1 Monday, 18 November 2002

2 [Pre-Defence Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.22 a.m.

6 JUDGE SCHOMBURG: Good morning. Please be seated.

7 May we please hear the case.

8 THE REGISTRAR: Good morning. This is Case Number IT-97-24-T, the

9 Prosecutor versus Milomir Stakic.

10 JUDGE SCHOMBURG: And then let us have the appearances.

11 MS. KORNER: Your Honours, Joanna --

12 JUDGE SCHOMBURG: Also in the Defence case, the Prosecution starts

13 in the common-law system, and it doesn't change?

14 MS. KORNER: No, it doesn't actually. It's always still the

15 Prosecution who start. But I'm happy for the Defence to start. Your

16 Honours, it's Joanna Korner, Nicholas Koumjian, and Ruth Karper, case

17 manager, for the Prosecution. And on behalf of the Prosecution, I welcome

18 Your Honours' new colleague.

19 JUDGE SCHOMBURG: Thank you for this immediately. And for the

20 Defence.

21 MR. LUKIC: Your Honours, Branko Lukic and Danilo Cirkovic for the

22 Defence. And our welcome to the new Judge as well.

23 JUDGE SCHOMBURG: Thank you. Before we start the Defence

24 conference as scheduled, please let me introduce to you our new Judge.

25 Under Rule 17, sitting now to my left-hand side, the Honourable Judge

1 Ms. Carmen Argibay. I still have some problem but we will learn as soon

2 as possible from Argentina. I don't want to go into more details of her

3 vitae here and now. For those who are interested, the entire CV, is like

4 all the CVs of Judges acting in this Tribunal accessible on the United

5 Nations Internet website. The short version was in addition

6 distributed to the press immediately after her solemn declaration, 4th

7 November this year.

8 Thereby, this Tribunal is operational again, Trial Chamber. And

9 you will be aware that our new colleague on the Bench is already on the

10 top of the case in a number of details, sometimes even more on the top of

11 the case than the other Judges where it's already faded a little bit. But

12 due to the fact that we have all the possibilities here, not only

13 transcripts but also videos, it's extremely -- I won't say easy, but it's

14 possible to have access to what has been said in the past in this case.

15 So there are no, in principle, no obstacles, to restarting the case

16 immediately.

17 The only visible and audible change will be that the language in

18 this case will be from now on English only. Of course, translated into

19 the language the accused understands. No doubt, this will speed up our

20 proceedings. And in principle, it will be no longer necessary to, for

21 example, read out documents in open Court.

22 This brings me immediately to the start of the pre-Defence

23 conference. And at the same time, a short Status Conference. The parties

24 have received the Chamber's 98 bis decision, I hope, in a language

25 everybody understands, also when reading between the lines. One thing I

1 have to emphasise in addition is that all the interim decisions during the

2 Prosecution's case had been unanimous decisions. In the meantime, we

3 received a number of motions in writing. It is for all of us to settle

4 these disputes emanating from these motions hopefully already today. And

5 in addition, I hope that we can continue with our practice raising issues,

6 in principle, in open court and receiving answers and decisions orally, in

7 principle, as well.

8 When having before us all the motions of the last, say, ten days,

9 the question is what has priority? To a certain extent, I was alerted by

10 the motion of the Defence by November -- November 11, the final list of

11 witnesses pursuant to Rule 65 ter (g). This brings me to ask as usual in

12 the framework of a Status Conference, Dr. Stakic in person, Dr. Stakic,

13 what about your health condition? Do you have any complaints regarding

14 this or do you have any complaints regarding your situation in the United

15 Nations Detention Unit?

16 THE ACCUSED: [Interpretation] Good morning, Your Honours. At the

17 moment, I have no objections to raise concerning the conditions, and I am

18 in good health. Thank God for that.

19 JUDGE SCHOMBURG: Thank you. Please be seated.

20 May I then ask Defence counsel, on the list of your envisaged

21 witnesses and experts under number 100, I found - and this was alerting

22 me - that you're requesting a neuropsychiatrist. And therefore, my

23 question to you, what is the background? Is this the health condition of

24 your client, or why did you want us to hear an expert on -- I've never

25 heard this word before, but apparently it seems to be related to the

1 health of your client. Please let us know.

2 MR. LUKIC: I think that it's the opposite, that we want to prove

3 that Dr. Stakic is very normal and ready to go back to a normal life. And

4 also, we want to refute some statements from one of the journalists who

5 testified in front of this Court who stated that Dr. Stakic seemed to be

6 crazy.

7 JUDGE SCHOMBURG: So it's not related in any way to the actual

8 health, state of health, or to the question of culpability. Is that

9 correct?

10 MR. LUKIC: No, Your Honour. It's not our Defence in this case.

11 JUDGE SCHOMBURG: Thank you. This is already a relief. Let us

12 come back to this motion a little bit later. But I think now, priority

13 has the latest motion filed by the Defence November 13th, a motion for

14 mistrial. Normally potatoes are not eaten as hot as they are cooked but I

15 can't anticipate what is behind this motion. There are several

16 alternatives, and let -- before I give the possibility to the Prosecution

17 for a response, one question remains open: Under (b), you mention that

18 the Trial Chamber should enter an order to strike from the record the

19 testimony of certain witnesses to be identified by the Defence in open

20 court. Could you please let us know what witnesses you have in mind when

21 making this statement.

22 MR. LUKIC: We haven't identified -- we really didn't have time by

23 now to do this, all the witnesses we had in mind. But it relates to the

24 witnesses who testified about the issues clarified by the 68 bis

25 disclosures, clarified by the witnesses who were questioned by the OTP in

1 March this year, and June or July last year. And those witnesses were

2 members of the Crisis Staff. And we didn't have a chance to see those

3 statements, and we didn't have a chance to cross-examine the witnesses who

4 testified on crucial issues relating to this case. First of all, we think

5 about the politicians who took part in the political life of Prijedor

6 Municipality in 1992, like [redacted] or Sejmenovic or Murselovic

7 because we couldn't cross-examine them correctly at that time.

8 Another issue relating to this --

9 JUDGE SCHOMBURG: Sorry.

10 MR. LUKIC: Okay.

11 JUDGE SCHOMBURG: I think we shouldn't start with this. It

12 started already with the Defence first 65 ter (g) letter, and then the

13 additional final list of witnesses. To be honest, we can't live in this

14 way. You can't just tell the Court that you miss certain witnesses to be

15 identified in open court. You can't expect this Trial Chamber to search

16 somewhere in the fork what do you mean by this?

17 MS. KORNER: Your Honour, before Your Honour goes on, I was going

18 to say would Mr. Lukic be kind enough not to identify these witnesses by

19 name he's already mentioned, one who was protected. So I would ask that

20 that be -- I'm not sure how to do this now without repeating this, but in

21 any event before this goes out, it needs to be redacted.

22 JUDGE SCHOMBURG: Could we please, Madam Registrar, redact the

23 name from --

24 MS. KORNER: Ms. Karper has written the name down.

25 JUDGE SCHOMBURG: Yes. When I say identify in open Court, of

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1 course I didn't --

2 MS. KORNER: No, Your Honour didn't.

3 JUDGE SCHOMBURG: -- refer to the names but to the pseudonyms and

4 otherwise give us access to what the Defence really wants. And that yes,

5 let's continue.

6 So I think as to the fact that you are not able to identify these

7 witnesses in open court here and there, and you had enough time, no doubt

8 enough time, to prepare the Defence case, and before coming with this

9 accusations vis-a-vis the other party, it would be fair enough and it

10 would be necessary to identify these persons that we are aware what you

11 are complaining of, and then we can react in the adequate way. Because no

12 doubt, in case there was prejudice, then we would have to discuss possible

13 consequences. But if you mention only "witnesses" as such without going

14 into concrete details, it's not possible for us.

15 Under (c), you state that the Court enter an order compelling the

16 OTP to produce the statements in full of the witnesses identified in the

17 disclosures of 18 October, 21 October, 28 October, and 28 October once

18 again, the second. And enter an order accepting each of the Rule 68

19 disclosures as being exculpatory and admit the same as evidence.

20 Could you please go into some more details so that the Trial

21 Chamber is able to understand what is the underlying request.

22 MR. LUKIC: Your Honour, these days we are receiving almost every

23 day the whole list of 68 bis that usually only lists. We don't receive,

24 for example, the whole testimony. We receive only fragments, so we are

25 also unable to check the statement of the witness, if it's only

1 fragmental. We don't know what's the substance of the rest of the

2 statement. And it's -- the case of the Prosecution is over. That's the

3 manner of the work of the Prosecution in every single case. We have it in

4 Samac case. They disclosed the bunch of the documents during the Defence

5 case. In Krstic case, they disclosed a whole pile of documents after the

6 appeal brief. So if we are expecting to work in this trial that way, we

7 are not ready to proceed. We have to know what our Defence is. We cannot

8 have our Defence before we have all the documents. Investigation is

9 entrusted to the Prosecution, and they do the complete investigation.

10 They have the documents.

11 For example, we asked the Kozarski Vjesnik for issues from April

12 and May, we received information from the OTP that they don't have it.

13 In Kozarski Vjesnik, we were told that everything was taken by the OTP.

14 So also, we would like to clarify that question. And if this Tribunal is

15 not powerful enough to press and to order the Prosecution to disclose

16 everything necessary to the Defence, we ask the Court to order the

17 Prosecution to give that statement in front of the Dutch notary public so

18 if it's not fulfilled, we at least have some kind of weapon against the

19 OTP to get what we have to have.

20 JUDGE SCHOMBURG: I think the Defence doesn't need additional

21 weapons, and we should refrain from using these terms. In case you are

22 concrete, there's no problem, and here, in fact, save the second

23 disclosure as of 28 October, 2002, it was disclosure 1164 ongoing, 1166,

24 we have this before us. And as I already said earlier, this Trial Chamber

25 being composed of Judges of civil-law systems totally dislikes this

1 approach, that the parties present us some facts, extracts of facts, and

2 then it's for the Judges to fish in the sea to find the additional, the

3 complementary evidence. Therefore, I would ask the Prosecution, what are

4 the reasons for disclosing these documents at this point in time after the

5 end of the Prosecution's case?

6 MS. KORNER: Your Honour, I think I need to explain to Your Honour

7 the processes that have gone on here, and it's going to take -- it's not

8 an instant answer. Your Honour, however, may I start by saying this more

9 in sorrow than in anger, that I deplore the phrases and the tone of the

10 motion that was filed, which I have no doubt at all was written by Mr.

11 Ostojic because it reflects very strongly the American style of advocacy,

12 which I've become used to in the Brdjanin case and I'm sorry Mr. Ostojic

13 is not here today to uphold the allegations and the hyperbole which is

14 contained in this motion.

15 Your Honours, I think the pertinent question you asked Mr. Lukic a

16 minute ago, to identify the witnesses he says that they would have been

17 cross-examined differently, and his inability to do so shows I regret to

18 say that this motion is simply an attempt, as they set out in paragraph 41

19 of the motion, that they effectively wish to delay the start of the case.

20 All they had to do was say that. Your Honours know that we also would

21 have been happier if the case could have started after January, without

22 trying to drag up allegations of misconduct by the Prosecution.

23 Now, Your Honours, the rules state this, and can I remind

24 Your Honours in light of some of the requests, of Rule 66, first of all,

25 that we are obliged to disclose to the Defence copies of statements of all

1 witnesses whom the Prosecutor intends to call to testify at trial, and all

2 written statements taken in accordance with Rule 92 bis. Rule 66(B)

3 entitles the Defence to inspect any books, documents, photographs, and

4 objects in the Prosecutor's custody or control, which are material to the

5 preparation of the Defence or are intended for use by the Prosecutor as

6 evidence at trial, et cetera.

7 Now, Your Honour, a specific letter was written to the Defence in,

8 I believe -- I had a copy of it a moment ago. January, yes, I'm sorry.

9 The 25th of January of this year asking them whether they wished to invoke

10 the -- their ability to inspect everything we had under Rule 66(B). We

11 received no reply to that, though I believe verbally they said no, they

12 were not proposing to use that rule. Your Honour, we then moved to Rule

13 68, which is the -- really the rule that affects this particular aspect of

14 the case.

15 "The Prosecutor shall as soon as practicable disclose to the

16 Defence the existence of material known to the Prosecutor which in any way

17 tends to suggest the innocence or mitigate the guilt of the accused or may

18 affect the credibility of the Prosecution evidence." Now, Your Honour, no

19 one in this Tribunal is unaware of that, and particularly no one in the

20 Office of the Prosecutor. Your Honour, I think I've already mentioned

21 this once to Your Honour before, but the quantity of material held by this

22 Office in respect of Prijedor is simply enormous. It is not, I think, an

23 exaggeration to say that over the ten years or so that this Tribunal has

24 been in existence, or eight years, there must be hundreds and hundreds of

25 thousands of pages of documents that in some way or another relate to

1 Prijedor.

2 Your Honours, as a result, from the moment that this case began,

3 and Dr. Stakic was arrested, the Office of the Prosecutor had unceasingly

4 engaged in searches to identify material under Rule 68. Now, because of

5 the huge amount of material that we knew that we had, we wrote to the

6 Defence about this on the -- Your Honour, I'm sorry I keep losing my

7 letters. Yes, Your Honour, I'm sorry. In January. It was the same

8 letter that we wrote in respect to that. We wrote asking this: "As a

9 further matter, I would like to inform you it would greatly assist and

10 expedite the Rule 68 searches if you could provide the Prosecution with

11 any specific type of document that you feel will be relevant to a possible

12 Defence in your case. Such search criteria would enable us to make more

13 efficient use of the in-house search facilities. If you would like to

14 discuss these matters further, please do not hesitate to contact Nicholas

15 Koumjian." Your Honour, absolutely no response was received to that

16 letter. Of course, the Defence are entitled to remain silent about what

17 the nature of their Defence is or what documents they would like us to

18 look for, but that doesn't help us.

19 Your Honour, I had drawn up over the weekend -- I've made

20 inquiries, and if necessary we can reduce this to a schedule for

21 Your Honours' perusal. We employed 15 people over a period of some,

22 adding up the total hours engaged - this is of course -- nobody actually

23 timed it to an exact time -- the amount of time they spend in it, but this

24 is an estimate, 2.942 man hours have been spent in looking for Rule 68

25 material in respect of Stakic. A total of 1.000 -- and I say a total, and

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1 this is an estimate as best we can, 167.000 documents, Your Honour, have

2 been searched. That's documents, Your Honour, not pages. So the pages

3 are something that we can't even begin to quantify. Your Honours, records

4 have been kept as far as is possible of all the material searched. A lot

5 of the material has never been translated into English, and therefore it

6 is necessary to use language staff to try and identify what may be in that

7 material.

8 Now, Your Honour, the rule says "the nature of the material."

9 Until the Trial Chamber on the 30th of October, because the same point has

10 been raised in the Brdjanin case over Prosecutor -- as I say, this seems

11 to be an American habit of making allegations that the Prosecution have

12 been behaving improperly. We have understood the rule to mean it was of

13 sufficiency to produce a summary of the Rule 68 material. It was not

14 necessary to produce the whole statement because these people weren't

15 being called as witnesses, and there's an extra added difficulty which I

16 will explain to Your Honour. But Your Honour, all the letters that were

17 sent to the Defence said this: "Please find enclosed short summaries and

18 documents which contain resulting from ongoing searches, which contain

19 information that may fall within the ambit of Rule 68 of the Rules of

20 Procedure and Evidence. In the event that any of the summaries are of

21 interest, please advise." We have never been advised that they have

22 required any of the full statements from which the summaries have been

23 produced. In the Brdjanin case, Mr. Ackerman quite often said he required

24 the full statements. These were provided with redactions. And the

25 problem has been, Your Honour, that particularly where witness statements

1 are concerned, these witnesses were all seen over a period of years. Some

2 of them were seen by the Bosnians. Not one of them were ever informed

3 that they may have to be, their names, may have to be given to the

4 Defence. And so where the Defence have either asked for the witness

5 statement, we have taken out the names and said if you require to contact

6 these witnesses, you must let us know because we have to let them know

7 that their particulars and their statements are going to be provided to

8 the Defence because they were never told that this might happen. And it

9 would not be right in our view to do that.

10 Your Honour, not once, not once since we have been disclosing the

11 material to the Stakic Defence team have we ever received a request until

12 Your Honours were asked to make this order in the motion.

13 Your Honours, we have been disclosing since this case began Rule

14 68 material right from the beginning because the first searches that were

15 done were the obvious ones on material that was exculpatory of Dr. Stakic

16 himself. We, however, took the view that we had to go a great deal

17 further and we must, therefore, search for documents and statements that

18 contradicted anything that our witnesses might have said. And that, as I

19 say, has taken a long time indeed. It has been a search carried out not

20 just for the Stakic case but for the Brdjanin and Talic. And that is why

21 these disclosures relating to the summaries have been coming so late.

22 Your Honours, to suggest that we have deliberately withheld

23 knowingly information which may assist the Defence is a disgraceful

24 suggestion. If we were going to do that, then why didn't we sit on it

25 completely and wait for the appeal? And what advantage is it to us not to

1 disclose this material?

2 Now, Your Honours, the summons material that Mr. Lukic -- the

3 motion explains about it. Your Honours, these people were interviewed as

4 the Defence say in March of this year. We did actually disclose what we

5 considered to be the obvious Rule 68 material in that some time ago. For

6 example, one of the people interviewed -- thank you very much. I do

7 apologise. I have a lot of paper here today. On the 12th of March, we

8 disclosed the material, for example, from one of them there was complaint

9 made that he stated he did not believe that Stakic went to Omarska. Your

10 Honour, as the case has gone on, it has become clearer what the Defence

11 is, other than the obvious one that Dr. Stakic had no power. And so we've

12 had to go back and re-look at the people who were interviewed. And Your

13 Honour, I do regret, and it is entirely my failing, that we didn't go back

14 and look at those interviews earlier. It simply fell through the cracks.

15 There was so much other reviewing going on of transcripts that I forget to

16 issue instructions to go back to those interviews and see what else could

17 be classed potentially as Rule 68. And so that is the reason for the

18 delay. I'm afraid I gave -- this was the complaint in the Brdjanin case

19 as well. I gave the same explanation. It is a failure, a human failing.

20 It was not done deliberately. As I say, we have no reason to withhold

21 this material. But it's only disclosed in summary form because that's

22 what the rules say, or in fact we now disclosed the actual words used as a

23 result of the order in the Brdjanin case. And we thought having received

24 that order, it would be wrong, even though there had been no order in this

25 court, and although the norm is to disclose the nature, a summary, of what

1 the material is. And that's why they have got it in this form.

2 Your Honours, we would say that they have received all the

3 material that they are entitled to. If Your Honour feels that they should

4 have the whole of the summons interview, then we will turn it over. But

5 we do say that is not something that is -- they are entitled to, and there

6 are good reasons why they should not get it unless and until these persons

7 are actually called by the Defence as witnesses. Because one of the

8 matters that Your Honours will have to decide is upon the credibility of

9 these people if they are called as Defence witnesses and if they have said

10 something completely different to the Defence and in the witness box from

11 what they have said to us, so that may be a matter that Your Honours

12 wish to consider. All of these people, Your Honour, are known to the

13 Defence. It's not that we have interviewed people that they could not

14 have known about and have not known about. These are obvious if the

15 Defence wished to call evidence about the Crisis Staff, these are obvious

16 witnesses. And Your Honours may recall, we had some discussion when

17 Your Honours were inviting us to call witnesses who were hostile to our

18 case.

19 Your Honours, the -- as I say, it is abundantly clear, we suggest,

20 that all of this is simply a tactic to try and delay the start of the

21 Defence case. And it was an unnecessary tactic because we have every

22 sympathy for the Defence on this. We suggest that if the Defence are able

23 to identify questions that they would have asked of witnesses who have

24 been called which they could not have asked or would not have asked

25 because they didn't know about this material, then we will have those

1 witnesses recalled. But Your Honours, at the moment, judging by

2 Mr. Lukic's inability even to name the witnesses that he says they would

3 have questioned differently, that this is as I say nothing more than a

4 tactic. But if they can identify the questions they wanted to ask, if

5 those questions are proper or admissible, and they were not able to ask

6 them because they did not have the information, then we will arrange to

7 have these witnesses recalled.

8 Your Honours, I'm sorry to have taken so long but I felt it was

9 necessary to go a little bit into the history of this matter.

10 JUDGE SCHOMBURG: I thank you for your submission. As mentioned

11 before, I think according to the answer as regards point (b) of the

12 request by the Defence as to the fact that the Defence is not able to

13 identify these witnesses today, for today, this request is moot. But let

14 us come to point (c). The request is related to, first of all, to

15 disclosures, the 18th of October. Disclosure number 1161, and then 1162,

16 the 21st of October, and 28 of October. We have first of all the report

17 of the commission on the inspection of collection centres and other

18 facilities for captives in the Autonomous Region of Krajina. I think

19 there should be no doubt among the parties that Rule 68 doesn't expire at

20 the end of the Prosecution's case, and there is the ongoing obligation to

21 disclose exculpatory material. Therefore, I believe there is nothing

22 special with these brief descriptions. And I understand the Prosecution,

23 if the Defence so want, they can have, no doubt, access to the entire

24 documents mentioned in these brief descriptions. Are you satisfied as

25 regards these summaries, having access to all the materials? I think

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1 nothing more can be granted. I come back to the 1167 when it's -- sorry,

2 1163 ongoing, I come back later. But now it's only on those disclosures

3 where we have only summaries. Are you satisfied that you have access to

4 these documents as such?

5 MR. LUKIC: Your Honour, I first have to mention that I received

6 those documents yesterday. Actually I found only those charts in my

7 locker. I haven't received it before,. And the documents, witness

8 statements, those fragmental witness statements, I got through the motion

9 of Mr. Ostojic --

10 JUDGE SCHOMBURG: Is it correct that you yourself signed this

11 motion?

12 MR. LUKIC: Sorry?

13 JUDGE SCHOMBURG: Is it correct that you yourself signed this

14 motion?

15 MR. LUKIC: Yes, that's right.

16 JUDGE SCHOMBURG: Thank you.

17 MR. LUKIC: But the fact is that I haven't seen those documents

18 before yesterday.

19 JUDGE SCHOMBURG: But you are prepared --

20 MR. LUKIC: Of course --

21 JUDGE SCHOMBURG: You are prepared to answer in this language we

22 are not acquainted with in this courtroom without seeing the underlying

23 documents?

24 MR. LUKIC: First of all, I would like to go back to the statement

25 of Ms. Korner. She gave a long and nice speech. The problem is that we

1 are discussing here about the members of the Crisis Staff, and if this is

2 not the trial about the Crisis Staff, I don't know what kind of trial is

3 this. They interviewed the members of the Crisis Staff in March this

4 year, a few days before the trial --

5 JUDGE SCHOMBURG: I'm sorry, please don't confuse. I draw your

6 attention only to the first summaries, and not to the others. I

7 explicitly stated earlier that I'll come back to this 1163 and ongoing,

8 the interviews on March later, because I think this is a different

9 problem.

10 My question is only related now to these brief descriptions of the

11 18th and 22nd of October. And my question was, does it suffice that you

12 have access to these documents as stated by the OTP? Then we can come

13 back later to the other...

14 MR. LUKIC: I would kindly ask you to explain to me what kind of

15 access you have in mind, Your Honour.

16 JUDGE SCHOMBURG: I think we discussed this earlier in this case.

17 When there is a summary, and disclosure of a Rule 66 or Rule 68

18 information, this means that there is a document available with the OTP.

19 And in the beginning, I recall that the Defence agreed that it shouldn't

20 be for the Prosecution to label a document as an exculpatory one. So

21 therefore, it is a hint that they have found new documents. And if you so

22 the want, you have access to these documents.

23 MS. KORNER: We will provide, so there's no misunderstanding, we

24 will provide the full statement of the person from whom this extract was

25 taken, but we will redact at this stage the identifying details, the

1 name. But the statement will be there. If you require the name, because

2 you wish to interview the witness, then if you make the request, we will

3 contact, if we can, the witness.

4 JUDGE SCHOMBURG: Are you satisfied with the --

5 MR. LUKIC: Yes, we are satisfied with this kind of disclosure.

6 Yes, Your Honour.

7 JUDGE SCHOMBURG: Thank you. The report of the commission, this

8 was disclosure number 1167. I think you have received it in full?

9 MR. LUKIC: Yes, we have it, Your Honour.

10 JUDGE SCHOMBURG: So then let's turn to that where we received

11 already the apologies by the Prosecution. And no doubt that also the

12 Trial Chamber, when being confronted with these documents, were to a

13 certain extent surprised and disappointed not to have these documents

14 before us and now only, if I understand it correctly, extracts. And

15 please, could you please specify your request as regards these statements.

16 MR. LUKIC: Yes, Your Honour. We would like to have the full

17 statements of the witnesses interviewed by the OTP. I don't know whether

18 they would be protected witnesses or not, so if we are mentioning the

19 names, it would be advisable to go to the private session.

20 [Trial Chamber confers]

21 JUDGE SCHOMBURG: As to the fact that normally one can understand

22 a document only as a whole, when taking only parts from a document and

23 from a statement, there is already a kind of evaluation, and I think the

24 most appropriate way is to present the entire statements requested here,

25 not only to the Defence but also to the Trial Chamber, that we have all

1 the same access, the same knowledge on these crucial points, and therefore

2 I think there is no obstacle in principle.

3 MS. KORNER: Your Honour, it is rather different. As I said, if

4 Your Honours order it, then we'll do it. But these are people who the

5 Defence have had the opportunity to interview themselves. And as I say,

6 there's a real reason for us not handing over people that we are not

7 calling that we interviewed under Prosecutor's summons who we have reason

8 to believe, not reason to believe, who are accomplices effectively. And

9 we would prefer that the Defence only get that to which they are entitled.

10 But I know that Your Honour is very keen on full statements, so if Your

11 Honour orders it, we'll hand them over. But what I do not wish this to be

12 thought of as a precedent because this has an effect on many other cases

13 in this building. It is not something that the Defence would be entitled

14 to under the rule.

15 [Trial Chamber confers]

16 MS. KORNER: Your Honour, I'm sorry to interrupt, there's one

17 other thing that Mr. Koumjian rightly reminds me of.

18 Just before Your Honours rules, could I just mention this: There

19 are certain persons - we're not saying these are part of them - who have

20 actually cooperated in a sense and could be dangerous, I think, if that

21 were discovered. I'm not saying that any of these do, but that's the

22 principle behind nondisclosure as well of the full transcripts.

23 JUDGE SCHOMBURG: The Trial Chamber hereby orders the Prosecution

24 to present the entire statements to the Defence and to the Trial Chamber.

25 May the names be, if necessary, redacted. And if there are any included,

1 included in the statements, then we can decide later on. But first of

2 all, it's for you to present the documents and we can discuss any

3 redactions later on.

4 MS. KORNER: Your Honour, I think what we'll do ask if we decide

5 there are certain parts we wish to redact, we will put them before Your

6 Honour to make a ruling under Rule 66 (c).

7 JUDGE SCHOMBURG: Thank you. The Defence is satisfied with this

8 proceeding?

9 MR. LUKIC: Yes, Your Honour. And thank you, Your Honour. Only

10 one more thing relating to these witnesses. We want clarification from

11 the OTP whether they asked those witnesses if they have been approached by

12 the Defence because two of those witnesses were approached by the Defence

13 before the OTP approached them. So first of all I would like to get the

14 answer from Mr. Koumjian who obviously interviewed those individuals.

15 MS. KORNER: Your Honour, I can deal with that because we asked

16 the same question whether any of these persons have made statements to the

17 Defence. Your Honour, I don't think it matters, but we say we simply want

18 it for information because obviously if we know they have been approached

19 by the Defence, we want to make sure they understand they don't have to

20 tell us anything.

21 JUDGE SCHOMBURG: Satisfactory?

22 MR. LUKIC: What was the response of those witnesses?

23 MS. KORNER: Your Honour, Mr. Lukic will get the full transcript

24 and he -- they'll see exactly what the response was.

25 JUDGE SCHOMBURG: Okay.

1 MS. KORNER: I mean I'm not prepared to speculate without having

2 the transcripts in front of me.

3 JUDGE SCHOMBURG: Right.

4 MR. LUKIC: Also, Your Honour, if I may.

5 JUDGE SCHOMBURG: Yes.

6 MR. LUKIC: Whether those two witnesses would be treated as OTP

7 witnesses or Defence witnesses? Do we have to have somebody present if we

8 speak to them from the OTP office or not?

9 MS. KORNER: Your Honour, I've made this absolutely clear. If

10 they were OTP witnesses they -- under Rule 66, the Defence would have been

11 entitled to the full transcript and would have had it. We didn't -- we

12 are not calling these witnesses because we do not regard them as witnesses

13 who are anything other than hostile to our case.

14 JUDGE SCHOMBURG: Already earlier, maybe it's the use of language

15 you're acquainted with, but also taking into account the final result and

16 the impression this Trial Chamber had, for example, by another witness

17 where in anticipation of the hearing, the Prosecution tried to convince

18 the Trial Chamber that this witness would be hostile or hostile to the

19 Prosecution's case, I don't think this is the correct approach. Correct

20 approach is that we have to hear witnesses as human beings, and especially

21 under our mandate, under chapter 7, we have to be extremely careful to

22 anticipate the evaluation of evidence and as experienced not only in our

23 case but also in other cases show, they, as human beings, may decide to

24 have another approach today to that what happened deplorably in 1992 and

25 the following years in Former Yugoslavia. Therefore, both parties should

1 not try, but unfortunately the common-law system is inviting for this, to

2 see the witness of the respectively other side as a hostile one. I think

3 we should not use this language. A witness is a witness, and we want to

4 hear the testimony of these witnesses. And no doubt, it's for the

5 Defence, if they so want, to summon these witnesses because in this case,

6 no doubt, their testimony would be relevant.

7 I wonder, having a view now to this entire motion of November 13,

8 and having heard the explanations by the Prosecution and some remarks by

9 the Trial Chamber, whether or not the Defence is upholding this entire

10 motion? And then, please give some reasons for this.

11 MR. LUKIC: Yes, Your Honour, we do uphold this motion. And I

12 think that Mr. Ostojic gave all the reasons in the motion. And I think

13 that they are fairly stated and clear and just. Also, I have to say that

14 at the time when we gave our consent to continue with the trial, at that

15 time we didn't know about those statements. And I have to say that at

16 that time, we would surely advise our client differently than we did at

17 that time.

18 JUDGE SCHOMBURG: Would you please tell us what is the prejudice

19 you're suffering? As relates (c), you agreed that the access to the

20 documents provided by the OTP suffices. As regards (d), the problem, I

21 think, has been settled. And (e), this general clause that "further

22 relief the Trial Chamber deems to be just and equitable" this also runs

23 moot after we had settled (c) and (d).

24 As regards (b), it's, as it stands here, and as you couldn't

25 submit anything in addition to this, I can't see really any kind of

1 prejudice. You yourself mention only certain witnesses, and maybe it's

2 related to those witnesses mentioned in paragraph 31, 1 to 5. But where

3 is the prejudice? Isn't it possible for the Defence, or alternatively, if

4 the Defence tells us that there will be extreme difficulties to summon

5 these witnesses and to bring them then to The Hague, I want to recall that

6 this Tribunal, this Trial Chamber, always has stated that in case the

7 Defence feels it necessary that the Trial Chamber would issue an order of

8 safe conduct if necessary; and in addition, if the situation in that area

9 so allows, the Trial Chamber is prepared to hear a witness in Former

10 Yugoslavia. So therefore, please tell us where is the problem, where you

11 see the prejudice for your client?

12 MR. LUKIC: First of all, I think that Your Honour remembers how

13 many times you asked the witness who is to blame for everything that

14 happened in the Prijedor area. I think that your question would be

15 completely different and you could cross-examine differently every single

16 witness you asked that question differently if you had those statements in

17 front of you. Also, our position is that your decision based on Rule 98

18 bis would be different if you had these statements in front of you. So we

19 think that the whole proceedings is impaired by not disclosing the

20 statements which were available and taken before -- a few days before the

21 trial. Those statements were not disclosed in a timely manner.

22 Mentioning thousands of hours spent on 68 bis rule by the staff of the

23 OTP, mentioning that this is not deliberately withheld is not true and

24 cannot be applied to those statements because, as I said, they were taken

25 a few days before the trial, taken by one of the OTP attorneys who is

1 sitting in this trial. So obviously, those statements were deliberately

2 withheld from the Chamber and from the Defence. And those statements

3 would have huge impact on the whole case. So that's our position, and

4 that's why at the first place we asked for the mistrial in this case and

5 to have the trial from the very beginning.

6 JUDGE SCHOMBURG: Yes, please.

7 MS. KORNER: Your Honour, I really do take grave exception on

8 behalf of Mr. Koumjian who is perfectly able to speak for himself, to the

9 allegations that I have lied or that Mr. Koumjian in some way has lied

10 either to the Defence or to the Court. These interviews were conducted by

11 Mr. Koumjian. They were on tape. They had to be transcribed, so the

12 transcriptions were only available a short time, a shortish time again.

13 That does not excuse, and I make no bones about it, my failure to order

14 that the interviews should be searched for any Rule 68 material. Some of

15 it was done and disclosed immediately. The fuller searches, and it is no

16 good the Defence trying to avoid this, were not done because of the

17 Defence declining to give us any assistance as to what the full nature of

18 their case was. And so we had to do the searches on everything. We

19 should have -- and I have said it over and over again, we should have

20 started with those interviews. We didn't. That's our error. But if we

21 were deliberately withholding, then why would we disclose at this stage,

22 and thereby give the Defence the opportunity to put in the motion in the

23 terms in which they did. But I deeply, deeply resent the allegation that

24 Mr. Lukic makes with no foundation whatsoever.

25 MR. LUKIC: I'll try to respond why did you disclose this?

1 Because we approached one of these witnesses we didn't approach before,

2 and probably he informed you because when he told us that he has been

3 interviewed by the OTP, we immediately quit questioning him. And that's

4 why you disclosed this, because you were informed that we were informed

5 that that person gave you a statement.

6 MS. KORNER: Your Honour, that's pure speculation and wrong

7 speculation. Not one of these witnesses has informed us that they were

8 approached by the Defence. And as I say, what Mr. Lukic has just said

9 exactly shows the situation that they knew who these witnesses were, they

10 could have interviewed them at any time.

11 JUDGE SCHOMBURG: I think we shouldn't continue to discuss on

12 guilt or not guilt on the one or other side. And it's not for the Trial

13 Chamber to decide on this right now. I understand that from the motion of

14 the Defence, provisionally filed the 13th of October, 2002, the official

15 version I just learned from the registry is from 15 November, 2002, the

16 accused Milomir Stakic's motion for mistrial, we have resolved points (b)

17 to (e). And it's remaining point (a). And as I understood the Defence

18 correctly, they desire a decision on this point (e) only after we have

19 read the entire statements provided in disclosures 1163 ongoing. Is this

20 correct, Mr. Lukic?

21 MR. LUKIC: Yes, Your Honour. That's right.

22 JUDGE SCHOMBURG: Thank you. Then the Trial Chamber will decide

23 on this in due time. But, of course, not earlier than we have received

24 the other documents in the moment the Trial Chamber having discussed this

25 issue in advance before entering the courtroom, we didn't find any reason

1 to intervene immediately.

2 Let us now turn to the motion or the brief under 65 ter (g). And

3 with some serious concern, we saw that, first of all, the first list,

4 provisional list of witnesses, did not live up to the expectations

5 provided for in the rules, in 65 ter (g). Leaving for a moment aside the

6 question of the list of exhibits. But as for the witnesses, I have a lot

7 of problems. Let's start with a more simple question: You have provided

8 summaries for eight witnesses. Can we expect that it is planned to hear

9 these witnesses during this week?

10 MR. LUKIC: Yes, Your Honour, that's right.

11 JUDGE SCHOMBURG: The first witness will appear when?

12 MR. LUKIC: Hopefully today.

13 JUDGE SCHOMBURG: You have prepared, proofed, witnesses how many

14 for today, one or two?

15 MR. LUKIC: Only one for today, Your Honour.

16 JUDGE SCHOMBURG: And his or her name, if not --

17 MR. LUKIC: I would like to ask the protective measures of this

18 witness. It's male, so I thought it not necessary, but because of certain

19 circumstances I would like to address in private session that I ask for

20 some protective measures for him.

21 JUDGE SCHOMBURG: This question was only related to the question

22 that we, in fact, can hear the witness today because one thing has to be

23 said before going into details. To a certain extent, the submission of

24 the Prosecution as to the relevance of these witnesses is correct in the

25 closer sense of the word "relevance." And I think it's also necessary

1 that we use in common a language the accused understands, not only

2 related to the translation from English to B/C/S, but also to our legal

3 language. When we use the term "relevant" or "irrelevant," that is

4 related to our case before us only. Nobody could say that the testimony,

5 prepared some extremely short summaries, but we know what the witnesses

6 will testify about. Nobody could state that this what happened to these

7 persons is irrelevant in a broader sense, irrelevant for the evaluation of

8 what has happened in the territory of Former Yugoslavia since 1991. It is

9 of importance. But we have to limit ourselves and our case for that -- to

10 that what is really relevant for the decision in the concrete case. And

11 here, we have to re-emphasise what we did in the beginning, that tu quoque

12 is no defence. That means that the fact that other crimes have been no

13 doubt committed on the territory of Former Yugoslavia as such is no

14 defence. And therefore, and only therefore, one can speak about, as the

15 OTP to a certain extent correctly did, state that the witness of the one

16 or other -- the testimony of the one or other witness is not relevant in

17 this sense.

18 We don't want to go so far and state that the summoning of these

19 witnesses for the first week could be seen as a kind of abuse of the more

20 generous approach of this Trial Chamber not going into details of each and

21 any witness in the framework of a pre-Defence conference. But apparently

22 leaving it for you to summon the witnesses for the first week. The Trial

23 Chamber decided not to reject and not to strike the witnesses from the

24 list of witnesses because to a certain extent, it cannot totally be

25 excluded that there is some relevance. Some relevance may be for the

1 state of mind Dr. Stakic acted from the period of time envisaged in the

2 fourth amended indictment. This is from April 1992 onwards. And as we

3 understand, the witnesses will testify on that what happened immediately

4 before. And there could be and there might be some relevance as regards

5 if it would come, if I emphasise this, to a conviction, this could be

6 regarded in a way as a mitigating factor. But primarily, the Trial

7 Chamber will not give any assistance to the impression that this Tribunal

8 is one-sided and only hearing witnesses from one side by sending back

9 witnesses you have already summoned and giving them the impression that

10 for this Tribunal, their testimony is not relevant. This would be a

11 totally wrong impression, and therefore you may continue with these

12 witnesses. And may I ask the period of time you need for the witnesses

13 for this week?

14 MR. LUKIC: First of all, I would --

15 JUDGE SCHOMBURG: First for today, and then for the other days.

16 MR. LUKIC: First of all, I would like to thank you, Your Honours,

17 not to reject these witnesses. But also, I would like to emphasise that I

18 learned a long time ago that tu quoque is not an admissible defence in

19 front of this Tribunal. But the purpose of these witnesses is not tu

20 quoque, the purpose of these witnesses as a core, an essence of this case,

21 because the theory of the Prosecution is the Serbs had planned, the

22 Serbs started everything. Through these witnesses we would show the Trial

23 Chamber that the war hasn't been started by the Serbs, that the war was

24 started by the invasion of Croatian regular troops into Bosnia. And

25 that's not the defence as you mentioned, tu quoque. But we also know that

1 the Prosecution does not claim that Dr. Stakic killed, mistreated, or did

2 anything personally to anybody else. This case is a political case in

3 which they try to show that there was a criminal plan. We have to show in

4 any way that there is first that there is no criminal plan at all.

5 Secondly, that Dr. Stakic is not part of that criminal plan. So if we

6 want to show that there is no criminal plan, we have to start from

7 somewhere. And we have decided to start from Bosanski Brod from the 3rd

8 of March, 1992. Because it was a very well covered event in all Former

9 Yugoslavia media. So it's not something which was isolated. And once

10 again, I want to thank you for the opportunity to have these witnesses.

11 And I estimate that if my opening statement would be short, I hope

12 that we might finish the first witness today because it's the longest

13 one. All other witnesses would be shorter, and I'll be able to finish

14 them hopefully -- I tried to clarify actually today whether we work on

15 Thursday or not. So it would help me also to plan. Because I have two

16 schedules. In one Thursday is a working day; and the other one, we are

17 not working on Thursday.

18 MS. KORNER: Your Honour, may I say something before we carry

19 on --

20 JUDGE SCHOMBURG: One moment, please. There's no doubt at all

21 that we will hear this case the entire week, and we have to go into all

22 the details of your filing, especially the final list of witnesses. And

23 we have to go through witness by witness. So therefore, no doubt, we will

24 do the necessary -- what is necessary in a pre-Defence conference. But in

25 order to take care of the witnesses, to take care that the witnesses do

1 not come in vain and they are able to return to their home countries as

2 soon as possible, the Trial Chamber is prepared to discuss the other

3 witnesses not to be heard during this week, to discuss these issues later

4 and not today. But I have to tell the Defence that we warned the Defence

5 that their filings were not in compliance with that what can be expected

6 under Rule 65 ter (g), and we mentioned that there could be some

7 consequences related to 65 ter (n), or other adequate measures mentioned

8 in this decision. And we have to come back to this, and we have to go

9 through both briefs under 65 ter (g). But what I want to avoid is that

10 the witnesses are waiting here whilst we are discussing these issues.

11 Maybe later, but no doubt, we'll hear the case also on Thursday.

12 Please, you were the first.

13 MS. KORNER: Your Honour didn't give me a chance before ruling to

14 expand on our objection, but I think I ought to say this. Your Honour is

15 concerned that witnesses would come here that nobody wants to hear their

16 story. Your Honour, there are cases preceding in this Tribunal

17 prosecuting Croats, prosecuting Muslims. Your Honours, those witnesses

18 could have submitted their testimony or could have been sought in those

19 cases. Your Honours, this is nothing more than a tu quoque Defence, and

20 we don't dispute it. Your Honour, we don't dispute that the Croats in

21 some places behaved as badly as the Serbs. There's a case that's just

22 finished in relation to that. We don't dispute that Muslims behaved

23 badly, and we do not see how a witness from Bosanski Brod can assist

24 Your Honours to arrive at a decision relating to the events in Prijedor

25 and Dr. Stakic's part in them. Your Honour, I've heard your ruling, but I

1 just want to make that absolutely clear that Your Honours having stopped

2 us from going outside the Prijedor region or any part of our evidence,

3 Your Honours we hope that in a rebuttal case Your Honours will now extend

4 us the same leniency and we can lead evidence from other municipalities as

5 well, relevant we would say to the issue. Your Honour, that is not the

6 main complaint at the moment. Your Honour, I don't know what witness has

7 been called today. The summary, there's not a word about Bosanski Brod.

8 I don't know which witness. The summaries are so wholly inadequate as to

9 tell us anything about these witnesses. We have been wholly unable really

10 to do any meaningful search on the information that has been supplied to

11 us.

12 If one takes the first witness, I don't know if that one who has

13 been called at page 14315 of the filing, it appears to be a man who will

14 speak about Croatian regular army troops that entered Bosnia and

15 Herzegovina on the 3rd of March, 2002. I take it that's a typing error.

16 But why, who, what, what town, what area, what events? It's an absolute

17 disgrace --

18 JUDGE SCHOMBURG: May I interrupt you. I already mentioned that

19 we have to go into the consequences of the omission by the Defence later

20 on, and we still have not yet decided on the sanctions foreseen under 65

21 ter (n). My own concern is that maybe there are different glasses. There

22 are hour glasses, and there are the glasses and the views taken by these

23 witnesses coming here to The Hague. And this is only the point bringing

24 the Trial Chamber to allow this, and I used deliberately the word "abuse"

25 in the context of summoning this witness in -- earlier this day.

1 MS. KORNER: Your Honour, all I'm asking is that we should now

2 before any witness is called today, if Your Honour is going to adjourn

3 consideration of this inadequate filing, that we now be told who the

4 witness is, a proper summary of what the witness is going to say, in

5 writing before this witness is called.

6 JUDGE SCHOMBURG: Being aware that we have to have our necessary

7 break immediately, could we hear, what is the time frame you will need for

8 the presentation of your case, first of all?

9 MR. LUKIC: I think a bit more than one hour, Your Honour.

10 JUDGE SCHOMBURG: Right. Could you then tell us, in fact, who

11 will be the first witness and what period of time will it take? And maybe

12 you have prepared a summary that you can read into the transcript right

13 now, that we all, also the Judges sometimes want to prepare to decide on

14 the relevance or not relevance of the one or other question, that we have

15 this in preparation before us.

16 MR. LUKIC: Would it be possible to go to private session, Your

17 Honour, because this should be a protected witness.

18 JUDGE SCHOMBURG: Please, private session.

19 [Private session]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

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 [redacted]

21 [redacted]

22 The trial stays adjourned until 11.20.

23 --- Whereupon the Pre-Defence Conference adjourned

24 at 10.51 a.m.

25