Tribunal Criminal Tribunal for the Former Yugoslavia

Page 238

1 Thursday, 13 July 2006

2 [Pre-Trial Conference]

3 [Open session]

4 [The accused entered court]

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

6 JUDGE AGIUS: So good afternoon, Madam Registrar. Could you

7 kindly call the case, please.

8 THE REGISTRAR: Good afternoon, Your Honours. This is case number

9 IT-05-88-PT, the Prosecutor versus Vujadin Popovic et al.

10 JUDGE AGIUS: Thank you, madam.

11 So let's go to the usual formality. I will be asking each of the

12 accused whether they can follow the proceedings in their own language.

13 I'll start with Vujadin Popovic.

14 Good afternoon, to you, Mr. Popovic.

15 THE ACCUSED POPOVIC: [Interpretation] Good afternoon.

16 JUDGE AGIUS: Can you follow the proceedings in your own language?

17 THE ACCUSED POPOVIC: [Interpretation] I can.

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

19 Mr. Beara. The same question to you.

20 THE ACCUSED BEARA: [Interpretation] I can follow, Your Honour.

21 JUDGE AGIUS: I thank you so much, Mr. Beara, and good afternoon

22 to you.

23 Mr. Nikolic. Same question: Are you receiving interpretation in

24 your own language?

25 THE ACCUSED NIKOLIC: [Interpretation] I am, Your Honour.

Page 239

1 JUDGE AGIUS: All right. Thank you, Mr. Nikolic, and good

2 afternoon to you too.

3 Ljubomir Borovcanin, good afternoon to you. Can you follow the

4 proceedings --

5 THE ACCUSED BOROVCANIN: [Interpretation] Good afternoon. Your

6 Honour, I can hear everything and understand everything.

7 JUDGE AGIUS: I thank you so much, and good afternoon to you. You

8 may sit down.

9 Vinko Pandurevic, good afternoon to you. Can you follow the

10 proceedings in your own language?

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

12 Honour. Yes, I can.

13 JUDGE AGIUS: Thank you. And Mr. Milan Gvero. Can you follow the

14 proceedings in your own language?

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

16 Mr. President. I can follow the proceedings.

17 JUDGE AGIUS: Thank you, Mr. Gvero, and good afternoon to you,

18 too.

19 And finally, Mr. Miletic. Can you follow the proceedings in your

20 own language?

21 THE ACCUSED MILETIC: [Interpretation] Yes I can, Your Honour.

22 JUDGE AGIUS: Thank you, Mr. Miletic, and good afternoon to you

23 too.

24 Let's go to the appearances. Appearances for the Prosecution.

25 MR. McCLOSKEY: Good afternoon, Mr. President and Your Honours.

Page 240

1 Peter McCloskey. Appearing with me, Julian Nicholls and Janet Stewart.

2 JUDGE AGIUS: I take it there is no one behind the column.


4 JUDGE AGIUS: I thank you, Mr. McCloskey, and a very good

5 afternoon to you and your team.

6 So appearances for Vujadin Popovic.

7 MR. ZIVANOVIC: Zoran Zivanovic, lead counsel, and Julie Condon,

8 co-counsel for Vujadin Popovic.

9 JUDGE AGIUS: Thank you, Mr. Zivanovic. A very good afternoon to

10 you and your team.

11 Appearances for Ljubisa Beara.

12 MR. OSTOJIC: Good afternoon, Your Honour. My name is John

13 Ostojic. I'm here today with Mr. Christopher Meek, our co-counsel, and

14 our legal assistant Walter Prentice.

15 JUDGE AGIUS: I thank you, Mr. Ostojic, and good afternoon to you

16 and you were team.

17 Drago Nikolic. Appearances for Drago Nikolic.

18 MS. NIKOLIC: [Interpretation] Good afternoon, Your Honour. Jelena

19 Nikolic and Mr. Stephane Bourgon for Drago Nikolic.

20 JUDGE AGIUS: A very good afternoon to you both, Madam Nikolic,

21 and welcome.

22 Appearances for Ljubomir Borovcanin.

23 MR. LAZAREVIC: Good afternoon, Your Honours. My name is

24 Aleksandar Lazarevic, and here by my side is Mr. Miodrag Stojanovic. We

25 represent Mr. Ljubomir Borovcanin.

Page 241

1 JUDGE AGIUS: I thank you, Mr. Lazarevic, and good afternoon to

2 you and your team, and I hope you will not be hiding behind the column for

3 the rest of the trial.

4 MR. LAZAREVIC: I'll do my best, Your Honour.

5 JUDGE AGIUS: Thank you. Appearances for Radivoje Miletic.

6 MS. FAUVEAU: [Interpretation] Your Honour, Natacha Ivanovic for

7 General Miletic.

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

9 Appearances for Milan Gvero.

10 MR. KRGOVIC: Good afternoon, Your Honour. Dragan Krgovic and

11 Natalie Wagner for General Milan Gvero.

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

13 And last but not least, appearances for Vinko Pandurevic.

14 MR. HAYNES: Thank you for the "not least," Your Honour, and good

15 afternoon. At this table for Pandurevic are myself Peter Haynes, Djordje

16 Sarapa, and our legal assistant Francesco Rindi.

17 JUDGE AGIUS: I thank you so much, Mr. Haynes, and a very good

18 afternoon to both of you -- to the three of you.

19 So Madam Fauveau, are you going to be assisted or are you going to

20 be alone in this case? I'm asking you because if you have any problems,

21 if you have encountered problems and you need the Trial Chamber's

22 assistance, I can assure you, as on previous occasions, you will find it.

23 MS. FAUVEAU: [Interpretation] Your Honour, thank you very much

24 for asking this question. I'm currently in the process of negotiation

25 about Nenad Petrusic, negotiations with the Registrar. A decision was

Page 242

1 taken, but it was not a positive decision because he doesn't speak the

2 language of the Tribunal and he took part in another case in the Tribunal

3 so the Registrar deemed that there was a conflict of interest. Then the

4 Chamber decided that it was too exaggerated to say that it was a conflict

5 of interest and the main problem was a language problem. I underwent

6 negotiations with the Registrar in order to obtain counsel speaking B/C/S,

7 which is absolutely essential for my case, because I speak the language

8 but I speak Croatian, so I sometimes find it difficult to read documents

9 in the Cyrillic alphabet. But I can't seem to be able to find an

10 agreement with the Registrar. Furthermore, circumstances have been

11 changing. Because even if the Registrar deemed that Mr. Petrusic was not

12 possible because there was a conflict of interest he was appointed as a

13 legal counsel. I stated that his duty would be to be in touch with my

14 client whilst he was in -- still provisional release, and the Registrar

15 said that it was possible and he was appointed as a member of my team.

16 Furthermore, as far as I know, when the Prosecutor was contacted about

17 this and the Prosecutor made written submissions saying that, according to

18 them, there was no conflict of interest regarding Mr. Petrusic for him to

19 be able to be part of this case.

20 There is something else, and that is that at the time Mr. Krstic,

21 who was the client of Mr. Petrusic, was on the list of witnesses of the

22 Prosecutor, and that's not the case any more. And this is something that

23 reduces the possibility of a conflict of interest.

24 Unfortunately, today I received a rather unpleasant letter from

25 the Registrar. I can't call it anything else than blackmail because I'm

Page 243

1 being told that if I don't appoint someone who complies with all the

2 conditions set by the Registrar, then all the resources allocated to me

3 will be stopped. I must say that I have tried my best to find somebody

4 who is suitable. Unfortunately, there is no one on the 45 list who speaks

5 B/C/S. I don't think that it's up to the Registrar to tell me you don't

6 need anybody who speaks B/C/S. I really need a co-counsel who speaks

7 B/C/S. I'm trilingual; I speak French, English, and B/C/S. Unfortunately

8 in this case, that's the B/C/S language that I master the least because

9 I'm used to the variant of the language that is -- that is spoken in

10 Croatia. Any help coming from the Chamber would be extremely useful.

11 JUDGE AGIUS: All right. Please keep us informed about -- about

12 further developments, and hopefully there will be some kind of agreement

13 reached between now and when we start with the trial. In the meantime, I

14 will try to find out exactly what is happening. Then you know that we can

15 only intervene in a very limited extent, but there are instances when we

16 can do something. We'll see after hearing the other side of the story.

17 Thank you.

18 So before proceeding any further, it's my great pleasure as

19 Presiding Judge in this trial to welcome Judge Ole Bjorn Stole from

20 Norway. I welcome him on behalf of the Trial Chamber, on behalf of Judge

21 Kwon and Judge Prost. We've had already an opportunity to meet and

22 discuss several matters. Judge Stole was sworn in earlier on this morning

23 and he will be a valuable addition -- he is a valuable addition to the

24 Trial Chamber in this -- in this complicated case.

25 Let's start with the Pre-Trial Conference. And you would have

Page 244

1 already received a copy of the decision that we handed down this morning

2 on the several motions that I referred to during the Status Conference

3 that we held on the 6th of this month, motions challenging the second

4 consolidated amended indictment. You will recall that the second

5 consolidated amended indictment was filed by the Prosecution on the 14th

6 of June. Then we had challenges to it by Accused Popovic, Pandurevic and

7 Borovcanin. Relative motions challenging the indictment were filed on the

8 23rd and the 30th of June. There was a response, an integrated response

9 from the Prosecution on the 3rd of July, and a further reply from Accused

10 Borovcanin on the 4th of July.

11 As we intimated to you during the Status Conference, we have

12 succeeded in concluding -- coming to a decision which we handed down

13 earlier on.

14 Just want to make sure that everyone is aware of this and that you

15 have all received a copy of it.

16 Prosecution?

17 MR. McCLOSKEY: Yes, Mr. President.

18 JUDGE AGIUS: All right. Defence, is there any Defence team that

19 has not? Okay. That's good.

20 So I'm also informed - and I have a confirmation of it, actually -

21 that as -- that the second consolidated amended indictment was duly

22 translated by the CLSS and forwarded to each and every one of the accused,

23 and I just want to make sure that I have -- that we have the correct

24 information. If there is any one of the accused that has not received in

25 B/C/S the second consolidated amended indictment, please speak out now.

Page 245

1 All right. So that confirms.

2 So the first point we wish to make in the wake of the decision

3 that we handed down this morning is that to us now all Rule 72 challenges

4 to the second consolidated amended indictment have now been disposed of,

5 and there will be no further Rule 72 objections or submissions to be

6 filed.

7 For all intents and purposes of law, then, we will and we are

8 hereby declaring the second consolidated amended indictment to be the

9 operative indictment in this case until such time as the Prosecution

10 submits a new indictment in -- which would conform to what we decided

11 earlier on this morning.

12 As you know, we have in the decision itself fixed the 4th of -- of

13 August for the filing of the revised consolidated amended indictment. We

14 chose that day and not an earlier date because, as I will shortly be

15 explaining in private session, we think that the Trial Chamber, but more

16 particularly both of you, Prosecution and -- and Defence, will benefit

17 from a clean and accurate indictment which would even go beyond what we

18 decided earlier on this morning.

19 Let's go, for a couple of minutes, into private session. I need

20 to address something which I think can be dealt with in private session.

21 It's not of public consumption. Let's --

22 [Private session]

23 (redacted)

24 (redacted)

25 (redacted)

Page 246

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 [Open session]

19 THE REGISTRAR: We are in open session, Your Honours.

20 JUDGE AGIUS: Yes. I thank you so much.

21 One of the main conclusions we -- the decision -- our decision of

22 this morning contains is that basically the second consolidated amended

23 indictment does not contain any new charges. This means that all the

24 accused that have already entered pleas against all the charges applicable

25 to them as contained in the 11th November indictment during the Status

Page 247

1 Conference of the 4th of April and that of the 6th of July do not have to

2 re-enter pleas. The pleas remain as they are. That applies to all the

3 accused bar one, and that's Borovcanin. And I will try to explain the

4 accused Borovcanin's position as it emerges now in the wake of this

5 morning's decision.

6 You will recall that way back in April Mr. Borovcanin had pleaded

7 -- entered a plea of not guilty to all counts except count 2. The reason

8 for not entering a plea to the charges contained in count 2 was, as put by

9 Mr. Lazarevic at the time, that it was not clear from the second

10 consolidated amended indictment that he was being indicted or amongst the

11 indictees under count 2. That matter has now been resolved by our

12 decision, and the decision is that he is indicted under count 2 of the

13 second consolidated amended indictment.

14 At the time when he refused to enter a plea on count 2, we decided

15 to postpone his entering a plea till the matter was ultimately resolved by

16 a decision of the Trial Chamber. Therefore, our conclusion is that, after

17 this morning's decision, he now is in a position to enter a plea, and this

18 for -- for the purposes of this exercise, this is not a further initial

19 appearance. We're not talking of a new charge, it's just a clarification

20 that has been established by our decision and, therefore, Mr. Borovcanin

21 will be very shortly called upon to enter his plea on count 2 today.

22 However, our decision is that he also needs to enter a plea or

23 re-enter a plea in relation to count 1 of the second consolidated amended

24 indictment. Let me explain on behalf of the Trial Chamber the position.

25 When in -- earlier on, Mr. Borovcanin pleaded not guilty to count

Page 248

1 1, count 1 was limited to aiding and abetting genocide. In our decision

2 of the 31st May, we -- we ordered or we directed the Prosecution to

3 clarify under which form or forms of responsibility Mr. Borovcanin was

4 being charged under count 1. The Prosecution, as you will recall, did so

5 by deleting the phrase "limited to aiding and abetting genocide," and in

6 our decision which we handed down this morning, we held that the resulting

7 language of count 1 removes the ambiguity in relation to Mr. Borovcanin's

8 alleged responsibility for genocide and appropriately reflects now the

9 fact that he's charged now, as he was in the consolidated amended

10 indictment, with participation in the joint criminal enterprise to commit

11 genocide. So that having been re-established, basically, and with the

12 deletion of the words "limited to aiding and abetting genocide," he will

13 now be required to re-enter a plea also in relation to -- to count 1. And

14 I think before we move any further to the other items on the agenda for

15 today's Pre-Trial Conference, we will proceed immediately with this

16 matter.

17 Mr. Lazarevic.

18 MR. LAZAREVIC: Yes, Your Honour.

19 JUDGE AGIUS: I will be asking your client very shortly -- I would

20 like to see -- because if -- if you could at least for one moment exchange

21 place with your colleague. And I don't mean to offend your colleague by

22 any chance, but I think ... In the first place, do you require a short

23 time to explain to your client the position in case he has not understood

24 or has not followed what I have --

25 MR. LAZAREVIC: Your Honour, I believe that Mr. Borovcanin

Page 249

1 understood very well what you are asking him to do. However, earlier this

2 morning we were in the Detention Unit with Mr. Borovcanin, and while

3 discussing this issue with him, we were not aware of the decision which

4 was rendered later, and I became aware of it only some 30 minutes ago when

5 I arrived here. So if I can ask for only five minutes of -- to confer

6 with Mr. Borovcanin.

7 JUDGE AGIUS: We have got this option: We can -- you can do that

8 during the first break, and we can postpone this. I think it will be

9 easier, so that if you require more than five minutes, you will have the

10 opportunity without us needing to interrupt.

11 MR. LAZAREVIC: Yes. Thank you very much. I believe that it

12 would be the best solution.

13 JUDGE AGIUS: And I -- please, security officers, one of you,

14 whoever is in charge, needs to ensure that there will be the possibility

15 of counsel to approach and have a chat with his client during the break.

16 In other words, make the necessary arrangements. Okay. Thank you.

17 MR. LAZAREVIC: Thank you, Your Honour.

18 JUDGE AGIUS: I thank you, Mr. Lazarevic. He will only be asked

19 to enter a plea in relation to counts 1 and 2 and then we can proceed. So

20 we'll come to this after the break, and I thank you for your cooperation,

21 Mr. Lazarevic.

22 And let me now address outstanding motions. There isn't much that

23 I need to add to what we already discussed during the 6th July Status

24 Conference, but there are some developments, and I think we need to

25 address those developments.

Page 250

1 The day after we had the Status Conference, the Prosecution filed

2 its consolidated reply and relation to the various responses that were

3 filed by the various Defence teams on the adjudicated facts, on the

4 Prosecution motion for -- on adjudicated facts. There was one exception

5 and that was Accused Beara.

6 Two days ago - and we only received it yesterday, actually -

7 Counsel Ostojic for Mr. Beara filed a motion for leave to file a delayed

8 response to the Prosecution motion, as well as a copy of the response that

9 he seeks leave to file. These filings exceed the deadline which was set

10 by the Trial Chamber which was of the 30th of June. It exceeds by 11

11 days. So before we eventually proceed to hand down our decision of

12 whether to grant leave or not, we wish to have a quick oral response by

13 the Prosecution whether they take a position on this, on the request for

14 leave, basically, first, and then we'll discuss something else afterwards.

15 MR. McCLOSKEY: Mr. President, we'll take no position at this

16 time, this early in the programme. I'm sure this -- I trust this won't be

17 a common occurrence.

18 JUDGE AGIUS: All right. No. We anticipate that too. That being

19 the case, we can indicate that we are inclined to grant the motion. The

20 same applies when I later refer to a second motion of Mr. Ostojic relating

21 to the Rule 92 bis.

22 Would you be requiring time to file a response to both Defence

23 motions, both in relation to the adjudicated facts and 92 bis?

24 MR. McCLOSKEY: Yes, Mr. President, just -- I think the usual time

25 would be appreciated.

Page 251

1 JUDGE AGIUS: All right. Okay. So I think we can dispose of that

2 in due course. In any case, the decisions on both the adjudicated facts

3 motion and the Rule 92 bis motion are not to be expected before the

4 recess. So you will have the regular time for filing of your responses.

5 That's all I had to state in relation to the outstanding motion

6 relating to the proposed judicial notice of adjudicated facts.

7 Are there any further submissions that you, Mr. McCloskey, or any

8 one of the Defence teams would like to make at this stage? And those will

9 be considered to be final submissions, of course without prejudice to the

10 responses that you will be filing.

11 MR. McCLOSKEY: Mr. President, as, I think we spoke briefly last

12 time, with the new case coming out of Rwanda, we've been reading that to

13 determine whether it's appropriate, and we would like to file something on

14 that, hopefully within a week because of the -- and we've been trying but,

15 as you can see, things keep happening. But I think we should be in a

16 position that we can file something within about a week on that, just to

17 draw the parties' attention to that new case and how it may affect the

18 outstanding motion, as well as the Oric judgement we believe has some

19 relevance. We're looking at that as well.

20 JUDGE AGIUS: All right. I thank you. So the position hasn't

21 changed, actually, from what it was on the 6th of July with the exception

22 that you anticipate within a week you will be able to produce something.

23 I take it there are no further comments. Then there is the other

24 outstanding motion that I have already referred to. That's the

25 Prosecution motion for admission of several 92 bis statements. I've dealt

Page 252

1 with the motion for leave to file a delayed response on behalf of

2 Mr. Beara. That will be decided tomorrow.

3 There was the issue that we raised during the Status Conference

4 relating to some of the Rule 92 bis statements that you were proposing,

5 namely, that there was reference in there to several exhibits that were

6 used during the testimony that were not included in the DVD or CD-ROM that

7 was provided, and that we had made it clear that in our opinion we could

8 evaluate, fully evaluate the prior testimony of the proposed Rule 92 bis

9 witnesses if we were able to see these exhibits. And we asked you to

10 provide us a list, at least with cross-references, or to provide us

11 directly with a new DVD which would include those exhibits.

12 What's the latest on this, Mr. McCloskey?

13 MR. McCLOSKEY: We're halfway through that, and I'm told that we

14 can get you the entire fished product by the 20th. Again, in about a

15 week.

16 JUDGE AGIUS: I thank you so much. Any remarks from the Defence

17 bench? Thank you.

18 Something that we have worked intensively upon, and which we are

19 in the process of finalising is the matter relating to the 18th May

20 Prosecution motion for protective measures, which is the only motion for

21 protective measures filed so far. You will recall that there were Defence

22 responses filed on 1st and the 2nd of June to which the Prosecution then

23 filed a consolidated reply on the 8th of June.

24 We are in the process of finalising our decision, as stated. What

25 we would like to know from you, Mr. McCloskey, and if necessary we will go

Page 253

1 into private session for this purpose, is whether, in addition to the

2 information that you provide in your motion relative to each one of the

3 persons for whom you seek protective measures, whether in addition to that

4 information, you have other information that can make our task easier,

5 which would enable us to evaluate better whether you really deserve to

6 have your motion for protective measures accepted; and if yes, to what

7 extent. I mean, we find that compared to several other motions that we

8 have come across in our work here in this Tribunal over the years that

9 they are pretty much laconic compared to --

10 MR. McCLOSKEY: I'm sure there is more information. We of course

11 try to make your job as easy as possible, but as you know, this is an

12 ongoing process. Security sometimes ebbs and flows, depending on the

13 situation on the ground, and I know there's at least a couple of cases

14 where that has happened, and -- but they are all very individual, and if

15 we had a moment or some time to look into each individual case, we could

16 provide individual information. If there is anything new that we can

17 provide you, there isn't very many, so that shouldn't be too difficult.

18 And we certainly will answer any questions. This is -- a lot of the time

19 it's hard to anticipate where your concerns are, but that's what we're

20 trying to do.

21 JUDGE AGIUS: Our concerns are if we are to decide - and we

22 ultimately have to - decide on your motion, dispose of your motion, and

23 you are pretty much specific as to what you request in your motion, then

24 we are asking you whether you can provide us with more information. And

25 if yes, how soon you can do that, because the -- the trial is on the

Page 254

1 doorstep.

2 MR. McCLOSKEY: We'll go over that this afternoon and --

3 JUDGE AGIUS: If necessary, we will dedicate some time to it for

4 tomorrow morning in private session, if necessary.

5 MR. McCLOSKEY: That would be fine. I think we can get through it

6 this afternoon if we adjourn early, or maybe earlier before too late, and

7 we'll be ready to talk about it. These things do always adjust, so I'm

8 sure we can adjust it.

9 JUDGE AGIUS: That's why we are asking, because when you filed the

10 motion, it was 18th May. Now it's two months after. And as you said,

11 ebbs and flows, and so we'll require some further information and then we

12 can proceed with our decision.

13 And then some good news -- I thank you, Mr. McCloskey.

14 JUDGE KWON: Can I ask Mr. McCloskey, I wonder whether you are in

15 the position to tell us whether these five witnesses are the only ones for

16 whom this kind of delayed disclosure would be sought on the part of the

17 Prosecution.

18 [Prosecution counsel confer]

19 MR. McCLOSKEY: We're not aware of anyone right now, Your Honour,

20 though I think I did mention last time, just so everyone is aware, one

21 member of our -- one person on our witness list was shot and killed

22 recently and under unusual circumstances that we're not fully apprised of.

23 So it is an ongoing concern, as I know it is for you too, I'm sure.

24 JUDGE KWON: Did any of these witnesses give evidence in another

25 trial?

Page 255

1 MR. McCLOSKEY: In some forms, yes. I can think of at least one

2 that did provide in -- I think it came in as 92 bis.

3 JUDGE KWON: Were they given this kind of protection?


5 JUDGE KWON: Delayed disclosure.


7 JUDGE KWON: You haven't identified those things in your motion.

8 MR. McCLOSKEY: We should have.

9 JUDGE KWON: Thank you.

10 JUDGE AGIUS: You can provide us with a much clearer picture

11 tomorrow, we hope. Thank you.

12 So Madam Fauveau and Mr. Krgovic, we have disposed of your motion

13 -- respective motions for temporary provisional release, which will

14 become operative after we finish the opening session of the trial

15 tomorrow. The understanding is that your clients will need to be back

16 here not later than the 14th of August. You are aware of our decision, I

17 suppose. Thank you.

18 Let's deal with disclosure matters very quickly. We dealt with

19 much of or most of the matters relating to disclosure during the 6th of

20 July Status Conference.

21 Mr. McCloskey, is the disclosure of all witness statements

22 completed by now?

23 MR. McCLOSKEY: There's one witness we're working on and otherwise

24 we're finished. I think there are a couple of translation issues, but

25 we've practically got the translation issues down to a bear minimum, so

Page 256

1 we're very close to the translation issues, and we have one -- one other

2 witness that we noticed we thought was on the list and was not, but we

3 have his statements and that will be rectified very soon.

4 JUDGE AGIUS: Right. Any remarks on this by -- yes, Madam

5 Nikolic?

6 MS. NIKOLIC: [Interpretation] Your Honours, we discussed this at

7 the Status -- at the last Status Conference, and the situation is the

8 same. No progress has been made with regard to disclosing 16 witness

9 statements in the B/C/S language, and there are another 11 witness

10 statements that were provided to other bodies in Republika Srpska, not to

11 Prosecution investigators. This is documents that BH institutions

12 obtained for investigations in front of the court in Sarajevo.

13 And there's another important matter, important for the Defence.

14 On a number of occasions we wanted our colleagues to assist us. We

15 requested assistance from our colleagues so that the last two or three

16 disclosures made via EDS in regard of the Srebrenica collection be placed

17 on CD. 28th of June and 29th of June of this year, these are the dates

18 concerned, and there are a lot of documents that would be important for

19 the Defence, for all Defence teams. If we could get these documents on

20 CD, we could then process and deal with all the documents in good time.

21 Furthermore, Mr. Nikolic's defence has attempted, on a number of

22 occasions at meetings that were held, to have a look at some of the

23 original documents. However, so far we have been unable to reach an

24 agreement with our colleagues, we have been unable to gain access to such

25 documents. Thank you.

Page 257

1 JUDGE AGIUS: Yes. Mr. McCloskey, Madam Nikolic has raised not

2 one but quite a few issues. Do you wish to address these issues

3 separately, one by one, starting with the last one perhaps where she is

4 alleging lack of cooperation, basically.

5 MR. McCLOSKEY: I don't think she means that. We've been talking,

6 we've been able to provide her with things. There's one original document

7 that is an expert in the UK, and still working on it. We've told her

8 that, and we're going to try to get it back. She's probably frustrated

9 because it's in our expert's hands, but it will be here. I'm not aware of

10 any other problem. Anything that we have she is welcome to have, and

11 we're ready to go down to the evidence locker and get it.

12 JUDGE AGIUS: And about her request for a CD compilation?

13 MR. McCLOSKEY: This is against the original understanding of

14 providing the material on a hard disk and that updates would go on the

15 EDS. It becomes extremely difficult and burdensome for the team to put --

16 make individual CDs for -- for all the accused in this situation when it

17 can be done --

18 JUDGE AGIUS: If anything, it will be for just one and then they

19 will burn copies. No one expects you to provide secretarial services

20 for --

21 MR. McCLOSKEY: It's safer for us that we give them to everyone

22 because even with the hard disk, it got lost for a while, Your Honour, and

23 we don't want that to become a problem, and that's what this -- there's

24 been a massive investment into this EDS system and we've made many

25 exceptions, and we'll continue to work with them, but knocking out CDs

Page 258

1 which are -- you have to search them individually, so that takes away from

2 the whole. And the great advantage of having something that's a whole

3 searchable, then you're not going to miss things.

4 JUDGE AGIUS: Are there any further comments on this -- these

5 issues? Yes, Madam Fauveau.

6 MS. FAUVEAU: [No interpretation].

7 JUDGE AGIUS: One moment. I am understanding what you're saying,

8 but I'm not receiving interpretation in English, and I want to make sure

9 that the accused are receiving interpretation in their own language. I'm

10 still not receiving, or of course -- I'm not expecting interpretation of

11 what I'm saying, but I'm -- could you please say something again in

12 French, Madam Fauveau, and --

13 MS. FAUVEAU: [Interpretation] Your Honour.

14 JUDGE AGIUS: It's coming through now.

15 MS. FAUVEAU: [Interpretation] May I continue? Thank you.

16 JUDGE AGIUS: May I ask you not to continue but to start again,

17 please. Thank you.

18 MS. FAUVEAU: [Interpretation] Yes, of course, Your Honour. Last

19 time I mentioned the fact that we had not received all the witness

20 statements on -- pursuant to Article 92 bis -- Rule 92 bis on the list of

21 witnesses. I will not repeat the name of these witnesses in open session.

22 This adversely affects us. We are not sure that we have received

23 all the witness statements currently in the hands of the Prosecutor of all

24 the witnesses that will be called to testify. The witness statements are

25 public and relate to Karadzic and Mladic. The counsel can access these

Page 259

1 testimonies because one can find the transcripts on the internet in

2 English or in French; however, we cannot access a B/C/S version.

3 I'm fully aware of the fact that the transcripts are not being

4 translated, but the Prosecutor should nevertheless hand over the

5 audiotapes of this testimony.

6 We would also like to make sure that the Prosecutor has handed

7 over all the witness statements. This would otherwise hinder the

8 preparation of the Defence team and the preparation for this trial. We

9 would like to make sure that before the testimony of the witness another

10 witness statement has been provided to the Prosecutor several years

11 beforehand, and this, of course, would delay the proceedings.

12 JUDGE AGIUS: Right. Again there are several issues involved.

13 Let's start with the easiest, the simplest one. I mean, we all know that

14 testimonies here, or transcripts of evidence, is in what we see on the

15 screen in English, and -- and if the original testimony is in B/C/S, then

16 it is recoverable. It's available on tape.

17 Is there any particular difficulty on your part in providing the

18 taped version of these testimonies, because I wouldn't imagine the

19 existence of such difficulties.

20 MR. McCLOSKEY: None. And this is -- again, we have a very good

21 relationship with Ms. Fauveau, and had we heard about her specific issues,

22 we would deal with them. This is the first time I'm hearing of specific

23 issues, and we're endeavouring to dig up as many, as -- all that we can.

24 JUDGE AGIUS: I thank you so much, Mr. McCloskey. The other point

25 raised by Madam Fauveau is in her considered opinion not all 92 bis

Page 260

1 statements have been made available. Do you accept that -- that that is

2 the position, or do you disagree with that?

3 MR. McCLOSKEY: Given the complexity of hiding places for

4 statements, that could be very well true. If she will help us look or

5 identify which witnesses she's talking about, we will endeavour to search,

6 as we have with her, and I invite all others to assist us in that process.

7 We're doing a pretty good job, and I think they'll find in the previous

8 two trials we did a very good job. So we'll continue. Give us a hand.

9 JUDGE AGIUS: I think it stands to reason, Madam Fauveau, that you

10 need to be more specific, not now and not in open session in any case, as

11 regards your allegations, and it seems that Mr. McCloskey is giving us his

12 word that he will attend to the various matters raised by you.

13 Yes, Madam Fauveau.

14 MS. FAUVEAU: [Interpretation] Your Honour, of course I shall not

15 quote the names of witnesses in open session. However, I would like to

16 remind Mr. McCloskey that I reminded him of the three witnesses at the

17 last Status Conference on the 6th of July in private session. So the

18 names of these witnesses are to be found in the transcript in private

19 session. I will of course contact the Prosecutor to remind him of the

20 names of these witnesses.

21 JUDGE AGIUS: But what you stated earlier on today, a few minutes

22 ago, was it limited to those three persons, three names, or does it go

23 beyond that? In other words, are there further statements of other

24 persons that are still not available?

25 MS. FAUVEAU: [Interpretation] We have difficulties in identifying

Page 261

1 the witnesses for which we have received no statement. We can only

2 identify the witnesses if they have already previously testified in

3 previous trials. There are three witnesses whom we have identified who

4 have already testified in a trial. We would like a statement on the part

5 of the Prosecutor stating that all the witnesses and witness statements

6 have been disclosed to us, because we really can't identify them all.

7 JUDGE AGIUS: So I take it that the conclusion on this issue is

8 that you will continue to liaise between yourselves and hopefully that

9 will bear -- come to fruition.

10 Mr. McCloskey, we mentioned last time the issue relating to

11 Mr. Butler's, the military expert report. The only remaining aspect

12 related to the translation of that report. Where do we stand?

13 MR. McCLOSKEY: The projected receipt date was today -- yesterday,

14 sorry, and we have not received it today. But they're very good at those

15 dates, and I would expect they'll be getting back to us very soon because

16 we've, of course, asked them where it is.

17 JUDGE AGIUS: And when are we to expect the -- the filing of all

18 expert reports to be concluded?

19 MR. McCLOSKEY: Well, we've -- we have a statement of General

20 Smith that was -- is being taken, I think, right now as we speak, so it

21 just -- again, in about seven days, and there -- I think an update of

22 Helge Brunborg's demographics report, I was just speaking to them today,

23 and they get, as you might imagine, data that comes in monthly related to

24 identifications of people exhumed in Srebrenica, and they would like to

25 update the report, and they said that they can provide me with an updated

Page 262

1 report in October because they're working on the -- two other cases, one

2 that's in trial and one that's set for trial. But that is really an

3 update and it's not a significant -- in some respects a significant issue.

4 It doesn't change much, just --

5 JUDGE AGIUS: Okay. I thank you so much, Mr. McCloskey.

6 Are there any other remarks or matters that you would like to

7 raise in relation to disclosure? I see none.

8 Agreed facts. Again I mentioned this last time during the Status

9 Conference, resorting to some wishful thinking, hoping today we would meet

10 today and have a whole list of agreed facts. We have got some agreed

11 facts incorporated in some of the final briefs filed by some of the

12 Defence teams, but not much to write home about, to be honest.

13 Can I, without wasting much more time on this issue, enjoin you

14 to, as much as possible between now and when we start with the evidentiary

15 stage, to try and lessen the burden of everyone, including yourselves,

16 your own burdens, respective burdens, by agreeing to what can be agreed

17 upon. There may be hundreds of facts that you could easily agree upon and

18 that would leave us more time for more substantial issues to be dealt with

19 in this Tribunal.

20 Do I have your word that you will make an additional effort to try

21 and provide the Trial Chamber with a more reasonable and more

22 comprehensive list of agreed facts? Silence reigns supreme. It's only

23 Mr. Haynes that nodded twice. Thank you.

24 Let's deal with the next matter in private session for just two

25 minutes, three minutes. I have some information to relay to you. This is

Page 263

1 a matter we have always dealt with in private session so far.

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18 [Open session]

19 THE REGISTRAR: We're in open session, Your Honours.

20 JUDGE AGIUS: Yes. Proofing chart I don't think we need to

21 discuss. We've discussed that enough.

22 In relation to opening statements, we come to one important issue.

23 We raised -- yes, I know. We raised this matter during the last Status

24 Conference. Mr. Bourgon was not here. We had a declaration from some but

25 not all of the Defence teams that they will or will not be making opening

Page 267

1 statements following that by the Prosecution. It's important for us to

2 know, because first we have to continue planning and case -- managing the

3 case as best as we can.

4 Secondly, following the opening statements, the Prosecution will

5 be calling their own -- their first witness, and they need to know whether

6 that will be today or tomorrow, I mean basically.

7 So I saw you standing, Mr. Bourgon. If you have any statement to

8 make, please go ahead.

9 MR. BOURGON: Thank you, Mr. President. I meant to address the

10 issue of the proofing chart. That's why I got up at this point.

11 JUDGE AGIUS: Oh, I'm sorry. Go ahead.

12 MR. BOURGON: With all due respect, Mr. President, we do believe

13 that the issue of the proofing chart must be raised at this time at this

14 Pre-Trial Conference, and I'd like to make a few observations in respect

15 of the proofing chart.

16 Granted, Mr. President, the proofing chart which was filed by the

17 Prosecution, or parts thereof, was done so at the Chamber's request and

18 was done so also according to the instructions that were issued by the

19 Trial Chamber, and we -- of course we understand that the primary use of

20 the proofing chart is for the benefit of the Trial Chamber and that the

21 requirements are set in this regard.

22 There is, however, a secondary use to the proofing chart and that

23 is the use that the Defence will make of this chart, and we believe that

24 the document filed so far by the Prosecution is, unfortunately, not much

25 of assistance for the purposes of the Defence. Practically speaking,

Page 268

1 Mr. President, we would like to see, from a Defence point of view, we

2 would like to have a chart that can be read by a witness, which is

3 something that cannot be done with the product that we have been served

4 with at this time.

5 That is, Mr. President, for each witness, what the Defence is

6 interested in getting is something that is rather quite simple. Simply,

7 we'd like to have for each witness the following information divided into

8 three parts: First, we'd like to know every single piece of material that

9 is in the possession of the Prosecution with respect to a witness that

10 will testify; that is, information that is provided by the witness,

11 whether it is a statement, whether it is an interview, whether it is a

12 so-called information report or previous testimony, as well, of course, as

13 any document or potential exhibit that was given to the Prosecution by

14 this witness.

15 Now, that's the first part. Once we know exactly what the

16 Prosecution has, what is this material, then we can prepare for that

17 witness, and that is the most important part from the Defence point of

18 view.

19 The second part, of course, was what, I guess, matches the Trial

20 Chamber's concerns, is that of the exhibits, is somehow matching the

21 exhibits with the testimonies or with the witnesses. In our view,

22 Mr. President, it would be much easier if for each witness we would simply

23 get the list of exhibits first that will be used with the witness. So

24 quite simply, the numbers of the exhibits that the Prosecution intends to

25 show and use during the testimony of the witness; and the second part is,

Page 269

1 of course, documents that will not be used with the witness but are

2 relevant to what the witness is bringing to this trial.

3 The third part would then be, of course, because we imagine that

4 there will be some orphan documents, or documents that cannot be matched

5 to any witness, and for these documents the Prosecution should provide, in

6 our view, Mr. President, the information that says what is the relevance

7 of the document to the Prosecution's case. In this regard, then we'll be

8 able to argue as to whether these documents are admissible in the first

9 place.

10 So in summary with the proofing chart, what we've received so far,

11 in our view, is very complicated and very difficult to use. We would

12 prefer to have a three parts document including, one, list of witnesses;

13 two, for each witnesses, the material in the possession of the

14 Prosecution, the exhibits that will be used, the exhibits that will not be

15 used but are relevant; and then information related to -- relating to the

16 relevance of the orphan documents that cannot be matched with each

17 witnesses.

18 We believe, Mr. President, that such a document or such a proofing

19 chart would be of great assistance to the Defence, but not only to the

20 Defence but really to the running of this trial, so that when a witness

21 comes before the Trial Chamber, everybody knows what this witness will

22 bring, what will be used, and then we can move much more quickly with each

23 witness.

24 Thank you, Mr. President.

25 JUDGE AGIUS: I thank you, Mr. Bourgon.

Page 270

1 Any remarks, Mr. McCloskey? I assure you, Mr. Bourgon, that we

2 tried to simplify the idea of a proofing chart as much as we could. The

3 alternative would have presented you with a much vaster but also much more

4 complicated proofing chart. Some of the matters that you raised are quite

5 valid. Of course, however, you have -- I can anticipate you, some of the

6 issues will be dealt with later on as we proceed, and indicate what our

7 requirements will be as we go along from basically from one week to the

8 other, from one month to the other, but also from one week to the other,

9 and I think those will address some of your concerns.

10 Yes, Mr. McCloskey.

11 MR. McCLOSKEY: Just to respond briefly. Most of what Mr. Bourgon

12 has said is, I think, the normal preparation of any case. It's been

13 delayed a bit with the proofing chart, I have to tell you, because I would

14 -- my mind works similarly to the way his does, and we're endeavouring to

15 do just that. In fact, of course, there's already a witness list, and

16 it's -- as I've told him, it's in a rough order but put Butler way back,

17 and we'll have rules related to the exhibits that will be used for each

18 witness, how many hours or days beforehand, so they'll be able to see

19 those. And as for documents that are relevant to that witness that the

20 Defence may be interested in, well, that's his work. We'll of course help

21 him, point out any Rule 68. We're also assisting the Defence with its

22 vast amount of documents by trying to give them indexes by date, by name,

23 by subject, so that it's not just a mass of documents, so that they'll be

24 in a similar position as we are when it comes to trying to figure out what

25 might be good for cross-examination.

Page 271

1 And so I think that should largely settle it, and we'll continue

2 to work on both things. I'm -- what I am endeavouring to work on for all

3 of us is a binder with each accused and with the key photographs, video,

4 intercept, statements and evidence. There is not, you know, ten binders

5 for each accused. It will be small and this will be the most direct

6 evidence, which I think in the early stages is very helpful. And that's

7 one of the projects we're working on as well as your project and

8 Mr. Bourgon's project.

9 JUDGE AGIUS: Yes. Let me try to sum it up and close on this

10 matter as soon as possible.

11 We decided to extend the time limit for the Prosecution to file

12 the definitive proofing chart precisely because we could see that the

13 Prosecution was not trying to shy away from or avoiding from making

14 available the information that would be required, and we realised that the

15 work involved was enormous, and we had proof of that when we got the first

16 consignment, sort of. That's indicative.

17 As we go along, I think we will need more information. We'll be

18 able to make an assessment as we go along. If there are gaps to be

19 filled, I'm sure we can fill them as we go along. But I don't think we

20 should endeavour at this stage to devise a -- the perfect proofing chart,

21 because that would only be possible to provide when this case is over and

22 not before it starts.

23 It is problematic. I mean, it presents a lot of problems, such a

24 proofing, and we tried to cut down on what we -- on templates that we had

25 early on to make it feasible, to make it possible. All right?

Page 272

1 Yes, I saw you standing, Madam Fauveau.

2 MS. FAUVEAU: [Interpretation] Your Honour, just very briefly. As

3 far as the proofing chart is concerned, it's Annex B of the proofing

4 chart. You ruled, ordered that the Prosecutor should identify the

5 witnesses and match it with the paragraph in the indictment, and you said

6 that this should apply to all the accused.

7 My client and Mr. Gvero find themselves in a particular situation

8 because they are not charged on all counts and not all paragraphs concern

9 them. The Prosecutor excluded paragraph 27 to 30 and the paragraphs

10 relating to Miletic and Gvero. But if we look at the proofing chart,

11 alongside the name of General Miletic and Mr. Gvero and the names of the

12 witnesses, we can see that paragraphs 27, 28, 29 and 30 have also been

13 included for these two accused. I think you had stated that it was

14 important to identify the paragraph and match it with indictee. I would

15 like the Prosecutor to clarify this, please.

16 In addition, we spent a lot of the Pre-Trial Conference talking

17 about the charges for which Gvero and Miletic are indicted for. I think

18 the indictment is now sufficiently clear, but as far as pre-trial brief

19 and the proofing chart are concerned, we don't have enough indications.

20 We don't know what kind of evidence is going to be used against the

21 accused. We would like to be able to prepare our Defence case as best as

22 possible.

23 JUDGE AGIUS: Let's not preempt certain issues. The proofing

24 chart that has been filed to now is a partial one, covering only a limited

25 period of time, and that may explain several of the queries that you made.

Page 273

1 On the other issue relating to the application vis-a-vis your

2 clients, your respective clients - Mr. Krgovic too - relating to

3 paragraphs 27, 28, 29 and -- 27 to 30, I don't have an answer, of course,

4 unless it's the usual problem with cut and paste. Yes.

5 MR. McCLOSKEY: Mr. President, I think we can argue over this

6 proofing chart and how accurate or applicable it is, as we will. I would

7 prefer that we do that with the indictment, frankly. But I think the

8 problem she's referring to is that Gvero and Miletic have not been charged

9 with the murder operation. It was the Prosecutor's discretion which to

10 charge them with, and that may have created the issue she's referring to.

11 You will hear lots of evidence of their possible knowledge and involvement

12 in all the events charged, but it was the discretion to have this as

13 targeted as possible that has led to this situation and the charges.

14 JUDGE AGIUS: All right. But anyway, look into it a little bit

15 further. I think deserves to be dealt with.

16 I think -- yes, Madam Fauveau.

17 MS. FAUVEAU: [Interpretation] I'm sorry, Your Honour, but I must

18 say that it is this position of the Prosecutor which upsets me. We need

19 to know what the charges are in legal terms but in factual terms against

20 our client, and we still don't know this. We have not asked for the

21 joinder of cases. The accused here present must have the same right as if

22 they were being tried individually. If we proceed this way, if we don't

23 know what the charges are, if we don't know what facts the charges are

24 based on, we would ask a severance of charges, of trials here.

25 JUDGE AGIUS: Let's not create a storm in a teacup. Everyone is a

Page 274

1 lawyer here, and I suppose I don't need to say much more. Your clients

2 are not being charged under the proofing chart, Madam Fauveau, they are

3 being charged under the consolidated indictment, as is and as finally

4 determined this morning in our decision. So I don't think your concerns

5 that they may be charged with additional crimes because of what may be

6 rightly or wrongly included in the proofing chart should be a legitimate

7 concern of yours.

8 I think we need to have a break now, a 30-minute break. Thank

9 you.

10 --- Recess taken at 3.42 p.m.

11 --- On resuming at 4.15 p.m.

12 JUDGE AGIUS: Yes. Now, we had arrived at opening statements

13 before we reverted to proofing charts. So, so far, following the last

14 Status Conference, the indications that I have -- that we have are the

15 following: First that Mr. Zivanovic -- Mr. Haynes indicated that he has

16 no intention to make an opening statement.

17 MR. ZIVANOVIC: We shan't have an opening statement after

18 Prosecution.

19 JUDGE AGIUS: Pardon?

20 MR. ZIVANOVIC: We shan't have opening statement after the

21 Prosecution.

22 JUDGE AGIUS: So far I've got declarations from Mr. Meek on behalf

23 of Mr. Ostojic, saying that Mr. Ostojic is planning to make an opening

24 statement. Do you confirm that?

25 MR. OSTOJIC: Yes, Your Honour, that's correct.

Page 275

1 JUDGE AGIUS: All right. Do you have an idea of the duration of

2 your opening statement?

3 MR. OSTOJIC: Not at this time, I do not.

4 JUDGE AGIUS: When will you be able to come forward with an

5 indication of the duration?

6 MR. OSTOJIC: There's two factors that would play in determining

7 my length and that is, one, how long the Prosecution gives their opening

8 statement, which I'm not sure exactly how long they'll be, but it will be

9 less than theirs. And secondly, I'm in the process of still drafting it

10 and outlining it, so I should know in the next -- by the 10th of August, I

11 would assume I would know definitively.

12 JUDGE AGIUS: We also need to know, and the Prosecution needs to

13 know. I will soon be asking the Prosecution for an estimated time for

14 their opening statement, but I understand from what you had stated earlier

15 that you're thinking of one session or two sessions. Let's start from

16 you, anyway.

17 MR. McCLOSKEY: I believe I want to have the option of taking a --

18 our normal court day, which is, what, two sessions.

19 JUDGE AGIUS: All right. Fair enough.

20 MR. McCLOSKEY: And it may be shorter. It wasn't that long last

21 time.

22 JUDGE AGIUS: That's what you indicated. You indicated a minimum

23 of about three hours. That's what you had indicated.

24 So let's assume for the time being that Prosecution will have one

25 day, or one sitting day, for their opening statement.

Page 276

1 Now, Mr. Ostojic, you need to tell us, more or less, how long you

2 will expect.

3 MR. OSTOJIC: I'll tell you right now I expect it should be no

4 more than two hours, Your Honour.

5 JUDGE AGIUS: All right. So Mr. Ostojic, two hours.

6 Mr. Zivanovic and Mr. Haynes have already indicated that they will

7 not be making any opening statements. I need a confirmation of that.

8 Mr. Haynes.

9 MR. HAYNES: Certainly, Your Honour.

10 JUDGE AGIUS: Yes. And Mr. Zivanovic?

11 MR. ZIVANOVIC: I didn't hear -- listen, excuse me.

12 JUDGE AGIUS: Yes, I will repeat it. I need a confirmation from

13 you that you will not be making an opening statement.

14 MR. ZIVANOVIC: That's correct.

15 JUDGE AGIUS: Okay. Thank you. Now, Madam Nikolic, you reserved

16 to tell us later on, and that's today. Time up now?

17 MS. NIKOLIC: [Interpretation] Yes, Your Honour.

18 JUDGE AGIUS: What's your intention as regards opening statement?

19 MS. NIKOLIC: [Interpretation] Our intention is to give an opening

20 statement. It will go on until 3.00 at the latest, but we will confirm

21 all the details, but we'll need no more than three hours, in fact.

22 JUDGE AGIUS: I found the transcript saying --

23 MS. NIKOLIC: [Interpretation] Yes. We're confirming the duration

24 of the opening statement. I do apologise.

25 JUDGE AGIUS: Yes. I thank you, Madam.

Page 277

1 Mr. Lazarevic.

2 MR. LAZAREVIC: Your Honour, it is not our intention to give an

3 opening statement after the Prosecution.

4 JUDGE AGIUS: I thank you, Mr. Lazarevic.

5 Madam Fauveau.

6 MS. FAUVEAU: [Interpretation] Mr. President, we won't be making an

7 opening statement, and the accused won't be making any opening statement

8 pursuant to Rule 88 bis [as interpreted]. No one will be making an

9 opening statement.

10 JUDGE AGIUS: Mr. Krgovic.

11 MR. KRGOVIC: [Interpretation] Your Honour, we won't be making an

12 opening statement pursuant to Rule 84, but my client will make a statement

13 pursuant to Rule 84 bis, but he will need no more than half an hour.

14 JUDGE AGIUS: So that's it now. I had intention -- I had intended

15 to deal first with your opening statements and then whether your

16 respective clients would like to make statements. Let's go through the

17 list again. Mr. Zivanovic, you will not be making an opening statement,

18 but would your -- will your client Mr. Popovic be making a statement?

19 MR. ZIVANOVIC: He will not.

20 JUDGE AGIUS: Thank you. Mr. Ostojic, are you aware whether

21 Mr. Beara would wish to make a statement?

22 MR. OSTOJIC: I am aware and he will not at this time, Your

23 Honour.

24 JUDGE AGIUS: Okay. I thank you. Madam Nikolic, same question to

25 you.

Page 278

1 MS. NIKOLIC: [Interpretation] Yes. Our client's position is

2 identical; he won't be making a statement pursuant to Rule 84 bis.

3 JUDGE AGIUS: I thank you so much. Mr. Lazarevic.

4 MR. LAZAREVIC: No. Mr. Borovcanin will not be making an opening

5 statement.

6 JUDGE AGIUS: Madam Fauveau-Ivanovic?

7 MS. FAUVEAU: [Interpretation] Mr. President, I've already said

8 that my client won't be making an opening statement. I just want to add

9 there's a translation error that's been made. It concerns Rule 84 bis and

10 the transcript says Rule 88 bis.

11 JUDGE AGIUS: I thank you for pointing that out, Madam.

12 And Mr. Haynes, Mr. Pandurevic?

13 MR. HAYNES: Your Honour, he will not.

14 JUDGE AGIUS: So as I see it, we require one -- assuming one full

15 day for your opening statement and one and a half days for the two opening

16 statements, one by Mr. Ostojic, one by Madam Nikolic, and the statement

17 that Mr. Gvero intends to make. So we will make provision for those.

18 And you, Mr. McCloskey, you have prior notice that basically the

19 first three days of trial will be dedicated to these opening statements,

20 and then you can follow suit with the first witness immediately after.

21 MR. McCLOSKEY: So we begin Monday, so three days --

22 JUDGE AGIUS: Monday, Tuesday, Wednesday, and you need to have a

23 witness here --

24 MR. McCLOSKEY: Thursday morning.

25 JUDGE AGIUS: Yes. It's up to you. We will interfere the least

Page 279

1 possible with how you wish to proceed with the list of witnesses. I mean,

2 it's up to you whether to bring Mr. X before Mr. Y or change, provided the

3 Defence and the Trial Chamber are given adequate pre-notice, okay,

4 adequate notice of that.

5 So -- all right. We have sorted that out, and I thank you so much

6 for being so cooperative.

7 Mr. Lazarevic, earlier on I asked you and you replied that you

8 needed some time to consult with Mr. Borovcanin. Shall we proceed with

9 his pleas now?

10 MR. LAZAREVIC: Yes, Your Honour. I had the opportunity to

11 discuss this with Mr. Borovcanin during the break and he's ready to enter

12 pleas.

13 JUDGE AGIUS: I thank you so much. I thank you, Mr. Lazarevic.

14 Mr. Borovcanin, you may remain seated for the time being and then

15 when I ask you to stand up, please do so.

16 I want to make sure, but already we have an indication from

17 Mr. Lazarevic that you have -- you have, first of all, received a copy of

18 the consolidated amended indictment in your own language or in a language

19 that you can understand. That's the first.

20 Secondly, I want to know whether you have read it.

21 Thirdly, I want to know whether you understand the import of the

22 two counts, counts 1 and 2, as that you will be asked to enter a plea

23 upon, and lastly whether you are prepared to enter a plea today.

24 So let's take them one by one. Have you received a copy of the

25 indictment in your own language?

Page 280

1 THE ACCUSED BOROVCANIN: [Interpretation] Your Honour, I have

2 received a copy the indictment in a language I understand.

3 JUDGE AGIUS: Have you read it?

4 THE ACCUSED BOROVCANIN: [Interpretation] Yes.

5 JUDGE AGIUS: I take it that you have had also time and

6 opportunity to discuss the indictment and your prospective plea with your

7 counsel? You've had the facility, the possibility to do that?

8 THE ACCUSED BOROVCANIN: [Interpretation] Yes.

9 JUDGE AGIUS: Do you understand the import, the legal significance

10 of the two counts that you will be asked to enter a plea upon today; count

11 1 and count 2?

12 THE ACCUSED BOROVCANIN: [Interpretation] Yes.

13 JUDGE AGIUS: And are you prepared to enter a plea today?

14 THE ACCUSED BOROVCANIN: [Interpretation] Yes.

15 JUDGE AGIUS: Thank you, Mr. Borovcanin. According to our Statute

16 and our Rules, you have a right to have these, count 1 and count 2, read

17 out to you in their entirety. There's no point in even referring to

18 reading the entire indictment again because we are dealing just with

19 counts 1 and 2. Do you wish to have these two counts read out to you in

20 their entirety or do you waive this right and we can proceed with the

21 relative questions as to what you wish -- what plea you wish to enter?

22 THE ACCUSED BOROVCANIN: [Interpretation] I waive the right.

23 JUDGE AGIUS: Thank you so much, Mr. Borovcanin. What I will be

24 doing is that I will proceed with asking you whether you -- what -- what

25 plea you wish to enter to each of these two counts. I will start with

Page 281

1 count 1. Your answer should be guilty or not guilty. You also have the

2 right to remain silent, in which case we will enter a plea on your behalf,

3 a plea of not guilty on your behalf.

4 Count 1 of the indictment as it now stands charges you with

5 genocide, punishable under Articles 4, 3(A), 7(1) and 7(3) of the Statute

6 of this Tribunal. How do you wish to plead to this count 1 of the

7 indictment, that is charge of genocide; guilty or not guilty?

8 THE ACCUSED BOROVCANIN: [Interpretation] Your Honours, I'm not

9 guilty.

10 JUDGE AGIUS: I thank you, Mr. Borovcanin. And count 2 charges

11 you with conspiracy to commit genocide which is punishable under Articles

12 4, 3(B) and 7 (1) and 7(3) of the Statute of the Tribunal. How do you

13 wish to plead to this count 2 of conspiracy to commit genocide; guilty or

14 not guilty?

15 THE ACCUSED BOROVCANIN: [Interpretation] Your Honours, I am

16 convinced that I am not guilty.

17 JUDGE AGIUS: I thank you, Mr. Borovcanin. You may sit down.

18 Madam Registrar, could you please enter into the records of the

19 case that Mr. Borovcanin has pleaded not guilty to both count 1 and count

20 2 of the second consolidated amended indictment.

21 THE REGISTRAR: Yes, Your Honour.

22 JUDGE AGIUS: I thank you, Madam.

23 So you know that tomorrow there will be the official start of the

24 trial, and we have already agreed that opening statements will be -- start

25 on the 21st of August. I don't -- I think you need to understand that

Page 282

1 there are no changes anticipated to that, and I think we can, because of

2 that, proceed to discuss now the conduct of trial, and there are very --

3 various issues that I on behalf of the Trial Chamber would like to raise.

4 Let me introduce this subject very briefly as follows:

5 Practically every counsel sitting in this courtroom has had vast previous

6 experience in other cases before this Tribunal. You also know that it has

7 been the practice until now in various, although not in every Trial

8 Chamber, to proceed with annunciation and enunciation of guiding

9 principles relating to presentation of evidence, admission of evidence,

10 conduct during the trial. It is well charted territory, and we've

11 discussed it amongst ourselves, but you are all pretty much aware of what

12 the applicable rules and practice of this Tribunal have been because

13 you've been working here for quite a few years. So we came to the

14 conclusion that we would be almost offending your intelligence if we were

15 to repeat once more in this -- now in this trial, guidelines that you are

16 already very much familiar with.

17 There are some issues, however, that are particular to a megatrial

18 like this that need to be addressed, and of course we have no right to

19 take for granted that issues that have been dealt with previously in these

20 standard guidelines may not be the subject of queries on your part or that

21 you may not require further elucidation on some of them, or guidance,

22 guidance on some issues that we may not have anticipated.

23 One of the first things that I wish to deal with is that the

24 estimated time of -- for the completion of the Prosecution case partly

25 depends on what our decisions on the Rule 92 bis and adjudicated facts

Page 283

1 motion will be, but then it also depends on the length of each

2 examination-in-chief and also and particularly so on the length of the

3 cross-examination considering that we have seven Defence teams now.

4 There is another related aspect to this issue that we will be very

5 shortly discussing, and that is that before the Prosecution is in a

6 position to know when to call the next witness and the next witness and

7 for us to be able to plan ahead, we would need to know what time would be

8 required for the cross-examination of each and every witness. This is

9 something which is so obvious but so fundamental that it requires that we

10 deal with it today in the first place, and the beacon that shows us the

11 way is more or less the decision that has been handed down by the Appeals

12 Chamber recently in the Prlic appeal, namely that the rule of the thumb

13 should be flexibility.

14 So let's start with the Prosecution. Of course you will be

15 planning ahead, and your plans will depend on several contingencies over

16 which sometimes you have control, sometimes you don't. What we require

17 from you, and we'll also, of course, obviously ask for your feedback on

18 this, is that on a weekly basis, on an ongoing basis too, but on a weekly

19 basis, on a particular day to be established now of the week, you will

20 need to provide the Defence teams and the Trial Chamber with the witnesses

21 you intend to bring forward.

22 Now, initially let's start, because I'm dealing with a weekly

23 document. I should have started with the monthly document. That's where

24 you should start. Basically you should give an indication of what your

25 intentions are for the next month, for the following month as we go along.

Page 284

1 That would indicate the names of the witnesses, reference maybe also to

2 the proofing chart as to -- or any developments as to the subject matters

3 that they will be dealing with, estimated -- estimated time required by

4 the Prosecution for examination-in-chief for -- or direct, as you call it

5 in your country. That would provide enough information for the Defence

6 teams to be able to come back on their part with an estimate of how much

7 time they require for cross-examination.

8 Now, where flexibility comes in is obviously because there are

9 some witnesses that will come forward that would testify only on matters

10 that are of concern or that relate only to one or more of the accused.

11 There are witnesses that will come forward that will testify on matters

12 that directly involve all the accused. And therefore, we cannot establish

13 a hard and fast rule as from now as to how much time will be required for

14 cross-examination. We will have to deal on a case-by-case basis as we go

15 along, both on the case of the Prosecution and in the case of the Defence,

16 as we an along, depending on what the subject matter of the witness -- of

17 the testimony will be.

18 When we have that, and you also have an indication of what -- what

19 the duration of the estimated cross-examination will be, or is, then

20 obviously you can plan better, and that's where the weekly report or

21 prognosis will come into the scene, into the picture. There you should

22 already have an indication of how many witnesses you should bring in any

23 particular week. The whole idea is that we don't only -- we do not only

24 economise on time, but we also try to economise on the resources of the

25 Tribunal. There is no point in having three witnesses here in town if the

Page 285

1 situation is such that you are going only to be able -- or that we are

2 only going to be able to hear the testimony of one or two. So there is no

3 point, as has happened in the past, of having one witness stay here an

4 entire week or more. So we will need to do plenty of case management

5 together.

6 We are guaranteeing to you flexibility, but we are also expecting

7 from both of you to be practical. We will use all the powers that we have

8 as it may or as they may become necessary in the case of, for example,

9 repetitive cross-examinations and so on and so forth. I mean, when we

10 first met after the joinder of the various accused -- you remember,

11 Mr. Bourgon, I had mentioned this, and I had enjoined you to start

12 thinking about this. You will need as you go along to rally your

13 resources and agree as to the best way of going about cross-examination of

14 various witnesses.

15 Where it will be necessary for each and everyone to have all the

16 time required for cross-examination, you will get it. Where it is not

17 necessary, we will need to determine or cut down as we feel should be the

18 case.

19 The same applies to the Prosecution, of course. The Prosecution

20 will come forward and -- with an estimate of how much time they require

21 for each witness. If it is necessary to discuss the matter with you,

22 we'll discuss it in open court. I think our experience, those of us who

23 have been here in the past, is that in these matters we've found

24 cooperation -- cooperation when it was needed to cut down on time

25 allocation, we could do so.

Page 286

1 Having introduced the subject the way I have, may I on behalf of

2 the Trial Chamber ask you for an input. Later on, and precisely tomorrow,

3 we hope to be able to come down with a set of guidelines that primarily

4 would deal with such important issues like what I have just intimated now.

5 So basically, we would like to hear your opinions on how -- on

6 your part how the Prosecution should -- what facilities the Prosecution

7 should have for a proper examination-in-chief, and the same with regard to

8 cross-examination time that will need to be allocated.

9 Yes, Mr. McCloskey.

10 MR. McCLOSKEY: Mr. President, we in the past have been able to

11 provide reliable lists for about two weeks of witnesses, and we've been

12 able to give reliable lists of exhibits to be used in those -- for those

13 witnesses two days before any witness testified.

14 And as for length of witnesses, we should for -- have hopefully

15 reasonable time estimates. Many of the crime base people are pretty

16 consistently two hours in direct. Mr. Butler and Mr. Ruez will take a

17 while, and it's having this many -- well, Mr. Butler -- Mr. Ruez should

18 take several -- four or five days, like he usually does. Mr. Butler will

19 have more documents and we're going to have to really sort that out

20 because we've tried to limit his testimony before, but we've had a limited

21 number of individuals, so we've been able to.

22 JUDGE AGIUS: I don't think we are interested in specific details

23 now. What I'm interested in hearing from you particularly is the

24 following: More or less I have projected a scenario whereby you come

25 forward with a list of witnesses you have in mind of bringing along,

Page 287

1 bringing forward. That will be submitted to the Defence. The Defence

2 teams will be required to coordinate, are expected to coordinate amongst

3 themselves and then present you with a -- and of course the Trial Chamber,

4 with an indication of the time required for cross-examination. That

5 should then put you in a position to revise, if at all, your prognosis and

6 say, okay, what -- the number of witnesses I anticipated to bring forward

7 in the month of October, which was eight witnesses, has to now be cut down

8 to four or five because of the anticipated -- then we come into play, we

9 see what the situation is, whether it's the case of intervening or

10 proceeding in accordance with your respective positions.

11 So assuming that you are going to make available your list, your

12 monthly prognosis on the, say, last day of the preceding month -- not the

13 last day of the -- that you are going to present the Defence today with

14 your prognosis for the two months ahead, basically, we're talking, because

15 you would already have provided the list for the upcoming month. So once

16 you have that, how much time you would require before you can -- how much

17 time you would require to have a reply from the Defence team to enable you

18 to provide a revised list.

19 MR. McCLOSKEY: Realistically, Mr. President, I think we're all

20 going to be so new that until we see this machine at work it's going to be

21 very difficult to make any estimate based on what the Defence tells me.

22 JUDGE AGIUS: Fair enough. Let's deal with it in a practical

23 manner. We will start with the testimony in the month of August. Now, I

24 suggest that between now and a date which you will -- which you will

25 yourself establish today, you will come forward with a list of witnesses

Page 288

1 that you intend to bring forward, which you already have, basically, for

2 the months of August and September. Now, that list, please update it to

3 see whether it has changed or whether it has remained the same by a date

4 that you will be telling, saying now. You will have it at the disposal --

5 you'll make it available to the Defence teams with a copy to us.

6 How much time would the Defence teams need, after mutual

7 consultations amongst you, to decide on the estimated time of

8 cross-examination for each of the intended witnesses? In other words, how

9 much time do you need to provide the Prosecution -- if we say -- do you

10 have any opinions on this? I mean, have you discussed it amongst

11 yourselves?

12 MS. CONDON: Your Honour, may I make some submissions in relation

13 to this? Your Honour, having read the decision of the Appeals Chamber in

14 Prlic, perhaps can I seek some clarification from the Trial Chamber as to

15 what the approach would be.

16 JUDGE AGIUS: The approach is flexibility, I told you already. We

17 will give you an indication too, very soon, but --

18 MS. CONDON: Perhaps what I'm specifically asking is that it seems

19 that in Prlic, unless there is some agreement having been reached between

20 Defence counsel, then the Trial Chamber will impose the 60 per cent rule,

21 if I can refer to it as that. As far as our position is concerned on

22 behalf of Mr. Popovic, I certainly haven't had the opportunity to discuss

23 amongst my --

24 JUDGE AGIUS: Yes, but you are a newcomer. You've just arrived.

25 MS. CONDON: I've just arrived, but I appreciate what Your Honour

Page 289

1 is saying insofar as the flexibility is concerned. Could I make this

2 point on behalf of our client: No doubt there will be certain witnesses

3 that are more significant in the case as against him than others.

4 Cross-examination is difficult to estimate in the most ideal of

5 circumstances, and it would be my position that with those witnesses that

6 are of more significance to our case as we identify them, that I would

7 certainly be more than happy to firstly engage in consultation with my

8 learned friends as to what they expect in terms of cross-examination of

9 that witness, and insofar as the Prosecution is concerned that as long as

10 obviously sufficient notice is given as to when that witness is to be

11 called I would certainly be in a position to indicate then, with as much

12 clarity as I can, how long I expect to take with that witness. And rather

13 than having the 60 per cent time allocation imposed, it would certainly be

14 my preference to have the opportunity to have the flexibility amongst my

15 co-counsel and obviously the flexibility with the Trial Chamber. So

16 that's --

17 JUDGE AGIUS: Thank you for your submission. Mr. Bourgon, you

18 have a submission to make too?

19 MR. BOURGON: Thank you, Mr. President. We did briefly explore

20 the topic in a meeting recently between Defence teams. Basically what

21 you've just mentioned, first we'd like to say that we very much like the

22 flexibility approach, and if the Chamber grants us that flexibility, we in

23 return will grant the Trial Chamber all of our assistance and time in

24 terms of limiting our cross-examination. That being said, in practical

25 terms, for the first list of witnesses, we would propose the Prosecution

Page 290

1 to give us that list on the 4th of August, at the same time as the last

2 indictment or the final indictment, for the list for August and September,

3 and within five days we can return and provide both the Prosecution and

4 the Trial Chamber with a total time of cross-examination, not by witness,

5 simply to keep each of our trial strategies intact, but to have a total

6 time. And then should the Trial Chamber decide to engage us and look into

7 our submissions, then we'll be gladly then to explain further. Thank you,

8 Your Honour.

9 JUDGE AGIUS: I thank you, Mr. Bourgon. The message -- and I'm

10 really appreciative, and I'm sure Judge Kwon and Judge Prost and Judge

11 Stole will agree with me, I'm really appreciative that the words I said in

12 the first days of -- after the joinder did not fall on deaf ears and that

13 you have been proactive, and it's not just you, Mr. Bourgon, but it seems

14 all the Defence teams. And that is a good signal that the Trial Chamber

15 will expect good cooperation from you.

16 The message that we need to send loud and clear is that when you

17 have a trial of these dimensions -- of this dimension with seven Defence

18 teams, good case management cannot allow for a situation to obtain which

19 would not be conducive to a proper conduct and expeditious conduct of the

20 trial.

21 One such negative situation would be if we were to allow each and

22 every one of you to go separately, when it comes to cross-examination,

23 expecting -- expecting that there should be no imposition of any kind and

24 that each one of you is not prepared or would not be prepared to consult

25 or enter into consultation with other Defence teams for the purpose that I

Page 291

1 have explained earlier.

2 So let's -- I see Mr. Haynes. Yes.

3 MR. HAYNES: Your Honours, you've probably gleaned the Defence do

4 cooperate with one another, and they cooperate with the Prosecution in

5 this case, and Your Honour has correctly identified, as it were, the evils

6 of trial mismanagement that we're seeking to avoid in any protocol that we

7 establish. And I simply wondered whether I could make one practical

8 suggestion.

9 JUDGE AGIUS: Yes, Mr. Haynes.

10 MR. HAYNES: Your Honour was about to say that the Prosecution

11 should provide by the end of every month its proposed list of witnesses

12 for the following month, and given what Mr. Bourgon has said, it seems to

13 me that there is a potential improvement to that suggestion, which is

14 this: That the Prosecution should provide, say by the midpoint of every

15 month, the witnesses that they propose to call for the following month.

16 So they would provide by the 15th of September the witnesses they propose

17 to call in October. (redacted)

18 (redacted). But then seven days after

19 that, the Defence should fill in their section on the form. And if the

20 then completed, as it were, witness summaries lead the Prosecution to the

21 inevitable conclusion that they've got too many or too few witnesses on

22 the schedule for that month, it can be duly amended.

23 I hope that is a helpful suggestion.

24 JUDGE AGIUS: I think it is an extremely helpful suggestion,

25 Mr. Haynes. Basically, however, it is predicated on the commitment also

Page 292

1 on the part of the totality of the Defence teams to meet the seven-day

2 deadline, because otherwise the whole exercise will fall to pieces.

3 Are there any further submissions that you would like to make?

4 Should there be, for example, as a guiding principle, a ratio between the

5 time that should, on principle, be available for cross-examination

6 purposes in relation to the time taken by -- by the Prosecution in chief?

7 In other words, for example, Ms. Condon mentioned the 60 per cent, et

8 cetera. We are a larger number of Defence teams in this case to start

9 with. Are there any submissions? Yes, Mr. Haynes.

10 MR. HAYNES: It's just a fairly significant matter. Can we go

11 into private session, please?

12 JUDGE AGIUS: Let's go into private session, and I think I

13 anticipate what you are going to mention.

14 [Private session]

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 [Open session]

Page 293

1 JUDGE AGIUS: Yes, Mr. Bourgon.

2 MR. BOURGON: Thank you, Mr. President. With respect to your

3 latest question, I would like to make the following suggestion: Simply

4 that for the beginning of the trial not to set such a ratio and let's try

5 and see how the Defence can cooperate with each other. It is very

6 important for all of us, and we discussed this at our last meeting, that

7 we have separate defences. There are separate accused, and each of the

8 Defence team will be minding carefully the interest of their own clients.

9 That is, of course, a basic for us.

10 Now, that being said, we will try to cooperate and, as much as we

11 can at the beginning, then we will suggest not to have any ratio, provide

12 the Trial Chamber as well as the Prosecution with a total time for

13 cross-examination for each witness, and this would then in turn allow the

14 Trial Chamber to see if we are reasonable or not.

15 JUDGE AGIUS: Yes. Thank you, Mr. Bourgon. Yes. Let's make it

16 clear, because I think we are speaking the same language.

17 MR. BOURGON: Yes.

18 JUDGE AGIUS: Basically, we do anticipate the possibility that

19 here comes a witness and all of a sudden two or three of you will have

20 very much conflicting interest, or a situation where you have conflicting

21 interests. At that point in time, expect the Trial Chamber to be not only

22 flexible but also reasonable. And we expect you to be the same. And

23 please do understand that these are not the problems. The problems are

24 case management ones. We want to avoid by all means a situation whereby

25 the message or the signal could be perceived -- transmitted or perceived

Page 294

1 that this is a sort of a free-for-all and, you know, there is absolutely

2 no control with each Prosecution witness that comes forward, if he or she

3 has been on the witness stand testifying for four hours, then every single

4 Defence team will say we demand, we claim equal treatment, four hours

5 each. I mean, because that will obviously be unacceptable. But it could

6 well be the case that it becomes necessary on particular occasions.

7 So I agree with you. We will need to play it by the ear and on a

8 case-by-case basis, witness-by-witness basis, but what I'm asking you is

9 the following: That the first step to avoid at all costs sending out an

10 ambiguous message that flexibility is unlimited and without any kind of

11 restraint, should it not be the case that we at least indicate to you and

12 to the Prosecution that if considering that we are seven Defence teams

13 here, and assuming a situation of normalcy, not a situation where there is

14 a conflict of interest or where obviously it is imperative that each one

15 of you goes ahead with a cross-examination, that there should be a beacon,

16 a guideline, that the ratio should be, for example, as a guiding line one

17 hour in chief, then it should be, for example, one hour, one and a half

18 hours cross-examination time, two hours cross-examination. This is what

19 we would like to hear from you.

20 Then obviously the rule of the day, I mean the practice will be

21 flexibility first and foremost but within a sort of self-imposed restraint

22 that we are asking you to comment about.

23 Yes, Mr. McCloskey.

24 MR. McCLOSKEY: Mr. President, I think the recent decision on that

25 point was a good one. I think the one-on-one guideline is a very good

Page 295

1 rule of thumb, with flexibility, as you will be in the best position to

2 recognise, but I think we all have been around enough that we can't really

3 trust ourselves and our ability to hold ourselves back, especially when

4 there's different interests. So I think discipline is going to be

5 critical for all of us, and without a clear guideline and a clear rule, a

6 flexible rule, we're going to get in trouble right off the bat. And we

7 will be calling surviving witnesses, people that survived mass executions,

8 that have testified twice before, some of them, and it will be very

9 difficult if we don't have some pretty good guidelines from the beginning.

10 JUDGE AGIUS: Exactly. This is why, Mr. McCloskey, we are dealing

11 with this in as exhaustive a manner as possible. And we are -- as you've

12 said, we've been here long enough to know that sometimes anticipated time

13 frames change during the course of the testimony itself. Sometimes it

14 takes a shorter time, sometimes more time is required, and that's where

15 flexibility becomes important.

16 Now, there were instances where we obviously we have in the past,

17 and also in the future, where we need to cut down, say no, Mr. Nicholls or

18 Mr. McCloskey, you need to finish by the end of today and not any further,

19 as Mr. Nicholls experienced in the previous trial, in Brdjanin, and the

20 same will apply to the Defence. I mean, the anticipated time frame for

21 the cross-examination may vary, depending on what the examination-in-chief

22 reveals. I mean, sometimes there are questions that will not be asked.

23 Sometimes there are new issues that come up that will require more time.

24 So this is why we are saying there will be flexibility, that was

25 -- is what we are aiming at. But we also need to have a guideline, an

Page 296

1 indication that ideally this is how it should be, and then we will move

2 beyond or within, according to the exigencies of each particular evidence

3 or -- or testimony or witness.

4 JUDGE KWON: Mr. McCloskey, no doubt I think I can understand you

5 would go for a one-on-one guideline, but what would you suggest in case of

6 witnesses whose direct evidence will be adduced in part or whole in

7 writing? What would be your recommendation?

8 MR. McCLOSKEY: A 92 bis witness, for example.

9 JUDGE KWON: Or 89(F).

10 MR. McCLOSKEY: 89(F). We have submitted a few 89(F) witnesses.

11 That is not my choice, frankly, but I want -- because I want you to be

12 able to hear the full nature of their evidence, but I think you do have to

13 allow beyond the one-on-one principle if it's -- they need to be able to

14 cross-examine on the material that's in the paper, and that would give --

15 you would give the Defence in that situation more than the ten minutes

16 that you may have given the Prosecution. I have no objection.

17 We would probably look at that 89(F) and try to compare him to a

18 similar live witness. For example, if we had a survivor witness that we

19 spent two hours going through the whole Orahovac case as opposed to an

20 Orahovac witness that just said the basics and we relied on 89(F), they

21 could take the two hours of what the former took if they felt they needed

22 it. I don't think I would have any objection to that because of course

23 you're right, they have to rebut the written evidence as well.

24 JUDGE AGIUS: I thank you, Judge Kwon, and I thank you,

25 Mr. McCloskey.

Page 297

1 Any further remarks or submissions on this issue? Yes,

2 Mr. Bourgon.

3 MR. BOURGON: Thank you, Mr. President. My earlier submission to

4 Your Honours was to wait until we set that ratio. Setting the ratio now

5 in the abstract is kind of difficult. Whether we say 1.5, as happened to

6 one of my case I was in, or one-to-one, I think it's a bit early now to

7 set a ratio without knowing how the dynamics of the trial will unfold.

8 Now, what I'm able to tell you now, based on the conversations

9 we've had together, if we provide the Prosecution within five days of the

10 duration of each cross-examination in total by witness, the Trial Chamber

11 has those witness summaries, the Prosecution can say, "I think this is too

12 long," as the Trial Chamber can say, "I think the Defence is overdoing

13 it." And after the first month we'll know right away where we are in

14 kinds of ratio after one month. I simply suggest we wait a month for that

15 ratio, and then should there be a need to say the Defence is overdoing it

16 or the Defence is perfectly cooperating, then we'll be in a much better

17 position in a month to set that ratio, given that we provide in five days

18 the total time of cross-examination for each witness. Thank you, Your

19 Honour.

20 [Trial Chamber confers]

21 JUDGE AGIUS: Yes. I thank you, Mr. Bourgon. Any further

22 submissions?

23 Okay. So let me try and recapitulate. Ideally, forget the first

24 batch. That's end of September. I think we have discussed that, and we

25 can proceed along the lines suggested. You will provide the Defence teams

Page 298

1 not later than the 4th of August with an updated list of the witnesses you

2 intend to bring forward during the month of August and September. Then

3 within five days, let's say within a week, not later than a week - and I

4 need your commitment on this - you will come back to the Prosecutor with

5 your estimate of time required for cross-examination. On the basis of

6 that, you will consider whether the list needs to be updated or not.

7 That will cover us until the end of September. Now, as far as

8 October and subsequent months are concerned, the suggestion is, and I

9 think it's a practical one, that on the middle of September you will

10 provide with the anticipated list of witnesses for the month of October.

11 Within seven days, the Defence teams will feed you back with their

12 estimate, and then we will work on that to have the updated list for the

13 month of October. Similarly, mid-October you will provide for the month

14 of November, and so on and so forth.

15 Is that agreeable to the parties?

16 MR. McCLOSKEY: Absolutely, Your Honour. And just to clarify, I

17 take it you're planning five days a week, one session? I don't think we

18 have enough room for two sessions.

19 JUDGE AGIUS: No, no. It's out of the question, because we are

20 sharing this courtroom, Prlic trial and this trial, and there is no way we

21 can sit. We can't sit in another courtroom, either of us.

22 But I am coming to the question -- the other question that you

23 have raised at the end of this -- of this part.

24 So do I have the agreement of both sides to this arrangement?

25 JUDGE KWON: Can I check, Mr. McCloskey, whether, instead of

Page 299

1 producing a monthly list once a month, about updating the monthly list

2 every week. That is another -- that would be possible as well.

3 JUDGE AGIUS: Yes. I'm coming to that precisely, because --

4 MR. McCLOSKEY: That's actually, as you know -- the way it turns

5 out, that's a more realistic, in a sense, way because if we have a month

6 list, (redacted) we find the various issues, and there's a

7 little of juggling going on, we were pretty reliable for our two weeks

8 ahead of time. After about two weeks, our list started getting a little

9 bit not as credible, but we can update it.

10 JUDGE AGIUS: You are two of a kind, you and Mr. Haynes.

11 Yes. What Judge Kwon rightly raised is actually my next point.

12 Moving from the monthly list, then we need to establish again another

13 protocol which will deal with the presentation of testimony, of evidence

14 on a weekly basis. Now, there we need to elaborate a little bit further.

15 It's not just the list of the witnesses that you anticipate and the time

16 frame you require, which I acknowledge can vary, especially after proofing

17 of witnesses, but also an indication of the documents that you intend to

18 use, and again I acknowledge that sometimes the documents that you will or

19 not -- you will not be using depends very much on the outcome of the

20 proofing.

21 Now, there are various things that happen just before a witness

22 starts testifying. The last phase is the proofing. Usually the practice,

23 as far as I know it in other cases, has been that you would then provide

24 the Defence teams with proofing -- proofing notes for their own purposes,

25 especially if there are new issues that are going to be dealt with if the

Page 300

1 witness has made other statements that were not previously contained in --

2 elsewhere, and so on and so forth. I don't need to elaborate on that.

3 What we require from you is disclosure of these proofing notes to

4 the Defence teams in a timely fashion, and we are interested in two

5 things. First, because it's only fair that it is done this way.

6 Secondly, because if it is not done this way, we will come here and spend

7 the first part of the morning exchanging accusations of bad faith,

8 manoeuvring, and so on and so forth. So I think I have sent the message

9 loud and clear. We will not be incorporating this in any written

10 guideline, we are just enjoining you to adopt this as the practice.

11 Similarly, I am sure that none of us will like a situation to

12 obtain where we come here on any morning only to find out that the Defence

13 team have just been informed a couple of hours before, if not a few

14 minutes before, or by a note thrown in the respective letter boxes during

15 the night that there will be new documents that will be used during the

16 testimony. That would create again attrition and aggravation, and we

17 should try to avoid the occurrence of such instances as much as possible.

18 I know that it could happen and it will probably happen at times, but the

19 important thing is that you try as a team, as an entire team, to avoid

20 this happening as much as possible. What I want to make sure is that when

21 we meet every morning or every afternoon here for a sitting to hear

22 testimony of a particular witness, the Defence teams know beforehand well

23 and in a timely fashion which documents you will be making use of. Then,

24 of course, what happens later is -- you can decide not to make use of one

25 or more documents, depending on how the examination-in-chief unfolds, but

Page 301

1 that's normal. So that's number two.

2 I'm going, again, backwards up to -- so do you think that if I

3 were to suggest that by not later than Thursday of each week you should

4 provide the Defence teams with an anticipated layout of testimony and

5 documents, time frames and everything anticipated for the following week,

6 that is a deadline that you can reasonably meet from week after -- one

7 week after the other?

8 MR. McCLOSKEY: I don't see any problem. We have to know that

9 ourselves, with the only caveat that sometimes it takes us up to maybe two

10 days before a witness, before we have a reasonable document list, but we

11 will always -- we always manage to get it two days before any witness and

12 we'll endeavour it make it sooner if we --

13 JUDGE AGIUS: But it changes, Mr. McCloskey. We all know that.

14 [Trial Chamber confers]

15 JUDGE AGIUS: Yes. As regards proofing notes, let's make one

16 thing clear: That proofing notes that I referred to are required for the

17 Defence teams, not for us. We don't want to see proofing notes unless and

18 until there is a controversy on whether adequate disclosure of new

19 information was given to the Defence team, and then maybe we need to have

20 a look at what kind of proofing notes you have. But let's hope that need

21 will never arise. It has arisen in Oric, it has arisen in quite a few

22 cases. Yes.

23 MR. McCLOSKEY: I can make one point: We, as you've seen from our

24 witness list, there are many, many witnesses that are Bosnian Serb army or

25 police officers, and many of those will be adverse to the interests of the

Page 302

1 Prosecution, perhaps, but have made statements before, and my experience

2 in previous cases, there can be more change for those witnesses than there

3 are others, so the proofing notes may be a little more complex. Hopefully

4 not, but that's -- it's going to be more than I've ever put on in any

5 case. So I wanted to just let you be aware of that.

6 JUDGE AGIUS: All right. I thank you so much. Are there any

7 submissions you would like to make on this area that I've touched upon

8 before I --

9 MR. McCLOSKEY: I know we're not to the Defence case yet, but --

10 JUDGE AGIUS: We'll be coming to that at the right time,

11 Mr. McCloskey. I mean, they will get the same treatment. They will get

12 the same treatment. They will eventually be required to meet the same

13 requirements.

14 So the -- summing it up: Thursday of every week you will furnish

15 an updated list of witnesses, estimated time, matters that will be dealt

16 with to make sure that nothing has changed, list of documents that will be

17 used. Understanding is that it's granted that the list may change between

18 that Thursday and the day when the witness arrives to give testimony. And

19 as the day approaches for the testimony, then the question of the proofing

20 notes and any changes in the list of documents or any other changes that

21 are -- all right. I thank you.

22 Now, something that we wish to raise now. Basically, the

23 situation is that it seems that all the documentary evidence that so far,

24 according to the 65 ter filings, the Prosecution intends to bring forward

25 in the course of its case have been disclosed. It is quite possible that

Page 303

1 some of these documents may attract your attention more than others and

2 that you may wish to challenge either the admissibility of these documents

3 or you may be -- you may wish to challenge the authenticity of some of

4 these documents. Some documents may be more important than others, but

5 the more important they are, the more important it becomes for good case

6 management that if you have reasons to object to those documents, you come

7 forward with your objections the earliest possible. It's not correct, for

8 example, let's say, that if one accused has made -- has released a suspect

9 interview to the Prosecution and you as counsel wish to contest the

10 admissibility of that statement or interview you would leave it until the

11 very end of the trial to come forward with an objection after that that

12 statement has been put to several witnesses and so on and so forth. So

13 again, this is one area where we cannot impose a hard and fast rule

14 because no hard and fast rule is envisaged in the Rules of Procedure and

15 Evidence themselves, but it's an area where we are asking you to extend

16 your cooperation to the best possible, to the best possible. If there are

17 documents that you intend to contest -- to contest or to challenge, then

18 the latest that you should aim at -- for the purpose of contesting them

19 should be when that document first -- is first intended to be used with

20 any particular witness and not then surprise the Trial Chamber and the

21 Prosecution afterwards with -- with challenges late in the day.

22 Any submissions on this? Yes, Mr. Haynes.

23 MR. HAYNES: None of us yet -- it's really an allied point rather

24 than a submission directly to the point, but none of us yet for the

25 Defence have been trained to use the e-court, but I wonder whether at this

Page 304

1 juncture, for those of us who have to manage our cases in particular in

2 regard to documents, whether Your Honour would indicate at this stage

3 whether this is a case that's conducted pure e-court or whether it is a

4 case in which you would anticipate those who wanted to put documents into

5 evidence providing you with hard copies as well.

6 JUDGE AGIUS: Yes. We will be coming to that at the end of this

7 Pre-Trial Conference, but I can anticipate, yes, and I can also anticipate

8 that we have already taken -- made all the arrangements for each one of

9 you to receive all the adequate training required before the opening

10 statements. That will happen in the week starting on the 14th. In other

11 words, we will be receiving training, our staff will be receiving

12 training, and you will be receiving training, all of you, one team after

13 the other. So I want to put your mind at rest on that. And the trial,

14 yes, will be conducted on a pure E basis, however, we will require one

15 hard copy of -- for the Trial Chamber, one hard copy of all the documents

16 that will be tendered except when we say, no, we don't need this. So

17 that's the position, but we'll come to that at a later stage.

18 Yes, Mr. McCloskey.

19 MR. McCLOSKEY: Yes, Mr. President. I just wanted to reiterate

20 the importance of what you had said for the Prosecution, because if there

21 are going to be challenges, for example, to the authenticity of document

22 collections, we have not anticipated that, and we have not put on perhaps

23 the several witnesses that may be needed to -- to provide an

24 authentication from any common law set-up. There is never in this case --

25 well, I should never say never, but there has never been the wholesale

Page 305

1 challenge to the authenticity of any collection. The occasional

2 individual document has been challenged, and that's been relatively easy

3 because it's come in through one individual as opposed to a search of a

4 major brigade.

5 Now, we are for the first time dealing with a collection that

6 you're familiar with. I think I referred to it. It's the Drina Corps

7 collection, and it managed to come into the possession of the Prosecutor

8 under some rather interesting circumstances. We believe, from our review,

9 it is valid and authentic, and if there is going to be a challenge, we

10 need to know it now because that could involve lots more witnesses or --

11 or statements or however the Court would like us to do it. That same goes

12 true of statements of accused if -- which we have two at this point. Any

13 challenges, we would be needing to provide the basis that these statements

14 were made under the rules and voluntarily. And without that challenge, it

15 wouldn't be our intention to go through all that process in order to save

16 time. So I appreciate any foreknowledge so that we can prepare for that.

17 The individual document shouldn't be a problem, but the collections and

18 large-scale things, witness statements, big pieces, we need to know now.

19 Most systems require that to be up-front, but as you stated, our system --

20 JUDGE AGIUS: Our system doesn't address the problem, or the

21 issue. What I can tell you is this: In previous cases in which I have

22 been involved, when the issue of, for example, chain of custody or the

23 manner in which the various documents or some collections came in the

24 possession of the Office of the Prosecutor was raised, then even though

25 the Prosecution had not indicated any particular witness to testify on the

Page 306

1 chain of custody or on the way of recording the entry, receiving and entry

2 and custody of these documents at your office, then of course the

3 Prosecution was provided with all the opportunity, but again it was

4 time-consuming. It was time-consuming.

5 So, please, my appeal to you is as follows: Agreed there may be

6 instances where information that will open your eyes and lead you to

7 challenge the authenticity of a document or the admissibility of a

8 document may not be available immediately at the start of the trial but

9 may arrive later on. That is quite possible. It can happen. But we are

10 not talking of those instances. What we're talking about is that now you

11 have available already a list of all the documents that the Prosecution

12 intends to adduce in this case. If you have reason to challenge any of

13 those documents, please come forward with your objections at the earliest

14 possible and do not leave that until later in the day.

15 Any submissions? Any comments? Any disagreements with -- I see

16 that even Mr. Ostojic agrees. Thank you, Mr. Ostojic.

17 So we expect your cooperation -- your cooperation in this.

18 Yes, Mr. Bourgon.

19 MR. BOURGON: Thank you, Mr. President. At this time I would

20 simply like to make a rapid submission regarding the admissibility of

21 documents or the way in which a Chamber intends to proceed with regards to

22 declaring or pronouncing on the admissibility of documents. Now, this is

23 an issue that keeps up -- coming up in many trials and many different

24 Trial Chambers have adopted a different mechanism.

25 Now, I understand from what you have said earlier that you intend

Page 307

1 to proceed a la piece, or as the witness come, then the Chamber would

2 declare the documents admissible at the end of the testimony of each

3 witness. This is certainly the way we would prefer as the Defence team of

4 Drago Nikolic, and we would like to know if that is indeed the case, that

5 documents will be declared admissible only at the end of the testimony of

6 each witness.

7 The second question --

8 JUDGE AGIUS: Go ahead. I didn't know you had a second --

9 MR. BOURGON: Second question, Your Honour, is that of course this

10 will leave a bunch of documents that have not been introduced through

11 witnesses, what the Prosecution called the self-propelled documents, what

12 I call the orphan documents. Now, what will be the procedure for -- to

13 admit these documents on the record? Thank you, Your Honour.

14 JUDGE AGIUS: Let's deal with the two aspects separately. Let's

15 take the first one.

16 The position that the Chamber, of course, can take it for granted

17 that we have discussed the first part at length. The position that will

18 be taken is as follows: If a particular document or if a particular

19 collection of documents, for example, are challenged as inadmissible, then

20 you will be asked to make submissions and we will come down with a

21 decision as to whether they should be -- they are going to be admitted or

22 not. The criteria that we will use will eventually be spelled out in the

23 respective decision or decisions that we will hand out from time to time.

24 As to the rest, if Prosecution comes tomorrow and seeks to tender

25 this document, unless we hear any objection from any of the Defence teams,

Page 308

1 that document will be admitted. That document will be admitted.

2 As to the others that are challenged, there will be a decision.

3 And the decision may end up with marked for identification temporarily and

4 then we will end up, at the end of the trial, during the deliberative

5 stage, exercise, to decide what probative -- on the probative value and so

6 on and so forth, but what we want to make clear is that when issues

7 relating to the admissibility of documents are raised, they will be

8 decided. They will be decided. Whether they will be ultimately the final

9 -- but they will be resolved after the end of the evidentiary stage. You

10 will know from decision to decision.

11 The other matter that you raised was --

12 JUDGE KWON: Self-propelled.

13 JUDGE AGIUS: Yes. The question arose before. Orphaned,

14 self-propelled, call them whatever you like. I think you understand that

15 there can't be a hard and fast rule that a document that has been tendered

16 and admitted which, however, has not been used or put to any witness

17 automatically means that it has no probative value or that the Trial

18 Chamber should not even look at it. That has never been a rule before

19 this Tribunal. You know it as much as I can. That document can

20 ultimately be corroborated by other evidence, by other documents, or it

21 could corroborate other evidence and other documents. So at the end of

22 the day, this is the rule basically.

23 Now, at the end of the day, of course at the end of the trial

24 there can be submissions on what probative value should be given to any

25 documents that have not been put to witnesses, and we will deal with --

Page 309

1 with those issues as and when they arise. There are some legal

2 conclusions to be drawn, obviously, because a document that has been put

3 to a witness and questions asked and answered in relation to that witness,

4 both as regards authenticity and as regards the contents of that witness

5 -- of that document. And the document which has never been put to any

6 witness, we will understand that they cannot be treated the same, but

7 there can be other evidence that could raise the probative value of

8 documents that are not put to any witness.

9 This is the position, and of course we will deal with it as we go

10 along. That's the position.

11 MR. BOURGON: With your permission, Your Honour, I would just like

12 to make that our concern at this time is that on the Prosecution's

13 proposed list of exhibits there are 2.100 exhibits. We anticipate that

14 well over 500 of these documents will not be introduced through witnesses.

15 We would just like to know from the Prosecution when and how they intend

16 to present these documents and when and how the Trial Chamber intends to

17 declare them as admissible. Thank you, Your Honour.

18 JUDGE AGIUS: Well, the ball is in your court, Mr. McCloskey,

19 initially, and then we'll --

20 MR. McCLOSKEY: As is appropriate as the trial unfolds, I hope to

21 cut exhibits, and we have chosen our exhibits -- we've tried to choose

22 them in a targeted way, but I still hope that I will be able to reduce

23 that. But I think when we're talking about large numbers of exhibits,

24 many times we're talking about documents related to some kind of expert

25 report or forensic report or something like that.

Page 310

1 Mr. Butler's report, for example, cites all kinds of documents,

2 and I'm certainly not going to have Mr. Butler discuss every one of those.

3 You'd shoot me by the time I was through with that. But I have chosen a

4 list of about -- well, it's too big right now and it's getting smaller,

5 but 100, 200 documents and/or intercepts that Mr. Butler will discuss, but

6 that will leave several hundred more. But that will be part of his

7 report, cited in his report, not just floating out in the air. I hope not

8 to have too many floating documents. They're not worth much if they're

9 just floating out there.

10 JUDGE AGIUS: That will be up to you, basically. We cannot

11 interfere in the Prosecution's discretion not to tender any documents that

12 they initially indicated as prospective exhibits, but then we'll deal with

13 it.

14 May I suggest something? We don't have -- unless you intend to

15 raise other issues that would engage us for some time, we do not have on

16 our agenda much more. Can I suggest that, rather than having a break now

17 and reconvening in half an hour, we continue and finish, but I need the

18 go-ahead from technicians. I can barely see behind the tinted windows.

19 Well, of course they will need time to change tapes, et cetera, but I

20 don't think it will last us much longer.

21 Do you have any particular submissions that you anticipate will

22 engage us?

23 MR. HAYNES: There is one matter I'd like to raise which may be of

24 some substance, I don't know yet.

25 JUDGE AGIUS: All right, then we have a break. 25 minutes. Thank

Page 311

1 you.

2 --- Recess taken at 5.43 p.m.

3 --- On resuming at 6.16 p.m.

4 JUDGE AGIUS: Yes. Let's proceed. Everyone is here. We would

5 like to raise with you a matter related to the possibility that we may

6 have a number of Rule 92 bis witnesses come forward for cross-examination.

7 One undesirable scenario is that the witness will enter the courtroom, sit

8 wherever he is supposed to sit, or she is supposed to sit, and next thing

9 that happens maybe the Prosecution has a couple of questions that they may

10 wish to put, and then straight cross-examination, and the poor witness

11 sometimes is almost completely unprepared, doesn't even -- it just falls

12 on him.

13 So our suggestion -- and actually it's not just a suggestion, this

14 is how we plan to proceed: When a Rule 92 bis witness arrives to be

15 cross-examined or, even before that, to be asked some additional questions

16 by the Prosecutor, the testimony of that witness should be preceded by a

17 short description by the party producing that witness. In this case if

18 the witness is your witness, Mr. McCloskey, but he's being produced for

19 cross-examination, irrespective of whether you have additional questions

20 to that witness or not, you will be required - you or Mr. Nicholls or

21 whoever will be with you - to make a short presentation describing the

22 substance of the -- his 92 bis testimony, and then we can proceed with the

23 rest. It's a measure that we mean to introduce to make it easier for the

24 witnesses than has maybe been in the past.

25 Tolimir. Tolimir. Tolimir, I think we put -- made our position

Page 312

1 clear last time. We would expect, unless he turns up between now and when

2 we resume in August, we would expect to see his name eliminated from the

3 list of the accused in this case.

4 One other thing that sometimes causes a little bit of problems is

5 that the general rule pertaining to the filing of motions is that motions

6 should be filed publicly. There is no rule which envisages that they

7 should first be filed confidentially. They should be filed publicly.

8 If there is sensitive information or other information that needs

9 to be filed confidentially, that will -- that information will be appended

10 to the motion and marked as confidential but not the motion itself. The

11 motion itself will or can be presented confidentially if there are indeed

12 serious, justifiable reasons for doing so. There are many instances where

13 we, of course, allow the filing of motions in a confidential manner, but

14 the rule should be that they should be filed openly unless there are

15 serious reasons for -- and you would be required to demonstrate good cause

16 when you proceed with filing of a motion in a confidential manner unless

17 it is obvious from the text of the motion itself.

18 Before I proceed, Judge Kwon, are there any issues you would like

19 to raise that I may have overlooked? Judge Prost? Judge Stole?

20 Okay. Let me start with the Prosecution. I'll come to the

21 accused later, but are there any issues that you would like to raise which

22 we may have overlooked?

23 MR. McCLOSKEY: No, Mr. President.

24 JUDGE AGIUS: Defence teams. We'll go -- we'll make the rounds.

25 Mr. Zivanovic for Mr. Popovic first.

Page 313

1 MR. ZIVANOVIC: No, Your Honours. Thank you.

2 MS. CONDON: Your Honour, Mr. President, I have one matter that

3 I'd like to raise and it really relates to the Prosecution's 98 bis

4 obligations.

5 JUDGE AGIUS: 98 or 68?

6 MS. CONDON: 98 -- or 68, Your Honour.

7 JUDGE AGIUS: Because 98 is our obligation.

8 MS. CONDON: I don't want to be making any allegations there,

9 Mr. President.

10 As I understand it, last Thursday at the Status Conference then,

11 the Prosecution indicated that there was some further material in relation

12 to some trials that were being conducted in Belgrade --


14 MS. CONDON: -- and Boston, and as I understand it we were going

15 to receive some indication today as to, firstly, what the status of that

16 material was and, obviously, secondly, when the Defence can expect to have

17 that material.

18 JUDGE AGIUS: Thank you for raising the matter. I never

19 understood the Prosecution to say that they will be providing the

20 information today. What I understood from Mr. McCloskey last time, but of

21 course I will soon give him the floor, that this was being considered by

22 and actively pursued by the Office of the Prosecutor and that further

23 disclosures will follow when the information becomes available. This is

24 how I understood you. If I have understood you wrongly or if you have any

25 further communication to make in relation to these pending cases outside

Page 314

1 this Tribunal, please go ahead, Mr. McCloskey.

2 MR. McCLOSKEY: Thank you, Mr. President. That was my

3 understanding, and we encourage counsel to come ask us directly. We'll

4 tell you the same. I can give you a brief update.

5 I've requested -- the case is Boston is finished. It's gone to

6 verdict in an immigration fraud case, and Mr. Butler testified in that

7 briefly as did, I believe at least one survivor from Branjevo farm, and

8 I've requested the transcripts from the United States, that you get that

9 from a court reporter and it's all hopefully within 30 days, but that goes

10 system to system.

11 Bosnia, I hope you'll all help us with. We talk with them. We

12 have some summaries. We're about ready to send what information we've got

13 from the Kravica warehouse case, and we have information about the

14 collections that we spoke of briefly before we were able to clarify that

15 issue about which collections we're talking about, and I can provide --

16 well, I might as well. The collection in Banja Luka was a new collection.

17 It was found out based on a request for assistance of May this year for

18 Sarajevo-Romanija Corps material for the upcoming case of Galic and

19 Milosevic. They were shown an archive and it turned out this archive had

20 lots of material. They were there last week and we now have a very rough

21 outline of documents. There are several thousand documents that look like

22 they have relevance. We haven't spotted any huge guns, smoking or cold or

23 non-existent, but we -- I'm told that that material will be indexed and

24 ERN'd within three weeks and we'll get to the Defence. But that's new

25 material. There's been a few other false alarms, I believe, of various

Page 315

1 disks of other material about the 28th Division, and we've looked at it

2 and it looks like it's mostly stuff we've had before. So that's the

3 update on that.

4 JUDGE AGIUS: I thank you for that statement, Mr. McCloskey.

5 The position, Ms. Condon, is that here in this Tribunal the Rule

6 68 disclosure process is an ongoing process, and you will find out that

7 throughout the trial itself there will be several instances where you will

8 be receiving fresh documents which are disclosed under Rule 68. The

9 reason why they are disclosed in the course of the trial and not prior to

10 the trial is that sometimes they are not immediately identified as Rule 68

11 material, sometimes they become available after the start of the trial,

12 sometimes they are here for quite some time but they form part of a large

13 collection that has to be vetted. So the important thing is that the

14 Prosecution attends to their obligation of disclosure well, as required by

15 the Rule, failing which, of course, we will have problems. It's as simple

16 as that. I mean, what we should be all avoiding is the situation where

17 all of a sudden we come here and we say, ah, this has just been disclosed

18 to us and we have found out that the Prosecution had it since 1997, for

19 example, in its archive.

20 So we'll play it by the ear as we go along, but my experience here

21 has been that the Prosecution does not normally avoid or try to evade its

22 -- or their responsibility under Rule 68. But of course these issues,

23 the particular instances that you have raised, I think trust Mr. McCloskey

24 and then we will see. If we have reason to be strict with the Prosecutor,

25 then we will do so.

Page 316

1 MS. CONDON: I won't make any comment about trusting Prosecutors,

2 Your Honour.

3 JUDGE AGIUS: Yes. Mr. McCloskey, any comment on that?

4 Mr. Ostojic --

5 MR. McCLOSKEY: I would prefer her to come by me before she makes

6 statements. And statements that are going to go to my integrity, I don't

7 appreciate jokes either.

8 JUDGE AGIUS: Okay. Thank you, Mr. McCloskey.

9 Mr. Ostojic, would you like to raise any other matter that we have

10 not dealt with?

11 MR. OSTOJIC: Thank you, Mr. President. None at this time.

12 JUDGE AGIUS: Have you solved your problems with the e-mail --

13 Tribunal e-mail system?

14 MR. OSTOJIC: We have not yet, Your Honour, but we're working

15 towards that.

16 JUDGE AGIUS: What is the problem, if I may ask, because you've

17 been here, appearing on other trials. You're not a newcomer.

18 MR. OSTOJIC: Thank you, Your Honour. I don't know, and if we

19 knew, then we would solve the problem. We tried this afternoon to resolve

20 it. We're unsuccessful and we're sill trying and we have scheduled a

21 meeting after this conference to meet again to resolve it. I'm just not

22 sure why.

23 JUDGE AGIUS: Okay, thank you. Mr. Lazarevic.

24 MR. LAZAREVIC: Yes, Your Honour. Basically, I don't have any

25 outstanding issues, but I would just like to indicate that in the

Page 317

1 transcript it says Mr. Stojanovic instead of Mr. Ostojic.

2 JUDGE AGIUS: Thank you for pointing that out. So I suppose that

3 will be corrected in due course.

4 Madam Ivanovic or Madam Faveau, whichever you prefer, would you

5 like to raise any other matter, or for that matter, any issue that you

6 would like us to make guidelines or come down with guidelines that we have

7 not dealt with already?

8 MS. FAUVEAU: [Interpretation] Mr. President, I think that you have

9 covered all the important subjects so far, but I would like to draw your

10 attention to a press communique that was issued from the press service of

11 this Tribunal. It's a second communique because there was a first one in

12 July according to which the seven accused were accused of genocide. Today

13 a new press communique was issued and we can read the following in this

14 press communique: [Previous translation continued ...] "[In English] ...

15 trial in which seven senior Bosnian Serb military officials are charged

16 with genocide."

17 [Interpretation] Mr. President, I'm quite sure that you will

18 understand the subject of my concern. The Tribunal is giving a certain

19 image of this trial and of itself, and I believe that the information that

20 comes out of this Tribunal should be as precise as possible.

21 JUDGE AGIUS: I couldn't agree more with you, Madam Ivanovic. I

22 haven't seen the press release. I will have a look at it, together with

23 the other two Judges, and we'll address the matter if at all necessary.

24 Yes. Mr. Krgovic.

25 MR. KRGOVIC: Yes, Your Honour. We don't have any outstanding

Page 318

1 issue for now.

2 JUDGE AGIUS: Mr. Haynes, previously you said you would like to

3 raise a matter, an issue.

4 MR. HAYNES: Yes, Your Honour. We're really seeking the guidance

5 and assistance of the Trial Chamber and perhaps -- well, certainly the

6 Prosecution as well. We all like to come to these hearings as well

7 prepared as is possible to help you resolve the issues that arise, and

8 it's fair to say, and I think Ms. Fauveau has already said this, we really

9 haven't left a stone unturned this afternoon. I've kept a very careful

10 catalogue of the issues that we have dealt with. I dare say you will

11 correct me if I'm wrong, but I think we've only left two items on the

12 agenda over until tomorrow.

13 As far as I understand the position tomorrow, and indeed I think

14 as far as all of the Defence understand the position tomorrow, there will

15 be no opening statement.


17 MR. HAYNES: And there appears to be very little left for us to

18 deal with tomorrow in the morning, and so it's something of an intrigue

19 that this Court has set aside no less than nine hours of court time for

20 what appears to be a fairly formal procedure, and I would like to know,

21 and I know all my colleagues would like to know from the Chamber and from

22 the Prosecution what is on the agenda tomorrow so that we can be properly

23 prepared for it. And that's really the issue I want to raise at this

24 stage.

25 JUDGE AGIUS: Yes. I thank you so much, Mr. Haynes, and precisely

Page 319

1 we were coming to that towards the end.

2 The idea of having a sitting scheduled for the morning and another

3 sitting scheduled for the afternoon does not originate from us. It

4 originates from the Registry, and I tried to find out what was the reason

5 behind it, and the reason behind it was that they anticipated possibly the

6 need or the eventuality that we might require to have an afternoon sitting

7 as well. We had not asked for two sittings in one day, but that's how it

8 happened. You can take it for granted that there will be, especially

9 since there are no spillovers from this Pre-Trial Conference to tomorrow,

10 that there will only be a morning sitting and no sitting in the afternoon.

11 That was, I understand, a measure taken by the Registry ex abundantia. So

12 that, I think, knocks off the afternoon sitting.

13 The morning sitting, yes, there is agreement amongst all of us

14 that although tomorrow will be the kick-off, there will not be opening

15 statements for reasons that have been, in a transparent manner, discussed

16 and agreed upon going back to February, I think -- to April. In April we

17 had already decided when the opening statements would occur. We also

18 decided that the case was presented -- is huge and presented so many

19 aspects to be taken into account before we really start with the

20 evidentiary stage that it was important to have both the Ad Litem Judge

21 and the Reserve Ad Litem Judge in place here in good timely fashion to

22 enable them to sit down and become familiar with the details of the case

23 and also give an opportunity to start training in the e-court system,

24 which you will have an occasion, as I said.

25 So what is going to happen tomorrow? Tomorrow we will try to

Page 320

1 distill and condense today's discussion and agreement in relation to

2 guidelines. No guidelines on the usual hearsay or the usual -- I mean,

3 that stuff you know, but we will come down tomorrow with a decision that

4 we are already working upon which will define certain -- certain

5 guidelines that will become applicable in the course of this trial.

6 We will give you also a clear indication as to how we intend to

7 proceed in matters relating to examination-in-chief, cross-examination,

8 along the lines that we have discussed earlier.

9 I understand from what I have been told that although there will

10 be no opening statements tomorrow, Madam Prosecutor is turning up and she

11 would like to give some information to the Trial Chamber. I haven't got a

12 clue what it is about. We'll see tomorrow.

13 We also have -- the other issue was we'll probably decide orally

14 again tomorrow Beara's motion for leave and a few other things, but

15 basically that's it. Tomorrow we kick off. I don't think there are any

16 -- there should be any concerns as to whether there will be any surprises

17 that you would be unprepared -- unprepared for. But starting tomorrow has

18 solved a lot of problems for the Trial Chamber, and it has also, I think,

19 created an environment which should send you home for your summer recess

20 with sufficient time to prepare yourself better.

21 Yes. There is -- yes. And we will also deal with the protective

22 measures issue tomorrow, tomorrow morning.

23 There's one final issue that I would rather deal with now. If you

24 prefer to come forward with a response tomorrow, I think that is fair

25 enough. The thing is how are we going to proceed. This is by no means an

Page 321

1 easy case. It's also a case that is going to last a considerable time.

2 It is a case where there are plenty of us in one courtroom. We intend to

3 sit on a five-day basis. That's Monday to Friday. But we all have had

4 sufficient trial experience here in this Tribunal to know that there comes

5 a time when Prosecution needs some time to reorganise itself, Defence

6 teams have been inundated with an influx of piles if not sometimes

7 hundreds or thousands of new documents and time is needed to go through

8 these documents.

9 We may establish a pattern beforehand, but before we establish a

10 pattern as regards sittings and breaks, we would like you, like you have

11 been doing so far in the spirit of cooperation, to sit together first,

12 Prosecution and Defence teams, and see if you can come to an agreement and

13 make a concrete suggestion to Trial Chamber. Trial Chamber then will

14 obviously consider whether it's in the best interests of justice to grant

15 your wishes or whether to propose something different or to deal with the

16 issue as we go along. But we want to make sure that we don't get to a

17 stage where everyone has been overworked or where everyone is overtired,

18 because that would lead to confrontation, it would lead to attrition

19 sometimes, and we have got every intention to make sure that each one of

20 you is and continues to be working in an environment that is conducive to

21 good management of this trial.

22 So what I suggest is that if there is anything else that needs to

23 be addressed now, that we adjourn on this note and then you come forward

24 tomorrow with some proposals.

25 Yes, Mr. Haynes.

Page 322

1 MR. HAYNES: I'm sorry to enforce this upon Your Honour and indeed

2 everybody else in court, but I can't accede to the suggestion that we

3 adjourn now. You have touched upon the very thing that concerns us.

4 We were all intrigued by an item which arose from a press briefing

5 dated the 21st of June which indicated that we were to expect Ms. Del

6 Ponte here tomorrow to deliver a statement, and to quote the press

7 briefing, "Which will be more than procedural and is expected to be of

8 great interest."

9 Like Your Honour, we have no idea what she proposes to say, and we

10 wondered as a first step whether anybody could give us some idea what she

11 proposes to say. Our primary position is that such a statement has

12 absolutely no place in tomorrow's proceedings. Tomorrow will be the

13 formal opening of the trial against these seven accused, the start of

14 trial proceedings that require careful regulation and ought, in our

15 submission, to be limited to admissible evidence and proper argument

16 thereupon. The regulation of those proceedings is a matter for Your

17 Honour. In simple terms, this is your court, not Mrs. Del Ponte's. If

18 Mrs. Del Ponte wishes to make interesting statements or announcements for

19 the benefit of the world's media, she has access to perfectly adequate

20 facilities, both inside this building, outside this building, and

21 elsewhere. And I'm sorry, at quarter to 7.00 in the evening, but I'm

22 going to invite you to make a decision about whether any such statement

23 can properly be made tomorrow at the formal opening of the trial against

24 these seven accused.

25 JUDGE AGIUS: And we are in the same unfortunate position as you

Page 323

1 are. We don't know what kind of statement to expect.

2 So, Mr. McCloskey, are you in a position to enlighten us on this?

3 MR. McCLOSKEY: Your Honour, I believe as the formal opening, as

4 you've designated, she wanted to say a few words about the importance of

5 the case. Five minutes maybe, maybe six to eight. Something that I may

6 -- could say myself. She's the Prosecutor. The formal opening of the

7 case, how important this case is, and perhaps direct your attention to

8 that.

9 JUDGE KWON: So it's a part of opening statement.

10 MR. McCLOSKEY: It could be viewed that way. It could be viewed

11 as a ceremonial statement as part of the formal opening, as it's been

12 designated.

13 JUDGE AGIUS: Introduction to your opening statement?

14 MR. McCLOSKEY: It's very similar to what I said in my opening

15 statement or what Mark Harmon said in his opening statement before that.

16 JUDGE AGIUS: To my understanding, this has happened before. It

17 happened in Prlic, I think. In Prlic I think she was even invited by the

18 Trial Chamber to be there and make a statement or something like that. I

19 don't know exactly what happened. I can check. But I know that she made

20 a statement in Prlic.

21 Let's do it this way, because not knowing what the plans are, what

22 her intentions are, how can ask even --

23 MR. HAYNES: Can I invite you? My primary submission is that you

24 should simply disallow any statement being made tomorrow. It's

25 inappropriate and it's not a proper part of tomorrow's proceedings. But

Page 324

1 if you're prepared to countenance the making of such a statement by

2 Mrs. Del Ponte, I'm going to ask you to make four directions: Firstly,

3 that as precise as possible a text of that address to the Court tomorrow

4 is made available within 30 minutes. Secondly, that no address be

5 received from her until at least 12.00 noon. That would enable at least

6 one of the counsel in each team to go to the Detention Unit tomorrow

7 morning and take their client's instructions on their reaction to such a

8 statement. Thirdly, that prior to any such statement being heard by the

9 Trial Chamber and the public, that there should be discussion and argument

10 as to the propriety of the making of such a statement in whole or in part

11 in private session. And fourthly, if you are going to permit such a

12 statement to be made, that each of the accused has the right to respond to

13 it.

14 JUDGE AGIUS: All right. I think you will not have any comment

15 from me on this until I have thoroughly discussed it with the -- the

16 Judges, and again, what I suggest is that we move this to tomorrow morning

17 because there is no way we can hand down decision on this this evening by

18 7.00, and we cannot keep anyone else here beyond 7.00.

19 Yes, Mr. McCloskey.

20 MR. McCLOSKEY: And if counsel could enlighten on us on what

21 authority he is citing to such -- does he intend to find out what I intend

22 say before each day of the court? What's the purpose of this? Where's

23 the prejudice? A Prosecutor is saying how important her case is. This is

24 being built into some grand issue which really there's no -- not one

25 citation to any law or authority nor any citation of anything.

Page 325

1 MR. HAYNES: I've only just been told she's going to speak

2 tomorrow. So you'll forgive me if I haven't been able to look up

3 authority.

4 JUDGE AGIUS: Mr. Haynes, let's establish this straight away: No

5 cross --

6 MR. HAYNES: I'm very sorry.

7 JUDGE AGIUS: So that's one unwritten rule that you need to

8 observe all the time. Please address the Trial Chamber and not each

9 other. That's first, and I hope the last time I will need to say that, to

10 state that.

11 I think we need to retire, withdraw, discuss this amongst

12 ourselves, and then tomorrow morning we will -- if we need to discuss it

13 further, we will discuss it further, and then we'll take a decision.

14 Yes, Mr. Bourgon.

15 MR. BOURGON: Thank you, Mr. President. We did not have the

16 opportunity to say whether there was other issues we wanted to raise.

17 There are two such issues but I will, with your permission, keep them for

18 tomorrow. They're not critical issues which must be handled at this time.

19 Thank you, Mr. President.

20 JUDGE AGIUS: Mr. Haynes, shall we ask Mr. Bourgon to provide you

21 with at least 30-minutes advanced notice so we can -- yes, Mr. Bourgon.

22 Can we at least know what they are?

23 MR. BOURGON: They are two quick issues, Mr. President. The first

24 one deals with an issue that we raise in our pre-trial brief which regards

25 Prosecution's pre-trial brief and defects in that document, that we have

Page 326

1 problems working with that document.

2 The second issue deals with the order of the names of the accused

3 on the indictment further to your decision that was rendered this

4 morning. You basically ordered that paragraph 65(E)(vi) in which order

5 the names of the accused would appear, and I would like to make

6 submissions in that respect.

7 JUDGE AGIUS: Okay. So the understanding is we will reconvene

8 tomorrow morning at 9.00. If we need to discuss further with you the

9 matter relating to Madam Del Ponte's intended intervention, we'll do that.

10 Otherwise, we'll just come down with a decision.

11 [Trial Chamber confers]

12 JUDGE AGIUS: I was surprised to hear you say that you were not

13 asked whether you had other matters to raise. I have been doing the round

14 whether you have other matters you would like to raise. I asked Madam

15 Nikolic. Really?

16 MS. NIKOLIC: [Interpretation] Yes, Your Honour.

17 JUDGE AGIUS: My apologies to you.

18 MS. NIKOLIC: [Interpretation] It was quite by accident that you

19 failed to mention us, but thank you.

20 JUDGE AGIUS: Any further -- yes, Mr. McCloskey.

21 MR. McCLOSKEY: Perhaps we should think about -- a rule about two

22 counsel for each side and they seem to be popping up one after another.

23 JUDGE AGIUS: Yes. I think as we go along the rule that will be

24 observed here is the rule that is observed worldwide: If there are two,

25 three counsel for an accused, it should be one counsel that should deal

Page 327

1 with any particular matter and not -- not both. But again, there may be

2 instances where we would allow for exceptions. Sometimes it becomes

3 necessary. But the rule is, as we all know it here, that if there are

4 two, it's only one that should speak or intervene.

5 JUDGE AGIUS: We shall adjourn. I would like to thank the

6 interpreters, the technicians, and our staff and all the others that have

7 made it possible to conduct this Pre-Trial Conference.

8 Tomorrow, we will continue with a few remaining issues and then

9 move to the opening of the trial. Thank you, and good evening.

10 --- Whereupon the Pre-Trial Conference

11 adjourned at 6.55 p.m.