Tribunal Criminal Tribunal for the Former Yugoslavia

Page 19311

 1                           Monday, 4 April 2011

 2                           [Pre-Defence Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.03 a.m.

 6             THE REGISTRAR:  Good morning, Your Honours.  Good morning,

 7     everyone in and around the courtroom.

 8             This is case number IT-08-91-T, the Prosecutor versus

 9     Mico Stanisic and Stojan Zupljanin.

10             JUDGE HALL:  Thank you, Madam Registrar, and good morning to

11     everyone.

12             As we begin a new phase of this trial, may we have the

13     appearances, please.

14             MS. KORNER:  Your Honours, I think you may have heard me.  I said

15     this should start with the Defence, surely, as it's the Defence

16     Pre-Trial Conference.  But, in any event, for the Prosecution this

17     morning it's Joanna Korner, Belinda Pidwell, and Crispian Smith,

18     Case Manager.

19             MR. ZECEVIC:  Good morning, Your Honours.

20             For -- appearing for Stanisic Defence this morning,

21     Slobodan Zecevic, Slobodan Cvijetic, Eugene O'Sullivan,

22     Ms. Tatjana Savic, and Ms. Deirdre Montgomery.  Thank you.

23             MR. KRGOVIC:  Good morning, Your Honours.

24             Dragan Krgovic, Aleksandar Aleksic, Ms. Michelle Butler, and

25     Miroslav Cuskic appearing for Zupljanin Defence.  Thank you.

Page 19312

 1             JUDGE HALL:  The first thing that the Trial Chamber would

 2     announce is that pursuant to Rule 73 ter, the Trial Chamber, having

 3     considered the requests of the Defence, grants to each Defence the number

 4     of witnesses requested; that is, 11 witnesses for Stanisic and 24

 5     witnesses for Zupljanin.  And in terms of time, the Trial Chamber also

 6     grants the Zupljanin Defence the 64 hours to present its

 7     evidence-in-chief.

 8             One of the things that struck us is that, in terms of the

 9     projections of the Stanisic Defence, three of the witnesses it was

10     indicated that 20 hours would be required for their examination-in-chief.

11     We wonder whether, upon reflection, that that estimate is still something

12     with which we should be working.

13             MR. ZECEVIC:  Yes, Your Honours.

14             We -- as you are aware, we focused our Defence on five viva voce

15     witnesses.  However, we have some 895 documents which we intend to tender

16     during our Defence case.  The viva voce witnesses are -- the extensive

17     time of direct examination is especially for the reason because we want

18     to enter at least around 100 documents with each one of the viva voce

19     witnesses.  And we believe, apart from the fact that there is this

20     substantial number of documents, the viva voce witnesses which we intend

21     to bring to testify will cover the overall 92 -- more or less the overall

22     92, plus a number of events which are relevant for this indictment, plus

23     some of them will address the situation immediately prior to the war.

24     And that is why we believe that the 20 hours for these three witnesses is

25     justified and needed for the presentation of Defence case.

Page 19313

 1             Thank you.  I hope I was of any assistance.

 2             JUDGE HALL:  Thank you, Mr. Zecevic.  We understand.

 3             The next item is that, to the extent that it needs to be

 4     clarified, we would remind counsel that the procedure that we expect to

 5     follow is that in respect of the cross-examination that counsel for the

 6     co-accused would begin -- would cross-examine first, followed by the

 7     Prosecution, which we believe is the normal procedure.  We would remind

 8     counsel of the practice to which the Prosecution, when it was their turn,

 9     was expected to adhere in terms of e-mailing a list of witnesses for the

10     coming week by 4.00 p.m. every Thursday.

11             And the Defence is also required to provide a list of documents

12     to be used during the examination-in-chief not later than 72 hours prior

13     to the testimony when the total number of pages exceeds 100, and in other

14     cases, not later than 48 hours in advance of the testimony.  And the list

15     shall be in Excel format, which was the same format used by the

16     Prosecution.

17             Thirdly, the cross-examining party should e-mail a list of

18     documents to be used when the examination-in-chief begins.

19             Mr. Zecevic, in terms of your batting order, could we expect the

20     first two months, that's April and May -- well, six weeks, could we

21     expect your lists by today week?

22             MR. ZECEVIC:  Well, Your Honours, I have a batting order for all

23     nine witnesses which we are calling, and --

24             JUDGE HALL:  We had received that document.

25             MR. ZECEVIC:  Yes.

Page 19314

 1             JUDGE HALL:  And so you're confirming that the order in which the

 2     names appear on that document is the -- is what you intend to follow?

 3             MR. ZECEVIC:  Yes, that is what I intend to follow, except I have

 4     to first find out what is the estimates for the cross-examination by our

 5     friends from Zupljanin Defence and the cross-examination -- the estimates

 6     of the cross-examination of the Office of the Prosecutor, in order that

 7     I can have -- then I can have a much clearer picture then, and then we

 8     can -- we can formatise our presentation of witnesses.  So by all means

 9     we will provide, by Monday next week, the list for the first two months,

10     yes.

11             JUDGE HALL:  Thank you.

12             MR. ZECEVIC:  Thank you.

13             MS. KORNER:  Because on that, and I'm not sure what this list

14     Mr. Zecevic is referring to, is if you look at his 65 ter, it's not the

15     order in which he's calling them.  So I would echo the request that we

16     can have it by next week.

17             JUDGE HALL:  Thanks.

18             Following from what Mr. Zecevic has just said, once the -- a part

19     of that would be the estimates which the co-accused and the Prosecution

20     would provide in terms of their estimate lengths -- estimated lengths of

21     the batting order.  Thanks.

22             Thank you.  I am reminded that I neglected to confirm that

23     counsel for -- that the Defence for Stanisic has the total of 102 hours

24     that they requested.

25             MR. ZECEVIC:  Thank you very much.

Page 19315

 1                           [Trial Chamber confers]

 2             JUDGE HALL:  Mr. Krgovic, it appears that the practice before

 3     this Tribunal has not been entirely uniform in terms of the opening

 4     statement when there are multi-accused.  I don't know to what extent you

 5     have considered this.  And if you have settled the matter in your own

 6     mind, and, of course, I suppose to the extent it's necessary, after

 7     consultation with counsel for Stanisic, when did you think that you would

 8     be making your opening statement?

 9             MR. KRGOVIC: [Interpretation] Your Honour, we wanted to ask

10     guidance from the Trial Chamber precisely on this issue.

11             In the cases where there were several accused, the opening

12     statements and the ensuing presentation of evidence was normally done in

13     this order:  Where the Defence team would hold their opening statement

14     immediately prior to their own presentation of evidence respectively.

15     Our intention was to ask the Trial Chamber's consent to have the opening

16     statement of Mr. Zupljanin immediately before and on the day we present

17     our first witness.  This was the case, for instance, in

18     Milutinovic et al., Popovic et al.  That was the order in which they

19     presented their evidence, the various teams.  It doesn't necessarily have

20     to fall on the same day.  But on the day we call our first witness, we

21     would have our opening statement, which would be a brief one.  It would

22     perhaps take one session.

23             JUDGE HALL:  Thank you.  The Trial Chamber has no difficulty with

24     that, and that is the order that we will follow.  Thank you.

25             Mr. Zecevic, the matter of the Witness Bajagic, where are you in

Page 19316

 1     terms of such discussions as you would have had with the OTP?

 2             MR. ZECEVIC:  Thank you, Your Honour.

 3             The situation with our expert, Professor Mladen Bajagic, is the

 4     following:  As I hope you're aware, the report was translated, and it's

 5     been filed on the 30th of March.  We are assured that at this moment

 6     there are still 11 footnotes which are still missing translation, only

 7     11 footnotes.  And I talked to Ms. Korner on Friday about it.  All these

 8     footnotes are -- majority of these footnotes are excerpts from the books,

 9     so -- and all of them are basically relying on the first part of

10     Mr. Bajagic's report, which is, in general, the general context and the

11     situation before the split of the MUP of Bosnia and Herzegovina.  So I

12     would say that the -- that these -- that the pending translations of

13     these footnotes are not, so to speak, essential documents for the

14     presentation of evidence of Mr. Bajagic, and I'm definitely sure that

15     this will not -- this would not be prejudicial to the ability of the OTP

16     to prepare for the cross-examination of this witness.

17             On top, we have the assurances that all 11 translations will be

18     finished today, and we will up-load them in the course of today to the

19     e-court and provide the translation to our friends from the Office of the

20     Prosecutor.

21             Your Honours, in that respect, I would kindly need to ask

22     Your Honours to reconsider your order.

23             The situation is the following:  Professor Bajagic is a professor

24     on the Police Academy in Belgrade.  The system, the overall system,

25     university system, in our country works on the -- the main time for the

Page 19317

 1     exams is June and July, so exams of the students start somewhere

 2     beginning of June and ends somewhere in mid-July.  If we postpone

 3     Mr. Bajagic, it might happen that he becomes unavailable for this month

 4     and a half, and it would create an enormous problem because then we don't

 5     have many more options, as you know.  We have nine witnesses altogether,

 6     so if we hear eight witnesses, we might be in a position to be stuck for,

 7     I don't know, a week or two until he's available to come and testify in

 8     these proceedings.

 9             Therefore, I would kindly ask that we -- I planned to call

10     Mr. Bajagic on the 2nd of May because -- I didn't -- I didn't plan that

11     out of my own wish.  It is in a consultation with him, which time would

12     be most appropriate and where he will have the ability to come, be

13     prepared, and testify in these proceedings.  Therefore, I will kindly ask

14     that we stick to the original schedule and call Mr. Bajagic on the

15     2nd of May.

16             Thank you very much.

17             JUDGE HALL:  Mr. Zecevic, while you're on your feet.

18             MR. ZECEVIC:  Yes.

19             JUDGE HALL:  Before I hear from the OTP, are there any other

20     translation issues that you need to address?

21             MR. ZECEVIC:  Well, we discussed the situation with our first

22     witness, Mr. Bjelosevic, who is to appear on the 12th of April, next

23     Tuesday.  Now, we are -- there is some -- a number of some 20 outstanding

24     translations pending of the documents which we intend to introduce

25     through this witness.  Those are the half-page documents, and we are

Page 19318

 1     assured by CLSS that the translations and the revisions of translations

 2     will be done by Wednesday this week, so two days from now, and that --

 3     and I'm pretty sure that this will give enough time for the Office of the

 4     Prosecutor to prepare for the cross-examination, since I intend, as I

 5     said, to lead in direct examination testimony of this witness for the

 6     whole week next week.

 7             JUDGE HALL:  Thank you.

 8             Yes, Ms. Korner.

 9             MS. KORNER:  Your Honour, on that matter, there are something

10     like 160-odd documents that relate to Doboj on the 65 ter list.  By our

11     reckoning, there are 43, not 20, that are untranslated.  And if it's

12     intended to use them in the course of calling Mr. Bjelosevic to give

13     evidence, then I'm afraid we want them, all of them, by -- we'll accept

14     Wednesday of this week, as is asserted.  But we make it 43, that there

15     are no translations in e-court for them.  Otherwise, there may have to be

16     a delay.  It depends on the nature of the documents, quite obviously.

17     It's very difficult for us to say at the moment.

18             Your Honour, can I go back to the Defence witness.  Mr. -- sorry,

19     the expert witness.  They're all Defence witnesses.  The expert witness,

20     Professor Bajagic.  There are two or three matters that we'd like to

21     raise.

22             The first is this:  We're told excerpts from books are awaiting

23     translation.  Your Honour, these are books which I have to say none of us

24     have ever heard of, and they're all in the Serbian language, apparently.

25     We are asking, and we -- I spoke to Mr. Zecevic about this, for copies of

Page 19319

 1     the entire books so we can try and see where these one-page excerpts come

 2     from and how they fit in to the general pattern.  We're at a complete

 3     disadvantage without being given copies of the book.  So if we can be

 4     provided with copies of each of the books on which they rely in their

 5     footnotes, then we will see where we go as to whether we're in a position

 6     to deal with him on the 1st of May.  We understand the problems.  We're

 7     not anxious to cause the Defence any problems with calling him, but we

 8     cannot really give a definitive answer until we have those books.  That's

 9     the first matter.

10             Your Honour, the second matter is this:  I don't know if

11     Your Honours have had a chance to look at the report.  We accept that

12     through his police experience, and I'll come back to that at the moment,

13     it would appear that Professor Bajagic may be classed as an expert on the

14     workings of the MUP.  It's not clear how long he worked there, because

15     the -- his CV is not yet translated either, although it's been loaded

16     into e-court.  We've had somebody read it.  And he says he's had about

17     19 years, I think.  He testified in the Popovic case, where he said it

18     was about 16 years' experience.  But, Your Honours, the one thing -- it's

19     one thing for him to be accepted by us as an expert on police procedures

20     and quite another to have the first section of his report, which it deals

21     entirely with the so-called political aspect, doesn't -- barely mentions

22     the MUP, and I invite Your Honours to read, particularly, from pages 17,

23     paragraph 39, onwards.  It seems -- not only does it seem to have very,

24     very little, I would say absolutely nothing to do with the reason why

25     he's being brought, but nor am I aware that he can be classed an expert

Page 19320

 1     historian or as an expert on political matters.

 2             And so, Your Honours, obviously we've got 30 days to put in our

 3     objections, and we'll put this into writing, but I'm merely pointing this

 4     out, which I also pointed out to Mr. Zecevic when I spoke to him.

 5             Your Honour, the final thing is this on him:  There's no mention

 6     of it in any of his CVs or in his previous testimony, but in actual fact,

 7     Professor Bajagic worked for the SNB in Ilidza in 1992.  He's, therefore,

 8     a witness as to fact.  And I merely point that out so that there can't be

 9     any misunderstanding about it.  He is not someone who was removed from

10     the events which he's going to be discussing.  I'm simply mentioning that

11     as an aspect which isn't otherwise clear from the report.

12             So, Your Honour, that's what we say about the expert.

13             JUDGE HALL:  Thank you.

14             MR. ZECEVIC:  Your Honours, the expert's CV is translated and is

15     in the e-court since Friday.  Since Friday, I believe.

16             As concerning the matters that are raised, I would defer my

17     explanation until I receive the formal objection by the Office of the

18     Prosecutor in relation to the contents of the expert report.

19             Concerning the fact that Mr. Bajagic was in SNB Ilidza in 1992,

20     it is a fact that it's known to the Office of the Prosecutor, and he has

21     been cross-examined about it while giving expert testimony in Popovic.

22     Therefore, I don't see any obstacle, him being expert witness, because of

23     that fact.  Among other things, Ilidza is not the municipality in our

24     indictment.  So this fact is known to the Prosecution.  I hear that the

25     Prosecution does not object to him being qualified to be police expert,

Page 19321

 1     and I don't think that the fact that he was a member of SNB in Ilidza in

 2     1992 creates an obstacle for him to testify as an expert witness.

 3             JUDGE HARHOFF:  Mr. Zecevic, did you, in fact, just say that

 4     "Among other things," this is -- page 10, line 18 of the transcript on

 5     the monitor, that "Ilidza is not the municipality in our indictment," or

 6     did you say that it was one of the municipalities?

 7             MR. ZECEVIC:  It is not.

 8             JUDGE HARHOFF:  Thank you very much.

 9             JUDGE HALL:  So it remains to be seen how this would --

10             MS. KORNER:  Yes, Your Honours, can I say straight away, this is

11     merely -- we're not objecting to Professor Bajagic being called.  We

12     agree he can give expert evidence.  I'm merely pointing out so there can

13     be no misunderstanding, when he comes, that he's also a fact witness.

14             JUDGE HALL:  Thank you.

15             Moving on to the next item:  Mr. Zecevic, there -- sorry.

16             Mr. Krgovic, it appears that there are a number of duplications

17     in the laws that the Zupljanin Defence is contributing to the law

18     library.  Assuming that you accept that these are duplications, I assume

19     that this is a -- something that's going to be corrected.

20             MR. KRGOVIC:  Yes, Your Honour.

21             The problem is that we received the expert report at quite a late

22     stage and we weren't able to ascertain which of the evidence listed there

23     is already in the database.  So we will -- when we review it, we will

24     review our 65 ter list; and all the evidence that's already been

25     admitted, we will take off our list.  And we'll get to that as soon as

Page 19322

 1     possible.

 2             JUDGE HALL:  Thank you.

 3             And in this vein, I trust that at this point there is no

 4     confusion between -- on any side as to what can properly be subsumed

 5     within the law library and which items would have to be exhibited because

 6     of any controversy through a witness in the usual manner.  I trust that

 7     everybody understands where we are with that.

 8             Ms. Korner, there was an issue that the OTP raised about

 9     documents on the Defence Rule 65 ter list not with the relevant

10     witnesses.  Could you expand on this, please?

11             MS. KORNER:  Yes, I can.

12             Your Honours, we can't say anything about the Zupljanin list

13     because not a single document is translated yet, so we have no idea what

14     any of them are.  But in respect of the Stanisic list, there are

15     documents on there which could have been put because they relate to

16     witnesses that the OTP called.

17             Your Honours, in the meanwhile, let me just find my list.

18             Your Honours, can I give some examples:  Document 00041D1, which

19     is an RS MUP report of the 29th of October, 1992, could have been put,

20     because I believe he's either the author or the -- certainly mentioned,

21     to ST-121.  Documents 123D1, 125D1, 127D1 could all have been put,

22     because they're authored by him, to the witness Mr. Pejic, and so on and

23     so forth.  There are a large number.

24             Your Honours, the only reason I mention that is it may be

25     necessary for us to seek to recall the witnesses if matters are dealt

Page 19323

 1     with by their witnesses who are going to deal with these documents which

 2     should have been put to the original witnesses, and that's the only

 3     reason I raise this now.  Particularly, I mean, it may be that some of

 4     the documents they acquired later, but certainly a number of them, and

 5     that one in particular, we can see they must have had at the time and

 6     decided, for whatever reason, not to put.  At the moment, we can't -- I'm

 7     sort of floating it as something to be aware of.

 8             JUDGE HALL:  Thank you.

 9             You have a comment, Mr. Zecevic?

10             MR. ZECEVIC:  Yes, a very short comment.

11             I'm not -- I'm not entirely clear about this observation by the

12     Office of the Prosecutor because in preparation of our Defence case we

13     come to possession of certain documents which we didn't have prior.  So,

14     therefore, we couldn't have shown the documents to the witness in

15     question while the witness was taking the testimony.

16             The second thing is there has been a number of witnesses for the

17     Office of the Prosecution that the Office of the Prosecution, at the very

18     late stage, dropped.  And, therefore, for example, with ST-121, ST-121,

19     as inspector, went with other inspectors to the field, and the documents,

20     I believe a number of the documents, is signed by all three inspectors,

21     or two, so, therefore, the author might be the other inspector who is

22     going to testify in our Defence as a Defence witness.

23             Therefore, I cannot comment anymore because of -- because the

24     observation is not specific enough, but we are willing to discuss that

25     with the Office of the Prosecution and give an explanation if we receive

Page 19324

 1     the list of the documents which Ms. Korner was referring to.  And we will

 2     explain when -- if this is the document which we found during the

 3     preparation of the Defence case, we will notify the Office of the

 4     Prosecutor of that or the reasons why we didn't cross-examine the witness

 5     who was testifying here previously to that document.  Thank you.

 6             MS. KORNER:  Your Honours, can I say, I repeat:  If it's

 7     documents that came to their possession later, that's one matter.  But,

 8     for example, the first document I mentioned, 0041D1, it was actually

 9     disclosed to us by the Defence in batch 2 of our disclosure, so it's

10     certainly -- that certainly isn't the document that they came into later.

11     But as I say, we'll see where we go.

12             JUDGE HALL:  Yes, thank you.

13             MR. ZECEVIC:  I was just -- one very short matter.

14             Concerning that particular document, this document is in one of

15     the footnotes to Mr. Bajagic's report, therefore.

16             JUDGE HALL:  Thank you.

17             The matter of the motion for protective measures regarding

18     several witnesses, could we have counsels' assistance as to what this is

19     intended to encompass?

20             MS. BUTLER:  Yes, Your Honours.

21             This essentially is another matter on which the Zupljanin Defence

22     would be seeking some clarification from the Trial Chamber.

23             You'll recall that on the 3rd of February this year you issued a

24     scheduling order, and I'll read out the terms of that order, if I may.

25     It said:

Page 19325

 1             "The Defence of Stanisic and Zupljanin to file their submissions

 2     pursuant to Rule 65 ter by noon on Monday, 28th March, 2011, on which

 3     date the Defence of Stanisic shall also provide a list of witnesses for

 4     the first two weeks of its case, together with any motions for protective

 5     measures of these witnesses."

 6             Now, rightly or wrongly, the Zupljanin Defence took that to mean

 7     that our motion for protective measures was not due on the 28th of March

 8     but that only the Stanisic motion for protective measures was due on that

 9     date.

10             Now, I note in your decision of last week, on the 31st, that

11     you've observed that the time for the Defence to file protective measures

12     motions has now passed, so, in essence, we would be seeking the leave of

13     the Trial Chamber to file such a motion in the near future.

14             There are four witnesses who might be affected by this matter.

15     I've informed my learned friend of those witnesses.  It's SZ-2, SZ-3,

16     SZ-7, and SZ-22.

17             Now, as Your Honours will be well aware, there are some

18     sensitivities in relation to the particular reasons for seeking these

19     types of protective measures.  So in the course of this week, our

20     investigators are meeting with these witnesses to confirm their exact

21     requirements and the reasons for them.  And if the Trial Chamber should

22     seek fit, we would be in a position to file that motion by the end of

23     next week.  I don't imagine that there would be any prejudice to my

24     learned friend, in light of the delay between now and start of our case,

25     and so that's what we'd be seeking, with the leave of the Chamber, to do.

Page 19326

 1             JUDGE HALL:  Thank you.

 2             And assuming that the Prosecution has no comment on the leave now

 3     sought, it is something which, after a brief consultation, we can deal

 4     with immediately.

 5                           [Trial Chamber confers]

 6             JUDGE HALL:  So the order of the Trial Chamber is that the

 7     Stanisic Defence has until the end of next week to deal with this matter.

 8     Sorry, the Zupljanin Defence.

 9             MS. BUTLER:  I'm grateful, Your Honours.  Thank you.

10             JUDGE HALL:  Thank you, Ms. Butler.

11             Is there -- and this is directed to Mr. Stanisic.  Is there

12     anything further that the Trial Chamber need formally say about the law

13     library that it hasn't said already?

14             MR. ZECEVIC:  I don't think so, Your Honours.  I honestly don't.

15     We have a clear understanding what needs to be done, and I think --

16     I think we are going in that direction.

17             JUDGE HALL:  Thank you.

18             MS. KORNER:  Your Honours, and our understanding is, and that's

19     why I actually raised it with Mr. Dygeus when we had got the e-mail,

20     everything -- that there was a problem at the end of the Prosecution

21     case, but everything has now been, as I understand it, sorted.  Well, I

22     see Ms. Savic slightly disagreeing with that, but -- and whatever it is,

23     it's very slight, Your Honours.

24             MR. ZECEVIC:  That is precisely why I said we are going in a

25     right direction.

Page 19327

 1             JUDGE HALL:  Thank you.  So we are ad idem on that matter.

 2             There is -- and the next item is classified as statements not

 3     provided with Rule 92 bis, ter, and quater motions.  This concerns two

 4     things: access through e-court and material requested to be admitted into

 5     evidence, and --

 6                           [Trial Chamber confers]

 7             JUDGE HALL:  Mr. Stanisic -- Orasanin's interview, is that -- it

 8     appears -- at the risk of sounding redundant, it does not yet appear to

 9     be in e-court.

10             MR. ZECEVIC:  Your Honours, we discussed -- because it's his --

11     it's the transcript of the interview conducted by the Office of the

12     Prosecutor, and apparently there has been some mistake, and we are

13     waiting for the revision of the transcript of his interview with the

14     Office of the Prosecutor.  And we are co-operating on that matter with

15     our friends from the Office of the Prosecutor.  And it will be -- I am

16     notified that it should be done very soon.  Thank you.

17             MS. KORNER:  There's a misunderstanding.

18             The one that we're revising, because it was an atrocious

19     transcription, is Milanovic, not Orasanin.  We haven't done anything

20     about Orasanin yet.  If that needs revising, we'll have a look at that as

21     well.

22             MR. ZECEVIC:  Well, I thought we were talking about Milanovic.

23     I'm sorry.

24             MS. KORNER:  No, it was Orasanin he was asking about.

25             MR. ZECEVIC:  If you'll just bear with me, Your Honours.  Let me

Page 19328

 1     consult with my team.

 2                           [Defence counsel confer]

 3             MR. ZECEVIC:  Your Honour, we will have the information in a

 4     couple of minutes, so if you will give me the opportunity to address that

 5     at the end of the session?

 6             JUDGE HALL:  Thank you, Mr. Zecevic.

 7             MR. ZECEVIC:  Thank you.

 8             JUDGE HALL:  Ms. Korner, you had raised the issue of the request

 9     to Croatia.  Could you enlighten us, please.

10             MS. KORNER:  I can.  The question is whether you want it in

11     public or in private session.

12             The filings were public, which is why I'm somewhat surprised by

13     what transpired.  But if Your Honours would prefer that it's -- I deal

14     with this in private session, I will.

15             JUDGE HALL:  We would go into private session.

16                           [Private session]

17     (redacted)

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Page 19329











11     Page 19329 redacted. Private session.















Page 19330

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20                           [Open session]

21             THE REGISTRAR:  We are in open session, Your Honours.

22             MS. KORNER:  Your Honours will recall this is an ongoing saga.

23             Your Honours will recall the to'ing and fro'ing and arguments

24     about the proof-of-death database, which Your Honours ruled on

25     eventually, and we stated that because we were taken by surprise at the

Page 19331

 1     challenge to the documentation and the challenge to the deaths of those

 2     who are listed on the back of our indictment, we would be acquiring

 3     further evidence.  Your Honours, this we have, in the sense that we have

 4     received a further 150 actual death certificates, which we didn't apply

 5     for before because, as I say, this is the first time this issue has ever

 6     arisen as a live issue.  And we have -- they have now been listed.  A

 7     list of the names and the dates of death has been provided to the

 8     Defence.  And as soon as we get a translation -- well, firstly, we'll

 9     give the death certificates, themselves, once they've been stamped.  Just

10     to add to the slight delay, it appears that the unit that does the

11     stamping moved itself, lock, stock, and barrel, last weekend somewhere

12     else and not much was happening.  And we'll provide those.  Plus we've

13     got translations coming for, effectively, a specimen, because they're all

14     the same, but the names and the dates are different.

15             And, Your Honours, we're simply saying this:  We would wish to

16     add those death certificates to the proof-of-death database, and it's as

17     simple as that.

18             Sorry, I'm told it's more than 150.  Oh, definitely more.  270,

19     Your Honours.

20             JUDGE HALL:  Thank you.

21             MR. O'SULLIVAN:  Your Honour, the Prosecutor says she expresses

22     surprise at the beginning of her submission, and we see the only thing

23     that we find surprising is her claim that this has arisen for the first

24     time.

25             The history of this matter, in fact, begins in July of 2009,

Page 19332

 1     2009, with the filing of our supplemental pre-trial brief, at which time

 2     we indicated to the pre-trial Chamber the matters which we agreed and

 3     which we disputed.

 4             At a 65 ter conference held on 24 August 2009 - page 264 - on

 5     behalf of the Pre-Trial Chamber, the Pre-Trial Judge thanked the parties

 6     for the supplemental submissions.  He said:

 7             "They were very good and they provide just what we thought they

 8     should provide, and I can commend both teams for submitting those

 9     issues."

10             In that submission, we told the Prosecution that if matters were

11     not agreed, they were disputed.  That's July 2009.  The first filing by

12     the Prosecution in relation to these death charts or the annexes was

13     July 2010, one year later.  You'll recall that, last summer.  A second

14     filing was made in October 2010.  And the third one in January 2011.  The

15     Prosecution has closed its case.  It's made its submission.  You ruled on

16     it on the 1st of February this year.

17             You will also recall that on the 1st of February, and now I refer

18     to transcript 19298 to 19300, my learned colleague Mr. Zecevic made an

19     oral application to you on behalf of both accused to reconsider your

20     February 1st, 2011, decision.  We said that the spreadsheet provided by

21     the Prosecution which links to other spreadsheets, without underlying

22     material, has no probative value and should not even be admitted into

23     these proceedings.  But that request for reconsideration made by

24     Mr. Zecevic on the 1st is still pending.

25             So we say that not only has the Prosecution closed its case,

Page 19333

 1     presented its evidence, there's still the pending request made jointly by

 2     Mr. Zecevic, and there is certainly no basis for the Prosecution to

 3     attempt to provide any other information it says relates to these

 4     matters.

 5             MS. KORNER:  Well, Your Honours, that's right, but, Your Honours,

 6     that's a partial explanation of what went on.  Your Honours know that

 7     it's much more complicated than that.  There was a long discussion about

 8     whether the exhumation evidence was going to be agreed.

 9             But the fact is this:  I appreciate that there was this

10     application for reconsideration, but it doesn't appear from either

11     Defence witness list that they're going to call any evidence disputing

12     what we say about it.  And we say that this database is an ongoing -- if

13     you like, a living instrument to which we should be entitled when we get

14     the extra evidence, which, as I say, the actual fact of complete

15     challenge to each and every victim named was not made clear until after

16     July.  And so we say we should be allowed to add those death certificates

17     to the database in the interests of Your Honours coming to the right

18     decision, apart from anything else.  So that's our application.

19                           [Trial Chamber confers]

20             JUDGE HALL:  We understand what counsel on both sides have said

21     on this issue, and it is something on which we don't intend to make any

22     definitive pronouncement at this point because we will have to look at

23     the concerns raised today in the context of the extensive background

24     which would have been reflected, we thought, in the ruling that we gave

25     on this matter.  So, obviously, it is something to which we're going to

Page 19334

 1     have to return.  Thank you.

 2             Sorry.  Are there any matters with which we haven't dealt today

 3     which we must address?

 4             I thought Mr. Zecevic was about to rise, but I see Ms. Korner is

 5     on her feet.

 6             MR. ZECEVIC:  Your Honours, there are three matters I wish to

 7     raise concerning the other matters.  The one is related to the -- to our

 8     request for disclosure of the documents from Croatia.

 9             And, therefore, I was notified that -- I think we might go to --

10     better to the private session.  I'm sorry.

11             JUDGE HALL:  Yes, private session.

12                           [Private session]

13     (redacted)

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Page 19335

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22                           [Open session]

23             THE REGISTRAR:  We are in open session, Your Honours.

24             MR. ZECEVIC:  Thank you.

25             And the last thing I wanted to raise is the motion filed by the

Page 19336

 1     Office of the Prosecutor opposing to our two 92 ter witnesses, which was

 2     filed on Friday.

 3             Now, I think it would be -- it would be more appropriate if we

 4     can discuss this matter in court in order to save the time of filing the

 5     response to the motion.  Perhaps, if we have time, we can do that today

 6     in order that -- because one of the -- one of the consequences on the

 7     Trial Chamber decision on that would be, obviously, expansion of the time

 8     needed for presentation of evidence for the Defence case, in case the

 9     Trial Chamber accepts the objection by the Office of the Prosecutor.

10             And I'm prepared to make a submission on that matter, if it

11     pleases the Court.  Thank you.

12             MS. KORNER:  Your Honour, on that basis, Mr. Zecevic needs leave

13     because it's a response to our response, but I'm perfectly happy to deal

14     with the matters in open court as well today.

15             JUDGE HALL:  Thank you, Ms. Korner.

16                           [Trial Chamber and Legal Officer confer]

17             MS. KORNER:  Your Honours, can I just ask:  If we deal with it

18     today - sorry - could we do it after the break?  Because I haven't got my

19     copies of the document with me.

20             JUDGE HALL:  We've decided that.

21             MS. KORNER:  Oh, right.  Thank you.

22             MR. ZECEVIC:  Just -- I'm sorry, one last matter.

23             I promised Your Honours the information on Orasanin interview.

24     It has been up-loaded in e-court.  It's 1D06-3314.  Thank you.

25             JUDGE HALL:  Mr. Krgovic, do you have any matters?

Page 19337

 1             MR. KRGOVIC:  No, Your Honours, that's all we have.

 2             JUDGE HALL:  Ms. Korner.

 3             MS. KORNER:  Your Honour, just one last matter, and that's this:

 4     We note that neither the names of Mico Stanisic nor Stojan Zupljanin

 5     appear on the witness list.  We are, therefore, assuming that neither

 6     intends to give evidence on his own behalf.

 7             Your Honour, the only reason I raise that is because, of course,

 8     it's open at a later stage to the Defence, if they so wish, to apply to

 9     call either accused to give evidence.  I'm well aware of the system that

10     pertains in civil law systems, that the Defence always has the right to

11     speak.  The only reason I'm raising it is because it's a matter of credit

12     that Your Honours may feel, Mr. Zecevic will be familiar with, because I

13     believe this happened in the Milutinovic trial, that if the decision is

14     taken later to call either of the accused, that, of course, may have an

15     effect on the - how can I put it? - not the credibility so much, but as

16     to the weight, if they give evidence after all their witnesses.  That's

17     the only reason I raise it.

18             JUDGE HALL:  Thank you.

19             So we would take the break now until 11.00, at which time we

20     would deal with the 92 ter lists.

21                           --- Recess taken at 10.10 a.m.

22                           --- On resuming at 11.05 a.m.

23             JUDGE HALL:  Thank you.

24             The first matter with which we would deal is the matter of leave

25     to counsel for Stanisic to respond to the Prosecution's response on this

Page 19338

 1     matter of the 92 ter list.

 2             Yes, Mr. Zecevic.

 3             MR. ZECEVIC:  Thank you very much, Your Honours, for granting the

 4     leave.

 5             Well, Your Honours, I just have a couple of observations and

 6     comments on the Prosecution response to our motion for 92 ter witnesses.

 7             Your Honours, both of these witnesses, what we offered as a

 8     92 package are their interviews conducted by the Office of the Prosecutor

 9     in both cases.  We, of course, interviewed these witnesses in preparation

10     of our Defence case.  Now, when we talked to them, it became apparent to

11     us that what they say to the Office of the Prosecutor is exactly what

12     they are saying to us, or more or less exactly, and that is why we

13     offered these two witnesses as 92 ter witnesses on the assumption that

14     because the interview was conducted by the Office of the Prosecutor, that

15     there would be no objection from the Office of the Prosecutor to tender

16     these two interviews as a 92 ter package.  Of course, we were mindful of

17     the time and resources needed for presentation of our Defence case.

18             The amount of time asked for, for these two witnesses, which is

19     two hours, comes from the fact that there is a number of documents, as I

20     stated before at the beginning of today's session, there is a number of

21     documents which we intend to show to these witnesses, which these

22     witnesses can verify, and admit them through them.  That is why we asked

23     for two hours.  In addition to that, to the documents which we intend to

24     show to them, there is additional statement by Mr. Milanovic, one of the

25     witnesses, and we wanted to explore the contents of that statement.  That

Page 19339

 1     is why we asked for two hours for these two 92 ter witnesses in direct.

 2             Now, you will surely recall, Your Honours, and I have a list of

 3     it here, of witnesses called by the Office of the Prosecutor as a 92 ter

 4     witness, and I would just name a few as examples:  ST-111 was a witness

 5     of -- by 92 ter.  Its direct examination lasted 3 hours and 41 minutes;

 6     ST-198, more than two hours; ST-193, more than three and a half hours;

 7     ST-187, more than six and a half hours.  Therefore, in this respect, I

 8     don't find the objection by the Office of the Prosecutor concerning the

 9     amount of time needed for these witnesses as justified.

10             Now, we are entirely in Your Honours' hands.  Of course, we have

11     nothing specifically to object to, to call these witnesses as viva voce

12     witnesses, but surely that will require at least triple the time that we

13     anticipated for --

14             JUDGE HALL:  Which is a question I was about to ask, if I might

15     interrupt, Mr. Zecevic.

16             MR. ZECEVIC:  Yes.

17             JUDGE HALL:  Without telegraphing how we're inclined to rule on

18     this matter --

19             MR. ZECEVIC:  Yes.

20             JUDGE HALL: -- if they were called viva voce, how long do you

21     anticipate their testimony would be?

22             MR. ZECEVIC:  Well, I would assume, Your Honours, six hours.  But

23     I can't be really positive because I never anticipated this.  I tried to

24     assess -- I tried to assess that over the weekend, but I haven't been in

25     contact with the witnesses over the weekend, so I would assume six hours

Page 19340

 1     for each.  Thank you.

 2             JUDGE HALL:  Thank you.

 3             MS. KORNER:  Your Honours, I don't think we need to say very much

 4     more than we've said in our response.  But Mr. Zecevic seems to think

 5     that because we interviewed these witnesses, ergo we accept they're

 6     telling the truth.  Well, Your Honours, it must be clear throughout our

 7     case that we do no such thing.  These particular witnesses were, in fact,

 8     dropped from our witness list, so that should say something.

 9             And, finally, Your Honours, the difficulty Your Honours may feel

10     is the witnesses we called 92 ter, apart from the ones that were objected

11     to, they'd always testified before or there was a written statement

12     attesting to the truth of the contents.  There's nothing in these

13     so-called interviews conducted by our office that even remotely begins to

14     say that these are truthful.  And, of course, the Rule does talk about a

15     statement or previous testimony.  And the difference between a statement

16     and this type of interview is that there is, in the statement, an

17     attestation to the truth of the contents and what is said.  But

18     otherwise, we've said what we intend to say in our response.

19                           [Trial Chamber confers]

20             JUDGE HALL:  So we will defer our decision on this question,

21     pending the receipt of the statements which the Chamber would wish to see

22     in order to assess the application.

23             There seems to remain an issue as to the dates when this material

24     that's in the process of being up-loaded in English into e-court, and

25     the -- could the Defence indicate when the material would have been so

Page 19341

 1     up-loaded and the Prosecution indicate when they would have seen it, when

 2     they would have -- well, confirm that they have access to it in English.

 3             MS. KORNER:  Well, Your Honours, as I understand it, anything

 4     that's been translated, we have access to because it's been up-loaded

 5     into e-court.  Our concern is, for example, as I said, there are

 6     40 documents untranslated for a witness that's due to start next week,

 7     and it may well be that we'll have to ask for further time before, at

 8     least, cross-examination.  And the same applies with the expert.  It

 9     depends on the nature of what these documents are.  So, I mean, I have to

10     say, 40 untranslated documents, potentially which are going to be used by

11     a witness, is a lot.

12             MR. ZECEVIC:  Well, Your Honours, according -- I said at the

13     beginning of today's session, according to the information of CLSS, the

14     12 -- the 11 footnotes to Mr. Bajagic's report will be up-loaded today.

15     The translations are due today and will be received in the course of

16     today and will be up-loaded.

17             As for the documents concerning our first witness, the Doboj

18     documents, they will be available and up-loaded in the e-court on

19     Wednesday.  That is the information which we have from the CLSS.

20             And since I'm standing, I would like to express our gratitude to

21     CLSS in their efforts to cope with this situation.  Thank you very much.

22             JUDGE HALL:  Thank you.

23                           [Trial Chamber and Legal Officer confer]

24             JUDGE HALL:  I'm reminded -- we're reminded by the Legal Officer

25     that the concern that the Chamber has is that in respect of the

Page 19342

 1     92 bis, ter, and quater motions, we need to know the date on which this

 2     material was released in e-court and, correspondingly, the Prosecution's

 3     confirmation of having access to it.

 4             MR. ZECEVIC:  Well, Your Honours, as far as I know, the

 5     documentation has been released on the 28th of March, in accordance with

 6     the scheduling order, except for the Milanovic statement which is now in

 7     the process of revision.  And this revision is due Friday, and that

 8     particular document will be up-loaded on Friday.

 9             MS. KORNER:  Your Honour, we confirm we've got all the

10     92 ter, quater, and bis statements, that they have been up-loaded, so we

11     confirm that.

12             Can I, Your Honours, just return, however, to the question of

13     Professor Bajagic.

14             Your Honours, Mr. Zecevic invited you to reconsider the order

15     that he had to find a new witness, and, of course, that really is an

16     important ruling.  And I wondered what Your Honours -- if Your Honours

17     had decided on that, because if it's a different witness, it affects both

18     Mr. Zecevic and us.

19             Technically, our 30 days runs from today, if we get all the

20     translations.  But, Your Honours, we're not going to stick by the letter

21     of the law, as it were, on this, and we will provide our response, as

22     indicated by us, today, before 30 days are up.

23             But we haven't had a response.  We said we'd like all the books,

24     please, that are referenced, from which there are going to be just an

25     extract translated, and I don't know that we got a response to that.

Page 19343

 1     That could make a difference.

 2             MS. SAVIC:  Your Honours, about half of the books have been

 3     up-loaded in B/C/S entirely in e-court, while the other half is being

 4     scanned as we speak.  One of the books we didn't have entire B/C/S copy.

 5     We've ordered it from a bookshop, and it will be scanned tomorrow and

 6     disclosed to the Prosecution as soon as we receive it.  Thank you.

 7             JUDGE HALL:  And if I understand what has passed between counsel

 8     so far, Ms. Korner, you anticipate that pending the -- having access to

 9     the entire book, you don't think you would be handicapped, but you just

10     wish to reserve your position in the event that there are some surprises

11     that you have to address.  So you're content to proceed in the -- with

12     the schedule as we now have it, subject to this reservation.  Do I get --

13             MS. KORNER:  The only thing that -- can I put this reservation

14     in, and it's really what happened with nearly all of our experts:  That

15     it may well be that at the end we're saying, I'm sorry, because of the

16     books or whatever it is, you can call him in-chief, but we'd ask he come

17     back for cross-examination at a later date.  So we're just reserving that

18     as a fall-back.  But other than that, Your Honours, we're content,

19     subject to books, translations, or whatever, to the witness starting on

20     the 2nd of May.

21             JUDGE HALL:  Thank you.  That's useful.

22                           [Trial Chamber confers]

23             JUDGE HARHOFF:  During the first part of this hearing today, the

24     issue of the order to Croatia was also raised.  And I don't think we need

25     to go into private session for saying what I have to say, because the

Page 19344

 1     Chamber discussed it during the break, and our position is that in our

 2     view there is nothing more to add on top of what is already contained in

 3     our decision of 16 March.  That is to say that the information that is

 4     provided by the Government of Croatia is being put to the disposition or

 5     the disposal of the Defence, and that's the way it should remain.

 6             MS. KORNER:  Well, Your Honours, then can I may it clear that

 7     what we're going to do is we are going to apply to the

 8     Government of Croatia that they should provide us with whatever they

 9     provide the Defence with.

10             JUDGE HARHOFF:  That's your decision.  But let's see if the

11     Defence is going to release parts or all of it when they receive it from

12     Croatia.

13             JUDGE HALL:  Well, that exhausts the list of the matters with

14     which we can deal today, and we are grateful to counsel on all sides for

15     their assistance in clarifying the next steps in this matter.

16                           [Trial Chamber and Legal Officer confer]

17             JUDGE HALL:  And we take the adjournment until Monday next, when

18     we would hear the opening statements of counsel for the Defence.

19             Thank you.

20                           --- Whereupon the Pre-Defence Conference adjourned

21                           at 11.24 a.m.