Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8609

1 Thursday, 25 July 2002

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.05 a.m.

5 JUDGE MAY: This is the Pre-Trial Conference relating to the two

6 other indictments in this case relating respectively to Croatia and

7 Bosnia. We propose to begin with the Prosecution and hear submissions.

8 We'll hear next from the accused and finally the amicus if any of them

9 want to add anything.

10 Mr. Nice, we have had the opportunity of reading the very full

11 pre-trial brief. If I may say, we have given it consideration. We have

12 various measures in mind. Of course you must have the opportunity of

13 addressing us upon them. We propose to make orders under Rule 73 bis

14 about the rest of the case.

15 The issues which, therefore, arise are concerned with a time

16 estimate and fixing a time. We have fixed April the 10th as the final

17 day. Obviously there have been developments since then and that date has

18 got to be reconsidered.

19 If it would be of assistance, it may be that I can indicate the

20 matters upon which we would be grateful if you would address us. The

21 first is a time estimate for the length of the Prosecution case, number of

22 witnesses. At the moment, of course, we have the details in the brief.

23 The next matter I would like you to consider is this: Whether

24 opening statements are necessary, this case now having run for four months

25 and more. If opening statements are felt to be necessary, and of course

Page 8610

1 it's a matter for you since you would make the first, should they be

2 restricted in time. So we'd be grateful if you would consider that.

3 The other general area is the order of evidence, and we have in

4 mind -- I think we've raised this before, the problems, first of all, of

5 preparation, very real problems of preparation of a case of these

6 dimensions for all those involved but particularly the accused, that it

7 would be easier if the evidence relating to Croatia was largely dealt with

8 first, which would allow the Christmas recess for preparation of Bosnia.

9 Now, I remember that you told us earlier that you had some

10 witnesses in common, but perhaps you could consider that and let us know

11 what the position is as far as possible.

12 In terms of specific orders as to evidence beyond the general

13 broad orders, which I've mentioned, we have two in mind. The first is to

14 reduce the number of municipalities in the Bosnia case. We note that you

15 intend to lead comprehensive evidence on 14 of the 47 and not to call

16 evidence on a further nine. We think that that should be reduced further.

17 We recognise the complexity and the seriousness of what happened, but this

18 is a criminal trial, and the evidence must be brought within a manageable

19 scope. We have in mind an order except with leave there should be

20 evidence only on the 14 and the three for which genocide is charged. So

21 that would be a reduction to 17 municipalities. There may be reasons for

22 additional evidence, but that's what broadly we have in mind. And we have

23 in mind a reduction of the insiders, or it could be possible to reduce the

24 number of insiders and they were all the number of live witnesses.

25 Likewise in Croatia, what we have in mind in relation to that indictment

Page 8611

1 is that serious, indeed very serious as the matters alleged are,

2 nevertheless some balance has to be drawn between two indictments. And

3 the Bosnian indictment is much the broader in terms of scope and length of

4 time, and that the Croatia indictment should be reduced or the evidence,

5 rather, should be reduced accordingly.

6 We noted in particular that it was proposed to call 20 experts,

7 including experts on psychiatry and propaganda. We are not satisfied that

8 those are necessary, and we have in mind reducing those to nine in all.

9 And as I say, reducing the number of witnesses proportionately to that in

10 the Bosnia indictment.

11 At the moment, on our -- on our mathematics, which can only be

12 approximate from your proposal, the proposal is to call or to have a total

13 of, it appears, to be 560 witnesses, 275 being live, and the time

14 estimate, we work it out, for the cases in chief is 120 days for the

15 Croatian indictment -- I'm sorry, 110 days for the Croatian indictment and

16 120 for Bosnia, a total of 230, which in chief would take a year and some

17 four months or so. That would be -- doesn't allow time for

18 cross-examination, and therefore, we would be looking at a Prosecution

19 case of something in the order of two to two and a half years from now,

20 and we have to say that we regard that as an unmanageable length and not

21 consistent with a fair and manageable trial.

22 MR. NICE: Dealing some of those points in different order,

23 opening statements, subject to any views by anybody else, we would think

24 the best course is to get on with the evidence, but obviously --

25 JUDGE MAY: I think it's matter for you.

Page 8612

1 MR. NICE: If others want opening statements, then we would feel

2 the need to make one ourselves, but if there is to be no opening

3 statements, we're entirely content with that.

4 If in the event that the accused wanted to make an opening

5 statement and the Chamber allowed him to make one, it probably would be

6 necessary for us to make one as well. We think it should be time limited

7 in those circumstances, but our basic preference would be to just get on

8 with the evidence. We had an abbreviated opening but nevertheless an

9 opening, and we think it would be better to get on with the evidence.

10 JUDGE MAY: Speaking for myself, I think that getting on with the

11 evidence would be better. We've had opening statement in this case which

12 have run to over five days, so I don't think we need any more.

13 MR. NICE: Can I, before I turn to the various topics that you've

14 helpfully raised for us to consider, just review the position in the

15 Kosovo part of the case for two reasons? One, to tell you what I

16 calculate to be outstanding to be dealt with in September. And two, to

17 give you somewhat of a snapshot of statistics, because I think the

18 statistics are helpful in showing how it may not be necessary or even

19 desirable to impose particular identified limits of time or numbers at

20 this stage and to rely on us doing our best to comply with the spirit of

21 the orders that you may make or wish to make.

22 First, where we are. Our calculation, and we've got a witness

23 list we can distribute for you which may be helpful, but in the broadest

24 terms, I mean, we can look at the detail if necessary, there's about two

25 to three weeks of evidence outstanding in Kosovo, including Mr. Lilic. If

Page 8613

1 you exclude Mr. Lilic, then I think it's only two weeks. As I say, we can

2 look at the detail in a minute and the time that evidence will take is

3 dependent on a number of things.

4 If I can first of all give it to you in headlines. Outstanding

5 crime base witnesses, depending on whether some of those for whom we've

6 made application are taken fully 92 bis or whether they're all subject to

7 cross-examination would take between three and five days. Allow for about

8 a week.

9 There are then one or two witnesses whose evidence we are still

10 seeking, and it arises from cross-examination, and we hope to have it

11 available in September and served in time for the accused and the amici to

12 deal with it. I can't necessarily identify the witnesses or even the

13 topics at the moment for fear of their not being able to be seen without

14 restraint, but they're limited in number and once the subject of

15 application the Chamber will see precisely why we will be applying for

16 them. It's always better to deal with issues once they're raised in a

17 Prosecutor's case in chief rather than wait for rebuttal.

18 So those witnesses might take part of or the best part of another

19 week, and then if Mr. Lilic is to be dealt with, as it were, in the Kosovo

20 time period and if, for example, the witness in respect of whom there is

21 an outstanding and unresolved application under Rule 70 is dealt with in

22 this same period of time, why, then, we think it might go up to a third

23 week.

24 May I press on the Chamber that that is an extremely satisfactory

25 result given the original estimates of time offered by the Prosecution,

Page 8614

1 given the initial resolution of the Chamber that the Kosovo case should be

2 finished, I think, by the end of the week after next, which is one of the

3 two to three weeks that we would require in September, and given that

4 we've lost whatever it is, four weeks or so, for one reason and another.

5 We have, in short, not only met the deadline imposed, but we have done

6 considerably better than that deadline.

7 In arithmetical terms, our calculations suggest that we've only

8 taken, that is, the Prosecution's only taken some 92 or 93 hours. Of

9 course, a lot of our evidence has also gone in under 92 bis. We've taken

10 something of that order, with the accused taking about 140 hours, and the

11 amici about 14 hours. So that we've barely taken half the time.

12 If you look at the statistics simply in terms of the live witness;

13 the accuse has taken 13 per cent more time than we have.

14 So if we've managed to put our case in in respect of Kosovo in

15 under a hundred hours, which at a five-hour day is an astonishing limited

16 month or a little bit more, we are, I think, to be given credit for that.

17 And the Chamber will have in mind that we've achieved that result by,

18 first of all, successfully persuading the Chamber or the Chamber of its

19 own mind deciding upon reforms that have -- not reforms, procedural

20 techniques that have enabled evidence to come in more swiftly. Not only

21 92 bis, but as we term it now 92 demi-bis. But I suppose we should be

22 careful about extending our language too far. And then of course, there

23 is the list of those who will never be bis'd, but never mind. That's for

24 another day.

25 So we've done it by procedural techniques, and we've been able to

Page 8615

1 do it and we've been able to keep the Court fully occupied on all bar 20

2 minutes, I think, of its sitting times, roughly, by necessary flexibility

3 on our part, by reviewing witness lists and cutting witnesses when it

4 becomes apparent from the developing conduct here, cross-examination by

5 the accused and so on, cutting witnesses whenever possible and cutting the

6 evidence from particular witnesses whenever possible.

7 So although the initial target time given by the Chamber might

8 have been thought to be -- I don't mean in this in a pejorative sense --

9 arbitrary in the sense that it wasn't particularly calculated. It was a

10 timetable acceptable to the Chamber. We worked to it and we got there

11 rather better than that.

12 I've made it clear, I think, on previous hearings of this type

13 that I recognise the sense in the limitation of time and the brevity of

14 the case and subject to the conflicting, sometimes conflicting demands of

15 proving the case sufficiently but respecting the somewhat, some might say,

16 extended time requirements of the adversarial system, nevertheless, I will

17 do all I can to meet target dates as set by the Chamber, and I trust the

18 Chamber will accept that that is so.

19 When we then turn to your particular suggestions, and you came

20 first, I think, to deal with the order of indictments and whether it

21 should be Croatia first and Bosnia second, our position is really this:

22 We think Croatia and Bosnia is going to be economically dealt with in

23 terms of time if it is dealt with as a single case linked, as it is, in

24 time in any event. Of course, and in the most general terms, the Croatia

25 evidence will come before the Bosnian because that's the way things work

Page 8616

1 logically and chronologically. But there are areas of evidence where it

2 would be convenient, in terms of witness time taken, and convenient, we

3 would judge, for the Chamber to have topics covered comprehensively for

4 both indictments, whether we're looking at the role of the MUP or the role

5 of the VJ, or something of that sort, it might be simply much more

6 convenient to have a block of evidence that deals with the topic.

7 And of course, when we come to experts, the Chamber's already

8 indicated that it would be quite wrong to have more than one expert on any

9 particular topic, and we're not intending to. It would be one expert to

10 cover, in nearly all cases, all three indictments. We would, therefore,

11 intend to present evidence for the remaining two indictments on the basis

12 that it is a single case. The presentation will, we hope, be logical and

13 will be designed to bring to the Chamber, at an early stage, evidence

14 about linkage, about the overall course of events, from experts and from

15 live witnesses. And one of the purposes of doing that is that depending

16 on the scope of the evidence, depending on the cross-examination of it, it

17 may be possible to reduce very substantially witnesses in mind for coming

18 later. But in the same way as we've done it with Kosovo, it may not be

19 possible to forecast in advance which particular witnesses can be pruned

20 from the list until we see the earlier, more significant witnesses and how

21 their evidence is dealt with.

22 We have already prepared a list of witnesses. I haven't yet

23 served it because we haven't had a final discussion amongst the various

24 involved lawyers, but we have prepared a list of witnesses. It's

25 basically a Croatian list, but it incorporates a number of other witnesses

Page 8617

1 within its first 54 witnesses. And we believe that that first 54 or I

2 should say roughly 60 witnesses will provide an extended view of much of

3 the case and are likely to take the Chamber and the accused until about

4 the Christmas break, but of course it may be less than that. We just

5 don't know. And accordingly, if we're able to serve this list as we would

6 intend, if not before the beginning of next week in next week when those

7 with a particular interest in the Bosnian indictment are able to be

8 satisfied that it's a list with which they are as happy as those concerned

9 with the Croatian indictment, we can serve it at the beginning of next

10 week or in the middle of next week, then that should provide a working

11 plan for everyone to take them up to Christmas.

12 A number of experts are included in that list and a number of

13 high-level insider witnesses.

14 We would ask the Chamber at this stage not to make simply a cut in

15 numbers of witnesses because, in our respectful submission, that's

16 unlikely in itself to achieve anything except probably unwarranted anxiety

17 on the part of the Prosecution trying to budget when it's going to be

18 reducing witness numbers and time taken in any event.

19 Can I observe in passing that of course there are still two

20 decisions to be made that will affect the amount of time evidence will

21 take in any event? One is the decision to be made in this part of the

22 case about crime base witnesses being taken fully 92 bis. I know it's

23 only a small issue, but it may affect other parts of the case.

24 JUDGE MAY: Well, I think the answer is that as far as this part

25 of the case is concerned, the usual rule will be followed. I think that's

Page 8618

1 likely, though we haven't yet fully determined the witnesses. So it will

2 be not full but with cross-examination.

3 MR. NICE: Very well. We of course will press, because it's

4 important we do so in the other parts of the case, that full provisions of

5 92 bis should apply in many cases with relation to crime base evidence.

6 The provisions are there.

7 JUDGE MAY: In this part of the case there have been particular

8 issues which have been raised which have to be resolved. Then whether

9 similar issues will arise in other parts of the case is of course a

10 totally different matter.

11 MR. NICE: That we follow.

12 JUDGE MAY: And it may be that, of course, on each incident we

13 will hear one or two witnesses and then we will have to decide whether

14 real issues arise from the cross-examination or not or whether they're

15 merely argumentative and the like or tu quoque.

16 MR. NICE: Your Honour, I'm glad that the Court has mentioned that

17 because I was going to turn to that, perhaps curiously at first sight, but

18 turn to that when the Chamber turns to consider the medical condition of

19 the accused, and I can forecast now what I was going to say otherwise, and

20 it's this: The accused may require assistance to save himself by the

21 Chamber identifying issues, if necessary, as it were, on his behalf in

22 order to reduce the amount of time he spends in preparing to argue points

23 that simply exhaust him and serve no useful purpose.

24 It's going to be a matter for the Chamber how it deals with that,

25 but it seems to me that's something we can consider.

Page 8619

1 The second issue that has yet to be resolved and that may affect

2 the time evidence will take is the issue in the Appeals Chamber about

3 summarising witnesses. Obviously we are hoping that that matter will be

4 listed for hearing as early as may be in order to assist the further

5 conduct of this trial as well as to assist other trials. We don't express

6 a view on how much it might save in time were it to have application in

7 the Croatian and Bosnian indictments, but clearly it could have some

8 significant effect.

9 That's perhaps all I should say about the order of evidence. I

10 hope that the Chamber will accept our judgement that the cases should be

11 dealt with generally as a single topic, although of course Croatian

12 evidence tends to come first chronologically. Our provisional plan is

13 that crime base evidence would come towards the end of the case or at the

14 end of the case. It had to come at the beginning in the Kosovo case

15 because it was obvious there would be procedural problems to be resolved.

16 They now all have been. So in principle, it can come at the end of the

17 case. Coming at the end, it probably will be possible to reduce the time

18 it takes more than where it to come elsewhere because issues will be more

19 clearly identified.

20 It may be sensible to take the Croatian crime base evidence

21 somewhere before the end of the case, perhaps, as it were, at a notional

22 end of the Croatian part of the indictment. We're -- haven't made a final

23 decision about that, but that may be desirable not least because it would

24 provide some variety for the Chamber. And of course, it's necessary to

25 have some crime base evidence. We can't present these cases as entirely

Page 8620

1 dry events detached from the awful realities on the ground.

2 If I can leap to insiders and come back to deal with the Bosnian

3 municipalities in a second. We'd ask you not to again make any decision

4 on the number of insiders available to be called for several reasons, but

5 principally, I think these two: First, it's never very easy to know in

6 advance whether an insider is actually going to be available to us in due

7 course. Second, if in the event particular insiders do become available,

8 they may save an enormous amount of other evidence, and so in the

9 balancing exercise, one insider may turn out to be worth several other

10 witnesses, and there's great economy in being allowed to call them.

11 The fact that we list an intended number at this stage will not

12 free us from satisfying the Chamber and the Chamber from deciding on a

13 witness-by-witness basis that the witness should be called, and we would

14 ask you simply to leave that as an open issue, there being no real

15 advantage in imposing what might be thought to be simply an arbitrary

16 figure at this stage.

17 And as I think I have I've might clear and is perhaps indeed clear

18 from what we're doing in the case at this very moment, it may be desirable

19 if not even necessary for the Chamber to hear from insider witnesses close

20 or closer to the accused than other witnesses may be, whether or not the

21 totality of their evidence is evidence that the Prosecution would rely on,

22 because that is the way to get the best evidence about this case to a

23 discerning Trial Chamber.

24 Coming back then to the Bosnian municipalities, the 14 and the

25 three. As the Chamber will have in mind from the way things are put in

Page 8621

1 the filing of the 19th of June at paragraph 8, there has been this very

2 substantial reduction in municipalities upon which we will rely, from 47

3 to 14, eliminating nine. And as to the other municipalities, the 24, it

4 is only for particularly significant evidence that we will turn to events

5 in those municipalities, evidence that would qualify as linkage evidence

6 or otherwise have a particular significance. It is not the intention by

7 that evidence necessarily to prove counts in relation to those other

8 municipalities. Not at all. But the evidence will be significant and

9 important evidence going to linkage or other matters, possibly matters of

10 pattern, evidence that it would be, in our respectful submission, quite

11 wrong to exclude on a generalised basis at the moment and evidence that it

12 will be proper to consider when we seek to call it on an item-by-item

13 basis, because it's not possible for me to spell out in a way that will be

14 helpful to you now its value. It will have to be looked at individually.

15 But we would ask you not at the moment, because it would be quite wrong,

16 in our submission, to do so, simply to exclude it in general.

17 I trust the Chamber is heartened by the substantial reduction.

18 The plan of work set out in this filing is detailed, and the Chamber will

19 probably readily recognise from the way the material is set out the scope

20 for application of 92 bis or 92 demi-bis, if I can so describe it, for

21 proving these matters. And we simply do not know to what extent the

22 accused will feel it necessary or desirable to cross-examine these

23 witnesses in the very different circumstances from those applying in

24 Kosovo.

25 Turning to Croatia, I'd like, if I may, to come back after further

Page 8622













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Page 8623

1 discussions with one of my colleagues about psychiatrists, but propaganda,

2 I think, is something that we would rely on as an important and

3 significant element in this case, that we may only be able to prove

4 compactly by an expert and we would press you at the moment to make no

5 excluding order on that. Propaganda is an important element in these

6 cases. Of course, it's been dealt with, we know, separately in Arusha for

7 the Rwanda cases, and extensively being dealt with there. And we would

8 ask you to allow us the opportunity to present an expert's report for

9 possible adduction in evidence.

10 As to the reduction, we would say that again this case is already

11 reduced, as the work plan shows, to a sensible size given the time that

12 may be saved by the application of 92 bis. And that again, there is no

13 reason to doubt but that we will and that I will, in particular, ensure

14 that sensible target dates for conclusion of the Prosecution's case will

15 be met and that by continued reporting to your Chamber, as I'm always

16 prepared to do, you will be in a position to be satisfied that I am

17 working towards and achieving that goal.

18 JUDGE MAY: So you're asking us not to impose a target date.

19 MR. NICE: Your Honour, if I can be absolutely blunt -- sorry.

20 JUDGE MAY: What I was going to say is that we have a target date,

21 of course, at the moment. And if you're not asking us to impose one, then

22 what is your time estimate?

23 MR. NICE: Your Honour, the target date that the Chamber has

24 imposed was April. In light of events and assuming the same availability

25 of court time, court working time, which is basically every day of the

Page 8624

1 week, between four and five hours a day, then it would probably be

2 inevitable that that time -- that target date should be put back by a

3 month or whatever to accommodate time that we've already lost.

4 We would know that the Chamber is working, then, on the basis of a

5 May or perhaps June conclusion. And I would much prefer to have that as

6 the target date, to plan on the basis that we can attempt to meet that and

7 report back to you if it becomes clear to us that we really can't. And

8 not to do that at Christmas or February, but to do it on a regular basis,

9 because these cases are very difficult to prepare and present, as I'm sure

10 the Chamber will accept. We haven't yet got into the stage of working

11 together just for Croatia and Bosnia because I've been much involved in

12 Kosovo, but we are now in the stage of making final plans for the

13 preparation for that part of the case.

14 I think, first of all, we will be able to present you and the

15 accused with a list of witnesses that will keep everybody busy until

16 Christmas. And by a snapshot summary of what that witness -- those

17 witnesses deal with, you will see how far we will be able to take the case

18 roughly by Christmas. And it should be possible for us, perhaps next

19 week, to set out in more detail how the balance of the period up and until

20 May or June of next year could be used, and as I would hope, could be used

21 in a way to conclude the case within that target time of yours. But if

22 it's going to be longer than that, then I must come clean and come and

23 tell you. But at the moment, I would say we hope to work to that target

24 date.

25 JUDGE MAY: We will have to, of course, take into account the

Page 8625

1 medical condition of the accused as shown in the medical report with a

2 recommendation for further treatment.

3 MR. NICE: Well, Your Honour, I've touched on that once already,

4 and I have no idea what the Court is proposing, but of course my proposals

5 are on the basis of five days a week and the same numbers of hours that

6 we've had thus far. And of course if there is to be a variation in that,

7 there should, in all fairness to all parties, be an appropriate extension

8 of time to reflect any diminution in the sitting hours of the day, for

9 example. But I would encourage the Chamber to find other ways to lessen

10 the burden on the accused.

11 Principally, of course, we would press him through you to make the

12 use of lawyers to represent him. Other courts around the world, and I

13 think even in Arusha have imposed counsel on accused, and that is the way

14 he can save himself from the consequences of his ill health. If that is

15 not something that can be done, and we may come back to pressing that upon

16 the Chamber, then we would invite you to exercise your powers to narrow

17 the issues in such a way that his time can be better focused and his

18 energy more properly expended on what's truly material to this case. And

19 he may find that doing that will conserve his energies.

20 Two matters before I close. The experts listed within the

21 Croatian sector are to cover really all indictments. Likewise with the

22 number of insiders. They're really for all indictments, but as I've

23 perhaps already hinted, it's very difficult to know precisely how many

24 insiders are likely to be available. It's difficult to know how many we

25 are likely, of the present ones we have in mind, we are likely to want to

Page 8626

1 call given that unfolding events may make better witnesses available who

2 will make it unnecessary to call those who are of less value.

3 The psychiatrist, I'm informed and should have had this in mind

4 myself, is partly a fact witness and deals with the widespread character

5 of sexual assaults in both Croatia and Bosnia, and that's, of course,

6 significant, very significant, in cases of this kind, and we'd ask you to,

7 in principle, admit such evidence.

8 I'm going to check with my colleagues to see if there's anything

9 else they want me to say.

10 I don't know if I can help further.

11 JUDGE MAY: Yes. Thank you.

12 Mr. Milosevic, you've heard what's been said. There are three

13 matters for you to address us on in particular. The first is the time

14 that you require for preparation. The second is the issue of an opening

15 statement, whether you want to apply to make one and whether it should be

16 limited in time. And the third is your medical condition and whether and

17 what impact it has on the trial. If you want to say anything about that,

18 of course, you can. As you know, we've had the medical report in front of

19 us.

20 Yes.

21 THE ACCUSED: [Interpretation] You started these deliberations by

22 referring to Rule 73 bis. What does Rule 73 bis mean? What's it all

23 about?

24 JUDGE MAY: It's about the Trial Chamber at a Pre-Trial Conference

25 fixing time limits and the like and numbers of witnesses on the

Page 8627

1 Prosecution. It's a Rule which relates specifically to the Prosecution.

2 I should point out there's another one which refers to the Defence, which

3 gives the Trial Chamber similar powers in relation to the Defence. But

4 we're only, at the moment, concerned with the Prosecution.

5 Now, that's really, as I've said before, really between the Trial

6 Chamber and the Prosecution.

7 THE ACCUSED: [Interpretation] All right. I wanted to know that

8 from the very outset, because it was my understanding, on the basis of

9 what you said and on the basis of what Mr. Nice said, the only question

10 here is the question of time. All issues pertain to time only.

11 Did I understand this properly?

12 JUDGE MAY: Well, you've heard what's been discussed. The Trial

13 Chamber is considering whether it should fix time limits on the

14 Prosecution or amend the time limit which has been fixed and whether it

15 should impose a limit on the number of witnesses.

16 As I say, that's strictly a matter for the Trial Chamber. It

17 doesn't really affect you. But what does affect you is the amount of time

18 you're asking for to prepare for the rest of the case. You've heard

19 what -- you've heard what the Prosecution says, that it will produce, and

20 we will have them produce this early next week, a list of 60 witnesses to

21 be taken between now and Christmas. On those you can concentrate. You

22 will have next week for preparation, so you will have a month, including

23 the recess, for preparation. There is also the matter of your medical

24 condition. Those are the matters which you should be addressing us about.

25 THE ACCUSED: [Interpretation] All right, Mr. May. I understand

Page 8628

1 what the questions are, but I would like to say first that it seems absurd

2 to claim -- for the Prosecutor to claim that they deserve credit for

3 shortening the time taken up through applying Rule 92 bis, through

4 accepting written statements made by witnesses. By doing this, more than

5 ever, you are practically making it possible for the other side to have

6 the possibility of serving here an unlimited quantity of their

7 fabrications and lies. And on the other hand, you are limiting the time

8 for contesting that. And all of this is considered to be a creditworthy

9 thing. I've already said that it seems that time is the only important

10 question here. If time is the only important issue, this is not any kind

11 of trial. It has nothing to do with justice, et cetera. So why are you

12 dabbling in all of this anyway?

13 You said to me in relation to this -- well actually, I'm not going

14 to ask you for nothing. I just want to present the facts here. Mr. Nice

15 explained here that he cannot deal with Bosnia and Croatia during the

16 cross-examination about Kosovo. I assume that the same thing applies to

17 me. I have received almost 90.000 pages for Bosnia and Croatia and about

18 500 cassettes. For 90.000 pages, a person needs 180.000 minutes to read

19 it only. So if I'm supposed to read, say, 500 minutes a day, I need 360

20 days to read this only once. And then I'm supposed to look at various

21 materials that I am to obtain from my associates with regard to the

22 contents of this.

23 So without doing anything else, without engaging in any other kind

24 of activity, that would be it. That is a fact that I wish to state

25 publicly here. And after all, you're going to deal with this the way

Page 8629

1 you've dealt with all other facts.

2 Secondly, the deadlines for discovery that are relevant here in

3 this institution. Thirty days. I was given the right to defend myself.

4 That is a right that you took note of and that is being shortened rather

5 than extended. Then those who have this as their profession, who do this

6 professionally and with a much smaller volume of work, they get 30 days. I

7 don't know about the friends of the Court. And I was given ten days

8 with the possibility of contacting only two associates who are my only

9 link for establishing any kind of communication. Every logic says that my

10 period would have to be longer rather than shorter.

11 What I said to you about 80 to 90.000 pages and 500 cassettes that

12 are out there and, of course, during these examinations I didn't have a

13 look at any of that, that is a job which certainly requires time, the time

14 I mentioned to you. That is quite clear. Although this entire matter is

15 a farce. It is retaliation, because it is amazing how --

16 JUDGE MAY: No. You are not going to abuse this trial in that

17 way. Now, if you've got relevant and sensible points to make, some of

18 them you have made, of course you can go on, but we're not listening to

19 abuse.

20 THE ACCUSED: [Interpretation] I don't know if I've been abusing

21 anything. There seems to be a rule here that is inversion. I think I'm

22 the one who is being abused here, not you or this trial, especially this

23 trial that you thought of ten years after the events in Croatia took

24 place. For ten years, it didn't occur to you --

25 JUDGE MAY: You are abusing your right to speak, which will get

Page 8630

1 you stopped.

2 Now, you had some sensible points to make. Now, you revert to

3 them.

4 THE ACCUSED: [Interpretation] All right, Mr. May. As for opening

5 statements, I think that you could have assumed what my answer would be.

6 I avail myself of every opportunity to speak here. You will decide as you

7 will decide, but make up your mind today. I don't want you to decide that

8 there will be no opening statements and then after that I listen to

9 tirades of Mrs. Del Ponte or Mr. Nice about Croatia and Bosnia and then

10 they say that that's not an opening statement or you say that subsequently

11 you changed your ruling. As it has happened here, you change your own

12 decisions in two or three days.

13 In relation to what I've just said to you about the materials that

14 were given to me and without any kind of rest, a person would need a year

15 to read that. A few minutes ago - I'm quoting you, Mr. May - you said

16 that the quantity of material should be such that it could be manageable.

17 That's what you said a minute ago. Of course, a manageable quantity.

18 That depends on the time unit for managing that quantity. With a paper,

19 you can deal with a paper, one paper, in three minutes. But 90.000 papers

20 will require, I assume, a different amount of time.

21 Therefore, I'm telling you once again that I am not asking you for

22 anything. I'm just pointing out facts to you and standpoints that you

23 have presented yourself.

24 As for my medical condition, I wish to remind you of the fact that

25 did not ask for any examination. When I was informed about your decision,

Page 8631

1 I said here that I have no objections to the prison doctor. I did not ask

2 for an examination, and you should not harbour any illusions that I'm

3 asking you for anything. You said then that that is what you ordered and

4 that that is your decision.

5 As a civilised man, when these people came to see me, of course I

6 allowed them to examine me and to have blood tests taken later, et

7 cetera. That is your affair. I never complained.

8 During these six months, I don't know how Mr. Nice has been

9 referring to four months. It's been six months. This is the end of July,

10 and we started in February. I never asked for an examination, a medical

11 examination. And even when I had high fever in prison, I told the prison

12 doctor that I am not asking for a break, and I'm not asking him for

13 anything, really.

14 So you're the ones who asked for this, and it is for you and it is

15 your affair.

16 JUDGE MAY: That may be, but you know what the report says about

17 your condition, your cardiovascular condition. You know, for instance,

18 that it recommends that your workload be reduced. Now, we have lost two

19 days due to your high blood pressure already. It's obviously a matter of

20 concern to the doctors, and therefore, it has to be a matter of concern to

21 the Trial Chamber.

22 If you want to -- we hear what you say about your position and

23 your attitude. If you want to say anything about the effect on the trial

24 and your participation in it, of course, you can do so, but it is

25 something which we will have to take account of.

Page 8632

1 JUDGE ROBINSON: Mr. Milosevic, before you comment on that, I'd

2 like to say something about your medical condition. Your health is a

3 matter of very great concern to me as a member of the Trial Chamber. The

4 doctors have recommended that you be given rest.

5 It is quite clear to me that the whole business of preparing for

6 cross-examination and cross-examination itself is extremely onerous, and

7 it has occurred to me that one obvious way in which you could have some

8 rest is if you were to appoint counsel.

9 Now, you have expressed your views before about appointing

10 counsel, but it may be that we could institute a system in which you would

11 share cross-examination with counsel. That would allow you some rest.

12 You're obviously very interested in cross-examining some witnesses, and

13 what I wanted to put to you was that the Trial Chamber might be prepared

14 to consider a system in which you appoint counsel, counsel would

15 cross-examine some witnesses, and you would also have the right to

16 cross-examine. It's a bit unusual, but I think it has happened in some

17 places.

18 The overriding concern for me is your health. Your health is of

19 paramount concern to the Chamber.

20 THE ACCUSED: [Interpretation] Mr. Robinson, first of all, I wish

21 to say to you that I am convinced that you are speaking with good

22 intentions. Therefore, please do not take this personally, because I

23 think that you are an honourable man.

24 I do not recognise this court, and I have no intention of

25 appointing counsel for a non-existent court. This court is exclusively a

Page 8633

1 means of retaliation against the resistance that is being offered to the

2 New World order that is enslaving your country inter alia and many other

3 countries around the world. And it didn't even crossed my mind to take

4 part in this farce in any other way, and the entire world can see what

5 kind of farce this is, except to speak the truth when you are giving me

6 the opportunity to speak. You give me the opportunity to say the truth

7 only during this cross-examination and I avail myself of that opportunity.

8 As for my health, I did not ask for any privileges, and I never

9 asked you during these six months to take a single break. The fact that

10 you ordered that I be examined and that you got a report is your problem

11 now. It's not my problem. But I would like to add one more thing.

12 Mr. Nice's explanation that the working hours are five hours is

13 ironical. I get up at 7.00 and then I work until 4.00 in the afternoon.

14 The breaks are not times of rest for me. The entire day is taken up and

15 you are taking into account only this court time and the time that we

16 spend here in these chairs.

17 You know under what conditions a person comes here and under what

18 conditions a person leaves and how long it takes. If you are not aware of

19 it, then try to find out what it is like and then let us hear these

20 stories about five hours of working time.

21 So, Mr. Robinson, I respect your concern and your attention, but

22 you are aware of this position of mine, and I believe that my answer is

23 sufficiently clear to you both in terms of this Court and in terms of

24 everything that has been happening here.

25 JUDGE ROBINSON: I have heard what you have said, Mr. Milosevic.

Page 8634

1 It seems inevitable then that the Trial Chamber will have to consider

2 measures that take account of your health, and that is something which

3 we'll have to attend to as a matter of urgency.

4 JUDGE MAY: Do the amici have anything to add?

5 MR. KAY: No. All relevant matters have been dealt with, Your

6 Honour.

7 JUDGE MAY: Thank you.

8 Mr. Nice, yes.

9 MR. NICE: One thing I should have covered earlier. My mistake

10 for not doing so. There are exercises being undertaken by those dealing

11 with both the Croatian and Bosnian indictments to review the exhibits in

12 order to see which exhibits can realistically be discarded as not

13 seriously expected to be required. Significant percentages of documents

14 are being identified as those that can be withdrawn at this stage, and we

15 will be in a position to notify all parties. I don't know exactly when

16 but comparatively soon. Either of the total number of the identification

17 exhibits that needn't be considered or if we have to do it in stages,

18 we'll do it in stages, but that exercise is very well under way and will

19 enable the accused and others to focus on documentation.

20 Can I just make two other points? One tiny technical matter in

21 relation to the Croatia/Bosnia part of the indictment. Documents, this

22 Chamber has, I think, in a previous case approached documents on the basis

23 that documents are dealt with as authentic unless challenged and,

24 therefore, time is not spent on the process of authentication in court.

25 We have more or less proceeded on that basis in the Kosovo sector. It

Page 8635

1 will always be helpful for us to know because it does save time if we

2 don't have to go through the process of authenticating documents, although

3 we can always do so and will always be in a position to do so.

4 And finally, I should have made it clear that although I'm hopeful

5 we could accomplish what's left in Kosovo in two weeks in September and

6 indeed to get all the Albanian-speaking witnesses into one week, which I

7 know is important for planning reasons within the Tribunal generally, we

8 would be grateful to be allowed at this stage for planning purposes the

9 third week in case we overrun or in case we are able to call Mr. Lilic in

10 that week.

11 JUDGE MAY: Mr. Nice, two matters. The accused talks of 90.000

12 pages and 500 cassettes. Is that right?

13 MR. NICE: I haven't, I'm afraid, done the sums. It looks as it

14 probably is correct.

15 JUDGE MAY: There seem to be nods all around.

16 MR. NICE: But of course by identifying individual witnesses, 40

17 or 50 witnesses, 60 witnesses for Christmas -- by Christmas, we'll also be

18 identifying either explicitly or implicitly, and I hope wherever possible

19 explicitly, the exhibits that will have to be focused on for those

20 particular witnesses, and I --

21 JUDGE MAY: The other matter is concerned with the Croatian

22 indictment, and there is a footnote in the pre-trial brief which refers to

23 the Prosecution not seeking to prove genocide in respect of the Bosnian

24 Croats. Now, I would like that to be confirmed if that is the case.

25 MR. NICE: Yes. I meant to flag the footnote myself. Can Your

Page 8636













13 Blank page inserted to ensure pagination corresponds between the French and

14 English transcripts












Page 8637

1 Honour just remind me of the number?

2 JUDGE MAY: 271 I'm told.

3 MR. NICE: Yes, Your Honour. That's the position and for the

4 reason set out in that footnote.

5 [Trial Chamber confers]

6 MR. NICE: It's page 271. I'm grateful to Mr. Wladimiroff, but

7 it's footnote 2076.

8 Your Honour, can I also make the obvious point, but for the record

9 I must make it, when the accused speaks of the focus on time, of course

10 the Prosecution has been and always is -- has been willing and sometimes

11 has been eager to take longer, to spend more time on this case. Its

12 willingness to condense matters and its focus on the saving of time is a

13 reflection of the more general interest that has been articulated on

14 several occasions by the Chamber, but it in no way suggests that we are

15 not willing to spend as much time as is proper for the proof of this case.

16 JUDGE ROBINSON: Mr. Nice, just going back to the question of the

17 documentation and the volume, the quantity, I believe the Prosecution can

18 and should do more by way of sifting and screening to ensure that what

19 comes before the Court is what is needed. It is true that the Chamber

20 does have a responsibility as well, but I believe that much more can be

21 done and should be done by the Prosecution by way of screening and

22 shifting.

23 When Mr. Milosevic speaks of the vast quantity of documents before

24 him that he has to read, I must say that I understand and I sympathise. I

25 would like you to accept and acknowledge that the Prosecution does have a

Page 8638

1 responsibility to impose a rigour on itself, a discipline on itself in

2 that regard.

3 MR. NICE: We certainly accept that, and that is why at present

4 the raw statistics would suggest that the reduction in the exhibit list

5 initially served is up to the order of 40 per cent we may be able to save

6 and thereafter we may be able to go further. So I think that Your Honour

7 will find that that rigour has, indeed, already been applied.

8 JUDGE MAY: What would be, I think, of assistance to everybody is

9 an indication of those exhibits which the Prosecution is likely to rely on

10 in the first period. So if we could have a list of the 54 witnesses plus

11 the exhibits.

12 MR. NICE: Yes, Your Honour. We can certainly do that and we

13 must.

14 JUDGE MAY: Yes. And if you can do that certainly bit middle of

15 next week.

16 MR. NICE: We'll do our best certainly.

17 JUDGE MAY: Thank you.

18 MR. NICE: Your Honour, there's one matter that touches Kosovo

19 only. Can I deal with that later? It's a particular issue of evidence in

20 relation to Kosovo.

21 JUDGE MAY: Yes. Well, we'll need to consider these matters.

22 We're going to take the adjournment now. We will then make an order

23 insofar as we can, and we will return and deal with other matters then.

24 Twenty minutes

25 --- Recess taken at 10.14 a.m.

Page 8639

1 --- On resuming at 10.40 a.m.


3 JUDGE MAY: Yes, Mr. Milosevic.

4 THE ACCUSED: [Interpretation] Well, since you gave the floor to

5 Mr. Nice after the amici, I believe I have the right to make a few more

6 remarks.

7 In connection with what you are considering and deliberating

8 about, I believe it would be logical for you also to review the answer to

9 the question: What is the purpose of providing material that nobody has

10 time to read? What occurs to me also is something that Mr. Kay said at

11 one point when we had a discussion about the scheduling length and joinder

12 of these various cases. Namely, he said that there was no human being

13 able of handling such a trial. Perhaps that is precisely what the

14 Prosecutor is guided by.

15 JUDGE MAY: Mr. Milosevic, we have heard your submissions on this

16 point, and we are now going to give our ruling. No, we're not going to

17 hear you further. You've already given your observations. The Prosecutor

18 had a right of reply because it was their motion that was being dealt

19 with. You do not have one.

20 We've considered what the Prosecution have said about this case

21 and the time that will be taken. We have, therefore, decided that we are

22 not going to make specific orders in relation to exclusion of evidence.

23 We don't think that would be right. However, we are unable to accede to

24 the suggestion that we should make no orders in relation to the number of

25 witnesses and the time that will be taken.

Page 8640

1 We think it right for all concerned in the trial that they know

2 the limitations of time and the numbers of witnesses which are available.

3 This is an order that a fair and manageable trial for all those

4 who are concerned in it can be held.

5 I have indicated earlier the way in which the mind of the Trial

6 Chamber was working towards a reduction of scope, and we are pleased to

7 see that the Prosecution are working in the same direction. We will allow

8 a further three weeks for the Kosovo part of the indictment. We will

9 instruct the Prosecution, by the 31st of July, to serve a witness list

10 until Christmas together with the relevant exhibits. That will allow the

11 accused to concentrate in the time which is available to him on the

12 relevant matter in order to prepare for the period between October, as it

13 will be, and Christmas.

14 We will give an extra two weeks after the close of the Kosovo case

15 for preparation for the period until Christmas. We note that a

16 substantial reduction will be made in the number of pages and the number

17 of exhibits. We welcome that and invite the Prosecution to cut the number

18 even further to the core documents, that is, the documents which are

19 really relevant to the trial.

20 So the accused, in the time which will be available for him for

21 preparation in August and September, a total of six weeks, should

22 concentrate on the case before Christmas. He will then have a further

23 period, of course, of the Christmas recess and any other appropriate time

24 to prepare for the rest of the case.

25 We have considered whether opening statements are necessary.

Page 8641

1 We've come to the conclusion that the fairest way of dealing with that

2 matter is to allow opening statements for up to three hours each. So that

3 will be three hours for the Prosecution, three hours for the accused.

4 The timetable will then be this: The Prosecutor will have until

5 the 13th of September on the Kosovo case, two weeks' preparation in which

6 the court will not sit. The Prosecution will begin on the 30th of

7 September.

8 We have considered the number of witnesses and the time which

9 should be available. We have indicated, as I have said, the way in which

10 our mind is working. We have come to the conclusion that there should be

11 a total of 106 witnesses, live witnesses, this is, in relation to Bosnia,

12 71 in relation to the Croatian indictment, a total of 177 live witnesses.

13 Given the time which is available and the rate at which the case

14 has been going, we've come to the conclusion that this evidence should be

15 heard by the 16th of May, 2003, and we will order, under 73 bis (E), that

16 that should be the time available to the Prosecution for presenting

17 evidence. And under 73 bis (C), we fix the number of witnesses at 177

18 live witnesses.

19 There will, of course, be, where appropriate, the opportunity to

20 put forward witnesses under Rule 92 bis.

21 If the circumstances alter during the trial, the Prosecution may

22 apply under the Rule for variation of this order. However, such variation

23 will only be made for good cause.

24 I turn next to the medical condition of the accused. We have

25 received a report, a medical report, which in its conclusion describes the

Page 8642

1 accused as a man with severe cardiovascular risk which demand careful

2 future monitoring. The authors recommend that his workload be reduced and

3 that additional medical treatment by a cardiologist is most visible.

4 The Trial Chamber considers that the accused should have such

5 cardiological treatment. When the cardiologist reports, the Trial Chamber

6 will consider what course of action to take, including the consideration

7 of any option which may be available for the future conduct of the trial.

8 Mr. Nice, there was a matter about the Kosovo part that you wanted

9 to raise. Is this a convenient moment or would it be better to deal with

10 it later.

11 MR. NICE: I'd be quite happy to deal with it now. Can I make one

12 point about the orders Your Honours made. I made the undertaking to

13 provide both the witness list and exhibits without fully consulting with

14 my colleagues. I gather that there will be difficulties in providing all

15 the exhibits -- in fact, impossibility the way of providing all the

16 exhibits by the 31st of July. We will get the list by then. May we

17 please have leave to provide the exhibits as quickly as we can or identify

18 the exhibits as quickly as we can and as soon as we have numbers of them

19 available. I hope it won't be necessarily actually to serve them again

20 because the accused has got them all. Would It simply be sufficient to

21 identify where they may be found?

22 JUDGE MAY: Yes. Provided that it can be done in a fairly simple

23 way. It may be appropriate to do it in stages as the various decisions

24 are made.

25 MR. NICE: Thank you. The issue in relation -- thank you for

Page 8643

1 that. The issue in relation to Kosovo is an entirely discrete issue. I've

2 got my papers. It's to do with the trucks of bodies or the truck of

3 bodies that's been found, and it's -- the issue is whether the Chamber is

4 alive to the fact that there is evidence before it already constituting

5 expert evidence going to show that at least in respect of two of the

6 bodies located in one of the mass graves in Batajnica there is DNA

7 evidence linking those bodies with bodies from Kosovo or with families

8 from Kosovo.

9 I don't know if the Chamber would find it helpful to review the

10 matter. Possibly with the accused at a later stage this week, if

11 necessary. The evidence has gone in through the Witness Billy Fulton, and

12 he's produced an expert report. At the moment we're not intending to

13 produce an expert to go through the sometimes time-consuming exercise that

14 DNA experts have to devote to such issues when they give them in

15 conventional trials, give evidence in conventional trials.

16 There are going to be further reports of a like kind that can be

17 produced in relation to DNA analysis of bodies found in those graves

18 linking them to families in Kosovo. And obviously that becomes

19 particularly important when in relation to the truck found in the river

20 the accused seemed to be cross-examining on the basis that such bodies may

21 have simply been the bodies of people who were involved in the unhappy

22 trade of smuggling individuals from country to country.

23 He's not represented, therefore, I can't go and ask him whether

24 he's accepting the DNA findings in the expert reports. And if the

25 Chamber's in a position to check on its understanding of the evidence and

Page 8644

1 if necessary to raise the issue with him, then we will be guided as to

2 whether we need to call a DNA expert, as we easily enough can, at the

3 consumption of some time in September.

4 JUDGE MAY: Well, we'll review that. If the evidence is there,

5 and I recollect Mr. Fulton's evidence, then it's part of the evidence in

6 the case and I would have thought that was sufficient.

7 MR. NICE: Yes. Of course it hasn't been challenged by the

8 accused and I'm being sensitive to the fact that he's not represented.

9 JUDGE MAY: I think you can't expect with a litigant in person

10 that he is going to challenge evidence in the way that you would expect

11 from a professional aptitude.

12 MR. NICE: I'm not remotely complaining about that. I'm really

13 much more concerned that he should understand what the evidence

14 constitutes at present. That's all, Your Honour.

15 JUDGE MAY: Yes. The next part of the hearing will be in closed

16 session.

17 Yes.

18 THE ACCUSED: [Interpretation] Just one clarification. I'm happy

19 to hear you decided that at least for those three hours I can get the

20 floor. You said both parties, the other side and I, but I would like to

21 clarify one thing. At the beginning, in the month of February, I spoke

22 after the opposite side and emphasised that it was not my opening

23 statement, that it was just a statement, and that I will make my opening

24 statement when the full Prosecution case is over.

25 So I would like you to consider these three hours, too, just as a

Page 8645

1 statement of mine, not my opening statement which I reserve for the end of

2 the Prosecution case, the entire Prosecution case. I hope that I have

3 made myself clear.

4 JUDGE MAY: Yes. You will have the opportunity when you open your

5 defence to make a further statement.

6 THE ACCUSED: [Interpretation] So that's about the opening

7 statement. As for the other issue raised here, from what Mr. Nice said a

8 moment ago, I see no proof that this DNA analysis is indeed the DNA

9 analysis of the people found in the Danube, because as you have heard, the

10 bodies from the refrigerator lorry found in the Danube have not been found

11 yet, and it may be analysis of completely different bodies. So I

12 challenge absolutely what he said.

13 JUDGE MAY: We're not going to go into the evidence now. We will

14 consider all the evidence in due course, but we're not going to argue

15 about it now. Now, we're going to go into closed -- we're going into

16 closed session.

17 THE ACCUSED: [Interpretation] Just one more thing, please,

18 Mr. May. One more very technical issue but very important, essential, in

19 fact. I kindly ask you again to issue an order for these materials. As

20 you can see, they are in enormous quantities, that they provided to me in

21 the Serbian language, because a great part of the material that I have

22 received so far has been submitted only in English. Even the pre-trial

23 brief, which is 350 pages long, has been served to me only in English,

24 which is inadmissible.

25 JUDGE MAY: We'll make enquiries about that.

Page 8646

1 Now we're going into closed session. We'll rise for five minutes.

2 --- Recess taken at 10.58 a.m.

3 --- On resuming at 11.09 a.m.

4 [Closed session]

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 8647












12 Pages 8647 to 8680 – redacted –closed session.












24 --- Whereupon the Pre-Trial Conference adjourned at

25 12.16 p.m. To be followed by the hearing.

page 8681