1 Monday, 8 December 2003
2 [Appeal Proceedings]
3 [Open session]
4 [The appellant entered court]
5 --- Upon commencing at 1.35 p.m.
6 JUDGE POCAR: Please be seated. Good afternoon to everybody.
7 Madam Registrar, would you please call the case.
8 THE REGISTRAR: Good afternoon, Your Honours. This is case number
9 IT-95-14-A, the Prosecution versus Tihomir Blaskic.
10 JUDGE POCAR: Thank you. Can everyone hear me? Interpreters?
11 THE INTERPRETER: Yes, Your Honour.
12 JUDGE POCAR: Can the appellant hear me?
13 MR. HAYMAN: Could you repeat your question, Your Honour. I don't
14 believe he heard.
15 JUDGE POCAR: I repeat: Can the appellant hear me?
16 THE APPELLANT: [Interpretation] Good afternoon, Your Honour. I
17 hear you well, and I can understand everything.
18 JUDGE POCAR: I thank you.
19 The Defence can hear me?
20 MR. HAYMAN: We can, Your Honour. Good afternoon.
21 JUDGE POCAR: Thank you. The Prosecution?
22 MR. FARRELL: Yes. Thank you, Your Honour.
23 JUDGE POCAR: Thank you. Now I would like to call for appearances
24 of the parties. I turn first to the Defence.
25 MR. HAYMAN: Good afternoon, Your Honour. Appearing for the
1 appellant is Russell Hayman, with my colleagues, to my left, Anto Nobilo,
2 Andrew Paley, and Robert Perrin. Thank you.
3 JUDGE POCAR: Thank you.
4 The Prosecution.
5 MR. FARRELL: Thank you. Good afternoon, Your Honours. Appearing
6 for the Prosecution on the evidentiary hearing will be Norman Farrell,
7 Mr. Andrew Cayley, and Ms. Susan Grogan as our case manager. During the
8 course of the hearing, as you know, there is going to be seven witnesses
9 called and there are other counsel who are involved in other matters who
10 have agreed to assist in the evidentiary hearing, and that will be
11 Mr. Mark Harmon and Mr. Ken Scott, and they will appear at the time when
12 necessary for the purpose of raising questions with the witnesses, Your
13 Honour. Thank you.
14 JUDGE POCAR: I thank you.
15 I would like now to make a few brief introductory remarks before
16 we proceed with the evidentiary phase of this hearing.
17 As announced by the registrar, the case before us today is the
18 Prosecutor versus Tihomir Blaskic. General Blaskic was indicted for
19 persecutions, unlawful attacks on civilians and civilian objects, wilful
20 killing and causing serious injury, destruction and plunder of property,
21 destruction of institutions dedicated to religion or education, and
22 inhumane treatment, the taking of hostages and the use of human shields.
23 The indictment contained 20 counts, each of which alleged the
24 responsibility under both Article 7(1) and 7(3) of the Tribunal's Statute.
25 The counts concerned violation of Articles 2, 3, and 5 of the
1 Statute, allegedly committed in the period from May 1992 to January 1994,
2 in Central Bosnia. From 27 June 1992, Mr. Blaskic was the commander of
3 the Croatian Defence Council, known as the HVO, armed forces in Central
5 The judgement in this case was rendered on the 3rd of March, 2000.
6 The Trial Chamber convicted Mr. Blaskic of persecutions, murder, and
7 inhumane acts, as crimes against humanity, as well as violations of
8 Articles 2 and 3 of the Statute.
9 Mr. Blaskic filed his notice of appeal on 17 of March, 2000. The
10 Prosecution did not appeal. During the appellate proceedings, the
11 appellant filed four motions pursuant to Rule 115 of the Rules of
12 Procedure and Evidence, seeking to admit over 8.000 pages of material as
13 additional evidence on appeal. The first of this additional evidence
14 motions was filed on 19 January 2001, and the last on 12 May 2003.
15 On the 31st of October, 2002, the Appeal Chamber issued a
16 Scheduling Order in relation to the first three Rule 115 motions that had
17 been filed by the appellant by that time. It deemed clearly admissible
18 certain of the additional evidence sought to be admitted by the appellant
19 and ordered the parties to present oral argument limited to the issue of
20 whether the clearly admissible evidence justified a new trial by a Trial
21 Chamber on some or all of the counts.
22 On 21st November 2002, oral arguments were heard pursuant to this
23 order. On 22nd November, 2002, a Scheduling Order was issued by the
24 Appeals Chamber, allowing the Prosecution to file its rebuttal material.
25 Following the filing of the fourth and final Rule 115 motion by
1 the appellant and rebuttal material by the Prosecution in relation to this
2 motion, the Appeals Chamber rendered its decision on evidence on the 31st
3 of October, 2003. It found that in the circumstances of this case, a
4 retrial was not warranted. It decided which items of additional evidence
5 and rebuttal material are admitted into the record. A total of 108 items
6 have been admitted. Six of the admitted items from the second Rule 115
7 motion are transcripts of witness testimony heard in another case before
8 this Tribunal. These witnesses will be heard in the evidentiary portion
9 of this hearing as Defence witnesses.
10 Also on 31st of October, 2003, another Scheduling Order was
11 issued, setting today as the start date for the hearing on appeal, and
12 allowing the parties to file supplementary briefs. A further Scheduling
13 Order was issued on 2nd December 2003. As set out in that Scheduling
14 Order, we are scheduled to start today and to adjourn at 7.00 p.m. this
15 evening. The Defence will have one hour to conduct its direct examination
16 of each witness. The Prosecution will then have 40 minutes to conduct its
17 cross-examination, and the scope of this examination must be limited, as I
18 will set out later. The Defence will have 20 minutes for its
19 re-examination. These times may be adjusted by the Chamber where
21 I would like to remind counsel for the Defence and the Prosecution
22 that, of course, they are not obliged to use all the time allocated to
24 As to the scope of the examination, the Chamber has issued this
25 morning an order setting out the standard to be followed for the
1 examination of witnesses on appeal. As indicated in this decision, the
2 scope of the examination-in-chief of the witnesses may encompass any
3 factual circumstance contained in the admitted evidence, as well as the
4 alleged exculpatory evidence contained in the witness summaries disclosed
5 by the Prosecution on 28th November 2003.
6 After the questioning of the witness by the parties is completed,
7 the Chamber may pose additional questions.
8 I would like also to remind the parties that this is not a new
9 trial. When an error of fact is alleged, the appellant must demonstrate
10 that no reasonable trier of fact could have reached the conclusion being
11 challenged and that this error has caused a miscarriage of justice. Of
12 course, this demonstration has to take place in light also of the new
14 Finally, the Prosecution is reminded that it is not allowed to
15 contact the witnesses at any time during their testimony, and the
16 appellant may contact them during the examination-in-chief, during the
17 re-examination, and after cross-examination, but not during the
19 Unless there are any questions, we will now proceed, but it is now
20 necessary to go into closed session to hear the witnesses. The
22 MR. FARRELL: If I may, just before the witness enters. Just in
23 terms of the scope, I just wanted to indicate to the Court the
24 Prosecution's view of the scope of the first witness, based on the ruling.
25 I've informed counsel for the Defence of the Prosecution's position in
1 this regard, and I just wanted to put it on the record prior to the
2 witness entering.
3 Taking into consideration the guidelines that the Appeals Chamber
4 has issued for the purposes of the examination this week, in relation to
5 the first witness, there were six topics that were proposed by the
6 appellant for the purposes of examination. I've reviewed the witness
7 summaries and the proposed -- or the transcripts put forward by the
8 appellant, and without, of course, limiting the scope of this examination
9 in any way on the areas that have been admitted and which arise in the
10 witness summaries, I just want to note for the record that the following
11 four topics which are listed in the appellant's notice are not referred to
12 by the witness anywhere, not in his two pages of transcripts that have
13 been admitted, nor in his witness summaries in any respect.
14 The first one is the nature and characteristics of certain
15 military orders at issue. The second is the use and meaning of certain
16 military terminology. The third is the existence of large amounts of
17 explosives in Central Bosnia. And the fourth is the appellant's
18 professional military character and lack of animus towards the Muslim
19 population of Central Bosnia.
20 Though, of course, the purpose of calling the witness, as I
21 understand it, is to discuss the control over the military police and the
22 special purpose units by Mr. Kordic, and the converse being the lack of
23 control by Mr. Blaskic, the four topics that I have referred to are not
24 found anywhere in the material before the Court. So the Prosecution fails
25 to see how it could be something that would fall within the scope of the
1 order, and I simply wanted to put that on the record before the witness
2 arrived. Thank you.
3 JUDGE POCAR: I thank you. Yes, Mr. Hayman.
4 MR. HAYMAN: Your Honour, we will be going into all of these
5 issues with at least some of the witnesses. We won't be going into each
6 issue with every witness. For example, the first witness, we actually
7 won't be going into each one of these issues, but it is our position that
8 we could, under the scope of the examination order issued by the Court
9 this morning, because all these issues are clearly implicated in the new
10 evidence that has been admitted. So as I understand it, Mr. Farrell is
11 making an objection for the record, but he would concede that these issues
12 are implicated by the new evidence admitted as a result of the Rule 115
13 motions and therefore there isn't a need for argument on this issue.
14 MR. FARRELL: I have to indicate that's not my position at all.
15 There's no evidence upon which any of this is implicated. There's no
16 evidence on the record of the four topics. They're not contained in the
17 summaries and they're not contained in the two pages of transcripts. If
18 my learned colleague would like to point me to those passages in which
19 these arise, I'll be happy to reconsider my position. Thank you.
20 MR. HAYMAN: I can, Your Honour. One moment.
21 JUDGE POCAR: Perhaps, Mr. Hayman, you could do that pointing to
22 passages when you put the questions later on, or you want to do it now?
23 Because it may be a waste of time to do it now to engage in a discussion.
24 When you put the specific question, we may address it --
25 MR. HAYMAN: I'm happy to do it, Your Honour.
1 JUDGE POCAR: -- more properly.
2 MR. FARRELL: Thank you.
3 JUDGE POCAR: So can we now proceed to call the witness. But
4 first we have to go into closed session.
5 [Closed session]
12 Pages 168 to 264 redacted, closed session
20 --- Whereupon the hearing adjourned at 6.36
21 p.m., to be reconvened on Tuesday, the 9th day of
22 December 2003, at 8.00 a.m.