1. 1 Wednesday, 3rd February, 1999

    2 (Open session)

    3 (The accused entered court)

    4 --- Upon commencing at 10.03 a.m.

    5 THE REGISTRAR: Good morning, Your Honours.

    6 Case number IT-95-14/1-AR73, the Prosecutor versus

    7 Zlatko Aleksovski.

    8 JUDGE MAY: Yes. We will have the

    9 appearances, please?

    10 MR. NIEMANN: If Your Honours please, my name

    11 is Niemann, and I appear with my colleague,

    12 Mr. Meddegoda, and the case manager for the Prosecution

    13 is Ms. Erasmus.

    14 MR. MIKULICIC: Good morning, Your Honours.

    15 My name is Goran Mikulicic, and I am representing the

    16 Defence in this case.

    17 JUDGE MAY: Can the accused hear the

    18 proceedings in a language which he understands?

    19 THE ACCUSED: Good morning, Your Honours. I

    20 can hear you. Thank you.

    21 JUDGE MAY: Thank you. Mr. Niemann, these

    22 are your appeals.

    23 MR. NIEMANN: If Your Honours please.

    24 JUDGE MAY: We are getting some

    25 interference. I wonder if that could be checked?

  2. 1 There are two appeals. We have had a chance

    2 of reading the (interference) --

    3 (Discussion off the record)

    4 JUDGE MAY: Mr. Niemann, apparently there is

    5 something wrong with the computer and it will require

    6 ten minutes to repair, so we will rise while that is

    7 done.

    8 --- Recess taken at 10.08 a.m.

    9 --- On resuming at 11.19 a.m.

    10 THE REGISTRAR: Good morning, Your Honours.

    11 Case number IT-95-14/1-AR73, the Prosecutor versus

    12 Zlatko Aleksovski.

    13 JUDGE MAY: Before we have the appearances, I

    14 would like, on behalf of the Chamber, to thank the

    15 staff who have made this move possible. We started an

    16 hour ago unsuccessfully in courtroom 1. They had to

    17 work very hard to get this court ready and to have done

    18 so within the time, so we are grateful for that.

    19 Appearances, please.

    20 MR. NIEMANN: If Your Honours please, my name

    21 is Niemann, and I appear with my colleague,

    22 Mr. Meddegoda, and Ms. Erasmus is the case manager for

    23 the case.

    24 MR. MIKULICIC: If Your Honours please, my

    25 name is Goran Mikulicic, and in this case, I represent

  3. 1 the Defence. Thank you.

    2 JUDGE MAY: I will ask the accused

    3 Mr. Aleksovski if he can hear again in a language which

    4 he understands.

    5 THE ACCUSED: Your Honours, Mr. President,

    6 yes, I can hear you very well, and last time I forgot

    7 to tell you that I can also understand you. Thank you.

    8 JUDGE MAY: Mr. Niemann, this is your

    9 appeal. It consists of two matters. Both seem to be

    10 closely interrelated, and although it is a matter for

    11 you how you set about addressing us, it would seem

    12 sensible to deal with both matters together.

    13 We have read the papers; therefore, I think

    14 you could take it that we have the background, and we

    15 would be grateful for your main submissions.

    16 MR. NIEMANN: If Your Honours please. Your

    17 Honour, I indeed will not traverse our written

    18 submissions, but by doing that, I don't want to

    19 de-emphasise the importance that we place upon those

    20 submissions. Indeed, much of what I will say today

    21 will deal primarily with the appeal in relation to the

    22 first decision of their Honours of the 22nd of October,

    23 1998 -- it will deal primarily with that -- and to a

    24 large extent, I will rely on our submissions in written

    25 form in relation to the second matter, the second

  4. 1 appeal, if Your Honours please, although, of course, I

    2 am available at any stage to assist Your Honours with

    3 any matters that Your Honours may wish to cover.

    4 Your Honours, we say this is an important

    5 appeal because it touches upon issues which, in

    6 national jurisdictions, we take for granted and are

    7 well understood. But in my submission, it may not be

    8 so that it is so well understood in this jurisdiction.

    9 The two matters that I wish to take Your

    10 Honours to today and to dwell upon, if I might, are,

    11 firstly: What is the object and purpose of the

    12 criminal trial as we understand it in this

    13 jurisdiction? The second issue is: Does the fair

    14 trial, as is required by the Rules and the Statute,

    15 mean a fair trial for the International Community as

    16 represented by the Prosecutor as well as for the

    17 accused?

    18 Your Honours, if I was to suggest that a

    19 criminal trial is a search for the truth, you would

    20 probably not disagree with that at all. You would

    21 accept that. But if I were to say to you that the

    22 search for the truth supersedes all other aspects of

    23 the trial such as that it could be reduced to a

    24 shapeless and formless event with no specified or

    25 particular beginning or end, I suspect Your Honours

  5. 1 would say that is not a criminal trial.

    2 If Your Honours please, Article 21, paragraph

    3 3 of the Statute of the Tribunal advises us to ensure

    4 that the accused shall be presumed innocent until

    5 proven guilty according to the provisions of the

    6 Statute. That, Your Honours, is the beginning of an

    7 indication of the fact that a trial before this

    8 Tribunal is something in pursuit of the guilt or

    9 innocence of the accused.

    10 When it comes to the pursuit of the truth,

    11 there are other inquiries that we may all be familiar

    12 with. For example, you may have an inquest into the

    13 cause of death of an individual or into the causes of a

    14 fire. Now, that may be the pursuit of the truth of

    15 those issues, but the determination of that issue and

    16 the standard of evidence relied upon, the standard of

    17 truth, if I may call it, of that, may not and probably

    18 would not satisfy a criminal tribunal that the evidence

    19 proves the issue beyond a reasonable doubt in terms of

    20 who perpetrated the killing or who started the fire.

    21 By saying all this, Your Honours, I am not

    22 trying to imply for one moment that a conviction or an

    23 acquittal of an accused person should be based on

    24 anything other than the truth. Clearly, witnesses are

    25 admonished to tell the truth, the whole truth, and

  6. 1 nothing but the truth. So, obviously, the trial

    2 process is dependent upon the truth. However, the

    3 truth is a concept quite distinct, in my submission,

    4 from the notion of proof beyond reasonable doubt. The

    5 truth of a matter may be readily ascertained by

    6 reference to a number of sources, but none of these

    7 sources may either individually or collectively

    8 constitute proof beyond a reasonable doubt.

    9 In my submission, Your Honours, it is well

    10 accepted that the liberty of an individual is

    11 considered far too precious to be dependent upon what,

    12 in some circumstances, may be accepted as the truth.

    13 Conversely, absolute truth may be something which is

    14 beyond proof beyond a reasonable doubt and it may be

    15 beyond it because it is simply not humanly possible to

    16 acquire it.

    17 So, Your Honours, you may have a situation

    18 where you accept the truth of an assertion, let's say,

    19 for example, the temperature yesterday was 10 degrees.

    20 You don't need to inquire into it; you accept the truth

    21 of that. But if that assertion is the basis upon which

    22 somebody is to be found guilty and incarcerated, you

    23 may say that is not sufficient proof.

    24 Conversely, you may have a case where a crime

    25 is committed at a particular scene. There are no

  7. 1 eyewitnesses to the event, and so all that you have to

    2 determine the issue is circumstantial evidence, such as

    3 that there is a bus ticket where the individual went to

    4 that place or that there is forensic evidence of cloth

    5 fibres or whatever. That may not be the absolute truth

    6 of the matter, but it may be a matter upon which you

    7 have to alternately rely and conclude that the issue is

    8 proved beyond reasonable doubt.

    9 Further, when we say we look at the pursuit

    10 of the truth as such, it means different things in

    11 different forums. Commissions of inquiry, for example,

    12 are often free to roam from one particular issue to

    13 another in order to come up with a conclusion and a

    14 determination of what they say is the truth of

    15 something that happened. That, Your Honours, is not

    16 something that we say is the sole basis of a criminal

    17 trial.

    18 Your Honours, if I may, I would like to take

    19 the Appeals Chamber to the first motion that was filed

    20 by the Defence when they sought to have the evidence of

    21 Admiral Domazet admitted. I have numbered a copy of

    22 this motion for easy reference. I don't know whether

    23 Your Honours have that, and I don't know whether the

    24 numbered copy has been given to my learned colleague.

    25 JUDGE MAY: We have it.

  8. 1 MR. NIEMANN: May I take Your Honours firstly

    2 to the paragraph that I have numbered paragraph 11? It

    3 appears on the second page of the motion under the

    4 heading of "Discussion," if Your Honours please. There

    5 is a numbered paragraph there in the original text

    6 which is 3, but it is, in fact, my number 11.

    7 The assertion by the Defence there is: "The

    8 Defence considers the basic duty of the Trial Chamber

    9 is to establish the truth; therefore, there can be no

    10 restrictions of a formal nature with respect to the

    11 presentation and admittance of evidence."

    12 Your Honours, what are these restrictions of

    13 a formal nature that are being referred to? Well, we

    14 are not told by the Defence in their motion, but I

    15 think it is clearly obvious that it includes Rules such

    16 as Rule 85(A), Rule 85, paragraph (A). If Your Honours

    17 please, Rule 85(A), provides, among other things, that

    18 "evidence at the trial shall be presented in the

    19 following sequence," a not unremarkable provision, and

    20 then it sets out the various orders that follow from

    21 there.

    22 But this, Your Honours, could be seen as a

    23 restriction, particularly if you have closed your case

    24 and you want to put further evidence in, because Rule

    25 85 instructs us that this order is the order that is to

  9. 1 be followed unless, of course, it is in the interests

    2 of justice to do otherwise.

    3 Going back, if I may, Your Honours, to again

    4 the motion of the Defence filed on the 29th of

    5 September, 1998, and if I may refer Your Honours to the

    6 paragraph that I have numbered 12? Your Honours see

    7 there a reference to Rule 89 of the Rules of Procedure

    8 and Evidence, and then going over the page to Rule 17,

    9 immediately above -- I'm sorry, I apologise. Paragraph

    10 17, immediately above the heading "Conclusion," we see

    11 there the Defence submission:

    12 "Therefore, the Defence has the opinion,

    13 regardless of the completed procedure of presentation

    14 of evidence, that there are no formal or legal

    15 obstacles for the presentation of the expert

    16 testimony ..."

    17 Again, a reference to these formal or legal

    18 obstacles.

    19 Your Honours, we wouldn't call them "formal

    20 or legal obstacles" as such. I think we would prefer a

    21 more neutral term, such as "the rules that govern or

    22 determine the procedure of the trial."

    23 Your Honours, Article 20, paragraph 1 of the

    24 Statute of the Tribunal mandates that proceedings are

    25 to be conducted in accordance with the Rules. At a

  10. 1 minimum, Your Honours, Rule 85, that I had taken you to

    2 a moment ago, the Rule that deals with the order of the

    3 proceedings, which applies unless it is in the

    4 interests of justice of the Trial Chamber to direct

    5 otherwise, is one such Rule.

    6 The evidence that was sought to be introduced

    7 here, the evidence that was introduced here of Admiral

    8 Domazet, is directed to determining whether or not, in

    9 1993, in Central Bosnia, there existed a state of

    10 international armed conflict. The import of what the

    11 Defence is saying by these rather broad and sweeping

    12 submissions is that the pursuit of the truth of a

    13 matter transcends all other constraints or limitations

    14 that may be imposed by the Articles and Rules which

    15 would seek to govern the admissibility of the

    16 evidence.

    17 Your Honours may feel that it is perhaps

    18 somewhat against interest for the Prosecution to be

    19 making submissions of this sort because often the shoe

    20 is on the other foot: The Prosecution is trying to

    21 achieve the admission of evidence against objections by

    22 the Defence, that the admissibility offends some

    23 Article or Rule under the Statute or the Rules of

    24 Evidence and Procedure, but Your Honours I think will

    25 agree with me that the Prosecution has a greater

  11. 1 interest in preserving the integrity of the proceedings

    2 and in ensuring that the Rules are followed.

    3 What the Defence, in our submission, doesn't

    4 see by their broad and sweeping assertions in this

    5 motion is that such a principle of an all-encompassing

    6 pursuit of the truth may impact upon the right of a

    7 fair trial. In other words, such a wide-ranging

    8 assertion may trump all of the fair trial guarantees

    9 that lie at the heart of the proceedings before this

    10 Tribunal.

    11 Your Honours, the learned authors of the text

    12 "Criminal Procedure," second edition, 1992, page 34,

    13 and I have copies of this which I could hand to Your

    14 Honours if it would be of assistance to you and to my

    15 colleague, Mr. Mikulicic --

    16 JUDGE MAY: Mr. Niemann, which text is this?

    17 MR. NIEMANN: It is a text "Criminal

    18 Procedure," Your Honours, second edition, by LaFave and

    19 Israel, Your Honour.

    20 JUDGE MAY: Which jurisdiction does it refer

    21 to?

    22 MR. NIEMANN: It is from the United States,

    23 Your Honour. I only really wish to go to a very small

    24 part of it to pick up a point that I wish to make on

    25 this, Your Honour.

  12. 1 They say on page 34, the top of the second

    2 column, Your Honours, under Chapter 1, "An Overview":

    3 "While the discovery of the truth is a major

    4 goal of the criminal justice process, there exists

    5 other goals that clearly are truth-deflecting. Here we

    6 have such goals as respecting the value of human

    7 dignity."

    8 Your Honours, please, we find similar such

    9 rules in our Rules of Evidence and Procedure.

    10 JUDGE HUNT: May I ask you this question:

    11 What do you get out of that quotation that is relevant

    12 to this case?

    13 MR. NIEMANN: What I get out of it is this,

    14 Your Honours, that the Trial Chamber, when reaching its

    15 decision were, as we say it does, to accept the

    16 proposition put that the pursuit is an all encompassing

    17 principle that permits the abandonment, if I can call

    18 it that, of the order of the trial, and because it is

    19 the pursuit of the truth that, therefore, it should be

    20 admitted at any stage of the proceedings, then I'm

    21 saying that's not what the Rules of Evidence and

    22 Procedure of the Tribunal are about. And indeed, there

    23 are examples of Rules which specifically are directed,

    24 in my submission, against, perhaps, the pursuit of the

    25 truth. They put brakes on the pursuit of the truth.

  13. 1 JUDGE HUNT: But, Mr. Niemann, the order in

    2 which evidence is to be presented is expressly stated

    3 to be subject to the interests of justice, and you

    4 can't elevate a Rule relating to the order in which

    5 evidence is to be given to some master which controls

    6 the whole proceedings. What you have to look at in

    7 every case is it in the interests of justice to vary

    8 that order?

    9 Would it not be quicker if we went to the

    10 first proposition that if the evidence was going to be

    11 given orally by the admiral, could you really have

    12 objected to it being led out of order if there was no

    13 issue taken at the trial that this was the first time

    14 that they had heard of it?

    15 MR. NIEMANN: No.

    16 JUDGE HUNT: Well, where do we go to after

    17 that?

    18 MR. NIEMANN: Well, perhaps I should explain

    19 what I'm endeavouring to do here. I'm trying to point

    20 to one instance of where I say the Trial Chamber has

    21 erred, and I think it's important to demonstrate where

    22 we say there has been an error.

    23 JUDGE MAY: Well, suppose for a moment,

    24 taking up that point, we accept that there is a purpose

    25 in the criminal process, for instance, the purpose is

  14. 1 to ascertain whether the Prosecution has to proved that

    2 the accused has committed the offence beyond reasonable

    3 doubt, and that is sometimes described as a central

    4 purpose of the process.

    5 We also accept, of course that, we are

    6 governed by the Article to which you referred, that the

    7 proceedings are conducted in accordance with the

    8 Rules.

    9 Supposing for the moment that we accept all

    10 that, is your case this: That the Trial Chamber were

    11 wrong in admitting this evidence, first of all, because

    12 it was not admissible as evidence? I don't think

    13 you're submitting that, but I would like to hear your

    14 submissions on it.

    15 Secondly, are you submitting that it was out

    16 of order, and again, I don't think you're submitting

    17 that, in light of your previous answers, or are you

    18 submitting, essentially, that it was unfair to admit it

    19 at that stage, and in particular, it was unfair to

    20 admit it if you had no chance to rebut it?

    21 Now, I know I'm trying to put words into your

    22 mouth. It's not always easy to do it, but perhaps we

    23 could have your submission on those points. It might

    24 be helpful.

    25 I should have added, and I don't want to, of

  15. 1 course, hurry you, but if possible, we wish to deal

    2 with this matter this morning. I know we've had an

    3 hour taken out by matters out of your control, but if

    4 possible, we would like to deal with it this morning.

    5 MR. NIEMANN: Your Honours, I would well

    6 expect to conclude in ample time for my colleague to

    7 address Your Honours and the matter be concluded this

    8 morning.

    9 JUDGE MAY: Yes.

    10 MR. NIEMANN: I'm not -- I will not be going

    11 into it in great detail any further at this point, but

    12 Your Honour has addressed to me some questions, and I

    13 don't know whether -- I will, perhaps, proceed to

    14 answer them in the course of my submissions, but I can

    15 give you short answers to them.

    16 JUDGE MAY: Yes, if you would.

    17 MR. NIEMANN: The mischief we see by

    18 permitting this evidence to be admitted in the way that

    19 it was -- firstly, I should withdraw that.

    20 We would argue that the transcript of the

    21 evidence of Admiral Domazet is not admissible under the

    22 Rules. That would be our first proposition.

    23 If we are wrong in that, then we would say

    24 that the Rules prescribed that we, the Prosecution, who

    25 represent the International Community, have rights, as

  16. 1 does the Defence, and they are as prescribed under Rule

    2 85. And we say that by changing the order of

    3 admission, on the assumption that we are wrong and that

    4 it is, in fact, evidence, that we have been deprived of

    5 what we say the Rules entitle us to, namely to

    6 cross-examine or to rebut.

    7 JUDGE HUNT: Could I just clear one matter

    8 up? At the time this was argued in the trial court,

    9 had the admiral been cross-examined in the other

    10 trial?

    11 MR. NIEMANN: I believe so, yes, Your

    12 Honour.

    13 JUDGE HUNT: It isn't very clear from the

    14 transcript. So the tender was of his evidence and his

    15 cross-examination; is that right?

    16 MR. NIEMANN: It was, indeed.

    17 JUDGE MAY: Yes, I recollect that he had been

    18 cross-examined. It was one of the points.

    19 While we're on that topic, in the case of the

    20 confidential witness whose evidence you were seeking to

    21 tender, he had been cross-examined extensively.

    22 MR. NIEMANN: Indeed. Yes, Your Honour.

    23 Your Honours, just to conclude, if I may, on

    24 the point that I was making, and I am indeed conscious

    25 of the fact that Your Honours have requested me to move

  17. 1 directly to those issues that we have discussed, but I

    2 would, if I may, simply like to draw Your Honours'

    3 attention to the decision of the Trial Chamber of the

    4 22nd of October, 1998, particularly where Their Honours

    5 give reasons for their decision and they entitle it

    6 "Evaluation", and again I have numbered certain copies

    7 which perhaps may be handed to Your Honours for easy

    8 reference, because if I refer to the paragraph numbers

    9 it's perhaps easier.

    10 Very quickly, Your Honours, I just wanted to

    11 pick up that thing that I was making. Clearly, the

    12 Defence are entitled, within reason, to make whatever

    13 submissions they like, and that we wouldn't be here if

    14 they had done that and that was the end of the matter.

    15 The point we make is that we submit that a

    16 reading of the decision suggests that they actually

    17 picked up what the Defence were submitting in their

    18 motion, and I quickly draw Your Honours' attention to

    19 these matters.

    20 The paragraph that I've numbered paragraph 9

    21 picks up paragraph 89, which was the paragraph referred

    22 to by the Defence and described by the Defence, if I

    23 may, as the enabling provision to allow this evidence

    24 to be admitted.

    25 In paragraph 11, they again pick up this

  18. 1 theme that the ascertainment of the truth is an

    2 essential principle. I'm saying we're not quarrelling

    3 with that at all, but if it's an essential principle

    4 which overrides everything else and you that ahead of

    5 anything else in the Rules, yes, we do quarrel with

    6 it. We say that's wrong and they erred there, they

    7 shouldn't have done that.

    8 So we submit that having regard to these and

    9 other provisions in their decision, very quickly,

    10 that's what they -- we submit they have done, and in so

    11 doing they have erred.

    12 Your Honours, the Statute of the Tribunal,

    13 Article 15, gives to Your Honours the authority to

    14 draft the Rules of Procedure and Evidence, and as we've

    15 mentioned earlier, Article 21 prescribes that the trial

    16 shall be conducted in accordance with those Rules.

    17 It's our submission, Your Honours, that if

    18 the Trial Chamber seeks to change the order of

    19 presentation of the evidence and thereby -- and seeks

    20 to change the order of presentation of the evidence,

    21 they must have regard, in our submission, to the

    22 interests of justice, the Rule requires that, but what

    23 interests of justice do they need to have regard to?

    24 Simply, the answer to that is: How does it affect the

    25 other side? Does it preclude the other side from

  19. 1 aspects of the procedure which may be available to them

    2 which are deprived by that course?

    3 I wish to move on, if I may, to the second

    4 issue, and that is that the question of affording

    5 rights to one party or the other. It's probably --

    6 JUDGE MAY: Judge Robinson has a point.

    7 JUDGE ROBINSON: Sorry, I had wanted to have

    8 this clarification earlier. The evidence of the

    9 confidential witness that you are seeking to tender in

    10 rebuttal, was that by way of a transcript as well?

    11 MR. NIEMANN: Yes, Your Honour.

    12 JUDGE HUNT: And a video.

    13 MR. NIEMANN: And a video, yes.

    14 JUDGE MAY: While we're dealing with this, I

    15 don't want to lose sight of your submissions as to why

    16 you say the admiral's evidence in the form of a

    17 transcript and the video were not admissible, and one

    18 matter you can assist us with is this: When you say

    19 they're not admissible, is it because of the

    20 circumstances in which they were admitted, that is,

    21 late in the day and without your being able to

    22 cross-examine? Is that the point, as I understand it,

    23 from the grounds of appeal, or do you say that it

    24 wasn't admissible in the form in which it was admitted

    25 because the transcript are ordered to be admitted?

  20. 1 The transcript and the video are surely

    2 hearsay evidence in this trial. They come in the form

    3 of a document of a witness who has not given evidence

    4 from the witness box or the witness stand, and,

    5 therefore, it must be hearsay evidence. And hearsay

    6 evidence has been said, in this Tribunal, on more than

    7 one occasion, to be admissible, and has not been the

    8 subject of appeal.

    9 MR. NIEMANN: Your Honours, we don't say that

    10 hearsay evidence is inadmissible, and that's not our

    11 position.

    12 We say that the basis of why this evidence of

    13 the transcript of the proceedings is inadmissible is

    14 because of the operation of, in particular, Rule 90.

    15 JUDGE HUNT: But that's the very point that

    16 Judge May raises with you. This is not a witness -- it

    17 is not the testimony of a witness, it is a statement

    18 made by a person who is not a witness in these

    19 proceedings, made outside the Tribunal. It happens to

    20 have been made as a witness in another trial, and it

    21 happens to be under some form of oath and subject to

    22 some form of cross-examination, but it is not being

    23 admitted as the testimony of a witness, it is being

    24 admitted solely as a hearsay statement made by that

    25 witness.

  21. 1 MR. NIEMANN: Well, with respect, Your

    2 Honours, I don't believe that's the interpretation

    3 that's appropriate to put on it, having regard to Rule

    4 90.

    5 It's easy to say, "Oh, well, what we'll do

    6 here is we'll ignore Rule 90 and we'll deal with these

    7 cases, documentary cases." We're not offending Rule 90

    8 because it's something other than testimony. That is

    9 not correct, You Honour. It is testimony, and that's

    10 what is sought to be put before the Chamber,

    11 testimony.

    12 Now, it's testimony in a written form,

    13 perhaps, but that is the very issue to which the Rule

    14 90 is directed to. It's saying, if you want to put

    15 evidence of testimony of a witness before the Tribunal,

    16 do it orally.

    17 JUDGE MAY: I'm sorry. That is so. That is

    18 what Rule 90 says, and surely the issue which you are

    19 raising is that Rule 90 should prevail, and that if you

    20 want to get this evidence in, then you have to apply

    21 Rule 90.

    22 What is being said is this: That what, in

    23 fact, happened was Rule 90 was not applied, that the

    24 Rule which allows relevant and probative evidence to be

    25 admitted was applied. Accordingly, this evidence was

  22. 1 admitted by way of hearsay evidence in the form of a

    2 document, and indeed, if you look at the order which

    3 the Trial Chamber made, that, I suggest, is what they

    4 meant. They said the Trial Chamber admitted his

    5 testimony, was the word they used, but in fact, it was

    6 the transcript, including the video recording and

    7 exhibits, they said, as documentary evidence.

    8 I also have a note that you yourself when

    9 presented with the ruling orally, said that your

    10 understanding was that this was being admitted as an

    11 exhibit. In a sense, I think you were right.

    12 MR. NIEMANN: I think that's correct.

    13 JUDGE MAY: I think you were right. But the

    14 point is this: Whether it was right to admit the

    15 testimony in the form which they did, there was a power

    16 to do so. The evidence was admissible in this form.

    17 Whether it was right to admit it in the face of Rule

    18 90(A), which provides for oral testimony, is surely a

    19 discretion for the Trial Chamber. No doubt it is a

    20 matter which we are going to have to decide on this

    21 appeal, whether Rule 90(A) should be applied, or

    22 whether the Trial Chamber had the power and exercised

    23 their discretion rightly in admitting the testimony in

    24 this form.

    25 Going on, if I may, just for one moment,

  23. 1 because it applies to your appeal, the second part of

    2 your appeal, rather, because you made precisely the

    3 same application in relation to your confidential

    4 witness to have his transcript admitted, have the

    5 transcript of his evidence admitted once the other

    6 evidence had been admitted, and that, presumably, was a

    7 tit for tat, and no doubt you had it in mind that the

    8 transcript would be admitted as documentary evidence,

    9 as hearsay evidence. And just for one moment, just

    10 extending it beyond that, you have great experience,

    11 Mr. Niemann, in these trials. Have you come across a

    12 transcript being admitted into evidence?

    13 MR. NIEMANN: No, Your Honour. I haven't

    14 come across it in any other -- firstly, I haven't seen

    15 it at all, but secondly, the only area where we get

    16 close to it is under Rule 94, paragraph (B), where the

    17 evidence of a proceeding which has, I would submit,

    18 concluded, where the facts have been adjudicated, can

    19 come before -- you may apply to put before the Trial

    20 Chamber.

    21 In those circumstances you achieve an

    22 objective similar to this, but what we say is the

    23 danger of all this is, and why we say Rule 90 does

    24 prevail, and why we would say, in relation to the first

    25 appeal, that there was no power to admit it is because

  24. 1 of two issues.

    2 One, once it's adjudicated and may be

    3 admitted under Rule 94, it achieves that ease and

    4 convenience of trial which may otherwise be sought but

    5 it is a question which has been adjudicated and decided

    6 upon, and there is a great deal of certainty, much more

    7 certainty than a transcript of a witness in another

    8 case which is not concluded.

    9 Now, in their decision Their Honours said

    10 words to the effect that the evidence of Admiral

    11 Domazet was of indisputable value. I don't wish to

    12 misquote Your Honours, but --

    13 JUDGE HUNT: Have you checked the original

    14 French for that? I wondered whether they were merely

    15 saying anything more than indisputable relevance,

    16 because anything that has probative value or is capable

    17 of establishing a fact must be relevant.

    18 MR. NIEMANN: Well, I --

    19 JUDGE HUNT: It was an unfortunate expression

    20 at best, I agree, but do you think they were saying

    21 anything more than it was indisputably relevant because

    22 they went on to say the weight of the evidence is

    23 something we'll have to consider later.

    24 MR. NIEMANN: I must admit, Your Honours,

    25 I've addressed my mind only to what they have said in

  25. 1 the English version of it, which I know was checked by

    2 the English Judge, and I assumed that as a consequence

    3 of that it correctly reflected what Their Honours had

    4 intended.

    5 JUDGE HUNT: But the wording follows, the

    6 weight of this is something we have to determine later,

    7 tends to suggest they were not saying it is of

    8 indisputable probative value. They are really saying

    9 it was of indisputable relevance, which clearly it

    10 was.

    11 MR. NIEMANN: Well, Your Honours, I can't say

    12 one way or the other because I'm only left with the

    13 text of the decision, but it seems to me, Your Honours,

    14 that the danger of this evidence being admitted in the

    15 way that it was, at this particular stage in the

    16 proceedings, and having regard to the witness

    17 himself -- which I'll come back to in a moment -- is

    18 that it's entirely possible for the other Trial Chamber

    19 to reach a conclusion that this evidence is not

    20 reliable and cannot be relied upon and come to a

    21 completely different determination on it. And from my

    22 reading of the English version, which may be different

    23 from the French, and I can't assist Your Honours with

    24 that, but it seems to me that Their Honours have put

    25 great store in it and presumably would have put

  26. 1 reliance upon it if they were to conclude that its

    2 value was indisputable.

    3 So, Your Honours, I would say that -- that

    4 Rule 90 directs itself to the question of ensuring

    5 reliability of evidence which the safest way to achieve

    6 that is by way of oral testimony where the witness is

    7 cross-examined, and within the text of the provision

    8 itself it provides for exceptions. There are other

    9 exceptions, but it provides for exceptions, and that is

    10 depositions or video-conference link, and uses terms

    11 such as exceptional circumstances. It goes beyond just

    12 interests of justice, it goes on to exceptional

    13 circumstances.

    14 Now, my submission, Your Honours, if this is

    15 thought to be a somewhat rigid construction of the

    16 Rules, then in my submission, in what way is it rigid?

    17 What it does is not preclude, for example, the dying

    18 declaration of a person, because that clearly could be

    19 admitted under Rule 89. Rule 90 addresses itself to

    20 living witnesses, people who can appear and testify.

    21 JUDGE MAY: The difficulty here is sometimes

    22 getting the witnesses here, having them available.

    23 This is not a national jurisdiction, and the danger of

    24 your position is this, that it is unduly rigid and

    25 doesn't allow the Trial Chambers the flexibility which

  27. 1 perhaps they should have as benches of Judges in

    2 determining what evidence they should have before

    3 them.

    4 MR. NIEMANN: When Their Honours drafted the

    5 Rules, presumably that was a matter that crossed their

    6 minds, if my construction of Rule 90, paragraph 1 is

    7 right, because that is precisely why they made a

    8 provision for depositions to be taken, which could be

    9 taken in the field in front of a presiding officer,

    10 that is precisely why we have video conference link.

    11 In our submission, Your Honours, one of the

    12 great merits of the adversarial trial is that reaching

    13 the conclusion of whether or not the witness is telling

    14 the truth or not is the process of cross-examination,

    15 the process of perhaps being able to present evidence

    16 which would rebut what that witness has to say.

    17 These issues may or may not -- certainly

    18 cross-examination would not be permissible if we

    19 proceeded by way of a documentary trial.

    20 Your Honours, the point that I --

    21 JUDGE MAY: Judge Robinson.

    22 JUDGE ROBINSON: I just wanted to say that to

    23 the list that you mentioned of exceptions, a deposition

    24 and a video conference link, there is also affidavit

    25 evidence which was recently added.

  28. 1 Are you making the point that the Rules are

    2 exhaustive as to those exceptional situations?

    3 MR. NIEMANN: Yes, yes. That is my point,

    4 Your Honours. Indeed, perhaps -- I am grateful to Your

    5 Honour for drawing my attention to Rule 94 because 94

    6 bis was in operation at the time that Their Honours

    7 made their decision. I understand 94 bis has been part

    8 of the Rules since at least July last year, and it sets

    9 out and prescribes a way in which this matter could

    10 have been resolved. Now, Their Honours didn't turn to

    11 that at all, they didn't mention that at all, 94 bis,

    12 and in my submission, that would have been a way of

    13 directly dealing with it.

    14 Admittedly, Their Honours weren't confronted

    15 with precisely the same situation as is envisaged by

    16 Rule 94 bis because it wasn't a statement, I would

    17 submit it wasn't a statement, and so I think what 94

    18 bis is talking about is an expert's statement which

    19 comes before the Chamber in this form and creates an

    20 opportunity to permit the Court and the parties to rely

    21 upon it in the absence of cross-examination or of

    22 calling a witness, and it specifically deals with it,

    23 and I submit that that is what should have happened.

    24 If the Defence wanted to get this before the Chamber,

    25 this is the course they should have taken.

  29. 1 Now, obviously, we would have said, "Now we

    2 want to cross-examine," and I would have thought at

    3 that moment, having regard particularly to this

    4 witness, that the Trial Chamber would have permitted

    5 that or should have permitted it. It should have

    6 permitted it in the interests of justice at least. But

    7 that procedure wasn't followed.

    8 Your Honours, we say that the reason why

    9 Article 90(A) says what it says and why it provides

    10 only for the receipt of the evidence of a witness by

    11 way of oral testimony unless there are exceptional

    12 circumstances, and then, if there are exceptional

    13 circumstances, they are prescribed, we say that that is

    14 well-illustrated by this particular case why that is

    15 so.

    16 Your Honours, you have no doubt read the

    17 transcript of the testimony of Admiral Domazet. We say

    18 he was quite an unsatisfactory witness. He refused, on

    19 I think a number of occasions, to answer questions that

    20 were put to him. Be that as it may, this man is an

    21 active duty officer in the armed forces of the Republic

    22 of Croatia and was sent to the Tribunal by the

    23 government of Croatia. I would submit, Your Honours,

    24 that he is not exactly, by definition, the objective

    25 quintessential witness on which all and sundry can

  30. 1 rely. He is not likely to come before this Tribunal

    2 and say that his republic, his government, was engaged

    3 in an act of aggression against the Republic of

    4 Bosnia-Herzegovina in 1993. That would be

    5 extraordinary having regard to those circumstances.

    6 JUDGE MAY: I expect that that was put to

    7 him, wasn't it? I haven't seen the testimony. I

    8 expect, when he was cross-examined, whoever was

    9 prosecuting put all that to him.

    10 MR. NIEMANN: Not entirely because the

    11 cross-examination was limited and there was

    12 considerable objections raised. He came before the

    13 Chamber in very strange circumstances. A subpoena had

    14 been issued to the Republic of Croatia to present

    15 certain documentary evidence which -- and I don't want

    16 to go into a lot of detail about this -- but for a

    17 number of reasons, that evidence didn't come before the

    18 Chamber. So what happened was he was sent along in

    19 lieu thereof. Then, when it came to cross-examining

    20 him, not far into the cross-examination at all, he

    21 said, "Well, I can't answer that because that's a sort

    22 of matter of national interest." It sort of went from

    23 there and downhill from there, I would submit, and even

    24 questions put to him by the Chamber, if I remember

    25 rightly, were not answered. So he was a very

  31. 1 unsatisfactory witness, Your Honours, and he came in

    2 circumstances which were not entirely satisfactory.

    3 We have to be realistic about this. Croatia

    4 has a vested interest in establishing that there was no

    5 international armed conflict. Your Honours don't have

    6 to think far to conclude that that is the case. I

    7 mean, apart from international condemnation which may

    8 follow, I mean, such things as war reparations and

    9 otherwise. So he came before the Chamber in

    10 circumstances where it was crying out for his

    11 cross-examination. In our submission, Your Honours,

    12 when Their Honours said, "Oh, well, the Prosecutor has

    13 had the right to cross-examine," well, in our

    14 submission, Your Honours, firstly, that is a misreading

    15 of Rule 95 in any event because, in our submission,

    16 Rule 95(B) provides examination-in-chief,

    17 cross-examination, re-examination shall be allowed "in

    18 each case."

    19 "In each case," Your Honours, doesn't mean

    20 in the case of Blaskic and that therefore the

    21 Prosecution is stopped from thereafter

    22 cross-examining. As Your Honours well know, these

    23 issues can vary and do vary from case to case, and it

    24 is quite impossible to simply say cross-examination on

    25 one instance should be sufficient forever.

  32. 1 JUDGE HUNT: Are you suggesting that the

    2 words "in each case" there means in each trial?

    3 MR. NIEMANN: Yes, Your Honours.

    4 JUDGE HUNT: Surely it means in each case of

    5 evidence for the Prosecution, evidence for the Defence,

    6 et cetera. It couldn't really be interpreted any other

    7 way.

    8 MR. NIEMANN: Well, that is an interpretation

    9 that can be placed on it. I would have thought that it

    10 is equally open to the construction that these matters

    11 will be allowed in each case.

    12 JUDGE HUNT: All the Rules apply to each

    13 case, don't they, Mr. Niemann?

    14 MR. NIEMANN: Well, maybe not, Your Honours,

    15 which may be our problem here.

    16 So, Your Honours, we say that having regard

    17 to the fact that this witness clearly should have been

    18 made available so that he could be cross-examined, it

    19 was troubling, Your Honours, how the Trial Chamber were

    20 going to determine the weight of the evidence of this

    21 witness in circumstances where they weren't able to

    22 observe his demeanour.

    23 JUDGE HUNT: But they have the video.

    24 MR. NIEMANN: They have the video, but they

    25 don't have the benefit of further cross-examination. I

  33. 1 mean, in my respectful submission, it is not to the

    2 point to say, "Well, he was cross-examined. Look at

    3 that and you can make an assessment of his demeanour,

    4 and that's all you need to do." Because each case is

    5 different. There are issues that arise in different

    6 cases which need to be addressed in different cases,

    7 and a witness may not even touch upon a point in one

    8 case but it becomes a central issue in another case,

    9 and it may be much more important, that other point in

    10 the other case, or if he does touch upon it, it may be

    11 just a passing reference to it.

    12 The issue of demeanour is not determined as a

    13 general principle where you just simply say, "Well, I

    14 saw him on television. Therefore, I can make that

    15 judgement." The issue, in my respectful submission, of

    16 demeanour is determined on the basis of that but

    17 including his answers to various questions, important

    18 questions, in the context of the particular case, the

    19 particular case where those questions have become of

    20 great interest to the parties, and that is where the

    21 Trial Chamber sits and watches and observes the witness

    22 when confronted with those issues. In my submission,

    23 Your Honours, they are not common in all cases.

    24 It is our position, Your Honours, that

    25 clearly Rule 90 cannot be just brushed aside and given

  34. 1 no effect, and that's what would happen. I mean, it is

    2 all very well to say, "Well, this is a document. Why

    3 can't it be admitted as a document under Rule 89?"

    4 Well, yes, it is a document, but it is not a document

    5 in the traditional sense; it is a means of getting

    6 around Rule 90, if you call it a document.

    7 JUDGE HUNT: The transcript is only a record

    8 of what was said. What was said is what they were

    9 trying to get into evidence by way of a hearsay

    10 statement, so normally you would call a witness to say,

    11 "I heard Admiral Domazet say this." But if you have a

    12 transcript and everybody agrees it is an accurate

    13 record, then obviously efficiency, if nothing else,

    14 would determine that the document go in. But what is

    15 in evidence are the statements which he made.

    16 MR. NIEMANN: Yes, Your Honour.

    17 JUDGE HUNT: As hearsay statements.

    18 MR. NIEMANN: Yes. And there would be -- I

    19 mean, there may be circumstances, if what Your Honour

    20 is saying is, well, if he was dead and this was the

    21 only evidence we had available, that may be the only

    22 course open to us, so you might say to me, "Well,

    23 what's the difference? It's the same position." My

    24 answer to that is, yes, sometimes the justice of the

    25 situation requires evidence to go in in this way

  35. 1 because of circumstances which are beyond our control,

    2 namely, the death of the witness.

    3 What I say to Your Honours is, it would be

    4 entirely possible for the witness to come before the

    5 Chamber and for the Defence, who want to present this

    6 witness, to say, "Well, we don't want to ask him any

    7 questions because we asked him all the questions and

    8 the transcript of those questions is here." Now,

    9 that's fine, if the Defence wants to deal with it that

    10 way. There may be no objection to that. There may be,

    11 I don't know, but there may be no objection to it. It

    12 might be a quick and efficient way of resolving it.

    13 But all of that assumes that the Prosecution -- or the

    14 other party, let's not just call it the Prosecution,

    15 whatever party it is -- is going to have the right to

    16 cross-examine and to put to the witness the various

    17 issues that the other party says is relevant to their

    18 case.

    19 In our submission, what the Trial Chamber has

    20 done is just ignored Rule 90 and gone ahead and said 89

    21 permits us to do it, and in our submission, all this

    22 procedure is a means to getting around what is a

    23 rigid provision and a strict provision but an

    24 appropriate one.

    25 Your Honours are going to be, in many

  36. 1 instances in these trials, you are going to be relying

    2 upon the uncorroborated testimony of a witness, an

    3 eyewitness to an event, which is going to be the only

    4 evidence upon which you can reach a conclusion of a

    5 most serious kind.

    6 JUDGE HUNT: Mr. Niemann, the real thing you

    7 are saying is that in the circumstances of this case,

    8 they shouldn't have allowed in a hearsay statement, and

    9 if I may say so, your best point so far has been your

    10 allegation that you weren't permitted to cross-examine

    11 him properly in the other trial. Not one word of this

    12 appears in any of the submissions that were made to the

    13 Trial Chamber, and there was nothing said, because you

    14 said at the time that you didn't think that oral

    15 argument was necessary. So that none of this was put

    16 before the Trial Chamber.

    17 MR. NIEMANN: Well, Your Honours, in our

    18 submission, which was written --

    19 JUDGE HUNT: Yes. I've got it here.

    20 MR. NIEMANN: -- I believe we specifically

    21 said that Rule 90 --

    22 JUDGE HUNT: No, no. You put the argument

    23 about Rule 90, but you never put the next stage, which

    24 I think you have come now to some sort of discretionary

    25 argument, that you should have been entitled to

  37. 1 cross-examine him because you had not been permitted

    2 fully to cross-examine him in the other trial, and

    3 there is not one word of that put before the Trial

    4 Chamber.

    5 MR. NIEMANN: The right of cross-examination.

    6 JUDGE HUNT: Well, not the right of

    7 cross-examination, the fact that you had not been

    8 permitted fully to cross-examine him at least on issues

    9 of credit.

    10 MR. NIEMANN: Your Honour, with respect I

    11 say, under paragraph 7, at the bottom of that

    12 paragraph, "Prosecution submits that the general

    13 provisions of 89 must yield to the specific provisions

    14 of Rule 90. If Rule 90 prevails and the transcript of

    15 the testimony of Admiral Domazet should not be

    16 introduced especially in circumstances where a party to

    17 the proceedings, in this case, informs the Chamber of

    18 its wish to cross-examine the witness pursuant to Rule

    19 85(B)."

    20 JUDGE HUNT: Yes, but you didn't tell them

    21 why you wanted to cross-examine him further because you

    22 say you hadn't been entitled or permitted to

    23 cross-examine him fully in the other trial.

    24 MR. NIEMANN: Oh, I see.

    25 JUDGE HUNT: That's rather important, isn't

  38. 1 it?

    2 MR. NIEMANN: Well, with respect, Your

    3 Honour, I think that it is a very onerous test to say

    4 that we should have set out in our motion all those

    5 matters which we wanted to cross-examine on, and I

    6 think --

    7 JUDGE HUNT: No, no. Forget the

    8 technicalities that seem to have been introduced in

    9 this Tribunal by having a motion for everything. It is

    10 a matter that you could have brought to the attention

    11 of the Tribunal orally, could you not, as part of your

    12 submissions as to why they should not permit the

    13 evidence in this case?

    14 MR. NIEMANN: I don't believe we were invited

    15 at any stage --

    16 JUDGE HUNT: You said quite expressly,

    17 according to the transcript, you didn't want to orally

    18 address the Judges.

    19 MR. NIEMANN: That is because Their Honours

    20 had already made a ruling. I would have thought it

    21 impertinent to address them on the question once Their

    22 Honours had ruled the admission of the evidence.

    23 JUDGE MAY: Mr. Niemann, could you just move

    24 on to this extent -- I mean, I think we have your

    25 submissions now about hearsay.

  39. 1 One of the points is this, surely, that the

    2 hearsay rule was invented because of the difficulty for

    3 juries of assessing the evidence when they hadn't seen

    4 the witness and hadn't seen him cross-examined, but we

    5 are dealing here with professional Judges, as it is

    6 often pointed out. So that although an important

    7 factor, of course, it might not be quite as important

    8 as it would be with a jury, professional Judges having

    9 more experience of evaluating evidence and documents

    10 and the like.

    11 Going on from there, you didn't immediately

    12 seek to appeal that ruling, of course, historically,

    13 you waited and you put your own motion in to call the

    14 evidence in similar form, what I have referred to as "a

    15 tit for tat," that you had put your evidence before the

    16 Trial Chamber. If the Trial Chamber had accepted your

    17 motion, you presumably would have little to complain of

    18 or would certainly not have appealed.

    19 MR. NIEMANN: Yes.

    20 JUDGE MAY: That clearly is the way it is.

    21 Well then, given those circumstances, if the

    22 Trial Chamber had acceded to your motion, they would

    23 have been faced with the evidence of the two witnesses

    24 in documentary form: in transcript but also, of

    25 course, we must remind ourselves, video form, so they

  40. 1 would have the chance to see the witness. The Defence,

    2 no doubt, will take the point that they couldn't

    3 cross-examine, and you would say, "Well, they were

    4 cross-examined," as you said in your motion, "for two

    5 or three days, that witness, during the trial, so he

    6 was extensively cross-examined."

    7 Is there anything in principle wrong with a

    8 Trial Chamber, given the amount of evidence that there

    9 is in these trials, a Trial Chamber dealing with the

    10 matter in the way which, had your motion been acceded

    11 to, would have been done here, that the Trial Chamber

    12 would have had both sets of evidence in this form?

    13 Would you make any complaint of that?

    14 MR. NIEMANN: Your Honours, the position that

    15 we were in required us to take various steps having

    16 regard to the exigencies of the point of the trial.

    17 Our position, which we believe we initially made fairly

    18 clear was that, (a) this evidence shouldn't have been

    19 admitted and (b) the reason we didn't want it admitted

    20 is because we hadn't cross-examined. That was our

    21 initial position. The Trial Chamber ruled against us

    22 in relation to that.

    23 We were confronted with, having then

    24 pronounced the position on the law, which was obviously

    25 binding upon us, to which we had to deal with it as

  41. 1 best we could, we believed that, having regard to the

    2 fact that we had reached the point where all the

    3 evidence had concluded, I think most of the evidence --

    4 all aspects of the evidence had concluded and we were

    5 only waiting to deal with submissions, that we could

    6 live with a situation, if that was the state of the

    7 law, we could live with that provided we could put some

    8 evidence before the Chamber to rebut that evidence and

    9 to enable them to balance the issue in this way.

    10 It may seem that I am now here arguing

    11 against the position that we put and, in fact, I am. I

    12 make no bones about the fact that what we did was an

    13 expedient in order to bring about a conclusion of the

    14 matter. Our problems were greatly added to when we

    15 weren't even permitted to pursue that line, that is,

    16 attempt to rebut the evidence by way of alternative

    17 testimony.

    18 Our position is, Your Honours, that the

    19 evidence of this witness should not have been put

    20 before the Trial Chamber in this way; the witness

    21 should have been called and the opportunity to

    22 cross-examine the witness should have been made

    23 available. That indeed is still our position. As I

    24 said, if Your Honours are against us on that, we say

    25 then, if Your Honours say that the evidence is indeed

  42. 1 admissible and properly admissible and that Rule 90,

    2 paragraph 1, has no application to evidence in this

    3 form, then we would submit, Your Honours, that the

    4 evidence of the confidential witness should then be

    5 admitted in like manner, which is exactly the same

    6 position now as what it was then. We haven't changed

    7 our position at all. In fact, we are on all fours with

    8 our original position.

    9 JUDGE MAY: Judge Bennouna?

    10 JUDGE BENNOUNA: Mr. Niemann (no

    11 interpretation)

    12 MR. NIEMANN: I'm not receiving an

    13 interpretation --

    14 JUDGE BENNOUNA: I don't think we should go

    15 on further entering into detail. You can hear me now?

    16 MR. NIEMANN: I can now, Your Honour.

    17 JUDGE BENNOUNA: I said that we would not

    18 prolong this discussion with the Trial Chamber because

    19 most of the arguments have been presented in written

    20 form. However, I feel that the question that was

    21 raised by the Presiding Judge, Judge May, is a very

    22 important one.

    23 As you told us at the beginning, that it is

    24 impossible, that is to say, that it is not legal to

    25 present the testimony before any other Trial Chamber,

  43. 1 for example, in the Blaskic case, that is to say, that

    2 it cannot be presented to the Chamber concerning the

    3 Aleksovski trial and for reasons founded upon Article

    4 90. A little while later, you yourself asked the Trial

    5 Chamber to hear testimony from a witness who was a

    6 confidential witness and you forgot the illegal

    7 character evoked previously. So there seems to be a

    8 slight contradiction in that regard, as regards your

    9 position, and I think that you are fully conscious of

    10 that. You cannot support one thing and the opposite as

    11 well. You cannot say that it is impossible in one case

    12 and then, without taking the necessary precautions,

    13 come and say that I would be satisfied and that it

    14 becomes legal if it is within the framework, falls

    15 within the framework of a certain form of equality

    16 between the two parties.

    17 Now, if I have understood you correctly, and

    18 everything that has been said takes on importance as

    19 far as you are concerned from the moment when the

    20 principle of the equality of the parties and equality

    21 of arms is respected, and it would be acceptable within

    22 the framework of Article 89, if I understand you

    23 correctly, and it is your request that a confidential

    24 witness was presented, and you are basing that on

    25 Article 89, are you not?

  44. 1 My question is as follows: Is this request

    2 of having an equality of arms for the two parties,

    3 would you be satisfied on the basis of Article 89? Is

    4 your own request based on Article 89, and so the

    5 equality of parties and equality of arms would be based

    6 on Article 89? Is that correct, Mr. Niemann? That is

    7 my question to you because when you shift to another

    8 terrain, you mustn't forget your own basis.

    9 Thank you, Mr. Niemann, for giving us your

    10 clarifications. I think that we can advance in matters

    11 and in examining this appeal now.

    12 MR. NIEMANN: Yes. Does Your Honour want me

    13 to address Your Honour on that point or is Your Honour

    14 satisfied with what I have said?

    15 JUDGE BENNOUNA: Can you repeat, please?

    16 MR. NIEMANN: Would Your Honour like me to

    17 address the point that you raised, or I just thought

    18 perhaps by what you concluded that Your Honour is

    19 satisfied by the point from what I said in my

    20 submissions.

    21 JUDGE BENNOUNA: No, I'm not at all

    22 satisfied. I hope that you are going to give us,

    23 briefly, your position, to state your position to us

    24 briefly as regards the justification of bringing to

    25 this hearing the justification and the fact that you

  45. 1 yourself have asked that a confidential witness and

    2 testimony by that witness -- by transcript and by video

    3 be taken into account by the Trial Chamber, testimony

    4 that was given in another case.

    5 So I'd like to know -- to hear your

    6 clarifications on that issue, what your basis is and

    7 the juridical foundations for that.

    8 MR. NIEMANN: Yes, Your Honour.

    9 Your Honours, what our position was was

    10 this: That when the issue first arose by motion of the

    11 Defence to admit the evidence of Admiral Domazet, the

    12 position taken by the Prosecution was that that

    13 evidence should not be admitted in that form and that

    14 we raised two objections to it. We raised Rule 90 and

    15 Rule -- that Rule 90 overruled or covered the issue and

    16 Rule 89 didn't apply. Secondly, that the Prosecution

    17 sought the right to cross-examine the witness.

    18 That was our position and, Your Honour, I

    19 still say it is our position, we haven't changed from

    20 that, but what position we may take on the law is not

    21 determinative of the matter. The position on the law

    22 is determined by the Trial Chamber. The Trial Chamber

    23 said that the evidence was admissible under Rule 89,

    24 notwithstanding that it was contrary to the position

    25 that we had maintained.

  46. 1 We were left with no option at that point but

    2 to comply with the law. We didn't agree with the law

    3 but we had no option; that was the law. So we

    4 immediately took steps to seek to follow the best

    5 course that we thought was available to us, and that

    6 was to put in evidence of rebuttal. Then we were

    7 denied that opportunity.

    8 Now, when we come before you now, our

    9 position is exactly the same. We say the evidence in

    10 the form of the transcript of Admiral Domazet should

    11 not be admitted, and that Your Honours should decide

    12 that it shouldn't have been admitted and that the Trial

    13 Chamber had erred when it did admit it.

    14 Now, Your Honours might well be against me on

    15 that, and Your Honours may find in a similar way to the

    16 Trial Chamber that it is admissible under Rule 89.

    17 It's not our position now. We say it is still not

    18 admissible, but Your Honours may say -- and if Your

    19 Honours say it again we must comply with the law. The

    20 fact that we have a view on the law is determinative of

    21 very little or nothing.

    22 Now, if Your Honours do decide it is

    23 admissible, we ask you to admit the evidence of the

    24 confidential witness to give us the opportunity to

    25 rebut it, because we then extend the principle that if

  47. 1 it's admissible for the Defence it should be admissible

    2 for the Prosecution in like matter. So I hope that

    3 assists Your Honour with that issue.

    4 Before I conclude, Your Honours, we're not

    5 seeking to say that the evidence of Admiral Domazet

    6 should not come before the Trial Chamber. We're not

    7 saying that. If the Trial Chamber believes it would be

    8 assisted by the evidence, fine. What we're saying is

    9 that he should be called, certainly should be called.

    10 And when the Trial Chamber said, "Well, having regard

    11 to his position, there was difficulties in him coming

    12 here," and we have difficulty from our side

    13 understanding where it came from, because it doesn't

    14 appear to come from anything that any of the parties

    15 said at least, and I wouldn't think that Croatia would

    16 have any difficulty at all in making him available, I

    17 would think that it's in their interest to do so, so

    18 what our position is, Your Honours, is that we're

    19 saying that we don't -- we're not asking you to make a

    20 decision which would end up by the Trial Chamber not

    21 having access to this evidence if it believed it were

    22 appropriate to be admitted, we're simply asking that

    23 the matter go back to them, that they review the matter

    24 in light of our submission, and that is that Rule 90

    25 precludes the tendering of evidence in this form, and

  48. 1 that Admiral Domazet should be called, and that the

    2 case should be opened.

    3 We're not contesting the -- whether or not

    4 it's in the interests of justice to reopen the case.

    5 The position we take is that if the Trial Chamber

    6 believes this evidence would assist them in reaching a

    7 determination of the matter, then we're not going to be

    8 arguing they shouldn't have the evidence.

    9 JUDGE MAY: Maybe I wasn't quick enough on

    10 this. What you're asking us to do is to allow your

    11 motion, to allow your appeal, rather, and to remit to

    12 the Trial Chamber; is this right?

    13 MR. NIEMANN: Yes, Your Honour.

    14 JUDGE MAY: On what basis are you asking us

    15 to remit?

    16 MR. NIEMANN: We're asking that the

    17 decision -- that the Trial Chamber erred when it

    18 admitted the evidence of Admiral Domazet in the way

    19 that it did, that the matter be remitted back to them

    20 to reconsider the matter, and that Admiral Domazet be

    21 called if Their Honours are minded to reopen the case

    22 to permit that to happen. And once he's called, all

    23 this after flows from that in terms of

    24 cross-examination.

    25 JUDGE HUNT: An appeal to this Chamber surely

  49. 1 gives this Chamber the right, if it says the Trial

    2 Chamber was wrong, to substitute its own opinion.

    3 MR. NIEMANN: Of course. I merely make this

    4 submission, because I was concerned that Your Honours

    5 may be concerned that the triers of fact believed that

    6 this was information that they appropriately required

    7 in order for them to make a determination on the issue,

    8 and the position of us, the Prosecution, was not to

    9 seek to deprive them of that opportunity should that be

    10 something that they require.

    11 JUDGE MAY: And if we're against you on that,

    12 what would you ask us to do in respect of your second

    13 appeal?

    14 MR. NIEMANN: If Your Honours are against us

    15 on the question of admissibility and that you say that

    16 Rule 90 doesn't preclude its admission and that it is

    17 admissible under Rule 89, we ask Your Honour that the

    18 evidence of the confidential witness be admitted, or

    19 alternatively, that the Prosecution be given an

    20 opportunity to rebut the evidence as is prescribed by

    21 Rule 85.

    22 JUDGE HUNT: Mr. Niemann, I realise that in

    23 the course of a trial things develop that you don't

    24 anticipate, and that you shouldn't be punished

    25 sometimes for having failed to raise a matter to the

  50. 1 Trial Chamber.

    2 Surely what you should have done here when

    3 the application by the Defence was made, was to say, at

    4 that stage, if the Trial Chamber is against me, then I

    5 want, as a condition of the indulgence being granted to

    6 the Defence, a similar indulgence being granted to the

    7 Prosecution so that we can tender the evidence in

    8 reply. That would then give the accused the

    9 opportunity of saying, "I'm not prepared to pay that

    10 price. We'll call Admiral Domazet." That's where it

    11 may get to here, may it not?

    12 MR. NIEMANN: That is a course that perhaps

    13 could have been open to us. The only thing I can say

    14 in our defence of that is that at one stage we sought

    15 that the Trial Chamber stay the proceedings pending

    16 this appeal, and at that stage we said, "Well, we won't

    17 delay it if our evidence can come in. If there is a

    18 concern about delay, the Defence can admit our evidence

    19 into the proceedings."

    20 JUDGE HUNT: The point I'm trying to make is

    21 the accused should be given the option of saying, "If

    22 that's the condition being imposed upon on getting this

    23 evidence in this way, I don't want it, and I'll call

    24 the admiral and let them call their mystery witness in

    25 reply." And he may have to be given that choice here,

  51. 1 may he not?

    2 MR. NIEMANN: Well, presumably he would be

    3 given that choice if the matter was remitted back,

    4 because he could then, having regard -- should we be

    5 successful, having regard to what Your Honours might

    6 say of the matter, presumably that would be a

    7 consideration they would have to take into account.

    8 Now, that doesn't address the question of how

    9 the Trial Chamber may feel about it. The Trial Chamber

    10 may say, "Nevertheless, we want the information."

    11 Well, there's another Rule to deal with that. They can

    12 bring in evidence, assuming this is evidence they can

    13 properly receive, they can do it under other Rules with

    14 their own motion.

    15 JUDGE ROBINSON: Mr. Niemann, in arguing the

    16 inadmissibility of the transcript, you have confined

    17 yourself to Rule 90, and I understand the relevance of

    18 Rule 90, but isn't it also important to point out that

    19 there are no other provisions in the rules for the

    20 admissibility of the transcript? Provisions have been

    21 made for affidavits, so I wondered whether you want to

    22 broaden your submissions.

    23 MR. NIEMANN: I'm indebted, Your Honour. In

    24 the course of what I had intended to put, I was to say

    25 that. I have, I think, made the submission that as far

  52. 1 as I can see from reading the Rules, Rule 90 is --

    2 deals with what I say is witness testimony. Whether --

    3 and I say it's artificial to convert that into written

    4 documentary form and say, "Well, that's something

    5 different." In my submission, it's the same thing,

    6 it's getting witness testimony before the court.

    7 I agree entirely with Your Honour. My

    8 research of the Rules, there is no other Rule apart

    9 from what is in Rule 94 bis and 94 ter, and I say that

    10 evidence of a like nature may ultimately be put before

    11 the Chamber under Rule 94, paragraph (B).

    12 The point I make is that if it's thought that

    13 I'm being rigid in the view that I take of Rule 90, I'm

    14 not, because in my submission, there's ample other

    15 opportunities, ample other ways to give evidence before

    16 the Chamber without necessarily having to ultimately be

    17 confronted with calling the witness. There are ways it

    18 can be done. But much of it has to be done having

    19 regard to the interests of the parties.

    20 And Your Honour is quite right, there is no

    21 other Rule that deals with transcript. There's Rules

    22 that deal with affidavits, there's Rules that deal with

    23 statements but there's no Rules that deal with

    24 transcript in this form. And the only one that comes

    25 close to it, in my submission, is Rule 94(B).

  53. 1 Finally, Your Honour, before I sit down, I

    2 haven't addressed you on an aspect that was raised by

    3 the Defence in their appeal brief dealing with the fact

    4 that we are untimely in our appeal.

    5 JUDGE MAY: That's been ruled on.

    6 MR. NIEMANN: That's my point, Your Honour,

    7 and I wasn't going to raise that.

    8 JUDGE MAY: Yes.

    9 MR. NIEMANN: Excuse me, Your Honour.

    10 Yes. I am reminded of a question Your Honour

    11 raised a moment ago about has there ever been another

    12 case where transcript was tendered, and I understand in

    13 the case of Kovacevic, which didn't reach conclusion,

    14 but in that case the transcript of a witness Greta was

    15 tendered from the Tadic case. The Tadic case hadn't

    16 been concluded. And it follows the point. So I think

    17 I may have said that I didn't know of any and I didn't,

    18 to be honest, Your Honours, but that is apparently one

    19 case where it happened. I -- but on that occasion, I

    20 believe she testified, Your Honour, she actually came

    21 and testified.

    22 JUDGE MAY: Yes. I was on that case and I

    23 can remember that. She was cross-examined, of course,

    24 which is the point. Mr. Niemann, is there anything

    25 else? Thank you very much.

  54. 1 It's now quarter to one, which means that we

    2 have been sitting for an hour and a half, which is the

    3 normal time for a break. We had been hoping, as I

    4 said, to finish this matter expeditiously this morning,

    5 because the Judges have other matters this afternoon.

    6 Mr. Mikulicic, how long do you think you

    7 might be?

    8 MR. MIKULICIC: With all due respect, Your

    9 Honours, the Defence believes that we'll be much

    10 briefer than my learned colleague, Mr. Niemann. It is

    11 impossible for me to say right now how much time

    12 exactly I will need, but I hope to finish within 30

    13 minutes. I hope that I will be able to articulate my

    14 position within half an hour.

    15 JUDGE MAY: Thank you. I'm just going to

    16 have a word with the legal officer.

    17 I'm going to ask the legal officer if he

    18 would have a word with the interpreters to see if we

    19 can determine this matter. I understand the

    20 interpreters are in agreement. We're very grateful.

    21 Mr. Mikulicic, don't think that you are

    22 prescribed as to time, and if you find you want more

    23 than half an hour, we'll have to take a break. Yes.

    24 MR. MIKULICIC: Thank you, Your Honours. I

    25 by no means think that I will be at any disadvantage

  55. 1 because of the fact that I said that I -- it won't take

    2 me more than 30 minutes to express my position.

    3 As Defence counsel and as a lawyer, I have to

    4 say that I really enjoyed listening to this legal

    5 discussion which was initiated by my learned colleague,

    6 Mr. Niemann.

    7 However, I believe that at this level,

    8 solution need not be sought on the basis of the motion

    9 of the Prosecutor that was submitted in this case.

    10 The opinion of the Defence is that the

    11 solution of the issue that has been addressed by the

    12 Prosecutor in his submission lies in -- at a different

    13 level, belongs to a different area. I believe that we

    14 can all agree that the Trial Chamber in the Aleksovski

    15 case has admitted the testimony of Admiral Domazet as

    16 documentary evidence.

    17 What does it mean actually? It means that

    18 the key argument of the Prosecutor, namely that he has

    19 been deprived of his right to cross-examination, is

    20 simply not relevant, and it is not relevant for an

    21 obvious reason, the fact that Defence had no

    22 opportunity to subject the witness to

    23 direct-examination. We believe that the Prosecution is

    24 not at a disadvantage and that the Defence is not at

    25 any disadvantage either. The equality of arms, the

  56. 1 balance of equality, has been safeguarded.

    2 The Defence has suggested and the Trial

    3 Chamber accepted that in their decision, that the

    4 testimony of Admiral Domazet be admitted as transcript,

    5 that is as documentary evidence, by invoking Rule 39(C)

    6 of the Rules of Procedure and Evidence of the

    7 International Tribunal, and that, I believe, is the

    8 essential issue here which should serve as the basis

    9 for the final decision.

    10 JUDGE MAY: I take it you mean 89(C). It

    11 seems to have been translated as 39(C).

    12 MR. MIKULICIC: Yes, 89, Your Honour.

    13 JUDGE MAY: Yes. Thank you.

    14 MR. MIKULICIC: Therefore, the issues that

    15 have been raised by the Prosecutor today before this

    16 Honourable Appeals Chamber are the issues which go to

    17 the credibility of the testimony of Admiral Domazet.

    18 And I believe that at this particular moment and at

    19 this particular instance, one need not discuss the

    20 issue any further, because at this moment we don't know

    21 what importance, what weight the Trial Chamber is going

    22 to ascribe to the testimony of Admiral Domazet, the

    23 Trial Chamber that is in charge of the Aleksovski

    24 case. We'll know that only at the moment when final

    25 decision is reached by the Trial Chamber.

  57. 1 In that decision, the Trial Chamber will

    2 state its opinion. They will evaluate the testimony of

    3 Admiral Domazet as, for example, crucial, and then

    4 after that the affected party can challenge the

    5 position of the Trial Chamber in their subsequent

    6 appeal.

    7 The Defence, therefore, believes that at this

    8 moment this issue cannot be discussed. My learned

    9 colleague, Mr. Niemann, has said that the Trial

    10 Chamber, by reaching its decision on the admission of

    11 the testimony of Admiral Domazet in the Aleksovski

    12 case, that the Trial Chamber has prejudged the case

    13 itself by stating that testimony of the said witness

    14 was indisputable.

    15 We do not wish to go any further into that

    16 and discuss the French original of the text and the

    17 English translation of the decision. However, we

    18 believe that the expression that was used in the

    19 English translation has to be understood in the context

    20 of the application of Rule 89(C).

    21 The Trial Chamber, by applying that Rule, has

    22 indicated that that particular piece of evidence might

    23 have some probative value, and that is what is at issue

    24 here. This goes to the very principle of admitting

    25 into evidence testimony from some other cases, and this

  58. 1 decision has to be considered in that particular

    2 context.

    3 Whether this documentary evidence that was

    4 admitted into evidence by the Trial Chamber in the

    5 Aleksovski case is of any relevant value or not can

    6 only be seen it at the conclusion of the case and in a

    7 possible appeal to the judgement. Such an appeal can,

    8 by all means, challenge the decision of the Trial

    9 Chamber, if that decision was so decisive as to

    10 influence the final judgement of the Trial Chamber, and

    11 that is the essence of the problem in the opinion of

    12 the Defence.

    13 We, therefore, believe that the Trial Chamber

    14 had absolute right to admit the testimony of Admiral

    15 Domazet into the evidence as documentary evidence by

    16 invoking Rule 89(C). It is a general power of the

    17 trial Chamber, and that Rule allows the Trial Chamber

    18 to admit as evidence any relevant piece of evidence

    19 that has some probative value. That concludes my first

    20 point.

    21 As regards the second part of the

    22 Prosecutor's appeal -- or, rather, the second appeal,

    23 that is the appeal to the decision of the Trial Chamber

    24 by which the Chamber rejected the Prosecutor's request

    25 to admit into evidence testimony of a confidential

  59. 1 witness which was given in a closed session, the

    2 Defence believes that in that case too, the Trial

    3 Chamber has reached a legally justified decision.

    4 Let me articulate this. If we agree with the

    5 statement that the Trial Chamber is in charge of

    6 conducting proceedings, and that the trial proceedings

    7 are in the hands of the Trial Chamber in all aspects

    8 and that the Trial Chamber can govern the procedure of

    9 the said proceedings and issue all appropriate

    10 decisions, so if we agree with that, we then have to

    11 emphasise the fact that in the proceedings which are

    12 currently being conducted against General Blaskic

    13 before this Tribunal, the Trial Chamber in charge of

    14 that proceeding reached a decision regarding a closed

    15 session during which the confidential witness whose

    16 testimony is sought by the Prosecutor, that that

    17 witness gave his testimony in a closed session.

    18 Therefore, such a testimony is confidential

    19 by its nature and it cannot be accessible to anyone

    20 other than the parties involved in the said case. It

    21 is, therefore, inaccessible to the Trial Chamber

    22 sitting in the Aleksovski case as well.

    23 The Prosecutor is now suggesting that the

    24 transcript be admitted into evidence, the transcript

    25 that is covered by confidentiality measures.

  60. 1 We are faced with at least two problems

    2 here. The first one, which consists in the fact that

    3 the Trial Chamber, which is supposed to admit that

    4 testimony in the sense of a Rule 89(C) of the Rules of

    5 Procedure and Evidence, must, as an conditio sine qua

    6 non, verify and check whether that particular piece of

    7 evidence has any probative value.

    8 It is very difficult for a Trial Chamber to

    9 evaluate probative evidence of a particular testimony

    10 when it does not have the right to inspect the said

    11 testimony. That's the first problem.

    12 The second one is, and the Defence believes

    13 that this particular problem should have been relevant

    14 for the appeal of the Prosecutor, is the fact that the

    15 Trial Chamber, which reached a decision on the

    16 confidentiality measures for the said witness, should

    17 have been requested to allow one particular testimony

    18 to be given access by parties in another case.

    19 I hope we can agree with the fact that one

    20 Trial Chamber does not have the power to alter, to

    21 change or in any other way influence the decisions of

    22 another Trial Chamber, and this is precisely what would

    23 happen if the request of the Prosecutor in the

    24 Aleksovski case were to be -- if the request was

    25 granted.

  61. 1 Such an authorisation does not lie upon the

    2 Trial Chamber, and that is exactly the reason why the

    3 Prosecutor's motion should have been rejected as it

    4 indeed was by the Trial Chamber's decision.

    5 Your Honours, we're not dealing here with any

    6 infringement of -- or upsetting the equality of balance

    7 of the parties at the proceeding. We are dealing with

    8 issues that are of a procedural nature, and the Defence

    9 firmly believes, of course, that the procedure should

    10 be respected.

    11 If in the course of the proceedings there

    12 should arise certain disputable issues as regards the

    13 application of that procedure, each party to the

    14 proceeding has the possibility, has the right, to react

    15 to certain infringements or violations of the

    16 procedure.

    17 I will not take any more of your time, Your

    18 Honours, and let me conclude with a proposal. We

    19 propose that both -- we move that both motions by the

    20 Prosecutor be rejected and that the proceedings against

    21 Mr. Aleksovski be brought to an end.

    22 If I can be of any assistance to you, it will

    23 be my pleasure to help you with any explanations I can

    24 offer.

    25 JUDGE MAY: Thank you Mr. Mikulicic. There

  62. 1 is one matter which I want your assistance, please, and

    2 that concerns the question of the Rules about

    3 confidentiality.

    4 Your submission is that the Aleksovski Trial

    5 Chamber could not make any order respecting a witness

    6 on about how protective measures had been imposed by

    7 the Blaskic Trial Chamber, and, therefore, the motion

    8 should have been rejected.

    9 Is there any reason why we shouldn't, as an

    10 Appeal Chamber, make some orders in respect of those

    11 protective measures?

    12 MR. MIKULICIC: Your Honours, the Defence,

    13 with all due respect to the Trial Chamber, does not

    14 consider that the trial -- that the Appeals Chamber has

    15 that competency. The only Chamber that has the

    16 authorisation and competency to do this is the one

    17 which is in charge of the proceedings, and it is the

    18 view of the Defence counsel that the Trial Chamber

    19 should, in that particular case, should make the

    20 pertinent decisions.

    21 Of course, these decisions can be good ones,

    22 bad ones, legal, not legal or any other kind, but they

    23 are subject to appeal. Then the Appeals Chamber are

    24 able to decide whether the decisions were good ones or

    25 not, whether they were legally founded or not. But for

  63. 1 as long as the proceeding is ongoing, and for as long

    2 as the competent Trial Chamber is in charge of those

    3 proceedings, the Defence counsel feels that that is the

    4 sole Chamber which is sovereign to make decisions in

    5 the case it is presiding over and nobody else. Thank

    6 you.

    7 JUDGE MAY: Thank you. Judge Hunt.

    8 JUDGE HUNT: Let's assume that the other

    9 Trial Chamber does make an order giving you access to

    10 the evidence of this confidential witness. What would

    11 you say if the application had proceeded before the

    12 Trial Chamber in Aleksovski, and the Trial Chamber

    13 there had said to you, "Well, you are seeking a favour,

    14 an indulgence, because you want not only to call this

    15 evidence out of time, late in the case, but also you

    16 want to do it without calling the witness. We will

    17 grant you that indulgence but only if you agree that

    18 the Prosecution should have the same right in relation

    19 to the confidential witness"? What would your answer

    20 have been to that?

    21 MR. MIKULICIC: Your Honours, discussing the

    22 question hypothetically in this way, what I can say is

    23 the following: I would never seek the Trial Chamber's

    24 indulgence for the Aleksovski case in overruling the

    25 protective measures from another case. I would never

  64. 1 ask for that to happen. If something of that kind were

    2 to be asked by the opposite side, that is to say, by

    3 the Prosecution, and if the Trial Chamber were to grant

    4 that, then I would seek the possibility of appealing

    5 that decision because, quite frankly, I feel that there

    6 is no legal foundations and possibilities for something

    7 of that kind to take place. I don't know whether that

    8 answers your question.

    9 JUDGE HUNT: Well then, you would have said,

    10 "I'm not prepared to pay that price." If you want to

    11 impose such a condition that you have to agree to this

    12 evidence of the confidential witness being admitted,

    13 you would then have called Admiral Domazet, would you,

    14 as a witness?

    15 MR. MIKULICIC: It is difficult for me to

    16 envisage a situation of that kind and I don't know what

    17 the confidential witness actually talked about,

    18 testified to. If I were to learn of his testimony and

    19 how the Defence views his testimony and what the

    20 probative value and credibility of that testimony was,

    21 then I would be able to undertake certain steps, the

    22 steps I deem necessary. What these steps would be, I

    23 cannot tell you at this point, because in the

    24 conclusion -- and the Defence lacks one premise, and

    25 that is knowledge of the contents of the testimony and

  65. 1 evidence that we are suggesting be introduced into the

    2 proceedings. The Defence cannot take it upon itself

    3 and be held responsible in bianco, that is blindly, to

    4 state its views vis-à-vis testimony which it has no

    5 knowledge of.

    6 JUDGE BENNOUNA: Mr. Mikulicic, you were

    7 asked a question by the Presiding Judge that is an

    8 important one. I am not sure that I understood your

    9 answer.

    10 The Presiding Judge has asked whether, in the

    11 Rules or in the Statute of our Tribunal, there is

    12 anything which would prohibit the Appeals Chamber from

    13 taking measures or deciding on protective measures for

    14 a witness, that is, protective measures for the

    15 testimony, measures that would ensure confidentiality.

    16 If I have understood correctly, you said no, that that

    17 is the decision of the Trial Chamber concerned and that

    18 no one else can do that.

    19 I believe that the question you asked is to

    20 know whether you are basing your statement on a

    21 provision of the Rules or the Statute in order to say

    22 what you said because our Statute gives the Appeals

    23 Chamber the power to correct any errors of facts or

    24 law; therefore, it has a rather broad leverage in the

    25 appeals when it notices that there are any errors of

  66. 1 fact, unless, of course, there is a provision within

    2 our Statute or in our Rules which clearly states that

    3 this is the responsibility only of the first Chamber

    4 which has been seized of the case and to no other

    5 Chamber. Are you basing your assertion, which is a

    6 very strong one, are you making it on the basis of

    7 anything in the Rules or the Statute? I did not quite

    8 understand the answer that you gave to the Presiding

    9 Judge. Thank you very much.

    10 MR. MIKULICIC: Thank you for that question,

    11 Your Honour. I think that it is a very interesting

    12 question, de lege ferrenda, that is to say, in futuro,

    13 for some amendment to the Rules, perhaps, and I should

    14 like to answer it in the following fashion and

    15 therefore to articulate the legal understanding that

    16 the Defence counsel has.

    17 As far as the Defence knows, neither in the

    18 Statute nor in the Rules of Procedure is there a ruling

    19 which expressly prohibits the Appeals Chamber from

    20 changing decisions of the Trial Chamber. Equally, the

    21 Defence is also conscious of the fact that the Statute

    22 and the Rules of Procedure of the Tribunal enable the

    23 Trial Chamber to take broad steps in bringing in a

    24 decision of the first instance.

    25 However, when I said that I consider that the

  67. 1 Appeals Chamber does not have the competency and

    2 authorisation to do away with the protective measures

    3 of the Trial Chamber, in stating that I was guided by

    4 the general principles of law; and it is common

    5 knowledge to us all that in the Rules of Procedure, on

    6 several occasions when decisions are made, we refer to

    7 the general principles, general legal principles,

    8 contained therein.

    9 Your Honours, my legal education was gained

    10 within the legal system which is based on Roman law.

    11 My deliberations and legal logics stem from those

    12 foundations. In a situation of that kind and in that

    13 type of legal upbringing and education and legal

    14 thought along those lines, it is unacceptable for me to

    15 change a decision of the Trial Chamber and a procedural

    16 decision to be amended in this way by the act of

    17 another Chamber. Of course, I do not wish to say, by

    18 stating that, that the decision of the Trial Chamber is

    19 the end decision and that it can never be changed, but

    20 I do repeat that it is changeable, it can be changed,

    21 but the procedure is an appeal to the judgement that has

    22 been brought; and that under another condition, and

    23 that condition is that the contested decision of the

    24 Trial Chamber had such a great influence on the final

    25 judgement in a given case that that contested decision

  68. 1 must be changed once again within the appeals

    2 procedure.

    3 That is more or less my view on that issue.

    4 JUDGE MAY: Thank you, Mr. Mikulicic.

    5 MR. MIKULICIC: It was my honour.

    6 JUDGE MAY: Mr. Niemann, time is practically

    7 up, but it might be helpful to hear your brief

    8 submission, if you would, on this question of

    9 confidentiality, since it has been raised.

    10 The position is that the order in relation to

    11 the witness whose evidence you want in was imposed by

    12 the Blaskic Trial Chamber. That being so, is there any

    13 way in which the matter can be resolved now where we

    14 are minded to allow that part of the appeal without

    15 having to go back to the Blaskic Trial Chamber, as

    16 Mr. Mikulicic has suggested?

    17 MR. NIEMANN: Your Honours, I don't know of

    18 any principle or any Rule or Article which would

    19 preclude even the Trial Chamber from imposing its own

    20 confidentiality order. It is not an amendment to the

    21 order of the Blaskic Trial Chamber, it is the

    22 imposition of a parallel order.

    23 It is our position that the Aleksovski Trial

    24 Chamber wasn't bound itself by the order of the Chamber

    25 in the Blaskic case, and in relation to that, Your

  69. 1 Honours, I rely on the recent decision in the Celebici

    2 case where Their Honours have said that they weren't

    3 bound by a previous decision of the Tadic Trial

    4 Chamber. So it is not a case of amending the Blaskic

    5 order -- it may have that effect, but in reality, it is

    6 not that, it is the imposition of a corresponding

    7 order. Certainly I think that the Trial Chamber could

    8 have done it, and there is no question, in my view,

    9 Your Honours, that you can do it.

    10 JUDGE HUNT: But surely the accused in this

    11 case must be entitled to see that evidence before they

    12 agree to any condition being imposed, the quid pro quo

    13 argument I put both to you and counsel for the

    14 respondent. They should be given the choice that they

    15 can get this indulgence in relation to Admiral

    16 Domazet's evidence only if they agree to the other

    17 evidence going in as well. They must be able to see it

    18 before they come to any conclusion. They cannot see it

    19 without an order of the Blaskic trial court, could

    20 they?

    21 MR. NIEMANN: The seeing of it, Your

    22 Honour -- there are two things, I think, Your Honour:

    23 There can be an order made -- if we go back, for

    24 example, to the order by the Trial Chamber, the Trial

    25 Chamber could have made an order which permitted them

  70. 1 to see it. It wouldn't have intended that it -- it

    2 could have extended to admit them to see it. They are

    3 in no worse position. They are not deprived of

    4 anything simply because a condition of confidentiality

    5 is imposed upon them. That condition of

    6 confidentiality was imposed on them by the Blaskic

    7 Trial Chamber. So they are in no worse or different

    8 position; they are in exactly the same position. They

    9 are in a better position because they are permitted to

    10 see it. So it may be that before the evidence could be

    11 tendered, they would then have an opportunity to

    12 address the Chamber as to why it shouldn't be

    13 confidential or why there shouldn't be an order binding

    14 on them in that respect. But in my submission, Your

    15 Honour, they are not put in any worse position simply

    16 by, for example, your Chamber, as the Appeals Chamber,

    17 saying, "Well, we'll vary the order, you can see it,"

    18 and then a question can be raised later as to whether

    19 any confidentiality order should apply when it comes to

    20 its admissibility. Regularly this happens because --

    21 it is a horse-and-cart situation. The Prosecution

    22 often finds itself in a position where it has to keep

    23 something, which would otherwise be available to the

    24 Defence, confidential until the order is made. So the

    25 Prosecution itself does it notwithstanding there may be

  71. 1 a Rule which says, under Rule 66, that this material

    2 would ordinarily be made available in the discovery

    3 process. Until the Chamber makes its order, the

    4 Prosecution keeps it confidential and then argues the

    5 matter, and the Defence can participate in that

    6 argument. But it all goes to the end result of whether

    7 it should be tendered or not.

    8 JUDGE MAY: Thank you, Mr. Niemann.

    9 We will consider this matter, and we shall

    10 give our ruling as expeditiously as we can.

    11 --- Whereupon proceedings adjourned at

    12 1.20 p.m. to await the decision of the

    13 Appeals Chamber