Tribunal Criminal Tribunal for the Former Yugoslavia

Page 22384

1 Tuesday, 18 September 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.13 p.m.

5 JUDGE ANTONETTI: [Interpretation] Registrar, would you call the

6 case, please.

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

8 IT-04-74-T, the Prosecutor versus Prlic et al.

9 JUDGE ANTONETTI: [Interpretation] Thank you very much, registrar.

10 Today is Tuesday. I'd like to say hello to everyone.

11 Mr. Stringer, who is hidden a bit behind the pole here, the lawyers, good

12 afternoon, as well as all of the other individuals who are here in the

13 courtroom today.

14 Before we go into closed session we need to have an IC number.

15 THE REGISTRAR: Thank you, Your Honour. One of the parties have

16 submitted list of objections to document tendered by the OTP through

17 Witness E. The list submitted by 6D shall be given Exhibit number IC 664.

18 JUDGE ANTONETTI: [Interpretation] Thank you, registrar. Before we

19 go into closed session there is a technical comment I'd like to make

20 regarding the presentation of the binders, which include the various

21 exhibits which are numbered. For example, there were several tens of

22 documents for the witness. Couldn't we have different colours used for

23 the tabs depending on whether or not the document has already been

24 tendered or not, and the ones that have been tendered would be in one

25 colour and the those that have not been tendered would be in a different

Page 22385

1 colour. The statement would apply for the Defence and this would make it

2 easier for the Judges when they examine for the first time the exhibits

3 which ones have to be examined with particular attention because they will

4 then have to be tendered into the case. And since we have a very large

5 number of exhibits, we don't know at any given point in time which ones

6 have already been tendered and which ones need to be tendered. Of course

7 we can look them up, but it's very difficult to do that as we watch you

8 and listen to you and follow the exhibits that are being used for the

9 direct or examination or the examination-in-chief or the -- or the

10 cross-examination.

11 This would help us understand which ones have already been

12 tendered and which ones have not been.

13 We're now going to ask the witness to come in. Could the

14 registrar please lower the blinds and we shall now go into closed session

15 is, please.

16 [Closed session]

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 22386











11 Pages 22386-22470 redacted. Closed session















Page 22471

1 (redacted)

2 (redacted)

3 (redacted)

4 [Open session]

5 THE REGISTRAR: [Microphone not activated]

6 JUDGE ANTONETTI: [Interpretation] Madam -- Mr. Ibrisimovic. Or

7 perhaps Mr. Murphy. Who is going to speak?

8 MR. MURPHY: Thank you, Mr. President. I have actually two

9 matters which are related. The first one is -- is really quite short and

10 it refers to the Defence response to the motion to admit documents, some

11 35 documents, primarily relating to Dretelj and Gabela. I think that that

12 joint response has been filed this afternoon, or certainly was scheduled

13 to be filed this afternoon. My only request is, as far as the Stojic

14 Defence is concerned, Your Honour, we do join in the joint response.

15 However, it was our intention to file a very short annex dealing with one

16 or two specific objections to documents because of the time that we've

17 spent getting ready with Mr. Khan, we have fallen a little behind with

18 that and I would like to ask for 24 hours to submit that annex if there's

19 no objection. It will be with the Court tomorrow. I don't think any

20 prejudice will be caused if we were granted that extension.

21 Your Honour, thank you very much.

22 JUDGE ANTONETTI: [Interpretation] Well, the Chamber which has

23 discussed will grant this request.

24 MR. MURPHY: Your Honour, thank you very much. Your Honour, the

25 second matter is more general and I think is one of concern to all the

Page 22472

1 Defence teams and it relates to the motion that was filed by the Defence

2 on the 4th of September of this year to dismiss seven Prosecution document

3 motions on the ground that in our view they amount to an abuse of process.

4 I don't think a response has been filed as yet to that motion. If there's

5 any application for an extension obviously we will not oppose that as long

6 as it's reasonable. But one particular matter, Your Honour, is of some

7 importance and urgency.

8 We have asked as one of the grounds of relief that pending the

9 Trial Chamber's decision on that motion, which of course will be a very

10 important decision, that the -- that the schedule for Defence responses to

11 any outstanding motions should be suspended.

12 Now, clearly the -- the suggestion that we make in the motion is

13 quite a serious one. We draw attention to the fact that the Prosecution

14 apparently intends to introduce certainly 10 per cent and possibly as much

15 as 20 per cent, depending on events, of the entire documentary corpus in

16 this case by way of these written motions without showing them to a

17 witness at all. Now, I know that there will be a disputed area here, and

18 before there is any response I acknowledge that there will obviously be a

19 dispute about the reason for the -- these motions and the justification

20 for them. The Prosecution will contend that they are under time

21 constraints imposed by the Trial Chamber. We, of course, agree with that

22 to some extent, but it is our position that the Prosecution has

23 essentially brought this on itself by failing to adjust its case to the

24 very clear indications given by the Trial Chamber as long ago as July of

25 2006.

Page 22473

1 Now, obviously that's a matter which the Trial Chamber will have

2 to consider, but on any view, this is clearly a serious issue, and it's --

3 it's our submission, Your Honour, that at the present time it would be

4 economical from everybody's point of view in terms of time and from the

5 Trial Chamber's -- certainly from the Trial Chamber's point of view not to

6 be perhaps unnecessarily bombarded with further responses, and we suggest

7 that even if perhaps the Trial Chamber gives priority to deciding this

8 Defence motion, and does so on an expedited basis, it would make more

9 sense from everybody's point of view to suspend the present schedule of

10 responses pending the decision of the Trial Chamber on -- on this umbrella

11 motion.

12 And so I make that motion, Your Honour, and I make it at this time

13 because, of course, there are one or two deadlines come up which otherwise

14 would have to be observed, and so it may be that the Trial Chamber would

15 be able to deliberate on that and give an oral ruling in the next day or

16 two, but that would be my application.

17 MR. KOVACIC: [Interpretation] Your Honour, if I may just add. Of

18 course I join in this proposal by my colleague Mr. Murphy. The Defence

19 teams have consulted one other on this point. But I would wish to add a

20 Defence request just to be sure if Your Honours do not have time to hand

21 down the decision, or if your decision is negative to suspend the

22 deadlines for the submission of a response, I wish to remind Your Honours

23 that on the 10th and 11th of September the Prosecution submitted two

24 further motions of the same kind. One refers to a motion to introduce 35

25 witness statements concerning Heliodrom and general issues, and the second

Page 22474

1 to introduce documents from the presidential office, and this refers to 28

2 documents. It's a large volume of material, and according to the rules we

3 would have to respond on the 24th and 25th of September respectively.

4 Your Honours, with respect to this motion which has been submitted

5 in writing and that my colleague Mr. Murphy has spoken about, I wish to be

6 on the safe side for planning purposes. So regardless of Your Honours'

7 decision, I move that you allow us an extension of the deadline until the

8 last week in October right now orally, because, Your Honours, we are

9 simply swamped, and whatever Your Honours say we will simply be unable to

10 do this on time. I don't wish to complain and shed tears before this

11 Court. I don't wish to whine, but we are stretched to the limits. We are

12 all working overtime, every weekend. Many people from the Defence teams

13 have been at their desks and our staff are, although they are highly

14 motivated, are finding it very difficult, and therefore I beg Your Honours

15 for an extension of the deadline. Thank you.

16 MR. KARNAVAS: If I could make just one brief observation,

17 Mr. President, with respect to what Mr. Murphy had indicated earlier. I

18 just recently learned that in the Srebrenica case, the Popovic case, the

19 Trial Chamber there when this came to the admission of the UN report on

20 Srebrenica indicated that it would not accept the entire report but,

21 rather, it would only admit portions which the Prosecution had directly

22 shown to witnesses, thus allowing the Defence counsel the opportunity to

23 confront those sections.

24 The reason for that was because the Trial Chamber found or felt

25 that it would be overly burdensome to the Defence to figure out which

Page 22475

1 portions, if any, of the report not mentioned by the Prosecution the

2 Defence would have to argue and counter.

3 I've raised this issue before in the past, maybe not as eloquently

4 as the Trial Chamber pointed out in that particular decision, but I think

5 at some point the Trial Chamber must take into account that at the

6 conclusion of this trial we will need to go through all of these documents

7 and on any single line, footnote, page, paragraph, chapter, we're going to

8 need to respond to. The onus -- and it seems to me that somehow we've

9 lost sight of that. We're just dumping documents now into the system and

10 then sort of like, well, let's see if we can take one line or one

11 paragraph later on in order to draw some conclusion. I don't think this

12 is the way the system was built. It's certainly not the way that I

13 understand trial advocacy should be conducted.

14 I understand we have some rather -- we have rules that allow

15 rather generously for the evidence to come in. However, when we're

16 allowing all these documents to come in without any viva voce testimony,

17 without pointing to any particular direction as to what the Defence needs

18 to -- needs to attack or needs to address or needs to answer to, I think

19 it's becoming rather ominous, and I think that in keeping with the remarks

20 made by Mr. Murphy if you could perhaps look at what your brethren are

21 doing or have done in other Trial Chambers for some guidance. I

22 understand that one Trial Chamber need not accept what another Trial

23 Chamber's decision is, you know, but I think for purposes of guidance, I'm

24 merely pointing this out because I think it's at the end of the trial it's

25 going to be a monumental task for all of us.

Page 22476

1 Thank you.

2 JUDGE ANTONETTI: [Interpretation].

3 MR. SAHOTA: Mr. President.

4 JUDGE ANTONETTI: [Interpretation] Mr. Scott, would you like to

5 respond?

6 MR. SCOTT: Yes, Your Honour, I would like to, and at least

7 briefly. I don't think we can respond, and one of my points is going to

8 be I don't think it's appropriate to argument merits of this today. The

9 Prosecution has not even filed its response yet and I think that when it's

10 two minutes to 7.00, it's not an appropriate time to take up this issue in

11 full -- for full discussion.

12 Now, having said that, Your Honour, if I can take these matters in

13 reverse order. The matter that I had asked for some time to address to

14 the Chamber is a separate item. The Defence recently filed a joint

15 response to the Prosecution's 92 bis motion concerning Vares, and in that

16 regard, Your Honour, the Prosecution would ask leave to file a reply to

17 that response and would ask to have one week from today until the 25th of

18 September to file that document. If I could start with that, please.

19 Thank you.

20 JUDGE ANTONETTI: [Interpretation] Yes, fine.

21 MR. SCOTT: Thank you, Your Honour.

22 JUDGE ANTONETTI: [Interpretation] Well, as regards the one-week

23 deadline, is that okay? Well, on that issue, granted.

24 MR. SCOTT: Thank you, Mr. President, and Your Honours. Secondly

25 to respond very briefly because of the time to the points that have been

Page 22477

1 raised, in terms of the Prosecution's response to the Defence motion

2 that's been mentioned, that will be filed today. The due date is today

3 and it will be filed today and I had previously indicated -- alerted your

4 staff that it would be filed or to the Chamber's staff that it would be

5 filed today.

6 Having said that, again, I think it's -- we're getting ahead of

7 ourselves for counsel to get up and argue the merits of a motion with

8 responses has not even been filed by the Prosecution and I don't want to

9 be limited by the time constraints now to address that. It is an

10 important issue and if the Chamber wishes to take it up on the merits in

11 oral argument then I think a specific time should be set aside for that.

12 The Prosecution, Your Honours, just to indicate its concerns about

13 all these suspensions and we've said this before, and again, I'm not going

14 to belabour it except to say now that it's no secret that we're

15 approaching the end of the Prosecution case in the next some weeks,

16 sometime between now and the end of the year holiday, and, Your Honour, it

17 would simply be completely unprofessional, completely unethical and

18 completely imprudent for me as a professional prosecutor to rest the

19 Prosecution's case without knowing what evidence has been admitted.

20 So I just simply -- the more these type of things are put off and

21 I understand if the Chamber wants to put them off, I understand that, and

22 the Defence may make reasonable requests for some of the extensions. But

23 at the same time, I have to be consistent and be forthright with the

24 Chamber and we simply will not be in a position to rest our case until we

25 have rulings on these outstanding motions and that is one of the concerns

Page 22478

1 that I would address. But having said that, Your Honour, we would just

2 ask that if the Chamber wants to take this up further, that a specific

3 time be set so that we don't have one of these last 6.58 p.m. sort of

4 things where there isn't adequate time to address the matter.

5 Thank you very much.

6 JUDGE ANTONETTI: [Interpretation] Well, the Defence has raised two

7 issues, several of the counsels. First of all, the motion dated September

8 4th, the Defence has made a number of comments today, and since tomorrow

9 we're meeting early, we will discuss it and there will be a decision on

10 our part very rapidly. If I were alone the decision would be handed down

11 tomorrow, but since there are three of us, we have to agree on the

12 decision.

13 The second point is directly related to that first motion, which

14 is that the Defence wants an extension of the deadline regarding the

15 Prosecution's motion regarding the 35 statements and the 28 documents, the

16 so-called presidential documents.

17 As I stated, we're going to be meeting very early tomorrow

18 morning, and at 2.15 p.m., one second after we begin we will tell the

19 Defence what our response is regarding that deadline.

20 On my own behalf I could give you an answer immediately but it has

21 to be a collective response since there are three Judges sitting on this

22 Chamber.

23 It is now time to suspend the session. We shall meet tomorrow at

24 2.15.

25 --- Whereupon the hearing adjourned at 7.03 p.m.,

Page 22479

1 to be reconvened on Wednesday, the 19th day

2 of September, 2007, at 2.15 p.m.