Page 25075
1 Monday, 28 July 2003
2 [Open session]
3 [The accused not present in Court]
4 --- Upon commencing at 9.06 a.m.
5 JUDGE MAY: A report has reached us, Mr. Nice, and I hope you too,
6 of the accused's illness in the Detention Unit. A doctor is apparently on
7 his way to see him and we will order a report for this afternoon, but it
8 means that obviously we cannot sit today to do anything substantial by way
9 of business. There are some administrative matters about the Rule 92 bis
10 witnesses which I wish to raise with Mr. Groome.
11 MR. NICE: Certainly.
12 JUDGE MAY: Unless there are any matters that you wish to raise.
13 MR. NICE: No. Apart from administrative matters, arguments on
14 procedural matters whether 92 bis or otherwise could conceivably continue
15 in the absence of the accused once Mr. Kay is here i.e., tomorrow, on the
16 following basis, that the accused declines to participate in procedural
17 arguments save to repeat his particular position on all witnesses being
18 available for cross-examination, and in those circumstances, it might,
19 were there other arguments to be deployed, be possible to deal with them
20 contingent on the basis of his having further observations to make when
21 he's reviewed either the transcript or a video of proceedings conducted to
22 whatever extent possible in his absence. That's the only way we can think
23 of of saving time.
24 JUDGE MAY: As far as you're concerned, are these rulings of
25 significance before the recess?
Page 25076
1 MR. NICE: I think the answer is probably yes, because we need --
2 we have only 60 days left by your calculation and we have to make
3 budgeting decisions between categories of witnesses and that's a daily
4 process, so the earlier we get rulings on 92 bis the better.
5 Can I perhaps just say this to assist the Chamber. We don't know
6 whether the accused will be here tomorrow or whether he will be here on
7 Wednesday. The Slovenian interpreters were travelling today to be
8 available tomorrow and Wednesday. I've asked VWU to put them -- or
9 whoever is dealing with them, not VWU, CLSS to put them back to travel
10 tomorrow to be available on Wednesday or Thursday and, again, it's always
11 possible we could put them back tomorrow when we have the up-to-date
12 medical report to travel on Wednesday for Thursday and Friday. So we've
13 got that degree of flexibility with the interpreters for the witness
14 Kristan.
15 It seems on our witness list the witnesses we should dispose of at
16 this week, if at all possible, B-174 who, I think, will come first subject
17 to whatever the position of Kristan is. B-174 should really come first
18 because particular security concerns. It may be here or in private
19 session Mr. Groome will be able to tell you about that. And the witness
20 Erdemovic is the other witness who should be heard if at all possible this
21 week and I'm asked to remind you that he has protective measures for face
22 and voice distortion, but that he will of course be testifying under that
23 name, the name I've given, which is his name at the time, not under any
24 other name.
25 That's probably all I can help you with at the moment. The Court
Page 25077
1 has --
2 JUDGE MAY: Is there anything we should know about the witness you
3 mentioned? You said in private session.
4 MR. NICE: I think Mr. Groome can deal with that better. But the
5 Court also indicated last week that it would be trying to find an extra
6 session, as it were, somewhere this week, and I know we lost another
7 session on Friday. I would realise that seeking more time may be in
8 conflict with any sensitive medical condition of the accused, but if the
9 Court's able to give us any indication of whether it had provisionally
10 planned to make a session available on maybe Wednesday afternoon or
11 Thursday afternoon, that will help us do with our provisional planning,
12 which of course involves both sending witnesses become and keeping enough
13 witnesses here.
14 JUDGE MAY: The answer is we have not considered it at the moment,
15 but no doubt it is something we can consider and it rather depends on what
16 happens with the medical condition of the accused.
17 What --
18 MR. NICE: I should also have told you the part-heard witness
19 whose position I think you considered on Friday has to go back today so
20 that his evidence can only be concluded on some subsequent day but at
21 least he drops from this week's list.
22 JUDGE MAY: Yes.
23 MR. NICE: Insofar as that save us problems. It just becomes very
24 difficult and of course very expensive to keep witnesses around but there
25 is no alternative for it. We will send them back as rapidly as we can
Page 25078
1 consistent with ensuring that we can make whatever use of time at maximum
2 is available to us. Unless I can help further.
3 JUDGE MAY: No. But perhaps Mr. Groome could tell us about the
4 other witness in private session, please.
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24 [Open session]
25 THE REGISTRAR: We're in open session.
Page 25081
1 JUDGE MAY: There plainly is a limit to what we can do in the
2 absence of the accused but we can at the very least consider the
3 Prosecution position in regard to these various witnesses. I'm going to
4 begin, Mr. Groome, with the Bijeljina, Bratunac, Zvornik witnesses who
5 remain, beginning with 1058, who is from Zvornik.
6 MR. GROOME: Your Honour, with respect to Witness 1058, the
7 Prosecution's position, and the amici have agreed, that it is not
8 proximate to the acts and conduct of the accused. This particular
9 witness's evidence is cumulative to Witness B-1237 with respect to one
10 particular killing in that this opinions identifies the same victim as the
11 Court has heard live testimony about.
12 There is a reference to the involvement of one of Arkan's Tigers
13 in that killing. It is the Prosecution's position that cross-examination
14 isn't essential, although we would recognise that the Court may very well
15 disagree upon reading the statement and think that it might be appropriate
16 for this particular witness to appear for cross-examination.
17 JUDGE MAY: Next is --
18 THE INTERPRETER: Microphone, please.
19 JUDGE MAY: 1613.
20 MR. GROOME: Your Honour, given the nature of this, this is a rape
21 victim, I'd ask that we discuss this in private session.
22 JUDGE MAY: Yes.
23 [Private session]
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11 [Open session]
12 THE REGISTRAR: We're in open session.
13 MR. GROOME: Your Honour, with respect to this witness, once again
14 it's the Prosecution's position, and the amici confirm this position, that
15 it is -- the evidence in this statement does not go to the acts and
16 conduct of the accused. I would note for the Chamber that this witness's
17 evidence is strikingly similar to that of Mr. Fadil Bajanovic who
18 testified regarding the Kozluk deportation, but I would also point out,
19 Your Honour, that there are substantial references to both JNA and Arkan's
20 and Seselj's men in a rather different light than portrayed by other
21 witnesses and perhaps it would be -- the Prosecution would concede that it
22 would be appropriate to have this witness appear for cross-examination.
23 JUDGE MAY: Yes. 1462.
24 MR. GROOME: Your Honour, this particular witness again does not
25 go -- his statement does not go to the acts and conduct of the accused and
Page 25083
1 is cumulative. Mr. Kay, in his submission, agrees with that position.
2 Once again, it is cumulative of the testimony the Chamber has heard about
3 Fadil Bajanovic and it is the Prosecution's position that when the Chamber
4 engages in the analysis recommended by 92 bis (A), this is one of those
5 witnesses that falls clearly on the side of the spectrum favouring the
6 submission of such evidence purely in written form without
7 cross-examination. So it is the Prosecution's position that this witness
8 should not be required to appear for cross-examination.
9 JUDGE MAY: 1702.
10 MR. GROOME: Once again, Your Honours, the Prosecution's position
11 that this statement does not go to the acts and conduct of the accused and
12 is purely crime base evidence and that position is agreed to by the amici.
13 It is the Prosecution's position that there should be no
14 cross-examination. This is a straightforward witness that is -- gives
15 cumulative evidence of the events surrounding the takeover in Bratunac
16 municipality, and I would remind the chamber of two witnesses of which
17 this testimony is cumulative of and those are two unprotected witnesses by
18 the name of Gusic and Becirovic. They were 92 bis witnesses that appeared
19 for cross-examination.
20 JUDGE KWON: Does he not mention the involvement of JNA units?
21 MR. GROOME: Yes, he does, Your Honour. The Prosecution's
22 position is that the particular issues as they relate to the JNA were
23 adequately cross-examined with those other two witnesses.
24 JUDGE MAY: 1499.
25 MR. GROOME: With respect to this witness, Your Honour, it's the
Page 25084
1 Prosecution's position that does not go to the acts and conduct of the
2 accused, a position which the amici agree with. Once again, the
3 Prosecution's position is that it is cumulative evidence of the takeover
4 of Bratunac and of the events that happened just prior to the takeover.
5 In this particular witness's statement, there is no mention of the JNA,
6 and once again, the Prosecution's position is this is another example of
7 the type of statement which clearly falls in within the type of evidence
8 that 92 bis (A) provides for being heard by the Chamber without
9 cross-examination.
10 JUDGE MAY: I turn to the other two applications concerning
11 Visegrad and Brcko. Yes. We will take Brcko first. Do you wish to deal
12 with this in private session?
13 MR. GROOME: Yes, Your Honour.
14 [Private session]
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15 [Open session]
16 THE REGISTRAR: We're in open session.
17 JUDGE MAY: Yes, Mr. Tapuskovic.
18 MR. TAPUSKOVIC: [Interpretation] Your Honours, I think that I
19 could be of assistance. Perhaps I could state our views in relation to
20 our general position in this regard.
21 JUDGE MAY: Yes. Do you want to deal with matters -- if you're
22 dealing with matters which were dealt with in private session, then we
23 should be in private session. So those were the last two applications.
24 In relation to the first application, you can deal with that in open
25 session.
Page 25091
1 MR. TAPUSKOVIC: [Interpretation] I would like to start from
2 Witness 1058, please, from the very beginning. This is the first witness
3 that we talked about, because these are our general principles, and I
4 believe that even in the absence of Mr. Kay, I can state our views with
5 regard to some of these matters so you could rule as soon as possible.
6 JUDGE MAY: Yes.
7 MR. TAPUSKOVIC: [Interpretation] As far as Witness 1058 is
8 concerned, that is the first witness we talked about, the Prosecution said
9 that Arkan's men are mentioned there too. So therefore, I think that
10 cross-examination would be indispensable.
11 As for Witness 1630, I believe that we can agree that Rule 92 bis
12 (A) can be applied because this is a person who lived through a trauma and
13 there is no need for this person to go through this trauma again and to be
14 exposed to cross-examination.
15 As for Witness 1521, we see again that the witness speaks of
16 Arkan's and Seselj's men. So in view of our general principles, I believe
17 that this witness should be cross-examined.
18 Then Witness B-1462. We accept the arguments of Prosecution.
19 Cross-examination is not needed in this case.
20 Then Witness 1702. Reference made to the participation of the JNA
21 there and we believe this witness should be cross-examined.
22 Then 1499. We agree that this should be done according to rule 92
23 bis (A) and that cross-examination is not required. Then we move on to
24 Brcko, 1407. Arkan's men are mentioned there.
25 JUDGE MAY: Yes. We'll go to private session.
Page 25092
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8 [Open session]
9 THE REGISTRAR: We're in open session.
10 JUDGE MAY: We'll consider the various matters raised and sit
11 again when the accused is fit enough.
12 MR. NICE: Can I inform the Court that the extended complete
13 witness list we've been preparing will be available this afternoon. There
14 may still be some changes that will have to be made in relation to the
15 Sarajevo witnesses but we're trying to get it into as final shape as we
16 can. Amended versions of the fill-box documents will be available for
17 Croatia and Bosnia by the end of the week. I think probably Kosovo is
18 sufficiently unchanged from the earlier versions that there may be no
19 utility in serving that. And I think also I should have a chronology
20 available. All of that will be served in hard copy and electronically.
21 I don't see much need for time to be spent this week or sought to
22 be spent on administrative matters even the accused is fit. Far better we
23 get on in evidence, but I just take five minutes at some stage to identify
24 some forthcoming issues that we can argue and discuss in September.
25 JUDGE MAY: Very well. We will adjourn.
Page 25096
1 --- Whereupon the hearing adjourned at 9.53 a.m.,
2 to be reconvened on Tuesday, the 29th day of July,
3 2003, at 9.00 a.m.
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