³³⁰⁶¹

Monday, 18 October 2004

[Open session]

[The accused entered court]

--- Upon commencing at 9.05 a.m.

JUDGE ROBINSON: Mr. Kay, we received two filings from you dated the 15th of October. One is an update --

MR. KAY: Yes, Your Honour.

JUDGE ROBINSON: -- on the witness list and one is the witness list for this week.

MR. KAY: Witnesses scheduled for today and tomorrow in the sense that they would take part of tomorrow, are witnesses that require permission from their state German government before they are able to testify in these proceedings. They had originally agreed to be witnesses and then raised this matter a couple of weeks ago, and at that stage we took steps to obtain the relevant permission by using one of the sections of the Registry.

Dr. Rohde immediately set afoot the relevant permissions, but we still await them. And one of those witnesses is fairly nearby to this court and is able to get here very quickly, but in view of his position, he has to receive that clearance from his government. And in those circumstances, we're unable to call a witness today, Your Honour. The other German witness is currently in Afghanistan, but the means of getting him here were -- were entrain, and once that relevant permission comes he is able to be contacted and will come to court. In those circumstances, we cannot call any witnesses for the trial ³³⁰⁶² today, but it may be an opportunity for the Trial Chamber to deal, in part at least, with some of the issues concerning the attendance of witnesses. We have provided the Trial Chamber with an updated --

JUDGE ROBINSON: Before you move on to that, there is Ms. Kanelli and Mr. Spasic. Mr. Spasic was due to testify last week.

MR. KAY: Yes.

JUDGE ROBINSON: And I think what was outstanding was a report.

MR. KAY: A report, and he was going to speak to the other members of his victims association so that they understood entirely what his position was and why he was being asked to give evidence rather than one of the others within the association. We are hoping that arrangements will be able to be made for him to be back here by Wednesday, but as I told the Trial Chamber last week, the circumstance of travel for these people is often very difficult, and there isn't the kind of instantaneous communication and response that we might hope for and expect as they live in areas where there is some difficulty.

Ms. Kanelli arrives in The Hague today, and she will be -- she was scheduled to testify on Wednesday. We will have to see whether she will be prepared to testify tomorrow. She's been interviewed, but she has various commitments - she is a member of parliament - and Ms. Higgins will have to talk to her when she arrives later on today.

JUDGE ROBINSON: She will have relevant evidence?

MR. KAY: The extent of her evidence, from what I have seen, is not great, and her evidence concerns largely a visit she made to Belgrade during the NATO bombing campaign in the Kosovo phase of the indictment and ³³⁰⁶³ her personal experiences there. She was on the priority witness list of the accused. The Court will remember that I asked the associate of Mr. Milosevic to provide a priority list, which contained approximately 140 names. This witness was on that -- that list, and it may be that they are aware of areas of relevance that we are unaware of. Certainly on first blush from the statement taken by Ms. Higgins, it is not a -- a central feature of the evidence relating to the indictment.

JUDGE ROBINSON: Well, I'm sure you will satisfy yourself as to the relevance of her evidence.

MR. KAY: Yes. I have to perhaps balance here the interests of the accused, looking at his best interest, and there may be matters that he is aware of that we have been unable to divine in relation to her relevance for the proceedings.

JUDGE ROBINSON: And if that is the case, it is, of course, perfectly open to the accused --

MR. KAY: Yes.

JUDGE ROBINSON: -- to fill in those gaps.

MR. KAY: We are endeavouring to put before the Court those witnesses that were submitted as being of a priority in relation to his defence. And that is the way we have worked and we've taken it as being our duty to work, because that would come to the nearest form of instruction, the filing of a witness list, that we have.

JUDGE ROBINSON: As to the two witnesses who are Germans --

MR. KAY: Yes.

JUDGE ROBINSON: -- I am at a loss to understand why it is taking ³³⁰⁶⁴ so long to secure the permission from the German government.

MR. KAY: The witnesses did not have any clearances or permissions before we came into this case in September. So no arrangements had been set up to deal with any of the witnesses in relation to clearance from a government, if appropriate, a foreign state, or indeed any waiver in relation to testimony if from Serbia or elsewhere where such a requirement was needed. No witnesses have been provided with that level of preparation having been taken.

During the course of our inquiries and structuring of the case, these issues have been raised with us after the witness has agreed to testify. In the case of those two German witnesses, in the middle of September, maybe later.

JUDGE ROBINSON: In the Prosecution's case, the procedural difficulty that they encountered was with waivers, waivers in relation to possible prosecutions, criminal prosecutions, relating to state secrets.

MR. KAY: Yes.

JUDGE ROBINSON: It wasn't, Mr. Nice, if I remember it correctly, a difficulty that related to general permission to testify.

MR. NICE: Our principal problem was with waivers, but it's certainly the case that with any witness whose evidence relates to a time when he held an official position, there are administrative procedures that have to be gone through which, with some countries, can take a very long time indeed. And the procedures are different according to the countries.

For example, there may be -- I don't wish to be specifically ³³⁰⁶⁵ critical in any sense about any country, but were there, for example, to be a general entente cordial between a particular country and this Court, it wouldn't change the fact that that country would still go through its own rigorous procedures, which might involve potential evidence in chief being first given to an examining magistrate before the witness can even be approached properly by us and brought to this Court. So in addition to waivers, there are administrative problems with various countries. The lead time for witnesses, for us, has varied. I suppose there have been some witnesses who we've got in a very short period of time, but typically any exercise to get a witness takes, at the minimum, weeks; inevitably, normally, months.

JUDGE ROBINSON: Thank you, Mr. Nice. Mr. Kay, the difficulty I have here is that the Court doesn't have any information as to the stage that the procedure has reached within the domestic jurisdiction. I don't know if you have any -- any idea. Are they moving in the direction of granting permission? Is that known?

MR. KAY: We have no information, Your Honour, at all. The information leaves the Registry, and if I may say so, Dr. Rohde and his staff have been extremely helpful and immediately investigated and put entrain the procedures for us, but as they said, once it's out of their hands, they lose control of it. And they are using channels that have been opened up for the benefit of the Court by the particular government, but in terms of where it is in the system and what is happening, I don't believe they receive a great deal of information. I think it goes to the embassy here and then goes into the domestic jurisdiction. ³³⁰⁶⁶ The time to be taken, from my inquiries over the last few weeks in relation to all those procedures, is not at a level that we would expect. I've had the opportunity of talking to, in fact, one of the Prosecutor's experts in this matter to find out if there are procedures we don't know about or that we could use and receive advice. The waivers may take 15 months. He was just in receipt of a batch of waivers in relation to certain Serbian witnesses that were filed 15 months ago.

JUDGE ROBINSON: My understanding is that we're not dealing with waivers here.

MR. KAY: No.

JUDGE ROBINSON: With witnesses.

MR. KAY: Yes. I'm trying to give an overall picture. We have gone through the list, looking at what we can get, and as we've gone through and found names, we've worked on those names and to try and see what kind of list we're left with, obviously.

JUDGE ROBINSON: I should clarify for the benefit of the public that these procedural difficulties are in no way incidental to the role of assigned counsel. These are difficulties that would have been encountered had the accused been representing himself.

I would still like to have more information. Perhaps the Registry might have the information as to where the matter is at in the domestic jurisdiction. Because you have been trying for about, I would think, at least two to three weeks now to get this permission and it hasn't been -- been forthcoming. If it's not forthcoming, at least we ought to have some indication as to what is happening, what is the stage that has been ³³⁰⁶⁷ reached in the consideration by the domestic jurisdiction.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Kay, before we look at the larger witness list, I'll just end the discussion on this by asking the Registrar to provide us with whatever information he has as to the steps that are being taken to secure permission from the German government in relation to the two witnesses.

MR. KAY: Yes. I can tell the Court that we've been in contact more than once a day in relation to these witnesses, and the communication that we've received is that it's out of their hands and going through the procedures in Germany and whoever that involves. But they have been contacted every day, and I know that they are on this matter and attempting to fulfil it.

MR. NICE: Your Honour, before we move to the next witness list, there's a matter of detail that I might be able to help the Court with, and I only regret that I didn't discuss it with Mr. Kay before you came in this morning. It came to me by an e-mail on Friday, and I wasn't here on Friday, so I've only just picked it up.

We've made our own inquiries about Hartwig and Hensch in a spirit of cooperation, not in a spirit of antagonism, and it appears through our contacts with the German authorities here that the German government - I don't know what level of authority that comes from, but from the embassy - sees no reason for either of these two to have permission from Germany to give evidence because they were working for OSCE or ECMM at the material time and thus needed permission from the European Union or from OSCE, and ^{33068 BLANK PAGE 33069} apparently legal counsel -- it may be that the EU sees no problem with respect of Hartwig and we don't know about the position of the OSCE. We are expecting to get some further information and I'll make it available to Mr. Kay, but it looks comparatively promising for their position this week.

JUDGE ROBINSON: Thank you, Mr. Nice.

MR. KAY: Yes. One gets a situation, I think, of buck passing when you start making inquiries in relation to institutions, that it's not their problem, it's someone else's problem, but the witnesses have been explicit and they know the conditions and terms of their employment in relation to the permissions that are required, and we have to satisfy that.

JUDGE ROBINSON: It depends, doesn't it, on the constitutional relationships between the organisation to which they are seconded and the country from which they're coming.

MR. KAY: Yes.

JUDGE ROBINSON: Because normally if you are seconded to an organisation, then I would understand the information that Mr. Nice just gave as the person who was seconded to an organisation would then be working for that organisation. And in fact in some cases it is even necessary constitutionally to show that you have no relationship with the country from which you are coming.

MR. KAY: Yes.

JUDGE ROBINSON: It's necessary to show that you're not taking instructions from them. So I can understand the information that Mr. Nice ³³⁰⁷⁰ just gave. And if the matter is now at the level of the OSCE -- and is it ECMM or has that been overtaken? I'm not sure.

MR. KAY: OSCE at that time.

JUDGE ROBINSON: OSCE. Then I don't see why it should take very long.

MR. KAY: It is with them, actually. We've covered that angle. I've used the issue of the state, but we're also covering the European Union angle as part of this inquiry. Dr. Rohde was immediately aware of that.

JUDGE ROBINSON: I've asked the registrar. The registrar will take note of the request from the Chamber for an update on this.

JUDGE BONOMY: Mr. Kay, these two witnesses I think specifically said that they would require the authority from their government. They didn't make reference to either the ECMM or the OSCE. And what is actually happening here on the face of what Mr. Nice has just said is that what you've described as buck passing may indeed be an apt description, is that the government will actually give us the answer, is that right, but they will make a check with the OSCE before doing so, or are these two separate permissions that we're talking about?

MR. KAY: They're two separate permissions. One of them raised the OSCE, and the other didn't. To cover both, we decided it was appropriate to seek EU permission as well. Both are happening in parallel. It's not a case of waiting for one and the other to be produced. Both have been set entrain in parallel. In relation to the witnesses, if they raise the position of their ³³⁰⁷¹ state government, it is sensible for us to deal with that rather than then have to move the witness into an uncooperative category, and we would not seek to do that in relation to these witnesses. The experience of many, mainly on the Prosecution side, who have had to deal with these issues is that occasionally a witness doesn't want or require anything and will just come. On other occasions and in the majority of occasions, because of their conditions and terms of employment, they don't seek to be in breach and are careful about their -- the steps taken in relation to their production here as a witness.

JUDGE ROBINSON: Thank you.

MR. KAY: Yes.

JUDGE ROBINSON: Can we now look at your witnesses for Kosovo as a whole. In your list, there are about 138 witnesses.

MR. KAY: Yes.

JUDGE ROBINSON: And you have conveniently divided them into categories; internationals, experts, and -- what is the other category? What is your other category, Mr. Kay?

MR. KAY: Insiders.

JUDGE ROBINSON: Insiders.

MR. KAY: They are senior --

JUDGE ROBINSON: Yes. And they are fact witnesses.

MR. KAY: Yes. I have a communication this morning in relation to one of the witnesses within the expert category - in fact, over the weekend - who e-mailed me, making themself available, and that will be attended to later on today. That was a witness in the expert category. A ³³⁰⁷² report would have to be done, so it's not a matter of a witness who is immediately available.

In relation to another witness not originally on this list but to be added, I've received information this morning again that that is a witness who can be added to this list, but, again, it doesn't alter the overall picture from our research in, say, a month that we are putting before the Court today.

JUDGE ROBINSON: Let's go back to the list of experts.

MR. KAY: Of course.

JUDGE ROBINSON: For how many of them were reports already prepared by the accused and his team? In other words, how many of them were perceived by the accused to be experts?

MR. KAY: Four of them --

JUDGE ROBINSON: Four.

MR. KAY: -- have provided reports.

JUDGE ROBINSON: And you have in your list 21.

MR. KAY: Yes. There is a fifth who hadn't provided a report which had been filed in the registry, but I understand from having spoken to him that that was a report that was sent to the accused or his associates and he was not willing to hand that over.

JUDGE ROBINSON: You have made the determination that these other 16 witnesses are giving expert testimony.

MR. KAY: Yes. Having looked at their backgrounds, the summary provided from the Rule 65 ter, as well as Mr. Tomanovic's additional summary in the priority list, it seems to me that there is a very good ³³⁰⁷³ chance, a very high probability that those witnesses would, in fact, be seeking to put before the Court expert opinion testimony.

JUDGE ROBINSON: Your own approach, Mr. Kay, is one of caution. You're very careful in your approach to these matters, and it may be that some of them may not be giving expert testimony in the view of the Chamber.

MR. KAY: I would have been surprised, having taken into account objections that could be raised by the other side. There is in all of them, as there must be, a degree of a factual basis from their own personal knowledge, but in the summaries here, it indicates to me that it would be expert opinion evidence, and I would not want to be faced with the position of calling a witness, that objection being made, and then there being a total waste of effort and resources and an inconvenience to the Defence.

JUDGE ROBINSON: Is there anything that you'd like to tell us about that list in terms of availability?

MR. KAY: In terms of availability, I think there is -- yes. Within each of these boxes, there is a -- a summary of the perhaps most recent contact. In the boxes, there is in fact a far greater history that could be inserted but it would be of no real use to the Court, and we --

JUDGE ROBINSON: Many of them have refused to testify, indicating their opposition to the assignment of counsel.

MR. KAY: I've had no response from a few, but you are quite right. This is a about 80 per cent, 90 per cent refusal rate, although one of them, as I say, has contacted me over the weekend to say that they ³³⁰⁷⁴ would be willing to provide a report, and I've responded to that, and that information will have to go through the Registry to deal with the terms and research period necessary.

JUDGE ROBINSON: Is that one who had previously refused on --

MR. KAY: No. That's someone who had never been contacted before.

JUDGE ROBINSON: I see.

MR. KAY: A high number of these witnesses have received no prior contact. A significant number. And we are sometimes the first telephone call that has been made to ask them to be a witness in this case, if what they say is true.

JUDGE ROBINSON: For those who have refused, giving as their reason the Chamber's decision on the assignment of counsel, it may be that after the Appeals Chamber has adjudicated on the matter there may be a change. And if there is no change, then, of course depending on the outcome of the appeal, I think you will then have to decide what orders you'd want the Chamber to make.

MR. KAY: Yes. Some witnesses have said they're waiting to see the decision of the Appeals Chamber, but the vast majority fall into a more stringent category in relation to their approach to the matter. Some of these witnesses are giving what I believe needs to be checked to see whether it is opinion evidence or not. If they were experts, of course, they would be entitled to refuse to attend if they did not wish to fall into that category of witness as an expert witness. I think it's -- its a greyer area, you could say, but the powers of any court to compel someone to be an expert are probably limited, and this is ³³⁰⁷⁵ a matter I've been thinking through over the last few days.

JUDGE ROBINSON: Your determination that they're experts is based on the 65 ter.

MR. KAY: 65 ter and Tomanovic's priority document. We have had no prior statements in relation to any witness. We are in the position, at the moment, that we are taking these witnesses either blind, in the sense that we proof them when they come to The Hague, or as in the case of last week, Ms. Higgins went to Greece and took a statement there from the witness Kanelli.

I have been told by the associates to the accused that they had no notes, and that was not the way that they were operating in relation to the witnesses and that there is nothing for them to deliver up to me in relation to their notes of witness testimony. And if I may say so, from our review and contacts with witnesses, it seems a lot of this may have been done over the telephone. There have been face-to-face visits, but there have been discussions. There have been witnesses who have been discovered, if you like, as a result, perhaps, of Internet searches - there are a number that fit into that category - and may have made publications which have caused them to be contacted, and by that means say they will be a witness for the Defence in the case.

JUDGE ROBINSON: Moving to the internationals, of which there are 27, on page 16.

MR. KAY: Yes.

JUDGE ROBINSON: I noted in relation to 209, 1343, and 1347, that an update should be given in terms of the last contact that was made. For ^{33076 BLANK PAGE 33077} example, in 1343, to be contacted by Ms. Higgins to discuss matter. Last contact 7th of October. 1347, the same, last contact the 4th of October.

MR. KAY: Yes.

JUDGE ROBINSON: And 209 we had met before.

MR. KAY: Yes. 209 has been an ongoing contact. Generally there's an intermediary, and we have to proceed through messages being passed on, messages back to the intermediary, and it is by no means easy. But I don't believe at the end of the day there's going to be a particular problem with this witness, it is getting the right circumstances and time. In relation to the other two witnesses, they have to be contacted again. We have limited contacts. It may be that there's a telephone number and you ring it and the person's not in, and it becomes quite difficult to follow these -- these through to speak to them with such a limited form of contact.

Ms. Higgins deals with the French-speaking witnesses, being a fluent French speaker. There was information given to me on the end of Thursday concerning certain French witnesses who were having a meeting. So the position with French witnesses is by no means resolved yet, and we are endeavouring to give them confidence in the procedure. The -- I'm sorry, Your Honour. I was reading another matter and I didn't realise you were also reading.

If I could just advise you while we're on the French witnesses, the information that came through was that there was a meeting of five French witnesses to define a common position. "We would like to ensure that Mr. Slobodan Milosevic will be allowed to question himself his ³³⁰⁷⁸ witnesses." I've spoken to this matter with these particular witnesses before. They have been advised of the terms of the Court modalities, and in a way there's a limit to how much you can keep on telling people about the position.

JUDGE ROBINSON: Yes. And I think -- are you in possession of the information which has just come from the Registry? You're not.

MR. KAY: Thank you. Thank you, Judge Kwon.

JUDGE ROBINSON: This is a very quick response for which I am grateful to the -- to what I said earlier, asking the Registry to inform us in relation to the two German witnesses.

MR. KAY: Yes. We knew we were at a stage of time when I think we were near, but it's the timing that's right. Dr. Rohde, when I spoke to his assistant Mr. Dye last week, believed that we were close, and suddenly a day or two can make a difference.

JUDGE ROBINSON: But this information looks very promising.

MR. KAY: Well, on the one hand what you give in the other gets taken away. Something that's just come through to us in relation to one of those witnesses, and in fact, it's a rejection. It's a bit like the dance of the seven veils with some of them. So having got a position of fulfilment, it's then a rejection.

JUDGE ROBINSON: But not --

MR. KAY: One of those witnesses will only testify if the accused is allowed to represent himself.

JUDGE ROBINSON: That issue was not raised before, was it?

MR. KAY: No. ³³⁰⁷⁹

JUDGE ROBINSON: No.

MR. KAY: No. By experience you gradually learn the level of the territory. Sometimes the Court may think I'm being bleak about these matters. It's just that you can go down a route and then find that various things, obstacles are put in your way. You deal with those, and then you get to the final position and then there's an obstacle that's put in your way. I believe the Prosecution have had the same experiences as well, from my researches. But this e-mail that was just sent in has just literally come in in the last few minutes. That is the witness Hartwig who is now objecting to testify.

In --

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Kay, it seems to the Chamber that if the necessary consents have been given, that witness still refuses to come, you may want to invite the Chamber or request the Chamber to issue a binding order.

MR. KAY: Yes. Yes. It would be --

JUDGE ROBINSON: Or subpoena.

MR. KAY: It would be a subpoena for him, yes. We're at the stage where we've -- we've got the overall picture. There are one or two witnesses still to be contacted or things to be followed up, but we have a sufficiently general picture to be aware of what we are -- have to deal with, and to fulfil the need to call witnesses, we would now have to embark on enforcement procedures.

It does raise a problem when you have uncooperative witnesses ³³⁰⁸⁰ which is far greater in extent than when you've got willing witnesses who have to go through domestic procedures or require permissions. And from my recent research into the matter with those who have got great experience of it, it is -- it is quite clear that, as has happened here, that suddenly an obstacle can be raised that can cause all planning -- that you accept someone's word and position, you make the plans, you set it up for the Court, and then at the last minute an obstacle is put in your way that may require some weeks or months to deal with. And I'm sure the Trial Chamber has experience of dealing with witnesses generally but may not be quite aware of the difficulties that we face with the lack of cooperation, making it a harder task than when you have at least willing witnesses to work with you.

JUDGE ROBINSON: Of course, a subpoena is a last resort. It's a last residual measure. But once the procedures have been exhausted, the Chamber will -- will issue a subpoena.

MR. KAY: Yes.

JUDGE ROBINSON: Because it has to be demonstrated to witnesses that this trial is a matter of fundamental importance and that we operate by procedures which are wholly proper. And once specific procedures have been exhausted, the Chamber will consider an application for a subpoena.

MR. KAY: Your Honour, in relation -- we haven't only been working on this list. There is another level of witnesses as well that we have been working on that were derived from the five schedules submitted on behalf of the accused for the commencement of the trial. The Court will remember the five schedules that were submitted from June until August. ³³⁰⁸¹ We've also been working off those, and this is the summary of the problem for the part of the indictment that the Court is dealing with now. We took the point of view that it was of no real benefit to burden the Court with yet another schedule with more names dealing with the other indictments and wider issues. We've tried to focus everything, as the Court wanted, and in our view rightly so, that the Defence concentrate on each section of the indictment in a distinct form so that the matters that being dealt with were more clear and readily understandable.

JUDGE ROBINSON: Turning to the list of insiders. The list consists of 39 witnesses. Is there any specific information?

MR. KAY: Again, you have a willing witness, and we had hoped for one to include into this week, but some ten days ago or so he raised the issue of needing the permission from the Serbian government, from the relevant ministry, to enable his testimony. Well, of course, we then have to take him off the list and go back and deal with that. One of our problems is that, in the preparations, none of this groundwork had been undertaken. But by and large, there are refusals to testify to a great extent. In the last few weeks, we have been obtaining the addresses of witnesses because, as I've informed the Court, we only had basic information - that might just be a telephone number or an e-mail address - and we could envisage problems coming to the Court or setting entrain any enforcement procedures with such a low degree of information, and it would be easy for mistakes to be made and the wrong people contacted. So we took the view as much as possible that addresses should be obtained so that we could be more specific and that any procedures ³³⁰⁸² which required the cooperation of, say, the Serbian government could be undertaken on definite details of identity, or as definite as can be made.

JUDGE ROBINSON: Your fact witnesses number about 50.

MR. KAY: Yes.

JUDGE ROBINSON: Is the position the same there?

MR. KAY: Yes. Yes. There is a greater problem with no contact details in this particular category, although, again, over the weekend one of our investigators forwarded to me 12 addresses for witnesses which can be included into this table, which will help matters, but obviously that has yet to be acted upon.

There has been a slight problem in that it appears that some of the witnesses on the original list were reproduced twice. I believe the Court and the Registry may have had a problem counting the number of witnesses concerning Mr. Milosevic. From my research I was able to identify what seemed to me a number who had been put into the 65 ter list twice in different parts of the document.

Again, the main reason is the issue of Mr. Milosevic's position concerning the imposition of counsel.

JUDGE BONOMY: Mr. Kay, I have one or two specific inquiries to make of you. You've mentioned the absence of contact details just briefly at the end there. A number of the witnesses for whom there are no contact details hold fairly prominent public positions. I take it there's no real difficulty with contact details for them.

MR. KAY: We've obviously put those with our investigators, and there are some who hold prominent positions. I anticipate that the 12 ³³⁰⁸³ that I have been forwarded over the weekend are in fact within that category. Just glancing through it, it seemed to me that that was the case.

JUDGE BONOMY: The experts also, many of the experts fall into that category. For example, if you're on page 14, Witness 654, one would expect you would be able to track down. That's just an example.

MR. KAY: Yes. Yes. That's not too -- the one below, in fact, has agreed to testify, and I received that e-mail yesterday. And so those terms have to be arranged with the Registry.

JUDGE BONOMY: Now --

MR. KAY: It may be that one witness can deal with the overall subject matter and you don't need three dealing with the same subject.

JUDGE BONOMY: No, I can see that. The second matter relates, I think, to two examples only. If you could go to page 27 of your list. Number 888 was not contacted, according to this, by Mr. Milosevic's associates, and the witness wants to consult with them first before providing the Registry with a decision. And there is, I think, one other example of that, and that's on page 30.

MR. KAY: Yes. There are a couple like that, Your Honour. 1537.

JUDGE BONOMY: 1537 is the other one. Now, do you know any more about either of these and whether arrangements have been made for that consultation to take place?

MR. KAY: Yes. That -- that may have been passed on to someone to act upon. I can't answer that myself because this has been contact that has been in the B/C/S language. ^{33084 BLANK PAGE 33085}

JUDGE BONOMY: Would it be correct to interpret what you've put in this document as an indication that these witnesses are likely to be willing to give evidence as long as they get the okay from Mr. Milosevic's associates?

MR. KAY: I should hope so, because on the face of it they haven't adopted a position of opposition, unlike others that have been in this category. And so as it is a positive -- more positive response, we have put it that way.

There have been examples where they have fallen into this category and it's been an outright rejection. Some of those may be on the basis that they feel they do not wish to support the Defence case, others may be on the basis that they feel they do not have anything to offer in terms of evidence. And without any statement ourselves, it is difficult to disagree with them when they come to that conclusion.

JUDGE BONOMY: Now, thirdly, Mr. Kay, speaking for myself, I would like not to confine attention to those who are unwilling to give evidence but to concentrate also a bit more on those who are willing.

MR. KAY: Yes.

JUDGE BONOMY: And there are a number of these on the list, and there are examples on pages 34 and 35. There's 1276 at the foot of 34, and there's 1461 on 35.

MR. KAY: Number 1457 at the foot of 34 has always been willing to cooperate but raised last week, or two weeks ago, the issue of a permission from his relevant ministry, and that is with Dr. Rhode's office at the moment. ³³⁰⁸⁶

JUDGE BONOMY: That applies to both of the witnesses I've just identified and they both require permission from the Serbian Ministry of Interior; is that right?

MR. KAY: Yes. 1461 is that category as well.

JUDGE BONOMY: Are you able to say how long that is likely to take?

MR. KAY: I received a letter on Friday, which I will turn to, and the letter was dealing specifically with the first of those cases Your Honour pointed out. The letter, which I can give a copy to Your Honours so you can see it, is dated the 15th of October, they having been contacted on the 7th of October, requesting the grant of a permission for that witness from the Ministry of Foreign Affairs. "In accordance with the domestic legal procedure and the principle of equality of parties before the ICTY, it is necessary that the assigned Defence counsel for Mr. Slobodan Milosevic provide an outline of the matters proposed to be covered during the testimony of the witness. Such an outline will enable the National Council for Cooperation of Serbia and Montenegro with the ICTY to propose to the government of Serbia and Montenegro to give the witness a waiver from a duty to keep state, military, and official secrets. I take this opportunity to ensure you of the willingness of Serbia and Montenegro to enhance the cooperation with the ICTY in all fields." And that comes from the first secretary, Sasa Obradovic.

Well, I am informed that these waivers can take months, and the batch that I was referred to, this was taking a considerable period of ³³⁰⁸⁷ time.

JUDGE BONOMY: That letter, though, has the potential to develop a vicious circle, I think, because no doubt proofing of the witness is part of the exercise you have to carry out.

MR. KAY: That's what we were hoping to do. We didn't want to bring witnesses over here without having had them proofed.

JUDGE BONOMY: And that can't happen until you get the witness here, so you have to carry out an investigation, presumably, with that witness before you can answer that letter.

MR. KAY: Really, yes.

JUDGE BONOMY: Now, the fourth question I have, if you have page 39. We have, at the foot of the page, number 955, who is a witness willing to attend faced with certain difficulties which may require to be dealt with in some formal way. Now, have you considered how to deal with this situation yet?

MR. KAY: Yes. We put this with the WVSS, and the response we received on Thursday was that he does need a passport.

JUDGE BONOMY: There may also be a question of safe conduct in this -- or, maybe not. Maybe not.

MR. KAY: We've been checking out what that refers to, whether it's domestic matters or whether it's to do with this case. It seems it's more likely or not that it's a domestic matter rather than anything to do with this case. But there may be difficulties in him going somewhere to get his passport. That was how the last state of the information was put to me. ³³⁰⁸⁸

JUDGE BONOMY: I seem to have mistakenly made another reference to that page which I can't find at the moment.

Just the last point, then, Mr. Kay. On page 38 and on page 41, there are examples of witnesses whose evidence might have to be taken in a different way. Number -- the one at the top on page 38, that's 934, and on page 41, 1496 at the foot.

Now, the circumstances are not identical in these two cases, but it may be that in both cases thought should be given to whether that evidence should be obtained via videolink.

MR. KAY: Yes.

JUDGE BONOMY: There may be other examples of that on the list also.

MR. KAY: Not to a great extent. I think there's only one, two, or three that would go into this category.

934 has become more and more difficult as we've proceeded, from being positive in the first few weeks to being more difficult in relation to the issue of testifying. And 1496, that is a very recent one that has come -- come through.

I have had another one on a videolink issue, and I feel it appropriate I should at least have a statement from them first before putting entrain what is quite a complex procedure involving a number of parties. And it was our intention to have that as a group of witnesses, perhaps seen, proofed, and then considered. We were in a position at one stage of having one who was willing and available. Indeed, the Registry had taken marvelous steps acting on the initial information that was ³³⁰⁸⁹ given, setting it up very quickly and positively. But I have to say I think we should stop here because I've got no statement from the witness, I have no idea what the witness would give evidence about, and to launch into a videolink in those circumstances is probably unjustified. Well, is unjustified, not probably.

JUDGE BONOMY: I have found the one, Mr. Kay, that I thought I had misnoted but in fact I had misread my note. Going back to page 39, 948. It may be the only example in the list of a witness refusing to testify through fear.

MR. KAY: Yes. There are a couple of others --

JUDGE BONOMY: Do you intend to do anything about that or do you intend to accept that?

MR. KAY: He would have to be seen and proofed and given advice. There have been a couple in that category who have been concerned because they have property or connections still with Kosovo. They are now outside Kosovo and fear that there could be repercussions. There was one witness who is still in Kosovo and was concerned about leaving his house for a period of time to give evidence and the difficulties that may cause him. I can't remember which witness that was at this stage. And we're trying to follow that -- that through.

JUDGE BONOMY: Thank you, Mr. Kay.

MR. KAY: Thank you, Your Honour.

JUDGE ROBINSON: I just had a quick check made and noted that of the 138 witnesses for Kosovo on your list, 65 have refused to testify because of the assignment of counsel, and one is specifically awaiting the ³³⁰⁹⁰ Appeals Chamber's decision. So that is about 50 per cent, almost 50 per cent. So it may be that the position, depending on the stance the witnesses have taken or will take, the position may improve after the Appeals Chamber has ruled on the matter.

MR. KAY: Yes, depending on what that decision is either way, that may have an impact on the situation. That will necessitate us going back through that which has taken us the last four to five weeks and attempting to find the position of the witnesses even if -- whichever way the appeal goes, it's probably something that needs -- it occurs to us, whichever way the appeals decision goes, there needs to be a greater concentration on the means of production of witnesses at the Tribunal. And we hope that the cooperation of the various agencies, be it Mr. Milosevic's appeal succeeds or doesn't, is at a level for the Defence that enables this -- this case to function efficiently and smoothly.

We do come at a disadvantage in many respects, not having perhaps the status of the Office of the Prosecutor and the well grooved channels of communication. That can make it difficult to sometimes put on the appropriate pressure to get the level of intensity of response that should be required.

JUDGE ROBINSON: But I should note, Mr. Kay, that everything has been done to facilitate the discharge of your responsibilities.

MR. KAY: Yes. Dr. Rhode's office here has been extremely helpful, and other aspects of the Registry, in providing this liaison to take these steps. There's been a high level of concern and interest right the way up to the Registrar in relation to the production of witnesses for ³³⁰⁹¹ this Defence case.

JUDGE ROBINSON: And the next witness, then, will be available on Tuesday or Wednesday?

MR. KAY: We -- Ms. Higgins, who has had contact with the witness, believes that there's a good chance that the witness will be available tomorrow. She is flying in now today, and we'll of course keep all parties abreast of developments.

JUDGE ROBINSON: And the German who is willing to testify?

MR. KAY: Awaiting permission, but a very short distance from this Court.

JUDGE BONOMY: But assuming this -- the accuracy of this, which tends to suggest that approval has been given and it's simply the written confirmation that's awaited -- it's Mr. Hensch, is it?

MR. KAY: Yes.

JUDGE BONOMY: He's not far away and he could be proofed and led this week.

MR. KAY: Yes. That's literally just come in, and we will act on it when we're free to do so after the court session, if we may.

JUDGE ROBINSON: Very well, Mr. Kay. Thank you. We will adjourn until tomorrow morning at 9.00 a.m.

--- Whereupon the hearing adjourned at 10.19 a.m., to be reconvened on Tuesday, the 19th day of

October, 2004, at 9.00 a.m.