Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12007

1 Thursday, 7 November 2002

2 [Pre-Defence Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.17 p.m.

6 JUDGE MUMBA: Please call the case.

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

8 IT-95-9-T, the Prosecutor versus Blagoje Simic, Miroslav Tadic, and Simo

9 Zaric. Thank you.

10 JUDGE MUMBA: Good afternoon. I notice that the parties are as

11 before. These proceedings are under Rule 73 ter to prepare the Defence

12 case.

13 I take it that the accused can hear the proceedings. Yes.

14 The filings for the Defence case have been examined by the Trial

15 Chamber, and we will start with expert witness opinions. The Trial

16 Chamber has a motion by the Prosecution on the expert opinion of Oliver

17 Nikolic and there's a joint response by the Defence, so the Trial Chamber

18 is going to give its ruling right away.

19 MR. PANTELIC: I do apologise, Your Honour. We don't have a

20 transcript on our laptop notebook machines, so could we have assistance of

21 the technical booth? Thank you.

22 JUDGE MUMBA: Yes. I noticed that --

23 MR. LAZAREVIC: Yes, Your Honours. Additionally, these earphones

24 are not working, so in the same time, maybe we could resolve all the

25 problems.

Page 12008

1 JUDGE MUMBA: Could we go through the rituals, please, and get all

2 the machines working.

3 Is the problem sorted out on the laptops?

4 MR. PANTELIC: No, Your Honour. We don't have transcripts yet.

5 It's nothing.

6 [Trial Chamber and registrar confer]

7 JUDGE MUMBA: Yes. The technical booth will send somebody in, but

8 we can proceed, because the recordings are on.

9 On the joint defence expert opinion of Oliver Nikolic, the Trial

10 Chamber has considered the Prosecution motion and the joint defence

11 response. The procedure contemplated by Rule 94 bis does not affect the

12 general power of the Trial Chamber to exclude evidence under Rule 89.

13 Evidence which is irrelevant must be excluded in the interests of a fair

14 and expeditious trial. At this stage of the trial, when the Prosecution

15 has concluded its case and when the Trial Chamber has decided the case to

16 be made by the accused persons under Rule 98 bis, it is even more

17 important that the Defence tailor their evidence, including expert

18 opinions, to the allegations that the accused have to meet on the charges

19 against them in the indictment.

20 Having considered the opinion of the joint defence expert Oliver

21 Nikolic filed pursuant to Rule 94 bis, the Trial Chamber finds that it has

22 no probative value. It is therefore irrelevant and shall be excluded.

23 The Prosecution motion is granted.

24 The Trial Chamber would like to move to the expert witness opinion

25 of Colonel Ostoja Barasin filed jointly by the Defence under Rule 94 bis

Page 12009

1 as a military expert. The Prosecution have indicated that they want to

2 cross-examine the witness. The Trial Chamber would like to hear the

3 Prosecution and the Defence on the status of this opinion, as the Trial

4 Chamber has some concerns.

5 Is there anything that the Prosecution would like to submit on the

6 status of this?

7 MR. DI FAZIO: If Your Honours please, may Mr. Weiner address you

8 on that, as we have divided the experts among ourselves, so to speak, and

9 he is the man handling this particular gentleman. Thank you.

10 JUDGE MUMBA: Yes. Mr. Weiner, please.

11 MR. WEINER: Your Honour, we have several questions concerning

12 that opinion. First and foremost, it is a highly, highly biased opinion.

13 It has no amount of objectivity at all. That's number one.

14 Further, although he claims to be a military expert, which we

15 would -- we'll probably concede he is in fact a military expert, however,

16 most of his military -- most of his military career has been involved in

17 public relations. He did spend two years as a commander or maybe two and

18 a half years as a commander. Almost his full career has been involved in

19 public relations. He makes all sorts of conclusions or offers all sorts

20 of opinions and conclusions on matters of history, on legal issues, and

21 very rarely covers the issue of Bosanski Samac. But even if we avoid all

22 of those and just look at the decision or the opinion itself or the report

23 or opinion by Colonel Barasin, it is totally biased. It has no level or

24 amount of objectivity, and as a result, we would request to cross-examine

25 him.

Page 12010

1 JUDGE MUMBA: The Trial Chamber would like to hear submissions by

2 the Defence whether they still maintain that this expert opinion should

3 remain on record and be part of the evidence in this case.

4 MR. PISAREVIC: [Interpretation] Good afternoon, Your Honours. The

5 Defence still is of the opinion that in the interest of justice, it is

6 essential for Mr. Ostoja Barasin to appear before the Chamber and give his

7 expert opinion that the remarks by the Prosecution stated here do not

8 stand. Namely, during the proceedings, it is important to show and to

9 explain the general situation in Bosnia and Herzegovina and, particularly,

10 the general military situation in the area of Posavina, the broader area

11 of Posavina, and the town of Bosanski Samac.

12 The expert testimony of Mr. Barasin also relates to comments and

13 opinions about the constitutional position of the Yugoslav People's Army,

14 about the formation of the army of Republika Srpska, the reasons, as well

15 as the functioning of the institution of the army itself, both the

16 Yugoslav People's Army and the functioning of the army of Republika

17 Srpska. Also, the expert testimony talks about the principle of

18 subordination, the manner of commanding and control in that institution,

19 i.e., in the Yugoslav People's Army and the army of Republika Srpska.

20 I particularly feel that in this case, it is very important to

21 explain the position of the 17th Tactical Group, the position of the

22 4th Detachment of the JNA, and also the position of my client, Mr. Simo

23 Zaric, who was the intelligence and security officer in the 4th

24 Detachment.

25 I think that without an expert of this kind, the Trial Chamber

Page 12011

1 will be deprived of the opportunity to hear and to find out about the

2 authority, the tasks, and other duties of my client, Mr. Zaric, and will

3 not be able to gain information or to get a picture of how the army

4 functioned and the extent of the authority of certain figures who happen

5 to be at certain positions within that army, at certain command

6 positions.

7 I think that this is essential in this case. I think that the

8 Prosecution, too, will also be in a position to, during cross-examination,

9 put certain questions and that this expert testimony will then go through

10 checks also by the Trial Chamber. Of course, we agree that the

11 Prosecution carries out an examination of the military expert witness, and

12 we believe that it is important to have a person from the military ranks

13 to appear as a witness. We believe that his position and his military

14 rank speak for themselves, indicating that he is an expert witness capable

15 of providing evidence in this case.

16 MR. PANTELIC: Your Honour, if I may --


18 MR. PANTELIC: -- just a few words on the same topic on behalf of

19 the Defence, please.

20 JUDGE MUMBA: Yes, you can go ahead.

21 MR. PANTELIC: I will be very, very brief. My learned friend

22 Mr. Pisarevic made a very, very detailed submission.

23 With regard to the position of the Prosecution that the expert

24 opinion of Colonel Barasin is very, very or highly, highly biased, that's

25 a personal approach, and we leave it to the -- our learned friends. Not

Page 12012

1 to mention that maybe we were of the same opinion of the Dr. Donia and

2 Dr. Ewa Tabeau opinions. But that's a matter for the Trial Chamber to

3 give the probative value and the final decision on these evidences.

4 And also a few words of the educational background and

5 professional background of Colonel Barasin. He finished highly ranked

6 military schools in former Yugoslavia. He finished, and he made his

7 professional education on several courses including NATO courses in

8 Germany. After the -- after the Dayton Peace Accord, he was the highly

9 ranked military counsellor for President Plavsic in Republika Srpska. He

10 is a very well recognised person within the circles of NATO forces and

11 Western military forces, and of course the Prosecution will be able to

12 cross-examine Colonel Barasin on all these topics. My intention was just

13 to shed a little bit more light on his professional background which was

14 mentioned by my learned friend, Mr. Weiner.

15 Thank you very much, Your Honour.

16 JUDGE MUMBA: Yes, Mr. Lukic. You also want to add to the

17 submissions? Yes.

18 MR. LUKIC: [Interpretation] Good afternoon, Your Honours. I will

19 not repeat what my colleagues have said, but I just wish to add that this

20 suggestion for Colonel Barasin, which is a joint suggestion by the Defence

21 and reflects the consent of the Defence, is based on the very fact. In

22 the expert testimony of Mr. Donia, there were a series of quite different

23 topics, historical ones, political ones, legal ones, and military ones,

24 and we believe that one person cannot adequately respond to such a

25 spectrum of topics, and our concept is such that experts should explain

Page 12013

1 expert subjects. And during cross-examination, Dr. Donia said he wasn't

2 completely competent to respond to them and that questions, since they

3 were allowed to be put, were obviously of interest for the Chamber, for

4 the Defence, and for the Prosecution, and they need to be clarified now.

5 So the concept of all of the teams was that experts who are experts in

6 certain fields should present their views on those topics, and all the

7 Defence team believe that these topics are extremely important for this

8 case.

9 JUDGE MUMBA: Very well. The Trial Chamber will consider the

10 submissions by the parties, and we will make a decision in due course,

11 perhaps before the end of today.

12 We shall move on to the rest of the programme. The Trial Chamber

13 has observed that there are three more expert witness opinions to be --

14 yet to be filed by the Defence, and these are all joint Defence

15 witnesses. The Trial Chamber would like to give a deadline for submitting

16 such reports, and that is the 26th of November this year. This is

17 important because we would like the Prosecution to have sufficient time to

18 deal with them so that should any issues arise during the presentation of

19 the Defence case with any of the witnesses, that may help shed some light

20 on the issues raised by any of the opinion of the expert witnesses, then

21 they will be ready to do so. And also, the Trial Chamber would like to

22 have sufficient time to look at them. The rest of the expert witness

23 opinions already filed will remain on record.

24 What the Trial Chamber would like to point out is the time limits

25 for the presentation of these expert opinions. Unlike what happened

Page 12014

1 during the Prosecution case, this time the Trial Chamber has had

2 sufficient time, because they have been filed, so that it would not be

3 necessary for the expert witnesses to present their opinions viva voce as

4 well. So we'll simply proceed by way of presentation of the opinion as it

5 is written, and the curriculum vitae, and then give time to the

6 Prosecution to cross-examine.

7 On this aspect, I would also like to inform the Prosecution that

8 they will be given limited time for cross-examination, and that will be 40

9 minutes for each expert witness. And the reason for this: The Trial

10 Chamber takes it that the Prosecution will have had sufficient time to

11 study these opinions, and they will limit their cross-examination to areas

12 which they think will be helpful to their case, since the case has now

13 been tailored down.

14 The Trial Chamber will proceed to the rest of the filings by each

15 accused, that is, the Rule 65 filings.

16 Yes, Mr. Pantelic.

17 MR. PANTELIC: Yes, Your Honour. I do apologise. Just a few

18 words with regard to the rest of our expert witnesses. Professor Aleksic

19 is the forensic expert --


21 MR. PANTELIC: -- specialised in handwriting analysis. My

22 information as of yesterday is that he is about to finish his report with

23 regard to the evaluation of certain documents presented in this case.

24 However, my other colleagues inform me that there are certain parts

25 relevant for their cases which will require also handwriting analysis.

Page 12015

1 Finally, the position -- the joint position of the Defence is that

2 Professor Aleksic would be able to present a certain professional opinion

3 with regard to the procedural -- criminal procedural matters in the former

4 Yugoslavia, specifically in Republika Srpska, with regard to the military

5 courts, and certain proceedings which we heard enough during the

6 presentation of the Prosecution case, and our opinion is that his

7 professional expertise will help this Trial Chamber to have a clearer

8 picture of these particular periods. And therefore, I do not believe that

9 we would be able to fulfil this particular deadline for Professor

10 Aleksic's report. I would kindly ask maybe a day or two, so that we can

11 directly contact and discuss that matter, and then inform the Trial

12 Chamber about what is the earliest possible time for him to file his

13 report. Of course, I can speak on behalf of my client. We would be ready

14 in practically maybe a couple of days - it's technical matters, just for

15 typing and for preparing this report - to provide, let's say, first part

16 of his report, related to my client, to the Prosecution, as well as to the

17 Trial Chamber, and then we shall see the other parts, how we can deal with

18 that.

19 Also, with regard to the expert witness Dr. Radovanovic, Svetlana,

20 Ms. Svetlana, more details could be presented by my learned friend

21 Mr. Lukic. But as far as I am informed, according to the instruction of

22 this Trial Chamber, the Defence took necessary measures to contact OSCE

23 organisation, as well as the Bosnian authorities, demographic authorities,

24 with regard to the approach to the relevant documentation for the expert

25 witness opinion, I mean the census lists and all other documents which was

Page 12016

1 the topic of the presentation of Mr. [indiscernible]. But as I said,

2 Mr. Lukic will give more details about that.

3 With regard to Madam Kron, Leposava, psychological opinion, I mean

4 expert on psychological issues, we think that maybe, let's say, at the mid

5 of December we could have her report.

6 But speaking of the Defence strategy, our position was to present,

7 first of all, these, let's say, three or four expert witnesses, and

8 then - not to mention Professor Aleksic's handwriting report - and then,

9 by the end of all three Defence cases, by the end of Mr. Zaric case, to

10 call these two expert witnesses: Ms. Radovanovic and Ms. Kron. That was

11 our intention, but of course we shall comply with your rulings. But I

12 would kindly ask to have that in mind.

13 JUDGE MUMBA: The Trial Chamber has no problem with the sequence

14 of calling them. The Trial Chamber has a problem with the filing of the

15 expert report, because of the break.

16 MR. PANTELIC: Yes. And if you allow me, maybe Mr. Lukic can give

17 some more details on that issue.

18 MR. LUKIC: [Interpretation] Your Honours, I am concerned with your

19 decision regarding Mrs. Radovanovic. If you remember, at the end of the

20 Prosecution case I raised the problem which arose from our address to the

21 Prosecution. We asked them to have census lists for 1989 and for 1991,

22 which were delivered to the Prosecution by the Department of Statistics of

23 Bosnia-Herzegovina and OSCE. The Prosecution said at the time that they

24 were not allowed to send us these documents because of their confidential

25 nature. You issued a decision telling us to contact the relevant

Page 12017

1 institution and see whether we can obtain those documents from them. On

2 behalf of all the three teams, I addressed all these institutions, asking

3 them either to send us those materials or to allow us to inspect the

4 materials that had been delivered to the Prosecution. I have to say that

5 this is a very important segment, because the testimonies of

6 Mrs. Radovanovic and Mrs. Tabeau have to rely on these documents in

7 drawing parallels between these two documents.

8 When I addressed the statistical department of Bosnia and

9 Herzegovina, I did not get any answer. I didn't get a single answer from

10 them. On the other hand, the OSCE replied, asking me to provide them with

11 additional information, which I have done recently, and I believe that I

12 will get a reply from OSCE very soon.

13 I was going to submit a written suggestion to the Trial Chamber to

14 help us, but we will not be able to finish this expert opinion by the 26th

15 of November, but we obviously would have needed the materials that were at

16 the disposal of the Prosecution.

17 Maybe we should inform in writing the Trial Chamber and inform

18 them what has been done with regard to these materials, and maybe we will

19 be able to get the assistance of the Trial Chamber, or maybe the deadline

20 will be extended. I am referring here to the demographic expert opinion.

21 JUDGE MUMBA: Very well. The Trial Chamber will consider if any

22 matters will be brought to its attention in writing. The Trial Chamber

23 will be willing to extend the deadline, provided that the filings are --

24 do not come -- do come before the break, before the December Christmas

25 break.

Page 12018

1 On the rest of the filings, the Trial Chamber observed that the

2 filings -- the orders were not fully complied with, neither were the

3 Rules complied with, by the manner in which these filings were made by all

4 three accused persons. However, the Trial Chamber analysed the summaries,

5 which were in most cases not useful. The Trial Chamber has decided to

6 streamline the witnesses so that repetition is avoided. To this extent,

7 the Trial Chamber observed that witnesses for background issues, such as

8 general atmosphere and conditions in Bosanski Samac and its environs, are

9 listed for each accused. It is advisable to cut down on that number of

10 witnesses, as it will lead to repetition. In the event that there is an

11 aspect of background evidence peculiar to any of the accused persons, that

12 should be covered by the particular accused person, while avoiding

13 repetition.

14 As much as possible, the Trial Chamber is alive to the rights of

15 each accused person, as provided for under the Statute, even though this

16 is a joint trial. However, in the interests of justice, especially in the

17 interests of an expeditious trial and judicial economy, Rule 92 bis shall

18 be used to present evidence either in full or in part. The Trial Chamber

19 has observed that for some witnesses, provisions of Rule 71 have been

20 indicated for depositions. Generally, the Trial Chamber is not satisfied

21 on the sufficiency of reasons to resort to this rule. However, each

22 individual application will be dealt with by the Trial Chamber on its own

23 merits, if the Defence still wishes to have some of their witnesses give

24 evidence by way of depositions.

25 The Trial Chamber has examined the issues covered by the proposed

Page 12019

1 witnesses and has decided to direct the Defence as follows: On the number

2 which the Trial Chamber will limit the Defence witnesses to, the expert

3 witnesses will be excluded, and the time taken by the expert witnesses

4 will also be excluded from the overall time for the rest of the

5 witnesses. The Trial Chamber has also decided to allow three character

6 witnesses for each accused person, and these character witnesses are

7 simply to deal with the character of each accused person, and the evidence

8 should be in by way of statements.

9 The Trial Chamber has observed that in some filings, some

10 witnesses are combined character and factual issues. It will be up to the

11 Defence to decide how to deal with this matter. The Trial Chamber thought

12 this it's better to allow three character witnesses for each one and

13 exclude those three from the rest of the number that the Trial Chamber

14 will direct as to be the limitation on the number of the witnesses for

15 each accused.

16 Looking at the filings by Blagoje Simic and the number of

17 witnesses indicated, having examined the summaries which were filed, the

18 Trial Chamber is of the view that a total number of 17 factual witnesses

19 would be enough for Blagoje Simic to cover his evidence in defence of the

20 case against him. Out of these 17 witnesses, the Trial Chamber is of the

21 view that 7 of the witnesses may be allowed to give evidence viva voce,

22 and the rest should be by way of Rule 92 bis. The Trial Chamber decided

23 that the choice of the actual witnesses left on the list will be left to

24 the accused persons, for the simple reason that the summaries were not

25 very helpful for the Trial Chamber to be able to determine what type of

Page 12020

1 evidence in full each witness was going to give. And in any case, it is

2 the Defence who know these witnesses, so they will be able to choose who

3 are their primary witnesses who may be able to cover as much of their case

4 as possible.

5 As the number of witnesses is reduced according to the Rules, the

6 hours will also be reduced. In the case of Mr. Blagoje Simic, we observed

7 that if the witnesses are limited to 17 and the breakdown is given as

8 directed by the Trial Chamber, the hours for presentation of the whole

9 case, that is excluding the character witnesses and the expert opinion

10 witnesses, the hours should also be reduced to 80 hours maximum.

11 Looking at the filings by Mr. Miroslav Tadic, the Trial Chamber

12 has also observed that there are witnesses who are common in various

13 paragraphs of the indictment, and also to avoid repetition and also

14 improve on the time to be taken, the Trial Chamber has decided that --

15 yes. Before I decide on the number of witnesses, there were two witnesses

16 who were included in the filings subsequent to the Trial Chamber's orders,

17 and these are witnesses 32 and 33, Tadic Vlajko and Milos Marko.

18 The Trial Chamber observed that there was no leave granted for

19 these witnesses, but since the Prosecution have not raised any matter as

20 to the inclusion of this witness, of these two witnesses, the Trial

21 Chamber will allow them, and it will be up to the Defence to decide, the

22 Defence of Miroslav Tadic to decide whether to include them since the

23 number is going to be cut down.

24 The witnesses who will be allowed for Mr. Miroslav Tadic will be

25 about 15 witnesses, seven of whom may give evidence viva voce and the rest

Page 12021

1 by way of Rule 92. The hours to be taken have also been reduced going by

2 the same indication of the previous accused person. The Trial Chamber

3 expects that Mr. Miroslav Tadic should be able to complete his defence

4 given about 70 hours of sitting time.

5 For Mr. Simo Zaric, the same applies. Three character witnesses

6 are excluded. Also, the summaries were not very helpful, but the Trial

7 Chamber scrutinised them as much as it could and decided that on factual

8 issues the witnesses should be reduced to 16, seven of whom may give

9 evidence viva voce and the rest are partial going by Rule 92 bis, and the

10 rest of them should be under Rule 92 bis.

11 As I indicated in the case of all three Rule 71 applications will

12 still be entertained by the Trial Chamber depending on the sufficiency of

13 the reasons to be given. And the Trial Chamber would like to point out to

14 the Prosecution that the period for cross-examination for each witness

15 will also be limited to a maximum of 35 minutes for each witness in all --

16 for all the three accused persons.

17 Before the Trial Chamber moves on to discuss the exhibits, I

18 wanted to find out whether there are any preliminary comments by the

19 Defence.

20 MR. PANTELIC: Yes, Your Honour. If I may address the several

21 issues.

22 Your Honour, given the fact that the presentation of Prosecution

23 case was in total around 40 or something like that, 40, 42 witnesses, the

24 Defence was very, very mindful about the certain balanced approach, and

25 we - and of course I'm speaking on behalf of my client and my colleagues

Page 12022

1 will add on behalf of there clients - in particular, these three Defence

2 teams were of the opinion that certain, more or less, total number of 40

3 witnesses on behalf of the Defence would be fair and a really balanced

4 approach, given the fact the consumption of time, resources of the

5 Tribunal, et cetera.

6 Therefore, Your Honour, I respectfully would like to object to the

7 limitations that you just imposed to the Defence of Mr. Blagoje Simic with

8 regard to the number of witnesses, with regard to the way of how they will

9 give their testimonies, and also with regard to the time limitations. If

10 it would be suitable for Trial Chamber, Defence for Blagoje Simic can

11 elaborate this issue in writing. A short motion or explanation could be

12 filed even by the end of today or even tomorrow morning, if that would

13 give assistance to the Trial Chamber.

14 With regard to the Rule 71, I will explain the position of the

15 Defence. There are certain events or episodes or details with regard to

16 my client where it won't be justified for the witness to come here and to

17 testify for 15 minutes or half an hour in terms of the cost of

18 transportation, hotel costs, and, you know, all other expenses of the

19 Tribunal, of the Registry and the administration of the Tribunal.

20 Therefore, given that fact in mind - and we discussed on many occasions

21 that matter with the Prosecution - my understanding is they are willing to

22 follow this practice with regard to Rule 71 bis, we were of the opinion to

23 present certain - according to Rule 71 bis, with a short statement -

24 reasons why we think that Rule 71 bis should be operating and then to

25 arrange, in the presence of the presiding officer, per day several

Page 12023

1 witnesses by way of Rule 71 where the Defence could lead the witness in

2 examination-in-chief and then the Prosecution can follow with the

3 cross-examinations.

4 I will just to give you a few examples. Several witnesses

5 mentioned my client in certain, let's say, episode, isolated events. It

6 is not proper, and that was the position of Defence, to bring these

7 witnesses here to testify only of these isolated events. Therefore, we

8 were of the opinion that I would say cumulative approach might be more

9 realistic in terms of the time consumption of this Trial Chamber, in terms

10 of expenses, and so on.

11 JUDGE MUMBA: Very well. If I may ask on this --


13 JUDGE MUMBA: -- position issue. Was it the intention of the

14 Defence to have all these witnesses for all three accused persons to be in

15 one place?

16 MR. PANTELIC: That is correct, Your Honour. We have discussed

17 previously with the Prosecution that, for example, in Belgrade where is

18 the branch or there is a kind of headquarter of UN for territory of

19 Yugoslavia where there are transportation and logistic advances, that we

20 could bring our witnesses in the premises of the ICTY in Belgrade where

21 there is staff for technical -- I mean, that's matter for the Registry, of

22 course, and then we could deal with them in very, very short period of

23 time, present the transcripts to the Trial Chamber after the

24 examination-in-chief and cross-examination, and then we shall have this

25 complete picture.

Page 12024

1 JUDGE MUMBA: Very well. I think those are sufficient points you

2 have made on this.

3 Any other matter?

4 MR. PANTELIC: Also, Your Honour, with regard to the order, it's

5 really, I would say, a serious matter, because our impression was that we

6 shall follow the standards in terms of the time for the presentation

7 during the Prosecution case, especially with regard to the expert

8 witnesses, and our general approach was that our three expert witnesses

9 will start on November 12 and then these few days they will give their

10 evidences. In that regard, we made all technical arrangements with the

11 Witness and Victims Unit. We prepare practically everything, visa for

12 them and then --

13 JUDGE MUMBA: There is no problem with that. The sequency on

14 calling the witnesses, the Trial Chamber is not concerned with that. You

15 can begin with your expert witnesses if that's the way you prepared.

16 There's no problem with that.

17 MR. PANTELIC: Your Honour, if you give us only, let's say, time

18 in chief for these expert witness, for the biographical details and, you

19 know, this background and then 40 minutes for cross-examination,

20 theoretically we could finish all three Defence expert witnesses in one

21 day.


23 MR. PANTELIC: And then we are in problem. For example, for

24 Professor Nikolic, he is not able to come on these days, 13, 14, and 15.

25 He has some commitments in the faculty in Belgrade. We have -- we were of

Page 12025

1 the opinion to -- for him -- to bring him on the Sunday, 17th of November,

2 and then to present with his -- now everything has changed. It's very

3 difficult now, Your Honour. I do -- I don't want to discuss --

4 JUDGE MUMBA: Mr. Pantelic --

5 MR. PANTELIC: Let me understand. I don't want to give any

6 objections with regard to your position with regard to the time limits.

7 Of course I concur. But now you should understand our position. It is

8 practically impossible in such a short period of time to reorganise this

9 order of witnesses and also to start with the Defence witnesses in such a

10 short period of time. It's impossible, because we are facing a very

11 serious technical problems in terms of arrangements with the Victims Unit,

12 in terms of the --

13 JUDGE MUMBA: Very well, Mr. Pantelic. This is not the first case

14 where witnesses have to be reorganised. Is there any other new item

15 for --

16 MR. PANTELIC: Your Honour, I will inform the Trial Chamber in

17 writing about the details that we are facing with this after the

18 negotiations with the Victims Unit. So we should be in more better

19 position if you will allow me to address the Trial Chamber in writing with

20 regard to that technical issue.

21 JUDGE MUMBA: When you say you want to address the Trial Chamber

22 in writing, why can't you -- you know what it is. Why can't you say it

23 now?

24 MR. PANTELIC: Because I have to call my, for example, expert

25 witnesses to see how -- because they are all persons committed to the

Page 12026

1 other jobs, the university and the other scientific projections --

2 projects. And then I have to contact my witnesses in Samac to see how are

3 their schedules, because frankly, my idea was to -- after hearing these

4 two or three expert witnesses, to give the opportunity to my client to

5 give testimony and then to start with our witnesses.

6 But still, Your Honour, I kindly ask you to reconsider your time

7 limits with regard to the Defence of Blagoje Simic. We need at least, at

8 least, let's say, 110 hours and at least ten witnesses viva voce in order

9 to properly present our defence.

10 Of course, Your Honour, I give you my word professionally and

11 personally. If we shall see that the way of examination and testimony

12 will be smooth enough and shall cover enough events, I give you my promise

13 that I will personally reduce the number of witnesses and also reduce the

14 time. But don't put me in a very, I would say, serious position that I

15 will not have manoeuvring area and time area for organising my defence,

16 because I'm -- I would like to emphasise again that respectfully I do

17 object with regard to the time limitations and number of witnesses,

18 because we think that the Prosecution got much more -- much more time and

19 number of witnesses in presentation of their case.

20 JUDGE MUMBA: Very well.

21 MR. PANTELIC: But finally, as I said, I give you my word that if

22 in that case you grant my request, I will personally reduce the number of

23 witnesses and time. Thank you very much.

24 JUDGE MUMBA: Yes. Mr. Lukic. I will let the Prosecution answer

25 after all three Defence counsels.

Page 12027

1 MR. LUKIC: [Interpretation] I have a few topics, some of which are

2 relative to your decision regarding witnesses. Your Honours, I'm talking

3 on behalf of Miroslav Tadic's Defence, and I must say that Miroslav

4 Tadic's Defence and Mr. Tadic are very concerned with your decision

5 regarding the number of witnesses and the time frame.

6 Miroslav Tadic surrendered to the Tribunal in 1998, and the first

7 interview with the Prosecution he had in 1996. What I claim before this

8 Tribunal, before this Chamber, that since 1998, Miroslav Tadic has wished

9 to present his facts and his story to this Trial Chamber. Now this Trial

10 Chamber, wishing to economise with time, has made a decision which will

11 prevent us from putting on an adequate defence on behalf of Mr. Tadic.

12 And although -- and Miroslav Tadic's defence is really trying very hard.

13 It has tried very hard not to repeat itself. All of us here in this

14 courtroom have heard a lot of repetitions during the Prosecution case,

15 which was understandable on the one hand, but now we are not allowed to

16 present some facts which we deem essential for the Defence case and for

17 establishing the truth.

18 In such a situation, I'm afraid we will not be professionally able

19 to provide for adequate defence, and because of that, I'm asking the Trial

20 Chamber to increase the number of hours and the number of witnesses who

21 will come here to testify viva voce. We ask for 12 witnesses viva voce,

22 but we know that the hours for these witnesses will be insufficient,

23 because we know the number of exhibits and the complexity of the topics

24 that we need to tackle, that we need to prove, and we know that we will

25 require an increased number of hours. This is the first position that I

Page 12028

1 wanted to inform the Trial Chamber about.

2 Secondly, I wanted to ask the Trial Chamber's instructions

3 regarding viva voce witnesses which a certain Defence calls, and they can

4 also testify on behalf of other Defence teams. I believe that all the

5 three Defence teams have some joint witnesses, and we would like to hear

6 your instruction whether when the witness has been examined by the main

7 Defence counsel whether the rest of us will be able to follow on that

8 either during the cross-examination or during the chief examination.

9 It is our position that after the main -- chief examination -- the

10 examination-in-chief by the lead counsel, we should be given some time to

11 also examine the same witness, obviously avoiding any repetition. My

12 client, believe me, does not want to -- these proceedings to be extended

13 endlessly, but he wants his case to be heard.

14 Miroslav Tadic's Defence position is that they want to present

15 their initial address after Blagoje Simic's case. And then after that or

16 during the proceedings of presenting the Miroslav Tadic's case, I believe

17 that my client also would like to testify, but we would inform the Trial

18 Chamber on that in due course.

19 With regard to the summaries, I would like to say that they're not

20 any less -- they're as good as the Prosecution summaries. I believe that

21 we will have a lot of facts, and for that reason, we need an increased

22 number of hours.

23 As far as Rule 71 is concerned, I have spoken with the Prosecution

24 and my learned friends, and indeed in one case there is the need to apply

25 Rule 71 or deposition, then this is certainly the Samac case. For my

Page 12029

1 witnesses that I wanted to give the positions, you have seen for yourself

2 that I was talking about a limited number of facts.

3 On the other hand, Rule 1, paragraph (A) [as interpreted],

4 excludes the possibility to tackle the actions of the accused in the

5 positions. So if we reduce the cross-examination to 35 minutes, I believe

6 that in that case, we're going to complicate both the organisation and the

7 expenses.

8 In my submission, on page 36 I have mentioned my reason for the

9 depositions, and I believe we can organise in one place all these

10 depositions. I have spoken to my learned friend Di Fazio, and I said all

11 Miroslav Tadic's depositions could be finished within ten working days.

12 It would be much easier to organise the courtroom in that case. And 90

13 per cent of these witnesses are from the territory of the municipality of

14 Samac.

15 On the other hand, my proposition would be that these depositions

16 are not taken in Samac for the obvious reasons to all of us. It is a very

17 small town. There are a lot of stories, and all the witnesses to -- that

18 we have spoken to, not only those who ask for protective measures, wanted

19 us to guarantee a certain degree of security to them, and that is why I

20 believe my learned friend Pantelic's suggestion is very good, and it will

21 make things easier for us and that it will also make the organisation of

22 these depositions much easier. Thank you.

23 JUDGE MUMBA: Yes, Mr. Pisarevic.

24 MR. PISAREVIC: [Interpretation] Your Honours, first of all I would

25 like to hear from the Trial Chamber how many hours have been allocated to

Page 12030

1 Mr. Zaric's defence. We have checked with the transcript, but we didn't

2 hear how many hours we have been allocated. I believe that that has been

3 an omission, and we would be very interested in hearing that.


5 MR. PISAREVIC: [Interpretation] I believe that the decision by the

6 Trial Chamber that Mr. Zaric, i.e., his defence, is given the possibility

7 to examine 16 witnesses, 7 viva voce and the rest of them under 92 bis,

8 has jeopardised Mr. Zaric's defence to such an extent that the equality of

9 arms of the proceedings that are being carried out against him has been

10 brought into question.

11 My colleague Lukic has already said, but I would like to repeat

12 that, that Mr. Zaric and Mr. Tadic are the first people from Republika

13 Srpska who had the courage and faith in this Tribunal that they would be

14 given a fair trial here. I will not say anything about the pressures and

15 the problems they were exposed to when they made this decision. Since I

16 participated in the negotiations that resulted in their surrender --

17 JUDGE MUMBA: Mr. Pisarevic, at this time we are only concerned

18 with the preparations for the Defence case, so the Trial Chamber would

19 like you to address your concerns as to the sufficiency of witnesses, and

20 the time, and what you think you would require for presenting your

21 client's case. So please avoid the history.

22 MR. PISAREVIC: [Interpretation] I will try, Your Honour, but I

23 hope that you will have understanding for us. This case has been going on

24 since 1997, 1996, this whole procedure, so finding ourselves in such a

25 position, it is a little difficult for us to accept this, because, while

Page 12031

1 compiling our list of witnesses, we really did try to cover, with our

2 witnesses, all of the things that Mr. Zaric is going charged with in the

3 indictment. We tried to be rational, in our own interest, in our

4 allocation of witnesses, and in the interests of the Defence, and to also

5 avoid repetition. We believe that the number of witnesses that has been

6 allowed will not make it possible for us to cover all of the charges in

7 the indictment.

8 I believe that we would need to be allowed to bring a larger

9 number of witnesses, viva voce witnesses as well the overall number of

10 witnesses. We asked for 21 witnesses. As far as the depositions are

11 concerned, you have noticed that all the proposed witnesses for

12 depositions speak about concrete events. When we were deciding about

13 this, about this method of taking statements -- I won't repeat all of the

14 reasons that my colleagues have mentioned before, but you will see that

15 each witness was an eyewitness to an event, that each witness was

16 mentioned by witnesses for the Prosecution, that they were present during

17 the particular event, and that is why we made this proposal of 27

18 depositions. We understand the rules very well, and we will address you

19 with special requests for you to grant these depositions, and we hope that

20 you will appreciate our request and grant it. I believe that this is of

21 extreme importance in order to find out the truth and meet the

22 requirements of justice.

23 As far as our plan is concerned, the Defence plan for Mr. Zaric,

24 we will give our opening statement before the trial begins of Mr. Zaric,

25 or before the presentation of the Defence case for Mr. Zaric begins. And

Page 12032

1 we would like to inform the Chamber that Mr. Zaric will testify before the

2 Trial Chamber, and we will take that into account while scheduling the

3 witnesses. And if you would be so kind to tell us also how many hours the

4 Defence has been granted in this case. Thank you.

5 JUDGE MUMBA: Very well.

6 Is there anything the Prosecution wanted to say?

7 MR. DI FAZIO: Yes. If I may address you on a number of issues

8 that have been raised, if Your Honours please.

9 Firstly, the matter that immediately arises is the matter of the

10 experts next week. You have indicated that the Prosecution will be

11 limited to 40 minutes per expert witness. I understand there will be

12 three, possibly two, depending on your decision later this afternoon, but

13 at this stage, three witnesses. Forty minutes is considerably less than

14 the two days I had expected to cross-examine Professor Kecmanovic, but I

15 understand and take on board what the Chamber has said, and it's

16 abundantly apparent to the Prosecution that you wish for short, pithy, and

17 succinct cross-examinations. We will comply with that. However, I ask

18 the Chamber to bear in mind that these reports are fairly substantial and

19 hefty reports.

20 Speaking for the expert that I was going to cross-examine,

21 Kecmanovic, I think he's over 60 pages, and I know that in the case of

22 Nikolic, it's 72 pages. So they're substantial matters. A lot of work

23 has gone into producing the cross-examination of those matters and there's

24 a lot of material that we thought we would have to cover. We can reduce

25 it. We can reduce it, and if necessary, of course, we will reduce it to

Page 12033

1 40 minutes, but I ask the Chamber to reconsider and to grant us each a

2 little more time, and I'm going to seek two and a half hours per expert

3 witness. I submit that if you do that, it will enable the Prosecution to

4 make what we consider to be fairly important points in respect of each of

5 those witnesses, and in the overall scheme of things, increasing

6 cross-examination time from forty minutes to two and a half hours should

7 not greatly lengthen matters. So that's the first request that the

8 Prosecution wishes to make in respect of the experts.

9 The second matter that we wish to raise is the general limitation

10 to, I believe, 35 minutes of cross-examination for the remaining

11 witnesses. Again, we hear and understand what the Trial Chamber says, and

12 obviously wishes, namely, to keep cross-examination short, to the point,

13 and pithy, and we will try to comply with that at all times. However, we

14 would seek leave of the Court to deal with cross-examination -- length of

15 cross-examination on a case-by-case basis. A good number of the

16 witnesses, from the Prosecution's point of view, will not trouble the

17 Prosecution very much at all. That's notwithstanding the fact that we

18 really have what are quite inadequate summaries. But even reading between

19 the lines, doing the best we can, I predict that a lot of those witnesses

20 will not trouble us and our cross-examinations will be naturally fairly

21 short.

22 However, some of the witnesses are of particular concern to the

23 Prosecution, and in particular, some of the Crisis Staff -- members of the

24 Crisis Staff. Just asking for comments on some of the documents alone

25 would take that period of time. I fail to see how we can possibly, even

Page 12034

1 with the most scrupulous pruning down of matters, how we can confine

2 ourselves to 35 minutes. So can I ask that the Chamber reconsider the

3 time allocated and deal with this on a case-by-case basis? As I said, I

4 think that ultimately time will be saved because the Prosecution, A, will

5 bear in mind your -- the Chamber's desire to keep matters moving fast; and

6 B, naturally, we can limit our cross-examination in any event. And of

7 course, after we've heard the evidence in chief, that may also provide --

8 make it easier for us to limit our cross-examination. So essentially, we

9 ask that we deal with time for cross-examination of the other witnesses on

10 a case-by-case basis.

11 Thirdly, you have ordered that there be a filing of a reduced

12 witness list. I'm informed that you did not provide a date for that to

13 occur, and if that be so -- my case manager informs me of that, and if

14 that be, so then I would request that the Trial Chamber give us -- give

15 the Defence a time period or time frame within which to file that reduced

16 witness list.

17 [Prosecution counsel confer]

18 MR. DI FAZIO: And my colleague raises a point which I should also

19 raise. When that list is filed, that the provisions of Rule 65(G)(i)(b)

20 be fully complied with, namely, that a true summary of the facts be

21 provided on that occasion. The Trial Chamber has already commented on the

22 inadequacy of the summaries, and the Prosecution endorses, of course, and

23 supports those comments, and we make our position clear that they are

24 inadequate.

25 The summaries really identify areas or issues that the witnesses

Page 12035

1 are going to speak of, not of the facts that they will actually testify

2 to. And of course, 65(G)(i)(b) is plain and clear. It refers to a

3 summary of the facts; not the areas, not the issues, not the topics, but

4 the facts that the witness is going to speak about. We don't, of course,

5 require statement-form detail, but the facts have to be identified, not

6 just the topics or areas. If that is not complied with, then the

7 Prosecution, of course, is going to be in a position where it will have to

8 apply for adjournment in order to investigate matters or facts raised by

9 the witness during the examination-in-chief, and that can be avoided if

10 our attention can be directed to the facts that that particular witness

11 will testify about in advance.

12 So again, I make our position clear. Our view is that the

13 existing summaries are inadequate, and any further summaries that are

14 provided will have to provide details of the facts, not just the topics

15 and issues. Thank you.

16 JUDGE MUMBA: Yes. The Trial Chamber will consider all these

17 submissions at a later stage of these proceedings.

18 The Trial Chamber would like to discuss the exhibits by all three

19 accused. Again here, there are deficiencies in the manner in which they

20 are filed. I would like to find out whether these lists were discussed

21 with the Prosecution, whether the Prosecution were given copies, whether

22 the Prosecution have indicated which exhibits they are not contesting, and

23 things like that, because the filing was silent. Or is this a matter that

24 is going to be dealt with as the case goes? Or what is the position?

25 May I hear from the first accused's Defence counsel?

Page 12036

1 I can directly ask the Prosecution whether they have been given

2 copies of the exhibits.

3 MR. DI FAZIO: We've been given the lion's share of the exhibits.

4 There are a number of documents that we haven't yet provided -- that we

5 haven't yet received. I think they're just basically some translations.

6 But we have been discussing this with the Defence, and that's not -- we

7 don't anticipate any problems. I know that my case manager has been

8 discussing that with the Defence, and we don't wish, at this stage, to

9 make any complaint regarding provision of the documents. Any outstanding

10 material we've discussed with the Defence and it's under control.

11 JUDGE MUMBA: So can the Trial Chamber take it that the

12 discussions on the exhibits are going on, are proceeding?

13 MR. DI FAZIO: Yes, they are, and they're going on, from the

14 Prosecution's point of view, in a reasonably satisfactory manner.

15 JUDGE MUMBA: Very well.

16 MR. DI FAZIO: I can't comment to you, though, about our attitude

17 towards authenticity until we've had further time to look at the documents

18 and study them and examine them.

19 JUDGE MUMBA: Yes. The Trial Chamber is interested in how much

20 time you think you will take to complete the exercise.

21 MR. DI FAZIO: You mean taking the position on authenticity, if

22 Your Honour pleases?

23 JUDGE MUMBA: Yes, for all the exhibits listed by the Defence.

24 MR. DI FAZIO: May I just have a moment to confer with my

25 colleagues on that?

Page 12037


2 MR. DI FAZIO: Thank you.

3 [Prosecution counsel confer]

4 [Trial Chamber and legal officer confer]

5 JUDGE MUMBA: Yes, Mr. Di Fazio.

6 MR. DI FAZIO: I don't think we can give an answer to that

7 question --

8 JUDGE MUMBA: Very well. Then I'll -- the Trial Chamber will

9 leave it to the parties, then, except that it has to be done

10 expeditiously.

11 Before we have our break, Mr. Pisarevic, you were asking about the

12 hours for the presentation of the Defence case for Mr. Simo Zaric.

13 MR. PISAREVIC: [Interpretation] Yes, Your Honour. We didn't hear

14 how much time we had been allotted.

15 JUDGE MUMBA: Oh, yes. I see that you had indicated that you felt

16 that your case would take about 133 hours. Is that correct? How many

17 hours did you indicate?

18 MR. PISAREVIC: [Interpretation] Yes. We said a total of 133

19 hours, including the depositions. We need a total of 102 hours.

20 JUDGE MUMBA: Yes. If I may ask on depositions, since you are

21 including the hours, because it is possible to arrange for the

22 depositions, in the event that they are granted, such that the depositions

23 will be going on, wherever they will be taking place, while the case is

24 going ahead, because then both parties will share the duties.

25 JUDGE MUMBA: Yes, Mr. Weiner.

Page 12038

1 MR. WEINER: Your Honour, I just heard your comment concerning the

2 depositions, and you thought -- or you mentioned the possibility of

3 splitting the teams up and having basically depositions being done

4 somewhere outside of The Hague and also trying the case at the same time.


6 MR. WEINER: This would be practically impossible -- or it would

7 be impossible for the Prosecution. As you know, we lost one of our three

8 trial attorneys at the end -- we just lost, at the end of the

9 Prosecution's case, one of our three trial attorneys. We have a new trial

10 attorney on board who is getting up to speed on the case. Unlike every

11 other Prosecution team on every other case in this Tribunal, we only have

12 three members. All of the other Prosecution teams have five, six, and as

13 many as ten members. We do not have that luxury. We cannot split our --

14 we just cannot split up. We would have to leave basically a new member

15 and someone here, as well as send one member to Banja Luka or someplace

16 elsewhere, where we do not have our facilities, we don't have our sources

17 of information, and have to work -- and have to cross-examine as many as

18 20 witnesses or more for each defendant. The Defence are talking about 70

19 depositions. If you even take Mr. Lukic's estimate of two weeks to do

20 his, we're talking about one to two months, close to two months of

21 deposition time. We don't -- with a three-person trial team, we do not

22 have that luxury. We cannot split the team up and send someone away for

23 two months or for whatever period of time. Even if they cut that in half,

24 down to one month, we can't do that. And plus, if you're looking at

25 cross-examining maybe two, three people a day, going through reports, it's

Page 12039

1 very easy to have someone get up and speak for 15 minutes, or to hand in a

2 statement of 20 pages and introduce maybe that statement and speak for 15

3 minutes. You then have to question that person on numerous subjects. So

4 you have to be totally prepared to question that person, and not just one,

5 but several people a day. And to do that and -- it's just not going to

6 work with the very small trial team that we have.

7 JUDGE MUMBA: Very well.

8 Mr. Pantelic.

9 MR. PANTELIC: If you allow me, please. The Defence is even in a

10 worse position than the Prosecution, and I can assure you that we are in

11 very close negotiation and discussion of that matter, and we shall do our

12 best, both parties, the Prosecution and the Defence, in order to arrange

13 and to make most efficient approach with regard to the time consumption,

14 judicial economy, and also fairness of trial. I can assure you that we

15 can reduce the number of witnesses, we can rearrange the number.

16 I also would like to add that I absolutely concur with the

17 approach of the Prosecution. We are in the same position. We cannot even

18 physically be split as a team and deploy members on the field and then we

19 are working here.

20 So I do believe that maybe after a week of that kind of practice,

21 we should be more able to give a precise estimation in time. But as far

22 as I am informed, in the other cases it can be arranged very efficiently.

23 So I do believe that we shall fulfil that obligation. In due course, we

24 could -- in the meantime, we could negotiate, we could speak with the

25 Prosecution, submit certain drafts of the statements, elect areas, and

Page 12040

1 then we could inform, according to Rule 71, this Trial Chamber, in order

2 to obtain the permission to follow this practice. Thank you, Your Honour.

3 JUDGE MUMBA: Very well. There are a number of issues the parties

4 have raised, and the Trial Chamber would like to consider them and perhaps

5 come up with decisions before the end of the day, or when the Defence case

6 opens.

7 The other question I wanted to be -- I wasn't clear about is the

8 sequence. The Defence for Mr. Simo Zaric did say that they would want to

9 make an opening statement. I just wanted to be clear: At what stage is

10 it? Just before Mr. Simo Zaric opens his defence, or earlier, before the

11 whole Defence case is opened?

12 MR. PISAREVIC: [Interpretation] Your Honour, this would be after

13 the completion of the presentation of Mr. Simic's and Mr. Tadic's case, so

14 directly before the presentation of Mr. Zaric's case begins.

15 JUDGE MUMBA: Very well.

16 Mr. Lukic? Yes.

17 MR. LUKIC: [Interpretation] You mentioned, Your Honour, Judge

18 Mumba, Simo Zaric's defence. I also mentioned an opening statement, and I

19 don't know if that had perhaps slipped by. But I intended to have my

20 opening statement after the presentation of the case for Mr. Blagoje Simic

21 was completed, so before Mr. Tadic's case began. I was planning to give

22 my opening statement then.

23 JUDGE MUMBA: Very well.

24 MR. PANTELIC: And Your Honour, maybe I can be of assistance, and

25 also I would like to raise that issue. Frankly, the Defence for Blagoje

Page 12041

1 Simic, we're of the opinion -- like the Prosecution said, in terms of the

2 presentation of expert witness opinions and testimonies, from that point

3 of view, from Dr. Donia report, we have examined him for a couple of days,

4 and we arranged our schedule on that basis. If the situation will appear

5 that these two or three Defence expert witness opinions, or experts, will

6 appear here, then, as I said, especially for Professor Nikolic, it won't

7 be possible for him to come here prior to the end of this week, which is

8 the weekend, because he has some commitments.

9 Maybe if the Trial Chamber will significantly shorten our time for

10 presentation, maybe it would be more appropriate to start with the Defence

11 case on 18th of November with expert witnesses, and immediately after the

12 presentation of the evidence of my client, Mr. Blagoje Simic. Because,

13 Your Honour, in terms of dynamic, in terms of schedule of preparation of

14 the defence -- frankly, maybe that's my mistake, but that's my impression,

15 according to the previous experience in this case, that the presentation

16 of expert witness testimonies will take a certain number of days, and

17 then, in the meantime, I would be able to clarify certain issues with my

18 client to prepare him for his testimony. But now I am not so sure if the

19 start for -- the beginning of trial would be on the 12th of November, with

20 these very strict time limits, that we could proceed with the testimony of

21 my client. The earliest possibility for him is to start around, let's

22 say, roughly 19th or 20th of November. And I think, in the interests of

23 justice, in the interests of searching of truth, and the situation of my

24 client, who wants to give his testimony, to have that in mind. Just these

25 few words that you will have in order to better render your decision, Your

Page 12042

1 Honour. Thank you.

2 JUDGE MUMBA: Very well. The Trial Chamber will adjourn and take

3 some time to consider all the issues that the parties have raised

4 regarding the preparation of the Defence case, and we'll resume the

5 proceedings at --

6 [Trial Chamber confers]

7 JUDGE MUMBA: Very well. We shall take a break now and resume our

8 proceedings at 1630 hours.

9 --- Recess taken at 3.40 p.m.

10 --- On resuming at 4.35 p.m.

11 JUDGE MUMBA: This is the Trial Chamber's ruling on the expert --

12 the witness expert opinion by Colonel Ostoja Barasin. The Trial Chamber

13 is not satisfied that the Defence has provided sufficient reasons for

14 electing to submit this particular expert opinion. The military expert

15 analysis purports to make conclusions that are within the duty of this

16 Trial Chamber to draw where appropriate. This expert also endeavours to

17 deal with certain major issues in this case, for instance, which entity

18 planned to control the territory comprising the village of Bosanski Samac

19 and the surrounding areas. Such issues are for the Trial Chamber to

20 decide, and by this reason alone, it will not assist the Trial Chamber.

21 The task of determining the background to the conflict as alleged

22 in the indictment is within the capacity of any tribunal of fact through

23 analysis of factual material put forward by the witnesses and the

24 documentary evidence. The Trial Chamber is thus entitled to reject

25 evidence or material that is of no assistance to the Trial Chamber in the

Page 12043

1 performance of its task.

2 Evidence that lends support to the argument based on tu quoque is

3 inapplicable and therefore irrelevant in view of the absolute character of

4 obligations imposed by fundamental rules of international humanitarian

5 law. This point was elaborated upon in the trial judgement of the case

6 against the Kupreskic. The fact that there may have been war crimes or

7 crimes against humanity perpetrated against the Serbs by Croats and

8 Muslims does not justify the commission of similar crimes by Serbs as

9 alleged in the indictment.

10 For the foregoing reasons, the Trial Chamber finds that the

11 Colonel Ostoja Barasin's witness opinion filed herein pursuant to

12 Rule 94 bis will not assist the Trial Chamber. It is accordingly rejected

13 and shall be excluded.

14 On the rest of the matters which have been discussed this

15 afternoon, the Trial Chamber has reconsidered its rulings and has decided

16 that on the number of witnesses given for each accused, the number will

17 remain the same. The Defence will have to reorganise their lists and file

18 them by Tuesday next week, 1300 hours. And attention should be given to

19 the matter raised by the Prosecution and also mentioned by the Trial

20 Chamber on the summaries. There is need for more details so that the

21 facts which will be deposed to are clear so that the Prosecution can

22 prepare their cross-examination.

23 The submission by the Prosecution on the time allocated for

24 cross-examination of each expert witness, the Trial Chamber has

25 reconsidered the matter but wishes to point out that cross-examination

Page 12044

1 should be directed to areas of the case of the Prosecution which may or

2 might be weakened by that particular expert opinion. It's not just

3 cross-examination on every point that the opinion or the evidence has

4 raised. It must be tailored to strengthen one's case. So the Trial

5 Chamber will extend the time to one hour, maximum one hour, for each

6 expert witness.

7 On depositions and the witnesses which the Defence wish to have

8 reallocated for Rule 71 depositions, the Trial Chamber has reconsidered

9 the matter and has decided that each application will be considered, as

10 long as sufficient points are raised on why that particular witness should

11 give evidence by way of deposition, and these applications should be made

12 to the Trial Chamber by Thursday next week, 1300 hours. So we're giving

13 the Defence a week, that is, Thursday, 14 November, by 1300 hours.

14 The Trial Chamber would like to point out that since both parties

15 have indicated that it is not possible to split themselves so that while

16 the case is going on here in The Hague, depositions can be taken

17 elsewhere, the Trial Chamber was examining the calendar and has decided

18 that deposition evidence will be taken at the place agreed to by the

19 parties, at the places agreed to by the parties, during the week beginning

20 9th December and 16th December. Those are the two weeks the Trial Chamber

21 has allocated for deposition-taking, to allow the parties to be there, for

22 purposes of taking the evidence and cross-examination. And the Trial

23 Chamber also considers that this is sufficient -- it will give sufficient

24 time to the registry to make the necessary arrangements for presiding

25 officers and the rest of the team that need to be there, since we'll also

Page 12045

1 need interpreters. So the week beginning 9th December and -- the weeks

2 beginning 9th December and 16th December this year.

3 [Trial Chamber and legal officer confer]

4 JUDGE MUMBA: If any matters will be raised that it may not be

5 possible, then the Trial Chamber will reorganise the way this is going to

6 be handled, because I've just been informed that there are matters of

7 difficulties with budget to accommodate the positions. So we'll see how

8 this goes. However, the applications must be made.

9 The hours for Mr. Simo Zaric's presentation of his case -- yes,

10 this was omitted. They were actually calculated to be 90 hours total for

11 presentation of the Defence case. This is excluding, like I said with the

12 others, expert witnesses and also character witnesses.

13 On the question whether, on any Defence witnesses, the other

14 Defence counsel can examine the witnesses to elicit the evidence that may

15 be relevant to the defence of their clients, this is allowed, and the

16 Trial Chamber will allow that to be done, so that, as much as possible,

17 each witness can be fully conversed for the evidence that is relevant to

18 either one accused or all three accused. And the Trial Chamber hopes that

19 this may lead to a reduction of evidence for the other accused, if they

20 are able to get all the evidence they need, and also it will greatly

21 reduce repetition for various witnesses who may be coming later.

22 On the Prosecution's submission for cross-examination of

23 witnesses, factual witnesses, the Trial Chamber has reconsidered this

24 matter. Again, it wishes to repeat that cross-examination should be

25 tailored to strengthening the case where it appears to have been weakened

Page 12046

1 by the evidence of the particular witness. This will be dealt with case

2 by case, on a case-by-case basis, but the Trial Chamber is not prepared to

3 revise the time already given for cross-examination. So the Prosecution

4 should make sure that they tailor their cross-examination within that time

5 limit. If the Trial Chamber will see the need for extending the time, the

6 Trial Chamber will do so.

7 On the question as to when Mr. Blagoje Simic, who is going to give

8 evidence in his own defence, can give evidence, Mr. Pantelic did say that

9 because of the way they had arranged the expert witnesses and the time

10 they thought that would take, he was -- it was envisaged that he will

11 start giving evidence on the 18th of November. That is a week -- more

12 than a week after the Defence case has opened. The Trial Chamber would

13 like to say that every accused person who has a case to meet should be

14 prepared to start their case at any time, and I think that we've had

15 sufficient break for every accused to be sufficiently prepared to give

16 evidence, and the Trial Chamber would like to see that Mr. Blagoje Simic

17 starts giving evidence immediately after the last of the expert witnesses

18 has completed their evidence. So it may be next week, any of the days

19 when the expert witnesses have completed their evidence, those for whom we

20 already have reports.

21 There was also some submissions on the deadline of 26th of

22 November for the rest of the expert witnesses and the difficulties that

23 the Defence are facing in getting them ready. The Trial Chamber is

24 prepared to extend the deadline but not later than the beginning of the

25 recess, that is December the 13th. So the Trial Chamber has extended that

Page 12047

1 deadline to December the 13th so that the recess time can be used by the

2 Prosecution as well as the Trial Chamber to examine those reports and take

3 the relevant decisions.

4 Any other matters?

5 MR. DI FAZIO: Just one matter that I want to raise with Your

6 Honours. That is the scheduling that you envisage for any Rule 71

7 witnesses.


9 MR. DI FAZIO: I think the dates that the Chamber has mentioned

10 are the 9th to the 16th of December.

11 JUDGE MUMBA: The week beginning the 9th.

12 MR. DI FAZIO: The week beginning the 9th.

13 JUDGE MUMBA: And the week beginning the 16th, yes.

14 MR. DI FAZIO: 16th.

15 JUDGE MUMBA: Of December, yes.

16 MR. DI FAZIO: Right. That will raise some personal difficulties

17 for the Prosecution, and I don't know what the position is with the

18 Defence, but I understood and we've made inquiries that -- regarding the

19 court calendar, and I understood that the Chamber was breaking on or

20 around the 11th of December. That had been my understanding from

21 information that I've gathered. If I'm wrong, then I stand to be

22 corrected. My colleague tells me it was in the published calendar.

23 In any event, I think that the --

24 JUDGE MUMBA: Yes, because the Tribunal will have Plenary as from

25 the 11th of December.

Page 12048

1 MR. DI FAZIO: That's right. So --

2 JUDGE MUMBA: 11th, 12th, 13th, Plenary, and that's the end of the

3 sittings.

4 MR. DI FAZIO: That's right. So based on those calculations,

5 myself and my colleagues have made personal plans for that period of time

6 and plans of some long standing, at least in the case of two of us.

7 In those circumstances, I wonder if the Chamber would be prepared

8 to reconsider the matter and -- would you just bear with me for a moment,

9 please?


11 [Prosecution counsel confer]

12 JUDGE MUMBA: Yes, Mr. Di Fazio.

13 MR. DI FAZIO: My colleagues are anxious that I perhaps detail our

14 problems a little more clearly. Mr. Re has made plans, on the basis of

15 the 11th being the last sitting day, to travel to Australia, and

16 rescheduling flights at that particular time I know, as a matter of fact,

17 and I can personally attest to this, is impossible. You cannot change --

18 you can't even get flights now to that part of the world at this point of

19 time. Changing flights, one might as well forget about it.

20 JUDGE MUMBA: Yes. Very well, then. Mr. Di Fazio, what you are

21 actually saying is that because the plans have already been made, it's not

22 going to be possible for the Prosecution to attend.

23 MR. DI FAZIO: It's Christmastime, and they're plans of long

24 standing, Your Honour. I -- we wouldn't raise this if they were matters

25 that had just only recently been made -- plans that had just only recently

Page 12049

1 been made, family reunions that have to be organised a long time in

2 advance.

3 JUDGE MUMBA: Very well. Very well, then. The Trial Chamber will

4 have to work out other possible dates other than those two weeks

5 mentioned. So the depositions, it's not possible to have the depositions

6 taken in the month of December this year, but the filings should go ahead

7 as scheduled and then the Trial Chamber will be able to make a final

8 decision only the dates.

9 Any other matters? The Defence, any matters?

10 MR. DI FAZIO: Just one very minor matter. During the course of

11 the expert's cross-examination by myself, would the Chamber have any

12 objection to Mr. Andrew Corin sitting in court to assist me for that hour

13 of his cross-examination? He did so, apparently -- he reminds me -- I

14 can't recall, but he reminds me that he did so during the evidence of

15 Dr. Donia. I just would prefer to have him there to assist me in case any

16 matters of expertise that he possesses can assist me.

17 JUDGE MUMBA: Any objection from the Defence?

18 MR. PANTELIC: No, Your Honour. We don't have any objections. We

19 even don't want to object even if Dr. Donia will sit here with the -- our

20 learned friends. Thank you.

21 JUDGE MUMBA: Very well, then, Mr. Di Fazio, he can sit in.

22 MR. LUKIC: Sorry.

23 JUDGE MUMBA: Yes, Mr. Lukic.

24 MR. LUKIC: [Interpretation] Maybe the Trial Chamber could give us

25 any information regarding the working hours. Will we work only for half a

Page 12050

1 day or the whole day? It's very important for our scheduling. So can you

2 tell us whether we will have half-day sessions or whole-day sessions in

3 the first -- the initial period of the proceedings? And are we going to

4 sit in the morning or in the afternoon if the sessions are going to be

5 half-day sessions?

6 JUDGE MUMBA: The latest court calendar has just been issued. I

7 would urge the parties to check that. I don't have it today, but I'm

8 informed that next week we will be sitting both morning and afternoon,

9 starting at 0930 and then in the afternoon starting at 1430. But the

10 legal officer will confirm with the parties before the end of the morning

11 tomorrow as to the latest court calendar.

12 And also while on this issue, we have so many trials going on and

13 having different types of schedules, so I would urge both parties actually

14 to keep checking the calendar because it gets revised all the time.

15 Because each time we have a courtroom available, we will endeavour to sit

16 the whole day. Otherwise, it's usually half day, either mornings or

17 afternoons. But if the courtroom is available, we would like to move on.

18 There being no other matters, the court will stand adjourned until

19 Tuesday when we shall open the Defence case.

20 --- Whereupon the Pre-Defence Conference adjourned

21 at 4.58 p.m.