1 Thursday, 14 September 2006

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.24 p.m.

5 JUDGE BONOMY: Good afternoon, everyone. I'm sorry we are late in

6 starting but that was caused by the late completion of proceedings in the

7 other trial this morning and from time to time it's desirable that time

8 should be extended in the morning just to ensure that the trial is

9 interrupted at a convenient moment.

10 We will now resume the evidence of Witness K-73 which means that

11 we should return immediately to closed session.

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15 [Open session]

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

17 JUDGE BONOMY: Thank you. Now, Mr. Hannis, is there any reason

18 why P2297 should be under seal?

19 MR. HANNIS: Your Honour, I had initially had it on my list to be

20 under seal, but I'm thinking about it. I don't think it is necessary. I

21 would request, however, that 2300, 2303, 2307 should be.

22 JUDGE BONOMY: Well, I think on reflection, it should -- 2297

23 should remain under seal for the moment until you reflect on it because I

24 can see how it might be inappropriately used. And sorry, the others you

25 mentioned?

1 MR. HANNIS: 2300, which is his most recent statement from

2 September of 2006, 2303 which is the pseudonym sheet and 2307 which was

3 the December 2005 statement.

4 JUDGE BONOMY: They should all be under seal. Yes. That's clear.

5 MR. HANNIS: And 2297, Your Honour, I know there was an issue

6 before when I had tendered it. I think there was an objection and I think

7 you had left it perhaps being marked for identification but I would urge

8 that it be admitted at this point in time subject to furnishing you a

9 final English translation.

10 JUDGE BONOMY: Yes. Well it will be marked for identification

11 pending receipt of that, and it will remain under seal and once you've

12 reconsidered, if you think that should be lifted, you should make an

13 application to that effect.

14 MR. HANNIS: I will.

15 JUDGE BONOMY: And the other, any other exhibit that was

16 tendered -- for example, we had P326, there is no problem with that,

17 that's just a map. And there is a number of sheets of insignia and so on.

18 There is -- none of these that you're concerned about.

19 MR. HANNIS: No, as far as being under seal, Your Honour, no they

20 can perhaps all come in.

21 JUDGE BONOMY: Now, Mr. Ackerman, there is the video.

22 MR. ACKERMAN: That's 4D18, is it?

23 JUDGE BONOMY: Yes, and the transcript, did it have a separate

24 number?

25 MR. ACKERMAN: No, those all have the same numbers, Judge.

1 JUDGE BONOMY: What should be the status of that?

2 MR. ACKERMAN: I'd ask that it be admitted.

3 JUDGE BONOMY: Yes, but should it be under seal?

4 MR. ACKERMAN: Yeah, it has to be under seal. It's got the

5 witness's picture in it.

6 MR. HANNIS: And, Your Honour, I have an objection to it.

7 JUDGE BONOMY: Your objection, Mr. Hannis?

8 MR. HANNIS: My objection goes goes to foundation, Your Honour.

9 First of all, the witness denied that was the meeting he was at. Also I

10 don't know the provenance of this tape. It starts after people have been

11 assembled there, it ends before they leave.

12 JUDGE BONOMY: But there is a controversy over identification and

13 therefore, inevitably, I accept what you say. But a picture is a picture

14 and --

15 MR. HANNIS: I don't object, Your Honour, to a still photograph of

16 the person that they say is him as being the exhibit, but the rest of it I

17 think based on the record to this point it's not relevant. The witness

18 says he was not at that meeting; the meeting was inside.

19 JUDGE BONOMY: I think the way we are applying the rule on

20 admission of material is that any exhibit will be admitted to the extent

21 that it is discussed and has a bearing on the evidence in court. So we

22 wouldn't be considering it for any other reason and therefore it will

23 follow the same course as any other exhibit has followed so far. You will

24 no doubt elaborate upon it at a later stage, but the only issue for me at

25 the moment is whether it should be under seal and I accept what you say

1 and it will be admitted under seal.

2 MR. ACKERMAN: Your Honour, it just occurred to me that we might

3 want to redact that little bit there where I made what some people thought

4 was a joke. That might be a mistake to put in the open transcript.

5 JUDGE BONOMY: I don't really think that there is anything there,

6 Mr. Ackerman. I understand what you're referring to but I don't think it

7 can be any use as long as the film is under seal, then the necessary

8 protection is there.

9 MR. ACKERMAN: I think so, that's right.

10 JUDGE BONOMY: Right. So no point in asking you who your next

11 witness is, Mr. Hannis. But we really do need to hear why there isn't

12 going to be another witness until Monday.

13 MR. HANNIS: Your Honour, I would indicate to the Court this is

14 part of the ongoing difficulty I have with no known parameters for the

15 cross-examination. Defence counsel and I get along very well, we are

16 cooperative, we are professionals, I think, but when I ask for time

17 estimates, often times I'm told it depends on what the witness says on

18 direct, which I understand. And depending on the order which the

19 cross-examination has occurred, if I ask the third one how long he's going

20 to take, he says, well it depends on what the first two do. I understand

21 that as well, but, Your Honour, my estimate for this witness was based in

22 part on my view that in terms of (redacted)

23 (redacted)

24 (redacted) the cross-examination for

25 Mr. Peraj was nine hours and 25 minutes.

1 JUDGE BONOMY: I think there is a part there that needs to be

2 immediately redacted, which we will do.

3 MR. HANNIS: Thank you. And last week, we ended up having running

4 over and having two witnesses that had been here for about 10 days that we

5 had to send home.

6 JUDGE BONOMY: I understand that problem, but I think it was

7 fairly clear in your schedule that this witness would be commencing his

8 evidence on Wednesday.

9 MR. HANNIS: Correct.

10 JUDGE BONOMY: Now, it doesn't seem to us, and we've had some

11 chance to discuss this, it doesn't seem to us reasonable at any stage in a

12 trial to have available only the one witness. Anything could happen to

13 him. And we would have been left with three days of no evidence. That

14 can't be a reasonable approach to the presentation of witnesses.

15 MR. HANNIS: Your Honour, I hear you, Your Honour. The other

16 point in not having someone behind him was because Monday was when we were

17 going to start the videolink witness.

18 JUDGE BONOMY: But that doesn't answer the point I've just made to

19 you, that anything could have happened to K-73 and we would have been left

20 with three days of no evidence, which has got nothing to do with who the

21 next witness is. So I -- we hear what you say, Mr. Hannis, but we take

22 the view that you have caused the loss of tomorrow in its entirety and

23 that that will be held against the Prosecution's time.

24 MR. HANNIS: Your Honour, I hear you. I don't think that's fair.

25 JUDGE BONOMY: Well, you'll just have to accept that that's our

1 decision. And arrangements will have to be made. The most valuable and

2 restricted resource in this Tribunal is courtroom time. We are able to

3 sit in my view ridiculously only three and three quarter hours per day.

4 And that's because of the volume of business going through the Tribunal

5 and the lack of space. Even the most minor courts in domestic

6 jurisdictions throughout the world have a courtroom to themselves for the

7 day and here we are doing one of the most prominent trials in the world

8 and we have to share a courtroom with someone else. And that demands

9 extra effort in arranging for the attendance of personnel at the right

10 time. And it seems nothing has been learned in the early stages about the

11 management of the attendance of personnel and if it takes a sanction to

12 try to bring the point home, then the sanction will be imposed.

13 MR. HANNIS: Your Honour --

14 JUDGE BONOMY: So that deals with the question of tomorrow's --

15 the loss of tomorrow. We now want to turn to the issue of the motion

16 that's been made by the combined representatives of the Defence that we

17 should reprogramme the schedule for the week of 25 to 29 September. Now,

18 Mr. Ackerman, is this mainly your responsibility or is someone else

19 nominated to deal with this.

20 MR. ACKERMAN: You must recognise my writing style, Your Honour.

21 I actually wrote the motion but it was a joint effort. We all

22 discussed it. And I take it you'd like me to address it at this point.

23 JUDGE BONOMY: Yes, please.

24 MR. ACKERMAN: Your Honour, on -- I have not counted up the number

25 of occasions. On a number of occasions over the last year or so, ever

1 since you started talking about starting this trial in July at least, I

2 have done everything I could to make it clear to the Court that we were

3 not ready for trial, that we had not had time to look at the material that

4 had been provided by the Prosecutor, that we had not had time to review

5 the Rule 68 material, that we had not had time to do all the things that

6 an any decent lawyer should do in preparing for a trial of this magnitude.

7 In the response to those motions and those entreaties to the

8 Court, I was always told that I should not worry, that we would have

9 adequate time for preparation and that I shouldn't worry about that. And

10 we are still involved in the process of trying to get ready for trial,

11 Your Honour. We are still reading that material that we weren't able to

12 read before this trial started, in what I would say a very precipitous and

13 unjust manner. And I'm now trying to get caught up and so I spend a lot

14 of my time trying to figure out what this case is about by reading this

15 material and then I spend a lot of my time trying to prepare for

16 cross-examinations. That is not an easy task. I can tell you that for

17 the cross-examination I did today, I spent eight hours outside the Court

18 in preparation for it. And I didn't waste any time in that process.

19 Because I know so little about this case, I was unable to prepare

20 beforehand that I have to do a lot of things that should have been done a

21 long time ago, if I had had time to do them. So I have to do them now. I

22 have to search the databases. I have to learn as much as I can about the

23 area that the witness is going to talk about. Those are all things that

24 are outside what the witness is going to say in the statement of the

25 witness. Frequently we have large bunches of transcript from the

1 Milosevic trial that we have to deal with in preparation for these

2 witnesses. And it's an enormous task. To be ready to come in here and

3 try to do the kind of decent job that our clients expect us to do in the

4 kind of efficient way that Your Honour expects. And that's what we are

5 striving to do. We are working very hard to honour your desire that we

6 move this case forward as rapidly as possible.

7 You spoke a moment ago about how domestic courts have access to

8 courtroom all day and how you think it's ridiculous that we are only here

9 for three and a half hours or so in a day. Your Honour, I've been doing

10 this for a long time and I've never been in a domestic court that had the

11 magnitude of material, the number of pages and volumes and -- of material

12 that needs to be dealt with in preparing for this case and for

13 cross-examinations in this case. If there was a case of that nature in

14 any domestic court that I've ever been aware of, there certainly would

15 have been sufficient time pre-trial to become prepared. So I would ask

16 that you honour that commitment that was made to me when I asked that this

17 trial not start in July, that I would have adequate time for preparation.

18 And if you expect me to spend all day in court during that week, there is

19 no way that I can have the time for preparation, because we are here from

20 9 in the morning until 5 in the evening and there is no preparation time

21 then. It's just not there. There is maybe four hours at night that I can

22 actually put into the case which I'm already doing. I'm already working

23 most nights until 10.00 or 11.00 and I work the whole morning when we have

24 an afternoon session. I'm putting in 12, 14 hours a day as it is. So

25 it's just not possible.

1 And I want this -- we are here to do justice. That's why we are

2 here. If we are not willing to do justice then we should close down and

3 leave. We are not here to set a time record on trying a case. We are not

4 here to try a case as rapidly as we possibly can. We are here to do

5 justice and all I'm asking for is the opportunity to do that. Give us the

6 opportunity to do our job. We will certainly help you do yours, if we

7 have that opportunity. Thank you.

8 JUDGE BONOMY: Thank you.

9 Now, Mr. Hannis, do you wish to comment on this?

10 MR. HANNIS: No, Your Honour, thank you.

11 JUDGE BONOMY: Well, just give us a moment.

12 [Trial Chamber confers]

13 JUDGE BONOMY: Mr. Ackerman, this is actually a very difficult

14 situation for the Chamber, because we have limited capacity for manoeuvre,

15 and we made a point of fixing our own recess time at times we thought

16 would be suitable or convenient for your work as well, in other words,

17 more or less midway through the session between summer and the end of the

18 year. So there is a week off immediately after the week that we are

19 discussing, and then there is a lengthy weekend shortly after that. And

20 of course the Prosecution have drawn to our attention already in their

21 submitted witness list that they feel handicapped in making adequate

22 progress by the fact that there are these two breaks. So we've to balance

23 the various interests. We appreciate the efforts that have being made by

24 all parties to be fully prepared.

25 We don't accept your submission that cross-examination has been

1 inhibited by lack of preparation time. Where we've been critical of some

2 cross-examination, it's not been because of lack of preparation. It's

3 been for other reasons. So we think that so far, parties have

4 demonstrated that they are able to cope with a preparation for witnesses

5 as they come along. And you can only be expected to be prepared for the

6 witnesses that you've been notified will come in the fairly near future.

7 We think also that your submission diminishes your own talent for coming

8 to grips with the relevant material. And when I say your own talent I

9 don't confine that remark to you personally. That's extended to all the

10 counsel who are conducting the case here. If we have any criticism to

11 make of the way in which things are conducted in court generally, it's

12 that there are too many counsel in court. If you're having difficulty

13 getting to grips with the material then I would have expected your

14 assistants not to be here, but to be beavering away in the material that

15 has to be dealt with. We don't require all of you sitting there to

16 represent any particular situation.

17 Please sit down until I finish speaking.

18 So it's a matter for you how you conduct matters, but we take

19 account of what we see here.

20 So we will reflect a little longer on what you have to -- in what

21 you've said before we come to a final decision on this. And rather than

22 take up time tomorrow, we will issue a decision in writing so that you can

23 take full advantage of tomorrow to continue your preparatory efforts.

24 But there is one other matter that we will give you an opportunity

25 to address, if you wish to. We think that we need to take some action to

1 focus, to encourage greater focus in the cross-examination. Where we are

2 dealing with actual crime sites and not individual criminal

3 responsibility, we think there has to be more restraint than has been

4 demonstrated so far in the cross-examination and we are giving a

5 consideration to applying time limits to individual witnesses in the

6 course of the week that we are currently discussing. For example, we

7 think the Prosecution can be limited in the amount of viva voce evidence

8 they lead from witnesses for whom they have statements in one form or

9 another as the main part of that witness's evidence. And we are thinking

10 along the lines of restricting the Prosecution to 20 minutes or half an

11 hour in these cases and cross-examination to about ninety minutes in each

12 of these cases.

13 How we deal with the witnesses who are entirely viva voce is

14 difficult for us to work out exactly at the moment, but that would depend

15 on the estimated time for these witnesses, and we will have a look at that

16 and consider allocating a particular time for cross-examination. Now, we

17 envisage that that will mean more rapid progress through some of the

18 immediately forthcoming witnesses, which you will say compounds your

19 difficulty, but we have to balance that factor as well when we make a

20 decision.

21 Now, we've looked at the hours occupied so far by examination and

22 cross-examination, and we think that the balance that I've hinted at is

23 about right. It reflects the time that's actually been used so far in

24 general terms. But if you wish to comment on that, then we are willing to

25 hear these comments before making a decision on it.

1 MR. ACKERMAN: I do, Your Honour. That's -- what you say is

2 interesting and intriguing and I think perhaps can assist, but let me tell

3 you what we have tried to do. We tried to have meetings on Sunday

4 evenings where we can together discuss the witnesses for the week upcoming

5 and actually make the kind of decision that you'd like us to make about

6 who might be the lead cross-examiner on that witness, what matters are

7 that are important and to try to do exactly what you're suggesting, to

8 make the cross-examination as efficient as possible. The problem we run

9 into is this: We can have that meeting on Sunday evening and make all

10 those decisions and the next thing that happens is we get a bunch of new

11 statements from the Prosecutor and then everybody has a problem with the

12 new statements and they have to expand their cross-examination. And we

13 can't get together every day. We can't have getting the six lawyers

14 together to try to put something like that across is extremely difficult.

15 We are able to do it maybe once a week. And part of the problem we are

16 having, frankly, if we didn't have to deal with new statements from the

17 Prosecutor every time, I could be prepared quite a ways ahead on these

18 witnesses and not have this problem. But you spend all this time on

19 preparation and all of a sudden you get a new statement and you have to go

20 back and redo it all and do a lot of extra investigation and all kinds of

21 things. That's where the real seat of the problem is and we can do this

22 if we didn't have that. But I don't think there is any way to get around

23 that. These witnesses come here and tell new stories.

24 JUDGE BONOMY: Well, one way is, as I hinted at before, was to

25 apply a cutoff date to the delivery of any additional material, a certain

1 time before the witness arrives. Mr. Hannis said, well, that would be

2 both his hands tied behind his back. He couldn't introduce any new

3 material and he would have witnesses coming giving unrealistic accounts of

4 their evidence. So we are trying to balance that, having got into this

5 condition as well.

6 Any way, what I read into what you're saying is you're not -- you

7 can understand our view that it may be helpful to the progress of the

8 trial to try to identify a fair time limit and then perhaps it will assist

9 the Prosecutor to identify how many witnesses he needs to have available

10 and we'll all know better where we stand.

11 MR. ACKERMAN: Well, yeah, I was saying, Judge, that it would be

12 helpful if we didn't have this additional complication of new statements

13 at the last minute.

14 JUDGE BONOMY: I entirely appreciate that point.

15 MR. ACKERMAN: I might be -- it might be very easy to for me to

16 agree with Your Honour that a particular witness the cross-examination

17 should last no longer than 90 minutes, but then all of a sudden a new

18 statement comes and then I have to a say we need another hour and that can

19 happen and I don't know how to get around it frankly.

20 JUDGE BONOMY: Mr. Hannis, can you help at all on the point about

21 the late production of additional statements? I take it there is no way

22 around this?

23 MR. HANNIS: I don't know a simple solution to it, Your Honour,

24 but I would indicate some of these things described as additional

25 statement are what we are calling supplemental information. It may be a

1 page or it may be three paragraphs. And sometimes they answer questions

2 that don't have to be asked. Now that they clarified something that was

3 in the original statement. I have a question. You suggested 28 or 30

4 minutes for us on direct with some of these witnesses and 90 minutes for

5 cross. Is that 90 minutes total or 90 minutes per lawyer.

6 JUDGE BONOMY: No, 90 minutes total.

7 MR. HANNIS: Thank you.

8 JUDGE BONOMY: Rough -- I can indicate that the division of time

9 so far is very roughly two and a half times the length of Prosecution

10 examination-in-chief and re-examination has been used in

11 cross-examination. And that perhaps reflects accurately the appropriate

12 balance, but it's the length of time that's got to be I think more

13 controlled for -- in the interests of everyone and in the interests of

14 expedition and fairness.

15 MR. VISNJIC: [Interpretation] Your Honour, I beg your pardon, but

16 may I just make a comment, because I'm a bit confused. Even if you cut

17 the Prosecutor's time short for the examination-in-chief, we still have to

18 deal with the same amount of information we have. Irrespective of how

19 long the cross-examination -- the examination-in-chief lasts. I'm afraid

20 that if we still keep the same ratio it may work to our detriment. I find

21 that to be unclear.

22 JUDGE BONOMY: What I was suggesting was using that week to see

23 how it works with witnesses. And you know yourselves that if in a

24 particular case it would appear to be likely to work adversely, then you

25 would make an appropriate application to vary it, but bear in mind, that

1 in most instances the Prosecutor has endeavoured to confine himself to an

2 hour -- to half an hour. It hasn't always been possible and we are

3 looking at a reflection of the equivalent from the record we have of the

4 time that's been taken so far. Well, as I said, we'll reflect on all of

5 that and we will issue a written decision. If it doesn't please you --

6 sorry, Mr. Ackerman.

7 MR. ACKERMAN: I'm sorry. With your leave can I just add one more

8 thing? I hate to do that but I'd like to.

9 JUDGE BONOMY: Yes.

10 MR. ACKERMAN: Your Honour, I think the statistics are that we've

11 had 32 days of trial and we've gone through 28 witnesses in that 32 days.

12 I think the other trials, the other multiple-defendant trials in this

13 Tribunal, can't even come close to matching that. I think Srebrenica is

14 on their fourth witness. And I'm not sure what's going on in the Croatian

15 trial. But I think we are really moving dramatically faster than anybody

16 else and --

17 JUDGE BONOMY: But the witness is entirely different. If you're

18 looking at the evidence today, for example, in the case that's been

19 running longest, Prlic, you're talking about an ambassador involved in

20 the -- I would imagine, the issues of individual criminal responsibility

21 and therefore, the examination and cross-examination are going to be of a

22 different length. We are almost exclusively, almost exclusively dealing

23 with witnesses about the crime sites which very seldom have any bearing on

24 individual criminal responsibility in this case, but maybe the cumulation

25 will, but if that's all that the Prosecution have, Mr. Ackerman, then I

1 doubt if you've got too much to worry about.

2 The stuff that you have to worry about, I hope, is tucked away

3 much later in the trial and that's why we've got to, if the Prosecution

4 have chosen, and I think it's a wise choice, to bring that evidence first,

5 we've got to be conscience of how much time is going to be necessary later

6 to be fair to you and I was hoping that you would all bear with the idea

7 that we try during that week to get through a significant number of these

8 crime-base witnesses. And if we fail, if we demonstrate that it's not

9 working, then we have to stop, but we'll have lost nothing by at least

10 trying to do it, especially since it's -- that period would be immediately

11 followed by a break and another break shortly after that, when you would

12 be able to regroup and get any particular issues that have to be further

13 explored dealt with in that time. However, we have heard what you have to

14 say and are going to reflect on it.

15 Mr. Ivetic, you may have wished to say something.

16 MR. IVETIC: I would first like to apologise for standing

17 prematurely. I just want to bring to Your Honour's attention that I

18 believe there is a misperception of the presence of all the assistants in

19 the courtroom. With the number of trials that are going on at the

20 Tribunal, you cannot get a computer out in the Defence counsel room; it's

21 over-filled. This is the only place where we can get access to a computer

22 that actually has a connection -- that can do everything we need to do.

23 We cannot use e-court remotely. So I just want to bring that to Your

24 Honours attention. For instance I have the next witness here and the one

25 after that in my briefcase and I've got EDS on the screen. And that's

1 what I've been doing while I've been listening to the testimony from the

2 witnesses. Since there is a large number of Defence counsel and support

3 staff and there is a very limited number of computers.

4 JUDGE BONOMY: I'm pleased to hear that that work is going on

5 actively while you sit there. It's clear to me that that's not the case

6 so far as everyone is concerned, but that's not a statement that their

7 presence is unnecessary. I entirely appreciate the presence of those who

8 observe, listen and assist maybe important in individual instances. All I

9 was saying was that I did think that there might be ways of spreading

10 yourselves a bit more thinly over the preparation of the case than was

11 immediately obvious. But I hear what you say. So we resume -- Mr.

12 Hannis.

13 MR. HANNIS: One last unrelated thing regarding the witness Hazbi

14 Loku, Mr. Stamp had told me that we were going to be allowed to move in

15 the admission of certain pages of the Milosevic transcript and we were

16 asking for pages 1925 through 1933, 1940 to 1945, and 2032 to 2035.

17 JUDGE BONOMY: Have you alerted the Defence already to this, Mr.

18 Hannis?

19 MR. HANNIS: No, we have not, Your Honour.

20 JUDGE BONOMY: All right. Well, would you make the motion again

21 on Monday having given that notice so that if there is any contentious

22 point, it can be drawn to our attention at this stage?

23 MR. HANNIS: We will, thank you.

24 JUDGE BONOMY: Thank you. So we will adjourn now and we will

25 resume on Monday at 9.00.

1 --- Whereupon the hearing adjourned at 7.06 p.m.,

2 to be reconvened on Monday, the 18th day of

3 September, 2006, at 9.00 a.m.

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