1 Wednesday, 12 March 2003
2 [Status Conference]
3 [Open Session]
4 [The accused entered court]
5 --- Upon commencing at 3.02 p.m.
6 JUDGE ORIE: Madam Registrar, will you please call the case.
7 THE REGISTRAR: Good afternoon, Your Honour. This is case number
8 IT-00-39-PT, the Prosecutor versus Momcilo Krajisnik.
9 JUDGE ORIE: Thank you, Madam Registrar. Since this is at least
10 my first appearance in the case against you, Mr. Krajisnik, I'd like to
11 introduce myself. I'm Judge Orie.
12 May I have the appearances.
13 MR. HARMON: Good afternoon, Your Honour. My name is Mark Harmon.
14 To my right is Mr. Alan Tieger. We represent the Office of the Prosecutor
15 in these proceedings.
16 JUDGE ORIE: Thank you, Mr. Harmon. May I have the appearances
17 for the Defence.
18 MR. BRASHICH: Doesn't work, Your Honour.
19 Your Honour, Deyan Brashich. I'm lead counsel for the defendant.
20 And with me is Mr. Nikola Kostich. Good afternoon, Your Honour.
21 JUDGE ORIE: Thank you, Mr. Brashich. Good afternoon too, of
22 course, to everyone.
23 Yes. I take it that you prefer to have a microphone that
25 MR. BRASHICH: I think I'll be doing most of the speaking, Your
2 JUDGE ORIE: This is, I take it, the last Status Conference that
3 will take place before the commencement of the trial. The commencement of
4 the trial has been scheduled for the 12th of May of this year.
5 The Trial Chamber will, as you might know by now, will be composed
6 of myself as Presiding Judge, by Judge El Mahdi, and a new ad litem Judge
7 that has to be appointed and, of course, assigned to this case. Once this
8 has been done, I believe it will be appropriate for call for a second
9 Pre-Trial Conference with the attendance of the new ad litem Judge. That
10 could take place shortly before the beginning of the trial. The parties,
11 of course, will be notified in due course of the date for such a new
12 Pre-Trial Conference.
13 The purpose of this Status Conference of today is to settle a few
14 -- small number of issues that are related to the completion of the
15 pre-trial stage of this case and also for the preparation of the trial
16 itself. Therefore, I would like to first discuss with you very briefly
17 the agenda. I take it you have received a provisional agenda from Mr.
18 Harhoff, is that correct, on which appears outstanding motions, the
19 submission of lists of viva voce witnesses and 92 bis statements and
20 transcripts and submission of the list of exhibits. The third issue,
21 depositions under Rule 71 of the Rules of Procedure and Evidence. Number
22 four, the estimated length of the Prosecution's case. Rules of the road,
23 a question mark is put behind a trial management seminar. Further is on
24 the agenda the health and the condition of you, Mr. Krajisnik, the
25 accused, and any other matters raised by the parties.
1 Is there anything at this very moment you'd like to add to the
2 agenda or would there be any observation you'd like to make in view of the
3 agenda suggested?
4 MR. HARMON: There's nothing on behalf of the Prosecutor.
5 MR. BRASHICH: Nothing on behalf of the Defence, Your Honour.
6 JUDGE ORIE: Thank you very much. Then we'll proceed with the
7 agenda. The first item to be the outstanding motions.
8 As far as I am aware of, but I still have to grow into the case as
9 well, there are six outstanding motions as far as I'm aware of. The first
10 one is a Defence motion of the 13th of September, 2002. That's the motion
11 applying for an order suppressing illegally intercepted communications. I
12 would call that a first category on its own.
13 Then we have four motions pending on the disclosure of exculpatory
14 material, one of the 29th of December, 2002, that would concern
15 exculpatory material that has been obtained or gathered in what then was
16 the case against Mr. Raznjatovic. The next one is a motion of the 9th of
17 January, 2003, exculpatory material obtained in the case against Ms.
18 Plavsic. A third motion of the 16th of January, access to the exculpatory
19 statement of Sefer Halilovic; then the fourth is a motion of the 21st of
20 January 2003 to compel production of exculpatory material. This I would
21 call the second category, that is, the exculpatory material motions. And
22 then the third category, containing only one motion, is the Prosecution
23 motion of the 20th of February, 2003 for vacation of protective measures
24 for a UN witness.
25 Let me first start with the last one. Is the motion of the 20th
1 of February, 2003 for vacation of protective measures for a UN witness, is
2 it uncontested?
3 MR. BRASHICH: Yes, Your Honour.
4 JUDGE ORIE: We will soon give a decision on that.
5 I then go back to the first category, that is the motion for an
6 order suppressing illegally intercepted communications. The Chamber hopes
7 that this motion can be decided at some time during next week, but it
8 raises legal issues, factual issues that need proper attention, but we'll
9 decide on that as soon as possible.
10 The other motions are -- yes, Mr. Brashich.
11 MR. BRASHICH: Your Honour, with regard to the first motion, the
12 motion to suppress the intercepted communications, I believe that there is
13 not only questions of law in the motion but there also are questions of
15 JUDGE ORIE: I think I mentioned both, matters of law and fact,
16 but -- yes.
17 MR. BRASHICH: With regard to that, Your Honour, would the Chamber
18 envisage holding a hearing on the questions of fact?
19 JUDGE ORIE: I couldn't tell you right now, but of course when
20 preparing for this issue we will be confronted with perhaps facts that are
21 not clear to the Chamber, but I first have to study further on it before I
22 could give you an answer to your question.
23 Then the last category, that's the category of four, the
24 disclosure exculpatory -- the disclosure of exculpatory material. I have
25 read the motions. I have also read what has been said about it during a
1 recent meeting with Mr. Harhoff.
2 I'd like to stress very much not to file motions when a telephone
3 call could provide a solution to the problem. I might even stress that if
4 no telephone call is made prior to filing a motion, the parties will be
5 instructed, upon having received the motion, first to use the telephone
6 before a decision will be given on the -- on the motion. I think whatever
7 matter can be solved -- resolved by the parties should be resolved by the
8 parties, and the Chamber would very much like to concentrate its energy on
9 issues that are in dispute between the parties and remain to be in dispute
10 between the parties.
11 As far as a decision in this respect is concerned, I am aware that
12 progress has been made in disclosure, and it might be not final, but I'd
13 like to hear from the parties at this very moment whether the progress is
14 such that it would be worth to see whether we can move on this way or
15 whether there are specific issues which would ask for a decision, because
16 the basis for the matter is clear, that there is a continuing obligation
17 by the Prosecution to disclose whatever exculpatory material is known to
19 Is there any observation needed in this respect at this moment?
20 MR. HARMON: Mr. President -- or Your Honour, we certainly agree
21 with Your Honour's procedural requirements or suggestions as to the use of
22 the telephone before using resources of the Prosecutor in the Tribunal to
23 respond in writing, and so we accept that, and we encourage that, and we
24 appreciate the decision and the guidance.
25 In respect of each of those motions, we have continued to review
1 the matters. In some cases we have turned over materials to the Defence.
2 We are continuing to review each of the matters. I can't give you at this
3 point in time a full representation as to whether those searches have been
4 completed, but I can tell you they have been ongoing since we have
5 received the motions, and we intend to abide by the requirements of Rule
6 68. That's all I have to report on that.
7 JUDGE ORIE: It depends on what the Defence will say. When I
8 referred to using the telephone, of course it might be clear to both
9 parties that disclosure of exculpatory material is not dependent on a
10 prior telephone call. That, of course, would be a distortion of the duty
11 of the Prosecution, but if there's any specific issue that is raised in a
12 motion, it could have been raised prior to that in a telephone, and that's
13 what I refer to.
14 Mr. Brashich, is there any comment you have on this issue?
15 MR. BRASHICH: Yes, Your Honour. The Defence is mindful of the
16 Court's position and of course will follow the suggestion. Until today,
17 in the prior case in which I was involved in, and in this case, I thought
18 I should strictly adhere to the rules, but I will follow the Court's
19 suggestion, of course.
20 However --
21 JUDGE ORIE: May I just ask you, to what rule are you referring?
22 Is there any rule that says you should file a motion instead of using the
23 telephone? I mean, just --
24 MR. BRASHICH: No, there is no rule, Your Honour.
25 JUDGE ORIE: No, but you said you would strict -- you were
1 following --
2 MR. BRASHICH: Since there is no mention of telephones in the
3 rules, I'm following the rules.
4 JUDGE ORIE: Yes.
5 MR. BRASHICH: I understand Your Honour's suggestion, and we will
6 abide by it.
7 JUDGE ORIE: Yes.
8 MR. BRASHICH: And we have since abided by it. Rather than using
9 the telephone, which is sometimes difficult because of the time
10 difference, we have directed two letters to the Prosecution with regard to
11 additional Rule 68 material.
12 JUDGE ORIE: Yes.
13 MR. BRASHICH: So we are following the senior legal officer's
14 suggestion and will continue to do so.
15 The only other comment that I would make, which again is exactly
16 what Your Honour has said, that the obligation and the duty under Rule 68
17 is squarely on the Prosecution, and while we will remind the Prosecution
18 from time to time that we have not been receiving what we consider Rule 68
19 material, I hope that we will be able to obviate the necessity of making
21 JUDGE ORIE: Yes. Mr. Brashich, I mentioned the matter because I
22 saw in the transcript of the previous meeting with Mr. Harhoff that you
23 expressed some concern that you would always have to call before getting
24 disclosure of the exculpatory material. And of course it's clear between
25 the parties that this is not the case.
1 Then I'd like to move to our next subject. That is the submission
2 of lists by -- yes, Mr. Harmon.
3 MR. HARMON: I'm sorry, Judge Orie, but there are two additional
4 motions that were not mentioned that were filed by the Prosecutor. I can
5 just notify Your Honour what they are and --
6 JUDGE ORIE: Yes. If you give the dates as well, then I know how
7 much I'm behind.
8 MR. HARMON: I will be glad to. There is a motion -- and I have a
9 copy of it here. There is a motion filed on the 10th of February, 2003,
10 entitled Prosecution's Motion to Add Witness. And there is a motion of 14
11 November 2002, entitled Prosecution's Motion for Leave to Add Witness to
12 List of Witnesses. Those are the two additional motions.
13 MR. BRASHICH: Neither one of those motions, Your Honour, were
14 objected to or opposed by the Defence.
15 JUDGE ORIE: So they are uncontested, and they give us a good link
16 to our next subject, I would say, that is when the OTP -- when the Office
17 of the Prosecutor will submit lists of witnesses. It has been delayed
18 mainly due to the fact that, I think, the decision on the motion on
19 adjudicated facts had not been delivered at that time. That decision has
20 been delivered on the 28th of February, and I think that two weeks were
21 granted to file the new list.
22 Mr. Harmon.
23 MR. HARMON: Your Honour, the obligation under the order of the
24 Chamber was to provide the lists on Monday, the 15th. We have had a
25 difficulty which resulted in my filing a motion for a request for a brief
1 extension of time until the following Friday. I have set forth in my
2 application the reasons for that request. I'm happy to explain them to
3 Your Honour now, although they are in writing.
4 JUDGE ORIE: Let's first see. You have received that application,
5 Mr. Brashich?
6 MR. BRASHICH: No, Your Honour.
7 JUDGE ORIE: I haven't seen it either, so that might cause a
8 problem. If there are any copies available -- if you could just give a
9 brief explanation, then we'll read it in full detail.
10 MR. HARMON: Yes. It's a very brief motion. It was filed at
11 about noon today. It is a motion that requests an extension of time
12 because of staffing difficulties. The -- obviously, the analysis that is
13 required under the Trial Chamber's order is something that we embarked
14 upon immediately, but we are unable to complete because the lawyers, the
15 senior lawyers who were involved in that analysis and the senior lawyers
16 who will be involved in this trial, some are engaged in other commitments
17 that have taken them away. One is out of the country conducting a
18 case-related interview, and it is an interview that could not be
19 rescheduled. So the ability to properly analyse and consult all of the
20 issues that we are confronted with has been -- has been very slow and
22 Another lawyer, a senior lawyer on the case, is involved in a
23 sensitive interview as well that has been long scheduled. And so I find
24 myself in a position with my colleagues who have to make these critical
25 decisions, without a full team to do that, and I think it's important to
1 make this final decision -- this analysis and set of decisions to have the
2 full team present.
3 There's the motion and the response by us is due on Monday, and we
4 are requesting that we be granted four additional days when all of the
5 people will once again be reassembled to make that critical analysis.
6 JUDGE ORIE: Thank you, Mr. Harmon.
7 Mr. Brashich, on the basis of the oral explanation, could you take
8 a position or would you prefer, rather, to wait until --
9 MR. BRASHICH: I think I can take a position, Your Honour. What
10 I'm unclear is what is the exact date that the Krajisnik Defence will get
11 the list?
12 JUDGE ORIE: I understand that it would be the 19th. You're
13 asking for the remainder of next week.
14 MR. HARMON: That's correct.
15 JUDGE ORIE: Yes. That would be then the 19th of March, if I'm
16 not making any mistake. No. It would be the 20th, I think. Yes, I have
17 a calendar. I've been provided with calendar, and I think it would be the
18 20th --
19 MR. HARMON: The 21st.
20 JUDGE ORIE: -- but let me just see. Friday the 21st. I now
21 know, Mr. Harmon, what confused me. You said you would have time until
22 next Monday, the 15th, and next Monday is the 17th. So it would be the
23 21st of March.
24 MR. BRASHICH: The Krajisnik Defence is unhappy, but it
25 understands that both sides have difficulties, and I'm sure that the
1 Krajisnik Defence, during the course of this trial, will have the same
2 difficulties and will have to ask the indulgence of both the Court and
3 opposing counsel. So that is the position. I'm unhappy, but I'm going to
4 have to live with it.
5 The only other thing which I would like, Your Honour, with regard
6 to this list, we have orders by the prior Trial Chamber of, I won't say
7 preclusion, but orders limiting the scope of trial to that which had been
8 filed with the final OTP pre-trial brief.
9 What I would like to do, either make an oral motion or, if Your
10 Honour wishes me to make a written submission, that the list of witnesses
11 be deemed final and that only newly discovered witnesses have -- can leave
12 be sought from the Trial Chamber to add to the list. I will be happy to
13 make a motion in writing. I think the grounds for it are clear. We have
14 been in ongoing discovery for now three years, and I think that this list
15 should be final.
16 JUDGE ORIE: Mr. Harmon, would you have any -- but perhaps I would
17 invite you to make a written submission to that extent.
18 I gained the experience that what is -- what seems to be final or
19 what should be final not always really is final, but I certainly do agree
20 with you that such lists -- and therefore, I think it's good that the
21 analysis by the Prosecution is taken seriously -- that such lists should
22 not be subject to change every week, so they should at least have some
23 finality in it and not just the start of an ongoing debate on who should
24 be on the list of witnesses.
25 MR. BRASHICH: In New York, we have a final adjournment or a final
1 list, and then we a final final adjournment or list. Perhaps this should
2 be a final final list of witnesses.
3 JUDGE ORIE: Yes. It sounds familiar: The last question, the
4 very last question, the very very last question. Mr. Brashich, I think
5 the message is clear. If you want to make any written submission in this
6 respect, you're free to do so.
7 Then -- so the parties can expect that the motion will be granted
8 for time delay, for further delay for a couple of days, but it's not --
9 usually I take decisions only once I've seen the motions, so therefore
10 I'll first look at it, but if it doesn't show anything else that I've
11 heard until now, then the parties can expect the motion to be granted.
12 The next issue on the list would be whether the Office of the
13 Prosecutor has identified or wishes to identify any witnesses from whom a
14 deposition could be taken in order to economise on the time spent in
15 court. I would like to be informed about that.
16 MR. HARMON: Your Honour, it was our intention when we submitted
17 the list of final witnesses to include a column that would indicate
18 whether or not we thought it was appropriate to depose a particular
19 witness, so we agree in principle to the issue of depositions, and we will
20 identify when we submit our list of final viva voce witnesses which of
21 those witnesses we believe would be and could be deposed.
22 JUDGE ORIE: Yes. Thank you, Mr. Harmon. It will be clear to the
23 Prosecution that it's a category in the 101 witnesses and not something
24 additional to the 101.
25 MR. HARMON: I understand. And, Your Honour, when you mention the
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 categories of witnesses and the viva voce witnesses, I do have one
2 question. I can reserve that question until the end of these proceedings,
3 but it is a question relating to the numerical 101. I can raise it now if
4 Your Honour wishes.
5 JUDGE ORIE: Unless there's any objection, I would give you an
6 opportunity to raise it now because we're now dealing with witnesses.
7 MR. BRASHICH: No objection, Your Honour.
8 JUDGE ORIE: Yes.
9 MR. HARMON: This is -- this is the issue: The Defence has filed
10 a motion contesting the validity and the authentication of the intercepts.
11 Obviously if there is an evidentiary hearing on that and the Court
12 requires witnesses to be called, then we would call them in the
13 evidentiary hearing, and we assume that those witnesses would not have to
14 be recalled during the course of any trial and would not have to be added
15 onto the list of 101 witnesses allowed for the Prosecution to present
16 their case in chief.
17 JUDGE ORIE: Yes. If they only have to testify on the issue of
18 the intercept, then they should be examined as well, if needed, for the
19 case, and they would not be counted as extra witnesses. Is that what
20 you --
21 MR. HARMON: Yes. If we call these witnesses during an
22 evidentiary hearing and the matters of legality of the intercept are
23 decided, we see no reason why these witnesses have to be called once again
24 to lay a foundation for the intercepts in the case in chief.
25 JUDGE ORIE: Yes. I do understand the issue. I'm not going to
1 decide on it right now, but I'll have made a note of it.
2 Then the next question, not the least important -- yes, if there's
3 anything you'd like to --
4 MR. BRASHICH: No. I just wanted to state that we take no
5 position at this particular time with regard to that.
6 JUDGE ORIE: Yes. Then the next question to the Prosecution would
7 be: What time do you expect the presentation of the case would take, if
8 they can say something about that.
9 MR. HARMON: Again, Judge Orie, until we conclude our analysis of
10 the list of viva voce witnesses, we are not in a position to give you an
11 estimated length of the Prosecution's case. I think also there's an issue
12 that needs to be at least discussed, and that is 92 bis. I could make a
13 calculation on the estimate of the Prosecution's case, but the Defence has
14 a right to cross-examine 92 bis, or they assert they have a right to
15 cross-examine 92 bis witnesses, and how many of those 92 bis witnesses
16 need to be cross-examined, I'm not sure. I can give you an estimate on
17 the basis of no cross-examination and the evidence being accepted in toto,
18 or -- and then I get into the area where I'm not able to give you any
19 estimate whatsoever because I don't know how many of the 92 bis witnesses
20 will be cross-examined.
21 So the safest estimate I can give you is an estimate as to the
22 estimated length of time on the viva voce witnesses, and I assume the
23 presentation of the written evidence will be merely submitting the written
24 document into evidence without anything further. Under those
25 circumstances, that would take a minimal amount of time, but again if
1 there is cross-examination, and I know in some case there have been sort
2 of hybrid presentations of 92 bis evidence, that is an area where I'm
3 unable to make a calculation.
4 JUDGE ORIE: Yes. And on the basis of viva voce witnesses, what
5 would be your rough estimate?
6 MR. HARMON: Well, that answer, Judge Orie, is something I can
7 give you on the 21st.
8 JUDGE ORIE: Let's then, perhaps, wait until the 21st and not try
9 to elicit any vague guesses of you which you might have to correct then
11 There's only one comment I'd like to make. You said that Defence
12 is entitled to cross-examine 92 bis witnesses. I think it's subject to a
13 decision of the Chamber under Rule 92 bis, under (E).
14 MR. HARMON: That's what I intended to say.
15 JUDGE ORIE: Then I'd like to move to our next subject, and that
16 would be the rules of the road. A number of questions have been put to
17 me, questions contained in a memorandum of the 12th of February, 2003.
18 These are just questions. Would there be any need to make observations on
19 the questions, because -- is it enough for me to give you the views of the
20 Chamber or would you like to comment on one or more of these items?
21 MR. BRASHICH: Depends on the Court's ruling, Your Honour.
22 JUDGE ORIE: Yes. Well, that's -- yes. If there's anything you'd
23 like to bring to my attention before ruling, Mr. Brashich, you're free to
24 do so. Observations after the ruling would easily result in a debate on
25 the decision, and I'm not used to have lengthy debates of decisions taken.
1 MR. BRASHICH: Well, Your Honour, I've been following the
2 jurisprudence and the holdings of other Chambers, and I have noted that
3 one of the problems which I see is that during objections, much argument
4 is had with the witness present. It would be the Krajisnik Defence
5 position that should argument on an objection be allowed, then the witness
6 should be excluded. And it's the only point that I would have to observe
7 with regard to point number 1.
8 With regard to point number 2, I would propose and the Krajisnik
9 Defence's position would be that the ruling be made at the time of the
11 With regard to documents and proofs which have not yet been
12 introduced into evidence, I think that is self-evident. You can't use
13 documents, things, videotapes, if they have not been formally introduced
14 into evidence and tested. That's at point 5, and 3 are more or less
15 identical in concept.
16 And the last thing, Your Honour: Again in reading transcripts of
17 other trials or hearings before the various Chambers, the concept of an
18 offer of proof is not covered by the rules, and we would like to have some
19 guidance as to should the offer of proof be made orally or should it be
20 done in writing? And of course if the offer of proof is made, how can it
21 be best preserved for appeal?
22 JUDGE ORIE: Yes. Thank you. Mr. Harmon, is there any -- does
23 the Prosecution have any views on what the answers should be to those
25 MR. HARMON: Your Honour, I think in respect of the second item,
1 the suggestion that the witness be excluded during the objection is one
2 that I think depends on the nature of the objection.
3 In respect of the use of documents --
4 JUDGE ORIE: May I just ask you, are you referring to item 1 or
5 item 2, because item 2 is objections will be ruled on immediately whenever
6 possible; where there is presence of the witness seems to be covered by
7 item 1.
8 MR. HARMON: I was referring to what Mr. Brashich had said --
9 JUDGE ORIE: I think that was about item 1, that I understand you
10 well, may decide to bring the witness out of the courtroom when the
11 objection is discussed. That's the issue.
12 MR. HARMON: And I think that depends on the nature of the
13 discussion of the objection.
14 The use of documents and proofs not yet introduced into evidence,
15 I think that documents have to be used and proofs proffered to be used
16 before they are formally admitted into evidence. You have to be able to
17 show the witness the items he's being examined about, and then thereafter
18 you normally make an application for its admission. That is my comment in
19 respect of item number 3.
20 In respect of item number 9, the Prosecution's order of proof and
21 advance notice of upcoming witnesses, the Prosecutor's office is willing
22 to abide by whatever order this Chamber makes. Our request is that the
23 equal order be applied to the Defence. So if we are required to turn over
24 a name of a witness, for example, seven days in advance or ten days in
25 advance, we would request that the Chamber make a similar order in
1 identical terms when the Defence starts calling its witnesses.
2 Those are the comments I have on the ten items that are before the
3 Chamber in this letter.
4 JUDGE ORIE: Yes. Thank you. Mr. Brashich.
5 MR. BRASHICH: Your Honour, I understand that it will be the
6 circumstances of the objection that will guide the Trial Chamber whether
7 to exclude the witness during argument. But as a general rule, it has
8 been my experience that counsel should object and, just with one word,
9 explain the objection; relevance, et cetera, et cetera. If anything goes
10 further than that, then I would suggest that the Court should make a --
11 not a hard and fast rule, but more or less put counsel on notice that
12 argument with the witness in the box should not be allowed.
13 With regard to abiding by the same advance notice of witnesses,
14 the Krajisnik Defence has no problem whatsoever. I had forgotten that
15 there was a second page to my fax, so I turn it over and I find that there
16 were three other points on that second page.
17 JUDGE ORIE: I have four, 7 to 10 included.
18 MR. BRASHICH: Yes. Four, and one which I have already addressed.
19 I really don't have any further comments other than those which I've
21 The only other thing which I would like to reply to Mr. Harmon is
22 I was not envisaging showing the witness a document or a thing and then
23 introducing it into evidence. What I was envisaging was having an opening
24 statement in which audiovisual material or other material which is not in
25 evidence is used during opening statements or is being discussed in the
1 course of the trial before it has been properly introduced through a
3 JUDGE ORIE: Yes. That's how I understood your number 10,
4 exclusion of opinions -- no, no, no, it's not.
5 Well, I understood you well. Then having heard -- I'll give you
6 the provisional rulings on it. We have to deal with the matter. It has
7 only been briefly introduced, briefly discussed, so I will give you the
8 decisions. And if there would be any need, I hope there will not, to
9 further refine any of these rulings, we'll hear from you and...
10 The first thing about objections during the examination of
11 witnesses. First of all, I'd like to stress that a flow of information
12 not interrupted by objections is to be preferred. Many objections,
13 especially in the common law traditions, serve to avoid that a jury hears
14 something, sees something that it should not see or it should not hear.
15 We are in a mixed system. That means that the Chamber is well
16 aware of all the traps that might exist during the examination of a
17 witness. I mean, a question that's leading, once it has been pronounced,
18 of course might have influenced already a witness. If a question asks for
19 hearsay, of course the Chamber will be aware that it does, if not yet from
20 the question, then at least from the answer. So there would be less need
21 to object since the -- since the functioning of the law of evidence is
22 different in a bench trial compared to a jury trial. So the parties are
23 invited to be very restrictive in objecting.
24 When objections are made and are necessary, the Chamber would
25 expect the parties to express these in one or just a couple of words, just
1 as, "calls for speculation," or "relevance," or whatever. If there would
2 be need for further argument, then that should, as a rule, be done in the
3 absence of the witness. But I again repeat, I have the experience -- I
4 had the experience recently that the witness was travelling in and out of
5 the courtroom too much, and that, of course, undermines what the main
6 purpose of what examining a witness is. That is, not to discuss
7 procedural incidents, but it is to hear from the witness what he can
8 answer to questions put to him.
9 So if this may serve as a guidance to the parties. Be
10 restrictive, be short, and if really necessary, we'll ask the witness to
11 leave the courtroom so that any argument can be exchanged in respect of
12 the objection raised.
13 Second issue is objections will be ruled on immediately whenever
14 possible. It might not always be possible, but whenever possible, a
15 ruling will follow immediately.
16 Then the display of proof that has not yet been introduced into
17 evidence. There might be some confusion as to what exactly was asked, but
18 as far as the opening statement is concerned, the parties are required to
19 inform the other party about the material they intend to show, such as
20 video material, during the opening statement. If there would be
21 objections against the use of that material, that objection should be
22 raised prior to the opening statements and, if necessary, there could be a
23 hearing to suppress such material from the opening statement in order not
24 to contaminate the opening statement. On the other hand, an opening
25 statement is not an occasion at which you should object against the
1 presentation of material. So it should be presented smoothly. But if
2 there is any serious reason to object against the materials shown, it can
3 be done previously. And therefore, it's necessary that the parties inform
4 each other, disclose what material will be used during the opening
6 Then as far as the other evidence to be introduced is concerned,
7 the Chamber intends to ask from the parties to exchange well in advance,
8 and two weeks is in our mind, the exact sequence of calling these
9 witnesses, the order of calling these witnesses, and at the same time
10 indicate what exhibits will be used during the testimony of that witness.
11 The Chamber will provide you with a format on how to exchange this
12 information, and the Chamber would like to receive copies of this exchange
13 of information by the parties. That would also enable the parties to
14 think over well in advance to what exhibits objections should be raised.
15 That can then be done if that exhibit is introduced.
16 If there is no objection against a certain document or a certain
17 object, the Chamber would prefer to deal with the admission into evidence
18 at the end of the testimony of that witness. So that is we are not going
19 to give a decision on the admission into evidence, but it is understood
20 that if there is no objection, that at the very end of the testimony of
21 that witness, perhaps even after he has left the courtroom, we'll ask the
22 registry to guide us through the list of all documents that have been used
23 during the testimony, and they will then all be admitted into evidence or
24 not, but that's in order to not interrupt the testimony and again and
25 again by decisions, this is admitted into evidence. This requires the
1 parties to make clear what -- not to the Court mainly but especially to
2 the other party what material it intends to use and introduce through that
3 witness. The format of such lists will be provided to you by the senior
4 legal officer, Mr. Harhoff.
5 Standards of authentication was one of the questions. The
6 Tribunal has not a specific standard of authentication. It's not required
7 from the parties, but the introduction of each document to pay specific
8 attention to the authentication. Authentication becomes an issue if the
9 other party is objecting to the authenticity. And since you are aware two
10 weeks in advance what documents presumably will be used or introduced
11 through that witness, you always can raise the issue of authenticity, but
12 you should give -- you should show good reasons to object against the
13 authenticity of a document. So if a challenge is made, good reason should
14 be shown immediately.
15 Offers of proof. The question you asked mainly was whether it
16 should be done in writing or orally. The answer is that it should be done
17 in writing. I noticed that in your questions already, Mr. Brashich, and
18 in your reference to what you might be used to, I find a lot of common law
19 terminology. For example, "offer of proof" is, I think, something well
20 known in the common law law of evidence but might not be that familiar to
21 Judges that come from a civil law background. So this Chamber would very
22 much appreciate if the parties would express themselves not primarily in
23 the common law terminology which is linked very much to procedural systems
24 but to briefly explain what it is about. It can be expected that the
25 Trial Chamber, that the entire Trial Chamber, will have a civil law
1 background. So there might be some need to avoid whatever
3 The next question was what to do if lead counsel is unable to
4 attend, if -- whether there would be any scheduling issues to allow the
5 meeting of other obligations of trial counsel.
6 Well, first of all, the Chamber expects that the trial counsel are
7 dedicated full time to the case so that it would hardly happen, but of
8 course one could imagine circumstances under which counsel would have to
9 meet obligations elsewhere. Then co-counsel is expected to take over.
10 And only in very, very exceptional circumstances the Chamber will consider
11 to adjourn for the reason that both counsel have to meet obligations
12 elsewhere. That will really be a rare exception. So the rule is
13 co-counsel takes over.
14 One question was about motions to strike unresponsive answers. I
15 would say this is also an example very much of the -- outside the common
16 law tradition, which might not be that necessary in a Bench trial where
17 the Bench has heard it. So therefore, the Chamber considers such motions
18 not to be needed.
19 Number 9 of your list is the Prosecution's order of proof and
20 advance notice of upcoming witnesses. I think I dealt with that. The
21 same procedure applies to both parties.
22 Then finally we have the exclusion of opinion statements from
23 audiovisual material. I took it that you meant to say that whether -- if
24 there's any audiovisual material and we can comment by a journalist - it's
25 number 10 - that we would be confronted with comments or opinions of
1 journalists or whomever or those persons interviewed. Is that what you
2 are referring to or --
3 MR. BRASHICH: Yes, Your Honour.
4 JUDGE ORIE: Yes. To the extent possible, the opinion should be
5 not part of audiovisual material. On the other hand, if a journalist
6 would say a few words on what happens which clarifies the issue, then of
7 course there should be no specific problem. But here again, if the
8 parties would exchange their lists of material that has already been
9 disclosed two weeks in advance, you could always check in the transcripts
10 of the audiovisual material whether there is any reason, for example, to
11 look at this material without sound, which sometimes solves the problem.
12 But there again, I expect the parties to review the material in advance
13 and to come up with objections as to listening also to opinions contained
14 in that material prior to it being shown to a witness, especially if this
15 could influence the witness, and a decision would then be taken on what
16 exactly would appear as opinion in such material.
17 This is as far as the rules of the road is concerned, what I'd
18 like to tell you, and I think it covers most if not all of your questions,
19 Mr. Brashich.
20 MR. BRASHICH: Thank you, Your Honour.
21 JUDGE ORIE: Then the next point on the agenda is -- was a
22 question mark, trial management seminar. If the Defence would be
23 interested, the Chamber will offer a seminar to introduce the Defence to
24 especially the services of the Tribunal. For example, to yet acquainted
25 with some of the registry, people from security, people from OLAD, so that
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 they can explain how they work so you can be better aware of what to
2 expect and what not to expect from those officers of the Tribunal. An
3 explanation on the court reporting, perhaps training in the use of the
4 LiveNote programme which appears on your laptop. And I can tell you, I
5 could not do without this LiveNote programme.
6 So therefore, if the Defence is interested to have such a -- such
7 a trial management seminar, I'd rather say meet the people of the Tribunal
8 and see what they are doing and get acquainted with that, it's an offer,
9 it's a standing offer.
10 MR. BRASHICH: Any help is appreciated by the Krajisnik Defence,
11 and I would appreciate being given such a seminar for my Defence team. It
12 can only help.
13 JUDGE ORIE: Yes. I'll ask that such a seminar will be prepared.
14 I take it that the Office of the Prosecution -- I know there is
15 equality of arms, but they might be acquainted already with the services
16 of the Tribunal.
17 MR. HARMON: We are. Thank you.
18 JUDGE ORIE: Yes. The next issue would be, and that,
19 Mr. Krajisnik, would be more directly related to you, because until now we
20 have -- you may -- you may be seated. You don't have to stand always if I
21 address you.
22 Until now, we have dealt with all kind of procedural issues, and
23 one would easily forget that a trial is not just a matter of procedural
24 technicalities but is about a person who stands trial in this Tribunal.
25 So therefore, I'd like now to focus my attention on you personally and
1 would like to know whether there's anything in respect of your conditions
2 of detention, your health, or whatever you would like to bring to my
3 attention at this very moment.
4 THE ACCUSED: [Interpretation] First of all, I would like to thank
5 you for providing me with this opportunity, Mr. President, to address you.
6 I'll be very brief, with your permission, but there are a few
7 things that I would like to -- a few issues I would like to raise that
8 might help you, this Trial Chamber, the Prosecution, but above all,
10 First of all, I would like to ask you and the Prosecution -- well,
11 there are two issues that concern, that are related to the Prosecution.
12 One of the issues concerns witnesses who are in the field and who are
13 visited by our investigators. They are under psychological pressure.
14 They think that they might be accused by the Prosecutors, and they're very
15 reluctant to provide our Defence - my Defence - statements. And for this
16 reason I would like to ask the Prosecution whether they could make a
17 statement stating that witnesses have the right and perhaps even the moral
18 duty, if not the legal obligation, to provide the Defence with statements
19 as well as the Prosecution.
20 One example, Your Honour: If a witness had been visited and said
21 that witnesses [as interpreted] came to see him, that he was ordered that
22 he shouldn't give anyone else a statement and that he was protected by the
23 Prosecution, I have his name and I have the statement of our investigator.
24 And the second thing that concerns the Prosecution, I think that
25 the porte-parole of the Prosecution quite by mistake, a few days ago,
1 watched the Belgrade television and said that my Defence requested that
2 the hearing should be postponed on three occasions because this had to do
3 with the length of my detention.
4 The second thing I want to ask you about is that I submitted a
5 request to the Trial Chamber that was -- preceded you, and it had to do
6 with the privileged telephone link that each accused has, a telephone link
7 to co-counsel and to lead counsel. I have no objections to make, no
8 criticisms of my counsel to make, but they are in America, and when I am
9 asleep -- when they are asleep, I'm free. And when they are working,
10 naturally it's night over here. So I have few possibilities to contact my
11 lawyer in America. It's easier for me to contact co-counsel. And after
12 three years, I don't know which address this concerns, I was permitted to
13 speak to co-counsel, to contact my co-counsel. But today, I have been
14 informed that this decision has been revoked.
15 It is very important for me to be able to speak to people who are
16 in Bosnia-Herzegovina, and in Serbia and in Republika Srpska. It's
17 important for me to be able to give them suggestions about this problem so
18 as to be able to prepare my defence as best as possible.
19 What I would also like to add is -- well, the lawyer's here, but
20 very often documents which are sent by fax, by some mistake they don't get
21 to me, they don't reach me, and they're very important. And in that
22 regard, I would like to thank you. In a certain sense, I am more assured
23 that the proceedings will commence, because I can see a permanent
24 Presiding Judge, because up until now we have only had a provisional Trial
1 And finally, Your Honour, I'm an innocent man. I'm not guilty,
2 and this Trial Chamber will establish that this is the case and I'm just
3 asking you to help me have a good and fair defence and to help me prove
4 relevant facts.
5 I would like to ask you, Mr. President. You talked about
6 intercepted conversations today. That's called phone tapping, illegal
7 phone tapping in my country, and I'm telling you, this is completely
8 illegal, which is why I'm asking you to organise an investigation and to
9 bring the persons concerned to show that this was illegally carried out.
10 They were listening in to the president of the parliament, the Prime
11 Minister of the parliament before the crisis commenced.
12 I thank you very much, and I hope that this process, these
13 proceedings will be fair and that I will go away from here as a free man.
14 Thank you.
15 JUDGE ORIE: Thank you. The observations you made were mainly in
16 respect of the proceedings rather than your personal situation. Is there
17 anything else you would like to add in respect of your health situation or
18 whatever of a personal nature rather than related to the proceedings?
19 THE ACCUSED: [Interpretation] Your Honour, I took advantage of
20 this opportunity since I am a former politician. There are items that
21 concern my health and other items too, so I suggested certain items. As
22 far as my health is concerned, I'm healthy now and I can only say the best
23 about Mr. McFadden and his employees. I have no objections to make at
24 all. This is why I'm asking you to help me with regard to these other
25 issues that are of importance to me. Perhaps even more important than my
1 health. Thank you very much.
2 JUDGE ORIE: Yes. Don't underestimate the importance of your
3 health, Mr. Krajisnik, but I will briefly respond to some of your
5 First of all about the witnesses, the witnesses that should be
6 free to come and testify before this Court. If there would be any witness
7 that would be afraid of being accused by the Prosecution -- being accused
8 is one thing, but even being prosecuted, that would even be another thing
9 -- there are technical rules in respect of applications for safe conduct
10 for witnesses. So if necessary, Defence counsel will know how to apply
11 for that.
12 You raised another issue. I would not like to respond to that
13 immediately, but that seems to relate to a matter which I heard some
14 British and some American lawyers debating about for quite some time: Is
15 there any property in a witness once a witness has been approached by one
16 of the parties, to what extent the other party should stay away from that
17 witness. I don't know whether you refer to that when you say protected or
18 stay away, but if the parties would not agree on what would be allowed in
19 this respect, I'd like to be informed so that we -- that I at least would
20 know that the parties have a different view on the matter. So therefore,
21 the parties are invited to discuss the matter among themselves and inform
22 the Chamber if there's any disagreement in this respect.
23 Then the second issue you raised is about communication with
24 counsel. Communication with counsel, privileged - that means confidential
25 - should be possible in order to enable you to prepare for your defence.
1 I'm not saying whether at all times of the day you would have a privileged
2 telephone always available, but as a basic rule, such communication,
3 whether it's in written form or it is by telephone, should be made
4 available to you.
5 You also gave your view on the illegality of the interception of
6 communication that the Prosecution intends to present as evidence. A
7 motion is pending on the issue, and proper attention will be paid to that.
8 Finally, you asked these proceedings to be fair. The Trial
9 Chamber will guarantee the fairness of these proceedings. That is the
10 task of the Trial Chamber under the Statute of this Tribunal, and the
11 Trial Chamber takes this task very seriously.
12 Is there any other issue to be raised at this very moment?
13 MR. HARMON: There is nothing on behalf of the Prosecutor.
14 JUDGE ORIE: In order to demonstrate to you how seriously these
15 matters we take, the registrar informs me that she already tried to
16 contact colleagues on a decision on privileged telephone conversation with
17 co-counsel, but she has not yet received an answer, but this just
18 demonstrates how seriously these matters are taken.
19 You have no further matters to be raised, Mr. Brashich?
20 MR. BRASHICH: Nothing further, Your Honour.
21 JUDGE ORIE: Thank you very much.
22 Then finally, although it's not very usual that a Judge expresses
23 himself on what happens in the world, I would like to inform you that I
24 was shocked by what happened today to Mr. Djindjic.
25 If there are no further matters to be discussed, we'll adjourn,
1 presumably until the next extra Pre-Trial Conference, but the parties will
2 be informed about that.
3 --- Whereupon the Status Conference adjourned
4 at 4.15 p.m.