Tribunal Criminal Tribunal for the Former Yugoslavia

Page 13415

  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

 23   continues.

 24              Mr. Krajisnik also addressed a letter to the Registrar, which

 25   was received by the Registrar yesterday.  A formal translation has been

Page 13416

  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

Page 13417

  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.

Page 13418

  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

 12   time.

 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

Page 13419

  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

  8   moment.

  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

 13   that.

 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

Page 13420

  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

Page 13421

  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.

 9  (redacted)

10  (redacted)

11  (redacted)

12  (redacted)

13  (redacted)

14  (redacted)

15  (redacted)

16  (redacted)

 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,

Page 13422

  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

  6   decision.

  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

Page 13423

  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. 

Page 13424

  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

  7   you.

  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.

Page 13425












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Page 13426

  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

  6   Chamber.

  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)

16  (redacted)

17  (redacted)

18  (redacted)

19  (redacted)

20  (redacted)

21  (redacted)

22  (redacted)

23  (redacted)

24  (redacted)

25  (redacted)

Page 13427

 1  (redacted)

 2  (redacted)

 3  (redacted)

 4  (redacted)

 5  (redacted)

 6  (redacted)

 7  (redacted)

 8  (redacted)

 9  (redacted)

10  (redacted)

11  (redacted)

12  (redacted)

13  (redacted)

14  (redacted)

15  (redacted)

16  (redacted)

17  (redacted)

18  (redacted)

19  (redacted)

20  (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.

Page 13428

  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

 12   heart.

 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

 19   that.

 20              JUDGE ORIE:  Yes.  Thank you for those observations, Mr.

 21   Krajisnik.

 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

Page 13429

  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.

Page 13430

  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.

Page 13431

  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

Page 13432

  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

 14   instructions.

 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

Page 13433

  1   Honour.

  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.

Page 13434

  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

 10   document?

 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.

Page 13435

  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.

  7   Stewart.

  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.

Page 13436












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Page 13437

  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.

Page 13438

  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

Page 13439

  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.

Page 13440

  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

 14   witnesses.

 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

Page 13441

  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

Page 13442

  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

Page 13443

  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

Page 13444

  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

 11   witness.

 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

Page 13445

  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

 23   motion.

 24              We, unless there's any urgent matter to be raised at this moment

 25   --

Page 13446

  1              Yes.

  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 --

Page 13447












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Page 13448

  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,

Page 13449

  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.

Page 13450

  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.