Tribunal Criminal Tribunal for the Former Yugoslavia

Page 17218

1 Thursday, 6 October 2005

2 [Defence Pre-Trial Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.37 a.m.

6 JUDGE ORIE: Good morning to everyone on this Pre-Defence

7 Conference.

8 Mr. Registrar, would you please call the case.

9 THE REGISTRAR: Good morning, Your Honours. This is case number

10 IT-00-39-T, the Prosecutor versus Momcilo Krajisnik. Thank you.

11 JUDGE ORIE: Thank you, Mr. Registrar.

12 Just for the record, although we do not do it every day,

13 Mr. Harmon and Mr. Tieger for the Prosecution, and Mr. Stewart and

14 Mr. Josse for the Defence, assisted by members of their staff.

15 An agenda has been sent to the parties, including those items

16 suggested by the parties to be included. Unless there's anything else to

17 be raised before we start with the agenda, I suggest to the parties that

18 we just follow the agenda. But I can imagine, Mr. Stewart, that one of

19 the motions you filed, which seems to be moot, that is, a motion for

20 certification for an appeal against the decision to stay, at least the

21 decision on your motion for a stay, that that might be a reason to

22 withdraw that.

23 MR. STEWART: Your Honour, yes. I had better explain as briefly

24 as I can the position there. Yesterday afternoon, we received the Appeals

25 Chamber decision dismissing our appeal against the dismissal of our 98 bis

Page 17219

1 application made in August and presented by Mr. Josse in Court, on the

2 basis that the Appeals Chamber said that we required a certificate, and

3 therefore the appeal was basically not valid on that ground. We received

4 that yesterday afternoon. Yesterday afternoon, we were, in fact, filing,

5 and did in fact file, two motions, including the one -- or application for

6 certification, including the one that Your Honour mentioned. This

7 morning, we are filing, within the next few minutes, really, as soon as

8 somebody is available in the Registry to take it, we are filing, in the

9 light of the Appeals Chamber's decision, an application for an extension

10 of time to apply for a certificate to appeal against the refusal of the 98

11 bis application and, consequential upon that, if we get that extension of

12 time, then the application for the certificate as well.

13 If our application for extension of time and the application for a

14 certificate were successful, then we would need to present our appeal;

15 it's either a new appeal or our appeal all over again against the refusal

16 of the 98 bis application. In those circumstances, Your Honour, if we did

17 wish then to raise the question of a stay pending appeal, we would have to

18 do it technically by way of a new application, a new motion, and

19 therefore, yes, the result with that two-minute summary is exactly as

20 Your Honour says, that the particular motion for a stay and the

21 application for certification, that's all gone.


23 MR. STEWART: Procedurally, that's a dead duck.

24 JUDGE ORIE: That's clear. Thank you for that.

25 Then since I did not hear any objection against following the

Page 17220

1 agenda as it has been presented, I'd like to start with the first item,

2 overview of disclosure by the Defence, Rule 65 ter (G) material. We

3 received the 65 ter (G) summaries -- yes, Mr. Krajisnik.

4 THE ACCUSED: [Interpretation] I would kindly ask the Trial Chamber

5 to allow me to address the honourable judges in the course of this

6 morning.

7 JUDGE ORIE: Yes. You'll be given an opportunity later on. Have

8 you informed counsel about what you'd like to raise, Mr. Krajisnik?

9 MR. STEWART: Your Honour, can I just say, Mr. Krajisnik hasn't

10 strictly informed me, but I've got a pretty good idea. But maybe he'll

11 add something else. Your Honour, perhaps I can simply say that.

12 Mr. Krajisnik -- I'm not preventing Mr. Krajisnik himself from answering

13 that question, Your Honour, but that's the position, from where I stand.

14 JUDGE ORIE: Mr. Krajisnik, have you informed Mr. Stewart about

15 what you'd like to raise?

16 THE ACCUSED: [Interpretation] I have nothing to add to what

17 Mr. Stewart has just said.

18 JUDGE ORIE: You are invited and instructed always to inform

19 counsel, apart from very exceptional circumstances, to inform counsel on

20 any matter you'd like to raise yourself, because counsel could -- at least

21 we cannot exclude that he could assist you in giving proper advice on the

22 matters you'd like to raise, procedural aspects of matters you would like

23 to raise. So you're invited and instructed always to at least communicate

24 with counsel the matters you would like to raise, again, as I said, apart

25 from very, very exceptional circumstances. The Chamber will always

Page 17221

1 consider whether such exceptional circumstances are there upon the

2 indication on your side what the subject of your submission would be. But

3 we'll give you an opportunity later today.

4 Then we return to the item 1 on the agenda, which is overview of

5 disclosure by the Defence. We've received the 65 ter summaries, the list

6 of witnesses. There's still a lot of work to be done, from what I

7 understand. We also received the number of hours involved, which do not

8 exactly fit into what the Trial Chamber has indicated before as the time

9 available to the Defence. But the Chamber also understands that further

10 selections are needed to come to the final list, and of course the Chamber

11 is aware that by allowing the Defence to file a list which is to some

12 extent a provisional list rather than the final list, that we, of course,

13 would not blame the Defence for this moment on giving a couple of hours

14 more than the Chamber indicated that were available. Nevertheless, the

15 total number of hours is of great concern to the Chamber. But we'll leave

16 that to a later stage.

17 Mr. Harmon, the Prosecution has asked to make some submissions on

18 the quality of the Defence 65 ter summaries.

19 MR. HARMON: Yes. Thank you very much, Mr. President. Good

20 morning, Your Honours; good morning, counsel.

21 I start, Your Honour, with the text of the Rule, Rule 65 ter

22 (G)(1)(b), which requires that the Defence file, and I quote: "A summary

23 of the facts on which each witness will testify." And I underscore the

24 word "facts."

25 Now, this Rule covers two interests. It covers the interest of

Page 17222

1 the Court to be properly informed of what evidence may be presented to it

2 so it can properly manage the case, and it protects the interest of the

3 Prosecution so the Prosecution can be adequately informed of the facts

4 about which each witness will testify so that the Prosecution can prepare

5 adequately for cross-examination. It is our submission, after a very

6 careful review of the extensive filing made by the Defence, that the

7 Defence submissions fall short -- in terms of being factual submissions,

8 they fall short by virtually every standard.

9 I would like to read two such submissions into the record as

10 exemplars. I would not reveal the names of the witnesses, because I don't

11 know to what extent they will be protected witness. I can in private

12 session, if the Court is interested, identify which witness I'm referring

13 to. Let me read from two --

14 MR. STEWART: Would it be a simple, practical thing if somebody

15 were to jot on a piece of paper which witnesses Mr. Harmon is referring

16 to? I don't mind crossing the court to receive that piece of paper, and

17 Your Honours as well, and then we'll just be able to look, if Mr. Harmon

18 has got two or three in mind. It seems a practical suggestion rather than

19 going in and out of private session.

20 JUDGE ORIE: I see Mr. Harmon already writing, so he followed your

21 suggestion, I take it.

22 MR. STEWART: Thank you, Your Honour.

23 MR. HARMON: Does the Court wish to see the names as well,

24 Your Honour?

25 JUDGE ORIE: Well, if you --

Page 17223

1 MR. STEWART: I'm so sorry.

2 JUDGE ORIE: Please proceed, Mr. Harmon.

3 MR. HARMON: Reading from the first name that appears on that

4 list, the summary that we were provided reads as follows: "This witness

5 was BiH and RS assembly deputy from," and it identifies the location. "He

6 was a local authorised commissioner of the RS government. He will give

7 evidence on the following topics: Population and prisoner exchange in

8 relation to Bijeljina, analysis of the causes and motivation for departure

9 of Serbs from Tuzla and Muslims from Bijeljina, general conditions in

10 Tuzla --"

11 MR. STEWART: I'm sorry, Your Honours. Maybe I just too hurriedly

12 wrote it down. This one doesn't seem to be either of the names that was

13 on that piece of paper. Maybe in my hurry to pass on the piece of paper

14 to the Trial Chamber I got it wrong somehow.

15 MR. HARMON: Mr. Stewart, it's on Registry page, filing 12540.

16 MR. STEWART: I don't have that pagination, same old story. Is

17 there a page number from the batch of stuff that ... All right.

18 Your Honour, there were two people with the same surname and I took a

19 chance on that. That's what happened.

20 Thank you, Mr. Harmon.

21 MR. HARMON: I'll continue reading, if the Court pleases.


23 MR. HARMON: Let me start again at the relevant passage: "He will

24 give evidence on the following topics: Population and prisoner exchange

25 in relation to Bijeljina; analysis of the causes and motivation for

Page 17224

1 departure of Serbs from Tuzla and Muslims from Bijeljina; general

2 conditions in Tuzla on the eve of the conflict; activities of the Special

3 Panther Unit in; knowledge of the A and B variants; the six strategic

4 goals and the authority of Mr. Krajisnik."

5 Now, that, in our submission, Mr. President and Your Honours, is a

6 topical summary, not a factual summary.

7 The second summary I will read -- Mr. Stewart, I don't know if you

8 have the page numbers, but it is in the 12563 of the filing of the

9 Registrar.

10 MR. STEWART: I just said I didn't, so I'm afraid I haven't

11 acquired them in the last minute or two minutes.

12 MR. HARMON: In any event, let me read the summary, if the Court

13 has before it the summary. A summary that we were provided for this

14 witness is: "The witness went with Luka Bogdanovic to see if they could

15 talk with someone from the top in Pale. He wanted to talk to Karadzic,

16 but since he was not there, Mr. Krajisnik was the only one available, who

17 greeted them without actually knowing why they came to see him. They soon

18 realised that Mr. Krajisnik knew nothing of the group, and in order to

19 prove it to them, Mr. Krajisnik made a telephone call."

20 That's the end of the summary. In our submission, this is

21 virtually incomprehensible and does not assist us in any way in

22 determining what this witness's evidence is going to be.

23 Now, Your Honour, if I could, I recall that the submission that

24 the Prosecution made pursuant to its 65 ter summaries was filed on the 2nd

25 of May, 2002, and so the summaries that were available to the Defence were

Page 17225

1 in many cases available years before the witness actually took the stand

2 to testify. As witnesses came to testify before this Tribunal, additional

3 factual summaries were provided to the parties. And I would like to pass

4 out one example of a factual summary that we provided to the Court and to

5 counsel. It is the factual summary that relates to Witness Miroslav

6 Deronjic. And if I could pass that out. And if we could compare the

7 factual summary of Deronjic with the factual summaries that I have read

8 from the Defence submissions, it will be evident there's a stark contrast.

9 Now, for your information, Your Honour, this summary was filed

10 with the Court and provided to the Defence on the 14th of January, 2004,

11 and Mr. Deronjic testified on -- about a month later, the 12th to the 19th

12 of February, 2004.

13 So I'll give Your Honours a moment to cast your eye on the factual

14 summary that was provided in the case of this particular witness.

15 JUDGE ORIE: Even without rereading it as a whole, the Chamber has

16 a sufficient impression and sufficient recollection on the type of summary

17 you provided at that time. Please proceed, Mr. Harmon.

18 MR. HARMON: Your Honours, to the extent that any of the

19 Prosecution summaries and the 65 ter submissions that we made to the Court

20 fell short of the mark, it must be remembered that the Defence had

21 available to it copies of witness statements taken by the OTP, copies --

22 in some cases copies of statements of the same witness taken by the

23 Bosnian authorities, in some cases they had previous testimonies of the

24 witness. In the case that we're confronted with today, with these

25 submissions that have been made by the Defence, we have no statements of

Page 17226

1 these witnesses. We can't fall back on trying to fill gaps in these

2 summaries that have been provided to us through looking at witness

3 statements or previous testimonies or the like. So that's a significant

4 difference as well.

5 I would also submit to Your Honours that as was our practice when

6 witnesses who had been identified by us and whose summaries and statements

7 the Defence had would come to us and see us before they testified, if

8 there were additional facts that were exposed in the course of the

9 conversation we had with the witnesses, we filed written summaries of

10 those facts as soon as was possible. So if you compare what is available

11 to the Prosecution through the 65 ter summaries that the Defence have

12 filed, which are not factual, they are virtually, in large measure,

13 fact-free. And what the Defence had to its advantage, you will see

14 there's a huge disparity between what has been available and what is

15 available to the parties. And in fact, the bottom line is the Defence

16 knew the facts about which each witness would testify.

17 Now, there's jurisprudence in this institution that relates

18 specifically to this subject. I, Your Honour, have been involved in

19 previous litigation in the Krstic case. For example, I was confronted

20 with the same issue, and I raised the same objection. And in that Krstic

21 case, Your Honour, the Court agreed with the objections that I had made

22 and required the Defence to re-file 65 ter summaries. And in fact, they

23 re-filed them on two occasions, because after they re-filed them on the

24 first occasion, there were still deficiencies and the Court required, and

25 the Defence did in fact file, a second filing. I can give Your Honours

Page 17227

1 the dates of those filings and I can give Your Honours the dates of the

2 transcript from the Court discussion, if you wish.

3 Secondly, there is a written decision - let me pass it out,

4 Your Honour - in the Kupreskic case that deals precisely with the issue

5 that we're confronted with today. It's a short decision, Your Honour, and

6 I'll let Your Honours cast your eye on it, and counsel as well.


8 MR. HARMON: Your Honours, this is a decision that squarely is on

9 point with the issue that we're confronting today. In the Kupreskic case,

10 the Prosecution complained about the summaries that had been submitted by

11 the Defence. And the Court found that the summaries were insufficient

12 factually. They ordered the Defence to provide summaries to the Office of

13 the Prosecutor within two weeks and ordered that if there was a failure to

14 do so, the Prosecution would have the opportunity and be permitted to

15 interview the witnesses whose summaries were deficient.

16 The Court concluded that the failure to provide sufficient

17 summaries impinged on the principle of equality of arms. We believe,

18 Your Honour, and we assert vigorously, that we're entitled to factual

19 summaries, and we insist that they be provided to us. We don't believe

20 it's proper that Mr. Krajisnik should benefit from a wilful non-compliance

21 with the obligations that are imposed upon him by the Rules. And

22 therefore, Your Honour, we would make the following submissions to the

23 Court:

24 One, that the submissions that had been made pursuant to Rule 65

25 ter (G) by the Defence are not in compliance with the Rule.

Page 17228

1 We would request that the Defence be ordered to resubmit factual

2 summaries to the Prosecution two weeks in advance of the testimony of each

3 witness before he takes the stand to testify;

4 And three, we would request that in the absence of a proper

5 factual summary being provided to the Prosecution about the substance of

6 the witness's evidence, that the Prosecutor be permitted to interview the

7 witness, as was the case in the Kupreskic decision.

8 Those are our submissions, Your Honour, on the factual

9 submissions -- on the submissions under Rule 65 ter. I have other

10 submissions, but I'll defer those, because they relate to exhibits have

11 not yet been submitted as well. Thank you.

12 JUDGE ORIE: Yes. If I understood you well, you take a different

13 course from the course that was taken in the Kupreskic case. Whereas in

14 that case, the Court ordered submission of new summaries two weeks after

15 the list had been provided and what you're actually asking now is that you

16 at least be provided with an adequate summary two weeks before the

17 testimony of the witness.

18 MR. HARMON: Your Honour, I'm asking -- what I'm asking is --

19 THE INTERPRETER: Microphone, please.

20 JUDGE ORIE: Microphone, please.

21 MR. HARMON: What I would prefer is to have the summaries of

22 all -- factual summaries of all --

23 JUDGE ORIE: Yes, preferably yesterday and not today. Yes.

24 MR. HARMON: And I would prefer to have them as soon as possible,

25 but at a minimum, two weeks before each witness.

Page 17229

1 JUDGE ORIE: I think I've fully understood you. Perhaps the best

2 way of proceeding is that I give an opportunity now, not to go through the

3 whole of the agenda, and give an opportunity to the Defence, unless the

4 Defence would prefer to take a bit more time to reflect on how to respond

5 to the observations made. But if you'd like to respond now, we could hear

6 your response.

7 MR. STEWART: Well, Your Honour, yes. Because I respond now, I

8 don't wish it to be thought that the Defence doesn't reflect on things. We

9 do. We just sometimes try and reflect quickly. It does seem more

10 efficient to deal with the matter item by item and give an immediate

11 response.

12 Your Honour, when we saw quality of Defence 65 ter summaries had

13 been placed on the agenda by the Prosecutor, we thought, how sweet.

14 Somebody has finally recognised the effort and all the work done by the

15 Defence. But this is pointedly not so.

16 JUDGE ORIE: That's the problem with summaries. If you say the

17 quality, you never know it will be praising the quality or saying

18 something negative about the quality. I think that's more or less what

19 also is the subject matter that, if you say the witness will testify about

20 the events, then you've got no idea how the witness perceives those

21 events.

22 MR. STEWART: Absolutely, Your Honour. Recovering from my

23 disappointment, Your Honour, that that wasn't the purpose of that item on

24 the agenda and dealing with the substance, I am in fact going to register

25 a mildish, by my standards, mildish protest that it would have been

Page 17230

1 helpful if a simple list of the items that the Prosecution were intending

2 to refer to under this agenda had been communicated. Even if had been

3 communicated to me at the crack of dawn this morning, we could have

4 handled it more satisfactorily and the decision as well that's been

5 referred to. But it doesn't matter. We're used to coping with things at

6 very short notice.

7 The selection of Deronjic as a summary is frankly ludicrous.

8 Everybody knows the position of Deronjic. And the Prosecution's summaries

9 contain some excellent summaries among the hundreds they produced, and

10 dare I even suggest that somewhere among the summaries we've produced

11 under enormous pressure there are some of more than adequate standard even

12 by the -- what the Prosecution require.

13 Your Honour, I'm not going to pretend and submit that the batch of

14 summaries produced by the Defence in these circumstances is up to the

15 standard that the Defence would have wished to produce overall in

16 compliance with the Rules, because they're not, and we made it 100 per

17 cent clear that that would not and could not happen, and it hasn't

18 happened.

19 However, at the risk of just pots calling kettles black and

20 entering into a sort of playground squabble, we would like to just observe

21 that, for example, and this is Witness L, Brcko, on page 3, and my

22 apologies for not notifying in advance, but I didn't know what was

23 happening this morning on this item. We get: "The witness was

24 transferred to Luka and can comment on certain events there. Specifically,

25 the witness will corroborate the testimony of other witnesses in relation

Page 17231

1 to the detention of women at Luka. The witness will also provide

2 testimony about Batkovic camp and the conditions therein."

3 Well, thank you very much. And then another one, not quite sure

4 who this is. He will also testify about --

5 JUDGE ORIE: Mr. Stewart, Mr. Stewart, the Chamber is fully aware

6 that Mr. Harmon has sought -- well, let's say what he considered to be the

7 worst examples on your -- in your summaries and certainly has not chosen

8 to present one of his weaker summaries to the Chamber for a comparison.

9 Therefore, the Chamber is certainly aware that there are stronger and that

10 there are weaker summaries and that going through them, that we would find

11 that, if not it all, some portions of Prosecution summaries would not, as

12 you demonstrated already now, would not meet the requirements of the Rule

13 either. I'm more interested in, and the Chamber is more interested, in

14 the suggestion made by Mr. Harmon. Let's not forget the Kupreskic case,

15 the Prosecution was invited to tell exactly where the major shortcomings

16 were and the Chamber is very much interested to know that whether the

17 matter could be resolved in one way or the other.

18 I noticed already that Mr. Harmon has not, like was done in the

19 Kupreskic case, has not asked for a full new filing within two weeks from

20 now, but takes the course that at least two weeks prior to the testimony

21 of the witness, that these summaries are presented in such a way that the

22 Prosecution is better able to prepare for the cross-examination.

23 The Chamber is mainly interested not in how the parties experience

24 the problems, but rather in how they think they could contribute to

25 resolving them. So I therefore would like to invite you to mainly respond

Page 17232

1 to that. And I would say it goes without saying that your position, as

2 far as the time you had available for preparing them, whether you are

3 satisfied with -- that's all sufficiently clear at this moment. We

4 also -- the examples given by Mr. Harmon, of course, are also considered

5 by the Chamber, and these were certainly not examples that would tend to

6 diminish the problem, but it's more like a - how do you call it? - a

7 reading glass or it's enlarged in the presentation. The Chamber is fully

8 aware of that.

9 Could you please then proceed.

10 MR. STEWART: I will do that, Your Honour. Just 20 seconds to say

11 I didn't suggest Mr. Harmon had picked out the worst examples. I don't

12 know how he made his selection. I'm sure we have even worse in our batch.

13 I wouldn't wish to rise to that challenge. May I say the examples I just

14 gave were picked up by me at random over the last ten minutes from

15 hundreds of pages. So the two passages I read, those are really pretty

16 much at random. I picked a couple of pages and I just looked for

17 paragraphs on those pages. That's what I did. So but moving on from

18 that, Your Honour, we know what the purpose of these 65 ter summaries is,

19 and we'd also say in relation to their decision in Kupreskic, it doesn't

20 tell us anything unless we looked at the 65 ter summaries. It's almost a

21 meaningless decision for these purposes unless we see what the Court is

22 talking about. We know the principles.

23 Your Honour, the Defence would positively wish, provided that

24 there are enough hours in a day and hours in the week and hours in

25 people's lives to do it, we would positively wish to improve the 65 ter

Page 17233

1 summaries. It doesn't do us any good to withhold anything. It doesn't

2 help us for them to be inadequate. It's just a question of timing.

3 We would like to do that as soon as possible, but we've got to fit

4 it in with everything else.

5 But, Your Honour, in principle, the suggestion that two weeks

6 before, we should provide an improved 65 ter summary where necessary is

7 acceptable to the Defence. We will -- well, there's always slippage

8 somewhere, and the Prosecution know that, we know that with some of the

9 Prosecution's stuff. The parties haven't been unreasonable to each other

10 on the occasional slippage. But in principle we accept that.

11 We'd also comment that the opportunity for the Prosecution to

12 interview witnesses, it strikes us as a bit strange perhaps because that

13 opportunity is there anyway. They're entitled to interview anyone they

14 want to will speak to them.

15 JUDGE ORIE: Whether there's any property in a witness seems not

16 to be considered in a similar in the different common law traditions.

17 MR. STEWART: Your Honour, we don't suggest that they're not free

18 to do that anyway. It's just that there are again issues of time for all

19 concerned. If we want to -- if the Prosecution, you know, want to go off

20 in a bus --

21 JUDGE ORIE: So no objection in that respect either.

22 MR. STEWART: That's all. So, Your Honour --

23 JUDGE ORIE: Both the two weeks and the other matter of

24 interviewing witnesses is now on the record. The position is clear,

25 Mr. Harmon, I take it, that the Chamber will consider the matter.

Page 17234

1 MR. STEWART: And we understand, Your Honour, that the essential

2 purpose -- of course, the essential purpose is fairly to enable the other

3 party to prepare for cross-examination. So if on occasions, and

4 Your Honour and the Prosecution I hope will understand, on occasions when

5 there are real problems about communicating sufficiently thoroughly with a

6 witness before he or she actually comes to The Hague, then it may be that

7 on occasions, the 65 ter summary, even the new improved version two weeks

8 ahead, might not be adequate, but we understand that then the earlier we

9 give the Prosecution as much fair information as we can to enable them to

10 prepare for cross-examination, the better, and we accept that obligation.

11 JUDGE ORIE: Yes. Just to make one observation on the matter of

12 the presentations. Even without talking to a witness, if in a summary

13 someone writes down that Mr. Krajisnik knew nothing of the group, you

14 can't make such a summary unless you have a certain group in mind. I

15 mean, the group, if you do not know what the group is, it makes no sense

16 at all. So therefore, I don't know who drafted this summary, but at least

17 being a bit more explicit by identifying the group, Mr. Krajisnik didn't

18 know anything about, or a group perhaps the witness belonged to or the one

19 who accompanied him when they sought to see someone from the top. I

20 think -- at least, I have difficulties in understanding that that group

21 was not known to the one --

22 MR. STEWART: Your Honour, I say straight away, we accept that

23 observation unreservedly, and --

24 JUDGE ORIE: It would not have taken one minute more to replace

25 the group by group so-and-so.

Page 17235

1 MR. STEWART: No, Your Honour, that's what it wouldn't have taken.

2 That's the point. It doesn't take one minute more. It's actually, given

3 the process by which this is done, which I needn't describe, it can

4 sometimes take considerably more than one minute. But -- so that's why it

5 wasn't done at this stage, Your Honour. But apart from the two-week

6 matter we've just discussed, in very broad terms, the Defence accepts the

7 obligation to improve and have a run-through, which is in everyone's

8 interest, and that sort of matter, Your Honour, I would have loved to have

9 those types of matters tidied up and sorted out themselves. But I assure

10 Your Honour the process of tidying up all those points throughout the

11 numerous summaries was one we just did not have time to do. It required a

12 chain of communication and so on. Sometimes an apparently easy point like

13 that is not so easy if the person preparing the summary or preparing this

14 information at the very first stage didn't appreciate the importance of

15 identifying that item, to track back then was very time-consuming. Your

16 Honour, in the Defence's submission here it seems that we don't really

17 have any significant gap between what the Trial Chamber and the

18 Prosecution would wish and what the Defence understand as the fair

19 response.

20 JUDGE ORIE: Thank you for your observations.

21 Mr. Harmon, is there anything more to be said about this subject?

22 MR. HARMON: Only one brief mention, and that is that we have a

23 witness who has been identified, who will be testifying next week.


25 MR. HARMON: And his summary appears for Your Honour's benefit on

Page 17236

1 page 12530. It suffers from the same deficiencies and we would request

2 the Defence immediately pay attention to a proper summary for this witness

3 so we can begin our work.

4 MR. STEWART: Your Honour, we are doing and will do in relation to

5 that witness whatever we can to get as much information as we can and to

6 pass on to the Prosecution, as soon as we can, fairly, as much information

7 as they're reasonably entitled to in order to prepare for the witness. We

8 undertake to do our best.

9 JUDGE ORIE: We all understand that we are at a start now, and

10 even if things are less than perfect, Mr. Harmon, I do understand that the

11 Defence is doing its utmost best to provide the information as soon as

12 possible.

13 Next item, 1(b), 92 bis material.

14 Mr. Stewart, we've seen that on the list there appear a number of

15 92 bis witnesses. I think there were some 23 or something like that. We

16 have not seen yet any decision by the Registrar to appoint a Presiding

17 Officer to meet formalities under Rule 92 bis. That's one issue, a very

18 technical issue. Of course, the Chamber is concerned that the 92 bis

19 statements would not be available in the form needed.

20 MR. STEWART: Sorry. Your Honour wishes me to respond to that?


22 MR. STEWART: Well, Your Honour, can I just say that's noted.

23 We're aware of the need to go through the necessary technicalities and

24 formalities and again, we will do our utmost to comply with those. We

25 will also, of course, we'll be keeping our list under review to confirm

Page 17237

1 which of the witnesses we do propose to approach under 92 bis, and of

2 course, in some cases, if, on further consideration, we take the view that

3 they're not necessary at all, then those witnesses will drop out. But,

4 Your Honour, yes, may I just that the point is noted.

5 JUDGE ORIE: Yes. I just noticed that of course some formalities

6 which need the involvement of the Registry in 92 bis cases, well, might

7 take some time. I don't know where these witnesses are all located. So

8 there might be some -- if you start early with asking for the appointment

9 of presiding officers, then the chance that you finally will have the

10 statements in time here, that the Prosecution is in a position to express

11 itself on whether it would like to call the witnesses for

12 cross-examination, could be speeded up.

13 MR. STEWART: Your Honour, indeed. We need to find either a

14 person authorised or a Presiding Officer appointed by the Registrar in

15 accordance with the Rules and so on. Your Honour, it's priorities,

16 priorities, priorities. For example, this week, we have given priority to

17 making sure, as sure as we can, that this witness arrives next week, et

18 cetera, et cetera, that we're in contact with the Victims and Witnesses

19 Unit. There's only so much that our case manager can do. There's only so

20 much we can do. We believe we are choosing the right priorities at the

21 moment.

22 JUDGE ORIE: Just so your attention was drawn to it. The Chamber

23 also noticed, and perhaps I should invite Mr. Harmon to comment on that,

24 that the line between acts and conduct of the accused under 92 bis might

25 be a bit problematic. For example, if a witness would say, "I never met

Page 17238

1 Mr. Krajisnik," is that --

2 MR. STEWART: Your Honour, may I short-circuit this. We recognise

3 that line. We note the comment. We will consider it. We are aware of

4 the principle. Again, that's something that we will review.

5 JUDGE ORIE: And even I can imagine that the parties will exchange

6 their views on that. Because I can imagine that if someone says I never

7 met Mr. Krajisnik, of course that's acts and conduct of Mr. Krajisnik

8 never coming to that witness or the witness never coming to him. At the

9 same time, it might not be something that should be excluded under 92 bis.

10 MR. STEWART: We might have an outbreak of common sense,

11 Your Honour. You never know.

12 JUDGE ORIE: Yes. So if there's any development in that respect,

13 the Chamber would like to hear from the parties.

14 Expert witnesses. Mr. Stewart is the next on the list. I don't

15 have to tell you the procedure under Rule 92 bis, that is, presentation of

16 the report, opportunity for the other party to --

17 MR. STEWART: You don't, Your Honour. We read the Rule. We're

18 well aware of it. Thank you very much.

19 JUDGE ORIE: And that would also imply that an appointment on

20 experts -- and again I'm not going into your prior to list, but certainly

21 should not be at the bottom of that list.

22 Mr. Harmon.

23 MR. HARMON: Your Honour, I do have one question, and that is:

24 Under Rule 94 bis, there is a time-limit, and there's sub-part A, where

25 the party has to disclose within the time-limit prescribed by the Trial

Page 17239

1 Chamber, the Pre-Trial Judge. I'm not aware of any time-limit being set,

2 but for our purposes, we would request that such a time-limit be set.

3 JUDGE ORIE: Yes. In order to give any time-limit for disclosure,

4 of course, the Chamber would not do that blindly. That means that it

5 would invite the Defence to indicate when it expects to receive these

6 reports so that they can be disclosed. One of the advantages of experts

7 that they do a lot of work on their own.

8 Mr. Stewart, could you now or in the near future give us any

9 indication when you expect to receive expert reports you would like to

10 present?

11 MR. STEWART: First find your expert is one of our priorities.

12 Your Honour, in the near future, as near as we can, but it will be

13 completely unrealistic for me to offer anything even remotely claiming to

14 be concrete today. But so I may say, Your Honour, as part of 94, we do

15 note it. We do recognise that all concerned need a fair opportunity to

16 prepare.

17 JUDGE ORIE: There comes a time, Mr. Stewart, that you've found

18 your experts and that you have requested him to present an expert report,

19 and usually you also discuss with this expert when it will be presented.

20 As soon as the Defence knows from any of the experts they found when they

21 expect to receive the reports, the Chamber would like to be informed so

22 that the time can be set.

23 MR. STEWART: Your Honour will be informed, certainly, and exactly

24 as you have just requested.


Page 17240

1 [Trial Chamber confers]

2 JUDGE ORIE: Mr. Stewart, the Chamber would very much like to

3 receive information on when you expect to receive your expert reports

4 within four weeks from now. So that's not to have the expert reports

5 ready, but -- so we expect you to have made arrangements with experts you

6 selected within four weeks from now.

7 MR. STEWART: Well, the first bit, we very much like to receive

8 information on -- we will give the Trial Chamber, of course, that

9 information. And the expectation is noted, and we will again do our very

10 best to meet that expectation.

11 JUDGE ORIE: Yes. I do understand. This is not an order. I

12 mean, we are dealing perhaps with several experts. But the Chamber also

13 wants to prevent that it gets the information on the 20th of February that

14 you expect to receive the report on the 2nd of May next year. That's the

15 kind of things we'd like to avoid.

16 MR. STEWART: Understood, Your Honour, completely.

17 JUDGE ORIE: Perhaps the best thing, then, would be to -- if you

18 would not be in a position to do that within four weeks, that you report

19 after these four weeks what kept you off from giving this information.

20 MR. STEWART: Your Honour, we will certainly give the information,

21 very much like to receive information on when we expect to receive our

22 expert reports. We will certainly give Your Honours that information

23 within four weeks as you request and then we will do our best to meet the

24 expectation in the second limb of what Your Honour said at lines 22 to 25.

25 JUDGE ORIE: Fine. Then I think we dealt with item 1 on the

Page 17241

1 agenda. Anything else on this item?

2 Item 2. In item 2, under A, it is stated -- well, the Rule is

3 reflected, which says that: "The Trial Chamber shall set the number of

4 witnesses the Defence may call."

5 Under B, that: "The Trial Chamber may call upon the Defence to

6 shorten the estimated length of the examination-in-chief."

7 And then third item, that: "The Chamber shall determine the time

8 available to the Defence for presenting evidence."

9 They're all related. This Chamber is not very much inclined to

10 limit on numbers of witnesses and is more inclined to leave it to the

11 Defence to present the number of witnesses they would like to present in

12 the time allotted for the presentation of the Defence case. That is one.

13 Secondly, until now, nothing has changed in the previous orders by

14 this Chamber, scheduling orders. Nothing has changed up until now on what

15 has been said during the 65 ter meeting on the time available for the

16 presentation of the Defence case, and nothing has changed yet in the more

17 recent scheduling orders which say that the time-limit is as was set

18 before.

19 At the same time, the Chamber is confronted now, if I do

20 understand -- if my recollection is right, with case presentation, in

21 chief only, of 1.007 hours, I think the last was. It doesn't need a lot

22 of words to tell the parties that that is not coming close to anything

23 acceptable.

24 On the other hand, it perhaps doesn't make that much sense to

25 start a large debate on that list, where we all know that it's still a

Page 17242

1 provisional list. The Chamber, therefore, is inclined at this moment to

2 follow its previous scheduling orders. At the same time, the Chamber is

3 aware that when the Defence case is presented and when there has been a

4 revised list of witnesses, perhaps including different numbers of hours

5 needed for examination-in-chief, that the proof of the pudding is in the

6 eating.

7 Finally, what the Chamber wants, the Chamber wants to give the

8 Defence a fair opportunity to present its case. That is most important.

9 That is what makes a trial fair. At the same time, the Chamber wants to

10 avoid that by an inefficient use of Court time, more time is taken than is

11 necessary.

12 Therefore, even if the Chamber would at this moment restrict

13 itself to the previous orders given, scheduling orders, that does not mean

14 that if a witness for this reason has been, let's say, reduced from four

15 hours to two hours, and if during these two hours, relevant matters are

16 presented in an efficient way, and if there would be one relevant matter

17 not being dealt with, that the Chamber would not allow another 20 minutes

18 or half an hour to complete such an efficient examination of a witness.

19 That's the general approach of the Chamber. But before giving any

20 final decisions, to the extent possible at all at this moment, given the

21 provisional character of the witness list and given the uncertainties in

22 respect of certain witnesses - not all of them may be found that easily -

23 the Chamber would like to hear any further submissions, but then not, in

24 view of the 1.000 hours presented for examination-in-chief, but on a

25 realistic basis, from the parties.

Page 17243

1 Perhaps Mr. Stewart, you're the first one to take the floor and

2 add whatever you'd like to, or to submit whatever you'd like to submit in

3 this respect.

4 MR. STEWART: Yes. Well, in the first place, Your Honour, I'd

5 just like to offer an important clarification. The 1.000 hours, 999

6 hours, it doesn't make any difference. The 1.000 hours is not - and we

7 had hoped to make that clear - is not what the Defence are submitting are

8 suggesting is necessary for the presentation of the Defence case. That

9 1.000 hours is simply the arithmetical aggregate of the estimates in the

10 list of witnesses as it stands.

11 The other figure given at the end of our list, which is the more

12 important figure, is 800 hours, and that 800 hours is not like with like,

13 because that 800 hours is the gross figure, including, in line with the

14 guidelines that were imposed during the Prosecution case on Defence

15 cross-examination, including a 60 per cent allowance, based on those

16 estimates for individual -- well, no, in fact not based on those

17 individual estimates. 60 per cent allowance for cross-examination and

18 then an allowance based on past experience for Bench questions,

19 re-examination, and so on.

20 So, Your Honour, the figure, depending on what one means in the

21 end by the time available for the Defence for presenting evidence, talking

22 about the in chief evidence in the first place, it follows that the figure

23 put forward by the Defence at the moment is far, far lower than the 1.000

24 hours. And Your Honour, that figure is, in broad terms -- one could do

25 the detailed arithmetic, but in broad terms, it is asking for the same

Page 17244

1 time as the Prosecution for presentation of evidence in chief, but with

2 the important consideration that more is added on to reflect the fact that

3 Mr. Krajisnik himself, not uniquely, but certainly not a standard practice

4 in this Tribunal, Mr. Krajisnik himself will be giving evidence.

5 So, Your Honour, that's a mission that can be developed. But what

6 I do suggest, Your Honour, is that with a certain amount of -- with that

7 clarification from the Defence, and with this observation, Your Honour,

8 that of course Rule 73 ter does make it clear, and we rather understand

9 that as being implicit in what Your Honour has just said, it does make it

10 clear that whatever provisional decisions have been made in the past, the

11 question of time for presentation of the Defence case can and must only be

12 in the end worked out, considered, and ordered by the Trial Chamber in the

13 light of full consideration of the material which has been filed under 65

14 ter, in accordance with the provisions of 73 ter.

15 So that's where we are. But, Your Honour, it may be -- the

16 Defence suggests that with those preliminary observations and that

17 clarification of the Defence position, it might in fact be helpful then

18 briefly to know what the Prosecution position is in relation to what I've

19 just said, supplementing what Your Honours and the Prosecution already

20 have on paper.

21 JUDGE ORIE: Mr. Harmon.

22 MR. HARMON: Your Honour, it's unclear to me exactly how many

23 hours the Defence estimates in its case. I calculated that it would take

24 46 and a half weeks, five-day trial sessions, if we followed the number of

25 hours that were indicated in the Defence submission. I know that's

Page 17245

1 clearly not going to be the case. But ultimately, Your Honours restricted

2 the amount of hours the Prosecution could present its case in chief. It

3 was 450 hours. I referred to the draft procedural guidelines that were

4 issued by this Trial Chamber. And we came in -- I don't have the figures

5 at my fingertips, but at around 275 or 285 hours.

6 JUDGE ORIE: If you would add the examination-in-chief and

7 re-examination, you would come to approximately 290 hours, yes.

8 MR. HARMON: So the proposition that we saw when we received the

9 submissions by the Defence of approximately 1.000 hours seemed to us to be

10 unrealistic. I am quite confident the Defence intends to continue to work

11 on that estimate, and at this point I think that it is something that

12 bears no additional comments until we see a more realistic estimate of

13 time by the Defence.

14 MR. STEWART: Your Honour, I wonder sometimes if anybody listens

15 when I speak. I've had that experience in my personal life.

16 JUDGE ORIE: You made clear that the thousand hours were not

17 your -- perhaps --

18 MR. STEWART: It's just not helpful if the Prosecution just ignore

19 what I've just said and treat it as if it's what I've just expressly

20 stated it isn't.

21 JUDGE ORIE: But wouldn't be it a good idea that you then try, in

22 two minutes, what exactly you had in mind.

23 MR. STEWART: Again, Your Honour, all over again, Your Honour,

24 what I just explained?

25 JUDGE ORIE: You came to the 800 hours and, in relation to the

Page 17246

1 time given to the Prosecution --

2 MR. STEWART: I see the point, Your Honour. Yes, it was 280

3 hours. We have the actual figures off the Court's computer. The

4 Prosecution took 280 hours for examination-in-chief and 9.7 hours for

5 re-examination.

6 JUDGE ORIE: That's the 290 hours --

7 MR. STEWART: That's exactly where Your Honours -- for

8 Mr. Harmon's information, that's where Your Honour's figure of 290 hours

9 comes from.

10 Your Honour, the one should, and this requires careful

11 consideration and review as well, one should bear in mind that a

12 significant number of witnesses - I think it's in the 90s - but a

13 significant number of witnesses gave evidence under 92 bis, and not only

14 that, but a significant number of witnesses, not in that sort of range of

15 90s, but important witnesses as well, particularly in the last two or

16 three months of the Prosecution case, were dealt with by robust

17 application of the 89(F) procedure. So that the time taken, as shown on

18 the face of the computer printouts of 280 hours for examination-in-chief,

19 in fact hides the bare figures, hide really in substance a considerable

20 addition in the real presentation of the Prosecution case. So that if

21 one -- and that's not an easy, off-the-cuff calculation to do, and in the

22 end it's not a calculation. There has to be judgement and assessment

23 there. But it's pretty significant. And Your Honours will have a good

24 idea of how much is involved there. We could probably -- again, this

25 requires time. Certainly not something to which we could possibly have

Page 17247

1 given the time over the last week. But one could sit down for a few hours

2 and one could go through the list of 92 -- maybe that's a good idea,

3 Your Honour, to go through the list of 92 bis witnesses and have a look at

4 how 89(F) was used, and come to what in substance would be a real figure

5 for the Prosecution presentation of evidence in chief.

6 But just off the cuff, and the 73 ter orders, we submit, ought not

7 to be done off the cuff, actually, that this does require, all concerned,

8 to give more consideration to it, which will fit in with the fact that

9 there will be some changes in the witness list and so on. But just off

10 the cuff, it's likely that in substance, if we're comparing like with

11 like, or attempting to do that, the Prosecution evidence in chief runs out

12 at something like 350 hours, that 70 hours have got sort of saved by the

13 very widespread use of 92 bis and the robust use of 89(F) at the end. We

14 submit that it's something of that order.

15 Now, of course, as we proceed with the Defence case, it may be

16 that corresponding savings can be made. But, Your Honour, the Defence,

17 and Mr. Krajisnik, must at least, and are entitled to reserve the prima

18 facie position that it may be very important for Your Honours to hear the

19 witnesses. And it was to some extent, although there was, realistically,

20 fairly heavy pressure brought on timing by the Trial Chamber, but in many

21 instances, the Prosecution voluntarily and very cooperatively adopted and

22 endorsed the 89(F) procedure. We're not going to be on the Defence side

23 and we hope we never are unnecessarily obstructed. We reserve the right

24 to be necessarily obstructed, Your Honour, doing our job properly for

25 Mr. Krajisnik.

Page 17248

1 But, Your Honour, the Prosecution case, where we're starting from

2 here is that if the Prosecution case was in substance 350 hours in chief,

3 we can perhaps treat re-examination as, if you like, de minimis or it can

4 come in somewhere else in the equation here. What we do is we take 350,

5 we add on 60 per cent of 350, which I think is 210. That gives 560. We

6 perhaps then do add on some few hours for re-examination, perhaps add

7 on -- let's just add on ten, then. You get 570. So we get to 570

8 straight off on that calculation. And that's not at all unrealistic. And

9 then we add, for serious consideration, the fact that Mr. Krajisnik is

10 entitled to present witnesses that are not him speaking in his own

11 defence, but other people giving evidence that we call on his behalf. But

12 he himself then gives very substantial -- it's obviously got to be very

13 substantial evidence in his defence and is then cross-examined. And one

14 aspect that will obviously not have escaped Your Honour's notice is that

15 the estimate, and as Your Honour's comments just now recognised, an

16 estimate is not a maximum. It is an estimate. So it may have to be gone

17 over with certain witnesses. It may be that we will get in well under the

18 estimate with some witnesses. But the estimate for Mr. Krajisnik is

19 obviously not an easy estimate to make at this stage. But Your Honours

20 can see from the 65 ter summary, which was not selected for criticism by

21 the Prosecution this morning, 65 ter summary in relation to Mr. Krajisnik,

22 that it's a very large number of topics and looking at any one of those

23 topics, almost any one of those topics, that topic on its own is going to

24 take a considerable time to deal with properly.

25 So that the estimate of evidence for Mr. Krajisnik is rightly very

Page 17249

1 substantial. We do expect, but it's up to them in the end, we do expect

2 that the Prosecution would be likely to want their 60 per cent -- or to

3 use the 60 per cent guideline allocation in relation to Mr. Krajisnik, but

4 that's up to them, of course, when the time comes. But on that footing,

5 and on the basis of that arithmetic, that's how we get to -- not the

6 thousand. The thousand is just arithmetic. It's nothing to do with

7 accepting obviously the -- there's a link between the witnesses and that

8 figure ultimately. But it's not the thousand hours. That 800 hours,

9 which is a gross figure, is the figure one should work from. And it is on

10 this basis that so far, and we face this head on, this Trial Chamber has,

11 well, say talked, but given clear indications for a very long time that it

12 contemplates that the Defence should be allowed, I think it's 60 per cent

13 or perhaps it's -- perhaps it was 66. I think it's been 60 per cent of

14 the Prosecution time for presentation of its case for presentation of the

15 Defence case.

16 Your Honour, that is something which the Defence does not, with

17 respect, endorse. In the Milosevic case and in the Oric case, equality of

18 arms was regarded by the Trial Chamber as entitling the Defence to have

19 the same time as the Prosecution. And Your Honour, the simple

20 yardstick -- comments have been made, but there's been no all-round

21 consideration of it. There have been no submissions on it. There's been

22 no hearing dealing with that particular issue. This is the time to do it.

23 All these matters, in principle, had to await this stage of the

24 proceedings, had to await the 73 ter application with the material which

25 the Court is directed to consider for the purposes of decisions under 73

Page 17250

1 ter. This is where we're at, to consider now what is the correct

2 allocation. Of course, 73 ter does contemplate there are to be some

3 directions by the Court that set limits. That's obvious. We don't

4 suggest that. They're all subject, of course, to judicial consideration

5 in the circumstances in future as to whether any changes or adjustments

6 are justified.

7 But, Your Honour, that's the explanation, and we hope that that's

8 helpful not just to Your Honours but also to the Prosecution, in

9 understanding what it is then that we are saying. So perhaps,

10 Your Honour, with that clarification, perhaps the Prosecution would like

11 to reconsider observations in relation to this aspect of the case.

12 JUDGE ORIE: Mr. Harmon.

13 MR. HARMON: Your Honour, in trying to come to a calculation of

14 what the Defence will take is obviously quite difficult for the

15 Prosecution to enter into that debate. Ultimately, the Court has to make

16 a decision on what it deems to be a reasonable balance between a fair

17 trial and the proper and efficient running of this case. I note, for

18 example, when I went through the 65 ter summaries, that the Defence

19 intended to elicit evidence about 17 municipalities that aren't even in

20 the indictment. And there are multiple witnesses for municipalities that

21 are not listed in the indictment. It seems to me that that's a proper

22 area that the Trial Chamber can consider when it assesses the information

23 that's before it and the amount of hours that are suggested will be

24 required. Because it seems to me, in looking at these summaries, that

25 evidence on those municipalities will rarely be relevant to what has been

Page 17251

1 presented in respect of the Prosecution's case and the indictment. Thank

2 you.

3 JUDGE ORIE: Mr. Stewart, the observation just made by Mr. Harmon

4 remain not unnoticed, the fact that quite a number of witnesses are on

5 your list which would give testimony on municipalities that are not part

6 of the indictment. I'm not saying that for that reason it could not be

7 relevant, but it certainly raises the question of relevance.

8 MR. STEWART: Your Honour, it raises head on this observation

9 straight away, which is that Mr. Harmon's observation and the implications

10 of Mr. Harmon's observation are fundamentally flawed. The Prosecution

11 allege a former Yugoslavia-wide, and then at the very least, in relation

12 to this defendant, a Bosnia and Herzegovina-wide joint criminal

13 enterprise. Their case rests on coordinated activities. That's the way

14 they present it, the actions of the JNA, the actions of the VRS, and so

15 on. The Prosecution selects the municipalities on which they wish to

16 concentrate, sometimes for the purpose of what are called other aspects.

17 It's all the case against Mr. Krajisnik. Some municipalities chosen

18 primarily for detention camps, some municipalities chosen primarily for

19 destruction of cultural heritage, some municipalities chosen specifically

20 for population movement, some municipalities chosen for killings.

21 Your Honour, the absolute, essential thrust of the case against

22 Mr. Krajisnik is the joint criminal enterprise, and everything else

23 spreads out from that. That selection, if it turns out to be selectivity,

24 actually demands that the Defence consider whether evidence from other

25 municipalities casts light on that. So, Your Honour, it's not only that

Page 17252

1 such evidence may be relevant, but it is that the whole point in relation

2 to this matter on the Prosecution side is absolutely, fundamentally

3 flawed.

4 JUDGE ORIE: It is quite clear that a lot of steps still have to

5 be taken until we come to a final determination. And as I said before,

6 although the Chamber is usually firm in not deviating too easily from its

7 earlier decisions, it's not only a matter, as you've emphasised,

8 Mr. Stewart, to review the present situation in light of the submissions

9 made at this moment, but there's also a continuous monitoring of how the

10 presentation of a case develops.

11 Therefore, if a certain number of hours would be set, and if it

12 turns out that this number of hours could be met easily by the Defence,

13 and at the same time, the Defence would not use its time efficiently, that

14 might even cause a reduction of time.

15 The Chamber has interfered in the presentation of the

16 Prosecution's case as well, as far as numbers of witnesses and numbers of

17 92 bis witnesses are concerned. Similarly, if it turns out that on the

18 basis of the determination of the time allotted to the presentation of the

19 Defence case, that in the most -- even if done in the most efficient way,

20 substantial portions of information would not reach the Chamber. Due to

21 this limitation in time, the Chamber should then change the numbers of

22 hours allotted in order to receive that information.

23 The issue has been raised before. To what extent the 10th of

24 March would be a kind of a final -- it's what the Chamber has decided

25 until now, but the Chamber -- we have thoroughly considered the matter.

Page 17253

1 We'll constantly monitor how the Defence case is presented, relevance,

2 efficiency, et cetera.

3 If there's anything else the parties would like to bring to our

4 attention at this moment, we'd like to hear it. If not, we'll move to the

5 next item on the agenda.

6 MR. STEWART: Your Honour, may I say, we understand from the

7 observations Your Honour has just made that the matter then -- well,

8 before final decisions are made on these important limits and times and

9 numbers under 73 ter, that there is going to be further consideration.

10 The reason I say that, Your Honour, is that the Defence -- certainly quite

11 a lot of ground has been covered and a lot of valuable observations have

12 been made by Your Honour this morning, an opportunity for the Defence,

13 when we get the chance to take it, to consider even just what's been said

14 this morning would really be useful.

15 JUDGE ORIE: I'll just see whether I've fully understood you.

16 MR. STEWART: Time to think about it, Your Honour, in about six

17 words, is what I'm asking. That summarises what I've just said in the

18 last dozen lines.

19 JUDGE ORIE: Yes. And if you say "time to think about it," you're

20 asking -- in order to make further submissions.

21 MR. STEWART: Yes, Your Honour.

22 JUDGE ORIE: And when? Do you have --

23 MR. STEWART: Later today is what we had in mind, Your Honour,

24 yes. We try to think quickly, Your Honour. We're not talking about days

25 or anything like that, but later today.

Page 17254

1 JUDGE ORIE: At the same time, I don't want to be misunderstood.

2 I'm not saying determinations could not be made, but I'm not saying that

3 this Chamber takes a flexible approach. Even it might raise some strong

4 comments. At the same time, the Chamber doesn't want to be rigid once a

5 determination has been made, and when it turns out that it's wrong what we

6 did, we'll change it, in whatever direction.

7 Then we move to the next agenda item. We could not finish it

8 before the next break. But perhaps we could start with the first one,

9 other issues.

10 Mr. Stewart, you introduced the matter, scheduling of

11 Mr. Krajisnik's own personal evidence. I think you referred to that

12 already before. I'll try to find it again. Because I do understand that

13 you had not in mind the testimony to be given by Mr. Krajisnik but the

14 testimony to be heard on the basis of his wishes for witnesses. Is that

15 correct or is it a wrong understanding? Perhaps you'll explain 3(a)(1).

16 MR. STEWART: Sorry, Your Honour. I did mean the evidence to be

17 given by Mr. Krajisnik himself in the witness-box. That is what I meant,

18 yes.


20 MR. STEWART: I'm not encouraging the other category of evidence

21 as a matter of fact.

22 JUDGE ORIE: No. I just wanted to avoid that there was any

23 misunderstanding.

24 MR. STEWART: Indeed, Your Honour.

25 JUDGE ORIE: Please introduce the matter you'd like to raise.

Page 17255

1 MR. STEWART: Yes, Your Honour. It was really just that: That the

2 Defence would have preferred, and I think I made this clear at the 65 ter

3 Conference in August, the Defence would always have preferred Mr.

4 Krajisnik to be the first witness in the conventional manner, and the

5 conventional manner has underneath it all sorts of real, practical

6 purposes. It's both from the point of view of the Trial Chamber and the

7 point of view of the Defence, the interests generally coincide that one

8 should, if at all possible, put the defendant up as the first witness, and

9 that would be our preferred course. However, Your Honour, it is simply

10 not, and that's what we indicated at the 65 ter Conference, it is simply

11 not practically possible. And I just really wanted to put on record that

12 that remains the position. And also, that, although again we're talking

13 about a piece of string which is long, but we don't know how long, that

14 being in that position and preparing for that evidence -- and if I say

15 preparing Mr. Krajisnik, Your Honour won't misunderstand us to be

16 suggesting anything improper there. In the broadest sense, preparation of

17 Mr. Krajisnik and preparation of Mr. Krajisnik's evidence is going to take

18 a long time and we are going to have to do it alongside everything else

19 we're going to have to do.

20 Your Honour, may I presume to just move up item 3(a)(b)? Would

21 Your Honour allow me to move 3(a)(b) up the agenda at this point and make

22 a comment on that.

23 JUDGE ORIE: 3(a) ...

24 MR. STEWART: B. Sorry, 3(a)(4). 3(a)(4).

25 JUDGE ORIE: Yes. That seems a very practical matter.

Page 17256

1 MR. STEWART: Yes, Your Honour, it is a practical matter. It is

2 an important practical matter. When we sit in the mornings - we have on

3 occasion made this request before - when we sit in the mornings, we are in

4 practice unable --

5 JUDGE ORIE: It's a matter of visiting Mr. Krajisnik. We know the

6 problem.

7 MR. STEWART: Everybody's tired. We don't get time. Your Honour,

8 it really is essential that we regularly are able to have access to

9 Mr. Krajisnik and he to us, in the mornings. So that the request --

10 Your Honours have a preference for mornings. As a matter of fact, I

11 personally have a preference for the mornings. It's not always shared by

12 all my Defence team every day, but it's not a democracy, the Defence team,

13 Your Honour. But what we do request as a compromise is: Would

14 Your Honours consider alternating morning and afternoon weeks? That ought

15 not to be too unpleasant or disruptive for anybody, and it would go a very

16 long way to helping deal with this problem.

17 JUDGE ORIE: It is mainly a matter of agreeing with the Trial

18 Chamber that uses the same courtroom. Usually it's no major problem to

19 claim afternoon sessions. It's rather the other way around, if you want

20 more morning sessions, you might have a problem. And, of course, for

21 Fridays, it's even very much welcomed if you take the afternoon session.

22 I'll discuss the matter with my colleagues, and what I can tell

23 you is that in the previous case over which I presided I was fully able to

24 reach an agreement with the other Trial Chamber to alternate morning and

25 afternoon sessions week by week. So I'm quite confident. I do understand

Page 17257

1 that you considered this already a bit to be a compromise. You might even

2 prefer to always sit in the afternoons, which would grant you more time in

3 the morning, and I fully understand what the advantages are, although your

4 personal preference, of course, would be morning sessions.

5 MR. STEWART: My absolute personal preference. That's purely

6 personal, is to get up in the morning and get on with it, Your Honour.

7 But that's not really -- that's not the issue. It's -- yes, we are very

8 grateful for that, Your Honour, and we welcome cooperation on that.

9 JUDGE ORIE: I think we should not focus primarily on our personal

10 preferences, but rather focus on the opportunity for the Defence to, as

11 efficiently as possible, prepare the presentation of its case.

12 MR. STEWART: Yes. Thank you, Your Honour.

13 Your Honour, are we at the point of a break now?

14 JUDGE ORIE: Approximately, yes, because we started at 9.37, and

15 so we spent now one and a half hours. If there's anything brief to be

16 discussed at this moment, we could do it, but no more than five to ten

17 minutes.

18 MR. STEWART: It's just that I have no more to say on those two

19 items that we put together, 3(a)(1) and 3(a)(4). I'm sorry, there is the

20 Prosecution, of course. I beg your pardon.

21 JUDGE ORIE: Of course. I'll give an opportunity to the

22 Prosecution. But first a question. You say scheduling of Mr. Krajisnik's

23 own personal evidence and then you tell us that very much in the -- I

24 would say in the English tradition, very much at this moment a bit against

25 the American case-law, from what I understand, that you'd prefer to have

Page 17258

1 the testimony of Mr. Krajisnik first, that you're still aiming at -- do

2 you have any idea at this moment? I mean, I take it that you're

3 scheduling your own activities as well -- whether we could expect the

4 evidence of Mr. Krajisnik at the middle of the case, just before the

5 middle of the case, at second half of the case, but then perhaps

6 preferably before expert testimony? Could you give us any indication?

7 MR. STEWART: Yes. I beg Your Honour's pardon. I should have

8 added something which I certainly -- in my mind, I should have added

9 something. Your Honour, our present intention would be to make

10 Mr. Krajisnik the first witness on the first day that the Court sits after

11 the Christmas/New Year break. That has, of course, the very important

12 implication that we then do not run the risk of Mr. Krajisnik being, as it

13 were, stranded in the witness-box over that recess, with all the problems

14 about communication. So that would be our present intention, that we

15 suggest, Your Honour, that in the circumstances, if we can't put him up

16 straight away, that that's the sensible approach.

17 JUDGE ORIE: It would mean that if you would stick to your 175

18 hours -- yes, it was 175 hours, where we usually have 20 effective hours a

19 week in Court, that would mean that that would take approximately nine

20 weeks on from early January, which would bring us somewhere at the end of

21 March or mid-March.

22 MR. STEWART: Well, Your Honour, we are well aware that that is

23 the, if you like, the arithmetical and chronological consequence,

24 Your Honour, which -- of course, it ties in not with the Trial Chamber's

25 hopes and expectations and indications in the past; is does tie in with

Page 17259

1 what we're submitting. But, Your Honour, I'm not at this stage -- I hope

2 Your Honours wouldn't expect me to -- I'm not in any way resiling from the

3 175-hour estimate, though I do undertake to give it detailed, careful

4 consideration item by item and overall as a matter of reasonable priority.

5 It's a difficult one, that, Your Honour, and of course I will do that.

6 And I don't want Mr. Krajisnik to have to be in that box for weeks and

7 weeks longer than he absolutely needs to be, Your Honour. And it may very

8 well be, and in principle it should be, that if we take that time, if

9 proper time is available to us to prepare Mr. Krajisnik to give evidence,

10 according to what I've indicated, well, at least that's going to be more

11 efficient than putting him up sooner when we haven't had a chance to do

12 the job at all thoroughly. What that means in terms of the estimate, I

13 don't know. But Your Honour is, well, is absolutely right. We face that.

14 That is the arithmetical and chronological consequence, yes.

15 JUDGE ORIE: Even without knowing when you would intend to call

16 Mr. Krajisnik as a witness, of course the Chamber has already considered

17 the number of 175 hours. And it might not surprise you that considering

18 this estimate, the Chamber became again aware of the importance of

19 monitoring on how the presentation of evidence develops. Especially if

20 we're talking about nine weeks, then the Chamber would certainly keep a

21 close eye on efficiency, relevance, et cetera.

22 MR. STEWART: That's entirely proper, Your Honour. We could not

23 possibly suggest anything different. And that would be the normal

24 obligation of the Trial Chamber. We would entirely accept that. We have

25 absolutely no wish to be inefficient with the result that Mr. Krajisnik

Page 17260

1 has to spend endless unnecessary days in the witness-box. That's -- we

2 all have the same object there, Your Honour. But there is some link, but

3 perhaps, Your Honour, I won't go into it now, with Your Honour's

4 permission. There is, of course, some link between these issues

5 and 3(a)(8)


7 MR. STEWART: But, Your Honour, perhaps I might leave that for the

8 moment for its proper place in the agenda.

9 JUDGE ORIE: Yes. We'll have a break now. After the break we'll

10 first resume with agenda item 3(a)(2) and (3) and then continue with 5 and

11 following. We adjourn until 20 minutes to 12.00.

12 --- Recess taken at 11.09 a.m.

13 --- On resuming at 11.48 a.m.

14 JUDGE ORIE: We resume the pre-Defence conference: We were at

15 agenda items 3(a)(2), efficient use of electronic files. Mr. Stewart.

16 MR. STEWART: Thank you, Your Honour. Yes. We put this on the

17 agenda, first of all, we try to do this, but it was also this,

18 Your Honour: Of course, particularly when the parties are preparing their

19 cases, naturally, they have all sorts of material which they legitimately

20 wish to keep to themselves in the course of preparation. However, there

21 is in this case an enormous amount of material, and is electronic

22 material, which is public, and certainly public on two levels, some of it,

23 in a sense, entirely public, because the hard-copy equivalent is already

24 well in the public domain. And there's in a sense a more limited form of

25 public which is it's certainly available to everybody concerned with this

Page 17261

1 case, Trial Chamber, Prosecution, Registry, so far as they're interested,

2 et cetera, et cetera. And of course it passes through their hands, often.

3 So what we -- as well as a simple efficiency, if you like, on the

4 day-to-day, week-to-week level, which I'll come to in a moment. We have

5 been concerned on the Defence side to make sure that, as far as possible,

6 there isn't duplication of evidence and duplication of work here, so that,

7 for instance, if either the Trial Chamber or the Prosecution, or I've got

8 to say this would be a rather rare case, if the Defence has material

9 collated, of that public nature, in either category, collated in some very

10 convenient, usable form, then in the interests of just generally getting

11 on with this case, that there isn't in principle any reason why that

12 shouldn't be shared if it's not too fantastically inconvenient.

13 We have one current example. I don't know whether Ms. Pitcher,

14 Ms. Kelly Pitcher, who is in Court this morning, has actually sent that --

15 oh, she hasn't sent the communication yet. I know that because she and I

16 have to discuss it a little bit more. But I will illustrate by reference

17 to this example. Mr. Treanor's evidence, vast quantities of material, we

18 are not struggling, exactly, but we can see that it is a very

19 time-consuming exercise for us to track down all the stuff that

20 Mr. Treanor referred to and considered in a convenient, electronic form,

21 and identify it and make sure it's in the right folders and make sure we

22 can find it easily. It occurs to us. We don't know. We're going to ask

23 the question. But it has occurred to us that either possibly any of the

24 Office of the Prosecutor or the Trial Chamber or Mr. Treanor himself, who

25 can -- and his team, who can then pass it through, may have that material

Page 17262

1 in a readily manageable, structured form, that in principle, there can't

2 be any objection in handing it over to us. That's one illustration,

3 Your Honour, and we raise it because we know that sometimes when we ask

4 the Prosecution to do something, they understandably sometimes say, well,

5 we've got a lot of things to do, we've got shortage of time, we've got

6 shortage of hours, we've got an awful lot of work to do. And then we

7 sometimes get into a sort of discussion, well, is ten hours or is five

8 hours of Prosecution team time a fair trade-off to save the Defence 30

9 hours of work? We'd suggest it is. But the trouble is, of course, it's a

10 call on the Prosecution's time.

11 So we raise that, Your Honour, but in principle, we're really just

12 asking, if you like, for the Trial Chamber's endorsement for the notion

13 that these requests, well, can and should be made in the interests of

14 saving everybody's work and time and avoiding duplication, and as far as

15 possible, and we realise it's a bit one-sided because we're not able to

16 offer on the Defence side, frankly, any great trade-off of assistance in

17 this area to either the Trial Chamber or the Prosecution. We realise it's

18 a one-sided matter. But we're asking really for endorsement that in

19 principle such requests can and should be made and that they will be as

20 favourably considered as can reasonably be managed.

21 That's number one.

22 Secondly, on the question of just day-to-day management, I'll just

23 say this: It is the Defence's intention to try to use electronic material

24 as much as possible. We will try to produce, when we -- and it may be a

25 little while before we can get such a system up and running. We will try

Page 17263

1 to produce material as much as possible in usable, when we come to

2 exhibits, usable electronic form. We will try to produce, in the way that

3 the Prosecution, with some rather more formal technological resources, try

4 to produce hyperlinks and so on. We will try to do that. Many members of

5 the Defence team at least have the ability, they certainly have that, and

6 in some cases, the technical knowledge, but we'll try to increase the

7 technical knowledge to match the ability. That's that item. That's what

8 it was about, Your Honour.

9 JUDGE ORIE: Yes. So it's an announcement which is of course much

10 applauded by the Chamber that you'll try to make optimal use of electronic

11 techniques in order to assist everyone. The other issue is a question of

12 which I'm afraid that the Chamber might not be of much avail to you,

13 Mr. Stewart, because we usually do not reformat the material we receive.

14 So the accessibility for the Chamber, I take it, is exactly the same as it

15 is now for the Defence.

16 Mr. Harmon, the request is there that if there would be material

17 available in such a format or context, that it would assist the Defence to

18 more easily access that material.

19 MR. HARMON: In principle, Your Honour, we, the Defence and the

20 Prosecution have had a cooperative relationship on that. Where there is a

21 resistance point by the Prosecutor's office, because of limited staff and

22 resources, is to request repeatedly the same materials that have been

23 provided earlier. So, for example, on the Treanor materials, I am

24 informed by Ms. Javier that we provided all of the Treanor materials on a

25 DVD to the Defence. And I don't know, since I haven't heard the exact

Page 17264

1 nature of the request, what it is, but if it is to resubmit the same

2 materials on a DVD, then that's unnecessary. We normally try to direct

3 the Defence to the date and time when we submitted that to them and refer

4 them to that, and that seems to us to be the efficient way to approach the

5 problem.

6 JUDGE ORIE: Yes. Is there any issue of disclosure to the former

7 Defence and the present Defence team or is that not an issue in this

8 example which plays any role?

9 MR. HARMON: Usually we find a solution, Your Honour. There are

10 examples of times when the matters have been disclosed to the former

11 Defence team, re-disclosed to the present Defence team, re-requested

12 again, you know, and that's where we have the resistance point. But by

13 and large, there is a cooperative relationship and we will accept the

14 requests. We'll consider every request. However, our first reaction will

15 be, if it has been provided earlier in an electronic format, to indicate

16 that's the case and tell them when they got it.

17 MR. STEWART: Your Honour, well, that's helpful, and I don't mean

18 to be grudging if I say it's helpful as far as it goes. We -- my Defence

19 team know that my standing instruction to them, and it's often

20 specifically repeated, my standing instruction to them is that they must

21 always look for something first before asking the Prosecution. And that

22 is, they know that. Sometimes they don't like it. But it is a repeated

23 instruction, and they understand that. And of course, there's a judgement

24 about what's a reasonable search, but that's my instruction to them.

25 We obviously, Your Honour, we try to avoid simply asking for

Page 17265

1 exactly what we've had before. It's -- there's no value in having an

2 elaborate debate on this before we have considered in detail, for example,

3 in relation to Mr. Treanor submitted the precise request. But, Your

4 Honour, what I don't expect we will do at all is simply ask for the same

5 stuff that was given to us on a DVD. I don't say it never happens, but

6 we're not in the habit of losing DVDs. What would be the purpose of such

7 a request would be, if that material had been supplied to us in a form

8 that was nevertheless very difficult and time-consuming to manage when

9 there is the possibility that the Prosecution have the same material, but

10 ordered in a different way, that it wouldn't be too demanding for us to

11 give to us. That's as much as I can probably usefully say this morning,

12 because otherwise we get into a bit of the abstract of something that is

13 awaiting an imminent request by us.

14 JUDGE ORIE: The Chamber notes the overall cooperative approach by

15 both parties in this respect.

16 Mr. Stewart, next issue raised, 3(a)(3), final briefs, preparation

17 and timing.

18 MR. STEWART: Yes, Your Honour. It's just to again, it's to --

19 well, it's put in the sense that -- a little bit more of a marker in

20 relation to this. Among all the other tasks recently, of course, in

21 relation to scheduling, I have had to give some serious thought to the

22 continuing groundwork and preparation of a final brief, because it clearly

23 couldn't and shouldn't in principle be left until the last minute,

24 although at the very end, all the evidence right up to the end has got to

25 be considered and absorbed. So it's -- there's plenty of work. After

Page 17266

1 all, we've got an awful lot of evidence still to come.

2 And, Your Honour, also among the practical tasks I've had to do is

3 the question of recruitment of team members to assist with this, as well,

4 of course, with other matters. It's quite time-consuming. But

5 specifically in relation to the preparation of final briefs, I have

6 recruited and engaged a part-time, but substantial part-time person very

7 recently and she is now on the team. She has experience -- she's not in

8 Court today, but she has experience of working recently on another case

9 before this Tribunal, where her task was specifically work, preparation,

10 and drafting of the final brief, subject, of course, to supervision and

11 review and so on by counsel. But her input as a legal assistant, not a

12 qualified lawyer, but certainly plenty of legal education and training.

13 Oh, perhaps she is a qualified lawyer. I beg your pardon, she is a

14 qualified lawyer. She just hasn't actually practiced as a lawyer.

15 The -- I've had a preliminary and very helpful preliminary report

16 from this new member of the team, and, Your Honour, it does indicate that

17 the deficit of ours that we have available to us, certainly from existing

18 members of the team in relation to what could reasonably be required for

19 preparation of the final briefs, is simply enormous, and I just have to

20 say it's enormous, Your Honour. I haven't had time to review it in

21 detail. And, Your Honour, I expect, without the disrespect to that new

22 member of the team, I expect that as a fairly experienced counsel, I

23 expect that I will end up taking a slightly more robust approach. I

24 expect -- I generally expect to reduce such figures as they're fed in to

25 me by support members of the team. That's the normal result. But even if

Page 17267

1 I do, and that's with no disparagement at all of the input, the -- but if

2 I were to reduce the figures proposed and the warnings given by half, it

3 would still leave a massive deficit. And I'm talking about four figures.

4 I'm talking about thousands of hours in the input. Based on real, direct,

5 recent experience of a team of which this lady was a participant working

6 on a final brief which has been filed within the last few months, and I

7 think very few months, in a less, if I dare say, with no disrespect to my

8 colleagues, a less demanding case overall than this one, although all

9 cases have their own special demands. No more demanding is perhaps a fair

10 way of putting it.

11 Your Honour, of course this does uncomfortably tie in with the

12 whole questions of these continuing - and they are continuing; they can't

13 continue every day, because we have other demands - but continuing

14 discussions with the Registry in relation to resources, finances, and so

15 on. But as things stand at the moment, and that remains the position,

16 Your Honour, within the confines of any additional resources which have

17 been mentioned or are contemplated or have ever been under discussion in

18 relation to this matter. It is -- I just do not see, Your Honour, I have

19 to say, I do not see how the final brief can be prepared in any serious

20 way within anything like the time-scale which has been indicated. And I

21 have to present that fairly to the Trial Chamber. I will work on it,

22 Your Honour. I will work on assessing the report. I will work on seeing

23 how we can save time, how we can do it the most efficiently. I'll do my

24 best. I will work on recruiting such members of the team as I can,

25 whether they are paid or unpaid, given that we have other tasks to do.

Page 17268

1 We've got to present a Defence case. We've got a lot of witnesses. I

2 can't have the whole team working on final brief. Mr. Josse and I will

3 not have significant time, practically no time maybe even, but we won't

4 have significant time to work on that if the schedule is anything like

5 contemplated.

6 So that's it. I'm not trying to be a Cassandra, Your Honour. I

7 don't have to try, Your Honour. That is the position.

8 JUDGE ORIE: Mr. Harmon, I take it there's no need to make any

9 observations in that respect. The Chamber is aware, of course, without

10 going into any details, the Chamber, of course, is aware that this is not

11 an easy case to deal with. Mr. Stewart, if you would compare the time,

12 sometimes there can be other Trial Chambers in the cases, whether or not

13 comparable or not, the time they take for preparing the judgement, you may

14 have noticed that this Trial Chamber is not only tough on discipline,

15 organisation, efficiency, et cetera, for the parties, but is also tough

16 for itself. And, of course, this could lead to a lot of speculation, such

17 as would the Chamber limit their own time to prepare judgement to the

18 extent that -- to write a bad judgement, that was not on our mind when we

19 scheduled the time both for filing of final briefs and preparing a valid

20 judgement.

21 The Chamber appreciates that you expressed again the effort you'll

22 make in order to see whether you can do the best. At the same time, of

23 course, it did not escape my -- I think you also said that we -- as far as

24 we can see now we could not reasonably do it within the time.

25 There again the Chamber noticed very well your concern, but might

Page 17269

1 not be able to schedule now today and say you get two weeks more for your

2 final briefs or something like that. But it's on the record at this

3 moment that you expressed serious, very serious concern, in view of the

4 time available for the preparation of final briefs.

5 MR. STEWART: Well, Your Honour, I'm not asking for anything

6 specific today, because it was, I hope, clear from what I said that I need

7 to do more work on this anyway to keep the Trial Chamber more fully

8 informed. I need to look at this particular report, among other things,

9 in more detail than I've been able to do, and in fact discuss with the

10 person concerned, who's not available in The Hague at the moment anyway,

11 Your Honour. I do undertake to do that.

12 JUDGE ORIE: Then we move to 3(a)(5), Mr. Krajisnik's

13 communications with the Trial Chamber and Registry, need for clear

14 practice on acceptance, refusal, return, and copies/notification to

15 Defence and Prosecution counsel.

16 I'll give you an opportunity to further explain exactly what you

17 had in mind, Mr. Stewart, but at the same time, I already make the

18 observation that recently the Chamber has expressed, at a number of

19 occasions, some concern about not making this Court a pen club, but rather

20 to concentrate matters in Court.

21 MR. STEWART: It's a very short item, to some extent trying to tie

22 together matters which have already been discussed in Court. And of

23 course it involves the Registry, who are no doubt here in spirit but not

24 actually around the courtroom today. Well, of course they're represented

25 in Court by one person, but the representative of the Registry that we had

Page 17270

1 here the other day are not here. But, Your Honour, it is just that, to

2 try to first of all, with respect, to enforce Your Honour's request that a

3 pen club is not what we end up with. That's cut down to the bare minimum.

4 JUDGE ORIE: Is it the right expression? Because on the

5 transcript it appears as a club. I don't know whether the pen club was

6 the right expression.

7 MR. STEWART: I think it does perfectly well, Your Honour. It's a

8 long time since I belonged to such an outfit, but that's perhaps in my old

9 age I'll return to it, Your Honour, coming soon. The -- but -- it feels

10 that way.

11 No, Your Honour. All we're requiring, actually, with respect, is

12 that despite that discouragement, that any such material that does come to

13 the Trial Chamber or the Registry, please, could we have it, unless there

14 is some -- please could we have it straight away, unless there is some

15 absolutely compelling reason why it's thought that it's appropriate to

16 keep it from the Defence team and keep it confidential, in which case,

17 could we also be knifed at least that has happened. It's as short as

18 that, Your Honour. It has been a terribly untidy business, and it has

19 caused great confusion for us.

20 JUDGE ORIE: Whenever there's any need, and I'm also addressing

21 you, Mr. Krajisnik, whenever there's any pressing need to have

22 correspondence which is sent by yourself and where you seem to have

23 developed the habit of sending copies to the members of the Trial Chamber,

24 first of all, we'd like to avoid the Chamber to be involved in all kind of

25 practical matters with the Registry unless properly introduced in a proper

Page 17271

1 procedural way, and not just by sending copies of letters, but at least

2 that you -- if you send such letters, that you inform counsel. And of

3 course, Prosecution only if there's any relevance for the Prosecution

4 involved in it.

5 The Chamber will have further conversations with the Registry on

6 how to -- the problem is that, since the correspondence of Mr. Krajisnik

7 is usually written in B/C/S, that you would not know what it is until it

8 it's translated, and therefore, it might not be too easy to develop a --

9 because you have to register incoming mail not after you have read it or

10 have it translated and then decide whether or not you register it, because

11 you've read it meanwhile. So we have to develop some kind of a system.

12 But most important is that it should be the exception and not the

13 standard.

14 If that's enough, for the time.

15 MR. STEWART: Absolutely, Your Honour. Thank you for that. That's

16 absolutely adequate.

17 JUDGE ORIE: Yes. Then next point is 3(a)(6). It seems to

18 relate, perhaps, to recent events on the Registry informing the Chamber on

19 their perception of what happened during talks that are not our primary

20 concern, but of course which might have an affect on this trial. Is that

21 what you would like to raise?

22 MR. STEWART: Yes. Again, this will be a very short point,

23 Your Honour. That perhaps was an illustration of that, as a result of the

24 discussion in Court the other day. And actually, my suggestion, I think

25 the idea was that there would be a joint memorandum going into the Trial

Page 17272

1 Chamber. I have communicated with the Trial Chamber, copied to the

2 Prosecution and the Registry this morning, that -- and I made it clear,

3 there wasn't any suggestion at all that the Registry representatives were

4 not conscientiously trying to give a neutral account to the Trial Chamber.

5 But it's hard to achieve that, Your Honour. These have been long,

6 complicated, protracted discussions. The Registry know that I appreciate

7 their efforts but don't feel that they've managed the almost impossible

8 task of producing a neutral account. The request -- we, in fact, then,

9 didn't participate in that in the end, Your Honour. We looked at their

10 first draft, but it was clear it was going to take a terrific lot of time.

11 There have been negotiations about negotiations. It's like those talks

12 about talks about talks that happen. So we didn't spend time on it in the

13 end.

14 [Trial Chamber confers]

15 JUDGE ORIE: Mr. Stewart, apart from the general observation you

16 made, in respect of the specific example we just discussed, you may have

17 noticed that, after some consideration, the Chamber issued a decision for

18 which it might have assisted already before we received it. So to that

19 extent --

20 MR. STEWART: That was understood.

21 JUDGE ORIE: -- it's not a matter of urgency at this moment.

22 Nevertheless, if you feel unhappy with the way the Registry presented the

23 course of events, it's up to you to decide whether you'd like to briefly

24 comment on it in a short writing. It doesn't necessarily have to be a

25 submission in the case itself. But this has been a communication with the

Page 17273

1 Chamber of which you're aware and of which you'd like to, as far as I

2 understand, at least to correct or comment or give your view. In the

3 Chamber's view, it's not an urgent matter, but we certainly will not

4 prevent you from just submitting informally a different or -- a different

5 view or at least a view not totally the same as the Registry.

6 MR. STEWART: Thank you for that, Your Honour. And the Registry

7 themselves very fairly indicated that they would have no possible

8 objection to that. It's only this, Your Honour. It takes a little bit of

9 time. But if -- Your Honour is absolutely right. On that particular

10 afternoon, by the time we were considering the draft memorandum,

11 Your Honour's decision had already been given, so it really didn't seem to

12 be an urgent matter. The point, really, is that it's only if and when such

13 material is ever going to be looked at or considered by the Trial Chamber

14 in relation to any actual decision. But whether it's a large or a small

15 decision, that it's necessary to go through this exercise at all. But if,

16 as I'm understanding, is that this material is something which the Trial

17 Chamber may regard as having at least some relevance to certain aspects,

18 then we will take that opportunity, Your Honour, accepting Your Honour's

19 kind observation that it's not immediately urgent.

20 JUDGE ORIE: The Chamber would also not mind if you wait and see

21 whether there ever comes a point where it might gain some importance.

22 MR. STEWART: That would be fine, Your Honour, if you can please

23 let us know when we're about to reach that point.

24 JUDGE ORIE: Yes. Of course, the Chamber is by far more

25 interested in seeing that after a long period of time some kind of an

Page 17274

1 agreement is reached because then I hardly can imagine that the course the

2 negotiations took would be of any relevance. The Chamber would only be

3 too glad if there would be an agreement.

4 MR. STEWART: That's absolutely right, Your Honour, and that would

5 be nice.

6 JUDGE ORIE: 3(a)(7), Mr. Stewart.

7 MR. STEWART: Yes, Your Honour. This was really just an inquiry.

8 It may be that it's absolutely -- it turns out to be absolutely

9 unnecessary. We wonder whether it is, just in whatever systems operate,

10 clear that when, for example, something is redacted, it goes right out of

11 evidence, that it is not then retained within the Trial Chamber at all or

12 is retained in some form that it's no longer looked at, no longer

13 considered by anybody in the Trial Chamber working on this case. Because

14 it shouldn't be. After all, if it's not in evidence -- I'm not talking

15 about legal submissions, of course, but if it is not in evidence, then it

16 in principle should not be in the hands of anybody in the Trial Chamber.

17 May we inquire, Your Honour, whether those systems are set up in such a

18 way that that is the position.

19 JUDGE ORIE: I fully agree with you. Material that is not or not

20 in full in evidence or not in full in evidence any more if has been

21 redacted at a later stage, should not be considered, and the best way of

22 assuring that it will not be considered is that it is not there. Apart

23 from that, we'd like to keep all the relevant material, but also like very

24 much to get rid of all the irrelevant material as soon as possible.

25 I'm not saying that sometimes these matters, a lot of copies

Page 17275

1 distributed, that it could never be on a desk for another five minutes,

2 but we fully support the thought which is at the basis of your

3 observation.

4 MR. STEWART: Thank you, Your Honour. That's all I need on that

5 item. I'm grateful for that.

6 JUDGE ORIE: 3(a)(8), Mr. Stewart. And after we have dealt with

7 3(a)(8), Mr. Harmon, I didn't give you an opportunity to comment on the

8 last observation, but I take it that you would, all being professional

9 lawyers and knowing what procedural law is about, that you would fully

10 agree.

11 MR. HARMON: Yes.

12 JUDGE ORIE: Yes. Then after I've given you an opportunity to

13 deal with 3(a)(8), I'll give an opportunity to Mr. Krajisnik to raise any

14 matter he would like to raise at this moment.

15 MR. HARMON: Your Honour, sorry. We also have other matters that

16 we want to raise that I reserved from the earlier discussion on the 65 ter

17 submissions.

18 JUDGE ORIE: Yes. These are the other matters, yes, Prosecution.

19 Perhaps then I'll give you first an opportunity. At the same time, I want

20 to prevent that we have to rush too much at the very end, which might give

21 Mr. Krajisnik the impression that what he would like to say is just if

22 there's any time left, and that's not how the Chamber perceives it.

23 Mr. Stewart, physical and mental welfare of Mr. Krajisnik and his

24 Defence team.

25 MR. STEWART: Well, yes, Your Honour. It could be that -- may I

Page 17276

1 suggest, it could be that this item be better dealt with after

2 Your Honours have given Mr. Krajisnik an opportunity to speak.

3 JUDGE ORIE: But then I'll first -- Mr. Harmon, how much time do

4 you think you would need for the matters you would like to raise?

5 MR. HARMON: My submissions will take five minutes.

6 JUDGE ORIE: Okay. Please proceed.

7 MR. HARMON: You want me to proceed, Your Honour?


9 MR. HARMON: All right. Thank you very much.

10 Now, Mr. President and Your Honours, amongst the items that need

11 to be submitted pursuant to Rule 65 ter (G), in which the Judge shall

12 order the production of is 65 ter (G)(f)(ii), which I will read. "A list

13 of exhibits the Defence intends to offer in its case, stating, where

14 possible, whether the Prosecutor has any objections as to authenticity.

15 The Defence shall serve on the Prosecutor copies of the exhibits so

16 listed."

17 We haven't received a list of exhibits. It is our request that

18 the Court order the production to the Prosecution, as soon as possible,

19 but no later than the commencement of the case, a list of exhibits the

20 Defence intends to introduce in the course of its trial. Not only are we

21 disadvantaged by having insufficient factual summaries, we have no list of

22 exhibits.

23 Furthermore, Your Honour, I would use as a guideline an additional

24 item that the Court is aware of, and that is the draft procedural

25 guidelines that the Court imposed on the Prosecution at the beginning of

Page 17277

1 its case, and I refer to item number 3. Item number 3 required the

2 Prosecutor to provide the other party and the Chamber a list not only of

3 the order of the calling of the witnesses, which we also request; two

4 weeks prior to the scheduled date of appearance at trial but also a list

5 of potential exhibits. In addition, a brief description of the potential

6 exhibits to be tendered through each witness shall be provided in a

7 separate sheet.

8 Our practice in the Prosecution's case, one, we did indeed supply

9 a list of exhibits in toto at the beginning of our case. It was attached

10 in a separate submission that was submitted to the Defence months, if not

11 years, before the commencement of the case.

12 Two, our practice was to provide a list of exhibits that were

13 associated with each witness and provide to the Defence a reference number

14 identifying and in many cases a copy, an electronic copy of the actual

15 exhibit that we intended to tender through the witnesses. We are asking

16 for equal treatment and we are asking the Court, therefore, to make an

17 order requiring the Defence to provide us with a list of exhibits to be --

18 that they intend to use pursuant to 65 ter (G)(f)(ii). Second of all,

19 that two weeks before the commencement of calling of each witness, that we

20 get a list of potential exhibits to be used by the witness, not only a

21 list of exhibits, but copies of the exhibits themselves.

22 And three, in respect of the witness who is going to be commencing

23 his testimony on the 10th, that we receive no later than Friday, close of

24 business, a copy of the list of exhibits -- copies of those exhibits that

25 will be introduced through the witness. That's my request, Your Honour.

Page 17278

1 JUDGE ORIE: Yes. I do understand. Of course, in the last order,

2 the Chamber dealt with the -- I would say with the delay in providing a

3 full list of exhibits, ordering the Defence to file it as soon as

4 possible, because the Chamber felt at that time that if it would impose an

5 order to do it right away, that we would impose an order on the Defence

6 that they couldn't fulfil and that would finally not assist the

7 Prosecution nor the Chamber. But of course the 65 ter (G) list is still

8 due, but I do also understand that it's very important for the Prosecution

9 to receive the exhibit list for witnesses not later than two weeks before

10 their calling. Of course, with the first witness, we are already over

11 that poignant time.

12 Mr. Stewart, can we expect a similar positive approach about the

13 two weeks, and could you give us any indication on, even if it were an

14 incomplete list, what exhibits, overall, you would like to present during

15 the Defence case?

16 MR. STEWART: Your Honours can always expect a positive approach

17 from the Defence. And we certainly, as far as the two weeks are

18 concerned, well, yes, Your Honour, in the same way that with the 65 ter

19 summaries we'll do our best, we'll do our best with exhibits as well. May

20 we simply, without wishing to -- it's not a major complaint, but leave

21 aside the question of disclosure all those years ago of the full list of

22 exhibits by the Prosecution. As we went through the witnesses for the

23 Prosecution, Your Honours will recall the practice tended to be that we

24 received a draft list or a list of potential exhibits for each witness as

25 they were coming up. Usually, I think - I would stand to be corrected by

Page 17279

1 reference to the record - usually not two weeks before; usually --

2 sometimes two weeks before, but very often ten days, a week before. That

3 list typically had far more items on it than were actually produced

4 through that witness. In some cases, far, far more.

5 So that the actual refined work on what exhibits were to be

6 produced through that witness was very often done in the very last few

7 days, sometimes in the very last few hours, occasionally we would turn up

8 in Court and get given a drastically reduced list of exhibits.

9 Your Honour, we coped with it. It's a -- it wasn't easy sometimes, but

10 it's -- and we rarely complained, in fact. This is a pragmatic, practical

11 thing.

12 So far as this imminent witness is concerned, there we have made

13 our number-one prior to with this witness to get him here on Tuesday. That

14 has been the name of the game. We spoke to him -- I was there. I don't

15 speak to him directly, because we don't share a language, this particular

16 witness and I, but I was there when the conversation took place. We had

17 to make sure that he sent very urgently stuff to ensure that the Victims

18 and Witnesses Unit could make sure he got here and so on.

19 JUDGE ORIE: Mr. Stewart --

20 MR. STEWART: May I just simply finish this, Your Honour, because

21 I do wish to explain this.

22 He told me, because this does help as far as this particular

23 witness is concerned. He told me, because I asked through Mr. Karganovic

24 there in the same room on the telephone, he told me that he perhaps had --

25 because I asked him specifically. He perhaps had 100 pages of material

Page 17280

1 which might be relevant. Now, that's what the witness himself thought

2 might be relevant. The chances are, Your Honour, it will turn out to be

3 less when counsel has considered the matter. I did try to get that faxed,

4 and so it gets -- we fax it, we scan it, and so on. I did try to get that

5 done, Your Honour. There's only so much pressure I can bring to bear on a

6 witness when my primary object is to make sure that that witness

7 cooperatively turns up and comes to The Hague to be here on Tuesday. I'm

8 sure Your Honour can see that one has to approach that in this situation

9 with a little bit of care and judgement.

10 So, Your Honour, the position with this witness, as far as we

11 expect it to be, is that we will get a chance to see -- this witness is

12 the first witness. This is not going to be a typical case, of course.

13 This has been the object of this witness. We hope to see this material,

14 so far as it's -- we don't think there will be a lot of exhibits anyway,

15 Your Honour. We hope to see it before the weekend and we will process and

16 deal with it as absolutely quickly as we can.

17 So far as future witnesses are concerned, Your Honour, of course

18 we are going to do our utmost to communicate with them in advance, try to

19 make sure -- because there will be time to send stuff by post as well -

20 try to make sure that stuff is sent to us in The Hague or faxed in good

21 time for us to review it here.

22 So, Your Honour, on a pragmatic basis, we understand what's

23 required. We will do our best. Your Honour, we note and, on the Defence

24 side, are content with paragraph 5 of the most recent order that the Court

25 made in relation to this matter. And we do understand the most important

Page 17281

1 need for the Prosecution at least to have a fair opportunity of preparing

2 for each witness. I'm not sure I can offer any more than that,

3 Your Honour, except our general undertaking to do our best on this.

4 JUDGE ORIE: Mr. Harmon.

5 MR. HARMON: Your Honour, to the extent that the Defence was

6 inconvenienced because they had a list that may have been too long, I wish

7 I and the Prosecution could suffer the same fate. We have no list. We

8 are not operating on any list, a complete list, an incomplete list; we're

9 operating on nothing.

10 Second of all, this case has been pending and the Defence has had

11 this case at hand, and surely they must know what exhibits they intend to

12 tender, at least a significant number of those exhibits.

13 Three, I think that given the incomplete and unsatisfactory

14 summaries, factual summaries that we have received, no exhibits, copies of

15 no exhibits. We are put in an untenable position that has the potential

16 to disrupt the progress of this trial. It may well be that when

17 confronted with a factual summary a few days before the witness shows up

18 and a number of exhibits that we don't know exist, that will be presented

19 for the first time, it may be, and quite reasonably so, we have to ask

20 that the cross-examination of the witness be deferred to another day.

21 I'm saying that now because we strive and are earnestly trying to

22 get this case completed in as an efficient way as we can, but we have been

23 fettered by a lack of facts supporting the witnesses' summaries,

24 incomplete -- no exhibits relating to them, and I think it's -- there is a

25 limit to what the Prosecution needs bear in presenting its case and

Page 17282

1 fulfilling its obligation to its public. Thank you.

2 MR. STEWART: Your Honour. May I comment, Your Honour?


4 MR. STEWART: It is all very well for Mr. Harmon to say, at line

5 14, I think "sure they must know what exhibits they intend to tender."

6 JUDGE ORIE: May I just -- I can imagine that if you're not yet --

7 and I'm not at this moment saying whether the Defence is to be blamed for

8 that or not or ... I take it that further conversations with these

9 witnesses may result in new exhibits, and that's not -- certainly not the

10 perfect course. But that's what I can understand to be the case. If I

11 just can make one general observation. No. I'll make two.

12 First of all, I couldn't say that there's no merit in what

13 Mr. Stewart said about lists being provided sometimes ten days in advance.

14 And, Mr. Harmon, if you say, well, it's better to have a very long list

15 than no list at all, well, you could take all kind of positions on that.

16 If you get a list which is not manageable because it's too long and if you

17 have limited resources to review them, then that might create a huge

18 problem.

19 Then the next observation, and I'm addressing the Defence -- and

20 let me just give you an example. I think it's 15 years ago that there was

21 a court in the Netherlands which was fighting against delays all the time.

22 They did that for a couple of years. And then they -- at a certain

23 moment, they understood that if by a very intensive effort they would

24 create two weeks of additional space, that fighting against the delays was

25 still what they had to do, but at the same time, it had less dramatic

Page 17283

1 consequences because they had created a tiny little bit of more time.

2 The same here is true. If you're fighting against the two weeks'

3 delay, if you manage at one point to create one week extra, then you're

4 not always fighting against the two weeks any more, whether it will be ten

5 days, 11 days, 12 days, or 13 days. But at least then you have then

6 created for yourself the luxury, which of course is not a real luxury, to

7 fight against 14, 15, 16, 17 days, which makes all of the difference for

8 the other party. This is just a general observation I make at this

9 moment.

10 I do see the problems for both parties that exist at this moment

11 in respect of the exhibits. At the same time, I also see that what, in

12 practice, has become more and more important, that is, the two weeks'

13 limit, whether always kept or not, at least both parties commit themselves

14 to accepting and at least providing the other parties two weeks in advance

15 with the relevant information. This is not to say that this is what we're

16 aiming at, but at least it's the bare minimum for working at all.

17 This also brings me to another -- you have referred to the

18 procedural guidelines, Mr. Harmon, and you've made specific reference to

19 item number 3, order of calling of witnesses.

20 Mr. Stewart, perhaps it's totally unnecessary, but of course the

21 procedural guidelines would similarly apply for the presentation of the

22 Defence case. And of course, there are few matters which are irrelevant.

23 1 and 2 are irrelevant. But the others, 92 bis statements, 94 bis

24 statements, Rule 89(F) procedure, although that has been developed over

25 the time, translation of exhibits, et cetera, that remains in its basics

Page 17284

1 the same for the presentation of the Defence case.

2 MR. STEWART: Well, Your Honour, in principle, I couldn't possibly

3 resist that, except to observe that possibly, in the light of experience,

4 there have been some improvements and adaptations and there maybe have

5 been some -- I haven't reviewed them in detail this morning. There may

6 have been turned out in the light of experience to be some aspects which

7 are not in practice workable in quite the way, the way contemplated. But,

8 Your Honour, in principle, yes.

9 JUDGE ORIE: I just wanted to draw your attention to the validity

10 of the guidelines.

11 MR. STEWART: Indeed.

12 JUDGE ORIE: Then, Mr. Harmon, the five minutes you asked.

13 MR. HARMON: I hope my submissions were made in five minutes or

14 less, Your Honour. I've completed my submissions.

15 JUDGE ORIE: I didn't know whether you had completed them or not.

16 Then one small matter, which is that whenever there are updated

17 summaries of the witnesses, apart from disclosing to the other party, the

18 Chamber would like to receive a copy of it as well.

19 MR. STEWART: Of course, Your Honour.

20 JUDGE ORIE: I then think that we should then turn to the issues

21 Mr. Krajisnik wanted to raise.

22 Mr. Krajisnik.

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

24 given me this opportunity to address you. I hope I will be brief and up

25 to the point. However, I need to say something that I don't say gladly.

Page 17285

1 Mr. Stewart and myself have reached a point of permanent discord,

2 and this permanent discord has a huge impact on my health condition, not

3 only on the trial. I am not able to reach an agreement with Mr. Stewart

4 on a single point, save for those points that he deems necessary to agree

5 on. I want to be fair in saying this. There are two reasons to that.

6 One is a subjective reason, which concerns the nature and private problems

7 that Mr. Stewart has. And the other reason is objective, and that is that

8 Mr. Stewart is not able to get on top of the matters here. And just for

9 the record, I would like to state that my defence is being improvised. I

10 cannot blame Mr. Stewart for that. Not only him. But the best example

11 you may have seen here today is the fact that Mr. Stewart has had to take

12 the line of less resistance and that he cannot meet all the demands.

13 I don't think that my trial can be fair if there is so much

14 pressure during the trial. I don't need to talk to Mr. Stewart at all. I

15 have never felt the need to talk to Mr. Stewart. And there is another

16 issue that I would like to tackle, and that is an admission on the part of

17 Mr. Stewart which concerns my resignation.

18 I have asked you, Your Honours, to -- first, to be present when

19 the Prosecutor's witnesses were being examined, and for our researchers to

20 have the right to challenge the witnesses. There are lists circulating in

21 Bosnia and Herzegovina with thousands of names on those lists, and people

22 fear to come here. Many have cancelled their appearance. And Mr. Stewart

23 will have a huge problem bringing the witnesses in. If a single

24 Prosecutor's representative appears, this will be a red alert for the

25 witnesses, and these witnesses are afraid enough already. They all fear

Page 17286

1 that they will become accused. I kindly ask you to prevent that, because

2 the Prosecutors have snatched a lot of our witnesses. And when they tell

3 them, "You are a possible suspect," they tend to change their statements.

4 They started by willing to be Defence witnesses and then suddenly they

5 turned into Prosecutor's witnesses.

6 And this change that has happened, and Mr. Stewart -- has happened

7 after your instruction, and really, believe me, I have no more strength to

8 talk to Mr. Stewart like this.

9 I wanted to ask the Trial Chamber something about Status

10 Conferences which were taking place before the trial. I believe that it

11 would be very useful, given the complexity of the case, for the accused to

12 be given an opportunity at the end of every week what he cannot say during

13 trial, and that is that I am having a very hard time. I have never taken

14 a single tranquillizer, but I have to tell you today that every night I

15 wake up in a sweat. And this is the main problem in this trial.

16 JUDGE ORIE: Mr. Krajisnik, I'm interrupting you for the only

17 reason that since you are dealing with matters of a, well, relatively

18 private character, your health situation, your -- if you would prefer to

19 do that in private session, we would go into private session. I just give

20 the opportunity.

21 THE ACCUSED: [Interpretation] I don't want to go into private

22 session. I am not an argumentative person. I have always wanted to seek

23 compromise in every situation. I now feel to have been completely

24 excluded from my own case, and I believe and I feel that I should not

25 allow that, because there are so many problems that I can be involved in,

Page 17287

1 and that's why I'm addressing the Trial Chamber. I understood your

2 instructions when you were reading those instructions, as to whether I

3 would be able to put questions. I understood the first part. I was very

4 happy, and then I understood that this was just the hedging on your part

5 and I was disappointed.

6 And now, on to the problem that I have with Mr. Stewart, the fact

7 that he cannot do the job, that the deadlines are too short, and also he's

8 over-emphasising a problem which does not exist. I have participated in

9 funding my defence, and I am willing to prove this before you. And it is

10 not fair for this to become the sticking-point in this case. I don't want

11 this to be something that will delay this case even further.

12 Thank you very much.

13 JUDGE ORIE: Thank you, Mr. Krajisnik, for these observations.

14 You're requesting a kind of a Status Conference, at least a short moment

15 on a regular basis, to deal with practical matters or matters that are of

16 your concern. Again, I'd like to invite you to do it as much as possible

17 through the intervention of Mr. Stewart. The issue you raised is -- that

18 witnesses might fear to end up as being accused is a complex legal issue.

19 That's also the reason why it's -- I don't know whether you discussed it

20 with Mr. Stewart or not, but of course if you approach a witness and if

21 you hide from him that you consider him to be a potential suspect or a

22 potential accused, then that would not be fair. At the same time, if you

23 tell to someone, "I have reasons to believe that you might be, if

24 prosecuted, found guilty of certain offences," that, of course, could make

25 him hesitant to appear and to try to take a course which would protect him

Page 17288

1 against it. That might be different for Prosecution witnesses compared to

2 Defence witnesses, because I take it that, if approached by the Defence,

3 the Defence would not explicitly, at least is not under a duty, to inform

4 the witness that he might be a suspect or an accused.

5 At the same time, I do understand that some people that, for

6 themselves, have considered the possibility of becoming a suspect, either

7 before this Tribunal or in any domestic jurisdiction, that they would be

8 hesitant to come to the Tribunal and to testify. All kind of legal

9 mechanisms, such as a safe conduct for witnesses, are there to -- in order

10 to try, to the best possible, to resolve these dilemmas. Another

11 procedural technique is to inform the witness that he is not under a duty

12 to incriminate himself. He can then be forced to answer the question, but

13 that then will have no consequences before this Tribunal.

14 So, therefore, it's a complex legal issue which is perhaps

15 perceived by those who are not fully aware of all the ins and outs of this

16 problem, not in full depth.

17 The example shows to me again that these are matters in which the

18 legal expertise, whether you agree or disagree on matters is one thing,

19 whether you can be informed by counsel on legal aspects of a problem you

20 are facing that I think there could hardly be any disagreement on that.

21 I'm responding to the example you just gave also in order to make clear to

22 you that complex legal issues should not primarily be addressed to the

23 Chamber, the Chamber not being in favour of one of the parties. So

24 whether I should advise you safe conduct of a witness, how to approach a

25 witness, all these kind of matters are really for the parties to decide

Page 17289

1 and to consider. And of course the Chamber could never be manoeuvred in

2 the position where it would be the responsibility for the Chamber to --

3 first of all, to inform whether it would be the Prosecutor or the Defence

4 on the law. It's rather the other way around. The parties assist the

5 Chamber in finding the law.

6 And certainly, we should stay far from any interference on matters

7 which are within the Defence team or matters that are within the

8 Prosecution team. Nevertheless, we'll consider whether, for -- but not

9 focussing on these kind of matters, whether it would be wise to reserve

10 some time on a regular basis to hear from you of concerns you may have. At

11 the same time, it may also be clear that the Chamber, although giving you

12 room for participation in your own defence, is not giving you unlimited

13 room. And the Chamber has given a decision that you are not allowed to

14 represent yourself, and that, of course, is a decision which stands.

15 We'll consider the matter.

16 Is there anything else you'd like to raise, Mr. Krajisnik?

17 THE ACCUSED: [Interpretation] Mr. President, I don't know. Maybe

18 you have not understood me properly. I only asked to be given the

19 permission for the Prosecutors not to be allowed to talk to the Defence

20 witnesses. There is a psychological burden on the Defence witnesses

21 because there are lists circulating in Bosnia and Herzegovina intended for

22 the court in Sarajevo. The mere appearance of the Prosecutor is enough to

23 scare our witnesses away. And the same case applied to us. We never

24 talked to any of their witnesses. We did not have the time, neither the

25 investigators, nor the Defence counsel. And all I'm saying is that the

Page 17290

1 Prosecutors should not now be allowed an opportunity to talk to our

2 witnesses. And now, as for the correspondence, if I may just briefly be

3 heard on correspondence. May I be allowed that?

4 JUDGE ORIE: Please do.

5 THE ACCUSED: [Interpretation] I don't want to exchange letters

6 either with the Trial Chamber or the Registry. When I can't deal with a

7 problem and when my Defence counsel cannot deal with a problem with the

8 Registry, I have to address somebody. You tell me who I should address.

9 For example, let's take my space for files. This is a very trivial

10 problem, but it has to be dealt with. I need to know who to talk to about

11 that problem.

12 JUDGE ORIE: I can't tell you to whom you can talk about certain

13 problems. The Registry has its own responsibilities that are not under

14 all circumstances to be reviewed by the Chamber. On some matters it's the

15 President of the Tribunal who is competent to deal with certain matters

16 which are within the first-instance competence of the Registry. Sometimes

17 a specific Rule exists where you can ask for review. Of course, the

18 Chamber, as you may have noticed before, is always willing to see whether

19 it can assist in resolving any existing problem with the Registry. But on

20 some matters, it would not be very wise for the Chamber to insist. As you

21 may have noticed that on the matter of laptops, et cetera, the Chamber

22 took an active approach to see to what extent it could assist you.

23 On the other hand, there are limits as well. Whether you have

24 sufficient room to store your material, well, I can tell you that I've got

25 the same problem with the Registry, because there's a lot of material, and

Page 17291

1 I'm fighting now and then for new bookshelves to get them all ready. But

2 of course, sometimes there's a matter of detail which is not of a kind for

3 the Chamber to interfere. Nevertheless, if there's any formal position

4 for you that you can ask for review, either by the Chamber or by the

5 President of this Tribunal on any decision taken by the Registrar, of

6 course Mr. Stewart can clearly tell you what the possibilities are, what

7 the remedies are, against such decisions.

8 Sometimes, if the matters are of some importance - and I'm just

9 referring to the laptop as one of the things the Chamber considered to be

10 important - the Chamber certainly will assist, if asked to do so, to see

11 whether the problem can be resolved. There are also sometimes matters

12 which will not be resolved in a way which satisfies both parties, either

13 you or the Registry. I cannot promise that the Chamber can always

14 interfere in such matters. This is just a brief response to your request

15 for intervention.

16 Then the previous issue raised by you was whether the Prosecution

17 at this moment has interviews with Defence witnesses, which would surprise

18 me, in view of the position taken earlier today, where the Prosecution

19 said that they would approach prospective witnesses if not in due time

20 they would have received the summaries, which, understood properly, means

21 that if that situation would not arise, at this moment, at least, the

22 Prosecution was not approaching the Defence witnesses. On the other hand,

23 I can also see that, on the basis of the list presented, that there might

24 be some problems. But I'd like to hear from the Prosecution first whether

25 there's any issue in this matter, unless Mr. Stewart would first like

Page 17292

1 to.

2 MR. STEWART: Thank you, Your Honour. I just had a -- well, if I

3 make a proposal and a submission, then that may be a practical way and

4 then the Prosecution can see. Your Honour, in that, although I said for

5 other purposes, it wasn't particularly helpful to look at the Kupreskic

6 decision without the 65 ter summaries. On that aspect of the order there,

7 and that's what we're referring to, with a slight modification which we

8 suggest might help to allay some of Mr. Krajisnik's concerns, but

9 nevertheless be workable in practice, an order along those lines would

10 perhaps work well. In that case, it was ordered that the Defence should,

11 within two weeks of the date of the receipt of this list, but we talked

12 about the timing. But if we didn't provide the 65 ter summary by the two

13 weeks before the witness was due, then we'd suggest that the Prosecution

14 then had the opportunity of applying to be given the opportunity to

15 interview the witness, which could be done very quickly. Because if there

16 were some perfectly sound reason why the two-week deadline had been missed

17 or if it was a relatively minor witness, where really that didn't cause

18 any significant prejudice in that particular case, then it may be that the

19 Trial Chamber, based on whatever submissions the Defence make, will say

20 no, that's not reasonable. But then we would at least be, in principle,

21 the Prosecution may very well then have that opportunity, but the Defence

22 would have the chance, and of course to consult Mr. Krajisnik to raise any

23 particular issues.

24 So that might allay Mr. Krajisnik's concern. And, well, it

25 operates as a sort of sanction on the Defence as well to ensure that that

Page 17293

1 material -- and on Mr. Krajisnik as well, that we should all cooperate on

2 this side to try to ensure that that material is provided within that

3 time.

4 JUDGE ORIE: Yes. I didn't understand the observations by

5 Mr. Krajisnik to be that specific on the two-weeks rule and then

6 approaching. I understood it to be more in general terms, that he says

7 Prosecution is strolling around in Bosnia and Herzegovina and approaching

8 our witnesses, which of course would be a totally different matter. But

9 perhaps I misunderstood Mr. Krajisnik.

10 MR. STEWART: No, Your Honour, I don't -- with respect, I don't

11 think Your Honour did. My specific suggestion is designed, among other

12 things, to try to meet Mr. Krajisnik's general concern, on the footing

13 that Mr. Krajisnik possibly can't, and I just have to say this, it may be

14 that Mr. Krajisnik's concern can't be met by a blanket prohibition in all

15 circumstances. So I'm suggesting what seems a pragmatic compromise which

16 should allay Mr. Krajisnik's concerns and should at least enable all such

17 concerns to be aired in relation to any particular witness, if that is an

18 imminent risk or suggestion that the Prosecution might approach that

19 witness.

20 JUDGE ORIE: I do understand. I hope that, especially knowing

21 that to my right, the English tradition prevails, and to my left, it's the

22 American tradition that prevails, that the parties will not force this

23 Chamber to make a final decision son issues like whether there's any

24 property in a witness knowing that the ocean divides the two traditions,

25 especially in this respect. So therefore, let's see whether we can keep

Page 17294

1 it on the practical level.

2 First, a simple question, Mr. Harmon. Is there at this moment any

3 activity by the OTP to approach witnesses which are on the list of the

4 Defence witnesses and for the reason that they are on the Defence list of

5 witnesses?

6 MR. HARMON: Not that I'm aware of, Your Honour. I would say,

7 however, that we reserve the right to approach witnesses, for a variety of

8 reasons, not only relating to this case, but for other cases. And to be

9 unduly restricted would hamper the ability of the Prosecution's office to

10 conduct its business in the way it sees best.

11 JUDGE ORIE: Yes. I do understand that. At the same time, would

12 you agree with me that the kind of impact Mr. Krajisnik describes is not

13 unimaginable?

14 MR. HARMON: I can accept that, Your Honour.

15 JUDGE ORIE: Yes. Would you also agree that of course it would be

16 of some concern to the Chamber to have this impact on witnesses which

17 would be fully beyond the, perhaps, knowledge and control of the Chamber,

18 since it might have an impact on the trial? And would you have any

19 suggestion on how to tackle that problem? On the one hand, to receive

20 respect from the Chamber for your duties, apart from your duties in this

21 case, and at the same time, meeting the concerns that might come up as a

22 result from performing those other duties?

23 MR. HARMON: Your Honour, we can only take this on a case-by-case

24 basis.


Page 17295

1 MR. HARMON: Second of all, there is a duty and obligation on the

2 Prosecutor's office to abide by Rule 2, the definition of a suspect, that

3 Your Honour touched upon it very correctly, that it would be improper for

4 us to talk to a witness who is indeed a suspect within the definition of

5 Rule 2. I can imagine all sorts of problems flowing from that, so --

6 JUDGE ORIE: I can imagine looking at the list, I could imagine

7 that since on that list there appear some persons that are accused before

8 this Tribunal, and of which I can understand that the Prosecution would

9 not just for the mere fact that the Krajisnik trial is ongoing, refrain

10 from any contact with such an accused if there would be a possibility to

11 have. But could you think perhaps about a practical way of at this one

12 time, reserving your right, dealing with the matter on a case-by-case

13 basis, and perhaps at the same time to establish a kind of communication

14 which would enable the Chamber as well to look after it, that it would not

15 have a perhaps unintended negative impact on this trial?

16 MR. HARMON: Of course we're not trying to influence this trial by

17 talking to potential witnesses --

18 JUDGE ORIE: That's why I said unintended.

19 MR. HARMON: -- who happen to be suspects. The Court does have my

20 assurance that our investigators do the minimum required in terms of

21 advising them that they are a suspect, and nothing further. That is what

22 we are required to do. We don't bludgeon the witnesses with the fact that

23 they're a suspect. We advise them that they are a suspect, under the

24 Rule, and then we proceed. And that may have the unintended effect on a

25 witness, but that is, unfortunately, what -- that is, unfortunately, a

Page 17296

1 consequence that cannot be avoided. Now, we don't intend, as I say, to

2 set about trying -- Mr. Krajisnik's fear is that we're going to intimidate

3 and -- purposely go out and try to intimidate witnesses who have been

4 identified on the list. We don't intend to do that. Again --

5 MR. STEWART: Your Honours, Mr. Krajisnik didn't say that.

6 MR. HARMON: I know he didn't say that.

7 JUDGE ORIE: While he didn't say it, I think, as a matter of fact,

8 I asked Mr. Harmon whether any such thing happened, not because

9 Mr. Krajisnik said it but because I wanted to know.

10 MR. STEWART: Well, it was not suggested they purposely went out

11 to intimidate witnesses, as I recall.

12 JUDGE ORIE: Okay. Let's -- I didn't understand the observation

13 of Mr. Krajisnik. But I asked Mr. Harmon whether it happened that they

14 approached witnesses on the list also, because there are witnesses on that

15 list, which of course comes close to intent, to whatever.

16 MR. HARMON: Your Honour, I think our point is made clear in terms

17 of the limitations that we have and the options that are available to us

18 under the circumstances that we have been presented in terms of getting

19 facts and information about witnesses who Mr. Krajisnik intends to call as

20 witnesses.

21 JUDGE ORIE: Yes. Of course we'll all have to give further

22 consideration to the matter. I limit it myself at this moment, putting

23 questions and make some general observations, the Chamber will discuss the

24 matter.

25 There's one final issue I'd like to raise, but I'm just looking at

Page 17297

1 the time, because we might run out of time.

2 Mr. Stewart, you said later today you'd like to make any

3 submissions on timing. I've given it some thought as well. Of course,

4 you emphasised a couple of times that the 1.007 hours were not a target,

5 because you indicated that you would have 800 hours and then including,

6 cross-examination, of course, which reduces the thousand hours to at least

7 30 or 40 per cent, because otherwise you could never end up with 800

8 hours. Nevertheless, if you would address the matter, I'd like to know a

9 bit more about how you came to your 800 hours, also in view of your

10 reference to the Milosevic case, where, without giving a lot of reasons,

11 the Chamber found that in that case the Defence, which is not conducted by

12 professional counsel, needed the same time, how this would translate in

13 this case, just assuming, and even if one takes into consideration that,

14 for example, you would have had on the 290 hours, another 30, 40, or 50

15 for savings on 89(F). That's one issue, how that 800 hours, how you

16 consider that.

17 Another matter that struck me when looking at the list, as far as

18 the testimony of Mr. Krajisnik himself is concerned, you gave some 56

19 items or issues you'd like to cover in the examination of Mr. Krajisnik.

20 First of all, I asked myself to what extent some of these items

21 could not be done in a different way. For example, if we are talking

22 about background, family, et cetera, of Mr. Krajisnik, I don't know

23 whether that should be presented orally or whether the Prosecution would

24 agree with just a short CV written by Mr. Krajisnik himself. And of

25 course you could give him guidance, what's relevant and what's not

Page 17298

1 relevant. But apart from that, looking at the 56 items, when I try to

2 understand these items and when I thought what time I would need to cover

3 these, then I thought that if you would come at one hour and a half on

4 each of them, that -- well, of course, some might need a bit more, others

5 might need less --

6 I don't know what the problem is at this moment. If there's

7 any ... I do see that there's some unrest in Defence circles, without

8 knowing what exactly happened.

9 MR. STEWART: No, Your Honour, I'm just looking for the pile of 65

10 ter summaries which were --

11 JUDGE ORIE: I've got mine.

12 MR. STEWART: -- which were just on the table somewhere and

13 they've moved along somewhere. I don't -- maybe they've gone back out to

14 the Defence room. I don't know.

15 JUDGE ORIE: There are 56 items on it.

16 [Defence counsel confer]

17 JUDGE ORIE: Okay. If you need mine temporarily, Mr. Stewart,

18 I'll give it to you. Okay.

19 MR. STEWART: Your Honour, I wrote it and I can remember. They're

20 behind me on the floor, Your Honour. There's a simple, practical

21 explanation. I put them there.

22 THE INTERPRETER: Microphone, please.

23 MR. STEWART: No, I put them on the floor, Your Honour. I've got

24 them back.

25 JUDGE ORIE: Of course, when I was looking at them, of course,

Page 17299

1 some would need more time, some perhaps less, but I would have an estimate

2 of, well, let's say one hour and a half each would approximately do, which

3 would bring us to 86 hours instead of 175. And of course it's not my

4 intention at this moment to go through all the 56 items. You'll

5 understand that. But if you could include that in any further

6 observations you'd like to make on time available.

7 MR. STEWART: Well, Your Honour, may I just comment immediately,

8 without finding the numbers.


10 MR. STEWART: Somewhere in there, the international negotiations,

11 we had Mr. Okin and we've got the details. We have Mr. Okin alone in the

12 witness-box for -- excuse me. I have the information on this. We had

13 Mr. Okin 6 of 6 hours in chief, 3.2 hours in cross-examination.


15 MR. STEWART: Variants A and B, we've had -- that's another item.

16 We've had witnesses. We've got all that stuff about December 1991 and

17 meetings and all that sort of thing. We've got six strategic objectives

18 here, Your Honour. That's an item. Six strategic objectives is going to

19 take many, many hours. Your Honour, of course, there are some items.

20 They're not all huge items. There are some items here. I can't find one

21 immediately, but there are some items that are perhaps going to take an

22 hour and a half, although we might be lucky to find very many of those.

23 Your Honour, what I am going to do, clearly I've done this in some

24 form, but what I haven't done yet, Your Honour, is I haven't gone through

25 on every item and stopped and thought and discussed with Mr. Josse how

Page 17300

1 much time will be needed on that item. We haven't had time to do that.

2 As I have gone through them quickly and thought, well, it's this, it's

3 that, and so on, to come to that provisional estimate. And I have also

4 thought about what Your Honour mentioned this morning about whether

5 perhaps some of the earlier items on the list, the background material,

6 might be dealt with by a combination of oral and in writing, though I'm

7 sure that Your Honours see how at the beginning of a witness's evidence it

8 can be important that he's given the opportunity to at least say something

9 himself directly to the Court about such matters, even if it's

10 complemented by or supplemented by some written material, some basic,

11 factual, written material, and that applies to a lot of items here,

12 programmes. If there's some simple, factual stuff, rather than have

13 Mr. Krajisnik run through some list or some chronology, we will always do

14 our best to provide that. But these are big issues, Mr. Krajisnik. We've

15 had whatever it is, 90-something witnesses. The intercepts, Your Honour,

16 we'll try and speed it up, but Your Honour will recall how very frequently

17 and easily we got bogged down on intercepts and how long they -- perhaps

18 in the light of experience, the Defence will be able to speed that up,

19 Your Honour. But it's not easy.

20 So, Your Honour, all I'm saying at the moment is that the 175

21 hours -- of course, it's good faith. I'm not suggesting anybody would

22 suggest anything different. But the 175 hours isn't just a figure plucked

23 out of the air. I have given -- it is I, really. I haven't had much

24 chance to discuss this so far. But we would like to also reach an

25 estimate on this which is more "we" than simply "I." That's one of the

Page 17301

1 values of having co-counsel and other members of the team. We will look

2 at it, Your Honour. But at the moment, it's -- we submit it's just not

3 possible to say no, that can be slashed by half or by some significant

4 percentage.

5 It does lead on to a more general point, Your Honour, which is as

6 things stand at the moment, an issue touched on earlier today, on the

7 Defence side, although this might often be the position in cases, we do

8 not have an urgent need - we can't speak necessarily for other people - we

9 do not have an urgent need to have a final decision on the 73 ter numbers.

10 After all, we've got one witness coming up next week for a couple of days,

11 then we have the break for a week and a half. It's not -- we're not

12 affected. We're not prejudiced or hampered in any planning on our side by

13 not knowing those numbers for the next few weeks.

14 So, Your Honour, we suggest that more work, more work on our list,

15 more work on such matters, and obviously these are very important items of

16 Mr. Krajisnik's own evidence would be valuable before those numbers,

17 they're not mere numbers, of course, they're terribly important numbers,

18 but before those numbers are identified or crystallised by the Trial

19 Chamber.

20 I hope that answers.


22 MR. STEWART: -- what Your Honour --

23 JUDGE ORIE: Perhaps it's wiser for the Chamber to give it some

24 more time and not at the end of this meeting say it's X number of hours or

25 it's Y number of days. Give it some more thought also on the basis of

Page 17302

1 what has been submitted today. At the same time, I want to avoid at any

2 cost, Mr. Stewart, that this would create any unjustified expectations as

3 far as time to be granted in addition to what has been scheduled until

4 now. But I take it that you understand that.

5 MR. STEWART: Well, I hear what Your Honour says and I understand

6 what it is Your Honour is saying. I just understand it. I say no more

7 than that, or at least I hope I do.

8 JUDGE ORIE: Let me be quite clear. If someone would think that

9 if we would strictly limit time or would be very tough on the matter, that

10 you should tell immediately, then the fact that we might take a little bit

11 more time, also since you say that it should not create any expectation

12 that we would be more lenient or more flexible. It's then a fully open

13 question and the mere fact that we do not give any decision today or

14 tomorrow morning should not create any expectations as far as the content

15 of the decision is concerned.

16 MR. STEWART: Your Honour, I understand that. Our expectation is

17 only that the Court reaches fair decisions that take all the circumstances

18 into account and reaches them at the right time. We're suggesting in

19 relation to this matter that the right time to set those numbers under 73

20 ter is not now, and in fact is not tomorrow either; that more information

21 and more consideration is required, and in the light of such information,

22 the opportunity, which is easily obtainable, because we'll be back in

23 Court, the opportunity of making further submissions based on that updated

24 situation.

25 JUDGE ORIE: Mr. Stewart, perhaps not to be done orally. I think

Page 17303

1 it takes 15 minutes. You had this 800 hours in your mind. Could you

2 perhaps briefly either put on half a piece of paper how you reached this

3 total amount?

4 MR. STEWART: Your Honour, isn't it better if I do it orally?

5 Mr. Krajisnik is here --

6 JUDGE ORIE: Okay. Fine. If you can do it. But I'm also looking

7 at the time. The tapes, I'm aware of the limitations we have.

8 MR. STEWART: It's a good example of where the issue is

9 actually --

10 JUDGE ORIE: Okay.

11 MR. STEWART: -- more important than the time and tape

12 restrictions, and there is one item left on the agenda anyway,

13 Your Honour.

14 JUDGE ORIE: There is -- we have -- yes. That's still on the

15 agenda. And I have one tiny little point to raise as well. Please, the

16 800 hours. You know I like math.

17 MR. STEWART: We love it, Your Honour. It's this: I can't say

18 that 350 number was in my head yesterday, but it was something like that.

19 But the 350 number that I gave, Your Honour, this morning, if we take 60

20 per cent of 350, that's 210, so that would be 560. I'm not even counting

21 re-examination and bits and bobs and so on. If we take 175 for

22 Mr. Krajisnik, then I think 60 per cent of 175 is 105.

23 JUDGE ORIE: Just to understand you well: You say if the accused

24 is called as a witness in his own case, this should add to the number of

25 hours for the presentation?

Page 17304

1 MR. STEWART: Well, Your Honour, if I may just finish the

2 arithmetic.


4 MR. STEWART: 175 for Mr. Krajisnik, 105 for his cross-examination

5 on the 60 per cent guideline, that gives 280. So that's 560 plus 280,

6 which is 840. I have left out of the calculation re-examination, Bench's

7 questions, which may add another 20, 30. I'd have to look at the figures.

8 But that may add 30. Basically, Your Honour, Your Honours, I was then

9 rounding down. That's what I was doing, starting from that principle

10 that, yes, there is a very strong argument for 100 per cent time, as has

11 been granted in Milosevic and Oric; in fact, in Milosevic it may have

12 stretched. I'm sorry, they weren't granted 100 per cent in Oric. I'm

13 reminded that was a slightly more complicated situation. But in

14 Milosevic, which is -- these two cases, Mr. Milosevic's case and

15 Mr. Krajisnik's case, are the most wide-ranging cases, by far, for any

16 defendant who is actually physically present in The Hague at the moment.

17 And on that level, this case is comparable to that case.

18 So, Your Honour, in principle, we do submit that that allowance,

19 plus Mr. Krajisnik, is a fair starting point. However, Your Honour,

20 taking a pragmatic course, and of course allowing for the fact that

21 notwithstanding that there is bound to be some grounds that is simply

22 conveniently and usefully covered by Mr. Krajisnik where then the need for

23 corroboration in relation to some areas is not obvious. It may be that

24 there are certain areas he can cover where there would then not be any

25 perhaps massive difficulty in the Trial Chamber accepting that evidence up

Page 17305

1 to a point. That's a view, that's a judgement the Defence would have to

2 make. So there is a rounding down there. Because if we did have -- I was

3 just looking for the actual figures. But if we did have the 560 plus the

4 280 and then we had a -- appropriate allowance for Bench's questions,

5 which during the course of the Prosecution case --

6 JUDGE ORIE: Approximately 10 per cent.

7 MR. STEWART: -- ran out at -- it ran out at about 30-something.

8 Yes, in ours, it ran out at about 35 to 40 hours, something like that,

9 just I think short of 40 hours. So there was something like about 50

10 hours all together of re-examination, Bench's questions. There then was

11 some further examinations. There's something like 50 hours in the

12 Prosecution case, so that we find --

13 JUDGE ORIE: About 900 we are now. And you did not include any of

14 the procedural issues.

15 MR. STEWART: I left those out altogether, Your Honour.

16 JUDGE ORIE: Just for my understanding.

17 MR. STEWART: Absolutely, Your Honour, so one knows what it is

18 we're comparing. I did leave those out altogether. We see how it's gone

19 so far. It's slightly unpredictable, but it's averaged out at around

20 50 -- 15 per cent. It may be everybody can improve on that as we go

21 along and that some of the issues are water under the bridge. So I've

22 left those out.

23 JUDGE ORIE: The Chamber certainly wants to reduce the number of

24 hours spent on the procedural issues.

25 MR. STEWART: So to the Defence, Your Honour.

Page 17306


2 MR. STEWART: So that's 840 plus, did I say, 50, so it's coming up

3 to about 900. So I had made -- of course it's got to be a bit re-bust,

4 that reduction. I simply at this stage made that reduction of something

5 like getting on for about 100 hours.

6 JUDGE ORIE: I just want to know approximately how you calculated.

7 Thank you for your information.

8 MR. STEWART: That's the essential basis of the calculation.

9 JUDGE ORIE: Then we have -- let me deal with the simple matter.

10 The Chamber is informed that the Defence would like to make an opening

11 statement at the beginning of the Defence case.

12 MR. STEWART: Yes, Your Honour.

13 JUDGE ORIE: Could you give us an estimate on the time you would

14 need for that?

15 MR. STEWART: Your Honour, we expect that it would be, for all

16 practical purposes, Monday, the day. We would expect to finish within the

17 day.


19 MR. STEWART: But not with any significant margin. We certainly

20 had planned on the footing that the witness would be here, would start his

21 evidence first thing Tuesday morning.

22 JUDGE ORIE: Yes. Then I should inform you that on that

23 Wednesday, when I did not do it yet, that we'll have an early finish, one

24 hour earlier than usual. And the Chamber, of course, would not very much

25 like to see that the witness would have to return. I take it that

Page 17307

1 three-quarters of a day should be abundantly sufficient for this witness.

2 MR. STEWART: Your Honour, we were informed of that, thank you, a

3 few days ago. We built that into our calculation. We certainly have no

4 intention of producing a situation where that witness would be stuck with

5 unfinished evidence by business on Wednesday.

6 JUDGE ORIE: So the final item on the agenda, then, is 3(a)(8).

7 Mr. Stewart.

8 MR. STEWART: Well, Your Honour, as far as Mr. Krajisnik is

9 concerned, I really do not wish this morning to add anything to -- very

10 much at all to what he's said, except that it is always a matter of

11 concern to a Defence team that -- well, with the inevitable pressures,

12 their client should not be subjected, feel undue pressure, whatever that

13 is. And of course, when we do go to see Mr. Krajisnik, and I sincerely

14 hope that -- the last time I saw Mr. Krajisnik was yesterday,; I sincerely

15 hope that I will see him again in a meeting in the very near future and

16 that the supposedly permanent break in our relations turns out to be only

17 a temporary and short-lived break. But when we do see Mr. Krajisnik, of

18 course, and I hope Mr. Krajisnik won't be in the least bit offended by

19 this, he's sitting on the other side of the table from us, so of course we

20 can see, as he can with us, we can see from day to day and week to week

21 when we see Mr. Krajisnik what frame of mind he's in and how he is and so

22 on. We simply say, Your Honour, that it must always be, and is currently,

23 a matter to have -- to which to have careful regard. I don't really want

24 to say anything more than that, Your Honour. I hope Your Honours are

25 understanding the Defence position in relation to that.

Page 17308

1 So far as the schedule of the trial is concerned, what

2 Your Honours have in mind is pretty punishing. The schedule that was

3 followed, really from the end of February, but particularly then during

4 May, June, and July, was extremely punishing. The Trial Chamber is

5 entitled to expect tough professional lawyers who, on Darwinian

6 principles, are still here doing their job, to take on a heavy buffered.

7 There are sometimes limits, and frankly, Your Honour, those limits were

8 exceeded during that summer period. They were exceeded. They were beyond

9 the professional capacity of the counsel team on the Defence side. I

10 don't want to go into any detail about that whatever. But the facts and

11 actually what happened demonstrate that that timetable was beyond the

12 proper professional capacity of the Defence team. And that's based on my

13 assessment, my direct experience of what happened, and after 30-something

14 years in practice as a barrister.

15 Your Honour, I'm very concerned that that does not happen again.

16 It had happened, in fact, previously, at the end of the previous year, and

17 oddly enough, the problem was only solved at the last minute by

18 Judge El Mahdi's retirement. The Defence team at that point was on the

19 verge of collapse and could not have got through to Christmas. That was

20 already my assessment. And we were saved that embarrassment, that crisis,

21 accidentally, by the fact that Judge El Mahdi retired from the case and

22 the last couple of weeks, which would have involved sitting, did not in

23 fact involve day by day witnesses until Christmas.

24 So that's once that it almost happened and we were just saved

25 accidentally. The second time, it actually did happen. And the fact that

Page 17309

1 we were here in Court, physically standing on the 22nd of July does not

2 mean it didn't happen, because it did. And I can give chapter and verse,

3 but I'm certainly not going to give it in a public court and I don't

4 actually wish to have to give it at all.

5 Your Honour, I'm extremely concerned that it doesn't happen again.

6 I'm most concerned that the pressure on Mr. Krajisnik is fair and that it

7 is carefully monitored at all times. But in fairness to Mr. Krajisnik,

8 apart from the individuals concerned, it's of the utmost importance that

9 nobody, for whatever budgetary reasons or timetable reasons or commitment

10 reasons or scheduling reasons or completion strategy reasons or anything,

11 nobody imposes an undue burden on the human beings who are involved. And

12 I simply ask for that to be carefully monitored, carefully considered.

13 Your Honours know, because I've been perfectly frank about it. I

14 am going to have two weeks off. I'm going to have them over the next

15 three weeks. And I'm going to, because I have to. And Mr. Josse is a

16 very tough, supportive co-counsel, but he will be on his own for those two

17 weeks, which will include the week when we're not sitting.

18 That's not saying to the Court -- it's not a gun to the court's

19 head or anything like that. I simply have to do that, and that's a

20 consequence of the schedule that we've had over the last few months. We

21 can't do everything. So that's the position, Your Honours. We're just

22 asking for -- we're expecting to work very hard. We are expecting it to

23 be high pressure. But we do not expect to be pushed beyond reasonable

24 professional requirements. We are not to be expected to give some

25 indirect subsidy to the costs and the times and the schedules and so on

Page 17310

1 for this institution beyond what can fairly be required from a team of

2 tough and conscientious professionals, in which I include all my support

3 staff.

4 JUDGE ORIE: Thank you, Mr. Stewart. We've gone through all the

5 items of the agenda. Is there anything else to be raised?

6 MR. HARMON: Nothing on behalf of the Prosecution, Your Honour.

7 MR. STEWART: Nor the Defence, Your Honour.

8 JUDGE ORIE: Then we'll adjourn until next Monday, 9.00, when

9 we'll hear the opening statement of the Defence and when the presentation

10 of the Defence case will start. We adjourn until then.

11 --- Whereupon the hearing adjourned at 1.34 p.m.,

12 to be reconvened on Monday, the 10th day of

13 October 2005, at 9.00 a.m.