1 Thursday, 17 June 2004
2 [Pre-Defence Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 10.01 a.m.
6 JUDGE ROBINSON: Mr. Nice, I'm not going to -- I'm not going to
7 ask for appearances. We're all familiar with ourselves.
8 This is a Pre-Defence Conference, and it is held pursuant to Rule
9 73 ter. Its purpose is to enable the Chamber to make decisions for the
10 management of the Defence case. The measures to be adopted are designed
11 to promote expeditiousness in the presentation of the Defence while
12 ensuring fairness to the accused.
13 Let me tell you how we will proceed today. The Chamber has
14 received submissions from the Prosecution and the amici. We also have
15 submissions made by the accused at the Rule 15 bis conference on March
16 25th. The Chamber itself has not been bereft of ideas. From these
17 sources, I have made a list of issues to be dealt with. I will raise the
18 issue, generally indicate how the Chamber proposes to deal with it, and
19 then invite comments from the parties and the amici. On occasions, the
20 comments may precede the decision. What I do not want is for parties to
21 be raising issues at will, in any order.
22 When I've gone through my list, if there is any matter that has
23 not been covered, parties will be free to raise those matters.
24 Principally, I'll be working from the submissions made by the
25 Office of the Prosecutor, and the first one is covered in paragraphs 8 to
1 13 of the submission, and the submission there -- Mr. Kay, is there a
3 MR. KAY: Not now.
4 JUDGE ROBINSON: Thanks. The Prosecution's submission there is
5 that a limit should be set on the number of Defence witnesses. The
6 Chamber has considered this matter carefully. It will not set a limit on
7 the number of witnesses. Limitations on the number of witnesses will be
8 achieved in the following way: Firstly, the Chamber will enforce the
9 order it made earlier that the Defence case is confined to 150 sitting
10 days. The second way in which there will be a limitation on the number of
11 witnesses is, of course, by the ordinary application of the rules of
12 evidence, and we have in mind the rules relating to relevance. Evidence
13 will obviously not be admitted unless it is relevant.
14 But while not imposing a limit on the number of witnesses, I would
15 say to you, Mr. Milosevic, that you should bear in mind that in the period
16 of 150 sitting days, which is the period that the Prosecution took to
17 present its case, it called approximately 300 witnesses, but then, they
18 utilised the procedures under 89(F) and Rule 92 bis, which allowed the
19 introduction of witness statements. So you would want to take that into
21 On the question of relevance, I observe, Mr. Milosevic, in your 65
22 ter submission a large category of witnesses who it is said will testify
23 about their detention. That is a matter which the Chamber will monitor
24 closely as to the relevance of the evidence to be given by those
1 Another means at the disposal of the Chamber to limit the number
2 of witnesses is to ensure, as far as possible, that evidence is not
3 cumulative, overly cumulative. This is a matter for the exercise of
4 discretion, but evidence should not be presented in a manner that is
5 overly cumulative, and the Chamber will monitor that quite closely.
6 I want to say generally that the management of the Defence case is
7 an ongoing exercise and will be subject to review as the case progresses.
8 The next matter on my list is the witness order, paragraphs 20 to
9 26 of the Prosecution's submission.
10 Mr. Milosevic, I want you to understand very clearly that we will
11 require you to present the evidence in an orderly manner, indictment by
12 indictment. We, of course, take into account that some witnesses will be
13 overlapping, but what we don't want is for you to start with witnesses,
14 say, from Kosovo today and then the next day you jump to Croatia and the
15 next day to Bosnia. So apart from overlapping witnesses, witnesses are to
16 be presented indictment by indictment. It will be a matter for you to
17 decide, of course, the order in which you wish to present the witnesses in
18 terms of the indictments.
19 The Chamber will require the accused to produce a list of his
20 first 50 witnesses and the likely order in which they will be called. And
21 the accused will also be required to produce a weekly list of witnesses,
22 to be provided on the last sitting day of each week, and this for the
23 following week's hearing. Generally, that will be on a Thursday,
24 sometimes on a Wednesday. These lists must contain the name and the Rule
25 65 ter number of each witness as well as the estimated time the witness
1 will take in evidence in chief.
2 The third matter, the names of witnesses, paragraphs 14 to 18 of
3 the submission. The Chamber has already ordered the accused to produce
4 the names of the witnesses on his 65 ter list to the Chamber, and except
5 for those identified by him as requiring delayed disclosure protection, to
6 the Prosecution and the amici.
7 The deadline for providing that material has already passed, Mr.
8 Milosevic, so this is a matter that you must attend to immediately.
9 Mr. Milosevic, I want to ask you, how many of the witnesses on the
10 witness list will you require delayed disclosure for?
11 THE ACCUSED: [Interpretation] I can't give you exact number right
12 now, Mr. Robinson. You have received, or at least I hope you
13 have --
14 JUDGE ROBINSON: I'm not getting any translation.
15 THE INTERPRETER: Can you hear the English channel?
16 JUDGE ROBINSON: Start again. Yes.
17 THE ACCUSED: [Interpretation] Can you hear the English channel
18 now? Because I seem to be getting the English channel.
19 As I was saying, you have received what you required as regards
20 disclosure of the names, and I assume that you received over 1.300 names,
21 close to 1.400, in actual fact. So it's not a question of speaking about
22 any protection but the fact that it was impossible in this short space of
23 time for me and my associates to conduct interviews with the witnesses who
24 wish to testify. And they should tell us already now whether they agree
25 to having their names disclosed at all.
1 So when I mention the figure of 1.300 or 1.400, the names that you
2 received, means that we have talked to all those witnesses and that they
3 agree that their names be disclosed. Of course, only to the Trial
4 Chamber. Now, what remains to be done is to finish off the portion of
5 that job, and as you are well able to conclude for yourselves, linked to
6 what you said a moment ago, there are restrictions and limitations. So if
7 you stand by that, that would mean -- and the question arises of a new
8 selection which will have to be made. I would have to undergo a new
9 selection, and this is a very difficult thing to do. But I shall go back
10 to that issue, because you said that you would take the issues one by one,
11 and when it comes up on the agenda in the course of today's day, I shall
12 take the floor again. Or if you would like me to do so, I can go ahead
13 and tell you straight away.
14 JUDGE ROBINSON: No. Wait until we come to that issue
15 specifically. What you're saying is that you need more time to identify
16 the witnesses in respect of whom you would want delayed disclosure. You
17 have not been able to interview all the witnesses.
18 Do you have an idea as to how long it will take you to complete
19 that exercise?
20 THE ACCUSED: [Interpretation] I'll need a few more weeks to finish
21 that job and not to go on with the other business in hand and all the
22 other preparations I need to get through, but we'll come to that in due
24 JUDGE ROBINSON: The other matter that has been raised by the
25 Prosecution in relation to this is that the accused should supply the date
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13 English transcripts.
1 of birth of each witness on his 65 ter list, and the Trial Chamber will
2 require the accused, where possible, to provide this information.
3 As a general comment, I wish to observe that what the Prosecution
4 did in terms of the provision of information to the accused is not
5 necessarily a correct basis for determining the accused's
6 responsibilities, because the Prosecution has obligations under the Rules
7 which the Defence does not have. Conversely, the Defence has rights which
8 do not apply to the Prosecution. The Chamber does, however, have an
9 inherent power to manage the proceedings.
10 This brings me to the next matter, which is in paragraph 19 of the
11 Prosecution's submission, and that is a request that the accused be
12 required to produce more detailed witness summaries.
13 In respect of this matter, I'm going to invite submissions from
14 the -- from the parties and the amici very briefly. It's an important
15 legal question as to how far one can go in requiring more details from an
16 accused person at this stage of the proceedings. The Prosecution has --
17 the Defence, rather, has a right is to remain silent, not to disclose its
18 case, and one has to be careful that this right is not jeopardised by the
19 provision of what is called "more detailed summaries." But it's an
20 important legal issue, and I'd like to hear briefly, very briefly, from
21 the parties on this issue. I'm going to start first with Mr. Milosevic.
22 THE ACCUSED: [Interpretation] The point of everything that I wish
23 to do here is this: It is to present the truth. And you know full well
24 that the most terrible accusations have been uttered here; and at the same
25 time I know full well, and not only me but others, too, that is to say the
1 whole of the public in Serbia, that the most flagrant lies have been
2 spoken here as well. And the only means to fight that is to present the
3 truth, and I should like here, before the public, to prove that these are
4 all false indictments, false accusations against Serbia, against the
5 Federal Republic of Yugoslavia, and against myself personally, against
6 something that is usually referred to here as Serb forces, the army, the
7 police, the church, the academy of arts and sciences, and many
8 historical --
9 JUDGE ROBINSON: Mr. Milosevic, I am stopping you. Please attend
10 specifically to what I've asked you to do, which is to make a very brief
11 submission on the Prosecution request for more detailed summaries. Just
12 that issue. We don't want a speech. If you don't have anything to say on
13 that specific legal issue - it's a legal issue - then say so and then we
14 can move on to the Prosecution and then the amici. Just that issue and
15 that issue alone, Mr. Milosevic.
16 THE ACCUSED: [Interpretation] Very well, Mr. Robinson, but it was
17 precisely you yourself who said that that is not an obligation on my part.
18 Of course, you can say that everything is an obligation, but I see
19 absolutely no reason for me to prepare summaries for the testimony of
20 witnesses and to provide you with that in advance, especially if we bear
21 in mind not only the legal reasons, the ones that you have raised, but
22 also the time that this would require. And you even mentioned a moment
23 ago that you're now introducing and requiring me to give you the dates of
24 birth for each individual witness. I just didn't go about collecting
25 those kinds of facts because I didn't consider them to be important.
1 Everybody is of age, they are all adults, and it never occurred to me that
2 each witness should be provided with the time and date of his birth, which
3 means that with 1.500 or 1.600 repeated contacts, we would have to come by
4 a date of birth.
5 Now, as far as the summaries are concerned, I consider that
6 infringes in all respects upon my rights, this obligation on me to provide
7 the opposite side with summaries of the witnesses I intend to call.
8 So briefly speaking, in the list that I provided you with, I have
9 made a note of what the witness is going to testify about, whether
10 personal knowledge, events, something else. Mostly it is the personal
11 knowledge of the witnesses with respect to certain events and certain
12 circumstances that prevailed, and everything that I consider to be
13 relevant. So I deem that to be sufficient as information provided to the
14 other side.
15 JUDGE ROBINSON: Thank you, Mr. Milosevic. I understand you to be
16 saying that you find it legally objectionable, and as a matter of
17 practice, unduly burdensome. Might I also tell you that in relation to
18 the date of birth of each witness, what we will require you to do, and I
19 said this quite clearly, is to provide this where possible.
20 Mr. Nice.
21 MR. NICE: The Chamber referred to our filing. It is, of course,
22 a confidential filing. The passages that deal with this topic are found
23 on paragraph 19. I needn't repeat them. We have proposed certain general
24 patterns for summaries that might help the Chamber as well as accord with
25 the law and practice of the Chamber.
1 The law is really to be found, I think, only at 65 ter (G) where
2 the nature of the sort of summary that might be provided is dealt with.
3 It simply refers to a summary of the facts upon which each witness will
4 testify, to some degree qualifying that by saying the Defence is also
5 obliged to identify the points in the indictment to which the witness will
6 testify, and it's perhaps hard to conceive of that being done sensibly
7 without some material being put on the barest of summary.
8 In addition to that, the Chamber may think that it can only
9 perform some of its functions under 73 ter, for example, dealing with the
10 estimated length of examination-in-chief and so on if it has a reasonable
11 summary of proposed evidence from the witnesses the Defence is going to
13 JUDGE ROBINSON: Mr. Nice, the question is this: Whether the
14 accused has not discharged his obligation under 65 ter (G) by providing
15 the material that he has provided as a summary of the facts. I understand
16 you to be saying that you want more detailed information. In which case,
17 what you would have to consider is whether the requirement for more
18 detailed information may not infringe or come close to infringing the
19 accused's right not to disclose his case.
20 As you know, the practice in the Tribunal is that an accused is
21 not required to produce witness statements, and the more detail you
22 require, the closer you come to requiring something akin to a witness
23 statement. So that is really the issue, and I would be interested to
24 discover whether past practice is in support of this, the provision of
25 more detailed summaries. Have you done any investigation into the
1 Tribunal's practice?
2 We found one case in which there was a request for something akin
3 to witness statements, and the Trial Chamber, of course, disallowed it,
4 pointing to the fact that it is not allowed by the Rules, but did allow
5 the provision of a summary.
6 There was another case which we found, going far back, before the
7 65 ter (G) Rule was drafted, which went the other way. And this is why we
8 have invited submissions on it, to try to ascertain what the practice is,
9 and indeed it's a matter for the Chamber to determine what the law is. I
10 mean, the practice is one thing, but we have to decide what the law is and
11 what the law is that we will apply.
12 MR. NICE: On the practice, nothing beyond what Your Honour has
13 already identified, but if more comes to me in the course of the morning,
14 I'll bring it to your attention.
15 On the law, the law is, if I can say, thinly drafted. There's
16 only limited material to guide us, and I think I've taken you to it.
17 There's a summary and there's the points in the indictment, but that
18 description of a summary should be seen in the context of the powers that
19 you have to exercise under 73, and you can only exercise those powers if
20 the summary is of some value and gives a sufficient degree of detail to
21 enable you to exercise those powers.
22 JUDGE ROBINSON: Yes. But remember that the Rules have to be read
23 consistent with the Statute.
24 MR. NICE: Of course.
25 JUDGE ROBINSON: It's one thing for the Rules to say a summary,
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13 English transcripts.
1 but that does not -- would not in my view, speaking for myself, allow a
2 Trial Chamber to require the kind of details that would be tantamount to
3 requiring the accused to disclose his case.
4 MR. NICE: Well, Your Honour, we would respectfully disagree to
5 this extent: The degree of summary that we have suggested is hardly
6 disclosing a case in detail, but in some cases it would be, but would
7 bring such measures of efficiency to the conduct of the case as to make
8 sense of application of these Rules without disabling the accused in any
9 way from the proper exercise of his rights. Plus the fact, of course,
10 that the Chamber is always in a position, as it's made clear -- or indeed
11 as Your Honour has made clear in your separate opinion in the recent
12 decision, the Chamber is always in a position to put out of its mind
13 material that it may have read, being, of course, a Chamber composed of
14 professional Judges, if in due course that material isn't reflected by
15 evidence or otherwise comes to nothing.
16 So that in the competing interests of the accused's right not to
17 disclose his case in detail and the Chamber's duty to manage the case
18 efficiently and indeed to exercise the powers that it has under 73, we
19 would invite you to say that a great deal more is required of the accused
20 than has been provided by these extremely exiguous summaries, although
21 something of course falling considerably short of the full witness
22 statement that we recognise is not our entitlement on the authority of
23 these Chambers.
24 If there's anything else in the practice -- I have no doubt many
25 people are watching these proceedings who will be able to add to
1 information presently with me. If there's anything else in the practice,
2 I will draw it to your attention but I'm not aware that there is. I
3 certainly remember, of course, how the Chamber dealt with it in the case
4 of Kordic, as will Your Honour, where the accused were then represented by
5 lawyers and where the summaries were substantially limited at that time.
6 But I don't know that I can add any further to that.
7 JUDGE ROBINSON: Yes. Thank you --
8 MR. NICE: Will Your Honour just give me one minute.
9 [Prosecution counsel confer]
10 MR. NICE: Yes, I'm grateful indeed to the Prosecutor. Your
11 Honour explained to the accused that one of the things that he must not do
12 is bring cumulative evidence. Apart from any other requirements the
13 Chamber may have of him in provision of material so that it can exercise
14 its powers, it will need to have some adequate summary of evidence if it's
15 to rule in advance that evidence may be coming cumulative. And we can see
16 the terrible consequences of the Chamber not being able to deal with these
17 matters in advance; namely, there will be days listed for hearings,
18 witnesses will turn up, because the Chamber doesn't know sufficiently in
19 advance what the witness is going to say, it won't know until he or she
20 starts to speak that the evidence is inadmissible. The Chamber will rule
21 the evidence is inadmissible and days of hearings will be lost.
22 For the proper administration of the case, which is a proper
23 concern of the Chamber, more detail is required than presently provided.
24 JUDGE ROBINSON: Thank you, Mr. Nice.
25 JUDGE KWON: In relation to the summary of the witnesses, I wonder
1 if Mr. Nice or Mr. Kay could answer this question: I just received this
2 confidential witness schedule submitted by the accused just before I
3 entered this courtroom. There we can see some brief summary. My question
4 is whether this summary is identical to that which appears in the 65 ter
5 submission or whether this is a further developed form in terms of
7 MR. NICE: Our understanding - I haven't checked it - is that
8 these are identical with the 65 ter summaries, but no doubt -- I see a
9 nod, so I think we can be clear about that.
10 MR. KAY: It's from the 65 ter (G) submission.
11 JUDGE KWON: Thank you.
12 MR. NICE: I am advised, and will try and check over the break,
13 assuming we go over a break, that in two cases more detailed information
14 has been required of Defence. One is the Tuta, Stela case and one is the
15 Blagojevic case. I will attempt to obtain, over the break, examples of
16 the summaries that were required of accused in those cases.
17 JUDGE ROBINSON: Thank you, Mr. Nice. Mr. Kay.
18 MR. KAY: Yes, Your Honours, looking at the Rules, the point has
19 to be made right at the start that the word "summary" is used rather than
20 the word "statement," or even "proposed testimony." And this is a
21 resource issue for the Defence as much as anything else. The time taken
22 in writing elaborate summaries containing all the facts and details,
23 albeit not even in a narrative form that you would get in a statement, is
24 an undertaking that takes a great deal of time and resources that Defences
25 generally don't have, and in my experience, they are tasks that are just
1 too far to expect from the resources of a Defence team during a trial.
2 It's easy for the Prosecutor: They're based in the building; they have a
3 large administration available, many staff available that far exceed those
4 of an accused person, and they can provide more elaborate information in
5 the form of the summaries that we received during the Prosecution case
6 over the last two and a half years of this trial.
7 As for the Defence, Your Honour's rightly noted the privilege
8 there is against self-incrimination, which is a feature of the Rules of
9 the Tribunal. This is information that is required here which does not
10 encroach upon that right of an accused, but in our submission, is an
11 indicator for the Judges who are considering the evidence as to the
12 subject matter the Defence witnesses will be speaking on during the day,
13 and often simple signposts of the nature of the evidence is all that is
14 required. And if the Judges see that there are signposts within the
15 summary that appear to be cumulative of other evidence in the trial, the
16 Judges, of course, can raise this matter with the accused and say, "Well,
17 we have heard a lot about this particular camp or fact, and is this going
18 to be extra to that which we've heard before or is it going to be casting
19 a fresh light that you feel is necessary for considering the Defence?"
20 So with those simple signposts and indicators, in our submission,
21 that is adequate for the purposes of the Rules. The Rules are not
22 intended here that a defendant provides details by which his witnesses
23 could be impeached by the Prosecution, that there could be
24 cross-examination on previous inconsistent statements, that there could be
25 delving into the privileged material of the accused that is held by him or
1 his advisors. It is not intended for that kind of operation. This is
2 merely intended as an indicator as to the issues that will be dealt with
3 by the witness.
4 We must remember the fundamental principles that we have here
5 governing the Rules of the Tribunal, and some of them are not meant to be
6 subverted in any shape or form as they hold good in customary
7 international law, they're recognised by jurisdictions throughout the
8 world, and it is quite clear from the Rules of the Tribunal that that is
9 what is intended.
10 As to practices with -- within other cases, the first case, Tadic,
11 dealt with this issue. There was a ruling in favour of the Defence at
12 that hearing, and the matter came down to being a debate also on dealing
13 with issues of legal professional privilege, to which this issue can also
15 Other cases, there has been surrender of summaries or even
16 statements by the Defence counsel as a way of assisting the other side or
17 the Judges, but that has been on a very voluntary basis, and careful
18 perusal of some of these cases are needed that are cited to make sure that
19 what is being cited as being practice wasn't as a result of compulsion but
20 in fact by Defence concession upon that matter for their own purposes. It
21 may have been that they wished to call a large number of witnesses in the
22 time available and felt that this was an expeditious way of doing it. It
23 all depends on the particular circumstances of the case.
24 JUDGE ROBINSON: Indeed, my understanding is as you have just
25 outlined, that in practice in most cases the information is provided as a
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13 English transcripts.
1 result of collaboration between the Defence and the Prosecution and is
2 done on a voluntary basis. So of course the Chamber will want to examine
3 the cases very carefully to -- to determine the issue.
4 Yes. Judge Bonomy.
5 JUDGE BONOMY: It's a question for Mr. Nice, Mr. Kay, although you
6 may have a comment to make on it. It seemed to me from what you said,
7 Mr. Nice, that your principal concern in this submission is to ensure that
8 the Court has adequate information to manage the Defence case. Your
9 submissions seemed to be confined to that. Now, were I to read paragraph
10 19 of your written submission in the same light, that what you invite us
11 to ask for is such material as we think would assist us in managing the
12 Defence case.
13 MR. NICE: Of course we would find preparation for
14 cross-examination much assisted by more summaries, and that, I think, has
15 been found in other cases, whether by agreement or finding of the Trial
16 Chamber, as a proper matter to underline compulsion of more detailed
17 summaries, but bearing in mind the limitations of the regulatory structure
18 that we have with an accused who is not represented, the bedrock support
19 for more detailed summaries is clearly to be found in the needs of the
20 Trial Chamber to be able properly to manage the trial.
21 I'm not excluding the other purpose as a proper purpose for more
22 detailed summaries, but the principal reason for a summary in this case
23 must be that the Chamber must be able to manage this trial efficiently,
24 and that itself does give rise to a requirement for far more detail than
25 we presently have.
1 JUDGE BONOMY: But it may be said that if that is the fundamental
2 basis for the requirement, that it could not infringe any right to silence
3 or right not to disclose his case that the accused has.
4 MR. NICE: Well, I would adopt that argument and to some limited
5 degree had foreshadowed it in my observations that the Chamber, in having
6 more detailed material, is then able to set it aside and not to take it
7 into account if it comes to nothing and is of no significance either
8 because a witness is not called or indeed because what a witness says is
9 out of line with what may have been forecast in the summary.
10 So I respectfully and gratefully adopt that observation to the
11 extent that it favours the argument that I'm advancing.
12 JUDGE BONOMY: Thank you.
13 JUDGE ROBINSON: Yes, Mr. Kay.
14 MR. KAY: If I could just deal with the paragraph 19 issue, and
15 I'll start on page 10. High-level politically -- political or military
16 witnesses, and it goes on to request specific, specific details of when,
17 in what capacity, for what purpose the witness met with or knew the
18 accused and what was said. Well, in our submission, that is encroaching
19 entirely on what would be necessary for the Trial Chamber, and what it is
20 in fact giving is perhaps a weapon to the armory of the Prosecutor,
21 because that is what the surrender of the disclosure obligations or
22 privileges that the accused have is able to achieve. And this isn't an
23 issue just for the Judges being able to exclude evidence or one side and
24 ignore matters if they're not raised. It is not really a Judge-related
25 issue. Once it's in the public domain and it goes to the Judges, it also
1 goes to the Prosecutor, and it can be then information that they use
2 against an accused and adopt a case in respect of it that is beyond that
3 which would normally be given to them as information.
4 It goes on to say: "Further, more specific details of events,
5 places, significant meetings, and/or persons and/or structures the witness
6 will testify about and details of the basis for the witness's knowledge on
7 these points." So the witness is even being asked to justify in these
8 summaries that to which he is speaking. The witness is being asked to
9 disclose the full tableau of the evidence; the conversation, what took
10 place, way beyond that which, in our submission, is a summary, and it
11 becomes then more of an explanation and then one can see the battlefield
12 developing between the Prosecutor and the witness, "Well, you have this
13 opinion, you have this attitude," and it may well be then a valuable
14 source for cross-examination by them.
15 If we go to the next stage, lower-level members of the military
16 police, paramilitary, or other armed force, specific details of the armed
17 force the witnesses fought in at the relevant time. So not a summary of
18 the evidence to be given but details of the background. So going beyond
19 that which the purpose of the evidence being called by the accused is
20 being put before the Court.
21 Furthermore, specific details of the dates, events, places and
22 persons the witness will testify about and the basis for the witness's
23 knowledge on each point are necessary to determine the relevance of each
24 witness's evidence and to focus the examination on the most important
1 Some of these matters can be dealt with, of course, by the Judges
2 during the course of a witness giving testimony, as has frequently
3 happened during the Prosecution case. One of the Judges have said, "Well,
4 we've covered this matter once before, we've heard this from another
5 witness, let's move on to another subject." It's not something that
6 requires some kind of guidance necessarily before the witness gives
7 evidence. But the background details there are really, again, seeking to
8 find further elaborate details about a particular witness that wouldn't
9 normally be -- be disclosed and isn't relevant, in our submission, for the
10 purposes of Rule 65 ter (G).
11 If we look at Serb victim witnesses, to the extent these witnesses
12 should be included on the list the Prosecution would argue that some
13 should not. Details of the component of the military police,
14 paramilitary, or other armed force the witness fought in at the relevant
15 time should be provided. This is for a Serb victim witness. Details of
16 what they -- what they were doing or what they fought in. How that comes
17 into 65 ter (G) in the usual way, I can't imagine.
18 "In addition, specific details of where the witness was detained
19 (if held in a camp) and the period of the detention as well as specific
20 details of the crimes the witness will testify about, including dates and
21 details of perpetrators should be provided." This is in fact, if you look
22 at each section, amounts to the provision of a statement rather than that
23 of a summary. And I can't stress enough how Defence resources are not
24 available, really, for this kind of detailed analysis in this form during
25 the trial. It would be far too onerous a provision for the accused to
1 comply with.
2 Unless I've got any further --
3 JUDGE ROBINSON: It would no doubt assist the Prosecution in
4 preparing for cross-examination, but your submission would be that the
5 accused has no obligation to provide that kind of information.
6 MR. KAY: That's not the purpose of the Rule at all. This is a
7 case management Rule for the Judges and to ensure that the -- this aspect
8 of the trial runs ahead smoothly rather than providing full-scale
9 disclosure from one party to another. That's not the purpose of the Rule.
10 JUDGE ROBINSON: Thank you, Mr. Kay.
11 Mr. Nice, something briefly?
12 MR. NICE: Just very briefly. I don't know what cases Your
13 Honours were able to find, but in Galic - and I'm grateful to one of my
14 colleagues for bringing this to my attention - Judge Orie identified as
15 the reason for, or the justification for more detailed summaries this:
16 That the right to call evidence which is available to a Defence is
17 associated with duties, and he found, or his Chamber found, that one of
18 the duties is that the Defence should give such 65 ter summaries that the
19 Prosecution is in a position to prepare for cross-examination.
20 I don't know if that's one of the decisions you were able to
21 consider in advance. If not, we can, of course, make it available to you.
22 And I think there are also passages from His Honour Judge Liu's decisions
23 in Blagojevic that we'll make available to you as well.
24 JUDGE ROBINSON: Thank you, Mr. Nice. The Chamber will consider
25 this matter and give its ruling shortly, perhaps later today.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 The next matter that I turn to relates to expert witnesses,
2 paragraphs 27 to 32 of the submission. Pursuant to Rule 94 bis, the Trial
3 Chamber will require the accused to serve on the Prosecution and the amici
4 any expert reports six weeks before the date on which it is anticipated
5 the expert will testify.
6 Mr. Milosevic, may I ask whether you intend to call any expert
7 before the summer recess.
8 THE INTERPRETER: Microphone, please.
9 THE ACCUSED: [Interpretation] Generally speaking, Mr. Robinson,
10 what would suit me is to have a few experts at the beginning of the case,
11 because that would be useful for all in order to understand the entire
12 matter. No doubt I would need a number of expert witnesses in the first
13 wave of witnesses, so to speak.
14 However, as regards experts, I would like to clarify a particular
15 matter with you. That is a question which is in Rule 94 bis. That has to
16 do with expert witness testimony.
17 In relation to testimony of expert witnesses, you have a few
18 things here that do not cause any concern on my part, because the experts
19 that I'm going to call are persons whose competence no one in the world
20 can challenge, truly no one. In terms of their competence, they cannot be
21 compared at all to the experts that were called by the other side.
22 However, I am concerned about this subparagraph (C). So I ask you to give
23 me an answer now so that we could establish this as a rule, because
24 subparagraph (C) says: "If the opposing party accepts the statement of
25 the expert witness, the statement may be admitted into evidence by the
1 Trial Chamber without calling the witness to testify in person."
2 I would like -- it says here, actually, that you can admit this
3 into evidence if the opposing party, this other side there, accepts the
4 statement, that you can decide not to call the witness in person at all.
5 My request with regard to that particular matter is the following: To
6 rule that the experts be heard irrespective of the position of the other
7 side, in view of the great importance of the questions that they will be
8 dealing with and because of the need for their expertise to lay a
9 foundation for the rest of the evidence. And their expertise is
11 I have said already at the outset that I do wish to call some
12 expert witnesses, yes.
13 JUDGE ROBINSON: Mr. Milosevic, generally when I ask you a
14 question, you are not to answer by asking another question. The answer
15 that you gave to the question that I asked was that you would wish to call
16 some experts in the first wave of evidence. In view of the ruling which
17 we have made that you will be required to serve on the Prosecution reports
18 six weeks before the date on which it is anticipated the expert will
19 testify, there would be a problem in adhering to that requirement if you
20 intended to call experts in the four weeks of trial in July, and that was
21 the purpose of my question, because if you intend to do that, then the
22 Trial Chamber would have to consider making some amendment to the
23 requirement of 30 days for the opposing party to say whether it will
24 cross-examine or accept the report.
25 You must tell us very clearly, and the Chamber will give you a
1 period of seven days in which to indicate, whether you intend to call
2 experts, so that if it is necessary, the Chamber will consider making some
3 adjustment to the Rule.
4 I see Mr. Nice getting ready to stand up, and I suspect I know
5 why. Mr. Nice?
6 MR. NICE: Two things, please, Your Honour. First, six weeks,
7 would that be six weeks from the provision of the report in English?
8 Because, of course, provision of a report in Serbian or B/C/S may
9 constitute no more than provision of the report within three weeks, two
10 weeks, or one week in English before the witness is called.
11 In our original filing, we suggested that the timetable really
12 required two months. We responded to the amici's answer in our reply and
13 said that we would respectfully ask for six weeks from provision of the
14 document in English.
15 The second point, separate from that and perhaps almost more
16 connected to the previous issue Your Honour raised is this: If we look at
17 the latest schedule provided by the Defence of witnesses and start at the
18 fifth in that list, which is 65 ter number 1331, it seems inevitable to us
19 that, for example, that that witness -- I'm not sure at the moment if I'm
20 in a position to name these witnesses publicly so I'll just go by 65 ter
21 numbers for the time being. 1331, and certainly the next three witnesses,
22 1115, 1114, and 1098, are all witnesses whose evidence will be or will
23 include an element that will be expert in its nature, and it is not, in
24 our respectful submission, satisfactory for expert witnesses or witnesses
25 who will give expert testimony to come in in the guise of giving factual
1 evidence and then to give expert evidence or seek to give expert evidence
3 If we look, for example, at 111 -- sorry, 1331, the first person
4 to whom I referred, this is a lawyer who is inevitably going to be giving
5 expert legal opinions, arguably constitutional matters. When we come to
6 1115, similar considerations apply but now with historical flavour.
7 JUDGE ROBINSON: Mr. Nice, I was thinking we shouldn't be going
8 into this now because the admissibility of the reports will be governed by
9 the -- by the standards which are applicable.
10 MR. NICE: Your Honour, yes. My only concern is that the accused
11 shouldn't be under the illusion that merely stating that a witness is a
12 witness of fact is going to determine the issue. And of course, 1098 is
13 an interesting example of the limitations of our 65 ter summaries received
14 so far because it says no more than the witness is an academician and
15 that's all we know.
16 [Trial Chamber confers]
17 JUDGE ROBINSON: Mr. Kay?
18 MR. KAY: If the Court would forgive me, but some useful
19 information has come from Ms. Anoya, who is liaising in relation to a
20 number of these issues.
21 Two of the witnesses, their expert reports will be ready by the
22 1st of July. They came in in B/C/S. That's Witness 1115 and Witness
23 1114. 1098 and 1323 are still being worked on but there is a date for
24 those two by the 1st of July.
25 JUDGE ROBINSON: Yes. And that has been translated?
1 MR. KAY: Yes, it's undergoing it now and they know that will be
2 ready by the 1st of July. The registry are currently attending to it.
3 JUDGE ROBINSON: Well, that's helpful that those two reports could
4 be proceeded with. But it would be -- it seems there's going to be a
5 practical difficulty in relation to the time periods, because Mr. Nice is
6 of course correct; the reports have to be translated into English.
7 But for those two that will be available on the 1st of July, we
8 would be able to proceed with those, because those will be translated into
10 MR. NICE: Well, technically I think there will be a difficulty,
11 because the six-week period would take us into August. May I, without in
12 any way binding myself for the future, indicate that if those are
13 available in English on the 1st of July, we will do our best not to take a
14 technical point with them if the timetable of the trial would otherwise
15 make it efficient for us to take them in July.
16 JUDGE ROBINSON: You would not require the 30 days period?
17 MR. NICE: I can't say that for sure but I will do my level best
18 to be accommodating.
19 JUDGE ROBINSON: You do have a lot of resources available,
20 Mr. Nice, and --
21 MR. NICE: Some resources.
22 JUDGE ROBINSON: -- and it is open to the Chamber, pursuant to
23 Rule 127, to reduce period of time. And that's what the Chamber had in
25 MR. NICE: It sounds as though if the Chamber had that in mind and
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 we are not be disposed to take a point against it, there will be no
3 JUDGE BONOMY: I think when we were considering this we also had
4 in mind that the six-week period was in anticipation of a version not in
5 English and not translated coming to hand, but what you have here is one
6 which is already going to be in English by the 1st of July.
7 MR. NICE: Your Honours, yes. The observation about resources,
8 can I make this general point: Of course the Office of the Prosecutor has
9 substantial resources, but on matters of expertise, we have frequently, in
10 order to assist the Chamber, gone for outside assistance, and indeed I see
11 that that assistance has been reflected in the recent decision that the
12 Chamber has given.
13 Review of incoming expert reports will frequently require us to
14 return to the same experts or, alternatively, to engage further external
15 experts in order to give to our approach to the expertise a proper
16 responsibility and integrity, and although we will do whatever we can with
17 the use of internal resources, they are by no means limitless and neither
18 do they cover every field. The Chamber will remember the difficulties we
19 are still facing about, for example, the constitutional law aspect of the
20 Kosovo case and will recall also that the historian, for whom many of
21 these earlier witnesses would appear to be relevant, came from America and
22 was not an in-house expert at all.
23 JUDGE ROBINSON: Mr. Nice, I didn't wish to embarrass you by
24 suggesting that you have an embarrassment of riches in terms of resources.
25 [Trial Chamber confers]
1 JUDGE ROBINSON: Mr. Kay, can you just give us the two that you
2 say have already -- will be translated and ready by the 1st of July.
3 MR. KAY: 1115 -- 1115 and 1114.
4 JUDGE ROBINSON: In respect of those two, Mr. Nice, the Chamber
5 will reduce the period set out in 94 to 15 days, and then the accused
6 should be ready to call those witnesses, taking that into account.
7 THE ACCUSED: [Interpretation] Mr. Robinson, since you're speaking
8 about time concerns, I consider that you would have to be aware of the
9 fact, as would the public, of certain facts. You have to be aware of
10 facts which are relevant to time and the determination of time and the
11 subject we're commenting on right now.
12 The conditions I found myself in means that my preparations are
13 vitally slowed down, and the possibility for preparing in certain stages
14 are even non-existent. I will quote just a few examples to illustrate
15 that. They are of a material nature, therefore very exact. And these are
16 those facts: The facts have been recorded and confirmed in writing. You
17 or, rather, the opposite side over there has said that it has -- said it
18 completed its case while I was in bed. I started working -- I did not get
19 out of bed when you interrupted the case and adjourned.
20 I started working on my preparations on the 25th of March. The
21 date was the 25th of March. And because of your deadlines, I had to
22 invest a great deal of time and effort for me to supply you this list of
23 witnesses on four and a half thousand pages. That's one fact. So I
24 started working on the 25th of March.
25 The second fact is this: On the 14th of April, my doctors told me
1 to stop working. I wasn't even allowed to see my associates.
2 The third fact: In conformity with my physician's decisions, I
3 continued working on the 25th of May after a period of 41 days'
4 interruption. And since then, which means the past three weeks, and I see
5 that you are well aware of that because I received a copy of the report
6 this morning myself, I can only work three days a week.
7 So my request to you, gentlemen, is a very concrete one, and the
8 reasons that I presented are, I hope, quite obvious and evident and merit
9 you extending that deadline, extending my time for me to be able to do the
10 necessary preparations. All the more so since, through your dynamics, you
11 have impaired my health very seriously. And within the frameworks of my
12 possibilities and the circumstances and the time I have at my disposal to
13 allow me to interview at least 30. You have asked for 50, but I would
14 like to be allowed to interview at least 30 witnesses, enough time to do
16 Now, if you curtail my time further and if you restrict these
17 possibilities and the possibility of my engaging in elementary
18 preparation, then in actual fact you are rescinding my right to a defence
19 and curtailing that. And I'm sure you will remember, Mr. Robinson and
20 Mr. Kwon, that on many occasions here I broached the question of when it
21 is that you consider that I have the time to read through the more than
22 6.000 pages that I have been provided with during the trial. 600.000
23 pages, that is. And the answer I always got was that you would look into
24 the matter. And then between the two parts, or sittings, I was given a
25 couple of weeks to prepare the ensuing sitting and to read through these
1 600.000 pages.
2 So my request to you is this - and you can see for yourself, you
3 have all the dates, I'm sure that they have been recorded by all the
4 services - and that is to extend my deadline, to extend the time I have
5 for my preparations, for me to get through the basic preparations.
6 JUDGE ROBINSON: Thank you, Mr. Milosevic. You're actually a bit
7 out of order there, because we're going to come to that issue later on,
8 but we take note of the submissions that you have made.
9 I come next to paragraph 34 of the submission, the service of
10 exhibits. Rule 65 ter (G) requires the accused to disclose to the
11 Prosecution copies of all exhibits on his 65 ter list before the
12 commencement of the Defence case, and the accused will be required to do
13 so within seven days after this conference.
14 I come next to paragraphs 35 to 38, which deals with the
15 participation of the accused. The Chamber will confine itself to saying
16 that whenever it informs the accused that he is required to make a written
17 filing, he will be expected to comply with that requirement.
18 Paragraph 39, which deals with the imposition of Defence counsel,
19 the Prosecution has again raised this issue. The Chamber recalls its
20 previous rulings on the matter and will not deal with this matter at this
22 Paragraph 43, the accused testifying. The Chamber notes that the
23 accused has not included his own name on the 65 ter witness list, and if
24 he intends to give evidence, then he should inform the Trial Chamber when
25 he intends to do so and how long he anticipates the evidence will take.
1 There are also submissions from the Prosecution relating to an
2 opening statement of the accused. Generally, the Prosecution was opposed
3 to this, but the Trial Chamber recalls that it has already decided this
4 matter, transcript 8675. That matter was considered by the Chamber, and
5 the Chamber, after hearing from the parties, decided that the accused will
6 be allowed to make an opening statement. Accordingly, the accused will be
7 allowed an opening statement of two hours. The Prosecution will not be
8 given an opportunity to respond.
9 Paragraphs 44 to 46. This has to do with exculpatory material.
10 The Chamber notes the concerns raised by the amici with respect to Rule 68
11 disclosure, but it considers that what the Prosecution is offering in its
12 submission is reasonable and sufficient.
13 Paragraphs 48 to 50 of the submission. This deals with witnesses,
14 five witnesses whom the Prosecution had intended to call before closing
15 its case. The Chamber will not allow the Prosecution to call the five
16 witnesses it did not call at the end of its case, but this is without
17 prejudice to the possibility that the Chamber may itself decide to call
18 any of these witnesses pursuant to Rule 98. And the same thing applies
19 for the submissions under paragraphs 51 to 53, the list B witnesses.
20 Paragraph 54 of the submission. Mr. Nice just referred to the
21 difficulties in finding a constitutional expert. The Trial Chamber will
22 shortly issue an order requiring submissions from the parties in due
24 Paragraphs 55 to 64 of the submission is the question of the
25 Croatian intercepts. The Prosecution will not be allowed to call
1 Witnesses C-1249 or C-1250 to authenticate intercepts not admitted during
2 the Prosecution case. But whether the intercepts can be used in
3 cross-examination is a matter that will have to be dealt with if and when
4 the issue arises.
5 Paragraphs 65 to 68 of the submission is a confidential matter,
6 and the Chamber simply notes those paragraphs and will not deal with the
7 issue at this conference.
8 Now, I come to the matters raised by the accused at the Rule 15
9 bis hearing on March 25th. The first matter is the extension of the
10 three-month preparation time. We have heard submissions from the accused
11 on this matter, so we need not hear him again on it.
12 The Trial Chamber made adequate adjustment to the period provided
13 to the accused to prepare his defence, and the Defence case will commence
14 on the 5th of July, 2004, as scheduled.
15 The accused, at the Rule 15 bis hearing, also asked for an
16 extension of the period of 150 days for the presentation of the Defence
17 case. The Trial Chamber adheres to its order that the accused will have
18 150 sitting days to present his case.
19 The accused, also at the Rule 15 bis hearing, renewed his
20 application for provisional release. He set out arguments. The Chamber
21 has considered them. The Chamber refuses the application for provisional
23 The other matters that I'd like to raise are the accused, in
24 presenting his evidence, will observe the Rules relating to evidence in
25 chief: He is not to ask leading questions, and he must not give evidence
1 himself, he must not make speeches.
2 Production of documents. The accused must produce documents in
3 court in an orderly manner. If he is producing documents not already
4 exhibited in the case, then sufficient copies should be supplied for the
5 Bench, the Prosecution, and as appropriate, the witness.
6 And, Mr. Milosevic, you should bear in mind that documents not
7 already translated into English will have to be translated, and so you
8 need to take that into account and ensure that sufficient time is given to
9 enable them to be translated.
10 THE ACCUSED: [Interpretation] Mr. Robinson, how do you expect me
11 to have enough time when you're not giving me even as much time as you
12 have decided to give me? Do a bit of calculation. Do the arithmetic.
13 After that --
14 JUDGE ROBINSON: Mr. Milosevic, I'm stopping you. In relation to
15 the three-month period that was given, we took account of the fact that
16 you were ill for a period of that time. We calculated it. We extended
17 the period in the first case by two weeks, and then secondly, by another
18 two weeks. So I think it is quite wrong of you to say that you have not
19 been given the full period of time of three months.
20 The Trial Chamber has been very sensitive to your health and has
21 always taken account of the time that you need.
22 THE ACCUSED: [Interpretation] Mr. Robinson, I wish to believe that
23 you're well-intentioned but perhaps not well-informed. You spoke about
24 the matters I raised when I was here on the 25th of March. Neither you
25 nor I at that time could have known that on the 14th of April I would have
1 been prohibited from going to work for a period of 41 days. So if the
2 25th of March was the beginning, then the 25th of July is three months.
3 And if you add to that the 41 days because -- on the 25th of June is the
4 three months, but if you add to that the 41 days, then that will make it
5 the 6th of August at the very earliest, because I don't expect you to
6 calculate in these 41 days which pursuant to your orders, not yours
7 personally but the authorities keeping me in prison here, I was excluded
8 all possibility of doing any work. So you cannot forget about those 41
9 days, although I see you wish to forget the fact that afterwards I was
10 allowed to work just three days a week.
11 Therefore, taking this into consideration, if you calculate the
12 time and bearing in fact -- bearing in mind the fact that I was ill and
13 you interrupted this interval and started counting from the 25th of March,
14 if you add to that the 41 days during which I was not allowed to work,
15 then that will bring us to the 6th or 7th of August. And if you add to
16 that the fact that I was allowed to work only three days a week, then of
17 course that is a far longer period of time even if you take into account
18 just the three-month time limit and deadline that you gave me.
19 So I seem to have to fight for elementary human rights here and to
20 prove that arithmetic and mathematics is an exact science, that medicine
21 is based on exact facts and it too is an exact science, and that time can
22 be calculated and counted and observed. So if you wish to infringe upon
23 my time despite all the facts that I have set forward and the very mean
24 period of three months that you have given me, you will do that because
25 power is in your hands. But I don't think that it would be the proper
1 course to take because I didn't do this of my own free will. They forbade
2 me to work and my associates were sent away from the detention centre,
3 they were not allowed to come in. So I am bearing in mind the fact that
4 you are very sensitive to my needs, but I'm willing to believe that you
5 have gone wrong in some of your calculations, quite simply, because I went
6 into this matter very carefully myself and calculated the time, and it is
7 easy, in fact, to calculate.
8 So from the 25th of March to the 25th of June is three months.
9 Add to that the 41 days in question, and that will take you up to the 6th
10 of August. Only if you add that, if you forget the fact that I was not
11 allowed to work more than three days a week. And in one particular week,
12 quite by chance I put in four working days in order to be able to take in
13 one more witness, and the Registrar told me I wouldn't be able to include
14 that fourth day because I was allowed to work only three days a week. And
15 in this paper, this piece of paper that I received this morning, in fact,
16 I can see that that regime is still in force, and not only in force but
17 that there are serious reasons for it to be continued, the way it is being
18 administered. So those are the facts.
19 JUDGE ROBINSON: Thank you, Mr. Milosevic. The Chamber considers
20 that it has dealt very fairly with you in this matter and will not change
21 the time period that has been set.
22 I think it is now time for a break. Let me consult first with my
23 colleagues on that.
24 [Trial Chamber confers]
25 JUDGE ROBINSON: We will take a break now and we will resume at
2 Mr. Nice?
3 MR. NICE: Your Honour, yes. I will obtain, if I can, and provide
4 over the break, the decisions in Galic; Krstic; Tuta, Stela; and
5 Blagojevic concerning the nature of summaries. I have here, by way of
6 example, a single set of summaries provided in Blagojevic which were found
7 to be inadequate with the version that was subsequently found by the
8 Chamber to be sufficient in case that would assist you. I had a couple of
9 points that I would like to make on the decisions in those cases but I
10 prefer to get the decisions together before you before I make those
11 points, if you will allow me.
12 JUDGE ROBINSON: Thank you.
13 MR. NICE: I will hand in the samples from Blagojevic now.
14 JUDGE ROBINSON: Yes. Will the registrar please take the
15 documents from --
16 MR. NICE: They're marked but only in an inconsequential way.
17 JUDGE ROBINSON: Thank you.
18 --- Recess taken at 11.28 a.m.
19 --- On resuming at 12.46 p.m.
20 JUDGE ROBINSON: We took a longer adjournment to consider some of
21 the matters that had been raised.
22 First Mr. Nice.
23 MR. NICE: Only to say, Your Honour, that Your Honours have had an
24 opportunity of looking at the decision in Tuta, Stela, a passage from the
25 session in Krstic which dealt with this topic, and also in Blagojevic.
1 The decision in the Galic case is still being searched for and hasn't yet
2 been found and provided. I can make further comments on the passages that
3 Your Honour will have looked at, but it may be sufficient to adopt the
4 distinction that Mr. Harmon drew in Krstic between topic and facts, the
5 rules relating to facts, and the very brief summaries of which he made
6 complaint covering only topics and topics were found to be insufficient.
7 Your Honours will also have seen your brother Judges in other
8 cases have supported the notion that the Prosecution should by these
9 summaries be in a position to prepare for forthcoming witnesses as well as
10 to be provided with information which enables Trial Chambers to conduct
11 their work.
12 I can't help further unless you -- it may be that Galic will be
13 available soon.
14 JUDGE ROBINSON: Thank you. Mr. Kay.
15 MR. KAY: Yes, Your Honours. If you'll forgive me for rising to
16 my feet about one matter which has arisen this morning, and it's our duty
17 as an amicus to raise certain matters if they occur to us to be of
18 importance, and that concerns this subject of the length of adjournment
19 necessary for the preparation and presentation of the Defence case.
20 We all know that in the intervening period since the beginning of
21 February until today's date, during which period the Court has not sat,
22 that Mr. Milosevic has been subject to ill health, and I'm aware that the
23 Trial Chamber has received regular medical bulletins, as indeed we have,
24 concerning his treatment and circumstances over the intervening period.
25 He mentioned the figure of 41 days that has been lost in relation
1 to his time for preparation caused by illness. I haven't actually checked
2 that figure myself, but I was aware that it was in a region over one
3 month, and I thought about six weeks, and I have no doubt that he would
4 have kept the right figure over that period.
5 You will know, of course, that he has been the subject of
6 medication, he has been the subject of medical advice which required him
7 to stop working on his preparations, and the original order of the Court
8 was that there be a three-month break before he started his case, having
9 completed the Prosecution case.
10 In the circumstances, if one considers the amount of time that he
11 has had out from being able to work as a result of medical advice and then
12 on top of that you take into account his circumstances since February and
13 until very recently, when his health has fluctuated on a regular basis and
14 it is clear from the medical reports that there were periods when he was
15 undertaking work that that had a poor effect upon his well-being and
16 health, that one could adequately describe this as being battling with the
17 preparation of his case during that time.
18 It's to reinforce his submission this morning that I raise this in
19 relation to the time that's available. The calendar, at the moment,
20 starts from the 5th of July, and there would be nine or ten Court sittings
21 before the August recess. In our submission, if one took those days out
22 of the picture now and said that the case was to restart at the end of
23 August, in the third week of August, that would then allow the Court not
24 to have missed too much in terms of time of the Defence case but also
25 allow him those valuable extra days that he requires help with in relation
1 to getting his case into some semblance of order.
2 It's quite clear from what was said this morning that there has to
3 be a revisiting by him of his witness list, and the Court has reaffirmed
4 the 150 day time limit, and that would have been a matter that would have
5 been taken on board not only by him but his advisors, and there's got to
6 be a restructuring of those witnesses as well as a partitioning into the
7 issues of Kosovo indictment, Croatia indictment, and Bosnia indictment.
8 And we've had a ruling on that really for the first time today in relation
9 to the manner of the presentation of the case.
10 So what I submit in relation to this matter is this: That if the
11 Court considered that those ten days could be shifted back in the
12 calendar, in fact not a great deal will be lost by the Trial Chamber, but
13 there may well be a great advantage to the administration of justice if
14 that gave more time by which his case could be more smoothly prepared,
15 taking into account today's rulings as well as the need for the proper
16 presentation of his case.
17 The Court will be aware that he has been interviewing witnesses
18 within the detention facilities. That has been made available, as he's
19 representing himself, and that that, no doubt, has had a great deal of
20 work on his behalf to achieve what is necessary for the presentation of
21 his case. So if perhaps that little bit more time was given to him, it
22 may be that it helped the Trial Chamber enormously in the long-term in the
23 smooth preparation of his case and he could think now whether he's going
24 to deal with Kosovo matters first or the Bosnia and Croatia matters first.
25 JUDGE ROBINSON: Thank you, Mr. Kay. We're grateful for your
2 [Trial Chamber confers]
3 JUDGE ROBINSON: Mr. Nice?
4 MR. NICE: We have nothing further to say. We recognise that the
5 Chamber has already made a decision about when the case should restart.
6 In our submission, the accused has had time to prepare the witnesses who
7 will be heard between that date and the end of the session. There's
8 plenty of time then for further preparation for September. It would be
9 unfortunate to lose this start date. It's highly desirable that the case
10 is recommenced as soon as may be consistent with his rights, and we know
11 that the Chamber has reflected on those rights and respected them in
12 giving the measured decision it has about giving him extra time.
13 JUDGE ROBINSON: Thank you. I'll deal with three matters. The
14 first matter relates to the information that the accused gave us about the
15 41 days lost due to ill-health. It also relates to the matter just raised
16 by Mr. Kay.
17 The Chamber is going to order that the Registrar provide
18 information about the number of working days lost by the accused due to
19 illness; and secondly, the occasions when the associates were prevented
20 from visiting him on account of illness. The Chamber seeks this
21 information so that it will be in a position to deal with any difficulty
22 that the accused experiences in presenting his case.
23 The second matter is the Prosecution's request for more detailed
24 summaries. The Chamber notes that the main ground submitted by the
25 Prosecution for seeking more detailed summaries is that the Trial Chamber
1 will be better assisted in the -- in its management of the case. At this
2 stage, it appears to the Trial Chamber that the information provided is
3 enough. We will not require more detailed summaries. This, of course, is
4 without prejudice to the inherent right of the Chamber to manage the case
5 and to request any additional information it wishes at any time.
6 The third matter relates to the order that I made earlier that the
7 accused should produce a witness list of the first 50 witnesses and the
8 order in which he proposes to call them. That is to be done within seven
9 days of -- of this Pre-Defence Conference.
10 [Trial Chamber confers]
11 JUDGE ROBINSON: There is just one administrative matter.
12 Yes, Mr. Milosevic.
13 THE INTERPRETER: Microphone, please.
14 THE ACCUSED: [Interpretation] You mentioned the matters that would
15 be discussed today, and you said that in that order, we would be dealing
16 with these particular matters and that I would probably have something to
17 say in respect of these matters. So I assume that you will make it
18 possible for me to say something to you about this. Without waiting to
19 hear any reaction of mine or any argument that I may put forth, you have
20 already made a decision. And you said yourself at the very beginning we
21 will take the following matters in the following order, the witnesses, the
22 limits, and so on and so forth. I wrote down all the questions that you
23 raised, and I --
24 JUDGE ROBINSON: Mr. Milosevic, I'm stopping you. I hear what you
25 have said, and what you have said is true, but you did address us
1 extensively out of the order that I had outlined in relation to the issue
2 of the three-month period. You made extensive submissions on that issue,
3 and that is why I didn't invite you to address us again.
4 You have not addressed us specifically on the issue of the 150
5 working days, and if you wish to do that, then you may do that briefly,
6 very briefly.
7 THE ACCUSED: [Interpretation] Well, very briefly: First of all
8 with regard to the witness list, I wish to make it clear and known since
9 you believe that it is too extensive a list, 1.631 persons, please bear in
10 mind that tens of thousands of persons have volunteered to testify,
11 astounded by the lies that they heard here. My associates and my comrades
12 from the Freedom Committee and others have reduced the number to around
13 5.000, and I, together with a few associates here, reduced the number to
14 the figure that I already gave you.
15 The question is now whether you're interested in the truth at all.
16 I heard an objection, for example, that I have 200 witnesses on the list
17 that are supposed to testify about camps. That is correct, but it is not
18 a question of 200 witnesses. It's a question of 200 camps. I only put
19 one witness per camp. I will have to reduce even that. I see that.
20 However, all in all, I think that this limit that you imposed has to --
21 JUDGE ROBINSON: Continue, Mr. Milosevic.
22 THE ACCUSED: [Interpretation] This limit that you have imposed is
23 one that you reached through some kind of arithmetic that I cannot
24 understand. How did you come up with this 150 days? The entire world
25 knows that the other side had 300 days, and even that was done to the
1 detriment of the public, because very often they resorted to your Rule 92
2 bis to provide written statements, and Rule 89(F), where thousands of
3 pages were presented here during a negligibly short examination-in-chief
4 and that's how these thousands of pages were dealt with. I want my
5 witnesses to testify in public. All of my evidence is going to be public.
6 I'm not going to ask for a secret session for any witness, although that
7 has been done before.
8 So I believe that this hasty decision of yours to reduce things to
9 150 days is something that does not correspond to elementary rights and
10 the need to have the truth heard. At any rate, it talks about a most
11 extremely unequal position when compared to the side opposite, even if we
12 disregard the fact that this other side has an enormous machinery that was
13 placed at its disposal and that it has even today.
14 Furthermore, with regard to the order and organisation, due to
15 objective constraints that I've already presented you, I had the
16 opportunity of speaking to only a few witnesses so far. You have
17 information which will show you that I did not skip a single day of work
18 that was allowed to me, and on each and every one of these days I received
19 witnesses. The other side, when they see witnesses and when they prepare
20 them, they keep them here for seven days or 15 days. I talk to a witness
21 for one day, and then I take into account the fact that I will have
22 another day or two prior to the actual day of giving evidence.
23 So look at the attitude taken vis-a-vis my witnesses as opposed to
24 those taken by -- vis-a-vis the witnesses of the other side. And I do not
25 intend to call criminals or terrorists or any other such type of witness
1 who have disqualified themselves through their own conduct. So you're
2 asking me to provide within seven days 50 names of witnesses. I'm going
3 to read this list out to you that you have seen. So far I've called to
4 1341, 1331, 1323, Witness number 6, 7, 1062, 25, 625, and 1170. As you
5 can see, that's about ten witnesses.
6 Now, you tell me, if you take into account the fact that I used
7 each and every one of the days that was made available to me as a workday
8 and every day I worked for shorter periods of time because I cannot use
9 the entire day, so I dealt with these witnesses, how do you expect me to
10 provide a witness list before I speak to the witnesses that I'm supposed
11 to give you a list of and before I see in which order they will appear? I
12 think that this is at odds with any kind of logic. On the one hand, you
13 do not give me an opportunity to talk to witnesses. On the other hand,
14 you ask me to give you a list and the proper order, although I have not
15 spoken to them. I think that you absolutely cannot say that this would be
16 in the interests of justice or fairness of any kind.
17 I see that an effort is being made to a maximum to practically
18 prevent the presentation of the truth, and obviously this is the
19 instructions you have and this is what you work under, but I have a few
20 more requests, and there are some other things I wish to say to you.
21 You did not ask for my views at all, but you said that you would
22 give me two hours for introductory remarks. I could not believe what I
23 was hearing. Mr. Robinson, you personally, here in this courtroom when
24 Mr. Nice objected as to whether I had the right of an opening statement or
25 not, you said that I do have the right to an opening statement. And when
1 he raised the question of my providing the statements, you said that since
2 I defend myself, you said that I had the right to a statement and to an
3 opening statement. The fact that I made these statements cannot constrain
4 in any way my right to opening remarks.
5 I wish to remind you of the fact that the other side, at the very
6 outset, had an opening statement of two days. Towards the middle, when
7 they moved on to Bosnia-Herzegovina and Croatia, they also had one day of
8 an opening statement. I ask you to make it possible for me to have three
9 days for an opening statement, too, because it is quite impossible to make
10 an opening statement otherwise. I am going to introduce evidence through
11 witnesses, exhibits, too, in order to shorten matters, but I do ask you to
12 give me three days for an opening statement.
13 Furthermore -- let me just have a look at this. I have already
14 asked for this, and I've mentioned this to you earlier on as well, to
15 issue an order to disclose documents of foreign services that were
16 involved in what took place in Yugoslavia, referring to Great Britain, the
17 US, France, and Germany and their services in particular. And I asked you
18 to make an order for this kind of discovery and disclosure when dealing
19 with the lists of what Yugoslavia had. And I asked you to give an order
20 in relation to persons whose names are on lists, on a list. These are
21 hostile witnesses. Actually, this is Clinton, Genscher, Clark and many
22 others. You have this list. Please issue an order that they have to
23 appear as witnesses here.
24 We had one of them here, and he dictated the conditions of his
25 giving of evidence. That was Clark. And at the same time, he did not
1 even abide by your ruling at all not to communicate with anyone during his
2 testimony, because in the middle of his testimony he brought this letter
3 from Clinton saying that he was so good and successful, and so on and so
4 forth. So Clinton has to appear here. Schroeder has to appear here.
5 Blair, too, and others. They were heads of state. I was a head of state.
6 You are trying me here as a head of state. I provided you with this list,
7 and I ask you to issue this kind of order; that is to say, disclosure of
8 the documents of the relevant intelligence services. And also these
9 witnesses will have to appear here as witnesses, and also the list of
10 documents that Yugoslavia, rather Serbia have.
11 And another technical question: I ask you to rule on free passage
12 or safe passage for three witnesses that are here. I mean, immunity and
13 so on and so forth, who were high officials of Yugoslavia, Republika
14 Srpska Krajina, Republika Srpska. These are witnesses whose names I have
15 to find on this list now. I don't want to read out their actual names.
16 It's 1068, 1329, and -- and 327. They are on the first witness list. I
17 assume, of course, that I should be given the opportunity to talk to them
18 and that, after that, they should be given the opportunity to come and
19 testify here. They are on this first list.
20 Now, in relation to your decision, the one that you also made
21 public now without asking for any kind of reaction or opinion, that I
22 should prepare witnesses according to these alleged indictments for
23 Bosnia, Croatia, and Kosovo, in my introductory statement I said quite
24 clearly that only one war was waged, and that was the war against
25 Yugoslavia. And after all, you joined these three indictments, either
1 spontaneously or in the wish to make things even more difficult. As far
2 as I remember, Mr. Kay was opposed to that because he said that there is
3 not a single human being that can deal in such a way with this entire
4 case, but you have joined it nevertheless.
5 Now a few days before this deadline that you have established just
6 now, you say to me that I am supposed to have Kosovo separately, Croatia
7 separately, and Bosnia separately. First of all, in principle that cannot
8 be accepted because actually this was a war against Yugoslavia. This
9 entire decade, a war against Yugoslavia was waged. Also, I do not see any
10 reason why anything should be imposed upon me. Of course, many other
11 constraints were imposed upon me, but you did not impose any such
12 constraints on the other side.
13 This Clark, for instance, he testified about Kosovo in the middle
14 of the evidence that had to do with Bosnia-Herzegovina. There were also
15 other witnesses who came in at a time when witnesses pertaining to other
16 parts came here to testify. So I cannot accept that.
17 And in addition to that, you stated here that I would be obliged
18 to send in written motions. I have no intention of doing that for reasons
19 of principle, Mr. Robinson. I never tabled any written motions because I
20 don't recognise this Tribunal. I consider it to be an illegal Tribunal,
21 and I consider it to be a means of warfare against my country. And
22 treatment here and the treatment of my rights here testifies to that,
23 because everything that you have said thus far here today is geared
24 towards limiting to the maximum the fact that the truth should be heard
1 So I raised a series of matters and issues that I would like to
2 hear your decisions on.
3 JUDGE ROBINSON: I will give the decision shortly.
4 [Trial Chamber confers]
5 JUDGE ROBINSON: Mr. Milosevic, you raised a number of matters,
6 and the Chamber has given them careful consideration. With regard to your
7 opening statement, you are quite right. I did speak very strongly in
8 favour of your right to a statement, to make a statement. The question is
9 how long it should be. It is true that the Prosecution took some days to
10 make their statement, but you were then allowed to reply at that time.
11 However, we take what you say into consideration, and we will
12 extend the -- your opening statement by two hours so that you have four
13 hours, or roughly one day, in which to make your opening statement.
14 The next matter is the request that you're making for documents to
15 be produced by states. That is covered by Rule 54 bis, which requires
16 that a party requesting that a state produce documents or information must
17 apply in writing. So that absolutely has to be in writing, Mr. Milosevic.
18 You have asked us to require the appearance of a number of
19 persons. In effect, you're asking us to subpoena those persons. You will
20 have to produce, in writing, reasons for the issuance by the Chamber of
21 that subpoena, and I make that absolutely clear.
22 Don't interrupt. When I finish, I'll ask you to speak.
23 The next matter is the order of -- in which the witnesses will
24 appear. I had ruled that they will appear indictment by indictment, and
25 there will be no change to that. How you conceive the indictment is
1 entirely a matter for you. The Chamber has the obligation to manage the
2 case effectively and efficiently, and in the Chamber's view, witnesses
3 should be produced indictment by indictment except where the witnesses
5 You have made a request for the free passage of three witnesses,
6 1068, 1329, and 327. Ordinarily, that should be done in writing, but the
7 Chamber will consider the -- that application on the basis that it was
8 done orally.
9 The Chamber maintains three-month period and the 150-day period,
10 all of this subject to what I said about the information which we are
11 requesting from the Registrar concerning the number of days that you lost
12 due to ill health. When the Chamber gets that information, the Chamber
13 would then be in a good position to determine how to approach any
14 difficulty that you might experience in presenting your defence. I don't
15 want to say anything more about -- I don't want to say any more about
17 The Chamber may then be inclined to show some flexibility in
18 relation to the presentation of your case if you experience a difficulty,
19 but that will depend on the information that we receive from the Registrar
20 concerning the number of days that you have -- that you have lost.
21 I believe that covers the matters that you have raised and I don't
22 wish to prolong this hearing any longer. Do you have anything further to
23 say, Mr. Milosevic?
24 THE ACCUSED: [Interpretation] Well, I precisely wish to say this:
25 I gave you on paper, to the liaison officer, actually, the one that you
1 appointed or who the Registrar appointed, with the names of all these
2 individuals. And the reasons for which Clinton should appear here are
3 quite clear. He decided upon many matters which had to do with
4 Yugoslavia. He uttered a series of lies as a pretext to the bombing of
5 Yugoslavia. He gave the orders --
6 JUDGE ROBINSON: I have -- I have cut you off, Mr. Milosevic.
7 That is out of order. We have made our ruling, and we intend to abide by
8 it. You must abide by it too. If you want a subpoena issued by this
9 Court, you will have to provide reasons prompting the issuance or
10 warranting the issuance of that subpoena. I don't know of any court in
11 which the position could be otherwise and I don't wish to hear anything
12 more on that. If you are going to continue in that vein, we'll stop right
14 THE ACCUSED: [Interpretation] Mr. Robinson, is it logical that if
15 you have set - when I say "you" I don't mean you personally, I mean this
16 organisation here - a liaison officer, when you have appointed one, then I
17 assume that what I request via the liaison officer reaches you and that
18 you give it due consideration, because otherwise this liaison officer is
19 unnecessary and given just as a cover to show that you have assisted me on
20 administrative matters.
21 JUDGE ROBINSON: The liaison officer is a liaison. A liaison
22 officer is not your counsel. You are representing yourself. You must
23 make the representations to us in writing in relation to the matters that
24 I have outlined.
25 Are there any other matters?
1 We are adjourned.
2 --- Whereupon the Pre-Defence Conference
3 adjourned at 1.27 p.m.