Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9823

 1                           Wednesday, 10 February 2010

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.20 p.m.

 5             JUDGE MOLOTO:  Good afternoon to everybody in and around the

 6     courtroom.  Mr. Registrar will you please call the case.

 7             THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon to

 8     be everyone in and around the courtroom.  This is case number IT-04-81-T,

 9     the Prosecutor versus Momcilo Perisic.

10             JUDGE MOLOTO:  Thank you so much.  Could we have the appearances

11     for the day starting with the Prosecution, please.

12             MR. HARMON:  Good afternoon, Your Honours.  Good afternoon,

13     counsel.  Mark Harmon, Dan Saxon, Barney Thomas, and Carmela Javier for

14     the Prosecution.

15             JUDGE MOLOTO:  Thank you so much.  And for the Defence.

16             MR. LUKIC: [Interpretation] Good afternoon, Your Honours.  Good

17     afternoon to everyone taking part in the proceedings.  Mr. Perisic is

18     represented today by our assistant Tina Drolec, Chad Mair, and

19     Boris Zorko, including Mr. Gregor Guy-Smith and Novak Lukic.

20             JUDGE MOLOTO:  Thank you very much, Mr. Lukic.  Today the Chamber

21     sits pursuant to Rule 15 bis due to the absence of Judge David.

22             The present hearing was scheduled as a continuation of the

23     pre-Defence conference which was held on the 29th of January 2010.  The

24     Trial Chamber notes that a 65 ter meeting was held on the 8th of February

25     2010 between the senior legal officer and the parties in preparation for

Page 9824

 1     today's hearing.  The Trial Chamber has been briefed on the main topics

 2     discussed during that meeting.

 3             As a preliminary matter, the Trial Chamber recalls that the

 4     pre-Defence conference is governed by Rule 73 ter, which provides that

 5     the Trial Chamber "may call upon the Defence to shorten the estimated

 6     length of the examination-in-chief for some witnesses."

 7             The rule also authorises the Trial Chamber after having heard the

 8     Defence to set the number of witnesses the Defence may call and determine

 9     the time available to the Defence representing evidence.  We will get to

10     that later, but for now I'd like to move to other items of the agenda.

11             First of all the 65 ter summaries.  The Trial Chamber notes that

12     on the 5th of February, 2010, the Defence filed the supplemental

13     summaries of seven witnesses in compliance with the Chamber's decision of

14     the 3rd of February, 2010.  These witnesses were listed in an e-mail

15     which the Defence had sent to the Prosecution and the Chamber on the 5th

16     of December, 2009.  As for the remaining Rule 65 ter (G) summaries, the

17     Trial Chamber urges the Defence to file the Prosecution with the

18     remaining supplemental summaries within an adequate time as ordered in

19     the decision of the 3rd February, 2010, at the latest the supplemental

20     summary for each remaining witness should be provided two weeks before

21     each witness is scheduled to testify.

22             Are there any comments?  Yes, Mr. Guy-Smith.

23             MR. GUY-SMITH:  That is understood, Your Honour.  We will be

24     abiding by the Court's decision.

25             JUDGE MOLOTO:  Thank you so much, Mr. Guy-Smith.  I don't think

Page 9825

 1     there's any comment from the Prosecution, or is there any?

 2             MR. HARMON:  I did make some comments, Your Honour, at the

 3     conference with the legal officer in respect of the ten summaries.  I

 4     don't know if the Court wishes me to address those issues now or if the

 5     Court is going to a different item on the agenda, then I would address --

 6     direct some remarks towards the summaries.

 7             JUDGE MOLOTO:  Please do.

 8             MR. HARMON:  Your Honour, it was our understanding that we would

 9     receive the witness summaries of the first ten witnesses to be called.  I

10     was informed at the conference with the senior legal officer that the

11     summaries, the identities of ten witnesses, has been changed.  I was

12     informed of that by an e-mail that at least two of those witnesses had

13     been dropped.  The summaries of the seven witnesses that we received were

14     adequate.  I have been informed that there is an additional witness so

15     the total would be eight witnesses for whom we have received summaries.

16     However, I have been informed that those are not the first eight

17     witnesses or the first ten witnesses to be called.  It was my

18     understanding when the Trial Chamber directed the Defence to provide to

19     the Prosecution the summaries of ten witnesses, it was the intention of

20     the Trial Chamber, at least this was my understanding, that we would

21     receive those in order to prepare and be able to prepare adequately for

22     the first ten witnesses, and thereafter we could get additional summaries

23     seriatim.  What I am told now and what I was told is that the summaries

24     that we've been provided aren't the first ten witnesses.

25             I expressed to the senior legal officer and I reiterate here,

Page 9826

 1     Your Honours, we would request that we be provided with the witness

 2     summaries for the first ten witnesses who are to be called by the

 3     Defence.  We normally, under the rule, the rule requires that the

 4     summaries be provided before the commencement of the Defence case.  We

 5     have accepted the propositions that the compromises, if you will, that

 6     have been made, but it has been based on the understanding that we will

 7     have the first -- summaries of the first ten witnesses.  To now find

 8     ourselves in a position where we have been informed of the first four

 9     witnesses and thereafter we will get the summaries on a two-week basis, I

10     don't think comports with the spirit or the intent of the previous

11     discussion that we had in this court about the disclosure of the first

12     ten witnesses.

13             So we would reiterate our request, Your Honour, that we be

14     provided with the summaries of the first ten witnesses to be called.

15     That's my submission, Your Honour.

16             JUDGE MOLOTO:  Any comments on that, Mr. Lukic?

17             MR. LUKIC: [Interpretation] We already made some comment at the

18     meeting according to Rule 65 ter.  Although through our correspondence

19     with the OTP we have realised that our ten witness list are treating as

20     the list of the first ten witnesses to appear here, we have analysed in

21     detail the transcript from the meeting when you ruled for us to submit

22     the ten witness list on the 5th of December, and at that time we did not

23     find any detailed instruction for that to be the initial ten witnesses.

24     In spite of that recognizes the desire of the OTP and after we have

25     submitted the list on the 5th of December, we contacted those witnesses

Page 9827

 1     in order to make it sure that they would really be the first ten

 2     witnesses to appear in this trial.

 3             At one point some of them told that it would have been possible

 4     had we started on the 25th of January, and in some other cases, we were

 5     not able to provide all the witnesses from that list in that order.  The

 6     OTP is for sure understandable that we need a broader plan of bringing

 7     witnesses to the court.  You yourselves were witness to the situation

 8     that we were not able to bring -- that we are not able to bring witnesses

 9     whenever it's needed.  So I cannot guarantee the exact order of these

10     first two witnesses appearing -- ten witnesses appearing in court.

11             One thing is what I would like to see, but we need some logistic

12     measures in order to secure that.  You have seen from this list that

13     these witnesses are not the ones who will stay here for a short period of

14     time.  Each of them will need to be at least a couple of days or a few

15     days in the courtroom.  Under such circumstances, we are requested to

16     provide a schedule for a month of the proceedings.  We can give you a

17     framework time-period, but we cannot guarantee the order of the

18     appearances of witnesses.

19             JUDGE MOLOTO:  Mr. Lukic, I don't understand what you are saying.

20     Obviously in terms of the rule, before Defence commences its Defence

21     case, it is supposed to provide summaries of all witnesses that you are

22     supposed -- you intend to call.  Okay.  Because of pressure, work, the

23     Defence said they were not able to give all of them, and, of course, then

24     the question was give the first few that you are going to start with.

25             The whole discussion around first ten witnesses could never have

Page 9828

 1     been any ten witnesses.  We were not asking you to give the list of ten

 2     witnesses that you intend to call in July.  We were asking you to give

 3     the list of ten witnesses that you are going to start the trial with.  So

 4     that the Prosecution can be ready to prepare the cross-examination of

 5     those ten.  In what order you call the ten, that's not important.  That's

 6     your choice.  But that these first names that you provide are the names

 7     that you are going to call at the beginning of the trial.

 8             You couldn't give a list of ten witnesses and then call 11th

 9     witness as a first witness whose summary you have not yet provided.

10             MR. LUKIC: [Interpretation] No, we wouldn't do that.  Absolutely.

11             JUDGE MOLOTO:  So to suggest that you studied the transcript of

12     the 5th of February and you didn't find anywhere where I said these are

13     going to be the first ten witnesses is preposterous, to say the least.

14             MR. LUKIC: [Interpretation] Your Honour, when we received the

15     letter from the OTP we understand them to expect those to be the first

16     ten witnesses.  At that point we wanted to fulfill this obligation and

17     that was on the 5th of December when we thought that the trial would

18     start on the 25th of January.  We contacted the witnesses and the first

19     four and another four told us first that they were able to come and later

20     on they said they wouldn't be able to come.  One of those witnesses is at

21     the moment testifying in another case.  He didn't know that he would be

22     coming to testify in another case.  What we would like to abide by and

23     what we would like to secure is to ensure for the OTP to have the same

24     space of time as we did, which is 15 days before we have witnesses in the

25     court, the full summary and the full schedule.  From the beginning of the

Page 9829

 1     OTP case, we didn't get a schedule for a month.  We only got it for the

 2     first two weeks.  We wanted to do the same on the 5th of December.

 3             Ands now, with this list that we have provided with the names of

 4     four witnesses which will take more than two weeks of trials, we would

 5     like to provide a schedule that would be suitable for the OTP.  If the

 6     OTP and the Judges are asking us to provide a schedule for the next

 7     month, I cannot guarantee that, but I will do my best to prepare such a

 8     list so that I can have a full list on Monday.

 9             JUDGE MOLOTO:  I'm not asking you for a schedule for the next

10     month.  You have been asked of a schedule of the first ten witnesses.  I

11     understand that you don't have the full ten.  I understand that you've

12     given summaries of seven, apparently you have an eighth, I understand

13     that from those eight you probably have four that you can start with.

14     Okay.

15             Now, I really would like to get this trial going, and I would

16     like to understand from you, Mr. Lukic, that if you start on the date

17     when we start here in the case, are you going to be able to make sure

18     that each witness who comes to testify, you will have provided the

19     Prosecution with the summary of that witness two weeks in advance?

20             MR. LUKIC: [Interpretation] Certainly.  Absolutely.

21             JUDGE MOLOTO:  And the next point that was raised by Mr. Harmon,

22     which I would like to get clarity from you about is that, of the eight or

23     seven witnesses whose names you have provided, these are going to be your

24     first witnesses, because these are the witnesses for whom they have

25     summaries.  In what order it doesn't matter, but those the first

Page 9830

 1     witnesses.

 2             MR. LUKIC: [Interpretation] I understand your instruction and

 3     your questions.  Of the remaining four witnesses, I cannot make sure that

 4     they will be here after the first two weeks of trial.  Maybe I can bring

 5     other witnesses and then provide summaries for the OTP immediately.  I

 6     simply talked to the witnesses who said at this moment they are not

 7     available.  I want to have continuity as you do, I'm sure, and on Monday

 8     I want to provide with the OTP with a list of four witnesses who will

 9     definitely be here, and they will have more than two weeks to review

10     their summary.  I don't believe that the situation is as dramatic as it

11     is thought to be.

12             JUDGE MOLOTO:  So you will have four witnesses that you are going

13     to start with and for two weeks that will be keeping us busy.  Thank you

14     very much, Mr. Harmon, you have something?

15             MR. HARMON:  Yes, I do.  Your Honour, that doesn't address the

16     issue that was raised by me, and that is, the OTP was expecting summaries

17     for the first ten witnesses.  That's what we understood to be the case.

18     Mr. Lukic says that he wants to ensure the same space of time that they

19     had.  That's a quotation from Mr. Lukic.  The space of time that they had

20     was they received the total -- our complete 65 ter summaries months

21     before the commencement of the case.  There is no way that the current

22     proposed schedule by Mr. Lukic comes anywhere close to the same space of

23     time that they had.

24             We have a diminished space of time.  Considerably diminished.

25     Had they been prepared, we would have received their complete 65 ter

Page 9831

 1     package which would have had the summary -- the factual summaries of each

 2     witness identified in their submission, as well as a list of exhibits.

 3     What we don't have, what we have now is a proposition put to the Court

 4     that the Defence -- the search is satisfactory to us, which it is not,

 5     And that we have summaries for four of the witnesses that they intend to

 6     call at the beginning.  The remaining factual summaries are summaries of

 7     witnesses they may call who knows when.  And by this time, since on the

 8     5th of December, or approximately that date, they were able to identify

 9     what at the time they thought were the first ten witnesses.  Time has

10     passed, we are now on the 8th of February.  They have had time to refine

11     their thinking and their analysis and their contacts with the witnesses,

12     surely they must be able to identify the first ten witnesses they intend

13     to call.  And it is the complete factual summaries of those ten witnesses

14     that we are insisting upon.

15             So when the assertion is made that they want the same treatment

16     that they received from the Prosecution, I need to underscore that it's

17     not even close.

18             JUDGE MOLOTO:  I understand that, Mr. Harmon.

19             MR. HARMON:  So our request, again, Your Honour, is we have the

20     summaries of the four witnesses.  We acknowledge that.  But we would like

21     the summaries of the six remaining witnesses they intend to call.  What

22     order they are, as Your Honour has said, they can tell us in due course,

23     because we have considerable amount of work which we could have embarked

24     upon.  Had we had the complete list of the factual summaries now, we

25     could be working on significant number of witnesses.  We, at this point,

Page 9832

 1     are delayed from our work because we have -- and forced into a two-week

 2     hole where we have to do a lot of work in order to properly prepare.

 3             So ten witnesses at least gives us a little breathing space in

 4     which to prepare for those witnesses.  So again, Your Honour, with -- I

 5     respectfully request that we be provided with the factual summaries of

 6     ten witnesses, the first ten witnesses they intend to call.

 7             MR. GUY-SMITH:  If I might, Your Honour.

 8             JUDGE MOLOTO:  Yes, Mr. Guy-Smith.

 9             MR. GUY-SMITH:  This conversation commenced with a discussion

10     with regard to decisions this Chamber had issued.  And we indicated that

11     we would abide by that decision.  And we will abide by that decision.

12     And we continue to warrant and undertake that we will abide by that

13     decision.  I have listened to the remarks made by Mr. Harmon, and I will

14     not plough over old ground because this has been a discussion that has

15     gone on for some period of time with regard to December 5th, close of the

16     Prosecution case, and a series of other issues because there are many

17     things that are involved with regard to this particular matter.

18             However, from what I can understand, what is really being done

19     here is that Mr. Harmon is asking you to reconsider the decision that

20     you've already entered.  And if that is what he is doing, then that's

21     what he should ask for, and we should proceed along that basis.  But

22     since we had already indicated that we would abide by the decision, I

23     think it is inappropriate at this time for us to be dealing with the

24     issue of the reconsideration of the decision.

25             I also would make another remark, which is --

Page 9833

 1             JUDGE MOLOTO:  Before you make another remark, I'm not absolutely

 2     with you when you say Mr. Harmon is asking for a reconsideration of the

 3     decision.  And I'm not quite sure which decision you are talking about.

 4     Is it not so that the Defence was supposed to have provided the

 5     Prosecution with a list of ten witnesses?

 6             MR. GUY-SMITH:  The answer to that question is yes.  However,

 7     after -- after that discussion, there has clearly been -- it has been

 8     raised repeatedly in a number of different fashions.  Some very clear

 9     miscommunication as between the parties with regard it to what the

10     significance was of those ten, and I don't really wish to go over those

11     grounds because I, quite frankly, don't think there's any particular

12     merit in doing so.

13             JUDGE MOLOTO:  I also don't want to do that, but I just want to

14     ask you one question, when can you give the summaries of the remaining

15     six to make up the first ten?

16             MR. GUY-SMITH:  My answer to that right now is not an avoidance.

17     In short order.  But that is the best that I can do for the moment.  In

18     short order.  But that's the best that I can do at this very moment.

19             JUDGE MOLOTO:  I don't understand what you mean, sir.  It's not

20     an avoidance, in short order.  What do you mean?

21             MR. GUY-SMITH:  They have presently seven witnesses available.

22     Four witnesses they have been told about.  The minute this trial starts,

23     we hit the ground running, and we have four witnesses to go.  That's how

24     we commence.  That leaves us with the balance of which they already have

25     three -- they have the names and the summaries of three.

Page 9834

 1             JUDGE MOLOTO:  When can they have the other three?

 2                           [Trial Chamber confers]

 3             MR. GUY-SMITH:  They also have, based on the information

 4     previously given to them, another 12 summaries which they have not

 5     objected to that are available.  And above and beyond that, I would like

 6     to take a moment and say, and make another comment.  None of the

 7     attorneys who are in this room are inexperienced.  None of the witnesses

 8     that are on our witness list are unknown to the Prosecution.  And part of

 9     what has occurred here, part of what has occurred here is there is this

10     seeming bar that has been asserted by the Prosecution to them being able

11     to do any work whatsoever with regard to those witnesses.  I understand

12     and appreciate some of the arguments and the decision that was made with

13     regard to the specific issue of the summaries themselves.  But I think

14     that it is exceedingly disingenuous for anybody in this room to suggest,

15     based on the witnesses who are on the list, whether one believes that our

16     summaries are sufficient or not, it is exceedingly disingenuous for the

17     Prosecution to take the position that they cannot be work and working a

18     pace with regard to these witnesses.  They know who these people are.

19     Now, that doesn't necessarily settle --

20             JUDGE MOLOTO:  Mr. Guy-Smith, I am sorry, I'm not going to allow

21     that kind of argument to proceed.  That is not the issue.  It's not the

22     issue whether they know or they don't know the witnesses.  It's not an

23     issue whether they are experienced or inexperienced witnesses.  The issue

24     is that they must -- they want to protects their rights.  But according

25     to the rules, you are supposed to have provided them with a complete

Page 9835

 1     comprehensive list of witnesses with summaries on the factual basis.  You

 2     have not done so.

 3             MR. GUY-SMITH:  Understood.

 4             JUDGE MOLOTO:  We are trying to meet them halfway in a situation

 5     where the Defence has not complied with what its supposed to do under the

 6     rules.  And we trying to say we want to get this trial started, and what

 7     is the minimum that you can give to the Prosecution to get the case

 8     started?

 9             MR. GUY-SMITH:  And the situation we are in are as follows, Your

10     Honour:  They have the first four, and they have an additional three.

11     That leaves us with a balance of three.

12             JUDGE MOLOTO:  And I'm asking you -- I'm asking you the question

13     when can they have the next three?  You just give me a date.

14             MR. GUY-SMITH:  I will.  Give me a moment.

15                           [Defence counsel confer]

16             MR. GUY-SMITH:  The additional three can be given to them by

17     Monday.

18             JUDGE MOLOTO:  Thank you.

19             Mr. Harmon, you probably will have the first ten witnesses

20     complete by Monday.  Is that okay?

21             MR. HARMON:  Thank you, Your Honour.

22             JUDGE MOLOTO:  Thank you so much.

23             Can we then --

24             MR. GUY-SMITH:  Excuse me.  There's a miscommunication again, and

25     that -- it needs to be resolved.

Page 9836

 1             JUDGE MOLOTO:  What is the miscommunication, sir?

 2             MR. GUY-SMITH:  Mr. Lukic will explain the miscommunication.

 3             JUDGE MOLOTO:  Yes, Mr. Lukic.

 4             MR. LUKIC: [Interpretation] Everything -- all that Mr. Harmon

 5     wants is very precise here, and he wants the first ten witnesses

 6     regardless of their order of appearance, although he already has a clear

 7     picture of who the first four witnesses will be.  Now, if I understood

 8     Mr. Harmon, that is what he wants us to provide.

 9             Now, we have provided a list to the OTP with seven witnesses, and

10     I have no problem at all with bringing those seven -- if I had no

11     problems with these seven witnesses to bring them over this time, we

12     wouldn't even be having this conversation.  However, of those seven, we

13     were only able to ensure the appearance of four of them.

14             Now, if you want us to provide you with a list of the remaining

15     six witnesses so that the total number would be ten, we can meet that

16     requirement; but as I've said earlier, we cannot ensure that those ten

17     witnesses will actually appear here in the first month, in the first

18     30 days.  But I have to say again that these witnesses will take -- their

19     testimony will take over a couple of days, many of them, so that, in

20     fact, we will have abided by our obligation, which is the following:  We

21     can provide until Monday a provisional list of ten witnesses and their

22     summaries, but I cannot guarantee that all those ten will actually come,

23     and if some of them actually cannot appear here, then all I'm asking is

24     to have -- for the Trial Chamber to have understanding for our position.

25             JUDGE MOLOTO:  Mr. Lukic, it is the intention of the Defence to

Page 9837

 1     call the Defence witnesses in as ordinary a fashion as possible,

 2     unforeseen circumstances barring.  Now, you have the first four witnesses

 3     that you say are going to keep us busy for a certain time.  In that time,

 4     starting from today and during the time that we will be hearing the first

 5     four witness, I want to believe that your team will be working on getting

 6     subsequent witnesses ready to come.

 7             MR. LUKIC: [Interpretation] Certainly, certainly, Your Honour.

 8             JUDGE MOLOTO:  Why you keep saying you don't know that you can

 9     bring the first ten witnesses in the first month?  I don't understand

10     what you are saying because all you need to do, sir, is that as we are

11     hearing the case here, your team in the background is arranging to get

12     the next witnesses in line, okay.  And of course when you meet

13     difficulties, you tell the Court, We have difficulties.  And we'll deal

14     with the difficulty at that stage.  So could you please just tell this

15     Court that you are going to call your ten witnesses in as ordinarily a

16     fashion as the circumstances allow.  That's it.  That's all we are asking

17     for, sir.  And don't try to pre-empt us now by saying we are going to

18     have difficulties, we are not going to have this one --

19             MR. LUKIC: [Interpretation] No, no, no, I'm not trying to do

20     that.

21             JUDGE MOLOTO:  All right, then I think that argument -- then

22     let's pretend it never took place.

23             MR. LUKIC: [Interpretation] Not at all, I fully understand what

24     you've said, and I completely stand by that, and by what I've said

25     earlier, we will abide by all your orders.

Page 9838

 1             JUDGE MOLOTO:  Fine.  Then there was no miscommunication, thank

 2     you so much.  Can we move on to the next item.

 3             Yes, Mr. Harmon.

 4             MR. HARMON:  Sorry, Your Honour.

 5             Since there is a history of miscommunication on this particular

 6     issue, I want to summarise and be perfectly clear what it is that we will

 7     receive on Monday.  Mr. Lukic says that we will receive a list of the

 8     remaining six witnesses.  So we have identified four witnesses who are

 9     going to testify, and we have received the summaries of four.  I am

10     assuming that these six witnesses include some of the summaries we have

11     already received, and if I'm wrong, Mr. Lukic can correct me, and for

12     those that are for whom we have no summaries, we will receive additional

13     summaries.  So we will have a total of ten witness summaries.

14             JUDGE MOLOTO:  Mr. Harmon, it looks like you have either

15     misheard, or there is indeed a miscommunication.  You have summaries of

16     seven witnesses.

17             MR. HARMON:  That's correct.

18             JUDGE MOLOTO:  Right.  Now, as the Chamber tried to clear it with

19     the Defence, those are the first seven witnesses that they are going to

20     call.  That's why they gave them first.

21             MR. HARMON:  Fine.

22             JUDGE MOLOTO:  That's right.  Now, there are three outstanding to

23     make a number ten.

24             MR. HARMON:  I understand, Your Honours.

25             JUDGE MOLOTO:  You will get the summaries of three witnesses by

Page 9839

 1     Monday.

 2             MR. HARMON:  That's fine.

 3             JUDGE MOLOTO:  That's the communication.

 4             MR. HARMON:  Then, I understand, Your Honour, and I wanted to be

 5     perfectly clear on the record.

 6             JUDGE MOLOTO:  Thank you so much.

 7                           [Trial Chamber confers]

 8             JUDGE MOLOTO: [Microphone not activated] I hope we have closed

 9     this discussion.  I see you shaking your head, Mr. Lukic.

10             MR. LUKIC: [Interpretation] Your Honour, I don't want to add to

11     the misunderstanding or to be criticised.  As I said before, if I had

12     been able to ensure that these seven people appear here, I would have

13     done it.  However, three of them are unable to do so, and I will do my

14     best --

15             JUDGE MOLOTO:  Mr. Lukic, you are going to be working on getting

16     who you can get, isn't it so?  Are you suggesting that in the next seven,

17     eight weeks, there is no way that the other three can come?

18             MR. LUKIC: [Interpretation] No, no, Your Honour.  We do not -- we

19     have a miscommunication somewhere.  Mr. Harmon wants to have the list of

20     first ten witnesses, the first ten witnesses that will appear.  Of those

21     seven, three I cannot bring in this period.  But, we will provide the

22     summaries for the six remaining witnesses in this first period.

23             JUDGE MOLOTO:  How long is that period, sir?  What are you

24     talking about when you say this period?

25             MR. LUKIC: [Interpretation] A month.

Page 9840

 1             JUDGE MOLOTO:  They are not available for the whole month?

 2             MR. LUKIC: [Interpretation] No, I don't know why we are not

 3     understanding each other.  Obviously I'm not being clear.

 4             JUDGE MOLOTO:  I'm asking the question, are you saying these

 5     three, there is just no way they are available in this month?  In a

 6     month?

 7             MR. LUKIC: [Interpretation] That's right.  That is correct.  And

 8     because they are a problem, I am trying to find other witnesses who will

 9     appear in their place, and I will provide the Prosecution with a list of

10     six names with the summaries who will appear afterwards, so that, in

11     fact, they will have 13 summaries in total as opposed to the ten that

12     were required.

13             JUDGE MOLOTO:  Tell me, sir, when can these three be available?

14     The three that are not able to come to court in the first month, when can

15     they come to court?

16             MR. LUKIC: [Interpretation] I think probably in the latter part

17     of March.  The second half of March.  That's what two of them confirmed.

18     But there is a third person that I haven't been able to discuss this

19     with.

20             JUDGE MOLOTO:  Are you then able, including the three whose

21     summaries you are going to give by Monday, are you able with those three

22     and the first four, to occupy us and keep us busy while you are

23     scheduling the other three that are --

24             MR. LUKIC: [Interpretation] [Overlapping speakers] ... yes.

25             JUDGE MOLOTO:  Then go ahead and do that.  That's why I say,

Page 9841

 1     difficulties taken into account, you will give us witnesses.  Fine.

 2             MR. LUKIC: [Interpretation] Yes.

 3             JUDGE MOLOTO:  If you don't have a witness, you don't have a

 4     witness, there's nothing we can do about it.

 5             MR. LUKIC: [Interpretation] I hope that finally we are on the

 6     same page.

 7             JUDGE MOLOTO:  I don't think you are on the same page as

 8     Mr. Harmon.

 9             MR. HARMON:  Well, I'm trying to avoid any possible

10     miscommunication because I've heard a couple of things.  Mr. Lukic has

11     said that he would provide a provisional list on Monday of the first ten

12     witnesses who would be called, okay.

13             JUDGE MOLOTO:  Three of whom are not available this month.

14             MR. HARMON:  Then there are three who aren't available, but we

15     would receive a provisional list of ten people, that doesn't include the

16     three who are unavailable.  On the provisional list that we will receive

17     on Monday, we will receive factual summaries for the new additions of

18     people for whom we don't have a summary.  So to wrap this up, on Monday,

19     we will have factual summaries for the first ten witnesses the Defence

20     proposes to call.  I think -- that is my understanding.

21             JUDGE MOLOTO: [Microphone not activated] That is barring the fact

22     that those -- the three are unavailable to be available in the first --

23             THE INTERPRETER:  Microphone, Your Honour.

24             MR. HARMON:  Your Honour, the three who aren't able to come, we

25     have summaries for already.

Page 9842

 1             JUDGE MOLOTO:  Fair enough.

 2             MR. HARMON:  Those people are being put aside.  What we will have

 3     on Monday is a list of ten people, separate and apart from the three who

 4     can't come, and those ten people, we will have summaries for those ten

 5     people.  That is my understanding, and I think Mr. Lukic is shaking his

 6     head yes.

 7             JUDGE MOLOTO:  When he talked about giving you 13, yes, that's

 8     how I understood him.  The number 13, that's what I understand.  So he is

 9     going to give you six, instead of three.  I asked him for three.  He is

10     binding himself to giving you six, which six plus the seven makes 13.

11     From that 13, subtract the three that are not able to come, then you have

12     ten.

13             MR. HARMON:  Then there's no room for misunderstanding,

14     Your Honour.

15             JUDGE MOLOTO:  That's how I understood.

16             MR. HARMON:  I see he Mr. Lukic shaking his head, I'm shaking my

17     head, we agree.

18             JUDGE MOLOTO:  He is nodding for the first time, at least he is

19     not shaking it.  Thank you so much.

20             I hope we can close that item on that note, and just to make sure

21     that we are all clear, we finalise it by saying the Defence is ordered to

22     provide factual summaries of an extra six witnesses to the Prosecution by

23     Monday.  And from the total of those 13, the Defence intends to call the

24     first ten witnesses.  That's it.

25             We now go to the order of calling witnesses as the next item.  It

Page 9843

 1     looks, in fact, like we have already dealt with this issue.  We will jump

 2     that one then and go to the next item which is the commencement of the

 3     Defence case.

 4             The Trial Chamber understands that the Defence would need between

 5     seven to ten days to be able to finalise all practical arrangements

 6     related to the calling of the first witnesses.  Considering that the

 7     Prosecution should also be given a reasonable time for the preparation of

 8     the cross-examination of those witnesses, the Trial Chamber intends to

 9     decide as follows, and I say intends because I want to throw this to you

10     and we can talk about it and we can make the decision.  One, that the

11     Defence should start its opening statements on Wednesday, the 17th of

12     February.  Two, that the Defence should start the presentation of its

13     evidence by calling its first witness on Monday, the 22nd of February.

14             Are there any comments?  Let's start with you, the Defence.

15             MR. LUKIC: [Interpretation] If we can say what our opinion on

16     this would be is we would propose that the opening statement be on the

17     22nd and that the first witness be called on the 23rd.  But if you insist

18     on the days that you have provided, we will abide by that.  And in any

19     case, I have already talked to the witness who is to appear first, and he

20     will be in the courtroom, he is available for the 22nd or the 23rd.

21     Either way.  But we do have a reason why we would like our opening

22     statement to be on Monday, the 22nd, and then to have the first witness

23     appear on the next day on Tuesday, the 23rd.

24             JUDGE MOLOTO:  Mr. Lukic, you have indicated that your first

25     witness will be in court on the 22nd, and that is the day you would like

Page 9844

 1     to deal with the opening statements.  And you are not a little later

 2     after your opening statement going to say suddenly your witness is

 3     unavailable to The Hague.

 4             MR. LUKIC: [Interpretation] No, no.

 5             JUDGE MOLOTO:  Because he was -- he could have appeared on the

 6     22nd, he is no longer available on the 23rd, you are not going to say

 7     that.

 8             MR. LUKIC: [Interpretation] No, well, I hope you do not doubt our

 9     desire, our honest desire to bring this witness.

10             JUDGE MOLOTO:  I do not doubt, but you have so many a problems

11     that I want to be sure that we try to pre-empt as many problems as

12     possible.

13             MR. LUKIC: [Interpretation] No, no, I don't even want to mention

14     the word problem.  So we do want to resolve all these problems so that we

15     can start with the Defence case when you so decide.

16             JUDGE MOLOTO:  Thank you.  Mr. Harmon, do you have any comments

17     on these dates?

18             MR. HARMON:  We have no comments on the dates you propose,

19     Your Honour, nor the dates that the Defence proposes.

20             JUDGE MOLOTO:  Thank you so much.  We will then accommodate you,

21     Mr. Lukic.  We will start opening statements on the 22nd of February, and

22     you will call your first witness on the 23rd.  Or on the 22nd if your

23     opening statement takes five minutes or something like that.

24             Okay.  That then disposes of that item.  We now come to the time

25     available for presenting Defence evidence and the number of witnesses.

Page 9845

 1     As you recall at the beginning of this hearing Rule 73 ter provides that

 2     after having heard the Defence, the Trial Chamber shall determine how

 3     many witnesses the Defence may call and how much time will be available

 4     to the Defence to present their evidence.  The Trial Chamber notes that a

 5     principle of basic proportionality, rather than a strict mathematical

 6     equality, generally applies to allotment of time and witnesses to the

 7     parties.

 8             The Trial Chamber gave particular weight to the fact that the

 9     Prosecution effectively used 177 hours for its case.  Based on the

10     available summaries, the Chamber notes that there are areas of

11     overlapping among the potential testimonies of their witnesses, we've

12     mentioned this before, and the Trial Chamber is of the view that it would

13     seem reasonable to allocate the Defence for the presentation of its

14     evidence an amount of time in the region of about 180 hours.  Okay.  And

15     the Trial Chamber decides not to cut down your number of witnesses.  If

16     you call all 61, you shall put them into those 180 hours.

17             Now, at the hearing on the 29th of January, 2010, the

18     Trial Chamber invited the Defence to look at ways in which the proposed

19     time estimated for the Defence can be reduced.  The Defence -- has the

20     Defence anything to add to what it already stated during that last

21     hearing, or even what we have just said now on the question of 180 hours?

22             MR. GUY-SMITH:  Taking into account what the Chamber has just

23     suggested, we have gone through our witnesses and presently believe that

24     we may well be in the position to change a number of the viva voce

25     witnesses to 92 ter witnesses, thereby, as we look at it, substantially -

Page 9846

 1     well, I don't want to use the substantially yet because it's an awfully

 2     big word - to reducing the period of time that would take for that

 3     presentation.  And we have taken -- taking into account what the Chamber

 4     has just said, we believe that we will be able to present the Defence

 5     case within that period of time, understanding give or take a couple of

 6     hours one way or the other, we will be able to work within that

 7     time-frame.

 8             JUDGE MOLOTO:  Thank you very much, Mr. Guy-Smith.

 9             Any comments from the Prosecution?

10             MR. HARMON:  No, Your Honour.

11             JUDGE MOLOTO:  Thank you so much, Mr. Harmon.

12             The Trial Chamber also notes that the Defence intends to call

13     some two expert witnesses and deems it important that a dead-line be set

14     for the disclosure of the reports of those witnesses to the Prosecution.

15     And do you have any comments to make, Mr. Guy-Smith?  I see you are on

16     your feet.

17             MR. GUY-SMITH:  Yes, I am, and thank you, Your Honour.  With

18     regard to the two expert reports, after discussions with both of the

19     experts as well as the fact they have but recently been forwarded new

20     information that need be considered, we would suggest that both expert

21     reports be filed on the 20th of April as being the dead-line for those

22     reports te be filed.

23             JUDGE MOLOTO:  You couldn't make it the 16th?

24             MR. GUY-SMITH:  16th of April.  Absolutely.

25             JUDGE MOLOTO:  Absolutely?  Let's make it the 16th.  That's what

Page 9847

 1     the Chamber had in mind.

 2             MR. GUY-SMITH:  I see we were in striking distance at least.

 3             JUDGE MOLOTO:  That's right.  If we can work that way right

 4     through, we'll move faster.

 5             Mr. Harmon, I don't think you have anything here.

 6             MR. HARMON:  I have nothing to add, Your Honour.

 7             JUDGE MOLOTO:  Thank you so much.  I just note the dead-line of

 8     the 16th of April for the expert reports.

 9             Now, you have already indicated, Mr. Guy-Smith, that you will

10     look further at the possible further use of 92 bis, ter, quater,

11     quinquies, et cetera, et cetera.  I think we also need to set some little

12     dead-line for your motions or the disclosure of both the 92 bis and

13     quater motions, and then the Chamber has a date in mind which he would

14     like to put.  I'll throw it at you, and you can respond now that you are

15     on your feet, 22nd of March?

16             MR. GUY-SMITH:  That would be fine.

17             JUDGE MOLOTO:  Fine, that is the next dead-line for the

18     92 motions.

19             Now, the Chamber does understand, Mr. Guy-Smith, that the Defence

20     is still going to look further to find out whether they can still use the

21     Rule 92 to shorten their case further.  To the extent that the Defence

22     may find an opportunity to use 92, yes, the Chamber will be prepared to

23     look, to relook at the dead-line.  The dead-line of the 22nd is based on

24     the 92 bis and ter that you have promised so far.

25             MR. GUY-SMITH:  That is understood.

Page 9848

 1             JUDGE MOLOTO:  That is understood.  Thank you so much.

 2             MR. GUY-SMITH:  And if I might comment, because I think it may

 3     segue into the issue of forthcoming Defence motion, we have in draft and

 4     hope to be able to present to the Prosecution early next week, a number

 5     of what we would suggest are agreed facts, which would, if accepted,

 6     shorten the matter, and if not, then we will deal with that issue.  And

 7     we also have a motion with regard to adjudicated facts that we will

 8     presenting to the Chamber, probably once again next week, which we belive

 9     also would assist in shortening aspects of trial.

10             JUDGE MOLOTO:  We'll see what happens.  Thank you so much.

11             The Trial Chamber has been informed that the Defence intends to

12     file requests for safe conduct for some of the scheduled witnesses and

13     might consider filing motions for witnesses to be heard via videolink due

14     to the inability to travel to The Hague.  Is this information correct.

15             MR. GUY-SMITH:  That information is correct, Your Honour.  And as

16     a matter of fact today we filed a motion for safe conduct with regard to

17     three witnesses.

18             JUDGE MOLOTO:  Thank you so much.

19             MR. GUY-SMITH:  With regard to the videolink matter, we still are

20     attending further information that will be necessary in order for the

21     Chamber to make a reasonable decision as to whether or not our

22     application is appropriate or not.

23             JUDGE MOLOTO:  Okay.  Well, then, the Defence is urged just to

24     file all the motions that would advance the trial as soon as possible, or

25     well in advance to avoid late slip-ups.

Page 9849

 1             The Trial Chamber has also been informed that the parties

 2     discussed the question of the Easter holidays.

 3             MR. GUY-SMITH:  Just in terms of sitting and planning.  We are

 4     trying to get some sense of what the calendar may be looking at in the

 5     coming months so that we can make arrangements both for purposes of

 6     trying to keep things in order as well as a figure and an appropriate way

 7     of allocating time.

 8                           [Trial Chamber confers]

 9             JUDGE MOLOTO: [Microphone not activated]... in that regard then

10     Trial Chamber will -- let me just have a look ... on the 29th and 30th of

11     March --

12             THE INTERPRETER:  Microphone, Your Honour.

13             JUDGE MOLOTO:  I am sorry, I'll have to start all over again.  On

14     the 29th and 30th of March, I will not be available, so we will not sit.

15     And the Trial Chamber has agreed also that then the following week we

16     will take time off.  It may very well be that we might sit on the 31st

17     and the 1st, I'm not sure.  But then from the Friday the 2nd to April the

18     9th we will not sit.

19             MR. GUY-SMITH:  Thank you for that information.  It's most

20     helpful.

21             JUDGE MOLOTO:  Thank you very much.  Is that okay, Mr. Harmon?

22             MR. HARMON:  It is, Your Honour.

23             JUDGE MOLOTO:  Thank you so much.  Finally, the Trial Chamber has

24     been informed both from the meeting that you had with the senior legal

25     officer and from the last hearing of your health problems, Mr. Guy-Smith,

Page 9850

 1     and just to say we sympathize, and to say we did hear of the problems

 2     that you will be having in relation to scheduling your medical

 3     appointments and what have you.  To the extent that you are able to

 4     accommodate the trial, please do so.  To the extent that you are not able

 5     to do so, let us know in advance so that we can try to accommodate you.

 6             MR. GUY-SMITH:  Thus far I have a standing agreement that

 7     anything that I have to do that is outside of the court is not done

 8     during the time that we are in session.  So for those times that we are

 9     in session, I will not have any appointments, is the way that I've kept

10     it for the moment.  Hopefully we'll be able to keep it that way.  Thank

11     you very much for the accommodation, I will do appreciate that.

12             JUDGE MOLOTO:  Thank you so much.  You are welcome.  Any other

13     matter by the parties?  Mr. Harmon?

14             MR. HARMON:  Nothing for the Prosecution.

15             JUDGE MOLOTO:  Nothing from the Prosecution.

16             Mr. Guy-Smith.

17             MR. GUY-SMITH:  Yes, there are two brief matters.  Firstly, we

18     would like to alert the Chamber that it is the Defence's intention to

19     have during the Defence's case Mr. Chad Mair and Mr. Boris Zorko lead

20     some evidence, lead some witnesses in this case, and we want to alert the

21     Court to that at this point because if there's some kind of

22     administrative things that need be attended to.  But we'll take care of

23     that more fully later.  So it won't be just myself and Mr. Lukic who are

24     speaking, but we will actually have the benefit of these two young men

25     speaking as well at some point.  And we'll deal with that in the

Page 9851

 1     appropriate fashion so the Chamber is satisfied and understands precisely

 2     what our requests are.  We'll go through the Registry and all the

 3     necessary hoops, but we wanted you to be aware of that from the outset.

 4             JUDGE MOLOTO:  [Microphone not activated] Thank you.  Just to

 5     make sure that we are understanding each other, you said that you will

 6     have Mr. Chad Mair and Boris Zorko --

 7             THE INTERPRETER:  Microphone please.

 8             JUDGE MOLOTO:  You said you will have Mr. Chad Mair and

 9     Boris Zorko lead some evidence.  Lead some witnesses in this case.  You

10     are not putting them in the witness-stand?

11             MR. GUY-SMITH:  Well, it depends how well they behave.

12             JUDGE MOLOTO:  Thank you.

13             MR. GUY-SMITH:  The other matter is something that I'm raising in

14     somewhat of a generic fashion, but there is some concern here.  We have

15     been made aware of the fact that there was in the past month or so a

16     search somewhere in Serbia which has resulted in the amount of some

17     substantial material being seised by the Office of the Prosecutor.  We

18     have been told it's in the neighbourhood of some 6.000 pages.  We don't

19     know whether or not this is in fact accurate or not and the information

20     at the present time is anecdotal.  However, the anecdotal information

21     that we've received causes us some concern in as much as it deals, from

22     what we understand, with factual matters that may directly pertain to

23     issues concerning this case.

24             We have been informed that other cases have received this

25     disclosure.  Because we went through this once before with regard to

Page 9852

 1     another relatively dramatic piece of disclosure, that being the Mladic

 2     diary, which is something we found out about anecdotally when asked for,

 3     I want to raise the issue now because I want to make sure that there is

 4     not information that is potentially either Rule 66 or Rule 68 that should

 5     be in our possession as soon as possible.  And I'm not casting any

 6     aspersions whatsoever right now just because due to the shortness of

 7     time, I want to make sure the matter is attended to.  And I'm raising the

 8     matter because I just heard about it.  So it causes us some concern.

 9     There's secondary issue which deals with disclosure, that is to the

10     extent that the Prosecution heretofore has statements from those

11     witnesses who we intend on calling, we expect that we will -- we have

12     received some, but we expect that we will be receiving the balance of

13     those statements in short order.  And for purposes of efficient trial

14     calendaring and trial regulation, the sooner we have that information

15     that also can effect the orderly presentation of the Defence.

16             JUDGE MOLOTO:  Mr. Guy-Smith, all that the Chamber can say in

17     connection with the point you raised relating to search and seizure in

18     Serbia is, I note what you said.  We know nothing about it, and I would

19     hate to comment on that.

20             MR. GUY-SMITH:  Understood.  The only reason I'm raising it is I

21     don't want to be in a position where we come to you say and say, Oh my

22     God, the sky is falling, and we need to request some kind of -- we would

23     need to request some kind of continuance or some kind of intervention by

24     the Chamber, if we can take care of the matter beforehand.  And I

25     understand what the Chamber said.

Page 9853

 1             JUDGE MOLOTO:  If an intervention is requested from the Chamber

 2     and the Chamber is able to intervene, we'll have to deal with the matter

 3     at that stage.  At this stage, all I know is that the Prosecution has

 4     rested.  And unless some unforeseen circumstance arises, I don't expect

 5     that a re-opening of the Prosecution case.

 6             MR. GUY-SMITH:  Very well, excellent.

 7             JUDGE MOLOTO:  But as I say, again I don't prosecute the

 8     Prosecution's case.

 9             MR. GUY-SMITH:  I understand, Your Honour.  Thank you.

10             JUDGE MOLOTO:  That's right.

11             So let me go back to the question of Mr. Mair and Mr. Zorko

12     appearing -- or leading evidence.  Now, I don't doubt anything and I have

13     no qualms at all.  I just want to say that I hope you will sort out what

14     needs to be sorted out with the Registry so far as the right of

15     appearances may be concerned.

16             MR. GUY-SMITH:  Absolutely.

17             JUDGE MOLOTO:  Thank you so much.

18             Any other matter?  Nothing.

19             MR. HARMON:  Nothing for the Prosecution, Your Honour.

20             JUDGE MOLOTO:  Thank you very much, Mr. Harmon.

21             And nothing from the Defence.

22             Then that being the case, this court stands adjourned to the 22nd

23     of February, 2010.  I can't say the time right now.  I can't say the

24     court right now.  Thank you so much.  Court adjourned.

25                           --- Whereupon the hearing adjourned at 3.23 p.m.,

Page 9854

 1                           to be reconvened on Monday, the 22nd of February,

 2                           2010.