Tribunal Criminal Tribunal for the Former Yugoslavia

Page 442

1 Thursday, 8 February 2001

2 [Pre-Trial Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.00 p.m.

6 JUDGE MAY: Let the Registrar call the case.

7 THE REGISTRAR: Good afternoon, Your Honours. Case number

8 IT-95-8-PT. The Prosecutor versus Dusko Sikirica, Dragan Kolundzija, and

9 Damir Dosen.

10 JUDGE MAY: The appearances, please.

11 MR. RYNEVELD: If it please the Court, Dirk Ryneveld along with

12 Daryl Mundis and Julia Baly for the Prosecution. We're prepared to

13 proceed today.

14 MR. GREAVES: I'm Michael Greaves. I appear on behalf of the

15 defendant Dusko Sikirica. I have seated with me, as Your Honour will

16 recall, Ava Mrkavic [phoen] who is my interpreter who I hope still has

17 Your Honour's leave to be here.

18 JUDGE MAY: Yes.

19 MR. PETROVIC: [Interpretation] Your Honour. I'm Vladimir

20 Petrovic for Damir Dosen.

21 MR. VUCICEVIC: Your Honours, Dusan Vucicevic, from Chicago, on

22 behalf of Dragan Kolundzija.

23 Your Honours, it is a privilege to introduce to you

24 Sir Ivan Lawrence of London who is co-counsel in Kolundzija case.

25 JUDGE MAY: Very well. This matter comes before the Court in this

Page 443

1 way: There are two Judges only sitting today. That is because Judge

2 Bennouna will not be sitting on this trial since he's leaving the Tribunal

3 on the 28th of February. His place will be taken by Judge Fassi Fihri who

4 will be a member of the Tribunal from March onwards and therefore will sit

5 to complete the Trial Chamber in this case.

6 The position is this: That we propose to treat this as a

7 Pre-Trial Conference, although there are only two of us sitting. If there

8 are any matters which require the determination by a complete Trial

9 Chamber, they will, of course, have to be postponed for consideration, but

10 I anticipate that we'll be able to deal with virtually everything without

11 that.

12 The first matter is this: That we have fixed a timetable for this

13 trial, starting on the 19th of March. The timetable is available, and if

14 it could be handed to the parties. You will see that the proposal is that

15 we sit from the 19th of March until the 12th of April. I anticipate we

16 won't, in fact, be sitting on the 12th of April because there is a Plenary

17 which is likely to take place, although it's not been fixed on that day.

18 We shall not be sitting on the 30th of March, which is a Friday, and

19 you'll see that we resume on the 23rd of April, after Easter, and that we

20 sit through until the beginning of June.

21 Now, the proposal is that there is a break in the trial for two

22 weeks at the beginning of June, the reason being this; that that will

23 allow the Prosecution some nine weeks or so which the Trial Chamber

24 determined is sufficient for them to produce their case, and we shall

25 expect the Prosecution to have finished by that date, the 1st of June.

Page 444

1 There will then be a break of two weeks to allow the Defence to

2 prepare. You will then see that the Trial Chamber is available for the

3 next seven or eight weeks, taking us to the beginning of August. We shall

4 be taking a recess of three weeks in August. The precise date will

5 depend, of course, on the progress in this case, but we expect to finish

6 the trial by the beginning of August, at least to finish the hearings in

7 the case. We can return to that in due course.

8 You will see that we've set out the normal sitting hours. There

9 is a break in the middle of the morning, half an hour. Friday afternoons

10 normally not sitting, but of course it may be that we will be required to

11 sit. There is every second Wednesday when it may be necessary for us to

12 deal with other matters before the Trial Chamber. But that's the general

13 pattern. As for the hours, it may be that we will sit longer hours in the

14 afternoon, but it depends on the progress that we make in the case. Now,

15 unless anybody has any observations about that, that's the proposed

16 schedule.

17 I propose to turn really to the Prosecution to see how matters are

18 progressing. I think you had at one stage a list of 70 witnesses, but you

19 were going to consider how many of those could be called, drawing your

20 attention to the new Rule 92 bis and the provisions of it, which I'm sure

21 you have in mind.

22 MR. RYNEVELD: Absolutely, Your Honour. I'm very pleased to

23 report that we have been actively reviewing our witness list, and the way

24 it looks now, from the original 70, we're down to a potential 56

25 witnesses. That's quite a substantial reduction. But we are hopeful that

Page 445

1 we may be able to reduce the amount of viva voce witnesses down further,

2 in the event we're able to persuade our friends with respect to transcript

3 evidence and matters of that nature. We have six potential witnesses that

4 we have identified that could testify by way of transcript and another

5 eight that would be 94 bis type witnesses, so that we might actually, in

6 the event -- and of course, we're at the discussion stage of this and it

7 takes all three to agree to this before we can, of course, accomplish this

8 objective, but we're hopeful that reason will prevail and that we can

9 perhaps call about 42 viva voce witnesses, and that is our hope. However,

10 if worst comes to worst, if we can't come to agreement on anything - and

11 we are actively pursuing that; we've had meetings with Defence yesterday

12 and with one of the Defence counsel again this morning - there's a

13 potential 56 by last count, and that's paring it down as much as we

14 possibly can.

15 JUDGE MAY: If, of course, there isn't agreement, the Trial

16 Chamber has power to admit transcripts in any event, and so you can, if

17 you think it's proper, apply to us to do so. We would obviously have to

18 consider the arguments.

19 MR. RYNEVELD: Of course. And as I say, I'm still hopeful that we

20 might be able to find a compromised way which would satisfy my friends'

21 concerns and yet shorten the trial, and we're in active negotiation on

22 those issues.

23 JUDGE MAY: Yes. Well, obviously the Trial Chamber would

24 encourage agreement; if not, it will rule at an appropriate time before

25 the trial or during the trial. We have to say that obviously we will be

Page 446

1 keeping an eye on the witnesses and progress, and of course we may take a

2 view about the number of witnesses on particular issues that you're going

3 to call, and I'm sure you have in mind the need to keep the matter as

4 relevant and as tight as possible.

5 MR. RYNEVELD: Absolutely.

6 JUDGE MAY: I don't know, Mr. Ryneveld, if you've given any

7 thought to the way in which the evidence should be given. Our experience

8 in the last case which we did was that the Prosecution adopted a system of

9 producing summaries or abbreviated witness statements of what the

10 witnesses were going to say. Our experience here is that the statements

11 often are taken from witnesses a long time ago, they often deal with a

12 great deal of irrelevant evidence, and therefore it's helpful, first of

13 all for the Prosecution, to know what the witness is going to say,

14 although it means extra work of proofing the witness before he gives

15 evidence after he's arrived here or she's arrived here, but it's helpful

16 for the Prosecution, it's helpful clearly for the Defence to know the

17 issues which you're going to cover, and it's helpful for the Trial

18 Chamber. Now, I don't know whether you've given any consideration to

19 that, but we would encourage you to follow a similar course.

20 MR. RYNEVELD: We have indeed given consideration to it, and I do

21 have a -- my recollection is that those matters were then filed with the

22 Court and with Defence counsel - is that correct -

23 JUDGE MAY: Yes.

24 MR. RYNEVELD: The summaries of the witness statements and other

25 matters?

Page 447

1 JUDGE MAY: The summaries came in late. That was a source of

2 complaint. But the position, of course, is that witnesses fly in

3 sometimes very shortly before they give evidence, and therefore the taking

4 of statements is something which may take up time until almost the witness

5 gives evidence.

6 MR. RYNEVELD: That's correct.

7 JUDGE MAY: But it's a procedure which, if followed, can be

8 improved with experience --

9 MR. RYNEVELD: Yes. We'll certainly --

10 JUDGE MAY: -- and it's very useful.

11 MR. RYNEVELD: Thank you. We'll certainly take that into

12 consideration and see if we can accomplish that objective. That seems to

13 me like a very prudent course of conduct.

14 JUDGE ROBINSON: May I just endorse what the Presiding Judge has

15 just said as to that particular procedure, which we found to be very, very

16 useful in the Kordic case. You said "filed," Mr. Ryneveld, but I think

17 "filed" is too formal a word. It is not really a formal procedure that

18 requires filing; it is rather an informal procedure which facilitates the

19 work of the Court. One of its virtues is that it will allow Defence

20 counsel before to identify to you the areas in respect of which you may

21 lead evidence, and I think that's quite useful.

22 JUDGE MAY: I would endorse that. And filing, particularly here,

23 has a particular Tribunal meaning, i.e. filed with the Registry. That is

24 not what happened. The documents were never filed with the Registry; they

25 were simply handed in to the Court, to the Trial Chamber, often just

Page 448

1 before the witness gave evidence, and also to Defence counsel.

2 MR. RYNEVELD: Yes. I understand. They won't be formally marked

3 as exhibits. They're made available for reference.

4 JUDGE MAY: They're certainly not exhibits. They're not in lieu

5 of witness statements, but they are for the assistance of all in the

6 trial.

7 MR. RYNEVELD: Thank you.

8 JUDGE MAY: Unless there are any other matters about witnesses.

9 [Trial Chamber confers]

10 JUDGE MAY: While we're on the subject of witnesses, it might be

11 helpful if we have some notion of how many witnesses the Defence are

12 likely to call in terms of length. We can't oblige you to, we don't

13 expect you to answer, but if you could give us some idea, it might be

14 helpful; if you can't, say so.

15 MR. GREAVES: In the absence of my leading counsel, I'm not in a

16 position to give a very helpful answer of any kind. He's not here because

17 he's been in ill health over Christmas and up to now.

18 JUDGE MAY: Can you give us a rough --

19 MR. GREAVES: There's been an alibi notice filed, and plainly you

20 can take those as being read. There will be some more, but I -- at this

21 stage we haven't finalised our views.

22 JUDGE MAY: It's not been a very extensive number.

23 MR. GREAVES: I don't like extensive numbers of Defence witnesses

24 if I can avoid it.

25 JUDGE MAY: Mr. Petrovic.

Page 449

1 MR. PETROVIC: [Interpretation] Your Honours, as things stand now

2 in our case, I believe that we would have something between 34 and 40 --

3 35 and 40 witnesses, but we hope with your assistance to bring them down

4 to a smaller number. The majority of witnesses that Mr. Dosen's Defence

5 intends to call are witnesses who will not differ much from the witnesses

6 that will be called by the Prosecution in terms of the nature of the

7 testimony, that is, most of them were in the Keraterm investigating

8 centre, the largest number of them.

9 As to for some witnesses which will testify about circumstances

10 which are not directly related to this investigating centre, will be new,

11 and in that regard, we shall avail ourselves of the possibilities offered

12 us by the amended Rules.

13 JUDGE MAY: Yes. Any character witnesses -- I speak aloud, but if

14 you want to call a character witness, of course, you're entitled to, or

15 witnesses; but it may be that having called one, the other witnesses can

16 be given by way of affidavit. Likewise, any evidence about the peripheral

17 issues as opposed to the central issues in the case, it may well be can

18 conveniently be given by affidavit.

19 MR. PETROVIC: [Interpretation] Your Honour, we do bear this in

20 mind, and we are preparing our defence along those lines.

21 JUDGE MAY: Thank you. Mr. Vucicevic?

22 MR. VUCICEVIC: Your Honours, I'll be short on this point. We,

23 if it becomes necessary to present Defence case in chief in Kolundzija

24 case, we expect 30 to 35 witnesses. Since the most of exculpatory

25 evidence is going to come up in Prosecutor's case in chief, we reasonably

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Page 451

1 expect that it's going to be an acquittal at the end of the Prosecutor's

2 case. However, if not, then we will even scale that number down,

3 depending on the amount of exculpatory evidence that we get. Thank you.

4 JUDGE MAY: Thank you. The one point that I want --

5 THE INTERPRETER: Microphone to Judge May, please.

6 JUDGE MAY: One point that I would stress to the Defence is that

7 there are two weeks which are going to be allowed after the Prosecution

8 case which is scheduled to end in June. Those are the two weeks for the

9 preparation of your case, and we don't want an extensive adjournment between

10 Prosecution and Defence. So when you're preparing your case, if you have

11 in mind that you will have two weeks at the end of the Prosecution, and

12 that's all.

13 Mr. Greaves, if I could address you on one matter, just this: The

14 order of cross-examination. We're used to a particular order of

15 cross-examination, those of us who come from one jurisdiction, which is

16 the order of the indictment. I don't really see why it shouldn't be

17 followed in this case.

18 MR. GREAVES: I have no observations to make, save and except

19 that, if I can draw on my experience of another case before the Tribunal,

20 in the Celebici case, it was done by agreement between counsel for the

21 Defence, and I wonder if Your Honours would have any objection if there is

22 an agreement made as to a particular witness or so forth, whether you

23 would object to that course being followed on particular occasions.

24 JUDGE MAY: Well, provided normally it's done in indictment order,

25 that's to be the usual rule. If there are reasons why a particular

Page 452

1 counsel wants to go first, speaking for myself, I don't see any objection

2 to that.

3 MR. GREAVES: Thank you very much for that. While I'm on my feet,

4 can I make an observation about the summaries, please?

5 JUDGE MAY: Yes.

6 MR. GREAVES: Not to criticise, I hasten to add. In the Jelesic

7 case, summaries were provided but on occasions they were put into my hands

8 as the witness was standing outside the door, ready to come in. That

9 really is -- doesn't give a proper opportunity for one to look at the

10 summary and see whether it's a fair summary and make any representations

11 about it. There were occasions when I felt that I might have made

12 observations about the fairness of the summary being an accurate

13 reflection of what was anticipated to come. So if we can avoid the

14 situation where they are simply put into our hands two seconds before the

15 evidence is actually given, we would be very grateful.

16 JUDGE MAY: I have no doubt that's been heard and is obviously the

17 case. I think as far as observations as to fairness is concerned, again,

18 speaking for myself, I don't think you need trouble about that too much.

19 If it doesn't represent what the witness is going to say, well, it doesn't

20 matter what it says, and we're not likely to be influenced by something in

21 a summary.

22 MR. GREAVES: I was sure that that was the case. I wasn't

23 necessarily quite as convinced as to exactly what use the summaries would

24 be put in my other trial.

25 JUDGE MAY: Mr. Petrovic wanted to say something.

Page 453

1 MR. PETROVIC: [Interpretation] Your Honour, I apologise, but with

2 your leave, I'd like to go back to something that was tackled at the very

3 beginning of our Pre-Trial Conference. I think it is important to

4 mention, and I'm referring to the timetable.

5 The situation in Mr. Damir Dosen's Defence team is such that when

6 it comes to the presentation of the Defence case, I see here that it is

7 envisaged to work from mid-June until the beginning of August. And the

8 majority of witnesses whom we had contacted and who are ready to testify,

9 the majority of these witnesses will want, will want to see us on the

10 ground in Prijedor, both me and my co-counsel's presence. So will it be

11 possible to make a break between individual Defence cases of a week, or I

12 don't know how long? Simply, the organisation of work that we are

13 pursuing is such that it will be very difficult for us to be in the

14 courtroom and follow the case all the time and, at the same time, provide

15 the witnesses that we have announced. So perhaps it is premature to

16 discuss it, but I simply wish to draw attention to that fact.

17 And I hope I'm not abusing your patience, but I should also like

18 to say that Mr. Dosen's Defence believes that the trial, which will last

19 for five or more weeks at a stretch, will mean -- because the Defence

20 teams are all fairly small, it will mean that everything we hear here in

21 the courtroom, we shall have to communicate -- we shall not be able to

22 communicate or verify with our investigators on the ground. That is, we

23 shall not be able to verify whatever we hear during the Prosecution case

24 with our investigators on the ground; in other words, we're either here or

25 there.

Page 454

1 And the experience from former cases tells us that on quite a

2 number of occasions, we heard -- we could hear here things which were not

3 even announced, were not even hinted at in statements, that new moments

4 arise, and in such cases we're simply unable to respond adequately to such

5 a situation, to such novel issues which all of a sudden come up in the

6 course of trial because we are unable to check these things on the ground.

7 So to cut it short, I wonder if it will be possible to make some

8 shorter breaks here during the trial so as to enable us to communicate

9 with our investigators and then visit the scene, that is, visit Prijedor

10 during those short breaks during the trial itself. Thank you.

11 [Trial Chamber confers]

12 JUDGE ROBINSON: As to the question that you raised, we would not

13 be in a position, no, to say that there would be a break between Defence

14 cases. What I would say is that if a particular matter comes up which you

15 think requires investigation and you need time for it, you can bring it to

16 the attention of the Chamber and we'll deal with it at that particular

17 time.

18 But you are aware, of course, that time is very, very short, and

19 it's important that we proceed as expeditiously as possible. So

20 consistent with that, we wouldn't be able to, at this stage, say that

21 there would be a break between Defence cases. But raise issues as they

22 come up and we'll deal with them fairly.

23 MR. PETROVIC: [Interpretation] Thank you, Your Honours.

24 JUDGE MAY: Yes, Mr. Vucicevic.

25 MR. VUCICEVIC: I should like to make a short note on the matter

Page 455

1 that Mr. Greaves has commented. I believe there might have been a case

2 before in having a different team of the Prosecutor, Prosecutors, but my

3 experience with Mr. Ryneveld and his team has been nothing but exemplary,

4 and I stand up here before you to commend him for his professionalism in

5 high degree of cooperation and, you know, disclosure of the matters that

6 are being opposed even before in the past.

7 And I believe if we continue with this spirit, that my learned

8 friend will never use such a time which would indeed be superfluous work

9 for him if he were to present to us on the moment when the witness is

10 going to take the stand, and I believe that they will do their utmost to

11 provide it to us a couple of days in advance. Thank you.

12 JUDGE ROBINSON: I'm sure Mr. Ryneveld appreciates that bouquet.

13 JUDGE MAY: You wanted to say something, Mr. Ryneveld.

14 MR. RYNEVELD: Not in response to that.

15 JUDGE MAY: No need.

16 MR. RYNEVELD: That's best left alone, thank you.

17 What I would like to do, however, is to clarify something that my

18 learned friend Mr. Greaves asked about the summary, the fairness of the

19 summary, just so that I'm clear about the purpose of the summary and the

20 extent of the summary and the use to be made of the summary.

21 My understanding is that the purpose of the summary is to take,

22 shall we say, what may be a 12-page statement followed by an 18-page

23 statement which may talk about a wide range of things and distil in the

24 summary that portion of those collective statements that we intend to lead

25 from the witness before this court, in other words, in chief. And as long

Page 456

1 as the summary is a fair representation of what we anticipate the witness

2 will actually say in court, that's what I think is fair, as opposed to it

3 may not cover that wide range. In other words, if the fairness talks

4 about the wide-ranging subject matter contained in those statements,

5 surely that's for Defence counsel to be able to cross-examine upon if it's

6 relevant to them.

7 JUDGE MAY: You have it precisely.

8 MR. RYNEVELD: Thank you.

9 JUDGE MAY: The purpose is to provide a distillation, as you

10 rightly put it, of what the witness is going to say in this case.

11 MR. RYNEVELD: Yes.

12 JUDGE MAY: If there are matters which appear in other statements

13 about which Defence counsel wish to cross-examine, of course it's open to

14 them to do so, provided it's relevant. And the fact that something is not

15 mentioned in the summary does not prevent anyone asking questions about

16 it. The purpose is to concentrate the minds of all, including the witness,

17 on what is relevant for this particular trial, if that answers the

18 question.

19 MR. RYNEVELD: It certainly does. I just want to make sure that I

20 understood what the word "fair" meant because I didn't want to be doing

21 one thing when they expected something else. Thank you.

22 JUDGE MAY: You won't be criticised for leaving out an irrelevant

23 matter.

24 MR. RYNEVELD: Thank you very much, Your Honour.

25 MR. LAWRENCE: Your Honour, might I raise something?

Page 457

1 THE INTERPRETER: Microphone to the counsel, please.

2 MR. LAWRENCE: What a great pleasure it is to be in Your Honour's

3 court and to be here. But I'm on a very steep learning curve - this is my

4 first day - and I expect that I shall be here quite often. But would the

5 Court consider it a great discourtesy if there are days when the court was

6 sitting when both counsel weren't here, either, I suppose, on behalf of my

7 client, but perhaps others as well?

8 I can see that there will be many days when we wouldn't be needed

9 because the witnesses wouldn't necessarily be relevant to anything that

10 affects our client, but if there was a day when our client's evidence

11 needed [sic] to be addressed, would it be considered a discourtesy in this

12 court if two counsel weren't here?

13 JUDGE MAY: Provided one is here, that's sufficient.

14 MR. LAWRENCE: Thank you.

15 JUDGE MAY: Mr. Vucicevic, there was a matter which you raised

16 earlier. You were going to pursue something with the United Nations; you

17 were asking for some other material, as I recall.

18 MR. VUCICEVIC: Yes, Your Honour. Upon your advice, I submitted a

19 request to the Secretary-General of the United Nations, and I have gotten

20 a reply, basically that they have received my request and they've taken it

21 under consideration. That I have done immediately after leaving -- after

22 arriving to Chicago from my offices, and I haven't gotten a reply.

23 I will address that matter to them again, and then I will, within

24 maybe ten days, advise you so what their policy is.

25 [Trial Chamber confers]

Page 458

1 JUDGE MAY: Yes. I'm reminded that we haven't yet covered the

2 exhibits. Have we got a full exhibit list from the Prosecution?

3 MR. RYNEVELD: I stand to be corrected, but my understanding is we

4 have provided a full exhibit list. We're not anticipating at this point,

5 at least, any additional exhibits. There could, of course -- in the

6 course of the trial, sometimes something comes up and we would make an

7 application, but I believe everything that we intend to file by way of

8 exhibits has been filed.

9 JUDGE MAY: And disclosed, have been filed. Have the exhibits

10 been disclosed? You made this very substantial disclosure.

11 MR. RYNEVELD: We certainly have. And that's my understanding as

12 well. I'm just checking with our case manager, but my understanding is we

13 have disclosed the exhibits. There are some videotapes, I think, that

14 might still be awaiting copying, but -- excuse me, let me just check with

15 my team.

16 [Prosecution counsel confer]

17 [Trial Chamber and legal officer confer]

18 JUDGE MAY: I'm just reminded myself that you've provided copies

19 of a video of I think a German television programme - I may be wrong - "A

20 Time to Mourn."

21 MR. RYNEVELD: Yes, we did, and I think we also brought on an

22 application for a transcript of that video to be filed, because --

23 JUDGE MAY: Is it in German?

24 MR. RYNEVELD: It's in German. The programme is in German. So we

25 ask for the English -- the transcript of the English translation of the

Page 459

1 programme to be filed, and I do believe that's been entered.

2 To return to the question you asked me earlier, we have filed

3 about five binders' worth of material. There are going to be one or two

4 more documents that we will be bringing on an application between now and

5 trial to move to -- seek the Court's permission to have it admitted into

6 evidence, but we're talking less than a handful of documents that I can

7 imagine. I hope that answers the question posed by the Court.

8 JUDGE MAY: Thank you.

9 Mr. Greaves, have you seen "A Time to Mourn"?

10 MR. GREAVES: I haven't yet, no.

11 JUDGE MAY: But you've been given a copy?

12 MR. GREAVES: I think probably my learned leader has got the copy.

13 I haven't yet had a chance to look at it.

14 JUDGE MAY: If it has got the German -- provided we have the

15 German transcript, it may be sensible to watch it before the trial begins.

16 MR. GREAVES: Yes. Can I just mention one other thing? My

17 learned friend mentioned his having cut down the list of witnesses they're

18 going to call. Could he as soon as possible let us know who those are,

19 because, of course, if one is sitting there, reading a witness who is now

20 no longer on the list, one is wasting one's time and public money.

21 JUDGE MAY: That should be done as promptly as possible, of

22 course.

23 MR. RYNEVELD: Naturally.

24 JUDGE MAY: The Defence should be kept in touch with any changes.

25 [Trial Chamber confers]

Page 460

1 JUDGE MAY: Unless there's anything that anybody wants to raise in

2 public session, we'll go into private session to deal with any matters

3 concerning the conditions of detention.

4 Very well. As far as the public are concerned, the hearing of

5 this trial will start 19th of March, 10 a.m.

6 We'll go into private session.

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18 --- Whereupon the Pre-Trial Conference

19 adjourned at 2.44 p.m.

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