²³³

Wednesday, 9 January 2002

[Pre-Trial Conference]

[Open session]

[The accused entered court]

--- Upon commencing at 9.30 a.m.

JUDGE MAY: Let the registrar call the case.

THE REGISTRAR: Good morning, Your Honours. Case number IT-99-37-PT, the Prosecutor versus Slobodan Milosevic.

JUDGE MAY: The appearances, please.

MR. NICE: As Your Honour will see, the Prosecutor, Madam Del Ponte, is here. I appear with my learned friend, Mr. Ryneveld, and Ms. Romano, who will be the court team for this trial.

MR. KAY: For the amici curiae, I'm Steven Kay, QC of England, Misha Wladimiroff from the Dutch bar, and Branislav Tapuskovic of the Yugoslav bar.

JUDGE MAY: The trial in this case has been fixed for the 12th of February of this year. This is the Pre-Trial Conference to be held under Rule 73 bis of the Tribunal's Rules of Procedure and Evidence. We will begin by dealing with issues which relate to the Prosecution. We will then hear from the amici curiae, and deal finally with matters relating to the defence, when the accused will have the opportunity to be heard. Beginning, then, with the Prosecution. Broadly, there are three matters relating to witnesses and disclosure, together with exhibits. In relation to witnesses, the Rules require the Trial Chamber to set the number of witnesses to be called and to determine the time available for ²³⁴ the Prosecution to present its evidence.

Mr. Nice, the Trial Chamber, as you know, in its Scheduling Order, asked the Prosecution to inform it of the number of witnesses to be called, the order for doing so, and any matters relating to protective measures not covered in previous orders.

I'll ask you to deal with those matters. Also, to deal with a number of written statements which it's sought to be introduced. I have some matters in relation to admissibility which I want to raise, but it may be convenient if, first of all, we dealt with the number of witnesses and the order for calling them.

MR. NICE: Your Honour, can I explain? Today, Mr. Ryneveld is going to deal with nearly all the nuts and bolts issues that you've raised in your Scheduling Order, and in particular with issues 1 (A) to (F) and there are documents that will help you and others in relation to that. There are only three topics that I want to deal with at some stage today. I'll just tell you what they are and I'll hand over, if that's acceptable, to Mr. Ryneveld.

The three issues that I'd like to deal with at some stage are, first, whether the accused should receive any additional caution in respect to things he says in the course of these proceedings. The second issue is -- and this relates, of course, not just to this trial but to the associated trial, the other two indictments, whether, and if so on what terms, details of protected witnesses should be provided to an accused who expressly does not recognise the authority of the Court. ²³⁵ And the third issue I'd like to deal with generally and in respect of which an extensive report has been provided is the issue of Rule 68 disclosure.

But having identified those topics as topics on which I'd like to speak, can I hand over to Mr. Ryneveld to deal with the other matters that you've raised. There's a document that he wants to be distributed. I haven't got copies of it. If I can make those available to you via your usher, I'll then sit down.

JUDGE MAY: Mr. Nice, it may be convenient for you to deal with the disclosure point when we're dealing generally with disclosure, which we will, and for you to deal with the other two points really at the end of dealing with the Prosecution matters.

MR. NICE: As Your Honour pleases, yes.

JUDGE MAY: Yes. If we could have those documents.

MR. NICE: There's three for the Chamber or four for the Chamber, three for the amici, and one for the accused.

JUDGE MAY: Yes, Mr. Ryneveld.

MR. RYNEVELD: Thank you, Your Honour. Your Honour, I propose, if I may, to deal with the issues raised in the Court's order of the 4th of January and the order in which they appear in that order, points (A) through (F).

Dealing first with point (A), the number of witnesses to be called. The Prosecution anticipates calling approximately 110 witnesses by way of viva voce evidence of the potential 201 that were identified in our 65 ter witness list which was filed on the 26th of November. ²³⁶ In our submission of that same date, the Prosecution indicated that we would be seeking to call additional witnesses presently subject to Rule 70 restrictions. At the last Status Conference on the 11th of December, the Prosecution advised the Trial Chamber that we would forecast a group of insiders, a group that may be growing and of great value, of approximately 25 to 30. These are all included in the figure of 110 that I now provide to the Court.

Therefore, the estimated potential group of witnesses originally totaled, I believe it was 231, and of that number, the Prosecution proposes to call approximately 110 by way of viva voce evidence, and with leave of the Court, will tender the evidence of 123 crime base witnesses by way of 92 bis statements. In the event the Court, of course, does not grant permission for the witnesses' evidence to be submitted by way of 92 bis, the Prosecution would then seek leave of the Court to call those witnesses viva voce. So our total number of witnesses, those are the number of witnesses we need to prove our case, in our submission. Of those 110 I've now outlined to you we intend on calling viva voce, the breakdown is roughly as follows: Crime base and investigators to cover the crime base would be 48. Policy witnesses, of whom as of today 10 still have Rule 70 restrictions pending, 25; experts, 11; insiders -- now, we said last day there would be 25 to 30. I anticipate that there are 20, potential of up to 20 insiders, many of whom are still being developed. And miscellaneous, 6, for a total of 110. Now, the Court also asked the Prosecution to address the issue of protective measures, if any, likely to be sought for each witness. Well, ²³⁷ on the 14th of November of last year, the Trial Chamber granted the Prosecution's motion to provide protective measures for 29 identified witnesses, and they received pseudonyms of K1 through to K29. At the moment, the Prosecution does not know of any other witnesses who to date have expressed safety concerns warranting the seeking of additional protective measures. It may be, however, that during the course of the trial that some witnesses, for various reasons, may request protective measures during the course of the trial. For example, some of the potential insider witnesses who consent to give evidence may require certain protective measures. Similarly, witnesses currently covered by Rule 70 restrictions may agree to testify only if certain protective measures are granted. The Prosecution then proposes to raise these matters with the Trial Chamber on a case-to-case basis as the situation develops.

Now, the order in which witnesses are to be called. You have, just prior to my speaking, been provided with a list of witnesses, and if I might assist to give you a brief overview of what those columns denote and how they were arrived at.

As you can see, there appear to be five columns. The left-hand column underneath the word "date" is our projected date on which the witnesses would be called. Assuming the trial starts on the 12th of February, we would anticipate that the first day would be taken up substantially with opening statements and legal or administrative matters which may consume most of the first trial day. If, of course, we are pessimistic as to how long that would take, then, of course, we could ²³⁸ start the witness on the 13th -- I'm sorry, on the 12th, and these figures would consequently have to change.

Now, the next column is the number of the witnesses that we have identified, and you'll see that at the last page, page 8, there are 90. So from 1 to 90 are shown in the second column. Those are intended to be the viva voce evidence witnesses.

The third column which sets out the proposed 92 bis witnesses, the next column has all of their names. And the final column shows their original witness number as contained in the Rule 65 ter filing. So, for example, when we get down after number 7 on the 19th of February, you'll see the first 92 bis witness is named and that witness was the third witness on our 65 ter list. That's how this works. Now, you will also note that there are subheadings which indicate more or less the way in which the Prosecution anticipates proceeding. "Overview and Introduction," you'll see that we have proposed an original four witnesses under that main category. And then we move into the deportation witnesses, and that continues to the bottom of page 1, page 2, and all the way down to almost the bottom of page 3 where there is then "Deportation Analysis," and there are some experts then proposed to be called and then some 92 bis witnesses. And then the next column would be personal dealings with Milosevic and then names of people mentioned there, et cetera. I think it's fairly self-explanatory how we propose to go. The other thing that the Court might note is that to date we only have an indication as to court sitting times to the Easter break. So we have projected as best we can how long we anticipate these witnesses would ²³⁹ take, and of course, we cannot tell. This is our best guesstimate depending, of course, on length of cross-examination, if any, by either the amici or the accused, Mr. Milosevic, or indeed members of the Trial Chamber itself. We may be hopelessly optimistic about how long these things may take; we may be on. I don't know. This is our best estimate. But to finish my earlier thought, you will note that at about page 5, we stop at number 49. That would be the 28th of March, by our estimate. Thereafter we do not have a court schedule giving us an indication how long we'll be sitting or whether the process -- so there you'll see numbers, plus one, plus two, plus three. Those numbers mean the first day, the second day, the third day, as it were, right through to the end.

JUDGE MAY: Well, supposing, and I don't see why there should be any difficulty about this, but supposing we were going to sit through to the recess, which is at the beginning of August. When do you anticipate that your case would be closed?

MR. RYNEVELD: Well, again, based on these -- based on these estimates and -- it's very difficult to anticipate when the case would be closed, because we don't know to what extent there will be an involvement in cross-examination.

JUDGE MAY: No. We accept that.

MR. RYNEVELD: Yes. My best guess would be approximately the end of September, with the -- with the August break in between. It may be that we will be done by the end of July, but --

JUDGE MAY: The Trial Chamber obviously has discussed this case, ²⁴⁰ and I can tell you that we have in mind a shorter case. The first matter is that, as far as the various incidents are concerned, you should aim to call one witness. Now, that, having had a look briefly at this, appears to be what you are doing.

MR. RYNEVELD: It is.

JUDGE MAY: But we were also having in mind -- have in mind that it may well be possible to cut down the number of written statements that you tender. If you have a witness which -- who covers most of an incident, that should be sufficient. What we have in mind particularly is, of course, in general there should be no repetition of evidence.

MR. RYNEVELD: Repetition --

JUDGE MAY: Meaning repetition.

MR. RYNEVELD: Yes, as opposed to corroboration. I understand what Your Honour is saying.

JUDGE MAY: It will, of course, depend on the way in which the case develops, but if it appears that there is no challenge to a particular part of the evidence, then there will be no need for it to be repeated. If, of course, there is a challenge, then that's a matter that may require repetition or corroboration.

MR. RYNEVELD: I can tell the Court that we will, of course, review these matters again, but for each of these sites, not one witness tells the entire picture, and we have called the fewest number of witnesses who, when supposed together, would deal with the substance that we feel needs to be covered. In other words, just like a jigsaw puzzle, each witness will give a part of it, and in order to show, for example, a ²⁴¹ deportation site or a killing site, it may require the evidence of three or four witnesses in order to adequately explain it. Not one witness might explain it all.

We will, of course, review that once again, and if in fact there are witnesses who are repetitive, we would not call those by way of 92 bis. In other words, the 92 bis number could be reduced. But as I now understand the situation, we have already attempted to do that, and some witnesses give certain parts of their evidence which are necessary, in our respectful submission, to prove a particular ingredient of the count.

It -- that's about all. We will review that further. Now, it may be that I have been pessimistic in giving the Court a date or a time at which we think that the Prosecution case will close, but my experience here has been that you -- that you can't hurry these matters. There is usually cross-examination, and matters do take time, and there are usually legal issues that come up in between. Parts of days are lost by arguments, legal arguments, and we haven't accounted for that in this timing, so we're just calling witnesses back to back. So perhaps I'm being somewhat pessimistic, but to be honest with the Court, I can't see us closing before the end of July.

JUDGE MAY: Can I make sure that I understand this document and your figures?

MR. RYNEVELD: Yes.

JUDGE MAY: In the document, there are numbers for the live witnesses, and there appear, at the moment, to be 90 live witnesses that ²⁴² you've numbered, with the possibility of a further 20.

MR. RYNEVELD: Yes.

JUDGE MAY: Would that be right? That's your 110?

MR. RYNEVELD: That's my 110.

JUDGE MAY: Then we have your 92 bis, your written statements, and they number up - is this right - to 123?

MR. RYNEVELD: That is absolutely correct.

JUDGE MAY: Let me raise one other matter with you which concerns the expert evidence. Now, I think to date that the -- what has been disclosed is a total of nine potential experts in your bundle which we've had. I note that you now refer to 11, but you've only disclosed, so far, nine, and there are two of those which I am concerned about.

MR. RYNEVELD: Yes.

JUDGE MAY: Where there is, as there is here, an accused who is representing himself in person, it will obviously be necessary for the Trial Chamber to take particular care about the admissibility of evidence. I make that point in a preliminary way. And looking at the details - and we've only got that at the moment, of these experts - I notice that you're intending to call a military analyst from the Prosecution to describe the organisation of the Serb forces in Kosovo. We will have to look in his case, obviously, at his qualifications to deal with that.

MR. RYNEVELD: Yes.

JUDGE MAY: So I put you on notice of that point. The other matter is that, according to your list, you're going to ²⁴³ call somebody who is simply identified as a historian who will apparently deal with the historical context of relations between Serbs and Albanians in Kosovo.

Now, again, let me put you on notice that we shall look very carefully at this sort of evidence. While it's right that historians have been called before this Tribunal, there must be a limit to the amount of evidence which we can obtain or have put before us, particularly in the light of history. The amount of historical evidence we will want to hear is very limited.

MR. RYNEVELD: I can appreciate that, and I am aware, of course, of those kinds of -- witnesses having been called in other cases in the past and sometimes they've consumed four or five days of trial time. That is not our intention in this case. It's to give a thumbnail sketch, basically, to give the Court a perspective of the background of the events leading up to the conflict in Kosovo, because as my learned friend Mr. Nice has explained, Kosovo -- Kosovo are the bookends, basically, of the conflict, and the Court needs to hear the historical perspective of what occurred. And I'm sure my learned friend Mr. Nice can elucidate further on that, should you choose.

I thank the Court for alerting us to that. I might say that in response to the military analyst, there is again precedent for military analysts being called in other cases at this Tribunal, but I appreciate what the Court has said, and we will certainly ensure that this individual be -- his CV -- that he is a qualified witness, and we will attempt to qualify him. ²⁴⁴ If I might move on, if the Court --

JUDGE MAY: We'll deal with these issues now, and we'll then move on to disclosure, unless there's something in relation to disclosure which relates to what you've said already. I mean, I have in mind dealing with that as a separate issue.

MR. RYNEVELD: Yes. At the moment, we're still dealing with the order of the witnesses.

JUDGE MAY: If there's something else you want to add, of course.

MR. RYNEVELD: Yes. I want to deal with the issues (D) -- (E) is disclosure. (D) and (F) then, perhaps. (D) was the number of witness statements or transcripts of prior testimony sought to be admitted and I think are probably dealt with in these discussions, that there are some 123 witness statements. But I did not discuss with you the proposed timetable other than, of course, the fact that the proposed timetable is shown in the list of witnesses, that the first of those would come, according to our schedule, on the 19th, in other words, on the day that we propose to tender them.

Now, we had hoped to have these 92 bis statements available before trial. Unfortunately, because they have to be translated into Albanian, we don't have those available at this particular time, but we are told that they should be available in time for when we propose to deal with them as indicated in our order of witnesses.

The final point under that heading, the Court also asked whether there are any transcripts or prior testimony sought to be admitted. To my knowledge at this point, there are no transcript -- there's no transcript ²⁴⁵ evidence of prior testimony. This is, of course, a subject matter that has not been litigated before at this Tribunal.

If I may touch briefly on point (E) before Mr. Nice deals with the balance of the disclosure issues --

JUDGE MAY: We're going to deal with the witnesses first - that's what we have in mind to do - and make some rulings or at least consider the issue before moving on to disclosure. But help us with the protective measures.

MR. RYNEVELD: Yes.

JUDGE MAY: At the moment, there are 29 orders in relation to witnesses with pseudonyms.

MR. RYNEVELD: Correct.

JUDGE MAY: One thing we're going to have to consider is when it will be right to -- for you to disclose the identity of those witnesses. In the past, we've made orders, I seem to think in some cases of 30 days prior to testimony, this sort of thing, although occasionally we have made shorter orders.

What are you asking us to do in this case?

MR. RYNEVELD: Well, this is tied in with a comment that my learned colleague made earlier, and that is the issue that he just raised that he wanted to deal with about whether or not it may be appropriate to disclose those names or protective measures to someone who has stated that he does not accept the authority of the Court, and perhaps --

JUDGE MAY: Let us deal with that.

MR. RYNEVELD: Perhaps I'll give the floor to Mr. Nice, then. ²⁴⁶

JUDGE MAY: No. What we'll do is this: We'll deal with disclosure altogether. At the moment, we'll simply deal with these orders for witnesses that you're applying to us to set. The Court will consider the matter.

MR. RYNEVELD: Thank you.

[Trial Chamber confers]

JUDGE MAY: Mr. Ryneveld. We've considered the submissions. As I say, we have, of course, had the opportunity of considering the matter generally and, for the purposes of the Rule, we consider that a total of 90 witnesses should be sufficient, having regard to size and complexity of the case, but that will not prevent you making the application during the trial for additional witnesses on good cause for challenge if the witnesses come forward. But you should work on the basis of 90 as being sufficient and see if you cannot cut down some of the other witnesses in that regard. And if you go above that number, then you'll have to justify it. That will be the order.

Likewise, would you look at the 92 bis statements. We're not going to make an order in relation to them, but you have to consider the complications that are caused by very large numbers of witnesses in the conduct of the case. So again, look at that and see whether you cannot cover these incidents with a more limited number of witnesses. With regard to timing, we'll be dealing with the scheduling of the case in due course, but it seems to the Trial Chamber that you should be able to get through your case by the recess, the date for which is by no means certain but will be towards the beginning of August. So that, ²⁴⁷ effectively, gives you five months and more.

So those are our orders in relation to the witnesses, subject, I should say, of course, to anything anybody else has to say.

MR. RYNEVELD: I appreciate that.

JUDGE MAY: But at the moment, that's the order.

MR. RYNEVELD: Thank you, Your Honour. So 90 witnesses of the Prosecution's choosing, I take it, with --

JUDGE MAY: Yes.

MR. RYNEVELD: Thank you. Just the number is limited.

JUDGE MAY: Yes.

MR. RYNEVELD: Thank you. And should we -- just so I'm clear, should it become necessary to exceed that number, we are at liberty to bring on an application justifying why it's necessary.

JUDGE MAY: Yes.

MR. RYNEVELD: Thank you. Might I very briefly deal with the two other matters before turning the floor to Mr. Nice, and that is -- I'll deal with (F) next, if I may. The current status of translation into one of the working languages of the Tribunal of all documents to be produced as exhibits, may I deal with that next? Thank you. As of yesterday, last night, 10.00, it appears that 86 per cent or more of all of our proposed exhibits are now available in English. As the Court is aware in our 65 ter filing, we listed a potential 1471 exhibits. Of those, roughly half, 700 or so, are already in English and the rest have been with the translation department. As of yesterday, 159 documents were still outstanding with the Translation Unit, but we are hopeful that ²⁴⁸ those matters should be available to us before the commencement of the trial.

And finally, the current status of disclosure before my learned friend deals with the issues of disclosure that the Court wants to raise, we've already notified the Court under 66(A)(i), that was complete as of the 29th of November, and under 66(A)(ii), we have summarised that in our report to the Court filed on the 4th of January at paragraphs 5 and 6, but in essence, 72 witness statements were disclosed in B/C/S by the 29th of November. On December 19th, 24 more witness statements of the proposal 43 crime base witnesses were disclosed in B/C/S, and an additional 21 statements pertaining to witnesses who have been granted protective measures by the Trial Chamber still exist and have not yet been disclosed, subject to whatever rulings you might make today regarding that. So they are there and available.

So the balance of the statements under 66(A)(ii) are still with the Translation Unit and we hope to receive them, we're told, by the end of this month. So by the end of January, we hope to have all our exhibits into B/C/S -- or into English or a language for disclosure.

JUDGE MAY: As far as the exhibits are concerned, the Trial Chamber will simply make this order, that no exhibit is to be admitted into evidence which has not been translated. The matter seems to be in hand.

I'll come back to exhibits in a moment, but let us deal with the disclosure as far as the witness statements are concerned. We've seen your report, and we've come to this conclusion, again subject to anything ²⁴⁹ which anybody wishes to raise in due course. We shall order that the statements of the live witnesses are to be disclosed prior to trial. Now, that means that those statements must be given priority. If statements are not disclosed, we will consider whether the witness should be called or not. And in any event, no witness is to be called until 30 days have elapsed since the disclosure of his or her statement. And we'll come back in due course to deal with the question of disclosure of identity. In the case of the 92 bis statements, the witnesses who are subject to that provision, the Rule provides that no application shall be made to adduce the witnesses under that Rule, their evidence, until 14 days after disclosure. Perhaps I could remind you of that.

MR. RYNEVELD: Do I -- sorry, just for clarification, do I understand Your Honour to say that, for example, the first witness to be called on the 13th of February would have to be disclosed 30 days -- in other words, by Friday?

JUDGE MAY: Yes.

MR. RYNEVELD: Yes. Thank you. That's my interpretation. I just wanted to make sure I have that right.

JUDGE MAY: So it's clear. Perhaps while you're on your feet, Mr. Ryneveld, we could deal with some matters concerning the exhibits. I note that at the moment it's 1471 exhibits that you've disclosed. There are concerns about the admissibility of some of these exhibits. First of all, we note that you have disclosed 55 video recordings, and you've indicated what the relevance is, but looking at them, it appears that many of them contain very much hearsay and opinion evidence or are irrelevant. ²⁵⁰ This is at first glance. And while it's right that the Tribunal has admitted clips of news broadcasts and the like and some discussions and some television programmes, there are a number which are a cause for concern. What I will do is simply number them for you, for you to consider --

MR. RYNEVELD: Thank you.

JUDGE MAY: -- their relevance and admissibility and in due course the matter can be argued. The numbers are these, the line numbers from your bundle: 2478 to 2488, 2510 and 2511, 2514, and 2517 to 2523. If you would look again at those, and if you wish to adduce them, we'll hear argument about it.

The other area which is a matter for concern is in the policy documents, as they're described, and I have in mind 187, about, newspaper reports. I exclude the reports from the police or the army organs to which you referred, but there appeared to be about 187 others. And again, I would ask you to reconsider the admissibility of those reports, their relevance, particularly in a case where the accused is not represented. There are similar concerns about the books which you refer to, and they are lines 1170, 1199, 1560, and 2269. Likewise, there are two transcripts of evidence which appear in your list of exhibits. I don't know what you propose to do about those, but you may like to look at them and consider whether you want to go on with them. On the other hand, the military and police reports and orders, the official reports and the monitoring reports are usually admitted in the Tribunal, and in our view at the moment prima facie are admissible, ²⁵¹ subject, of course, to any objection being made.

MR. RYNEVELD: Thank you, Your Honour. I might tell the Court that we are constantly revising and reviewing these documents that have to be filed on the 26th of November, and I do not anticipate entering all of those in any event. So we will be cutting down our exhibits lists or our exhibits that we anticipate being entered by approximately half.

JUDGE MAY: Thank you. The transcripts of evidence are at 1206 and 1218.

MR. RYNEVELD: 1206 and 1218. Thank you.

JUDGE MAY: Unless there are any other matters you want to raise, Mr. Ryneveld, thank you.

MR. RYNEVELD: Thank you, Your Honour. Mr. Nice.

MR. NICE: It will be helpful to deal with the issues I referred to earlier in a slightly different order, starting with disclosure because the Court has been focusing on that.

Until this trial, and unless I'm wrong about this, every accused and the representative of every accused has respected the Tribunal and has accordingly held him or herself out expressly or by conduct as being amenable to orders of the Court. This is the first case where someone has failed to expressly recognise the authority of the Court, and therefore it's the first case where thought has to be given by both the Prosecution and, with respect, Your Honours to the issue of whether such a person is entitled to details withheld in the interests of the safety of witnesses, of their identity. ²⁵² We have conducted some review of other jurisdictions to see if there's any guidance. None has been found. In our submission, this is a difficult problem because although of course the Court's in a position to say, "We will make an order and breach of that order may bring with it a sanction" and of course the accused will know if such an order is made with the threat of a sanction, that he is at risk of whatever sanction may be imposed, but the Court will appreciate that it is dealing with someone who has no respect for the order that it makes. We know that the accused declines, it appears, to deal with or to receive in a formal sense the materials that are served on him, but I understand that the materials are in fact available to him in a room set aside for his use.

In these circumstances, we ask the Court to consider withholding details of the identities of protected witnesses from the accused until the moment when the witness enters the courtroom, unless the accused is prepared to undertake to the Court to honour the restrictions that will be imposed or would be imposed on him by the order that the Court would make.

We draw to your attention that although, as I have already said, all other accused and their representatives have respected and recognised the Court, nevertheless, there have been several examples of specific orders being issued against -- not against but to counsel, imposing on them and detailing restrictions as to how they should deal with material. For example, the Court will recall in other cases orders saying specifically to counsel not to be further communicated to anyone else ²⁵³ save, that is, essential for the preparation of the defence, orders to that genera effect.

Thus with that in mind, we invite the Court to consider the possibility of simply saying no provision of details unless the accused is prepared to give an undertaking

If, contrary to that, the Court is of the view that the details must be provided at some stage before the witness enters the courtroom, we would invite the Court, because of his failure to recognise the Court and its orders, we'd invite the Court to say that the time period should be a very short one and would invite the Court to consider a period of no longer than two weeks.

JUDGE MAY: Speaking for myself, it's difficult to see how the accused could begin to prepare cross-examination if he doesn't know the identity of the witness.

MR. NICE: That is a problem.

JUDGE MAY: He could begin to prepare, of course, but how he could prepare fully that cross-examination if he doesn't know the identity, and since he's representing himself, he must be in a position to be able to do that.

JUDGE ROBINSON: Might I just add, Mr. Nice, to what the Presiding Judge has said, which I fully endorse. I've had occasion to say before that in my view, the fact that the accused has said that he does not recognise the Court is of no legal consequence to the Court. Nothing turns on it. And in my view, it is not a proper factor to be taken into account in questions of disclosure, particularly when it would jeopardise ²⁵⁴ the preparation of his case.

We have dealt with the jurisdictional issues that have been raised by the accused. I think it would be something of a contradiction for us now to adopt a position which is based on the accused's so-called non-recognition of the Court. It is not a factor of which this Chamber should take account, in my view. It has no legal consequence and nothing turns on it. And in this case it would be wholly improper, as the Presiding Judge has said, because it would jeopardise the preparation of his case.

What we have to do, regardless of whether he accepts the jurisdiction of the Court, regardless of whether he recognises the Court, we have to ensure that he gets a fair trial. That is our fundamental obligation. And he will not receive a fair trial if the details of the identity of witnesses were not disclosed to him. Now, that's my position.

JUDGE MAY: I think in some cases, or I seem to recollect making orders which were as short as ten days for sensitive witnesses.

MR. NICE: Your Honour has indeed made orders of that brevity. And if I may just respond to the helpful observations of His Honour Judge Robinson. Of course, the fact that the accused says he doesn't recognise the Court has no legal effect on the status of the hearing or indeed the power of the Court's orders. Nevertheless, it may be - and this is the reason I press the Court to consider the issue and then consider the brevity any order made for the provision of names - nevertheless, the fact that someone says he doesn't recognise a Court and ²⁵⁵ its orders may increase, and legitimately increase, the concern of the Court and indeed of the Office of the Prosecutor that orders made may be breached, and that concern then has to be set beside our joint interest in, and concern for, the protection of witnesses.

JUDGE ROBINSON: Yes, I appreciate that. You seem to be raising it more as a pragmatic matter.

MR. NICE: Yes, indeed.

JUDGE ROBINSON: Not a legal issue. But nonetheless, I think the overriding issue is the fair trial of the accused. We may be able to consider a period of ten days, because there is precedent for that.

MR. NICE: And Your Honour --

JUDGE MAY: We have in mind ten days.

MR. NICE: I'm grateful, Your Honour, and I'm not going to press the matter in those circumstances.

Can I say two things about the list with that in mind? I should have said this earlier. First, the list being prepared and distributed this morning, experience of these trials shows that documents not properly filed sometimes become relevant at a later stage and then can't be found. We will file this so that it has a proper registry number and then it will form part of the record.

If the Court looks at this document, the first witness for whom protective measures has been granted appears on the 20th of February, K19, and accordingly, under the order of the Court, the statement details of that witness will be disclosed a couple of days before the hearing begins on the 12th of February, and we're grateful for that. ²⁵⁶ I don't think there's anything else on the disclosure that I'd like to raise.

MR. KAY: Would the Court forgive us, because it's difficult coming back to a subject once it's moved on, and there are concerns for the amici on this issue of disclosure. We don't think it would be proper for us to be subject to any ten-day provision, because it would hamper our conduct of matters in preparing for the trial.

JUDGE MAY: Well, let's deal with that now. What do you propose in relation to the amici?

MR. NICE: A longer period, in our respectful submission, is appropriate. I haven't had a chance to discuss these matters -- I've had a chance -- we haven't, in the event, taken the opportunity that was available to us over the past few days to discuss this particular issue, and I don't know what period in time the amici are after.

JUDGE MAY: Thirty days?

MR. KAY: Thirty days is the usual, and it would be unfair to us to have any shorter period in view of the preparations that we have to undertake.

JUDGE MAY: Very well. Thirty days.

MR. NICE: Yes. We have no objection to that at all. Can I move to the next short topic that I wanted to raise, and that relates to what the accused has said and may say on future occasions in court when invited by the Court to respond to issues or to, in due course, deal with witnesses.

I have conducted some rather informal research amongst my ²⁵⁷ colleagues who practice in the civil system where those on trial have more regular opportunities to, and frequently do, speak to the Court between witnesses, at the end of every witness, and so on. A different experience from those of us coming from the common law background. The consensus view from the number of colleagues to whom I've spoken is that a caution may not be in any sense essential in such systems before what is said by the accused can become material in the case for the Tribunal to consider in due course, but I think there is consensus. They of course probably never having had to deal with a case of exactly this type before themselves, there is consensus that it would be prudent for the accused to be cautioned either once, or maybe more than once, that what he says may become material in the case.

I discussed this issue with Mr. Wladimiroff over the telephone a couple of days ago. I think he concurs, although I think his view may be that the caution should be more regular than just once or on a few occasions. But that apart, I think we're in agreement.

JUDGE MAY: Perhaps you can develop it. What is the form of the caution and why do you say it's necessary?

MR. NICE: The form of the caution would, I think, have to be along the general lines that what is said in these proceedings may become material for the Tribunal to consider in due course when making its decision on the indictment.

Why is it necessary? I don't believe it is necessary in the sense of essential or legally necessary, but it is probably desirable. Why is it not essential? It's not essential for this reason: If ²⁵⁸ in the course of one of these hearings the accused were to say something adverse to his interest or even that might constitute an admission, then subject to the general rules of exclusion, such observations by him would be provable before the Tribunal even if the Tribunal hadn't heard them themselves, and could become part of the evidence in the case, just as if he made such remarks elsewhere and had been over-observed or overheard by a witness making them. So it's not essential, and that, I think, is the consensus view of those to whom I've turned for advice. Is it advisable? Sorry, there's a second reason why it's not essential. When he was arrested, he was indeed given his rights at that time by the investigator who dealt with him, as I understand it.

JUDGE ROBINSON: What was the precise caution given then?

MR. NICE: I haven't got that with me. We can find it, but it would be the caution in accordance with the Rules. Is it advisable? In our respectful submission, yes, it is. A man on trial is, of course, facing particular pressures which may lead to him being incautious in what he says. It is regarded in the investigative stage and generally at the stage where a person is given the opportunity to give evidence in a court, it's regarded as wise to alert him to the seriousness of the position in which he finds himself and thus to caution him.

JUDGE ROBINSON: Mr. Nice, do you make a distinction between submissions which may be made by the accused in the same way that submissions may be made by counsel for the Prosecution and evidence that he gives? ^{259 BLANK PAGE 263}

MR. NICE: It may well be that the Tribunal, without guidance from its own Rules, would in due course make some distinction as to the weight that would be attached to sworn testimony as opposed to observations made in the course of submission. That will be for the Tribunal. But no, we don't otherwise make a necessarily category or categorical decision between what he says in the course of observations, perhaps in the course of legal argument, and what he would say when giving testimony pointed to factual issues.

If in the course of legal argument, and this has been our experience of the accused, he elects to say things that relate to them -- to the facts rather than to legal issues, why, then, things he says are as much material in the case, subject to any difference in weight that would be attached to them, as if he said those things in the course of giving evidence.

But, Your Honours, we are concerned that the accused should appreciate, as he will appreciate from what I've been saying, that he should appreciate in a caution coming from the Court that what he says will be material in this trial and, therefore, in due course may be part of the material that we will argue should be held against him.

[Trial Chamber confers]

JUDGE MAY: Yes, Mr. Wladimiroff.

MR. WLADIMIROFF: Thank you, Your Honour. May I touch on the issue as well? The amici make a distinction between two issues which I think are essential in this matter. We feel that one should make a distinction between a response to any question and, therefore, give a ²⁶⁴ caution that someone is not obliged to answer, on the one hand, and the spontaneous submission, on the other hand.

If you look into the Rules, you will find in Rule 42, section (A)(iii), that the accused has the right to remain silent during the investigation and to be cautioned that any statement the suspect makes shall be recalled and may be used in evidence. Now, here it doesn't seem that this distinction is not made, because one could read it either as a right to remain silent and if you answer to any question, that is a statement that may be used in evidence, or one could read it in a way that any statement, irrelevant whether there was any question before asked to the accused, any statement should be cautioned.

We feel that if the accused is asked in court any question, of course he should be cautioned. There is no doubt in my mind that that would be the proper approach. Therefore, we also feel that is the obligation of the Court to caution him. But if he's making spontaneous submissions, then we feel that one caution will be sufficient to deal with the matter, and that's the distinction we make. So we have a more simple approach than the Prosecution.

JUDGE MAY: Thank you. We'll consider this.

[Trial Chamber confers]

JUDGE MAY: We'll consider this and make an appropriate order in due course.

Yes.

MR. NICE: The last of the topics that I need to deal with, apart ²⁶⁵ from touching on the other cases and their state of disclosure which I'd like to deal with before the end of morning, the last topic is Rule 68, disclosure generally as it applies both to this case and to the other cases.

The Court will have had, and I hope will have had an opportunity to consider the report with its annex by Mr. Reid. That report reveals the quantity of material held by the OTP, the procedures that have to be gone through to make the material susceptible to electronic search, the procedure adopted for electronic searching of the material, and in general terms, the procedures applied thus far in order that the OTP can comply with its Rule 68 obligations as thus far understood. If the Court would be good enough to go to page 8 of the document, I can summarise the position in which we find ourselves at the moment. The Court will recall that there had originally been a project planned according to the very broadest of criteria for searching under Rule 68. Following the last hearing where I referred to the problem and suggested that the amici might want to be involved in this issue, there was a meeting where narrower criteria were identified very much on an approximate basis with only a short time for consideration. Those narrower criteria would still require the following human resources to complete Rule 68 disclosure on that basis: It would require the work of, let me put it in these terms, 14 person years to get the material out and probably a similar period of time or a little more to review that material, so something approaching 30 person years of work. So that if I had 30 people, of course we have nothing like that available, ²⁶⁶ it would take a whole year to go through that exercise, 60 people, six months, and so on.

This problem, of course, is a reflection of the quantity of material that the OTP holds and is a reflection of the fact that no doubt starting at a time when much smaller quantities of material were available, it was thought that the broadest, most generous approach to Rule 68, was what should be pursued, applying generous parameters to all the material. It may be, and I hope that the document is helpful generally, not just in relation to this case, it may be, now that the Chamber knows precisely what is involved in these searches, that this general approach will have to be reviewed by the organs of this institution, but that doesn't solve the immediate problem. Before I turn to how we may address the immediate problem, the Chamber will see at the end of the report that we have made various suggestions, but they're liking to be suggestions for the future rather than for this case, including suggestions which we hope are not deemed impertinent as to how the Rule change -- how the Rule may itself in due course be changed.

For this case, may we invite the Court to consider the following: First and principally this: The accused is likely to know if and where exculpatory material that may be in our possession may be located. If he can be invited, and if invited, if he responds to identify where he believes exculpatory material may be found, then that will enable us to focus our search and we will do so. And I gather that not dissimilar exercises have taken place in the Plavsic case. Not under Rule 68, but ²⁶⁷ under, I think, one of the other provisions where requests have been focused by the Defence leading to focused examination by the OTP of its database of material.

If the accused is not disposed -- first of all, if the Court is disposed but the Court -- but the accused is not disposed to respond to any such invitation, then we are left to our own devices, and it is our duty, of course, to comply with Rule 68 so far as we reasonably can. The amici tell me this morning that following the last meeting at the end of last year, they have given further thought to the matter, and I think Mr. Kay will be able to assist you with that. All we will be able to do, and we would do this with their assistance and cooperation, is to focus our searches even more narrowly with an eye to the overall time scale of the case. Our resources are limited in human terms. We will be able probably to work out roughly how many person days of work are available to us for this case to perform the Rule 68 disclosure, and we can, perhaps with the amici, and perhaps indeed with the assistance of the Tribunal, not immediately now but later, we can identify the appropriate parameters to apply.

One last point on this before I perhaps sit down and allow Mr. Kay to develop the position. It seems to me it might be helpful, both to the amici, to the accused, and to the Tribunal, to have some catalogue of the materials that we have. A large percentage of our materials are either Rule 70, so they're not capable of being listed in any public way. Another very large percentage is not susceptible to be categorised or catalogued, but a significant part of the material is capable of being ²⁶⁸ catalogued and I have brought a list of such catalogues with me today for distribution. And this may be helpful because, of course, if an accused knows or indeed if the amici knows that we have a particular collection of documents seized from this location on that particular date, then it may stimulate either the amici or the accused to say, well, within that here are some documents that might indeed be favourable to the accused's case; let's search those.

So doing the best I can to help this process, I have got that document available for distribution if people would like to see it.

JUDGE MAY: It may be sensible to file it in due course.

MR. NICE: Certainly. Your Honour, that's all we can do. One other point on how we meet our Rule 68 disclosure obligations which I don't think is necessarily spelt out in the report, and it's this: Whenever a witness comes to give evidence, we of course have to prepare a binder of materials that relate to that witness. We conduct as exhaustive a search as we can, and that material is gone through for several reasons, obviously, to see what the witness is going to say in addition to what we already know he is going to say, and so on, but at that stage anything that is then judged to be Rule 68 is turned over, and we take the view, and I'm sure this is correct, that that process has to be given priority.

So of the resources available to us from now on and through the trial, those resources will be used in priority on the witnesses who are coming and checking on anything that is Rule 68 for those witnesses. Prior inconsistent statements is just one example of the sort of material ²⁶⁹ that it is plainly right that we focus on and ensure are made available to an accused. But that exercise necessarily restricts because it reduces the amount of labour available for the other broader exercise.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Nice, I'm interested in the last approach you just outlined, where you individualised the search in relation to a prospective witness for exculpatory material.

MR. NICE: Yes.

JUDGE ROBINSON: As you say, Rule 68 has given rise in the past to a lot of debate, and it may be time for the Tribunal, institutionally, to consider this Rule, but until that is done, we have to work with it. It is, essentially, an obligation imposed on the Prosecution, and in most legal systems, it is a Prosecution obligation to disclose exculpatory material. The proposals that you have made would involve, in some respects, collaboration with the -- with the amicus. I see the matter essentially as a Prosecution obligation and would not wish to depart from that, and it may be that the approach that you outlined of discharging the obligation in a piecemeal fashion in relation to each individual witness as the witness is brought might be satisfactory, and that would be in contradistinction of the obligation which appears to be imposed by Rule 68 to discharge the obligation in a more general way at the beginning of the trial. I think that is a matter which the Chamber could consider.

MR. NICE: Thank you.

JUDGE MAY: Of course, the accused will have heard what you've ²⁷⁰ said, and if there are areas in which he thinks that there are searches which can be made to produce material favourable to his case or he knows of particular material, why then he's only got to indicate it and the searches can take place, and he's heard you say that. As for the remainder of the obligations under the Rule, it amounts to this: that you can only do the best that you can. And I don't think that anybody expects beyond that. Clearly you must carry out, as you referred to it in your document, a good-faith search, and the Court and the Tribunal generally is reliant on the good faith of the Prosecution. But beyond that, it's difficult to think of any order under the present Rule which we could make, but we'll hear Mr. Kay.

MR. NICE: I'm grateful. Before I sit down, just this: I will file the document headed major collections of the Office of the Prosecutor. I do have a document that reveals the search criteria for both the broadest and the narrower searches that were contemplated. I can make that available or I can file it, but I'm reluctant to add to the burden of paper that's already heavy in this, as in all cases, unless the Court particularly wants it. But I can explain the criteria if the Court wants to hear it.

JUDGE MAY: Yes. I understand Mr. Tapuskovic also wants to address us on this.

MR. KAY: Yes. I propose to deal with the matter first and then Mr. Tapuskovic will also address the Court. It's merely this: that the scale of this task under the Rule 68 obligation has only gradually been, I think, comprehended by all the parties in the Court as to the scale of the ²⁷¹ task. As a result of that, we met the Prosecution and had a discussion and since then we've drafted our own strategy document of the areas which we see, having read the supporting material, the preliminary Rule 68 procedure, as to which we see throws up likely issues within the case. To a certain extent we're second guessing, but again, it's the best we can do from the materials so far supplied.

What we proposed was that Mr. Tapuskovic, as a Serbo-Croat speaker, as well as with his assistant who speaks English, are better suited to assist the Prosecution with this task. It remains their obligation, but they're inviting cooperation from an external party which we feel we should take up. And the solution that we have developed among ourselves, and agreed on this yesterday, will be to, so to speak, make that a responsibility under the strategy document that we've drafted so that he can then focus upon with the Prosecution. We have a resource problem ourselves in relation to this because we are in negotiations with the Registry as to the input of the resources to help us because we want to be ready by the trial and have matters under control during the trial. I don't want to get the Court involved in this yet, but to assist us to perform this task, we need the assistance of the Registry and that is a resource implication that we're hoping to thrash out with them today.

But having drafted the strategy document, we feel that a more focused search will, so to speak, sort out the chaff from the wheat, and one can see from the preliminary Rule 68 disclosure that vast areas of it would not be of concern. I can appreciate why the Prosecution have ²⁷² disclosed it, but they won't, so to speak, help matters within the focus of the trial itself, and we hope to be able to provide a more focused search.

Perhaps Mr. Tapuskovic can take matters a little bit further.

MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honours. When we discussed this problem yesterday, I really did not understand this as being something by way of assistance to the Prosecution. From this latter document, or rather from the brief that we received on the 4th of January from the Prosecution, 2002, I learnt about the amici curiae, and I learned that the government of Serbia, the government of the Republic of Serbia, in fact several days ago or, rather, in December last year, sent to the Prosecution 27.000 pages relevant to the activities of the liberation army of Kosovo, and I considered that it would be very interesting to study this precisely in view of the strategy that was mentioned here. You heard a moment ago that if anybody were to delve in those problems himself, it would take him 14 full years. So 14 years, that would be an absurd situation, which anybody would have to face to deal with just one problem of this kind. But learning of that piece of information, that there is documentation regarding the activities of the liberation army of Kosovo on 27.000 pages, I did consider that the study of those documents could be highly beneficial for this strategy of ours, the strategy that we have devised. That is the first problem. And the second problem, and I would like to take this opportunity to present my views on it with respect to what the Prosecution said, when we come to a caution, the caution that should perhaps be given to the ²⁷³ accused at certain points during the trial. I do understand that cautions could be beneficial and useful if the Court were to address the accused himself on any particular issue, but to issue cautions to the accused at a moment when he is -- defends himself and he has opted to defend himself in person, would restrict and limit precisely this decision to be his own Defence counsel. And as far as I understand it, if you issue a caution when you ask him something, that is in order, but when he himself is dealing with certain questions and that this caution can be used to his detriment, I don't think that that would be in order. Thank you.

JUDGE MAY: Yes. Thank you. Clearly, this is a matter which is going to have to remain under review throughout the trial. If it's necessary, time will have to be given for it. One hopes that it will not hold up the trial in any way. But if new material arrives, it will have to be considered, such as the material that Mr. Tapuskovic mentioned. Mr. Nice, it's time for the adjournment but let me mention something to you which arises from something you said earlier about the witnesses coming into court and producing material, and that is that we would find it helpful to have dossiers produced along the lines of the Tulica dossier, although the reference to the Kordic case, where a dossier was produced relating to events in a particular village, all the information concerning the events in that village were put in a dossier, and that was very helpful. You remember there were rulings about what was admissible and what wasn't. But it occurs to us it may be helpful for us to have similar dossiers relating to the municipalities in this particular case. It may be that you're already doing it. ²⁷⁴

MR. NICE: I don't imagine that will be a problem. I'll report back after the break, but I don't imagine it will and problem.

JUDGE MAY: It's simply a matter of the presentation of evidence. Yes. We will adjourn for half an hour.

--- Recess taken at 11.00 a.m.

--- On resuming at 11.30 a.m.

JUDGE MAY: Yes, Mr. Nice.

MR. NICE: Your Honour, there should be no problem in providing files that are specific to the locations. To assist the Tribunal, I imagine what you have in mind is files containing exhibits already listed, simply collected on a location by location basis, together with such other documents as may relate to those locations, and I'll try to have that done.

That raises one more issue I wanted to deal with this morning, and I'll raise it now. We intend before witnesses are called to provide you with a summary of the witness. As the Court will know from other hearings, those summaries are typically only prepared in the day or days immediately before the witness comes to give evidence because those summaries reflect in part what the witness will have said in the proofing session that takes place a day or so before he gives evidence. We will try and make them of the length most helpful to the Tribunal. I'll return to that in a second. But it will not be possible for us to provide them other than in English. If that creates any problem because the accused, although he understands English and we understand can read it, if it does create pose a problem for the accused, then there may ²⁷⁵ have to be some revision given to that as a plan, but subject to that our plan is to provide them in the format more useful for the Tribunal. There have been various models in the past. There have been those that been short headline points, a couple, three pages, perhaps to a maximum of five for a big witness, designed to enable the members of the Tribunal to scan the documents in advance and to see the topics and in absolute outline what the witness is going to say. There have been longer versions, with which Mr. Ryneveld is in particular familiar from one of his cases, where the document most closely resembles a full or revised witness statement or full proof of evidence. Typically, as we tried it out over the weekend to see how long and how short these documents would be, such a statement of a major witness might become 10 or 12 pages. We're in -- so far as we've got the resources, we will be in the Tribunal's hands if the Tribunal feels able to tell us what it would like. If you don't, my plan would be to put in perhaps something that falls between the two, a document of numbered paragraphs with a heading for each paragraph and then a few words or sentences under that heading giving the substance of what the witness will say.

JUDGE ROBINSON: I think, Mr. Nice, you're on the right track, something between the short and the long. And particularly something of sufficient substance to allow the accused and the amici to look at it and make a determination as to what parts they would object to your leading on. That is one of the advantages of that practice.

MR. NICE: I'm very grateful. If we may take that as the view of the Chamber, then we'll act accordingly. ²⁷⁶ Two other points arising from this morning. The collection of documents Mr. Tapuskovic referred to is a collection that first fell into our possession on two days, I think, in October of last year. It was processed locally so far as could be done, with the help of local language assistance. It is now coming to The Hague where there are a limited number of translators who can deal with the Albanian language, but their time is already bespoke for other projects, not least the 92 bis project. And although it won't be so very far distant before a very significant part of these documents may have some form of summary identifying what they are, I simply cannot tell you when they will be fully processed. Obviously, they're being worked on with all dispatch. Arising from this morning's rulings about the 30 days, the 30-day period before a witness gives evidence, at which time his statement should have been served, I suspect that will simply not be possible if witnesses keep their place as in the list distributed this morning, for there are certainly one or two statements that are not yet ready for service, and I think simply will not be served within -- at the 30-day period. Number 3, for example, is a particular candidate. We will obviously move with all speed to get those statements in as early as possible, but I'm quite sure that the 30-day period will not be possible for all of them as listed at present.

There is then a problem in relation to translation of those documents into B/C/S, and a further problem in relation to any earlier statements, not necessarily inconsistent statements but earlier statements of those witnesses which it's our duty to provide but which ²⁷⁷ themselves will not have been translated into B/C/S. We will have to make our decision about prioritising what is to be translated, and provisionally my view is that we should give priority to the actual statements of the witnesses that are going to come and give evidence, putting to some degree second the translation of any earlier statements that they may have made. And any adverse consequences of this approach will be mitigated by the fact that we'll be able to serve English versions on the amici who will, although of course they don't represent the accused in any way, they will at least be able to identify any problem areas arising from the differences between the statements, even if the accused himself doesn't read the statements or by his reading of them doesn't identify those differences. But that's a problem. It will have to be dealt with on a witness-by-witness basis, and that's my present intention.

That's all I have to say in relation to this case. One other matter so far as the Bosnian indictment is concerned. Disclosure of the materials supporting that indictment is due, I think, by our calculation, on Friday. I've got a full report. I can summarise its effect for you. Nearly everything is already available and, indeed, there are 18 binders waiting for the amici, and I'd ask them to collect them today rather than oblige us to find some other way of getting them to them. They're available in the Registry today.

Insofar as there is outstanding material, it's outstanding simply because of translation problems, and even when we get the translated documents back, we are redacting them, perhaps in anticipation of an ²⁷⁸ order, but we're obviously having to act on the basis that we will be able, in the short-term or whatever term is appropriate, to withhold details of certain witnesses. And subject to that, we think that all this material should be available for the amici and for the accused to then fit into their 18 volumes by the 25th of this month, Friday the 25th. And if we can't meet that date, we will let the parties know. I suddenly remember there's one other topic that I meant to mention, and I am reminded of it by sight of one of your officers in court from an earlier case, the Kordic case.

It will probably be sensible for us to meet with your officers in order to plan how to mark exhibits in the trial, how to number them and so on. That needn't take the Court's time now if you're happy that we should deal with it with your officers on a delegated basis.

JUDGE MAY: Yes.

MR. NICE: We understood, as a result of earlier trials, that although, where possible, a chronological numbering system can be helpful, the system that was employed in the Kordic trial where we tried to keep a chronological numbering system by using sub-numbers was found to be confusing. And if that's the case, we won't seek to do that on this trial. We'll do something different.

JUDGE MAY: Thank you, Mr. Nice. The matter which I want to deal with now concerns the scheduling of the case on which you may want to make some submissions.

Dealing with the dates, first of all. The first matter concerns the dates the 20th to the 22nd of February, the second week of the trial. ²⁷⁹ Judge Robinson will be away on public duties on the 20th and 21st of February. Judge Kwon and I will sit alone under Rule 15 bis for those days. The 22nd of February is, in fact, an UN holiday, so the Court will not be sitting.

Turning next to the Easter break. Friday, the 29th of March and Monday the 1st of April are UN holidays, so the Court will not be sitting. And we shall not sit between the 2nd and the 5th of April; so that is Easter week -- or the week after Easter.

We shall then sit through. There are various UN holidays - and we'll see that the amici get copies of this - there are various holidays during the spring and summer, mostly national holidays here, but they are also taken by the Tribunal.

The recess will take place in August. It's not certain yet whether it will begin on the 5th or the 12th of August. It depends on arrangements being made here. But it will be for a period of three weeks beginning on either the 5th or the 12th, and that matter will be resolved as soon as possible.

There will be a Plenary, I'm reminded, in July. The 10th to the 12th of July is the Plenary, so the Trial Chamber will not be sitting those days.

Turning to the hours of sitting. The hours which have been scheduled for this Trial Chamber are in the mornings. As you all know, the Tribunal will be sitting in each courtroom two trials from February, which means that either the trials sit in the morning or they sit in the afternoon. And we have been allocated the mornings between 9.00 and ²⁸⁰ 1.45. And it may be convenient if I deal with the hours so that people will know what they are. We propose to sit between 9.00 and 10.30 each day, take a break 10.30 to 10.50, sit again 10.50 to 12.15, a break at 12.15 to 12.35, and the final session 12.35 to 13.45, 1.45. Those hours may be modified occasionally on Fridays to finish rather earlier. Mr. Nice, unless you want to raise anything else about that, I propose to turn to the amici.

MR. NICE: Yes. There is one thing that I'm reminded by your dealing with the timetable to raise. Following discussions with the Victims and Witness Unit who are, of course, faced with preparing five trials or six trials at the same time, it's become clear that we're going to have to - not a very attractive word - batch our witnesses. They're only going to be brought up on one day, and they're going to be returned on a single day. It's not possible to have individual flights on a daily basis.

We're going to work out what we think is the best batching arrangement. It will probably be in on a Tuesday and out on a Thursday or Friday with an overlap for witnesses to be prepared and so on, but probably be all in on a Tuesday and out on a Thursday. It's always very undesirable for witnesses to be kept here too long. We may find ourselves either running short, which we hope not, or pressing the Chamber perhaps to accommodate witnesses in order that they can get out on time, because if they miss one plane, they'll have to wait a whole week for the next return flight.

JUDGE MAY: Yes. Thank you. ²⁸¹ I turn next to the amici. The Scheduling Order of the 4th of January, Mr. Kay, invited you to address the Trial Chamber as to whether there were any extensions to your brief, as it was called, which you considered appropriate. If there are, we will certainly hear you on that topic, and then there are some matters which I want to mention in relation to that.

MR. KAY: And I take that Your Honour is referring to the order of our appointment where specific duties were outlined for the amici in the order of the Court of the 30th of August of 2001. It's an order we frequently looked at, as the Court knows, during the execution of our duties to date, and we cannot think at this stage of any refinements that occur to us that would be possible within the terms of our appointment.

JUDGE MAY: The Trial Chamber has had time to reflect on this, and there are two areas where we would be grateful for your assistance. I shan't invite you to comment on them now, unless you wish to do so. The first is to draw the attention of the Trial Chamber to any defences, for example, self-defence, properly opened to the accuse on the evidence. And the second, more specifically, is to make submissions as to the relevance, if any, in this trial of the NATO air campaign in Kosovo. Mr. Kay, we will -- we have in mind to extend the order. It would obviously be an extension to cover those matters. It may be that during the trial, other matters will emerge on which your assistance would be asked by the Trial Chamber. But of course there is a very general provision for you to assist on any matters which you think appropriate to secure a fair trial, as I remind you. ²⁸²

MR. KAY: In relation to both those matters, I can tell the Court that we had included them under that general provision. And in our strategy document, we have specifically considered both the first matter raised by the Court as well as the second matter which was raised by the accused himself in his address to the Court of last year, and we've included that within one of those areas that we're concerned with in relation to the Rule 68 disclosure.

So both matters have in fact been in our mind, and we have no objection to them being specifically added to the order of the Court.

JUDGE MAY: Thank you. Are there any matters that you wish to raise or any of your colleagues?

MR. KAY: Yes. It's in relation to the Rule 15 bis power of the Court which Your Honour has said would be applied on the 21st and 20th of February. In our judgement, the Court should wait until the evidence has been reached before exercising that power. We don't know what position the evidence will be in on the 19th of February, the day before, or any preceding date, and we advise the Court to hold back from making such an order at this stage which it might not be in the interests of justice appropriate, which is the criteria under Rule 15 bis (A)(ii).

JUDGE MAY: We'll certainly have that in mind, and we'll delay making the order until we see what the position is. But that's what we have in mind is to make the order.

MR. KAY: We take that, and the Court will no doubt hear any submissions from us as appropriate when that stage is reached.

JUDGE MAY: Yes. ²⁸³

MR. KAY: I've got nothing further to raise. I think Mr. Tapuskovic has something to raise.

JUDGE MAY: Yes, Mr. Tapuskovic.

MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honour. I shall be brief, Your Honours. I merely wish to indicate one point. I understand what Judge May said a moment ago when he said that we're not going to have to or indeed be able to deal with any historical studies of the problems that came before all this. I know that in certain other cases, a great deal more attention was paid to issues of that kind, more than necessary. But I do feel that the historical framework which is encompassed by the indictment and -- which is a period of 20 years, which means from 1980 to 1999 -- is too short a space of time for you to be able to look at all the problems that caused the events in 1999. So with all due respect to the Trial Chamber that we should not go in-depth and be too broad, we as the amici curiae would have to inform the Trial Chamber with the historical background over a greater time span and what it was that ultimately led up to the catastrophe that we're dealing with. And I do indeed believe that this would be of great assistance to the Trial Chamber for it to be able to grasp the problem better, because what did happen in Kosovo finally is the product, the end product of something that is rooted far back in history. But, of course, I don't propose that we go that far back in history, but we will have to go back to the Second World War and I think that would be useful, and we should inform and brief the Trial Chamber with certain facets of that question. Thank you. ²⁸⁴

JUDGE MAY: Mr. Tapuskovic, it may be helpful then if you were to indicate in writing to us at as early a stage as possible the matters which you think are relevant so that we can make a judgement about it and so the Prosecution could be informed.

I understand what you say, and I had not intended to suggest any sort of ruling. The only point I have in mind is there must be a limit to the amount of history which we can hear, and we must be bound strictly by the rules of relevance. But it may be that there are other matters which you want to raise perfectly legitimately.

So could you put into writing for us briefly what you consider the parameters of relevance to be so we can consider that, and the Prosecution can have it, too.

MR. TAPUSKOVIC: [Interpretation] Thank you. That was precisely what I had in mind. Thank you.

JUDGE MAY: Yes. Unless there are any other matters that the amici want to raise, I turn now to the accused.

Mr. Milosevic, we've dealt with the other matters. The first matter I want to deal with in your case is that you must be told of the procedure which will be followed at trial, and what I propose to do is read out to you now the form that the trial will take so you can understand that. And the procedure will follow this form, this sequence: At the outset there will be opening statements. The Prosecution will make an opening statement. The accused then may, if he so wishes, make a statement. Any such statement is not under solemn declaration and is not subject to questioning. ²⁸⁵ There then follows the presentation of the Prosecution case. The Prosecution calls witnesses and presents evidence. The examination of witnesses follows this order: examination-in-chief by the Prosecution, cross-examination by the accused, cross-examination by one of the amici curiae, and re-examination by the Prosecution. It should be added in this connection that cross-examination is subject to the control of the Trial Chamber, is limited to the subject matter of the evidence in chief, matters affecting the witness's credibility or relevant to the case of the cross-examining party, and only with the leave of the Trial Chamber may it deal with other matters.

At the close of the Prosecution case, the accused may file a motion for judgement of acquittal, and the Trial Chamber must acquit the accused on a charge if there is insufficient evidence to sustain a conviction.

There then follows the presentation of the Defence case. The accused may make an opening statement, call witnesses and present evidence. He may appear as a witness in his own defence. All witnesses, including the accused, will be subject to cross-examination by the Prosecution and may be cross-examined by one of the amici curiae. If they are cross-examined, the accused may re-examine them. Rebuttal and rejoinder evidence follows. The Prosecution may call evidence in rebuttal of the defence. The accused may call evidence in rejoinder, and the Trial Chamber may call witnesses. There then follows the closing arguments. The parties and amici curiae file final written briefs. The Trial Chamber hears closing ²⁸⁶ arguments by the Prosecution, the amici, and the accused. After the completion of the case, the Trial Chamber retires for deliberations, and the judgement will be announced in public on a date to be notified.

This procedure will be put into writing. A copy will be given to the accused, and it will be available to the public. Mr. Milosevic, the next matter concerns your representation. You have, as we have said before, the right to represent yourself, but we would reiterate that you should again consider being represented by counsel, given the complexity and gravity of this case. In any event, the accused will have to consider whether he wishes to call witnesses or obtain documents and how this is to be done. In this connection, the Trial Chamber will give what assistance it can in the calling of witnesses. We understand that telephone calls are available to the accused. However, if you would like the assistance of an investigator, one could be provided upon request. Meanwhile, Mr. Milosevic, you should consider what witnesses you wish to call, with the proviso, of course, that they must be relevant. And I would add this, that the earlier the Trial Chamber is informed, the easier it will be to make arrangements to secure the attendance of witnesses.

Mr. Milosevic, you've heard that. Now, are there any matters that you wish to raise in relation to your trial and what's been said today?

THE ACCUSED: [Interpretation] Precisely with respect to what has been said today, everything that we have heard indicates that under the ²⁸⁷ aspects of a trial, an operation is under way to reverse the scene and the culprit and accused, and all this is geared towards a construed justification for the crimes committed during the NATO aggression on my country and my nation.

Even the indictment represents proof that what I say is true, that is, further evidence of it, because all the alleged misdeeds committed in conformity of that indictment by the armed forces of Yugoslavia, which I had the honour to be at the head and command, were precisely put into a time framework which is the time framework during which the NATO air campaign and aggression against my country was committed. It is quite obviously the intention to explain how those who defended their families, who defended their children and their thresholds and homes and home country are criminals, are evil people, whereas those who travelled thousands and thousands of kilometres to destroy their houses in the course of the night and to kill innocent people and to destroy maternity wards, hospitals, bridges, railways, that those are the people who, in cooperation with the Albanian terrorists, are responsible for the vast number of victims and for enormous material damage. And with this reversal of thesis, it would appear that they are the good guys and that they should be given the support of international public opinion. To make this absurdity any greater --

JUDGE MAY: Mr. Milosevic, I have already outlined the way in which the trial will be conducted. You will have your opportunity to put your defence in the way which I have described, but now is not the time to do it. It's not the time for speeches. ²⁸⁸ What we're considering is simply the format of the trial and the procedure which will be followed. Now, is there anything you want to say about that? As I say, you will have your opportunity to make your case when the trial starts, and that's the right time to do it, not now. We're not dealing with the substance of the trial. We're simply dealing with the procedure.

Now, is there anything you want to say about the procedure?

THE ACCUSED: [Interpretation] This is not the first time that I have not been given a chance to say what I want to say, but --

JUDGE MAY: You will only be allowed to say -- to make your speeches at the appropriate time during the trial. This, as you've been told, is not the appropriate time. At the moment, we're dealing with the procedure. So confine your remarks to that. When the trial begins, there will be, as I've told you, a time for you to make your statements. Then you can make them and you can make your defence. Now, is there anything you want to say about the procedure or not?

THE ACCUSED: [Interpretation] With respect to procedure, I wish to note that you did not offer a single argument with respect to clear-cut legal facts that I have put forth here with respect to the illegality of this Tribunal which was set up of by a Resolution of the UN Security Council, which does not have any jurisdiction to do so and who was not able to transfer the competencies to anybody. And as legal men yourselves, you know that you can't transfer rights that you do not yourself possess. So at any rate -- ²⁸⁹

JUDGE MAY: Mr. Milosevic, we have already ruled on that, and it's not a matter for further argument.

Now, is there anything else you want to say about the procedure, or we will adjourn?

THE ACCUSED: [Interpretation] Well, if you're going to limit me to speaking about these questions and the questions of procedure, let me say that by natural definition of each and every Court and Tribunal, a Court is always neutral and unbiased and unprejudiced. And look at this Court. Courts should be impartial but look at this Court. The indictment has been raised according to what the British intelligence service has said. The Judge is an Englishman, the amicus curiae is.

JUDGE MAY: Mr. Milosevic, we have listened to you patiently. You have been told a number of times that this hearing is purely to make -- to deal with matters of procedure. You will have a full opportunity at your trial to make your defence and make your statements. That time is not now.

This hearing is adjourned.

--- Whereupon the Pre-Trial Conference was adjourned at 12.15 a.m.