1 Wednesday, 28 September 2005
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.39 a.m.
5 JUDGE ORIE: Mr. 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. Thank you.
8 JUDGE ORIE: Thank you, Mr. Registrar.
9 Good morning to everyone. Today was scheduled to have the
10 pre-Defence conference. The Chamber received two motions last Monday:
11 One motion to stay the proceedings, and one motion for further time to
12 prepare for the Defence.
13 The Chamber has decided that we'll start to hear these motions
14 today. The Chamber was unpleasantly surprised by the fait accompli it was
15 confronted with last Monday.
16 But before I give an opportunity to the parties to make any
17 further oral submissions on the motions, there are a few matters pending
18 which I would like to briefly address.
19 The first one being that the Prosecution would inform the Chamber
20 on the results of any discussions regarding the use of the words, and I
21 quote, "or other non-Serb populations" in the indictment.
22 Mr. Tieger.
23 MR. TIEGER: Thank you, Your Honour. Just to recap briefly: I
24 don't believe there was any significant gap in understanding between the
25 Defence and the Prosecution on that matter. The Court just accorded the
1 Prosecution additional time to review the indictment to see if there are
2 any references to "non-Serb populations" that the exclusion of which would
3 render that portion of the indictment somehow difficult to understand.
4 And we didn't find such references. So we think the understanding reached
5 earlier addressing the nature of the charges of persecution, for example,
6 directed against the Bosnian Muslim and Bosnian Croat populations and the
7 exclusion of the other non-Serb populations stands. So unless the Defence
8 has any additional questions about the meaning of that, and I don't
9 believe it does, I think -- we appreciate the additional time provided by
10 the Court, but no further clarification appears necessary.
11 JUDGE ORIE: Yes. Mr. Stewart.
12 MR. STEWART: That's correct, Your Honour.
13 JUDGE ORIE: Yes. Fine. Thank you.
14 Mr. Krajisnik, I saw that you were raising your hand. I do not
15 know what you wanted to address at this very moment.
16 THE ACCUSED: [Interpretation] First of all, I would like to say
17 good morning to the Trial Chamber. Secondly, I have appealed the decision
18 on my defence, and I don't know whether it has been put on the agenda and
19 whether I will be given an opportunity to say something on that item of
20 the agenda, which is closely connected to what you have just mentioned.
21 Thank you very much.
22 JUDGE ORIE: Yes. Mr. Krajisnik, you say that you have appealed
23 the decision, the decision on which the Chamber decided that you would not
24 be unrepresented. The Chamber is aware that you did send a letter to the
25 Trial Chamber. We'll deal with that letter at a later stage this morning.
1 But perhaps it's good to say already that your observation that you have
2 appealed the decision might be wrong. But we'll deal with that at a later
4 MR. STEWART: Your Honour, may I observe: This case is full of
5 unpleasant surprises, and one unpleasant surprise for the Defence is to
6 hear at this moment that a letter has been sent to the Trial Chamber which
7 has never been communicated to us, notwithstanding specific discussion in
8 the past on the topic of information being transmitted immediately to the
9 Defence when received in such circumstances by the Trial Chamber.
10 JUDGE ORIE: Yes. When we deal with the matter later this
11 morning, one of the issues will be that the Chamber would not further
12 receive this kind of direct communication. I was not fully aware -- the
13 letter reached the Chamber recently in translation. If you are not aware
14 of the letter, I was not aware that -- then of course I'll take care that
15 it will be distributed. I take it, as a matter of fact, that once you
16 have seen it and once the Chamber has addressed the matter, that you might
17 be satisfied with the way the Chamber has dealt with it. If not, of
18 course, there will be another opportunity to give any -- make any
19 observations you'd like. But the Chamber is confident that counsel will
20 be satisfied with the way the Chamber deals with the matter.
21 MR. STEWART: I'm happy to hear that confidence, Your Honour, and
22 I'm sure I shall make my judgement when I see that material.
23 JUDGE ORIE: Yes. Mr. Krajisnik.
24 THE ACCUSED: [Interpretation] I apologise, Your Honour. First of
25 all, the entire appeal was sent to my Defence on a CD. Secondly, I kindly
1 ask you to allow me to appeal against the decision. I have addressed the
2 Trial Chamber on a number of occasions. I have addressed the Registry as
3 well. I've asked for legal help to help me put the appeal together. This
4 is the appeal to my submission, not to a submission by my Defence, and
5 hence the difference, and the difference is major here.
6 JUDGE ORIE: We'll deal with the matter at a later stage,
7 Mr. Krajisnik. Perhaps for the moment it will be sufficient to remind you
8 that this Chamber has decided that you are represented by counsel and that
9 the Registry has informed you that it will not assign any additional legal
10 expertise where counsel is already assigned to you.
11 We'll deal with the matter at a later stage.
12 The next issue on the agenda is that the Defence was expected to
13 give its position on the issue of the testimony of Davidovic. You
14 certainly remember the issue related to that. That was during the week of
15 the 3rd of October.
16 MR. STEWART: Your Honour, may I say -- I'm sorry. I beg your
17 pardon, Your Honour.
18 JUDGE ORIE: Yes. I think it was linked to the start of the
19 Defence case.
20 MR. STEWART: Your Honour, I must confess, I'm completely unaware
21 that any such direction was given in relation to this matter. I certainly
22 don't forget the matter. Your Honour can be absolutely sure I'll never
23 forget it. But I really am unaware of any such direction having been
24 given. What I remember --
25 JUDGE ORIE: I think it was discussed, I don't know exactly when,
1 but it was discussed when we would receive the position of the Defence.
2 MR. STEWART: I don't remember that either, Your Honour, to be to
3 be absolutely frank.
4 JUDGE ORIE: During the next break, I'll find exactly where it was
5 said and just to remind you --
6 MR. STEWART: If it was, Your Honour, indeed. If anything was
7 said on that point, not just where it was said but whether it was said as
9 JUDGE ORIE: Yes. Mr. Stewart, if it was said nowhere, I would
10 not be in a position, of course, to tell you when it was said. But the
11 Chamber - that's at least my recollection - linked it to the beginning of
12 the Defence case. Since we'll have to adapt some of the scheduling
13 anyhow, the Chamber would not insist on receiving it on a date as is in my
14 recollection. But let's deal with it after the first break and then
15 exactly find the moment on which anything was said on the timing of the
16 findings of the Davidovic matter.
17 MR. STEWART: So we're leaving item 2, then, for the moment, are
19 JUDGE ORIE: For the moment. Perhaps we'll come back to it after
20 the break.
21 MR. STEWART: Yes, thank you, Your Honour, that's helpful.
22 JUDGE ORIE: Then the next item on the agenda is the Chamber would
23 like to give an opportunity, as requested, to the Defence and of course
24 also then to the Prosecution to make any further submissions on the motion
25 to stay. We'll split up the hearing of the motions, first the motion to
1 stay and then the moment for extension of time. Mr. Stewart. Mr. Josse.
2 MR. JOSSE: I'm dealing with this motion, Your Honour. I can be
3 extremely brief, because matters are set out fully in the short motion,
4 because the point is short, but we submit an important one nonetheless.
5 Could I first of all contend that no analogy should be drawn from
6 this application for a stay with that which sometimes follows an
7 application for a stay following a motion that is rejected by the Chamber,
8 certification then granted. The difference here, as I hope both the
9 application for the stay makes clear, and also the appeal document itself,
10 this, we contend, is an automatic right of appeal pursuant to Rule 108,
11 this being an issue of a judgement of acquittal. And therefore, whilst in
12 normal circumstances a Chamber would be very reluctant to grant a stay
13 following the rejection of a motion, as I've already said, here the
14 situation, I contend, is quite different. And we would invite particular
15 caution on the part of the Chamber before allowing the case to be proceed
16 any further.
17 In principle, we submit, it's wrong to say to an accused that that
18 accused needs to start putting up his defence when there is a chance,
19 through an appeal procedure, an appeal procedure as of right, we would
20 emphasise, that he may not have to put up a defence because his appeal
21 might be accepted in whole or in part. For this purpose, we contend, it
22 doesn't really matter whether the appeal is accepted in whole or in part.
23 The situation is identical. The accused would be forced, were no stay
24 granted, to put up a defence when in due course it transpires as a result
25 of a decision of the Appeals Chamber he need not have done so.
1 Additionally, again, as I hope the motion makes clear, practically
2 it is unfair on the Defence in general where uncertainty exists over which
3 part of the indictment may or may not be struck out following the appeal,
4 to say that the accused has to answer the whole of the indictment. The
5 argument is simple. Until such time as the accused knows which part of
6 the indictment he does ultimately have to face, it's unfair to expect him
7 to have to call evidence in relation to the whole indictment. It's going
8 to affect the spread of time that the accused has, the choice of
9 witnesses, so on and so forth, all the various matters that will in due
10 course need to be considered by the Defence, the Prosecution, and indeed
11 the Chamber in the 73 ter conference.
12 Your Honour, I'd also invite this Chamber not to underestimate
13 what is said in paragraphs 9 and 10 of the motion, and I'm going to deal
14 with this extremely briefly, because it wasn't that long ago. It was the
15 16th of August, I think, that I addressed this Chamber on this very issue.
16 Rule 98 bis, as we know, was amended during the course of this
17 trial. As the Court is aware, it was the Defence submission that that
18 amendment was fundamental to the operation of Rule 98 bis. In effect, as
19 of course is its right, the Trial Chamber disagreed with that submission,
20 rejected it, and we contend that the matter requires resolution by the
21 Appeals Chamber.
22 If the Defence are right that Rule 98 bis, when amended, was
23 amended in a fundamental way, and if the Defence are right that as a
24 result of that, prejudice - and we say severe prejudice - was caused to
25 the accused, it is possible, we would submit more than possible, that
1 relief sought in the appeal document may be granted in part or in whole.
2 The result of that is that this Chamber would be ordered, in effect,
3 return to the 98 bis stage and reconsider the matter on the basis of a
4 motion and reconsider the matter, if I could put it again in the way that
5 I did at the time, line by line, item by item, in the very schedules.
6 Well, Your Honour, I needn't say that were that to happen in the
7 middle of the Defence case, then the situation would be totally untenable
8 and utterly absurd. And we submit that in those circumstances there would
9 be a very real chance that the trial would actually not just degenerate
10 into farce, but the trial may actually end up having to be aborted simply
11 because at that particular juncture, so much of the Defence case would
12 have been heard. That may well have related to things that were then
13 struck out as a result of the return to 98 bis motion, and on top of that,
14 there's every chance the Defence will be contending, well, how can this
15 Chamber reconsider a full 98 bis motion when it had heard half of the
16 Defence case? It's a very real and severe practical problem.
17 In our submission, bearing in mind, to go back to the point that
18 I've begun with, the accused has an appeal as a right from a Rule 98 bis
19 ruling, bearing in mind how fundamental it is, as fundamental as anything
20 that comes before the Trial Chamber or the Appeal Chamber, namely, the
21 issue of judgement of acquittal. We submit that in reality, a trial
22 logically should proceed in stages. The stage that we have reached is
23 that this Chamber has ruled in relation to our 98 bis submission, which in
24 our submission was not a motion, as is made clear in the document, in the
25 Appeal Chamber document. And we submit finally that following that
1 through logically, to allow the case to proceed until the matter has been
2 resolved by the Appeal Chamber, one way or the other, would not only be
3 unfair but would be impractical and could lead to absurdity.
4 In our submission, the only course of action that is open to this
5 Chamber at this stage is to grant the relief sought, to order a stay, as
6 awkward and impractical as that might be to the proceedings and allow the
7 Appeal Chamber to resolve the matter, and thereafter for the trial to
8 continue, if the Appeal Chamber finds that the accused has a case to
9 answer, in whole or in part, or of course the Appeal Chamber might order a
10 return to the 98 bis stage, as I've already mentioned.
11 Those are the submissions.
12 JUDGE ORIE: Mr. Josse, before --
13 [Trial Chamber confers]
14 JUDGE ORIE: Mr. Josse, before I give an opportunity to the
15 Prosecution, I'd like to receive a clarification on one of the issues.
16 You say it is not only absurd and impractical, but -- and
17 illogical, but it's also prejudicial to the accused if the 98 bis
18 procedure would be revisited after we would have heard portions of the
19 evidence presented by the Defence. I'm trying to understand that. Would
20 that mean that -- let's just assume -- I'm not saying that it is a real
21 possibility, but it's for the Appeals Chamber to decide. Let's just
22 assume that the Appeals Chamber would instruct this Trial Chamber to go
23 through the 98 bis procedure again. If we would have heard, apart from
24 whether we could separate that in our minds, but let's just also assume
25 that it would influence us in one way or another to have heard evidence
1 which favours the Defence case. How could that be prejudicial to a
2 decision to be taken under 98 bis?
3 MR. JOSSE: Of course, it assumes that the evidence will in fact
4 favour the Defence case. I mean, clearly we will endeavour to call
5 evidence that is going to favour our case. But like any sensible counsel,
6 we appreciate that our witnesses are going to face cross-examination.
7 That cross-examination will no doubt be testing, and that may well affect
8 matters firstly, in my submission.
9 Secondly, witnesses will have to address issues presently in
10 relation to the indictment as set out. If the indictment is in some way
11 changed, either by the Appeal Chamber or by revisiting of 98 bis by this
12 Chamber, then, in my submission, there is real prejudice to the Defence if
13 there is called evidence which has then no place or status in the trial
14 thereafter. In an adversarial system, and I appreciate this is a hybrid
15 system, in an adversarial system it really can't be fair to invite a party
16 to call evidence when there is a real chance that that evidence is
17 evidence it need not have called as a result of a further ruling by a
18 higher body, namely, the Appeal Chamber.
19 [Defence counsel confer]
20 MR. JOSSE: I have nothing more to add, Your Honour.
21 JUDGE ORIE: Yes. This comes back, of course, to the potential of
22 the Trial Chamber to separate and to select what evidence. Because if you
23 say we've heard perhaps some evidence given during cross-examination
24 which, although we expect the evidence to be presented to be in favour of
25 the accused, that there is a possibility that there would be evidence
1 which would be adverse to the Defence case, then we are more or less in
2 the same situation, isn't it, as we are when we have seen some evidence
3 which needs to be excluded for -- and which we have to bend from our
4 minds. Isn't that one of the elements of this hybrid system?
5 MR. JOSSE: Well, it may be one of the elements. In fairness to
6 the Defence, it isn't the only submission on this point. It's also, as
7 I've already said, the balance that we give to that particular issue, an
8 issue which in due course might play no more part in the trial.
9 JUDGE ORIE: Yes. I do understand you understand your point.
10 Mr. Harmon or Mr. Tieger, because we have not put on the record
11 who are here, but at least it was Mr. Stewart for the Defence and
12 Mr. Josse, and I see Mr. Harmon and Mr. Tieger being present for the
13 Prosecution. Would you like to respond to motion -- the motion to stay?
14 MR. TIEGER: Yes, Your Honour. Thank you. And I hope my response
15 will be brief.
16 The question raised by the Court to the Defence in connection with
17 the issue of prejudice is one that I had wished to focus on, and I think
18 the questions and responses largely tend to obviate that. I would simply
19 note that our position is that there is no prejudice of the type and
20 nature described by the Defence. I find, actually, that that's
21 exemplified in the Defence motion itself when its emphasis seems to be at
22 the early stage of the motion that the problem is the impression, and I'm
23 quoting when I use that term, "upon Mr. Krajisnik and the general public
24 of pre-emption of the judgement if this were to go forward." That's a far
25 cry from actual prejudice that is really at the subject of such motions.
1 The Defence raises a number of essentially illusory difficulties.
2 I think the Court's question has illustrated that. Mr. Josse refers to
3 the Defence position that in an adversarial system proceeding in this
4 manner would be unfair. I think more accurately what underlies
5 Mr. Josse's point would be in a jury system. And the Defence ignores the
6 fact that this is not a system in which it's incumbent upon the procedure
7 to keep from jurors the kind of evidence that may be excluded from them in
8 the course of adversarial systems where juries are the finders of fact.
9 As the Court has noted, here we have professional Judges who are called
10 upon on a daily basis to make such distinctions and who are clearly
11 capable of making such distinctions in this particular case.
12 I would note further in emphasising the illusory nature of the
13 Defence concerns about prejudice that there was no contention by the
14 Defence that any of the counts of the indictment would fall. The thrust
15 of the current motion is whether or not any of the supporting evidence
16 underlying those counts might at some point be excluded from the case.
17 The thrust of the Defence case is clearly not going to be an effort to
18 combat or dispute or contest incidents or events about which they claim
19 the Prosecution has produced no evidence. It's very clear that the thrust
20 of the Defence case will be elsewhere, will not be focussed on incidents
21 that were not raised during the course of the Prosecution case.
22 So I would simply note that, finally, that the practical
23 difficulties that the Defence seems to cite simply don't exist here,
24 and -- which is precisely the reason, we would submit, the Defence
25 declined to engage in a line-by-line review of the evidence produced in
1 the case, a line-by-line review of the indictment. I would remind the
2 Court that was a Defence decision. They declined to do so. Largely, we
3 would submit, because the practical effect was minimal, if not
4 non-existent. And there's no basis for the contention that any prejudice
5 would result here from proceeding. Quite the contrary; there's, we would
6 submit, prejudice from not proceeding in a variety of ways. The case
7 needs to move forward. And that even in the unlikely event that some
8 aspects of the evidence supporting the counts of the indictment were to be
9 excluded from the case, its pragmatic impact on the case would be
10 essentially non-existent and there is no potential prejudice from moving
12 JUDGE ORIE: Thank you, Mr. Tieger.
13 Mr. Josse, the first time you heard a response from the
14 Prosecution, so if you'd like to briefly respond.
15 MR. JOSSE: I will be very brief, Your Honour.
16 JUDGE ORIE: You'll have an opportunity to do to.
17 MR. JOSSE: Thank you. Could I first of all say that we do not
18 accept what Mr. Tieger says at line 18, 19 of page 12, that the Defence
19 declined to engage in a line-by-line review of the evidence for that very
20 reason. He sets out at that particular part of his submission. We simply
21 don't accept that as being an accurate reflection of the situation.
22 Could I also make one other correction to what Mr. Tieger has
23 said. He cites the top of page 3, part of paragraph 6 of the Defence
24 motion. What he fails to point out is that paragraph 6 in fact, and I'm
25 not going to read it out. The first three lines deal with a particular
1 point and he failed to mention the words even leaving aside the
2 substantive issue. So the point being made about the impression is purely
3 a subsidiary one, it's not the main point, and for Mr. Tieger to say that
4 gives the game away, the Defence using the words the impression upon
5 Mr. Krajisnik, is simply a misreading, in our submission, of paragraph 6
6 of the actual motion.
7 Your Honour, Mr. Tieger makes the point that the Defence are
8 alluding to what the situation would be in a jury system. We firmly
9 reject that submission. We are very aware that this is not a jury system.
10 We are very aware that this is a hybrid system. And we appreciate that
11 it's Your Honour and Your Honour's colleagues who are in due course going
12 to resolve all the issues in this case, both legal and factual. But that
13 does not mean to say that any of the Judges of this or any other court are
14 robots. It also does not mean to say that one shouldn't proceed with
15 caution. It also doesn't mean to say that some of the fundamental matters
16 that apply in an adversarial trial in this regard do not apply here. Of
17 course there are significantly different considerations to a jury trial.
18 We accept that. But we do not accept what Mr. Tieger says, that
19 realistically we're trying to make a point that would be applicable in a
20 jury system but not in a system where there is trial by judge rather than
21 jury. No, Your Honour. We submit strongly that the point is equally good
22 in this type of system as it would be in a jury system.
23 One final point. So far as material is concerned that witnesses
24 may or may not come up with, these are Defence witnesses from the
25 witness-box, of course if those witnesses are dealing with matters which
1 in due course they would not have needed to have dealt with, the
2 Prosecution, as well as the Chamber, as well as the public in general,
3 would have heard things that they otherwise would not have heard, material
4 that the Prosecution might be able to use and material, we submit, that
5 may leave some impression on the Chamber, despite no doubt its best
6 efforts to remove such impression and evidence from its mind.
7 Finally, I contend, Your Honour, that, for whatever reasons,
8 perhaps because he thinks it's a very bad point, Mr. Tieger did not
9 address points 9 and 10 in the Defence motion, which we, as I've already
10 said, do place very strong reliance upon. We do say that were we right,
11 were the Defence submission at the 98 bis hearing to be the correct one,
12 rather than the ruling of the Chamber, and were the Appeal Chamber to
13 agree with the Defence, to return in detail to the 98 bis stage by way of
14 motion and the old rule would simply be almost an impossibility, if not an
15 impossibility, were we in the middle of the Defence case.
16 JUDGE ORIE: Thank you, Mr. Josse.
17 The Chamber considers it the best way of proceeding to first see
18 whether we can reach a decision, whether that would be already a fully
19 reasoned decision is not a matter on the motion to stay. Because if that
20 motion would be decided, then we would not have to continue on the basis
21 of assumptions. But of course if we would not reach a final decision,
22 then the Chamber nevertheless prefers to continue on the basis of what
23 observations the parties would like to make on the other motion, just in
24 case the Chamber would deny the motion to stay.
25 MR. JOSSE: Your Honour, while I'm on my feet, but really it's for
1 Mr. Stewart to deal with. As indeed the stay motion made clear, our
2 preferred course was for judgement on the stay motion before proceeding.
3 But the agenda yesterday made clear the situation, and of course we don't
4 and can't -- perhaps I should put it the other way around. We can't and
5 don't argue with it.
6 JUDGE ORIE: Yes. Of course, we'll take some time to see whether
7 we can finally decide on the first motion. If so, we'll deliver the
8 decision and we'll then proceed. If not, we'll let the parties know and
9 we'll invite the parties to proceed on the assumption that what should be
10 said in case the motion would be denied.
11 MR. JOSSE: As I've already said, Mr. Stewart is aware of that.
12 Thank you.
13 [Trial Chamber confers]
14 [Trial Chamber and legal officer confer]
15 JUDGE ORIE: Before we adjourn, Mr. Krajisnik, it appears to us
16 that you have not informed counsel about the letter you addressed to
17 the --
18 MR. JOSSE: Your Honour, could I interrupt? I think I need to
19 make this clear. I saw Mr. Krajisnik at the UNDU yesterday, and without
20 in any way waiving privilege, he informed me and Mr. Karganovic.
21 Unfortunately, we were unable, through no fault of Mr. Krajisnik's, to
22 remove the disk which contained the material. So we have not seen it and
23 it was yesterday that he informed us.
24 Perhaps I should also add: He had alluded to the fact that he
25 either had done this or was going to do this. It was a little uncertain
1 to me in the past week or so. But it was yesterday he told me in terms
2 about his dealings both with the Chamber and indeed some dealings with the
3 Registry. So could I put that on the record?
4 JUDGE ORIE: Yes. That's fine. But at the same time, I can
5 imagine that you'd like to have a copy of the translation of the letter.
6 MR. JOSSE: Very much so.
7 JUDGE ORIE: Yes.
8 MR. STEWART: I'd just like to add, Your Honour, at risk of doing
9 a double act, there's no conflict between us. But in the course of an
10 extremely busy day, that information was transmitted to me by Mr. Josse.
11 But we had a meeting with the Registry as well, and my position at the end
12 of the day was I was unable to ascertain exactly what had gone to the
13 Registry. I knew something had gone to the Registry, but they had not
14 passed it on to me. That has been a topic of discussion, to try to reach
15 some sensible understanding between the Registry about transmission. I
16 had actually -- for whatever reason, I had no idea that Mr. Krajisnik had
17 been in direct contact with the Trial Chamber. It was slightly unclear to
18 me whether he had actually filed or not, and in fact it was unclear to the
19 representative of the Registry in the discussion yesterday. So that's the
20 position. But I didn't have any idea that he had been in direct contact
21 with the Trial Chamber, Your Honour. I did know he had been in some
22 contact with the Registry but I had not seen the material and I did not
23 myself see Mr. Krajisnik yesterday because, well, we can't do everything.
24 JUDGE ORIE: I understand. Perhaps in order to make matters even
25 more complex, I do understand that further correspondence was addressed to
1 the Appeals Chamber. A copy, as far as I understand, being sent to the
2 Trial Chamber. I have not seen the content. I just know that there is
3 such correspondence. The Chamber still will have to decide whether it's
4 of any use to read copies of correspondence addressed to the Appeals
5 Chamber, not through counsel.
6 MR. STEWART: To the Trial Chamber or Appeals Chamber, Your
7 Honour? Now I'm getting even more confused.
8 JUDGE ORIE: I think, as a matter of fact, that it's -- from what
9 I understood, it was addressed to the Appeals Chamber and that a copy was
10 sent to the Trial Chamber.
11 MR. STEWART: All right. Thank you, Your Honour.
12 JUDGE ORIE: Just for your information.
13 MR. STEWART: Yes. Thank you.
14 JUDGE ORIE: We'll adjourn for half an hour, and you'll learn
15 after this break whether the Chamber was able to reach a decision on the
16 motion to stay.
17 --- Recess taken at 10.20 a.m.
18 --- On resuming at 11.07 a.m.
19 JUDGE ORIE: The Chamber apologises for having taken a bit more
20 time, but finally it preferred to see whether it could present a decision
21 to the parties rather than to leave them in uncertainty.
22 Therefore, I will first give a decision on the motion, the Defence
23 motion, to stay. The motion is denied, and a written decision will
24 follow. And the Chamber tries to do its utmost best to file that written
25 decision still this afternoon.
1 Then the next point on the agenda is that the Chamber gives an
2 opportunity to the parties to make further oral submissions on the motion
3 for extension of time. And perhaps, but I'm looking at you, Mr. Stewart.
4 You specifically asked for oral argument. Do you think that it would be
5 of any use to already know what the initial response of the Prosecution
6 would be so that you can take that into account if you make further oral
7 submissions, or would you consider the oral submissions you have in mind
8 of such a character that we should rather wait to give an opportunity for
9 the Prosecution to respond?
10 MR. STEWART: Well, Your Honour, it would probably be a quite
11 helpful to hear what the Prosecution had to say, but it occurs to me, it
12 is a question of what Your Honours have in mind. Because it seems quite
13 likely that some things I say will lead the Prosecution to wish to say
14 something else. If they are perhaps two bites in that way, that might be
15 quite helpful, but I'm in Your Honour's hands. It's not a big issue for
16 the Defence.
17 JUDGE ORIE: Yes. This observation certainly assisted.
18 Mr. Tieger, or Mr. Harmon, would it be a good idea that you
19 briefly respond to the motion at this moment so that at least the Defence
20 knows what your position is, and that if anything to be submitted at a
21 later stage by the Defence would trigger any need to further respond, that
22 we'll give an opportunity to you later?
23 MR. TIEGER: Well, it remains to be seen precisely how helpful
24 that will be, Your Honour, but I'm happy to provide some preliminary
25 response and guidance.
1 JUDGE ORIE: Yes.
2 MR. TIEGER: That would be essentially as follows: The
3 Prosecution submits, number one, that the test that the Defence appears to
4 be urging the Court to use in determining this motion is unsupported by
5 any jurisprudence or case-law. We find that the -- essentially that the
6 factual underpinnings for this particular motion have been raised on
7 previous occasions and addressed by the Court, and in that respect, the
8 Prosecution does not find any change of circumstance or underlying basis
9 for the motion which would justify any departure from or deviation from
10 the Court's previous orders.
11 We also intended to note at least one of the specific aspects of
12 the motion. That was the Defence's reference to or acknowledgment of the
13 accused's failure to make the required financial contribution. Without
14 belabouring that point at this stage, we would simply note that the impact
15 of $180.000 of legal services on the ability to produce an exhibit list
16 and a 65 ter list is immense, and I think it's very clear that at a
17 minimum, one would expect that the 65 ters would have been completed and
18 that indeed the remainder of the deficit between where the Defence says it
19 now stands and what the Court order was would have been bridged.
20 So that's fundamentally our position in response. I don't know if
21 I've omitted any particular detail that might have been of greater
22 assistance to the Defence in making its current argument or might have
23 narrowed the issues which it needs to address, and I'm happy to respond to
24 any questions the Court might have, but I trust that provides a sufficient
25 insight into the Prosecution's position on the motion generally.
1 JUDGE ORIE: Thank you, Mr. Tieger.
2 Mr. Stewart.
3 MR. STEWART: Well, Your Honour, I must say straight away, that is
4 helpful. It's extremely helpful to have that brief summary of the
5 Prosecution's position. I'll comment immediately on two of those points,
6 then, and then come back to the question of the test.
7 But on two of those points, secondly, the second point was that,
8 well, essentially in a nutshell nothing has changed. There's no reason to
9 depart from previous orders.
10 What has changed is that it is the 28th of September, 2005, today,
11 and it's as simple as that, that the question is: Where are we now? Not
12 where we have been. Where we might have been is another issue perhaps
13 that comes into play later. But it isn't a question of, well, what was
14 the right thing for the Court to have done at some date in the past in the
15 circumstances in the past? Of course there's an obligation to show some
16 changed circumstances, but the changed circumstances are in effect the
17 circumstances as we have them today, and that's the basis on which we
19 The third point that was made, which is the acknowledgment in the
20 motion of the accumulated backlog or deficit of $180.000 approximately in
21 Mr. Krajisnik's contribution, and that is of course on the application of
22 the Rules and requirements and directives, there is, as we said in the
23 motion, there is no coherent legal or factual submission that we can make
24 against that. The difficulty, as we have identified it in the motion, is
25 that if it's said, well, $180.000 would -- of legal services would have
1 enabled us to file a complete list of exhibits at this point, even if
2 that's true, because we didn't have the $180.000. We haven't had those
3 legal services. We are not in a position to do it. The trouble is, one
4 can't change the real world. So we are presenting the Court very frankly
5 with the real-world position. The real-world position according to the
6 Rules of this Tribunal is there's an accumulated deficit of $180.000.
7 Moving from that as, if you like, the real-world position for the purposes
8 of this case, that means we might have had, if that money had been
9 available, $180.000 worth of services, but we haven't. And that's the
10 real world. And the real world, as we've indicated, is that we cannot and
11 are not in a position to file the list of exhibits.
12 So going back, then, to the observation that Your Honour made at
13 the beginning of the morning. It no doubt was in some way an unpleasant
14 surprise for the Trial Chamber to receive what is described as a
15 fait accompli. The problem we have on the Defence side is that what we
16 would have liked to be a fait accompli by the deadline was in fact a
17 fait non accompli because we are not able, had not been able to do it.
18 And the element of surprise there, Your Honours, with respect, has to be
19 judged against the fact that I did make it crystal clear at the 65 ter
20 discussions which led to the variation of the scheduled order that the
21 Defence could not do this task before the 1st of October. And when
22 pressed, I indicated that the 1st of October was a date before which we
23 could not do it without my being able to say what date after the 1st of
24 October was the date when we could do it, though I did make it clear that
25 I wasn't talking about I think -- what I said was I'm not talking about
1 the end of November or Christmas or anything like that, but I did make
2 that plain, Your Honours.
3 Now Your Honours didn't accept it in the sense that you did grant
4 the extension by the order of the 26th of August, but accompanied it with
5 recitals that the Trial Chamber had shown exceptional flexibility and with
6 a specific recital that we had not in fact shown good cause. So it's not
7 difficult to understand how a Trial Chamber that does not believe that
8 good cause had been shown to vary the order but has nevertheless varied
9 the order might, from its perspective, look upon what's happened perhaps
10 as an unpleasant surprise. But the element of surprise must be severely
11 qualified in the way that I've indicated.
12 I should just mention, Your Honour, that in an attempt to be at
13 least as helpful as we could in the circumstances, Your Honours will be
14 aware, that we did notify the Trial Chamber on the Friday that the motion
15 would be filed on the Monday. We just did not have time, with everything
16 else, to complete it by the Friday. That has the slight advantage that we
17 were able to bring the position bang up to date on the Monday.
18 Your Honours, may I at this point just invite one piece of
19 information, and it's something Your Honours haven't raised it yourselves,
20 so may I, with respect, do so. We did at the end of our motion raise the
21 question of the inaccuracy or incorrectness of a passage in the Trial
22 Chamber's reasons for oral decision. Your Honours will be aware of that,
23 where Your Honours had said that resources made available to the Defence
24 team had increased or improved since the 24th of May. As we indicated in
25 the motion, the Registry and we are agreed that that is wrong. Now, in
1 the end, we are not the Judges. But may I, with respect, just invite the
2 Trial Chamber to indicate whether it is accepted that that assertion in
3 those reasons was wrong?
4 JUDGE ORIE: We'll have to look to that exactly. I'll first have
5 to reread it and to see what was exactly on our mind. I think it had
6 something to do with the additional funding of investigators for, what was
7 it, a thousand? Is that --
8 MR. STEWART: I'm asking the question. If Your Honour throws back
9 the question at me, I can't read Your Honour's mind, with respect.
10 The difficulty here, Your Honour, is that I do, with respect, need
11 an answer to this, because it's hampering my submissions. If I don't know
12 what has been in the Trial Chamber's mind in relation to resources, which
13 is, after all, a highly material issue here, especially --
14 JUDGE ORIE: I remember that there was an issue of the willingness
15 of the Registrar to add, although limited, funds for investigations. It
16 comes to my mind as I think it was $1.000 a month, but I'm not quite sure
17 about the amount. And there was also a kind of an arrangement which
18 would, as far as I understood, facilitate the replacement of co-counsel
19 and that there would be some additional --
20 MR. STEWART: Your Honour, that's absolutely wrong, with respect.
21 Your Honour, this shows the enormous dangers. May I say, Your Honour,
22 with the utmost respect, that that is an extremely woolly approach to an
23 important issue. It is, Your Honour. It is vague, it is wrong, it's
24 making assumptions in an extremely important area. It's quite clear that
25 the Trial Chamber has all this material, inaccurate, incorrect, vague
1 material, in its head, as some of the basis on which these decisions on
2 scheduling are being made.
3 JUDGE ORIE: Let me then ask you very precisely, Mr. Stewart: Is
4 it true that the Registry has expressed its willingness to add to the
5 amount available for the Defence, an, although limited, amount of money to
6 be spent on investigators?
7 MR. STEWART: It is true, Your Honour, that the Registry finally,
8 after about six months of negotiations, made an offer in a letter to me
9 dated the 2nd of September, 2005, which was a week after the variation of
10 the Scheduling Order, and some three or four months, and just on my feet
11 doing the mental arithmetic, after the date Mr. Krajisnik expressed the
12 wish to represent himself. The negotiations between the Registry and the
13 Defence team, from the point where it was first indicated there might be
14 some crack in the position up to February, that there would under no
15 circumstances be any additional funding for the Krajisnik Defence team.
16 The first crack appeared in February. Negotiations have continued ever
17 since. They were not speeded up, I should say, Your Honour, they were not
18 speeded up by the involvement of Mr. Krajisnik to produce tripartite or
19 quadrapartite negotiations. They simply weren't. In fact, the opposite.
20 And the culmination is what I've said, Your Honour, that on the 2nd of
21 September an offer was made. It's a more complicated position there, Your
22 Honour, but we met the Registry. Mr. Josse and I went to see the Registry
23 yesterday. We had further discussions about that matter. But the simple
24 position, Your Honour, is that no, no resources have been -- there has
25 been no increase or improvement in resources since the 24th of May.
1 JUDGE ORIE: If need be, we'll seek further information from the
2 Registry, Mr. Stewart. I do understand that you say that there were no --
3 I was talking about willingness to give additional funding. You say this
4 has not materialised until now, although I do understand that there's an
5 offer, but I also understand from your words that, for whatever reason,
6 whatever negotiations, situation, that offer has not yet been accepted,
7 has not resulted yet in any additional funding.
8 MR. STEWART: Well, that's -- yes, the last bit is -- it's
9 slightly complicated, Your Honour, because there are questions of the old
10 and the new Trial Chamber scheme. That way lies madness. We can explore
11 it if necessary. But Your Honour, the nub of the point here is that what
12 was said in that decision, which is unequivocally an assertion by the
13 Trial Chamber that resources had increased or improved, is simply wrong,
14 Your Honour. And the question of the transition or change of co-counsel,
15 it is also absolutely correct that no additional resources were made
16 available. Discussions and negotiations, and it did involve that, with
17 the Registry in relation to the change of co-counsel proceeded on the
18 insistence that it could be cost-neutral for the Registry, and with very
19 considerable difficulty, I must say, Your Honour, and cooperation with all
20 sort of people concerned, we were able to achieve that. It's not a
21 trivial matter.
22 May I say, Your Honour, Your Honour refers to inquiries made of
23 the Registry. We have had, from the individuals specifically assigned to
24 our case, we have had enormous help, which we appreciate in these
25 discussions and negotiations from the specific individuals with whom we
1 have day-to-day dealings, and we do appreciate that. Nevertheless, the
2 whole process has taken a very long time.
3 But one of the things that has troubled us, Your Honour, is also
4 there was a reference in that same decision, the reasons for oral
5 decision, et cetera, et cetera, there was a reference to a memorandum or a
6 note which was sent by the Registry to the Trial Chamber which we, the
7 Defence team, had not seen. And that's in principle an unsatisfactory
8 situation when material is referred to expressly and taken into account
9 for the purpose of the judgement without the Defence team even having seen
10 it, let alone had the opportunity of making submissions.
11 JUDGE ORIE: Mr. Stewart, it goes without saying that if the
12 Chamber is provided with information which is not available to the
13 Defence, I'm a bit more hesitant on the form in which it is presented,
14 whether under all circumstances. But certainly preferable that the
15 Defence would have seen the form in which it has been presented to the
16 Chamber. That goes without saying. And if any mistake has been made in
17 that respect, we'll certainly pay proper attention to that.
18 MR. STEWART: The essential point, Your Honour -- Your Honour
19 said, well, in relation to the matter I just raised a moment ago that
20 inquiries be made to the Registry.
21 JUDGE ORIE: I had in mind to invite the Registry to come to court
22 and to explain the situation.
23 MR. STEWART: Your Honour, that would be 100 per cent
24 satisfactory. That would deal with the obvious point, which was that
25 everybody should know what is being said and taken into account and taken
1 into consideration.
2 The reference to that particular memorandum, which we have been
3 supplied with by the Registry just recently, recently, I think it was some
4 time last week, but I don't remember exactly. It might have been the week
5 before, was referred to in paragraph 18 of that decision.
6 So, Your Honour, that's the position.
7 So far as the test is concerned, Mr. Tieger, but I suppose I
8 should know what my own test is. Mr. Tieger didn't indicate precisely
9 what test he was referring to. But I assume that he's referring to the
10 criterion or criteria that we mention in our motion, particularly at
11 paragraph 10 we start. But paragraph 9, the question whether the Defence
12 are able to file any of what I've called the three components. And given
13 that part of -- an important part of the reason for seeking an oral
14 hearing, Your Honour, is so Mr. Krajisnik can understand what is going on.
15 The three components are the list of witnesses required under 65 ter, the
16 summaries, which is obviously closely linked, but it's a different item.
17 It requires of course considerably different and extra work. And then
18 thirdly, the list of exhibits. So those are the three components. And
19 our submission was that the -- able to file the first question, leave
20 aside responsibility and financial matters, the first simple question is
21 whether the Defence are in fact able to file. Because no court, whatever
22 its powers and its jurisdiction, can in fact make people do the
23 impossible. They can make them try, but it can't make them do it.
24 And the able to file, we submit and summarise, means able to file
25 in a complete form and to a standard which leaves no significant
1 deficiencies for the purpose of effect presentation of a defence to the
2 charges of Mr. Krajisnik having regard to the gravity. And, Your Honour,
3 because it is an issue which has arisen before, I do want to make it,
4 please, crystal clear, that this is not a reversion by the Defence to some
5 submission that perfect order is required or perfection is required in
6 relation to submissions, or even that there is in this human world a
7 perfection in the administration of justice. Because there isn't, and
8 that's absolutely acknowledged. We are talking there about something
9 which a standard which leaves no significant deficiencies. And we're
10 talking about material deficiencies, which means that the stuff is simply
11 not ready to file in a proper form which does the job. And we are talking
12 about adequate. We are not talking about deluxe. Your Honour, the
13 suggestion that the Defence has been able to adopt anything remotely
14 approaching a deluxe standard in relation to anything at all in this case
15 would be absolutely absurd in the circumstances. We don't do this. We
16 are fighting all the time to achieve the bare minimum standard.
17 And Your Honour, our submission in paragraph 11 of the motion, it
18 may appear to have an element of defiance about it, but that isn't its
19 purport. We say unless specifically directed to do so. But we must not,
20 as counsel, file material on behalf of Mr. Krajisnik on these grave
21 charges which is below that minimum adequate standard. It is our duty not
22 to do that and to say we do not have the material ready to file. If one
23 takes the extreme case, supposing we just have a rag-bag of scraps of
24 paper with bits of notes on for 65 ter, well, it would be ridiculous, I
25 suppose, if we've got to file those and those are supposed to constitute
1 our 65 ter summaries. We're not in that position, Your Honour. We have
2 worked hard on this. The updated number of 65 ter draft summaries which
3 I'd indicated is a highly variable -- it's got a highly variable standard
4 in it because they have been done by all sorts of different people on the
5 Defence team. I'm not suggesting I do the best ones, but let's say that
6 counsel would normally be expected to produce at the top end of the scale
7 as far as quality is concerned. And it would be unfair and unreasonable
8 to expect a very inexperienced intern fresh to the case with no practical
9 experience to produce to the same quality as counsel. It would be pretty
10 telling for both if that were the position.
11 So it's a complete spectrum of material, and it does require, as
12 we've indicated, considerable further attention from counsel.
13 Now, Your Honour, what I would like to do is then turn straight
14 to, in a sense, what, were those submissions about the standard, is the
15 nub of the practical position as it is today, which is the point. And we
16 have set that out, and we updated it last night to give the up-to-date
17 figure on the number of draft 65 ter summaries prepared. We have given
18 the Trial Chamber, and of course the Prosecution as well, our annex, which
19 sets out in a really far more detailed, practical way than a team is
20 normally expected to produce, but in the circumstances of this case, we
21 see it as our duty to keep the Trial Chamber as fully informed as we can
22 in relation to such matters. It does set out, as Your Honours can see, in
23 some detail, where we have got to in terms of the amount of material and
24 the timetable. And Your Honour, what I also do, with respect, issue as a,
25 we say, legitimate invitation to the Trial Chamber, is this: That under
1 the summary of the projected timetable for Defence work, we indicate,
2 based on the material set out on four and a half pages of the annex, we
3 indicate counsel days required. And we do submit that that is a sensible
4 way of dealing with it, because the support staff, for all their manifest
5 qualities, are that, the support staff work at every level has to feed
6 into the work of counsel. Of course we delegate as much as we can, but in
7 the end, the product has to be produced by counsel and submitted by
9 JUDGE ORIE: Mr. Stewart, may I just ask one question.
10 MR. STEWART: Yes, indeed, Your Honour.
11 JUDGE ORIE: If you and Mr. Josse are working on a Monday, is that
12 one counsel day or is that two counsel days?
13 MR. STEWART: Two counsel days, Your Honour.
14 JUDGE ORIE: Thank you.
15 MR. STEWART: Yes, that's the unit. And I'm glad to be able to
16 give that clarification.
17 Yes, because, Your Honour, there might be a day that Mr. Josse has
18 as his day off and another day that I have as my day off and so on. So
19 that's clear.
20 So, Your Honour, we calculate it. We do suggest that's a sensible
21 unit to use. That's the key constraint on all final products on behalf of
22 Mr. Krajisnik. And we do delegate, of course. Why wouldn't we? We're
23 not crazy. Why wouldn't we delegate whatever we can, reasonably and
24 safely delegate to the relatively small team we have, of course.
25 What we have then done is we've given the total days available
1 from now until the date of the 12th of October, is what we get to, in
2 effect. It's a bit of chicken and egg. You do some figures, you lead to
3 a date, and so on. But we've included all dates there. Seven days a week
4 we included in what's totally available. We then subtract days which are
5 needed for other things. And there, Your Honour, I would just issue this
6 invitation: Your Honours have had the opportunity of reading this annex.
7 Rather than my go through what might be the entirely time-wasting exercise
8 of explaining or defending particular elements in that calculation, which
9 are not in dispute, which are readily accepted by the Trial Chamber, by
10 invitation is if there are any items, and Your Honours have had a chance
11 to look at it, if there are any items in that calculation, if there are
12 any elements in that subtraction about which the Trial Chamber has any
13 questions, needs any clarification or has any significant doubts, then the
14 most useful use of the remaining time that I have for the purpose of my
15 submissions this morning is for me to have the opportunity of attempting
16 to answer any such questions or doubts.
17 That's an invitation there, Your Honour, because that is, in my
18 submission, a reasonable, practical approach. We've set it out. Does
19 anybody have any questions about it?
20 Your Honour, may I add, just on a note: It was unconnected
21 initially, but Your Honours know that I wrote, in effect, personally, but
22 as counsel, but I wrote to Mr. Harhoff, with the intention that
23 Mr. Harhoff should transmit the material to Your Honours, as he has done,
24 and he and I had an informal word, I copied to the Prosecution a letter in
25 relation to my own, and I do put it this way, but it is really strongly
1 supported by those around me, my own need to have some sort of break from
2 this case, which I have not been able to take over the last few months.
3 Your Honour, the only -- I'm not going to elaborate that here this
4 morning, but just to say, Your Honour, that this work on the annex was
5 done after that letter, and what it has -- and they were not done
6 together. They were not merged together in some deliberate way. The
7 result of this annex just leads me to this, Your Honour: That I can see
8 that the precise dates which I indicated in my letter could be potentially
9 disproportionately disruptive in the light of what's set out in the annex.
10 Therefore, Your Honour, I would be -- I hope Your Honours don't object to
11 the tone in which I've put this. I would be prepared to defer those dates
12 by one week.
13 JUDGE ORIE: Yes. I must admit, Mr. Stewart, that the Chamber had
14 some difficulties in reconciling what was in your letter, which was dated
15 the 23rd of September, and from what I understand was received only by the
16 26th of September, with what we find in the motions that have been filed,
17 especially the motion we are discussing now, on the 26th of September.
18 MR. STEWART: I'm sorry, Your Honour. I'm not following that. If
19 you --
20 JUDGE ORIE: The dates on when you thought you would not be
22 MR. STEWART: Yes, indeed, Your Honour. It is for precisely that
23 reason. It is that those documents were not prepared together. The
24 letter about my break was written first, before reviewing in detail. I've
25 now realised, having done this, that reviewing my letter in light of the
1 annex, the specific dates I had in mind would be, as I've said,
2 disproportionately disruptive. Therefore, I am suggesting I would adjust
3 the date in my letter.
4 JUDGE ORIE: As a matter of fact, in your letter you pointed at
5 the week starting the 10th of October and the week starting the 17th of
6 October, including the 24th of October, which is a UN holiday, so being
7 available again on the 25th, from what I understand.
8 MR. STEWART: I think, as a matter of fact --
9 JUDGE ORIE: Approximately two weeks.
10 MR. STEWART: -- 24th, but that's not --
11 JUDGE ORIE: What you now say is please understand that to be as
12 everything moved one week.
13 MR. STEWART: Exactly, Your Honour. It obviously makes sense from
14 everybody's point of view that I incorporate that week when the Court has
15 already indicated it's not sitting.
16 JUDGE ORIE: Yes.
17 MR. STEWART: But that -- so there's a long stop in a sense for
18 two reasons. One, because if it goes any longer than a week's deferral, I
19 don't get to incorporate that week; and secondly, Your Honour, quite
20 frankly, I cannot keep going for that much longer. It's as simple as
22 JUDGE ORIE: Yes. At least it's clear to us now. And I wouldn't
23 say that it resolves the problem, because we've -- we've spent quite some
24 time to see how to reconcile your suggestions in your letter and the
25 matters raised in the motion, and we might have to restart that. But
1 please proceed.
2 MR. STEWART: I understand, Your Honour. But I hope Your Honours
3 at least see that whatever the content, at least see that actually giving
4 the Trial Chamber notice and setting that out in my letter was intended
5 constructively to give advance indication rather than simply spring
6 something that is necessary.
7 I should say, by the way, that whatever differences there might
8 be, and there are from time to time, quite naturally, as in any case,
9 between Mr. Krajisnik and myself, I do, with appreciation, acknowledge
10 that Mr. Krajisnik himself is extremely understanding and supportive of
11 such matters in relation to his Defence team, and he understands full well
12 the need for conservation of energies for a marathon that is not a sprint,
13 and I do wish to acknowledge that.
14 So, Your Honour, that invitation -- because -- well, may I put it
15 this way, Your Honour. The Defence would prefer not to hear points in a
16 judgement which it might have been able to answer but was not asked to
17 deal with and didn't have the opportunity of answering. So if there are
18 any specific misgivings in relation to any of those elements which we have
19 attempted to pare to the bare minimum, Your Honour, to cause the least
20 disruption, then I would, with respect, like to know what they are.
21 JUDGE ORIE: The Chamber, Mr. Stewart, is hesitant to enter into
22 the internal scheduling of the Defence. The Chamber is hesitant to give
23 comments on this could be reasonably done in so much time, that should
24 have priority, this -- I mean, that's all a matter for the Defence team
25 itself to decide. And of course the Chamber has discussed these matters,
1 and the Chamber avoids to enter into any debate on how the Chamber would
2 consider that time could be saved on one element, more time would be
3 needed on other elements. Because the Chamber would then interfere in
4 what it considers to be entirely within the realm of the Defence.
5 MR. STEWART: Your Honour, I understand that. The difficulty,
6 with respect, is this: That when the Trial Chamber, and this is -- when
7 the Trial Chamber will not accept assertions from counsel, if there isn't
8 enough time, and the good-faith, professional assertion at the 65 ter
9 conference, notwithstanding the variation of the schedule, was, in express
10 terms, not accepted, because it was said that no good cause had been
12 Now, if the Trial Chamber at any point does not accept that
13 assertion, and insists, as the Trial Chamber is doing, that the Defence
14 gives fuller and more information in relation to the matter, then that
15 information which we give does inevitably go into that normally private
16 area of what our allocation of time is and what we do. If it is the Trial
17 Chamber's position that it accepts that and accepts that that is a matter
18 for us and that these items, as listed as subtractions are legitimate
19 items, that they do require the time required and they do require them
20 within this immediate short-term period, then that is an end of this
21 issue. And I would then be entirely content, with respect, to endorse
22 Your Honour's approach, that it is then left to us and the Trial Chamber
23 does not in any way interfere.
24 What I'm just concerned about is that the Trial Chamber then --
25 what I in a sense don't want to read and hear, Your Honour, is that in a
1 judgement there is then some analysis of that, there is some criticism of
2 that, there are adjustments made by the Trial Chamber when we haven't had
3 a fair opportunity to answer the point. Because our position, Your
4 Honour, is quite simple: All of these tasks have to be done.
5 May I, for example, say: I know Your Honour is reluctant to
6 answer questions, but we say surely the whole purpose of oral hearings and
7 surely under this hybrid system, whatever else, part of the benefit of
8 these oral hearings is to enable some exchange rather than everybody just
9 standing up in turn and saying their piece with the Trial Chamber coming
10 up at the very end.
11 So are any of these items -- I do, with respect, repeat the
12 question: Are there any of these items where there's any possibility that
13 the Trial Chamber is going to say, No, we do not regard that as a
14 legitimate expenditure of counsel's time, and therefore we are going to
15 insist that that time is notionally, if you like, is actually, or for the
16 purpose of calculating the schedule, notionally transferred to other work?
17 Because if that is the position, it is a highly material point.
18 JUDGE ORIE: Since you have put the question for the second time
19 and seemed to be not fully satisfied by the answer I gave, and I can tell
20 you I gave it on behalf of the Chamber, even without consulting at this
21 moment my colleagues, we will during the next break see whether the
22 Chamber would consider to give any other answer than I gave already.
23 Please proceed.
24 MR. STEWART: Your Honour, with respect, that's an entirely fair
25 and acceptable. I should say that straight away.
1 Your Honour, there is a really serious issue at the heart of this
2 motion. Are we to be compelled by a series of court orders and scheduling
3 to do tasks which are counsel's tasks on behalf of Mr. Krajisnik
4 inadequately because of the difficulties that we refer to in our motion,
5 difficulties of funding, are we to be required to do that? Because the
6 problem is, yes, some jobs can simply be done inadequately, in the sense
7 that they can be done.
8 We can file a batch of clearly inadequate 65 ter summaries that
9 have not been properly considered and not been properly reviewed. We can
10 file a list of witnesses which is not a properly, fully, adequately
11 considered list of witnesses. In the end, yes, we can do it. I should
12 say, Your Honour, we couldn't do it this afternoon or tomorrow or this
13 week. We could file something -- list of exhibits is a real problem, Your
14 Honour. We could file something that looks like a list of witnesses, that
15 feels like a list of witnesses. We can file something that looks like a
16 pile of 65 ter summaries and feels like and reads like a pile of 65 ter
17 summaries. Yes, we can be compelled to do that, if a pre-emptory, or
18 perhaps that's the wrong word, a very specific, absolute final direction
19 is given that in a few days' time we should do that, yes, we can do it, if
20 it is accepted that Mr. Krajisnik does not then receive an adequate
21 defence. He is -- the deficiencies in his defence -- if the Trial Chamber
22 wishes to say the deficiencies in Mr. Krajisnik's defence are his own
23 fault, that inadequacy of funding is the explanation, well, that's the way
24 in which we'll have to proceed. It's the Defence's submission that this
25 trial has largely been conducted on that basis, not expressly acknowledged
1 anyway, but has largely been conducted on that basis anyway. If that is
2 the way we are to continue, then we submit that it really ought to be
3 clear so that everybody knows where they are. But if what this Trial
4 Chamber is requiring from counsel is something which meets the minimum,
5 adequate requirement for effective assistance of counsel to produce an
6 effective defence in this case, then this is the minimum time that is
7 needed for this stage of the proceedings. And that issue really has at
8 this point in this trial, that issue has to be faced head on.
9 JUDGE ORIE: Thank you, Mr. Stewart.
10 Mr. Tieger, have the observations made by Mr. Stewart triggered
11 any need to respond?
12 MR. TIEGER: Yes, Your Honour, I believe so. Just a couple of
13 points in response to Mr. Stewart's comments.
14 First, Mr. Stewart noted the Prosecution's comments about the
15 absence of the $180.000 of funding, and I believe dismissed the impact of
16 the failure to provide funding by simply noting that indeed things might
17 have been different but the Court has to simply deal with the reality of
18 things as they currently are. With respect, I think that circumvents the
19 question of accountability and responsibility for existence of that
20 situation, and we submit that the accused cannot take action that should
21 not be taken or fail to take action that he's required to take and then be
22 heard to complain about the consequences of that action or that failure to
24 I should also respond to the Defence's comments about my earlier
25 reference to the Court's previous determinations on motions to adjourn or
1 to extend the time. Again, I think Mr. Stewart focussed on an alleged
2 distinction between where we might be and where we are now. The
3 Prosecution's point, and that related again to the standard set out by
4 Mr. Stewart, is that the focus is not necessarily -- the focus of the
5 Defence test is not necessarily placed properly. So the Defence test,
6 insofar as I'm able to understand it - and again I emphasise that I don't
7 see a reference to any particular jurisprudential basis for that - is that
8 we now find ourselves at the point he describes or that is described by
9 the Defence motion in paragraph 10, that is, whether the case is now at a
10 point where significant deficiencies exist, and so on.
11 I believe that in the previous motions, as reflected in the Trial
12 Chamber's earlier judgement, as reflected in the judgement by the Court of
13 Appeal in respect to this particular motion and as reflected in a battery
14 of reasonably similar motions made in a number of other cases, the
15 question is broader than that, and that is whether or not sufficient time
16 or adequate time has been -- and resources have been accorded the Defence
17 in order to prepare an adequate defence. And there are repeated
18 references to that much broader test, whether or not sufficient time and
19 resources have been allotted to permit a reasonable defence. So the focus
20 is not simply on where we are now, but what the broader situation is and
21 has been.
22 That's what we'd focus the Court on. And our reference to the
23 earlier determination by the Court was that the same considerations were
24 raised with respect to the same issue, and the Court addressed those. We
25 submit both retrospectively when the motion was made, and obviously
1 prospectively in the context of the case. And we think that's the basis
2 on which the Court needs to make its determination. That test, I believe,
3 also embraces the Defence argument that the Court hasn't accepted its
4 good-faith assertion about time. Again, the test is not the subjective
5 determination of either party, but the question of whether objectively
6 sufficient time and resources have been allocated for the preparation of
7 an adequate defence. And in that respect, we do submit then the Court's
8 previous determinations bear significantly on the motion that is before
9 the Court today.
10 Finally, Your Honour, we would simply note this: That whatever
11 decision the Court makes and whatever point is selected for the
12 re-institution of this case, the Prosecution is entitled, under
13 Rule 73 ter, to the full list of exhibits and to the full list of 65 ter
14 summaries. And within a sufficient period of time before the
15 recommencement of the case, so that we can deal with those appropriately.
16 We would note that in the earlier portion of the case, to the best
17 of my recollection, the Prosecution was required to submit those at least
18 two weeks in advance of the hearing -- of the date on which the
19 particular -- on the commencement of our case, far beyond that, and then
20 any modifications of that were required at least two weeks in advance of
21 the individual witness appearing.
22 So we would request, as we have on earlier occasions, to have the
23 complete list of the 65 ter summaries and of the exhibits.
24 Nevertheless, it does seem to me that there is no contradiction in
25 asking the Defence to submit whatever 65 ter summaries currently exist and
1 whatever exhibit list it currently has, so that the review process can
2 begin as soon as possible. That doesn't undercut our entitlement to the
3 entire list, but there's certainly no reason not to get started on that
4 process as quickly as we can.
5 Thank you, Your Honour.
6 JUDGE ORIE: Thank you, Mr. Tieger.
7 Mr. Stewart.
8 MR. STEWART: Your Honour, may I cite three short passages from
9 the appeal decision on the interlocutory appeal on our second Defence
10 motion for an adjournment. This was the decision of the Appeals Chamber
11 of the 25th of April this year. Paragraph 2, at page 2 -- page 2 of the
12 printout. It's paragraph 2, anyway: "In rendering the impugned decision,
13 the Trial Chamber stated that it would continue to monitor the state of
14 the accused's defence to" --
15 THE INTERPRETER: Could the counsel please slow down.
16 MR. STEWART: Yes, of course. I'll do that again, Your Honour. I
17 was too fast.
18 "In rendering the impugned decision the Trial Chamber stated that
19 it would 'continue to monitor the state of the accused's defence to ensure
20 a fair trial'." That's a general statement. It's just -- this is
21 intended in response to the submission that all we've really got to do,
22 unless -- and I suggest this isn't an unfair summary -- all we've really
23 got to do is look back at the past decisions made by the Trial Chamber and
24 nothing has changed.
25 The second passage is at page 23, where the Appeals Chamber said:
1 "It" - that's the Trial Chamber - "reasonably found that adequate time
2 had been allowed for preparation of cross-examination of witnesses, and
3 that in other areas, the Krajisnik Defence would have sufficient time
4 during preparation of the Defence case, and in the presentation of it, to
5 prepare adequately."
6 Well, so we would have sufficient time during preparation of the
7 Defence case, which is clearly distinguished from the presentation of it,
8 so clearly you, the Trial Chamber, and the Appeals Chamber there, were
9 clearly referring to the point before the first witness was called in
10 referring to preparation of the Defence case. So what we're looking at
11 now is whether we have had and are having adequate time during the
12 preparation of the Defence case. And Your Honour, without belabouring the
13 arithmetic, we looked at it on the 65 ter, the time given between the
14 closing of the Prosecution case and the beginning of the Defence case, the
15 original time proposed by this Trial Chamber was severely less than what
16 had been contemplated previously.
17 And then the third passage, at page 7, paragraph 29, in relation
18 to strategy: "A Defence strategy can also be expected to be developed and
19 refined in light of the case presented by the Prosecution as that case
20 unfolds. Accordingly, if the Defence has not had sufficient time at this
21 juncture to prepare an adequate strategy, it should allocate its available
22 time to that task prior to the presentation of its own case when it has
23 the benefit of having heard the Prosecution case in its entirety."
24 Well, Your Honour, we had the benefit of hearing the Prosecution
25 case in its entirety on the 22nd of July. By that time, co-counsel at the
1 time was already, and I mean it metaphorically, dead on her feet, and had
2 been for a little while. The time that we have had available to do that
3 task - that's the strategy task - has to be combined with every other
4 task, has to be combined with these tasks. And what I'm saying here, Your
5 Honour, is just that it is absolutely compellingly incumbent upon the
6 Trial Chamber not simply to turn back to those earlier decisions which
7 were dealing with other aspects of the case at another time in other
8 circumstances, and it's incumbent, heavily incumbent upon the Trial
9 Chamber to meet its own commitment in the first of those passages, to keep
10 the matter under review and look at the position as it is.
11 The problem, if you like, or the issue which Mr. Tieger raises in
12 relation to -- perhaps I should just comment on this, Your Honour, in
13 relation to what I said about co-counsel, which had broader application to
14 the whole team, but co-counsel naturally had to bear a very heavy burden.
15 Counsel does bear the brunt of cross-examination. And Your Honours can
16 look back at the period from February the 28th, when we reviewed --
17 resumed the case, and then, in particular, the period May, June, and July.
18 And the programme of this case was, by any standards, absolutely
19 punishing. And what I've said about co-counsel does have -- she's no
20 longer with the case, but does have application to the whole team. Of
21 course I had to impose very heavy demands on my co-counsel at that time,
22 and I acknowledge that, in order just to get through the programme of this
24 And what has happened since the 22nd of July can only fairly be
25 assessed in the light of what was imposed upon this Defence team, and
1 particularly counsel. Because it wouldn't have mattered if we had had
2 $1.8 million to spend on support staff. If we've only got two counsel,
3 then two counsel would have had to do and meet the schedule and deal with
4 that punishing period. And it was two counsel. And it's a red herring if
5 anybody suggests that effectively there were three counsel. That's not to
6 disparage Mr. Josse's enormous contribution. Now he is co-counsel. But
7 during that period. Because for practical purposes there were two of us,
8 notwithstanding Mr. Josse's involvement occasionally at the very end of
9 the Prosecution case.
10 So that's where we are. In relation to what Mr. Tieger says about
11 the filing of list of exhibits: Without necessarily accepting that there
12 shouldn't be some exceptional flexibility shown somewhere in relation to
13 that matter, we acknowledge that that is the prima facie position, that
14 under the Rules as they stand, yes, that is the starting requirement and
15 entitlement of the Prosecution, unless there are good reasons for some
16 departure that they should have the entire list of exhibits. That's part
17 of the problem, Your Honour, because the 65 ter material, the three
18 components, really should be filed as a package, all of them done
19 adequately. If there is some way. And we would be more than happy to
20 enter into a constructive procedural discussion to see whether there is
21 some way round the problems in relation to the list of exhibits which
22 would be fair to the Prosecution, which would satisfy the Trial Chamber,
23 and which would be practically achievable by the Defence. Well, we'll
24 happily enter into such discussions. But if it is that all three
25 components have got to be filed and then the 73 ter matters contemplate
1 and from a sensible point of view can only be considered in the light of
2 at least something which resembles a proper 65 filing of -- proper filing
3 of 65 ter required materials, whatever qualifications or adjustments might
4 be made in relation to the last of those components.
5 Your Honour, it's back to really where I started. We can attempt
6 the impossible, but we can't do it.
7 JUDGE ORIE: Thank you, Mr. Stewart.
8 [Trial Chamber confers]
9 JUDGE ORIE: The Chamber would like to have further information on
10 the issue of the outstanding offer and what additional funds -- I'm not
11 talking about the Chamber did not have at that time in mind that funding
12 was fundamentally changed, but at least it was, I think, talking about
13 some additional funds. I'm just confirming with the legal officer.
14 [Trial Chamber and legal officer confer]
15 JUDGE ORIE: The Chamber will adjourn for five minutes. Then,
16 most likely, a representative of the Registry will be available to give us
17 specific further information. That should not take that much time, if
18 there's any need to comment on it, but I take it that the Registry will
19 inform us according to the facts. And the Chamber is --
20 MR. STEWART: We're going to do that in Court, Your Honour, as I
21 understood Your Honour's remark earlier on.
22 JUDGE ORIE: Yes, yes. But we'll take a five minutes' break for
24 MR. STEWART: Yes, indeed. Yes, thank you.
25 JUDGE ORIE: Then after that, we'd conclude the oral argument on
1 this motion. The Chamber will then deal with the Davidovic issue briefly.
2 The Chamber will also deal, as promised before, with the letter sent by
3 Mr. Krajisnik, of which I do now understand that you have received a copy.
4 MR. JOSSE: No, Your Honour.
5 JUDGE ORIE: That surprises me.
6 MR. STEWART: -- looking mystified, because I personally have seen
7 such a thing, but my team is my team.
8 [Trial Chamber and legal officer confer]
9 JUDGE ORIE: There seems to be some confusion. When I'm talking
10 about the letter, I'm talking about the letter Mr. Krajisnik has sent to
11 us on the matter of that he wishes to appeal our decision on
12 representation, not the letter sent to the Appeals Chamber. As a matter
13 of fact, the letter which I was informed was sent to the Appeals Chamber,
14 this Chamber has not seen it. And there is at least some reluctance to
15 have a look at it at all.
16 MR. JOSSE: We have not seen any of the material, Your Honour.
17 JUDGE ORIE: But the first letter, that is then really a mistake.
18 The letter of -- I think it was the letter of 7th of September, which
19 should then immediately - and there seems to be a misunderstanding -
20 should be immediately given to you in translation in English.
21 MR. JOSSE: I think our position is that anything that this Trial
22 Chamber has viewed, we would like to view as well.
23 JUDGE ORIE: Yes. And that's the letter that we have viewed. So
24 it will be provided to you.
25 We'll adjourn for five minutes.
1 --- Break taken at 12.11 p.m.
2 --- On resuming at 12.26 p.m.
3 JUDGE ORIE: The Chamber has invited Mr. van de Vliet to clarify
4 the issue that was raised before the break.
5 Mr. van de Vliet, there was some discussion about whether the
6 additional funds, although limited, are available to the accused. What is
7 in my recollection is that the Registry at that time expressed willingness
8 to pay an additional $1.000 a month for the costs involved with further
9 investigations in the preparation of the case against Mr. Krajisnik. Also
10 at that time there was some talk about some overlap in the replacement of
12 Could you inform us to what extent this has resulted in any
13 financial means made available to the Defence of Mr. Krajisnik.
14 MR. VAN DE VLIET: For sure, Your Honour. Just to give you a
15 little overview of the recollection I have so available on such short
16 notice, we have had discussions with the Defence team starting around
17 March, involving the Registry and the deputy Registrar, to discuss
18 additional funding to be provided to the Defence team under certain
19 conditions. The amount that we discussed at that time was an additional
20 $10.000 a month. And the conditions were related to the composition of
21 the team and to -- involved in that discussion was also the possible
22 replacement of co-counsel.
23 The discussions were not finalised at that time. The matter of
24 replacement of co-counsel was protracted, became a longer-lasting matter.
25 And we have only concluded the discussions actually around this time, in
2 What also happened in the meantime was the matter of
3 self-representation by Mr. Krajisnik, which was delaying the finalisation
4 of these discussions.
5 JUDGE ORIE: That matter has been decided, as you know,
6 Mr. van de Vliet.
7 You are talking about an additional 10.000 a month. That's
8 different from the amount of 1.000 a month for costs related to
9 investigations and investigators?
10 MR. VAN DE VLIET: Yes. The idea of the 10.000 a month, which, by
11 the way, by now has changed into 6.000. This is our final proposal. The
12 proposal of the Registry that's on the table right now at this moment was
13 not only to allow for investigations to be extended, but also to allow for
14 three counsel to be operating in this team, which would allow for
15 Ms. Loukas at that time to continue as a co-counsel. And we all thought
16 that this would strengthen the team substantially and keep institutional
17 knowledge on board. That was one of the conditions which was discussed at
18 that time.
19 JUDGE ORIE: Yes. Could you explain to us exactly what the
20 present situation is. You said the discussions or negotiations were
21 concluded around this time. Where do we stand? And could you also inform
22 us whether, if there's any offer, whether it would have any retroactive
23 effect. For example, if we are talking about the costs of investigations,
24 whether if that offer would be accepted, that we'd start on the 1st of
25 October or whether it would have any retroactive effect.
1 MR. VAN DE VLIET: Certainly, Your Honour. The situation is as
2 follows: We will apply the new -- there has been a change in the policy
3 for payments in the trial stage. We are going to apply that amended
4 policy as of the beginning of the Defence stage, at the end of the
5 Prosecution stage. This will allow for an additional $3.000 a month.
6 That is as of the -- I think the 23rd of July.
7 JUDGE ORIE: Yes.
8 MR. VAN DE VLIET: That is in addition to what was provided
9 before. Then what we also have offered, in addition to that, is what I
10 just mentioned, an additional $6.000 a month to be spent on support staff,
11 and we've laid out a few conditions related to those additional $6.000 to
12 be spent.
13 JUDGE ORIE: Yes. Could you give us any prediction -- perhaps I
14 should ask that to Mr. Stewart, whether this last offer will be accepted.
15 And if not, what would be the reasons not to accept what seems to be at
16 least some additional funding?
17 MR. STEWART: Well, Your Honour, I decline to conduct negotiations
18 on this in open court. That simply is not the right course.
19 JUDGE ORIE: Okay. Are the Registry and the -- nevertheless,
20 Mr. Stewart, we are confronted with a situation in which you say, We don't
21 get any extra money. We now receive the information by Mr. van de Vliet,
22 who says: I made an offer, and it includes so and so and so much. And
23 for the Chamber, we are talking about time and facilities available to the
24 Defence. I'm not inviting you to enter into any further negotiations, but
25 at the same time, if - and this is just one of the possibilities - for
1 reasons which are not well understandable, an offer would be denied, then
2 of course the Chamber has to ask itself whether these funds are available
3 or not.
4 If the Registrar would add any unreasonable conditions to it, the
5 Chamber might come to the conclusion that these funds are not available.
6 If, however, the conditions put by the Registrar are reasonable, but, for
7 whatever reasons, for example, in the expectation or the hope to get more,
8 if the conditions would not be accepted, if, for any reason, these
9 available funds would not be accepted by the Defence, the Chamber might
10 come to a different conclusion and come to the conclusion that the funds
11 are available but have not been accepted. I do not invite you to enter
12 into any further negotiations. If you say, I'd rather not express myself,
13 then the Chamber will invite the Registrar to have a look at the
14 conditions. I take it that they have been put in writing.
15 MR. VAN DE VLIET: Yes.
16 MR. STEWART: Your Honour, I apologise to interject, but maybe it
17 saves time. Your Honour, I didn't say and I'm not saying that I'm
18 unwilling to enter into further negotiations.
19 JUDGE ORIE: In public, you said.
20 MR. STEWART: Yes. I said I decline to do it in open court.
21 I'd like to add this, if I may, Your Honour: It's very clear from
22 the most recent communication, as Mr. van de Vliet and Mr. Lowery will
23 know, there was an e-mail from me this morning. We had, and I do say
24 this, Mr. van de Vliet, it's usually the four of us recently,
25 Mr. van de Vliet, Mr. Lowery, Mr. Josse and I, we do have very
1 constructive, friendly discussions, and negotiations are clearly not
2 finished, but they must be conducted in private.
3 JUDGE ORIE: Yes, I do understand. But they are now conducted for
4 six months and the issue --
5 MR. STEWART: Your Honour, if we wish to analyse why it's taken
6 six months, I'm happy to enter into that.
7 JUDGE ORIE: No, no. You're not invited to do that. The only
8 thing I say --
9 MR. STEWART: Would Your Honour please disregard a point like that
10 in any judgement you reach if I'm not being invited to say anything more
11 on that.
12 JUDGE ORIE: The only thing to say is that the Chamber might not
13 be able to afford to wait another six months and just to decide matters as
14 they stand at this moment, you criticised our decision --
15 MR. STEWART: Correctly, Your Honour, because it's quite clear
16 that your decision is wrong on that point, and nothing that's been said
17 this morning alters the factual error in the Court's judgement. That is
19 JUDGE ORIE: What exactly, then, Mr. Stewart, is wrong in the
20 decision? Could you please read the lines we --
21 MR. STEWART: "Resources made available by the Registrar to the
22 Defence, as well as the composition and organisation of the Defence team,
23 have increased or improved, also in the accused's estimation, since the
24 accused raised the issue of self-representation on the 24th of May."
25 Your Honour, it is absolutely plain still from what
1 Mr. van de Vliet -- I don't -- there's more to be said, but I don't
2 disagree with what Mr. van de Vliet has said at all this morning. I
3 should make that clear. But it is simply not correct to say that
4 resources have increased or improved. They have not. Mr. van de Vliet
5 does not say they have, and he and I are in agreement on what he just said
6 as far as it goes just now.
7 JUDGE ORIE: It depends on how you interpret the word "made
9 MR. STEWART: Your Honour, "have increased or improved." Your
10 Honour, we can leave aside the interpretation of the words -- I certainly,
11 Your Honour, if necessary, would enter in submissions on the construction
12 of the words "made available," but "have increased or improved," it is
13 unambiguous, Your Honour.
14 JUDGE ORIE: What has been increased?
15 MR. STEWART: Your Honours' own judgement says: "Resources made
16 available" -- yes, I agree, "made available."
17 Your Honour, I do submit that that is reading something into that
18 paragraph which it won't reasonably bear. It's perfectly plain that what
19 the Trial Chamber was saying was that we had actually had more resources
20 available to us, and that is clearly wrong. Your Honour -- with respect,
21 Your Honour, the Trial Chamber --
22 JUDGE ORIE: Mr. Stewart --
23 MR. STEWART: -- by not acknowledging--
24 JUDGE ORIE: Mr. Stewart --
25 MR. STEWART: -- its own error.
1 JUDGE ORIE: Mr. Stewart. The only thing I said is that it may
2 depend on how you interpret. That's the only thing I said. I leave it at
3 this moment.
4 MR. STEWART: May I ask this question: Is Your Honour saying that
5 it was no part of your reasoning and no part of your decision and no part
6 of your factual supposition that there had in fact been an increase of
7 resources for the Defence team?
8 JUDGE ORIE: Mr. Stewart, the decision speaks for itself. If it's
9 not clear to you, it's not for the Chamber to give any further
10 explanations at this moment on its own decision.
11 MR. STEWART: Your Honour, with respect, it is, because if there
12 is ambiguity in a court's decision then it is the court which produced
13 that -- it is for the court which produced that decision to resolve the
14 ambiguity. There are limits to how far, as I indicated earlier this
15 morning, anybody has or to presume to read Your Honours' minds. If it is
16 not clear, it is for the court to resolve that lack of clarity.
17 JUDGE ORIE: Mr. Stewart, the Court is not going to give any
18 further explanation at this moment.
19 Is there any comment on the present situation as far as presented
20 by Mr. van de Vliet?
21 MR. STEWART: Yes, indeed, Your Honour.
22 JUDGE ORIE: Please do so.
23 MR. STEWART: I wish to say that what Mr. van de Vliet says, as I
24 emphasise, is absolutely correct as far as it goes. And he was just
25 invited, in effect, to answer specific questions.
1 Well, one small point, Your Honour. It perhaps doesn't affect the
2 price of fish very much, when Mr. van de Vliet said the discussions
3 started in March, my recollection is that they started in February. But
4 neither of us is working from notes this morning, so that's easily
6 But it is true that at that time, $10.000 was under discussion,
7 and Mr. van de Vliet says, and I fairly accept, that it was not offered at
8 that point. It was subject to all sorts of matters and conditions which
9 were under discussion. And we have discussed them. And they are --
10 there's a lot of complication in it. It's not useful to analyse this
11 morning whether it could have gone more quickly and how it should have
12 gone more quickly, because it's been very much at the heart of my
13 submissions today that the most productive thing is to look at where we
14 are actually on the 28th of September, 2005. And where we are is that, as
15 I indicated, by Mr. van de Vliet's letter to me on the 2nd of September,
16 an offer was made. And that, and I believe that is entirely agreed
17 between us, that was the first time that an offer was made, as opposed to
18 something which was still under negotiation in some form or another.
19 The $1.000 of possible costs for investigators was in fact an
20 element of the negotiations, particularly the bit of the negotiations
21 between the Registry and Mr. Krajisnik. Of course, I became involved in
22 that because they were -- in a sense they were tripartite negotiations,
23 Mr. Krajisnik, the Registry, and me, with a sort of fourth party, the
24 Trial Chamber, steering the negotiations and being informed and being
25 involved in one way or another. So it's sort of three and a half parties,
1 in a way.
2 But that element was part of that. That was not, in fact, and
3 there's no secret about that, that wasn't acceptable to Mr. Krajisnik.
4 Mr. Krajisnik and the Registry never were able to reach agreement on that.
5 And on that particular issue, I'm largely not very far away, but I'm
6 largely sitting on the sidelines on that particular issue, seeing whether
7 the Registry and Mr. Krajisnik could agree, which they couldn't. I'm not
8 far away on the sidelines. I'm pretty close to all of it.
9 So that's the position as far as that goes.
10 The six months, Your Honour, have of course gone by while we've
11 been negotiating, without any increase in funding. I'm going to leave
12 aside, Your Honour, because I don't believe that anybody is putting this
13 as a big element in the equation, that sometime before the 24th of March,
14 we were given and have been given 1.000 Euro a month, which is part of the
15 new current scheme package. We have been given that for interpretation
16 and translation costs between client and counsel. And that has been an
17 increase in resources since earlier this year, but that dates back to
18 before the 24th May. So I should just put that on the record.
19 But otherwise, Your Honour, the three-counsel position was this:
20 That actually, when we were talking about figures which involved for a
21 long time involved $10.000, without the Registry, and I do acknowledge
22 without the Registry ever having said to us, Yes, the offer is $10.000,
23 when we were talking about that and we were looking at the figures, and
24 there's been a lot of toing and froing, it seemed that there might be the
25 opportunity to enable Ms. Loukas to stay in the case as, effectively, half
1 a counsel. I don't mean she's only half a counsel. She's a complete
2 counsel, but only half her time. Because Your Honours will be aware --
3 JUDGE ORIE: Just as half a counsel as the Chamber is half a
5 MR. STEWART: Your Honour, half a counsel is better than none,
7 Your Honours know that Ms. Loukas had not wanted to be a full
8 counsel on this case for a very, very long time. It seemed that the
9 opportunity might be there to use the funding so as to provide as one
10 element of the, if you like, the new team package, two and a half counsel.
11 Your Honour, that wasn't possible in the end. It wasn't
12 effectively rejected by anybody. That's one way of looking at it,
13 perhaps. But it just wasn't possible, Your Honour, with everybody doing
14 their best in the circumstances. After all, if that half counsel had to
15 be anybody, it had to be Ms. Loukas. There's no point in having half a
16 counsel who was anybody else; it was to use her knowledge of the case.
17 But it just wasn't -- it wasn't possible in the end, Your Honour. And in
18 any case, Ms. Loukas wouldn't have been available for -- she wouldn't have
19 been available straight off from the 23rd of July for three weeks, because
20 she had made it clear for a long time that she was simply stopping and
21 going away during that period. So the period we worked on this, it
22 wouldn't have been possibly. That's water under the bridge.
23 Your Honour, we are in a position now - Mr. van de Vliet and
24 Mr. Lowery know this - one important additional element of the team which
25 we have all talked about is to have a further legal assistant who speaks
1 both English and B/C/S. We are in a position to implement that, well, we
2 hope very soon, and in fact what's happened is before court this morning,
3 among a number of other tasks, I sent an application, I sent it to
4 Mr. Lowery, which is the right channel, so far as we understand, I sent it
5 to Mr. Lowery for approval of a particular person who I mentioned to
6 Mr. Lowery and Mr. van de Vliet in discussions yesterday, and we would
7 hope that that could be implemented, well, I mean, as soon as the
8 machinery can be done.
9 But, Your Honour, what I want to stress, please, here is that it
10 has not been possible and it would not have been possible, even if I had
11 said to the Registry the second I'd received Mr. van de Vliet's letter,
12 done deal, with all the conditions. There's lots else in the letter that
13 does need to be sorted out one way or the other. But if I had said done
14 deal as of today, it still wouldn't have helped us to any significant
15 degree in relation to this immediate task.
16 JUDGE ORIE: The issue we discussed, Mr. Stewart, was whether
17 additional funds are available and whether the Chamber made any mistake in
18 the language it used in its decision that the available funds -- the
19 resources made available had been increased. That was the issue we
20 discussed. And I think that we are now going far further, and there's no
21 need, because I do understand that accepting the offer is not without
22 difficulties. Let me say it very -- the Chamber would very much like to
23 be informed about the conditions that accompanied the offer, and the
24 Chamber would like to be informed, once the offer has either, with other
25 conditions, yes or no, has been accepted or not, so whether finally the
1 new funding scheme is put into practice, yes or no.
2 MR. STEWART: Two things on that, Your Honour.
3 First of all, yes, perhaps it would help, Your Honour, if I say
4 that despite the slightly raised temperature submissions and discussion
5 we've had in relation to that passage, if I contributed unnecessarily to
6 raising of temperature, then I apologise. It is essentially water under
7 the bridge. Because I am not appealing on Mr. Krajisnik's behalf the
8 self-representation decision, whatever he at the moment is doing. So as
9 long as for the purposes of these decisions that Your Honours are faced
10 with today, as long as Your Honours are very clear that we have not
11 actually had the benefit of increase of resources up to now, then no harm
12 is done. I was simply concerned that that -- if there was a
13 misunderstanding and error in that passage, it should not persist and be
14 carried forward into these decisions. And, Your Honour, the position now
15 appears to be very clear. Your Honours, with respect, do appear very
16 clearly to understand that there hasn't in fact been an increase in
17 resources. And that's adequate for present purposes.
18 So far as the other element is concerned, Your Honour, it would
19 not be the Defence's position that the Trial Chamber shouldn't be kept
20 suitably informed of significant steps in the progress of such
21 negotiations, and certainly it would be our position that the Trial
22 Chamber should be informed of the results.
23 What is important, and it links in with what has been said in
24 other areas this morning, is that we should be informed of what the Trial
25 Chamber has been informed about and that there should be no gap or
1 uncertainty or lack of clarity as to what information the Trial Chamber
2 has on anything, in fact. It's a wider principle in relation to this
3 case. So that we know exactly what information the Trial Chamber has and
4 exactly what it is taking into consideration. Apart from anything else,
5 it gives the opportunity of correcting any misapprehensions or
7 JUDGE ORIE: Mr. Stewart, if any mistake was made in that respect
8 in the past, it has to be deplored. Everyone is invited, first of all, I
9 made it clear that we invited Mr. van de Vliet here in court so that there
10 could be no problem in that respect. If there's ever any communication to
11 be addressed to the Chamber which is of any relevance for either
12 Prosecution or Defence, the Chamber will not accept such communications.
13 And of course for practical reasons, now and then we have e-mail
14 communications with the legal officers. It will not be accepted unless a
15 copy has been sent to the interested party.
16 MR. STEWART: Your Honour, I'm very happy to hear that. I suppose
17 for these purposes the Prosecution and the Defence would probably both
18 always be interested parties in relation to anything of any significance.
19 But, Your Honour, I'm very happy to hear that. And of course it has
20 implications -- or it has application to some of the other matters we
21 discussed this morning.
22 Well, Your Honour, that is the position. Mr. van de Vliet, I also
23 completely agree with Mr. van de Vliet in relation to -- because it's
24 entirely consistent with what we discussed yesterday, that the idea is
25 that the new scheme would have retrospective operation from the 23rd of
1 July. That's been very fairly and clearly discussed between
2 Mr. van de Vliet and Mr. Lowery and us. But Your Honours will appreciate
3 that we can't -- our work can't have retrospective effect. We've only
4 been able to do what we have been able to do with the resources we have
5 actually had. We can only do from this point on what we can do with the
6 resources that we will have. We hope this new member of the team will
7 come on board very soon, but he won't realistically come on board to be
8 able to help, apart from anything else, a new member of the team is of
9 course an inevitable immediate call on management resources. You have to
10 spend some time when you have a significant new member of the team.
11 So, Your Honour, that's all I have to say.
12 Do I understand -- or perhaps the question of the invitation I put
13 to the Trial Chamber in relation to any questions --
14 JUDGE ORIE: The Chamber has considered the matter. The Chamber
15 has considered the matter and will not put any further question, which
16 does not, as may be clear to you, automatically mean that the Chamber
17 accepts everything. Because it's not for the Chamber to dive any further
18 in how to spend time, resources, what should have priority, what could be
19 done quicker, or what would even need more time than you suggested
20 yourself. The Chamber is not going to enter into that matter, and the
21 Chamber, therefore, has no further questions, which does not automatically
22 mean that the overall assessment is accepted by the Chamber.
23 MR. STEWART: It does mean this, Your Honour. It means that if
24 the Chamber in any judgement does reject any of those points without
25 having given the Defence a fair opportunity of dealing with that point,
1 well, obviously if we haven't had a fair opportunity, that will be an
2 unfair result. That's the significance of my invitation, not to have
3 matters sprung on us in a judgement when we haven't been given a fair
4 opportunity of meeting objections.
5 JUDGE ORIE: At the same time, Mr. Stewart, you will also
6 understand that the Trial Chamber does not want to take the role of an
7 auditor for the projection of the work still to be performed by the
9 MR. STEWART: Do Your Honours understand, for example, why the end
10 of stage report is of significance here and why time has to be allocated
11 to that?
12 JUDGE ORIE: Mr. Stewart, I explained to you that the Chamber will
13 put no questions in that respect. This was not an invitation to check
14 whether the Chamber understands everything correctly.
15 MR. STEWART: Your Honour, it's my function as counsel to --
16 JUDGE ORIE: You've done so.
17 MR. STEWART: -- to offer to fill in any gaps. That's part of my
19 JUDGE ORIE: Yes. The Chamber has carefully looked at your
20 submissions in this respect.
21 Is there any further question for Mr. van de Vliet? I take it
22 that the Prosecution has no specific interest to interfere in the matter.
23 MR. TIEGER: No, we have no questions, Your Honour.
24 JUDGE ORIE: Then, Mr. van de Vliet, we thank you, and we'd like
25 to see the conditions which accompany the offer as far as I understand
1 that was issued on the 2nd of September.
2 MR. VAN DE VLIET: Yes, certainly, Your Honour. We will provide
3 an overview of the past as well for your information.
4 Could I add one more thing, please, just for the sake of clarity
5 and completeness. It was our understanding yesterday when we met with
6 both counsel that our offer was not going to be accepted. I understand
7 now from the elaboration of Mr. Stewart that he would like to continue
8 negotiation. If that is so, then we would be happy to have further
9 discussions. But this was our understanding until this moment.
10 JUDGE ORIE: If this hearing has added anything to the hope of
11 reaching an agreement, we're only happy to hear that. If there is an
12 agreement or if the offer is accepted or any other arrangement has been
13 made, the Chamber would like to be informed.
14 MR. STEWART: Can I just ask Your Honour whether, if I may do it
15 through Your Honours, whether Mr. van de Vliet or Mr. Lowery have read my
16 e-mail sent to Mr. van de Vliet and copied to Mr. Lowery at 8.02 this
18 JUDGE ORIE: Mr. van de Vliet, 8.02 this morning.
19 MR. VAN DE VLIET: Yes. I haven't read it at 8.02, but I have
20 read it in the course of the morning, yes.
21 MR. STEWART: Well, in that case, I'm sure Mr. van de Vliet didn't
22 mean anything different. That does actually add something, and that does
23 actually affect the position where we were at the end of the meeting. It
25 JUDGE ORIE: As I said, if we would have additional hope or better
1 expectations to resolve the matter, it's nice to know that that's the
3 Mr. van de Vliet, I'd like to thank you very much for coming and
4 informing the Chamber.
5 MR. STEWART: I'm sorry, Your Honour. Could I raise one further
6 practical matter?
7 JUDGE ORIE: In the presence of Mr. van de Vliet?
8 MR. STEWART: Yes, Your Honour. It's a purely practical
9 suggestion, that Your Honour was saying a moment ago, I think it's just
10 scrolled off the screen, that the Court would like to receive some
11 information from the Registry in relation to conditions. It occurs to me
12 that the most helpful thing of all might be if Mr. van de Vliet and
13 Mr. Lowery and we were able to agree a factual memorandum that we were all
14 happy with to go to the Trial Chamber just summarising the position.
15 Because we're not. I mean, we may disagree about where things lead.
16 That's inherent in negotiations. But we don't disagree about facts.
17 JUDGE ORIE: Yes. If that could be provided to the Chamber still
18 this afternoon, then it could replace the copy of the offer and the
19 conditions attached to it. If not, the Chamber would like to receive the
20 offer and the conditions attached to it.
21 MR. STEWART: Is Your Honour saying that you have had the copy of
22 the offer and the conditions attached?
23 JUDGE ORIE: No. What I say is that we invited Mr. van de Vliet
24 to provide us with a copy of the offer, but if by this afternoon another
25 matter would be prepared for the Chamber, a memorandum which gives us the
1 proper information supported by all involved parties, then that could come
2 in place of -- yes.
3 MR. STEWART: Yes, Your Honour. It was probably just my
4 misunderstanding of a particular remark that Your Honour had made. It was
5 probably me, Your Honour. Thank you very much for that clarification.
6 JUDGE ORIE: Mr. van de Vliet, thank you very much.
7 I do understand that -- thank you very much, Mr. van de Vliet.
8 I do understand that the interpreters would prefer to have a break
9 now. What is still on our agenda is, first of all, an oral guidance to be
10 given to the Defence on certain matters that have been raised, which we
11 have prepared and would be approximately one and a half pages of reading.
12 There's also still a kind of a reaction or response, whatever you'd call
13 it, to the letter of Mr. Krajisnik of the 7th of September. And there is
14 the issue of Mr. Davidovic.
15 First of all, let me establish: The Chamber considers that the
16 oral argument on the motion for further extension of time is concluded.
18 Then I'd like to hear from the interpreters whether they'd prefer
19 to have a break now, which would be a break for some 20 minutes and then
20 continue for another 25 minutes, or to start with the 25 minutes and then
21 conclude for the day, hopefully in 20 minutes from now.
22 THE INTERPRETER: We'd rather continue right now, yes.
23 JUDGE ORIE: You'd rather continue. Then we have to ask whether
24 the tapes allow us to continue.
25 [Trial Chamber and registrar confer]
1 JUDGE ORIE: Yes. We would have, without any doubt, followed your
2 preference to have a break now if so expressed.
3 There is an issue that -- let me first briefly deal with the issue
4 of Davidovic.
5 Mr. Stewart, the last communication about it was that you thought
6 that some time after the 3rd of October that you would be able to give a
7 written reply from the Defence. I considered that to be linked, at least
8 the 3rd of October, to the beginning of the presentation of the Defence
9 case. That's what I had in mind when I talked about it earlier. I just
10 wanted to briefly discuss whether you actually wanted to link the
11 beginning of the Defence case. Because of course there's a fair chance
12 that the presentation of Defence case will not start on the 3rd of October
13 and whether we have to understand your message to be that shortly after or
14 sometime after the beginning of the Defence case we could receive the
15 Davidovic submission.
16 MR. STEWART: Yes, Your Honour. I don't think I wrote that -- I
17 wrote that e-mail to the Trial Chamber, copied to the Prosecution, of
18 course, I wrote that e-mail on the 14th of September. But as far as I
19 recall, it wasn't an accident that it was the 3rd of October. That was
20 indeed the date picked there because it was the beginning -- and it was
21 for the --
22 JUDGE ORIE: The Chamber understands, then, your submission to be
23 that sometime after the beginning of the presentation of the Defence case
24 we'll hear from you. We'd rather not leave it too long, but on the other
25 hand, it's a matter of principle rather than a matter of running urgently
1 for a decision at this moment.
2 MR. STEWART: Could I say, Your Honour, we don't wish to leave it
3 any longer than -- can manage.
4 JUDGE ORIE: That's understood. Then the two issues the Chamber
5 would like to raise.
6 The first is what I would like to call the guidance on the conduct
7 of the Defence case. This Chamber has been confronted on several
8 occasions with the difficulties the Defence has had in finding a fair
9 balance between the roles of Mr. Krajisnik and his counsel in conducting
10 the Defence case. This concerns Mr. Krajisnik's involvement in the
11 handling of courtroom proceedings and the choice of witnesses to be called
12 for trial.
13 It is not for the Chamber to find that balance. Nevertheless, as
14 far as procedural consequences are concerned, the Chamber may assist the
15 Defence in finding the balance. And to that end, the Chamber will provide
16 certain guidelines that Mr. Krajisnik and his counsel are expected to
17 follow in presenting the Defence case.
18 First of all, the Chamber will address Mr. Krajisnik's repeated
19 wish to put additional questions to witnesses. The Chamber exercises
20 substantial discretion in regulating the conduct of the court proceedings
21 and will allow Mr. Krajisnik a limited participation to complement
22 examination-in-chief by his counsel. The Chamber will not fundamentally
23 change the way the examination of witnesses has been conducted by the
24 Defence and will extend the experimental phase when Mr. Krajisnik was
25 allowed to participate in examining witnesses.
1 The Chamber has no reason to doubt that the Defence counsel
2 prepare the examination of witnesses, and in doing so, consult with
3 Mr. Krajisnik in the usual way.
4 After most of the time for examination has been used,
5 Mr. Krajisnik will be given an opportunity to consult with his counsel
6 regarding any remaining questions that, to Mr. Krajisnik's mind, have not
7 been put to a witness. If the Defence counsel then do not ask such
8 questions, the Chamber will positively consider whether to allow
9 Mr. Krajisnik to put some questions to the witness, granted that
10 Mr. Krajisnik demonstrates he is capable of putting his questions in a
11 procedurally proper manner.
12 The Chamber already expresses some concern on whether
13 Mr. Krajisnik will fully understand the Rules applicable in
14 examination-in-chief, whereas until now, Mr. Krajisnik has been asking
15 questions only in cross-examination, cross-examining Prosecution
17 Therefore, the Chamber may at any time intervene and cut
18 Mr. Krajisnik's examination short if the Chamber deems the examination to
19 be disruptive or in violation of the Rules of Procedure and Evidence.
20 Based on the experience the Chamber will gain in allowing this
21 experimental examination mode, the Chamber may at a later stage consider
22 whether or not to allow Mr. Krajisnik to continue to put additional
23 questions to Defence witnesses.
24 Finally, the Chamber needs to address the issue of the choice of
25 witnesses. The Chamber again wishes to emphasise the need for mutual
1 understanding and respect for the respective positions between
2 Mr. Krajisnik and his counsel. This includes the choice of witnesses to
3 be called for the Defence. Thus, the Chamber expects Mr. Krajisnik and
4 his counsel to discuss the choice of witnesses and seek to reach a
5 compromise whenever their views are not congruent.
6 In case of disagreement, the counsel are expected to reconsider
7 whether their opinion on the possibility of a witness not to further the
8 Defence case outweighs Mr. Krajisnik's wish to make choices in what he
9 considers to be the interests of his own defence. The counsel, however,
10 are expected to warn Mr. Krajisnik about the possible detrimental effects
11 of calling that witness upon their instructions.
12 The Chamber recognises that a situation might arise in which the
13 Defence counsel feel that the rules of ethics and professional conduct, by
14 which they are bound, prevent them from following Mr. Krajisnik's
15 instructions with regard to which witnesses should be called. If such a
16 case should arise, and if Mr. Krajisnik has insurmountable difficulties in
17 following his counsel's advice, the Chamber expects Mr. Krajisnik to
18 address the Chamber directly during a court session, which means not in
19 separate letters, and to indicate his wish to call a witness where his
20 counsel feel that they are unable to follow. The Chamber will then
21 consider Mr. Krajisnik's submission including the significance of the
22 evidence and the subject matter of the testimony and may choose to call a
23 witness as a Chamber witness. If this situation should ever arise,
24 further instructions and guidance on the practicalities related to the
25 examination of such witnesses will follow.
1 As with the issue of putting questions to the witnesses, the
2 experience the Chamber gains with the procedure may be of guidance
3 regarding the continuation of this procedure in the future.
4 That is the guidance the Chamber would like to give to the Defence
5 in this respect.
6 Then the last issue on the agenda --
7 MR. STEWART: Your Honour, might I just raise a purely practical
8 issue. We suggest it would be very helpful in relation to that passage,
9 and it will be clear what it is, if the Court could arrange for that to be
10 translated into B/C/S. Because that particular bit of the transcript,
11 with all that guidance, is obviously important and useful for
12 Mr. Krajisnik to have at his side.
13 JUDGE ORIE: Yes. Well, first of all, there is, although it's
14 only 99.5 per cent what I just said, we have it on paper in English
15 already, but we'll see -- I mean, it's guidance. It's not a decision. So
16 we'll see whether there's a possibility to have this translated and to be
17 given to Mr. Krajisnik.
18 MR. STEWART: Thank you, Your Honour.
19 JUDGE ORIE: Yes. Then the last issue I'd like to raise is a --
20 well, whether it's a real response is another matter, but at least a
21 reaction of the Chamber to Mr. Krajisnik's letter of the 7th of September,
23 Because, Mr. Krajisnik, the Chamber would like to make some
24 comments on the letter you have sent to us on the 7th of September, 2005.
25 In that letter, you raised three issues. First, you suggested
1 that the Chamber had agreed with your counsel to a timetable for the trial
2 and that the deadlines envisaged in that timetable were too harsh for the
4 Second, you expected confirmation that you had, and I quote your
5 letter, "a right" to pose questions to witnesses, and I quote again, "in
6 addition to the lawyers."
7 Finally, you expressed your intention to appeal the Chamber's
8 decision on self-representation of the 18th of August, 2005. I will not
9 expand at this moment on the reasons you gave for this wish to appeal the
11 The Chamber clarifies that there was no agreement between Defence
12 and Chamber on the schedule for the trial and that this issue is still
13 pending due to the latest filings by your counsel. We confirm our
14 intention to give this matter immediate and careful consideration.
15 The issue of your involvement in the Defence strategy and of your
16 limited possibility to ask questions was addressed just a few moments ago
17 through our guidelines, or guidance.
18 On the issue of your appeal, you sought information on deadlines
19 to appeal the Chamber's decision and you asked to be provided additional
20 legal assistance in this matter. Mr. Krajisnik, you have legal
21 assistance. Mr. Josse, moreover, was in Court with you on the 19th of
22 August, the day after our decision was filed. If you had consulted with
23 your legal counsel, you would have found out that there are seven days to
24 ask for certification to appeal against an interlocutory decision. You
25 would also have found out, most likely, that no additional counsel would
1 have been assigned to you on this matter. Finally, you would have been
2 reminded that any motion or application must be filed with the Registry.
3 Even if the Chamber would understand, which it does not, the
4 letter as an application for certification, it was sent too late. It must
5 have been clear to you that you were not unrepresented. However, it seems
6 as if you were under the misapprehension that the time would be running
7 only when you formally received a written translation of the decision.
8 This is not so. Moreover, I recall that the Chamber made specific
9 arrangements for you to receive a preliminary unofficial translation on
10 the 19th of August, after our hearing on that same day.
11 Your letter confirms to the Chamber your need to be represented by
12 counsel. Dispute the fact that the letter, as such, does not require any
13 decision, the Chamber has decided to respond to it in the way it does.
14 The Chamber wishes to add that an accused, represented by counsel, should
15 send a letter to the Chamber, its Judges, or its staff only in exceptional
16 circumstances. Exceptional circumstances did not exist in this case, and
17 the issue of an appeal should have been raised, in due time, through
19 Yes, Mr. Krajisnik. The Chamber has responded to your letter. It
20 does not envisage to have a debate, but we'll not deprive you from an
21 opportunity to make some, although limited, observations.
22 Please proceed.
23 THE ACCUSED: [Interpretation] Thank you, Your Honours, for having
24 responded to the letter I sent.
25 I just wanted to offer a few sentences by way of clarification,
1 trying to be as brief as possible. Your Honours, I don't want to be yet
2 another case here or to interrupt the existing proceedings. I have
3 restated on several occasions that I have great respect for this Trial
4 Chamber and for the proceedings itself.
5 One thing is clear, though: You have given us an opportunity to
6 consult with Mr. Josse concerning your decision, but we had five minutes,
7 at the most, because the guards had said that we had to leave urgently,
8 and that could be confirmed by Mr. Josse. We couldn't converse then, and
9 Mr. Josse didn't know what the deadline for the appeal was.
10 The appeal itself is not a problem. I was encouraged to hear
11 today that you have given deep thought to the essence of this issue.
12 There is only one thing that I ask, and that is a fair trial, nothing more
13 than that. I will be happy not to ask a single question. But I wanted to
14 mention something that was stated here by the OTP, and it was incorrect,
15 and concerns my participation in the trial.
16 As I said, I want to participate in the expense of my defence up
17 to the $180.000 that were mentioned, and I will prove that I had
18 participated. This was mentioned as one of the main reasons here, and it
19 was somewhat corrected by Mr. Stewart. I believe it was useful. Anything
20 that should have went the way of the investigators, all those obligations
21 were met. But the investigators put together a lot of material. They
22 took the statements. But what is of essence here, and as Mr. Stewart
23 explained, is that there was still the lack of resources for the
24 attorneys. There are submissions to be made, and this was the part that
25 Mr. Stewart discussed with the Registry.
1 Therefore, it is not that I didn't want to meet my financial
2 obligations. I do. As I said from the beginning, I do not -- agree with
3 the decision, but I accept it. It's been a year now that the
4 investigators haven't been paid. But I will come up with a way to
5 compensate for their work.
6 In addition to that, I would like to thank you for giving these
7 extensive guidelines as to my relationship with the Defence. I am
8 sufficiently intelligent to work in my own best interest and not contrary
9 to it, but the problem is the lack of resources at Mr. Stewart's disposal.
10 Another thing, if I may. On the 31st of August I received the
11 decision on the appeal. I sent three letters to the Registry prior to
12 that, asking for help, for assistance. It is true that I asked the
13 Registry not to be given assistance from my team, my Defence team, and
14 there was a certain conflict between us, since I was looking to find
15 better ways for my defence, for the conducting of my defence. I was
16 slightly worried, because I was afraid they wouldn't be able to do it in a
17 quality way, due to the lack of resources.
18 I am at the disposal to the OTP, to the Chamber, and I can
19 document each single dollar that represented my financial obligations in
20 these proceedings. I wanted to ask Mr. Stewart to say publicly whether he
21 was ever refused by the investigators anything -- whether they have given
22 all the documents when they went to Pale.
23 If I may conclude, please.
24 JUDGE ORIE: Mr. Krajisnik, this is not an issue to be raised in
25 this forum to ask public statements by counsel. If you want to address
1 the matter, please discuss it with Mr. Stewart. Please proceed, if
2 there's anything else you would like to say.
3 THE ACCUSED: [Interpretation] All right. I would like to ask you
4 the following: As for the Defence case and the evidence presented, I
5 wanted to make clear that Mr. Josse and Mr. Stewart are doing their best
6 to link all of the pieces of the puzzle. But what is important to me is
7 that we end these proceedings as soon as possible. But they cannot.
8 That's why I asked to be of help, not to be yet another attorney. Because
9 the OTP is now using it, saying he is not able to do that. Quite the
10 contrary; I just wanted to try to save time, in case we omitted something
11 of crucial importance. So I would kindly ask for your understanding. I
12 make my own notes, and I have a list of questions to be asked of all of
13 the witnesses.
14 Mr. Stewart can have his opinion on that, but I would like to ask
15 him nonetheless. It is easy for you to interrupt me to make decisions,
16 but I would kindly ask you for your understanding, for the truth's sake.
17 I would kindly like to remind the Chamber, at least the Judges
18 that were present at the time. From the beginning I would asking for one
19 thing, to be able to prove the truth. But this is now the improvisation
20 on the part of the Defence. That's why I wanted to ask for a quality
21 defence and that the people who are truly guilty be brought before the
22 Tribunal. That's why I wanted to appeal, to represent myself, to change
23 the way my defence is being conducted.
24 I still have great respect for the Chamber. Hence, I decided not
25 to appeal further. I wanted to forward a request for certification for an
1 appeal, since I am -- I have the right to represent myself. I would
2 simply ask for your understanding to see my point, to help the entire
4 As for the Registry, I sent a letter to you once negotiations were
5 completed. We dealt with the Registry concerning all of the technical
6 matters, and the remaining issue was the one that you discussed today, as
7 well as the $1.000. I agreed that the Chamber should make a decision on
8 that and that everything else has been dealt with. But they didn't put
9 basic preconditions in place for me. I have one room where I need to fit
10 all of the papers and there is no room to breathe in it.
11 Hence, I'd like to ask that the Registry meet its own obligations
12 and that you exercise some understanding for Mr. Stewart's request. We
13 may disagree on many matters, and even today there is tension between us,
14 but I believe that the only way to conduct a good, solid defence is to
15 have a good cooperation between the client and his Defence attorney.
16 I would like to thank you yet again, and I will not abuse your
17 time further.
18 JUDGE ORIE: Thank you, Mr. Krajisnik.
19 Yes, Mr. Josse.
20 MR. JOSSE: The matters that Mr. Krajisnik referred to on the
21 19th of April, I can broadly speak and confirm that he's right in both
22 regards, for what it's worth.
23 JUDGE ORIE: Yes. That doesn't change anything, apart from that
24 the matter is moot anyhow, on the basis of -- but of course I take it that
25 if Mr. Krajisnik would like to have discussed in due time and would have
1 to be informed about what the time-limits were, that there would have been
2 no difficulty, if not on the spot, then, well, within the time needed for
3 that to be informed about it.
4 MR. JOSSE: Your Honour will excuse me for not going into that. I
5 simply wanted to confirm that was true. Mr. Krajisnik invited me to in
6 the course of that submission. I felt I should. I didn't expect it to in
7 any way change the view of the Trial Chamber. It's for information.
8 JUDGE ORIE: The matter is moot anyhow, because Mr. Krajisnik
9 informs us that he does not wish to continue the -- or to appeal.
10 Mr. Krajisnik, you asked a lot of things from us. I'm going to
11 conclude at this moment.
12 THE ACCUSED: [Interpretation] Excuse me, Your Honour.
13 JUDGE ORIE: Yes.
14 THE ACCUSED: [Interpretation] I would like to contribute that the
15 proceedings continue further. That's why I gave up my right to appeal. I
16 would kindly ask for your understanding to provide assistance and to take
17 Mr. Stewart's request into consideration, to come up with the optimum
18 framework to begin with the trial in time.
19 JUDGE ORIE: Mr. Krajisnik, you've raised quite a number of
20 issues. Of course, the most important one is that you are asking for a
21 fair trial, and it's the responsibility of this Trial Chamber that you
22 will receive a fair trial. On any of the other matters, to some of them
23 we've given you already the relevant information as to how to proceed and
24 what your role, as far as the procedural consequences are, may be. If
25 there's any specific matter, for example, you ask us to decide a certain
1 matter for the Registrar, you're invited to consult with counsel to what
2 extent what you'd like the Chamber to do is within the competence of the
3 Chamber. And if it is in the competence of the Chamber, counsel will know
4 how to address the matter in such a way that the Chamber will give
5 decisions on issues raised.
6 This concludes this hearing. The Chamber will consider the motion
7 for further extension of time. We'll give a decision. And since we're
8 also aware that we should not wait too long, we'll also try to see whether
9 we can file a written decision today. I'm not giving any promises, but
10 the parties are invited to check the possible filing, because whatever the
11 Chamber may decide, it may have some time implications for both Defence
12 and/or Prosecution. And the earlier you know about that, perhaps the
13 better it is.
14 MR. STEWART: Is it possible, because I assume that such decisions
15 are done on a computer or word processor, is it possible for, once the
16 decision is failed, for it to be e-mailed?
17 JUDGE ORIE: Once the decision has been filed, I will invite the
18 legal officers to send a copy, a courtesy copy, which is not binding the
19 Chamber in whatever way. If you want to know what the decision is, you
20 should check at the Registry. But I have sufficient confidence in our
21 legal officers to assume that the same text will reach you by an e-mail as
22 it is filed at the Registry.
23 MR. STEWART: Yes. Thank you very much, Your Honour. That's very
25 JUDGE ORIE: We will adjourn, sine die.
1 --- Whereupon the hearing adjourned at 1.33 p.m.,
2 sine die