Tribunal Criminal Tribunal for the Former Yugoslavia

Page 6441

1 Monday, 13th September, 1999

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.41 a.m.

6 THE REGISTRAR: [Interpretation] Case number

7 IT-95-14/2-T, the Prosecutor versus Dario Kordic and

8 Mario Cerkez.

9 JUDGE MAY: Mr. Nice, if I could address you,

10 please.

11 Before we continue with the evidence, there

12 is an outstanding application for provisional release,

13 which we will deal with now, on behalf of Mr. Cerkez.

14 The application can be dealt with briefly,

15 but let me first mention something about tomorrow. I

16 hope the message has reached all parties that we shall

17 not be sitting tomorrow morning. That is because one

18 of our number has to attend at a hospital appointment.

19 We will resume at half past two tomorrow. We would

20 normally sit until 5.30, but I think I may have a

21 meeting at 5.00, but I'll have to confirm that.

22 Turning to the application, is there anything

23 you want to add to your written submissions, which

24 we've seen? I can perhaps add this before you do. We

25 have obviously considered this matter while we've been

Page 6442

1 away, and we're of the view that potentially there may

2 be exceptional humanitarian circumstances in this

3 case. I say "potentially" because, of course, we

4 haven't heard all the argument. So if there's anything

5 you would like to add.

6 I should say that we have a representative of

7 the Government of Croatia here. We do not have a

8 representative of the Kingdom of the Netherlands,

9 although they have been informed and, as I understand

10 it, have said that they would be prepared to ensure the

11 transportation of the accused to and from the airport.

12 No doubt that can be confirmed by the Registry at some

13 stage.

14 MR. NICE: We, of course, hadn't seen

15 anything from The Netherlands. We also hadn't seen any

16 documents supporting the medical condition of the

17 defendant's father. Mr. Kovacic tells me this morning

18 that that was forwarded to the Registry, but for

19 whatever reason, we've never seen it. So we remain

20 unable to comment on that.

21 Other than that, on the merits, the matter

22 has, I think, been fully set out in our response,

23 drafted by Mr. Scott who's not here this morning to

24 supplement it himself, but there's nothing I wish to

25 add in any event, save to say this: The witnesses

Page 6443

1 being called this week all concern Cerkez. I

2 understand from Mr. Kovacic that were there to be any

3 question of his client not being present at court this

4 week, he, Mr. Kovacic, would not be in a position to go

5 ahead, that he wouldn't, I think, have instructions to

6 proceed in his client's absence; accordingly, a

7 consequence, for example, of allowing Mr. Cerkez to

8 leave the Tribunal this week might be that the time

9 would be, not wasted, but we would have to find time

10 elsewhere.

11 JUDGE MAY: That, of course, is an aspect of

12 the case which we have in mind. If there were to be

13 any such grant of provisional release of a temporary

14 nature, it would be at the weekend or at a time which

15 would mean the minimum loss of court time. We would

16 expect the Defence to cooperate in the matter by

17 allowing or not opposing the trial going on. The

18 accused would have the opportunity, of course, of

19 hearing from counsel what the witness had said, but, no

20 doubt, that's a matter we can explore.

21 MR. NICE: That sets the thing out fully in

22 our submission.

23 JUDGE MAY: You should see the certificate

24 from the Split hospital. Have you not seen that?

25 MR. NICE: No.

Page 6444

1 JUDGE MAY: Has somebody got a copy of the

2 certificate, please?

3 I'm going to show you my copy. There seems

4 to be no other available. Just cast an eye on it.

5 It's the English copy.

6 MR. NICE: I understand from

7 Mr. Lopez-Terres, who approached the Registry directly,

8 that their policy is not to release medical documents

9 to the Prosecution, and that's the reason we didn't see

10 it.

11 I'm not in a position really at this short

12 notice to comment on that, beyond having the most

13 limited understanding of what is involved, but thank

14 you very much for showing it to me.

15 It's a matter for the Tribunal whether, on

16 that material, they are satisfied that the risk to the

17 father is serious and immediate. If it is, we've set

18 out in our motion the procedural steps that have to be

19 taken, and if the Court is satisfied that all the

20 Rule-required steps are taken, then it's a matter for

21 the judgement of the Tribunal. But it's not one of our

22 duties to oppose, for opposition's sake, once we've

23 drawn your attention to the factors.

24 JUDGE MAY: Yes. You've carried out anything

25 that you should carry out.

Page 6445

1 As far as conditions are concerned, is there

2 anything that you would like to say about that?

3 MR. NICE: Well, I note the document from the

4 State of Croatia. Once in the State of Croatia,

5 matters are, of course, out of the Tribunal's hands,

6 save on the promise of that state.

7 What I did note was that there wasn't going

8 to be 24-hour supervision, but there was a general

9 condition that he would not be allowed to leave a

10 localised area and would only be allowed to talk to

11 certain people; namely, family and friends, as I recall

12 it.

13 How that is to be policed and monitored is

14 not further specified, so that I recall an offer to

15 have his report or reporting to a police station once a

16 day or at such intervals as the Tribunal might demand.

17 In the absence of any knowledge of how the

18 forces in Croatia operate, we can't propose any tighter

19 regime for his supervision and know of no way in which

20 the State of Croatia will be able to sanction

21 themselves his failure to honour the condition to stay

22 within a particular locality and to speak only to a

23 narrow range of people.

24 One of the problems, of course, inevitably,

25 is that the defendant leaving the Tribunal is equipped

Page 6446

1 with information of the case and the witnesses and so

2 on of the type not necessarily available to others, and

3 there's again no way we can police his dissemination of

4 that knowledge and information.

5 Again without seeking to be obstructive or to

6 oppose simply for opposition's sake, if the Tribunal

7 acts on the basis of Croatia's offers to police and

8 control the situation, it must recognise that it is

9 reposing trust in that state, it will have in mind the

10 collateral problems we've had with the state, and I can

11 imagine that the only way the Court can tighten up the

12 control that Croatia might have would be to require

13 further reporting at police stations.

14 Having said that, there comes a time when

15 frequency of reporting becomes really unfair and

16 unreasonable. You can't ask someone to report every

17 hour. We know that there are certain places where they

18 even have tagging systems, and I don't know whether

19 that exists there, and again the Court might or might

20 not regard that as appropriate or excessive.

21 Even if you have someone ringing in every

22 hour, or whatever might be regarded as appropriate,

23 that doesn't actually amount to 24-hour supervision of

24 communications in a way that there can be supervision

25 of communications with somebody in a detention

Page 6447

1 facility; although, of course, having said that, in

2 this detention facility, there is probably some freedom

3 of communication that isn't policed or controlled.

4 But all this is simply to emphasise that even

5 the supervision at its highest level offered by

6 Croatia, reposes in -- or would repose in both the

7 State and in Mr. Cerkez a high level of trust, and the

8 Chamber must have that in mind.

9 I suppose there's one other thing that hadn't

10 been included in the original response, and I don't

11 wish to dwell on this, but there was a passage in the

12 application which referred to the state of evidence and

13 so on about Mr. Cerkez, and the Tribunal won't have

14 overlooked the direct evidence of a killing that has

15 been given and has not been excluded as irrelevant in

16 this case. So this is by no means a case where the

17 evidence is other than very substantial and extremely

18 serious.

19 Those are all matters of detail, and I'm sure

20 you've probably had them all in mind in any event.

21 JUDGE MAY: As far as the state of the case

22 is concerned, I have not seen a list of witnesses for

23 this week.

24 MR. NICE: The list was sent out, I think, on

25 the 5th of August, and subject to two excisions --

Page 6448

1 well, to the Registry, it was, I think -- and I'll be

2 corrected if I'm wrong -- the 5th of August. The list

3 was sent out of witnesses by the week. Two witnesses

4 have been withdrawn; one won't come, and I can't

5 remember the reason for the other one's being

6 unavailable, and there's been one substitution. But

7 the list was certainly provided.

8 JUDGE MAY: I've got a list of witnesses to

9 be called, which I have noted as being dated the 5th of

10 August, but there's no mention of weeks.

11 MR. NICE: I think it says the "11th to the

12 17th of September, 1999" at the top of the first seven

13 names.

14 JUDGE MAY: Perhaps we can be supplied with

15 copies of those.

16 MR. NICE: I've got to keep the Chamber

17 informed of the position on witnesses, in light of

18 recent developments, because there have been one or two

19 problems, but we certainly have evidence available for

20 this week, all of it, as I understand from Mr. Kovacic,

21 concerning Cerkez.

22 JUDGE MAY: Thank you.

23 Mr. Kovacic, you've heard what's been said.

24 We have not decided this matter by any manner or means,

25 but we want to have all the matters in mind.

Page 6449

1 We have received the draft of a document --

2 rather, the original document in which Mr. Cerkez has

3 signed various conditions. If we were going to make

4 any grant of conditional release, he would have to sign

5 a document which would include those conditions, those

6 undertakings which we think are necessary; for

7 instance, not to discuss matters with witnesses, not to

8 have any dealings with witnesses, and not to discuss

9 the case with anybody. Presumably, he would be

10 prepared to sign such an undertaking.

11 MR. KOVACIC: [Interpretation] Mr. President,

12 thank you for giving me the opportunity to comment. Of

13 course he would sign such an undertaking in whatever

14 form it may be. I should like to recall that

15 previously, when we asked for his provisional release,

16 we had suggested certain measures which the Tribunal

17 might apply. Of course, this was simply an attempt to

18 set out some examples, and in that case too, we

19 explicitly said that the defendant would accept any

20 other conditions or measures which the Tribunal might

21 consider appropriate.

22 In connection with this, I should like to

23 comment on what my learned friend, Mr. Nice, has said,

24 and to do so in practical terms, if I may.

25 JUDGE MAY: Let me deal with this, if I may,

Page 6450

1 by asking you to deal with the matters with which the

2 Chamber is concerned. First of all, there must be no

3 slippage of time in the trial. If there were to be

4 provisional release, it would be over next weekend.

5 Now, how long are you asking for in terms of this

6 visit?

7 MR. KOVACIC: [Interpretation] Mr. President,

8 my idea was that he should spend in Split, at home and

9 in the hospital visiting his father, at least two

10 days. But in practical terms, in view of travelling

11 time, this would mean an absence of four days: One day

12 to travel there and another day to travel back, and two

13 days' stay.

14 [Trial Chamber confers]

15 JUDGE MAY: The difficulties are these:

16 First of all, four days means inevitably that we may

17 lose time for evidence. Now, is there any reason why

18 we cannot hear evidence in his absence, for instance,

19 evidence in chief, if you were given the opportunity to

20 cross-examine after he had returned?

21 MR. KOVACIC: [Interpretation] Mr. President,

22 there is no problem. We will be ready for those

23 witnesses before Cerkez leaves for the

24 cross-examination, and the Defence accepts that he may

25 be absent in the courtroom for those three days, and

Page 6451

1 that is why I was saying if, theoretically, we are

2 talking about a weekend, then he would be losing at a

3 maximum one and a half days of court time, and we agree

4 that that court time of one and a half or two days may

5 be used to meet in his absence. Of course, we would

6 ask the registry to provide the defendant with a video

7 of the proceedings in court, but this is not a

8 condition. We would be able to recount what had

9 happened and explain to him when he returned.

10 JUDGE MAY: We've obtained a copy of the

11 flights from here to Zagreb. There are apparently

12 flights every day, so it would theoretically be

13 possible for him to fly out one day, have one or two

14 days in Split, and then return. If we were to order

15 that he went on Friday and returned on, say, Sunday or

16 Monday, is there anything you want to say about that?

17 MR. KOVACIC: [Interpretation] No, I have no

18 comment. That is quite feasible, especially the latter

19 possibility; that is, his returning on Monday.

20 JUDGE MAY: Of course, the Chamber is

21 concerned that he does not breach any of the conditions

22 and that he returns. How can we be satisfied of those

23 matters, Mr. Kovacic?

24 MR. KOVACIC: [Interpretation] I quite agree

25 with that, and the accused personally quite agrees with

Page 6452

1 that. All we can do is give our own word, which I

2 think is, after all, the most important, that he will

3 certainly make no breach.

4 Let me also recall the fact that the

5 defendant surrendered voluntarily to the Tribunal

6 before the beginning of the proceedings. Even though

7 the Prosecution has a different opinion, which is not

8 founded on fact, it is a fact that the accused

9 surrendered of his own free will without any pressures

10 of third parties. That was his own personal decision.

11 The trial has started; he wants to see the

12 end of that trial. He believes that he is innocent,

13 and he believes that we are able to prove it, and he

14 does not wish to remain persecuted, suspected of a

15 criminal offence, for the rest of his life, so he wants

16 to be tried.

17 In the course of the preparations for the

18 trial, as you are aware, we always adopted a

19 constructive approach, and our main proposals were to

20 speed up the beginning of trial, so I think it would be

21 quite illogical to expect an about-turn at this stage.

22 There is not a single fact that would point in that

23 direction, coupled with our personal assurances that he

24 has the most sincere intention of carrying out what he

25 needs to do and of returning to the Tribunal as soon as

Page 6453

1 possible.

2 JUDGE MAY: Is there anything else you want

3 to add?

4 MR. KOVACIC: [Interpretation] Perhaps two

5 more sentences only, Your Honours. We do not wish to

6 waste your time, but please, try and bear in mind a

7 very practical aspect of this matter regarding the

8 possibility of influencing witnesses or disturbing

9 witnesses in any sense. If this were to be done in the

10 way that you suggested as a possibility, it would

11 consist of a brief visit in Split, of maybe 48 hours or

12 a little longer, to Split and back from Split. In

13 Split, Cerkez lives four or five minutes' walking

14 distance from the hospital where his father has been

15 admitted. He has no wish or desire to move anywhere

16 else except along that route from the house to the

17 hospital and back.

18 A second point in this connection is that you

19 should bear in mind that Split is in a different state

20 than Vitez; it is five hours' drive from Vitez. And

21 according to all information we have, there are no

22 witnesses or victims in Split. There may be someone by

23 chance, because the Bosniaks who feel threatened or

24 jeopardised certainly didn't go to Split, and therefore

25 there is no theoretical chance of him meeting someone

Page 6454

1 on the street.

2 Perhaps, if it would be helpful, we could ask

3 the Tribunal not to publicise the visit; to make it

4 public upon his return. I understand the Prosecution

5 is afraid that a witness may get the wrong message when

6 he reads in the papers that Cerkez has come to Split to

7 visit his father. The witness may come to the

8 conclusion that he has been released. So if this would

9 be helpful, as we haven't told anyone yet that that is

10 what we have applied for -- only Cerkez's father was

11 told yesterday in hospital that there was a possibility

12 of his son coming to visit him, but he has no intention

13 of talking about that. Anyway, his condition is such

14 that he cannot talk about it. So I think this can be

15 withheld from the public, and perhaps that would

16 minimise the fears of the Prosecution, because, as I

17 said, there are no witnesses or victims in Split.

18 Thank you.

19 [Trial Chamber confers]

20 JUDGE MAY: Thank you, Mr. Kovacic.

21 MR. NICE: Your Honour, I'm sorry to stand

22 again, but there are just two things, I think, or three

23 things that I perhaps ought to have raised with you, I

24 hope helpfully.

25 As to publicity, of course, this is open

Page 6455

1 session. Any order can be given privately. As further

2 protection, the Court might make an order now, in

3 respect of those listening to these proceedings, that

4 they shouldn't publicise any part of the application

5 that has been made. I haven't looked up your power to

6 do that, but I'm sure that must lie within your power.

7 More significantly, on the question of

8 disruption of the trial, we've had several witnesses

9 who have been heard in chief and then

10 cross-examinations been postponed. Obviously that's

11 always difficult, but I do know, and I'm going to

12 explain to you that the witness coming at the end of

13 this week is one who is going to be very difficult

14 indeed to get back for cross-examination if his

15 evidence isn't concluded this week. I can explain that

16 more fully later.

17 On the same point, at the end of paragraph 10

18 of our motion, this point is made, that there are no

19 provisions to permit judicial proceedings to continue

20 in the absence of the accused. That, of course, would

21 have -- if that's right, that would have terrible

22 consequences, if, for whatever reason, a defendant

23 leaving -- not really on provisional release, but on

24 these grounds -- were not to return.

25 That problem might be overcome if the Chamber

Page 6456

1 were to obtain, both for the short-term purposes of

2 witnesses on Friday and Monday and generally against

3 all eventualities, a personal undertaking from the

4 defendant in court to you, the Chamber -- and, indeed,

5 it might be helpful to have that in any event -- but a

6 personal undertaking that he consents to the trial

7 continuing in his absence until further notice, only to

8 be given by him in person.

9 That would mean that if, for whatever reason,

10 he was unable to return, the trial could be taken

11 forward. That might be both consistent with his stated

12 position and it might meet the concerns of the Chamber

13 about loss of time, and it might also deal, at least

14 possibly, with our concern in the last line of

15 paragraph 10.

16 Finally, I'm reminded that apparently the

17 security services here in the ICTY are at least

18 theoretically in a position to go to Croatia and be in

19 Croatia during any period in which Cerkez could be

20 there. If the Chamber felt, whatever the reluctance of

21 the security services here to do that might be, if the

22 Chamber felt that could help, then at least they could

23 seek assistance of those personnel. For my part, I

24 can't immediately see what help they could give, but

25 then I'm not in the security business, and they would

Page 6457

1 be better able to advise you than me.

2 JUDGE MAY: Thank you.

3 Could I ask the government of Croatia,

4 please, the representative, to assist us.

5 There is a microphone. It might be easier if

6 you came forward and went to the witness -- just the

7 witness stand.

8 First of all, thank you for coming,

9 Mr. Miljenic. Could you give us your full name, as it

10 were, and your position.

11 MR. MILJENIC: Yes, good morning, Your

12 Honours. I'm Orsat Miljenic, counsellor at the

13 Croatian Embassy here in The Netherlands.

14 JUDGE MAY: You have provided a statement

15 which we have, a statement of the Embassy of the

16 Republic of Croatia, in which at paragraph 4 you set

17 out your undertaking on behalf of the government to

18 take over Mr. Cerkez at the airport, to ensure he

19 remains within the municipality of Split, to surrender

20 his passport, to ensure he has no contact with any

21 witnesses or people other than his relatives and close

22 friends, and to ensure that he reports once a day to

23 the police. Having heard what's been said here,

24 Mr. Miljenic, is there anything you want to add to

25 that?

Page 6458

1 MR. MILJENIC: Yes. First of all, with your

2 permission, I would like to continue in Croatian.

3 JUDGE MAY: Yes, by all means.

4 MR. MILJENIC: [Interpretation] When we

5 drafted this proposal, we also submitted a list which,

6 as you can see, was left open-ended. If you look at

7 point 5, the Republic of Croatia is prepared to

8 guarantee other matters as soon as necessary. This was

9 just an indication, and we just wanted to provide a

10 framework within which we are prepared to operate.

11 There are additional police measures which can

12 vouchsafe some of these things, so if the Chamber

13 considers that additional measures are necessary, and

14 after our consultations with our own police services

15 and agencies, we can give you further clarifications on

16 that.

17 JUDGE BENNOUNA: [Interpretation] Yes,

18 Mr. Miljenic, you mentioned the fact that your proposal

19 could be studied and expanded. Would the Croatian

20 government make sure that there would be surveillance

21 not only to and from the airport, but throughout the

22 sojourn of the accused? Could he be under police

23 surveillance to make sure that the conditions of his stay

24 are fully respected; that is, that he should have no

25 contact with any other persons except the father of the

Page 6459

1 accused?

2 ORSAT MILJENIC: [Interpretation] In

3 principle, I believe that there are no difficulties

4 there; but with your permission, being part of the

5 diplomatic corps, I have to also consult, and I believe

6 that some of these consultations can be dealt with on

7 an urgent basis, since the whole matter is urgent, or

8 later on, if the Trial Chamber believes that the

9 additional conditions are necessary, and then we can

10 give you an answer as soon as possible.

11 JUDGE BENNOUNA: [Interpretation] I think it

12 should be done immediately; that is, these

13 consultations, to make sure that the surveillance should

14 be permanent as soon as the accused is taken over at

15 the airport until his return, that he should be

16 monitored by the police until he returns to The Hague,

17 and I think by doing so immediately and by providing an

18 answer to the Tribunal as quickly as possible, that

19 would facilitate the ruling of our Chamber.

20 MR. MILJENIC: I believe that this could be

21 dealt with within a matter of five minutes or ten

22 minutes.

23 JUDGE MAY: Mr. Miljenic, perhaps you would

24 deal with that and let us know your answer. If that

25 could be sent via the legal officer to us, as the Judge

Page 6460

1 says, that would assist us. Thank you for coming.

2 MR. MILJENIC: [Interpretation] Thank you very

3 much.

4 [Trial Chamber deliberates]

5 JUDGE MAY: We will consider this application

6 and we will submit our decision in due course. The

7 discussion was one which, had an application been made,

8 may well have been heard in a closed session;

9 accordingly, we instruct those in the public gallery

10 who are listening to this not to publicise any details

11 about this application or anything that was said and to

12 regard the matter as if it were in a closed session.

13 Are there any other matters before we go on

14 to the evidence?

15 MR. NICE: Your Honour, yes, I think perhaps

16 just one or two.

17 Indeed, on the topic of evidence, Ms. Verhaag

18 corrects me, having researched her records, the list

19 that you were provided on the 5th of August of

20 witnesses didn't have an identification of which ones

21 were being called in the particular week. That was

22 added. As you know, it's my need to get through

23 roughly two witnesses a day if we are to be anywhere

24 near finishing our case before Christmas, and so that

25 leads to an assumption that in any week of five and a

Page 6461

1 half days, there will be nine witnesses.

2 We've actually been told by the Defence since

3 then that they need so much time for cross-examination

4 of the witnesses they want that we've reduced the

5 number. I'll come to the detail of that a little

6 later, but that's the position on the witness list, and

7 I'll come to the detail of the witnesses in just a

8 second or so.

9 My position, just to explain my absences from

10 the court this week and possibly next, is that I'm also

11 running another case in front of Judge Jorda and that

12 Chamber. The Prosecution case ends either at the end

13 of this week or at the beginning of next week, and I

14 have one co-counsel there, so I'm obliged to spend

15 quite a lot of time there. But I'm fortunate in having

16 three co-counsel here, so you'll be seeing more of them

17 and less of me this week, and I hope that's

18 acceptable.

19 I simply notify everyone that the Prosecution

20 expert Ribicic, of whom we've given the name before,

21 should be available in report form by the end of this

22 month or the beginning of October.

23 There are, I think, outstanding, for early

24 disposal, issues about how transcript evidence may be

25 acceptable to the Chamber and what transcript evidence

Page 6462

1 may be accepted and admitted.

2 Can I mention publicly one name that is a

3 name that might be a useful witness to think about as

4 an example? That's the witness Ashdown because he was

5 a public witness when he gave evidence before.

6 There's another, I think in modern

7 terminology, high-profile witness who gave evidence, I

8 think, in closed session on the last time, and I can

9 give his name or identity to the Defence in due course,

10 and the Chamber will know about him.

11 So here are two witnesses, broadly of a

12 similar station and status maybe, and subject to any

13 objections by the Defence, then it will be helpful for

14 us to know how, in general, if the Chamber is going to

15 accept their transcript evidence, it would like to

16 proceed. There was some uncertainty on the last

17 occasion as to whether the evidence had to be read in

18 court or could be read in by being identified.

19 There is the argument on dead and unwilling

20 witnesses, which reached an inconclusive stage on the

21 last occasion. It might be thought useful to have it

22 as something to deal with if, for any reason, we run

23 short of witnesses. If we have that in mind, and if

24 there are oral representations that the Chamber's going

25 to require or any further arguments to be addressed, we

Page 6463

1 can perhaps timetable that in.

2 On the last occasion, the Chamber asked me

3 effectively to review our attitude on providing

4 libraries of documents to the defendants. The Court

5 will remember that there was the reference to Ministry

6 of Defence documents coming from the Cheshire Regiment

7 and so on, and there were other documents which we

8 might have in library form.

9 I think I explained then, but I certainly can

10 explain now that we don't have a library of military

11 documents from the English regiments. Simply, such

12 libraries didn't exist and they don't exist. The

13 documents are attached item by item to particular

14 witness statements, and we have no greater access

15 probably to the material almost than the Defence does,

16 who have applied, through the Ministry of Defence in

17 London, for a range of documents. So that matter, I

18 think, will have to be put, again in the vernacular of

19 the age, on hold.

20 As to ECMM documents, where libraries may

21 exist, I know that there is by them an in-principle

22 opposition to the provision of the library of

23 documents, and so if issue; that is, the provision of

24 documents of that category in bulk, is to be taken

25 forward and if we are to proceed other than by

Page 6464

1 producing particular ECMM documents on a case-by-case

2 basis, I forecast that it may be necessary to schedule

3 a hearing -- am I going too fast? Sorry.

4 It may be necessary to schedule a hearing

5 where ECMM can themselves be represented to make the

6 points and arguments they wish to make on that topic.

7 I mention those issues, both to inform my

8 friends and also to make sure that you don't think

9 we've overlooked what was a hint to us to review the

10 position on providing libraries of documents, which is

11 well in our mind.

12 Finally, and just as a matter of notice at

13 this stage, but so that it shan't be thought to have

14 come as a last-minute thought at a later stage in the

15 case, there's been an Appeals Chamber decision on the

16 four additional witnesses we sought to have added in

17 respect of Zepce, although the decision has been that

18 we cannot have a hearing before the Appeals Chamber.

19 As the Chamber knows, we are in the process

20 of preparing for the village attacks following the

21 dossier decision, and that preparation is fairly

22 well-advanced, I'm happy to say, but the overall change

23 in circumstances about the presentation of evidence in

24 respect of the village victims means that I may, in

25 light of all the circumstances, renew the application

Page 6465

1 for Zepce in respect of the one central witness, and I

2 just give people notice of that.

3 Can I now turn to the state of evidence this

4 week?

5 First, the return of Dr. Allcock. He was the

6 first witness on the list. He was coming back to be

7 cross-examined, following the indication by the Defence

8 that they would require half a day with him. The

9 Chamber may have seen a letter dated September the 9th

10 from Hunter and Williams, in which I gather Mr. Kovacic

11 has now joined, which sets out, as it were, a lawyer's

12 opinion of Dr. Allcock, which followed what may be

13 described as a, I suppose, fairly standard

14 cross-examination on qualifications of certain

15 jurisdictions, and then goes on to say this: "They

16 plan to address the opinions offered," and then they

17 characterise Dr. Allcock in what is a lawyer's opinion

18 or an argumentative opinion, I suppose, "with properly

19 qualified testimony from world-credentialed expert

20 witnesses at the appropriate point in the Defence

21 case."

22 Two things follow from that --

23 JUDGE MAY: We haven't seen this letter.

24 MR. NICE: I'm so sorry. It was copied to

25 the Chamber, according to the --

Page 6466

1 MR. STEIN: I can distribute extra copies.

2 MR. NICE: I'm so sorry, Your Honour. If I'd

3 known that, I would have made sure they were available,

4 but it was marked as copied.

5 JUDGE MAY: Perhaps it would be simplest if

6 Mr. Stein explained the letter to us.

7 MR. NICE: Your Honour, yes. I can tell you

8 that Dr. Allcock is here, not only because we have

9 observations to make about the propriety of proceeding

10 in this way and the time that will be taken

11 unnecessarily by proceeding in this way, but also

12 because there may be some re-examination and the

13 Chamber may, itself, have questions to ask of him. So

14 he's here and ready, as I understand it.

15 JUDGE MAY: Mr. Stein, perhaps you can

16 enlighten us as to what you have in mind.

17 MR. STEIN: Thank you, Your Honour.

18 Having in mind Your Honours' ruling of 19

19 March, 1999, rejecting the Prosecution's application

20 that unless questions were specifically put to the

21 witness, the issues raised by the witness's testimony

22 would be deemed waived, having in mind the

23 cross-examination which uncovered Dr. Allcock's

24 expertise or lack thereof, and juxtaposing those

25 qualifications or the lack thereof to the evidence

Page 6467

1 rendered and his opinion, and having in mind the

2 Court's, particularly Judge Robinson's incantation that

3 we need not cross-examine every witness on every thing,

4 we intend to offer no further examination of

5 Dr. Allcock, feeling that it is unnecessary given what

6 I've just said and given that we'll be presenting

7 evidence to challenge his position.

8 We notified the Trial Chamber and the Court

9 so as to alleviate any scheduling difficulties and

10 certainly to let the opposition know that there would

11 be time available today, which had originally been

12 scheduled for Dr. Allcock's presentation.

13 So it is our position to ask no further

14 questions relative to this particular matter, which we

15 forecast by letter and which Mr. Sayers told

16 specifically by telephone to Mr. Scott prior to the

17 letter's submission.

18 We do have -- sorry, sir.

19 JUDGE MAY: Just remind us, if you would:

20 There was some cross-examination then of the witness?

21 MR. STEIN: Yes, we examined Dr. Alcock, if

22 you recall, on his Ph.D., the title of that Ph.D.; we

23 found out it was about tourism. We cross-examined him

24 relative to his masters' thesis, that being done in, I

25 believe, 1967, and that was on the subject of nuclear

Page 6468

1 power protests in Canada.

2 We talked in great length about the kinds of

3 things that sociologists study and on which they render

4 opinions, and Judge Bennouna correctly opined and

5 examined that this particular witness was a generalist,

6 not a specialist.

7 There was some cross-examination relative to

8 one of the conclusions that an order in December

9 relative to displays of religious artifacts might be

10 offensive. The cross-examination discussed that the

11 display order was at Christmastime and relative to

12 Christmas ornaments.

13 Having studied the transcript, and when Your

14 Honours review it, I think you'll find that the lack of

15 qualifications of Dr. Allcock, particularly when

16 juxtaposed to the wide range of specific opinions on

17 specific issues, that they are certainly of a political

18 science nature, of a history nature, of a linguistic

19 nature, go well beyond the expertise that the witness

20 brings to the Tribunal as an expert on tourism and the

21 sociology of tourism and on nuclear power protests in

22 the late '60s in Canada.

23 With regard to the dead, unavailable

24 witnesses, and Mr. Ribicic specifically, Mr. Sayers

25 would like to address the Tribunal very briefly. We

Page 6469

1 have some papers to file so that when the issues become

2 joined, all the papers will be on deck.

3 JUDGE MAY: I should have said that we will

4 deal with those arguments when we can find a convenient

5 time to do so. Any papers that anyone wants to file

6 can be done.

7 MR. STEIN: Very good, sir.

8 JUDGE MAY: Thank you.

9 MR. NICE: Your Honour, the position is very

10 unsatisfactory. The position taken by the Defence

11 represents, I suppose, old-fashioned combative

12 practice. Whatever the precise terms of the ruling

13 made in March of this year were, the ruling has been

14 significantly modulated by the Chamber regularly enough

15 now requiring of the Defence an indication as to what

16 is accepted and what is not accepted, and that has

17 always proved helpful because it narrows the issues

18 down.

19 What concerns us is this: Forget the

20 characterisations of the lawyers, which we can deal

21 with in due course. If they say they have properly

22 qualified testimony from world-credentialed expert

23 witnesses, that means they are not shooting in the

24 dark; they apparently have targets. There are things

25 that the witness has said that they disagree with, that

Page 6470

1 are conclusions to which he should have come and has

2 not come that they show he should reach.

3 As opposed to spending an hour, or whatever

4 it was, engaged in what is a comparatively easy task

5 for traditionally educated specialists of the law, all

6 those who have come to the law with other traditional

7 specialisations; that is, the cross-examination of

8 sociologists is sometimes regarded as fair game but

9 are, in fact, real experts, as opposed to doing that,

10 if time had been spent joining issues, we might have

11 got a lot further. They have an expert or experts,

12 they know what their case is, and it should be raised

13 with this witness.

14 The alternative is going to be extremely

15 extravagant in terms of time and it's not going to be

16 helpful to the Chamber because it will inevitably mean

17 that if and when their experts are called, and, of

18 course, they haven't told us what the names of their

19 witnesses or experts are, although I happen to have an

20 understanding of the name of one of them -- it may be

21 right; it may be wrong -- they haven't told us but --

22 JUDGE BENNOUNA: [Interpretation] Mr. Nice, we

23 are wasting time, precious time, and even if we are

24 meeting after the holidays, we must bear in mind that

25 we are being watched by many institutions, so we

Page 6471

1 mustn't waste time. We could examine this matter

2 procedurally without entering into any lengthy

3 discussions.

4 If I have understood you well, and I am quite

5 awake this morning, Mr. Stein told us that there was no

6 need to cross-examine Dr. Allcock. That is what I

7 understood.

8 Where is the problem then? If the Defence

9 does not see the need, as our colleague, Judge Robinson

10 has said, that they don't need to cross-examine

11 everyone, do you have any comment on that matter?

12 Let's not go back into the history of the

13 proceedings as of last March every time.

14 MR. NICE: I certainly do have a comment, and

15 it's a comment I've made before and I'll make it again,

16 and I was just coming to it, and it's this: If there

17 are issues to be joined, they are better joined with

18 the witness because the expensive and time-consuming

19 alternative will be another witness will be called in

20 the Defence case, raising topics that haven't been

21 raised with this witness, and I shall seek leave to

22 recall the witness in rebuttal, probably having had him

23 here present to instruct me when the witness is giving

24 evidence, all at a great expense of time and money. A

25 great deal of time and money can be saved by modern

Page 6472

1 procedures which include having cases put.

2 The Chamber will recall that I proposed to

3 the Defence that expert reports should be exchanged for

4 agreement of central issues that might be in agreement

5 and that, indeed, experts can be put together to narrow

6 the issues. All those proposals were rejected.

7 What we're going back to here is an

8 old-fashioned slogging match, to use the vernacular,

9 that simply takes time and money. It's not helpful,

10 and the Chamber, with its powers to regulate

11 examination and cross-examination, could and, in our

12 respectful submission, should give this witness an

13 opportunity, through questions that can be focused, of

14 dealing with the Defence case now, rather than obliging

15 him to come back at my request and at the extension of

16 the timetable later on.

17 Those are our observations on that, and we've

18 put that in writing in one way or another to the

19 Defence.

20 JUDGE BENNOUNA: [Interpretation] But

21 Mr. Nice, the letter that you have just submitted to us

22 is dated -- were you not aware of the position of the

23 Defence before calling the witness?

24 MR. NICE: Before calling the witness? No,

25 not at all. If you mean recalling him today, he has to

Page 6473

1 be recalled today in case the Chamber had any questions

2 to ask of him, and I have some questions in

3 re-examination myself and in any event.

4 JUDGE BENNOUNA: [Interpretation] Does that

5 mean that that witness is present in The Hague just

6 now?

7 MR. NICE: Yes.

8 JUDGE BENNOUNA: [Interpretation] Then we have

9 a problem on the side of the Defence, a problem of

10 management of the trial. You can't wait for the

11 witness to come to The Hague to formulate your

12 position. You should have formulated your position

13 before the witness arrived in The Hague. You said that

14 you see no use in cross-examining him, but did you tell

15 us that before, before the witness was brought here,

16 Dr. Allcock was brought here?

17 MR. STEIN: Indeed, we did. Yes, we did. We

18 notified telephonically Mr. Scott on the 7th or 8th of

19 September, and this letter forwarded to the Chamber and

20 copied to you just now was dated September 9 was to

21 avoid the inconvenience of Dr. Allcock reappearing.

22 The Prosecution, in response to our letter, said they

23 were going to bring him no matter what because they

24 wanted to rehabilitate him, which is within their

25 power, or have the Court ask questions. So the issue

Page 6474

1 was raised and I sent it to the Chamber to obviate the

2 need to bring him back.

3 While I'm on my feet, this issue has been

4 batted around. Mr. Nice has consistently wanted the

5 old-fashioned and unused by anyone on our team, British

6 rule, relative to if you don't put something to a

7 witness, you waive. Now, with all respect to my

8 colleague, to the British courts, that's a system I'm

9 not familiar with. As we have thought through it,

10 however, it elongates and doesn't save time.

11 JUDGE MAY: On that point, I disagree

12 entirely. The point is that we have to decide an

13 issue, and issues of fact -- this may not be a good

14 example and you may be right here -- but where there

15 are issues of fact to be decided, then the purpose is

16 that the witness should be able to deal with it.

17 MR. STEIN: Yes.

18 JUDGE MAY: If he'd said, for instance,

19 Mr. Kordic was at a meeting and said something

20 incriminating, and the Defence case is that he wasn't

21 there at all, then the witness should have the

22 opportunity of dealing it because he may have some

23 reason for saying that he remembers Mr. Kordic being

24 there. I give that as an example.

25 But that aside, I don't think we need trouble

Page 6475

1 you any more.

2 [Trial Chamber deliberates]

3 JUDGE MAY: Yes, we shall not require any

4 further cross-examination. As has been observed

5 before, this is a Tribunal of professional judges. It

6 must be doubtful as to how much we are going to be

7 assisted in resolving the case by hearing a great deal

8 of cross-examination of experts. Even if there are

9 clashes of opinion, we do not think we will be assisted

10 by cross-examination, at length or otherwise, in these

11 circumstances.

12 But, Mr. Nice, you are quite entitled, of

13 course, to re-examine.

14 MR. NICE: Yes, I have some re-examination of

15 him, and I will ask him to come in in just a second.

16 Before I do, a word to put you in the picture about

17 other witnesses, may we go into private session, for

18 safety, as I deal with that?

19 [Private session]

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 6476













13 pages 6476-6480 redacted private session




17 --- Whereupon the Motion Hearing

18 adjourned at 10.46 a.m. sine die








Page 6481