1 Thursday, 26 May 2005
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 10.14 a.m.
5 JUDGE ORIE: Madam Registrar, would you please call the case.
6 THE REGISTRAR: Good morning, Your Honours. This is case number
7 IT-00-39-T, the Prosecutor versus Momcilo Krajisnik.
8 JUDGE ORIE: Thank you, Madam Registrar.
9 First of all, apologies to the parties that we had a start even
10 later than we had in mind, but the Chamber, both yesterday and this
11 morning, took quite some time in deliberating on how to proceed.
12 Before we do that, the Chamber finds it of utmost importance to
13 explain to the parties what in the view of the Chamber the status quo is,
14 and, in that respect, I would first of all like to draw the attention to
15 the words with which Mr. Krajisnik yesterday addressed the Chamber.
16 He said, and I quote, on the basis of the provisional
17 transcript, he said, "I've made a decision very unwillingly to take care of
18 my own defence and to participate in this trial in an active, rather than
19 in a passive way, as I am doing now, and I do hope I'll have further
20 opportunity to explain to you why all this happened. My Defence team at
21 the moment is unable to assist me in establishing the truth. I'm convinced
22 of that because of the situation and the conditions," and then he
24 Mr. Krajisnik also addressed a letter to the Registrar, which
25 was received by the Registrar yesterday. A formal translation has been
1 prepared, and the Registrar has forwarded that letter to the Chamber.
2 The letter reads in its relevant part, and I again quote, "In
3 line with Rule 44(G)" -- and it has been explained that this must be a
4 mistake and reference is supposed to be made to Rule 44(F) -- "In line with
5 this Rule of the Rules of Procedure and Evidence, I have decided to conduct
6 my own defence in future proceedings."
7 MR. STEWART: Your Honour, I think it's 45(F), isn't it?
8 JUDGE ORIE: Oh, 45. Yes. Then I should have noticed that.
9 Thank you for correcting me, Mr. Stewart.
10 And then further in the letter we read: "I would like to
11 request that you" -- and he's then referring to the Registrar -- "inform me
12 of the rights of a defendant who is not represented by counsel but is
13 conducting his own defence."
14 The two passages I've just quoted indicate that, at least at
15 this moment, Mr. Krajisnik is uninformed and uncertain about his course of
16 action. An application for self-representation must be made knowingly and
17 intelligently. The evidence before the Chamber suggests that that is not
18 so. The Chamber is unable at this moment to recognise Mr. Krajisnik's
19 application to represent himself as being made validly. Therefore, the
20 application of Mr. Krajisnik as it stands now is ineffective, especially in
21 respect of Rule 20 quoted yesterday of the -- I now forgot the exact text,
22 but the Rules on the assignment of Defence counsel, and therefore the
23 status quo is - I'm saying at this moment - that Mr. Krajisnik continues to
24 be represented by counsel appointed by the Registrar.
25 That's the status quo of which the Chamber found it important
1 that the parties were aware of that.
2 I now turn to the second issue. The situation is complex and
3 may have huge consequences. The Chamber is wondering whether it can deal
4 with the situation at this very moment or whether we would have to schedule
5 a Status Conference in which all aspects would be covered: legal,
6 practical, everything. Such a Status Conference would need thorough
7 preparation, not only by the parties but also by the Chamber itself.
8 In order to finally determine whether we should remit this
9 matter to a Status Conference, the Chamber would like to have some further
10 clarifications of Mr. Krajisnik himself, especially on the points I just
11 mentioned, where Mr. Krajisnik said that he was very unwilling but that he
12 had to take that decision to represent himself, and where he said that he
13 hoped he would have a further opportunity to explain why all this happened.
14 Before the Chamber determines whether or not to remit the matter
15 to a Status Conference, the Chamber would like to hear from Mr. Krajisnik
16 further clarifications in this respect. A brief possibility will also be
17 given later to make any comments on what Mr. Krajisnik says.
18 Up until this moment, no one has asked for private session. The
19 Chamber does not think that there's any need, at least proprio motu, we
20 would not decide to deal with the matter in private session. But if anyone
21 would take a different position, the Chamber would like to hear.
22 Mr. Krajisnik, you'll have an opportunity to further explain
23 what moves you, why you are taking a decision, and at the same time you say
24 you're unwillingly doing that. We'd like to give you an opportunity to
25 further explain that to the Chamber.
1 THE ACCUSED: [Interpretation] First of all, Your Honours, allow
2 me to thank you for giving me the opportunity to address you.
3 I've gathered that you are meant to make a decision to have a
4 special Status Conference. My modest suggestion would be that it would be
5 a good idea for the Status Conference to be organised not only to give me
6 the opportunity to tell you about my reasons. I've made the decision to
7 conduct my own defence, and you know that it is always somehow an imposed
8 decision. I've reached that decision unwillingly, but I'm very firm in my
9 intention. And therefore I would really like to appeal to you to organise
10 a Status Conference so that I can come up with all the arguments. It's a
11 very complex situation, but it can be explained within a short period of
13 As to whether it should be a public -- rather, an open or a
14 private session, I don't mind an open session. Quite the contrary. But I
15 believe that the media often manipulate information pertaining to this
16 Court, to justice, to injustice, and therefore I'm against this media
17 manipulation, and that's why I keep suggesting private sessions, because I
18 trust you to reach the right decision at the end of this process. If I had
19 no trust and confidence in you, I would obviously want as much media
20 attention as possible. From the very start, I've only asked you to do one
21 thing: I've entered a not guilty plea, and I've asked you not to believe
22 me, to take my word for it, but to make it possible for me to establish the
23 truth, and what I've seen here is that we're on the wrong path. We're not
24 moving towards the truth here, and that's the main explanation. And I do
25 apologise for causing inconvenience, but you will have to understand my
1 concerns as well. I am fully aware of my indictment, and of course I need
2 to use all the means available to defend myself. I'm not in favour of
3 drawing too much attention, and I only want to use the legal means
4 available. And I'm sorry to have to use such means.
5 I mean, as to my Defence team, I did not try to pass a value
6 judgement of any sort. They are good lawyers, no doubt, but they don't
7 conduct my defence well enough. So that's what I have to say at the
9 I mean, I do know that Judge Orie is not in favour of lengthy
10 explanations, but if necessary I can go into every single detail, but I
11 would need slightly more time for that.
12 Perhaps I've been going a bit too fast, and I do apologise for
14 JUDGE ORIE: Mr. Krajisnik, this raises immediately the
15 question: What would you like to do which you consider impossible if
16 assisted by counsel? We have heard several times about your desire, your
17 wish to put questions to witnesses. Is it that you would feel limited in
18 this respect? The Trial Chamber tries to find out what exactly -- because
19 on the one hand you say "unwillingly" because it seems that you feel
20 handicapped by counsel, where at the same time you say they're skillful
21 lawyers. So, therefore, what handicaps you experience at this moment that
22 you expect not to experience if you would conduct your own defence fully on
23 your own?
24 THE ACCUSED: [Interpretation] First of all, Your Honours, when we
25 talk about truth, I've asked you on a number of occasions for the
1 opportunity to address the Trial Chamber. I've also asked for the
2 opportunity to put questions and submit documents to a certain number of
3 witnesses who have been called here. Now we've got a whole range of false
4 witnesses. I do apologise for using such strong language, but more than
5 half of them are not even aware of the fact that they're not telling the
6 truth because things have gotten out of hand. I don't know how they're
7 being proved.
8 I just want to submit the documents to them. And most of these
9 people are, no doubt, honest and they will say, No, no, no, I didn't know
10 about this. I'm sorry. So my problem is I don't want to take over my
11 defence, but I want to be able to put to you the information that I have in
12 my possession and things that I have participated in.
13 If I may, I would just like quote two examples. You will
14 remember Mr. Djokanovic. He came here and I thought he was a friend of
15 mine, and he's embittered and he's a potential indictee. And all I was
16 asking was to say something. He said he got to Pale on the 16th of June.
17 And then there were reports, apparently, on some crimes carried out at
18 Zvornik. All I was going to tell him, on the 16th there was a government
19 meeting at Pale and one of the items on the agenda was the situation at
20 Birac and a committee was set up that visited Birac and thereupon Karadzic
21 and Mladic went there. And then I was going say: Now, at Zvornik, where
22 crimes had been perpetrated, well, that's where the supreme military court
23 and the prosecution are based. Why didn't you go and tell them Krajisnik
24 and all these other people don't want to do anything about this? Why do
25 you not go to them? I wanted to show him the minutes of the Assembly
1 meeting where I was chairing the meeting and he said there was no crime
2 committed and he was attacked by an MP. You got the impression that nobody
3 took any steps at all. It turned out like that. And my wife was very ill
4 at the time and she died later on, and so I was supposed to check out
5 Karadzic and Mladic and all the others. And obviously it can't be done if
6 you don't show the relevant documents. But I did submit all the documents
7 to Mr. Stewart, they were in Serbian, okay; there's too much material. And
8 he just didn't manage to deal with all that.
17 JUDGE ORIE: [Previous translation continues] ... but I think
18 from what you told us until now it seems to me that what you are seeking
19 mainly is to have a broader opportunity to confront Prosecution witnesses
20 with material you think is relevant and could show that their testimony is
21 not reflecting the truth, and also that by putting additional questions to
22 those witnesses, that you would seek to achieve that same aim.
23 Is that the main issue for you, that a more active participation
24 and some more room to be actively involved in the cross-examination of
25 Prosecution witnesses, because that's the stage we are in at this moment,
1 that that's really what's bothering you, and that you are seeing self-
2 representation as the only way to achieve that?
3 THE ACCUSED: [Interpretation] I'm telling you about the things
4 that were in the past. I have made my decision to represent myself because
5 I'm facing a number of problems. I'm trying to explain why I made this
7 But on top of this problem, there are other things. You've
8 asked me about my lawyers. You have not asked me about what is positive
9 about them; you only asked me about what their handicaps are.
10 A second problem, let me just tell you this about Mr. Stewart:
11 You know that the witnesses that we're supposed to see -- I am going to
12 give you just one more example, and then I hope you will make your
13 conclusion based on that. The witnesses come here, and, for example, they
14 will testify today, and they are not telling the truth; I know that they
15 are not telling the truth. We have to act urgently, and I make a CD, I
16 send it urgently to you. Our investigators verify whether this is the
17 truth, and on the following day Mr. Stewart cross-examines such a witness,
18 and then the truth is established. The issue of investigators is a very
19 complex one that I need to explain.
20 I said to Mr. Stewart, Only Jesus Christ could feed so many
21 people with only five loaves of bread. It can't be done without
22 investigators. And now that we have a very complex issue, at this moment
23 when I approached the Registry, I sent you a piece of paper saying that I
24 am -- that I want additional material for investigators; can we have
25 additional resources for the investigators. But they refused that request
1 and they tell me, You have your lawyers.
2 When I enter my room, it's like a hovel. I would need a special
3 room in the prison. And the fact that I have lawyers is becoming more of
4 an obstacle than a benefit. I am always in favour of a compromise;
5 however, I have made my analysis. In the economics, there is the account
6 of balances, and there's more minuses than pluses. So if you need
7 additional information, I believe it would be useful for the proceedings.
8 You want to establish the truth, but you are unable to do that. You cannot
9 establish the truth based on the -- the stories that you hear. And even if
10 I were to establish the truth, I wouldn't be able to -- to do that on the
11 basis of the testimonies.
12 Let me give you the example of Mr. Bjelobrk. If we have to do
13 that in closed session, I am in favour of that. I wanted to give him a
14 document showing that I voted in favour of your proposal. In his head, he
15 had it that he -- that I voted against. I've read hundreds and hundreds
16 and hundreds of pages, and all I want from you is for the truth to be
17 known. It is not in the best interests of this Trial Chamber to base their
18 judgement on false testimonies. I'm not guilty, but I'm not asking you to
19 take my words for granted. That's why I made my decision to represent
20 myself and -- because the things as they stand now are not good.
21 I have prepared a document. I want to show you that I am
22 serious. I have prepared and explained for the Judges and for the
23 Registry, to explain the reasons behind my decision.
24 JUDGE ORIE: Thank you, Mr. Krajisnik.
25 First of all, just to verify that there's no misunderstanding.
1 In respect of Mr. Bjelobrk, I think there is a decision there on which the
2 Chamber does not disallow to present further documents when Mr. Bjelobrk
3 will be called for further cross-examination. So there you may already
4 feel that the Chamber is certainly seeking to provide you with a fair trial
5 and also to allow you to introduce documents that you consider important.
6 Let me first ask whether the other Judges have any questions to
8 [Trial Chamber confers]
9 JUDGE ORIE: Mr. Krajisnik, are you aware that if you would
10 represent yourself, that -- where you say what you intend to do, that
11 you're also bound by Rules of Procedure that are valid in this courtroom?
12 So I'm just trying to find out what you're seeking, whether you're
13 understanding what would be possible.
14 For example, if you say "false witnesses," apart from whether,
15 of course, the Chamber considers them to be false witnesses, but are you
16 aware that, on the one hand, by cross-examining such a witness, that if you
17 would represent yourself, that this is a totally legal way of establishing
18 that the witness did not, whether intentionally or for other reasons, did
19 not tell the truth, but at the same time that there are limits in the
20 procedural ways through which you could do that? Do you understand what I
21 mean? We try to find out what moves you to represent yourself. You've
22 explained to us what you'd like to do to establish why these witnesses
23 would not help us come to the truth. At the same time, the Chamber is not
24 fully aware of whether you know exactly where the procedural limits for
25 that would be.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 THE ACCUSED: [Interpretation] Your Honours, I have listened to
2 Judge Orie, who says that we are professional -- that they are professional
3 Judges. I'm sure that if I do something that is against the procedure, you
4 will warn me. That is why I asked from the Registry to -- to hire somebody
5 who would be my advisor, who would advise me so as not to offend the Trial
7 And as for the witnesses, let me just say briefly I have never
8 used any derogatory words like "balija," the "Turks," although Serbs have
9 always been referred to as Chetniks, but this is not part of my vocabulary.
10 I don't want to offend anybody.
11 And let me just say why I need investigators. I want to find an
12 investigator who will be able to locate Mladic and Karadzic, those who are
13 hiding in the forest. And then they will be able to say to the Prosecutor
14 whether Momcilo Krajisnik was a member of the Presidency.
15 If I am guilty, then I have to be punished. (redacted)
21 MR. STEWART: Well, Your Honour, it seems that some -- some
22 fairly limited redaction there would --
23 JUDGE ORIE: The redaction is prepared by Madam Registrar, and
24 I'm waiting for the ...
25 Please proceed, Mr. Krajisnik. I interrupted you.
1 THE ACCUSED: [Interpretation] The other day there was a
2 foreigner testifying before this Trial Chamber who got mixed up on three
3 activities. He said that Momcilo Krajisnik participated in the
4 negotiations about surrendering the airport. The lawyer, the French
5 lawyer, the president of France, Mitterrand, landed on the day when the
6 airport was being surrendered, and the whole world knows that the only
7 thing I was supposed to do was to say this didn't happen on that day. He
8 got confused. On the 1st of June, we saw each other, that's what I was
9 supposed to tell him, and how it happened. And that's why I'm asking you -
10 - this is too short a time for me to tell you all the things that have been
11 a problem to me. This is why I did not make such a decision with a light
13 As for the procedure that you asked me for, I would like to say
14 that I'll do my best to respect the procedure and the Rules of Evidence. I
15 believe that the truth has to prevail, I trust in God, and if the truth
16 cannot prevail, then we are all doomed.
17 Everybody has to be taken to task for the things that they did
18 if they are established as the truth. Even Momcilo Krajisnik has to do
20 JUDGE ORIE: Yes. Thank you for those observations, Mr.
22 [Trial Chamber confers]
23 JUDGE ORIE: Mr. Krajisnik, if you would have an opportunity to
24 play a bigger role in presenting documents, in putting questions to
25 witnesses, and if the practicalities that are bothering you in your defence
1 would be removed or at least would be -- if a solution would be found for
2 that, would you insist on not being represented by counsel?
3 MR. STEWART: Your Honour, is -- is Mr. Krajisnik --
4 JUDGE ORIE: Listen, Mr. Stewart, I asked Mr. Krajisnik to
5 answer a question, and if you would like to make any observations, you can
6 do so after that.
7 Mr. Krajisnik.
8 THE ACCUSED: [Interpretation] I have to repeat once again: I
9 respect the Trial Chamber, and whenever I have to say something that the
10 Trial Chamber doesn't like, I feel uncomfortable. Whatever I've said here
11 is not enough for you to understand my problem, and I have to adhere to my
12 decision. My decision is a very complex one. In the future, I am in
13 favour of everything that might make these proceedings as smooth as
14 possible, and that is why I'm sorry that I have to say no to your question.
15 I am used to you, and if anybody has to be replaced or removed,
16 I would find it uncomfortable, and that is why my decision was to have --
17 again, to establish where I was, because a lot of things have been
18 admitted. I believe that in this situation it is much better for me to
19 represent myself than to be represented by anybody else under the
20 conditions as they are now.
21 JUDGE ORIE: And if the conditions would be different?
22 THE ACCUSED: [Interpretation] Could you please organise a Status
23 Conference at which everybody would present their arguments. I believe
24 that after that you'll be able to make the best possible decision as a
25 result of that Status Conference.
1 [Trial Chamber confers]
2 JUDGE ORIE: Mr. Stewart, as I announced before, you would have
3 an opportunity to make any observations at this stage. And I take it that
4 it's clear what the Chamber explores at this moment, and that is whether
5 the matter should be remitted to a Status Conference and then a Status
6 Conference which would deal with both the factual circumstances, the legal
7 issues at stake, the positions of everyone involved.
8 Please proceed.
9 MR. STEWART: Well, Your Honour, clearly those issues need to be
10 explored. I'm not, I must say, 100 per cent clear at the moment why the
11 notion of a Status Conference is being considered as opposed to simply
12 dealing with these matters as part of the -- the hearing. Maybe it's a
13 distinction of no practical effect.
14 JUDGE ORIE: Yes. If you would have any specific views on
15 whether we should call a Status Conference or whether it should be part of
16 the hearing, of course that's a matter you may address as well.
17 MR. STEWART: Well, as I understand it, Your Honour, both are
18 public hearings. The form is, for practical purposes, the same.
19 JUDGE ORIE: Yes. Well, let's, then, call it a hearing
20 specially devoted to the issue, if that resolves the problem.
21 MR. STEWART: Yes, Your Honour.
22 JUDGE ORIE: The name it will get, we'll --
23 MR. STEWART: Yes. Your Honour, see, that was -- that was my
24 first point. The label is not so significant. So, Your Honour, I would
25 entirely endorse that.
1 Since there is therefore going to be that -- the full
2 opportunity, I would just make the briefest observations, then, in relation
3 to the position this morning.
4 Your Honour took a couple of passages of what is indeed a very
5 short letter anyway, that's Mr. Krajisnik's letter to the Registrar, as the
6 basis for the view expressed by the Trial Chamber this morning. It is
7 perfectly clear on the basis of what Mr. Krajisnik has said this morning
8 that the current position is - and he has now repeated it several times in
9 unequivocal terms - that he has decided - and he's told Your Honours that
10 several times - he has decided to represent himself. And that letter to
11 the Registrar said, with the slight error about the number, that "The
12 suspect or the accused who decides to represent himself shall immediately
13 inform the Registry of that decision in writing. I am hereby doing that."
14 And the explanation that he sought from the Registrar and the area of
15 uncertainty was as to exactly what the procedure should be from then
16 onwards based on that position and not any uncertainty as to the essential
17 point. And that has been confirmed this morning.
18 So the two elements, as in fact summarised in my letter
19 yesterday, the two elements: that he has clearly reiterated his firm
20 decision to represent himself, and that he has declared in writing his
21 intention to represent himself, those are there.
22 So, Your Honour, we will have, it appears, the opportunity to
23 make full submissions in relation to this matter. But on that basis alone,
24 unless it is being suggested that in some way Mr. Krajisnik is not --
25 hasn't got full capacity -- he is after all an adult man, and the
1 explanations that Your Honour has been seeking from him this morning can
2 only be consistent with the Trial Chamber's view that Mr. Krajisnik is
3 equipped to answer questions in an intelligent manner as a -- a fully -- a
4 full-capacity adult person.
5 And, Your Honour, it's -- Your Honours are in effect conducting
6 a negotiation with Mr. Krajisnik in -- in open court as to what he might
7 accept in certain circumstances and in what certain circumstances he might
8 retract his current position, but his current position is very clear. And
9 the result, Your Honour -- Your Honours have said, but it doesn't follow,
10 in our submission, from the now very clear facts confirmed this morning.
11 Your Honours have said that we are still his counsel, but on the basis of
12 Mr. Krajisnik's firm reiteration of his decision this morning, we cannot
13 be, Your Honour, because it is quite clear that he has terminated our
15 But, Your Honour, the full argument, no doubt, will have to
16 proceed at this hearing. But we -- we find it, as a matter of submission,
17 Your Honour, difficult to suggest any way in which that conclusion doesn't
18 follow from Mr. Krajisnik's confirmed position. Your Honours have given
19 him the opportunity of resiling, retracting, and he has distinctly not
20 taken that opportunity. And the force of unwilling is perfectly
21 understandable. He -- he doesn't want to have been in the position of
22 making that decision, but nevertheless, he has made it.
23 JUDGE ORIE: Thank you, Mr. Stewart.
24 Would the Prosecution want to make any further observations?
25 MR. HARMON: Yes. Thank you for giving me the opportunity, Your
2 I think that a hearing should be held, whether we call it a
3 Status Conference or whatever we call it, it should be held immediately, as
4 soon as convenient to the Court and to the parties. I think this issue has
5 to be sorted out. This hearing has not addressed all of the issues that
6 the Court must address. Mr. Krajisnik in his submissions said to you that,
7 "I have prepared a document to explain the reasons behind my decision." He
8 held up a document that looked like it was a multi-paged document. That, I
9 think, has to be submitted to the Court so the Court can understand more
10 fully Mr. Krajisnik's reasons.
11 He has suggested in his submissions that he wants the Registrar
12 to appoint someone to advise him so he -- so as not to offend the Court in
13 his self-representation.
14 More importantly, Your Honour, I think the Court has to explore
15 with him in detail the issue of what self-representation means, and the
16 Court has to take a -- a voluntary and knowing and intelligent waiver to
17 the right to counsel.
18 All of those issues, Your Honour, we've -- we've touched upon
19 briefly but not in a manner which I think would clearly set the record in a
20 way that makes the final decision clear.
21 We have to deal also -- the reason I ask that we have such a
22 hearing immediately is we have witnesses who are here and who are en route,
23 and from the Prosecutor's point of view, it's imperative that we get this
24 matter resolved as soon as possible so we can proceed and so hopefully we
25 will not disrupt the schedule that the Court has set forth and that Mr.
1 Krajisnik is aware of for the completion of this trial.
2 Those are my submissions, Your Honour. Thank you.
3 JUDGE ORIE: Thank you, Mr. Harmon.
4 As I said before, it is a complex issue. The Chamber will take
5 some time to deliberate on how to proceed. The Chamber thinks - but I can
6 imagine that some confidence is lost in the ability to assess time - the
7 Chamber thinks that one hour would be enough to make up our minds on how to
8 proceed, and therefore we adjourn until 12.00.
9 MR. STEWART: Your Honour, may I address the question about that
11 JUDGE ORIE: Yes.
12 MR. STEWART: Because of course we're in this rather strange
13 position that it will be our submission that we have already ceased to be
14 Mr. Krajisnik's counsel, but, on the other hand, right now the Trial
15 Chamber's declarations to the status quo is that we are.
16 JUDGE ORIE: Yes.
17 MR. STEWART: And, Your Honour, from a practical point of view -
18 - of course, I propose to continue so far as Mr. Krajisnik will allow me,
19 as -- as if I am and offer him advice, which he can accept or reject. But
20 that's the position when I am his counsel. The -- but so far as that
21 document is concerned, Your Honour, may I suggest that the -- the
22 conventional position should apply that -- that it -- it should not be
23 forwarded and accepted direct by the Trial Chamber until I have had an
24 opportunity of discussing it with Mr. Krajisnik or he has been invited to
25 give me that opportunity.
1 JUDGE ORIE: Yes. Even though you are still Mr. Krajisnik's
2 counsel at this moment, of course we are also in a very specific situation
3 where, I would say, both you and Mr. Krajisnik are not happy with the
4 situation and have -- but I would suggest -- let me just ...
5 [Trial Chamber confers]
6 JUDGE ORIE: I do not know -- well, your position is clear, Mr.
8 The Chamber gives the following guidance: Mr. Krajisnik, you
9 are invited - and perhaps the next hour would be the time to do so, I do
10 not know whether it's translated already or not - you are invited to inform
11 Mr. Stewart about the content of it so that Mr. Stewart at least can give,
12 still being your counsel at this point in time, could give you whatever
13 advice he wants. At the same time, the Chamber accepts that if you would
14 decide to submit that document even without the consent of Mr. Stewart to
15 the Chamber, even if Mr. Stewart would advise you not to do so, the Chamber
16 accepts that it's finally your decision to submit this explanation,
17 document, to the Chamber if you wish to do so. But, of course, you're
18 invited first to consult Mr. Stewart. But it's finally your decision
19 whether or not to submit it to the Chamber.
20 Yes, Mr. Krajisnik.
21 THE ACCUSED: [Interpretation] It is just my own checklist, as it
22 were, and half of it is handwritten, so I was just going to use it as my
23 own notes in case I was allowed to address the Trial Chamber. So it wasn't
24 my intention to start submitting it to anyone, but obviously I can consult
25 on the contents when the time comes.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 JUDGE ORIE: Yes. So I do understand that you do not want to
2 submit it to the Chamber. That's clear.
3 Whether it would assist you in pursuing your aims at this
4 moment, the Chamber is confident that if you seek to consult Mr. Stewart
5 that he'll perform his duties and advise you on whether this is the best
6 way of getting to where you'd like to go, even if this would not be exactly
7 what he would like you to do.
8 MR. STEWART: Your Honour is right about that. I will advise
9 Mr. Krajisnik as to what I consider to be in his interest.
10 JUDGE ORIE: Yes.
11 MR. STEWART: I will make that clear today.
12 JUDGE ORIE: The Chamber is confident --
13 MR. STEWART: That is what Your Honour has in mind, and of
14 course I will do that.
15 JUDGE ORIE: The Chamber is confident that you will do that.
16 That's an expression of the confidence of the Chamber in your professional
17 attitude at this moment.
18 MR. STEWART: Yes. I appreciate that, Your Honour. Thank you.
19 JUDGE ORIE: Then we'll adjourn until ten minutes past 12.00.
20 --- Break taken at 11.08 a.m.
21 --- On resuming at 12.14 p.m.
22 MR. STEWART: Your Honour, Ms. Loukas has commitments elsewhere
23 at the moment.
24 JUDGE ORIE: Yes.
25 MR. STEWART: No discourtesy.
1 JUDGE ORIE: Yes. First of all, again, apologies for now 15
2 minutes, which is 25 per cent of the time we estimated, which means that
3 the Chamber is, although slowly, improving its ability to assess the time
4 it needs.
5 There are two things I'd like to address at this moment. The
6 first one is the issue we discussed before the break, whether there should
7 be a Status Conference in relation to the notification by Mr. Krajisnik
8 that he wants to defend himself, and the other one is another decision
9 still to be delivered.
10 Let's start with the first issue. First of all, the Chamber has
11 found that the status quo, as it explained at the beginning of this
12 morning's hearing, is unchanged. The Chamber has heard some additional
13 information from Mr. Krajisnik, but that is not the only matter that would
14 be relevant for the effect of such a notification. I'll come back to that
15 at a later stage.
16 The Chamber has decided that a Status Conference or at least a
17 part of a hearing specifically devoted, dedicated, to this issue will take
18 place next week. The Chamber considers that we'll need time. That means
19 the parties will need time, and the Chamber needs time, as well, to prepare
20 for such a hearing specific on this issue.
21 The Chamber has decided that it will continue to hear the case
22 for the next two witnesses, but then before it comes to examining Mr.
23 Nelson ^, that before that, most likely two or three hours will be
24 specifically dedicated to the issue at stake. During that hearing, we'll
25 further explore all aspects and consequences of Mr. Krajisnik's wish to
1 represent himself. From the fact that I say "Mr. Krajisnik's wish," it may
2 be clear, and it seemed to be clear to Mr. Krajisnik, as well, that it is
3 not just a matter of a decision taken by him, but the Chamber will also
4 have to determine whether this wish to represent himself falls within the
5 limits of the exercise of the right to represent himself, which is not an
6 unlimited right.
7 At that Status Conference, there, therefore, will also be an
8 opportunity to further explore and make submissions in respect of the legal
9 issues involved, since the Chamber finds that at present no, or at least
10 insufficient analysis of legal authorities, have been presented to the
11 Chamber, legal authorities on which decisions by other Trial Chambers and
12 the Appeals Chamber rely.
13 The next point is that in the present case Mr. Krajisnik has
14 repeatedly requested to be afforded greater involvement in the preparation
15 and the presentation of his defence. The Chamber has been very attentive
16 to Mr. Krajisnik's request and has taken some measures to foster greater
17 cooperation and communication between Krajisnik and counsel, but these
18 measures seem not to have borne such fruit that resolves the difficulties.
19 Until a decision has been reached on the matter I just
20 mentioned, that is, whether the wish of Mr. Krajisnik to represent himself
21 could be followed and the Chamber would allow Mr. Krajisnik to represent
22 himself, until a decision on this issue has been reached, the Chamber will
23 continue along its predetermined track. As an experiment, the Chamber will
24 from today allow Mr. Krajisnik to put supplementary questions, following
25 cross-examination by counsel, to each witness.
1 In doing so, Mr. Krajisnik - and I'll specifically address you -
2 I advise you to be properly prepared. You shall have to play by the ground
3 rules, just like anybody else, and your lack of legal experience means that
4 there is a serious risk that you'll damage your position. You should be
5 aware that if you inadvertently damage your position through questioning
6 witnesses, that it's something you shall have to live with. The Chamber
7 therefore strongly advises you to consult your assigned counsel about any
8 line of questioning you wish to pursue.
9 That is the decision of the Chamber in view of having a
10 dedicated hearing on the matter and how to proceed until a final decision
11 has been reached on this matter.
12 Then I turn to the next matter we have to address at this
13 moment, that is, a decision on the Prosecution's motion to call two new
15 This is a decision on the Prosecution's motion of the 17th of
16 May, 2005, to call two new viva voce witnesses. These witnesses go by the
17 pseudonyms 681 and 682.
18 Rule 73 bis (E) of the Rules states in relevant part, and I
19 quote: "After commencement of the trial, the Prosecutor may file a motion
20 to vary the number of witnesses that are to be called and the Trial Chamber
21 may grant the Prosecutor's request if satisfied that this is in the
22 interests of justice."
23 In its December 2003 list of witnesses, the Prosecution said in
24 paragraph 8 of its submission that it was not then in a position to name
25 eight of the 101 viva voce witnesses it had been allocated to prove its
1 case. Since then, the Prosecution has filled five of those slots. The
2 question now before the Chamber is whether the Prosecutor is entitled to
3 fill two more slots at this rather advanced stage in the case using the
4 prospective witnesses named 681 and 682. The Defence says that the
5 Prosecution is not entitled to do so and gives various reasons, including
6 lack of a showing of good cause for the late addition.
7 In a decision of the 23rd of November, 2004, transcript page
8 8586, the Chamber said that it, and I quote: "Agrees with the Defence that
9 a satisfactory explanation ought to be provided as to why a witness was not
10 and could not have been reasonably approached before the list of witnesses
11 was provided to the Chamber and the Defence. Also, the requesting party
12 must show that the evidence expected by the witnesses not mentioned in the
13 list of witnesses is of sufficient importance to justify adding the witness
14 after the beginning of the trial."
15 It is true that in the present case the Prosecution was in
16 touch with both witnesses a long time ago; namely, in March 2004 in the
17 case of Witness 681, and in January 2003 in the case of Witness 682. It is
18 also true that the Prosecution's reasons for adding 681 and 682 at this
19 late stage do not, in a sense, stand out as satisfactory. The Prosecution
20 submits that an interview with another recently added witness has made the
21 evidence of Witness 682 seem more relevant than it once did. And that is
22 all. The Prosecution itself concedes that, and I quote again, "It would
23 have been preferable" to have identified these persons, 681 and 682, as
24 witnesses at an earlier stage in the proceedings.
25 In another sense, however, the Prosecution has given
1 satisfactory reasons; namely, that it has reviewed its remaining witnesses
2 and has decided to do more with less. In this sense, the Chamber agrees
3 with the Prosecution's submissions at paragraph 10 of its reply of the 20th
4 of May, 2005, where the Prosecution says that the interests of justice may
5 be invoked to excuse last-minute adjustments to the witness list.
6 In addition to that, I recall that on the 27th of April, 2005,
7 the Chamber directed the Prosecution to further focus its case on the
8 issues that lie at the heart of the indictment against Mr. Krajisnik. This
9 process of final review by the Prosecution has evidently led it to
10 reconsider the value of two witnesses that it had put aside at an earlier
11 stage of the proceedings. The Chamber does not, of course, wish to give
12 inconsistent rulings, but while it is always desirable that a party has
13 good reasons to introduce novel elements into the settled schedule, the
14 absence of a solid explanation is not necessarily going to be fatal to the
15 party's application, especially not where the Chamber has just asked the
16 party to improve its focus and to wrap up its presentation earlier than
17 that party had perhaps expected.
18 The Chamber finds that the Prosecution's motion comes within the
19 Rule 73 bis of the Rules. The applicable test is the interests of justice.
20 There are many ways of looking at this. Efficient proceedings are
21 certainly in the interests of justice, and the Prosecution is promising,
22 through its motion, a leaner process, with around 15 witnesses dropped. I
23 note, however, that we received a similar promise with the last Prosecution
24 motion for adding two new witnesses, which was the motion dated the 8th of
25 April, 2005. The difference is that that motion did not specify the number
1 of witnesses to be dropped.
2 Also in the interests of justice is that the Chamber hears
3 witnesses which are likely to assist the Chamber in the determination of
4 the truth. The Prosecution seems to think that the two proposed witnesses,
5 681 and 682, are more to the point than many others it intended to call,
6 and having skimmed the material that came with the motion, the Chamber sees
7 no reason to disagree. I shall return to the question of the importance of
8 681 and 682 in a moment.
9 Lastly, it's also in the interests of justice that the Defence
10 has sufficient time to prepare for the cross-examination of previously
11 unscheduled witnesses if the Chamber, in its discretion, permits such
12 witnesses to be called. The Prosecution itself recognises that unfair
13 prejudice is a ground to deny the motion.
14 The Prosecution states at paragraph 6 of Annex A of its motion
15 that Witness 681's interview transcript was given to the Defence on the
16 15th of October, 2004. In other words, the material has been with the
17 Defence for some months. Although given that Witness 681 was not listed as
18 a witness in this case, it is a fair assumption, therefore, that the
19 Defence has paid little or no attention to him. Witness 681 is said to
20 have held an important post in 1992 and to have inside knowledge of matters
21 having a critical bearing upon this case. In the interests of justice, the
22 Defence will be afforded additional time to prepare for this witness.
23 As for Witness 682, he is of lesser importance to the case.
24 However, his evidence concerns an alleged armed formation called the Yellow
25 Wasps; it also bears on the as-yet relatively underexplored subject of the
1 relationship between the regular armed forces of the Republika Srpska, on
2 the one hand, and Serb paramilitaries, on the other. We are informed by
3 the Prosecution that the evidence of Witness 682 rounds off the evidence of
4 two other witnesses who are also to testify about the Yellow Wasps from
5 quite different perspectives. As well, in the Chamber's opinion, Witness
6 682 holds the prospect of giving evidence to balance the evidence of the
7 other two witnesses, and thus to hear him is in the interests of justice.
8 The statements of Witness 682 were not provided to the Defence
9 prior to the filing of the Prosecution's motion. As with Witness 682
10 [sic], the Defence will be afforded additional time to prepare for this
12 The Chamber is of the view that it would be fair to allocate to
13 the Defence a total of four extraordinary non-sitting days for the
14 preparation of the cross-examination of Witnesses 681 and 682. It's for
15 the Defence to decide how to split this time and to inform the Prosecution
16 as soon as possible.
17 To recapitulate, I would say that the Prosecution's motion to
18 add Witnesses 618 [sic] and 682 and to drop other witnesses is essentially
19 a request for permission to reorganise its evidence-presentation strategy
20 at a time when its case has entered its final few laps. The Chamber has no
21 objection to granting this reorganisation, seeing that it conforms with the
22 interests of justice, once certain scheduling adjustments are made to
23 ensure that no unfairness results to the Defence.
24 In conclusion, the ruling of the Chamber is as follows:
25 Point one: The Prosecution's motion is allowed for each of the
1 two witnesses on the condition that the Prosecution calls no other
2 witnesses over four working days preceding the testimonies of Witnesses 681
3 and 682. The compulsory recess days are to be allocated in accordance with
4 the wishes of the Defence.
5 Second point: The possibility that the Prosecution chooses to
6 call both witnesses and must therefore vacate four days of its schedule
7 does not change the requirement that the Prosecution must finish the
8 presentation of its case in chief by the 22nd of July.
9 Third point: The Prosecution is requested to provide the
10 Chamber and the Defence, at the earliest opportunity, and not later than
11 next Monday, with a calendar of how it proposes to use the 40-or-so working
12 days remaining for its case in chief. The Chamber knows very well that
13 witness schedules are as changeable, I would say, as, especially in this
14 country, as weather forecasts for the next 40 or so days. The calendar
15 should indicate whether Witnesses 681 and 682 are going to be called and,
16 if so, the days of compulsory recess preceding their testimony, in the
17 terms I have already explained.
18 The Prosecution is requested to regularly update its forecast
19 and inform all concerned as and when the Prosecution receives new
20 information. This will better enable both the Defence and the Chamber to
21 plan their work.
22 And this completes the Chamber's decision on the Prosecution's
24 We, unless there's any urgent matter to be raised at this moment
2 MR. STEWART: Your Honour, I just want to say this. Your Honour
3 referred in the first of -- of those matters that has been dealt with since
4 we resumed after the break --
5 JUDGE ORIE: Yes.
6 MR. STEWART: -- certain matters that seemed to be clear to Mr.
7 Krajisnik. I do want to say, Your Honour, I hope it's understood that --
8 that there is no recognition which could possibly amount to any concession
9 or acceptance of the position. We -- we take it that all questions are
10 open as far as submissions are concerned on this special session which is
11 to be held next week.
12 JUDGE ORIE: Yes. We try to formulate the issues as broad as
13 possible, that is, all aspects and consequences, including legal aspects
14 for which the Chamber asks specific attention. But since yesterday you
15 asked to be in a position to present also submissions on your own position
16 as Defence counsel, under those circumstances they are certainly not
17 excluded from, and I would say, could be considered to be included in
18 possible consequences of the wish of Mr. Krajisnik.
19 MR. STEWART: Yes, Your Honour. And what I had in mind also was
20 that -- I take it nothing Mr. Krajisnik may have said or appeared tacitly
21 to have clear to him closes off for Mr. Krajisnik any submissions or
22 arguments in relation to these matters.
23 JUDGE ORIE: Well, at this moment, I do not see any matter which
24 would be excluded. Of course, I'm not fully aware of what it all could be;
25 so therefore, I have to --
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 MR. STEWART: Probably none of us is, Your Honour, which is why
2 we need time.
3 JUDGE ORIE: -- as you know, so it should be a very open exchange
4 of views of the parties and the accused on the situation that has arisen as
5 a result of the notification by Mr. Krajisnik to the Registrar.
6 MR. STEWART: And, Your Honour, although it may not be the very
7 most important matter in the case, I didn't have the opportunity earlier on
8 this morning just to introduce Mr. Michael Wolfe, who -- this is the first
9 time he's been in court. He's been a member of the Defence team, and so
10 long as there is in fact a Defence team technically, he will be a member
11 until May the 31st.
12 JUDGE ORIE: Yes.
13 MR. STEWART: But I didn't want him to come into court without
14 me mentioning that and introducing him in that way to Your Honours.
15 JUDGE ORIE: Yes. Mr. Wolfe, welcome to this courtroom. And at
16 the same time, you may have noticed this morning that dull moments are
17 difficult to find in this case and in these types of cases.
18 Mr. Harmon.
19 MR. HARMON: Yes, Your Honour. As I understand the court
20 schedule, we will proceed with the next two witnesses.
21 JUDGE ORIE: Yes.
22 MR. HARMON: Then we will have a hearing. And for purposes of
23 our future scheduling, I take it we are to maintain the regular schedule,
24 and I assume that if the Court makes a decision on whether Mr. Krajisnik
25 will continue with counsel or will be representing himself, in any event,
1 we will be proceeding after that hearing with the witnesses that have been
2 scheduled. And should the event -- should the decision be that Mr.
3 Krajisnik will represent himself, he will be prepared, I take it, to
4 examine the witnesses that we have next in order.
5 JUDGE ORIE: Yes. Let me be quite clear on that. Whatever the
6 decision the Chamber would take, whether in the near future Mr. Krajisnik
7 would represent himself or would be represented by counsel, that decision,
8 in the view of the Chamber, should have no disruptive effect on the
9 continuation of the trial. It might be one of the legal issues related to
10 this matter which should be discussed or at least touched upon perhaps
11 during this special hearing. But it's, of course -- it may not be unknown
12 to you that where this matter of self-representation is described in legal
13 textbooks, that the potential disruption of a trial is one of the issues
14 addressed there as well.
15 MR. HARMON: My principal reason for raising that, Your Honour,
16 is it takes a lot of planning and scheduling to get witnesses here, and I
17 want to make sure that if they do arrive, we will proceed with them to the
18 extent that that is known at this point in time. But I have the guidance
19 of the Trial Chamber, and thank you very much for giving it to me.
20 JUDGE ORIE: Yes. I would say especially -- and that's, as I
21 said, this will be true for the situation until a decision has been
22 reached. The Chamber will first have to wait and see what submissions are
23 made during this special hearing, and we'll then only be in a position to
24 assess how much time it would need to reach a decision. Meanwhile, the
25 trial will continue as scheduled.
1 If there's no further issue, then we will adjourn until tomorrow
2 morning, 9.00, same courtroom.
3 --- Whereupon the hearing adjourned at 12.44 p.m.,
4 to be reconvened on Friday, the 27th day of
5 May, 2005, at 9.00 a.m.