Milosevic Transcript 2003-07-28

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Monday, 28 July 2003

[Open session]

[The accused not present in Court]

--- Upon commencing at 9.06 a.m.

JUDGE MAY: A report has reached us, Mr. Nice, and I hope you too, of the accused's illness in the Detention Unit. A doctor is apparently on his way to see him and we will order a report for this afternoon, but it means that obviously we cannot sit today to do anything substantial by way of business. There are some administrative matters about the Rule 92 bis witnesses which I wish to raise with Mr. Groome.

MR. NICE: Certainly.

JUDGE MAY: Unless there are any matters that you wish to raise.

MR. NICE: No. Apart from administrative matters, arguments on procedural matters whether 92 bis or otherwise could conceivably continue in the absence of the accused once Mr. Kay is here i.e., tomorrow, on the following basis, that the accused declines to participate in procedural arguments save to repeat his particular position on all witnesses being available for cross-examination, and in those circumstances, it might, were there other arguments to be deployed, be possible to deal with them contingent on the basis of his having further observations to make when he's reviewed either the transcript or a video of proceedings conducted to whatever extent possible in his absence. That's the only way we can think of of saving time.

JUDGE MAY: As far as you're concerned, are these rulings of significance before the recess? ²⁵⁰⁷⁶

MR. NICE: I think the answer is probably yes, because we need -- we have only 60 days left by your calculation and we have to make budgeting decisions between categories of witnesses and that's a daily process, so the earlier we get rulings on 92 bis the better. Can I perhaps just say this to assist the Chamber. We don't know whether the accused will be here tomorrow or whether he will be here on Wednesday. The Slovenian interpreters were travelling today to be available tomorrow and Wednesday. I've asked VWU to put them -- or whoever is dealing with them, not VWU, CLSS to put them back to travel tomorrow to be available on Wednesday or Thursday and, again, it's always possible we could put them back tomorrow when we have the up-to-date medical report to travel on Wednesday for Thursday and Friday. So we've got that degree of flexibility with the interpreters for the witness Kristan.

It seems on our witness list the witnesses we should dispose of at this week, if at all possible, B-174 who, I think, will come first subject to whatever the position of Kristan is. B-174 should really come first because particular security concerns. It may be here or in private session Mr. Groome will be able to tell you about that. And the witness Erdemovic is the other witness who should be heard if at all possible this week and I'm asked to remind you that he has protective measures for face and voice distortion, but that he will of course be testifying under that name, the name I've given, which is his name at the time, not under any other name.

That's probably all I can help you with at the moment. The Court ²⁵⁰⁷⁷ has --

JUDGE MAY: Is there anything we should know about the witness you mentioned? You said in private session.

MR. NICE: I think Mr. Groome can deal with that better. But the Court also indicated last week that it would be trying to find an extra session, as it were, somewhere this week, and I know we lost another session on Friday. I would realise that seeking more time may be in conflict with any sensitive medical condition of the accused, but if the Court's able to give us any indication of whether it had provisionally planned to make a session available on maybe Wednesday afternoon or Thursday afternoon, that will help us do with our provisional planning, which of course involves both sending witnesses become and keeping enough witnesses here.

JUDGE MAY: The answer is we have not considered it at the moment, but no doubt it is something we can consider and it rather depends on what happens with the medical condition of the accused. What --

MR. NICE: I should also have told you the part-heard witness whose position I think you considered on Friday has to go back today so that his evidence can only be concluded on some subsequent day but at least he drops from this week's list.

JUDGE MAY: Yes.

MR. NICE: Insofar as that save us problems. It just becomes very difficult and of course very expensive to keep witnesses around but there is no alternative for it. We will send them back as rapidly as we can ²⁵⁰⁷⁸ consistent with ensuring that we can make whatever use of time at maximum is available to us. Unless I can help further.

JUDGE MAY: No. But perhaps Mr. Groome could tell us about the other witness in private session, please.

[Private session]

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[Open session]

THE REGISTRAR: We're in open session. ²⁵⁰⁸¹

JUDGE MAY: There plainly is a limit to what we can do in the absence of the accused but we can at the very least consider the Prosecution position in regard to these various witnesses. I'm going to begin, Mr. Groome, with the Bijeljina, Bratunac, Zvornik witnesses who remain, beginning with 1058, who is from Zvornik.

MR. GROOME: Your Honour, with respect to Witness 1058, the Prosecution's position, and the amici have agreed, that it is not proximate to the acts and conduct of the accused. This particular witness's evidence is cumulative to Witness B-1237 with respect to one particular killing in that this opinions identifies the same victim as the Court has heard live testimony about.

There is a reference to the involvement of one of Arkan's Tigers in that killing. It is the Prosecution's position that cross-examination isn't essential, although we would recognise that the Court may very well disagree upon reading the statement and think that it might be appropriate for this particular witness to appear for cross-examination.

JUDGE MAY: Next is --

THE INTERPRETER: Microphone, please.

JUDGE MAY: 1613.

MR. GROOME: Your Honour, given the nature of this, this is a rape victim, I'd ask that we discuss this in private session.

JUDGE MAY: Yes.

[Private session]

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[Open session]

THE REGISTRAR: We're in open session.

MR. GROOME: Your Honour, with respect to this witness, once again it's the Prosecution's position, and the amici confirm this position, that it is -- the evidence in this statement does not go to the acts and conduct of the accused. I would note for the Chamber that this witness's evidence is strikingly similar to that of Mr. Fadil Bajanovic who testified regarding the Kozluk deportation, but I would also point out, Your Honour, that there are substantial references to both JNA and Arkan's and Seselj's men in a rather different light than portrayed by other witnesses and perhaps it would be -- the Prosecution would concede that it would be appropriate to have this witness appear for cross-examination.

JUDGE MAY: Yes. 1462.

MR. GROOME: Your Honour, this particular witness again does not go -- his statement does not go to the acts and conduct of the accused and ²⁵⁰⁸³ is cumulative. Mr. Kay, in his submission, agrees with that position. Once again, it is cumulative of the testimony the Chamber has heard about Fadil Bajanovic and it is the Prosecution's position that when the Chamber engages in the analysis recommended by 92 bis (A), this is one of those witnesses that falls clearly on the side of the spectrum favouring the submission of such evidence purely in written form without cross-examination. So it is the Prosecution's position that this witness should not be required to appear for cross-examination.

JUDGE MAY: 1702.

MR. GROOME: Once again, Your Honours, the Prosecution's position that this statement does not go to the acts and conduct of the accused and is purely crime base evidence and that position is agreed to by the amici. It is the Prosecution's position that there should be no cross-examination. This is a straightforward witness that is -- gives cumulative evidence of the events surrounding the takeover in Bratunac municipality, and I would remind the chamber of two witnesses of which this testimony is cumulative of and those are two unprotected witnesses by the name of Gusic and Becirovic. They were 92 bis witnesses that appeared for cross-examination.

JUDGE KWON: Does he not mention the involvement of JNA units?

MR. GROOME: Yes, he does, Your Honour. The Prosecution's position is that the particular issues as they relate to the JNA were adequately cross-examined with those other two witnesses.

JUDGE MAY: 1499.

MR. GROOME: With respect to this witness, Your Honour, it's the ²⁵⁰⁸⁴ Prosecution's position that does not go to the acts and conduct of the accused, a position which the amici agree with. Once again, the Prosecution's position is that it is cumulative evidence of the takeover of Bratunac and of the events that happened just prior to the takeover. In this particular witness's statement, there is no mention of the JNA, and once again, the Prosecution's position is this is another example of the type of statement which clearly falls in within the type of evidence that 92 bis (A) provides for being heard by the Chamber without cross-examination.

JUDGE MAY: I turn to the other two applications concerning Visegrad and Brcko. Yes. We will take Brcko first. Do you wish to deal with this in private session?

MR. GROOME: Yes, Your Honour.

[Private session]

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[Open session]

THE REGISTRAR: We're in open session.

JUDGE MAY: Yes, Mr. Tapuskovic.

MR. TAPUSKOVIC: [Interpretation] Your Honours, I think that I could be of assistance. Perhaps I could state our views in relation to our general position in this regard.

JUDGE MAY: Yes. Do you want to deal with matters -- if you're dealing with matters which were dealt with in private session, then we should be in private session. So those were the last two applications. In relation to the first application, you can deal with that in open session. ²⁵⁰⁹¹

MR. TAPUSKOVIC: [Interpretation] I would like to start from Witness 1058, please, from the very beginning. This is the first witness that we talked about, because these are our general principles, and I believe that even in the absence of Mr. Kay, I can state our views with regard to some of these matters so you could rule as soon as possible.

JUDGE MAY: Yes.

MR. TAPUSKOVIC: [Interpretation] As far as Witness 1058 is concerned, that is the first witness we talked about, the Prosecution said that Arkan's men are mentioned there too. So therefore, I think that cross-examination would be indispensable.

As for Witness 1630, I believe that we can agree that Rule 92 bis (A) can be applied because this is a person who lived through a trauma and there is no need for this person to go through this trauma again and to be exposed to cross-examination.

As for Witness 1521, we see again that the witness speaks of Arkan's and Seselj's men. So in view of our general principles, I believe that this witness should be cross-examined.

Then Witness B-1462. We accept the arguments of Prosecution. Cross-examination is not needed in this case.

Then Witness 1702. Reference made to the participation of the JNA there and we believe this witness should be cross-examined. Then 1499. We agree that this should be done according to rule 92 bis (A) and that cross-examination is not required. Then we move on to Brcko, 1407. Arkan's men are mentioned there.

JUDGE MAY: Yes. We'll go to private session. ²⁵⁰⁹²

[Private session]

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[Open session]

THE REGISTRAR: We're in open session.

JUDGE MAY: We'll consider the various matters raised and sit again when the accused is fit enough.

MR. NICE: Can I inform the Court that the extended complete witness list we've been preparing will be available this afternoon. There may still be some changes that will have to be made in relation to the Sarajevo witnesses but we're trying to get it into as final shape as we can. Amended versions of the fill-box documents will be available for Croatia and Bosnia by the end of the week. I think probably Kosovo is sufficiently unchanged from the earlier versions that there may be no utility in serving that. And I think also I should have a chronology available. All of that will be served in hard copy and electronically. I don't see much need for time to be spent this week or sought to be spent on administrative matters even the accused is fit. Far better we get on in evidence, but I just take five minutes at some stage to identify some forthcoming issues that we can argue and discuss in September.

JUDGE MAY: Very well. We will adjourn. ²⁵⁰⁹⁶

--- Whereupon the hearing adjourned at 9.53 a.m., to be reconvened on Tuesday, the 29th day of July, 2003, at 9.00 a.m.