Tribunal Criminal Tribunal for the Former Yugoslavia

Page 4559

1 Wednesday, 7 April 2004

2 [Open session]

3 [The accused not present in court]

4 --- Upon commencing at 9.09 a.m.

5 JUDGE PARKER: Good morning. Once again we have received word

6 that the accused is in need of further medical attention and his condition

7 is such that he cannot attend today. As with yesterday, that will

8 necessitate us adjourning once again.

9 We delayed a few minutes before coming in in the hope of getting a

10 report on the prospects of the accused with regard to his attendance

11 tomorrow. It proved that we were too anxious and too early to have that

12 report, but it is hoped we will have a report by 10.30 this morning. If

13 the report is clear that he will not be able to attend tomorrow, I would

14 propose to have the legal officer or the court officer contact both

15 parties and advise them, and in that event we will not sit tomorrow.

16 If there is a prospect that he will be well enough tomorrow, we

17 will just have to live in that hope and be prepared to sit tomorrow.

18 There are one or two matters we should be able to deal with even

19 in the absence of the accused. Firstly, there is a motion of the

20 Prosecution to substitute a witness on the 65 ter list. It's a relatively

21 minor procedural motion. I take it, Ms. Somers, you wouldn't want to say

22 anything further in support of it?

23 MS. SOMERS: Only that I think it will be extremely helpful to the

24 Chamber, given the concerns that were raised and I think that it will make

25 it -- make certain things clear from other evidence that has come in. I

Page 4560

1 think it will be a good tie-up and should eliminate the need for any

2 further evidence on this point. It will allow better argument and make

3 it, as I say, much more helpful for the Chamber to evaluate what's in.

4 JUDGE PARKER: Essentially substituting one of the architect

5 authors for another; is that the point?

6 MS. SOMERS: Yes. This man is an author of the report and can

7 provide some elucidation on some of the evidence that was seen in some of

8 the video, so we think it will be a very positive thing.

9 JUDGE PARKER: Thank you. Mr. Petrovic?

10 MR. PETROVIC: [Interpretation] Your Honour, we received this

11 motion of Ms. Somers' dated the 2nd of April. Also at a meeting we had

12 with Ms. Somers yesterday we discussed the issue, and we tried to get the

13 reasons and explanations of the motives of Ms. Somers that she was guided

14 by when deciding to replace one witness by another. Quite simply, Your

15 Honours, there is no further elucidation on it in this document except for

16 a mere statement of fact that one witness will be replaced by another.

17 Our position is as follows, Your Honour: We do not aspire to

18 affect the Prosecution case in any way, but nevertheless, if the witness

19 list is going to be changed, the one that the Honourable Trial Chamber

20 already has stating who the witnesses who will testify in this courtroom

21 will be, there has to be a reason, there has to be an explanation why one

22 witness is being replaced by another witness. This 65 ter list is not a

23 mere list but a very carefully made compilation made before the beginning

24 of the trial. It is instructive for all the parties involved. It is a

25 kind of guideline that makes it possible to forecast things, to do some

Page 4561

1 planning, to see how things will evolve, whereas now, through a mere

2 motion in writing it is being changed without giving any reasons for it.

3 Therefore, our position is that the Prosecutor has to give a

4 reason why she is doing this.

5 Thank you, Your Honour.

6 JUDGE PARKER: Thank you, Mr. Petrovic. I must say it struck me

7 that that was an extremely modest submission, because it did not take into

8 account the very effective cross-examination that has been undertaken by

9 the Defence of the witnesses that have dealt with the document P51 so far,

10 and clearly the Prosecution is now moving to attempt to overcome some of

11 the shortcomings that have been so well exposed by your cross-examination.

12 So we commend you on your modesty, but those circumstances, together with

13 the comments which I think the Chamber itself made in the conference about

14 this issue, have provided a very clear reason why the Prosecution would

15 seek to have at least one direct author who can speak firsthand at least

16 of the general nature of the work and some of the particular details that

17 are in it.

18 MR. PETROVIC: [Interpretation] If you permit, Your Honour. I

19 would wish to say the following with regard to this particular matter: In

20 my modest opinion, the situation is not going to change in the slightest.

21 Now, what is this all about? The status of the person being proposed by

22 Ms. Somers in relation to the overall report does not differ in any way

23 from the persons who already testified before you, Your Honours. He is

24 one of the 20 persons involved, this gentleman who is proposed as a

25 witness, Slobodan Vukovic --

Page 4562

1 MS. SOMERS: Excuse me. Any matters concerning names of

2 witnesses, until admitted, are generally private session and we'd ask

3 that, as they're submitted on confidential witness lists, so until there

4 is some ruling, we'd ask that it be treated accordingly.

5 JUDGE PARKER: Thank you, Ms. Somers.

6 MR. PETROVIC: [Interpretation] All right. I'm not going to

7 mention any names, although it was my understanding that no protective

8 measures were sought for any one of these witnesses, and that's why I saw

9 no reason why we should move into private session, but of course that is

10 in the hands of Their Honours.

11 So the witness who is sought to be replaced is the same profile of

12 witness as, for example, Lucijana Peko who testified before you. Your

13 Honours, he will also be in a position to tell you about a particular

14 segment provided that he remembers, say, 1/20th of what the total report

15 is. There is no new quality involved in his testimony. As a matter of

16 fact, this person was not even an employee of the institution that we are

17 talking about. As a matter of fact, this person got involved in this

18 entire exercise ten days later when this was practically over, after this

19 entire exercise mentioned in P51 was not exactly finished but well under

20 way.

21 I'm saying once again, it is for the Prosecution to decide on what

22 their case is going to be. We have no right or duty to affect it in any

23 way. However, Your Honours, no new quality will be achieved before this

24 Honourable Trial Chamber if one witness is replaced by another and they

25 are the same type of witness anyway.

Page 4563

1 On the basis of the statement, we believe that even less

2 information can be received from this witness than from the lady witness

3 who had been proposed earlier on.

4 I repeat, there is no explanation proffered for the change.

5 May I say in conclusion, Your Honours, that we appreciate what you

6 said about our successful cross-examination, but it seems to me that this

7 is something that is not due to that but some mere administrative reasons

8 or, rather, a lack of wish on the part of the witness himself to testify,

9 and it is in your interest to hear comprehensive evidence about the damage

10 sustained by the Old Town which has been discussed so far.

11 Thank you.

12 JUDGE PARKER: Thank you, Mr. Petrovic.

13 [Trial Chamber confers]

14 JUDGE PARKER: The Chamber is persuaded, Ms. Somers, that the

15 application should succeed. We would allow the substitution of the

16 witness you propose for the witness previously number 39 on the 65 ter

17 list. We regard the change as involving no apparent substantive change in

18 the general nature of the evidence and, therefore, one is not giving rise

19 to prejudice to the Defence and we are prepared to leave it to the

20 Prosecution to judge whether the evidence of this witness will be of more

21 value to the trial than the previous witness proposed in light of the

22 troubled history of this area of fact so far in the trial. So that

23 application will succeed.

24 Now, I could turn to one further matter, and that is to inquire

25 from the parties about progress in the negotiations and discussions which

Page 4564

1 the Chamber urged on the parties at the last conference.

2 Perhaps Ms. Somers.

3 MS. SOMERS: Thank you, Your Honours. Yesterday, the Prosecution

4 and the Strugar Defence team did meet, and there were several issues on

5 the table. One -- of course the principal one was trying to get some

6 agreement on issues of damage.

7 The proposal by the Defence - and we will summarise it in a

8 communication to the Defence just to make sure we understood very clearly

9 their position - we did not find necessarily advancing or offering to

10 advance, I think, the -- at least the quantitative aspect of damage to

11 institutions. I think initially there was not necessarily understanding

12 of the fact that we want very much to be able to link, if possible, using

13 the framework of the institute report, as it were, a telephone book from

14 which the body of overall damage can be looked at. We are going to

15 continue our negotiations. It is sincerely hoped that we can make more

16 progress, but I have to indicate that I was not terribly encouraged

17 yesterday on that, yet it is our goal to make sure that enough evidence is

18 brought so that substantial damage is shown, and I think that in tandem

19 with the other evidence that has been put before the Chamber, including

20 video and live testimony, we should be able to sit down with the Defence

21 and say, this is what is shown, this is what is shown, et cetera, et

22 cetera. But we have indeed started, and we will undertake to try to set

23 another meeting with the Defence to see if perhaps, after we take a look

24 at the situation with the next witness, that would move things along a

25 bit.

Page 4565

1 The Defence certainly spent enough time with us. I would say the

2 meeting lasted from approximately 12.20 to about 1.25, and we had good

3 opportunity to get our positions at least expressed.

4 The other matter that was raised was the amount of time, perhaps,

5 the medical, the psychiatric would take, and in terms of witnesses to be

6 called, whether the Defence anticipated calling additional witnesses --

7 excuse me. I will wait for this announcement.

8 In order for us to understand better how much time the Defence

9 plan to take. The indication was it would be -- I think there kind of was

10 at least one witness additional to the psychiatrist. Now, it would be

11 helpful to know if there will be more than one witness so we also can plan

12 for appropriate cross, and we'd like to know who the witness is and

13 effectively a summary of what the witness would say.

14 Other than that, no other specific issues were addressed, but I

15 think it was a helpful exercise to try to sit down and begin to look at

16 some of these points.

17 JUDGE PARKER: Thank you, Ms. Somers. Is there anything you would

18 add, Mr. Petrovic?

19 MR. PETROVIC: [Interpretation] Yes, Your Honour. In view of the

20 nature of what would be discussed, the nature of what we discussed

21 yesterday at the meeting between the parties and in relation to the

22 patient's condition, could we please move into private session for a

23 moment so that I can provide you with my information and our view of the

24 problems concerned.

25 JUDGE PARKER: Yes, we'll move to private session.

Page 4566

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23 [Open session]

24 THE REGISTRAR: We are in open session.

25 JUDGE PARKER: That being the case, there is nothing more we can

Page 4570

1 profitably attend to at the moment. We will formally adjourn until 9.00

2 tomorrow, subject to the proviso that if advice is received that the

3 accused's health will preclude his attendance tomorrow, the parties will

4 be notified and this hearing will resume next Tuesday, I think at 2.15 in

5 the afternoon rather than tomorrow.

6 If you could extend our apologies once more to your witness or

7 arrange for that to occur.

8 We will adjourn now.

9 --- Whereupon the hearing adjourned at 9.37 a.m.,

10 to be reconvened on Thursday, the 8th day of April,

11 2004, at 9.00 a.m.

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