1 Wednesday, 9 January 2002
2 [Pre-Trial Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.30 a.m.
6 JUDGE MAY: Let the registrar call the case.
7 THE REGISTRAR: Good morning, Your Honours. Case number
8 IT-99-37-PT, the Prosecutor versus Slobodan Milosevic.
9 JUDGE MAY: The appearances, please.
10 MR. NICE: As Your Honour will see, the Prosecutor, Madam Del
11 Ponte, is here. I appear with my learned friend, Mr. Ryneveld, and Ms.
12 Romano, who will be the court team for this trial.
13 MR. KAY: For the amici curiae, I'm Steven Kay, QC of England,
14 Misha Wladimiroff from the Dutch bar, and Branislav Tapuskovic of the
15 Yugoslav bar.
16 JUDGE MAY: The trial in this case has been fixed for the 12th of
17 February of this year. This is the Pre-Trial Conference to be held under
18 Rule 73 bis of the Tribunal's Rules of Procedure and Evidence. We will
19 begin by dealing with issues which relate to the Prosecution. We will
20 then hear from the amici curiae, and deal finally with matters relating to
21 the defence, when the accused will have the opportunity to be heard.
22 Beginning, then, with the Prosecution. Broadly, there are three
23 matters relating to witnesses and disclosure, together with exhibits. In
24 relation to witnesses, the Rules require the Trial Chamber to set the
25 number of witnesses to be called and to determine the time available for
1 the Prosecution to present its evidence.
2 Mr. Nice, the Trial Chamber, as you know, in its Scheduling Order,
3 asked the Prosecution to inform it of the number of witnesses to be
4 called, the order for doing so, and any matters relating to protective
5 measures not covered in previous orders.
6 I'll ask you to deal with those matters. Also, to deal with a
7 number of written statements which it's sought to be introduced.
8 I have some matters in relation to admissibility which I want to
9 raise, but it may be convenient if, first of all, we dealt with the number
10 of witnesses and the order for calling them.
11 MR. NICE: Your Honour, can I explain? Today, Mr. Ryneveld is
12 going to deal with nearly all the nuts and bolts issues that you've raised
13 in your Scheduling Order, and in particular with issues 1 (A) to (F) and
14 there are documents that will help you and others in relation to that.
15 There are only three topics that I want to deal with at some stage today.
16 I'll just tell you what they are and I'll hand over, if that's acceptable,
17 to Mr. Ryneveld.
18 The three issues that I'd like to deal with at some stage
19 are, first, whether the accused should receive any additional caution in
20 respect to things he says in the course of these proceedings.
21 The second issue is -- and this relates, of course, not just to
22 this trial but to the associated trial, the other two indictments,
23 whether, and if so on what terms, details of protected witnesses should be
24 provided to an accused who expressly does not recognise the authority of
25 the Court.
1 And the third issue I'd like to deal with generally and in respect
2 of which an extensive report has been provided is the issue of Rule 68
4 But having identified those topics as topics on which I'd like to
5 speak, can I hand over to Mr. Ryneveld to deal with the other matters
6 that you've raised. There's a document that he wants to be distributed.
7 I haven't got copies of it. If I can make those available to you via
8 your usher, I'll then sit down.
9 JUDGE MAY: Mr. Nice, it may be convenient for you to deal with
10 the disclosure point when we're dealing generally with disclosure, which
11 we will, and for you to deal with the other two points really at the end
12 of dealing with the Prosecution matters.
13 MR. NICE: As Your Honour pleases, yes.
14 JUDGE MAY: Yes. If we could have those documents.
15 MR. NICE: There's three for the Chamber or four for the Chamber,
16 three for the amici, and one for the accused.
17 JUDGE MAY: Yes, Mr. Ryneveld.
18 MR. RYNEVELD: Thank you, Your Honour. Your Honour, I propose, if
19 I may, to deal with the issues raised in the Court's order of the 4th of
20 January and the order in which they appear in that order, points (A)
21 through (F).
22 Dealing first with point (A), the number of witnesses to be
23 called. The Prosecution anticipates calling approximately 110 witnesses
24 by way of viva voce evidence of the potential 201 that were identified in
25 our 65 ter witness list which was filed on the 26th of November.
1 In our submission of that same date, the Prosecution indicated
2 that we would be seeking to call additional witnesses presently subject to
3 Rule 70 restrictions. At the last Status Conference on the 11th of
4 December, the Prosecution advised the Trial Chamber that we would forecast
5 a group of insiders, a group that may be growing and of great value, of
6 approximately 25 to 30. These are all included in the figure of 110 that
7 I now provide to the Court.
8 Therefore, the estimated potential group of witnesses originally
9 totaled, I believe it was 231, and of that number, the Prosecution
10 proposes to call approximately 110 by way of viva voce evidence, and with
11 leave of the Court, will tender the evidence of 123 crime base witnesses
12 by way of 92 bis statements. In the event the Court, of course, does not
13 grant permission for the witnesses' evidence to be submitted by way of
14 92 bis, the Prosecution would then seek leave of the Court to call those
15 witnesses viva voce. So our total number of witnesses, those are the
16 number of witnesses we need to prove our case, in our submission.
17 Of those 110 I've now outlined to you we intend on calling viva
18 voce, the breakdown is roughly as follows: Crime base and investigators
19 to cover the crime base would be 48. Policy witnesses, of whom as of
20 today 10 still have Rule 70 restrictions pending, 25; experts, 11;
21 insiders -- now, we said last day there would be 25 to 30. I anticipate
22 that there are 20, potential of up to 20 insiders, many of whom are still
23 being developed. And miscellaneous, 6, for a total of 110.
24 Now, the Court also asked the Prosecution to address the issue of
25 protective measures, if any, likely to be sought for each witness. Well,
1 on the 14th of November of last year, the Trial Chamber granted the
2 Prosecution's motion to provide protective measures for 29 identified
3 witnesses, and they received pseudonyms of K1 through to K29. At the
4 moment, the Prosecution does not know of any other witnesses who to date
5 have expressed safety concerns warranting the seeking of additional
6 protective measures. It may be, however, that during the course of the
7 trial that some witnesses, for various reasons, may request protective
8 measures during the course of the trial. For example, some of the
9 potential insider witnesses who consent to give evidence may require
10 certain protective measures. Similarly, witnesses currently covered by
11 Rule 70 restrictions may agree to testify only if certain protective
12 measures are granted. The Prosecution then proposes to raise these
13 matters with the Trial Chamber on a case-to-case basis as the situation
15 Now, the order in which witnesses are to be called. You have,
16 just prior to my speaking, been provided with a list of witnesses, and if
17 I might assist to give you a brief overview of what those columns denote
18 and how they were arrived at.
19 As you can see, there appear to be five columns. The left-hand
20 column underneath the word "date" is our projected date on which the
21 witnesses would be called. Assuming the trial starts on the 12th of
22 February, we would anticipate that the first day would be taken up
23 substantially with opening statements and legal or administrative matters
24 which may consume most of the first trial day. If, of course, we are
25 pessimistic as to how long that would take, then, of course, we could
1 start the witness on the 13th -- I'm sorry, on the 12th, and these figures
2 would consequently have to change.
3 Now, the next column is the number of the witnesses that we have
4 identified, and you'll see that at the last page, page 8, there are 90.
5 So from 1 to 90 are shown in the second column. Those are intended to be
6 the viva voce evidence witnesses.
7 The third column which sets out the proposed 92 bis witnesses, the
8 next column has all of their names. And the final column shows their
9 original witness number as contained in the Rule 65 ter filing.
10 So, for example, when we get down after number 7 on the 19th of
11 February, you'll see the first 92 bis witness is named and that witness
12 was the third witness on our 65 ter list. That's how this works.
13 Now, you will also note that there are subheadings which indicate
14 more or less the way in which the Prosecution anticipates proceeding.
15 "Overview and Introduction," you'll see that we have proposed an original
16 four witnesses under that main category. And then we move into the
17 deportation witnesses, and that continues to the bottom of page 1, page 2,
18 and all the way down to almost the bottom of page 3 where there is then
19 "Deportation Analysis," and there are some experts then proposed to be
20 called and then some 92 bis witnesses. And then the next column would be
21 personal dealings with Milosevic and then names of people mentioned there,
22 et cetera. I think it's fairly self-explanatory how we propose to go.
23 The other thing that the Court might note is that to date we only
24 have an indication as to court sitting times to the Easter break. So we
25 have projected as best we can how long we anticipate these witnesses would
1 take, and of course, we cannot tell. This is our best guesstimate
2 depending, of course, on length of cross-examination, if any, by either
3 the amici or the accused, Mr. Milosevic, or indeed members of the Trial
4 Chamber itself. We may be hopelessly optimistic about how long these
5 things may take; we may be on. I don't know. This is our best estimate.
6 But to finish my earlier thought, you will note that at about
7 page 5, we stop at number 49. That would be the 28th of March, by our
8 estimate. Thereafter we do not have a court schedule giving us an
9 indication how long we'll be sitting or whether the process -- so there
10 you'll see numbers, plus one, plus two, plus three. Those numbers mean
11 the first day, the second day, the third day, as it were, right through to
12 the end.
13 JUDGE MAY: Well, supposing, and I don't see why there should be
14 any difficulty about this, but supposing we were going to sit through to
15 the recess, which is at the beginning of August. When do you anticipate
16 that your case would be closed?
17 MR. RYNEVELD: Well, again, based on these -- based on these
18 estimates and -- it's very difficult to anticipate when the case would be
19 closed, because we don't know to what extent there will be an involvement
20 in cross-examination.
21 JUDGE MAY: No. We accept that.
22 MR. RYNEVELD: Yes. My best guess would be approximately the end
23 of September, with the -- with the August break in between. It may be
24 that we will be done by the end of July, but --
25 JUDGE MAY: The Trial Chamber obviously has discussed this case,
1 and I can tell you that we have in mind a shorter case. The first
2 matter is that, as far as the various incidents are concerned, you should
3 aim to call one witness. Now, that, having had a look briefly at this,
4 appears to be what you are doing.
5 MR. RYNEVELD: It is.
6 JUDGE MAY: But we were also having in mind -- have in mind that
7 it may well be possible to cut down the number of written statements that
8 you tender. If you have a witness which -- who covers most of an
9 incident, that should be sufficient. What we have in mind particularly
10 is, of course, in general there should be no repetition of evidence.
11 MR. RYNEVELD: Repetition --
12 JUDGE MAY: Meaning repetition.
13 MR. RYNEVELD: Yes, as opposed to corroboration. I understand
14 what Your Honour is saying.
15 JUDGE MAY: It will, of course, depend on the way in which the
16 case develops, but if it appears that there is no challenge to a
17 particular part of the evidence, then there will be no need for it to be
18 repeated. If, of course, there is a challenge, then that's a matter that
19 may require repetition or corroboration.
20 MR. RYNEVELD: I can tell the Court that we will, of course,
21 review these matters again, but for each of these sites, not one witness
22 tells the entire picture, and we have called the fewest number of
23 witnesses who, when supposed together, would deal with the substance that
24 we feel needs to be covered. In other words, just like a jigsaw puzzle,
25 each witness will give a part of it, and in order to show, for example, a
1 deportation site or a killing site, it may require the evidence of three
2 or four witnesses in order to adequately explain it. Not one witness
3 might explain it all.
4 We will, of course, review that once again, and if in fact there
5 are witnesses who are repetitive, we would not call those by way
6 of 92 bis. In other words, the 92 bis number could be reduced. But as I
7 now understand the situation, we have already attempted to do that, and
8 some witnesses give certain parts of their evidence which are necessary,
9 in our respectful submission, to prove a particular ingredient of the
11 It -- that's about all. We will review that further. Now, it may
12 be that I have been pessimistic in giving the Court a date or a time at
13 which we think that the Prosecution case will close, but my experience
14 here has been that you -- that you can't hurry these matters. There is
15 usually cross-examination, and matters do take time, and there are usually
16 legal issues that come up in between. Parts of days are lost by
17 arguments, legal arguments, and we haven't accounted for that in this
18 timing, so we're just calling witnesses back to back. So perhaps I'm
19 being somewhat pessimistic, but to be honest with the Court, I can't see
20 us closing before the end of July.
21 JUDGE MAY: Can I make sure that I understand this document and
22 your figures?
23 MR. RYNEVELD: Yes.
24 JUDGE MAY: In the document, there are numbers for the live
25 witnesses, and there appear, at the moment, to be 90 live witnesses that
1 you've numbered, with the possibility of a further 20.
2 MR. RYNEVELD: Yes.
3 JUDGE MAY: Would that be right? That's your 110?
4 MR. RYNEVELD: That's my 110.
5 JUDGE MAY: Then we have your 92 bis, your written statements, and
6 they number up - is this right - to 123?
7 MR. RYNEVELD: That is absolutely correct.
8 JUDGE MAY: Let me raise one other matter with you which concerns
9 the expert evidence. Now, I think to date that the -- what has been
10 disclosed is a total of nine potential experts in your bundle which we've
11 had. I note that you now refer to 11, but you've only disclosed, so far,
12 nine, and there are two of those which I am concerned about.
13 MR. RYNEVELD: Yes.
14 JUDGE MAY: Where there is, as there is here, an accused who is
15 representing himself in person, it will obviously be necessary for the
16 Trial Chamber to take particular care about the admissibility of
17 evidence. I make that point in a preliminary way. And looking at the
18 details - and we've only got that at the moment, of these experts - I
19 notice that you're intending to call a military analyst from the
20 Prosecution to describe the organisation of the Serb forces in Kosovo. We
21 will have to look in his case, obviously, at his qualifications to deal
22 with that.
23 MR. RYNEVELD: Yes.
24 JUDGE MAY: So I put you on notice of that point.
25 The other matter is that, according to your list, you're going to
1 call somebody who is simply identified as a historian who will apparently
2 deal with the historical context of relations between Serbs and Albanians
3 in Kosovo.
4 Now, again, let me put you on notice that we shall look very
5 carefully at this sort of evidence. While it's right that historians have
6 been called before this Tribunal, there must be a limit to the amount of
7 evidence which we can obtain or have put before us, particularly in the
8 light of history. The amount of historical evidence we will want to hear
9 is very limited.
10 MR. RYNEVELD: I can appreciate that, and I am aware, of course,
11 of those kinds of -- witnesses having been called in other cases in the
12 past and sometimes they've consumed four or five days of trial time. That
13 is not our intention in this case. It's to give a thumbnail sketch,
14 basically, to give the Court a perspective of the background of the events
15 leading up to the conflict in Kosovo, because as my learned friend
16 Mr. Nice has explained, Kosovo -- Kosovo are the bookends, basically, of
17 the conflict, and the Court needs to hear the historical perspective of
18 what occurred. And I'm sure my learned friend Mr. Nice can elucidate
19 further on that, should you choose.
20 I thank the Court for alerting us to that. I might say that in
21 response to the military analyst, there is again precedent for military
22 analysts being called in other cases at this Tribunal, but I appreciate
23 what the Court has said, and we will certainly ensure that this individual
24 be -- his CV -- that he is a qualified witness, and we will attempt to
25 qualify him.
1 If I might move on, if the Court --
2 JUDGE MAY: We'll deal with these issues now, and we'll then move
3 on to disclosure, unless there's something in relation to disclosure which
4 relates to what you've said already. I mean, I have in mind dealing with
5 that as a separate issue.
6 MR. RYNEVELD: Yes. At the moment, we're still dealing with the
7 order of the witnesses.
8 JUDGE MAY: If there's something else you want to add, of course.
9 MR. RYNEVELD: Yes. I want to deal with the issues (D) -- (E) is
10 disclosure. (D) and (F) then, perhaps. (D) was the number of witness
11 statements or transcripts of prior testimony sought to be admitted and I
12 think are probably dealt with in these discussions, that there are
13 some 123 witness statements. But I did not discuss with you the proposed
14 timetable other than, of course, the fact that the proposed timetable is
15 shown in the list of witnesses, that the first of those would come,
16 according to our schedule, on the 19th, in other words, on the day that
17 we propose to tender them.
18 Now, we had hoped to have these 92 bis statements available before
19 trial. Unfortunately, because they have to be translated into Albanian,
20 we don't have those available at this particular time, but we are told
21 that they should be available in time for when we propose to deal with
22 them as indicated in our order of witnesses.
23 The final point under that heading, the Court also asked whether
24 there are any transcripts or prior testimony sought to be admitted. To my
25 knowledge at this point, there are no transcript -- there's no transcript
1 evidence of prior testimony. This is, of course, a subject matter that
2 has not been litigated before at this Tribunal.
3 If I may touch briefly on point (E) before Mr. Nice deals with the
4 balance of the disclosure issues --
5 JUDGE MAY: We're going to deal with the witnesses first - that's
6 what we have in mind to do - and make some rulings or at least consider
7 the issue before moving on to disclosure. But help us with the protective
9 MR. RYNEVELD: Yes.
10 JUDGE MAY: At the moment, there are 29 orders in relation to
11 witnesses with pseudonyms.
12 MR. RYNEVELD: Correct.
13 JUDGE MAY: One thing we're going to have to consider is when it
14 will be right to -- for you to disclose the identity of those witnesses.
15 In the past, we've made orders, I seem to think in some cases of 30 days
16 prior to testimony, this sort of thing, although occasionally we have made
17 shorter orders.
18 What are you asking us to do in this case?
19 MR. RYNEVELD: Well, this is tied in with a comment that my
20 learned colleague made earlier, and that is the issue that he just raised
21 that he wanted to deal with about whether or not it may be appropriate to
22 disclose those names or protective measures to someone who has stated that
23 he does not accept the authority of the Court, and perhaps --
24 JUDGE MAY: Let us deal with that.
25 MR. RYNEVELD: Perhaps I'll give the floor to Mr. Nice, then.
1 JUDGE MAY: No. What we'll do is this: We'll deal with
2 disclosure altogether. At the moment, we'll simply deal with these orders
3 for witnesses that you're applying to us to set. The Court will consider
4 the matter.
5 MR. RYNEVELD: Thank you.
6 [Trial Chamber confers]
7 JUDGE MAY: Mr. Ryneveld. We've considered the submissions. As I
8 say, we have, of course, had the opportunity of considering the matter
9 generally and, for the purposes of the Rule, we consider that a total of
10 90 witnesses should be sufficient, having regard to size and complexity of
11 the case, but that will not prevent you making the application during the
12 trial for additional witnesses on good cause for challenge if the
13 witnesses come forward. But you should work on the basis of 90 as being
14 sufficient and see if you cannot cut down some of the other witnesses in
15 that regard. And if you go above that number, then you'll have to justify
16 it. That will be the order.
17 Likewise, would you look at the 92 bis statements. We're not
18 going to make an order in relation to them, but you have to consider the
19 complications that are caused by very large numbers of witnesses in the
20 conduct of the case. So again, look at that and see whether you cannot
21 cover these incidents with a more limited number of witnesses.
22 With regard to timing, we'll be dealing with the scheduling of the
23 case in due course, but it seems to the Trial Chamber that you should be
24 able to get through your case by the recess, the date for which is by no
25 means certain but will be towards the beginning of August. So that,
1 effectively, gives you five months and more.
2 So those are our orders in relation to the witnesses, subject, I
3 should say, of course, to anything anybody else has to say.
4 MR. RYNEVELD: I appreciate that.
5 JUDGE MAY: But at the moment, that's the order.
6 MR. RYNEVELD: Thank you, Your Honour. So 90 witnesses of the
7 Prosecution's choosing, I take it, with --
8 JUDGE MAY: Yes.
9 MR. RYNEVELD: Thank you. Just the number is limited.
10 JUDGE MAY: Yes.
11 MR. RYNEVELD: Thank you. And should we -- just so I'm clear,
12 should it become necessary to exceed that number, we are at liberty to
13 bring on an application justifying why it's necessary.
14 JUDGE MAY: Yes.
15 MR. RYNEVELD: Thank you. Might I very briefly deal with the two
16 other matters before turning the floor to Mr. Nice, and that is -- I'll
17 deal with (F) next, if I may. The current status of translation into one
18 of the working languages of the Tribunal of all documents to be produced
19 as exhibits, may I deal with that next? Thank you.
20 As of yesterday, last night, 10.00, it appears that 86 per cent or
21 more of all of our proposed exhibits are now available in English. As the
22 Court is aware in our 65 ter filing, we listed a potential 1471 exhibits.
23 Of those, roughly half, 700 or so, are already in English and the rest
24 have been with the translation department. As of yesterday, 159 documents
25 were still outstanding with the Translation Unit, but we are hopeful that
1 those matters should be available to us before the commencement of the
3 And finally, the current status of disclosure before my learned
4 friend deals with the issues of disclosure that the Court wants to raise,
5 we've already notified the Court under 66(A)(i), that was complete as of
6 the 29th of November, and under 66(A)(ii), we have summarised that in our
7 report to the Court filed on the 4th of January at paragraphs 5 and 6, but
8 in essence, 72 witness statements were disclosed in B/C/S by the 29th of
9 November. On December 19th, 24 more witness statements of the proposal 43
10 crime base witnesses were disclosed in B/C/S, and an additional 21
11 statements pertaining to witnesses who have been granted protective
12 measures by the Trial Chamber still exist and have not yet been disclosed,
13 subject to whatever rulings you might make today regarding that. So they
14 are there and available.
15 So the balance of the statements under 66(A)(ii) are still with
16 the Translation Unit and we hope to receive them, we're told, by the end
17 of this month. So by the end of January, we hope to have all our
18 exhibits into B/C/S -- or into English or a language for disclosure.
19 JUDGE MAY: As far as the exhibits are concerned, the Trial
20 Chamber will simply make this order, that no exhibit is to be admitted
21 into evidence which has not been translated. The matter seems to be in
23 I'll come back to exhibits in a moment, but let us deal with
24 the disclosure as far as the witness statements are concerned. We've seen
25 your report, and we've come to this conclusion, again subject to anything
1 which anybody wishes to raise in due course. We shall order that the
2 statements of the live witnesses are to be disclosed prior to trial. Now,
3 that means that those statements must be given priority. If statements
4 are not disclosed, we will consider whether the witness should be called
5 or not. And in any event, no witness is to be called until 30 days have
6 elapsed since the disclosure of his or her statement. And we'll come back
7 in due course to deal with the question of disclosure of identity.
8 In the case of the 92 bis statements, the witnesses who are
9 subject to that provision, the Rule provides that no application shall be
10 made to adduce the witnesses under that Rule, their evidence, until 14
11 days after disclosure. Perhaps I could remind you of that.
12 MR. RYNEVELD: Do I -- sorry, just for clarification, do I
13 understand Your Honour to say that, for example, the first witness to be
14 called on the 13th of February would have to be disclosed 30 days -- in
15 other words, by Friday?
16 JUDGE MAY: Yes.
17 MR. RYNEVELD: Yes. Thank you. That's my interpretation. I just
18 wanted to make sure I have that right.
19 JUDGE MAY: So it's clear. Perhaps while you're on your feet,
20 Mr. Ryneveld, we could deal with some matters concerning the exhibits. I
21 note that at the moment it's 1471 exhibits that you've disclosed. There
22 are concerns about the admissibility of some of these exhibits. First of
23 all, we note that you have disclosed 55 video recordings, and you've
24 indicated what the relevance is, but looking at them, it appears that many
25 of them contain very much hearsay and opinion evidence or are irrelevant.
1 This is at first glance. And while it's right that the Tribunal has
2 admitted clips of news broadcasts and the like and some discussions and
3 some television programmes, there are a number which are a cause for
4 concern. What I will do is simply number them for you, for you to
5 consider --
6 MR. RYNEVELD: Thank you.
7 JUDGE MAY: -- their relevance and admissibility and in due course
8 the matter can be argued. The numbers are these, the line numbers from
9 your bundle: 2478 to 2488, 2510 and 2511, 2514, and 2517 to 2523.
10 If you would look again at those, and if you wish to adduce them,
11 we'll hear argument about it.
12 The other area which is a matter for concern is in the policy
13 documents, as they're described, and I have in mind 187, about, newspaper
14 reports. I exclude the reports from the police or the army organs to
15 which you referred, but there appeared to be about 187 others. And again,
16 I would ask you to reconsider the admissibility of those reports, their
17 relevance, particularly in a case where the accused is not represented.
18 There are similar concerns about the books which you refer to, and
19 they are lines 1170, 1199, 1560, and 2269. Likewise, there are two
20 transcripts of evidence which appear in your list of exhibits. I don't
21 know what you propose to do about those, but you may like to look at them
22 and consider whether you want to go on with them.
23 On the other hand, the military and police reports and orders, the
24 official reports and the monitoring reports are usually admitted in the
25 Tribunal, and in our view at the moment prima facie are admissible,
1 subject, of course, to any objection being made.
2 MR. RYNEVELD: Thank you, Your Honour. I might tell the Court
3 that we are constantly revising and reviewing these documents that have
4 to be filed on the 26th of November, and I do not anticipate entering all
5 of those in any event. So we will be cutting down our exhibits lists or
6 our exhibits that we anticipate being entered by approximately half.
7 JUDGE MAY: Thank you. The transcripts of evidence are at 1206
8 and 1218.
9 MR. RYNEVELD: 1206 and 1218. Thank you.
10 JUDGE MAY: Unless there are any other matters you want to raise,
11 Mr. Ryneveld, thank you.
12 MR. RYNEVELD: Thank you, Your Honour.
13 Mr. Nice.
14 MR. NICE: It will be helpful to deal with the issues I referred
15 to earlier in a slightly different order, starting with disclosure because
16 the Court has been focusing on that.
17 Until this trial, and unless I'm wrong about this, every accused
18 and the representative of every accused has respected the Tribunal and has
19 accordingly held him or herself out expressly or by conduct as being
20 amenable to orders of the Court. This is the first case where someone has
21 failed to expressly recognise the authority of the Court, and therefore
22 it's the first case where thought has to be given by both the Prosecution
23 and, with respect, Your Honours to the issue of whether such a person is
24 entitled to details withheld in the interests of the safety of witnesses,
25 of their identity.
1 We have conducted some review of other jurisdictions to see if
2 there's any guidance. None has been found. In our submission, this is a
3 difficult problem because although of course the Court's in a position to
4 say, "We will make an order and breach of that order may bring with it a
5 sanction" and of course the accused will know if such an order is made
6 with the threat of a sanction, that he is at risk of whatever sanction
7 may be imposed, but the Court will appreciate that it is dealing with
8 someone who has no respect for the order that it makes.
9 We know that the accused declines, it appears, to deal with or to
10 receive in a formal sense the materials that are served on him, but I
11 understand that the materials are in fact available to him in a room set
12 aside for his use.
13 In these circumstances, we ask the Court to consider withholding
14 details of the identities of protected witnesses from the accused until
15 the moment when the witness enters the courtroom, unless the accused is
16 prepared to undertake to the Court to honour the restrictions that will be
17 imposed or would be imposed on him by the order that the Court would
19 We draw to your attention that although, as I have already said,
20 all other accused and their representatives have respected and recognised
21 the Court, nevertheless, there have been several examples of specific
22 orders being issued against -- not against but to counsel, imposing on
23 them and detailing restrictions as to how they should deal with material.
24 For example, the Court will recall in other cases orders saying
25 specifically to counsel not to be further communicated to anyone else
1 save, that is, essential for the preparation of the defence, orders to
2 that genera effect.
3 Thus with that in mind, we invite the Court to consider the
4 possibility of simply saying no provision of details unless the accused is
5 prepared to give an undertaking
6 If, contrary to that, the Court is of the view that the details
7 must be provided at some stage before the witness enters the courtroom, we
8 would invite the Court, because of his failure to recognise the Court and
9 its orders, we'd invite the Court to say that the time period should be a
10 very short one and would invite the Court to consider a period of no
11 longer than two weeks.
12 JUDGE MAY: Speaking for myself, it's difficult to see how the
13 accused could begin to prepare cross-examination if he doesn't know the
14 identity of the witness.
15 MR. NICE: That is a problem.
16 JUDGE MAY: He could begin to prepare, of course, but how he could
17 prepare fully that cross-examination if he doesn't know the identity, and
18 since he's representing himself, he must be in a position to be able to do
20 JUDGE ROBINSON: Might I just add, Mr. Nice, to what the Presiding
21 Judge has said, which I fully endorse. I've had occasion to say before
22 that in my view, the fact that the accused has said that he does not
23 recognise the Court is of no legal consequence to the Court. Nothing
24 turns on it. And in my view, it is not a proper factor to be taken into
25 account in questions of disclosure, particularly when it would jeopardise
1 the preparation of his case.
2 We have dealt with the jurisdictional issues that have been raised
3 by the accused. I think it would be something of a contradiction for us
4 now to adopt a position which is based on the accused's so-called
5 non-recognition of the Court. It is not a factor of which this Chamber
6 should take account, in my view. It has no legal consequence and nothing
7 turns on it. And in this case it would be wholly improper, as the
8 Presiding Judge has said, because it would jeopardise the preparation of
9 his case.
10 What we have to do, regardless of whether he accepts the
11 jurisdiction of the Court, regardless of whether he recognises the Court,
12 we have to ensure that he gets a fair trial. That is our fundamental
13 obligation. And he will not receive a fair trial if the details of the
14 identity of witnesses were not disclosed to him.
15 Now, that's my position.
16 JUDGE MAY: I think in some cases, or I seem to recollect making
17 orders which were as short as ten days for sensitive witnesses.
18 MR. NICE: Your Honour has indeed made orders of that brevity.
19 And if I may just respond to the helpful observations of His Honour
20 Judge Robinson. Of course, the fact that the accused says he doesn't
21 recognise the Court has no legal effect on the status of the hearing or
22 indeed the power of the Court's orders. Nevertheless, it may be - and
23 this is the reason I press the Court to consider the issue and then
24 consider the brevity any order made for the provision of names -
25 nevertheless, the fact that someone says he doesn't recognise a Court and
1 its orders may increase, and legitimately increase, the concern of the
2 Court and indeed of the Office of the Prosecutor that orders made may be
3 breached, and that concern then has to be set beside our joint interest
4 in, and concern for, the protection of witnesses.
5 JUDGE ROBINSON: Yes, I appreciate that. You seem to be raising
6 it more as a pragmatic matter.
7 MR. NICE: Yes, indeed.
8 JUDGE ROBINSON: Not a legal issue. But nonetheless, I think
9 the overriding issue is the fair trial of the accused. We may be able to
10 consider a period of ten days, because there is precedent for that.
11 MR. NICE: And Your Honour --
12 JUDGE MAY: We have in mind ten days.
13 MR. NICE: I'm grateful, Your Honour, and I'm not going to press
14 the matter in those circumstances.
15 Can I say two things about the list with that in mind? I should
16 have said this earlier. First, the list being prepared and distributed
17 this morning, experience of these trials shows that documents not properly
18 filed sometimes become relevant at a later stage and then can't be found.
19 We will file this so that it has a proper registry number and then it will
20 form part of the record.
21 If the Court looks at this document, the first witness for whom
22 protective measures has been granted appears on the 20th of February, K19,
23 and accordingly, under the order of the Court, the statement details of
24 that witness will be disclosed a couple of days before the hearing begins
25 on the 12th of February, and we're grateful for that.
1 I don't think there's anything else on the disclosure that I'd
2 like to raise.
3 MR. KAY: Would the Court forgive us, because it's difficult
4 coming back to a subject once it's moved on, and there are concerns for
5 the amici on this issue of disclosure. We don't think it would be proper
6 for us to be subject to any ten-day provision, because it would hamper our
7 conduct of matters in preparing for the trial.
8 JUDGE MAY: Well, let's deal with that now. What do you propose
9 in relation to the amici?
10 MR. NICE: A longer period, in our respectful submission, is
11 appropriate. I haven't had a chance to discuss these matters -- I've had
12 a chance -- we haven't, in the event, taken the opportunity that was
13 available to us over the past few days to discuss this particular issue,
14 and I don't know what period in time the amici are after.
15 JUDGE MAY: Thirty days?
16 MR. KAY: Thirty days is the usual, and it would be unfair to us
17 to have any shorter period in view of the preparations that we have to
19 JUDGE MAY: Very well. Thirty days.
20 MR. NICE: Yes. We have no objection to that at all.
21 Can I move to the next short topic that I wanted to raise, and
22 that relates to what the accused has said and may say on future occasions
23 in court when invited by the Court to respond to issues or to, in due
24 course, deal with witnesses.
25 I have conducted some rather informal research amongst my
1 colleagues who practice in the civil system where those on trial have more
2 regular opportunities to, and frequently do, speak to the Court between
3 witnesses, at the end of every witness, and so on. A different experience
4 from those of us coming from the common law background.
5 The consensus view from the number of colleagues to whom I've
6 spoken is that a caution may not be in any sense essential in such systems
7 before what is said by the accused can become material in the case for the
8 Tribunal to consider in due course, but I think there is consensus. They
9 of course probably never having had to deal with a case of exactly this
10 type before themselves, there is consensus that it would be prudent for
11 the accused to be cautioned either once, or maybe more than once, that
12 what he says may become material in the case.
13 I discussed this issue with Mr. Wladimiroff over the telephone a
14 couple of days ago. I think he concurs, although I think his view may be
15 that the caution should be more regular than just once or on a few
16 occasions. But that apart, I think we're in agreement.
17 JUDGE MAY: Perhaps you can develop it. What is the form of the
18 caution and why do you say it's necessary?
19 MR. NICE: The form of the caution would, I think, have to be
20 along the general lines that what is said in these proceedings may become
21 material for the Tribunal to consider in due course when making its
22 decision on the indictment.
23 Why is it necessary? I don't believe it is necessary in the sense
24 of essential or legally necessary, but it is probably desirable.
25 Why is it not essential? It's not essential for this reason: If
1 in the course of one of these hearings the accused were to say something
2 adverse to his interest or even that might constitute an admission, then
3 subject to the general rules of exclusion, such observations by him would
4 be provable before the Tribunal even if the Tribunal hadn't heard them
5 themselves, and could become part of the evidence in the case, just as if
6 he made such remarks elsewhere and had been over-observed or overheard by
7 a witness making them. So it's not essential, and that, I think, is the
8 consensus view of those to whom I've turned for advice.
9 Is it advisable? Sorry, there's a second reason why it's not
10 essential. When he was arrested, he was indeed given his rights at that
11 time by the investigator who dealt with him, as I understand it.
12 JUDGE ROBINSON: What was the precise caution given then?
13 MR. NICE: I haven't got that with me. We can find it, but it
14 would be the caution in accordance with the Rules.
15 Is it advisable? In our respectful submission, yes, it is. A man
16 on trial is, of course, facing particular pressures which may lead to him
17 being incautious in what he says. It is regarded in the investigative
18 stage and generally at the stage where a person is given the opportunity
19 to give evidence in a court, it's regarded as wise to alert him to the
20 seriousness of the position in which he finds himself and thus to caution
22 JUDGE ROBINSON: Mr. Nice, do you make a distinction between
23 submissions which may be made by the accused in the same way that
24 submissions may be made by counsel for the Prosecution and evidence that
25 he gives?
12 Blank pages inserted to ensure pagination corresponds between the French
13 and English transcripts. Pages 259 to 262.
1 MR. NICE: It may well be that the Tribunal, without guidance from
2 its own Rules, would in due course make some distinction as to the weight
3 that would be attached to sworn testimony as opposed to observations made
4 in the course of submission. That will be for the Tribunal. But no, we
5 don't otherwise make a necessarily category or categorical decision
6 between what he says in the course of observations, perhaps in the course
7 of legal argument, and what he would say when giving testimony pointed to
8 factual issues.
9 If in the course of legal argument, and this has been our
10 experience of the accused, he elects to say things that relate to them --
11 to the facts rather than to legal issues, why, then, things he says are as
12 much material in the case, subject to any difference in weight that would
13 be attached to them, as if he said those things in the course of giving
15 But, Your Honours, we are concerned that the accused should
16 appreciate, as he will appreciate from what I've been saying, that he
17 should appreciate in a caution coming from the Court that what he says
18 will be material in this trial and, therefore, in due course may be part
19 of the material that we will argue should be held against him.
20 [Trial Chamber confers]
21 JUDGE MAY: Yes, Mr. Wladimiroff.
22 MR. WLADIMIROFF: Thank you, Your Honour. May I touch on the
23 issue as well? The amici make a distinction between two issues which I
24 think are essential in this matter. We feel that one should make a
25 distinction between a response to any question and, therefore, give a
1 caution that someone is not obliged to answer, on the one hand, and the
2 spontaneous submission, on the other hand.
3 If you look into the Rules, you will find in Rule 42, section
4 (A)(iii), that the accused has the right to remain silent
5 during the investigation and to be cautioned that any statement the
6 suspect makes shall be recalled and may be used in evidence.
7 Now, here it doesn't seem that this distinction is not made,
8 because one could read it either as a right to remain silent and if you
9 answer to any question, that is a statement that may be used in evidence,
10 or one could read it in a way that any statement, irrelevant whether there
11 was any question before asked to the accused, any statement should be
13 We feel that if the accused is asked in court any question, of
14 course he should be cautioned. There is no doubt in my mind that that
15 would be the proper approach. Therefore, we also feel that is the
16 obligation of the Court to caution him. But if he's making spontaneous
17 submissions, then we feel that one caution will be sufficient to deal with
18 the matter, and that's the distinction we make. So we have a more simple
19 approach than the Prosecution.
20 JUDGE MAY: Thank you. We'll consider this.
21 [Trial Chamber confers]
22 JUDGE MAY: We'll consider this and make an appropriate order in
23 due course.
25 MR. NICE: The last of the topics that I need to deal with, apart
1 from touching on the other cases and their state of disclosure which I'd
2 like to deal with before the end of morning, the last topic is Rule 68,
3 disclosure generally as it applies both to this case and to the other
5 The Court will have had, and I hope will have had an opportunity
6 to consider the report with its annex by Mr. Reid. That report reveals
7 the quantity of material held by the OTP, the procedures that have to be
8 gone through to make the material susceptible to electronic search, the
9 procedure adopted for electronic searching of the material, and in general
10 terms, the procedures applied thus far in order that the OTP can comply
11 with its Rule 68 obligations as thus far understood.
12 If the Court would be good enough to go to page 8 of the document,
13 I can summarise the position in which we find ourselves at the moment.
14 The Court will recall that there had originally been a project planned
15 according to the very broadest of criteria for searching under Rule 68.
16 Following the last hearing where I referred to the problem and suggested
17 that the amici might want to be involved in this issue, there was a
18 meeting where narrower criteria were identified very much on an
19 approximate basis with only a short time for consideration.
20 Those narrower criteria would still require the following human
21 resources to complete Rule 68 disclosure on that basis: It would require
22 the work of, let me put it in these terms, 14 person years to get the
23 material out and probably a similar period of time or a little more to
24 review that material, so something approaching 30 person years of work.
25 So that if I had 30 people, of course we have nothing like that available,
1 it would take a whole year to go through that exercise, 60 people, six
2 months, and so on.
3 This problem, of course, is a reflection of the quantity of
4 material that the OTP holds and is a reflection of the fact that no doubt
5 starting at a time when much smaller quantities of material were
6 available, it was thought that the broadest, most generous approach to
7 Rule 68, was what should be pursued, applying generous parameters to all
8 the material. It may be, and I hope that the document is helpful
9 generally, not just in relation to this case, it may be, now that the
10 Chamber knows precisely what is involved in these searches, that this
11 general approach will have to be reviewed by the organs of this
12 institution, but that doesn't solve the immediate problem.
13 Before I turn to how we may address the immediate problem, the
14 Chamber will see at the end of the report that we have made various
15 suggestions, but they're liking to be suggestions for the future rather
16 than for this case, including suggestions which we hope are not deemed
17 impertinent as to how the Rule change -- how the Rule may itself in due
18 course be changed.
19 For this case, may we invite the Court to consider the following:
20 First and principally this: The accused is likely to know if and where
21 exculpatory material that may be in our possession may be located. If
22 he can be invited, and if invited, if he responds to identify where he
23 believes exculpatory material may be found, then that will enable us to
24 focus our search and we will do so. And I gather that not dissimilar
25 exercises have taken place in the Plavsic case. Not under Rule 68, but
1 under, I think, one of the other provisions where requests have been
2 focused by the Defence leading to focused examination by the OTP of its
3 database of material.
4 If the accused is not disposed -- first of all, if the Court is
5 disposed but the Court -- but the accused is not disposed to respond to
6 any such invitation, then we are left to our own devices, and it is our
7 duty, of course, to comply with Rule 68 so far as we reasonably can.
8 The amici tell me this morning that following the last meeting at
9 the end of last year, they have given further thought to the matter, and I
10 think Mr. Kay will be able to assist you with that. All we will be able
11 to do, and we would do this with their assistance and cooperation, is to
12 focus our searches even more narrowly with an eye to the overall time
13 scale of the case. Our resources are limited in human terms. We will be
14 able probably to work out roughly how many person days of work are
15 available to us for this case to perform the Rule 68 disclosure, and we
16 can, perhaps with the amici, and perhaps indeed with the assistance of the
17 Tribunal, not immediately now but later, we can identify the appropriate
18 parameters to apply.
19 One last point on this before I perhaps sit down and allow Mr. Kay
20 to develop the position. It seems to me it might be helpful, both to the
21 amici, to the accused, and to the Tribunal, to have some catalogue of the
22 materials that we have. A large percentage of our materials are either
23 Rule 70, so they're not capable of being listed in any public way.
24 Another very large percentage is not susceptible to be categorised or
25 catalogued, but a significant part of the material is capable of being
1 catalogued and I have brought a list of such catalogues with me today for
2 distribution. And this may be helpful because, of course, if an accused
3 knows or indeed if the amici knows that we have a particular collection of
4 documents seized from this location on that particular date, then it may
5 stimulate either the amici or the accused to say, well, within that here
6 are some documents that might indeed be favourable to the accused's case;
7 let's search those.
8 So doing the best I can to help this process, I have got that
9 document available for distribution if people would like to see it.
10 JUDGE MAY: It may be sensible to file it in due course.
11 MR. NICE: Certainly. Your Honour, that's all we can do. One
12 other point on how we meet our Rule 68 disclosure obligations which I
13 don't think is necessarily spelt out in the report, and it's this:
14 Whenever a witness comes to give evidence, we of course have to prepare a
15 binder of materials that relate to that witness. We conduct as exhaustive
16 a search as we can, and that material is gone through for several
17 reasons, obviously, to see what the witness is going to say in addition to
18 what we already know he is going to say, and so on, but at that stage
19 anything that is then judged to be Rule 68 is turned over, and we take the
20 view, and I'm sure this is correct, that that process has to be given
22 So of the resources available to us from now on and through the
23 trial, those resources will be used in priority on the witnesses who are
24 coming and checking on anything that is Rule 68 for those witnesses.
25 Prior inconsistent statements is just one example of the sort of material
1 that it is plainly right that we focus on and ensure are made available to
2 an accused. But that exercise necessarily restricts because it reduces
3 the amount of labour available for the other broader exercise.
4 [Trial Chamber confers]
5 JUDGE ROBINSON: Mr. Nice, I'm interested in the last approach you
6 just outlined, where you individualised the search in relation to a
7 prospective witness for exculpatory material.
8 MR. NICE: Yes.
9 JUDGE ROBINSON: As you say, Rule 68 has given rise in the past to
10 a lot of debate, and it may be time for the Tribunal, institutionally, to
11 consider this Rule, but until that is done, we have to work with it. It
12 is, essentially, an obligation imposed on the Prosecution, and in most
13 legal systems, it is a Prosecution obligation to disclose exculpatory
14 material. The proposals that you have made would involve, in some
15 respects, collaboration with the -- with the amicus.
16 I see the matter essentially as a Prosecution obligation and would
17 not wish to depart from that, and it may be that the approach that you
18 outlined of discharging the obligation in a piecemeal fashion in relation
19 to each individual witness as the witness is brought might be
20 satisfactory, and that would be in contradistinction of the obligation
21 which appears to be imposed by Rule 68 to discharge the obligation in a
22 more general way at the beginning of the trial. I think that is a matter
23 which the Chamber could consider.
24 MR. NICE: Thank you.
25 JUDGE MAY: Of course, the accused will have heard what you've
1 said, and if there are areas in which he thinks that there are searches
2 which can be made to produce material favourable to his case or he knows
3 of particular material, why then he's only got to indicate it and the
4 searches can take place, and he's heard you say that.
5 As for the remainder of the obligations under the Rule, it amounts
6 to this: that you can only do the best that you can. And I don't think
7 that anybody expects beyond that. Clearly you must carry out, as you
8 referred to it in your document, a good-faith search, and the Court and
9 the Tribunal generally is reliant on the good faith of the Prosecution.
10 But beyond that, it's difficult to think of any order under the present
11 Rule which we could make, but we'll hear Mr. Kay.
12 MR. NICE: I'm grateful. Before I sit down, just this: I will
13 file the document headed major collections of the Office of the
14 Prosecutor. I do have a document that reveals the search criteria for
15 both the broadest and the narrower searches that were contemplated. I can
16 make that available or I can file it, but I'm reluctant to add to the
17 burden of paper that's already heavy in this, as in all cases, unless the
18 Court particularly wants it. But I can explain the criteria if the Court
19 wants to hear it.
20 JUDGE MAY: Yes. I understand Mr. Tapuskovic also wants to
21 address us on this.
22 MR. KAY: Yes. I propose to deal with the matter first and then
23 Mr. Tapuskovic will also address the Court. It's merely this: that the
24 scale of this task under the Rule 68 obligation has only gradually been, I
25 think, comprehended by all the parties in the Court as to the scale of the
1 task. As a result of that, we met the Prosecution and had a discussion
2 and since then we've drafted our own strategy document of the areas which
3 we see, having read the supporting material, the preliminary Rule 68
4 procedure, as to which we see throws up likely issues within the case.
5 To a certain extent we're second guessing, but again, it's the best we can
6 do from the materials so far supplied.
7 What we proposed was that Mr. Tapuskovic, as a Serbo-Croat
8 speaker, as well as with his assistant who speaks English, are better
9 suited to assist the Prosecution with this task. It remains their
10 obligation, but they're inviting cooperation from an external party which
11 we feel we should take up. And the solution that we have developed among
12 ourselves, and agreed on this yesterday, will be to, so to speak, make
13 that a responsibility under the strategy document that we've drafted so
14 that he can then focus upon with the Prosecution.
15 We have a resource problem ourselves in relation to this because
16 we are in negotiations with the Registry as to the input of the resources
17 to help us because we want to be ready by the trial and have matters under
18 control during the trial. I don't want to get the Court involved in this
19 yet, but to assist us to perform this task, we need the assistance
20 of the Registry and that is a resource implication that we're hoping to
21 thrash out with them today.
22 But having drafted the strategy document, we feel that a more
23 focused search will, so to speak, sort out the chaff from the wheat, and
24 one can see from the preliminary Rule 68 disclosure that vast areas of it
25 would not be of concern. I can appreciate why the Prosecution have
1 disclosed it, but they won't, so to speak, help matters within the focus
2 of the trial itself, and we hope to be able to provide a more focused
4 Perhaps Mr. Tapuskovic can take matters a little bit further.
5 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honours. When we
6 discussed this problem yesterday, I really did not understand this as
7 being something by way of assistance to the Prosecution. From this latter
8 document, or rather from the brief that we received on the 4th of January
9 from the Prosecution, 2002, I learnt about the amici curiae, and I learned
10 that the government of Serbia, the government of the Republic of Serbia,
11 in fact several days ago or, rather, in December last year, sent to the
12 Prosecution 27.000 pages relevant to the activities of the liberation army
13 of Kosovo, and I considered that it would be very interesting to study
14 this precisely in view of the strategy that was mentioned here.
15 You heard a moment ago that if anybody were to delve in those
16 problems himself, it would take him 14 full years. So 14 years, that
17 would be an absurd situation, which anybody would have to face to deal
18 with just one problem of this kind. But learning of that piece of
19 information, that there is documentation regarding the activities of the
20 liberation army of Kosovo on 27.000 pages, I did consider that the study
21 of those documents could be highly beneficial for this strategy of ours,
22 the strategy that we have devised. That is the first problem.
23 And the second problem, and I would like to take this opportunity
24 to present my views on it with respect to what the Prosecution said, when
25 we come to a caution, the caution that should perhaps be given to the
1 accused at certain points during the trial. I do understand that cautions
2 could be beneficial and useful if the Court were to address the accused
3 himself on any particular issue, but to issue cautions to the accused at a
4 moment when he is -- defends himself and he has opted to defend himself in
5 person, would restrict and limit precisely this decision to be his own
6 Defence counsel. And as far as I understand it, if you issue a caution
7 when you ask him something, that is in order, but when he himself is
8 dealing with certain questions and that this caution can be used to his
9 detriment, I don't think that that would be in order. Thank you.
10 JUDGE MAY: Yes. Thank you. Clearly, this is a matter which is
11 going to have to remain under review throughout the trial. If it's
12 necessary, time will have to be given for it. One hopes that it will not
13 hold up the trial in any way. But if new material arrives, it will have
14 to be considered, such as the material that Mr. Tapuskovic mentioned.
15 Mr. Nice, it's time for the adjournment but let me mention
16 something to you which arises from something you said earlier about
17 the witnesses coming into court and producing material, and that is that
18 we would find it helpful to have dossiers produced along the lines of the
19 Tulica dossier, although the reference to the Kordic case, where a dossier
20 was produced relating to events in a particular village, all the
21 information concerning the events in that village were put in a dossier,
22 and that was very helpful. You remember there were rulings about what was
23 admissible and what wasn't. But it occurs to us it may be helpful for us
24 to have similar dossiers relating to the municipalities in this particular
25 case. It may be that you're already doing it.
1 MR. NICE: I don't imagine that will be a problem. I'll report
2 back after the break, but I don't imagine it will and problem.
3 JUDGE MAY: It's simply a matter of the presentation of evidence.
4 Yes. We will adjourn for half an hour.
5 --- Recess taken at 11.00 a.m.
6 --- On resuming at 11.30 a.m.
7 JUDGE MAY: Yes, Mr. Nice.
8 MR. NICE: Your Honour, there should be no problem in providing
9 files that are specific to the locations. To assist the Tribunal, I
10 imagine what you have in mind is files containing exhibits already listed,
11 simply collected on a location by location basis, together with such other
12 documents as may relate to those locations, and I'll try to have
13 that done.
14 That raises one more issue I wanted to deal with this morning, and
15 I'll raise it now. We intend before witnesses are called to provide you
16 with a summary of the witness. As the Court will know from other
17 hearings, those summaries are typically only prepared in the day or days
18 immediately before the witness comes to give evidence because those
19 summaries reflect in part what the witness will have said in the proofing
20 session that takes place a day or so before he gives evidence.
21 We will try and make them of the length most helpful to the
22 Tribunal. I'll return to that in a second. But it will not be possible
23 for us to provide them other than in English. If that creates any problem
24 because the accused, although he understands English and we understand can
25 read it, if it does create pose a problem for the accused, then there may
1 have to be some revision given to that as a plan, but subject to that our
2 plan is to provide them in the format more useful for the Tribunal.
3 There have been various models in the past. There have been those
4 that been short headline points, a couple, three pages, perhaps to a
5 maximum of five for a big witness, designed to enable the members of the
6 Tribunal to scan the documents in advance and to see the topics and in
7 absolute outline what the witness is going to say. There have been longer
8 versions, with which Mr. Ryneveld is in particular familiar from one of
9 his cases, where the document most closely resembles a full or revised
10 witness statement or full proof of evidence. Typically, as we tried it
11 out over the weekend to see how long and how short these documents would
12 be, such a statement of a major witness might become 10 or 12 pages.
13 We're in -- so far as we've got the resources, we will be in the
14 Tribunal's hands if the Tribunal feels able to tell us what it would like.
15 If you don't, my plan would be to put in perhaps something that falls
16 between the two, a document of numbered paragraphs with a heading for each
17 paragraph and then a few words or sentences under that heading giving the
18 substance of what the witness will say.
19 JUDGE ROBINSON: I think, Mr. Nice, you're on the right track,
20 something between the short and the long. And particularly something of
21 sufficient substance to allow the accused and the amici to look at it and
22 make a determination as to what parts they would object to your leading
23 on. That is one of the advantages of that practice.
24 MR. NICE: I'm very grateful. If we may take that as the view of
25 the Chamber, then we'll act accordingly.
1 Two other points arising from this morning. The collection of
2 documents Mr. Tapuskovic referred to is a collection that first fell into
3 our possession on two days, I think, in October of last year. It was
4 processed locally so far as could be done, with the help of local language
5 assistance. It is now coming to The Hague where there are a limited
6 number of translators who can deal with the Albanian language, but their
7 time is already bespoke for other projects, not least the 92 bis project.
8 And although it won't be so very far distant before a very significant
9 part of these documents may have some form of summary identifying what
10 they are, I simply cannot tell you when they will be fully processed.
11 Obviously, they're being worked on with all dispatch.
12 Arising from this morning's rulings about the 30 days, the 30-day
13 period before a witness gives evidence, at which time his statement should
14 have been served, I suspect that will simply not be possible if witnesses
15 keep their place as in the list distributed this morning, for there are
16 certainly one or two statements that are not yet ready for service, and I
17 think simply will not be served within -- at the 30-day period. Number 3,
18 for example, is a particular candidate. We will obviously move with all
19 speed to get those statements in as early as possible, but I'm quite sure
20 that the 30-day period will not be possible for all of them as listed at
22 There is then a problem in relation to translation of those
23 documents into B/C/S, and a further problem in relation to any earlier
24 statements, not necessarily inconsistent statements but earlier
25 statements of those witnesses which it's our duty to provide but which
1 themselves will not have been translated into B/C/S.
2 We will have to make our decision about prioritising what is to
3 be translated, and provisionally my view is that we should give priority
4 to the actual statements of the witnesses that are going to come and give
5 evidence, putting to some degree second the translation of any earlier
6 statements that they may have made. And any adverse consequences of this
7 approach will be mitigated by the fact that we'll be able to serve English
8 versions on the amici who will, although of course they don't represent
9 the accused in any way, they will at least be able to identify any problem
10 areas arising from the differences between the statements, even if the
11 accused himself doesn't read the statements or by his reading of them
12 doesn't identify those differences. But that's a problem. It will
13 have to be dealt with on a witness-by-witness basis, and that's my
14 present intention.
15 That's all I have to say in relation to this case. One other
16 matter so far as the Bosnian indictment is concerned. Disclosure of the
17 materials supporting that indictment is due, I think, by our calculation,
18 on Friday. I've got a full report. I can summarise its effect for you.
19 Nearly everything is already available and, indeed, there are 18
20 binders waiting for the amici, and I'd ask them to collect them today
21 rather than oblige us to find some other way of getting them to them.
22 They're available in the Registry today.
23 Insofar as there is outstanding material, it's outstanding simply
24 because of translation problems, and even when we get the translated
25 documents back, we are redacting them, perhaps in anticipation of an
1 order, but we're obviously having to act on the basis that we will be
2 able, in the short-term or whatever term is appropriate, to withhold
3 details of certain witnesses. And subject to that, we think that all this
4 material should be available for the amici and for the accused to then fit
5 into their 18 volumes by the 25th of this month, Friday the 25th. And if
6 we can't meet that date, we will let the parties know.
7 I suddenly remember there's one other topic that I meant to
8 mention, and I am reminded of it by sight of one of your officers in court
9 from an earlier case, the Kordic case.
10 It will probably be sensible for us to meet with your officers in
11 order to plan how to mark exhibits in the trial, how to number them and so
12 on. That needn't take the Court's time now if you're happy that we should
13 deal with it with your officers on a delegated basis.
14 JUDGE MAY: Yes.
15 MR. NICE: We understood, as a result of earlier trials, that
16 although, where possible, a chronological numbering system can be helpful,
17 the system that was employed in the Kordic trial where we tried to keep a
18 chronological numbering system by using sub-numbers was found to be
19 confusing. And if that's the case, we won't seek to do that on this
20 trial. We'll do something different.
21 JUDGE MAY: Thank you, Mr. Nice. The matter which I want to deal
22 with now concerns the scheduling of the case on which you may want to make
23 some submissions.
24 Dealing with the dates, first of all. The first matter concerns
25 the dates the 20th to the 22nd of February, the second week of the trial.
1 Judge Robinson will be away on public duties on the 20th and 21st of
2 February. Judge Kwon and I will sit alone under Rule 15 bis for those
3 days. The 22nd of February is, in fact, an UN holiday, so the Court will
4 not be sitting.
5 Turning next to the Easter break. Friday, the 29th of March and
6 Monday the 1st of April are UN holidays, so the Court will not be sitting.
7 And we shall not sit between the 2nd and the 5th of April; so that is
8 Easter week -- or the week after Easter.
9 We shall then sit through. There are various UN holidays - and
10 we'll see that the amici get copies of this - there are various holidays
11 during the spring and summer, mostly national holidays here, but they are
12 also taken by the Tribunal.
13 The recess will take place in August. It's not certain yet
14 whether it will begin on the 5th or the 12th of August. It depends on
15 arrangements being made here. But it will be for a period of three weeks
16 beginning on either the 5th or the 12th, and that matter will be resolved
17 as soon as possible.
18 There will be a Plenary, I'm reminded, in July. The 10th to the
19 12th of July is the Plenary, so the Trial Chamber will not be sitting
20 those days.
21 Turning to the hours of sitting. The hours which have been
22 scheduled for this Trial Chamber are in the mornings. As you all know,
23 the Tribunal will be sitting in each courtroom two trials from February,
24 which means that either the trials sit in the morning or they sit in the
25 afternoon. And we have been allocated the mornings between 9.00 and
1 1.45. And it may be convenient if I deal with the hours so that people
2 will know what they are. We propose to sit between 9.00 and 10.30 each
3 day, take a break 10.30 to 10.50, sit again 10.50 to 12.15, a break at
4 12.15 to 12.35, and the final session 12.35 to 13.45, 1.45. Those hours
5 may be modified occasionally on Fridays to finish rather earlier.
6 Mr. Nice, unless you want to raise anything else about that, I
7 propose to turn to the amici.
8 MR. NICE: Yes. There is one thing that I'm reminded by your
9 dealing with the timetable to raise. Following discussions with the
10 Victims and Witness Unit who are, of course, faced with preparing five
11 trials or six trials at the same time, it's become clear that we're going
12 to have to - not a very attractive word - batch our witnesses. They're
13 only going to be brought up on one day, and they're going to be returned
14 on a single day. It's not possible to have individual flights on a daily
16 We're going to work out what we think is the best batching
17 arrangement. It will probably be in on a Tuesday and out on a Thursday or
18 Friday with an overlap for witnesses to be prepared and so on, but
19 probably be all in on a Tuesday and out on a Thursday. It's always very
20 undesirable for witnesses to be kept here too long. We may find ourselves
21 either running short, which we hope not, or pressing the Chamber perhaps
22 to accommodate witnesses in order that they can get out on time, because
23 if they miss one plane, they'll have to wait a whole week for the next
24 return flight.
25 JUDGE MAY: Yes. Thank you.
1 I turn next to the amici. The Scheduling Order of the 4th of
2 January, Mr. Kay, invited you to address the Trial Chamber as to whether
3 there were any extensions to your brief, as it was called, which you
4 considered appropriate. If there are, we will certainly hear you on that
5 topic, and then there are some matters which I want to mention in relation
6 to that.
7 MR. KAY: And I take that Your Honour is referring to the order of
8 our appointment where specific duties were outlined for the amici in the
9 order of the Court of the 30th of August of 2001. It's an order we
10 frequently looked at, as the Court knows, during the execution of our
11 duties to date, and we cannot think at this stage of any refinements that
12 occur to us that would be possible within the terms of our appointment.
13 JUDGE MAY: The Trial Chamber has had time to reflect on this, and
14 there are two areas where we would be grateful for your assistance. I
15 shan't invite you to comment on them now, unless you wish to do so.
16 The first is to draw the attention of the Trial Chamber to any
17 defences, for example, self-defence, properly opened to the accuse on the
18 evidence. And the second, more specifically, is to make submissions as to
19 the relevance, if any, in this trial of the NATO air campaign in Kosovo.
20 Mr. Kay, we will -- we have in mind to extend the order. It would
21 obviously be an extension to cover those matters. It may be that during
22 the trial, other matters will emerge on which your assistance would be
23 asked by the Trial Chamber. But of course there is a very general
24 provision for you to assist on any matters which you think appropriate to
25 secure a fair trial, as I remind you.
1 MR. KAY: In relation to both those matters, I can tell the Court
2 that we had included them under that general provision. And in our
3 strategy document, we have specifically considered both the first matter
4 raised by the Court as well as the second matter which was raised by the
5 accused himself in his address to the Court of last year, and we've
6 included that within one of those areas that we're concerned with in
7 relation to the Rule 68 disclosure.
8 So both matters have in fact been in our mind, and we have no
9 objection to them being specifically added to the order of the Court.
10 JUDGE MAY: Thank you. Are there any matters that you wish to
11 raise or any of your colleagues?
12 MR. KAY: Yes. It's in relation to the Rule 15 bis power of the
13 Court which Your Honour has said would be applied on the 21st and 20th of
14 February. In our judgement, the Court should wait until the evidence has
15 been reached before exercising that power. We don't know what position
16 the evidence will be in on the 19th of February, the day before, or any
17 preceding date, and we advise the Court to hold back from making such an
18 order at this stage which it might not be in the interests of justice
19 appropriate, which is the criteria under Rule 15 bis (A)(ii).
20 JUDGE MAY: We'll certainly have that in mind, and we'll delay
21 making the order until we see what the position is. But that's what we
22 have in mind is to make the order.
23 MR. KAY: We take that, and the Court will no doubt hear any
24 submissions from us as appropriate when that stage is reached.
25 JUDGE MAY: Yes.
1 MR. KAY: I've got nothing further to raise. I think
2 Mr. Tapuskovic has something to raise.
3 JUDGE MAY: Yes, Mr. Tapuskovic.
4 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honour. I shall
5 be brief, Your Honours. I merely wish to indicate one point. I
6 understand what Judge May said a moment ago when he said that we're not
7 going to have to or indeed be able to deal with any historical studies of
8 the problems that came before all this. I know that in certain other
9 cases, a great deal more attention was paid to issues of that kind, more
10 than necessary. But I do feel that the historical framework which is
11 encompassed by the indictment and -- which is a period of 20 years, which
12 means from 1980 to 1999 -- is too short a space of time for you to be able
13 to look at all the problems that caused the events in 1999.
14 So with all due respect to the Trial Chamber that we should not go
15 in-depth and be too broad, we as the amici curiae would have to inform the
16 Trial Chamber with the historical background over a greater time span and
17 what it was that ultimately led up to the catastrophe that we're dealing
18 with. And I do indeed believe that this would be of great assistance to
19 the Trial Chamber for it to be able to grasp the problem better, because
20 what did happen in Kosovo finally is the product, the end product of
21 something that is rooted far back in history. But, of course, I don't
22 propose that we go that far back in history, but we will have to go back
23 to the Second World War and I think that would be useful, and we should
24 inform and brief the Trial Chamber with certain facets of that question.
25 Thank you.
1 JUDGE MAY: Mr. Tapuskovic, it may be helpful then if you were to
2 indicate in writing to us at as early a stage as possible the matters
3 which you think are relevant so that we can make a judgement about it and
4 so the Prosecution could be informed.
5 I understand what you say, and I had not intended to suggest any
6 sort of ruling. The only point I have in mind is there must be a limit
7 to the amount of history which we can hear, and we must be bound strictly
8 by the rules of relevance. But it may be that there are other matters
9 which you want to raise perfectly legitimately.
10 So could you put into writing for us briefly what you consider the
11 parameters of relevance to be so we can consider that, and the Prosecution
12 can have it, too.
13 MR. TAPUSKOVIC: [Interpretation] Thank you. That was precisely
14 what I had in mind. Thank you.
15 JUDGE MAY: Yes. Unless there are any other matters that the
16 amici want to raise, I turn now to the accused.
17 Mr. Milosevic, we've dealt with the other matters. The first
18 matter I want to deal with in your case is that you must be told of the
19 procedure which will be followed at trial, and what I propose to do is
20 read out to you now the form that the trial will take so you can
21 understand that. And the procedure will follow this form, this
22 sequence: At the outset there will be opening statements. The
23 Prosecution will make an opening statement. The accused then may, if he
24 so wishes, make a statement. Any such statement is not under solemn
25 declaration and is not subject to questioning.
1 There then follows the presentation of the Prosecution case. The
2 Prosecution calls witnesses and presents evidence. The examination of
3 witnesses follows this order: examination-in-chief by the Prosecution,
4 cross-examination by the accused, cross-examination by one of the amici
5 curiae, and re-examination by the Prosecution. It should be added in this
6 connection that cross-examination is subject to the control of the Trial
7 Chamber, is limited to the subject matter of the evidence in chief,
8 matters affecting the witness's credibility or relevant to the case of the
9 cross-examining party, and only with the leave of the Trial Chamber may it
10 deal with other matters.
11 At the close of the Prosecution case, the accused may file a
12 motion for judgement of acquittal, and the Trial Chamber must acquit the
13 accused on a charge if there is insufficient evidence to sustain a
15 There then follows the presentation of the Defence case. The
16 accused may make an opening statement, call witnesses and present
17 evidence. He may appear as a witness in his own defence. All witnesses,
18 including the accused, will be subject to cross-examination by the
19 Prosecution and may be cross-examined by one of the amici curiae. If they
20 are cross-examined, the accused may re-examine them.
21 Rebuttal and rejoinder evidence follows. The Prosecution may call
22 evidence in rebuttal of the defence. The accused may call evidence in
23 rejoinder, and the Trial Chamber may call witnesses.
24 There then follows the closing arguments. The parties and amici
25 curiae file final written briefs. The Trial Chamber hears closing
1 arguments by the Prosecution, the amici, and the accused.
2 After the completion of the case, the Trial Chamber retires for
3 deliberations, and the judgement will be announced in public on a date to
4 be notified.
5 This procedure will be put into writing. A copy will be given to
6 the accused, and it will be available to the public.
7 Mr. Milosevic, the next matter concerns your representation. You
8 have, as we have said before, the right to represent yourself, but we
9 would reiterate that you should again consider being represented by
10 counsel, given the complexity and gravity of this case.
11 In any event, the accused will have to consider whether he wishes
12 to call witnesses or obtain documents and how this is to be done. In this
13 connection, the Trial Chamber will give what assistance it can in the
14 calling of witnesses. We understand that telephone calls are available to
15 the accused. However, if you would like the assistance of an
16 investigator, one could be provided upon request.
17 Meanwhile, Mr. Milosevic, you should consider what witnesses you
18 wish to call, with the proviso, of course, that they must be relevant.
19 And I would add this, that the earlier the Trial Chamber is informed, the
20 easier it will be to make arrangements to secure the attendance of
22 Mr. Milosevic, you've heard that. Now, are there any matters that
23 you wish to raise in relation to your trial and what's been said today?
24 THE ACCUSED: [Interpretation] Precisely with respect to what has
25 been said today, everything that we have heard indicates that under the
1 aspects of a trial, an operation is under way to reverse the scene and the
2 culprit and accused, and all this is geared towards a construed
3 justification for the crimes committed during the NATO aggression on my
4 country and my nation.
5 Even the indictment represents proof that what I say is true, that
6 is, further evidence of it, because all the alleged misdeeds committed in
7 conformity of that indictment by the armed forces of Yugoslavia, which I
8 had the honour to be at the head and command, were precisely put into a
9 time framework which is the time framework during which the NATO
10 air campaign and aggression against my country was committed.
11 It is quite obviously the intention to explain how those who
12 defended their families, who defended their children and their thresholds
13 and homes and home country are criminals, are evil people, whereas those
14 who travelled thousands and thousands of kilometres to destroy their
15 houses in the course of the night and to kill innocent people and to
16 destroy maternity wards, hospitals, bridges, railways, that those are the
17 people who, in cooperation with the Albanian terrorists, are responsible
18 for the vast number of victims and for enormous material damage. And with
19 this reversal of thesis, it would appear that they are the good guys and
20 that they should be given the support of international public opinion.
21 To make this absurdity any greater --
22 JUDGE MAY: Mr. Milosevic, I have already outlined the way in
23 which the trial will be conducted. You will have your opportunity to put
24 your defence in the way which I have described, but now is not the time to
25 do it. It's not the time for speeches.
1 What we're considering is simply the format of the trial and the
2 procedure which will be followed. Now, is there anything you want to say
3 about that? As I say, you will have your opportunity to make your case
4 when the trial starts, and that's the right time to do it, not now. We're
5 not dealing with the substance of the trial. We're simply dealing with
6 the procedure.
7 Now, is there anything you want to say about the procedure?
8 THE ACCUSED: [Interpretation] This is not the first time that I
9 have not been given a chance to say what I want to say, but --
10 JUDGE MAY: You will only be allowed to say -- to make your
11 speeches at the appropriate time during the trial. This, as you've been
12 told, is not the appropriate time. At the moment, we're dealing with the
13 procedure. So confine your remarks to that. When the trial begins, there
14 will be, as I've told you, a time for you to make your statements. Then
15 you can make them and you can make your defence.
16 Now, is there anything you want to say about the procedure or
18 THE ACCUSED: [Interpretation] With respect to procedure, I wish to
19 note that you did not offer a single argument with respect to clear-cut
20 legal facts that I have put forth here with respect to the illegality of
21 this Tribunal which was set up of by a Resolution of the UN Security
22 Council, which does not have any jurisdiction to do so and who was not
23 able to transfer the competencies to anybody. And as legal men
24 yourselves, you know that you can't transfer rights that you do not
25 yourself possess. So at any rate --
1 JUDGE MAY: Mr. Milosevic, we have already ruled on that, and it's
2 not a matter for further argument.
3 Now, is there anything else you want to say about the procedure,
4 or we will adjourn?
5 THE ACCUSED: [Interpretation] Well, if you're going to limit me
6 to speaking about these questions and the questions of procedure, let me
7 say that by natural definition of each and every Court and Tribunal, a
8 Court is always neutral and unbiased and unprejudiced. And look at this
9 Court. Courts should be impartial but look at this Court.
10 The indictment has been raised according to what the British
11 intelligence service has said. The Judge is an Englishman, the amicus
12 curiae is.
13 JUDGE MAY: Mr. Milosevic, we have listened to you patiently. You
14 have been told a number of times that this hearing is purely to make -- to
15 deal with matters of procedure. You will have a full opportunity at your
16 trial to make your defence and make your statements. That time is not
18 This hearing is adjourned.
19 --- Whereupon the Pre-Trial Conference was
20 adjourned at 12.15 a.m.