International Criminal Tribunal for the Former Yugoslavia

Page 9371

1 Monday, 25 November 2002

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.20 p.m.

5 JUDGE SCHOMBURG: A very good afternoon to everybody. Please be

6 seated. May we hear the case, please.

7 THE REGISTRAR: Good afternoon. Case Number IT-97-24-T, the

8 Prosecutor versus Milomir Stakic.

9 JUDGE SCHOMBURG: Thank you. And the appearances, please, for the

10 Prosecution.

11 MS. KORNER: Your Honour, Joanna Korner, Nicholas Koumjian,

12 assisted by Ruth Karper, case manager. Good afternoon.

13 JUDGE SCHOMBURG: Also the Defence team in the entire composition.

14 MR. LUKIC: Your Honour, good afternoon. Branko Lukic, John

15 Ostojic, and Danilo Cirkovic for the Defence.

16 JUDGE SCHOMBURG: We have a number of difficult issues on the

17 agenda. May I first announce two things: As to the character of the

18 issues to be discussed today, this is an ongoing hearing today and not a

19 Status Conference. And secondly, you may have heard on the corridors that

20 the President of this Tribunal has decided that the plenary would not take

21 place as envisaged the 2nd and 3rd of March, but 11, 12, and 13

22 December -- sorry. It should read December also, 2nd, 3rd December in the

23 transcript. But we can't follow these in and out decisions. And

24 therefore, this Trial Chamber has decided to continue. I know, and we are

25 all aware, that we still have to decide on the motion on mistrial. But in

Page 9372

1 principle, to proceed as envisaged in the entire week of December until,

2 in case we proceed, the ten witnesses are -- not the witnesses are

3 exhausted, but the list of witnesses is exhausted.

4 So as already indicated last Friday, let us please start, for

5 reasons we just discussed, with the list of witnesses that should be

6 concluded today. Then we have on our agenda for today the motion on

7 mistrial. Then we have to discuss the question of experts. And then

8 maybe in this order, the question whether or not the Defence has lived up

9 to their obligation under Rule 65 ter (g), and in case if not, we expect

10 submissions by the parties on possible reactions to this fact.

11 But let us please start, and I think it seems to be a relatively

12 short exercise, with the finalisation of the list of witnesses. As

13 already indicated, only those witnesses will stay on the list, on the

14 so-called final witness list, where it can be demonstrated today that the

15 expected testimony is not irrelevant or repetitive.

16 May we start with the first one, which in my list, should be

17 number 5.

18 MR. LUKIC: Yes, Your Honour.

19 Are we in private session?

20 JUDGE SCHOMBURG: Private session, please.

21 [Private session]

22 [redacted]

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7 [Open session]

8 JUDGE SCHOMBURG: And may I ask the Defence, we received the two

9 motions to summarise the motions. Please, Mr. Ostojic, the floor is

10 yours.

11 MR. OSTOJIC: Thank you. Good afternoon, Your Honours. We have

12 filed with the Court two motion which are the initial motion, then the

13 supplement as requested and as we envisioned in connection with the motion

14 for mistrial. It is a difficult motion to present on behalf of the

15 Defence because quite frankly the Defence from the outset has felt that we

16 have worked well with the OTP, and now in hindsight, quite frankly, we

17 believe that we have been misled and betrayed by the OTP. Specifically I

18 believe that this Court is required to examine as highlighted in our

19 motion and to determine what is the standard for which a mistrial can and

20 should be granted. The rules do not envision, and do not give us those

21 factors. I would suggest to the Court that one or more of the following

22 four certainly warrants that a mistrial be granted.

23 One, if there is a willful withholding of relevant information

24 which would impede justice. Two, intentionally concealing evidence which

25 would otherwise ensure a fair trial. Three, knowingly and selectively

Page 9385

1 presenting evidence which is tainted, spoiled, or misleading. And four,

2 deliberate omissions when confronted not only by the Defence but by this

3 Trial Chamber of critical issues that are brought before the Court through

4 the various witnesses. In the instant case, I was quite surprised that

5 the OTP continues to be indifferent and callous in its approach to the

6 misdeeds that they have committed. Last week on the 21st of November,

7 they clearly state that they recognise and acknowledge that the production

8 of those Rule 68 documents should have been produced as the decisional

9 authority dictates in a timely and proper manner, meaning that they should

10 have been disclosed well before the start of this trial; at the very

11 least, during the trial. But most certainly before the Rule 98 bis

12 motions were filed.

13 To claim, as the OTP does, that "in their opinion certain

14 witnesses were less than credible" is neither comical nor a tragic comedy

15 but it is in our opinion a mockery of the Defence, a mockery of the

16 justice system, and a mockery of the Tribunal. It is not for the OTP to

17 decide, I say respectfully to them, which witnesses may or may not be

18 credible. It is for this Court to decide that. It is for the accused

19 through his counsel to test the veracity of each witness presented by the

20 OTP. We submit that the OTP has not only violated one of the foregoing

21 four bases for a mistrial, but in fact all four. They have been willfully

22 withholding evidence. They have been intentionally concealing such

23 evidence. They have knowingly and selectively presented evidence which in

24 our opinion is tainted, and they have made deliberate omissions.

25 We the Defence do not pass judgement on the OTP's ethics or their

Page 9386

1 procedural missteps. We however request this Trial Chamber to tell us

2 what is it that constitutes a fair trial, and therefore we request that

3 Dr. Stakic be given that fair trial. We therefore respectfully request

4 that the OTP's attempt to apologise and to minimise the effect of their

5 transgressions is simply placing a bandage on a mortal wound. The OTP

6 admits that its disclosure was not prompt. It admits that its disclosure

7 was note proper, to both the statements as well as the exhibits that

8 should have been proffered earlier.

9 We believe respectfully that the next question the Court should

10 examine, after examining what are the standards that dictate and warrant

11 that a mistrial be given, and is that is what is the prejudice suffered by

12 the accused? The prejudice we believe, as the OTP very well knows, is

13 obvious. The OTP knows and the Defence has from the outset of this case

14 insisted that the accused get a fair trial. That is the fundamental

15 prejudice that has been deprived and denied Dr. Stakic. Dr. Stakic also

16 has other fundamental rights that are guaranteed by this Tribunal that

17 this Chamber must protect. That is, that he has a right to confront

18 through his counsel people who make accusations against him. He has a

19 direct right to cross-examine witnesses. We have been deprived of that

20 right by virtue of these late, untimely, and incomplete disclosures.

21 Dr. Stakic also has a right to remain silent. Another right that

22 obviously, because of these late disclosures, he has been deprived.

23 As cited in the decisional authority in our brief, namely OTP

24 versus Furundzija and OTP versus Delalic, the Defence submits that we were

25 deprived of our right to adequately prepare our Defence, deprived the

Page 9387

1 right to have data that would assist us in the preparation not only in the

2 cross-examination of OTP witnesses, but have been deprived the right to

3 prepare witnesses which we expect to bring in the Defence case in chief.

4 Several examples of the OTP's transgressions perhaps may highlight the

5 severity of that which they have done. Some in the past and certainly

6 these now in the present. And I say with confidence, since this morning

7 we received yet another Rule 68 statement and documents, that there will

8 be those transgressions in the future. But to highlight for the Court how

9 we have been prejudiced, the past, by way of example, one witness, their

10 purported military expert, took the stand. Gave the solemn declaration.

11 Proceeded to tell this Court and insisted to tell this Court that he was

12 objective. During, not before, during his testimony, the Defence received

13 in excess of 90 exhibits, all military related exhibits, that this witness

14 never even reviewed. And we're speaking of Mr. Ewan Brown. How can the

15 Defence prepare to cross-examine a witness or to even argue that his

16 credibility should not be accepted by this Court if, upon his insistence,

17 he claims he's objective, believes he's objective, yet the OTP refused, as

18 I stated earlier intentionally, knowingly, and deliberately concealed

19 material which is relevant in their opinion and the opinion of the

20 Defence, and since the Court admitted those documents, in the opinion of

21 the Chamber as well.

22 We were deprived to have an opportunity to review that material,

23 deprived to have an opportunity to cross-examine this witness on those

24 90-plus documents. That was their past transgression. The OTP at that

25 time also stated that they felt bad, and that they were sorry. No

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Page 9389

1 sanction imposed; a warning to produce all such documents as required

2 under the rules. The OTP continues in its indifference, and now in the

3 present, if we take a look at the documents that they have produced to

4 you, it is not a question of the five or so individuals that were members

5 of the Crisis Staff, our highlights 30 witnesses who contradict, who rebut

6 the testimony of the witnesses that they called in their case in chief.

7 It is those 30 witnesses that also cause us concern. However, to

8 highlight the present transgression, they take a statement of Slobodan

9 Kuruzovic. At what time? After the testimony of Witness Q? Hardly.

10 Well before. They, in fact, question Mr. Kuruzovic about the testimony

11 given by Witness Q. They question him on issues, since they had her

12 statement prior to her testimony, they don't offer that to the Defence

13 because they themselves have deemed it to be one of two things:

14 Irrelevant or not credible.

15 Rule 68 envisions three specific purposes for which the OTP is

16 mandatorily required to produce statements, documents, and other evidence

17 to the Defence. Those three reasons, as I'm sure the Court knows, are the

18 innocence of the accused. If they are in possession of evidence which

19 would show the innocence of the accused, they should produce it. When,

20 not when it dawns on them to produce it. As soon as possible or as soon

21 as practicable. They have done neither.

22 The second option that they have in which they are required to

23 produce evidence is if there is any evidence to mitigate, mitigate, the

24 guilt of the accused. Likewise, they failed to do that and did not meet

25 their obligation.

Page 9390

1 Third, and I must highlight it because I used it in the example of

2 the present transgressions, they are compelled and required to produce

3 evidence which would or may attack the credibility of any witnesses or

4 evidence that they present. The most classic case would be Witness Q

5 testifying about crimes that have occurred personally to her. The OTP

6 having Mr. Kuruzovic's statements and not providing that to us. We were

7 asked by this Trial Chamber whether or not we would cross-examine Witness

8 Q on the crimes that she has sustained. And we told the Court at that

9 time truthfully "we don't have evidence that would assist us to determine

10 whether or not she is credible or not on that issue." Specifically, a

11 discussion was held on that, and the OTP represented to the Court that

12 they believed she is credible, meaning that they didn't have any evidence

13 to suggest any contrary indication. Yet, throughout the entire period,

14 they continued to have Mr. Kuruzovic's testimony, which is obviously

15 contradictory to what Witness Q has said.

16 I can't tell the Court, nor no one can envision what the future

17 transgressions will be. But the Defence certainly, as I started in the

18 opening remarks, feel most definitely betrayed. The Defence jointly has

19 made representations to Dr. Stakic, and we have told him that the Tribunal

20 will treat him fairly and that his fundamental rights will be secured. We

21 continue to tell Dr. Stakic, throughout the proceedings, that the OTP is

22 acting in a manner with great professionalism and honour and dignity. I

23 retract those statements that I made to Dr. Stakic about the OTP.

24 Dr. Stakic was misrepresented by the Defence. The Defence assured

25 Dr. Stakic that he would be given a fair trial. We believed that all the

Page 9391

1 documents were presented to us, at the very least, those critical

2 documents which go to specific ingredients of each of the eight counts in

3 the fourth amended complaint. We insisted that Dr. Stakic waive his right

4 to have a new trial when asked by the Court under the circumstances that

5 presented itself. We were wrong. Dr. Stakic, I believe, has a right to

6 revoke and has a right to restate his position based upon these current

7 events, based upon these current transgressions by the OTP. And we

8 believe he should be given that right.

9 Dr. Stakic relied on his detriment when we represented to him that

10 he would get a fair trial. We were simply wrong. It is neither fair nor

11 does it promote justice when either party conceals evidence, specifically

12 evidence which the Court had requested time and time again. We discussed

13 things as the Court recalls, Mr. Baltic and the evidence of possibly

14 Mr. Halilovic and Dr. Plavsic. The OTP stood silent. Was this Court

15 asking them to bring witnesses other than members of the Crisis Staff?

16 Was this Court not clear enough that they requested witnesses who were

17 precise and concrete on the fundamental issues necessary to render a

18 decision? The OTP sat silent, indifferent during the entire time

19 knowingly concealing the evidence which the Court requested, which the

20 Defence demanded, which it never received. Interestingly enough, during

21 our summer pause, the OTP again proceeded on a mission, and they took

22 another statement of a witness at which point, despite the fact that the

23 parties were arguing over various things, various disclosures, the OTP sat

24 on its hands again. The rule specifically states and is very clear that

25 they must advise us and tell us about the evidence. Their simple excuse

Page 9392

1 that there was a translation delay or a problem in translating the tape is

2 not an excuse that should be accepted in any Court, much less this

3 Tribunal. At the very least, we would have expected, and at the very

4 least the rules require, and they use the word "shall" mandatorily require

5 the OTP to either tell us verbally or in writing that they are in

6 possession of such evidence and at that time that may be convenient or as

7 soon as practicable they will produce that to us. They have done neither.

8 They failed in their obligation. The Defence has failed to read the OTP's

9 strategy and gamesmanship in advising Dr. Stakic. A fair trial has not

10 been given to date. A fair trial by proceeding in my opinion will not be

11 given to Dr. Stakic. And we demand respectfully from this Court that you

12 examine those five disclosures that they have presented, not the five

13 witnesses from the Crisis Staff, but the five independent disclosures and

14 determine whether or not there was a breach and extent of the prejudice to

15 Dr. Stakic.

16 Finally, if I may add, the OTP has called many what they coin

17 "in-house witnesses." We heard from Mr. Inayat twice. We have given

18 him, and we are very flexible, although he has prepared for many years on

19 this case since he was the team leader, et cetera, we asked them directly

20 about Rule 68. Team leader, criminal investigator, wealth of experience,

21 took the solemn declaration, sat silently. Could have easily got up.

22 Could have easily discussed it with Mr. Koumjian or anyone at the OTP

23 based upon what the Court's inquiring, based upon the order that the Court

24 gave on that date that we should comply at the very least with giving the

25 Defence notification of the statements and witnesses of the members of the

Page 9393

1 Crisis Staff in our possession. Instead, they merely continued to flood

2 this Chamber with in-house witnesses. They refused to comply with the

3 rules, but demand and insist that the Defence at all times be prompt and

4 ready to proceed. I believe the Defence was ready and did proceed at each

5 and every occasion, and we believe that we did cross-examine the witnesses

6 to the extent available to us. However, and unfortunately, that was not

7 enough. The fact that we cross-examined witnesses does not absolve their

8 transgressions and does not and cannot mitigate in any way the rights of

9 Dr. Stakic. He had a right, as all accused do in this Tribunal, to the

10 presumption of innocence. He had a right to a fair trial. He had a right

11 to confront the witnesses that the OTP brings against him. All those

12 rights were denied by virtue of their conduct.

13 We respectfully request that the Trial Chamber grants our motion

14 for a mistrial and that this trial, although I recognise that judicial

15 economy may weigh against restarting it, I am confident that many of the

16 witnesses that the OTP has called they will probably not call again. I

17 think that we cannot look at economy to make a decision if a man's

18 fundamental rights and his right to freedom can ever be outweighed. And

19 as it is this Trial Chamber's unfortunate duty to have to make this

20 ruling, we insist and believe not only has there been a transgression that

21 has been admitted to, it is severe and constitutes and warrants a

22 mistrial, but also there has been severe prejudice suffered by Dr. Stakic.

23 Thank you, Your Honours.

24 JUDGE SCHOMBURG: Thank you for this additional oral explanation

25 of the two motions we have before us. Only to be clear, for the record,

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Page 9395

1 to be decided is only the request following paragraph 44 of the Defence

2 motion of November 15, 2002, under (a), because unanimously the other

3 points, (b) to (e), were declared moot. But I think to a certain extent,

4 they are included in this main request to order mistrial. So therefore,

5 the submission and the response by the Prosecution should be limited to

6 this number -- to this letter (a) of the motion. And finally, just that

7 the transcript reads correct, I think you wanted to say in page 18, line

8 1, the fourth amended indictment where as it reads as you stated first

9 amended complaint. This should be corrected. Thank you.

10 Please.

11 MS. KORNER: Your Honour, I have sat and listened to many

12 insulting speeches in the course of my career. But I don't think I've

13 ever listened to one quite as vulgar, quite as insulting as that just made

14 by Mr. Ostojic. Without one iota of grounds for alleging that myself and

15 Mr. Koumjian and anyone else involved in the OTP have adopted an

16 indifferent and callous willfully concealing and gamesmanship are the

17 other adjectives that he employs. Your Honour, everything that he has

18 said today could have been said without these unnecessary allegations

19 of misconduct. Your Honour, I am not going to go through what I said to

20 Your Honour last week when Mr. Ostojic couldn't be bothered to come and

21 support his own motion clearly written by him and unknown or unsupported

22 by Mr. Lukic who was unable to explain what should happen.

23 When I gave a long list of the reasons and the number of documents

24 that we had gone through in order to try and comply with Rule 68. And

25 without, of course, as Your Honour knows, a scintilla of assistance from

Page 9396

1 the Defence as to what it was they wanted us to look for. Your Honour,

2 all I want to say is this: In this lengthy hyperbole from Mr. Ostojic, he

3 hasn't actually pointed to one iota of prejudice that has been caused to

4 Dr. Stakic. What is it he says that he would have asked the various

5 witnesses who he has listed who referred in passing to some of these

6 people that were interviewed had he had the Rule 68? Your Honour, the

7 remedy, and we have always accepted it was an oversight. It was

8 unfortunate. But it was not done deliberately or with malice or any of

9 the phrases used by Mr. Ostojic. The remedy is a simple one, not one of

10 mistrial. Is that if Mr. Ostojic or Mr. Lukic wish to put to these

11 witnesses who have testified matters arising from the disclosure that was

12 made to them subsequent to the testimony, then we will arrange to have

13 those witnesses recalled. Not in one single paragraph has Mr. Ostojic

14 suggested that there was other questions he would have asked.

15 Now, Your Honour, that is the simple, obvious remedy. As to

16 whether it was a remedy that should have been required in the first place

17 is another matter. All of these people were obvious potential Defence

18 witnesses. I anticipate that I don't imagine we'll be told the truth

19 about that, that these witnesses were seen by the Defence in any event.

20 All of these matters could have been dealt with before, and if required,

21 we will recall those witnesses. Your Honour, that is, we say, the proper

22 remedy, not a new trial.

23 JUDGE SCHOMBURG: I think it's necessary that we discuss this

24 issue exhaustively. Is there any response by the Defence?

25 MR. OSTOJIC: Yes, Your Honour, if I may. I didn't use the word

Page 9397

1 malice. I think it's a good word. And I think the OTP knows what it

2 means. And it knows when it applies. The OTP may feel offended at what

3 was said, but they certainly are not offended as officers of the Court to

4 tell this Court the liberty of an accused is being deprived, that his

5 rights are in jeopardy. Where was Ms. Joanna Korner when I shared with

6 the Court that Rule 68 specifically requests three reasons why they should

7 give us evidence. One being the credibility of witnesses. Where was

8 Ms. Joanna Korner when I identified Witness Q who accused Slobodan

9 Kuruzovic of crimes? Mr. Cayley and Ms. Sutherland when they were here,

10 if we look at the transcript, they certainly told the Court. We believe

11 in the witness's credibility. And that should be good enough. The

12 prejudice I dare say to Ms. Korner is that Dr. Stakic's liberty is at

13 stake. This is not a game that we can merely cure defects or flaws that

14 occur because of what they call unintentional production of documents.

15 We, the Defence, believe we have been reasonable. We have been tolerant.

16 If this Trial Chamber did not specifically ask us and ask the OTP to

17 present precise and concrete witnesses which are relevant such as other

18 accuseds, such as other individuals who are potentially indicted, perhaps

19 they can hide behind that mask and say "we just didn't know we were

20 supposed to produce such documents." They knew. The OTP as a unit knew.

21 The Decisional authority and the Chamber in Delalic and Furundzija

22 certainly knew and warned them. Presumably they read that decisional

23 authority. Presumably they knew that there are things such as parity

24 between parties that is a right. That there's the equality of arms issue

25 that other appellate decisional authority has not only discussed but

Page 9398

1 mandated that we be given. But maybe each of the trial counsel here were

2 not present when this Court discussed equality of arms. Another

3 oversight.

4 Call it what you will, an oversight, a misstep, or as I do in my

5 personal and objective opinion, an intentional knowing concealment,

6 deliberate concealment, of evidence. It is a transgression that deprived

7 Dr. Stakic of his rights. The OTP always, since the outset, has shifted

8 the burden to the Defence, have continuously wanted us to meet a certain

9 level and burden of proof. They continue to do so even on this issue by

10 stating that we should exhaustively write out the questions, exhaustively

11 identify the witnesses, exhaustively share with the Court what other

12 testimony witnesses should be asked. I dare say that if the OTP has

13 reviewed our supplemental submission, we list in excess of 20 witnesses

14 which we would like to cross-examine again, which we believe that this

15 Chamber has a right in order to weigh their credibility and veracity.

16 Specifically all those witnesses who were in-house that the OTP

17 conveniently works with and brings in in each and every trial, I'd like

18 the Court to examine the veracity of all their witnesses. We heard from

19 Mr. Nicolas Sebire who couldn't even remember two weeks ago prior to his

20 testimony how much time he spent in preparing tables and documents that

21 the Court asked for and requested. On all their expert testimony,

22 starting with their first witness, in fact, I stand corrected, starting

23 with Ms. Joanna Korner's opening remarks where she mentioned this

24 complicity, this conspiracy, this joint enterprise, and identifies

25 Mr. Srdo Srdic and others on the Crisis Staff, on April 16th, 2002.

Page 9399

1 Perhaps she didn't know that they had the statements and the tape

2 recordings of the members of the Crisis Staff when she gave that opening

3 statement. At some time, I would think, that she should have, as the

4 rules envision, contemplated at least a simple phone call to identify

5 those witnesses and to tell us that they have been called. The first

6 witness Robert Donia gives a complete theory on issues such as "atmosphere

7 of fear." He discusses the arming of Muslims and paramilitary units.

8 Obviously based on the 30 lay witnesses that we have, that they have had

9 for years, not giving it to the witness, may, although we might debate and

10 doubt it, may change his opinion. But at the very least, had he reviewed

11 that, had we had an opportunity to cross-examine Mr. Donia on that, the

12 Court would have been better assisted in weighing his credibility.

13 The right to a fair trial has been denied regretfully. I

14 personally stated that we do not and will not attack the ethics or the

15 procedural missteps of the OTP. We insist merely that they comply with

16 the rules and that they ensure that Dr. Stakic get a fair trial which he

17 was deprived. The prejudice is his liberty; the prejudice is the right

18 that he had to confront and cross-examine witnesses; the prejudice is the

19 tainting of testimony by calling in-house witnesses and giving him

20 selective materials to review in order to give an opinion on. That is the

21 prejudice. We have been denied all the rights that we are entitled to.

22 That prejudice cannot be cured simply by having us write down questions so

23 that the witness can answer them in a vacuum, whether the Court can now in

24 hindsight recollect the witness's mannerism and credibility from this

25 stand. That will always be something that cannot be brought back, despite

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Page 9401

1 the fact that most of their so-called in-house experts can be brought I'm

2 sure with relative ease. It is important that the Trial Chamber heard

3 that evidence in its proper context and not in a vacuum. We submit that

4 it is clear not only that there have been transgressions, it is clear that

5 the standards for a mistrial have been met, and it is unequivocally clear

6 that Dr. Stakic suffered severe prejudice in the proceedings in light of

7 these most recent submissions under Rule 68 given to the Defence. So we

8 again ask respectfully of the Chamber not to weigh the economy of the

9 issue, not to weigh the expediency of when trials should or should not be

10 concluded, but to sincerely protect the rights of the accused and to grant

11 us this mistrial. Thank you, Your Honour.

12 JUDGE SCHOMBURG: Before I ask the Prosecution whether or not they

13 have some arguments in rejoinder, I want to ask the main person in this

14 case, and this is as I emphasised from the beginning of this case, the

15 accused Dr. Stakic: What is his personal opinion on this request for

16 retrial what, in fact, would mean to hear all the witnesses once again,

17 the mere use of these first of all five to six statements we have in

18 addition when balancing his own interests? I want to give, for reasons of

19 fairness, the Defence the possibility to discuss this issue briefly with

20 the client before the client may state whether or not he wants to respond

21 to this question.

22 [Defence counsel and the accused confer]

23 MR. OSTOJIC: Your Honour, as in the past, Dr. Stakic's accepts

24 the Court's invitation and can answer the Court's question if it so

25 wishes.

Page 9402

1 JUDGE SCHOMBURG: Dr. Stakic, may we hear your position, balancing

2 your own interests as indicated before.

3 THE ACCUSED: [Interpretation] Good afternoon, Your Honours.

4 Although I'm not too familiar with law in general, I can only state that I

5 fully support the claims and requests made by my Defence team. What I

6 have been able to understand from all of this is that I have suffered a

7 great amount of prejudice.

8 JUDGE SCHOMBURG: Thank you for this concrete answer. May I then

9 invite -- you may be seated please once again.

10 May I then invite the Prosecution for, if they so want, an

11 additional response, maybe including the question whether or not at any

12 point in time the Prosecution intended to prepare a case against one of

13 the six persons from which we got the six statements and whether they are

14 preparing a case against one of these six persons in the future.

15 MS. KORNER: Your Honour, I can't answer that. And it's not a

16 question that Your Honour should require of me either.

17 JUDGE SCHOMBURG: I think the second -- as to the second question,

18 that's correct. But as to the first, it might be a reason. And of

19 course, as we did it always, we should frankly discuss these issues here.

20 And of course the question is for the Trial Chamber why Dr. Stakic, why

21 not one of these others?

22 MS. KORNER: Your Honour, you came back -- and I don't think with

23 the greatest respect it's relevant to the issue as to why Dr. Stakic and

24 not these. But --

25 JUDGE SCHOMBURG: Therefore the question. Did you ever intend in

Page 9403

1 the past? You have not to answer for the future. But did you ever intend

2 in the past to indict one of these six persons?

3 MS. KORNER: Your Honour, my recollection, and I wasn't here when

4 all these indictments were issued, is that indictments were issued against

5 anybody who ever moved, and some were then withdrawn. But the answer is I

6 don't know whether they were ever to be indicted.

7 Your Honour, but we don't rely in any event. We accept, and I

8 want to make it absolutely clear because Mr. Ostojic seems to now be

9 suggesting that we don't know what constitute Rule 68. We appreciate that

10 contained in those interviews is material which potentially Rule 68.

11 There's no question that we didn't know it. What unfortunately, and I've

12 explained this Your Honour over and over again, and I may say I'm deeply

13 unmoved as to whether Ostojic accepts my word or not, is that it fell

14 through the cracks. Now the real question is, and again, Your Honour,

15 Mr. Ostojic says the prejudice is the fact it wasn't disclosed. No, Your

16 Honour. You have to show that in some way that information could have

17 been used or would have been available to have cross-examined a witness in

18 a different way and might have made a different result. The mere fact of

19 nondisclosure in itself is insufficient. Prejudice means exactly what it

20 says. What has the Defence not been able to do that they would have been

21 able to do had they had this information at the relevant time? And how is

22 it said that the use of that information may have affected the outcome of

23 Your Honours' decision on Rule 98?

24 Now, Your Honour, that in our submission is the real meaning of

25 prejudice. It's not simply good enough to say "we didn't have it, so we

Page 9404

1 were prejudiced." And as I said to Your Honour, the remedy is not a

2 mistrial, but simply for the Defence to let Your Honours know and to let

3 us know to have the witnesses recalled so they can put the questions.

4 Now, Your Honour, I simply do not understand the reference to

5 in-house experts such as Mr. Brown and Mr. Sebire. The Rule 68 material

6 had nothing whatsoever to do with their evidence whatsoever. In

7 particular, complaint was made that there was disclosure of 90 military

8 documents when Mr. Brown began his evidence. I simply don't see -- and

9 it's not mentioned in the motion. It's as I say the scatter-gun approach

10 adopted by Mr. Ostojic to throw as much mud as possible and hope that some

11 of it will stick somewhere.

12 Your Honours, I don't think we can take this much further. As far

13 as the witnesses are concerned, we are entitled to say this -- I'm sorry

14 the persons we interviewed: What they had to say about things that

15 happened conflicted with what witnesses that we were calling had to say,

16 and we took the view not that this should be disclosed to the Defence, and

17 as I say it fell through the cracks, but these are not witnesses upon whom

18 the Prosecution can rely. I know that Your Honour feels that all

19 witnesses should always -- all persons who are involved in the event

20 should be brought before the Court, but that isn't the system. It's no

21 more the system for the Prosecution than it is for the Defence.

22 So Your Honour, that is the situation. But as I say, the cure, we

23 would submit, is for the -- any witness that the Defence feels that they

24 wish to put further matters to, to be recalled.

25 JUDGE SCHOMBURG: Thank you. I have the impression that --

Page 9405

1 THE INTERPRETER: Microphone Your Honour, please.

2 JUDGE SCHOMBURG: Sorry. I have the impression that the issue at

3 stake has been discussed exhaustively now, and it's now for the Trial

4 Chamber to decide. We'll see what will be the possible time frame for the

5 decision during the break. And I think it's also necessary to have a

6 break now. The trial stays adjourned until 4.15.

7 --- Recess taken at 3.41 p.m.

8 --- On resuming at 4.15 p.m.

9 JUDGE SCHOMBURG: Please be seated.

10 The Trial Chamber is aware that the decision to be taken is an

11 important one, on the one hand; and second, an urgent one. So we'll do

12 our best, if possible, to decide already today. But it depends on the

13 question whether or not we have during a longer break time enough for

14 continuing deliberations.

15 MS. KORNER: Can I just, before Your Honour moves on, correct or

16 mention two matters that Your Honour asked me about. The two people.

17 JUDGE SCHOMBURG: Arsic and Zeljaja.

18 MS. KORNER: Yes. The answer is, they are thought to be in

19 Serbia. But they're not in-- and we did issue summons and it doesn't look

20 as though they were served. That's the best we can do. And as with

21 Kuruzovic, Your Honour, he was summoned as a suspect. In other words, he

22 was asked whether he wanted to have a lawyer there, so it's right to say

23 that we were, well, the consideration has and it will be given to whether

24 he should be indicted.

25 JUDGE SCHOMBURG: Thank you for this clarification but to be on

Page 9406

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13 English transcripts.

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15

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25

Page 9407

1 the safe side, let me know it is still the case that the Prosecution does

2 not object summoning this witness by granting safe conduct.

3 MS. KORNER: Well, the answer to that, Your Honour -- I think we

4 wouldn't want to give them safe conduct because we would like to

5 potentially arrest them. But if Your Honour wants to call them and give

6 them safe conduct, there's not much we can do about it.

7 JUDGE SCHOMBURG: I asked previously I think already twice whether

8 or not there would be objections to granting safe conduct. And at that

9 time, the answer was always a clear yes, no objections.

10 MS. KORNER: I'm sorry, Your Honour, to those particular

11 witnesses?

12 JUDGE SCHOMBURG: Right.

13 MS. KORNER: Then, Your Honour, I'm sorry, I didn't appreciate

14 that's been said. In this case if that has been said then I won't try and

15 resolve from it. Your Honour, I hadn't understood that had happened. I

16 won't resolve from that then.

17 JUDGE SCHOMBURG: I only wanted come to back to Mr. Kuruzovic in

18 special because you now mention that he was summoned as a suspect, whether

19 this would change your attitude. But once again, do you object summoning

20 him and at the same time granting safe conduct?

21 MS. KORNER: Your Honour, if undertakings have already been given

22 on behalf of the OTP that we don't object, then I'm not going to object

23 now. And I say that subject to that.

24 JUDGE SCHOMBURG: And this is I take it a final decision.

25 Then leaving the question open what would be the outcome of the

Page 9408

1 motion by the Defence, we have to try nevertheless to find out in case we

2 proceed what are the witnesses. And now, the experts to be summoned. And

3 therefore, let's come back to the so-called final witness list.

4 I recall that in the past, the Trial Chamber already granted two

5 expert witnesses. And it has not yet been decided by the Defence who

6 should serve as the historian, and who should serve as the military expert

7 as granted in the Chamber's decision dated October 8, 2002. And

8 additionally, I recall that as regards a handwriting expert, forensic

9 handwriting expert, we stated that a second expert on an identical issue

10 may only be called to testify where it can be shown that he or she

11 possesses superior knowledge, expertise, or methods of working. So this

12 in mind, I want to ask the Defence now to concentrate first of all on

13 these two already admitted experts. Then let's go to the handwriting

14 expert. And then to the others. And in -- as regards now the experts,

15 the Trial Chamber will decide in a parcel solution when having heard your

16 submissions and, of course, the right to be heard, further submission by

17 the Prosecution as regards the other experts.

18 Let's start with the academic historian.

19 MR. OSTOJIC: Good afternoon once again, Your Honour. John

20 Ostojic on behalf of the Defence. With respect -- we are orally

21 requesting the Chamber to revisit and reconsider its order limiting the

22 Defence to two experts as requested and at the time, we identified

23 potential witnesses and potential experts we felt were necessary in order

24 to establish the appropriate Defence for Dr. Stakic. The Court very well

25 knows that the OTP has called in excess of two experts, despite the fact

Page 9409

1 that they are in-house, to testify before the Court. We think we should

2 not be limited to having only two experts, specifically and in light of

3 the 98 bis order that the Court has presented to us, namely that all the

4 counts in essence continue to survive following the OTP's case in chief.

5 Having said that, the Defence identifies as we have orally to the

6 OTP Srdja Trifkovic as the academic historian who will testify on behalf

7 of the Defence. However, it should be noted that the materials, and once

8 this report is completed, we will most certainly supply the Prosecution

9 with the materials that Mr. Trifkovic relies upon as well as the exhibits

10 that he relies upon, including that of who we wish to call, and that would

11 be James Bissett. He would be having his report I believe also to rely

12 upon. If the Defence makes a decision to call the Honourable Bissett, we

13 will inform the parties accordingly. But at this time, our decision is

14 that Dr. Trifkovic will be the academic historian.

15 In addition, we would like to advise the Court that there may be

16 some items that, like the OTP's expert witnesses, that are more of a

17 factual nature and backdrop that Dr. Trifkovic will testify upon. As we

18 identify in our submission to the Court, pursuant to 65 ter, he will

19 discuss also issues ranging from this purported plan or conspiracy, the

20 widespread and systematic attack that allegedly may have occurred. He

21 will also discuss in detail the theory of joint criminal enterprise from a

22 factual standpoint as well as from a historical expert standpoint.

23 JUDGE SCHOMBURG: Before I give the floor to the Prosecution, I

24 wanted to point out and to recall that the Defence should be aware, first,

25 that the Trial Chamber is extremely hesitant to make use of academic

Page 9410

1 historians related to other issues than that what happened in the period

2 relevant for the fourth amended indictment and the period of time

3 immediately before. To a certain extent, coming back to and testify on

4 the background or against the backdrop of the traumatic experiences in

5 World War II. But it has to be limited to this area, and especially to

6 Prijedor, and please recall that we admitted into evidence as regards

7 Mr. Donia only this part of his testimony after long debate with the

8 Prosecution.

9 Second, as regards joint criminal enterprise, and this will also

10 be true for the next expert you mentioned here in your so-called final

11 list of witnesses all the legal questions, you mentioned joint criminal

12 enterprise. From the legal point of view and the three categories there

13 established in the jurisprudence of this Tribunal, the Trial Chamber will

14 not allow an expert to discuss these issues here because the old Roman law

15 rule applies "iudex novit curia," the judge knows the law. And therefore,

16 we do not need legal experts. And as we also limited the Prosecution

17 regarding historians to one only, and in this limited framework elaborated

18 just previously, it's for the Defence to decide when you have once decided

19 to summon Mr. Trifkovic as your academic historian, then this will be the

20 end and no other additional historian will be admitted.

21 MR. OSTOJIC: Just a point of clarification if I may, Your Honour,

22 yes. If the Court recalls, many witnesses testified about the history in

23 the region. And the OTP insisted on obtaining evidence from witnesses

24 dealing with ARK and other matters in a general sense. We understand the

25 Court's instruction and we appreciate it. We will keep it to a limited

Page 9411

1 extent. However, there may be some instances where it's necessary to

2 relate back, for example, when Mr. Bernard O'Donnell, another in-house

3 expert testified, among other things, they talked about Dr. Stakic's

4 family and they talked about World War II, that Dr. Stakic suffered

5 items. So to keep it in context, left alone, that would unfortunately,

6 in my opinion, hamper the Defence to say that there was some retaliation

7 by Dr. Stakic as a result of that. That's not the case. It was presented

8 by the OTP, although it's irrelevant. It was offered to the Court on that

9 specific issue. But I do understand the Court's concern. We will not go

10 back in history and revisit World War II or any other war involved in

11 that region. We will confine our evidence primarily and specifically to

12 that in the region of Prijedor. However, I must say that we will have to,

13 because of the issue of joint criminal enterprise, expand and touch upon

14 ARK to the degree but no more than the OTP has.

15 JUDGE SCHOMBURG: May I say that I can't see any problem with that

16 what you just said. Already earlier, I mentioned World War II. And as

17 far as we heard until now, it's especially related to the family of

18 Dr. Stakic. And therefore, in the framework of what we heard from the

19 side of the Prosecution, no doubt it has to be touched upon by your

20 historian. And the same is true for the ARK question, because it is your

21 intention, if I understand it correctly, to contest that what has been

22 written down in our 98 bis decision where we, to quote from the top of my

23 head, stated that what allegedly happened in Prijedor was allegedly

24 embedded in a broader movement in the region related to certain other

25 municipalities as well. So therefore, in this framework, no doubt the

Page 9412

1 historian may testify. But please don't go back to the tribes in the

2 sixth century.

3 So this is now the historian. The military expert.

4 MR. OSTOJIC: Yes, but if I may, with the Court's permission, just

5 address one other issue that the Court mentioned involving I think the

6 constitutional law, and I think the Court mentioned that we don't want the

7 historian to discuss the legal issues. Our historians, despite the fact

8 that some of them may have legal backgrounds, will not discuss the law.

9 But I would like to take the opportunity now just to address to the Court

10 the necessity in our opinion of a constitutional expert. It is not, and

11 if I may, Your Honour, proceed, it is not that we are calling an expert so

12 that they can give this panel a survey of the decisional authority of this

13 Tribunal. The allegations in the fourth amended complaint are both de

14 facto and de jure. They are saying that the legal obligations that

15 Dr. Stakic as president of the Crisis Staff, as president of various other

16 bodies and institutions, had a legal obligation, whether to prevent or to

17 stop crimes that occurred in the region. We believe, in light of the

18 testimony and evidence presented by the OTP, there was no evidence

19 involving de jure; yet, regretfully the count and those allegations still

20 remain. For this panel to appreciate respectfully and understand what the

21 legal obligations of a Crisis Staff are, what the legal obligations are of

22 a president of a municipality in Yugoslavia, it is necessary for there to

23 be a constitutional law expert to inform the Court of those obligations,

24 rights, and limitations. So we are not calling an expert just so that the

25 record is clear to assist the Court in reviewing the decisional authority

Page 9413

1 here. We are calling an expert to assist the Court in determining issues

2 that are critical and alleged against Dr. Stakic, namely on the de jure

3 allegations, which unfortunately appear in its entirety through counts 1

4 through 8 of the fourth amended indictment.

5 For the Court to understand, we would have the expert specifically

6 talk about the local self-governing administration and government as it

7 applied in 1992 in Prijedor relating to Dr. Stakic. But now if I may just

8 move to the military expert.

9 JUDGE SCHOMBURG: We have now covered already 094, the

10 constitutional law expert. And when we've got your -- all your

11 submissions on these experts, then we may ask the Prosecution to give

12 their submission as to all the experts.

13 Military expert.

14 MR. OSTOJIC: Yes. Our military expert is Defence witness number

15 91. Richard Wilmont. As identified in our 65 ter submission to the Court

16 and the Prosecution, General Wilmont is still preparing the report and is

17 still reviewing documents in connection with that. We expect, as I

18 outlined specifically, that he will deal with the items on page 2 of our

19 65 ter submission, namely, rules of engagement during combat activities,

20 provocation and retaliation, excessive use of force by the military,

21 limitations and the interactions between the military and local civilian

22 leadership. He will also discuss military hierarchy from the documents in

23 his review. General Wilmont, we believe, will also discuss the weapons

24 distribution. He will also in our opinion give an overview of all the

25 documents that a military analyst should have reviewed in formulating an

Page 9414

1 opinion before testifying before this Tribunal. He also has reviewed, and

2 I can attest that he has examined the testimony, at the very least a

3 report of Mr. Ewan Brown. He will discuss issues that are significant in

4 the fourth amended complaint, namely those of command responsibility. He

5 will not offer for the Court what Article 7(1), or 7(3), mandates. He

6 will discuss from a factual basis what that purported command

7 responsibility was as it relates to a local civilian politician. And we

8 hope that he will survey the evidence and provide the Court with tables

9 from my understanding, and basic outline of the evidence with respect to

10 the military vis-a-vis the police, and then the military with respect to

11 the local civilian authorities.

12 MS. KORNER: Can I ask whether the Court has anything about this

13 general, because we have been provided with nothing at all. We understood

14 that a military expert was a man named Hackworth. And I should point out

15 that it's Ewan Brown, not Mr. Evan Brown.

16 MR. OSTOJIC: Thank you.

17 JUDGE SCHOMBURG: Until now, we don't have any proffer or historic

18 academic background.

19 MR. OSTOJIC: It's my understanding, Your Honour, that was

20 submitted with the package the Court received early this afternoon. It's

21 under Defence witness number 91, and that is what I'm reading from. I

22 have it here if the Court would like it and obviously the Office of the

23 Prosecution is entitled to it. We would be happy to provide it to them.

24 JUDGE SCHOMBURG: What I received today, it stops with 89, with

25 number 89. And you mentioned number 91.

Page 9415

1 MR. OSTOJIC: We'll provide the copies to the Court and the OTP at

2 the next break.

3 We will provide the copies, we apologise for that, to the Court

4 and the OTP at the next break. However, that's an expert. We have been

5 confined to having an a military expert. I'm simply informing the Court

6 of who that is and the name of that expert. We will be glad to share that

7 information, and as agreed with the Office of the Prosecutor, we will

8 provide them with his complete report upon its completion.

9 MS. KORNER: Then, Your Honour, the question I have at this stage

10 straight away is what is the status of Mr. Hackworth or Major Hackworth or

11 Colonel Hackworth or whatever his name is?

12 JUDGE SCHOMBURG: Once again, the same applies here. The Court,

13 balancing the interests of the parties, granted one military expert only.

14 And I take it that when deciding in favour of General Richard Wilmont,

15 Mr. Hackworth is no longer on the list of witnesses. Is this correct?

16 31.

17 MR. OSTOJIC: Yes, I have it. Is the Court waiting for my

18 response on that?

19 JUDGE SCHOMBURG: Yes.

20 MR. OSTOJIC: Your Honour, we believe that it's necessary in order

21 to establish and give weight to witnesses that the Court be presented with

22 evidence from more than just one witness, as the Prosecution has from time

23 to time in their case presented evidence which was cumulative, repetitive.

24 We're not asking that there be cumulative and repetitive testimony given

25 with respect to our experts. However, we think that it is necessary since

Page 9416

1 this Court will be the ultimate trier of the credibility of the witnesses,

2 that the Defence be given an opportunity that at least two, if not three

3 as we have envisioned and have retained as consultants, be presented so

4 that the Court can on balance look at these differing views and make an

5 ultimate decision based upon the evidence that was presented by the OTP's

6 in-house expert, Ewan Brown.

7 JUDGE SCHOMBURG: As mentioned before, the Trial Chamber will rule

8 on this later. Of course, this includes, then, all the other persons

9 mentioned primarily as witnesses, but then it appeared that they should

10 serve as experts.

11 Let's turn now to the handwriting expert.

12 MR. OSTOJIC: With respect to the handwriting expert, I have a

13 separate comment if you will in connection with that. And I recognise and

14 read from last week the Court's indication as well as this afternoon that

15 there must be superior knowledge. If the Court recalls, the annex to

16 Mr. ten Camp's report, namely the article which lists what the specific

17 burden of proofs, if you will, are for handwriting experts, the very last

18 sentence of that article states unequivocally that in order for any Court

19 basically, and I'm summarising, in order for there to be an acceptance of

20 a comparative handwriting analysis and expertise, at the very least, two

21 experts should agree on the conclusions based upon that which they were

22 examining and ultimately reaching a conclusion on. It's Mr. ten Camp's

23 very own submission that there should be one other expert. We submit that

24 Mr. James Hayes is qualified and does have superior knowledge. We will be

25 providing the OTP hopefully later this often and no later than tomorrow

Page 9417

1 afternoon a copy of Mr. Hayes' curriculum vitae. I spoke with the OTP in

2 connection with Mr. Hayes, identified that his firm and practice were

3 involved in many notorious cases, international, involving War Crimes

4 Tribunal as well as notorious nationally back in the States. I believe

5 that he does have specific superior knowledge in connection with being a

6 handwriting comparative analyst. We hope to share with the Court what the

7 standards and burden of proof are of various documents, how in some

8 countries different standards are applied while in others, more stringent

9 standards may be applied in criminal proceedings. We hope not to be

10 cumulative or lengthy with this expert. We have not received his report

11 yet, so I can't tell the Court definitively what it is that he will

12 testify to. But we're confident that he will find Mr. ten Camp with

13 respect to several of the issues consistent. And that he will not have a

14 differing opinion. However, as Mr. ten Camp invited us in his article

15 which is an exhibit to the Court record here, invited us and in fact

16 instructed in my opinion that at the very least two handwriting experts be

17 utilised in order for there to be at least some balance and understanding

18 of whether or not the testimony should be given weight in one direction or

19 another.

20 JUDGE SCHOMBURG: Only one final question: Is it your submission

21 that this expert will come to the conclusion that the contested signatures

22 analysed by Mr. ten Camp are not those of Dr. Stakic?

23 MR. OSTOJIC: It would be very difficult for me to say since I

24 haven't received his report yet. But I can tell the Court what I do know

25 is there are differing standards that the institute that certifies

Page 9418

1 handwriting forensic comparative experts and comparative handwriting

2 analysts to suggest that levels of handwriting should meet certain

3 thresholds in criminal proceedings. That's an issue that we contested

4 with the testimony of Mr. ten Camp, if the Court respectively recalls we

5 felt that the standard omitted things such as beyond a reasonable doubt or

6 most certainly two other factors. We are familiar with other standards

7 that I think are prevalent and used throughout the world. And we would

8 like to share that with the Court. I don't know what his conclusions will

9 ultimately be because he's not completed his review of those documents. I

10 anticipate, since the Defence at times had accepted some of which Mr. ten

11 Camp said, I'm sure that there shouldn't be a dispute on those issues.

12 But I think it's necessary, given Mr. ten Camp's very only article that he

13 relies upon, that he uses as not only a primary source but as the main

14 source for which comparative handwriting analysts make reference items

15 such as no opinion or insufficient data. That it's necessary according to

16 him to have at least two individuals in the profession agree on the topics

17 and on the issues of signatures and authenticity of documents.

18 JUDGE SCHOMBURG: So provisionally, we have to strike number 33

19 because this will serve now for the purposes of expert 97.

20 MS. KORNER: Your Honour, may I just add this. I'm sorry, before

21 you move any further, we don't know what he is examining because we

22 haven't been asked to provide any of the documents that are subject to

23 dispute.

24 MR. OSTOJIC: I'd be happy to share that with the OTP.

25 MS. KORNER: But in any event, Your Honour, we would object to

Page 9419

1 this on the basis that the only issue is whether or not Dr. Stakic signed

2 these particular documents, standards available in the institute of

3 wherever it is in the United States or in Holland are irrelevant.

4 MR. OSTOJIC: I just wish that Ms. Joanna Korner cross-examined

5 Mr. ten Camp so she could tell him that his standards are irrelevant. I

6 dare say if I took that position, it would not be accepted well. I do not

7 think they are irrelevant. Mr. ten Camp was called and requested to come

8 here. It's his opinion that it is a necessity, and I invite the OTP to

9 review his article, it specifically appears on the last paragraph on the

10 annex to his report, where he himself concedes that before you can accept

11 a handwriting expert's report, you must have at least two handwriting

12 experts agree on any of the opinions or conclusions that are submitted.

13 So it's his testimony that we're hoping to support, or his testimony we're

14 hoping to enlighten the Court with.

15 JUDGE SCHOMBURG: I think this is a legal issue to be decided by

16 the Tribunal.

17 The demographer. And here, I have to recall that hopefully the

18 Defence is aware of the limited probative value of a demographer in this

19 case, especially related to counts 1 and 2. And -- but it's for you.

20 What is the relevance, the necessity, to have a demographer to be heard as

21 a Defence expert?

22 MR. OSTOJIC: The Defence is unclear, respectfully, Your Honour,

23 with respect to what the limitations are of the demographer that was

24 offered. Again, the in-house expert, Dr. Ewa Tabeau who was offered by

25 the OTP. We think we have an inclination. We do not want to air once

Page 9420

1 again, and misunderstand the inclination that we believe exists. If

2 Dr. Tabeau's testimony is not and will not be applied to counts 1 and 2 of

3 the fourth amended indictment, our demographer will limit his testimony to

4 the seventh and eighth count, namely deportation and forcible transfer.

5 We think there is significant evidence to establish that quantitatively

6 speaking, there cannot under the law as it exists have been or does it

7 constitute deportation or forcible transfer from the period as alleged in

8 the indictment. But again, the Defence is simply unclear as to the

9 limitations that are being placed on Dr. Tabeau, and we would like,

10 whether it be now respectfully or at a 65 ter conference, to further

11 examine this issue and ultimately reach our decision on whether there's a

12 necessity to call a demographer in this case.

13 JUDGE SCHOMBURG: May I ask who, in case you want to call a

14 demographer, should be the demographer?

15 MR. OSTOJIC: We are actually and have engaged two demographers as

16 consultants, Your Honour. I'm not at liberty at their request to identify

17 their names to the Court. I'm waiting for their preliminary report,

18 expect to have the same within the next two to three weeks, and will

19 immediately upon review of that identify the individual and provide the

20 Court with that information.

21 JUDGE SCHOMBURG: May I tell the Defence that the patience of the

22 Trial Chamber is limited. The motion by the Defence is already due more

23 than six weeks, and it takes now our time to do the work that normally

24 should have been done by the Defence in preparation their proper 65 ter

25 (g) motion. We don't have this motion until now in the way as foreseen in

Page 9421

1 the rules. And we are not prepared to delay and delay another 65 ter

2 conference maybe within two or three weeks. We will decide today and no

3 later. The rules provide, however, that at the end of your case, when you

4 feel the need and it's mandatory, we have to revisit this question. But

5 for the purpose of the preparation of the Defence case, we should have

6 heard witnesses the last three days of the last week and also today

7 instead of substituting that what the Defence should have done in the

8 past. We are no longer prepared to wait for additional informations.

9 Number 98. Journalistic ethics.

10 MR. OSTOJIC: With respect to journalists, there would be a quasi

11 historian obviously because they would have covered the region involved in

12 the indictment, the period. But they would also address the testimony by

13 Mr. Vulliamy with respect to specifically the ethics involved in

14 interviewing accused on behalf of the OTP what effect and what the role of

15 a journalist should be in instances when they were interviewed after being

16 asked or consulted by the OTP to go out and seek individuals such as

17 Dr. Stakic in this case. We've identified and have three journalistic

18 historians who can share with us the ethics involved. We believe that we

19 will stick with David Binder on that issue.

20 JUDGE SCHOMBURG: That is number 7. And therefore, from the list,

21 we can strike number 007. I don't know that this number has a special

22 relationship to Mr. Binder. But then we know what we have to expect. We

23 have already a short proffer on this.

24 Then whatever this should be, under number 100. Let's be neutral,

25 a doctor.

Page 9422

1 MR. OSTOJIC: Yes, we think it's important for the Defence and the

2 Trial Chamber to be able from a neuropsychiatrist, or a psychiatrist who

3 we hope to have evaluate Dr. Stakic as other accuseds have in this -- in

4 these proceedings before the Tribunal, to share with the Court and to not

5 only mitigate but to establish for the Court some of the allegations as

6 set forth by the OTP witnesses as well as in the fourth amended

7 indictment; namely, these issues go, Your Honour, to the criminal mind set

8 if you will that is alleged against Dr. Stakic, that he had a propensity

9 and a willingness to commit and the intent, whether it's the special

10 intent as required under count 1 of the genocide, or whether it's under

11 count 3, the discriminatory intent under persecution. We believe that it

12 would be helpful to the Court to have an appreciation and understanding of

13 what a neuropsychiatrist would be able to share with the Court, especially

14 in light of the fact that Dr. Stakic's family history has been brought and

15 presented in as evidence, namely, the item that we discussed earlier

16 involving World War II and his grandfather, et cetera. We, unfortunately,

17 and we accept the Court's view with respect to perhaps the tardiness of

18 the Defence. But pursuant to Rule 65 ter, we believe if the Court looks,

19 and we know you have, so I say it with most respect, at (g), and

20 specifically (i), the sub-paragraphs request that we give the name or

21 pseudonym of each witness, and we give a summary of the facts. I

22 recognise that it's important for the preparation of the -- for the OTP to

23 prepare. We will give them, I assure the Court, more time than they have

24 ever given us for any of the witnesses. We will not introduce documents

25 during the testimony, on the eve of testimony, or even after their

Page 9423

1 testimony as they have.

2 JUDGE SCHOMBURG: May I ask, what are the concrete facts on which

3 such an expert witness will testify? Is it your submission that you are

4 afraid that in the past, anybody, be it a witness or be it the Prosecution

5 or the Chamber, indicated that there would be the slightest indication

6 that Dr. Stakic would suffer from any disease leading to the result that

7 there would be a limited or total non-culpability?

8 MR. OSTOJIC: I am not a physician or a neuropsychiatrist. If

9 that's the case, it will be presented us. Unfortunately, the issues that

10 a neuropsychiatrist will evaluate and help us understand is whether

11 there's this propensity as alleged by the OTP of this special intent or

12 discriminatory intent or any type of hatred by Dr. Stakic to another human

13 being much less than as it is alleged in the fourth amended indictment. I

14 think it's necessary for the Defence to be given that opportunity. And

15 secondly, if I may, with all due respect, since the Court limited us to

16 two experts at the prior occasion we hesitated to spend funds that we do

17 not have as does the OTP to call this neuropsychiatrist and to have him

18 evaluate Dr. Stakic prior to the Court's authorisation. We believe that

19 such an evaluation can be done in short order, and the report can be

20 tendered to the Court rather quickly.

21 JUDGE SCHOMBURG: What would be the name of this expert witness

22 following 65 ter (g) (i) (a)?

23 MR. OSTOJIC: I'm trying off the top of my head the name of the

24 expert that we would utilise. There are two which have as the Court

25 indicated superior knowledge. I want to say the name of Dr. Russler, with

Page 9424

1 an R. But I can't be certain, Your Honour. And again forgive me for not

2 being certain. We identified this category with the intent to seek leave

3 of court to be able to retain that neuropsychiatrist to evaluate

4 Dr. Stakic as well as the other experts who we've identified only by

5 category.

6 JUDGE SCHOMBURG: Do we agree that at this point in time, this

7 medical expert be stroken [sic] from the list of experts?

8 MR. OSTOJIC: I may, so long as it's without prejudice and with

9 leave to resubmit and ask the Court at a later time.

10 MS. KORNER: We object, Your Honour. There's not the slightest

11 bit of evidence ever been led in this case that Stakic is suffering from

12 any sort of mental problems, that he is in any way suffering from

13 diminished responsibility for his actions, and all a psychiatrist can tell

14 you is what Dr. Stakic said to him today ten years after the event.

15 JUDGE SCHOMBURG: I think that when we agree that any kind of

16 medical expert is no longer on the list, it may be cured if necessary

17 under Rule 73 ter (F) that Trial Chamber may grant Defence request for

18 additional time to present evidence if this is in the interest of justice.

19 But as to the fact that we agreed for this point in time that there is no

20 necessity, we strike the neuropsychiatrist.

21 The police expert.

22 MR. OSTOJIC: Yes, Your Honour. We believe that a police expert

23 is necessary for the Defence to establish for the Court items that are

24 core and critical to the fourth amended indictment. As the Court sees,

25 reading or a cursory review of the indictment, there are specific

Page 9425

1 allegations that various members of the police, members of the reserve

2 police, members of an organisation that may have been considered a

3 paramilitary police, were involved in some atrocities in the region. It

4 is necessary for, we believe, the Court to have an appreciation of the

5 police hierarchy and structure in Prijedor in 1992. What that

6 relationship was with respect to the military, what that relationship was

7 as it may relate to the civilian authorities, this goes to the heart of

8 the issue under article 7(3) namely command superior responsibility. The

9 Court will recall that the indictment against Dr. Stakic was sealed and

10 secret two days prior to his arrest. The Court will also recall that in

11 the indictment, a police chief by the name of the late Simo Drljaca had

12 been indicted, had been killed. It is as a result of that that we believe

13 a police expert is necessary in order for the Defence to establish and

14 elaborate upon the elements specific in the fourth amended indictment. We

15 are prepared to share with the Court the name of the police expert if the

16 Court so wishes.

17 JUDGE SCHOMBURG: I'm more than surprised to hear this last

18 sentence. I think it's clear in a way that it can't be more clear in 65

19 ter (g) (i) (a), that you have first of all - and this is the absolute

20 minimum - to provide a name.

21 MR. OSTOJIC: Thank you, Your Honour. I'd like to address that

22 point specifically. The Defence will not be treated differently than the

23 OTP. If the Court recalls, the OTP in their 65 ter submission identified

24 exactly category similar to these without giving us the name, the

25 curriculum vitae, or the basis of the testimony. They shared that

Page 9426

1 information with us when it deigned on them to give it to us, when the

2 reports were complete, when they were able to fashion the testimony in the

3 manner which they so desired. The reason we do not identify the expert on

4 our witness list is because we do not want to go against Court's prior

5 ruling which limited us to two experts. We cannot and will not identify

6 the witnesses if the Court told us you're limited to two. We've restated

7 the categories because we would like the Court to reconsider those issues.

8 We are prepared to identify that expert. And I will share it with the

9 Court. His name is Dr. Dusko Vanovic -- Vejnovic. Vejnovic.

10 V-E-J-N-O-V-I-C. First name Dusko, I believe. And he's a Ph.D.

11 JUDGE SCHOMBURG: So finally, before I invite the OTP for the

12 summary, the one remains on the list. This is forensic criminal analyst,

13 whatever this shall be.

14 MR. OSTOJIC: Typically, a forensic criminal analyst, from my

15 recollection, and I believe when I used the name of Dr. Russler with an

16 "R" I think that was actually the name of the forensic criminal expert.

17 He can identify criminal behaviour from individuals and would be able to

18 share with the Court whether there's a propensity for such behaviour. We

19 recognise that it may be unnecessary given the OTP's comments, also

20 respectfully given the comments by the Court for us to have an expert such

21 as this. But at the time we certainly had requested it, and I believe we

22 requested it in our written submission to the Court which was rejected.

23 So it appeared once again. We will, with the Court's permission at this

24 time, however, withdraw that category and the witness 096 as it appears on

25 our list. With the Court's permission.

Page 9427

1 JUDGE SCHOMBURG: Number 096, we will strike this from the list.

2 Then we have other names earlier identified as potential experts,

3 identified earlier as experts. It would be -- I know that we mentioned

4 this earlier during this session, number 31, David Hackworth.

5 MR. OSTOJIC: We have, we believe, in our discussions with General

6 Wilmont, provided the Court with the additional information necessary with

7 respect to Mr. Hackworth. And we have nothing more to add than our

8 comments that we made at that time.

9 JUDGE SCHOMBURG: So this person should serve as a second military

10 expert. Then number 32, Mr. Robert M. Hayden.

11 MR. OSTOJIC: Mr. Hayden, as the Court knows or at the very least

12 as the Prosecution knows is a witness that was exhaustively cross-examined

13 on issues relating to what is considered widespread and systematic attacks

14 in the Prijedor region in 1992. Specifically, I believe it was in the OTP

15 versus Tadic case that he gave testimony. We believe, as was the practice

16 during the OTP's case, that the direct and cross-examination of this

17 witness be presented as evidence on the Defence case. If the Court

18 recalls, there are not only allegations of widespread and systematic

19 attack in the fourth amended indictment, there was also testimony albeit

20 in an indirect way from Mr. Vulliamy who in his articles concede that

21 there was no systematic attack and that it was not widespread. And

22 therefore, despite the fact that Mr. Vulliamy was the OTP's expert as he

23 admitted on the stand on those issues, apparently he had been withdrawn.

24 We still believe that it's necessary in order to reach a conclusion on

25 those issues that the testimony of Professor Robert Hayden be heard

Page 9428

1 through his direct and cross-examination in the Dusko Tadic case.

2 JUDGE SCHOMBURG: Thank you.

3 Number 51, Peter Maher.

4 MR. OSTOJIC: Peter Maher, as with Mr. David Binder, would be able

5 to address various issues from a journalistic stand point as I

6 specifically shared with the OTP, both Mr. Binder and Mr. Maher and

7 ambassador Bissett and give enormously credible testimony on a videotape

8 identified as I believe the unavoidable war. These individuals are

9 familiar and known to me. They are prepared to testify to substantiate

10 the comments that they made within that video, and also share with the

11 Court their insights, specifically having covered the war from 1992 and

12 forward.

13 JUDGE SCHOMBURG: So my understanding is that in case you have the

14 choice either to have Mr. David Binder or Peter Maher, your first choice

15 would be David Binder. Correct?

16 MR. OSTOJIC: I would hate to admit that on the record, Your

17 Honour, because I know both of them but that would be accurate.

18 JUDGE SCHOMBURG: We have to come now to a conclusion.

19 MR. OSTOJIC: That would be accurate.

20 [Trial Chamber confers]

21 JUDGE SCHOMBURG: The Trial Chamber decided to strike number 051,

22 Peter Maher, from the list of witnesses for repetitiveness.

23 Number 59, Mr. Schuttleworth.

24 MR. OSTOJIC: Withdrawn, Your Honour.

25 JUDGE SCHOMBURG: So Mr. Schuttleworth number 59 --

Page 9429

1 MR. OSTOJIC: His first name --

2 JUDGE SCHOMBURG: It's not necessary. It's no longer on the

3 list of witnesses. This, then, would conclude the summary of the

4 experts. Thank you.

5 May I invite now for the Prosecution for their submission.

6 MS. KORNER: Your Honour, I think I've made some as we have been

7 going through. But in relation to the last, as far as Hackworth is

8 concerned, the Defence is seeking to call two military experts for no good

9 reason that they have explained. And Hackworth and this fellow General

10 somebody or other, Wilmont. So Your Honour, in the end, it's a matter for

11 Your Honours to decide because Your Honour or the Tribunal is going to

12 have to pay for the Defence to instruct all these experts.

13 JUDGE SCHOMBURG: It's the international taxpayer.

14 MS. KORNER: Exactly, even better. The international taxpayer.

15 So we're simply saying is it necessary to have two military experts. As

16 far as Mr. Hayden is concerned he's another historian Your Honours -- Mr.

17 Ostojic is quite right I know all about him. He did testify in Tadic. If

18 he is going to be called as the expert historian, fine. But I understand

19 that somebody completely different is being called. So on what possible

20 basis is Hayden being called? Again, it's an attempt to have two bites

21 and one of them will possibly throw up a bit of help to the Defence case.

22 Your Honour, I don't think there was anybody else.

23 JUDGE SCHOMBURG: What about the police expert?

24 MS. KORNER: Lost the police one.

25 JUDGE SCHOMBURG: Dusko Russler.

Page 9430

1 MS. KORNER: Your Honour, at the moment I can't say because we

2 don't know anything about this expert, we don't know what he's likely to

3 say, what he can say. So until we do, I think it's a bit premature to

4 say. Because we haven't been given any indication at all who he is, what

5 his qualifications are, what he knows about Prijedor, what he knows

6 about the police.

7 JUDGE SCHOMBURG: You covered already the handwriting expert.

8 MS. KORNER: Yes.

9 JUDGE SCHOMBURG: What about Mr. David Binder, or Binder, whatever

10 he is pronounced?

11 MS. KORNER: Is Mr. Binder the one who is going to give evidence

12 on journalistic ethics?

13 JUDGE SCHOMBURG: Right.

14 MS. KORNER: We object. Absolutely no relevance whatsoever.

15 Your Honour's entitled -- you've heard from Mr. Vulliamy. You're entitled

16 to weigh up what he did, who he saw, and what he said. It is unnecessary

17 for Mr. Binder to come along and say journalistic ethics forbid. I'm not

18 sure I ever heard that journalists had a code of ethics in any event. But

19 I don't see how that helps.

20 MR. OSTOJIC: If I may just reply Your Honour briefly, if

21 Ms. Joanna Korner was here during the testimony of Mr. Vulliamy, he was

22 asked that question and he apparently thinks that some exists because he

23 complied with them. And if I can just address Mr. Robert Hayden, which

24 the Prosecution believes is an academic historian, we are calling

25 Mr. Hayden for the limited sense of widespread and systematic. That is an

Page 9431

1 allegation in the complaint. His testimony can be both from his direct

2 and his cross-examination in the Dusko Tadic case be limited to those

3 issues. However, the Prosecution now for the second or third time has

4 said the Defence throws everything on the wall and hopes something sticks.

5 I dare say we go through the 17, 92 bis witnesses they have identified,

6 presented, all talking about the issues involved in each of the detention

7 centres, Omarska, Keraterm, Trnopolje, calling live witnesses to share

8 with us again the instances and activities within those camps.

9 That wasn't at that time cumulative or repetitive according to the

10 OTP's definition. Now, the fact that there are specific issues that we

11 would like to highlight to the Court that we believe the OTP has failed to

12 present, such as widespread and systematic attack. It's an essential

13 ingredient in the counts alleged against Dr. Stakic. There has been no

14 evidence. The Court feels there was some evidence because that was not

15 stricken or dismissed during the 98 bis proceedings. If that remains as a

16 count, the Defence feels it has an obligation to present evidence from

17 someone the OTP has no right to further cross-examine since they had that

18 opportunity as we had with other witnesses which is the practice and law

19 of the case in this proceeding, that the Court accept that evidence and

20 view it and determine its worth at that time. Thank you, Your Honour.

21 MS. KORNER: If Mr. Hayden -- sorry, Your Honour. If Mr. Hayden

22 were called, we certainly would not accept his evidence and we would wish

23 to cross-examine. But the point about widespread and systematic, is that

24 it's a matter of law for Your Honours to rule on from evidence of people

25 who you can infer that these attacks are widespread and systematic not

Page 9432

1 from Mr. Hayden who as far as I know would merely be quoting what he has

2 been told.

3 JUDGE SCHOMBURG: I think we know what our obligation is as

4 regards the elements of crime. What about 92 bis, related to Mr. Hayden?

5 MR. OSTOJIC: We would be offering as the practice has been here,

6 Your Honour, on witnesses, 17 of which -- I believe 17 of which the OTP

7 submitted where the Defence did not ask for cross-examination, and those

8 witnesses were they did identify where there was cross-examination, those

9 were submitted. We would submit Mr. Hayden merely as a 92 bis witness.

10 We've attached his curriculum vitae so the Court can see his

11 qualifications. I think it's necessary it be updated. However, his

12 testimony was exhaustively taken in the Tadic case, and the

13 cross-examination was rather lengthy at that time. And at that time,

14 although now the OTP's position is widespread and systematic is something

15 for the Court to decide, at that time they had their in-house expert,

16 Mr. Vulliamy, testify about widespread and systematic. Since we found the

17 articles which I strongly believe should have been provided to us where

18 Mr. Vulliamy himself states that it was not widespread and it was not

19 systematic, that should have been given to us under Rule 68. But that's a

20 separate issue. Now they withdraw him as a so-called expert on that

21 issue. We still believe since that aspect of the fourth amended

22 indictment survived that the Defence is entitled to present in an

23 efficient manner by calling Mr. Hayden through 92 bis.

24 MS. KORNER: Mr. Ostojic can only call him through 92 if we

25 agree. And we don't. Equally, Mr. Vulliamy was not called as an expert

Page 9433

1 witness, equally anything that is in the public domain, namely newspaper

2 articles, which the Defence can make searches for themselves there is no

3 onus on us to disclose them at all.

4 JUDGE SCHOMBURG: The constitutional law expert.

5 MS. KORNER: Again, don't know who it is, what he's going to say,

6 nothing.

7 JUDGE SCHOMBURG: Thank you. The Trial Chamber will decide as

8 soon as possible. On this issue. The question is now how to proceed. I

9 heard during the break that there is no possibility for any of the

10 representatives of the Defence to appear tomorrow. Is this correct?

11 MR. OSTOJIC: That is correct, Your Honour.

12 JUDGE SCHOMBURG: May I ask, when do you leave tomorrow?

13 MR. OSTOJIC: Yes, I have a flight back to the United States, I

14 believe it's 10.45 in the morning, which requires me to be there at least

15 two hours earlier, I believe.

16 JUDGE SCHOMBURG: And may I ask, Mr. Lukic?

17 MR. LUKIC: My flight is at 9.30, Your Honour.

18 JUDGE SCHOMBURG: Thank you. Then we have to do our very best for

19 today. But we still have two issues on the agenda. I don't know -- I

20 haven't seen it. Maybe I've overlooked it. But do you have already in

21 case we are proceeding the order of witnesses for December?

22 MR. LUKIC: Well, we can follow in alphabetical order. It's not

23 necessary for the Defence to have any other kind of order, only it might

24 happen that some of the witnesses might be skipped so then the next one

25 comes.

Page 9434

1 JUDGE SCHOMBURG: Are there any objections by the OTP proceeding

2 this way?

3 MS. KORNER: Your Honour, we must know who is coming when. I

4 mean, we can't just jump and skip around the place. I want an actual

5 batting order and the days on which they are coming.

6 MR. LUKIC: Those ten witnesses should come that week, on the 9th

7 of December. I cannot guarantee that none of them would be sick, that

8 none of them would be unable to come. We faced the same problem with the

9 OTP, and we know what kind of manpower the OTP has. So we cannot

10 guarantee for any of them that they will appear on that week. We hope

11 that all of them will come. That's why I said that it's possible that

12 somebody would be skipped. Otherwise, the first on the list should be

13 testifying first on Monday, following accordingly.

14 JUDGE SCHOMBURG: The alphabetical order. And then we proceed as

15 fast as possible, but using the time necessary to have responsible

16 testimony and cross-examination and the questions by the Judges, if any.

17 And then when the number of witnesses is -- will be exhausted during the

18 week, then this will then conclude the hearings for this year. So it

19 might be that the parties know that it might not be necessary to hear, for

20 example, on Friday. Until now, it's scheduled that we hear this case

21 Monday, Tuesday, Wednesday, in the afternoon; Thursday, Friday in the

22 morning.

23 Then what about the list of exhibits. We received a list of

24 exhibits, and is there any problems? Because we can't see that anything

25 is stated whether the Prosecutor has any objections as to the authenticity

Page 9435

1 as foreseen under Rule 65 ter (g) (ii).

2 MS. KORNER: I think not, Your Honour, because at the moment and

3 I want to make it absolutely clear, that if documents suddenly start to

4 appear in the middle of the Defence case which we have never seen before.

5 But at the moment, they are newspaper articles, and documents which we

6 ourselves have provided. Not one I think single original document has

7 been handed over, so as I say, Your Honour, if there is the slightest

8 prospect of documents suddenly being produced like rabbits out of hats

9 during the course of the Defence case, then we will have an objection.

10 JUDGE SCHOMBURG: So as regards exhibits, it remains as it was

11 stated already earlier, that the Trial Chamber expects that no ruling is

12 necessary on the admission on this evidence save in a parcel solution.

13 And we expect the parties to meet and to decide whether or not they agree

14 on all the exhibits then tendered. Until now, I take it they are not yet

15 offered to the Prosecution. The list, yes, but --

16 MR. LUKIC: The Prosecution has the documents as well, only none

17 of them are translated.

18 JUDGE SCHOMBURG: Right. But -- I'm aware of this. I only wanted

19 to recall that there was an agreement that also related to the books and

20 the part of the books which should be admitted into evidence, there should

21 be an agreement between the parties and only in the case of nonagreement,

22 the Trial Chamber is prepared to make any kind of ruling.

23 MR. LUKIC: Your Honour, I just want to make one correction. It's

24 not that none of them are translated; not all of them are translated.

25 JUDGE SCHOMBURG: Anything else from the parties at this moment?

Page 9436

1 MS. KORNER: Your Honour, we've managed to confuse ourselves

2 slightly I think with witnesses that were struck and witnesses that were

3 allowed in. I wonder if at the end of the day we could be provided with a

4 full witness list, perhaps by the registry.

5 JUDGE SCHOMBURG: It follows from the transcript, but no doubt, it

6 would serve the interests of justice to have the list of the now -- until

7 now 52 witnesses. And a decision on the expert will follow as soon as

8 possible.

9 We don't know the time exactly we need for our deliberations.

10 Therefore, the trial stays adjourned until 6.45.

11 --- Recess taken at 5.33 p.m.

12 --- On resuming at 6.52 p.m.

13 JUDGE SCHOMBURG: Please be seated.

14 As you may have seen from the mere fact that it took the Chamber

15 several days to decide on the motion on mistrial and the remaining point

16 was only point 1 of this decision, we thought -- we believe that we have

17 before us a serious violation of Rule 68. We had to visit, revisit, the

18 jurisprudence by this Tribunal from Furundzija, Celebici, and the last one

19 was I think in Simic on these omissions by the Prosecution under Rule 68.

20 I think in this case it is not disputed that there was such a violation of

21 Rule 68. It is not for the Trial Chamber to find out what are the

22 underlying reasons, whether there was negligence, cross-negligence, or as

23 alleged by the Defence, even deliberate infringement of Rule 68.

24 In Brady 373, United States at 87, it was held "that the

25 suppression by the Prosecution is evidence favourable to an accused upon

Page 9437

1 request violates due process where the evidence is material either to

2 guilt or to punishment, irrespective of the good faith or bad faith of the

3 Prosecution."

4 So it's -- from this it's quite clear that it is the right to have

5 access to this material under Rule 68 as soon as possible and as soon as

6 practicable for the Defence. And it is also necessary for the Trial

7 Chamber, because how should we, the Judges, exercise our mandate if we

8 don't have the facts? And only when we have the facts, we can decide.

9 And we are mandated to come as close as possible to the truth as we can

10 find it in the rules governing the ethics of the Defence where we can

11 read, in the standards of professional conduct for Prosecution counsel, it

12 is to assist the Tribunal to arrive at the truth and to do justice for the

13 international community, victims, and the accused. How can we find out

14 and how can we decide under Rule 98, sentence 2, or 85 (v) if we don't

15 know that these statements exist as we have before us now?

16 The question arising, however, is is there any violation of due

17 process or the principle of fair trial. And this is, first of all, a

18 question of the materiality of the evidence. In Bagley 473, United

19 States, at 678, it is said that "Bagley's touchstone of materiality is a

20 reasonable probability of a different result, and the adjective is

21 important. The question is not whether the defendant would more likely

22 than not have received a different verdict with the evidence, but whether

23 in it's absence he received a fair trial, understood as a trial resulting

24 in a verdict worthy of confidence. The reasonable probability of a

25 different result is accordingly shown where the government's evidentiary

Page 9438

1 suppression undermines confidence in the outcome of the trial." Already

2 from this it follows that a high threshold is applicable. And this is

3 also the case here when deciding on the motion before us.

4 We are aware that the statements contain, in fact, ambiguous

5 material. And we came to the conclusion that we can exclude that the

6 final outcome of the case is not affected. And this is the test used, for

7 example, in the United States and especially there Brady. The outcome is

8 as said not affected because of the ambiguity, the final outcome.

9 An additional question was raised by the Defence: What about our

10 98 bis decision? Was there any impact on this decision by the omission of

11 the OTP which could result in a restoration of the status quo ante. We,

12 especially the Judges, having signed the 98 bis motion, when

13 conscientiously going through the statements, we came to the conclusion

14 that having decided as mentioned before unanimously, therefore, not

15 needing to contact Judge Fassi Fihri, we can conscientiously state that

16 the outcome, the result, would have been the same if we would have had

17 these statements before us already earlier.

18 Then it comes down to the final question: Is there any prejudice,

19 and especially is there prejudice that can't be cured? And here, we came

20 to the conclusion that, no doubt, the Defence has the possibility to call

21 these witnesses during their case. And whenever they want, they may

22 request the reappearance of witnesses, but already at this point in time,

23 we have to emphasise that it would be for the Defence to demonstrate on

24 the basis of concrete questions that the Defence was not able to put these

25 concrete questions to the witnesses when they had been here in The Hague,

Page 9439

1 and that these new questions are emanating from the statements missing at

2 that point in time.

3 Therefore, in result, we come to the conclusion that there was no

4 prejudice for the accused, that it does not affect the final outcome of

5 the case. And therefore, the principles of due process and fair trial are

6 not infringed. The motion is, therefore, rejected.

7 It's not rejected without a stern warning in the direction of the

8 Office of the Prosecution to fulfill their obligations under Rule 68

9 forthwith. This principle has to be applied by the test in doubt to

10 disclose the material obtained by the Prosecution when in doubt it tends,

11 as we can read it from Rule 68, to be exculpatory material. Only this

12 enables in future the Defence to exercise their obligations and at the

13 same time it enables only this enables the Trial Chamber to exercise their

14 obligations under Rule 98 bis and 95 (v) [sic].

15 Then let me turn to the question of experts. In conclusion, I can

16 already state now that we stick to our earlier decision on 65 ter -- on

17 expert witnesses. Why this? We admitted an historian, here number 87,

18 Mr. Trifkovic, and we admitted a military expert, General Richard Wilmont.

19 It's, first of all, balancing the interests of both parties and the fact

20 that also the Prosecution, in fact, provided us with the testimony of such

21 witnesses, expert witnesses. But we did not see, and it was not

22 demonstrated, that there was any necessity to hear a second military

23 expert, Mr. Richard [sic] Hackworth. Therefore, we strike this witness

24 from the list of witnesses.

25 Constitutional law expert, I think it's the mandate - and we

Page 9440

1 already stated this earlier - it's the competence and the mandate of this

2 Trial Chamber to decide on these legal questions, summarising the

3 contribution by the Defence counsel, it comes down to the question whether

4 or not 7(3) of our Statute was part of customary international law already

5 in 1992 and whether or not it would amount to apply laws of substantive

6 criminal law retroactively. This is a question that can only be decided

7 by the Trial Chamber.

8 As regards the handwriting expert, we stated in our earlier

9 decision what is the threshold to admit a second handwriting expert. And

10 we found that it is not correct that what was submitted by the Defence

11 that Mr. ten Camp requested or recommended to have a second expert

12 handwriting -- handwriting expert. Of course, he stated that there are

13 different international standards that could be applicable, and therefore

14 the outcome, the parameters of the decision, could be different, applying

15 different national standards. But we don't know anything about, and it

16 was not demonstrated, that Mr. Hayes would have superior knowledge or

17 possibilities or scientific methods not available for Mr. ten Camp.

18 Therefore, also, we have to strike also Mr. Hayes from the list of

19 witnesses.

20 As regards an expert on journalistic ethics, we don't see that

21 this can be regarded as an expert. It is another approach how to

22 conduct journalistic research, but it is for the Trial Chamber to find out

23 whether, for example, in this case Mr. Vulliamy is reliable evidence, is

24 credible. And it's not -- it can't be countered by another journalist,

25 especially when this journalist has never been and we never found any

Page 9441

1 submission related to this, has never been in Prijedor. By striking David

2 Binder from the list of witnesses, we had to come back and revisit witness

3 number 51, Peter Maher. But the same is true as what was said related to

4 David Binder. Also he has never visited Prijedor, never had contacted Dr.

5 Stakic. And therefore, it would amount to the testimony of another

6 journalist. But the relevance of this testimony has not been

7 demonstrated.

8 Finally, the police expert. Once again, the relevance of this

9 testimony has not been demonstrated. It was the Defence counsel's

10 submission that it wouldn't be necessary to provide more under 65 ter, or,

11 in addition, that when ruling earlier on the question of experts and on

12 the admission of experts, they didn't expect that any additional expert

13 witness would be admitted. This is not correct. As you can read it from

14 the transcript, we invited explicitly in our order the Defence, if need

15 may be, to demonstrate the relevance of these experts. And this is

16 necessary not only under 65 ter (g), but 65 ter (g) has always to be read

17 together with Rule 73 (c) because here it's the obligation for the Trial

18 Chamber to find out whether or not the -- a witness has to be heard

19 or - let me quote - "in the light of the file submitted to the Trial

20 Chamber by the pre-trial judge, pursuant to Rule 65 ter (l) (ii), the

21 Trial Chamber, after having heard the Defence, shall set the number of

22 witnesses the Defence may call." And the same is true without any doubt

23 for expert witnesses.

24 Finally, I didn't mention until now Professor Robert Hayden,

25 professor of anthropology. Once again, we couldn't identify the relevance

Page 9442

1 in the summary of the testimony, of the expected testimony. The Office of

2 the Prosecution did not consent under Rule 92 bis. And in fact, the

3 first -- already in the first sentence, the submission by the Defence, is

4 that this witness should testify and it would be relevant, his testimony,

5 on widespread and systematic campaign. Once again, one element of crime

6 that has to be assessed by the Trial Chamber and nobody else.

7 Finally, it was for the Trial Chamber to decide under Rule 65 ter

8 (n). There it reads: "The Trial Chamber shall decide should the case

9 arise on sanctions to be imposed on a party which fails to perform its

10 obligations pursuant to the present rule. Such sanctions may include the

11 exclusion of testimonial or documentary evidence." We are of the opinion

12 that especially related to the latter sanction, there would be prejudice

13 for Dr. Stakic. And already from this point of view, we can't take into

14 account this sanction. The other sanction mentioned in an order of this

15 Trial Chamber earlier was the question of whether or not it was adequate

16 in this concrete consolation to ask the Registrar to redact a certain

17 portion of the fees related to these motions from the Defence. Once

18 again, the Trial Chamber found that this would be not an appropriate

19 reaction. And I want to leave with this: Especially balancing the

20 omissions of both parties

21 and this possibility is only available in one direction, therefore, in

22 conclusion, we decided not to impose any sanctions under Rule 65 ter (n).

23 But once again, we have to alert the Defence and recall their ongoing duty

24 to cooperate as foreseen under Rule 65 ter (g) in order to avoid any other

25 undue delay as we had it during the last days.

Page 9443

1 This concludes today's hearing. The trial stays adjourned until

2 Monday, 9 December, 14.15 in this courtroom.

3 --- Whereupon the hearing adjourned

4 at 7.17 p.m., to be reconvened on Monday,

5 the 9th day of December, 2002, at 2.15 p.m.

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