Tribunal Criminal Tribunal for the Former Yugoslavia

Page 160

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

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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

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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

4 Bosnia.

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

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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

20 appropriate.

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

23 them.

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

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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

13 evidence.

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

18 cross-examination.

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

21 Prosecution.

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

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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

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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.

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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]

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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.