Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9624

1 Monday, 22 August 2005

2 [Pre-Defence Conference]

3 [Open session]

4 --- Upon commencing at 11.59 a.m.

5 [The accused entered court]

6 JUDGE AGIUS: Call the case, please.

7 THE REGISTRAR: Good morning, Your Honour. This is the Case

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

9 JUDGE AGIUS: I thank you.

10 Mr. Oric, can you follow the proceedings in your own language?

11 THE ACCUSED: [Interpretation] Good afternoon, Your Honour,

12 gentlemen. Yes, I can follow the proceedings in a language I understand.

13 Thank you.

14 JUDGE AGIUS: Thank you, and good afternoon to you.

15 Appearances for the Prosecution.

16 MR. WUBBEN: Good afternoon, Your Honours, and also good

17 afternoon to my learned friends of the Defence. My name is Jan Wubben,

18 lead counsel for the Prosecution; and together with co-counsel, Mr.

19 Gramsci Di Fazio; Mrs. Joanne Richardson; and Mrs. Donnica

20 Henry-Frijlink.

21 JUDGE AGIUS: I thank you, and good afternoon to you.

22 Appearances for the Defence.

23 MS. VIDOVIC: [Interpretation] Good afternoon, Your Honour. I am

24 Vasvija Vidovic. Together with Mr. John Jones we are the Defence of Mr.

25 Naser Oric, together with Ms. Adisa Mehic and Jasmina Cosic, and also our

Page 9625

1 CaseMap manager, Mr. Geoff Roberts.

2 JUDGE AGIUS: I thank you and good afternoon to you and your

3 team.

4 As you may have noticed Judge Eser is not with us today. He has

5 a personal family problem he has to attend to. He will be with us on

6 Wednesday, but we discussed and I preferred him not to be here, actually,

7 to be able to attend to his problem. So we are sitting and invoking the

8 provisions of Rule 15 bis. And that's the first thing that I wanted you

9 to know.

10 Now, we can safely proceed with our pre-Defence conference, which

11 as you know, is being held to Rule 73 ter (A) of the Rules and as a

12 sequitor to the Appeals Chamber interlocutory decision on the length of

13 Defence cases pronounced on the 25th of July this year. I will just, for

14 public information, and also to update you, try to review the happenings

15 since the last day of trial, which as you remember, was on the 14th of

16 July.

17 As you recall, on the 20th of July the Appeals Chamber issued its

18 interlocutory decision on the length of Defence case, which is the duty

19 of this Trial Chamber to implement. As a result of that decision, we

20 issued a scheduling order on the 21st of July, by virtue of which we

21 required the Defence to file its witness list pursuant to Rule 65 ter

22 (G)(i) of the Rules to indicate in its witness list whether it intends to

23 avail itself of the choice indicated in the interlocutory decision to

24 begin presenting its case again and whether it intends to recall the

25 witnesses who have already testified in the Defence case to give evidence

Page 9626

1 on other matters that flow from the interlocutory decision and upon

2 filing its witness list to indicate the estimated time it will require to

3 file its brief. The same scheduling order we also required the

4 Prosecution to file a note indicating the total estimate time they would

5 require for cross-examining each of the Defence witnesses and upon filing

6 the note also to indicate the estimated time they would require to file

7 the final brief.

8 The scheduling order of the 21st of July also ordered or directed

9 that a meeting be called by the -- by our Senior Legal Officer, Mr. Von

10 Hebel, pursuant to Rule 65 ter (D)(iv) and (v), of the Rules to prepare

11 for today's pre-Defence conference. And we also convened this

12 pre-Defence conference for today, and we also indicated that the trial

13 will re-start the day after tomorrow, that is on Wednesday, the 24th.

14 On the 4th of August, pursuant to our scheduling order, the

15 Defence filed its witness list. In terms of this filing, the list

16 contains 44 viva voce witnesses and three Rule 92 bis witnesses. The

17 witnesses, according to the same document, are expected by the Defence to

18 require a total of 158 hours for examination-in-chief. The Defence

19 indicated in its filing that it does not intend to begin presenting its

20 case again, and that therefore they will not seek to recall the four

21 witnesses who have already given evidence in this case. And the Defence

22 also gave an indication that they would in their estimate require four

23 weeks following the close of the case, of the Defence case, to file the

24 Defence final brief.

25 On the 15th of August, the Prosecution filed its respective note,

Page 9627

1 according to which the estimated time Prosecution requires for

2 cross-examining the Defence witnesses indicated to be or to total 136

3 hours. The estimated time the Prosecution will require to file the

4 Prosecution final brief is also estimated to be of one month, that is

5 exactly the same period of time required or estimated by the Defence.

6 The Rule 65 ter meeting -- conference was held as scheduled under

7 the chairmanship of the Senior Legal Officer. It was held on Wednesday,

8 17th August, and more or less in terms of the reports that we have

9 received the records indicate the following: That the Senior Legal

10 Officer indicated to the parties that the Trial Chamber, having reviewed

11 the filings of the parties, had no further guidance or direction to give

12 to the Defence or to the Prosecution with respect to the number of

13 Defence witnesses. And therefore it follows that the total number of

14 witnesses proposed by the Defence is 51; that is, the four witnesses

15 already called, 44 viva voce witnesses to be called, and three Rule 92

16 bis witnesses.

17 The total trial hours anticipated by both parties, that is for

18 examination-in-chief and cross-examination of the remaining Defence

19 witnesses, is estimated at approximately 294 hours.

20 The parties were informed, and I want to confirm here, were

21 informed by Mr. Von Hebel that there will be some days in the remaining

22 calendar year in which trial will not be held due to the lack of

23 availability of the Judges, particularly for strictly personal reasons.

24 I'm going to go through these slowly, particularly since the first two

25 are very near in time and I want to make sure that the Defence, in

Page 9628

1 particular, are prepared for those two days.

2 We will not be sitting on the 1st and on the 2nd of September

3 unless there is a request forthcoming from the Defence in particular that

4 we sit, in which case we would sit, the two of us, Judge Brydensholt and

5 myself. But Judge Eser will not be with us. Again, these are strictly

6 personal matters, strictly personal matters, but I'm putting you on

7 notice that unless we hear from you we will not be sitting on the 1st and

8 2nd of September.

9 Then again for strictly personal matters, reasons, pertaining to

10 one of the Judges we will also not be sitting on the 20th, 21st, 22nd,

11 and 23rd of September. I repeat the days: Tuesday, 20th September, to

12 Friday, 23rd September, both days included. Again, if there is a major

13 opposition or circumstances are such that you would require us to sit, we

14 will see what we can do. But the situation is as I said. Then we will

15 not be sitting, or at least for the time being - this may change - we

16 will not be sitting on Friday, the 7th of October, and we will not be

17 sitting on Monday, the 21st of November. Monday, the 21st of November.

18 We have inter alia discussed among ourselves, Judge Brydensholt,

19 Judge Eser, and myself, and we realised that we are starting the day

20 after tomorrow and until mid-December when we go into recess, we don't

21 believe that we should continue sitting without a decent break. In other

22 words, it's too long a period for any Trial Chamber to continue --

23 continue sitting. So we will see where we will fit a week -- a week or a

24 few days to give the opportunity to the Defence and the Prosecution, to

25 the parties, to rest a little bit and also re-organise their affairs.

Page 9629

1 But we will give you an indication of this later on and that also all

2 depends on how we are moving actually. If we see that there is no place

3 for such a break, then there won't be such a break. But we anticipate

4 that we will all need a break at some point in time. So that is the

5 position.

6 I mentioned, as you will recall, the few witnesses, three I

7 think, Rule 92 bis witnesses. I am informed by Mr. Von Hebel that he

8 discussed this with the Defence team and that there was an indication

9 that a motion with regard to these three witnesses would be forthcoming

10 shortly. I haven't seen one until now. Please inform us as soon as it

11 is filed.

12 There is -- there are two motions outstanding. I will only deal

13 in open session with the first one, then we go into closed session very

14 briefly for a couple of minutes on the second one because it's a

15 confidential one and I cannot discuss it in open session. The first one

16 relates to a request, a fresh request, for protective measures in

17 relation to witnesses D001 and D005. We would very much appreciate a

18 response from the Prosecution as soon as possible, particularly in

19 relation to the first of these witnesses, to whom we have already

20 extended full protective measures, D001. It's being indicated to us that

21 when he testified or she testified in other cases, including the

22 Milosevic case, the testimony was always in closed session because the

23 subject matter is such that it would reveal his or her identity. So that

24 is something I think that you can deal with very quickly.

25 The other one is D005. I invite you to have a look at the

Page 9630

1 statement accompanying the motion, statement of D005, which throws a

2 little bit more light, more information, to -- in addition to what we had

3 already -- when the first motion was filed about a month ago or more.

4 And we would like to know whether you take the same position you took

5 when we had the previous motion or whether you want -- wish to change

6 your position now. You don't need to answer me today, of course, Mr.

7 Wubben; I mean, if you can, obviously we can start preparing the decision

8 straight away.

9 MR. WUBBEN: Thank you, Your Honour. I am confident to put my

10 oral submission already by this afternoon in response to the motion.

11 Referring to D001, we approve, indeed, the closed session as being

12 concludent [sic] with prior measures put by the other Trial Chambers.

13 Regarding D005, well we -- we will not oppose the protective measures.

14 We took into consideration the factual background, but we will also put

15 the caveat that this will not be a precedent for other future witnesses,

16 as each witness should be judged by Trial Chamber upon their own facts,

17 as such -- as background.

18 JUDGE AGIUS: So let's put it like this: I think we can take a

19 decision here and now, and that will be an oral decision. It will spare

20 us having to come down with a written one. Witness D001 will testify in

21 closed session, and Witness D005 will testify with pseudonym and facial

22 -- with pseudonym -- I want to see --

23 MR. WUBBEN: Facial and voice distortion, Your Honour.

24 JUDGE AGIUS: -- facial and voice distortion. And in addition,

25 as we go along, obviously if there are areas which -- he will testify in

Page 9631

1 open session, but if there are areas which could potentially reveal his

2 identity for those bits and pieces we will go into private session.

3 If you require this in writing, I don't think you do, but if you

4 require it in writing for other purposes, CLSS -- the victims and

5 witness, I don't know, please check my staff. And if we need to hand it

6 down in writing, it's easy, we can hand it down in writing.

7 Let's go to private session for a while, please -- or closed

8 session, rather, closed session.

9 [Closed session]

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 [Private session]

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 9632

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 [Open session]

11 JUDGE AGIUS: Okay. We are back in open session.

12 Last week after my return, I found on the intranet a notice that

13 the Sarajevo airport will be closed from the 2nd to the 9th of September,

14 both days included at least, unless further days are required. And I

15 thought of once at asking Mr. Von Hebel to deal with this, to make sure

16 that we are not impeded, in other words in -- or that if we are, we would

17 know so that we will make any adjustments to our schedule as necessary.

18 The indication that I have is that this is not going to be an

19 obstruction. This is the indication that I have. Of course, we are open

20 and you will find us more cooperative than you can imagine if this

21 creates a problem. In other words, it seems that it's not going to

22 create a problem between -- for those witnesses coming forward during

23 those days, but it's not exactly clear to me whether the witnesses that

24 are scheduled for the days after the 9th of September are going to be --

25 to be affected. The indication that I have is that Witness Number 7

Page 9633












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13 English transcripts.













Page 9634

1 would be already here before the 9th, and therefore there should not be

2 any problems. Correct me if I'm wrong. Please come back to us if there

3 are any problems. Let us know in good time, because obviously all the

4 witnesses that need to come here for that week must travel from other

5 airports. All right?

6 Do you have any problems that you are envisaging at the moment,

7 Ms. Vidovic?

8 MS. VIDOVIC: [Interpretation] Your Honours, I believe that there

9 won't be any problems now.

10 JUDGE AGIUS: All right. But if you do encounter problems,

11 please do let us know.

12 Now, basically we've done a little bit of homework. The Trial

13 Chamber does not in any way intend to restrict you in the production of

14 the evidence, and if everything goes according to the estimates that you

15 have indicated we are anticipating that the Defence case should not take

16 us beyond the end of January of next year. So our direction -- directive

17 is a that the Defence ought to try and conclude its case by the end of

18 January. Obviously if there are problems - problems can always arise -

19 we would consider extending that as necessary.

20 We would also, of course, allow some time considering that there

21 may be a rebuttal. But I think we will have to play it by the ear and

22 wait until the Defence case has gone through its major part, and that

23 would give you an indication of whether you would require a rebuttal or

24 not. What we can promise you is that after that -- if there is a

25 rebuttal, after that the rebuttal is over you would have one month within

Page 9635

1 which to file the final briefs. Now, this is not one month each, one

2 month for the Defence and one month for the Prosecution, it's one month

3 common to both. I'm making myself very clear. During that month you

4 need to come forward with your final briefs. And then we will give you a

5 full week, or less if you require less, for responses, respective

6 response.

7 Yes, Mr. Wubben.

8 MR. WUBBEN: The Prosecution at the 65 ter conference announced

9 that we would now take our position, and we agree to one week. Yes, Your

10 Honour.

11 JUDGE AGIUS: Thank you.

12 We'll give you a week for responses, which is ample in our

13 opinion, and then we'll -- the idea was that there will be one week for

14 preparation of closing arguments, which I am submitting should be enough;

15 and then one week for closing arguments. This last one week for closing

16 arguments will be extended by a few days if it is so required, and it may

17 be shorter if you require it to be shorter, obviously. I mean, it

18 depends on how much you want to beef up your final briefs and responses.

19 Now, of course, we will need our time to write the decision, the

20 judgement. We anticipate, if everything goes according to schedule, we

21 anticipate that the latest, the latest, absolutely the latest, that you

22 would expect a judgement to come would be the end of June, but in all

23 probability from my experience and from what I can gather, I think we

24 will probably finish the case earlier. So that is the position.

25 Do you have any comments on these areas that I have touched upon?

Page 9636

1 Yes, Mr. Wubben.

2 MR. WUBBEN: Yes, Your Honour. You referred to the notification

3 by the Prosecution, I believe it was on the 15th of August, that

4 particular filing also include a response to the Defence motion referring

5 to paragraph 3 of the Defence motion in which the Defence in a footnote

6 and the paragraph itself used a criterion for trimming or at least

7 managing the witness list. And our argumentation was that that

8 particular observation, consideration done by the Defence, was wrong.

9 We would like again to underline that the considerations and faults of

10 this Trial Chamber at that time, a month ago, are indeed limited to that

11 particular phase and already discussed and considered by the Appeals

12 Chamber and subsequently by the scheduling order in which scheduling

13 order this Trial Chamber put it very clearly that the considerations and

14 the ruling priorly done has no other purpose than that prevent any

15 repetition of evidence. So for me, that -- those thoughts and

16 considerations as addressed by the Defence are closed.

17 JUDGE AGIUS: Do you want to comment, Mr. Jones or Ms. Vidovic?

18 MR. JONES: Yes, I would. Thank you, Your Honour. Because in

19 fact the Prosecution made that point in a filing and we didn't respond to

20 it at that point because we didn't think we were called upon to. I would

21 simply say this: In deciding what evidence to bring we can of course

22 take into account the broadest range of considerations in an effort to --

23 to spare the Tribunal waste of resources and to present our case as

24 efficiently as possible. Now, we can always bear in mind as part of that

25 the indications we have received from the Trial Chamber during the course

Page 9637

1 of the trial. The Trial Chamber gave its views at a certain point on the

2 sufficiency of evidence or the nature of the evidence which had been

3 presented on certain topics. At that stage we were actually ordered not

4 to bring evidence on those topics. That's now been changed by the

5 Appeals Chamber decision, so we have the right if we like to bring

6 evidence on those subjects. But of course, we can perfectly well bear in

7 mind that Your Honour gave those indications and the Appeals Chamber

8 decision isn't going to affect Your Honour's view of the evidence.

9 That's another, entirely different matter. And the Appeals Chamber did,

10 of course, say that or remind us not to bring repetitive evidence, but

11 that's -- we don't need the Appeals Chamber to tell us that. That's a

12 basic principle that one shouldn't bring evidence which is unduly

13 repetitive. So we do bear in mind the decisions we have received from

14 the Trial Chamber in the past. And the reason why it's worth emphasising

15 that, is that in our initial list, we had quite a long list of witnesses,

16 obviously I can't remember the exactly number, maybe it was 70-odd. For

17 us now to have a list of 40 or so and for it to be suggested that those

18 30 other witnesses were purely repetitive and that's why we've dropped

19 them would be wrong. We have taken into account what we consider the

20 indications are that we have received from the Bench and we have trimmed

21 our list accordingly and I don't see how anyone could suggest we don't

22 have a right to present our case as we see fit in light of the

23 indications which we have received. So I would simply make that point.

24 And I had one separate point to make, because I don't think

25 anything turns on the first point, frankly. I don't think there's an

Page 9638

1 order which Your Honours can give or anything of that nature. It's

2 simply a question of us presenting our view and the Prosecution

3 presenting their view.

4 The separate point I want to make is just this: that if there is

5 Prosecution evidence in rebuttal according to Rule 85 there might be

6 Defence evidence in rejoinder and so of course any four-week period --

7 JUDGE AGIUS: Can take it for granted, Mr. Jones.

8 MR. JONES: -- four-week period should run from the conclusion of

9 our Defence evidence.

10 JUDGE AGIUS: Obviously. Obviously. Obviously.

11 MR. JONES: That was all. Thank you very much, Your Honour.

12 JUDGE AGIUS: So with regard to the first of these two issues --

13 with regard to the second, I mean I don't even need to give an

14 explanation. It's obvious. With regard to the first issue, the position

15 is very simple as we see it. We gave an indication to the parties and to

16 the Defence in particular that with regard to certain matters that we

17 listed for you, 11 if I remember well, we believed that we had heard

18 enough evidence, and our position remains the same. The only thing that

19 we have been impeded now by the Appeals Chamber to do is to stop you from

20 bringing evidence on those issues. You're free to bring evidence on

21 those issues, but of course you are free to conduct the Defence, your

22 Defence, in whichever way you -- you have always been free to conduct

23 your Defence in whichever way. The only difference there is between our

24 decision and the Appeal's decision, the only difference is the Appeals

25 decision goes beyond what we had decided and -- basically which leaves us

Page 9639

1 in the same situation we were in before. We are -- don't change our

2 position as regards those 11 points. We still think we have heard

3 enough. If you want to bring evidence on those, we will see as we go

4 along whether to stop you on the basis that it is repetitive or it is

5 unnecessary. It is as simple as that. All right.

6 MR. JONES: That's how we understood Your Honours.

7 JUDGE AGIUS: It's the only way it can be understood, to be

8 honest with you.

9 Now, you know that according to Rule 75 -- 73, sorry, ter (C) and

10 (E), we shall after having heard the Defence, set the number of witnesses

11 that you may call and determine the time available to the Defence for

12 presenting evidence. Do you have anything to add beyond what you already

13 stated here and during the 65 ter meeting, Madam Vidovic?

14 MS. VIDOVIC: [Interpretation] No, thank you, Your Honour. No.

15 JUDGE AGIUS: Mr. Wubben, do you have any comments on this

16 particular issue?

17 MR. WUBBEN: The only issue is that we are still looking for 92

18 bis --

19 JUDGE AGIUS: Yeah --

20 MR. WUBBEN: But --

21 JUDGE AGIUS: We are waiting for those as well. So basically our

22 decision is as follows: That the number of witnesses the Defence may

23 call is being set at 51, which includes the four witnesses that have

24 already given evidence.

25 With regard to the suggested -- witnesses suggested to testify

Page 9640

1 under Rule 92 bis, the position of the Trial Chamber is obviously the

2 following: These will testify, but whether they will testify under Rule

3 92 bis or viva voce will very much depend on what the motion will contain

4 and what the response of the Prosecution will be. Because if you require

5 them to be here for cross-examination, for example, I mean we'll

6 obviously have to deal with it by the ear as we go along. So that's the

7 position.

8 Defence is being encouraged or invited to finish its case by the

9 end of January or early February, and we will consider extensions if it's

10 the case, if there is a just reason for that. I wish also to remind you

11 that under paragraphs (D) and (F) of Rule 73 ter, if it's in the

12 interests of justice you have a right, Madam Vidovic, to file a motion to

13 reinstate the list of witnesses or to vary the decision as to which

14 witnesses are to be called. And we would, as we are enabled by the

15 Rules, grant the Defence a request for additional time to present

16 evidence, as I said, if this is indeed in the interests of justice.

17 I don't think there is anything else that -- I am informed by my

18 staff about the site visits CDs.

19 MR. WUBBEN: There -- Your Honour, if I may. There was some

20 information with a view to the labelling as such, but it might be also

21 addressed this coming Wednesday.

22 JUDGE AGIUS: In fact that's what I was going to say, that I

23 don't think this belongs to the pre-Defence conference, that we should

24 address it first thing on Wednesday morning or Wednesday afternoon. I

25 don't know whether we are sitting in the morning or afternoon -- morning,

Page 9641

1 Wednesday morning. But since this was brought up during the 65 ter

2 meeting, I'd like you to agree this time on what's going to happen.

3 Definitely I am going to propose to Judge Brydensholt and Judge Eser that

4 the CD will become a Court exhibit and not a party exhibit. That's --

5 whoever suggested that was definitely right. So it will be a Court

6 exhibit and not a Prosecution or a Defence exhibit.

7 Is there any other matter that you would like to raise? Yes, Mr.

8 Wubben.

9 MR. WUBBEN: [Microphone not activated]

10 THE INTERPRETER: Microphone, please.

11 MR. WUBBEN: Yes, Your Honour. Just to complete your information

12 regarding my team. Attorney Jose Doria will not for the future time

13 participate in my team as an attorney. He might return in that respect

14 by the end of the Defence case. That's all, thank you.

15 JUDGE AGIUS: Okay. And on the part of the Defence, is there

16 anything you would like to raise?

17 MS. VIDOVIC: [Interpretation] Thank you, Your Honour. There is

18 nothing.

19 JUDGE AGIUS: And the accused, do you have anything to say?

20 THE ACCUSED: [Interpretation] Your Honours, gentlemen, no, I

21 don't have anything to add.

22 JUDGE AGIUS: So please God we will reconvene on Wednesday

23 morning, 9.00, and I take it we will be starting with Witness Number 29.

24 MS. VIDOVIC: [Interpretation] Yes, Your Honour.

25 JUDGE AGIUS: All right. Okay. I thank you all. Good

Page 9642

1 afternoon.

2 --- Whereupon the Pre-Defence Conference

3 adjourned at 12.39 p.m.