1 Wednesday, 18th November, 1998
2 (Open session)
3 --- Upon commencing at 2.35 p.m.
4 JUDGE RODRIGUES: Good afternoon, ladies and
5 gentlemen. Please have the accused come in.
6 (The accused entered court)
7 JUDGE RODRIGUES: Hello to everybody. I hope
8 the interpreters are ready. Yes, they are.
9 Mr. Hirad, can you please call the case?
10 THE REGISTRAR: Case number IT-95-14/1-T, the
11 Prosecutor versus Zlatko Aleksovski.
12 JUDGE RODRIGUES: Thank you, Mr. Hirad. Can
13 we have the appearances for the Prosecution?
14 MR. NIEMANN: Good afternoon, Your Honours.
15 My name is Niemann, and I appear with my colleague
16 Mr. Meddegoda, and Ms. Erasmus is the case manager for
17 the Prosecution, if Your Honours please.
18 JUDGE RODRIGUES: And for the Defence?
19 Mr. Mikulicic?
20 MR. MIKULICIC: Good afternoon, Your
21 Honours. I am Goran Mikulicic, and along with my
22 colleague Mr. Joka, we represent the Defence. Thank
24 JUDGE RODRIGUES: Thank you very much. Our
25 work programme for today is to look into the motion
1 filed by Kordic and Cerkez, a motion relating to
2 various Chambers' hearing of cases related to the Lasva
3 River Valley, and one of the Chambers concerned is
4 ours, the Chamber dealing with the Aleksovski case. So
5 we received an official notice from the Kordic Chamber,
6 as I shall call it, asking us to hear the parties on
7 this matter.
8 But before we deal with this matter as such,
9 I would like to turn to Mr. Mikulicic. Are you aware
10 of the matter, Mr. Mikulicic? I mean, this is a
11 question I am putting to both parties. Do we need to
12 take stock of the situation as such, or are you all
13 aware of the various elements thereof? Are you
14 sufficiently informed so that you can start discussing
15 the issue straightaway?
16 Let's turn to Mr. Mikulicic first.
17 MR. MIKULICIC: Your Honours, the Defence is
18 familiar with the request from the Kordic matter, and
19 we are prepared to discuss it.
20 JUDGE RODRIGUES: You are well aware of the
21 situation, Mr. Niemann, but I would like to hear you,
22 if you don't mind?
23 MR. NIEMANN: If Your Honours please. Your
24 Honours wish me to address you in relation to the
25 motion now?
1 JUDGE RODRIGUES: Indeed.
2 MR. NIEMANN: Your Honours, yesterday when I
3 was speaking at this lectern, I wasn't being heard very
4 well, so I invite the interpreters to please remind me
5 if they cannot hear me properly.
6 Your Honours, in relation to this motion that
7 has been filed by the Defence in the Kordic case, it is
8 an application to this Chamber for access to non-public
9 transcripts, exhibits, Tribunal orders and decisions
10 and other materials necessary to the defence of the
11 accused that have been submitted in this case.
12 If Your Honours please, this is an
13 application to this Trial Chamber to, in effect, make
14 discovery, and in our respectful submission, it ignores
15 the fact that the Prosecutor has the obligation to make
16 extensive discovery under Rules 66 and 68. It is a
17 request that Your Honours make discovery separate and
18 distinct from the Prosecutor, and in our submission,
19 there is no merit in this application, but if there was
20 merit in the application, it would entail this Trial
21 Chamber examining all the non-public transcript,
22 exhibits, orders, decisions and other materials that
23 have arisen in this case in order to determine whether
24 that material is necessary for the defence of Dario
25 Kordic and Mario Cerkez.
1 Now, Your Honours, how it is that Your
2 Honours are expected to know what is necessary for the
3 defence of Dario Kordic and Mario Cerkez is not
4 explained in the motion and it is beyond me how Your
5 Honours would know that. I certainly don't know what
6 material is necessary for their defence, I don't know
7 if Mr. Mikulicic knows. Certainly, Your Honours, the
8 prosecuting counsel in the Kordic and Cerkez case, the
9 counsel that appears for the Prosecution in that case,
10 must know because he has a legal duty and an obligation
11 to know, because on behalf of the Prosecutor, he must
12 discover the material pursuant to Rules 66 and 68.
13 Your Honours, that is a matter for him; that
14 has nothing to do with counsel for the Prosecution in
15 this case, and I would respectfully submit that it has
16 nothing to do with Mr. Mikulicic, who appears for
17 Mr. Aleksovski, and unless Your Honours were prepared
18 to entertain this application, it is my submission that
19 it would not be an obligation that would fall upon Your
20 Honours either.
21 Your Honours, all of this issue in relation
22 to discovery is a matter for the Trial Chamber in the
23 Kordic and Cerkez case, and it is for the Trial Chamber
24 in that case to ensure that the Prosecutor, through
25 prosecuting counsel, complies with her duties with
1 respect to discovery.
2 Your Honours, it is not clear what the basis
3 of this application is. In my submission, it cannot be
4 an application under Rules 66 or 68 of the Rules
5 because these Rules cast responsibility on the
6 Prosecutor and not on the Chamber.
7 Your Honour Judge Vohrah may recall an
8 instance in the Tadic case when, at one stage during
9 the course of the proceedings, counsel for the Defence
10 suggested that the Trial Chamber become involved in the
11 supervision of discovery pursuant, in that case, to
12 Rules 66 and 68. It was just a passing moment in the
13 trial. But Her Honour Judge McDonald made it very
14 clear that this was a duty that rests on the shoulders
15 of the Prosecutor; it wasn't a matter for the Trial
16 Chamber and it wasn't a matter that the Trial Chamber
17 was going to take on.
18 So, Your Honours, we are left then to examine
19 the motion that has been filed by counsel for Kordic
20 and Cerkez to see whether there is any other basis upon
21 which this application can be brought.
22 They make reference to Articles 20 and 21 of
23 the Statute, and I think it is a fair interpretation to
24 suggest that they cite these particular Articles as a
25 basis upon which this Chamber would have a
1 responsibility to make discovery as they would suggest.
2 But in our submission, Your Honours, I cannot
3 see how Articles 20 and 21 require the Trial Chamber in
4 the Aleksovski case to join in and share responsibility
5 for the Trial Chamber in the Kordic case to see that
6 Kordic and Cerkez get a fair trial. If this argument
7 had any merit, why would it necessarily have to be
8 limited to discovery?
9 If Your Honours, in the Aleksovski case, have
10 a duty under Articles 20 and 21 of the Statute to
11 ensure that Mr. Cerkez and Mr. Kordic are given a fair
12 trial, why limit it to discovery? You should extend it
13 to every aspect of the trial. Your duties would
14 continue right across the board, in my submission.
15 This would have the somewhat absurd and
16 extraordinary consequence that not only would Your
17 Honours' Chamber have this duty and responsibility but
18 it would be a duty and a responsibility that extended
19 to every other Trial Chamber, because what is being
20 asserted here is that under Articles 20 and 21, Messrs.
21 Cerkez and Kordic have a right to a fair trial, and
22 because they have this right, they can enjoin Your
23 Honours in ensuring that they get that. Now, Your
24 Honours, that's absurd because that would mean that
25 every time a trial took place, every Judge in the whole
1 Tribunal except the Appellate Chamber would be required
2 to sit on the case, and that certainly cannot be the
4 Who has the responsibility to ensure that
5 there is a fair trial? It is the Trial Chamber that
6 tries Messrs. Kordic and Cerkez. That doesn't mean,
7 Your Honours, that we are suggesting that we don't want
8 to see that they don't get a fair trial, or that
9 somehow or other we are irresponsible in this. Not at
10 all. We are most anxious to ensure that they get a
11 fair trial. The point of the matter is, the
12 responsibility doesn't fall to Your Honours.
13 Therefore, there is no extension of that to say that
14 because Your Honours have a duty to ensure that they
15 have a fair trial, that you therefore accept and must
16 carry the burden of ensuring discovery, discovery
17 beyond that required of the Prosecutor.
18 Your Honours, when Their Honours were
19 drafting the Rules of Procedure and Evidence,
20 responsibility for discovery was placed squarely upon
21 the shoulders of the Prosecutor. Rules 66 and 68
22 create heavy burdens upon the Prosecutor, and it is a
23 very proper and appropriate burden. If the Prosecutor
24 does not discharge his responsibilities, or her
25 responsibilities, under Rules 66 and 68, then it is a
1 matter for Messrs. Kordic and Cerkez to approach that
2 Trial Chamber in order to raise the matter, and it is
3 for that Trial Chamber to then direct the Prosecutor to
4 properly perform her responsibilities with respect to
5 discovery; and I think we all would accept, Your
6 Honours, that the Trial Chamber in the Kordic and
7 Cerkez case would have no hesitation in ensuring that
8 the Prosecutor complied with her discovery obligations
9 under the Rules and so there could be no question of
10 any hesitation on the part of that Trial Chamber to do
12 Now, when it comes, especially to Rule 68,
13 there is no question that the Prosecutor has an
14 obligation to examine the material that has been
15 submitted in this case. It is not done by me
16 personally as counsel in this case, it is done by
17 counsel in the Cerkez and Kordic case. With respect
18 especially to Rule 68, that obligation, of course,
19 arises, because if something happened in the course of
20 this case which fell within Rule 68, such as material
21 that was exculpatory, the Prosecutor's obligations
22 would exist.
23 Now, what would happen then is that if the
24 Prosecutor made such a determination that the material
25 was discoverable under Rule 68 and if that material was
1 protected by an order of this Chamber pursuant to Rule
2 75, it would then be incumbent upon the Prosecution to
3 approach Your Honours and ask that the order be lifted
4 or that there be some variation in the order in respect
5 of that material so as to permit the Prosecutor to
6 comply with her obligations under Rules particularly 68
7 but also possibly 66.
8 So what happens with the procedure, in my
9 respectful submission, is this, that because the
10 Prosecutor has these somewhat onerous
11 responsibilities - but I say appropriate and proper
12 responsibilities - the Prosecutor must examine the
13 material in all cases. It then has to make a
14 determination of whether or not any of it falls within
15 Rules 66 or 68. If the material falls within Rule 68
16 and/or 66 and the Prosecutor needs to make discovery
17 but ascertains that the material is protected by an
18 order under Rule 75, then the Prosecutor must take
19 certain steps to lift that order. This would entail,
20 in some cases, approaching the witnesses themselves.
21 When witnesses come before Your Honours, say,
22 for example in the Aleksovski case, and testify, it is
23 their expectation generally that material only be used
24 in that case. It is not always the position, but in
25 many of the instances that is the case. Now, it may be
1 that the witness had not expected that it would be
2 handed to Defence counsel in other cases. This is a
3 matter within the knowledge of the Prosecutor because
4 the Prosecutor is the one that interviews the witnesses
5 in the first instance. So the Prosecutor may be
6 obliged to go back to the witness and say, "The
7 material here appears to be material which is
8 discoverable in another case, and may we seek, on your
9 behalf, a variation of the order?" It is possible that
10 a situation could happen where the witness refuses to
11 do that, and then steps would have to be taken, such as
12 the filing of ex-parte orders before the Trial Chamber
13 in the Kordic and Cerkez cases, so that the Trial
14 Chamber there could make a determination.
15 It doesn't fall to Your Honours to initiate
16 anything, and it certainly doesn't fall to Your Honours
17 to assume a responsibility which, at the moment, is
18 carried entirely by the Prosecutor; namely, it doesn't
19 fall to Your Honours to discover, which is what they
20 are asking you to do. They are asking you to actually
21 make discovery. In so doing, Your Honours, you have to
22 make a judgment and accept responsibility for the
23 discovery that you make because Your Honours have to
24 say that this is material which either assists the
25 defence of Kordic or it doesn't, and then you have to
1 determine which is then discoverable and which isn't.
2 In my submission, Your Honour, that is not an
3 obligation that is imposed upon you by the Rules or the
4 Statute, it certainly doesn't arise out of any notions
5 of having to afford a fair trial under Rule 20; that is
6 something that falls to the Trial Chamber that tries
7 them. So in my submission, Your Honours, there is no
8 basis whatsoever for them to come before you and to
9 request that you accept this responsibility based on
10 this premise, which I say is a false premise, that you
11 have a duty to ensure that they have a fair trial.
12 In addition to that, Your Honours, there is
13 no basis, in my submission, for counsel in Cerkez and
14 Kordic to actually file a motion in this Chamber. It
15 may be that I'm taking too narrow a view of the Rules
16 as I read them, as it has been said by counsel for
17 Cerkez and Kordic in their motion, but I would have
18 thought that the Rules dealing with bringing motions
19 before the Chambers was fairly clear, that the Rules
20 that I have looked at are Rules 54, 72, and 73, and all
21 of them make reference to "party," and "party" is given
22 a definition in the definition section which is Rule
23 2. The definition of "party" under Rule 2 is the
24 Prosecutor or the accused.
25 Now, in my submission, Your Honours, that
1 doesn't mean the accused in some other case, clearly it
2 means the accused in this case. Well, the accused in
3 this case, Your Honour, is Mr. Aleksovski. It is not
4 Mr. Kordic, it is not Mr. Cerkez. He is the only
5 accused that is envisaged by those Rules.
6 So, Your Honours, in my submission, the Rules
7 don't even permit the bringing of the motion in the
8 first instance, but certainly I go on to say that under
9 no circumstances are you cast under any obligation
10 whatsoever to make discovery under Article 20 of the
12 There is a solution available to Kordic and
13 Cerkez: They go to their own Chamber. The Prosecutor
14 has a responsibility that she must perform. She must
15 examine all her material right across the board, and if
16 she has any material, then she has a responsibility
17 under those Rules to deal with it, but it is not a
18 matter for Your Honours, in my respectful submission;
19 and accordingly, I would suggest that Your Honours
20 should dismiss this motion on the basis that (a) there
21 is no standing to bring it, because the Rules don't
22 provide for an accused in another case to bring a
23 motion in this case. But, secondly, they have a
24 remedy: The remedy is before their own Chamber. Also,
25 there is no basis in law under the Statute or the Rules
1 to create an obligation upon this Trial Chamber itself,
2 separate and distinct from the Prosecutor, to make
4 Those are my submissions, Your Honours,
5 unless I can assist Your Honours with any other matter.
6 JUDGE RODRIGUES: Thank you very much,
7 Mr. Niemann.
8 Thank you very much. We might listen to the
9 Defence first so as to hear all the arguments and then
10 possibly we will have questions to put to you.
11 Thank you very much, Mr. Niemann, for your
13 Mr. Mikulicic, you have the floor.
14 MR. MIKULICIC: Thank you, Your Honours.
15 Unlike my learned friend the Prosecutor,
16 Mr. Niemann, the Defence is of the opinion that the
17 application of Defence counsel from the Kordic case is
18 fully justified, and the Defence agrees that Defence
19 counsel in the Kordic case be given insight into all
20 the materials in this case without any prejudice as to
21 which of those materials the Defence may actually use
22 in the Kordic case.
23 When we're talking about non-public
24 materials, evidence or testimony provided under
25 protection in a closed session, or enjoying any other
1 form of protection, it is our submission that there is
2 no reason for not allowing the Defence counsel in the
3 Kordic case to gain insight into those materials, on
4 condition that Defence counsel be placed under the
5 obligation not to disclose to third parties; a
6 principle that you were guided by in the Aleksovski
8 It is the position of the Defence that the
9 legal grounds for Defence counsel in the Kordic case
10 should be understood very simply. It is, in fact, an
11 endeavour to equilibrium in the position of the parties
12 in the case. I think there is no dispute that one of
13 basic principles is the equality of arms of the parties
14 to the proceedings.
15 I think that it is also indisputable, as we
16 have had occasion to see ourselves in this Aleksovski
17 case, that this quality of arms has been impaired and
18 to the advantage of the Office of the Prosecution.
19 This is obvious, and it can be seen from the
20 Prosecution request in this case, that the Office of
21 the Prosecution has insight into those testimonies
22 given in closed hearings. On the other hand, the
23 Defence does not have any such insight, nor can it gain
24 access to those materials. Therefore, what the Defence
25 is requiring from the Kordic case is to equalise their
1 position with that of the Prosecution, because if one
2 party to the trial, the Prosecution in this case, can
3 gain insight into materials from closed sessions, why
4 should not we ensure that same right to the other
5 party, the Defence? We feel that in that way we would
6 ensure a quality of arms between the parties in the
8 My learned colleague, the Prosecutor, is of
9 the opinion, and it is an opinion that I can only
10 partly share, that this situation is covered by Rule
11 68, which requires of the Prosecution to disclose to
12 the Defence any evidence which the Defence may use to
13 support its case. I agree with that, but there is a
14 matter of principle that arises.
15 If that is the duty of the Prosecution, and
16 if it applies to all cases being heard by this
17 Tribunal, is it objectively possible for the
18 Prosecution in the Kordic case to devote equal
19 attention to all the evidence from the Blaskic case and
20 the Aleksovski case? This is a vast amount of
21 material, and I think it would be physically impossible
22 to give equal attention to all these materials. And
23 let us assume that physically and realistically that is
24 possible, then another problem arises; that is the
25 interpretation of the credibility and probative value
1 of various kinds of evidence.
2 What may occur is that the Prosecution,
3 acting in line with Rule 68, does not assess a
4 testimony or evidence as being relevant for the
5 Defence, whereas on the other hand, in the opinion of
6 the Defence, that same evidence may be considered to be
8 Here again, I note a certain inequality.
9 Why? Because the question of assessing the relevance
10 of a -- of an exhibit or of a piece of evidence,
11 whether it can be mitigating or totally exculpatory for
12 the guilt of the accused is assessed from the
13 standpoint of the Prosecution.
14 I should like to draw your attention to Rule
15 68, and one word in that Rule which I consider to be
16 particularly important, and that is the word -- it
17 refers to evidence "known" to the Prosecutor. I think
18 that this provision needs to be interpreted in a way
19 that I consider to be logical, and that is that the
20 Prosecution is obliged to disclose to the Defence, in
21 the particular case, evidence known to the Prosecutor.
22 It doesn't say that the Prosecutor has to know all the
23 evidence in all the cases.
24 Finally, without having any doubt as regards
25 the good intentions and honourable approach on the part
1 of the Prosecution to the evidence, it may occur on
2 occasion that the Prosecutor may simply neglect this
4 Let me remind you of such a case that
5 occurred in the Aleksovski case. The Prosecution spoke
6 to Witness DA and it received information from Witness
7 DA, but it did not inform the Defence of the same, even
8 though this was information which can certainly of use
9 to the accused. The Defence learnt about this quite by
10 chance, because when speaking to the Witness DA, the
11 witness said, "I've already told all this to the
13 I'm not saying that there was an intentional
14 error on the part of the Prosecution, but we're all
15 human beings. Our capacities are limited. Therefore,
16 I don't think we should place any obstacles in the way
17 of the Defence counsel in the Kordic case for insight
18 into the material under the obligation that they must
19 respect confidentiality, an obligation that applies to
20 all the participants in these proceedings.
21 In my submission, Rule 68 cannot be
22 interpreted extensively, that is, as if it were to
23 apply to all cases, but, rather, that the intention
24 behind this Rule is to have a more restrictive
25 interpretation, and that would be that it is the
1 Prosecution's obligation to inform the Defence of the
2 evidence known to the Prosecutor, and those are the
3 materials that crop up in the course of the
4 investigations into the case in question.
5 Without wishing to tire you any further, it
6 is our submission that the application should be
7 granted because it is based on a very fundamental
8 principle, the principle of equality of arms of parties
9 in the proceedings, and it is our submission that it is
10 up to you to grant such an application, because these
11 are materials that were presented in the course of the
12 presentation of evidence in the case under your
14 For the present, the Defence has no further
15 remarks to make. If necessary, we are at Your Honours'
16 disposal. Thank you.
17 JUDGE RODRIGUES: Mr. Niemann, I think
18 Mr. Mikulicic did not use that expression, but at the
19 end he gave the impression that the Prosecution was
20 omnipotent, it controls the Tribunal, the Prosecution
21 and the Defence. I'm not saying that Mr. Mikulicic
22 actually said that, but in any event, Mr. Mikulicic has
23 raised a series of questions that you may wish to
25 MR. NIEMANN: The first thing I should assure
1 Your Honours, is that the Prosecution is not omnipotent
2 in any way.
3 The issue of discovery is a very heavy burden
4 that has to be carried by the Prosecution, and I'm sure
5 there are times when people would feel that perhaps it
6 would be nice if that burden would be shared, but it
7 creates considerable impractical consequences if it
9 In different types of proceedings, perhaps
10 the proceedings to which Mr. Mikulicic is accustomed
11 to, the Prosecution may not be placed in a situation
12 where it must entirely carry that burden, because in
13 some respects, the investigative Judges assist in the
14 process of gathering the material that's presented to
15 the Court. From my reading of the Rules of the
16 Tribunal, it seems that the approach taken to discovery
17 has been to place that responsibility upon the Office
18 of the Prosecutor.
19 Mr. Mikulicic very generously suggested that
20 it would be a heavy burden on the Prosecutor to have to
21 examine the material in this case in order to determine
22 whether or not it fell within Rule 66 or 68 for the
23 purposes of the Kordic and Cerkez cases.
24 Let me assure Your Honours that if that was
25 the extent of the burden imposed upon the Prosecutor,
1 it would indeed be a very easy burden compared to the
2 one that we must carry. The Office of the Prosecutor
3 has literally thousands upon thousands of documents and
4 material in its store which it must go through in every
5 case in order to determine whether or not any of that
6 material falls within the Rule 66 and 68. Under no
7 circumstances do we in any way claim to be perfect in
8 this exercise, but the advantage of dealing with the
9 Aleksovski case as an isolated incident is it has a
10 beginning and an end, and we know exactly what we are
11 to look for, and to the extent of our discovery
12 obligations contained within the parameters of what is
13 in this case.
14 I have been informed, Your Honours, that the
15 Aleksovski case has already been fully examined by
16 Prosecuting counsel in the Cerkez and Kordic cases, and
17 has already determined that there is nothing he can see
18 that falls within Rule 66 and 68 in these proceedings
19 in relation to Messrs. Kordic and Cerkez. So, Your
20 Honours, if Mr. Mikulicic is concerned about the
21 responsibilities imposed upon the Prosecutor in having
22 to carry out this task, let me assure him, Your
23 Honours, that it's much broader, much wider and far
24 more onerous than that.
25 With respect to equality of arms, well, I
1 mean, these are terms that can be likely thrown about,
2 and sometimes lose their meaning when they are. There
3 is an issue of equality of arms, but it doesn't extend
4 to the Defence being placed in the possession of all
5 the information that is at the disposal of the
6 Prosecutor. That is not what it means. The Prosecutor
7 has an obligation and duty to carry out investigations
8 in respect of matters that arose right across the
9 former Yugoslavia. The Prosecutor's office is in
10 possession of a vast amount of material.
11 It cannot be surely suggested that somehow or
12 other we have some advantage because we are in position
13 of all of material and the Defence is not in possession
14 of it. The issue of equality of arms comes to what we
15 have to bring before the proceedings.
16 There are very onerous and extensive
17 obligations placed on the Prosecutor in order to ensure
18 that any material that she has under Rule 68 which may
19 be exculpatory or mitigating are discovered. These
20 matters are taken very seriously, and there's very
21 serious consequences to the Prosecutor if she fails in
22 this duty. I'm sure Your Honours would accept that the
23 Prosecutor would never deliberately fail in this duty,
24 but there are times, because of the extensive amount of
25 material, when it is true that some materials are
1 discovered late, and are always discovered immediately
2 to the Defence the moment they are found. But this
3 wouldn't happen with the parameters of a case such as
4 Aleksovski, where we know exactly what the material is
5 and where it is, and we know it -- we have direct
6 access to it. With respect, Your Honours, that's an
7 easy process of examination.
8 It's what's contained in the vaults of the
9 Office of the Prosecutor that is hard to determine,
10 because at times they are filed under other issues
11 which don't come to light until much later. And
12 because of our extensive computer system, we are aided
13 and assisted in going through our computer records in
14 discovering this material, and we are very satisfied
15 that it works as effectively as one could possibly
16 expect it to work in the circumstances.
17 But is that a matter for Your Honours? In my
18 respectful submission, no, it is not. Your Honours
19 can't take over this huge task of going through all the
20 material that's held by the Prosecutor. In my
21 respectful submission it shouldn't fall upon Your
22 Honours to examine even the material in the Aleksovski
23 case, which we say is confined, in order to make a
25 Mr. Mikulicic says, "Well, just give them all
1 of it." Well, Your Honours, there's nothing under the
2 Rules, or the Statute or anywhere else which says that
3 they're entitled to every piece of material that has
4 gone public. That's not the exercise at all. It's
5 material which could be beneficial to the defence of
6 Kordic and Cerkez, it's just not every piece of
7 non-public material. Presumably that includes all the
8 non-public material of the Defence as well.
9 Now, they may not be concerned, Your Honours,
10 about their non-public material being released, but
11 with respect to ours, we have an arrangement with
12 witnesses and expectations that they have, and so it is
13 important to identify what is discoverable under the
14 Rules and to deal precisely with that material and not
15 to open up some general ambit of discovery.
16 In my respectful submission there is nothing
17 in the Rules that says that discovery should be
18 extended beyond Rule 66 and 68. There's nothing in the
19 Rules that says that Your Honours have an obligation to
20 make a discovery, and I am -- I am surprised that the
21 application would be made by Mr. Mikulicic in this case
22 that somehow or other all of the materials should be
23 made available in that, but that, of course, is a
24 matter for him.
25 Unless there are any other matters, Your
1 Honour, that's my response.
2 JUDGE RODRIGUES: Mr. Niemann, I should like
3 to address a few questions to you. We know that in the
4 Tribunal there is an ongoing interesting dialogue
5 between the common-law and civil law systems that you
6 yourself referred to, but I think that we have an
7 international system which is neither common-law nor
8 civil law. It is our system.
9 Nevertheless, I should like, in this dialogue
10 that we have embarked upon, to address a few questions
11 to you to understand better both the position of the
12 Defence, as well as the Defence here, and the position
13 of the Kordic Defence.
14 Is it true or not that the Prosecutor has, as
15 you said yourself in a way, has concentrated all this
16 information coming from various cases? I think that
17 the Office of the Prosecutor is a single one, it has
18 its hierarchy, but you have access to all the
19 information coming from several cases. Is that true or
21 MR. NIEMANN: Yes, Your Honour, that's true.
22 JUDGE RODRIGUES: It's true. Therefore, you
23 are familiar, at the same time , with all the evidence
24 of the Blaskic, Aleksovski case, Kupreskic case,
25 Furundzija case and so on, but the Defence is not
1 familiar with the totality of this information, because
2 the Defence is not a single body. It doesn't have a
3 concentration of all that information, I think.
4 At least from the formal standpoint, one can
5 say that the Defence is an individual entity. The
6 Prosecutor is also an individual, but has several
7 associates that may share amongst themselves the
8 information from all the different cases, and that is
9 why I personally often have certain doubts whether each
10 case is a case with its own individuality or is it a
11 case with certain elements of identity of other cases,
12 because I think that this is very important from the
13 standpoint of the conduct of each case. I don't know
14 whether you understand me.
15 My question regarding the equality of arms;
16 you have often said that there is sometimes a certain
17 mistrust, that there is very defined contents, but in
18 reality, do we indeed have a true equality of arms?
19 Because it is also true, in my view, that the Defence
20 has other resources which the Prosecution doesn't. It
21 is in the field, it knows very well all the persons who
22 have access to documents, the local circumstances and
23 everything. So I'm asking this question very frankly:
24 Does equality of arms exist or not?
25 I don't know whether you could comment on
1 what I have just said, because it's not really a
2 question that I'm asking you, it's rather a wish to
3 share with both parties my concerns.
4 May I also add one further point? I think
5 there is a certain specificity among each of the cases,
6 Blaskic, Kordic, Aleksovski. It is true that there are
7 other cases regarding the Lasva Valley, but these were
8 all a part of the same indictment. I think at least
9 with regard to Aleksovski, Blaskic and Kordic, we could
10 find certain interrelationships, because they were part
11 of the same indictment with the same supporting
12 materials. They were severed, yes, but I still think
13 they hadn't lost certain links amongst themselves.
14 Finally, we have certain reservations,
15 because we are talking about non-public documents. But
16 if this was not the case, if there were no protective
17 measures, would there be any problem? Because this
18 evidence was public. So the real question for me could
19 be whether the protective measures have been
20 safeguarded or not. If we didn't have those protective
21 measures, then these materials would be public and
22 there would be no problems.
23 Another question is the following:
24 Mr. Niemann, there is another question that I should
25 like to raise. We are involved in the Aleksovski case
1 and we are discussing a motion from the Kordic case,
2 but yesterday we touched upon another question. The
3 Prosecution had asked for the admission of non-public
4 evidence from Blaskic to Aleksovski. What is the
5 difference between this and the admission of Aleksovski
6 material in the Kordic case, particularly if we bear in
7 mind what I've just said, and that is that in all the
8 cases in the Lasva Valley, Kordic, Blaskic, and
9 Aleksovski, they were all part of the same indictment.
10 Therefore, if they have any individual traits, then
11 that individuality is constituted by elements of the
12 identity of the other cases because they have some
13 common elements.
14 I don't know, Mr. Niemann, whether we could
15 not find here a certain inconsistency within the same
16 Office of the Prosecution in the way I have just
17 described. The same Office of the Prosecution is
18 asking one thing -- I am not trying to judge, but it
19 would seem to me that they are making an opposite
20 request in a similar situation. And I share also the
21 question posed by the Defence. It is true that there
22 is Rule 68 and, Mr. Niemann, you did refer to it and
23 explain it, but who can judge if the Prosecutor has
24 given to the Defence or not all the evidence known to
25 it? Perhaps the Defence has its own defence strategy,
1 and it would be in a better position to know what would
2 be exculpatory and what would not.
3 So if you could assist me, because I have
4 made a whole series of points, among them there are
5 some questions, so I apologise for being so broad, but
6 I would like to hear your opinion and what you think
7 about all this.
8 One further point -- I beg your pardon,
9 Mr. Niemann -- I have my notes. Mr. Meddegoda will
10 have to continue taking notes.
11 The other point is the following. I think
12 that I understood that your reason was as follows:
13 Kordic and Cerkez are addressing a motion to the
14 Aleksovski Chamber, and I think I understood your
15 arguments that they really belong to another case and
16 that they are not legitimately posed in this case. But
17 as I said at the beginning of our debate, the
18 Aleksovski Trial Chamber was officially addressed by
19 the Blaskic Chamber -- no, I'm sorry, by the Kordic
20 Chamber. The Kordic Chamber has officially addressed
21 the Aleksovski Chamber with this request and asking for
22 its response. I saw this motion this morning. But you
23 said that your solution would be that the Kordic
24 Defence should ask its own Trial Chamber -- allow me to
25 use this term -- to ask its Chamber, that is the Kordic
1 Chamber, and that the Kordic Chamber will communicate
2 the materials. The Kordic Chamber is the Kordic
3 Chamber, but the materials that it could communicate
4 are in the possession of this Trial Chamber, so only
5 this Trial Chamber can issue such a ruling. I don't
6 see how your suggestion could resolve the problem
7 because the Kordic Chamber cannot order the Aleksovski
8 Chamber to disclose evidence which Kordic and Cerkez
9 have indicated to the Kordic Chamber.
10 So, you see, you have a whole series of
11 questions. The Aleksovski Chamber, we, the Judges,
12 have this difficult task of deciding, and we would like
13 to hear your opinion about all these points and
14 questions which you could perhaps comment on, and I am
15 looking forward to hearing your opinion; and, as
16 regards the questions, I look forward to hearing your
18 I apologise for imposing such a heavy burden
19 on you, but I am sure you are capable of responding
20 perfectly well. Thank you.
21 MR. NIEMANN: I will do my best, Your
22 Honour. If I missed some of the earlier questions
23 raised by Your Honour, I would be most grateful if you
24 could remind me of any that I omit to address.
25 I think what Your Honour is really asking me
1 deals with a question of, are the Rules satisfactory?
2 It may be that Your Honour's question relates to the
3 Rules themselves.
4 My submission is upon the interpretation I
5 have placed upon the Rules. Now, that could be amended
6 if, Your Honours, I may be wrong in my interpretation.
7 But the way that I have interpreted the Rules is this,
8 that when it comes to making discovery of material,
9 that that burden has been placed upon the Office of the
10 Prosecutor, and I can't find any other Rules and I
11 can't find anything in the Statute that says that this
12 is a burden that should be shared by the Chambers
13 themselves other than ensuring that the Prosecutor does
14 its job.
15 I don't know of any mechanism available to
16 permit or to allow the Trial Chamber to itself embark
17 upon a process of discovery, which is really
18 essentially what is being asked by this motion. I
19 don't know of any Rule or any Article in the Statute
20 that says this is what Your Honours should do, because
21 it doesn't just stop with the case that is before Your
22 Honours as it is cast, as the argument is cast by the
23 accused Kordic and Cerkez. The way they cast it is
24 this: They say, "We have a right to a fair trial, and
25 because we have a right to a fair trial, we're entitled
1 to discovery of all the non-public material in the
2 Aleksovski case."
3 Now, presumably some judgment has to be
4 made. Do they get everything? Why would they get
5 everything? What would be their right and entitlement
6 to everything in the Aleksovski case?
7 JUDGE RODRIGUES: Excuse me, Mr. Niemann.
8 Perhaps this is an occasion to bring up another
10 [Note: Two simultaneous interpretations
11 follow in the interpretation of Judge Rodrigues'
12 comments in this passage only]
13 Mr. Niemann, if the Defence in the Kordic
14 case requested one thing which is to be informed of the
15 materials that are available, if they only wanted to
16 know what were the available documents, and then, in a
17 further stage, the Kordic Defence may come back saying,
18 "For this reason, I wish to have such and such a
19 material." If the Defence wants to have an overview of
20 all the elements and then to be able to come and say,
21 "I wish Exhibit number 1 and Exhibit number 10," then
22 one could ask why did the Defence need to have admitted
23 into the Kordic record exhibits belonging to the
24 Aleksovski case?
25 I apologise for interpreting you, but perhaps
1 this is the opportunity for bringing into place this
2 other perspective.
3 MR. NIEMANN: "How is it done?" I think is
4 what Your Honour is asking me. How it is done is not
5 to come to this Chamber. How it is done is to persuade
6 the Chamber in the Kordic and Cerkez case to order the
7 Prosecutor to provide a list of the non-public
8 materials in this case.
9 Now, if the Prosecutor says there are certain
10 materials which we are concerned about making available
11 for whatever reason -- it doesn't matter what it is --
12 it does it by way of ex-parte application, and it goes
13 to the Chamber in the Kordic and Cerkez case and says,
14 "This is the material in the Aleksovski case. This
15 material we say is not discoverable and Your Honours
16 should make a decision in that case," and therefore the
17 debate is put into the appropriate Chamber. Otherwise,
18 Your Honours are trying to do it here, and I don't know
19 how much Your Honours know about the Kordic case, but
20 certainly I wouldn't have enough knowledge at all to
21 make any decisions on whether or not it falls under 66
22 or 68, and I think the wisdom of the Statute and the
23 Rules is that it should be left to determine by the
24 Chamber that handles the case because it's the only one
25 that can determine the fair balance in the matter.
1 So that, in my respectful submission, is how
2 it is done, it is done that way. And why is it done
3 that way? Because the Rules expressly permit the
4 Defence, Kordic and Cerkez, to go by way of motion to
5 that Chamber and say, "We are not satisfied with
6 discovery. We don't believe the Prosecutor. The
7 Prosecutor has told us that there is non-public
8 material in the Aleksovski case and they've said none
9 of it comes under Rule 66 or 68. We don't believe
10 them. We think that they're not telling us everything
11 that they should tell us. Please force the Prosecutor
12 to do that." That Chamber then has the power. It
13 says, "Mr. Prosecutor, go away and tell us what's in
14 that case."
15 Now, if the Prosecutor is concerned about
16 revealing all of it, he can deal with the Chamber. He
17 can go to the Chamber and say, "Your Honours, here is
18 my list of all the material in the Aleksovski case, but
19 we don't want to release it for the following
20 reasons." And a whole debate can ensue and the Court
21 can make orders. But are Your Honours going to do
22 that? Are Your Honours going to say, "I believe, as
23 the Judge in the Aleksovski case, that this document
24 ought to be discovered in the Cerkez and Kordic case
25 because we believe that it is relevant to the
1 Defence"? If Your Honours do that, I think you are
2 taking upon a task which is very difficult because you
3 are not privy to the information that is before that
4 Chamber, and that is why the Rules are cast in the way
5 they are. That is why the Rules say that they are
6 parties. And what are parties? The parties are the
7 Prosecutor and the accused.
8 Now, what happens, Your Honours, if I, for
9 example, don't fully comply with whatever it is that
10 I'm supposed to respond to in this Trial Chamber in
11 relation to material in another case? I don't know the
12 details of that case. This case that I am concerned
13 relates to Mr. Aleksovski. So if I don't discover
14 something in this case, clearly Your Honours know
15 immediately whether or not it should have been
16 discovered, clearly Your Honours can take whatever
17 appropriate action is necessary for that failure. But
18 if we start embarking upon making judgments about what
19 is relevant for the Defence of another case when it's
20 not our case, this, in my respectful submission, is
21 going to lead to a chaotic result. So that is why it
22 says under the Statute that the Trial Chamber is to
23 provide the accused with a fair trial in accordance
24 with the Rules, and what that means is that the
25 Chamber, in that case, must do so, but it doesn't fall
1 upon Your Honours.
2 Your Honours asked me about the process of
3 discovery and whether or not it is true equality of
4 arms, that there is a broad number of cases. I didn't
5 draft the Rules; I am bound by them in my argument.
6 There could have been incorporated into the Rules a
7 mechanism whereby a Judge, any Judge could be appointed
8 to supervise and to pursue discovery. This Judge
9 presumably may not sit on the trial itself but this
10 Judge may have a responsibility to go into the files of
11 the Office of the Prosecutor, to set up an office
12 there, and go through all the material to make sure
13 that discovery takes place, and then to prepare a
14 dossier, which dossier contains all of the material
15 that the Judge has decided is appropriate for that case
16 and then to either sit on the case and determine it,
17 having regard to the dossier or, alternatively, simply
18 submit it and let the Trial Chamber deal with it in
19 that way. But I don't find any of that provided for in
20 the Rules.
21 The course that has been adopted, it seems to
22 me, in the Rules is to say: No, that's not going to be
23 the responsibility of the Chambers, this is going to be
24 the responsibility of the Prosecutor, and if the
25 Prosecutor doesn't do it right, then the sanction will
1 fall to the Prosecutor. I don't know what happens when
2 an investigative Judge omits relevant evidence in a
3 case. I'm afraid I have no experience in that area.
4 But I certainly know the consequences when a Prosecutor
5 does it.
6 So, Your Honours, it seems to me that, yes,
7 the Office of the Prosecutor is in possession of a wide
8 range of information. I don't for one minute suggest
9 that there may be material in one case that could
10 ultimately be relevant in another. Sometimes the
11 process of discovery, you can't judge it right from the
12 outset. Things arise during the course of a case, and
13 opinions that you may have had about whether or not
14 material is discoverable changes as the case goes on
15 because circumstances arise.
16 I think Your Honours' quarrel was not with my
17 submission but with the Rules themselves because I
18 don't believe that the Rules cast that responsibility
19 on the Chambers.
20 Your Honours, I'll just check ...
21 Your Honour also asked about the issue of
22 protective orders. That would have to be dealt with,
23 in the instance that I envisage, where the Kordic and
24 Cerkez Defence persuade the Trial Chamber that the
25 Prosecutor should provide a list of all the materials
1 in this case, for example. If they are able to
2 persuade the Bench that that was the appropriate
3 course, then the Prosecutor would have to make a
4 judgment as to what it could disclose without breaching
5 the order, and if it couldn't, to come to this Chamber
6 and say, "We have been given this order to disclose all
7 of this material and we are concerned about the
8 following, we wish to do the following, and may we seek
9 a variation of the order, protective order, in order to
10 make it viable in that case?"
11 I don't think, Your Honours, that it's true
12 that there is some sort of automatic similarity between
13 cases. This case itself has been very much confined to
14 what happened in the Kaonik prison, and the Kordic case
15 goes over a much broader area. There may be issues in
16 the Kaonik prison which may ultimately be relevant. I
17 don't know. But it seems to me that one just can't say
18 that because this case is in the Lasva Valley,
19 therefore it somehow or other is relevant to other
20 cases that involve that valley. Otherwise, this case
21 would not have lasted the time that it has; we would
22 have been here for years, probably on end, trying to
23 produce all of the evidence in relation to the whole of
24 the Lasva Valley. I mean, it's what differentiates
25 this case from the Blaskic case, which is a much bigger
1 case. And so therefore, Your Honours, I don't think
2 that you can automatically say that the evidence in
3 this case would be relevant to the Defence in another
4 case. It is a judgment. Somebody has to make that
5 judgment. Under the Rules, the Prosecutor has been
6 given the responsibility to do it; and as I say, it is
7 not entirely in the province of the Prosecutor. The
8 Trial Chamber has the responsibility to ensure the
9 Prosecutor is doing her job. And the Chamber can do
10 things; it's not beyond the ingenuity of the Chamber to
11 devise means to supervise the Prosecutor to be sure if
12 there is any concern at all.
13 Finally, I think Your Honours asked me about
14 the question of material that we want to produce in
15 this case that arose in the Blaskic case.
16 We make no apologies about the fact that we
17 knew about this material. We made a value judgment as
18 to whether or not we would produce it in this case and
19 decided that it wasn't necessary until further evidence
20 had been introduced. I don't want to traverse the
21 whole thing. But the fact that we knew about it
22 doesn't create an inequality of arms because we are in
23 possession of a vast amount of material, and it would
24 be absolutely impossible to prosecute these cases if we
25 had to hand over thousands upon thousands of documents
1 in every case just because the trust that has been
2 given to us to make a determination under 66 and 68 was
3 not there. I mean, this would become chaotic.
4 Thousands of pages of material would have to be handed
6 A lot of the information that the Office of
7 the Prosecutor has gathered is confidential
8 information. A lot of the information that the
9 Prosecutor has gathered is for future cases. The early
10 revelation of that material would be of enormous
11 consequence to the prospect of any success in future
12 prosecutions. We have a difficult job, when we see
13 material which has been gathered for a future case and
14 it becomes discoverable under Rule 68, we have a
15 difficult job to decide, Okay, this material must be
16 discoverable, but what are we going to do? What are
17 the consequences that flow from now making it available
18 prematurely? But that is something we have to live
19 with and it is something we do and we do it on a
20 regular basis.
21 If you are saying that, well, the Prosecutor
22 can't really judge what a Defendant might want, then it
23 doesn't just arise in these cases, it arises right
24 across the board, and in my respectful submission, the
25 Rules don't envisage that an investigative judge can go
1 in there and pursue that. If the Rules change, my
2 submissions would change accordingly.
3 JUDGE RODRIGUES: Mr. Niemann, I see that
4 time is running out. All of what you have said has
5 been very interesting.
6 I'm looking also towards the interpretation
7 booth. They are signalling that maybe we should take a
8 break. They do need a rest. We still have the whole
9 of the afternoon to discuss this matter, so I think we
10 will now take a 20-minute break and then we will resume
11 our hearing, and maybe, Mr. Meddegoda, you can take
12 notes and tell Mr. Niemann which questions he has
13 omitted, which questions he has addressed.
14 So a pause of 20 minutes.
15 --- Recess taken at 3.45 p.m.
16 --- On resuming at 4.17 p.m.
17 JUDGE RODRIGUES: Mr. Niemann, you have the
18 floor. You may continue. We are all yours and we will
19 pay a lot of attention to your arguments, as we always
20 do, might I add.
21 MR. NIEMANN: During the break I've been
22 shown the decision of the Chamber in the case of Kordic
23 and Cerkez in relation to this issue, and it is indeed
24 the first time that I have seen it. What I have
25 noticed is that Your Honour is also a Judge of that
1 Chamber, so all I've said about your not being in a
2 position to judge the relevance I withdraw.
3 But if you ask me then should it be, as Your
4 Honour is presiding in this Chamber, I would still
5 answer no, but I would say that there is another Rule,
6 which is Rule 85 (v), which I think would probably
7 provide Your Honour with the provision whereby you
8 could put evidence in in the course of proceedings,
9 seeing as that Your Honour is sitting on both
11 But I would go back to what I said, and say
12 that it still doesn't become an issue for this Trial
13 Chamber itself to take on the responsibility of
14 discovery based on the fact that the accused Kordic and
15 Cerkez say they are entitled to a fair trial.
16 Your Honours --
17 JUDGE RODRIGUES: Sorry for interrupting you,
18 Mr. Niemann. That is precisely why the Trial Chamber
19 in the Kordic case decided that the Chambers should be
20 addressed to and not the Presiding Judge of a Chamber.
21 That's the reason why I'm sitting here with my
22 colleagues and not on my own.
23 MR. NIEMANN: Your Honours, I just reviewed
24 some of the issues that were raised earlier, and Your
25 Honour has asked me to do that.
1 Your Honour spoke of the links between the
2 cases, and that sort of gives rise to a commonality of
3 evidence applicable. We haven't suggested that that is
4 not so, but I think that there's a very fine analysis
5 that has to go on in relation to what happens in the
6 event of severance.
7 The situation with severance, Your Honours,
8 in my submission, is this: That in many instances it
9 comes out to be favourable to the Defence if there is
10 large indictment where all the parties are joined.
11 It's favourable to the Defence if it is severed,
12 because evidence which is against other accused is not
13 brought into the consideration of the Tribunal of fact
14 when this comes to decide whether or not a particular
15 accused has committed the crime. So there is a paring
16 down of evidence. It's pared down because if there is
17 severance, it is open to the accused to argue before
18 the Chamber, "This evidence shouldn't be admitted in my
19 trial. It's not relevant to me, it's relevant to
20 another accused."
21 Now, in the event of a joint trial, the
22 accused can't do that because the Prosecution is
23 leading evidence against all accused. So the Tribunal
24 of fact hears the broad ambit of the evidence, and
25 sometimes accused persons argue, sometimes rightly,
1 sometimes wrongly, that that broad evidence that's
2 brought against all the accused works a detriment to
3 the accused, and so that's why a motion for severance
4 is applied.
5 I'm not trying endeavouring to lecture Your
6 Honours, what I'm trying to do is lay the foundation of
7 the problem that we have here.
8 When the indictment is severed, however,
9 there are certain disadvantages, and the certain
10 disadvantage is that the rich texture of the evidence,
11 which sometimes is beneficial to not only the
12 Prosecution but to the Defence as well, is often lost
13 because it's pared down. So you do have a situation --
14 if I was on that side of the court, I could imagine
15 being in a situation where I'm saying, "But there's
16 lots of things that came out in the Blaskic case and
17 the Kordic case, or some other case, which I would have
18 really liked to have had at my disposal when I was
19 defending 'Mr. X'," but that is the consequence that
20 flows from severance. You have to make that decision,
21 because you have this conflict between the totality of
22 the evidence that could be led and honing down on the
24 What then can be done to resolve it in order
25 to ensure a fair trial, because it may be that there is
1 evidence before another Chamber which should properly
2 be put into this case in order to ensure a fair trial.
3 And Your Honour quite rightly says, "Well, what happens
4 if it's not public and we don't know about it?"
5 Well, that does create a problem. There's
6 two potential replies to it. One is that to a certain
7 extent that is the consequences of your decision to
8 sever. To a certain extent that is. But that rather
9 harsh decision can't be taken so far as to suggest that
10 a person can't have a fair trial.
11 So the solution to it is not to go before the
12 other Chamber, as happened in this case, to come before
13 the Aleksovski Chamber and say, "I am Mr. Kordic and I
14 want the benefit of some material that's been entered
15 in the Aleksovski case but I don't know what it is."
16 The procedure is the procedure that I laid
17 out. You really need to go before the Kordic and
18 Cerkez Chamber and say, "In order for me to have a fair
19 trial, I really need to know what is there." And what
20 has happened under the Rules is that the Tribunal, in
21 drafting the Rules, has decided, "That's a
22 responsibility we'll give to the Prosecutor."
23 Now, I'm not saying that that is the end of
24 the matter. It may be that the Trial Chamber says, "We
25 still aren't happy with this." It may still be that
1 there is confidential material that in order to ensure
2 there is a fair trial should be made available.
3 The point is this: That any decision that
4 you have made in the Aleksovski case relating to
5 confidentiality doesn't bind the other Chamber, it
6 binds the parties. We are not allowed to make it
7 available to the public, the Defence are prevented from
8 making it available to the public, but that information
9 can go to another Chamber. That's what I meant when I
10 said the Prosecutor can be called upon to provide a
11 list of ex-parte material -- sorry, to provide a list,
12 ex-parte, of the material that was tendered in this
13 case to comply with this request, if that was what the
14 decision of the Chamber would be.
15 The Prosecutor can then go before the Trial
16 Chamber and argue the issue of whether or not it should
17 properly be discoverable under the Rules, and it's that
18 Chamber that then can deal with it.
19 So if that happens, the Trial Chamber in the
20 Kordic and Cerkez cases is, in fact, supervising the
21 process of discovery, something which it is perfectly
22 entitled to do under the Rules. It does it by a
23 process of supervision of the parties in the case
24 before it. It does it because it's in the interests of
25 a fair trial, because the accused in that case is
1 saying, "I am entitled to a fair trial. Under Article
2 20 it's your responsibility to ensure that I get one,
3 and I can't have one unless I know what has been
4 presented in another case."
5 That is the process which the Rules, in my
6 respectful submission, envisage. It doesn't envisage a
7 situation where Your Honours actually take that task
8 upon yourselves. And when I say this I speak for Judge
9 Vohrah and -- but not Your Honour, I'm excluding Your
10 Honour from that.
11 So, Your Honours, I understand that there is
12 an obvious concern that you might have of a throwing
13 back and forth of the parties in this issue. They go
14 to one Chamber which is their own Chamber, and it says,
15 "We can't do much about it because the protective
16 orders have been imposed by another Chamber." I can
17 understand why Your Honours would be saying, "Well, we
18 don't want to throw them back again with no remedy.
19 They've already sought remedy in one Chamber, they've
20 come to us and we're throwing them back again."
21 It's not entirely a result without a remedy,
22 in my submission, because Your Honours can say that the
23 course that is open to them is the course that I have
24 laid out, and that is a course that is in accord with
25 the Rules. And the Prosecutor -- this issue of whether
1 or not a list is finally drawn up is something which
2 needs to be resolved in that Chamber, it shouldn't be
3 resolved here.
4 When it comes to the end of the day, when the
5 Kordic and Cerkez Chamber come to a conclusion that
6 this material, which is protected by an order of this
7 Chamber, is confidential but it should be released to
8 the Defence in the Cerkez and Kordic case and so
9 orders, it's then incumbent upon the Prosecutor to come
10 before Your Honours and say, "Your Honours, we have
11 been ordered in this case to disclose this material
12 pursuant to Rule 66 or 68," or whatever the Rule might
13 be, "and this material is covered by an order under
14 Rule 75. We ask this Chamber to please lift the order
15 to the extent that it can be made available to the
16 Defence subject to it being binding on the Defence,"
17 and Your Honours can do that. But that seems to me the
18 process that's available to you under the Rules. I
19 just cannot assist Your Honours with any other
20 procedure when I look at these Rules.
21 Finally, Your Honours, I think Mr. Mikulicic
22 made reference to Witness DA, and he said there is no
23 mala fides on our part, but we would maintain the
24 position, Your Honours, that Witness DA, his evidence
25 was not mitigatory, nor was it exculpatory. We didn't
1 call the witness, so we don't believe an issue of
2 discovery arose, frankly, but that's not an issue we
3 need to be concerned about in this case now.
4 Finally, Your Honours did ask me about what
5 is the difference between our request in relation to
6 the confidential witness in Blaskic and the request by
7 Kordic in this case.
8 I admit, Your Honour, that I'm a little
9 confused by the question in the sense that I think
10 they're entirely different issues. If we want to
11 present that evidence in this case, and if at the end
12 of the day Your Honours had decided we could have done,
13 we would have had to resolve the order made by the
14 other Court, whether it was an order Your Honours could
15 have made or whether it was an order that that Chamber
16 in Blaskic would have had to make to vary is something
17 we were uncertain of at the time, but it would have had
18 to have been resolved in a very much similar way. So I
19 don't see the connection between the two, with respect,
20 Your Honour, unless there is any aspect of it that I've
22 JUDGE RODRIGUES: Mr. Niemann, I think that
23 if you think that it is possible to import from the
24 Blaskic case some evidence that is not confidential,
25 even material that is protected by protective orders or
1 by any such decisions, if you think that is possible in
2 that particular case, I think that we can do the same
3 thing as regards the Kordic case and the Aleksovski
4 case. We could export from the Aleksovski case some
5 material in direction of the Kordic case, while
6 maintaining the same protective orders that have been
7 rendered by this Trial Chamber.
8 My question is the following: Why do you
9 agree to do this in one case, the Aleksovski case, when
10 you do not agree to do that in the Kordic case? Have
11 you understood my question?
12 MR. NIEMANN: I do, Your Honour, and I think
13 the answer is this, Your Honour: In relation to the
14 evidence in the Blaskic case, it wasn't a matter of us
15 going before the Blaskic Chamber, as putting on my
16 Aleksovski hat, if I might do that, and saying, "Your
17 Honours, would you please, in order to ensure that the
18 International Community has a fair trial, examine the
19 confidential material that's before you and then decide
20 what it is and then let us have that material."
21 This is information which the Office of the
22 Prosecutor had, but as I said earlier, we have a great
23 deal of information, a vast amount of information.
24 It's not only information that's before one of the
25 Chambers, there's a whole lot of material. And so
1 there is -- if that's considered an advantage, yes,
2 perhaps it is an advantage. I don't believe it's an
3 issue that comes to quality of arms, because it's not
4 an issue in the dispute between the parties of the
5 cases such that we have other material.
6 But we would have had to -- we didn't ask the
7 Blaskic Trial Chamber to take upon itself the
8 responsibility of making a determination of what was
9 discoverable and what wasn't, it was material that we
10 had that we simply wanted to use. And the problem that
11 I've raised in this case is not the exporting of the
12 material. The materials can certainly be exported.
13 The question is: Is it discoverable? If it becomes
14 discoverable, it certainly becomes exportable. The
15 issue of protective measures must be resolved, but it
16 certainly becomes exportable to the other case. I
17 don't think I need to traverse what happens if you
18 suspect that the Prosecutor is not being full and
19 frank. I think there's a procedure available for
21 JUDGE RODRIGUES: Another question that I
22 would like to put to you, Mr. Niemann, and maybe that
23 will help us conclude this argument on this issue.
24 There is one thing that worries me. I've
25 always been of the mind that it is preferable, when a
1 witness has to testify before several Trial Chambers,
2 even if the witness has been a protected witness in one
3 case and not in the others, I've always been of the
4 mind that it is preferable in such a case to admit his
5 evidence in the case in which the witness testifies a
6 second or third time. Then the other Trial Chambers
7 could ask information about the testimony of the
8 witness, information relative to the issues brought
9 before this Trial Chamber.
10 If a witness testifies before various Trial
11 Chambers, and if, for example, this witness testifies
12 before the Trial Chamber in Aleksovski, in the
13 Furundzija case, in the Kupreskic case and the Kordic
14 case, if we are in such a situation, and if each time
15 some information is asked about the testimony of the
16 witness, the risk of having the witness identified is
18 This is one question and then I have another
19 question for you.
20 What about the expert witnesses, as we call
21 them? I think there's also a high risk in that
22 particular case. There could be what we call a
23 freezing effect. The witness, because he repeats a
24 number of times elements of information that he's not
25 himself convinced of, if he repeats that element of
1 information again and again, then this dubious element
2 of information can be considered as quite valid and
3 quite credible.
4 I'm going to refer to a Latin word, forum, to
5 describe what happens in a courtroom. We should always
6 be aware of the fact that there is a risk that arises
7 when a witness testifies about the same facts in a
8 number of cases and before a number of Trial Chambers.
9 I think that we could take a number of
10 measures which would allow the witness not to have to
11 come before several Judges, several Trial Chambers in
12 several different courtrooms. In that particular case,
13 a presiding officer can be very useful because the
14 witness can testify before the presiding officer and
15 then the testimony is given to the Trial Chamber for
16 which it is relevant. If a witness comes once,
17 twice, thrice, when we already have his written
18 statement, only because we need this witness to testify
19 about one particular element of information, this
20 witness should not have to come and repeat all over
21 again what he has said before. The transcript of his
22 previous testimony can be of great use and can be the
23 document that is used in order to find the relevant
24 piece of information.
25 Maybe I am overly pessimistic, maybe I am
1 overly optimistic, but I do try to be realistic about
2 this particular issue.
3 Another thing. The territory over which this
4 Tribunal has authority is so small that almost all the
5 people living in that territory know each other and
6 they can share a lot of information between
7 themselves. All these issues we have to bear in mind.
8 So, again, I have not put forward one
9 question to you. I have made a general comment on a
10 number of issues. Maybe you have something to add to
11 this, maybe you don't, but if you do have something to
12 share with us, please do. I would be most grateful.
13 MR. NIEMANN: I think, Your Honours, that
14 some of the Rules that have now recently been
15 introduced are very innovative in this regard and will
16 endeavour, in a number of cases, to obviate the need of
17 repetition, say, for example, expert witnesses but not
18 only expert witnesses.
19 I think that Rule 94, I think it is, talking
20 of 94(B), talking of the adjudicated material, will
21 become a very useful provision in due course, but I
22 think the wisdom of the provision is that it deals with
23 material which has been adjudicated; in other words, it
24 has been accepted.
25 I will give you an example of that. If you
1 had a witness who testified at length in say, for
2 example, the Celebici case, this witness was an expert,
3 and I will give a concrete example. There was a
4 witness that we called in that case called Professor
5 Economides. He gave certain evidence about
6 nationality. In the course of that case, the Trial
7 Chamber not only quoted at length what Professor
8 Economides said but quoted it with approval and said
9 that not only was it accurate and correct but also they
10 relied upon it in order to come to the conclusion that
11 they did. It seems to me that it is almost a pointless
12 exercise to have to call that witness again, who has
13 been before the Trial Chamber, has testified, been
14 cross-examined, and it has been accepted.
15 It becomes a more difficult issue if that is
16 to be done with witnesses who have only testified in
17 the course of a proceedings and we don't know the
18 result, because we don't know the motive behind calling
19 witnesses in those cases, and it may be that witnesses
20 for either side may come along to testify with a
21 less-than-honest motive behind what they are saying.
22 Hopefully, that's sorted out by the Trial Chamber at
23 the time the decision is rendered, and we can then
24 accept or not accept its accuracy.
25 So I think, Your Honours, that, yes,
1 certainly there is room in due course, particularly
2 when it becomes evidence related to specific issues
3 which are not so directly personal to the case, such as
4 the issue of international armed conflict. But we are
5 still very much in our developmental stage and we
6 probably still have to hear some more evidence on this
7 question, but it seems to me that we may one day reach
8 a point where a number of Chambers have said this
9 conflict was either international or it isn't, and then
10 in those circumstances that becomes accepted as a
11 matter to which the Chamber can take judicial notice.
12 But there is, in my submission, a risk in accepting
13 testimony before judgment because we just do not know
14 at the end of the day what's going to happen, and there
15 is great room for inconsistency to result in that case.
16 I don't know whether that correctly answered
17 Your Honour's question, but I think, Your Honours,
18 there is a great deal of room for us to expand upon
19 procedure and to devise new ways.
20 When I spoke of the appointment of an
21 investigative Judge to supervise and analyse material,
22 who knows? There may be room in the Rules to do that.
23 I can't see it. I don't see it in the Rules. It's not
24 clear to me. It seems to me that the responsibility
25 has been given to the Office of the Prosecutor. But I
1 don't think that that's the end of the matter, if Your
2 Honours please.
3 JUDGE RODRIGUES: Thank you very much,
4 Mr. Niemann, for your contribution and for your various
5 arguments. The Judges are the ones who will eventually
6 have to make a decision on that particular issue.
7 Mr. Mikulicic, I don't know if you have any
8 questions to raise. Maybe you would like to address
9 the questions I put to Mr. Niemann. But I do have one
10 particular question that I wish to put to you: From a
11 formal point of view -- and I am going back on a
12 question that I put to Mr. Niemann a moment ago -- from
13 a formal point of view, the Office of the Prosecutor is
14 an individual entity, and Mr. Niemann has said that the
15 people in charge of the different cases share the
16 information between themselves. But from an informal
17 point of view, we can say that each case has an
18 individual Defence counsel, and these individual
19 Defence counsel do not have a common office within
20 which they share information.
21 But from what we see happening before our
22 eyes, we can say that within the Office of the
23 Prosecutor, there are a number of teams which do not
24 share their information with any other team of the
25 Office of the Prosecutor.
1 Now, as far as the Defence is concerned, even
2 though the Defence has no common office within which
3 information can be shared, individual Defence counsel
4 can and are free to share information, and we know that
5 to be a fact. We have admissions that lead us to think
6 that Defence counsel working in various cases have
7 shared information relating to these various cases.
8 So from a formal point of view, there is a
9 difference. The Office of the Prosecutor has in its
10 hands all the different elements of information
11 relating to all the cases which it is prosecuting,
12 whereas it is not the case for the Defence. There is
13 this difference.
14 As I have said, even though the Defence finds
15 itself in a very different situation, Defence counsel
16 are free to share a lot of information, and that, in a
17 way, creates a balance, an equality of arms between the
19 I think that whatever the situation,
20 transparency has to be the rule. But in order to
21 ensure transparency, you don't have to show everything
22 you have to show; you can have transparency up to a
23 certain degree. You can have transparency with a
24 number of safeguards. And the things that you do not
25 want to reveal, you will not reveal. This still allows
1 you to reveal a number of things and to be transparent
2 on a number of issues.
3 Instead of finding ourselves in the situation
4 where the Kordic Defence will talk to the Aleksovski
5 Defence or the Furundzija Defence or the Kupreskic
6 Defence counsel, instead of finding ourselves in this
7 situation and finding ourselves in a very risky
8 situation where orders, protective orders could be
9 violated, rather than finding ourselves in this
10 situation, I ask myself if it would not be preferable
11 to proceed differently and to proceed in a very clear
12 and transparent manner.
13 How can we maintain and keep the balance
14 between the parties? I think you have understood me,
15 Mr. Mikulicic. I think you have understood what I have
16 said about the Office of the Prosecutor and what I have
17 said about the Defence and about the capacity of each
18 party to share information. I am putting that same
19 question to you and I am putting forward a number of
20 arguments in order to see if that helps you respond to
21 that question.
22 The Office of the Prosecutor is an individual
23 entity, and within that individual entity, individuals
24 share information. That is not the case for the
25 Defence. But in spite of this situation, I think that
1 transparency should be our priority because this would
2 be enable us to avoid situations in which there is a
3 risk of orders and protective measures being violated.
4 These are the comments I wanted to make.
5 These are the questions that I am putting to you,
6 Mr. Mikulicic, and I would like to know what you think
7 about all this.
8 MR. MIKULICIC: Your Honours, I must say that
9 I am finding a great degree of professional pleasure in
10 taking part in this discussion because I believe that
11 this exchange of views on certain issues that are part
12 of our procedure can only contribute to the procedure
13 being improved. I believe that no one has any
14 illusions that it is a perfect one. In my personal
15 view, there is no such matter that cannot be improved
16 upon, so it is in this light that I view our discussion
17 today. Again, let me point out that I am very glad
18 that we are having this discussion prompted by the
19 motion on the part of the Kordic Defence.
20 Let me just make several comments based on
21 some observations I made while I listened to the
22 remarks by my learned colleague Mr. Niemann and Your
23 Honour's comments.
24 With respect to the Trial Chamber's authority
25 to discuss these issues, I think this authority is not
1 questionable; it is something that we need to address
2 every time such an issue arises. I think that we
3 cannot do it in a piecemeal manner. You control the
4 procedure. In that respect, you have the authority to
5 discuss any issue which arises, such as the one that
6 has arisen today.
7 Now, the access to the materials that Defence
8 is seeking, I would like to address that.
9 I think we need to be perfectly clear that
10 the Defence in the Kordic case is asking for access to
11 the materials which, in this matter and in other
12 matters - but we are just focusing on this one - to
13 those materials which have been entered into evidence,
14 not the evidence which is in the possession of the
15 Prosecution or the material that the Defence in the
16 Aleksovski may have in their possession and which has
17 not been entered into evidence. I think that this is a
18 fact that we have to bear in mind.
19 Further, Mr. President, you posed the
20 question, and I believe that this is the crux of the
21 matter, there is no doubt that in public sessions
22 anyone who is in the public gallery or who is following
23 the proceedings via the closed circuit television in
24 this building has an opportunity to see the witness and
25 certain documents. Now, that is the public character
1 of these proceedings, and we believe that there is no
2 reason not to use these materials in any other
3 proceedings should they be necessary.
4 What we are debating here is entering the
5 evidence from which protective measures have been
6 removed in another case, and I think this is the
7 crucial question. I think that as far as the interest
8 in finding the truth supersedes the interest in
9 protecting certain information, especially in a
10 situation when such protection could be stretched to
11 another case -- I think that that would be a different
12 matter. However, we believe that there is absolutely
13 no reason to bar access to confidential material to the
14 Kordic Defence, and I'm only talking about the
15 confidential material which has been entered into
16 evidence in the case, and again under the same
17 conditions, that is, that it not be divulged to a third
18 party. These are the conditions under which they were
19 originally entered in our matter.
20 Let me refer you to Rule 68 which obliges the
21 Prosecution to disclose the exculpatory evidence to the
22 Defence, and we come immediately to this question: Did
23 the Prosecution interpret the value of evidence in this
24 matter; that is, has this evidence been interpreted by
25 the Prosecution in the same way in which it was
1 interpreted by the Defence? And I submit that it
2 cannot always be the case.
3 A good case in point is the testimony of
4 Witness DA in this very matter, the Aleksovski matter,
5 and the Prosecutor just said, "We judge that
6 Witness DA's testimony cannot help Aleksovski's case,
7 which is why we did not disclose it to the Defence."
8 However, having talked to this witness later, the
9 Defence has come to the conclusion that it can help
10 their case. The Defence has its own strategy which may
11 not be known to the Prosecution, and so we cannot say
12 that the Prosecution is in a position to be the
13 ultimate judge of what is exculpatory material and what
14 is not. So the Defence should be given access to this
15 material and make its own judgment. I again repeat:
16 If it is confidential material, then it should not be
17 divulged to third parties; also, it should have access
18 to all the materials which are public.
19 Now, let me again point out that the
20 confidential materials can benefit the Prosecution as
21 much as the Defence, but if we say that the evidence
22 which is entered by the Defence and if another Defence
23 expresses a desire to see it, then we cannot say that
24 it is up to the Defence to allow another Defence team
25 again access to such evidence. Any materials that have
1 been entered into evidence as confidential, regardless
2 of whether they have been introduced by the Defence or
3 by the Prosecution, should be made available but in a
4 limited way.
5 Now, it is clear that the Prosecutor's Office
6 is a single body and they are in charge of issuing
7 indictments and their information has to be available
8 to everyone in the office. Once an indictment has been
9 issued, even after an indictment has been issued, the
10 information which was in support of this indictment is
11 still available to every person in that office. This
12 is one side of the coin.
13 The other side: The Defence has no access to
14 this flow of information and it cannot have such access
15 to it. I am not saying that there is no exchange of
16 information, flow of information between different
17 Defence teams, but I submit that it is nowhere close,
18 proportionately speaking, to the information exchanged
19 within the Prosecutor's Office; and when it comes to
20 confidential material, there is a significant
21 difference, because I am not in a position, I do not
22 have authority to divulge any information to another
23 Defence team. I could be sanctioned if I did so.
24 However, there is no such prohibition within the
25 Prosecutor's Office, and the Prosecutor's request to
1 include some confidential information in our case is
2 witness to that. So I must not know certain
3 information that is confidential in another matter, and
4 this tells you something about the equilibrium.
5 Let me again repeat that I believe that the
6 request by the Kordic Defence team is legitimate and it
7 should be supported with the reservation that it cannot
8 be divulged in terms of its confidentiality, and if I
9 may assist you in any other matter, please let me know.
10 JUDGE RODRIGUES: Thank you, Mr. Mikulicic.
11 You have answered our questions.
12 Mr. Niemann, do you have anything to add as
13 more or less a closing comment because, after all, we
14 must end this debate. We would always have more to
15 say, but we must limit it, I think, though I think it
16 was very interesting and it can be helpful for all of
17 us who have to deal with this question and rule on it.
18 In any event, for a more or less final word,
19 would you have anything to say?
20 MR. NIEMANN: Perhaps one very short final
22 The Office of the Prosecutor cannot be
23 equated directly to a community of Defence counsel
24 dealing with different accused persons. The Office of
25 the Prosecutor does have a single function and
1 individual Defence counsel have individual functions
2 relevant to their own cases, so it's not quite a true
3 analogy to simply say, "Well, the Office of the
4 Prosecutor can do this but various Defence counsel do
6 That's the only issue that I wish to raise,
7 Your Honour.
8 JUDGE RODRIGUES: Mr. Mikulicic, have you
9 completed your remarks, or do you have anything else to
11 MR. MIKULICIC: Thank you, Your Honours. The
12 Defence has nothing further to say or to give any
13 additional explanations except to say that we fully
14 agree with the position of the Prosecution that therein
15 lies the core of the matter.
16 JUDGE RODRIGUES: Well, we are going to
17 adjourn with a certain feeling of satisfaction because
18 I think the discussion was a very serious one. I think
19 that we really did have an opportunity to discuss in
20 depth this issue. I thank you very much for your
21 participation, and we are going to meet again to deal
22 with another issue on Friday at 2.30, I think.
23 Mr. Mikulicic, you seem to be giving me a
24 sign as if you wanted to add something.
25 MR. MIKULICIC: Thank you, Your Honours.
1 Since you mentioned that we would be meeting again on
2 Friday, I have just one question to ask. We are aware
3 of the reason for the Status Conference on Friday, so
4 my question is: Do you consider it necessary for the
5 accused, Mr. Aleksovski, to be present at the Status
6 Conference or is it your opinion that his presence is
7 not absolutely necessary?
8 JUDGE RODRIGUES: Excuse me, but perhaps it
9 will be better for me to consult with my colleagues
10 because we work as a team. I have my personal opinion,
11 but I wish to consult them.
12 We have already agreed on this matter, but we
13 haven't heard the Prosecution. Perhaps we should
14 first, after all, give Mr. Niemann a chance to express
15 his views regarding this question. We were about to
16 decide, I apologise, but I haven't disclosed the
17 decision, so you are absolutely free to say what you
18 think about it.
19 MR. NIEMANN: Your Honours, our position on
20 the matter is it is a matter for the Defence, but this
21 is a collateral issue to the trial. So long as
22 Mr. Aleksovski waives his right to be present at a
23 collateral matter, we, the Prosecution, certainly have
24 no objection at all to his absence.
25 JUDGE RODRIGUES: The Trial Chamber is of the
1 opinion that the question that we are going to discuss
2 on Friday at 2.00 p.m. -- I have just been informed it
3 is 2.00 and not 2.30 -- has something to do with
4 Mr. Aleksovski, and, therefore, I think that
5 Mr. Aleksovski should be present. Why? Because he has
6 an interest in the matter. It has to do with
7 protection measures for witnesses, and there are
8 protected witnesses who are his personal friends.
9 Therefore, there are a number of questions that
10 directly affect Mr. Aleksovski. And, after all, he was
11 present at all the hearings when protective orders were
13 Mr. Aleksovski might even be accused of not
14 respecting an order of the Trial Chamber. He knows.
15 He was present. And, I think, Mr. Aleksovski, I quite
16 understand your reasons for not wishing to be here, but
17 on the other hand, we would like to see you here. We
18 would like you to be present.
19 Therefore, Mr. Aleksovski is going to be
20 present on Friday at 2.00 p.m. for the reasons that we
21 have mentioned. I think it is quite reasonable for the
22 Trial Chamber to order the presence of Mr. Aleksovski.
23 That is our decision.
24 We can adjourn for today. Thank you once
25 again to the parties for their contribution to this
1 debate. Thank you to the interpreters who worked hard,
2 the Court reporters and the technical booth, and of
3 course, my legal assistants and my colleagues. That
4 will be all for today, until Friday at 2.00 p.m.
5 --- Whereupon the hearing adjourned at
6 5.12 p.m., to be reconvened on Friday,
7 the 20th day of November, 1998,
8 at 2.00 p.m.