[ Confidentiality lifted by later order of the Chamber ]
Page 49
1 Monday, 15 June 2009
2 [Rule 65 ter]
3 [Closed session]
4 -- Upon commencing at 2.18 p.m.
5 JUDGE BONOMY: Good afternoon, everyone.
6 It looks as though we've booked a room that's too small for the
7 purpose today. We have a small army on the right here, representing the
8 Prosecution.
9 Mr. Karadzic, you've arrived on your own this time. As before,
10 we did extend an invitation to you to bring one of your legal assistants
11 with you, if you wished. And if we do have another of these meetings at
12 any stage, then you may find it would be helpful to everyone concerned if
13 one of the legal assistants could come.
14 I appreciate that you're anxious for meetings to take place in
15 public, but there are certain benefits to be derived from a more informal
16 discussion of certain aspects of the case.
17 It's not only that we need a bigger room, perhaps, for the
18 personnel involved, for obvious reasons, but these reasons stem from the
19 volume of material that is now available for you and for the Chamber in
20 dealing with the case, and no one person can master that very readily.
21 It does take time. And, therefore, I obviously need assistance. I
22 suspect that you would benefit from assistance at such meeting as well.
23 Now, can you confirm to me that you are hearing the
24 interpretation in B/C/S?
25 THE ACCUSED: [Interpretation] Yes, yes, I can.
Page 50
1 JUDGE BONOMY: The purpose of this meeting is to narrow down the
2 real issues that may emerge from these various motions that have come in
3 recently, particularly those related to Rules 92 bis and quater and
4 94 bis, and to see if we can cut through some of the paperwork that would
5 otherwise be necessary to pass back and forward between the parties to
6 resolve all the little bits and pieces, the minor issues that clearly
7 arise here. I will identify as many as I can and hope that you will
8 assist me by identifying others that can suitably be resolved in this
9 administrative environment.
10 I want to deal, first of all, with the 92 bis and quater motions.
11 I might as well take them in the order in which they are numbered by the
12 Prosecution. So let's look, first of all, at the first motion for the
13 admission of witnesses under Rule 92 bis, and that's witnesses for
14 11 municipalities.
15 I wonder if, Mr. Tieger or Ms. Uertz-Retzlaff, you could, first
16 of all, clarify for me how you define the 11 municipalities and the ARK
17 municipalities which are the subject of the second motion.
18 MS. UERTZ-RETZLAFF: Yes, Your Honour, I will address the issues
19 of 92 bis and 92 quater.
20 The 11 municipalities are actually those in Eastern Bosnia
21 down the Drina Valley
22 how we divided it, because there are different strategic goals related to
23 those.
24 JUDGE BONOMY: How many fall under the description "The ARK
25 municipality"?
Page 51
1 MS. UERTZ-RETZLAFF: The ARK municipality, actually, let me see.
2 Nine municipalities.
3 JUDGE BONOMY: And so 11 plus 9, and the remainder are Sarajevo
4 municipalities, are they?
5 MS. UERTZ-RETZLAFF: Yes.
6 JUDGE BONOMY: Now, there are two different categories of filings
7 which are causing concern to us, as well as to Mr. Karadzic, in relation
8 to these motions, and these are: confidential filings and ex parte
9 filings. Now, it's important, I think at the outset, that we distinguish
10 the two and identify where, in general, the problems may lie for the
11 administration of this whole subject.
12 Mr. Karadzic, much of the material is described as confidential.
13 But where it's simply described as confidential, you have access to it,
14 it is disclosed to you. Now, that may be -- may not really be a problem.
15 You've, however, asked for the confidential status to be lifted from the
16 material in general, and you seek to have it rendered public at a stage
17 when, of course, it's not really in the public domain, unless it's
18 evidence which has been given in an earlier case.
19 Now, can you tell me if there's a particular reason why you
20 consider that material should be public prior to the trial?
21 THE ACCUSED: [Interpretation] With all due respect,
22 Your Lordship, I will stick by the decision I made earlier, which is that
23 I will present all my views in a public hearing. The public at large is,
24 as I said, one of the rare allies that I have.
25 As far as the confidentiality issue is concerned, I can only
Page 52
1 state that confidentiality, as such, plays into the hands of what I term
2 false positions of the Defence and everything that supports the -- of the
3 Prosecution and everything that supports the Prosecution. There is no
4 reason why the material should not be public. It has not happened so far
5 in the history of this Tribunal in Bosnia that any witness was being
6 interfered with. For the rest of the hearing, I will be listening to
7 what you have to discuss with the Prosecution in silence.
8 As for my position, it remains the same as before.
9 JUDGE BONOMY: I'd like you to try to understand mine, though,
10 and I think it will be the position of the Trial Chamber.
11 I suspect I am right when I say that no case has been conducted
12 more in the public eye than the Milutinovic trial, which finished in
13 February, and virtually all of the evidence was presented in public, and
14 you'll see in the Tribunal no stronger defender of the objective of a
15 public trial than me. But it's a different thing to ask for the
16 statements of the witnesses, who may give evidence, to be presented
17 publicly before the trial, and indeed it may be a recipe for confusion,
18 because a witness who has given a statement may not, in fact, say the
19 same thing in the trial. And what's important is that the public hear
20 the actual evidence under solemn declaration in court, rather than, as
21 happens in many areas of our life today, political, sporting, and
22 cultural, rather than hearing speculation about what might or might not
23 actually take place in the trial. So I see a difference between making
24 public everything that actually is led as evidence in the trial and
25 making public the preparatory material as it is exchanged between the
Page 53
1 parties.
2 Now, if you can identify some prejudice that you may suffer
3 because the preparatory material is not public, then I would want to take
4 account of that in making a decision. But unless there is a particular
5 reason, then it may be that in fairness to everyone, including yourself,
6 the witnesses, and the Prosecution, that material, in general, that has
7 not already been brought into the public domain by presentation in court
8 should remain confidential.
9 Now, do you have any comment on that?
10 THE ACCUSED: [Interpretation] I can only express my gratitude for
11 the words that have been uttered and that have proved useful to me, and
12 that I will rely on, in terms of the reliability and importance of the
13 words uttered under an oath, unlike those stated in a political
14 statement. However, as for the rest, allow me to stand by my previous
15 position.
16 JUDGE BONOMY: Ms. Retzlaff, there are hints in what has been
17 said in the various exchanges that have taken place, in relation to these
18 various motions, that the Prosecution often maintained confidentiality
19 because there are protective measures, because there are specific reasons
20 for confidentiality, and then separately there is a broader statement
21 that you make that prior to the trial, in fact, resulting in the
22 presentation of material in court, there are good reasons for it
23 remaining -- the material remaining confidential. Now, if there had been
24 no other cases in this Tribunal, it would be easy then to say, just keep
25 everything confidential. But we have here the problem that you label
Page 54
1 material as confidential because it's in an annex related to a motion,
2 but some of it has actually been -- or is the result of the public
3 presentation of the evidence in court and is part of the public
4 transcript of previous trials. I take it that you see that as, in fact,
5 public material, albeit you're labelling it confidential in many
6 instances in the context of this case.
7 MR. TIEGER: I'll take that one, Your Honour.
8 I think as framed, the answer -- as specifically framed, of
9 course, I think the answer would be, yes, if a document, or testimony, as
10 you alluded to, that was presented publicly, and that is the -- that
11 represents the only issue in connection with the question of
12 confidentiality versus public, I think the question answers itself. We
13 would agree that's a public document. But in many cases, that particular
14 public presentation of the document or transcript is then linked to some
15 other aspect of protective measures and may run -- and again I know I'm
16 speaking in the abstract, but may run the risk, in certain circumstances,
17 of breaching a previously-imposed confidential measure.
18 So in the abstract, the proposition you just articulated is
19 accurate, and the Prosecution shares that. Where there sometimes may
20 appear to be confusion about that position is where that document or
21 testimony may somehow implicate other confidential measures.
22 MS. UERTZ-RETZLAFF: Perhaps I could just say, in general terms,
23 why we made this confidential annexes to each and every of these 92 bis
24 motions.
25 What can be seen from the confidential annex is actually the
Page 55
1 summary of a witness statement, and we have actually compiled just one
2 document, including witnesses who have protective measures and those who
3 don't. And to protect the identity of the protected witnesses, that's
4 why we filed it confidential, because just as an example, if a certain
5 witness who is a functionary or was a functionary in a certain
6 municipality and provided evidence in the past with protective measures
7 in relation to protection of identity, that's why we filed the whole
8 document confidential. Because if the public would see that, it could
9 easily say, Oh, that's the person X and so on that I knew from that
10 function. That's the reason for the confidentiality of these particular
11 document.
12 What we could have done, of course, we could have prepared a
13 public annex with those with no protective measures or a -- and a
14 confidential annex for those with protective measures, but we found it
15 more useful to have just one annex.
16 And in relation to the ex parte, I think that's obvious that's
17 the ones where Dr. Karadzic would not have access to for the time being.
18 JUDGE BONOMY: We'll come to them in a moment. But if that was
19 your reason for filing these confidentially, then I think the
20 Trial Chamber will order you to do the exercise you didn't want to do,
21 which is to split them into two. I thought there was a broader reason
22 and that's what Mr. Tieger was dealing with.
23 MR. TIEGER: And that is the reason enunciated in a
24 recent filing, Your Honour.
25 JUDGE BONOMY: Indeed, we've now you talking at cross-purposes
Page 56
1 here, which is difficult for me, because it's -- there's a recipe in
2 there for things going wrong. We need to be clear about what we're
3 doing, and it may be that even though there are the two reasons, it may
4 be that you ought to do this exercise and identify clearly what is the
5 subject of protective measures and identify clearly what is only being
6 regarded by you as confidential, not to be treated as confidential
7 because it's in the pre-trial phase.
8 MR. TIEGER: Well, if you permit me to reconcile those two
9 positions, I would say that the position most recently enunciated by the
10 Prosecution and that the Court summarised earlier, is the paramount and
11 principal basis for that. We recognise, however, that there may be
12 different views, and if that was the case, it is at least conceivable
13 that those could be parsed out in that way. However, we consider that
14 that has -- that's a secondary and, frankly, less satisfactory method of
15 proceeding because of, A, the risk of unnecessary errors that may arise
16 and unnecessarily breach confidentiality; and, 2, because it under-cuts,
17 in the end, the broader principle of trying to bring -- of trying to
18 maximize the prospect of as much public testimony as possible by
19 insulating the pre-trial proceedings from unnecessary problems,
20 interference, pressures, and so on.
21 JUDGE BONOMY: Right.
22 Now, there's a related problem, and that is the up-loading of
23 exhibits into e-court. I suspect, although I don't know, that all the
24 exhibits that you refer to here will have been disclosed in some form
25 already to Mr. Karadzic, but then in the context of presenting these
Page 57
1 motions, you bring relevant exhibits together in a group, but haven't got
2 them on e-court as yet. Now, what's happening on that front, and does
3 it, in fact, make it more difficult for him until they have been
4 up-loaded?
5 MR. TIEGER: Sorry, Your Honour, just one moment.
6 [Prosecution counsel confer]
7 MR. TIEGER: Well, two responses, Your Honour.
8 First of all, I think we'll find that the bulk, if not all, of
9 the exhibits will have been up-loaded in e-court by the end of the day,
10 or -- and I'm still speaking in the context of the motions, of course.
11 But, secondly, I believe that the material was previously
12 disclosed in a manageable form, and the uploading into e-court should not
13 be a matter of that much significance to the -- most of the responses and
14 to the motions, themselves.
15 JUDGE BONOMY: Now, we'll come to the Sarajevo motions later, but
16 have you had an opportunity yet to digest the decision on adjudicated
17 facts made by the Trial Chamber in relation to Sarajevo and to decide
18 whether, in fact, that has an impact on your motion for the admission of
19 92 bis evidence in relation to Sarajevo
20 affects, in general, the situation as we come to deal with the other
21 motions in relation to adjudicated facts.
22 MS. UERTZ-RETZLAFF: We have actually tasked people to identify
23 the witnesses that have -- are impacted by the adjudicated facts that
24 were granted and see who can be dropped. That's actually in the making.
25 JUDGE BONOMY: So you've answered my next question, I think,
Page 58
1 which would have been the extent -- in fact, you could be perhaps a bit
2 more specific. To what extent will you withdraw witnesses from these
3 motions if decisions are made -- favourable decisions, from your point of
4 view, are made on adjudicated facts to which these witnesses would have
5 spoken?
6 MR. TIEGER: Your Honour, we -- I mean, it was raised earlier in
7 the motions; it was raised in an earlier status conference. We're
8 looking at both factors that were alluded to in the filings and the
9 status conference: A, the relationship between adjudicated facts and the
10 evidence presented by the individual witness; and, B, the overall impact
11 of adjudicated facts and opportunities for -- the significance of the
12 rebuttable presumption, the opportunity for rebuttal evidence, and the
13 totality of factors involved in the determination of what impact the
14 adjudicated facts can have in connection with individual witnesses and
15 the totality of evidence about that particular component of the case.
16 JUDGE BONOMY: But it might make sense, if we are going to try
17 and programme how these motions are to be addressed, if we were to start
18 with the Sarajevo
19 decided until either the trial begins or is about to begin, but that
20 doesn't mean to say they ought not to be addressed meanwhile and the
21 situation considered by the Chamber with a view to announcing appropriate
22 decisions at the right time, depending on what the scale of the trial is
23 determined to be. Now, that's not prejudging the question whether the
24 trial will be on everything or only part of the indictment, but it does
25 leave open to the appropriate Chamber, whether it be this one or the
Page 59
1 actual Trial Chamber, to decide that certain parts of the indictment
2 would not be heard at this stage, in which case it would not be
3 appropriate to grant authority for 92 bis witnesses who affected that
4 part.
5 So the sensible thing, I think, will be to programme it so that
6 we deal with the 92 bis witnesses in respect of whom decisions have been
7 made under -- on adjudicated facts, first of all, and then for us to
8 decide -- well, it would be the third motion which will be addressed
9 next, because of the order in which Mr. Karadzic has to respond, and we
10 would look at that and the related 92 bis motions. That would reserve,
11 obviously, the second motion for much later and the related 92 bis
12 matters. And meanwhile, I think coincidentally or concurrently with
13 this, we can look at the 94 bis issue, and the eight, I think it's eight,
14 experts and the 92 quater applications, which are much more manageable
15 than the 92 bis applications are.
16 So that's just a rough outline. Now, do you have any comments to
17 make on that overall approach to this?
18 MR. TIEGER: No. I mean, I think I understand the logic behind
19 it, Your Honour, and even if it was a more arbitrary selection of the
20 priorities that we proceed by, I don't think we'd have a dispute. But I
21 certainly understand what -- I mean, it seems to be clear to me, what
22 information the Court is seeking and why.
23 JUDGE BONOMY: This has to be work in progress, I think, and it
24 has to be viewed as an ongoing exercise which will actually still be
25 ongoing even after the trial has started. It would not be possible to
Page 60
1 view it otherwise, I think.
2 Now, Mr. Karadzic, do you have any comment to make on anything
3 that's been discussed so far, and in particular on the idea that we will
4 stagger the dates for responses for these various motions so that it
5 makes the whole exercise more manageable both for you and for the
6 Trial Chamber?
7 THE ACCUSED: [Interpretation] As you know, I am going to refer to
8 this in public session as well. All I wish to say is that I am
9 cautiously viewing matters which are not going to make anything easier
10 for me. It might make my position even more difficult, actually, because
11 embarking on the proceedings before I am completely acquainted with the
12 case of the Prosecution, for me, is dangerous and unacceptable. I really
13 need to see everything, review everything, because it's not possible to
14 do that during the actual trial. The Defence will not be able to manage
15 to do that then.
16 JUDGE BONOMY: Thank you.
17 And I think I'm right in saying there's no ex parte material
18 related to the first one.
19 MS. UERTZ-RETZLAFF: No, Your Honour.
20 JUDGE BONOMY: And am I right in saying that that is broadly the
21 position -- the second one is broadly the same as the first one; we've
22 got confidential appendices or an appendix, appendix A, B, but nothing
23 ex parte?
24 MS. UERTZ-RETZLAFF: Yes, Your Honour. It's also the same for
25 the Sarajevo
Page 61
1 for - let me just double-check - for Srebrenica. The late disclosure, of
2 course, that's the one with the ex parte. Four experts. It is also --
3 JUDGE BONOMY: Ms. Retzlaff, you're ahead of me now. Just, let's
4 deal with this in stages.
5 MS. UERTZ-RETZLAFF: Yes.
6 JUDGE BONOMY: Now, which one are you drawing my attention to as
7 having the ex parte appendix?
8 MS. UERTZ-RETZLAFF: That's the late disclosure filing. That's
9 the seventh motion, the seventh motion.
10 JUDGE BONOMY: We'll come to that.
11 So the first five, by the end of today, all the exhibits will be
12 up-loaded into e-court, and all the material will be in the hands of
13 Mr. Karadzic in un-redacted -- completely un-redacted form; is that
14 correct?
15 MS. UERTZ-RETZLAFF: Yes, Your Honour.
16 JUDGE BONOMY: And in relation to number 6, is there any issue in
17 relation to protective measures for witnesses that has not yet been dealt
18 with?
19 MS. UERTZ-RETZLAFF: No, Your Honour. Number 6, that's the
20 hostages. There's also the usual appendix, confidential appendix,
21 because of -- one of the witnesses had testified partly in private
22 session, so that's why this one is confidential.
23 Your Honour, if I remember correctly, in relation to the
24 12 witnesses, some of the 12 witnesses are international witnesses for
25 countries where protective measures were requested according to Rule 70,
Page 62
1 and this motion is in front of you. I just can't exactly now think which
2 of the 12, but it's definitely several.
3 JUDGE BONOMY: Well, I had a note that there are three witnesses
4 for whom protective measures might be sought, but I don't think we have
5 such an application at the moment.
6 [Presiding Judge and legal officer confer]
7 JUDGE BONOMY: There appear to be three witnesses who would be
8 among the 12, I assume, in the sixth motion for whom you have measures
9 approved that were applied by Rule 70, under Rule 70.
10 MS. UERTZ-RETZLAFF: I think we just filed it on Friday, our
11 motion.
12 JUDGE BONOMY: It seems to us that we're talking about two
13 separate things, and if I give you the numbers of these witnesses, you'll
14 be able to identify them. They are KDZ-112, 196, and 259. 112, 196, and
15 259.
16 [Prosecution counsel confer]
17 MS. UERTZ-RETZLAFF: Your Honour, I just was -- my colleague here
18 just told me that for these three, we actually do have protective
19 measures. And the other motion that I referred to was actually five from
20 this other country, so --
21 JUDGE BONOMY: In this case, have the statements of these
22 witnesses now been disclosed?
23 MS. UERTZ-RETZLAFF: Yes, Your Honour.
24 JUDGE BONOMY: But not their identities; is that the position?
25 MS. UERTZ-RETZLAFF: I think including the identity.
Page 63
1 JUDGE BONOMY: So everything has been disclosed?
2 MS. UERTZ-RETZLAFF: Yes, everything is disclosed. It's only the
3 protection towards the public.
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Page 70
1 JUDGE BONOMY: Okay. And then 198?
2 MS. UERTZ-RETZLAFF: There's nothing to hold back.
3 JUDGE BONOMY: There were parts of private session in the
4 Krajisnik trial. Does Mr. Karadzic have the private session parts of
5 that evidence?
6 MS. UERTZ-RETZLAFF: Yes, Your Honour.
7 JUDGE BONOMY: And then the 16 witnesses. Now, there are two
8 reasons given for seeking to lead or to present this evidence in writing.
9 I think in 14 instances, that is the death of the witness, and in 2 it is
10 illness. Is that a correct summary?
11 MS. UERTZ-RETZLAFF: That's correct.
12 JUDGE BONOMY: I think, in relation to the question of illness,
13 you may need to do a little more work. I, for one, would expect that
14 before a witness might not be required to give evidence through illness,
15 that witness would have to be said to be unfit to give evidence because
16 of illness. And that would have to have regard to the possibility of
17 evidence through a videolink from a location convenient for the witness
18 or, alternatively, evidence by commission; in other words, evidence from,
19 is it, Rule 71 that provides for --
20 MR. TIEGER: Yes.
21 JUDGE BONOMY: Now, in the case of one of the witnesses, you may
22 be fairly close to that situation already, but not in the other one,
23 I think. So I invite you to review the material you submitted in support
24 of these two, and to supplement it if you're able to.
25 Now, this may be an appropriate time to take them all together
Page 71
1 and for you to tell me, Mr. Tieger, if this is your area, where you are
2 in identifying whether it really is necessary to maintain protective
3 measures in respect of witnesses who are deceased, and I think that
4 applies to one of the sixteen and applies to some of the others we've
5 just been discussing. It applies to 446; is that right?
6 MS. UERTZ-RETZLAFF: I think 044, Your Honour.
7 MR. TIEGER: 044, I think.
8 JUDGE BONOMY: Yes. That's the one in your motion for 16. But
9 in addition to that one, it applies to 446 and 290 and 198?
10 [Presiding Judge and legal officer confer]
11 JUDGE BONOMY: So that's just -- does that mean there are a total
12 of three deceased witnesses for whom there are protective measures? You
13 tell me, because that's --
14 MR. TIEGER: Your Honour, I can only say that conforms with my
15 recollection of that. I was looking at particular motions, and I hadn't
16 comprehensively the number of --
17 JUDGE BONOMY: All right.
18 [Presiding Judge and legal officer confer]
19 JUDGE BONOMY: It may only be 446 and 44. However --
20 MR. TIEGER: For 198, there were no --
21 JUDGE BONOMY: So 446 and 44. Now, I know that the Rules say
22 that these measures continue in force, and it's a reasonable
23 interpretation that that applies after the death of the witness. And I
24 know the Rules say that it's for the person who really wants to vary the
25 conditions to make the application. But I think in the circumstances of
Page 72
1 this case, it's unrealistic to expect Mr. Karadzic to roll that ball
2 without having some background information. So what steps have you taken
3 to find out if these measures really are necessary, now that the
4 witnesses are dead?
5 MR. TIEGER: Your Honour, I haven't heard -- I think as we
6 indicated in our recent submissions, we largely accept and share that
7 view, and indicated that we wished the opportunity to contact family
8 members to determine whether or not there is a basis that extends beyond
9 the now -- that no longer meaningful individual security of the deceased
10 witness. I haven't heard back on that. I understand from the Court
11 that's a matter of priority, and we undertake to do that, to determine
12 whether or not those -- sort of reverse the presumption and determine for
13 ourselves whether or not those protective measures any longer have
14 meaning.
15 JUDGE BONOMY: Well, I'm grateful for that, but there are two
16 aspects to this. The original application could well have been based on
17 the security of persons other than the witness, and that information you
18 should already have. If there are no additional issues, on the face of
19 it, then -- and you would be relying on something else, at this stage
20 I think the onus would inevitably be on you now to be up-front about that
21 and explain that the previous basis has gone, but there is a separate
22 basis, and to make an application.
23 Now, I'm minded to fix a time-limit for this, because this again
24 has a scope for delaying the process. And bearing in mind that the next
25 status conference would be the 1st of July, then I think if you had from
Page 73
1 today until the end of next week to submit any application, on the
2 understanding that the Trial Chamber would expect you to file appropriate
3 applications for removal of these measures before whatever Chamber is
4 responsible for them by that date, so that would be, I think, by the 26th
5 of June.
6 Now, if you don't feel able to make the appropriate applications,
7 but you see the situation as meriting an application at least for
8 consideration, an application at the instance of the accused, then we
9 would expect you to furnish the accused with the information to make that
10 application, if you feel it's not one you reasonably can make, for some
11 procedural reason or for any other reason. But either way, by the 26th
12 of June, I think this should be either the subject of applications to
13 appropriate Trial Chambers or otherwise resolved. All right?
14 MR. TIEGER: Thank you, Your Honour.
15 JUDGE BONOMY: Now, Mr. Karadzic, do you have any other
16 suggestions to make about how this might be done? The aim here is to get
17 to the point where you get as much information as you can. To me, it is
18 always an administrative obstacle to the expeditious conduct of the
19 trial, to have any measure to overcome that restricts your access to
20 material, and if you can think of any other way in which we might get to
21 the point of providing you with a full and free access, then please
22 assist us by telling us of any idea you have.
23 THE ACCUSED: [Interpretation] Thank you.
24 I am fully in agreement with your view of the problem, and should
25 I come up with an idea of resolving this, I will let you know. Thank
Page 74
1 you.
2 JUDGE BONOMY: Thank you very much.
3 Now, there are two other witnesses for whom more recent
4 applications have been made, and these are referred to as 297 and 172.
5 These two are named on your list of witnesses, Mr. Tieger, are they?
6 They are on your 65 ter list in their true names?
7 MR. TIEGER: Yes, Your Honour.
8 JUDGE BONOMY: Thank you.
9 Now, in relation to 297, there's no material which has not been
10 given to Dr. Karadzic; is that correct?
11 MS. UERTZ-RETZLAFF: Yes, Your Honour.
12 JUDGE BONOMY: And in relation to 172, I take it that --
13 MS. UERTZ-RETZLAFF: The same.
14 JUDGE BONOMY: Yeah, and indeed he has access to confidential
15 material which, in the view of the Prosecution, ought not even to be
16 confidential, and that's the subject of an application at the moment; is
17 that correct?
18 MR. TIEGER: Sorry, Your Honour, that's -- the reference is
19 escaping me at the moment.
20 JUDGE BONOMY: This is 172 is Babic, and this is the evidence on
21 the 3rd of June, 2004, where the evidence remains confidential, the
22 transcript remains confidential, albeit it should -- the confidentiality
23 should have been raised.
24 MR. TIEGER: Oh, I'm sorry, I --
25 JUDGE BONOMY: It doesn't affect disclosure.
Page 75
1 MR. TIEGER: Right, I misunderstood what the Court was saying.
2 JUDGE BONOMY: Okay.
3 Now, one other thing that does send a shudder through my spine in
4 relation to this witness, though. Am I right in calculating that you
5 might be endeavouring to tender 538 exhibits through this one witness's
6 written testimony?
7 MS. UERTZ-RETZLAFF: That's correct, Your Honour. That's
8 actually the exhibits that were dealt with in the previous cases, so it
9 was always a witness who came with a lot of documents related to the
10 developing of the -- of various political bodies and the like.
11 JUDGE BONOMY: I alluded briefly earlier on to the possibility
12 that when it comes to trial, it may not be possible for this trial to
13 proceed on the basis of the whole indictment. One other possibility, of
14 course, is to be much more selective about the way in which evidence, in
15 relation to the whole indictment, is presented. In other words, it may
16 not be possible to present evidence covering every municipality, even
17 though you've cut down the number of municipalities from the original
18 indictment. One still has to ask, How many municipalities do you need to
19 concentrate on to prove a point? And that may be something you have to
20 review. And here's a third example: You may have to, I think, also
21 consider whether, in relation to all of these witnesses, when it comes to
22 trial, you seek to present all the testimony of the witness and all the
23 exhibits, or whether now that you've got to this state in your knowledge
24 of all the events in the former Yugoslavia
25 MR. TIEGER: No, understood, Your Honour. It does occur to me
Page 76
1 that that determination rests, at least in small measure, upon some
2 guide-lines with regard to exhibits and testimony. So if, for example,
3 testimony deemed quite significant by the Prosecution was accompanied by
4 exhibits that were perhaps not so individually significant, but there was
5 a ruling that testimony should not come in unless the exhibits referred
6 to during the course of that testimony were also appended or exhibited,
7 then that would be a consideration as well. But, of course, in the
8 abstract, such considerations aside, we certainly understand what the
9 Court is saying.
10 JUDGE BONOMY: But you'll see also that the Court is invited, in
11 this motion, to consider the situation in the abstract. Principally, I
12 accept because we fixed a date for the submission of these motions, and
13 therefore they had to come in, but it may be that we will be either into
14 the trial or near to the date of trial before it's possible to sensibly
15 address such a massive quantity of material as there is for that one
16 92 quater witness.
17 And that then leads -- I think the final one of these is the
18 evidence of eight expert witnesses.
19 Now, Mr. Karadzic, you could help me, I think, in this area, if
20 you're willing to. The Prosecution seek to present in writing evidence
21 of handwriting experts and evidence of certain forensic evidence. You
22 have applied to the Registry for authority to engage an expert to review
23 the handwriting, and I'm grateful for that. That followed a discussion
24 at the last status conference. I had also hoped that you were going to
25 apply for authority for a forensic science expert to start reviewing some
Page 77
1 of the forensic science material. Are you likely to do that? Because it
2 would have an impact on the timing of when we deal with this application.
3 There would be good reason, then, for postponing dealing with this until
4 your expert had a chance to look at the material.
5 THE ACCUSED: [Interpretation] I am in the process of assigning my
6 experts who are going to study the material. I do have a problem,
7 because I am being required to be very specific about the matter that my
8 experts are going to be dealing with. My experts at the moment are
9 dealing with the findings of the OTP experts. I cannot be more specific
10 than that. That is his job or their job, to study the findings of the 26
11 expert witnesses of the OTP, and they are going to prepare me for the
12 examination-in-chief and the cross-examination.
13 This is all I can say at this time. And as you said yourself,
14 the bureaucratic nature of this institution may prolong this whole
15 matter. I am not aiming here at anyone in particular, but at the Rules,
16 which, to me, are incomprehensible and are overly bureaucratic.
17 JUDGE BONOMY:
18 MS. UERTZ-RETZLAFF: The other one, Your Honour, is not included
19 in this motion because --
20 JUDGE BONOMY: Only one is included here?
21 MS. UERTZ-RETZLAFF: Yes.
22 JUDGE BONOMY: So all the others are forensic science or
23 pathology, are they?
24 MS. UERTZ-RETZLAFF: Yes.
25 JUDGE BONOMY: So I misspoke, Mr. Karadzic. Only, I think,
Page 78
1 Dr. Barr is involved with handwriting. The others are all involved in
2 forensic science or pathology. It should be possible for you to apply to
3 the Registry for authorisation of appropriate experts, I imagine, to deal
4 with this motion, the subject matter of this motion, apart from anything
5 else. And as I say, you've already done so in relation to Dr. Barr. So
6 I invite you, after this meeting today, with whichever of your assistants
7 is dealing with this, to discuss an application for an immediate
8 allocation of an expert to help review this and see if this is, again,
9 something that can be resolved.
10 THE ACCUSED: [Interpretation] I have already submitted a request
11 for a handwriting expert from London
12 Registry to be specific in terms of what I expect from him. What I expect
13 from him to completely study the findings of the OTP expert, and I'm
14 afraid that the Registry may require me to submit, for all 26 experts,
15 demands that I'm not able to meet. I am not able to say what I expect
16 from my expert until I look at the findings of the expert of the other
17 side. This is quite logical. So I am expecting my experts to review the
18 findings of the experts of the other side and to help me prepare. If
19 there are any ways to perhaps influence the Registry, perhaps it would be
20 a good thing so that this whole thing could move further faster.
21 JUDGE BONOMY: I'm not sure I'm clear on what you've actually
22 done. Certainly, I know that you've applied in relation to handwriting,
23 but have you made any application to the Registry in respect of any of
24 the pathology or forensic science evidence experts?
25 THE ACCUSED: [Interpretation] I have compiled their CVs, and I am
Page 79
1 expecting now to see how I am going to resolve this problem of this
2 request for specificity. I don't wish to be submitting requests and then
3 have them returned with the request that I have to be more specific, and
4 I cannot be specific or more specific until my experts review the
5 findings of the experts from the other side.
6 JUDGE BONOMY: Is there one of your assistants, in particular,
7 who deals with this aspect of the case?
8 THE ACCUSED: [Interpretation] Yes. I have compiled the CVs and
9 the bibliography for a certain number of experts, and I'm satisfied with
10 the abilities of the assistant, that in order to be able to ask the
11 Registry to allocate funds for this, I am expected to be more specific as
12 to their field of expertise. But their field of expertise, as far as I'm
13 concerned, would be to review the findings of the expert of the OTP. I
14 cannot say anything more than that, so I'm waiting to discuss with the
15 Registry what else it is that I am asked -- being asked to do. My
16 request for the graphologist from London
17 JUDGE BONOMY: Well, I will certainly look at this, but I was
18 really asking if you were able to identify to me which of your assistants
19 is dealing with this, because I'd be happy to take up with him and the
20 Registry the question of how most quickly to deal with this problem.
21 THE ACCUSED: [Interpretation] Everybody is doing everything. As
22 for the handwriting expert, he was being dealt with by Mr. Robinson, and
23 then Mr. Petronivic [phoen] from Belgrade
24 witnesses who will be coming from my country.
25 JUDGE BONOMY: Okay. I will take such steps as I can to try to
Page 80
1 have this dealt with quickly.
2 THE ACCUSED: [Interpretation] If I may add, we're also talking
3 about the speed, but also the number of hours, and the Registry is quite
4 restrictive in terms of the hours. And on those grounds, this is
5 something that makes it very difficult to do the job properly.
6 JUDGE BONOMY: So I understand that particular problem, and it's
7 related to the requirement for specificity in your application. The
8 Registry, however, will require to be flexible to deal with a case of
9 this magnitude. That makes them, obviously, expect from you a degree of
10 detail that is quite demanding, and I recognise that that is something
11 which takes time. On the other hand, it's sometimes a reason for not
12 doing a particular job because you have so many others to do, and this
13 one is quite tricky. So we have to cut through that and somehow or other
14 bring your assistant and the Registry together to try to resolve this
15 quickly.
16 Now, I have two other matters, broadly, to deal with. We'll need
17 a break at some stage, I think. We have to break after 90 minutes, do
18 we?
19 THE REGISTRAR: Your Honours, I think we can carry on until the
20 designated 4.30.
21 JUDGE BONOMY: All right. Give me your best offer, I was going
22 to say, but that's even better. Thank you.
23 Let me deal with one which I think may be simpler than the other.
24 The two issues are witness -- one is witness related, the question of
25 contact with witnesses, and I'll come back to that because I think that's
Page 81
1 a bit more complicated. The other one is your Holbrooke Agreement
2 motion, and there are two outstanding -- there are three outstanding
3 matters, in fact. One is the assistance you've requested from the
4 United Nations.
5 I've not had an opportunity to deal with this further yet,
6 although there is a response from the Director of Legal Affairs at the
7 United Nations which you will have seen. My intention is to -- you have
8 not seen it? It was filed, filed on the 4th of June. It came in the day
9 of the status conference, but it came in after the status conference was
10 finished, and therefore I was not able to address it then. You have seen
11 that?
12 Ms. Davidson will show it to you, and you can --
13 THE ACCUSED: [Interpretation] I thought that you had received
14 something today.
15 JUDGE BONOMY: No, this is the one, the only response, but I have
16 not had an opportunity to take this up yet.
17 THE ACCUSED: [Interpretation] This has not reached me.
18 JUDGE BONOMY: That's very strange, because this was filed and
19 everything should go to you.
20 THE ACCUSED: [Interpretation] Probably because it's addressed to
21 you.
22 JUDGE BONOMY: Yes, I know that Mr. Robinson has seen it because
23 there's been some e-mail exchange with Mr. Robinson about it, so you can
24 take it that someone on your behalf has certainly seen it. But I think,
25 in the circumstances, you won't be able to answer my question, because
Page 82
1 what I propose to do is take up with the Director of the Office of Legal
2 Affairs of the United Nations how we can speed up this exercise, so I
3 intend to telephone her. I will do so in the presence of someone from
4 the Registry so that what takes place between us is recorded, but I
5 wanted the parties to have the opportunity of commenting on that
6 suggestion. If either of you objects, then I have to reconsider what I'm
7 doing. I may still do it, but I would reconsider how I was going to do
8 it. But I want to alert you to the fact I'm going to have that
9 conversation with her and to see if you have any objection.
10 First of all, Mr. Tieger.
11 MR. TIEGER: No, nothing arises at the moment, Your Honour. If
12 we think of something that you or we haven't thought of, we'll raise it,
13 but nothing appears at the moment.
14 JUDGE BONOMY: And, Mr. Karadzic, do you see a problem there or
15 would you rather not comment without further consideration of the matter?
16 THE ACCUSED: [Interpretation] I would rather review the problem.
17 We are talking about your having a conversation with the director of the
18 legal service of the United Nations.
19 As for Ms. Hartmann, today we have sent the specific information
20 about where the transcript of the conversation is between Madam Arbour
21 and General Clark. On the other hand, we are expecting from the Swedish
22 government and from Mr. Bildt a response, which we have not received so
23 far.
24 JUDGE BONOMY: I'll come to that in a moment. Can I ask you,
25 though, in relation to the United Nations, to review the position
Page 83
1 immediately after this meeting today. A copy of this document will be
2 given to you, personally. I would be grateful if you would speak to
3 Mr. Robinson about it and perhaps very quickly make a filing indicating
4 whether you really have any serious objection to me speaking to the
5 director with a view to arranging -- it's really for arranging for
6 Mr. Robinson to deal with this directly with her, as he suggested. So
7 please do that after today's meeting.
8 As -- yes, sorry?
9 THE ACCUSED: [Interpretation] My legal advisors, who are not from
10 here, can be here three days, and you know yourself this is something
11 that we discussed and they are being reimbursed at the fee of 25 Euros an
12 hour. Mr. Robinson can spend more time, but he's not obliged to do that.
13 I am interested in establishing cooperation with the
14 United Nations. This is just one of the first demands I have in relation
15 to the United Nations. There will be more, because this trial cannot be
16 conducted were the United Nations to deny providing documents, in view of
17 the fact that this institution is an institution of the United Nations.
18 I am going to take a day or two to discuss the matter with Mr. Robinson,
19 and he will definitely call you and state what my position on this matter
20 is. Thank you.
21 JUDGE BONOMY: Thank you. I note what you say about the
22 information from Florence Hartmann, and that is helpful.
23 The other matter you mention I also intended to raise with you,
24 and that's the question of Mr. Bildt. Now, there has been a response
25 which has come to us through Mr. Robinson, I -- did it come -- it came
Page 84
1 direct, so you may well not have seen this. This came in only at
2 lunchtime today, but it says in terms that the same information was sent
3 to Mr. Robinson, and the information is that Mr. Bildt will meet with him
4 as long as a Rule 70 order is made, so that the information would not --
5 any information conveyed would not be used without the authority of the
6 Government of Sweden
7 relation to other governments, in particular the United States. If
8 that's your position in relation to an interview with Bildt, the Chamber
9 would make an order today, a Rule 70 order, which would allow you to go
10 ahead with that interview.
11 THE ACCUSED: [Interpretation] My general position is to respect
12 the requirements of each government because there will be many countries
13 that we will be seeking sensitive documents from. So you have my
14 position in advance that we are going to adhere to all positions arising
15 from Rule 70.
16 Do I need to make a motion or request, this letter for a Rule 70
17 decision, or you are just going to do that based on the letter you have
18 already received?
19 JUDGE BONOMY: No. I'm going to ask my colleagues in the
20 Trial Chamber to make such an order, in light of what I interpret as your
21 motion just now, in view of the terms of the Swedish government's
22 communication.
23 [Presiding Judge and legal officer confer]
24 JUDGE BONOMY: So I note that you approve of that course of
25 action, that that's what you seek, and I will ensure that a check is made
Page 85
1 with Mr. Robinson before the order is issued so that we can see exactly
2 what has been communicated to him so far as it's relevant to the decision
3 we have to make.
4 I'm assuming in all of this, Mr. Tieger, that you would have no
5 comment to make.
6 MR. TIEGER: Thank you, Your Honour. Correct.
7 JUDGE BONOMY: Now, as far as the further two witnesses from the
8 United States are concerned, they've now declined, as I understand it, to
9 authorise an interview. We can do one of two things here. Either you
10 can withdraw the motion for a Rule 70 order or the Trial Chamber can deny
11 the order. I think the preferable course would be for you to withdraw
12 the motion.
13 THE ACCUSED: [Interpretation] I cannot state my position on this
14 today. However, if I will be withdrawing my requests for relevant
15 evidence, then this trial will make no sense. I wish the countries which
16 support this Tribunal and member countries of the UN, I wish that they
17 did not withdraw or withhold any evidence they might have, and of course
18 I will be adhering to the order issued under Rule 70.
19 JUDGE BONOMY: You misunderstand the position, though. I'm not
20 suggesting you withdraw your request to the United States for
21 information. What I'm suggesting is that you withdraw your motion for a
22 Rule 70 order, because without the agreement of the United States to the
23 terms of the Rule 70 order, it's impossible for the Trial Chamber to make
24 one. Now, if you have reservations about doing that, then the Chamber
25 will simply deny the motion, and it will do it later today. I just give
Page 86
1 you the opportunity, if you wish to take it.
2 THE ACCUSED: [Interpretation] I will be seeking that the
3 Trial Chamber insist with the United States of America, which had, on
4 their part, promised to cooperate with the Tribunal, that the
5 Trial Chamber insist that the United States honour the requests put
6 forward by the Defence.
7 JUDGE BONOMY: I understand that also, but the mechanism for
8 doing that is not through Rule 70. You'll have to follow another course
9 of action, which you can discuss with your legal advisors.
10 Anyway, we've exhausted that topic, and that, therefore, leaves,
11 I think, two separate motions which relate to access to witnesses.
12 And while we discuss this, I think we should have present with us
13 the -- a representative from the Victim and Witnesses Section, and
14 I think Mr. De Witt said that he would be available. He's the senior
15 member of staff responsible for that section, so could you invite him,
16 please, to come into the room, Court Deputy.
17 THE REGISTRAR: Mr. De Witt will be on his way, Your Honour.
18 JUDGE BONOMY: Thank you.
19 Mr. Karadzic, I can explain to you, before Mr. De Witt arrives,
20 the situation so far.
21 You have asked the Trial Chamber to order the Victims and Witness
22 Section to do a number of things: to get -- to be provided with details
23 of the witnesses that the Prosecution intend to call, and then to ask
24 these witnesses whether they consent to be interviewed on your behalf; to
25 ask them also whether they would like a representative of the Prosecution
Page 87
1 to be present, and to tell you the results of these inquiries. You then
2 ask for a number of other things which are secondary to this. One is for
3 the transportation of these witnesses to The Hague, and the making of
4 appointments for interview.
5 Now, the Registry have responded to that application to say that
6 that is not a function for them to undertake. The only thing that they
7 consider appropriate for them is to check with the witnesses, whether
8 they consent to their details being given to you. But they don't see a
9 function for them in speaking to the witnesses to find out if they are
10 agreeable to being interviewed by your representative.
11 Unusually, the Prosecution have not responded to this, and we
12 don't have a Prosecution position. Now, Mr. Tieger, that might be where
13 we should start on this exercise.
14 MR. TIEGER: My recollection, Your Honour, is it was raised at
15 the status conference. There was a fairly detailed oral response, and
16 the Court suggested, in fact, that perhaps there was no need for any
17 further response.
18 JUDGE BONOMY: All right. You remind me of the discussion, and
19 if that's the reason, then I understand it.
20 You'll need, however, to remind me of the terms of that, because
21 I, for some reason, had a view that you were not opposed to the basic
22 elements of the application by Dr. Karadzic.
23 MR. TIEGER: Our position, Your Honour, was essentially this: As
24 a preliminary matter, we - and I should underscore that - rejected the
25 notion that the Prosecution was incapable of doing that for any reason,
Page 88
1 and that we were fully prepared to do so appropriately. However, we
2 didn't want to make the messenger more important than the message, so we
3 accepted, in theory, that the same fair approach could be made by
4 Registry, but emphasised that in order for that to happen, we considered
5 that it would be necessary to have input at the front end so that
6 Registry was aware of prior contacts with the witnesses, prior
7 sensitivities of witnesses, and so on, so there was a reduced risk of the
8 appearance of harassing witnesses who had been contacted in the recent
9 past, of not being aware of previous information provided by that
10 witness, et cetera, and that there needed to be contact at the other end
11 for essentially the same purpose, so that witness security, witness
12 comfort levels, the issue of witness fatigue, none of those things were
13 aggravated or implicated by multiple contacts with the witnesses by arms
14 of the Tribunal that weren't aware of what each were doing. But with
15 those caveats, we consider that we would not oppose, in principle,
16 contact by the Registry for the purpose of finding out from witnesses
17 whether they consented to the disclosure of their contact details so that
18 they may be interviewed.
19 JUDGE BONOMY: What's your position on simply giving the accused
20 the details of all the witnesses who are not protected witnesses in some
21 way?
22 MR. TIEGER: We oppose that, and perhaps that should have been
23 made more clear. I think it was made clear in our response to
24 Dr. Karadzic, a letter we sent back to Dr. Karadzic and which he appended
25 to his motion. That was explicit there.
Page 89
1 JUDGE BONOMY: Mr. Karadzic, this application that you submitted
2 was clearly carefully framed. A deliberate decision was made to try to
3 involve the Victim and Witnesses Section. Why did you follow that course
4 of action rather than simply ask for a list of names so that your own
5 representatives could contact the witnesses direct?
6 THE ACCUSED: [Interpretation] Your Lordship, you have -- you are
7 quite irresistible, because you seem to have drawn me into participating
8 actively here, rather than adhering to my position to actively
9 participate in public sessions. I think that under the Rules, and under
10 the rules of propriety, I should not be contacting witnesses before
11 informing the other side and gaining their consent. That's the reason
12 why I filed this application.
13 Even if, in the cases where I know that there are -- where
14 witnesses - which are OTP witnesses - live, I do not wish to take any
15 steps before I hear the OTP position. On the other hand, the OTP has now
16 included in their list several witnesses whom I wanted to be witnesses of
17 the Defence and whom I was in contact with earlier on. Of course, these
18 are not the ones that I include in this particular application. But for
19 all the other witnesses I wish to follow -- for the other OTP witnesses,
20 I wish to follow the procedure set out in the application.
21 JUDGE BONOMY: Thank you for clarifying that.
22 I should make it clear for the record that Mr. De Witt did enter
23 the room at the very beginning of the discussion on this subject and has
24 been listening to what has gone so far, and it's to him that I now direct
25 my attention.
Page 90
1 Mr. De Witt, the application made by Mr. Karadzic here struck the
2 Trial Chamber as a reasonable approach to a problematic situation for
3 someone located where he is at the present time. Subject of course to
4 the comment that I can immediately see difficulties about facilitating
5 and paying for transportation and making the appointments for the
6 interviews. But the earlier part of the application, contacting
7 witnesses, finding out whether they are willing to be interviewed, and
8 asking if they wanted somebody from the Prosecution to be presented, it
9 seemed a straightforward way of dealing with what could be a very
10 complicated situation, because Mr. Tieger in just a few sentences made it
11 sound particularly complicated because of the individual nature of every
12 witness and the restrictions that might apply to each witness or how the
13 Defence deal with each witness. So it was of some concern to the Chamber
14 then to hear from the Registry that really none of this can be done,
15 except simply to contact witnesses to see if they're willing to have
16 their details given to Mr. Karadzic, which is something that another
17 Trial Chamber has already recently decided isn't for the Prosecution to
18 decide at all; that the witnesses' details, if they are not protected
19 witnesses, ought to be freely available to the accused.
20 So you can see the difficulty for the Trial Chamber. What seems
21 a neatly-controlled way of doing it is not, according to Victim and
22 Witness, available, and a more haphazard way of doing it, one that
23 doesn't cater for the particular sensitivities of the witness, unless
24 Dr. Karadzic's team is particularly sensitive in their approach, that
25 more haphazard one seems to be available under the jurisprudence of the
Page 91
1 Tribunal. So we are trying to find a way of dealing with this situation
2 that is clear and acceptable to everyone. Can you help us at all, beyond
3 what's in the written submission?
4 MR. DE WITT: Yes, thank you, Your Honour. You have managed to
5 summarise the situation, and the written submission does contain what the
6 position of the Registry is on this matter.
7 I just would like to raise a point in which the VWS gets involved
8 in the first half about contacting the witnesses and finding out if they
9 are willing to testify, et cetera, experience has shown in the past that
10 the witness will not simply give a yes-or-no answer. The witness will
11 very likely have more questions about maybe the content of the testimony,
12 what is being required, what questions would the Defence want to ask the
13 witness. And it's situations like that where the VWS will find itself in
14 between, unable answer these questions because there's no representative
15 of the requesting party present during the call when it's being made.
16 And in the past, it was suggested, simply because of the way it
17 is - you have the Defence and the Prosecution sensitivities in these
18 matters - is that a person who is present from the Chamber is available
19 at the time the call is being made by the WVS to ascertain the witness'
20 willingness or not to testify for the other side, in the event that there
21 is substantive questions asked by the witness, that someone who is
22 instructed in the background and the nature of the evidence that's being
23 expected could give the witness an indication or an explanation. And so
24 besides what submissions have been made in the WVS or the Registry
25 submission, this is a practical matter or point which I would like to
Page 92
1 raise, and that is that VWS will not be in a position to give more
2 explanation and would invariably have to say, We will have to call you
3 back after receiving further instructions either from the Prosecution,
4 the Defence, or the Chamber.
5 [Presiding Judge and legal officer confer]
6 JUDGE BONOMY: Mr. Karadzic, have you any idea how many witnesses
7 we might be talking about here? I get the impression you're not
8 envisaging interviewing all of the witnesses, but do you have any idea of
9 what proportion?
10 THE ACCUSED: [Interpretation] Yes, Your Honour, I do have an idea
11 of what I have to do, and this is not just a question of whether they
12 agree or not to see me here or to members of my team somewhere else.
13 This is also a question of logistics, and this would be a matter for the
14 Registry. We would need to ask for -- or we would need to let them know
15 that we would like to get in touch with these witnesses and speak with
16 them, which I don't think would be the proper -- appropriate. But we are
17 talking about equality of arms here and equal access, as far as
18 witnesses. The Prosecution has said that they intend to call
19 230 witnesses pursuant to 92 bis or 92 ter. This is an enormous number
20 of witnesses, and perhaps if they were to testify viva voce, they would
21 be able to state a lot of relevant things. However, I would not ask to
22 speak with all 230 of them, but 80, perhaps. Yes, I think I even
23 mentioned that somewhere in my motion. I would need to speak with 80 of
24 those that are planned to be called by the Prosecution. But without the
25 assistance of the Registry in terms of logistics, not just in terms of
Page 93
1 mediation, but also in terms of logistics, we are absolutely helpless.
2 JUDGE BONOMY: Have you any comment to make on the suggestion
3 made by Mr. De Witt that to protect the integrity of the Victim and
4 Witnesses Section, there would have to be present someone from the
5 Trial Chamber who would then be able to explain, if asked by the witness,
6 the general nature of what being interviewed is; in other words, that
7 they are being asked about their own personal knowledge of events over a
8 particular period at a particular location? And when I refer to members
9 of the Trial Chamber, I'm talking about the legally-qualified staff I
10 have on either side of me here, and there are others working in the
11 Chamber too. So they -- the suggestion is that in case there are any
12 questions that the VWS do not feel comfortable answering, they would be
13 able to intervene to prevent any feeling of animosity towards VWS
14 representatives because they are seen in the wrong light, in the wrong
15 circumstances.
16 This might be a way forward, but what's your comment on it?
17 THE ACCUSED: [Interpretation] At this point, it does not seem to
18 be a bad idea to me. I am going to consult my associates, but it seems
19 to me that we don't have anything against there being a representative of
20 the Trial Chamber present rather than a representative of the Registry.
21 I'm just interested in the circumstances that the Prosecution deals with
22 these matters, because both the Prosecution and the Defence would need to
23 have a similar position and similar circumstances in these matters.
24 JUDGE BONOMY: Thank you.
25 Mr. Tieger --
Page 94
1 MR. TIEGER: Just to clarify, Your Honour -- I'm sorry to
2 interrupt. Just to clarify, I think Dr. Karadzic said a representative
3 of the Trial Chamber rather than a representative of the Registry. My
4 understanding of the proposal was "in addition to," so he's clear on
5 that.
6 JUDGE BONOMY: I'm not hearing you, sorry.
7 Yes, can we clarify that, Dr. Karadzic? Were you saying -- or
8 had you misunderstood? What Mr. De Witt was suggesting is that the
9 representative of Victims and Witnesses does make the call, but in the
10 presence of a representative of the Trial Chamber, who would intervene to
11 deal with any more problematic issues that are raised by the witness.
12 THE ACCUSED: [Interpretation] The secretariat has gotten me used
13 to the idea that they're always economizing, and that they don't have
14 money, so what I understood was that then we would have a representative
15 present of the Trial Chamber and not of the Registry, and not together.
16 But let me review that, and then we can decide. The question is, though,
17 what impression and what effect would be made on the witness by a
18 representative of the Trial Chamber, in view of the fact that this was
19 not viva voce testimony. But after I consult with my associates, I'm
20 going to let you know what my position on this matter is.
21 In any case, it is better to have an interview in whatever way
22 it's possible than not to have it at all.
23 JUDGE BONOMY: You can take it that a Trial Chamber staff would
24 have instruction from me that witnesses should be encouraged to cooperate
25 with Defence inquiries. But of course a witness does not have an
Page 95
1 obligation to cooperate, but it's a civic duty that you would expect
2 witnesses, if they can bring themselves to do it, to undertake. So it's
3 a delicate issue, conveying to a witness what are the rights and wrongs
4 of the situation.
5 And one reassurance is provided by your own motion, where you
6 invite -- or ask that the Registry be invited to ask the witness if that
7 witness wants someone from the Prosecution to be present, and that should
8 be a reassuring factor for any witness.
9 Now, Mr. Tieger, do you have any further comment to make on this,
10 and in particular on Mr. Dewitt's suggestion?
11 MR. TIEGER: No, I don't know if I have one that either advances
12 or derails the process. It occurs to me that, in any event, witnesses
13 may well pose questions that no one is in a particular position to
14 answer, and the presence of a Chamber's representative will not
15 necessarily resolve that issue, and witnesses will sometimes have to be
16 told, I presume, That's not something we're in a position to know.
17 The other issue that arises, that the Court alluded to, I think,
18 that I recall raising during the course of the status conference, is the
19 concern that the witnesses not feel pressured one way or another. I
20 mentioned that in our response to Dr. Karadzic. I did my best to assure
21 him that we would try to ensure -- that is, if we had been called upon to
22 make these inquiries, that we didn't guide a witness in one direction or
23 another. I think that's important, particularly in these circumstances,
24 and particularly for witnesses who may not understand the process or
25 their obligations, and may yield to unintended pressures that were not
Page 96
1 meant to be applied in any way, but that the witnesses feel,
2 nevertheless.
3 So the Court characterized it as a delicate process; I agree
4 that's the case. I just wanted to mention that's one of the
5 considerations that I think are important to bear in mind as we move into
6 this.
7 Having said those things, from the outset I indicated that I
8 thought the quality of the message, and I just mention one aspect of that
9 quality, was more important than the particular messenger, so I wouldn't
10 have anything further to add. I'd like to consider -- I haven't
11 considered previously the role of a Chamber's representative. We'll
12 consider whether that has some implications that we haven't thought about
13 at the moment. But other than that, I have nothing additional.
14 JUDGE BONOMY: You sound as though -- you sound as though you may
15 not agree with the approach that says witnesses should be encouraged to
16 cooperate with the Defence.
17 MR. TIEGER: I understand the -- well, first of all, I think the
18 nature of the duty, or civic duty, or generalised obligation to
19 participate in this way varies from national jurisdiction to national
20 jurisdiction, and I have been advised of some in which this kind of
21 approach would be somewhat unthinkable. I realise we're operating in
22 this system, and my only concern is that the distinction between
23 generally identifying the utility of cooperation with the system
24 generally and prodding a witness into one particular course or another
25 can be a thin one, and I think when we start talking about encouraging
Page 97
1 witnesses, we have to be wary about crossing that line. And I am
2 concerned about witnesses feeling pressure that no one thinks is
3 appropriate to apply.
4 JUDGE BONOMY: Thank you.
5 Now, if you have any further submissions to make on this, then
6 I'd be grateful if you made them fairly quickly, because this is an
7 urgent matter that we need to issue a decision on fairly soon.
8 [Presiding Judge and legal officer confer]
9 JUDGE BONOMY: I think that completes our discussion of that
10 issue, Mr. De Witt. Thank you very much for assisting.
11 [Presiding Judge and legal officer confer]
12 JUDGE BONOMY: I'm looking now at the motion at the instance of
13 the accused concerning protective Prosecution witnesses, and that was
14 seeking a way of checking whether these witnesses still wanted protective
15 measures.
16 Now, is that a matter for you, Ms. Uertz-Retzlaff? Or,
17 Mr. Tieger?
18 MR. TIEGER: I'll deal with that, Your Honour.
19 JUDGE BONOMY: Can we be clear about the number of witnesses
20 affected by protective measures in this case? In the motion, the
21 reference is to 68 for whom protective measures existed in other cases.
22 Is it only 68?
23 MR. TIEGER: This was -- I think our response dealt with the
24 accused's motion concerning a particular --
25 JUDGE BONOMY: That's his statement, yes. My question is: Is it
Page 98
1 accurate?
2 MR. TIEGER: I think --
3 JUDGE BONOMY: I think you say 75 are in the wrong Chamber.
4 MR. TIEGER: Yeah. I think those 68 dealt with are with one of
5 our latter notifications. So just simply by extension, the previous ones
6 dealt with other protected witnesses, and this motion focused on the
7 fourth notification only.
8 JUDGE BONOMY: Can you say offhand, just in rough terms, what
9 proportion of the witnesses are the subject of protective measures in
10 this case?
11 MR. TIEGER: I can offer the Court a consensus view in just a
12 moment.
13 [Prosecution counsel confer]
14 MR. TIEGER: Between a quarter and a third, I think is the best
15 estimate, Your Honour.
16 JUDGE BONOMY: If I can help you, we think it's about 200.
17 MR. TIEGER: I'm not going to dispute that figure. Then that
18 obviously raises the percentage.
19 JUDGE BONOMY: Speaking for myself, but I think I may have some
20 support from the rest of the Trial Chamber, that doesn't bode well for a
21 trial to be conducted as publicly as possible. It raises the question in
22 the mind, Are all of these measures still necessary? It may be that
23 individually they didn't have quite that impact on other cases, but when
24 they are brought together in this case en masse, then they would have a
25 significant effect, a significant impact.
Page 99
1 So it's understandable that the accused should make this motion.
2 However, I see the problem, and I understood at the status conference,
3 from what Ms. Uertz-Retzlaff said, that as witnesses were re-contacted in
4 connection with this case, a check was made with them whether they still
5 sought the protective measures, and that so far those checks had simply
6 resulted in confirmation. But there's nothing of that in your response,
7 so the response is in much more general terms, and it's based more on the
8 law than on the detail of the measures in this case.
9 I think there is an issue here, Mr. Tieger, that has to be
10 addressed somewhere. The Rules are clear. I'm not suggesting you've got
11 the Rules wrong in any way, but if you're an accused person, at the end
12 of the line, as it were, and some distance in time removed from the
13 events, then to pose the question that's been posed does not seem
14 unreasonable. I don't know if it is helpful just to say, Right, well,
15 the Rules are the Rules, and that's all we need to do here. I certainly,
16 with a trial prospect, would be concerned that it might give a rather
17 poor impression of the ability of the Tribunal to conduct its proceedings
18 in public. So reviewing the situation now doesn't seem an unreasonable
19 request.
20 I know there's a lot of work involved, but I'm not even certain
21 that reviewing the situation requires speaking to every witness. And I
22 don't necessarily take Mr. Karadzic's point. There might be some that
23 are so fairly obvious that you can take an easy position on them. On the
24 other hand, it may be that time having moved on, the situation in the
25 more marginal cases may have changed.
Page 100
1 So there is a status conference in a couple of weeks, or just
2 over. I think I would like you to give some thought, between now and
3 then, to whether we can't find a way of satisfying the Chamber, at least,
4 that these measures are still appropriate at this stage without
5 necessarily spending much-needed resources on checking something which
6 doesn't go to the root of the matter just at the moment. It's not
7 something that needs to be resolved straight away, but I think we need to
8 be thinking about how it might be resolved, because it will undoubtedly
9 continue to fester as a sore in this case unless we can be seen to have
10 addressed it.
11 Now, Mr. Karadzic, is there anything else you want to say about
12 this issue of the protective measures that continue in force from
13 previous cases?
14 THE ACCUSED: [Interpretation] My categorical position is that the
15 protection should be enjoyed only by victims. We have moved away from
16 the war. It's been 13 years now, circumstances have changed, and there
17 is no need for the whole trial to be conducted under a veil. These
18 circumstances could lead to a prejudice to the trial, and I don't think
19 that any protection is warranted, save for the case where victims are
20 involved.
21 JUDGE BONOMY: Thank you.
22 Mr. Tieger, anything you want to say as a final comment at this
23 stage?
24 MR. TIEGER: No, Your Honour, I'm -- no, I will refrain, that's
25 fine, thanks.
Page 101
1 JUDGE BONOMY: Thank you.
2 [Presiding Judge and legal officers confer]
3 JUDGE BONOMY: The final thing I wanted to deal with was an
4 application which has been made for protective measures for four
5 witnesses which you say are made pursuant to Rule 70, and that's for 182,
6 185, 304, and 450. Now, the Rule 70 conditions which you seek to have
7 confirmed in this order are non-disclosure of identity, non-publication
8 of the statements, and use of the statements solely for preparation of
9 the Defence.
10 Now, has the government in question asked you to obtain a Rule 70
11 order? I understand governments asking it of accused people, but I
12 assume that they would accept your word for it that you had disclosed
13 material and made it clear to an accused that it was subject to Rule 70.
14 Do you still require an order in a situation like this?
15 MR. TIEGER: I didn't deal with this specific application. I
16 will say, as a general matter, that --
17 JUDGE BONOMY: We've made -- we did make an order before which
18 related to similar terms, but it was in the context of making it clear
19 that there are certain things which relate to the actual conduct of the
20 trial, that we would expect a separate application to be made for at the
21 time of the trial and before the trial. But here you're talking about
22 simply disclosing statements, but not disclosing the identity of the
23 witnesses. Now, is that not something you can actually do, without the
24 authority of the Chamber, and is it not the case you only need our
25 authority when it comes to trying to present this material in court
Page 102
1 subject to Rule 70 conditions?
2 MR. TIEGER: Vis-a-vis the trial --
3 JUDGE BONOMY: I have -- here the motion so that ...
4 MR. TIEGER: Your Honour, if I understand the Court's question
5 correctly --
6 JUDGE BONOMY: Why do you need the Court to make this order?
7 MR. TIEGER: Your question is why we can't just offer the same
8 assurances because we have the power to do so, why does the government
9 require this as an order by the Court?
10 JUDGE BONOMY: Or do they? Are the government asking for this,
11 or is it just your decision to apply for it?
12 MR. TIEGER: I didn't directly deal with the -- my understanding
13 is that, in fact, it was a request. Otherwise, we would have handled it
14 in precisely the way the Court has suggested.
15 JUDGE BONOMY: So we can assume, when you make an application of
16 this nature which relates exclusively to disclosure, that that's because
17 you've been asked by the state provider to do so?
18 MR. TIEGER: Yes, and you can certainly assume that in the
19 future, because we would obviously bear in mind what the Court has said
20 and relate it to the relevant government.
21 JUDGE BONOMY: My concern is when you try to take from the Court
22 any control over the actual process in the trial, and that's when you
23 undoubtedly need to apply. And if it's not a Rule 75 protective measure,
24 it has to be justified in some other way, such as a national security
25 interest or something of that nature, but it can't just be willy-nilly
Page 103
1 applied in court without the permission of -- without the authority of
2 the Trial Chamber.
3 MR. TIEGER: Yes, exactly. This is a reflection of a different
4 aspect of the provider's concerns.
5 JUDGE BONOMY: All right. Thank you.
6 Now, these are the issues I wanted to raise.
7 [Presiding Judge and legal officers confer]
8 JUDGE BONOMY: Sorry, there is one more. Do we have time to deal
9 with one more matter, Mr. Karadzic?
10 THE ACCUSED: [Interpretation] I am not going anywhere. I don't
11 have anything scheduled for this evening.
12 JUDGE BONOMY: I thought that you did have something at 5.00, and
13 that's why we've been rushing through this a bit more quickly than we
14 would have done. You had more places to go than we had.
15 THE ACCUSED: [Interpretation] Yes, to the doctor's, but that's
16 not what I would call any sort of entertainment.
17 JUDGE BONOMY: There is one thing I had overlooked.
18 (redacted)
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7 before we conclude?
8 MR. TIEGER: No, thank you, Your Honour.
9 JUDGE BONOMY: This has actually been a very useful exercise. It
10 may not, at first sight, appear so to you, but it's been of great
11 assistance to me and will enable us now to device a scheme for dealing
12 with these various lengthy, voluminous motions that have to be disposed
13 of, and dealing with some of the other trickier issues which have been
14 raised in the course of the discussion.
15 As I've said on two occasion now, we will give both parties every
16 opportunity in public session to address these matters at the status
17 conference, and we will also, so far as is appropriate, make public the
18 transcript of this meeting. I can't remember how exactly we addressed
19 that issue the last time, whether there was an opportunity for comment.
20 I think there was, but more or less immediate comment would be welcomed
21 so that we could take an early decision on whether to restrict any
22 element of the transcript from publication.
23 So thank you very much for your cooperation, Mr. Karadzic, in
24 assisting the progress of the case, and the Prosecution for dealing with
25 the various matters that we've invited you to address today.
Page 109
1 We will meet again at the status conference on the 1st of July.
2 --- Whereupon the conference adjourned at 4.45 p.m.
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