1 Wednesday, 15 December 2004

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.53 p.m.

5 JUDGE ORIE: Madam Registrar, would you please call the case.

6 THE REGISTRAR: Case number IT-00-39-T, the Prosecutor versus

7 Momcilo Krajisnik.

8 JUDGE ORIE: Thank you, Madam Registrar.

9 We are here this afternoon to hear any submissions from the

10 parties in respect of a possible application of Rule 15 bis (D).

11 Last Friday, on the 10th of December, the two remaining Judges,

12 that is, the two Judges remaining after the withdrawal of Judge El Mahdi

13 from this case takes effect, the two remaining Judges invited the accused

14 to inform the Chamber of whether or not he would consent to the

15 continuation of this case to be heard with a substitute Judge in order to

16 include this information in the report to the President. I have sent my

17 report to the President. Meanwhile, I take it that it has been filed this

18 morning, so that it's accessible to the parties.

19 When informing the Chamber about the not giving consent, yesterday

20 in the afternoon the Defence has asked for a hearing on which submissions

21 could be made. The Defence -- as a matter of fact, both parties are

22 entitled to make whatever submissions they'd like to make in anticipation

23 of any decision to be taken by the remaining Judges.

24 I'm aware that the Defence asked for a hearing tomorrow morning.

25 The two Judges, the two remaining Judges would have agreed to that, but

1 there was no courtroom available and the Judges were not willing to

2 further postpone a hearing. Therefore, we have scheduled it this

3 afternoon.

4 When I emphasised that both parties can make their submission, it

5 is also in view of the Rule 15(D), where it says that if the two remaining

6 Judges would determine that it would be in the interest of justice, it

7 would serve the interests of justice to continue that both parties have a

8 right to appeal, and I'm telling the parties not anything new if I tell

9 them that for appeal proceedings, of course, it might be of some

10 importance to be able to rely on what you said prior to the decision being

11 taken by the two remaining Judges.

12 Is there any preference as to which party would like to make its

13 submissions first? Perhaps the Defence is the most interested party at

14 this moment, so therefore, Mr. Stewart, please proceed.

15 MR. STEWART: Well, Your Honour, I have absolutely no objection

16 whatever to going first. Your Honour, the -- what I'm going to do is --

17 we know, I apprehend the procedural background. I'm not going to run

18 through all that. Your Honour, the -- Mr. Krajisnik's position has now

19 been made clear. Your Honour, we did receive an e-mail from the Trial

20 Chamber saying that this decision was found surprising but understandable.

21 Of course, Your Honour, it's our submission it's understandable. We're

22 slightly surprised it's surprising, but it doesn't matter because by the

23 time we get to the end of these submissions we hope that Mr. Krajisnik's

24 position will be (a), understandable; and (b), not any longer surprising.

25 Your Honour, what I should also make clear about Mr. Krajisnik's

1 position is that he is not contending, through us, that, in the particular

2 circumstances there should be neither a new trial nor a continuation of

3 the old trial. That could be the position in the future if a similar

4 situation arose. But the future is the future, and at that point, one

5 could reach a situation where neither course was appropriate. But on this

6 occasion, Your Honour, we're not arguing that it's in the overall

7 interests of justice to have neither a new trial nor a continuance.

8 Nevertheless, Mr. Krajisnik's position is very clear. He has not -- the

9 way it's put in the Rules he has -- he does not consent to a continuation

10 of these proceedings, i.e., this trial, because he wishes to have the

11 alternative, a rehearing in terms of a new trial.

12 So, of course, they're mutually inconsistent; hence, since it is

13 his wish and our submission that there should be a new trial, of course

14 his consent necessarily had to be withheld under 15(C). Otherwise it is

15 not a consistent position.

16 So, Your Honour, the way that we phrase the question, and it's a

17 legitimate paraphrase of 15 bis (D), is in those circumstances, and that

18 being Mr. Krajisnik's position, which of a new trial or a continuation

19 better serves the interests of justice. Because 15 bis (D) is talking

20 specifically about the decision for the two of Your Honours whether a

21 continuation would serve the interests of justice. But since the only

22 rival contention, but it is the rival contention, the alternative, is a

23 new trial, effectively, it is which of them better serves the interests of

24 justice.

25 JUDGE ORIE: Yes. Mr. Stewart, I think that's understood. If you

1 look at the French version of Rule 15 bis (D), you'll see that it

2 says "better serves."

3 MR. STEWART: That's even better, then, Your Honour.

4 JUDGE ORIE: Yes.

5 MR. STEWART: I hadn't -- I do occasionally look at the French,

6 Your Honour, when I see ambiguity and uncertainty in the English, but I

7 must confess a preference for English as my first port of cause. Yes,

8 Your Honour, I understand that means -- "meilleur," I suppose, is a --

9 JUDGE ORIE: It says "sert mieux."

10 MR. STEWART: I understand the grammar. Thank you, Your Honour.

11 Thank you so much for that. Well, in that case, there's clearly no issue

12 whatever. The English, as I've understood it and submitted it to mean

13 accords with the French.

14 The -- Your Honour, the technical position - again, to go very

15 quickly over this - is that our submission is and we believe that this is

16 also firmly understood by the jurisprudence, there's no presumption either

17 way that Your Honours simply decide which is the better course and do not

18 start with any legal presumption.

19 The structure of Article 15 -- of Rule 15 bis, after all, is that

20 there is no continuation at this point without consent, and then a special

21 provision to allow one effectively what we call compulsory continuation if

22 our submissions in this particular case are rejected.

23 So although there's not a presumption, it does require, of course,

24 a positive decision by Your Honours.

25 The basic foundation is, we submit, that unless there is some

1 sufficient reason to the contrary that a defendant, and especially a

2 defendant in Mr. Krajisnik's position, on such serious charges, and it

3 goes without saying, the charges are the most serious, because it's

4 genocide and then a whole series of other very serious crimes. So they

5 are the most serious. Mr. Krajisnik is a 60-year-old man. That's quite

6 recent. But he is now a 60-year-old man facing, without any concession at

7 all being made, but if he were convicted on all charges, he faces a clear

8 risk of life imprisonment. I say no more than that. But clearly, that

9 must be realistically a risk.

10 The starting point is that he should have the assurance, if at all

11 possible, when his trial starts, that all three Judges should hear, and

12 where appropriate, read all the evidence throughout and on equal terms.

13 That may sound like a rather fine distinction from a presumption, but

14 it's, we submit, a clearly correct statement of principle, that as far as

15 possible, and we operate in the real world, Mr. Krajisnik should have had,

16 ideally, and should have now, if at all possible, a trial with all Judges

17 present all the time.

18 And the importance of the presence of all Judges all the time is

19 recognised, endorsed, and inferred very clearly from other provisions in

20 Rule 15 bis which are not directly the issue here, but 15 bis (A), dealing

21 with short-term absence from the trial, and then 15 bis (F), which

22 authorises a Chamber to conduct routine matters, but only routine matters,

23 in the absence of one member of the Chamber.

24 So that's consistent with and endorses that essential principle.

25 There is also an important principle expressly enshrined in the

1 Rules, but it would be clear anyway, equality of Judges. The presiding

2 Judge, Your Honour Judge Orie in this particular instance, the Presiding

3 Judge naturally chairs, in effect, and directs the proceedings to a very

4 considerable, practical extent, but of course all three Judges are equal

5 in deciding Mr. Krajisnik's case. He is entitled to their equal say, and

6 if it comes to it, to their equal vote. And he could, in principle, one

7 among many permutations, he could as any defendant be acquitted by a 2:1

8 majority by the Trial Chamber. So it is absolutely vital that, so far as

9 possible - of course, we can only do the possible, not the impossible -

10 but so far as possible, no Judge should be in any sense less well equipped

11 than any other Judge. For example, by being put in a position of

12 deferring or feeling that there might be any circumstances in which he or

13 she might defer to a greater grasp or knowledge of the case. And there is

14 that practical element. All Judges of this Tribunal are, of course,

15 independent mind and disposition or they wouldn't be here, but that's a

16 very -- that's, all the same, a natural element and concern if one does

17 have any imbalance.

18 Of course, Your Honour, we note 15 bis inevitably involves a

19 compromise of this point in the particular circumstances with which it

20 deals. We're not operating in some remote, unreal world. So of course it

21 does. But that nevertheless, in our submission, leads to the accompanying

22 principle that such compromise should be kept to the absolute minimum.

23 And I come to that shortly in balancing. Because it is a balancing. It's

24 one of those balancing exercises, however near the borderline it comes,

25 between new trial and continuation.

1 The basic foundation, as I think I labelled it, of Mr. Krajisnik's

2 essential entitlement to have all Judges hear all the evidence throughout

3 and so on, as I summarised it, follows and is consistent with elementary

4 features of trial procedure that -- and trial procedure in many tribunals

5 but specifically before this Tribunal, that there should be an oral

6 hearing, with witnesses. 92 bis and 89(F) being restrictive exceptions

7 applied in accordance with the Rules and the jurisprudence in certain

8 defined if not in detail always specifically defined circumstances, and

9 particularly 92 bis having importance exceptions where it has no

10 application and can have no application at all, particularly in relation

11 to acts and conduct of the accused.

12 So oral hearing with witnesses. Opportunity for all Judges to see

13 and hear all witnesses live or all important -- all witnesses are

14 important, but or they wouldn't be in the case, about all important

15 witnesses by which I just mean as a shorthand, there are of course, among

16 the 92 bis witnesses, there are witnesses that neither party nor the Trial

17 Chamber consider it necessary to hear and see live. And there's not

18 always an issue about 92 bis witnesses, after all.

19 The -- and we note, I mentioned 15 bis (A), the short-term dealing

20 with matters. That's limited to five days absence of a Judge and is not

21 automatic anyway, of course. It's applied according -- only when the

22 circumstances justify. And so we have oral hearing, opportunity for all

23 Judges, and that's reinforced by several provisions of 15 bis. All Judges

24 to be there throughout. And with physical attendance of witnesses,

25 subject to -- oral witnesses, but subject to specific application for

1 videolink evidence and a specific order under Rule 71 bis. So videolink

2 is an exception. It's sensibly applied and it has been occasionally used

3 already in this case, but it's clearly not the basic procedure. The basic

4 procedure is that witnesses turn up and give their evidence in full view

5 of all the Judges and the accused, cross-examined in the same room as --

6 examined and cross-examined in the same room as counsel.

7 So that's the basic background.

8 The current state of this trial is, of course, relevant. It

9 cannot be -- it can hardly be irrelevant. In a nutshell there, we attempt

10 to summarise in a time to put together this information. Your Honour, if

11 an apology is needed for some of these figures perhaps not being a hundred

12 per cent accurate, although we believe most of them are, the degree of

13 inaccuracy we submit is not material. If we're out by one or two

14 somewhere in the count, we might be quickly corrected, but even if not

15 corrected, we don't -- we suggest it won't affect the substance.

16 We have heard, or Your Honours have heard so far 41 viva voce

17 witnesses in the sense that they were not under 92 bis at all. So they

18 were not partially 92 bis or whatever. They were simply viva voce

19 witnesses giving their evidence in chief and being cross-examined

20 viva voce. 41. One is and was an expert witness, Mr. Treanor. The rest

21 are and have been factual witnesses, witnesses of fact, of which -- and

22 here we're not a hundred per cent about this next figure, Your Honour, but

23 on our count, 17 of those, or very close to 17, involved some element of

24 89(F), to shorten the actual oral evidence in chief.

25 So that's -- but that's the category of viva voce witnesses.

1 Second category: We've had five witnesses whose evidence in

2 chief, or whose evidence has been admitted under Rule 92 bis but with

3 cross-examination, and they have attended and been cross-examined. That's

4 the second category.

5 The third category is we have had just over 40, but very close to

6 40, but our count is just over 40 Rule 92 bis witnesses admitted, or their

7 evidence admitted, without cross-examination.

8 Then -- so those are the three categories of witnesses in a sense

9 who have either already been heard or in the case of those Rule 92 bis

10 witnesses admitted without cross-examination, their evidence is in a sense

11 on the file. It's equivalent to their having been heard.

12 There then as a fourth but slightly different category, there are

13 several by which we believe it's only about three or four Rule 92 bis

14 witnesses who have already been admitted but with cross-examination -- but

15 with cross-examination, but that's still to come. So they haven't come

16 anyway.

17 The -- so those are the witnesses. The total hearing is in fact

18 exactly, because it might otherwise sound like a round figure but in fact

19 we have had exactly a hundred days of hearing, according to our records on

20 the Defence side. So they've been spread and for reasons that Your

21 Honours are familiar with and we all know the timetable and the

22 circumstances in which the trial started, they've been spread over 11

23 months, but we have had a hundred days of hearing.

24 The -- so next question is then a new trial, which is what we're

25 contending for. What would it involve? And within the Rules and the

1 established procedures, there is a considerable degree of flexibility,

2 especially with sensible agreement of the parties. And straight away,

3 Your Honour, I should make it clear that the Defence submission and the

4 Defence request will not involve the trial simply starting again as if

5 nothing had happened, and apart from all the pre-trial briefs and the

6 indictment, for Heaven's sake, those things have happened, but not

7 starting again as if nothing had happened and no witnesses had ever given

8 evidence and no 92 bis rulings had ever been made, apart from those made

9 perhaps before the trial began. We're not suggesting that. It's not our

10 submission and not our proposal that it would be sensible to have a total

11 rerun of the trial in every respect. But it is, and we maintain that, it

12 is our position that there should be a new trial as opposed to a

13 continuation.

14 So -- and I will, of course, need to explain and develop that a

15 little so Your Honours understand exactly what it is we're proposing and

16 how practical it is.

17 Your Honour, the Defence position would be this with a new trial:

18 We would not seek to reopen, or put it another way, to resist a renewed

19 application, if that's the way it were technically done, the question of

20 the 92 bis witnesses. So that all the 92 bis witnesses where Your Honours

21 have already ruled that their evidence should be admitted, we would accept

22 that. If it were necessary to go through a technical step of renewing the

23 application, we don't believe it is, because even if it's a new trial, it

24 talks in 15 bis about continuation of proceedings. But this is still the

25 case of the Prosecutor against Krajisnik.

1 The -- so we would accept the 92 bis rulings. We would also

2 accept and not seek to have recalled any of those 92 bis witnesses where

3 the evidence in chief was admitted at the Prosecution's request and we

4 were -- that was five of them - and we were able to cross-examine. We

5 would be content and would agree to the transcripts of their evidence

6 being treated as their evidence. So from that practical point of view,

7 that would be very much the equivalent of the position in relation to

8 those witnesses if the situation were the existing trial to continue.

9 The key points -- I hope I haven't omitted anything from these

10 categories, and our acceptance of 92 bis rulings would also apply to that

11 small category where they've been admitted with cross-examination still to

12 come. But then cross-examination is still to come, whatever happens in

13 relation to those witnesses. But we would not seek to reopen the

14 admission of their evidence under 92 bis. Your Honour knows there are

15 some tiny little bits of tidying up in relation to one or two witnesses

16 where there's a redaction issue but those are so minor that they really

17 have no bearing on the issue today.

18 The key to all this, and the nub of the practicalities of a new

19 trial as opposed to continuation of present trial, lies with a relatively

20 short list of important witnesses. I've already said all witnesses are

21 important, but some animals are more equal than others and some witnesses

22 are more important than others. And perhaps I could give Your Honour, and

23 I'll be careful here with these names, but perhaps I could give Your

24 Honour -- it's a dozen names, and I wonder if I may simply read them off

25 carefully, because, well, they will be familiar names to Your Honour, but

1 may I do that.

2 They are, and I -- no disrespect to the gentlemen concerned.

3 [Defence counsel confer]

4 MR. STEWART: Excuse me, Your Honour. My team were concerned that

5 I was going to read name of protected witnesses, but they -- on this

6 occasion, although they have justification for that concern, on this

7 occasion their concern was not necessary.

8 Your Honour, the witnesses concerned are Deronjic, Treanor,

9 Kirudja, Okun, a protected witness, another protected witness, Kljuic --

10 I'll come back to KRAJ numbers in a minute, Your Honour. Another

11 protected witness, Radic, Bjelobrk, Mandic, and Karabeg. And the

12 protected witnesses in question, Your Honour, are 625, 623, and 583. And

13 whether Your Honour probably carries those numbers in your head, but Your

14 Honour will be familiar with which three gentlemen we're talking about.

15 Your Honour, Mr. Deronjic, and may I indicate, Your Honour, what

16 we would propose on the Defence side in relation to those witnesses,

17 because this is really the heart of the matter. Mr. Deronjic gave

18 evidence for just under five days. And without elaborating the point,

19 Your Honour, the Defence would wish there to be a new trial and for

20 Mr. Deronjic to come and give his evidence in full as a witness before all

21 three Judges at the new trial.

22 Mr. Treanor gave evidence for ten days. We would not suggest that

23 it's practical or sensible for Mr. Treanor to need to come back and give

24 another ten days of evidence in addition to his voluminous report. What

25 we do suggest is that for a maximum of two days, Mr. Treanor should

1 return. There is, in the light of our rather better knowledge of the

2 case, since those relatively early days when Mr. Treanor was

3 cross-examined, there is further ground the Defence would wish to cover,

4 and it would be of value to the new Judge to see and hear Mr. Treanor for

5 that period. It would -- the difference in terms of assessing Mr.

6 Treanor, getting a feel for his evidence, the difference between two days

7 and ten days is hardly critical, but to have him back at all is

8 advantageous, we suggest.

9 So far as Mr. Kirudja is concerned, he gave evidence for just

10 under three days. Your Honour, with Mr. Kirudja - and this applies to a

11 number of witnesses - we would not suggest that his evidence is jettisoned

12 in any way. We would suggest that the evidence that he's given so far,

13 whether it is technically done, we suggest, under 92 bis. But the -- his

14 evidence should be treated as evidence in the new trial, but nevertheless,

15 he should come back, unless, Your Honour, the Defence on -- we haven't had

16 a long time to consider all these detailed matters. If we did consider it

17 was simply not necessary, then, Your Honour, we would conscientiously say

18 so, but at the moment we consider that that would be reasonable and we

19 would be likely to ask for that for -- but we consider for one day

20 maximum.

21 Mr. Okun gave evidence for three and a half days. We would treat

22 him in the same category as Mr. Kirudja but suggest that a maximum of two

23 days would be needed for him.

24 Protected witness 625, like Mr. Deronjic, the Defence would wish

25 to come back and give evidence in full.

1 Protected witness 623 gave evidence for four days. The Defence

2 would like him to come back for a maximum of one day, cross-examination.

3 Your Honour, we should say, we don't -- when we say come back for

4 cross-examination, we're not excluding the possibility that the

5 Prosecution might say: We'd like some supplemental examination-in-chief.

6 And we're not saying in advance that if they were to make that request -

7 we don't know whether they would - we're not taking a position in advance

8 of resisting and objecting to that. We're saying the Defence's position.

9 So far as Mr. Kljuic is concerned, Your Honour, he's coming back

10 anyway. We would be content, as he is coming back anyway, we would be

11 content to have his evidence so far simply taken as his evidence, and he

12 is going to come back and the new Judge, whichever way, we accept this,

13 some of these are common features, whether it's the continuation of the

14 present trial or a new trial, Mr. Kljuic will come back. But what we're

15 suggesting is there should be no distinction; he should come back in the

16 same way either way, that continuation or new trial, his evidence should

17 be treated as his evidence, but he is coming back for further

18 cross-examination, and he has already supplied some material which was

19 under discussion when he gave his evidence before.

20 So far as Witness 583 is concerned, he gave evidence for three

21 days. The Defence there, Your Honour, would simply wish to reserve the

22 position in the way that it's, I believe expressly in his case, but

23 implicitly, it's reserved for any witness anyway to make an application to

24 have him come back for further cross-examination. But we have no active

25 application under way at the moment. We have not taken any decision,

1 although to be frank, we haven't had a lot of time to review his evidence

2 in detail anyway. But we simply reserve it.

3 So far as Mr. Radic is concerned, he gave evidence for just under

4 three days. The Defence would wish him to come back. As in every case,

5 this does enable the new Judge to see this witness, to get a feel of this

6 witness, to come back for one day. We're talking about a maximum of one

7 day.

8 Mr. Bjelobrk, well, I can't say he's coming back, because I do

9 appreciate that Your Honours are reserving the position in relation to

10 Mr. Bjelobrk, but, Your Honour, the Defence's position remains that there

11 is -- we haven't resolved all matters between us and the Prosecution, but

12 the Defence position remains that there will be reason to bring

13 Mr. Bjelobrk back. On that footing, Your Honour, we would be content to

14 treat him in the same way as Mr. Kljuic, for example; take his evidence as

15 his evidence so far and have him come back. The Judge would get to see

16 him.

17 So far as Mr. Mandic is concerned, while technically reserving our

18 position in relation to Mr. Mandic, as with all witnesses, we can't ever

19 rule out and wouldn't wish to positively rule out any application ever to

20 bring him back, whatever happened. We have no present intention of making

21 such an application now in relation to Mr. Mandic. We do not expect to

22 make an application. That's the highest I'll put it. We do not expect to

23 make an application to bring Mr. Mandic back. But there remains a great

24 deal of material in relation to Mr. Mandic, and I don't want to go all

25 over that painfully recent ground, Your Honour, but it's not impossible

1 that we would make such an application. We do reserve our position.

2 And then Mr. Karabec [phoen]. I think I mentioned him. I

3 certainly meant to. Mr. Karabec -- Karabeg, I'm sorry, gave evidence for

4 two days, spread over three, but it was a total of two days in fact.

5 There's a question. I'm not terribly familiar with the details of this,

6 Your Honour, but he has produced some diaries, or he is to produce some

7 diaries and there is a question of his being further cross-examined for

8 probably no more than a couple of hours.

9 So, Your Honour, those are -- those are the key witnesses for

10 today's purposes. The -- yes. Those are the key witnesses for today's

11 purposes. In many cases, of course, there was a slightly variable

12 approach. In some cases, we have reserved the position formally; it's

13 implicitly reserved anyway. In some cases we have, in a sense, more

14 firmly and expressly reserved the position with a strong indication that

15 we are likely to make an application to bring -- for the witness to be

16 brought back, and in one or two cases, Your Honour, it's already known

17 that we positively do wish for the witness to come back.

18 But the effect is, if our proposals -- they could be discussed in

19 -- they merit some discussion between the parties to refine, but in

20 principle, that's the Defence's approach, which is on the table there, and

21 it is not, so far as we've indicated, for example, in relation to 92 bis

22 witnesses, we're not withdrawing that. That is a firm position of the

23 Defence.

24 The -- so far as the -- with Mr. Deronjic and another witness

25 being brought back in full and then the position in relation to those

1 other witnesses, as I've just summarised it, we estimate there's about an

2 extra 15 days of hearing on a rerun or a new trial, as opposed to

3 continuation of the present trial, where, in particular, two of those -- I

4 think it was two of those witnesses, but there are certainly two, in

5 particular, two would come back and give their evidence all over again,

6 truly as if it were a -- well, not as if it were, but truly on the basis

7 that it is a new trial. And that is the important distinction. It may

8 not seem very much, Your Honour, but when one strips away, not as

9 irrelevant but as in a different category, when one strips away what one

10 might call background witnesses, crime-base witnesses, all important, no

11 doubt, as elements of the case, but when one strips that away, on the

12 witnesses we've heard so far, it does come down to a smallish batch of, if

13 you like, critical witnesses. We'll argue in due course about how

14 critical some of them are. But it does come down to that. But there is

15 nevertheless a real distinction between new trial and continuation.

16 If we continue the present trial, of course the new Judge will

17 have the enormous task of reading in so that he or she is sufficiently

18 familiar to be on an even level with the other two Judges to contribute

19 equally and evenly. Of course, there will be no intellectual distinction

20 in principle among the Judges, but that Judge needs, as a human being, to

21 get up to speed with the other two Judges. That, Your Honour, of course,

22 we accept, is not greatly different from the task of a new Judge on a new

23 trial. There isn't a huge distinction there, particularly if, although

24 it's not technically -- it doesn't follow technically under the Rules, but

25 we rather expect and apprehend that Your Honours Judge Orie and Judge

1 Canivell are intended to continue to be the other two Judges. We -- it's

2 not -- doesn't follow as night follows day from the Rules, but we're

3 approaching it on that footing, Your Honour.

4 Your Honour Judge Orie indicated last Friday his view that it --

5 that the new Judge would require rather longer if there were a

6 continuation of the present trial than if there were a new trial. I

7 should say straight away, Your Honour, that although I could adopt this

8 for the purpose of the present argument, the Defence, with respect,

9 doesn't fully endorse that view. We would submit that there's unlikely to

10 be any serious distinction in terms of the work truly needed and the

11 timetable. But perhaps that's a bridge to be crossed a little bit at some

12 relatively near future point.

13 But if Your Honour is, and I don't mean any disrespect in saying

14 this, but if Your Honour is correct on that observation, then that 15-day

15 difference that we've estimated between a new trial and a continued trial,

16 a lot of that is eliminated anyway in terms of proceeding with the case,

17 because in fact Your Honour's indication was that you expected

18 continuation of a present trial to -- or to resume some two or three weeks

19 later than starting a new trial, which pretty much balances out that 15

20 days. So in terms of starting on that footing, which I have made it

21 clear, Your Honour, we don't fully accept, with respect, but on that

22 footing, there wouldn't be a really significant difference.

23 The -- certainly -- well, we've indicated which recall of some

24 witnesses would be desirable anyway, on the footing that the present trial

25 were to continue. We would still submit - but that would be a submission

1 perhaps in more detail for another day - we would still submit that

2 Mr. Treanor should come back for a couple of days, that Mr. Bjelobrk

3 should come back anyway, and we might very well make submissions in

4 relation to Deronjic and Witness 625, submissions that they should at

5 least come back for further cross-examination, which would be a different

6 thing from what we ask, and that is, after all, the prima facie procedure

7 in the context of a new trial, that they should come back and give their

8 evidence again.

9 Your Honour, we submit there's no useful, applicable precedent

10 here from the jurisprudence of this Tribunal or the sister Tribunal in

11 Arusha which casts -- which really tells us any more than an intelligent

12 reading of 15 bis. The options are clear under that Rule. In particular,

13 and Your Honour, it's pretty difficult to make submissions in this area

14 without mentioning the case against Mr. Milosevic, which does tend to be

15 in people's minds around here sometimes. In the Milosevic case, of

16 course, we know that in most unhappy circumstances, one of our Judges from

17 England and Wales left the case, which we all deeply regretted. But the

18 Milosevic case is and was -- there was a substitution then and we know

19 that one of the Scottish Judges has joined that Bench. But it is a very

20 special case. There was no view expressed by the accused consistently

21 with his overall attitude towards the Tribunal and the proceedings, he

22 wasn't likely, after all, to be drawn into expressing a view under a

23 provision of the rules, and he didn't. There was no submission by any

24 party or the amici there should be a new trial. The amici curiae said

25 that there should not be a new trial because of the known ill health of

1 Mr. Milosevic. But that's as far as they took it. And of course it had

2 by that time been a very long trial. There was no consideration expressed

3 by the Trial Chamber or the remaining Judges, for the purposes of 15(D),

4 of any argument for a new trial. So the issue simply is not argued and

5 appearing in any judgement.

6 They were further along in the trial. Your Honour, that's an

7 argument -- that's a point that might cut both ways, but rather than get

8 into a digression down that byway, we simply observe it's very different.

9 The situation is very different. Mr. Milosevic had been brought to

10 The Hague on the 29th of June, 2001. His trial had started on the 12th of

11 February, 2002. The Prosecution case had ended on the 27th of February,

12 2004. Shortly thereafter, Judge May announced his retirement and the Rule

13 15 bis hearing in the manner that I've summarised, took place on the 25th

14 of March, 2004. There was, according to our information and

15 calculations - well, it's information rather than calculation, Your

16 Honour - something between 290 and 300 -- there had been 290 to 300

17 hearing days in the Milosevic case at that point, and the Prosecution case

18 had spread over some -- well, it doesn't really matter about weeks. It

19 had been that number of days.

20 All we're saying, Your Honour, it's a very different case.

21 The -- Your Honour, among, and I'm getting fairly near to the

22 conclusion of my submissions, which we're grateful to have had the

23 opportunity of making. There is always a question of inconvenience to

24 witnesses. That's a factor. We don't submit it's irrelevant under the

25 heading of "interest of justice." There are lots and lots of factors

1 which are somewhere on the scale of relevance, and we don't suggest that's

2 not among them. However, and in principle, every witness who needs to be

3 brought back to The Hague is a factor to be given tautologously such

4 weight as it merits. But it's not a utilitarian analysis. You don't

5 aggregate together the relative lower interests of all the witnesses and

6 then balance them against Mr. Krajisnik's interests. One bears in mind,

7 we submit, that Mr. Krajisnik's interest as the man on trial are far

8 greater than any witness. And in any case, first of all, it follows from

9 what we've already said: Few witnesses would be adversely affected, even

10 in terms of inconvenience, by adoption of our submission for a new trial

11 as opposed to a continuation. This is a very small number of witnesses.

12 Within that category, there are -- we can identify at least one,

13 and Your Honour may be able to identify, in the category of witnesses who

14 are in custody anyway, in which case one might say - and I'm not being

15 flippant - that the inconvenience of coming to court to give evidence for

16 a witness who is already in custody might be regarded as rather slight.

17 The -- there are others who are expressed a positive wish to be

18 helpful in reaching the truth and don't have any apparent difficulties

19 beyond what I'll call the normal inconvenience. I'm not saying it's not a

20 nuisance to some people, though it's a pleasure to others to come to

21 The Hague for a few days, but it's not a major, major consideration for

22 witnesses who are inherently not reluctant and have expressed a wish to

23 help in this search for the truth.

24 And then as a back-up in some cases, videolink under 71 bis is

25 always available if the convenience is significant and can be

1 significantly mitigated in the case of appropriate witnesses by

2 videolink.

3 So, Your Honour, all that is simply meant to say that

4 inconvenience of witnesses in principle is part of the exercise but is

5 really of no overall significant weight in making the balance that Your

6 Honours are making today.

7 The -- it does not appear also, Your Honour, we observe, there's

8 no indication that we have in this trial any insuperable witness

9 availability problems. I'm not talking about the witnesses that nobody

10 can persuade to come in the first place or nobody can contact in the first

11 place. That's a problem that lies behind all these procedures. But so

12 far as the witnesses who are identified are concerned, we have not seen

13 any significant problems, insuperable problems of witness availability.

14 And in any case, more to the point, a new trial in the terms that we've

15 suggested as opposed to a continuation doesn't create any obvious extra

16 difficulties in that context.

17 Your Honour, the question of timing, we've already submitted that

18 in fact there isn't in the overall context of this matter, there isn't an

19 enormous -- in fact, there's not really at all a significant likely

20 difference in the timing and the ultimate conclusion of this case anyway

21 as a result of adopting the Defence submission in this case. But so far

22 as there had been or so far as, in Your Honour's judgement, now looking at

23 the position overall, there is some difference, it's not, first of all, it

24 isn't on any footing a massive difference.

25 From Krajisnik's point of view - and we've had this point before,

1 really - he's in detention, of course, and in principle, from his point of

2 view, the sooner this trial is concluded, the better. But Mr. Krajisnik,

3 this being his position that he wishes a new trial with any consequential

4 timing implications accepted by him, is consciously and deliberately

5 accepting those consequences of his preserved course. So although the

6 Trial Chamber is, we trust, at all times astute to protect Mr. Krajisnik's

7 interests, the Trial Chamber does not need to go and should not go so far

8 as to impose concerns on Mr. Krajisnik in areas where he's willing to

9 accept the position himself.

10 So far as the wider public interest on time is concerned, again,

11 it follows, Your Honour, from our submissions that we say this is not a

12 significant factor. There is, on any footing, a limited effect on the end

13 date of this trial. And it may even be that the better focus which the

14 parties are now able to bring to bear on the matter will even more, in the

15 light of experience of this case, will even more shorten any possible

16 disparity.

17 The -- any such difference in overall timetable between new trial

18 and continuation in any case needs to be very carefully balanced and not

19 given undue weight against the specific interests of an accused who has

20 already been in detention for four and a half years - a fraction more -

21 and faces an inevitable total time of around six years from arrest to

22 trial judgement. So the sort of timing implications that we're talking

23 about cannot be a significant factor weighing against the interests, and

24 indeed the preferences, of Mr. Krajisnik. He doesn't decide the issue,

25 but his preferences are, we suggest, important.

1 The -- I'm going to mention in a couple of sentences, Your Honour,

2 the completion strategy issue, where we were grateful to receive Your

3 Honour's confirmation, express confirmation in a short exchange a few

4 weeks ago, that it is only -- the completion strategy is only part of the

5 general framework, that the whole Tribunal is required to wind up its work

6 by a certain date, and we were grateful for Your Honour's express

7 confirmation that such matters were only part of the general framework and

8 did not drive judicial decisions in this case. And we appreciated that

9 confirmation. And putting it another way, the completion strategy and

10 related matters can, in principle, only be devised to accommodate the

11 appropriate the judicial decisions in the interests of justice, such as

12 the decision that Your Honours are faced with and not the other way

13 around. That would be, in a good old English phrase, the tail wagging the

14 dog.

15 The resources, again, Your Honour, we don't, as we didn't with

16 witnesses, we don't argue that resources are always irrelevant and that we

17 operate in some ideal world where everything can be done with no limit of

18 expenditure. Of course, if we operated in an ideal world, none of us

19 would be here anyway. The -- but we don't argue that, Your Honour, and of

20 course time often, not always, but time often costs money, though that's

21 not an unqualified phrase which should be taken out of context. But the

22 approach, we suggest, with respect, is, while not totally disregarding

23 resources, is of course to keep them in perspective. If one asks first of

24 all what would be more likely to achieve a just result in this case in as

25 fair a way as can be realistically be managed, then one looks to see

1 whether there are disproportionate resource implications which drive

2 towards a different conclusion. But it must in any case only be a

3 conclusion which doesn't in any way seriously imbalance and seriously

4 weaken the justice of the procedure.

5 Your Honour, the difficult, and I'm on my last couple of

6 observations here -- the difficult issue that we have faced throughout, of

7 time for preparation on the Defence side, that remains an issue which may

8 need to be taken up, well, will need, frankly, Your Honour, to be taken up

9 as and when at the appropriate time with the Trial Chamber, as and when

10 and in the context of whichever procedure is adopted; continuation of the

11 present trial or the new trial. But it is, we suggest, at least a

12 consideration that the Defence began this case under acknowledged enormous

13 pressure and that, as Your Honours know, we had not been able to complete

14 pre-trial preparation when the trial began on the 3rd of February, 2004,

15 and that was recognised.

16 We have examined important witnesses with, in our submission,

17 inadequate grasp. We've done our best not to make that too obvious,

18 perhaps, but with inadequate grasp of the some of the matters, and that is

19 a reason in favour -- it's one reason, but it is a reason, an additional

20 factor in favour of a new trial and bringing back the very limited number

21 of witnesses where we submit it is particularly important that there

22 should be some recognition and, if you like, compensation adjustment in

23 respect of that point.

24 And, Your Honour, I simply would say this, Your Honour; that if

25 some similar procedure existed for counsel to the procedure under which

1 the new Judge, if there is a continuation, has to certify that he has

2 familiarised himself with the record, if Defence counsel were required to,

3 in their professional judgement, sign some such certificate before

4 proceeding with a trial to defend Mr. Krajisnik, I doubt that I would sign

5 the certificate today, and I certainly would not have signed it over many,

6 many, many, many months of this trial, and I would certainly have to think

7 extremely hard if I were asked to sign it over the next few weeks.

8 The -- and I understand Ms. Loukas would have no more enthusiasm

9 for signing a corresponding certificate.

10 The -- my concluding submission, and it's part of the context, and

11 I hope Your Honours won't take it in any hostile spirit. The situation we

12 are faced with is remarkable, in effect, if one steps back a bit from it.

13 The fact that the procedures devised by the United Nations, the Security

14 Council, and this Tribunal have been devised in such a way that a Judge

15 starts a trial which is known to be going to continue beyond his term of

16 office, and then when he's not re-elected, which is, after all, a known

17 and serious risk because electorates of any sort are notoriously

18 unpredictable, or certainly should be, that no way can be found and has

19 been found to resolve the matter so that he could stay with the case, is,

20 Your Honour, we must submit, deeply unsatisfactory. If the consequences

21 of any course adopted in the interests of justice in this case might be

22 viewed, and we understand, in the light of observations made that this

23 would not be treated as relevant by Your Honours, but we simply say that

24 if the consequences are unsatisfactory when viewed by any planners or

25 budgeters in New York or The Hague or anywhere else, then that is simply

1 part of the cost of doing proper justice in the conditions created by the

2 United Nations, by the Security Council, and this institution under the

3 auspices of the United Nations. Because we are all of us, and Your

4 Honours included, faced with a very difficult and unsatisfactory situation

5 as a result. We respect Judge El Mahdi's retirement given the situation

6 that he faced in anticipation of where the matter would be next November.

7 But unsatisfactory it is. The Defence submission is that in a way the

8 lesser of two evils, because it would have been much better, Mr. Krajisnik

9 has certainly made clear his preference that we could have finished with

10 the Judges that we've started with. It's our submission that the more

11 satisfactory course, the better course in the interests of justice, is a

12 new trial, to which the Defence is prepared to attach and accept the

13 particular flexible adjustments and conditions that we have indicated.

14 JUDGE ORIE: Thank you, Mr. Stewart.

15 Mr. Harmon.

16 MR. HARMON: Good afternoon, Your Honours, counsel. My

17 submissions will be considerably briefer than Mr. Stewart's.

18 First of all, a plain reading of the Rule implies inherent in this

19 Rule is the fact that a substitute Judge can indeed familiarise himself or

20 herself with the trial record in this case and can put himself in a

21 position where the accused can be assured that a third substitute Judge

22 would have the ability to hear all of the evidence and read all of the

23 evidence that has been presented thus far in the hundred days of trial

24 that we have had.

25 There is a precedent -- in fact, there are two precedents that I'm

1 aware of where a substitute Judge has been inserted into a case. The

2 first, I won't belabour the point, of course, the Milosevic case.

3 Mr. Stewart has described that. The second case was the Blaskic case,

4 where Judge Fouad Riad became medically incapacitated and could not hear

5 the evidence well into the Prosecution's case and there was a substitute

6 judge, Judge Almiro Rodrigues, who familiarised himself with considerable

7 amounts of evidence in the case and sat with great distinction in hearing

8 that case, and all parties in that case were satisfied that Judge

9 Rodrigues had provided each of the parties with a full understanding of

10 the evidence and a full opportunity to listen to and deliberate on all of

11 the evidence that had been heard to date.

12 Now, to further expand on sub-part D, the Prosecution's position,

13 in very clear and unequivocal terms, is that it is in the interests of

14 justice to appoint a substitute Judge. A substitute Judge, Your Honours,

15 can put himself in the position, first of all, of knowing what the case

16 is, knowing what all of the issues are, by availing himself or herself to

17 the written record, all of the exhibits, and the video record of each of

18 the witnesses who have testified in this case. So if the Judge would like

19 to hear, for example, and see the demeanour of a witness, one of the

20 witnesses taken, for example, Mr. Kirudja, one of the witnesses who has

21 been cited by the Defence, then that video is available for the substitute

22 Judge to listen to, to observe. Furthermore, if the substitute Judge

23 wishes to have a question posed to one of those witnesses, the substitute

24 Judge is in a position to make a request to have the witness reappear.

25 At the end of the day, Your Honour, the Prosecution has enormous

1 faith in the integrity of a substitute Judge, who would certify that he or

2 she has familiarised himself or herself with the record, and having seen

3 two cases proceed, one to completion, I'm quite confident that all of the

4 interests of justice could be met by having a substitute Judge appointed

5 in this case.

6 Now, let me touch upon some other issues that have been raised by

7 Mr. Stewart. Mr. Stewart has presented to Your Honours a package that

8 seems to suggest that starting anew would cause fewer problems. While I

9 have great respect for Mr. Stewart and faith in his representations in

10 this case, certainly we have gone through in the process to date

11 significant written litigation dealing with a host of issues that could be

12 raised anew should we start over that process, which entails written

13 motions, responses, replies, and considerable effort by the Trial Chamber

14 to arrive at written decisions would commence anew, and there's no

15 assurance whatsoever that that would not happen. Frankly, I think those

16 issues should remain litigated and remain in the status that they are in

17 at the moment.

18 I think, furthermore, Your Honour, that when we discuss the

19 convenience or inconvenience of witnesses, while Mr. Stewart concedes that

20 that is a relevant factor, as I go through the list of witnesses that

21 Mr. Stewart wants to recall by virtue of the unfortunate circumstances of

22 Judge El Mahdi's withdrawal, what Mr. Stewart is essentially asking for is

23 a second opportunity to cross-examine these witnesses, when he has had an

24 opportunity, and a full opportunity, to cross-examine these witnesses.

25 I think Your Honours should consider, in the interests of justice,

1 whether it is convenient or inconvenient to call people back who have been

2 some subpoenaed, some witnesses diplomats, others who arrived with --

3 whose attendance was difficult to secure, at best. There is no assurance

4 that these witnesses would come back or could come back. I can point Your

5 Honours to a witness who is not identified on this list, and I'm not

6 asserting that that's one of the witnesses, obviously, that Mr. Stewart

7 had in mind, but we can remember the case of Mr. Biscevic, whose

8 cross-examination was bifurcated, and Mr. Biscevic, because of ill health,

9 could not re-attend the trial. We did, obviously, surmount that

10 difficulty with a videolink, at considerable expense to this Tribunal.

11 But there's no assurance that some of these witnesses could ever

12 reappear, and that is a risk that I think the Court must and should take

13 into consideration in this case when it assesses whether or not a

14 substitute Judge, listening to the trial record and analysing the trial

15 record, has available and at his disposal the ability to assess that

16 witness's evidence.

17 I have mentioned the precedent, the standards which I think fully

18 exist for a fair trial to continue. I'll touch briefly on the costs.

19 This is a case where tremendous consideration has been given to

20 Mr. Krajisnik for the considerable pre-trial period, and this Court and

21 the parties have bent over backwards to accommodate him. I believe in

22 this case, Your Honour, the interests of justice require - require - that

23 a substitute Judge be appointed and that we proceed with a proper

24 certification from that Judge that he is in a position to sit fully on

25 this case.

1 I should point out one other precedent, Your Honour. It's been

2 pointed out to me recently, just a minute, that there is another precedent

3 in this case. I'm informed that in the middle of the Stakic case, a Judge

4 was taken ill and was replaced as well. So there are three precedents,

5 all of which, I do believe, have been situations where the accused in each

6 of those cases has -- is continuing to or has received a full and fair

7 hearing in the face of an unfortunate circumstance where a Judge has been

8 withdrawn.

9 Those are our submissions, Your Honour. Thank you very much.

10 MR. STEWART: Your Honours, I wonder if I might briefly, after the

11 Prosecution heard what we had to say before submitting, I'll be very

12 short.

13 JUDGE ORIE: Yes. Please do so.

14 MR. STEWART: Your Honour, first of all, in relation to the

15 precedents, the Stakic case mentioned, the case of Mr. Stakic, where he

16 consented. Your Honour, what we said, and we don't wish to elaborate, we

17 said there are not many useful precedents, that these cases are all

18 different. Of course we started by saying we accept this procedure is

19 available under this Rule. It says so in black and white. And we're

20 agreed about that. But we adhere to our submission that all other limited

21 number of cases are sufficiently different from this case that it's Your

22 Honour's independent judgement which is the key here, and those other

23 cases don't really tell Your Honours any more than we find in 15 bis,

24 which was our submission about half an hour ago.

25 The second point is that Mr. Harmon refers to written litigation

1 on a host of issues. We do suggest if that is to be a point, then a

2 little more specificity might have been required. We -- it's -- if that's

3 to be a point, then some indication as to exactly what that is and where

4 the difficulty lies would be appropriate.

5 Third point, very brief bullet points, in effect, Your Honour:

6 Mr. Harmon says we're asking for a second opportunity to

7 cross-examination. That's true, but it's not only that. In relation to

8 two of those witnesses, in particular Mr. Deronjic and Witness 625, it's

9 not just that we're seeking an opportunity to cross-examine. It's quite

10 specifically that we would wish the new Judge to hear their evidence in

11 full and have those witnesses, in the particular circumstances in which

12 they have found themselves, come and give all their evidence before this

13 Judge, and they are not insignificant witnesses.

14 And Your Honour, the jurisprudence of this Tribunal and the sister

15 Tribunal in Rwanda does consistently attach significance to Judges hearing

16 the witnesses when they give evidence, hearing them give evidence orally

17 when they give evidence, and not looking back over a record. It is a

18 second-best to familiarise oneself with a record, however much it is

19 accepted, as of course it's accepted as a principle enshrined in the

20 Rules, that a Judge before this Tribunal will be capable of meeting the

21 requirement under the Rules of familiarising himself with the record. But

22 it's inherent in that whole procedure that it is a second-best.

23 The example of Mr. Biscevic is just an example of how, where a

24 witness -- and Your Honour knows that the Defence didn't express its

25 enthusiasm about Mr. Biscevic's position anyway, but the Trial Chamber did

1 decide to deal with his evidence in a bifurcated way, which is less

2 satisfactory for the Defence than for the Prosecution. The Prosecution

3 wanted it dealt with in a bifurcated way, as it turns out, and we didn't.

4 But it was easily resolved, effect. It was. He did give his evidence by

5 videolink. It wasn't a problem. Despite the Defence not wishing that to

6 be the result, it was easily resolved.

7 Your Honour, those are our brief bullet-point observations, in

8 effect. Thank you for that opportunity.

9 JUDGE ORIE: Yes. Thank you. Any need to respond, Mr. Harmon?

10 MR. HARMON: No.

11 [Trial Chamber confers]

12 JUDGE ORIE: Before -- I do understand that Mr. Krajisnik would

13 like to address the Chamber. Before giving him an opportunity to do so, I

14 don't know whether -- Judge Canivell has drawn my attention to it. We

15 have a few questions for the parties. Perhaps I'll put those questions

16 first.

17 Mr. Stewart, you've drawn our attention to the consequences in

18 terms of time of either to continue or to restart the trial. When I gave

19 a rough estimate of what, in practical terms, it would mean either to

20 restart or to continue to hear the case, I had in mind that a new start

21 would be a real trial de novo, that is, to hear the case on from the

22 beginning, and that is what made me express my estimate. My question to

23 you is: Are you aware that that might be quite different if a

24 considerable part of the evidence - well, let's say the evidence - both 92

25 bis, but also the viva voce witnesses which you consider not to be the key

1 witnesses, that my estimate might have been quite different?

2 MR. STEWART: Your Honour, I can accept that readily, because, as

3 I made clear, I was only, in effect -- and I'm happy to accept Your

4 Honour's qualification and explanation of Your Honour's own remarks.

5 Because in adopting that, I made it clear that in effect I was only

6 adopting it from the point of view of what Your Honour expressed. Because

7 I will simply say, Your Honour, that the Defence submits that in practical

8 terms there should be and won't be any real distinction in the time needed

9 and the starting date whichever of these procedures is adopted. Because

10 if, as we apprehend, if it is to be Your Honour Judge Orie and His Honour

11 Judge Canivell to continue, then the only right and effective way to

12 proceed with this trial, whether it was a new trial with the two of Your

13 Honours and a new Judge - because he or she would be a new Judge anyway -

14 would be for that Judge to familiarise himself or herself with the case in

15 a way that would be broadly equivalent. It wouldn't be the technical

16 certification procedure if there were a new trial, but if the new Judge

17 were to be an equal-standing member of the Court with Your Honours, who

18 have lived with this case for such a long time, broadly equivalent amount

19 of time and preparation would be needed anyway. So our submission, Your

20 Honour, would be that in effect there isn't any real distinction as far as

21 starting date and time needed by the Judges concerned. But the corollary

22 of that is that I do accept Your Honour's observation just made.

23 JUDGE ORIE: Yes. Then I've got a question to Mr. Harmon. When

24 referring to the case-law of this Tribunal, you mentioned three

25 precedents. There was a distinction between your presentation and the

1 presentation of Mr. Stewart as far as he included the ICTR case-law and

2 whether you would consider this the case-law of this institution or of a

3 sister institution or case-law created by the Appeals Chamber, which is

4 common to both institutions. Because we have the Butare case. No. Let

5 me just -- the president in the case of Karemera, where the Appeals

6 Chamber did not accept a decision of the two remaining Judges to continue

7 the case. Did you -- I don't know whether you wanted to make any

8 reference to that or that you would consider that not to be a useful

9 precedent or ...

10 MR. HARMON: Your Honour, I would have to read that case. I have

11 not read that case, so I'm not in a position to comment on it.

12 JUDGE ORIE: Then for the --

13 MR. STEWART: Your Honour, we did bring -- it's always -- it's

14 always a question whether to load the Court with too much stuff. We did

15 bring with us one particular -- or two cases. Perhaps -- should we give

16 Your Honours the references to them? One was Karemera. Was that the case

17 Your Honour --

18 JUDGE ORIE: And the other one is the Butare. The case is called

19 Butare although it's not the name of one of the accused.

20 MR. STEWART: Your Honour, actually, the case we had in mind,

21 maybe it's a different one, is Rutaganda, which was in the Appeals

22 Chamber. And actually, that was not -- it was a case -- it was slightly

23 different. That was a case in which the Appeals Chamber made observations

24 about the importance of Judges seeing and hearing the witnesses giving

25 evidence when they give evidence. But Your Honours, we --

1 JUDGE ORIE: It's fine if you have any -- what I have at least

2 with me at this moment is at least a decision of the Appeals Chamber of

3 the 24th of September, 2003, which is a case which is usually called the

4 Butare case, I think, which the name of -- it's case number -- well, there

5 are many accused, but the first one mentioned is Pauline Nyiramasuhuko

6 with a declaration of Judge Shahabuddeen attached to it and a dissenting

7 opinion attached by Judge Hunt.

8 MR. STEWART: Well, Your Honour, we haven't got to that. We've

9 actually been mildly hampered by the ICTR website having closed itself

10 down over the last few days for refurbishment. My apologies. We simply

11 -- I'm not familiar with that case.

12 JUDGE ORIE: Yes. Mr. Harmon -- well, yes, my question -- your

13 answer was that you hadn't seen this case-law. I have one other question

14 for you, Mr. Harmon. You more or less expressed as a possibility that the

15 new Judge, if he would be appointed, if the case would be continued, could

16 request to hear or rehear a witness. Does it make any difference for you

17 if you consider that he of course could be overruled in such a request by

18 the two other Judges? I mean, do you have any specific views on the

19 position of a third Judge in that respect?

20 MR. HARMON: I assume that the Judges work quite collaboratively,

21 and if there was an important issue, obviously deference would be and

22 should be given to the new Judge. If he has an important point that

23 relates to a significant part of the witness's evidence, it would seem to

24 me that that Judge should be entitled to have that question answered

25 personally by the witness.

1 JUDGE ORIE: Yes. Then, Mr. Stewart, of course you emphasised the

2 importance of getting an impression of the demeanour of the witness and

3 apart from just reading his testimony. You didn't express yourself, which

4 has been an issue in some of these cases that we just mentioned, that a

5 new Judge, as mentioned by Mr. Harmon, could observe the demeanour of the

6 witness through means of video recordings of the hearing.

7 MR. STEWART: Yes, Your Honour. We accept that point, and if in

8 relation to any witness of any significance, the new Judge will spend that

9 time, and it's what might be called in the jargon real time; you've got to

10 sit in front of the video for the time it takes. If the Judge would do

11 that for the equivalent of those days, that would go -- it would be

12 unrealistic to submit anything else - that would go at least a

13 considerable part of the way to meet the point. We understand that

14 something around 90 to 95 per cent of the evidence does appear on the

15 video, though not all of it, for some reason, not a hundred per cent of

16 the witness's evidence is directly recorded. He's on camera always

17 somewhere, but it can be somewhere from an angle in the court. But in

18 excess of 90 per cent is available. It's not the same, Your Honour.

19 After all, it's not the same for evidence to be given by videolink. It

20 often is, but in principle, the starting point for the Court is it is not

21 the same. A live trial with live witnesses is the starting point. A

22 specific application has to be made, for example, in relation to videolink

23 evidence and specifically granted and justified. So it's not the same,

24 Your Honour.

25 JUDGE ORIE: From what I understand, there's not one videotape of

1 these proceedings, but there are several ones, one of them being the

2 composite.

3 MR. STEWART: That's our understanding, Your Honour. What I told

4 Your Honour was the answer of -- I made specific inquiries because I did

5 particularly wish to know exactly how it worked. That's my best

6 information, Your Honour, but Your Honour has huge experience of this

7 Tribunal.

8 JUDGE ORIE: Yes. Then finally, I would just like to make a short

9 statement. Mr. Stewart, you have addressed two issues, the one issue

10 being the completion strategy issue, and immediately after that, you

11 addressed the matter of resources, which of course there is some link.

12 Just to -- perhaps to make clear to you that in the present situation, no

13 one has ever sought to advise me or has suggested to me how to resolve the

14 present issue, let alone that I was ever addressed in the context of the

15 completion strategy. Of course, I have not discussed with many people the

16 present situation, even for -- I would say for most of my fellow Judges it

17 came as a complete surprise last Friday. But of course the matter has

18 been discussed in the staff, which is quite normal. But I would not have

19 given anyone ever an opportunity either to advise or to suggest any

20 solutions, because the first thing I would tell that in the video is that

21 a decision will be taken once all arguments have been heard, once every

22 aspect of the case would have been on our -- would have been thought over

23 carefully. And therefore, it could be continuation or a trial de novo

24 that was completely an open question, as far as I was concerned. I hope

25 that this accommodates you. It addresses the issue of the completion

1 strategy. Of course, as you observed yourself, resources is not exactly

2 the same, although they are perhaps not totally unrelated.

3 Let me just confer with the registrar.

4 [Trial Chamber and registrar confer]

5 [Trial Chamber confers]

6 JUDGE ORIE: We noticed that perhaps not every one of us has seen

7 exactly the same material. I would like to give an opportunity for

8 another 40 minutes to the parties to exchange whatever material they have

9 and for the Chamber also to read any decision that we had not read yet.

10 And therefore, I would like to invite Mr. Stewart again to give the

11 details of that one case that he mentioned. And then to give an

12 opportunity to the parties to make any further observations after this 40

13 minutes. So we'll then restart at 5.00 and then have a short subsequent

14 hearing.

15 MR. STEWART: Your Honour, if I were to hand up -- it's not the

16 entire case, which is quite long, but if I were to hand up the extract,

17 then it also gives Your Honours the reference on the front.

18 JUDGE ORIE: Yes.

19 MR. STEWART: May I do that.

20 JUDGE ORIE: Yes. I take it that the Prosecution would get a

21 copy.

22 MR. STEWART: Of course. I have enough copies for everybody, Your

23 Honour.

24 JUDGE ORIE: Okay. And do you have a -- it's turned out that

25 Mr. Stewart was not familiar with the appeals case of -- I don't know

1 which one, but ...

2 MR. STEWART: Not familiar; I think I've never even heard of it,

3 Your Honour.

4 JUDGE ORIE: That's your interpretation, Mr. Stewart.

5 MR. STEWART: That's my position, Your Honour, so ...

6 JUDGE ORIE: Mr. Stewart, at least for the Appeals Chamber, I

7 think the Karemera case and the what is usually called the Butare case, as

8 I just mentioned, might be of some interest to spend time on during the

9 next --

10 MR. STEWART: I'm obliged, Your Honour. It was paragraph 21

11 particularly in the extract we've just handed up to Your Honour.

12 Paragraph 21 is the particular paragraph we wished to draw your attention

13 to. And in Karemera, paragraph 60 was on the similar point about

14 witnesses, demeanour of witnesses.

15 JUDGE ORIE: Yes.

16 MR. STEWART: But thank you, Your Honour, for that other

17 reference.

18 JUDGE ORIE: We'll adjourn until 5.00, and I expect then the

19 parties to be brief in any further submissions, so that we could conclude

20 not later than perhaps 20 minutes past 5.00. We adjourn until 5.00.

21 --- Recess taken at 4.22 p.m.

22 --- On resuming at 5.02 p.m.

23 JUDGE ORIE: Mr. Stewart, I noted that the Rutaganda case is not a

24 specific 15 bis case but gives in general terms in paragraph 21 some

25 observations on the --

1 MR. STEWART: Yes. That's entirely correct, Your Honour. Yes,

2 that was the point of that case, yes.

3 JUDGE ORIE: Mr. Stewart, would you like to make any additional

4 submissions?

5 MR. STEWART: Your Honour, thank you. I'll just make brief

6 observations on that case. We're very grateful. We received a lot of

7 practical help from the Prosecution, and everybody, I think, in getting a

8 copy of that quickly, and within our own team. In the end, I was flooded

9 with copies.

10 The -- Your Honour, the -- it seems to be in about paragraphs 22

11 onwards and 24 onwards. Your Honours have a copy of that judgement, I

12 understand. So we -- this particular -- a lot of it is to do with issues

13 which don't arise on this particular hearing. And at page -- paragraph

14 25, it begins: "There is a preference for live testimony to be heard by

15 each and every Judge, but that does not represent an unbending

16 requirement." Well, we don't go that far, Your Honour. "The Rules and

17 cases show that exceptions can be made." And then just on this particular

18 exception that the Appeals Chamber mention, "The exceptions may relate

19 even to evidence involving an assessment of demeanour, various ways being

20 available to assist a new Judge to overcome any disadvantages."

21 And then it said: "The appellants have not attacked the procedure

22 prescribed by Rule 15(A) or 15(B). Under these provisions, a witness

23 could be heard by two Judges." It actually means 15 bis (A) and 15 bis

24 (B) there. That's the only way one can make sense of that. "Under these

25 provisions a witness could be heard by two Judges, that the procedure is

1 in effect available only over a short period of time is not relevant to

2 the principle involved."

3 The observation we make there is that, yes, it's correct, and we

4 recognise that, technically speaking, within 15 bis (A), if a Judge is

5 absent for a short time within the strict wording of the Rule, a witness

6 may be heard over that five-day period, and at its extreme, it could be an

7 absolutely critical witness. But, Your Honour, a point we mentioned

8 earlier is that 15 bis (A) is itself a discretionary matter, and it allows

9 it, and one would expect in the ordinary course, that a witness who was

10 critical and whose demeanour was critical would lead a Trial Chamber to

11 say, in respect of 15 bis (A), that it wasn't a suitable case to deal with

12 it in the absence of a Judge in the short term. So --

13 JUDGE ORIE: I made a note for myself, Mr. Stewart, saying that

14 your interpretation of Article 15 bis mainly focuses on the aspect of

15 confirming the importance of the three Judges rather than the aspect of

16 the exceptions contained therein.

17 MR. STEWART: That's absolutely right, Your Honour, and my

18 submission in relation to paragraph 25 -- this is, after all, what the

19 Appeals Chamber were saying in this particular case, so in a sense it's

20 part of their -- well, it is part of their reasoning here. But when one

21 focuses specifically on what they're saying here, we suggest that this --

22 the existence of that technically possible procedure under 15 bis (A)

23 doesn't really support the conclusion that there's -- or doesn't represent

24 any weakening of the basic preference for live testimony to be heard by

25 each and every Judge, and that's consistent with what very helpfully Your

1 Honour has entirely accurately quoted back to me as our submissions

2 earlier.

3 The -- then at paragraph 30 -- we don't have any particular issue

4 with the next few paragraphs, which seem to be consistent with submissions

5 that we've made in relation to -- not on detailed reading, Your Honour,

6 but they appear to be consistent with the submissions we've made.

7 Paragraph 30, then, "The position being taken by the appellants is

8 that the ability to evaluate credibility on a point of demeanour is

9 essential to there being a fair trial, as mandated by the supreme

10 instrument, namely, the Statute." And this was a twist in this case. "In

11 the absence of video-recordings, it will not be possible for the

12 substitute Judge to make such an evaluation." And then subject to the

13 following, that submission is correct. But then the matter becomes

14 confused by the fact that there weren't video-recordings, but the point

15 had not been taken in the court below, and as we read paragraph 31, it was

16 therefore in effect not considered on appeal because it hadn't been taken.

17 So the absence of video-recordings to some extent dropped out of the

18 picture. But the Tribunal not entirely perhaps, but the point that we

19 would like to make an observation on, is then it does have a bearing on

20 what was discussed here this afternoon. Last few lines of paragraph 33:

21 "Failure to review video-recordings which because they are non-existent

22 do not form part of the record of the proceedings..." Well, impossible to

23 quarrel with that bit of logic: "... does not mean that the Judge has not

24 familiarised himself with the record of the proceedings as the record

25 stands. Therefore, does not disqualify him from joining the Bench. He

1 may decide to join the Bench with any questions of demeanour being left to

2 be resolved in the manner following." So, so far, no quarrel with that,

3 Your Honour. The recomposed Trial Chamber may recall witnesses so as to

4 enable the substitute Judge to assess their demeanour on particular

5 points. And then entirely correctly it's pointed out that any testimony,

6 including recalled testimony, the new Judge hears as a member of the

7 recomposed Trial Chamber and recall power lies within the competence of

8 the whole Trial Chamber. So it's not for the two Judges to authorise it

9 in effect in advance. It's, technically speaking, done by a majority, but

10 it's for the whole Trial Chamber.

11 But the -- they go on then in paragraph 35, last few lines: "The

12 recomposed Trial Chamber may on a motion by a party or proprio motu recall

13 a witness on a particular issue which in the view of the Trial Chamber

14 involves a matter of credibility which the substitute Judge may need to

15 assess in the light of the witness's demeanour."

16 Your Honour, our submission is that paragraph 34 is, in effect,

17 what we have been saying, that -- but with this qualification, perhaps:

18 That the Defence would ask for a new trial, among other things, because,

19 although if the new Judge says: "Well, I really would like to see this

20 witness," first of all, it would then be a discussion. This would be

21 entirely proper. There would then be a discussion among the three Judges,

22 and the two Judges who had been there all along would one expect naturally

23 to say: Well, we've seen this witness, and this, that, and the other and

24 so on and discuss it. The -- what we suggest is that in those cases,

25 although the Judges are the Judges and make their decisions as to what

1 witnesses they need to hear, that more significance should be attached to

2 a party, and in this case it's the Defence, but it could be the

3 Prosecution, who is saying: We regard this witness as an important

4 witness on which we, in this case the Defence, would wish all the Judges

5 to hear and see this witness.

6 The initiative, of course, can come from the Bench, and the

7 decision on recall of any witness is for the Bench. The difference, Your

8 Honour - and I face this squarely - the difference when we have a new

9 trial is that in effect the starting point is that a witness gets called,

10 and we have indicated a very large number of areas where we would accept,

11 whether it's a concession or what, but we would accept a modification of

12 that position and not ask for witnesses to be recalled. But in relation

13 to that very small number of witnesses, we would then be saying: No, it

14 shouldn't be left to the discretion of the Trial Chamber then as to

15 whether the new Judge wishes to hear the witness, to assess his demeanour,

16 or whether the Trial Chamber thinks he should be recalled. The prima

17 facie position, the starting point should apply in relation to those

18 witnesses and they should give evidence. And that is a feature of the new

19 trial.

20 The -- when -- paragraph 36 of this judgement, a slightly

21 different point: "The Appeals Chamber has considered whether a rehearing

22 as opposed to a continuation could be facilitated by recourse to Rule 92

23 bis (D), which provides for the admission of transcripts of evidence. It

24 notes, however, that the procedure does not apply in relation to the acts

25 and conducts of the accused and may not, therefore, be adequate. The

1 concern of the appellants with matters of demeanour strongly suggest that

2 some or all of the 23 witnesses who testified have done so in relation to

3 the acts and conduct of the accused."

4 Well, Your Honour, that's again entirely correct as a matter of

5 technical procedure, and we mentioned it in our submissions.

6 Nevertheless, we have also indicated that in -- because it is, after all,

7 it was open to the Defence then to waive that particular objection, and if

8 the Trial Chamber then considers it proper, and there would be no reason

9 in this case, if the Defence waived its objection, as we indicated that we

10 would do in relation to a number of witnesses, as in relation to that

11 restriction in 92 bis, that gets over that particular problem in relation

12 to those witnesses. In other words, a more extensive use could be made of

13 92 bis and transcripts of evidence of the proceedings which have taken

14 place so far. And I'd be going over the same ground again: We've

15 indicated to Your Honours quite specifically in relation to lists of

16 witnesses how we submit that that should work.

17 So the particular difficulty or obstacle, if you like, that is

18 mentioned in paragraph 36 of this judgement doesn't apply in terms, given

19 the more flexible approach to a new trial that we have indicated.

20 So, Your Honour, it -- this -- there's nothing in this decision

21 which contradicts any of the principles or any of the submissions put

22 forward by the Defence earlier. We accept the position, but subject to

23 our submissions, that live testimony by each and every Judge cannot be and

24 plainly is not under the Rules an unbending requirement, but it doesn't

25 mean, and that's entirely consistent with the whole tone of this Appeals

1 Chamber judgement that we're looking at now, it doesn't mean that it

2 doesn't remain very important.

3 JUDGE ORIE: Thank you, Mr. Stewart.

4 Mr. Harmon, any further submissions?

5 MR. HARMON: Yes, Your Honour. I don't intend to resubmit my

6 previous -- all of my previous submissions. In reviewing this case, Your

7 Honour, this case seems to be entirely consistent with the proposition

8 that is inherent in 15 bis (D); that is, the two issues that we confront

9 in this hearing are, one, whether it's in the interests of justice for a

10 third Judge to be substituted in at this point in time in this case. And

11 the second issue is whether a Judge is capable of familiarising himself or

12 herself with the record that we have in this case. And if, upon

13 certification, he can make that assertion, then he should be substituted

14 in.

15 This case, the Butare case, had elements that do not exist in this

16 case. My reading of this case, there were no videotapes, and so the issue

17 of demeanour was more difficult and problematic from the point of view of

18 assessing demeanour. However, that was not dispositive of the Court

19 finding that the procedure used and the substitution was proper. What was

20 important in this decision is found in paragraph 33, that the failure to

21 review in this particular case video evidence wasn't fatal, that a judge

22 can familiarise himself with the trial record and can therefore assert and

23 certify that he's in a position to join the particular Trial Chamber.

24 Paragraph 34 supports our previous submission that the recomposed

25 Trial Chamber may recall witnesses. We had a discussion about that,

1 during my submissions we continued to make that submission to the Court.

2 Where, in paragraph 34, it says: "Where video-recordings are available,

3 an absent Judge who reviews such recording does so as a member of the

4 Bench."

5 So in our particular case, this case, Your Honour, there are

6 video-recordings available. There is the record of the proceedings

7 itself. It's our submission to this Court that the interests of justice

8 do require that the case have a substitute Judge, that there are materials

9 that are available sufficient to enable that Judge to review them properly

10 and make the proper certification, and we would urge this Court to permit

11 a substitute Judge to sit in judgement of Mr. Krajisnik for the remaining

12 portion of the Prosecution's case and for the Defence case.

13 Thank you.

14 JUDGE ORIE: Thank you, Mr. Harmon.

15 Last Friday I said, Mr. Krajisnik, that if you read the wording of

16 Rule 15 bis, and if you compare that with many other Rules where often it

17 is said the Defence is entitled to, and there it specifically says

18 something about the accused, that I wanted to be sure that of course your

19 view and your non-consent, as we know now, has been brought to the

20 attention of the Chamber. If, however, there would be anything you'd like

21 to add at this moment, and I invite you not to start any debate with

22 counsel, because you had better have any debate outside of this courtroom,

23 and I also understood that you have had ample opportunity to discuss the

24 matter with counsel, but I would not refrain you from addressing the

25 Chamber if you'd like to do that at this moment. Where I said "the

1 Chamber," I should say the two remaining Judges.

2 THE ACCUSED: [Interpretation] Good afternoon, Your Honours. Good

3 afternoon to all. First of all, I wish to thank the Trial Chamber,

4 although there are only two Honourable Judges here, for allowing me to

5 address them.

6 If we use the terminology from economics, I would say that this is

7 a temporary calculation or a sum-up of the trial heretofore. I wish to

8 say only a brief -- a couple of words that would be useful for the

9 continuation or for the future of our trial.

10 You have heard out my counsel Stewart, and of course it is only

11 natural for me to consult with my counsel. I wish to say that I endorse

12 his submissions and I would just briefly like to explain something that

13 might clarify my decision to deny my consent.

14 Your Honours, I have spent a long time in prison here, and it

15 would be only normal for me to wish to end this proceedings as soon as

16 possible, because any further delay is contrary to my interests. But, as

17 Mr. Stewart has said here, I would of course wish to leave the prison

18 tomorrow. However, the proceedings have to take their course. The reason

19 why I opted for a rehearing is only one, but I wish to add to what

20 Mr. Stewart has said.

21 I have followed the proceedings from my perspective, and a great

22 many things have not been clarified here. Although many helpful witnesses

23 have been called here, in a rehearing, these witnesses would shed more

24 light to the events that had taken place in Bosnia-Herzegovina during the

25 war. For this reason, I believe it would be helpful for a retrial to take

1 place, because it could prove to be helpful for all sides; the Defence,

2 the OTP, and the Trial Chamber alike, because it would help expedite the

3 proceeding.

4 Because the start of the trial was rushed, the Defence was unable

5 to prepare sufficiently, and there have been quite a few flaws committed

6 on our part. The Defence would require a longer period of time, which

7 could be beneficial for it, and this could be done in a new trial, where

8 the two of you Honourable Judges would be present, along with a third

9 Judge, and before such trial would start, the Defence would have enough --

10 ample time to prepare itself.

11 I would turn to another issue that touches upon the fairness of

12 trial. I wish to go back to what Prosecutor Mr. Harmon said. At this

13 stage, the Prosecution would have to use the opportunity to amend the

14 indictment and withdraw a number of allegations that were deemed

15 corroborated before the proceedings reached this stage.

16 Another matter that I would like to mention here, Your Honours, is

17 the following: In the forthcoming period I wish to take an active part in

18 these proceedings, which I have not taken so far. I will abide by your

19 wish not to repeat some of the submissions stated here by my counsel, but

20 I do wish to reiterate my request to put certain questions to witnesses

21 during their testimony here and I would like you to allow me to address

22 this issue at a later stage.

23 JUDGE ORIE: Yes, Mr. Krajisnik. Because that's a matter which is

24 not to be addressed at this moment, because it's beyond the issue. You're

25 talking now about the modalities of the future conduct of the case,

1 whether that would be after restart or whether it would be after we would

2 have decided to continue that case. And that's something that should be

3 dealt with at that moment and not at this stage. Therefore, your active

4 part is not something to be discussed at this moment. I do understand

5 that --

6 THE ACCUSED: [Interpretation] If I may be allowed, Your Honour, to

7 say only a few words.

8 JUDGE ORIE: Not on the issue of your active involvement in the

9 case, because that's not a matter to be discussed at this moment. The

10 issue at this moment at stake is the -- whether it's in the interests of

11 justice, whether it would be served or would be better served by

12 continuing rather than to hear the case all over again. That's the limit

13 of what we can discuss at this moment.

14 But at least I do understand that you fully support the position

15 taken on your behalf by Mr. Stewart. Is there any other matter you'd like

16 to bring to our attention?

17 THE ACCUSED: [Interpretation] I will only address you with a few

18 more words. I did not wish to discuss here the different reasons why I

19 would like to take an active part in the proceedings. Rather, I wanted to

20 say that in a rehearing, I would have more opportunity to do so. However,

21 by way of conclusion, I would like to say the following:

22 In a new trial, I would have a better chance to prove a number of

23 events and facts that we were unable to prove so far. I am aware of the

24 fact that the final decision lies with the Trial Chamber and the Tribunal,

25 but I am convinced that whatever your decision will be, we will have a

1 fair trial. However, I appeal to you to have the understanding to

2 consider the reasons put forth by us behind our request for a retrial.

3 Furthermore, I would also appeal to you to set aside some time for

4 us to deal with some of the issues that have remained outstanding to this

5 day, like, for instance, the issue of a laptop and so on and so forth.

6 JUDGE ORIE: Yes. That's certainly something that will get proper

7 attention once a decision has been taken, once a final decision has been

8 reached as to whether the case -- the hearing of the case will be

9 continued or that we would rehear the case de novo, as it is said in

10 Latin. If there are no further submissions --

11 MR. STEWART: I'd only like to say this, that despite

12 Mr. Krajisnik saying that a rehearing would present a better opportunity

13 and take an active part, I nevertheless maintain that submission on his

14 behalf that that's the preferable course.

15 JUDGE ORIE: Yes. I do understand your position, Mr. Stewart.

16 We will adjourn, as again it's said in Latin, sine die, and the

17 two remaining Judges will consider whether or not it's appropriate to give

18 a decision as they could take under Rule 15 bis (D).

19 We stand adjourned.

20 --- Whereupon the hearing adjourned sine die

21 at 5.29 p.m.

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