(D) of

13 our Rules which provides that "An amendment shall enter into force after

14 seven days of issue of an official Tribunal document containing an

15 amendment, but shall not operate to prejudice the rights of the accused

16 or of a convicted or acquitted person in any pending case."

17 I have not heard any submissions, and I would have expected those

18 submissions to come from my right side.

19 MR. JONES: Yes.

20 JUDGE AGIUS: I have not heard any submissions that -- to the

21 effect that the application of the current Rule 98 bis would prejudice

22 the rights of the accused.

23 MR. JONES: Yes, and for the record I should just confirm that we

24 don't wish -- we wouldn't say that it prejudices the accused's rights.

25 JUDGE AGIUS: Right. I thank you, Mr. Jones, for clearing that.

Page 7879

1 Now, let's start with the other matters raised. Agrees facts.

2 Of course, Mr. Wubben, I do and we all appreciate your effort to have

3 this exercise carried out before you come to the stage of making final

4 submissions on the Rule 98 bis exercise. I do see the importance of it.

5 But short of the Defence adhering -- agreeing with you, adhering to your

6 request, we can do nothing about it. I mean, this question of agreed

7 facts at this stage of the proceedings is, in my view, nothing that the

8 Trial Chamber should involve itself with. It involved itself with it

9 during the pre-trial stage, as you recall. We made an effort to see if

10 you could come halfway. After that, you had both filed written

11 submissions on this matter and agree on a few facts and disagreed on the

12 crucial.

13 I think, Mr. Wubben, if Mr. Jones doesn't want to cooperate with

14 you on this, which is his prerogative, it is his choice, I would suggest

15 to you that you do not try to involve us in the exercise.

16 The question of -- I come to the next point. The question of how

17 much information and in what form should it be -- should it be exchanged

18 between the parties. My clear message to you is the following: You are

19 of course free to exchange between yourselves notes and information as to

20 what points you are going to cover during the submissions and any further

21 information that you might like or be ready to disclose to the other

22 side, but please don't try to use this as a means of reverting to the old

23 system of written submissions.

24 You are also free, because this point was raised by Mr. Jones,

25 during your submissions to present -- make presentations -- I don't know

Page 7880

1 what you might have in mind. But if you think that your submissions may

2 be enhanced and be projected better by means of, I don't know, a chart

3 for example, a chart explaining, for example, what, according to you, was

4 the chain of command, well you're free to do that. But if what you meant

5 was essentially reducing into writing the submissions that you would make

6 orally, then that will be resisted because that would be tantamount to

7 reverting in a clandestine manner to the old regime of having written

8 submissions when the idea is to do away with those written submissions.

9 In other words -- because I am trying to read into your minds.

10 If this is intended as notes which would be a sort of a -- an aid to the

11 Trial Chamber to try and focus better on the points made during the oral

12 submissions, I thank you very much, we don't need it because we will have

13 the transcript in any case and we will be able to look at the transcript

14 whenever we need to look at the transcript. If it's other matters that

15 you think will help you advance better the points that you are trying to

16 make during the oral submissions, yes, of course, depending on what they

17 will be, you will have every chance of doing that. But please use your

18 discretion.

19 The standard rule should be, we have changed, switched, from a

20 written procedure to a distinctly oral one and it -- we should honour our

21 commitment and make sure that it remains an oral one. That's all. Okay.

22 Can I ask Mr. Jones on behalf of the Trial Chamber to, yes, tell

23 you beforehand what his submissions are going to be or at least some kind

24 of submissions. And first of all, I see a lot of value in the point made

25 by him that until the very last word coming from the mouth of your very

Page 7881

1 last witness has been uttered, I don't think he should even be in a

2 position to speak up. After all, as you all know, he is not bound to

3 stand up and tell you what he is going to submit two days later or three

4 days later. I mean, it's -- so we will not raise that matter with Mr.

5 Jones, with Mr. Jones. It's a matter of maybe further contact between

6 you as we approach the D-Day, as we approach the debate on Rule 98 bis.

7 I am confident that the relations that have existed so far to

8 date between the two sides, barring certain minor incidents which, you

9 know, they are normal tiffs which happen one minute and are forgotten the

10 next, I think the relationship has been very positive and I have no

11 reason to doubt that it will remain to be so. I mean, judging from what

12 Mr. Jones himself has said, if, for example, when he stands up to start

13 with his submissions, he intends to make submissions as to whether a

14 particular crime, for example, particular crime existed at the time when

15 it's supposed to have been committed under international customary law,

16 for example, and he wants to make submissions on that, he should put you

17 on notice of. Because obviously if he doesn't and that happens, it will

18 have caught both you and us unawares. We are in a position to allow

19 ourselves as much time as we need and we don't have to respond, while you

20 have to respond. And that would be tantamount to putting you in a

21 position which you can then ask for time to study the matter and then

22 come forward to address. So it's a question I think you should use your

23 good sense, both of you, and continue in the fruitful interaction that

24 there has been and cooperation there has been between you until the very

25 end.

Page 7882

1 Mr. Jones also mentioned that he would prefer to have some kind

2 of interaction with the Trial Chamber as this process develops. Yes, by

3 all means. And I can also tell you that we will need our time as well to

4 decide because we have a greater responsibility, actually, thrust on our

5 shoulders than one would imagine. So we'll go through everything, and

6 it's not to be excluded that we may encounter some problems which you may

7 have not -- which you may have missed completely, in which case it is not

8 to be excluded that we can also, we may also come back to you in open

9 sitting, obviously, and ask you to address the matter.

10 Let me make myself clear on this because I don't want to mislead

11 you. Let's take for an instance, certain example, neutral example, Mr.

12 Jones stands up and he says on Count 2, for example, cruel treatment as a

13 violation of the laws or customs of war. His submission would be, for

14 example, as regards this count, these are the formal legal requirements

15 and these are the ingredients or the elements of the actus reus. We

16 submit that Prosecution has not adduced sufficient evidence to sustain an

17 indictment, in so far as this and this and that is concerned. Full stop.

18 Finished. And let's suppose that you will be very laconic in your

19 response and your submission would be, We beg to disagree, we beg to

20 disagree. Our submission is that this has been amply proved within the

21 parameters of the standards set. So let's say that is the position.

22 And then let's say when we are doing our homework with -- amongst

23 ourselves, also with the help of our staff, we find out that there is

24 some, for example, damning evidence that would not -- and that would

25 never really explain how on earth Mr. Jones even thought for a moment

Page 7883

1 that you had not proven that case. We are not going to come back to you

2 at that point. We are not going to tell you, Mr. Jones, please look to

3 the evidence of Mr. XY, transcript page, et cetera, lines -- so 1 to 20.

4 That you should have looked at before you stood up and took the plunge.

5 In other words, when I say that we may come back to you on

6 certain issues, it means to have a clarification, not to fill in where

7 you have left out. In other words, we come to you where we think we need

8 some clarification which would help us to come to a conclusion. I'm not

9 saying that we definitely will come back, but I'm not excluding that we

10 might come back. That's the point I wanted to make.

11 During the discussion itself, during the submissions itself, we

12 would have already of course started, like you have already, started

13 doing our homework on the Rule 98 bis. In other words, don't expect a

14 situation to obtain on the first day when you start with your submissions

15 that we will have in the courtroom where we will be working that day, the

16 Defence team who have gone through the whole records and are fully

17 prepared to make first-class submissions; similarly, the Defence, equally

18 prepared to respond in a most capable manner to all the points raised by

19 the Defence, because you would have studied in its entirety the whole

20 records of the case; and a Trial Chamber who has to start from scratch.

21 It will not be the case. We have been following the case just like you

22 have and when you come to that moment, we will be as informed as

23 possible, as informed as possible. So we should also be in a position to

24 interrupt you at certain moments and ask questions and ask you to clarify

25 this or clarify that if it is the case.

Page 7884

1 Don't expect the Trial Chamber to come here on that day really

2 ready only to hear what you have to say and then start doing its homework

3 afterwards. So it will not be the case. We will continue doing our

4 homework afterwards, and the homework will then of course focus on the

5 submissions which wouldn't be able to focus upon not having heard them

6 until you start with your submissions, but that will be the position.

7 Now, time. What you said, Mr. Wubben, alarmed me a little bit

8 because -- I hope I have misread you, because the way I understood you

9 was that although until, say, a couple of days ago, basing yourself on

10 the last -- most recent updated witness -- confidential witness list, we

11 have a more or less clear indication when we are going to finish with the

12 case of the Prosecution. And in spite of the fact that earlier on in the

13 day, after hearing both you and Mr. Di Fazio, I got the impression that

14 we might finish even earlier. I now sort of get the impression - I hope

15 I have misunderstood you - that you yourself are having second doubts,

16 second thoughts as to when you are going to finish your case. And if

17 that is the case, I'm going to call upon you to explain and tell me when

18 you intend to finish the case. If not today, you need to tell me this

19 tomorrow or Friday.

20 MR. WUBBEN: Your Honour, I can be very clear.


22 MR. WUBBEN: We expect to end the case by the end of the month.

23 JUDGE AGIUS: Okay. So then the problem more or less becomes

24 more of a cosmetic one. Let me put it like this: It seems to me that as

25 soon as you finish -- it makes a difference if you finish -- if you rest

Page 7885

1 your case on a Friday and we start on a Monday, that's basically --

2 what's in between is a weekday -- is a weekend, two days, Saturday and

3 Sunday. If you finish your case on a Monday, then you have the rest of

4 the week plus the weekend. So I think what we need to discuss is this,

5 because I do not equiparate, but on the same standard weekdays when you

6 are also expected -- I know that we all work on weekdays, all of us, not

7 just you. And I also know how sometimes the pressure of work requires

8 that you, in particular, work very hard on weekdays -- on weekends.

9 I think that need not be the case for the purpose of Rule 98. I

10 think that saying if the Prosecution case is rested on a Friday, that we

11 should start immediately on a Monday. I think that can reasonably be

12 avoided. That can reasonably avoided, provided this does not mean that

13 it would entail much delay. So what I would suggest is the following:

14 End of the May -- of the month would be what day? Tuesday.

15 So if -- let's assume -- and the understanding is that there will

16 be flexibility as we approach the date. We may change, obviously. What

17 we are saying is just by way of giving an indication what to expect.

18 Let's imagine for the time being that Mr. Wubben -- that the Prosecution,

19 sorry, rests its case either on Monday, the 30th, or Tuesday, the 31st of

20 May -- of May, May, May, May. Of May. That's a Monday or a Tuesday.

21 Mr. Jones, since you would be the first one to go -- when I say

22 "Mr. Jones," I mean the Defence. It's -- but I would take it since you

23 are more familiar with this procedure that you will be dealing with this.

24 You said you would roughly need two days to -- for your submissions?

25 MR. JONES: Yes.

Page 7886

1 JUDGE AGIUS: Assuming that we finish the Prosecution case on a

2 Monday or on a Tuesday, when would you prefer to start, the following

3 Monday or what?

4 MR. JONES: Well, our proposal was really to go right ahead. So

5 it would be disingenuous of me to give myself an extra three or four days

6 to prepare. Having said that, if we finish the trial in mid-week,

7 starting the next Monday means that we would have a week, depending on

8 how long Your Honour decides the Prosecution should have. But starting

9 with a fresh week would make sense, that so would be the 6th of June.

10 JUDGE AGIUS: That's what I thought, too. So basically that

11 would mean that you would start on the -- Monday, the 6th of June. It's

12 not a holiday, is it? Please watch out if we have any holidays.

13 MR. JONES: It's a holiday in Ireland according to my diary, but

14 none of us are Irish.

15 JUDGE AGIUS: I have Italian and French blood, but not Irish,

16 although I drink Guinness, of course. We all do, probably.

17 That would mean, basically -- my idea is the following -- we

18 don't have. If Mr. Jones takes Monday and Tuesday, that is, the 6th and

19 the 7th of June, provided that there is no real, serious reason for a

20 longer interval of time, I would suggest that you start the Monday after,

21 which would be the 14th.

22 MR. WUBBEN: Do you mean --

23 JUDGE AGIUS: The 13th, yeah, okay.

24 MR. WUBBEN: Your Honour, we would prefer to have a longer

25 interval in time.

Page 7887


2 MR. WUBBEN: Why, because, Your Honour, as we don't know what the

3 position of the Defence will be and working on it, they are already in a

4 position to work on it and we have to prepare to address it fully. So we

5 would advise the Court to take into consideration that we prefer more

6 time than a week.

7 JUDGE AGIUS: We will come back to you after we have discussed

8 this because this is the agreement that we have. We will hear what you

9 have to say and then we will obviously talk this, discuss among ourselves

10 and come back to you on this.

11 MR. JONES: If I may, Your Honour, two things really. If the

12 Prosecution has a delay after our motion and their response, then the

13 Defence equally will have to request an -- a similar delay before we make

14 our reply. What's sauce for the goose is sauce for the gander.

15 JUDGE AGIUS: Obviously.

16 MR. JONES: I just wonder whether the Prosecution has a

17 misconception about Rule 98 bis. We will be saying that they have not

18 produced sufficient evidence for the counts, and so they can prepare as

19 of this very moment to argue that there is sufficient evidence for each

20 of the counts and each of the elements. That's 90 per cent of the work

21 done. It really -- in my submission it would be a mistake to draw it

22 out, given that there are other events this June which means that the

23 procedure would get protracted into July. And in your submission --

24 JUDGE AGIUS: No, really, definitely. Forget -- for -- I simply

25 don't even want to hear the word "July." It's -- forget it. It's --

Page 7888

1 otherwise I can't even face my other colleagues on this issue. I mean --

2 MR. WUBBEN: That is not our intention, Your Honour.

3 MR. JONES: It's because we have a right to reply, that's the

4 point.

5 JUDGE AGIUS: But the thing is this. Because you are adult

6 enough and mature enough to understand how I have been moving. I could

7 have -- taking advantage of what Mr. Jones himself had stated, I could

8 have said, Prosecution will finish Monday or Tuesday of -- 30th or 31st

9 of May. Mr. Jones, I give you Wednesday and Thursday to prepare, or I

10 give you Wednesday, if you agree, and you make your submissions Thursday

11 and Friday, they would have had one day. And then I could easily look at

12 you and say, And you, Mr. Wubben, will have the weekend, maybe Monday

13 because I will expect you to rest during the weekend and you will make

14 your final submissions Tuesday and Wednesday. And we would have finished

15 in seven days.

16 MR. JONES: We're amenable to that suggestion.

17 JUDGE AGIUS: I know you are. And that's why instead of

18 suggesting that, I said let's take the three days -- remaining days of

19 the week plus the weekend, which would make it five, because it would

20 justify me looking towards you and saying you will have exactly the same,

21 another five days. Because otherwise the message that I get from the

22 Defence is that with one day or even less they would be prepared. In

23 fact, Mr. Jones has practically for all intents and purposes repeated the

24 same words that I said to my colleagues earlier on in the week when we

25 were discussing these matters. I said that knowing that Mr. Jones will

Page 7889

1 probably handling this and knowing which jurisdiction he comes from, the

2 expectation is that he will stand up and he will go through the counts in

3 the typical way in which we are used to without involving in --

4 MR. JONES: May I --

5 MR. WUBBEN: Your Honour.

6 MR. JONES: May I just say, Your Honour, the reason is that --

7 lest it be thought that I'm proposing to prepare in one day, the fact is

8 that we're preparing it the whole time. We have CaseMap, and I think so

9 does the Prosecution have CaseMap.

10 JUDGE AGIUS: And so should be the Prosecution.

11 MR. JONES: We're all in a position to prepare this as we go

12 along.

13 JUDGE AGIUS: Okay. Yes, Mr. Wubben.

14 MR. WUBBEN: Yes, Your Honour, will you please bear me a moment

15 to have an internal --

16 JUDGE AGIUS: Yeah, yeah, of course. If you want us to leave the

17 courtroom, we will do so as well.

18 MR. WUBBEN: No, Your Honour, it will be short.

19 [Prosecution counsel confer]

20 [Trial Chamber confers]

21 [Defence counsel confer]

22 JUDGE AGIUS: Yes. I see a smile on your face, Mr. Wubben.

23 MR. WUBBEN: Thank you. And I on yours. That's shared, Your

24 Honour. Your Honour, with a view to starting indeed after a week, we can

25 agree upon that. We advise to the Trial Chamber that we might put in, as

Page 7890

1 you stated yourself, that we should be flexible and not fixed on the

2 date. We might put in a caveat, indeed, that whenever there is a slight

3 issue that needs some more time for preparing, that we can get back to

4 the Court and do a submission in that respect.

5 JUDGE AGIUS: All right.

6 So for the time being the idea is the following, that basing

7 myself -- or ourselves on what Mr. Wubben said, Prosecution is expected

8 to conclude its case by not later than the 31 -- Tuesday, the 31st of

9 May. The Defence will then have two days within which to make oral

10 submissions under -- under Rule 98 bis, starting from Monday, the 6th of

11 June.

12 The Prosecution will make their submissions on -- also on --

13 under Rule 98 bis on the 13th of June, and likewise they will have two

14 days maximum for making those submissions.

15 There will then be a break of one day, which would enable the

16 Defence to respond, to reply. And any final submissions will be

17 concluded on that day. That would be, therefore, the 13th, 14th, 15th,

18 16th of June. 16th of June. Yes, Mr. Wubben.

19 MR. WUBBEN: Yes, Your Honour. With a view to the right to

20 reply, do we have a right to reply?

21 JUDGE AGIUS: We'll see. Usually not, but -- I mean, our duty

22 for the time being under the Rule is to hear submissions from the

23 parties. So I would interpret that to mean that since we have decided --

24 there's nothing written, but it stands to logic that the Defence goes

25 first and you respond and they have a right to reply. If there is

Page 7891

1 anything left which is worth mentioning, I don't see why we should put a

2 closure on you, Mr. Wubben. Please, do try to understand that this is

3 not a competition between the Trial Chamber and the parties; it's a trial

4 in which we try to cooperate with you to ensure that justice is done and

5 is also seen to be done. So that's our approach.

6 Then, this is something that we have tried to -- we have

7 discussed among ourselves. We will have business to transact the third

8 week of June, as you know. As soon as we have had business -- have

9 transacted their business, it is our intention to hand down the oral

10 decision without delay, practically immediately after. However, if as a

11 result of the business that we would be transacting during the third week

12 we feel the need to come back to you on any issue, then we will come back

13 to you on any issue on that or those issues which might need some

14 clarification if it's the case.

15 So the position is as follows. We thought it fit -- we would

16 have probably -- not probably, certainly have been in a position to

17 decide the matter before we transacted that business on the third of --

18 week of June, but it is our agreement that we would be -- we would feel

19 much more comfortable with ourselves and with our conscience, basically,

20 if we handed down our decision during -- after already the end of that

21 week. Right.

22 I think I have made myself understood. If you have any further

23 questions in that regard, please let us know. We think that -- we

24 believe that it is fit and proper that if that business is to be

25 transacted, then obviously it should precede the Rule 98 bis decision.

Page 7892

1 And then we will see what the situation will be at the end of the day.

2 I think I have dealt with -- let me just check on my notebook

3 whether -- I don't think I have left anything. If there are any further

4 issues that you would like to raise in this context, please do, please do

5 so. I think we have covered the whole terrain and more or less I think

6 there is agreement on the basic points.

7 MR. JONES: May I just have one moment to inquiry with my

8 colleague on one matter?


10 [Defence counsel confer]

11 [Trial Chamber confers]

12 [Prosecution counsel confers]

13 JUDGE AGIUS: Yes, Mr. Jones.

14 MR. JONES: Thank you, Your Honour. It was just to mention one

15 issue. In the unlikely event, as we say, that there will be a Defence

16 case, we would need at some point to think about scheduling, obviously,

17 for that so that we can plan our witnesses. There will be -- there would

18 be a pre-Defence conference, et cetera, so it's really just to mention

19 that at some stage we would have to schedule -- schedule either a

20 pre-Defence hearing or at least give us some indication of when the

21 Defence case, if it happens, would start.

22 JUDGE AGIUS: Yes. I thank you for raising that issue, Mr.

23 Jones. Of course we don't know if and to what extent the case may

24 continue -- will continue. That's a pleasure as yet to come. But if it

25 continues, then obviously there is -- your concern is our concern. So

Page 7893

1 you can rest assured that we will not, as happens in domestic

2 jurisdictions, the moment the Prosecution finishes its -- my first trial

3 as a very young lawyer, age 21, I was asked by the judge then to come

4 forward and assist a client who had just been abandoned by his lawyer and

5 the judge wouldn't listen. He wanted the trial to start -- continue. He

6 gave me one hour and a half to study the case and then the trial started.

7 This was my first trial by jury. And as soon as the Prosecution case was

8 concluded, it was not even five minutes' break, you stand up. This is

9 how it is in our jurisdictions.

10 But it will not be like that here. You will have what we will

11 consider to be ample time, not necessarily will coincide with what you

12 consider to be sufficient time, but we will of course deal with that as

13 if and when we come to it, and you will have --

14 You mentioned pre-Defence conference. That is not mandatory

15 according to the Rules, it's optional, but of course we would entertain

16 such a request if it is made.

17 MR. JONES: No. First of all, I was going to say I trust that

18 Your Honour had an acquittal for your first trial, but I won't inquire.

19 But really it's for us to know whether we need to have witnesses

20 ready in July.

21 JUDGE AGIUS: I had him acquitted on the charge which was of

22 grievous bodily harm. He was finally found guilty of slight bodily harm.

23 That's it, which wouldn't have warranted trial by jury in the first

24 place.

25 But let's bring this sitting to an end here.

Page 7894

1 MR. JONES: It was just if we needed witnesses here in July.

2 That's all we need to -- not to --

3 JUDGE AGIUS: Mr. Jones, we are fully aware that 23rd of July we

4 go on recess in any case. So if we are talking -- if we are talking

5 about the Rule 98 bis decision being given towards the end of June or at

6 the latest the very early -- earliest in July, I don't think there is a

7 point in worrying about this issue any further, at least for the time

8 being.

9 MR. JONES: Right. Thank you, Your Honour.

10 JUDGE AGIUS: I think you have understood my language. All

11 right.

12 MR. DI FAZIO: Yes.

13 JUDGE AGIUS: I thank you. And we will reconvene on Friday, now,

14 I take it. Friday in the morning. Please correct me. I think this

15 whole week is in the morning. In the morning, and we will start with the

16 testimony of the witness that you mentioned. Yeah, but I will -- we can

17 do it --

18 On that Friday we are going to try and do it this way like we did

19 it last time because Judge Eser needs to leave the courtroom a little bit

20 earlier. We will have one break instead of the usual two, and we will

21 finish at around about half 1.00 or something like that or -- yeah, or

22 something like that. Anyway, that's the idea. So that you schedule your

23 examination-in-chief accordingly.

24 Thanks. And we will not be sitting, of course, on the 13th as

25 you all know. It's not because of this scaramanzia, Friday the 13th, but

Page 7895

1 that we agreed that we need that day for deliberations. Thank you.

2 --- Whereupon the hearing adjourned at 12.27 p.m.,

3 to be reconvened on Friday, the 4th day of

4 May, 2005, at 9.00 a.m.