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
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
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.
22 JUDGE ORIE: Yes.
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
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
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
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
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 --
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.
22 JUDGE ORIE: Yes.
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
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
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
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
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
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.
7 JUDGE ORIE: Yes.
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
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.
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.
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
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
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
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
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
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
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
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.
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.
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
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.
24 JUDGE ORIE: Yes.
25 MR. HARMON: And his summary appears for Your Honour's benefit on
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
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?
21 JUDGE ORIE: Yes.
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
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
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
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
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
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
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.
25 JUDGE ORIE: Yes.
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
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
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
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
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
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
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.
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
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
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
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
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
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.
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
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
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
1 presented in respect of the Prosecution's case and the indictment. Thank
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
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
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.
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.
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,
19 JUDGE ORIE: 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
24 MR. STEWART: Indeed, Your Honour.
25 JUDGE ORIE: Please introduce the matter you'd like to raise.
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.
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
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
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
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
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
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
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)
6 JUDGE ORIE: Yes.
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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?
8 JUDGE ORIE: Yes.
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
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
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
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.
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
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
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
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
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
1 fulfilling its obligation to its public. Thank you.
2 MR. STEWART: Your Honour. May I comment, Your Honour?
3 JUDGE ORIE: Yes.
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
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
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
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
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.
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
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,
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
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
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
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
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
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
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
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
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
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
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
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
25 JUDGE ORIE: Yes.
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
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
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
25 There's one final issue I'd like to raise, but I'm just looking at
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
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,
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.
9 JUDGE ORIE: Yes.
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.
14 JUDGE ORIE: Yes.
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
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
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
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
20 I hope that answers.
21 JUDGE ORIE: Yes.
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
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
25 JUDGE ORIE: Mr. Stewart, perhaps not to be done orally. I think
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?
1 MR. STEWART: Well, Your Honour, if I may just finish the
3 JUDGE ORIE: Yes.
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
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.
1 JUDGE ORIE: Fine.
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
18 JUDGE ORIE: Yes.
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
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.
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
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
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
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.