Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5677

1 Tuesday, 21 September 2004

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22 [Open session]

23 JUDGE ORIE: Mr. Stewart, please address the matter that you

24 intended.

25 MR. STEWART: Yes. Your Honour, the -- I said, and that remains

Page 5706

1 the position, that there wasn't anything specific to the witness currently

2 giving evidence which caused any difficulty about open session. The --

3 the matter of Mr. Krajisnik's request to ask questions himself by way of

4 cross-examination has, of course, arisen in the first place specifically

5 in relation to this witness, but it is more general.

6 Your Honour -- Your Honour is quite right in the reference made

7 just a moment ago while the blinds or curtains were coming up to refer to

8 the fact that of course it gives rise to the whole question of relations

9 between counsel and the accused.

10 Your Honour, the -- there is one highly exceptional case at the

11 moment in front of this Tribunal, Mr. Milosevic's case, but I must admit I

12 haven't got time to follow Milosevic's case as well in enormous detail but

13 it's impossible not to be aware of developments in that case. That's a

14 wholly exceptional situation, as Your Honour is aware. There it's quite

15 clear Mr. Milosevic does not want counsel. Counsel have been imposed upon

16 him, so it's an utterly different situation, and Mr. Milosevic is not

17 giving instructions to those counsel. So it's totally different.

18 Mr. Krajisnik has requested counsel in this case, has requested

19 assignment of counsel, and I as lead counsel and then Ms. Loukas as

20 co-counsel have been assigned. The code of conduct that we are under, and

21 this actually applies to our own domestic codes from our own bars as well

22 as the code of conduct applicable for this Tribunal reflects the clear

23 understanding that we as counsel have the conduct of the case.

24 Now, Your Honour will know from Your Honour's own experience that

25 of course there is a -- there is a borderline, there is a margin at which

Page 5707

1 there can be legitimate debate about whether something falls on the line

2 of client -- on one side of the line, the client's instructions, or the

3 conduct of the case, but that particular border area is not, in fact, the

4 practical difficulty between counsel and client. In this sort of case,

5 the practical area of discussion, to put it gently and mildly between

6 counsel and client, is actually to do with the client understanding what

7 that actually means in practice and understanding that counsel, having the

8 conduct of the case, actually does mean that, and it means that counsel do

9 get to decide how the case is presented, how to go about it.

10 The -- Your Honour referred to having survived 17 years in a

11 system which would be unfamiliar to me. I confess that. Your Honour, we

12 do aim -- we -- at the moment we are, in a sense, struggling to survive in

13 many respects in this case. We would strongly urge that we are given

14 something other than mere survival in the handling of this very difficult

15 case.

16 It's not necessary, not appropriate for me to enter into any

17 confidential discussions between Mr. Krajisnik and me. That would be

18 quite wrong as to actual content or substance of the case, but what I do

19 feel able to say is that, perhaps not surprising, given that Mr. Krajisnik

20 is on any footing a -- we can see that from the evidence, he's a strong

21 character and intelligent man. It's not surprising that some fairly tough

22 talking would have taken place over a pretty long period between

23 Mr. Krajisnik and me when I first came into the case, particularly in the

24 circumstances, the slightly unhappy circumstances in which Mr. Krajisnik

25 had to have a change of counsel team.

Page 5708

1 The demarcation and the understanding and the explanation and, in

2 the end, bluntly an assertion that that was the way it was under the code

3 of conduct and that is the way which cases have to be conducted, that

4 involved some very long, tough talking.

5 Mr. Krajisnik, I said yesterday and I stand by this, of course we

6 have our moments within the Defence team, no doubt it even happens within

7 the Prosecution team, of course there are strong disagreements from time

8 to time and they get resolved. Naturally there are strong disagreements

9 between Mr. Krajisnik and me, but the general working relations are pretty

10 good. But it is not going to help the conduct of this case one bit for

11 anybody, and certainly not for Mr. Krajisnik, if we now depart, after that

12 protracted discussion, if we now depart from the clear understanding that

13 if Mr. Krajisnik wishes a point to be presented in his defence before this

14 Tribunal, he needs to instruct his counsel clearly as to that point, and

15 then it is our job to form our professional assessment about how best to

16 present that case both on that point, both on the strategic level, because

17 this is a marathon, not a sprint, and on the tactical day-to-day level.

18 And that exercise is severely undermined if we are not able to be

19 confident that Mr. Krajisnik at least understands - whether he likes it or

20 not is another matter - Mr. Krajisnik at least understands that that is

21 the way it should be done. Because if we are, after all this time, now

22 thrown back to a position where Mr. Krajisnik feels -- I'm not suggesting

23 Mr. Krajisnik is going to do anything deliberately underhand or anything

24 like that - I'm not suggesting that for one moment - but if Mr. Krajisnik

25 feels, well, all right, I don't -- I don't actually need to tell my

Page 5709

1 counsel this, I don't need to tell them everything, I don't need to be

2 frank with them because I have the opportunity now of stepping in and I

3 have the opportunity of asking questions. I, Mr. Krajisnik, have that

4 reserve option, if you like. That is going to be immensely damaging to

5 the conduct of this case on behalf of Mr. Krajisnik, and it is going to be

6 contrary to his interests.

7 It's absolutely plain that we don't like it, Your Honour. From

8 our own professional, personal position, we would hate this. That's --

9 that's not the acid test, although we wouldn't like it perhaps to be

10 totally disregarded because it's not the Trial Chamber's job to make our

11 life easy, but we do request the Trial Chamber does what it can to make

12 our life no more difficult than it already is in this area. But the

13 fundamental point is it is just not the right, effective, proper way in

14 Mr. Krajisnik's interests and then indirectly in the interests of justice

15 and the interests of the Tribunal and the Trial Chamber to do it this way.

16 The -- it's also, we comment, it would -- as Your Honour indicates, it

17 would be unprecedented if we leave aside that very special situation - and

18 the particular solution there is perhaps not exactly what's being talked

19 about here - that very special situation in Mr. Milosevic's case. Is this

20 going to become a general practice? Otherwise, what is the reason for

21 Mr. Krajisnik, apart from the fact that this is what he would want to do,

22 what is the reason for Mr. Krajisnik being given this special

23 dispensation? It arose in the context of his concern about inadequate

24 preparation in relation to a witness. But as a matter of fact, a client

25 is nearly always going to feel that that is so, because inevitably in a

Page 5710

1 complicated case there will be, because we're only human, there will

2 always be areas that the client feels that his counsel has not absorbed,

3 has not understood, has not covered. There's a post-mortem in relation to

4 many cross-examinations. Sometimes the post-mortem, if post-mortems can

5 have a happy result, sometimes the post-mortem has the happy result that

6 all those questions that the client was insistent should be asked he now

7 sees didn't need to be asked or were even better not asked. Sometimes the

8 post-mortem has the result that the client still feels dissatisfied.

9 Maybe sometimes the client might be right about that. Quite often the

10 client isn't right about it.

11 Your Honour is very familiar with these extremely difficult

12 judgements. But if these judgements are split in this way, the result is

13 complete chaos, and we do urge upon the Tribunal that this is a retrograde

14 step to allow it. It may appear spuriously to be an attractive freedom

15 and an attractive opportunity to give to a defendant, but on analysis it

16 is absolutely and fundamentally the wrong way of dealing with the matter.

17 Mr. Krajisnik has counsel. As a matter of fact, he's applied to

18 remove us as counsel, and we are taking a neutral position on that as

19 things stand absolutely at this moment because we are committed to

20 Mr. Krajisnik's defence, we are committed to doing it in a professional

21 way, having the conduct of the case on the basis of his instructions, and

22 we have indicated to the Registry that we will abide by the Registry's

23 decision on that. So we neither support nor oppose Mr. Krajisnik's

24 application, but we think it's fair, without getting into that, we think

25 it's fair to say that Mr. Krajisnik's application is not fundamentally

Page 5711

1 based on a suggestion that we are not competent. It seems not to be that

2 at all. And certainly if there were any suggestion that that were part of

3 the basis of Mr. Krajisnik's application, either to this Tribunal now on

4 this particular point or more generally, that would be a much bigger

5 issue. But we don't understand that to be an element of anything. And in

6 those circumstances if we take the assumption in our own favour, if we

7 make the assumption that we are at least professionally competent, the

8 case should simply proceed in the normal way.

9 Mr. Krajisnik has his right under the Statute, he has his

10 fundamental right to be represented and present his case through counsel

11 as the alternative that he has chosen, the alternative to his initial

12 right; he could have done the case himself, but he has asked for

13 assignment of counsel, and at the moment he has counsel.

14 JUDGE ORIE: Thank you, Mr. Stewart. First of all, I notice that

15 Mr. Krajisnik would like to perhaps add something to what just has been

16 said, but before giving an opportunity to do so, Mr. Hannis, I'd like to

17 know whether the Prosecution would take any specific position in what

18 seems to be not directly a problem which affects the Prosecution, although

19 questioning, of course, could have some impact on the Prosecution as well.

20 MR. HANNIS: Your Honour, I thought about what our response would

21 be if we were asked. It is -- it's difficult because I'm not sure what

22 our standing is to take a position in regard to this matter. I do know

23 from my brief tenure as a public defender many years ago I had a situation

24 like this where it occurred and the Judge permitted the defendant to play

25 an active role and it was very -- as a practical matter, very difficult to

Page 5712

1 try and manage that because the client is taking one tack and the lawyer

2 is taking another and it can create some severe problems.

3 JUDGE ORIE: But this sounds more as an expression of sympathy

4 with Mr. Stewart than -- but I'd like to know the position whether the

5 Prosecution at all takes a position, because of course these are

6 Prosecution witnesses. If cross-examined by or at least put questions in

7 cross-examination by Mr. Krajisnik, I'd like to know whether there's any

8 clear position apart from understanding of what it means for counsel,

9 whether the Prosecution takes a position.

10 MR. HANNIS: Your Honour, I think what I would like to do now is

11 take no position but reserve the opportunity to perhaps respond later if

12 this matter gets a continuing discussion.

13 JUDGE ORIE: Okay. So for the time being no position by the

14 Prosecution.

15 I think, looking at the --

16 [Trial Chamber confers]

17 JUDGE ORIE: Yes. I just consulted with the other Judges whether

18 we should grant the request of Mr. Krajisnik to express himself, at least

19 to either respond or add something. We will briefly allow Mr. Krajisnik

20 to make some observations.

21 Mr. Krajisnik, you may proceed.

22 THE ACCUSED: [Interpretation] Thank you, Your Honours, for

23 allowing me to address you.

24 I agree with Mr. Stewart in the greatest part of what he just

25 said, although he exaggerates our differences a little. Mr. Stewart

Page 5713

1 doesn't believe in me, but I believe in him. That's the difference.

2 However, the point is this: I would be happy if my counsel were prepared

3 to examine this witness. Why would I ask to add some questioning myself?

4 I would satisfy myself with just directing certain questions to my

5 counsel.

6 However, there is a number of witnesses who are crucial for

7 getting at the truth. It is for the sake of getting at the truth that it

8 is essential for this witness to be examined properly.

9 It is a technical problem that I'm completely excluded from the

10 process of my counsel's preparation because of the language barrier, among

11 other things. Yesterday, we spent together 90 minutes. We did not manage

12 to settle one single issue because Mr. Stewart does not understand the

13 peculiarities dealt with by this witness.

14 Whatever you decide, I know that you are well-intentioned. But I

15 just had a laugh a second ago. The Prosecutor would be happy if what my

16 counsel -- if what my counsel was saying were true, that I would hurt

17 myself. This witness would be telling the truth, and you will decide as

18 you wish, but I beg you to allow this at least as an experiment. If you

19 decide otherwise, I know that you are well-intentioned anyway, and thank

20 Mr. Hannis -- I thank Mr. Hannis here, because I appreciate his approach,

21 his approach being that what matters is to get at the truth. Thank you.

22 JUDGE ORIE: Thank you, Mr. Krajisnik. We will adjourn until ten

23 minutes past eleven, and a decision will follow before the start of the

24 cross-examination.

25 --- Recess taken at 10.42 a.m.

Page 5714

1 --- On resuming at 11.12 a.m.

2 JUDGE ORIE: Mr. Hannis, I was informed that you would like to

3 address the Chamber.

4 MR. HANNIS: Yes, Your Honour, thank you. I asked that we resume

5 in open session because during the break I raised this issue with my

6 fellow senior trial attorneys on this case and some of the supervisors in

7 the case because we saw that the Court's decision regarding this matter

8 could have implications beyond this case, for other cases as well as the

9 institution. So I was asked to come back and advise the Court that the

10 matter is being discussed in my office and we would like to have the

11 opportunity to address certain issues to the Court before you decide. I

12 understood that the Court intended to decide before we begin

13 cross-examination, but I didn't know if you were going to decide

14 immediately when we came back in.

15 JUDGE ORIE: No, but when could you, because I think it would be

16 fair that both the accused -- the accused and Defence counsel would know

17 at the beginning of the cross-examination what -- what position the

18 Chamber takes. So therefore, when could you make your submissions? Right

19 away or --

20 MR. HANNIS: Well, Your Honour.

21 JUDGE ORIE: -- do you need some more time?

22 MR. HANNIS: I think we will need some more time, and I

23 anticipated I was going to finish my cross -- I mean my direct examination

24 before the end of the day, even possibly before the end of this next

25 session.

Page 5715

1 JUDGE ORIE: Yes.

2 MR. HANNIS: In which case we would need to have a break.

3 JUDGE ORIE: Okay. We'll give you an opportunity to -- to make

4 further oral submissions and therefore will have a short break after the

5 -- after the examination-in-chief has -- is concluded.

6 MR. HANNIS: Thank you, Your Honour.

7 JUDGE ORIE: Yes. Then we'll have to return into closed session.

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9 [Open session]

10 JUDGE ORIE: Mr. Hannis, you announced that you would give the

11 position of the Prosecution, and since we are in open session at this

12 moment, it's the position of the Prosecution on whether or not to grant

13 the request of the accused to put questions during cross-examination to

14 the witness we are hearing at this very moment.

15 MR. HANNIS: Your last remark, Your Honour, indicates to me only

16 as to this witness?

17 JUDGE ORIE: Well, if you would like to put it in a more broader

18 context, of course. If a decision will be taken in respect of this

19 witness it might cast some shadows. Yes, please proceed.

20 MR. HANNIS: Thank you, Your Honour.

21 We first of all start by recognising the Trial Chamber's, the

22 Court's innate authority to determine how the trial should proceed in the

23 course of the presentation of evidence. That's entirely within the

24 Court's discretion. The proposed change that is being asked for here by

25 Mr. Krajisnik is a significant change, we urge, that would be a big change

Page 5740

1 in Tribunal jurisprudence. I understand Milosevic is a special case, at

2 least we always speak of it as being a special case in that regard. And

3 this is happening sort of not midstream in this case, fairly far along in

4 this case. On the other hand, we understand that exceptional

5 circumstances can justify a change.

6 We would argue, however, Your Honour, that by allowing the

7 proposed change, we have a concern that in essence it's giving the Defence

8 two bites of the apple if his counsel is able to ask questions of a

9 witness and then, when he's finished, Mr. Krajisnik is able to ask

10 questions. We know it's a concern of all of us being able to move through

11 this proceeding as efficiently and quickly as possible, so time

12 constraints are a factor.

13 We think that some of Mr. Krajisnik's concerns really can be

14 satisfied if he's given an opportunity to consult with his counsel on

15 these particular witnesses. I understand he has a concern about the

16 ability of his lawyers to be as knowledgeable about a particular witness

17 like the pending witness given the amount of time they've had to spend on

18 this case. This is something that the defendant knows by heart because

19 he's lived it. He's known these people for years, he knows it better than

20 anyone else possibly could. And no one could expect his counsel to know

21 it that well, but we think that if Mr. Krajisnik has additional questions

22 that he would like to be presented to the witness, it can be done through

23 his counsel.

24 In the end, Your Honour, I think the Court has to strike a balance

25 between the orderly and efficient conduct of trial, between the

Page 5741

1 defendant's right to a fair trial, and also the rights and concerns of

2 victims and witnesses who come to testify, because that can have an impact

3 on them as well.

4 If Your Honours do decide to allow the procedure in this case, we

5 would -- we would request or urge the Court consider doing it with very

6 tight controls, perhaps trying it only with one witness to see how it

7 goes. We suggest it would not be appropriate or necessary or efficient to

8 allow it with all witnesses.

9 For example, a crime base witness from a small village in the

10 hills of Bosnia would not be a witness that Mr. Krajisnik would personally

11 have to cross-examine. It makes more sense with a witness like the

12 present one.

13 In addition, we have questions about if you do adopt it, Your

14 Honours, how do we deal with what we've been calling the 60 per cent rule

15 in our case where you allow Defence approximately 60 per cent of the time

16 spent on direct examination for cross-examination. Does Mr. Krajisnik get

17 60 per cent and Mr. Stewart get 60 per cent? Do they divide the 60 per

18 cent 50/50? How do we do that?

19 In addition, it may have an impact on scheduling and planning of

20 witnesses. Your Honour I hope realises that we have tried our very best

21 to be efficient in estimating times for how long witnesses will take and

22 not having witnesses sit around here and then having to go home and come

23 back the next week. With an additional cross-examiner and one who is not

24 a lawyer and for whom we don't yet have a feel of how his

25 cross-examination would go and whether he would the full 60 per cent or

Page 5742

1 none, it could have a bearing on such mundane matters as scheduling and

2 planning.

3 And finally, the last thing, Your Honour, I would ask if you do

4 decide to allow it with regard to this particular witness, I would ask

5 that before we resume with him or before the cross-examination begins,

6 that the Court advise a witness that Mr. Krajisnik is going to

7 cross-examine him, because during the course of our proofing, out of

8 curiosity the witness asked me about the procedures before Court, and I

9 told him I would ask him questions, the Defence counsel would ask him

10 questions, then the Court would ask him questions, and he would be done

11 and he would not be asked questions by Mr. Krajisnik. So this would come

12 as a surprise to him, and I would ask the Court advise him of that before

13 it happens so he doesn't think that I've misled him. Thank you.

14 JUDGE ORIE: Thank you, Mr. Hannis.

15 MR. STEWART: Your Honour, since there's fairly substantial

16 contribution by the Prosecution, I would ask for the opportunity of

17 dealing with a couple points.

18 JUDGE ORIE: Yes.

19 MR. STEWART: First of all, Your Honour, we're a little bit taken

20 aback, as it appeared Mr. Hannis was, by the suggestion that there might

21 be a just ruling in relation to this particular witness. Really it

22 follows from many of the submissions this morning that we really do, with

23 respect, need and want to have a very clear position on this. The

24 absolutely disastrous position is going to be if we an ad hoc position in

25 relation to every witness where we will presumably then have -- if in

Page 5743

1 principle -- we're inviting Your Honours in principle to reject this whole

2 suggestion as simply unworkable and unhelpful, but if you should be

3 tempted down the other course, we will just have perpetual conflict and

4 dispute and debate and complete mess if every time Mr. Krajisnik feels

5 there is a witness that he should have a go at as well we have this

6 particular debate.

7 Actually, the question -- I rather agree, with respect, with

8 Mr. Hannis that as far as the crime base witnesses are concerned one

9 wouldn't suppose that there would be any particular interest for

10 Mr. Krajisnik, but in a way that illustrates the drawbacks of this

11 procedure, because presumably it is going to be what Mr. Krajisnik sees as

12 the more important witnesses in which he's going to want to exercise this

13 right.

14 So far as this particular witness is concerned, we also don't see

15 -- or submit that it's not clear what's exceptional about this witness.

16 He is -- he is in the category, obviously, of the more substantial

17 witnesses rather than a large number of crime base witnesses, but this

18 particular complaint, in effect, that Mr. Krajisnik is making is actually

19 a familiar complaint. It's just that on this particular occasion it's

20 been conversed into a request which in a sense is lurking there all the

21 time in Mr. Krajisnik's attitude toward witnesses. He is, as I've

22 indicated as many clients do - I don't blame him for this, Your Honour -

23 he's always complaining that we haven't covered the ground, that we don't

24 know enough. That's what clients do in complicated cases.

25 But the -- we -- we -- excuse me one moment.

Page 5744

1 Yes. The last observation I wanted to make was this, Your Honour,

2 in relation to Mr. Hannis's questions about -- perfectly reasonable

3 questions about what happens about the 60 per cent guideline. I don't

4 suppose --

5 JUDGE ORIE: I can already answer that. Whatever the decision

6 will be, there certainly will be no more time for cross-examination as is

7 given now to the Defence. So whatever our decision will be, it's not even

8 considered by the Chamber.

9 MR. STEWART: Your Honour, I accept that and would endorse it and

10 was really going to make a submission along those lines on the basis that

11 they are -- it is a guideline, of course, in every case, but in fact what

12 it leads on to is this point, which is also, if you like, a corollary of

13 what we were saying this morning, that what happens to our conduct of the

14 case as counsel? Because when it comes to cross-examination normally, I

15 decide -- I hope in proper consultation, but I decide whether co-counsel's

16 going to cross-examine this witness, whether I'm going to cross-examine

17 this witness. That's what I do. What do I do about this? Do I negotiate

18 every time with my own client what the split's going to be? And imagine

19 the work involved in sitting down together then instead of actually

20 usefully working on the instructions, actually thrashing out who is going

21 to cover what. What are you going to cover Mr. Krajisnik? Well, I don't

22 know because we'll have to thrash this out in advance before we properly

23 even know. What am I going to do, go down and see him at 3.00 in the

24 morning to decide what we're actually going to ask the next day? It is

25 really quite fantastic, the suggestion, Your Honour. The more I'm on my

Page 5745

1 feet submitting the more the fantastic elements of it appear to emerge.

2 It is simply not a helpful way for anybody to proceed.

3 JUDGE ORIE: Thank you, Mr. Stewart.

4 [Trial Chamber confers]

5 JUDGE ORIE: The Chamber prefers to withdraw just for a couple of

6 minutes to see whether we can give a decision immediately so that

7 everything's clear for the parties and for Mr. Krajisnik. We will

8 adjourn. Please, would you remain standby.

9 --- Break taken at 1.09 p.m.

10 --- On resuming at 1.19 p.m.

11 JUDGE ORIE: Mr. Krajisnik, the Chamber has considered your

12 request and will give a decision on it and also give some reasons which

13 may have a more -- which may be of a bit more general character.

14 One of the consequences of the choice to be assisted by counsel

15 and not to defend oneself is that counsel conducts the Defence, presents

16 the Defence case at trial. Controlling the case presentation is a highly

17 important aspect is of the professional responsibilities of Defence

18 counsel. Counsel, I would say it goes almost without saying, will act in

19 accordance with the instructions given to him by the accused. Any other

20 division of labour, and I'm now talking about the work to be done in

21 court, entails serious risks. I mention only two: Confusion among the

22 Judges as to what exactly the Defence case is if inconsistencies in the

23 case presentation would arise. The second, that the defendant may face

24 the detrimental effect of any activity of himself that would disturb the

25 tactical and strategic lines counsel have set out, and I do not even

Page 5746

1 mention the lack of experience of most accused in trial techniques,

2 including such matters as where to continue and where to stop questions on

3 the subject at stake.

4 These observations are sufficient to strictly stick to the system

5 that counsel examines the witnesses, receiving information and

6 instructions from the accused to that end. However, it is conceivable

7 that exceptional circumstances might come into being. We will then, upon

8 a submission by the accused showing good cause to deviate from the rule I

9 just set out, decide.

10 In respect of the present witness, no good cause has been shown.

11 That's our decision in respect of your request.

12 Then I think we should continue in closed session.

13 [Closed session]

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19 --- Whereupon the hearing adjourned at 1.47 p.m.,

20 to be reconvened on Wednesday, the 22nd day of

21 September, 2004, at 9.00 a.m.

22

23

24

25