1 (10.40 a.m.)
2 THE PRESIDING JUDGE [Original in French]: First of all, I ask if everybody hears; is the
3 interpretation going through? Prosecution? Defence? Does everybody hear me?
4 MR. KEHOE: Yes, your Honour.
5 THE PRESIDING JUDGE: General Blaskic, do you hear? My colleagues? The assistants?
6 The Registrar?
7 THE ACCUSED BLASKIC [Original in Mother Tongue]: Yes, I can hear you, your Honour.
8 THE PRESIDING JUDGE: Would you please call the case?
9 THE REGISTRAR [Original in French]: We are dealing with case IT-95-14-T, General
10 Blaskic, rather, the Prosecution against General Blaskic.
11 THE PRESIDING JUDGE: Thank you. Who represents the Office of the Prosecution?
12 MR. OSTBERG: I am Eric Ostberg. I appear today with Mr. Gregory Kehoe and Miss Sama
13 Payman as our legal assistant.
14 THE PRESIDING JUDGE: The Defence? Do you not hear? There seems be a problem with
15 the equipment. Do you hear now?
16 MR. HODAK [Original in Mother Tongue]: Yes, thank you.
17 THE PRESIDING JUDGE: Who represents the Defence? Who is representing the Defence?
18 Mr. Hodak, would you rise, please?
19 MR. HODAK: Zvonimir Hodak, lawyer from Zagreb, is representing General Blaskic. Thank
21 THE PRESIDING JUDGE: Thank you. Today we are meeting in a hearing which has to do
22 with the preliminary motion which was filed by the Prosecution for non-disclosure of the
23 identity of the victims and the witnesses. First of all, this morning the Tribunal has
24 received from the Prosecution a request for a hearing in order to establish whether there is a
25 conflict of interests between Mr. Hodak and his current client, General Blaskic, and
26 another client who might be a client anyway, and who might come to the Tribunal, Mr.
28 First of all, I would like to turn to Mr. Hodak and ask him whether he has
29 received the motion from the Prosecution. That is the first question. The second question,
30 to explain something about it; if not, we will discuss the issue later on? I now give the floor to Mr. Hodak.
1 MR. HODAK: Your Honour, the motion regarding the conflict of interests between General
2 Blaskic and the accused Aleksovski is a motion I received five minutes ago, but I have
3 succeeded in reading it. I understand the intentions of the Prosecution with regard to this
4 motion, and I can also state my opinion as regards this motion today. If you like, I can do
5 that immediately, as you know.
6 THE PRESIDENT: Thank you. We will deliberate on that subject.
7 (The learned Judges conferred)
8 The Tribunal has decided that in so far as the motion was presented to Mr.
9 Hodak and that he has agreed to discuss it immediately, the Tribunal feels that the
10 discussion should take place immediately. Therefore, I will give the floor to the
11 Prosecution who will develop his opinions after which Mr. Hodak will respond. Then we
12 will deliberate on this issue probably right afterwards.
13 MR. KEHOE: Good morning, your Honour. The Prosecutor has filed this motion, not to
14 interfere with General Blaskic's choice of counsel, but really to clear up and to have the
15 court understand, as well as Mr. Blaskic understand, any potential areas of conflict of
16 interests that may exist between Mr. Hodak and his client, General Blaskic, and any other
17 of the defendants that are listed in the Prosecutor's motion.
18 At the outset of these proceedings, I have to note that Mr. Hodak informed the
19 Prosecutor some time ago that he represented all of the indictees that are listed in the
20 Prosecutor's motion. This was prior to Mr. Blaskic's initial appearance before this court.
21 There were likewise indications that there were some other entity or entities that
22 were paying Mr. Hodak's legal fees, entities other than General Blaskic or the respective
23 clients listed in the Prosecutor's motion. The Prosecutor's position is simply this. If Mr.
24 Hodak is representing all of the defendants listed in the Prosecutor's motion, there could be
25 a potential area of conflict, for the example that we set forth in our motion is a quite simple
26 one and I am sure that the Tribunal can think of many areas of potential conflict.
27 The simple one set forth in the Prosecutor's motion is, could a situation present
28 itself where Mr. Hodak in cross-examining a witness on behalf of Mr. Blaskic could
29 develop information that could be helpful to General Blaskic and could hurt one of his
30 other clients? That is a dilemma that attorneys and trial attorneys face all the time when
31 they are in a potential conflict area.
1 A second situation set forth in the Prosecutor's motion is simply an extension of
2 the first, that is, that with regard to the payors of legal fees would the development of
3 information which may help General Blaskic during the course of the presentation of the
4 defence be injurious or somehow not helpful to the payor of fees? That is the conflict of
5 interest based on the information currently in the possession of the Prosecutor.
6 The solution that the Prosecutor offers is this, preliminarily, General Blaskic
7 understands the potential areas of conflict, that he understands that there is some
8 possibility of conflict. At that juncture, once General Blaskic understands the nature of
9 the conflict or conflicts, there are two at least (and there could be others) other modes or
10 ways we could solve the problem. 1, General Blaskic could opt, as he has the right to do
11 under the Statute, for counsel of choice. Is another counsel free of any conflict of interest?
12 The other option is for General Blaskic to inform this court that he understands the nature
13 of the conflicts, that he understands the possibility of that conflict, that he understands
14 that under certain circumstances, given the multi-representation of clients or given the third
15 party payor of legal fees, that a conflict might present itself and General Blaskic could opt
16 to say, "I waive that conflict of interest".
17 If General Blaskic convinces this Tribunal that he understands the nature of that
18 conflict and that his waiver of that conflict is a knowing one, certainly he can select and
19 opt to continue with Mr. Hodak as his counsel. As I set out in the motion, I do not intend
20 to say that this is the only way that this problem could be resolved. I felt with Mr.
21 Ostberg that it was incumbent upon the Office of the Prosecutor to bring any potential
22 conflict to the attention of the Tribunal so it could be resolved as expeditiously as
23 possible. In a shorthand version, the comments that are set forth in the Prosecutor's
24 motion, that is, the nature and extent of the Prosecutor's argument.
25 THE PRESIDING JUDGE: Thank you, Mr. Kehoe. Turning now to Mr. Hodak. You have
26 spoken about this with your client. What is your opinion? Then we will ask the General
27 for his opinion and will also give its opinion and will issue an order afterwards.
28 MR. HODAK: Your Honour, I have not discussed this problem with my client yet because, as
29 I have said, I received the motion in writing some 10 minutes before these deliberations
30 started. I have read it and I fully understand what the Prosecution means by it. As my
1 learned friend of the Prosecution already said, it is a hypothetical question, what could
2 perhaps happen in this case.
3 However, I do not see any specific reason for this view of the Prosecution, all
4 the more so as all the six of the accused are covered by one indictment, so even though
5 there are factual differences and perhaps some nuances as to their legal qualifications, yet
6 there is one indictment covering six persons. It is their right to choose their counsel at their
7 discretion because no rules, no rule of the Tribunal says that one law cannot defend several
9 May I be permitted to mention some facts which may not be known to the
10 Prosecution? When the six accused on this indictment, when I received it, I set up a group
11 of 10, that is now
12 , lawyers from Croatia and Bosnia-Herzegovina. We distributed the
12 work among us and each of the accused will have two counsel defending them. Mr.
13 Aleksovski has two official lawyers, Mr. Igor Hrabar and Mrs. Ramisic(?). They are two
14 criminal lawyers from Zagreb and they will be representing Mr. Aleksovski before this
16 Of course, when Mr. Aleksovski becomes available to the Tribunal, when he
17 comes to The Hague and appears before the Tribunal, then his counsel will show their
18 academics to the Tribunal, rather, to the Registrar of the court.
19 I am the co-ordinator of that group of the lawyers and after all I was the first
20 one to come here to The Hague. I will be helping my colleagues to find their way about,
21 but I shall not be specifically participating in the defence of Mr. Aleksovski before this
22 Tribunal or any other of the accused under this indictment.
23 Therefore, I see no reason why because of something that could happen and has
24 not happened, why do we then have to discuss the conflict of interests? Because, to my
25 understanding, the conflict of interest is something to be discussed when it does occur, or
26 when the indications that it might occur are very clear, and when they show that the
27 conflict is looming on the horizon.
28 However, we still have no indications that there might be such a conflict of
29 interest. All the more so when Mr. Aleksovski is not yet under the jurisdiction of this
30 Tribunal. He has not been extradited to The Hague and the same holds true of the four
31 other accused who are also represented by this team of lawyers and who will, each of
1 them, have a different pair of counsel other than myself and Mrs. Pedisic who are
2 representing this accused.
3 So I do not think that there is a case of conflict of interest. I believe we have
4 solved the question of the protection of the interests of the accused in the best possible
5 way, as none of the lawyers will appear on any other case on this indictment. I, therefore,
6 suggest that the Trial Chamber does not go along with this motion of the Prosecution, and
7 not to think about things that might happen possibly but there is no indication that they
8 will indeed happen. Thank you very much.
9 THE PRESIDING JUDGE: Thank you, Mr. Hodak. General Blaskic, would you please rise
10 and share any opinions or observations you would like to make with the Tribunal, having
11 to do with the issue of your defence and the co-ordination? I would like you to
12 be sure to understand, General Blaskic, that the petition of the Prosecution is intended for proper
13 conduct of the trial, and the Prosecutor correctly is concerned about the fact that if there
14 are other accused arrested and then appear here at the international Tribunal for the
15 Defence as well as for the accused, and yours too since you are already here, to be sure
16 that there is no sort of conflict of interest which in the end would be harmful to you. I
17 explained what I mean by that.
18 If, in fact, in a case file -- I am speaking in general terms -- which is any type of
19 criminal case, no matter what country or legal system we are talking about in the world, if a
20 lawyer represents all the accused who have been accused in a specific case, a criminal case,
21 that is, it is not impossible but, generally speaking, in all systems at a given time, at one
22 point, the Defence of one of the accused, say, accused A, supposes that the exposition of
23 certain number of facts will not be quite the same as those elements that the accused B
24 would like to present, and for that reason the lawyer may not only be bothered, but what
25 is more important than that is that the defence of one or the other or both of them will be
26 in contradiction, one with the other, and the accused or accused persons will not be well
27 and properly defended according to the rules of proper ethics.
28 This is a problem which the Prosecutor has been interested in. In order to
29 summarise his words, he was not saying that there was a conflict of interest, nor did your
30 lawyer; your lawyer said that it was premature and he explained that for the time being he
1 was your lawyer who was appearing and was the one who was co-ordinating all of the
2 people involved in the case.
3 I have explained this to you. Now that you have understood what is the reason
4 that the petition from the Prosecutor was filed before the Tribunal, I would like, as well as
5 my colleagues, to have your opinion on this issue. I give you the floor, General Blaskic.
6 Did you understand what I have just said to you?
7 THE ACCUSED BLASKIC: Your Honour, I wish to tell you that I have not received that
8 motion and have had no opportunity to discuss it with my lawyer. Nevertheless, I wish
9 to mention that Mr. Hodak and Mrs. Pedisic, my lawyers, submitted their documents and
10 they are representing only me here which means that, as far as I understand it, they are not
11 representing other accused under this indictment. What Mr. Zvonimir Hodak has said so
12 far meets with my full support and, as regards the fairness of the trial, I have voiced my
13 opinion during my first appearance here and that I expect this Trial Chamber to uphold
14 this fairness and give proof of it. I have nothing else to say.
15 THE PRESIDING JUDGE: Thank you. The trial will render its decision. I think that there is
16 no particular urgency in this matter. If at first one is to deal with this issue which has been
17 presented today, one could think that if General Blaskic had had a different opinion from
18 the one he has just expressed, that might have meant that the hearing would have to be
19 suspended to see whether we would have to deal specifically with this issue of protection
20 of witnesses and victims a little bit later on.
21 I do feel that the petition, first of all, was something which was desirable and I
22 thank the Prosecution for having raised the issue. I believe that even if we are in a legal
23 system which is more a common law system -- you may be seated, General Blaskic, excuse
24 me -- I believe that it is also very important for the Tribunal, which is the guardian of the
25 equity of the trial and the great principles which it represents, to be sure that everything is
26 handled under proper form.
27 From that point of view, I would again like to thank the Prosecution for having
28 raised this issue. We are recording for the record Mr. Hodak's response, but, first, I would
29 just say that Mr. Hodak is the co-ordinator of this trial which does, in fact, include other
30 accused who are not here. I would also like to point out that he will not be the attorney
1 representing the other accused whom we are expecting and other possible accused who
2 might later on be deferred to the International Tribunal. This must be in our minds.
3 However, I would also like to point out that there might be at some point a
4 conflict of interest. The conflict, I would like to point out, is an issue which is something
5 not perhaps raised by the Prosecutor but the Tribunal would raise the issue, and for the
6 time being the Tribunal considers that it is premature to solve and to rule on this issue and
7 cannot be become involved in the choice of attorneys of General Blaskic, who for the time
8 being is the only one appearing before the court in this case.
9 Having said this, the Tribunal will be vigilant at any given point in the future
10 during these proceedings. If there were to be any kind of conflict of interest, there would
11 be a solution as proposed by the Prosecution or another one which we ourselves would
12 decide on. We will be careful in what we say and what we do, if we write separate
13 opinions or if we remain with a transcript as recorded by the Registrar. I will talk about it
14 with my colleagues. Having to do with the request for non-disclosure of victims and
15 witnesses, the Tribunal will decide.
16 For the time being, however, I feel that these proceedings must go on, according
17 to the agenda, with Mr. Hodak representing the Defence and, of course, we will
18 immediately now turn to the preliminary motion which was presented by the Prosecution
19 for non-disclosure of the identity of victims and witnesses.
20 The request was presented by the Prosecutor and this is why I am now going to
21 give the Prosecutor the floor immediately for him to explain the reasons for his petition.
22 The Registrar has pointed out to me up to this point this is a public session, and I would
23 like now to give the floor to the Prosecution. If there are any points which could only be
24 expressed very quickly, we would discuss that. For the time being, however, this is a
25 public hearing until such time there is a decision to the contrary. I now give the floor to
26 the Prosecution.
27 MR. KEHOE: Thank you, your Honour. I appreciate that this is a public hearing at this
28 juncture. Mr. Morro informed us of that prior to the session opening and I will guide my
29 comments accordingly.
30 The application for the Prosecution is an application under Rules 72, 69 and 75
31 for the non-disclosure of the identity of witnesses that were part of the supporting
1 material that was given to another panel pursuant to the Court's rules when the indictment
2 was confirmed. As your Honours know, under Rule 66(A) the Prosecution must turn over
3 to the Defence those statements or those items used in support of the indictment at the
4 time of confirmation.
5 The situation that we have, your Honours, is quite simple and it is laid out in
6 my motion and I will not repeat everything that is set forth in the motion. But the reality
7 of the situation on the ground in central Bosnia has made it very difficult for us to disclose
8 the identity of the names of those witnesses. Numerous witnesses, and we have been back
9 recently, as I mentioned during our last hearing, many, many of those witnesses still live in
10 the general location. There are significant hostilities taking place still in central Bosnia
11 between HVO territory and Bosnia and Herzegovina territory.
12 As a consequence of those hostilities, there have been various incidents of
13 violence against potential witnesses and other Muslims in the area. As a result of that,
14 giving the witnesses' names over to anyone at this juncture would be extremely detrimental
15 to those witnesses and place them in extremely precarious situations. The reality of the
16 situation in central Bosnia, your Honours, is that no-one can protect those witnesses.
17 We will bring a witness to this court at the request of the court, if the court so
18 desires, to develop exactly why they cannot protect these witnesses, but suffice it to say
19 at this point, your Honours, that these witnesses cannot be protected.
20 Given that fact, the only alternative on the part of the Prosecution is to move
21 for this motion. It would be much easier for the Office of the Prosecution to give as much
22 information as possible to Mr. Hodak. It would make it much easier on us
23 administratively, it would make it much easier on us legally and, naturally, it would make it
24 much easier on this Court to do the same. It would make it easier legally and
25 administratively. However, we simply cannot for the reasons set forth below. We are in
26 those exceptional circumstances contemplated by Rule 69 when we come to this court and
27 ask for an order preventing the non-disclosure of the identity of these witnesses.
28 I propose a remedy to your Honours at this point and this, hopefully, will
29 safeguard these witnesses and also assist the Defence in the preparation of the defence, and
30 that is to give these statements to Mr. Hodak in their redacted form so he can begin his
31 defence and to take those statements on a case by case basis after Mr. Hodak has an
1 opportunity to discuss them to see if he needs any more material from that particular
3 I also must keep in mind that in addition to the statements that we intend to give
4 over, or want to give over in a redacted form, there are several witness statements that we
5 would propose because of the serious situation involving those specific witnesses that
6 those statements cannot be turned over at all.
7 What we have at this point, your Honour, quite simply, just to summarise what
8 we have on our motion, is almost 100 witnesses used in support of our indictment whose
9 identities, because of what is going on in central Bosnia, preclude the Prosecution from just
10 turning these names, addresses, identities over to the Defence without the appropriate
12 We feel, your Honour, based on what we have set forth in our motion
13 concerning the situation in central Bosnia and what continues to go on regarding the
14 hostilities against particular witnesses and/or Muslims in central Bosnia, this qualifies for
15 exceptional circumstances that merits the relief of this Court. Thank you.
16 THE PRESIDING JUDGE: Before I give the floor to Mr. Hodak, Mr. Kehoe, when I have
17 read your application, it seems that first you asked that there be a hearing, whether ex
18 parte, in camera hearings, having to do with this. Have you given up on that request?
19 MR. KEHOE: No, your Honour. I did not give up on that at all. If your Honour wants a
20 witness by witness accounting of the status of all of these witnesses, the Prosecution is
21 prepared to do that, an in camera ex parte hearing. I am prepared to go through the names
22 of all theses witnesses with your Honours and prepared to inform the court of what the
23 individual situation is with each witness. The Prosecutor would request that any such
24 information be passed to the court in an ex parte in camera session.
25 THE PRESIDING JUDGE: All right then. In summary, before I give the floor to Mr. Hodak,
26 I would like to summarise what you have said for the time being. You have said in public,
27 and that you have proposed a kind of solution, that these expurgated statements that you
28 would supply bit by bit to Mr. Hodak which would allow him both to prepare his defence
29 and to know, because we must not forget that this is something that was said, and to say
30 that Mr. Hodak can file preliminary motions himself.
1 For the time being, we are talking about the ex parte in camera hearing. I would
2 like, therefore, to turn for the opinion of the Defence and ask what his opinion was or is
3 about what the Prosecution has just stated.
4 MR. HODAK: Your Honour, the Prosecutor has said that the hearing on the Rule 69 is going
5 to take place. I just want to mention that there is a subrule (B) which refers to Rule 75
6 where it is said that the Defence must have enough time in this case where the protection
7 of witnesses is requested to prepare the defence. If we have approximately said (and we
8 have said and we have heard here) that the hearing for General Blaskic could start in July of
9 this year, then in this case I am asking how would we have enough time, first of all, to
10 prepare the defence, taking into account the approximate account of 100 witnesses that the
11 Prosecution has announced; also how will we have time to give preliminary objections for
12 certain statements of the witnesses?
13 Today as I was coming to this Tribunal, in the hall, on the bulletin board, I saw
14 the name of three Muslim witnesses which will be heard in the case of Tadic. Their full
15 name and last names are indicated on the board. I am interested in the following, whether
16 the application of Rule 69 means the protection of the witnesses only until their arrival to
17 the court, or whether this protection extends even after they given the statement before the
19 If, in the case of Tadic, the names of the witnesses can be publicly announced on
20 the bulletin board, then I do not understand, taking into account certain rules and
21 responsibilities, why would not the Prosecution be able to give the Defence the names of
22 the witnesses so that the Defence could properly prepare for this trial?
23 Last week, in accordance with Rule No. 63, we have told the Prosecution that
24 we are at their disposal to negotiate with the Prosecution team and have General Blaskic
25 answer certain questions. So far it has been a very flexible proceedings. General Blaskic
26 on his first appearance at this Court said that he has nothing to hide; he would be very
27 open and co-operate both with the Prosecution and the Tribunal. I think the Prosecution
28 was quite satisfied with this discussion last week. I think that this discussion should be
29 continued this afternoon, but I do think that we will have certain difficulties because we
30 cannot open our defence and present our defence and answer all of the Prosecutor's
31 questions without at the same time having from the Prosecution released, if not the names
1 and identities of the witnesses, then at least their social status and the situation in which
2 their statements are to be given.
3 I cannot understand that a simple peasant or a soldier or a citizen of central
4 Bosnia that needs to appear before this Tribunal can have any problems because of
5 appearance before this Tribunal. I know that the Prosecution has also Generals and high
6 government officials as witnesses. Those people are not considered witnesses that need
7 protection because just by the fact they are taking this position, they have with it a certain
8 risk. I would propose that we at least be released the names and last names of such
10 I know personally that a person who has a status of a General in the Bosnian
11 Army and that is proposed to appear as a witness before this Tribunal; such a person
12 should not receive a protection of this Tribunal because this person is a General in an army
13 and if that person knows something, the duty of that person is to come here and say what
14 that person knows.
15 This is why at this moment our defence is in a bad position because we cannot
16 give quality answers to the questions of the Prosecution which we our obligated to give
17 based on Rule 63. We also cannot prepare a quality defence that should be presented to
18 this Trial Chamber.
19 Therefore, I suggest that this Tribunal carefully reviews and gives a just
20 consideration both to the rights of the Prosecution and the Defence, because the Defence
21 must know what the Prosecution is going to present in order to design a strategy that will
22 be presented to this Trial Chamber. We cannot prepare if the Defence does not know the
23 legal status or the social status of the witnesses or the circumstances that these witnesses
24 will bring up before this Trial Chamber. This would put the Defence in a fairly bad
25 position and I ask this Trial Chamber to take this into account. Thank you.
26 THE PRESIDING JUDGE: Mr. Hodak, I would first like to turn to the Registrar. There must
27 be a whole set of documents which, according to the schedules we set up during the last
28 status conference, were supposed to be translated and made available to the Defence.
29 Turning to Mr. Marro, could you give us some information about this?
30 THE REGISTRAR: Your Honour, we are respecting the schedule, because the first delivery
31 of the translations was supposed to come on 15th June. Mr. Hodak received a set of
1 documents having to do with these testimonies except for four which will be given to him
2 this week.
3 THE PRESIDING JUDGE: The commitment of the Registrar has been met. Now I am
4 asking, have these been redacted? Are the witnesses identifiable? How are they? What
5 are they like?
6 THE REGISTRAR: As far as I can remember, I do not think that these testimonies deal with
7 the witnesses that we are talking about today. Therefore, these are not really the identical
8 testimonies and I think that we are not talking about the 100 witnesses that the
9 Prosecution has just referred to.
10 THE PRESIDING JUDGE: Turning to the Prosecution, these are testimonies and documents
11 which are important for the Defence, but which do not represent the case file of the
12 testimonies. If you say "yes", I would also like to ask you another question, when will
13 you be able to give the testimonies? I am now speaking about the expurgated ones which
14 may be filed. Later on we will see whether the Defence will have them.
15 As far as the delivery is concerned, having to do with the commitments of the
16 Registrar, these are deliveries which really do not deal with the testimonies themselves?
17 MR. KEHOE: Your Honour, the answer to your preliminary question is "yes". Those were
18 not the documents that Mr. Morro was just referring to. He is correct in saying that they
19 are not the subject of these witnesses. Mr. Morro is correct in that regard. Concerning the
20 redacted statements that we are discussing today, we would be prepared to start handing
21 those over to Mr. Hodak this week. As soon as possible we will begin to redact them and
22 hand them over, keeping in mind that it is to the interests of the Prosecutor as well as to
23 the Defence and to the court naturally to hand over as much as possible.
24 On a separate note, your Honour, I do not understand with all due respect to
25 my learned colleague, how that bears on the interview of General Blaskic pursuant to Rule
26 63. Questions to Mr. Blaskic are concerning the events in central Bosnia, and the truth is
27 the truth. These particulars documents have no bearing on them. Nonetheless, we will
28 continue immediately to send those redacted documents to Mr. Hodak.
29 THE PRESIDING JUDGE: Mr. Hodak, the solution having to do with the delivery of the
30 expurgated testimonies, these are redacted versions we are talking about. Would this
31 solution be agreeable to you or not?
1 MR. HODAK: Yes, for the beginning that would be agreeable, your Honour, because we think
2 it is better to receive at least anything than nothing. At least we can see what this witness
3 is referring to and to try to begin to prepare a defence based on those circumstances. Of
4 course, this regarding the name and the last name of that person who gave that statement,
5 and also we are hoping that based on the Rule 55, we will be able to find out this at a fairly
6 early stage so that we could personally prepare for the cross-examination or, at least, for
7 the statements of this witness. But what Mr. Prosecutor just said is in agreement with us
8 because until now we have not received any statements of the witnesses, and the
9 statements that have been translated and given to us just a little while ago, these are all
10 witnesses from the English speaking area. We are very grateful to Mr. Prosecutor and Mr.
11 Marro to have received this in this time frame that is appropriate.
12 What we are interested in are the witnesses from central Bosnia. There should
13 not be any problems there, especially taking in view of the translation, because those are
14 people from the local area and their statements have been given in Croatian language.
15 Therefore, they need not be translated. We would be very grateful if we could receive at
16 least one of those statements so that we could prepare a good defence for General Blaskic.
17 Thank you.
18 THE PRESIDING JUDGE: For the way things stand now, the Defence does have some
19 documents which were delivered by the Registrar within the agreed -- on dates two weeks
20 ago, and the Tribunal is aware of the efforts that are required for the translation.
21 The ex parte hearing is not possible, and that we do not have to have an in
22 camera one immediately. My colleagues and I will discuss the issue, or assume that we are
23 talking about an in camera hearing. For the time being, however, I would like to say that
24 the statements, not the documents but the statements, of the witnesses, the 100 witnesses,
25 have still not yet been supplied by the Prosecution which means, (1) that in all cases the
26 60-day period which had been set cannot yet begin, that was 1st July, but it cannot begin
27 yet so long as Mr. Hodak does not know what is in those testimonies. That is the first
29 The second issue is the fact that since Mr. Hodak does not have these
30 testimonies, and I believe that I understood that he meant he was not satisfied with having
1 them in completely redacted form, that he would accept them but it is not really what he
2 would like.
3 There is a solution, however, since Mr. Hodak was referring to the Tadic case, I
4 myself was curious about what was going on in that case which is now pending before
5 Trial Chamber 2. I do see the problem of the protection of witnesses lasted for three
6 months. On 18th May 1995, the Prosecutor filed a motion. Afterwards, I could not tell
7 what the difference was between this case and the Tadic case. On 2nd June, the Defence
8 answered the request. On 15th June there was a hearing before the Trial Chamber. It was
9 in camera, it was not ex parte, but it was in camera. Actually, it was on 21st. The 15th
10 was the decision that it would be in camera. On 21st June, the hearing in camera took
11 place on 10th August. There was a response from the Trial Chamber.
12 The difference, Mr. Hodak, between the Tadic case and the case in which
13 General Blaskic is involved in which we are dealing with now, is that the problem was not
14 raised in the same way. When you came into the vestibule of the Tribunal and you saw
15 the names, you should know that everything which had to be discussed about protection
16 of witnesses was settled in the decision of 10th August 1995 by a decision of the Trial
17 Chamber after a petition filed by the Prosecutor and a response from the Defence.
18 I cannot become involved in things which are not under my jurisdiction, but
19 turning to the jurisdiction, I can say that when you see the name of a witness which is on
20 the list of information to be given out to the press, the case of the witness in question was
21 settled. There is also another way of settling things, as you know, which is at any point
22 during the hearings the Trial Chamber can decide on other protective measures which are
23 more specific.
24 The difficulty that we are encountering here, and I would like to share this with you, with
25 the Prosecution and with the Defence, is that the Prosecutor today is presenting
26 to us a general type of petition, saying: "No name can be disclosed because the situation in
27 the territory is such that it could provoke such and such incident and means that we cannot
28 give out any names of any witnesses"; whereas, in the Tadic case, the question arose in a
29 different manner.
30 The Prosecutor gave a very detailed description of his requests vis-a-vis each of
31 the witnesses and then the response of 10th August was a decision which was reached
1 witness by witness, saying, for example, that this or that witness would now be known as
2 "Witness A", etc. There would be other protective measures that either were intended to
3 protect the anonymity or the confidentiality of the witnesses.
4 At this point we are dealing with a general type of petition. Of course, I do
5 understand that this is general. They say there are about 100 witnesses but, in addition to
6 that, the testimonies are not yet available to the Defence. We have now been caught up by
7 time because there is a 60 day time period which was set and which is to be counted from
8 1st July.
9 I, therefore, turn to the Prosecution and say that the Tribunal is the guardian of a
10 just trial. We must be sure that the victims and the witnesses are protected, but also be
11 sure that the rights of the Defence are protected as well and assured in a very difficult
12 balance, given the circumstances, but this is something which the Tribunal must ensure.
13 I, therefore, ask the Prosecutor whether (as was done in the Tadic case) he could
14 give to the Defence under the jurisdiction and supervision of the Tribunal during this week,
15 could he suggest to the Tribunal a list of protective measures for the witnesses, as the
16 Prosecutor's Office did for the Tadic case, that is, to take the list of about 100 names and
17 to say that for 50 witnesses the need for protection, for 20 they have to be completely
18 protected and for 10 they have only to have their identity protected, whereas others must
19 be protected in this and this aspect, having to do with the various facts which will identify
20 them. The Defence would receive this, and could contest it or might not challenge it,
21 depending upon its own interests and then the Tribunal would render a decision,
22 somewhat like the decision which was rendered in the Tadic case. That is the first solution Ê
23 which I think, in fact, is the one which is required by the text.
24 The second solution, however, could be to ask whether the Defence would ask
25 that all the testimonies be given to him in redacted form in a kind of a dialogue between the
26 Defence and the Prosecution in which the Tribunal would not become involved, and
27 consider that there was an agreement between the Defence and the Prosecution.
28 In other words, there are two possible solutions. The second is the one that the
29 Prosecutor is suggesting, that is, there would be expurgated testimonies, in which we
30 would have to settle the question of time, but I would like to be sure that everyone is in
31 agreement. If the Defence does not agree, at that point I think that we must go back to our
1 text. That is, in so far it is the Prosecutor's requesting the protective measures, he, the
2 Prosecution, must give information, the names of the witnesses and the different kinds of
3 protective measures he wants. This will be discussed by the Tribunal after which an order
4 will be rendered. The Tribunal will, as I said, answer. I cannot suggest when; I am one of
5 those who wants things to go quickly, given the fact that we have an extremely busy
6 schedule. If we choose the second solution, we could set up a schedule. Perhaps the
7 Registrar would like to take the floor?
8 Turning to the Registrar, he has just pointed to a certain significant and new
9 constraint which is arising. Perhaps I can give the full exposition of this problem to these
10 observations, that is, which Mr. Marro has just explained to me.
11 THE REGISTRAR: Your Honour, I would just like to draw your attention and the attention
12 of the Trial Chamber to a point which requires some explanation. Unlike what Mr. Hodak
13 says, unless I am mistaken -- the Prosecutor, of course, can contradict what I am just going
14 to say -- I do not have the impression that any of the testimonies will be available in
15 Croatian, Serbo-Croatian, automatically.
16 The way the Office of the Prosecutor now works, that is up to this point,
17 perhaps there has been a change, and that the position of the Registrar then was something
18 which wanted to have that change, but that there was no final recording of the testimony
19 that was re-read to the witness in his own language. The documents, in fact, are produced
20 in English or in French which means, therefore, that there must be a retranslation of the
21 documents from English or French to Serbo-Croat in order to give it to the Defence. If we
22 are speaking about 100 testimonies, we are speaking again about 100 translations, unless,
23 of course, the Office of the Prosecutor would be willing to change the manner in which it is
24 working on this point, which is something which the Registrar has been really hoping for
25 for over a year now.
26 THE PRESIDING JUDGE: Prosecution?
27 MR. KEHOE: With regard to the policy of the Prosecutor's Office, I am somewhat on a lower
28 level than this Office and I am not part of any policy change, your Honours, but Mr.
29 Marro is again correct in saying that the statements are not in Croatian or Serbo-Croatian,
30 if you will, but are written in English. So, consequently, again Mr. Marro is correct that
31 they will have to be translated into General Blaskic's language.
1 THE PRESIDING JUDGE: Thank you, Mr. Morro. I would like to repeat the two proposals
2 I have made. I am going to number them. If you have any others, of course, the Tribunal
3 will be glad to hear them. The first solution, therefore, would be, as we said two weeks
4 ago, in fact, that the Office of the Prosecutor would give to us (as it should have done
5 today) between now and Friday, that is the end of this week, will present a request which
6 will give the details of the protective measures for the witnesses which it would like to
7 present to the Tribunal. That is the first thing.
8 The request would be submitted to the Defence. I will ask the Defence to
9 respond to this by 26th June, on Thursday, in which case there could be a hearing. We
10 will try to find a proper time, but it might be on Friday, so that is to say the 28th -- we do
11 know, of course, that we have an extremely busy schedule at that point -- which means
12 that the problem of the protection of the witnesses and the victims would be settled. The
13 Prosecutor could choose which witnesses it wants, perhaps not 100 -- I do not want to get
14 mixed in and involved in what it is going to do with its strategy -- but he would act the
15 way it was done with the Tadic case. We would try to shorten the time period as much as
16 possible, and everyone has to try to help to do so.
17 The Judges, of course, will have to write up their decisions which requires some
18 time to reflect. We would render a decision in the first few days of the month of July on
19 all of the protective measures for the victims and the witnesses. In other words, the three
20 month time period which was used in the Tadic case would be something which we would
21 try to shorten to about one month. As you know, we began to speak about this issue two
22 weeks ago already, if not further.
23 That is one solution. I cannot impose the solution. I do not want to impose it. I
24 do not think it would be a good thing for the administration of proper justice. Therefore,
25 we must reach an agreement.
26 The second solution, actually, would be the most extreme, of course, and that
27 would be to let things go as they would go, that the testimonies will be translated into
28 Serbo-Croat so that a Serbo-Croat could read them at his leisure. We would no longer set
29 any time period 60 days after which the preliminary motions would start to be counted
30 from -- we had spoken about 1st July but, if my colleagues agree with me, we may have to
31 see what is the starting point for the 60 days, maybe it has to be changed, we would expect
1 the Prosecutor to be ready. When the Prosecutor is ready, he will communicate all of the
2 testimonies. Once he is ready, within the time period which he has set, he will submit the
3 request for the Defence measures that he has asked for. The Defence will take time to
4 answer, will contest, will challenge, say, "No, I do not agree with this. This has not been
5 done properly because we have not done this, or this has not been done". This is a second
6 solution. Of course, in that solution we would take much more time.
7 The third solution which is the middle ground is the one which the Prosecutor
8 suggested, that is, that the testimonies, conditional on the reservations expressed by Mr.
9 Marro, the Registrar, would be retranslated into Serbo-Croat. It is true, we can really
10 regret the fact that these have to be retranslated since they were originally in Serbo-Croat,
11 they have to go into English in order to go back into Serbo-Croat. It seems to me that is a
12 rather heavy procedure but, all right, in justice there can never be too much heaviness, if
13 you like, so long as things are properly carried out.
14 This is the solution which the Prosecutor wanted; the testimonies would be
15 redacted, either all of them would be completely redacted, but here is where the Tribunal
16 comes in. There must be an agreement, a complete unconditional agreement, on the part of
17 the Defence because it is the Tribunal who is the guardian of this very subtle balance
18 between the rights of the accused and the protection of the witnesses.
19 The Tribunal must be very aware of what is going on. It is true that if the
20 Defence accepts having from this point right now very quickly all of the testimonies which
21 have all been redacted, expurgated, that is, under the conditions which we will point out
22 when we render our decision which, of course, will be a quick one at that point, we may Ê
23 well be able to reach a shortened time period, but given things as they stand now, this is
24 how I think we can summarise the situation. We have to find a solution one way or the
26 Who would like to speak? Perhaps, Mr. Hodak, you would like to indicate
27 what your part on this issue is. I am foreseeing or trying to impose any of the issues.
28 Everyone must understand that very clearly.
29 MR. HODAK: Your Honour, since the fate of my client depends considerably on the solution
30 of this problem, I should like to ask for a favour, that is, permit me to consult with my
31 client for a minute or two about these three solutions. It may be done here and, with your
1 permission, I will approach him and see which one of these three solutions would suit him
2 best. I know which one would suit me best but, of course, I have to take note of my
3 client's view. So may I? Thank you.
4 THE PRESIDING JUDGE: Mr. Hodak, of course, we agree that you discuss it with your
5 client because we believe it is very important. I also think that the Tribunal also has to
6 think about it. We are all colleagues here. I am, perhaps, the presiding judge, but there are
7 three Judges and we also have to consult and the Tribunal, which is the guardian of the
8 Rules. It is very difficult, a Chamber -- the second Chamber has already seen it. The
9 schedule is very tight. Three months have already elapsed. We shall also have to adjourn
10 to deliberate it among us. I cannot fix it. Perhaps we could go on at 12.15 or, if not then,
11 we shall do it in the afternoon but at the moment I am announcing a break. Thank you.
12 (11.40 a.m.)
14 (12.50 p.m.)
15 THE PRESIDING JUDGE: Mr. Hodak, I give the floor to you, since you have now spoken
16 with your client.
17 MR. HODAK: Yes, your Honour. I have talked to my client and we have come to the
18 conclusion that we would accept the first proposal out of the three that you have given to
19 us today, because it would mean from our side that, in the first phase, we would agree to
20 the complete protection of identity of the witnesses without any indication of their social
21 status or anything similar to that. But we would also request that the Prosecution give us
22 the translated statements concerning the events and circumstances that the witness talks
23 about. We would like Rule 75 to be respected, so that the identity of the witness be
24 disclosed well in advance so that we can prepare the defence.
25 So for now we would agree to accept statements without any indication of the
26 social status of the witnesses, but we want to have the statements well in advance so that
27 we can call on those statements when we give preliminary motions and in order to prepare
28 the defence. So we accept the first proposal which would lead to the most prompt trial.
29 THE PRESIDING JUDGE: OK, Mr. Hodak, and General Blaskic agrees, you would accept
30 the testimonies being given to you within a time period which will be set by the
31 Tribunal in a redacted form. A little detail perhaps. I did note in the petition from the Prosecution
1 that they would be expurgated, specifically having to do with the names of the victims.
2 Did you see that, Mr. Hodak, that the victims' names would also be expurgated? Did you
3 accept that as well?
4 MR. HODAK: Yes, we accept no indication of the names or social status, but we want to
5 know the circumstances concerning the statements and the facts. We want that to be
6 translated fully.
7 THE PRESIDING JUDGE: The conditions in which these testimonies will be presented mean
8 that all of them must be translated into Serbo-Croat. Therefore, my colleagues and I are
9 stating that you accept the proposal from the Prosecution, but you add two conditions:
10 everything must be translated into Serbo-Croat and that, in accordance with Rule 69, the
11 disclosure of the witnesses and victims be given you to so that you can prepare your
12 defence. Is that correct?
13 Turning to the Prosecutor, do you wish to make any comments about what the Defence has
14 just said?
15 MR. KEHOE: Well, this was my proposal, your Honour. Your Honours, as you know, we
16 were willing to hand over these redacted statements. My question for Mr. Hodak and for
17 the Court is, should we begin to hand over the statements to Mr. Hodak in their English
18 form and then as they get translated, in whatever form they are going to be translated,
19 they would then be passed on to them; or should that be postponed until all have been
21 We are certainly willing to begin to send to Mr. Hodak the English versions with
22 the appropriate redactions immediately. I just ask for a little guidance from the Court at
23 this point.
24 THE PRESIDING JUDGE: The Tribunal has spoken about all of these questions and would
25 like things to be very clear. First, the Tribunal is concerned that the testimonies of the
26 witnesses be protected. This has to do with proper justice and the credibility of the
27 Tribunal itself. The witnesses must know that they are protected.
28 The Tribunal also wants to be sure that the rights of the Defence have been
29 respected according to the best standards possible.
30 Under these conditions the Tribunal will deliberate about its decision, but you
31 most know that in its decision there will be dates and time periods, both for the delivery of
1 the testimonies which have been redacted, and time limits for the Registrar to have the
2 documents translated into Serbo-Croat. This assumes, therefore, that we will be extremely
3 vigilant about the respect and honouring of these time periods which is intended to
4 facilitate the task of the Prosecution, but also of the Defence. Behind all of this, all of
5 those people who are not here within the confines of this building, that is the witnesses
6 who are not here right now, the Tribunal must also be concerned about.
7 Under those conditions the Tribunal will suspend the hearing and will render its
8 decision at 3.30 this afternoon. The court stands adjourned.
10 (4.00 p.m.)
11 THE PRESIDING JUDGE: I would like once and for all for us to bring the accused in when
12 the Presiding Judge states so. I do not think that is complicated. We have to sit down. I
13 think that the accused can wait for a moment. It should be clear. All right?
14 Here is the decision further to the hearing of this morning.
16 (The Presiding Judge read the decision).
18 THE PRESIDING JUDGE: The hearing is adjourned.