1 Tuesday, 13 May 2003
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 4.02 p.m.
6 JUDGE ORIE: Madam Registrar, would you please call the case.
7 THE REGISTRAR: Case Number IT-00-39-PT, the Prosecutor versus
8 Momcilo Krajisnik.
9 JUDGE ORIE: Thank you, Madam Registrar.
10 Good afternoon to everyone. May I first have the appearances.
11 For the Prosecution.
12 MR. HARMON: Good afternoon, Mr. President, good afternoon,
13 Your Honours, colleagues from the Defence. My name is Mark Harmon. I
14 represent the Prosecutors' office this afternoon. Appearing with me to my
15 right, Mr. Alan Tieger, to his right, Mr. Thomas Hannis. And to my left,
16 Ms. Carmela Annink-Javier, who is the case manager.
17 JUDGE ORIE: Thank you very much, Mr. Harmon. And for the
19 MR. NESKOVIC: [Interpretation] Good afternoon, Your Honours. My
20 name is Goran Neskovic, counsel. With me is Deyan Brashich.
21 JUDGE ORIE: Thank you, Mr. Neskovic. Before we start, I would
22 like to hear from the Defence who is this afternoon representing the
23 defendant. Is it you, Mr. Neskovic, as co-counsel, or Mr. Brashich?
24 MR. BRASHICH: Your Honour, I am appearing here only as a
25 temporary legal consultant.
1 JUDGE ORIE: Yes. What about your duties under the rules? I
2 mean, if you are withdrawn, you are not supposed to --
3 MR. BRASHICH: Sorry, Your Honour, I didn't hear you.
4 JUDGE ORIE: If you have been withdrawn as lead counsel, that
5 does not immediately end your duties as counsel. Isn't that true? Have
6 you oriented yourself to what your duties are at this moment?
7 MR. BRASHICH: Yes, I have, Your Honour. And there is a decision
8 dated May 2nd, 2003, by the Registrar which outlines my continuing duties
9 to transfer the case to a lead counsel and to facilitate such transfer,
10 which I'm fully prepared to do. I do not believe that I can speak on
11 behalf of Mr. Krajisnik. My role, I think, is limited by that May 2nd
12 order of the registry.
13 JUDGE ORIE: Yes, you are withdrawn as lead counsel. At the same
14 time, Article 20 of the -- are you aware of what Article 20 of the
15 directive of assignment of Defence counsel instructs you to do?
16 MR. BRASHICH: I have read it, Your Honour, but as I stand here
17 and now, I cannot repeat it verbatim.
18 JUDGE ORIE: Yes. What would it be, not verbatim? What would be
19 your duty if --
20 MR. BRASHICH: It would be my duty to assist in the transfer of
21 materials, work product, and aid the incoming counsel.
22 JUDGE ORIE: Yes. Article 20 says that "when the assignment of
23 counsel is withdrawn, that counsel assigned may not withdraw from acting
24 until either a replacement counsel has been provided by the tribunal or
25 by the suspect or the accused or the suspect or accused has declared his
1 intention in writing to conduct his own Defence." And paragraph (b)
2 reads that "the withdrawn counsel may in the interests of justice, may
3 continue to represent the suspects or the accused for a period of not
4 exceeding 30 days after the date on which the replacement is assigned."
5 So it's not -- but I do understand that you've chosen that Mr. Neskovic
6 today will act as counsel.
7 MR. BRASHICH: The reason I have done so, Your Honour, is that
8 there might be an appearance that I would be acting in conflict of a
9 court of competent jurisdiction. It is for that reason that that matter
10 will be cleared up on the 15th of May.
11 JUDGE ORIE: Yes. Let me just --
12 MR. BRASHICH: Should this Court, however, order me on the
13 transcript to continue representing the interests of Mr. Krajisnik, I'm
14 fully -- for this period of 30 days, I am fully prepared to do so if this
15 Court will so order.
16 JUDGE ORIE: No, I'm not asking you, but I'm just trying to find
17 out whether the Defence has taken its decision in full knowledge of the
18 applicable law in this respect.
19 Mr. Neskovic, I have been informed that Mr. Krajisnik would
20 prefer this Status Conference to be in closed session. Is that correct
22 MR. NESKOVIC: [Interpretation] That's correct, Your Honour.
23 Mr. Krajisnik just informed me about this a moment ago.
24 JUDGE ORIE: Yes. You know that usually, the public character of
25 our hearings is considered to be of great importance. Could you or could
1 Mr. Krajisnik give us the specific reasons why he would prefer to have
2 this matter - we don't even know what the matter is - but whether the
3 matter should be dealt with in closed session.
4 MR. NESKOVIC: [Interpretation] Mr. Krajisnik has asked to take
5 the floor and explain why he wishes a closed session, after which he
6 would explain his opinion to Their Honours.
7 JUDGE ORIE: Yes. I think private session would do, but I'm
8 looking to you, Madam Registrar. Private session means that we are not
9 pulling down all the curtains, but that whatever Mr. Krajisnik tells us
10 will not be made known to the public.
11 We'll then turn into private session.
12 [Private session]
12 Page 125 – redacted – private session.
21 [Open session]
22 JUDGE ORIE: Yes. We are in open session again. Before we start
23 discussing the substance of what is on our desk, I'd first like since you
24 see new faces on the Bench, I'd first like to introduce to the Defence and
25 to the Prosecution, to you, Mr. Krajisnik, the Judges. This is the first
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13 English transcripts.
1 time that this Chamber is sitting in the composition as it is assigned to
2 hear your case. That means, to the left of me is Judge Martin Canivell
3 who has been recently appointed and recently assigned to the case. And to
4 my right is Judge El Mahdi. I think I introduced myself already in the
5 previous hearing. My name is Judge Orie, and I'll preside the case.
6 Let's first spend a moment on the reason why we have a Status
7 Conference because there was a Pre-Trial Conference scheduled for Friday,
8 the 9th of May. It had to be cancelled, just as the commencement of the
9 trial which was scheduled for the 12th of May also had to be cancelled.
10 Reason for cancelling both the Pre-Trial Conference and the commencement
11 of the trial is the unavailability of lead counsel, Mr. Brashich. And
12 the reason of his unavailability is that Mr. Brashich was by disciplinary
13 decision suspended to practice by a court in New York. That therefore,
14 he could not continue to act as counsel before this Tribunal. This has
15 become known only recently within the Tribunal; and therefore, we were a
16 bit surprised by it.
17 The reason why you, Mr. Brashich, cannot continue to act as lead
18 counsel is that you do not fulfill the requirements any more, the
19 requirements of Article 14 of the directive on the assignment of counsel.
20 The Registrar is under Rule 19(C) under an obligation to withdraw your
21 assignment. That reads the Registrar shall withdraw, not may, but shall
22 withdraw the assignment of counsel where counsel no longer satisfies the
23 requirements of Article 14 (A), and the requirements of Article 14 (A) are
24 that the counsel is admitted to the practice of a law in a state and that
25 he has not been found guilty in relevant disciplinary proceedings against
1 him where he is admitted to the practice of law. So that has changed.
2 We'll not spend much time on it, but may I ask you, Mr. Brashich, when was
3 this decision taken that you were suspended?
4 MR. BRASHICH: It was taken as of April 1. I received it on
5 April 6th. I notified the Court, this Tribunal, on the 10th of April.
6 JUDGE ORIE: Yes. Did you send it by telefax or --
7 MR. BRASHICH: I sent it both by telefax, and I thought without
8 enclosures. I then Federal Expressed the same letter, and each and every
9 relevant decision, some of which made recommendations that the proceedings
10 against me be dismissed, and another decision that recommended that I be
12 JUDGE ORIE: Yes.
13 Mr. Neskovic, when did you become aware of this situation?
14 MR. NESKOVIC: [Interpretation] I became aware of that situation
15 on the 29th of April when I was informed by Mr. Brashich about this in a
16 telephone conversation, except that that decision hadn't come into force
17 because Mr. Brashich appealed that decision. But officially, it was
18 only last week - I can't tell you the exact date - but that's when I was
19 officially informed that Mr. Brashich had been suspended. And I found
20 out about this Status Conference on Friday.
21 JUDGE ORIE: Mr. Brashich, why didn't you send a copy of the
22 letter that you sent to many people to co-counsel?
23 MR. BRASHICH: I have no answer for that, Your Honour. I made a
24 copy of it available to Mr. Kostic the same day that I made the letter
25 available to the Tribunal. I also sent a copy of the letter and
1 enclosures, to my client, again by Federal Express --
2 JUDGE ORIE: Yes, we have listed on the bottom of your letter to
3 whom you sent copies. But my question was --
4 MR. BRASHICH: Frankly, I was taken aback when I received the
5 order. I did not expect it. And if I had not sent it to Mr. Neskovic,
6 that was my fault, and it was an oversight on my part.
7 JUDGE ORIE: Yes. Thank you for your answer, Mr. Brashich.
8 Mr. Neskovic, do I understand well that you're supposed to not be
9 present during the trial? Is that what you expected?
10 MR. NESKOVIC: [Interpretation] Well, in fact, in an agreement
11 that we had among the Defence, what we had planned was that I would be a
12 man in the field because I was appointed as a co-counsel two months ago.
13 And before that, I was a legal advisor. And I exclusively worked on the
14 matters preparing the Defence so there would be that stage of the trial
15 when the Defence would present its case. As far as the initial stage
16 when the Prosecution is presenting its case, I did not deal with these
17 matters, partly because I did not have the documents. And according to
18 our internal agreement, it was Mr. Brashich and Mr. Kostic who received
19 these documents, and they prepared the concept. But my task, according
20 to the instructions I received from the lawyers, is that in the field, in
21 Bosnia-Herzegovina, I would be gathering evidence we would be needing
22 when the Defence starts presenting its case.
23 JUDGE ORIE: Yes. Thank you. You said the agreement. Was this
24 a written agreement between you or has it been put down in
25 correspondence, or was it just an oral agreement on who would do what?
1 MR. NESKOVIC: [Interpretation] That was a verbal agreement among
2 us. And of course, we agreed with our client.
3 JUDGE ORIE: Yes.
4 MR. NESKOVIC: [Interpretation] I'm sorry. It's a very complex
5 case, Your Honour, and it's not just a small local case. This is a case
6 involving 34 municipalities. That is an entire state. It goes from
7 command responsibility of the army to police, legal authorities. So
8 really, one man has to coordinate all this work in the field so that we
9 can achieve maximum effect.
10 JUDGE ORIE: Yes.
11 Mr. Krajisnik, I want to stress that you are not responsible for
12 the conduct of lead counsel in this case. I hope that you'll accept from
13 me that we are here to see how we can solve the problems, the problems
14 that you are confronted with, but for which you are not to be blamed
15 because it's not your fault, it's not your mistake. But nevertheless,
16 you're confronted with the consequences of it.
17 It seems that the Defence has to be reorganised one way or the
18 other. And that's the main reason why we're here, first to establish
19 what the reason is that your trial couldn't start, and now to see how we
20 can solve the problems in order that your trial will start as soon as
21 possible. I have a few questions. You don't have to stand up all the
22 time, because if I would speak longer to you, then please sit down if you
23 prefer to do so.
24 THE ACCUSED: [Interpretation] Thank you.
25 JUDGE ORIE: Let me first ask whether any of the other members of
1 the Defence team, as it was constituted until now, has any similar
2 problems? Mr. Neskovic, have you ever had any disciplinary problems in
3 your own system or are you currently facing any similar problems?
4 MR. NESKOVIC: [Interpretation] No, Your Honour. Never, I have
5 never had any disciplinary proceedings issued against me, not just within
6 a bar association or any time in my life. This is a problem which has
7 obviously surprised me as well.
8 JUDGE ORIE: Yes. Of course I'm not suggesting that you ever
9 had, but you may understand that the Tribunal might be a bit more
10 concerned about disciplinary proceedings in the past or even in the
12 Mr. Brashich, are you aware of any similar problems as far as
13 Mr. Kostic is concerned, who...?
14 MR. BRASHICH: I have spoken to Mr. Kostic when this came out,
15 and I don't believe that he has ever had any admonition, censure, or
16 anything similar.
17 JUDGE ORIE: Did you ask him specifically?
18 MR. BRASHICH: Yes, Your Honour, I spoke to him quite extensively
19 about it, yes.
20 JUDGE ORIE: Yes.
21 MR. BRASHICH: I believe Mr. Neskovic has something to add, Your
23 JUDGE ORIE: Yes, Mr. Neskovic.
24 MR. NESKOVIC: [Interpretation] About half an hour ago, I spoke to
25 Mr. Kostic. He phoned me in my office. He apologised for not being
1 present at this Status Conference. It's because a relative of his was
2 seriously ill. And he said that he was prepared to continue working here.
3 JUDGE ORIE: Yes. Mr. Neskovic, to what extent would you please
4 available to continue to work either here in The Hague or in the field,
5 as you call it?
6 MR. NESKOVIC: [Interpretation] To be frank, I would be more
7 prepared, more willing to work in the field, for two reasons: First of
8 all, I'm very well acquainted with the situation in Bosnia and
9 Herzegovina. I know the people there. I know what the possibilities are
10 for finding evidence. But given that I'm not familiar with the
11 Anglo-Saxon system, it might be more difficult for me to be present here.
12 Up until now, I have been gathering this evidence, but someone who knows
13 the Anglo-Saxon system would know when, how, and in what manner to use
14 such evidence. But I by no means refuse to work in this Tribunal, nor do
15 I refuse to work for Mr. Krajisnik as I have been working for him for
16 three years now.
17 JUDGE ORIE: Would you be available, let's say, temporarily to
18 act as counsel here in The Hague? That means, for example, if you say I
19 prefer to work in the field, that until a new lead counsel has been
20 assigned, that you would be available, well, let's say, up until August?
21 Would that be something you would consider?
22 MR. NESKOVIC: [Interpretation] It's difficult for me to express a
23 position on that matter right now. It depends on the phase of the
24 proceedings in August. You know, if it's a matter of cross-examining
25 witnesses, that would be a little more difficult, and I don't have the
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13 English transcripts.
1 documents, nor do I have the conception of this case that Mr. Brashich
2 has. So I ought to think about this before I inform the Trial Chamber of
3 my decision. It's a rather sudden matter for me. I'm slightly surprised
4 by this matter.
5 JUDGE ORIE: Yes. Would you include in your consideration as
6 well that Mr. Brashich has been assigned as consultant in order to make
7 available his knowledge of the case to whomever would succeed him.
8 Mr. Krajisnik, I noticed that you'd like to say something.
9 THE ACCUSED: [Interpretation] I would like to be of assistance,
10 if I may, to assist you so that you can assist me.
11 JUDGE ORIE: Yes.
12 THE ACCUSED: [Interpretation] Your Honours, I wouldn't want
13 Mr. Kostic or Mr. Neskovic to take over this case at this moment because
14 I don't know how familiar they are with this case. And this is why I'm
15 asking you, the Registrar, has made it possible for all the members of
16 the Defence team apart from Mr. Kostic for them to be with me tomorrow.
17 And then after we have discussed this, I'd be glad to have one of them as
18 lead counsel. But at the moment, I'm prepared to take a decision to find
19 a new lawyer. I was thinking of it -- I thought that this lawyer could
20 be someone like Mr. Brashich. I'm sorry if I'm speaking openly about
21 this matter, but at the moment I have to speak openly about it.
22 JUDGE ORIE: Yes, that's no problem. It's not my suggestion that
23 you had invited to give your final view by today because I do understand
24 that it needs more for you to make up your mind as to what direction we
25 would go. But I'm just trying to find out what would be possibilities
1 and opportunities as far as the availability is concerned of the present
2 members of your Defence team.
3 As far as the -- well, the matter of being acquainted with the
4 case is concerned, the only thing I could tell you is that Mr. Kostic
5 until now spent approximately 2.400 hours on the case, so one would expect
6 him to know something about the case. And as far as Mr. Neskovic is
7 concerned, that would be 4.683 hours. So one would also expect that he
8 at least has a global knowledge of what the case is about.
9 My next question would be to you, Mr. Neskovic, or to you,
10 Mr. Brashich: You have recently spoken with Mr. Kostic. What would be
11 his availability?
12 MR. BRASHICH: Your Honour, we were prepared to try this case, as
13 Mr. Neskovic had stated, we had divided the responsibilities of the
14 Defence. Mr. Neskovic was -- his roll was to in the pre-trial stage
15 prepare for the actual Defence, and also in the pre-trial stage to help
16 with regard to meeting some of the issues --
17 JUDGE ORIE: Yes, but my question was whether Mr. Kostic was
19 MR. BRASHICH: He was available, Your Honour, as I had said, that
20 we would divide the labour on the Prosecution's case between himself and
21 myself, on that understanding.
22 JUDGE ORIE: And is that unchanged? I mean, of course, the
23 situation has changed, but --
24 MR. BRASHICH: With regard to myself.
25 JUDGE ORIE: But would Mr. Kostic be available to come and to
1 hear the opening statement of the Prosecution, and then start
2 cross-examining witnesses for the Prosecution? It's a very practical
4 MR. BRASHICH: I believe that he would be, Your Honour.
5 JUDGE ORIE: On from when?
6 MR. BRASHICH: I believe we had an informal meeting. There
7 was -- I believe the term that Mr. Kostic used last week was that he
8 would need somewhat of some breathing room, and I'm putting that in
9 quotes, and somewhere in the beginning or middle of June. I believe that
10 was the statement that he made at that particular meeting to which I'm
11 sure that Your Honour remembers.
12 JUDGE ORIE: Yes.
13 MR. BRASHICH: I think he stands by that commitment.
14 JUDGE ORIE: Yes. Would that then be an availability that would
15 be temporary or would that be for the rest of the trial?
16 MR. BRASHICH: My understanding, Your Honour, that would be for
17 the rest of the trial. The only caveat that I would have to point out,
18 that he had wanted some input and assistance from me because most of the
19 preparation that I had done is, unfortunately, locked in my brain, and I
20 can't download the knowledge that I have into his brain as from one
21 computer hard drive to another. That's the only caveat that I recall him
23 JUDGE ORIE: Yes. So that is, may I say, a conditional
25 MR. BRASHICH: It's availability with that one caveat.
1 JUDGE ORIE: Yes. Another issue that might be of some relevance
2 is that the registry has given recently as far as I understand
3 information as to the financial aspects of the Defence in this case.
4 Would that cause any reluctance to act as counsel as far as you're aware
6 MR. BRASHICH: That is a matter of hot debate, Your Honour, which
7 is ongoing. I have not caucused with other members of the association.
8 We had a meeting on that issue with the registry last Thursday. I
9 thereafter spoke to Mr. Krajisnik and apprised him of the new regime. And
10 that matter is still up in the air. And after meeting with Mr. Krajisnik,
11 Mr. Kostic relayed to the senior legal officer, Mr. Harhoff, his views on
12 the resources issue, and I believe that is a memorandum dated the 8th of
14 JUDGE ORIE: Yes, that matter should have been settled also
15 before we would know whether Mr. Kostic would be available.
16 MR. BRASHICH: There was a meeting which took place with the
17 registry and the executive -- at least one or two members of the
18 executive council of the association on Thursday -- I'm sorry, on Friday
19 evening at 5.00. There was a letter circulated to the membership of the
20 association by email. And I believe that the association is going to
21 take a position on that matter either today or tomorrow. I have not been
22 apprised as to exactly what action it's going to take.
23 Mr. Krajisnik voiced the opinion, which Mr. Kostic transmitted to
24 Mr. Harhoff, that under the new regime, he would -- the Defence team
25 could not be constituted in a fashion or to a level that Mr. Krajisnik
1 feels his Defence should be afforded. The registry has taken the
2 position that the regime is the regime. And I believe that Mr. Kostic,
3 with a change of the present regime, not in dollars and cents, but in the
4 method of payment, would be willing to accept the role throughout the term
5 that the trial is expected to last.
6 JUDGE ORIE: Yes. I do understand that there's no full agreement
8 Do you have any idea on what has been spent on the Defence
9 just -- not costs, not travel expenses, et cetera, but --
10 MR. BRASHICH: I would estimate, Your Honour, and I haven't seen
11 any hard figures, but on a case of this magnitude, which has now lasted
12 over three years, when you have a number --
13 JUDGE ORIE: I'm just asking you whether you know --
14 MR. BRASHICH: Somewhere around 900.000 dollars to a million
16 JUDGE ORIE: Yes, add 50 per cent, and you might be closer to the
17 outcome. Do you know how many hours have been spent on preparing this
18 case, all-included, counsel, consultants, investigators?
19 MR. BRASHICH: I would say with the Prosecution, probably
20 somewhere -- if both sides are considered --
21 JUDGE ORIE: I'm asking you about the Defence.
22 MR. BRASHICH: You asked me how many hours had been spent, Your
24 JUDGE ORIE: Yes, on the preparation of the Defence and at this
25 moment the problems are -- have arisen in the Defence --
1 MR. BRASHICH: Yes, Your Honour, I would probably estimate that
2 including investigators, all-told in hours, between 15 and 20.000 hours
3 for the 36 municipalities.
4 JUDGE ORIE: Yes. There, again, according to my information, you
5 could add 50 per cent to that figure in order to come closer to what the
6 actual figure is.
7 You'll understand that the Tribunal might have some concern about
8 how time and money is spent in preparing the Defence case, that after such
9 a long period of time, that the -- that there are difficulties to commence
10 with the trial, apart from the causes of these difficulties. But there
11 has been a considerable amount of money involved, a considerable number of
12 hours involved, and nevertheless, we are not in a position to start.
13 Mr. Krajisnik, I again emphasise that this is not your fault, not
14 your -- you're not to be blamed for that. And since I also do understand
15 that you might not be fully aware of what actually this system is, since
16 in the correspondence, it appears that there might be some
17 misunderstandings now and then, I'd like to explain to you in relative
18 detail what exactly this system of assignment of counsel includes.
19 So if you would please listen to that. First of all, the Statute
20 in Article 21, paragraph 4 under (d) entitles you to defend yourself in
21 person or through legal assistance of your own choosing, to be informed
22 if you have not legal assistance of this right to be assisted by counsel,
23 and to have legal assistance assigned to the accused in any case where
24 the interests of justice are required, and without payment by him in any
25 such case if he does not have sufficient means to pay for it. So that's
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13 English transcripts.
1 the basic rule.
2 Then, in the Rules of Procedure and Evidence, Rule 45, reference
3 is made to the directive on the assignment of Defence counsel. Article
4 45, under (c) -- no, I am making a mistake. Article 45, under (a) says
5 that "whenever the interests of justice so demands, counsel shall be
6 assigned to suspects or accused who lack the means to remunerate such
7 counsel." And reference is made to the directive on the assignment of
8 Defence counsel.
9 In this directive, you find further rules as to the assignment of
10 counsel. Paragraph 6 deals with the right to assign counsel. There
11 again it's repeated in 6 (a) that "suspects or accused who lack the means
12 to remunerate counsel shall be entitled to assignment of counsel paid for
13 by the Tribunal." It also says, under 6 (c), that "for suspects or
14 accused who dispose of means to partially remunerate counsel, the Tribunal
15 shall pay that portion which the suspect or accused does not have
16 sufficient means to pay for."
17 A decision on the assignment of counsel is given by the
18 Registrar. In Article 11, it reads that the Registrar, after having
19 examined the declaration of means and relevant information obtained, the
20 Registrar shall determine how far the suspect or accused lacks the means
21 to remunerate counsel and shall decide to assign counsel and choose for
22 this purpose a name from the list drawn up in accordance with the Rules of
23 Procedure and Evidence. So the registry will assign counsel and choose a
24 name from a list of counsel that are available.
25 But there is a possibility also to have counsel assigned whose
1 name do not appear on the list in exceptional circumstances. Although it
2 seems that again such a decision of the Registrar, a decision to assign
3 counsel or to decide that you should partially pay for Defence counsel
4 assigned to you, it seems that under Rule 13 (b), that there's no remedy
5 against it. But if we look at Rule 18 (a) and (c), it seems that a
6 remedy, that means a review by the President of the Tribunal would be
7 available. At least, the Rules are not perfectly clear in this respect,
8 but I would say if you would not be -- if you would have difficulties to
9 accept such a decision, that at least under some circumstances, there is a
10 remedy, and you can ask for review of the decision by the President.
11 There does exist case law in this Tribunal which indicates that
12 the Registrar is under an obligation to consult you before counsel will
13 be assigned. There are several decisions, some suggesting that the
14 Registrar should follow your preference unless there are good reasons not
15 to do so; other decisions suggesting that the Registrar is not under an
16 obligation to follow your preference, but at least should give it full
17 consideration whether the Registrar should not follow your preference.
18 I do understand that you're not going to express yourself on your
19 preference since you have not talked to the members of your Defence team
20 at this very moment. But nevertheless, I think it's of importance to
21 look at the present situation and to see what as a matter of fact the
22 options are. But since this is not primarily the responsibility of the
23 Chamber, but of the registry, I would like to invite the registry to tell
24 this Chamber what, in the view of the registry, would be the options in
25 the present situation for you, reorganising your Defence team.
1 I invited a representative of the registry, Mr. Pimentel. Could
2 you inform the Court on what in view of you would be the options available
3 at this very moment, keeping in mind that the Chamber very much would like
4 to start the trial as soon as possible. And that's in accordance with
5 what Mr. Krajisnik would like to happen. Would you inform the Chamber
6 about this.
7 MR. PIMENTEL: Your Honour, on behalf of the Registrar who could
8 not be here himself. I am appearing, I am David Pimentel, the chief of
9 court of management in the registry. Responding to your question, in
10 order to start the trial as soon as Your Honour has expressed that the
11 desire of the Chamber, there are relatively few options, given the amount
12 of preparation necessary to proceed.
13 The options as we see it are as follows: One would be to appoint
14 Mr. Kostic as lead counsel. The amount of time he has invested in
15 preparation of the case should prepare him adequately to assume a
16 competent role as lead counsel. Another option would be to assign
17 Mr. Neskovic or Mr. Kostic on a temporary basis to assume the role of
18 lead counsel while new counsel is appointed and prepares to take over on
19 an ongoing basis. The thought would be that that may be a period of two
20 or three months while new counsel gets up to speed and is in a position
21 to take over the case as lead counsel.
22 Another option that may be more difficult to implement but may
23 still be a possibility would be to bring in someone on a temporary basis,
24 someone else from outside the current Defence team, to assist -- to play
25 the role of lead counsel assisted by Mr. Neskovic and Mr. Brashich. I
1 might add that under all of these scenarios, it's essential that
2 Mr. Brashich be retained as a legal consultant so that his knowledge of
3 the case would be available to whoever served in the lead counsel role.
4 Those, we see, as the essential options if the trial is to start
5 soon. If none of these options are available, either because the
6 attorneys involved are not willing to proceed under those circumstances,
7 or if it's determined that the Chamber will defer to Mr. Krajisnik's
8 preferences and he does not choose to go with one of these options, we
9 see no way to proceed with the case on a short-term basis. We believe it
10 will be necessary to delay the start of the trial for a period of at
11 least two to three months while new lead counsel is appointed and
12 prepares to take responsibility for the case.
13 JUDGE ORIE: Yes, that would bring us close to the summer recess,
14 which would then perhaps mean that we could start only in September. Is
15 that --
16 SPEAKER: As a practical matter, that would be the logical way to
17 approach it.
18 JUDGE ORIE: Yes. Thank you, Mr. Pimentel for informing the
19 Chamber. I would like to turn into private session for a moment.
20 [Private session]
12 Pages 145 to 152 – redacted – private session.
15 [Open session]
16 THE ACCUSED: [Interpretation] Thank you very much, Your Honour.
17 JUDGE ORIE: We all are aware of the difficult circumstances we're
18 in. Mr. Krajisnik, you'd like the trial to start as soon as possible.
19 That's also what the Tribunal would like to happen. At the same time, you
20 are aware that you have to make up your mind. That's the reason why I
21 asked the registry what the options would be in their view. You've heard
22 them all, Mr. Kostic being assigned as lead counsel. And of course, we
23 would have to solve a few problems there as well, which I just pointed at
24 in my conversation with Mr. Brashich. There would be other solutions.
25 They have all been explained to you by the Defence. I'd like to stress
1 again what the system is. The system is that your preference should be
2 taken into serious consideration. As you might be aware of, that your
3 preference until now of Mr. Brashich has resulted in -- well, I would say
4 this disastrous situation that we are in at this very moment. But
5 nevertheless, your preference, you should be consulted on the
6 preference -- I do understand that you will meet with all available
7 members of the Defence team soon, and I suggest to the registry that in
8 view of the Chamber, it would be fair to receive your view, well, let's
9 say, within approximately one week choosing of these options. If you
10 would consider also, and I noticed that you have done so before, if you
11 would consider also to ask for assignment of someone who's not yet
12 familiar with the case, and I can tell you that upon all your suggestions,
13 the registry has taken the necessary steps in order to see whether counsel
14 you mentioned were available or not. But if you would consider to be
15 assisted by counsel that are not part of your Defence team at this very
16 moment, that you, of course, could give your suggestions to that solution
17 as well whether it would be a temporary assignment, for example, I would
18 consider that the registry -- one of the options of the registry was
19 that, for example, Mr. Neskovic would assist a temporary but experienced
20 Defence counsel who would just assist you in the first stages of the
21 trial, and perhaps the counsel to be assigned on longer term making
22 himself acquainted with the case meanwhile. That's one of the options.
23 So that would require an outside counsel, counsel not yet known
24 to you to be assigned.
25 If you're thinking of this, also discuss the matter with the
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 registry. They know perhaps Defence counsel. They might inform you
2 about available Defence counsel, and then you could consider whether this
3 would be a solution. May I ask the representative of the registry also
4 whether they would be willing to assist Mr. Krajisnik if he would
5 consider to have counsel not yet known to him assigned to his team,
6 whether they could give him relevant information as to experienced and
7 available Defence counsel?
8 MR. PIMENTEL: Absolutely, Your Honour. We maintain a list of
9 counsel who have expressed interest and the association for Defence
10 counsel has verified the qualifications of a number of individuals. We
11 can make those names available to Mr. Krajisnik, and he may make a
12 selection from that list.
13 JUDGE ORIE: Yes. Could that be done in short term? I mean, I
14 suggest to you that in order to assign new lead counsel, or at least to
15 find a solution, a way out of this very embarrassing situation, that
16 Mr. Krajisnik should have some time to consider his position, to speak to
17 the available members of the present Defence team, and also to consult
18 you on any outsider who could join the team.
19 Mr. Krajisnik, how much time if the registry would give you
20 proper information and if you would have an opportunity to speak with the
21 present members of the team, how much time do you think you would need in
22 order to express preference as to the kind of solution to be found?
23 THE ACCUSED: [Interpretation] Your Honours, the only thing I
24 would like to ask is because we have three days during which I'm to meet
25 my Defence, I would like to meet also with Mr. Brashich. I don't know
1 why the possibility has not been given to him to be present at this
2 meeting. I hope that next week, after I look at the whole situation, then
3 I would be able to make a decision. I'd like to have a lead counsel as
4 soon as possible so that the trial can start. But I would like to speak
5 to him as soon as possible, Your Honours, if you'll allow me just for a
6 few minutes.
7 JUDGE ORIE: Yes, at this very moment, you'd like to speak with
8 Mr. Brashich. No? Yes.
9 THE ACCUSED: [Interpretation] No.
10 JUDGE ORIE: I'm just trying to follow you. The perhaps I do not
11 understand exactly what you said. The transcript reads: "I would like to
12 meet also with Mr. Brashich. I don't know why the possibility has not
13 been given to him at this meeting."
14 THE ACCUSED: [Interpretation] Here is the situation. I have been
15 approved by the registry to have a meeting with the Defence team,
16 tomorrow, the day after tomorrow, and the day after tomorrow. And on
17 that list, Mr. Brashich is not present. This is to have consultations
18 regarding the case and these outstanding matters. And --
19 JUDGE ORIE: You say you'd like to meet with members of the
20 Defence team including the present consultant, Mr. Brashich.
21 THE ACCUSED: [Interpretation] Yes.
22 JUDGE ORIE: The message at least is clear. It is not this
23 Chamber who decides on who you are allowed to meet with, but your wish at
24 least is very clear. And then you'd say in approximately one week you'd
25 make up your mind as to what solution to find?
1 THE ACCUSED: [Interpretation] That's correct, Your Honour. But
2 that's -- I'll give you the reason why I've mentioned Mr. Brashich,
3 because I believe this is relevant for today, because Mr. Brashich has
4 his case to be heard in New York, and there are certain obstacles for him
5 to be present at the meeting. Now, if the Trial Chamber would give an
6 order, then that would be sorted. He would be able to attend this meeting
7 with me and the other members of the Defence team.
8 JUDGE ORIE: Mr. Brashich, could you give any information as to
9 your availability for discussions with Mr. Krajisnik.
10 MR. BRASHICH: Your Honour, as I had advised Chambers, my
11 attorneys were contacted by the clerk of court of the appellate division
12 with a request that the motion for reconsideration and modification be
13 made. Before I came to The Hague, my attorneys filed that motion. I
14 have to be in New York on the 15th at 9.00 so as to also be able to
15 clarify should that motion not be granted the scope of what I can and
16 cannot do to help Mr. Krajisnik. I cannot adjourn the May 15th date
17 because every time that that is adjourned, the scope of my engagement for
18 Mr. Krajisnik is delayed. My attorneys have cautioned me that I should
19 not in any way give counsel or otherwise appear to act as an attorney
20 until this matter is clarified. The order of suspension is for one year.
21 I do not want to find myself at the end of 11 months from now in a
22 position where my reinstatement has been jeopardised by any actions that I
23 have taken which might have gone, if not against the letter, but then the
24 intent, or vice versa, of the order of suspension, Your Honour.
25 JUDGE ORIE: Yes, I do understand that it's in your interest to
1 keep at a distance, and at the same time, it's quite clear that
2 Mr. Krajisnik says that he needs you at this very moment.
3 Would you be available for consultation tomorrow?
4 MR. BRASHICH: I have a flight 11.15, Your Honour. I would be
5 available between 8.00 and 9.30, whatever it takes to get to the airport.
6 JUDGE ORIE: Yes --
7 MR. BRASHICH: I hate to put another burden on the travel office,
8 which is overburdened, but as I had stated to the senior legal officer,
9 I'm fully prepared to do everything in my power to assist Mr. Krajisnik
10 and his confidence in me so that the problem that I have caused would have
11 as little impact on him and on this Tribunal.
12 JUDGE ORIE: Would you again be available on Friday?
13 MR. BRASHICH: Friday is the 15th, Your Honour.
14 JUDGE ORIE: Yes, that's right.
15 MR. BRASHICH: I can possibly take a late flight tomorrow, to be
16 able to get me in --
17 JUDGE ORIE: Okay. Would you please explore whatever
18 possibilities there are together with Mr. Krajisnik and the registry.
19 I'm not fully aware of the times with which you can meet with your client.
20 I do not know when the other members of the team are available. But would
21 you do the utmost possible --
22 MR. BRASHICH: Excuse me, Your Honour, may I consult with
23 Mr. Neskovic for one moment.
24 JUDGE ORIE: Yes, please do so.
25 [Legal consultant and Defence counsel confer]
1 MR. BRASHICH: Mr. Neskovic advises me that they're arriving
2 tomorrow, and that he has a scheduled meeting at 1.00. Your Honour, I'll
3 make a representation that I will make every effort to be at that meeting
4 for whatever period of time. But I am conditioning that upon my
5 consultation with John Walsh and his associates who are acting as my
6 counsel in New York. And I would have to follow their advice as to the
7 attendance at the meeting.
8 JUDGE ORIE: Yes, which is quite apart from -- the views of
9 Mr. Walsh are not necessarily in accordance with what the Tribunal would
10 expect you to do. But since we do not know that view, I would just
11 indicate to you that however important such advice may be for you, but
12 it's finally your own responsibility what you'll do and what you'll not
14 I think we have discussed at this very moment whatever has to be
15 discussed. I live in the expectation that having listened well to you,
16 Mr. Krajisnik as well, that this Chamber could expect that a constructive
17 solution could be worked on approximately one week from now on when you
18 have made up your mind.
19 I also hope that it's entirely clear to you that where the
20 registry is under an obligation to consult you and where your preference
21 is of importance for the decision of the registry, it might not be the
22 final word on who will be assigned because your right to be assisted by
23 counsel of your own choosing, even if you cannot afford to pay for it by
24 yourself or partially to pay for it by yourself, is not an absolute
25 right, but find its limits somewhere. And we might have come close to
1 those limits if no workable solution is found on very short notice.
2 THE ACCUSED: [Interpretation] May I say something.
3 JUDGE ORIE: Yes.
4 THE ACCUSED: [Interpretation] May I just say something. I just
5 wanted to ask you if I can have until the end of next week to decide,
6 because I have a meeting, and then there is a weekend, all that. So if I
7 can have time until the end of next week regarding my decision with
8 relation to the lead counsel.
9 JUDGE ORIE: Yes. Of course, I'm not granting you the time. The
10 only thing I'm indicating is that the sooner you come up with a suggestion
11 that could be followed or would be acceptable for the registry, the sooner
12 they might give a decision. And whether a week would be reasonable or six
13 days or eight days, that's not up for this Chamber to decide. But you may
14 be aware that the Chamber is very much concerned about the present
15 situation not created by yourself, but nevertheless existing, and a
16 solution has to be found as soon as possible. And the sooner you come up
17 with your own views and your own preferences, the better the chance that
18 they can taken into due consideration. Yes?
19 Is there anything else one of the parties would like to raise at
20 this very moment?
21 MR. HARMON: There's nothing on behalf of the Prosecution, Your
23 JUDGE ORIE: Thank you, Mr. Harmon. Mr. Neskovic?
24 MR. NESKOVIC: [Interpretation] No, Your Honour.
25 JUDGE ORIE: Mr. Krajisnik, it's common that at Status
1 Conferences, we always try to get proper information about your health
2 situation. It's not a long time ago that we had our last conference. So
3 if there would be any changes, the Chamber would like to be informed about
4 it; and then if you would prefer to do so, we could do it in private
5 session as well. If there have been no changes, then we can conclude this
6 Status Conference.
7 THE ACCUSED: [Interpretation] I would just like to thank you.
8 Thank you very much.
9 JUDGE ORIE: Yes.
10 THE ACCUSED: [Interpretation] But I feel great, so there are no
12 JUDGE ORIE: This then concludes this Status Conference. I
13 indicate that even if a decision would be taken on short notice, that the
14 Prosecution would need at least until the 2nd of June to prepare for --
15 but that would be, I take it, on the assumption that a decision would be
16 taken by now. So if they would need approximately two and a half weeks
17 for preparation for the witnesses to appear, that whenever the decision
18 will be delayed, the start of the trial would be delayed accordingly. Is
19 that a correct understanding, Mr. Harmon?
20 MR. HARMON: It's my understanding after checking with the witness
21 unit that from the date of the decision, it would be approximately two
22 weeks for arrangements to be made for witnesses to start appearing.
23 JUDGE ORIE: Yes. So that would prevent a start on very short
24 notice anyhow. But the Chamber still would very much prefer to start
25 before the summer recess, and well in advance of the summer recess,
1 because it's of no use to start on the 29th of July and go into recess on
2 the 2nd of August, or whatever date it will be. So I expect everyone,
3 but I'm especially looking to the Defence, and to you, Mr. Krajisnik, to
4 do whatever is possible to resolve the matter and enable the trial to
5 start as soon as possible.
6 The Chamber adjourns.
7 --- Whereupon the Status Conference adjourned
8 at 5.30 p.m.