1 Wednesday, 28 February 2007
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.17 p.m.
5 JUDGE AGIUS: Good afternoon. Madam Registrar, could you
6 kindly --
7 THE REGISTRAR: Good afternoon, Your Honours. This is case number
8 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.
9 JUDGE AGIUS: I thank you. All the accused are here. Same for
10 the Defence teams except for -- yes, Mr. Josse.
11 MR. JOSSE: Mr. Krgovic is working away from the courtroom for a
12 few days, Your Honour.
13 JUDGE AGIUS: Thank you. Prosecution is Mr. McCloskey,
14 Mr. Nicholls, Mr. Vanderpuye. I don't see anyone else.
15 Mr. -- are there any preliminaries?
16 Yes, Mr. Vanderpuye.
17 MR. VANDERPUYE: Good afternoon, Mr. President and Your Honours.
18 There is a preliminary issue with respect to the disclosure of certain
19 documents that I furnished to the Defence relevant to the witness's
20 testimony. The documents are essentially internal documents consisting of
21 information reports, personal notes, notes to file, and things of that
22 nature which were missed during the course of preparing the witness for
23 her testimony. Yesterday, pursuant to the witness's testimony about the
24 transferral of the binder of 500 pages to the Tribunal, I undertook to
25 search for documentation pursuant to the request of my colleague,
1 Mr. Zivanovic. And during the course of that search uncovered a small
2 cache, if you were, or a file, of documents that were apparently prepared
3 by Ms. Frease. And I think that, after having reviewed the documents, it
4 appears that they are directly relevant to the issues upon which she has
5 testified and I have furnished that on to the Defence.
6 At the time I compiled the documents I had e-mailed the Defence
7 and invited them to consider their position with respect to this matter,
8 and I have differing views on how to proceed. So that's the reason why I
9 have raised at this point and I think it would be worthy of some
10 discussion, since Ms. Frease is actually on the stand presently.
11 JUDGE AGIUS: Thank you for that information, Mr. Vanderpuye.
12 Would these documents have been -- would these documents be such as would
13 fall under Rule 66 or Rule 68? Could you explain that, please? Because
14 obviously we haven't seen them, we are not aware of the nature of their
16 MR. VANDERPUYE: We have reviewed the documents with respect to
17 Rule 68 or any exculpatory material that may be contained in them and, in
18 fact, they are consistent with the witness's testimony and to the extent
19 that they actually bear upon the testimony of previous witnesses, in
20 particular the commander that was referred to, what's contained in the
21 documents is also consistent with the testimony that was offered by that
22 witness. But obviously I'd leave that to the Defence to dispute or
23 accept. The statements are also the statements of the witness. And so I
24 think this they do fall under Rule 66 to that extent.
25 JUDGE AGIUS: Definitely. All right. So does any one of the
1 Defence team wish to address this matter?
2 Mr. Ostojic.
3 MR. OSTOJIC: Good afternoon, Mr. President, Your Honours.
4 JUDGE AGIUS: Good afternoon to you, too, sir.
5 MR. OSTOJIC: First I would like to allow you to see the complete
6 picture, and I think, although with all due respect, my learned colleague,
7 you -- didn't fill you in on some critical information. We received or an
8 e-mail was sent to us at 12.29 this afternoon telling us it's urgent.
9 There was an invitation. His invitation was to suspend Ms. Frease's
10 testimony. We did not have the documents attached to the e-mail. They
11 were given to us shortly before we entered this courtroom laying our desk
12 here, approximately 2.10, 2.05 for some who came earlier.
13 We've always wanted the complete file of Stefanie Frease; we were
14 never given that complete file. My learned friend says on page 1, line
15 20, "it's information reports, personal notes, notes to file, and things
16 of that nature." I want them on the record or someone to attest in
17 writing to me that that's her complete file. I dare say that I suggest
18 that it is not, that this individual, Ms. Frease, has been doing this
19 intercept project for several and many years. She's engaged with many
20 researchers, many other investigators, many witnesses. I'd like to get
21 her complete file. It's important. I do not, again with the most
22 respect, rely on the Prosecutor to tell me whether that evidence is
23 consistent or part of Rule 68. I'd like for the benefit of my client to
24 make that examination. They've invited us to suspend Ms. Frease's
25 testimony because it's a critical issue to have a witness testify and
1 give answers. I don't believe that they're consistent, her answers. I
2 don't believe they have been, but we could argue about that at some other
4 My other big question to this Court is, the alternative is not
5 necessarily to suspend Ms. Frease's testimony, but it's to strike her
6 testimony. Who is she and what is she? If she is offering summary of
7 data that we can summarise and we can assess, whether it's for its
8 authenticity or reliability, that's the job of the attorneys, I
9 respectfully say, to try to convince the Court and ultimately
10 Your Honour's decision on those issues. All she's doing is an
11 investigator who assisted on a project. If it's fair that a Court will
12 allow an investigator to give such testimony, we also have our
13 investigators and personnel who would like to testify and say, "Here is
14 our analysis, let us testify as to how we see the evidence." I don't
15 think it is fair. She showed us yesterday, I believe at least, that she
16 doesn't have a unique expertise in this area at all, whether it's chain of
17 custody or whether it's on assessment of reliability of these documents.
18 She's admitted she's not a criminologist, said that she did not utilise a
19 forensic expert in part of her testimony yesterday. What is the basis of
20 her testimony? If it's to fill time, I could accept that, I suppose, but
21 it's not expertise in any manner. So we would ask that her testimony be
22 suspended, but only after we receive her entire file so we can have
23 adequate time to review it or, in the alternative, to have her testimony
24 stricken and barred from this Court or this proceeding. Thank you,
25 Your Honour.
1 JUDGE AGIUS: I thank you so much, Mr. Ostojic.
2 Anyone else wishes to address the Trial Chamber?
3 Madam Fauveau.
4 MS. FAUVEAU: [Interpretation] I would like to simply say that I
5 agree with the submission of Mr. Ostojic. After having seen a few
6 documents, a few of these documents, I see that they are internal notes,
7 but also information reports about potential witnesses, and about -- other
8 people were mentioned in other documents and that could be a relevant
9 source of information.
10 JUDGE AGIUS: Mr. Bourgon.
11 MR. BOURGON: Thank you, Mr. President. Good afternoon,
12 Your Honours. Just to say that we also join in the arguments presented by
13 Mr. Ostojic and to say that that is on both issues, that is both the issue
14 of the documents that we have just been served with, but also the issue
15 concerning the purpose and the meaning of the testimony of the witness who
16 is presently on the stand. Thank you, Mr. President.
17 JUDGE AGIUS: I thank you, Mr. Bourgon.
18 Mr. Vanderpuye.
19 MR. VANDERPUYE: Thank you, Mr. President.
20 JUDGE AGIUS: Can I first ask you to address this complete file
21 issue that was raised by Mr. Ostojic?
22 MR. VANDERPUYE: The complete file issue raised by Mr. Ostojic, I
23 think, can be bifurcated. One has to do with the documents that are
24 contained within it that are reasonably discoverable under the Rules and
25 others has to do with documents that are not discoverable but are, in
1 fact, the work product of the witness and of the Office of the
2 Prosecutor. So to the extent that Mr. Ostojic wants everything that
3 Ms. Frease has done, that is contained in this file, I don't know that
4 he's entitled to everything that was created by Ms. Frease for two
5 reasons: One is that some of those materials are internal work product
6 and therefore privileged and not disclosable to the extent that they don't
7 contain exculpatory material. The second is he is entitled to documents
8 that bear -- that have some relevancy to the subject matter of her
9 testimony. Mr. Ostojic indicated previously Ms. Frease has worked with
10 the Office of the Prosecutor for a long time, she worked in different
11 capacities, some of which do not bear upon the subject matter of her
12 testimony or the capacity in which she has been called in this case.
13 So there is a limit with respect to the documents that are
14 relevant to her testimony. As far as I can tell the Court now, the
15 documents that have been disclosed represent -- represent the -- the
16 totality of the documents that we are aware of that bear upon the subject
17 matter of her testimony that are not otherwise privileged and that are
18 not otherwise the subject of a work product within the Office of the
20 The second portion of Mr. Ostojic's argument, if I may address
21 that, has to do with her capacity to testify in the case. I think the
22 Defence is well aware of the capacity in which Ms. Frease has been called
23 to testify in this matter. We've not represented Ms. Frease to be an
24 expert in relation to her examination or analysis of intercepts. I don't
25 believe that was ever a question asked on direct and I don't think it's
1 ever been implied that she's been called in that capacity. She's
2 testified previously, and I'm sure that the Defence is aware of the
3 subject matter of that testimony, which is essentially consistent with the
4 testimony that she's offered here today with respect to her work
5 concerning the intercepts used in this case. It would seem to me that the
6 appropriate time in which to raise the objection to the propriety of
7 calling Ms. Frease as a Prosecution witness would have been well in
8 advance of her testimony, and as soon as the subject matter of her
9 testimony would reasonably have become known to the Defence, which I could
10 only assume would have preceded actually the commencement -- well, would
11 have shortly followed the commencement of the case, as soon as she was
12 identified on the Prosecution's 65 ter witness list.
13 It seems to me that the objection to her testimony is untimely; it
14 could have been made either at the beginning of her testimony or prior
15 thereto and, in fact, should have been. The second reason that I think
16 it's an inappropriate objection is because Ms. Frease is not testifying in
17 the capacity of an expert, but is testifying about particular work that
18 she did concerning the intercept collection in a manner that would be
19 helpful to the Court in understanding the nature and relation of the
20 intercepts to other material factual questions in the case, such as the --
21 the -- such as intercepts that have been recorded at multiple sites,
22 identifying for the Court precisely in which instances those
23 communications have occurred because that was not within the ken of the
24 individual intercept operators to do. It was not necessarily clear and
25 immediately identifiable from the examination of the material because
1 there are instances in which those transcriptions occur simultaneously but
2 are designated by different times and different locations such that it
3 wouldn't be readily identifiable to the Court and therefore her testimony
4 is extremely useful in that regard. She's being called in that capacity
5 in order to crystallise for the Court the process by which the intercepts
6 that are being offered by the Prosecution was gathered in order to
7 crystallise for the cord those actions undertaken by the Prosecution or
8 with respect to the intercepts that bear upon the reliability of those
10 She was not asked directly what her opinion was, with respect to
11 whether or not the intercepts were reliable. She was asked about specific
12 tasks that she undertook in that regard in order to evaluate the
13 reliability of those -- of that material. So I think that Mr. Ostojic's
14 argument, although I think is well articulated, is -- is not -- is not one
15 upon which Ms. Frease's testimony should be stricken or precluded,
16 particularly as a result of the disclosure of the documents in addition to
17 the propriety of her testimony in the first instance.
18 JUDGE AGIUS: All right. I thank you, Mr. Vanderpuye. I have a
19 few questions to you before I give the floor again to Mr. Ostojic and
20 anyone else who wishes to speak.
21 You dealt in the beginning, in response to my invitation about
22 whether the disclosure in relation to Ms. Frease's testimony is complete
23 or not, and you seem to hint, if I understood you well, that disclosure is
24 complete, barring documents which are not subject to disclosure. Do I
25 read you well?
1 MR. VANDERPUYE: I'm sorry, I was just momentarily distracted.
2 I'm reading the transcript and I do understand your question. Well, I
3 will say that you read me close to well.
4 JUDGE AGIUS: So could you make -- could you bring me closer?
5 MR. VANDERPUYE: I'll try to draw you in just a little. We are
6 presently continuing to search, to make sure that what we've disclosed is
7 as complete as it can be. The documents that I have disclosed right now
8 are all of the documents that -- that we are aware of that bear on the
9 testimony -- as I've said before, bear on her testimony and are otherwise
10 not privileged from disclosure.
11 Because of the fact that we discovered this at the last instance,
12 I am reluctant to tell the Court or represent that it is an exhaustive
13 list of all of the documents. We have been searching our own files
14 essentially since I -- since before I e-mailed the Defence, and I think
15 that was several hours ago, and these are the documents that we've come up
16 with and identified. I cannot make that representation to the Court, I --
17 I feel uncomfortable doing it and I don't think it would be genuine to
18 make that representation. But I can tell you that there do exist
19 documents that are, in fact, privileged. So that I don't want to make the
20 representation that there are five documents in the file that we found.
21 They are not, they are more, but those documents, it is our position, are
22 work product, are unrelated otherwise to the subject matter of the
23 witness's testimony, and are -- and are privileged. I think that's about
24 the extent of the representation I can make to the Court and Defence
25 counsel at this time.
1 JUDGE AGIUS: Okay. Thank you. And one further question.
2 Obviously none of us has seen these documents from -- but from what I
3 could gather at least, some indication that these are internal memoranda
4 from Ms. Frease to her superiors, I suppose. Wouldn't that fall under
5 paragraph A of Rule 70 which excludes or -- excludes from disclosure,
6 reports, memoranda, or other internal documents prepared by a party's
7 assistance or representatives in connection with the investigation or
8 preparation of a case? Because I heard what Madam Fauveau had to say, I
9 heard what Mr. Ostojic had to say, and what you said, because if that is
10 the case, and you are disclosing them nonetheless, the question that
11 Mr. Ostojic put about the completeness or otherwise of disclosure becomes
12 a little bit more pertinent. Or opens up anyway.
13 MR. VANDERPUYE: I would respond as follows, Mr. President: The
14 view that Mr. McCloskey and our team is taking with respect to these
15 documents is a broad one. We're not seeking in any way to stretch our
16 view the limitations of paragraph A of Rule 70 in order to avoid the
17 disclosure of these documents. We feel that they are pertinent to the
18 subject matter of the witness's testimony, and frankly had I seen these
19 documents when Ms. Frease had first testified, they would have been
20 disclosed at that point because they really do bear upon issues that were
21 raised by -- in the cross-examination, and in the direct testimony to an
22 extent. And that is the view that we've taken and that's the reason why
23 we're disclosing them. We're not suggesting that they clearly outside the
24 scope of Rule 70, paragraph A, but we feel that in an abundance of caution
25 and in fairness to the Defence they should be made aware of these
1 documents and they should have them in order to effectively cross-examine
2 the witness.
3 JUDGE AGIUS: All right. Then what about who has already
4 cross-examined the witness?
5 MR. VANDERPUYE: The other half of the e-mail that I had sent --
6 JUDGE AGIUS: This is the sore point of the whole debate because
7 Mr. Zivanovic will ask for another two hours 40 minutes. More. Yes,
8 Mr. Vanderpuye, I'm trying to ...
9 MR. VANDERPUYE: We had considered the complication of attending
10 to the fact that Mr. Zivanovic had already completed his examination, and
11 what one of the Defence counsel has suggested would be perhaps to have
12 Mr. Zivanovic or those who had already proceeded or completed their
13 cross-examinations to review the documents and to the extent that
14 re-cross-examination should be required, we're certainly in a position, I
15 think, to consent to that. Of course that is within the discretion of
16 the Court and there are time considerations and constrains but I think
17 that would be an appropriately reasonable tact to take particularly for
18 Mr. Zivanovic.
19 For counsel that haven't gone yet, then it becomes a question of
20 how much time they would require in order to review the documents. I can
21 tell you there are about five documents and their length, of course, is
22 not necessarily material, but they are not particularly long. But I
23 think it is appropriate for counsel to have the opportunity to review
24 them. I don't know necessarily that that would -- I don't know
25 necessarily that that would change the cross-examination that's already
1 been undertaken thus far. That is entirely up to Defence counsel and I
2 wouldn't presume -- I wouldn't presume to tell them how to do their job or
3 what's important to their clients or them. I think that is a reasonable
5 JUDGE AGIUS: I thank you very much, Mr. Vanderpuye.
6 Mr. Ostojic, since you are in a somewhat different position than
7 that of your colleagues as you are first to go, I would also invite you
8 to address this last point that I raised with Mr. Vanderpuye, and which
9 he has responded to. In other words, being prepared for
11 MR. OSTOJIC: As I think the Court has seen, everything can be
12 placed in a certain context. When we discuss issues like completeness of
13 documents or records, we honestly get a respectfully evasive answer. If
14 there is a privilege and if there is a work product privilege that they
15 are asserting, they can make a privilege log, identify the documents as we
16 do in many jurisdictions to tell us how many documents, the Court could
17 have examined that ex parte to determine whether it constitutes either a
18 privilege or work product. They don't go that far. They took a chance on
19 calls Ms. Frease and now they don't want to suffer the consequences of
20 some of her testimony and some of her cross by supplementing with
21 additional and new documents. If they give us one of her internal
22 documents, I say they've -- in themselves have made an admission that all
23 the documents should come in from Ms. Frease. They've waived the right to
24 raise it as a privilege or a work product.
25 Secondly, we've seen the argument in connection with the
1 completeness. Again, I have to stress, it's not complete. It's clear
2 it's in the complete. We think there is more documents than this. There
3 must have been more documents if she interrelated and spoke to many
4 different investigators, researchers, attorneys, et cetera. We're not
5 looking to get behind their strategy, although they've shared that with us
6 and I hope they had. We know what their strategy is in the case and it
7 it's developing slowly and we recognise it. We're not looking for
8 anything internal. We are looking for things to shed light on the two
9 critical issues in connection with the logbooks, that is whether or not
10 they are reliable and whether or not they are authentic. We think from
11 that evidence, from those internal memos, it can draw or shed some light
12 on that issue.
13 In connection with my colleague sharing on page 10 where he says
14 he felt that, that we should have had them in order to effectively
15 cross-examine the witnesses. He's correct on that. It is undisputed in
16 order to cross-examine a witness, especially an in-house witness that the
17 Prosecutor has nurtured, developed, worked with over the course of the
18 last several years, we should have had all that material before. We
19 should have had it not only before her testimony but well before the trial
20 commenced last August or July when it formally did.
21 Finally he raises a claim that Ms. Frease is a fact witness. I
22 will accept his agreement on that, that she's a fact witness, and I would
23 ask the Court to just look at some of the questions that my learned friend
24 asked this witness. He used the word "opinion" many times, several times
25 during his direct examination of her. And just so the record's clear, if
1 we look on Monday's transcript during the direct examination, the 26th of
2 February, page 66: "Question: In evaluating --" lines 13 and 14. "In
3 evaluating the two intercepts, would it be fair to say in your opinion
4 that the summarisation version of the conversation carries the same import
5 as the verbatim version of the intercept."
6 He goes on, on many of these instances, to ask her opinion not
7 only authenticity, but on reliability, on import of -- on the import of
8 certain intercepts, and he knows that it's a violation. Or I should say
9 they know it's a violation. She is not an opinion expert, she shouldn't
10 be allowed to give opinion testimony. I again, as I said in the
11 opening -- in the opening argument on this issue, we should bar her
12 testimony in connection with the opinions that she has given. If she is a
13 fact witness, walk us through the chain of custody, walk us through where
14 you felt there is reliability.
15 JUDGE AGIUS: Move to the next point.
16 MR. OSTOJIC: Those are the three points I'd like to -- it's a
17 very serious issue, but I think it's continuing problem. So on privilege,
18 we should be given a privilege log. Completeness of documents, they have
19 not shared with us and they -- yet they agree that those documents are
20 necessary. They're giving us a selective review of those documents. And
21 number three, it's clear that she's acting as an opinion and fact witness
22 and we ask that you to strike all her opinion testimony.
23 JUDGE AGIUS: You haven't answered my last posit to you, namely
24 whether you have had time to go through these documents, whether we can --
25 we can proceed with her testimony and possibly reopen for you to put
1 further questions afterwards. What's your position on that?
2 MR. OSTOJIC: It's a twofold question.
3 JUDGE AGIUS: I know that you are a very practical lawyer.
4 MR. OSTOJIC: Thank you, Your Honour. It's a twofold question,
5 quite candidly. One, I have not reviewed the documents; that's why I
6 thought it was important for the Court to know that we received the e-mail
7 at 12.30 and we received the documents moments after 2.00. So I honestly
8 have not reviewed them at all. I looked at the first page. It's more
9 extensive than just a couple of pages. There's details there that I think
10 are necessary for us to develop and look at so I've not looked at it. I
11 would leave it to the Court's pleasure. I think, though, that it's time
12 that we take a position that if these things keep happening that we will
13 not become practical in every instance and allow the Prosecutor, in my
14 view, to manipulate the process and force our hand by giving us or spoon
15 feeding us documents in order to complete a cross-examination and
16 continuously bring witnesses in. If that were true, then we would invite
17 on every occasion other witnesses to come back. After Ms. Stefanie Frease
18 testifies, the intercept operators -- and try to then join the testimony
19 to see if they are consistent or inconsistent. I think it's not practical
20 to do that, but the more practical solution is what was offered by my
21 learned friend, the invitation to suspend her from testifying today.
22 JUDGE AGIUS: He never reiterated that.
23 MR. OSTOJIC: It's in his -- I read his -- I read his e-mail and I
24 don't that I --
25 JUDGE AGIUS: That was in his e-mail to you. He's never stated
1 that in court.
2 So I think we'll -- yes, Mr. Bourgon.
3 MR. BOURGON: Thank you, Mr. President. If I -- if I may add in
4 answer to the same questions but just to give it -- and maybe in a
5 different -- to answer in a different light. First of all, with the
6 nature of the information that we are provided for, without going into the
7 details, these are documents entitled, "Information report." So they are
8 not work product; they really basically give information as a -- as a
9 witness statement, and we have two information reports. With the same --
10 as was put to you by my colleague, Mr. Ostojic, we have not had time to
11 review these documents personally on behalf of my client. We are not in a
12 position to proceed today with further cross-examination.
13 But that brings an issue, Mr. President, that we would like to
14 bring forward. We did file a motion some time ago at the beginning of
15 this case asking for an order from the Trial Chamber to order the
16 Prosecution to give us a list of all documents they have for each
17 witness. We never have received such a list. We have received many
18 indexes with lots of material, but never have we received a list of
19 material for each witness. The Trial Chamber decided to deny the motion,
20 and said that the Prosecution was doing its best. I agree, they're doing
21 their best. But doing their best, not having such a list doesn't allow us
22 to maybe in advance query, are you sure you're not missing something with
23 this witness because of our own investigation. We are not a position to
24 do that.
25 Also, in the Trial Chamber's decision - and I couldn't have -- I
1 was looking for the decision now - it also said that should the
2 Prosecution come up with new documents that there would be a delay given
3 to the Defence or some time given to the Defence to prepare before we can
4 cross-examine such a witness. Thank you, Mr. President.
5 JUDGE AGIUS: I thank you.
6 Any further comments? None.
7 I think we need to have a short break. We need to discuss a
8 little bit amongst ourselves. It should be a short break rather than a
9 long one.
10 JUDGE KWON: If I can put a question to the Prosecution.
11 I think I see a point in Mr. Ostojic's submission. It is related
12 in general to Rule 70(A). If witness is of a kind who's coming from
13 in-house, so called, who worked as an investigator or is working as an
14 investigator or whatever, then the reports, memoranda, or other internal
15 documents may be differently treated from the case of the ordinary
16 witnesses. So for example, internal report or the memoranda produced by
17 or in relation to the witness, can they not be viewed as kind of
18 statements of the witness, previous statements? I wonder whether you
19 followed my point.
20 MR. VANDERPUYE: I was just reading it on the monitor.
21 JUDGE KWON: Thank you.
22 MR. VANDERPUYE: If you would bear with me for just a moment,
23 Your Honour. Thank you
24 [Prosecution counsel confer]
25 JUDGE AGIUS: The question is, does the fact that an investigator
1 becomes a witness make him or her fall out of the parameters of the
2 privilege which is envisaged in Rule 70? This is basically the question
3 that Judge Kwon has put to you.
4 JUDGE KWON: In particular in light of the words which says,
5 "Notwithstanding the provisions of Rule 66 and 67."
6 Please proceed.
7 MR. VANDERPUYE: Well, maybe I can answer it this way: We don't
8 feel that the mere fact that the character of the witness, in other words
9 the capacity in which they are called, necessarily broadens the scope of
10 Rule 70(A). We are disclosing this material because we believe
11 fundamentally that it falls outside the scope of Rule 70(A). And the
12 reason that it falls outside Rule 70(A) is based upon the character of the
13 evidence as opposed to the fact that the witness created it or the
14 capacity in which the witness created it. The material that we've
15 disclosed here bears directly upon the subject matter of this witness's
16 testimony. In other words, every document that she's created for her
17 superior in the capacity of -- in her capacity as an investigator doesn't
18 necessarily warrant disclosure, but warrants disclosure to the extent that
19 it bears materially upon the subject matter of her testimony. That's the
20 reason why we've disclosed it. And I hope that answer your question. I'm
21 sure that you will let me know if it doesn't.
22 JUDGE KWON: In case of 66(A)(ii) disclosure, whether the document
23 has any bearing upon the subject matter or relevance, has nothing to do
24 with the duty of the Prosecutor to disclose those.
25 MR. VANDERPUYE: That's correct. But under Rule 70(A) it seems to
1 me that it creates an exception to the Prosecutor's obligation to
3 JUDGE KWON: So the crux of the matter is, will lie upon the
4 distinction between the statements and the internal documents, whether a
5 certain document should be viewed as statements of the witness, then that
6 should be disclosed. Whether it has the bearing upon the subject matter
7 or not, has nothing to do with the disclosure.
8 MR. VANDERPUYE: Okay.
9 JUDGE KWON: I think I can agree thus far.
10 MR. VANDERPUYE: I think so. My understanding of Rule 70(A),
11 though, is that it is an exception to the disclosure requirements under
12 Rule 66 and that's the reason why it's preceded by the term
13 "notwithstanding," that that obliges -- well, not obliges. But it gives
14 the Prosecutor or the party the opportunity not to disclose the documents
15 even though they would otherwise be required to be disclosed under those
16 Rules. So, yes, I think we agree to that extent.
17 JUDGE KWON: Yes. Thank you.
18 JUDGE AGIUS: I think we need to suspend the sitting.
19 Yes, Mr. Haynes.
20 MR. HAYNES: Can I make a suggestion?
21 JUDGE AGIUS: Yes.
22 MR. HAYNES: Why don't you look at these documents that we've been
23 given? I'm happy for you to. Then you can decide whether those
24 statements -- or mind.
25 JUDGE KWON: I wouldn't mind.
1 JUDGE AGIUS: I wouldn't mind either. You know that it hasn't
2 been the practice, but sometimes that becomes useful. We haven't asked
3 because no one offered and it's also because our practice is not to be
4 the --
5 MR. VANDERPUYE: I think we have some extra copies if the Court
6 would like to see them.
7 JUDGE AGIUS: I think it will help us decide on at least one
8 issue, if to proceed at all today.
9 MR. VANDERPUYE: One, two, three, four, is this all in -- in
11 JUDGE AGIUS: Madam Usher, can you please show them to Mr. Haynes
12 so that we have a confirmation that we are talking of the same entire
13 collection of documents. It's not a question of mistrust, please don't --
14 don't misunderstand me. More of a formality than anything else.
15 Yes, Madam Fauveau.
16 MS. FAUVEAU: [Interpretation] Your Honour, I have had the
17 opportunity to look at these documents and I would like to inform the
18 Chamber that there is at least one document amongst the documents that was
19 disclosed to us as a document that falls under the scope of Rule 68. It
20 clearly falls under the scope of that rule, Rule 68.
21 JUDGE AGIUS: I know, but we are going to see the documents.
22 Which of these documents are you referring to, please?
23 MS. FAUVEAU: [Interpretation] I'm referring to the --
24 [In English] Information report submitted, Stefanie Frease,
25 source --
1 [Interpretation] I won't tell you the source. It's an officer
2 from the army of Bosnia and Herzegovina.
3 JUDGE AGIUS: What do you have to say about that, Mr. Vanderpuye,
4 if you can detect -- identify the document Madam Fauveau is referring
6 MR. VANDERPUYE: Okay. I'm -- I'm not sure if I have identified
7 the document that my colleague is referring to, and maybe she could be a
8 little bit more precise so I can -- I can see what she's talking about.
9 JUDGE AGIUS: Can we have the date of the document or the first
10 three words or four words of the text?
11 MS. FAUVEAU: [Interpretation] It's a document dated the 24th of
12 April, 1998. There is no ERN number on that document.
13 JUDGE AGIUS: Okay. All right.
14 So as stated we need to suspend the sitting. We will be coming
15 back to you shortly. Thank you.
16 --- Break taken at 2.54 p.m.
17 --- On resuming at 3.35 p.m.
18 JUDGE AGIUS: So, allow me to start from here. We have been
19 informed that while we were deliberating the accused have not had time to
20 leave the courtroom and have their break. So we have already discussed
21 that and we will come to a break soon to allow you to have a short break.
22 I'll try to deal with the various issues that have been raised
23 that, in our opinion, require to be dealt with.
24 First point that was raised by Mr. Ostojic and on which we heard
25 submissions from other Defence teams as well as from Mr. Vanderpuye, which
1 we have taken note of, we have the following: We have noted in particular
2 the statement made by Mr. Vanderpuye, namely, or to wit that further
3 searches are ongoing to ensure that disclosure in relation to this witness
4 is complete.
5 Now, the Trial Chamber cannot fail to point out that failure to
6 disclose material under Rule 66(A)(ii) in a timely fashion can, as has
7 been shown in other cases, lead to undesired and undesirable consequences
8 which include frustration of proceedings and, many a time, extra costs,
9 expenses, for the Tribunal. Because of this, but not only because of
10 this, the Trial Chamber cannot condone this and has no doubt that the
11 material in question should have been disclosed earlier.
12 The Trial Chamber also acknowledges that the disclosure of the
13 material in question at this particular stage of the proceedings, when the
14 witness has not yet finished her testimony, and when cross-examination by
15 almost all the Defence teams is not yet concluded, allows for the rights
16 of the accused to be protected and to be protected in a timely fashion and
17 minimises the frustration of the proceedings.
18 The Trial Chamber agrees further that the late disclosure of the
19 material in question entitles the Defence teams to ask for a suspension of
20 the proceedings in order that they may examine this material and prepare
21 their cross-examination. We are, therefore, prepared to grant any
22 additional -- to grant any additional time as required, accordingly.
23 This will include, of course, the Popovic Defence team, if they
24 wish to further cross-examine the witness.
25 Finally, we see absolutely no merit to the submission of the
1 Beara, Nikolic and Miletic Defence teams to strike the testimony of the
2 witness. Our order is to proceed with her testimony subject to what we
3 have decided before.
4 What I suggest now is we will have a 25-minute break so that
5 the -- or 20-minute break so that the accused can have time to relax a
6 little bit - 20 minutes - after which we will call on each one of you to
7 see whether you wish to postpone your cross-examination until some other
8 time or whether you wish to proceed today and maybe come back with further
9 questions at a later stage. This we will leave in your hands and we'll
10 deal with it after the break. Thank you.
11 Yes, Mr. Bourgon.
12 MR. BOURGON: Mr. President, maybe I suggest if we could ...
13 [Trial Chamber confers]
14 JUDGE AGIUS: Yes, one moment. In addition to what I said,
15 perhaps if there is any of the Defence teams, if there is any of the
16 Defence teams that can give us feedback now before the break, then perhaps
17 it will be more useful for us to be able to prepare better for the
18 remaining time that we have today.
19 Yes, I noticed you standing, Mr. Bourgon.
20 MR. BOURGON: Thank you, Mr. President. I was just about to
21 suggest that maybe the Defence teams, we could provide you right away with
22 our submissions in this regard so that we can address maybe what we do if
23 we cannot proceed today. On behalf of the Accused Drago Nikolic we will
24 not be prepared to continue cross-examination today but we could be ready
25 the first opportunity tomorrow. Thank you, Mr. President.
1 JUDGE AGIUS: Thank you.
2 Can I start with you, Mr. Ostojic.
3 MR. OSTOJIC: Your Honour, we've tried to look at the documents
4 and I haven't had a chance obviously to review them in detail. We would
5 prefer not to proceed. I mean, we are ready, as I think the Court noted
6 yesterday, to ask further questions of her. They might end up being
7 inconsistent with some of the things she may or may not have said. But I
8 think it would be more practical to not proceed now, to suspend it for a
9 matter of days, whatever the Court's desire is, and bring her back after
10 we've had an opportunity to digest the material.
11 JUDGE AGIUS: I thank you, Mr. Ostojic.
12 Does the Borovcanin Defence team wish to address the Chamber?
13 MR. STOJANOVIC: [Interpretation] Your Honour, we've announced that
14 we will not ask any questions of this witness, and the discussion of today
15 does not change our position in this respect.
16 JUDGE AGIUS: All right. I thank you. I-- that's why I wanted to
17 ask you in any case, because it could have changed your position.
18 Yes, Mr. Ostojic.
19 MR. OSTOJIC: Just -- we're not getting the transcript on the
20 screen, so we're trying to follow it, both.
21 JUDGE AGIUS: I am having it. So are my colleagues.
22 MR. OSTOJIC: Mine stops on page 22, line 8, in the middle of
23 Mr. Bourgon's discussion.
24 JUDGE AGIUS: Yes, can -- can we proceed and you check on -- the
25 transcript on the other monitor, maybe? And then we'll soon be having a
1 break and we will look into the matter.
2 Madam Fauveau.
3 MS. FAUVEAU: [Interpretation] Mr. President, I would rather
4 consult the documents and cross-examine the witness later tomorrow. We
5 would be ready tomorrow for this cross-examination.
6 JUDGE AGIUS: I thank you.
7 Mr. Josse.
8 MR. JOSSE: Your Honour, I would be lying if I was to suggest to
9 the Court that these documents are going to make any profound difference
10 to my cross-examination. I am confident they are not going to make any
11 difference; however, I am anxious to maintain our position of, in effect,
12 going after my learned friends. It was something we had agreed with them
13 and it is a position we would like to maintain. I am bound to say the
14 cross-examination will be about 20 minutes in total.
15 JUDGE AGIUS: I thank you, and I thank you also for the approach
16 you take, which I can assure you the Trial Chamber will respect because --
17 yeah, anyway, I will not say anything further.
18 Mr. Haynes.
19 MR. HAYNES: As I think the Chamber knows, we don't propose to
20 cross-examine Ms. Frease.
21 JUDGE AGIUS: But your position remains the same?
22 MR. HAYNES: Yes.
23 JUDGE AGIUS: Thank you. So I think we'll have a break. But
24 before we do so, I would like to know what do you propose to do if we
25 suspend the testimony of Ms. Frease until a later time?
1 MR. NICHOLLS: That's what I was going to raise, Your Honours.
2 PW-104 is in the waiting-room and he's been there for a couple of hours.
3 So if he is not going to start today, I would like to release him rather
4 than keep him waiting. I -- I have -- I haven't personally received it,
5 but I have been told there was an e-mail from Mr. Meek that strenuously
6 objected to him going forward today, and in all fairness to the Defence,
7 they expected a delay because they thought that Ms. Frease would continue,
8 and I -- I believe Ms. Fauveau also said that she did not want any other
9 witnesses going forward. So I think the Defence position is that they are
10 not ready for another witness, and -- we are ready, but if that's the case
11 and as I say, I can understand it, then I would rather release him as soon
12 as possible rather than hold him longer in that room.
13 JUDGE AGIUS: How long is his testimony expected to last in
15 MR. NICHOLLS: It's difficult for me to say exactly, but I think
16 about an hour or around a session. An hour, depending on how it goes. Not
17 too long. Not hours and hours, so they would reach him today. But I
18 think their position was that they did not want him to start because
19 they're just not prepared for him.
20 JUDGE AGIUS: I see two possible options, without committing, of
21 course, the Trial Chamber. If PW-104 starts today, will he be
22 cross-examined -- not today, but tomorrow, that means Ms. Frease's
23 suspension of her testimony will out -- last a good part of tomorrow or
24 maybe the entire of tomorrow. Or if we decide to proceed with PW-104's
25 testimony in chief only today, does that mean, or does that entail that
1 he will return for cross-examination when the cross-examination of
2 Ms. Frease has been concluded? I would like to hear comments or --
3 on this.
4 MR. NICHOLLS: That's a difficulty I would like to avoid. Both --
5 mainly for the witness's sake, but also for logistical reasons. Without
6 getting into it in open session, the witness is quite nervous, or was when
7 I saw him a couple days ago, does not feel particularly good, and I would
8 rather not prolong and put gaps in his testimony in requiring him to come
9 back at some other time. So for that reason -- just prefer that for the
10 witness's sake I would rather start and continue and have him finish in
11 one block and have it over with, but otherwise, depending on the Court's
12 decision, it would impact on when he is available. I can't remember the
13 estimate, but I think there is a significant amount of cross-examination
15 JUDGE AGIUS: I think five hours. Five hours, and there are still
16 about another five hours left for Stefanie Frease.
17 So I think we will have a break now. We need to discuss further.
18 [Trial Chamber confers]
19 JUDGE AGIUS: Would it be acceptable to the Defence teams if you
20 start the cross-examination of PW-104 tomorrow? That would mean you will
21 acquire more time in relation to Stefanie Frease. Yeah, yeah, we'll hear
22 the direct today, obviously. And then we continue -- we start -- there
23 won't be any cross-examinations today, unless someone wishes to go ahead.
24 And we'll have the cross-examinations tomorrow so that we can send this
25 man home before the weekend. Agreed? Agreed? All right.
1 I think -- so we will have the 20-minute break that we promised
2 you, and we'll come back -- first I need to explain to Ms. Frease, please.
3 So ask her to show in -- for her to come in for a short explanation.
4 Yeah, but they cannot explain to her. You will? All right.
5 Okay. Thank you.
6 So we will have PW-104. Thank you.
7 MR. BOURGON: Sorry, Mr. President. If Ms. -- if Ms. Frease is
8 not going to come back in the courtroom, I would like to make sure that
9 because we have new documents, that there will not be any communications
10 between the Prosecution and the witness.
11 JUDGE AGIUS: Okay. Then bring her at the beginning of the next
12 session and I will explain to her. We can bring her right now?
13 JUDGE KWON: Later.
14 --- Recess taken at 3.51 p.m.
15 --- On resuming at 4.16 p.m.
16 [The witness entered court]
17 WITNESS: STEFANIE FREASE [Resumed]
18 JUDGE AGIUS: Good afternoon to you, Ms. Frease.
19 THE WITNESS: Good afternoon.
20 JUDGE AGIUS: I regret to inform you that we will not proceed with
21 your testimony today.
22 THE WITNESS: Okay.
23 JUDGE AGIUS: And at least for the most part of tomorrow. There
24 has arisen a procedural matter that we had to deal with. And because of
25 that we are going to proceed with the testimony of someone else and then
1 continue the cross-examinations at a -- your cross-examination afterwards.
2 In the meantime it's my responsibility to draw your attention that you are
3 still in the process of testifying, and that you are not to discuss or
4 allow the Prosecution to discuss with you matters related to your -- to
5 your testimony.
6 THE WITNESS: Yes.
7 JUDGE AGIUS: I suppose you know the procedure and that should be
8 clear enough for you. I also wanted to apologise to you for having kept
9 you waiting for over two hours, not knowing what's happening. I suppose
10 in due course you will become aware of the problems that we have had, and
11 the reason why we had to postpone your cross-examination.
12 THE WITNESS: Thank you.
13 JUDGE AGIUS: Okay. Thank you.
14 [The witness withdrew]
15 JUDGE AGIUS: Mr. Meek, I understand you wish to address the
16 Chamber before the next witness is ushered in.
17 MR. MEEK: Yes, Your Honour. With all due respect, we would like
18 to make a record and preserve the record. We have a motion to bar the
19 testimony of this witness on several grounds.
20 JUDGE AGIUS: This witness?
21 MR. MEEK: This upcoming witness, 104. Your Honour, this
22 interview of this witness - if you don't know this, it will come out if
23 you don't grant this motion - the interview conducted with this witness
24 breached all of the OTP's very own internal procedures in conducting
25 interviews. In every interview that is tape-recorded they always say when
1 they take a break, "We won't talk about the case." We come back in --
2 they go on the record and they say, "We haven't talked about the case."
3 That's their internal policy. In this case the interviewer, the attorney
4 and the investigator took a break, we don't know what happened outside
5 that break, it's not on the record. The witness was brought back in, and
6 then all of the sudden the witness was asked questions changing his
7 prior -- previous testimony, the statement he had previously given. We
8 don't know what happened with that. We do know that this witness had to
9 have been known by the OTP at least as early as 2000, because that was
10 when the Zvornik Brigade documents were received.
11 Again, we have no information whatsoever as to what was said
12 outside the interview, the technical interview, violating all the rules of
13 the OTP. We ask the testimony be barred on that grounds. If not,
14 Your Honours, we ask that this witness must be read his rights, that he
15 does have a right to a lawyer, et cetera.
16 Further, Your Honours, we would ask you to -- we brought this up
17 before --
18 JUDGE AGIUS: What -- what right are you referring to? That --
19 as -- as --
20 MR. MEEK: His rights as a suspect, Your Honour.
21 JUDGE AGIUS: I see. Then the right as a suspect that does not
22 entitle him to have a lawyer here present while he is giving testimony.
23 MR. MEEK: No. No, no.
24 JUDGE AGIUS: That's what we have on the transcript.
25 MR. MEEK: The reason, Judge --
1 JUDGE AGIUS: "If not, Your Honour, we ask that this witness must
2 be read his rights that he does have a right to a lawyer," et cetera. Of
3 course if we ask that we caution him in terms of Rule 90, we will do so.
4 We will do that with every -- every witness that becomes necessary, when
5 it becomes necessary.
6 MR. MEEK: That's what we request, Your Honour.
7 JUDGE AGIUS: Okay.
8 MR. MEEK: Secondly, Your Honour, we ask you -- we have raised
9 this before, and for the record we're going to raise it again. We ask
10 this Trial Chamber to effectively entertain a judicial estoppel. The
11 Prosecutors in this case are taking an inconsistent position from a former
12 proceeding, and that is Blagojevic and Jokic. This inconsistency, we
13 believe, undermines the fairness of the trial and violates our client's
14 right to judicial process, fundamentally violating his right to a fair
15 trial. In Blagojevic and Jokic, the same Prosecution team with the same
16 facts said security was not involved. They didn't hold a candle, they had
17 no command, no nothing. Now we have just the opposite. We have an
18 inconsistent position, it's inconsistent, Judge, and basically the bottom
19 line, and we're not saying necessarily bad faith even has to come in the
20 picture. The bad faith shouldn't be a condition. The reason we ask for
21 judicial estoppel is because if you don't, Judge, it's just going to
22 corrupt the judicial process. It's not right. They can't go in one case,
23 same facts, and say one thing, and then come along here in this case and
24 say something completely inconsistent. So on those two grounds, Judge, we
25 ask that this witness's testimony be barred.
1 JUDGE AGIUS: I thank you, Mr. Meek.
2 Who is going to respond to that?
3 Mr. McCloskey.
4 MR. McCLOSKEY: If I can respond to the -- I think what he's
5 called the estoppel theory first, is it's an issue that involves the
6 Blagojevic case and I will respond to it briefly. Something of this kind
7 of potential, import, and significance based on the record of a previous
8 case really should not be -- again, I am a broken record on this, it
9 should not be brought up at the last minute like this, though -- but I can
10 respond. First of all, the simplest response is that there is no
11 inconsistency. I, nor the Prosecution in the previous case, no one ever
12 suggested security was not involved. Security has always been the --
13 the -- in the theme of -- in the theme and theory of the case has always
14 been the people that were on the ground coordinating, organising, and
15 facilitating the -- the detention, the transportation, and the execution
16 of this case.
17 Now, as I have been in other cases involving commanders,
18 General Krstic, Blagojevic, Obrenovic, the Defences of those commanders
19 has always been: These security officers have done this on their own
20 acting under their own chain of command outside of my authority. And my
21 arguments have been very briefly that a security officer is not a
22 commander. A security officer is only empowered to act under the orders
23 of his commander. And therefore, I think Mr. Ostojic's favourite quote of
24 mine is that Beara is an empty vessel, which is true, until he is filled
25 with the orders of his commander, General Mladic, and then he takes on his
1 role as a security officer, dealing with the military police, dealing with
2 prisoners. And this has always been the case, and we have never suggested
3 security officers are not involved.
4 I took a plea from Momir Nikolic who admitted his guilt in --
5 in -- in this case, and he was a security officer, and his testimony in
6 this courtroom as to the involvement of other security officers. I mean,
7 I don't know where they're getting this. It can be dealt with fairly
8 quickly, but again these sorts of broad claims like this, I think it would
9 be better had they -- they been something that we have a little bit of
10 notice of. I can respond to this one easily, as I can with most of them.
11 But I think in the future it would be better if we had a little more
12 preparation for this sort of thing.
13 JUDGE AGIUS: What about the first point raised by Mr. Meek in
14 relation to the statement of the witness.
15 MR. NICHOLLS: I can respond to that, Your Honour. Mr. Meek's
16 representations are completely inaccurate in several respects. This was a
17 witness interview held in -- in Zvornik. At one point we did take a
18 break, and the witness answered some questions off of the tape, because he
19 was not willing to go on, on tape. The -- an information report was
20 written up immediately that night, explaining exactly what happened and
21 why. The witness at no time changed any of his testimony, and there is a
22 record of exactly what happened during the break.
23 In addition, the next day -- not immediately after, but two
24 days -- the second day following the initial interview, I met the witness
25 again somewhere else and went on tape in order to put on tape, on the
1 record, exactly what had happened. Now, there is no inconsistency, I
2 would suggest, in anything the witness has said. What the witness said
3 before we went off tape, in answer to some questions that I can't specify
4 here in open session, is that I can't speak about that. I can't talk
5 about that. I'm not willing to talk about that. I have that interview in
6 Sanction. I'm very happy to play that for Your Honours so Your Honours
7 can hear the witness's voice and hear the way he felt at that time. They
8 can cross-examine the witness about what happened, and we didn't violate
9 any policy. If a witness at this point is unable or scared to go on and
10 then we -- we memoralise it in writing as a way any written statement
11 would be, there is no prejudice whatsoever. And, as I said, I did
12 everything I could to make it very clear. I wrote an information report
13 immediately saying why we had taken the break and what happened during the
14 break. And then I met the witness again to confirm on tape that that
15 information report was accurate. And they have all of that, they've had
16 it for three months.
17 Now, if he may be saying again well, I don't trust you, I think
18 you lied in your information report, that's another thing. But then
19 that's something he can follow up in his cross-examination of the witness.
20 But certainly none of it would rise to the extraordinary remedy of barring
21 probative evidence. And I think when the witness testifies you will see
22 that he was not inconsistent and I will move to put in the interview, the
23 information report and the subsequent interview in order to rebut these
24 challenges which have been made against me.
25 JUDGE AGIUS: Before you sit down, Mr. Nicholls, do you wish to
1 take a position about the third proposition of the Beara Defence team,
2 namely that we should caution this witness?
3 MR. NICHOLLS: No, I don't -- I don't object to a caution. I --
4 this is a -- this was a witness, not a suspect interview. I don't -- I
5 don't think a caution is strictly necessary in this case. I don't see
6 where they see it in his interview, because the substance, without saying
7 what I can -- can we go into private session for one moment?
8 JUDGE AGIUS: Certainly. Let's go into private session for a
9 short while.
10 [Private session]
5 [Open session]
6 JUDGE AGIUS: So we are back in open session. We have three
7 issues that we have to decide upon that have been raised by Mr. Meek and
8 responded to by Mr. McCloskey and Mr. Nicholls respectively. We will take
9 them one by one. The first one is to strike off the statement of this
10 witness on the basis that it was irregularly taken, to wit in
11 contravention of the internal rules of the Office of the Prosecutor. We
12 have heard the parties' submissions on the issue. We believe this matter
13 can be dealt with by the parties either during examination-in-chief or
14 cross-examination or both. And we would then be in a position to evaluate
15 better the suggestion or the submission of the Beara Defence team
17 The second submission as regards estoppel, we do not see a nexus
18 with the testimony of this particular witness a priori, so there we do not
19 see a reason why the submission that you have made, Mr. Meek, and which
20 you can proceed with in the course of this trial, as we go along, should
21 serve as a reason why this witness in particular should come into course
22 and bring in turn an estoppel as we know it.
23 The third matter that you raised is whether we should grant -- we
24 should caution the witness before he starts giving evidence as to his
25 position or rights under Rule 90 out of an abundance of caution, not
1 knowing exactly the details because we are not provided with the statement
2 beforehand, we will do so after he has been sworn in. We will caution him
4 Any further matters you would like to raise in relation to this
5 witness before he comes in?
6 Yes, Mr. Bourgon.
7 MR. BOURGON: Thank you, Mr. President. I just like to -- I know
8 my colleague requested that the witness be given a caution or rights. But
9 I think what we are discussing here, when we look under Rule 90, I don't
10 think it should be regarded as a caution. In other cases, in many
11 respects, whenever a witness comes in and one of the parties believes it
12 is a good procedure to remind the witness that he may refuse to answer and
13 then that he may be forced to answer by the Trial Chamber with the
14 consequence that whatever he says could not be used in other proceedings,
15 some Trial Chambers have used this in the past in giving this type of
16 information to all witnesses appearing before them. So I would like to
17 avoid that we consider this being a caution or a legal caution in any
18 way. It's information we give to witnesses about the procedure and how
19 they will testify. Now, we will recall with the last witness I made a
20 request under Rule 91 Alpha about the witness being reminded about his
21 right to tell the truth. Now, that's -- this for me has a legal
22 connotation, but the first one not. Thank you, Mr. President.
23 JUDGE AGIUS: I prefer not to comment on that and proceed and not
24 waste time on this.
25 Let's bring the witness in, please.
1 [The witness entered court]
2 JUDGE AGIUS: Good afternoon to you, sir. And welcome to this
3 Tribunal. We are about to start with your testimony. Madam Usher is
4 going to hand to you the text of a solemn declaration that you are
5 required to make by our Rules, namely to testify the truth. Please read
6 it out aloud, and that will be your undertaking with us.
7 THE WITNESS: [Interpretation] I solemnly declare that I will speak
8 the truth, the whole truth, and nothing but the truth.
9 WITNESS: WITNESS PW-104
10 [Witness answered through interpreter]
11 JUDGE AGIUS: I thank you, sir. Please make yourself comfortable.
12 We can draw the curtains up. Let me explain to you briefly a few matters.
13 Mr. Nicholls will be putting some questions to you. We have been asked to
14 grant you some protective measures, namely the use of a pseudonym and also
15 facial distortion. I trust these have been explained to you. We have
16 granted these provisional -- these protective measures and we want to hear
17 from you whether they are to your satisfaction.
18 THE WITNESS: [Interpretation] Yes.
19 JUDGE AGIUS: Also, at some points in time during your testimony,
20 we will go in private session, the whole exercise being to try our best to
21 hide your identity from the public.
22 Mr. Nicholls.
23 MR. NICHOLLS: Thank you, Your Honour. And I will say that quite
24 a bit of my direct I will be requesting private session. Because of the
1 First thing, could I hand --
2 JUDGE AGIUS: Just before you start.
3 Now, I don't know what the substance of your testimony is going to
4 be, sir. But it is my duty to explain to you a right that you have not to
5 incriminate yourself. This is a limited right; it's not an absolute right
6 in our Tribunal. What we have laid down in our rules is that a witness
7 may object to making a statement which might tend to incriminate him. So
8 you have a right, you would have a right to object to answer one or more
9 questions that are put to you. If you do so, however, we have the
10 discretion to compel you to answer the question. We may exempt you from
11 answering the question, but we can ask you to answer it. If we compel you
12 to answer a question, you have a guarantee under our Rules that your
13 testimony and reply to those questions will not be used as evidence in a
14 subsequent possible prosecution against you for any offence except if we
15 catch you giving false testimony. Do you understand the import of what I
16 have explained to you?
17 THE WITNESS: [Interpretation] Yes.
18 JUDGE AGIUS: All right. So I think we can safely proceed now.
19 Mr. Nicholls, he's all yours.
20 MR. NICHOLLS: Thank you, Your Honours.
21 First, if I could hand the witness - excuse me - the pseudonym
22 sheet which is P02457.
23 Examination by Mr. Nicholls:
24 Q. Sir, I will ask you to please look at that, read it quietly to
25 yourself, don't read the name on it out loud, but could you please confirm
1 to Their Honours that your name is printed on that sheet of paper?
2 A. Yes.
3 MR. NICHOLLS: Could that be shown to my colleagues.
4 Q. And the other thing I want to do, sir, is apologise to you, that
5 you have been waiting for, I think, well over two hours in a little room.
6 I want you to know we were -- as I told you, that sometimes happens when
7 the lawyers are arguing about matters that have nothing to do the next
8 witness coming up, it had nothing really to do with your testimony. For
9 the most part we had problems talking about an earlier witness, and I'm
10 sorry that you had to wait so long.
11 MR. NICHOLLS: Could we go into private session, please, for the
12 preliminary stuff.
13 JUDGE AGIUS: Certainly. Let's go into private session, please.
14 [Private session]
11 Pages 7936-7939 redacted. Private session
10 [Open session]
11 JUDGE AGIUS: We are in open session now. Thank you.
12 MR. NICHOLLS:
13 Q. At this time period that I have identified for you, can you tell
14 me about any contact you had with officers from the Zvornik Brigade? We
15 are now in open session, Witness.
16 A. Yes.
17 Q. Can you tell me if you had any contact, any meetings with members
18 of the Zvornik Brigade or other VRS officers at this time, directly before
19 you did what you have described doing in private session?
20 A. Both with the officers of the Zvornik Brigade as well as with some
21 other officers. I did have contacts with them.
22 Q. Okay. And can you tell me where that occurred, which physical
24 A. With the Zvornik Brigade officers, I had contacts in my own office
25 in the municipality building. As for the other officers that I had
1 contacts with, those took place in the barracks of the Zvornik Brigade.
2 Q. Okay. What I'm asking you about is the contact, the meeting you
3 had in the barracks of the Zvornik Brigade at this time, right after the
4 fall of Srebrenica. Tell me who was present at this meeting.
5 A. I can't remember who was present, which officers of the Zvornik
6 Brigade were present. I know that I was there, as well as the officer who
7 introduced himself as Colonel Beara.
8 Q. Now, this officer who -- how did you come to be at this meeting at
9 the Zvornik Brigade where an officer introduced himself as Colonel Beara,
10 why did you go to the Zvornik Brigade to attend this meeting?
11 A. I went to the Zvornik Brigade every time I was invited there. On
12 that particular occasion I had been invited but I can't remember who
13 invited me.
14 Q. Okay. If you remember, approximately what time of day was it when
15 you were -- when Colonel Beara introduced himself to you?
16 A. No, I can't remember.
17 Q. In your own words, I want you to describe to me and to
18 Their Honours exactly what took place during this meeting at the
19 Zvornik Brigade headquarters, and in particular what you remember
20 Colonel Beara saying. Take your time, think carefully, and just tell me
21 what was said.
22 A. It was not a meeting with an agenda, a protocol or meeting. It
23 looked more like a briefing; we were all standing, we never sat down. As
24 I arrived in the barracks I asked whether Colonel Pandurevic was there,
25 and I was told that he wasn't. I went into a room where I was met by
1 Colonel Beara, and he delivered a brief speech, a monologue which went
2 like this: "We have a lot of prisoners and it is very hard for us to
3 control them. They are at various locations in the Zvornik municipality.
4 We have to get rid of them. I expect assistance from the municipality."
5 I was surprised. I didn't say anything. He then said that he was
6 in command of the barracks and that I should obey his orders. That was
7 more or less that.
8 Q. And specifically when Colonel Beara said we have to get rid of
9 these prisoners, how did he say they were going to get rid of them?
10 A. No.
11 Q. Let me ask you - think carefully - what did Beara say was going to
12 happen to the prisoners?
13 MR. MEEK: Your Honour.
14 JUDGE AGIUS: Yes, Mr. Meek.
15 MR. MEEK: This question has been asked and answered two times
16 now, and I don't understand if the Prosecutor doesn't like the answer, but
17 this is becoming redundant. This is the second time this question has
18 been asked and answered and I object.
19 JUDGE AGIUS: Do you have -- do you wish to respond to that,
20 Mr. Nicholls?
21 MR. NICHOLLS: Yes, the -- the answer before was get -- they had
22 to get rid of the prisoners. I want to make sure there is no problem with
23 the translation that's -- and that he cannot give a more complete answer
24 because he, in the past has explained that in more detail.
25 MR. MEEK: First off, Judge, first off, Judge, I object -- I
1 really do object to him giving a talking argument, a speaking argument in
2 front of this witness while the witness has got headphones on.
3 JUDGE AGIUS: Yes, Mr. Meek.
4 Stop, Mr. Nicholls.
5 Let's discuss -- let's confer.
6 [Trial Chamber confers]
7 JUDGE AGIUS: Yes. Our position is the following: If you look at
8 page 45, line 5, please. The question that Mr. Nicholls put to the
9 witness was, "And specifically when Colonel Beara said we have to get rid
10 of those -- these prisoners, how did he say they were going to get rid of
11 them?" And the answer that we have in the transcript is "no." Which in
12 itself is almost unintelligible because it does not answer the question.
13 Then we have a second question, which our opinion is that it
14 shouldn't be put. What should -- the way we should proceed is to ask the
15 same question that you asked before to which he answered "no" and the
16 witness will explain exactly what he meant to say, because "no" as such to
17 that question doesn't make sense. It doesn't follow the question.
18 Because the question was, how did he say they were going to get rid of
20 So we stick to that question, no further questions on -- on the --
21 on the issue. He needs to explain his -- his answer. Or complete it
22 anyway. Because I don't know whether it's a question of a wrong
23 transcript or translation or whatever.
24 So, Witness, let me take you in my hands on this. Mr. Nicholls
25 asked you: "When Colonel Beara said, 'We have to get rid of these
1 prisoners,' how did he say they were going to get rid of them?"
2 THE WITNESS: [Interpretation] The colonel said, "We have to get
3 rid of them."
4 JUDGE AGIUS: Yeah, but --
5 THE WITNESS: [Interpretation] And he also said that he expected
6 our help in taking care of that.
7 JUDGE AGIUS: But the question was --
8 THE WITNESS: [Interpretation] In other words, in burying the
10 JUDGE AGIUS: Thank you.
11 He's back in your hands, Mr. Nicholls.
12 MR. NICHOLLS:
13 Q. Did Colonel Beara say who gave him the order to get rid of the
14 prisoners in such a way that all of their bodies would need to be buried?
15 Did he tell you who gave him that order?
16 A. Yes, he said that that order was from two presidents. I did not
17 ask him. I did not ask any questions.
18 MR. NICHOLLS: Can we go into private session, please.
19 JUDGE AGIUS: By all means. Let's go into private session,
21 [Private session]
11 Pages 7945-7946 redacted. Private session
15 [Open session]
16 JUDGE AGIUS: All right. For the record, the -- Mr. Nicholls for
17 the Prosecution has concluded his examination-in-chief. One moment, we
18 need to confer.
19 [Trial Chamber confers]
20 JUDGE AGIUS: Just in case, is there any of the Defence teams that
21 is in a position and wishes to start the cross-examination of the witness
23 Madam Fauveau.
24 MS. FAUVEAU: [Interpretation] No, Your Honour, but I'd like to
25 inform you that we will have no questions for the witness. The Defence of
1 General Miletic won't have any questions to put to this witness.
2 JUDGE AGIUS: I thank you so much, Madam Fauveau.
3 So I saw you switching on and then switching off your mic. All
5 So, sir, unfortunately the way things happened today, which have
6 got nothing to do -- to deal with you, they were procedural issues related
7 to something completely different, has made it necessary to start with
8 your witness [sic] today, which was unexpected. None of the Defence teams
9 expected us to start with your witness [sic] today. We were supposed to
10 start with it tomorrow. Or perhaps even -- even later. The result is
11 that we have a responsibility towards everyone here, Prosecution and
12 Defence, and we will need to give the Defence time in order to prepare for
13 their cross-examination, which will happen tomorrow. So tomorrow we hope
14 to be able to finish with your testimony. It should be possible. And
15 after that you will be free to go home. I hope you understand, and that
16 you understand and accept this.
17 Okay. I take it that he has understood what I said.
18 Sir, we'll see you again tomorrow afternoon at 2.15, and we hope
19 to conclude your testimony then.
20 [The witness withdrew]
21 JUDGE AGIUS: Now, Mr. Nicholls, we'll try to utilise some of the
22 time profitably. You will recall Witness 157, if I've got the number
23 right. Now, his testimony or his previous statement was admitted pursuant
24 to Rule 92 bis or -- I think it was 92 bis, together with a series of
25 documents, and that was part of our decision, date of which escapes me at
1 the moment.
2 There were, however -- and in our decision we had intimated this,
3 that there were other documents that were not introduced with that witness
4 in that other case, but had been made use of in the course of his
5 testimony. Those couldn't be introduced in the records of this case,
6 pursuant to Rule 92 bis, because they weren't being offered. We had
7 pointed this out to you, and it must have left an impression on you
8 because later on you provided everyone, including ourselves, with a
9 dossier containing these few documents. Leaving them in a state of limbo,
10 we don't know whether you are tendering them or whether you are not
11 tendering them. I think I can be more precise by going straight to the
12 details, if you require me to.
13 MR. NICHOLLS: I think I can respond, Your Honour. I'm prepared
14 to. What I provided the Court on 16 of February, and I believe this is a
15 92 ter witness, I stand to be corrected, but was a chart showing the
16 exhibits which had gone in with his testimony in Krstic and the
17 corresponding exhibits and 65 ter numbers for the exhibits which had been
18 tendered either through him or through other witnesses in this case.
19 What it boils down to is there were two exhibits in Krstic which
20 have not been introduced in this case with 65 ter numbers; those were P331
21 and P336, the Krstic numbers. Those were the only two at issue, and as
22 Your Honours rightly pointed out, it might be difficult to follow the
23 transcript without having those exhibits, because you wouldn't know what
24 was being referred to.
25 Very briefly, the reason this arose is because all of the other 92
1 ter witnesses started out at 92 bis and therefore all of their transcripts
2 had been -- all of their exhibits from the previous testimony had been put
3 in as part of the package. This one was converted at a later date in an
4 effort to save time.
5 As regards P331 and 336, I would tender those, but only for the --
6 for the limited purpose as an aide to follow in the transcript, not for
7 the substance of those exhibits. Now, in fact, I checked the transcript,
8 and -- and all the witness in his Krstic testimony says is, "Yes, that's
9 an intercept," and he gives the date. He authenticates these two
10 documents which we have not put in, in our case.
11 There is a specific procedure we followed for putting in
12 intercepts in this case and for tendering them subject that they would be
13 admitted later after we finish with Ms. Frease. So I am -- and I
14 apologise for not being clearer in the filing on the 16th of February.
15 But those two exhibits are being tendered for the limited purpose of
16 allowing the Trial Chamber to follow exactly what was being discussed in
17 the Krstic testimony. I hope that's reasonably clear.
18 JUDGE AGIUS: Yes. Thank you. Does anyone of the Defence teams
19 wish to comment on this? We hear none. I think we can close it there,
20 leave it there. One moment. I will make a note of it.
21 So the position is we have to adjourn today for reasons well known
22 to you already. We will take up this witness tomorrow again. Yes, Mr.
24 MR. NICHOLLS: I have one unrelated point I could raise, Your
25 Honours. During the testimony of PW-101, if you will recall Mr. Bourgon
1 used in his cross-examination statements of unknown persons -- or not
2 statements, I don't know if they were statements, notes, whatever, but
3 he -- information from unknown persons that are unknown to me, perhaps
4 unknown to the Court. And the -- the reason I think given was that there
5 was going to be a request for protective measures or something like that.
6 So, as I recall, Your Honours took that under advisement and I wondered if
7 that's something we could discuss, because I'm still very eager to know
8 who said those things.
9 JUDGE AGIUS: All right. We have of course been discussing that,
10 and you can't even imagine at what lengths. And we will continue
11 discussing amongst ourselves that issue and as it relates to other issues,
12 and our intention was precisely to come back to you to give you a
13 direction on how this and such like incidents in the future will be
14 regulated and how you have to regulate yourselves. So expect us to come
16 What comes as a surprise is that you wish to address us on the
17 merit of -- of -- because, as I remember, at the time you did make some --
18 some submissions and even acknowledged some matters like you don't want,
19 and you do not pretend to have this and that from -- from Mr. Bourgon. So
20 we were acting under the assumption that this matter had been dealt with
21 by you. But of course if you wish, and anyone else for that matter, from
22 the Defence teams, to make submissions on this, we can meet in 15 minutes'
23 time or 20 minutes' time and -- or now, and have submissions.
24 Yes, Mr. Josse.
25 MR. JOSSE: Your Honour, if Mr. Bourgon will excuse me, at the
1 time that my learned friend Mr. Bourgon and my learned friend Mr. Nicholls
2 were having this argument in front of Your Honours, I thought of
3 intervening but chose not to because it seemed to me that it was really a
4 matter between them and at that time it wouldn't be appropriate. It's of
5 course a few days now, but I remember one thought that crossed my mind in
6 relation to what Mr. Nicholls was saying is where in the Rules was he
7 saying that it was incumbent on the Defence to provide the material that
8 he was inviting Mr. Bourgon to provide? And perhaps I could raise that
9 issue now.
10 One other thing, and that's this: It is a matter that may be of
11 concern to other members of the Defence bar, as well as clearly of concern
12 to the Prosecution. If the Chamber can in some way guide us as to what is
13 going through the Chamber's minds, then that might be of real help in
14 submissions that we might want to make. I think the point I'm trying to
15 make is it is not just a matter of interest to Mr. Bourgon, it's of
16 interest to many of us.
17 JUDGE AGIUS: And I couldn't agree more, Mr. Josse, and I thank
18 you so much for that intervention, because more or less it reflects the
19 concerns that we have. The feeling actually that we have, that generally
20 speaking, let me not be particular, there is a need for some guidance, and
21 what we had in mind is to provide you with that guidance. Now we --
22 [Trial Chamber confers]
23 JUDGE AGIUS: As I said earlier on, we attach to these issues
24 great importance, and, since the approach has varied from one Defence team
25 to the other, we became convinced all the more that we need to direct you
1 on this for the duration of the rest of -- of the case. So we'll be
2 coming back to you, but we would like to know, because we were labouring
3 under a different presumption, whether any one of you would either like to
4 make oral submissions or written submissions. We don't have a motion as
5 such. In other words, we -- we had a submission made by Mr. Bourgon at
6 some point in time to which you responded, and to which he again
7 responded, and after which, or in the wake of which we told you we'll come
8 back to you on this and give you a more or less direction. But in the
9 course of our discussions, of course we realised that it is -- you broaden
10 it up and it touches on what one should put to a -- a witness and -- and
11 in cross-examination and in what manner. So the two are related and our
12 intention was to come back to you on everything.
13 If there are -- yes, Mr. Bourgon.
14 MR. BOURGON: Thank you, Mr. President. I'd like to join with my
15 colleague has said just, Mr. Josse, concerning what exactly the Trial
16 Chamber is looking for in terms of submissions. As far as I am concerned,
17 during the cross-examination of this particular witness I mentioned the
18 fact, and I will simply say over what I said then, which is if I have
19 information in my possession, it must be put to the witness and I can do
20 so as long as I have a reasonable basis, I have a foundation to put some
21 information that exists, I have a duty to put it to the witness. And I
22 also said that I do not feel any obligation whatsoever to inform the
23 Prosecution of this information unless I have a document that I intend to
24 use during cross-examination. And that was the extent of my submission.
25 Now, I see that from what Mr. President, you just mentioned, about
1 how information or questions should be put to the witness during
2 cross-examination, I think that's a different topic. For this reason, I
3 would appreciate if you could -- as was suggested by my colleague,
4 Mr. Josse, if the Trial Chamber can come up with a clear question, is the
5 question what the Defence should give in advance of cross-examination to
6 the Prosecution, or is the question, how should information in the
7 possession of the Defence be placed to a witness during cross-examination?
8 I think these are two very different matters.
9 JUDGE AGIUS: Yes, they are different but related.
10 MR. BOURGON: I would be very glad to answer those matters,
11 whether in writing or orally, as long as we know what exactly is the issue
12 that we are talking about. Thank you, Mr. President.
13 JUDGE AGIUS: We will be coming back to you on -- on this.
14 Yes, I see Mr. McCloskey.
15 MR. McCLOSKEY: Just on a related matter, Mr. President, I've
16 asked Defence counsel this, but if -- I would remind them of their
17 obligations to inform us of any alibi evidence that they intend to lead.
18 JUDGE AGIUS: I think we -- there is one decision that we handed
19 down in the early stages of the case that that would -- dealt with ...
20 MR. McCLOSKEY: We haven't heard of any evidence -- there may have
21 been one response roughly related to alibi but I heard anything about what
22 Defence is suggesting, for example whether Drago Nikolic is at the
23 Orahovac school or whether Drago Nikolic is at the execution site. We
24 have heard evidence or information I should say, not evidence, that there
25 is a person that drove a truck and took the boy from the -- from the
1 execution site to -- took away. Is that person also suggesting I -- I
2 would imagine, that Drago Nikolic was not at the execution site. If so, I
3 think that's an alibi. So we have not really heard anything regarding
4 alibis. We haven't pushed it. I occasionally make reminders, but we've
5 also -- we've seen Colonel Beara has now been put at the Standard barracks
6 and I'm not sure I've heard -- my recollection may be refreshed but I'm
7 not sure anyone has told me whether there is any alibi or -- regarding
8 Colonel Beara as well.
9 JUDGE AGIUS: Yes, Mr. Bourgon.
10 MR. BOURGON: Thank you, Mr. President. I really don't know why
11 my colleague keeps on raising the issue of special defence or alibi. He
12 knows what alibi is. He knows that he has charged his case on the basis
13 of a joint criminal enterprise. He has had answers at least from the
14 Defence of our client. I believe he has also had answers from the others
15 and there is no point of coming back to the issue of alibi over and over
16 again. We have a defence, we are leading this defence, we are answering
17 the case they are leading, and we should not -- stop speaking about alibi.
18 Whether somebody is present at one site or another site or another site,
19 that would not make it an alibi. It would make it part of our defence and
20 has nothing to do that we will lead that evidence as the Prosecution leads
21 its case, we are answering the case and we will do so in our defence.
22 JUDGE AGIUS: All right. Don't expect us to comment on that at
23 this point for sure.
24 Do you wish to address the Trial Chamber --
25 MR. OSTOJIC: That's why I'm standing Mr. President?
1 JUDGE AGIUS: -- or to remain silent?
2 MR. OSTOJIC: I just want because when they mention our client,
3 you know, and I do object to his categorisation of what alibi is and the
4 manner in which he suggests that the Defence should put on their case. I
5 think we can sit here and argue about it. I'm sure in due course we will
6 have the opportunity before Your Honours. But he shouldn't shape the
7 evidence for you now. His own witnesses are inconsistent as to time, and
8 where any of the defendants or accused have been. So let him address
9 that, why he has those internal inconsistencies. But for him to
10 constantly come up and to try and shape that evidence, I think it's
11 inappropriate. And I will continue to object and stand up and at least
12 pursue my record on that issue. If the Court's concluded that he has met
13 his burden of proof on any of those issues, then the Court should advise
14 us of that and we then can proceed with the Defence case. But I don't
15 think it's there yet.
16 JUDGE AGIUS: Thank you, Mr. Ostojic.
17 Yes, Mr. McCloskey.
18 MR. McCLOSKEY: We appreciate counsel standing up for their client
19 but it's my position, and perhaps we have to make a filing on it, but if
20 during their Defence they argue that Colonel Beara was not at the Standard
21 factory at the 14 or 15 July, that's an alibi that he's somewhere else.
22 Same thing with Drago Nikolic, is he not at the Orahovac school on the
23 night of the 13th, the day of the 14th, not at the execution site but
24 somewhere else. If that is part of the defence, we need to hear it now
25 under these rules. Perhaps not the rules which we grew up and we
1 practiced in most of our lives, but in these Rules in this court, they
2 have to tell us. And I will file a motion to that respect, so we have
3 differing views on what an alibi is, and I respect that, but I think
4 perhaps we need your guidance from our motions to -- so we can come
5 together on that agreement and then I'm sure Mr. Bourgon and I and the
6 rest of the Defence will agree with your decision.
7 JUDGE AGIUS: Yes, Mr. Bourgon.
8 MR. BOURGON: Mr. President, [Microphone not activated].
9 The client we represent here is not being accused for being
10 present at such and such a place at such and such a date. He is being
11 accused because the Prosecution believe that he is come kind of a
12 participant in the joint criminal enterprise. We are -- our case we will
13 address -- as the evidence is being led by the Prosecution, we will
14 address every single step of our Defence as the evidence is being led.
15 Thank you, Mr. President.
16 JUDGE AGIUS: We can close on that. Don't expect any one of us to
17 say one single -- one single word more on this than we have said.
18 Yes, Mr. McCloskey.
19 MR. McCLOSKEY: Mr. President, we have spent a lot of time trying
20 to be as specific as we can in this indictment and what we have mentioned
21 at Orahovac is very specific. We will put this in a motion so that you
22 can rule on it, but if under their theory of an alibi it's just joint
23 criminal enterprise, then there is no alibi. And we have put all the
24 specificity for Orahovac and the other sites for nothing. But probably
25 enough said, we will get in a motion and see from there.
1 JUDGE AGIUS: I thank you. Is there any -- are there any further
2 submissions on this or on other matters?
3 Mr. Bourgon.
4 MR. BOURGON: Thank you, Mr. President. An unrelated matter. My
5 colleague suggested later on that the next witness could not be Ms. Frease
6 after 104. I would like to know who the next witness is after 104.
7 JUDGE AGIUS: That is news to me. You heard me address
8 Ms. Frease. My understanding was we finish with 104 and then we continue
9 with Ms. Frease. That's what I -- that's how I understood it. I don't
10 know if any of my colleagues understood it differently.
11 Mr. McCloskey.
12 MR. McCLOSKEY: We are of course always discussing things and as
13 items change or may change, I -- as you might add -- I'm going to call
14 Mr. Vanderpuye after this closes and see if -- if there is any more
15 material that has been found. Unfortunately sometimes when we find that
16 there has been a gap in our -- in our review, that gap sometimes opens up
17 into other things, and this is a recent gap, as you know, and I need to go
18 look and see if there is anything else and, of course, if there is, we
19 need it get that to the Defence and -- and if we need to put off Ms.
20 Frease, longer because of that, there is a lot of ifs in there, but
21 that's -- I always am thinking unfortunately in the negative. I'm -- I'm
22 worried that there's more out there and -- but we're really getting on it
23 and it will get resolved quickly.
24 JUDGE AGIUS: All right. Perhaps you will be in a position to
25 inform the Trial Chamber better tomorrow. The thing is, our concern is
1 that if we start with a different witness after 104, it's our interest to
2 make sure that the Defence teams are prepared. In other words, are given
3 sufficient, timely notice for that.
4 MR. McCLOSKEY: The order remains the same, and everyone's been on
5 notice of that order, and -- and they are all here and we have a whole
6 crew that's here.
7 JUDGE AGIUS: My understanding is today would have been taken
8 entirely by Ms. Frease, a good part of tomorrow, then 104 would have come
9 and finished on Friday, and that would have been it and we would be
10 talking of next week.
11 MR. McCLOSKEY: No, that's correct.
12 JUDGE AGIUS: As it is, you're suggesting that tomorrow if we
13 finish with this witness by I don't know, 5.30, then you have another
14 witness starting? What I want to make sure is that the Defence are
15 prepared, because we'll have the same problems as we encountered today.
16 MR. McCLOSKEY: Yes, of course, Your Honour, but I -- and I know
17 and as we appreciate, if there's four documents back there, the Defence
18 may not want to start with -- with Frease, and we understand that and --
19 and we take responsibility for that. But that's -- again, let's -- that's
20 a hypothetical, let's see where we are.
21 [Trial Chamber confers]
22 JUDGE AGIUS: Let's hear what Mr. Bourgon wishes to add.
23 MR. BOURGON: Mr. President, we mentioned earlier we are ready to
24 proceed with Ms. Frease tomorrow. The issue is we have one of my
25 colleagues has indicated that she will not have any questions for 104,
1 there is a good chance that we will have another witness after 104
2 tomorrow. We would just like to know who it is so we can be ready.
3 Whether it is Ms. Frease or the next one, we would like to be told at
4 least one day in advance who we have to prepare for tomorrow. Thank you,
5 Mr. President.
6 JUDGE AGIUS: Thank you. I think you have more time than you
7 would have otherwise had to discuss this amongst yourselves and come to a
8 conclusion, because we will have no further business to transact today,
9 things being where they are.
10 [Trial Chamber confers]
11 JUDGE AGIUS: Except for one last issue. Yesterday you stood up
12 and promised us a response to the Prosecution motion to convert next --
13 one of the next witnesses to a 92 ter witness, Mr. Bourgon. And I see
14 that Mr. Haynes is going to address that.
15 MR. HAYNES: Yes. In relation to that witness who has previously
16 testified in the Blagojevic case, I don't think any of us have any
17 particular difficulty with his evidence in chief being adduced in the
18 format of the transcript of his testimony. But we did think it was an
19 appropriate occasion to, as it were, draw the line in the sand. You may
20 or may not have seen that during the course of proceedings today there has
21 been a further motion suggesting the conversion, I think, of six witnesses
22 from viva voce to 92 ter, and -- 12, sorry. 12. And the form of their
23 evidence in chief varies greatly. And I think I speak for everybody when
24 I say we would begin to, as it were, put down the marker and draw the line
25 in the sand. Those witnesses, where the evidence in chief, it is
1 proposed, will be in the form of an interview with investigators of the
2 Office of the Prosecutor, and if the matter has to be addressed in more
3 detail in writing or indeed orally, then it will be. And I'm getting
4 ahead of everybody, really.
5 In relation to that motion you likely to find that our response in
6 relation to those who have been given evidence before, and have been
7 cross-examined before, is that's fine. But in relation to people who have
8 been through interviews which at varying times their status has changed
9 and there have been breaks that have been referred to, you are likely to
10 find that our stance will be that we would rather have their -- their
11 evidence in chief received in the usual way. Not the least because we
12 don't believe it will result in any saving of time. So the response in
13 relation to the motion from yesterday, I think, is we have no difficulty
14 with that. That witness can come 92 ter and the prior testimony can go in
15 as evidence in chief in relation to the block booking, as it were, that's
16 upcoming, you are likely to find a mixed response.
17 [Trial Chamber confers]
18 JUDGE AGIUS: Yes, thank you.
19 Mr. McCloskey, did you wish to address this matter? I think it
20 has come --
21 MR. McCLOSKEY: I can speak with Mr. Haynes about that to find out
22 what his concerns are, given the latitude that is been given on
23 cross-examination, I don't understand the foundation of the objection. We
24 are of course willing to put witnesses on fully, I think the Court gets a
25 better picture, but I think 92 ter has been working well, we have been
1 able to save time, I don't see any prejudice with the right of -- the
2 cross-examination that's being allowed. But given -- if there is a reason
3 for any one or two particular witnesses, we might be able to -- or we can
4 designate Mr. Ostojic to do the -- he can lead the witness as a
5 cross-examination. I mean, I don't understand the foundation of that.
6 But we'll talk with counsel about it and perhaps we can work something
8 JUDGE AGIUS: Okay. At this stage we don't wish to comment on
9 it. We leave it for the time being in your hands to discuss possibly and
10 come to an agreement failing which of course we will need to intervene and
11 decide. In the meantime, we are handing down an oral decision in the case
12 of Witness number 154, pursuant to a Prosecution motion filed yesterday to
13 convert this witness to a Rule 92 ter witness.
14 Having heard the Prosecution submissions and those of the Defence,
15 Prosecution motion is granted. And I hope Mr. McCloskey, that as
16 indicated you will now proceed to disclose the 92 ter statement or
17 statements to the Defence in a timely fashion so as to avoid unnecessary
18 problems. Thank you.
19 So we stand adjourned until tomorrow at 2.15. We will continue
20 with the testimony of PW-104 and then we will see where we get after
21 that. All right? Thank you.
22 --- Whereupon the hearing adjourned at 5.53 p.m.,
23 to be reconvened on Thursday, the 1st day of March,
24 2007, at 2.15 p.m.