Page 7159

Monday, 17 June 2002

[Open session]

[The accused not present in court]

--- Upon commencing at 9.30 a.m.

JUDGE MAY: The accused is not present today. Word has come from the Detention Unit that he has a fever. It's not known how long he will be away. I anticipate that we will have word this afternoon as to whether we can sit tomorrow. Therefore, the parties should be in touch with the Registry to find out as early as possible whether we are sitting or not. That means that clearly we can't hear evidence or anything of that sort, but I have asked the parties, or such parties as are here, if there are any issues which could be raised in the absence of the accused. There is one issue which has occurred to the Trial Chamber and it's to do with the application for certification for appeal about the summarising witnesses. I know Mr. Nice isn't here, but if there's anything you wanted to say about that Mr. Ryneveld, or indeed about anything else which you think we might properly be able to deal with in the absence of the accused.

MR. RYNEVELD: Thank you, Your Honour. Having prefaced my remarks with I don't know which, if any, of these topics are topics which the Court thinks are appropriate to deal with in the absence of the accused, I have a very rough note of some five potential topics that the Court might wish to consider. They are all administrative, housekeeping types of matters, and I will perhaps give you an idea of what those are and then the Court might indicate whether you wish to hear us on those or not. ⁷¹⁶⁰ First of all is the issue of K13. Your Honours have already ruled on that witness's evidence being permitted by full 92 bis procedure. The question occurred to us whether or not the Court would want us to provide a summary or read in that evidence or if simply have it marked as an exhibit. So that would be one topic. I'm not asking you to rule on that, but that would be one issue.

JUDGE MAY: Yes. Let's deal very briefly with that. Do you make any application about that? Do you wish to read it in in any way? I don't think a summary is necessary since we'll have the statement.

MR. RYNEVELD: Yes.

JUDGE MAY: Do you want to mention it in any way?

MR. RYNEVELD: I raise it at this point but I must admit that in light of the fact that there were considerations about witness protection, to read in that evidence might then lead to issues of identification. Whether or not it would be in public session or in private session, those are issues which we haven't fully determined yet and perhaps we can come back to the Chamber once we've had an opportunity to consider that more fully in terms of whether pseudonym alone would be sufficient or whether or not -- otherwise, I believe that it should form part of the record, and whether it's sufficient to simply give it an exhibit number and the Court will have it or whether or not it's necessary to read it in is an issue on which we'd like to consider our position.

The second issue, of course --

JUDGE MAY: Just speaking for myself, I don't think a summary would be necessary unless you wanted to read in some way a summary. ⁷¹⁶¹

MR. RYNEVELD: Yes.

JUDGE MAY: Again, whatever you do should have in mind, of course, the constraints of time.

MR. RYNEVELD: Yes. My inclination is to simply have it marked as an exhibit. I believe reference to that evidence has been made to the larger audience in terms of the opening, so they have an idea what it's about.

JUDGE MAY: So the simplest course, once you have the package, the 92 bis package, as it's called, for you one day to produce it and it can be marked as an exhibit.

MR. RYNEVELD: That would be my preference. Thank you. Now, that brings us to an oversight on my part with respect to Neill Wright. You will recall the UNHCR. Although we again received the Court's ruling some time ago, I don't recall whether I actually made an application to have that exhibit -- or that statement marked as an exhibit. And as a matter of oversight, I would make that application now, that Neill Wright's 92 bis statement be marked as an exhibit.

JUDGE MAY: It wasn't your oversight. You raised it, and for reasons which now escape me, it was ruled that it wasn't necessary, or it was said that it wasn't necessary. Certainly it was discussed with the Registry because I have a recollection of it.

MR. RYNEVELD: I don't, I'm sorry.

JUDGE MAY: But I agree, I think we should exhibit it. Yes. May we have an exhibit number for that, please.

MR. RYNEVELD: Thank you. ⁷¹⁶²

THE REGISTRAR: Prosecution Exhibit 234.

MR. RYNEVELD: Thank you, Your Honours. The third thing has to do with K12, and since last date, we have received a couple of filings on behalf of Defence counsel for K12, and the thought occurs to us that, in light of the request to postpone contained in that -- in one of those filings by Defence counsel, we were wondering how if at all that affects our date of July 2nd which is presently scheduled for return of K12. Having said that, we need, of course, to schedule other things in the event that does not proceed.

Secondly, our role in these proceedings. The Court has already asked us to provide a report. Does the Court wish us to provide a reply to the filing that you've received, I believe on the 14th? There are two --

JUDGE MAY: I haven't seen it.

MR. RYNEVELD: Oh. I'm referring to a Defence request for delay of contempt proceedings, filed on the 14th of June.

JUDGE MAY: Could you pass it up.

MR. RYNEVELD: Oh, absolutely. And the other is a notice of appeal.

[Trial Chamber confers]

JUDGE MAY: Yes. We will defer the hearing of K12 until the appeal is resolved.

MR. RYNEVELD: Thank you, Your Honours. Two more points, if I may. And again, if any of these matters you deem inappropriate to deal with at this time, at least I just raise them as issues that are sort of ⁷¹⁶³ on my checklist.

I believe last Friday, the issue about fully bis'ing, if we can use that phrase, K24 and K31 was raised. I believe the accused was asked for his position, provided the Court with his position, and the Court was about to rule on it some time today. I don't know whether or not you are in a position to make a ruling and, if you are, whether or not you want to do that in the absence of the accused. But it is an issue that is of some urgency to us because of travel arrangements. Apparently flights for these witnesses are sometimes very difficult to accomplish. We have to have block bookings.

JUDGE MAY: What we haven't yet resolved, as we ought to now, do you have copies of their statements? Can you provide us with them?

MR. RYNEVELD: Not just with us in the courtroom today, but I can tell the Court that we -- it occurred to us that we ought to provide the chamber this afternoon, perhaps, through the Chamber's legal officer, an updated chart containing a detailed explanation of the reasons why we're seeking certain witnesses to be fully bis'd. In other words, it would just add another column to the chart you already have which sets out the details as to why, for each of the witnesses that we're seeking, because that information seems to be missing and the Court has been asking for that on a case-by-case basis. We thought it might be helpful if we provided that without you having to ask for it.

JUDGE MAY: Yes. If you would provide that this afternoon.

MR. RYNEVELD: We will and perhaps --

JUDGE MAY: We'll let you have an answer tomorrow. ⁷¹⁶⁴

MR. RYNEVELD: That would be perfect. The fifth and final point on my checklist is to inquire as well whether the Court might consider it helpful if we were to add to that chart a summary of the current disclosure status with an explanation as to what was disclosed, the date of disclosure, along with an explanation as to why disclosure was made and when. In other words, there were some times when disclosure of statements were made concerning witnesses prior to the commencement of the trial. It may -- the Court may wish to know when, for example, a 92-bis-anticipated witness then became a live witness, and the Court may wish to have an updated indication of disclosure; and if you want, we can incorporate that into the document as well.

JUDGE MAY: Yes. I think that would be helpful.

MR. RYNEVELD: That leaves me, then, with the final issue that Your Honour raised at the outset, the 90 -- the certification application. You asked whether or not I had an application to make. I'm not aware of any application to make other than the application that is in our filing of the 13th of June, which is to ask for a corrigendum of our application for certification under 73(C). It appears as if the style of cause was under old 73(B), which did not take into account the 8th of May amendment to the Rules, and we have filed a corrigendum of the application. And if there's something else Your Honour had in mind, I would prefer to wait until Mr. Nice returns because this is an aspect which has been dealt with by Mr. Nice.

JUDGE MAY: No, if it's for Mr. Nice, if we want argument, we'll ⁷¹⁶⁵ leave it for him. We will consider the matter later today.

MR. RYNEVELD: Thank you, Your Honour.

JUDGE MAY: Let me return the documents you kindly handed to us.

MR. RYNEVELD: I might say my understanding is that if the Court wants to hear from us, Mr. Nice is available later this afternoon.

JUDGE MAY: Thank you. Very well. Mr. Wladimiroff, I don't know if there's anything you want to raise.

MR. WLADIMIROFF: There might be three issues, Your Honours. First of all, the matter of the funding of the amici. So far, no news, I'm afraid. We have spoken to the legal officer of the Chambers. We explained our position, and we are waiting for further reply. The second issue is K12. It seems to me that it won't be necessary to have him on the list, on the witness schedule, because the contempt proceedings seems to me a matter that is not any more related to the Milosevic trial. That's a matter by itself, where the accused is not a party or an interest person. I wonder whether it will be necessary to have this witness still on the list, as it is now.

JUDGE MAY: He was kept on at the request of the Prosecution. He's on the current list, is he?

MR. WLADIMIROFF: Yes, but he was on the list more or less proforma, to be heard at the end of the trial. That's what I've been told. Now he appears as one of the witnesses, which I think is not relevant for the Milosevic case at this stage. It's page 2 of the latest schedule. ⁷¹⁶⁶

JUDGE MAY: Will the Prosecution consider that?

MR. WLADIMIROFF: Sure.

JUDGE MAY: It's really a matter for them but it's something we should note.

MR. WLADIMIROFF: The last issue I want to raise is that we have filed, as Your Honours may have observed, observations on the second expert report, as I told you last week we would, and we will file this week, I think either tomorrow or by Wednesday, our observations upon the use of Rule 70, and that's, as far as I know, the last part of the documents we promised to the Court.

That's all I have to say.

JUDGE MAY: Thank you.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Wladimiroff, I think the sooner you can let us have your observations on Rule 70, the more helpful it will be for the Chamber.

MR. WLADIMIROFF: I will try to finalise it today, Your Honour.

JUDGE ROBINSON: Thank you.

JUDGE MAY: Very well. This matter is now adjourned. The Court will sit again when the accused is recovered. Meanwhile, the parties should stay in touch day-to-day to see whether we will be sitting the next day.

We will adjourn now.

--- Whereupon the hearing adjourned at 9.51 a.m., to be reconvened on Tuesday, the 18th day of June, ⁷¹⁶⁷ 2002, at 9.00 a.m.