Judge Alphons Orie, presiding
Judge Joaquín Martín Canivell
Judge Claude Hanoteau
Mr Hans Holthuis
27 February 2006
Office of the Prosecutor
Mr Mark Harmon
Mr Alan Tieger
Counsel for the Defence
Mr Nicholas Stewart, QC
Mr David Josse
1. On 14 February 2006 the Defence filed a confidential motion, pursuant to Rule 74 bis of the Tribunal’s Rules of Procedure and Evidence, requesting a psychiatric examination of the Accused and identifying seven questions to be answered in a medical report.1 While the motion and certain particulars of the Accused’s condition and treatment remain confidential, the Defence has confirmed that the matter may be addressed publicly.2
2. The Accused had complained of mental stress arising primarily from civil proceedings against him in France and the condition of his cell at the UNDU. His cell, at least at the time the motion was filed, was “overwhelmed with papers” relating to the present proceedings. The Defence informed the Chamber that the Accused had been prescribed medications to help allay resulting anxiety and depression.
3. On 17 February, the Chamber, having obtained the written consent of the Accused, requested Dr Falke (the general practitioner at the UNDU) and Dr Petrovic (a visiting psychiatrist) for brief reports regarding the Accused’s health, based on consultations made up until that time.3 The two reports were received by the Chamber on 22 February. Shortly before this date, the Chamber also received a report from the Registry on storage space available to the Accused.
4. In her report to the Chamber, Dr Petrovic noted “visible signs of deterioration in the subject’s defensive mental capacities” over the two-month period preceding the report. The particular symptoms need not be detailed here. Drug therapy commenced around 20 January 2006, and the Accused responded “well”. Dr Petrovic noted that the Accused had not suffered any side effects from the drugs, and that his present condition “is with satisfactorily alleviated symptoms.” The therapy is to continue for at least three months.
5. Dr Falke concurred with Dr Petrovic’s assessment. He moreover noted that the Accused’s cell had until recently been filled with archival material which “may have caused him to experience some physical symptoms and additional mental stress.” The Registry’s report to the Chamber confirmed that, as of 15 February, a secure filing cabinet in a cell adjacent to the Accused’s had been made available to him. Both Dr Falke and the Registry remarked on the Accused’s satisfaction with this solution.
6. At a hearing on 23 February, counsel for the Accused noted that the doctors’ reports, while addressing all of the questions put to them by the Chamber,4 did not address some of the questions proposed in the Defence’s motion, in particular the ability of the Accused, in view of his health condition, to give evidence on a daily basis over a period of many weeks. The Accused himself spoke of the situation as “better now”, but appeared to agree with his counsel that a more comprehensive examination by Dr Petrovic was needed.5 The Accused remarked that the proceedings in France continued to be of concern to him. He appeared to accept the Chamber’s suggestion that he seek independent legal advice on this matter.6
7. In the Chamber’s view, for a person who has been in detention for over five years, and considering the improvement in the Accused’s environment at the UNDU and his positive response to medical treatment, the present situation indicates a level of stability and normality which does not require a psychiatric examination of the kind requested by the Defence. Monitoring of the health condition of the Accused by Drs Falke and Petrovic is set to continue. (Dr Petrovic is scheduled to revisit the UNDU within two weeks.) The Chamber relies on the Accused, the Accused’s counsel, and the Commanding Officer at the UNDU to report on any significant change in the Accused’s health which might require further action or inquiry by the Chamber.
THE CHAMBER, THEREFORE,
DENIES the motion.
8. The schedule of this trial has yet again been called into question. First came an implicit challenge, in the Defence’s Rule 74 bis motion, which has been disposed of above. Next, on 20 February, came notification from the Defence that the Accused would not be called as a witness in his case on 27 February, as scheduled.7 At a hearing on 23 February, counsel for the Defence said that “The position is this: Mr. Krajisnik wishes to give evidence in his own defence.... He quite naturally wishes to give evidence when he is and feels adequately prepared to do that.... Nevertheless... it is our professional judgement that Mr. Krajisnik is not near ready... [and we] are not adequately prepared to put Mr. Krajisnik in the witness box in the confidence that he is anywhere near ready to do himself justice.”8 Rather than call the Accused as a witness, the Defence expressed a preference to continue with its “priority list”9 of witnesses, these being ten witnesses it had listed in its response to the Chamber’s prioritization order of 9 February 2006.10 Counsel added that “the Defence has already decided that it cannot live with the deadline of the 28th of April” for closing the defence case11 (set by the Chamber’s scheduling order of 18 November 200512). Counsel was asked how much time the Defence would need, notwithstanding the 28 April deadline, just for the purpose of preparing the Accused to give testimony. Counsel did not have a ready answer, but after consultation with members of his team, as well as the Accused, he replied that the Defence would need an uninterrupted block of out-of-court time from now until 1 May 2006 in order to prepare.13 The Accused voiced his agreement with his counsel’s representations to the Chamber.14
9. For much of this case, the Chamber and counsel for the Defence have disagreed about whether the Accused has been afforded “adequate time and facilities for the preparation of his defence.”15 The Chamber’s position has always been that time and facilities have been adequate throughout. In forming this view, the Chamber has taken into account, as it must, the Accused’s decision to withhold his (substantial) assessed contribution to his defence fund. Counsel for the Defence speaks of the “relentless flow of defence witnesses, with the massive... drain it makes all the time on the resources of this small Defence team.”16 Whatever words the Defence might choose to qualify the size of its team, the Accused’s failure to contribute to it financially prevents the Defence from relying on the argument from attenuated human resources. As for the “relentless flow” of witnesses, the Defence has called a mere fifteen witnesses since its case began on 10 October 2005. As the facts and figures below demonstrate, not only has the Defence had adequate time and facilities to prepare its witnesses, it has had adequate time to prepare the Accused’s testimony.
10. On 4 March 2005, the Chamber issued a decision denying a motion for adjournment filed by the Defence on 22 February of that year.17 The Chamber found that the Defence had enjoyed many thousands of out-of-court hours of preparation.18 On 25 April 2005, the Appeals Chamber affirmed that decision,19 explaining that the Trial Chamber had not abused its discretion in deciding the matter. The Appeals Chamber ruled that “[The Trial Chamber] reasonably found that adequate time had been allowed for preparation of cross-examination of witnesses, and that in other areas the Krajisnik Defence would have sufficient time during preparation of the defence case, and in the presentation of it, to prepare adequately.”20 The Appeals Chamber remarked that “Accordingly, if the Defence has not had sufficient time at this juncture to prepare an adequate strategy, it should allocate its available time to that task prior to the presentation of its own case, when it has the benefit of having heard the Prosecution case in its entirety.”21
11. The following day the present Chamber issued a scheduling order for the Prosecution’s case to close on 22 July 2005, for the Defence to make any Rule 98 bis motion orally on 16 August 2005, and for the Defence to present its case beginning on 12 September 2005 and ending on 10 March 2006.22 This provided the Defence with a total of 20 working days between the end of the Prosecution’s case and the commencement of its own case, excluding UN holidays and the ICTY summer recess.23
12. At a Rule 65 ter conference on 23 August 2005, in the week after the Chamber’s Rule 98 bis decision was delivered, counsel for the Defence stated that the Defence was not in a position to commence the Defence case as scheduled, due to workload and personal obligations. Asked on which date the Defence would be able to submit its list of witnesses and exhibits, counsel answered that “we would not be able to do it before the end of September, but Swe areC not able to say that we would be able to do it by the end of September.”24 On 26 August, the Chamber amended the trial schedule, ordering the Defence to meet its Rule 65 ter obligations by 26 September 2005, and commence its case on 3 October 2005, noting, however, that this three-week extension was not based on a showing of good cause.25
13. On 26 September 2005 the Defence filed a motion for extension of time for filing the Rule 65 ter material and for commencement of the Defence’s case.26 On 28 September the Chamber denied the motion, yet provided for the pre-defence conference to be held on 6 October, and extended the scheduled start of the Defence’s case by one week, to 10 October. In order to assist the Defence to meet the deadline for Rule 65 ter material, which the Chamber set for 3 October, the Chamber relieved counsel of the obligation to file a list of exhibits and to identify its expert witnesses. Moreover, the Defence was granted a recess between 13 October and 25 October.27
14. On 4 October the Defence filed a Rule 65 ter list of witnesses. It identified in excess of 200 witnesses, accompanied by largely inadequate summaries of their evidence.28 The pre-defence conference was held on 6 October, and the Defence opened its case on 10 October.
15. On 18 November the Chamber issued a second amendment to its scheduling order, extending the closing date of the Defence case by seven weeks, from 10 March to 28 April 2006. The Chamber cited apparent problems the Defence was facing in the preparation and presentation of its case. At the same time, the Chamber expressed its concern about “significant forced gaps” in the sitting schedule caused by the Defence, the inability of the Defence to plan witnesses beyond the very short term, and the seriously deficient Rule 65 ter summaries submitted.29 Since it was not possible for the Chamber to put in place a schedule of hearings, due to the paucity of information supplied by the Defence, the Chamber granted the Defence the freedom to decide how it should utilize the time allotted to it for preparation and presentation of evidence, on the condition that two weeks’ notice of the Defence’s developing schedule was given, and, as noted, that the Defence case closed by 28 April 2006.
16. On 8 February 2006, the Defence filed an amended list of Defence witnesses together with Rule 65 ter summaries. The list included the Accused and 68 witnesses not yet called.30
17. In brief, in terms of time available for preparation, there have been, from the close of the Prosecution’s case up to and including 24 February 2006, a total of 105 working days (excluding UN holidays and summer and winter recesses) of which 39 have been spent hearing Defence evidence, while seven have been spent in court on other matters. There have been, in other words, 59 court-free working days, or, to put it in yet another way, 56 per cent of total available courtroom days have been non-sitting days, only a fraction less than the 58 per cent which the Defence enjoyed, in accommodation of its repeated requests, in the period between 3 February 2004 and 28 February 2005 (see footnote 18, above).
18. Whereas the Defence had for some time made known its preference to call the Accused as its first witness, on 23 August 2005 Defence counsel announced that that was no longer possible.31 On 6 October the Defence reiterated its intention to call the Accused to the witness stand.32 It added that, while the Defence “would always have preferred Mr Krajisnik to be the first witness in the conventional manner,”33 its intention now was “to make Mr Krajisnik the first witness on the first day that the Court sits after the Christmas/New Year break,”34 namely 9 January 2006. On 15 November 2005 it was confirmed in court that the Accused would start his testimony on 23 January 2006 instead of 9 January.35
19. On 12 January 2006, the Chamber was informed by the Defence that a witness other than the Accused had been scheduled for 23 January.36 On 17 January the Presiding Judge remarked on “the very unpractical situation which exists at this moment that there is no schedule whatsoever and new witnesses are put in without the consent of the Chamber.... We were left without... any realistic guidance as to how the Defence wanted to present its case.”37
20. On 20 January 2006, the Defence addressed the Chamber that “as things are proceeding and have been proceeding, five days a week and we bring a series of witnesses, it has become increasingly apparent to the Defence team that there’s no practical chance of having Mr. Krajisnik adequately ready to give evidence, even by the more recent target that we indicated,” which by then had been pushed back to 20 February.38 The Defence expressed its wish to cease hearing witnesses beyond the end of January and to “switch our resources for practical purposes completely... to bringing Mr Krajisnik’s evidence before the Court as soon as possible.”39 Only then could the date of 20 February be considered a “realistic” target.40 The Chamber ceased hearing Defence witnesses as of 31 January 2006 in order to facilitate the Defence’s stated purpose.
21. The Chamber was subsequently informed that the Accused was to delay the start of his testimony by a week, to 27 February.41 Then, in an email to the Chamber’s staff, counsel for the Defence stated that “The target date for starting Mr Krajisnik’s evidence has remained at 27 February 2006... In the light of general progress and a number of matters that have unavoidably slowed the preparation for his evidence, that no longer appears a feasible date and deferral for at least a further week or two would have been realistic.... The defence are nevertheless mindful of the drawbacks of postponing Mr Krajisnik’s evidence, including the prospective difficulties caused by lack of time for other witnesses for Mr Krajisnik’s defence before the current date ordered for closing of the defence case. Accordingly we propose Wednesday 1 SMarchC 2006 as a firm date for starting Mr Krajisnik’s evidence, subject always to serious unexpected difficulties beyond the control of the defence.”42
22. On 16 February, the Chamber, not convinced that a further extension of two days was justified, issued a scheduling order setting 27 February as the recommencement date (albeit moving the session to the afternoon of that day, to facilitate contact between the Accused and his counsel during the morning hours), and noting that the Accused was the next Defence witness expected to testify.43 However, on 20 February, the Defence announced in an email that witnesses other than the Accused were being called for the week commencing 27 February, without setting a new target date for the Accused’s testimony. The Chamber intervened, forestalling travelling arrangements, wishing first to hear formally about the Defence’s reasons for this action. The Defence’s submissions of 23 February, to the effect that the Accused was “not near ready” to testify, were summarized in paragraph 8, above.
23. The Chamber is appalled by this series of surprises. We fail to understand how the Defence, after the considerable time spent on the preparation of its case and on the testimony of the Accused, moves from a request to delay the start of his testimony by two days (27 February to 1 March) to an adjournment of two months of court-free preparation time. The Defence submitted that the request for a two-day postponement was made in “desperation”.44 This does not satisfy the Chamber, which must take into account the long history of requests for adjournments and postponements, as well as the failure on the part of the Defence to present a coherent proposal – or even a proposal that could begin to be taken seriously – for scheduling within the parameters set by the Chamber.
24. It is hardly necessary to restate the incontrovertible principle that an accused is free to decide whether he wants to testify or not. However, the Chamber has difficulty reconciling the Defence’s firmly expressed position that the Accused would testify with the numerous postponements of this testimony. It is the responsibility of the Chamber to grant the Accused sufficient time for preparation, but it is as well the Chamber’s duty to avoid a situation where the numerous requests for postponement of evidence result in endless delays which are detrimental to the administration of justice, to the interests of other accused persons awaiting trial, and to the functioning of this Tribunal as a whole. The flexibility in scheduling granted to the Defence during its case so far has led the Defence to devote considerable time to the preparation of the Accused’s testimony, at the expense of presentation of other evidence. The Chamber is increasingly finding itself in the unpleasant position of either having to grant additional time on the basis of no good cause shown by the Defence, or having to risk not hearing what could be very important evidence in this case.
25. The reasons given by the Defence for not complying with the trial schedule and for its state of unpreparedness do not bring to light any new elements; they simply repeat submissions heard on other such occasions. The Chamber has previously emphasized that the Defence should present its case to the best of its abilities within the time limits that were set as long ago as 26 April 2005, and since then repeatedly extended. The moment has now come for the Accused to decide whether he still wishes to testify in his defence after so much time afforded to him in preparation.
26. The Chamber has considered imposing a stark choice on the Defence: to call the Accused as its next witness prior to hearing other evidence, or to permanently strike him from its list of witnesses. There is justification for putting this pressure on the Accused to testify next in line. It would address our concern that still more defence evidence is otherwise heard prior to the testimony of the Accused (constantly chipping away at the benefit of having an accused testify at the earliest); and it would leave us better placed – having heard the Accused – to decide, in accordance with our powers and responsibilities under Rules 73 ter (C) and 90 (F) of the Rules, the order of calling of other witnesses (and the number of them) in the diminishing amount of time remaining for the defence case.
27. Despite the fact that it is reasonably open to the Chamber to impose such a choice, we have decided to leave it to the Accused to decide whether, and when, he wishes to appear to give evidence, within the limits specified below, and thus accommodate in this respect the expressed concerns of the Accused and his counsel about their state of preparedness.
28. Considering the interests of justice, and the bind in which the Chamber finds itself, we have decided to grant one final extension to the Defence. It is an extension of an entire month. While no further extensions are foreseen by the Chamber, we will of course continue to monitor the state of the Accused’s defence to ensure a fair trial. In reaching this conclusion we have taken into account the Defence’s apparent choice to reduce the overall number of witnesses it calls by taking, instead, more time to prepare its witnesses (as indicated in paragraphs 15 and 24, above), as well as its choice to spend ample time during its examination-in-chief on topics that often did not deserve, in the Chamber’s present assessment of their level of relevance and importance, such detailed attention.
THE CHAMBER ORDERS as follows:
(a) The Defence shall call its witnesses, beginning with the ten “priority” witnesses, as of Monday 6 March 2006, and ending no later than Tuesday 4 April ; for this to be possible, a significant shortening of the expected examination- in-chief of witnesses must be achieved; revised Rule 65 ter summaries and exhibit lists are to be disclosed to the Prosecution two weeks in advance, except for the witnesses to be heard in the period 6 to 10 March, in relation to whom this disclosure must take place immediately;
(b) Should the Defence still wish to call the Accused as a witness in its case, it is hereby granted an adjournment from Wednesday 5 April to Monday 10 April (inclusive) for further preparation; the Accused’s examination-in-chief would then start on Tuesday 11 April and last for up to 20 days, that is, until Friday 12 May; cross-examination and judges’ additional questions would take place between Monday 15 May and Friday 2 June;
(c) Should the Defence wish to change the order of presentation of its evidence, or shorten the amount of time spent on hearing the Accused’s evidence in favour of hearing other witnesses, it should address the Chamber without delay for guidance.
Done in English and French, the English version being authoritative.
Judge Alphons Orie
Dated this 27th day of February 2006
At The Hague
[Seal of the Tribunal]