International Criminal Tribunal for the Former Yugoslavia

Page 8468

1 Monday, 23 September 2002

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.33 p.m.

6 JUDGE SCHOMBURG: As to the fact that we start a Status

7 Conference, may we hear the case, please.

8 THE REGISTRAR: Good afternoon. This is case number IT-97-24-T,

9 the Prosecutor versus Milomir Stakic.

10 JUDGE SCHOMBURG: And the appearances, please.

11 MS. KORNER: Your Honour, Joanna Korner, Andrew Cayley, and

12 Nicholas Koumjian, assisted by Ruth Karper, case manager, on behalf of the

13 Prosecution.

14 MR. OSTOJIC: Good afternoon, Your Honour. John Ostojic on behalf

15 of the accused Dr. Milomir Stakic.

16 JUDGE SCHOMBURG: Thank you. And as agreed by the parties, Judge

17 Vassylenko participates as well in this Status Conference.

18 You have a provisional agenda for this Status Conference. May I

19 ask whether or not there are any additional remarks to be made?

20 MS. KORNER: Your Honour, I think the only thing I'd ask is

21 whether Your Honour would agree to hear me on the deliberations aspect,

22 which won't take very long, before dealing with, if I may put it, the nuts

23 and bolts of the other matters.

24 JUDGE SCHOMBURG: Yes.

25 MS. KORNER: Mr. Cayley is here to deal with the first matter,

Page 8469

1 clearly, and then after that, if I could be heard, I'd be grateful.

2 JUDGE SCHOMBURG: Yes. Thanks.

3 I heard rumours that it was not quite clear from the rulings of

4 this morning how to proceed for tomorrow. Is it correct that the OTP will

5 start immediately with Witness B?

6 MR. CAYLEY: Yes, Your Honour.

7 JUDGE SCHOMBURG: And then the ruling is that there are no doubts

8 at all that we start in closed session, having the two persons in the

9 courtroom. They are regarded as amici curiae. And then, as it was said,

10 no doubt we'll hear the submissions of the parties and the amici curiae

11 and only the final arbiter on the final rulings will be made by the

12 Judges, no doubt.

13 MR. CAYLEY: That is all accepted by us. Could we go into private

14 session for one moment, Your Honour, to discuss this?

15 JUDGE SCHOMBURG: Please. Please. I can't see any objections.

16 MR. OSTOJIC: Well, I don't ever have an objection to going into

17 private session. I'd just like to address the point, if I may --

18 JUDGE SCHOMBURG: Let's do it in private session, please.

19 [Private session]

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 8470

1

2

3

4

5

6

7

8

9

10

11

12 Page 8470 redacted private session.

13

14

15

16

17

18

19

20

21

22

23

24

25

Page 8471

1

2

3

4

5

6

7

8

9

10

11

12 Page 8471 redacted private session.

13

14

15

16

17

18

19

20

21

22

23

24

25

Page 8472

1

2

3

4

5

6

7

8

9

10

11

12 Page 8472 redacted private session.

13

14

15

16

17

18

19

20

21

22

23

24

25

Page 8473

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 [Open session]

12 JUDGE SCHOMBURG: Sorry for this. Please proceed.

13 MS. KORNER: Your Honour, may I repeat: It's not so much an

14 objection to the procedure that Your Honour has called deliberations save

15 in one or two respects, but a submission to Your Honour that it would be,

16 we would suggest, more efficient if one stuck to what is envisioned by

17 the Rules, and can I explain why. If I read the remarks that Your Honour

18 made, firstly on the 2nd of September, and then again returning to it on

19 the 9th of September, as I understand Your Honour's suggestion, it is that

20 there should be, in open court, a procedure called deliberations, in which

21 before the Rule -- the submissions by the Defence under Rule 98, if any,

22 are made, there should be, as it were, a discussion about the factual

23 aspects and the legal aspects which have emerged throughout the

24 Prosecution's case.

25 Your Honour, one of the reasons, we would submit, and it's very

Page 8474

1 much the same, I think, in most jurisdictions where we have this type of

2 procedure, that Rule 98 exists, is so that at the end of the Prosecution's

3 case, the Defence make such submissions as they see fit on the sufficiency

4 of the Prosecution's evidence on one or more of the counts, because if one

5 looks at Rule 98 bis, it is properly, motion for judgement of acquittal,

6 an accused may file a motion, and I emphasise "may," for the entry of

7 judgement of acquittal on one or more offences charged in the indictment.

8 Your Honour, the onus is there placed by the Rules on the Defence,

9 in the absence of any such submission, the Prosecution case rests and it

10 is then for the Defence to decide whether or not to make such

11 submissions. And the Prosecution is then given, I believe it's 14 days,

12 to respond. It is our submission that if Your Honour wishes to hold an,

13 as it were, an oral discussion on the matter, then it would be preferable

14 to do so once the Defence has reduced its submissions into writing and the

15 Prosecution has responded. Although I'm very much of Your Honour's mind

16 that oral submissions are any day preferable to the habit of these lengthy

17 motions. There are some occasions, and I think Your Honour has felt that,

18 where it is preferable to have them in writing. It concentrates the

19 party's mind and it makes it possible to see very clearly where the issues

20 lie.

21 Your Honour, so my submission -- our submission to Your Honour is

22 that Your Honour should wait for the written submissions by the Defence

23 and any response made by the Prosecution.

24 Your Honour, may I say straight away, however, there will be one

25 exception to this. We take very much Your Honour's point that where the

Page 8475

1 Prosecution, at the end of its case, feels that it has not brought

2 sufficient evidence to prove either a certain charge or a certain factual

3 allegation made within that charge, then we will let the Court and the

4 Defence know that by the close of our case. We think that is only fair

5 and right and proper.

6 So, Your Honour, that is the suggestion that we would make to Your

7 Honour, that any oral discussion of the legal aspects or the factual

8 aspects, other than that the Prosecution have decided they cannot

9 support, should wait until after the written Rule 98 submission by the

10 Defence and the response to be given by the Prosecution.

11 Your Honour, that's really the first matter that I want to raise.

12 JUDGE SCHOMBURG: May I just ask: When you state "by the close of

13 our case," would that mean by the beginning of next week --

14 MS. KORNER: Yes, it would.

15 JUDGE SCHOMBURG: -- or after the submissions by the parties.

16 MS. KORNER: No, Your Honour. We are prepared, we think it's only

17 right and properly. We have a pretty fair idea. There is one particular

18 aspect of this case which, in the light of our withdrawal of the Rule 94

19 motion, we cannot uphold. And Your Honour, we will close the Prosecution

20 case, we anticipate, on Friday, and we will notify the Defence on Monday,

21 and Your Honours, of course, of those aspects of this case that we don't

22 seek to take any further.

23 JUDGE SCHOMBURG: I think this is already extremely helpful for

24 all the parties. Okay. But please proceed.

25 MS. KORNER: Your Honour, that's the first submission that I make.

Page 8476

1 Your Honour, the second submission is the one that Your Honour

2 referred to, which relates to the modes of liability under 7(1). And as I

3 understood what Your Honour was saying on the 2nd of October, and it's

4 page 72 -- I'm sorry, October - on the 2nd of September, and it's on page

5 7204 of the transcript. We would not be allowed to carry past the end of

6 our case what you call the parallel allegations that Dr. Stakic ordered,

7 incited, committed, aided, and abetted an offence. Your Honour has raised

8 this topic before, and I want to return to it.

9 Your Honour, we would submit this: That to make the Prosecution

10 elect a specific mode of liability at the close of the Prosecution case

11 and before the Defence have put on its case is a matter which is fraught

12 with some risk. Your Honour, the obvious one is this, and it's -- I know

13 in jurisdictions where one has this type of pleading, this is often the

14 situation: That supposing we were to say, for example, our case against

15 Dr. Stakic is that he ordered - I'm just taking that as an example,

16 without saying that is our case - Your Honour, it would then be open to

17 the Defence to put on evidence to show that he didn't order but that he

18 aided and abetted. Your Honour, at that stage, that would no longer be

19 part of the Prosecution case, and Your Honours would therefore be unable,

20 even if there was clear and unambiguous evidence, in fact broadest part of

21 the Defence case, because it was no longer a matter on which Your Honours

22 could convict this accused. Your Honour, in our submission, that would be

23 a travesty of the situation and it's not a situation that's unknown.

24 If one takes the very simple example of -- I don't know whether

25 it's the same in Your Honour's jurisdiction, but in the Anglo-saxon ones,

Page 8477

1 one can charge a person with stealing goods and alternatively with

2 receiving the goods, knowing them to be stolen. And practice and

3 experience has taught the courts that if the Prosecution is

4 made to say at the end of its case, "Well, actually, we say that the

5 evidence shows more that he was a handler than a thief," it's not been

6 unknown for the accused person to go into the witness box and say, "I'm

7 very sorry, but I was actually the thief," and that leaves the jury in

8 such jurisdictions unable to convict. And Your Honours hear there's clear

9 authority to show that because you, the Judges, are not only the arbiters

10 of the law but the finders of fact, that whatever the Prosecution say Your

11 Honours may find, from your reading of the evidence, that the accused is

12 guilty of the offence as charged, but on a basis different from that

13 suggested by the Prosecution.

14 Your Honour, I'm not saying that I've said all along that we

15 should not, for Your Honour's benefit at the end of the day, make it clear

16 what our case is, but we would submit again that simply at the close of

17 the Prosecution case, to be forced to say, "Our case on Dr. Stakic is that

18 he ordered these offences" would be to create an unacceptable risk of Your

19 Honours not being able to find, as a fact, that he was guilty on some

20 other basis. And so, Your Honours, we would ask that Your Honours

21 reconsider that part of Your Honour's ruling in respect of that.

22 Your Honour, that's the second aspect.

23 For the third aspect, may I ask to go into private session.

24 [Private session]

25 (redacted)

Page 8478

1

2

3

4

5

6

7

8

9

10

11

12 Page 8478 redacted private session.

13

14

15

16

17

18

19

20

21

22

23

24

25

Page 8479

1

2

3

4

5

6

7

8

9

10

11

12 Page 8479 redacted private session.

13

14

15

16

17

18

19

20

21

22

23

24

25

Page 8480

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

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 [Open session]

21 JUDGE SCHOMBURG: It is confirmed, so first number 1.

22 MR. OSTOJIC: With respect, I'd like to take it in reverse order,

23 if I may. But in reverse order, with respect to the modes of liability

24 that the OTP has referenced, and your comments on the 2nd of September

25 specifically, I think that the Court knows and the Honourable Judges know

Page 8481

1 that the example given by Ms. Korner is not even close to being analogous

2 to what the Court has suggested we do, nor to what we should do in trying

3 to narrow the focus in the case here. The example given really is one of

4 lesser offences incorporated within to a larger crime. In this case what

5 the OTP is doing, respectfully, is taking alternative, parallel theories

6 and hoping that something will respectfully stick to the wall. They've

7 thrown everything possible under the Rules to accuse Dr. Stakic of and

8 have now said, "Well, let someone else make a decision on that." I

9 disagree with them that they should be permitted, and it's not the way to

10 go. I think that the OTP, having had approximately six to seven years to

11 formulate their case, having put forth test cases, if I can call them

12 that, respectfully, in other chambers, understanding the witnesses and

13 recalling numerous witnesses several times, should have an appreciation as

14 to what exactly the charges are against Dr. Stakic, both the theory, the

15 law, as well as the factual backdrop supporting those two. It's

16 inconceivable that they can't tell us now what that is they believe is the

17 exact charge other than to give us a complete litany of all possible

18 charges. We look forward to their discussion on Monday with respect to

19 the charges or issues that they think they're going to withdraw, and we

20 can say wholeheartedly that we appreciate that and thank them in advance

21 in connection with that. However, it remains that we would like to see,

22 and we think, under the Rules, the OTP should decide what is their theory,

23 either 7(1) or 7(3), and within each of those two, what, in their opinion,

24 based on the facts that they've brought forth, can or cannot be

25 supported. We do not believe our request is overbroad or overbearing for

Page 8482

1 the OTP, in light of my earlier comments that they've brought some of

2 these witnesses as we have seen on more than one or three occasions.

3 That would be the end of my comments with respect to this mode of

4 liability addressed by the OTP.

5 With respect to generally the issue of deliberations, my comments

6 are that I think 98 bis, in my opinion, was placed there as a safety

7 mechanism to ensure that the OTP would be challenged on various issues and

8 not proceed with a catchall theory of criminal liability against any

9 accused. However, I think it's their obligation as well, as they have

10 said in the past, having an objective view of things, to present facts and

11 evidence as they see it and to make an application to those facts.

12 When it comes to the issue of deliberation, as the Court has from

13 time to time shared with us views on issues such as foreseeability, for

14 example, I think it's important for both at that time, although silently I

15 objected to it, that the OTP would be able to present evidence to perhaps

16 clarify that issue or to concretely prove that issue. Thankfully, they

17 haven't, but it is specifically those types of things that deliberations

18 would possibly help both parties in determining what areas of focus should

19 be concentrated on.

20 We think, if we proceed in the manner suggested by the OTP, to

21 have this deliberation phase at the conclusion of both the 98 bis motion

22 and the response thereto, that merely what the OTP is asking for is to

23 have an oral argument and an oral discussion before the decision on the 98

24 bis is reached. We can agree to have oral presentations following our 98

25 bis motion. I understood the Court's request for deliberations was to

Page 8483

1 precede the 98 bis so that it can be more economically feasible and

2 efficient that both parties would preserve some of their resources for

3 items that would be more important. And I propose that we do have a

4 limited discussion, if you will, on this issue of deliberations to

5 highlight perhaps some of the issues after the OTP has, with all due

6 respect, modified their indictment, so that we can focus on the issues

7 that the Court deems necessary and important.

8 Thank you, Your Honour.

9 One other point, if I may, because we went immediately into

10 private session, unrelated to this second issue of deliberations. The

11 Defence does have two other issues we'd like to add to the agenda, so if

12 we may be heard in a timely fashion in connection with that, we'd

13 appreciate it. Thank you.

14 MS. KORNER: Your Honour, I just want to make it absolutely clear,

15 we're not asking for any oral discussions at all. We're content with the

16 written motions. But if Your Honours felt after the written motions that

17 it would assist, that's the suggestion we were making. But we are not

18 asking for oral discussions at all.

19 JUDGE SCHOMBURG: Thank you once again for clarification from both

20 sides. Indeed, the deliberations as such are nowhere explicitly foreseen

21 in the Rules, but I think there shouldn't be any dispute that we have the

22 obligation to be effective and expeditious as possible.

23 So the first point is indeed to limit the 98 bis motion, to limit

24 the response, and to limit the decision by the Chamber on that what is

25 really at stake, where we have identified problems and where it's

Page 8484

1 necessary to go into details. I fully agree that on especially some legal

2 points, it is more helpful and it can indeed be more effective if it's

3 done in writing.

4 But as regards the facts, I think it can indeed be helpful, and

5 I'm grateful for the message from the Prosecution that we will receive by

6 Monday a motion or in what form whatsoever indicating where the

7 Prosecution no longer insists or regards it not necessary for what

8 purposes whatsoever to include some facts. Also in the future we have now

9 in the fourth amended indictment. This indeed will already be helpful,

10 and I think in return the same could be done by the Defence by stating,

11 orally or in writing, for example - and I've got the impression, please

12 correct me if I'm wrong - that the Defence does not contest that some

13 crimes have not been committed, but the link and the responsibility

14 between these crimes and Dr. Stakic has not been established. I think

15 this is the core issue of this case, and therefore it would be extremely

16 helpful that in the framework of this motion, response, and discussion, we

17 would not have to address all of these points. So if from both sides we

18 can, on this basis of first contributions in writing, limit already the

19 factual scope of the application of this fourth amended indictment in

20 future, this would be helpful.

21 And why deliberations? Please recall that in one case, the

22 Kupreskic case, the Office of the Prosecutor appealed against a decision,

23 what also is possible under Rule 98 bis, that the Trial Chamber may

24 proprio motu or - from my Latin education - ex officio comes to its

25 conclusion and comes on acquittal, and at that time, in Kupreskic, the

Page 8485

1 Appeals Chamber regarded -- and the OTP, regarded it as an omission and an

2 infringement of the right to be heard that those parts were not discussed

3 beforehand, and the OTP has had no right to discuss these issues, and more

4 or less those parts in the acquittal not based on a motion by the Defence.

5 Also this may happen, came more or less out of the blue. And I think

6 that's a fair point, and therefore it's necessary that on some points also

7 the Trial Chamber may indicate that there might be a problem. This might

8 be a problem is related to a tradition you have in several jurisdictions

9 what we would call - it's extremely difficult to translate it into

10 English - the tradition or the obligation to give judicial hints if the

11 Chamber, ex officio, comes to the conclusion that there might be an

12 obstacle, then it's an obligation to tell the parties that there might be

13 a deviation from the amended indictment or that there might be a deviation

14 from what that seems to be already settled jurisprudence of this Tribunal

15 by the way of distinguishing coming to a different solution. We did say

16 this in the past on several occasions. It's on law and it's on facts.

17 The last hints I think we gave as regards the Room 7 massacre and the

18 Mount Vlasic massacre. We gave the hint to the Prosecution saying that it

19 does not go without saying that this is in the scope of the

20 foreseeability, and we gave this hint to the Defence that the Defence may

21 not rely on earlier decisions that the outcome would be the same. So

22 therefore, these issues have to be discussed and we have to go in some

23 details in order to grant the right to be heard to the Defence -- to the

24 Defence and to the Prosecution. First of all to the Prosecution, because

25 indeed it might be that the one or other factual point or legal point may

Page 8486

1 be excluded by the way of acquittal in part, ex officio, by the Chamber.

2 I have to recall that we have, on request of this Chamber, I

3 recall very well, an annex to the fourth amended indictment, stating the

4 names of known victims. Here we should be quite clear, as it was done in

5 the 98 bis decision in Sikirica, that some of the names maybe have to be

6 redacted from this list for future, and in return, as an outcome of such

7 what we have heard here through the last months, that some names may be

8 added. In return, that on request of the Chamber, some names may be added.

9 Therefore, I think as regards the facts, I have given reason

10 enough to indicate why it's not only necessary but even mandatory to

11 discuss this in open court, and I think there is nothing to hide and this

12 part can be done, I think, without any problem in public session. So

13 therefore, I think it's extremely helpful that we have it first of all in

14 writing what we can already exclude now, from your point of view, and that

15 we have it in writing what should be never discussed in the future because

16 it's no longer contested.

17 I recall very well that in the beginning we even didn't dare to

18 use the word "takeover," which has been now a notion for all the

19 participants in this case, and I think on this avenue we have to proceed.

20 It is a continued obligation of the Chamber to come to agreed facts, and

21 now I think the time is indeed ripe that we make a clear distinction which

22 is what is contested and what is not contested, what is still upheld in

23 the fourth amended indictment and what not.

24 I'm aware that the problems, the legal problems, are far more

25 difficult, but I think this is a question of the jurisprudence of this

Page 8487

1

2

3

4

5

6

7

8

9

10

11

12 Blank pages inserted to ensure pagination corresponds between the French and

13 English transcripts. Pages 8487 to 8491.

14

15

16

17

18

19

20

21

22

23

24

25

Page 8492

1 Tribunal as it stands right now, being aware that also the Appeals Chamber

2 is discussing this issue in depth, the issue of parallel cumulative

3 charges and convictions in the future. Until now, there seems to be

4 nothing in writing already, but from the point of view of a fair trial, I

5 think it's not possible that the Defence has to prepare a case

6 simultaneously facing charges of planning, instigating, ordering,

7 committing, or otherwise aiding and abetting.

8 I think by the way of excluding that what no longer will be

9 possible, we come closer to that what you are envisaging. No doubt, I

10 think it's also part of the jurisprudence of this Tribunal, the so-called

11 theory of the included lesser offence. So in case, for example, that - I

12 take it really out of the blue - you restrict yourself to commit or

13 otherwise aid and abet, this would exclude the other alternatives, and by

14 doing so, limiting the Defence with their obligation to prepare also a

15 defence against planning, instigating, and ordering. But it's no doubt

16 for the Prosecution to decide whether or not they believe that there is

17 evidence enough for a planning, for an instigation, or for an order.

18 It might be - and take it under the headline giving judicial hints - that

19 the Trial Chamber could, ex officio, come to the conclusion that there is

20 no evidence for, say, Dr. Stakic having instigated one crime. We didn't

21 discuss this issue on these alternatives, but I think it would be helpful

22 to at least to tell the Defence and, by doing so, the Chamber, what is the

23 highest possibility in what you take into account as a possible -- as a

24 possibility where you believe that a reasonable trier of fact could come

25 to this conclusion. And in this context, I want once again to

Page 8493

1 re-emphasise, as we stated earlier, that this Trial Chamber may see some

2 leeway to come to the conclusion that the test is not whether or not a

3 reasonable trier of fact comes to -- can come to the conclusion or whether

4 or not this Trial Chamber could come to the conclusion, for the reasons

5 given in the concurring opinion by Judge Pocar in the Kupreskic decision.

6 MS. KORNER: I'm sorry, is Your Honour talking about the Jelisic?

7 JUDGE SCHOMBURG: Sorry.

8 MS. KORNER: I thought you were, but I just wanted to check.

9 JUDGE SCHOMBURG: Just for the clarification, where Judge Pocar

10 indicated why it's necessary in this system where we don't have any jury,

11 that it doesn't make much sense to proceed when the Judges mandated to

12 hear a concrete case come to the conclusion that they cannot come to this

13 conclusion, as wanted by the OTP.

14 This would be the first point of my concern, to limit these

15 alternatives.

16 In addition, it would be, and it could be, indeed helpful to

17 indicate whether or not the Prosecution regards this case, from their

18 point of view, as a 7(1) or as a 7(3) case. If, from their point of view,

19 the case is already ripe for a clarification on these two alternatives, if

20 you want to call it, an alternative. In my country, it wouldn't be an

21 alternative.

22 So doing this would bring us closer once again to the real legal

23 issues at stake, and I think when discussing already the theory of the

24 lesser included offence, I think one major point is, and I think indeed

25 this has to be done in writing, if not the Prosecution comes to the

Page 8494

1 conclusion that they don't want to proceed with the charge of genocide.

2 But if so, it seems to be necessary, bearing all the decisions, all the

3 earlier decisions on genocide, and explicitly on the famous word "intent,"

4 the intent being discussed, contested, I think since 1948, and never

5 anybody came to the final decision, this is one of the core issues. But,

6 at the same time, only we didn't discuss this and we didn't come to the

7 conclusions during our discussions that it would be necessary to give a

8 judicial hint but only to show what this theory of lesser included

9 offence. Both parties may be aware that there is also something called

10 attempt of genocide. It is included, and it is, in theory, the lesser

11 included offence when we have the charge of genocide.

12 And then, of course, it's also important whether or not the charge

13 remains alternatively genocide or complicity in genocide.

14 So to conclude this part, I think it's not only helpful; it's also

15 aiming at really enabling the Defence to build up their case, if there is

16 any case, to be more concrete and then not only limiting but concentrating

17 on the remaining charges, because otherwise indeed one could say:

18 Please- and I apologise for this overstatement - you can read all the

19 possible charges in our statute and then please decide and find out

20 yourselves what has to be the case of the Defence.

21 But let us now go for a moment into private session.

22 [Private session]

23 (redacted)

24 (redacted)

25 (redacted)

Page 8495

1

2

3

4

5

6

7

8

9

10

11

12 Page 8495 redacted private session.

13

14

15

16

17

18

19

20

21

22

23

24

25

Page 8496

1

2

3

4

5

6

7

8

9

10

11

12 Page 8496 redacted private session.

13

14

15

16

17

18

19

20

21

22

23

24

25

Page 8497

1

2

3

4

5

6

7

8

9

10

11

12 Page 8497 redacted private session.

13

14

15

16

17

18

19

20

21

22

23

24

25

Page 8498

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 [Open session]

17 JUDGE SCHOMBURG: Then let's proceed this way: That we, by

18 Monday, expect a submission by the Prosecution, and therefore I think it's

19 not helpful to have this deliberation on Monday already. Let's first

20 digest this submission. But in return, I would regard it as at the same

21 time fair if the Defence at the same point in time could come also with a

22 submission on what is or might be no longer contested, especially the

23 question as I mentioned, starting from takeover until those points like

24 this or that crime happened. We do not -- you haven't to say this crime

25 happened or not, but for the purposes of this case, we no longer or we

Page 8499

1 don't contest that this crime happened. Indeed, a submission in return

2 would follow the lines of our good old Latin friends, stating the

3 principle of do et es [phoen], give and take, and therefore I think it's

4 best to expect submissions by both parties on Monday and then start with

5 deliberations on Tuesday. As I mentioned, it's mandatory to give you the

6 one or other hint, not to infringe both parties' right to be heard. Can

7 we agree?

8 MS. KORNER: Your Honour, we have no objection to that. Can I

9 say -- I don't want to sound too casual about it, but I wouldn't get too

10 carried away with the impression that we're going to be dropping huge

11 chunks of our case. We have, I think, in mind a few, and I stress "a

12 few," factual matters that we accept now that we have not established.

13 JUDGE SCHOMBURG: But indeed, it would be helpful if you, for

14 example, as regards names or as regards certain buildings, this would

15 already be extremely helpful.

16 MS. KORNER: Your Honour, that's exactly what we have in mind.

17 JUDGE SCHOMBURG: But not to forget that it might be helpful for

18 the Prosecution also to address judicial issues, otherwise they risk that

19 the Chamber overlooks the one or other problem and come to wrong

20 conclusions. And as I pointed out, if there is no such submission by the

21 OTP, the Trial Chamber may feel obliged to restrict ex officio the charges

22 to where it is possible where we may come to the conclusion that you have

23 established the case, as I mentioned, inciting, ordering --

24 MS. KORNER: I'm sorry. That we simply can't address by Monday.

25 That's what we've been saying all along. We're perfectly prepared, and we

Page 8500

1 can do, give the list of buildings, of places, of people, but, Your

2 Honour, the issues Your Honours have raised are so complicated that we

3 couldn't even remotely begin to deal with that by Monday. Your Honour,

4 that's why we suggested -- I take Your Honour's point that certainly what

5 you call judicial hints, but Your Honour, why we've made the suggestion

6 that it would be preferable for there to be the written motion by the

7 Defence and our response is just for that very reason. These matters may

8 require research, probably will, will require us to look at the various

9 authorities, particularly Jelisic, and this case is continuing factually

10 until Friday. So, Your Honour, and regrettably, I shall be engaged in the

11 other case this week. So, Your Honours, that we couldn't do by Monday,

12 which is, we can certainly look at the points that Your Honour has raised

13 which are troubling Your Honour over the weekend, but actually full

14 argument, no.

15 JUDGE SCHOMBURG: This would be helpful, and maybe these points

16 can be addressed during the deliberations. There we would have to play to

17 a certain extent with open cards, and yes, saying we have problems here,

18 we have problems there.

19 MS. KORNER: And if Your Honour would then say, and that I think

20 we would all be grateful for, after such discussion, Your Honour's final

21 rulings will await the Rule 98 submissions and the response.

22 JUDGE SCHOMBURG: No doubt, because I think this goes parallel, 98

23 bis motion and the decision whether or not the Trial Chamber comes to the

24 conclusion that we have to decide one or other step further under 98 bis

25 ex officio. This is no doubt. So therefore, I think for the purposes of

Page 8501

1 the registry already today, the hearing on Monday can be -- I'm hesitant.

2 Nobody knows what about health problems. But we envisage not to have a

3 hearing on Monday. Let's put it this way. But in any event, on Tuesday.

4 I hope that all the participants are available on Tuesday and we can go in

5 details of this deliberations.

6 Thank you for these remarks. It's limited time. Maybe it's

7 necessary to have another Status Conference tomorrow, and this would

8 facilitate also some problems we have in this Chamber. I think the

9 absolute priority has now point 5 calendar problems. You, Mr. Ostojic,

10 this morning addressed this point, that there are some problems, and then

11 you mentioned that you have -- that you had two additional urgent points.

12 MR. OSTOJIC: Thank you, Your Honour. With respect to the

13 calendar problems, the Defence is unclear as to what the remaining

14 witnesses are or that will be called, and when. The calendar problems

15 also include two other categories that I'd like to raise with the Court.

16 Dr. Stakic and I have met on Friday to try to go over some of the

17 anticipated testimony, such as Dr. Tabeau and Mr. Sebire and the military

18 analyst. We have not concluded that. He received, actually, the

19 translated version of Dr. Tabeau's report, for example, this morning. We

20 don't necessarily have a specific objection to that, but he did receive

21 the military analyst's report, in our opinion, late. We're still going

22 over that. We would propose, if the Court would be inclined to allow us,

23 to meet for a longer period of time after the direct examination of the

24 military analyst so that we can go over both the report and testimony in

25 greater detail. In conjunction with that, we have -- we are grateful for

Page 8502

1 the Court and the OTP have scheduled two individuals to this week come in

2 and review the Kozarski Vjesnik materials that are in the possession of

3 the OTP. We anticipated that the OTP case was going to end last week.

4 These individuals have obtained their airline tickets and travel

5 arrangements and are arriving today and tomorrow, respectfully. Dr.

6 Stakic would like also, in conjunction with the calendar issue, to meet

7 with them, since they are involved in the defence of this case, on one or

8 the other afternoons after he has an opportunity to meet with me.

9 So what we'd like is perhaps some clarity as to the remaining

10 witnesses, and since it's my opinion, with the exception of possibly one,

11 they are all, as I call them, in-house witnesses, if I can use that term,

12 that they are readily available, and it would not be an inconvenience to

13 schedule them for either Thursday or Friday. And I'm namely referring to

14 Mr. Sebire and Mr. Corin I think, and we can proceed with the military

15 analyst's cross-examination on either Wednesday afternoon or Thursday

16 morning. And we would still meet the Court's and party's agreement on the

17 deadline of Friday.

18 JUDGE SCHOMBURG: No doubt there is no possibility at all to

19 prolong the Prosecutor's case, and we have to conclude for certain

20 reasons.

21 May I ask the Prosecution in what order is -- do you want to hear

22 the witnesses? And I think there is still one open, as you -- opposed to

23 that what you said, not in-house witness. This motion is still pending.

24 MS. KORNER: Your Honour, I can say something about that, which

25 will help Your Honours and Mr. Ostojic. Over the weekend, the witness

Page 8503

1 contacted us, and in the light of the cross-examination she saw of the

2 other journalist and various other factors which seem to be troubling

3 journalists at the moment, she doesn't want to testify. And as I'm told,

4 I'm getting a reputation for forcing journalists into the witness box. On

5 this occasion, we've decided we're not going to take the matter further.

6 I think the video has already been played. We would still wish to play

7 the video.

8 JUDGE SCHOMBURG: So to play the video, and you withdraw the

9 motion --

10 MS. KORNER: To call the witness.

11 JUDGE SCHOMBURG: Accepted.

12 MS. KORNER: And Your Honour, after that -- I'm sorry. As far as

13 the other witnesses are concerned, we're in the Court's hands, but clearly

14 Mr. Brown has to be called on Tuesday and Wednesday because the two amici

15 have been organised for those two days.

16 JUDGE SCHOMBURG: So we'll be the full day, from 9.30 to 1400.

17 MS. KORNER: Yes. Mr. Cayley assures Your Honours that he won't

18 be taking the whole day for his examination-in-chief, so that will assist

19 Mr. Ostojic. After that, we would intend to put Mr. Corin in the witness

20 box, followed by Mr. Sebire.

21 JUDGE SCHOMBURG: May I ask the Defence: Is there a possibility

22 that Mr. Lukic attends the rest or the remaining part of the day? Because

23 we have to admit -- or discuss admission of documents, and there is a huge

24 number of issues to be discussed. We have also the 7th and 8th notice for

25 admission of transcripts, and so on and so forth. This will take time.

Page 8504

1 Therefore, at least one of you has to be present until the other part of

2 the day. Will that be at all possible?

3 MR. OSTOJIC: Not before Thursday, Your Honour, unfortunately.

4 But I'll be here, obviously, because we'd like to address those issues.

5 But what I'm saying, if I may clarify the issue a little further: As long

6 as we could have a session or two, I think I can complete the military

7 analyst's cross-examination in a half session, possibly a little more than

8 that, however we calculate it, so four hours or so, four and a half

9 hours. What I'm suggesting - and I didn't recall the amicus being

10 present, and with deference to them, we will be able to conclude, I think,

11 with the military analyst by Wednesday if I'm given an opportunity to meet

12 with Dr. Stakic either Tuesday afternoon, late, or whenever, and/or

13 Wednesday morning, so then that it would fall within the parameters that

14 the British government or the amicus would like. And then if Dr. Stakic

15 can have an opportunity, either Thursday morning or Thursday afternoon,

16 depending upon how long Mr. Corin's report would be, to meet with these

17 two other individuals, then I think we could conclude with both Dr. Corin

18 and Mr. Sebire from that day and a half that's remaining. Again, I don't

19 want to anticipate how long Mr. Corin may or may not take, although I've

20 reviewed in part his report. I don't anticipate that Mr. Sebire will take

21 very long. And again, I don't know how long the Court -- or how many

22 questions the Court may have of this witness. So we anticipate concluding

23 at that time, just as long as we can have a couple of hours, namely,

24 three, to discuss with Dr. Stakic both the military analyst and then as

25 well as the linguistics individual, Mr. Corin.

Page 8505

1 JUDGE SCHOMBURG: Is there a problem as regards the visiting hours

2 in the Detention Unit? Would it be of assistance if this could be

3 prolonged?

4 MR. OSTOJIC: It would be of great assistance. I don't know that

5 it's possible, but it would be the great assistance to us. They don't

6 allow us visits, I think, past 5.00, and we cannot visit before 9.00. So

7 we're kind of restricted in the time. From 9.00 to 5.00, correct.

8 JUDGE SCHOMBURG: So you would be prepared to play the early bird

9 as of 6.00 and until -- no, to be serious, when do you want to start?

10 MR. OSTOJIC: Our preference, if we can start at 7.00 instead of

11 6.00, and then if we can meet later in the day, that would also be

12 acceptable.

13 JUDGE SCHOMBURG: Yes. Until when?

14 MR. OSTOJIC: 10.00.

15 JUDGE SCHOMBURG: I'll try to do my very best.

16 MR. OSTOJIC: Thank you.

17 JUDGE SCHOMBURG: No doubt we'll have the support of the

18 Prosecution as well.

19 Okay. I think we can on this basis proceed as scheduled. Ms.

20 Korner, you mentioned the time limit of 14 days. Please take into account

21 we have limited this period of time both for the motion and for the

22 response to seven days.

23 MS. KORNER: So seven days for the Defence to put it in, seven

24 days for us to respond?

25 JUDGE SCHOMBURG: Yes, indeed.

Page 8506

1 MS. KORNER: I didn't remember -- I thought it was 14 but ...

2 JUDGE SCHOMBURG: No. It's necessary that we can, as scheduled,

3 start with the, if any, Defence case.

4 MS. KORNER: So, yes. Your Honour, I'm just trying to work it

5 out. The Defence have seven days from when to put it in?

6 JUDGE SCHOMBURG: Seven days starting with either the 1st or 2nd

7 of October. It depends on when we really finalise our so-called

8 deliberations. And then, after that, once again seven days. And only

9 this allows us to -- that the Defence has at least two weeks in

10 preparation of the Defence case, if any. And let's not go into far more

11 details on this schedule. Let's hope that at least after the decision of

12 the Chamber we can come closer to a conclusion.

13 MS. KORNER: Yes. Your Honour, can I just mention this, though:

14 Ms. Karper helpfully reminds me. There's unfortunately in that time frame

15 no way that we can have this translated into French, because it will be,

16 regrettably, I'm afraid, we're an English-speaking team and it will be

17 written in English.

18 JUDGE SCHOMBURG: Yes. I can't really ask you about the limit,

19 the limitation of your submission, and your submission would not be

20 realistic; right?

21 MR. OSTOJIC: It wouldn't at this point, just because we don't

22 know what he to anticipate with Monday and the Court's deliberations of

23 next week. So it's difficult to anticipate.

24 JUDGE SCHOMBURG: For the purpose of the written submissions

25 expected by the parties on Monday, the 30th of September, I think we can

Page 8507

1 do it in the way we did it in the past, reading out this document in the

2 courtroom. And then let's discuss later how to proceed then.

3 We are already out of the time limits. May I recall that the

4 remaining points, point 2, I don't want to read them out, are still

5 outstanding, from the Prosecution, and then -- yes. I think I can't see

6 any other contributions which should be dealt with today. This concludes

7 the Status Conference of today. As mentioned before, the hearing resumes

8 tomorrow, 9.30.

9 --- Whereupon the Status Conference adjourned at

10 4.05 p.m.

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25