Tribunal Criminal Tribunal for the Former Yugoslavia

Page 10919

1 Thursday, 17 June 2004

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 4.05 p.m.

6 JUDGE LIU: Call the case please, Madam Registrar.

7 THE REGISTRAR: Good afternoon, Your Honours. Case Number

8 IT-02-60-T, the Prosecutor versus Vidoje Blagojevic and Dragan Jokic.

9 JUDGE LIU: Thank you.

10 Good afternoon, ladies and gentlemen. For the sake of the record,

11 could we have the appearances, please. For the Prosecution.

12 MR. McCLOSKEY: Peter McCloskey and Stefan Waespi.

13 JUDGE LIU: Thank you very much.

14 For the Defence.

15 MR. KARNAVAS: Good afternoon, Mr. President, Your Honours.

16 Michael Karnavas and Suzanna Tomanovic on behalf of Vidoje Blagojevic.

17 JUDGE LIU: Thank you very much.

18 I notice a representative from the legal aid section of the

19 registrar is also present in this courtroom.

20 Sir, would you please be kind enough to identify yourself.

21 MR. VAN DE VLIET: Yes, good afternoon, I am Bas Van De Vliet, I

22 am the acting chief of the Office of Legal Aid and Detention Matters.

23 JUDGE LIU: Thank you very much.

24 Mr. Blagojevic, can you hear the proceedings in a language that

25 you understand?

Page 10920

1 THE ACCUSED BLAGOJEVIC: [Interpretation] Yes, Your Honour. For

2 the time being I understand everything that's being said.

3 JUDGE LIU: Oh, thank you very much. You may sit down, please.

4 And later on when we are going to discuss something, you may answer the

5 questions from this Bench while seated.

6 THE ACCUSED BLAGOJEVIC: [Interpretation] Thank you.

7 JUDGE LIU: Well, this is a hearing -- this is a special hearing

8 for the Rule 84 bis and 85. As Mr. Blagojevic has made statements on

9 various occasions expressing his desire to testify under oath as well as

10 to make a statement in his case, the Trial Chamber finds it necessary to

11 ensure that Mr. Blagojevic is informed and understands the options

12 available to him and the possible implications of each option.

13 Mr. Blagojevic, when you have raised this issue on previous

14 occasions, the Trial Chamber has consistently advised you that decision to

15 testify under oath is one that must be taken only after careful

16 consideration and with full understanding of the possible consequences or

17 ramifications of testifying. To assist you in making an informed

18 decision, the Trial Chamber has advised you to meet with your counsel,

19 Mr. Karnavas. The Trial Chamber has further advised you that if no such

20 meeting takes place, the Trial Chamber would be in a difficult position to

21 grant your request to testify. I would like to ask some questions to

22 Mr. Blagojevic. And could we go to private session, please.

23 [Private session]

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16 [Open session]

17 JUDGE LIU: Well, Mr. Blagojevic, as you have not met with

18 Mr. Karnavas, the Trial Chamber will set out for you three options

19 available to you. We will, however, explain each option to you from an

20 objective perspective. Only Mr. Karnavas is in a position to advise you

21 on which option may be most appropriate to you in the circumstances of

22 this case. The three options available to you are: First, to exercise

23 your right to remain silent; secondly, to make a statement under the

24 control of the Trial Chamber, the content of which you will not be

25 examined about; or thirdly, to testify under oath like any other witnesses

Page 10923

1 in this case. In relation to the first option to remain silent,

2 Article 21(4)(g) of the Statute guarantees that you will not be compelled

3 to testify against yourself or to confess guilt. This right is related to

4 the right you enjoyed, to be presumed innocent until proven guilty. The

5 burden is on the Prosecution to prove you guilty beyond a reasonable

6 doubt; it is not upon you to prove that you are innocent. No negative

7 inference will be drawn by this Trial Chamber if you choose to remain

8 silent. Along with your counsel, you should, therefore, carefully

9 consider what evidence is before the Trial Chamber before deciding to add

10 your testimony to the evidence that the Trial Chamber will consider when

11 making its final judgement in your case.

12 The second option, to make an unsworn statement is provided in the

13 Rules of Procedure and Evidence, especially Rule 84 bis. While under the

14 exact language of the rule, an unsworn statement is generally made after

15 the opening statement of the parties. The Trial Chamber does not find any

16 reason to deny you the opportunity to make an unsworn statement at a later

17 time.

18 What is meant by making an unsworn statement is that you do not

19 have to make the solemn declaration, although you may if you like make the

20 solemn declaration at the start of your statement, and you should not be

21 examined by either parties or the Bench about the content of the

22 statement. There are no guidelines given for the length of such narrative

23 statement, although the Trial Chamber may limit the length if your

24 statement exceeds a reasonable length. Furthermore, the statement is made

25 under the control of the Trial Chamber. This means, for example, that if

Page 10924

1 necessary to stop you for your protection or for the protection of others

2 at a certain point or in relation to a certain topic, the Trial Chamber

3 can do so. Based on your conduct in the proceedings to date, the

4 Trial Chamber has no reason to believe that you could use your statement

5 to call into question the dignity of the proceedings, but it reminds you

6 of its right and its duty to ensure that the dignity of the proceedings

7 are not called into question.

8 As a statement under Rule 84 bis is generally unsworn and is not

9 subject of cross-examination or inquiry from the Bench, it generally will

10 carry somewhat less weight than the testimony given under oath that is

11 subject to cross-examination and inquiry from the Trial Chamber.

12 The third option available to you is to testify as a witness in

13 your case. Rule 85(C) of the rules specifically allows for you to

14 testify. If you were to testify as a witness, you would be required to

15 take a solemn declaration, like any other witnesses in this trial. It is

16 required that the party calling the witness examine the witness.

17 Therefore, in your case Mr. Karnavas would lead you through the

18 examination-in-chief, in question-and-answer format. The rules further

19 require that cross-examination is permitted for each witness; accordingly,

20 both the Jokic Defence and the Prosecution would be permitted to ask you

21 questions. Under Rule 90(H)(i), cross-examination can cover any evidence

22 which you may be in a position to provide that is relevant to the

23 Prosecution's case. Of course, you may invoke your right to remain silent

24 on certain questions if you believe that the answer may have negative

25 consequences for you. But this could possibly lead to, in some

Page 10925

1 circumstances, less favourable consideration of that aspect of testimony

2 by the Trial Chamber when it assesses your testimony. Finally, the

3 Trial Chamber may ask you questions following your testimony.

4 You should be warned that any incriminating testimony you give may

5 be used against you.

6 Mr. Blagojevic, do you have any questions?

7 THE ACCUSED BLAGOJEVIC: [Interpretation] Your Honours, it is

8 precisely because I believe that I could personally present my work and my

9 actions and how I went about carrying out my work in the geographical area

10 and at the time under consideration, because I believe there were no

11 infractions of the regulations that were then in force in the area --

12 MR. McCLOSKEY: I'm sorry, Your Honour, for interrupting --

13 JUDGE LIU: Yes.

14 MR. McCLOSKEY: I'm sorry for you interrupting. We must insist

15 that he not go into anything factual.

16 JUDGE LIU: Of course. I quite understand you.

17 Shall we go into private session.

18 [Private session]

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Page 10929

1 [Open session]

2 THE REGISTRAR: We're in open session, Your Honour.

3 JUDGE LIU: Thank you.

4 Mr. Blagojevic, now that you have been informed of the three

5 options available to you, this Trial Chamber requires you that you meet

6 with Mr. Karnavas to discuss each option in detail and to determine which

7 option is best for you in the current circumstances of your case. We

8 noticed that you said you will obey whatever decisions this Trial Chamber

9 will make.

10 In addition to meeting with Mr. Karnavas to discuss the option

11 available to you, if you choose option two, to make an unsworn statement,

12 the Trial Chamber urges you that you and Mr. Karnavas discuss the contents

13 of your proposed amendment before it is delivered in the courtroom. If

14 you choose option three, as Mr. Karnavas will be leading you through your

15 examination-in-chief and preparing you for cross-examination, the

16 Trial Chamber requires that you meet with Mr. Karnavas at any time and as

17 many times as is necessary to ensure that you are fully and sufficiently

18 prepared to come before this Trial Chamber as a witness.

19 You have expressed concern about the date of 30th July. While the

20 Trial Chamber hopes to finish both Defence cases by this date, it is

21 possible to hear you under whichever option you may choose at a later

22 date, probably in September. This would give you and Mr. Karnavas

23 sufficient time to meet, discuss the options, and prepare for either your

24 statement or your testimony, if you choose either of those options.

25 Your case is scheduled to close on the 25th of June. By 7th July,

Page 10930

1 the Trial Chamber would like to be informed about the first meeting

2 between you and your counsel have taken place. This is a decision of this

3 Trial Chamber on that subject issue. Well -- yes, Mr. Blagojevic.

4 THE ACCUSED BLAGOJEVIC: [Interpretation] I do not wish to meet

5 with him at any price. I do not wish to meet Karnavas at all.

6 Your Honours, this is how I feel. That's why I said what I said. Bearing

7 that in mind, do not force me to meet Karnavas. Make any ruling you wish.

8 I cannot interfere in that, but I do not wish to meet Karnavas ever.

9 JUDGE LIU: Well, Mr. Blagojevic, I'm not going to argue with you.

10 A decision is a decision. I think both parties should respect a ruling by

11 the Trial Chamber. This is all I could say at this stage.

12 Well, is there anything else? Yes. Yes, Mr. McCloskey.

13 MR. McCLOSKEY: Yes, Mr. President. One issue. It's come to my

14 attention that there was a newspaper article written that I discussed

15 briefly with Mr. Karnavas where the journalist said he has recently

16 interviewed Mr. Karnavas. There are some unfortunate statements in there

17 made by the journalist, and I would like the Court to be able to have

18 those -- the article - there's a previous article by the same

19 journalist - to review.

20 I've suggested to Mr. Karnavas that we just agree that it's a good

21 idea that we don't give interviews regarding the facts of the case during

22 the case, and that perhaps that will resolve the issue. But I think the

23 Court should see the articles and of course they are media articles, so I

24 think we can take them with a grain of salt. But I think after giving it

25 some thought and discussing the matter and receiving directions, I need to

Page 10931

1 provide those materials to the Court for their review. But, as I said, I

2 think Mr. Karnavas and I have had a chance to talk about it and perhaps

3 this -- we won't have to deal with a problem like this again.

4 JUDGE LIU: I see. Well, should we go to private session? Yes,

5 we'll go to private session.

6 [Private session]

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13 [Open session]

14 JUDGE LIU: Well, is there anything else that the parties would

15 like to mention? It seems to me there are none, so the hearing is

16 adjourned.

17 --- Whereupon the Motion Hearing adjourned

18 at 4.43 p.m.

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