1 Friday, 29 January 2010
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.04 a.m.
5 JUDGE MOLOTO: Good morning to everybody in and around the
6 courtroom. Mr. Registrar, will you please call the case.
7 THE REGISTRAR: Good morning, Your Honours, good morning,
8 everyone in and around the courtroom.
9 This is case number IT-04-81-T, the Prosecutor versus
10 Momcilo Perisic. Thank you.
11 JUDGE MOLOTO: Thank you so much. Could we have appearances for
12 the day starting with the Prosecution, please.
13 MR. HARMON: Good morning, Your Honours. Good morning to
14 counsel, everyone in the courtroom. Mark Harmon, Dan Saxon,
15 Barney Thomas, and Carmela Javier for the Prosecution.
16 JUDGE MOLOTO: Thank you so much.
17 And for the Defence.
18 MR. LUKIC: [Interpretation] Good morning, Your Honours. Good
19 morning to all the participants in the proceedings. Today, on behalf of
20 Mr. Perisic, we have Chad Mair, Tina Drolec, Boris Zorko,
21 Gregor Guy-Smith, and Novak Lukic.
22 JUDGE MOLOTO: Thank you very much, Mr. Lukic. We were sitting
23 today pursuant to Rule 73 ter to determine what has to be determined
24 before we start the Defence case.
25 Mr. Lukic, I don't know whether you want me to go ahead or if we
1 will just tell you that we have seen some of your filings which seem to
2 be differing very vastly from what we were promised in the beginning. I
3 don't know whether you'd like to address the question of your list of
4 witnesses, the question of the length of the case.
5 MR. LUKIC: [Interpretation] I can give you some submissions in
6 relation to the list of witnesses. You are probably referring to the
7 framework that you asked me about in November of last year concerning the
8 length of the case. I suppose that's the drift of your question?
9 JUDGE MOLOTO: The drift of my question, I think on more than one
10 occasion the Defence promised us that the case is not going to be any
11 more than four to five months. Looking at the number of witnesses and
12 the hours that we think are calculated into your submissions, you seem to
13 be going far beyond four to five months. Almost a year.
14 MR. LUKIC: [Interpretation] Your Honours, I will now present our
15 position in relation to the list and the length, that is to say, the
16 hours required. You asked me on both occasions before the close of the
17 Prosecution case and before the start of the key preparations for Defence
18 about how long our case would last. I gave you an approximation, and you
19 confirmed and assuaged my fears that this was indeed a framework. This
20 was a framework that we arrived at before we started specifically
21 preparing for the Defence and preparing witnesses. What I can tell you
22 at this point is that the list of witnesses has been envisaged, not in
23 terms of the number of witnesses, but in terms of the hours required for
24 witnesses as a list which now goes vastly beyond the announced length.
25 Now, why did we decide to exceed the number of hours required for
1 our witnesses? At the start of the intense preparations of the Defence,
2 which was sometime in November through to today, we established that
3 there existed a large number of documents admitted in the course of the
4 Prosecution case about which not a word was uttered in the courtroom. In
5 my view, this is a rather peculiar situation which places the Defence
6 into a position where we are -- well, I wouldn't say bearing the onus or
7 the burden of proving facts, but we have to present facts.
8 Our position, even before Mr. Randall through whom more than
9 1.500 documents were admitted directly in the courtroom and then even
10 more later on through the bar table submissions, led the Defence into a
11 position where we need to call a number of witnesses because of the
12 documents that are already part of the case file. When we started
13 preparing our witnesses, working with our witnesses, we spent a great
14 deal of time analysing documents with them, and this is what I am afraid
15 of, that is to say that our examination-in-chief will have to shed a
16 great deal of light on these documents. Of course it will be up to you,
17 Your Honours, to decide ultimately whether a question or an issue is
18 relevant or not. Our position is that certain facts only need to be
19 discussed. The Prosecutor led a great deal of documents that were
20 admitted, and, in our view, they only need to be discussed.
21 Mr. Harmon produced a list which was far longer in terms of ours
22 than what was ultimately spent with the witnesses, so I can't tell you
23 this is indeed the number of hours we will spend with the witnesses, but
24 our estimation based on the situation as it is now is that we need as
25 many hours as we stated. Of course it will be up to you to decide how
1 many hours we are allocated, and we will have to adapt our Defence to
3 At any rate, the frame, the time-limits that we presented at the
4 time changed because in the meantime through discussions with these
5 people we realised that there were a great many issues we have to discuss
6 with them.
7 You will see, yourself, on the list of the witnesses we filed
8 what sort of names these are and how often these names are mentioned in
9 the document. I don't think that there can be anything more significant
10 in terms of foundation for these witnesses to be heard. If you believe
11 that a witness should not speak to a document that this individual
12 signed, then this is really a decision for the Trial Chamber to make, if
13 you think that the document speaks for itself. There are witnesses we
14 are calling that the Prosecution withdrew from their list because we
15 simply believe that they need to speak about facts.
16 JUDGE MOLOTO: Thank you, Mr. Lukic.
17 Mr. Harmon.
18 MR. HARMON: I have no comments to add to what Mr. Lukic has
19 said. The fact of the matter is we presented our case in the form that
20 we did. We have other issues that we'd like to discuss with this Court.
21 But as to what the Court decides in respect of Rule 73, we don't have any
22 submissions on that, Your Honour.
23 JUDGE MOLOTO: Yes, but you have filed a motion which, I think,
24 impacts on the 73 ter decisions.
25 MR. HARMON: Yes, Your Honour, well, we have filed a motion, and
1 that's -- I said we had other submissions, Your Honour, but not --
2 JUDGE MOLOTO: Would you like to move on to those submissions so
3 that we put them on the table.
4 MR. HARMON: I'm happy do so if the Court please.
5 JUDGE MOLOTO: Yes.
6 MR. HARMON: Your Honour, we have received the Defence list of
7 witnesses. We have, yesterday, filed a motion seeking compliance with
8 Rule 65 ter G. In our submission, we make clear that, first of all, the
9 Rule requires that there be facts that are at the core of the submission
10 in respect of witnesses. Let me just pull the Rule.
11 JUDGE MOLOTO: We have the Rule.
12 MR. HARMON: A summary of the facts on which each witness will
13 testify. When we reviewed this submission of the Defence, it was clear
14 to us and we made a submission in that we reviewed it very carefully,
15 there were some facts. There were facts as to, in most cases, as to the
16 identity of the witnesses, who they were, what they had done, not in all
17 cases. There were principally, however, a description of the topics.
18 The witness will testify about this, he will testify about this. And in
19 our view, in order to properly prepare, we need to know the facts about
20 which these witnesses are going to testify. I don't need to reiterate
21 our submission, Your Honour, but we've made it clear that we've viewed
22 this as insufficient, inadequate to enable us to prepare for proper
23 cross-examination. In one case there is a witness who will testify, I
24 think, up to 15 hours, and there's not a single fact other than
25 identifying who he is, as to what this witness will testify to.
1 So we -- our submission is that we request that we receive a
2 proper submission in compliance with the Rule, that the submission be
3 factual, that it be factual as to the witnesses who have been identified.
4 And that will enable us to do our preparations properly. It will enable
5 there to be a fair trial, and it will enable it to be an efficient trial.
6 Because if we have witnesses who come in to testify and we don't know the
7 facts about which they are going to testify, we may be in a position
8 where we request that there be an adjournment so we can prepare
9 adequately, having heard the facts for the first time about which the
10 witness will testify. That's why we have made our submission to the
11 Court. In our view, the -- a proper 65 ter summary should be provided to
12 the Prosecution next week.
13 The Defence, the last witness who testified in this case was
14 Mr. Selsky, he testified on the 25th of January. Previously, the
15 previous witness was the 4th of November. This document that has been
16 prepared by the Defence, they've had plenty of time to identify the facts
17 about which these witnesses will testify. And, therefore, we leave it to
18 the Court to determine, one, whether this is in compliance with
19 Rule 65 ter G; and if the Court deems it's not, then it's our submission
20 that a proper factual summary should be submitted to the Prosecutor by
21 next week.
22 JUDGE MOLOTO: Mr. Lukic, do you have any response to that
23 objection to your 65 ter list?
24 MR. LUKIC: [Interpretation] Yes, Your Honour. Yesterday we
25 received the filing and to the extent possibly we will give our
1 submissions now. Though, admittedly, we have certain difficulties
2 because certain sources that Mr. Harmon relies upon in the filing were
3 confidential and we couldn't review them.
4 Firstly, we believe that we met our -- the requirements under
5 Rule 65 ter G. The Prosecution stated that they were in the dark in
6 relation to the facts, that they need to prepare for witnesses, well, I
7 don't think so. I think that their position is much better even if we
8 consider what the position of the Defence in relation to these witnesses
10 Now, why do I say this? A number of witnesses that the
11 Prosecution seeks additional summaries for were witnesses officially from
12 their list. A number of witnesses who were on their earlier lists, with
13 a number of these witnesses, they conducted interview in relation to this
14 specific case. The Defence, in dealing with these witnesses, is in a
15 situation where they had an interview with the Prosecution which haven't
16 yet seen. And I do hope that Mr. Harmon will inform us about that today.
17 JUDGE MOLOTO: I am sorry, I am sorry, Mr. Lukic. I don't think
18 that kind of argument is acceptable at all. You have now decided to call
19 these witnesses. You have decided they are coming to tell this Court
20 certain facts. You've got to tell the Prosecution and tell the Court
21 what facts you want to elicit from them. Not the facts that the
22 Prosecution intended eliciting from them at the time when they had them
23 on their witness list. You've got to tell us what you are going to
24 elicit from them. You your not necessarily going to elicit from them
25 what the Prosecution elicited. Tell us your reasons for calling them.
1 MR. LUKIC: [Interpretation] I believe that we presented the
2 reasons. What prompts Mr. Harmon to state that this isn't sufficient is
3 the fact that he believes that he wasn't given enough information about
4 the facts to prepare for cross-examination. We believe that based on the
5 information we provided Mr. Harmon with, he has sufficient information to
6 enable him to prepare for cross-examination of these witnesses.
7 Let me make one other point that you are familiar with,
8 Your Honours. The number of witnesses of the Prosecution called here, we
9 were informed of the facts that these people would testify to shortly
10 before their appearance in the courtroom. These were proofing notes that
11 we received several hours earlier, you saw that with Mr. Selsky when we
12 were given proofing notes shortly before. We were in the same position
13 where we had to wait for the start of the examination of a witness before
14 we could receive information for cross-examination. I think we provided
15 sufficient information. I don't think we are duty-bound to provide them
16 with witness statements.
17 We believe that based on the information the Prosecution was
18 given, they are able to prepare themselves for the examination. Of
19 course we will be proofing witnesses upon their arrival here, and we do
20 have the duty to provide the Prosecution with proofing notes.
21 I've found a decision in the Dragomir Milosevic case which is
22 relevant to this issue. Bear with me, Your Honours. This is the
23 decision of the Trial Chamber of the 26th of June, 2007, on this specific
24 issue where the Trial Chamber held, under 1, that the Defence was
25 duty-bound to provide information for witnesses under Rule 65 ter list
1 [In English] "And not later than" -- the date was 2nd of July, 2007. And
2 in paragraph 2: "Further information on the expected testimony of each
3 witness as soon as possible after having spoken with the witnesses and
4 before the witness testified."
5 JUDGE MOLOTO: Do I understand you, Mr. Lukic, to be saying that
6 right through the Prosecution case you had never been provided with
7 Rule 65 ter E(ii) summaries?
8 MR. LUKIC: [Interpretation] Let me find it. No, no, no. We
9 received summaries from the Prosecution, but shortly before the witness
10 appeared in the courtroom, we would receive proofing notes with
11 completely new facts that went beyond the summaries. That's when we were
12 confronted with these issues.
13 JUDGE MOLOTO: That's an issue you take up with your colleague at
14 the point when he confronts you with a witness whose summaries he has not
15 supplied. I don't remember the Defence ever complaining about that. And
16 we are not talking here about proofing notes, we are talking here about
17 65 ter G obligations. And that's all I'm talking about. And I don't
18 that think it is important -- necessary to belabour this point, but it is
19 also important that a decision is rendered very quickly on this issue.
20 How soon can the Defence file their response to the objection by the
22 MR. LUKIC: [Interpretation] A moment, Your Honour. Mr. Guy-Smith
23 will have to take over.
24 JUDGE MOLOTO: Yes, Mr. Guy-Smith.
25 MR. GUY-SMITH: Thank you, Your Honour. That should work. I'm
1 having some difficulty in my left ear, so I'm trying to regulate the
3 With regard to the specific question that you've asked, How long
4 will it take, I need to step back for but a moment. I have your specific
5 question in mind and will respond to your specific question. It is our
6 view that based upon the requirements of the Rule 65 ter G, that we have,
7 in fact, supplied summaries of the information that those witnesses will
8 be providing. We are not under the law required to submit witnesses
9 statements. And anything that we do supply, we supply in the context.
10 And I think it's important to recognise the context of the continued
11 privilege of self-incrimination that potentially exists in any
12 proceeding. With this in mind, considering that there has been a, what I
13 would call a generic attack, and quite frankly, as far as I can tell,
14 conceptually, what I consider to be really a matter of wanting specific
15 witness statements. We are in somewhat of a conceptual bind which
16 requires -- which requires an analysis of the information --
17 JUDGE MOLOTO: I'm sorry, Mr. Guy-Smith. I'm going to interrupt
18 you. You are not answering my question specifically. My question
19 specifically, and you didn't articulate very clearly, was: How soon can
20 you respond in writing to the objection. You can put what you are saying
21 in writing. You seem to have it on --
22 MR. GUY-SMITH: Within writing, I am sorry. In writing, that can
23 be done by Tuesday.
24 JUDGE MOLOTO: Okay. Let's -- I think we'll have to do that and
25 sort that problem out and render a decision on the 65 ter G list of the
1 Defence. I'm not quite sure whether, until that has been resolved, we
2 are in a position to talk about the length of the case and the number of
3 witnesses that are to be called. I heard what you said this morning --
4 MR. GUY-SMITH: Understood.
5 JUDGE MOLOTO: Mr. Lukic, I must admit, I'm not convinced. I
6 didn't understand what you are saying. Insofar as it impacts on the
7 length of the case and the number of witnesses particularly in relation
8 to what you had indicated sometime earlier.
9 MR. GUY-SMITH: If I might, in that regard, I have reviewed the
10 transcripts, and I think that we were perhaps a bit bold in our
11 appreciation that things could be done in a shorter period of time. To
12 be of some assistance to the Court for its consideration in the future,
13 because obviously this issue is going to arise again, and I can think of,
14 for example, one particular witness and one particular set of documents
15 that exists is going to be necessary to go through each of the documents
16 that was presented by the Prosecution. It's unfortunate, but it will be
17 necessary because it deals with a critical part of this case with regard
18 to a position the Prosecution has taken in terms of the liability of our
20 That was something that I think previously we had not foreseen
21 because we did not appreciate both conceptually as well as factually that
22 kind of a situation. In large measure, Your Honour, we have, I think,
23 been not too terribly over-broad in terms of the amount of time that we
24 think is needed for the presentation of these witnesses so that you have
25 available to you a full and complete record upon which you can make a
1 determination fairly, judicially, and objectively about all the facts and
2 circumstances that surround questions that you will be presented with.
3 Most of the witnesses who are on the list are witnesses who, I think,
4 obtain important positions, who are at -- not necessarily the pinnacle
5 but certainly in the higher echelons of those institutions that will
6 directly affect your determinations.
7 Now, obviously, as time goes on, and by that I mean between now
8 and the time that you make a decision, you'll make a determination of
9 what information you deem necessary for your decision. But I can assure
10 you that this is actually, and it's curious, strange in a particular
11 fashion and doesn't seem this way, that this case is an astoundingly
12 document-heavy case. It's not self-evident from the way much of what has
13 occurred here would seem, but it is. You are going to have to grapple
14 with not only portions of but entire sessions of such things as a
15 Supreme Defence Council in order to have an appreciation, a true
16 appreciation of issues concerning a knowledge, intent, attitudes,
17 policies, and in that regard it's going to require the explication of
18 certain witnesses. So I'm saying that as a prefatory remark for purposes
19 of an understanding of why you see the time that you see, and for nothing
20 more than that.
21 JUDGE MOLOTO: I understand. The unfortunate thing, we are
22 getting into a lot of detail. Let me, sort of, point out one or two
23 things here. The calculations, as we look at the filings by the Defence,
24 are that the Defence is asking something between 249 and 311 hours of
25 direct examination. At the end of their case, the Prosecution had used
1 177 hours. Okay. Now, the practice in the Tribunal is to sort of
2 compare; and of course it's not a mathematical calculation, it's some
3 kind of proportional kind of thing. We observe also that there is a very
4 minimal use of 92 bis, 92 ter, 92 quater by the Defence. Very few. And
5 also that there is a bit of -- quite a lot of overlapping of evidence
6 amongst the witnesses.
7 And we ask you to look at that and simply because there's still
8 this motion before us, we are not going to rule on this before today, but
9 we would like you to try and look at how you think you can reduce your
10 hours, reduce your number of witnesses, quite a lot of witnesses who are
11 going to come and talk about the same topic, you know. And I am not
12 quite sure whether there is any need for that many witnesses on the same
13 topic. I'm just pointing out those --
14 MR. GUY-SMITH: We will take your comments into account during
15 this period and see what, if any, modifications we can make.
16 JUDGE MOLOTO: Okay. Right.
17 [Trial Chamber confers]
18 JUDGE MOLOTO: One last point I would like to raise with the
19 Defence, that the Chamber would be loathe to granting a very long
20 postponement pending resolutions of objections and motions on objections
21 and other things. The Chamber would like to start with the Defence case
22 as soon as possible. And some time in December, on the 5th of December
23 to be precise, the Defence, over the signature of Mr. Guy-Smith,
24 submitted a list of the initial witnesses that they intend calling to the
25 Prosecution. There are about -- about ten of them or so. Provided that
1 the summaries of these witnesses are either to the satisfaction of the
2 two parties, is there any way we can begin to hear them ASAP while we are
3 resolving other issues? Of course if the Prosecution is objecting to
4 their summaries, there's nothing we can do until we solve that motion.
5 MR. LUKIC: [Interpretation] Yes, Your Honour, our intention was
6 to start the presentation of our case, not with all of the individuals
7 from this group, but with certain individuals. In the meantime, we
8 withdrew two of the individuals from the groups. You can see that they
9 are not on the official list, so the total now is eight individuals.
10 What our intention is, in relation to the first two or three witnesses,
11 is to call -- two or three weeks, to call two or three witnesses from
12 this list. The problem is, however, that some of these individuals
13 testify in other cases. One of them has just testified in other case,
14 and I can't call him right away.
15 At any rate, our intention is that in the course of the first two
16 to three weeks of our case, to call the witnesses from the list. And
17 then should the Trial Chamber decide in the meantime that the summaries
18 in relation to these witnesses should be supplemented, then we will do
19 so. And I do agree fully with the fact that the Defence case should
20 start as soon as possible, and I informed Mr. Harmon accordingly.
21 JUDGE MOLOTO: The only thing, of course --
22 Yes, Mr. Guy-Smith.
23 MR. GUY-SMITH: I believe they have objected to all of our
24 viva voce witnesses but one, I believe. So I don't know whether or not
25 we are going to be able to obtain any traction in terms of the thoughts
1 of the Chamber in that regard because of the pending situation that we
2 are in unfortunately.
3 JUDGE MOLOTO: Okay.
4 MR. GUY-SMITH: But we will endeavour to do what we can in the
5 time allotted.
6 JUDGE MOLOTO: Thank you very much. Okay. It looks like at this
7 stage then we can only say we'll be getting your response by next Tuesday
8 and take it from there. I don't know whether the Prosecution will want
9 to reply or depend on what response they get, and the Chamber will have
10 to render its decision.
11 You seem to be ready to stand up, Mr. Harmon.
12 MR. HARMON: I have some other issues to address with the Court,
13 but I want the Court to conclude this first.
14 JUDGE MOLOTO: Okay. Thank you so much. Well, I guess that
15 concludes this part of the discussions, and we'll take it from what
16 response we receive from the Defence.
17 Yes, Mr. Lukic.
18 MR. LUKIC: [Interpretation] Your Honour, just one other technical
19 matter. We are ready, of course, to meet any decision by the Court. But
20 once such a decision is made, we only ask for a reasonable amount of time
21 to make sure that we are able to bring that witness here. Indeed I
22 cannot call the witness the very next day, and we need to prepare some
23 proofing notes. So we would at least need a general framework within
24 which we would be allowed to move.
25 And another technical matter, I suppose we will go through a
1 number of witnesses rather quickly and for some of them safe conduct will
2 be sought, I suppose the Chamber is prepared to render such decisions
3 rather quickly. I know that you cannot rule on that now, but we have to
4 keep in mind that such situations will crop up, and we will simply
5 require a couple of days before we bring such witnesses in. I don't know
6 what Mr. Harmon's position will be in such a case because he initially
7 requested two weeks before a witness appears. Hence we don't know what
8 his position will be once you say the list is now complete and the trial
9 will start as of that date.
10 JUDGE MOLOTO: You are talking logistics. Can I suggest that
11 once the Trial Chamber has rendered its decision on the objection by the
12 Prosecution, we schedule another conference, another -- a continuation of
13 this conference. Just to look at those --
14 MR. LUKIC: [Interpretation] Completely.
15 JUDGE MOLOTO: Yes, Mr. Harmon, you had other things to raise.
16 MR. HARMON: I do, Your Honour. In reviewing the Defence
17 submissions, there appear to be two persons identified as experts. I
18 would ask the Court to consider a Scheduling Order as to when those
19 expert reports need to be submitted to the Chamber and to the
20 Prosecution. Second of all, there are a number of witnesses who are
21 identified as 92 bis and 92 quater witnesses. I make the same
22 submission, I think there should be a Scheduling Order as to when those
23 motions will be submitted to the Chamber. We need to consider the
24 submissions ourselves.
25 Lastly, there is the guide-line one which was applied in our case
1 and which we applied in the course of our presentations and that is that
2 a list of witnesses and an order of witnesses be supplied to the
3 Prosecution two weeks in advance of calling the witnesses. So the
4 guide-lines which we applied, we will insist on being honoured and
5 respected as well. So those are three issues that I just put before the
6 Trial Chamber for its consideration.
7 MR. GUY-SMITH: Your Honour.
8 JUDGE MOLOTO: Yes, Mr. Guy-Smith.
9 MR. GUY-SMITH: With regard to those three issues, as I
10 understood what you had said previously, it would seem appropriate to
11 raise those matters at our next meeting rather than respond to them at
12 the very moment. I can make some quick off-the-cuff responses with
13 regard to each of the matters raised by Mr. Harmon, but I think we are
14 involving ourselves in the very kind of hearing that we were going to put
15 off until we have resolutions so we can do this all at once. But
16 whatever the Chamber desires in that regard.
17 JUDGE MOLOTO: In fact, thank you very much, you are very right,
18 Mr. Guy-Smith. I guess what Mr. Harmon was doing was just to alert the
19 Defence to the fact that you've got 92 bis and 92 quater witnesses on
20 your list, expert witnesses, and that there is a guide-line on a list of
21 witnesses two weeks in advance so that, just to say, bear that in mind.
22 So I don't think you need any -- need to respond.
23 MR. GUY-SMITH: Fine. We had these matters on our potential
24 agenda whenever we reach those issues.
25 JUDGE MOLOTO: Indeed. Thank you so much. Anything from the
1 Defence that they would like to raise?
2 MR. GUY-SMITH: I don't believe so, Your Honour.
3 JUDGE MOLOTO: Thank you.
4 MR. HARMON: Nothing further, Your Honours.
5 JUDGE MOLOTO: Well, it doesn't look like we can adjourn to a
6 specific date.
7 MR. GUY-SMITH: Does not seem as if we can.
8 JUDGE MOLOTO: Okay. Well, the Court stands adjourned to a date
9 to be determined. Court adjourned.
10 --- Whereupon the hearing adjourned at 9.43 a.m.